Mamchand, Vs. the State - 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]dharam veer, j.1. this criminal appeal, preferred under section 374(2) of the code of criminal procedure, 1973 (hereinafter to be referred as cr.p.c.), is directed against the judgment and order dated 18.4.1996 passed by the additional sessions judge, roorkee in sessions trial no. 174 of 1993, state v. mam chand and ors., whereby the learned additional sessions judge has convicted each of the appellants/accused under section 307/34 of the indian penal code, 1860 (hereinafter to be referred as i.p.c.) and sentenced each of them to five years' rigorous imprisonment with fine of rs. 500/- each and in case of default, six months' further r.i. was awarded.2. i have heard learned counsel for the parties and perused the entire material available on record.3. in brief, the prosecution case is that complainant (p.w.1) amar singh lodged an fir stating therein that on 4.3.1992 at about 4 pm, his son babu ram was coming at his house along with his earned money of rs. 4,000/- towards wages. as soon as he reached near the shop of appellant-accused mam chand, then the appellants-accused mam chand, mahendra, ladu and bhuta came out and surrounded him and the appellant-accused mam chand exhorted the other accused to kill babu ram, on which all of them started beating him. appellant-accused mam chand gave dagger to appellant-accused bhuta and exhorted to kill babu ram on which he (bhuta) gave blow of dagger in the stomach of babu ram. this incident was witnessed by darshan, vijendra and omi, who could manage to save complainant's son. in the fir, the reason assigned for the commission of the above said incident was that babu ram was stopping the appellants-accused to take pigs from the front of his house. with the same averments, the fir ex.ka-1 was lodged by p.w.1 amar singh on 5.3.1992 at 2:00 pm. on the basis of the fir (ex.ka-1), constable clerk ramesh chand prepared the chik fir of the case, i.e. ex.ka-3. he also made entry in g.d., copy of which is ex.ka-4. investigation of this case was entrusted to p.w.4 s.i. phool singh. injured babu ram was medically been examined on 4.3.1992 at 5:50 pm by cw1 dr. o.p. sharma, who prepared the injury report ex.ka-8. thereafter, the supplementary report of injured was also prepared by the same medical officer, i.e. ex.ka-7. the i.o. took in his possession the bloodstained clothes of injured and prepared fard, i.e. ex.ka-2. during the course of investigation the i.o. inspected the place of occurrence and prepared the site plan, i.e. ex.ka-5. the i.o. during investigation recorded the statements of witnesses and after completing the investigation, submitted the charge sheet against the appellants/accused in the court, i.e. ex.ka-6.4. after receiving the charge sheet, learned j.m., roorkee committed the case to the court of sessions on 15.04.1993 after giving necessary copies to the appellants/accused as provided under section 207 cr.p.c. the case was first transferred to assistant sessions judge and then to additional sessions judge by the sessions judge for disposal as per law.5. learned second assistant sessions judge, roorkee has framed the charge against the appellant/ accused bhuta under section 307 ipc and against rest of the appellants-accused mam chand, mahendra and ladu under section 307/34 ipc. the charge was read over and explained to appellants/accused, who pleaded not guilty and claimed to be tried.6. to prove its case, the prosecution has examined p.w.1 amar singh, complainant, p.w.2 babu ram, injured witness, p.w.3 darshan, eyewitness, p.w.4 s.i. phool singh, i.o. of the case and p.w.5 dr. k.p. sarabhai, who proved the medical reports.7. after that the statements of the appellants/ accused were recorded under section 313 cr.p.c. the oral and documentary evidence was put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated. they did not produce any documentary evidence but in oral evidence, they have examined d.w.1 surender and d.w.2 muni ram.8. after that dr. o.p. sharma was also examined by the court being a witness as cw1, who had medically examined the injured.9. thereafter, again the statements of accused/appellants were recorded under section 313 cr.p.c. in the question form on the basis of statement of cw1 dr. o.p. sharma.10. after hearing learned counsel for the parties and appreciating the entire material available on record, the learned additional sessions judge, roorkee vide judgment and order dated 18.4.1996 convicted and sentenced the appellants/accused as above discussed. feeling aggrieved, the accused/appellants have preferred the present appeal.11. before further discussion, it is pertinent to mention the injury report of injured babu ram who was medically been examined on 4.3.1992 at 5:50 pm. the following injuries were recorded in the injury report ex.ka-8:injury- incised wound 3.5 cm x 1.00 cm x abdominal cavity deep on right side abdomen 5.00 cm above right iliac crest, intestines-mesentery portending out, pro fused bleeding present, margins clear cut.general condition-very low, patient in state of shock.opinion-injury kept under observation, patient hospitalize, injury caused by sharp object, fresh.thereafter, the supplementary report of injured was also prepared i.e. ex.ka-7, which is as follows:exploratory laprotomy done under g.a. on exploration wound was abdominal cavity deep, mesenterity and small intestine was cut and 1000 cc of blood present in abdominal cavity, intestine and mesentery repaired and abdomen closed around drainage. two units blood given during operation.hence, injury is dangerous to life.12. to prove the above injury reports, the prosecution has examined cw1 dr. o.p. sharma who has proved the injury report ex.ka-8 and supplementary report ex.ka-7 prepared by him. he also stated that the above injury could be caused on 4.3.1992 at 4 pm and further that the injury could have been caused by some sharp edged weapon.13. the prosecution has also examined p.w.5 dr. k.p. sarabhai who has stated that the injury report and supplementary report was prepared by cw1 dr. o.p. sharma, which are ex.ka-8 and ka-7 respectively.14. to further prove its case, the prosecution has examined p.w.1 amar singh who has reiterated the version as stated in the fir and further stated that darshan and omi had narrated the incident to him on the basis of which he lodged the report, i.e. ex.ka-1. he also stated that when he reached hospital, his son babu ram was unconscious.15. p.w.2 babu ram, who is the injured witness, has stated that on the date of incident, he was returning while taking rs. 4,000/- earned as a labourer and as soon as he reached in front of the meat shop, the appellants-accused mam chand, bhuta, mahendra and ladu surrounded him. the appellants-accused ladu and mahendra caught hold of him and the appellant-accused mam chand gave dagger to bhuta and exhorted him to kill him (this witness). on this, the appellant-accused bhuta gave blow of dagger in his stomach with the intention to kill him due to which he fell down and became unconscious. he was admitted into the hospital by darshan, omi and vijendra. his father had lodged the report of this incident in the police station. this witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. the statement of this witness is reliable and believable.16. p.w.3 darshan also fully corroborated the version of p.w.2 babu ram. he also stated that he had narrated the incident to amar singh on the basis of which the fir was lodged by amar singh.17. p.w.4 s.i. phool singh who stated that investigation of this case was entrusted to him. chik fir of this case was prepared by c/c ramesh chand, i.e. ex.ka-3. entry was also made in the g.d. by him, i.e. ex.ka-4. he inspected the place of occurrence and prepared the site plan, i.e. ex.ka-5. he also took the bloodstained cloth of injured and prepared fard, which is on record. during investigation, he recorded the statements of witnesses and on completion of investigation, he filed the charge sheet, i.e. ex.ka-6.18. after that the statements of the appellants/ accused were recorded under section 313 cr.p.c. the oral and documentary evidence was put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated. they did not produce any documentary evidence but in oral evidence, they have examined d.w.1 surender and d.w.2 muni ram.19. dw1 surender stated that on the date of incident, babu ram (injured) and his associates were roaming in the market and were trying to outrage the modesty of women and they were drunk. he further stated that when babu ram and his associates ran to save themselves, they fell down but he does not know how babu ram received the injuries as so many people were there.20. d.w.2 muni ram also gave the evidence as that of d.w.1 surender. he further stated that he had seen the appellants-accused while running away from the place of occurrence.21. learned senior counsel for the appellants- accused argued that the prosecution has not proved its case against the appellants-accused beyond reasonable doubt as per the above said evidence. i do not find any force in this argument put forth on behalf of the appellants for the reason that p.w.2 babu ram, injured witness of the case, has stated that on the date of incident, he was returning while taking rs. 4,000/- earned being a labourer and as soon as he reached in front of the meat shop, the appellants-accused mam chand, bhuta, mahendra and ladu surrounded him. the appellants-accused ladu and mahendra caught hold of him and the appellant-accused mam chand gave dagger to bhuta and exhorted him to kill him. on this, the appellant-accused bhuta gave blow of dagger in his stomach with the intention to kill him due to which he fell down and became unconscious. after that his father lodged the report of this incident in the police station. the evidence of this witness is reliable and believable and inspires confidence and the same gets full corroboration from the oral testimony of pw3 darshan as well as that of p.w.1 amar singh, who lodged the report on the basis of information given to him by darshan (pw3) and omi and he also narrated the same facts in his statement. besides, the oral testimony, the medical version also fully corroborates the prosecution story. cw1 dr. o.p. sharma has specifically stated in his evidence that the injury on the person of injured could have been caused on 4.3.1992 at 4 pm and further that the injury could have been caused by sharp edged weapon. in the supplementary report of injured, the wound on the person of injured was found abdominal cavity deep, mesentery and small intestine was also found cut. it was also stated by the medical officer that intestine and mesentery of injured were repaired and abdomen closed around drainage. hence, it was opined that injury is dangerous to life.' from the above-said evidence, it is proved that the appellants-accused had caused injuries to babu ram on 4.3.1992 at 4 pm at village iqbalpur, p.s. jhabrera, district haridwar with the intention to kill him. therefore, it is also proved that the appellants-accused committed the above-said offence of causing injuries to babu ram with such intention and knowledge, and under such circumstances that, if they by that caused death, they would be guilty or murder and as such the offence punishable under section 307/34 ipc is clearly made out against the appellants-accused by the prosecution beyond reasonable doubt. the trial court has rightly convicted and sentenced the appellants-accused as above discussed and no ground of interference is called for.22. for the reasons as above discussed, the appeal lacks merit and is accordingly dismissed. judgment and order dated 18.4.1996 convicting and sentencing the appellants-accused as above discussed, stands affirmed. appellants are on bail. let they be taken into custody forthwith to serve the sentence as awarded against them. however, the period already served out in jail by them during investigation, trial or appeal shall be adjusted after verifying the records.23. copy of this order along with record of trial court be sent back for compliance forthwith.