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IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) No.

OF 2013

IN THE MATTER OF: M/s Lakshminarayana Mining Company A partnership firm represented by its Partner Shri D.N.Gopalakrishna, Having its office at No.33, Sannidhi Road, Basavanagudi, Bangalore Versus Supreme Court of India, Represented by its Registrar Tilak Marg, New Delhi-110001 Contesting Respondent ... Petitioner

A WRIT PETITION UNDER ARTICLE 32 OF CONSTITUTION OF INDIA

PRAYING FOR A WRIT OF MANDAMUS OR APPROPRIATE ORDER, DIRECTION FOR DECLARING ORDER XL RULE 3 OF SUPREME COURT RULES AS

UNCONSTITUTIONAL IN SO FAR AS IT RELATES TO THE DISPOSAL OF

REVIEW PETITION WITHOUT ORAL ARGUMENTS AGAINST JUDGMENTS

PASSED UNDER ARTICLE 32 OF THE CONSTITUTION. To, The Honble Chief Justice of India and his other companion Judges of the Honble Supreme Court of India. The Humble Petition of the Petitioner abovenamed. MOST RESPECTFULLY SHOWETH: 1. The petitioner, a registered partnership firm (No. 1139/80-81) represented by its partner, Mr. D.N. Gopalakrishna, is challenging the

constitutional validity of Order XL Rule 3 of the Supreme Court rules in so far as it requires a review petition to be disposed off by circulation without any oral arguments even in case of a Review Petition filed against a Judgment of this Hon'ble Court passed in the exercise of its extraordinary jurisdiction under Article 32 of the Constitution of India.

2.

The relevant Articles of the Constitution of India and the Supreme Court Rules are reproduced below for ready reference:-

Article 32 of the Constitution of India 32. Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus,

mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights

conferred by this Part. (3) Without prejudice to the powers

conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within

the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ) (4) The right guaranteed by this article shall not be suspended except as otherwise

provided for by this Constitution.

Article 145(3) of the Constitution of India

145 (3) :-The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this

Constitution or for the purpose of hearing any reference under Article 143 shall be five: Provided an that, where under the any Court of the

hearing

appeal

provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law of this as to the the

interpretation

Constitution

determination of which is necessary for the

disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.

ARTICLE 137 OF THE CONSTITUTION OF INDIA

Subject to the provisions of any law made by parliament or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.

Order XL of the Supreme Court Rules, 1966 (1) An application for review shall

be by a petition, and shall be filed within thirty days from the date of the judgment or order sought to be

reviewed. It shall set out clearly the grounds for review.

(2)

No application for review in a

civil proceeding shall be entertained unless the party seeking review

furnishes to the Registrar of this Court at the time of filing the petition for review, cash security to the extent of two thousand rupees for the costs of the opposite party. (3) [Unless otherwise ordered by

the Court] an application for review shall be disposed of by circulation without any oral arguments, but the petitioner petition may by supplement additional his

written

arguments. The Court may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed. From a conjoint reading of all the four provisions above the following propositions emerge:

(i)

Order XL Rule 3 of Supreme Court Rules is violative of Articles 14, 21 and 137 of the Constitution of India. Article 137 confers

on the Supreme Court, the power to review its Judgment. It does not expressly require the review to be decided by circulation. However, Article 137 does provide that the said power to Review may be subject to the Rules as made under Article 145. Order XL Rule 3 of the Supreme Court Rules provides that a review petition is required to be disposed off by circulation without any oral arguments. The same is made applicable even in cases where this Hon'ble Court has passed a Judgment in exercise of its

powers under Article 32. Such a Judgment rendered by this Hon'ble Court becomes practically "un-appealable". The Indian

judicial system is based on an "adversarial system" of Justice. This system is impliedly enshrined in our Constitution and finds specific mention in various statutes, though not in so many words.

(ii)

Every petition under Article 32, that has been entertained by this Hon'ble Court involves a substantial question of law and it has to be heard by a bench consisting of a minimum number of 5 judges: Article 32 does not prescribe the number of judges required for hearing of a petition filed under Article 32. Since jurisdiction vested in this Honble Court under Article 32 is extraordinary jurisdiction, it is presumed that a petition entertained by this Hon'ble Court under Article 32 is always a petition involving a substantial question of law as to interpretation of the constitution. Article 145(3) speaks of a minimum number of 5 judges for any petition which involves a substantial question of law of provides the that as to the

interpretation However, it

constitution. hearing of

appeals other than an appeal under Article 132 may be by a court of less than 5

judges. Article 145(3) of the Constitution of India, in its proviso, makes a distinction only in respect of appeals under Article 132

and other Appeals. The said Article is silent as respects any such distinction in the case of Article 32 and by implication would necessarily include within its ambit

Petitions under Article 32. Therefore the reasonable sequitur is that every petition under Article 32 has to be heard by a bench consisting minimum number of 5 Judges.

3.

The petitioner in the current Petition challenges the constitutional validity of Order XL Rule 3 of the Supreme Court Rules, 1966 in so far as it relates to disposal of a review petition by circulation without oral hearing especially in respect of judgments passed by this Honble court in Writ Petitions under Article 32 of the Constitution of India. It is submitted that the said provisions of the Supreme Court Rules is violative of Articles 14, 21 and 137 of the Constitution of India.

4.

A judgment passed by this Honble Court in a petition filed under Article 32 of the Constitution

of India is final and there is no right of appeal to the aggrieved party. It is trite that as a matter of principle of natural justice, a party should be entitled to at least one right of appeal on law and facts. In recognition of this basic principle of natural justice, the Petitioner herein challenges the above rules in so far as relates to judgments passed by this Honble court in Writ Petitions under Article 32 of the Constitution of India. In view of Order XL Rule 3, the petitioner gets no opportunity of oral hearing.

5.

petition

under

Article

32

in

W.P.

(C)

No.562/2009 was entertained by this Honble Court by a court consisting of 3 judges in accordance with Order XXXV Rule 1 of Supreme Court Rules, 1966. This petition was filed

seeking to stop illegal mining in the State of Karnataka which was highlighted in the Report dated 18-12-2009 of Lokayukta of Karnataka. In the said petition, Central Empowered Committee (hereinafter for short the CEC) was asked to submit a report on the allegations of illegal mining in the Bellary region of the state of

Karnataka.

The

initial

reports

submitted

indicated large-scale illegal mining and therefore by an order dated 29-07-2011 a complete ban on mining in the district of Bellary was imposed which was later extended to the districts of Tumkur and Chitradurga. Thereafter, a joint team was constituted by an order dated 06-052011 to determine the boundaries of 166 mining leases in the region. Noticing several objections to the survey conducted by CEC, by an order dated 23-09-2011, CEC was directed to reexamine. Thereafter, CEC submitted their final report dated 03-02-2012 which recommended primarily categorization of the mines into three categories, i.e., A, B and C on the basis of the extent of encroachment in respect of the mining pits and over burden dumps determined in terms of percentage qua the total lease area. The Category A comprised of 45 leases wherein no/marginal illegality have been found. The category B comprised of 72 leases wherein illegal mining by way of mining pits outside the sanctioned lease areas have been found upto 10% of the lease area and/or over burden

dumps outside the sanctioned lease areas have been found upto 15% of the total leases areas. The category C mines comprised of 49 leases wherein illegal mining by way of mining pits outside the sanctioned lease areas have been found to be more than 10% of the lease area and/or over burden dumps outside the

sanctioned lease areas have been found to be more than 15% of the total leases areas.

6.

It was further recommended by CEC that in respect of leases falling in A category, mining operations may be allowed to be undertaken after implementation of Reclamation and

Rehabilitation (hereinafter for short R& R) as per the pre-determined parameters. the leases falling in B In respect of CEC

category,

recommended for allowing mining operation only after payment of penalty of Rs.5 Crores per hectare of the area found by the Joint Team to be under illegal mining pit and Rs.1 Crore per hectare of the area found to be under illegal over burden dump and after implementation of R & R.

7.

In

respect

of

mining

leases

falling

in

Category, it was recommended that (a) such leases should be directed to be cancelled (b) the entire sale proceeds of the existing stock of iron ore to be retained by monitoring committee and (c) implementation of R & R at the cost of the lessee. It was further recommended that after cancellation of C-Category leases, the same may be allotted through a transparent process to the highest bidder from amongst the end users. The amount received by allotment of cancelled leases and from the sale proceeds of the existing stock of iron ore of these leases was directed to be transferred to a Special Purpose Vehicle to be set up for taking ameliorative and mitigative

measures.

8.

Petitioner was placed in C Category on the basis of alleged (12.38%) encroachment in the form of 13.03 of mining Hectares pit and

encroachment of 17.11 Hectares (16.26%) in the form of overburden dump. In reply to the said final report dated 03-02-2012, petitioner placed several documents on record before CEC

to demonstrate the issues involved, which clearly pointed to several omissions on the part of CEC which if considered would place the petitioner in A Category. But CEC failed to take note of any of the issues highlighted by the petitioner and in its report dated 28-03-2012, CEC rejected the contentions of the petitioner summarily without assigning any reasons whatsoever. It is pertinent to mention here that even before the final report dated 03-02-2012, petitioner had placed all the relevant facts and supporting documents with CEC, which were completely ignored.

9.

The primary contention of the petitioner was that the extent of encroachment as deduced by CEC was on account of following three issues (i) Surrendered area illegally worked by a company called as Vijay Mining and Infra Corp Pvt. Ltd. (hereinafter referred to as VLC) at the instance of Associated Mining Company has been added as encroachment on account of the petitioner (ii) Shifting of the lease area which resulted in workings within the lease area being treated as encroachment and (iii) reduction of lease from

105.22 hectares to 86.12 hectares. If only CEC had considered these issues, the extent of encroachment would have been only about

0.075 Hectares (0.07%) in the form of mining pits and 0.80 Hectares (0.76%) in the form of overburden dumps and the petitioner could have been placed in A Category. A copy of the chart depicting the documents and issues ignored by the CEC is annexed herewith as Annexure-P.1. (Page.48 to 50 ).

10.

Apart

from

factual

issues,

petitioner

also

objected to the recommendation of the CEC especially those in the C-Category as regards recommendation of the cancellation of the lease on several grounds including on the ground of jurisdiction of this Honble court under Article 32 which are as follows (1) that there are several enactments including Mines and Minerals

(Development and Regulation) Act, 1957 which mandate a elaborate procedure for cancellation of mining lease and this Honble Court acting under Article 32 and Article 142 cannot make a order in derogation of the provisions of various

statutes (2) that this Honble court under Article 32 cannot exercise its penal jurisdiction as first and final court (3) that power to enlarge the jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law and no court, either superior or inferior or both combined can enlarge the jurisdiction of a court or divest a person of his rights of revision and appeal (4) that this Honble court by merely accepting the recommendations of CEC had committed a mistake by delegating its

adjudicatory powers to the CEC which is again what is not envisaged in our constitution.

11.

This Honble court by its judgment dated 18-042013, rendered a novel interpretation of Article 32 and 142 by holding that while exercising jurisdiction under Articles 32 and 142 this Honble court can pass orders concerning an issue which can be settled only through a mechanism prescribed in another statute. It was directed that the mining leases are to be cancelled and in this regard this Honble court

held that the hearing afforded before CEC which is only a fact finding body was substantial compliance of natural justice thereby delegating its adjudicatory power to the CEC, which body did not have a single Judicial member in it. In any event, such delegation is not envisaged in our constitution. This Honble court thereby overlooked several settled principles of law and set up novel parameters for interpretation of Articles 32 and 142. Fundamental rights of the mining lessees under Part III of the Constitution have been completely overlooked by holding that Article 142 empowers the court to do complete justice which in effect places Article 142 even above part III of the constitution which was never intended.

12.

This Honble Court in the judgment passed in W.P. (C) No.562/2009 has assumed that an

extra ordinary situation had arisen in regard to the mines in Bellary and that there has been large scale plunder and looting by certain mine owners. Detailed submissions which had been

made questioning the inferences drawn by the

CEC have not even been considered but the said inferences which were the basis for the

recommendations have been accepted as true, without any scrutiny and verification of the correctness thereof and heavy penalties have been inflicted on the mine owners including the petitioner by cancelling the leases, forfeiting the amount realized or sale of iron ore and also forfeiting the iron ore lying there. A chart depicting the documents and issues ignored by this Honble Court is annexed herewith as

Annexure P-2 (Page. 51

to 59 ).

13.

It is indeed unprecedented that this Honble Court has, for the first time in the 63 years of its history, assumed the jurisdiction of penalizing a person and inflicting virtual civil death, as the first and final court, without even a trial and without considering the individual facts and circumstances of the case. The only exception in the past is in the Contempt Jurisdiction, where after full opportunity given to the alleged

contemnor, orders have been passed.

14.

Apart from being a wrong precedent, it is the respectful submission of the petitioner that the Division Bench of three Honble Judges of this Honble Court did not have jurisdiction to decide the case and lay down new law expounding

Article 32 and Article 142 of the Constitution in an unprecendented and novel fashion, jurisdiction, Constitution, under is Article 145(3) exclusively of in which the a

vested

constitution bench of minimum five

Honble

Judges. This aspect being the challenge to Rule XXXV (1) of the Supreme Court Rules is the subject matter of a separate Writ Petition filed by the petitioner which is pending before this Honble Court in W.P. No. 825 of 2013. A copy of the writ petition in W.P.No.825 of 2013 filed by the petitioner is produced herewith as Annexure P-3 (Page. 60 to 95 ).

15.

This Honble court also ventured into several aspects which in effect chartered a new path, for instance (1) punishing the petitioner without giving an opportunity for challenging the report of CEC which violated the principles of natural

justice (2) creation of ex post facto offenses (3) promulgation of new laws without publishing it in a notification (4) delegating adjudicatory

authority to CEC which does not have any judicial members as its presiding officer (5) setting aside/calling in question judgments

passed by High court in a petition under Article 32 etc. These interpretations made way to novel interpretations of several Articles of the

Constitution and hence it had to be heard by bench consisting minimum of 5 judges.

16.

Thus it is apparent that the petition clearly involved a substantial question of law involving interpretation of the constitution and in which case Article 145 (3) mandates hearing by bench consisting of minimum of five judges. However, the Rule XXXV of the Supreme Court Rules, 1966, empowers the court to hear a petition under Article 32 even by a division bench consisting of less than five judges which was never intended under the Article 145 (3). The only remedy available to the petitioner as

against the said judgment dated 18-04-2013 is

approaching this Hon'ble Court in a review petition. However, in a review petition as per Order XL Rule 3 of the Supreme Court Rules, the said petition will be decided by circulation

without necessarily affording an opportunity of hearing. Hence the present petition. A copy of the Review Petition No. 1943/2013 filed on 29.06.2013 is produced herewith as Annexure P-4 (Page. 96 to 145 ).

17.

The petitioner submits that under the existing dispensation, no hearing is to be afforded to the petitioner in its review petition in view of Order XL Rule 3; however grave the errors committed by this Honble Court in its judgment. But, what is to be noted is that the judgment of which review is sought was delivered in a writ petition filed under Article 32 of the Constitution of India. No right of appeal lies against the judgment of this Honble Court. The right of review is

conferred by the Constitution itself, under Article l37. The right of review, and that too of a judgment delivered in a petition filed under Article 32 of the Constitution which itself is a

Fundamental Right, cannot be emasculated by confining it to a disposal in Chambers. History shows that practically all review petitions are uniformly rejected except, perhaps, in a few cases. It is true that a hearing in open court in the case of every review petition would result in duplicating the large number of cases which are disposed of every year. But Article 32 itself is a Fundamental Right and if grave errors of

jurisdiction and of natural justice and of failure to state reasons are present in a judgment of this Honble Court, then, at least in this category of cases, one would require a hearing at least to decide whether the grievance or complaint made by the party whose Fundamental Rights primafacie have been violated by a judgment of this Honble Court. In this regard the embargo imposed by Order XL Rule 3 of the Supreme Court acts an obstruction or tends to retard the assertion of the fundamental right of the

petitioner and it does not aid in the redressal of the grievance of the petitioner.

18.

The petitioner has filed no other similar petition seeking same relief under Article 226 or 32 of the Constitution of India. The petitioner has filed a review petition seeking review of the judgment passed in W.P. (C) No.562/2009 and a writ petition challenging the validity of Order XXXV Rule 3 of the Supreme Court Rules which are produced above as Annexure P3 and Annexure P4.

19.

The petitioner also submits that it has no other efficacious alternative remedy except to

approach this Honble Court by way of present writ petition under Article 32 of the Constitution of India.

20.

The petitioner is desirous of filing the present writ petition on the following amongst other grounds which are to be taken in the alternative without prejudice to one another

GROUNDS A) Because, a party aggrieved by the

judgment of this Honble court in a petition

under Article 32 has no right of appeal and it is just and equitable that in a review petition, which effectively is in the manner of an Appeal against a Judgment rendered in the first instance, the party is at the very least given an opportunity of an oral hearing.

B)

Because the merit of the oral hearing lies in the fact that counsel addressing the court are able to discern what are the aspects of the controversy on which more light is needed. The court can thus have the benefit of an oral hearing in order to express its doubts on a point and seek clarification thereon from counsel. This is particularly important considering that the Indian judicial system is an adverserial system which necessarily needs a Court hearing both sides on a dispute before rendering a Judgment.

C)

Because Order XL Rule 3 of the Supreme Court Rules, 1966, is void in so far as it

relates to disposal of review petition by circulation without oral hearing especially in respect of judgments passed by this

Honble court in a writ petition under Article 32 of the Constitution of India.

D)

Because this Honble Court has held in Kranti Associates Limited vs Masood Ahmed Khan, (2010) 9 SCC 496, that the necessity and requirement of giving reasons serves the principles of natural justice, is a part of due process and is virtually a component of human rights. Not affording an oral hearing to the petitioner in a review

petition, especially when the review is sought of an judgment passed under Article 32, when the petitioner has no opportunity of filing an appeal, acts as an obstruction to the right of the petitioner or it retards the right of the petitioner to assert or vindicate its case, that the principles of natural justice is affected by the judgment of this Honble Court.

E)

Because

the

intention

in

promulgating

Order XL Rules 1 to 3 of the Supreme Court Rules, however laudable they are, cannot bar the petitioner an oral hearing in a review petition and the said rules do not aid fair hearing but on the contrary acts an hindrance to the right of the petitioner of being given an oral hearing, when the petitioner does not have an right of appeal against an order passed in an Article 32 petition.

F)

Because this Honble court while striking down Order XXXV Rule 12 of Supreme Court Rules in a case reported in AIR 1963 SC 996 (Prem Chand Garg and Another v. Excise Commissioner U.P. and others) it has held that in exercise of the powers under Artice 142, the court would not be bound by the relevant provisions of

procedure if it is satisfied that a departure from the said procedure is necessary to do complete justice between the parties. On this count also the petitioner is entitled to

an oral hearing and Order XL Rule 3 of the Supreme Court is liable to struck down.

G)

Because as held by this Court in AIR 1963 SC 996 that all proceedings in Court must be orderly and must follow the well-

recognised pattern usually adopted for a fair and satisfactory hearing, a petition under Article 32 is no exception. Since the petitioner is deprived of right of appeal against a judgment under Article 32, it becomes all the more imperative that a review petition must be heard in open court and on this count Order XL Rule 3 of the Supreme Court Rules is liable to be struck down.

H)

REGARDING

JUDGMENT

IN

W.P.

(C)

No.562/2009 DATED 18-04-2013

i)

Because, in this regard, it is relevant

to note that this Honble Court has, in a catena of judgments emphasized the

importance of giving reasons for a judicial decision, and in Kranti Associates Limited vs Masood Ahmed Khan, (2010) 9 SCC 496, has held that the necessity and requirement of giving reasons serves the principles of natural justice, is a part of due process and is virtually a component of human rights. This being so, it is this petitioners case that the said judgment, insofar as this review petitioners case is concerned is required to be reviewed set aside for having give any reasons and has thus failed to comply with the principles of natural justice.

ii)

Because the five judges bench of this

Honble Court has held in 1990 (4) SCC 594 ( S.N. Mukherjees case) that importance to assign reasons is more when the matter is at original stage like the present one. Recording of reason has been considered as one of the principles of the natural justice.

iii)

Because

the

other as

aspect

of

the is

matter,

insofar

natural

justice

concerned, is that the mining leases in question, including that of the petitioner, had been demarcated, and boundary stones planted, around 50 years ago, by the concerned authorities. There was no

allegation that the boundary pillars had ever been deliberately shifted. On the other hand, satellite and digital imagery was used by the CEC and the survey team, for drawing a fresh sketch of the boundaries. This resulted in a shifting of the boundaries. The result was that what was mined during the last 50 years, within the original mining lease boundaries, was now said to have been mined outside the boundaries, and hence the petitioner was said to be guilty of encroachment and its mining lease was, therefore, liable to be cancelled.

iv)

Because,

in

this

background,

the

petitioner, as well as the other mining lessees, had contended that by using the later digital and satellite imagery for

measuring the original lease area, the lease

area so identified could only be used for the purpose of future exploitation, but could not result in creating, as it were, a violation or an offence for having mined within the original boundaries, demarcated by the

pillars fixed by the concerned authorities, during the last 50 years or so. This aspect of the matter has not been dealt with by this Honble Court in its judgment of which review is sought, which would be

tantamount to deciding this issue against the petitioner without any reasons having been given, and would not be in conformity with the principles of natural justice.

I)

EXCEEDING

THE

POWERS

UNDER

ARTICLE 32 R/W ARTICLE 142 OF THE CONSTITUTION OF INDIA

Because jurisdiction

this

Honble to

Court accept

has

no

those

recommendations of CEC which are contrary to the statutory provisions:-

i)

Because

this

Honble

Court

has

exercised powers vested in the Legislative wing of the State, by directing cancellation of the petitioners mining lease for alleged past violations. Such cancellation for past violations is tantamount to punitive action, which has to be provided for by law. What is more, the judgment directs that the ore belonging to the Category C lessees, in which the present review petitioner falls, should stand confiscated, including the

validly extracted ore - a power not even provided by the Mines and Minerals

(Development and Regulation Act), 1957, (MMDR Act) or any other law, thus

amounting to legislating in that regard. This Honble Court, in the said judgment, has held that the provisions of the MMDR Act and Section 4(A) thereof have no

application, to enable the cancellation of the petitioners mining lease. This being so, the Court has, in substance and effect, created an offence not existing under the provisions of the MMDR Act, or of any other law, and

thereby punished the petitioner by directing cancellation confiscating of the its iron mining ore, lease, even and

validly

extracted, thus exercising jurisdiction which only the Parliament could have exercised. This would not only contravene the principle of Separation of Powers, but would virtually render futile and illusory the protection guaranteed, as a Fundamental Right to all persons, by Article 20 of the Constitution of India. ii) Because the direction to cancel the mining lease, as also the

petitioners

confiscation of the iron ore, even validly extracted, would also defeat the protection granted to the petitioner, by Article 300A of the Constitution, against deprivation of its property without the authority of law.

iii)

Because,

additionally,

this

Honble

Court, through the said judgment, accepted the recommendation of the Central

Empowered Committee (CEC) to the effect

that the mining lease be cancelled, and then be auctioned to the highest bidder. This is wholly contrary to Section 11 of the MMDR Act, which requires such grant of a mining lease to be made the most suitable and competitive entity, based on a comparison of the factors set out in Sub-section 3 of Section 11 of the Act, and not for monetary consideration by selling the mining lease to the highest bidder. This is also in the teeth of the fact that an express provision was made in the MMDR Act, through

introduction of Section 11A, by which the mining leases for coal and lignite alone could be auctioned, which would be by way of an exception to Section 11 of the Act. The judgment by a of this Honble Court in

delivered

Constitution

Bench

Supreme Court Bar Association vs. Union of India, (1998) 4 SCC 409, was expressly cited for the proposition that even Article 142 of the Constitution cannot be used to supplant statutory provisions, though a gap is the Statute could be filled up by the

Court. This again would be an instance where this judgment has gone far outside the scope of exercise of judicial powers by exercising, what in substance and in effect, is a legislative power. iv) Because this court failed to take note

of the judgements in 1995 (2) SCC 584Vinay Chandra Mishra, 1988 (2) SCC 602 A.R. Antulay vs R.S. Nayak & Anr wherein it was clearly held by bench consisting of 5 judges that while exercising powers under Article 142 and 32, this Honble court cannot completely overlook the substantive statutory provisions. v) Because the judgment referred to at

2009 (6) SCC 142 (M C Mehta Versus Union of India) has no application since it was only a case of suspension of mining operations and the present of case is the case of

cancellation

the

mining

leases

duly

granted under the provisions of the Act.

vi)

Because this Honble court ignored the

salutary principle that an order which this court could make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed cannot by the be Constitution, but it the

even

inconsistent of the

with

substantive

provisions

relevant

statutory laws.

J)

DEPRIVATION OF RIGHT OF APPEAL

TO THE LESSEES i) Because the problem faced by the is that, under the existing

petitioner

dispensation, no hearing is to be afforded to it in its review petition, however grave the errors committed by this Honble Court in its judgment. But, what is to be noted is that the judgment of which review is sought was delivered in a writ petition filed under Article 32 of the Constitution of India. No right of appeal lies against the judgment of this Honble Court. The right of review is

conferred by the Constitution itself, under Article 137. The right of review, and that too of a judgment delivered in a petition filed under Article 32 of the Constitution which itself is a Fundamental Right, cannot be emasculated by confining it to a disposal in Chambers. The cause-list of this Honble Court would disclose that each one of the review petitions is listed for being

considered every five minutes, where the same Honble Judge often sits in three different Benches within a course of 15 minutes. History shows that practically all review petitions are uniformly rejected

except, perhaps, in a few cases. It is true that a hearing in open court in the case of every review petition would result in

duplicating the large number of cases which are disposed of every year. But Article 32 itself is a Fundamental Right and if grave errors of jurisdiction and of natural justice and of failure to state reasons are present in a judgment of this Honble Court, then, atleast in this category of cases, one would

require a hearing atleast to decide whether the grievance or complaint made by the party whose Fundamental Right prima-facie have been violated by the judgment of this Honble Court warrants notice being issued in the review petition.

ii) Because whether the judgment of this Honble Court in N.R. Mirajkar Vs State of Maharashtra (1966) 3 SCR 744, applies or not, in regard to the issues raised

hereinabove, this Honble Court, in the judgment of which review is sought has acted contrary to the principle of separation of powers embedded in the Constitution, and has, in fact, exercised the Legislative power of the State. The judgment has held that Section 4(A) of the MMDR Act, which provides for cancellation of the mining leases under certain circumstances, has no application. There is no other power in any Statute which provides for cancellation of the mining lease. This being so, the court decided that because a large number of

lessees had allegedly encroached outside their respective mining lease areas, the situation called for the cancellation of the mining leases of the C category lessees and confiscation of the iron ore, even validly extracted. This is a purely punitive if action, and, in the absence of a statutory provision to this effect, this Honble Court was, in fact, exercising legislative power. The

petitioners partners

Fundamental

Rights

under Articles 19(1) (g), 20 and 21 of the Constitution, as also its rights under Article 300A of the Constitution, stand violated by such cancellation. The matter raises issues of far reaching constitutional importance, which need to be decided by reviewing the judgment in question. Nevertheless, if the petitioner is told that it is not entitled to a hearing in regard to the violation of its Fundamental Rights, when the Constitution itself provides for a right of review, a grave serious failure of justice would occasion. It is therefore submitted that not hearing the petitioner in open court, at least to decide

whether notice has to be issued on the review petition, would entail a denial of justice to the petitioner.

K)

VIOLATION OF ARTICLE 14 OF THE

CONSTITUTION OF INDIA Because the Central Empowered Committee (CEC) as well as the learned Amicus Curie, accepted the position that the violations by categories A and B cannot result in cancellation of their mining leases. The lessees falling in categories A and B have been directed to commence mining as soon as the Rehabilitation and Reclamation and other conditions are implemented. But the very basis on which the categorization was made, namely, violations in regard to

mining pits exceeding 10% of the total lease area and dumps exceeding 15% of the lease area, alone being liable to cancellation by categorizing them in category C, is violation of Article 14 of the Constitution, and has caused grave injustice to this

petitioner

resulting

in

the

permanent

closure of its mines and the cancellation of its mining lease for all time to come. L. Because this court erred in overlooking the principle that the petitioner has been condemned not by a procedure mandated by law, but by a procedure which is violative of Article 19 of the Constitution. That it is violative of Articles 14 and 19 of the constitution is evident from the

observations of the seven judges bench judgment in Anwar Ali Sarcar Case (AIR 1965 SC 1449) where this court found that even a criminal who was alleged to have committed an offence, a special trial would be per se illegal because it will deprive the accused of his substantial and valuable privileges of defense, which others similarly charged, were able to claim.

M.

Because it is submitted that though arguments boundaries that can the only sketch operate

specific redefining

prospectively were raised which had in fact

been included in the list of issues that one of the Honble Judges had circulated to the Counsel, the same has not even been adverted to or considered. On the other

hand this Honble Court has declared that the boundary as redrawn will henceforth be final. If this be so, surely the past conduct cannot be judged on the boundary so redrawn which operates only in futuro. However, this Honble Court without

discussing this aspect has jumped to a conclusion of illegality and violation by encroachment conclusion is beyond boundaries. with Such the

inconsistent

declaration in the Judgment.

N.

Because without any judicial finding

on the issue this Honble court wholly erred in assuming at Para 1 systematic plunder, Para 2 indiscriminate and rampant mining, Para 3 unprecedented in the history of Indian environmental jurisprudence, Para 4 large scale illegal mining, Para 33

extraordinary situation, Para 44 Chilling

and crippling effect on ecology etc. and based upon these unfounded surmises, this Honble wholly erred in punishing the

petitioner in as much as imposing civil death without even giving any opportunity of being heard.

O.

Because this court wholly ignored the

fact that in the cases of M.C.Mehta Vs. Union of India, Aravalli quarry cases,

Dehradun Quarry cases, this Honble court had either suspended the licenses or had completely banned the mining operations to prevent the environment degradation and the same principles could not have been applied to the present case as the present case did not involve a complete ban or suspension. On the contrary, mining has been allowed to reopen and this Honble court had passed without orders even on individual an

culpability

affording

opportunity to the individuals to meet the allegations made against them and

P.

Because this Honble court ignored

the principle that violation of law involving penal consequences will have to be tested on the law and facts as on the date of alleged violation and not on deemed

fictional state of affairs e.g. boundaries redrawn on a subsequent date and extent of mining lease revised later. This would

negate all known canons of penal juriesprudence and procession justice.

Q.

Because this Honble court overlooked

the principle that the state of mind or mens rea is invariably a vital ingredient for imposing penalties. If the owner of the land and the (the State State Government, Government, the the

Regulators

Central Government), The Indian Bureau of Mines, the Forest Department, the Mines Department and Ministry of Environment

and Forests as also the lessee in question and all the neighbouring idem and lessees were ad

went by the boundaries and Lease and the

areas as per the Mining

Mining Plan and the various approvals were granted and lessees carried on mining

within the boundary stone laid by/ approved by concerned departmental officials, the lessee cannot be penalized for alleged redrawn

encroachment on the basis of

boundaries arrived at by shifting reference points or by reducing areas on assumptions or even on scientific and sophisticated

modeling or positioning of boundaries.

R.

Because this Honble Court erred in

not noticing the fact that such redrawn boundaries or revised areas should govern the future and should be made to apply retrospectively and that the same cannot be the basis for founding an action for penalty by cancellation of the lease or imposing a monetary Honble penalty. Court In this regard this

ignored

the

principles

regarding ex post facto creation of offenses as expounded in AIR 1953 SC 394, Rao Shiv Bahadur and another Vs. State of Vindya Pradesh.

21.

The proper court fees has been paid on the writ petition. PRAYER It is therefore most respectfully prayed that in the aforementioned facts and circumstances this Honble Court may be pleased to a) Issue a writ of declaration or any other appropriate writ, order or direction under Article 32 of the Constitution of India, declaring that Order XL Rule 3 of the Supreme Court Rules, 1966 as un-

Constitutional and violative of Articles 32 and 145, 14 and 21 of the Constitution of India in so far as it relates to disposal of the review petition by circulation without oral hearing by in respect Honble Article of judgments in of writ the

passed petitions

this under

Court 32

Constitution of India; and/or b) Consequently direct that the Review

Petition being 1943 / 2013 filed by the petitioner be listed in open Court and oral

arguments be heard in support of the same; c) Issue any other appropriate writ, direction or order as this Honble Court may deem fit and proper in the facts and circumstance of the case.

AND

FOR

THIS

ACT

OF

KINDNESS,

THE

PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.

DRAWN BY: Harish V. Shankar

FILED BY:

PLACE : NEW DELHI DRAWN ON:___/12/2013 FILED ON: 17/12/2013

Vadivelu Deenadayalan Advocate for the Petitioner(s)

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION I. A. No. IN WRIT PETITION (C) No. IN THE MATTER OF: M/s Lakshminarayana Mining Company Versus Supreme Court of India Represented by its Registrar Respondent ..Petitioner /2013 /2013

Application for stay To, The Honble Chief Justice of India and His Companion Justices of the Supreme Court of India

The humble petition of the Petitioner above named

MOST RESPECTFULLY SHOWETH: 1. The petitioner is also challenging the

constitutional validity of Order XL Rule 3 of the Supreme Court rules in so far as it requires the

review petition to be disposed off by circulation without any oral arguments even in case of petition under Article 32 of the Constitution of India. The petitioner submits that the said rule is arbitrary, unreasonable, unfair and

unconstitutional in case of the review against the judgment and order in petition filed under Article 32 of the Constitution of India, against which there is no right of appeal. The Petitioner challenges the Constitutional validity of Order XXXV Rule 1 of the Supreme Court Rules, 1966 in so far as it permits a petition filed under Article 32 to be heard and decided by a Division Bench of less than five judges and also makes a distinction between a petition under Article 32 which involve substantial question of law as to interpretation of the constitution and those petitions under Article 32 which do not involve substantial question of law as to interpretation of constitution. It is humbly submitted that the said rule is ultravires the constitution of India and more specifically Articles 32 and 145(3) of the Constitution of India which on a conjoint reading mandate that (i) a petition under Article 32

cannot be heard and decided by a Division Bench consisting of less than 5 judges and (ii) No distinction as sought to be created by the impugned Order XXXV Rule 1 is permissible in respect of a Petition under Article 32 read with Article 145(3) of the Constitution of India.

2.

The facts and circumstances and grounds of challenge referred to in the accompanying writ petition may be read as part and parcel of this application and the same are not being repeated for the sake of brevity.

3.

The

petitioner

challenges

the

constitutional

validity of Order XL Rule 3 of the Supreme Court Rules, 1966 in so far as it relates to disposal of review hearing petition by in circulation respect without of oral

especially

judgments

passed by this Honble court in writ petition under Article 32 of the Constitution of India. The said provisions of the Supreme Court Rules is violative of Article 14, 21 and 137 of the Constitution of India. The extended jurisdiction by this Honble Court in the said writ petition

clearly involved a substantial question of law involving interpretation of the constitution and in which case Article 145 (3) mandates hearing by bench consisting of minimum of five judges. However, the Rule XXXV of the Supreme Court Rules, 1966 empowers the court to hear a petition under Article 32 even by a division bench consisting of less than five judges which was never intended under the Article 145 (3). Therefore the said Order XXXV Rule 1 of the Supreme Court Rules is ultravires the

Constitution of India and a nullity.

4.

A judgment passed by this Honble Court in a petition filed under Article 32 of the Constitution of India is final and there is no right of appeal to the aggrieved party. It is trite that as a matter of principle of natural justice, a party should be entitled to atleast one right of appeal on law and facts. In recognition of this basic principle of natural justice, petitioner herein challenges the above rules in so far as relates to judgments passed by this Honble court in writ petition under Article 32 of the Constitution of India. In

view of Order XL Rule 3, the petitioner gets no opportunity of oral hearing.

5.

petition

under

Article

32

in

W.P.

(C)

No.562/2009 was entertained by this Honble Court by a court consisting of 3 judges in accordance with Order XXXV Rule 1 of Supreme Court Rules, 1966. This petition was filed

seeking to stop illegal mining in the State of Karnataka which was highlighted in the Report dated 18-12-2009 of Lokayukta of Karnataka. In the said petition, Central Empowered Committee (hereinafter for short the CEC) was asked to submit a report on the allegations of illegal mining in the Bellary region of the state of Karnataka. The initial reports submitted

indicated large-scale illegal mining and therefore by an order dated 29-07-2011 a complete ban on mining in the district of Bellary was imposed which was later extended to the districts of Tumkur and Chitradurga. Thereafter, a joint team was constituted by an order dated 06-052011 to determine the boundaries of 166 mining leases in the region. Noticing several objections

to the survey conducted by CEC, by an order dated 23-09-2011, CEC was directed to reexamine. Thereafter, CEC submitted their final report dated 03-02-2012 which recommended primarily categorization of the mines into three categories, i.e., A, B and C on the basis of the extent of encroachment in respect of the mining pits and over burden dumps determined in terms of percentage qua the total lease area. The Category A comprised of 45 leases wherein no/marginal illegality have been found. The category B comprised of 72 leases wherein illegal mining by way of mining pits outside the sanctioned lease areas have been found upto 10% of the lease area and/or over burden dumps outside the sanctioned lease areas have been found upto 15% of the total leases areas. The category C mines comprised of 49 leases wherein illegal mining by way of mining pits outside the sanctioned lease areas have been found to be more than 10% of the lease area and/or over burden dumps outside the

sanctioned lease areas have been found to be more than 15% of the total leases areas.

6.

It was further recommended by CEC that in respect of leases falling in A category, mining operations may be allowed to be undertaken after implementation of Reclamation and

Rehabilitation (hereinafter for short R& R) as per the pre-determined parameters. the leases falling in B In respect of CEC

category,

recommended for allowing mining operation only after payment of penalty of Rs.5 Crores per hectare of the area found by the Joint Team to be under illegal mining pit and Rs.1 Crore per hectare of the area found to be under illegal over burden dump and after implementation of R & R.

7. In respect mining leases falling in C Category, it was recommended that (a) such leases should be directed to be cancelled (b) the entire sale proceeds of the existing stock of iron ore to be retained by monitoring committee and (c)

implementation of R & R at the cost of the lessee. It was further recommended that after cancellation of C-Category leases, the same may be allotted through a transparent process to the

highest bidder from amongst the end users. The amount received by allotment of cancelled leases and the from the sale proceeds of the existing stock of iron ore of these leases was directed to be transferred to a Special Purpose Vehicle to be set up for taking ameliorative and mitigative measures. The petitioner is placed in category C.

8. Petitioner was placed in C Category on the basis of alleged (12.38%) encroachment in the form of 13.03 of mining Hectares pit and

encroachment of 17.11 Hectares (16.26%) in the form of overburden dump. In reply to the said final report dated 03-02-2012, petitioner placed several documents on record before CEC to demonstrate the issues involved, which clearly pointed to several omissions on the part of CEC which if considered would place the petitioner in A Category. But CEC failed to take note of any of the issues highlighted by the petitioner and in its report dated 28-03-2012, CEC rejected the contentions of the petitioner summarily without assigning any reasons whatsoever. It is pertinent to mention here that even before the final report

dated 03-02-2012, petitioner had placed all the relevant facts and supporting documents with CEC, which were completely ignored.

9.

The primary contention of the petitioner was that the extent of encroachment as deduced by CEC was on account of following three issues (i) Surrendered area illegally worked by a company called as Vijay Mining and Infra Corp Pvt. Ltd. (hereinafter referred to as VLC) at the instance of Associated Mining Company has been added as encroachment on account of the petitioner (ii) Shifting of the lease area which resulted in workings within the lease area being treated as encroachment and (iii) reduction of lease from 105.22 hectares to 86.12 hectares. If only CEC had considered these issues, the extent of encroachment would have been only about

0.075 Hectares (0.07%) in the form of mining pits and 0.80 Hectares (0.76%) in the form of overburden dumps and the petitioner could have been placed in A Category. A table chart is prepared to clearly depict the way CEC has ignored the documents and issues raised by the

Petitioner. A copy of the said chart produced along with the writ petition as Annexure P-1.

10.

The petitioner has filed a review petition against the impugned judgment dated 18.04.2013

before this Honble Court but in view of Order XL Rule 3, the review petition will be circulated to the learned judges without any opportunity for oral arguments. The petitioner has raised the following issues:a. b. Violation of Principles of Natural Justice: Exceeding the powers under Article 32 /w Article 142 of the Constitution of India; c. No reasons assigned for ignoring all the material placed before the court by the petitioner. d. Deprivation lessees; e. Violation of Article 14 of the Constitution of India: of right of appeal to the

11.

The problem faced by the petitioner is that, under the existing dispensation, no hearing is to be afforded to it in its review petition, however

grave the errors committed by this Honble Court in its judgment. But, what is to be noted is that the judgment of which review is sought was delivered in a writ petition filed under Article 32 of the Constitution of India. No right of appeal lies against the judgment of this Honble Court. The right of review is conferred by the

Constitution itself, under Article l37. The right of review, and that too of a judgment delivered in a petition filed under Article 32 of the Constitution which itself is a Fundamental Right, cannot be emasculated by confining it to a disposal in Chambers. History shows that practically all review petitions are uniformly rejected except, perhaps, in a few cases. It is true that a hearing in open court in the case of every review petition would result in duplicating the large number of cases which are disposed of every year. But Article 32 itself is a Fundamental Right and if grave errors of jurisdiction and of natural justice and of failure to state reasons are present in a judgment of this Honble Court, then, atleast in this category of cases, one would require a hearing atleast to decide whether the grievance

or

complaint

made Right

by

the

party have

whose been

Fundamental

prima-facie

violated by the judgment of this Honble Court warrants notice being issued in the review petition.

12.

In case, the review petition is circulated without oral arguments for disposal, this writ petition will become in fructuous. The Government has taken action to cancel the Mining lease of the petitioner in pursuance of the judgment passed in the writ petition on 18.04.2013 and in case, the same is not stayed, the as writ the petition State will become of

infructuous

Government

Karnataka is taking steps to acution the lease area of the petitioners. PRAYER:In the circumstances, it is prayed that this Honble Court may be pleased to:a) grant an ex parte ad interim stay of the execution and operation of the judgment and order dated 18.04.2013 in Writ Petition

No. 562/2009 of this Honble Court in so far as it relates to the petitioner: b) grant an ex parte ad interim direction directing the review petition filed by the petitioner against the judgment and order dated 18.04.2013 in Writ Petition No.

562/2009 being titled as ) before this Honble Court be listed along with the present writ petition;

c) Issue

such

direction

or

order

as

this

Honble Court may deem fit and proper in the facts and circumstance of the case.

AND

FOR

THIS

ACT

OF

KINDNESS,

THE

PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.

DRAWN BY: Harish V. Shankar

FILED BY:

PLACE : NEW DELHI DRAWN ON:___/12/2013 FILED ON: 17/12/2013

Vadivelu Deenadayalan Advocate for the Petitioner(s)

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION I. A. No. IN WRIT PETITION (C) No. IN THE MATTER OF: M/s Lakshminarayana Mining Company Versus Supreme Court of India Represented by its Registrar Respondent Petitioner /2013 /2013

Application for filing a lengthy synopsis To, The Honble Chief Justice of India and His Companion Justices of the Supreme Court of India

MOST RESPECTFULLY SHOWETH: 1. The petitioner is challenging the constitutional validity of Order XL Rule 3 of the Supreme Court rules in so far as it requires the review petition to be disposed off by circulation without any oral arguments even in case of petition under Article 32 of the Constitution of India. The petitioner

submits

that

the

said

rule

is

arbitrary,

unreasonable, unfair and unconstitutional in case of the review against the judgment and order in petition filed under Article 32 of the Constitution of India, against which there is no right of appeal. The Petitioner challenges

the Constitutional validity of Order XXXV Rule 1 of the Supreme Court Rules, 1966 in so far as it permits a petition filed under Article 32 to be heard and decided by a Division Bench of less than five judges and also makes a distinction between a petition under Article 32 which involve substantial question of law as to interpretation of the constitution and those petitions under Article 32 which do not involve substantial question of law as to interpretation of constitution.

2.

The petitioner has filed a review petition against the impugned judgment dated 18.04.2013

before this Honble Court but in view of Order XL Rule 3, the review petition will be circulated to the learned judges without any opportunity for oral arguments.

3.

It is submitted that the Petitioner is required to provide a detailed synopsis in order to cover all aspects of law and facts relating to this case in order for this Honble Court to appreciate and consider the present matter in its wholesome perspective. Therefore, the synopsis which the Petitioner is required to file with the present SLP is lengthy.

PRAYER:In the circumstances, it is prayed that this Honble Court may be pleased to:a) Allow the present application and permit the petitioner to file a lengthy synopsis.

b) Issue any further such or other direction or order as this Honble Court may deem fit and proper in the facts and circumstance of the case.

AND

FOR

THIS

ACT

OF

KINDNESS,

THE

PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.

DRAWN BY: Harish V. Shankar

FILED BY:

PLACE : NEW DELHI DRAWN ON:___/12/2013 FILED ON: 17/12/2013

Vadivelu Deenadayalan Advocate for the Petitioner(s)

21.

The proper court fees has been paid on the writ petition. PRAYER It is therefore most respectfully prayed that

this Honble Court may be graciously pleased to issue a Writ of Mandamus or appropriate Writ or Writs; i) declaring that Order XL Rule 3 of the Supreme Court Rules, 1966 as un-

Constitutional and violative of Articles 32 and 145, 14 and 21 of the Constitution of India in so far as it relates to disposal of the review petition by circulation without oral hearing by in respect Honble Article of judgments in of writ the

passed petitions

this under

Court 32

Constitution of India; and/or ii) Consequently direct that the Review

Petition being 1943 / 2013 filed by the petitioner be listed in open Court and oral arguments be heard in support of the same;

ii)

To pass such other or further orders or writ as this Honble Court deems fit and proper in the facts and circumstances of the case.

AND

FOR

THIS

ACT

OF

KINDNESS,

THE

PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.

DRAWN BY: Harish V. Shankar

FILED BY:

PLACE : NEW DELHI DRAWN ON:12/12/2013 FILED ON: 17/12/2013

Vadivelu Deenadayalan Advocate for the Petitioner(s)

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