Deep Singh S/O Shri Babu Ram Vs. Maqsood S/O Dishaudi, - Court Judgment

Excerpt:
- mining direction to state government to consider all applications afresh in light of interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules main issue : whether the state government's recommendation dated 06.12.2004 and the proceedings of the chief minister are contrary to the provisions of section 11 of the act and rules 59 and 60 of mc rules and not valid in law. a perusal of the proceedings of the chief minister shows that no clear reasons were given to show as to why jindal and kalyani were preferred over other applicants.[para 18]--the proceedings of the chief minister, at no level, consider the various guiding criteria mentioned in section 11(3)[para 19] b) whether the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- applications made prior to the notification cannot be entertained because they are premature.[para 21] if such premature applications are allowed to be entertained, it would result in the state government giving out mining leases to favoured persons without notice to the general public.[para 53] c) whether the order of the high court of karnataka in ziaulla sharieff's case permit the consideration of the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. the order of the high court of karnataka in ziaulla sharieff's case does not permit the consideration of jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) whether rule 35 of the mc rules justify the recommendation of the state government in favour of the respondents-jindal and kalyani -- as discussed above, rule 35 only permits the state government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) whether the criterion of "captive consumption" referred to in tata iron and steel co. ltd. vs. union of india, (1996) 9 scc 709, have any application in this case despite not being one of the factors referred to in section 11 (3) of the mmdr act or rule 35 of the mc rules -- we have already held that section 11(3) specifies the matter relevant for purposes of second proviso to section 11(2). we also referred to the committee's report. in accordance with the recommendation in the said report, section 11(3)(d) was added as part of the substitution of section 11 in the year 1999. sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". even the residuary clauses in section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. this is fortified by decision of this court in bsnl ltd. & anr. vs. bpl mobile cellular ltd. & ors., (2008) 13 scc 597, para 45.[para 35] f) whether factors such as the past commitments by the state government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the mmdr act and the mc rules constituting a complete code -- it is not open to the state government to justify grant based on criteria that are de hors to the mmdr act and the mc rules. the exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. it is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] in view of the specific parliamentary declaration as discussed and explained by this court in various decisions, there is no question of the state having any power to frame a policy de hors the mmdr act and the rules.[para 25] central and the state government act as mere delegates of parliament while exercising powers under the mmdr act and the mc rules.[para 27] g) whether the recommendation in favour of respondents-jindal and kalyani saved by the operation of the law of equity. the law of equity cannot save the recommendation in favour of jindal and kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. this principle was clearly stated by this court in the cases of kedar lal vs. hari lal sea, (1952) scr 179 at 186 and raja ram vs. aba maruti mali (1962) supp. 1 scr 739 at 745. it is clear that where the field is covered expressly by section 11 of the mmdr act, equitable considerations cannot be taken into account to assess jindal and kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) whether the learned single judge as well as the division bench are justified in arriving at such conclusion. though the learned single judge in his order dated 07.08.2008 quashed the communication/recommendation of the state government dated 06.12.2004 proposing to grant mining lease to jindal and kalyani, however, the learned single judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire notification no. ci.16:mmm.2003 dated 15.03.2003. in our view, while approving earlier part of his order and quashing the communication/recommendation of the state government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the act and the rules. the said observations/directions are deleted.[para 55] the division bench has erred in concluding that the jindal's application made prior to the notification can be entertained along with the applications made pursuant to the said notification because it is not section 11(4) which covers the said notification under rule 59(1) but the first proviso to section 11(2). as a matter of fact, the division bench did not even mention section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single judge hinged on how section 11(4) would be rendered otiose and redundant if the first proviso to section 11(2) was taken as governing the consideration of applications under a notification pursuant to rule 59(1) [para 52] i) whether it is advisable to remit it to the central government. [para 6] the central government considers only the materials forwarded by the state government along with its recommendation. as rightly pointed out, if the recommendation of the state government cannot be upheld in law, all consequential orders including the subsequent approval by the central government are also liable to be quashed. we reject the request for remitting the matter to the central government for its decision. --[para 56] held : in the light of the above discussion, the impugned order of the division bench of the high court dated 05.06.2009 in writ appeal no. 5084 of 2008 and allied matters as well as the decision of the state government dated 26/27.02.2002 and the subsequent decision of the central government dated 29.07.2003 are quashed. we direct the state government to consider all applications afresh in light of our interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules and make a recommendation to the central government within a period of four months from the date of receipt of the copy of this judgment. it is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the state government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. the state government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. all the appeals are allowed to the extent mentioned above. no costs.[para 57,58]prafulla c. pant, j.1. by means of this petition, moved under section 482 of code of criminal procedure, 1973, the petitioner has sought quashing of the proceedings of criminal case no. 338 of 1996 maqsood v. deep singh relating to offence punishable under section 138 of the negotiable instruments act 1881, police station gang nehar, roorkee, district haridwar, pending in the court of ist additional civil judge (jd)/judicial magistrate, roorkee. the petitioner has further challenged order dated 20th of january 2003, passed by iii fast track court/additional session judge, haridwar in criminal case no. 182 of 1998 whereby said court has refused to interfere with the summoning order dated 08.01.1997, and set aside the order dated 11.06.1998 by which magistrate had recalled his order summoning the accused in the aforesaid criminal case.2. heard learned counsel for the parties.3. brief facts of the case are that complainant/respondent no1 filed a criminal complaint case in january 1997, before the trial court relating to offence punishable under section 138 negotiable instruments act, 1881, against the petitioner alleging that on 27.02.1996, the petitioner issued cheque no. 044611 for an amount of rs. 40,000 and cheque no. 044613 for an amount of rs. 47250 (both amounting to rs. 87250/-) payable to the complainant in an account of petitioner in oriental bank of commerce. complainant pleaded before the trial court the said cheques when presented were bounced and the bank informed that due to the insufficiency of funds payment cannot be made. on which necessary notice was issued by the complainant and when the payment was not made, criminal complaint was filed. the magistrate initially vide order dated 08.01.1997, after recording statement of accused under section 200 of cr.p.c summoned the petitioner as an accused in the criminal complaint case. however, on objection of the accused / petitioner, he recalled the said order vide his subsequent order dated 11.06.1998. this made complainant mohd. qasim file criminal revision no. 182 of 1998. on said revision the revisional court set aside the order recalling the summoning order by the magistrate, and directed that criminal trial shall proceed in accordance with law. hence this petition.4. before this court learned counsel for the petitioner drew attention of this court to the provision contained in section 138 of negotiable instruments act, 1881, which requires that the money payable to the complainant must be towards some debt or other liability. it is contended on behalf of the petitioner that the sums which are said to have been shown payable through the cheques in question were neither towards satisfaction repayment of any debt nor any liability.5. i have gone through the copy of the complaint in question, which is filed as annexure - 3 to the petition. there are six paragraphs in said petition. there is not a single word in the entire complaint that the petitioner had any liability to pay money to the complainant. in para 1 merely this is mentioned that the accused is an illiterate and simple person. in para 2 what has been said is that the aforesaid two cheques were issued. in para 3 it is mentioned that the cheques on being presented through district cooperative bank, were dishonored. in para 4, it is stated that the notice was given to the petitioner and in para 5 it has been stated that no reply was given by the complainant on sending the notice. in para 6 simply this much is stated that the petitioner has committed offence punishable under section negotiable instruments act, 1881. as such this court finds no mention of any debt or liability on the part of the petitioner, in the criminal complaint.6. learned counsel for the petitioner submitted that infact the complainant had executed an agreement of sale, copy of which is annexure-1 to the petition, which provides that the petitioner shall be liable to pay the amount of consideration at the time of execution of sale deed of the land no. 456 of complainant situated in sheikhpuri measuring 17 biswa. it is further pleaded that neither the complainant ever executed sale deed nor delivered the possession of the land to the petitioner as such there was no liability on the part of petitioner to pay the sum. this fact is not denied by the complainant that he never executed the sale deed nor he has stated that he delivered possession of the land to the petitioner. as such it is clear that there was no liability on the part of the petitioner to make payment. i have already observed above that criminal complaint does not contain any allegation that the petitioner was liable to make any payment to the complainant. in the circumstances it cannot be said that the ingredients of the offence punishable under section 138 negotiable instruments act 1881, are made out from the criminal complaint (even if the same are taken to be true).7. therefore, for the reasons as discussed above the proceedings of criminal complaint case no. 338 of 1996, maqsood v. deep singh relating to offence punishable under section 138 of the negotiable instruments act 1881, police station, gang nehar, roorkee, district haridwar, pending in the court of i additional civil judge (jd)/ judicial magistrate, roorkee, are liable to be quashed. accordingly this petition is allowed and the proceedings of the aforesaid criminal case are here by quashed.