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2010 Supreme(Ori) 392
2010 (Supp.-II) OLR — 1016
B.P. DAS AND B.P. RAY, JJ.
Geomin Minerals & Marketing (P) Ltd....Petitioner
Versus
State of Orissa and others...Opp. Parties
W.P.(C) No. 23 of 2009
(Date of Judgment : 14.7.2010)
For Petitioner:Dr. A.M. Singhvi, H.N.Salve, A. Gupta, P. Pattnaik, J. Mohanty, N.K. Kaul, Aswini Mata, Prashant Mehta.
For Opp. Parties:Mr. Anindya Ku. Mitra, M/s. S.K. Nayak, A.C. Baral, D. Nayak, T. Routray, G.K. Nayak (For O.P. 1-State)
M/s. Mohan Parasaran, Farooq M. Razack, J.K. Mishra, (for O.P.2-Union of India)
Mr. P. Chatterjee, M/s. D. Mohanty, S. Mohanty, R.R. Sahoo, S.M. Patnaik, S. Nanda, (for O.P.3-POSCO)
Mr. Sanjit Mohanty, M/s. Milan Kanungo, D. Pradhan, S.K.Mishra, S.N. Das (for VISA Steel Limited-Intervener)
Headnote:1. MINES AND MINERAL (DEVELOPMENT AND REGULATION) ACT, 1957 Sec. 30 read with Mineral Concession Rules, 1960 - Rule 54 - Revision lies against an order passed by the State Government - Such order must be communicated to the party concerned. (Para - 11.7)
2. MINES AND MINERAL (DEVELOPMENT AND REGULATION) ACT, 1957 - Sec. 11(5) - No order can be made until the Central Government grant its approval - As per Central Government policy "special reasons" under Sec. 11(5) cannot be the same as indicated in Sec. 11(3) but must be much stronger reasons. (Para - 11.10)
3. MINES AND MINERAL (DEVELOPMENT AND REGULATION) ACT, 1957 - Sec. 11 - 'Preferential right' - In the pre-amended Sec. 11(2), person who has applied for a P.L. or M.L. in respect of an area and whose application was received earlier, shall have preferential right for grant of licence and lease, as the case may be, over the applicant whose application was received later - In the post amended Sec. 11(2) the provision is that the applicant whose application was received earlier shall have preferential right to be considered for grant of R.P., P.L. and M.L. as the case may be.
We, therefore hold that the petitioner is entitled to preferential right of consideration over later applicants whose applications were filed after 29.10.1991.
Section-11 (4) of the pre-amended M.M.(D&R) Act provides for grant of prospecting licence to an applicant whose application was received later by giving any special reason to be recorded. In the post-amended Act the same was incorporated in Section-11 (5). In view of the aforesaid dictum of the Apex Court, the petitioner may not have a vested right for grant of Mining Lease, but it has a vested right to be considered. (Para - 15.5)
4. MINES AND MINERAL (DEVELOPMENT AND REGULATION) ACT, 1957 - Sec. 11(5) - State Government has a right to grant lease to an applicant out of turn as per Sec. 11(5) of the Act, subject to certain conditions.
Two conditions are required to be satisfied as per section 11(5), i.e. (i) that there must be “special reasons” recorded in writing, and (ii) the prior approv¬al of the Central Government (for minerals specified in the 1st Schedule) must be obtained before passing an order under Section 11(5) of the M.M.(D&R) Act. Similar was the position under Sec¬tion 11(4) prior to the amendment in December 1999. (Paras - 15.5. & 15.6)
5. MINES AND MINERAL (DEVELOPMENT AND REGULATION) ACT, 1957 - Sec. 11(5) - The term "special reasons' has not been defined in the Act - What would constitute a "special reason" for grant of mineral concession to a later day applicant in preference to an earlier day applicant must be seen from the objects and reasons of the Act - The section provides for an exception from the general rule, that is, an earlier day applicant being given preference over a later day applicant. (Para - 15.7)
JUDGMENT
B.P. DAS, J. : The petitioner, Geomin Minerals & Marketing (P) Ltd. which is a Company incorporated under the Indian Compa¬nies Act, 1956, has filed this writ petition, inter alia with the following prayers:
“Order the opposite parties to dispose of all pending applications for Mineral Concessions filed by the petitioner and set out in the petition in accordance with its vested right to preferential consideration in view of the fact that the petition¬er’s applications have been filed on the first date of availabil¬ity and eligibility.
Issue a writ of prohibition or any other appropriate writ, order or direction restraining the opposite parties from consid¬ering applications for Mineral Concessions of later applicants to the petitioner until the applications of the petitioner are first considered and disposed of by according priority or preferential right based on the petitioner being a first day applicant having applied for the concerned Mineral Concessions set out in the petition on the first date of availability and eligibility.”
2. The facts of the case are given hereinbelow:-
2.1 On 29.10.1991, the petitioner-company filed several application for grant of Prospecting Licence and Mining Lease. According to the petitioner, it has the preferential right for consideration of such applications for grant of Prospecting Licence and Mining Lease on account of the fact that it had filed the applications on the 1st day of availability and eligibility in pursuance of a notification dated 23.8.1991 issued by the Govt. of Orissa in the Department of Steel and Mines, (O.P.1), which was published in the Official Gazette on 13.9.1991, in terms of Rule 59(1) of the Mineral Concession Rules, 1960 (in short “M.C. Rules) whereby applications for grant of Prospecting Licence and Mining Lease in respect of various areas were invited and consequently mineral concessions were made available with effect from 29.10.1991. The notification is annexed as Annexure-1 to the writ petition and the various applications submitted by the petitioner for grant of Prospecting Licence and Mining Lease are annexed as Annexure-2 series. One of such applications is in respect of an area of 186 hects. in village Rantha in the dis¬trict of Sundergarh.
2.2 While the applications of the petitioner were pending for consideration of the State Government, M.C. Rules was amended in 2002 to include Rule 63-A, which required opposite party No.1 to dispose of the applications for Reconnaissance Permits, Pros¬pecting Licence and Mining Lease within 6,9 and 12 months respec¬tively. Opposite party No.1 failed to take any action in dispos¬ing of the applications of the petitioner which had been pending since 1991 despite upteem number of reminders to opposite party No.1 and while the applications of the petitioner were still pending, POSCO India Pvt. Ltd, (‘POSCO’ hereinafter) which was subsequently impleaded as opposite party No. 3 by virtue of our order dated 13.5.2009 on its application for impleadment, had filed various applications for mineral concessions in September 2005 over areas in the districts of Keonjhar and Sundergarh par¬tially or wholly overlapping with the areas for which various applications were filed by the petitioner.
2.3 The further case of the petitioner is that when POSCO filed is applications for Mineral Concession, the petitioner’s applications had been pending for approximately fourteen years. The petitioner and it’s group of companies were in the process of setting up an Integrated Steel Plant in the State of Orissa with a capacity of 12 million tonnes per annum. It is further stated that petitioner came to know that on or about 22.6.2005 opposite party No.1 had entered into a Memorandum of Understanding (MoU) with POSCO, whereby opposite party No.1 agreed to grant Prospect¬ing Licence and Captive Mining lease for 600 million tonnes of iron ore to POSCO after approval of Government of India. In the said MoU, as stated by the petitioner, it w
