Kalinga Mining Corporation Vs. Union of India (Uoi) and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/534395
SubjectCommercial
CourtOrissa High Court
Decided OnJul-02-2001
Case NumberOriginal Jurn. Case No. 11537 of 1999
JudgeR.K. Patra and ;P.K. Misra, JJ.
Reported inAIR2002Ori83
ActsMines and Minerals (Regulation and Development) Act, 1957 - Sections 5 and 5(1); Mines and Minerals Concession Rules, 1960 - Rule 25A(1)
AppellantKalinga Mining Corporation
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateI. Mohanty, ;B.K. Sharma and ;B.K. Dash, Advs.
Respondent AdvocateD.C. Mohanty, Sr. Standing Counsel, ;G.K. Mohanty, Addl. Govt. Adv., ;B.A. Mohanty, A. Mohapatra, A.C. Swain and J. M. Rout, ;R.K. Mohapatra, S. Swain, S. Patra and S.C. Panda
DispositionPetition allowed
Cases Referred(Thiru Manickam and Co. v. The State of Tamil Nadu). Their Lordships
Excerpt:
commercial - mining lease - grant of - section 5(1) of the mines and minerals (regulation and development) act, 1957 - petitioner is registered partnership firm applied to state government for grant of prospecting licence for iron and manganese - licence granted in respect of reduced area - prospecting licence was executed for one year - in meantime, petitioner applied for grant of mining lease for rest area - application not disposed of within statutory period - revision against deemed rejection before central government - directed state government to consider and dispose of application on merit - state government issued fresh notification for re-grant licence - pursuant to said notification, six applicants including petitioner and one dr. s submitted their applications for grant of mining lease - none of applications disposed of by state government within time prescribed and deemed to have been rejected - revisions before central government against 'deemed rejection' by petitioner and dr. s - allowed and state government directed to consider applications - no action was taken - revision before central government - rejected - petitioner filed writ petition for issue of writ of mandamus directing state government to grant it mining lease - dismissed writ petition holding that in meantime disputed area had been thrown open and it had already applied for grant of mining lease which was pending consideration before state government - pursuant to remand order, state government recommending grant of lease in favour of dr. s and sought for approval - however, central government refused to accord its approval - state government rejected all application of applicants - consequently, revisions filed before central government by all applicants - allowed with direction to state government to pass fresh order on merit - against this order, dr. s filed writ petition - this court allowed writ petition - thereafter pursuant to direction of this court, central government passed cryptic order conveying its approval to grant of mining lease in favour of legal heirs of late dr. s(who in meantime died) - being aggrieved, petitioner filed writ petition - allowed writ petition by quashing aforesaid order of central government and directed it to reconsider matter and pass fresh speaking order - pursuant to aforesaid direction central government has passed impugned order wherein grant of mining lease in favour of legal heirs of late dr. s - hence, present petition - held, since recommendation was made for grant of mining lease in favour of legal representatives of deceased dr. s, adversely affecting petitioner - it is violation of natural justice also - in result, impugned order of central government is quashed - matter is remitted to it for fresh disposal in accordance with earlier directions issued by this court - central government to dispose of matter afresh by speaking order after notice to legal representative of deceased dr. s as early as possible - writ petition is allowed accordingly - labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - being aggrieved by such 'deemed rejection',the petitioner as well as dr. nor am i satisfied that principles of natural justice call for such a hearing. it is now well settled that judicial review under article 226 of the constitution cannot be converted to appeal judicial review is directed not against the decision but it is confined to the examination of the decision-making process.r. k. patra, j.1. in this writ petition, the petitioner seeks quashing of the order dated 8-4-1999 of the government of india, ministry of steel and mines (department of mines) communicated in its letter no. 2/9/ 94-m, iv at annexure 3/1 by which it has accorded its approval under section 5(1) of the mines and minerals (regulation and development) act, 1957 to the grant of mining lease for iron ore and manganese ore over an area of 171.826 hectares in village kalaparbat hill range of keonjhar district in favour of the legal heirs of late dr. sarojini pradhan (opposite parties 9 and 10). petitioner further claims that under section 11(1) of the aforesaid act it has got preferential right over its rival applicants in respect of the area in question and prays for issuance of direction to the opposite parties, particularly opposite party nos. 1 and 2 to grant to it the mining lease.2. the dispute centres around grant of mining lease which dates back to early 1960s. it has not yet ended up, thanks to the litigious battles being fought by the concerned parties at every stage. it would be, therefore, profitable to trace its history and delineate facts as briefly as possible.the petitioner which is a registered partnership firm applied to the state government for grant of prospecting licence for iron and manganese ore over an area of 520 acres in kalaparbat area of keonjhar district on 27-10-1953. the state government on 15-9-1961 passed orders granting prospecting licence to it in respect of a reduced area of 480 acres. after compliance of necessary formalities, prospecting licence was executed for one year from 17-10-1962 to 16-10-1963. in the meantime on 4-9-1961, the petitioner applied to the state government for grant of mining lease for iron and manganese ore over 420 acres. as the application was not disposed of within the statutory period, it filed revision against the deemed rejection before the government of india under rule 54 of the mineral concession rules. 1960. on 8-10-1963 the government of india passed orders directing the state government to consider and dispose of the application on merit by 1-1-1964. the state government in the erstwhile mining and geology department notification no. 5838 dated 20-7-1965 threw open an area of 438.50 acres in kalaparbat area of keonjhar district for re-grant under section 59(1) of the mineral concession rules, 1960 on and from 10-9-1965. pursuant to the said notification, six applicants including the petitioner and one dr. sarojini pradhan (who is since dead and whose l.rs. are opposite parties 9 and 10) submitted their applications for grant of mining lease in respect of iron and manganese on 10-9-1965. none of the applications having been disposed of by the state government within the time prescribed, they were deemed to have been rejected. being aggrieved by such 'deemed rejection', the petitioner as well as dr. sarojini pradhan filed revisions before the government of india. by order dated 7-4-1967, the revisions were allowed and the state government was directed to consider the applications. alleging that no action was taken by the state government, the petitioner filed revision before the government of india on 22-7-1967 which came to be rejected on 13-10-1967 on the ground that it was premature and not against the deemed rejection. the petitioner thereafter filed writ petition bearing o.j.c. no. 855 of 1969 in this court for issue of writ of mandamus directing the state government to grant it mining lease. in that case, dr. sarojini pradhan was an intervenor. a bench of this court by judgment dated 21-6-1971 dismissed the writ petition holding, inter alia, that in the meantime the area in question had been thrown open and it had already applied for grant of mining lease which was pending consideration before the state government. pursuant to the remand order of the government of india dated 7-4-1967 referred to above, the state government passed an order on 3-9-1971 recommending the grant of lease in favour of dr. sarojini pradhan and sought for the approval of the government of india as required under section 5(1) of the mines & minerals (regulation & development) act, 1957 (hereinafter referred to as 'the act'). the government of india by its order dated 18-2-1972 however refused to accord its approval. the state government informed the government of india by letter dated 25-4-1972 that in its previous communications it had informed the government of india that it was inclined to grant mining lease in favour of dr. sarojini pradhan. on 29-12-1972 the government of india under the misconception that its earlier decision dated 18-2-1972 had not been complied with by the state government directed it to reject the application of dr. sarojini pradhan. by order dated 8-6-1973 the state government rejected the application of all the six applicants. consequently, revisions were filed before the government of india by all the applicants. government of india in its revisional order dated 2-5-1973 rejected the revision application of dr. sarojini pradhan but revision application of the petitioner was allowed with a direction to the state government to pass fresh order on merit. against this order dated 2-5-1978 of the government of india by which it rejected the revision application of dr. sarojini pradhan, she filed a writ petition bearing o.j.c. no. 829 of 1978 in this court. a bench of this court by judgment dated 4-9-1987. air 1988 ori 96 allowed the writ petition. the operative part of the judgment reads as follows :--'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 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.'thereafter pursuant to the above direction of this court, the government of india passed a cryptic order dated 11-5-1990 conveying its approval to the grant of mining lease for iron ore and manganese ore over an area of 438.50 acres in favour of the legal heirs of late dr. sarojini pradhan (who in the meantime died on 10-9-1987). being felt aggrieved by the said order, the petitioner filed writ petition bearing o.j.c. no. 4316 of 1990. the aforesaid order being cryptic without any supporting reasons, a bench of this court took serious exception and observed that it was passed in utter disregard of the direction of this court earlier given in o.j.c. no. 829 of 1978. it accordingly by judgment and order dated 13-12-1996 allowed the writ petition by quashing the aforesaid order of the government of india and directed it to reconsider the matter and pass a fresh speaking order. pursuant to the aforesaid direction contained in the judgment and order dated 13-12-1996 in o. j.c. no. 4316 of 1990, the government of india has passed the present impugned order dated 8-4-1999 at annexure 3/1. for the reasons stated therein, it accepted and approved the recommendation of the state government and conveyed its approval to the grant of mining lease in favour of the legal heirs of late dr. sarojini pradhan over an area of 171.226 hectares in village kalaparbat.3. shri i. mohanty, learned counsel for the petitioner, has raised the following contentions in support of the writ petition :(i) there was violation of the principles of natural justice inasmuch as copy of the proposal sent by the state government recommending grant of mining lease in favour of the legal heirs of deceased dr. sarojini pradhan was not furnished to it; (ii) the preferential right available to the petitioner under section 11(1) of the act was not considered; and (iii) following the death of the original applicant dr. sarojini pradhan, her entire application abates. on the other hand. shri b. a. mohanty, learned senior counsel appearing for opposite parties 9 and 10 (legal representatives of late dr. sarojini pradhan) submitted that under section 5(1) of the act, accord of approval by the government of india to the grant of prospecting licence or mining lease is of administrative nature and, as such, applicability of natural justice is wholly foreign at that stage. he further submitted that this court being not an appellate authority over the grant of administrative approval by the government of india cannot consider the merits/demerits of the respective applicants. his further submission was that alternative remedy by way of revision is available to the petitioner under section 80 of the act read with rules 54 and 55 of the mineral concession rules. 1960 and the petitioner should be asked to pursue that remedy. learned additional government advocate for the state and the learned senior standing counsel for the government of india submitted that the impugned order has been passed keeping in view the directives of this court in o.j.c. no. 829 of 1978 and o.j.c. no. 4316 of 1990 and, as such, it does not call for interference by this court.4. before considering the rival contentions of the parties, we may note that shri i. mohanty, learned counsel, earlier made grievance that despite petitioner's repeated requests for copy of the impugned order of approval passed by the government of india, it was not given to it. the question whether the government of india is obliged to give a copy of the impugned order to the contesting parties need not be decided by us in this proceeding inasmuch as on 8-2-2001 shri m. a. mohanty, learned senior counsel appearing for opposite parties 9 and 10, produced before us a copy of the said order. he also handed over a copy of the same to shri i. mohanty whereupon the petitioner applied for amendment of the writ petition by enclosing it as an annexure which prayer was allowed. moreover, as it appears from the counter affidavit of the state government, a copy of the order of the government of india dated 8-4-1999 was made available to the petitioner by the state government in the department of steel and mines letter no. 7806 dated 20-8-1999 (annexure a/2).5. there is no dispute that the state being the owner of mines and minerals, it is within its competence to grant prospecting licence/mining lease to any applicant in respect of such property in accordance with the provisions of the act and the rules made thereunder. however, proviso to sub-section |1) of section 5 puts an embargo which lays down that in respect of any mineral specified in the first schedule of the act. no prospecting licence or mining lease shall be granted except with the previous approval of the central government. it is an admitted fact that iron ore and manganese ore are specified minerals in the first schedule and, as such, approval of the central government is necessary before the state government grants prospecting licence/mining lease.6. it was contended by shri b. a. mohanty that accord of approval/non-ac-cord of approval by the government of india to the grant of prospecting licence or mining lease as envisaged under the proviso to section 5(1) of the act is of administrative nature and at that stage the applicants are not entitled to be heard. according to him, there is no provision in the act or in the rules that affected party is entitled to be heard nor is there any scope of the applicability of the principles of natural justice, of course he has not cited any decision in support of this contention. we may, however, refer to a judgment of the andhra pradesh high court in k. raghunadha reddy v. government of india. (1982) 2 andh wr 162. although it was a case of grant of approval by the central government under sub-section (4) of section 11 of the act, the observations made in the judgment have direct bearing on the contention of shri b, a. mohanty. b. p. jeevan reddy, j. (as he then was) in paragraph 4 of the jugment held as follows :'.....in other words where thegeneral rules contained in sub-section (2) of section 11 of the act is to be departed from, the state government can do so subject to the aforesaid two conditions. the two requirements viz., recording of reasons and obtaining prior approval of the central government, are the two checks upon the power given to the state government under subsection (4) of section 11 of the act. the grant of prior approval by the central government is an administrative check. at that stage the parties affected are not entitled to be heard. there is no provision in the act or in the rules which says that an affected party is entitled to hearing at the stage; nor am i satisfied that principles of natural justice call for such a hearing. having regard to the nature of function which the central government performs at this stage, there is no question of a hearing being given to any applicant. it has to accord its approval or refuse the same, as the case may be, on the basis of materials placed before it by the state government. in fact the prior approval of the central government cannot be called an order or decision.....'so far as this case is concerned, we need not examine this contention of shri b. a. mohanty in view of the judgment of this court dated 4-9-1987 in o.j.c. no. 629 of 1978 (reported in air 1988 orissa 96) in which the writ petitioner was none other than dr. sarojini pradhan. the present case, as already noted. is an off-shoot of that judgment. in that case the grievance of dr. sarojini pradhan was that before refusing to accord approval under the proviso to subsection (1) of section 5, no opportunity of hearing having been given to her by the government of india, the order was vitiated being violative of the principles of naturaljus-tice. this court for the reasons stated in paragraph 7 of the judgment came to hold that the government of india is obliged to follow the principles of natural justice at the time of accord of its approval to the grant of prospecting licence or mining lease. she herself invited that judgment and, as such, she and/or her legal representative is bound by it. we accordingly hold that in view of the judgment of this court in o.j.c. no. 829 of 1978, and the subsequent judgment in o.j.c. no. 4316 of 1990, government of india, before passing the impugned order rightly heard all the concerned parties.7. the principal prayer of the petitioner in this writ petition is to quash the impugned order of the government of india dated 8-4-1999 at annexure 3/1. a bare perusal of it would show that it runs to 13 pages. it is a speaking one and the decision is supported by reasons. it is now well settled that judicial review under article 226 of the constitution cannot be converted to appeal judicial review is directed not against the decision but it is confined to the examination of the decision-making process. when the issue is raised in judicial review that there was violation of principle of natural justice. it is a matter which requires examination as it is a part of the decision-making process.8. on the point of denial of natural justice because of non-supply of the copy of the proposal sent by the state government recommending grant of mining lease in favour of the legal representatives of the deceased dr. sarojini pradhan, it may be stated that there is no dispute at the bar that it was not furnished to the petitioner. grievance of the petitioner is that the recommendation being adverse to it, the same should have been made available so that it could have answered/explained its position vis-avis its opposing applicants.from paragraph 7 of the counter affidavit of the state government, we find that the joint secretary. mines of the government of india heard the matter on 18-3-1999 in presence of the concerned parties. shri b. a. mohanty submitted that the merits and demerits of the parties were discussed across the table at the time of hearing and. as such, there is no need nor does the law require that the copy of the proposal should be made available to the petitioner. on careful consideration of the submission of the counsel for parties, we are of the opinionthat since the recommendation was made for grant of mining lease in favour of the legal representatives of the deceased dr. sarojlnl pradhan, it was a report adversely affecting the petitioner. 9. what is a fair hearingwade in his administrative law (7th edition) writes as follows :'the right to know the opposing case. a proper hearing must always include a fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view. lord denning has added : if the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. he must know what evidence has been given and what statements have been made affecting him, and then he must be given a fair opportunity to correct or contradict them. xxxxx disclosure of the charge or of the opposing case must be made in reasonable time to allow the person affected to prepare his defence or his comments. he must have fair notice of any accusation against him, and this is commonly included in the right to a fair hearing by calling it the right to notice and hearing. at an inquiry, for example, any person who might be affected by adverse findings should be given fair warning so that he can defend himself against them at the hearing. but notice may not be indispensable as to matters where no fact is.in dispute and there is no prejudice to the party charged. as several of the above mentioned cases show, natural justice often requires the disclosure of reports and evidence in the possession of the deciding authority. a licensing authority must disclose any objections lodged with it so that the applicant may reply to them. a prisoner whose release on parole is revoked is entitional to be notified of adverse facts to be put before the parole board. .....' in this connection we may refer to another judgment of the supreme court in sahi ram v. avtar singh, air 1989 sc 2169. in that case the state of haryana terminated the mining lease granted to the lessee. against the said termination, the lessee filed revision before the central government which was dismissed. thereafter, he filed writ petition questioning the validity of the revisional order. their lordships of the sypreme court found that the lease was terminated basing on certain documents relating to the inspection reports which were not supplied to the lessee and the central government also did not bring those documents to his notice. in the circumstances, as the lessee was not given notice of the reports against him. their lordships held that there was violation of principles of natural justice. accordingly, the matter was remitted to the central government with the direction that it would issue fresh notice to the lessee setting out the facts considered by the state government for ordering termination and materials considered by the central government for approving termination.10. now coming to the case at hand, we are inclined to hold that as the adverse report against the petitioner was not disclosed to it, it was denied an opportunity to contradict the contents reported against it. in the circumstances, it cannot be held that there was a fair hearing. there is thus breach of the principles of natural justice. consequently the final order at annexure-3/1 has become vulnerable. the matter, therefore, needs fresh hearing.11. the effect of death of the original applicant for mining lease on his/her pending application was considered by this court in misc. case no. 396 of 1988 (vide its order dated 12-8-1989 in o.j.c. no. 1431 of 1980) and the judgment dated 23-2-1993 in o.j.c. no. 1969 of 1982. incidentally both the cases relate to the aforesaid deceased dr. sarojinl pradhan. in the first matter (order dated 12-5-1989 in misc. case no. 396 of 1988 arising out of o.j.c. no. 1431 of 1980), it has been held that on the death of the original applicant, further proceedings in the matter of grant of mining lease shall continue in the name of the legal representatives. the reasons are found in paragraph-7 of the order which we may extract hereunder :'the learned counsel appearing for the opposite party (state of orlssa) next contended that the mineral concession rules, 1949 made specific provision in rule 13 sub-rules (3) & (4) (in case, of prospecting licence) and in rule 28 of sub-rule (3) (in case of mining lease) that in the event of death of an applicant before grant of prospecting licence or mining lease, as the casemay be, the application fee paid by the applicant shall be refunded to his legal representatives. the mineral concession rules. 1960 as tt originally stood there was a provision in rule 13 that the applicant (application) for prospecting licence shall abate on the death of the applicant for grant of a prospecting licence before the grant of the licence is passed. there was no parallel provision in the said rules to cover the case of the death of an applicant for grant of mining lease. the said rule was subsequently amended to the effect that in case of death of an applicant for grant of prespecting licence his application shall be deemed to have been made by his legal representatives. as there has been no similar provision in respect of an application for the grant of mining lease, it was contended that the application for grant of mining lease would abate if the applicant dies. this argument does not appear to be sound for two reasons namely : (1) here is a case where an order for grant of mining lease has been passed by the state government which, as discussed above. in our view amounts to granting of the lease, irrespective of the formal execution of the lease deed; (2) once it is held that an interest has been created in favour of the applicant of a mining lease by reason of an order passed by the state government in that behalf, it amounts to a property in his hands which would pass on to his legal representatives on his death by the ordinary law of inhheritance. absence of any provision in the mineral concession rules as to whether or not the proceeding for grant of mining lease would abate, the legal representatives of the deceased applicant shall not be divested of an interest which devolved on them by law of inheritance.' in the later case (judgment dated 23-2-1983 in o.j.c. no.1269 of 19s2), it has been held in paragraph-15 as follows : 'the learned counsel for the petitioner pleases reliance on the recent amendment of the rules of 1960 vide notification dated 1-4-1991, which deals with the consequence on the death of an applicant for mining lease. it provides that when an applicant for grant or renewal of mining lease dies before such application is allowed, the application shall be deemed to have been made by his legalrepresentatives. it further provides that if such applicant dies before the deed referred to sub-rule (1) of rule 31 is executed, the order shall be deemed to have been passed in the memo of the legal representatives of the deceased. according to the learned counsel for the petitioner, the subsequent amendment must be read to supply the omission in the existing rules as it is an amendment by way of clarification of an earlier ambiguity and must be used is an said in construing the earlier provision even though such amendment is not given retrospective effect. in support of the aforesaid contention reliance has been placed on a decision of the hon'ble supreme court reported in air 1977 sc 518 (thiru manickam and co. v. the state of tamil nadu). their lordships have expressed the view that if there is any ambiguity in the earlier legislation then subsequent legislation may fix the proper interpretation which is to be put upon the earlier. looking to the changes in the rule which which has occurred from 1949 till 1991 governing the situation at hand we are of the view that due to absence of any provision either in the rules of 1960 or in its amendment in 1970 and in the change effected in 1991 amendment, the legal representatives of the applicant after her death are entitled to step into the shoes of the deceased-applicant and to continue the application.' we respectfully company with the opinion rendered by the two benches of this court in the aforesaid cases. we accordingly hold that with the death of the original applicant, his/her application for prospecting licence or mining lease does not abate. this is also evident from rule 25-a(l) of the mineral concession rules, 1960 which provides as follows :'25-a. status of the party on the death of applicant for mining lease :-- (1) where an applicant for grant or renewal of mining lease dies before the order granting him a mining lease or its renewal is passed the application for the grant or renewal of a mining lease shall be deemed to have been made by his legal representatives.' the aforesaid being the legal position, the objection raised on behalf of the petitioner has no merit and in the impugned order the same has rightly been over-ruled. this be-ing a pure question of law. we hold that thisissue has become final arid shall not be reopened and the government of india shall not further deal with this issue now on remand.12. in the result, the impugned order of the government of india dated 8-4-1999 at annexure-3/1 is quashed. the matter is remitted to it for fresh disposal in accordance with the earlier directions issued by this court. before the matter is taken up for hearing, the government of india will furnish a copy of the proposal sent by the state government recommending grant of mining lease in favour of the legal representatives of deceased dr. sarojini pradhan to the petitioner who will appear before it on 18-7-2001 to receive the same. as it is a long pending dispute, it is necessary that time limit should be fixed for the disposal. we may state here that one applicant namely, m/s balasore mineral company was heard by the government of india before the impugned order was passed. since it has not challenged the order, fresh hearing will be confined to the petitioner and the legal representatives of deceased dr. sarojini pradhan. accordingly, we call upon the government of india to dispose of the matter afresh by a speaking order after notice to the legal representative of deceased dr. sarojini pradhan as early as possible preferably by the end of september. 2001 and after complying with other formalities.the writ petition is accordingly allowed. no costs.p. k. misra, j.13. i agree.
Judgment:

R. K. Patra, J.

1. In this writ petition, the petitioner seeks quashing of the order dated 8-4-1999 of the Government of India, Ministry of Steel and Mines (Department of Mines) communicated in its letter No. 2/9/ 94-M, IV at Annexure 3/1 by which it has accorded its approval under Section 5(1) of the Mines and Minerals (Regulation and Development) Act, 1957 to the grant of mining lease for iron ore and manganese ore over an area of 171.826 hectares in village Kalaparbat Hill range of Keonjhar district in favour of the legal heirs of late Dr. Sarojini Pradhan (opposite parties 9 and 10). Petitioner further claims that under Section 11(1) of the aforesaid Act it has got preferential right over its rival applicants in respect of the area in question and prays for issuance of direction to the opposite parties, particularly opposite party Nos. 1 and 2 to grant to it the mining lease.

2. The dispute centres around grant of mining lease which dates back to early 1960s. It has not yet ended up, thanks to the litigious battles being fought by the concerned parties at every stage. It would be, therefore, profitable to trace its history and delineate facts as briefly as possible.

The petitioner which is a registered partnership firm applied to the State Government for grant of prospecting licence for iron and manganese ore over an area of 520 acres in Kalaparbat area of Keonjhar district on 27-10-1953. The State Government on 15-9-1961 passed orders granting prospecting licence to it in respect of a reduced area of 480 acres. After compliance of necessary formalities, prospecting licence was executed for one year from 17-10-1962 to 16-10-1963. In the meantime on 4-9-1961, the petitioner applied to the State Government for grant of mining lease for iron and manganese ore over 420 acres. As the application was not disposed of within the statutory period, it filed revision against the deemed rejection before the Government of India under Rule 54 of the Mineral Concession Rules. 1960. On 8-10-1963 the Government of India passed orders directing the State Government to consider and dispose of the application on merit by 1-1-1964. The State Government in the erstwhile Mining and Geology Department notification No. 5838 dated 20-7-1965 threw open an area of 438.50 acres in Kalaparbat area of Keonjhar district for re-grant under Section 59(1) of the Mineral Concession Rules, 1960 on and from 10-9-1965. Pursuant to the said notification, six applicants including the petitioner and one Dr. Sarojini Pradhan (who is since dead and whose L.Rs. are opposite parties 9 and 10) submitted their applications for grant of mining lease in respect of iron and manganese on 10-9-1965. None of the applications having been disposed of by the State Government within the time prescribed, they were deemed to have been rejected. Being aggrieved by such 'deemed rejection', the petitioner as well as Dr. Sarojini Pradhan filed revisions before the Government of India. By order dated 7-4-1967, the revisions were allowed and the State Government was directed to consider the applications. Alleging that no action was taken by the State Government, the petitioner filed revision before the Government of India on 22-7-1967 which came to be rejected on 13-10-1967 on the ground that it was premature and not against the deemed rejection. The petitioner thereafter filed writ petition bearing O.J.C. No. 855 of 1969 in this Court for issue of writ of mandamus directing the State Government to grant it mining lease. In that case, Dr. Sarojini Pradhan was an intervenor. A Bench of this Court by judgment dated 21-6-1971 dismissed the writ petition holding, inter alia, that in the meantime the area in question had been thrown open and it had already applied for grant of mining lease which was pending consideration before the State Government. Pursuant to the remand order of the Government of India dated 7-4-1967 referred to above, the State Government passed an order on 3-9-1971 recommending the grant of lease in favour of Dr. Sarojini Pradhan and sought for the approval of the Government of India as required under Section 5(1) of the Mines & Minerals (Regulation & Development) Act, 1957 (hereinafter referred to as 'the Act'). The Government of India by its order dated 18-2-1972 however refused to accord its approval. The State Government informed the Government of India by letter dated 25-4-1972 that in its previous communications it had informed the Government of India that it was inclined to grant mining lease in favour of Dr. Sarojini Pradhan. On 29-12-1972 the Government of India under the misconception that its earlier decision dated 18-2-1972 had not been complied with by the State Government directed it to reject the application of Dr. Sarojini Pradhan. By order dated 8-6-1973 the State Government rejected the application of all the six applicants. Consequently, revisions were filed before the Government of India by all the applicants. Government of India in its revisional order dated 2-5-1973 rejected the revision application of Dr. Sarojini Pradhan but revision application of the petitioner was allowed with a direction to the State Government to pass fresh order on merit. Against this order dated 2-5-1978 of the Government of India by which it rejected the revision application of Dr. Sarojini Pradhan, she filed a writ petition bearing O.J.C. No. 829 of 1978 in this Court. A Bench of this Court by Judgment dated 4-9-1987. AIR 1988 Ori 96 allowed the writ petition. The operative part of the judgment reads as follows :--

'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 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.'

Thereafter pursuant to the above direction of this Court, the Government of India passed a cryptic order dated 11-5-1990 conveying its approval to the grant of mining lease for iron ore and manganese ore over an area of 438.50 acres in favour of the legal heirs of late Dr. Sarojini Pradhan (who in the meantime died on 10-9-1987). Being felt aggrieved by the said order, the petitioner filed writ petition bearing O.J.C. No. 4316 of 1990. The aforesaid order being cryptic without any supporting reasons, a Bench of this Court took serious exception and observed that it was passed in utter disregard of the direction of this Court earlier given in O.J.C. No. 829 of 1978. It accordingly by Judgment and order dated 13-12-1996 allowed the writ petition by quashing the aforesaid order of the Government of India and directed it to reconsider the matter and pass a fresh speaking order. Pursuant to the aforesaid direction contained in the judgment and order dated 13-12-1996 in O. J.C. No. 4316 of 1990, the Government of India has passed the present impugned order dated 8-4-1999 at Annexure 3/1. For the reasons stated therein, it accepted and approved the recommendation of the State Government and conveyed its approval to the grant of mining lease in favour of the legal heirs of late Dr. Sarojini Pradhan over an area of 171.226 hectares in village Kalaparbat.

3. Shri I. Mohanty, learned counsel for the petitioner, has raised the following contentions in support of the writ petition :

(i) There was violation of the principles of natural justice Inasmuch as copy of the proposal sent by the State Government recommending grant of mining lease in favour of the legal heirs of deceased Dr. Sarojini Pradhan was not furnished to it;

(ii) The preferential right available to the petitioner under Section 11(1) of the Act was not considered; and

(iii) Following the death of the original applicant Dr. Sarojini Pradhan, her entire application abates.

On the other hand. Shri B. A. Mohanty, learned senior counsel appearing for opposite parties 9 and 10 (legal representatives of late Dr. Sarojini Pradhan) submitted that under Section 5(1) of the Act, accord of approval by the Government of India to the grant of prospecting licence or mining lease is of administrative nature and, as such, applicability of natural justice is wholly foreign at that stage. He further submitted that this Court being not an appellate authority over the grant of administrative approval by the Government of India cannot consider the merits/demerits of the respective applicants. His further submission was that alternative remedy by way of revision is available to the petitioner under Section 80 of the Act read with Rules 54 and 55 of the Mineral Concession Rules. 1960 and the petitioner should be asked to pursue that remedy. Learned Additional Government Advocate for the State and the learned Senior Standing Counsel for the Government of India submitted that the impugned order has been passed keeping in view the directives of this Court in O.J.C. No. 829 of 1978 and O.J.C. No. 4316 of 1990 and, as such, it does not call for interference by this Court.

4. Before considering the rival contentions of the parties, we may note that Shri I. Mohanty, learned counsel, earlier made grievance that despite petitioner's repeated requests for copy of the impugned order of approval passed by the Government of India, it was not given to it. The question whether the Government of India is obliged to give a copy of the impugned order to the contesting parties need not be decided by us in this proceeding inasmuch as on 8-2-2001 Shri M. A. Mohanty, learned Senior counsel appearing for opposite parties 9 and 10, produced before us a copy of the said order. He also handed over a copy of the same to Shri I. Mohanty whereupon the petitioner applied for amendment of the writ petition by enclosing it as an annexure which prayer was allowed. Moreover, as it appears from the counter affidavit of the State Government, a copy of the order of the Government of India dated 8-4-1999 was made available to the petitioner by the State Government in the Department of Steel and Mines letter No. 7806 dated 20-8-1999 (Annexure A/2).

5. There is no dispute that the State being the owner of mines and minerals, it is within its competence to grant prospecting licence/mining lease to any applicant in respect of such property in accordance with the provisions of the Act and the Rules made thereunder. However, proviso to Sub-section |1) of Section 5 puts an embargo which lays down that in respect of any mineral specified in the First Schedule of the Act. no prospecting licence or mining lease shall be granted except with the previous approval of the Central Government. It is an admitted fact that iron ore and manganese ore are specified minerals in the First Schedule and, as such, approval of the Central Government is necessary before the State Government grants prospecting licence/mining lease.

6. It was contended by Shri B. A. Mohanty that accord of approval/non-ac-cord of approval by the Government of India to the grant of prospecting licence or mining lease as envisaged under the proviso to Section 5(1) of the Act is of administrative nature and at that stage the applicants are not entitled to be heard. According to him, there is no provision in the Act or in the Rules that affected party is entitled to be heard nor is there any scope of the applicability of the principles of natural justice, Of course he has not cited any decision in support of this contention. We may, however, refer to a Judgment of the Andhra Pradesh High Court in K. Raghunadha Reddy v. Government of India. (1982) 2 Andh WR 162. Although it was a case of grant of approval by the Central Government under Sub-section (4) of Section 11 of the Act, the observations made in the Judgment have direct bearing on the contention of Shri B, A. Mohanty. B. P. Jeevan Reddy, J. (as he then was) in paragraph 4 of the Jugment held as follows :

'.....In other words where thegeneral rules contained in Sub-section (2) of Section 11 of the Act is to be departed from, the State Government can do so subject to the aforesaid two conditions. The two requirements viz., recording of reasons and obtaining prior approval of the Central Government, are the two checks upon the power given to the State Government under Subsection (4) of Section 11 of the Act. The grant of prior approval by the Central Government is an administrative check. At that stage the parties affected are not entitled to be heard. There is no provision in the Act or in the Rules which says that an affected party is entitled to hearing at the stage; nor am I satisfied that principles of natural justice call for such a hearing. Having regard to the nature of function which the Central Government performs at this stage, there is no question of a hearing being given to any applicant. It has to accord its approval or refuse the same, as the case may be, on the basis of materials placed before it by the State Government. In fact the prior approval of the Central Government cannot be called an order or decision.....'

So far as this case is concerned, we need not examine this contention of Shri B. A. Mohanty in view of the judgment of this Court dated 4-9-1987 in O.J.C. No. 629 of 1978 (reported in AIR 1988 Orissa 96) in which the writ petitioner was none other than Dr. Sarojini Pradhan. The present case, as already noted. Is an off-shoot of that judgment. In that case the grievance of Dr. Sarojini Pradhan was that before refusing to accord approval under the proviso to Subsection (1) of Section 5, no opportunity of hearing having been given to her by the Government of India, the order was vitiated being violative of the principles of naturaljus-tice. This Court for the reasons stated in Paragraph 7 of the judgment came to hold that the Government of India is obliged to follow the principles of natural Justice at the time of accord of its approval to the grant of prospecting licence or mining lease. She herself invited that Judgment and, as such, she and/or her legal representative is bound by it. We accordingly hold that in view of the Judgment of this Court in O.J.C. No. 829 of 1978, and the subsequent Judgment in O.J.C. No. 4316 of 1990, Government of India, before passing the impugned order rightly heard all the concerned parties.

7. The principal prayer of the petitioner in this writ petition is to quash the impugned order of the Government of India dated 8-4-1999 at Annexure 3/1. A bare perusal of it would show that it runs to 13 pages. It is a speaking one and the decision is supported by reasons. It is now well settled that judicial review under Article 226 of the Constitution cannot be converted to appeal Judicial review is directed not against the decision but it is confined to the examination of the decision-making process. When the issue is raised in judicial review that there was violation of principle of natural justice. It is a matter which requires examination as it is a part of the decision-making process.

8. On the point of denial of natural justice because of non-supply of the copy of the proposal sent by the State Government recommending grant of mining lease in favour of the legal representatives of the deceased Dr. Sarojini Pradhan, it may be stated that there is no dispute at the Bar that it was not furnished to the petitioner. Grievance of the petitioner is that the recommendation being adverse to it, the same should have been made available so that it could have answered/explained its position vis-avis its opposing applicants.

From Paragraph 7 of the counter affidavit of the State Government, we find that the Joint Secretary. Mines of the Government of India heard the matter on 18-3-1999 in presence of the concerned parties. Shri B. A. Mohanty submitted that the merits and demerits of the parties were discussed across the table at the time of hearing and. as such, there is no need nor does the law require that the copy of the proposal should be made available to the petitioner. On careful consideration of the submission of the counsel for parties, we are of the opinionthat since the recommendation was made for grant of mining lease in favour of the legal representatives of the deceased Dr. Sarojlnl Pradhan, it was a report adversely affecting the petitioner.

9. What is a fair hearing

Wade in his Administrative Law (7th edition) writes as follows :

'The right to know the opposing case.

A proper hearing must always Include a fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view. Lord Denning has added :

If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him, and then he must be given a fair opportunity to correct or contradict them.

xxxxx

Disclosure of the charge or of the opposing case must be made in reasonable time to allow the person affected to prepare his defence or his comments. He must have fair notice of any accusation against him, and this is commonly included in the right to a fair hearing by calling it the right to notice and hearing. At an inquiry, for example, any person who might be affected by adverse findings should be given fair warning so that he can defend himself against them at the hearing. But notice may not be indispensable as to matters where no fact is.in dispute and there is no prejudice to the party charged.

As several of the above mentioned cases show, natural justice often requires the disclosure of reports and evidence in the possession of the deciding authority. A licensing authority must disclose any objections lodged with it so that the applicant may reply to them. A prisoner whose release on parole is revoked is entitional to be notified of adverse facts to be put before the parole board. .....'

In this connection we may refer to another judgment of the Supreme Court in Sahi Ram v. Avtar Singh, AIR 1989 SC 2169. In that case the State of Haryana terminated the mining lease granted to the lessee. Against the said termination, the lessee filed revision before the Central Government which was dismissed. Thereafter, he filed writ petition questioning the validity of the revisional order. Their Lordships of the Sypreme Court found that the lease was terminated basing on certain documents relating to the inspection reports which were not supplied to the lessee and the Central Government also did not bring those documents to his notice. In the circumstances, as the lessee was not given notice of the reports against him. their Lordships held that there was violation of principles of natural Justice. Accordingly, the matter was remitted to the Central Government with the direction that it would Issue fresh notice to the lessee setting out the facts considered by the State Government for ordering termination and materials considered by the Central Government for approving termination.

10. Now coming to the case at hand, we are Inclined to hold that as the adverse report against the petitioner was not disclosed to it, it was denied an opportunity to contradict the contents reported against it. In the circumstances, it cannot be held that there was a fair hearing. There is thus breach of the principles of natural justice. Consequently the final order at Annexure-3/1 has become vulnerable. The matter, therefore, needs fresh hearing.

11. The effect of death of the original applicant for mining lease on his/her pending application was considered by this Court in Misc. Case No. 396 of 1988 (vide its order dated 12-8-1989 in O.J.C. No. 1431 of 1980) and the judgment dated 23-2-1993 in O.J.C. No. 1969 of 1982. Incidentally both the cases relate to the aforesaid deceased Dr. Sarojinl Pradhan. In the first matter (order dated 12-5-1989 in Misc. Case No. 396 of 1988 arising out of O.J.C. No. 1431 of 1980), it has been held that on the death of the original applicant, further proceedings in the matter of grant of mining lease shall continue in the name of the legal representatives. The reasons are found in paragraph-7 of the order which we may extract hereunder :

'The learned counsel appearing for the opposite party (State of Orlssa) next contended that the Mineral Concession Rules, 1949 made specific provision in Rule 13 Sub-rules (3) & (4) (in case, of prospecting licence) and in Rule 28 of Sub-rule (3) (in case of mining lease) that in the event of death of an applicant before grant of prospecting licence or mining lease, as the casemay be, the application fee paid by the applicant shall be refunded to his legal representatives. The Mineral Concession Rules. 1960 as tt originally stood there was a provision in Rule 13 that the applicant (application) for prospecting licence shall abate on the death of the applicant for grant of a prospecting licence before the grant of the licence is passed. There was no parallel provision in the said rules to cover the case of the death of an applicant for grant of mining lease. The said rule was subsequently amended to the effect that in case of death of an applicant for grant of prespecting licence his application shall be deemed to have been made by his legal representatives. As there has been no similar provision in respect of an application for the grant of mining lease, it was contended that the application for grant of mining lease would abate if the applicant dies. This argument does not appear to be sound for two reasons namely :

(1) Here is a case where an order for grant of mining lease has been passed by the State Government which, as discussed above. In our view amounts to granting of the lease, irrespective of the formal execution of the lease deed;

(2) Once it is held that an Interest has been created in favour of the applicant of a mining lease by reason of an order passed by the State Government in that behalf, it amounts to a property in his hands which would pass on to his legal representatives on his death by the ordinary law of inhheritance. Absence of any provision in the Mineral Concession Rules as to whether or not the proceeding for grant of mining lease would abate, the legal representatives of the deceased applicant shall not be divested of an interest which devolved on them by law of inheritance.' in the later case (judgment dated 23-2-1983 in O.J.C. No.1269 of 19S2), it has been held in paragraph-15 as follows :

'The learned counsel for the petitioner pleases reliance on the recent amendment of the Rules of 1960 vide notification dated 1-4-1991, which deals with the consequence on the death of an applicant for mining lease. It provides that when an applicant for grant or renewal of mining lease dies before such application is allowed, the application shall be deemed to have been made by his legalrepresentatives. It further provides that if such applicant dies before the deed referred to sub-rule (1) of Rule 31 is executed, the order shall be deemed to have been passed in the memo of the legal representatives of the deceased. According to the learned counsel for the petitioner, the subsequent amendment must be read to supply the omission in the existing rules as it is an amendment by way of clarification of an earlier ambiguity and must be used is an said in construing the earlier provision even though such amendment is not given retrospective effect. In support of the aforesaid contention reliance has been placed on a decision of the Hon'ble Supreme Court reported in AIR 1977 SC 518 (Thiru Manickam and Co. v. The State of Tamil Nadu). Their Lordships have expressed the view that if there is any ambiguity in the earlier legislation then subsequent legislation may fix the proper interpretation which is to be put upon the earlier. Looking to the changes in the rule which which has occurred from 1949 till 1991 governing the situation at hand we are of the view that due to absence of any provision either in the Rules of 1960 or in its amendment in 1970 and in the change effected in 1991 amendment, the legal representatives of the applicant after her death are entitled to step into the shoes of the deceased-applicant and to continue the application.'

We respectfully company with the opinion rendered by the two Benches of this Court in the aforesaid cases. We accordingly hold that with the death of the original applicant, his/her application for prospecting licence or mining lease does not abate. This is also evident from Rule 25-A(l) of the Mineral Concession Rules, 1960 which provides as follows :

'25-A. Status of the party on the death of applicant for mining lease :-- (1) Where an applicant for grant or renewal of mining lease dies before the order granting him a mining lease or its renewal is passed the application for the grant or renewal of a mining lease shall be deemed to have been made by his legal representatives.'

The aforesaid being the legal position, the objection raised on behalf of the petitioner has no merit and in the impugned order the same has rightly been over-ruled. This be-ing a pure question of law. we hold that thisissue has become final arid shall not be reopened and the Government of India shall not further deal with this issue now on remand.

12. In the result, the impugned order of the Government of India dated 8-4-1999 at Annexure-3/1 is quashed. The matter is remitted to it for fresh disposal in accordance with the earlier directions Issued by this Court. Before the matter is taken up for hearing, the Government of India will furnish a copy of the proposal sent by the State Government recommending grant of mining lease in favour of the legal representatives of deceased Dr. Sarojini Pradhan to the petitioner who will appear before it on 18-7-2001 to receive the same. As it is a long pending dispute, it is necessary that time limit should be fixed for the disposal. We may state here that one applicant namely, M/s Balasore Mineral Company was heard by the Government of India before the Impugned order was passed. Since it has not challenged the order, fresh hearing will be confined to the petitioner and the legal representatives of deceased Dr. Sarojini Pradhan. Accordingly, we call upon the Government of India to dispose of the matter afresh by a speaking order after notice to the legal representative of deceased Dr. Sarojini Pradhan as early as possible preferably by the end of September. 2001 and after complying with other formalities.

The writ petition is accordingly allowed. No costs.

P. K. Misra, J.

13. I agree.