Madhya Pradesh High Court
Mangalam Cement Ltd. vs Secretary The State Of Madhya Pradesh on 22 February, 2012
1
IN THE HIGH COURT MADHYA PRADESH : AT JABALPUR.
Writ Petition No.9006/2010
Manglam Cements Ltd.
Vs.
State of Madhya Pradesh & others
PRESENT :: HON'BLE JUSTICE SHRI K.K. TRIVEDI.
Shri Anup G. Choudhary, learned Senior counsel assisted
by Shri Gaurav Mitra, Advocate and Shri K.S. Wadhwa,
learned counsel for the petitioner.
Shri P.K. Kaurav, learned Dy. Advocate General for
respondent No.1.
None for the respondent No.2.
Shri Kishore Shrivastava, learned senior counsel assisted
by Shri Vikas Goyal, learned counsel for the respondent
No.3.
ORDER
(22.02.2012) 1: The present petition has been filed by the petitioner seeking to invoke extraordinary jurisdiction of Article 226 of the Constitution of India, in the matter of passing of an order on 9.3.2010 by the revisional authority of Central Government, dismissing the revision of the petitioner as also the order dated 11.9.2008 passed by the respondent No.1 State of Madhya Pradesh, granting mining lease for a period of 30 years to the respondent No.3 at Village Badhretta, Mahva, Saipura, Bhilampur, Uchad, Shahadpur, Itora, and Hirawali of District 2 Morena (hereinafter referred to as concerned area for short). It is contended that such a benefit of grant of mining lease to the respondent No.3 is in contravention to the provisions of Section 11 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as the Act for brevity) as also the Mineral Concession Rules, 1960 (hereinafter referred to as the Rules for short) and as such, the same is bad in law. It is contended that though elaborate revision was filed, raising legal grounds, but the revisional authority has not considered all these legal grounds, settled principles of law and has dismissed the revision, therefore, the writ petition was required to be filed.
2: It is contended that the petitioner is a Company of B.K. Birla Group, which is a consortium of various companies, all of whom have been engaged in the cement processing, manufacturing and marketing activities across the country for the last 50 years. The petitioner Company itself has remained engaged in cement production and processing since its inception in the year 1978. The petitioner Company made an application for grant of prospecting licence on 8.12.2007 in respect of the land of concerned area. Another application was made by the petitioner for grant of mining lease over the said concerned area on 13.6.2008. There were other applicants also and all such applications were considered and hearing was held on 11.7.2008 by the respondent No.1. The representative of the petitioner did appear on the date of hearing and submitted a written statement as also orally submitted before the Minister of the Department that the petitioner has signed a Memorandum of Understanding (hereinafter referred to as MOU for short) with the State Government for the purposes of establishing a cement plant at Kailaras, District Morena. Presently the annual turn over of cement production of the group company of petitioner was 13.65 million ton. The annual turn over was Rs.7370 crore and the annual turn over of the petitioner Company for the year 2007-08 was Rs.596 crore and dividend was Rs.157.55. The Company has proposed to establish a cement plant with the 3 annual production capacity of 1.6 million ton and a proposal is made for investment of Rs.675-700 crore. The establishment of such a cement plant will provide directly or indirectly employment to about 2500 persons and the Government will get Rs.174 crore per annum as royalty and other taxes. This fact was also brought to the notice that the petitioner Company has established a cement plant in the Rajasthan State, having annual production capacity of 1.6 million ton and in the said State a mining lease for lime stone was sanctioned on an area of 895 hectare. The group company of petitioner was running a cement plant at Maihar, District Satna, which has the annual production capacity of 3.80 million ton. In other States also, the group company of the petitioner has established the cement plant. Therefore, the preference should be given for grant of lease to the petitioner.
3: It is contended by the petitioner that despite these facts and despite the fact that the petitioner has a preferential right, because of the fact that the application made by the petitioner was prior on date than the application submitted by other competitors yet, the application of the petitioner was not considered and the benefit has been extended to the respondent No.3. Therefore, such an act of the respondents was violative of the statutory provisions of the Act and the Rules. The revision petition was filed indicating all these faults on the part of the State respondent, but since the revision petition has been dismissed, the writ petition is required to be filed. Thus, it is contended that the orders impugned are bad in law and are liable to be quashed.
4: In response to the notice of this writ petition, the respondents have filed their return. The respondent No.1 opposing the writ petition has submitted that appropriate action was taken after receipt of the application of all applicants, due opportunity of hearing was granted to all applicants and in terms of the provisions of Rules since the respondent No.3 4 Company, being the new one, was to be given the preference, the State Government has considered the application of the respondent No.3 and has granted the mining lease to the respondent No.3. It is contended that various factors were taken into consideration, certain statements made by the petitioner were examined and after being fully satisfied with the application submitted by the respondent No.3, assessing the comparative merits, the order was rightly passed in favour of the respondent No.3, granting the mining lease.
5: The respondent No.3 filed an exhaustive return along with several documents and has very categorically contended that the State of Madhya Pradesh issued a Notification on 3.9.1993 opening the area for mining lease of lime stone in the concerned area. On 8.12.2007, the petitioner moved an application for grant of prospecting licence over an area of 1398.42 hectare in the concerned area. The respondent No.3 filed applications on 24.12.2007 and 26.2.2008 for grant of mining lease. The respondent No.3 entered into a MOU with the State Government on 16.2.2008 for the purposes of establishing a 2.5 metric ton cement industry and power plant in District Morena with an investment of Rs.1210 crore. The mega project status of respondent No.3 was duly approved on 8.4.2008. The petitioner entered into a MOU with the State Government on 11.4.2008 i.e. much after the MOU executed by the respondent No.3 with the State Government. On 13.6.2008, the petitioner filed an application for grant of mining lease in the concerned area. The earlier application submitted by the petitioner was for prospecting licence. Thus, the application submitted by the respondent No.3 were to be treated prior to the application of the petitioner, for the purposes of granting mining lease. It is categorically submitted by the respondent No.3 in the return that as per the provisions of Section 11(2) of the Act in case the area is not notified, the preference is to be given on the basis of date of application made for grant of reconnaissance permit, or prospecting licence or mining lease. In any case, if the 5 Notification is issued and the area is declared open, there would be no application of sub-section (2) of Section 11 of the Act and preference is not to be given on the basis of making of the application. It is further contended that series of the events indicate that the petitioner was not very much serious about grant of mining lease and, as such, its application was rightly rejected. Certain preliminary objections have also been raised by the respondent No.3 with respect to the maintainability of the writ petition contending that the petition has been filed by a person who is not authorised to file the present writ petition on behalf of the petitioner, to cause prejudice against the respondent No.3 though the respondent No.3 is registered company, but it has been shown as a proprietorship concern and that the petitioner has not come with the clean hands before this Court. It is further contended that since a mining lease has been executed in favour of the respondent No.3 by the State Government on 3.7.2010 and has been duly registered on 3.7.2010 itself, the writ petition is liable to be dismissed.
6: Shri Anup Choudhary, learned senior counsel for the petitioner contended that once the area is declared open, the provisions of Section 11 become applicable automatically. It is contended by learned senior counsel that if the area is not notified in the official gazette for grant of reconnaissance permit, or prospecting licence or mining lease as the case may be and two or more persons have applied for reconnaissance permit, or prospecting licence or mining lease in respect of any land in such area, the applicant whose application was received earlier, shall have the preferential right to be considered for grant of reconnaissance permit, or prospecting licence or mining lease as the case may be over the applicant whose application was received later. It is further contended by learned senior counsel that if a Notification is issued when the area is available for grant of reconnaissance permit, or prospecting licence or mining lease, inviting the application for grant of such reconnaissance permit, or prospecting licence or 6 mining lease, all the applications so received during the period specified in the Notification and the application which had been received prior to the publication of such Notification in respect of such land in area and which have not been disposed of, shall be deemed to have been received on the same day for the purposes of assigning priority under sub-section (2) of Section 11 of the Act. It is also contended by learned senior counsel for the petitioner that if on one day, all applications are received, the State Government is still free to consider the application for grant of reconnaissance permit, or prospecting licence or mining lease to any of the applicants as it may deem fit, on the grounds which have been specifically specified in sub-section (3) of Section 11 of the Act.
7: Learned senior counsel contended that the matter specified in sub-section (3) of Section 11 of the Act are any special knowledge or experience in mining operations, the financial resources, the nature and quality of technical staff employed, the investment proposed by the applicant concerned in the industry or the mines or such other matters as the case may be prescribed. Drawing attention of this Court to the provisions of Rules, it is said that preferential conditions as have been laid down under the Rules prescribe that beside the matters mentioned in Clauses (a) to (d) of sub-section (3) of Section 11 of the Act, the State Government shall also consider the end use of mineral by the applicant concerned. Drawing attention of this Court to the guidelines issued by the Central Government in exercise of its power placed on record as Annx. P/5, issued on 24.6.2009 and 9.2.2010, learned senior counsel contended that step by step applications are required to be considered. After excluding the cases under sub-section (1) of Section 11 of the Act, the applications are to be considered under sub-section (2) of Section 11 of the Act which deals with different type of contingencies such as; one where the area is notified and the other one where there is non-notified area. It is made clear by the Central Government by prescribing specific 7 guidelines at paragraph 8.1 that for notified areas, the principle is 'capacity and capability' and provisions of Section 11(4) of the Act will be applicable immediately which is required to be read harmoniously with the provisions of sub-section (2) of Section 11 of the Act and State Government is required to consider the applications in such a manner. The only exception is power of State Government to grant preference to any applicant for the special reasons which are required to be recorded in accordance to the provisions of sub-section (5) of Section 11 of the Act. Drawing again the attention of this Court to the guidelines, it is contended by learned senior counsel that in case where the area has been notified for the purposes of grant of mineral concession, then in accordance to the provisions of sub-section (2) of Section 11 and sub-section (4) of Section 11 of the Act, the State Government should consider all the eligible applicants and such applicant as it deem fit in terms of the provisions of Section 11(3) of the Act. Thus, it is contended that in fact a comparative statement is required to be prepared for the purposes of assessing the comparative merits of two applicants in terms of sub-section (3) of Section 11 of the Act.
8: Learned senior counsel for the petitioner further emphatically contended that with regard to maintaining transparency in the selection, a criteria is required to be adopted in appropriate manner. The Central Government has categorically provided that the 'Special Reasons' should be such that no favour is shown to any particular person or applicant and it should be reflected from the reading of the same. Special reasons could be those which form part of the State Mineral Policy or other duly notified policy document, so that the 'special reasons' are objectively founded and are not perceived as being formulated to suit requirements on a case by case basis. It is contended that these guidelines are to be honoured seriously because ultimately, the Central Government is the competent authority to approve the grant of mining lease to anybody under the Rules. Not only this, as is categorically provided in the 8 guidelines, such action of the State Government should not be derogative to the National Mineral Policy. Drawing attention of this Court to various factors, and heavily putting reliance on the law laid down by the Apex Court in the case of Sandur Manganese and Iron Ores Limited V. State of Karnataka and others [(2010) 13 SCC 1], learned senior counsel for the petitioner contended that if comparative merits of the petitioner with the respondent No.3 are taken into account, it will be clear that the respondent No.3 was favoured on unsustainable ground or reasons. Drawing attention of this Court to the findings recorded in this respect in the order impugned at para 3, learned senior counsel for the petitioner contended that the statements made before the Minister concerned with respect to the specification prescribed by the respondent No.3 were not such that the respondent No.3 was to be given a favour. Thus, it was not a valid reasons, but since the same was considered and mining lease was granted to the respondent No.3, giving benefit of preference under Section 11(3) and 11(5) of the Act, the said order was per se illegal. It is, vehemently, contended that when these grounds were raised in the revision before the respondent No.2, though all such grounds were noted, but no definite finding has been given and, therefore, the revision of the petitioner was also not decided in appropriate manner. It is contended by the learned senior counsel that the order impugned is, thus, bad in law and is liable to be quashed.
9: Learned Deputy Advocate General, appearing for the respondent-State, has supported the action of the State Government and has contended that all such material facts were taken into account. The petitioner was not required to be granted the benefit of preference under sub-section (2) of Section 11 of the Act as the area was notified. In case of notified area, since the preference is not available, all the applications were rightly considered in terms of the provisions of sub-section (4) of Section 11 of the Act. Thus, it is contended that no wrong has been committed by the respondent-State.
910 : Shri Kishore Shrivastava, learned senior counsel, appearing for respondent No.3, had read out the entire provisions of sub- section (2) of Section 11 of the Act once again and has categorically contended that priviso to sub-section (2) of Section 11 of the Act are to be read only if preference under sub-section (2) of Section 11 of the Act is required to be granted. Reading opening paragraphs of the order impugned drawing the attention of this Court on the Notification issued by the respondent-State, it is contended by learned senior counsel for the respondent No.3 that since the area was notified, that the same was an open area and, therefore, there was no application of Section 11(2) of Act and no prefernece was to be given under sub-section (2) of Section 11 of the Act. Reading sub-section (3) of Section 11 of the Act, learned senior counsel for the respondent No.3, contended that the said provisions would be applicable only, if a preference is required to be given under sub-section (2) of Section 11 of the Act. There is no application of sub-section (3) of Section 11 of the Act, in case there is no application of sub-section (2) of Section 11 of the Act. In such circumstances, only thing required to be done was compliance of provisions of sub-section (4) and (5) of Section 11 of the Act, which according to learned senior counsel for the respondent No.3 has been done and, therefore, there was no case made out to interfere in the order of the State Government. It is further pointed out that these facts have been found correct by the revisional authority and, therefore, giving specific finding, elaborately considering the pleas raised by the petitioner and respondents, the revisional authority has dismissed the revision of the petitioner. Learned senior counsel appearing for the respondent No.3 has taken this Court to the stand taken by the petitioner in the revision filed before the revisional authority and the grounds taken therein and has also referred to para 2 of the impugned order passed by the State Government, contending that the statements as have been made before the competent authority of the State were not reflecting from the application 10 made by the petitioner before the State Government. It is also contended that while submitting a written brief, the petitioner restricted its claim only for grant of prospecting licence as in the written brief itself, it was said that the first application for prospecting licence was submitted on 18.12.2007. The petitioner was trying to take advantage of such application, because that application alone was prior to the application made by the respondent No.3. Specifically taking to this Court to the request made by the petitioner's representative at the time of hearing, it has been pointed out that the oral request as also the request in writing given by the petitioner was for grant of prospecting licence and not that of mining lease. In such a case, since it was already found by the State Government that the reports with respect to the availability of the minerals were given by the competent authority and only a mining lease was required to be granted as no prospecting licence for the availability of the mineral was necessary, rightly the application of the petitioner was rejected. The petitioner has never pressed the application for grant of mining lease and, as such, it was deemed that there was no application made by the petitioner for grant of mining lease. In such circumstances, the proper consideration was done and the order was passed in favour of the respondent No.3.
11 : It is contended by learned senior counsel for the respondent No.3 that since the petitioner Company is registered under the Indian Companies Act, it emerges as a juristic person and can be represented in such a manner as prescribed. Under Section 48 of the Companies Act, 1956 (hereinafter referred to as the Act of 1956 for short), a Company is empowered to delegate its power to any person either generally or in respect of any specified matters as its attorney to execute deeds. Sub- section (2) of Section 48 of the Act of 1956 specifically prescribes that if an attorney is delegated the power on behalf of the Company and if he executes any such document, the same shall be binding on the Company and have the same 11 effect as if it were executed under its common seal. The representative of the petitioner was present before the State Government at the time of hearing and the said representative has submitted a written submission on behalf of the petitioner. Thus, at this stage, it cannot be said that the petitioner Company was not willing to prosecute its application for grant of prospecting licence only but was intending to obtain a mining lease for which a separate application was made. Relying in the case of Heavy Engineering Mazdoor Union V.State of Bihar and others (AIR 1970 SC 82), it has been contended by learned senior counsel for the respondent No.3 that the petitioner Company was a juristic person and was thus represented in the aforesaid manner. All acts done by the representative of the petitioner were to be treated as if the same were done by the petitioner. There were lacunas laid down by the Company in making the submissions before the State Government which have been considered. It is further submitted by learned senior counsel for the respondent No.3 that the respondent No.3 is also a Company registered under the Act of 1956, it has not been sued in the manner it should have been and it has been described as a proprietorship Company though these facts were well within the knowledge of the petitioner when the writ petition was being filed. Since the respondent No.3 has not been sued in proper manner in the writ petition, the petition is liable to be dismissed. It is further contended that lease was executed in favour of the respondent No.3 pursuance to the impugned order passed by the State Government and the said fact that lease has already been registered and an agreement has already been executed, was brought to the notice of the petitioner while the replies were submitted in the revision pending before the revisional authority of the Central Government, but deliberately such orders are not challenged in the writ petition. It is contended that since the order impugned has already been put in execution, the consequential actions were already taken and completed, it was necessary on the part of the petitioner to challenge such orders 12 also in the writ petition. It is contended that since there is no such challenge to the lease granted to the petitioner, duly executed and registered, the writ petition is liable to be dismissed. It is further contended that the Apex Court has considered the rights available under Article 39 of the Constitution of India and has held in the case of Tata Iron & Steel Co. Ltd V. Union of India and another [(1996) 9 SCC 709], that provisions of Article 39(b) of the Constitution of India, prescribes that the ownership and control of the material resources of the community are to be so distributed as best to subserve the common good. If this is done by passing appropriate orders, it cannot be said that right of any person is violated. Learned senior counsel for the respondent No.3 has contended that since this particular aspect was taken into consideration by the State Government and the mining lease was granted to the respondent No.3, it cannot be said that any right of the petitioner is violated. Learned senior counsel for the respondent No.3 has firmly contended that since the circular on which heavy reliance has been placed by learned counsel for the petitioner was issued subsequent to the order passed by the State Government granting mining lease to the respondent No.3, the circular has no force or application in such a matter. It is further contended that when specific provisions are made under the Act and the Rules, violation of any such guidelines prescribed by the Central Government will not be a ground for claiming any relief in such a writ petition. Thus, it is contended that the entire writ petition is misconceived and is liable to be dismissed.
12 : Heard learned counsel for the parties at length and perused the record.
13 : The first and foremost question as has been raised by the petitioner is, whether any preferential right was available to the petitioner to claim grant of mining lease or prospecting licence over the concerned area or not ? Section 11 of the Act prescribes grant of preferential right to certain persons. For the 13 purposes of better understanding the said provisions, entire Section is reproduced for the purposes of convenience :-
"11. Preferential right of certain persons.-
(1) where a reconnaissance permit or prospecting licence has been granted in respect of any land, the permit holder or the licensee shall have a preferential right for obtaining a prospecting licence or mining lease, as the case may be, in respect of that land over any other person :
Provided that the State Government is satisfied that the permit holder or the licensee, as the case may be, -
(a) has undertaken reconnaissance, operations or prospecting operations, as the case may be, to establish mineral resources in such land;
(b) has not committed any breach of the terms and conditions of the reconnaissance permit or the prospecting licence;
(c ) has not become ineligible under the provisions of this Act; and
(d) has not failed to apply for grant of prospecting licence or mining lease, as the case may be, within three months after the expiry of reconnaissance permit or prospecting licence, as the case may be, or within such further period, as may be extended by the said Government.
(2) Subject to the provisions of sub-section (1), where the State Government has not notified in the Official Gazette the area for grant of reconnaissance permit or prospecting licence or mining lease, as the case may be, and two or more persons have applied for a reconnaissance permit, prospecting licence or a mining lease in respect of any land in such area, the applicant whose application was received earlier, shall have the preferential right to be considered for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, over the applicant whose application was received later; Provided that where an area is available for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, and the State Government has invited applications by notification in the Official Gazette for grant of such permit, licence or lease, all the applications received during the period specified in such notification and the applications which had been received prior to the publication of such notification in respect of the lands within such area and had not been disposed of, shall be deemed to have been received on the same day for the purposes of assigning priority under this sub-section :
14Provided further that where any such applications are received on the same day, the State Government, after taking into consideration the matter specified in sub-section (3), may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be, to such one of the applicants as it may deem fit.
(3) The matters referred to in sub-section (2) are the following :-
(a) any special knowledge of, or experience in, reconnaissance operations, prospecting operations or mining operations, as the case may be, possessed by the applicant;
(b) the financial resources of the applicant;
(c) the nature and quality of the technical staff employed or to be employed by the applicant;
(d) the investment which the applicant proposes to make in the mines and in the industry based on the minerals;
(e) such other matters as may be prescribed;
(4) Subject to the provisions of sub-section (1), where the State Government notifies in the Official Gazette an area for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, all the applications received during the period as specified in such notification, which shall not be less than thirty days, shall be considered simultaneously as if all such applications have been received on the same day and the State Government after taking into consideration the matters specified in sub-section (3), may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be, to such one of the applicants as it may deem fit.
(5) Notwithstanding anything contained in sub-
section (2), but subject to the provisions of sub-
section (1), the State Government may, for any special reasons to be recorded, grant a reconnaissance permit, prospecting licence or mining lease, as the case may be, to an applicant whose application was received later in preference to an applicant whose application was received earlier :
Provided that in respect of minerals specified in the First Schedule, prior approval of the Central Government shall be obtained before passing any order under this sub-section."
There is yet another provision made under the Rules for the purposes of grant of benefit of preference. Rule 35 of the Rules prescribes that where two or more persons have applied 15 for a reconnaissance permit, or a prospecting licence or a mining lease in respect of the same land, and the State Government is required to consider such application for the purposes of sub-section (2) of Section 11 of the Act beside consideration and decision on such application on the matter mentioned in Clauses (a) to (d) of sub-section (3) of Section 11 of the Act, the State Government shall also consider the end use of mineral by the applicant if any preference is to be given. Thus, it is clear from the language used in the Act and the Rules itself that the right to claim preference is available only if the area is not notified in the Official Gazette for the purposes of grant of reconnaissance permit, prospecting licence or mining lease as the case may be. Undisputedly, the Notification in respect of the area was already issued. Not only the fact is mentioned in the order impugned passed by the State Government, but the Notification itself has been placed on record as Annx.P/17, by the petitioner along with the application for taking documents on record moved on 12.7.2010 vide I.A.No.7888/2010. A perusal of this will make it clear that the area in dispute was declared open, available for grant of mining lease. Thus, there was no application of sub-section (2) of Section 11 of the Act in the matter of grant of preference to any of the applicant. It is not that the Notification was subsequently issued after inviting the applications. Therefore, the proviso to sub-section (2) of Section 11 of the Act have no application at all. For the purposes of grant of preference, the criteria required to be taken are prescribed in sub-section (3) of Section 11 of the Act. As the opening line of the sub-section (3) of Section 11 of the Act, specifically says that the matter referred to in sub- section (2) are following that means only when the grant of preference is to be considered under sub-section (2) of Section 11, the matters referred to in sub-section (3) of Section 11 of the Act are to be considered. Therefore, it is to be seen that in case sub-section (2) of Section 11 itself is not applicable whether the matters referred to in sub-section (3) of Section 11 of the Act are required to be considered or not.16
14 : Entire Scheme of grant of preference is prescribed under Section 11 of the Act by the Parliament by making the Act. The contingencies are fixed, one where the application for grant of reconnaissance permit or prospecting licence have already been considered and the reconnaissance permit or prospecting licence has already been granted, then such reconnaissance permit or prospecting licence holders have the preferential right for obtaining a prospecting licence or mining lease as the case may be in respect of that land over any other person. Such reconnaissance permit or prospecting licence holders may not be entitled to grant of such preference if the contingencies prescribed in the proviso added in the said sub-section (1) of Section 11 of the Act are attracted or applicable. The other contingency is that when there is non-notified area for which the application is made by two or more persons for grant of reconnaissance permit, prospecting licence or mining lease, then the preference is to be given on the basis of the date of making of the application. In such contingency, the grant of preference is to be considered on the basis of matters referred to in sub-section (3) of Section 11 of the Act read with Rule 35 of the Rules. The third contingency is that when the preference is to be given in sub-section (1) of Section 11 of the Act, then there is application of sub-section (4) of Section 11 of the Act and applications are to be considered in that manner as is prescribed. The last contingency which is prescribed in sub- section (5) of Section 11 of the Act is that in all circumstances, whether under sub-section (2) or Section (1) of Section 11 of the Act, the Government has a right to grant reconnaissance permit, prospecting licence or mining lease to any person ignoring the preferential right of any other applicant, but the only condition which is to be fulfilled is that there should be some special reasons and the said reasons should be recorded in writing.
15 : This is what has been considered by the Apex Court in the case of Sandur Manganese and Iron Ores Ltd (supra). No 17 other interpretation of the provisions of Section 11 of the Act is possible. In light of this, if it is examined whether there was any claim made by the petitioner for grant of mining lease in the concerned area prior to making of application by respondent No.3 or not, it is abundantly clear that no such application was made by the petitioner for grant of mining lease. A prospecting licence was being claimed by the petitioner by making the application and the State Government had already considered such an aspect had and found that where the prospecting has already been completed availability of the mineral has already been found, grant of a prospecting licence was of no use rather it would have been a waste of time. The application of the respondent No.3 was prior to the application of petitioner for grant of mining lease and, therefore, it was rightly considered. Further, it is seen that there were lacunas created by the petitioner in making the submissions. The application submitted by the petitioner was containing different aspects which were not tallying with the statements made by the petitioner in its submission. The MOU was also executed with the respondent No.3 prior to the MOU executed in favour of the petitioner by the State Government. Taking into account the fact that the petitioner was in fact a group of B.K. Birla Group Companies and and the said group company was granted leases in different parts, it was held by the State Government that the petitioner was not to be granted the benefit of preference if at all any was available. In light of these specific findings which have been recoded in the order impugned, if the State Government was of the opinion that the mining lease should be granted to the respondent No.3, no fault can be found in such findings.
16 : The most important aspect is whether the petitioner was ever sincere about obtaining a lease or not. Undisputedly, the claims were made by the petitioner and as has been pointed out written submissions through an authorised representative were filed before the State Government. In the written submission, it was forcefully said that the petitioner was claiming a 18 prospecting licence on the basis of application dated 18.12.2007. The findings have categorically been recorded by the State Government that the prospecting in the concerned area for the availability of the minerals was already done and such reports were placed on record. The availability of the mineral was also proved by the reports of the Directorate of Geology and Mining way back in the year 1978-82. Thus, the State Government was right in saying that no application for grant of prospecting licence was to be considered in the said concerned area. The petitioner itself has admitted in proceedings that detailed prospecting in the area has been done by the Department of Geology and Mining. The petitioner itself has enclosed a brief report regarding availability of the mineral in the concerned area issued by NCBM New Delhi along with its application for grant of mining lease. Since the petitioner had never pressed the application for mining lease, in its written submission, the petitioner was claiming only the prospecting licence, if the application of the petitioner was rejected and the mining lease was granted to the respondent No.3, in the considered opinion of this Court, no fault was committed by the State Government. Even, when this fact was brought to the notice of the petitioner by filing a written submission in response to the revision filed before the revisional authority of the Central Government by the State Government, it was never contended that the petitioner was not pressing only the prospecting licence application, but was also pressing the application for mining lease which was not rightly considered. This too has not been said in the writ petition. In such circumstances, it cannot be said that the revisional authority of the Central Government also committed an error in considering the revision application of the petitioner.
17 : Now lastly, it is to be seen whether any effective relief can be granted to the petitioner or not. As has been found that the application of the petitioner for prospecting licence was not to be considered in such circumstances, there was no question of 19 granting preference to the petitioner. The respondent State was required to assign the reasons only for the purposes of grant of mining lease to the respondent No.3 in terms of the provisions of Rule 11(5) of the Rules. The reasons have been ascertained by the State Government from the documentary evidence, the submissions made by the petitioner and the respondent and the reasons have been recorded in this respect in the order impugned. Therefore, it cannot be said that any favouritism was shown to the respondent No.3 by the State Government. The order granting mining lease was not only passed, but subsequently it has been executed also inasmuch as the lease has been granted and the same has been registered as well in favour of the respondent No.3. This being so, the relief as claimed in the writ petition cannot be granted to the petitioner.
18 : For the reasons aforesaid, the writ petition being bereft of any merit fails and is hereby dismissed. There shall be no order as to costs.
(K.K. TRIVEDI) JUDGE /02/2011 A.Praj.
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