Rashmi JaIn W/O Shri Adish JaIn D/O Sri Ramautar JaIn Vs. Adish Kumar JaIn S/O Late Shri Sheetal Prasad JaIn Through Manager, State Bank of India - 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. both these revisions, are directed against the judgment and order dated 30.07.2008, passed by judge, family court, haridwar in case no. 181 of 2004, whereby said court has partly allowed application under section 125 of code of criminal procedure, 1973 (for short cr.p.c.), directing adish kumar jain to pay rs. 5,000/- per month, as maintenance to his minor son ayush jain. the said court has dismissed the application under section 125 cr.p.c., for maintenance to rashmi jain (wife of adish kumar jain) and major son aman jain.2. heard learned counsel for the parties and perused the papers on record.3. brief facts of the case are that adish kumar jain got married to rashmi jain on 28.11.1983. two sons namely aman jain and ayush jain (minor) were born out of the wedlock. smt. rashmi jain and the two sons, moved application under section 125 cr.p.c., before the trial court, for maintenance at the rate of rs. 5,000/- per month, for herself, and rs. 5,000/- per month for her children. it is pleaded by rashmi jain that she was harassed by her husband for non fulfilment of demand of dowry, and forced to leave, with two minor sons, in the year 2002, from her husband's house. it is also pleaded that adish kumar jain (husband of rashmi jain) is an official in a bank, and his salary is rs. 20,000/- per month, apart from rs. 10,000/- per month, earnings from other sources. it is also pleaded that the applicants-rashmi jain and her two sons were unable to maintain themselves.4. adish kumar jain, contested the application, moved under section 125 cr.p.c., by his wife and sons, before the trial court. however, he admitted that he got married to rashmi jain on 28.11.1983, and the fact that the two sons namely, aman jain and ayush jain, were born out of the wedlock. it is pleaded by adish kumar jain that the application under section 125 cr.p.c., has been moved to harass him. he denied that he ever made any demand of dowry, or harassed his wife for non fulfilment of demand of dowry. it is pointed out by him, in his written statement, before the trial court, that criminal case no. 1687 of 1990, state v. adish kumar jain and ors. was instituted by his wife-rashmi jain, relating to offences punishable under section 498a i.p.c. and one punishable under section 3/4 dowry prohibition act, 1961. however, the court after recording evidence, found that no charge was proved against the accused adish kumar jain and others, and acquitted them of the charge. he further pointed out that rashmi jain is m.a., b.ed. and she is earning rs. 10,000/- per month by doing tuition etc. and is able to maintain herself. he also pleaded that elder son aman jain is major and doing his business, as such, not entitled to any maintenance. it is alleged in the written statement by adish kumar jain that his wife did not perform the matrimonial obligations, and her behaviour had been negligent towards him. it is pleaded by him that his carry home salary is rs. 13,606/- per month. lastly, it is pleaded by him that he is ready to keep his wife and children with him.5. after recording evidence and hearing the parties, the trial court found that rashmi jain is able to maintain herself. the trial court further found that she was not forced to leave her husband's house and living separately without sufficient reason. as to the entitlement of maintenance to elder son aman jain, it is found by the trial court that he has become major, as such, not entitled to maintenance from his father adish kumar jain. however, the trial court found that the youngest son ayush jain is minor and unable to maintain himself, and therefore, directed adish kumar jain to pay maintenance at the rate of rs. 5,000/- per month to him from the date of order.6. on behalf of smt. rashmi jain, it is argued that the trial court has erred in law in refusing to grant maintenance to her. i have gone through the record, and found that there is sufficient material on the record, which reflects that rashmi jain, has left her husband's house along with two sons and started living separately, without sufficient reason. it is pertinent to mention here that the marriage took place in the year 1983, and she left house in the year 2002. it is hard to believe that after a period of 10-15 years, husband demanded dowry and harassed his wife for non fulfilment of demand of dowry. it is already mentioned above that adish kumar jain, and his relatives were acquitted from the charge of offence punishable under section 498a i.p.c. therefore, this court does not find that the trial court has committed any error of law in refusing to grant maintenance to rashmi jain as in view of provision contained in sub-section (4) of section 125 cr.p.c., in the above circumstances, she was not entitled to the maintenance from her husband.7. admittedly, amit jain, elder son of adish kumar jain, is major. it is submitted on behalf of his mother (rashmi jain) that his business is not running well. whether his business is running well or not, after he, has become major, he is not entitled to maintenance under section 125 of cr.p.c. as such, finding of the trial court to that effect is also not liable to be interfered with.8. however, the trial court has committed error of law to the extent that the minor son ayush jain, has not been awarded maintenance from the date of application. the trial court has awarded maintenance to him from the date of order. since, the entitlement of maintenance to a minor is only up to age of attaining majority, if the courts instead of granting maintenance to such needy persons from the date of application, grant from the date of order, the litigants who are liable to pay, may get the proceedings lingered, thereby depriving the minor child of his major portion of maintenance. that being so, the impugned order needs to be modified to that extent.9. learned counsel for adish kumar jain, argued that ayush jain has not filed any revision, as such, this court cannot modify the order in his favour. provision contained in section 397 of cr.p.c., empowers the high court to examine the correctness, legality and propriety of the final orders (which are not appealable) passed by the courts subordinate to it, there is nothing which prohibits the court to modify the impugned order.10. for the reasons, as discussed above, both the revisions are dismissed with the modification in the impugned order that adish kumar jain shall pay maintenance to his minor son ayush jain at the rate of rs. 5,000/- per month, as directed by the trial court, from the date of application till he attains age of majority.