M/s Kalinga Mining Corporation Vs Union of India .

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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1013 OF 2013 [Arising out of SLP (C) NO.23141 OF 2007]

M/s. Kalinga Mining Corporation ...Appellant

VERSUS

Union of India & Ors. ...Respondents

AND

CIVIL APPEAL NO. 1014 OF 2013 [Arising out of SLP (C) NO.5130 OF 2009]

M/s. Kalinga Mining Corporation ...Appellant

VERSUS

Union of India & Ors. ...Respondents

J U D G M E N T

SURINDER SINGH NIJJAR,J.

1. Leave granted in both the Special Leave Petitions.

2. By this common judgment, we propose to dispose of

both the aforesaid appeals. The Appeal arising out of

Special Leave Petition (C) No. 23141 of 2007 has been

filed challenging the order dated 31st August, 2007

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rejecting the preliminary issue raised by the appellant

in OJC No.3662 of 2002. The Appeal arising out of

Special Leave Petition (C) No. 5130 of 2009 has

been filed challenging the final order dated 24th

November, 2008 in OJC No. 3662 of 2002 upholding

the order dated 27th September, 2001.

CIVIL APPEAL NO.1013 OF 2013 [Arising out of SLP (C) No. 23141 of 2007]

3. We may notice here briefly the facts as noticed by the

High Court.

4. On 27th October, 1953, the appellant M/s. Kalinga

Mining Corporation applied to the Government of

Orissa for a prospecting licence. This was granted by

the State Government on 15th September, 1961 in

respect of an area of 480 acres in Kalaparbat Hill

range of Keonjhar district subject to compliance of

lease stipulations. The appellant applied for the grant

of mining lease also for iron manganese ore over 420

acres in Kalaparbat Hill range of Keonjhar district. As

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the same was not considered by the State

Government, the appellant filed a revision before the

Central Government. The same was disposed of by the

Central Government on 23rd July, 1962 by

intimating the State Government that since the

prospecting licence was not granted in favour of the

appellant, the mining lease application could not be

considered. The direction was issued to the State

Government to consider the application of the

appellant for mining lease which was dated 4th

September, 1961 on merit by 1st

January, 1964. Since no decision was taken by the

State Government by stipulated date, the application

of the appellant dated 4th January, 1961 was deemed

to have been refused. By notification dated 20th July,

1965, the State Government of Orissa threw open an

area of 438.5 acres in Kalaparbat Hill Range area,

Keonjhar district for mining under Rule 58(1) of

Mineral Concession Rules, 1960 for mining in respect

of manganese and iron ore. On 10 th

September, 1965, six applicants including the

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appellant and respondent No.10 submitted their

applications for grant of mining lease in respect of the

aforesaid area. It appears that the mining lease

applications of the appellant as well as the respondent

No.10 were not disposed of by the State Government

within the statutory period, therefore, both of them

separately moved the Central Government in revision.

By an order dated 7th April, 1967, the Central

Government allowed the revision petitions of the

appellant and respondent No.10 and directed the

State Government to consider their mining lease

applications. Still no decision was taken by the State

Government, as a result of which the appellant moved

another revision petition before the Central

Government on 22nd July, 1967. The Central

Government rejected the revision of the appellant by

its order dated 13th October, 1967.

5. Being aggrieved, the appellant filed OJC No.855 of

1969 seeking a direction from the High Court for grant

of mining lease in its favour. Respondent No.10

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intervened in the aforesaid writ petition. By an order

dated 21st June, 1971, the High Court dismissed the

writ petition filed by the appellant.

6. Pursuant to the order of the Central Government

dated 7th April, 1967, the State Government on 3rd

September, 1971, for the first time, passed an order

recommending the grant of mining lease in favour of

respondent No.10 and sought the approval of the

Central Government as required under Section 5(1) of

the Mines and Minerals (Development and Regulation)

Act, 1957. The Central Government by its order dated

18th January, 1972 refused to accord its approval in

favour of respondent No.10. It appears that the State

Government on 25th April, 1972 again requested the

Central Government for grant of approval to its

recommendation made in favour of respondent No.10

Dr. Sarojini Pradhan. However, by its letter dated 29th

December, 1972, the Central Government directed the

State Government to reject the mining lease

application of Dr. Pradhan. Thereafter on 8th June,

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1973, the State Government rejected all pending

mining lease applications including the application of

appellant and Dr. Sarojini Pradhan.

7. Challenging the aforesaid order, both the appellant

and Dr. Pradhan filed the revision petitions before the

Central Government. The Central Government by its

order dated 2nd May, 1978 rejected the

revision filed by Dr. Sarojini Pradhan but allowed the

revision filed by the appellant with a direction to the

State Government to pass a fresh order on merits.

8. It appears that Dr. Pradhan filed a writ petition being

OJC No.829 of 1978 challenging the order passed by

the Central Government dated 2nd May, 1978. On 4th

September, 1987, the High Court allowed the writ

petition with the following directions :

“We direct the Central Government to reconsider the question of grant of approval for the grant of lease of iron ore and manganese in respect of the area after giving all parties concerned an opportunity of hearing. The mode and manner of hearing shall be regulated by the Central Government and it shall convey its decision by a

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speaking order, i.e. by giving reasons for the decision.”

9. We may notice here that in the aforesaid writ petition,

the appellant and the other applicants had filed

applications for intervention. However, the cases of

interveners were not considered individually by the

High Court, having regard to the directions which were

given by it. Few days after the aforesaid decision

dated 4th September, 1987, Dr. Pradhan died on 10th

September, 1987. Since at that time Dr. Pradhan was

only an applicant for the mining lease, the appellant

claims that her application was lapsed.

10. An application was filed by the legal heirs of

Dr. Pradhan for substitution in the revision filed by her

and was pending before the Central Government. In

OJC No.829 of 1978, a Miscellaneous Case No.1773 of

1988 was filed wherein the aforesaid fact of death of

Dr. Pradhan and the fact of application for substitution

of her legal heirs were considered. In the aforesaid

application, a direction was given by the High Court on

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28th April, 1988 to the Central Government to inform

the parties about the stage of revision and the date on

which the revision petition was posted for hearing. It

was made clear that the legal heirs of Dr. Pradhan

may appear before the Central Government on 16th

May, 1988 and seek directions; regarding the hearing

of revision application. With these observations, the

miscellaneous case was disposed of. Another Misc.

Case being Misc. Case No.1977 of 1988 was field in

the aforesaid OJC NO.829 of 1978. In the aforesaid

Case No.1977 of 1988, on 11th May, 1988, the High

Court passed the following order :

“Heard.

On 28.4.1988, on a complaint made by the petitioner that no action had been taken by the Central Government to implement our judgment in OJC No.829/87, we directed that the legal representatives of the deceased petitioner would appear before the Central Government on 16th May, 1988 to take steps regarding hearing. An application has now been filed stating that the legal representatives could not appear before the Central Government on that day due to difficulties stated in the petition. The counsel for the parties now agree that the legal representatives of the deceased petitioner would appear before the Central Government on the 6th of June, 1988 on which day a date of hearing shall be fixed.

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The Misc. case is disposed of accordingly.”

11. It may be noted here that in both the Misc. cases the

appellant was a party and was heard.

12. In the meantime, another matter being OJC No.1431 of

1980 was filed. In the aforesaid matter, a Division

Bench of the High Court rejected the contentions of

the State that on the death of Dr. Pradhan, her writ

petition will abate.

13. Thereafter on 11th May, 1990, the Central Government

conveyed to the State Government its approval of

grant of mining lease in favour of the legal

representatives of Dr. Pradhan. The appellant,

however, claims that no such order, with reasons, was

made available to the parties. In view of the aforesaid

approval, the State Government by its order dated 24th

May, 1990 asked the legal representatives of Dr.

Pradhan to furnish certain information and documents

regarding the grant of mining lease. By a letter

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dated 26th June, 1990, the legal representatives of

Dr. Pradhan furnished the information and documents

to the State Government. At this stage, the appellant

filed OJC No.4316 of 1990 challenging the order dated

11th May, 1990 passed by the Central Government,

even though the said order was not made available to

the parties. On 18th December, 1990

the High Court passed an interim order staying the

operation of the order of Central Government dated

11th May, 1990.

14. Whilst this controversy between the parties about the

abatement of the application of Dr. Pradhan for

mining, as also the writ petition filed by her, was

pending, a significant change took place in that on 20th

February, 1991 Rule 25A was inserted in the Minor

Concession Rules, 1961 w.e.f. 1st April, 1991. The

aforesaid rule permitted the legal representatives to

continue pressing an application for grant of mining

lease even if the applicant dies.

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15. It appears that OJC No.1269 of 1982 filed by

Dr. Pradhan challenging the order passed by the State

Government rejecting the application filed by her for

mining lease for “lime stone and Dolmite” over an

area in respect of certain other areas which are not

subject matter of the present proceedings came to be

decided on 23rd February, 1993. In this judgment, the

High Court held that Rule 25A is clarificatory in nature

and allowed the substitution of legal heirs of Dr.

Pradhan to pursue the mining application.

16. On 13th December, 1996, the High Court disposed of

OJC No.4316 of 1990 directing the State Government

to reconsider the matter and pass a fresh and

speaking order after hearing the appellant, legal

representatives of Dr. Pradhan and one M/s.

Balasore Minerals. On 8th April, 1999, the Central

Government approved the recommendations of the

State Government for grant of lease in favour of legal

representatives of Dr. Sarojini Pradhan. Thereafter,

terms and conditions were offered by the State

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Government to the legal representatives of Dr.

Pradhan on 8th July, 1999, which were accepted

by them on 20th July, 1999.

17. At this stage, the appellant filed OJC No.11537 of 1999

challenging the order dated 8th April, 1999. By

judgment dated 2nd July, 2001, the High Court allowed

the aforesaid writ petition, quashed the order of the

Central Government and remanded the matter for

fresh consideration. Relying on the order passed in

OJC No.1269 of 1982, it was held that on the death of

the original applicant Dr. Pradhan, her application for

mining lease does not abate. The Court also held that

this being a pure question of law, the issue has

become final and shall not be reopened in the hearing

before the Central Government.

18. The appellant challenged the order dated 2nd July,

2001 passed in OJC No.11537 of 1999 by filing SLP (C)

No.13556 of 2001 on the issue of allowing the legal

representatives of the deceased to be substituted in

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place of the latter. This was dismissed in limine on 24th

August, 2001. Thereafter on 26th September,

2001, the Central Government approved the

recommendations of the State Government for grant

of mining lease in favour of legal representatives of

Dr. Pradhan.

19. The appellant filed a fresh OJC No.3662 of 2002 (writ

petition) challenging the grant of lease dated 27th

September, 2001, on the basis that it constituted a

new cause of action. At this stage, according to the

appellant, another significant change took place in

that on 9th September, 2003, this Court set aside the

order passed by the High Court in OJC No.1269 of

1982 on 23rd February, 1993, which had been filed by

the legal representatives of Dr. Pradhan for certain

other areas. It was held by this Court in Saligram

Khirwal Vs. Union of India & Ors. 1 that legal heirs

cannot pursue an application for mining lease. Thus,

the interpretation placed on Rule 25A by the High

Court to the effect that it was clarificatory in nature, 1 (2003) 7 SCC 689

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was reversed by this Court. It was held that Rule 25A

was only prospective. Upon such interpretation, this

Court further observed that the legal heirs shall be at

liberty to make a fresh application in their own right.

20. On 2nd June, 2006, the High Court passed further order

in OJC No. 3662 of 2002 directing that any action

taken in connection with the grant of lease shall be

subject to the result of the writ petition. On 21st

February, 2007, the writ petition was allowed to be

amended in view of the judgment in Saligram’s case

(supra). The appellant raised a preliminary objection

relating to the maintainability of the application for the

grant of mining lease by the legal heirs of Dr. Pradhan,

contending that on the death of the original applicant,

her application for grant of mining lease abates and

the legal heirs cannot maintain the said application.

By order dated 31st August, 2007, the High Court held

that the controversy stood concluded between the

parties by the rejection of the earlier SLP (C) No.

13556 of 2001 on 24th August, 2001. It was held that

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the order dated 24th August, 2001 having attained

finality, the question of allowing the legal heirs to be

substituted for the deceased applicant had also

attained finality between the parties and would

operate as res judicata. The subsequent decision in

Saligram’s case (supra) is of no consequence.

Therefore, the preliminary objection raised by the

appellant about the maintainability of the mining lease

application by the legal heirs of Dr. Pradhan was

rejected. It is this interim order which has been

challenged in the present appeal.

21. We may further notice here that OJC No. 3662 of 2002

was ultimately dismissed by the High Court on

24th November, 2008. The dismissal of the aforesaid

writ petition was challenged by the appellant by filing

SLP (C) No. 5130 of 2009.

22. From the aforesaid narration of the facts, it becomes

apparent that only two issues arise in this appeal for

consideration viz. :

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(a) Is Rule 25A, as introduced in the Mineral

Concession Rules, 1960, w.e.f. 1st April, 1991, by

way of amendment dated 20th February, 1991,

clarificatory in nature, and hence retrospective,

or is it only prospective in nature?

(b) Whether the dismissal of the SLP on 24th August,

2001, filed by the appellant against the

judgment of the High Court dated 2nd July, 2001

in OJC No. 11537 of 1999 would attract the

principles of res judicata, so as to disentitle the

appellant from urging the invalidity of the

application of the legal heirs in place of the

deceased Dr. Pradhan, in the pending

proceedings in OJC No. 3662 of 2002, the

judgment which is the subject matter of the

present appeal?

23. We have heard the learned counsel for the parties at

length.

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24. Mr. K.K. Venugopal, learned senior counsel appearing

for the appellant, submitted that the dismissal of the

earlier SLP on the preliminary issue will not act as a

bar against the SLP challenging the order passed at

the final stage. He submitted that in SLP (C) No.

13556 of 2001, this Court did not entertain the

challenge against the order of the High Court

permitting the legal heirs of Dr. Pradhan to be

substituted for her and to pursue the litigation with

regard to the mining lease. In support of this

submission, the learned counsel relied on The

Chamber of Colours and Chemicals (P) Ltd. Vs.

Trilok Chand Jain 2 , Taleb Ali & Anr. Vs. Abdul Aziz

& Ors. 3 , and Shah Babulal Khimji Vs. Jayaben D.

Kania & Anr. 4 He further submitted that the principle

of res judicata would not be applicable when the law is

subsequently declared contrary to the law earlier

declared, on the basis of which the decision was given

which is sought to be reopened. In support of this

proposition, he relies upon the law laid in cases of

2 (1973) 9 DLT 510 Para 6 3 AIR 1929 Cal 689 Para 38 4 (1981) 4 SCC 8 Paras 55 and 78

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Mathura Prasad Bajoo Jaiswal & Ors. Vs. Dossibai

N.B. Jeejeebhoy 5 , Nand Kishore Vs. State of

Punjab 6 , Sushil Kumar Mehta Vs. Gobind Ram

Bohra (Dead) Through His LRs 7 , and

Kunhayammed & Ors. Vs. State of Kerala & Anr. 8

25. In Kunhayammed (supra), it was held that the

dismissal in limine is not a decision on merits, it is only

an expression of opinion that the Court would not

exercise jurisdiction under Article 136 (Paras 14, 16

and 17). Additionally in the written submissions, the

learned counsel has also relied upon the judgment in

the case of Saligram (supra). On the basis of this

judgment, it was submitted that upon the death of an

applicant for mining lease, the application abates and

the legal heirs would have no legal right to step into

the shoes of the deceased applicant, and that such an

application would be non est in the eyes of law. If so,

any recommendation for grant of mining lease to the

5 (1970) 1 SCC 613 6 (1995) 6 SCC 614 para 17 7 (1990) 1 SCC 193 para 26 8 (2000) 6 SCC 359

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legal heirs, or approval of such recommendation of the

Central Government, would be mere nullities in the

eyes of law. He relied on paragraphs 11 and 12 of the

judgment. Learned senior counsel further submitted

that the judgment in Saligram’s case (supra)

involved an interpretation of the statutory Rule 25A.

Such an interpretation is in the realm of public law. It

would, therefore, be a judgment in rem. Principle of

res judicata would have no application in such a case.

In support of this proposition, learned senior counsel

relied on the judgment of this Court in U.P. Pollution

Control Board & Ors. Vs. Kanoria Industrial Ltd.

& Anr. 9 He submitted that the law declared in the

aforesaid judgment would necessarily apply to any

pending case where the issue is a live one. The

contrary interpretation placed on Rule 25A by the High

Court in the earlier proceedings would be of no

consequence. An application which is non est and the

order made thereon in favour of the legal heirs is a

mere nullity, in the eyes of law, and cannot be treated

as a valid application in the pending writ petition OJC 9 (2001) 2 SCC 549 Para 18

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No. 3662 of 2002. Mr. Venugopal further

submitted that the legal position was made clear by

this Court even before insertion of Rule 25A in the

case of C. Buchi Venkatarao Vs. Union of India &

Ors. 10 .

26. Mr. Dushyant Dave, learned senior counsel for the

respondent No. 10 submits that in the facts and

circumstances of this case, it is not open to the

appellant to question the status of the LRs of

respondent No. 10 on the basis of the “order” in the

case of Saligram Khirwal (supra).

27. Learned senior counsel submits that the case of

Saligram Khirwal (supra) is merely an order and

not a judgment. There is no declaration of law in the

case of Saligram Khirwal (supra). In fact, this Court

has not interpreted Rule 25A of the Rules in the

aforesaid order. The order makes it clear that Rule

25A, on its plain reading does not have any

applicability to the situation emerging from the facts 10 (1972) 1 SCC 734 Para 14

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in that case. He further submitted that even assuming

for the sake of argument that Saligram’s order lays

down any principle of law, the same can not aid the

appellant in reopening the status of the LRs of the

respondent No. 10 in the present case. He seeks

support for the aforesaid proposition from the

explanation to Order 47 Rule 1 of the Code of Civil

Procedure, 1908. He relies on the judgment of this

Court in the case of Shanti Devi Vs. State of

Haryana & Ors. 11 and Union of India & Ors. Vs.

Mohd. Nayyar Khalil & Ors. 12 The learned senior

counsel reiterates that the claim made by the

appellant would be barred by res judicata. In support

of his submission, he relies on the judgment in the

case of State of West Bengal Vs. Hemant Kumar

Bhattacharjee & Ors. 13 and Mohanlal Goenka Vs.

Benoy Kishna Mukherjee & Ors. 14 . On the basis of

the aforesaid judgments, it is submitted that even if

the judgment dated 2nd July, 2001 rendered by the

11 (1999) 5 SCC 703 12 (2000) 9 SCC 252 13 1963 Supp (2) SCR 542 14 1953 SCR 377

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High Court in OJC No. 11537 of 1999 and the

dismissal of the SLP (C) No. 13556 of 2001 are

considered to be erroneous in view of the earlier

judgment of this Court in C. Buchivenkata Rao

(supra) and/or orders in Saligram (supra), the

matter regarding LRs of respondent No. 10 and their

status to maintain and proceed with the mining lease

application can not be reopened since it has become

final inter parte. According to the learned senior

counsel, res judicata is not a mere technical rule, it is

based on principle of justice and public interest, viz. a

litigant should not be vexed twice over the same issue

and there should be finality. The rule is based on

equity, justice and good conscience. Subsequent

change in law cannot unsettle a matter which has

attained finality. He points out that principles of res

judicata and constructive res judicata have been

applied even to Public Interest Litigation, which cannot

be said to be in the realm of private law. He submits

that the judgment relied by the appellant in the case

of Mathura Prasad (supra) is distinguishable as it is

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dealing with a situation where there was inherent lack

of jurisdiction and is therefore, not applicable in the

present case.

28. Mr. Mohan Jain, has also submitted that the claim of

the appellant is clearly barred by the principle of res

judicata. He has relied upon the case of Satyadhyan

Ghosal & Ors. Vs. Deorajin Debi (Smt.) & Anr. 15

29. We have considered the submissions made by the

learned counsel for the parties.

30. At the outset, it needs to be noticed that the parties

herein have been competing for the same mining

lease for the past half-a-century. A perusal of the

facts narrated herein above would also show that

there have been several rounds of litigation between

the parties. Although, we have noticed all the facts in-

extenso for the purpose of deciding the issue of res

judicata, it is necessary to recapitulate the

foundational facts with regard to the aforesaid issue of 15 AIR 1960 SC 941

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res judicata. On 3rd September, 1971, the

State Government passed an order recommending the

grant of mining lease in favour of respondent No. 10.

Since the Central Government did not approve the

recommendation made by the State Government, on

8th June, 1973, it rejected all pending mining lease

applications including the application of the appellant

and Dr. Sarojini Pradhan. On 2nd May, 1978, in a

revision petition filed by the appellant challenging the

order of cancellation of its application for grant of

lease, the Central Government issued a direction to

the State Government to pass a fresh order on merits.

This order was challenged by Dr. Pradhan in OJC

No. 829 of 1978. The writ petition was allowed by the

High Court on 4th September, 1987 by directing the

Central Government to reconsider the question for the

grant of lease after giving all parties concerned an

opportunity of hearing. During the pendency of the

revision petitions, Dr. Pradhan died on 10th September,

1987. Since OJC No. 829 of 1978 was still pending in

the High Court, the legal heirs of Dr. Sarojini Pradhan

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by way of a Misc. Case No. 1773 of 1988 brought the

fact of her death on the record of the proceedings and

sought a direction of the High Court to be substituted

as her legal heirs. It is a matter of record that on the

application filed by the legal heirs for substitution in

place of respondent No. 10, the appellant was duly

heard. The application made by the LRs of respondent

No. 10 was allowed on 28th April, 1988 with the

following observations:-

“Misc. Case No. 1773 of 1988 Heard counsel for the parties.

2. By judgment dated 4/9/1987, while quashing Annexure 5 the order passed by the Central Government, and the consequential order passed by the State Government as per Annexure 8 and the revisional order as per Annexure 11, we directed the Central Government to re-consider the question of grant of approval for the grant of lease for iron ore and manganese giving the parties concerned an opportunity of hearing. A grievance is now made that despite lapse of more than six months, nothing is heard from the Central Government. In the meanwhile, the sole petitioner has died and it is stated than an application for substitution of his legal representatives has already been filed and the revision is pending before the Central Government.

3. In these circumstances, we would require the central government to inform the parties the further stage of the revision and the date to

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which the revision would be posted for hearing. The legal representatives of the petitioner may appear before the Central Government on 16th May, 1988 to take directions regarding hearing of the revision.

4. The Misc. Case is disposed of accordingly. A copy of this order be communicated to the Central Government. A copy of this order be also handed over to the standing counsel for the Central Government. Certified copy of this order be granted in course of today, if an urgent application is made therefore.”

31. It appears that the LRs of respondent No. 10 failed to

appear before the Central Government on 16th May,

1988. Therefore, they filed another Misc. Case No.

1977 of 1988 seeking another opportunity to appear

before the Central Government. Therefore, the High

Court by its order dated 11th May, 1988 directed the

LRs of Dr. Sarojini Pradhan to appear before the

Central Government on 6th June, 1988. As is evident

from the order, which we have reproduced in the

earlier part of this judgment that the direction was

issued on the agreement of the counsel for the

parties. In the meantime in another matter being OJC

No. 1431 of 1980, the Division Bench rejected the

contention of the State that on the death of Dr.

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Sarojini Pradhan, her writ petition will abate and the

substitution of the LRs of Dr. Sarojini Pradhan was

allowed. In accordance with the directions issued by

the High Court in the orders dated 28th April, 1988 and

11th May, 1988, the LRs of respondent No. 10 duly

appeared before the Central Government. Upon

hearing the concerned parties, the Central

Government took a decision under Section 5(1) of the

Mines and Minerals (Development and Regulation) Act,

1957 to approve the grant of mining lease in favour of

LRs of Dr. Sarojini Pradhan. Appellant

ought to have challenged the status of the LRs before

the High Court at the time of the hearing of Misc. Case

No. 1773 of 1988 and Misc. Case No. 1977 of

1988. Appellant, it would appear, had accepted the

locus standi of the LRs of Dr. Sarojini Pradhan. This is

evident from the fact that in the subsequent hearing

before the Central Government, which were held

consequent upon the directions issued by the High

Court in the aforesaid two Misc. cases, the appellant

raised no objection with regard to the locus standi of

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the legal heirs of respondent No. 10. Clearly,

therefore, a final decision had been reached with

regard to the acceptability of the locus standi of the

LRs of respondent No. 10 to step into the shoes of the

deceased Dr. Sarojini Pradhan. The appellant

decided to raise the issues of the abatement of the

application of Dr. Sarojini Pradhan only after a decision

was taken by the Central Government on 11th May,

1990, which approved the recommendation of the

State Government for grant of mining lease in favour

of the legal heirs of Dr. Sarojini Pradhan. It is also

noteworthy that OJC No. 4316 was decided

on 13th December, 1996 with a direction to the Central

Government to reconsider the matter and pass a

speaking order. In the aforesaid writ petition, Dr.

Sarojini Pradhan was a respondent. The appellant sets

out in meticulous detail the history of litigation

between the parties. It is specifically noticed in the

judgment that although a number of contentions have

been raised to challenge the order dated 11th May,

1990, ultimately the dispute was confined to the

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question as to whether or not it was necessary for the

Central Government to hear all the applicants

alongwith Dr. Sarojini Pradhan. The main ground for

challenging the order of the Central Government

accepting the recommendation of the State

Government was that the Central Government had

failed to pass a speaking order. The locus standi of

the LRs of respondent No. 10 was not under challenge

in the proceedings before the High Court in OJC No.

4316 of 1990. The writ petition was allowed, a

direction was again issued to the Central Government

to reconsider the matter and pass a fresh speaking

order giving reasons for the decision after hearing all

the concerned parties. This was the second time

when the locus standi of the LRs of respondent No. 10

was accepted judicially. It is noteworthy that the

appellant accepted the aforesaid judgment. It was not

assailed either by way of a review petition before the

High Court or by way of a Special Leave Petition

before this Court. In such circumstances, it would be

difficult to accept the submissions of Mr. Venugopal

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that the High Court has erroneously accepted the plea

raised by the LRs of the respondent that the claim of

the appellant is barred by res judicata. Considering

the principle of res judicata, this Court in the case of

Mohanlal Goenka Vs. Benoy Kishna Mukherjee

(supra) held as under:

“22. There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates a res judicata.”

32. This court also held that “a wrong decision by a court

having jurisdiction is as much binding between the

parties as a right one and may be superseded only by

appeals to higher tribunals or other procedure like

review which the law provides.” [See State of West

Bengal Vs. Hemant Kumar Bhattacharjee

(supra)]

33. In view of the aforesaid clear enunciation of the law by

this Court, it would appear that even if the judgment

dated 2nd July, 2001 rendered by the High Court in OJC

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No. 11537 of 1999 and the dismissal in limine of SLP

(C) No. 13556 of 2001 arising from the aforesaid

judgment is considered to be erroneous in view of the

judgment in Saligram’s case (supra), the matter

regarding the locus standi of the LRs of respondent

No. 10 to proceed with a mining lease application

cannot be permitted to be reopened at this stage

since it has become final inter partes.

34. Even though, strictly speaking, res judicata may not

be applicable to the proceedings before the Central

Government, the High Court in exercise of its power

under Article 226 was certainly entitled to take into

consideration the previous history of the litigation

inter partes to decline the relief to the appellant.

Merely because the High Court has used the

expression that the claim of the appellant is barred by

res judicata would not necessarily result in nullifying

the conclusion which in fact is based on considerations

of equity and justice. Given the history of litigation

between the parties, which commenced in 1950s, the

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Page 32

High Court was justified in finally giving a quietus to

the same. The subsequent interpretation of Rule 25A

by this Court, that it would have only prospective

operation, in the case of Saligram (supra), would not

have the effect of reopening the matter which was

concluded between the parties. In our opinion, if the

parties are allowed to re-agitate issues which have

been decided by a Court of competent jurisdiction on a

subsequent change in the law then all earlier litigation

relevant thereto would always remain in a state of

flux. In such circumstances, every time either a

statute or a provision thereof is declared ultra vires, it

would have the result of reopening of the decided

matters within the period of limitation following the

date of such decision. In this case not only the High

Court had rejected the objection of the appellant to

the substitution of the legal heirs of Dr. Sarojini

Pradhan in her place but the SLP from the said

judgment has also been dismissed. Even though,

strictly speaking, the dismissal of the SLP would not

result in the merger of the judgment of the High Court

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Page 33

in the order of this Court, the same cannot be said to

be wholly irrelevant. The High Court, in our opinion,

committed no error in taking the same into

consideration in the peculiar facts of this case.

Ultimately, the decision of the High Court was clearly

based on the facts and circumstances of this case.

The High Court clearly came to the conclusion that the

appellant had accepted the locus standi of the LRs of

Dr. Sarojini Pradhan to pursue the application for the

mining lease before the Central Government, as well

as in the High Court.

35. In view of the conclusions recorded by us above, it is

not necessary to express an opinion on the

interpretation of Rule 25A of the Mineral Concession

Rules, 1960. In any event, the judgment in the case of

Saligram (supra) has concluded that the Rule would

have only prospective operation. The legal position

having been so stated, it is not necessary for us to

dilate upon the same.

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CIVIL APPEAL NO.1014 OF 2013 [Arising out of SLP (C) No. 5130 of 2009]

36. This now brings us to the second appeal arising out of

Special Leave Petition, i.e., 5130 of 2009, wherein the

appellant has challenged the final judgment rendered

by the High Court in the amended OJC No. 3662 of

2002 which was decided on 24th November, 2008.

37. The appellant now claims that order

dated 27th September, 2001 is void as it has been

passed in breach of rules of natural justice. Mr.

Krishnan Venugopal, Senior Advocate, appearing for

the appellant has submitted that in pursuance of the

order dated 2nd July, 2001 passed by the High Court in

OJC No. 11537 of 1999, parties were heard by Mr. S.P.

Gupta, Joint Secretary for two days, i.e.,

28th August, 2001 and 13th September, 2001.

However, the order dated 27th September, 2001 has

been passed by Dr. R.K. Khatri, Deputy

Secretary, who did not hear the parties at all. Mr.

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Krishnan submits that, by virtue of the orders passed

by the High Court, the proceedings before the Central

Government were quasi-judicial in nature. Therefore,

it was necessary that the same officer who gave a

hearing to the parties ought to have passed the order

in relation to the competing claims with regard to the

grant of mining lease. Learned counsel highlights that

originally the appellant had obtained the prospecting

licence for the area in dispute between 17th October,

1962 and 16th October, 1963. However, while the

appellant’s application for mining lease was pending,

the State Government made the area available for re-

grant under Rule 58 [now Rule 59(1)] of the Rules, as

they stood in 1965. Six persons including the

appellant and Late Dr. Sarojini Pradhan applied for the

grant of mining lease on the same date, i.e. 10th

September, 1965, thus triggering the application of

the proviso to Section 11(2) read with the merit based

criteria in Section 11(3) of the MMDR Act. As four of

the contenders dropped out over the next four

decades, only appellant and respondent No. 10, i.e.,

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the legal heirs of the Late Dr. Pradhan were the only

contesting parties for the mining lease at the relevant

time. Repeatedly, the orders passed in favour of Dr.

Sarojini Pradhan for the grant of mining lease has

been set aside by the High Court on the ground of

being in violation of the rules of natural justice. On

31st August, 2007, the Division Bench rejected the

preliminary issue raised by the appellant to the effect

that the application made by Dr. Pradhan for a mining

lease abates on her death, in 1987. Although the High

Court held that legal heirs of Dr. Pradhan can be

substituted in her place, the writ petition was kept

pending for final disposal on the issue of as to whether

the orders granting the lease in favour of her legal

heirs had been passed in violation of rules of natural

justice.

38. The High Court in the impugned judgment took note of

the submissions made by Dr. Devi Pal, learned senior

counsel appearing for the appellant. The main thrust

of the argument of Dr. Pal was that the matter had

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been heard by Mr. S.P. Gupta, Joint Secretary

on 28th August, 2001 and 13 th

September, 2001, but has been decided by

Dr. R.K. Khatri, Deputy Secretary of the Government of

India, Ministry of Coal Mines vide order dated 27th

September, 2001, and the said order had been

communicated by Mr. O.P. Kathuria,

Under Secretary to the Government of India. The

submissions made in the High Court have been

reiterated before us by Mr. Krishnan Venugopal. He

submits that the approval granted in favour of legal

heirs of Dr. Sarojini Pradhan causes

adverse civil consequences to the appellant. Such an

order could only have been passed by the officer, who

had heard the parties. The order, however, has been

passed by a different officer, Dr. R.K. Khatri, on the

basis of the notes recorded by Mr. S.P. Gupta in the

relevant file. In support of the submission, the learned

counsel has relied on the judgment of this Court in

Gullapalli Nageswara Rao & Ors. Vs. Andhra

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Pradesh State Road Transport Corporation &

Anr. 16

39. Learned counsel then submitted that even if, for the

sake of argument, it is accepted that approval under

the proviso to Section 5(1) of the MMDR Act is to be

treated as administrative in character, the impugned

order dated 27 th September, 2001 still

deserves to be set aside because it is neither

expressed nor can it be deemed to be expressed in

the name of the President of India, as required by

Article 77 of the Constitution of India and the Conduct

of Business Rules. In support of this submission, the

learned counsel relies upon the judgment of this Court

in Bachhittar Singh Vs. State of Punjab & Anr. 17

On the basis of the aforesaid judgment, Mr. Krishnan

Venugopal submits that the impugned order, not

having been passed by the concerned Minister of the

Central Government, can not be deemed to be in the

name of the President. He further emphasised that

16 AIR 1959 SC 308 17 AIR 1963 SC 395

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there is no material on the record to show that, under

the Rule of Business, the power to pass the order on

behalf of the Central Government under proviso to

Section 5(1) of the MMDR Act was delegated to the

Deputy Secretary. He further pointed out that even if

the order is administrative in character, it would still

be non est and void, having been passed in violation

of rules of natural justice and causes serious civil

consequences to the appellant. For this proposition, he

relies on the judgment of this Court in Automotive

Tyre Manufacturers Association Vs. Designated

Authority & Ors. 18 Mr. Krishan further submitted

that the Central Government’s order is vitiated

because it is based mainly on the report of the Indian

Bureau of Mines comparing the Iron Ore production of

the appellant with that of the legal heirs of Late Dr.

Sarojini Pradhan for 1999-2000 and 2000-2001, which

is a period after the State Government’s

recommendation dated 5th February, 1999. The

relevant period prior to 5th February, 1999 has been

wholly ignored by the Central Government in passing 18 (2011} 2 SCC 258

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the order dated 27th September, 2001. He further

submitted that the comparative merit of the parties

had to be judged on the criteria specified under

Section 11(3) of the MMDR Act. The criteria under the

aforesaid section include :- (a) special knowledge or

experience in prospecting operations or mining

operations; (b) the financial resources of the

applicants, (c) nature and quality of technical staff

employed or to be employed by the applicant, (d) the

investment which the applicant proposes to make in

the mines. Even though the written statements

submitted by the parties about their financial and

technical capabilities were sent to the State

Government for verification, a separate report was

sought from the Indian Bureau of Mines which was

confined only to two years: 1999-2000 and 2000-2001.

The impugned order dated 27th September, 2001 has

been passed primarily based on the report of the

Indian Bureau of Mines for the aforesaid two years.

The order is clearly vitiated as it is based on

extraneous considerations. In support of this, the

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learned senior counsel relies on Commissioner of

Income Tax, Bombay & Ors. Vs. Mahindra and

Mahindra Limited & Ors. 19 The order passed by the

Central Government is contrary to the directions

issued by the High Court on 2nd July, 2001

by which the matter had been remanded to the

Central Government with a direction to place the

recommendation dated 5th February, 1999 of the State

Government before the parties, to hear them, and to

pass a speaking order with reasons. The High Court

did not authorise the Central Government to conduct

its own investigations and elicit fresh materials outside

the scope of the State Government recommendation.

In support of this submission, the learned counsel

relies on a judgment of this Court in Sandur

Manganese and Iron Ores Limited Vs. State of

Karnataka & Ors. 20 The learned counsel further

pointed out that the State Government can not grant a

mining lease without the previous approval of the

Central Government under the proviso to Section 5(1)

19 (1983) 4 SCC 392 20 (2010) 13 SCC 1

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of the Act. Therefore, the power of the Central

Government is confined to the grant of the previous

approval on the basis of the material submitted by the

State Government for seeking such a previous

approval. In support of this submission, the learned

counsel relied on the judgments of this Court in Lord

Krishna Textile Mills Vs. Workmen 21 , Ashok

Kumar Das & Ors. Vs. University of Burdwan &

Ors. 22 , State of Tamil Nadu Vs. Hind Stone &

Ors. 23 and Kabini Minerals (P) Ltd. & Anr. Vs.

State of Orissa & Ors. 24

40. Learned counsel further submitted that the impugned

order dated 27th September, 2001 is vitiated as it has

been obtained by fraud. He submitted that both

parties have provided a statement of the respective

technical and financial capabilities to the Central

Government. In their submissions before the Central

21 AIR 1961 SC 860 22 (2010) 3 SCC 616 23 (1981) 2 SCC 205 24 (2006) 1 SCC 54

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Government, the legal heirs of Late Dr.

Sarojini Pradhan had categorically stated that one Mr.

Nilamani Ojha, a mining engineer, was the number

two person in their technical team. This fact was

denied by Mr. Ojha in a latter dated 5th

November, 2001 written to the Central Government.

He further submitted that even technical information

submitted by the legal heirs of Late Dr.

Pradhan is factually incorrect. Therefore, the decision

of the Central Government is vitiated by fraud.

Learned counsel relies on Regional Manager,

Central Bank of India Vs. Madhulika Guruprasad

Dahir & Ors. 25 and State of Orissa & Ors. Vs.

Harapriya Bisoi26.

41. Mr. Ashok K. Gupta, learned senior counsel appearing

for the legal heirs of respondent No. 10, had made

detailed submissions controverting the submissions

made on behalf of the appellant.

25 (2008) 13 SCC 170 26 (2009) 12 SCC 378.

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Page 44

42. It is submitted that the submissions made by the

appellant that the Central Government’s order is not in

consonance with Article 77, is wholly unfounded and

devoid of merits. This ground was not even pleaded in

the writ petition before the High Court. In fact, no such

submission was made at the hearing of the writ

petition by the High Court. No grievance is made in

the SLP that such a submission was made before the

High Court and that it was not considered. The

submissions raised by the appellant at this stage

being a mixed question of law in fact ought not to be

permitted to be raised in the present proceedings.

This apart, he submits that the judgment in the case

of Bachhittar Singh (supra) was rendered on the

basis of its own facts. Furthermore, in that case, the

order signed by the Minister was not communicated to

the parties and therefore, it was held that there was

no effective order. In the present case, the order was

passed on the basis of the approval granted and

conveyed in the manner prescribed under law. With

regard to the order being vitiated as it was passed on

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consideration of the material subsequent to the date

of recommendation of the State Government viz. 5th

February, 1999, he submits that the appellant cannot

even be permitted to raise such an objection, having

willingly submitted materials/information subsequent

to the date of the recommendation by the State

Government. Mr. Gupta further submits that Section

5(2) of the MMDR Act does not prohibit the Central

Government to take into account material subsequent

to the recommendations made by the State

Government. In the present case, it was necessary as

the hearing was being conducted 2½ years after the

recommendations have been submitted. Learned

counsel further submits that no fraud was played by

the legal heirs of respondent No.10, as is sought to be

canvassed by the appellant. No such ground of fraud

was either pleaded in the writ petition before the High

Court nor was any submission made to that effect

before the High Court. The letter dated 5 th

November, 2001 of Mr. Nilamani Ojha has been

obtained by the appellant only for the purpose of

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Page 46

prejudicing the case of the appellant in this Court.

With regard to the main ground relating to breach of

rules of natural justice and which is premised on the

basis that no hearing was granted by the officer that

passed the impugned order, it is submitted that the

submission is contrary to the material on the record.

The matter was heard by Mr. S. P. Gupta, and it was

his note running into 47 paragraphs, which was

approved by the Secretary and the Minister, as per the

rules of the business. The hearing was to be given by

the Central Government and not by a particular

individual. Therefore, it was clearly a case of

institutional hearing and it was not necessary that

Mr. Gupta should have passed the order. In this

context, he relies on a judgment of the House of Lords

in Local Government Board Vs. Arlidge 27 .

According to the learned counsel, this principle is also

recognized by this Court in Automotive Tyre

Manufacturers Association (supra) and Ossein

and Gelatine Manufacturers’ Association of India

27 (1915) AC 120

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Vs. Modi Alkalies and Chemicals Limited & Anr. 28

and Pradyat Kumar Bose Vs. The Hon’ble The

Chief Justice of Calcutta High Court29.

43. We have considered the submissions made by the

learned counsel for the parties.

44. It is by now well settled that judicial review of the

administrative action/quasi judicial orders passed by

the Government is limited only to correcting the errors

of law or fundamental procedural requirements which

may lead to manifest injustice. When the conclusions

of the authority are based on evidence, the same

cannot be re-appreciated by the court in exercise of its

powers of judicial review. The court does not exercise

the powers of an appellate court in exercise of its

powers of judicial review. It is only in cases where

either findings recorded by the administrative/quasi

judicial authority are based on no evidence or are so

perverse that no reasonable person would have

reached such a conclusion on the basis of the material

28 1989 (4) SCC 264 29 1955 (2) SCR 1331

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available that the court would be justified to interfere

in the decision. The scope of judicial review is limited

to the decision making process and not to the decision

itself, even if the same appears to be erroneous. This

Court in the case of Tata Cellular Vs. Union of

India 30 upon detailed consideration of the parameters

within which judicial review could be exercised, has

culled out the following principles :

“70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.

……. …… …… ….. ….. ….. …

…. ……. …… …… ….. ….. …..

30 (1994) 6 SCC 651

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77. The duty of the court is to confine itself to the question of legality. Its concern should be:

1. Whether a decision-making authority exceeded its powers ?

2. Committed an error of law,

3. committed a breach of the rules of natural justice,

4. reached a decision which no reasonable tribunal would have reached or,

5. abused its powers.

Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under :

(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time…… ……………………………..

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…….. ……… ……… ……….. ………. ….”

45. The aforesaid judgment has been followed again and

again. It was clearly observed in the said judgment

that where the Court comes to the conclusion that the

administrative decision is arbitrary, it must interfere.

However, the Court can not function as an appellate

authority substituting the judgment for that of the

administrator. Applying the aforesaid principles, the

High Court has examined the entire record and has

concluded that the decision making process is not

flawed in any manner, as canvassed by the appellant.

The High Court noticed that the record was duly

produced by Mr. J.K. Mishra, learned

Assistant Solicitor General. It was also noticed that

throughout the proceedings, no reference has been

made to any particular officer or post or any

designation. The order dated 11th July, 2001 passed by

the High Court merely directed that they shall appear

before the Central Government on 18th July, 2001.

Order dated 14th August, 2001 clearly

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Page 51

indicates that the matter was being heard in view of

the directions given by the High Court in OJC No.

11537 of 1999 and secondly, notice was issued for

hearing on 28th August, 2001. The record further

indicated that the matter was heard by Mr. S. P.

Gupta, Joint Secretary for two days i.e. on 28th August,

2001 and 13th September, 2001. Both the parties had

been given opportunity to place on the record any

documents and written submissions in support of their

claim. It was also apparent that particulars submitted

were made available to all the parties. On

13th September, 2001, Mr. S. P. Gupta, Joint Secretary

made a note as under :

“Thus, all the documents available with the Central Government are also available with both the parties.”

46. The High Court also took note of the fact that

independently of all the material supplied by the State

Government along with the recommendation and the

material made available by the parties, the Central

Government had also asked Indian Bureau of Mines to

furnish certain reports in support of both the parties.

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These reports were, in turn, made available to the

rival parties. The High Court further noticed that after

complying with all the formalities required, the issues

were finally adjudicated. Upon conclusions of the

arguments by the parties, Mr. S. P. Gupta, Joint

Secretary who had heard the parties prepared the

note running into 19 pages (from pages 30 –

49) containing 47 paragraphs of original record. The

note has been duly signed by Mr. S.P. Gupta,

Joint Secretary on 17th September, 2001. The High

Court further noticed that in fact this is the report

which had been duly approved by the Secretary

on 18th September, 2001 and by the Central

Government Minister on 25th September, 2001. While

making the endorsement of the approval, the

Secretary has written as under :-

“I endorse fully the above note of the Joint Secretary. This is a very old case in which the parties have repeatedly recourse to the courts. As such (sic) even now near litigation may follow. Therefore the decision of the Central Government has to be in terms of a speaking order which is backed by facts and law.”

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47. The High Court further notices that the impugned

order dated 27th September, 2001 is, in fact, a

verbatim copy of the report/note prepared by Mr. S.P.

Gupta, Joint Secretary. Upon examination of the entire

matter, the High Court has concluded that the order

has been signed by Mr. R.P. Khatri merely to

communicate the approval of the Central Government

to the parties.

48. We are of the considered opinion that the conclusions

reached by the High Court cannot be said to be

contrary to the established principles and parameters

for exercise of the power of judicial review by the

courts. At this stage, we may also make a reference to

a submission made by Mr. Krishnan that the High

Court did not give due consideration to the grievance

of the appellant raised in the writ petition with respect

to the merits because it assumed that the appellant

had attempted to bye-pass the alternative remedy of

revision available to it under Section 30 of MMDR Act

read with Rules 54 and 55 of the Rules. We are

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Page 54

of the considered opinion that the aforesaid

submission of the learned counsel is wholly misplaced.

The High Court merely noticed that the matter had

been referred back to the Central Government on a

limited issue. Therefore, it was not open to the Central

Government to re-open the entire controversy. It has

been observed by the High Court that such a power

would only be available to the Central Government in

exercise of its Revisional Powers under Section 30

read with Rules 54 and 55 of the Rules. We also do not

find much substance in the submission made by Mr.

Krishnan that the order dated 27th

September, 2001 is vitiated as it has been passed by

an officer who did not give a hearing to the parties.

This is clearly a case of an institutional hearing. The

direction has been issued by the High Court for a

hearing to be given by the Central Government. There

was no direction that any particular officer or an

authority was to give a hearing. In such

circumstances, the orders are generally passed in the

relevant files and may often be communicated by an

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officer other than the officer who gave the hearing.

The legality of institutional hearing has been accepted

in England since the case of Local Government

Board Vs. Arlidge (supra). The aforesaid judgment

was quoted with approval by this Court in Pradyat

Kumar Bose (supra). This Court approved the

following passage from the speech of Lord Chancellor

in the aforesaid case:

“My Lords, I concur in this view of the position of an administrative body to which the decision of a question in dispute between parties has been entrusted. The result of its enquiry must, as I have said, be taken, in the absence of directions in the statute to the contrary, to be intended to be reached by its ordinary procedure. In the case of the Local Government Board it is not doubtful what this procedure is. The Minister at the head of the Board is directly responsible to Parliament like other Ministers. He is responsible not only for what he himself does but for all that is done in his department. The volume of work entrusted to him is very great and he cannot do the great bulk of it himself. He is expected to obtain his materials vicariously through his officials, and he has discharged his duty if he sees that they obtain these materials for him properly. To try to extend his duty beyond this and to insist that he and other members of the Board should do everything personally would be to impair his efficiency. Unlike a Judge in a Court he is not only at liberty but is compelled to rely on the assistance of his staff.”

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In view of the aforesaid settled position of law, it is

difficult to accept the submissions of Mr. Krishnan that the

order dated 27th September, 2001 suffers from any legal or

procedural infirmity. In our opinion, the conclusions reached

by the High Court are in accordance with the settled

principles of law. Although a large number of cases have

been cited by the learned counsel for the parties on either

side, but it is not necessary to consider all of them

individually as the principles with regard to observance of

natural justice are well entrenched in our jurisprudence.

Undoubtedly, any decision, even if it is administrative in

nature, which causes adverse civil consequences must be

passed upon hearing the concerned parties. In our opinion,

the Central Government has fully complied with the

aforesaid principle in passing the order dated 27th

September, 2001.

49. In view of the above, we find no merit either in

Civil Appeal No. 1013 of 2013 arising out of

SLP (C)No. 23141 of 2007 or Civil Appeal No. 1014 of

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2013 arising out of SLP (C) No. 5130 of 2009. Both the

appeals are, therefore, dismissed with no order as to

costs.

.……..…………….….….J. [Surinder Singh Nijjar]

……….…………………….J. [H.L.Gokhale]

New Delhi; February 07, 2013.

5