AI Insights
The case involves multiple appellants who participated in open auctions for mining leases conducted by the government in Jammu and Kashmir. The auctions were later scrapped, and the government decided to conduct future auctions through e-auction. The appellants challenged the scrapping of the auctions, claiming that they had fulfilled all necessary conditions and that a concluded contract existed. The court found that the appellants had not met all the conditions within the stipulated time and that the government was justified in scrapping the auctions and switching to e-auction to ensure transparency and prevent cartelization.
Appeal Details
Counselvise Citation
[2020] 140 COUNSELVISE.COM (IT) 695199 (HC-JAMMU)
Assessee PAN
Bench
Appeal Number
CRN Number
Appellant
Respondent
Appeal Type
Others
Pronouncement Date
30-09-2020
Assessment Year
misc
Judgement Text
"HIGH COURT OF JAMMU AND KASHMIR AT JAMMU Reserved on : 26.08.2020 Pronounced on: 30.09.2020 LPA No. 53/2020(Jammu) (EMG-LPA No.2/2020) EMG-CM No.4/2020 (Through Video Conferencing from Jammu) Rakesh Kumar Choudhary .....Appellant Through :- Mr. Vikram Sharma, Advocate (On Video Conference from his residence at Jammu) Mr. Sunil Sethi, Sr. Advocate with Mr. Ravi Abrol, Advocate (On Video Conference from their residence at Jammu) V/s Union Territory of J&K and Others .....Respondent(s) Through :- Mr. F. A. Natnoo, AAG (On Video Conferencing from the High Court at Jammu) LPA No. 56/2020 (Jammu) (EMG-LPA no.5/2020) EMG-CM no.13/2020 (for interim relief) (Through Video Conferencing) Chaman Lal .....Appellants Through :- Mr. P. N. Raina, Sr. Advocate with Mr. J. A. Hamal, Advocate. (On Video Conferencing from office) V/s State of J&K (Now Union Territory of J&K) & Others .....Respondent(s) Through :- Mr. F. A. Natnoo, AAG (On Video Conferencing from the High Court at Jammu) 2 LPA No.53/2020 & connected appeals Page 2 LPA No.61/2020 (Srinagar) CM Nos.1978 & 1977/2020 (Through Video Conferencing from Srinagar) M/s Usman Construction and others .....Appellant Through :- Mr. Altaf Naik, Senior Advocate (On Video Conferencing from High Court at Srinagar) V/s Union Territory of J&K and Others .....Respondent(s) Through :- Mr. F. A. Natnoo, AAG (On Video Conferencing from High Court at Jammu) LPA No.62/2020 (Srinagar) CM Nos.1979, 1980 & 1981/2020 (Through Video Conferencing from Srinagar) M/s Mohammad Ashore and others .....Appellant Through :- Mr. Hakim Suhail Ishtiaq, Advocate (On video conference from High Court at Srinagar) V/s Commissioner/Secretary to Government and Another .....Respondent(s) Through :- Mr. F. A. Natnoo, AAG (On Video Conferencing from High Court at Jammu) LPA no.63/2020(Srinagar) CM Nos.1982, 1983 & 1984/2020 (Through Video Conferencing from Srinagar) Mohammad Farooq Lone & Others .....Appellants Through :- Mr. Hakim Suhail Ishtiaq, Advocate (On video conference from High Court at Srinagar) V/s Union Territory of J&K & Others 3 LPA No.53/2020 & connected appeals Page 3 .....Respondent(s) Through :- Mr. F. A. Natnoo, AAG (On Video Conferencing from High Court at Jammu) LPA No.64/2020 (Srinagar) CM Nos.1936, 1937 & 1938/2020 (Through Video Conferencing from Srinagar) Vikar Ahmad Dar …...Appellants Through:- Mr. Z. A. Shah, Sr. Advocate (On video conferencing from High Court at Srinagar) v/s State of J&K and others …..Respondent(s) Through:- Mr. F. A. Natnoo, AAG (On video Conferencing from High Court at Jammu) LPA No. 58/2020 (Jammu) (EMG-LPA No.7/2020) EMG-CM Nos.16/2020 (Through Video Conferencing from Jammu) Nagar Singh …...Appellants Through:- Mr. Abhinav Sharma, Advocate (On video conferencing from his office at Jammu) v/s State of J&K and others …..Respondent(s) Through:- Mr. F. A. Natnoo, AAG (On video Conferencing from High Court at Jammu) LPA No. 77/2020 (Srinagar) CM No.2361/2020 (Through Video Conferencing from Srinagar) Shahnawaz Ahmad Bhat & anr. …...Appellants Through:- Mr. Vivek Sharma, Advocate (On video conferencing) v/s Union Territory of J&K and others …..Respondent(s) Through:- Mr. F. A. Natnoo, AAG (On video Conferencing from High Court at Jammu) 4 LPA No.53/2020 & connected appeals Page 4 Coram: HON’BLE THE CHIEF JUSTICE (On Video Conference from High Court at Srinagar) HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE (On Video Conference from High Court at Srinagar) JUDGMENT Per Gita Mittal, CJ. “6. Rivers, Forests, Minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the Nation. It is recognised by Parliament. Parliament has declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals. It has enacted the Mines and Minerals (Regulation and Development) Act, 1957.” (Ref: (1981) 2 SCC 205, State of Tamil Nadu vs. Hind Stone and Ors) “9. Natural resources are ‘public goods’ and the Doctrine of Equality must guide the State in determining the actual mechanism for distribution of natural resources. It takes into account the rights and obligations of the State vis- à-vis its people and the demands that the people be granted equitable access to natural resources and they are adequately compensated for the transfer of these resources for public domain and regulation of rights and obligations of the State vis-à-vis private parties seeking to acquire the resources which demands that the procedure adopted and distribution is just and transparent.” 5 LPA No.53/2020 & connected appeals Page 5 [Ref: Original Application No.360/2015, National Green Tribunal Bar Association v. Virendra Singh (State of Gujarat) and connected applications decided on 26.07.2019. (Page 141, Paras 9, 10 & 11)] 1. By way of the instant appeal, a challenge is laid to the common judgment dated 1st May, 2020, passed by the learned Single Judge dismissing 16 writ petitions filed before both the Wings of this Court inter alia challenging the communication of the Department of Industries and Commerce of the Government bearing No.Ind/legal-239/2018 dated 26.02.2019 conveying the approval of the competent authority to the scrapping of the open auction carried under the J&K Minor Minerals Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016 and providing further that fresh auctions would be carried out only through e-auction mode. 2. To avoid conflict of adjudication, a direction was made for clubbing of the writ petitions and placing them before one court, with parties and counsels to be joined on video conferencing, wherever necessary. After detailed hearings, the writ petitions were decided by the common judgment dated 1st May, 2020. Aggrieved thereby the above letters patent appeals came to be filed before both Wings of this Court, which were directed to be consolidated for hearing and adjudication. 3. In view of the Covid-19 restrictions, these appeals have been heard on video conferencing with this Bench holding court in the Jammu Wing. Learned Senior Counsels as well as other counsels have made submissions from Srinagar and Jammu on video conferencing. 4. It is noteworthy that after hearing in the rest of the appeals had concluded and the matter was reserved for judgment on 30th June, 2020, another LPA No.77/2020 came to be filed which was listed before the Court first time on 21st 6 LPA No.53/2020 & connected appeals Page 6 August, 2020. On that date counsel for the respondent could not be joined on account of connectivity issues. The matter was accordingly listed on 26th August, 2020 when counsel for the parties were heard and judgment reserved. Headings 5. We propose to consider the several propositions placed by the parties in seriatim. For expediency, we set down hereunder the headings under which we have considered the challenge. Sr. No. Headings Paragraph Nos. I. Judicial consideration of issues concerning mining of minor minerals and Notifications of MOEF&CC, Government of India 6-45 II. Relevant statutory provisions and the Rule position so far as erstwhile State of Jammu and Kashmir (now Union Territory of Jammu & Kashmir and Ladakh) 46-47 III. Defiance of the law-Rule 104A - a special provision in Jammu & Kashmir 48-94 IV. Chronology of relevant events, submissions of appellants 95-201 V. Appeals pressed on grounds which were not urged before the Ld. Single Judge, examination of official records, opportunity to meet the same 202-229 VI. The consideration by the Government which lead to the decision to scrap the auctions of 2017, issuance of the communication dated 26th February, 2019 and the Amendment to the Rules 230-272 VII. The Working of Rule 104A 273-295 VIII. An important ‘subsequent’ fact-conduct of e- auctions 296-311 IX. Scope of judicial review in administrative action and matters relating to award of contract/ tenders/ auctions 312-327 X. Can the Issue as to whether there is a concluded contract be decided in writ proceedings? 328-344 XI. Whether in these cases there was a concluded contract of the respondents with appellants and whether time was of essence of the contract? 345-399 XII. Whether the respondents had the power to waive or to extend time for compliance with the conditions prescribed in the Rules as notified in the LoI. 400-438 7 LPA No.53/2020 & connected appeals Page 7 XIII. Whether processing of Environmental Clearances was delayed by the respondents and impact thereof 439-486 XIV. Whether the respondents had made a representation and promise to the appellants and would stand estopped from withdrawing from it? 487-509 XV. Cancellation of the entire auction process- permissibility & validity 510-539 XVI. Failure to issue notice to show cause-whether violation of principles of natural justice-impact on impugned decision 540-567 XVII. Failure to give reasons-non compliance with principles of natural justice- whether impacts present cases 568-589 XVIII. Whether any remedial steps with regard to the illegal mining- cost of reparation and compensation- quantification and apportionment of liability? 590-621 XIX. Writ petitions liable to be dismissed for suppressio veri 622-628 XX. Whether the issuance of the Letter of Intent (LoI) resulted in grant of ‘quarrying licence’ or a ‘prospecting licence’ 629-655 XXI. Whether any mining lease at all stands granted? 656-661 XXII. Whether the Learned Single Judge has failed to consider the Rule 55 (10) of SRO 105? If so, effect thereof 662-664 XXIII. Refund of the bid amount-enitlement to in the facts of case 665-675 XXIV. Submission that the amendment to the Rules was prospective and the pending applications of the appellants had to be considered in accordance with the unamended provisions 676-680 XXV. Conclusions 681 XXVI. Result 682 I. Judicial consideration of issues concerning mining of minor minerals and Notifications of MOEF&CC, Government of India 6. Mining Activity, undertaken primarily for commercial reasons, has a far reaching and irreversible impact on the environment. Minor minerals are declared in Section 3(e) of the Mines and Minerals (Development and Regulation) Act, 1957 to include building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in official gazette declare to be a minor mineral. 8 LPA No.53/2020 & connected appeals Page 8 These minor minerals are extracted in large quantities with devastating consequences and has been the subject matter of authoritative judicial pronouncements by the Supreme Court of India as well as the National Green Tribunal. 7. So as to put the matter in perspective, and to understand the context, it is essential to look into the law laid by the Supreme Court of India and orders passed by the National Green Tribunal which have not only controlled parties but led to legislations and Government notifications on matters relating to mining of minerals with which this case is concerned. 8. So far as the relationship between the parties and their rights and obligations are concerned, the statute which has a bearing is the Mines and Minerals (Development and Regulation) Act, 1957. This statute aims at conservation and the prudent and discriminating exploitation of minerals. (Ref.(1981) 2 SCC 205, State of Tamil Nadu v. Hind Stone and Ors.). 9. So far as the framing of Rules in terms of Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 is concerned, on 10th of April, 1962, the Government of Jammu & Kashmir issued the Jammu and Kashmir Minor Mineral Concession Rules 1962 vide SRO 58 of 1962. These rules of 1962 did not contain any provision for Environmental Clearance and contracts for mining were given on ‘first come first served’ basis. 10. On the 27th January, 1994, the Government of India issued a notification SO60(E) laying down pre-requisite condition of having environmental clearance (‘EC’ for brevity) for projects relating to major minerals. This was followed by a notification SO133(E) dated 14th September, 2006 superceding the earlier 9 LPA No.53/2020 & connected appeals Page 9 notification in many regards while laying down the requisite conditions of having ECs for projects provided therein. 11. Removal of minor minerals/boulders/gravels/quarries etc from river beds is recognized as a major cause of environment degradation. It is also considered a threat to bio-diversity resulting from bed degradation, sedimentation, destruction of riverine vegetation, erosion, pollution of water sources, amongst other consequences thereof. Sand mining has also been regarded, as one of the causes of environmental degradation as has been researched in several studies. It is also an established fact that over the years, India’s rivers and riparian eco-systems have been badly effected by the alarming rate of unrestricted sand mining resulting in destruction of natural habitats, the riverine ecology and instability of surrounding physical infrastructure. Indiscriminate sand mining on river beds also results in increased river water salinity which stifles the breeding environment of aquatic life and obstructs migration. 12. Mining Activity by its very nature envisages compliance with environment protection and subordinate legislation. In this regard, Mr. F. A. Natnoo, learned AAG has placed a notification dated 14th September 2006 of the Ministry of Environment and Forests issued under Section 3(2)(1)(v) of the Environment (Protection) Act, 1986 and Rule 5(3)(d) of the Environment (Protection) Rules, 1986, mandating the requirement of prior Environmental Clearance (‘EC’ hereafter for brevity) from the Central Government for certain construction projects under clause (2); and the constitution of a State Level Environment Impact Assessment Authority (referred to as ‘SEIAA’) constituted by the Central Government under Section 3(3) of the Environment (Protection) Act, 1986. Clause (4) has details about the categorization of projects and activities. In Clause (5), the 10 LPA No.53/2020 & connected appeals Page 10 Expert Appraisal Committees (EAC) at the Central Government level and State Expert Appraisal Committees (SEAC) at the State and UT level was mandated to screen and appraise projects or activities. Clause (6) of the notification provides for the nature of applications for Prior EC. Clause (7) provides the manner in which it should be processed. Furthermore, Clause (8) provides for grant or rejection of the prior EC, while clause (9) of the notification provides for validity of the EC. 13. A proposal of auctions by the auction notice dated 3rd June, 2011 for excavation of minor minerals / boulders / gravel/ sand quarries in areas not exceeding 4.5 ha in each case in different districts of Haryana was assailed before the Supreme Court. This challenge was decided on 27th February, 2012 by the judgment reported at (2012) 4 SCC 629, Deepak Kumar and anr. V. State of Haryana. 14. In this case, it was contended that the Environment Impact Assessment (EIA) Notification dated 14th September 2006 of the Ministry of Environment, Forests and Climate Change (MOEF&CC) was being flouted by breaking homogenous areas into land pieces of less than 5 ha in the States of Uttar Pradesh, Rajasthan and Haryana. As the notification did not prescribe the requirement of EC for areas less than 5 ha., no EIAs were being effected for what actually combined into large tracts of land. 15. In its pronouncement on 27th, February, 2012, Deepak Kumar, the Supreme Court noted the sharp increase in the demand for mining in and near stream beds and its impact in the following terms: “9. Extraction of alluvial material from within or near a stream bed has a direct impact on the stream’s physical habitat characteristics. These characteristics include bed elevation, substrate composition and stability, instream roughness elements, depth, velocity, turbidity, 11 LPA No.53/2020 & connected appeals Page 11 sediment transport, stream discharge and temperature. Altering these habitat characteristics can have deleterious impacts on both instream biota and the associated riparian habitat. The demand for sand continues to increase day by day as building and construction of new infrastructures and expansion of existing ones is continuous thereby placing immense pressure on the supply of the sand resource and hence mining activities are going on legally and illegally without any restrictions. Lack of proper planning and sand management cause disturbance of marine ecosystem and also upset the ability of natural marine processes of replenish the sand.” (Emphasis by us) 16. The Supreme Court noted that Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 empowered the State Governments to make rules in respect of minor minerals. While proposals of mining of major minerals typically underwent EIA and EC procedures, similar attention had not been given in case of minor minerals, since the EIA notification of 1994 of the Central Government did not apply to this mining. Furthermore, under the ambit of the EIA notification of 2006, it was only mining of minerals with a lease area of 5 ha and above which required prior EC. 17. It was noted by the Supreme Court that the attention of the Ministry of Environment, Forest and Climate Change (MOEF&CC hereafter) was drawn to the several instances across the country involving damage to lakes, river beds and ground water leading to drying up of water beds and causing water scarcity. It was also brought to notice that this happened on account of quarry/mining leases and mineral concessions granted under the Mineral Concessions Rules framed by the State Governments. The environmental impact of mining of minor minerals was being neglected on account of the area being small despite the fact that the collective impact in a particular area over a period of time could be significant. 12 LPA No.53/2020 & connected appeals Page 12 18. The concerns on account of the impugned auction notices having been issued without a study of the environmental impact of these auctions is noted in Para 11 of the judgment as follows: “11. We find that it is without conducting any study on the possible environmental impact on/in the riverbeds and elsewhere the auction notices have been issued. We are of the considered view that when we are faced with a situation where extraction of alluvial material within or near a riverbed has an impact on the river’s physical habitat characteristics, like river stability, flood risk, environmental degradation, loss of habitat, decline in biodiversity, it is not an answer to say that the extraction is in blocks of less than 5 ha, separated by 1 km, because their collective impact may be significant, hence the necessity of a proper environmental assessment plan.” (Emphasis by us) 19. The Supreme Court had also noted that vide order dated 24th March 2009, the MOEF&CC had constituted a Core Group under the Chairmanship of the Secretary (Environment and Forests) to look into all aspects of the impact on the environment associated with the mining of minor minerals. This Core Group had submitted a report on 29th January 2010 wherein it was clearly indicated that the operation of the mines of minor minerals needed to be subjected to the same strict regulatory parameters as that which applied to mines of major minerals. It also indicated that the definition of ‘minor minerals’ per se required a re-look. In its report, the Core Group had recommended that the States and UTs should see that the mining of minor minerals is permitted only under a strict regulatory regime and is carried out only under an approved framework of a mining plan which should provide for reclamation as well as rehabilitation of people in the mined areas. 20. It appears that the Ministry of Mines, Government of India had also sent out a communication dated 16th May 2011 called the ‘Environmental Aspects of 13 LPA No.53/2020 & connected appeals Page 13 Quarrying of Mining Minerals –Evolving of Model Guidelines’ on the 30th June 2011. Draft Rules being the Minor Minerals Conservation and Development Rules, 2010, had also been put on the website. 21. In Para 24 of the pronouncement of Deepak Kumar, the Supreme Court observed that ‘the Model Rules of 2010 issued by the Ministry of Mines are very vital from the view point of the environment, ecology and bio diversity and therefore the State Governments have to frame proper rules in accordance with recommendations under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957. 22. Grave concern was expressed by the Supreme Court in the following terms. “25. Quarrying of river sand, it is true, is an important economic activity in the country with river sand forming a crucial raw material for the infrastructural development and for the construction industry but excessive instream sand and gravel mining causes the degradation of rivers. Instream mining lowers the stream bottom of rivers which may lead to bank erosion. Depletion of sand in the streambed and along coastal areas causes the deepening of rivers which may result in destruction of aquatic and riparian habitats as well. Extraction of alluvial material as already mentioned from within or near a streambed has a direct impact on the stream’s physical habitat characteristics. 26. We are of the considered view that it is highly necessary to have an effective framework of mining plan which will take care of all environmental issues and also evolve a long-term rational and sustainable use of natural resource base and also the bio-assessment protocol. Sand mining, it may be noted, may have an adverse effect on biodiversity as loss of habitat caused by sand mining will affect various species, flora and fauna and it may also destabilise the soil structure of river banks and often leaves isolated islands. We find that, taking note of those technical, scientific and environmental 14 LPA No.53/2020 & connected appeals Page 14 matters, MoFF, Government of India, issued various recommendations in March 2010 followed by the Model Rules, 2010 framed by the Ministry of Mines which have to be given effect to, inculcating the spirit of Article 48-A and Article 51-A(g) read with Article 21 of the Constitution.” (Emphasis by us) 23. While considering the environmental impact on various rivers and adverse effects on bio-diversity on account of the proposed quarrying, mining and removal of sand (a minor mineral) from instream and upstream of several rivers across the country, the Supreme Court in Deepak Kumar, issued several directions. In paras 28 and 29, the Supreme Court directed the Central Government as well as State Governments in the following terms: “28. The Central Government also should take steps to bring into force the Minor Minerals Conservation and Development Rules, 2010 at the earliest. The State Governments and UTs also should take immediate steps to frame necessary rules under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 taking into consideration the recommendations of MoFF, Secretary, Ministry of Mines, New Delhi; Ministry of Water Resources, Central Government Water Authority; the Chief Secretaries of the respective States and Union Territories, who would circulate this order to the Department concerned. 29. We, in the meanwhile, order that leases of minor minerals including their renewal for an area of less than five hectares be granted by the States/ Union Territories only after getting environmental clearance from MoFF. Ordered accordingly.” (Emphasis supplied) A period of six months was granted to give effect as above. 15 LPA No.53/2020 & connected appeals Page 15 24. In view of the law laid down by the Supreme Court in Deepak Kumar, EC was mandatorily required for all concessions, be it temporary licence or a quarry licence or grant of a mining lease. 25. So how was the judgment of the Supreme Court complied with? 26. In purported compliance of the order dated 27th February 2012 in Deepak Kumar and 13th January 2015 of the National Green Tribunal (NGT hereafter), amendments were effected by the Central Government to the Environment Impact Assessment Notification 2006 dated 14th September 2006 in exercise of the powers under Sections 3(2)(i) and Section 3(2)(v) of the Environment (Protection) Act, 1986 and Rule 5(3) of the Environment (Protection) Rules, 1986. 27. The Central Government issued a notification dated 15th January, 2016 (amending the notification dated 14th September, 2006) constituting a District Level Environment Impact Assessment Authority (DEIAA) under Sub section (3) of Section 3 of the Environment (Protection) Act, 1986. Rule 3A(6) was included in the notification constituting the District Level Expert Appraisal Committee (DEAC). The DEAC was mandated to screen, scope and appraise projects or activities in Category A, B1, B2 and B2 projects of minor minerals. Para 5 of the notification dated 14th September, 2006 was substituted and amended to read that the “same Expert Appraisal Committees at the Central Government, SEACS at the State or Union Territory level and DEAC at the district level shall screen, scope and appraise projects or activity in category ‘A’, ‘B1 and B2’ and ‘B2’ projects for mining of minor minerals of lease area less than and equal to five hectare respectively.” A provision for mandatory prior EC in all cases to be made by the project proponent in the prescribed format was included in para 6. 16 LPA No.53/2020 & connected appeals Page 16 28. In Para 7(iii), preparation of District Survey Report (DSR for brevity) for sand mining or river bed mining and mining of other minor minerals was prescribed. 29. Amendment in the notification to include qualifications and terms for the Experts in DEIAA and DEAC were prescribed in Appendix VII while the procedure for preparation of DSR was provided in Appendix X. 30. Mr. F. A. Natnoo, ld. AAG has drawn our attention to the procedure prescribed which required that a survey is to be carried out by the DEIAA with the assistance of the Geology Department or the Irrigation Department or the Forest Department or the Public Works Department or the Ground Water Boards or the Remote Sensing Department or the Mining Department etc in the district. 31. For the first time, the procedure for EC for mining of minor minerals, including for cluster mining, was prescribed at Appendix XI. This was clearly in terms of the pronouncement of the Supreme Court in Deepak Kumar. 32. It is pointed out that most of the appellants before us fall in the category of 0-5 ha while some are in the less than 10 ha category. As per Appendix XI, this activity fell in the B2 category. EC was required for their mining activity which was to be appraised and granted by the DEIAA/DEAC. 33. So far as the projects which were between 25-50 ha are concerned, approved Mining Plan, [Environment Management Plan (EMP for brevity)] as well as EC was mandatory which was to be considered and granted by the SEAC/SEIAA. 34. On 6th January, 2016, the erstwhile State of Jammu & Kashmir vide SRO 103 issued the Jammu and Kashmir Minor Mineral Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016. 17 LPA No.53/2020 & connected appeals Page 17 35. This was followed with a notification SO141(E) dated 15th January, 2016 issued by the MOEF&CC, Government of India, in compliance of the aforesaid decision of the Supreme Court in Deepak Kumar’s case. 36. Mr F. A. Natnoo, ld. AAG, has also drawn our attention to the notifications dated 20th January 2016 and 1st July 2016 amending the aforesaid notification dated 14th September, 2006 issued by the MOEF&CC. 37. The notifications dated 15th January, 2016, 20th January, 2016 and 1st July, 2016 were challenged before the NGT, Principal Bench, New Delhi by way of O.A.186/2016, Satendra Pandey v. Ministry of Environment, Forest & Climate Change and anr. and several connected petitions. The challenge was inter alia premised on the ground that, in the notification, the B Category projects and activities as stood originally, had been broken into B-1 and B-2 category activities. Mining of minor minerals for areas from 25 ha to 50 ha was within the B-1 category and between 0-25 ha was in B-2 category. 38. The grievance was that in this manner the notification dated 15th January 2016 exempted the B-1 category from the rigour of compliance of obtaining the EIA and approval of EMPs. Whereas in the notification of 2006, these were necessary for all activities from 5-50 ha. It was contended that this was contrary to the mandate of the Deepak Kumar. 39. Additionally, it was complained that projects classified in the B.2 category of 0-5 ha under individual and cluster category, stood exempted from the requirements of preparing an EIA and EMP and that those more than 5 ha and less than or equal to 25 ha, had been exempted from preparing EIA Report which was also beyond what was provided in the notification of 2006. The submission was that EIA/EMP was an integral and critical component of EC whereby potential 18 LPA No.53/2020 & connected appeals Page 18 impact and risk of a project could be assessed and mitigation measures formulated and adopted in the EMP. 40. The NGT considered the matters at length and in Para 9 & 10 of its order dated 13th September 2018 is Satendra Pandey holding as follows: “9. Upon consideration of the fact and circumstances set out in the original application and upon hearing the Ld. Counsel for parties, we find that the impugned Notification dated 15th January, 2016 is not consistent with the decision of the Hon’ble Supreme Court in the case of Deepak Kumar (supra). We find substance in the submissions of the Ld. Counsel for the applicant that while breaking category B of the mines to B-1 & B-2 may not per se be bad, it certainly dilutes the stringent requirement of lease areas up to 25 ha being exempted from the necessity of submitting EIA and EMP for grant of Environmental Clearance. It is undisputed that the impugned Notification is issued with the object to comply with the directions passed in the case of Deepak Kumar (supra). xxxxx 41. The NGT considered the impact of illegal riverbed mining on the banks of River Subarnarekha in Odisha in O.A. No. 173/2018, Sudarsan Das v. State of West Bengal and ors. We notice the proceedings in the case a little later hereafter. 42. The NGT also considered (in Satendra Pandey, 13-09-2018) the requirements under the Sustainable Sand Mining Management Guidelines, 2016 prepared by the MoEF&CC. While considering the correctness of the prescriptions made in the notification dated 15th January 2016 with regard to the splitting of areas, exemptions from EIAs and public hearings, observed as follows: “12. The only contention that require for us to consider in this case is as to whether the Notification dated 15th January, 2016 would satisfy the spirit of the directions issued in the case of Deepak Kumar (supra). As already noted, EIA Notification dated 14th September, 19 LPA No.53/2020 & connected appeals Page 19 2006 under the Schedule provided there to require all mining lease area of equal to and up to 50 ha to seek Environment Clearance requiring to submit EIA for appraisal from the SEIAA. 13. The impugned Notification dated 15th January, 2016, however, would clearly indicate that Category B has been split into category B1 and B2 and again, category B2 has been further split into areas of 0-5 ha and 5-25 ha. Xxxx 15. Introduction of such procedure, in our view, is clearly not consistent with the directions contained in the case of Deepak Kumar (supra) and the spirit behind such direction. By the provision, mining area up to from 5ha to 25 ha has been completely exempted from the EIA and Public Consultation. For areas of 5 ha and below, apart from the exemption, it has been made only subject to a separate procedure of preparing a District Survey Report (DSR).These provisions quite apparently are more mine-centric rather than striving a balance between mining and environment especially with regard to Form-1M which needs to be made more elaborate incorporating environment related aspects.xxxx 17. Thus, even according to the Sustainable Sand Mining Management Policy issued by the MoEF & CC, by dispensing with Public Hearing, the judgment of the Hon’ble Supreme Court in the case of Deepak Kumar (supra) will stand defeated.” (Emphasis by us) 43. The NGT also emphasized the parameters for consideration of the fitness of an area for mining while preparing the District Mining Plan and Report vis-à-vis the EIA. The importance of public hearing for EIA was also highlighted thus: “18. We also find that parameters for consideration while preparing District Mining Plan (DMP) and District Survey Report (DSR)are only for the purpose of ascertaining whether an area is fit for mining which are quite different from the parameters laid down for EIA. The consideration of the view point of the public by keeping DSR in 20 LPA No.53/2020 & connected appeals Page 20 public domain is not a substitute of Public Hearing for consideration of the view point of the public for EIA. xxx xxx xxxx xxxx 21. Dispensing with the requirement of Public Hearing which forms a part of the Public Consultation under Stage-III of the Environmental Clearance process under EIA Notification,2006 for areas measuring 0 to 25 ha for individual mine areas and in cluster situation where public hearing has been provided, has resulted in gross dilution of EIA Notification dated 14th September, 2006. Such dilution would, in our view, result in its misuse by unscrupulous elements and the situation would revert back to the lawless state prevailing prior to the decision in the case of Deepak Kumar (supra). Stringent measures are, therefore, necessary if the rampant exploitation of the minor minerals is to be curbed. This apparently was also the view of the Hon’ble Supreme Court in the case of Deepak Kumar (supra).” (Emphasis by us) 44. On 13th September, 2018, the NGT finally directed as follows: “22. For all these reasons, we direct that the procedure laid down in the impugned Notification be brought in consonance and in accord with the directions passed in the case of Deepak Kumar (supra) by (i) providing for EIA, EMP and therefore, Public Consultation for all areas from 5to 25 ha falling under Category B-2 at par with Category B-1 by SEAC/ SIEAA as well as for cluster situation wherever it is not provided; (ii) Form-1M be made more comprehensive for areas of 0 to 5 ha by dispensing with the requirement for Public Consultation to be evaluated by SEAC for recommendation of grant EC by SEIAA instead of DEAC/DEIAA; (iii) if a cluster or an individual lease size exceeds 5 ha the EIA/EMP be made applicable in the process of grant of prior environmental clearance; (iv) EIA and/or EMP be prepared for the entire cluster in 21 LPA No.53/2020 & connected appeals Page 21 terms of recommendation 5 (supra) of the Guidelines for the purpose of recommendations 6, 7 and 8 thereof; (v) revise the procedure to also incorporate procedure with respect to annual rate of replenishment and time frame for replenishment after mining closure in an area; (vi) the MoEF & CC to prepare guidelines for calculation of the cost of restitution of damage caused to mined-out areas along with the Net Present Value of Ecological Services forgone because of illegal or unscientific mining. 24. It is reiterated that any attempt to split the lease area for the purpose of avoiding the applicable regulatory regime shall be viewed seriously. This in our view will be in the interest of the environment as deliberated in detail in the case of Deepak Kumar (supra) and would also satisfy the Precautionary Principle and the Principle of Sustainable Development contemplated under Section 20 of the National Green Tribunal Act, 2010. 25. The MoEF & CC shall, therefore, take appropriate steps to revise the procedure laid down in the impugned Notification dated 15th January, 2016 in terms of the above directions and observations so that it is conformity with the letter and spirit of the directions passed by the Hon’ble Supreme Court in Deepak Kumar (supra).The applications stand disposed of.” (Emphasis by us) 45. The impact of the judgment dated 13th September 2018 of the NGT was that all ECs became required to be granted by the SEIAA instead of DIAA [Direction in para 22(ii)] and public consultation for all areas of 5-25 ha falling in B2 category at par with category B1 by the SEAC/SEIAA instead of DEAC/DEIAA, was made mandatory. 22 LPA No.53/2020 & connected appeals Page 22 II Relevant statutory provisions and the Rule position so far as erstwhile State of Jammu and Kashmir (now Union Territory of Jammu & Kashmir and Ladakh) 46. Before undertaking an analysis of the factual background and the issues arising in these appeals, let us consider the relevant statutory provisions of the Mines and Minerals (Development and Regulation) Act, 1957, (hereafter referred to as the ‘Act’) as well as the applicable Rules framed thereunder as applicable to the former State of Jammu & Kashmir, now Union Territory of Jammu & Kashmir, against the background of the aforenoticed authoritative and binding pronouncements of the Supreme Court of India as well as the NGT, and in the context of the directions and notifications of the Central Government. This Act was promulgated on 28th of May, 1957 and extended to the whole of India. Section 15 and 23 thereof enabled the State / Union Territory Governments to make rules regarding minor minerals. We extract the relevant provisions hereunder which have a bearing on our consideration. “Section 3. Definitions.- In this Act, unless the context otherwise requires:- Section 3(a) “lease area” means the area specified in the mining lease within which mining operations can be undertaken and includes the non-mineralised area required and approved for the activities falling under the definition of mines as referred to in clause (i). Section 3(c) “mining lease” means a lease granted for the purpose of undertaking mining operations, and includes a sub-lease granted for such purpose. Section 3(d) “mining operations” means any operations undertaken for the purpose of wining any material. Section 3(f) “prescribed” means prescribed by rules made under this Act. 23 LPA No.53/2020 & connected appeals Page 23 Section 3(g) “prospecting licence” means a licence granted for the purpose of undertaking prospecting operations. Section 3(ga) “prospecting licence-cum-mining lease” means a two stage concession granted for the purpose of undertaking prospecting operations followed by mining operations. Section 3(h) “prospecting operations” means any operations undertaken for the purpose of exploring, locating or proving mineral deposits. Section 4. Prospecting or mining operations to be under licence or lease.- (1) No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence, or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder: Provided that nothing in this sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement: Provided further that nothing in this sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, [the Atomic Minerals Directorate for Exploration and Research] of the Department of Atomic Energy of the Central Government, the Directorates of Mining and Geology of any State Government (by whatever name called), and the Minerals Exploration Corporation Limited, a Government company within the meaning of [clause (45) of Section 2 of the Companies Act, 2013(18 of 2013), and any such entity that may be notified for this purpose by the Central Government]:] [Provided also that nothing in this sub-section shall apply to any mining lease (whether called mining lease, mining concession or by any other name) in force immediately before the commencement of this Act in the Union Territory of Goa, Daman and Diu.] 24 LPA No.53/2020 & connected appeals Page 24 [(1-A) No person shall transport or store or cause to be transported or stored any mineral otherwise that in accordance with the provisions of this Act and the rules made thereunder.] No [reconnaissance permit,] prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder. [(3) Any State Government may, after prior consultation with the Central Government and in accordance with the rules made under Section 18, [undertake reconnaissance, prospecting or mining operations with respect to any mineral specified in the First Schedule in any area within that State which is not already held under any reconnaissance permit, prospecting licence or mining lease]. Section 4-A. Termination of prospecting licences or mining lease.- (1) Where the Central Government, after consultation with the State Government, is of opinion that it is expedient in the interest of regulation of mines and mineral development, preservation of natural environment, control of floods, prevention of pollution, or to avoid danger to public health or communications or to ensure safety of buildings, monuments or other structures or for conservation of mineral resources or for maintaining safety in the mines or for such other purposes, as the Central Government may deem fir, it may request the State Government to make a premature termination of a prospecting licence or mining lease in respect of any mineral other than a minor mineral in any area or part thereof, and , on receipt of such request, the State Government shall make an order making premature termination of such prospecting licence or mining lease with respect to the area or any part thereof. (2 ) Where the State Government is of opinion that it is expedient in the interest of regulation of mines and mineral development, preservation of natural environment, control of floods, prevention of pollution or to avoid danger to public health or communications or to ensure safety of buildings, monuments or other structures or for such 25 LPA No.53/2020 & connected appeals Page 25 other purposes, as the State Government may deem fit, it may, by an order, in respect of any minor mineral, make premature termination of prospecting licence or mining lease with respect to the area or any part thereof covered by such licence or lease. (3) No order making a premature termination of a prospecting licence or mining lease shall be made except after giving the holder of the licence or lease a reasonable opportunity of being heard. Section 7- Periods for which prospecting licences may be granted or renewed:- (1) The period for which a [reconnaissance permit or] prospecting licence may be granted shall not exceed three years. (2) A prospecting licence shall, if the State Government is satisfied that a longer period is required to enable the licencee to complete prospecting operations be renewed for such period or periods as that Government may specify: Provided that the total period for which a prospecting licence is granted does not exceed five years; Provided further that no prospecting licence granted in respect of a mineral included in [Part-A and Part-B to] the First Schedule shall be renewed except with the previous approval of the Central Government.] Section 9- Royalties in respect of mining leases.―(1) The holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any 1 [mineral removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee] from the leased area after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral. (2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any 1 [mineral removed or consumed by him or by his agent, manager, 26 LPA No.53/2020 & connected appeals Page 26 employee, contractor or sub-lessee] from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral. 2 [(2A) The holder of a mining lease, whether granted before or after the commencement of the Mines and Minerals (Regulation and Development) Amendment Act, 1972 (56 of 1972) shall not be liable to pay any royalty in respect of any coal consumed by a workman engaged in a colliery provided that such consumption by the workman does not exceed one-third of a tonne per month.] (3) The Central Government may, by notification in the Official Gazette, amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be specified in the notification: 3 [Provided that the Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of 4 [three years]. Section 15 Power of State Governments to make rules in respect of minor minerals - (1) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of [quarry leases, mining leases or other mineral concessions] in respect of minor minerals and for purposes connected therewith. [(1-A)] In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:- (a) The person by whom and the manner in which, applications for quarry leases, mining leases or other mineral concessions may be made and the fees to be paid therefor; (b) The time within which, and the form in which, acknowledgement of the receipt of any such applications may be sent; (c) The matters which may be considered where applications in respect of the same land are received within the same day; 27 LPA No.53/2020 & connected appeals Page 27 (d) The terms on which, and the conditions subject to which and the authority by which quarry leases, mining leases or other mineral concession may be granted or renewed; (e) The procedure for obtaining quarry leases, mining leases or other mineral concessions; (m) The reports and statements to be submitted by holders of quarry or mining leases or other mineral concessions and the authority to which such reports and statements shall be submitted. 47. The provisions of the Jammu and Kashmir Minor Mineral Concession Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016 which have been relied upon before us, for expediency, are extracted below: Chapter I-Preliminary “ xxxx Rule 2(xi) Competent Authority means the authority competent to grant of mining lease under rule 42 of these rules. Rule(xii) Competitive Bid means an amount offered by the participants in the open auction under these rules. Rule 2(xxii) Environment Management Plan (EMP) means a plan submitted by Lessee or Licencee falling in a cluster which is prepared by Recognized Qualified Person approved by the Environment Committee of Government of Jammu and Kashmir for providing environmental safeguards. Rule 2(xxiii) Excavation means extraction or digging and or collection/removal of minor minerals from any land, river, nallah, canal or hillock. Rule 2(xxxiii) Letter of Intent (LoI) means a Letter of Intent issued to the successful bidder on acceptance of the bid/application for grant of a mining lease, quarry licence. Rule 2(xxxvi) Minor Mineral Block means an area not less than 05 hectares and nor more than 50 hectares in a continuous stretch of land/water body, having defined limits with the evidence of one or more minor minerals than can be feasibly exploited. 28 LPA No.53/2020 & connected appeals Page 28 Rule 2(xxxvii) Minor Mineral Plot means an area not less than 01 hectares and not more than 05 hectares in a continuous stretch of land/water body, having defined limits with the evidence of one or more minor minerals that can be feasibly exploited. Rule 2(xxxviii)Minor Concession means a Mining Lease, Mining Licence, Quarry Licence, Short Term Permit and Disposable Permit in respect of minor mineral permitting the mining of minor mineral in accordance with these rules. Rule 2(xL) Mining Lease means a lease granted under these rules to undertake excavation and to carry away any minor mineral specified therein. Rule 2(xLii) Mining Plan means a plan prepared by a Recognized Qualified Person (RQP) on behalf of mineral concession holder of minor mineral and includes progressive and final mine closure plans duly approved under these rules and without which mining activity cannot be undertaken. Rule 2(xLviii) Open auction/e-auction Open Auction or e-auction means bidding by the competitors online or through physical presence before the auction committee for grant of mineral concessions. Rule 2(Liv) Quarry means any area declared as such by the Director or Officer Incharge as authorized by the Government in this behalf. Rule 2(Lv) Quarry Licence means a licence granted under these rules to excavate minor mineral from any specified mineral deposit or plot. Rule 2(Lxv) Unauthorized Mining means any mining operation undertaken without any valid mineral concession granted under the Act and rules made thereunder. Chapter II Grant of Minor Mineral Concession Rule 6. Mining Plan as a pre-requisite to the grant of minor mineral concession.- (1) No person shall be granted any minor mineral concession in any area under these rules unless a mining plan is submitted and approved under the provisions of these rules: 29 LPA No.53/2020 & connected appeals Page 29 Provided that no such plan shall be required for short term permit or disposal permit as defined in these rules. (2) No person shall commence mining operations for minor minerals in any area except and in accordance with a mining plan approved under these rules. Rule 11. Registration of Recognized Qualified Person (RQP).- (1) No person shall be registered as a Recognized Qualified Person by the Director, unless he possesses.- (i) a degree in Mining Engineering or a postgraduate degree in Geology granted by a University established or incorporated by or under an Act of the Parliament or Act of State Legislature or any institution recognized or incorporated by the University Grants Commission established under section 4 of the University Grants Commission Act, 1956 (3 of 1956) or any qualification equivalent thereto granted by any University or Institution outside India and possessing a professional experience of five years of working in a supervisory capacity in the field of mining or mineral administration after obtaining degree; or (ii) a three year full time diploma certificate in Mining Engineering awarded by a State Technical Education Board or a University or Authority recognized by the Govt. of India and possessing professional experience of 10 years of working in a supervisory capacity in the field of mining or mineral administration after obtaining the diploma. (2) Any person possessing the qualification and experience as prescribed under sub-rule(1) may apply to the Director, for registration as a Recognized Qualifying Person along with a fee of Rs.10,000/- (Rupees ten thousand only). (3) The Director may, after making such enquiry as deemed appropriate, grant or refuse registration and where registration is refused, the Director shall record the reasons therefore in writing and communicating the same to the applicant. (4) The registration granted under sub-rule (2) shall be valid for a period of 10 years. 30 LPA No.53/2020 & connected appeals Page 30 (5) The registration can be renewed on filing of application and deposit of such fee as may be prescribed, from time to time, for a further period of 10 years. Rule 12. Approval of Mining Plan/Scheme of Mining. (1) The Government or any Officer authorized by the Government in this behalf shall approve the mining plan or such modified mining plan or scheme of mining with or without any modification within a period of forty-five days from the date of receipt or submission of such application for approval of mining plan or modified mining plan or scheme of mining, as the case may be. (2) The officer authorized by the Government for purposes of approving the mining plan/scheme under sub-rule (1) shall possess the qualifications as prescribed under clause (XLVII) of rule 2 of the rules. Chapter III-Environmental safeguards Rule 13. Protection of Environment.- Every holder of minor mineral concession shall take all possible precautions for the protection of environment and control of pollution while conducting mining operations in the minor mineral concession area: Provided that the concessionaire shall submit the Environment Clearance from the District Environment Committee in respect of his minor mineral concession area as per the notification issued by Ministry of Environment and Forests (MoEF), GoI from time to time. Provided that no such clearance shall be required in case of Short Terms/Disposal Permit issued to the State Government/Central Government agencies. Rule 15. Environment Management Plan for Cluster of Quarries. (1) For a cluster, Environmental Management Plan shall be collectively prepared by the minor mineral concessionaire of the cluster through a recognized qualified person and submitted to the District Environment Committee for final approval by the Government or the authorized officer of the Government in this behalf separately. 31 LPA No.53/2020 & connected appeals Page 31 (2) Environment Clearance is to be sought from the Ministry of Environment, Forest and Climate Change (MoEFCC), Government of India in case of mining area/cluster is 50 hectares or more and from the State Level Environment Impact Access Authority (SIEAAs) for such areas/clusters less than 50 hectares, as per Impact Assessment Notification, 2006 with amendment of 2009 and memorandum issued by MOEFCC, GoI of May 18, 2012 for areas less than 5 hectares and such other amendments as may be notified from time to time. Chapter IV-Grant of Mining Leases Rule 26. Restriction on grant and renewal of Mining Lease.–– (1) No Mining lease shall be granted by the competent authority unless the authority is satisfied that there is evidence to show that the area for which the lease is applied for has occurrences of minor mineral. (2) No lease shall be granted or renewed by the competent authority unless there is a mining plan duly approved under these rules and environmental clearance has been obtained by the applicant irrespective of the size of the mining area. Rule 27. Procedure for grant of mining lease.––Any minor mineral deposits may be granted for a mining lease by the Competent Authority for a period of not less than 05 years but not exceeding 15 years depending upon the nature of the mineral deposit: Provided that where minerals are deposited I the State land, the lease shall be granted after following an open auction process as provided under Chapter-VI of these rules excluding: Provided also that where the minerals are not deposited in the State and, permission shall be granted to the owner of the (Private Land) or his authorized representative for mining/extraction only after fulfilling the criteria provided under the provisions of these rules – (i) the quarry areas ancestrally occupied and certified by the revenue authorities in this regard; and (ii) areas earmarked for operation by such public sector undertaking as the Government may direct: 32 LPA No.53/2020 & connected appeals Page 32 Provided further that Director shall constitute one or more Committees for identification of minor mineral blocks having an area not less than 05 hectares but not more than 10 hectares which shall be put to open auction after approval from the competent authority. Rule 28. Application for grant or renewal of mining lease of minor minerals.- (1) Every application for grant of mining lease shall be made to the authorized officer in Form ML1. (2) Every application for renewal of mining lease shall be made to the authorized officer at least 12 months before the date of expiry of such lease in Form ML2. (3) Every application made under sub-rules (1) and (2) above shall be accompanied by, - (i) a non-refundable fee of Rs.50,000/ ; (ii) a plan of the area on suitable scale connecting one or more of the corner pillars with a fixed reference point in vicinity with accurate bearings and distances and descriptions of the area applied for and incorporated with title verification of the land; (iii) a copy of No Due Certificate from officer authorized by the Government in this behalf: Provided that where any injunction has been issued by the Court or any other authority staying recovery of any dues, the non-payment thereof shall not be treated as a disqualification for the purpose of granting or renewing the lease: Provided further that No Due Certificate shall not be required where a person has furnished an affidavit certified by a Civil Court to the satisfaction of the department stating that he or any member of his family does not or did not hold a mining lease or any other type of mineral concession and no dues or the department are outstanding against him or any member of this family. (iv) an affidavit giving particulars of mineral-wise area already held under mining lease/prospecting licence/quarry licnence, - (a) by the applicant; or 33 LPA No.53/2020 & connected appeals Page 33 (b) with any person having joint interest; or (c) already granted but not yet executed/registered; or (d) already applied but not yet granted. (v) Income Tax Clearance Certificate/Income Tax Return of the previous year; (vi) Copy of ADHAR Card and PAN Card. Rule 31. Renewal of Mining Lease applications and mining leases. – The competent authority may refuse or grant or renew any mining lease subject to reasons to be recorded and communicated to the applicant in writing. Rule 40. Execution of Lease.- (1) Where the lease has been granted or renewed under these rules, the lessee shall pay demarcation fee, deposit the security alongwith one quarterly installment of annual dead rent and submit requisite stamps for execution of formal lease deed in Form ML10 within 30 days from the date of issue of order of grant. (2) The lease deed shall be executed within three months from the date of issue of order of grant and the Director shall sign the lease. (3) The lease deed shall be got registered by the lessee within a period of one month from the date of execution of the lease deed and registered lease deed shall be submitted immediately to the Director. (4) Where the grantee fails to comply with the provisions of sub-rules (1), (2), & (3) above, the order granting the lease shall be deemed to have been revoked and amount of security and dead rent deposited by him shall stand forfeited: Provided that if the grantee applies before expiry of 30 days specified in sub-rule (1) for extension of time for completing the formalities mentioned therein, the competent authority may allow further time not exceeding 30 days it is is satisfied that there are sufficient reasons to believe that the grantee is not responsible for the delay in the execution/ registration/submission of lease deed. The competent authority may permit the execution/registration/ submission and return of the lease deed within a reasonable time after expiry of aforesaid 34 LPA No.53/2020 & connected appeals Page 34 period subject to payment of penalty @ 10% of annual dead rent for every month of delay or part thereof. (5) After the registration of duly executed lease deed under sub rule (2) the Director or the Officer authorized by the Government shall make arrangements at the expenses of the lessee for demarcation of the granted area: Provided that where the competent authority feels it necessary to demarcate the area before issuing an order of grant for mining lease, it may ask the applicant to deposit the demarcation charges as may be determined within time specified by him and get the area demarcated: Provided further that if the applicant fails to deposit demarcation charges within the period specified in this regard by the competent authority, the order for grant of lease shall stand cancelled. Rule 42 Authority to granting Mining Lease. - The authority to grant mining lease renew/terminate/transfer shall be Director for an area up to 10 hectares. Chapter V-Grant of Quarry Licence Rule 44 Procedure for grant of Quarry Licence. - Any minor mineral deposits which in the opinion of the Director are to be operated under Quarry Licence, he may grant such licence for a minimum period of the years which may extend up to five years. The lease/quarry licence shall be renewed after expiry of five years and the area shall be put to auction after expiry of the period of lease/licence: Provided that where minerals are deposited in the State Land, the lease shall be granted after following an open auction process as provided under Chapter-VI of these rules excluding: Provided also that where the mineral does not vest with the Government (State Land), the licence for mining/extraction shall be granted to the owner (Private Land) or his authorized representative after fulfilling required conditions and procedure as provided under these rules. (i) The quarry areas ancestrally occupied and certified by the revenue authorities in this regard; and 35 LPA No.53/2020 & connected appeals Page 35 (ii) areas earmarked for operation by such public sector undertaking as the Government may direct: Provided further that the Director shall constitute one or more Committee for identification of minor mineral plots having a minimum area of 1 hectare and not exceeding 05 hectares which shall be put to open auction after approval from the Competent Authority. CHAPTER-VI Auction Rule 52 Grant of Mining Lease/Quarry Licence.-Mining leases and quarry licences shall be granted only through a process of open auction by the authority competent to grant lease/licence: Provided that the mining leases through open auctioin up to 5 hectares shall be granted only to permanent residents of Jammu and Kashmir State and above 5 hectares, preference will be given to State subject either individually or in Joint Venture with non-residents. Rule 53 Auction Committee.- In each district grant of mining concessions shall be conducted through auction by a Committee consisting of following officers:- 1. Dy. Commissioner concerned or an officer authorized by him not below the rank of Additional Deputy Commissioner (Chairman) 2. Superintending Engineer (R&B) or an officer authorized by him not below the rank of Executive Engineer (Member) 3. District Treasury Officer (Member) 4. Executive Engineer (I&FC) (Member) 5. Officer of the department not below the rank of (Member) 36 LPA No.53/2020 & connected appeals Page 36 Deputy Director/Mining Engineer 6. Officer Incharge of the department of the concerned district (Member) Rule 55 Terms and conditions for grant of Mineral Concession through auction.- “(1) The auction of mineral concession area shall be conducted at the District headquarter of the concerned district by the Chairman of the auction committee in presence of its members. xxxxxxxx xxxxxxxxxxx xxxxxxxxxxxx (6) The Chairman shall conduct the auction in the peaceful manner and may direct any bidder to leave the auction premises in the event of misbehavior during the course of auction and shall reject his bid or, if necessary, debar him for a period of three years from the date of misbehaving for grant of any Concession under these rules including forfeiture of earnest money deposited by such bidder. (7). On completion of the bid process i.e. fall of the hammer, the Chairman may provisionally accept or reject the highest bid offered or received during the auction proceedings and shall send his recommendations to the Director. The highest bidder shall have to deposit 50% of the bid amount after completion of the auction process: Provided that in case the auction proceedings are not conducted under the Chairmanship of Deputy Commissioner, the recommendations as required under clause (6) above shall be made with the approval of the Dy. Commissioner concerned. (8) No highest bid shall be regarded as accepted unless approved by the Director in case the highest bid is up to Rs.150.00 lacs and by the Government in case the highest bid is above Rs.150.00 lacs. 37 LPA No.53/2020 & connected appeals Page 37 (9) Once a bid is provisionally accepted, Director shall issue Letter of Intent (LoI) to the concerned bidder to complete the formalities as required for the grant of mining lease or quarry licence under these rules within a period of six months including deposition of remaining bid amount. The concerned bidder shall not extract or allow any extraction till such mining lease or quarry licence is granted. (10) The bid amount offered by the successful bidder shall be considered as guarantee amount for grant of such mineral concession.” III Defiance of the law-Rule 104A - a special provision in Jammu & Kashmir 48. There is one additional and unique event which took place in the erstwhile State of Jammu and Kashmir. The order dated 27th February 2012 of the Supreme Court of India in Deepak Kumar was forwarded by the Additional Registrar of the Supreme Court of India to the then State Government. Steps were to be taken to comply with the orders of the Supreme Court; the Report of 2010 of the MOEF&CC and the Model Guidelines framed by the Ministry of Mines. Deliberations commenced in the concerned Departments of the State which continued from 2012 to 2016. Draft Rules though framed, remained under consideration for several years interse the various authorities. We find that issues relating to minor mineral’s concessions were receiving close attention in the Geology and Mining Department which was concerned with the matter. 49. The respondents have placed their original file No.IND/Legal-27/2013-II before us. From these records of the respondents with regard to the Rules, we find a statement of Financial Commissioner (I&C) dated 12th February 2015 (at page 49 to 51) of the note sheet in the file, to the effect that State of Jammu and Kashmir 38 LPA No.53/2020 & connected appeals Page 38 stood “endowed with mineral resources covering an area of 13334 sq. Kms, out of which 60% are reported to be commercially viable for mining of various minerals.” 50. With regard to the nature of the State’s mineral wealth, para 141[part of the above noting dated 12.02.2015 of the Financial Commissioner (I&C)] in the note sheet while forwarding the Draft Rules is enlightening. It is to the following effect: “141. The Department of Geology and Mining, Jammu & Kashmir, was established in 1960 to identify/locate minerals like Limestone, Gypsum, Marble, Lignite, Granite, Bauxite, Coal, Magnesite, Slates, Sapphire, Dolomite, Borax, Graphite, Quartzite etc. A number of Cement based Industries as well as units for manufacture of plaster of Paris, Marble and Granite cutting units, have been established in the State. The Geology and Mining Department is authorized to receive the royalty on the extraction of major as well as minor minerals as per the scheduled rates, fixed by the Central Government in respect of major minerals and State Government in respect of minor minerals. There are large minor mineral deposits available within the State with huge potential for commercially viable exploration and industrial use.” 51. Vide SRO 58 of 1962 dated 10th April 1962, J&K Minor Mineral Concession Rules, 1962 were framed and issued. These Rules also governed grant of short term quarry permits, contracts in respect of the minor minerals and royalty collections besides containing provisions for grant of certificates of approval, prospecting licences and mining leases. 52. Interestingly, as noted above, these Rules prescribed grant of these licences on ‘first come first served basis’ and were made as per the needs at that point of time. For instance, the rate of royalty at the time of notification dated 10th April 39 LPA No.53/2020 & connected appeals Page 39 1962 had to be calculated as per mules, horses and donkeys which, with passage of time, had become redundant and meaningless. 53. Before the Srinagar Wing of this Court, the issue of non-compliance with the judgment of the Supreme Court was also raised inter alia in PIL no. 1553/2011, Sofi Arif Maqbool v. State and others; PIL no. 10/2012 and OWP no. 461/2011. 54. In Sofi Arif Maqbool, the Court granted limited time period for formulation/issuance of these rules. 55. After a detailed deliberation, the rules which were finalized i.e. Jammu & Kashmir Minor Minerals Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2015, were assigned the number SRO 98 dated 31st March 2015 but not issued or published. These Rules were subject to amendment with regard to conferment of powers for grant of leases, fixation of royalty and other terms. 56. Thereafter SRO 3 of 2016 dated 06th January 2016 notified the Jammu and Kashmir Minor Minerals Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016 after seeking inputs from the relevant departments, in exercise of power conferred by Section 15 read with Section 23-C of the Mines and Minerals (Development and Regulation )Act, 1957. 57. This Government Order was assailed before this Court in OWP No.283/2016, Surat Singh v. State of J&K and anr, complaining that these Rules were unconstitutional. 58. We stand informed that almost four years after the pronouncement of the Supreme Court in Deepak Kumar, the J&K State Government withdrew SRO 3 of 2016 dated 1st January, 2016 and on 31st March 2016, by a notification SRO 105 40 LPA No.53/2020 & connected appeals Page 40 issued the J&K Minor Minerals Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016 (Rules of 2016 hereafter). By virtue of Rule 108 of these Rules, the Jammu and Kashmir Minor Mineral Concession Rules, 1962 and the Jammu & Kashmir Minor Minerals Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2003 were repealed. 59. As per SRO 105, a mining lease/quarry licence could be granted only by an open auction. These Rules were issued after inputs/ concurrence from Finance, Forest and Irrigation and Flood Control Departments and approval by the then Governor. 60. After the notification of the above Rules of 2016, an unusual discussion is to be found in the original record which led to the issuance of Rule 104 A as a transitory provision in the Rules. The file contains a noting dated 7th April 2016 (page 115) of the Deputy Secretary, I& C to the following effect: “322. Noting from para 318 onwards. It may be mentioned here that J&K Minor Mineral Concession Rules notified vide SRO 105 dated 31-03-2016 where- under every mining leases/quarry licences are to be granted through open auction only. The Department have already conveyed approval for conducting of auction of Minor mineral blocks of various districts of the State. 324. The Director, G&M has requested that since the process will take considerable time because the successful bidder has to obtain several clearances/approvals like Mining Plan, Environmental Clearances etc, therefore, Directorate of G&M may be authorized to issue permission to the existing quarry holders/extractors/consumers including projects of National/State importance and also to royalty from carriers on spot for a period of one year as a breathing period. 41 LPA No.53/2020 & connected appeals Page 41 Since rules does not permit such breathing time, it needs relaxation by the competent authority.” (Emphasis by us) 61. Based on this noting, a draft amendment to the Rules was prepared proposing a transitory provision to be incorporated in the J&K Minor Minerals Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016 allowing the department to issue necessary permission for extraction of minor minerals to existing quarry licencees, extractors and consumers and also for transportation of such minerals on royalty basis for a period of six months or till grant of concession under the Rules of 2016. 62. We find a noting of the Law Department in para 329 dated 15th April 2016 that the purpose of this draft was to ‘allow breathing period of six months to the department to switch over to the new regime which required open auction of minerals’. 63. It appears that the learned Advocate General of the State considered the issue in the light of the pronouncement of the Supreme Court dated 27th February 2012 and opined as follows: “In my opinion, the proposed SRO, if approved, should only by way of one time exception, that too as a last resort under the compelling circumstances otherwise its continuation would in breach of the guidelines of the Hon’ble Supreme Court of India. I am also of the opinion that the maximum period during which Rule 104-A may remain operative should not exceed more than eight weeks from the date of its commencement.” 64. We are appalled that violation of an authoritative and binding judgment of the Supreme Court could be legally advised. Despite admitted knowledge of the 42 LPA No.53/2020 & connected appeals Page 42 clear dicta of the Supreme Court, with impunity the Government of Jammu and Kashmir vide SRO 133 of 2016 dated 20th April 2016 (page 350 CF) effected a crucial amendment to the Rules of 2016 by inserting the following as Rule 104-A in the Rules of 2016: “104-A. Transitory Provision – As a transitory measure and in order to ensure uninterrupted supply of minor minerals to the consumers, the department may issue permission valid up to 31st of July, 2016 for extraction of minor minerals to any existing quarry holder or to any person extracting such minor minerals or for transportation of such minerals on royalty basis.” (Emphasis by us) 65. The above Rule thus permitted short term permits with compliance with the explicit requirements of sanctioned mining plans and EC against payment of advance royalty to: (i) the existing quarry holders; (ii) Or any other person extracting such minor minerals. (iii) On spot collection of royalty at check points against the actual dispatches from any person transporting such minor minerals. 66. Noticeably the only purpose of this transitory provision was to ensure ‘uninterrupted supply of minor minerals to the consumers’. 67. Unfortunately the respondents did not follow even the advise of the Advocate General dated 27th February 2012 that Rule 104A should only be a “one time exception”. In brazen defiance of the law, the respondents proceeded to issue orders extending Rule 104-A as follows: S. No. By SRO No. & date Rule 104-A extended up to (i) SRO 269 dated 12.8.2016 31st March 2017 43 LPA No.53/2020 & connected appeals Page 43 (ii) SRO 163 dated 03.04.2017 30th June 2017 (iii) SRO 265 dated 30.06.2017 30th September 2017 (iv) SRO 375 dated 11.09.2017 31st December 2017 (v) SRO 31 dated 23.01.2018 31st March 2018 (vi) SRO 161 dated 06.04.2018 30th June 2018 (vii) SRO 164 dated 11.04.2018 30th June, 2018 (viii) SRO 424 dated 20.09.2018 31st December 2018 (ix) SRO 93 dated 01.02.2019 28th February 2019 68. Rule 104-A has, therefore, not been treated as a transitory provision so far as the categories of persons covered thereunder are concerned but actually enables extraction and transportation of the minor minerals without completion of the prescribed process, preparation of mining plan and without obtaining EC. 69. In a noting dated 30th August 2017 (in paras 465-466 of the official record), it is observed that the department has obtained approval of the Chief Minister for the extension of the transitory provision with effect from 01.04.2017 till 31.03.2018 and it was decided that the transitory provision “shall be issued in a phased manner to bring pressure on subordinate staff to complete the auction process”. 70. Completely untenable grounds for extension of its validity thus are found on the official record. The respondents have utilised the shield of interim orders in OWP No. 572/2016, M/s Upkar Stone Crusher and other v. State and anr., and their inability to conduct auctions for proposing to extend the provisions from 1st April 2017 to 31st March 2018. Whereas efforts ought to have been made to seek final adjudication in Upkar Stone Crusher. 71. Interestingly, one of the note sheets dated 10th April 2018 (para 544, page 161 of the Govt. file) notes that the recommendation was for extension of the transitory provision in favour of successful bidders having approved mining plans 44 LPA No.53/2020 & connected appeals Page 44 ‘ancestrally occupied quarry belts/clusters and for emergent nature works/projects of the State and national importance and not to all persons.’ 72. Para 545 thereafter records that “due to oversight the transitory provision has been extended to all existing quarry holders or any person extracting such minor mineral or for transportation of such minerals on royalty basis”. 73. In view thereof, another significant development deserves to be noted. It is important to note that a Govt order SRO 164 dated 11th April 2018 was issued by the official respondents in purported exercise of powers under Section 15 read with Section 23-A of the Act of 1957 expanding the applicability of Rule 104 A. This order directed that the existing Rule 104-A shall be substituted by the following: “104-A. Transitory Provision – As a transitory measure Rule 104-A is extended upto 30th June, 2018 in favour of the successful bidders having approved mining plans, ancestrally occupied quarry belts/clusters and for emergent nature works/projects of Central and State Government to lift and transport minor minerals on royalty basis in order to ensure uninterrupted supply of minor minerals to the consumers”. (Emphasis supplied) Thus, the benefit under Rule 104A was extended to “successful bidders” and “ancestrally occupied quarry belts/ clusters”, again in blatant violation of the law. 74. Mr Sethi, learned Senior Counsel, represents eight persons who had filed CMP No.1038/2020 in OWP No.363/2019 before the learned Single Judge seeking impleadment as party respondents on the ground that they were vitally interested in the outcome of the writ petitions for that they favour the decision of the Government to allot mining leases only by e-auction. The applicants were permitted to intervene in the matter. For this reason we have also permitted 45 LPA No.53/2020 & connected appeals Page 45 intervention by these applicants and heard Mr Sunil Sethi, Senior Advocate, on their behalf. 75. Mr Sunil Sethi, ld. Senior Counsel, has challenged the authority, power and jurisdiction of the then State Government to enact Rule 104-A. 76. Mr Sunil Sethi, has placed reliance on the pronouncement of the Rajasthan High Court dated 9th April 2019 in Civil writ No. 2996 of 2018, Bajri Lease Lol Holders Welfare Society & Ors. Vs. State of Rajasthan & Ors. In this case, a challenge was laid to the vires of sub rule 4 of Rule 5 of the Rajasthan Minor Mineral Concession Rules 2017 which provided that in cases covered by Rule 5, the conditions of Letter of Intent (LoI) including execution and registration of the mining lease, shall be fulfilled within a period of one year from the date of commencement of the Rules of 2017 failing which the right of the LoIs shall be forfeited and in such cases it would not be mandatorily for the Government to issue any order in this regard. 77. The rules were amended by the Government of Rajasthan after the judgment of the Supreme Court in Deepak Kumar in 2017. The pivotal question which was considered by the court was whether the LoI issued in favour of the petitioners who were successful bidders under the Rules of 1986, created any vested right in their favour which though protected under Rule 5 (2) of the rule, was adversely effected by Rule 5 (4) which restricted the time limit for fulfillment of the conditions of the LoI within a period of one year from the date of commencement of the Rules of 2017. On failure of the bidder to comply with the LoI terms, the rules postulated forfeiture of the application fee, premium amount and performance deposit automatically. Placing reliance on the pronouncement of the judgment Rishi Kirin 46 LPA No.53/2020 & connected appeals Page 46 Logistics Private Limited; Bhushan Power and Steel Limited Hind Stone and Ors., the Rajasthan High Court was of the view that the Rule 5(3) and 16(4) postulated opportunity of hearing on the question of forfeiture of the application fee on account of non-fulfillment of the conditions of the LoI within the stipulated period. It was held that as such rule 5 (4) of the rules of 2017 deserves to be declared as constitutionally valid and the writ petition was dismissed. 78. Mr Abhinav Sharma, ld. counsel has pointed out that the judgment of the Division Bench of the Rajasthan High Court stands assailed before the Supreme Court of India by way of SLP(C) No. 3486/2020 and an interim order dated 20th February, 2020 has been passed therein. 79. Rule 104A was relied upon by the appellants before the Ld. Single Judge in support of their submission that once the respondants had realized the difficulty in obtaining EC, it was unfair to scrap the whole process in one go without good reason. In para 75 of the impugned judgment, the Single Judge, while discussing the impact of substitution of Rule 104A as issue No. (vi), has held that Rule 104A was not only in violation of the provisions of the Act of 1957 and the rules framed thereunder but was a clear affront to the Environment (Protection) Act, 1986 and the Rules framed thereunder. 80. It has been urged by all Counsels appearing in these appeals that there was no challenge to the constitutionality and legality of Rule 104-A in the writ petitions and that the learned Single Judge had no jurisdiction to comment as above thereon. This submission is to be noted only for the purposes of rejection. 81. It is urged that the respondents were supporting the incorporation and working of Rule 104A on court record. Our attention is drawn by Mr P.N. Raina, ld Senior Counsel to a response of the official respondents in OWP 1176/2018, 47 LPA No.53/2020 & connected appeals Page 47 Radha Krishan and others vs Union of India & others defending the validity of Rule 104 A in the following terms: “xxiv. That it is respectfully submitted that since the auction process in terms of the new scheme enunciated vide SRO 105 of 2016 was to take time and in order to ensure uninterrupted supply for developmental works of State and Central Government agencies besides feeding raw material to the minor mineral based units, the Government of Jammu and Kashmir has brought amendment to the extent of incorporating a transitory provision in the shape of Rule 104-A vide SRO 133 of 20.04.2016 thereby authorizing the answering respondent-Department to issue permission valid upto 31st of July, 2016 to any existing quarry holder or to any person extracting such minor minerals on royalty basis. It is submitted that the time frame fixed in the aforesaid SRO’s No. 269, 163 and 265, 375 & SRO No.31, came to be extended, copies whereof are enclosed herewith and marked as Annexure-XXI collectively. It is submitted that the extensions as above were continued by virtue of the aforesaid SRO’s till March, 2018.” (Emphasis by us) 82. The above defence of their actions by the respondents to Radha Krishan is of no legal consequence or effect. 83. We are informed that during the pendency of the writ petitions before the Ld. Single Judge, the petitioner in OWP No. 1176/2018 Radha Krishan v. Union of India, filed an application being CM 677/2020 seeking withdrawal of the petitioner on the ground that petitioners were no more interested in prosecuting the matter. In this background, on 3rd February, 2020, the writ petition was dismissed as withdrawn. 84. We have extracted above the relevant statutory provisions. We find that Section 4(1) of the Mines and Minerals (Development and Regulation) Act, 1957 48 LPA No.53/2020 & connected appeals Page 48 (Act of 1957) unexceptionally prohibits undertaking any reconnaissance, prospecting or mining operations in any area except under and in accordance with the terms and conditions of a mining lease granted under the provisions of the Act. 85. So far as grant of mining lease is concerned, Section 4(2) absolutely prohibits grant of a mining lease otherwise than in accordance with the provisions of the Act and the Rules thereunder. Rule 26(2) also prohibits grant of a lease unless mining plan is approved and EC obtained. The Rules of 2016 have been notified in exercise of powers conferred under Section 15 read with Section 23C of the Statute which contain specific prohibition to grant of mining lease without ECs. There is an explicit bar under Rule 55(9) to the effect that the bidder whose bid is provisionally accepted “shall not extract or allow any extraction till such mining lease” has been granted. 86. We have examined Section 15 of the Act of 1957, which empowers the State Government to make the rules in respect of mining and minerals for regulating the grant of mining lease or other mineral concessions with regard to the matters enumerated thereunder. Additionally, Section 23C enables the State Government to make rules for preventing illegal mining transportation and storage of minerals. It is well settled that any rules made under Section 15 and 23C have to be in consonance with the spirit, intendment and purpose and most importantly, the specific provisions of the statute Rules made in exercise of statutory power and cannot override specific prohibitions contained therein. 87. The working of Rule 104 A results in grave loss to public interest inasmuch as environmental degradation is the consequence of the mining activity undertaken, without EC, by a bidder utilizing the shield of Rule 104-A. The Rule provides no mechanism for restitution in the event of ultimate rejection of the bid. 49 LPA No.53/2020 & connected appeals Page 49 88. The very issuance of Rule 104-A enabled illegal mining activity by bidders only for a period of six months. Certainly, it could also not have been extended in the manner in which it has been extended. 89. The statutory provisions did not enable or empower the erstwhile State Government to issue a rule in the nature of rule 104-A. The State Government did not have the legislative competence to effect such amendment to incorporate Rule 104 A in the Rules or extend the same. 90. In this regard, the manner in which mining and quarrying operations without EC were being carried on in Jammu and Kashmir has been specifically noted by the NGT also in its orders, which has specifically intervened in the matter. 91. Clearly Rule 104-A which enables mining activity to be undertaken while a lease is being processed, even without EC is ultra vires the Act of 1957. It is in the teeth of the judgment of the Supreme Court. It is in contradiction with rules 26(2) and 55(9) of the very Rules wherein it stands incorporated. 92. The appellants are thus unable to point out as to how Rule 104-A is not an affront to the provisions of the Act of 1957, the Rules of 2016; , the Mining and Mineral Rules, 2016, violation of the decision of the Supreme Court in Deepak Kumar and the repeated directions of the NGT extracted above whereby the carrying out of mining and quarrying activities without EC is specifically and strictly prohibited. 93. The learned Single Judge was conscious of and has also noted the fact that Rule 104-A was not under challenge in the writ petitions. The learned Single Judge was bound to examine the statutory provisions as also the rules in their entirety and was not only justified but has correctly observed that Rule 104-A was in the teeth of the requirement of the law. We completely agree with the learned Single Judge 50 LPA No.53/2020 & connected appeals Page 50 that this Rule was contrary to the statutory provisions and has enabled bidders as the appellants to indiscriminately exploit the minerals without compliance of the requirement of law and, as held on issue (vi) in para 75 of the impugned judgment that Rule 104A was an affront to the Environment Protection Act. 94. We shall consider the working and also the significant impact of the Rule 104 A on the conduct of the appellants later in this judgment. IV Chronology of relevant events, submissions of appellants 95. As per the objections filed by the respondents in the writ petitions after the issuance of SRO 105 of 2016, a process of identification of 231 minor mineral blocks in various districts of the State was undertaken. After such identification, respondents issued identical public notices on various dates in 2016 of the open auctions to be conducted for grant of mining leases of minor minerals in the mineral blocks. 96. For expediency, we extract as a sample the relevant portion of one such auction notice issued by the Department of Geology and Mining as hereunder: “Government of Jammu & Kashmir Officer Incharge Geology & Mining Department (Member Secretary) District Kupwara Auction Notice On behalf of the Governor of Jammu & Kashmir the open auction for grant of Mining lease of Minor Minerals for a period of 05 years, as per Jammu & Kashmir Minor Concessions, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules 2016 (SRO 105) dated 31.03.2016) shall be conducted in the office of the Deputy Commissioner, Kupwara (Chairman) on 11/12/2017 at 02.00 PM. The details of the Minor Mineral blocks for open auction are as under:- xxxx xxxx xxxx xxxxx xxxxx 51 LPA No.53/2020 & connected appeals Page 51 The auction document (TERMS & CONDITIOINS) for conduct of open auction and grant of Mining Lease alongwith plan of area can be obtained from the office of the undersigned on any working day during the office hours till 09/12/2017, against a cash payment of Rs.1000/= (Non-Refundable) DIPK-9663/17 Sd/-Office Incharge Geology & Mining Department (member Secretary) Distr. Kupwara.” 97. The auction notices published by the Department of Geology and Mining clearly notified inter alia the following ‘Important Conditions’: “A) Important Instructions: xxx xxx xxx m) On completion of the bid process i.e. fall of the hammer, the Chairman may provisionally accept or reject the highest bid offered or received during the auction proceedings and shall send his recommendations to the Director. The highest bidder shall have to deposit 50% of the bid amount after completion of the auction process: Provided that in case the auction proceedings are not concluded under the Chairmanship of Deputy Commissioner, the recommendations as required above shall be made with the approval of the Dy. Commissioner concerned. xxx xxx xxx C) Procedure of Auction:- xxxxx iv) On completion of the bid process i.e. fall of the hammer, the Chairman may provisionally accept or reject the highest bid offered/received during the auction proceedings and shall send his recommendations to the Director. The highest bidder shall have to deposit 50% of the bid amount after completion of the auction process. 52 LPA No.53/2020 & connected appeals Page 52 v) The complete process shall be video graphed and kept in safe custody for at least three years. D) Terms of Auction (i) The Bidder whose bid is provisionally accepted, Director shall issue Letter of Intent (LoI) to complete the formalities as required for the grant of Mining Lease or Quarry Licence under these rules as the case may be within a period of six months, including deposition of remaining bid amount. xxxxxx E) Condition of Lessee: Every mining lease shall be subject to the following conditions: xxx xxx xxx (ix) The lessee shall commence mining operations within three months from the date of execution of the lease and thereafter carry on such operations effectively in a manner which will ensure safety of labourers, conservation of mineral, removal of over burden and its process dumping, storage, drainage of water and removal of all valuable minerals from the mines in accordance with rules.” (Emphasis by us) 98. Open auctions of 270 minor mineral blocks were conducted in the year 2017-18 while in 2018-19, open auctions of 12 minor mineral blocks were put to auction pursuant to public notices. 99. Every aspect of the above auctions was challenged in this Court. One such writ petition being OWP No.1176/2018 titled Radha Krishan and others v. Union of India, was filed laying a challenge to the vires of Rule 52 and Rule 27 of the Rules of 2016 (promulgated vide SRO 105 of 2016 dated 31st March 2016). Radha Krishan sought the following reliefs in this petition: “(a) Certiorari, to quash and set aside Standard Aution Document for grant of mineral lease/ Quarry Lease issued by the respondent State for being illegal, arbitrary and violative of Article 19(1)(g) of Constitution of India. 53 LPA No.53/2020 & connected appeals Page 53 (b) Writ of Mandamus for declaring Rule 52, sub rule (2) of Rule 27 of J&K Mineral Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016 vide WRO 105 of 2016 dated 31.03.2016 as ultra vires the Constitution of India, Notification issued by Central Government, being contrary to the judgment of the Apex Court in Deepak Kumar’s case with a further writ of mandamus for declaring all the actions taken in pursuane of Auction document for grant of Minor Mineral Concession and directing the respondents to frame rules while strictly complying with the EIA Notification dated 14.09.2006 issued by the Ministry of Environment and Forest, Government of IIndia and the directions issued by Hon’ble Supreme Court vide judgment dated 27.02.2011 in Deepak Kumar and Ors Vs State of Haryana and ors. (c) Certiorari, to quash and set aside SRO 164 of 2018 dated 11.04.2018 with respect to J&K Minor Mineral, Storage, Transportation of Minerals and Prevention of illegal Mining Rules, by the issuance of writ, order or direction in the nature of certiorari. (d) Certiorari, to quash and set aside by issuance of writ, order or direction in the nature of certiorari.” (Emphasis by us) 100. It was contended by Radha Krishan that under Rule 52, the mining leases and quarry licences are permitted to be granted only through the process of open auction by the competent authority. The petitioner submitted that in terms of the definition given in Rule 2(xLViii), open auction/e-auction had been defined to mean bidding by various bidders online or through physical presence before the Auction Committee for grant of mineral concession. The petitioner submitted that Rule 52 excluded grant of mining licences through e-mode which, on date, was the most potent and transparent mode of distribution of largesse by the State to avoid formation of cartels. 54 LPA No.53/2020 & connected appeals Page 54 101. On a prima facie consideration of this objection, an interim order dated 19th June 2018 was passed in Radha Krishan directing that “no licence of mining leases and quarries shall be granted by the competent authority, otherwise than by e-mode auction”. 102. In another petition being OWP No.2648/2018 titled Sarweshwar Sharma and another v State of J&K and others, the entire process including the transitory provision benefit whereof was being allowed to successful bidders, was challenged. An interim order dated 26th December, 2018, was passed seeking a detailed response from the respondents in permitting extraction of minor minerals contrary to the mandate of the judgment in Deepak Kumar’s case and in violation of provisions of SRO 105. 103. It is an undisputed position before us that so far as the appellants are concerned, they were found to be the highest bidders in auctions with regard to different blocks of minor minerals in terms of Rule 55(9) and their bids were provisionally accepted. Thereafter the respondents issued a LoI on different dates to each of the appellants. The LOIs were in identical terms. 104. Inasmuch as the entire case of the respondents rests on these Letters of Intent, we extract one such communication hereunder: “Subject:- Auction of approved Minor Mineral Blocks in District, Jammu and Letter of Intent (LoI) thereof. Whereas, Auction of approved Minor Mineral Blocks of District, Jammu was conducted by District Auction Committee under the Chairmanship of Dy. Commissioner, Jammu on 26/27th December, 2017. Whereas, in the said auction you have emerged as highest bidder in respect of Minor Mineral Block No.-61(5/36), 55 LPA No.53/2020 & connected appeals Page 55 Chauki Chaura Downstream Chagial Bridge covering an area of 5.28 hectares in District, Jammu. Whereas, Chairman District Auction Committee (Dy. Commissioner, Jammu) has approved the highest bid amount offered by you to the tune of Rs.40.00 lacs i.r.o the said Minor Mineral Block. Whereas, under Rule 26(2) of the Jammu and Kashmir Minor Mineral Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016, Mining Plan and Environmental Clearance is mandatory for grant of Mining Lease. Whereas, the highest bid amount for the said Minor Mineral Block offered by you has been provisionally accepted by the Chairman, District Auction Committee (Dy. Commissioner, Jammu) Now, therefore in view of the above and as per Rule 55(9) of these rules, the Letter of Intent (LoI) is issued with the direction to submit Approved Mining Plan and Environmental Clearance besides, deposition of remaining 50% bid amount within a period of 06 months, enabling this office to grant mining lease in your favour for extraction of minor minerals from the above said block.” (Emphasis supplied) 105. Apart from the three pre-conditions stipulated in the LoI, in view of the directions made by the NGT and Guidelines issued by the State Pollution Control Board, a letter dated 12th November, 2019 was issued by the Jammu & Kashmir Pollution Control Board to the effect that no extraction of minor minerals be carried out from the auction blocks without EC. 106. Unfortunately, none of the appellants were able to ensure compliance with the three pre-requisites for grant of mining leases. Not a single appellant deposited the 50% of the balance amount within six months from the issuance of LoIs to them. 56 LPA No.53/2020 & connected appeals Page 56 107. Though mining plans were gotten approved by most of the appellants, however, not a single appellant got the EC from the concerned authorities in due time. 108. The only appellants who were able to get the EC are the appellants in LPA No. 64/2020, Vikar Ahmad Dar v. State of Jammu and Kashhmir and others. This was also grossly belated. We shall consider the impact of this fact later in this judgment. 109. On 26th February, 2019, a decision was taken by the authorities vide communication No. IND/Legal-239/2018 to scrap the entire open auction process. This communication reads thus: “Government of Jammu and Kashmir Industries & Commerce Department Civil Secretariat, Jammu. The Director, Geology and Mining Department, J&K Jammu. No:-IND/Legal-239/2018 Dated: 26.02.2019 Sir, I am directed to refer your letter no.203/MCC/DGm/MMB/7731 dated 07.02.2019 regarding the subject cited above and to convey the following approval of the competent authority: i) Open auction carried out under the 2016 has been scrapped and fresh aucion be carried out, only through e-auction mode. ii) Till the time fresh allotments are made, the existing mechanism would continue. iii) Procedure of mining plan approval, fixation of reserve bid amount and frequency of royalty deposition would be addressed by issuing directions under the existing Rules. Yours faithfully, Sd/- 57 LPA No.53/2020 & connected appeals Page 57 (Mohammad Ayaz) Under Secretary to Government Industries & Commerce Department” (Emphasis supplied) 110. The appellants have heavily relied on the letter dated 7th February, 2019 referred to in the above communication submitting that there is no connection between the two. 111. This was a communication dated 7th February, 2019 addressed by the Directorate of Geology and Mining Jammu to the Principal Secretary, Industries and Commerce Department in the light of the consideration for e-auction of minor mineral blocks, forwarding the status of auction in the left out districts of Kathua, Doda, Ramban of the Jammu Province and Srinagar, Baramulla and Bandipora of the Kashmir Province. A brief note on the aspect of conduct of e-auctions in the districts was also enclosed for perusal. We extract the letter dated 7th February, 2019 hereunder as well: “Government of Jammu and Kashmir Directorate of Geology and Mining, Jammu. The Principal Secretary to Govt., Industries and Commerce Deptt, Civil Secretariat, Jammu. No. 203/MCC/DGM/MMB/773 Dated:7.02.2019 Subject:- E-auction of Minor Mineral Blocks Sir, Kindly find enclosed herewith status of auction in left out Districts i.e. Kathua, Doda, Ramban of Jammu Province and Srinagar, Baramulla and Bandipora of Kashmir Province. A brief note on 58 LPA No.53/2020 & connected appeals Page 58 conducting of e-auction in the said Districts is also enclosed for kind perusal.” Yours faithfully Sd/- Encl:- 5 Lvs Geology & Mining J&K Govt. Jammu” 112. The above decision was followed with a communication bearing No. IND/Legal-23/2018 dated 27th of March, 2019 issued by the Department of Industries and Commerce of the Government of the Union Territory of Jammu & Kashmir directing that the State/ Central Government agencies can undertake mining activities from the un-auctioned blocks on royalty basis. 113. The existing mechanism with regard to the transitory provision in favour of the successful bidders was extended with effect from 1st of March, 2019 upto 30th of April, 2019. SRO 279 of 2019 was issued in this regard. 114. On 15th April, 2019, yet another communication bearing No.IND/Legal/27/2013-II was issued allowing the mining of minerals by those who had succeeded in the open auctions wheresoever such open auction had been held, under close departmental supervision and under the supervision of the Deputy Commissioner concerned. 115. In those districts where open auctions had not been conducted, it was directed to allow mining under departmental supervision on first come first served basis. 116. The above mining had to be interdicted as the Jammu & Kashmir Pollution Control Board issued a stern letter dated 12th November, 2019 (SPCB/NGT/60/019/134-37) to the Director, Geology & Mining Department in the light of the directions of the NGT as well as the Central Pollution Control Board guidelines. 59 LPA No.53/2020 & connected appeals Page 59 We extract this communication in extenso as below: “With regard to your response under reference at ii to this office Notice at reference No.i above, it is clear that out of 554 minor mineral blocks, no block is fully compliant with the law governing environmental protection on one count or the other as none is consented by the Board while as only 15 minor mineral blocks have the Environmental Clearance. Secondly, as per your report, 231 blocks have been auctioned in open auction and 5 in e-auction while as LOI in respect of 224 auction minor mineral blocks has been issued in favour of successful bidders. It may be clear from above that extraction of minor minerals from the auctioned blocks has been permitted by your department dehorse of law as one of the blocks is consented by the Board under Section 25 and 21 of the Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981 respectively, while as only 15 such blocks have Environmental Clearance. It may be also clear that most of the successful bidders carry out the mining operation in absence of proper mining plan, thereby permission of your department for mining is not only in brazen violation of laws governing environmental protection but highly detrimental for ecosystem and environment, as no scientific method in absence of approved mining plan is adopted for extraction of minor minerals. Interim arrangement made under communication No. IND/Legal/27/ 2013-II dated 15-04-2019 for extraction of minor minerals can no way be substitute to statutory requirements discussed above. Since the activity permitted by your department is violative of laws governing environmental protection and in clear defiance of the directions of Hon’ble Supreme Court of India and Hon’ble NGT, you are hereby directed to:- 60 LPA No.53/2020 & connected appeals Page 60 i) Stop for auctioning such minor mineral blocks which are not consented by the Board or have no prior Environmental Clearance of the site. ii) Rescind the permits approved/ ordered forthwith granted to the successful bidders which do not have Environmental Clearance and consent of the Board or either of the two. iii) Ensure no extraction of minor minerals from today is done in the state iin defiance of laws governing environmental protection. Needless to clarify that in the event of your failure to comply with the above said directions, you shall become liable for prosecution as well as Environmental compensation on the basis of Polluter Pays’ Principle in light of the Hon’ble NGT directions and CPCB guidelines. For immediate compliance under intimation within a week’s time.” (Emphasis by us) 117. The scrapping of the open auctions carried out under the Rules of 2016 and the decision to conduct fresh auction through E-auction mode was challenged by the appellants in both wings of the High Court in the following writ petitions: S.No. Writ petition number Title LPA No. Srinagar Wing 01. OWP No.363/2019 WP(C) No.1057/2019 Ashaq Hussain Paddar and others. v. State of J&K and others (Only petitioner No. 5 filed appeal 58/2020 02. OWP No.243/2019 Mohammad Iqbal Lone v. State of J&K and others. 03. OWP No.259/2019 Vikar Ahmad Dar v. State of J&K and others. 64/2020 04. OWP No.290/2019 M/s Usman Constructions and others v. State of J&K and others. 61/2020 05. OWP No.344/2019 Mohd. Farooq Lone and others v. State of J&K and 63/2020 61 LPA No.53/2020 & connected appeals Page 61 118. On the 13th March, 2019, in OWP no. 325/2019, the Ld. Single Judge directed the Registrar Judicial to solicit orders for listing of the cases in both Wings before the same Bench. As a result, these writ petitions were clubbed for hearing before a Single Bench (Sanjeev Kumar, J) in Jammu. After detailed hearing, by a judgment dated 1st May, 2020, the learned Single Judge has dismissed the writ petitions. Aggrieved thereby some of the writ petitioners have filed the present Letter Patent Appeals which have been consolidated for hearing. others. 06. OWP No.477/2019 Mohammad Ashore Mir and others v. State of J&K and others. 62/2020 07. OWP No.517/2019 Abid Hussain Mir and others v. State of J&K and others. 08. OWP No.2294/2018 Tariq Ahmad Sheikh v. State of J&K and others. 09. WP(C) No.2410/2019 Rouf Rashid Bhat and others v. State of J&K and others. 10. WP(C) No.2642/2019 Abdul Majeed Dar v. State of J&K and others. 11. WP(C) No.3893/2019 Ashaq Hussain Paddar and others v. UT of J&K and others. 12. WP(C) No.67/2020 Abdul Rashid Bhat and others v. UT of J&K and others. 13. WP(C) No. 86/2020 Javid Ahmad Rather v. UT of J&K and others. S.No. Writ petition number Title LPA No. 14. WP(C) No.181/2020 M/s S. J. Constructions v. UT of J&K and others. 17. OWP No.517/2018 Shahnawaz Ahmad Bhat & anr. v. UT of J&K and others. 77/2020 Jammu Wing 15. OWP No.325/2019 Rakesh Kumar Choudhary v. State of J&K and others. 53/2020 16. WP(C) No.563/2020 Rakesh Kumar Choudhary v. UT of J&K and others. 62 LPA No.53/2020 & connected appeals Page 62 119. We have heard Mr Z. A. Shah, Mr P. N. Raina, Mr Altaf Naik learned Senior Advocates, Mr Vikram Sharma, Mr J. A. Hamal, Mr. Abhinav Sharma, Advocates for the appellants, and Mr F. A. Natnoo, ld. AAG, for the respondents, at length in these matters. Let us now briefly examine the facts of each of the appellants. (i) LPA No. 64/2020, Vikar Ahmad Dar v. State of Jammu and Kashhmir and others (represented by Mr. Z. A. Shah, Senior Advocate). 120. This appeal arises out of OWP 259/2019. This appellant had participated in an auction for grant of mining lease of minor minerals in District Kulgam conducted pursuant to the auction notice published by the Department of Geology and Mining in the daily newspaper Greater Kashmir on 17th September 2017. The appellant claims to have deposited earnest money worth Rs. 1.5 lakh for each block prior to his participation. In the auctions which were held on 25th September 2019, the appellant was declared the highest bidder in two blocks and he deposited amount of 50% of the bid amount. 121. As per Rule 55(9) of the Rules, the respondents issued LoIs dated 5th October 2017 in respect of the two blocks regarding which the appellant had emerged highest bidder informing him that his bid had been ‘provisionally accepted’ by the Chairman, District Auction Committee (Deputy Commissioner Kulgam). The LoI also notified that under Rule 26(2) of the Jammu and Kashmir Minor Mineral Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016, mining plan and EC was mandatory for grant of mining leases. 63 LPA No.53/2020 & connected appeals Page 63 122. The appellant was directed to submit the above two, besides ‘depositing remaining 50% bid amount within a period of six months’ to enable the respondents to grant mining lease to the appellant. 123. It has been contended by Mr. Z. A. Shah, Senior Advocate that so far as the appellant was concerned, he was able to complete the three requirements laid down in the LoI. It has been pointed out that despite the impugned order passed on 26th February 2019, the Director, Department of Geology and Mining sent 15 ‘complete files’ to the Government with the recommendation to grant permission to grant mining leases to these 15 persons. 124. It is the submission of Mr. Shah that the NGT had also passed an order imposing a requirement of getting clearance from the Pollution Control Board before undertaking mining. A Circular dated 25th November 2019 stood issued by the Pollution Control Board notifying the parties of this requirement. The submission is that on 27th December 2019, the appellant even obtained this consent from the Pollution Control Board. 125. It is submitted that the impugned order dated 26th February 2019 issued by the Government merely states that the auction had been scrapped. No specific order cancelling the bid of the appellant has been passed. 126. Mr. Shah, Senior Advocate has vehemently urged on behalf of this appellant that the power to refuse grant of a lease is vested only under Rule 31 of the Rules. Rule 31 envisages that the refusal of the application would be by the ‘competent authority’ and requires reasons for the refusal to be recorded and communicated to the applicant. Against the refusal, the remedy of an appeal to the Government is provided under Rule 85 of the Rules. 64 LPA No.53/2020 & connected appeals Page 64 127. The grievance is that the order discloses no reasons at all and as a result, the appellant stands deprived of his statutory remedy of appeal provided under Rule 85 of the Rules. 128. The order dated 26th February 2019 is also assailed on the ground that the same is vague, suffers from non application of mind and that the cancellation of his bid was not communicated to the appellant. The submission is that in any case the appellant had fulfilled all the requirements under Rule 26(2) of the Rules and that appellant had vested right to grant of lease. 129. Mr. Shah, has contended at length that if the order was issued in exercise of statutory powers, the same is bad for the reason that the doctrine of audi alteram partem was violated and also the order failed to record any reasons. In support of this ground, reliance has been placed on the pronouncement of the Supreme Court reported at (1990) 3 SCC 280, Star Enterprises v. City and Industrial Development Corporation of Maharashtra Ltd. (paras 9 & 10), and (2007) 2 SCC 181, Rajesh Kumar and others v. Dy. CIT and others (para 29). 130. The submission is that even if the order was issued in exercise of administrative power, it remained illegal for failure to comply with the principles of natural justice. 131. It has been contended that the respondents have failed to disclose the material on which the impugned order was premised. 132. It is submitted that the order dated 26th February 2019 clearly stated that the order shall operate prospectively and e-auctions would be conducted in future. As another limb of the submission, it is contended that SRO 101 issued on 7th March 2019, which effected a prospective amendment to the Rules of 2016, cannot be the 65 LPA No.53/2020 & connected appeals Page 65 basis of enbloc cancellation of the earlier auctions and bids including that in which the appellant had participated and stood declared highest. 133. Challenging the affidavit filed by the respondents disclosing the observations of the various authorities, it is pointed out that the Government notings inter alia suggest that the reserve price which has been fixed was too low; that the bids fetched were also not of the value which they ought to have fetched. It is submitted that so far as the reserve price is concerned, the same is fixed under Rule 54 of the Rules by the Government and the appellant has no role to play in the same and that no fault can be attributed to the bidders for the same. 134. With regard to the suggestion in the government file of ‘cartelization’, it is submitted that this submission is not based on any material. 135. It is further objected that the learned Single Judge has seen the records of the respondents behind the back of the appellant and that the impugned judgment of the learned Single Judge premised on such record was therefore bad in law. 136. Mr Shah submits that the impugned order refers to the competent authority. So far as the ‘competent authority’ is concerned, the Rules prescribe Director, Geology and Mining as the competent authority to grant mining leases on 5 hectares of land. A grievance is made that the order dated 26th February 2019 has not been issued by the Director. 137. It is pointed out that the scrapping of the auctions appears to have been done by the Government whereas, under the rules, the competent authority to refuse the grant of the application was the Director of the Department of Geology and Mining. The submission is that under Rule 85(2), appeal lay to the Government. Therefore in the instant case, the order has not been passed by the competent authority but by the appellate authority. Placing reliance on the pronouncement of 66 LPA No.53/2020 & connected appeals Page 66 the Supreme Court reported at AIR 1952 SC 16, Commissioner of Police Bombay v. Gordhandas Bhanji, it is submitted that such an order is not sustainable. 138. So far as the challenge pressed before us to the judgment of the ld. Single Judge by the appellant on grounds which were never urged before the learned Single Judge is concerned, Mr. Z. A. Shah, Senior Advocate has relied on the precedent reported at (2015) 7 SCC 561 (para 36), Ariane Orgachem Private Limited v. Wyeth Employees Union and Others, to submit that it is permissible. 139. Mr. Shah, also defended the introduction of Rule 104-A into the Rules on the 20th April 2016 (effective till 31st March 2017 and the subsequent amendments extending it from time to time). The submission is that it is not open to the respondents to say that this rule was ultra vires the main statute. It is pointed out that the appellant was not even in picture when this rule was framed and that Rule 104-A itself discloses the reason for its incorporation which was to ensure that a supply chain of the minor minerals was in place and that permission under Rule 104-A was granted only for a limited period, such extension lastly being up to 28th February, 2019. 140. Mr. Shah has urged that by the grant of the permission under Rule 104-A of the rules, it has to be held that the Government extended the time for completion of formalities under the LoI. 141. It is not disputed before us that the respondents filed similar objections explaining the circumstances in which they took a similar stand. 142. Mr. Z. A. Shah, Senior Counsel, as well as other counsels, have also submitted that even the counter affidavit filed by the respondents, discloses no reasons at all to support the passing of the impugned order and that none of the reasons suggested in the government notings are mentioned. 67 LPA No.53/2020 & connected appeals Page 67 (ii) LPA No. 56/2020 (EMG- LPA No. 5/2020), Chaman Lal v. State of J&K (represented by Mr. P. N. Raina, Sr. Advocate assisted by Mr. J. A. Hamal, Advocate). 143. This appellant was arrayed as petitioner No. 3 in OWP No. 363/2019 had submitted bids for the 17 blocks in the Reasi District. His bids for Rs. 64.22 lakhs, were provisionally accepted being the highest. The appellant deposited the amount of Rs. 32.50 lakhs at the drop of the hammer. The LoI on terms similar to those issued to Vikar Ahmad Dar (as extracted in the factual narration) was issued to the appellant on 11th October 2017. The prescribed period of six months for compliance of the aforenoted three conditions expired on 10th April 2018 without this appellant complying with any of the conditions. 144. Appearing on behalf of the appellant, Mr. P. N. Raina, ld Senior Advocate has submitted that the non deposit of the balance amount was immaterial inasmuch as a statutory contract came into existence the moment appellant’s bid was accepted. The submission of Mr. Raina has been that the entire field was covered by legislation. 145. Mr. P. N. Raina, Senior Advocate has assailed the finding of the learned Single Judge that the LoI created no rights and that even if the conditions had been fulfilled, still there was no absolute right in favour of the bidder. In support of this submission, reliance has been placed on the pronouncement of the Supreme Court reported at (2017) 2 SCC 125 (Para 24), Bhushan Power and Steel Limited v. S. L. Seal, Additional Secretary, Steel and Mines and others. 146. Mr F. A. Natnoo, ld. AAG, has pointed out to the facts which were before the Supreme Court in (2017) 1 SCC 568 : Bhushan Power and Steel Limited v. S. L. Seal, Additional Secretary, Steel and Mines and others. The facts have been 68 LPA No.53/2020 & connected appeals Page 68 noted in para 22.1. While in para 22.3, the Supreme Court has noted that the formalities stood completed in that case. It is not the position in the present case. 147. It is additionally urged that the appellant’s case before the ld Single Judge was a challenge to the cancellation of only his bid. It is submitted that the ld Single Judge has erred in not answering this challenge, and, instead, erroneously held that the scrapping of the auction was a policy decision which could not be challenged. 148. The submission is that the relations between the parties were governed by statutory provisions and the rules which were in the nature of delegated legislation. Mr. Raina has vehemently contended that policy is a prerogative of the executive, only in the absence of legislation and therefore the action of the respondents was completely misplaced in the present case. 149. Taking the submission made by Mr. Z. A. Shah, Senior Advocate on this aspect further, it is submitted that SRO 161 on 7th March, 2019, was issued by the Govt. amending the statutory rules. It is submitted that there was therefore a ‘policy’ decision. For the reason that the writ court found that this amendment was prospective, it is contended that the same could not have effected the petitioners rights. 150. The submission of Mr. Raina that the ld Single Judge in Para 56 had framed issue nos. 2 and 3 and returned a finding that none of the parties could be blamed for delay in processing of the EC and, further, in para 58 of the impugned judgment, held that the doctrine of frustration of contract cannot apply. It is urged that, therefore, it had to be held that time was not of the essence to the contract. 151. Mr. P. N. Raina, ld. Senior counsel has also submitted that SO 1533 dated 14th September 2006 was issued by the Govt. of India whereunder ECs were processed which was followed by another notification dated 15th January 2016 69 LPA No.53/2020 & connected appeals Page 69 wherein the District Level Environment Committee was provided for. It was submitted before us that, pursuant to the judgment in 2016 by the NGT, the Govt. of India issued a notification in 2019 amending the prescribed conditions. In this background, it was Mr. Raina’s contention that the respondents/lessor were always aware that the conditions could not be complied with and that Rule 55(9) could not be complied with within six months, and for this reason as well, time was not of the essence to the contract. Mr. P. N. Raina, Ld. Senior Counsel, has contended that Sections 55 and 56 of the Contract Act deserved to be brought into operation for extending the period of compliance of the conditions. 152. In support of the submission that time was not of essence, Mr. Raina has relied on the pronouncement of the Supreme Court reported at (1984) 3 SCC 634 (Paras 10 & 11), State of Haryana v. Lal Chand and (2011) 12 SCC 18 (Pr. 25), Saradamani Kandappan vs. S. Rajalakshmi and others. 153. Mr. Raina has vehemently urged that the requirements for grant of mining lease are to be found in Rules 6, 13 and Rule 26 of the Rules of 2016. Under rule 6, a mining plan has to be got approved while rule 13 postulates EC. Rule 26 speaks of only these two requirements. The submission is that no payment has been prescribed under the rules. Defending the failure of the appellants in depositing the balance 50% of the bid amount, it is submitted that making of this payment was not a requirement under any statute, and, that the failure to do so, was not so sacrosanct as to result in cancellation of the bid. Therefore, the appellant could not have been denied the mining lease for failure to deposit the balance payment. 154. Much stress has been laid by Mr. P. N. Raina, Sr. Advocate on the defence set out by the respondents to the writ petition OWP no. 1176/2018, Radha 70 LPA No.53/2020 & connected appeals Page 70 Krishan and others v. U.O. I. and others. This writ petition was filed by Radha Krishan and some others challenging the auction in which the appellants had participated. It is submitted by Mr. Raina that the respondents had staunchly defended the legality of their action in holding the public auctions. 155. Mr Raina has placed heavy reliance on the counter affidavit filed by the respondents therein submitting that the respondents have staunchily defended their actions as lawful. For expediency, we extract the respondents’ defence of the auctions (in consideration before us) and their action, by way of their counter affidavit to the writ petition as follows: “xi. That it is respectfully submitted that the Government of Jammu and Kashmir on due deliberation of every aspect of the mining of minor minerals and its effect on the environment has brought the aforesaid rules vide SRO 105 of 2016. It is submitted that a detailed plan has been worked out keeping in view the safeguard required for protecting the natural resources. The block-wise extraction plan has been prepared for the first time and a detailed study of all the river beds have been conducted with great efforts of the committee constituting technical experts in the field. A copy substantiating of the above fact is enclosed herewith and marked as Annexure-IV. xi. That it is submitted that after issuance of SRO 105 of 2016, the answering respondent-department initiated the process of carving out of minor minerals blocks in various districts of the State and in this respect vide order issued under endorsement No. MEJ/L/EC/2016- 17/61-70 dated 26.04.2017, team of officers for both the provinces viz. Kashmir Province and Jammu Province, who were nominated for assisting the District Environment Impact Assessment Authority (DEIAA in short) for facilitation in preparation of District Survey Reports in the aforesaid context. Copy of the aforesaid order dated 26.04.2017 isenclosed herewith and marked as Annexure-V for kind perusal of the Hon’ble Court. 71 LPA No.53/2020 & connected appeals Page 71 xii. That it is submitted that the Committee of Officers in respect of various districts as detailed above in Annexure-V above, has taken into consideration the provisiosn of SRO 105 of 2016 relating to various aspects for creation of minor minerals blocks and on detailed survey of the areas concerned have prepared plan for minor minerals blocks and it is only the areas which were falling within the criteria as envisaged under SRO 105, the same were duly marked in the plan so prepared in respect of each such area. As an example, the answering respondent is placing on record one of such plan showing/ detailing of prepareation of minor minerals blocks in respect of an area falling in Chenab Area (JERRI Area) of District Reasi, enclosed herewith and marked as Annexure-VI, for kind perusal of this Hon’ble Court. It is submitted that the same has been prepared in respect of each such area which was found falling within the criteria for creation of minor minerals blocks in whole of the State. In the above context, the answering respondent further places on record the following details in respect of minor minerals blocks created in respect of each district of Jammu Province, enclosed herewith as Annexure-VII for kind perusal of the Hon’ble Court. xvi. That it is submitted that after conclusion of the aforesaid process in respect of the identification and creation of minor minerals blocks as per the criteria envisaged under SRO 105 and exercise of minimum reserve price of each block, the same was further submitted for approval to the higher authorities which was accordingly communicated by the Competent Authority. The above fact is further substantiated from the copies of communications dated 19.07.2017 and 10.07.2017 in respect of one of the district of the State, which process was conducted in respect of each district, enclosed herewith and marked as Annexure-XII for kind perusal of this Hon’ble Court. xvii. That it is submitted that accordingly on approval of the aforesaid process by the Competent Authority, the auction notice in respect of each district for grant of mining lease in respect of minor 72 LPA No.53/2020 & connected appeals Page 72 minerals blocks identified for such districts were issued by the concerned District Mineral Officer. Copy of one of such auction notice in respect of district Reasi is enclosed herewith and marked as Annexure-XIII for kind perusal of the Hon’ble Court. xviii. That it is submitted that after conduct of the auction proceedings, Deputy Commissioner of the concerned District in the capacity of Chairman of the Auction Committee has submitted the record relating to the auction proceedings which include the bid sheets in respect of each block with 50% amount of bid offered for grant of mining lease in favour of the successful bidder. The above fact is further substantiated from the copy of communication No. PS/DC/Rsi/160/2405-07 dated 27.09.2017 received from one of the Chairman of District Auction Committee i.e. District Reasi is enclosed herewith and marked as Annexure-XIV, for kind perusal of this Hon’ble Court. xx. That it is relevant to submit here that one of the relevant factor which has to be taken into consideration for grant of mining lease to the successful bidder in terms of the guidelines/notification of the Ministry of Environment & Forest and Climate Change of Government of India, environmental clearance from District Environment Impact Assessment Authority (DEIAA) and State Environment Impact Assessment Authority (SEIAA) in respect of mining blocks less than an area of five (05) hectares and above five (05) hectares respectively. Copy of the guidelines/notification is enclosed herewith and marked as Annexure-XVII for kind perusal of this Hon’ble Court. In the above context, it is further relevant to bring to the notice of this Hon’ble Court that after conclusion of the process of bid, the answering respondent-department in terms of the aforesaid guidelines has to prepare the District Survey Report (DSR) and submit the same to Deputy Commissioner of the concerned District, which has to be notify by the said authority for calling objections within twenty one (21) days and if the process relates to an area less than five (05) hectares, the DEIAA shall have to issue Environmental Clearances. 73 LPA No.53/2020 & connected appeals Page 73 However, if the area concerned is above five (05) hectares, the same has to be further recommended to the SEIAA. It is submitted that in the instant case the answering respondents immediately after conclusion of the bid process has prepared the District Survey Report in respect of such districts where the bid process was initiated and concluded and further in terms of the aforesaid guidelines/notification of the Ministry of Environment & Forest and Climate Change of Government of India has submitted the same to the concerned Chairman of DIEAA, who in turn after due publication in official website of the said authority, has further proceeded in the matter and has granted Environmental Clearance in respect of all such cases where no objection has been received and where the area was less than five (05) hectares, the said authority has further recommended the cases of such successful bidder for grant of environmental clearance to the SEIAA, where no objection was found to have been raised and where the area was above five (05) hectares. The above fact is further substantiated from the copy of one of the survey report submitted by the answering respondent No.2, enclosed herewith and marked as Annexure-XVIII for perusal of this Hon’ble Court. xxi. That it is submitted that as on date the position in respect of the pendency of matter for grant of environmental clearance by the aforesaid authority i.e. DEIAA and SEIAA regarding each district of Jammu Province is further detailed in the chart, which shall be further explained during the course of arguments, enclosed herewith as Annexure-XIX for perusal of this Hon’ble Court. xxii That it is submitted that since the answering respondent department as detailed herein above has taken all the requisite steps for streamlining the process and bringing the same within the fold of directives passed by the Hon’ble Supreme Court in the matter of grant of minor minerals mining lease but because of the delay caused due to the conclusion of process for grant of environmental clearance by the aforesaid authority viz DEIAA and SEIAA, the 74 LPA No.53/2020 & connected appeals Page 74 answering respondent was thus under compulsion to resort the transitory provisions as detailed below to fulfil the public demand and also the mega projects of State as well as Central Agencies.” (Emphasis by us) 156. It is Mr Raina’s submission that in this background the action in cancelling the bid of the appellant by the respondents was completely arbitrary and illegal and the impugned judgment of the ld Single Judge sustaining the same was also erroneous. 157. Mr. Raina has drawn our attention to the finding of the learned Single Judge in para 34 of the impugned judgment that the amendment to the rules by the State to the effect that only e-auction would be conducted is prospective. It is pointed out that the respondents have not assailed this judgment. 158. It is further submitted that the auction was admittedly lawful and the policy decision to amend the rules having been held to be prospective, thus neither the auction in which the appellant had participated nor the LoI issued to the appellant could have been cancelled. 159. Ld Senior Counsel has also submitted that the aspect of grant of mining leases was covered by the statute enacted by the Parliament of India and the Rules stood framed thereunder by the State Government. There was thus no scope at all for executive interference in such covered matters and that the action of the respondents in effecting the amendment was clearly illegal and contrary to the constitutional scheme. 160. Reliance was placed by Mr. P. N. Raina, ld Senior Counsel on the pronouncement reported at (2015) 13 SCC 233, Rishi Kiran Logistics Private Limited v. Board of Trustees of Kandla Port Trust and others. 75 LPA No.53/2020 & connected appeals Page 75 (iii) Submission in LPA No.58/2020 Nagar Singh v. State of J&K (represented by Mr Abhinav Sharma, Advocate) 161. The appellant had filed OWP No.363/2019 as petitioner no.5 (the petition was titled as Ashaq Hussain Padder and others v. State of J&K and others). 162. Bids submitted by the appellant-Nagar Singh were provisionally accepted as highest in respect of 27 blocks. In respect of these three LoIs were issued on 16th December 2017 with the period of six months expiring on 15th June 2018 while 24 LoIs were issued on 26th February 2018 with the period of six months expiring on 25th August 2018. 163. It is admitted before us that in respect of the applicants for which LoIs dated 26th February 2018 were issued, the appellant submitted his mining plan on 10th April 2018 which was approved by the respondents within two days on 12th April 2018. 164. This appellant has admittedly not cared to deposit 50% of the balance amount till date. 165. In the writ petition, it is not disclosed whether the EC was applied for or when, if it was so done. However, Mr. Abhinav Sharma, ld. counsel, has drawn our attention to two letters, one letter dated 14th March 2018 which was addressed to three persons including the appellant-Nagar Singh wherein reference was made to the application of Mr. Nagar Singh for grant of EC for river bed mining project. This letter was followed by a letter dated 18th April 2018 on the same subject. The impact of these letters shall be considered later in this judgment. However, the admitted position is that EC has not been granted to this appellant. 76 LPA No.53/2020 & connected appeals Page 76 166. Appearing for the appellants, Mr. Abhinav Sharma has contradictorily set up a plea that under Rule 6, a mining plan was the only pre-requisite for grant of quarrying licence and that no EC was required to be obtained by the appellant. It is submitted that by issuance of LoI, a “quarrying licence” stood granted to the appellant. 167. In support of his submission, Mr. Sharma has relied on Chapter V of the Rules of 2016 dealing with grant of quarry licence and Rule 43 thereof. (iv) LPA No. 61/2020 (EMG LPA No. 41-A/2020, M/s Usman Constructions and others v. State and others (argued by Mr. Altaf Naik, Senior Advocate). 168. The four appellants in the instant appeal had filed OWP 290/2019. They were the highest bidders for different mining blocks in Districts Kulgam, Jammu, Poonch, Udhampur. For expediency, we may note that the earliest LoI issued to them was on 30th August 2017 while the last was of 16th December 2017, stipulating the six month periods for compliances, the earliest of these expiring on 1st March, 2018, while the last was 15th June 2018. 169. These appellants have complained that despite their fulfilling the stipulations of the LoI, the respondents issued the impugned order dated 26th February 2019 in gross violation of their rights whereby the entire auction of the minor mineral blocks conducted in 2017 was cancelled. 170. The appellants had assailed the scrapping of the auction by way of writ petition which was registered as OWP No. 290/2019 in the Srinagar Wing which came to be clubbed with other matters raising the same challenge, all of which were rejected by the common judgment dated 01st May 2020 of the learned Single Judge. Aggrieved thereby, the appellant has filed the instant appeal contending that 77 LPA No.53/2020 & connected appeals Page 77 the learned Single Judge has not examined all the provisions and the rules which were relevant and has left out vital aspects from his consideration. 171. Mr. Naik, ld Senior Counsel has contended that the learned Single Judge has failed to consider the impact of Rule 55(10) which mandates that if the bid amount stood deposited, the bidder would be entitled to grant of the mining lease and that this sub rule states that the bid amount offered by the successful bidder shall be considered as a guarantee amount for the grant of the mineral concession. 172. Ld Senior Counsel has urged that the learned Single Judge has erred in the observations made with regard to Rule 104-A of the Rules. The submission is that this was a transitory provision which was not challenged but was supported by the respondents who extended its application from time to time. It is contended that the learned Single Judge has erred in application of the doctrine of frustration which was not at all attracted in the present case. 173. In response to the observations in the notings in the official file that reserve price was low, Mr. Altaf Naik, Senior Advocate has contended that the reserve price stands fixed by the Government in terms of Section 9 of the Act. It is submitted that the bidders have no concern, involvement or choice in that matter. 174. Mr. Altaf Naik would also submit that in the judicial precedent from Rajasthan as was placed by Mr. Sunil Sethi, Senior Counsel, the petitioners in whose favour LoIs had been issued by the Government, were permitted to undertake mining activities. 175. So far as the appellants’ plea in LPA 61/2020 (Usman Constructions and others) that they had fulfilled the conditions under the Rules and the LoI are concerned, we have carefully scrutinized the record of this appeal. We find that out of the four appellants, only the appellant No.1-M/s Usman Constructions (with 78 LPA No.53/2020 & connected appeals Page 78 the six months from LoIs’ expiring on 4th April 2018 and 15th May 2018) deposited the balance 50% of the bid amount on 29th June 2018 for two blocks which was forwarded to the Director on 3rd July 2018 and the appellant No.4-Shabir Ahmed Sheikh (with the six months expiring on 4th April 2018 and 15th May 2018) deposited the balance 50% of the bid amount on 29th June 2018 which was forwarded to the Director on 3rd July 2018. EC stood granted to the appellant No.1 on 11th April 2018 for his two blocks, again after the expiry of the six month deadline for those blocks. The appellant No. 4 was granted EC for only one block on 11th April 2018. These deposits and clearances were clearly way beyond the period of six months given to the appellants. 176. We shall consider the impact of belated compliance of the required conditions hereafter and also as to whether the respondents had the power to condone the delay. 177. The other two appellants in LPA 61/2020 (namely Sajad Ahmad Shan and Balbir Singh) have not complied with any of the conditions of the LoI. (v) LPA No. 62/2020 (EMG-LPA No. 50-A/2020), M/s Mohammad Ashore Mir and ors v. UT of J&K and others (represented by Mr. Hakim Suhail Ishtiyaq, Advocate). 178. The appellants in LPA No.62/2020 had filed the writ petition OWP No. 477/2019. They had participated in auctions held on 8th and 14th November 2017 with regard to mining blocks in District Pulwama, were found to be highest bidders and had deposited the 50% of the bid amount on the fall of the hammer. 179. LoIs were issued to Mohd. Ashore Mir, appellant No.1 and Manzoor Ahmed Mir, appellant No.2 on 7th December 2017 with the period of six months expiring on 6th June 2018 while the LoI was issued to Mohd. Shaban Bhat-appellant no.3 on 26th December, 2018, with the six months expiring on 25th June, 2019. 79 LPA No.53/2020 & connected appeals Page 79 180. The mining plans of the appellants 1 and 2 got approved on 11th January 2018. 181. The appellant No. 3 Mohd. Shaban Bhat did not bother to even submit the mining plan within prescribed period. He obviously has no approved mining plan in his favour. 182. None of these appellants have till date even applied for EC. They have also not deposited the 50% balance amount. 183. Learned counsel for these appellants has staunchly contended that the issuance of the LoIs resulted in coming into existence of a statutory contract because the LoI stood issued pursuant to the statutory provisions and the rules framed thereunder. Once such contracts came into existence, they could have been scraped only after compliance with the requirements of Rule 31 of the Rules. 184. Learned counsel contended that consequently the scrapping of the bids could not have been effected without issuance of notices to show cause and grant of hearing to them, therefore, was in violation of principles of natural justice. 185. Ld counsel has vehemently contended that the communication dated 26th February 2019 was completely misconceived and without jurisdiction. Ld. counsel would submit that this letter has been addressed to the Director, Department of Geology and Mining of the then State of J&K by an Under Secretary of the State Government. It is urged that this letter appears to be a response to a letter dated 7th February 2019 which had been addressed by the Director, Department of Geology and Mining. 186. Ld counsel would submit that the letter dated 7th February 2019 had merely referred to the status of the auctions which were to be held in three districts Kathua, Doda and Ramban of Jammu and Srinagar, Barmulla and Bandipora in the 80 LPA No.53/2020 & connected appeals Page 80 Kashmir Province which had been left out of the previous auctions. Mr Naik would submit that this communication did not relate to the auction or the bids of the appellants, that the letter nowhere mentions scrapping of the auction which had been held in 2017. 187. The submission is that Government orders have to be issued in accordance with the Transactions of Business Rules. Ld counsel vehemently contended that this letter dated 26th February 2018 was neither a government communication nor was it in the nature of an order made in accordance with law. 188. The further submission is that the different clauses in the communication were contradictory to each other. Ld. Counsel submits that the letter dated 26th February 2019 shows that the government was cognizant of the auctions of 2017 as is evident from clause (2) thereof which have stated that till fresh allotment, ‘existing mechanism would continue’. The existing mechanism was the mode of open auctions. vi) LPA No. 53/2020 (EMG-LPA No. 2/2020, Rakesh Kumar Choudhary v. U.T. of J&K and others (represented by Mr. Vikram Sharma, Advocate.) 189. This appeal has been filed by a single appellant- Rakesh Kumar Choudhary (writ petitioner in OWP No.325/2019), contending that he was found the highest bidder in auctions held for mining blocks held on 13th September 2017 in District Rajouri and on 13th December 2019 in district Samba. So far as the 22 blocks in Rajouri for which he was provisionally found to be the highest bidder, were concerned, LoIs were issued on 5th October 2017 with the six months expiring on 4th April 2018. For 21 mining blocks in District Samba, LoIs were issued to the appellant on 21st December 2018 with the six months expiring on 20th June 2019. 81 LPA No.53/2020 & connected appeals Page 81 190. The appellant submitted mining plans for District Rajouri on 27th February 2018 which was approved within six days on 3rd March 2018. In respect of the Samba District, he submitted mining plans on 30th January 2019 which was approved within two days on 2nd February 2019. 191. Appearing for the appellant, Mr. Vikram Sharma, ld counsel submits that he adopts all the arguments made by learned Senior Counsels in the connected appeals. Mr. Sharma, clarified that the writ petitioners had challenged only the first clause in the communication dated 26th February, 2019 and that they did not challenge clause (2) of the letter which was in fact the continuation of Rule 104-A of the Rules. It is submitted that the first clause was perse arbitrary. 192. Mr. Vikram Sharma, Advocate has submitted that under Rule 26(2), there are only two prerequisites for grant of mining lease, the first being approval of a mining plan and the second was grant of EC. 193. Ld. counsel has supported the submissions further adding that not only had the LoI been issued to this appellant but his mining plan also stood approved. The contention is that as such, the moment the mining plan stood approved under rule 6 of the Rules, the bidder became entitled to grant of mining lease. In addition, Mr. Sharma submits that the highest bidder was permitted under rule 104-A to undertake mining activity subject to payment of royalty as chargeable in accordance with Section 9 of the enactment. The bidders having paid royalty, had moved ahead from the stage of issuance of the LoI. It is Mr. Sharma’s submission that upon grant of the permission under Rule 104-A, a binding contract between the parties had come into existence. 194. Rakesh Kumar, the appellant in LPA 53/2020 does not inform us as to the date when he applied for the EC. We are informed by Mr. F. A. Natnoo, AAG that 82 LPA No.53/2020 & connected appeals Page 82 as per the web portal of JKEIAA, the applicant had submitted the application for EC in respect of the three mining blocks in Rajouri on 28th February 2019; for 10 blocks on 27th September 2019; for two blocks on 28th September 2019; for three blocks on 10th October 2019 and for three blocks on 11th October 2019. 195. So far as the District Samba blocks are concerned, some applications for the clearance were made on various dates i.e. 11th, 16th, 17th, 19th and 20th September 2019. Thus, the appellant has for the first time applied for the mandatory and most essential EC more than one year after the expiry of the period of six months from the issuance of the LoI. (vii) LPA No. 63/2020, Mohd. Farooq Lone and others v. State of J&K and others. (represented by Mr Hakim Suhail Ishtiaq, Advocate) 196. The appellants in this case were co-petitioners in OWP No. 344/2019 and all of them had participated in the auction held for grant of mining leases of minor minerals in different blocks in District Kupwara. 197. The respondents have disclosed that the bids of the appellants being found highest, LoIs each dated 4th January 2018, were issued to all of them. The period of six months, from the issuance of these LoIs, was expiring on 3rd July 2018. 198. Mining plans were submitted by these appellants on different dates. We find that the respondents have promptly responded to the submission of mining plans wheresoever they were submitted by the bidders/appellants. Approvals appear to have been accorded within one to three days of submission of the plan. 199. The facts on record establishes that most of the appellants chose to sit over the matter of obtaining ECs and most of them did not even bother to apply for the same. Out of the 15 appellants in this appeal, only 5 appellants have submitted their applications for ECs on various dates between 2nd and 6th June 2018. 83 LPA No.53/2020 & connected appeals Page 83 200. None of these appellants have bothered to deposit the balance 50% of the bid amount which, in terms of the LoIs, was to be deposited within a period of six months from the issuance of the LoI. (viii) LPA No.77/2020 Shahnawaz Ahmad Bhat & Mohd Ayoub Bhat v. Union Territory of J&K and others: 201. These appellants had filed OWP No.517/2018 as petitioners 7 and 8 and claim to have been found the highest bidders for grant of mining leases in auctions held on 26th May, 2018, for mineral blocks in Shopian. LoIs dated 29th November, 2018 were issued to them with the period of six months expiring on 28th may, 2019. The appellants claim to have completed formalities without delay for seeking EC. No dates are forthcoming in either the appeal filed before us or the writ petition. These appellants have also claimed that EIA Reports could not be prepared because of default on the part of the respondents who had failed to submit the DSRs of the blocks to the authorities. These appellants assail the judgment of the learned Single Judge on the very grounds as have been pressed in the other appeals. The respondents dispute the completion of formalities by these appellants. The remaining bid amount has not been deposited. We now examine in seriatum the various issues which arise in these appeals under the following headings: V Appeals pressed on grounds which were not urged before the Ld. Single Judge, examination of official records, opportunity to meet the same 202. Before examining the contentions of the appellants, it is necessary to note two preliminary issues. 84 LPA No.53/2020 & connected appeals Page 84 203. The issues pressed before this court in appeal were never raised before the learned Single Judge. We are thus being called upon to test the correctness of the view taken by the learned Single Judge on points and issues which were never raised before the learned Single Judge. Is it permissible for us to do so? 204. In response, it has been urged by the appellants that they are arguing questions of law which can be raised at any stage in the proceedings and that the present appeal is an extension of the writ petition. It has also been contended before us by the appellants that in case any of the grounds finds favour, the matter may be remanded for consideration afresh to the ld Single Judge. 205. A similar question was raised before the Supreme court in the pronouncement reported at (2015) 7 SCC 561 (para 36), Ariane Orgachem Private Limited v. Wyeth Employees Union and Others which has been placed by Mr. Z. A Shah, Senior Advocate before us. 206. Reliance also stands placed on the pronouncement of the Privy Council in the case reported at 1892 AC 473 (PC), Connecticut Fire Insurance Co. v. Kavanagh, wherein it is observed as follows: “36.1. In Connecticut Fire Insurance Co. v. Kavanagh [1892 AC 473 (PC)], Lord Watson has observed as under: (AC p. 480) “… When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea.” (emphasis supplied) The aforementioned view of the Court of Appeal has been relied upon by this Court in Gurucharan Singh v. Kamla Singh [(1976) 2 SCC 152] . Therefore, with regard to the abovementioned aspect regarding 85 LPA No.53/2020 & connected appeals Page 85 the plea of the competency of the Deputy Labour Commissioner to pass an order of refusal to make a reference, although is being raised before this Court for the first time, is based on admitted facts. Hence, in accordance with the view taken by the Court of Appeal in Connecticut Fire Insurance Co. case [1892 AC 473 (PC)] and this Court in Gurucharan Singh case [(1976) 2 SCC 152] , the argument advanced by the first respondent Union deserves to be considered by this Court.” (Emphasis by us) 207. This view was relied upon by the Supreme court in (1976) 2 SCC 152, Gurcharan Singh v. Kamla Singh; (2013) 6 SCC 278, V.L. S. Finance Ltd. v. Union of India and (2010) 9 SCC 157, Greater Mohali Area Development Authority v. Manju Jain. 208. In (2011) 12 SCC 695, National Textile Corporation Ltd. v. Naresh Kumar Badri Kumar Jagad, it was held by the court that a new question raising a pure legal issue for which no enquiry proof is required, can be raised at any stage. Following these principles in Ariane Orgachem Private Limited’s case, the Supreme Court rejected objection similar to the one raised before us. 209. In the present case, so far as facts are concerned, there is no dispute at all. In fact the appellants have accepted the correctness of the facts stated by the respondents with regard to their bids and subsequent conduct. Furthermore, the submissions which are being raised for the first time are legal pleas. All such pleas therefore can be examined by this court hearing the challenge assailing the judgment passed by the writ court. Whether the decision of the Learned Single Judge is contrary to the stand of the respondents in court 86 LPA No.53/2020 & connected appeals Page 86 210. There is another objection which needs to be noticed herein. A submission was made by Mr. Z. A. Shah, Sr. Advocate, Mr. P. N. Raina, Sr. Advocate and Mr. Abhinav Sharma, Advocate that the respondents have not made any complaint against the appellants in their counter affidavits. It is further submitted that no grounds in support of their decisions were laid out in the counter affidavit. 211. The appellants have assailed the judgment of the learned Single Judge on the ground that the court has travelled beyond the pleadings of the parties and has delivered a judgment dehors the pleadings. In support of this submission, learned counsel appearing for the appellants in LPA No. 50/2020 has placed reliance on the pronouncements reported at AIR 1953 SC 235 M/s Trojan & Co. Ltd. Vs. Rm. N N Nagappa Chettiar; AIR 2002 SC 665 Om Prakash Gupta vs. Ranbir Goel: AIR 2005 SC 3165 Ishwar Dutt vs. LAC; AIR 2010, SC 1299 State of Maharashtra vs. Hindustan Construction Company Private Limited and AIR 2011 SC 1127 (paras 18 to 20) Kalyan Singh Chouhan vs. C. P. Joshi; 212. Let us first examine the objections filed by the respondents in opposition to the writ petition before the Ld. Single Judge. We were informed that respondents filed identical responses to all writ petitions. For expediency, we extract relevant portion of the objections filed by the respondents to OWP No.259/2019 Vikar Ahmad Dar vs. State, hereunder: “Preliminary objections xxxx xxxx xxxxx xii) That it is relevant to submit that the answering respondents- Geology & Mining Department in order to ensure uninterrupted supply of minor minerals for development of the State and Central Government Agencies, besides effecting the various units has brought amendment to the aforesaid SRO to the extent of incorporating 87 LPA No.53/2020 & connected appeals Page 87 transitory period in the shape of Rule 104-A vide SRO 33 of 2016 thereby authorizing the concerned authorities to issue permission valid up to certain dates, even by virtue of SRO 104 dated 06-04-2018 has further extension of aforesaid transitory provision, the extraction was allowed by the successful bidders which process came to be extended from time to time by virtue of various SROs, such extension whereof has come to an end on 28-02-2019. It is relevant to submit that during the aforesaid period various writ petitions also came to be filed by various persons challenging the standard auction documents as well as rule 52 of SRO 105 of 2016, wherein this Hon’ble Court in OWP No. 1176/2018 titled Radha Krishan and ors vs UOI and others vide interim order dated 19-06-2018 has passed the following directions; “…. Meanwhile, subject to objections and till next date of hearing, it is provided that no licence for mining lease and quarries shall be granted by the competent authority, otherwise than by the mode of e-auction.” xiii) That similarly in another petition bearing OWP No. 2648/2018 titled Sarweshwar Sharma and another v State of J&K and others also came to be filed challenging the whole process including the transitory provision allowed in favour of the successful bidders, wherein this Hon’ble Court vide order dated 26-12-2018 has sought detailed response from the State in allowing extraction of minor minerals contrary to the mandate of judgment passed by the Hon’ble Apex Court in Deepak Kumar’s case (supra) and also contrary to the provisions of SRO 105 of 2016. xiv) That it is submitted that the answering respondents keeping in view the aforesaid facts and circumstances more particularly the fact that out of total 321 mining blocks where the process was issued, majority of the successful bidders have failed to submit the environmental clearance within time prescribed in terms of the aforementioned provision of SRO 105 and even beyond that as well despite having even issued notice to them and also keeping in view the aforesaid interim directions as on due consideration allowed 88 LPA No.53/2020 & connected appeals Page 88 to each such aspect of the matter, more so the process being allowed to continue contrary to the mandate of judgment of Hon’ble Apex Court in Deepak Kumar’s case (supra), has thus vide order impugned dated 26-02-2019 decided to scrap the process of open auction directed in the year 2016 with further directions that the process of functioning shall be carried out through e-auction mode. In this context, it is further submitted that the answering respondents in the meanwhile has also allowed substitution of the word “Open Auction” as figuring in Rule 52 with “e-auction” by way of issuance of SRO 161 dated 07-03-2019. xv) That it is submitted that the petitioner herein, who was amongst few successful bidders in the State, who had obtained environmental clearance but in view of the aforesaid facts and circumstances more particulars when majority of successful bidders have failed to submit the environmental clearance and also because of the interim directions restraining for issuance of any licence without e-tendering, the answering respondent has thus taking into consideration all the facts and circumstances detailed above directed for scrapping of the process and further the process to be allowed to e-tendering only. It is submitted that the petitioner admittedly has not been granted any licence, as such, the petitioner has got no vested right in him, either to challenge the order/decision impugned or to seek continuation, more so such bald assertions/contentions which are misconceived both in law as well as on facts. In light of the aforesaid submissions, the present writ petition filed by the petitioners is not maintainable and deserves to be dismissed.” 213. In the parawise response to the writ petition, the respondents have stated as follows: “2-17. Averments made in paras 2 to 17 to the extent of that the same relates to initiation of open auction process, conduct thereof and the petitioner herein having remained successful bidders in the said 89 LPA No.53/2020 & connected appeals Page 89 process, submission of mining plan and also depositing of 50% of the bid amount, the same is not disputed. However, it is submitted that in terms of the aforesaid provision of SRO 105 of 2016 read with the contents of letter of intent (LOI) issued in favour of the successful bidders, the successful bidders were required to submit the environmental clearance from the competent authority to the answering respondents-Geology & Mining Department which the majority of successful bidders have failed to submit within the prescribed period of six months and even beyond the said date as well. Further in view of challenge thrown to Rule 52 as well as standard auction document in the aforementioned writ petition and also the interim directions passed by this Hon’ble Court in the above titled writ petition and further the fact that the whole process was found continued against the mandate of the judgment passed in Pardeep Kumar’s case, the answering respondent thus taking into account all the facts and circumstances has directed the scrapping of the process and further allowing the process through e-tendering only for which the answering respondent has even allowed amendment to Rule 52 of SRO 105 of 2016. Therefore, none of the rights of petitioner can be held to have been violated while passing the decision/ order impugned dated 26-02-2019 by the answering respondents. 18. Averment made in para 18 and so called grounds sought to be urged under sub paras (A) to (I) need no further response in view of the detailed submissions made herein above to which the answering respondents shall refer to and rely upon. However, it is reiterated that since the majority of successful bidders have failed to submit the environmental clearance in terms of the mandate of aforementioned provision of SRO 105 and the contents of letter of intent (LOI) issued in favour of the successful bidders and further in view of the restraint order passed by this Hon’ble Court in the afore titled writ petition, the competent authority after considering the facts and circumstances in totality including the interim directions passed by the Hon’ble Court 90 LPA No.53/2020 & connected appeals Page 90 in the afore titled matters as well as mandate of the judgment of Hon’ble Supreme Court in Pardeep Kumar’s case, has thus taken a conscious decision for scrapping the open auction process carried out in the year 2016 and directed for carrying out fresh auction process through e-auction mode. The contentions/assertions to the contrary sought to be projected by the petitioner under these ground paras being incorrect are thus denied vehemently.” (Emphasis by us) The above extract makes it amply clear that short of extracting from their official file, the respondents have taken the stand which was accepted and found favour with Ld. Single Judge. These very contentions have been considered by us. 214. The pronouncement in AIR 2011 SC 1127 Kalyan Singh Chouhan vs. C. P. Joshi was rendered in an election dispute, wherein the rules of pleadings apply strictly and it was held by the Supreme Court that pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. It was observed that pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned of the question in issue, so that the parties may adduce appropriate evidence on the said issue. The court reiterated the well settled legal proposition that “as a rule relief not founded on the pleadings should not be granted”. Therefore, it was held that a decision of a case cannot be based on a ground outside the pleadings for the parties. In so holding, the Supreme Court placed reliance on the precedents in Trojan & Co. Ltd; Om Prakash Gupta; Ishwar Dutt and Hindustan Constructions Company Pvt. Ltd. 215. There can be no dispute at all with these well settled principles. However, we are unable to agree with the objection on behalf of the appellants that the ld. Single Judge has rendered the impugned judgment outside of the pleadings. 91 LPA No.53/2020 & connected appeals Page 91 216. We have considered the concealment of material facts on the part of the appellants and also the deliberate misjoinder of parties to persuade the court to grant the relief to them when they were completely disentitled to do so. It is the appellants who have failed to give the details or the extent of their breaches and failure to comply with the Rules and the terms of the LoI. 217. The learned Single Judge has relied primarily on the statutory provisions, the Rules as also the terms notified to the appellants under the LoIs and the admitted violations by the appellants. This objection, therefore, is noted only for the sake of rejection. Opportunity to meet contents of official record 218. A vehement objection also stands made on behalf of all the appellants that the ld. Single Judge examined the official records of the respondents and has premised the impugned judgment thereon without the appellants having had benefit of knowing the contents thereon. 219. On the other hand, Mr F. A. Natnoo, ld. AAG, has explained that the original record was produced in support of the Govt. reply to the writ petitions and the communications from the respondents. Mr. Natnoo has submitted that the record was available in open court before the Ld. Single Judge right from the beginning when the hearings commenced before the learned Single Judge. It is submitted that none of the appellants even made a request to the learned Single Judge for an opportunity to examine the same. Mr Natnoo has further submitted before us that several queries were put to the appellants on the basis of the original record and responses elicited. Mr. Natnoo has submitted that no objection whatsoever was raised by and on behalf of 92 LPA No.53/2020 & connected appeals Page 92 the appellants to the above procedure at any point of time. The objection of the appellants to the procedure followed by the Ld. Single Judge is also unfounded. 220. This bunch of appeals was consolidated for hearing which commenced on 27th May, 2020. During the course of submissions on 28th May, 2020, it was also contended that there was no material to support the Government action and order. 221. Appearing for the respondents, Mr Natnoo, disputed the contentions of the appellants and submitted that the Government action and order was valid and in accordance with law. In the objections, as extracted above, reference was made to “taking into account all the facts and circumstances” and “conscious decision for scrapping the open auction carried out in the year 2016” and “carrying out fresh auction process through the e-mod.” The communication dated 26th February, 2019 also refers to approval of the “competent authority” and scrapping of the open auction carried out under the Rules of 2016. 222. An objection of the appellants was pressed that the order is not in accordance with Rules 11 and 12 of the Transaction of Business Rules. It is noteworthy that the appellants did not challenge the decision of the Government dated 26th February, 2019 whereby it was decided to grant mining leases by e- mode. So far as rejection of an application is concerned, the same is provided under the Rules of 2016. Mr. Natnoo, has further urged that the decision of the respondents was taken in public interest to ensure compliance of the directions of the Supreme Court and the NGT as also the notifications of the MOEF&CC of the Government of India. 223. The order of scrapping and approval was not in the writ records before us. Having regard to the contents of the communication dated 26th February, 2019 and 93 LPA No.53/2020 & connected appeals Page 93 the above averments in the reply of the official respondents, in order to take a view in the matter, we had deemed it necessary to examine the original record. Fairness demanded that the appellants be granted an opportunity to examine the same and make submissions thereon. 224. In order to obviate any prejudice to the appellants, by our order dated 20th May, 2020, we had directed the respondents to produce before us all original records which had led to the issuance of the communication dated 26th February, 2019. The respondents were directed to file an affidavit placing on record the approval which was referred to in the communication dated 26th February, 2019 and copies of the extract of the relevant portion of the original record as well as connected documents. The respondents were directed to give full details of the manner in which the matter had been processed. This affidavit was directed to be filed in LPA No.62/2020 and copy thereof served upon counsels appearing in all the appeals who were given liberty to file response thereto. 225. The respondents had filed an affidavit dated 28th May, 2020. However, by the order dated 29th May, 2020, this was rejected as incomplete and the respondents were directed to file a fresh affidavit with liberty to the appellants to respond thereto. 226. In compliance of the above, the respondents filed an affidavit dated 30th May, 2020 of Shri Manoj Kumar Dwivedi, Commissioner/ Secretary to Government, Industries and Commerce Department, placing the relevant extract from the official file No. IND/Legal-239/2018 before us. 94 LPA No.53/2020 & connected appeals Page 94 227. A response dated 01.06.2020 has been filed by Vikar Ahmed Dar (appellant in LPA No. 64/2020) contending that the consideration by the Principal Secretary (I&C) was based on no material. 228. We were also of the view that these appeals raise matters which do not brook any delay. For this reason, we have permitted the appellants to press the several grounds which are considered hereafter and examined the affidavits and the records of the respondents. 229. Ld. Senior Counsels and counsels for the appellants appearing in these cases have addressed submissions in detail as well as Mr. F. A. Natnoo, ld. AAG on these affidavits and the records of the respondents at length. VI The consideration by the Government which lead to the decision to scrap the auctions of 2017, issuance of the communication dated 26th February, 2019 and the Amendment to the Rules. 230. Before us, all the appellants have contended that there was no material before the respondents and that the impugned action stands taken and the decision made without application of mind. It is further contended that the respondents placed no pleadings even before the learned Single Judge to oppose the writ petition or explain their action or stand. 231. The record shows that the filing of OWP 1176/2018 Radha Krishan vs. Union of India and the passing of the order dated 19th June, 2018 therein catalyzed the authorities into taking a close look into the entire matter of grant of mining lease and quarries. 232. It appears that another writ petition- OWP No. 1249/2018, was filed by Subash Chandra and anr in the Jammu Wing contending that notices issued vide No. DIP/J/3008/18 dated 27th June 2018 were issued in violation of the above 95 LPA No.53/2020 & connected appeals Page 95 order dated 19th June 2018 in OWP No. 1176/2018 Radha Krishan v. Union of India. While issuing notice by the order dated 2nd July 2018, the learned Single Judge had directed that ‘the impugned public notice dated 27th June 2018 (supra) and all proceedings pursuant thereto shall stay and no auction shall be held/or acted upon.’ 233. This writ petition was directed to be listed along with OWP No. 1176/2018. 234. We may note that Subash Chander was the petitioner No. 2 in OWP No. 1176/2018. Instead of bringing the above fact regarding the notice dated 27th June 2018 by way of an appropriate application to the notice of the Bench seized of that writ petition, the strange practice of filing a second writ petition appears to have been followed. 235. In OWP No.2648/2018 Sarweshwar Sharma and others, the ld. Single Judge by the order dated 26th December, 2018, while asking the State to explain its position vis-à-vis Rule 104A, the transitory provision, passed the following order: “Considering the importance of the matter, I request the learned Advocate General of the State to assist this Court on the next date of hearing. It is, however, made clear that although I am of the prima facie view that the Transitory Provision does not in any manner absolve the successful bidders to obtain environmental clearance based upon the Transitory Provision, yet the issue will be considered after an appropriate response is filed through the office of learned Advocate General. In case, the response is not satisfactory, on the next date of hearing, it may become necessary to permit the successful bidders to conduct their minor mineral operatioins only if they have in their possession an appropriate environmental clearance report. The pendency of the present petition, therefore, would not prevent the successful bidders, in the meantime, to get clearance, as require.” (Emphasis supplied) 96 LPA No.53/2020 & connected appeals Page 96 This writ petition is still pending. The above order shows the concern of the court with the matter of ECs which were mandatory. 236. Vide a letter dated 4th July 2018, the Directorate of Geology and Mining, J&K proposed amendments in SRO 105 in the light of the order dated 19th June 2018 in OWP No. 1176/2018 Radha Krishan v. Union of India (which stood clubbed with PIL no. 6/2016 Peoples Forum v. State and anr). 237. The Directorate of Geology and Mining in the Department of Industries and Commerce, while taking steps to contest the OWP No. 1176/2018, also took up the matter of Rule 52 of SRO 105 i.e. the Rules of 2016 and explored the possibility of making ‘e-auctions’ a permanent method for auctions in the future. 238. The interim orders of this court in OWP No. 1176/2018 also led to the Department of Industries and Commerce taking up the matter of development of software, training staff, etc for conducting e-auctions. 239. It appears that in the light of the observations in the interim order dated 19th June 2018 in Radha Krishan facts and figures were called for by the authorities in the Department. 240. Mr. Natnoo has placed the Government file bearing No. IND/Legal- 239/2018 from the office of the Principal Secretary to the Government, Industries and Commerce Department before us. It appears that the Directorate of Geology and Mining had moved a proposal for amendment of the Rules, on which, after examination, a draft notification stood vetted by the Department of Law, Justice & Parliamentary Affairs (Para 17 & 18, noting dated 18th July 2018, N/4). The file contains a detailed extract of the amendments which were proposed by the Directorate of Geology and Mining including a tabulation of the rules requiring 97 LPA No.53/2020 & connected appeals Page 97 amendment; the matter in principle; the existing statutory provisions and rules; the proposed provisions and the justification for the same. 241. On 9th August 2018, comments of the Additional Secretary, Law were obtained on this amendment. 242. The opinion of the Advocate General was sought on the following question: “10. Whether the order of the Hon’ble High Court dated 19th June 2018 is applicable to the cases where e-auction process as already concluded?” 243. On 10th December 2018 (page 178 of the Govt file), the Advocate General opined as follows: “In cases, the auctions prior to issuance of the aforementioned order have been concluded i.e. the licences have already been granted, then the order of the court would be deemed to be prospective in nature but in case licences have not been granted till the date of passing of the order dated 19.06.2018, then in that eventuality, it has to await the final order of the court and the matter needs to be contested before the court as the order dated 19.06.2018 is interim order and that too subject to objections and till next date of hearing.” 244. So far as existing bidders were concerned, the proceedings for the issuance of the mining leases stood interdicted by the interim order dated 19th June 2018. 245. It is also noteworthy that so far as the appellants are concerned the period of six months as required by the Rules and LoIs for compliance of the conditions thereunder was long over. 246. While examining the thrust of OWP 1176/2018, that the open auction was fraught with cartelization/ intimidation, on 2nd January, 2018, the Principal Secretary directed the Director (Geology and Mining) as follows: 98 LPA No.53/2020 & connected appeals Page 98 “54. Seen. In the meanwhile, the main thrust of the petition is that open auction is fraught with danger of cartelization/intimidation. I have directed Dir (G&M) to put up information for each auction, in formatted manner, to make an assessment regarding the transparency aspect by 7th FN to me please, with the information from Dir (G&M).” 247. The details of the minor minerals blocks and their auctions were submitted by the Director of Geology and Mining, J&K Govt, Jammu under cover of a letter dated 7th January 2019 to the Principal Secretary to Govt, Industries and Commerce Department, Civil Secretariat, Jammu. 248. On 8th January 2019, the Additional Secretary (L) observed that in view of the directions of the High Court to grant mining leases/licences by the mode of e- auction, an amendment in SRO 105 may be considered by replacing the word ‘open auction’ with ‘e-auction’ to enable the Geology and Mining Department to conduct auction of the un-auctioned blocks through e-auction mode. This information was placed before the Principal Secretary as directed. 249. After an in-depth consideration of the material on file, the Principal Secretary (I&C) of the Department concerned has proceeded to record the following noting on the 8th February, 2019: “58. In the Writ Petition No. OWP No. 1176/2018 titled Radha Krishan S/o Bram Dev Vs Union of India, the Hon’ble High Court has directed that no licence shall be granted other than by mode of e-auction (refer Para 4). 59. The Department has carried out open auction of Mineral Block from September 2017 onwards and the details are placed across. The Gist (FLAG ‘X’) indicated that the successful bidders in a number of blocks is same person. In this regard, a complaint was also received and report has been obtained from Director (Geology and Mining) 99 LPA No.53/2020 & connected appeals Page 99 (FLAG ‘Y’). It is noted that while apparently rules for open auction have been followed but the highest bid shows very wide variation even though minimum reserve bid (decided by the Department taking potential into account) is of the same order. Also, it seems minimum reserve bid has been fixed too low. The Government has received a total of Rs.12.24 Crore by means of open auction of 231 (file placed below IND/legal/27/2013-II) Mineral Blocks across the State while in Districts of Kathua, Doda, Ramban, Baramulla, Bandipora & Srinagar, the auction did not take place at all, and not of any cogent reasons. 60. The Mineral Rules 2016 (Rule 52) mentions the mode of grant of lease/licence only through process of open auction. These is no doubt that e-auction would allow more competition and will address the issue of cartelization and intimidation. Hence there is need to immediately make necessary change in the Rules. The other changes proposed in the Rules are of routine nature that need not detain us but this change needs to be effected immediately, following the due process. 61. As for the open auction undertaken by the Department; the advice of the Ld. Advocate General has been sought by the Law Department on the following question:- Whether the order of the Hon’ble High Court dated 19.06.2018 is applicable to the cases wherein auction process has already been concluded”. The Ld. Advocate General has opined that in case licence have not been granted till 19.06.2018, the matter needs to be contested before the Hon’ble High Court. 62. It may be seen that the successful bidders have not yet obtained Environmental Clearance despite lapse of more than a year since they were allowed mining (subject to approval of mining plan). Notices were issued by the Department to get Environmental Clearance but they have approached the courts and have, it is learnt 100 LPA No.53/2020 & connected appeals Page 100 from the Advocate, got relief as they claim the SEIAA is not in place and that they are not at fault. 63. Looking at the entire grant of issues, it would be most appropriate to scrap the open auction that had been carried out in 2017-18 onwards and instead go, for fresh auction, with the mode of e-auction. Though that would entail returning the bid amount to successful bidders but it is expected that e-auction would fetch much higher amount of revenue for the Government. Moreover, it would ensure transparency and also compliance to the directions of the Hon’ble High Court. 64. It is therefore proposed that:- i. Mineral Rules 2016 be amended suitably to indicate e- auction as the only mode of lease/licence. ii. Open auction carried out under the 2016 Rules be scraped and fresh auction be carried out, only through e-auction. iii. Till the time fresh allotments are made, the existing mechanism would continue. This would require extension of transitory provision by some time. iv. Procedure of mining plan approval, fixation of reserve bid amount and frequency of royalty deposition would be addressed by issuing directions under the existing Rules.” (Emphasis by us) 250. The noting dated 8th February, 2019 was considered by the Advisor on 11th February, 2019 as per the forwarding note recorded in para 66. It was thereafter sent for the views of the new Principal Secretary, Industries and Commerce Department, who recorded noting on 14th February, 2018 as para 67 of the file endorsing further course of action as recommended at note 64 and 65 and recording that the e-auction was to be conducted irrespective of the status of the proceedings for EC by the successful bidders of the open auction observing that the bidding process in 2017 was not without possibility of 101 LPA No.53/2020 & connected appeals Page 101 cartelization/intimidation. The above proposal was finally approved by the Advisor on 18th February, 2018 as per para 68. 251. The above decision was conveyed by way of the communication dated 26th February 2019 issued by the Department of Industries & Commerce to the Director, Geology and Mining Department. We have extracted this letter above. This communication thus only conveys the decision of the respondents. 252. As a result of the above consideration and decision, a the draft notification was scrutinized and approved by the Department of Law, Justice and Parliamentary Affairs leading to the issuance of the notification SRO 161 on the 7th March 2019 making the following amendments in Rules of 2016. “1. clause (xLvii) of rule 2 shall be substituted by the following:- “(xLviii) “e-auction” means bidding by the competitors online for grant of mineral concessions; 2. In clause (xiii), (xxx) of rule 2, 27, 44 and 52 for the words “open auction” wherever appearing, the words “e-auction” shall be substituted.” 253. Mr. Z.A. Shah, learned Senior Counsel has submitted that the reserve price for the auction was fixed under Rule 54 by the Government. In the noting dated 8th February, 2019 in para 59, it has been noted that the reserve price was too low, while in para 60, there is reference to the possibility of cartelization. Learned Senior Counsel would contend that the counter affidavit filed before the court does not disclose the reasons which weighed with the Government for scrapping of auction as informed by the communication dated 26th February 2019. 254. We have extracted the counter affidavits of the respondents above and noted that the respondents had made out their case therein. In any case, in view of the fact 102 LPA No.53/2020 & connected appeals Page 102 that no rights had accrued in favour of the appellants, such objection is not available to the appellants. 255. The consideration by the State Government has been placed on affidavit before us and opportunity has been granted to the appellants to consider and respond to the same. 256. The appellants have vehemently contended the respondents suggestion that there was cartelization is without any basis. However, we have found that the decision of the respondents is based on material and consideration. 257. We may note that in the official record, the material received by the authorities pursuant to the Noting dated 2nd January, 2019 from the Director, Geology and Mining regarding the Jammu Province runs in a tabulation of 9 pages giving complete details of the auctions and the material received from Kashmir is a tabulation which runs into 35 pages. 258. We find that the Principal Secretary (I&C) had the complete details of the proceedings of the auction and the manner in which the bidding had taken place; the highest bids obtained and the names of the bidders therein. 259. In the instant case as well, Mr F. A. Natnoo has drawn our attention to the manner in which the bidding took place. 260. The material on record as above before the decision was taken, shows that while the bid for one block out of a group of blocks auctioned may be considered to be reasonably above the reserve price, the remainder of the bids by the same person/ bidder are only notionally/ insignificantly above the reserve price as noted by the authorities. The material also supports the Government observation that the successful bidder in a larger number of blocks was the same person. These factors have led to the authorities forming the view of possible cartelization. 103 LPA No.53/2020 & connected appeals Page 103 261. So far as the view regarding cartelization is concerned, similar facts were before the Supreme Court in (1972) 2 SCC 36 : State of Orissa v. Harinarayan Jaiswal, wherein the Court also considered the issue as to whether an opinion by the Government with regard to collusion among the bidders and adequacy of the price would be subject to judicial review. In Para 13 of the judgment, the Supreme Court has observed as followed: “…….. The High Court erroneously thought that the Government was bound to satisfy the Court that there was collusion between the bidders. The High Court was not sitting on appeal against the order made by the Government. The inference of the Government that there was a collusion among the bidders may be right or wrong. But that was not open to judicial review so long as it is not proved that it was a make- believe one. The real opinion formed by the Government was that the price fetched was not adequate. That conclusion is taken on the basis of Government expectations. The conclusion reached by the. Government does not affect any one's rights. Hence, in our opinion the High Court misapplied the ratio of the decision of this Court in Barium Chemicals Ltd. and anr. v. Company Law Board and ors.[1966 Supp SCR 311] and Rohtas Industries Ltd. v. S. T. Agarwal [(1969) 1 SCC 325] .” (Emphasis supplied) 262. In Harinarayan Jaiswal, the Supreme Court was called upon to consider the bindingness on the authorities of the highest bid received in an auction. We may usefully advert to the observations of the Supreme Court in this case which read as follows: “13. xxxx. As held by this Court in Cooverjee Bharucha’s case (supra), one of the important purpose of selling the exclusive right to sell liquor in wholesale or retail is to raise revenue. Excise revenue forms an important part of every State’s revenue. The Government is the guardian of the finances of the State. It is expected to protect the 104 LPA No.53/2020 & connected appeals Page 104 financial interest of the State. Hence quite naturally, the legislature has empowered the Government to see that there is no leakage in its revenue. It is for the Government to decide whether the price offered in an auction sale is adequate. While accepting or rejecting a bid, it is merely performing an executive function. The correctness of its conclusion is not open to judicial review. We fail to see how the plea of contravention of Art. 19(1)(g) or Art. 14 can arise in these cases. The Government’s power to sell the exclusive privileges set out in s. 22 was not denied. It was also not disputed that those privileges could be sold by public auction. Public actions are held to get the best possible price. ‘Once these aspects are recognised, there appears to be, no basis for contending that the owner of the privileges in question who had offered to sell them cannot decline to accept the highest bid if he thinks that the price offered is inadequate.- There is no concluded contract till the bid is accepted. Before there was a concluded contract, it was open to the bidders to withdraw their bids- see Union of India and ors. V. M/s. Bhimsen Walaiti Ram [(1970) 2 SCR 594]……..” (Emphasis by us) 263. A similar rejection of a bid/ tender where the highest bids were marginally higher than reserve price was considered by the Supreme Court in the judgment reported at 2016(1) SCC 724 : State of Punjab v. Bandeep Singh & Ors. In this case, the Director, Industries and Commerce Department, in a noting dated 18th June, 2004 had opined that the bids should not be confirmed as highest bids offered were only marginally higher than the reserve price. The two respondents/ petitioners who were highest bidders and had deposited the earnest money together with 25% of the auction bid which was admittedly only marginally higher the reserve prices fixed by the competent authority. Without conveying reasons to the appellants for not accepting their bid, the decision was taken by the respondents to re-auction the properties. 105 LPA No.53/2020 & connected appeals Page 105 264. The Supreme Court referred to an earlier pronouncement reported at 2004(8) SCC 611 : Anil Kumar Srivastav v. State of UP and the view taken by the Madras High Court in 1968 SCC (online) Madras 226 : B. Sushila v. Saraswathi Ammal, to the effect that notwithstanding the fixation of an upset price and notwithstanding the fact that the bidder has offered an amount higher than the reserved stock upset price, the sale is still open to challenge on the ground that the property has not fetched proper price and that the same be set aside. It was noted that this principle was also upheld in Ram Kishan v. State of UP while cautioning that the Government did not have a carte blanche; it cannot take any decision, it chooses; it cannot take a capricious, arbitrary or prejudice decision. Its decision must be informed and impregnated with reasons. In para-8 of Bandeep Singh, the Supreme Court observed that “the presence of cartelization or “pooling” could be a reason for cancellation of an auction process. In addition, a challenge on the ground that the property has fetched too low a bid when compared to the prevailing market price, would also be valid and permissible provided this approach has been uniformly adhered to.” 265. Sufficiency of material before the authorities and the extent of their consideration is completely beyond the pale of judicial review. The view that we are taking finds strength from the observations of the Supreme Court in the judgment reported at (1974) 2 SCC 687 (at page 694), M. A. Rashid v. State of Kerala wherein the Supreme Court sustained the decision of the State Government finding that there was material on record and that the opinion was not based on any matter extraneous to the scope and purpose of the statutory provisions and also that reasonable grounds existed for believing the existence of the state of affairs. 106 LPA No.53/2020 & connected appeals Page 106 The court also found that the decision was in public interest. The following observations in the above judgment would guide our consideration: “21. The State Government found on materials that use of machines affected the availability of retted coconut husks for equitable distribution at fair prices. The notification is on the consideration of relevant and useful material. The opinion of the State Government cannot be said to be based on any matter extraneous to the scope and purpose of the relevant provisions of the statute. The materials supporting the subjective satisfaction indicate that there are reasonable grounds for believing that the prescribed state of affairs exists and a course of action is reasonably necessary for the given purpose of equitable distribution of coconut husks at fair prices. 22. The notification is issued after due care and caution on the basis of reliable and sufficient data obtained by proper investigation and enquiries. The Government took notice of Section 38 of the Defence of India Act. The Government became satisfied about the public interest. The notification does not interfere with the avocations and enjoyment of property any more than is necessary for those purposes of equitable distribution of husks at fair price to the traditional sector.” (Emphasis supplied) 266. Before us, there is no challenge to the authority of the respondents, to effect the amendment to the rules or changes in the policy. There is not a single allegation of malafide in the decision which has been taken by the respondents by any of the appellants. No appellant has challenged the jurisdiction of the respondents to change the policy. 267. Only a limited challenge is laid as to the cancellation (“scrapping”) of the pending process for which auctions were held in 2017 in which the appellants were declared highest bidders. 268. In any case, it is not open to this court in exercise of power of judicial review to look into the view and decision of the official respondents, especially a 107 LPA No.53/2020 & connected appeals Page 107 policy decision, or to conduct the nature of enquiry which Vikar Ahmad Dar- appellant is calling upon this court to conduct. 269. Even if the reserve price had been fixed by the Government, it does not stand prohibited from re-examining the same and voicing a concern that the same was low. 270. The contention on behalf of the appellants that for intimidation of a possible bidder, physical presence of a person is necessary, is completely misconceived. In today’s time of e-communication, physical presence to intimidate any person is not necessary. 271. So far as the contention on behalf of the appellants that there was no material on record of the respondents is concerned, the same is, therefore, factually unfounded. What stands established from the record produced before us is that there was material on record to suggest the possibilities noted by the authorities. Given the information and data collected on Government record and examined in the detailed notings, it is manifest that the competent authorities have applied mind to the relevant material before taking the well considered decision purely in public interest. 272. The decision of the respondents therefore is based on facts, arrived at after application of mind to the relevant material, is in public interest and cannot be overruled on any legally tenable grounds. VII The Working of Rule 104A 273. We have grave doubts that a person who has merely participated in an auction for grant of mining lease could be covered within the meaning of the expression ‘existing quarry holders’ or ‘person extracting such minor minerals’ as incorporated in Rule 104 A. 108 LPA No.53/2020 & connected appeals Page 108 274. A reading of the transitory provision contained in Rule 104A further shows that the provision directs that the department ‘may’ issue permission for extraction of minor minerals. It is certainly unassailable that the department is required to accord consideration for issuance of permission. The use of the expression ‘may’ shows that even if he could be considered as covered under the categories mentioned in the Rule, no person has an absolute right to the permission contemplated under. Rule 104-A also does not enable the categories of persons mentioned therein to ipso facto be entitled to undertake mining operations under Rule 104-A. 275. The records of the instant case reveal a shocking state of affairs. 276. We have queried Mr. Natnoo and called upon him to place before us the grant of permissions to any person enabling the extraction and transportation of minor minerals envisaged as in Rule 104A. 277. Mr. Natnoo was unable to point out a single instance of consideration of any person for grant of the permission under Section 104A. 278. We have asked the respondents for the details of the auctions conducted and details of the mining leases which have been executed since the date 20th April 2016, when Rule 104A was incorporated. Nothing is forthcoming. 279. Our scrutiny of the record produced would also show that the respondents neither have the practice of nor follow any procedure for grant of formal permission as contemplated under Rule 104A. 280. Before us, the appellants have contended that after their bids were provisionally accepted and LoIs issued, they have effected mining of the minor 109 LPA No.53/2020 & connected appeals Page 109 minerals and paid the prescribed royalties. These appellants submit that in the acceptance of these payments of royalty, is the accordance of tacit permission to the bidders to mine for minerals. 281. A very interesting submission has been made by Mr. Raina before us. In LPA 56/2020 Chaman Lal vs. State of J&K. It has been submitted that the appellants have greatly contributed to public interest and during this period having paid a whopping amount of Rs. 1,23,55,400/- towards royalty. 282. Mr. F. A. Natnoo, AAG has given the following details of the royalties paid by all the appellants: S. No. Appellant Appellant No. in LPA No. Mineral extracted in metric tonnes (MT) Total Royalty Paid (Rs. in lacs) 1. M/s Usman Constructions Abdul Gani Lone Appellant No. 1 in LPA No. 41-A/2020 in OWP 290/2019 Titled Usman Constructions & Others V/s State and Others Nallah Muck 2493 Nallah Boulder 2270 Crushing Boulder 3325 Sand 590 RBM 8670 Total 17348 2.055 2. Sajad Ahmad Shan Appellant No. 2 in LPA No. 41-A/2020 in OWP 290/2019 Titled Usman Constructions & Others V/s State and Others Nallah Muck 1050 Nallah Boulder 1075 Crushing Boulder 896 Sand 675 RBM 885 Nallah Bajri 300 Total 4881 0.975 3. Balbir Singh Appellant No. 3 in LPA No. 41-A/2020 in OWP 290/2019 Titled Usman Constructions & Others V/s State and Others Nallah Muck 507435.16 Nallah Boulder 81100 Sand 194640 Nallah Bajri 23171.43 Total 806346.50 199.85 4. Shabir Ahmad Shiekh Appellant No. 4 in LPA No. 41-A/2020 in OWP 290/2019 Titled Usman Constructions & Others V/s State and Others Nallah Muck 160 Nallah Boulder 285 Crushing Boulder 350 Sand 90 RBM 885 Total 1770 2.058 5. Rakesh Kumar Choudhary Appellant No. 1 in LPA No. 02/2020 in OWP 325/2019 Titled Rakesh Kumar Choudhary V/s State and Others Nallah Muck/RBM 1263353 Nallah Boulder 287125 Sand 689101 Nallah Bajri 82035 Total 2321614 574.70 6. Mohd. Ashore Mir Appellant No. 1 in LPA No. 50-A/2020 in OWP No. 477/2019 titled Mohd. Ashore Mir and -- -- 110 LPA No.53/2020 & connected appeals Page 110 Others V/s State and Others 7. Manzoor Ahmad Mir Appellant No. 2 in LPA No. 50-A/2020 in OWP No. 477/2019 titled Mohd. Ashore Mir and Others V/s State and Others -- -- 8. Mohd. Shaban Bhat Appellant No. 3 in LPA No. 50-A/2020 in OWP No. 477/2019 titled Mohd. Ashore Mir and Others V/s State and Others -- -- 9. Vikar Ahmad Dar Appellant No. 1 in LPA No. 64/2020 in OWP 259/2019 titled Vikar Ahmad Dar V/s State and Others Nallah Muck 3690 Nallah Boulder 3296 Crushing Boulder 8770 Sand 2449 RBM 19160 Nallah Bajri 925 Total 38284 4.716 10. Nagar Singh Appellant No. 1 in LPA No. 07/2020 titled Nagar Singh V/s UT of J&K and Others Nallah Muck 315920 Nallah Boulder 71800 Sand 172320 RBM 885 Nallah Bajri 20514.29 Total 580554.29 143.60 S. No. Appellant Appellant No. in LPA No. Mineral extracted in metric tonnes (MT) Total Royalty Paid (Rs. in lacs) 11. Chaman Lal Appellant No. 1 in LPA No. 05/2020 titled Chaman Lal V/s UT of J&K and Others Nallah Muck 287254.99 Nallah Boulder 65285.23 Sand 156684.54 RBM 885 Nallah Bajri 18652.92 Total 527875 130.57 12. Mohd. Farooq Lone Appellant No. 1 In LPA No. 63/2020 in OWP 344/2019 titled Mohd. Farooq Lone and others V/s State and Others Nallah Muck 4788 3.697 13. Riyaz Ahmad Sofi Appellant No. 2 in LPA No. 63/2020 in OWP 344/2019 titled Mohd. Farooq Lone and others V/s State and Others Nallah Muck 800 0.20 14. Ajaz Ahmad Magray Appellant No. 3 in LPA No. 63/2020 in OWP 344/2019 titled Mohd. Farooq Lone and others V/s State and Others Nallah Muck 7000 1.750 15. Tariq Majnoon Mir Appellant No. 4 in LPA No. 63/2020 in OWP 344/2019 titled Mohd. Farooq Lone and others V/s State and Others Nallah Muck 4160 1.04 16. Riyaz Ahmad Bhat Appellant No. 5 in LPA No. 63/2020 in OWP 344/2019 titled Mohd. Farooq Lone and others V/s State and Others Nallah Muck 8440 2.11 17. Tanveer Ahmad Mir Appellant No. 6 in LPA No. 63/2020 in OWP 344/2019 titled Mohd. Farooq Lone and others V/s State and Others Nallah Muck 368456 9.211 111 LPA No.53/2020 & connected appeals Page 111 283. Our attention is drawn to the Schedule-I to the Rules of 2016 whereby the Rates of Royalty of Minor Minerals [Rule 38(1(i)(ii), 50(I), 70] have been 18. Ab. Hamid Mir Appellant No. 7 in LPA No. 63/2020 in OWP 344/2019 titled Mohd. Farooq Lone and others V/s State and Others Nallah Muck 17568 4.392 19. Abdul Ahad Wani Appellant No. 8 in LPA No. 63/2020 in OWP 344/2019 titled Mohd. Farooq Lone and others V/s State and Others Nallah Muck 7256 1.814 20. Nazir Ahmad Mir Appellant No. 9 in LPA No. 63/2020 in OWP 344/2019 titled Mohd. Farooq Lone and others V/s State and Others Nallah Muck 10360 2.59 21. Mohd. Amin Bhat Appellant No. 10 in LPA No. 63/2020 in OWP 344/2019 titled Mohd. Farooq Lone and others V/s State and Others Nallah Muck 2752 0.688 22. Rahil Mohiuddin Dar Appellant No. 11 in LPA No. 63/2020 in OWP 344/2019 titled Mohd. Farooq Lone and others V/s State and Others Nallah Muck 3944 0.986 S. No. Appellant Appellant No. in LPA No. Mineral extracted in metric tonnes (MT) Total Royalty Paid (Rs. in lacs) 23. Tariq Ahmad Sheikh Appellant No. 12 in LPA No. 63/2020 in OWP 344/2019 titled Mohd. Farooq Lone and others V/s State and Others Nallah Muck 28200 7.055 24. Shakeel Ahmad Bhat Appellant No. 13 in LPA No. 63/2020 in OWP 344/2019 titled Mohd. Farooq Lone and others V/s State and Others Nallah Muck 15820 3.955 25. Firdous Ahmad Mir Appellant No. 14 in LPA No. 63/2020 in OWP 344/2019 titled Mohd. Farooq Lone and others V/s State and Others Nallah Muck 7520 1.88 26. Ab. Rashid Lone Appellant No. 15 in LPA No. 63/2020 in OWP 344/2019 titled Mohd. Farooq Lone and others V/s State and Others Nallah Muck 5840 1.46 27. Shahnawaz Ahmad Bhat Appellant No. 1 in LPA No. 77/2020 titled Shahnawaz Ahmad Bhat and Others V/s UT of J&K and Others Nallah Muck 970 0.242 28. Mohd. Ayoub Lone Appellant No. 2 in LPA No. 77/2020 titled Shahnawaz Ahmad Bhat and Others V/s UT of J&K and Others Nallah Muck 970 0.242 112 LPA No.53/2020 & connected appeals Page 112 prescribed by the Govt. So far as nallah boulders, bajri, sand are concerned, the rates stretch from Rs. 20/MT for nallah boulders to Rs. 30/MT for screened sand. For ordinary nallah sand and nallah which has been extracted by the appellants, royalty stands fixed at Rs.25/MT. 284. We made an attempt to assess the value of the extracted material. Mr Sunil Sethi, ld. Senior counsel, appearing for the interveners has informed us that so far as the cost of a single tipper of the minor mineral (sand) is concerned, the miner sells the same @ Rs. 15000/ per tipper. At the above rate of royalty, against payment of royalty of rupees one lakh by a bidder, the quantity of minerals which would have been mined would be to the tune of 4000 tonnes. Assuming that one tipper carries a load of 5 tonnes, then 4000 tonnes translated into 800 tippers. These 800 tipper loads, at the rate would have earned Rs 15000/ tipper would thus fetch Rs. 15000 x 800 = 1,20,00,000.00 to the bidder, that too on a very rough estimate. 285. The above tabulation manifests the extent to which the appellants have thus exploited the minor minerals without the required formal order permitting them to do so, most importantly without EC. 286. Mr Sunil Sethi, has submitted that the second clause of the communication dated 26th February 2019 to the effect that the existing mechanism would continue was also contrary to the prohibition contained in Section 4 of the Act of 1957 as well as the pronouncement of the Supreme Court in Deepak Kumar and cannot be permitted. There is merit in this submission. 113 LPA No.53/2020 & connected appeals Page 113 287. We have noted above that the last extension of Rule 104-A was upto 28th February, 2019. Did the extraction of minor minerals by the bidders (present appellants) of 2016 auctions cease thereafter? 288. It appears that in the writ petitions which were filed, the learned Single Judges of the Court granted interim orders in favour of the writ petitioners/ appellants. For instance in OWP 259/2019, filed by Vikar Ahmad Dar, an interim order dated 13th March, 2019 was passed restraining the respondents from acting upon the condition No.1 of the impugned communication dated 26.02.2019. An interim order dated 1st April, 2019 was passed in OWP 363/2019 filed by Ashaq Hussain Padder (Nagar Singh was petitioner no.5 in this order). Similar orders were passd in the other writ petitions as well. 289. We are informed that utilizing the shield of the second clause of the impugned letter dated 26th February, 2019 and the interim orders by Ld. Single Judges in the writ petitions, these bidders continued with their illegal activity. 290. In this background, it appears that the J&K Pollution Control Board was compelled to address a letter dated 12th November, 2019 to the Director of the Geology and Mining Department (extracted above). This letter contains a reference to a previous notice dated 16th October, 2019 from the Pollution Control Board to the authority and its response dated 21st October, 2019. The letter dated 12th November, 2019 from the J&K Pollution Control Board speaks volumes about the manner in which the Geology and Mining Department of the Government of Jammu and Kashmir has conducted itself. This letter interalia directed the respondents to ensure that no extraction of minor minerals “from today” is done in the State in defiance of the laws governing environmental protection. 114 LPA No.53/2020 & connected appeals Page 114 291. The respondents now had no choice but to comply with the communication from the Pollution Control Board. It is noteworthy that none of the appellants have challenged the letter dated 12th November, 2019. 292. We have before us a copy of one application being IA No.7798/2019 in OWP No.363/2019 which was filed on 24th December, 2019 by the respondents seeking modification of the interim order dated 1st of April, 2019 passed by the Court in OWP. Along with this application, the afore noticed orders of the NGT and a copy of the letter dated 12th November, 2019 of the J&K Pollution Control Board had been filed. It appears that no order came to be passed on this application. 293. We may note that we have no information from these appellants as to whether they complied with the directions contained in the letter dated 12th April, 2019. 294. The learned Single Judge has observed in para 74 of the impugned judgment that he did not have the above information with regard to the extent of the environmental degradation caused by indiscriminate mining operations carried out by the appellants under the shield of Rule 104-A. We have attempted above an estimation of the extent of mining undertaken by the appellants, the impact whereof would need a scientific evaluation by experts. 295. While deriving such huge commercial profits, these appellants have deprived the State of valuable financial resources in terms of the unpaid balance bid amount which was to be paid within a period of six months of the issuance of the LoI. Clearly, instead of serving public interest, these appellants have in fact caused grave loss to public interest. 115 LPA No.53/2020 & connected appeals Page 115 VIII An important ‘subsequent’ fact-conduct of e-auctions 296. After the passing of the impugned judgment dated 1st May, 2020, the respondents put all the blocks to e-auction pursuant to public notices issued between 27th May, 2020 to 1st June, 2020. For the e-auctions, the respondents had fixed reserve prices which were either almost equal to or way higher than the reserve prices fixed for the auctions of 2016/2017. 297. Some of the instant appeals had been filed and were under consideration before us. We had declined any interim orders interdicting the e-auctions. We are informed that these auctions stand concluded. 298. We have been informed that the appellants unconditionally and unreservedly participated in the e-auctions and submitted bids. 299. Mr. Natnoo, has placed before us a comparative tabulation of the details of the minor mineral blocks relating to the minimum reserve prices’ and the highest bids offered in the open auctions in 2017 as well as in the e-auction conducted in 2020. It is submitted by Mr. Natnoo, ld AAG that copies of these documents have been furnished to all the counsels. For expediency we extract hereunder some of these details. S. No Name of appellant Block no. Area in hactare Open Auction E-Auction Minimum Reserve Bid (Rs.in lacs) Highest Bid offered (Rs.in lacs) Minimu m Reserve Bid (Rs. in lacs) Highest Bid offered (Rs. in lacs) District Poonch 1 Appellant No.3 in LPA No.41-A/2020 titled Usman Constructions & Ors. V. State and others 4 8.86 4.41 4.61 15.95 55.75 2 -do- 8 6.09 3.13 3.50 10.96 108.36 116 LPA No.53/2020 & connected appeals Page 116 3 -do- 9 8.80 4.38 4.82 15.84 60.14 4 -do- 18 7.00 0.77 0.85 12.60 37.00 5 -do- 20 6.25 0.68 16.01 11.25 80.25 District Rajouri 6 Appellant No.1 in LPA No.02/2020 in OWP 325/2019 titled Rakesh Kumar Choudhary V/s State and ors. 1/1 8.61 5.52 6.25 17.05 150.25 7 -do- 1/2 7.89 5.04 6.00 15.62 80.52 8 -do- 1/5 9.51 5.09 5.80 18.83 226.53 9 -do- 2/1 7.37 2.72 3.80 14.59 72.09 10 -do- 2/2 9.52 3.13 4.25 18.85 85.65 11 -do- 2/6 9.34 3.06 4.10 18.49 73.89 12 -do- 3/4 9.61 3.10 3.90 19.03 167.93 13 -do- 3/5 9.62 3.10 4.00 19.05 201.85 14 -do- 3/7 8.36 3.00 3.90 16.55 143.15 S. No Name of appellant Block no. Area in hactare Open Auction E-Auction Minimum Reserve Bid (Rs.in lacs) Highest Bid offered (Rs.in lacs) Minimu m Reserve Bid (Rs. in lacs) Highest Bid offered (Rs. in lacs) District Kishtwar 15 Appellant No.1 in LPA No.02/2020 in OWP 325/2019 titled Rakesh Kumar Choudhary v. State and Ors. III/2 2.00 0.33 1.00 3.60 111.70 District Jammu 16 Appellant No.1 in LPA No.07/2020 titled Nagar Singh V. UT of J&K and Ors. 5/6 9.90 1.25 26.01 22.95 300.25 17 -do- 5/7 9.98 1.10 25.40 23.13 226.93 18 Appellant No.3 in LPA No.41-A/2020 in OWP 290/2019 titled Usman Constructions & Ors. V. State and Ors. 5/21 9.67 3.10 5.71 21.24 100.14 19 -do- 5/23 9.98 3.20 4.76 21.92 120.12 20 -do- 5/32 9.80 1.20 2.25 21.52 45.12 21 Appellant No.1 in LPA No.07/2020 titled Nagar Singh 1/7 9.25 1.0 13.00 21.44 40.04 117 LPA No.53/2020 & connected appeals Page 117 V. UT of J&K & Ors. 22 -do- 5/3 9.94 1.50 170.00 23.04 308.44 23 -do- 5/4 9.32 1.25 141.00 21.60 285.60 24 -do- 5/13 8.69 0.70 1.00 19.08 38.38 25 -do- 5/29 9.89 2.00 3.00 21.72 44.12 District Reasi 26 Appellant No.1 in LPA No.05/2020 titled Chaman Lal v. UT of J&K & Ors. 7 9.60 4.51 5.26 24.54 70.74 27 -do- 10 6.28 1.39 1.65 16.05 58.25 28 -do- 13 9.80 2.16 2.60 25.05 103.25 29 -do- 14 9.51 2.10 2.60 24.31 125.01 30 -do- 15 9.08 2.01 2.51 23.21 128.71 31 -do- 16 8.20 1.81 2.50 20.96 101.36 District Samba 32 Appellant No.1 in LPA No.02/2020 in OWP 325/2019 titled Rakesh Kumar Choudhary v. State & Ors. 1/4 9.23 4.67 5.00 21.93 161.23 S. No Name of appellant Block no. Area in hactare Open Auction E-Auction Minimum Reserve Bid (Rs.in lacs) Highest Bid offered (Rs.in lacs) Minimu m Reserve Bid (Rs. in lacs) Highest Bid offered (Rs. in lacs) 33 -do- 1/5 9.51 4.81 5.10 22.60 100.20 34 -do- 1/6 9.58 4.84 5.50 22.76 125.06 35 -do- 1/11 9.66 4.89 5.60 22.95 120.15 36 -do- 1/13 9.98 5.05 5.75 23.71 285.41 37 -do- 2/2 6.80 14.65 18.75 17.05 785.05 38 -do- 2/4 9.59 20.65 21.00 24.05 328.35 39 -do- 3/1 9.28 14.78 16.00 23.37 205.57 40 -do- 3/2 9.23 14.90 16.50 23.15 130.35 41 -do- 3/3 9.55 15.21 16.50 23.95 201.15 District Kulgam 42 Appellant No.1 in LPA No.41-A/2020 in OWP 290/2019 Titled Usman Constructions & Ors. V. State & Ors 12 4.46 2.10 2.20 6.82 84.32 43 Appellant No.4 in LPA No.41-A/2020 in OWP 290/2019 titled Usman Constructions & Ors. V. State & Ors. 18 4.09 2.0 2.20 6.25 128.85 44 Appellant No.2 in LPA No.41-A/2020 19 9.52 4.40 4.70 14.55 111.15 118 LPA No.53/2020 & connected appeals Page 118 in OWP 290/2019 titled Usman Constructions & Ors. V. State & Ors. 45 Appellant No.1 in LPA 64/2020 in OWP 259/2019 titled Vikar Ahmad Dar V. State & Ors. 22 4.27 2.0 2.20 6.53 56.93 46 In LPA No.41- 47A/2020 in OWP 290/2019 titled UsmanConstruction s & Ors. V. State & Ors. 23 9.09 4.20 4.75 13.90 137.00 District Kupwara 48 Appellant No.1 in LPA No.63/2020 in OWP 344/2019 titled Mohd. Farooq Lone & Ors. V. State & Ors. 5 4.33 2.10 2.50 6.60 76.80 S. No Name of appellant Block no. Area in hactare Open Auction E-Auction Minimum Reserve Bid (Rs.in lacs) Highest Bid offered (Rs.in lacs) Minimu m Reserve Bid (Rs. in lacs) Highest Bid offered (Rs. in lacs) 49 Appellant No.5 in LPA No.63/2020 in OWP No.344/2019 titled Mohd. Faroq Lone & Ors. V. State & Ors 6 3.39 1.70 2.00 5.20 134.00 50 Appellant No.6 in LPA No.63/2020 titled Mohd. Farooq Lone & Ors v. State and others. 7 9.76 1.20 1.50 14.90 156.30 51 Appellant No.7 in LPA No.63/2020 in OWP 344/2019 titled Mohd. Farooq Lone & Ors. Vs. State & Ors. 8 8.29 1.00 1.20 12.70 81.80 52 Appellant No.8 in LPA No.63/2020 in OWP 344/2019 titled Mohd. Farooq Lone & Ors. V. State & Ors. 9 9.40 1.10 1.30 14.40 125.20 53 Appellant No.9 in 10 10.00 1.20 1.40 15.30 133.20 119 LPA No.53/2020 & connected appeals Page 119 LPA No.63/2020 in OWP 344/2019 titled Mohd. Farooq Lone & Ors. Vs. State & Ors. 54 Appellant No.10 in LPA No.63/2020 in OWP 344/2019 titled Mohd. Farooq Lone & Ors. Vs. State & Ors. 11 2.41 0.30 0.50 3.70 108.30 55 Appellant No.11 in LPA No.63/2020 in OWP 344/2019 titled Mohd. Farooq Lone & Ors. Vs. State & Ors 12 4.20 0.50 0.70 6.40 64.20 56 Appellant No.12 in LPA No.63/2020 in OWP 344/2019 titled Mohd. Farooq Lone & Ors. Vs. State & Ors 14 6.38 3.60 3.90 10.40 177.70 S. No Name of appellant Block no. Area in hactare Open Auction E-Auction Minimum Reserve Bid (Rs.in lacs) Highest Bid offered (Rs.in lacs) Minimu m Reserve Bid (Rs. in lacs) Highest Bid offered (Rs. in lacs) 57 Appellant No.13 in LPA No.63/2020 in OWP 344/2019 titled Mohd. Farooq Lone & Ors. Vs. State & Ors 15 2.73 1.50 1.90 4.20 100.80 58 Appellant No.13 in LPA No.63/2020 in OWP 344/2019 titled Mohd. Farooq Lone & Ors. Vs. State & Ors 16 8.89 4.60 5.10 13.60 101.60 59 Appellant No.14 in LPA No.63/2020 in OWP 344/2019 titled Mohd. Farooq Lone & Ors. Vs. State & Ors 17 8.82 4.60 5.00 13.50 118.40 60 Appellant No.15 in LPA No.63/2020 in OWP 344/2019 titled Mohd. Farooq Lone & Ors. Vs. State & Ors 18 10.00 5.20 5.60 15.30 31.50 61 Appellant No.11 in LPA No.63/2020 in 19 3.39 1.80 2.20 5.20 56.70 120 LPA No.53/2020 & connected appeals Page 120 OWP 344/2019 titled Mohd. Farooq Lone & Ors. Vs. State & Ors District Shopian 62 Appellant No.2 in LPA No.____/ 2020 titled Shahnawaz Ahmad Bhat & Ors. V. UT of J&K & Ors. 19 9.68 2.30 3.00 14.7988 54.0988 District Pulwama 63 Appellant No.2 in LPA No.50-A/2020 in OWP No.477/2019 titled Mohd. Ashore Mir & Ors. V. State & Ors. 1 4.62 2.66 35.10 7.10 225.50 64 Appellant No.1 in LPA No.50-A/2020 in OWP No.477/2019 titled Mohd. Ashore Mir & Ors. V. State & Ors. 2 4.63 2.60 32.00 7.10 370.00 S. No Name of appellant Block no. Area in hactare Open Auction E-Auction Minimum Reserve Bid (Rs.in lacs) Highest Bid offered (Rs.in lacs) Minimu m Reserve Bid (Rs. in lacs) Highest Bid offered (Rs. in lacs) 65 Appellant No.3 in LPA No.50-A/2020 in OWP No.477/2019 titled Mohd. Ashore Mir & Ors. V. State & Ors. 4 4.07 2.30 31.10 6.20 237.90 300. The working of the e-auctions manifests that the decision to auction mining leases by e-mode was in the best interest of the State and has certainly lead to maximization of the revenue. 301. The outcome of these e-auctions illustrates and underlines another huge deficiency in the available capacities as well as capabilities of the Union Territory of Jammu and Kashmir. The above tabulation reveals an astounding state of affairs. For instance, with regard to Block 8 in District Poonch, whereas in the open auction of 2016 the appellant no.3 in Usman Constructions & Others v. State of J&K, had submitted the highest bid of Rs. 121 LPA No.53/2020 & connected appeals Page 121 3.50 lakhs (against reserve price of Rs.3.13 Lakhs) in the e-auction for the same block, he has offered a bid of Rs. 108.36 lakhs (against the reserve price of Rs. 10.96 lakhs). 302. With regard to Block 2/2 in District Samba, in the open auction of 2016, Rakesh Kumar Choudhary (appellant no.1 in LPA 2/20) had submitted the highest bid of Rs.18.75 lakhs (against reserve price of Rs. 14.65 lakhs). Now in the e-auction he has offered the highest bid of Rs. 785.05 lakhs (against reserve prices of Rs. 17.05 lakhs). 303. In his affidavit dated 1st June, 2019, Vikar Ahmad Dar has stated that the notings in para 63 of the official file to the effect that e-auction would fetch higher amount of revenue than the open auction, is merely a speculation. The above figures establish the truth in what was apprehended by the Government authorities. 304. The above tabulation in fact establishes some more critical factors. 305. The first is that the suspicion of the respondents that cartelization controlled the earlier auction was not unfounded. The levels of the highest bids fetched in the e-auction; their ratios vis-à-vis the reserve prices and the highest bids for those very blocks by the same bidder in earlier auctions of 2016/2017. 306. We find a second important aspect which needs to be urgently addressed. The fixation of the minimum reserve price for grant of mining leases in accordance with Rule 54 of the Rules of 2016, by the respondents regarding the e- auctions is not optimal or realistic. It appears to be much lower than the market price and hence detrimental to public interest as well as the fiscal interest of the Union Territory. 307. Even though the respondents appear to have raised the minimum reserve price for conducting e-auctions in 2020 from the reserve price fixed for open 122 LPA No.53/2020 & connected appeals Page 122 auction conducted in 2016, still from the bids which have been fetched, it appears that the prices are unrealistically low. 308. It is evident, therefore, that the respondents do not have the expertise or the capacity to evaluate the optimum level at which the reserve prices ought to be fixed. In the e-auctions of 2020 though the bids are much higher than the bids of 2017, still there may be possibility of even higher bids. 309. It appears that a professional and qualified agency is urgently needed to examine this matter and advise the respondents as grave financial prejudice results. 310. The terms and conditions on which auctions are conducted do not incorporate basic reservations ensuring public interest and efficiency in the responses of bidders and deserve a professional relook. 311. Clearly very urgent measures are needed to secure the financial interests of the Union Territory and hence public interest. IX Scope of judicial review in administrative action and matters relating to award of contract/ tenders/ auctions 312. It is necessary to conduct an examination on the limits of the powers of judicial review of the writ court in such matters. The appellants have called upon us to examine the decision of the respondents in scrapping an entire auction. Is it permissible for this Court to conduct judicial review into the questions urged? 313. It has been held in a catena of judgments that in exercise of its power of judicial review, into state action, be it legislative, executive, administrative or quasi judicial, the court is not entitled to consider the correctness of the decision on its independent judgment and the exercise of power of judicial review by the court is limited to considering the ‘reasonableness’ of the finding reached by the authority which must be on application of mind to all relevant matters and in good 123 LPA No.53/2020 & connected appeals Page 123 faith. We may usefully extract the following observations of the Supreme Court in the judgment reported at (1990) 3 SCC 233 (at page 252), Sri Sita Ram Sugar Co. Ltd v. U. O. I: “46.Any arbitrary action, whether in the nature of a legislative or administrative or quasi-judicial exercise of power, is liable to attract the prohibition of Article 14 of the Constitution. As stated in E.P. Royappa v. State of Tamil Nadu & Anr., [ 1974) 4 SCC 3 : 1974 SCC (L&S) 165 : (1974] 2 SCR 348], \"equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.\" Unguided and unrestricted power is af- fected by the vice of discrimination: Maneka Gandhi v. Union of India & Anr., [1978] 1 SCC 248, 293-294 ; AIR 1978 SC 597]. The principle of equality enshrined in Article 14 must guide every state action, whether it be legislative, executive, or quasi- judicial: Ramana Dayaram 'Shetty v. The International Airport Authority of India & Ors., [1979] 3 SCR 1014 at 1042; Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors.. [1981] 1 SCC 722 and D.S. Nakara & Ors. v. Union of India, [1983] SCC (L&S) 145]. 47.Power delegated by statute is limited by its terms and subordinate to its objects. The delegate must act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts. All his decisions, whether characterised as legislative or administrative or quasi-judicial, must be in harmony with the Constitution and other laws of the land. They must be \"reasonably related to the purposes of the enabling legislation\". See Leila Mourning v. Family Publications Service, [411 US 356, 36 L Ed. 2d318]. If they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or do not tend in some degree to the accomplishment of the objects of delegation, courts might well say, \"Parliament never intended to give authority to make such rules; they 124 LPA No.53/2020 & connected appeals Page 124 are unreasonable and ultra vires\". per Lord Russel of Killowen, C.J. in Kruse v. Johnson, [1898] 2 Q.B. 91, 99: 78 LT 647]. 48. The doctrine of judicial review implies that the reposi- tory of power acts within the bounds of the power delegated and he does not abuse his power. He must act reasonably and in good faith. It is not only sufficient that an instrument is intra vires the parent Act, but it must also be consist- ent with the constitutional principles: Maneka Gandhi v. Union of India, [1978] 1 SCC 248, 293-94 : AIR 1978 SC 597] (SCC pp. 314-315). 49.Where a question of law is at issue, the Court may determine the rightness of the impugned decision on its own independent judgment. If the decision of the authority does not agree with that which the Court considers to be the right one, the finding of law by the authority is liable to be upset. Where it is a finding of fact, the Court examines only the reasonableness of the finding. When that finding is found to be rational and reasonably based on evidence, in the sense that all relevant material has been taken into account and no irrelevant material has influenced the decision, and the decision is one which any reasonably minded person acting on such evidence, would have come to, then judicial review is exhausted even though the finding may not necessarily be what the Court would have come to as a trier of fact. Whether an order is characterised as legislative or administrative or quasi-judicial, or, whether it is a determination or law or fact, the judgment of the expert body, entrusted with power, is generally treated as final and the judicial function is exhausted when it is found to have \"warrant in the record\" and a rational basis in law: See Rochester Tel. Corp. v. United States, [1939] 307 U.S. 125, 83 L. Ed. 1147. See also Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223 : (1947) 1 All ER 498]. 125 LPA No.53/2020 & connected appeals Page 125 50.As stated by Lord Hailsham of St. Marylebone L.C., (H.L.) in Chief Constable of the North Wales Police v. Evans, [1982] 1 WLR 1155 at 1160-61: \"The function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law .......... The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court\". In the same case Lord Brightman says: \"Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made\". 51.A repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissi- ble purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness. See Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223. In the words of Lord Macnaghten in Westminster Corporation v. London and North Western ' Railway, [1905] AC 426, 430: 93 LT 143] \" ..... It is well settled that a public body invested with statutory powers such as those conferred upon the Corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority commit- ted to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first.....\". In The Barium Chemicals Ltd. & Anr. v. The Company Law Board & Ors., [1966] Supp. SCR 311, this Court states: 126 LPA No.53/2020 & connected appeals Page 126 \" ..... Even if (the statutory order) is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts\". (Emphasis supplied) 314. In Sri Sita Ram Sugar Co. Ltd , the Supreme Court has finally concluded as follows: “52.The true position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi- judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it [See the observation of Lord Russel in Kruse v. Johnson, [1898] 2 Q.B. 91 and that of Lord Greene, M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223; See also Mixnam Properties Ltd. v. Chertsey U.D.C., [1965] AC 735; Commissioners of Customs and Excise v. Cure and DeeIcy Ltd. [1962] 1 Q.B. 340; McEldowney v. Forde, [1971] AC 632 (H.L.); Carltona Ltd. v. Commissioners of Works, [1943] 2 All ER 560, 564; Point of Ayr. Collieries Ltd. v. Lloyd George, [1943] 2 All ER 546; Scott v. Glasgow Corporation, [1899] AC 470, 492; Robert Baird L.D.v. City of Glasgow, [1936] AC 32, 42; Manhattan General Equipment Co. v. Commissioner, [1935] 297 US 129, 134; Yates (Arthur) & Co. Pty. Ltd. v. Vegetable Seeds 127 LPA No.53/2020 & connected appeals Page 127 Committee, [1945-46] 72 CLR 37; Bailey v. Conole, [1931] 34 WALR 18; Boyd Builders Ltd. v. City of Ottawa, [1964] 45 DLR (2d) 211; Re Burns and Township of Haldimand, [1966] 52 DLR (2d) 10 14 and Lynch v. Tilden Produce Co. 265 US 3 15,320-322].” (Emphasis by us) 315. The parameters of a court’s power of judicial review of administrative or executive action or decision also stand considered by the Supreme Court of India in its judgment reported at (1988) 4 SCC 59, State of U.P. v. Renusagar Power Co. The Supreme Court referred to the authoritative text on administrative law in Wade on Administrative Law, 5th Edition, pages 506/507 and Bennion on Statutory Interpretation, 1984 Edition, pages 140-141 and Principles of Australian Administrative Law, 6th Edition;, pp. 210-212 and observed as follows: “…….The exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. Similarly, if the power has been exercised on a non- consideration or non- application of mind to relevant factors the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. See Commissioner of Income Tax v. Mahindra & Mahindra Ltd. Ors., [1983] 3 S.C.R. 773 at 786- 787: AIR 1984 SC 1182: (1983) 54 Com Cas 6511......” (Emphasis by us) 316. Much light is shed on the examination which the court would undertake on the exercise of power by public authorities in the judgment of the Supreme reported at (1974) 2 SCC 687 (at page 690), M. A. Rashid v. State of Kerala, wherein it is held as under: 128 LPA No.53/2020 & connected appeals Page 128 “7. There is no principle or authority in support of the view that whenever a public authority is invested with power to make an order which prejudicially affects the rights of an individual whatever may be the nature of the power exercised, whatever may be the procedure prescribed and whatever may be the nature of the authority conferred, the proceedings of the public authority must be regulated by the analogy of rules governing judicial determination of disputed questions (see Sadhu Singh v. Delhi Administration. AIR 1966 SC 91). 8. Where powers are conferred on public authorities to exercise the same when “they are satisfied” or when “it appears to them”, or when “in their opinion” a certain state of affairs exists; or when powers enable public authorities to take “such action as they think fit” in relation to a subject matter, the courts will not readily defer to the conclusiveness of an executive authority's opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated. 9. Where reasonable conduct is expected the criterion of reasonableness is not subjective, but objective. Lord Atkin in Liversidge v. Anderson 1942 AC 206, 228-229 said: “If there are reasonable grounds, the Judge has no further duty of deciding whether he would have formed the same belief any more than, if there is reasonable evidence to go to a jury, the Judge is concerned with whether he would have come to the same verdict.” The onus of establishing unreasonableness, however, rests upon the person challenging the validity of the acts. 10. Administrative decisions in exercise of powers even if conferred in subjective terms are to be made in good faith on relevant consideration. The courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or the facts in a material respect. The standard of reasonableness to which the administrative body is required to conform may range from the courts' own opinion of what is reasonable to the criterion of what a reasonable body might have decided. The courts will find out whether conditions precedent to the formation of the opinion have a factual basis. 129 LPA No.53/2020 & connected appeals Page 129 11. In Rohtas Industries Ltd. v. S.D Agarwala 1969 1 SCC 325 an order under Section 237 (b) (i) and (ii) of the Companies Act for investigation of the affairs of the company was challenged on the ground that though the opinion of the Government is subjective, the existence of the circumstances is a condition precedent to the formation of the opinion. It was contended that the Court was not precluded from going behind the recitals of the existence of such circumstances in the order, but could determine whether the circumstances did in fact exist. This Court said that if the opinion of an administrative agency is the condition precedent to the exercise of the power, the relevant matter is the opinion of the agency and not the grounds on which the opinion is founded. If it is established that there were no materials at all upon which the authority could form the requisite opinion, the Court may infer that the authority passed the order without applying its mind. The opinion is displaced as a relevant opinion if it could not be formed by any sensible person on the material before him.” (Emphasis by us) 317. So far as change of policy in exercise of executive power (also in issue before us) and a challenge thereto is concerned, again the power of judicial review is restricted. Valuable light is thrown on the exercise of its discretion in the judgment of the Supreme Court reported at (2003) 5 SCC 437 (at pages-445 & 447), Union of India v. International Trading Co. in the following terms: “15. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in 130 LPA No.53/2020 & connected appeals Page 130 essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness. 16. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary. X x x x 22. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. As noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed.” (Emphasis by us) 318. We may usefully extract the binding principles on the scope of judicial review in matters of award of Govt. contracts as have been laid down in the celebrated judgment of the Supreme Court reported at (1994) 6 SCC 651, Tata Cellular v. Union of India, in which it has been held as under: “94. The principles deducible from the above are: (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. 131 LPA No.53/2020 & connected appeals Page 131 (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi- administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. Based on these principles we will examine the facts of this case since they commend to us as the correct principles.” (Emphasis supplied) The above authoritative principles have guided adjudication in challenges to administrative action. 319. We may usefully advert to the illuminating consideration, on the exercise of power of judicial review in commercial matters including tenders and award of contracts, by the Supreme Court in the judgment reported at (2007) 14 SCC 517, Jagdish Mandal v. State of Orissa. In Para 22, it was held as under: “22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” 132 LPA No.53/2020 & connected appeals Page 132 and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”; (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal 133 LPA No.53/2020 & connected appeals Page 133 consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.” (Emphasis by us) 320. On the aspect of challenge to and scope of judicial review (as at present) of decisions relating to laying down of conditions of award of tenders, valuable guidance is provided by the authoritative pronouncement of the Supreme Court in the judgment reported at (2012) 8 SCC 216, Michigan Rubber (India) Ltd. V. State of Karnataka, the Supreme Court has observed as follows: “23. From the above decisions, the following principles emerge: (a) the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted; 134 LPA No.53/2020 & connected appeals Page 134 (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim fundamental right to carry on business with the Government. 24. Therefore, a Court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached; and (ii) Whether the public interest is affected. If the answers to the above questions are in negative, then there should be no interference under Article 226.” (Emphasis by us) 321. These are the considerations which would weigh with us while undertaking an examination of the grounds pressed before us. 322. The Supreme Court had noted the scope of judicial review in the matter relating to award of contract in the judgment reported at AIR 2009 SCW 470, Seimens Public Communication Networks (P) Limited v. Union of India, wherein it has been held that in such a case, certain special features have to be considered. A contract is a commercial transaction and evaluating tenders and awarding contracts are essential commercial functions. In such cases, principles of equity and natural justice stay at a distance. If the decision relating to award of 135 LPA No.53/2020 & connected appeals Page 135 contracts is bonafide and is in public interest, Courts will not exercise the power of judicial review and interfere even if it is accepted for the sake of argument that there is procedural lacuna. 323. In the pronouncement of the Supreme Court in (2015) 13 SCC 233, Rishi Kiran Logistics Pvt. Ltd v. Board of Trustees of Kandla Port Trust and ors., also the Supreme Court considered the validity of enbloc cancellation of the entire tenders. 324. In para-20 of the judgment, the Supreme Court observed that ‘it was obvious that larger public interest demand a fresh tender process in order to receive maximum amount as the premium of Rs.612/sq.meter originally fixed and even the quotation of the appellant which had been found to be highest was far below the market rate in 2010”. The Supreme Court also noted that even when the total premium amount to be paid by the appellant was to the tune of several crores for these plots at which the LoI was issued in the year 2006, the appellant had paid only Rs. 3 lakhs by way of earnest money deposited in each case. No further amount was paid for want of the allotment letter. 325. In para 21, the Supreme Court held that in the above facts, there was “hardly any scope for argument that the decision of the Port Trust is arbitrary. It is based on valid considerations.” 326. The court considered precedents and held as follows (in Rishi Kiran Logistics): “26. In Tejas Constructions and Infrastructure (P) Ltd. v. Municipal Council, Sendhwa & Anr.; 2012 (6) SCC 464, the Court was dealing with the case of challenge to the awarding of contract to the 2nd respondent in the writ petition on the ground that he had not 136 LPA No.53/2020 & connected appeals Page 136 complied with eligibility requirements in NIT. Paragraph 17 of that case reads as follows: “17. In Raunaq International Ltd. v. IV.R. Construction Ltd. (1999) 1 SCC 492, this Court reiterated the principle governing the process of judicial review and held that the writ court would not be justified in interfering with commercial transaction in which the State is one of the parties to the same except where there is substantial public interest involved and in cases where the transaction is mala fide.” 27. In so far as argument of malafides is concerned, apart from bald averment, there are no pleadings and there is not even a suggestion as to how the aforesaid decision was actuated with malafides and on whose part. Even at the time of arguments Mr. Vikas Singh did not even advert to this aspect. In fact, the entire emphasis of Mr. Vikas Singh was that since there was a concluded contract between the parties, cancellation of such a contract amounted to arbitrariness. As already pointed out above that can hardly be a ground to test the validity of a decision in administrative law. For the sake of argument, even if you presume that there a concluded contract, mere termination thereof cannot be dubbed as arbitrary. A concluded contract if terminated in a bonafide manner, that may amount to breach of contract and certain consequences may follow thereupon under the law of contract. However, on the touch stone of parameters laid down in the administrative law to adjudge a decision as are arbitrary or not, when such a decision is found to be bonafide and not actuated with arbitrariness, such a contention in administrative law is not admissible namely how and why a concluded contract is terminated. 28. We, therefore, reject this contention of the appellant.” (emphasis supplied) 137 LPA No.53/2020 & connected appeals Page 137 327. Before us, the appellants do not even remotely suggest any malafide in the action and decision making by the respondents. Other than the submission that the enbloc cancellation of the auctions in their entirety being perse arbitrary and hence not legally sustainable, no other substantive ground of challenge has been urged. It is, therefore, well settled that the State must act validly for a discernible reason not whimsically for any ulterior purpose. Such action then satisfies the test of reasonableness. It is legitimate to take into consideration public interest and national priorities. We are required to test the plea on the above well settled parameters. X Can the Issue as to whether there is a concluded contract be decided in writ proceedings? 328. In all these appeals, it is urged that this court must hold that a concluded contract has come into existence and this court must protect binding rights of the appellants thereunder. The respondents staunchly repudiate that there is any contract, let alone any enforceable rights of these appellants. 329. Before examining this plea pressed on behalf of the appellants, we need to consider as to whether such plea can be gone into in extraordinary writ jurisdiction. 330. The Supreme Court of India has repeatedly cautioned that the issue regarding the existence of a concluded contract between parties falls squarely in the realm of contract law without any hue or shade of any public law. If it is urged by one side that there is a concluded contract, a position which is disputed by the other side, it is not open to the Court to exercise extra-ordinary jurisdiction under 138 LPA No.53/2020 & connected appeals Page 138 Article 226 of the Constitution of India to go into this question. (Ref: (1996) 10 SCC 405, Rajasthan Coop. Dairy Federation Ltd. v. Maha Laxmi Mingrate Marketing Service Pvt. Ltd, Pr. 40). 331. Mr Vikram Sharma, learned counsel for the appellant in (LPA No.53/2020 Rakesh Kumar Chowdhary v. Union Territory of Jammu & Kashmir) has staunchly submitted that a binding contract came into existence after the respondents had approved the mining plan and accepted royalty from the appellant under Rule 104- A of the Rules of 2016. In support of his submission that the writ petition would be maintainable, Mr Vikram Sharma has relied on the pronouncements of the Supreme Court reported at 2006 (10) SCC 236 Noble Resources Limited v. State of Orissa & Anr and 2004 (3) SCC 533 ABL International Ltd. & anr vs. Export Credit Guarantee. 332. In Noble Resources Limited, the core question which was argued before the Supreme Court was as to whether a writ petition was maintainable in contractual matters. In this case, the respondent no.2 was held to be a State within the meaning of Article 12 of the Constitution of India. The Supreme Court observed that “its conduct in all fields including a contract is expected to be fair and reasonable. It was not supposed to act arbitrarily, capriciously or whimsically.” So far as the question under consideration is concerned, the Supreme Court held as follows: “15. It is trite that if an action on the part of the State is violative the equality clause contained in Article 14 of the Constitution of India, a writ petition would be maintainable even in the contractual field. A distinction indisputably must be made between a matter which is at the threshold of a contract and a breach of contract; whereas in the former the court's scrutiny would be more intrusive, in the latter the court may not ordinarily exercise its discretionary jurisdiction of 139 LPA No.53/2020 & connected appeals Page 139 judicial review, unless it is found to be violative of Article 14 of the Constitution. While exercising contractual powers also, the government bodies may be subjected to judicial review in order to prevent arbitrariness or favouritism on its part. Indisputably, inherent limitations exist, but it would not be correct to opine that under no circumstances a writ will lie only because it involves a contractual matter. 16. This dicta of law was laid down by this Court as far back in1977, wherein this Court in Radhakrishna Agarwal and Others vs. State of Bihar and Others [(1977) 3 SCC 457] accepted the division of types of cases made by the Patna High Court in which breaches of alleged obligation by the State or its agents could be set up. It read as under : \"(i) Where a petitioner makes a grievance of breach of promise on the part of the State in cases where on assurance or promise made by the State he has acted to his prejudice and predicament, but the agreement is short of a contract within the meaning of Article 299 of the Constitution; (ii) Where the contract entered into between the person aggrieved and the State is in exercise of a statutory power under certain Act or Rules framed thereunder and the petitioner alleges a breach on the part of the State; and (iii) Where the contract entered into between the State and the person aggrieved is non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract, and the petitioner complains about breach of such contract by the State.\" 17. It was further observed : \"In the cases before us, allegations on which a violation of Article 14 could be based are neither properly made nor established. Before any adjudication on the question whether Article 14 of the Constitution could possibly be said to have been violated, as between persons governed by similar contracts, they must be properly put in issue and established. Even if the appellants could be said to have raised any aspect of Article 14 of the Constitution and this Article could at all be 140 LPA No.53/2020 & connected appeals Page 140 held to operate within the contractual field whenever the State enters into such contracts, which we gravely doubt, such questions of fact do not appear to have been argued before the High Court. And, in any event, they are of such a nature that they cannot be satisfactorily decided without a detailed adduction of evidence, which is only possible in ordinary civil suits, to establish that the State, acting in its executive capacity through its officers, has discriminated between parties identically situated. On the allegations and affidavit evidence before us we cannot reach such a conclusion. Moreover, as we have already indicated earlier, the correct view is that it is the contract and not the executive power, regulated by the Constitution, which governs the relations of the parties on facts apparent in the cases before us.\" 18. It may, however, be true that where serious disputed questions of fact are raised requiring appreciation of evidence, and, thus, for determination thereof, examination of witnesses would be necessary; it may not be convenient to decide the dispute in a proceeding under Article 226 of the Constitution of India.” (Emphasis by us) 333. It has thus been held that only if the limited area of dispute can be resolved by examination of the terms of the contracts without consideration of any other oral or documentary evidence, that is, to say, if the claim does not require any external aid, the dispute may be settled by the writ court. 334. This was further expounded upon by the Supreme Court in the pronouncement reported at 2004 (3) SCC 533 ABL International Ltd. & anr vs. Export Credit Guarantee, wherein it was held that such a writ petition would be maintainable even if it involved some disputed questions of fact and that there was no decision laying down an absolute rule that in all cases including those involving disputed questions of fact, the parties should be relegated to the civil court. In this pronouncement, the Supreme Court considered several judicial pronouncements 141 LPA No.53/2020 & connected appeals Page 141 including the judgments reported at 1955(1) SCR 305 : K. N. Guruswamy vs. The State of Mysore and others; 1971 (3) SCC 864 : The D.F.O, South Kheri & Ors. V. Ram Sanehi Singh; 1986 (1) SCC 264 : Life Insurance Corporatiion of India Vs. Escorts Ltd. & Ors; 2002 (1) SCC 216 : State of Bihar & Ors. Vs. Jain Plastics and Chemicals Ltd.; 1969 (3) SCC 769 : Smt. Gunwant Kaur & Ors. Vs. Municipal Committee, Bhatinda and others; 1970 (1) SCC 582 : Century Spinning and Manufacturing Company Ltd. & anr. vs. The Ulhasnagar Municipal Council & anr; and 2001 (1) SCC 298 : VST Industries Ltd. vs. VST Industries Workers’ Union & Anr. We find that on consideration of the aforementioned precedents, if the question which the court has to pose when an authority has to perform a public function or a public duty is, has it failed to do so? If it has, a writ petition under Article 226 of the Constitution would be maintainable. 335. In 1991 (1) SCC 212 : Kumari Shri Lekha Vidyarthi & Ors. V. State of U.P. & Ors., the Supreme Court held as follows: \"The impact of every State action is also on public interest. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters.\" xxxx “Even assuming that it is necessary to import the concept of presence of some public element in a State action to attract Article 14 and permit judicial review, we have no hesitation in saying that the ultimate impact of all actions of the State or a public body being 142 LPA No.53/2020 & connected appeals Page 142 undoubtedly on public interest, the requisite public element for this purpose is present also in contractual matters. We, therefore, find it difficult and unrealistic to exclude the State actions in contractual matters, after the contract has been made, from the purview of judicial review to test its validity on the anvil of Article 14.” (Emphasis by us) 336. In (2008) 12 SCC 500, Kisan Sahkari Chini Mills Ltd. Vardan Linkers, the question that arose for consideration in the writ was whether the cancellation order dated 24.4.2004 passed by the Secretary (Sugar), of the allotment letter dated 26.3.2004, was arbitrary and irrational or whether it violated any administrative law principles. The Court observed that the question whether there was a concluded contract or not, was only incidental to the question as to whether cancellation order dated 24.4.2004 by the Secretary (Sugar), was justified. The Supreme Court considered the matter and finally in para 24 held that the case involved several disputed questions in regard to the existence of the contract itself, and that the High Court ought to have referred the first respondent to a civil court. It was opined that “the High Court in exercise of its writ jurisdiction, proceeded as if it was dealing with a pure and simple civil suit relating to breach of contract.” The Supreme Court has held as follows: “23. If the dispute was considered as purely one relating to existence of an agreement, that is whether there was a concluded contract and whether the cancellation and consequential non- supply amounted to breach of such contract, the first respondent ought to have approached the civil court for damages. On the other hand, when a writ petition was filed in regard to the said contractual dispute, the issue was whether the Secretary (Sugar), had acted arbitrarily or unreasonably in staying the operation of the allotment letter dated 26.3.2004 or subsequently cancelling the allotment letter. In a civil 143 LPA No.53/2020 & connected appeals Page 143 suit, the emphasis is on the contractual right. In a writ petition, the focus shifts to the exercise of power by the authority, that is, whether the order of cancellation dated 24.4.2004 passed by the Secretary (Sugar), was arbitrary or unreasonable. The issue whether there was a concluded contract and breach thereof becomes secondary. In exercising writ jurisdiction, if the High Court found that the exercise of power in passing an order of cancellation was not arbitrary and unreasonable, it should normally desist from giving any finding on disputed or complicated questions of fact as to whether there was a contract, and relegate the petitioner to the remedy of a civil suit.” (Emphasis by us) 337. In Kisan Sahkari Chini Mills case, the Supreme Court laid down the manner in which the High Court should proceed in writ proceedings even if it found that the cancellation was of a valid contract, observing as follows: “23.………Even in cases where the High Court finds that there is a valid contract, if the impugned administrative action by which the contract is cancelled, is not unreasonable or arbitrary, it should still refuse to interfere with the same, leaving the aggrieved party to work out his remedies in a civil court. In other words, when there is a contractual dispute with a public law element, and a party chooses the public law remedy by way of a writ petition instead of a private law remedy of a suit, he will not get a full fledged adjudication of his contractual rights, but only a judicial review of the administrative action. The requisition whether there was a contract and whether there was a breach may, however, be examined incidentally while considering the reasonableness of the administrative action. But where the question whether there was a contract, is seriously disputed, the High Court cannot assume that there was a valid contract and on that basis, examine the validity of the administrative action.” (Emphasis supplied) 144 LPA No.53/2020 & connected appeals Page 144 338. It is therefore clear that even if we agree with the appellants that there were concluded contracts in favour of the appellants which were cancelled by the respondents, only a very limited judicial review of the action of the respondents is available to us. Given the conclusions reached by us hereafter, it would be unnecessary to even undertake this exercise. 339. So far as issues with regard to contracts involving the State, its agencies or public authorities, the jurisdiction of the High Court in exercise of powers under Article 226 of the Constitution of India is very limited. Light is shed on the contours of the jurisdiction of this court in Rishi Kiran Logistics Private Limited, wherein while considering a plea of promissory estoppel based on the LoI, the Supreme Court considered authoritiative precedents observing on the limitations of exercise of writ jurisidcition as follows: “29. Again, we clarify at the outset that even the principle of PROMISSORY estoppel is in the field of administrative law and while entertaining the arguments and discussion on this issue, the question as to whether there was a concluded contract or not has to be kept aside. Precisely this was done in Kisan Sehkari Chini Mills Case (Supra). xxxxxxx 33. We have already indicated above that the of the doctrine of fairness as well as promissory estoppel are in the realm of administrative law, whereas the issue as to whether a concluded contract was entered into between the parties and if so, the question of enforcement of such a contract would be in the field of law of contract. Bearing in mind this distinction becomes more important as the High Court was dealing with the petition filed by the appellant under Article 226 of the Constitution. 34. Before proceeding further in the matter we would again like to discuss the judgment of this court in Kisan Sahkari Chini Mills Ltd. & 145 LPA No.53/2020 & connected appeals Page 145 Ors. (Supra) which has been earlier referred to. This case unambiguously explains the approach which the High Court will have in such a petition filed under Article 226 of the Constitution, dealing with the arguments predicated on contractual aspects.” (Emphasis supplied) 340. Referring to the prior judgment in Kisan Sahkari Chini Mills Ltd. & Ors., in Rishi Kiran Logistics Ltd., the Supreme Court observed as follows: “37. The question before the Supreme Court were: (I) Whether the High Court was right in concluding/ assuming that there was a valid contract? And (ii) Whether the High Court was justified in quashing the order of the Secretary (Sugar)? This court answered the aforesaid questions in the negative and set aside the judgment of the High Court holding that: “Ordinarily, the remedy available for a party complaining of breach of contract lies for seeking damages. He would be entitled to the relief of specific performance, if the contract was capable of being specifically enforced in law. The remedies for a breach of contract being purely in the realm of contract are dealt with by civil courts. The public law remedy, by way of a writ petition under Article 226 of the Constitution, is not available to seek damages for breach of contract or specific performance of contract. However, where the contractual dispute has a public law element, the power of judicial review under Article 226 may be invoked. It is clear that the aforesaid case is closest to the facts of the present case.” (Emphasis supplied) 341. In Rishi Kiran Logistics, the Supreme Court summed up the applicable principle thus: “38. It thus stands crystalised that by way of writ petition under Article 226 of the Constitution, only public law remedy can be 146 LPA No.53/2020 & connected appeals Page 146 invoked. As far as contractual dispute is concerned that is outside the power of judicial review under Article 226 with the sole exception in those cases where such a contractual dispute has a public law element.” 39. We have already held that the impugned decision of the Port Trust was not arbitrary, unreasonable or malafide and further that the doctrine of promissory estoppel has no application in the present fact situation.xxxxx” (Emphasis supplied) 342. So far as application of the above principles to the situation was concerned, in Rishi Kiran Logistics, the Supreme Court held as follows: “40. In so far as the issue regarding concluded contract in the present case is concerned, this falls squarely in the realm of the contract law, without any hue or shade of any public law. In fact, that is not even pleaded or argued. At the same time, whether there was a concluded contract or not is seriously disputed by the respondents and, therefore, in the first instance it was not even necessary for the High Court to go into this issue and could have relegated the appellant to ordinary civil remedy. We are conscious of the position that merely because one of the authorities raises a dispute in regard to the facts, it may not be always necessary to relegate the parties to a suit. This was so stated in ABL International Ltd. & Anr. v. Export Credit Guarantee Corporation of India Ltd. & Ors.; JT 2013 (10) SC 300 in the following manner: “37. In our opinion, this limited areas of dispute can be settled by looking into the terms of the contract of insurance as well as the export contract, and the same does not require consideration of any oral evidence or any other documentary evidence other than what is already on record. The claim of the contesting parties will stand or fall on the terms of the contracts, interpretation of which, as stated above, does not require any external aid.” 147 LPA No.53/2020 & connected appeals Page 147 41. At the same time, as already noted in Kisan Sahkari (Supra) this court had taken a view that where the question whether there was a contract or not is seriously disputed, the court is not to assume that there was a valid contract and on that basis examine the validity of the administrative action. Therefore, keeping in view the aforesaid understanding of the law, a very limited inquiry on this aspect is permissible.” (Emphasis supplied) 343. So far as the decision of the Kandla Port Trust in Rishi Kiran Logistics, to cancel the entire bidding is concerned, the Supreme Court rejected the challenge holding as follows: “xxxxxxx 45. We again emphasise that the issue of the argument of there being a concluded contract is raised in a petition filed under Article 226 of the Constitution and not by way of suit. The issue whether there was a concluded contract and breach thereof become secondary and is examined by us with that limited scope in mind. In such proceedings main aspect which has to be is as to whether impugned decision of the Port Trust was arbitrary or unreasonable. It is also important to remark that in a given case even if it is held that there was a concluded contract, whether specific performance can be ordered or not would be a moot question in writ proceedings. The appellant took the calculated risk in not going to the civil court and choosing to invoke extraordinary jurisdiction of the High Court, which is also discretionary in nature.” (Emphasis by us) The jurisdiction of the court in a writ raising issues arising out of a contract is thus limited to consideration of the public element only. 344. The above principles laid down by the Supreme Court in Rishi Kiran Logistics squarely apply to our consideration in these appeals. In the case in hand 148 LPA No.53/2020 & connected appeals Page 148 as well, the writ court, therefore, did not have the jurisdiction to go into the factual dispute over whether, in the facts of the case, there was a concluded contract or not. XI Whether in these cases there was a concluded contract of the respondents with appellants and whether time was of essence of the contract? 345. We have discussed above the limitations of the power of the writ court to examine this submission. Our consideration of this issue has to rest on admitted facts. 346. Without exception, in the present cases, all appellants rely on the only one communication addressed to them by the respondents. This communication captioned as a ‘Letter of Intent’ (‘LoI’) stands addressed to all the respondents in identical terms. Inasmuch as the appellants are sourcing their rights to this letter, it is necessary to consider the same in detail. 347. The LoI is not unique or peculiar to the transactions under consideration but is a document of widespread use in commercial transactions. In some commercial transactions, a ‘letter of support’ or ‘letter of comfort’ is also found to be in existence. 348. In the literal sense, the Black's Law Dictionary defines a 'letter of intent' as a letter customarily implied to reduce to writing 'a preliminary understanding of parties who intend to enter into a contract, or to intend to take some other action.' 349. The expression 'letter of intent' is defined by Chitty on Contract in its 26th Edition (para 116 on page 114) thus: 149 LPA No.53/2020 & connected appeals Page 149 \"LETTER of intent: There is as yet no clear authority on the legal effect of the practice whereby the parties to a transaction exchange \"letters of intent\" on which they act pending the preparation of formal contracts. The terms of such letters may, of course, negative contractual intention. But where this is not the case, it would be open to the courts to hold the parties bound by the terms of such letters, especially if the parties had acted on those terms for a long period of time or if they had expended considerable sums of money in reliance on them......\" (Emphasis by us) 350. It is emphasized by the learned author that there is no clear authority on the legal effect of the practice whereby the parties to a transaction exchanged a ‘letter of intent’ on which they act, pending the preparation of formal contracts. At page 181, it is stated that \"where the language of such a document does not negative contractual intention, it is open to the courts to hold the parties bound by the document; and they will, in particular, be inclined to do so where the parties have acted on the document for a long period of time or have expended considerable sums of money in reliance on it. The fact that the parties envisage that the letter is to be superseded by a later, more formal, contractual document does not, of itself prevent it from taking effect as a contract\". 351. In a judgment reported at (1971) 222 E.G. 169 Turriff Construction Ltd. vs. Regalia Knitting Mills, the letter of intent was held to be a collateral contract to pay for the preliminary work. 352. In yet another pronouncement reported at 1986 (1) Lloyd's Rep. 378 Wilson Smithett & Co. (Sugar Co.) v. Bangladesh Sugar Industries Limited, the court held that the LoI had contractual significance. 150 LPA No.53/2020 & connected appeals Page 150 353. In the \"Law of Contract\", Butterworths Common Law Series, at page 327 of the text, it is mentioned that: \"A letter of intent may expressly state that it is not to have contractual effect. In Drake and Scull Engineering Limited Vs. Higgs and Hill Northern Limited, another building contract case, the parties had reached agreement on all terms apart from day rates when a letter of intent was issued. However, the letter expressly stated that there should be no binding contract between the parties until contracts were formalised. The court held that in accordance with its terms the letter was therefore not contractual, with the result that on the facts the employer was not entitled to deduct liquidated damages which would have been payable under agreed contract terms. However, it is submitted that it will take clear words to prevent a letter of intent being regarded as an offer or acceptance of a contract if all important terms have been agreed and one party commences performance in reliance on the letter.\" (Emphasis supplied) 354. The principles in English law so far as a LoI are concerned were authoritatively summarised in the pronouncement reported in 33 PC 29 Hatzfeld Wildenburg v. Alexander thus: \"It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition of term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored.\" (Emphasis supplied) 151 LPA No.53/2020 & connected appeals Page 151 355. It is trite that it is the express intent of the parties which controls the rule of contract formation, rather than mere form. 356. In the judgment reported at 147 F Supp. 193, 204 (S.D.N.Y. 1956) Banking & Trading Corporation Vs. Reconstruction Finance Corporation, affirmed in 257 F. 2d 765 (2nd Cir. 1958), the court had stated that \"if the agreement is expressly subject to the execution of a formal contract, this intent must be respected and no contract found until then\". 357. In Texas Inc Vs. Pennzoil Co. 729 SW 2d 768, the court placed reliance on a pronouncement reported at 301 N.Y. 110, 92, N.E. 2D 914 (1950) F.W. Berk & Co. Vs. Derecktor. In this matter, the very acceptance of the plaintiff's order by the defendants was made subject to the occurrence of certain events. The court defined the phrase \"subject to\" as being the equivalent to \"conditional upon or depending on\" and held that making the acceptance of an offer subject to a condition was not the kind of assent required to make it a binding promise. However, making the acceptance of an offer conditional or expressly making an agreement itself conditional is a much clearer expression of an intent not to be bound than the use of the more ambiguous word \"transaction\". 358. Our attention stands drawn to the pronouncement of the Supreme Court reported at (2006) 1 SCC 751 Dresser Rand S.A. Vs. Bindal Agro Chem Limited wherein the court was of the view that the letter of intent made it clear that if the projects order was not placed and a letter of credit was not issued by a particular date, the other party was at liberty to alter the price and the delivery schedule. The court therefore held that it may not be possible to treat the LoI as the projects order. It was further held thus: \"Agreeing upon the terms subject to which offer is to be made and accepted, is itself a complicated and time-consuming process. But, 152 LPA No.53/2020 & connected appeals Page 152 reaching an agreement as to the terms subject to which a purchase will be made, is not entering into an agreement to purchase.\" 32. Parties agreeing upon the terms subject to which a contract will be governed, when made, is not the same as entering into the contract itself. Similarly, agreeing upon the terms which will govern a purchase when a purchase order is placed, is not the same as placing a purchase order. A prelude to a contract should not be confused with the contract itself. xxxx. 39. …a letter of intent merely indicates a party’s intention into a contract with the other party in future. A letter of intent is not intended to bind either party ultimately to enter into any contract. … 40. It is no doubt true that a letter of intent may be constructed as a letter of acceptance if such intention is evident from its terms. It is not uncommon in contracts involving detailed procedure, in order to save time, to issue a letter of intent communicating the acceptance of the offer and asking the contractor to start the work with a stipulation that the detailed contract would be drawn up later. If such a letter is issued to the contractor, though it may be termed as a letter of intent, it may amount to acceptance of the offer resulting in a concluded contract between the parties. But the question whether it is a final acceptance of the offer thereby leading to a contract, is a matter that has to be decided with reference to the terms of the letter. When the LoI is itself hedged with the condition that the final allotment would be made later after obtaining CRZ and other clearances, it may depict an intention to enter into contract at a later stage. Thus, we find that on the facts of this case it appears that a letter of intention to enter into a contract which could take place after all other formalities are completed. However, when the completion of these formalities had taken undue long time and the price of land, in the interregnum, shot up sharply, the respondent had a right to cancel the process which had not resulted in a concluded contract. \" (Emphasis supplied) 153 LPA No.53/2020 & connected appeals Page 153 359. The above view has been relied upon by the Supreme Court in its decision report at (2015) 13 SCC 233 : Rishi Kiran Logistics Pvt. Ltd. v. Kandla Port Trust and others. 360. Mr. P. N. Raina, ld Senior Counsel has placed the judgment reported at (2017) 2 SCC 125 (Para 24), Bhushan Power and Steel Limited v. S. L. Seal, Additional Secretary, Steel and Mines and others, before us. In this case, the application of the petitioner for grant of mining lease was rejected on account of a statutory amendment. The application was made prior to the statutory amendment. The petitioner had challenged the rejection inter alia on the ground that ‘since the letter of intent stood issued by the State Govt. for grant of mining lease, the petitioner’s application stood protected’. The Supreme Court had considered the effects of the issuance of the LoI in para 24 of the judgment observing as follows: “24. No doubt, having regard to the words “by whatever name called”, the expression “letter of intent” is to be given wider connotation. It means that nomenclature of the letter would not be the determinative factor. It is the substantive nature of the letter in question that would determine as to whether it can be treated as the letter of intent. For this purpose, it is first necessary to find the meaning that has to be attributed to the term “letter of intent”. As per the legal dictionary, “letter of intent” is a document that described the preliminary understanding between the parties who intend to make a contract or join together in another action. This term has come up for interpretation on few occasions before this Court.” (Emphasis by us) 361. Mr F. A. Natnoo, has submitted that the appellants are mis-reading the judicial pronouncement when they have no application in the present case. Mr Natoo, submits that the manner in which a judicial precedent has to be read and applied has been laid down by the Supreme Court in the judgment reported at 2004 154 LPA No.53/2020 & connected appeals Page 154 (8) SCC 579 : Bharat Petroleum Corporation Limited & Anr., v. N. R. Vairamani & Anr., as follows: “9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (AC at p.761), Lord Mac Dermot observed: (All ER p.14C- D) \"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge......\" 10. In Home Office v. Dorset Yacht Co. (All ER p.297g-h) Lord Reid said, \"Lord Atkin's speech.....is not to be treated as if it was a statute definition it will require qualification in new circumstances.\" Megarry, J in (1971) 1 WLR 1062 observed: \"One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament.\" And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said: (All ER p.761c) \"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be 155 LPA No.53/2020 & connected appeals Page 155 remembered that judicial utterances made in the setting of the facts of a particular case.\" 11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 12. The following words of Lord Denning in the matter of applying precedents have become locus classicus: \"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. * * * Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.\"” 362. We have extracted the LoI issued by the respondents to the appellants in the cases in hand heretofore. This LoI clearly informed the appellant that their bids had been “provisionally” accepted. It reminded the bidders of the mandate of Rule 26 of the Rules of 2016. This LoI directed the appellants to submit the approved Mining Plan and EC (as required under Rule 26(2)) as also to deposit the remaining 50% of the bid amount within the period of six months (as stipulated in Rule 55(9)). The LoI clearly informed that these compliances were necessary to 156 LPA No.53/2020 & connected appeals Page 156 enable the respondents to “grant mining lease” to the bidder for extraction of the minor minerals. 363. An examination of Rule 40 shows that after the completion of the above formalities, a formal order of “grant” of the lease has to be issued. Once this is ordered, the bidder is required under Rule 40(1) to pay demarcation fee, deposit the security along with one quarterly installment of the annual deed rent and submit requisite stamps for execution of formal lease deed within 30 days from the date of issue of the grant. Rule 40(2) mandates that the lease deed “shall” be executed within three months from the date of issue of the grant. “Such lease deed is required to be got registered by lessee within a period of one month from the date of execution of the lease deed.” 364. Under Rule 40(1), the lease is a formal document executed in the formal prescribed in Form ML 10. It enables the lessee to extract minor minerals from a specified area of land. 365. In this background, the issuance of the LoI [under Rule 26(2)] is merely notification to the bidder that his bid was the highest and stands provisionally accepted. The LoI in absolutely clear terms thus reminds the bidder of the formalities that he is required under the statutory rules [Rule 26(2), 55(9)] to complete as well as the time frame within which they must be completed to enable the authorities to grant the mining lease. The Rules clearly postulate that after compliance by the bidder, a formal order of grant of the lease [Rule 40(1)] has to be issued; completion of the prescribed formalities [Rule 40(1)], execution of the mininig lease [Rule 40(2)] in the prescribed format Form ML10 by the Director and thereafter its registration as per the notified schedule. 157 LPA No.53/2020 & connected appeals Page 157 It needs no elaboration that it is this registered document which is the contract between the parties. A highest bidder is only thereafter statutorily permitted (Section 4 of the Act) to undertake mining activity. 366. In the judgment reported at (2009) 1 SCC 475, Speech & Software Technologies (India) (P) Ltd. V. Neos International Ltd. it has been held that it is a well settled legal position that the agreement to enter into contract is not enforceable nor does it confer any rights on the parties. 367. By the issuance of the LoI the respondents have thus neither conveyed final acceptance of the bid nor the terms on which a mining lease would be granted to the bidder. 368. We may consider individual arguments addressed before us. Mr Vikram Sharma in LPA No. 53/2020 has vehemently advanced the submission that once a LoI stood issued to the appellant, the mining plans submitted by the appellant approved, the right of grant of lease immediately accrued under Rule 6 to the appellant. It is contended that on working of Rule 104-A and the appellants extracting minor minerals against payment of royalty (as defined under Section 9 of the Minor Mineral Development Act) the appellants had moved ahead from the stage of issuance of LoI. Mr Sharma would content that upon receipt of the royalty, a binding contract had come into existence. 369. The Rules of 2016 are in the public domain. The public notice of the auctions, conducted thereunder (extracted by us) unequivocally notified the participants of the terms and conditions on which the auction would be conducted. The rules are also clearly referred to in the LoI issued to each of the appellants as well. That final acceptance of the bids had to be considered only after completion of the three prerequisites, stood in clear terms informed to the appellants. 158 LPA No.53/2020 & connected appeals Page 158 370. It is an admitted position that none of the appellants fulfilled these conditions in the present cases. In this background, is it possible to hold, as contended by Mr Vikram Sharma that there was a concluded contract in favour of the appellants and that the bidder had any vested interest in getting the mining lease? 371. In (1972) 2 SCC 36 State of Orissa v. Harinaryan Jaiswal, the Supreme Court has ruled on the question as to whether the bidder acquires any vested right merely by giving bids. In this regard in Para 13, it was further stated thus: “13………By merely giving bids, the bidders had not acquired any vested rights. The fact that the Government was the seller does not change legal position once its exclusive right to deal with those privileges is conceded. If the Government is the exclusive owner of those privileges, reliance on Art. 19(1)(g) or Art. 14 becomes irrelevant. Citizens cannot have any fundamental right to trade or carry on business in the properties or rights belonging to the Government, nor can there be any infringement of Art. 14, if the Government tries to get the best available price for its valuable rights. The High Court was wholly wrong in thinking that purpose of ss. 22 and 29 of the Act was not to raise revenue. Raising revenue as held by this Court in Cooverjee Bharucha's case (supra) was one of the important purposes of such provisions. The fact that the price fetched by the sale of country liquor is an excise revenue does not change the nature of the right. The sale in question is but a mode of raising revenue. Assuming that the question of arbitrary or unguided power can arise in a case of this nature, it should not be forgotten that the power to accept or reject the highest bid is given to the highest authority in the State i.e. the Government which is expected to safeguard the finances of the State. Such a power cannot be considered as an arbitrary power. If that power is exercised for any collateral purposes, the exercise of the power will be struck down. It 159 LPA No.53/2020 & connected appeals Page 159 may also be remembered that herein we are not dealing with a delegated power but with a power conferred by the legislature…..” (Emphasis supplied) 372. With regard to the impact of the submission of a bid, we may advert to the findings of the Supreme Court in the case reported at (1975) 1 SCC 737, Har Shankar v. Dy. Excise & Taxation Commissioner, wherein it is held under: “16. Those interested in running the country liquor vends offered their bids voluntarily in the auctions held for granting licences for the sale of country liquor. The terms and conditions of the auctions were announced before the auctions were held and the bidders participated in the auctions without a demur and with full knowledge of the commitments which the bids involved. The announcement of conditions governing the auction were in the nature of an invitation to an offer to those who were interested in the sale of country liquor. The bids given in the auctions were offers made by prospective vendors to the Government. ............Those who contract with open eyes must accept the burdens of the contract along with its benefits. Xxxxxxxxxx” (Emphasis by us) 373. A challenge to a cancellation of the entire tender, similar to the decision under challenge before us, was before the Supreme Court in the judgment reported at (2015) 13 SCC 233, Rishi Kiran Logistics Private Limited v. Board of Trustees of Kandla Port Trust and others. The respondent No.1 had invited tenders on 12.03.2005 for allotment of plots on leasehold basis on a basic premium of Rs.612 per square meter for construction of liquid storage tanks. Bids were to be accompanied by earnest money of Rs. 3 lakhs. Price bids were opened on 30.08.2005 which were scrutinized by the tender committee. The appellant was found technically qualified. Recommendations were placed before the Board of 160 LPA No.53/2020 & connected appeals Page 160 Trustees in the meeting held on 08.12.2005. After completion of procedural aspects, a LoI dated 07.01.2006 was communicated to the appellant wherein it was clearly mentioned that the ‘formal letter of allotment would be issued after getting CRZ clearance’. The appellant had bid for three plots at premiums of Rs.3200, 3150 and 3120 respectively. This CRZ clearance was received after a long gap of five years on 16th August 2010. This prolonged time lag resulted in the Board of Trustees taking the decision by way of resolution no.108 on 09.12.2010 deciding to cancel the entire tender process which had commenced in the year 2005. The decision of the Board of Trustees was conveyed to the appellant as well as to other tenderers. The cancellation of bids was challenged by way of writ petition being SCA No.1877/2011. 374. Nikhil Adhesives Limited, had filed a writ petition being SCA No.286/2011 in the Gujarat High Court which was dismissed by a reasoned judgment dated 4th February, 2011 [2011 SCC online Gujarat 897 : (2011) 2 GLH 283]. Another SCA No.1328/2011 filed by IMC Limited was dismissed by the Gujarat High Court by another reasoned order on 7th February, 2011. 375. In Nikhil Adhesives Limited,tThe Gujarat High Court was of the view that the petitioner could not succeed merely on the basis of the LoI dated 12th January 2006 which had been issued by the Kandla Port Trust. It was also observed that no effective steps had been taken by the petitioner even to facilitate obtaining the CRZ clearance despite several communications from the respondents. The court held that it could not be held that there was any concluded contract between the petitioner and the respondent-Port Trust. The LoI was merely an expression of intention issued by the respondent which imparted information to the petitioner that it stood as the highest bidder and on receipt of the CRZ clearance, a formal 161 LPA No.53/2020 & connected appeals Page 161 LoI would be issued. Even before such an event could occur, the earlier tender process stood cancelled. It was specifically held that while cancelling the earlier tender process, the Kandla Trust Port neither acted arbitrarily nor its action would amount to any malafide exercise of discretionary powers. The decision had been taken to fetch a realistic market price in accordance with the present market value of land. 376. Another fact which had weighed in favour of the respondents was the fact that, other than making payment of Rs.3 lakhs by way of earnest money, the bidders had not incurred any other expenditure or suffered any liability to implement the project of construction and maintenance of the tanks; that even if the LoI could be considered as tantamounting to a promise given by the Port Trust, the petitioner had not altered its position to such an extent which could lead the court to take a decision that holding the promissor to its representation was necessary to do justice between the parties. Thus equity demanded that the Port Trust was allowed to rescind, looking to the facts and circumstances of the case. 377. The writ petition filed by the Rishi Kiran Logistics Pvt. Ltd. (SCA 1877/2011) was also dismissed for the reasons detailed in the above judgment dated 4th February, 2011. 378. The main ground of challenge to the cancellation before the Gujarat High Court in Nikhil Adhesives Limited (and the other matters including Rishi Kiran Logistics) was that the respondents were instrumentalities of the State and being ‘other authority’ under Article 12 of the Constitution, just as in the present case, it was urged that they were bound to act fairly, and that, their action was not based on any rationale or relevant principle. 162 LPA No.53/2020 & connected appeals Page 162 379. The entire thrust of the submission of all the writ petitioners was that there was a concluded contract between the parties and that cancellation of such contract perse amounted to arbitrariness in action. The cancellation was challenged also on grounds of promissory estoppel. 380. The Gujarat High Court negated all the aforesaid propositions. Answering the first argument that there was a concluded contract between the parties, the High Court held that the LoI issued by the Port Trust was just information that the addressee (the petitioner therein) had been declared highest bidder for the plot for which it had submitted its tender. This letter further informed that the formal allotment letter shall be issued after the receipt of CRZ clearance in general by the Port Trust for tank forms and also informed that additional CRZ clearance if required for installation, safety, pollution control etc, had to be obtained by the said petitioner, from time to time at its cost. This letter also mentioned that the payment would be made by the said petitioner after obtaining the CRZ clearance for the individual premises allotted to it or within 3 months of issuance of allotment letter, whichever was earlier. In the opinion of the High Court the LoI did not result in any concluded contract. 381. Rishi Kiran Logistics Pvt. Ltd., challenged the decision of the Gujarat High Court before the Supreme Court of India, which was rejected by the judgment dated 21st April, 2014. 382. The Supreme Court had noted that though in the NIT dated 12th March,2005, the premium was fixed at Rs.612/ sq.meter, prices of property in the five years taken to obtain the CRZ clearance had taken a quantum jump. In 2010, when the clearance was obtained, it was more than Rs. 8000/ sq. meter. 163 LPA No.53/2020 & connected appeals Page 163 383. The Supreme Court also considered and rejected the plea of estoppel in Rishi Kiran Logistics Pvt. Ltd. In para 30, the Supreme Court noted that in this case, the total premium amount in respect of the three plots (which ran into several crores of rupees in each case) was not to be paid on issuance of the LoI. This was for the reason that the formal LoI or lease documents were to be executed only after the CRZ clearance. For this reason, the appellant was required to pay the premium amount only after receipt of the CRZ clearance in general and after issuance of allotment letter as well as individual CRZ clearance and on execution of these documents. Before any of these events could happen, the Port Trust decided to cancel the entire process. It was held that except making payment of Rs.3 lakhs by way of earnest money, the appellant did not incur any other expenses and had also not suffered any liability or taken any steps. It was held by the High Court that even if it could be assumed that the issuance of LOI tantamounted to a promise given by the Port Trust, the appellants did not alter their position to their prejudice pursuant thereto to such an extent that it could inspire the court to take the decision that holding the promissor to its representation is necessary to do justice between the parties. This view of the High Court was upheld by the Supreme Court. 384. We find from the factual narration above that, as in the present case, in Rishi Kiran Logistics Pvt. Ltd, there was an admitted position that, a LoI stood issued in favour of the bidders which clearly informed the bidder that the formal allotment shall be issued after the receipt of the CRZ clearance in general. The Supreme Court sustained the finding of the High Court that the LoI did not amount to a promise but was only in the nature of information that the addressee had been declared the highest bidder for the plot for which it had submitted its tenders. 164 LPA No.53/2020 & connected appeals Page 164 385. In (2015) 13 SCC 233 Rishi, Kiran Logistics Private Limited v. Board of Trustees of Kandla Port Trust and others, it was held as follows: “42. Having considered the matter from this limited angle in exercise of powers of judicial review, we are of the view that on the facts of this case, no interference is required. The case of the appellant is that with the issuance of LoI a concluded contract was entered into. He had submitted that only CRZ clearance was required and even if LoI, which amounted to acceptance of the offer given by the appellant in his bid was contingent based on CRZ clearance, even that clearance was granted by the competent authority ultimately. However, what is lost sight of, in the entire process is that the said clearance was delayed by a period of 5 years. Because of that neither any final LoI could be issued, nor possession of the plots given of the payments received. It is also to be borne in mind that apart from general CRZ clearance, specific clearance on individual basis in this behalf were also to be obtained.” (Emphasis by us) 386. The fact situation in Rishi Kiran Logistics Private Ltd. is on all fours with the cases in hand. In the present cases, the appellants were unable to secure ECs within the stipulated time. Their bids had also been only provisionally accepted. This was clearly stated in the LoI. Final acceptance had not yet been accorded. The submission of the appellants that on issuance of the LoI, a concluded contract came into existence is completely misconceived and has to be rejected. 387. The judgments relied upon by the appellants are distinguishable and do not lay down any absolute proposition of law. In (1984) 3 SCC 634 (Paras 10 & 11), State of Haryana v. Lal Chand, the court was considering an absolute acceptance of a bid. The case relates to auction sale of liquor vends. 165 LPA No.53/2020 & connected appeals Page 165 388. Lal Chand was concerned with an auction for grant of licences for sale of liquor in the State of Haryana. So far as these auctions are concerned, on acceptance of the bid, as per the rules and notified conditions, a binding contract came into existence and the bidders became entitled to the licences. These rules do not postulate provisional acceptance. The rules in Haryana do not prescribe any pre-conditions to be complied with. Lal Chand is inapplicable to the cases in hand. 389. So far as the judgment reported at (2011) 12 SCC 18, Saradamani Kandappan v. S. Rajalakshmi and others is concerned, it relates to sales of immovable property. This judgment has no relevance at all to the present case. The court has drawn a distinction between a contract executed in exercise of executive power and contracts which are statutory in nature. 390. As pointed out above, in the present case, the applicable rules postulate only provisional acceptance and issuance of LoI setting out the conditions laid down under the rules which have to be complied with. It is only thereafter that the validity of the bid has to be considered and may give rise to a final acceptance which culminates in execution of a formal mining lease. It cannot be said in the instant case, on fall of the hammer or issuance of the LoI, a binding contract between the parties had come into existence. 391. In our view, the reliance on Section 9 of the Act of 1957 is also completely misconceived. On examination of the scheme of the Statute, we find that Section 9 explicitly states that royalty is payable only by the holder of a mining lease. Persons who had merely participated in the auction and were yet to comply with the requirements of Rule 26(9) and Rule 55(9), had not become entitled to mining leases. As such, they could not have been permitted to extract the minerals or pay royalty. 166 LPA No.53/2020 & connected appeals Page 166 392. We have no manner of doubt that in the present case, there was no concluded binding contract in favour of any of the appellants. 393. In these circumatances, the reliance placed by Mr Vikram Sharma on the pronouncement in AIR 1991 SC 537 : Kumari Shri Lekha Vidyarthi & Ors. V. State of U.P. & Ors, is misconceived. In this case, by a general order, issued by the Government of State of Uttar Pradesh, the appointments of all the Government counsels (civil, criminal, revenue) in all districts of State of UP were terminated and preparation of fresh panels to make appointments in place of the existing incumbents was directed. 394. Mr F. A. Natnoo, ld. AAG, has pointed out that the facts in question which were before the Court in Kumari Shri Lekha Vidyarthi are different from the present consideration. In the instant case, there is no contract between the parties. For the same reason the reliance placed by Mr Vikram Sharma, on AIR 1971 SC 1021: Century Spinning & Manufacturing Company Ltd., & anr. v. The Ulhasnagar Municipal Council and anr, is misplaced as, in the present case, there is no concluded contract between the parties. 395. We find that Rule 104-A is a “transitory measure” and applicability thereof so far as the appellants, who were bidders in auctions, could hold only “for completion of auction process, preparation of mining plan and obtaining environmental clearance from the competent authority by the successful bidder.” 396. The claims of the appellants of vested rights having accrued in their favour on account of extraction and payment of royalty under Rule 104-A are therefore completely misplaced and hereby rejected. 397. So far as the submissions premised on time being not of essence of the contract are concerned, it is well settled that it is not open to a court in exercise of 167 LPA No.53/2020 & connected appeals Page 167 extra-ordinary powers under Article 226 of the Constitution of India to go into pure and undiluted questions of civil liability under a contract unless any objection based on binding principles of administrative law and public interest arises for consideration. 398. In any event, the time for compliance of the conditions was appointed under the statutory Rules. There is no question of any change in this requirement. The principle of time not being of essence is neither attracted nor applicable to the present cases. 399. The learned Single Judge has considered as issue no.i the question as to whether on issuance of LoI and acceptance of the 50% of the bid amount and approval of the mining plans, a right has been created in favour of the petitioners to claim grant of mining leases. In view of the above factual narration, the learned Single Judge has, therefore, rightly held that the right to claim grant of lease and execution of formal leases would accrue to the petitioners only if the aforesaid requisite formalities were completed within the statutory prescribed period in accordance with Section 4 of the Act of 1957 read with Rule 26(2) of the Rules of 2016. We uphold the conclusion of the learned Single Judge that no right whatsoever had accrued to the appellant at any point of time to grant of mining leases. XII Whether the respondents had the power to waive or to extend time for compliance with the conditions prescribed in the Rules as notified in the LoI. 400. Varying, in fact contradictory, submissions have been made by the learned Senior Counsels and Counsels in these appeals. Mr. P. N. Raina, Senior Counsel has urged that though there was a concluded contract, however, time was not of 168 LPA No.53/2020 & connected appeals Page 168 essence of the contract and that, in any case time for compliance stood extended by the respondents themselves. 401. On the other hand, it has been urged by Mr. Z. A. Shah, learned Senior Counsel that the stipulation of complying with the notified conditions within six months from the date of LoI was not an essential or a mandatory condition for grant of the mining lease. 402. The submission of Mr. Vikram Sharma, ld. Counsel is that, in the given facts and circumstances, the appellants were entitled to extension of time which could have been granted under Rule 40 of the Rules of 2016. 403. The question which therefore arises for consideration is as to whether the stipulations made in the Rules and by the authorities in the notice inviting tenders or the LoIs issued on a provisional acceptance of a bid, especially the time stipulation within which the prerequisites have to be fulfilled, are not a binding requirement. If this is answered in the negative, the question which has to be answered is as to whether the respondents had any jurisdiction or power to extend the period of six months which was stipulated as a precondition. 404. As a corollary, the further question which has to be answered is as to what is the impact of the failure of the appellants to comply with the said requirements? 405. Lastly, we have to consider what is the impact of Rule 40 on these cases. 406. These issues are not res integra, have arisen before the Supreme Court repeatedly and stand conclusively answered. 407. We may first and foremost refer to the pronouncement of the Supreme Court reported at (2000) 5 SCC 287, Monarch Infrastructure Private Limited v. Commissioner, Ulhasnagar Municipal Corporation and others which sheds valuable light on the matter. In this case, one of the conditions of eligibility in the 169 LPA No.53/2020 & connected appeals Page 169 notice inviting tenders was deleted after the expiry of the time limit for submission of tenders but before opening thereof. The contract was awarded to a tenderer who, at the time of submission of the tenders, did not meet the condition which was amended. The award of this contract was set aside by the High Court holding that on account of the restricted application of the modified tender conditions to only the existing bidders, the Municipal Corporation stands deprived of the opportunity which it could have had of obtaining higher and better bids from those who did not participate earlier. The court had reiterated the well settled principles of the scope of judicial review in award of contracts. In para 10 of the judgment, it was held that ‘ultimately what prevails with the courts in these matters is that while public interest is paramount there should be no arbitrariness in the matter of award of contract and all participants in the tender process should be treated alike’. In para 11 of the judgment, it was further stated that ‘ the courts would not interfere with the matter of administrative action or changes made therein, unless the Government’s action is arbitrary or discriminatory or the policy adopted has no nexus with the object which it seeks to achieve or is malafide’. 408. So far as our consideration is concerned, the fact situation brought out in para 13 of this judgment is material. One of the conditions in the ‘notice inviting tenders’ in Monarch Infrastructure was that the tender should be accompanied by demand draft/pay order or cash and in no other form. One Ramchand Mahadeo Rao had also submitted his bid which was rejected. Mr. Rao claimed that he had got prepared a cheque for Rs. 1.70 crores which he misplaced and he was under wrong impression that a photocopy of the draft duly notarized would be sufficient and therefore he had submitted a photocopy of the demand draft along with relevant documents. 170 LPA No.53/2020 & connected appeals Page 170 409. The Supreme Court held that it would be naive to accept such a mere statement that the demand draft for the sum of Rs.1.70 crores obtained for the purpose of submission alongwith the tender document could be misplaced in the manner suggested in the application. It was also held that the Municipal Corporation was justified in rejecting such tender offer as not fulfilling the conditions of the tender notice. 410. Where would then be an occasion in the present cases, for the respondents to condone failure by the bidders/ appellants to comply with the conditions as the requirements for ECs and deposit of the balance bid amount as stand mandated by statutory rules, informed in the auction notices and also individually notified in the LoIs admittedly received by each of them? 411. We may examine this issue from another perspective. Even if it could be accepted that there were concluded contracts in favour of these appellants, would the appellants be permitted to contend that the three conditions notified in the LoI were not binding? The answer is to be found in a subsequent pronouncement of the Supreme Court reported at (2007) 10 SCC 33, Puravankara Projects Ltd. V. Hotel Venus International and others. Herein allotment of certain plots had been made by public auction in Kerala with the understanding that the land ceiling exemption would be obtained in due course by the Development Authority without it having been made a condition precedent. Clause 10 of the tender terms and conditions required submission of a bank guarantee. The respondent-Venus was the successful bidder in respect of some of the auctioned plots including Plot Nos. D- 3, D-4 and D-5. The appellant was the second highest bidder in respect of the Plot Nos. D-3, D-4 and D-5. 171 LPA No.53/2020 & connected appeals Page 171 412. Venus-the respondent did not furnish the bank guarantee. The appellant knowing that Venus had not furnished the bank guarantee, matched his highest offer with regard to the plots concerned and agreed to pay the entire amount in lump sum. As the authorities did not respond to the offer, the appellant moved to High Court of Kerala with a writ petition praying that the tender of Venus in relation to the said plots be treated as cancelled as the bank guarantee was not furnished. 413. The Development Authority also issued a letter of confirmation dated 21st May 2005. This was challenged by a writ petition filed by Venus. 414. In the meantime, the notification of exemption on the land under Section 81(3)(b) of the Kerala Land Reforms Act, 1963 was issued by the authorities. Both the Single Judge and the Division Bench in appeal held that exemption of the land under Section 81(3)(b) of the Kerala Land Reforms Act, 1963 was a condition precedent to issuance of the tender and as such accepted Venus’ contention that it could be called upon to submit the bank guarantee only after the exemption was granted by the Government. The Supreme Court accepted the challenge by the appellants to these judgments of the Kerala High Court. 415. On the issue of parties being bound by terms of the offer, the Supreme Court in Puravankara Projects’ had held thus: “30. By observing that there was implied term which is not there in the tender, and postponing the time by which the bank guarantee has to be furnished, in essence the High Court directed modification of a vital term of the contract. 31. In New Bihar Biri Leave Co. V. State of Bihar, (1981) 1 SCC 537, it was observed at para 48 as follows: (SCC p. 558) 172 LPA No.53/2020 & connected appeals Page 172 “48. It is fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim of qui approbat non reprobate (one who approbates cannot reprobate). This principle, though originally borrowed from Scots law, is now firmly embodied in English common law. According to it, a party to an instrument or transaction cannot take advantage of one part of a document or transaction and reject the rest. That is to say, no party can accept and reject the same instrument or transaction (per Scrutton, L.J., Verschures Creameries Ltd. V. Hull & Netherlands Steamship Co., (1921) 2 KB 608 (CA); see Douglas Menzies v. Umphelby, 1908 AC 224; see also Stroud’s Judicial Dictionary, Vol. I, P.169, 3rd (Edn.).” 32. In Assistant Excise Commissioner v. Isaac Peter, (1994) 4 SCC 104, this Court highlighted that the concept of administrative law and fairness should not be mixed up with fair or unfair terms of the contract. It was stated in no uncertain terms that duty to act fairly which is sought to be imported into a contract to modify and/or alter its terms and/or to create an obligation upon the State Government which is not there in the contract is not covered by any doctrine of fairness or reasonableness. The duty to act fairly and reasonably is a doctrine developed in administrative law field to ensure the rule of law and to prevent failure of justice when the action is administrative in nature.” (Emphasis supplied) 416. Indubitably the appellants before us cannot be heard to say that upon issuance of the LoI, they became entitled to mine for minor minerals without obtaining the ECs or depositing fifty percent of the bid amount. 173 LPA No.53/2020 & connected appeals Page 173 417. In their submissions, both Mr. Z. A. Shah and Mr. P. N. Raina, ld Senior Counsels submit that it is necessary to draw a distinction with regard to the nature of the order and the power which was exercised. Distinction has been drawn between exercise of administrative or quasi judicial power. 418. Given the non-compliances of the mandatory prescriptions by the appellants, it is completely unnecessary for this court to undertake the exercise on this issue which would be only an academic exercise in the factual situation which obtains. As discussed above, the appellants in LPA 56/2020 respresented by Mr P.N.Raina, Sr. Counsel, did not care to comply with any of the conditions while the appellants in LPA No.64/2020 on whose behalf Mr Shah has made submissions, were grossly belated in completing the requirements. 419. Before us, these appellants were informed of both the formalities and the time limit of six months for completion thereof for entitlement of grant of mining leases. The appellants contend that these were not sacrosanct or binding requirements. The question which therefore arises for consideration is whether the said conditions or the time limit could be deviated from? 420. A fact situation similar to the present case was before the Supreme Court in the case reported at (1996) 10 SCC 405, Rajasthan Co-operative Dairy Federation Ltd. v. Shri Maha Laxmi Mingrate Marketing Service Pvt. Ltd. and others. In this case, the appellant had invited applications on or about 19th November 1988 for appointment of selling agents for its products in different areas. On 1st June 1990, a LoI was issued by the appellant in favour of the respondent No. 1 for its appointment as a selling agent. This LoI required the respondent to sign an agreement on 12th June 1990 on a non-judicial stamp paper and the arrangement was to be enforceable from the date when a legally executed 174 LPA No.53/2020 & connected appeals Page 174 contract came into being. Additionally, the respondent was required to submit an irrevocable bank guarantee for a sum of Rs.15 lakhs in favour of the appellant; submit profit and loss account and balance sheet for the past years before the execution of the agreement and a letter duly signed by the respondents was required to reach the appellant by 5th June 1990. 421. The respondent No.1 in the above case acknowledged receipt of the LoI. However, it failed to fulfill its obligation to furnish the bank guarantee or execute the contract within the stipulated period. It also failed to submit the documents in the nature of profit and loss account to the appellant. Consequently, as the respondent No. 1 failed to fulfill its obligations within the stipulated period, the LoI was revoked by the appellant. This revocation was challenged before the High Court of Rajasthan by way of writ petition inter alia on the ground that the cancellation was arbitrary as well as malafide and that the appellant had violated the principles of audi alteram partem. 422. This submission was accepted by the learned Single Judge holding that the appeal against the Single Bench decision before the Division Bench also failed. The challenge to these two judgments by the appellant was accepted by the Supreme Court holding that the cancellation could not have been effected without compliance of principles of natural justice. It was held that the LoI merely expressed an intention to enter into a contract. The Supreme Court further held as follows: “5. In its letter of 16th of July, 1990 cancelling the Letter of Intent issued in favour of respondent No.1, the appellant had given several reasons for cancelling the Letter of Intent. Respondent No.1 had not submitted to the appellant its profit and loss account and balance- sheet for the previous year as requested by the appellant. Respondent 175 LPA No.53/2020 & connected appeals Page 175 No.1 had wrongly held itself out as the sole selling agent of the appellant. These are clearly circumstances which are relevant to the cancellation of the Letter of Intent. Also the Letter of Intent clearly set out the conditions which respondent No.1 had to fulfil. One such condition was submitting an irrevocable bank guarantee for Rs. 15 lacs. This was also not done. Respondent No.1 contends that it had informed the appellant that it would submit the bank guarantee within three days of the signing of the contract. The appellant, however, is within its rights in insisting that the bank guarantee should be submitted before the contract is signed. The appellant, as a prudent businessman is entitled to satisfy itself about the financial position of the party whom the appellant is appointing as its selling agent. If respondent No.1 has not submitted the requisite documents in this connection and has held itself out as the sole selling agent when to its knowledge, there was no intention of appointing respondent no.1 as the sole selling agent, these are valid circumstances which the appellant can take into account in deciding whether to enter into a contract and bind itself legally with respondent No.1 or not. In these circumstances, if the contract has been cancelled it cannot be considered as arbitrary action on the part of the appellant violative of any Fundamental Rights of respondent No.1.” (Emphasis by us) 423. In the present case as well, it is an admitted position that none of the appellants were able to fulfill the preconditions notified to them under the LoI within the period of six months as was stipulated. None of the appellants have addressed a single representation to the respondent to the effect that they have fulfilled their obligations as required under the LoI or that the matter should proceed to consideration and grant of mining lease in their favour. 424. On the contrary, before us, (just as in Shri Maha Laxmi Mingrate Marketing Services Pvt. Ltd.), it is submitted by Mr. Vikram Sharma that the obligation to pay 176 LPA No.53/2020 & connected appeals Page 176 the balance 50% of the bid amount arose only after the grant of EC by the authorities. 425. Mr. P. N. Raina, Sr. Advocate has urged that on issuance of LoI, a binding and concluded contract had come into existence between the parties. Therefore, non-payment of the balance bid amount was inconsequential. 426. The positions taken by the appellants are completely contrary to the requirements stipulated under the applicable Rules. 427. Drawing our attention to Rule 40, Mr. Vikram Sharma ld counsel had submitted that the right to ‘grant’ and ‘execution’ of lease are two entirely different matters. Mr. Vikram Sharma would rely on Rule 40 to submit that in the background, the appellant was entitled to extension of time for execution of the lease in accordance with Rule 40(4) of the Rules of 2016. 428. No other plea in support of entitlement of the appellants to extension of time for complying with the terms of the LoI was made before us. 429. Before us, it is an admitted position that the auction of the mineral blocks was conducted pursuant to and in terms of the Rules of 2016. Rule 6 mandates the requirement of the approved mining plan and Rule 13 imposes the need for EC for the mineral blocks. By virtue of Rule 26(2) these have been stipulated as pre- conditions for grant of mining leases. Towards provisional acceptance of the bid, the authorities would issue a LoI to the bidder calling upon it to complete the formalities “within a period of six months including deposition of the remaining bid amount.” 430. So far as the stipulation in the LoI is concerned, Rule 55(9) of the Rules thus makes a mandatory direction to issue a LoI to the bidder to complete the formalities as required within the stipulated period. This sub rule also contains a 177 LPA No.53/2020 & connected appeals Page 177 prohibition that the concerned bidder ‘shall not extract or allow any extraction till such mining lease’ is granted. 431. The submission premised on Rule 40(4) has to be noted only for the sake of rejection. Rule 40 opens with the expression ‘Execution of Lease’. Sub rule (1) opens with the words ‘where the lease has been granted or renewed under these rules’. In the cases in hand, other than the LoI whereby the bids of the appellants had only been ‘provisionally’ accepted, there is not a single communication informing the appellants that the authorities had agreed to grant mining leases to them. Clearly, the stage of execution of lease was nowhere near in sight. 432. The only sub rule referring to extension of time is sub rule (4) of Rule 40. This rule applies only to a grantee. The appellants were not ‘grantees’ as their bids had not been finally accepted and mining leases had not been granted to them. The further reference in the Rule is to ‘extension of time’ for completing the formalities as mentioned in sub rule (1). Thus the extension of time referred to in Rule 4 is only with regard to the contingencies mentioned in Rule 40(1) (2) & (3) of the Rules of 2016. This provision does not relate to extension of time for complying with the terms and conditions of the LoI. 433. Mr F. A. Natnoo, ld. AAG, has also drawn our attention to the terms and conditions of the auction. The terms of the auction as set down in part-E specifically stipulated the period of six months. It needs no elaboration that the terms on which the auction was conducted or bids invited are held to be in the realm of invitation to make offers to contract as per rules. 178 LPA No.53/2020 & connected appeals Page 178 434. We may usefully advert to the pronouncement of the Supreme Court reported at (2001) 2 SCC 451, W.B. SEB v. Patel Engineering Co. Limited wherein it was held as under: “24. The controversy in this case has arisen at the threshold. It cannot be disputed that this is an international competitive bidding which postulates keen competition and high efficiency. The bidders have or should have assistance of technical experts. The degree of care required in such a bidding is greater than in ordinary local bids for small works. It is essential to maintain the sanctity and integrity of process of tender/bid and also award of a contract. The appellant, Respondents 1 to 4 and Respondents 10 and 11 are all bound by the ITB which should be complied with scrupulously. In a work of this nature and magnitude where bidders who fulfil prequalification alone are invited to bid, adherence to the instructions cannot be given a go-by by branding it as a pedantic approach, otherwise it will encourage and provide scope for discrimination, arbitrariness and favourtism which are totally opposed to the rule of law and our constitutional values. The very purpose of issuing rules/instructions is to ensure their enforcement lest the rule of law should be a casualty. Relaxation or waiver of a rule or condition, unless so provided under the ITB, by the State or its agencies (the appellant) in favour of one bidder would create justifiable doubts in the minds of other bidders, would impair the rule of transparency and fairness and provide room for manipulation to suit the whims of the State agencies in picking and choosing a bidder for awarding contracts as in the case of distributing bounty or charity. In our view such approach should always be avoided. Where power to relax or waive a rule or a condition exists under the rules, it has to be done strictly in compliance with the rules. We have therefore, no hesitation in concluding that adherence to the ITB or rules is the best principle to be followed, which is also in the best public interest. Xxxx 179 LPA No.53/2020 & connected appeals Page 179 30. Though Clause 29 in this case appears to be similarly worded as in the bid document in Spina Case a close reading of these clauses shows that no power of waiver is reserved in the case on hand. Xxx” (Emphasis supplied) 435. The stipulations made in the Rules as notified to the appellants in the LoI were unexceptionally binding on all bidders. 436. The appellants are unable to point out any statutory provision or rule or regulation or a term in the auction notice or the LoI enabling the respondents either to waive or to extend the time of six months for compliance of the conditions. Clearly, the respondents or their agents, have no power or authority at all to modify the preconditions in any manner or grant extension of the time stipulation laid down in the Rules. 437. The contention of the appellants that their obligation to deposit the balance 50% bid amount only after grant of EC has been rightly rejected by the Ld. Single Judge (Para 63 of the impugned judgment) 438. Therefore, it has to be held that the respondents have no power either to waive or modify the preconditions detailed in the LoI or to extend the time to comply with the same. XIII Whether processing of Environmental Clearances was delayed by the respondents and impact thereof 439. So far as the EC is concerned, Mr. Naik, ld. Senior Counsel (in LPA 61/2020) has contended that all steps thereof stood taken and the required amount stood deposited with the authorities by the appellants. Mr. Naik submits that no 180 LPA No.53/2020 & connected appeals Page 180 fault can be attributed to the appellants for delay in grant of the EC and that it was the respondents who were responsible for the delay. 440. Mr. Z. A. Shah, ld Senior Counsel has submitted before us, that the appellants in LPA No. 64/2020 (Vikar Ahmad Dar v. UT of Jammu and Kashmir) had complied with all the conditions required by the Rules and the stipulations in the LoI. We find, however, that other than the submission of the mining plan, the other two compliances were admittedly beyond the stipulated period. 441. It is noteworthy that the letter dated 23rd December 2019 also extracted from the LoI that it had notified the appellants to submit an approved mining plan and EC besides deposit of remaining 50% of the amount within a period of six months. 442. Mr Shah, has urged that the District level environmental impact committees were provided by the Government of India in its notification dated 15th January 2016 which also prescribes the procedure which was to be followed. It is submitted that a case came to be filed in 2016 before the NGT which had pronounced the judgment on September 2018, wherein in para 22, the Tribunal had held that the procedure must be laid down in terms of the judgment of the Supreme Court in Deepak Kumar. 443. Mr Shah, has further submitted that it was based on this judgment that the government of India has issued a notification in 2019 which had to be complied with by the appellants. It is the submission of Mr Shah that in this background, the appellant cannot be faulted for the five days delay in getting EC. 444. Defending the appellants who do not have the required clearances, our attention stands drawn by Mr Naik to letter dated 18th April 2018 from the MOEF&CC to five bidders (namely Balbir Singh who is appellant No.6 in LPA No.61/2020 and Rakesh Kumar Choudhary, Nagar Singh, Chaman Lal and 181 LPA No.53/2020 & connected appeals Page 181 Jorawar Singh-who are not appellants in LPA No.61/2020) reminding them of an earlier letter dated 26th March 2018, advising the addressees to await the formalization of the DSR by the concerned agency. 445. In support of his submissions, Mr. Altaf Naik, ld. Senior Counsel has also drawn our attention to the letter dated 14th March 2018 addressed by the SEIAA to three persons i.e. Rakesh Kumar Choudhary, Balbir Singh and Nagar Singh (appellant in LPA No.53/2020) who had applied for grant of EC for the river bed mining projects. The authority had notified these persons that since the DSR was awaited, it would not be possible to process the case in its absence thereof. Mr. Naik would contend that in this background, no fault can be attributed to the appellants. 446. Mr. Naik has further submitted that the appellants had completed all formalities including the requirements imposed under orders of the NGT of even obtaining clearance from the J&K Pollution Control Board. In this regard, a letter dated 6th January 2020 has been brought to our notice. This is a letter addressed by the J&K Pollution Control Board to Shri Balbir Singh and Shri Nagar Singh Choudhary requiring a deposit of Rs.3.50 lakhs for processing of a public hearing for two blocks. It is Mr. Altaf Naik’s submission that this amount was also deposited. 447. Mr. Vikram Shama, Advocate and Mr. Abhinav Sharma, Advocate have also drawn our attention to the communications dated 14th March 2018 and 18th April 2018 by the SEIAA, Government of India to some of the appellants submitting that the addressees had sought the EC. 448. It has been contended by Mr. Vikram Sharma, Advocate that the delay in consideration of the applications for EC was attributable to the State Government 182 LPA No.53/2020 & connected appeals Page 182 whose officers delayed the issuance of the DSR. Some delay is also attributed to the amendment of rules at the level of the MOEF&CC requiring changes in compliances by the applicants. 449. It is noteworthy that the letter dated 18th April 2018 was addressed to five persons (Rakesh Kumar Choudhary, Balbir Singh, Nagar Singh, Chaman Lal and Zorowar Singh) and the letter dated 23rd December 2019 was addressed only to two persons (Balbir Singh and Nagar Singh Choudhary). Only Balbir Singh (addressee in both the letters), is an appellant in LPA No.61/2020. Clearly in LPA No.61/2020, the other two appellants, namely, Sajad Ahmad Shah & Sabir Ahmad Sheikh had not even applied for the EC. 450. We find that the letter dated 18th April 2018 also informed the addressees about a gateway available to the addressees in case they were not willing to await the DSR. The Member Secretary of the SEIAA had informed the addressees therein that in case they were not willing to await the DSR, they were free to join hands with other projects proponents desirous of mining activities in the same areas/stream and to submit EIA and EMP for the entire stream. 451. These authorities had informed the addressees that their cases for EC could not be considered in the absence of either the DSR or, in the alternative, of the EIA and EMP. 452. Before us, none of the appellants have contended that the alternative suggested was not viable or possible. The appellants were thus not only aware of the fact that they were required to complete the formalities within six months but also they had available a gateway and alternative to the requirement of DSR. It was thus not necessary for the appellants to wait for the DSR and they had an option available to them. 183 LPA No.53/2020 & connected appeals Page 183 453. In the present case, the LoIs were clear. The three conditions were clearly declared as required to be complied with by every applicant within a time limit. It is an admitted position that not one of the appellants has complied with the three conditions within time stipulated. 454. We have found that the earliest LoI to any of the appellants before us was issued on 12th September 2017, while the last LoI was issued on 11th June 2018. The other LoIs were issued in between. The period of six months for the first letter of intent ended on 11th March 2018, and period for the last letter of intent ended on 10th December 2018. While for the others, the periods ended in between. After the 10th December 2018, (i.e. last expiry of the six months), all bidders had lost the right to consideration of their application. 455. The appellant in LPA No.53/2020 Rakesh Kumar Choudhary v. State of J&K and others, obtained approval of the mining plan, claims to have made applications for EC to the SEIAA but did not receive the clearance and this appellant has failed to deposit remaining 50% of the bid amount within the stipulated time. 456. We also find that from the dates which have been mentioned it appears that Rakesh Kumar Choudhary applied for EC within two months of the receipt of the issuance of LoI for some blocks. However, with regard to the applications for District Rajouri, while the LoI was issued on 5th October 2017, the EC was applied after expiry of six months on 14th April 2018 for some blocks and thereafter for others. 457. Mr F. A. Natnoo, learned AAG, has pointed out that with respect to the LoI issued on 5th October, 2017, Rakesh Kumar Chaudhary, waited five months before submitting his mining plan on 27th February, 2018. Mr. Natnoo points out that just 184 LPA No.53/2020 & connected appeals Page 184 like in all other cases, the respondent did not delay the approval of the mining plan which was given on 4th March, 2018 i.e., within three days of submission of the mining plan. The period of six months from the date of issuance of the LoI was expiring on 4th April, 2018. Rakesh Kumar Chowdhary applied for the EC only on 27th September, 2019 i.e., almost one year and seven months after approval of the mining plan. 458. On the same aspect, a letter dated 10th August 2018 from the Principal Secretary of Government, Department of Industries and Commerce addressed to Shri Ramesh Kumar, Deputy Commissioner, Jammu has been placed by the appellants before us wherein it is stated that hard and soft copies of the DSR/data prepared by the Geology and Mining Department for posting on the Districts website stood sent to his office on the 2nd July 2018 and immediate action as necessary was directed. 459. It has additionally been submitted by Mr. Vikram Sharma, Advocate that so far as the EC is concerned, no fault for the delay in processing could be attributed to the appellants. It is submitted that even the ld Single Judge has noted the fact that the Govt. of India had appointed the SEIAA for a period of three years and that between the periods 28th January 2019 to 4th July 2019 there was no SEIAA which could have issued the EC. 460. The EC had to be given by the Committee constituted by the Central Government. None of the appellants have made any grievance or sought directions from any court for constitution of the SEIAA when it was not in existence. Therefore, the delay in grant of EC cannot be foisted upon the authorities of the erstwhile State who stand impleaded as respondents before us. 185 LPA No.53/2020 & connected appeals Page 185 461. A letter dated 23rd December 2019 addressed by the J&K Environment Impact Assessment Authority has noted that the LoIs stood issued to these appellants on various dates in 2017 and 2018. It was clearly observed in this letter that the period of six months had lapsed in all the eight cases in which these two appellants in LPA No. 61/2020 (Balbir Singh and Nagar Singh) had applied for EC and advised them to submit a revalidated LoI from the agency concerned before grant of the EC. 462. Let us consider the facts regarding the only appellant who was able to get the mining plan processed, EC and made the deposit of 50%, Vikar Ahmad Dar (LPA No. 64/2020 filed in the Srinagar Wing) who also admits that he has failed to do so within the period required under the LoI. 463. We are informed that this appellant (Vikar Ahmad Dar) submitted the mining plan on 13th November 2017 (more than a month after issuance of the LoI) which was promptly approved by the competent authority on 15th November 2017 within two days of submission. The period of six months for compliance by Vikar Ahmed Dar, of the three conditions in the LoI expired on 5th April 2018. 464. According to Mr F. A. Natnoo, ld. AAG, as per the web portal of the DEIAA, Vikar Ahmad Dar has submitted his application for EC, only on the 11th April 2018 almost five months after approval of the mining plan. The mandatory period of six months from issuance of the LoI had also expired by this date. 465. It is urged by Mr. Z. A. Shah, Senior Advocate that the appellant was granted EC on the 11th April 2018, which does not appear to be correct. No material in support is forth coming on record. 186 LPA No.53/2020 & connected appeals Page 186 466. So far as the deposit of the balance 50% of the bid amount the appellant Vikar Ahmad Dar is concerned, it is again orally submitted that he deposited the same on 29th July 2018 (almost ten months after issuance of the LoI). 467. On the other hand, the respondents have submitted that the balance 50% of his bid amount was received by the DMO and forwarded to the Joint Director, Kashmir only on the 29th June 2018 which was forwarded to the Director on 3rd July 2018. Even this was beyond the six month period under the LoI. 468. The clearance from the Pollution Control Board was obtained on 27th December, 2019. It is noteworthy that this was more than two years and four months after issuance of the LoI on 5th October 2017. 469. The above narration of facts in LPA 56/2020 Chaman Lal v. State manifests that behind all these vehement legal submissions, is the hard reality that the appellants in this appeal have not cared to fulfill any of the conditions prescribed under the Rules or as stipulated in the LoI. 470. We have also noted above that none of the appellants in LPA 62/2020 (Mohd. Ashore Mir & Ors. V. Union Territory) have deposited the balance bid amount. They have also not applied for EC. Mohd. Shaban Bhat-appellant No.3 did not even submit a mining plan. The position qua the other appellants is not much different. 471. Mr Natnoo has drawn our attention to the communication dated 4th January, 2019, informing Rakesh Kumar Chaudhary that he had failed to comply with the rules and called upon him to deposit the balance 50% bid amount and obtain EC within one month failing which appropriate action would be taken in the matter. 472. This communication dated 4th January, 2019 was assailed by Rakesh Kumar Chaudhary by way of a second writ petition being OWP no.50/2019. Directions 187 LPA No.53/2020 & connected appeals Page 187 were inter alia sought for and execution of mining leases in favour of the writ petitioner and quashing of the communication dated 4th January, 2019; approval of the DSR; issuance of the EC. The appellant also objected to the requirement for public consultation required by the JK State Pollution Control Board. 473. OWP 50/2019 was listed before the Ld. Single Judge on 15th January, 2019, when while ordering notice, the respondents were directed to finalize the case of the EC of the petitioner Rakesh Kumar Chaudhary by the next date. A further order was passed on 1st February, 2019 directing that the writ petition be listed with OWP No.2648/2018 and that the respondent No.2 shall not act upon the impugned notice dated 4th January, 2019. This writ petition is still pending. 474. OWP No.50/2019 was filed on 10th January, 2019 again long after expiry of the period of six months after the issuance of the LoI on 5th Ocotber, 2017. 475. We find that in their absolute arrogance, the appellants who did not deposit the balance fifty percent of the bid amount, do not give a whit of an explanation or excuse for the same. 476. In this background, these appellants cannot be heard to say that the appellants have conducted themselves with diligence and expedition, and, that the respondents are responsible for the delay in the matter. 477. We find that the issue of delay being attributed to the State Government in the processing of applications for grant of EC and consequentially the applicants being entitled to consideration of their applications for renewal of concessions dehors this requirement under the applicable rules was pressed before the Supreme Court in the judgment reported at (1981) 2 SCC 205 (Para 13), State of Tamil Nadu v. Hind Stone and Others. The Supreme Court rejected the submissions with the following observations: 188 LPA No.53/2020 & connected appeals Page 188 “13. Another submission of the learned counsel in connection with the consideration of applications for renewal was that applications made sixty days or more before the date of G.O.Ms. No. 1312 (2-12-1977) should be dealt with as if Rule 8C had not come into force. It was also contended that even applications for grant of leases made long before the date of G.O.Ms. No. 1312 should be dealt with as if Rule 8C had not come into force. The submission was that it was not open to the Government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable tune clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. None has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of G.O.Ms. No. 1312 should be dealt with as if Rule 8-C did not exist.” (Emphasis by us) 478. We have elaborately considered the issue as to whether the respondents had the power to either grant exemption from compliance with the conditions laid down in the LoIs or to extend the period for compliance thereof, and have held that no such power lay with the respondents to do so. Therefore, even if fault for the 189 LPA No.53/2020 & connected appeals Page 189 delay in finalizing of the DSR and consequential inability in processing of the application for EC could be laid at the door of the respondents, so far as the appellants are concerned, nothing turns in their favour as a result. 479. In this background, any change effected to procedural requirements on account of a judgment of the NGT also does not assist any of the bidders (the appellants before us). Even otherwise, the appellant has not cared to approach the court within six months period prescribed by in the rules and by the LoI. 480. Most appellants applied for ECs almost at the verge of expiry of the six months period and delay for the same cannot be attributed to the respondents. Delays on part of the Govt. officers, if any, in the instant case are inconsequential. 481. Significantly no reminder was sent for issuance of the DSR for which there was an alternative as per the letters dated 14th March & 18th April, 2018 as above by any of the appellants. Not a single highest bidder filed a petition within a period of six months seeking any direction from this court to the respondents to ensure that DSR was expedited and the EC granted within the period required by the rules 482. Clearly having commenced mining using the shield of Rule 104-A, the appellants were not bothered about compliances with any of the mandatory conditions laid down in the Rules, as notified in the auction notice and the LoIs. We have no manner of doubt that these appellants were least interested in making good their financial obligations of the huge amount owed by them as 50% of the balance bid amount. 483. We completely agree with the observation of the learned Single Judge in para-63 of the impugned judgment that the writ petitioners had an absolute and legal obligation to deposit the remaining 50% of the bid amount irrespective as to whether they have been granted EC or not by the SEIAA. 190 LPA No.53/2020 & connected appeals Page 190 484. All those persons who have failed to deposit the 50% balance amount of the bid amount and/ or obtain the clearances within the period of six months from the date of LoI lost even the right of consideration for their applications and have to be non-suited. 485. There is no cavil in saying that the compliance was delayed by a mere day, or a month or few months. Delay is delay, irrespective of its extent and consequences thereof know no exception or exemption. 486. For the foregoing reasons, we are unable to agree with the conclusion of the learned Single Judge in para-46 of the judgment while dealing with issue No.(ii) that the writ petitioners had a remedy in common law to seek compensation or with the finding on issue No. iv that the appellants were not responsible for the delay. For the reason that no contract had come into existence, the doctrine of frustration was neither attracted nor applicable. These conclusions are, therefore, set aside. XIV Whether the respondents had made a representation and promise to the appellants and would stand estopped from withdrawing from it? 487. It has been contended before us by the appellants that the respondents had held out the promise of grant of mining lease in the auction notice, that the appellants were declared highest bidders in the auction and that they had deposited amounts pursuant thereto. The appellants have vehemently contended that the respondents are bound by their representations and promise to these bidders and estopped from back tracking therefrom. 488. Mr Vikram Sharma, learned counsel for the appellant in LPA 53/2020, has submitted that in the instant case, premised on the representation of the respondents, that the appellant was entitled to a mining lease, he has materially 191 LPA No.53/2020 & connected appeals Page 191 altered his position. It is submitted that there was an obligation on the respondents to ensure that they facilitated fulfillment of the preconditions within the six months period and granted mining lease to the appellant. In support of his submission, Mr. Vikram Sharma placed reliance on the pronouncement of the Supreme Court reported at AIR 1971 SC 1021 : Century Spinning & Manufacturing Company Ltd., & anr. v. The Ulhasnagar Municipal Council and anr. 489. The question which arises is as to whether the respondents had at all made a representation or held out a promise to grant mining leases to the appellants? And further, even if it could be held that there was a promise or representation made by the authorities to the appellants, does it give rise to any basis for holding the government bound by the same? Even if made, what are the circumstances in which the government can withdraw from its representation/ promise or change its policy? The answer to all these questions is well settled. 490. In the cases in hand, we do not find a single submission in the writ petitions setting out any representation or un-conditional promise on the part of the respondents that the highest bidders would be granted mining leases irrespective of whether they comported to the requirements of the Rules of 2016 or not. The very Rules relied upon by the appellants prescribe the manner in which the lease has to be granted and executed. This has not been done. On the contrary, the appellants have admittedly failed to comply with the requirements under the rules. 491. Importantly there is also no averment at all as to how and where the appellants have altered their position. Even on application of the principles in Century Spinning Mills, there is thus no promise binding the respondents to grant mining leases to the appellants. 192 LPA No.53/2020 & connected appeals Page 192 492. The answer to this question is to be found in the pronouncement of the Supreme Court in Century Spinning & Manufacturing Company Ltd., & anr. v. The Ulhasnagar Municipal Council and anr, wherein the court held as follows: “Public bodies are as much bound as private individuals to carry out representations of facts and promises made by them, relying on which other persons have -altered their position to their prejudice. The obligation arising against an individual out of his representation amounting to a promise may be enforced ex contractu by a person who acts upon the promise : when the law requires that a contract enforceable at law against a public body shall be in certain form or be executed in the manner prescribed by statute, the obligation may be if the contract be not in that form be enforced against it in appropriate cases in equity. 'In Union of India & Ors. v. Mls. IndoAfghan Agencies Ltd.(1) this Court held that the Government is not exempt from the equity arising out of the acts done by citizens to their prejudice, relying upon the representations as to its future conduct made by the Government. This Court held that the following observations made by Denning, J., in Robertson v. Minister of Pensions(1) applied in India \"The Crown cannot escape by saying that estoppels do not bind the Crown for that doctrine has long been exploded. Xxxx xxxxx xxxx If our nascent democracy is to thrive different standards of conduct for the people and the public bodies cannot ordinarily be permitted. A public body is, in our judgment, not exempt from liability to carry out its obligation arising out of representations made by it relying upon which a citizen has altered his position to his prejudice. xxx xxx” (Emphasis by us) 193 LPA No.53/2020 & connected appeals Page 193 493. On this aspect, we may usefully also advert to the judgment of the Supreme Court reported at (1997) 3 SCC 398, Shrijee Sales Corporation and Anr. V. Union of India, wherein the Supreme Court observed that once public interest is accepted as the superior equity which can override individual equity the principle would be applicable even in cases where a period has been indicated for operation of the promise. If there is a supervening public equity, the Government would be allowed to change its stand and it has the power to withdraw from a representation made by it which induced persons to take certain steps which may have gone adverse to the interest of such persons on account of such withdrawal. Moreover, the Government is competent to rescind from the promise even if there is no manifest public interest involved, provided no one is put in any adverse situation which cannot be rectified. 494. In the judgment of the Supreme Court reported at (2006) 13 SCC 708, M. P. Mathur v. D.T.C, the Supreme Court has held that promissory estoppel is based on equity or obligations and is not a vested right. The Court has to strike a balance in equity between individual rights on the one hand and the larger public interest on the other. It has been held that if “there is a supervening public equity, the Government would be allowed to change its stand and it has the power to withdraw from a representation made by it which induced persons to take certain steps, which may have gone adverse to the interest of such persons on account of such withdrawal.” It was held that merely because the resolution was announced for a particular period, it did not mean that the Government could not amend and change the policy under any circumstances. If the party claiming application of doctrine acted on the basis of a notification, it should have known that such 194 LPA No.53/2020 & connected appeals Page 194 notification was liable to be amended or rescinded at any point of time, if the Government felt that it was necessary to do so in public interest. 495. Let us examine the other part of the government decision. The respondents have also taken the decision to henceforth grant mining licences only by e-auction. So far as this change of policy is concerned, it would impact grant of mining leases which fall in the realm of contractual matters. 496. The principles which apply to State functioning in matters of policy in contractual matters have been considered in the pronouncement of the Supreme Court reported at AIR 1991 SC 537: Kumari Shri Lekha Vidyarthi & Ors. V. State of U.P. & Ors. It was observed as follows: “It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasona- bleness, it would be unconstitutional. See Ramana Dayaram Shetty v. The International Airport Authority of India and Ors., [1979] 3 SCR 1014 and Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir & Anr., [1980] 3 SCR 1338. In Col. A.S. Sangwan v. Union of India and Ors., [1980] Supp. SCC 559, while the discretion to change the policy in exercise of the executive power, when not trammelled by the statute or rule, was held to be wide, it was emphasised as imperative and implicit in Article 14 of the Constitution that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touch-stone, irrespective of the field of activity of the State, has long been settled. Later decisions of this Court have reinforced the foundation of this tenet and it would be sufficient to refer only to two recent decisions of this Court for this purpose.” (Emphasis supplied) 497. The learned Single Judge has placed reliance on the following observations of the Supreme Court in the judgment reported at AIR 1997 SC 2233: Premium Granites vs. State of Tamil Nadu in support of the decision of the respondents, wherein it was held as under: 195 LPA No.53/2020 & connected appeals Page 195 “It is not the domain of the court to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be. The court is called upon to consider the validity of a public policy only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution of India or any other statutory right. xxxxx” In the case in hand, the appellants are unable to make out violation of any right by the decision of the respondents. 498. Mr F. A. Natnoo, ld. AAG, has placed reliance on the pronouncement of the Gujarat High Court reported at 2014 (3) GLH 425 (paras 6.6, 10.10 and 10.12) Patel Vishnubhai Maganbhai v. State of Gujarat. In this case the Government changed the mode of disposal of minor minerals on the policy of first come first served contained in Rule 8 of the Rules of 2010 to a public auction by issuance of directions which was upheld. The observations recorded by the High Court read thus: “6.6 It is further submitted that though Chapter VIII under the heading ‘Miscellaneous’ contains Rules 69 and 70 provide for ‘disposal of minor minerals by public auction in certain cases’ and ‘power of government to give direction’, however, will not defeat right accrued to the applicants under Rule 8 of the Rules, 2010. As per law, rules prevalent at the time of receiving applications will apply, and any inconsistency contained in the guidelines/directions issued by the authorities of Department of Industry and Mines of State of Gujarat with that of Act, 1957 and/or Rules, 2010 is to be ignored, and will have no applicability whatsoever to the pending applications on 31.03.2010. Even Rule 69 does not empower any such authority to 196 LPA No.53/2020 & connected appeals Page 196 issue direction or guidelines or to take any administrative action contrary to Rule 8 of the Rules, 2010. There is no rationale behind doing away with policy of first come first serve defeating the legitimate expectation of petitioners for grant of mining lease in accordance with Rules, 2010 and prevalent policy in larger public interest. xxxxx 10.10 That affidavit filed by the respondent authority clearly revealed that before issuance of instructions/guidelines/ directions, the matter was placed for due deliberation including approval and sanction of the higher authority of the Department and it was considered by task force and Coordination cum Empowered Committee held under the Chairmanship of the Chief Secretary on 09.09.2010 and thereafter it was decided that all mineral bearing areas be put up in public domain and procedure to be followed, and accordingly the Commissionerate of Geology and Mining issued guidelines on 06.04.2011 qua disposal of applications received after 31.03.2010 for major/minor mineral concession through blocks/auction and a clarificatory instructions/ communication dated 01.10.2011 cannot be said to be in any manner contrary to law. The said guidelines dated 06.04.2011 received approval of highest authority of the Department of Mines and Industry as per note dated 01.04.2011 and the contention raised by learned advocates for the petitioners that the Collector is the only competent authority to issue instructions/guidelines in the case of minor mineral is misconceived and decision taken by highest authority cannot be faulted on such contention. Therefore, it cannot be said that even any flaw is noticed in decision making process. 10.12 The decisions viz. Central For Public Interest Litigation [supra] and [ii] Natural resources Allocation [supra] for which law laid down by Their Lordships of Apex Court in view of what is interpreted and held in the foregoing paragraphs of of this judgment on the context of Rules 8(4), 69 & 70 of the Rules, and particularly 197 LPA No.53/2020 & connected appeals Page 197 when the State Government authorities have decided to put minor minerals in public domain in a fair and transparent manner, it cannot be said that law laid down by the Apex Court in the above two decisions have any bearing on the facts of these cases.” (Emphasis by us) 499. Coming to the issue of permissibility of change of policy, we note that the legal position is that the Government stands permitted to change even industrial policy if the situation so warrants. Such decisions changing policy had come up for consideration in the judgments reported at AIR 1997 SC 3910 Pawan Alloys and Casting Pvt. Ltd. V. U. P. State Electricity Board and others and (1990) 1 SCC 572, Sales Tax Officer and another v. Shree Durga Oils Mills and another. 500. In Pawan Alloys and Casting Pvt. Ltd., it has been observed by the Supreme Court that merely because a resolution stood announced for a particular period, it did not mean that the government could not amend and change the policy under any circumstances. The notification can be amended or rescinded at any point of time if the government felt that it was necessary to do so in public interest. 501. In Shri Durga Oil Mills and another, it was held that even an industrial policy resolution can be changed if there is overriding public interest involved. In this case, the State had contended that various notifications granting sales tax exemptions to the dealers resulted in severe resource crunch. On a reconsideration of the financial position, it was decided to limit the scope of the exemption notifications issued under Section 6 of the Orissa Sales Tax Act. The Supreme Court upheld the withdrawal of notification holding that it was done in public interest and that the Court would not interfere in any action taken by the Government in public interest. It was further observed that public interest must 198 LPA No.53/2020 & connected appeals Page 198 override any consideration of private loss or gain and, therefore, the plea of change of policy on the basis of resource crunch was sufficient for dismissing the case of the assessee which was based on the doctrine of promissory estoppel. 502. The questions raised before this court find a complete answer in the words of Supreme Court in the judgment reported at (2002) 2 SCC 188, Sharma Transport v. Government of A.P and others, even in a case where a promise or representation stood made. The Supreme Court has laid down the disclosure which the government would be required to make before the court to enable it to take the decision on the inequity which would result if the government was held to its representation. It was held as follows: \"If it can be shown by the Government that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the court would not raise an equity in favour of the promise and enforce the promise against the Government. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government should be held bound by the promise made by it. But the Government must be able to show that in view of the fact as has been transpired, public interest would not be prejudiced. Where the Government is required to carry out the promise the Court would have to balance the public interest in the Governments carrying out the promise made to the citizens, which helps citizens to act upon and alter their position and the public interest likely to suffer if the promises were required to be carried out by the Government and determine which way the equity lies. It would not be enough just to say that the public interest requires that the Government would not be compelled to carry out the promise or that the public interest would suffer if the Government were required to honour it. In order to resist its liability the Government would disclose to the court the various events insisting its claim to be 199 LPA No.53/2020 & connected appeals Page 199 exempt from liability and it would be for the court to decide whether those events are such as to render it inequitable to enforce the liability against the Government.\" (Emphasis by us) 503. In this regard Mr F. A. Natnoo, ld. AAG, has placed reliance on pronouncement of the Supreme Court reported at (1996) 5 SCC 268 : PTR Exports (Madras) Pvt. Ltd. & Ors. v. Union of India & Ors. In this case the petitioner was challenging a change in Government policy with regard to grant of export licence contending that it had a legitimate expectation to consideration and grant of his application in terms of the Government policy prevailing at the time the application was made. The court rejected the contention of the petitioner and held that the court would not bind the Government to its previous policy by invoking the doctrine of legitimate expectation of the applicant for the licence unless the change in policy is vitiated by malafide or abuse of power which the applicant must plead and prove to the satisfaction of the court. The court also held that doctrine of promissory estoppel is equally inapplicable to the facts and circumstances of the case. We usefully extract the observations of the court as follows: “2.Shri Vaidyanathan, learned counsel, contended that the Government had promised to grant MEE and NQE quotas for those who upto date their quality of products by purchasing new machines after expiry of 5 years life span or given promise that all those who performed their applications MEE were entitled to NQE quota and that, therefore, the respondents are estopped to recile from the promise made to them. They cannot act in a way detrimental to their legitimate expectations. We find no force in the contention. It is seen that the change in the policy is as a result of GATT agreement with all contracting countries. The quota system was available to export 200 LPA No.53/2020 & connected appeals Page 200 garments and clothing to European countries, viz., U.S.A, Canada, Norway etc. The Government took the policy that with a view to meet more competitive quality in the foreign markets introduced FCFS system giving 20% of the export. PPE was provided with 80% of the export. The new dynamism in the policy would make the trade more competitive and it will be in the best interest of the country and to boost in export potentiality and foreign exchange, on account thereof MEE and NQE quotas were eliminated and large allocation was issued to PPE system and rest of 20% was marked for FCFS system. It was also pointed that the Government encountered that MEE system was beset with floods of false declarations of the productive capacity by unscrupulous traders masquerading as exporters. Though action was being taken against persons who committed fraud but it became difficult to stop misutilisation of the scheme completely. Consequently, MEE system was eliminated. The Government, therefore, took policy to abolish NQE system so that the genuine quota exporters could do business so as to stop the malady and to preserve PPE and FCFS system. 3. In the light of the above policy question emerges whether the Government is bound by the previous policy or whether it can revise its policy in view of the changed potential foreign markets and the need for earning foreign exchange? It is true that in a given, set of facts, the Government may in the appropriate case be bound by the doctrine of promissory estoppel evolved in Union of India Vs. Indo- Afghan Agencies [(1968) 2 SCR 366]. But the question revolves upon the validity of the withdrawal of the previous policy and introduction of the new policy. The doctrine of legitimate expectations again requires to be angulated thus: whether it was revised by a policy in the public interest or the decision is based upon any abuse of the power? The power to lay policy by executive decision or by legislation includes power to withdraw the same unless in the former case, it is by malafide exercise of power or the decision or action taken is in abuse of power. The doctrine of legitimate expectation 201 LPA No.53/2020 & connected appeals Page 201 plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law.xxxxxx It is therefore, by exercise of the power given to the executive or as the case may be, the legislature is at liberty to evolve such policies. 4. An applicant has no vested right to have export or import licences in terms of the policies in force at the date of his making application. For obvious reasons, granting of licences depends upon the policy prevailing on the date of the grant of the licence or permit. The authority concerned may be in a better position to have the overall picture of diverse factors to grant permit or refuse to grant permission to import or export goods. The decision, therefore, would be taken from diverse economic perspectives which the executive is in a better informed position unless, as we have stated earlier, the refusal is mala fide or is an abuse of the power in which event it is for the applicant to plead and prove to the satisfaction of the Court that the refusal was vitiated by the above factors. 5. It would, therefore, be clear that grant of licence depends upon the policy prevailing as on the date of the grant of the licence. The Court, therefore would not bind the Government with a policy which was existing on the date of application as per previous policy. A prior decision would not bind the Government for all times to come. When the Government are satisfied that change in the policy as necessary in the public interest, it would be entitled to revise the policy and lay down new policy. The Court therefore would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same. Equally, the Government is left free to determine priorities in the matters of allocations or allotments or utilisation of its finances in the public interest. It is equally entitled, therefore,. to issue or withdraw or modify the export or import policy in accordance with the scheme evolved. We, therefore, hold that the petitioners have no vested or accrued right for the issuance of permits on the MEE or NQE, nor the Government is bound by its previous 202 LPA No.53/2020 & connected appeals Page 202 policy. It would be open to the Government to evolve the new schemes and the petitioners would get their legitimate expectations accomplished in accordance with either of the two schemes subject to their satisfying the conditions required in the scheme. The High Court therefore; was right in its conclusion that the Government are not barred by the promises or legitimate expectations from evolving new policy in the impugned notification.” (Emphasis by us) 504. In this case the submission by the petitioner was interestingly premised on pointing out the distinction between an agreement to lease and agreement of lease and rested on the precedent of the Supreme Court reported at (1994) 2 SCC 497, State of Maharashtra v. Atur India Private Limited. It was held herein that a contract for a lease would be merely an agreement that such a conveyance shall be entered into at a future date. The petitioner had pointed out that in case of a lease, there must be a demise. 505. The respondents have amended the rules restricting auctions to e-mode only. No challenge has been laid thereto. 506. The change of policy was thus not only bonafide but completely in public interest and absolutely necessary. 507. Furthermore, none of the present appellants have argued that they were put to any losses or adverse situation, let alone a position which cannot be rectified. As noted, the appellants do not allege malafide against the respondents. Before us, the appellants have utilized the shield of Rule 104-A of the Rules of 2016. Even though the respondents have not granted any permission thereunder. 508. The appellants have illegally extracted and commercially exploited minerals from the sites for which they had bid. The appeallants have thereby derived huge 203 LPA No.53/2020 & connected appeals Page 203 commercial profits while appropriating the national resource to their individual interest. Certainly, there is no alteration of position to their prejudice by the appellants which could justify this court taking the decision that the respondents must be held to their “representation”, if any, in the LoI to do justice between the parties. The principles laid down in Rishi Kiran Logistics Pvt Ltd squarely apply to the present cases. 509. We agree with the finding of the learned Single Judge on issue No. (iii) in para (i) at page 36 of the impugned judgment and hold that the doctrine of promissory estoppel is neither attracted nor has any application to the present cases. XV Cancellation of the entire auction process- permissibility & validity 510. We now turn to an examination of the issue of the cancellation of the entire bidding process by the respondents. We find that the instant appeals are not the first cases where entire auctions stand cancelled. Prior hitherto auctions also have been cancelled and the highest (or the lowest, as the case may be) bidders took the cancellations to court. Authoritative pronouncements laying down both the permissibilities and the boundaries of both the grounds of challenge and the consideration by the court have been examined by us. We discuss hereafter the principles laid down by the Supreme Court of India in these precedents. 511. In the judgment of the Supreme Court reported at (2016) 4 SCC 716, State of Uttar Pradesh and another v. Al Faheem Meetex (P) Ltd, while considering the validity of the cancellation of the entire tender process at the instance of the bidders who had participated in the tender process for construction of a modern 204 LPA No.53/2020 & connected appeals Page 204 slaughter house the Supreme Court also set down the legal principles of permissibility of judicial interference in such matters. 512. A few necessary facts first. By a notice dated 26th May 2010, the Nagar Nigam, Meerut invited tenders for Request for Qualification (RFQ) for establishment of a new modern slaughterhouse at Village Ghosipur, Meerut on Build-Operate and Transfer (BOT) basis. Three firms had submitted financial and technical bids and the consultant had found all the three bids to be deficient. Bids were invited afresh by a notice dated 29th June 2010. Five bids were received out of which four companies were permitted to participate in the RFQ stage. The Nagar Nigam issued the RFP on 29th September 2010 pursuant whereto tenders were submitted by three firms. In its meeting dated 8th September 2010, the Bid Evaluation Committee (BEC) had selected Al Faheem Meetex (P) Ltd.- respondent No.1 as a developer out of the only two firms whose bids were found eligible for consideration. Before the recommendations of the BEC could be placed before the Cabinet of Ministers (the competent authority), the Finance Department pointed out certain procedural irregularities. In this background, the BEC had taken a decision on 22nd November 2010 cancelling its earlier decision dated 8th September 2010. 513. The Supreme Court held that the BEC (which had selected the respondent No.1) was only a recommendatory body and that the matter had not reached the competent authority for final decision. The action of the BEC in cancelling the selection was sustained also for the reason that there were insufficient bidders and it was necessary that the bidding process became more competitive. For this reason, the Supreme Court decided that the decision could not be held to be unfair, malafide or based on irrelevant considerations and held that the High Court had 205 LPA No.53/2020 & connected appeals Page 205 gone wrong in finding fault with the decision of the BEC that it could not have taken a decision without notice to the BEC. 514. A factor which had weighed with the Supreme Court was that it was almost six years when the notice inviting tenders was published and that fresh tendering was essential to ensure establishment of a modern slaughterhouse. In these appeals as well the auctioning commenced in 2017, almost three years before the cancellation of the auction. 515. A situation of cancellation of bidding and change of policy regarding disposal of properties arose before the Supreme Court in the judgment reported at (2007) 2 SCC 588, Ramchandra Murarilal Bhattad v. State of Maharashtra. In this case, the decision was taken to reject all bids received regarding a public project after the petitioner had satisfied their minimum eligibility criteria, the technical and financial bids stood opened and the appellants had been found to be the highest bidder. Thereafter, all tenders were cancelled which was challenged in court. The Supreme Court had noted the issue arising for consideration (which was similar to the issue raised in the present case) in the following terms: “53. In this case, highest offer has not been rejected. A new policy decision has been taken. Question as noticed herein is not as to whether the offer of the Appellants should have been rejected but is as to whether the Authority in law could have altered its policy in regard to disposal of its properties. 'Public Trust Doctrine' was also sought to be invoked by Mr. Nariman against the Authority and in this behalf reliance has been placed on Bangalore Medical Trust Vs. B.S. Muddappa & Ors. [(1991) 4 SCC 54]. This Court therein was dealing with a master plan in the light of justifiability of exercise of discretionary jurisdiction under the Town Planning Act. Having regard to the provisions contained in Sub-Section (4) of Section 19 of the Bangalore Development Authority Act, 1976 as also the fact that 206 LPA No.53/2020 & connected appeals Page 206 the discretionary jurisdiction had been arbitrarily exercised, this Court invoked the 'public trust doctrine' saying that although the State is required to keep a vigil on the local body, but, thereby the power thereunder cannot be stretched so as to entitle the Government to alter any scheme and convert any site or power specifically reserved in the statute in the Authority”. (Emphasis by us) 516. In (2010) 6 SCC 303, Shimnit Utsch India Pvt. Ltd. And anr v. West Bengal Infrastructure Development Corporation Ltd and ors, the first NIT was issued in July 2003 by the States of West Bengal and Orissa for manufacture and supply of HSRP fixing 06-08-2003 as the last date for submission of tender papers. Four bidders participated, however, the finalization of the tender process could not take place because of the interim order passed by the Supreme Court. The cases could be decided by the Supreme Court finally only on 30th November 2004. Of the four bidders who had initially participated in the tender process, one withdrew. As regards another (Promuk), Shimnit objected to their eligibility and approached the Calcutta High Court obtaining an interim order from a Single Judge that the tender process be not finalized. 517. As a result of the litigation, no substantial progress took place for two years in finalization of process for which NIT was issued in July 2003 and practically only two bidders in the entire tender process remained in fray. 518. During this period, a considerable number of indigenous manufacturers obtained the requisite TAC from the approved institutions as per the statutory requirements and thereby acquired the capacity and ability to manufacture the product. In this background, the State Government formed an opinion that by increasing competition, greater public interest could be achieved and accordingly decided to cancel the first NIT and proceed afresh, doing away with conditions like 207 LPA No.53/2020 & connected appeals Page 207 experience in foreign countries and prescribed minimum turnover from their business. 519. This decision of the State Government was challenged before the Calcutta High Court which observed that there was no challenge to the changed policy on any of grounds of Wednesbury reasonableness or principle of legitimate expectation or arbitrariness or irrationality. On the issue of sufficiency of circumstances justifying departure from the previous stand, in Shimmit Utsch Ltd, the Calcutta High Court recorded a finding that the reasons stated by the State Government for departure from the condition of the first NIT did exist and accepted the Government’s contentions that by increasing the area of competition, greater public interest would be sub-served because of financial implications. 520. The Supreme Court repelled the challenge by Shimmit Utsch Ltd, to the decision of the Calcutta High Court including on the ground of malafide, holding as follows: “52. We have no justifiable reason to take a view different from the High Court insofar as correctness of these reasons is concerned. The courts have repeatedly held that government policy can be changed with changing circumstances and only on the ground of change, such policy will not be vitiated. The government has a discretion to adopt a different policy or alter or change its policy calculated to serve public interest and make it more effective. Choice in the balancing of the pros and cons relevant to the change in policy lies with the authority. But like any discretion exercisable by the government or public authority, change in policy must be in conformity with Wednesbury reasonableness and free from arbitrariness, irrationality, bias and malice.” (Emphasis supplied) 208 LPA No.53/2020 & connected appeals Page 208 521. The Supreme Court also laid down binding principles in Shimmit Utsch Ltd on the manner in which authorities should proceed in the following manner: “64. It is true that the State or its tendering authority is bound to give effect to essential conditions of eligibility stated in a tender document and is not entitled to waive such conditions but that does not take away its administrative discretion to cancel the entire tender process in public interest provided such action is not actuated with ulterior motive or is otherwise not vitiated by any vice of arbitrariness or irrationality or in violation of some statutory provisions. It is always open to the State to give effect to new policy which it wished to pursue keeping in view `overriding public interest’ and subject to principles of Wednesbury reasonableness.” (Emphasis by us) 522. The Supreme Court has also had occasion to rule on the scope of judicial review into the cancellation/discharge of a tender process after submission of bids/tenders in the judgment reported at (2014) 3 SCC 760, Maa Binda Express Carrier and another v. North East Frontier Railway and another. So far as the right of participants in the bid is concerned, in para 8 of the judgment, the Supreme Court has ruled as follows: “8. The scope of judicial review in matters relating to award of contract by the State and its instrumentalities is settled by a long line of decisions of this Court. While these decisions clearly recognize that power exercised by the Government and its instrumentalities in regard to allotment of contract is subject to judicial review at the instance of an aggrieved party, submission of a tender in response to a notice inviting such tenders is no more than making an offer which the State or its agencies are under no obligation to accept. The bidders participating in the tender process cannot, therefore, insist that their tenders should be accepted simply because a given tender is the highest or lowest depending upon whether the contract is for sale 209 LPA No.53/2020 & connected appeals Page 209 of public property or for execution of works on behalf of the Government. All that participating bidders are entitled to is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. It is also fairly well-settled that award of a contract is essentially a commercial transaction which must be determined on the basis of consideration that are relevant to such commercial decision. This implies that terms subject to which tenders are invited are not open to the judicial scrutiny unless it is found that the same have been tailor made to benefit any particular tenderer or class of tenderers. So also the authority inviting tenders can enter into negotiations or grant relaxation for bona fide and cogent reasons provided such relaxation is permissible under the terms governing the tender process.” (Emphasis supplied) 523. We have already noticed above that cancellation of the entire bidding on account of public interest in obtaining the best “realistic market price” stands sustained by the Supreme Court in para 20 of the pronouncement in (2015) 13 SCC 233 : Rishi Kiran Logistics Pvt. Ltd v. Board of Trustees of Kandla Port Trust & Ors. In para 21 it was ruled that the decision of the Port Trust therefore was not arbitrary. 524. The applicable principle on which such cancellation must be tested is stated in para 22 of Rishi Kiran Logistics thus: “22. When competing claims are private interest v. public interest, then in the case of disposal of public property the question would be whether the right of the person, who has earned the right to the public property in a public auction, is to be preferred over the right of the public in ensuring that valuable public assets were not disposed of except for a fair price and in a fair and transparent manner. Whether this court should, in judicial review, sit in 210 LPA No.53/2020 & connected appeals Page 210 judgment over the decision of a public body which is of the view that it need not go further ahead with the tender process. It is true if such a decision is taken without any reasons to support it, or mere ipsi dixit, it would be arbitrary. In this case there are reasons. The High Court analysed the reasons and has taken the view that those reasons are valid. In our view in matters, particularly to the disposal of valuable assets by the State when the State seeks to explore the possibility of getting higher price.” (Emphasis by us) The Supreme Court has thus held that the action of the Port Authority was not arbitrary or unreasonable being in over riding public interest. Clearly, it is open to an authority to cancel an entire process of bidding or tendering for good reason, public interest in obtaining optimal rates providing just cause for doing so. 525. Several judicial authorities are also available wherein the Supreme Court has upheld decisions of authorities to reject a lowest bid or refuse to accept the highest bid. The reasons and circumstances in which this was sustained shed valuable light on the matters in hand. We consider some of such precedents hereafter. 526. In (2001) 1 SCC 451, W.B. SEB v. Patel Engineering Co. Limited, the Corporation had chosen to reject the lowest tender. This decision was upheld by the Supreme Court emphasizing the public interest in adherence to the rules and conditions on which bids are invited, observing as follows: “31. The submission that remains to be considered is that as the price bid of Respondents 1 to 4 is lesser by 40 crores and 80 crores than that of Respondents 11 and 10 respectively, public interest demands that the bid of Respondents 1 to 4 should be considered. The Project undertaken by the appellant is undoubtedly for the benefit of the public. The mode of execution of the work of the Project should also ensure that the public interest is best served. Tenders are invited on the basis 211 LPA No.53/2020 & connected appeals Page 211 of competitive bidding for execution of the work of the Project as it serves dual purposes. On the one hand it offers a fair opportunity to all those who are interested in competing for the contract to execution of the work and , on the other hand it affords the appellant a choice to select the best of the competitors on a competitive price without prejudice to the quality of the work. Above all, it eliminates favourtism and discrimination in awarding public works to contractors. The contract is, therefore, awarded normally to the lowest tenderer which is in public interest. The principle of awarding contract to the lowest tenderer applies when all things are equal. It is equally in public interest as to adhere to the rules and conditions subject to which bids are invited. Merely because a bid is the lowest the requirement of compliance with the rules and conditions cannot be ignored. It is obvious that the bid of Respondents 1 to 4 is the lowest of bids offered. As the bid documents of Respondents 1 to 4 stand without correction there will be inherent inconsistency between the particulars given in the annexure and the total bid amount, it (sic they) cannot be directed to be considered along with the other bids on the sole ground of being the lowest.” (Emphasis supplied) 527. A challenge to the cancellation of an entire tender came up for consideration before the Supreme Court in the judgment reported at (2007) 2 SCC 588, Ramchandra Murarilal Bhattad v. State of Maharashtra, wherein the court had laid down the following parameters. “49............ While exercising its jurisdiction of judicial review, the Court is required to decide the cases before it, keeping the well known principles therefor in mind and having regard to the fact situation obtaining therein. No hard and fast rule can be laid down therefor. Recently, in Noble Resources Ltd. Vs. State of Orissa and 212 LPA No.53/2020 & connected appeals Page 212 Anr. [2006 (9) SCALE 181] this Court has noticed the power of judicial review vis-a-vis contractual disputes, opining : “28. Although terms of the invitation to tender may not be open to judicial scrutiny, but the courts can scrutinize the award of contract by the Government or its agencies in exercise of their power of judicial review to prevent arbitrariness or favouritism. [See Directorate of Education and Ors. V. Educomp Datamatics Ltd. And Ors. 2004 (4) SCC 19]. However, the court may refuse to exercise its jurisdiction, if it does not involve any public interest. 29. Although the scope of judicial review or the development of law in this field has been noticed hereinbefore particularly in the light of the decision of this Court in ABL International Ltd. (supra), each case, however, must be decided on its own facts. Public interest as noticed hereinbefore, may be one of the factors to exercise power of judicial review. In a case where a public law element is involved, judicial review may be permissible.” xxxxx 51. The expansive role of Courts in exercising its power of judicial review is not in dispute. But as indicated hereinbefore, each case must be decided on its own facts. xxxxx” “10. In recent times, judicial review of administrative action has become expansive and is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded. State activity too is becoming fast pervasive. As the State has descended into the commercial field and giant public sector undertakings have grown up, the stake of the public exchequer is also large justifying larger social audit, judicial control and review by 213 LPA No.53/2020 & connected appeals Page 213 opening of the public gaze; these necessitate recording of reasons for executive actions including cases of rejection of highest offers. That very often involves large stakes and availability of reasons for action on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability. Looking for reasons in support of such action provides an opportunity for an objective review in appropriate cases both by the administrative superior and by the judicial process. The submission of Mr. Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communicated to the concerned parties unless there be any specific justification not to do so.” (Emphasis by us) 528. In Meerut Development Authority v. Assn. of Management Studies; (2009) 6 SCC 171, the decision related to disposal of public property by an instrumentality of the State and the rights of a person submitting a tender. In this context, the Court reiterated the essentiality of fairness and transparency in the process inter alia holding as follows: “26. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor 214 LPA No.53/2020 & connected appeals Page 214 made to suit the convenience of any particular person with a view to eliminate all others from participating in the biding process. 27. The bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. xxxxx 28. It is so well settled in law and needs no restatement at our hands that disposal of the public property by the State or its instrumentalities partake the character of a trust. The methods to be adopted for disposal of public property must be fair and transparent providing an opportunity to all the interested persons to participate in the process. 29. The authority has the right not to accept the highest bid and even to prefer a tender other than the highest bidder, if there exist good and sufficient reason, such as, the highest bid not representing the market price but there cannot be any doubt that the Authority's action in accepting or refusing the bid must be free from arbitrarinesses or favouritism.” (Emphasis supplied) 529. On the issue of fairness in procedure to maximize public interest, we may also usefully refer to the pronouncement of the Supreme Court reported at (1993) 1 SCC 71, Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries in which it was held that even the highest bid can be ignored. In this case, Food Corporation of India (FCI) and instrumentalities of the State invited tenders for stock of damaged food grains in accordance with the terms and conditions contained in the tender notice. The respondents’ bid was highest. But the appellant being not satisfied about the adequacy of the amount offered in the highest tender, instead of accepting any of tenders received by it, invited all the tenderers to 215 LPA No.53/2020 & connected appeals Page 215 participate in negotiations. The respondent refused to revise the rate offered in its tender. In the negotiations, FCI was offered an excess amount of Rs.20 lakhs. The respondents filed a writ petition challenging FCI’s refusal to accept the tender submitted by it contending that FCI having chosen to invite tenders, it could not dispose of the stocks of damaged food grains by subsequent negotiations rejecting the highest tender on the ground that the action was arbitrary and violative of Article 14. The High Court had accepted the challenge. 530. The Supreme Court overturned the High Court decision and held that the State and all its instrumentalities have to conform to Article 14 and that there is no unfettered discretion in public law. It was held that the public authority possessed powers only to be used for public good which imposed the duty to act fairly and to adopt a procedure which is fair play in action. To satisfy the requirement of non arbitrariness in State action, it is necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a case where such decision could be exposed to challenge on the ground of arbitrariness. The requirement of due consideration of legitimate expectation also forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. 531. So far as the view of the authorities regarding adequacy of the price offered by a tenderer, the claim of the highest tenderer and the challenge to the negotiations with the other tenderers is concerned, in para 10 of the judgment, the Supreme Court upheld the action of the procedure adopted by FCI observing as follows: 216 LPA No.53/2020 & connected appeals Page 216 “10. From the above, it is clear that even though the highest tenderer can claim no right to have his tender accepted, there being a power while inviting tenders to reject all the tenders, yet the power to reject all the tenders cannot be exercised arbitrarily and must depend for its validity on the existence of cogent reasons for such action. The object of inviting tenders for disposal of a commodity is to procure the highest price while giving equal opportunity to all the intending bidders to compete. Procuring the highest price for the commodity is undoubtedly in public interest since the amount so collected goes to the public fund. Accordingly, inadequacy of the price offered in the highest tender would be a cogent ground for negotiating with the tenderers giving them equal opportunity to revise their bids with a view to obtain the highest available price. The inadequacy may be for several reasons known in the commercial field. Inadequacy of the price quoted in the highest tender would be a question of fact in each case. Retaining the option to accept the highest tender, in case the negotiations do not yield a significantly higher offer would be fair to the tenderers besides protecting the public interest. A procedure wherein resort is had to negotiations with the tenderers for obtaining a significantly higher bid during the period when the offers in the tenders remain open for acceptance and rejection of the tenders only in the event of a significant higher bid being obtained during negotiations would ordinarily satisfy this requirement. This procedure involves giving due weight to the legitimate expectation of the highest bidder to have his tender accepted unless outbid by a higher offer, in which case acceptance of the highest offer within the time the offers remain open would be a reasonable exercise power for public good.” (Emphasis supplied) 532. The Supreme Court has also had occasion to examine a challenge to the relaxation of the eligibility criteria in the case reported at (1999) 1 SCC 492, Raunaq International Ltd. V. I.V.R. Construction Ltd. And others. The Court 217 LPA No.53/2020 & connected appeals Page 217 noted that the challenger I.V.R. Construction Ltd also did not fulfill the qualifying criteria. So far as award of contract by both private and public bodies are concerned, the Supreme Court had considered the paramount considerations in Para 9 in the following terms. “9. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are of paramount importance are commercial considerations. These would be: (1) The price at which the other side is willing to do the work; (2) Whether the goods or services offered are of the requisite specifications; (3) Whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfill the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer, and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow up action, rectify defects or to give post contract services. Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction.” 218 LPA No.53/2020 & connected appeals Page 218 (Emphasis supplied) 533. In para 10, given the nature of the work involved in the case, the court expounded on what would constitute element of public interest observing as follows: “10. What are these elements of public interest? (1) Public money would be expended for the purposes of the contract; (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities. (3) The public would be directly interested in the timely fulfillment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in re- doing the entire work – thus involving larger outlays or public money and delaying the availability of services, facilities or goods. e.g. A delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation.” 534. On the issue as to whether the price offered should be the sole criteria for awarding a contract, in Raunaq International, the Supreme Court has made an important declaration of the binding principles when it stated as follows: “16. It is also necessary to remember that price may not always be the sole criterion for awarding a contract. Often when an evaluation committee of experts is appointed to evaluate offers, the expert committee’s special knowledge plays a decisive role in deciding which is the best offer. Price offered is only one of the criteria. The 219 LPA No.53/2020 & connected appeals Page 219 past record of the tenderers, the quality of the goods or services which are offered, assessing such quality on the basis of the past performance of the tenderer, its market reputation and so on, all play an important role in deciding to whom the contract should be awarded. At times, a higher price for a much better quality of work, can be legitimately paid in order to secure proper performance of the contract and good quality of work-which is as much in public interest as a low price. The court should not substitute its own decision for the decision of an expert evaluation committee.” (Emphasis supplied) 535. It is therefore well settled that public property has to be disposed of by a process that is open and transparent. The participants in the auction or tender process are entitled only to fair, equal and non-discriminatory treatment in evaluation of their offer. The award of the contract has to be tested on commercial considerations. Even the highest bidder/lowest tenderer cannot claim an absolute or exclusive right to award of the contract. The authority calling for bids/tenders is bound by the terms thereof. However, it has the discretion to cancel the process subject to its action not being motivated by malafide or ulterior motive. Its action should not be arbitrary or irrational or subject to Wednesbury unreasonableness. The cancellation of process should also be free from favouritism. The cancellation of the process could be the result of a change of policy and rejection of a bid or tender could be guided by larger concerns of public interest. 536. In the present case, we are concerned with distribution of a valuable natural resource and regulation of rights to exploit the same for commercial purposes. Undeniably the interests of the public at large, preservation of the resources and protection of the environment must override all individual interests emanating from a individual commercial profit motives. 220 LPA No.53/2020 & connected appeals Page 220 537. The above facts establish that Auctions by the e-mode are the most efficient, efficacious and transparent mode of award of contracts. An e-auction enables wide geographic participation by the most talented and experienced bidders, maximizes competition and ensures fetching of best rates enhancing public interest, and increasing revenues. Not a word has been addressed before us by the appellants assailing this decision of the respondents. The e-auction ensures widest possible circulation of the auction notice. The process is much faster than the physical auction. The platform of e-auction ensures lawful playing field to all the participants subjectivity in the evaluation of the bids is completely eliminated and selection of the best bidder is by objective process. The minimization of human interaction and interface eliminates subjective association. There can be no manner of doubt that the e-mode of conducting an auction is completely principle based, efficacious and most accessible inasmuch as participants do not have to physically travel to the place of auction and face no barriers. 538. The learned Single Judge has found that the respondents have held threadbare discussions and obtained reports from all relevant quarters; kept the pending litigation and interim directions issued in the case of Radha Krishan in their consideration and thereafter taken the informed decision to the effect that the provision in the Rules permitting grant of mining leases by open auction was required to be amended and competitive bidding should be invited by seeking e- auction only. The learned Single Judge has also considered the material before the authorities regarding possibility of cartelization and intimidation having laid down in the process of open auction and also the default by the bidders who had participated in the auctions and had failed to complete the formalities despite repeated opportunities. 221 LPA No.53/2020 & connected appeals Page 221 539. In this background, the learned Single Judge in para 68 of the impugned judgment has concluded that the decision to scrap the earlier auction of 2016/2017 and the policy decision to allot mining leases only by e-auction was the most potent, fair, transparent and viable mode of grant of public largess. Nothing has been pointed out to us which could enable this Court to take a contrary view. XVI Failure to issue notice to show cause-whether violation of principles of natural justice-impact on impugned decision. 540. All the appellants in the instant cases have assailed the action of the respondents for failing to abide by principles of natural justice on two pronged objections. We examine the first objection on behalf of the appellants that they were not put to notice regarding the action of the cancellation of the bids. In support of this submission, reliance is placed on the pronouncement of the Supreme Court reported at (2007) 2 SCC 181 (para 29), Rajesh Kumar and others v. Dy. CIT and others. 541. Let us first and foremost remind ourselves of the procedure which was required to be followed by the respondents. This procedure is laid down in the Jammu and Kashmir Minor Mineral Rules 1962 framed under legislative mandate. The terms and conditions for grant of mineral concession through auction are stipulated in Rule 55. Sub rule (7) of Rule 55 clearly mandates that on completion of the bid process i.e. fall of the hammer, the Chairman may ‘provisionally’ accept the highest bid offered and send his recommendations to the Director. As per sub rule (9) of Rule 55, once a bid is ‘provisionally’ accepted, the Director shall issue LoI to the bidder to complete the formalities as are required for grant of minor minerals under Rules within a period of six months. 222 LPA No.53/2020 & connected appeals Page 222 542. It is only after the formalities laid under Rule 26(9) and 55, have been completed in terms of Rule 55(9) that the bid would be finally accepted and the occasion for consideration of the application for grant of mining lease be arise. 543. So far as the disposal of the application for grant of mining lease is concerned, Rule 30 prescribes that the same shall be within twelve months from the date of its receipt. 544. It is Rule 31 which prescribes that the competent authority may refuse to grant any mining lease “subject to reasons to be recorded and communicated to the applicant in writing”’. Thus, the rules specifically prescribe both the stage at which and extent of compliance with the principles of natural justice. Under the Rules, it is only after the bidder has completed the formalities and pre-conditions, the bid has been finally accepted and consideration is being accorded for grant of mining lease, that reasons have to be recorded and communicated to the applicant in writing. 545. Significantly, and it is admitted before us that, the appellants failed to comply with the requirements of the LoI within the mandatory period of six months. 546. We have found that no authority had the power of extending the time for compliance of these conditions. Clearly, the stage of issuance of the notice to show cause and an opportunity to do so would have arisen only if the bidders had complied with the mandatory conditions under the LoI. 547. Is there substance, therefore, in the absolute proposition urged by the appellants that the respondents under all circumstances have to comply with the principles of natural justice? 223 LPA No.53/2020 & connected appeals Page 223 548. The principles on which these contentions must be examined are best stated in the words of Justice V. R. Krisha Iyer in the judgment reported at (1977) 2 SCC 256, The Chairman, Board of Mining Examination and Chief Inspector of Mines and another v. Ramjee when it was held as follows: “13. …….. Natural justice is no unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt — that is the conscience of the matter. 14. ……... But then we cannot look at law in the abstract or natural justice as a mere artifact. Nor can we fit into a rigid mould the concept of reasonable opportunity……….. 15. These general observations must be tested on the concrete facts of each case and every minuscule violation does not spell illegality. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.” (Emphasis by us) 549. We find that it is well settled that principles of natural justice do not mandatorily have to apply to every decision taken by the authorities. In the judgment of the Division Bench of High Court of Andhra Pradesh reported at AIR 1981 AP 165, Sri Rama Engineering Contractors v. Construction Engineer, Civil Engineering, Department of Space, Govt. of India, Sriharikota, Nellore and another, the tender submitted by the petitioner had been found to be lowest, 224 LPA No.53/2020 & connected appeals Page 224 yet the contract was awarded to the respondent No. 2 whose tender was above that of the petitioners. The court was called upon to consider the validity of the acceptance of a tender of the second respondent for construction of a group of houses for housing the employees of the space project and issuance of directions to the respondents to accept the petitioners tender. The petitioner had challenged this decision of the construction engineer inter alia on grounds of violation of principles of natural justice. The court observed as follows: “16. …..There is a practical reason also why rules of natural justice should not apply to the facts of this case. The petitioner was only one among several tenderers. His tender was rejected on the basis of his relative unsuitability. If principles of natural justice should apply to this case, notices should go to all the competing tenderers inviting their claims and objections. Their replies must be collected, collated and considered. Relative assessment of tenderers should be made. All that certainly means postponement of the decision by a few months to award the contract to build houses. This is a wholly unreasonable way of going about building houses and certainly not at all the way to build bridges. Natural justice applied to such situations would\" turn into a stumbling-block for the efficient and effective exercise of State power. Natural justice must be envisaged by the Courts as a canal through which State power may freely flow releasing its energy for the benefit of the citizens and not as a dam to hold it back. This time- consuming and self-defeating process would clearly rule out the applicability of principles of natural justice to the facts of this case. De Smith did say, \"clearly not every decision affecting individual interests has to be preceded by a priori notice and an opportunity to be heard.\" (see De Smith's Constitutional Law and Administrative Law, III Edition, page 566.)” (Emphasis by us) 225 LPA No.53/2020 & connected appeals Page 225 550. In (2007) 2 SCC 181 : Rajesh Kumar and others v. Dy. CIT and others, the Supreme Court has observed that exceptions to these rules are required to be provided for either expressly or by necessary implication. The Supreme Court has specifically observed that ‘while complying the principles of natural justice, the Court must bear in mind the theory of useless formality and the prejudice doctrine.’ 551. It is trite that principles of natural justice cannot be mechanically applied. In the judgment reported at AIR 1968 SC 851, Union of India and others v. P. K. Rao and others, the Supreme Court had ruled that “the extent of an application of the doctrine of natural justice cannot be imprisoned within the straitjacket of a rigid formality. The application of the doctrine depends on the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons effected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case.” 552. In this regard, we may also usefully advert to the pronouncement of the Supreme Court reported at (2006) 8 SCC 647, Punjab National Bank and others v. Manjeet Singh and anr. The case arose in a proceeding in which trade unions had participated. The decision ultimately reached by the Industrial Tribunal was assailed by individual workmen contending that they had not been made party to the reference and submitted that there was violation of principles of natural justice. This plea was rejected by the Supreme Court holding that: “17. In an industrial dispute referred by the Central Government which has an all-India implication, individual workmen cannot be made party to a reference. All of them are not expected to be heard. The unions representing them were impleaded as parties. They were heard. Not only were the said unions heard before the High Court, as 226 LPA No.53/2020 & connected appeals Page 226 noticed hereinbefore from a part of the judgment of the High Court, they had preferred appeals before this Court. Their contentions had been noticed by this Court. As the award was made in the presence of the unions, in our opinion, the contention of the respondents that the award was not binding on them cannot be accepted. The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principles of natural justice.” (Emphasis by us) 553. It is well settled that a judicial precedent has to be examined and applied in the context of the fact situation which was raised therein. Mr. F. A. Natnoo, ld. AAG, has relied on the pronouncement of the Supreme Court in (2004) 8 SCC 579 Petroleum Corporation Ltd. Vs. N. R. Vairamani & Others (para 9) and (2003) 11 SCC 584 Ashwar Kumar Singh Vs. UPSC (Para 10) in support of this submission. 554. One very important factor in the present case is that there is no dispute to any of the material facts. While the writ petitioners/appellants made no disclosure of facts in their writ petitions, they do not dispute the factual narration laid down by the respondents regarding their failure to complete the formalities as required under Rule 26(2) and Rule 55(9). 555. An exception to the requirement of compliance with the principles of natural justice stands drawn also where the facts (as in the present cases) are undisputed. 227 LPA No.53/2020 & connected appeals Page 227 556. We extract hereunder the binding principles of the law laid down by the Supreme Court reported at (1999) 6 SCC 237, M. C. Mehta v. Union of India hereafter. It was held in para 22 (Pages 246, 247) as follows: “More recently Lord Bingham has deprecated the ‘useless formality’ theory in R. v. Chief Constable of the Thames Valley Police Forces, ex p Cotton [1990 IRLR 344] by giving six reasons. (See also his article ‘Should Public Law Remedies be Discretionary?’, 1991 PL, p. 64.) A detailed and emphatic criticism of the ‘useless formality theory’ has been made much earlier in ‘Natural Justice, Substance or Shadow’ by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27-63) contending that Malloch [Malloch v. Aberdeen Corpn., (1971) 1 WLR 1578 : (1971) 2 All ER 1278 (HL)] and Glynn [Glynn v. Keele University, (1971) 1 WLR 487 : (1971) 2 All ER 89 (Ch D)] were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p. 323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that the court cannot prejudge what is to be decided by the decision-making authority. De Smith (5th Edn., 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a ‘real likelihood’ of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their ‘discretion’, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State 228 LPA No.53/2020 & connected appeals Page 228 Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364 : 1996 SCC (L&S) 717] , Rajendra Singh v. State of M.P. [(1996) 5 SCC 460] that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.” (Emphasis by us) 557. Again in (2005) 5 SCC 337, Viveka Nand Sethi v. Chairman, J&K Bank Ltd, it was held that when facts are admitted, an enquiry would be an empty formality. The principles of natural justice are thus required to be complied with in a case having regard to the fact situation obtaining therein. It cannot be applied in a vacuum without reference to the relevant fact and circumstances. 558. In the pronouncement of the Supreme Court reported at (2005) 3 SCC 409, Karnataka State Road Transport Corporation and another v. S. G. Kotturappa and another, also, it was held that the principle of natural justice are not required to be complied with if it will lead to compliance with an empty formality. 559. We note that apart from vehement submissions that there was no compliance with the principles of natural justice, the appellants before us have not been able to point out as to how the action or decision of the respondents could have been different if they had been granted a hearing. 560. For the reasons that the appellants had failed to comply with prescription of Rule 26(2) and Rule 55(9) and the LoI, the stage for consideration and acceptance of the bid had not even arisen. The appellants have not asserted any loss or prejudice on account of any act or omission on the part of the respondents. There is not the remotest suggestion that the process adopted or the decision taken is either 229 LPA No.53/2020 & connected appeals Page 229 malafide or that it is intended to favour someone. It is not appellants’ case that it is based irrelevant consideration or is contrary to any statutory provion. Given the material considered by the respondents, it cannot be said that the decision taken was arbitrary or irrational. On the contrary, the decision taken is in public interest. In taking the decision, the authorities have acted both reasonably and responsibly in the matter. 561. In similar facts as at present, in its judgment reported at (1996) 10 SCC 405, Rajasthan Cooperative Diary Federation Ltd v. Shri Maha Laxmi Mingrate Marketing Service Pt. Ltd and others, the Supreme Court also rejected the objection of the respondent regarding violation of principles of natural justice for the reason that no prefixation hearing was given. In this regard, in para 7, the Supreme Court held as follows: “7. The High Court was also not right in importing the doctrine of audi alteram partem in these circumstances. If the conduct of respondent No.1 was such that it did not inspire any confidence in the appellant, the appellant was entitled to decline entering into any legal relationship with respondent No.1 as its selling agent. The Letter of Intent merely expressed an intention to enter into a contract. If the conditions stipulated in the Letter of Intent were not fulfilled by respondent No. 1 and if the conduct of respondent No.1 was otherwise not such as would generate confidence, the appellant was entitled to withdraw the Letter of Intent. There was no binding legal relationship between the appellant and respondent No. 1 at this stage and the appellant was entitled to look at the totality of circumstances in deciding whether to enter into a binding contract with respondent No 1 or not.” (Emphasis supplied) 230 LPA No.53/2020 & connected appeals Page 230 562. We may usefully advert to the judgment of the Supreme Court reported at (2016) 6 SCC 408 : Centre for Public Interest Litigation v. Union of India (para 21) which has been placed before us by Mr F. A. Natnoo, learned AAG. In para 21 of this judgment, the Supreme Court held thus: “41. The power of judicial review of the executive and legislative action must be kept within the bounds of constitutional scheme so that there may not be any occasion to entertain misgivings about the role of judiciary in outstepping its limit by unwarranted judicial activism being very often talked of in these days. The democratic set-up to which the polity is so deeply committed cannot function properly unless each of the three organs appreciate the need for mutual respect and supremacy in their respective fields.’ xxxxxxxx 138. However, we hasten to add and do not wish to be misunderstood so as to infer that howsoever gross or abusive may be an administrative action or a decision which is writ large on a particular activity at the instance of the State or any other authority connected with it, the Court should remain a passive, inactive and a silent spectator. What is sought to be emphasised is that there has to be a boundary line or the proverbial “laxman rekha” while examining the correctness of an administrative decision taken by the State or a central authority after due deliberation and diligence which do not reflect arbitrariness or illegality in its decision and execution. If such equilibrium in the matter of governance gets disturbed, development is bound to be slowed down and disturbed specially in an age of economic liberalisation wherein global players are also involved as per policy decision.” (Emphasis by us) 563. The situation before us is akin to consideration of tenders for construction contracts wherein preconditions for eligibility are laid down and technical and financial bids are invited. It is only if a tenderer satisfies the eligibility conditions, his technical bid is evaluated and, if found feasible, that the authority inviting tenders proceeds to examine the tenderers’ financial bids. If a person fails at either of the previous stages, there would be no question of considering his financial bids. 231 LPA No.53/2020 & connected appeals Page 231 564. Similarly in the present case, upon failing to comply with the essential conditions laid down in the Rules, notified in the notices of auction and reiterated in the LoI, would the bidder be entitled to consideration of his offer? Having failed to comply with the preconditions, the issues and stage for consideration of the applications of the appellants did not arise. There was, therefore, also no need to follow the procedure prescribed under the Rule 31. 565. Furthermore, as no bid had been finally accepted, there was no occasion for cancellation thereof. The violations also being admitted, there was no requirement to issue notice to show cause or grant hearing to the appellants. In this background, to insist upon compliance of principles of natural justice despite the admitted breach by the appellants, would really be in the nature of requiring compliance of a useless and empty formality. 566. In this regard, we may note the view taken by the Supreme Court in (2016) 4 SCC 716 : State of Uttar Pradesh v. AL Faheem Meetex P Ltd, wherein the court was examining a challenge to a similar cancellation of the bidding process before award of the contract. The Supreme Court held that inasmuch as there was no acceptance of bid of the appellant by the competent authority, the decision making process had not reached finality. Therefore, there was no requirement of issuing notice to the appellant. It is the same position in the case in hand. 567. In the facts of the present cases, we are, therefore, unable to hold that the action of the respondents was bad for the reason that there was violation of principles of natural justice as the requirement of issuance of notice was not complied with by the respondents inviting interference by us. 232 LPA No.53/2020 & connected appeals Page 232 XVII Failure to give reasons-non compliance with principles of natural justice- whether impacts present cases 568. The second objection of violation of principles of natural justice is premised on the requirement of giving reasons for the impugned order. The submission is that respondents have violated this requirement. 569. Elaborate arguments have been made by Mr. Z. A. Shah, Mr. Altaf Naik, Mr. P. N. Raina, ld. Senior Counsels, as well as Mr. Abhinav Sharma, Mr. Vikram Sharma and Mr. Hakim Suhail Ishtiyaq, Advocates that the respondents were required to record reasons and communicate them to the bidders in writing under Rule 31 before rejecting the highest bids. 570. Mr Z.A. Shah, learned senior counsel has placed reliance on the pronouncement of the Supreme Court in AIR 1952 SC 16 Commissioner of Police vs. Gordhan Dass Bhanji to contend that the orders scrapping of auction was not passed by the competent authority. 571. It has further been submitted by Mr Z. A. Shah, learned Senior Counsel that upon scrapping of the auction by the order dated 26th February 2019, a consequential order under Rule 31 refusing the mining lease to the bidders by the Competent Authority i.e., Director was mandatorily required. 572. In this regard, Mr. Z. A. Shah, Senior Advocate has placed reliance on the pronouncement of the Supreme court reported at (1990) 3 SCC 280 (paras 9 & 10), Star Enterprises v. City and Industrial Development Corporation of Maharashtra Ltd. 573. Mr Abhinav Sharma ld. Counsel has placed reliance on the judgment of the Supreme Court reported at AIR 1976 SC 789 (para 18) Hukum Chand Shyam Lal vs. Union of India & Ors. in support of his submission that once a statute requires something to be done in a particular manner or mode, it has to be done in that mode 233 LPA No.53/2020 & connected appeals Page 233 or not at all. The submission is that in the instant case, under Rule 42, only the Director, Geology was the competent authority to pass the orders in the present case. 574. There can be no dispute at all with the well settled principle that once a statute requires a thing to be done in a particular manner, it has to be done in that manner or not at all. However, in the instant case, the stage for consideration of the applications under Section 31 did not reach as the appellants and bidders failed to comply with the requirements of the Rules and as communicated in the LoI’s issued to them. 575. It has been additionally urged by Mr Vikram Sharma that in the present case, the order dated 26th February, 2019 only says that the auction was “scrapped” and that this was impermissible. In support of his submission, Mr Sharma has placed reliance on the pronouncement of the Supreme Court reported at AIR 1991 SC 537 : Kumari Shri Lekha Vidyarthi & Ors. V. State of U.P. & Ors. 576. Mr Vikram Sharma, ld. counsel, has contended that under Rule 42, the authority to grant mining lease for areas upto 10 hectares has been designated as the Director. It is urged that, in the instant cases, only the director as the competent authority could have refused to grant the mining lease that too, strictly in accordance with Rule 31. It is pointed out that the letter dated 7th February, 2019 which was issued by the Director. Mr. Sharma, contends that the letter dated 26th February, 2019 has been issued by an officer of the designation of Under Secretary and not the Director. A similar objection (as in the present case) was taken in (2007) 2 SCC 588 Ramchandra Murarilal Bhattad v. State of Maharashtra, that the cancellation of tenders was effected by the Govt. whereas the Commissioner was the competent 234 LPA No.53/2020 & connected appeals Page 234 authority. We extract hereunder the illuminating factual observations in this case which read thus: “55. Lastly, it was urged that the petition is incompetent because the provisions of section 46 of the Specific Relief Act have not been complied with, namely, the petitioner has not shown that he made a demand for justice and that it was denied. 56. The demand and denial which section 46 requires are matters of substance and not of form. In our opinion, there was a substantial demand here and it is clear that there was a denial. Soon after the order of cancellation was intimated to the petitioner he instructed his solicitors to write to the Commissioner and enquire why the permission granted had been so arbitrarily cancelled. This was on the 18th November, 1947. The reply dated 3/4th December, 1947, was that the cancellation was under the orders of Government and that they should be approached in the matter. Government was approached. The petitioner's solicitors wrote to the Home Minister on the 9th December, 1947, and said :- \"Our client has not been informed of any reasons which had moved the Government to direct the cancellation of the permission. Our client was really entitled to be heard in the matter...Our client desires to present his case before you and he shall feel obliged if you give him an interview...\" 57. The Secretary to the Home Department replied on the 12th of January, 1948, that the Commissioner was directed to cancel the permission in view of numerous protests which Government received. This was replied to on the 16th of February, 1948, and the petitioner's solicitors said :- \"Our client feels that he has not been treated fairly and that justice has been denied to him.\" 58. The only reply to this was :- 235 LPA No.53/2020 & connected appeals Page 235 \"I am directed to inform you that Government does not wish to add anything to the reply already given to you.\" 59. The correspondence read as a whole contains a clear demand for justice and a denial. It is true the actual demand was not made to the Commissioner nor was the denial by him but he clearly washed his hands of the matter by his letter of the 3rd/4th December, 1947, and referred the petitioner to Government under whose orders he said he was acting. The demand made to Government and the denial by them were therefore in substance a demand made to the Commissioner and a denial by him.” (Emphasis by us) 577. We have held in the present case above that the stage for cancellation of the bids of the appellants did not reach, and hence no decision was required even if it was so, the decision was by an authority higher than the director, only communicated by a subordinate and cannot be invalidity on the ground of competency. 578. Mr Vikram Sharma has further contended that upon royalty being charged from the appellant, the LoI had taken the character of lease and that its termination could only be on satisfaction of stipulations contained in sub-rule 15, 16, 17 and 19 of Rule 38. 579. Mr F. A. Natnoo, learned AAG, has submitted that the reliance placed by Mr P. N. Raina, ld. senior counsel, on Rules 6, 13 and 38 is completely misconceived. Mr Raina has relied on Rule 38(XVI) which refers to “breach on the part of the lessee”. Mr Natnoo has emphasized the fact that appellants are not lessees before this Court and, therefore, the Rule has no application. 580. Rule 38 stipulates the “Conditions of the Lease” and is placed in Chapter IV captioned “Grant of Mining Lease” and contains Rules 26 to 42-a. We have noted 236 LPA No.53/2020 & connected appeals Page 236 that the appellants have failed to comply with rule 26. Thereafter the appellants had to complete requirements under Rule 27 (procedure for grant of mining lease which includes a deposit of Rs.50,000/-) and Rule 36 (which requires deposit of the security deposit). Execution of the lease requires compliance with Rule 40. Admittedly, the stage for these did not arrive as the appellants failed to complete the pre-conditions under Rules’ 26 and 55. In the instant case, the appellants therefore could not be considered for grant of lease and no leases have been executed in their favour. As such, Rule 38 has no application at all. 581. Let us examine the principles laid down by the Supreme Court in judicial precedents on the essentiality of recording reasons for administrative and executive orders and actions as well as the contours of such requirement. In the judgment reported at (1990) 3 SCC 280, Star Enterprises & Ors. vs. City and Industrial Development Corporation of Maharashtra & Ors, relied upon by Mr. Shah, ld. Senior Counsel, the court was called upon to examine the correctness of the action of the respondents in rejecting the highest offer received in response to an invitation to bid by a public authority. We find from a reading of para 5.8 of this pronouncement that in this case, the highest bid received had been rejected by the respondents. It was in this background that the Supreme Court had observed as follows: “5. It is not disputed that the scheme which is operating provides that \"respondent No. 1 reserves the right to amend, revoke or modify the scheme at its discretion as well as to reject any or all offers for allotment without assigning any reason.\" Obviously, it is in exercise of this power that the highest tenders have not been accepted. 8. The State is certainly entitled to look for the best deal in regard to its properties. This has been accepted by several decisions of this Court 237 LPA No.53/2020 & connected appeals Page 237 with reference to State action under the Excise Laws. There is no allegation of mala fides in the conduct of respondent no. 1 in refusing to accept the highest offer. We must, therefore, proceed on the footing that respondent no. 1 acted bona fide and in refusing to accept the highest offers of the appellants in regard to specific plots has been actuated by the consideration of looking for better offers for the specific plot in the economic interests of respondent no. 1. xxx 10. In recent times, judicial review of administrative action has become expansive and is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded. State activity too is becoming fast pervasive. As the State has descended into the commercial field and giant public sector undertakings have grown up, the stake of the public exchequer is also large justifying larger social audit, judicial control and review by opening of the public gaze; these necessitate recording of reasons for executive actions including cases of rejection of highest offers. That very often involves large stakes and availability of reasons for actions on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability. Looking for reasons in support of such action provides an opportunity for an objective review in appropriate cases both by the administrative superior and by the judicial process. The submission of Mr Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communicated to the concerned parties unless there be any specific justification not to do so.” (Emphasis by us) In the instant case, the Rules do not prescribe any procedure for a decision for cancellation of an entire auction. Given the breaches of the Rules, we have held 238 LPA No.53/2020 & connected appeals Page 238 Government did not have to record a specific order in this regard. The judgment in Commissioner of Police v. Gordhan Dass Ghaaji has therefore no application in the present case. 582. In Ramchandra Murarilal Bhattad also, the Supreme Court had observed that the individual tender of the appellant had not been rejected but all tenders had been cancelled and that, for the reason that there was change in policy, no reason for the cancellation was required to be given. 583. So far as the decision of the respondents to amend the Rules and to incorporate the requirement of conducting auctions of mining leases by e- mode is concerned, the same was in the nature of a policy decision and stands taken by the competent authorities. The appellants do not challenge the authority of the respondents to amend the rules or the competency of the authority to take the decision to do so. This objection is therefore untenable and of no consequences. 584. There can be no dispute at all with the well settled proposition that when the authority, administrative or quasi judicial adjudicates on a dispute and if its order is appealable or subject to judicial review, it would be necessary to spell out the reasons thereof. Furthermore, if as a result of action on the part of the statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. Such occasion has not risen in the present cases. 585. In the present cases, after failure of the bidders to comply with the terms of the LoI and the requirement of the rules, the bids of 2016 and 2017 were non- est and of no consequence and effect. The bidders had no surviving right whatsoever pursuant to the provisional acceptance of the bids. The occasion for consideration of the bids of the appellants for final acceptance and for grant of mining lease by 239 LPA No.53/2020 & connected appeals Page 239 the Director (the authority designated under Rule 42 to grant the mining lease) or passing of order therefore under Rule 31 never arose. As such, the appellants have not been deprived of any right under Rule 85 or the statutory remedy of appeal prescribed thereunder. Since the bids had not received final acceptance, no separate orders for cancellation of the individuals bids were necessary. 586. This fact, coupled with the respondent’s estimation that the reserve price was not optimum and finding suggestion of cartelization in the auctions, the authorities scrapped the auctions in their entirety. It is noteworthy that this was communicated by the letter dated 26th February, 2020. A policy decision was taken to maximize public interest by holding e-auctions only in the future. There is no case where the highest offer stands overlooked or rejected or there is refusal to accept a lower bid. In this background the requirement of recording reasons for rejecting the highest bids did not arise. 587. For these very reasons, the reliance placed on the pronouncement reported at (2007) 2 SCC 181, Rajesh Kumar and others v. Dy. CIT and others in support of the contention that the basic principle of natural justice being the recognition of a duty to assign reasons, having been violated in the present case, is misconceived. 588. Inasmuch as the auction as a whole was being scrapped and a new policy being put in place, no reason individually was required to be assigned. 589. The plea that the action of respondents is liable to be quashed for the reason that no reasons were given for rejection of the bids and the principles of natural justice therefore violated, is misconceived and hereby rejected. 240 LPA No.53/2020 & connected appeals Page 240 XVIII Whether any Remedial steps with regard to the illegal mining- cost of reparation and compensation- quantification and apportionment of liability? 590. The instant case reveals glaring illegalities, non compliance with judgments of the Supreme Court, directions of the NGT and violations of the law committed with absolute impunity. The matter could have ended with dismissal of the appeals. However, what is not condonable is the fact that public and national minor mineral resources stand ruthlessly exploited for commercial profits by a group of bidders without any compunction. Can we overlook such illegalities? 591. The present appeals arise out of the refusal to exercise extraordinary writ jurisdiction under Article 226 of the Constitution of India read with Section 103 of The Jammu & Kashmir Constitution, by the learned Single Judge in favour of the appellants. 592. The Supreme Court of India had occasion to rule on the the power of the High Courts in exercise of extra ordinary writ jurisdiction under Article 226 of the Constitution of India in the judgment reported at AIR 1966 SC 81 Dwarka Nath Vs. Inicome Tax Officer, Sspecial Circle in the following terms: “4………This article is couched in comprehensive phraseology and it ex facie confers a wide power on the high court to reach injustice wherever it is found. The constitution designedly used a wide language in describing the nature of the power, the purposes for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression \"nature\", for the said expression does not equate the writs that can be issued in India with the those in England, but only draws in analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. xxxxxxxxx\" (Emphasis supplied) 241 LPA No.53/2020 & connected appeals Page 241 593. While considering the permissibility of a writ court examining proportionality/ penalty imposed on a person in disciplinary proceedings, in the judgment reported at (1995) 6 SCC 749 B. C. Chaturvedi v. Union of India and others, we find an illuminating illucidation of the power of the High Court to do complete justice in the concurring judgment of Hansaria, J, who had observed as follows: “21. I am in respepctful agreement with all the conclusions reached by learned brother Ramaswamy, J. This concurring note is to express my view on two facets the case. The first of these relates to the power of the High Court to do \"complete justice\", which power has been invoked in some cases by this Court to alter the punishment/penalty where the one awarded has been regarded as dispropotionate, but denied to the High Courts. No doubt, Article 142 of the Constitution has specifically conferred the power of doing complete justice on this Court, to achieve which result it may pass such decree or order as deemed necessary; it would be wrong to think that other courts are not to do complete justice between the parties. xxxxxxxxx 23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh's case, AIR 1963 SC 1909, that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. of course, this power is not 242 LPA No.53/2020 & connected appeals Page 242 as wide which this Court has under Article 142. That, however, is a different matter. xxxxx 26. I had expressed my unhappiness qua the first facet of the case, as Chief Justice of the Orissa High Court in paras 20 and 21 of Krishna Chandra v. Union of India, AIR 1992 Orissa 261 (FB), by asking why the power of doing complete justice has been denied to the High Courts ? I feel happy that I have been able to state, as a Judge of the Apex Court, that the High Courts too are to do complete justice. This is also the result of what has been held in the leading judgment.” (Emphasis supplied) 594. The principles laid down in the Dwarka Nath were reiterated in the judgment reported at (1989) 2 SCC 691 Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Ors., Vs. V.R. Rudani and others. 595. It is, therefore, well settled that this court hearing appeals in its writ jurisdiction is adequately empowered to mould reliefs to do complete justice. In fact, we are duty bound to ensure that law is complied with. We have noted above, the law laid down by the NGT and its directions which are binding on all persons. 596. Jammu & Kashmir has seen some of the worst natural disasters in the recent times. While the earthquake in Uri in 2005 would be a natural disaster, the drastic consequences of the flooding of 2014 in Kashmir and of River Tavi in Jammu as well as its causes are still alive in the minds of the people. Despite the deep concerns with regard to the impact and consequences of unregulated extraction of minor minerals along rivers are engaging the attention of the Supreme Court of India and are under the continuous monitoring by the NGT, illegal mining of 243 LPA No.53/2020 & connected appeals Page 243 minor minerals and sand quarrying activities are rampant and continuing with impunity in Jammu and Kashmir. The irreversible damage and impact on the environment as well as the implications thereof to society at large clearly visisble and are in public domain. 597. The NGT is closely monitoring the action taken by the various States and Union Territories, with regard to the illegal sand, mining from the river beds,the lead case being OA No. 360/2015, National Green Tribunal Bar Association v. Virendra Singh (State of Gujarat) and the connected petitions. 598. The drastic impact of unregulated river bed mining in West Bengal noted by the NGT in its order dated 15th April, 2019 in OA 360/2015 NGT Bar Association v. Virendra Singh is extracted below: 11. When the State holds a resource that is freely available for the use of public, it provides for a high degree of judicial scrutiny on any action of the State in dealing with the subject in a prudent manner. It is the duty of the State to provide complete protection to the natural resources as a trustee of the public at large. Moreover, a policy to give free sand must be justified as a welfare measure but even this consideration cannot justify unregulated and unscientific mining unmindful of impact on environment. If in the course of mining, damage is caused, cost of the same must be recovered from such violators. In any case, the authorities cannot avoid their duty under the environmental law to prevent and restore the damage which is an inalienable duty of the State. Sudarsan Das v. State of West Bengal Vide order dated 04.09.2018 in O.A No. 173/2018, Sudarsan Das v. State of West Bengal & Ors, the Tribunal considered the issue of unchecked mechanised sand mining on the banks of river Subarnarekha by use of suction pumps, earth movers and netting in an area falling under Jaleshwar Tehsil, Balasore District, Odisha on the Odisha – West Bengal Boarder area and neighbouring 244 LPA No.53/2020 & connected appeals Page 244 district of West Medinapur in the State of West Bengal. The mining was being done by a method whereby ground water is allowed to seep into excavation of 40 to 50 feet beneath the river and collected in sumps and pumped away for disposal. No environmental clearance had been taken nor consent taken from the Pollution Control Board. This was impacting the ecology of the river including its channel geometry, bed elevation, substratum composition and stability, instream roughness of the bed, flow velocity, discharge capacity, sediment transpiration capacity, turbidity, temperature, etc. Such indiscriminate mining was the cause of the river Subarnarekha changing its course every year and made susceptible to flooding during every monsoon, threatening the safety of the villages situated along the river bank due to the banks being severely eroded in villages Rajnagar, Mankia, Kanrpur, Totapada, Beherasahi and Praharajpur. The authorities confirmed that illegal mining was taking place at large scale without any Environmental Clearance under the Environment (Protection) Act, 1986 or Consent under the Water (Prevention and Control of Pollution) Act, 1974 or the Air (Prevention and Control of Pollution) Act, 1981. Sustainable Sand Mining and Management Guidelines, 2016 were also not being followed. There was adverse impact on the ecology. No Management Plan was prepared for replenishment of preventive steps. Safeguards suggested in the report of High-powered Committee in September, 201612 were also not been adopted.” (Emphasis supplied) 599. Can these illegal activities be permitted to continue without consequence of reparation and compensation for the illegal mining? The observations made by the Tribunal in its order dated 5th April, 2019 in O.A. No.360/2015 National Green Tribunal Bar Association v. Virender Singh (State of Gujarat) in this regard deserve to be considered in extenso and read thus: 245 LPA No.53/2020 & connected appeals Page 245 “6. The grievance before the Tribunal is that the river bed mining was taking place at several locations in violation of judgment of the Hon’ble Supreme Court either without any valid lease or under leases given without following the strict regulatory regime in terms of judgment of the Hon’ble Supreme Court or in violation of lease conditions. Proceedings before NGT 7. This Tribunal passed several orders in the present matter since 05.08.2013 to check illegal sand mining from the riverbeds without environmental clearance or in violation of terms of environmental clearance. The State of Uttar Pradesh was directed to frame a policy to check illegal sand mining. MoEF&CC was also directed to prepare comprehensive guideline on the subject. The Tribunal considered regulatory regime applicable in some of the States in the light of the judgment of the Hon’ble Supreme Court in Deepak Kumar (supra), including in the States of Uttar Pradesh, Haryana, Madhya Pradesh, Maharashtra, Karnataka, Gujarat, West Bengal and Odisha. The MoEF&CC issued Sustainable Sand Mining Guidelines 2016, vide notification dated 15.01.2016. Thereafter, further directions were issued by the Tribunal in the light of the report of the High-powered Committee. 8. Despite this the menace of illegal sand mining in India continues unabated. As per reports the sand business in India employs over 35 million people and is valued at well over $126 billion per annum. In the year 2015-2016, there were over 19,000 cases of illegal minor minerals including sand in the country. In Uttarakhand, a 115 years old bridge collapsed due to overloaded sand trucks. In Maharashtra, 26,628 cases of illegal sand mining were recorded in the year 2017. The State of Maharashtra has the highest number of cases of non- compliance of Sustainable Sand Mining Management Guidelines, 2016. The State of Kerala suffered hugely in 2004 Tsunami and 2018 floods which several report explain were aggravated by illegal sand extraction. The issue of illegal sand mining is also rampant in the 246 LPA No.53/2020 & connected appeals Page 246 states of Goa, Bihar, Tamil Nadu, Uttarakhand, Telangana, Jammu and Kashmir amidst others.” (Emphasis by us) In the light of the above facts, the NGT noted the duty of the State in protecting natural resources and recovery of damage from the violators in the following terms: 10. Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, water and forest have great importance to public as a whole and it is wholly unjustified to make them a subject of private ownership. The public trust doctrine enjoins upon the Governments to protect the resources for enjoyment of general public rather than to permit the use for private ownership of commercial purposes.” (Emphasis by us) 600. In Para 45 of the order dated 05th April 2019 in O. A. No. 360/2015 titled National Green Tribunal Bar Association v. Virender Singh (State of Gujarat) the NGT noted that the illegal sand mining in violation of the Sustainable Sand Mining Guidelines 2016 has been widely reported in several states including Jammu and Kashmir amongst others and that general directions may be necessary which would apply to other states facing the same issue. It also referred to an article published in ‘Daily Greater Kashmir’ which is available at https://greaterkashmir.com/article/news.aspx?storyid=309365&catid=2&mid =53&AspxAutoDetectCookiesSupport. 601. The NGT then considered measures which could be effective for preventing the illegal mining and quarrying among other remedial measures including 247 LPA No.53/2020 & connected appeals Page 247 recovery of compensation. In this regard in paras 51 and 52 (of the order dated 5th April, 2019), it was observed as follows: “51. We have found in the discussion above, particularly in paras 8 to 11, 20, 21, 23, 29, 32, 33, 36, 39, 41 and 43 with regard to factual position in various States that monitoring mechanism preventive and remedial measures is not effective and illegal sand mining is continuing. The same needs to be reviewed in the light of above discussion. The States may review monitoring mechanism in terms of several directions of the Tribunal and guidelines of MoEF&CC. As regards monetory compensation, the same has to be not only equal to cost of mined material and penalty to evade royalty but also to meet cost of restoration and NPV of eco services fore gone forever. Seizure of vehicles or other equipment may be dealt with as per rules and directions in Threat to life arising out of Coal Mining in South Garo Hills District (supra). Re (iv): Directions in Individual Cases Listed Today. For the discussion and observation hereinabove, case is made out for issuing directions following discussion on the subject. 52. In Sudarsan Das (supra) one of the directions was that the Chief Secretaries of West Bengal and Odisha will prepare a restoration plan in consultation with the Central Pollution Control Board (CPCB), Indian School of Mines, Dhanbad and the Respective State Pollution Control Boards (SPCBs). We are informed that Indian School of Mines, Dhanbad declined to comply with the 35 order. This may call for remedial action against defiance by the said institution. Order of this Tribunal is a decree of the Court and can be executed in the manner provided under Section 51 CPC by ordering civil imprisonment or adopting other norms. Violation of order of this Tribunal is also a criminal offence punishable by imprisonment and fine. The Head of the Department concerned is liable to be proceeded against. Thus, the Director Indian School of Mines, Dhanbad will have to be required to appear in person to explain why action be not taken for violation of order of this Tribunal. The State of 248 LPA No.53/2020 & connected appeals Page 248 West Bengal, Orissa, Punjab and Gujarat need to send further action taken reports by 30.06.2019.” (Emphasis by us) 602. The NGT had further considered optimum scale of compensation in paras 55 to 57 of the order dated 5th April, 2019 in O. A. No. 360/2015 titled National Green Tribunal Bar Association v. Virender Singh (State of Gujarat) which reads as follows: “55. We have held that the scale of compensation proposed by the State of Gujarat does not fully comply with the ‘Polluter Pays’ principle which envisages that polluter is required to pay for complete restoration of the environment. This principle has been articulated further by the Hon’ble Supreme Court of India in T.N. Godavarma Thirumulpad vs Union of India & Ors, (2006) 1 SCC 1 in the context of forests. In this matter, the Hon’ble Supreme Court appointed a committee of experts and following directions were given: (i) To identify and define parameters (scientific, biometric and social) n the basis of which each of the categories of values of forest land should be estimated. (ii) To formulate a practical methodology applicable to different biogeographical zones of India for estimation of the values in monetary terms in respect of each of the above categories of forest values. (iii) To illustratively apply this methodology to obtain actual numerical values for different forest types for each biogeographical zone in the country. (iv) To determine on the basis of established principles of public finance who should pay the costs of restoration and/or compensation with respect to each category of values or forests. (v) Which projects deserve to be exempted from payment of NPV.” 249 LPA No.53/2020 & connected appeals Page 249 56. Similar criteria may have to be taken into account for arriving at an appropriate scale of compensation. The compensation is to include not only the full value of the illegally mined material but also cost of restoration of environment as well as cost of ecological services foregone forever. It should be deterrent so as not to render such illegal activity profitable. In Sudarsan Das Vs. State of West Bengal & Ors. (supra), it was held that full value of the material, the cost of restoration and the NPV should form part of the compensation to be recovered. There has also to be action against the polluters and the erring officers. The vehicles or any other equipment used for illegal mining are required to be confiscated and to be released only on payment of atleast 50% of the showroom value as laid down in Original Application No.220(THC)/2012, Threat to life arising out of coal mining in South Garo Hills District v. State of Meghalaya & Ors. This scale can then apply for all States, as far as possible. 57. We consider it necessary to constitute a Committee comprising representatives of the MoEFF&CC, Central Pollution Board (CPCB), Indian Institute of Forest Management, Bhopal, Institute of Economic Growth Delhi and Madras School of Economics to prepare a scale of compensation, after including the above components which can then be adopted in whole of the country. The report may be furnished within three months to the Tribunal by email at ngt.filing@gmail.com. The nodal agency for compliance and coordination will be CPCB. The Committee may also take professional service of an expert/institution in the matter if it so desires.” (Emphasis by us) 603. On 5th April, 2019, the NGT thereafter summed up its time bound directions to the States including the erstwhile State of Jammu and Kashmir as follows: “58. We sum up our directions as follows: 250 LPA No.53/2020 & connected appeals Page 250 a) MoEF&CC may now take necessary steps in the matter in terms of order dated 04.09.2018 in Sudersan Das (supra) latest by June 30, 2019 and file compliance report by 15.07.2019, as already directed. b) The States of West Bengal, Gujarat, Karnataka, Maharashtra, Punjab, Uttar Pradesh, Haryana, Madhya Pradesh, Andhra Pradesh, Bihar, Uttarakhand, Jammu and Kashmir, Goa, Kerala, Telangana and Tamil Nadu and Himachal Pradesh may take steps in terms of orders dated 04.09.2018 in Sudarsan Das v. State of West Bengal & ors, 05.09.2018 in, 13.9.2018 in Mushtakeem v. MoEF&CC & Ors. and 16.01.2019 in Compliance of Municipal Solid Waste Management Rules, 2016. The Chief Secretaries may monitor and furnish reports as earlier directed. (c) The States of West Bengal, Gujarat, Karnataka, Maharashtra, Punjab, Uttar Pradesh, Haryana, Madhya Pradesh, Andhra Pradesh, Bihar, Uttarakhand, Jammu and Kashmir, Goa, Kerala, Telangana and Tamil Nadu and Himachal Pradesh may review monitoring mechanism in terms of directions of the Tribunal and guidelines of MoEF&CC. (d) The Director Indian School of Mines, Dhanbad may appear in person on 26.07.2019 to explain why action be not taken for violation of order of this Tribunal. (e) The State of West Bengal, Gujarat, Karnataka, Maharashtra, Punjab, Uttar Pradesh, Haryana, Madhya Pradesh, Andhra Pradesh, Bihar, Uttarakhand, Jammu and Kashmir, Goa, 39 Kerala, Telangana and Tamil Nadu and Himachal Pradesh may send further action taken reports by 30.06.2019. (f) The Committee in terms of para 59 above may furnish its report within three months to the Tribunal by email at ngt.filing@gmail.com.” (Emphasis by us) 604. In the above order, the NGT noted the amendment notification dated 15th January 2016 to the Environment Impact Assessment Notification, 2006.We find 251 LPA No.53/2020 & connected appeals Page 251 that, amongst others, the then State of J&K was directed to take steps in terms of the order dated 4th September 2018 in OA No. 173/2018 in Sudershan Das v. State of West Bengal and others; orders dated 5th September 2018 and 13th September 2018 in Mushtakeem v. MoEF&CC and Ors. in OA No. 44/2016 and the Chief Secretaries to monitor and furnish reports as earlier directed. The State of Jammu and Kashmir was directed to review its monitoring mechanism as well. 605. Our attention has been drawn to a further order dated 26th July 2019 passed in OA No.360/2015 National Green Tribunal Bar Association vs. Virendra Singh (State of Gujarat) & connected petitions (including those filed by Dr. Sarrabhaun, Bagali, Mushtakeen & Others). 606. It appears that no compliance report was filed by the State of Jammu and Kashmir as noted in the order dated 26th July 2019 and last opportunity was given by the NGT to file appropriate response. We have not been informed as what has happened to this matter thereafter. 607. The principles of law which are to guide measures for reparation; quantification of compensation and action for violations and illegal mining are absolutely unambiguous. They have been laid down in binding judicial precedents and the respondents have no choice in the matter of compliance with them. Despite this position, it is quite evident that nothing appears to have been done by the respondents in this regard. 608. Is there any statutory provision relating to compensation for environmental degradation? The legislature has empowered the NGT to order relief, compensation and restitution for environmental damages and pollution for victims in Sections 15 and 20 of the National Green Tribunal Act, 2010. Some guidance on the components of compensation and measures for restitution may be derived 252 LPA No.53/2020 & connected appeals Page 252 from the wisdom of the legislature. We, therefore, extract these provisions which read as follows: “15. Relief, compensation and restitution.—(1) The Tribunal may, by an order, provide,— (a) relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance); (b) for restitution of property damaged; (c) for restitution of the environment for such area or areas, as the Tribunal may think fit. (2) The relief and compensation and restitution of property and environment referred to in clauses (a), (b) and (c) of sub-section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991 (6 of 1991). (3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose: Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days. (4) The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit. (5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority. 253 LPA No.53/2020 & connected appeals Page 253 20. Tribunal to apply certain principles.—The Tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, the precautionary principle and the polluter pays principle.” (Emphasis by us) 609. Thus, the legislative guidance by way of Section 20 is extremely broad and the NGT is required to apply the principle of sustainable development, polluter pays principle and the precautionary principle while passing an award or order in favour of an applicant. The Tribunal is required to assess the environmental damage as well in a case while coping with the scientific uncertainty which is involved in this assessment. 610. Some guidance in the approach which is to be followed can be found in the judgment of the Supreme Court in Writ Petition (Civil) No.435/2012 : Goa Foundation v. Union of India. In this case, the court was considering an issue of determination of environmental damage caused on account of illegal mining activity in Goa. The Court was guided by the consideration of the issue that the mining could not be completely stopped due to its contribution towards employment and revenue generation for the State. The Supreme Court thus was concerned with an activity which was making a major contribution to the State’s revenue. It was, therefore, held that if mining had to continue, determining compensation on the basis of sale proceeds would be apt as it would directly affect the profitability of the project. In this case, the Supreme Court created a special purpose vehicle- “Goan Iron Ore Permanent Fund” for depositing the compensation. However, this cannot be an absolute principle in assessment of adequate compensation for the detriment and damage to the ecology and environment. 254 LPA No.53/2020 & connected appeals Page 254 611. As noted by the Supreme Court in Deepak Kumar, illegal mining has the effect of causing irreparable damage to the ecology. We also have instances of the NGT assessing “environmental penalty” equivalent to the percentage of 5% of the project cost. 612. While the contribution of the revenue towards the State has weighed with the Supreme Court while according consideration in Goa Foundaion case, however, in the case in hand, the damage is irreparable and also irreversible and extremely serious. An instance of similar damage was noted by the Supreme Court in the judgment reported at (2019) 8 SCC 177 : State of Meghalaya v. All Dimasa Students Union, Dima-Hasao District Committee. In this case illegal mining operations in the Jaintia Hills in the State of Meghalays had not only caused serious and irreparable damage to the ecology, water bodies including underwater plants and socio economic conditions of the concerned areas including of Dimal Hasao district of Assam but had also resulted in serious erosion/ corrosion of the machineries and equipment of the Kopili Hydro Power Project of the North Eastern Electric Power Corporation of India. The court, noticing that there was huge environmental degradation and pollution of the water in the State of Meghalaya, observed that serious steps were required to be taken for cleaning polluted water bodies. With these objectives, the court authorized the State Government to collect 10% of the market value of the coal in addition to the royalty payable to it. 613. The judgments of the Supreme Court and the orders of the NGT have also considered proportion of sale proceeds or the project cost as a measure of quantum of compensation and provide guidance on the parameters on which compensation in such cases could be evaluated. 255 LPA No.53/2020 & connected appeals Page 255 614. We find that even the legislature was sensitive to requirement of restoration and rehabilitation measures for the benefit of the community in and around the areas where mining activities are undertaken. Section 15A of the Act of 1957 was incorporated by amendment with effect from 12.01.2015 which empower the State Government to collect funds for District Mineral Foundation in case of minor minerals of the District in which mining operations are carried on. 615. We find that even the Government of Jammu & Kashmir was not ignorant about the possible need for such measures. The Rules of 2016 include Chapter X captioned ‘Mines and Minerals Development Restoration and Rehabiliation Fund.’ This postulates creation of a fund known as the Mines and Minerals Development, Restoration and Rehabilitation Fund (MMDRRF) under the administrative control of the Department to which rehabilitation charges payable under Section 15A of the Act shall be credited. Rule 73(i) incorporates the objective of funding of the restoration or rehabilitation works in the sites affected by mining operations. Under Rule 74, 10% of the royalty paid to the State shall be charged from the mineral concession holder in the nature of other charges for restoration and rehabilitation works and credited to the account payable to the Government. This amount under Rule 74(2) has to be remitted by the mineral concession holder along with royalty. We have no information before us as to whether payments were effected by the appellants or the other bidders who extracted the minerals as above. 616. An analysis of the judgments and orders on the subject shows that it is essential to determine compensation on a case by case basis so as to not only dis- incentivise the violator but enable protection of the environment and also its 256 LPA No.53/2020 & connected appeals Page 256 restoration wherever there has been significant illegal activity. We find that evaluation of the fair and necessary balance between the default and consequential liability of the defaulter in instances of environmental degradation is not an easy task. It depends on several indeterminate factors and imponderables. It is, therefore, necessary to undertake a scientific determination of the environmental damage before quantifying a fair compensation. 617. We have no manner of doubt that this Court lacks the expertise to quantify the environmental damage. 618. We also find that respondents have exhibited complete lack of will to abide by the judgment of the Supreme Court and the orders passed by the NGT or to enforce binding statutory provisions. 619. In the present case, the appellants not only used the shield of Rule 104A over the years, failed to follow the mandate of this rule and carried on with illegal mining activities. Even the limited information and record available before us, clearly speaks volumes about the commercial profits which have been derived by the appellants from the illegal activity. 620. The Ld. Single Judge has in para 74 of the impugned judgment noted the lack of material regarding the resultant environmental degradation on account of the illegal activities of the writ petitioners. 621. In view of the facts brought on record, it is essential for the respondents to effectively evaluate the cost of the illegal mining undertaken by the appellants after provisional acceptance of their bids pursuant to the auctions of 2016. Effective, imperative and scientific measures need to be scientifically taken by the respondents to determine damage, assess value, apportion liability and effect 257 LPA No.53/2020 & connected appeals Page 257 recovery thereof which act as a deterrant, discourage and bring illegal mining to a halt in the Union Territory of Jammu & Kashmir. XIX Writ petitions liable to be dismissed for suppressio veri 622. It is an elementary principle of law that every writ petitioner must make a complete and fair disclosure of all relevant facts. Failure to do so would tantamount to concealment of material facts. 623. Misjoinder of parties and non-joinder of necessary parties are also established procedural requirements. Every petition must ensure compliance with the above. 624. In the instant matters, wherein the appellants are aggrieved by the action of the respondents in cancelling an entire auction process, the factual details relating to the auction notice; terms and conditions of the auction; the details of the conditions stipulated in the LoI; the dates on which the writ petitioners took steps for compliance of the requirements and when the requirements were completed are material and essential facts necessary for complete and effective adjudication. Not a single writ petitioner has given these basic facts in totality. 625. We have had to undertake a close scrutiny of the counter affidavit of the respondents as well the official records to ascertain these essential facts. We have no doubt that the whole effort was to conceal material facts which went to the root of the matter and clearly disentitled the writ petitioners to grant of any relief. These writ petitioners deserved to be non-suited at the very threshold for concealment of necessary and material facts. 626. Mr F. A. Natnoo, ld. AAG, has placed the judicial precedent reported at (2012) 6 SCC 430 A Shanmugan Vs. Ariya Kshatriya Rajakula Vamsathu 258 LPA No.53/2020 & connected appeals Page 258 Madalaya Nandhavana Paripalanai, relying on the following observations of the court: “43.4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrong doer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice.” 627. Yet another circumstance which in our view is completely dishonest is the manner in which the writ petitions having multiple petitioners, each with separate facts, were joined as co-petitioners in single writ petitions. While one out of the many co-petitioners may have completed some of the requirements of the LoI, bidders who have not completed any of the requirements with utter impunity have been joined as co-petitioners. This is a deliberate and dishonest attempt to mislead the court into overlooking the defaults. 628. This is yet another circumstance which merited the writ petitioners to summary dismissals of the writ petitions. XX Whether the issuance of the Letter of Intent (LoI) resulted in grant of ‘quarrying licence’ or a ‘prospecting licence’ 629. As noted above, it has been vehemently contended by Mr Abhinav Sharma , ld. counsel in LPA No. 7/2020 that by the issuance of the LoI a ‘quarrying licence’ stood granted to the petitioners. Mr Abhinav Sharma has relied on the definitions contained in Section 3, (a), (c), (f), (g), and (ga) of the Mines and Minerals (Development & Regulation) Act, 1957. 259 LPA No.53/2020 & connected appeals Page 259 630. Ld. counsel submits that there is a distinction between a mining lease and a quarrying/prospecting licence as is evidenced from Rule 26. Before this court, it is contended by Mr. Abhinav Sharma that by issuance of the LoI, the appellant had been granted quarry licence in accordance with Rule 55(Lx). 631. On behalf of the appellant, it was also orally urged that with the issuance of the LoI, a ‘prospecting licence [under section 3(g)] stood granted to them. 632. Mr. Abhinav Sharma has adverted to Section 3(g)(a) of the Act which defines ‘prospecting licence cum mining lease’ to point out the difference between a prospecting licences and a mining lease which prescribes two stages, the first stage requiring undertaking prospecting operations which are followed by mining operations. Mr. Sharma, has also drawn our attention to the definition of prospecting operations in Section 3(h) of the Act. It is pointed out that under Section 7 of the Act, a ‘prospecting licence’ is granted for not more than three years. 633. Mr Altaf Naik, ld Senior Counsel appearing in LPA No. 61/2020 placed reliance on Sections 3, (g), (h) and section 7 of the Act and has contended that upon issuance of the LoI, a ‘prospecting licence’ stood granted to the appellants which licence, according to ld. Senior Counsel, could be terminated only in accordance with Section 4-A of the said Act. It is argued that there is no order of termination of the prospecting licence. 634. Mr F. A. Natnoo, ld. AAG, has emphasized that in SRO 105, there is nothing in the nature of a “prospecting licence”. 635. In order to deal with these submissions, it is essential to understand the difference between ‘prospecting’, ‘quarrying’ and ‘mining’. The second basic issue 260 LPA No.53/2020 & connected appeals Page 260 which has to be understood is the distinction between a ‘licence’ and a formal mining ‘lease’. 636. Mr Sunil Sethi, ld Senior Counsel who appears for the intervenors in these matters has drawn our attention to an important fact that there is no reference to ‘quarrying licence’ in the Act of 1957. A quarrying licence is for the first time mentioned in Rule 2 (LV) of SRO 105 of 2016 framed by the Government of Jammu and Kashmir which has been extracted above. Another important fact is that these rules do not refer to a ‘prospecting licence’. 637. The manner in which an application for a ‘quarrying licence’ has to be made, is provided under Rule 46. It is noteworthy that Rule 46 (4) requires that an application for grant of a quarrying licence must be accompanied by “the consent of owner or occupier of the applied area.” We therefore find substance in the submission of Mr Sethi that a quarrying licence envisages excavation of mining minerals in private lands. 638. On the other hand, ‘mining operations’ are defined in section 3(d) of the Act and mean any operations undertaken for the purposes of mining any material. A ‘mining lease’ is defined under Section 3 (c) and means a lease granted for the purposes of undertaking mining operation. 639. Mr Sethi has pointed out yet another distinction between grant of a ‘licence’ and a ‘lease’. It is pointed out that a ‘licence’ is granted only for the purposes of prospecting operations undertaken to identify and ascertain existence of minerals on a piece of land whereas a ‘lease’ confers specific rights for undertaking mining in identified areas. 640. This is supported by the provisions incorporated as Section 3 (g-a) of the 261 LPA No.53/2020 & connected appeals Page 261 Act which postulates a ‘prospecting licence cum mining lease’. This is defined as a two stage concession granted for the purpose of undertaking prospecting operations followed by mining operations. 641. It is important to note that again SRO 105 i.e., the Rules of 2016 do not make any reference to a ‘prospecting licence’. The explanation for this, as advanced before us, is that in the erstwhile Stae (now Union Terriory) of Jammu and Kashmir, prospecting is undertaken by the State only. There appears strength in this submission as well. 642. We also find differences in the manner in which a ‘quarrying licence’ is applied for and the manner in which a ‘mining lease’ are applied for. An application for a ‘mining lease’ in terms of Rule 28 has to be made in the model format prescribed as Form ML1. The acknowledgement for this application is in the format prescribed as form ML3. On the other hand, an application for grant /renewal of a quarrying licence under Rule 46 has to be made in the format prescribed as Form QL1. A mining lease deed is issued in Model Format prescribed in Form ML-10 under Rule 40(1). The proforma of the Quarrying Licence under Rule 48(ii) is in the format prescribed as Form QL2. 643. There are material differences in the essential requirements for the two as well. The legislature has put in stringent requirements in the nature of duly approved mining plan and EC under Rule 26 for grant of mining lease. As against this, for grant of a quarrying licence, under the proviso to Rule 43 in Chapter V, only an environmental management plan is needed. 644. It is undisputed that quarrying licences and mining leases fall under distinct categories of concessions under the Rules. Mr F. A. Natnoo, ld. AAG, has drawn our attention to Rule 45 which prescribes the period and area of a quarrying 262 LPA No.53/2020 & connected appeals Page 262 licence. Rule 45(2) prohibits grant of a quarrying licence to an area exceeding 05 hectares. 645. Let us now examine the argument of Mr Altaf Naik that on issuance of the LoI, a prospecting licence under Section 3(g) stood granted to the bidders including the appellant for the periods prescribed under Section 4 and 7. 646. In the submissions made in rejoinder to the arguments of Mr. F. A. Natnoo, learned AAG, yet another claim was projected. Placing reliance on Section 3(g) and 3(h) of Mines and Mineral Development Act, and Rule 6, it was contended by Mr. Naik that, till the lease was granted, the appellants were prospecting licencees. The submission was that if such licence has to be terminated, it has to be terminated in accordance with Section 4. Mr. Naik had also referred to the definition of prospecting licence as laid down in Section 4(a) and Section 7 of the Act. 647. This submission makes it necessary to understand as to what is entailed in “prospecting operations.” This is statutorily recognized under Section 3 (h) which provides that prospecting operations means “any operations undertaken for the purposes of exploring, locating, approving mineral deposits. Clearly, prospecting operations do not envisage mining activity. A prospecting operation is clearly a stage which is prior to undertaking mining operations as defined in Section 3 (d). 648. The appellants having applied for a mining lease cannot be heard to say that a prospecting licence under section 3 (g) for a period of three years (as per Section 7) stood issued which could be terminated. 649. We have extracted above, as a sample, one of the public notices issued by the respondents notifying the public of the scheduling of the public auctions for grant of mining leases. The appellants had participated in auctions for grant of 263 LPA No.53/2020 & connected appeals Page 263 mining leases in specified blocks. 650. The LoIs also clearly refer to the mandatory requirements under Rule 26(2) for grant of mining lease. The LoI notifies the appellant that it was issued under Rule 55(9), pertaining to mining leases, with the direction to submit approved mining plan, EC and deposit the balance 50% of the bid amount to enable grant of a mining lease. 651. The pleas pressed by Mr Altaf Naik, ld. Senior Counsel, Mr Abhinav Sharma, Advocate, are thus totally contrary to what was urged by the appellants before the Writ Court. In the writ petition filed by the appellants, wherefrom the instant appeal arises, the writ petitioners had clearly asserted that they had participated in auctions for grant of mining leases. The prayer clause relates to grant of mining lease. The appellants cannot be permitted to set up contrary pleas in appeal. 652. For the respondents, Mr. F. A. Natnoo, ld. AAG, has placed reliance on 2000(2) SCC 734: Modern Insulators Ltd. v. Oriental Insurance Co. Ltd. (para 10) ; (2006) 6 SCC 467 : Sanjay Kumar and others v. Narinder Verma and others (para 13); and (2010) 4 SCC 518 : State of Maharashtra v. Hindustan Construction Company Limited (Paras 36 and 37). It stands reiterated in these judgments that in an appeal, a party cannot bring new facts before the court. The appeal would be a continuation of the original proceeding. New grounds containing new facts cannot be introduced for the first time in an appeal. In view of the same, in the present case, no new facts are permitted to be placed. 653. It is important to note that a ‘quarrying licence’ is not synonymous with a ‘mining lease.’ Grant of a quarrying licence is also not an intermediate stage of consideration for grant and execution of a mining lease. 264 LPA No.53/2020 & connected appeals Page 264 654. A ‘prospecting licence’ also cannot be equated to a mining lease, for which the appellants had applied. 655. In this background, the oral submissions propounded on behalf of appellants in LPA No. 61/2020, that on issuance of LoI, the appellant stood granted a ‘prospecting licence’ and the submissions in LPA No. 7/2020 that the appellant stood granted ‘quarrying licence’ are completely misconceived, untenable and is rejected. XXI Whether any mining lease at all stands granted? 656. The respondents have informed that only three mining leases for minor minerals relating to District Kathua were granted under SRO 105. 657. We are informed that a mining lease was granted to one Sh. Mohan Paul Singh of Chandigarh, regarding the extraction of minor minerals in village Kediyan Gadiyal, District Kathua, vide an order bearing No. 2-DGM of 2016 dated 12th May, 2016. However, by an order dated 24th June, 2016, this lease was cancelled. It is reported that upon challenge of the cancellations by the grantee an interim order was issued by this Court (Jammu Wing) directing that the order dated 24th June, 2016 shall not be acted upon. 658. A second mining lease granted to Sh. Mohan Paul Singh by an order bearing No.01-DGM of 2016 dated 12th May, 2016 was also cancelled, operation whereof also stands stayed by this Court. 659. Unfortunately, we are neither given the details of the cases in which the interim order was passed; the status of the interim order or the main proceedings in which the order was passed. 265 LPA No.53/2020 & connected appeals Page 265 660. The third mining lease was granted to one Sh. Diyan Singh of Jammu for extraction of minor minerals in Mahi Chak (Ujh river) vide order No. 257-IND of 2017 dated 17th November, 2017, for a period of five years. This lease is stated to be operational. 661. It would thus appear that, over all these years, the process for grant of mining leases has been completed only in respect of one person. It is significant, however, that mining leases stands granted, establishes that it was not impossible for bidders to complete the process envisaged by the Rules and to obtain a mining lease. XXII Whether the Learned Single Judge has failed to consider the Rule 55 (10) of SRO 105? If so, effect thereof. 662. It has been contended by Mr Altaf Naik, ld Senior Counsel, that the consideration by the Ld. Single Judge stopped at consideration such of sub-rule 9 of Rule 55 of SRO 105and has erred in overlooking the sub-rule 10 thereof. This submission is to be also noted for the sake of rejection only. 663. Sub-Rule 10 of Rule 55 only states that the bid amount offered by the successful bidder shall be considered as “guarantee amount for grant of such mineral concession.” This provision would take effect only after compliance of Rule 55 (9) which reiterates the requirements on the bidder to complete the formalities including deposition of the remaining fifty percent of the bid amount required under rules within a period of six months from the issuance of the LoI. 664. That has not happened in these appeals, and it was completely unnecessary for the ld. Single Judge to consider Rule 55 (10). Sub-rule 10 of Rule 55 has no bearing or relevance so far as the prior stages of grant or execution of the mining lease is concerned. 266 LPA No.53/2020 & connected appeals Page 266 XXIII Refund of the bid amount-enitlement to in the facts of case 665. We find that in the Government files, reference is made to refund of the bid amount to the bidders. In para-76 of the impugned judgment dated 1st May, 2020, the ld. Single Judge has clarified that the judgment shall not come in the way of the petitioners or any person to claim refund of the bid amount or to sue the respondents in any appropriate proceedings for any loss or damage, if any suffered by the appellants, as may be permissible in law. 666. The appellants claim to have undertaken mining utilizing the shield of Rule 104A. The appellants have paid royalty at paltry rates to the respondents. Even if Rule 104A had to be worked, the appellants needed permission under Rule 104A from the respondents to do so. We have noted above the volume of the illegal extraction effected by these appellants and the quantum of commercial profits derived. Both the bidders nor the respondents have thus bothered to discharge their responsibility under law to the ecology. In the light of the clear directions in afore noted orders dated 5th April, 2019 and 26th July, 2019 passed by the NGT, the environmental degradation which has been caused by the appellants and the extent of commercial profits which the appellants have derived from the illegal mining activity, the appellants who are bound to compensate the State and ensure restoration of the environment to the condition it was before they undertook the illegal extraction of public resources without ECs and specific orders from the respondents. We are of the firm view that the payment by the bidders of the paltry amounts of royalty or its recipt by the respondents does not diminish the appellants liability to compensate and effect reparation for the illegal mining or detract from the illegality on the part of the respondents in extending the unfortunate Rule 104A. 267 LPA No.53/2020 & connected appeals Page 267 667. In para 55 of the order dated 5th April, 2019 (O.A. 360/2015) National Green Tribunal Bar Association v. Virendra Singh (State of Gujarat), extracted above, the NGT has observed that the scale of compensation for illegal mining is payable on the “Polluter Pays” principle and must be such as would enable “complete restoration of the environment.” The scale at which such monetary compensation would be payable in para 52 and 56 has been declared as including “not only the full value of the illegally mined material but also cost of restoration of environment as well as cost of ecological services foregone forever.” The NGT has observed that MPV should additionally form part of the compensation to be recovered. 668. The NGT has in para 56 of the above order dated 5th April, 2019 directed action against the polluters and the erring officers. 669. Significantly, in the same order, the NGT has reiterated the direction that vehicles or any other equipment used for illegal mining are required to be confiscated and to be released only on payment of atleast 50% of the showroom value as were laid down in OA No.220(THC)/2012. 670. In para 52 of its order dated 5th April, 2019, the NGT has stated that violation of its orders is a criminal offence punishable by imprisonment and fine. It is also observed that its orders can be executed by ordering civil imprisonment or adopting other norms. 671. In the present cases, the appellants as well as the respondents were aware of the illegalities noted by us hereinabove and the judgments of the Supreme Court. The Union Territory of Jammu & Kashmir (earlier State) was all along party in the proceedings before the NGT and aware of its directions. 268 LPA No.53/2020 & connected appeals Page 268 672. In para 57 of the order dated 5th April, 2019, the NGT has appointed a Committee for evaluating compensation. We have not been informed as to whether any recommendation has been placed by this Committee before the NGT or any orders passed on it. 673. There also appears to have been no compliance of the directions dated 13th September, 2018 of the NGT in Mushtakeen v. MOEFF & CC mandating evaluation of the NPV and compounding charges. 674. The royalty payments manifest the huge commercial profits which must have been derived by the appellants. For this reason we hold that appellants have no right to sue the respondents in any proceeding for loss or damage as none has enured to them. We, therefore, are unable to agree with the liberty granted by the learned Single Judge in para 76 of the impugned judgment dated 1st May, 2020, which are hereby set aside and quashed. We hold that appellants have no right at all to sue the respondents for any reason. 675. Given the directions we are passing hereafter, the respondents shall not refund any amounts to the appellants till such time appropriate assessment with regard to the remedial measures and compensation which the appellants may, respectively, be found liable for payment in terms of the directions we propose to pass. XXIV Submission that the amendment to the Rules was prospective and the pending applications of the appellants had to be considered in accordance with the unamended provisions 676. The appellants have contended before us that their applications having been made prior to the amendment of the rules, have to be favourably considered. 677. The impact of an amendment to a rule on pending applications fell for consideration before the Supreme Court in the judgment reported at (1981) 2 SCC 269 LPA No.53/2020 & connected appeals Page 269 205, State of Tamil Nadu vs. Hind Stone and Ors. which was placed by Mr. Z.A. Shah, Senior Counsel before us. In this case, on the 2nd December 1977, Rule 8-C was introduced into the Tamil Nadu Minor Mineral Concession Rules, 1959. By this Rule, it was directed that w.e.f. 7th December 1977 ‘no relief for quarrying black granite shall be granted to private persons’. The validity of the Rule was assailed in writ petitions before the Madras High Court which challenge was accepted. Allowing the appeals, the Supreme Court upheld the competency of the State Government to make the rules. 678. One of the grounds for challenge by the writ petitioners in Hind Stone was that the writ petitioners are persons who are holding leases for quarrying black granite which were about to expire and had applied for renewal of leases. Just as the appellants before us, they had also complained that their applications for renewal had been made prior to the coming into force of the prohibition in Rule 8- C and these applications should have been dealt with without reference to the same. It was further complained that these applications were kept pending for a long time. The Supreme Court held that an application for renewal is in essence an application for grant of lease for a fresh period; that the renewal is not to be granted automatically, for the mere asking. 679. So far as the consideration of the application dehors the amendment and incorporation of Rule 8-C is concerned, we may usefully extract the observations of the Supreme Court which also shed valuable light on the submissions made before us which reads as follosws: “12. The next question for consideration is whether Rule 8-C is attracted when applications for renewal of leases are dealt with. The argument was that Rule 9 itself laid down the criteria for grant of renewal of leases and therefore Rule 8-C should be confined, in its 270 LPA No.53/2020 & connected appeals Page 270 application, to grant of leases in the first instance. We are unable to see the force of the submission. Rule 9 makes it clear that a renewal is not to be obtained automatically, for the mere asking. The applicant for the renewal has, particularly, to satisfy the Government that the renewal is in the interests of mineral development and that the lease amount is reasonable in the circumstances of the case. These conditions have to be fulfilled in addition to whatever criteria is applicable at the time of the grant of lease in the first instance, suitably adapted, of course, to grant of renewal. Not to apply the criteria applicable in the first instance may lead to absurd results. If as a result of experience gained after watching the performance of private entrepreneurs in the mining of minor minerals it is decided to stop grant of leases in the private sector in the interest of conservation of the particular mineral resource, attainment of the object sought will be frustrated if renewal is to be granted to private entrepreneurs without regard to the changed outlook. In fact, some of the applicants for renewal of leases may themselves be the persons who are responsible for the changed outlook. To renew leases in favour of such persons would make the making of Rule 8C a mere exercise in futility. It must be remembered that an application for the renewal of a lease is, in essence an application for the grant of a lease for a fresh period. We are, therefore, of the view that Rule 8C is attracted in considering applications for renewal of leases also.” (Emphasis by us) 680. Before us, so far as the bids of the appellants are concerned, the respondents have not applied the new amended provisions. Objections premised on this submission are therefore completely misplaced. XXV Conclusions 681. In the aforesaid background, we conclude as under: I. The learned Single Judge was bound to consider the statutory provisions and the rules in their entirety and has rightly concluded that Rule 104A 271 LPA No.53/2020 & connected appeals Page 271 was affront to the Environment Protection Act. Rule 104A which enabled mining activity to be undertaken by the highest bidders without environmental clearance was ultra vieres the Mines and Minerals (Development and Regulation) Act, 1957. It was in the teeth of the judgment of the Supreme Court reported at (2012) 4 SCC 629 Deepak Kumar and Anr. V. State of Haryana and Anr., and the series of directions including the directions dated 5th September, 2019 and 13th September, 2018 made by the National Green Tribunal in the case OA No. 360/2015, National Green Tribunal Bar Association v. Virendra Singh (State of Gujarat) and OA No.186/2016 Satindra Pandey v. MOEF & CC, respectively. Rule 104A was in contradiction with Rules 26 (2) and 55(9) of the J&K Minor Minerals Concession, Storage, Transportation of Minerals and Prevention of Illegal Mining Rules, 2016. II. The illegal acts of the appellants have deprived the State of valuable financial resources in terms of the balance bid amount while deriving huge commercial profits and causing environmental degradation by their indiscriminate mining operations without environmental clearances utilizing the shield of Rule 104A. III. The suspicion of the respondents that in the auctions of 2017, the reserve price fixed was low and there was cartelization was with basis. IV. The decision of the respondents to cancel the auction of 2017 was bonafidely based on material on record and arrived at after application of mind and full consideration of the relevant material purely in public interest. 272 LPA No.53/2020 & connected appeals Page 272 V. The decision to change the policy and to auction mineral licences by e- auction was a reasonable policy decision fairly made without any ulterior purpose for the discernible reasons that e-auctions are the most transparent, maximize competition, geographically inclusive, effective, efficient method of conducting a public auction which enables maximization of the public interest and national priorities. VI. The writ court has limited powers of judicial review into administrative action and matters of contract. It does not have the jurisdiction to go into a factual dispute of whether in the facts of the case there was a concluded contract or not. VII. In the present cases, the bids of the appellants were only provisionally accepted; they were required to obtain approval of the Mining Plan and environment clearance in accordance with Rule 26(2) of the Rules of 2016 as well as deposit the balance bid amount within a period of six months as per Rule 55(9) which was communicated to the bidders by the letter of intent issued as per Rule 55(9); before being considered for grant of the mining lease under Rule 52 and lastly execution of the mining lease in accordance with Rule 40. Only thereafter, a concluded contract would have come into existence. For the reason that appellants failed to comply with the requirements of Rule 26(2) and 55(9), no concluded contract came into existence. VIII. The respondents had no power or authority to waive, modify the pre- conditions for grant of a mining lease or to grant extension of the time 273 LPA No.53/2020 & connected appeals Page 273 stipulation as contained in the Rules and communicated in the letter of intent. IX. The appellants were not concerned with the compliance of any of the mandatory conditions laid down in the rules or making good the financial obligations to the respondents and failed to act with expedition and diligence. The respondents cannot be held responsible for the delay in obtaining the environment clearances. As such, the finding of the learned Single Judge on issue no. iv that the appellants were not responsible for the delay is set aside and quashed. X. The appellants do not have any right or entitlement to seek compensation and hence no remedy in common law to do so. XI. The respondents had not held out any representation or unconditional promise to the appellants that they would be granted mining leases irrespective of whether they complied with the requirements of Rules of 2016 or not. The doctrine of promissory estoppels is neither attracted nor has application in the present case. XII. The cancellation of the entire auction of 2017 and the policy decision to allot mining leases henceforth only by e-auction was lawful, principle based, most transparent, viable and fair mode of grant of public largess. XIII. The action of the respondents cannot be faulted for violations of natural justice on the ground that no notice was issued before cancellation of the auction or because no reasons have been assigned in individual cases. XIV. The appellants are guilty of suppressio veri and disentitled to any relief. XV. The appellants are liable to effect reparation and compensation for the environmental degradation from their illegal mining. 274 LPA No.53/2020 & connected appeals Page 274 XVI. Rule 55(10) of the Rules of 2016 has no bearing or relevance in the present case. XVII. The submissioins that the appellant stood granted a ‘prospecting licence’ (LPA 61/2020) or a ‘quarrying licence’ (LPA 7/2020) are legally untenable and rejected. XVIII. The respondents are required to comply with the judgments and directions of the Supreme Court of India and the National Green Tribunal on the issues relating to reparation and compensation for environmental degradation and damage and to undertake a scientific examination of the impact on the environment of the acts of omissions of the appellants. XIX. In view of the admitted violation of the Rules and the requirements of LoI by the bidders, any action, communication or order of the authorities subsequent to 26th February, 2019, which could be considered as processing of the matter, is illegal and of no consequence and effect. XXVI Result 682. In view of the above, it is directed as follows: I. The instant appeals are found to be without any merit and are hereby dismissed. II. The conclusion of the learned Single Judge in para 46 of the judgment that the appellants had a remedy in common law to seek compensation is set aside and quashed. III. The liberty granted by the learned Single Judge in para 76 of the impugned judgment dated 1st May, 2020, to the appellants to claim refund of their bid amount(s), if any, lying with the respondents or to sue 275 LPA No.53/2020 & connected appeals Page 275 the respondents in appropriate proceedings for any loss or damage, if any, suffered by the appellants, is hereby set aside. IV. In view of the discussion in paras 296 to 311, hereinabove, the Chief Secretary of the Union Territory of Jammu & Kashmir shall take immediate steps for appointing professional and qualified person(s)/ agency(ies) for technically and scientifically evaluating, in strict time frames, the issues of: (a) fixation of the reserved prices of minerals in the UT of Jammu & Kashmir. (b) the terms and conditions on which auctions/tenders for grant of all mineral concessions are conducted. (c) recommendations of the experts so appointed be implemented in public interest. V. In view of the discussion in paras 273 to 295, hereinabove, the Chief Secretary of the Union Territory shall, if not already done, appoint a Committee of Experts on the lines of directions given by the Supreme Court of NGT in para 55 of the order dated 5th April, 2019 in OA No. 360/2015, National Green Tribunal Bar Association v. Virendra Singh (State of Gujarat), as well as order dated 13th September, 2018 in Mushtakeen v. MOEFF & CC, to assess the components and scales of compensation and recommend measures of reparation for acts and omissions of the appellants which have resulted in environmental degradation. VI. The Chief Secretary of the Union Territory shall appoint a nodal officer/ committee of officers to compute the scale of compensation as 276 LPA No.53/2020 & connected appeals Page 276 recommended by the Committee as above with a time bound mandate to issue notices to show cause to the appellants with regard to payment of compensation, if any, consideration of the responses, making appropriate determination of liability and effecting recoveries thereof. (SANJAY DHAR) (GITA MITTAL) JUDGE CHIEF JUSTICE Jammu 30.09.2020 "
Other Referred Cases
State of Tamil Nadu vs. Hind Stone and Ors, National Green Tribunal Bar Association v. Virendra Singh (State of Gujarat), Deepak Kumar and anr. V. State of Haryana, M/s Usman Constructions and others v. State of J&K and others, Mohd. Farooq Lone & Others v. State of J&K and others, Vikar Ahmad Dar v. State of J&K and others, Nagar Singh v. State of J&K and others, Shahnawaz Ahmad Bhat & anr. v. State of J&K and others, Rakesh Kumar Choudhary v. State of J&K and others
Laws Referred To
Mines and Minerals (Regulation and Development) Act, 1957, Environment (Protection) Act, 1986, Environment (Protection) Rules, 1986
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