Supreme Court of India
FERRO ALLOYS CORPN. LTD. AND ANR.versusUNION OF INDIA AND ORS.
- Citation
- 1999 INSC 124
- Decided
- 22 March 1999
- Disposal
- Dismissed
Holding
The appellant is estopped, has waived and acquiesced to the Central Government's order, and therefore its writ petition is not maintainable.
Summary
Ferro Alloys Corp. Ltd (FACOR) sought a mining lease for chromite in Sukinda Valley after the Central Government, following a high‑power expert committee (Sharma Committee), reduced the area previously granted to Tata Iron & Steel Co. (TISCO). The Committee assessed the needs of all claimants, including FACOR, and the Central Government’s order of 17 August 1995 was upheld by the Supreme Court in TISCO’s case. FACOR later challenged both the Central and State Government orders, arguing that its entitlement was underestimated. The Orissa High Court dismissed the writ petition on the ground of res judicata. On appeal, the Supreme Court held that while the petition was not barred by res judicata or constructive res judicata, FACOR had waived its objection, acquiesced to and was estopped from contesting the Central Government’s order, rendering the petition untenable. The Court also held that the State’s order of 29 June 1997 did not conflict with the Central order and was binding. Consequently, the appeal was dismissed.
Issues considered
- Whether the appellant's writ petition is barred by the doctrine of res judicata.
- Whether the doctrine of constructive res judicata applies to the appellant's grievance.
- Whether the appellant waived its objection and is estopped or acquiesced to the Central Government's order of 17 August 1995.
- Whether the State Government's order of 29 June 1997 conflicts with the Central Government's order of 17 August 1995.
- Whether the Supreme Court may interfere under Article 136 of the Constitution.
Legislation cited
- Code of Civil Procedure, 1908s. Explanation IV to Section 11, s. Order 41 Rule 22
- Constitution of Indias. Article 226
- Indian Evidence Act, 1872s. 115
- Mineral Concession Rules, 1960
- Mines and Minerals (Regulation and Development) Act, 1957s. 8(3)
Subjects
mining leasechromiteres judicataconstructive res judicatawaiverestoppelacquiescenceequitable distributionMines and Minerals Actexpert committeeSupreme CourtArticle 136
Judgment
FERRO ALLOYS CORPN. LTD. AND ANR.
v.
UNION OF INDIA AND ORS.
MARCH 22, 1999
[S.B. MAJMUDAR AND A.P. MISRA, JJ.] B
Constitution of India Article 226 rl'f ,Evidence .jct. 1872, s. 115-
Waiver and estoppel-Central Government granting T/SCO renewal of lease
for mining chromite over an area smaller than original lease-T/SCO
challenging decision by a writ petition in the High Court-Appellant, a rival C
claimant, being made respondent-High Court directing reconsideration of
matter by Central Government-Supreme Court permiting Central Government
to dispose of matter during pendency of TISCO's SLP-Central Government
on basis of report of High Power Expert Coommitte constituted by it issuing
order granting lease to TISCO for reduced area as .well as to Appellant and D
other claimants-Central Government's order upheld by Supreme Court and
TISCO 's appeal dismissed-Appellant making representation to State
Government against Central Government's order and claiming lease for entire
area-State Government recommending to Central Government grant of lease
to appellant to extent of 50% of total requirements as assessed by Committee-
Appellant challenging orders of Central and State Governments-Writ petition E
dismissed by High Court as not maintainable on ground of res judicata and
on merits-Whether appellant's writ petition barred on grounds of waiver,
estoppel and acquiescence-Held, yes; after inviting Supreme Court to confirm
order of Central Government appellant could not subsequently oppose the
very same order; further held, appellant waived objection to and acquiesced
in the order of the Central Government assessing it-Requirements. F
Res Judicata-Constructive res judicata-whether on facts Appellant's
writ petition challenging orders of Central and State government not
maintainable on ground of res judicata or constructive res judicata-Held,
no; issue raised by appellant not expressly adjudicated and no final decision G
thereon inter se the parties in earlier proceedings in the Supreme Court;
further held, question of assessment of appellant's entitlement had nothing to
do with relief granted to TISCO in earlier proceedings-Code of Civil
Procedure 1908, s.11-Constitution of India, Article 226.
Constitution of India, Article I 36-Practice and Procedure-Appellant H ·
49
50 SUPREME COURT REPORTS [1999) 2 S.C.R.
A inviting Supreme Court in earlier proceedings to confirm order of Central
government determining its entitlement to mining area-Appellant's
subsequent writ petition challenging Central Government's order dismissed
by High Court as being not maintainable on ground ofres judicata-Supreme
Court finding writ petition not barred by res judicata or constructive res
judicata-Whether proceeding required to be remanded to High Court for
B fresh decision-Held, no-Appellant by its own conduct was disentitled to
get a fresh decision on the point from any court
Mines and Minerals (Regulation and Development) Act 1957, s.8(3)
r/w Mineral Concession Rules, 1960-Central government making order
C assessing appellant's requirement for mining chromite-State government
subsequently revising appellant's need downwards by half and reserving the
remaining half for consideration of claims of other parties-Whether order
of state government in conflict with order of Central Government-Held, no
Order of Central Government binding on appellant.
'
D In 1973 the State ofOrissa 'State' granted Tata Iron and Steel Co. Ltd.
(TISCO) renewal of lease for mining of chromite over an area of 1261.476
hectares in Sukinda Valley. Prior to expiry of the lease on October 3, 1991;
TISCO applied for a second renewal of the mining lease. On the State's
recommendation, the Central Government conveyed its approval of the said
E second renewal for the entire area for 10 years. Thereafter, the Central
Government reviewed its order and approved the grant of renewal of lease
to only half the area, i.e. 650 hectares.
The order of the Central Government was challenged by TISCO before
the. Orissa High Court in a writ petition to which the rival claimants,
F including the appellant, were party respondents. The High Court took the
view that the entire matter was required to be reconsidered by the Central
Government. Against the High Court's order, TISCO filed a special leave
petition in this court. By an interim direction, this court clarified that the
pendency of the special leave petition would not stand in the way of the
G Central Government disposing the matter in accordance with law. The
appellant made a representation to the Central Government staking its claim
for being_granted mining lease for the entire area of 1261.476 hectares.
On the basis of the report of High Power Expert Committee ('Sharma
Committee') appointed by it, the Central Government by order dated August
H 17, 1995 requested the State to issue orders granting subsequent renewal
FERRO ALLOYS CORPN. LTD. v. U .0 .I. 51
of mining lease for chrome ore in favour of TISCO for 406 hectares for a A
period of20 years and further grant mining lease to the other four applicants,
including the appellant over the balance area of 855.476 hectares on the
basis of proportionate requirements of the chrome ore for these parties as
asse.ssed by the Sharma Committee.
By its decision in Tata Iron & Steel Co. Ltd v. Union of India, (1996) B
9 sec 709 this court, after hearing all parties including the appellant,
- upheld the findings of the Sharma Committee and the consequential order
of the Central Government dated August 17, 1995. It accordingly dismissed
the appeal filed by TISCO.
c
In the meanwhile, the appellant being dissatisfied with the order of the
Central Government dated August 17, 1995 made a representation to the
State on May 26, 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. On June 29,
1997 the State recommended to the Central Government for granting leases D
to the four claimants, including the appellant to the extent of 50% of their
respective requirements as assessed by the Sharma Committee. The
remaining 50% of the area was to be thrown open for consideration of
claims of other claimants.
E
The appellant filed a writ petition in the High Court challenging the
- order dated June 29, 1997 of the State and the earlier order dated August
17, 1995 of the Central Government. The High Court dismissed the writ
petition on the ground that it was barred by resjudicata. lt upheld the orders
of the State and the Central Government on merits.
F
Before this court, the appellant contended that its writ petition was not
barred on the principles of either res judicata or constructive res judicata
as there was no express decision in the earlier proceedings on the appellant's
.entitlement. Also, there was no occasion for the appellant to make a grievance
regarding upward revision of assessment of its needs as the court was G
concerned only with TISCO's claim.
Dismissing the appeal, this Court
HELD : 1.1. The appellant's present grievance was barred on the
ground of estoppel, waiver and acquiescence. [85-F] H
52 SUPREME COURT REPORTS [1999) 2 S.C.R.
A 1.2. The appellant would be liable to be non-suited on the ground of
estoppel. Not only was the order of the Central Government supported by the
appellant 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 was too late for the appellant to turn round
and try to get out of the order of this Court. The appellant was bound by the
B assessment of its need as approved by the expert committee and accepted by
the Central
·I
Government and which assessment was got approved by the
appellant itself as supporting Respondent before this Court. [76-G; 77-G-H)
Tata Iron & Steel Co. Ltd. v. Union of India, [1996] 9 SCC 709,
C followed.
1.3. The appellant had deliberately waived its challenge to the order
of the Central Government dated August 17, 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. It acquiesced in the said assessment. Before this
D Court the appellant was interested in getting the order of the Central
/
Government 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 was, therefore, too late for the appellant to subsequently
turn round and try to go behind the said order. [76-C-D, F]
E
House of Spring Gardens Ltd. v. Waite, (1990) 2 All ER 990, referred
to.
1.4. Once the assessment of rival needs of parties seeking mining
lease from the very same area in Sukinda Valley was done by the expert
F 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.
This conclusion was an additional ground on which the appellant would not
G be entitled to get any relief under Article 136 of the Constitution of India.
[80-H; 81-A-C)
Indian Metals Ferro Ltd. v. Union of India, [1992) Suppl. 1 SCC 191,
referred to.
H 2.1. The writ petition was not barred by res judicata. Whatever
FERRO ALLOYS CORPN. LTD. v. U.O.l. 53
observation might have been made by this Court could not be said to be an A
express decision on the vexed question as to whether the assessment of the
need for chrome ore, so far as the appellant was 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. Such an issue was not expressly adjudicated upon by this Court in B
the aforesaid decision and the findings thereon, therefore, could 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. [68-F-H; 69-A]
2.2. The appellant's grievance in the present proceedings was also not C
barred on the ground of constructive res judicata. The condition for attracting
the bar of constructive res judicature against the appellant was not satisfied.
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 appellant's independent claim against D
the Central Government as well as the State of Orissa and also vis-a-vis
other contending claimants had nothing to do with the question of granting
relief to TISCO in the earlier proceedings. [72-D-E]
lftikhar Ahmed v. Syed Meharban Ali AIR, (1974) SC 749, referred to. E
3. No useful purpose would be served in remanding the proceedings
for a fresh decision of the High Court. The appellant by its own conduct had
disentitled itself from getting any fresh decision from any court on its
grievance regarding the alleged error in assessment of its need by the
expert committee. (87-E] F
4. The order of the State government slicing down by 50% the need
of the appellant as assessed was not in conflict with the order of the Central
Government dated August 17, 1995. It would be binding on the appellant and
other contesting respondents. [88-A-B] G
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1626 of
1999.
From the Judgment and Order dated 31.8.98 of the Orissa High Court
in O.J.C. No. 12032 of 1997. / H
/
54 SUPREME COURT REPORTS [1999] 2 S.C.R.
I
A C.S. Vaidyanathan, Additional Solicitor General, F.S. Nariman, I.M. Chagla,
Dipankar Gupta, Shanti Bhushan, P.N. Mishra, Ashok H. Desai, Ashok Parija,
Subhash Sharma, Ramesh Singh, Praveen Kumar, Ms. Anuradha Dutt, Ms.
Vijaya laksmi Menon, Gautum Mitra, Rajiv Lal, Mrs. Indra Sawhney, Jayant
Bhusan, Ashok K. Srivastava, D.S. Mehra, R.S. Jena, S. Misra, Abhisth
B Kumar, R. Patnaik, K.K. Lahiri, Ejaz Maqbool, B.K. Mishra and Gaurav Kumar
for the appearing parties.
The Judgment of the Court was delivered by
S.B. MAJMUDAR, J. Leave granted.
c
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
D 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:
E
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
F 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 of20 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
G 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, I 991 TISCO applied to the State authorities for
H second renewal of the mining lease for 20 more years under Section 8(3) of
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.B. MAJMUDAR, J.] 55
the Mines and Minerals (Regulation and Development) Act, 1957 (for short A
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 compliance with the requirement prescribed under the MMRD Act
read with Mineral Concession Rules, 1960 (for short 'the Rules'). It may be B
noted that the said recommendation was for re-grant of mining lease for I 0
years to TISCO for the entire area of 126i.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 l 0 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 C
recommendation of the State Government dated 28.11.1992 conveyed its
approval under Section 8(3) in relaxation of Section 6{l)(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 D ·
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 E
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 F
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, G
the present appellant M/s. Ferro Alloys Corporation Ltd. (for short 'F ACOR')
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 H
56 SUPREME COURT REPORTS [1999) 2 s.e.R.
A Mis. 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
B 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
C subsequent renewal of the lease of TISCO and 11s 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 ofTISCO's claim for subsequent renewal of the lease. Regarding
locus standi of the other writ petitioners before the High court whose writ
D 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 TISCO's iease, the area
eventually would be available and the State Government of Orissa would take
E 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 TISCO's 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
F 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. I 0830/95, other cognate SLPs arising
out of the common order of the High Court on 10th May, 1995 were also filed.
G By an interim direction, this Court clarified in TISCO's 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
H entire area of 1261.476 hectares.
FERRO ALLOYS CORPN. LTD. v. U.0.I. [S.B. MAJMUDAR, J.] 57
The Central Government in its tum and in compliance with the decision .· A
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 Centr~l
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 B
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 C
said report second renewal of TISCO's 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 D
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 TISCO's renewal of lease of 406 hectares, the balance of 855 ·
hectares land which was to be available with the State of Orissa for granting E
- 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 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.
F
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 ~rders 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 G
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 H
58 SUPREME COURT REPORTS [1999] 2 S.C.R.
A grant_ mining lease to the aforesaid four applicants as per law over the balance·
area of855.476 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
B 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
C 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 (I) 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
D 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
E 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
F 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
G by this Court after granting leave to appeal in the SLPs and by its decision
in the case of Tata Iron & Steel Co. Ltd v. Union of India And Another,
[1996] 9 SCC 709, a Bench of 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
H accordingly dismissed the appeals filed by TISCO and IDCOL. As we have
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.B. MAJMUDAR, J.] 59
I
noted, the impugned order of the Central Government dated 17th August, A
1995 which in its tum was an off-shoot of Sharma Committee's 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
B
--
for extracting chromium. However, the Central Government had observed that
so far as the appellant's 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 C
accepted by the Central Government in its order dated 17th August, 1995.
That order got confirmed by this court in the aforesaid decision in TISCO's
case (Supra).
In the meanwhile, the appellant being dissatisfied with the aforesaid D
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 appellant's E
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, IMFAIICCL, Jindals, Ispat and FACOR over 500Ai of the left F
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 G
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, I 997 and the earlier order of the Central Government dated 17th
August, 1995 the appellant filed a fresh Writ Petition being OJC No.12032/97 H
60 SUPREME COURT REPORTS (1999] 2 S.C.R.
A 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 TISCO's case (supra) challenging the very same order of the Central
Government dated 17th August, 1995 which was confirmed by this Court in
B the aforesaid decision was not maintainable on the ground of res judicata.
It was also held that the order 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
C 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:
D 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 ple,adings of
the parties, the judgment of this Court jn TISCO's case (supra) and also relied ·
upon the relevant documents for submitting that in TISCO's appeal there was
E 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
F 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 prematu~e as the appellant's earlier
application for grant of mining lease which was dismissed as premature by
the State Government was pending scrutiny in revision before the Central
G Government and hence, this issue could have been kept open. r'
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 asse;>s its needs for chrome ore and also invited the
Central Government not only to. accept the said assessment but also to
I I
.,_,~
H exercise powers under Rule 59 sub-rule (2) for dispensing with the procedure
..-
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.B. MAJMUDAR, J.] 61
under Rule 59, sub- rule (1) of the Rules. That when the question of legality A
.of the order of the Central Government was being considered by this Court
·-in ·TISCO's 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 appellant's present grievance is barred. It is also B
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 Government's order was perfectly justified and
binding on all parties especially when it was wholly approved by this Court.
Shri Vaidyanathan, learned Addi. Solicitor General, appearing for C
Respondent No. I - 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 TISCO's writ petition. That the Central Government's 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 · D
in the light of the earlier decision of the Central Government laying down the
scope and ambit thereof.
Learned counsel for Respondent no.2 - State of Orissa, conteQded that
the order of the Central Government dated 17th August, 1995, as confirmed E
by this Court, left it to the State Government to pass appropriate orders
regarding grant of lease to rival claimants. That th€'. 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 appellant's writ petition was rightl~ dismissed by the High f _.
Court.
Ms. Indra Jaisingh, appearing for Respondent no.5, in her tum, submitted
that the appellant's writ petition was clearly barred by res judicata or
constructive res judicata and, in any case, it was barred by delay, laches and G
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 TISCO's and IDCOL's 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 H
62 SUPREME COURT REPORTS (1999] 2 S.C.R.
A 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
B 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 Government's order by treating
the assessment of relative needs of rival claimants by the Central Government
-
to be correct and binding on all rival claimants.
C 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 ofland in Sukinda Valley was sought to be claimed by
rival claimants. In TISCO's 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 TISCO's claim on the basis of its need for chrome
D ore, necessarily implied therein was the f"mding 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 appellan.fs need was not only res judicata but even on the ground of
E constructive res judicata and also on the ground that the appellant cannot
blow hot and cold subsequently, the appellanrs 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.
'\,.
F Learned senior counsel, Shri Gupta for Respondent no.7, also adopted
the arguments of learned senior counsel 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. v. Union of India, (1992) Suppl.I SCC 191. On
G the basis of this principle, the High Court rendered its decision earlier in
TISCO's writ petition which was followed by the Central Government by
appointing the Sharma Committee and the Sharma Committee's
recommendations were accepted by the Central Government by its order
dated 17th August, 1995. Thus, the entire exercise Qf equitable distribution·
--
of this rare and costly mineriil in Sukinda Valley was completed by the Central
H Government and was approved by this Court. Any tinkering with the same,
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.B. MAJMUDAR, J.] 63
therefore, cannot be permitted to any of the Respondents and accordingly, A
the appellant's 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. I of 1999 submitted
that the order of the State Government dated 29th June, 1997 which was B
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. Desai's grievance in the C
Intervention Application would not survive if the State Government's order
dated 29th June, 1997 is upheld.
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 D
TISCO's 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 TISCO's claim and IDCOL's 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 E
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 F
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. G
-- .~ .
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
prmc1ple of constructive res judicata; H
64 SUPREME COURT REPORTS [1999) 2 S.C.R.
A 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 !aches;
B
4. Whether the order of the State of Orissa 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 TJSCO's case (Supra). Whether
the order of the State Government dated 29th June, 1997 is binding
C 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 India by this Court on the facts and
circumstances of the case; and
6. What final order?
D
We shall now proceed to deal with the aforesaid points in the same
sequence in which they are listed above.
Point No. I:
E So far as the question of res judicata is concerned, it has to be kept
in view that the appellant's 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 appeilant is that even though the appellant
F 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
appellant's need as made by the Sharma Committee and as approved by the
Central Government by its order dated 17th August, 1995 involved a patent
G 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 TJSCO's 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
H decided it one way or the other and such decision should have obtained
FERRO ALLOYS CORPN. LTD. v. U.0.1. (S.B. MAJMUDAR, J.] 65
finality in the hierarchy of proceedings. Then only such an issue can be said A
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 TISCO's case (supra). Even then the\
question remains whether this Court expressly considered the grievance of B
the appellant against the order of the Central Government dated 17th August,
1995 when it did not go behind the estimate of the Sharma Committee 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 tum 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 C
grounds of challenge for consideration of the Court. They were listed as two
grounds being (I) 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.
D
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
clearly against paragraph 2 of the final directions of"the Central Government
in the order dated 17th August, 1995. )wo directions were issued by the E
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 Hon'ble 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 F
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 Hon'ble 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 G
an indefinite period .... " Besides TISCO, the four (4) parties mentioned
in para I 0 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 rende~ed .
area is handed over by TISCO to the State Government, the working H
66 SUPREME COURT REPORTS (1999] 2 S.C.R.
A 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
B compliance to the said observation of the Hon'ble 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
c over a compact and contiguous area as per breakup given in para -
I
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.l.l3 of the
Committee's Report.
D (ii) to take further action on the ML applications of the other 4
(four) applicants (other than TISCO) mentioned in para IO above
for grant of mining leases as per law over the balance area of
855.476 hectares ofTISCO as assessed by the Committee) on the
basis of proportionate to the requirements of the chrome ore for
E 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,
F 1960. The Government has carefully seen the observations of
Hon'ble 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 Hon'ble High Court and have set up mineral based
industries and are suffering for want of chrome ore, the Central
G
Government in conformity with the observations ofHon'ble 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 ( l) of the said rule 59 objective
---
of expediting the process for making available the raw material,
H which is chrome ore, to the needy industries in the interest of
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.8. MAJMUDAR, J.] 67
the mineral development. The chrome ore requirements of these A
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 B
II of Appendix A and in case of Mis 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 C
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 D
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 E
land by way of renewal of its lease and whether 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,
TISCO's challeqge to direction no. 2 did not raise a further question for
consideration regarding the correctness of assessment of relative needs of
the appellapt and Respondents 3 to 7 for chrome ore. On these aspects, there F
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 G
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
:~ontesting 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 tum to para 30 of the Report in TJSCO's
case (Supra), we find only five issues which had arisen for consideration of H
68 SUPREME COURT REPORTS [1999] 2 S.C.R.
A 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;
B
(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
C hearing prospective applicants while considering the issue of renewal
of TISCO's 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
D and the 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
E 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 underestimat~. Consequently,
F 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
G 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
H thereon inter se these parties. Consequently, it is difficult to appreciate the
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.B. MAJMUDAR, J.) 69
reasoning in the impugned order of the High Court that the controversy in A
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 fir.St point for detennination, therefore, is answered in negative in
favour of the appellant and against the Respondents. B
Point No.2 :
This takes us to the consideration of the question whether the judgment
of this Court in TISCO's case (supra) operates at least as constructive res
judicata against the appellant. Now it must be kept in view that the appellant c
was also a party- Respondent in the aforesaid appeal before this Court when
this Court considered the grievance of TISCO and IDCOL as appellants
centring 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 i_nterested in supporting the order of the Central Government in so far D
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 E
granted lease of the entire land in question or whether die 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
,,..._ F
the one hand, and the other contesting three claimants on the other centering
round the correct assessment of their respective 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 tht: appellants before this Court.
G
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 H
70 SUPREME COURT REPORTS [1999] 2 S.C.R.
A 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
B 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 1-equirement 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
C 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
D 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 ,
E 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
F 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 RespoQdents with a view
G 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
H !is is between the appellants on the one hand and all the contesting
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.B. MAJMUDAR, J.] 71
Respondents on the other. In other words, when the appellants are not A
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 Respon~ents 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 B
the case of lftikhar Ahmed & Ors., v. 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 :
c
"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 D
the Court actually decided the question.
In Chandu Lalv. Khalilur Rahaman, AIR (1950) PC 17, Lord Simonds
said:
"It may be added that the doctrine may apply even though the party, E
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 F
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 G
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
fonn, but by matter of substance within the limits allowed by law." H
72 SUPREME COURT REPORTS [1999) 2 S.C.R.
A "The raison d'etre 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."
B
(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
C hand and the contesting Respondents on the other who were all co-
Respondents before this Court in TISCO and IDCOL's appeals. Considering
the basic requirements of the principle of constructive res judicata amongst
co-Respondents in TISCO and IDCOL's appeals, it has to be found out
whether inter se those co-Respondents the question of correct assessments
of present appellant's need for chrome ore was necessary to be agitated by
D the pr~sent 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
E required to be revised upwards, which may be relevant for deciding the
appellant's 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
F against the appellant, it is not possible to agree with the contention of learned
counsel for the Respondents that the appellant's 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 TISCO's case (supra).
We may also, in this connection, refer to the submission of the learned
G 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 Shanna Committee
H were accepted by the Central Government by its order dated 17th August,
,
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.B. MAJMUDAR, J.] 73
:- 1995. It is this order which was brought in scrutiny before this Court in the A
SLPs ofTISCO 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
. appellant's claim for upward revision of the assessment of its need was
accepted, it would have directly affected, apart from other Respondents, the B
Special Leave Petitioner TISCO itself, and consequently, all the rival claims
of contesting parties in the aforesaid proceedings raised a common controversy
and a Iis 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 C
before this Court in the said proceedings. To that extent, it can be said that ·
there was a confli~t 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 D
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 grantaed by the
Central Government by its order dated 17th August, 1995, upholding of the E
total requin;ments 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 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 F
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.
G
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 H
,
74 SUPREME COURT REPORTS [1999] 2 S.C.R.
' - A 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 l 00 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
B cent. Still their inter se dispute may not be required to be decided in appellant's
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
C 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 B's share was 30 per cent
and C's 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
D 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
E 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 A's claim
F 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 A's 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
G 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
l
ascertained by the Central Government on the basis of the report of Sharma
Committee and when brought in the arena of contest by TISCO the inter se
claims between present appellant and other contesting Respondents namely
H 3 to 7 who were all co-Respondents before this Court in the earlier proceedings
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.B. MAJMUDAR, J.] 75
could be said to have been barred by constructive res judicata on account . A
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 groul.ld held against B
- it. In TISCO's 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
Government's order dated 17th August, 1995 on the ground that it
underestimated its needs. Such a grievance would amount to attacking the C
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 D
consideration to the rival contentions. We find that the appellant FACOR
stood on the fence before this Court when the judgment was rendered in
TJSCO's 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 E
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 Sharnia Committee Report as accepted by the Central
Government by its order dated 17th August, 1995 was correct or not, the
F
stand adopted by the appellant FACOR before this Court assumes importance.
It discretely kept silent and invited this Court to accept the said decision G
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 H
76 SUPREME COURT REPORTS [1999) 2 S.C.R.
A upheld. And that is exactly what this Court did in its judgment delivered later
on 23rd July, 1996 . It is also pertinent to note that in betwe~n FACOR had
filed Writ Petition OJC No.1474/96 on 19th February, 1996 before the Oriss~
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
B 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 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
C 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
D 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
E 50 years. We, therefore, find considerable force in. the submission of the
learned Senior counsel for the contesting Respon9ents 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, 199 5. It acquiesced in the said assessment.
F
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
G 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
H order of 17th August, 1995 in its entirety. These contesting Respondents, on
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.B. MAJMUDAR, J.] 77
account of the aforesaid conduct of FACOR changed their position and could A
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 B
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 C
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 assessmem o( D
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 land to that extent in the first instance. Therefore,
the order of the State Government dated 29th June, 19~_7 must be held to have
proceeded on the admitted stand taken not only by FACOR but also by the E
other claimants before this Court when it delivered its Judgment in TISCO's
case (Supra). Thus, because of non- contentious attitude adopted by FACOR
before this Court in the proceedings culminating in the aforesaid judgment
not only th~ 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 F
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 confinned 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. G
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 H
78 SUPREME COURT REPORTS [1999] 2 S.C.R.
A decided TISCO's 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
i '
accepted the said assessment. '
When we turn to the decision of this Court in TISCO's case (Supra),
we find all the rival claimants namely, TISCO, IDCOL, FACOR and otper
B 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
C 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 min_eral 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 TISCO's case (supra) at pages
726:
D
"63. We have studied the Committee's report on this issue and we find
th~t 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
E
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
F 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
G its discretion in granting or renewing a .lease, it is clear that the
capacity of an industry 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 \
H been specifically examined by the Committee at pages 260-263 of its
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.B. MAJMUDAR, J.] 79
report. In order to properly appreciate the issue of captives A
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 B
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!CCL, /MFA, 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 offact that has C
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 ha\Jing
taken note of the prevailing situation and the problems faced by D
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' i!nd adopting the stance that it encompassed E
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. TISCO's lease over an area of 406
hectares would satisfy its needs and requirements. F
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
TISCO's lease. To complete this exercise, it relied upon the submissions G
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. H
80 SUPREME COURT REPORTS [1999] 2 S.C.R.
A 66. By its order dated 17 .8.1995, the Central Government while
endorsing the finding of the Committee recommended to the State
Government that TISCO's 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
B 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
c 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
D the laws. In the present matter, in its impugned judgment, 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 constitut~d
a Committee comprising high level functionaries drawn from various
E 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
document~ 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
F 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."
G (Emphasis supplied)
A mere 109k 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
H dispute inter se was sought to be put to an end on the principle of equitable
FERRO ALLOYS CORPN. LTD. v. U.O.I. [S.B. MAJMUDAR, J.] 81
distribution of such a rare and costly mineral. This package evolved by this A
Court must be held to be binding on all thecontesting parties, leaving aside
the question of res judicatd 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 B
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. C
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 Court's judgment in TISCO's 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 D
Governmen~ 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, E
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
Government's order dated 17th August, 199 5. In fact, in the light of the F
aforesaid order dated 29th June, 1997, the State of Orissa has already appointed
a committee under the Chairmanship of Sri Jagadish Prasad Dash, IAS, Addi.
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 G
Committee will also consider the q"l:'estion 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
-0f 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, H
82 SUPREME COURT REPORTS [1999] 2 S.C.R.
A the total area which will be eannarked 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 Chainnan of the
Committee to assess the requirement of chrome ore of needy applicants, the
B 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
C 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 temaining 50 per cent assessed needs for further grant of mining leases
'D 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 appellail.l FACOR in the
light of the earlier decision of this Court in TISCO's case (Supra) and which
was invited by FACOR itself by keeping mum before this Court while it was
E called upon to confinn 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
F 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 continued by this Court with the
G 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 confinn that order again turned round subsequently and
adopted a volte-face. It is also interesting to note that after this Court, in
H TISCO's case heard the parties in October, 1995 and reserved its judgment
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.B. MAJMUDAR, J.] 83
which was delivered nine months thereafter on 23.7.96 and in the mean time, A
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 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 B
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 c
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 Government's 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 D
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 E
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 F
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., v. G
Waite & Ors., (1990) 2. All England Reports, 990, the Court of Appeal in
England had to consider the question <?f estoppel which would be bindinc;
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. I and 2 on the H
84 SUPREME COURT REPORTS [1999] 2 S.C.R.
A ground th~t 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.
B Thereafter, the plaintiff filed proceedings in the English Court under RSC
Order 14 to enforc..e the Irish Court's judgment obtained by him against all the
three defendants as a debt at common law. In th.e 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
C 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
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
D 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
E 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. Macleod's
F · 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 jud~ment of Costello
G
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
H a party to it, and to have another bite at the cherry of alleging fraud
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.B. MAJMUDAR, J.] 85
against the plaintiffs." A
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 B
Respondent in TISCO's 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 C
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. D
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 E
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 I 7th August, 1995 got confirmed by this Court in TISCO's appeal.
Though the appellant's present grievance is held to be barred on the
ground of estoppel, waiver and acquiescence, it cannot, however, be held that F
it is barred by delay and !aches, 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 appellant's claim be considered G
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 : H
T
86 SUPREME COURT REPORTS (1999] 2 S.C.R.
A It is true that the Central Government's 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
B area of855.476 hectares be reserved for consideration ofother 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, nemely, M/s IMFA/ICCL, Mis !spat
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
C recommended by the Government of India. It was also observed while
assessing the need of the remiaining 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
D of the Central Government's order dated 17th August, 1995 by this Court, in
TISCO's 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
E 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 of855.476 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
F 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 appellant's need by 50%. The challenge to the said
order was mounted by the appellant before the High Court on an entirely
G different ground namely, that its need for chrome ore was more than as
assessed and therefore, the Central Government's Order dated 17th August,
1995 and the consequent order of the State Government dated 29th June,
J997, were not legal and valid but no alternative challenge was mounted or -·
pressed before us in connection with the State Government's Order of 29th
June, 1997 on the aspect of slicing down or reserving 50% of855.476 hectares
H for consideration of claims of other parties including the captive consumers.
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.B. MAJMUDAR, J.] 87
As seen earlier, this challenge of the appellant about assessment of its need A
by the Central Government is not maintainable. We must, therefore, hold that
the order of the State Government dated 29th June, I 997 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 B
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
C
Application No. l of 1999 does not survive for consideration. The said I.A.
will stand disposed of accordingly.
Point No. 5:
D
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 E
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. F
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 c;arry out the remaining exercise pursuant to its G
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 1261.4 76
hectares for mining of Chromite in favour of the four parties i.e. the appellant H
88 SUPREME COURT REPORTS (1999] 2 S.C.R.
A 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
B Jagadish Prasad Dash Committee or even otherwise to the appellant and
Respondents 3 to 7 to meet wholly or partially their remaining 50 per cent of
assessed needs as per Central Government's order dated 17th August, 1995
will be subject to the revisions, if any, by the aggrieved parties before the
c
Central Government in accordance with law.
case.
There will be no order as to costs in the facts and circumstances of the --
S.M. Appeal dismissed.
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