Vipul and ors. Vs. State of U.P. (Now State of Uttarakhand) - 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. these two appeals are directed against the same judgment and order dated 22.08.1996, passed by iii addl. sessions judge, nainital, in sessions trial no. 82 of 1991, sessions trial no. 82-a of 1991, sessions trial no. 77 of 1991, sessions trial no. 78 of 1991, sessions trial no. 79 of 1991, sessions trial no. 80 of 1991, and sessions trial no. 81 of 1991, whereby accused/appellants, namely vinay, nikhil, vipul, sadhu and mahesh have been convicted under section 399, 402 of indian penal code, 1860 (hereinafter referred as i.p.c.), and under section 25 of the arms act. each one of the convicts has been sentenced to rigorous imprisonment for a period of four years under section 399 of i.p.c., and directed to pay fine of rs. 500/-, rigorous imprisonment for a period of three years under section 402 of i.p.c., and directed to pay fine of rs. 200/-. each one of the convicts vinay and nikhil has been further sentenced to rigorous imprisonment for a period of one year under section 25 of arms act, and directed to pay fine of rs. 200/-. each one of the convicts vipul, sadhu and mahesh has been sentenced to rigorous imprisonment for a period of six months under section 4/25 of the arms act, and directed to pay fine of rs. 100/-.2. heard learned amicus curiae & learned counsel for the appellants and learned counsel for the state, and perused the lower court record.3. prosecution story, in brief, is that on 05.09.1989, p.w. 1 sub inspector jasram singh got a secret information that the dacoits of vinay bangali gang are going to commit dacoity in avas vikas colony, rudrapur (now part of district udham singh nagar). on this information, p.w. 1 jasram singh along with constables suraj pal, narain dutt and other police personnel, armed with necessary weapons, proceeded towards avas vikas colony. at about 00:3 0 hours (midnight), six persons were seen coming, who were talking among themselves that they were going to commit dacoity in that night. the police party challenged the miscreants and caught five of them. one succeeded in escaping from there. the arrested persons are accused/appellants vinay, nikhil, vipul, sadhu and mahesh. a search of their person was made in which country made pistols were found in possession of accused vinay and nikhil, and knives were found in the possession of accused vipul, sadhu and mahesh. the miscreants had no license to keep the unlicensed arms. necessary recovery memo was prepared by the police, and a first information report was registered at police station kichha, at about 04:30 a.m., on 06.09.1989. crime no. 613 of 1989 was registered against all the five appellants, in respect of offences punishable under section 399 and 402 of i.p.c. separate crime no. 614 of 1989 against accused vinay, crime no. 615 of 1989 against accused nikhil (both under section 25 of arms act); crime no. 616 of 1989 against accused sadhu, crime no. 617 of 1989 against accused vipul and crime no. 618 of 1989 against mahesh (all the three in respect of offence punishable under section 4/25 of arms act) were registered. the investigation was conducted by sub inspector ifthkhar hussain (p.w. 3), who, after investigation, submitted charge sheets against the accused/appellants.4. the magistrate, on receipt of the charge sheets, after giving necessary copies to the accused, as required under section 207 of cr.p.c., appears to have committed all the six cases to the court of sessions, for trial. learned asstt. sessions judge, nainital, on 04.06.1991, framed charge in respect of offences punishable under section 399 and 402 of i.p.c. against all the five accused, namely vinay, nikhil, vipul, sadhu and mahesh. they pleaded not guilty and claimed to be tried. separate charges were framed by the learned asstt. sessions judge in respect of offences punishable under section 25 of arms act and 4/25 of arms act against the five accused. in respect of other charges also, the accused pleaded not guilty, and claimed to be tried. on this, prosecution got examined p.w. 1 sub inspector jasram singh, p.w. 2 head constable ram singh, and p.w. 3 sub inspector ifthkhar hussain (investigating officer). the oral and documentary evidence was put to the accused under section 313 of cr.p.c., in reply to which they alleged the same to be false. however, no evidence in defence was adduced. after hearing the parties, the trial court found all the five accused guilty not only in respect of charge of offence punishable under section 399 and 402 of i.p.c., but also in respect of 25 arms act (as against accused vinay and nikhil), and that of one punishable under section 4/25 of arms act (as against accused vipul, mahesh and sadhu). they were heard on sentence, and each one of the convicts was sentenced by the trial court to rigorous imprisonment for a period of four years and directed to pay fine of rs. 500/- under section 399 of i.p.c.; rigorous imprisonment for a period of three years and directed to pay fine of rs. 200/-, in respect of offence punishable under section 402 of i.p.c.; rigorous imprisonment for a period of one year and fine of rs. 200/- (as against accused vinay and nikhil) under section 25 of arms act; and rigorous imprisonment for a period of six months and fine of rs. 100/- (as against accused vipul, sadhu and mahesh). the defaulter convicts were directed to undergo further three months simple imprisonment for default in payment of fine of rs. 500/-, simple imprisonment for a period of two months, in default of payment of fine of rs. 200/-, and simple imprisonment for a period of one month, in default of payment of fine of rs. 100/-.5. aggrieved by said judgment and order dated 22.08.1996, accused/appellants vinay and sadhu preferred criminal appeal no. 1752 of 1996 (new no. 1385 of 2001) before the allahabad high court on 23.09.1996. the other three accused/appellants preferred appeal from central jail, bareilly, which was registered as criminal appeal no. 950 of 1997 (new no. 1384 of 2001). both the appeals are transferred to this court under section 35 of the u.p. reorganization act, 2000, (central act no. 29 of 2000), for their disposal.6. learned amicus curiae and learned counsel for the appellants argued before this court that the prosecution story narrated by p.w. 1 sub inspector jasram singh is not supported by any public witness. it is further contended that what to say of the public witnesses, even the other police witnesses, namely dhoom singh, ram swaroop, rishipal singh and ram veer singh before whom recoveries are said to have been made from the appellants were not got examined before the trial court, on behalf of the prosecution. it is further argued that the trial court has committed error of law in recording conviction against the appellants in respect of offences punishable under section 399, 402 of i.p.c., and under section 25 and 4/25 of the arms act, on the sole testimony of p.w. 1 jasram singh.7. learned counsel for the state failed to explain the circumstances under which no one except p.w. 2 ram singh from the police party could be produced before the trial court to support the prosecution story narrated by p.w. 1 sub inspector jasram singh, particularly, when there was no public witness. in the facts and circumstances of the case, this court is of the view that the trial court has erred in law in believing that the charge against the appellants are proved against the accused beyond reasonable doubt.8. for the reasons as discussed above, both the appeals deserve to be allowed. accordingly, the same are allowed. the impugned judgment and order dated 22.08.1996, passed by iii addl. sessions judge, nainital, in s.t. no. 82 of 1991, s.t. no. 82-a of 1991, s.t. no. 77 of 1991, s.t. no. 78 of 1991, s.t. no. 79 of 1991, s.t. no. 80 of 1991 and s.t. no. 81 of 1991, is hereby set aside. all the accused/appellants, namely vinay, mahesh, nikhil, vipul and sadhu are hereby acquitted of the charge framed against them in respect of offences punishable under section 399, 402 of i.p.c., and one punishable under section 25 and 4/25 of the arms act. two of the accused/appellants vinay and sadhu are on bail. they need not to surrender. other accused/appellants, if in jail are directed to be set at liberty, if not required in connection with any other crime. lower court record be sent back.