Geomin Mineralas & Marketing P.Ltd vs State Of Orissa & Ors

3. The factual matrix of the case is as follows:

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 “Kudremukh Company”) 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 Kumar Dagara’ before 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 63-A 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.

8. 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 following prayer:

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.

After the above High Court order, Geomin made a representation with respect to PL Application No.1337.

Section 11(5) will have no application where applications are considered simultaneously for areas which are notified, which is the present case. The recommendation dated 9.01.2009 made by the State Government is not sustainable.

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 pre-mature 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. The appeals are allowed with the aforesaid observation and direction, but there shall be no order as to costs.