N. Rajashekar vs Union Of India And Ors
2015 Latest Caselaw 7901 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 14th October, 2015

+                         W.P.(C) NO.5499/2012

        N. RAJASHEKAR                                        ..... Petitioner
                    Through:          Ms. Shweta S. Parihar, Adv.

                                   Versus

    UNION OF INDIA AND ORS                     ..... Respondents

Through: Mr. Vivek Goyal, Adv. for R-1.

Mr. Joseph Aristotle S. & Mr. M.B.

Elak Kumaran, Advs. for R-2.

Mr.Mayank Kshirsagar & Mr. Balaji Srinivasan, Advs. for R-3.

Mr. Rajeev Sharma with Ms. Radhalakshmi R. & Ms. Priyanka Raj, Advs.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The petition impugns the order dated 28th February, 2012 of the

Revision Authority (Central Government) under the Mines and Minerals

(Development and Regulation) (MMDR) Act, 1957 of dismissal of the

Revision Application (under Section 30 of the Act read with Rule 55 of the

Mineral Concession Rules, 1960) preferred by the petitioner against the

order dated 20th / 25th October, 2010 of the respondent No.2 Government of

State of Karnataka.

2. The petition came up before this Court first on 3rd September, 2012

when the counsel for the petitioner confined the challenge in the petition to

non consideration of the pertinent parameters in the matter of grant of

mining lease, both by the Revision Authority as well as by the Original

Authority.

3. Notice of the petition was issued, though interim relief sought was not

granted. The matter has thereafter been adjourned from time to time. No

counter affidavits have been filed by any of the respondents despite

opportunity.

4. The counsel for the petitioner today also seeks adjournment on the

ground that the main counsel Mr. Ankur S. Kulkarni is not available.

5. However, there is no justification for non appearance of the main

counsel when the matter is listed before this Court and the petition as old as

this cannot be kept pending awaiting the counsels.

6. The counsel for respondent No.3 Mysore Minerals Ltd. (MML) has

been heard and the file has been perused.

7. The counsel for the respondent No.3 MML has at the outset drawn

attention to the order dated 15th April, 2014 recording the prima facie view

that this Court is not the forum conveniens for the present controversy and

drawing attention of the counsels to Sterling Agro Industries Ltd. Vs.

Union of India 181 (2011) DLT 658 (LB). He contends that since the

matter relates to the mining lease of the State of Karnataka and the petitioner

as well as the contesting respondents No.2 and 3 are also not situated within

the territorial jurisdiction of this Court, the parties should be relegated to the

jurisdiction of the High Court of Karnataka at Bangalore. Reliance is also

placed on the judgment of the Division Bench of this Court in Chinteshwar

Steel Pvt. Ltd. Vs. Union of India 2013 LawSuit (Del) 4608 in this regard.

8. I have however enquired from the counsel for the respondent No.3

MML, what is the local flavour in the present litigation, owing whereto this

Court though admittedly having territorial jurisdiction to entertain this

petition owing to the Revision Authority whose order is impugned being

located within the territorial jurisdiction of this Court, should refuse to do so

because of the High Court of Karnataka being a more appropriate and

suitable Court to decide the controversy.

9. No such local flavour has been pointed out.

10. I am of the view that this Court would be justified in refusing to

exercise the jurisdiction on the ground of forum conveniens only if finds that

another High Court is the more appropriate and suitable Court to decide the

controversy. Else, if the matter does not entail knowledge of any local

flavour and entails only adjudication of legal issues, the recusal of

jurisdiction on such ground would not be proper. Reference in this regard

may be made to Jan Chetna Vs. Ministry of Environment & Forests 189

(2012) DLT 550 where a Division Bench of this Court held where the

challenge is purely legal and though relating to a project in the State of

Chhattisgarh, has no local flavour to hold that the High Court of

Chhattisgarh was better equipped to deal with the said issue rather than this

Court, the doctrine of forum conveniens cannot be invoked and jurisdiction

cannot be refused to be exercised.

11. A perusal of the record shows:

(i) that in pursuance to the public notice issued by the Government

of the State of Karnataka inviting applications for re-grant,

under Rule 59 (1) of the Mineral Concession Rules, 1960, of

mining rights, in land ad-measuring 147.18 acres in

Doddakanya, Yechagalli and Gaddanapur villages of

Nanjangud Taluk of Mysore district, for Dunite, Magnasite and

Chromite Minerals, the petitioner, respondent No.3 MML as

well as three others applied and the respondent No.2

Government of the State of Karnataka, after giving an

opportunity of hearing to all the applicants, vide order dated

20th / 25th October, 2010 granted the mining lease in favour of

the respondent No.3 MML, an undertaking of the Government

of Karnataka (GoK), and rejected the other applications

including of the petitioner;

(ii) aggrieved therefrom, the petitioner preferred the Revision

Application aforesaid;

(iii) it was the contention of the petitioner before the Revision

Authority that his application being first in priority, the

petitioner should have been granted the mining lease in

preference over the respondent No.3 MML;

(iv) the Revision Authority however, in the impugned order has

reasoned that since the area had been re-notified for re-grant

under Rule 59(1) as aforesaid, all applications received have to

be considered simultaneously and the contention of the

petitioner of having a preferential right for the reason of having

applied first, is not correct;

(v) the second ground urged by the petitioner before the Revision

Authority was that there was violation by the Original

Authority i.e. respondent No.2 Government of State of

Karnataka, of the principles of natural justice;

(vi) no merit has been found by the Revision Authority in the said

contention also, it being not disputed that the petitioner had also

been given personal hearing by the respondent No.2

Government of the State of Karnataka;

(vii) the third contention of the petitioner before the Revision

Authority was that the grant of mining lease in favour of the

respondent No.3 MML by the official of GoK who was a

nominee Director of the GoK on the Board of Directors of

respondent No.3 MML, was vitiated;

(viii) the same also did not find merit with the Revision Authority;

(ix) the Revision Authority has otherwise found that the respondent

No.3 MML was granted the mining lease taking into

consideration the experience in mining, manpower, machines,

financial status and proposed investments in the project and that

the State Government of Karnataka being the owner of the

minerals within the State territories has taken a decision in the

interest of the mineral development in the area.

12. I have perused the petition to see the grounds pleaded by the

petitioner on the aspect of non consideration of pertinent parameters, the

only ground to which the challenge in this petition was confined as

aforesaid.

13. The case of the petitioner is, i) that he is an engineer by profession; ii)

that he has worked for more than 30 years with Tata Iron and Steel

Company Ltd. (TISCO) as Engineer and Contractor and has lot of

experience in the field of mines and minerals; iii) that TISCO had been

carrying on the mining operations in the said area for over 85-90 years on

the basis of lease earlier granted by the Government of the State of

Karnataka and the petitioner thus has special knowledge of mining

operations of the said minerals in the area; iv) that the area came up for re-

grant only on surrender of the lease by the TISCO in 2003; v) that the

respondent No.2 GoK vide Notification dated 13th March, 2003 notified the

availability of the said area for re-grant of mining lease under Rule 59 supra

and invited applications for grant of mining lease; vi) that the petitioner,

vide application dated 9th May, 2003 applied for mining lease; vii) that

pursuant to the State Government processing the application of the

petitioner, the Senior Geologist conducted a spot inspection of the said area

and filed a report dated 6th June, 2003 stating the availability of Magnasite,

Chromite and Dunite in the said area and recommending it in favour of the

petitioner; viii) that the respondent No.3 MML on 6th April, 2004 filed its

application for grant of mining lease in the said area; ix) in further

consideration of the petitioner's application, the Tehsildar, Mysore Taluk

also conducted a spot inspection and submitted report dated 18 th May, 2004

recommending grant of mining lease in favour of the petitioner; x) the

Deputy Commissioner, Mysore also on 26th May, 2004 recommended grant

of mining lease in favour of the petitioner; xi) that the respondent No.2 GoK

vide its letter dated 17th June, 2004 sought approved mining plan from

Indian Bureau of Mines (IBM), consent letter from Karnataka State

Pollution Control Board (KSPCB) and Certificate from Department of

Environment and Ecology (DEE), from the petitioner in pursuance to the

application aforesaid of the petitioner; xii) that the petitioner accordingly

applied to the IBM and obtained approval dated 9th November, 2005 and

pursued the other permissions sought from him including of furnishing the

project details to the Ministry of Environment and Forest (MoEF); xiii) that

IBM on 10th January, 2008 approved the modified mining plan of the

petitioner; xiv) that in pursuance to the application of the petitioner for

consent from the KSPCB, the Expert Appraisal Committee conducted a

public hearing on 20th February, 2009 and the MoEF vide its letter dated 11th

May, 2009 sought clarification from the Ministry of Mines pertaining to

grant of mining lease stating that environment clearance is granted to the

applicant pursuant to mining lease notification; xv) that the petitioner on 10th

July, 2009 informed the respondent No.2 GoK of the status of the approvals

and clearances by IBM, KSPCB and MOEF and informed that environment

clearance will be granted pursuant to mining lease notification and requested

to issue the notification; xvi) that the respondent No.2 GoK on 24 th March,

2010 issued notice under Rule 26(1) to the petitioner asking him to submit

his representation in respect of mining lease operations; xvii) that however

the petitioner was shocked to receive the copy of the order dated 20th / 25th

October, 2010 of the respondent No.2 GoK recommending grant of mining

lease in favour of the respondent No.3 MML; and, xviii) that during the

pendency of the Revision Application, the State Government of Karnataka

allotted 10 acres of land from the aforesaid area for building a residential

school for minorities and which was challenged by the petitioner by filing a

writ petition before the High Court of Karnataka; in the said proceedings,

the State Government of Karnataka took a stand that it is cancelling the

recommendation for grant of mining lease in favour of respondent No.3

MML and in view whereof the said writ petition was disposed of with

liberty to the petitioner to revive if the lease in favour of the respondent

No.3 MML is not eventually revoked.

14. The petitioner, in the petition, has contended, a) that the order dated

20th / 25th October, 2010 of the respondent No.2 GoK is non reasoned and

contrary to Section 11(3) of the MMDR Act; b) that the respondent No.2

GoK by its conduct has created legitimate expectation in the petitioner and

is bound by promissory estoppel; c) that the Notification dated 13 th March,

2003 calling for applications was open ended without having a time limit for

receiving applications and which is contrary to MMDR Act and the Rules as

they provide for a 12 month period for disposal of applications; the

respondent No.3 MML had applied only after more than one year of the

notification; d) that the official of the Government of State of Karnataka

who heard and passed the order dated 20th / 25th October, 2010 was also a

Director on the Board of respondent No.3 MML and that the respondent

No.2 GoK had before the High Court of Karnataka in the writ petition

aforesaid informed of its decision to cancel the mining lease recommended

in favour of respondent No.3 MML. Reliance in the petition itself is placed

on Sandur Manganese and Iron Ores Ltd. Vs. State of Karnataka JT 2010

(10) SC 157 where the Supreme Court, finding that the government gave no

clear reasons to show as to why certain applicant was preferred over others,

had quashed the order of the State Government. It is contended that the same

is the position here.

15. Though no counter affidavits have been filed before this Court but the

respondent No.2 GoK in its response to the Revision Application before the

Revision Authority had pleaded:

(i) that in response to the Notification dated 13 th March, 2003

supra, five applications seeking grant of mining lease including

from the petitioner and the respondent No.3 MML were

received.

(ii) that all the five applicants were afforded personal hearing on

22nd April, 2010 under Rule 26(1).

(iii) that after assessing all the applications and taking into

consideration Section 11(4) of the MMDR Act, the

Government of State of Karnataka considered it appropriate to

grant mining lease to the respondent No.3 MML which has vast

experience in mining field since 1965;

(iv) that as per Section 11(4) of the MMDR Act, all applications

received in pursuance to the notification have to be considered

simultaneously as if all such applications have been received on

the same day and the State Government is to grant mining lease

to the applicant it may deem fit taking into consideration the

matters specified in Section 11(3).

(v) that an applicant has to produce relevant documents only after

final order is passed under Section 11(4) but the petitioner

furnished the documents without waiting for the final order.

16. The petitioner, in the petition, has not pointed out any provision

requiring priority to be given to the applicant who has obtained such

approvals or any other pertinent parameters which ought to have been

considered.

17. I have considered the case of the petitioner qua the contentions raised

in the petition.

18. The Revision Authority, in the impugned order, has affirmed the said

reasons. With respect to the approvals, which the petitioner claims to have

already obtained, the Revision Authority reasoned that obtaining thereof was

irrelevant inasmuch as the same were not required to be obtained prior to the

grant of mining lease. The said order of Revision Authority further records,

i) that the respondent No.3 MML was also impleaded as a party to the

revision petition and had filed its comments; ii) that the steps taken by the

petitioner of obtaining various approvals and the particulars / clarifications

sought from the petitioner were null and void since till then no lease had

been granted in favour of the petitioner and without which the said steps

could not have been taken; iii) that respondent No.3 MML is capable and

more competitive than the petitioner and hence there was no violation in

grant of mining lease in favour of the respondent No.3 MML; iv) that the

statutory documents and clearances have to be submitted only after grant of

mining lease; v) when compared to respondent No.3 MML, the petitioner's

experience in the mining field is less; vi) the respondent No.3 MML has got

manpower and machineries, no mention even whereof has been made by the

petitioner; vii) the respondent No.3 MML is having financial status and

ready to invest Rs.200 crores for the project; and, viii) though the petitioner

had submitted NOC from Deputy Commissioner, Mysore but the said NOC

had been withdrawn; the petitioner had filed a writ petition in the High

Court of Karnataka in this regard but which has been dismissed.

19. It is not as if the Government of State of Karnataka or the Revision

Authority have not paid any heed to all the said pleas of the petitioner. The

Government of the State of Karnataka in its order dated 20th / 25th October,

2010 chose respondent No.3 MML over the petitioner reasoning, (i) that the

respondent No.3 is a GoK undertaking, operating for 45 years in different

minerals especially in the backward areas of the State; (ii) that the

respondent No.3 had been forced to stop mining lease falling in Western

Ghats owing to the order of the Supreme Court, rendering 800 of its

manpower surplus and loss of revenues; (iii) that another Magnesite Mine

being operated by the respondent No.3 MML was going to be exhausted

shortly and the technical staff employed therein also would be rendered

workless; (iv) that the respondent No.3 MML has a sound financial

capability.

20. The contention of the senior counsel for the petitioner on the first date

of hearing i.e. 3rd September, 2012 as aforesaid that the pertinent parameters

in the matter of grant of mining lease had not been considered, cannot thus

be accepted.

21. The petitioner having limited the challenge in this writ petition to the

ground of non-consideration of the pertinent parameters by the Revision

Authority as well as by the Original Authority while coming to the

conclusion that respondent No.3 MML is more suitable for allocation of the

mine in issue, I am not required to deal on merits with the contentions of the

petitioner in the petition. The scope of the present writ petition has been

confined to considering only whether the pertinent parameters have been

considered or not.

22. I had however during the hearing also enquired from the counsels for

the respondents whether an undertaking of the State Government was

entitled to any weightage over others in the matter of grant of mining lease.

Though at that time the counsels were unable to state anything but the

counsel for the respondent No.3 MML has, after the order was dictated in

the Court and before it could be signed and released, handed over a copy of

the judgment of the Supreme Court in Monnet Ispat and Energy Ltd. Vs.

Union of India (2012) 11 SCC 1 highlighting paras 133, 134, 137, 138, 143,

144, 213, 214 and 215 thereof.

23. On a reading of the aforesaid judgment, I find that the Supreme Court

therein negatived the plea of promissory estoppel and legitimate expectation

in the matter of grant of mining lease. It was held that the doctrine of

promissory estoppel may be applied against the government where the

interest of justice, morality and common fairness dictated such a course and

where it is necessary to prevent fraud or manifest injustice; however the

government, under the doctrine of promissory estoppel cannot be asked to

do an act prohibited in law and in no case the doctrine of promissory

estoppel can be pressed into it to compel the government or a public

authority to carry out a representation or promise which is contrary to law or

which is outside the authority or power of the officer of the government or

the public authority to make. In this context, it was also held that no one has

a legal or vested right to grant of a mining lease. Else, in the said judgment,

in the context of the provisions of the MMDR Act providing for reservation

of mining areas by State Government for exploitation by the public sector, it

was held that the State Government's power as owner of land and minerals

vested in it is inseparable from its authority to make reservation of a

particular mining area within its territory for its own use and that setting

aside by a State of land owned by it for its own exclusive use and under its

dominance and control is an incident of sovereignty and ownership. It was

further held that the State Government's paramount right as owner of the

mines do not get affected by the MMDR Act. The sole rider is that the

discretion so exercised by the State Government should not suffer from any

legal flaw.

24. Though in the present case, the respondent No.2 GoK did not choose

to reserve the said area for exploitation by the public sector and invited

applications from public for grant of mining lease thereof and thus the

judgment aforesaid cannot be said to apply on all fours but in my view the

same nevertheless supports the proposition that the State Government even

while considering such applications, other things being equal, cannot be

faulted for exercising the discretion in the matter of grant of mining lease in

favour of a public sector undertaking rather than to a private party if it is of

the opinion that the same is in the interest of the State. That is what has

happened in the present case. It is not the case of the petitioner that he is in

any way better than the respondent No.3 MML in whose favour

recommendation for grant of mining lease has been made. The claim of the

petitioner for being better was premised only on his having applied prior in

point of time and his having taking various other steps. However both of the

said factors are found to be irrelevant and inconsequential in the matter of

grant of mining lease as aforesaid.

25. Earlier also, I find the Supreme Court to have in State of Tamil Nadu

Vs. M.P.P. Kavery Chetty (1995) 2 SCC 402 dismissed the challenge to

Rule 19A of the Tamil Nadu Minor Mineral Concession Rules, 1959 giving

preference to a State Government Company or a Corporation or Company

owned or controlled by the State Government holding that all things being

equal, having regard to the other requirements provided in the Rules, there is

nothing wrong in a State Government Company or Corporation being

preferred.

26. I therefore do not find any merit in the petition; the same is dismissed.

No costs.

RAJIV SAHAI ENDLAW, J.

OCTOBER 14, 2015 'gsr' (corrected & released on 24th December, 2015)