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Contempt petition – whether the petitioners would be entitled to the benefit of judgment dated 14.3.2012 passed in the case of BPSL or not. – three petitioners pray that the same directions as given in favour of BPSL in judgment dated 14.3.2012, be passed in their cases as well. This they claim on the basis of parity with BPSL. However, we are constrained to hold that, on the basis of such an argument, they cannot approach this court directly under Article 32 of the Constitution by filing writ petitions. – Apex court dismissed the writs leaving the issue open = Bhushan Power & Steel Ltd. ….. Appellant(s) Versus Rajesh Verma & Ors.. ….. Respondent (s) = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41444

   Contempt petition –   whether the petitioners would  be  entitled  to  the benefit of judgment dated 14.3.2012 passed in the case of BPSL or  not. – three petitioners pray that the same directions as given in  favour  of BPSL in judgment dated 14.3.2012, be passed in  their  cases  as  well. This they claim on the basis of  parity  with  BPSL.  However,  we  are constrained to hold that, on the basis of such an argument, they cannot approach this court directly under Article 32 of  the  Constitution  by filing writ petitions. – Apex court dismissed the writs leaving the issue open =

 

in Supreme Court  Bar  Association  v.  Union  of India & Anr.; (1998) 4 SCC 409;

           “42.  The contempt of court is  a  special  jurisdiction  to  be

           exercised sparingly and with caution whenever an  act  adversely

           affects the administration of justice or which tends  to  impede

           its course or tends to shake public confidence in  the  judicial

           institutions. This jurisdiction may also be exercised  when  the

           act complained of  adversely  affects  the  majesty  of  law  or

           dignity of the courts. The purpose of contempt  jurisdiction  is

           to uphold the majesty and dignity of the courts of law. It is an

           unusual type of jurisdiction combining “the jury, the judge  and

           the hangman” and it is so because the court is not  adjudicating

           upon any claim between litigating parties. This jurisdiction  is

           not exercised to protect the dignity of an individual judge  but

           to  protect   the   administration   of   justice   from   being

           [pic]maligned. In the general interest of the  community  it  is

           imperative that the authority of courts should not be imperilled

           and  there  should  be  no  unjustifiable  interference  in  the

           administration of justice. It is a matter between the court  and

           the  contemner  and  third  parties  cannot  intervene.  It   is

           exercised in a summary manner in aid of  the  administration  of

           justice, the majesty of law and the dignity of  the  courts.  No

           such act can be permitted which may have the tendency  to  shake

           the public confidence in the fairness and  impartiality  of  the

           administration of justice”.

27.    As a consequence, we hold that the Respondents/  Contemners  are

     in contempt of orders dated 14.3.2012  passed  by  this  Court  in  not

     complying with the directions in respect of Keora area. However, we are

     giving  one  final  opportunity  to  them  to  purge  the  contempt  by

     transmitting requisite recommendations to the  Central  Government.  It

     would  be  for  the   Central   Government   to   consider   the   said

     recommendations on its own merits and in accordance with law.  In  case

     the recommendation is sent within one month from the date  of  copy  of

     receipt of this order, we propose not to take any  further  action  and

     the respondents/ contemners shall stand discharged from  this  Contempt

     Petition. However, in case the respondents do not purge in  the  manner

     mentioned above, it would be open to the petitioners to point  out  the

     same to this Court by moving appropriate application and in that  event

     the Contemners shall be proceeded against.

     28.    With this, I.A. No. 14 in C.A. NO. 2790 of 2012 and I.A.  No.  2

     in I.A. NO. 14 in C.A. NO. 2790 of 2012 also stand disposed of.

     Writ Petitions

     29.    In so far as three writ petitions are concerned we need  not  go

     into the detailed arguments advanced by Counsel for the petitioners  in

     those petitions. As already noted above, for their own reasons all  the

     three petitioners pray that the same directions as given in  favour  of

     BPSL in judgment dated 14.3.2012, be passed in  their  cases  as  well.

     This they claim on the basis of  parity  with  BPSL.  However,  we  are

     constrained to hold that, on the basis of such an argument, they cannot

     approach this court directly under Article 32 of  the  Constitution  by

     filing writ petitions. It has already been  authoritatively  determined

     that  no  fundamental  right  of  the  petitioners  is   violated.   No

     fundamental right is violated by non-granting  of  mining  lease.  

    we  dismiss  these petitions giving liberty to the petitioners to approach the High  Court

     in the first instance and/ or any other forum which  is  available,  as

     per law. We make it clear  that  in  so  far  as  these  petitions  are

     concerned we have not dealt with the issues  on  merits.  Wherever  the

     petitions are filed, it would be open to the said forum  to  deal  with

     the question as to whether the petitioners would  be  entitled  to  the

     benefit of judgment dated 14.3.2012 passed in the case of BPSL or  not.

     All other issues  are  also  kept  open  to  be     agitated  in  those

     proceedings. Writ petitions are dismissed with liberty as aforesaid. 

 

2014 ( April.Part ) judis.nic.in/supremecourt/filename=41444

SURINDER SINGH NIJJAR, A.K. SIKRI

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CONMT. PET. (C) No. 374 of 2012 In C.A. No. 2790 of 2012
Bhushan Power & Steel Ltd. ….. Appellant(s)
Versus
Rajesh Verma & Ors.. ….. Respondent (s)
WITH
W.P. (C) No. 60 of 2013
W.P. (C) No. 194 of 2013
W.P. (C) No. 837 of 2013
I.A. No. 14 & I.A. NO. 2 IN I.A. No. 14
IN CIVIL APPEAL NO. 2790 OF 2012
J U D G M E N T
A.K SIKRI, J.
1. All the aforesaid matters were heard analogously as they are inter-
connected. In fact, it is the judgment dated 14.3.2012 passed in C.A.
No. 2790 of 2012 which has become the trigger point of all other cases.
C.A. No. 2790 of 2012 was filed by M/s. Bhushan Power and Steel Ltd.
(formerly known as Bhushan Limited) (hereinafter referred to as
‘BPSL’). That was an appeal against the judgment passed by High Court
of Orissa whereby the High Court had dismissed the writ petition of the
BPSL. Before proceeding further, we would like to narrate the nature of
different cases and the background in which they came to be filed.
CCP No. 374 of 2012
2. The erstwhile Bhushan Limited had proposed setting up of plant in some
identified villages in the District of Sambalpur, Orissa. For this
purpose it had made a request for acquisition of land, measuring 1250
acres, which was acquired for Bhushan Limited. It had also applied for
grant of lease of mining of iron ore for use in the proposed plant.
These applications were favourably considered by the State Government
which agreed to accord due priority to Bhushan Limited for grant of
suitable iron ore areas and also agreed to recommend the proposal to
the Government of India for grant of a Coal Block. Even a MOU was
entered into between the State Government and Bhushan Limited
containing the commitment of the State Government to recommend to the
Central Government, grant of iron ore mines for its use in the
proposed plant. For this purpose area earmarked for recommendation were
Thakurani area with 96 million tonnes iron ore reserves and Keora Area,
District Sundargarh for additional 128 million tonnes of iron ore; both
for 50 years requirement of the plant. Though various statutory and
other permissions required for setting up of the plant were granted and
the plant was also set up, but due to some in-fight between the family
members who owned Bhushan Limited, it faced difficulties in getting the
grant of iron ore lease.
3. In so far as granting of mining lease of iron ore reserves in the
aforesaid areas is concerned, it fell into rough weather. It resulted
into show cause notice dated 18.1..2006 by the State Government which
led to the decision that mining lease over the Thakurani area could not
be allowed on various grounds and the application made by Bhushan
Limited was premature. Thereafter, the Government of Orissa made a
recommendation to the Central Government on 9.2.2006 to grant mining
lease in favour of one M/s Neepaz Metallics (P) Ltd. in relaxation of
Rule 59(1) of the Mining Rules, for a period of 30 years. Challenging
these orders, Bhushan Limited filed the writ petition in the High Court
on 8.5.2006. This Writ Petition was dismissed by the High Court on
14.12.2007 and challenging this decision Special Leave Petition was
filed which was granted converting the SLP into C.A. No. 2790/2012.
This appeal was allowed by this Court vide judgment dated 14.3.2012
with the following directions:
“Accordingly, we allow the appeal and set aside the judgment and
order of the High Court of Orissa and also the decision of the
State Government dated 9.2.2006, rejecting the Appellant’s claim
for grant of mining lease. During the course of hearing, we have
been informed that Thakurani Block A has large reserves of iron
ore, in which the Appellants can also be accommodated. We,
accordingly, direct the State of Orissa to take appropriate
steps to act in terms of the MOU dated 15.5.2002, as also its
earlier commitments to recommend the case of the Appellants to
the Central Government for grant of adequate iron ore reserves
to meet the requirements of the Appellants in their steel plant
at Lapanga”.
4. It would be pertinent to mention that State of Orissa had filed Review
Petition seeking review of this judgment but the same was rejected.
Pursuant to the aforesaid directions, though the BPSL has been given
Thakurani Block A, the order has not been implemented qua Keora,
District Sundargarh. That is precisely the cause for filing Contempt
Petition (Civil) No. 374 of 2012 by BPSL.
I.A. No. 14 of 2013
5. The State of Orissa and its officials who are impleaded as
Contemners in the CCP have filed their replies to the CCP expressing
certain difficulties because of which they claim that the directions
given in the judgment are incapable of enforcement. Simultaneously,
Respondent No. 1/ State of Orissa has filed instant I.A. No. 14 of 2013
as well, in which certain subsequent developments which have taken
place after the passing of the judgment dated 12.3.2012 are traversed.
It is highlighted that there are certain other and legal proceedings
filed by them are pending at various stages in the High Court or in
this Court and the area claimed by them in those legal proceedings
overlap with the area which is the subject matter of grant to BPSL. A
reference is also made to subsequent judgment in the case of Sandur
Manganese & Iron Ore v. State of Karnataka; (2010) 13 SCC 1 which has
changed the legal position thereby making it difficult for the State to
recommend the case of the petitioner. It is also stated that the issue
which is dealt with by this Court in Sandur Manganese (Supra) was not
raised in the Writ proceedings/ Civil Appeal of the BPSL. On the basis
of the aforesaid averment prayer made in the I.A. reads as under:-
“Pass appropriate directions with regard to implementation of
the directions contained in final order and judgment dated
14.3.2012 passed by this Hon’ble Court in Civil Appeal No. 2790
of 2012 in so far as it relates to the mining lease applications
of the petitioner for an additional 128 million tonnes of iron
ore over lands in Keora area of Sundergarh District”.
I.A. NO. 2 OF 2013 IN I.A. NO. 14 OF 2013
6. In I.A. No. 14 of 2013, this I.A. is preferred by M/s. Shri
Mahavir Ferro Alloys Pvt. Ltd. The grievance of this applicant is
against the status quo order dated 21.4.2008 passed in the applications
filed by the BPSL. It is alleged that the applicant has filed 9
applications for grant of Iron Ore Mining Lease of different areas,
notified as well as non-notified, including the Thakurani area.
However, because of the status quo order the applications of the
applicant not being considered by the State Government which is
adversely affecting the interest of the applicant.
WRIT PETITION (CIVIL) NO. 60 OF 2013
7. While narrating the facts of C.A. No. 2790 of 2012 in brief, we
had mentioned about the inter se disputes between the family members of
erstwhile Bhushan Limited because of which BPSL faced difficulties in
getting the grant of iron ore lease. It so happened that during the
pendency of the aforesaid appeal, the family members resolved their
disputes. On 28.2.2006, Bhushan Limited altered its name to BPSL. Other
group got incorporated a company named as M/s. Bhushan Steel Limited
(BSL). BSL is the petitioner in the instant petition. This significant
development was taken note of in the judgment dated 14.3.2012 in the
following manner:-
“As indicated hereinbefore, on 21st April, 2008, this Court
passed an interim order in the Special Leave Petition filed by
Bhushan Limited directing the parties to maintain status quo with
regard to the lands indicated in the application filed by the
appellants for grant of mining lease. However, one of the most
significant developments that subsequently took place was that on
25th November, 2011, Shri B.B. Singhal and Shri Neeraj Singhal,
Vice-Chairman and Managing Director of Bhushan Steel and Strips
Ltd. filed affidavits withdrawing all their claims and rights in
the MOU dated 15th May, 2002, executed between the State
Government and Bhushan Limited and declaring that the said MOU
was and had always been in favour of Bhushan power & Steel Ltd.
The above named persons also prayed for deletion of their names
from the array of parties.”
XXXXXXX
The mutual settlement of the disputes between the members of the
Bhushan Group has altered the situation considerably, since BSSL
has withdrawn its claim under the MOU dated 15th May, 2002 and
has declared that the said MOU was and had always been executed
by the State Government in favour of Bhushan Power & Steel Ltd.,
which had set up its steel plant at Lapanga. As indicated
hereinbefore, although, the MOU was entered into by the State
Government with the Bhushan Group for setting up a steel plant at
Lapanga, at a later stage, BSSL also laid claim under the MOU for
setting up a separate steel plant at Mehramandali and a
suggestion was also made for execution of a fresh MOU between the
State Government and BSSL to this effect.”
8. It is the case of the BSL in the present Writ Petition that BSL
was a part of the then Bhushan Group. It executed a MOU dated 15.5.2002
with the State of Orissa. Consequent to a family settlement, M/s.
Bhushan Steel and Strips Ltd. (BSSL) executed a separate MOA dated
3.11.2005 in which the State of Orissa had identical duties and
obligations as those contained in 2002 MOU. On 12.4.2007, BSSL was re-
named as BSL herein. It is thus claimed that BSL is identically
situated as BPSL and, therefore, the benefit given to BPSL vide
judgment dated 14.3.2012 needs to be extended to the BSL as well. The
direction in the nature of mandamus is sought to implement the decision
of 12th IIAC Meeting dated 27.8.2003 and terms of MOA dated 3.11.2005
against the State Government by making appropriate recommendation to
the Central Government for allotment of the remaining portion in
Thakurani RF Block A, District Keonjhar i.e. 601.500 hectares applied
while ML Application No. 882 and the areas applied vide ML Application
No. 1079 i.e. 722.30 hectares approximately in village Kadalia,
Kuriyakudar, Mithirda etc. under Bonai sub-division, District Sundegarh
to meet the captive requirements of BSL plants.
9. In essence, the petitioner wants same treatment as is given to
BPSL and, therefore, has prayed for the extension of the benefit of
judgment dated 12.3.2012 to BSL as well.
WRIT PETITION (C) NO. 194 OF 2013
10. This Writ Petition is filed by Jindal Steel and Power Limited
(hereinafter referred to as ‘Jindal Steel’). It had entered into MOU
with the State of Orissa on 8.5.2002. It is stated in the writ petition
that this petitioner became an intervenor in C.A. No. 2790 of 2012 to
protect its interest which has been duly taken note of in the judgment
dated 14.3.2012 in the following manner:-
“Appearing for the Intervener, M/s. Jindal Steels Ltd., Mr. K.V.
Vishwanathan, learned Senior Advocate, submitted that so long as
any allotment made in favour of the Appellants did not impinge
on the allotment made in favour of M/s. Jindal Steels Ltd;, it
could have no grievance against a separate allotment being made
in favour of the Appellants.”
11. It is pleaded that the case of Jindal Steel is even on a better footing
for grant of mining lease, application for which purpose are pending
with the State of Orissa. It had also signed the MOU for setting up an
integrated Steel Plant wherein similar promise was made by the State
Government for grant of a mining lease. Additionally, Jindal Steel had
the advantage of being an earlier applicant for the mining lease in
regard to Thakurani RF Block A area which was also a part of an MOU by
BPSL. It is further mentioned that 16 mining lease applications were
received in respect of the said area and the Director of Mines vide his
report dated 8.11.2002 rejected all other applications except that of
Jindal Steel herein, BPSL and three other applicants. In the case of
Jindal Steel, recommendation was for 264 hectares in Thakurani RF Block
A as against 383 Hectare in respect of BPSL. It is also stated that
even when recommendation in respect of BPSL in Thakurani area is made
by the State Government and approved by the Union of India,
recommendation of Jindal Steel is still pending with the State
Government. It is thus, pleaded that the case of the petitioner, Jindal
Steel, is squarely covered by judgment dated 14.3.2012 passed in C.A.
NO. 2790 of 2012 and benefit thereof be extended to this petitioner as
well.
WRIT PETITION (C) NO. 837 OF 2013
12. This Writ Petition is filed by Shri Mahavir Ferro Alloys Pvt.
Ltd. It has also proposed to set up a 0.35 MTPA Captive Integrated
Steel Plant with additional facilities and 60 MW Captive Power Plant in
Sundargarh district had an overall investment of Rs. 435 crores. This
petitioner claims that pursuant to MOU entered into with the State
Government for grant of mining leases, it had submitted its application
in this behalf. However, more than 10 years have elapsed but the State
Government has not recommended its case, primarily because of status
quo orders passed by this Court in C.A. NO. 2790 of 2012. It is pointed
out that for this reason this petitioner has already filed I.A. No. 2
in I.A. NO. 14 of 2013 in C.A. NO. 290 of 2012. Case of this
petitioner, again, is that it is equally circumscribed and placed as
BPSL as well as Jindal Steel and, therefore, entitled to the grant of
mining lease as done in favour of BPSL by this Court vide judgment
dated 14.3.2012.
13. We have reproduced, hereinabove gist of the cases filed by different
parties to get the favour of the proceedings. It becomes obvious and
can be readily understood that in so far as BPSL is concerned, by means
of Contempt Petition, it is seeking the enforcement of the directions
contained in its favour in the judgment dated 14.3.2012 passed in C.A.
NO. 2790 of 2012. Three other parties namely BSL, Jindal Steel and
Mahavir Ferro Alloys (P) Ltd. have filed Writ Petitions claiming same
relief as given to the BPSL vide judgment dated 14.3.2012 on the ground
that they are placed in the similar or even better position than BPSL
and, therefore, entitled to same treatment. Further, as already pointed
out above, the State Government has ventured to exhibit its
helplessness in carrying out the directions contained in the judgment
dated 14.3.2012 even qua the beneficiary of the said judgment namely
BPSL. In so far as other three writ petitioners are concerned, not only
same difficulties are sought to be projected, it is also mentioned that
are precluded from seeking same relief as given to BPSL for various
reasons. That apart, even the maintainability of the writ petitions
under Article 32 of the Constitution filed by these petitioners is
questioned. In such a scenario it is apposite to first deal with the
CCP filed by BPSL.
CONTEMPT PETITION (C) NO. 374 OF 2012 In
C.A. No. 2790 OF 2012
14. We have already narrated the gist of factual background in which
BPSL approached the High Court and thereafter this Court for grant of
mining leases of iron ore. As already mentioned, in the MOU entered
into between the parties, the State Government had committed to
recommend to the Central Government, for grant of iron ore mines to the
BPSL for its use in the plant to be set up at Lapanga. In this behalf
it was agreed to make the following recommendations to the Central
Government:-
(a) For grant of 96 million tonnes iron ore reserves in
Joda Barbil Sector of Keonjhar (Thakurani area) for 50 years
requirement of the plant.
(b) For additional 128 million tonnes of iron ore reserves
in Keora, District Sundergarh, to meet a requirement of 1.6.
million tonnes for 50 years.
15. It is not necessary to set out the detailed facts which have
been noted in judgment dated 14.3.2012, pertaining to the grant of
permissions by various authorities enabling BPSL to get the land,
electricity, permission for installation of a Captive Power Plant etc.
etc. Armed with those permission, the BPSL set up the plant in Lapanga
in the district of Sambalpur, Orissa. BPSL claims that is has invested
Rs. 25,000 crores in this project. It is further mentioned that for
running of this steel plant, uninterrupted supply of iron ore is
essential. This plant was set up in a backward area of Orissa persuant
to the scheme of the State Government. It is for this reason that the
State Government agreed to grant mining rights of iron ore reserves,
keeping in view a total requirement of 200 million tonnes over a period
of 50 years for the smooth running of the said plant. For this reason
MOU dated 15.5.2002 was entered into. Since the grant of mining lease
is by the Central Government under the Mining Act, State Government
which is a recommendatory authority had agreed to recommend the case of
the BPSL. There was deadlock for some period because of infight within
Bhushan family. However, this impasse came to be resolved. Taking note
of these developments the Court was of the opinion that there were two
issues which arose for considerations namely:
(a) Whether the Memorandum of Understanding dated 15th
May, 2002 continues to subsist in favour of the appellants?
(b) Whether the State Government is obliged to make
recommendations for the grant of iron ore mines in terms of
the stipulations contained in the aforesaid MOU dated 15th
May, 2002 and whether in respect of the areas which had not
been notified under Rule 59(1), the State Government can make
a recommendation for relaxation of Rule 59(1) under Rule 59(2).
16. The Court deliberated at length on these issues and decided in
favour of BPSL holding that MOU dated 15.5.2002 still subsisted in
favour of the BPSL and also that State Government was under obligation
to make recommendations as per the said MOU. The most relevant part of
discussion, in this behalf, reads as under:
“Pursuant to the MOU with Bhushan Limited, the State Government
had not only allotted land for the setting up of the steel plant
at Lapanga, it had even extended all help for the commissioning
of the plant, which, in fact, had already started functioning.
However, it is the claim made by BSSL under the MOU executed on
15th May, 2002, that had created obstructions in the setting up
of the steel plant at Lapanga. Despite having allotted land and
granted sanction to Bhushan Limited to take steps for
construction of the said plant, it was subsequently contended
that the application filed by Bhushan Limited was premature and
could not, therefore, be acted upon. Specific instances have
been mentioned hereinabove of the steps taken by the various
departments in extending cooperation to Bhushan Limited to set
up its steel plant at Lapanga. To now turn around and take a
stand that the application made by Bhushan Limited was
premature, is not only unreasonable, but completely unfair to
Bhushan Limited, who have already invested large sums of money
in setting up the plant. The State Government had, on its own
, entered into the MOU with Bhushan Limited on 15th May, 2002,
and had even agreed to request the Central Government to allot
mining areas and coal blocks for operating the steel plant.
Whatever differences that may have resulted on account of the
dispute within the Bhushan Group, which could have led to the
rethinking on the part of the State Government, have now been
laid to rest by virtue of the settlement arrived at between the
Bhushan Limited (now BPSL) and BSSL. The State Government has
also accepted the said position. In addition to the above, the
action taken by the State Government appears to us to be highly
unreasonable and arbitrary and also attracts the doctrine of
legitimate expectation. There is no denying the fact that the
Appellants have altered their position to their detriment in
accordance with the MOU dated 15th May, 2002. whatever may have
been the arrangement subsequently arrived at between the State
Government and BSSL, the original MOU dated 15th May, 2002,
continued to be in existence and remained operative”.
17. In so far as reserve of 96 million tonnes of iron ore in
Thakurani mines are concerned, the State Government had made the
recommendation to the Central Government, which has also approved the
same in favour of the BPSL. The dispute now relates to Keora mines for
a reserve of 128 million tonnes.
18. Respondents/ Contemners do not dispute (and in fact there is no
scope for any dispute) that the aforesaid directions contained in the
judgment have become final. Review Petition was filed by the State
Government but unsuccessfully. One would, therefore, command for
obeying these directions. However, the State Government/ Contemners
have pleaded their helplessness by narrating certain circumstances
which are captured herein below.
“(a) These areas fall almost entirely within the areas notified
on 23.8.1991 under Rule 59(1) of the Mineral Concession Rules,
1960. The validity of the notification dated 23.8.1991 is an
issue in SLP(c)No. 31593 of 2010 and connected cases which are
now listed for hearing on 17.01.2013 before another Division
Bench of this Hon’ble Court.
(b) Further, it is seen that the applied area is overlapping
with the applied area of several other applicants, including
M/s. Larsen & Toubro Limited and M/s. Tata Iron and Steel Co.
Limited.
(c) It is also pointed out that earlier on 21.10.1997 an area
of 998.93 hectares overlapping with applied area of the BPSL,
was recommended in favour of M/s Larsen & Toubro Ltd. in
puruance with the said company. However, this recommendation
was withdrawn for certain reasons. Thereafter, even revised
ML/ PL application of M/s. Larsen and Toubro Ltd. Were rejected.
The said company challenged the order of rejection before the
Revisional Authority i.e. Central Government which passed
orders dated 10.7.2003 wherein direction is given to
consider application of M/s. Larsen & Toubro Ltd. Alongwith
about 196 applications for grant of mining lease and after
granting an opportunity of hearing to all the applicants.
However, BPSL is outside the 196 applications that were to be
considered afresh.
(d) M/s. Larsen and Toubro Ltd has challenged the aforesaid
orders of the Central Government by filing Writ Petition in the
High Court which was dismissed by the Single Judge of Delhi High
Court. Appeal thereagainst was dismissed by the Division Bench
on 3.7.2012. Order of the Division Bench of the High Court is
challenged by filing SLP (C) NO. 33812 of 2012 in which notice
has been issued and as the matter is sub-judice in those
proceedings it is difficult to pass any orders qua BPSL at
this stage.
(e) It is further pointed out that in the case of Sandur
Mangnese (Supra) this Court has considered the provisions of
Section 11(4) of the MMDR Act and has concluded that all
applications filed over areas notified under Rule 59(1) of the
Mineral Concession Rules, 1960 deserve simultaneous
consideration. As per the mandate of Section 11(4) of the
MMDR Act, the State Government may grant a mining lease over a
notified area to such one of the simultaneous applicants after
considering the matters specified in sub-section (3) of Section
11. The process of simultaneous consideration of the
applications filed over Khajhurdihi R.F. In Sundergarh and
Rakma, Marsuanand Tiriba of Keonjhar district had remained
stalled due to the various stay orders passed in litigations
concerning such area. Subject to the orders, if any, passed
by this Hon’ble Court in this application, the process of
simultaneous consideration of applications will take
considerable time in view of the large number of overlapping
applications over the areas in question. Each of these
applicants is required to be given an opportunity of personal
hearing and credentials of these applicants are required to be
evaluated for assessment of relative merits in terms of
Section 11(3) of the MMDR Act.”
19. It is thus, argued that the developments narrated above and the
statutory mandate embodied in Section 11(4) of the MMDR Act, 1957 have
come in the way of the Respondent State in implementing the final order
and judgment dated 14.3.2012 in so far it relates to the Keora area of
Sundergarh district. It is also sought to be argued that the question
of entitlement of the petitioner to the recommendation of mines in the
Keora area, which are almost entirely covered under notification issued
under Rule 59(1) of MC Rules, 1960 with specific reference to Sections
11(4) and 11(3) of the MMDR Act was not raised in the Writ Proceedings/
Civil Appeal. During the course of the implementation of the order of
this Hon’ble Court dated 14.3.2012 passed in Civil Appeal No. 2790 of
2012, the Respondent No. 1 is faced with the difficulties with regard
to the Keora area as enumerated above. Hence, this application for
appropriate directions.
20. The question is as to whether such a plea can be raised to avoid
implementation of the directions contained in the judgment? Our answer
is in the negative, having regard to the categorical and authoritative
principle of law enunciated by various judgments of this Court. From
the reading of these judgments one can comfortably get a complete
answer to the so-called difficulties feigned by the State Government/
Contemners.
21. First judgment which needs to be noticed is in the case of T.R.
Dhananjaya v. J. Vasudevan; (1995) 5 SCC 619. The following discussion
contained in the said judgment squarely applies here:-
“10. When this order was passed, what remained for the
respondent was only implementation of the order passed by this
Court in furtherance of the action taken thereunder by the
Corporation. It is now clear that instead of implementing the
order, an attempt has been made to circumvent the same and deny
the benefits to the petitioner. As stated earlier, the
petitioner is a Corporation employee and the stand of the
Government appears to be to give benefit to their employees. So,
an attempt has now been made to get into the rule position and
to find whether the petitioner is eligible to be considered for
promotion to the post of Executive Engineer, Superintending
Engineer and Chief Engineer. It is now stated that according to
the rules the petitioner would be eligible only as
superintending engineer and not as Chief Engineer. When
direction was given in LA. 3 of 1993, Government was a party to
the proceedings and it was never brought to our notice that the
petitioner was not eligible. On the other hand, the Division
Bench of Karnataka High Court upheld the right of the petitioner
which became final.
11. Question is whether it is open to the respondent to take
at this stage this volte-face step. It is seen that all through
Government was a party, when the direction was given in LA. No.
3 filed by the petitioner, it was not brought to out notice that
the petitioner was not eligible for promotion, in contradiction
with Dasegowda, or any other. When the claim inter se had been
adjudicated and the claim of the petitioner had become final and
that of Dasegowda was negatived, it is no longer open to the
Government to go behind the order and truncate the effect of the
orders passed by this Court by hovering over the rules to get
round the result, to legitimise legal alibi to circumvent the
orders passed by this Court. Thus, it is clear that the
concerned officers have deliberately made concerted effort to
disobey the orders passed by this court to deny the benefits to
the petitioner. So, we are left with no option but to hold that
the respondent has deliberately and wilfully, with an intention
to defeat the orders of this Court, passed the impugned order.”
22. Another judgment cited at the bar is Prithawi Nath Ram v. State
of Jharkhand and Others; (2004) 7 SCC 261. Para 8 of the said judgment
makes the following reading:
“8. If any party concerned is aggrieved by the order which in
its opinion is wrong or against rules or its implementation is
neither practicable nor feasible, it should always either
approach the court that passed the order or invoke jurisdiction
of the appellate court. Rightness or wrongness of the order
cannot be urged in contempt proceedings. Right or wrong, the
order has to be obeyed. Flouting an order of the court would
render the party liable for contempt. While dealing with an
application for contempt the court cannot traverse beyond the
order, non-compliance with which is alleged. In other words, it
cannot say what should not have been done or what should have
been done. In cannot traverse beyond the order. It cannot test
correctness or otherwise of the order or give additional
direction or delete any direction. That would be exercising
review jurisdiction while dealing with an application for
initiation of contempt proceedings. The same would be
impermissible and indefensible. In that view of the matter, the
order of the High Court is set aside and the matter is remitted
for fresh consideration. It shall deal with the application in
its proper perspective in accordance with law afresh. We make it
clear that we have not expressed any opinion regarding
acceptability or otherwise of the application for initiation of
contempt proceedings”.
23. This very principle has been reiterated by in Bihar Finance
Service H.C. Coop. Soc. Ltd. v. Gautam Goswami and Ors.; (2008) 5 SCC
339 in the following words:
“32. While exercising the said jurisdiction this Court
does not intend to re-open the issues which could have been
raised in the original proceeding nor shall it embark upon other
questions including the plea of equities which could fall for
consideration only in the original proceedings. The Court is not
concerned with as to whether the original order was right or
wrong. The court must not take a different view or traverse
beyond the same. It cannot ordinarily give an additional
direction or delete a direction issued. In short, it will not do
anything which would amount to exercise of its review
jurisdiction”.
24. We cannot lose sight of the fact that there is a judgment, inter
parties, which has become final. Even when the Civil Appeal was being
heard, certain other parties claiming their interest in these very
lands had moved intervention applications which were dismissed. At that
time also it was mentioned that there are 195 applicants. However,
notwithstanding the same, this Court issued firm directions to the
State Government to recommend the case of the petitioners for mining
lease in both the areas. In view of such categorical and unambiguous
directions given in the judgment which has attained finality, merely
because another judgment has been delivered by this Court in Sandur
Manganese case, cannot be a ground to undo the directions contained in
the judgment dated 14.3.2012. In so far as law laid down in Sandur
Manganese (Supra) is concerned, that may be applied and followed by the
State Government in respect of other applications which are still
pending. However, that cannot be pressed into service qua the
petitioner whose rights have been crystallised by the judgment rendered
in its favour. It cannot be re-opened, that too at the stage of
implementation of the said judgment.
25. We would like to place on record the arguments of learned Senior
Counsel for the petitioner that the total area under notification is
731.67 sq. kms. and out of this 406 sq. km. is yet to be allotted. The
area which comes to the share of the petitioner under MOU is 13.91 sq.
km. which is barely 3 percent of 406 sq. km and, therefore
recommendation by the State Government in favour of the petitioner
cannot be stalled or put to naught only on the basis of inchoate
applications, fate whereof is yet to be decided. It is also pointed out
that in so far as the petitioners in other writ petitions are concerned
area claimed by them is not overlapping with the petitioner’s area.
However, it may not even be necessary to go into these contentions in
detail. Once we hold that the respondents are bound to implement the
direction contained in judgment dated 14.3.2012, in so far as the State
Government is concerned, it is obliged to comply therewith and such
matters, alongwith other relevant considerations, can be left to the
wisdom of the Central Government while taking a decision on the
recommendation of the State Government.
26. In so far as intervention applications by Tatas and LNT are
concerned these are dismissed as non maintainable, in view of law laid
down in by this Court in Supreme Court Bar Association v. Union of
India & Anr.; (1998) 4 SCC 409;
“42. The contempt of court is a special jurisdiction to be
exercised sparingly and with caution whenever an act adversely
affects the administration of justice or which tends to impede
its course or tends to shake public confidence in the judicial
institutions. This jurisdiction may also be exercised when the
act complained of adversely affects the majesty of law or
dignity of the courts. The purpose of contempt jurisdiction is
to uphold the majesty and dignity of the courts of law. It is an
unusual type of jurisdiction combining “the jury, the judge and
the hangman” and it is so because the court is not adjudicating
upon any claim between litigating parties. This jurisdiction is
not exercised to protect the dignity of an individual judge but
to protect the administration of justice from being
[pic]maligned. In the general interest of the community it is
imperative that the authority of courts should not be imperilled
and there should be no unjustifiable interference in the
administration of justice. It is a matter between the court and
the contemner and third parties cannot intervene. It is
exercised in a summary manner in aid of the administration of
justice, the majesty of law and the dignity of the courts. No
such act can be permitted which may have the tendency to shake
the public confidence in the fairness and impartiality of the
administration of justice”.
27. As a consequence, we hold that the Respondents/ Contemners are
in contempt of orders dated 14.3.2012 passed by this Court in not
complying with the directions in respect of Keora area. However, we are
giving one final opportunity to them to purge the contempt by
transmitting requisite recommendations to the Central Government. It
would be for the Central Government to consider the said
recommendations on its own merits and in accordance with law. In case
the recommendation is sent within one month from the date of copy of
receipt of this order, we propose not to take any further action and
the respondents/ contemners shall stand discharged from this Contempt
Petition. However, in case the respondents do not purge in the manner
mentioned above, it would be open to the petitioners to point out the
same to this Court by moving appropriate application and in that event
the Contemners shall be proceeded against.
28. With this, I.A. No. 14 in C.A. NO. 2790 of 2012 and I.A. No. 2
in I.A. NO. 14 in C.A. NO. 2790 of 2012 also stand disposed of.
Writ Petitions
29. In so far as three writ petitions are concerned we need not go
into the detailed arguments advanced by Counsel for the petitioners in
those petitions. As already noted above, for their own reasons all the
three petitioners pray that the same directions as given in favour of
BPSL in judgment dated 14.3.2012, be passed in their cases as well.
This they claim on the basis of parity with BPSL. However, we are
constrained to hold that, on the basis of such an argument, they cannot
approach this court directly under Article 32 of the Constitution by
filing writ petitions. It has already been authoritatively determined
that no fundamental right of the petitioners is violated. No
fundamental right is violated by non-granting of mining lease. (See
(2012) 11 SCC 1 and (1973) 1 SCC 584).
30. That apart, there are few other aspects, aptly pointed out by
Mr. L. Nageswara Rao, learned ASG, which come in the way of
maintainability of the instant petitions. He, inter alia, submitted
that atleast in respect of applications which are still pending and yet
to be decided, judgment in Sandur Manganese (Supra) shall have to be
applied as it does not remain virgin area, which was the position when
the case of BPSL was decided. He had made various other submissions on
merit as well. Without going into all these issues, we dismiss these
petitions giving liberty to the petitioners to approach the High Court
in the first instance and/ or any other forum which is available, as
per law. We make it clear that in so far as these petitions are
concerned we have not dealt with the issues on merits. Wherever the
petitions are filed, it would be open to the said forum to deal with
the question as to whether the petitioners would be entitled to the
benefit of judgment dated 14.3.2012 passed in the case of BPSL or not.
All other issues are also kept open to be agitated in those
proceedings. Writ petitions are dismissed with liberty as aforesaid.
……………………………..J.
[Surinder Singh Nijjar]

 
……………………………..J.
[A.K. SIKRI]
New Delhi
April 22, 2014

 

 

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