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PETITIONER: FERRO ALLOYS CORPN. LTD. & ANR.

       Vs.

RESPONDENT: U.O.I & ORS.

DATE OF JUDGMENT:       22/03/1999

BENCH: S.B.Majmudar, A.P.Misra

JUDGMENT:

S.B.Majmudar, J.

Leave  granted.

     We  have heard learned counsel for the parties finally in  this  appeal  and  accordingly,  this  appeal  is  being disposed  of by this judgment.  The short question requiring a  long  answer in this appeal is whether the writ  petition filed  by  the appellant Corporation before the Orissa  High Court  was  maintainable.   The High Court in  the  impugned judgment  has  taken the view that it was  not  maintainable being  barred by the principle of res judicata.  In order to appreciate  the  grievance  of  the  appellant  against  the impugned  judgment,  it is necessary to note a few  relevant introductory facts.

     INTRODUCTORY  FACTS  :  The appellant put forward  its claim  for grant of mining lease for extracting an important mineral  - chromite in Sukinda Valley situated in the  State of  Orissa.   The  State  of Orissa  is  having  substantial reserves  of the aforesaid mineral.  Originally, Tata Iron & Steel  Co.   Ltd.   (for short TISCO) was  granted  mining lease  for 50 square kilometres of area in Sukinda Valley by order of the Collector, Cuttack sometime in September, 1952. Originally,  mining  lease  over 1813 hectares of  area  was granted  to TISCO for chromite extraction after  preliminary exploration  for  a period of 20 years on 12.1.1953.   After the Orissa Estates Abolition Act, 1951 (for short the O.E.A Act)  came  into  force, the rights of  erstwhile  Zamindar (Raja of Sukinda) were vested in the State which granted the lease to TISCO.  In 1973, renewal was granted for an area of 1261.476  hectares subject to the condition that TISCO  will establish  a beneficiating plant as to the friable and  lean ore  in the leasehold area for the purpose of improving  the quality   for   use  in   the  indigenous  plants,   namely, Ferro-Chrome  and Refractories.  Before the aforesaid  lease could  expire  by efflux of time on 3rd October, 1991  TISCO applied  to the State authorities for second renewal of  the mining  lease  for 20 more years under Section 8(3)  of  the Mines  and  Minerals (Regulation and Development) Act,  1957 (for  short the MMRD Act).  The State Government of Orissa recommended  to the Central Govt.  for approval of the  said second renewal for the entire area in which TISCO was having earlier  lease.   The aforesaid recommendation was  made  in

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compliance  with  the requirement prescribed under the  MMRD Act read with Mineral Concession Rules, 1960 (for short the Rules).   It may be noted that the said recommendation  was for  re-grant of mining lease for 10 years to TISCO for  the entire  area of 1261.476 hectares though the demand of TISCO for  second renewal of this lease was for 20 years.  It  was suggested by the State Govt.  to grant lease for a period of 10  years  with  effect from 12.1.1993  subject  to  certain conditions  mentioned in the recommendatory letter.  On  3rd June,  1993,  the Government of India with reference to  the recommendation  of  the  State Government  dated  28.11.1992 conveyed  its  approval under Section 8(3) in relaxation  of Section  6(1)(b) of the MMRD Act.  On 11.6.1993, a Member of Parliament  complained to the Ministry that during the  last fifty   years,   TISCO   had  not    done   much   for   the industrialisation  of  the  State of Orissa and  the  mining areas  granted  to  it were hardly exploited for  more  than three  decades.   He indicated that renewal of lease of  the entire  chromite  mining area in favour of TISCO once  again would not be in the interest of development of the State and also  would  not  be in national interest.  The  matter  was looked  into by the Central Govt.  afresh.  It reviewed  its earlier  order  of 3rd June, 1993 and granted  approval  for renewal of lease to TISCO confining it to only half the area i.e.   650 hectares.  The said order dated 5.10.1993 further directed that rest of the area of approximately 600 hectares be  deleted  from  the  existing lease  of  TISCO  and  made available to other industries by the State Government as per the  MMRD  Act  and Mineral Concession Rules,  1960  in  the interest  of  mineral  and  industrial  development  in  the country.   The aforesaid order of the Central Government was challenged  by  TISCO before the Orissa High Court  in  Writ Petition  OJC  No.7729/93  filed on 19.10.1993.   The  rival claimants,  Jindal  Strips Limited and Jindal  Ferro  Alloys Limited, Respondent Nos.  3 and 4 respectively herein, filed a  cross  petition being OJC No.7054/94 in the  Orissa  High Court  praying  for a suitable writ or order  directing  the authorities  concerned  not  to grant renewal  of  lease  to TISCO.   It  may  be mentioned that in  the  aforesaid  writ petition  of TISCO, the present appellant M/s.  Ferro Alloys Corporation  Ltd.   (for  short FACOR) was  made  a  party Respondent  on its request for intervention.  Indian  Charge Chrome  Limited  (for short ICCL) and Indian Metals  Ferro Alloys  Limited (for short IMFA) Respondent Nos.  5 and  6 respectively  herein, in their turn also filed Writ Petition OJC  No.5422/94 in the Orissa High Court opposing the  grant of renewal of mining lease to TISCO.  The present Respondent No.   7 M/s.  Ispat Alloys (for short ISPAT) had not filed any Writ Petition in the Orissa High Court though it is also a claimant for mining lease for the very same mineral.

     The  High  Court of Orissa, after hearing the  parties concerned  in the writ petitions, by its order and  judgment dated  4.4.1995,  took the view that the entire  matter  was required to be re- considered by the Central Government.  It held  that  the  order dated 3rd June, 1993 of  the  Central Government  granting approval for renewal of lease to  TISCO for  the  entire  area and the subsequent  order  dated  5th October, 1993 could not be sustained in law.  The matter had got  to be reconsidered by the Central Government as to  the proposal  of subsequent renewal of the lease of TISCO and as to whether the Central Government would authorise renewal of such  lease by forming an opinion in the interest of mineral development.   The High court did not observe anything as to the  merit  of TISCOs claim for subsequent renewal  of  the

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lease.  Regarding locus standi of the other writ petitioners before  the  High  court  whose writ  petitions  were  being disposed  of  by  the  aforesaid  common  judgment,  it  was observed  that their apprehension was without  justification and  their interest was of contingent nature and that in the event  the  Central  Government  found  it  not  prudent  to authorise  subsequent  renewal  of TISCOs lease,  the  area eventually  would  be available and the State Government  of Orissa  would take steps for making necessary advertisements and inviting applications for grant of mining lease.  It was also  suggested  that  the other petitioners  were  opposing renewal of TISCOs lease and hence they deserved to be given hearing by the Central Government by way of fair play and in compliance  with  the  principle of natural justice  and  to enable  them to place necessary record for consideration  by the  Central  Government.  The applications of employees  of TISCO  as  intervenors were found to have no merit and  were rejected.

     Against  the aforesaid order of the High Court,  TISCO filed special leave petition in this Court being SLP (C) No. 10830/95, other cognate SLPs arising out of the common order of  the High Court on 10th May, 1995 were also filed.  By an interim direction, this Court clarified in TISCOs SLPs that the  pendency  of  the  proceedings  in  the  special  leave petitions  would  not  stand  in  the  way  of  the  Central Government  in disposing the matter in accordance with  law. In  the  meantime,  on 3rd May,1995 appellant FACOR  made  a representation  to the Central Government staking its  claim for  being  granted  mining  lease for the  entire  area  of 1261.476 hectares.

     The  Central Government in its turn and in  compliance with  the  decision  of the High Court and as  a  follow  up action  appointed  a High Power Expert Committee  under  the Chairmanship  of  Shri S.D.  Sharma, Joint Secretary in  the Ministry  of Mines, to consider the submissions filed before the  Central  Government  by  parties   in  the  High  Court proceedings in pursuance of the directions of the High Court of  Orissa in its Judgment dated 4.4.95.  The Committee  was directed  to submit its report to the Government within  two weeks  from the date of the order of the Central  Government i.e.   24th  May 1995.  The Committee was also  required  to give  a  personal  hearing to all the parties  concerned  as stipulated  in  the judgment of the Orissa High court.   The aforesaid  expert  committee  known as  Sharma  Committee, after  hearing the parties concerned gave a detailed  report on 16th August, 1995.  As per the said report second renewal of TISCOs lease was recommended for a smaller area, namely, 406  hectares.   The  Sharma Committee  also  gave  personal hearing  to other claimants for mining lease in the area and who  were  opposing renewal of lease claimed by TISCO.   The Sharma  Committee  after hearing them assessed the needs  of these  rival  claimants  and  came   to  its  own  estimates regarding  the  requirements of these rival claimants.   The Committee made it clear that it was not undertaking the task of  granting  any lease to any of these rival  claimants  in connection  with  the  remaining  area  which  might  become available after reducing the occupied mining lease area with TISCO.   In other words, after confirming TISCOs renewal of lease  of  406  hectares, the balance of 855  hectares  land which  was  to  be available with the State  of  Orissa  for granting  mining  leases  to  other   claimants  had  to  be processed  by the State authorities in accordance with  law. The  Sharma  Committee, however, in the light of the  claims

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put  forward  by  rival  claimants before it  and  the  data submitted  by them in support of their respective cases  for allotment  of leases in their favour, made the assessment of their requirements as noted earlier.

     In  the  light  of  the  aforesaid  report  of  Sharma Committee,  the  Central  Government by its  detailed  order dated  17th  August, 1995 requested the State Government  of Orissa  to  take  necessary steps to issue  orders  granting subsequent  renewal of mining lease for chrome ore in favour of  TISCO  for 406 hectares for a period of 20 years over  a compact  and contiguous area.  It was also directed that the State  of  Orissa should take further action on  the  mining lease  applications of other 4 applicants other than  TISCO, i.e., (1) Jindal Strips Limited/Jindal Ferro Alloys Limited, (2)  the present appellant FACOR (3) ICCL/IMFA and (4) Ispat Alloys Limited.  These other claimants are Respondents 3, 4, 5,  6 and 7 respectively in this appeal.  In the said  order the Central Government further directed the State Government of  Orissa  to  grant  mining lease to  the  aforesaid  four applicants  as  per  law over the balance  area  of  855.476 hectares   to  be  released  by   TISCO,  on  the  basis  of proportionate  requirements  of  the chrome  ore  for  these parties  as  assessed  by the committee, in  a  fair,  just, equitable  and contiguous manner in consultation with Indian Bureau  of Mines within a period of 30 days from the date of issue  of  the order of the Central Government.   The  State Government  was  also directed by the Central Government  to seek  its  approval  for grant of mining leases as  per  the provisions  of  the  MMRD Act and the Rules.   It  was  also observed  that  since  the other four parties were  in  dire necessity  of  the raw material (chrome ore) and had set  up mineral  based  industries  and were suffering for  want  of chrome  ore,  the Central Government in conformity with  the observations  of  the High Court of Orissa in  its  Judgment dated  4.4.1995  and in exercise of powers conferred by  sub rule  (1) of the said Rule 59 relaxed the provisions of  sub rule  (1) of Rule 59 with a view to expedite the process for making  available  the raw material, namely, chrome ore,  to the  needy  industries  in  the   interest  of  the  mineral development.   The  requirements  of chrome ore of  these  4 parties, besides TISCO, which appeared before the committee, as finally accepted by the Central Government were listed as Annexure  I  to  Appendix A of the aforesaid  order  of  the Central  Government.   In the said order it was also  stated for  information of the State Government that in the pending SLP  filed  by TISCO in the Supreme Court against  the  High Court  Judgment,  the Supreme Court on 17th July,  1995  had granted six weeks time to the Government to pass appropriate orders  and the matter was to be listed after 8 weeks.   The aforesaid  order of the Central Government which was  partly in  favour  of  TISCO and partly in favour  of  the  present appellant  as well as the aforesaid contesting Respondents 3 to 7 was also produced before this Court in the pending SLPs of  TISCO  and Industrial Development Corporation of  Orissa Ltd.   (for  short  IDCOL).   The  present  appellant  and Respondents   3  to  7  in   this  appeal  were  also  party Respondents  to the said proceedings before this Court.   In addition  to  these  contesting Respondents,  the  State  of Orissa  and the Union of India were also party  Respondents. After  hearing  the contesting parties in  their  respective cases, relevant points for determination were framed by this Court  after granting leave to appeal in the SLPs and by its decision  in  the case of Tata Iron & Steel Co.   Ltd.   vs. Union  of India And Another, (1996 (9) SCC 709), a Bench  of

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two  learned Judges, speaking through A.M.Ahmadi, CJ,  after considering  the main grievance of the respective contesting parties, upheld the findings reached by the Sharma Committee and  the consequential order of the Central Government dated 17th  August,  1995.  It accordingly dismissed  the  appeals filed  by  TISCO and IDCOL.  As we have noted, the  impugned order  of  the  Central Government dated 17th  August,  1995 which  in  its turn was an off-shoot of  Sharma  Committees report  had  directed  the State of Orissa to  grant  mining leases  to four applicants other than TISCO in the remaining area  of 855.476 hectares of land.  The appellant herein was one  of  those  four  applicants found  eligible  for  being granted lease for extracting chromium.  However, the Central Government  had  observed  that so far  as  the  appellants requirement of chrome ore was concerned, it had accepted the assessment  of  the Sharma Committee to the extent  of  6.40 metric  tones  for the first 20 years of lease and  for  the remaining  30  years  its  requirement  of  chrome  ore  was assessed  at  14.13 metric tones, totalling to 20.53  metric tones  in  all.   For  Respondent Nos.  3  to  7,  different assessments  of the requirement of chrome ore as made by the Sharma  Committee were accepted by the Central Government in its order dated 17th August, 1995.  That order got confirmed by  this  court  in the aforesaid decision in  TISCOs  case (Supra).

     In  the  meanwhile, the appellant  being  dissatisfied with  the  aforesaid order of the Central  Government  dated 17th  August,  1995  made a detailed representation  to  the State  Government  on  26th May, 1996 spelling out  its  own requirement  of  chrome ore which, according to it, was  not correctly  assessed by Sharma Committee and which assessment was   accepted   by  the   Central  Government.   The   said representation  was forwarded by the State Government to the Central  Government  on  12th June, 1997.   The  appellants representation  reiterated  its  claim for grant  of  mining lease  for  chrome  ore  over the entire  area  of  1261.476 hectares  in  Sukinda  Valley  as  earlier  applied  for  on 19.10.93.   However,  subsequently  on 29th June,  1997  the State  Government  of  Orissa  recommended  to  the  Central Government  for  granting leases to four claimants,  namely, IMFA/ICCL,  Jindals,  Ispat and FACOR over 50% of  the  left over  area totally admeasuring 855.476 hectares on the basis of  50% of their respective requirements as assessed by  the Sharma  Committee, the remaining 50% of the balance area out of  855.476  hectares  was  sought to  be  thrown  open  for consideration  of claims of other claimants for such  mining leases  along  with aforesaid four claimants to  the  extent their  requirements were not fully met by reduction of their estimated requirements by 50% as per the said recommendation of the State Government.

     Being  aggrieved  by the aforesaid order of the  State Government  dated  29th June, 1997 and the earlier order  of the Central Government dated 17th August, 1995 the appellant filed  a  fresh Writ Petition being OJC No.12032/97  in  the Orissa High Court out of which the present appeal arises.

     The  High  Court after hearing the parties  concerned, took  the view that the writ petition filed by the appellant after  the  decision rendered by this Court in TISCOs  case (supra)  challenging  the  very same order  of  the  Central Government  dated  17th August, 1995 which was confirmed  by this Court in the aforesaid decision was not maintainable on the ground of res judicata.  It was also held that the order

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of  the  Central Govt.  dated 17th August, 1995 was  legally justified  and the subsequent order of the State  Government dated 29th June, 1997 could also not be said to be suffering from non-application of mind and the decision making process of  the  State  Government  was   not  suffering  from   any infirmity.  As seen earlier, this order of the High Court is the  subject-matter  of  the  present appeal  moved  by  the dissatisfied writ petitioner FACOR.

     RIVAL  CONTENTIONS:   Learned   Senior  Counsel,  Shri F.S.Nariman for the appellant, vehemently contended that the High  Court had patently erred in law in dismissing the writ petition  as  barred  by res judicata.  He took  us  to  the relevant  pleadings  of  the parties, the judgment  of  this Court  in  TISCOs  case (supra) and also  relied  upon  the relevant  documents  for submitting that in  TISCOs  appeal there  was no occasion for the appellant to raise the  inter se  dispute  between the contesting Respondents nor has  the Court   adjudicated  upon  the   present  grievance  of  the appellant  that  assessment  of  its   need  by  the  Sharma Committee   as  accepted  by   the  Central  Government  was erroneous  and an under-estimate.  That there was no express decision  of this Court on this aspect nor was the appellant required  to  put forward this contention  earlier.   Hence, neither  res  judicata nor constructive res  judicata  would apply  to  the facts of the present case.  He  alternatively submitted  that, in any case, the High Court could have held that  the present grievance was premature as the appellants earlier  application  for  grant of mining lease  which  was dismissed  as premature by the State Government was  pending scrutiny  in  revision  before the  Central  Government  and hence, this issue could have been kept open.

     Learned  senior counsel Shri Shanti Bhushan, appearing for  Respondent nos.  3 and 4, on the other hand,  submitted that  the  appellant itself invited the Sharma Committee  to assess its needs for chrome ore and also invited the Central Government  not only to accept the said assessment but  also to exercise powers under Rule 59 sub-rule (2) for dispensing with  the  procedure  under Rule 59, sub- rule  (1)  of  the Rules.   That when the question of legality of the order  of the Central Government was being considered by this Court in TISCOs  appeal the appellant as Respondent therein did  not think  it fit to challenge the assessment of its need by the Committee  as accepted by the Central Government.  Thus,  at least  on the principle of constructive res judicata, if not actual  res  judicata, the appellants present grievance  is barred.   It is also barred on the principle of estoppel and acquiescence.   Shri  Shanti  Bhushan, in  this  connection, invited our attention to relevant provisions of MMRD Act and submitted  that the Central Governments order was perfectly justified  and binding on all parties especially when it was wholly approved by this Court.

     Shri  Vaidyanathan, learned Addl.  Solicitor  General, appearing  for  Respondent No.1 - Union of India,  submitted that  the  Sharma  Committee was appointed  by  the  Central Government in the light of the directions issued by the High Court   in   TISCOs  writ   petition.   That  the   Central Governments   order  of  17th   August,  1995  was   merely recommendatory in nature and it was for the State Government to pass appropriate orders.  He, however, submitted that the Central  Government  would  request   this  Court  to  issue appropriate  directions in the light of the earlier decision

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of  the  Central Government laying down the scope and  ambit thereof.

     Learned counsel for Respondent no.2 - State of Orissa, contended  that  the order of the Central  Government  dated 17th  August,  1995, as confirmed by this Court, left it  to the  State  Government to pass appropriate orders  regarding grant  of  lease  to  rival   claimants.   That  the   State Government  in exercise of its own independent  jurisdiction under  the  Act had passed its order dated 29th  June,  1997 which  was not challenged by any of the parties before  this Court  and  hence must be held to be binding on all  parties and  consequently, the appellants writ petition was rightly dismissed by the High Court.

     Ms.  Indra Jaisingh, appearing for Respondent no.5, in her  turn, submitted that the appellants writ petition  was clearly  barred by res judicata or constructive res judicata and,  in  any  case,  it was barred  by  delay,  laches  and acquiescence as well as on the ground of estoppel.  That the appellant  itself invited the Sharma Committee to assess its needs  of chrome ore.  After it was so assessed, the Central Government passed the order of 17th August, 1995.  Even that order  was  wholly  supported by the appellant  before  this Court  in TISCOs and IDCOLs appeals.  It sat on the  fence at  that stage.  Even after the arguments in the appeal were over  in  October,  1995 and when the  matter  was  awaiting judgment,  the  appellant  filed writ petition in  the  High Court  challenging the order of Central Government.  It  did not  think  it fit to get that petition transferred to  this court  nor  got  any  clarification   from  this  court  for preserving  its  right  to challenge the assessment  of  its needs  by  separate proceedings.  It is, therefore, now  too late  in the day for the appellant to raise this  contention by separate proceedings.  In fact, the appellant is estopped from its own conduct from doing so, as all other Respondents have  changed their position and have acted upon the Central Governments  order  by treating the assessment of  relative needs  of  rival claimants by the Central Government  to  be correct and binding on all rival claimants.

     Shri   Chidambaram,   learned   senior   counsel   for Respondent no.6, broadly adopted the aforesaid arguments and further  contended that the entire cake of 1261.476 hectares of  land in Sukinda Valley was sought to be claimed by rival claimants.   In  TISCOs  appeal, the rival  claimants  were TISCO  on  the  one  hand, and  the  present  appellant  and Respondent  nos.3  to  7,  on the other.   Once  this  court restricted TISCOs claim on the basis of its need for chrome ore,  necessarily  implied therein was the finding  of  this Court  that the assessment of needs of other claimants  like the  appellant and other Respondents was rightly done by the Central  Government on the basis of the report of the Sharma Committee.   Hence,  the  issue about proper  assessment  of appellants  need was not only res judicata but even on  the ground  of constructive res judicata and also on the  ground that  the  appellant cannot blow hot and cold  subsequently, the  appellants writ petition was rightly dismissed by  the High  Court.  Our attention was invited to a decision of  an English  Court to which we will make a reference  hereafter. Shri  Chidambaram  also placed reliance on Order 41 Rule  22 CPC in support of his contention.

     Learned  senior  counsel,  Shri Gupta  for  Respondent no.7,  also adopted the arguments of learned senior  counsel

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appearing  for  contesting Respondents 2 to 6 and  submitted that  equitable distribution of a scarce mineral like chrome ore  has to be done.  This principle is also settled by this Court in the case of Indian Metals Ferro Ltd.  vs.  Union of India,  (1992  (Suppl.1)  SCC 191).  On the  basis  of  this principle,  the High Court rendered its decision earlier  in TISCOs  writ  petition  which was followed by  the  Central Government by appointing the Sharma Committee and the Sharma Committees  recommendations  were accepted by  the  Central Government  by its order dated 17th August, 1995.  Thus, the entire  exercise of equitable distribution of this rare  and costly  mineral  in  Sukinda  Valley was  completed  by  the Central  Government  and  was approved by this  Court.   Any tinkering  with the same, therefore, cannot be permitted  to any  of  the  Respondents and accordingly,  the  appellants present  proceedings were clearly misconceived and  amounted to  going  behind  the order of the  Central  Government  as confirmed by this Court.

     Learned senior counsel Shri Desai, in support of I.A.1 of  1999  submitted that the order of the  State  Government dated  29th June, 1997 which was upheld by the High Court in the   impugned   judgment  is   correct  and   requires   no interference.  That the present appellant or even contesting Respondents  have  also not thought it fit to challenge  the same and consequently, the State of Orissa should proceed in the light of the said order on the principle of live and let live.  It becomes at once clear that Mr.Desais grievance in the  Intervention Application would not survive if the State upheld  .  Governments order dated 29th June, 1997 is  Shri Nariman,  learned  senior  counsel  for  the  appellant,  in Rejoinder  submitted  that  neither the bar of  express  res judicata  nor  constructive res judicata can be  pressed  in service against the appellant.  That at the stage of TISCOs appeal before this Court no occasion arose for the appellant to   make  the  grievance   regarding  upward  revision   of assessment of its needs.  That this Court was only concerned with TISCOs claim and IDCOLs claim.  These claims could be examined  without going into the wider question of inter  se disputes  between  the  contesting   Respondents.   He  also submitted  that there is no question of any estoppel on  the part  of  the  appellant or any acquiescence,  as  the  said question  never arose for consideration earlier.  That there was  no  delay also on the part of appellant in  challenging the  order of the Central Government dated 17th August, 1995 as the appellant had promptly challenged the same before the High  Court  in  the  beginning  of  the  year  1996.    He, therefore,  submitted that the appeal may be allowed and the order of the High Court may be set aside.

     Points  for  determination:   In   the  light  of  the aforesaid  rival contentions, the following points arise for our  determination.  1.  Whether the writ petition filed  by the  appellant  before  the  High Court was  barred  by  res judicata;  2.  In the alternative, whether the said petition was  barred  by the principle of constructive res  judicata; 3.   Even  if  the findings on the aforesaid points  are  in negative,  whether  the  writ  petition  was  liable  to  be dismissed  on  the additional ground that the appellant  had waived  its  grievance in the writ petition and,  therefore, the  writ  petition was not maintainable on the  grounds  of waiver,  estoppel  and  acquiescence  on  the  part  of  the appellant and also on the ground that it was barred by delay and  laches;   4.  Whether the order of the State of  Orissa

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dated 29th June, 1997 was in conflict with the earlier order of  the Central Government dated 17th August, 1995 as upheld by this court in TISCOs case (Supra).  Whether the order of the State Government dated 29th June, 1997 is binding on the appellant  as well as on the contesting Respondents 2 to  7; 5.   In any case, whether it is a fit case for  interference under  Article  136  of the Constitution of Inidia  by  this Court  on  the facts and circumstances of the case;  and  6. What final order?

     We shall now proceed to deal with the aforesaid points in the same sequence in which they are listed above.

     Point No.1:  So far as the question of res judicata is concerned,  it  has to be kept in view that the  appellants grievance   against  the  impugned   order  of  the  Central Government dated 17th August, 1995 and against the report of the  Sharma Committee as accepted by the aforesaid order  of the  Central  Government proceeds in a narrow compass.   The submission  of Shri Nariman, learned senior counsel for  the appellant  is  that even though the appellant joined  issues before the Sharma Committee in connection with assessment of its  need for chrome ore to enable it to claim mining  lease for  the  entire  area  which was  in  possession  of  TISCO earlier, the ultimate assessment of appellants need as made by  the  Sharma  Committee and as approved  by  the  Central Government  by its order dated 17th August, 1995 involved  a patent  error  and  hence  it was  required  to  be  revised upwards.   The short question is whether this grievance  was on  the  anvil  of scrutiny of this Court  when  it  decided TISCOs  case  (supra) and other cognate matters as per  its judgment  and whether it was finally resolved by it.  Now it has  to be kept in view that before any issue is said to  be heard  and finally decided, the Court considering it has  to be  shown to have expressly considered such an issue and  to have  decided  it  one way or the other  and  such  decision should   have   obtained  finality  in  the   hierarchy   of proceedings.   Then  only  such an issue can be said  to  be heard  and  finally  decided between the parties.   For  the present  discussion  we  may assume that the  appellant  had joined  issue  with the contesting Respondents  before  this Court  when  it was called upon to decide the  rival  claims resulting  in  the decision in TISCOs case  (supra).   Even then  the  question  remains whether  this  Court  expressly considered  the grievance of the appellant against the order of  the  Central Government dated 17th August, 1995 when  it did  not  go  behind the estimate of the  Sharma  Coimmittee regarding  the need of the appellant for chrome ore.  So far as  this  question  is  concerned, we have to  look  to  the express  findings  reached  by this Court in  the  aforesaid decision.   When  we  turn to that decision,  we  find  that Ahmadi,  C.J.,  speaking  for  the Court  in  that  case  in paragraph 2 of this Report, clearly mentioned the grounds of challenge  for consideration of the Court.  They were listed as  two  grounds  being  (1) the  challenge  to  the  common judgment  and order of the Orissa High Court dated  4.4.1995 arising  out of OJC No.  7729 of 1993;  and (2) the decision of  the Central Government dated 17.8.1995 made pursuant  to the said judgment of the High Court.

     Shri  Shanti  Bhushan, learned Senior Counsel for  the contesting Respondents 3 & 4, submitted that the decision of the   Central  Government  dated   17th  August,  1995   was challenged  before this Court not only by TISCO but also  by IDCOL.  That so far as IDCOL is concerned, its challenge was

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clearly  against paragraph 2 of the final directions of  the Central  Government  in the order dated 17th  August,  1995. Two  directions were issued by the Central Government to the State Government in the said order which have to be noted in extenso.   The  relevant  averments in paragraph 17  of  the order  read  as  under :  17.  the Honble  High  Court  of Orissa  in para 96 of its judgment dated 4.4.1995 has  taken note  of  the  dire necessity of the parties before  it  for chrome  ore and observed that ..the parties are in the dire necessity  and  moving from pillar to post..  Keeping  this dire  necessity  of  the parties in view, the  Honble  High Court  has further observed that exigencies of  situation arisen  that  the  national  interest and  the  interest  of mineral  development cannot be kept in a cold storage for an indefinite  period  Besides  TISCO, the four  (4)  parties mentioned  in  para  10 above are the leading  consumers  of chrome  ore  and are languishing for captive source  of  raw material  for their mineral based industries.  Secondly,  it would  be  in the interest of mineral development to  hasten the  process of decision making.  After the surplus rendered area  is  handed over by TISCO to the State Government,  the working  in abandoned quarries are most likely to be damaged due  to  rains  and may create other  environmental  hazards also.   It  would  be very costly and difficult  to  restart abandoned  mines.  It will only add to the national cost  to allow these quarries to get damaged and may even require the needy  parties  to go in for import of the raw  material  to meet the requirements of their industries.  Therefore, so as to ensure earliest compliance to the said observation of the Honble  High  Court,  the  State Government  of  Orissa  is requested to take necessary steps to :-

     (i) issue orders granting subsequent renewal of ML for chrome ore in favour of TISCO over 406 hectares for a period of  20  years  over  a compact and contiguous  area  as  per breakup  given  in para 16 above.  The physical  demarcation based on the above guidelines may also be carried out by the State Government in consultation with Indian Bureau of Mines within a time frame of 30 days in the light of guidelines in para 6.1.12 and 6.1.13 of the Committees Report.

     (ii)  to take further action on the ML applications of the  other 4 (four) applicants (other than TISCO)  mentioned in  para 10 above for grant of mining leases as per law over the balance area of 855.476 hectares of TISCO as assessed by the  Committee)  on  the  basis   of  proportionate  to  the requirements  of  the  chrome  ore   for  these  parties  as furnished to the Committee in a fair, just and equitable and in a contiguous manner in consultation with Indian Bureau of Mines  within a period of 30 days from the date of issue  of this  order  and  make  its recommendation  to  the  Central Government  for  approval for grant of mining leases as  per provisions of the MMRD Act and the Mineral Concession Rules, 1960.  The Government has carefully seen the observations of Honble  Orissa  High  Court  in OJC No.   7729  and  others contained in its judgment dated 4.4.1995.  Since the other 4 (four)  parties  are in dire necessity of the  raw  material (chrome  ore) as observed by the Honble High Court and have set  up mineral based industries and are suffering for  want of chrome ore, the Central Government in conformity with the observations of Honble Orissa High Court (in para 96 of its judgment dated 4.4.1995) and in exercise of powers conferred by sub rule (2) of rules 59 hereby relaxes the provisions of sub  rules  (1) of the said rule 59 objective of  expediting the  process for making available the raw material, which is

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chrome  ore, to the needy industries in the interest of  the mineral development.  The chrome ore requirements of these 4 (four)  parties  besides  TISCO, which appeared  before  the committee  constituted by the Central Government, as finally accepted by the Central Government, are listed as Annexure I of Appendix A of this letter, and the assessment of area for TISCO  as finally accepted by Central Governments listed  as Annexure  II  of Appendix A and in case of M/s Ispat  Alloys Limited, the requirements are listed as Appendix C.

     A  mere  look at the two directions contained  in  the aforesaid  paragraph  17  shows that, so far  as  the  first direction  is  concerned, the State Government  was  clearly directed by the Central Government to grant renewal of lease of  only 406 hectares of land to TISCO for 20 years.  But so far  as  the  second direction is  concerned,  it  obviously pertained  to  the  rival claims of remaining  4  applicants consisting  of  the appellant as well as Respondents 3 to  7 and, therefore, their claims were to be considered for grant of appropriate portions of land for mining purposes from the balance  area.   It  is  the   second  direction  which  was challenged  by  TISCO before this Court as TISCO wanted  the grant  of  the  entire  1261.476 hectares of  land  and  was aggrieved  by  reduction  of  its  allowable  claim  to  406 hectares   only.   Consequently,  a  direct  conflict  arose between  TISCO, on the one hand, and the appellant and other rival  claimants on the other.  That dispute projected  only one  controversy between the parties, namely, whether  TISCO could  be  granted more than 406 hectares of land by way  of renewal  of  its lease and wheher any excess area  could  be made  available  to  the  other rival  claimants,  like  the appellant and Respondents 3 to 7, who were before this Court as  party  Respondents.  Consequently, TISCOs challenge  to direction  no.   2  did  not raise a  further  question  for consideration  regarding  the correctness of  assessment  of relative  needs of the appellant and Respondents 3 to 7  for chrome ore.  On these aspects, there was no dispute inter se between  TISCO and others.  Of course, there could have been such  a dispute between the appellant, on the one hand,  and the  Central  Government,  on  the  other,  who  were  party Respondents  in the very said proceedings.  There could also be  an  inter  se  dispute in this  connection  between  the appellant as well as other Respondents 3 to 7, who were also Respondents  before  this Court in the earlier  proceedings. It  is  also well settled that there can be res judicata  on issues  raising  questions  inter   se  amongst   contesting Respondents  but  in order that such dispute can be said  to have been adjudicated upon, express decision rendered by the Court on such issues has to be ascertained.  Once we turn to para  30 of the Report in TISCOs case (Supra), we find only five  issues  which  had arisen for  consideration  of  this Court.   They  read  as :  (i) Whether the  High  Court  of Orissa  was justified in striking down the decisions of  the Central  Government  dated  3.6.1993 and  5.10.1993  on  the ground  that the requirement of Section 8(3) of the Act  had not  been met;  (ii) Whether the report of the Rao Committee and  the  decision of this Court in Indian Metals  case  are relevant  for  the consideration of renewal of leases  under Section  8(3) of the Act;  (iii) Whether the High court  and the   Committee  were  justified   in  hearing   prospective applicants while considering the issue of renewal of TISCOs lease;    (iv)  Whether  the   Committee  was  justified  in interpreting  the  concept  of mineral  development  under Section  8(3) of the Act as requiring the assessment of  the captive  mining requirement of different industries and  the

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application  of  the principle of equitable distribution  of mining  leases;   (v) Whether the Central Government in  its order  dated 17.8.1995, had correctly analysed the needs and requirements  of  TISCO  in recommending that its  lease  be renewed over land measuring 406 hectares.

     It  is  obvious that in the aforesaid  proceedings  no issue  arose for consideration as to whether the  assessment of  the  need of the appellant for chrome ore by the  Sharma Committee as accepted by the Central Government by its order dated   17th   August,    1995,    was   an   underestimate. Consequently,  whatever observations might have been made by his Court while dealing with issue no.  4, cannot be said to be  an express decision on the vexed question as to  whether the  assessment  of the need for chrome ore, so far  as  the appellant  is concerned, as approved by the Sharma Committee and  accepted by the Central Government, involved any  error or  not  or  whether it was required to be  re-assessed  for upward  revision.  It is, therefore, difficult to agree with the contention of learned Senior counsel for the Respondents that  such  an issue was expressly adjudicated upon by  this Court  in  the aforesaid decision and the findings  thereon, therefore,  could  not be made the subject matter  of  fresh proceedings  between  the parties.  Not only the  contesting parties  were not heard on this issue but also there was  no final   decision   thereon    inter    se   these   parties. Consequently, it is difficult to appreciate the reasoning in the impugned order of the High Court that the controversy in this  connection raised by the appellant in the present writ petition was finally concluded by this Court and, hence, the writ  petition  raising this contention, was barred  by  res judicata.

     The  first  point  for  determination,  therefore,  is answered  in negative in favour of the appellant and against the Respondents.

     Point No.2:  This takes us to the consideration of the question  whether the judgment of this Court in TISCOs case (supra)  operates  at  least as  constructive  res  judicata against the appellant.  Now it must be kept in view that the appellant  was  also  a party- Respondent in  the  aforesaid appeal  before  this  Court when this Court  considered  the grievance  of TISCO and IDCOL as appellants centering  round second  part  of the order of the Central  Government  dated 17.8.95.   The present appellant as party-Respondent in that proceedings  was only interested in supporting the order  of the  Central  Government  in  so  far as  it  had  held  the appellant  to be entitled to the grant of appropriate  lease on  the basis of the assessment of its requirement of chrome ore.   TISCO and IDCOL had contended before this Court  that the  appellant and other contesting three claimants who were also Respondents, were not required to be granted any lease. Thus,  in  the  said proceedings, the  dispute  between  the contesting  parties was a limited one, namely, whether TISCO and  IDCOL  should  be granted lease of the entire  land  in question or whether the contesting Respondents including the appellant  were entitled to get their assessed  requirements for chrome ore as considered by the authorities upheld while considering  the question of re-grant of appropriate  mining lease  to TISCO.  It becomes at once clear that the inter se dispute  between  the  appellant, on the one hand,  and  the other  contesting  three  claimants on the  other  centering round   the   correct  assessment    of   their   respective

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requirements  of  chrome  ore  was   not  in  the  anvil  of controversy between the contesting Respondents including the appellant  in  those  proceedings.  In fact they all  had  a common  defence  against  TISCO  and   IDCOL  who  were  the appellants before this Court.

     Under these circumstances, the question arises whether the  appellant  as one of the Respondents might have  raised the  further question regarding its claim for further upward revision  of its assessed requirement of chrome ore and also whether  it  ought  to  have  raised  such  a  question  for consideration  of  this Court in those proceedings.   It  is obvious  that in order to attract the bar of Explanation  IV to  Section  11  CPC  and before it can  be  held  that  any subsequent  contention on the point can be treated to be hit by  the bar of constructive res judicata, it has to be  seen whether  such a contention might and ought to have been made the  ground of defence or attack in such former proceedings. Only  then such a matter can be deemed to have been a matter directly   and  substantially  in   issue  in  such   former proceedings.    It  is  difficult  to  appreciate  how   the appellant  as  a  contesting  Respondent  was  of  necessity required  to  raise the defence that the assessment  by  the Sharma  Committee  of its requirement of chrome ore  was  an underestimate  and  was required to be revised upwards  and, hence,  it could have been a valid ground of defence against the  claim of the appellants, namely, TISCO and IDCOL before this   Court.   Without  raising   such  a  contention,  the appellant  could  have  defended and actually  defended  the decision  of the Central Government dated 17th August,  1995 treating  the appellant to be one of the eligible  claimants for  a mining lease in the very same area in which TISCO and IDCOL  were  claiming  such leases to the exclusion  of  the appellant  amongst others.  Equally, such a contention would not  have  been  made a ground of attack  by  the  appellant against  contesting Respondents inter se or even against the State  of  Orissa and the Central Government, who  were  the other  contesting  Respondents  for getting  TISCO  &  IDCOL non-suited  in  their  appeals.   In fact, all  of  them  as Respondents  at that stage were interested in supporting the order  of  the Central Government dated 17th  August,  1995. That  was  their common defence against the claims  of  only contesting  opponents, namely, TISCO and IDCOL who were  the appellants  before this Court.  Consequently, Explanation IV to  Section 11 CPC on the facts of the present case,  cannot be said to be attracted at all.

     It is no doubt true that principle of constructive res judicata can be invoked even inter se Respondents, but it is well  settled that before any plea by contesting Respondents could  be said to be barred by constructive res judicata  in future  proceedings inter se such contesting Respondents, it must  be shown that such a plea was required to be raised by the  contesting  Respondents  to  meet   the  claim  of  the appellant  in  such  proceedings.   If such a  plea  is  not required  to be raised by the contesting Respondents with  a view  to  successfully meet the case of the appellant,  then such  a plea inter se contesting Respondents would remain in the  domain of an independent proceedings giving an entirely different   cause   of  action   inter  se  the   contesting Respondents   with  which  the   appellants  would  not   be concerned.  Such pleas based on independent causes of action inter  se  Respondents  cannot  be  said  to  be  barred  by constructive  res judicata in the earlier proceedings  where the  lis  is between the appellants on the one hand and  all

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the  contesting  Respondents on the other.  In other  words, when  the  appellants  are not concerned with the  inter  se disputes  between  the contesting Respondents such inter  se disputes  amongst  Respondents  would  not give  rise  to  a situation  wherein  it  can  be said  that  such  contesting Respondents  might and ought to have raised such a ground of defence  or  attack  for  decision of the  Court.   In  this connection, it would be profitable to refer to a decision of this  Court in the case of Iftikhar Ahmed & Ors.  vs.   Syed Meharban  Ali and Ors., (AIR 1974 SC 749), dealing with  the principle of res judicata which obviously would include also the  question  of  constructive  res  judicata  between  the co-defendants.   K.K.  Mathew J., speaking for the Court  in that  case made the following pertinent observations :  Now it  is  settled  by a large number of decisions that  for  a judgment  to  operate as res judicata between or  among  co- defendants,  it is necessary to establish that (1) there was a conflict of interest between co-defendants (2) that it was necessary to decide the conflict in order to give the relief which  the  plaintiff claimed in the suit and (3)  that  the Court actually decided the question.

     In  Chandu  Lal v.  Khalilur Rahaman, AIR 1950 PC  17. Lord Simonds said:

     It  may  be  added that the doctrine may  apply  even though  the party, against whom it is sought to enforce  it, did  not  in  the  previous  suit  think  fit  to  enter  an appearance  and  contest  the  question.  But  to  this  the qualification  must be added that, if such a party is to  be bound by a previous judgment, it must be proved clearly that he  had  or  must  be deemed to have  had  notice  that  the relevant  question  was  in  issue  and  would  have  to  be decided.  We  see no reason why a previous decision  should not  operate  as res judicata between co-plaintiffs  if  all these  conditions  are  mutatis   mutandis  satisfied.    In considering  any question of res judicata we have to bear in mind  the  statement  of the Board in  Sheoparsan  Singh  v. Ramnandan  Prasad Narayan Singh AIR 1916 PC 78 that the rule of  res  judicata  while founded on  ancient  precedent  is dictated  by  a wisdom which is for all time and  that  the application  of the rule by the Courts should be influenced by  no  technical considerations of form, but by  matter  of substance within the limits allowed by law.

     The  raison detre of the rule is to confer  finality on   decisions  arrived  at  by  competent  Courts   between interested  parties  after  genuine contest:  and  to  allow persons  who had deliberately chosen a position to reprobate it  and  to blow hot now when they were blowing cold  before would  be  completely to ignore the whole foundation of  the rule.

     (see Ram Bhaj v.  Ahmed Said Akhtar Khan, AIR 1938 Lah 571).

     The  aforesaid principle would squarely get  attracted while  considering the question of constructive res judicata between  the  appellant on the one hand and  the  contesting Respondents  on the other who were all co-Respondents before this  Court  in TISCO and IDCOLs appeals.  Considering  the basic  requirements  of  the principle of  constructive  res judicata  amongst  co-Respondents  in   TISCO  and   IDCOLs appeals,  it  has  to be found out whether  inter  se  those co-Respondents  the  question  of   correct  assessments  of

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present  appellants need for chrome ore was necessary to be agitated  by the present appellant for enabling the Court to give  appropriate relief to TISCO and IDCOL in their appeals before this Court.  It becomes absolutely clear on the facts of  the present case that the grievance of the appellant  in the  present proceedings regarding the alleged error in  the assessment  of  its  requirement  for  chrome  ore  and  the question  whether such assessment was required to be revised upwards,  which may be relevant for deciding the appellants independent  claim against the Central Government as well as the  State  of  Orissa and also vis-a-vis  other  contesting claimants  being  three other Respondents had nothing to  do with the question of granting relief to the appellants TISCO and  IDCOL  in  the  said   earlier  proceedings.   As  this important condition was not satisfied for attracting the bar of  constructive  res judicata against the appellant, it  is not possible to agree with the contention of learned counsel for  the  Respondents that the appellants grievance in  the present  proceedings  was  also  barred  on  the  ground  of constructive  res  judicata,  in the light  of  the  earlier decision of this Court in TISCOs case (supra).

     We  may  also,  in  this   connection,  refer  to  the submission  of  the learned senior counsel Shri  Chidambaram for the Respondent no.6 that for deciding the claim of TISCO for  being  granted  renewal of lease for  the  entire  1261 hectares  of  land or to any lesser extent, the  comparative needs of all the four rival claimants, including the present appellant,  had  to  be  ascertained   and  were,  in  fact, ascertained.   The  said  assessments  made  by  the  Sharma Committee  were  accepted by the Central Government  by  its order  dated 17th August, 1995.  It is this order which  was brought  in scrutiny before this Court in the SLPs of  TISCO and  IDCOL.   Consequently, the land being one and the  same and  there being five rival claimants including TISCO, whose comparative  needs were ascertained by the Committee and the Central  Government,  if  the appellants claim  for  upward revision  of  the  assessment of its need was  accepted,  it would  have directly affected, apart from other Respondents, the Special Leave Petitioner TISCO itself, and consequently, all  the rival claims of contesting parties in the aforesaid proceedings  raised  a common controversy and a lis to  that effect  inter-parties.   It is difficult to appreciate  this contention  for the simple reason that the present claim  of the  appellant  against the contesting Respondents 3-7,  who were   all  parties  before  this   Court  in  the   earlier proceedings, raises a dispute inter se all these Respondents who were before this Court in the said proceedings.  To that extent, it can be said that there was a conflict of interest inter  se  co-Respondents but the short question is  whether for  resolving  this  inter  se conflict,  any  finding  was necessary  so  as to meet the claim of the common  appellant TISCO.   It is, of course, true that TISCO was demanding not only  400  and odd hectares of land as granted to it by  the Central  Government by its order dated 17th August, 1995 but was  also claiming the entire 1262 and odd hectares of land. But once the relative assessments of needs of co-Respondents before  this  Court  were  upheld by this  Court,  the  said finding  was  enough  to non-suit TISCO in its SLP  and  for confining its claim to only 400 and odd hectares of land, as granted  by  the Central Government by its order dated  17th August,  1995,  upholding of the total requirements  of  all contesting co- Respondents.  It was sufficient to reject the claim of TISCO for getting lease of any additional area.  It was not then necessary for the contesting Respondents before

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this Court in the said proceedings to go further and require this  Court to decide their inter se conflict of interest or claims.   That dispute was entirely foreign to the scope  of the proceedings before this Court wherein there was lis only between  TISCO on the one hand who had been granted 400  and odd  hectares of land and the contesting Respondents on  the other including the present appellant whose total assessment of  comparative needs together was a sufficient defence  for rejecting  the  claim of TISCO for any additional  grant  of land.

     In  order to appreciate the nature of the  controversy inter-parties  amongst  rival  claimants   in  the   earlier proceedings  before  this Court, it would be  profitable  to take a simple illustration.

     Suppose A, B and C each claims 100 per cent share in a given  property.  A files a suit against B and C for getting its  claim  adjudicated.  The Trial Court holds on  evidence that  A  has got only 50 per cent share while B and  C,  the contesting  defendants  each has got 25 per cent  share.   A files an appeal seeking 100 per cent share instead of 50 per cent  granted  by the Trial Court.  B, however, claims  more than  25 per cent share vis-a-vis C - say up to 30 per cent. Still  their  inter  se dispute may not be  required  to  be decided  in appellants appeal as even if shares of B and  C together  are retained as held by the Trial Court to 50  per cent in all that would be sufficient to non-suit A in appeal by rejecting his claim for anything more than 50 per cent as the property is one and the same.  Therefore, in appeal of A contesting  Respondents  B and C for opposing A will have  a common defence and it will not be necessary for B to urge or for  the Appellate Court to go further and examine the inter se  dispute  between B and C and find out whether Bs  share was  30  per cent and Cs share was 20 per cent.  Thus  even though  between  these  two contesting Respondents B  and  C there  may  be  a conflict of interest inter se, so  far  as their common opponent A is concerned, it would be sufficient for  them  to  jointly  submit that he is  not  entitled  to anything  more than 50 per cent and for deciding the lis  in appeal  between A on the one hand and B and C on the  other, it would not be necessary for the Court to resolve the inter se dispute between B and C.

     Consequently,  when  appeal of A is dismissed  holding that  he  has  not more than 50 per cent share  and  thereby confirming  the decree of the Trial Court, inter se  dispute between  B  and C about their respective shares can  not  be treated to be barred by constructive res judicata.  Thus the Explanation  IV to Sections 11 CPC would not apply as such a contention  even  though might have been raised by B it  was not  required  to be raised.  It could not be said  that  it ought  to have been raised by B inter se vis-a-vis C to  get As  claim defeated in his appeal.  Such a claim can validly form  subject matter of an independent proceedings between B and  C if and when occasion would arise and dismissal of As appeal  confining his share to 50 per cent in the very  same suit  property would not project any bar of constructive res judicata against B vis-a-vis C when he chooses to claim more than  25  per  cent share in the very same property  in  any future  litigation.   Consequently,  it cannot  be  held  as submitted  by the learned counsel Shri Chidambaram that only because  cake  is one and there were 5  claimants  including TISCO whose needs were ascertained by the Central Government on  the  basis  of the report of Sharma Committee  and  when

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brought in the arena of contest by TISCO the inter se claims between  present appellant and other contesting  Respondents namely  3 to 7 who were all co-Respondents before this Court in the earlier proceedings could be said to have been barred by  constructive  res  judicata on account  of  the  earlier decision  of this Court and could not have been made subject matter of future litigation like the present one.

     It  is  also  not  possible   to  appreciate  how  Mr. Chidambaram  could press in service Order 41 Rule 22 of  CPC which  can  apply  only when the Respondent  in  appeal  can support  the  order  of the lower court on any  ground  held against it.  In TISCOs appeal there was no occasion for the appellant  to support the earlier judgment of the High Court on  any  ground  which could have been said  to  be  wrongly decided  against  it  nor could the  appellant  support  the Central  Governments  order dated 17th August, 1995 on  the ground  that it underestimated its needs.  Such a  grievance would  amount to attacking the order and not supporting  it. The  second  point  for determination,  therefore,  is  also answered  in  the  negative in favour of the  appellant  and against the Respondents.

     Point  No.  3:  So far as this point is concerned,  we have   given   our  anxious   consideration  to  the   rival contentions.   We find that the appellant FACOR stood on the fence  before  this Court when the judgment was rendered  in TISCOs  case  (Supra).   By the time this Court  heard  the aforesaid  cases on 5.10.95 and reserved its judgment, FACOR had already got assessment of its need decided by the Sharma Committee  as well as by the Central Government by its order dated  17th  August,  1995.  Not only  that  but  subsequent thereto  on  23rd  August, 1995, FACOR itself  had  made  an application for mining lease for 462.406 hectares presumably on  the  basis that its requirement was much more than  that assessed by the Sharma Committee and accepted by the Central Government.   If  that  is so, when it was already  a  party Respondent before this Court which took up for consideration on  5th October, 1995 the question whether Sharma  Committee Report  as  accepted by the Central Government by its  order dated  17th  August,  1995  was correct or  not,  the  stand adopted  by  the appellant FACOR before this  Court  assumes importance.

     It  discretely  kept silent and invited this Court  to accept  the  said  decision of the Central Government  as  a whole.   That  is  to say by 5th October, 1995  FACOR  as  a Respondent  in the proceeding before this Court deliberately did   not  choose  to  challenge   the  said  order  on  any permissible  ground  if  it  was   aggrieved  by  the  lower assessment  of its need by the Committee as accepted by  the Central  Government.  On the contrary, its stand before this Court  by 5th October, 1995 was of necessity one of  getting the said order wholly upheld.  And that is exactly what this Court  did in its judgment delivered later on on 23rd  July, 1996  .  It is also pertinent to note that in between  FACOR had  filed  Writ Petition OJC No.1474/96 on  19th  February, 1996  before the Orissa High Court challenging the order  of the Central Government dated 17th August, 1995.  For reasons best known to it, FACOR did not think it fit to get the said writ  petition  transferred  to  this  Court  for  decision. Instead,  it never moved its writ petition for orders before the  High Court even till date.  This conduct of FACOR shows that  before  this  Court it was interested in  getting  the order  of  the  Central Government dated 17th  August,  1995

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wholly  confirmed.   It  never raised any dispute  inter  se among  the other Respondents who were the present contesting Respondents or even against the Central Government which was also  a party to the proceedings before this Court.  It kept mum  on this aspect and invited this Court to wholly confirm the  order of 17th August, 1995 and also successfully got it confirmed  by  this Court.  It was, therefore, too late  for FACOR  to  subsequently turn round and try to go behind  the said  order.  Thus, on the principle of conscious waiver  of its  objections to the order dated 17th August, 1995 it must be  held  that  FACOR  gave   up  its  grievance   regarding assessment  of its requirement of chrome ore as approved  by the Sharma Committee and accepted by the Central Government. Its conduct showed that it was satisfied by the order of the Central  Government  dated  17th August,  1995  recommending grant of lease of appropriate extent of land for meeting the assessed need of the appellant for chrome ore for the coming 50  years.   We, therefore, find considerable force  in  the submission  of the learned Senior counsel for the contesting Respondents  that  FACOR by its own conduct had  waived  its dispute  regarding the correct assessment of its need by the Committee  and as confirmed by the Central Government by its order  dated  17th August, 1995.  It acquiesced in the  said assessment.

     Apart  from the question of acquiescence, FACOR  would also  be liable to be non-suited on the ground of  estoppel. As  noted earlier, it did not get its pending writ  petition OJC  No.1474/96  transferred  for adjudication  before  this Court  when the earlier proceeding wherein by October,  1995 Central  Governments order of 17th August, 1995 was  already considered was awaiting judgment of this Court.  When FACOR, as  a contesting Respondent in SLP filed by TISCO and IDCOL, had  tried to support the order of Central Government  dated 17th August, 1995 before this Court it definitely created an impression in the minds of the other contesting Respondents, including  the State Government and the Central  Government, that it was supporting the order of 17th August, 1995 in its entirety.   These contesting Respondents, on account of  the aforesaid  conduct of FACOR changed their position and could legitimately  presume  that the appellant had  no  grievance against  the  relative  assessment  of the  needs  of  other contesting  parties.  On that clear stance of FACOR  arising out  of  its  conduct before this Court,  Respondents  could legitimately  proceed  on the basis that FACOR was  claiming mining  lease in the light of assessment of its need as made by  the  expert  committee  and   accepted  by  the  Central Government  and hence the balance land would be available to the rest of the contesting Respondents as per their assessed needs.  It is because of the conduct of FACOR that the State Government  relying  on the said basis of the assessment  of relative  needs  of  the four claimants as  upheld  by  this Court,  passed  the subsequent order dated 29th June,  1997. It  is  pertinent  to note that in the  present  proceedings neither   FACOR   nor   any    of   the   other   contesting Respondents/claimants  have made any grievance regarding the slicing down to the extent of 50% of the requirement of four claimants   including  FACOR  as   effected  by  the   State Government  by its aforesaid order.  Thus, the appellant not only  acquiesced  in  the  order of 17th  August,  1995  but allowed  the  State  Government to act on the same,  on  the basis that FACOR was satisfied by the assessment of its need by  the Central Government and also being further  satisfied in  getting at least 50% of its assessed need acted upon  by the  State  Government which can grant appropriate lease  of

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land  to that extent in the first instance.  Therefore,  the order  of the State Government dated 29th June, 1997 must be held  to have proceeded on the admitted stand taken not only by  FACOR but also by the other claimants before this  Court when  it  delivered  its Judgment in TISCOs  case  (Supra). Thus,  because of non- contentious attitude adopted by FACOR before  this  Court  in the proceedings culminating  in  the aforesaid  judgment not only the other three rival claimants but also the Central and the State Governments changed their positions and acted upon the representation flowing from the non-contentious  attitude adopted by the FACOR in connection with  the  order  of Central Government dated  17th  August, 1995.  Not only the said order was supported by FACOR before this Court, but it became successful in getting it confirmed by  this  Court and thereafter the said decision  was  acted upon  by  all the contesting Respondents.  Hence, it is  too late for FACOR to turn round and try to get out of the order of  this  Court.   Therefore,  even   on  the  principle  of estoppel,  FACOR must be held to be bound by the  assessment of its need as approved by the expert committee and accepted by  the  Central  Government and which  assessment  was  got approved  by FACOR itself as a supporting Respondent  before this  Court.   FACOR  cannot  blow  hot  and  cold  in  this connection.   It cannot now submit to this Court differently from  what it submitted in the past when this Court  decided TISCOs  case  (Supra)  and got the assessment of  its  need approved  by this Court.  It cannot turn round and say  that this Court should not have accepted the said assessment.

     When  we turn to the decision of this Court in TISCOs case (Supra), we find all the rival claimants namely, TISCO, IDCOL,  FACOR  and other contesting Respondents 3 to  7  who were  all  parties in the aforesaid proceedings before  this Court,  were  heard in support of their rival claims.   Even though  the  present contention of the appellant  FACOR  may technically  not  be  held to be barred by res  judicata  or constructive res judicata, this Court, after hearing all the contesting parties, including FACOR, appears to have adopted a  package  deal  for  closing   down  the  long   simmering controversy between the parties finally and had brought down the  curtain with a view to fructify the need for  equitable distribution  of this precious mineral chrome ore in  public interest.   In this connection it is profitable to note  the observations  of  this Court in Paragraphs 63 to 68  of  the Report in TISCOs case (supra) at pages 726 :  63.  We have studied  the  Committees report on this issue and  we  find that  most, if not all, of these contentions have been dealt with  in  the report .  We find it difficult to  accept  the contention  that  the  Rao Committee had  not  endorsed  the concept  of  captive  mining  because, as  we  have  already mentioned,  it  does  in  fact do so.   Having  studied  the decision in the Indian Metals case we find that on the issue of  the  requirement  of  captive  mining,  this  Court  had expressly  refrained from giving an opinion on the issue  as it  did  not arise for its consideration;  however,  it  did recommend  that chromite ore be supplied to needy applicants in an equitable manner.  It must be pointed out that nowhere in  the  Rao Report nor in the report of the Committee,  has the  requirement of captive mining been interpreted to  mean that every industry within the State would, by reason of its existence,  be  entitled  to a mining  lease.   The  captive requirement  of an industry is a factor that has to be  kept in  mind  while granting leases but, it is to be done  on  a comparative  scale.  While the Central Government  exercises its  discretion in granting or renewing a lease, it is clear

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that the capacity of an industsry to effectively exploit the ore, will be a predominant consideration.  The submission of the  learned  counsel that none of the other parties  before this  Court required the mineral ore for captive consumption cannot  be  accepted.   This aspect  has  been  specifically examined  by  the Committee at pages 260-263 of its  report. In  order  to  properly  appreciate the  issue  of  captives consumption,  the Committee examined the needs of the  other parties before it.  It stated that each of these parties had manufacturing  industries which produce value-added products and  earn considerable foreign exchange for the country, and it was therefore of the view that an analysis of their total requirement  was  necessary  in  the  interests  of  mineral development  as  also  that  of the nation.   Based  on  the information supplied to it, the Committee thereafter made an assessment,  for a total period of 50 years, of the  captive and  net requirements of ICCL, IMFA, FACOR and JSL.  At page 349  of its report, the Committee has also taken note of the projected  captive  and  net requirements of  Ispat  Alloys. This  being a finding of fact that has been recorded by  the Committee,  we  have to accept that the argument of  captive consumption  does  have a basis in the facts of the  present case.   On the issue of the application of the principle  of equitable  distribution,  we  are  of   the  view  that  the Committee  had,  after having taken note of  the  prevailing situation  and  the problems faced by  needy  manufacturers, taken  the correct view in recommending its  implementation. 64.   We are, therefore, of the view that the Committee  had correctly  interpreted  the relevant material available  for appreciating  the  concept  of   mineral  development  and adopting  the  stance  that it encompassed  the  concept  of captive  mining  as  well  as  the  principle  of  equitable distribution.   5.   Validity of the Central  Government  s order  dated 17.8.1995 which declared that renewing  TISCOs lease  over an area of 406 hectares would satisfy its  needs and  requirements.   65.  The Committee made an estimate  of the  captive  mining  requirement  of each  of  the  parties appearing before it after coming to the conclusion that this was  a  fundamental  guideline  to be  kept  in  mind  while renewing  TISCOs  lease.   To complete  this  exercise,  it relied  upon the submissions of counsel, technical  evidence submitted  by  them and the relevant  technical  information available.   In the case of TISCO, after taking into account all  the  technical grounds and objections put forth by  the learned  counsel  for  TISCO,  the  Committee  came  to  the conclusion  that  its lease should be granted renewal for  a period  of 20 years over a contiguous area of 461  hectares. 66.   By  its order dated 17.8.1995, the Central  Government while  endorsing the finding of the Committee recommended to the  State  Government that TISCOs lease be renewed for  20 years  over a reduced area of 406 hectares.  The reasons for the  reduction were also provided.  67.  The decision of the Committee and the consequent order of the Central Government have  been  assailed by the learned counsel for TISCO  on  a number  of  technical grounds.  Many of these  have  already been dealt with by the Committee.  68.  At this juncture, we think  it  fit to make a few observations about our  general approach  to  the entire case.  This is a case of  the  type where  legal  issues  are intertwined with  those  involving determination  of policy and a plethora of technical issues. In  such a situation, courts of law have to be very wary and must  exercise  their jurisdiction with  circumspection  for they  must  not transgress into the realm of  policy-making, unless  the policy is inconsistent with the Constitution and the  laws.  In the present matter, in its impugned judgment,

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the High Court had directed the Central Government to set up a  Committee to analyse the entire gamut of issues thrown up by  the  present  controversy.  The Central  Government  had consequently  constituted a Committee comprising high  level functionaries  drawn from various governmental/institutional agencies  who were equipped to deal with the entire range of technical  and  long-term   considerations  involved.   This Committee,  in reaching its decision, consulted a number  of policy  documents  and approached the issue from a  holistic perspective.   We  have  sought to give our opinion  on  the legal  issues  that arise for our consideration.   From  the scheme of the Act it is clear that the Central Government is vested with discretion to determine the policy regarding the grant or renewal of leases.  On matters affecting policy and those  that  require  technical  expertise,  we  have  shown deference  to,  and  followed the  recommendations  of,  the Committee  which is more qualified to address these issues. (Emphasis supplied)

     A  mere look at the aforesaid observations, leaves  no room  for  doubt that once the assessment of rival needs  of parties  seeking  mining  lease from the very same  area  in Sukinda  Valley  was  done by the expert committee  and  was approved not only by the Central Government but also by this Court,  the dispute inter se was sought to be put to an  end on  the  principle of equitable distribution of such a  rare and costly mineral.  This package evolved by this Court must be held to be binding on all the contesting parties, leaving aside  the  question  of res judicata  or  constructive  res judicata.   Once  this was the intention of this  Court,  it must  be held that a clear signal was given by this Court to the  authorities  concerned that the assessment of  relative needs  of  rival claimants for the costly mineral should  be accepted   as  a  binding  yardstick   and  in  that   light appropriate areas out of the very same Sukinda Valley should be  carved  out for these claimants including  FACOR.   This intention  as reflected by the judgment of this Court  would disentitle  the  appellant  to go beyond the sweep  of  this judgment  on  any  technical ground.   This  conclusion  is, therefore, an additional ground on which the appellant would not  be entitled to get any relief from us under Article 136 of the Constitution of India.  Otherwise, it would amount to upsetting the entire apple cart and would result in denuding the  judgment  of this Court of its real content,  direction and efficacy.  After the Courts judgment in TISCOs appeal, the  only  thing left for the Respondent authorities was  to proceed  further in the light of the decision of this  Court and  also in the light of the confirmed order of the Central Government  dated 17th August, 1995.  We have already  noted earlier  that  none  of  the contesting  parties  before  us namely,  FACOR on the one hand and Respondents 3 to 7 on the other  has challenged before us the subsequent order of  the State  Government  by which the relative assessment  of  the needs  of  these claimants was sliced down by 50  per  cent. Hence  none of them can get rid off the same.  Of course, as per the said order of the State Government, it will be bound to  consider along with the claims of others, the  remaining claims  of the appellant and other contesting Respondents  3 to  7  for being granted additional land for  mining  leases from the very same Sukinda Valley for meeting the balance of 50  per  cent  of  their   assessed  needs  as  per  Central Governments order dated 17th August, 1995.  In fact, in the light  of  the  aforesaid order dated 29th June,  1997,  the State  of Orissa has already appointed a committee under the Chairmanship  of  Sri  Jagadish   Prasad  Dash,  IAS,  Addl.

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Secretary  to  Government,  Steel and Mines Deptt.,  by  its order  dated  16.11.1998  for doing  the  needful.   Learned counsel  for the State of Orissa made it clear that the said Committee  will  also consider the question of  granting  of further mining leases of chromite in Sukinda Valley to FACOR and  the remaining three claimants namely, IMFA, ICCL, ISPAT and  M/s.  Jindal Strips, as mentioned in the order of  27th June  , 1997.  When we turn to the said order, we find  that after  slicing  down the assessed need of all the  aforesaid four  claimants by 50 per cent, the total area which will be earmarked  for them out of the available 855.476 hectares of land  will  be  419.18  hectares.   Meaning  thereby,  on  a conjoint  reading  of the order of the State  Government  of Orissa  and  its Notification dated 16.11.98 appointing  Sri Jagadish  Prasad Dash as Chairman of the Committee to assess the  requirement  of  chrome ore of  needy  applicants,  the following  picture  emerges.  From 855.476 hectares of  land being  available in Sukinda Valley for grant of mining lease to  other  claimants  after taking out 406  hectares  to  be re-granted  to TISCO, 419.181 hectares will have to be  kept reserved for the aforesaid four claimants, namely, FACOR and Respondents  3  to  7  as per  the  Order  dated  29.6.1997. Therefore,  the  balance  of the available area  in  Sukinda valley  for  grant  of  mining leases  to  other  applicants including  the  aforesaid four applicants would  be  436.295 hectares.    This   area  will  have   to  be   taken   into consideration  by Sri Jagadish Prasad Dash as well as by the State  of  Orissa  for  granting of mining  lease  to  other claimants  whose applications are pending scrutiny before it and  while  doing  so,  the said Committee  and  the  Orissa Government  will  also have to take into  consideration  the remaining  50  per cent assessed needs for further grant  of mining leases to FACOR as well as Respondents 3 to 7 as made clear  by the Orissa Government Order and reiterated  before us by its learned counsel.  This is the maximum relief which can be made available to the appellant FACOR in the light of the  earlier decision of this Court in TISCOs case  (Supra) and  which was invited by FACOR itself by keeping mum before this  Court while it was called upon to confirm the  Central Government Order dated 17th August, 1995 in its entirety.

     We  have  also  to keep in view the  peculiar  conduct exhibited  by the appellant in connection with the order  of the  Central Government dated 17th August, 1995.  This  very order  was  hotly contested before this Court by  TISCO  and IDCOL.   The  appellant along with Respondents 2 to  7  were contesting  Respondents.   At  this stage all of  them  were sailing  in  the same boat, they had common defence  against TISCO  and  they  were successful in getting  their  defence accepted  by  this  Court.  The result was that  the  entire order  of the Central Government was confirmed by this Court with  the assistance of contesting Respondents including the appellant.   The  assessment of relative needs of  appellant and  contesting Respondents was upheld by this Court as seen earlier  by endorsing the findings of fact as arrived at  by the  Sharma Committee and accepted by the State  Government. The  appellant by inviting this Court to confirm that  order again  turned  round subsequently and adopted a  volte-face. It  is  also  interesting to note that after this  Court  in TISCOs case heard the parties in October, 1995 and reserved its  judgment which was delivered nine months thereafter  on 23.7.96  and  in  the mean time, when the  appellant  itself thought  it fit to raise the dispute about the assessment of its  need as accepted by the Central Government by its order dated  17th  August,  1995  by  filing  a  substantive  Writ

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Petition  in  the  Orissa High Court on 16.12.96  being  OJC 1474/96 nothing prevented the appellant from at least filing an  I.A.  in this Court for getting clarification  regarding reserving  its right to challenge the order of 17th  August, 1995  on the ground raised in writ petition OJC  No.1474/96. If  that  would have been done this Court would have  either reserved  it that liberty when it ultimately pronounced  its judgment  on  23.7.96  or it would have  rejected  the  said liberty.   In  either case the appellant would have got  its claim either kept open for future adjudication or would have got  it  expressly barred.  The appellant, for  the  obvious reasons,  was not inclined to take that risk and sat on  the fence, allowed its writ petition OJC No.1474/96 to remain in suspended  animation  and allowed this Court to  uphold  the Central  Governments  order dated 17th August, 1995 in  its entirety.   Even  thereafter the appellant by filing  review proceedings could have got clarification from this Court for preserving  its present dispute regarding correct assessment of  its  need for adjudication before the Orissa High  Court where  his writ petition was pending.  Even that effort  was not  made  presumably because the appellant did not want  to take such a risk.  If its Review petition was dismissed, its pending  petition  in the Orissa High Court challenging  the very same order of the Central Government dated 17th August, 1995,  would have been rendered incompetent.  Thus at  every step,  the appellant, for reasons best known to it, did  not think  it fit to raise this dispute before this Court  prior to  its decision dated 23.7.96 and even subsequent  thereto. Therefore,  there is no escape from the conclusion that  the appellant had deliberately waived its challenge to the order of  Central Government dated 17th August, 1995 in so far  as it  had upheld the assessment of its need for chrome ore and for grant of appropriate mining lease on that basis.

     In  this  connection, we may also usefully refer to  a decision  to  which  our attention was  invited  by  learned senior  counsel, Shri Chidambaram for Respondent No.  6.  In the case of House of Spring Gardens Ltd.  & Ors.  vs.  Waite &  Ors.,  1990  (2) All England Reports, 990, the  Court  of Appeal  in England had to consider the question of  estoppel which  would  be binding on all co- defendants in an  action filed  by the plaintiff in English court.  In that case  the plaintiff  before  the English Court had earlier obtained  a money decree against all the three defendants from the Irish Court.   The  said  decree was sought to  be  challenged  in Ireland  by Defendant Nos.1 and 2 on the ground that it  was obtained  by  fraud.  In the said second proceedings  before the  Irish Court, the third defendant, Mr.  Macleod, was not a  party,  though his interest was common to the  other  two defendants  who  had  challenged the Irish Court  decree  in their  suit  on the ground of fraud.  The  said  proceedings ultimately  failed  in the Irish Court and their appeal  was also dismissed.  Thereafter, the plaintiff filed proceedings in the English Court under RSC Order 14 to enforce the Irish Courts  judgment  obtained  by him against  all  the  three defendants as a debt at common law.  In the said proceedings in  the English Court, Defendant No.3 Mr.  Macleod took up a contention  that  the  earlier decision of the  Irish  Court rejecting the plea of fraud of the plaintiff was not binding on  him  as  he was not a party to the said  proceedings  in Ireland  challenging the plaintiffs decree on the ground of fraud.   It was held by the Court of Appeal that such a plea was not available to Mr.  Macleod on the ground of estoppel. It  was observed that where common defendants were  estopped from  pleading that a foreign judgment had been obtained  by

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fraud  in  consequence of a judgment in a  separate,  second action  in the foreign jurisdiction, a defendant who had not been  a  party  to  the second  action  would  nevertheless, because  of the privity of interest between himself and  the other  defendants,  be bound by the estoppel if he had  been aware  of the proceedings and would have been entitled to be joined  with them but had decided without explanation not to apply for being so joined.  Accordingly, the third defendant was  privy to the estoppel binding the other defendants  and was  therefore  bound  by the decision in the  second  Irish action  that  the  prior judgment had not been  obtained  by fraud.   The  Court of Appeal, spoke  through  Stuart-Smith, L.J.   Concurring  with  the said decision,  McCOWAN,  L.J., observed  as  under :  In my judgment, the wording of  that paragraph of Mr.  Macleods defence was tantamount to saying :   Let  the Irish courts decide the issue of  whether  the judgment was obtained by fraud, and until they have, let not this  action proceed. In taking that line Mr.  Macleod was, I  consider,  not  merely  acquiescing  in,  but  positively encouraging  a decision of this issue by the Irish Courts in an  action  to  which he was not a party.  That was  a  very clever  tactic.   If the judgment of Costello J.   were  set aside  as  against  the  Waites,  he  could  certainly  have benefitted  because  in practical terms it could never  have been  enforced  against  him.  If, on the  other  hand,  the Waites failed in their Irish action, he could do what he has in  fact  now done, which is to say that he is not bound  by the  decision in that action since he was not a party to it, and  to  have another bite at the cherry of  alleging  fraud against the plaintiffs.

     The  aforesaid  observations  clearly   apply  to  the present case in which the appellant stands still on a weaker footing.   In the aforesaid case before the Court of  Appeal in  England  defendant  Macleod was not a party  before  the Irish  Court  in  the  second action but  his  interest  was represented  by  other co-plaintiffs, while in  the  present case,  the  appellant  was very much a party  Respondent  in TISCOs  appeal.   It took a calculated chance of getting  a favourable  decision of this Court along with Respondents  3 to  7 and got the order of the Central Government dated 17th August,  1995 confirmed against TISCO but in the process the entire  order favouring the appellant and Respondents 3 to 7 was upheld by this Court.  Once the appellant took up such a stand  regarding  validity of the Central Governments  order dated  17th August, 1995, it cannot subsequently oppose  the very  same  order,  which  it  was  responsible  in  getting confirmed  from this Court.  Such a clever tactic which  was not  countenanced  by the Court of Appeal in  the  aforesaid case cannot also be permitted to be adopted by the appellant on the facts of the present case.

     As  we  have  already held earlier,  even  though  the technical  bar of res judicata and constructive res judicata may  not apply on the facts of the present case to  non-suit the  appellant,  at  least on the grounds  of  estoppel  and acquiescence as well as waiver, the appellant can be said to have given up its challenge regarding upward revision of the assessment of its need as arrived at by the Expert Committee and as confirmed by the Central Government when it saw to it by  keeping  mum  that  the  entire  order  of  the  Central Government  dated  17th August, 1995 got confirmed  by  this Court in TISCOs appeal.

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     Though the appellants present grievance is held to be barred  on the ground of estoppel, waiver and  acquiescence, it  cannot, however, be held that it is barred by delay  and laches, as the appellant had rightly or wrongly but promptly challenged  the  order of the Central Government dated  17th August,  1995 before the Orissa High Court not by one but by three  writ  petitions,  first of which was  filed  on  16th February, 1996 being OJC 1474/96.

     Once  this conclusion is reached against the appellant on  the  aforesaid  grounds,  the alternative  plea  of  Mr. Nariman   that  appellants  claim  be  considered   to   be premature, necessarily fails.

     The  3rd  point  for   determination,  therefore,   is accordingly  answered  in affirmative against the  appellant and in favour of the Respondent.

     Point   No.   4:   It  is   true  that   the   Central Governments  order  dated 15th August, 1995 recommended  to the State Government to give the entire 855 hectares of land after excluding the portion earmarked for TISCO, to the four claimants  namely,  the  appellant and Respondents 3  to  7. However,  the  State Government by its decision  dated  29th June,  1997, took the view that 50% of the available area of 855.476  hectares  be  reserved for consideration  of  other parties  including  the  captive consumers who have  set  up industries  inside  the State and recommended grant  in  the first  instance  of  the  balance  50% of  the  area  to  be distributed   amongst  the  four   parties,   namely,   M/s. IMFA/ICCL,  M/s.  Ispat Alloys Ltd.  and M/s.  Jindal Strips and  also  the appellant herein.  50% of the area was to  be made  available  to  these  four parties  whose  cases  were recommended  by  the  Government  of  India.   It  was  also observed while assessing the need of the remaining claimants over  50%  area  being withheld by the  Government,  further needs of the aforesaid four parties could also be taken into consideration as noted earlier.

     Now  it becomes at once obvious that despite the whole hearted  approval  of the Central Governments  order  dated 17th  August,  1995 by this Court, in TISCOs case  (Supra), the  State Government in its discretion passed the aforesaid order  dated 29th June, 1997 slicing down the claims of  the aforesaid  four  parties covered by the  Central  Government Order  by  50%.   It is pertinent to note that  neither  the appellant  nor any of the contesting Respondents 3 to 7 have thought it fit to challenge the aforesaid order of the State Government  to  the extent it sliced down their  claims  for allotment  by  50%  from  the   available  area  of  855.476 hectares.   Mr.   Shanti  Bhushan,  learned  senior  counsel appearing for the contesting Respondents 3 and 4, as well as other  senior counsel appearing for remaining Respondents  5 to  7 submitted that they did not think it fit to  challenge the  aforesaid  slicing  down  by 50% of  their  demand  for allotment  of  leases only on the principle that a  bird  in hand  is  worth two in the bush.  It is also required to  be noted  that the learned senior counsel, Shri Nariman in  his turn,  also  did not challenge the order of 29th June,  1997 regarding  slicing  down  of appellants need by  50%.   The challenge  to  the said order was mounted by  the  appellant before  the  High  Court  on an  entirely  different  ground namely,  that  its  need  for chrome ore was  more  than  as assessed and therefore, the Central Governments Order dated 17th  August,  1995  and the consequent order of  the  State

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Government  dated 29th June, 1997, were not legal and  valid but  no alternative challenge was mounted or pressed  before us  in connection with the State Governments Order of  29th June, 1997 on the aspect of slicing down or reserving 50% of 855.476  hectares  for  consideration  of  claims  of  other parties  including the captive consumers.  As seen  earlier, this challenge of the appellant about assessment of its need by  the  Central Government is not maintainable.   We  must, therefore, hold that the order of the State Government dated 29th  June,  1997  slicing down up by 50% the  need  of  the appellant  as  assessed and also reserving the remaining  50 per  cent  of 855.476 hectares of land for consideration  of claims  of other parties including the captive consumers and also permitting consideration of claims of the appellant and Respondents  3 to 7 for meeting their remaining 50% assessed need  will  remain binding on the appellant as well  on  the contesting  Respondents 3 to 7.  The said order also  cannot be  said  to  be in conflict with the order of  the  Central Government dated 17.08.1995.  This point, therefore, is held in  affirmative  against  the  appellant  and  also  against Respondents  3  to 7.  In view of our aforesaid decision  on point  No.  4, the grievance made by learned senior  counsel Shri  Desai  in the Intervening Application No.  1  of  1999 does  not  survive for consideration.  The said  I.A.   will stand disposed of accordingly.

     Point  No.   5:  In view of our decision on Point  No. 3,  it  is  obvious  that  it is not  a  fit  case  for  our interference under Article 136 of the Constitution of India. No useful purpose can be served by remanding this proceeding for  a  fresh  decision of the High Court  even  though  the appellant succeeds in showing that the grievances made by it regarding the alleged error in assessment of its need by the Expert  Committee and as confirmed by the Central Government by  its Order dated 17th August, 1995 was not barred by  res judicata  or  constructive  res judicata.  It  is  for  this simple  reason  that  the appellant by its own  conduct  has disentitled  itself from getting any fresh decision on  this aspect  from  any  court.  In the light of our  findings  on Point  No.3,  Point  No.5  is, therefore,  answered  in  the negative  against  the  appellant  and   in  favour  of  the Respondents.

     Point No.6:  As a consequence of our decision on Point Nos.3,  4  and 5, the inevitable result is that this  appeal fails  and  will stand dismissed.  However, it is  clarified that  the  State  of  Orissa will carry  out  the  remaining exercise  pursuant to its order dated 29th June, 1997 at the earliest  and will see to it that Shri Jagadish Prasad  Dash Committee  constituted by it on 6.11.1998 also completes its exercise  in  connection with the remaining area of  436.295 hectares  out  of  1261.476  hectares, after  in  the  first instance  granting leases as per its order dated 29th  June, 1997 in the reserved area of 419.18 hectares out of 1261.476 hectares  for  mining  of  Chromite in favour  of  the  four parties  i.e.   the  appellant  and Respondents 3  to  7  in Sukinda valley of Jaipur District.

     It  is obvious that the grant of mining leases to  the extent of 50% to the appellant and Respondents 3 to 7 as per Order  of  the Orissa Government dated 29th June, 1997  will remain binding between the parties.  However, any additional leases granted by the State of Orissa pursuant to the Report of  Shri Jagadish Prasad Dash Committee or even otherwise to

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the  appellant  and  Respondents 3 to 7 to  meet  wholly  or partially  their remaining 50 per cent of assessed needs  as per  Central Governments order dated 17th August, 1995 will be  subject  to  the  revisions, if any,  by  the  aggrieved parties  before  the Central Government in  accordance  with law.

     There  will  be no order as to costs in the facts  and circumstances of the case.