State Of Rajasthan vs Shree Cement Limited
2022 Latest Caselaw 12577 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Special Appeal Writ No.1670/2018

1. The State of Rajasthan through the Chief Secretary, Secretariat, Jaipur (Rajasthan) - 302001.

2. The Minister of Mines, Govt of Rajasthan, Secretariate, Jaipur (Rajasthan) - 302001.

3. The Principal Secretary to Govt., Govt. of Rajasthan, Mines (Group) Department, Secretariat, Jaipur (Rajasthan) - 302001.

4. The Principal Secretary (Mines) Department of Mines, Govt. of Rajasthan, Secretariat, Jaipur (Rajasthan) - 302001.

5. The Joint Secretary, Government of Rajasthan, Mines (Gr.-2) Department, Secretariat, Jaipur (Rajasthan) - 302001.

6. The Director, The Directorate of Mines & Geology, Khanij Bhawan, Shastri Circle, Udaipur - 313001 (Rajasthan).

7. The Mining Engineer, Department of Mines & Geology Government of Rajasthan, Jaisalmer (Rajasthan).

----Appellants

Versus

1. Shree Cement Limited, Regd. Office : Bangur Nagar, Post Box No.33, Beawar - 305901, District Ajmer (Rajasthan) through its Joint Vice President (Legal) & Power of Attorney Holder - Shri S.L. Bhansali S/o late Shri Pukh Raj Bhansali, Aged about 59 years, Resident of A-8, Shree Vihar, Shree Cement Limited, Bangur Nagaur, Beawar - 305901, District Ajmer (Rajasthan)

2. The Union of India through the Secretary, Ministry of Mines, Department of Mines, Shastri Bhawan, Dr. Rajendra Prasad Road, New Dlehi - 110001.

----Respondents

For Appellants : Mr. Sandeep Shah, AAG/Sr. Advocate assisted by Ms. Akshiti Singhvi, AAAG

For Respondent No.1 : Mr. Kamlakar Sharma, Sr. Advocate assisted by Ms. Alankrita Sharma Mr. Ramit Mehta Mr. Tarun Dudia Mr. Madhusudan Singh

(2 of 11) [SAW-1670/2018]

HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MR. JUSTICE FARJAND ALI

Judgment

20/10/2022

By the Court (Per Hon'ble Mr. Vijay Bishnoi, J)

This intra court special appeal writ has been preferred on

behalf of the appellant-State being aggrieved with the order dated

18.09.2017 passed by the learned Single Judge of this Court in

S.B. Civil Writ Petition No.2414/2016 (Shree Cement Ltd. Vs. UOI

& Ors.), whereby the learned Single Judge while placing reliance

on the judgment dated 23.08.2017 rendered by the learned Single

Judge of this Court at Bench Jaipur in M/s. Wonder Cement

Limited Vs. State of Rajasthan & Ors. (S.B. Civil Writ

Petition No.126/2017) allowed the writ petition filed by the

respondent No.1-Company and quashed the orders dated

17.10.2015 and 27.10.2015 of cancelling the Letter of Intent

(hereinafter to be referred as 'the LOI') issued in favour of the

respondent No.1-Company.

Learned Single Judge vide impugned order dated 18.09.2017

has directed that the appellant-State shall proceed to consider the

case of the respondent No.1-Company for grant of mining lease in

accordance with law within three months from the date of receipt

of the order while observing that it shall not raise any objection

with respect to the limitation in reference to the Section 10A(2)(C)

of the Mines and Minerals (Development and Regulation) Act,

1957 (hereinafter to be referred as 'the Act of 1957').

(3 of 11) [SAW-1670/2018]

Brief facts of the case are that pursuant to the applications

invited by the appellant-State vide Rajasthan Gazette Notification

dated 14.10.2010 notifying the areas for grant of mining lease for

mining the mineral Limestone in various Blocks of District

Jaisalmer, the respondent No.1-Company applied for grant of

mining lease for mining the mineral Limestone (Cement Grade) in

Block - Parewar (SN-V) District Jaisalmer. The appellant-State on

31.12.2014, after deciding the priority on merits in terms of

Section 11(4) read with Section 11(3) of the Act of 1957, issued

LOI in favour of the respondent No.1-Company for mining the

mineral Limestone (Cement Grade) over an area of 9.12 sq. kms.

of Block - Parewar (SN-V) Tehsil and District Jaisalmer subject to

fulfillment of 5 conditions of the LOI.

On 12.01.2015 vide Gazette of India, the Central

Government promulgated an ordinance to amend the Act of 1957

in the name of Mines and Minerals (Development and Regulation)

Amendment Ordinance, 2015 (hereinafter to be referred as 'the

Ordinance of 2015'). In the Ordinance of 2015, it is provided that

the State Government can grant mining lease in favour of the LOI

holders subject to the condition that LOI is issued prior to issuance

of the Ordinance of 2015 and the conditions of LOI are fulfilled

within a period of two years from the date of commencement of

the said Ordinance of 2015. However, the appellant-State vide

orders dated 17.10.2015 and 27.10.2015 cancelled all the LOIs on

the ground that several irregularities have been committed while

issuing the same.

It is to be noticed that on 31.12.2014, several LOIs were

issued by the appellant-State in favour of several companies

(4 of 11) [SAW-1670/2018]

including the respondent No.1-Company, however, later on, all the

said LOIs were cancelled by it vide orders dated 17.10.2015 and

27.10.2015. Subsequently, some of the companies, in whose

favour the LOIs were issued, filed revision petitions before the

Central Government and some of the companies directly

challenged the action of the appellant-State of cancelling the LOIs

by way of filing writ petitions before this Court.

The action of the appellant-State of cancelling the LOIs was

set aside in some of the cases by the Central Government and in

some of the cases by this Court mainly on the ground that before

cancellation of those LOIs, opportunity of hearing was not granted

to the LOI holders.

In the present case, the respondent No.1-Company instead

of filing revision petition before the Central Government directly

filed a writ petition bearing SBCWP No.2414/2016 before this

Court and the learned Single Judge while issuing notices in that

writ petition on 11.03.2016 passed an interim order directing the

parties to maintain status quo regarding the area, which forms the

subject matter of the LOI dated 31.12.2014.

Finally, vide impugned order dated 18.09.2017, the writ

petition bearing SBCWP No.2414/2016 was allowed by the learned

Single Judge of this Court while placing reliance on the judgment

dated 23.08.2017 rendered in the case of M/s. Wonder Cement

Limited (supra) and quashed the orders dated 17.10.2015 and

27.10.2015 with a direction that the appellant-State shall proceed

to consider the case of the respondent No.1-Company for grant of

mining lease in accordance with law within three months from the

date of receipt of the order and further directed that the

(5 of 11) [SAW-1670/2018]

appellant-State shall not raise any objection with respect to the

limitation in reference to the Section 10A(2)(C) of the Act of 1957.

Learned counsel for the appellant-State has argued that the

appellant-State is not aggrieved with the impugned order passed

by the learned Single Judge to the extent of quashing the orders

dated 17.10.2015 and 27.10.2015 of cancelling the LOI issued in

favour of the respondent No.1-Company, however, it is aggrieved

with the directions given by the learned Single Judge that the

appellant-State shall proceed to consider the case of the

respondent No.1-Company for grant of mining lease straightway

without allowing it to examine the case of the respondent

No.1-Company by a duly constituted committee as directed in the

case of M/s. Karni Mines & Minerals Vs. State of Rajasthan

& Ors. (S.B. Civil Writ Petition No.8179/2016) and other

connected writ petitions decided on 30.08.2017.

Learned counsel for the appellant-State has also argued that

the learned Single Judge has erred in relying on the decision

rendered in the case of M/s. Wonder Cement Limited (supra)

as the said case is clearly distinguishable from the case of the

respondent No.1-Company. It is submitted that in the case of

M/s. Wonder Cement Limited (supra), all the conditions

mentioned in the LOI were fulfilled prior to 11.01.2017, whereas

in the present case, the condition No.1 was not fulfilled till the cut-

off date i.e. 11.01.2017. It is also contended that the said

condition No.1 was not fulfilled when the writ petition bearing

SBCWP No.2414/2016 was filed by the respondent No.1-Company

and even was not fulfilled when the impugned order was passed.

                                         (6 of 11)                 [SAW-1670/2018]


     Learned     counsel     for    the      appellant-State       has    further

contended that in SBCWP No.2414/2016 filed by the respondent

No.1-Company, no prayer was made for grant of mining lease or

proceeding for the same and in such circumstances, the learned

Single Judge has erred in giving positive direction for grant of

mining lease in favour of the respondent No.1-Company.

Learned counsel for the appellant-State has submitted that

even in similar type of cases, the learned Single Judge has already

observed that the State Government is free to examine each case

by constituting a committee of three senior officials, therefore, a

similar direction is required to be issued in the present case also.

Learned counsel for the appellant-State has, therefore, prayed

that the impugned order dated 18.09.2017 passed by the learned

Single Judge may kindly be quashed and the appellant-State be

allowed to examine the case of the respondent No.1-Company by

a duly constituted committee of the officials of the State

Government and thereafter to decide the case of the respondent

No.1-Company in accordance with law on the basis of the report of

the committee.

Per contra, learned counsel appearing for the respondent

No.1-Company has vehemently opposed the prayer of the

appellant-State and submitted that the case of the respondent

No.1-Company is squarely covered by the decision rendered by

the learned Single Judge in the case of M/s. Wonder Cement

Limited (supra), therefore, there is no illegality in passing the

impugned order dated 18.09.2017. It is further submitted that in

the case of the respondent No.1-Company, no such direction, as

given in the case of M/s. Karni Mines & Minerals (supra), can

(7 of 11) [SAW-1670/2018]

be given because inquiry regarding issuance of LOI in the case of

the respondent No.1-Company was already conducted and the

State Government itself filed a report of this effect before the

Division Bench of this Court at Bench Jaipur in the public interest

litigation (PIL) being Ram Singh Kaswan Vs. UOI & Ors. (D.B.

Civil Writ Petition No.5940/2015) while claiming that no

illegalities or irregularities have been committed in issuance of

LOIs in favour of the respondents. It is submitted that the learned

Single Judge has rightly observed that in view of the observations

of the Division Bench of this Court at Bench Jaipur in the case of

Ram Singh Kaswan (supra), it is not required in the case of the

respondent No.1-Company to direct the appellant-State to

examine its case through a committee of the State Government.

It is argued by learned counsel for the respondent

No.1-Company that the respondent No.1-Company took all the

steps to fulfill the condition No.1 of the LOI prior to cut-off date

i.e. 11.01.2017. It is submitted that it is an omission on the part

of the appellant-State as it has failed to obtain area relaxation as

per the provision of Section 6(1)(b) of the Act of 1957 from the

Central Government, the condition No.1 could not be fulfilled by

the respondent No.1-Company. Learned counsel for the

respondent No.1-Company has argued that default/omission on

the part of the appellant-State cannot cause prejudice or

adversely affect the right of the respondent No.1-Company.

In support of the above contention, learned counsel for the

respondent No.1-Company has placed reliance on the decision

dated 19.03.2007 rendered by the Hon'ble Supreme Court in

(8 of 11) [SAW-1670/2018]

Kusheshwar Prasad Singh Vs. State of Bihar and Others

reported in (2007) 11 Supreme Court Cases 447.

Learned counsel for the respondent No.1-Company has,

therefore, prayed that the impugned order dated 18.09.2017

passed by the learned Single Judge is not liable to be interfered

with and the instant special appeal writ filed by the

appellant-State is liable to be dismissed.

Heard learned counsel for the parties.

The only question remains to be decided as to whether the

learned Single Judge has rightly directed the appellant-State to

proceed to consider the case of the respondent No.1-Company for

grant of mining lease in accordance with law within specified time

limit without keeping it open for the appellant-State to see

whether the LOI issued in favour of the respondent No.1-Company

is in accordance with law or not.

True, it is that in the case of M/s. Karni Mines & Minerals

(supra) and in the cases of other companies, the learned Single

Judge while quashing the orders dated 17.10.2015 and

27.10.2015 directed the State Government to pass a fresh order

in accordance with law after examining each case separately by a

duly constituted committee comprising of at least three senior

officials, however, in the case of the respondent No.1-Company,

the learned Single Judge has not passed the similar order while

taking into consideration the observations made by the Division

Bench of this Court at Bench Jaipur in case of Ram Singh

Kaswan (supra) decided on 12.05.2015, whereby the said writ

petition (PIL) challenging the issuance of LOIs in favour of

respondents was dismissed while taking note of the stand of the

(9 of 11) [SAW-1670/2018]

State Government that there was no illegality in issuance of

mining lease in favour of the respondents.

In our view, the learned Single Judge has rightly not passed

the similar order as passed in the case of M/s. Karni Mines &

Minerals (supra) because in the case of the respondent

No.1-Company, the State Government had already took a stand in

the case of Ram Singh Kaswan (supra) that there was no

illegality in issuance of the LOIs in favour of the respondents.

So far as the argument of the appellant-State that the

respondent No.1-Company has not fulfilled the condition No.1 of

the LOI till expiry of cut-off date is concerned, the same is also of

no substance.

It is noticed that the LOI was issued in favour of the

respondent No.1-Company on 31.12.2014 and the respondent

No.1-Company was required to fulfill around five conditions before

the cut-off date i.e. 11.01.2017.

As per the case of the appellant-State, the respondent

No.1-Company has failed to fulfill the condition No.1 prior to cut-

off date i.e. 11.01.2017 and, therefore, no direction can be issued

by the learned Single Judge for consideration of the case of the

respondent No.1-Company for grant of mining lease as directed in

the case of M/s. Wonder Cement Limited (supra) because in

that case all the conditions of the LOI were admittedly fulfilled

prior to the cut-off date.

It is to be noticed that the condition No.1 of the LOI dated

31.12.2014 is regarding approval of progressive mine closure plan

or approval of mine plans and it is not in dispute that after

issuance of LOI dated 31.12.2014, the respondent No.1-Company

(10 of 11) [SAW-1670/2018]

immediately submitted the draft copies of the required plans, as

per the condition No.1 of the LOI, before the Indian Bureau of

Mines (hereinafter to be referred as 'the IBM'). The IBM conducted

the site inspection on 17.07.2015 and asked the respondent

No.1-Company to furnish final and fair sets, which were submitted

by the respondent No.1-Company on 23.10.2015. However, the

IBM returned the maps on the ground that the State Government

has not obtained the area relaxation as provided under Section

6(1)(b) of the Act of 1957. In the meantime, the LOI issued in

favour of the respondent No.1-Company was cancelled by the

appellant-State vide orders dated 17.10.2015 and 27.10.2015.

In such circumstances, it cannot be said that there was any

fault on the part of the respondent No.1-Company in not getting

approval of progressive mine closure plan or approval of the mine

plan from the Mining Department. More over, the order for area

relaxation was not required to be obtained by the State

Government in view of the fact that on 12.05.2016, the Central

Government already increased the area from 10 sq. kms. to 50

sq. kms. in respect of the mineral Limestone in the State of

Rajasthan.

As the learned Single Judge had already passed an interim

order in SBCWP No.2414/2016 filed by the respondent

No.1-Company directing the parties to maintain status quo

regarding the area, which forms the subject matter of the LOI

issued in favour of the respondent No.1-Company, the respondent

No.1-Company again applied before the IBM for approval of

mining plan, however, the IBM did not approve the same in view

of the status quo order passed by the learned Single Judge but

(11 of 11) [SAW-1670/2018]

ultimately the mining plans were approved on 30.05.2018,

obviously after passing of the impugned order dated 18.09.2017.

Be that as it may, the fact remains that there is no fault on

the part of the respondent No.1-Company, who had immediately

approached the Mining Department for approval of mine plans as

per the requirements of the LOI but the same could not be

granted prior to the cut-off date only because the State

Government failed to obtain area relaxation from the Central

Government.

The Hon'ble Supreme Court in the case of Kusheshwar

Prasad Singh (supra) has held as under :-

"16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, "a wrongdoer ought not to be permitted to make a profit out of his own wrong"."

In view of the above discussions, we don't find any case for

interference, therefore, this special appeal writ is hereby

dismissed.

                                   (FARJAND ALI),J                                            (VIJAY BISHNOI),J




                                    Abhishek Kumar
                                    S.No.46









Powered by TCPDF (www.tcpdf.org)