Niranjan Sahoo Vs. State of Orissa - 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]orderb.k. nayak, j.1. this the second journey of the petitioner to this court seeking anticipatory bail under section 438, cr.p.c. in connection with nayagarh sadar p.s. case no. 32 of 2009 corresponding to g.r. case no. 393 of 2009 pending on the file of learned s.d.j.m., nayagarh for alleged commission of offences under sections 341/294/323/324/ 325/307/379/34 of the indian penal code.2. earlier the petitioner and anr. co-accused, namely, sanjaya sahoo filed application in this court for anticipatory bail in blapl no. 12849 of 2009 in connection with the very same nayagarh sadar p.s. case no. 32 of 2009. in the said bail application, the present petitioner figures as petitioner no. 1 upon hearing, a co-ordinate bench of this court passed order in that bail application on 28.08.2009 granting anticipatory bail to co-accused-sanjaya sahoo, but rejected the prayer for anticipatory bail of the present petitioner. the relevant portion of the said order in so far as it relates to the present petitioner is quoted hereunder:so far as petitioner no. 1 -niranjan sahoo is concerned, considering the gravity of the offence alleged to have been committed by him, i am not inclined to grant him anticipatory bail and reject the prayer.however, i grant liberty to petitioner no. 1 to surrender before the court below and move for regular bail, in which event the said court will dispose of the bail application of the petitioner on the same day it is filed. if thereafter the petitioner filed bail petition before the sessions court on being called for the records shall be transmitted to that court at the cost of the petitioner and the latter will do well to dispose of the bail petition expeditiously.3. in view of the rejection of the earlier anticipatory bail application of this petitioner, as above, the learned additional government advocate raised objection about the maintainability of this second anticipatory bail application. learned counsellor the petitioner, on the other hand, contended, relying upon the decision of this court in the case of bimal lochan das v. state of orissa (2007) 37 ocr 688 that the principle of res judicata is not applicable to bail application and, therefore, there is no bar for filing successive anticipatory bail applications.4. in the case of bimal lochan das (supra), this court allowed the second anticipatory bail application holding that the earlier bail application, the anticipatory bail had been granted only for two months and that in the meantime, there was a change of circumstance and, therefore, the second application was maintainable. repelling the contention of the state counsel in that case this court observed as follows:.the decision in the case of state of t.n. (supra) on which, mr. d.k. mohapatra, places reliance, was a case concerning repeated filing of bail applications under section 439 cr.p.c. without any change of circumstances. this court is of the considered view that the ratio of the said decision cannot be made applicable to a second petition filed under section 438 cr.p.c. as a matter of fact, in the said decision, even in the case of application under section 439 cr.p.c, the supreme court observed that the principle of res judicata are not applicable to bail applications but repeated filing of bail applications without any change of circumstance could lead to a bad precedent.from the fact of the present case, it is revealed that the petitioner approached this court previously in an application under section 438, cr.p.c. and, as stated earlier, this court favoured the petitioner with an order under the said section, but for a period of two months from the date of passing of the said order. there is a change circumstance as found from the records that now the vigilance has sought for sanction for lodging the prosecution. it can, therefore, be safely held that the investigating agency having sought for sanction to lodge the prosecution, the same definitely creates sufficient apprehension in the mind of the petitioner, of his arrest. more so, when the period for which the order of anticipatory bail was previously granted has passed long since. this court is therefore of the view that the present petition is maintainable.5. in the present case, there is neither any change of circumstance nor is it of the nature where the petitioner had been granted anticipatory bail for a brief period and there was a subsequent change of circumstance. on the other hand, it is a case whereupon consideration of the materials on record and hearing the submissions of the counsel for parties, this court consciously rejected the prayer for anticipatory bail of the petitioner and granted liberty to the petitioner to surrender before the court below and to move for regular bail with a direction to the court below to dispose of the same on the same day, and in the event the occasion arose to move the sessions court against rejection by the lower court, the said application was to be disposed of expeditiously. instead of complying with the subsequent direction of this court, the petitioner has filed this fresh anticipatory bail application, averments where of are verbatim reproduction of the averments made in the earlier bail application. there is nothing on record nor any argument has been advanced on behalf of the petitioner to show that there has been any substantial change of circumstances after rejection of the earlier anticipatory bail application, which would necessitate reconsideration of the prayer afresh.6. if appreciated in the perspective of the claim, i am of the view that the court should be too slow to thrive the second application of a party for anticipatory bail where the earlier one has been rejected on merits and there is no substantial change of circumstance or events. further repetition of prayer for anticipatory bail after rejection by a bench of coordinate jurisdiction after invoking the power of review of the decision of the earlier bench may lead to a judicial anarchy about which caution has been sounded by the apex court in the case of mahadolal kanodia v. administrator general air 1960 s.c. 936:judicial decorum no less than legal propriety forms the basis of judicial procedure' and 'if one thing is more necessary in law than any other thing it is the quality or certainty' and that 'that quality would totally disappear if judges of coordinate jurisdiction in the high court start overruling one another's decisions'. it was observed further that the result would be utter confusion if a 'judge sitting singly in the high court is of opinion that the previous decisions of another single judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger bench' as 'in such a case lawyers would not know how to advise their clients and all courts subordinate to the high court would find themselves in an embarrassing position of having to choose between dissentient judgment of their own high court'. for the foregoing reasons, it is held that this second application for anticipatory bail is not maintainable and accordingly it stands rejected.

Judgment:
ORDER

B.K. Nayak, J.

1. This the second journey of the petitioner to this Court seeking anticipatory bail under Section 438, Cr.P.C. in connection with Nayagarh Sadar P.S. Case No. 32 of 2009 corresponding to G.R. Case No. 393 of 2009 pending on the file of learned S.D.J.M., Nayagarh for alleged commission of offences under Sections 341/294/323/324/ 325/307/379/34 of the Indian Penal Code.

2. Earlier the petitioner and Anr. co-accused, namely, Sanjaya Sahoo filed application in this Court for anticipatory bail in BLAPL No. 12849 of 2009 in connection with the very same Nayagarh Sadar P.S. Case No. 32 of 2009. In the said bail application, the present petitioner figures as petitioner No. 1 Upon hearing, a co-ordinate Bench of this Court passed order in that bail application on 28.08.2009 granting anticipatory bail to co-accused-Sanjaya Sahoo, but rejected the prayer for anticipatory bail of the present petitioner. The relevant portion of the said order in so far as it relates to the present petitioner is quoted hereunder:

So far as petitioner No. 1 -Niranjan Sahoo is concerned, considering the gravity of the offence alleged to have been committed by him, I am not inclined to grant him anticipatory bail and reject the prayer.

However, I grant liberty to petitioner No. 1 to surrender before the court below and move for regular bail, in which event the said court will dispose of the bail application of the petitioner on the same day it is filed. If thereafter the petitioner filed bail petition before the Sessions court on being called for the records shall be transmitted to that court at the cost of the petitioner and the latter will do well to dispose of the bail petition expeditiously.

3. In view of the rejection of the earlier anticipatory bail application of this petitioner, as above, the learned Additional Government Advocate raised objection about the maintainability of this second anticipatory bail application. Learned Counsellor the petitioner, on the other hand, contended, relying upon the decision of this Court in the case of Bimal Lochan Das v. State of Orissa (2007) 37 OCR 688 that the principle of res judicata is not applicable to bail application and, therefore, there is no bar for filing successive anticipatory bail applications.

4. In the case of Bimal Lochan Das (supra), this court allowed the second anticipatory bail application holding that the earlier bail application, the anticipatory bail had been granted only for two months and that in the meantime, there was a change of circumstance and, therefore, the second application was maintainable. Repelling the contention of the State Counsel in that case this Court observed as follows:.The decision in the case of State of T.N. (supra) on which, Mr. D.K. Mohapatra, places reliance, was a case concerning repeated filing of bail applications under Section 439 Cr.P.C. without any change of circumstances. This Court is of the considered view that the ratio of the said decision cannot be made applicable to a second petition filed under Section 438 Cr.P.C. As a matter of fact, in the said decision, even in the case of application under Section 439 Cr.P.C, the Supreme Court observed that the principle of res judicata are not applicable to bail applications but repeated filing of bail applications without any change of circumstance could lead to a bad precedent.

From the fact of the present case, it is revealed that the petitioner approached this Court previously in an application under Section 438, Cr.P.C. and, as stated earlier, this Court favoured the petitioner with an order under the said Section, but for a period of two months from the date of passing of the said order. There is a change circumstance as found from the records that now the Vigilance has sought for sanction for lodging the prosecution. It can, therefore, be safely held that the Investigating Agency having sought for sanction to lodge the prosecution, the same definitely creates sufficient apprehension in the mind of the petitioner, of his arrest. More so, when the period for which the order of anticipatory bail was previously granted has passed long since. This Court is therefore of the view that the present petition is maintainable.

5. In the present case, there is neither any change of circumstance nor is it of the nature where the petitioner had been granted anticipatory bail for a brief period and there was a subsequent change of circumstance. On the other hand, it is a case whereupon consideration of the materials on record and hearing the submissions of the counsel for parties, this Court consciously rejected the prayer for anticipatory bail of the petitioner and granted liberty to the petitioner to surrender before the court below and to move for regular bail with a direction to the court below to dispose of the same on the same day, and in the event the occasion arose to move the sessions court against rejection by the lower court, the said application was to be disposed of expeditiously. Instead of complying with the subsequent direction of this Court, the petitioner has filed this fresh anticipatory bail application, averments where of are verbatim reproduction of the averments made in the earlier bail application. There is nothing on record nor any argument has been advanced on behalf of the petitioner to show that there has been any substantial change of circumstances after rejection of the earlier anticipatory bail application, which would necessitate reconsideration of the prayer afresh.

6. If appreciated in the perspective of the claim, I am of the view that the Court should be too slow to thrive the second application of a party for anticipatory bail where the earlier one has been rejected on merits and there is no substantial change of circumstance or events. Further repetition of prayer for anticipatory bail after rejection by a Bench of coordinate jurisdiction after invoking the power of review of the decision of the earlier Bench may lead to a judicial anarchy about which caution has been sounded by the apex Court in the case of Mahadolal Kanodia v. Administrator General AIR 1960 S.C. 936:

Judicial decorum no less than legal propriety forms the basis of judicial procedure' and 'if one thing is more necessary in law than any other thing it is the quality or certainty' and that 'that quality would totally disappear if judges of coordinate jurisdiction in the High Court start overruling one another's decisions'. It was observed further that the result would be utter confusion if a 'Judge sitting singly in the High Court is of opinion that the previous decisions of another single judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger bench' as 'in such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgment of their own High Court'. For the foregoing reasons, it is held that this second application for anticipatory bail is not maintainable and accordingly it stands rejected.