Madhya Pradesh High Court
Sunil Kumar Jain vs Union Of India Judgement Given By: ... on 30 October, 2013
Author: U.C. Maheshwari
Bench: U.C. Maheshwari
1
W.P. No. 4929/2011
HIGH COURT OF MADHYA PRADESH ; JABALPUR
W.P. No. 4929/2011
Sunil Kumar Jain
Vs.
Union of India and another.
For the petitioner : Shri Sanjay K. Agarwal, Advocate.
For the Respondent No.1 : Shri Vikram Singh, Advocate.
For the Respondent No.2 : Shri Sanjay Dwivedi, Govt.Advocate.
ORDER
(30 /10 /2013 ) U.C. Maheshwari,J.
The petitioner has filed this petition under Article 226 of the Constitution of India for issuing the appropriate writ for the following reliefs :-
(a) Hon'ble Court be pleased to issue a writ in the nature of certiorari quashing the impugned order dated 8/6/10 passed by the respondent No.1 as arbitrary, illegal and void.
(b) Hon'ble Court be further pleased to direct the Central Government to grant approval as required under the proviso to section 5(i) of the MMDR Act 1957 for grant of prospecting licence to the petitioner over an area of 27.761 hectares determining part of Khasra No.986/1 situated in Village Maddevra, District Chhatarpur (MP).
(c ) Hon'ble Court be further pleased to direct the respondent No.2 to grant prospecting licence to the petitioner as per order dated 19.12.2007.
(d) Any other suitable relief deemed fit in the facts and circumstances of the case may also kindly be granted together with the cost of this petition.
2. The facts of the case in brief are that petitioner submitted an application dated 22.1.07 for grant of prospecting licence for iron ore over 2 W.P. No. 4929/2011 an area of 27.761 hectares of land bearing Khasra No.986/1 situated in village Maddevra, District Chhatarpur. Besides the application of the petitioner, some other applications were also received for grant of prospecting licence over the said area. The same were considered by the respondent No.2/State in accordance with the provisions of section 11 of the Mines and Minerals (Development and Regulation) Act, 1958 (in short the `MMDR Act'). On such consideration, on the basis of information supplied by the petitioner, the respondent No.2/State decided to grant the prospecting licence to the petitioner. Since the petitioner's application was not first in point of time, therefore, after recording the detail reasons, the aforesaid decision for grant of prospecting licence was taken in favor of the petitioner. The iron ore, being the mineral specified in first schedule to the Act, therefore, by virtue of proviso to sub section (1) of Section 5 of the MMDR Act, the aforesaid decision for grant of prospecting licence to the petitioner was sent, along with memo dated 19.12.07 (Annex.P/1) to the Central Government for approval. Being dissatisfied with the aforesaid decision of the State Government dated 19.12.07, one of the unsuccessful applicant M/s Tech Mak Ores and Minerals filed the revision under section 30 of the MMDR Act read with Rule 55 of the Mineral Concession Rules (in short `the MCR Rules') before the revisional authority of the Central Government to challenge such order. Such revision was registered as R.A No.16/16/2008-RC-II. In pendency of such revision for adjudication, the Central Government vide letter dated 29.5.08 (Annex.P/2), returned the said proposal to respondent No.2/State with a direction to reconsider the matter and send the revised proposal specifying clearly as to why the petitioner is being given preference over the earlier applications with a further direction to submit the comparative merits of the petitioner over the earlier applicants and the reasons for preferring such later applicant. In compliance of such direction again the matter was considered by respondent No.2/State and the fresh recommendation dated 22.7.08 (Anenx.P/3) in favor of the petitioner along with the comparative merit of the applicants was sent to the Central Govt. for approval. Such subsequent proposal was again returned by the 3 W.P. No. 4929/2011 Central Govt. vide letter dated 4.12.08 (Annex.P/4) to the State Govt. with a direction to furnish the comparative table of the applicants and reasons for preferring the later applicant/ petitioner. In compliance of such subsequent direction, again the matter was considered by the respondent No.2/State and the proposal dated 24/7/09 (Annex.P/5) for grant of prospecting licence in favor of the petitioner along with the comparative table of all the applicants and the reasons for giving preference to the petitioner over the earlier applicants was sent to the Central Govt.
3. While the aforesaid last proposal for grant of approval/ sanction under section 5(1) of the MMDR Act was pending for consideration before the Central Government, the revisional authority of the Central Govt. decided and dismissed the aforesaid revision petition filed by M/S Tech Mak Ores and Minerals against the initial decision dated 19.12.07 (Annex.P/1) vide order dated 15.3.10 (Annex.P/6) and thereby the decision of the State Govt. 19.12.07 (Annex.P/1) was affirmed. Subsequent to affirming the initial decision of the State Govt. for grant of prospecting licence in favor of the petitioner in the aforesaid revision petition by the revisional authority of the Central Govt., the appropriate authority of the Central Govt. is not empowered to decline to grant approval to the proposal of the State , inspite it, the Central Govt. vide letter dated 8.6.10 (Annex.P/7), returned the last proposal dated 24.7.09 (Anenx.P/5) to the State Government with a direction to re-examine it with reference to the guidelines issued by the Central Govt. vide circular dated 9.2.10 by giving "special reasons". Being dissatisfied by the order dated 8.6.10 (Annex.P/7) returning the proposal dated 24.7.09 for reconsideration in the light of guidelines dated 9.2.10, the petitioner has filed this petition challenging the order dated 8.6.10 (Annex.P/7) on the ground that while considering the grant of prior approval under section 5(1) of the MMDR Act, the Central Govt. cannot examine the propriety of the special reasons recorded by the State Government under section 11(5) of the MMDR Act for preferring later applicants over prior applicants. The Central Govt. is only required to grant 4 W.P. No. 4929/2011 prior approval if it is found that all the procedure requirements have been complied with by the State Govt. In addition to it, the order is also challenged on the ground that the Central Govt. could not return the proposal to reconsider and re-examine the matter on the basis of the guidelines issued on 9.2.10 because the initial decision in favor of the petitioner for grant of prospecting licence was taken on dated 19.12.07 (Annex.P/1) and on such date, such guidelines was neither prepared nor enforced. The guidelines dated 9.2.10 has not been enforced with retrospective effect. Such order dated 8.6.10 (Annex.P/7) is also challenged by the petitioner stating the same to be arbitrary and illegal because the same has been passed contrary to the quasi judicial order of the revisional authority dated 15.3.10 (Annex.P/6) and contrary to such order of the revisional authority, the approving authority could not return such proposal to re-examine and re-consider the matter in the light of the aforesaid guidelines dated 9.2.10 which has come into force with prospective effect.
4. In counter affidavit of C.K. Rawat, an under Secretary/ return of the respondent No.1 it is stated that the State Governments are the owners of the minerals located within their respective boundaries and pursuant to it, they grant the minerals concessions Reconnaissance Permit (RP), Prosecting Licence (PL) and Mining Lease (ML) under the provisions of the MMDR Act. Prior approval of the Central Govt. is required under section 5(1) of the Act for grant of RP, PL and ML in respect of Atomic and Metallic Minerals specified in Part "B" and "C" of the First Schedule to the Act including the iron ore. After the prior approval of the Central Govt., mining lease etc are executed by the State Government with the mining agencies after they obtain all statutory clearances and approvals. In addition, it is stated that in the context of its responsibility the Ministry of Mines is bound to ensure that the provisions of MMDR Act and the MCR Rules are complied with in letter and spirit by all the stakeholders including the State Government and applicant companies. The ministry has from time to time issued guidelines on various provisions of the MMDR Act and the 5 W.P. No. 4929/2011 MCR Rules. These guidelines are essentially meant to clarify and explain the provisions of the Act and the MCR, in order to bring abut consistency in the minerals concessions regime to the extent possible in the light of the National Mineral Policy adopted by the Government of India and laid in Parliament in 2008. It is also submitted that Ministry of Mines is conscious of the need to have a transparent and efficient system for processing the minerals concession cases and, pursuant to it, the National Mineral Policy 2008 was made and in compliance of such policy several steps were taken. In continuation of the same, the Central Coordination-cum-Empowered committee has been constituted in the Ministry of Mines on 4.3.09 to monitor and minimize delays in grant of approvals for mineral concessions. The Ministry has also framed a Model State Mineral Policy and circulated to it all State Governments on 12.10.09. Simultaneously, has also issued the guidelines on various aspects of mineral concession regime. In further averments it is stated that the guideline dated 24.6.09 have been framed after due consultations with all the mineral rich State Governments. The draft guidelines were circulated on 25.11.08 to the State Governments for comments/ suggestions. In this regard a meeting was held on 14.2.09 with Secretaries, Mining and Geology of the State Governments to consider the suggestions of the State Governments. The basic rationale for formulating such guidelines is to ensure that concession cases are decided in a transparent and objective basis in a uniform manner. After issuing the guidelines on 24.6.09, the Ministry has also issued guidelines on 9.2.10 on "special reasons" for invoking section 11(5) in recommending a later applicant.
5. In the aforesaid background it is stated that vide para-8.14 of the guidelines dated 24.6.09 the State Govt. were requested to frame their own Policy with regard to `transparency' and `selection criteria' in the caseof multiple applicants and to adopt and apply a uniform and publicly stated policy on `special reasons' . The special reasons could be those which form part of the State Mnieral Policy or other duly notified policy document so 6 W.P. No. 4929/2011 that the `special reasons' are objectively founded and are not perceived as being formulated to suit requirement on a case by case basis. The special reasons should be in the public interest and for economic development and must be capable of withstanding legal scrutiny. According to para 8.14 of the guidelines dated 24.6.09, all the State Governments are to frame their own Policy with regard to `transparency' and `selection criteria' in the case of multiple applicants and the Government of Madhya Pradesh has formulated State Mineral Policy, 2010 wherein the State Government has pronounced the State-specific `special reasons' while recommending the proposals of later applicant under section 11(5) of the MMDR Act. In the aforesaid background it is also stated that in the instant case the answering respondent i.e the Ministry of Mines received a proposal recommended by the Govt of Madhya Pradesh vide letter dated 24.7.09 under section 11(5) of the Act for grant of prospecting licence (PL) for iron ore over an area 12.610 hectare in village Maddevra district Chhatarpur, Madhya Pradesh in favor of Shri Sunil Kumar Jain. Earlier to this proposal, the Ministry of Mines had received the proposal in favor of the petitioner herein under section 11(5) of the Act on 19.12.07 and 22.7.08 which were returned to the State Govt on 29.5.08 and 4.12.08 respectively with the observation that specific special reasons need to be invoked to justify the grant. The State Govt was also requested to furnish specific reasons why the earlier applicants were not suitable. It is also submitted that the area in question is a non-notified area and the recommended applicant was the later applicant, therefore, the provisions of section 11(5) of the Act were to be invoked whereas in the said proposal, the State Govt. was invoking both sections 11(3) and 11(5) of the MMDR Act. Section 11(3) is for a notified area whereas the area in question was anon-notified area and hence section 11(3) of the Act cannot be invoked as per the provisions. Since the proposal was for a non-notified area, the State Govt. had to furnish `special reasons' in recommending the later applicant. Therefore, while returning the proposal on 29.5.08 and 4.12.08, the State Govt. was requested to furnish specific special reasons that need to be invoked to justify the grant of PL under 7 W.P. No. 4929/2011 section 11(5) of the Act and also to furnish specific reasons why the earlier applicants were not suitable. Subsequent to receiving the proposal dated 24.7.09 from the State Govt., such proposal was found in favor of the petitioner in routine manner since the justification furnish by the State Govt. was not covered by the policy framed by the Central Govt on " special reasons", the Ministry of Mines had returned the proposal vide letter dated 8.6.10 with a request to re-examine and re-submit the proposal with reference to the said guidelines. The Ministry of Mines has not received any reconsidered proposal in favor of the petitioner herein so far. Inter alia, in consonance of the aforesaid averments, the parawise reply of the petition has also been filed in the return and prayer for dismissal of the petition is made.
6. On behalf of respondent No.2/State Govt. in its return, it is stated that action of the respondent No.1 is under challenge in this petition at the instance of the petitioner and, therefore, it is for the respondent No.1 to substantiate and justify the action. So far as respondent No.2 is concerned it has nothing to do in the matter except compliance of the direction passed by this court in the present petition. It is further stated that if this court allows the petition and action of respondent No.1 is set aside then there is no need to proceed further for the State Govt. in pursuant to the direction of the Central Govt to re-examine the matter in the light of guidelines dated 9.2.10. With these submissions, the prayer for dismissal of the petition is made.
7. Shri Sanjay K. Agarwal, counsel for the petitioner after taking me through the pleadings of the parties and the annexed documents, argued that the impugned order dated 8.6.10 (Annex.P/7) is not sustainable in the existing legal position because firstly while considering the decision of the State Govt for grant of prospecting licence in favor of the petitioner under section 5(1) of the MMDR Act for grant of approval the Central Government did not have any authority to return the proposal to the State Govt for reconsideration unless some apparent procedural error is found and 8 W.P. No. 4929/2011 as per his submission no such procedural error was available in the matter for returning the proposal. He further argued that in any case the Central Govt. did not have any authority to return the main and initial proposal of the state Govt. dated 19.12.07 vide letter dated 8.6.10 (Anenx.P/7) with a direction to re-examine the same with reference to the guidelines dated 9.2.10 circulated to the State Governments on `special reasons' and if required submit the report with justification because as per guidelines itself and the constitutional provision, such guidelines has come into force with prospective effect and not with retrospective effect. So, in view of the decision of the State Govt. dated 19.12.07, such guidelines could not be applied to the case of the petitioner and, in such premises, the approach of the Ministry of Mines and Minerals of the Central Govt. in returning the proposal, is not sustainable. He further said that it is apparent fact that the State Government has taken the decision in accordance with the provision of section 11(3) and (5) of the MMDR Act and sending the matter for grant of approval under section 5(1) of the MMDR Act to the Central Govt. and, in such premises, the decision was taken by the State Govt. under its vested authority and in accordance with the procedure prescribed under the law and on challenging such order by one private applicant, namely, M/s Tech Mak Ore and Minerals by way of revision under section 30 of the MMDR Act before the Central Govt, then on consideration vide order dated 15.3.10 by affirming the order of the State Govt, such revision was dismissed and thereby in quasi judicial side the decision of the State Govt was affirmed and, in such premises, contrary to the order of the quasi judicial authority, the Central Govt. Ministry of Mines did not have any authority to return the proposal of the State Govt. for reconsideration and re-examination in the light of the aforesaid guidelines or otherwise. With these submissions, he prayed to set aside the impugned order dated 8.6.10 (Annex.P/7) and remand the matter with appropriate direction to the Central Govt. for grant of approval on the proposal made by the State Govt. dated 19.12.2007 in favor of the petitioner by admitting and allowing this petition.
8. Shri Vikram Singh, learned standing counsel for Union of India, by 9 W.P. No. 4929/2011 justifying the impugned order dated 8.6.10 said that the same being based on proper appreciation of the available factual matrix and the existing legal position and the guidelines which is based on the provision of section 11(5) of the MMDR Act, does not require any interference at this stage. In his further arguments, he referred all the aforesaid objections which have been taken on behalf of respondent No.1 in the affidavit/return and prayed for dismissal of this petition.
9. Shri Sanjay Dwivedi, learned GA for respondent No.2/State by justifying the decision of the State Govt. dated 19.12.07 (Annex.P/1) for grant of prospecting licence said that the State shall comply the direction whichever is passed by this court in the present petition and prayed to decide the petition accordingly.
10. Having heard the counsel at length, keeping in view the arguments advanced, I have carefully gone through the pleadings of the parties so also the documents annexed and placed by the parties and the impugned order Anenx.P/7. It is undisputed fact that besides the petitioner there were some other applicants also who filed their respective applications for grant of prospecting licence with respect of the aforesaid land for iron ore and the petitioner was not the prior applicant but on consideration, the State Govt. has decided to grant the prospecting licence of the aforesaid land in favor of the petitioner and the application of the other applicants were rejected and the iron ore being the mineral of the first schedule, the decision dated 19.12.07 was sent to the Central Govt for approval under section 5(1) of the Act. On consideration, the Central Govt. Ministry of Mines, firstly return the proposals vide letter dated 29.5.08 Annex.P/2 to the State Govt. with a direction to send the revised proposal specifying clearly as to why the petitioner is being given preference over the earlier applications. The State Govt was also directed to submit the comparative merits of the applicants and the reasons for preferring such later applicant. In compliance of such direction again the fresh recommendation was sent to the Central Govt. by 10 W.P. No. 4929/2011 the State Govt. vide dated 22.7.08 (Annex.P/3). On consideration, the same was again returned by the Central Govt vide letter dated 4.12.08 (Annex.P/4) with a direction to furnish the comparative merits of the applicants and the reasons for preferring such later applicant. In compliance of such direction with comparative chart and requisite explanation was sent by the State Govt to the Central Govt vide dated 24.7.09 (Annex.P/5) and, again on consideration by the Central Govt, vide letter dated 8.6.10 (Annex.P/7), the proposal was again sent back with a direction to re- examine it with reference to the guidelines on special reasons issued by the Central Govt. on 9.2.10. The same is under challenged in this petition.
11. It is also undisputed and apparent fact on record that the initial decision dated 19.12.07 (Annex.P/1) of the State Govt for grant of prospecting licence in favor of the petitioner with respect of the aforesaid land was challenged by other unsuccessful applicant M/s Tech Mak ore and Minerals by way of revision under section 30 of the MMDR Act and Rule 54 of the MCR Rules before the revisional authority of the Central Govt and, on consideration with speaking order dated 15.3.10 (Annex.P/6) by affirming the decision of the State Govt. dated 19.12.07 (Annex.P/1), such revision was dismissed. Accordingly, the decision of the State Govt. was affirmed by the tribunal, a quasi judicial authority.
12. In the aforesaid circumstances, I am of the considered view that when the decision of the State Government dated 19.12.07 (Annex.P/1) was affirmed with speaking order by the revisional authority of the Central Govt. So, in view of such quasi judicial order, the Ministry of Mines and Minerals did not have any authority to reexamine the matter on the question of "sufficient reasons" stated in section 11(3) and (5) of the MMDR Act and on such count, the Central Govt. could not have return the proposal to re- examine and re-consider the matter on the ground of "sufficient reasons" to grant the PL to the petitioner under section 11(5) of the MMDR Act the later applicant. In view of the settled proposition, after affirming the 11 W.P. No. 4929/2011 decision of the State Govt. by the quasi judicial order, the Central Govt. could not direct the State Govt to re-examine and re-consider the matter in the light of the guidelines dated 9.2.10 as stated in the impugned order dated 8.6.10 (Annex.P/7). I am of the considered view that if any order is passed by any Tribunal under the revisional jurisdiction then such order being quasi judicial order is binding against the executive and administrative authorities and such quasi judicial order could not be over-ride on the basis of any departmental circular or administrative order and in such premises, in the case at hand, the guidelines dated 9.2.10, could not be deemed to have the effect of law. I would like to mention here that inspite making queries from the counsel of Union of India whether such guidelines or circular dated 9.2.10, has been issued under the authority of any statutory provisions and the procedure then he could not satisfy me in this regard with any statutory provisions. As such he could not explain any circumstance in this regard before the court. He only said that the guidelines has been prepared and promulgated for keeping transparency and to apply the provisions of section 11(5) of the MMDR Act.
13. In the matter of Daryanamal Vs. State of M.P. and others -2001 RN-201, the division Bench of this Court has held as under :-
"Executive instructions : mere executive instructions or administrative orders cannot nullify the statutory provision prescribing limitation.... placitum."
Apart the aforesaid in the matter of Ratan Kumar Tandon and others Vs. State of U.P.-(1997) 2 SCC- 161, the Apex Court has held as under :-
"Administrative Law- Subordinate legislation- Administrative instructions- Do not have any overriding effect on operation of statutory provisions or the law of the land as laid down by the Supreme court- Constitution of India Arts.73,162 and 141... Placitum,
14. In the aforesaid cited cases it has been held that the executive 12 W.P. No. 4929/2011 instructions or administrative orders cannot nullify the prescribed statutory provision. So, in such premises, in view of the quasi judicial order passed by the revisional authority under the vested jurisdiction, affirming the decision of the State of MP granting prospecting licence in favor of the petitioner, the central Govt. did not have any authority to return the proposal to the State Govt to reconsider and examine the same in the light of the guidelines dated 9.2.10. As such, on the basis of such guidelines, the finding of the quasi judicial order of revisional court on section 11(5) of MMDR Act could not be nullified. So, in such premises also, the impugned order dated 8.6.10 (Annex.P/7) returning the proposal to the State is not sustainable.
15. Apart the aforesaid, if it is deemed that the guidelines dated 9.2.10, has been issued under the statutory provision and the authority of the Central Govt. and with that angle if the case is examined even then the impugned order dated 8.6.10 (Anenx.P/7) is not sustainable because as per existing legal position and the constitutional provision every enactment, rules, regulations, policies and the guidelines are applicable with prospective effect and not with retrospective effect unless such provision, rules, regulations, policies and the guidelines are enforced by the legislation with retrospective effect by placing the dates and duration of the same and I have not found anywhere in this petition that the guidelines on which, the impugned order has been passed, has been enforced with retrospective effect. So, in such premises, it shall be deemed that the alleged guidelines has come into effect since 9.2.10 and not prior to that and the impugned decision of the State Govt. was taken initially on 19.12.07 and, therefore, such guideline was not applicable to the case of the petitioner and, in such premises, the Central Govt has committed error in returning the proposal of the State vide order dated 8.6.10 (Annex.P/7) to reconsider and re-examine the matter in the light of the guidelines dated 9.2.10 and send the proposal again. So, in such premises also, the impugned order is not sustainable.
16. In view of the aforesaid discussion, the impugned order dated 8.6.10 13 W.P. No. 4929/2011 (Annex.P/7) being perverse and contrary to law is not sustainable and deserves to be set aside. Therefore, by allowing this petition, the aforesaid order dated 8.6.10 (Annex.P/7) passed by the authorities of respondent No.1 is hereby set aside and case is remitted back to the authorities of the respondent No.1 with a direction to consider and decide the matter afresh in the light of the findings of this order, and without influencing from any findings or observation made in the aforesaid impugned order dated 8.6.2010 (Annexure-P-7), for grant of approval on the decision of State Govt. dated 19.12.07 (Annex.P/1) deciding to grant the prospecting licence in favor of the petitioner with respect of the aforesaid land. The respondent No.1 is also directed to consider the matter keeping in view the findings given in the order dated 15.3.10 (Annex.P/6) passed by the revisional court in the revision filed by M/s Tech Mak Ores and Minerals an applicant whose application was dismissed by the State Govt. while taking the decision on dated 19.12.07 (Annex.P/1). There shall be no order as to the cost.
17. Petition is allowed as indicated above.
(U.C.Maheshwari) Judge MKL 14 W.P. No. 4929/2011 15 W.P. No. 4929/2011