Case: Geomin Mineralas &amp; Marketing P.Ltd Vs. State Of Orissa

The availability of two sets of land for fresh grant of lease was notified by the State of Orissa vide Notification dated 20th August, 1991 issued under Rule 59(1) of the Mineral Concession Rules, 1960. The first set comprised of 85.60 acres plus 94.47 acres of land in Village Kansar and Village Gokhurang of Balangir District which had earlier been granted on lease in favour of Shri S.K. Padhi and Shri B.K. Agarwal. These leases were subsequently surrendered to the State Government and were, therefore, available for regrant. The State Government vide notification dated 20th August, 1991 notified the availability w.e.f. 24th October,1991. The second set of land comprised of 283.06 square miles in Horomoto Guali Block, Malangtoli Block, Khandhdhar-Pahar in Block Keonjhar and Sundargarh districts, Taldihi Toda Block, Sundargarh District and Dubna Block I and III which was declared to be reserved for public sector corporations vide Notification dated 05.06.1962 and 06.12.1962. The State Government decided to dereserve the said mineral bearing areas and the availability of the said area was notified vide Notification dated 23rd August,1991. The date of availability for regrant was on and from 29th October, 1991. The dispute in the case ofSLP No. 31593/2010 is regarding 186 hectares of land located in village Rantha District Sundergarh. Although, the recommendation made in favour of POSCO covers an area of 2500 hectares, thusinterest is limited to a fraction of the land recommended for POSCO.4. POSCO had made an application for prospecting licence for an area of 6828.54 hectares. Initially a recommendation was made to the Central Government in favour of POSCO for an area of 6204.352 hectares by the State Government on 19.12.2006. The recommendation was challenged by Kudremukh Iron Ore Company (hereinafter referred to as the) by means of a writ petition being W.P. No. 1775 of 2007. The High Court refrained from exercising its discretion since the matter was pending before the Central Government and directed that representation of Kudremukh Company may be treated as revisional application. The recommendation of the State Government was set aside vide order dated 27th September,2007 by the Revisional Authority as all mineral concession applications were not considered simultaneously and no orders were passed on those applications. It was directed that all pending applications be considered simultaneously and inter se merit be examined and then order be passed as per law after affording an opportunity of hearing to all the applicants. Earlier the Central Government by its letter dated 16.7.2007 had informed the State Government that the recommendation in favour of POSCO could not be processed as the process of hearing in respect of 203 applicants was still not complete. It was noted that the recommendation in favour of POSCO was for an area which was partially notified and partially non-notified and, hence, the applications should be considered accordingly as per law.5. The order passed by the Revisional Authority dated 27th September, 2007 was challenged by one ‘Dhananjay Kumarbefore the Orissa High Court in a Writ Petition being W.P(C) No. 15315 of 2007. It was challenged on the ground that the directions for simultaneous consideration of all applications affects the preferential rights of the first day applicants under Section 11(2) of the MM(D&R) Act. In the said Writ Petition No. 15315 of 2007, Geomin Minerals & Marketing (P) Ltd. filed an application for intervention. The intervention application was dismissed by the Orissa High Court on 22nd February, 2008 with the observation that Geomin Minerals & Marketing (P) Ltd. may take independent steps in respect of its grievance. On 2nd May, 2008 the Orissa High Court by judgment in W.P(C) No.15315 of 2007 held that there was no preferential right for the applicant. The High Court thus dismissed the writ petition and upheld the order of the Revisional Authority dated 27th September, 2007.6. Geomin Minerals & Marketing (P) Ltd. filed another Writ Petition being W.P(C) No.6484 of 2008 praying expeditious disposal of all pending applications for mineral concessions filed by it, based on its right arising from Rule 63A of the MC Rules. The said writ petition was disposed of on 14th July, 2008 by the Orissa High Court with a direction to the State Government to consider the pending PL/RP applications of Geomin Minerals & Marketing (P) Ltd. preferably within a period of six months without discrimination and in accordance with law.7. In the meantime, during the pendency of the applications preferred by different persons including Geomin Minerals & Marketing (P) Ltd. for Preferential Licencefor short) and Mining Licencefor short), on 20th December, 1999 amendments carried out in Section 11 of MM(D&R) Act became effective. By the amending Act, the first proviso to Section 11(2) of MM(D&R) Act was inserted asPreferential right of certain persons.(2).....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 thisnon obstante clause i.e. Sub-section (4) of Section 11 was renumbered as Sub-section (5), and a new Sub-section (4) was introduced, which reads as(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.Pursuant to the order of the Revisional Authority dated 27th September, 2007 passed in the case of Kudremukh Company, the State Government issued a notice to Geomin Minerals & Marketing (P) Ltd. under Rule 12(1) of the MC Rules giving them opportunity of being heard. The officials of the Geomin Minerals & Marketing (P) Ltd. attended the hearing. Thereafter, by a minutes of the meeting, inter se merits of all applicants was prepared by the State of Orissa on 17th October, 2008, but no recommendation was made. Therefore, Geomin Minerals & Marketing (P) Ltd. filed a Writ Petition being W.P(C) No.23 of 2009 inter alia with the followingthe 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 theapplications have been filed on the first date of availability and eligibility. Issue a writ of prohibition or any other appropriate writ, order or direction restraining the opposite parties from considering 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 andWrit Petition was filed on 5th January, 2009 by Geomin Minerals & Marketing (P) Ltd. and just after few days on 9th January, 2009, the State Government made impugned recommendation to the Central Government in favour of POSCO under Section 11(3) and (5) of the MM(D&R) Act. The said recommendation was challenged by Geomin Minerals & Marketing (P) Ltd. by filing a petition for amendment.9. On hearing the parties, the High Court framed the following issues forWhether the writ petition is maintainable due to availability of alternative remedy?2. Whether the writ petition is premature?3. Whether the writ petition is maintainable due to delay and laches?4. Whether the writ petition is barred by res-judicata?5. Whether the area in question was earlier reserved or it is a non-reserved area?6. Whether the petitioner has any preferential right under Section 11 of the M.M. (D&R) Act?7. Whether recommendation made by the State Government under section 11 (5) of the M.M.(D&R) Act in favour of POSCO isIn the present case, the second issue is important as the respondents to the writ petitions raised the question of maintainability on one of the grounds that the application was premature. The said issue was answered by the High Court in a cryptic manner without any reason, as apparent from its finding which is producedno.2, Whether the writ petition is premature?This issue is answered in favour of the petitioner as the petitioner has approached this Court at a time when its right to be considered along with POSCO has been threatened to be infringed by the action of the State, which, according to the petitioner, is illegal and contrary to the statutory provision. So the petitioner prayed for preferential right under Article 226 of the Constitution of India. Hence the writ petition cannot be said to be premature as the petitioner could not have waited till the harm is caused to him (See Bengal Immunity Co. Ltd., v. State of Bihar and others, AIR 1955Nos. 6 and 7 relate to preferential right of Geomin Minerals & Marketing (P) Ltd. under Section 11 of the MM (D&R) Act and validity of recommendation made by the State Government under Section 11(5) of the said Act in favour of POSCO. Both the issues were determined by the High Court in favour of Geomin Minerals & Marketing (P) Ltd., and against the POSCO. Referring to Section 11(2), (3) and (4) the High Court held that the Geomin Minerals & Marketing (P) Ltd. has preferential right for grant of licence and lease and that the recommendation made by the State Government under Section 11 (5) in favour of POSCO is invalid.11. The judgment aforesaid has been challenged by Geomin Minerals & Marketing (P) Ltd. by filing an appeal as no specific direction has been given for issuance of licence in its favour. The POSCO and the Government of Orissa have also challenged the judgment by filing their respective appeals. No separate appeal has been preferred by Kudremukh Company or Jindal Steel and Power Ltd. or any other, but some of them have filed intervention applications and petitions for impleadment. Accordingly, at the time of hearing of the appeals, respondents and interveners were heard and, therefore, we allow the applications for intervention and impleadment.

Reasoning:
It is well settled that no applicant has statutory or fundamental right to obtain prospecting licence or a mining lease. In this connection one may refer to this Court decision in Monnet Ispat (supra). Therefore, the High Court before interfering with the recommendation, ought to have looked into the nature of recommendation.35. In view of the finding as recorded above, we are of the view that the High Court committed a grave error of law in deciding the case on merits and deciding the question of legality of the recommendation made by the State Government. In fact they should have left the matter to the Central Government to pass an appropriate order in accordance with law instead of entertaining a premature writ petition. The State Government by its recommendation having forwarded the tabulated chart showing inter se merit of each applicant, it was not for the High Court to sit in appeal to decide who amongst all is more meritorious and is entitled for preferential right.36. We, accordingly, set aside the impugned judgment dated 14th July, 2010 passed by the Division Bench of the Orissa High Court and remit the matter to the Central Government to consider the question of approval under Section 5(1) taking into consideration the recommendations made by the State Government. While deciding the question it will keep in mind the objections raised by the parties as noticed in the preceding paragraphs. It is expected that the decision will be taken on an early date and shall be communicated to the State Government.