Rajasthan High Court - Jodhpur
Hindustan Zinc Limited vs Union Of India on 5 August, 2022
Bench: Manindra Mohan Shrivastava, Vinod Kumar Bharwani
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 975/2021
Hindustan Zinc Limited, Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V.s. Vishwanathan, Aged About 45 Years.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajasthan, Through Principal Secretary,
Mines And Geology Department, Government Of
Rajasthan, Jaipur.
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan,
Udaipur.
----Respondents
Connected With
D.B. Civil Writ Petition No. 1614/2021
Hindustan Zinc Ltd., Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V. S. Vishwanathan, Aged About 45 Years, R/o Zinc Park,
Moti Magri Scheme, Udaipur.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajasthan, Through Principal Secretary,
Mines And Geology Department, Government Of
Rajasthan, Jaipur
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan,
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Udaipur.
----Respondents
D.B. Civil Writ Petition No. 1644/2021
Hindustan Zinc Ltd., Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V. S. Vishwanathan, Aged About 45 Years, R/o Zinc Park,
Moti Magri Scheme, Udaipur.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajasthan, Through Principal Secretary,
Mines And Geology Department, Government Of
Rajasthan, Jaipur
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan,
Udaipur.
----Respondents
D.B. Civil Writ Petition No. 1721/2021
Hindustan Zinc Ltd., Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur, Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V.s Viswanathan, Aged About 45 Years, Resident Of Zilc
Park, Moti Magri Scheme, Swaroop Sagar, Udaipur.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajasthan, Through Principal Secretary,
Mines And Geology Department, Government Of
Rajasthan, Jaipur.
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Mines And Geology, Government Of Rajasthan, Udaipur.
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----Respondents
D.B. Civil Writ Petition No. 1780/2021
Hindustan Zinc Ltd., Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V.s. Vishwanathan, Aged About 45 Years, R/o Zinc Park,
Moti Magri Swaroop Sagar, Udaipur.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajsthan, Through Principal Secretary, Mines
And Geology Department, Government Of Rajasthan,
Jaipur.
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan,
Udaipur.
----Respondents
D.B. Civil Writ Petition No. 1783/2021
Hindustan Zinc Limited, Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V.s. Vishwanathan, Aged About 45 Years, R/o Zinc Park,
Moti Magri Scheme, Udaipur.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajsthan, Through Principal Secretary, Mines
And Geology Department, Government Of Rajasthan,
Jaipur.
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan,
Udaipur.
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----Respondents
D.B. Civil Writ Petition No. 1801/2021
Hindustan Zinc Limited, Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V.s. Vishwanathan, Aged About 45 Years, R/o Zinc Park,
Moti Magri Scheme, Udaipur.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajsthan, Through Principal Secretary, Mines
And Geology Department, Government Of Rajasthan,
Jaipur.
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan,
Udaipur.
----Respondents
D.B. Civil Writ Petition No. 1929/2021
Hindustan Zinc Limited, Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V.s. Vishwanathan, Aged About 45 Years, R/o Zinc Park,
Moti Magri Scheme, Udaipur.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajsthan, Through Principal Secretary, Mines
And Geology Department, Government Of Rajasthan,
Jaipur.
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan,
Udaipur.
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----Respondents
D.B. Civil Writ Petition No. 1931/2021
Hindustan Zinc Limited, Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V.s. Vishwanathan, Aged About 45 Years, R/o Zinc Park,
Swaroop Sagar, Udaipur.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajsthan, Through Principal Secretary, Mines
And Geology Department, Government Of Rajasthan,
Jaipur.
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan,
Udaipur.
----Respondents
D.B. Civil Writ Petition No. 1933/2021
Hindustan Zinc Limited, Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V.s. Vishwanathan, Aged About 45 Years, R/o Zinc Park,
Moti Magri Scheme, Udaipur.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajsthan, Through Principal Secretary, Mines
And Geology Department, Government Of Rajasthan,
Jaipur.
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan,
Udaipur.
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----Respondents
D.B. Civil Writ Petition No. 1938/2021
Hindustan Zinc Limited, Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V.s. Vishwanathan, Aged About 45 Years, R/o Zinc Park,
Moti Magri Scheme, Udaipur.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajsthan, Through Principal Secretary, Mines
And Geology Department, Government Of Rajasthan,
Jaipur.
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan,
Udaipur.
----Respondents
D.B. Civil Writ Petition No. 1948/2021
Hindustan Zinc Ltd., Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V.s. Vishwanathan, Aged About 45 Years, R/o Zinc Park,
Moti Magri Scheme, Udaipur.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajsthan, Through Principal Secretary, Mines
And Geology Department, Government Of Rajasthan,
Jaipur.
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan,
Udaipur.
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----Respondents
D.B. Civil Writ Petition No. 1992/2021
Hindustan Zinc Ltd., Having Its Registered Office At Yashad
Bahwan, Swaroop Sagar, Udaipur, Through Its Authorized
Signatory And Head Corporate Services, V.jayaraman S/o V.s.
Viswanathan, Aged About 45 Years, Zinc Park, Moti Magri
Scheme, Udaipur.
----Petitioner
Versus
1. Union Of India, Through The Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi
2. The State Of Rajasthan, Through Principal Secretary,
Mines And Geology Department, Government Of
Rajasthan, Jaipur
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan, Udaipur
----Respondents
D.B. Civil Writ Petition No. 2094/2021
Hindustan Zinc Limited, Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V.s. Vishwanathan, Aged About 45 Years, Resident Of Zinc
Park, Moti Magri Scheme, Udaipur.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajsthan, Through Principal Secretary, Mines
And Geology Department, Government Of Rajasthan,
Jaipur.
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan,
Udaipur.
----Respondents
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D.B. Civil Writ Petition No. 2098/2021
Hindustan Zinc Limited, Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V.s. Vishwanathan, Aged About 45 Years, Resident Of Zinc
Park, Moti Magri Scheme, Udaipur.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajsthan, Through Principal Secretary, Mines
And Geology Department, Government Of Rajasthan,
Jaipur.
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan,
Udaipur.
----Respondents
D.B. Civil Writ Petition No. 2102/2021
Hindustan Zinc Limited, Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V.s. Vishwanathan, Aged About 45 Years, R/o Zinc Park,
Moti Magri Scheme, Udaipur.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajsthan, Through Principal Secretary, Mines
And Geology Department, Government Of Rajasthan,
Jaipur.
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan,
Udaipur.
----Respondents
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D.B. Civil Writ Petition No. 2966/2021
Hindustan Zinc Limited, Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur, Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V.s. Viswanathan, Aged About 45 Years, Resident Of Yashad
Bhawan, Swaroop Sagar, Udaipur.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajasthan, Through Principal Secretary,
Mines And Geology Department, Government Of
Rajasthan, Jaipur.
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan,
Udaipur.
----Respondents
D.B. Civil Writ Petition No. 4905/2021
Hindustan Zinc Limited, Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur, Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V.s Viswanathan, Aged About 45 Years, Resident Of Zinc
Park, Moti Magri Scheme, Udaipur.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajasthan, Through Principal Secretary,
Mines And Geology Department, Government Of
Rajasthan, Jaipur.
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan,
Udaipur.
----Respondents
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D.B. Civil Writ Petition No. 4907/2021
Hindustan Zinc Limited, Having Its Registered Office At Yashad
Bhawan, Swaroop Sagar, Udaipur, Through Its Authorized
Signatory And Head Corporate Services, Shri V Jayaraman S/o
Shri V.s Viswanathan, Aged About 45 Years, Resident Of Zinc
Park, Moti Magri Scheme, Udaipur.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Mines,
Government Of India, Shastri Bhawan, New Delhi.
2. The State Of Rajasthan, Through Principal Secretary,
Mines And Geology Department, Government Of
Rajasthan, Jaipur.
3. The Director, Directorate Of Mines And Geology,
Government Of Rajasthan, Jaipur.
4. The Superintending Mining Engineer (Main Ii), Directorate
Of Mines And Geology, Government Of Rajasthan,
Udaipur.
----Respondents
For Petitioner(s) : Mr. Gopal Jain, Sr. Advocate through
V.C. assisted by
Mr. U.N. Tiwari
Mr. Akhilesh Rajpurohit
Mr. Punit Singhvi
For Respondent(s) : Mr. Sandeep Shah, AAG assisted by
Ms. Akshiti Singhvi
Mr. RD Rastogi, ASG
Mr. B.P. Bohra
Mr. Shashank Aggarwal
HON'BLE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI
Order 05/08/2022 In all these petitions, common question of law and facts are involved and therefore, they are being heard together and decided by this common order. For convenience, the facts of the lead case (Downloaded on 26/12/2022 at 09:58:25 AM) (11 of 18) [CW-975/2021] being D.B. Civil Writ Petition No. 975/2021 are taken for consideration.
Application for dismissal of the writ petition as also for vacating the stay has been filed by respondents mainly on the ground that in view of subsequent developments, the issues raised in these matters are now limited.
Learned Additional Advocate General would submit that this Court entertained the writ petition though it was only against the show cause notice as constitutional validity of Rule 24 of the Minerals (other than atomic and hydro carbon energy minerals) Concession Rules, 2016 ('Rules of 2016' for short) was assailed. He would submit that during the pendency of the petition, Rule 24 itself has now been deleted. Therefore, now what remains is the challenge to the show cause notice dated 10.12.2020 issued by respondent No.4. He would further submit that the petitioner, instead of contesting the matter before the concerned authority and without filing any revision petition, a statutory remedy provided under the MMDR Act, 1957, filed this writ petition under the garb of challenging the validity of Rule only to avoid replying to the show cause notice. He would further submit that in the matter of dispute between the parties, in so far as mining lease is concerned, notice was issued on 25.02.2020 on the similar ground relating to transfer of ownership, one of the grounds stated in the impugned show cause notice in the present case, the petitioner filed revision petition before the tribunal. Therefore, in the changed circumstances, when the issue of validity of Rule no longer survives, the petitioner may be relegated to the channel of remedy provided under the law.
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(12 of 18) [CW-975/2021] The aspect of transfer of ownership has already been raised by the petitioner before the revisional authority where the matter is pending consideration.
Learned Additional Solicitor General would also submit that now the controversy in the case is only with regard to the show cause notice and relying upon the Supreme Court decision in the case of Commissioner Of Central Excise, Haldia Vs. Krishna Wax Private Limited [(2020) 12 SCC 572], he would submit that it would no longer be appropriate for this Court to entertain petition only against the show cause notice and the writ petitioner must raise all the objections before the authorities who had issued the show cause notice and if at all aggrieved, invoke alternative remedy of filing revision petition before the revisional authority.
Learned counsel for the respondents would jointly submit that the challenge to the show cause notice is not based on any ground relating to lack of jurisdiction of the authority who issued notice nor it can be said to be a case where the authority has prejudged the issue or acted with malice so as to warrant interference. The last submission of learned AAG is that in any case, in view of MMDR Amendment Act, 2021 inserting new proviso, all the applications and proceedings relating to prospecting license lapsed and therefore this writ petition no longer survives for consideration.
Replying to arguments for dismissal of the writ petition of the respondents, learned counsel for the petitioner would submit that even though after amendment and deletion of Rule 24 of the Rules of 2016, relief in that regard no longer survives for consideration, there are other substantial issues particularly the important legal issue which would require consideration of the writ Court as to (Downloaded on 26/12/2022 at 09:58:25 AM) (13 of 18) [CW-975/2021] whether merely on account of transfer of share it could be said to be a case of change of ownership of the company. In his submission, even with respect to the amalgamation, promoter company remains the same as merger and amalgamation are merely internal reconstruction affairs, therefore, cannot be regarded as transfer. Placing reliance upon Supreme Court decisions in Bacha F. Guzdar v. CIT, AIR 1955 SC 74 and Bharat Hari Singhania v. CWT, 1994 Supp (3) SCC 46, he would further submit that communication dated 10.12.2020 cannot be termed as a show cause notice because the text and tenor of that communication clearly shows that the respondents had already taken a view and prejudged the issue and the show cause notice is only a mere formality. He would further submit that even though the petitioner, in matters relating to dispute concerning mining lease, has taken the issue of alleged transfer of ownership to the revisional authority, that does not preclude him from invoking the writ jurisdiction in the present case as this Court is not bound by order that may be passed by statutory tribunal.
It is also submitted that the argument that the application for grant of prospecting license and connected proceedings attained their natural demise in view of MMDR amendment Act, 2021 by way of insertion of a new proviso, cannot be raised in these petitions because separate petitions have been filed challenging the validity. An interim protection has been granted on 10.11.2021 in batch of petitions including one filed by the petitioner also.
The petitioner in these petitions have challenged constitutional validity of Rule 24 of Rules of 2016 as it existed and in force on the date when the writ petitions were filed with the (Downloaded on 26/12/2022 at 09:58:25 AM) (14 of 18) [CW-975/2021] cause of action that vide order dated 10.12.2020 (Annx.12) application for grant of prospecting license was rejected on two grounds stated in the said communication. While according to the petitioner, the communication dated 10.12.2020 is an order, according to the respondents it is only a show cause notice issued under Sub-rule(7) of Rule 5 of the Rules of 2016. One of the grounds stated in the notice is regarding change of transfer of ownership as a result of disinvestment and merger of M/s Hindustan Zinc Limited with M/s Sterlite Opportunities and Ventures Limited followed by merger of M/s Sterlite opportunities and Ventures Limited with M/s Sterlite Industries India Limited and further proceedings of merger in M/s Sesa Goa Limited as also change of the name as Ms Vedanta Limited.
The other issue is with regard to limitation of the area for which prospecting license could be granted in the light of provision contained in Sub-section 1(a) of Section 6 of the MMDR Act, 1957. After having taken a prima facie view in the matter of consideration of application for prospecting license, opportunity of hearing is afforded to the petitioner as provided under Sub-Rule (7) of Rule 5 of the Rules of 2016. That Rule itself has now been omitted. Despite omission of the Sub-Rule (7) of Rule 5 of the Rules of 2016, the nature of communication dated 10.12.2020 can only be said to be show cause and not a final order. The argument that the communication dated 10.12.2020 prejudges the issue cannot be accepted. In fact, the respondents have divulged in the show cause notice why they contemplate to reject the application for prospecting license. The reason so stated in the show cause notice are only intended to give the petitioner an opportunity to (Downloaded on 26/12/2022 at 09:58:25 AM) (15 of 18) [CW-975/2021] show cause against the proposed action of rejection of prospecting license.
It is no longer a disputed position between the parties that as far as challenge to the validity of Rule 24 of Rule of 2016 is concerned, that does not survive for consideration because the Rule itself has been deleted. Therefore, what principally remains to be considered in the present case is the validity of the show cause notice dated 10.12.2020. Clarification dated 02.01.2018 relates to mining leases.
One of the arguments of learned counsel for the respondents that the petition no longer survives for consideration in view of amendment in the MMDR Act vide MMRD Amendment Act, 2021, inserting proviso in Section 10A of the principal Act, in sub-section (2)-(i) in clause (b), cannot be made a basis to dismiss these petitions because admittedly the validity is under challenge in separately constituted petition filed by the petitioner in D.B. Civil Writ Petition No. 10253/2021 wherein interim protection has been granted vide common order dated 10.11.2021 passed by the Division Bench of this Court in batch of petitions including the petition of the petitioner Hindustan Zinc Limited.
It is also worthwhile to mention here that when a similar issue of alleged transfer of ownership as a result of disinvestment followed by merger arose in view of notice dated 25.02.2020 (Annx.7), the petitioner took recourse to the statutory remedy available to it under Section 30 of the MMDR Act, 1957 by filing revision application, details of which have been given in paragraph 14 of the counter affidavit filed on behalf of the respondent No. 1.
Therefore, at this stage, we find that what remains for consideration before this Court is the validity of the show cause (Downloaded on 26/12/2022 at 09:58:25 AM) (16 of 18) [CW-975/2021] notice dated 10.12.2020 issued to the petitioner in these respective petitions without there being any challenge to constitutional validity of any of the provisions of law. Furthermore, we also find that the challenge to the show cause notice is not on the ground of lack of jurisdiction nor it can be said to be a case where the respondents have prejudged the issue. There is no allegation of malafides. We are not inclined to accept the submission of learned counsel for the petitioner in these petitions that communication dated 10.12.2020 is an order and not a show cause notice because the communication clearly requires the petitioner to show cause against the proposed action within a stipulated period. In the case of Union of India and Anr. Versus Kunisetty Satyanarayana reported in 2006 (12) SCC 28, it was held as below:
"14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge- sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."(Downloaded on 26/12/2022 at 09:58:25 AM)
(17 of 18) [CW-975/2021] In one of the recent decisions in the case of Commissioner of Central Excise, Haldia Vs. Krishna Wax Private Limited reported in (2020) 12 SCC 572, Hon'ble Supreme Court reiterated the well settled principles limiting the scope of interference under Article 226 of the Constitution of India in the matter of challenge to show cause notice as below:
"13. It must be noted that while issuing a show-cause notice under Section 11-A of the Act, what is entertained by the Department is only a prima facie view, on the basis of which the show-cause notice is issued. The determination comes only after a response or representation is preferred by the person to whom the show-cause notice is addressed. As a part of his response, the person concerned may present his view point on all possible issues and only thereafter the determination or decision is arrived at, the matter was carried in appeal against the said internal order. The appellant was therefore, justified in submitting that the appeal itself was premature.
14. It has been laid down by this Court that the excise law is a complete code in itself and it would normally not be appropriate for a writ court to entertain a petition under Article 226 of the Constitution and that the person concerned must first raise all the objections before the authority who had issued a show-cause notice and the redressal in terms of the existing provisions of the law could be taken resort to if an adverse order was passed against such person. For example in Union of India v. Guwahati Carbon Ltd., it was concluded; "The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution", while in Malladi Drugs & Pharma Ltd. v. Union of India, it was observed:
"... The High Court, has, by the impugned judgment held that the appellant should first raise all the objections before the Authority who have issued the show-cause notice and in case any adverse order is passed against the appellant, then liberty has been granted to approach the High Court...
... in our view, the High Court was absolutely right in dismissing the writ petition against a mere show-cause notice."
15. It is thus well settled that writ petition should normally not be entertained against mere issuance of (Downloaded on 26/12/2022 at 09:58:25 AM) (18 of 18) [CW-975/2021] show-cause notice. In the present case no show-cause notice was even issued when the High Court had initially entertained the petition and directed the Department to prima facie consider whether there was material to proceed with the matter."
In view of the above considerations, we are inclined to hold that at this stage, in view of subsequent events, particularly when challenge to the validity of Rule 24 of Rules of 2016 no longer survives for consideration, all the petitions are required to be dismissed because the petitioners have alternative remedy, in case respondents are not satisfied with the reply that may be submitted by the petitioners pursuant to the show cause notice, by filing revision petition under Section 30 of the MMDR Act, 1957.
All the petitions are accordingly dismissed. However, considering that the show cause notice requires the petitioners to file reply and show cause against proposed action, we allow the petitioners to file the reply to show cause notice, if not already filed, within a period of 60 days from today.
We may hasten to add that we have not commented upon the merits of the case. The respondents shall decide the matter after receipt of the reply on its own merits on both the grounds which have been mentioned in the show cause notice after due application of mind to the reply submitted by the petitioners. If the petitioners' grievance is not redressed, it goes without saying that remedy of filing revision under Section 30 of the MMDR Act would be available to the petitioners.
No order as to costs.
(VINOD KUMAR BHARWANI),J (MANINDRA MOHAN SHRIVASTAVA), ACJ 17to35-Jayesh/-...
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