# FERRO ALLOYS CORPN. LTD. AND ANR v. UNION OF INDIA AND ORS

- **Citation:** [1999] 2 S.C.R. 49
- **Court:** Supreme Court of India
- **Decided:** 1999-03-22
- **Case number:** Civil Appeal No. 1626 of 1999
- **Bench:** S.B. Majmudar, A.P. Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ferro-alloys-corpn-ltd-and-anr-v-union-of-india-and-ors-16669
- **Pages:** 40

## Headnote

Constitution of India Article 226 rl'f ,Evidence .jct. 1872, s. 115Waiver and estoppel-Central Government granting T/SCO renewal of lease
B
for mining chromite over an area smaller than original lease-T/SCO
challenging decision by a writ petition in the High Court-Appellant, a rival C
claimant, being made respondent-High Court directing reconsideration of
matter by Central Government-Supreme Court permiting Central Government
to dispose of matter during pendency of TISCO's SLP-Central Government
on basis of report of High Power Expert Coommitte constituted by it issuing
order granting lease to TISCO for reduced area as .well as to Appellant and D
other claimants-Central Government's order upheld by Supreme Court and
TISCO 's appeal dismissed-Appellant making representation to State
Government against Central Government's order and claiming lease for entire
area-State Government recommending to Central Government grant of lease
to appellant to extent of 50% of total requirements as assessed by CommitteeAppellant challenging orders of Central and State Governments-Writ petition E
dismissed by High Court as not maintainable on ground of res judicata and
on merits-Whether appellant's writ petition barred on grounds of waiver,
estoppel and acquiescence-Held, yes; after inviting Supreme Court to confirm
order of Central Government appellant could not subsequently oppose the
very same order; further held, appellant waived objection to and acquiesced
in the order of the Central Government assessing it-Requirements.
F
Res Judicata-Constructive res judicata-whether on facts Appellant's
writ petition challenging orders of Central and State government not
maintainable on ground of res judicata or constructive res judicata-Held,
no; issue raised by appellant not expressly adjudicated and no final decision G
thereon inter se the parties in earlier proceedings in the Supreme Court;
further held, question of assessment of appellant's entitlement had nothing to
do with relief granted to TISCO in earlier proceedings-Code of Civil
Procedure 1908, s.11-Constitution of India, Article 226.
Constitution of India, Article I 36-Practice and Procedure-Appellant H ·
49
50
SUPREME COURT REPORTS
[1999) 2 S.C.R.
A inviting Supreme Court in earlier proceedings to confirm order of Central
government determining its entitlement to mining area-Appellant's
subsequent writ petition challenging Central Government's order dismissed
by High Court as being not maintainable on ground of res judicata-Supreme
Court finding writ petition not barred by res judicata or constructive res
judicata-Whether proceeding required to be remanded to High Court for
B fresh decision-Held, no-Appellant by its own conduct was disentitled to
get a fresh decision on the point from any court
Mines and Minerals (Regulation and Development) Act 1957, s.8(3)
r/w Mineral Concession Rules, 1960-Central government making order
C assessing appellant's requirement for mining chromite-State government
subsequently revising appellant's need downwards by half and reserving the
remaining half for consideration of claims of other parties-Whether order
of state government in conflict with order of Central Government-Held, no
Order of Central Government binding on appellant.
D
In 1973 the State ofOrissa 'State' granted Tata Iron and Steel Co. Ltd.
(TISCO) renewal of lease for mining of chromite over an area of 1261.476
hectares in Sukinda Valley. Prior to expiry of the lease on October 3, 1991;
TISCO applied for a second renewal of the mining lease. On the State's
recommendation, the Central Government conveyed its approval of the said
E second renewal for the entire area for 10 years. Thereafter, the Central
Government reviewed its order and approved the grant of renewal of lease
to only half the area, i.e. 650 hectares.
The order of the Central Government was challenged by TISCO before
the. Orissa High Court in a writ petition to which the rival claimants,
F including the appellant, were party respon

## Text

_Characters 0–39,997 of 106,165. This is a partial read: ask again with offset=39997 for what follows._

FERRO ALLOYS CORPN. LTD. AND ANR.
v.
UNION OF INDIA AND ORS.
MARCH 22, 1999
[S.B. MAJMUDAR AND A.P. MISRA, JJ.]
Constitution of India Article 226 rl'f ,Evidence .jct. 1872, s. 115Waiver and estoppel-Central Government granting T/SCO renewal of lease
B
for mining chromite over an area smaller than original lease-T/SCO
challenging decision by a writ petition in the High Court-Appellant, a rival C
claimant, being made respondent-High Court directing reconsideration of
matter by Central Government-Supreme Court permiting Central Government
to dispose of matter during pendency of TISCO's SLP-Central Government
on basis of report of High Power Expert Coommitte constituted by it issuing
order granting lease to TISCO for reduced area as .well as to Appellant and D
other claimants-Central Government's order upheld by Supreme Court and
TISCO 's appeal dismissed-Appellant making representation to State
Government against Central Government's order and claiming lease for entire
area-State Government recommending to Central Government grant of lease
to appellant to extent of 50% of total requirements as assessed by CommitteeAppellant challenging orders of Central and State Governments-Writ petition E
dismissed by High Court as not maintainable on ground of res judicata and
on merits-Whether appellant's writ petition barred on grounds of waiver,
estoppel and acquiescence-Held, yes; after inviting Supreme Court to confirm
order of Central Government appellant could not subsequently oppose the
very same order; further held, appellant waived objection to and acquiesced
in the order of the Central Government assessing it-Requirements.
F
Res Judicata-Constructive res judicata-whether on facts Appellant's
writ petition challenging orders of Central and State government not
maintainable on ground of res judicata or constructive res judicata-Held,
no; issue raised by appellant not expressly adjudicated and no final decision G
thereon inter se the parties in earlier proceedings in the Supreme Court;
further held, question of assessment of appellant's entitlement had nothing to
do with relief granted to TISCO in earlier proceedings-Code of Civil
Procedure 1908, s.11-Constitution of India, Article 226.
Constitution of India, Article I 36-Practice and Procedure-Appellant H ·
49
50
SUPREME COURT REPORTS
[1999) 2 S.C.R.
A inviting Supreme Court in earlier proceedings to confirm order of Central
government determining its entitlement to mining area-Appellant's
subsequent writ petition challenging Central Government's order dismissed
by High Court as being not maintainable on ground of res judicata-Supreme
Court finding writ petition not barred by res judicata or constructive res
judicata-Whether proceeding required to be remanded to High Court for
B fresh decision-Held, no-Appellant by its own conduct was disentitled to
get a fresh decision on the point from any court
Mines and Minerals (Regulation and Development) Act 1957, s.8(3)
r/w Mineral Concession Rules, 1960-Central government making order
C assessing appellant's requirement for mining chromite-State government
subsequently revising appellant's need downwards by half and reserving the
remaining half for consideration of claims of other parties-Whether order
of state government in conflict with order of Central Government-Held, no
Order of Central Government binding on appellant.
D
In 1973 the State ofOrissa 'State' granted Tata Iron and Steel Co. Ltd.
(TISCO) renewal of lease for mining of chromite over an area of 1261.476
hectares in Sukinda Valley. Prior to expiry of the lease on October 3, 1991;
TISCO applied for a second renewal of the mining lease. On the State's
recommendation, the Central Government conveyed its approval of the said
E second renewal for the entire area for 10 years. Thereafter, the Central
Government reviewed its order and approved the grant of renewal of lease
to only half the area, i.e. 650 hectares.
The order of the Central Government was challenged by TISCO before
the. Orissa High Court in a writ petition to which the rival claimants,
F including the appellant, were party respondents. The High Court took the
view that the entire matter was required to be reconsidered by the Central
Government. Against the High Court's order, TISCO filed a special leave
petition in this court. By an interim direction, this court clarified that the
pendency of the special leave petition would not stand in the way of the
G Central Government disposing the matter in accordance with law. The
appellant made a representation to the Central Government staking its claim
for being_granted mining lease for the entire area of 1261.476 hectares.
On the basis of the report of High Power Expert Committee ('Sharma
Committee') appointed by it, the Central Government by order dated August
H 17, 1995 requested the State to issue orders granting subsequent renewal
'
-
FERRO ALLOYS CORPN. LTD. v. U .0 .I.
51
of mining lease for chrome ore in favour of TISCO for 406 hectares for a A
period of20 years and further grant mining lease to the other four applicants,
including the appellant over the balance area of 855.476 hectares on the
basis of proportionate requirements of the chrome ore for these parties as
asse.ssed by the Sharma Committee.
By its decision in Tata Iron & Steel Co. Ltd v. Union of India, (1996) B
9 sec 709 this court, after hearing all parties including the appellant,
upheld the findings of the Sharma Committee and the consequential order
of the Central Government dated August 17, 1995. It accordingly dismissed
the appeal filed by TISCO.
c
In the meanwhile, the appellant being dissatisfied with the order of the
Central Government dated August 17, 1995 made a representation to the
State on May 26, 1996 spelling out its own requirement of chrome ore
which, according to it, was not correctly assessed by Sharma Committee and
which assessment was accepted by the Central Government. On June 29,
1997 the State recommended to the Central Government for granting leases D
to the four claimants, including the appellant to the extent of 50% of their
respective requirements as assessed by the Sharma Committee. The
remaining 50% of the area was to be thrown open for consideration of
claims of other claimants.
E
The appellant filed a writ petition in the High Court challenging the
-
order dated June 29, 1997 of the State and the earlier order dated August
17, 1995 of the Central Government. The High Court dismissed the writ
petition on the ground that it was barred by resjudicata. lt upheld the orders
of the State and the Central Government on merits.
Before this court, the appellant contended that its writ petition was not
barred on the principles of either res judicata or constructive res judicata
F
as there was no express decision in the earlier proceedings on the appellant's
.entitlement. Also, there was no occasion for the appellant to make a grievance
regarding upward revision of assessment of its needs as the court was G
concerned only with TISCO's claim.
Dismissing the appeal, this Court
HELD : 1.1. The appellant's present grievance was barred on the
ground of estoppel, waiver and acquiescence. [85-F]
H
52
SUPREME COURT REPORTS
[1999) 2 S.C.R.
A
1.2. The appellant would be liable to be non-suited on the ground of
estoppel. Not only was the order of the Central Government supported by the
appellant before this Court, but it became successful in getting it confirmed
by this Court and thereafter the said decision was acted upon by all the
contesting Respondents. Hence, it was too late for the appellant to turn round
and try to get out of the order of this Court. The appellant was bound by the
B assessment of its need as approved by the expert committee and accepted by
the Central Government and which assessment was got approved by the
·I
appellant itself as supporting Respondent before this Court. [76-G; 77-G-H)
Tata Iron & Steel Co. Ltd. v. Union of India, [1996] 9 SCC 709,
C followed.
1.3. The appellant had deliberately waived its challenge to the order
of the Central Government dated August 17, 1995 in so far as it had upheld
the assessment of its need for chrome ore and for grant of appropriate
mining lease on that basis. It acquiesced in the said assessment. Before this
D Court the appellant was interested in getting the order of the Central
Government wholly confirmed. It never raised any dispute inter se among the /
other Respondents who were the present contesting Respondents or even
against the Central Government which was also a party to the proceedings
before this Court. It was, therefore, too late for the appellant to subsequently
turn round and try to go behind the said order. [76-C-D, F]
E
House of Spring Gardens Ltd. v. Waite, (1990) 2 All ER 990, referred
to.
1.4. Once the assessment of rival needs of parties seeking mining
lease from the very same area in Sukinda Valley was done by the expert
F committee and was approved not only by the Central Government but also by"
this Court, the dispute inter se was sought to be put to an end on the principle
of equitable distribution of such a rare and costly mineral. This package
evolved by this Court must be held to be binding on all the contesting parties.
This conclusion was an additional ground on which the appellant would not
G be entitled to get any relief under Article 136 of the Constitution of India.
[80-H; 81-A-C)
Indian Metals Ferro Ltd. v. Union of India, [1992) Suppl. 1 SCC 191,
referred to.
H
2.1. The writ petition was not barred by res judicata. Whatever
FERRO ALLOYS CORPN. LTD. v. U.O.l.
53
observation might have been made by this Court could not be said to be an A
express decision on the vexed question as to whether the assessment of the
need for chrome ore, so far as the appellant was concerned, as approved by
the Sharma Committee and accepted by the Central Government, involved
any error or not or whether it was required to be re-assessed for upward
revision. Such an issue was not expressly adjudicated upon by this Court in B
the aforesaid decision and the findings thereon, therefore, could be made the
subject matter of fresh proceedings between the parties. Not only the
contesting parties were not heard on this issue but also there was no final
decision thereon inter se these parties. [68-F-H; 69-A]
2.2. The appellant's grievance in the present proceedings was also not C
barred on the ground of constructive res judicata. The condition for attracting
the bar of constructive res judicature against the appellant was not satisfied.
The grievance of the appellant in the present proceedings regarding the
alleged error in the assessment of its requirement for chrome ore and the
question whether such assessment was required to be revised upwards,
which may be relevant for deciding the appellant's independent claim against D
the Central Government as well as the State of Orissa and also vis-a-vis
other contending claimants had nothing to do with the question of granting
relief to TISCO in the earlier proceedings. [72-D-E]
lftikhar Ahmed v. Syed Meharban Ali AIR, (1974) SC 749, referred to. E
3. No useful purpose would be served in remanding the proceedings
for a fresh decision of the High Court. The appellant by its own conduct had
disentitled itself from getting any fresh decision from any court on its
grievance regarding the alleged error in assessment of its need by the
expert committee. (87-E]
F
4. The order of the State government slicing down by 50% the need
of the appellant as assessed was not in conflict with the order of the Central
Government dated August 17, 1995. It would be binding on the appellant and
other contesting respondents. [88-A-B]
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1626 of
1999.
From the Judgment and Order dated 31.8.98 of the Orissa High Court
in O.J.C. No. 12032 of 1997.
/
H
54
SUPREME COURT REPORTS
[1999] 2 S.C.R.
I
A
C.S. Vaidyanathan, Additional Solicitor General, F.S. Nariman, I.M. Chagla,
Dipankar Gupta, Shanti Bhushan, P.N. Mishra, Ashok H. Desai, Ashok Parija,
Subhash Sharma, Ramesh Singh, Praveen Kumar, Ms. Anuradha Dutt, Ms.
Vijaya laksmi Menon, Gautum Mitra, Rajiv Lal, Mrs. Indra Sawhney, Jayant
Bhusan, Ashok K. Srivastava, D.S. Mehra, R.S. Jena, S. Misra, Abhisth
B Kumar, R. Patnaik, K.K. Lahiri, Ejaz Maqbool, B.K. Mishra and Gaurav Kumar
for the appearing parties.
The Judgment of the Court was delivered by
S.B. MAJMUDAR, J. Leave granted.
c
We have heard learned counsel for the parties finally in this appeal and
accordingly, this appeal is being disposed of by this judgment. The short
. question requiring a long answer in this appeal is whether the writ petition
filed by the appellant Corporation before the Orissa High Court was
maintainable. The High Court in the impugned judgment has taken the view
D that it was not maintainable being barred by the principle of res judicata. In
order to appreciate the grievance of the appellant against the impugned
judgment, it is necessary to note a few relevant introductory facts.
E
INTRODUCTORY FACTS:
The appellant put forward its claim for grant of mining lease for extracting
an important mineral - chromite in Sukinda Valley situated in the State of
Orissa. The State of Orissa is having substantial reserves of the aforesaid
mineral. Originally, Tata Iron & Steel Co. Ltd. (for short 'TISCO') was granted
mining lease for 50 square kilometres of area in Sukinda Valley by order of
F the Collector, Cuttack sometime in September, 1952. Originally, mining lease
over 1813 hectares of area was granted to TISCO for chromite extraction after
preliminary exploration for a period of20 years on 12.1.1953. After the Orissa
Estates Abolition Act, 1951 (for short the 'O.E.A Act') came into force, the
rights of erstwhile Zamindar (Raja of Sukinda) were vested in the State which
G granted the lease to TISCO. In 1973, renewal was granted for an area of
1261.476 hectares subject to the condition that TISCO will establish a
beneficiating plant as to the friable and lean ore in the leasehold area for the
purpose of improving the quality for use in the indigenous plants, namely,
Ferro-Chrome and Refractories. Before the aforesaid lease could expire by
efflux of time on 3rd October, I 991 TISCO applied to the State authorities for
H second renewal of the mining lease for 20 more years under Section 8(3) of
/
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.B. MAJMUDAR, J.]
55
the Mines and Minerals (Regulation and Development) Act, 1957 (for short A
the 'MMRD Act'). The State Government of Orissa recommended to the
Central Govt. for approval of the said second renewal for the entire area in
which TISCO was having earlier lease. The aforesaid recommendation was
made in compliance with the requirement prescribed under the MMRD Act
read with Mineral Concession Rules, 1960 (for short 'the Rules'). It may be B
noted that the said recommendation was for re-grant of mining lease for I 0
years to TISCO for the entire area of 126i.476 hectares though the demand
of TISCO for second renewal of this lease was for 20 years. It was suggested
by the State Govt. to grant lease for a period of l 0 years with effect from
12.1.1993 subject to certain conditions mentioned in the recommendatory
letter. On 3rd June, 1993, the Government of India with reference to the C
recommendation of the State Government dated 28.11.1992 conveyed its
approval under Section 8(3) in relaxation of Section 6{l)(b) of the MMRD Act.
On 11.6.1993, a Member of Parliament complained to the Ministry that during
the last fifty years, TISCO had not done much for the industrialisation of the
State of Orissa and the mining areas granted to it were hardly exploited for
more than three decades. He indicated that renewal of lease of the entire D ·
chromite mining area in favour of TISCO once again would not be in the
interest of development of the State and also would not be in national
interest. The matter was looked into by the Central Govt. afresh. It reviewed
its earlier order of 3rd June, 1993 and granted approval for renewal of lease
to TISCO confining it to only half the area i.e. 650 hectares. The said order E
dated 5.10.1993 further directed that rest of the area of approximately 600
hectares be deleted from the existing lease of TISCO and made available to
other industries by the State Government as per the MMRD Act and Mineral
Concession Rules, 1960 in the interest of mineral and industrial development
in the country. The aforesaid order of the Central Government was challenged
by TISCO before the Orissa High Court in Writ Petition OJC No. 7729/93 filed F
on 19.10.1993. The rival claimants, Jindal Strips Limited and Jindal Ferro
Alloys Limited, Respondent Nos. 3 and 4 respectively herein, filed a cross
petition being OJC No.7054/94 in the Orissa High Court praying for a suitable
writ or order directing the authorities concerned not to grant renewal of lease
to TISCO. It may be mentioned that in the aforesaid writ petition of TISCO, G
the present appellant M/s. Ferro Alloys Corporation Ltd. (for short 'F ACOR')
was made a party Respondent on its request for intervention. Indian Charge
Chrome Limited (for short 'ICCL') and Indian Metals Ferro Alloys Limited (for
short 'IMFA') Respondent Nos. 5 and 6 respectively herein, in their turn also
filed Writ Petition OJC No.5422/94 in the Orissa High Court opposing the
grant of renewal of mining lease to TISCO. The present Respondent No. 7 H
56
SUPREME COURT REPORTS
[1999) 2 s.e.R.
A Mis. Ispat Alloys (for short 'ISPAT') had not filed any Writ Petition in the
Orissa High Court though it is also a claimant for mining lease for the very
same mineral.
The High Court of Orissa, after hearing the parties concerned in the writ
B petitions, by its order and judgment dated 4.4.1995, took the view that the
entire matter was required to be re- considered by the Central Government.
It held that the order dated 3rd June, 1993 of the Central Government granting
approval for renewal of lease to TISCO for the entire area and the subsequent
order dated 5th October, 1993 could not be sustained in law. The matter had
got to be reconsidered by the Central Government as to the proposal of
C subsequent renewal of the lease of TISCO and 11s to whether the Central
Government would authorise renewal of such lease by forming an opinion in
the interest of mineral development. The High court did not observe anything
as to the merit ofTISCO's claim for subsequent renewal of the lease. Regarding
locus standi of the other writ petitioners before the High court whose writ
D petitions were being disposed of by the aforesaid common judgment, it was
observed that their apprehension was without justification and their interest
was of contingent nature and that in the event the Central Government found
it not prudent to authorise subsequent renewal of TISCO's iease, the area
eventually would be available and the State Government of Orissa would take
E steps for making necessary advertisements and inviting applications for grant
of mining lease. It was also suggested that the other petitioners were opposing
renewal of TISCO's lease and hence they deserved to be given hearing by
the Central Government by way of fair play and in compliance with the
principle of natural justice and to enable them to place necessary record for
F consideration by the Central Government. The applications of employees of
TISCO as intervenors were found to have no merit and were rejected.
G
Against the aforesaid order of the High Court, TISCO filed special leave
petition in this Court being SLP {C) No. I 0830/95, other cognate SLPs arising
out of the common order of the High Court on 10th May, 1995 were also filed.
By an interim direction, this Court clarified in TISCO's SLPs that the pendency
of the proceedings in the special leave petitions would not stand in the way
of the Central Government in disposing the matter in accordance with law. In'· ·
the meantime, on 3rd May,1995 appellant FACOR made a representation to the
Central Government staking its claim for being granted mining lease for the
H entire area of 1261.476 hectares.
·---
-
FERRO ALLOYS CORPN. LTD. v. U.0.I. [S.B. MAJMUDAR, J.]
57
The Central Government in its tum and in compliance with the decision .· A
of the High Court and as a follow up action appointed a High Power Expert
Committee under the Chairmanship of Shri S.D. Sharma, Joint Secretary in the
Ministry of Mines, to consider the submissions filed before the Centr~l
Government by parties in the High Court proceedings in pursuance of the
directions of the High Court of Orissa in its Judgment dated 4.4.95. The B
Committee was directed to submit its report to the Government within two
weeks from the date of the order of the Central Government i.e. 24th May
1995. The Committee was also required to give a personal hearing to all the
parties concerned as stipulated in the judgment of the Orissa High court. The
aforesaid expert committee known as 'Sharma Committee', after hearing the
parties concerned gave a detailed report on 16th August, 1995. As per the C
said report second renewal of TISCO's lease was recommended for a smaller
area, namely, 406 hectares. The Sharma Committee also gave personal hearing
to other claimants for mining lease in the area and who were opposing renewal
of lease claimed by TISCO. The Sharma Committee after hearing them assessed
the needs of these rival claimants and came to its own estimates regarding
the requirements of these rival claimants. The Committee made it clear that it D
was not undertaking the task of granting any lease to any of these rival
claimants in connection with the remaining area which might become available
after reducing the occupied mining lease area with TISCO. In other words,
after confirming TISCO's renewal of lease of 406 hectares, the balance of 855 ·
hectares land which was to be available with the State of Orissa for granting E
mining leases to other claimants had to be processed by the State authorities
in accordance with law. The Sharma Committee, however, in the light of the
claims put forward by rival claimants before it and the data submitted by them
in support of their respective cases for allotment of leases in their favour,
made the assessment of their requirements as noted earlier.
F
In· the light of the aforesaid report of Sharma Committee, the Central
Government by its detailed order dated 17th August, 1995 requested the State
Government of Orissa to take necessary steps to issue ~rders granting
subsequent renewal of mining lease for chrome ore in favour of TISCO for
406 hectares for a period of 20 years over a compact and contiguous area.
It was also directed that the State of Orissa should take further action on the G
mining lease applications of other 4 applicants other than TISCO, i.e., (1)
Jindal Strips Limited/Jindal Ferro Alloys Limited, (2) the present appellant
FACOR (3) ICCL/IMFA and (4) Ispat Alloys Limited. These other claimants
are Respondents 3, 4, 5, 6 and 7 respectively in this appeal. In the said order
the Central Government further directed the State Government of Orissa to H
58
SUPREME COURT REPORTS
[1999] 2 S.C.R.
A grant_ mining lease to the aforesaid four applicants as per law over the balance·
area of855.476 hectares to be released by TISCO, on the basis of proportionate
requirements of the chrome ore for these parties as assessed by the committee,
in a fair, just, equitable and contiguous manner in consultation with Indian
Bureau of Mines within a period of 30 days from the date of issue of the order
B of the Central Government. The State Government was also directed by the
Central Government to seek its approval for grant of mining leases as per the
provisions of the MMRD Act and the Rules. It was also observed that since
the other four parties were in dire necessity of the raw material (chrome ore)·
and had set up mineral based industries and were suffering for want of
chrome ore, the Central Government in conformity with the observations of
C the High Court of Orissa in its Judgment dated 4.4.1995 and in exercise of
powers conferred by sub rule (1) of the said Rule 59 relaxed the provisions
of sub rule (I) of Rule 59 with a view to expedite the process for.making
available the raw material, namely, chrome ore, to the needy industries in the
interest of the mineral development. The requirements of chrome ore of these
D 4 parties, besides TISCO, which appeared before the committee, as· .finally
accepted by the Central Government were listed as Annexure I to Appendix
A of the aforesaid order of the Central Government. In the said order it was
also stated for information of the State Government that in the pending SLP
filed by TISCO in the Supreme Court against the High Court Judgment, the
Supreme Court on 17th July, 1995 had granted six weeks time to the Government
E to pass appropriate orders and the matter was to be listed after 8 weeks. The
aforesaid order of the Central Government which was partly in favour of .
TISCO and partly in favour of the present appellant as well as the aforesaid
contesting Respondents 3 to 7 was also produced before this Court in the
pending SLPs.of TISCO and Industrial Development Corporation of Orissa
F
Ltd. (for short 'IDCOL'). The present appellant and Respondents 3 to 7 in this
appeal were also party Respondents to the said proceedings before this
Court. In addition to these contesting Respondents, the State of Orissa and
the Union of India were also party Respondents. After hearing the contesting
parties in their respective cases, relevant points for determination were framed
G by this Court after granting leave to appeal in the SLPs and by its decision
in the case of Tata Iron & Steel Co. Ltd v. Union of India And Another,
[1996] 9 SCC 709, a Bench of two learned Judges, speaking through A.M.
Ahmadi, CJ, after considering the main grievance of the respective contesting
parties, upheld the findings reached by the Sharma Committee and the
consequential order of the Central Government dated 17th August, 1995. It
H accordingly dismissed the appeals filed by TISCO and IDCOL. As we have
-
--
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.B. MAJMUDAR, J.]
59
I
noted, the impugned order of the Central Government dated 17th August, A
1995 which in its tum was an off-shoot of Sharma Committee's report had
directed the State of Orissa to grant mining leases to four applicants other
than TISCO in the remaining area of 855.476 hectares of land. The appellant
herein was one of those four applicants found eligible for being granted lease
for extracting chromium. However, the Central Government had observed that B
so far as the appellant's requirement of chrome ore was concerned, it had
accepted the assessment of the Sharma Committee to the extent of 6.40 metric
tones for the first 20 years of lease and for the remaining 30 years its
requirement of chrome ore was assessed at 14.13 metric tones, totalling to
20.53 metric tones in all. For Respondent Nos. 3 to 7, different assessments
of the requirement of chrome ore as made by the Sharma Committee were C
accepted by the Central Government in its order dated 17th August, 1995.
That order got confirmed by this court in the aforesaid decision in TISCO's
case (Supra).
In the meanwhile, the appellant being dissatisfied with the aforesaid D
order of the Central Government dated 17th August, 1995 made a detailed
representation to the State Government on 26th May, 1996 spelling out its
own requirement of chrome ore which, according to it, was not correctly
assessed by Sharma Committee and which assessment was accepted by the
Central Government. The said representation was forwarded by the State
Government to the Central Government on 12th June, 1997. The appellant's E
representation reiterated its claim for grant of mining lease for chrome ore over
the entire area of 1261.476 hectares in Sukinda Valley as earlier applied for on
19.10.93. However, subsequently on 29th June, 1997 the State Government of
Orissa recommended to the Central Government for granting leases to four
claimants, namely, IMF AIICCL, Jindals, Ispat and F ACOR over 500Ai of the left F
over area totally admeasuring 855.476 hectares on the basis of 50% of their
respective requirements as assessed by the Sharma Committee, the remaining
50% of the balance area out of 855.476 hectares was sought to be thrown
open for consideration of claims of other claimants for such mining leases
along with ·aforesaid four claimants to the extent their requirements were not G
fully met by reduction of their estimated requirements by 50% as per the said
recommendation of the State Government.
Being aggrieved by the aforesaid order of the State Government dated
29th June, I 997 and the earlier order of the Central Government dated 17th
August, 1995 the appellant filed a fresh Writ Petition being OJC No.12032/97 H
60
SUPREME COURT REPORTS
(1999] 2 S.C.R.
A in the Orissa High Court out of which the present appeal arises.
The High Court after hearing the parties concerned, took the view that
the writ petition filed by the appellant after the decision rendered by this
Court in TISCO's case (supra) challenging the very same order of the Central
Government dated 17th August, 1995 which was confirmed by this Court in
B the aforesaid decision was not maintainable on the ground of res judicata.
It was also held that the order of the Central Govt. dated 17th August, 1995
was legally justified and the subsequent order of the State Government dated
29th June, 1997 could also not be said to be suffering from non-application
of mind and the decision making process of the State Government was not
C suffering from any infirmity. As seen earlier, this order of the High Court is
the subject-matter of the present appeal moved by the dissatisfied writ
petitioner F ACOR.
RIVAL CONTENTIONS:
D
Learned Senior Counsel, Shri F.S. Nariman for the appellant, vehemently
contended that the High Court had patently erred in law in dismissing the writ
'
petition as barred by res judicata. He took us to the relevant ple,adings of
the parties, the judgment of this Court jn TISCO's case (supra) and also relied ·
upon the relevant documents for submitting that in TISCO's appeal there was
E no occasion for the appellant to raise the inter se dispute between the
contesting Respondents nor has the Court adjudicated upon the present
grievance of the appellant that assessment of its need by the Sharma Committee
as accepted by the Central Government was erroneous and an under-estimate.
That there was no express decision of this Court on this aspect nor was the
appellant required to put forward this contention earlier. Hence, neither res
F judicata nor constructive res judicata would apply to the facts of the present
case. He alternatively submitted that, in any case, the High Court could have
held that the present grievance was prematu~e as the appellant's earlier
application for grant of mining lease which was dismissed as premature by
the State Government was pending scrutiny in revision before the Central
G Government and hence, this issue could have been kept open.
Learned senior counsel Shri Shanti Bhushan, appearing for Respondent
nos. 3 and 4, on the other hand, submitted that the appellant itself invited the
Sharma Committee to asse;>s its needs for chrome ore and also invited the
Central Government not only to. accept the said assessment but also to
H exercise powers under Rule 59 sub-rule (2) for dispensing with the procedure
r'
I I
~
.,_, ..-
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.B. MAJMUDAR, J.]
61
under Rule 59, sub- rule (1) of the Rules. That when the question of legality A
. of the order of the Central Government was being considered by this Court
·-in ·TISCO's appeal the appellant as Respondent therein did not think it fit to
challenge the assessment of its need by the Committee as accepted by the
Central Government. Thus, at least on the principle of constructive res judicata,
if not actual res judicata, the appellant's present grievance is barred. It is also B
barred on the principle of estoppel and acquiescence. Shri Shanti Bhushan,
in this connection, invited our attention to relevant provisions of MMRD Act
and submitted that the Central Government's order was perfectly justified and
binding on all parties especially when it was wholly approved by this Court.
Shri Vaidyanathan, learned Addi. Solicitor General, appearing for C
Respondent No. I - Union of India, submitted that the Sharma Committee was
appointed by the Central Government in the light of the directions issued by
the High Court in TISCO's writ petition. That the Central Government's order
of 17th August, 1995 was merely recommendatory in nature and it was for the
State Government to pass appropriate orders. He, however, submitted that the
Central Government would request this Court to issue appropriate directions · D
in the light of the earlier decision of the Central Government laying down the
scope and ambit thereof.
Learned counsel for Respondent no.2 - State of Orissa, conteQded that
the order of the Central Government dated 17th August, 1995, as confirmed E
by this Court, left it to the State Government to pass appropriate orders
regarding grant of lease to rival claimants. That th€'. State Government in
exercise of its own independent jurisdiction under the Act had passed its
order dated 29th June, 1997 which was not challenged by any of the parties
before this Court and hence must be held to be binding on all parties and
consequently, the appellant's writ petition was rightl~ dismissed by the High f _.
Court.
Ms. Indra Jaisingh, appearing for Respondent no.5, in her tum, submitted
that the appellant's writ petition was clearly barred by res judicata or
constructive res judicata and, in any case, it was barred by delay, laches and G
acquiescence as well as on the ground of estoppel. That the appellant itself
invited the Sharma Committee to assess its needs of chrome ore. After it
was so assessed, the Central Government passed the order of 17th August,
1995. Even that order was wholly supported by the appellant before this Court.
in TISCO's and IDCOL's appeals. It sat on the fence at that stage. Even after
the arguments in the appeal were over in October, 1995 and when the matter H
62
SUPREME COURT REPORTS
(1999] 2 S.C.R.
A was awaiting judgment, the appellant filed writ petition in the High Court
challenging the order of Central Government. It did not think it fit to get that
petition transferred to this court nor got any clarification from this court for
preserving its right to challenge the assessment of its needs by separate
' proceedings. It is, therefore, now too late in the day for the appellant to raise
B this contention by separate proceedings. In fact, the appellant is estopped
from its own conduct from doing so, as all other Respondents have changed
their position and have acted upon the Central Government's order by treating
the assessment of relative needs of rival claimants by the Central Government
to be correct and binding on all rival claimants.
C
Shri Chidambaram, learned senior counsel for Respondent no.6, broadly
adopted the aforesaid arguments and further contended that the entire cake
of 1261.476 hectares ofland in Sukinda Valley was sought to be claimed by
rival claimants. In TISCO's appeal, the rival claimants were TISCO on the one
hand, and the present appellant and Respondent nos.3 to 7, on the other.
Once this court restricted TISCO's claim on the basis of its need for chrome
D ore, necessarily implied therein was the f"mding of this Court that the . -:
assessment of needs of other claimants like the appellant and other
Respondents was rightly done by the Central Government on the basis of the
report of the Sharma Committee. Hence, the issue about proper assessment
of appellan.fs need was not only res judicata but even on the ground of
E constructive res judicata and also on the ground that the appellant cannot
blow hot and cold subsequently, the appellanrs writ petition was rightly
dismissed by the High Court. Our attention was invited to a decision of an
English Court to which we will make a reference hereafter. Shri Chidambaram
also placed reliance on Order 41 Rule 22 CPC in support of his contention.
'\,.
F
Learned senior counsel, Shri Gupta for Respondent no.7, also adopted
the arguments of learned senior counsel appearing for contesting Respondents
2 to 6 and submitted that equitable distribution of a scarce mineral like chrome
ore has to be done. This principle is also settled by this Court in the case
of Indian Metals Ferro Ltd. v. Union of India, (1992) Suppl.I SCC 191. On
G the basis of this principle, the High Court rendered its decision earlier in
TISCO's writ petition which was followed by the Central Government by
appointing the Sharma Committee and the Sharma Committee's
recommendations were accepted by the Central Government by its order
dated 17th August, 1995. Thus, the entire exercise Qf equitable distribution·
of this rare and costly mineriil in Sukinda Valley was completed by the Central
H Government and was approved by this Court. Any tinkering with the same,
-
,
--
--
--
FERRO ALLOYS CORPN. LTD. v. U.0.1. [S.B. MAJMUDAR, J.]
63
therefore, cannot be permitted to any of the Respondents and accordingly, A
the appellant's present proceedings were clearly misconceived and amounted
to going behind the order of the Central Government as confirmed by this
Court.
Learned senior counsel Shri Desai, in support of I.A. I of 1999 submitted
that the order of the State Government dated 29th June, 1997 which was B
upheld by the High Court in the impugned judgment is correct and requires
no interference. That the present appellant or even contesting Respondents
have also not thought it fit to challenge the same and consequently, the State
of Orissa should proceed in the light of the said order on the principle of live
and let live. It becomes at once clear that Mr. Desai's grievance in the C
Intervention Application would not survive if the State Government's order
dated 29th June, 1997 is upheld.
Shri Nariman, learned senior counsel for the appellant, in Rejoinder
submitted that neither the bar of express res judicata nor constructive res
judicata can be pressed in service against the appellant. That at the stage of D
TISCO's appeal before this Court no occasion arose for the appellant to
make the grievance regarding upward revision of assessment of its needs.
That this Court was only concerned with TISCO's claim and IDCOL's claim.
These claims could be examined without going into the wider question of
inter se disputes between the contesting Respondents. He also submitted
that there is no question of any estoppel on the part of the appellant or any E
acquiescence, as the said question never arose for consideration earlier.
That there was no delay also on the part of appellant in challenging the order
of the Central Government dated 17th August, 1995 as the appellant had
promptly challenged the same before the High Court in the beginning of the
year 1996. He, therefore, submitted that the appeal may be allowed and the F
order of the High Court may be set aside.
Points for determination :
In the light of the aforesaid rival contentions, the following points arise
for our determination.
G
.~ .
1. Whether the writ petition filed by the appellant before the High
Court was barred by res judicata;
2 .. In. the alternative, whether the said petition was barred by the
prmc1ple of constructive res judicata;
H
64
A
B
SUPREME COURT REPORTS
[1999) 2 S.C.R.
3. Even if the findings on the aforesaid points are in negative, whether
the writ petition was liable to be dismissed on the additional ground •
that the appellant had waived its grievance in the writ petition. and;
therefore, the writ petition was not maintainable on the grounds of
waiver, estoppel and acquiescence on the part of the appellant and
also on the ground that it was barred by delay and !aches;
4.