TMI Blog2013 (2) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... . By this common judgment, we propose to dispose of both the aforesaid appeals. The Appeal arising out of Special Leave Petition (C) No. 23141 of 2007 has been filed challenging the order dated 31st August, 2007 rejecting the preliminary issue raised by the appellant in OJC No.3662 of 2002. The Appeal arising out of Special Leave Petition (C) No. 5130 of 2009 has been filed challenging the final order dated 24th November, 2008 in OJC No. 3662 of 2002 upholding the order dated 27th September, 2001. CIVIL APPEAL NO.1013 OF 2013 [Arising out of SLP (C) No. 23141 of 2007] 3. We may notice here briefly the facts as noticed by the High Court. 4. On 27th October, 1953, the appellant M/s. Kalinga Mining Corporation applied to the Government of Orissa for a prospecting licence. This was granted by the State Government on 15th September, 1961 in respect of an area of 480 acres in Kalaparbat Hill range of Keonjhar district subject to compliance of lease stipulations. The appellant applied for the grant of mining lease also for iron manganese ore over 420 acres in Kalaparbat Hill range of Keonjhar district. As the same was not considered by the State Government, the appellant filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Mines and Minerals (Development and Regulation) Act, 1957. The Central Government by its order dated 18th January, 1972 refused to accord its approval in favour of respondent No.10. It appears that the State Government on 25th April, 1972 again requested the Central Government for grant of approval to its recommendation made in favour of respondent No.10 Dr. Sarojini Pradhan. However, by its letter dated 29th December, 1972, the Central Government directed the State Government to reject the mining lease application of Dr. Pradhan. Thereafter on 8th June, 1973, the State Government rejected all pending mining lease applications including the application of appellant and Dr. Sarojini Pradhan. 7. Challenging the aforesaid order, both the appellant and Dr. Pradhan filed the revision petitions before the Central Government. The Central Government by its order dated 2nd May, 1978 rejected the revision filed by Dr. Sarojini Pradhan but allowed the revision filed by the appellant with a direction to the State Government to pass a fresh order on merits. 8. It appears that Dr. Pradhan filed a writ petition being OJC No.829 of 1978 challenging the order passed by the Central Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. An application has now been filed stating that the legal representatives could not appear before the Central Government on that day due to difficulties stated in the petition. The counsel for the parties now agree that the legal representatives of the deceased petitioner would appear before the Central Government on the 6th of June, 1988 on which day a date of hearing shall be fixed. The Misc. case is disposed of accordingly. 11. It may be noted here that in both the Misc. cases the appellant was a party and was heard. 12. In the meantime, another matter being OJC No.1431 of 1980 was filed. In the aforesaid matter, a Division Bench of the High Court rejected the contentions of the State that on the death of Dr. Pradhan, her writ petition will abate. 13. Thereafter on 11th May, 1990, the Central Government conveyed to the State Government its approval of grant of mining lease in favour of the legal representatives of Dr. Pradhan. The appellant, however, claims that no such order, with reasons, was made available to the parties. In view of the aforesaid approval, the State Government by its order dated 24th May, 1990 asked the legal representatives of Dr. Pradhan to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and remanded the matter for fresh consideration. Relying on the order passed in OJC No.1269 of 1982, it was held that on the death of the original applicant Dr. Pradhan, her application for mining lease does not abate. The Court also held that this being a pure question of law, the issue has become final and shall not be reopened in the hearing before the Central Government. 18. The appellant challenged the order dated 2nd July, 2001 passed in OJC No.11537 of 1999 by filing SLP (C) No.13556 of 2001 on the issue of allowing the legal representatives of the deceased to be substituted in place of the latter. This was dismissed in limine on 24th August, 2001. Thereafter on 26th September, 2001, the Central Government approved the recommendations of the State Government for grant of mining lease in favour of legal representatives of Dr. Pradhan. 19. The appellant filed a fresh OJC No.3662 of 2002 (writ petition) challenging the grant of lease dated 27th September, 2001, on the basis that it constituted a new cause of action. At this stage, according to the appellant, another significant change took place in that on 9th September, 2003, this Court set aside the order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation viz. : (a) Is Rule 25A, as introduced in the Mineral Concession Rules, 1960, w.e.f. 1st April, 1991, by way of amendment dated 20th February, 1991, clarificatory in nature, and hence retrospective, or is it only prospective in nature? (b) Whether the dismissal of the SLP on 24th August, 2001, filed by the appellant against the judgment of the High Court dated 2nd July, 2001 in OJC No. 11537 of 1999 would attract the principles of res judicata, so as to disentitle the appellant from urging the invalidity of the application of the legal heirs in place of the deceased Dr. Pradhan, in the pending proceedings in OJC No. 3662 of 2002, the judgment which is the subject matter of the present appeal? 23. We have heard the learned counsel for the parties at length. 24. Mr. K.K. Venugopal, learned senior counsel appearing for the appellant, submitted that the dismissal of the earlier SLP on the preliminary issue will not act as a bar against the SLP challenging the order passed at the final stage. He submitted that in SLP (C) No. 13556 of 2001, this Court did not entertain the challenge against the order of the High Court permitting the legal heirs of Dr. Pradhan to be subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid judgment would necessarily apply to any pending case where the issue is a live one. The contrary interpretation placed on Rule 25A by the High Court in the earlier proceedings would be of no consequence. An application which is non est and the order made thereon in favour of the legal heirs is a mere nullity, in the eyes of law, and cannot be treated as a valid application in the pending writ petition OJC No. 3662 of 2002. Mr. Venugopal further submitted that the legal position was made clear by this Court even before insertion of Rule 25A in the case of C. Buchi Venkatarao Vs. Union of India Ors. (1972) 1 SCC 734 Para 14 . 26. Mr. Dushyant Dave, learned senior counsel for the respondent No. 10 submits that in the facts and circumstances of this case, it is not open to the appellant to question the status of the LRs of respondent No. 10 on the basis of the order in the case of Saligram Khirwal (supra). 27. Learned senior counsel submits that the case of Saligram Khirwal (supra) is merely an order and not a judgment. There is no declaration of law in the case of Saligram Khirwal (supra). In fact, this Court has not interpreted Rule 25A of the Rules in the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the claim of the appellant is clearly barred by the principle of res judicata. He has relied upon the case of Satyadhyan Ghosal Ors. Vs. Deorajin Debi (Smt.) Anr. AIR 1960 SC 941 29. We have considered the submissions made by the learned counsel for the parties. 30. At the outset, it needs to be noticed that the parties herein have been competing for the same mining lease for the past half-a-century. A perusal of the facts narrated herein above would also show that there have been several rounds of litigation between the parties. Although, we have noticed all the facts inextenso for the purpose of deciding the issue of res judicata, it is necessary to recapitulate the foundational facts with regard to the aforesaid issue of res judicata. On 3rd September, 1971, the State Government passed an order recommending the grant of mining lease in favour of respondent No. 10. Since the Central Government did not approve the recommendation made by the State Government, on 8th June, 1973, it rejected all pending mining lease applications including the application of the appellant and Dr. Sarojini Pradhan. On 2nd May, 1978, in a revision petition filed by the appellant challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver to the standing counsel for the Central Government. Certified copy of this order be granted in course of today, if an urgent application is made therefore. 31. It appears that the LRs of respondent No. 10 failed to appear before the Central Government on 16th May, 1988. Therefore, they filed another Misc. Case No. 1977 of 1988 seeking another opportunity to appear before the Central Government. Therefore, the High Court by its order dated 11th May, 1988 directed the LRs of Dr. Sarojini Pradhan to appear before the Central Government on 6th June, 1988. As is evident from the order, which we have reproduced in the earlier part of this judgment that the direction was issued on the agreement of the counsel for the parties. In the meantime in another matter being OJC No. 1431 of 1980, the Division Bench rejected the contention of the State that on the death of Dr. Sarojini Pradhan, her writ petition will abate and the substitution of the LRs of Dr. Sarojini Pradhan was allowed. In accordance with the directions issued by the High Court in the orders dated 28th April, 1988 and 11th May, 1988, the LRs of respondent No. 10 duly appeared before the Central Government. Upon hearing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and pass a fresh speaking order giving reasons for the decision after hearing all the concerned parties. This was the second time when the locus standi of the LRs of respondent No. 10 was accepted judicially. It is noteworthy that the appellant accepted the aforesaid judgment. It was not assailed either by way of a review petition before the High Court or by way of a Special Leave Petition before this Court. In such circumstances, it would be difficult to accept the submissions of Mr. Venugopal that the High Court has erroneously accepted the plea raised by the LRs of the respondent that the claim of the appellant is barred by res judicata. Considering the principle of res judicata, this Court in the case of Mohanlal Goenka Vs. Benoy Kishna Mukherjee (supra) held as under: 22. There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates a res judicata. 32. This court also held that a wrong decision by a court having jurisdiction is as much binding between the parties as a ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly speaking, the dismissal of the SLP would not result in the merger of the judgment of the High Court in the order of this Court, the same cannot be said to be wholly irrelevant. The High Court, in our opinion, committed no error in taking the same into consideration in the peculiar facts of this case. Ultimately, the decision of the High Court was clearly based on the facts and circumstances of this case. The High Court clearly came to the conclusion that the appellant had accepted the locus standi of the LRs of Dr. Sarojini Pradhan to pursue the application for the mining lease before the Central Government, as well as in the High Court. 35. In view of the conclusions recorded by us above, it is not necessary to express an opinion on the interpretation of Rule 25A of the Mineral Concession Rules, 1960. In any event, the judgment in the case of Saligram (supra) has concluded that the Rule would have only prospective operation. The legal position having been so stated, it is not necessary for us to dilate upon the same. CIVIL APPEAL NO.1014 OF 2013 [Arising out of SLP (C) No. 5130 of 2009] 36. This now brings us to the second appeal arising out of Special Leave Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court held that legal heirs of Dr. Pradhan can be substituted in her place, the writ petition was kept pending for final disposal on the issue of as to whether the orders granting the lease in favour of her legal heirs had been passed in violation of rules of natural justice. 38. The High Court in the impugned judgment took note of the submissions made by Dr. Devi Pal, learned senior counsel appearing for the appellant. The main thrust of the argument of Dr. Pal was that the matter had been heard by Mr. S.P. Gupta, Joint Secretary on 28th August, 2001 and 13th September, 2001, but has been decided by Dr. R.K. Khatri, Deputy Secretary of the Government of India, Ministry of Coal Mines vide order dated 27th September, 2001, and the said order had been communicated by Mr. O.P. Kathuria, Under Secretary to the Government of India. The submissions made in the High Court have been reiterated before us by Mr. Krishnan Venugopal. He submits that the approval granted in favour of legal heirs of Dr. Sarojini Pradhan causes adverse civil consequences to the appellant. Such an order could only have been passed by the officer, who had heard the parties. The order, however, has been pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties had to be judged on the criteria specified under Section 11(3) of the MMDR Act. The criteria under the aforesaid section include :- (a) special knowledge or experience in prospecting operations or mining operations; (b) the financial resources of the applicants, (c) nature and quality of technical staff employed or to be employed by the applicant, (d) the investment which the applicant proposes to make in the mines. Even though the written statements submitted by the parties about their financial and technical capabilities were sent to the State Government for verification, a separate report was sought from the Indian Bureau of Mines which was confined only to two years: 1999-2000 and 2000-2001. The impugned order dated 27th September, 2001 has been passed primarily based on the report of the Indian Bureau of Mines for the aforesaid two years. The order is clearly vitiated as it is based on extraneous considerations. In support of this, the learned senior counsel relies on Commissioner of Income Tax, Bombay Ors. Vs. Mahindra and Mahindra Limited Ors. (1983) 4 SCC 392 The order passed by the Central Government is contrary to the directions issued by the High Court on 2nd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the legal heirs of respondent No. 10, had made detailed submissions controverting the submissions made on behalf of the appellant. 42. It is submitted that the submissions made by the appellant that the Central Government s order is not in consonance with Article 77, is wholly unfounded and devoid of merits. This ground was not even pleaded in the writ petition before the High Court. In fact, no such submission was made at the hearing of the writ petition by the High Court. No grievance is made in the SLP that such a submission was made before the High Court and that it was not considered. The submissions raised by the appellant at this stage being a mixed question of law in fact ought not to be permitted to be raised in the present proceedings. This apart, he submits that the judgment in the case of Bachhittar Singh (supra) was rendered on the basis of its own facts. Furthermore, in that case, the order signed by the Minister was not communicated to the parties and therefore, it was held that there was no effective order. In the present case, the order was passed on the basis of the approval granted and conveyed in the manner prescribed under law. With regard to the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that judicial review of the administrative action/quasi judicial orders passed by the Government is limited only to correcting the errors of law or fundamental procedural requirements which may lead to manifest injustice. When the conclusions of the authority are based on evidence, the same cannot be re-appreciated by the court in exercise of its powers of judicial review. The court does not exercise the powers of an appellate court in exercise of its powers of judicial review. It is only in cases where either findings recorded by the administrative/quasi judicial authority are based on no evidence or are so perverse that no reasonable person would have reached such a conclusion on the basis of the material available that the court would be justified to interfere in the decision. The scope of judicial review is limited to the decision making process and not to the decision itself, even if the same appears to be erroneous. This Court in the case of Tata Cellular Vs. Union of India (1994) 6 SCC 651 upon detailed consideration of the parameters within which judicial review could be exercised, has culled out the following principles : 70. It cannot be denied that the principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an appellate authority substituting the judgment for that of the administrator. Applying the aforesaid principles, the High Court has examined the entire record and has concluded that the decision making process is not flawed in any manner, as canvassed by the appellant. The High Court noticed that the record was duly produced by Mr. J.K. Mishra, learned Assistant Solicitor General. It was also noticed that throughout the proceedings, no reference has been made to any particular officer or post or any designation. The order dated 11th July, 2001 passed by the High Court merely directed that they shall appear before the Central Government on 18th July, 2001. Order dated 14th August, 2001 clearly indicates that the matter was being heard in view of the directions given by the High Court in OJC No. 11537 of 1999 and secondly, notice was issued for hearing on 28th August, 2001. The record further indicated that the matter was heard by Mr. S. P. Gupta, Joint Secretary for two days i.e. on 28th August, 2001 and 13th September, 2001. Both the parties had been given opportunity to place on the record any documents and written submissions in support of their claim. It was also appare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration to the grievance of the appellant raised in the writ petition with respect to the merits because it assumed that the appellant had attempted to bye-pass the alternative remedy of revision available to it under Section 30 of MMDR Act read with Rules 54 and 55 of the Rules. We are of the considered opinion that the aforesaid submission of the learned counsel is wholly misplaced. The High Court merely noticed that the matter had been referred back to the Central Government on a limited issue. Therefore, it was not open to the Central Government to re-open the entire controversy. It has been observed by the High Court that such a power would only be available to the Central Government in exercise of its Revisional Powers under Section 30 read with Rules 54 and 55 of the Rules. We also do not find much substance in the submission made by Mr. Krishnan that the order dated 27th September, 2001 is vitiated as it has been passed by an officer who did not give a hearing to the parties. This is clearly a case of an institutional hearing. The direction has been issued by the High Court for a hearing to be given by the Central Government. There was no direction that any particular office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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