Maruti vs The on 20 June, 2008

[Cites 40, Cited by 0]

Gujarat High Court

Maruti vs The on 20 June, 2008

Bench: Anant S. Dave

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SCA/14135/2007	 48/ 48	ORDER 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

SPECIAL
CIVIL APPLICATION No. 14135 of 2007
 

With


 

SPECIAL
CIVIL APPLICATION No. 16150 of 2007
 

With


 

SPECIAL
CIVIL APPLICATION No. 21969 of 2007
 

 
 
For
Approval and Signature:  
 
HONOURABLE
MR.JUSTICE ANANT S. DAVE
 
 
=========================================================

Whether Reporters of Local Papers may be allowed to see the judgment ?

To be referred to the Reporter or not ?

Whether their Lordships wish to see the fair copy of the judgment ?

Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

Whether it is to be circulated to the civil judge ?

========================================================= MARUTI MINERALS & METALS - Petitioner(s) Versus THE GOVT. OF INDIA & 4 - Respondent(s) ========================================================= Appearance :

MR SN THAKKAR for Petitioner(s) : 1, MR DC SEJPAL for Respondent(s) :

1, MR MIHIR JOSHI AAG with MR SATYAM CHHAYA AGP for Respondent : 2-4 MR DIPEN C SHAH for Respondent(s) : 5, ========================================================= CORAM :

HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 16/06/2008 COMMON CAV ORDER Rule.

Mr.D.C.Sejpal, learned Central Government Counsel, Mr.Satyam Chhaya, learned AGP and learned counsel Mr.Dipen C. Shah, waive service of notice of Rule for respective respondents.

All these writ petitions involve similar issues for determination of this Court, in exercise of power under Article 226 of the Constitution of India therefore, with the consent of learned counsel for the parties, all these three writ petitions are taken up for hearing and disposed of by this common judgment.

Mr.Satyen Thakkar, learned counsel appearing for all the petitioners, submits that arguments and submissions advanced on the question of law are also common except certain facts, as stated in the Special Civil Application No.14135 of 2007. The petitioner is a proprietary concern and uses Manganese Ore for its captive consumption also. In Special Civil Application No.14135 of 2007, following prayers are made by the petitioner:-

?S(A) Your Lordships be pleased to issue writ of mandamus or a writ in the nature of mandamus, a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned notification dated 21.4.2005 and order dated 21.3.2007 at Annexures J & Q hereto respectively.

(B) Your Lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus, a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 31.8.2006 at Annexure-T hereto.

(B(i) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus, a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned notification dated 1.6.2007 at Annexure-U hereto.

(C) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus, or any appropriate writ, order or direction directing the respondent No.2 to complete the formality of execution of mining lease in favour of the petitioner pursuant to the orders dated 8.3.2002 and 18.2.2004 of the respondent No.1 & 2 respectively.

(D) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to:-

(i) Stay the operation and implementation of the impugned notification dated 21.4.2005 and order dated 21.3.2007 at Annexures J & Q respectively;

(ii) Stay the operation and implementation of the impugned order dated 31.8.2006 at Annexure-T hereto.

(D)(iii) Stay the operation and implementation of the impugned notification dated 1.6.2007 at Annexure-U hereto??.

Brief facts of Special Civil Application No.14135 of 2007 are as under.

According to the petitioner, who is in the mineral business since many years, and dealing in Manganese Ore, which is a major mineral governed by the provisions of the Mines and Minerals (Development and Regulations) Act, 1957 and Mineral Concessions Rules, 1960 (for short ?Sthe Act?? and ?Sthe Rules?? respectively).

Initially, as early as in the year 1954, a decision was taken by the then Government of Bombay for grant of an area of 800 acres and 22 gunthas of land for mining lease to M/s.Shivrajpur Syndicate Ltd. for a period of 20 years and lease was executed on 7.4.1954, which came to be surrendered to the State Government i.e. the respondent No.2 herein, later on. Thereafter, a declaration under Rule 59 of the Rules, by way of notification was issued on 16.10.1971 for re-grant of the said land to other interested bidders / lessees. Later on, the petitioner made an application for grant of mining lease on 19.6.1993 for removal of waste dumps of Manganese Ore from the area of Pani mines area, Taluka : Jetpur-pani, District Baroda and permits were granted to the petitioner for removal of waste dumps of Manganese Ore from the said area for a period of 5 years. It is the case of the petitioner that such temporary permits were granted by the officers of respondent Nos.2 and 4 for removal of Manganese Ore from 1994 to 2004.

That in the meanwhile, in the year 1995, the petitioner purchased a closed unit of Baroda Ferro Alloys for manufacture of ferro alloy where principal raw material was Manganese Ore. The said plant had 15000 M.T. per annum capacity and huge investment was also made for installation of the plant nearby the Manganese Ore. The petitioner has installed the plant, machinery, sheds and buildings in the tribal area of State of Gujarat and the company can provide employment to 300 persons per day and the unit also paid royalty, sales tax, excise duty etc. and other cesses. Thus, it has become necessary for the petitioner to have a mining lease and not a working permit, therefore, applications were made to the respondent No.2-State of Gujarat. Accordingly, proposals / recommendations were sent by State Government vide letters dated 29.5.2000, 4.10.2001 and 27.12.2001 to the Central Government for grant of mining lease to the petitioner. The said proposals were initially for 100 acres, which subsequently came to be modified to 60 acres. While forwarding the above proposals, the State Government had taken into consideration the requirement of the petitioner unit and other facts about unit operating its plant in backward area of the State of Gujarat and providing employment to the people in the surrounding area and paying taxes etc. That pursuant to the proposal, the Central Government-respondent No.1 in exercise of powers conferred under Section 5(1) of the Act, vide its order dated 8.3.2002, approved the same and conveyed it to the State Government for grant of mining lease of Manganese Ore for 60 hectares of area earmarked in the proposal for a period of 30 years. In the above order, a condition was stipulated that before allowing the grant of mining lease, the State Government may ensure the compliance of amended provisions of the Act, Rules and other applicable Acts and rules, including Forest Conservation Act, 1980. However, the respondent No.2 did take considerable time for issuing order dated 18.12.2004 by which a decision was conveyed to the petitioner for granting mining lease to the petitioner for a period of 30 years in term of its proposal dated 27.12.2001 approved by the Government of India vide order dated 8.3.2002 subject to certain conditions. In the above order dated 18.12.2004 also, 5 conditions were enumerated to be complied with by the petitioner, which includes furnishing of approved mining plans by IBM within six months from the date of the order, clearance of the Department of Forest and Environment to establish a plant based on Manganese Ore within 2 years from the sanction and approval of lease and other such incidental requirements. Pursuant to that the petitioner complied all the conditions save and except the condition No.2 about due certification of pollution clearance by the Gujarat Pollution Control Board (for short ?SGPCB??). The above clearance could not be obtained due to various objections raised by respondents Nos.2 to 5 in view of the Gujarat State Mineral Policy of 2003 and decision taken in the meeting dated 18.6.2004 headed by the Hon?"ble Chief Minister of the State of Gujarat for clarification and removal of objections with regard to implementation of Mining Policy of the State, as declared in 2003, and subsequent order issued by respondent No.2 dated 21.4.2005 for reservation of mining and Manganese Ore by Gujarat Mineral Development Corporation (for short ?SGMDC??), the respondent No.5 herein. However, such objections were not required to be taken into consideration by the GPCB in view of the approval dated 8.3.2002 by the respondent No.1 and subsequent decision dated 18.12.2004 of respondent No.2 based on the above approval of granting mining lease to the petitioner for a period of 30 years, since according to the petitioner, the decision to reserve the Manganese Ore for mining purpose exclusively for GMDC was taken subsequently and qua the petitioner was not effective at all.

However, subsequently, the respondents Nos.2, 3 and 4 even refused to issue work permits and process of executing lease deed between the petitioner and the authority was not actuated in view of the notification dated 21.4.2005 issued by respondent No.2, as stated above. Subsequently an approval from the Central Government was sought for by letter dated 22.11.2005 by the State Government to exercise power under Section 17-A(2) of the said Act for reserving the areas in question for carrying out mining operation of Manganese Ore through GMDC, which came to be granted by the Central Government by an order dated 31.8.2006 and later on even a notification dated 1.6.2007 was also issued by the respondent No.2 pursuant to the above approval, which is also subject matter of challenge of this petition.

Prior to this, the petitioner herein along with other petitioners preferred Special Civil Application No.10003 of 2006 and allied matters challenging the notification dated 21.4.2005 on various grounds, which came to be disposed of by an order dated 23.8.2006 of the learned Single Judge with certain directions to be decided by the respondents after affording an opportunity of hearing and the decision to be communicated to the petitioners. Accordingly, representation was made by the petitioners on 1.9.2006 in detail which came to be rejected by an order dated 21.3.2007 after hearing the petitioners and after careful consideration of the interest of the State, opportunities for generating employment in the State of Gujarat and also after taking into consideration the requirement of the petitioners with regard to raw material of Manganese Ore for its captive plant to be taken care by the GMDC. The above decision dated 21.3.2007 is also subject matter of challenge in these petitions on the ground of non-application of mind and de void of any reasons being a non-speaking order along with the grounds raised to challenge the notification dated 21.4.2005 issued by respondent No.2 and subsequent order dated 21.3.2007 and notification dated 1.6.2007 specifying local limits of certain reserved area for undertaking prospecting or mining operation of Manganese Ore for the GMDC-respondent No.5 for 30 years.

Mr.Satyen Thakkar, learned counsel for the petitioners, submits that the impugned order dated 21.3.2007 as well as the notification dated 21.4.2005 of respondent No.2 are patently illegal, arbitrary, unreasonable, irrational and deserve to be quashed and set aside inasmuch as while rejecting the representation dated 21.3.2007, the respondent No.2, though directed by the learned Single Judge to consider the representation and decide the same after grant of opportunity of personal hearing, did not consider any of the contentions raised by the petitioners, therefore, the impugned order is not in conformity with the directions issued by this Court and deserves to be quashed and set aside. He further submits that the order dated 21.3.2007 is de void of reasons, therefore, the same is a non-speaking order and cannot be sustained as legal and valid and on this ground alone the same deserves to be quashed and set aside.

Learned counsel for the petitioner submits that rejection of the request for grant of mining lease to the petitioner excluding the area in question as sanctioned and approved by the Central Government vide order dated 8.3.2002 from the proposal sent under Section 17-A(2) of the Act is not germane to exercise of power conferred under Section 5 read with Section 11 of the Act. According to learned counsel for the petitioner, proviso to Section 5 of the Act mandates that in support 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. In the present case, notification dated 16.10.1971 reveals that the mining lease area of the erstwhile lessee M/s.Shivrajpur Syndicate Limited was available for re-grant, therefore, the respondent No.2 would not be in a position to dispute its satisfaction under sub-section (2) of Section 5 of the Act with regard to evidence to show that the area for which the lease is applied for has been prospected earlier or the existence of mineral contents therein has been established otherwise than by the means of prospecting such area and there is a mining plant duly approved by the Central Government or by the State Government in respect of such category of mines as specified. Therefore, when the mining plant of the petitioner was approved by IMB, there was no justification to reject the representation of the petitioner on the ground that the area was mining area of Manganese Ore and was exclusively reserved for respondent No.5.

It is further contended that when the order dated 18.12.2004 was passed for sanctioning the lease in favour of the petitioner after the approval was granted by the Central Government vide order dated 8.3.2002 in exercise of power under Section 5 of the Act, all rights have been crystallized in favour of the petitioner, more particularly, when the petitioner had complied with all the conditions laid down in the aforesaid orders, after approval, sanction and grant of lease by respondents Nos.1 and 2. According to learned counsel for the petitioner, the petitioner cannot be deprived of his legal rights accrued out of the above two orders passed by respondents Nos.1 and 2 on the ground of subsequent issuance of notification reserving mining area of Manganese Ore by GMDC-respondent No.5 and even subsequent approval of the proposal dated 22.11.2005 of respondent No.2 by respondent No.1 vide order dated 31.8.2006 and subsequent notifications by the State Government and notification under Section 17-A(2) of the said Act do not affect in any manner the rights of the petitioner. Therefore, the lease deed must be executed in favour of the petitioner in exercise of power under Section 5(A) of the Act.

Mr.Satyen Thakkar, learned counsel for the petitioner submits that the Mining Policy is declared in 2003 by respondent No.2 and it cannot be said to be a policy decision. It is further submitted that the order dated 21.4.2005 and notification dated 1.6.2007 by respondent No.2 are unreasonable, arbitrary, irrational, malafide and defeating the rights of the petitioner under Articles 14 and 19(1)(g) of the Constitution of India, therefore, they are required to be quashed and set aside. The above arbitrary, unreasonable, malafide exercise of powers is reflected in view of the fact that the proposal dated 22.11.2005 sent by respondent No.2 to respondent No.1 under Section 17A(2) of the Act for seeking its approval does not contain any mention about a particular area for which approval was already granted on earlier occasion by respondents Nos.1 and 2 in exercise of powers under Section 5 of the said Act. The suppression of the above fact of earlier orders dated 8.3.2002 and 18.12.2004 passed by respondents Nos.1 and 2 in favour of the petitioner for grant of lease is a colourable exercise of power and deserves to be quashed and set aside.

It is further contended that while approving the proposal dated 22.11.2005 of the respondent No.2 to respondent No.1, no opportunity is given to the petitioner in spite of the fact that as early as on 8.3.2002 approval was granted by the respondent No.1 for mining lease for the area earmarked therein and pursuant to that respondent No.2 had also issued order of granting lease on 18.12.2004 and, therefore, the petitioner was at least entitled for opportunity of hearing, and had there been any opportunity granted to the petitioner, the above fact could have been pointed out to respondent No.1 that the subsequent proposal of the State Government contained the very same area. Not only that but according to the learned counsel for the petitioner, approval means application of mind by the authority on relevant facts and taking into consideration various other factors the authority can exercise the power. In the present case, approval is granted in a mechanical manner and therefore, also, the approval dated 31.8.2006 by respondent No.1 is also unreasonable, arbitrary and violative of Article 14 of the Constitution of India and also violative of principles of natural justice.

It is next contended by learned counsel for the petitioner that the aspects about providing opportunity of employment and revenue can be taken care of by the petitioner also and that there was no public interest in preserving the area for mining exclusively in favour of respondent No.5-GMDC.

However, during the pendency of the petition, respondent No.2 has issued notification dated 1.6.2007 and the same is challenged by way of draft amendment and it is respectfully submitted that the above notification is also illegal, arbitrary, unreasonable and colourable exercise of powers on the same grounds for which order of approval dated 31.8.2006 passed by respondent No.1 is challenged in this petition. Thus, according to learned counsel for the petitioner, the petitioner has purchased a closed unit of ferro alloy and developed the same on the basis of grant of lease to the petitioner in accordance with law by respondents Nos.1 and 2 after following procedure of law and subsequent issuance of notification dated 21.4.2005 by respondent No.2 declaring and specifying certain areas to be reserved for undertaking prospecting or mining operation of Manganese Ore exclusively for the GMDC-respondent No.5 herein for a period of 30 years deprives the petitioner of his basic legal right to carry on trading and industrial activity and, therefore, applicability of impugned notification dated 1.6.2007 with retrospective effect cannot be permitted by this Court and necessary directions can be issued to the respondents as prayed for in the petition.

It is further submitted that by exclusively reserving mining of Manganese Ore amounts to monopolizing mining activity in favour of respondent No.5 and would encourage profiteering which would not be in the public interest and directions contained in the order dated 21.3.2007 of rejecting representation to the petitioner to approach GMDC-respondent No.5 for necessary quota for captive consumption of Manganese Ore is not just and proper since the petitioner will be left to the mercy of respondent No.5.

Mr.Mihir Joshi, learned Additional Advocate General for the respondent No.2, has opposed grant of any relief to the petitioner on the ground that no right accrues in favour of the petitioner in view of non-execution of sale deed in favour of the petitioner by respondent No.2.

According to learned Additional Advocate General, there are two broad perceptions for considering the contentions of an aggrieved party as to whether the claim is based on equity or on relevant facts and law. However, in case of a challenge of any action of the authority actuated with malafide, the Court can consider the relevant aspect but otherwise an aggrieved person or a party is not entitled to be heard. It is submitted that neither claim of the petitioner is based on equity and relevant facts nor on the provisions of the statute and no specific pleadings of malafide are made much less supported by any material. Therefore, the petitioner has no locus to challenge the impugned orders and notifications passed and issued by the respondents Nos.1 and 2 as challenged in the prayer clause.

It is submitted that Section 17 empowers the Central Government to undertake prospecting or mining operation in certain areas and the above powers are special powers. However, Section 17A is pertaining to reservation of area for purposes of conservation. The above Section 17-A is inserted by the Central Act 37 of 1986 and with a view to conserve any minerals, after consultation with the State Government the Central Government may reserve any area not already held under any prospecting licence or mining lease and by issuing proper notification in the Official Gazette, boundaries of which area can be specified and such area can be reserved. That Section 1-A came to be added in Section 17 by Central Act 25 of 1994 which empowers Central Government in consultation with State Government to reserve any area not already held under any prospecting licence or mining lease for mining operation through a Government company or Corporation owned or controlled by it and other procedure is the same as reflected in Section 17-A(1) of the Act. However, according to learned Additional Advocate General, the subject matter of this petition mainly revolves around exercising of power under sub-Section (2) of Section 17A by which the State Government may, with the approval of Central Government, reserve any area not already held under any prospecting licence or mining lease or undertaking prospecting or mining operations through a Government Company or Corporation owned or controlled by, and where it proposes to do so, the State Government by notification in the Official Gazette specify such boundary of such area and the mineral or minerals in respect of such areas will be reserved. Therefore, according to learned Additional Advocate General the above provisions of Section 17A(2) requires strict consideration and if so construed the implications are obvious and apparent and when prior approval by the Central Government is granted for this purpose, no further interference is called for in exercise of power under Article 226 of the Constitution of India by this Court.

As a corollary, it is submitted that the petitioner is not a holder of mining lease and, therefore, on the basis of earlier orders dated 8.3.2002 of respondent No.1 and order dated 18.12.2004 passed by respondent No.2, no legal right accrues in favour of the petitioner and on the basis of some incohesive right, submissions made by the learned counsel for the petitioner cannot be accepted and deserve to be rejected.

It is further contended that declaration of Mining Policy in the year 2003 by the State Government as clarified in the meeting of the High Power Committee held under the Chairmanship of the Hon?"ble Chief Minister on 18.6.2004 and by way of such policy reflected in the notification dated 21.4.2005 pertaining to development of certain minerals including the Manganese Ore by respondent No.5-GMDC certain areas are reserved and cannot be a subject matter of review by this Court and no power under Article 226 of the Constitution of India can be exercised.

Learned Additional Advocate General further submits that powers under Section 5 of the Act and Section 17-A(2) are in a different arena and particularly provisions of Section 17A(2) are of special nature and any prior approval granted to the petitioner by order dated 8.3.2002 by respondent No.1 and subsequently by order dated 18.12.2004 of respondent No.2 cannot come in the way of policy decision of respondent No.2 and issuance of subsequent notification dated 21.4.2005 and approval by respondent No.1 on 31.8.2006 and final notification dated 1.6.2007 in exercise of power under Section 17A(2) of the Act by the State Government cannot be said to be in any manner unreasonable, arbitrary or colourable exercise of power by the authorities viz. respondent No.1 and respondent No.2.

It is further submitted that while granting approval by an order dated 31.8.2006 exercising powers under Section 17A(2), there was no adjudicatory process involved in taking the decision inasmuch as the Central Government was not required to resolve any dispute and there was no lis. In view of the above, when the approval is granted after due consideration of the proposal sent by respondent No.2, no opportunity of hearing was necessary and it cannot be said that the above decision of respondent No.2 is vitiated on the ground of violation of principles of audi alteram partem.

That the decision taken by the respondent No.2, according to learned Additional Advocate General is after careful consideration of various aspects and a conscious decision was taken as stipulated above by the High Power Committed empowered under the Chairmanship of the Hon?"ble Chief Minister which reviewed the Mineral Policy for the State of Gujarat and in the public interest it was decided that certain minerals be exploited and developed through the Corporation of the State Government viz. respondent No.5 herein and, therefore, a resolution dated 21.4.2005 was issued and later on a proposal was forwarded by the State Government to Central Government for reservation of the area for undertaking mining operation through GMDC and for approval under Section 17A(2) of the Act. It is duly approved by the Central Government-respondent No.1 vide order dated 31.8.2006 and therefore, subsequent notification dated 1.6.2007 cannot be challenged by the petitioner since no right accrues to the petitioner and no question of giving an opportunity of hearing to the petitioner arises before reservation of certain areas, as per the above notification.

It is further submitted that the allegations of malafide have no basis except reference to memorandum of understanding signed by respondent No.5-GMDC herein with two private parties, which is subsequent to the meeting of the High Power Committee and issuance of notification dated 21.4.2005.

It is further contended that out of total reservation area, at the most, the area which was granted to the petitioner on earlier occasion contains 3% of the total area and there cannot be any exercise of power in illegal manner to deprive a particular person or a party which is insignificant under the work permit, while taking a policy decision by the State Government.

It is further contended that from 1996 onwards till 2004, the petitioner was only granted work permits and nothing beyond that which does not create any right in his favour and as far as purchase of closed ferro alloy unit is concerned, no promise was ever given by respondent No.2 or any other authority and it was exclusively a sole liability and responsibility of the petitioner.

That, according to learned Additional Advocate General, the respondent No.5 is better equipped and can explore, excavate and develop minerals scientifically and technologically than the petitioner and even can generate more employment in the backward area of the State of Gujarat. All the above facts have weighed with the respondent State authorities and representation was considered in the light of the directions given by the learned Single Judge i.e. after affording due opportunity of hearing to the petitioner and therefore, it cannot be said that order rejecting the representation lacks reasoning or in any manner does not comply with the spirit of the order of this Court.

In the matter of framing policy and any decision taken pursuant to such policy by the State Government, no legal right accrues to the petitioner and no opportunity of hearing is necessary. However, according to learned Additional Advocate General, the respondent No.5-GMDC is also directed to consider the case of the petitioner for raw material to be supplied from time to time for captive consumption of the unit of the petitioner and therefore also, no damage on this aspect is caused to the petitioner, hence also, this petition deserves to be dismissed.

Mr.Dipen Shah, learned counsel for the respondent No.5-GMDC, adopted the submissions canvassed by learned Additional Advocate General. Learned counsel has denied allegations of malafide as the same is without any basis. However, it is submitted by learned counsel for the respondent No.5 that lease deed is not executed and conditions enumerated in the order dated 18.12.2004 issued by respondent No.2 are not complied with. It is further submitted that respondent No.5-GMDC is a class by itself and being a public sector undertaking is placed on a better footing than the petitioner. Not only that but as per the notification dated 25.7.1991 of the Central Government, mining of Manganese Ore is reserved for public sector undertaking and the petitioner had never applied for licence under Section 13 of Industries (Development and Regulation) Act, 1951 to carry on mining of Manganese Ore and it is not registered under Section 10 of the above Act. Learned counsel for the respondent No.5 further submits that act of reserving an area for exploiting and development of minerals by public sector undertaking is a legislative function and not simply an administrative function of the State as undertaken while awarding the mining lease under Section 5 of the Act and Section 17A of the Act of 1957 is altogether a different exercise of power by the authorities. According to learned counsel for the respondent No.5, the petitioner was given work permit only with a view to dump waste materials after excavation of Manganese Ore and the petitioner has no technical qualification or expertise for mining, and had relied on certain technical data about captive requirement of the petitioner and paid royalty from 1992 to 2004, which reveals that for all these years production in terms of MT/per annum was 12,386 and royalty paid by the petitioner was only Rs.2,41,264/- It is further contended that the respondent No.1-Central Government never issued any order for granting mining lease to the petitioner and Manganese Ore being a major mineral has specified in Schedule I of the Act and before taking an official decision on the application of the petitioner for mining lease, prior approval / concurrence of Central Government is required and as part of such procedure consultation was made by the State Government as envisaged by Section 5 of the Act, which is an administrative function in nature and on the basis of such approval and decision, no legal right accrues unless it is crystallized in the form of lease deed and that also can be cancelled in public interest in a given case. According to learned counsel for the respondent No.5, before taking any decision various aspects are taken into consideration like Government Policy, conservation of mines, development and protection of mines, etc., and in this case even the petitioner has not produced approved mining plans within six months and with regard to signing of MoU with two private parties, only after resolution dated 21.4.2005 was passed in favour of respondent No.5-GMDC for reserving certain areas such MoUs were entered into. The above proposal was for setting up a manufacturing plant bearing the investment of Rs.171 crores by one party and for investment of Rs.300 crores by the second party in various projects pertaining to Manganese Ore. Those MoUs are for the supply of Manganese Ore of high grade in volume of 2000 lakhs MT/per annum to each of the parties and looking to the vast experience and expertise of respondent No.5-GMDC, the decision taken by the State Government in favour of GMDC does not deserve any interference of this Court under Article 226 of the Constitution of India.

Learned counsel for the respondent No.5 lastly submitted that amendment made in Article 19 shows that according to the legislature, a law relating to the creation of State monopoly should be presumed to be in the interest of general public and no limit is placed on the power of the State in respect of creation of such State Monopoly. Therefore, according to the learned counsel, the act of reserving Manganese Ore throughout the State of Gujarat for exploration by GMDC is in consonance with the constitutional goal of distributive justice for public good and deserves to be upheld by this Court.

In the rejoinder, learned counsel for the petitioner reiterated the submissions canvassed by him and submitted that relevant files pertaining to the decision making process by the respondents Nos.1 and 2 may be called for so that this Court can peruse the same so as to find out whether there is any application of mind by the concerned authorities. Learned counsel for the petitioner reiterated that even policy decision can also be reviewed by the Court exercising powers under Article 226 of the Constitution of India. Learned counsel for the petitioner has relied on various decisions of the Apex Court, which are discussed hereunder.

Learned counsel for the petitioner relying on the decision reported in AIR 1990 SC 2205 in the case of State of West Bengal v. Atul Krishna Shaw submitted that duty is cast upon the authority to assign reasons and giving of reasons is an essential element of administration of justice. Another decision reported in AIR 1991 SC 1153 in the case of G.B.Mahajan and others v. The Jalgaon Municipal Corporation was relied for the same purpose where the Apex Court quoted an authoritative work- Administrative Law of Prof.Wade that powers must be exercised reasonably. Next in line is a reported decision in AIR 1990 SC 1031 in the case of Mahabir Auto Stores v. Indian Oil Corporation and submitted that even in the realm of contractual and/or statutory transactions, judicial review is permissible, when an administrative decision is impeached on the ground that the decision is arbitrary or violative of Article 14 of the Constitution on any of the grounds available in public law field. The next decisions are AIR 2002 SC 350 in the case of Balco Employees Union (Regd.) v. Union of India, AIR 2003 SC 3983 in the case of Union of India v. International Trading Co. and AIR 2003 SC 2562 in the case of Onkar Lal Bajaj v. Union of India. He submitted that even challenge in policy is illegal which it may result in adversely affecting the vested interests and policy is contrary to law or malafide and such a decision bringing about change can be interfered. Learned counsel for the petitioner next relied on decision reported in JT 1993(3) SC 15 in the case of U.O.I. & Ors. v. Hindustan Development Corporation and submitted that the petitioner who was issued an order of grant of lease was having legitimate expectation that the authority would act in furtherance of the order to execute lease deed with the petitioner. Relying on decisions reported in AIR 1996 SC 11 in the case of Tata Cellular v. Union of India, it was submitted that an administrative action is subject to control of judicial review in three broad aspects viz. (i) illegality, meaning thereby the decision maker must understand correctly the law that regulates his decision making power and must give effect to it, (ii) irrationality, namely, Wednesbury unreasonableness, and (iii) Procedural impropriety, and according to learned counsel for the petitioner, in the present case on all the above three aspects, decision impugned of respondents Nos.1 and 2 are subject to judicial review. Lastly, learned counsel for the petitioner relied on the decision reported in 2007(5) AIR Kar R 537 in the case of H.G.Rangangoud & etc. v. Ministry of Coal and Mines, Dept. of Mines, New Delhi for exercise of powers by the authority under Section 17A(1A) of the Act.

Mr.Mihir Joshi, learned Additional Advocate General relied on decision of the Apex Court reported in JT 2006(10) SC 318 in the case of M/s. Pallava Granite Industries (India) Pvt. Ltd. v. Union of India in support of his submission stating that no mining lease having been granted to the appellants of that case, it was held that there was no crystallization of any rights and therefore, there was no bar for reserving the land for exploiting through a public sector undertaking in context of Section 17A of the Act. Learned Additional Advocate General further relied on another decision of the Apex Court reported in (2006) 12 SCC 331 in the case of Indian Charge Chrome Ltd. v. Union of India and submitted that under Section 17A(2) powers are vested in the State Government to reserve an area for mining operation through a Government Company, which is independent of, and not related to, the power of grant of mining lease under Section 11 in the above case and Section 5 herein and not subject to any judicial review particularly in view of the fact that the powers of Section 17A(2) are not restricted ?Sfor purposes of conservation??, but for reserving an area for Government undertaking for mining operation. Learned Additional Advocate General next relied on the decision of the Apex Court reported in (1996) 5 SCC 268 in the case of P.T.R. Exports (Madras) Pvt. Ltd. v. Union of India and submitted that Government and legislature has power to evolve its new policy in public interest, which includes its power to withdraw the old policy and the Court would not bind the Government to its previous policy by invoking the doctrine of legitimate expectation unless the change in policy is vitiated by malafide or abuse of powers. It is further submitted that even doctrine of promissory estoppal is not applicable in such circumstances. Learned Additional Advocate General lastly relied on the decision of the Apex Court reported in (2003) 5 SCC 437 in the case of Union of India v. International Trading Co. and submitted that expectation to be legitimate must be founded on sanction of law and the claim based on legitimate expectation without anything more cannot confer a right on the claimant.

Mr.Dipen Shah, learned counsel or the respondent No.5 has relied on various decisions reported in AIR 1979 SC 621 in the case of M/s.Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh, AIR 1987 SC 2414 in the case of Delhi Cloth & General Mills Ltd. v. Union of India, (1995)1 SCC 274 and (1997) 3 SCC 398 in the case of Shrijee Sales Corporation v. Union of India and submitted that promissory estoppal cannot be invoked against the Government when Government can resile from its representation or promise on the ground of supervening public equity or public interest overriding individual equity or interest. Lastly learned counsel for the respondent No.5 relied on the decision of the Apex Court reported in 1963 SC 1047 in the case of Akadasi Padhan v. State of Orissa and submitted that State monopoly in respect of any trade or business must be presumed to be reasonable and in the interest of general public.

Having heard learned counsel for the respective parties and having perused the record of the case containing various pleadings, annexures, orders, notifications etc. impugned in the context of factual and legal aspects of the subject matter, it is relevant to notice that the Mines and Minerals (Development and Regulations) Act, 1957 is a Central Legislation enacted by the Parliament with the subject matter of regulation of mines and minerals which are mainly governed by entry 54 in the Union list and entry 23 of list II of 7th Schedule of the Constitution of India and as per Section 2 of this Act and whenever it is expedient in the public interest, the Union should take under its control the regulation of mines and the development of minerals to the extent as provided in the Act itself, Section 4 is pertaining to prospecting or mining operations to be under licence or lease and provide for general restrictions for the above purposes. Sub-section (3) of Section 4 is relevant which provides that any State Government, may, after consultation with the Central Government, in accordance with rules made under Section 18 undertake reconnaissance, prospecting or mining operations with respect to any mineral specified in the First Schedule in any area within the State which is not already held under any reconnaissance permit, prospecting licence or mining lease. Section 4-A is with regard to termination of prospecting licence or mining leases. Section 5 is about restrictions on the grant of prospecting licence or mining lease. Section 6 is about maximum area for which a prospecting licence or mining lease may be granted. Section 7 is about periods for which prospecting licence may be granted or renewed. Section 8 is about periods for which mining leases may be granted or renewed. Section 9 is about royalties in respect of mining leases. Section 11 is about preferential right of certain persons in obtaining a prospecting licence or mining lease, as the case may be, and Section 13 is pertaining to rules for regulating the grant of prospecting licences and mining leases and pertaining to powers of Central Government to make rules in respect of minerals.

The above provisions thus provide for grant of prospecting licence or lease and rules governing for the subject matter. That by virtue of powers conferred by the Act, the Mineral Concession Rules, 1960 were framed by the government of India under Section 13 of the Act and by virtue of powers conferred under Section 15 of the Act, the State of Gujarat framed the Gujarat Mining Minerals Rules, 1966, which govern the field of development and regulation of major and minor minerals.

However, we are concerned with Section 17, more particularly, Section 17-A(2) of the Act, which determines the issue involved in this petition. Section 17 is pertaining to special powers of Central Government to undertake prospecting or mining operations in certain cases and Section 17-A is about reservation of area for the purposes of conservation, which came to be inserted by Central Act 37 of 1986 and sub-section (1A) came to be inserted by Central Act 25 of 1994. Sub-Section (2) of Section 17-A empowers the State Government to reserve any area not already held under any prospecting licence or mining lease for undertaking prospecting or mining operations through a Government company or Corporation owned or controlled with the approval of the Central Government and proposal is to be made accordingly and by notification in the Official Gazette boundaries of such area and the mineral or minerals in respect of which such areas will be reserved. For ready reference Section 17-A of the Act is reproduced hereunder :-

?SSec.17-A. Reservation of area for purposes of conservation;- (1) The Central Government, with a view to conserving any mineral and after consultation with the State Government may reserve any area not already held under any prospecting licence or mining lease and, where it proposes to do so, it shall, by notification in the Official Gazette, specify the boundaries of such area and the mineral or minerals in respect of which such area will be reserved.

[(1A) The Central Government may, in consultation with the State Government, reserve any area not already held under any prospecting licence or mining lease, for undertaking prospecting or mining operations through a Government company or corporation owned or controlled by it, and where it proposes to do so, it shall, by notification in the Official Gazette, specify the boundaries of such area and the mineral or minerals in respect of which such area will be reserved] (2) The State Government may, with the approval of the Central Government, reserve any area not already held under any prospecting licence or mining lease, for undertaking prospecting or mining operations through a Government company or Corporation owned or controlled by and where it proposes to do so, it shall by notification in the Official Gazette, specify the boundaries of such area and the mineral or minerals in respect of which such areas will be reserved.

(3) [Where in exercise of the powers conferred by sub-section (1A) or sub-section (2) the Central Government or the State Government, as the case may be] undertakes prospecting or mining operations in any area in which the minerals vest in a private person, it shall be liable to pay prospecting fee, royalty, surface rent or dead rent, as the case may be, from time to time at the same rate at which it would have been payable under this Act if such prospecting or mining operations had been undertaken by a private person under prospecting licence or mining lease]??.

Thus, undisputed proposition of law emerges that powers are conferred under subsection (1) of Section 17-A for conservation of any mineral after consultation with the State Government any area, not already held under any prospecting licence or mining lease, can be reserved by the Central Government and for conserving any mineral notification will have to be issued in the Official Gazette specifying the boundaries of such area and the mineral. Clause (1A) of subsection (1) of Section 17-A which was subsequently inserted empowers the Central Government in consultation with the State Government to reserve any area not already held under any prospecting licence or mining lease, for such purpose the procedure remains same as per sub-section (1).

Likewise, the State Government under sub-section (2) of Section 17-A is empowered with the approval of the Central Government to reserve any area not already held under any prospecting licence or mining lease, for undertaking prospecting or mining operation through a Government company or Corporation owned or controlled by such Government also and procedure to be followed is the same.

In exercise of the above powers conferred in Section 17-A(2), a notification dated 1.6.2007 at Annexure-U is issued which contained decision and earlier resolution of Department of Industries and Mines of the State of Gujarat dated 21.4.2005 specifying Manganese Ore mineral in respect of certain areas which were reserved for GMDC-respondent No.5 herein and for which proposal was sent to the Central Government, as required under sub-section (2) of Section 17-A of the Act and approval dated 31.8.2006 was granted by the Central Government. In view of the above two decisions, the final notification issued which reserves certain areas specified in this notification for prospecting or mining operation of Manganese Ore for GMDC for a period of 30 years from the date of publication of the notification. It is pertinent to note that prior to issuance of this notification, an elaborate exercise as envisaged under the Act was undertaken by the respondent No.2.

It is to be noted that as early as in the year 2003, the State of Gujarat has framed its Mineral Policy considering the mineral reserves as important ingredient of the State economy and yardstick to measure the economic growth since mineral consumption is an indicator of industrial development of a particular area. Not only that but minerals are directly or indirectly a basic raw material for strategic industries and therefore, it was essential to manage mineral resources with utmost care. It further specified that mineral is finite and nonrenewable natural resource. Rational approach and planning for mineral exploitation, exploration and development of mineral resources was imperative and therefore, a policy was framed for beneficial utilization of mineral resource in accordance with environmental protection, mines safety and mineral conservation optimum utilization of mineral with minimum waste and maximum mineral revenue generation through value addition in accordance with National Mineral Policy.

After considering various facets and factors pertaining to minerals and after carrying out survey of the resources, minerals were identified and it was decided to prepare a Mineral Atlas and a Data Bank. It further considered total area for mineral exploitation, minerals production and revenue income of minerals. It was considered on the basis of exploration reports that mineral bearing areas of dolomite and Manganese are to be earmarked survey number-wise keeping in view the reservation quota usage and industrial importance and thereafter reference was specifically made in Annexure-3 of the said policy which contained notification of Ministry of Mines, Government of India dated 12.9.2000 at Item No.30 which contained Manganese Ore. Thereafter, a High Power Committee, under the Chairmanship of the Hon?"ble Chief Minister of State of Gujarat, in the meeting held on 18.6.2004, it was decided that Manganese Ore, a mineral deserves special consideration and development along with other minerals to be undertaken by a State Government Corporation viz. GMDC-respondent No.5 herein. That a perusal of the minutes of the meeting reveals the above aspect, and pursuant to this, notification dated 12.4.2005 was issued which also referred to the Mineral Policy of the State framed in the year 2003 and the decision taken in the meeting dated 18.6.2004.

A careful perusal of the Mineral Policy, 2003, the discussion which took place in the High Power Committee meeting on 18.6.2004, and subsequent issuance of notification dated 21.4.2005, do not reveal any unusual or irregular phenomena in the decision making process by respondent No.2 and when powers are exercised in just, valid and legal method in accordance with law, powers of this Court under Article 226 of the Constitution are circumscribed by decision of the Apex Court. This Court has a limited scope to go through the decision making process and not beyond that. It is born out from the record that after notification dated 21.4.2005 came to be issued by respondent No.2 in favour of respondent No.5-GMDC to reserve areas for development of Manganese Ore, a proposal based on the above decision was sent by the State Government to the Central Government which received its approval on 31.8.2006. Thus, the procedure as envisaged under Section 17-A(2) was duly followed by the State authorities and, therefore, contentions of learned counsel for the petitioner about notification dated 16.2.2007 as unjust, unreasonable, arbitrary, colourable exercise of power by the State authorities and violation of Article 14 of the Constitution of India cannot be accepted.

Having noticed the above exercise of power under Section 17-A(2) by the State Government in just and legal manner, contention of learned counsel for the petitioner that the petitioner is deprived of his legitimate right which according to him accrued after passing order of granting lease dated 18.2.2004 by respondent No.2 pursuant to the approval dated 8.3.2002 by respondent No.1 for a parcel of area for mining lease of Manganese Ore, if examined in the factual background that the above area of lease is forming only 3% of the total area of Manganese Ore reserved for GMDC and decision taken by the respondent No.2 cannot be said to be discriminatory and arbitrary, more particularly when no material is placed on record of this case and even without indicating that the decision was vitiated with any colourable exercise of power only with a view to oust the petitioner from the business. Therefore, the above contention about colourable exercise of power also fails.

That another contention about legal right of the petitioner in view of sanction / grant of mining lease in favour of the petitioner, the area for which order for grant of mining lease was passed on 18.2.2004 by respondent No.2, cannot be said to be the area held by the petitioner for mining lease. Therefore, it was open for the State Government to send a proposal for total reservation of Manganese Ore in favour of GMDC, a State Government Corporation, and there is no legal obligation on the part of the State authorities to disclose the fact that parcel of area of Manganese Ore was on earlier occasion granted to the petitioner in exercise of power conferred under Section 5 of the Act.

It may not be gainsaid that powers conferred under Section 5 and Section 17-A(2) of the Act govern different areas and Section 17-A(2) specifically provides for reservation of any area not already held under any prospecting licence or mining lease, in favour of the government company or a Corporation owned or controlled by the State Government subject to approval of the Central Government and the procedure to be followed therein. According to this Court, nothing precludes the State Government from reserving such area for prospecting licence or mining lease of a mineral after seeking approval of the Central Government. However, the only rider is that such an area ought not to have been held under any mining lease or prospecting licence. The petitioner being not holder of mining lease, no legal right accrues to the petitioner and no grievance can be made about violation of any right of the petitioner. It is to be noted that under sub-rule (4) of Rule 11 of Gujarat Mining Minerals Rules, 1966 the petitioner is duty bound to execute lease deed within 3 months from the date of the order signing the lease and the very rule provides that if no such deed is executed within the said period, the order granting lease shall be deemed to have been rejected.

Even perusal of sub-section (3) of Section 4 empowers State Government, with prior consultation with the Central Government in accordance with rules made under Section 18 to undertake reconnaissance, prospecting or mining operations of mineral specified in the First Schedule in any area within the State which is not already held under any reconnaissance permit, prospecting licence or mining license and Section 5 put restrictions on the grant of prospecting licences or mining licences to any person subject to certain conditions, as discussed in earlier paragraph. Therefore, restriction qua exercise of the power by the State Government is circumscribed only if any area is already held for reconnaissance permit, prospecting licence or mining lease. The above restriction continues while exercising power under Section 17-A(2) of the Act, though altogether a different exercise of power by the State Government and in the present case such exercise of power is bona fide and in the public interest therefore, incohesive right of the petitioner, if any, has to give way to the public interest.

The contention raised by learned counsel for the petitioner about legitimate expectation on the part of the petitioner that the petitioner had purchased a closed ferro alloy unit and Manganese Ore was forming a major part for captive consumption and from 1996 till 2004, the petitioner was given work permits and subsequently, even an order of granting mining lease was also passed by respondent No.2-State of Gujarat on 18.12.2004 and therefore, duty was cast upon respondent No.2 to execute lease deed particularly when the petitioner has abided by the conditions laid down in the above order also cannot be accepted on the ground that purchasing a closed unit had nothing to do with the State Government-respondent No.2 herein and no promise or assurance was given to the petitioner for continuous and regular supply of Manganese Ore. Not only that but work permits were issued only for a limited purpose for waste dumping and nothing beyond that. That even track record of the petitioner is not clean and in the past the petitioner was penalized for breach of conditions of work permit. Since the lease deed was not executed as per the requirement of law under sub-rule (4) of Rule 11 of the State Rules within 3 months from the grant of such order, the petitioner is not a holder of mining lease and cannot ascertain any right on the basis of an order of granting lease and therefore, this contention cannot be accepted.

The subject matter and other contentions about public interest versus private interest if examined, the respondent No.5 is a State Government corporation equipped with better technology, experience and expertise for development of minerals and has established credentials in the area of mineral development. Therefore, a faint attempt made by the learned counsel for the petitioner that reserving Manganese Ore for GMDC was based on some understanding arrived at between the respondent No.5 and two private parties as per Memorandums of Understanding, is also contrary to record inasmuch as MoUs were drawn by respondent No.5 with two private parties in the year 2006 i.e. admittedly after the Mineral Policy of 2003 and notification dated 21.4.2005 came into force, therefore, such allegations without joining private parties as respondents, nothing more can be examined by this Court. Any understanding arrived at between respondent No.5 and two private parties is pursuant to the Mineral Policy of 2003 and has no relevance with reservation of Manganese Ore development by GMDC. The allegations of malafide cannot be probed on the basis of vague averments and no fishing inquiry can be made by this Court in exercise of power under Article 226 of the Constitution of India.

That the contention about violation of principles of natural justice and requirement of hearing the petitioner by the Central Government while granting approval to the proposal sent by the State Government as a part of procedure laid down in Section 17-A(2) of the Act, it does not envisage hearing of third party and particularly such party has no vested legal right. Apart from that there was no lis and the process of approval was not adjudicatory as while taking a decision, the Central Government was not required to resolve any dispute. Thus, hearing of the petitioner by respondent No.1 cannot arise, therefore, this contention of the learned counsel for the petitioner cannot be accepted. Therefore, approval granted by the respondent No.1 on 31.8.2006 is also just, proper and in accordance with law.

The contention about raising objection before the respondent No.5-Gujarat Pollution Control Board was at the behest of private parties so as to deprive the petitioner from getting the mining lease executed within time, is misconceived inasmuch as the respondent No.5 was within its right to raise legitimate objections before GPCB in view of reservation of Manganese Ore to be developed exclusively by the respondent No.5.

In the above backdrop of findings, there is no scope for judicial review of the decision based on the policy framed by the respondent No.2 impugned in this petition even after applying parameters as laid down by the Apex Court in case of Delhi Development Authority N.D. v. Joint Action Committee, Allottee of SFS Flats reported in 2008 AIR SCW 762.

In the above decision, Their Lordships have held that policy decisions are not beyond the pale of judicial review and broadly narrated grounds for judicial review of a policy decision. In paras 59 and 60 the Apex Court held as under:-

?S59. An executive order termed as a policy decision is not beyond the pale of judicial review. Whereas, the superior Courts may not interfere with the nitty gritties of the policy, or substitute one by the other but it will not be correct to contend that the Court shall like its judicial hands off, when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior Court would not be without jurisdiction as ti is subject to judicial review.

60. Broadly, a policy decision is subject to judicial review on the following grounds :

(a) if it is unconstitutional;

(b) if it is dehors the provisions of the Act and the Regulations;

(c) if the delegate has acted beyond its power of delegation;

(d) if the executive policy is contrary to the statutory or a larger policy??.

The impugned decisions and notifications are based on legitimate deliberations and discussions in the meeting held under the Chairmanship of the Hon'ble Chief Minister of the State to clarify and provide development of Manganese Ore pursuant to the Mining Policy, 2003 of the State which was framed after scientific and rational study of mineral sources for development and regulation of such minerals and sustainable growth and development of industries based on such minerals with a view to generate revenue and employment in the State of Gujarat after following procedure as envisaged under Section 17-A(2) of the Act which need not deserve any interference by this Court in exercise of power under Article 226 of the Constitution of India.

Even on the perusal of the decisions of the Apex Court on the subject matter, it is clear that in the case of Pallava Granite Industries (supra), the Apex Court dismissed the Special Leave Appeals on the ground that no mining lease was granted to the appellants and there was no crystallization of any rights in favour of the appellants and therefore, there was no bar for reserving the land for exploitation to public sector corporation and undertaking. In the above case, even the decision to grant mining lease in favour of the appellant was taken and the Apex Court held that such a grant cannot fetter or hamper future executive action/decision to revoke the grant in public interest. It was further held that when the State Government detected an important source of revenue in the form of granite reserve and even at one point of time the State Government decided to exploit the granite through private parties, later on with globalization the State Government decided to go for global tenders since the above course of action was open to the Government, but ultimately it was decided to exploit the granite through State of Andhra Pradesh Mineral Development Corporation, it was found that earlier decision of exploitation of granite through private parties cannot come in the way of decision of the State Government to exploit and develop reserved area of granite through APMDC.

In the case of Indian Charge Chrome Ltd.(supra), the Apex Court held that power under Section 17-A(2) of the State Government to reserve an area for undertaking mining operation through a Government company or corporation owned or controlled by it, since it is not limited for the purpose of conservation but it confers powers for reservation also and reconsideration of earlier decision of the State Government to grant mining lease to private party and subsequently in favour of the State Mining Corporation, judicial review in exercise of power under Article 226 of the Constitution of India being a policy decision is not available. In paras 26 and 27 of the above decision, the Apex Court has observed as under :-

?S26. We find some merit in the contention of the learned counsel for the State and OMC that the fact that the ore is required by many industries in the country other than the applicants for leases for captive mining and if the whole area is divided and given for private exploitation, there may be difficulty in ensuring equitable distribution of the ore was a relevant consideration for the State Government in making the recommendation under Section 17-A(2) of the Act. We cannot certainly say that this aspect is not a relevant circumstance. Anyway, as we have indicated, it is not for us to pronounce on it at this stage and that would also be one of the aspects to be considered by the Central Government when it considers the request of the State Government for approval under Section 17-A(2) of the Act.

27. In our view, the High Court was not right in holding that what had transpired thus far, or the directions of this Court earlier made, precluded the State Government from exercising the power and seeking approval in terms of Section 17-A(2) of the Act. As we have held, the State Government could exercise that power until a grant is actually made since it is an overriding power. The taking up of a particular stand earlier, cannot also preclude the exercise of that power.

Whether it has laid itself open to claims for damages by its prior actions is a different question and that cannot control the exercise of the power under Section 17-A of the Act??.

Reliance placed by learned Additional Advocate General for respondent No.2 on various decisions on the aspect of legitimate expectation and its applicability in the matter of change in Government policy in public interest and cases of P.T.R. Exports (Madras) Pvt. Ltd. (supra) and International Trading Co. (supra) are squarely applicable to the facts of the present case and the respondents herein have successfully able to place relevant facts before this Court about public interest involved in the decision making process and the decision of the respondents in reserving Development of Manganese Ore, a major mineral in fovour of respondent No.5.

What transpires after perusal of the record that no promise was ever given by the respondents as claimed by the petitioner to supply Manganese Ore continuously to the petitioner. Therefore, contentions about legitimate expectation and estoppal deserve to be rejected.

The decisions relied on by the learned counsel for the petitioner in support of his submissions about rejection of representation without assigning any reasons, cannot be made applicable in the facts of the present case inasmuch as rejection of the representation by an order dated 21.3.2007 was based on a careful consideration of various aspects of economic and social implications of the decision and full opportunity was provided to the petitioner to represent his case and opportunity of hearing was also granted to the petitioner. In the circumstances, it cannot be said that the impugned order dated 21.3.2007 is in any manner unjust or unreasonable. Even otherwise also, on earlier occasion the petition was withdrawn simply with a view to apprise the State Government with certain aspects in spite of the fact that plea was raised by the State Government that the petitioner had no right whatsoever to challenge the decision.

There cannot be any different opinion about what the Apex Court has referred to the Authoritative work of the book on Administrative Law by Professor Wade about requirement of assigning reasons while exercising powers by the authority so as to rule out arbitrariness and unreasonableness which are anti-thesis of equality as guaranteed under Article 14 of the Constitution of India. But, in the present case, even the State Government while rejecting the representation of the petitioner has taken care of requirement of Manganese Ore for captive consumption by the petitioner and directed him to approach respondent No.5 for suitable negotiations, but unfortunately without even making an attempt, the petitioner has directly approached this Court and even not explored that possibility in the interest of his business.

The decision of the Apex Court in the case of Tata Cellular(supra) on the contrary helps the respondents. In para 113, Apex Court after considering various decisions found that if the exercise of powers by the authority is fair and without discrimination, it can enter into a contract. Para 113 of the said decision reads as under :-

?S113.The principles deducible from the above are :

(1) The modern trend points to judicial restraint in administrative action (2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made.

(3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be liable.

(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.

Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tires. More often than not, such decisions are made qualitatively by experts.

(5) The government must have freedom of contract. In other words, a fair-play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.

(6) Quashing decision may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.??

If the above principles are perused carefully, no unreasonableness or arbitrariness is reflected in the decision of the respondent No.2 and issuance of subsequent notification by which certain areas are reserved for development of Manganese Ore in favour of the GMDC-respondent No.5. In the case of Balco (supra), in para 50, the Apex Court held as under :-

?S50. The aforesaid observations, in our opinion, enunciates the legal position correctly. The policies of the government ought not to remain static. With the change in economic climate, the wisdom and the manner for the government to run commercial ventures may require reconsideration. What may have been in the public interest at a point of time may no longer be so. The Government has taken a policy decision that it is in public interest to disinvest in BALCO. An elaborate process has been undergone and majority shares sold. It cannot be said that public funds have been frittered away. In this process, the change in the character of the company cannot be validly impugned. While it was a policy decision to start BALCO as a company owned by the Government, it is as a change of policy that disinvestment has now taken place. If the initial decision could not be validly challenged on the same parity or reasoning, the decision to disinvest also cannot be impugned without showing that it is against any law or mala fide??.

The decision of H.G.Rangangoud (supra) pressed into service by learned counsel for the petitioner. However, the same is pertaining to powers exercised by Section 17-A(1A) and not under Section 17-A(2) of the Act and otherwise also facts of the present case are different than the case in hand and therefore, the same cannot be pressed into service. In the case of H.G.Rangangoud (supra) the Apex Court held that even under Section 17-A(1A) reservation can only be in respect of free land available for reservation and not in respect of land which had already been held on lease and it is further observed that it will become a land or area held or leased after valid execution of lease in favour of chosen person by State Government and not till that point of time.

Thus, none of the decisions relied on by the learned counsel for the petitioner is helpful to him.

However, while rejecting the representation of the petitioner, the State Government has directed the petitioner to approach respondent No.5-GMDC for adequate and regular supply of Manganese Ore for captive consumption so that the petitioner may not face any undue hardship.

As stated by learned counsels for respondents Nos.2 and 5, the above proposal of the State Government will continue to hold good and in case if the petitioner approaches for his current as well as future requirements of Manganese Ore for captive consumption of his unit, such proposal shall be considered by the respondent No.5 considering the overall facts and circumstances of such requirements and may be dealt with the said proposal accordingly.

It is to be noted that so far as the petitioners of Special Civil Application Nos.16150 and 21969 of 2007 are concerned, they are individuals engaged in the mineral business since last 15 years and have been dealing in Manganese Ore, a major mineral, and vide proposal dated 27.12.2001, the State Government granted mining lease to the petitioners for a period of 30 years on an area of 40 hectares respectively of village Pani in Baroda district in exercise of its powers conferred under Section 5(1) of the Act. The said proposal was approved by respondent No.1 on 8.3.2002 and on the basis of the above order, a conditional order for grant of lease was issued on 27.12.2002. The petitioners in both these petitions have challenged the impugned orders, notifications issued by respondent No.1 and respondent No.2 and prayers are similar to that of Special Civil Application No.14135 of 2007 and other facts are also almost identical except the above stated facts in this paragraph.

In view of the above discussion, no case is made out by the petitioners that impugned notifications dated 21.4.2005 and 1.6.2007 are violative of Articles 14 and 19(1)(g) of the Constitution of India and at the same time even approval granted by respondent No.1 vide order dated 31.8.2006 and subsequent rejection of representation of the petitioner vide order dated 21.3.2007 also fail and all these Special Civil Applications are hereby dismissed. Rule issued in each petition stand discharged and interim relief granted in each petition stand vacated forthwith. Rule discharged. However, there shall be no order as to costs.

At this stage, learned counsel for the petitioners requested to stay this order for a period of four weeks.

Considering the peculiar facts and circumstances of the case, the request made by learned counsel for the petitioners is rejected.

(ANANT S. DAVE, J.) *pvv Top

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Gujarat High Court