Manjubala Pattnaik Vs. Gyanaranjan Behera - 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]s.k. mishra, j.1. heard learned counsel for the petitioner and learned counsel for opposite party. perused the records. the case is disposed of at the stage of admission keeping in view the limited nature of prayer made.2. the accused in 1 c.c. no. 222 of 2003 of the court of s.d.j.m., panposh, rourkela has assailed the order passed by the learned trial court on 17.11.2007 rejecting his prayer under section 311 of the criminal procedure code (hereinafter referred to as the 'code' for brevity). this is a case under section 138 of the negotiable instruments act, 1881 (hereinafter referred to as the 'act' for brevity). on 17.11.2007, the accused filed an application before the learned trial court to recall p.w.1 for further cross-examination, in view of the fact that, a disputed document has been enclosed in 1 c.c. no. 67 of 2003, which has been filed by the complainant himself and limited question are to be asked thereon. learned s.d.j.m., has rejected the petition mainly on two grounds, i.e. first, there is a delay in filing the petition to recall the witness, and the second ground is that the document is a xerox copy of the agreement which cannot be admitted into evidence.3. learned counsel for the petitioner submits that there was an agreement between the parties in which money was advanced on which interest was to be charged. such fact can be borne out from the said document filed in 1 c.c. no. 67 of 2003. on the prayer of the accused, the said case bearing 1 c.c. no. 67 of 2003 was called for but the lower court refused to recall p.w.1 for further cross-examination. therefore, he prays that the revision application should be allowed.4. learned counsel for opposite party, on the other hand, submits that the petition under section 311, cr.p.c. is without any merit as the accused-petitioner has not indicated the questions, he wants to put to the witness to recall for cross-examination. he also contends that the revision application is not maintainable in view of the bar in sub-section (2) of section 397 of the code.5. since the question of maintainability is raised in this case, it is apposite to decide such question first.6. section 397 of the code provides calling for records to exercise powers of revision. sub-section (2) of the said section provides that the powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding, ft is noted here that section 397 empowers the high court as well as court of session to call for the records to exercise power of revision. in addition to power of revision under section 397 of the code, the high court has inherent power under section 482 of the code. section 482 provides that nothing in this code shall be deemed to limit or affect the inherent powers of the high court to make such orders as may be necessary to give effect to any order under this code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.7. this provision came for consideration before a bench consisting three hon'ble judges of the supreme court in madhu limaye v. state of maharashtra : air 1978 sc 47. at page-51 in the continuing paragraph-10, their lordships' held that the bar provided in sub-section (2) of section 397 operates only in exercise of the revisional power of the high court, meaning thereby that the high court will have no power of revision in relation to any interlocutory order. then, the inherent power will come into play, there being no other provision in the code for the redressal of the grievance of the aggrieved party. if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the high court under the code of criminal procedure, 1898, the high court will refuse to exercise its inherent power. the apex court further held that in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice interference by the high court is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power by the high court. but such cases would be few and far between. the high court must exercise the inherent power very sparingly.8. in view of the aforesaid clear position of law, the high court has power to interfere with the impugned order not by resorting to section 397 but under section 482 of the code.9. in order to exercise the power under section 482 of the code, it is to be seen whether there has been abuse the process of the court or failure of justice in this case. the accused is facing trial for commission of offence under section 138 of the act, 1881, wherein defence available to the accused is a very limited in view of the presumption provided under section 139 of the act. section 243 of the code provides that tire accused has a right of advancing such evidence as deem proper by him to defend his case. such right is a valuable right. moreover, the provision of section 311 is a provision enabling, and in certain circumstances imposing, on the court, the duty of examining a material witness who would not be otherwise brought before it. section 311 of the code is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. it is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the parties. a duty is cast upon the court to arrive at the truth by all lawful means and no of such means is the examination of witnesses of its own or on behalf of any of the parties appearing before it. any application filed under section 311 of the code should also be examined at the stage in which the original case is posted before the trial court, along with section 243 of the code. thus, the reason recorded by learned trial court that there was delay in filing of recall petition is clearly erroneous.10. secondly, it is seen that if at all there is an agreement in which the parties has agreed that an interest will be charged, then the consequences thereof has to be considered in this case. once the accused is not allowed to ask questions to p.w.1, i.e. the complainant regarding that particular document, then that aspect of the case can not be brought to light and it will result in absolutely failure of justice. therefore, it is expedient in this case to allow the accused persons to put the questions to p.w.1 with respect to the document filed in 1.c.c. no. 67 of 2003. it is submitted that the document was filed by the complainant himself in that 1.c.c. no. 67 of 2003. even a xerox copy of a document can be taken into evidence as secondary evidence, if the conditions laid down under section 65 of the indian evidence act, 1872 are satisfied. it is to be kept in mind while considering the admissibility of the said document.11. keeping in view the aforesaid consideration, this court is of the opinion that the order passed by the learned trial court is unsustainable and requires interference. however, it should be in the interest of justice that the accused should clarify the questions he wants to put to said p.w.1, before he is asked to take the witness box. accordingly, it is directed that within thirty days hence, the accused shall make a fresh application before the learned s.d.j.m., panposh, rourkela, in 1.c.c. no. 222 of 2003 delineating all the questions he wants to put forth. on such event, the lower court shall allow the application and direct p.w.1 to remain present on a date fixed by the court. it is, however, made clear that on the date fixed accused shall cross-examine the witness, p.w.1. no further time shall be granted. the parties are directed to appear before the lower court on 19.02.2010.the crlrev is accordingly disposed of. interim order passed in misc. case no. 2159 of 2007 stands vacated.