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CASE NO.: Review Petition (civil)  353 of 2003

PETITIONER: INDIAN CHARGE CHROME LTD. & ANR.                 

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT: 01/04/2005

BENCH: Y.K. Sabharwal,K.G. Balakrishnan & S.B. Sinha

JUDGMENT: JUDGMENT O R D E R Review Petition(civil)No.353 of 2003 IN CIVIL APPEAL NO.8501 OF 2002 [With R.P. (C) Nos.469/03 & 741/03 in T.C. No.9/02, R.P. (C)  Nos.354/03 in C.A.No.8502/02 &  401/03 in C.A. No. 8501/02]

Y.K.SABHARWAL, J

       Civil Appeal Nos.8501 and 8502 of 2002 and Transferred case No.9  of 2002 were decided by this Court in terms of judgment dated 17th  December, 2002.  The civil appeals had been filed against the decision of  Orissa High Court dated 18th May, 2001 reported in  [AIR 2002 Orissa 45].   The transferred case was a writ petition filed in Delhi High Court that had  been transferred to this Court.  The civil appeals and the writ petition were  dismissed.         In these petitions seeking review of the aforesaid judgment, the  limited point for consideration at this stage is whether the review petitions  deserve to be admitted and consequently the civil appeals and the  transferred case deserve to be reheard or not.  For considering this limited  point, it is not necessary to note facts in detail, the same having been  noted in the judgment under review reported in Indian Charge Chrome  Ltd. & Anr. v. Union of India & Ors. [(2003) 2 SCC 533].          Facts in brief relevant for deciding the limited point are that the State  of Orissa made recommendation dated 28th January, 1999 seeking the  approval of the Government of India under Section 5(1) of the Mines and  Minerals (Regulation and Development) Act, 1957 (for short, ’the Act’) in  respect of 84.881 hectares of land, bearing chromite in Village  Kalarangiata, Kaliapani in Sukinda tehsil of Jajpur district, Orissa in favour  of M/s. Nava Bharat Ferro Alloys Ltd. (for short, ’Nava Bharat’).  The said  recommendation was challenged before the Orissa High Court by the  review petitioner M/s. Indian Chrome Ltd.  The writ petition was dismissed  by the High Court in terms of judgment dated 18th May, 2001.         After the decision of the High Court, the Central Government by its  letter dated 27th June, 2001, upon consideration of the recommendation  dated 28th January, 1999 pointed out to the State Government the  following two deficiencies : "(i) The recommended area is not free for grant  and, therefore, before considering this area for  grant of mineral concession, relaxation from the  provisions of Rule 59(1) of Mineral Concession  Rules, 1960 (hereinafter referred to as the  "Rules") is required under Rule 59(2) of the  Rules. The State Government was required to  recommend to the Central Government that while

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considering the proposal dated 28-1-1999 the  provisions of Rule 59(1) may be relaxed by the  Central Government in the interest of mineral  development.  (ii) Admittedly the applicant NBFAL is not the sole  or the first applicant. for the area under  consideration and hence if the State Government  wants to assign priority to this applicant, the  powers under S. 11(5) of the MMDR Act, 1957  (hereinafter referred to as the "Act") are required  to be invoked. It may be noted that prior to 20-12- 1999, the provision relating to granting priority to  a later applicant was covered under S. 11(4) of  the Act which after December, 1999 amendment  has been rechristened with modification as S.  11(5) of the Act."

       The State Government was asked to clarify/take action on the  following issues : "(a) Whether the State Government recommends  that provisions of rule 59(1) of the Rules be  relaxed by the Central Government under rule  59(2) of the Rules in the instant case. If yes, the  reasons therefor may be clearly specified by the  State Government;  (b) whether the State Government recommends  that the provisions under S. 11(5) of the Act (Prior  to December, 1999 S. 11(4) of the Act) be  invoked in the instant case and if yes, the reasons  therefor in the interest of mineral development  may be specified and;  (c) if the answers to the first two queries are in the  affirmative when the State Government may  quickly get the chrome ore requirement of NBFAL  assessed by the "New Committee" and the views  of the Committee with the recommendations of  the State Government thereon may be sent for  consideration by the Central Government by 16th  July, 2001, so that a decision on the  recommendation may be taken by the Central  Government in the time period prescribed by the  High Court of Orissa."

       The aforesaid letter was replied by an officer of the State  Government on 30th June, 2001.         The Central Government, in terms of its letter dated 9th July, 2001,  on consideration of letters dated 28th January, 1999 and 30th June, 2001,  conveyed its approval to the grant of the mining lease in favour of Nava  Bharat under Section 5(1) by invoking the provisions of Section 11(5) of  the Act and relaxing the provisions of Rule 59(1) of the Mineral  Concessions Rules, 1960 and Rule 59(2) of the Rules and in compliance  with the judgment of the High Court.         The approval dated 9th July, 2001 was challenged in the writ petition  aforenoted which was transferred and decided by this Court along with the  civil appeals.         When the matters were pending in this court, a note dated 25th  August, 2001 was approved by the State Cabinet on 28th August, 2001  deciding to withdraw recommendation dated 28th January, 1999.  It was,  inter alia, noted that clarification sent on 30th June, 2001 was not valid  since due approval of the competent authority specified in the Rules of  business of the State Government under Article 166 of the Constitution of  India was not obtained.  It was proposed to grant the entire balance area of  436 hectares to Orissa Mining Corporation.   Four questions that were framed by the majority judgment for  consideration are :

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"1. Whether the so-called reservation of the entire  area for being exploited by the Orissa Mining  Corporation, puts an end to the right of the  respondents and the appeal as well as the writ  petition could be disposed of on that ground ? 2. Whether in fact there has been any relaxation  of the provisions of Rule 59(1) by the Central  Government under Rule 59(2) in respect of the  area in question and if so, once the relaxation  having been granted, further any relaxation when  the question of grant in favour of Nava Bharat  cropped up ?  3. Was there really any reasons recorded by the  State Government in terms of Section 11(4) of the  Act for treating the application in the preferential  manner ? and lastly  4. Whether the Judgment of this Court since  reported in (1999) 4 SCC 149 (1999 AIR SCW  913 : AIR 1999 SC 1236), prevented the State  Government to take the case of any individual  applicant and considered the same on its own  merits, before receipt of the recommendation of  the Committee, which had been set up to find out  the requirements of the respective claimants and  submit the recommendation thereto ?"

       While considering the third question, an order dated 14th January,  1999 said to have been made by the Chief minister was taken into  consideration for rejecting the contention of the petitioners that there were  no special reasons in terms of the provisions contained in sub-section (4)  of Section 11 [now sub-section (5)] for grant of a preferential right in favour  of Nava Bharat.         Insofar as the writ petition challenging the approval dated 9th July,  2001 granted by the Central Government, it was noted that "we also do not  find any infirmity with the approval of the Central Government made, which  is the subject matter of the writ petition that had been filed in the Delhi High  Court and which stands transferred to this Court".         One of the contentions that had been raised on behalf of the  petitioners at the hearing of the appeals and the transferred case that the  letter dated 30th June, 2001 was not issued under the authority of the State  Government and, thus, the approval of the Central Government on the  basis of an unauthorized clarification stood vitiated and could not be  sustained.  That was also the stand of the State Government in the  Cabinet note dated 25th August, 2001 approved on 28th August, 2001.   To support the contention that there are errors apparent on the face  of the record, we have been taken through the judgment to show that the  aforesaid contention was urged.  It appears clearly that the contention was  made but there has been omission to consider it.  The approval was inter,  alia, based on the clarification given in the letter dated 30th June, 2001.  At  this stage, the only question is as to an error apparent on face of record  having occurred in non-consideration of this nature of contention and not  on its merit or demerit.  The validity of the approval was in question in the  transferred case as also in the civil appeals wherein reliance was sought to  be placed on the invalidity of the approval as a subsequent event.         There is another error apparent, namely, the reliance upon the   aforenoted order of the Chief Minister dated 14th January, 1999 while  dealing with the third question and rejecting the contention about non- existence of special reasons in terms of Section 11 (4) (or sub-section (5)  now) without any opportunity  to supply a copy of the order dated 14th  January, 1999, or to deal with it.  It is not on record.  So far even we have  had no opportunity to peruse it. It is also not referred to in the  recommendation of the State Government dated 28th January, 1999.           It is true, as contended by learned counsel opposing the admission  of the review petitions that review petitions should not be lightly entertained  and mere fact that there were two views, one in terms of the majority and

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the other dissenting, cannot be the basis for recalling the majority  judgment and rehearing the matter, but that is not the ground for the  conclusion we have reached, as aforesaid, for admitting the review  petitions.  We have found errors apparent on record, as noticed above,  namely: 1.      Non-consideration of the contention  regarding illegality of the communication  dated 30th June, 2001; and 2.      Absence of opportunity to explain the order  dated 14th January, 1999.         These are manifest errors which have crept up in the judgment  under review resulting in grave miscarriage of justice. Accordingly, we  admit these petitions and recall the judgment dated 17th December, 2002  and direct that the civil appeals and transferred case be listed for hearing.   We make it clear that observations made in this order are only for the  purpose of deciding the limited aspect of admission of the review petitions.