Supreme Court of India
M/S. KALINGA MINING CORPORATIONversusUNION OF INDIA & ORS.
- Citation
- 2013 INSC 83
- Decided
- 7 February 2013
- Disposal
- Dismissed
- Bench
- S S NIJJAR
Holding
The earlier High Court decisions, including the dismissal of the SLP, are final inter‑partes and bind the parties; Rule 25A is prospective and does not revive the settled issue, so the lease grant to the legal heirs stands.
Summary
M/s Kalinga Mining Corporation (appellant) challenged the grant of a mining lease to the legal heirs of the deceased Dr. Sarojini Pradhan (respondent No.10). The High Court had earlier allowed the substitution of the legal heirs, dismissed an SLP against that order, and later upheld the lease grant. The appellant argued that Rule 25A of the Mineral Concession Rules, 1960 was prospective and that the earlier dismissal should not bar a fresh challenge on grounds of res judicata and violation of natural justice. The Supreme Court held that the High Court correctly accepted the locus standi of the legal heirs, that the dismissal of the earlier SLP created a final inter‑partes decision, and that Rule 25A is prospective but does not reopen the matter. Consequently, the appeals were dismissed.
Issues considered
- Whether Rule 25A of the Mineral Concession Rules, 1960 is clarificatory and retrospective or only prospective in operation.
- Whether the dismissal of the Special Leave Petition in 2001 bars the appellant from challenging the validity of the legal heirs' application for the mining lease under the doctrine of res judicata.
Legislation cited
- Code of Civil Procedure, 1908s. Order 47 Rule 1
- Mineral Concession Rules, 1960s. Rule 25-A
- Mines and Minerals (Development and Regulation) Act, 1957s. Section 30, s. Section 5(1)
Subjects
res judicatamineral concession rulesRule 25Anatural justiceadministrative lawjudicial reviewmining leasesubstitution of legal heirsprospective legislationprocedural fairness
Judgment
[2013] 1 S.C.R. 814
A M/S. KALINGA MINING CORPORATION
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 1013 of 2013)
FEBRUARY 07,.2013.
B
[SURINDER SINGH NIJJAR AND H.L.GOKHALE, JJ.]
Res Judicata:
c Writ petition - Substitution of legal heirs of applicant for
grant of mining lease - Allowed by High Court - SLP
dismissed in limine - Issue again raised by appellant in writ
petition challenging the order of granting mining lease - Held:
It cannot be said that High Court has effoneously accepted
0 the plea raised by LRs of respondent that the claim of
appellant is baffed by re~ judicata - On the plea of a decision
in a subsequent judgment, the issue cannot be permitted to
be reopened since it has become final inter partes -
Judgments - Finality of judgment.
E Mineral Concession Rules, 1960:
r.25-A - Held: Is prospective in operation.
Administrative Law:
F Opportunity of hearing - Mining lease - Plea of violation
of principles of natural justice alleging that parties wers heard
by a differsnt officer and decision was made by another officer
- Held: Judicial rsview of administrative action/quasi judicial
orders passed by Government is limited only to correcting the
G errors of law or fundamental procedural rsquirsments which
may lead to manifest injustice - When conclusions of
authority ars based on evidence, the same cannot be rs-
apprsciated by the court in exercise of its powers of judicial
rsview - In the instant case, the order was the verbatim
H 814
KALINGA MINING CORPORATION v. UNION OF INDIA 815
& ORS.
reproduction of report prepared by the officer who had heard A
the parties and it was signed by the other officer merely to
communicate the approval of Central Government to parties
- It is clearly a case of institutional hearing - Order does not
suffer from any legal or procedural infirmity - Judicial review.
B
In response to the notification dated 20.7.1965 issued
by the State Government, the appellant, respondent no.
10 and others submitted their applications for grant of
mining lease in respect of the notified area. On 8.6.1973,
the Central Government rejected all the applications. C
Respondent no. 10 filed a writ petition (OJC No. 829 of
1978), which was allowed by High Court on 4.9.1987
directing the Central Government to reconsider the matter
after giving all the parties concerned an opportunity of
hearing. On 10.9.1987 respondent no. 10 died. Legal heirs
of respondent no. 10 approached the High Court for D
substitution, which was allowed.
On 8.4.1999, the Central Government approved the
recommendation of the State Government for grant of
mining lease in favour of legal representatives of E
respondent no. 10. In the writ petition filed by the
appellant, the High Court, by its order dated 2.7.2001 held
that on the death of respondent no. 10, her application
for mining lease did not abate. SLP No. 13556 of 2001 filed
by the appellant against the said order was dismissed in F
limine on 24.8.2001. Ultimately, by order dated 27.9.2001,
mining lease was granted in favour of legal
representatives of respondent no. 10. The appellant
challenged the said order before the High Court In OCJ
No. 3662 of 2002. Meanwhile In Sa/igram Khirwal's case It G
was held that legal heirs could not pursue an application
for mining lease and that r.25-A was prospective.
However, the High Court observed that legal heirs would
be at liberty to make a fresh application In their own right.
The writ petition was allowed to be amended In view of H
816 SUPREME COURT REPORTS [2013) 1 S.C.R.
A judgment in Saligram's case, but the preliminary objection
raised by the appellant regarding the maintainability of the
application for mining lease by legal heirs, was rejected
by the High Court, by its order dated 3.8.2007, holding
that the controversy stood concluded between the parties
B by rejection of earlier SLP No. 13556 of 2001 on 24.8.2001.
The appellant challenged the order dated 31.8.2007 in C.A.
No. 1013 of 2013. OCJ No. 3662 of 2002 was, ultimately,
dismissed by the High Court on 24.11.2008. The
appellant challenged the said order in C.A. No. 1014 of
c 2013.
In C.A. No 1013 of 2013, the question for
consideration before the Court was: whether the
dismissal on 24.8.2001 of the SLP filed by the appellant
against the judgment of the High Court dated 2.7.2001 in
D OJC No. 11537 of 1999 would attract ttie principles of res
juclicata, so as to disentitle the appellant from urging the
invalidity of the application of the legal heirs in place of
the deceased-respondent no. 10 in the pending
proceedings in OJC No. 3662 of 2002. In C.A. No. 1014 of
E 2013, it was contended for the appellant that the order
dated 27.9.2001 was passed in violation of principles of
natural justice in asmuch as the parties were heard by the
Joint Secretary, whereas the order was passed by the
Deputy Secretary, who did not hear the parties at all.
F
Dismissing the appeals, the Court
HELD: 1.1. It is a matter of record that on the
application filed by the legal heirs for substitution In place
of respondent No. 10, the appellant was duly heard. The
G appellant had accepted the locus standi of the LRs of
respondent no. 10. This is evident from the fact that in the
subsequent hearings before the Central Government,
which were held consequent upon the directions issued
by the High Court, the appellant raised no objection with
H regard to the locus standi of the legal heirs of respondent
KALINGA MINING CORPORATION v. UNION OF INDIA 817
& ORS.
No. 10. Clearly, therefore, a final decision had been A
reached with regard to the acceptability of the locus
standi of the LRs of respondent No. 10 to step into the
shoes of the deceased. [para 30-31) [835-D; 836-A-C]
1.2. The locus standi of the LRs of respondent No. 8
10 was not under challenge in the proceedings before the
High Court in OJC No. 4316 of 1990. It is noteworthy that
the appellant accepted the judgment in the said writ
petition. It was not assailed either by'way of a review
petition before the High Court or by way of a Special
Leave Petition before this Court. This was the second C
time when the locus standi of the LRs of respondent no.
10 was accepted judicially. In such circumstances, it
cannot be said that the High Court has erroneously
accepted the plea raised by the LRs of the respondent
that the claim of the appellant is barred by res judicata. D
Even after the judgment in Sa/igram's case, the matter
regarding the locus standi of the LRs of respondent No.
10 to proceed with a mining lease application cannot be
permitted to be reopened since it has become final inter
partes. The subsequent interpretation of r.25A by this E
Court, that it would have only prospective operatjon, in
the case of Saligram, would not have the effect of
reopening the matter which was concluded between the
parties. Given the history of litigation between the parties,
which commenced in 1950s, the High Court was justified. F
in finally giving a quietus to the same. [para 31,33 and
34) [837-G-H; 838-A-B; 838-F-G; 839-B]
Saligram Khirwal Vs. Union of India & Ors. 2003 (3)
Suppl. SCR 522 = (2003) 7 SCC 689; State of West Bengal G
Vs. Hemant Kumar Bhattacharjee & Ors. 1963 Supp (2) SCR
542 and Mohan/al Goenka Vs. Benoy Kishna Mukherjee &
Ors. 1953 SCR 377 - referred to.
1.3. In the instant case, not only the High Court had
rejected the objection of the appellant to the substitution H
818 SUPREME COURT REPORTS [2013) 1 S.C.R.
A of the legal heirs of the deceased but the SLP from the
said judgment has also been dismissed. Even though,
strictly speaking, the dismissal of the SLP would not
result in the merger of the judgment of the High Court in
the order of this Court, the same cannot be said to be
B wholly irrelevant. The High Court committed no error in
taking the same into consideration in the peculiar facts
of the case. Ultimately, the decision of the High Court was
clearly based on the facts and circumstances of the case.
The High Court ciearly came to the conclusion that the
c appellant had accepted the locus standi of the LRs of the
deceased to pursue the application for the mining lease
before the Central Government, as well as in the High
Court. [para 34) [839-E-G]
The Chamber of Colours and Chemicals (P) Ltd. Vs.
D Trilok Chand Jain (1973) 9 DLT 510 Para 6; Ta/eb Ali & Anr.
Vs. Abdul Aziz & Ors. AIR 1929 Cal 689 Para 38, and Shah
Babula/ Khimji Vs. Jayaben D. Kania & Anr. (1981) 4 SCC
8; Mathura Prasad Bajoo Jaiswal & Ors. Vs. Dossibai N.B.
Jeejeebhoy 1970 (3) SCR 830 = (1970) 1 SCC 613, Nand
E Kishore Vs. State of Punjab 1995 (4) Suppl. SCR 16 = 1995
(6) SCC 614, Sushi/ Kumar Mehta Vs. Gobind Ram Bohra
(Dead) Through His LRs 1989 (2) Suppl. SCR 149=1990
(1) SCC 193, and Kunhayammed & Ors. Vs. State of Kera/a
& Anr. 2000 (1) Suppl. SCR 538 = 2000 (6) SCC 359; P.
F Pollution Control Board & Ors. Vs. Kanoria Industrial Ltd. &
Anr. 2001 (1) SCR 559 = 2001 (2) SCC 549; C. Buchi
Venkatarao Vs. Union of India & Ors. 1972
(3) SCR 665 c 1972 (1) SCC 734; Shanti Devi Vs. State of
Haryana & Ors. 1999 (5) SCC 703; Union of India & Ors. Vs.
G Mohd. Nayyar Khalil & Ors. 2000 (9) SCC 252; and
Satyadhyan Ghosa/ & Ors. Vs. Deorajin Debi (Smt.) & Anr.
1960 SCR 590 =AIR 1960 SC 941 - cited.
CIVIL APPEAL NO. 1014 OF 2013
H 2.1. It Is by now well settled that judicial review of the
KALINGA MINING CORPORATION v. UNION OF INDIA 819
& ORS.
administrative action/quasi judicial orders passed by the A
Government is limited only to correcting the errors of law
or fundamental procedural requirements which may lead
to manifest injustice. When the conclusions of the
authority are based on evidence, the same ca11,not be re-
appreciated by the court in exercise of its powers of B
judicial review. The court does not exercise the powers
of an appellate court in exercise of its powers of judicial
review. It is only in cases where either findings recorded
by the administrative/quasi judicial authority are based
on no evidence or are so perverse that no reasonable c
person would have reached such a conclusion on the
basis of the material available that the court would be
justified to interfere in the decision. The scope of judicial
review is limited to the decision making process and not
to the decision itself, even if the same appears to be
0
erroneous. [para 44) [846-G; 847-A-C]
Tata Cellular Vs. Union of India 1994 (2) Suppl.
SCR 122 = 1994 (6) SCC 651 - referred to.
2.2. In the instant case, the High Court has examined E
the entire record and has concluded that the decision
making process is not flawed In any manner. The record
Indicated that the matter was heard by Joint Secretary for
two days I.e. on 28.8.2001 and 13.9.2001. Both the parties
had been given opportunity to place on record any F
documents and written submissions In support of their
claim. Upon conclusions of the arguments by the parties,
the Joint Secretary who had heard the parties prepared
the note running Into 19 pages, and duly signed It on
17.9.2001. The High Court further noticed that In fact this G
Is the report which had been duly approved by the
Secretary on 18.9.2001 and by the Minister on 25.9.2001.
·.The Impugned order dated 27.9.2001 Is, In fact, a verbatim
copy of the report/note prepared by the Officer who had
heard the parties. The High Court has concluded that the H
820 SUPREME COURT REPORTS [2013] 1 S.C.R.
A order has been signed by the Deputy Secretary merely
to communicate the approval of the Central Government
to the parties. [para 45-47] [849-8, D-F; 850-8-C, E-F]
2.3. The conclusions reached by the High Court
cannot be said to be contrary to the established
8
principles and parameters for exercise of the power of
judicial review by the courts. It cannot be said that the
order dated 27.9.2001 is vitiated as it has been passed by
an officer who did not give a hearing to the parties. This
is clearly a case of an institutional hearing. [para 48] [850·
C G; 851-C-D]
Pradyat Kumar Bose Vs. The Hon'ble The Chief Justice
of Calcutta High Court 1955 (2) SCR 1331- referred to
0 Local Government Board Vs. Arlidge (1915) AC 120 -
referred to
2.4. In view of the settled position of law, it cannot be
said that the order dated 27.9.2001 suffers from any legal
or procedural infirmity. The conclusions reached by the
E High Court are in accordance with the settled principles
of law. Undoubtedly, any decision, even if it is
administrative in nature, which causes adverse civil
consequences must be passed upon hearing the parties
concerned. The Central Government has fully complied
F with the said principle In passing the order dated 27.9.
2001. [para 48] [852-C·D, E·F]
Gullapalli Nageswara Rao & Ors. Vs. Andhra Pradesh
State Road Transport Corporation & Anr. 1959 Suppl.
G SCR 319 =AIR 1959 SC 308; Bachhittar Singh Vs. State of
Punjab & Anr. AIR 1963 SC 395; Automotive Tyre
Manufacturers Association Vs. Designated Authority & Ors.
2011 (1) SCR 198 = (2011) 2 SCC 258; Commissioner of
Income Tax, Bombay & Ors. Vs. Mahindra and Mahindra
H Limited & Ors. 1983 (3)SCR773=1983
KALINGA MINING CORPORATION v. UNION OF INDIA 821
& ORS.
(4) SCC 392; Sandur Manganese and Iron Ores Limited Vs. A
State of Karnataka & Ors. 2010 (11) SCR 240 = 2010
(13) SCC 1; Lord Krishna Textile Mills Vs. Workmen .1961
SCR 204 =AIR 1961 SC 860; Ashok Kumar Das & Ors. Vs.
University of Burdwan & Ors. 2010 (3) SCR 429 = 2010
(3) SCC 616; State of Tamil Nadu Vs. Hind Stone & Ors. 8
1981(2) SCR 742 = 1981 (2) SCC 205 and Kabini Minerals
(P) Ltd. & Anr. Vs. State of Orissa & Ors. 2005 (5) Suppl.
SCR 341 = 2006 (1) SCC 54; Regional Manager, Central
Bank of India Vs. Madhulika Guruprasad Dahir & Ors. 2008
(11) SCR 319 = 2008 (13) SCC 170; and State of Orissa & C
Ors. Vs. Harapriya Bisoi 2009 (7) SCR 34 = 2009 (12)
SCC 378; Ossein and Gelatine Manufacturers' Association of
India Vs. Modi Alkalies and Chemicals Limited & Anr. 1989
(3) SCR 815 = 1989 (4) sec 264 - cited.
Case Law Reference: D
2003 (3 ) Suppl. SCR 522 referred to para 19
(1973) 9 DLT 510 Para 6 cited para 24
AIR 1929 Cal 689 Para 38 cited para 24 E
(1981) 4 sec 8 cited para 24
1970 (3) SCR 830 cited para 24
1995 (4) Suppl. SCR16 cited para 24
F
1989 (2) Suppl. SCR 149 cited para 24
2000 (1) Suppl. SCR538 cited para 24
2001 (1) SCR 559 cited para 25
G
1972 (3) SCR 665 cited para 25
1999 (5) sec 103 cited para 27
2000 (9) sec 252 cited para 27
H
822 SUPREME COURT REPORTS [2013] 1 S.C.R.
A 1963 Supp (2) SCR 542 referred to para 27
1953 SCR 377 referred to para 27
1960 SCR 590 referred to para 28
1959 Suppl. SCR 319 cited para 39
B
AIR 1963 SC 395 cited para 39
2011 (1) SCR 198 cited para 39
1983 (3) SCR 773 cited para 39
c
2010 (11) SCR 240 cited para 39
1961 SCR 204 cited para 39
2010 (3) SCR 429 cited para 39
D 1981 (2) SCR 742 cited para 39
2005 (5) Suppl. SCR 341 cited para 39
2008 (11) SCR319 cited para 40
E 2009 (7) SCR 34 cited para 40
(1915) AC 120 referred to para 42
1989 (3) SCR 815 cited para 42
1955 (2) SCR 1331 referred to para 42
F
1994 (2) Suppl. SCR 122 cited para 44
CIVIL APPELLATE JURISDICTION : Civil Appeal No
1013 of 2013.
G From the Judgment & Order dated 24.11.2008 of the Higt
Court of Orissa, Cuttack in O.J.C. No. 3662 of 2002.
WITH
C.A. No. 1014 of 2013
H
KALINGA MINING CORPORATION v. UNION OF INDIA 823
& ORS.
Mohan Jain, ASG, Krishnan Venugopal, Surya Prasad A
Misra, T.S. Doabia, Ashok K. Gupta, S. Ravi Shankar, S.
Yamunah Nachiar, D.K. Thakur, Kiran Bhardwaj, R.K. Rathore,
S.S. Rawat, D.S. Mahra, Sunita Sharma (for Anil Katiyar), P.K.
Manohar, M. Paikaray, Kirti Renu Mishra, Apurva Upamanyu,
Suresh Chandra Tripathy for the Appearing parties. B
The Judgment of the Court was delivered by
SURINDER SINGH NIJJAR, J. 1. Leave granted in both
the Special Leave Petitions.
c
2. By this common judgment, we propose to dispose of
both the aforesaid appeals. The Appeal arising out of Special
Leave Petition (C) No. 23141 of 2007 has been filed
challenging the order dated 31st August, 2007 rejecting the
preliminary issue raised by the appellant in OJC No.3662 of 0
2002. The Appeal arising out of Special Leave Petition (C) No.
5130 of 2009 has been filed challenging the final order dated
24th November, 2008 in OJC No. 3662 of 2002 upholding the
order dated 27th September, 2001.
CIVIL APPEAL NO. 1013 OF 2013 E
[Arising out of SLP (C) No. 23141 of 20071
3. We may notice here briefly the facts as noticed by the
High Court.
F
4. On 27th October, 1953, the appellant M/s. Kalinga
Mining Corporation applied to the Government of Orissa for a
prospecting licence. This was granted by the State Government
on 15th September, 1961 in respect of an area of 480 acres
in Kalaparbat Hill range of Keonjhar district subject to G
compliance of lease stipulations. The appellant applied for the
grant of mining lease also for iron manganese ore over 420
acres in Kalaparbat Hill range of Keonjhar district. As the same
was not considered by the State Government, the appellant filed
a revision before the Central Government. The same was H
824 SUPREME COURT REPORTS (2013] 1 S.C.R.
A disposed of by the Central Government on 23rd July, 1962 by
intimating the State Government that since the prospecting
licence was not granted in favour of the appellant, the mining
lease application could not be considered. The direction was
issued to the State Government to consider the application of
B the appellant for mining lease which was dated 4th September,
1961 on merit by 1st January, 1964. Since no decision was
taken by the State Government by stipulated date, the
application of the appellant dated 4th January, 1961 was
deemed to have been refused. By notification dated 20th July,
C 1965, the State Government of Orissa threw open an area of
438.5 acres in Kalaparbat Hill Range area, Keonjhar district
for mining under Rule 58(1) of Mineral Concession Rules, 1960
for mining in respect of manganese and iron ore. On 10th
September, 1965, six applicants including the appellant and
respondent No.10 submitted their applications for grant of
D mining lease in respect of the aforesaid area. It appears that .
the mining lease applications of the appellant as well as tti~
respondent No.10 were not disposed of by the State
Government within the statutory period, therefore, both of them
separately moved the Central Government in revision. By an
E order dated 7th April, 1967, the Central Government allowed
the revision petitions of the appellant and respondent No.10 and
directed the State Government to consider their mining lease
applications. Still no decision was taken by the State
Government, as a result of which the appellant moved another
F revision petition before the Central Government on 22nd July,
1967. The Central Government rejected the revision of the
appellant by its order dated 13th October, 1967.
5. Being aggrieved, the appellant filed OJC No.855of1969
G seeking a direction from the High Court for grant of mining lease
in its favour. Respondent No.10 intervened in the aforesaid writ
petition. By an order dated 21st June, 1971, the High Court
dismissed the writ petition filed by the appellant.
6. Pursuant to the order of the Central Government dated
H
KALINGA MINING CORPORATION v. UNION OF INDIA 825
& ORS. [SURINDER SINGH NIJJAR, J.]
7th April, 1967, the State Government on 3rd September, 1971, A
for the first time, passed an order recommending the grant of
mining lease in favour of respondent No.10 and sought the
approval of the Central Government as required under Section
5(1) of the Mines and Minerals (Development and Regulation)
Act, 1957. The Central Government by its order dated 18th B
January, 1972 refused to accord its approval in favour of
respondent No.10. It appears that the State Government on
25th April, 1972 again requested the Central Government for
grant of approval to its recommendation made in favour of
respondent No.10 Dr. Sarojini Pradhan. However, by its letter c
dated 29th December, 1972, the Central Government directed
the State Government to reject the mining lease application of
Dr. Pradhan. Thereafter on 8th June, 1973, the State
Government rejected all pending mining lease applications
including the application of appellant and Dr. Sarojini Pradhan. · 0
7. Challenging the aforesaid order, both the appellant and
Dr. Pradhan filed the revision petitions before the Central
Government. The Central Government by its order dated 2nd
May, 1978 rejected the revision filed by Dr. Sarojini Pradhan
but allowed the revision filed by the appellant with a direction E
to the State Government to pass a fresh order on merits.
8. It appears that Dr. Pradhan filed a writ petition being
OJC No.829 of 1978 challenging the order passed by the
Central Government dated 2nd May, 1978. On 4th September, F
1987, the High Court allowed the writ petition with the following
directions :
"We direct the Central Government to reconsider the
question of grant of approval for the grant of lease of iron
ore and manganese in respect of the area after giving all G
parties concerned an opportunity of hearing. The mode
and manner of hearing shall be regulated by the Central
Government and it shall convey its decision by a speaking
order, i.e. by giving reasons for the decision."
H
826 SUPREME COURT REPORTS [2013] 1 S.C.R.
A 9. We may notice here that in the aforesaid writ petition,
the appellant and the other applicants had filed applications for
intervention. How~ver, the cases of interveners were not
considered individually by the High Court, having regard to the
directions which were given by it. Few days after the aforesaid
B decision dated 4th September, 1987, Dr. Pradhan died on 10th
September, 1987. Since at that time Dr. Pradhan was only an
applicant for the mining lease, the appellant claims that her
application was lapsed.
10. An application was filed by the legal heirs of Dr.
C Pradhan for substitution in the revision filed by her and was
pending before the Central Government. In OJC No.829 of
1978, a Miscellaneous Case No.1773 of 1988 was filed
wherein the aforesaid fact of death of Dr. Pradhan and the fact
of application for substitution of her legal heirs were considered.
D In the aforesaid application, a direction was given by the High
Court on 28th April, 1988 to the Central Government to inform
the parties about the stage of revision and the date on which
the revision petition was posted for hearing. It was made clear
that the legal heirs of Dr. Pradhan may appear before the
E Central Government on 16th May, 1988 and seek directions;
regarding the hearing of revision application. With these
observations, the miscellaneous case was disposed of. Another
Misc. Case being Misc. Case No.1977 of 1988 was field in
the aforesaid OJC N0.829 of 1978. In the aforesaid Case
F No.1977 of 1988, on 11th May, 1988, the High Court passed
the following order :
"Heard.
On 28.4.1988, on a complaint made by the petitioner that
G no action had been taken by the Central Government to
implement our judgment in OJC No.829/87, we directed
that the legal representatives of the deceased petitioner
would appear before the Central Government on 16th May,
1988 to take steps regarding hearing. An application has
H now been filed stating that the legal representatives could
KALINGA MINING CORPORATION v. UNION OF INDIA 827
& ORS. [SURINDER SINGH NIJJAR, J.]
not appear before the Central Government on that day due A
to difficulties stated in the petition. The counsel for the
parties now agree that the legal representatives of the
deceased petitioner would appear before the Central
Government on the 6th of June, 1988 on which day a date
of hearing shall be fixed. B
The Misc. case is disposed of accordingly."
11. It may be noted here that in both the Misc. cases the
appellant was a party and was heard.
c
12. In the meantime, another matter being OJC No.1431
of 1980 was filed. In the aforesaid matter, a Division Bench of
the High Court rejected the contentions of the State that on the
death of Dr. Pradhan, her writ petition will abate.
13. Thereafter on 11th May, 1990, the Central Government D
conveyed to the State Government its approval of grant of
mining lease in favour of the legal representatives of Dr.
Pradhan. The appellant, however, claims that no such order,
with reasons, was made available to the parties. In view of the
aforesaid approval, the State Government by its order dated E
24th May, 1990 asked the legal representatives of Dr. Pradhan
to furnish certain information and documents regarding the grant
of mining lease. By a letter dated 26th June, 1990, the legal
representatives of Dr. Pradhan furnished the information and
documents to the State Government. At this stage, the F
appellant filed OJC No.4316 of 1990 challenging the order
dated 11th May, 1990 passed by the Central Government, even
though the said order was not made available to the parties.
On 18th December, 1990 the High Court passed an interim
order staying the operation of the order of Central Government G
dated 11th May, 1990.
14. Whilst this controversy between the parties about the
abatement of the application of Dr. Pradhan for mining, as also
the writ petition filed by her, was pending, a significant change H
828 SUPREME COURT REPORTS [2013] 1 S.C.R.
A took place in that on 20th February, 1991 Rule 25A was
inserted in the Minor Concession Rules, 1961 w.e.f. 1st April,
1991. The aforesaid rule permitted the legal representatives to
continue pressing an application for grant of mining lease even
if the applicant dies.
B
15. It appears that OJC No.1269 of 1982 filed by Dr.
Pradhan challenging the order passed by the State Government
rejecting the application filed by her for mining lease for "lime
stone and Dolmite" over an area in respect of certain other
areas which are not subject matter of the present proceedings
C came to be decided on 23rd February, 1993. In this judgment,
the High Court held that Rule 25A is clarificatory in nature and
allowed the substitution of legal heirs of Dr. Pradhan to pursue
the mining application.
D 16. On 13th December, 1996, the High Court disposed of
OJC No.4316 of 1990 directing the State. Government to
reconsider the matter and pass a fresh and speaking order
after hearing the appellant, legal representatives of Dr. Pradhan
and one M/s. Balasore Minerals. On 8th April, 1999, the Central
E Government approved the recommendations of the State
Government for grant of lease in favour of legal representatives
of Dr. Sarojini Pradhan. Thereafter, terms and conditions were
offered by the State Government to the legal representatives
of Dr. Pradhan on 8th July, 1999, which were accepted by them
F on 20th July, 1999.
17. At this stage, the appellant filed OJC No.11537 of
1999 challenging the order dated 8th April, 1999. By judgment
dated 2nd July, 2001, the High Court allowed the aforesaid writ
petition, quashed the order of the Central Government and
G remanded the matter for fresh consideration. Relying on the
order passed in OJC No.1269 of 1982, it was held that on the
death of the original applicant Dr. Pradhan, her application for
mining lease does not abate. The Court also held that this being
a pure question of law, the issue has become final and shall
H
KALINGA MINING CORPORATION v. UNION OF INDIA 829
& ORS. [SURINDER SINGH NIJJAR, J.]
not be reopened in the hearing before the Central Government. A
18. The appellant challenged the order dated 2nd July,
2001 passed in OJC No.11537 of 1999 by filing SLP (C)
No.13556 of 2001 on the issue of allowing the legal
representatives of the deceased to be substituted in place of 8
the latter. This was dismissed in limine on 24th August, 2001.
Thereafter on 26th September, 2001, the Central Government
approved the recommendations of the State Government for
grant of mining lease in favour of legal representatives of Dr.
Pradhan.
c
19. The appellant filed a fresh OJC No.3662 of 2002 (writ
petition) challenging the grant of lease dated 27th September,
2001, on the basis that it constituted a new cause of action. At
this stage, according to the appellant, another significant
change took place in that on 9th September, 2003, this Court D
set aside the order passed by the High Court in OJC No.1269
of 1982 on 23rd February, 1993, which had been filed by the
legal representatives of Dr. Pradhan for certain other areas. It
was held by this Court in Saligram Khirwal Vs. Union of India
& Ors. 1 that legal heirs cannot pursue an application for mining E
lease. Thus, the interpretation placed on Rule 25A by the High
Court to the effect that it was clarificatory in nature, was
reversed by this Court. It was held that Rule 25A was only
prospective. Upon such interpretation, this Court further
observed that the legal heirs shall be at liberty to make a fresh F
application in their own right.
20. On 2nd June, 2006, the High Court passed further
order in OJC No. 3662 of 2002 directing that any action taken
in connection with the grant of lease shall be subject to the result
of the writ petition. On 21st February, 2007, the writ petition was G
allowed to be amended in view of the judgment in Saligram's
case (supra). The appellant raised a preliminary objection
relating to the maintainability of the application for the grant of
1. (2003) 1 sec ass. H
830 SUPREME COURT REPORTS [2013] 1 S.C.R.
A mining lease by the legal heirs of Dr. Pradhan, contending that
on the death of the original applicant, her application for grant
of mining lease abates and the legal heirs cannot maintain the
said application. By order dated 31st August, 2007, the High
Court held that the controversy stood concluded between the
B parties by the rejection of the earlier SLP (C) No. 13556 of
2001 on 24th August, 2001. It was held that the order dated
24th August, 2001 having attained finality, the question of
allowing the legal heirs to be substituted for the deceased
applicant had also attained finality between the parties and
c would operate as res judicata. The subsequent decision in
Saligram's case (supra) is of no consequence. Therefore, the
preliminary objection raised by the appellant about the
maintainability of the mining lease application by the legal heirs
of Dr. Pradhan was rejected. It is this interim order which has
D been challenged in the present appeal.
21. We may further notice here that OJC No. 3662 of 2002
was ultimately dismissed by the High Court on 24th November,
2008. The dismissal of the aforesaid writ petition was
challenged by the appellant by filing SLP (C) No. 5130 of 2009.
E
22. From the aforesaid narration of the facts, it becomes
apparent that only two issues arise in this appeal for
consideration viz. :
(a) Is Rule 25A, as introduced in the Mineral
F Concession Rules, 1960, w.e.f. 1st April, 1991, by
way of amendment dated 20th February, 1991,
clarificatory in nature, and hence retrospective, or
is it only prospective in nature?
G (b) Whether the dismissal of the SLP on 24th August,
2001, filed by the appellant against the judgment of
the High Court dated 2nd July, 2001 in OJC No.
11537 of 1999 would attract the principles of res
judicata, so as to disentitle the appellant from
H urging the invalidity of the application of the legal
KALINGA MINING CORPORATION v. UNION OF INDIA 831
& ORS. [SURINDER SINGH NIJJAR, J.]
heirs in place of the deceased Dr. Pradhan, in the A
pending proceedings in OJC No. 3662 of 2002, the
judgment which is the subject matter of the present
appeal?
23. We have heard the learned counsel for the parties at 8
length.
24. Mr. K.K. Venugopal, learned senior counsel appearing
for the appellant, submitted that the dismissal of the earlier SLP
on the preliminary issue will not act as a bar against the SLP
challenging the order passed at the final stage. He submitted C
that in SLP (C) No. 13556 of 2001, this Court did not entertain
the challenge against the order of the High Court permitting the
legal heirs of Dr. Pradhan to be substituted for her and to
pursue the litigation with regard to the mining lease. In support
of this submission, the learned counsel relied on The Chamber D
of Colours and Chemicals (P) Ltd. Vs. Trilok Chand Jain 2,
Taleb Ali & Anr. Vs. Abdul Aziz & Ors. 3, and Shah Babula/
Khimji Vs. Jayaben D. Kania & Anr. 4 He further submitted that
the principle of res judicata would not be applicable when the
law is subsequently declared contrary to the law earlier E
declared, on the basis of which the decision was given·which
is sought to be reopened. In support of this proposition, he
relies upon the law laid in cases of Mathura Prasad Bajoo
.Jaiswal & Ors. Vs. Dossibai N.B. Jeejeebhof', Nand Kishore
Vs. State of Punjab6 , Sushi/ Kumar Mehta Vs. Gobind Ram F
Bohra (Dead) Through His LRs,7 and Kunhayammed & Ors.
Vs. State of Kera/a & An,a.
2. (1973) 9 DLT 510 Para 6.
3. AIR 1929 Cal 689 Para 38. G
4. (1981) 4 SCC 8 Paras 55 and 78.
s.. (1970) 1 sec 613.
6. (1995) 6 sec 614 para 17.
7. (1990) 1 sec 193 para 26.
8. (2000) 6 sec 359. H
832 SUPREME COURT REPORTS [2013] 1 S.C.R.
A 25. In Kunhayammed (supra), it was held that the
dismissal in limine is not a decision on merits, it is only an
expression of opinion that the Court would not exercise
jurisdiction under Article 136 (Paras 14, 16 and 17). Additionally
in the written submissions, the learned counsel has also relied
s upon the judgment in the case of Sa/igram (supra). On the
basis of this judgment, it was submitted that upon the death of
an applicant for mining lease, the application abates and the
legal heirs would have no legal right to step into the shoes of
the deceased applicant, and that such an application would be
C non est in the eyes of law. If so, any recommendation for grant
of mining lease to the legal heirs, or approval of such
recommendation of the Central Government, would be mere
nullities in the eyes of law. He relied on paragraphs 11 and 12
of the judgment. Learned senior counsel further submitted that
the judgment in Saligram's case (supra) involved an
0
interpretation of the statutory Rule 25A. Such an interpretation
is in the realm of public law. It would, therefore, be a judgment
in rem. Principle of res judicata would have no application in
such a case. In support of this proposition, learned senior
counsel relied on the judgment of this Court in U.P. Pollution
E Control Board & Ors. Vs. Kanoria Industrial Ltd. & An~. He
submitted that the law declared in the aforesaid judgment would
necessarily apply to any pending case where the issue is a live
one. The contrary interpretation placed on Rule 25A by the High
Court in the earlier proceedings would be of no consequence.
F An application which is non est and the order made thereon in
favour of the legal heirs is a mere nullity, in the eyes of law, and
cannot be treated as a valid application in the pending writ
petition OJC No. 3662 of 2002. Mr. Venugopal further
submitted that the legal position was made clear by this Court
G even before insertion of Rule 25A in the case of C. Buchi
Venkatareo Vs. Union of India & Ors. 10
26. Mr. Dushyant Dave, learned senior counsel for the
9. (2001) 2 sec 549 Para 18.
H 10. (1972) 1 sec 734 Para 14.
KALINGA MINING CORPORATION v. UNION OF INDIA 833
& ORS. [SURINDER SINGH NIJJAR, J.]
respondent No. 10 submits that in the facts and circumstances A
of this case, it is not open to the appellant to question the status
of the LRs of respondent No. 10 on the basis of the "order" in
the case of Saligram Khirwal (supra).
27. Learned senior counsel submits that the case of 8
Saligram Khirwal (supra) is merely an order and not a judgment.
There is no declaration of law in the case of Saligram Khirwal
(supra). In fact, this Court has not interpreted Rule 25A of the
Rules in the aforesaid order. The order makes it clear that Rule
25A, on its plain reading does not have any applicability to the C
situation emerging from the facts in that case. He further
submitted that even assuming for the sake of argument that
Saligram's order lays down any principle of law, the same can
not aid the appellant in reopening the status of the LRs of the
respondent No. 10 in the present case. He seeks support for
the aforesaid proposition from the explanation to Order 47 Rule D
1 of the Code of Civil Procedure, 1908. He relies on the
judgment of this Court in the case of Shanti Devi Vs. State of
Haryana & Ors11 • and Union of India & Ors. Vs. Mohd. Nayyar
Khalil & Ors12. The learned senior counsel reiterates that the
claim made by the appellant would be barred by res judicata. E
~n support of his submission, he relies on the judgment in the
case of State of West Bengal Vs. Hemant Kumar
Bhattacharjee & Ors 13 • and Mohan/al Goenka Vs. Benoy
Kishna Mukherjee & Ors. 14 • On the basis of the aforesaid
judgments, it is submitted that even if the judgment dated 2nd F
July, 2001 rendered by the High Court in OJC No. 11537 of
1999 and the dismissal of the SLP (C) No. 13556 of 2001 are
considered to be erroneous in view of the earlier judgment of
this Court in C. Buchivenkata Rao (supra) and/or orders in
Saligram (supra), the matter regarding LRs of respondent No. G
10 and their status to maintain and proceed with the mining
11. (1999) 5 sec 103.
12. (2000) 9 sec 252.
13. 1963 Supp (2) SCR 542.
14. 1953 SCR 377. H
834 SUPREME COURT REPORTS [2013) 1 S.C.R.
A lease application can not be reopened since it has become
final inter parte. According to the learned senior counsel, res
judicata is not a mere technical rule, it is based on principle of
justice and public interest, viz. a litigant should not be vexed
twice over the same issue and there should be finality. The rule
B is based on equity, justice and good conscience. Subsequent
change in law cannot unsettle a matter which has attained
finality. He points out that principles of res judicata and
constructive res judicata have been applied even to Public
Interest Litigation, which cannot be said to be in the realm of
c private law. He submits that the judgment relied by the appellant
in the case of Mathura Prasad (supra) is distinguishable as it
is dealing with a situation where there was inherent lack of
jurisdiction and is therefore, not applicable in the present case.
28. Mr. Mohan Jain, has also submitted that the claim of
D the appellant is clearly barred by the principle of res judicata.
He has relied upon the case of Satyadhyan Ghosal & Ors. Vs.
Deorajin Debi (Smt.) & Anr15 .
29. We have considered the submissions made by the
E learned counsel for the parties.
30. At the outset, it needs to be noticed that the parties
herein have been competing for the same mining lease for the
past half-a-century. A perusal of the facts narrated herein above
would also show that there have been several rounds of
F litigation between the parties. Although, we have noticed all the
facts in-extenso for the purpose of deciding the issue of res
judicata, it is necessary to recapitulate the foundational facts
with regard to the aforesaid issue of res judicata. On 3rd
September, 1971, the State Government passed an order
G recommending the grant of mining lease in favour of
respondent No. 10. Since the Central Government did not
approve the recommendation made by the State Government,
on 8th June, 1973, it rejected all pending mining lease
H 15. AIR 1960 SC 941.
KALINGA MINING CORPORATION v. UNION OF INDIA 835
& ORS. [SURINDER SINGH NIJJAR, J.]
applications including the application of the appellant and Dr. A
. Sarojini Pradhan. On 2nd May, 1978, in a revision petition filed
by the appellant challenging the order of cancellation of its
application for grant of lease, the Central Government issued
a direction to the State Government to pass a fresh order on
merits. This order was challenged by Dr. Pradhan in OJC No. B
829 of 1978. The writ petition was allowed by the High Court
on 4th September, 1987 by directing the Central Government
to reconsider the question for the grant of lease after giving all
parties concerned an opportunity of hearing. During the
pendency of the revision petitions, Dr. Pradhan died on 10th c
September, 1987. Since OJC No. 829 of 1978 was still
pending in the High Court, the legal heirs of Dr. Sarojini
Pradhan by way of a Misc. Case No. 1773 of 1988 brought the
fact of her death on the record of the proceedings and sought
a direction of the High Court to be substituted as her legal heirs. D
It is a matter of record that on the application filed by the legal
heirs for substitution in place of respondent No. 10, the
appellant was duly heard. The application made by the LRs of
respondent No. 10 was allowed on 28th April, 1988 with the
following observations:-
E
"Misc. Case No. 1773 of 1988
Heard counsel for the parties.
2. By judgment dated 4/9/1987, while quashing Annexure F
5 the order passed by the Central Government, and the
consequential order passed by the State Government as
per Annexure 8 and the revisional order as per Annexure
11, we directed the Central Government to re-consider the
question of grant of approval for the grant of lease for iron
ore and manganese giving the parties concerned an G
opportunity of hearing. A grievance is now made that
despite lapse of more than six months, nothing is heard
from the Central Government. In the meanwhile, the sole
petitioner has died and it is stated than an application for
substitution of his legal representatives has already been H
836 SUPREME COURT REPORTS (2013] 1 S.C.R.
A filed and the revision is pending before the Central
Government.
3. In these circumstances, we would require the central
government to inform the parties the further stage of the
revision and the date to which the revision would be posted
B
for hearing. The legal representatives of the petitioner may
appear before the Central Government on 16th May, 1988
to take directions regarding hearing of the revision.
4. The Misc. Case is disposed of accordingly. A copy of
c this order be communicated to the Central Government.
A copy of this order be also handed over to the standing
counsel for the Central Government. Certified copy of this
order be granted in course of today, if an urgent application
is made therefore."
D
31. It appears that the LRs of respondent No. 1Ofailed to
appear before the Central Government on 16th May, 1988.
Therefore, they filed another Misc. Case No. 1977 of 1988
seeking another opportunity to appear before the Central
E Government. Therefore, the High Court by its order dated 11th
May, 1988 directed the LRs of Dr. Sarojini Pradhan to appear
before the Central Government on 6th June, 1988. As is evident
from the order, which we have reproduced in the earlier part of
this judgment that the direction was issued on the agreement
F of the counsel for the parties. In the meantime in another matter
being OJC No. 1431 of 1980, the Division Bench rejected the
contention of the State that on the death of Dr. Sarojini Pradhan,
her writ petition will abate and the substitution of the LRs of Dr.
Sarojini Pradhan was allowed. In accordance with the directions
issued by the High Court in the orders dated 28th April, 1988
G and 11th May, 1988, the LRs of respondent No. 10 duly
appeared before the Central Government. Upon hearing the
concerned parties, the Central Government took a decision
under Section 5(1) of the Mines and Minerals (Development
and Regulation) Act, 1957 to approve the grant of mining lease
H in favour of LRs of Dr. Sarojini Pradhan. Appellant ought to
KALINGA MINING CORPORATION v. UNION OF INDIA 837
& ORS. [SURINDER SINGH NIJJAR, J.]
have challenged the status of the LRs before the High Court at A
the time of the hearing of Misc. Case No. 1773 of 1988 and
Misc. Case No. 1977of1988. Appellant, it would appear, had
accepted the locus standi of the LRs of Dr. Sarojini Pradhan.
This is evident from the fact that in the subsequent hearing
before the Central Government, which were held consequent B
upon the directions issued by the High Court in the aforesaid
two Misc. cases, the appellant raised no objection with regard
to the locus standi of the legal heirs of respondent No. 10.
Clearly, therefore, a final decision had been reached with regard
to the acceptability of the locus standi of the LRs of respondent c
No. 10 to step into the shoes of the deceased Dr. Sarojini
Pradhan. The appellant decided to raise the issues of the
abatement of the application of Dr. Sarojini Pradhan only after
a decision was taken by the Central Government on 11th May,
1990, which approved the recommendation of the State D
Government for grant of mining lease in favour of the legal heirs
of Dr. Sarojini Pradhan. It is also noteworthy that OJC No. 4316
was decided on 13th December, 1996 with a direction to the
Central Government to reconsider the matter and pass a
speaking order. In the aforesaid writ petition, Dr. Sarojini E
Pradhan was a respondent. The appellant sets out in meticulous
detail the history of litigation between the parties. It is
specifically noticed in the judgment that although a number of
contentions have been raised to challenge the order dated 11th
May, 1990, ultimately the dispute was confined to the question
as to whether or not it was necessary for the Central F
Government to hear all the applicants alongwith Dr. Sarojini
Pradhan. The main ground for challenging the order of the
Central Government accepting the recommendation of the
State Government was that the Central Government had failed
to pass a speaking order. The locus standi of the LRs of G
respondent No. 10 was not under challenge in the proceedings
before the High Court in OJC No. 4316 of 1990. The writ
petition was allowed, a direction was again issued to the
Central Government to reconsider the matter and pass a fresh
speaking order giving reasons for the decision after hearing H
838 SUPREME COURT REPORTS [2013) 1 S.C.R.
A all the concerned parties. This was the second time when the
locus standi of ttie LRs of respondent No. 10 was accepted
judicially. It is noteworthy that the appellant accepted the
aforesaid judgment. It was not assailed either by way of a
review petition before the High Court or by way of a Special
B Leave Petition before this Court. In such circumstances, it would
be difficult to accept the submissions of Mr. Venugopal that the
High Court has erroneously accepted the plea raised by the
LRs of the respondent that the claim of the appellant is barred
by res judicata. Considering the principle of res judicata, this
c Court in the case of Mohan/al Goenka Vs. Benoy Kishna
Mukherjee (supra) held as under:
"22. There is ample authority for the proposition that even
an erroneous decision on a question of law operates as
res judicata between the parties to it. The correctness or
D otherwise of a judicial decision has no bearing upon the
question whether or not it operates a res judicata."
32. This court also held that "a wrong decision by a court
having jurisdiction is as much binding between the parties as
E a right one and may be superseded only by appeals to higher
tribunals or other procedure like review which the law provides."
[See State of West Bengal Vs. Hemant Kumar Bhattacharjee
(supra)]
33. In view of the aforesaid clear enunciation of the law by
F this Court, it would appear that even if the judgment dated 2nd
July, 2001 rend_ered by the High Court in OJC No. 11537 of
1999 and the dismissal in limine of SLP {C) No. 13556 of
2001 arising from the aforesaid judgment is considered to be
erroneous in view of the judgment in Saligram's case (supra),
G the matter regarding the locus standi of the LRs of respondent
No. 10 to proceed with a mining lease application cannot be
permitted to be reopened at this stage since it has become
final inter partes.
H 34. Even though, strictly speaking, res judicata may not be
KALINGA MINING CORPORATION v. UNION OF INDIA 839
& ORS. [SURINDER SINGH NIJJAR, J.]
applicable to the proceedings before the Central Government, A
the High Court in exercise of its power under Article 226 was
certainly entitled to take into consideration the previous history
of the litigation inter partes to decline the relief to the appellant.
Merely because the High Court has used the expression that
the claim of the appellant is barred by res judicata would not B
necessarily result in nullifying the conclusion which in fact is
based on considerations of equity and justice. Given the history
of litigation between the parties, which commenced in 1950s,
the High Court was justified in finally giving a quietus to the
same. The subsequent interpretation of Rule 25A by this Court, c
that it would have only prospective operation, in the case of
Saligram (supra), would not have the effect of reopening the
matter which was concluded between the parties. In our opinion,
if the parties are allowed to re-agitate issues which have been
decided by a Court of competent jurisdiction on a subsequent D
change in the law then all earlier litigation relevant thereto would
always remain in a state of flux. In such circumstances, every
time either a statute or a provision thereof is declared ultra
vires, it would have the result of reop~ning of the decided
matters within the period of limitation following the date of such
decision. In this case not only the High Court had rejected the E
objection of the appellant to the substitution of the legal heirs
of Dr. Sarojini Pradhan in her place but the SLP from the said
judgment has also been dismissed. Even though, strictly
speaking, the dismissal of the SLP would not result in the
merger of the judgment of the High Court in the order of this F
Court, the same cannot be said to be wholly irrelevant. The High
Court, in our opinion, committed no error in taking the same
into consideration in the peculiar facts of this case. Ultimately,
the decision of the High Court was clearly based on the facts
and circumstances of this case. The High Court clearly came G
to the conclusion that the appellant had accepted the locus
standi of the LRs of Dr. Sarojini Pradhan to pursue the
application for the mining lease before the Central Government,
as well as in the High Court.
H
840 SUPREME COURT REPORTS [2013] 1 S.C.R.
A 35. In view of the conclusions recorded by us above, it is
not necessary to express an opinion on the interpretation of
Rule 25A of the Mineral Concession Rules, 1960. In any event,
the judgment in the case of Saligram (supra) has concluded
that the Rule would have only prospective operation. The legal
B position having been so stated, it is not necessary for us to
dilate upon the same.
CIVIL APPEAL NO. 104 OF 2013
[Arising out of SLP (C) No. 5130 of 20091
c
:36. This now brings us to the second appeal arising out
of Special Leave Petition, i.e., 5130 of 2009, wherein the
appellant has challenged the final judgment rendered by the
High Court in the amended OJC No. 3662 of 2002 which was
D decided on 24th November, 2008.
37. The appellant now claims that order dated 27th
September, 2001 is void as it has been passed in breach of
rules of natural justice. Mr. Krishnan Venugopal, Senior.
Advocate, appearing for the appellant has submitted that in
E pursuance of the order dated 2nd July, 2001 passed by the
High Court in OJC No. 11537 of 1999, parties were heard by
Mr. S.P. Gupta, Joint Secretary for two days, i.e., 28th August.
2001 and 13th September, 2001. However, the order dated
27th September, 2001 has been passed by Dr. R.K. Khatri,
F Deputy Secretary, who did not hear the parties at all. Mr.
Krishnan submits that, by virtue of the orders passed by the
High Court, the proceedings before the Central Government
were quasi-judicial in nature. Therefore, it was necessary that
the same officer who gave a hearing to the parties ought to have
G passed the order in relation to the competing claims with regard
to the grant of mining lease. Learned counsel highlights that
originally the appellant had obtained the prospecting licence for
the area in dispute between 17th October, 1962 and 16th
October, 1963. However, while the appellant's application for
H mining lease was pending, the State Government made the
KALINGA MINING CORPORATION v. UNION OF INDIA 841
& ORS. [SURINDER SINGH NIJJAR, J.]
area available for re-grant under Rule 58 [now Rule 59(1)] of A
the Rules, as they stood in 1965. Six persons including the
appellant and Late Dr. Sarojini Pradhan applied for the grant
of mining lease on the same date, i.e. 10th September, 1965,
thus triggering the application of the proviso to Section 11 (2)
read with the merit based criteria in Section 11 (3) of the MMDR B
Act. As four of the contenders dropped out over the next four
decades, only appellant and respondent No. 10, i.e., the legal
heirs of the Late Dr. Pradhan were the only contesting parties
for the mining lease at the relevant time. Repeatedly, the orders
passed in favour of Dr. Sarojini Pradhan for the grant of mining c
lease has been set aside by the High Court on the ground of
being in violation of the rules of natural justice. On 31st August,
2007, the Division Bench rejected the preliminary issue raised
by the appellant to the effect that the application made by Dr.
Pradhan for a mining lease abates on her death, in 1987. D
Although the High Court held that legal heirs of Dr. Pradhan can
be substituted in her place, the writ petition was kept pending
for final disposal on the issue of as to whether the orders
granting the lease in favour of her legal heirs had been passed
in violation of rules of natural justice.
E
38. The High Court in the impugned judgment took note
of the submissions made by Dr. Devi Pal, learned senior
counsel appearing for the appellant. The main thrust of the
argument of Dr. Pal was that the matter had been heard by Mr.
S.P. Gupta, Joint Secretary on 28th August, 2001 and 13th F
September, 2001, but has been decided by Dr. R.K. Khatri,
Deputy Secretary of the Government of India, Ministry of Coal
Mines vide order dated 27th September, 2001, and the said
order had been communicated by Mr. O.P. Kathuria, Under
Secretary to the Government of India. The submissions made G
in the High Court have been reiterated before us by Mr.
Krishnan Venugopal. He submits that the approval granted in
favour of legal heirs of Dr. Sarojini Pradhan causes adverse
civil consequences to the appellant. Such an order could only
have been passed by the officer, who had heard the parties. H
'
842 SUPREME COURT REPORTS [2013] 1 S.C.R.
A The order, however, has been passed by a different officer, Dr.
R.K. Khatri, on the basis of the notes recorded by Mr. S.P.
Gupta in the relevant file. In support of the submission, the
learned counsel has relied on the judgment of this Court in
Gullapal/i Nageswara Rao & Ors. Vs. Andhra Pradesh State
B Road Transport Corporation & Anr16 .
39. Learned counsel then submitted that even if, for the
sake of argument, it is accepted that approval under the
proviso to Section 5(1) of the MMDR Act is to be treated as
C administrative in character, the impugned order dated 27th
September, 2001 still deserves to be set aside because it is
neither expressed nor can it be deemed to be expressed in
the name of the President of India, as required by Article 77 of
the Constitution of India and the Conduct of Business Rules. In
support of this submission, the learned counsel relies upon the
D judgment of this Court in Bachhittar Singh Vs. State of Punjab
& Anr. 17 On the basis of the aforesaid judgment, Mr. Krishnan
Venugopal submits that the impugned order, not having been
passed by the concerned Minister of the Central Government,
can not be deemed to be in the name of the President. He
E further emphasised that there is no material on the record to
show that, under the Rule of Business, the power to pass the
order on behalf of the Central Government under proviso to
Section 5(1) of the MMDR Act was delegated to the Deputy
Secretary. He further pointed out that even if the order is
F administrative in character, it would still be non est and void,
having been passed in violation of rules of natural justice and
causes serious civil consequences to the appellant. For this
proposition, he relies on the judgment of this Court in
Automotive Tyre Manufacturers Association Vs. Designated
G Authority & Ors18. Mr. Krishan further submitted that the Central
Government's order is vitiated because it is based mainly on
16. AIR 1959 SC 308.
17. AIR 1963 SC 395.
H 18. c2011) 2 sec 258.
KALINGA MINING CORPORATION v. UNION OF INDIA 843
& ORS. [SURINDER SINGH NIJJAR, J.]
the report of the Indian Bureau of Mines comparing the Iron Ore A
production of the appellant with that of the legal heirs of Late
Dr. Sarojini Pradhan for 1999-2000 and 2000-2001, which is
a period after the State Government's recommendation dated
5th February, 1999. The relevant period prior to 5th February,
1999 has been wholly ignored by the Central Government in B
passing the order dated 27th September, 2001. He further
submitted that the comparative merit of the parties had to be
judged on the criteria specified under Section 11 (3) of the
MMDR Act. The criteria under the aforesaid section include :-
(a) special knowledge or experience in prospecting operations c
or mining operations; (b) the financial resources of the
applicants, (c) nature and quality of technical staff employed or
to be employed by the applicant, (d) the investment which the
applicant proposes to make in the mines. Even though the
written statements submitted by the parties about their financial
0
and technical capabilities were sent to the State Government
for verification, a separate report was sought from the Indian
Bureau of Mines which was confined only to two years: 1999-
2000 and 2000-2001. The impugned order dated 27th
September, 2001 has been passed primarily based on the
report of the Indian Bureau of Mines for the aforesaid two years. E
The order is clearly vitiated as it is based on extraneous
considerations. In support of this, the learned senior counsel
relies on Commissioner of Income Tax, Bombay & Ors. Vs.
Mahindra and Mahindra Limited & Ors19 . The order passed
by the Central Government is contrary to the directions issued F
by the High Court on 2nd July, 2001 by which the matter had
been remanded to the Central Government with a direction to
place the recommendation dated 5th February, 1999 of the
State Government before the parties, to hear them, and to pass
a speaking order with reasons. The High Court did not authorise G
the Central Government to conduct its own investigations and
elicit fresh materials outside the scope of the State Government
recommendation. In support of this submission, the learned
counsel relies on a judgment of this Court in Sandur
19. (1983) 4 sec 392. H
844 SUPREME COURT REPORTS [2013] 1 S.C.R.
A Manganese and Iron Ores Limited Vs. State of Kamataka &
Ors. 20 The learned counsel further pointed out that the State
Government can not grant a mining lease without the previous
approval of the Central Government under the proviso to
Section 5(1) of the Act. Therefore, the power of the Central
B Government is confined to the grant of the previous approval
on the basis of the material submitted by the State Government
for seeking such a previous approval. In support of this
submission, the learned counsel relied on the judgments of this
Court in Lord Krishna Textile Mills Vs. Workmen 21 , Ashok
c Kumar Das & Ors. Vs. University of Burdwan & Ors. 22
, State
3
of Tamil Nadu Vs. Hind Stone & Ors2 • and Kabini Minerals
(P) Ltd. & Anr. Vs. State of Orissa & Ors24•
40. Learned counsel further submitted that the impugned
order dated 27th September, 2001 is vitiated as it has been
D obtained by fraud. He submitted that both parties have provided
a statement of the respective technical and financial capabilities
to the Central Government. In their submissions before the
Central Government, the legal heirs of Late Dr. Sarojini Pradhan
had categorically stated that one Mr. Nilamani Ojha, a mining
E engineer, was the number two person in their technical team.
This fact was denied by Mr. Ojha in a latter dated 5th
November, 2001 written to the Central Government. He further
submitted that even technical information submitted by the legal
heirs of Late Dr. Pradhan is factually incorrect. Therefore, the
F decision of the Central Government is vitiated by fraud. Learned
counsel relies on Regional Manager, Central Bank of India Vs.
Madhulika Guruprasad bahir & Ors25. and State of Orissa &
Ors. Vs. Harapriya Bisoi26 •
20. c2010) 13 sec 1.
G 21. AIR 1961 SC 860.
22. c2010) 3 sec 616.
23. (1981 > 2 sec 205.
24. (2006) 1 sec 54.
25. c2008) 13 sec 110.
H 26. (2009) 12 sec 378.
KALINGA MINING CORPORATION v. UNION OF INDIA 845
& ORS. [SURINDER SINGH NIJJAR, J.]
41. Mr. Ashok K. Gupta, learned senior counsel appearing A
for the legal heirs of respondent No. 10, had made detailed
submissions controverting the submissions made on behalf of
the appellant.
42. It is submitted that the submissions made by the
B
appellant that the Central Government's order is not in
consonance with Article 77, is wholly unfounded and devoid of
merits. This ground was not even pleaded in the writ petition
before the High Court. In fact, no such submission was made
at the hearing of the writ petition by the High Court. No C
grievance is made in the SLP that such a submission was
made before the High Court and that it was not considered. The
submissions raised by the appellant at this stage being a mixed
question of law in fact ought not to be permitted to be raised
in the present proceedings. This apart, he submits that the
judgment in the case of Bachhittar Singh (supra) was rendered D
on the basis of its own facts. Furthermore, in that case, the
order signed by the Minister was not communicated to the
parties and therefore, it was held that there was no effective
order. In the present case, the order was passed on the basis
of the approval granted and conveyed in the manner prescribed E
under law. With regard to the order being vitiated as it was
passed on consideration of the material subsequent to the date
of recommendation of the State Government viz. 5th February,
1999, he submits that the appellant cannot even be permitted
to raise such an objection, having willingly submitted materials/ F
information subsequent to the date of the recommendation by
the State Government. Mr. Gupta further submits that Section
5(2) of the MMDR Act does not prohibit the Central Government
to take into account material subsequent to the
recommendations made by the State Government. In the G
present case, it was necessary as the hearing was being
conducted 2% years after the recommendations have been
submitted. Learned counsel further submits that no fraud was
played by the legal heirs of respondent No.10, as is sought to
be canvassed by the appellant. No such ground of fraud was H
846 SUPREME COURT REPORTS [2013) 1 S.C.R.
A either pleaded in the writ petition before the High Court nor was
any submission made to that effect before the High Court. The
letter dated 5th November, 2001 of Mr. Nilamani Ojha has been
obtained by the appellant only for the purpose of prejudicing
the case of the appellant in this Court. With regard to the main
8 ground relating to breach of rules of natural justice and which
is premised on the basis that no hearing was granted by the
officer that passed the impugned order, it is submitted that the
submission is contrary to the material on the record. The matter
was heard by Mr. S. P. Gupta, and it was his note running into
C 47 paragraphs, which was approved by the Secretary and the
Minister, as per the rules of the business. The hearing was to
be given by the Central Government and not by a particular
individual. Therefore, it was clearly a case of institutional
hearing and it was not necessary that Mr. Gupta should have
passed the order. In this context, he relies on a judgment of the
0
House of Lords in Local Government Board Vs. Arlidge27 •
According to the learned counsel, this principle is also
recognized by this Court in Automotive Tyre Manufacturers
Association (supra) and Ossein and Gelatine Manufacturers'
Association of India Vs. Modi Alkalies and Chemicals Limited
E & Anr8• and Pradyat Kumar Bose Vs. The Hon'ble The Chief
Justice of Calcutta High Court29•
43. We have considered the submissions made by the
learned counsel for the parties.
F
44. It is by now well settled that judicial review of the
administrative action/quasi judicial orders passed by the
Government is limited only to correcting the errors of law or
fundamental procedural requirements which may lead to
G manifest injustice. When the conclusions of the authority are
based on evidence, the same cannot be re-appreciated by the
court in exercise of its powers of judicial review. The court does
27. (1915) AC 120.
28. 1989 (4) sec 264.
H 29. 1955 (2) SCR 1331.
KALINGA MINING CORPORATION v. UNION OF INDIA 847
& ORS. [SURINDER SINGH NIJJAR, J.]
not exercise the powers of an appellate court in exercise of its A
powers of judicial review. It is only in cases where either
findings recorded by the administrative/quasi judicial authority
are based on no evidence or are so perverse that no
reasonable person would have reached such a conclusion on
the basis of the material available that the court would be 8
justified to interfere in the decision. The scope of judicial review
is limited to the decision making process and not to the
decision itself, even if the same appears to be erroneous. This
Court in the case of Tata Cellular Vs. Union of lndia 30 upon
detailed consideration of the parameters within which judicial C
review could be exercised, has culled out the following
principles :
"70. It cannot be denied that the principles of judicial
review would apply to the exercise of contractual powers
by Government bodies in order to prevent arbitrariness D
or favouritism. However, it must be clearly stated that
there are inherent limitations in exercise of that power of
judicial review. Government is the guardian of the
finances of the State. It is expected to protect the financial
interest of the State. The right to refuse the lowest or any E
other tender is always available to the Government. But,
the principles laid down in Article 14 of the Constitution
have to be kept in view while accepting or refusing a
tender. There can be no question of infringement of
Article 14 if the Government tries to get the best person F
or the best quotation. The right to choose cannot be
considered to be an arbitrary power. Of course, if the said
power is exercised for any collateral purpose the exercise
of that power will be struck down.
G
30. (1994) e sec es1. H
848 SUPREME COURT REPORTS [2013] 1 S.C.R.
A 77. The duty of the court is to confine itself to the question
of legality. Its concern should be:
1. Whether a decision-making authority exceeded its
powers?
B 2. Committed an effor of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal
would have reached or,
c
5. abused its powers.
Therefore, it is not for the court to determine whether a
particular policy or particular decision taken in the
D fulfillment of that policy is fair. It is only concerned with
the manner in which those decisions have been taken.
The extent of the duty to act fairly will val}' from case to
case. Shortly put, the grounds upon which an
· administrative action is subject to control by judicial
review can be classified as under :
E
(i) Illegality : This means the decision-maker must
understand correctly the law that regulates his
decision-making power and must give effect to it.
F (ii) Irrationality, namely, Wednesbury
unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does
G not rule out addition of further grounds in course of
time ........................................ .
"
45. The aforesaid judgment has been followed again and
H
KALINGA MINING CORPORATION v. UNION OF INDIA 849
& ORS. [SURINDER SINGH NIJJAR, J.]
again. It was clearly observed in the said judgment that where A
the Court comes to the conclusion that the administrative
decision is arbitrary, it must interfere. However, the Court can
not function as an appellate authority substituting the judgment
for that of the administrator. Applying the aforesaid principles,
the High Court has examined the entire record and has B
concluded that the decision making process is not flawed in
any manner, as canvassed by the appellant. The High Court
noticed that the record was duly produced by Mr. J.K. Mishra,
learned Assistant Solicitor General. It was also noticed that
throughout the proceedings, no reference has been made to c
any particular officer or post or any designation. The order
dated 11th July, 2001 passed by the High Court merely directed
that they shall appear before the Central Government on 18th
July,· 2001. Order dated 14th August, 2001 clearly indicates that
the matter was being heard in view of the directions given by
0
the High Court in OJC No. 11537 of 1999 and secondly, notice
was issued for hearing on 28th August, 2001. The record further
indicated that the matter was heard by Mr. S. P. Gupta, Joint
Secretary for two days i.e. on 28th August, 2001 and 13th
September, 2001. Both the parties had been given opportunity
to place on the record any documents and writte·n submissions E
in support of their claim. It was also apparent that particulars
submitted were made available to all the parties. On 13th
September, 2001, Mr. S. P. Gupta, Joint Secretary made a note
as under:
F
"Thus, all the documents available with the Central
Government are also avai.lable with both the parties."
46. The High Court also took note of the fact that
independently of all the material supplied by the State G
Government along with the recommendation and the material
made available by the parties, the Central Government had
also asked Indian Bureau of Mines to furnish certain reports in
support of both the parties. These reports were, in turn, made
available to the rival parties. The High Court further noticed that H
850 SUPREME COURT REPORTS [2013] 1 S.C.R.
A after complying with all the formalities required, the issues were
finally adjudicated. Upon conclusions of the arguments by the
parties, Mr. S. P. Gupta, Joint Secretary who had heard the
parties prepared the note running into 19 pages (from pages
30 - 49) containing 47 paragraphs of original record. The note
B has been duly signed by Mr. S.P. Gupta, Joint Secretary on 17th
September, 2001. The High Court further noticed that in fact
this is the report which had been duly approved by the Secretary
on 18th September, 2001 and by the Central Government
Minister on 25th September, 2001. While making the
c endorsement of the approval, the Secretary has written as
under:-
"I endorse fully the above note of the Joint Secretary. This
is a very old case in which the parties have repeatedly
recourse to the courts. As such (sic) even now near
D litigation may follow. Therefore the decision of the Central
Government has to be in terms of a speaking order which
is backed by facts and law."
47. The High Court further notices that the impugned order
E dated 27th September, 2001 is, in fact, a verbatim copy of the
report/note prepared by Mr. S.P. Gupta, Joint Secretary. Upon
examination of the entire matter, the High Court has concluded
that the order ha\') been signed by Mr. R.P. Khatri merely to
communicate the approval of the Central Government to the
F parties.
48. We are of the considered opinion that the conclusions
reached by the High Court cannot be said to be contrary to the
established principles and parameters for exercise of the
power of judicial review by the courts. At this stage, we may
G also make a reference to a submission made by Mr. Krishnan
that the High Court did not give due consideration to the
grievance of the appellant raised in the writ petition with respect
to the merits because it assumed that the appellant had
attempted to bye-pass the alternative remedy of revision
H
KALINGA MINING CORPORATION v. UNION OF INDIA 851
& ORS. [SURINDER SINGH NIJJAR, J.]
available to it under Section 30 of MMDR Act read with Rules A
54 and 55 of the Rules. We are of the considered opinion that
the aforesaid submission of the learned counsel is wholly
misplaced. The High Court merely noticed that the matter had
been referred back to the Central Government on a limited
issue. Therefore, it was not open to the Central Government to B
re-open the entire controversy. It has been observed by the High
Court that such a power would only be available to the Central
Government in exercise of its Revisional Powers under Section
30 read with Rules 54 and 55 of the Rules. We also do not find
much substance in the submission made by Mr. Krishnan that C
the order dated 27th September, 2001 is vitiated as it has been
passed by an officer who did not give a hearing to the parties.
This is clearly a case of an institutional hearing. The direction
has been issued by the High Court for a hearing to be given
by the Central Government. There was no direction that any
particular officer or an authority was to give a hearing. In such D
circumstances, the orders are generally passed in the relevant
files and may often be communicated by an officer other than
the officer who gave the hearing. The legality of institutional
hearing has been accepted in England since the case of Local
Government Board Vs. Arlidge (supra). The aforesaid E
judgment was quoted with approval by this Court in Pradyat
Kumar Bose (supra). This Court approved the following
passage from the speech of Lord Chancellor in the aforesaid
case:
F
"My Lords, I concur in this view of the position of an
administrative body to which the decision of a question in
dispute between parties has been entrusted. The result of
its enquiry must, as I have said, be taken, in the ab§.ence
of directions in the statute to the contrary, to be intended G
to be reached by its ordinary procedure. In the case of the
Local Government Board it is not doubtful what this
procedure is. The Minister at the head of the Board is
directly responsible to Parliament like other Ministers. He
is responsible not only for what he himself does but for all H
852 SUPREME COURT REPORTS [2013] 1 S.C.R.
A that is done in his department. The volume of work
entrusted to him is very great and he cannot do the great
bulk of it himself. He is expected to obtain his materials
vicariously through his officials, and he has discharged his
duty if he sees that they obtain these materials for him
B properly. To try to extend his duty beyond this and to insist
that he and other members of the Board should do
everything personally would be to impair his efficiency.
Unlike a Judge in a Court he is not only at liberty but is
compelled to rely on the assistance of his staff."
C In view of the aforesaid settled position of law, it is difficult
to accept the submissions of Mr. Krishnan that the order dated
27th September, 2001 suffers from any legal or procedural
infirmity. In our opinion, the conclusions reached by the High
Court are in accordance with the settled principles of law.
D Although a large number of cases have been cited by the
learned counsel for the parties on either side, but it is not
necessary to consider all of them individually as the principles
with regard to observance of natural justice are well entrenched
in our jurisprudence. Undoubtedly, any decision, even if it is
E administrative in nature, which causes adverse civil
consequences must be passed upon hearing the concerned
parties. In our opinion, the Central Government has fully
complied with the aforesaid principle in passing the order dated
27th- September, 2001.
F
49. In view of the above, we find no merit either in Civil
Appeal No. 1013 of 2013 arising out of SLP (C)No. 23141 of
2007 or Civil Appeal No. 1014 of 2013 arising out of SLP (C)
No. 5130 of 2009. Both the appeals are, therefore, dismissed
with no order as to costs.
G
R.P. Appeals dismissed.
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