# M/S. KALINGA MINING CORPORATION v. UNION OF INDIA & ORS

- **Citation:** [2013] 1 S.C.R. 814
- **Court:** Supreme Court of India
- **Decided:** 2013
- **Case number:** Civil Appeal No. 1013 of 2013
- **Bench:** Surinder Singh Nijjar, H.L.Gokhale
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-s-kalinga-mining-corporation-v-union-of-india-ors-28815
- **Pages:** 39

## Headnote

Res Judicata:
c
Writ petition - Substitution of legal heirs of applicant for
grant of mining lease - Allowed by High Court - SLP
dismissed in limine - Issue again raised by appellant in writ
petition challenging the order of granting mining lease - Held:
It cannot be said that High Court has effoneously accepted
0 the plea raised by LRs of respondent that the claim of
appellant is baffed by re~ judicata - On the plea of a decision
in a subsequent judgment, the issue cannot be permitted to
be reopened since it has become final inter partes -
Judgments - Finality of judgment.
E
Mineral Concession Rules, 1960:
r.25-A - Held: Is prospective in operation.
Administrative Law:
F
Opportunity of hearing - Mining lease - Plea of violation
of principles of natural justice alleging that parties wers heard
by a differsnt officer and decision was made by another officer
- Held: Judicial rsview of administrative action/quasi judicial
orders passed by Government is limited only to correcting the
G errors of law or fundamental procedural rsquirsments which
may lead to manifest injustice - When conclusions of
authority ars based on evidence, the same cannot be rsapprsciated by the court in exercise of its powers of judicial
rsview - In the instant case, the order was the verbatim
H
814
KALINGA MINING CORPORATION v. UNION OF INDIA 815
& ORS.
reproduction of report prepared by the officer who had heard A
the parties and it was signed by the other officer merely to
communicate the approval of Central Government to parties
- It is clearly a case of institutional hearing - Order does not
suffer from any legal or procedural infirmity - Judicial review.
In response to the notification dated 20.7.1965 issued
by the State Government, the appellant, respondent no.
10 and others submitted their applications for grant of
mining lease in respect of the notified area. On 8.6.1973,
B
the Central Government rejected all the applications. C
Respondent no. 10 filed a writ petition (OJC No. 829 of
1978), which was allowed by High Court on 4.9.1987
directing the Central Government to reconsider the matter
after giving all the parties concerned an opportunity of
hearing. On 10.9.1987 respondent no. 10 died. Legal heirs
of respondent no. 10 approached the High Court for D
substitution, which was allowed.
On 8.4.1999, the Central Government approved the
recommendation of the State Government for grant of
mining lease in favour of legal representatives of E
respondent no. 10. In the writ petition filed by the
appellant, the High Court, by its order dated 2.7.2001 held
that on the death of respondent no. 10, her application
for mining lease did not abate. SLP No. 13556 of 2001 filed
by the appellant against the said order was dismissed in
F
limine on 24.8.2001. Ultimately, by order dated 27.9.2001,
mining lease was granted in favour of legal
representatives of respondent no. 10. The appellant
challenged the said order before the High Court In OCJ
No. 3662 of 2002. Meanwhile In Sa/igram Khirwal's case It G
was held that legal heirs could not pursue an application
for mining lease and that r.25-A was prospective.
However, the High Court observed that legal heirs would
be at liberty to make a fresh application In their own right.
The writ petition was allowed to be amended In view of H
816
SUPREME COURT REPORTS
[2013) 1 S.C.R.
A judgment in Saligram's case, but the preliminary objection
raised by the appellant regarding the maintainability of the
application for mining lease by legal heirs, was rejected
by the High Court, by its order dated 3.8.2007, holding
that the controversy stood concluded between the parties
B by rejection of earlier SLP No. 13556 of 2001 on 24.8.2001.
The appellant challenged the order dated 31.8.2007 in C.A.
No. 1013 of 2013. OCJ No. 3662 of 2002 was, ultimately,
dismissed by the High Court on 24.11.2008. The
appellant challenged the said order in C.A. No. 1014 of
c 2013.
In C.A. No 1013 of 2013, the question for
consideration before the Court wa

## Text

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A
B
[2013] 1 S.C.R. 814
M/S. KALINGA MINING CORPORATION
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 1013 of 2013)
FEBRUARY 07,.2013.
[SURINDER SINGH NIJJAR AND H.L.GOKHALE, JJ.]
Res Judicata:
c
Writ petition - Substitution of legal heirs of applicant for
grant of mining lease - Allowed by High Court - SLP
dismissed in limine - Issue again raised by appellant in writ
petition challenging the order of granting mining lease - Held:
It cannot be said that High Court has effoneously accepted
0 the plea raised by LRs of respondent that the claim of
appellant is baffed by re~ judicata - On the plea of a decision
in a subsequent judgment, the issue cannot be permitted to
be reopened since it has become final inter partes -
Judgments - Finality of judgment.
E
Mineral Concession Rules, 1960:
r.25-A - Held: Is prospective in operation.
Administrative Law:
F
Opportunity of hearing - Mining lease - Plea of violation
of principles of natural justice alleging that parties wers heard
by a differsnt officer and decision was made by another officer
- Held: Judicial rsview of administrative action/quasi judicial
orders passed by Government is limited only to correcting the
G errors of law or fundamental procedural rsquirsments which
may lead to manifest injustice - When conclusions of
authority ars based on evidence, the same cannot be rsapprsciated by the court in exercise of its powers of judicial
rsview - In the instant case, the order was the verbatim
H
814
KALINGA MINING CORPORATION v. UNION OF INDIA 815
& ORS.
reproduction of report prepared by the officer who had heard A
the parties and it was signed by the other officer merely to
communicate the approval of Central Government to parties
- It is clearly a case of institutional hearing - Order does not
suffer from any legal or procedural infirmity - Judicial review.
In response to the notification dated 20.7.1965 issued
by the State Government, the appellant, respondent no.
10 and others submitted their applications for grant of
mining lease in respect of the notified area. On 8.6.1973,
B
the Central Government rejected all the applications. C
Respondent no. 10 filed a writ petition (OJC No. 829 of
1978), which was allowed by High Court on 4.9.1987
directing the Central Government to reconsider the matter
after giving all the parties concerned an opportunity of
hearing. On 10.9.1987 respondent no. 10 died. Legal heirs
of respondent no. 10 approached the High Court for D
substitution, which was allowed.
On 8.4.1999, the Central Government approved the
recommendation of the State Government for grant of
mining lease in favour of legal representatives of E
respondent no. 10. In the writ petition filed by the
appellant, the High Court, by its order dated 2.7.2001 held
that on the death of respondent no. 10, her application
for mining lease did not abate. SLP No. 13556 of 2001 filed
by the appellant against the said order was dismissed in
F
limine on 24.8.2001. Ultimately, by order dated 27.9.2001,
mining lease was granted in favour of legal
representatives of respondent no. 10. The appellant
challenged the said order before the High Court In OCJ
No. 3662 of 2002. Meanwhile In Sa/igram Khirwal's case It G
was held that legal heirs could not pursue an application
for mining lease and that r.25-A was prospective.
However, the High Court observed that legal heirs would
be at liberty to make a fresh application In their own right.
The writ petition was allowed to be amended In view of H
816
SUPREME COURT REPORTS
[2013) 1 S.C.R.
A judgment in Saligram's case, but the preliminary objection
raised by the appellant regarding the maintainability of the
application for mining lease by legal heirs, was rejected
by the High Court, by its order dated 3.8.2007, holding
that the controversy stood concluded between the parties
B by rejection of earlier SLP No. 13556 of 2001 on 24.8.2001.
The appellant challenged the order dated 31.8.2007 in C.A.
No. 1013 of 2013. OCJ No. 3662 of 2002 was, ultimately,
dismissed by the High Court on 24.11.2008. The
appellant challenged the said order in C.A. No. 1014 of
c 2013.
In C.A. No 1013 of 2013, the question for
consideration before the Court was: whether the
dismissal on 24.8.2001 of the SLP filed by the appellant
against the judgment of the High Court dated 2.7.2001 in
D OJC No. 11537 of 1999 would attract ttie principles of res
juclicata, so as to disentitle the appellant from urging the
invalidity of the application of the legal heirs in place of
the deceased-respondent no. 10 in the pending
proceedings in OJC No. 3662 of 2002. In C.A. No. 1014 of
E 2013, it was contended for the appellant that the order
dated 27.9.2001 was passed in violation of principles of
natural justice in asmuch as the parties were heard by the
Joint Secretary, whereas the order was passed by the
F
Deputy Secretary, who did not hear the parties at all.
Dismissing the appeals, the Court
HELD: 1.1. 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
G appellant had accepted the locus standi of the LRs of
respondent no. 10. This is evident from the fact that in the
subsequent hearings before the Central Government,
which were held consequent upon the directions issued
by the High Court, the appellant raised no objection with
H regard to the locus standi of the legal heirs of respondent
KALINGA MINING CORPORATION v. UNION OF INDIA 817
& ORS.
No. 10. Clearly, therefore, a final decision had been
A
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. [para 30-31) [835-D; 836-A-C]
1.2. The locus standi of the LRs of respondent No.
8
10 was not under challenge in the proceedings before the
High Court in OJC No. 4316 of 1990. It is noteworthy that
the appellant accepted the judgment in the said writ
petition. 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. This was the second
C
time when the locus standi of the LRs of respondent no.
10 was accepted judicially. In such circumstances, it
cannot be said 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.
D
Even after the judgment in Sa/igram's case, 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 since it has become final inter
partes. The subsequent interpretation of r.25A by this
E
Court, that it would have only prospective operatjon, in
the case of Saligram, would not have the effect of
reopening the matter which was concluded between the
parties. Given the history of litigation between the parties,
which commenced in 1950s, the High Court was justified. F
in finally giving a quietus to the same. [para 31,33 and
34) [837-G-H; 838-A-B; 838-F-G; 839-B]
Saligram Khirwal Vs. Union of India & Ors. 2003 (3)
Suppl. SCR 522 = (2003) 7 SCC 689; State of West Bengal G
Vs. Hemant Kumar Bhattacharjee & Ors. 1963 Supp (2) SCR
542 and Mohan/al Goenka Vs. Benoy Kishna Mukherjee &
Ors. 1953 SCR 377 - referred to.
1.3. In the instant case, not only the High Court had
rejected the objection of the appellant to the substitution
H
818
SUPREME COURT REPORTS
[2013) 1 S.C.R.
A of the legal heirs of the deceased 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 in
the order of this Court, the same cannot be said to be
B wholly irrelevant. The High Court committed no error in
taking the same into consideration in the peculiar facts
of the case. Ultimately, the decision of the High Court was
clearly based on the facts and circumstances of the case.
The High Court ciearly came to the conclusion that the
c appellant had accepted the locus standi of the LRs of the
deceased to pursue the application for the mining lease
before the Central Government, as well as in the High
Court. [para 34) [839-E-G]
The Chamber of Colours and Chemicals (P) Ltd. Vs.
D Trilok Chand Jain (1973) 9 DLT 510 Para 6; Ta/eb Ali & Anr.
Vs. Abdul Aziz & Ors. AIR 1929 Cal 689 Para 38, and Shah
Babula/ Khimji Vs. Jayaben D. Kania & Anr. (1981) 4 SCC
8; Mathura Prasad Bajoo Jaiswal & Ors. Vs. Dossibai N.B.
Jeejeebhoy 1970 (3) SCR 830 = (1970) 1 SCC 613, Nand
E Kishore Vs. State of Punjab 1995 (4) Suppl. SCR 16 = 1995
(6) SCC 614, Sushi/ Kumar Mehta Vs. Gobind Ram Bohra
(Dead) Through His LRs 1989 (2) Suppl. SCR 149=1990
(1) SCC 193, and Kunhayammed & Ors. Vs. State of Kera/a
& Anr. 2000 (1) Suppl. SCR 538 = 2000 (6) SCC 359; P.
F Pollution Control Board & Ors. Vs. Kanoria Industrial Ltd. &
Anr. 2001 (1) SCR 559 = 2001 (2) SCC 549; C. Buchi
Venkatarao
Vs.
Union
of India
& Ors.
1972
(3) SCR 665 c 1972 (1) SCC 734; Shanti Devi Vs. State of
Haryana & Ors. 1999 (5) SCC 703; Union of India & Ors. Vs.
G Mohd. Nayyar Khalil & Ors. 2000 (9) SCC 252; and
Satyadhyan Ghosa/ & Ors. Vs. Deorajin Debi (Smt.) & Anr.
1960 SCR 590 =AIR 1960 SC 941 - cited.
CIVIL APPEAL NO. 1014 OF 2013
H
2.1. It Is by now well settled that judicial review of the
KALINGA MINING CORPORATION v. UNION OF INDIA 819
& ORS.
administrative action/quasi judicial orders passed by the
A
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 ca11,not be reappreciated by the court in exercise of its powers of B
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 c
person would have reached such a conclusion on the
basis of the material 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
0
erroneous. [para 44) [846-G; 847-A-C]
Tata Cellular Vs. Union of India 1994 (2) Suppl.
SCR 122 = 1994 (6) SCC 651 - referred to.
2.2. In the instant case, the High Court has examined
E
the entire record and has concluded that the decision
making process is not flawed In any manner. The record
Indicated that the matter was heard by Joint Secretary for
two days I.e. on 28.8.2001 and 13.9.2001. Both the parties
had been given opportunity to place on record any
F
documents and written submissions In support of their
claim. Upon conclusions of the arguments by the parties,
the Joint Secretary who had heard the parties prepared
the note running Into 19 pages, and duly signed It on
17.9.2001. The High Court further noticed that In fact this G
Is the report which had been duly approved by the
Secretary on 18.9.2001 and by the Minister on 25.9.2001.
·.The Impugned order dated 27.9.2001 Is, In fact, a verbatim
copy of the report/note prepared by the Officer who had
heard the parties. The High Court has concluded that the
H
820
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A order has been signed by the Deputy Secretary merely
to communicate the approval of the Central Government
to the parties. [para 45-47] [849-8, D-F; 850-8-C, E-F]
2.3. The conclusions reached by the High Court
8 cannot be said to be contrary to the established
principles and parameters for exercise of the power of
judicial review by the courts. It cannot be said that the
order dated 27.9.2001 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. [para 48] [850·
C G; 851-C-D]
Pradyat Kumar Bose Vs. The Hon'ble The Chief Justice
of Calcutta High Court 1955 (2) SCR 1331- referred to
0
Local Government Board Vs. Arlidge (1915) AC 120 -
referred to
2.4. In view of the settled position of law, it cannot be
said that the order dated 27.9.2001 suffers from any legal
or procedural infirmity. The conclusions reached by the
E High Court are in accordance with the settled principles
of law. Undoubtedly, any decision, even if it is
administrative in nature, which causes adverse civil
consequences must be passed upon hearing the parties
concerned. The Central Government has fully complied
F with the said principle In passing the order dated 27.9.
2001. [para 48] [852-C·D, E·F]
Gullapalli Nageswara Rao & Ors. Vs. Andhra Pradesh
State Road Transport Corporation & Anr. 1959 Suppl.
G SCR 319 =AIR 1959 SC 308; Bachhittar Singh Vs. State of
Punjab & Anr. AIR 1963 SC 395; Automotive Tyre
Manufacturers Association Vs. Designated Authority & Ors.
2011 (1) SCR 198 = (2011) 2 SCC 258; Commissioner of
Income Tax, Bombay & Ors. Vs. Mahindra and Mahindra
H Limited
&
Ors.
1983
(3)SCR773=1983
KALINGA MINING CORPORATION v. UNION OF INDIA 821
& ORS.
(4) SCC 392; Sandur Manganese and Iron Ores Limited Vs.
A
State of Karnataka & Ors. 2010 (11) SCR 240 = 2010
(13) SCC 1; Lord Krishna Textile Mills Vs. Workmen .1961
SCR 204 =AIR 1961 SC 860; Ashok Kumar Das & Ors. Vs.
University of Burdwan & Ors. 2010 (3) SCR 429 = 2010
(3) SCC 616; State of Tamil Nadu Vs. Hind Stone & Ors.
8
1981(2) SCR 742 = 1981 (2) SCC 205 and Kabini Minerals
(P) Ltd. & Anr. Vs. State of Orissa & Ors. 2005 (5) Suppl.
SCR 341 = 2006 (1) SCC 54; Regional Manager, Central
Bank of India Vs. Madhulika Guruprasad Dahir & Ors. 2008
(11) SCR 319 = 2008 (13) SCC 170; and State of Orissa & C
Ors. Vs. Harapriya Bisoi 2009 (7) SCR 34 = 2009 (12)
SCC 378; Ossein and Gelatine Manufacturers' Association of
India Vs. Modi Alkalies and Chemicals Limited & Anr. 1989
(3) SCR 815 = 1989 (4) sec 264 - cited.
Case Law Reference:
D
2003 (3 ) Suppl. SCR 522 referred to
para 19
(1973) 9 DLT 510 Para 6
cited
para 24
AIR 1929 Cal 689 Para 38 cited
para 24
E
(1981) 4 sec 8
cited
para 24
1970 (3) SCR 830
cited
para 24
1995 (4) Suppl. SCR16
cited
para 24
F
1989 (2) Suppl. SCR 149 cited
para 24
2000 (1) Suppl. SCR538 cited
para 24
2001 (1) SCR 559
cited
para 25
1972 (3) SCR 665
cited
para 25
G
1999 (5) sec 103
cited
para 27
2000 (9) sec 252
cited
para 27
H
822
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A
1963 Supp (2) SCR 542
referred to
para 27
1953 SCR 377
referred to
para 27
1960 SCR 590
referred to
para 28
B
1959 Suppl. SCR 319
cited
para 39
AIR 1963 SC 395
cited
para 39
2011 (1) SCR 198
cited
para 39
1983 (3) SCR 773
cited
para 39
c
2010 (11) SCR 240
cited
para 39
1961 SCR 204
cited
para 39
2010 (3) SCR 429
cited
para 39
D
1981 (2) SCR 742
cited
para 39
2005 (5) Suppl. SCR 341
cited
para 39
2008 (11) SCR319
cited
para 40
E
2009 (7) SCR 34
cited
para 40
(1915) AC 120
referred to
para 42
1989 (3) SCR 815
cited
para 42
F
1955 (2) SCR 1331
referred to
para 42
1994 (2) Suppl. SCR 122 cited
para 44
CIVIL APPELLATE JURISDICTION : Civil Appeal No
1013 of 2013.
G
From the Judgment & Order dated 24.11.2008 of the Higt
Court of Orissa, Cuttack in O.J.C. No. 3662 of 2002.
WITH
H C.A. No. 1014 of 2013
KALINGA MINING CORPORATION v. UNION OF INDIA 823
& ORS.
Mohan Jain, ASG, Krishnan Venugopal, Surya Prasad
A
Misra, T.S. Doabia, Ashok K. Gupta, S. Ravi Shankar, S.
Yamunah Nachiar, D.K. Thakur, Kiran Bhardwaj, R.K. Rathore,
S.S. Rawat, D.S. Mahra, Sunita Sharma (for Anil Katiyar), P.K.
Manohar, M. Paikaray, Kirti Renu Mishra, Apurva Upamanyu,
Suresh Chandra Tripathy for the Appearing parties.
B
The Judgment of the Court was delivered by
SURINDER SINGH NIJJAR, J. 1. Leave granted in both
the Special Leave Petitions.
c
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 rejecting the
preliminary issue raised by the appellant in OJC No.3662 of
0
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 20071
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
E
F
in Kalaparbat Hill range of Keonjhar district subject to
G
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 the same
was not considered by the State Government, the appellant filed
a revision before the Central Government. The same was
H
824
SUPREME COURT REPORTS
(2013] 1 S.C.R.
A 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
B 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,
C 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 10th
September, 1965, six applicants including the appellant and
respondent No.10 submitted their applications for grant of
D mining lease in respect of the aforesaid area. It appears that .
the mining lease applications of the appellant as well as tti~
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
E 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
F 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.855of1969
G seeking a direction from the High Court for grant of mining lease
in its favour. Respondent No.10 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
H
KALINGA MINING CORPORATION v. UNION OF INDIA 825
& ORS. [SURINDER SINGH NIJJAR, J.]
7th April, 1967, the State Government on 3rd September, 1971,
A
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
B
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 c
dated 29th December, 1972, the Central Government directed
the State Government to reject the mining lease application of
Dr. Pradhan. Thereafter on 8th June, 1973, the State
Government rejected all pending mining lease applications
including the application of appellant and Dr. Sarojini Pradhan. · 0
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
E
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,
F
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
G
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 speaking
order, i.e. by giving reasons for the decision."
H
826
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A
9. We may notice here that in the aforesaid writ petition,
the appellant and the other applicants had filed applications for
intervention. How~ver, 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
B 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.
C 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.
D In the aforesaid application, a direction was given by the High
Court on 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
E 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 N0.829 of 1978. In the aforesaid Case
F No.1977 of 1988, on 11th May, 1988, the High Court passed
the following order :
G
H
"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
KALINGA MINING CORPORATION v. UNION OF INDIA 827
& ORS. [SURINDER SINGH NIJJAR, J.]
not appear before the Central Government on that day due
A
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.
B
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.
c
13. Thereafter on 11th May, 1990, the Central Government
D
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
E
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 dated 26th June, 1990, the legal
representatives of Dr. Pradhan furnished the information and
documents to the State Government. At this stage, the
F
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
G
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
H
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SUPREME COURT REPORTS
[2013] 1 S.C.R.
A 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.
B
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
C 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.
D
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
E 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 Government to the legal representatives
of Dr. Pradhan on 8th July, 1999, which were accepted by them
F 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
G 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
H
KALINGA MINING CORPORATION v. UNION OF INDIA 829
& ORS. [SURINDER SINGH NIJJAR, J.]
not be reopened in the hearing before the Central Government.
A
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 place of 8
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.
c
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 D
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
E
lease. Thus, the interpretation placed on Rule 25A by the High
Court to the effect that it was clarificatory in nature, 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
F
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 G
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
1.
(2003) 1 sec ass.
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SUPREME COURT REPORTS
[2013] 1 S.C.R.
A 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
B parties by the rejection of the earlier SLP (C) No. 13556 of
2001 on 24th August, 2001. It was held that 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
c 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
D been challenged in the present appeal.
E
F
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. :
(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?
G
(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
H
urging the invalidity of the application of the legal
KALINGA MINING CORPORATION v. UNION OF INDIA 831
& ORS. [SURINDER SINGH NIJJAR, J.]
heirs in place of the deceased Dr. Pradhan, in the
A
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
8
length.
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
C
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 D
of Colours and Chemicals (P) Ltd. Vs. Trilok Chand Jain2,
Taleb Ali & Anr. Vs. Abdul Aziz & Ors. 3, and Shah Babula/
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
E
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 Mathura Prasad Bajoo
.Jaiswal & Ors. Vs. Dossibai N.B. Jeejeebhof', Nand Kishore
Vs. State of Punjab6, Sushi/ Kumar Mehta Vs. Gobind Ram
F
Bohra (Dead) Through His LRs,7 and Kunhayammed & Ors.
Vs. State of Kera/a & An,a.
2.
(1973) 9 DLT 510 Para 6.
3.
AIR 1929 Cal 689 Para 38.
4.
(1981) 4 SCC 8 Paras 55 and 78.
s .. (1970) 1 sec 613.
6.
(1995) 6 sec 614 para 17.
7.
(1990) 1 sec 193 para 26.
8.
(2000) 6 sec 359.
G
H
832
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A
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
s upon the judgment in the case of Sa/igram (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
C non est in the eyes of law. If so, any recommendation for grant
of mining lease to the 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
0 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
E Control Board & Ors. Vs. Kanoria Industrial Ltd. & An~. 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.
F 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 No. 3662 of 2002. Mr. Venugopal further
submitted that the legal position was made clear by this Court
G even before insertion of Rule 25A in the case of C. Buchi
Venkatareo Vs. Union of India & Ors. 10
26. Mr. Dushyant Dave, learned senior counsel for the
9.
(2001) 2 sec 549 Para 18.
H 10. (1972) 1 sec 734 Para 14.
KALINGA MINING CORPORATION v. UNION OF INDIA 833
& ORS. [SURINDER SINGH NIJJAR, J.]
respondent No. 10 submits that in the facts and circumstances A
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
8
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
C
situation emerging from the facts 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
D
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 & Ors11 • and Union of India & Ors. Vs. Mohd. Nayyar
Khalil & Ors12. The learned senior counsel reiterates that the
claim made by the appellant would be barred by res judicata.
E
~n support of his submission, he relies on the judgment in the
case of State of West Bengal Vs. Hemant Kumar
Bhattacharjee & Ors13• and Mohan/al Goenka Vs. Benoy
Kishna Mukherjee & Ors. 14• On the basis of the aforesaid
judgments, it is submitted that even if the judgment dated 2nd
F
July, 2001 rendered by the 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.
G
10 and their status to maintain and proceed with the mining
11. (1999) 5 sec 103.
12. (2000) 9 sec 252.
13. 1963 Supp (2) SCR 542.
14. 1953 SCR 377.
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SUPREME COURT REPORTS
[2013) 1 S.C.R.
A 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
B 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
c private law. He submits that the judgment relied by the appellant
in the case of Mathura Prasad (supra) is distinguishable as it
is 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
D 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.) & Anr15.
29. We have considered the submissions made by the
E 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
F 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 res judicata. On 3rd
September, 1971, the State Government passed an order
G 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
H 15. AIR 1960 SC 941.
KALINGA MINING CORPORATION v. UNION OF INDIA 835
& ORS. [SURINDER SINGH NIJJAR, J.]
applications including the application of the appellant and Dr.
A
. 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.
B
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 c
September, 1987.