Madras High Court
M/S.Tata Steel Limited vs M/S.V.V.Minerals Through Its on 26 September, 2008
Author: V. Ramasubramanian
Bench: V. Ramasubramanian
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:26/09/2008 CORAM THE HON'BLE MR.JUSTICE V. RAMASUBRAMANIAN C.R.P.(PD)(MD)No.1015 of 2008 and M.P.(MD) No.1 of 2008 M/s.Tata Steel Limited, represented by its Principal Officer, Titania Business Unit, Tirunelveli. ...Petitioner Vs. 1.M/s.V.V.Minerals through its Partner Mr.S.Vaikundarajan 2.The State of Tamil Nadu through the District Collector, Tirunelveli. 3.The Secretary to Government, Industries Department, Fort St. George, Chennai. 4.The Director of Geology and Mining, Guindy, Chennai. 5.The Assistant Director of Geology and Mining, Kokirakulam, Tirunelveli. 6.The District Collector, Tuticorin. 7.The Assistant Director of Geology and Mining Collecterate, Tuticorin. 8.The District Collector, Kanyakumari at Nagerkoil. 9.The Assistant Director of Geology and Mining Collecterate, Nagerkoil. ...Respondents PRAYER Petition filed under Article 227 of the Constitution of India against the order dated 18.3.2008 passed by the learned Principal District Judge, Tirunelveli in I.A.No.81 of 2007 in unregistered A.S. !For Petitioner ... Mr.N.R.Chandran, Senior Counsel for M/s.Murthi & Vasan ^For Respondent-1 ... Mr.S.Meenakshi Sundaram For Respondents-2to9... Mrs.V.Chellammal, Additional Govt.Pleader :ORDER
This Civil Revision Petition arises out of the dismissal by the lower appellate court, of an application filed by the petitioner herein, seeking leave to file an appeal against the judgment and decree of the trial Court in O.S.No.83 of 2005.
2. I have heard Mr.N.R.Chandran, learned Senior Counsel appearing for the petitioner, Mr.S.Meenakshi Sundaram, learned counsel appearing for the first respondent and Mrs.V.Chellammal, learned Additional Government Pleader, appearing for the respondents 2 to 9.
3. The brief facts leading to the present Civil Revision Petition are as follows:-
(a) The first respondent herein filed a suit in O.S.No.83 of 2005 against the respondents 2 to 9 herein, on the file of the Principal Sub Court, Tirunelveli, seeking (i) a direction to the respondents 2 to 9 herein to process their mining lease application, within a stipulated time in accordance with law and (ii) a decree of permanent injunction restraining the respondents 2 to 9 from processing the mining lease applications of third parties, in respect of the land belonging to the first respondent herein.
(b) During the pendency of the suit, the petitioner in this Civil Revision Petition, which is a third party to the suit, filed two applications in I.A.Nos.364 and 365 of 2005, seeking to implead themselves, both in the suit and in an application for interim injunction filed by the plaintiff in the suit.
(c) The applications for impleading were dismissed by the trial Court by an order dated 2.8.2005. Aggrieved by the said orders, the petitioner herein filed two revision petitions in CRP(PD)(MD) Nos.945 and 946 of 2005.
(d) Both the revision petitions were dismissed by this Court by an order dated 24.3.2006.
(e) The petitioner herein filed Special Leave Petitions in SLP (Civil) No.8926 of 2006. On 13.10.2006, the Supreme Court permitted the petitioner to withdraw the Special Leave Petitions without prejudice to their rights to take appropriate remedies.
(f) Subsequently, the suit filed by the first respondent herein was decreed as prayed for on 23.11.2006. The respondents 2 to 9 are said to have filed a First Appeal against the judgment and decree.
(g) Upon coming to know of the decree passed in favour of the first respondent by the trial Court, the petitioner herein filed an application in I.A.No.81 of 2007, seeking leave to file an independent appeal against the judgment and decree. But the lower Appellate Court dismissed the application on the ground that the attempt of the petitioner to get impleaded in the suit having already been rejected, the petitioner is not entitled for leave to file an appeal. It is against this order, that the petitioner is before this Court.
4. In the background of the above facts, the question that arises for consideration is as to whether the dismissal of the application filed by the petitioner to get impleaded in the suit, would disentitle them even to a leave to file an appeal against the judgment and decree of the trial Court.
5. The basis on which the petitioner earlier sought to get impleaded in the suit and now seeks to file an appeal is that, with a view to set up a Titanium project in the villages in Radhapuram Taluk, Tirunelveli District, the petitioner undertook a feasibility study and thereafter applied for a prospecting licence, from the Government of Tamil Nadu way back in the year 2000. On the basis of the said application, a Memorandum of Understanding was entered into between the petitioner and the Government of Tamil Nadu and a prospecting licence was granted. On the strength of the prospecting licence so granted in their favour, the petitioner was interested in opposing the prayer of the first respondent (plaintiff in the suit) for a permanent injunction to restrain the Government from granting a mining lease in favour of the third parties.
6. The attempt of the petitioner to get impleaded, was resisted by the first respondent, on the ground that there was no question of the petitioner getting a mining lease without the consent of the land owner and that when the first respondent is admittedly the land owner and had not granted any consent to the petitioner, the petitioner had no locus standi to oppose the prayer of the first respondent in respect of the lands owned by them. The first respondent also contended that even the Memorandum of Understanding had lapsed. Therefore the stand taken by the first respondent is that since the petitioner failed in its attempt to get impleaded in the suit, the plaintiff cannot be permitted to file an appeal against the judgment. In other words, the petitioner, who lost an attempt to get impleaded in the suit, cannot circumvent the order by getting leave to file an appeal, as the grant of leave to file an appeal would virtually amount to a review of the order dismissing the application for impleading.
7. It is true that the petitioner made an unsuccessful attempt to get impleaded in the suit. Their application for impleading was rejected by the trial Court and the order was also confirmed by this Court. However the petitioner appears to have obtained a small reprieve in the Supreme Court. In the appeal SLP (Civil) No.8926 of 2006 arising out of the dismissal of the impleading petitions, the Supreme Court passed the following order on 13.10.2006:-
"Learned Senior Counsel for the petitioner seeks permission to withdraw the Special Leave Petition. Permission sought for is granted. Accordingly, the Special Leave Petition is dismissed as withdrawn, without prejudice to the rights of the petitioner to take other appropriate remedies."
8. Therefore according to the petitioner, the other appropriate remedy available to them is to file an appeal against the judgment of the trial Court. But according to the first respondent, the other appropriate remedy left open to the petitioner is only to file a fresh suit and not an appeal against the judgment and decree, passed in the suit.
9. The contention of the first respondent that an appeal against the judgment is not the appropriate remedy to which the petitioner would be entitled, is on the basis that by permitting the appeal, the effect of the earlier orders rejecting the impleading application will get annulled.
10. But I am unable to accept such a contention on the part of the first respondent. An application for impleading, filed under Order I, Rule 10 CPC, cannot really be equated to a leave granted to a third party to file an appeal. Essentially there are several distinctions between the rights of a person, who gets impleaded in a suit and the rights of a person who is granted leave to file an appeal. These distinctions, to some extent, can be summarised as follows:-
(a) Where a defendant is newly added as a party to a suit, the plaint is required to be amended and the amended copy of the plaint should be served on the newly added defendant and on the original defendant under Order I, Rule 10(4) CPC. As a consequence, Order I, Rule 10(5) CPC, declares that subject to the provisions of the Limitation Act, the proceedings as against a person added as defendant shall be deemed to have begun only on the service of summons.
Therefore the newly added defendant will have a right to file a written statement under Order VIII, Rule 1 CPC, which includes a right to claim set off under Order VIII, Rule 6 and a right to make a counter-claim under Order VIII, Rule 6A. The provisions of Order XVIII, with regard to the examination of witnesses will apply equally to the newly added defendant.
(b) But in an appeal from an original decree, a stranger who is granted leave to appeal, will face the formidable task of playing the game within the four corners of Order XLI. Even the production of additional evidence under Rule 27 of Order XLI, is circumscribed by the conditions contained therein. Here again, he will be bound by the fundamental principles of the law of evidence that no amount of evidence can be adduced to prove anything which is not pleaded. Since the person seeking leave to file an appeal would not have had an opportunity to file his pleadings, in the trial Court, it is doubtful if such a person will be able to produce any evidence at all at the appellate stage, except when he satisfies the Court under Clause (b) of Sub Rule (1) of Rule 27 of Order XLI.
(c) Section 107 of the Code, empowers the Appellate Court (i) to determine a case finally (ii) to remand a case (iii) to frame issues and refer them for trial and (iv) to take additional evidence. Sub Section (2) of Section 107 confers upon the Appellate Court, the same duties as are conferred upon the Courts of Original Jurisdiction in respect of suits instituted therein. Moreover, an appeal is normally understood to be a continuation of the original proceedings. Therefore it may also be possible to contend that once leave is granted to a third party to file an appeal against an original decree, he can as well request the Appellate Court to exercise any of the above powers and succeed in achieving what he could not otherwise achieve, by attempting to get impleaded in the suit. But it is always within the discretionary power of the Appellate Court to grant a conditional leave to a third party to appeal against an original decree subject to the restriction that such third party shall confine his challenge to the original decree, only on the basis of the pleadings and evidence already on record.
(d) A person, who is precluded from getting impleaded in the suit under Order I, Rule 10 CPC, on account of being found to be not a necessary or proper party, need not necessarily be shut out at least to argue a question of law. Order I, Rule 8A CPC, empowers a Court to permit a person to present his opinion and to take part in the proceedings, if the Court is satisfied that such a person is interested in any question of law, which is directly and substantially in issue in the suit and that it is necessary, in public interest, to allow such a person to present his opinion on that question of law. Therefore it is possible for an Appellate Court to grant leave to a third party to appeal against an original decree to a limited extent, by taking recourse to Order I, Rule 8A CPC. Though Order I, Rule 8A CPC, uses an expression "while trying a suit", the Appellate Court may also fall back upon it, since an appeal is a continuation of the original proceedings. Moreover, Section 107(2) empowers the Appellate Court to perform the same duties as conferred upon Courts of Original Jurisdiction. Therefore even the Appellate Court is empowered to invoke Order I, Rule 8A CPC.
11. In view of the several fundamental differences between the impleadment of a person as a party to a suit and the grant of leave to a third party to file an appeal, both cannot really be equated. Even if the dividing line between the two are not clearly visible, the Court granting leave to a third party to file an appeal against an original decree, can always restrict the right of such third party to confine himself to the pleadings and evidence already available on record, especially in view of the rejection of the impleading application. But a person, who is impleaded as a party to a suit, cannot be restrained by the Court (i) from filing a written statement or (ii)from adducing evidence or (iii) in any manner participating fully and effectively in the proceedings or (iv) even seeking any relief for himself, as any other party could do. Therefore I am unable to accept the contention that the dismissal of the impleading application precludes the petitioner from even seeking leave to appeal against the original decree.
12. Coming to the locus of the petitioner to challenge the decree, there is no doubt about the entitlement of a person to take the leave of the court and challenge a decree to which he is not a party. In Smt. Jatan Kanwar Golcha Vs. M/s.Golcha Properties Private Ltd {AIR 1971 SC 374}, the Supreme Court held that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and that such leave should be granted if he would be prejudicially affected by the judgment. But it is contended by Mr.S.Meenakshi Sundaram, learned counsel appearing for the first respondent, that the petitioner is in no way aggrieved by the reliefs sought for by the first respondent in the suit, since the first respondent in the suit sought reliefs only in so far as the lands owned by him are concerned. The petitioner, who does not claim to be the owner of the suit schedule lands, is not entitled to oppose the prayer of the first respondent/plaintiff, except if he has obtained the consent of the owner. To substantiate the above contention that the learned counsel relied upon Rule 22(3)(i)(h) of The Mineral Concession Rules, 1960, which reads as follows:-
"22. Applications for grant of mining leases:-
(1) .. .. .. .. .. ..
(2) .. .. .. .. .. .. (3)(i) Every application for the grant of renewal of a mining lease shall be accompanied by -
(a) .. .. .. .. .. .. (b) .. .. .. .. ..
.. (c) .. .. .. .. .. .. (d) .. .. .. ..
.. .. (e) .. .. .. .. .. .. (f) .. .. ..
.. .. .. (g) .. .. .. .. .. .. (h) A statement in writing that the applicant has, where the land is not owned by him, obtained surface rights over the area or has obtained consent of the owner for starting mining operations:-
Provided that no such statement shall be necessary where the land is owned by the Government:
Provided further that no such consent of the owner for starting mining operations in the area or part thereof may be furnished after execution of the lease deed, but before entry into the said area:
Provided also that no further consent would be required in the case of renewal where consent has already been obtained during grant of the lease."
13. Mr.S.Meenakshi Sundaram, learned counsel for the first respondent also brought to my attention, the contents of Form-I, referred to in Rule 22(1) of the aforesaid Rules. The said Form-I contains several columns, which has to be filled up by a person applying for mining lease. Column No.3(x) of Form-I contains a question which reads as follows:-
"(x) Brief description of the area with particular reference to the following:
(a) Does the applicant have surface rights over the area for which he is making an application for grant of a mining lease.
(b) If not, has he obtained the consent of the owner, and the occupier of the land for undertaking mining operation. If so, the consent of the owner and occupier of the land be obtained in writing and be filed."
14. Therefore the learned counsel for the first respondent contended that the petitioner, being neither the owner of the land nor a person who has surface rights over the lands belonging to the first respondent nor a person who has obtained the consent of the land owner and the occupier, has no locus standi to file an appeal against the decree obtained by the first respondent in respect of his own land.
15. In order to test the tenability of the said contention, it is necessary to have a bird's eye view of the provisions of The Mines and Minerals (Development and Regulation) Act, 1957 and The Mineral Concession Rules, 1960. The Mines and Minerals (Development and Regulation) Act, 1957, which provides for the development and regulation of mines and minerals under the control of the Union, deals with (i) mining lease (ii) mining operations (iii) prospecting licence (iv) prospecting operations (v) Reconnaissance operations and (vi) Reconnaissance permit. While mining operation is defined under Section 3(d) to be an operation undertaken for the purpose of winning any mineral, mining lease is defined under Section 3(c) to be a lease granted for the purpose undertaking mining operations. Similarly, Section 3(h) defines "prospecting operations" to mean the operations undertaken for the purpose of exploring, locating or proving mineral deposits. Section 3(g) defines "prospecting licence" to mean a licence granted for the purpose of undertaking prospecting operations. Similarly, "reconnaissance operations" is defined under Section 3(ha) to mean the operations undertaken for preliminary prospecting of the mineral through regional, aerial, geophysical, geochemical surface and geological mapping, but does not include pitting, trenching, drilling or sub-surface excavation.
16. Under the Act, no person can undertake any reconnaissance, prospecting or mining operations except under a reconnaissance permit or prospecting licence or a mining lease, as the case may be. Section 24-A inserted by Amendment Act 37 of 1986, confers certain rights and imposes certain liabilities upon the holder of a reconnaissance permit, prospecting licence or mining lease. Section 24A reads as follows:-
"24A. Rights and liabilities of a holder of prospecting licence or mining lease.--(1) On the issue of a reconnaissance permit, prospecting licence or mining lease under this Act and the rules made thereunder, it shall be lawful for the holder of such permit, licence or lease, his agents or his servants or workmen to enter the lands over which such permit, lease or licence had been granted at all times during its currency and carry out all such reconnaissance, prospecting or mining operations as may be prescribed:
Provided that no person shall enter into any building or upon an enclosed Court or garden attached to a dwelling-house (except with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so.
(2) The holder of a reconnaissance permit, prospecting licence or mining lease referred to in sub-section (1) shall be liable to pay compensation in such manner as may be prescribed to the occupier of the surface of the land granted under such permit, licence or lease for any loss or damage which is likely to arise or has arisen from or in consequence of the reconnaissance, mining or prospecting operations.
(3) The amount of compensation payable under sub-section (2) shall be determined by the State Government in the manner prescribed."
17. Rules 4 to 7D under Chapter-II of The Mineral Concession Rules, 1960 deal with the grant of reconnaissance permits. Rules 8 to 21 under Chapter-III deal with the grant of prospecting licences. Rules 22 to 40 in Chapter-IV deal with the grant of mining leases. While Rule 9(2)(g), which is in pari materia with Rule 22(3)(h) requires every application for a prospecting licence to be accompanied by a statement in writing that the applicant has obtained surface rights over the area or has obtained the consent of the owner for starting prospecting operations, Rule 7 dealing with the conditions for the grant of a reconnaissance permit, is not in pari materia with Rule 22(3)(h). In other words, the application for the grant of a prospecting licence or for the grant of a mining lease should be accompanied by a statement in writing made by the applicant that he had obtained surface rights over the area or has obtained the consent of the owner for starting prospecting operations or mining operations, as the case may be. But under Rule 7, no such condition is imposed for the grant of reconnaissance permit except that after the grant of such permit, they shall not enter any private land without obtaining permission of the owner of the land (Rule 7(1)(iv)). This is why Form-A does not contain a similar column as contained in Form-B or Form-I.
18. Therefore the Act and the Rules contemplate different situations. In some of those situations, prior consent of the owner is made necessary. In some situations, only post-facto permission is contemplated. But interestingly, it is only under The Mineral Concession Rules, 1960 and not under the Act, that prior consent or post facto permission is contemplated for the grant of such permits, licences or leases. There are at least two provisions in the Act, which play a different tune. As stated earlier, Section 24-A empowers the holder of a reconnaissance permit, prospecting licence or mining lease to enter into the land at all times. It is only when a necessity arises to enter into any building or an enclosed Court or a garden attached to a dwelling house that a notice in writing of a duration of at least 7 days is necessary to be issued by virtue of proviso to Section 24-A(1). Section 24-A(2) makes the holder of the reconnaissance permit, prospecting licence or mining lease liable to pay compensation to the occupier of the surface of the land for any loss or damage caused and such compensation is also to be determined only by the State Government under Section 24-A(3). Similarly, Section 24 of the Act confers power of entry and inspection on any person authorised by the Central Government or the State Government. A similar power of entry and inspection can be conferred by the Central Government on the Geological Survey of India. Therefore there are certain situations when the Government is empowered to act even without the prior consent or post facto permission of the owner of the land.
19. Moreover, the Supreme Court has already held in Indian Metals and Ferro Alloys Ltd Vs. Union of India {AIR 1991 SC 818} that the State Government is not bound to dispose of applications for mining lease only on a first-cum- first serve basis and that the mining lease should be given to that applicant who can exploit it most efficiently.
20. In the light of the above provisions, if we look at the prayer made by the first respondent, in the original suit, the first respondent has not only sought a mandatory injunction to direct the Government to process their application for mining lease but also sought a permanent injunction restraining the Government from processing the application of any other person for a mining lease. Therefore, prima facie, it appears that the first respondent is seeking a relief against statutory provisions and such relief also infringes upon the rights of other persons to apply even for a reconnaissance permit. It is in such circumstances that the petitioner is seeking leave to file an appeal against the original decree.
21. As a matter of fact, Rule 58 of The Mineral Concession Rules, 1960, as it originally stood, empowered the State Government to reserve any area for exploitation by the Government or a Corporation or a Government Company. However, it was deleted by an amendment in the year 1988. But Section 17A was inserted by Amendment Act 37 of 1987, under which the Central Government, in consultation with the State Government or the State Government with the approval of the Central Government, can reserve any area for undertaking prospecting or mining operations through a Government Company or Corporation owned or controlled by it. Therefore if a permanent injunction of the nature prayed for by the first respondent is granted in the suit, it will have far-reaching implications and may go against statutory provisions. It is in this background that the attempt of the petitioner to seek leave to appeal against the original decree should be looked into.
22. According to the petitioner, a Memorandum of Understanding was signed by the petitioner with the Government of Tamil Nadu, on 27.6.2002 for setting up an Integrated Titanium Dioxide Project in the State. Titanium is an Atomic Mineral which falls under Part-B of The First Schedule to The Mines and Minerals (Development and Regulation) Act, 1957. Therefore there is a general restriction under Section 4(3) of the Act upon the State Government to undertake reconnaissance, prospecting or mining operations with respect to such a mineral, except after prior consultation with the Central Government. But the Central Government has not been made a party to the suit.
23. It is claimed by the petitioner that in August-September 2003, the Government of Tamil Nadu granted three prospecting licences, covering an area of 8052.065 hectares in Tuticorin and Tirunelveli Districts, to them and the prospecting operations were commenced by the petitioner in December 2003. The operations were completed in January 2005. The first respondent herein is alleged to have bought lands in the area in which prospecting operations were carried on by the petitioner, only when such operations were in progress. After completion of prospecting operations, the petitioner applied for mining lease and Section 11(1) of the Act conferred a preferential right upon the petitioner to obtain a mining lease. It is contended that only with a view to defeat such preferential right under Section 11(1) that the first respondent appears to have filed the suit in O.S.No.83 of 2005. This is borne out by the prayer made in the suit for a permanent injunction restraining the Government from granting mining lease to any person other than the plaintiff.
24. Though Mr.S.Meenakshi Sundaram, learned counsel appearing for the first respondent, contended that the respondents 2 to 9 (State Government and its officials) have already filed an appeal in A.S.No.25 of 2007 against the judgment and decree in O.S.No.83 of 2005 and that therefore the Government can take care of its interests, I am unable to convince myself about it. There is a reason for this. When the dismissal of the impleading application went up to the Supreme Court, the State Government took a stand in the form of a counter affidavit. Later on, it is contended by the petitioner that the Secretary to Government, Industries (MMA1) Department, sent a letter bearing No.13412/MMA1/2005-16 dated 27.2.2008, taking a contra stand and indicating that the District Administration did not obtain the approval of the Government before taking such a stand before the Supreme court and that therefore disciplinary action was initiated against the Assistant Director (Mines) for filing a counter affidavit in the Hon'ble Supreme Court, taking a different stand. In that letter filed by the petitioner in the typed set of papers, the Secretary to Government has recorded the fact that the Government had entered into a Memorandum of Understanding with the petitioner herein, on 28.6.2007 for the implementation of the Titanium Dioxide Project. Thus, there is a letter on record to show that the Government and its District Administration spoke in different voices at different points of time. Therefore it is not known as to how far the interests of the Government and public interest will be taken care of in the first appeal filed by the Government.
25. Interestingly, the first respondent relies upon a letter issued by the Secretary to Government bearing letter No.23031/MMA1/2005-2 dated 24.3.2006, issued under The Right to Information Act. In that letter, the Secretary to Government has stated that the Memorandum of Understanding with the petitioner lapsed on 21.6.2005. But in the subsequent letter, relied upon by the petitioner, the Secretary to Government has confirmed that a Memorandum of Understanding was entered into on 28.6.2007. Therefore the stand taken by the Government and the appeal filed by the Government against the original decree appears to be immaterial in so far as the rights of the petitioner to challenge the decree is concerned. In view of the relief of permanent injunction prayed for by the first respondent herein in the suit, the petitioner herein, who had a Memorandum of Understanding with the Government and to whom a prospecting licence was granted, can be certainly taken to be a person aggrieved by the original decree. In Banarsi Vs. Ram Phal {AIR 2003 SC 1989}, it was held that to be entitled to file an appeal, a person must be aggrieved by the decree. Paragraph-8 of the said decision reads as follows:-
"8. Sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal."
26. In view of the fact that the petitioner had a prospecting licence in pursuance of a Memorandum of Understanding and also in view of the fact that the petitioner carried on prospecting operations, which conferred a preferential right on them under Section 11(1), the decree passed by the trial Court is certainly one which prejudicially or adversely affected their rights. Therefore the petitioner can be considered to be a person aggrieved.
27. Mr.S.Meenakshi Sundaram, learned counsel appearing for the first respondent contended that since an appeal is a continuation of the proceedings, a revision is not maintainable against an order if it does not decide the suit finally. In support of his contention, the learned counsel relied upon the decision of the Apex Court in Shiv Shakti Co-operative Housing Society Vs. M/s.Swaraj Developers {2003 (2) MLJ 170}. There is no quarrel with the said proposition. In this case, by refusing leave to appeal, the right of the petitioner to challenge the decree passed by the trial Court has been finally concluded. Therefore there is no alternative except to file a revision.
28. In such an event, the learned counsel for the first respondent contended that since the order under revision finally concluded the rights of the petitioner vis-a-vis the first respondent, the present revision should be construed only as one under Section 115 CPC. If it is construed as a revision under Section 115 CPC, there are certain limitations on the exercise of the revisional jurisdiction by this Court. According to the learned counsel for the first respondent, the petitioner is now trying to take advantage of the liberty reserved for him to workout his remedies, while withdrawing the Special Leave Petition in the Supreme Court. The lower Appellate Court has interpreted the right so reserved to mean only a fresh suit. If such an interpretation by the lower Court is not perverse, the order cannot be revised. In support of the said contention, the learned counsel for the first respondent relied upon the decision of the Supreme Court in B.K.Muniraju Vs. State of Karnataka {2008 (4) SCC 451}, paragraph-24 of which reads as follows:-
"24. It is clear that whether it is a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. It is also clear that the High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a Court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character."
29. In my considered view, the case would fall under the category of grave injustice, on account of the fact that without taking note of the statutory provisions contained in The Mines and Minerals (Development and Regulation) Act, 1957 and the Rules issued thereunder, the trial Court has passed a decree, curtailing the rights of the State Government and also that of the Central Government without even the Central Government being made a party to the suit. Moreover, the right reserved by the petitioner while withdrawing the Special Leave Petition, is itself on account of the stand taken on behalf of the State Government at that time. But a letter written by the State Government subsequently, disclaiming the stand taken before the Supreme Court by the District Administration, is on record. Therefore the right reserved at the time of withdrawal of the Special Leave Petition should be interpreted in such a manner that it is in tune with the remedies available to the petitioner and his entitlement to choose any one of such remedies.
30. In view of the above, I hold that the order of the Court below suffers from serious irregularity and is liable to be set aside. Therefore this Civil Revision Petition is allowed, the order of the Court below in I.A.No.81 of 2007 is set aside and the petitioner is granted leave to file an appeal against the judgment and decree in O.S.No.83 of 2005. If the papers in the First Appeal have already been returned to the petitioner by the lower Appellate Court, the petitioner shall represent them, within 10 days of the receipt of a copy of this order. Thereafter, the lower Appellate Court shall number the appeal, if the other formalities have been complied with and take up the appeal for hearing along with the connected appeal filed by the Government in A.S.No. 25 of 2007. If the papers in the First Appeal have not been returned to the petitioner, but are available in the lower Appellate Court itself, the lower Appellate Court shall number the First Appeal and take it up for hearing along with the appeal filed by the Government in A.S.No.25 of 2007.
31. However in view of the dismissal of the impleading petition of the petitioner in the first instance, the appeal filed by the petitioner shall be confined only to the pleadings and the evidence already on record and also to the questions of law arising with reference to statutory provisions contained in The Mines and Minerals (Development and Regulation) Act, the Rules issued thereunder or any other statutes, rules or regulations.
32. The Civil Revision Petition is allowed on the above terms. No costs. Consequently, connected miscellaneous petition is closed.
Svn To
1.The Principal District Court, Tirunelveli.
2.The District Collector, State of Tamil Nadu, Tirunelveli.
3.The Secretary to Government, Industries Department, Fort St. George, Chennai.
4.The Director of Geology and Mining, Guindy, Chennai.
5.The Assistant Director of Geology and Mining, Kokirakulam, Tirunelveli.
6.The District Collector, Tuticorin.
7.The Assistant Director of Geology and Mining Collecterate, Tuticorin.
8.The District Collector, Kanyakumari at Nagerkoil.
9.The Assistant Director of Geology and Mining Collecterate, Nagerkoil.