ClyislaR B GSI v. Union of India

HON'BLE SHRI YATINDRA SINGH. C.J. & HON'BLE SHRI SUNIL KUMAR SINHA. J AFR

W.A.No.1006/2012 APPELLANT SKS Ispat Ltd RESPONDENTS Union of India and others Versus And

W.A.No.1007/2012 APPELLANT Satya Power and Ispat Ltd RESPONDENTS Union of India and others Versus WRITAPPEALS UNDER SECTION 2 (11 OF THE CHHATTISGARH HIGH COURT (APPEAL TO DIVISION BENCH) ACT, 2006 Appearance: Shri Manoj Sharma, Shri B.P. Sharma, Shri Vinod Chawda and Shri Ankit W.A.No.1006/2012. Appellant Singhal, counsel Shri Ravish Agrawal, Sr. Advocate with Shri Sankalp Kochar, counsel for the Appellant in W.A. No. 1007/2012. Smt. Fouzia Mirza, Assistant Solicitor General for Union of India. Shri Kishore Bhaduri, Additional Advocate General for the State. Shri Amit Singh Chadha Sr. Advocate witth Shri Rohit Choudhary and Shri Abhishek Sinha, counsel for Prakash Industries Ltd. ORDER (12th December, 2012)

1. These writ Appeals are against the order of the single judge, dated 12.7.2012, allowing writ petitjpn (C) number 362 of 2012 and 363 of2012 '——^__* ' ^ ''"•"e'-i;^^S. ^ and setting aside the order of the Central Government dated 13.4.2012. The main question involved in these writ appeals is, whether they are maintainable under Section 2 of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 (the 2006 Act). THE FACTS

2. notified areas under Applications were filed for prospecting licenses in different non- (Development and They were considered by the State the Mines and Minerals Regulation) Act, 1957 (the Act). Government on 30.07.2008 and apart from others, the following recommendation/ non-recommendations were made: • An area of 440.75 hectares in Sahaspur-Lohara District Kabirdham (Lohara area) was recommended in favour of Prakash Industries Ltd (Prakash-lndustries); • No area was recommended for SKS Ispat Ltd (SKS-lspat) as well as Satya Power & Ispat Ltd (Satya-Power) on the ground that 876.71 hectares in Khara forest range, District Kabirdham (Khara area) and 135.61 hectares in Rajhara District Durg (Rajhara area) respectively were already recommended in their favour. Against the aforesaid order of the State Government, SKS-lspat 3. and Satya-Power (jointly referred to as the Appellants) filed revisions before the Central Government under Section 30 of the Act.

While deciding the revisions, the Central Government recorded the following findings: • The State Government has recorded contradictory finding in respect of 750.30 hectares of land at Halba Bina Pal, district fact in Kanker (Halbabinapal area) and has suppressed vital its respect; • SKS-lspat was the earlier applicant than Prakash-lndustries and had preferential claim. It was ignored because of the '"£?-%• /^_ ^ v^^StesssiB ^ ^ aforesaid suppression as well as by mentioning that land was recommended in its favour in Khara area; • The impugned area was free and not notified, therefore, provisions of Section 11(2) of the Act should have been relied upon by the State Government, instead of invoking Section 11(5); • No special reasons have been recorded by the State Government under Section 11(5) of the Act for ignoring the preferential claim; • The area was not available for grant and the State Government extended undue favour to Prakash-lndustries; • The action of the State Government was arbitrary and violated section 11(2) oftheAct.

On the basis of the aforesaid findings, the Central Government allowed the revisions on 13.4.2010 and remanded the matter to the State Government for re-consideration.

The Prakash-lndustries initially filed writ petitions before the Delhi High Court and thereafter withdrew them and filed WP(C) 362/2012 and 363/2012 inthisCourt.

While deciding the writ petitions, the single judge recorded the following findings: • Prakash-lndustries was the earlier applicant than SKS-lspat for Khara area, yet over an area of 876.71 hectares in Khara area (approximately double the present area of Lohara area) was recommended in favour of SKS-lspat on the ground that land at Halbabinapal area (that was already recommended in favour of SKS-lspat) may not

750.30 hectares of receive forest clearance; • The manner in which the consideration had been made for 'i^^'S^ V. .A'^^.iS '. s^> J g ;4 ^'ltssaBff' ^ ^ 4 Lohara and Khara area demonstrated (as both considerations were made on the same date) that the State Government was alive to the fact that Khara area is in the process of recommendation in favour of SKS-lspat as Halbabinapal area already recommended in favour of SKS-lspat may not get forest clearance; The aforesaid factor was taken in favour of SKS-lspat for recommendation of Khara area in its favour. Therefore, while considering Lohara area, the file notings mentioned both the areas as available in paragraph 3 of noting dated 29.1.2007. Thus, the file notings were neither contradictory nor arbitrary or pre-planned; In any case, SKS-lspat having been benefited by receiving recommendation in its favour for Khara area on the ground that Halbabinapal area may not get same cannot be used to its advantage when Lohara area was forest clearance, being considered; While recommending grant Industries, the State Government had considered special in favour of the Prakash- reasons as mentioned in the chart that the production of the Prakash-lndustries was more than any other applicant however, it did not have proportionate prior allocation the declared mineral corresponding to its demand under policy of the State; Similar special reasons as aforesaid were assigned, while recommending Khara area in favour of SKS-lspat over 876.71 acres. This was upheld by the Delhi High Court in the matter of Real Ispat and Power Limited v. Union of India and others 181 (2011) Delhi Law Times 320; While recommending grant of prospecting license to Prakash- Industries, the State has considered the investment already made/ proposed investment of Rs.1017 crores to be made by t-^S;^^"%x ^. .' ^'""s' % •^y'l; ^ -'^"y '"^b.-y •5^ ^ the Prakash-lndustries pursuant to MoU. These were special reasons for exercising power u/s 11 (5) of the Act; The Central Government misread the file notings and there • was perversity in its order.

On the aforesaid findings, the writ petitions were allowed and the order of the central government dated 13.4.2010 was set aside. Hence, the present appeals by SKS-lspat and Satya-Power (the Appellants). POINTS FOR DETERMINATION

We have heard counsel for the parties. The following points arise for determination in the case: (i) Whether, while exercising the powers under Section 30 of the Act, the Central Government acts as a tribunal; (ii) Whether the order of the single Judge was under Article 226 or 227 of the Constitution; (iii) Whether the present writ appeals are maintainable; (iv) Whfether the single judge committed an illegality in setting aside the order of the Central Government. 1st POINT: CENTRALGOVERNMENTACTSASATRIBUNAL

In Durga Das Basu's Shorter Constitution of India 14thedition (page 864-865), the basic tests for determining whether an authority is a tribunal or not, have been rightly summarised as follows: '(a) (b) (c) That the power of adjudication has been conferred on the authority in question by statute; That such adjudicating power inherent power exercised in discharging its jud/c/a/ function. If there a //s and the decision of the authority is binding and is a part of the State's final.' ,. .j'":;K^IIS^\ '""%\ "s~ri '/ '&» ;¥'" -3i! ^ In case, an authority hearing an administrative appeal or revision, 11. satisfies the aforesaid criteria then it is a 'tribunal' subject to supervisory jurisdiction under article 227 ofthe Constitution of India.

The question is whether the Central Government while deciding the revision under Section 30 of the Act, satisfies the aforesaid criteria or not. Let's consider the first criterion, whether the power is conferred by a statute or not. Power Conferred By A Statute

Mines and mineral are the natural wealth of the nation and the State is merely a trustee. The natural wealth is to be used for the benefit of the public and the State is under legal duty to protect it.

The Supreme Court has established the following principles by different decisions (for citation see below)1 in order environment and natural wealth: to protect (i) (ii) (iii) (iv) (v) (vi) There should be Sustainable Development. Precautionary Principles should be adopted. Polluter Pays. Public Trust Doctrine. Save Forests, trees, biodiversity. The RuleofAbsolute Liability.

The concept of sustainable development was initiated in the Stockholm Declaration of 1972.2 It was given definite shape in 1987 by ' 2