(Prayer: This Review Petition Is Filed Under Section 114 Read With Order 47 Rule 1 Of CPC And Article 226 Of The Constitution Of India, Praying This, The Advocate For The Petitioner Has Filed The Above Review Petition Under Order 47 Rule 1 Of CPC, Praying This Hon'ble Court To Review The Order Dated 13/04/2012 Passed In W.P.No.17945/2007, On The File Of The Hon'ble High Court Of Karnataka, Bangalore.)
1. This review petition is filed against order dated 13/04/2012 passed in W.P.No.17945/2007. By that order, the writ petition was dismissed on preliminary objections raised by third respondent. More specifically, the writ petition was dismissed on the ground of locus standi of the petitioner to maintain it, secondly, on the ground of delay and laches in filing the petition and thirdly, on suppression of material facts.
2. Being aggrieved by that order, petitioner had filed Special Leave Petition.No.31398/2012 (SLP) before the Hon'ble Supreme Court. The SLP was withdrawn with liberty to assail the impugned order by way of a review petition as, according to the petitioner, there were certain errors apparent on the face of the record in the impugned order. The Hon'ble Supreme Court permitted withdrawal of the SLP and it was dismissed as withdrawn with liberty to file a review petition. It is on the strength of that order, this review petition has been filed.
3. We have heard learned senior counsel, Sri D.L.N.Rao, for the petitioner and learned senior counsel, Sri S.Ganesh, for respondent No.3 as well as learned Addl. Govt. Advocate for respondent Nos.1 and 2.
4. It was contended on behalf of the petitioner that there were certain factual errors in the impugned order and that the writ petition was dismissed on preliminary objections, which is incorrect. That the writ petition could not have been dismissed on the ground of locus standi as the petitioner was an applicant for the very same area, the mining lease of which was granted to the third respondent. That when the matter involved questions regarding the grant of public largesse, this court ought to have considered the case on merits rather than dismissing it on the ground of delay and laches. That certain observations made in Paragraphs 12, 17, 22 and 35 of the impugned order, are not correct. Highlighting these contentions, it was submitted that there being certain factual errors in the impugned order, they amount to errors on the face of the record and therefore, the impugned order ought to be recalled. It was also contended that when an issue of fraud was raised by the petitioner, then the matter ought to have been heard on merits rather than being dismissed on preliminary objections. That the petitioner had the locus standi to maintain the writ petition and that there was no suppression of any material fact. It was therefore contended that the impugned order be recalled and the writ petition be heard on merits.
5. Per contra, learned senior counsel appearing for third respondent contended that the impugned order would not call for any review let alone being recalled. If there was any error in the contents of certain paragraphs of the impugned order, that did not have a bearing on the conclusions arrived at by the Court in dismissing the writ petition on preliminary objections. That reasons were assigned in the impugned order as to why the writ petition had to be dismissed on the ground of locus standi, delay as well as suppression of material facts. On those aspects, arguments were addressed in extenso before the Division Bench and on acceptance of the contentions of third respondent, the writ petition was dismissed without going into its merits. According to the learned counsel for Respondent No.3, the Hon'ble Supreme Court could have entertained the SLP if the writ petition had been erroneously dismissed on preliminary objections but on the other hand, the petitioner instead of pursuing its SLP, withdrew it by seeking permission to file this review petition. The review petition does not make out any ground for reviewing the impugned order and therefore, there is no merit in the review petition.
6. Both learned senior counsel have drawn our attention to various paragraphs of the impugned order to buttress their respective contentions which shall be considered in detail.
7. Having heard learned counsel for the parties, the only point that arises for our consideration is as to whether the impugned order ought to be reviewed.
8. The writ petition assailed Notifications dated 27/02/2006, 29/07/2006 and the Mining Lease dated 14/03/2006 issued in favour of the third respondent. A direction was also sought to consider the application for Mining Lease dated 04/04/1996, made by the petitioner herein. According to the petitioner, it had set up an integrated steel plant in the State and had applied for grant of mining lease over an area of 1,776 acres in Kumaraswamy Range, Sandur Taluk, Bellary District, on 04/04/1996. The third respondent had also made an application for grant of mining lease in respect of 275 Acres in S.M.Block on 31/07/1980. The State Government had issued a Notification sanctioning mining lease over an area of 198 acres in favour of the third respondent on 27/02/2006 and subsequently, the lease deed was executed on 14/03/2006. According to the petitioner, the area granted to third respondent was a part of the area applied for by the petitioner and therefore, it overlapped. Subsequently, the State Government had issued a corrigendum dated 29/07/2006 reducing area of the lease granted to third respondent from 198 acres to 134 acres. Thus, the grant of mining lease to Respondent No.3 was assailed by the petitioner in the writ petition. The Legal Representatives of third respondent had filed their statement of objections raising preliminary objections on maintainability of the writ petition. The matter was heard on preliminary objections and accepting the same, the writ petition was dismissed. It is against that order, the review petition has been filed.
9. Learned senior counsel for the petitioner has drawn our attention to Paragraphs 10 to 12, to contend that those paragraphs consist of the following incorrect facts:-
(i) At paragraph 10 it is stated that "Letter dated 23/03/1999 to the effect of granting mining lease in favour of the petitioner in Ramanadurga Range is referred to at Annexure "R-4" by respondent No.3. The consequent order dated 27/03/2000 clearly states that the State Government recommended for grant of iron ore mining lease in Ramanadurga Deposit in favour of the petitioner in lieu of the iron ore mining lease committed to be in 'A', 'D' and 'E' Block of Kumaraswamy Deposit".
(ii) In Paragraph No.11, it is held that "The grant of mining lease in Ramanadurga Range to the petitioner is prior to the opening up of Kumaraswamy Range to the public which happened only in the year 2003".
(iii) In Paragraph No.12 it is stated that, "From the above facts, it becomes clear that as on the date of consideration of the application of respondent No.3, the application filed by the petitioner with regard to Kumaraswamy Range did not subsist for consideration".
According to petitioner's counsel these sentences are factually incorrect inasmuch as on 23/03/1999 or on 27/03/2000, there was no "grant" of mining lease in favour of the petitioner in Ramanadurga Deposit. It was contended that this Court was under an erroneous impression that the aforesaid mining lease had been granted in favour of the petitioner, which is factually incorrect and hence, there is an error apparent on the face of the record as this mis-impression in the mind of the Court had led to the conclusion that the petitioner did not have any locus standi to file the writ petition assailing the mining lease granted to Respondent No.3.
10. This argument is countered by the learned senior counsel appearing for third respondent by referring to the documents namely, letter dated 23/03/1999 and order dated 27/03/2000 to contend that the conclusion arrived at by this Court that, the request made by the petitioner for grant of mining lease in Block 'D' of Kumaraswamy Deposit, no longer subsisted since on that application, order dated 27/03/2000 had been issued by the State Government, is correct.
11. We have perused the document namely, Annexure "R-4", which is the proceedings of the Government of Karnataka leading up to the order dated 27/03/2000. In the preamble to that order, reference is made to letter dated 23/03/1999 written by Dr.S.K.Gupta, V.C. and M.D. of M/s.J.V.S.L., i.e., the petitioner - company and also to the meeting held on 23/12/1998 under the chairmanship of the Hon'ble Minister for Mines and Geology. The preamble reads as under:-
"PROCEEDINGS OF THE GOVERNMENT OF KARNATAKA Sub: Request of M/s. Jindal Vijayanagar Steel Limited for grant of Mining Lease for iron ore in Ramanadurga Deposit instead of Blocks 'A' 'D' and 'E' of Kumaraswamy Deposit, Bellary District-Issue of orders-regarding.
Read: 1) Letter No.VMPL/VJNR/98-99 dated 23.03.1999 of Dr.S.K.Gupta, VC and MD, JVSL.
2) Proceedings of the meeting held on 23.12.1999 under the Chairmanship of the Hon'ble Minister for Mines and Geology.
Earlier, Government had taken a decision regarding grant of captive iron ore mining lapses to several integrated steel plants in Bellary - Hospet Region. Accordingly, Government had committed to grant ML to M/s.Jindal Vijayanagar Steel Limited (JVSL) in Blocks A, D & E of Kumaraswamy Deposit; and any short fall to reach 1.20 MMT the same could be made good out of Thimmappanagudi reserves the lease of which is with Mysore Minerals Limited; and Jindal Vijayanagar Steel Limited could also manage Thimmappanagudi reserves in joint sector with MML as a minority partner.
Dr.S.K.Gupta, VC & MD, JVSL, in his letter dated 23.03.1999, read at (1) above, has stated that the corex plant is nearing completion and the company is likely to commission the same shortly and when once the corex plant is commissioned, the company would need substantial quantities of iron ore leases bearing 110 MMTs.
Further, he has stated that the company has already floated a Joint Venture with MML for the Thimmappanagudi reserves and mechanized operations are expected to Commence shortly from which approximately 1 to 1.2 MMTs of ore per annum may be available. As regards blocks A, D & E of Kumaraswamy Deposits, the company has been granted ML in Block B, and Blocks D and E are yet to be granted since the Government of India has not yet taken a final decision on the recommendations of the State Government in Clearing all pending Revision Applications over the area. In so far as Block 'A' is concerned; he has stated that this area does not contain any significant iron ore reserves which has also been confirmed by the Director of Mines and Geology and that even if Blocks D & E are granted. It would not be possible to exploit these reserves economically since these are small areas.
Therefore, Dr.Gupta has requested the Government to consider granting the balance requirement of iron ore leases (after taking into account approximately 40 MMT of reserve in Thimmappanagudi) in Ramanadurga which is free and reserved for state exploitation.
In the meeting held under the Chairmanship of Hon'ble Minister for mines & Geology on 23.12.1998, it was noted that NMDC had obtained stay on grant of fresh leases in Ramanadurga area and the same has been got vacated by the State Government. And it was also noted that Ramanadurga deposit had earlier been earmarked for M/s. Mukund Vijayanagar Steel Limited and M/s. Nagarjuna Projects. However, these have not yet been taken up for implementation and as per indications available, it is very unlikely that these projects will be taken up in the near future.
Therefore, having regard to the fact that JVSL will soon commence their iron making operations, it was decided in the meeting that mining lease for iron ore over an area with reserves of 70 MMTs in Ramanadurga Deposit could be granted to JVSL in lieu of iron ore leases committed to be granted in Blocks A, D and E of Kumaraswamy Deposits and though the ML would be granted in favour of JVSL at Ramanadurga area, the said lease would be operated through Joint Venture between JVSL and MML as per agreement already entered into between those two companies. It was also decided to grant iron ore ML over the balance area of Ramanadurga in favour of MML, a Government of Karnataka undertaking.
The request of M/s. JVSL has been examined by the Government in detail and the following orders are issued:-
GOVERNMENT ORDER NO.CI 262 NMM 93(P), BANGALORE, DATE: 27.03.2000.
In the circumstances, approval of Government is hereby accorded for the following:-
(a) to recommend grant of iron ore mining lease for 70 MMT in Ramanadurga Deposit in favour of M/s. Jindal Vijayanagar Steel Limited in lieu of the iron ore mining leases committed to be granted earlier in Blocks A, D & E of Kumaraswamy Deposit; and
(b) to recommend grant of iron ore mining lease over the balance area of Ramanadurga Deposit in favour of Mysore Minerals Limited, a Government of Karnataka undertaking."
BY ORDER AND IN THE NAME OF THE GOVERNMENT OF KARNATAKA SD/-
(M.VENKATANARASAPPA) Under Secretary to Government (Mines) Commerce & Industries Department.
(Underlining by us)
12. The aforesaid recommendation by way of an order was made at the instance of the petitioner. The effect of that order was that petitioner gave up its claim in Blocks "A", "D" and "E" of Kumaraswamy Deposit, as iron ore mining lease for 70 MMT in Ramanadurga was recommended in favour of the petitioner. By that order, the petitioner was no longer interested in its application for grant of mining lease in Blocks "A", "D" and "E" of Kumaraswamy Deposit and its application did not survive for consideration when Respondent No.3 was granted the mining lease. It is under those circumstances it was held that the petitioner had no locus standi to challenge the grant of 134 Acres of land in favour of third respondent in Kumaraswamy Range as its application for the grant of mining lease in the aforesaid area no longer survived for consideration, after the order dated 27/3/2000. Merely because in the above quoted sentence at para 10, it had been stated to the effect that mining lease for iron ore in Ramanadurga Deposit was "granted in favour of the petitioner" did not in any way detract from or dilute the reasoning of this Court on the question of locus standi of the petitioner to assail the grant of mining lease in favour of third respondent. Therefore, the reasoning of this Court on the issue of locus standi is correct and would not call for any interference in this review petition.
13. As far as the dismissal of the writ petition on the principle of delay and laches is concerned, the factual discussion is at Paragraphs 17 and 18 of the judgment under review. The writ petition was dismissed on the ground of delay and laches, having regard to the facts of the case. In the instant case, the mining lease was executed in favour of third respondent on 14/03/2006, which was preceded by several steps taken prior to that date, from the year 2003 onwards. But the writ petition was filed on 14/11/2007, nearly one year and nine months after the Notification dated 27/02/2006 granting mining lease in favour of third respondent. Petitioner was well aware of the aforesaid facts as the petitioner's top officer - the Joint Managing Director, Sri B.M.Singh, had inaugurated the very mining lease granted to third respondent. Despite having knowledge of grant of mining lease to third respondent, petitioner chose to assail the lease only in the year 2007, by which time, third respondent had made investments pursuant to the mining lease granted in his favour and therefore, the delay in assailing the mining lease granted to third respondent was not condoned. It was not a case where the grant of mining lease to third respondent was not in the knowledge of the petitioner as the mining lease was infact, inaugurated by the Joint Managing Director of the petitioner but the petitioner for reasons best known to it had not assailed it immediately and had sought to do it only after considerable investment was made by third respondent on the mining lease.
14. In this context, submission of the learned senior counsel was that when there was fraud while granting mining lease to third respondent, this Court ought to have condoned the short delay in filing the writ petition and heard the writ petition on merits. In this context, reliance was placed on the following decisions.
(a) In RAM PREETI YADAV -VS- U.P. BOARD OF HIGH SCHOOL AND INTERMEDIATE EDUCATION (2003) 8 Supreme Court Cases 311, it has been stated that once fraud is proved, it would deprive a person of all advantages or benefits obtained thereby; delay in detection or in taking action will raise no equities.
(b) In BHAURAO DAGDU PARALKAR -VS- STATE OF MAHARASHTRA AND OTHERS (2005) 7 Supreme Court Cases 605, it is has been observed that fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Fraud vitiates every solemn act. Fraud and justice never dwell together. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio.
15. It was further contended by learned senior counsel for the petitioner that in the instant case, the grant of mining lease to the respondent no.3 was fraudulent and therefore, the matter required a consideration on merits. In this regard, State of Assam and others -Vs- Om Prakash Mehta and others reported in AIR 1973 SUPREME COURT 678 and NOOKALA SETHARAMAIAH -VS- KOTAIAH NAIDU AND OTHERS reported in 1970(2) Supreme Court Cases 13 were also cited, which are in fact on the merits of the matter.
16. Also Bangalore Development Authority Vs- M/s. Vijaya Leasing Ltd (AIR 2013 SUPREME COURT 2417) was relied upon to contend that under Article 226 of the Constitution of India, the Court can reach injustice wherever found. In that case the petitioner therein, challenged the order cancelling de-notification of land from acquisition, but the earlier order de-notifying the land from acquisition has not been challenged. The Court found that the de-notification was done on wrong facts as to possession and that an order of injunction had been obtained by land owner with an ulterior motive. In that context, the Hon'ble Supreme Court set aside the order of de-notification although it was not challenged and thereby upheld the order cancelling the de-notification.
17. We do not think that the aforesaid decisions apply to the present case, as in the instant case, the petitioner had no locus standi to assail the grant of lease to the third respondent. If the petitioner's application for grant of the very same land for a mining lease was pending consideration on the date the land was granted to respondent No.3, then those contentions could have been considered. But the stark reality in this case is the fact that the petitioner had given up its claim for grant of the lease in respect of the land in question, which we have already noted from the aforesaid discussion. In the above premise, the petitioner had no right to assail the grant of mining lease to respondent No.3 on the ground of fraud or otherwise. Reliance placed on the aforesaid decisions is of no assistance to the petitioner. Therefore in the context of dismissal of the writ petition on delay and latches, petitioner cannot rely on principles of fraud in granting the mining lease to the Respondent No.3, as it did not have the locus standi to challenge the grant of mining lease to Respondent No.3. The petition filed by the petitioner is in the realm of private interest litigation and therefore, petitioner must have had locus standi to file such a petition before raising such pleas. Similarly the dismissal of the writ petition on the ground of suppression of material facts is just and proper. Moreover, the interim order of the learned single Judge in the writ petition which we have extracted, clearly portrays the conduct of the petitioner.
18. Learned senior counsel appearing for the respondent has relied upon the following decisions with regard to review of an order:
(a) In the case of PROMOTERS & BUILDERS ASSN. OF PUNE -VS- PUNE MUNICIPAL CORPN. AND OTHERS in (2007) 6 Supreme Court Cases 143, it has been reiterated that review of an order is not a routine procedure. It is not permissible, unless the court is satisfied that material error, manifest on the face of the order undermines its soundness or results in miscarriage of justice. A review of judgment in a case is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake like a grave error has crept in.
(b) In INDERCHAND JAIN (DEAD) THROUGH LRS. -VS- MOTILAL (DEAD) THROUGH LRS reported in (2009) 14 SCC 663, it has been opined that an application for a review would lie inter alia, when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. In paragraph - 7 of the judgment, the scope of review as has been stated in Order XLVII Rule 1 of the Code of Civil Procedure, has been reiterated. It has been observed that review is not an appeal in disguise. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered.
(c) In UNION OF INDIA
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-Vs- SANDUR MANGANESE AND IRON ORES LIMITED AND OTHERS reported in (2013) 8 Supreme Court Cases 337, the Hon'ble Supreme Court has enunciated on the notion of error apparent on the face of record and held that if an error is not germane or relevant to the dispute, then it is impermissible to re-agitate a decided issue. In that case, it was also held that although there was a misquoting of a report in the judgment, that did not give rise to a review. It was also opined that mere disagreement with the view of the judgment cannot be a ground for invoking review jurisdiction. As along as the point is already dealt with and answered, parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under review jurisdiction. Under such jurisdiction, the Court can interfere only when there is a glaring omission or patent mistake or when a grave error has crept in the impugned judgment. In that case, the Hon'ble Supreme Court dismissed the writ petition by deleting the misquoted lines. Meaning of review as stated in Order XLVII Rule 1 of the Code of Civil Procedure was also reiterated and the review petition was dismissed. 19. Applying the aforesaid decisions to the present case, we find that on the question of locus standi, delay and laches in filing the writ petition and dismissal of the writ petition on the ground of suppression of material facts were matters which were considered at length in the impugned judgment resulting in dismissal of the writ petition. If there were serious errors in the impugned order, then the petitioner ought to have pursued the matter before the Hon'ble Supreme Court rather than the SLP being withdrawn with liberty to file a review petition, as if, there were errors apparent on the face of the record. 20. We have already considered the observations which were pointed out in paragraphs 10, 11, 12 of the judgment under review by the learned senior counsel for the petitioner and we hold that the observations in those paragraphs have in no way affected the order passed in the writ petition. In fact, the error which according to the petitioner is "an error apparent on the face of the record" by the petitioner, has not had any bearing on the decision in the writ petition on preliminary objections. 21. Thus, the impugned order would not call for modification. The review petition is dismissed. We however refrain from imposing costs.