Supreme Court - Daily Orders
M/S. Kabini Minerals P.Ltd. vs M/S. Jsw Steel Limited . on 26 August, 2014
Bench: Kurian Joseph, Rohinton Fali Nariman
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8277 OF 2014
[ARISING OUT OF S.L.P. (C) NO. 28164 OF 2009]
M/S. KABINI MINERALS PVT. LTD. ... APPELLANT(s)
Versus
M/S. JSW STEEL LIMITED AND OTHERS ... RESPONDENT(s)
O R D E R
We have heard Mr. Dushyant Dave, learned
senior counsel for the appellant and Dr. Abhishek
Manu Singhvi, learned senior counsel for the
respondent No. 1.
2. Leave granted.
3. On 27.9.2007, the Secretary, Commerce &
Industry Department, Government of Karnataka sent a
communication to the Commissioner & Director of
Mines and Geology informing him that the Chief
Minister has ordered grant of mining lease for iron
ores to M/s. Kabini Minerals Pvt. Ltd. (appellant
Signature Not Verified herein) to an extent of 127.48 hectors area in
Digitally signed by
Pardeep Kumar
Date: 2014.09.04
12:18:30 SAST
Reason:
: 2 :
Thimmappanagudi Range in Sandur Taluk, Bellary
District. The Commissioner & Director of Mines and
Geology was requested to send the recommendation
for prior approval of the Central Government in
this regard.
4. Thereafter, the Secretary, Commerce &
Industry Department, Government of Karnataka sent a
letter to the Secretary to the Government of India,
Ministry of Mines on 4.10.2007 requesting him to
obtain and communicate the approval of the
Government of India as per Section 5(1) of the
Mines & Minerals (Development and Regulation) Act,
1957 (for short “MMDR Act”) for grant of mining
lease in favour of appellant over an area of 127.48
hectors in Thimmappanagudi Range in Sandur Taluk,
Bellary District for iron ore and manganese ore for
a period of 20 years.
5 The present respondent No.1 – M/s JSW
Steel Limited filed a writ petition before the High
Court challenging the communications dated
27.9.2007 and 4.10.2007.
: 3 :
6. The High Court vide its order dated
15.7.2009 quashed the above communications. It is
against this order that the present appeal, by
special leave, has been filed.
7. In Geomin Minerals and Marketing Pvt. Ltd.
vs. State of Orissa and others1, one of the
questions that fell for consideration was whether
the writ petition could be maintained against the
recommendation by the State Government seeking
prior approval of the Central Government under
Section 5(1) of the MMDR Act.
8. This Court considered the above question
in paragraphs 26,27,28, 29,40 & 42 of the report as
follows:
26. Under Section 5 of the MMDR Act, the
State Government cannot grant a
reconnaissance permit, prospective licence
or mining lease to any person unless
previous approval of the Central
Government has been obtained. The
proviso to Section 5(1) expressly
prohibits grant of PL except with
previous approval of the Central
Government as quoted hereunder.
Further,where Section 11(5) is invoked,
there also prior approval of the Central
Government is also required. The proviso
1
(2013)7 SCC 571
: 4 :
to Section 11(5) prescribes that prior
approval of the Central Government
shall be obtained "before passing any
order under the sub-section".
27. In the present case the State
Government has only made recommendations
and has sought approval of the Central
Government under proviso to Section 5(1)
and the proviso to Section 11(5) but no
final decision has been taken. The State
Government can pass final order granting
mining licence only if approval is
granted by the Central Government under
Section 5(1) or Section 11(5) which
reads as follows:
“5:Restrictions on the grant of
prospective licences or mining
lease.-
(1). A State Government shall not
grant a reconnaissance permit,
prospecting licence or mining lease
to any person unless such person—
a) is an Indian national, or a
company as defined in sub-section
(1) of section 3 of the Companies
Act, 1956 (1 of 1956); and
b) satisfies such conditions as may
be prescribed:
Provided that in respect of any
mineral specified in the First
Schedule, no reconnaissance permit,
prospecting licence or mining
lease shall be granted except with
the previous approval of the
Central Government.
* * *
11(5). Notwithstanding anything
contained in sub-section (2),
but subject to the provisions of
: 5 :
sub-section (1), the State
Government may, for any special
reasons to be recorded, grant a
reconnaissance permit, prospecting
licence or a mining lease, as the
case may be, to an applicant whose
application was received later in
preference to an applicant whose
application was received earlier:
Provided that in respect of
minerals specified in the First
Schedule, prior approval of
the Central Government shall be
obtained before passing any order
under this sub-section.”
28. Iron ore is a major mineral
specified in Para C of the First
Schedule. In matters of such major
mineral, even the State Government
itself cannot undertake prospective or
mining operations without having prior
consultation with the Central Government
as per Section 4(3) of the Act, and if
prospecting licence or mining lease is to
be granted to any other person, then
previous approval of the Central
Government is to be obtained under
proviso to Section 5(1). The
consideration of recommendation made by
the Central Government for grant of
prior approval is an exclusive
jurisdiction of the Central Government
under the MMDR Act, 1957 and there is
no good reason for pre-empting the
Central Government from considering the
merits of the recommendation.
29. Until the Central Government has
passed an order either granting or
refusing approval under Section 5(1) and
Section 11(5) of the Act, it would not be
: 6 :
permissible for any person to file a writ
petition under Article 226 of the
Constitution of India and any such
petition if filed would be premature.
In the instant case, the High Court
committed a grave error of law in
proceeding to observe that 'special
reasons' did not exist on invoking
Section 11(5) and that there was no
comparison of merits in the record.
The record has been shown to this Court
and it is apparent that the State
Government has tabulated and evaluated the
inter se merits and has concluded that
POSCO is more meritorious. All the
applicants were given a hearing. In the
circumstances, the High Court's
observations are not justified and in
fact the High Court appears to have
usurped the jurisdiction of the Central
Government in proceeding to make these
remarks. The scrutiny of the merits was
premature and the High Court should
have refrained from entering into the
merits.
XXX XXX XXX
40. The Central Government is required to
go through the relevant facts of each
case to determine whether the
recommendation is to be approved or
not. While deciding the question the
Central Government will keep in mind
the order which was passed by the
Revisional Authority(Central Government)
in the case of Dagara on 2nd May, 2008.
XXX XXX XXX
42. In view of the finding as recorded
above, we are of the view that the High
Court committed a grave error of law in
deciding the case on merits and
deciding the question of legality of the
: 7 :
recommendation made by the State
Government. In fact they should have left
the matter to the Central Government to
pass an appropriate order in accordance
with law instead of entertaining a
pre-mature writ petition. The State
Government by its recommendation having
forwarded the tabulated chart showing
inter se merit of each applicant, it
was not for the High Court to sit in
appeal to decide who amongst all is more
meritorious and is entitled for
preferential right.
9. It is, thus, laid down by this Court that
the filing of the writ petition against the
recommendation of the State Government to the
Central Government for prior approval under Section
5(1) of the MMDR Act should not be entertained
being premature. The Court held that the matter
should be left to the Central Government to pass an
appropriate order in accordance with law instead of
entertaining premature writ petition.
10. In light of the above legal position, the
impugned order cannot be sustained and it has to
: 8 :
be set-aside. We, accordingly, set-aside the order
dated 15.7.2009, impugned in the present appeal.
The State Government shall now be at liberty to
revive the communication dated 4.10.2007 and send
the same to the Central Government. The Central
Government shall consider the recommendation so
sent by the State Government after hearing the
appellant – M/s. Kabini Minerals Private Limited
and also the respondent No.1 – M/s. JSW Steel
Limited and take a call whether or not to grant
approval as sought for by the State Government.
11. We make it clear that we have not
expressed any opinion on the merits of the
appellant's application for grant of mining lease
over an area of 127.48 hectors in Thimmappanagudi
Range in Sandur Taluk, Bellary District for iron
ore and manganese ore for a period of 20 years.
: 9 :
Our order is confined to revival of the
communication dated 4.10.2007.
12. Civil Appeal is disposed of as above. No
costs.
.......................CJI.
(R.M. LODHA)
........................J.
(KURIAN JOSEPH)
NEW DELHI; ........................J.
AUGUST 26, 2014 (ROHINTON FALI NARIMAN)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8278 OF 2014
[ARISING OUT OF S.L.P. (C) NO. 30279 OF 2009]
M/S. KABINI MINERALS PVT. LTD. ... APPELLANT(s)
Versus
UNION OF INDIA AND OTHERS ... RESPONDENT(s)
O R D E R
Leave granted.
2. On 27.9.2007, the Secretary, Commerce &
Industry Department, Government of Karnataka sent a
communication to the Commissioner & Director of
Mines and Geology informing him that the Chief
Minister has ordered grant of mining lease for iron
ores to M/s. Kabini Minerals Pvt. Ltd. (appellant
herein) to an extent of 127.48 hectors area in
Thimmappanagudi Range in Sandur Taluk, Bellary
District. The Commissioner & Director of Mines and
Geology was requested to send the recommendation
for prior approval of the Central Government in
this regard.
: 2 :
3. Thereafter, the Secretary, Commerce &
Industry Department, Government of Karnataka sent a
letter to the Secretary to the Government of India,
Ministry of Mines on 4.10.2007 requesting him to
obtain and communicate the approval of the
Government of India as per Section 5(1) of the
Mines & Minerals (Development and Regulation) Act,
1957 (for short “MMDR Act”) for grant of mining
lease in favour of appellant over an area of 127.48
hectors in Thimmappanagudi Range in Sandur Taluk,
Bellary District for iron ore and manganese ore for
a period of 20 years.
4. The present respondent No.5 – M/s Deccan
Mining Syndicate filed a writ petition before the
High Court challenging the communications dated
27.9.2007 and 4.10.2007.
5. The High Court vide its order dated
15.7.2009 quashed the above communications. It is
against this order that the present appeal, by
special leave, has been filed.
: 3 :
6. In Geomin Minerals and Marketing Pvt. Ltd.
vs. State of Orissa and others1, one of the
questions that fell for consideration was whether
the writ petition could be maintained against the
recommendation by the State Government seeking
prior approval of the Central Government under
Section 5(1) of the MMDR Act.
7. This Court considered the above question
in paragraphs 26,27,28, 29,40 & 42 of the report as
follows:
26. Under Section 5 of the MMDR Act, the
State Government cannot grant a
reconnaissance permit, prospective licence
or mining lease to any person unless
previous approval of the Central
Government has been obtained. The
proviso to Section 5(1) expressly
prohibits grant of PL except with
previous approval of the Central
Government as quoted hereunder. Further,
where Section 11(5) is invoked, there
also prior approval of the Central
Government is also required. The proviso
to Section 11(5) prescribes that prior
approval of the Central Government
shall be obtained "before passing any
order under the sub-section".
27. In the present case the State
Government has only made recommendations
and has sought approval of the Central
Government under proviso to Section 5(1)
1 (2013)7 SCC 571
: 4 :
and the proviso to Section 11(5) but no
final decision has been taken. The State
Government can pass final order granting
mining licence only if approval is
granted by the Central Government under
Section 5(1) or Section 11(5) which
reads as follows:
“5:Restrictions on the grant of
prospective licences or mining
lease.-
(1). A State Government shall not
grant a reconnaissance permit,
prospecting licence or mining lease
to any person unless such person—
a) is an Indian national, or a
company as defined in sub-section
(1) of section 3 of the Companies
Act, 1956 (1 of 1956); and
b) satisfies such conditions as may
be prescribed:
Provided that in respect of any
mineral specified in the First
Schedule, no reconnaissance permit,
prospecting licence or mining
lease shall be granted except with
the previous approval of the
Central Government.
* * *
11(5). Notwithstanding anything
contained in sub-section (2),
but subject to the provisions of
sub-section (1), the State
Government may, for any special
reasons to be recorded, grant a
reconnaissance permit, prospecting
licence or a mining lease, as the
case may be, to an applicant whose
application was received later in
preference to an applicant whose
application was received earlier:
: 5 :
Provided that in respect of
minerals specified in the First
Schedule, prior approval of
the Central Government shall be
obtained before passing any order
under this sub-section.”
28. Iron ore is a major mineral
specified in Para C of the First
Schedule. In matters of such major
mineral, even the State Government
itself cannot undertake prospective or
mining operations without having prior
consultation with the Central Government
as per Section 4(3) of the Act, and if
prospecting licence or mining lease is to
be granted to any other person, then
previous approval of the Central
Government is to be obtained under
proviso to Section 5(1). The
consideration of recommendation made by
the Central Government for grant of
prior approval is an exclusive
jurisdiction of the Central Government
under the MMDR Act, 1957 and there is
no good reason for pre-empting the
Central Government from considering the
merits of the recommendation.
29. Until the Central Government has
passed an order either granting or
refusing approval under Section 5(1) and
Section 11(5) of the Act, it would not be
permissible for any person to file a writ
petition under Article 226 of the
Constitution of India and any such
petition if filed would be premature.
In the instant case, the High Court
committed a grave error of law in
proceeding to observe that 'special
reasons' did not exist on invoking
Section 11(5) and that there was no
comparison of merits in the record.
: 6 :
The record has been shown to this Court
and it is apparent that the State
Government has tabulated and evaluated the
inter se merits and has concluded that
POSCO is more meritorious. All the
applicants were given a hearing. In the
circumstances, the High Court's
observations are not justified and in
fact the High Court appears to have
usurped the jurisdiction of the Central
Government in proceeding to make these
remarks. The scrutiny of the merits was
premature and the High Court should
have refrained from entering into the
merits.
XXX XXX XXX
40. The Central Government is required to
go through the relevant facts of each
case to determine whether the
recommendation is to be approved or
not. While deciding the question the
Central Government will keep in mind
the order which was passed by the
Revisional Authority(Central Government)
in the case of Dagara on 2nd May, 2008.
XXX XXX XXX
42. In view of the finding as recorded
above, we are of the view that the High
Court committed a grave error of law in
deciding the case on merits and
deciding the question of legality of the
recommendation made by the State
Government. In fact they should have left
the matter to the Central Government to
pass an appropriate order in accordance
with law instead of entertaining a
pre-mature writ petition. The State
Government by its recommendation having
forwarded the tabulated chart showing
inter se merit of each applicant, it
was not for the High Court to sit in
: 7 :
appeal to decide who amongst all is more
meritorious and is entitled for
preferential right.
8. It is, thus, laid down by this Court that
the filing of the writ petition against the
recommendation of the State Government to the
Central Government for prior approval under Section
5(1) of the MMDR Act should not be entertained
being premature. The Court held that the matter
should be left to the Central Government to pass an
appropriate order in accordance with law instead of
entertaining premature writ petition.
09. In light of the above legal position, the
impugned order cannot be sustained and it has to
be set-aside. We, accordingly, set-aside the order
dated 15.7.2009, impugned in the present appeal.
The State Government shall now be at liberty to
: 8 :
revive the communication dated 4.10.2007 and send
the same to the Central Government. The Central
Government shall consider the recommendation so
sent by the State Government after hearing the
appellant – M/s. Kabini Minerals Private Limited
and also the respondent No.5 – M/s. Deccan Mining
Syndicate and take a call whether or not to grant
approval as sought for by the State Government.
10. We make it clear that we have not
expressed any opinion on the merits of the
appellant's application for grant of mining lease
over an area of 127.48 hectors in Thimmappanagudi
Range in Sandur Taluk, Bellary District for iron
ore and manganese ore for a period of 20 years.
Our order is confined to revival of the
communication dated 4.10.2007.
: 9 :
11. Civil Appeal is disposed of as above. No
costs.
.......................CJI.
(R.M. LODHA)
........................J.
(KURIAN JOSEPH)
NEW DELHI; ........................J.
AUGUST 26, 2014 (ROHINTON FALI NARIMAN)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8279 OF 2014
[ARISING OUT OF S.L.P. (C) NO. 30547 OF 2009]
M/S. KABINI MINERALS PVT. LTD. ... APPELLANT(s)
Versus
UNION OF INDIA AND OTHERS ... RESPONDENT(s)
O R D E R
We have heard Mr. Dushyant Dave, learned
senior counsel for the appellant and Ms. Kiran
Suri, learned senior counsel for the respondent
No. 5.
2. Leave granted.
3. On 27.9.2007, the Secretary, Commerce &
Industry Department, Government of Karnataka sent a
communication to the Commissioner & Director of
Mines and Geology informing him that the Chief
Minister has ordered grant of mining lease for
iron ores to M/s. Kabini Minerals Pvt. Ltd.
(appellant herein) to an extent of 127.48 hectors
: 2 :
area in Thimmappanagudi Range in Sandur Taluk,
Bellary District. The Commissioner & Director of
Mines and Geology was requested to send the
recommendation for prior approval of the Central
Government in this regard.
4. Thereafter, the Secretary, Commerce &
Industry Department, Government of Karnataka sent a
letter to the Secretary to the Government of India,
Ministry of Mines on 4.10.2007 requesting him to
obtain and communicate the approval of the
Government of India as per Section 5(1) of the
Mines & Minerals (Development and Regulation) Act,
1957 (for short “MMDR Act”) for grant of mining
lease in favour of appellant over an area of 127.48
hectors in Thimmappanagudi Range in Sandur Taluk,
Bellary District for iron ore and manganese ore for
a period of 20 years.
5 The present respondent No.5 – M/s Sunvik
Steels Private Limited Limited filed a writ
petition before the High Court challenging the
communications dated 27.9.2007 and 4.10.2007.
: 3 :
6. The High Court vide its order dated
15.7.2009 quashed the above communications. It is
against this order that the present appeal, by
special leave, has been filed.
7. In Geomin Minerals and Marketing Pvt. Ltd.
vs. State of Orissa and others1, one of the
questions that fell for consideration was whether
the writ petition could be maintained against the
recommendation by the State Government seeking
prior approval of the Central Government under
Section 5(1) of the MMDR Act.
8. This Court considered the above question
in paragraphs 26,27,28, 29,40 & 42 of the report as
follows:
26. Under Section 5 of the MMDR Act, the
State Government cannot grant a
reconnaissance permit, prospective licence
or mining lease to any person unless
previous approval of the Central
Government has been obtained. The
proviso to Section 5(1) expressly
prohibits grant of PL except with
previous approval of the Central
Government as quoted hereunder.
Further,where Section 11(5) is invoked,
there also prior approval of the Central
Government is also required. The proviso
1
(2013)7 SCC 571
: 4 :
to Section 11(5) prescribes that prior
approval of the Central Government
shall be obtained "before passing any
order under the sub-section".
27. In the present case the State
Government has only made recommendations
and has sought approval of the Central
Government under proviso to Section 5(1)
and the proviso to Section 11(5) but no
final decision has been taken. The State
Government can pass final order granting
mining licence only if approval is
granted by the Central Government under
Section 5(1) or Section 11(5) which
reads as follows:
“5:Restrictions on the grant of
prospective licences or mining
lease.-
(1). A State Government shall not
grant a reconnaissance permit,
prospecting licence or mining lease
to any person unless such person—
a) is an Indian national, or a
company as defined in sub-section
(1) of section 3 of the Companies
Act, 1956 (1 of 1956); and
b) satisfies such conditions as may
be prescribed:
Provided that in respect of any
mineral specified in the First
Schedule, no reconnaissance permit,
prospecting licence or mining
lease shall be granted except with
the previous approval of the
Central Government.
* * *
11(5). Notwithstanding anything
contained in sub-section (2),
but subject to the provisions of
: 5 :
sub-section (1), the State
Government may, for any special
reasons to be recorded, grant a
reconnaissance permit, prospecting
licence or a mining lease, as the
case may be, to an applicant whose
application was received later in
preference to an applicant whose
application was received earlier:
Provided that in respect of
minerals specified in the First
Schedule, prior approval of
the Central Government shall be
obtained before passing any order
under this sub-section.”
28. Iron ore is a major mineral
specified in Para C of the First
Schedule. In matters of such major
mineral, even the State Government
itself cannot undertake prospective or
mining operations without having prior
consultation with the Central Government
as per Section 4(3) of the Act, and if
prospecting licence or mining lease is to
be granted to any other person, then
previous approval of the Central
Government is to be obtained under
proviso to Section 5(1). The
consideration of recommendation made by
the Central Government for grant of
prior approval is an exclusive
jurisdiction of the Central Government
under the MMDR Act, 1957 and there is
no good reason for pre-empting the
Central Government from considering the
merits of the recommendation.
29. Until the Central Government has
passed an order either granting or
refusing approval under Section 5(1) and
Section 11(5) of the Act, it would not be
: 6 :
permissible for any person to file a writ
petition under Article 226 of the
Constitution of India and any such
petition if filed would be premature.
In the instant case, the High Court
committed a grave error of law in
proceeding to observe that 'special
reasons' did not exist on invoking
Section 11(5) and that there was no
comparison of merits in the record.
The record has been shown to this Court
and it is apparent that the State
Government has tabulated and evaluated the
inter se merits and has concluded that
POSCO is more meritorious. All the
applicants were given a hearing. In the
circumstances, the High Court's
observations are not justified and in
fact the High Court appears to have
usurped the jurisdiction of the Central
Government in proceeding to make these
remarks. The scrutiny of the merits was
premature and the High Court should
have refrained from entering into the
merits.
XXX XXX XXX
40. The Central Government is required to
go through the relevant facts of each
case to determine whether the
recommendation is to be approved or
not. While deciding the question the
Central Government will keep in mind
the order which was passed by the
Revisional Authority(Central Government)
in the case of Dagara on 2nd May, 2008.
XXX XXX XXX
42. In view of the finding as recorded
above, we are of the view that the High
Court committed a grave error of law in
deciding the case on merits and
deciding the question of legality of the
: 7 :
recommendation made by the State
Government. In fact they should have left
the matter to the Central Government to
pass an appropriate order in accordance
with law instead of entertaining a
pre-mature writ petition. The State
Government by its recommendation having
forwarded the tabulated chart showing
inter se merit of each applicant, it
was not for the High Court to sit in
appeal to decide who amongst all is more
meritorious and is entitled for
preferential right.
9. It is, thus, laid down by this Court that
the filing of the writ petition against the
recommendation of the State Government to the
Central Government for prior approval under Section
5(1) of the MMDR Act should not be entertained
being premature. The Court held that the matter
should be left to the Central Government to pass an
appropriate order in accordance with law instead of
entertaining premature writ petition.
10. In light of the above legal position, the
impugned order cannot be sustained and it has to
: 8 :
be set-aside. We, accordingly, set-aside the order
dated 15.7.2009, impugned in the present appeal.
The State Government shall now be at liberty to
revive the communication dated 4.10.2007 and send
the same to the Central Government. The Central
Government shall consider the recommendation so
sent by the State Government after hearing the
appellant – M/s. Kabini Minerals Private Limited
and also the respondent No.5 – M/s. Sunvik Steels
Private Limited and take a call whether or not to
grant approval as sought for by the State
Government.
11. We make it clear that we have not
expressed any opinion on the merits of the
appellant's application for grant of mining lease
over an area of 127.48 hectors in Thimmappanagudi
Range in Sandur Taluk, Bellary District for iron
ore and manganese ore for a period of 20 years.
: 9 :
Our order is confined to revival of the
communication dated 4.10.2007.
12. Civil Appeal is disposed of as above. No
costs.
.......................CJI.
(R.M. LODHA)
........................J.
(KURIAN JOSEPH)
NEW DELHI; ........................J.
AUGUST 26, 2014 (ROHINTON FALI NARIMAN)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8280 OF 2014
[ARISING OUT OF S.L.P. (C) NO. 30552 OF 2009]
M/S. KABINI MINERALS PVT. LTD. ... APPELLANT(s)
Versus
UNION OF INDIA AND OTHERS ... RESPONDENT(s)
O R D E R
Leave granted.
2. On 27.9.2007, the Secretary, Commerce &
Industry Department, Government of Karnataka sent a
communication to the Commissioner & Director of
Mines and Geology informing him that the Chief
Minister has ordered grant of mining lease for iron
ores to M/s. Kabini Minerals Pvt. Ltd. (appellant
herein) to an extent of 127.48 hectors area in
Thimmappanagudi Range in Sandur Taluk, Bellary
District. The Commissioner & Director of Mines and
Geology was requested to send the recommendation
for prior approval of the Central Government in
this regard.
: 2 :
3. Thereafter, the Secretary, Commerce &
Industry Department, Government of Karnataka sent a
letter to the Secretary to the Government of India,
Ministry of Mines on 4.10.2007 requesting him to
obtain and communicate the approval of the
Government of India as per Section 5(1) of the
Mines & Minerals (Development and Regulation) Act,
1957 (for short “MMDR Act”) for grant of mining
lease in favour of appellant over an area of 127.48
hectors in Thimmappanagudi Range in Sandur Taluk,
Bellary District for iron ore and manganese ore for
a period of 20 years.
4. The present respondent No.5 – M/s Sri
Chamundeshwari Mineral filed a writ petition before
the High Court challenging the communications dated
27.9.2007 and 4.10.2007.
5. The High Court vide its order dated
15.7.2009 quashed the above communications. It is
against this order that the present appeal, by
special leave, has been filed.
: 3 :
6. In Geomin Minerals and Marketing Pvt. Ltd.
vs. State of Orissa and others1, one of the
questions that fell for consideration was whether
the writ petition could be maintained against the
recommendation by the State Government seeking
prior approval of the Central Government under
Section 5(1) of the MMDR Act.
7. This Court considered the above question
in paragraphs 26,27,28, 29,40 & 42 of the report as
follows:
26. Under Section 5 of the MMDR Act, the
State Government cannot grant a
reconnaissance permit, prospective licence
or mining lease to any person unless
previous approval of the Central
Government has been obtained. The
proviso to Section 5(1) expressly
prohibits grant of PL except with
previous approval of the Central
Government as quoted hereunder. Further,
where Section 11(5) is invoked, there
also prior approval of the Central
Government is also required. The proviso
to Section 11(5) prescribes that prior
approval of the Central Government
shall be obtained "before passing any
order under the sub-section".
27. In the present case the State
Government has only made recommendations
and has sought approval of the Central
Government under proviso to Section 5(1)
1 (2013)7 SCC 571
: 4 :
and the proviso to Section 11(5) but no
final decision has been taken. The State
Government can pass final order granting
mining licence only if approval is
granted by the Central Government under
Section 5(1) or Section 11(5) which
reads as follows:
“5:Restrictions on the grant of
prospective licences or mining
lease.-
(1). A State Government shall not
grant a reconnaissance permit,
prospecting licence or mining lease
to any person unless such person—
a) is an Indian national, or a
company as defined in sub-section
(1) of section 3 of the Companies
Act, 1956 (1 of 1956); and
b) satisfies such conditions as may
be prescribed:
Provided that in respect of any
mineral specified in the First
Schedule, no reconnaissance permit,
prospecting licence or mining
lease shall be granted except with
the previous approval of the
Central Government.
* * *
11(5). Notwithstanding anything
contained in sub-section (2),
but subject to the provisions of
sub-section (1), the State
Government may, for any special
reasons to be recorded, grant a
reconnaissance permit, prospecting
licence or a mining lease, as the
case may be, to an applicant whose
application was received later in
preference to an applicant whose
application was received earlier:
: 5 :
Provided that in respect of
minerals specified in the First
Schedule, prior approval of
the Central Government shall be
obtained before passing any order
under this sub-section.”
28. Iron ore is a major mineral
specified in Para C of the First
Schedule. In matters of such major
mineral, even the State Government
itself cannot undertake prospective or
mining operations without having prior
consultation with the Central Government
as per Section 4(3) of the Act, and if
prospecting licence or mining lease is to
be granted to any other person, then
previous approval of the Central
Government is to be obtained under
proviso to Section 5(1). The
consideration of recommendation made by
the Central Government for grant of
prior approval is an exclusive
jurisdiction of the Central Government
under the MMDR Act, 1957 and there is
no good reason for pre-empting the
Central Government from considering the
merits of the recommendation.
29. Until the Central Government has
passed an order either granting or
refusing approval under Section 5(1) and
Section 11(5) of the Act, it would not be
permissible for any person to file a writ
petition under Article 226 of the
Constitution of India and any such
petition if filed would be premature.
In the instant case, the High Court
committed a grave error of law in
proceeding to observe that 'special
reasons' did not exist on invoking
Section 11(5) and that there was no
comparison of merits in the record.
: 6 :
The record has been shown to this Court
and it is apparent that the State
Government has tabulated and evaluated the
inter se merits and has concluded that
POSCO is more meritorious. All the
applicants were given a hearing. In the
circumstances, the High Court's
observations are not justified and in
fact the High Court appears to have
usurped the jurisdiction of the Central
Government in proceeding to make these
remarks. The scrutiny of the merits was
premature and the High Court should
have refrained from entering into the
merits.
XXX XXX XXX
40. The Central Government is required to
go through the relevant facts of each
case to determine whether the
recommendation is to be approved or
not. While deciding the question the
Central Government will keep in mind
the order which was passed by the
Revisional Authority(Central Government)
in the case of Dagara on 2nd May, 2008.
XXX XXX XXX
42. In view of the finding as recorded
above, we are of the view that the High
Court committed a grave error of law in
deciding the case on merits and
deciding the question of legality of the
recommendation made by the State
Government. In fact they should have left
the matter to the Central Government to
pass an appropriate order in accordance
with law instead of entertaining a
pre-mature writ petition. The State
Government by its recommendation having
: 7 :
forwarded the tabulated chart showing
inter se merit of each applicant, it
was not for the High Court to sit in
appeal to decide who amongst all is more
meritorious and is entitled for
preferential right.
8. It is, thus, laid down by this Court that
the filing of the writ petition against the
recommendation of the State Government to the
Central Government for prior approval under Section
5(1) of the MMDR Act should not be entertained
being premature. The Court held that the matter
should be left to the Central Government to pass an
appropriate order in accordance with law instead of
entertaining premature writ petition.
09. In light of the above legal position, the
impugned order cannot be sustained and it has to
be set-aside. We, accordingly, set-aside the order
dated 15.7.2009, impugned in the present appeal.
The State Government shall now be at liberty to
: 8 :
revive the communication dated 4.10.2007 and send
the same to the Central Government. The Central
Government shall consider the recommendation so
sent by the State Government after hearing the
appellant – M/s. Kabini Minerals Private Limited
and also the respondent No.5 – M/s. Sri
Chamundeshwari Mineral and take a call whether or
not to grant approval as sought for by the State
Government.
10. We make it clear that we have not
expressed any opinion on the merits of the
appellant's application for grant of mining lease
over an area of 127.48 hectors in Thimmappanagudi
Range in Sandur Taluk, Bellary District for iron
ore and manganese ore for a period of 20 years.
Our order is confined to revival of the
communication dated 4.10.2007.
: 9 :
11. Civil Appeal is disposed of as above. No
costs.
.......................CJI.
(R.M. LODHA)
........................J.
(KURIAN JOSEPH)
NEW DELHI; ........................J.
AUGUST 26, 2014 (ROHINTON FALI NARIMAN)
ITEM NO.13 COURT NO.1 SECTION IVA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 28164/2009
(Arising out of impugned final judgment and order dated 15/07/2009
in WP No. 6184/2008 passed by the High Court Of Karnataka At
Bangalore)
M/S. KABINI MINERALS P.LTD. Petitioner(s)
VERSUS
M/S. JSW STEEL LIMITED & ORS. Respondent(s)
(with appln. (s) for exemption from filing c/c of the impugned
judgment and permission to file additional documents and office
report)
WITH
SLP(C) No. 30279/2009
(With interim relief and Office Report)
SLP(C) No. 30547/2009
(With interim relief and Office Report)
SLP(C) No. 30552/2009
(With interim relief and Office Report)
Date : 26/08/2014 These petitions were called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE KURIAN JOSEPH
HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN
For Petitioner(s) Mr. Dushyant Dave, Sr. Adv.
Mr. Pallav Shishodia, Sr. Adv.
Mr. A. Venayagam Balan ,Adv.
For Respondent(s)
SLP 28164 R-1 Dr. Abhishek Manu Singhvi, Sr. Adv.
Mr. K.V. Vishwanathan, Sr. Adv.
Mr. Gourav Juneja, Adv.
Mr. Rahul, Adv.
Mr. Sanjeev Kumar, Adv. for
M/s Khaitan & Co.
SLP 30547 R-5 Ms. Kiran Suri, Sr. Adv.
Mr. S.J. Amith, Adv.
Dr. (Mrs.) Vipin Gupta, Adv.
Ms. Anitha Shenoy ,Adv.
: 2 :
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
Civil Appeals are disposed of in terms of signed orders.
(PARDEEP KUMAR) (RENU DIWAN) AR-cum-PS COURT MASTER [four signed orders are placed on the file]