WA/193/1999 of AS IN WA 192/1999 Vs AS IN WA 192/1999 on 22 December 2003

:JUDGMENT

V.S. SIRPURKAR, J.

These two appeals are directed against the common judgment ofthe learned single Judge whereby, the writ petitions filed by the petitionerwere allowed. In the said judgment, the learned single Judge has directed thefirst respondent Government to consider the application of the petitioneralone and pass the orders on merits thereupon. Few facts will highlight thecontroversy involved.

2. Appellant, Tamil Nadu Minerals Limited (hereinafter referred to as 'TAMIN'), is a Public Sector Undertaking while, the thirdrespondent herein is also a concern engaged in mining business.

2.1. Third respondent applied for a mining lease of mining garnet sand over an extent of 8.96 hectares of land in un-serveyed costal prombokeland lying in S.Nos.563 to 573 and 566 to 956 in Kuttam village, Radhapuramtaluk, Tirunelveli Kattabomman District. This application was made on21-1-1991 under Rule 22 of the Mineral Concession Rules, 1960 (in short 'theRules') and a challan for that was given by the 2nd respondent Collector. Theapplication was stated to be in the prescribed form as per the rules and,according to the petitioner, the application remained in cold storage forabout six years.

2.2. The first respondent sent a communication dated 17-3-1997, which communication was in the nature of a notice, whereby, the third respondent wasdirected to rectify the few deficiencies found in the application form. Thiswas under Rule 26(1) of the rules, the petitioner sent a reply on 31-3-1997,requesting the 1st respondent to give an opportunity to the petitioner torepresent its case along with an advocate so that the petitioner could placeall the relevant facts. It was also suggested in the reply that the 3rdrespondent had complied with the said notice.

2.3. Another letter was sent on 13-6-1997 again reiterating the prayer for the grant of mining lease and by the letter dated 2-7-1997, thethird respondent filed the necessary certificate as directed in the letterdated 17-3-1997. It was pointed out in the said letter dated 2-7-1997 thatthere was no defect at all in the application. All the letters sent by the3rd respondent were argumentative wherein, it was tried to be shown that therewas no breach on the part of the 3 rd respondent of any rules in respect ofthe said application for the grant of mining lease.

2.4. It is then pointed out that the 1st respondent Government didnot grant the mining lease to the 3rd respondent but granted the same toTAMIN, appellant herein, by G.O. Ms. No.197 dated 10-7-1997. Not only this,but it subsequently rejected the application of the 3rde respondent byproceedings dated 26-8-1997. The rejection was on various grounds, includingthat the lease was already granted in favour of TAMIN.

2.5. Two objections were, therefore, raised firstly, challenging thegrant of mining lease in favour TAMIN and secondly, against the order dated26-8-1997, rejecting the application of the 3rd respondent. It was suggestedin the writ petition that the grant of lease was against all the canons offair play as in fact, the application for the mining lease was made by the 3rd

respondent as early as in the year 1991 and the respondent-Government allowedit to pend for six long years and ultimately, rejected the same on untenablegrounds. It was also urged that the Government had tilted in favour of TAMINinasmuch as the Government, after receipt of the application by the 3rdrespondent, had toyed with the possibility as to whether TAMIN was interestedin the said lease. It was then pointed out, on the basis of the provisions ofthe Mines and Minerals (Regulation and Development) Act, 1957 in short 'theAct') and the Rules that the mining leases were granted on 'first come-firstserved basis and that an application, which was received earlier had to bepreferentially decided. In that view, it was pointed out that admittedly, theapplication of the 3rd respondent was earlier in point of time and yet, thelease was granted to the subsequent applicant TAMIN that too, in completebreach of the rules.

2.6. By way of defence, it was stated by the Government that therewas no question of any favouritism being shown to TAMIN as TAMIN is not anindividual concern. It was also pointed out that no rules were breached whileconsidering the application of TAMIN and also while rejecting the applicationof the 3rd respondent. It was further pointed out that TAMIN being a PublicSector Undertaking, was entitled to have a preferential treatment. It waspointed out that the order passed, rejecting the application for grant ofmining lease was correctly passed inasmuch as there was no valid compliancewith the applicable rules.

2.7. Learned single Judge has accepted the contention raised by thepetitioner that the State Government had shown favouritism to TAMIN in firstlynot passing any orders on the application made the 3rd respondent, which wasmade as back as on 21-1-1991. Learned Judge also found fault with the wholeprocedure and held that the action on the part of the Government to grant thelease in favour TAMIN was inexplicable. Learned Judge further found that theapplication made by the 3rd respondent was in keeping with the prevalent rulesand, therefore, by the principle of first come-first served, its' applicationwas the only application in the field, which was liable to be considered inits' favour.

2.8. In this view, the learned Judge allowed both the writ petitionsholding that the order, dated 26-8-1997, rejecting the application of the 3rdrespondent was unsustainable. The learned Judge, therefore, gave thedirections for consideration of the application of the 3 rd respondent,treating it to be the lone application for the grant of mining lease. Inshort, the learned Judge has directed the lease to be granted in favour of the3rd respondent.

2.9. Being aggrieved by this, the present appeals have been preferredby TAMIN.

3. Shri N. R. Chandran, learned Senior Counsel/Advocate General,appearing on behalf of TAMIN, has taken us through the relevant provisions ofthe Act and the Rules. There is no doubt that garnet is a mineral and iscovered under the provisions of the Act and the Rules.

3.1. The first and the foremost argument of Shri Chandran was that

the whole approach of the learned single Judge was wrong inasmuch as thelearned Judge has ignored the mandatory rules and thereby, an error has creptin even in the findings of facts. Learned counsel is at pains to point outthat there was no question of any favouritism in the whole affair by theGovernment being shown to TAMIN as firstly TAMIN is not an individual concernand is only a Public Sector Undertaking. He further argues that the learnedJudge has ignored the mandatory provisions of Rule 22 and more particularlythe proviso thereunder. He argues that it was an admitted position that alongwith the application the 3rd respondent had merely accompanied the affidavitin place of the mandatory mining No Due Certificate in the prescribed form.Relying on the proviso, the learned counsel argues that the 3rd respondentcould undoubtedly make an application without filing the No Due Certificate asalso without filing the affidavits of the individual partners (since the 3rdrespondent partnership firm was an unregistered firm). However, the failureon the part of the 3rd respondent to file No Due Certificate would invalidatethe application because of the specific language of the rule 22 and moreparticularly proviso thereto. Learned counsel, therefore, points out that ifthe application itself had become invalid, there was no question of its beingconsidered and, therefore, the learned Judge was in error in holding that theGovernment or the Collector, as the case may be, deliberately kept the 3rdrespondent's application pending and then sought the application from TAMIN.

3.2. It is the contention of the learned senior counsel that when theoffer was made to TAMIN and when ultimately received the application formining on 7-4-1995, there was no valid application by any party in the fieldand, therefore, in fact the application of TAMIN was the only and the priorapplication. He points out that a invalid application could not have beenworked on by the Government and had to be disposed of under the provisions ofRule 26 but, it was not necessary that such a rejection of that applicationshould have preceded the grant of mining lease in favour of TAMIN. He pointsout that admittedly, there was a breach of Rule 22 on the part of the 3rdrespondent and, therefore, the Government was perfectly justified in grantingthe lease in favour of TAMIN.

3.3. Learned counsel also urges by way of his second contention thatthe learned Judge should have not taken the exercise to compare the inter secapabilities of the 3rd respondent and TAMIN and should not have given thefinding that the 3rd respondent was a better suited person for the grant ofmining lease.

4. As against this, Shri A.L. Somayaji, learned senior counsel appearing on behalf of the 3rd respondent, urged that the learned single Judgehad correctly allowed the writ petitions as there was clinching evidence onrecord to suggest the favouritism shown by the Govenment in favour of TAMIN.Learned counsel argues that if the application of the 3rd respondent hadbecome invalid, there was no necessity for the Government to ultimately rejectthe same by passing an order dated 26-8-1997, which fact was even posterior tothe grant of lease in favour of TAMIN. Learned counsel points out that theauthorities were merely making a show of complying with the provisions andthat the lease was rightly ordered to be granted by the learned Judge in

5. On this backdrop, it will be for us to see as to whether thelearned Judge was right in allowing the writ petitions. For betterunderstanding the controversy, few provisions of the Act and the Rules willhave to be looked into.

6. Sec.11 of the Act creates a preferential right for mining leasewhere a person obtains the prospecting licence provided, of course, that hehasactually undertaken the prospecting operations and has not committed anybreach of the terms and conditions of the prospecting operations. Subsection(2) is as under:

"Subject to the provisions of sub-section (1) where two or more persons haveapplied for a prospecting licence or a mining lease in respect of the sameland, the applicant whose application was received earlier shall have apreferential right for the grant of the licence or lease, as the case may be,over an applicant whose application was received later"

The proviso to this section and sub-section (3) are not relevant for thepresent controversy. However, sub-section (4) provides notwithstandinganything contained in sub-section (2) but subject to the provisions ofsub-section (1), State Government may have, for reasons to be recorded andwith the previous approval of the Central Government, grant a prospectinglicence or a mining lease to an applicant, whose application was receivedlater in preference to an applicant whose application was received earlier.

7. In the beginning, learned senior counsel Shri Chandran tried totake recourse under Sec.4 by suggesting that even if it was held that theapplication of the 3rd respondent was received earlier to the application ofthe appellant, the State Government could still, by giving special reasons,choose to grant the lease to the appellant in preference to the 3rdrespondent.

8. The argument is clearly incorrect as for that purpose, a previousapproval would be required by the Central Government and, admittedly, no suchprevious approval has been there. Learned single Judge has also affirmed thatposition and, in our opinion, correctly.

9. Alternatively, learned senior counsel Shri Chandran relied on Rule22 under Chapter V. The rules contained in Chapter V are concerning the grantof lease in respect of land in which the minerals vest in the StateGovernment. There is no difficulty to hold that the minerals concerned inthis case do vest in the Government. That position has not been questioned byanybody. Learned senior counsel pointed out that Rule 22 envisages that everyapplication for the mining lease of such minerals has to be made in Form I andwith few accompaniments such as a valid clearance certificate, in the formprescribed by the State Government, on payment of mining dues, such as,royalty or dead rent and surface rent payable under the Act or the rules madethereunder from that Government or any officer or authority authorised by thatGovernment in this behalf. Proviso to clause (d) to rule 22 provides that incase the applicant is a partnership firm or a private limited company, suchcertificate shall be by all partners of the partnership firm or, as the case may be, all members of the private limited company. The other documents whichare the necessary accompaniments are given in clauses (e) to (h), which arenot relevant for the present controversy. Our attention, however, was drawnto the fourth proviso to Rule 22, which is as under: Provided that a properly sworn affidavit stating that no dues are outstandingshall suffice subject to the conditions that the certificate required as aboveshall be furnished within ninety days of the date of application and theapplication shall become invalid if the party fails to file the certificate within the said ninety days. ( emphasis supplied)The rest of the provisos to rule 22 are not relevant for the presentcontroversy.

10. Shri Chandran also points out Rule 23 wherein it is provided that

every application for grant or renewal of mining lease has to be acknowledgedin Form D within three days and the receipt therefor has to be given. Rule 26deals with the refusal of the application for the grant or renewal of mininglease. Since we are dealing with the order dated 26-8-1997, refusing theapplication of the 3rd respondent for grant of mining lease that rule would benecessary to be seen. Rule 26 reads as under:

"26. Refusal of application for grant and renewal of mining lease.- (1) TheState Government may, after giving an opportunity of being heard and forreasons to be recorded in writing and communicated to the applicant, refuse togrant or renew a mining lease over the whole or part of the area applied for.(2) An application for the grant or renewal of a mining lease madeunder rule 22 or rule 24-A, as the case may be, shall not be refused by theState Government only on the ground that Form I or Form J, as the case may be,is not complete in all mat l particulars, or is not accompanied by thedocuments referred to in sub-clauses (d), (e), (f), (g) and (h) of Cl.(i) ofsub-rule (3) of rule 22.

(3) Where it appears that the application is not complete in allmaterial particulars or is not accompanied by the required documents, theState Government shall, by notice, require the applicant to supply theomission or, as the case may be, furnish the documents, without delay and inany case not later than sixty days from the date of receipt of said notice bythe applicant."

11. The contention raised before us is that even if the applicationby the 3rd respondent was prior in point of time, the same was not accompaniedwith by the necessary documents in terms of rule 22(d), which we have quotedabove. He points out that initially though this application was valid, it wasrendered invalid as within ninety days of the date of application, thecertificate as required by rule 22(d) regarding the payment of minding dueswas not filed by the 3rd respondent within timeframe of ninety days of filingof the application. Learned senior counsel, therefore, argues that theapplication dated 21-1-1991, though remained a valid application till ninetydays, because of the default committed by the 3rd respondent in not submittingthe valid clearance certificate as required under clause (d) of rule 22, theapplication became invalid. Learned counsel, therefore, urges that such aninvalid application cannot create a preferential right under Sec.11(2) of theAct, which we have quoted above and, in our opinion rightly. In order to receive a preferential treatment, the application would have to be in order.Stretching the argument further, learned senior counsel submits that,therefore, if the application of TAMIN was made on 7-4-1995, that was the onlyvalid application lying with the Government and as such, there was nonecessity of considering the application of the 3rd respondent or giving it apreference under Sec.11(2) of the Act.

12. There could be no doubt that an application under Sec.10 for amining lease would have to be in order because the language of Sec.1 0 itselfsuggests that such application for mining lease has to be made to the StateGovernment concerned in the prescribed form and shall be accompanied by theprescribed fee. On this backdrop, when we see the language of Rule 22(1), itis as under:

"22. Application for grant of mining lease.- (1) An application for the grantof a mining lease in respect of land in which the mineral vest in theGovernment shall be made to the State Government in Form I, through suchofficer or authority as the State Government may specify in this behalf.We have already pointed out that under subsection (3) etc., every applicationhas to be accompanied by the fee of Rs.500/- and the documents such as validclearance certificate, etc. It is undoubtedly an admitted position that theapplication made by the 3rd respondent, though was in the prescribed form, didnot have with it the certificate regarding the payment of mining dues. Italso did not have the affidavits of all the partners, which is required underproviso to rule 22 (e). It is an admitted position again that the 3rdrespondent is an unregistered firm. Therefore, for making a valid applicationunder Rule 22, along with the application in the prescribed form, thedocuments suggested in Rule 22(3) were bound to be there. It is again truethat the 3rd respondent could still file an application without thosedocuments provided that an affidavit is filed in terms of the fourth provisoto Rule 22, which we have quoted above. It is also an admitted position thatin spite of ninety days period, no such No Due Certificate either in respectof the firm and also in respect of the partners individually were filed by the3rd respondent. Therefore, there could be no dispute that the applicationitself became invalid.

13. We must take into consideration, the prevalent competition in thefiled of mining of minerals. With the preferential right given underSec.11(2), it cannot be countenanced that a party, who makes an application inany form other than the prescribed form and should not comply with the clause(3) of Rule 22 and yet, should get the preferential right as envisaged inSec.11(2). In our opinion, learned senior counsel for the appellant isabsolutely right in arguing that Secs.10 and 11 and Rule 22 would have to beread together and such a conjoint reading would suggest that where anapplication is to be preferred within the meaning of Sec.11(2), suchapplication has to be a valid application. As rightly pointed out by thelearned counsel, otherwise, devastating results would ensue in the sense, anyperson would reserve an area for mining by making an defective application andin that case, the mere fact of making the application would have to be held assufficient for getting the preferential right. That does not appear to be thelogic behind the provisions. The rule has shown some elasticity in the matteralso in the sense that such defective application could remain a valid application for a period of ninety days but where the necessary documents likeValid Clearance Certificate, etc. are not filed within the ninety days'time-limit, the law itself provides for the invalidation of the said defectiveapplication. In our view, if the application so becomes invalid due to theoperation of the aforementioned proviso then, there will be no question of itsgetting any preference. Once this position is clear then, it knocks out thevery basis of the 3rd respondent's claim because the preferential treatment isthe only basis of the 3rd respondent's application for grant of lease.

14. Learned single Judge has found fault with the application of the 3rd respondent being allowed to pend for six long years and, in the meantime,considering the possibilities of the lease being granted to TAMIN. It soundsfrom the judgment of the learned single Judge that the learned Judge did notapprove of this favouritism shown in favour of TAMIN while studiously ignoringthe preferential claim of the 3rd respondent. In fact, the whole judgment isbased on this circumstance of the prior application made by the 3rd respondentand the Government's apathy towards that application for six long years. Inour opinion, learned senior counsel for the appellants is undoubtedly right incontending that the Government could not have acted on the application of the3rd respondent once it is found that the mandatory accompaniments to theapplication were not there and were also not made available in ninety days'time. The application had clearly become invalid so that there was noquestion of its consideration at all. At any rate, even if such applicationremained pending on record as an invalid application, the 3rd respondent couldnot have claimed a preferential treatment on the basis of the same.

15. Shri Somayaji, learned senior counsel for the 3rd respondent,urged that the State Government or, as the case may be, TAMIN did not takethis stand and Rule 22(d) and the proviso was not pressed into service byeither of them and, therefore, we should not allow the appellant to urge thispoint before us.

16. We simply fail to follow the logic behind this argument. It wasnot for any party to take a particular stand because the invalidation of theapplication is the natural fall out of the proviso. Whether the stand wastaken or not, the fact remains that the application of the 3rd respondentbecomes invalid by the force of the language of the proviso if the necessarydocuments are not filed within ninety days. Indeed, we do not see anythingunreasonable also in this rule and the proviso. A person, who has to take themining lease, if he is already in the mining operation, must approach for anew mining lease without dues. That is a perfectly reasonable provision andthe mandatory nature of this provision is highlighted because of the provisoto Rule 22(d). When we see the judgment of the learned single Judge, it isapparent that proviso to Rule 22(d) is not even distantly referred to in thatjudgment and the learned Judge proceeded on the basis that a valid applicationwas all the while pending for six long years and the Government was apatheticto it and instead the Government showed favour to TAMIN by firstly makingenquiries with TAMIN regarding their readiness to mine garnets and otherby-products.

17. The keenness of the Government on this question can be understood

17. The keenness of the Government on this question can be understood because of the fact that precious minerals are to be found in the beach sandbesides Garnet. They being Ilminite, Rutile, Leucoxene, Zirkon, Sciliminite,Monazite. Barring Garnet and Sciliminite, other minerals named above are the'prescribed substance' under Atomic Energy Act, 1962 and under the said Act,it is mandatory to obtain licence from the designated competent authority inthe Department of Atomic Energy for work of any mines and minerals from whichprescribed substances can be obtained. Such licence is necessary even for theacquisition, production, possession, use, disposal, export or import of suchprescribed substances. Between 1991-98, it was the natural policy that themining and protection of prescribed substances would be reserved for thePublic Sector Undertakings though that policy has been given a go-by in late1998. Undoubtedly even then a selective entry of the private entrepreneurswas permitted. However, considering the growing demand for these minerals,which were extremely precious and covered under the Atomic Energy Act, itcannot be treated to be unusual that the State Government would vie thepossibility of someone taking up the mining of these minerals along withGarnet and Sciliminite. If the application of the 3rd respondent was lying asan invalid application, nothing was wrong if the Government, which was keenfor the precious minerals, tried the possibility of such a mining operationfrom TAMIN, which is a Public Sector Undertaking.

18. Learned senior counsel for TAMIN has taken us through the statement of Industrial Policy pertaining to Public Sector Undertakings andalso pointed out that the public enterprises were given a pride place in theformation and promulgation of that policy. Paragraph 32 of the IndustrialPolicy dated 24-7-1991 was read out to us so also the resolution dated6-10-1998 published in Gazette of India vide No.8/1(1)/97-PSU/1422. It isfrom this that the learned senior counsel pointed out that it was notunnatural on the p art of the State Government to vie the possibilities of themining operation through Public Sector Undertakings like TAMIN, etc.particularly because of the vast coastal area and the sea-beach. The judgmentof the learned single Judge is silent on this point. We have referred to thisfact only to suggest that it was not unnatural on the part of the StateGovernment to try the Public Sector Undertakings like TAMIN for mining theprecious minerals which were of national importance owing to their utilisationin the Atomic Research Stations, etc. We, therefore, do not see any obliquemotive on the part of the Government when they tried the possibility of themining vide their letter dated 11-11-1994 sent to TAMIN enquiring whetherTAMIN was interested in mining of Garnets and other by-products. It is to beseen that this offer was replied in the affirmative by TAMIN by theircommunica tion dated 8-12-1994 and the application for the mining came to befiled on 7-4-1995. On the backdrop of the facts and law, which we havepointed above, we do not see anything wrong if the State Government consideredthe said application of TAMIN and granted them the lease on 10-7-1997.

19. Shri Somayaji tried to get out of this situation by suggesting that the application made by TAMIN was also defective as it was notaccompanied with the Income Tax certificates as required under Rule 2 2(3)(f).We have mentioned this argument only to be rejected because, the non-filing ofsuch income-tax particulars is not covered by the aforementioned provisoregarding the certificates relating to the payment of mining dues. It was

tried to be shown by Mr. Somayaji that the Government in fact considered allthe three application, i.e. one by the 3rd respondent, other by TAMIN andstill third by some other party and chose to grant the lease in favour ofTAMIN though 3rd respondent was a better suited party for mining. Learnedsenior counsel tried to suggest that they were having vast experience in themining operation as they were already in this field and in past TAMIN haddeclined to take up the lease for mining Garnet, etc.

20. We find that in the impugned judgment also, there is somereference to the inter se merits between the 3rd respondent and TAMIN. We donot think that it will be for this Court to compare the inter se meritsbetween the contesting parties and indeed, there is no question of thecomparative merit in this case because, on the relevant date, TAMIN was theonly party, whose application was pending. Again, it will be only for theGovernment and the experts in the mining field to opine regarding the inter semerits of the parties. We, therefore, desist from giving any such finding,nor do we agree with the finding of the learned single Judge that the 3rdrespondent was a better suited person for the mining lease.

21. This takes us to the last question, which was argued by Shri Somayaji that while the leave in favour of TAMIN was granted on 10-7-1 997, itwas only later on the application of the 3rd respondent came to be rejected byorder dated 26-8-1997, which order was also impugned in the writ petitionsfiled by the 3rd respondent. The contention raised was that the order waspassed only by way of completing the formality of rejecting the application.Learned senior counsel also urged that that would go to show that theGovernment never treated the 3rd respondent's application to be invalid andotherwise, there would not have been an exercise on the part of the Governmentto pass an order refusing the application. To answer this argument, one needsonly to look to Rule 26, which we have quoted above.

22. Under Rule 26(1), before refusing an application made for grantand renewal of mining lease, an opportunity is to be given by the StateGovernment of being heard as also the reasons are required to be recorded forrefusing to grant or renew the mining lease. Sub-rule (2) provides that anapplication for grant of a mining lease is not to be refused only on theground that Form I or Form J, as the case may be, is not complete in all thematerial particulars or the application is not accompanied with the documentsreferred to in sub-clauses (d) to (h) of Rule 22(3). From this learned seniorcounsel argues that the State Government could not have refused theapplication merely because the documents like No Due Certificate, etc. werenot furnished or were not made available by the 3rd respondent. Learnedcounsel also argues that under sub-rule (3) an opportunity has to be given tocomplete all the material particulars and once such notice is given, thedocuments should be furnished within sixty days from the date of receipt ofthe said notice. He points out, therefore, that the application, which wasprior in time, made by the 3rd respondent could not just be allowed to pendand then refused that too, after the lease was already granted to TAMIN andfurther such refusal could not be depended upon the fact that the lease havingalready been granted in favour of TAMIN.

23. The argument is clearly incorrect. There is a clear difference

23. The argument is clearly incorrect. There is a clear difference in the application becoming invalid on account of the noncompliance in termsof the proviso to Rule 22(d) and the ultimate refusal of that application.Even if the joint reading of Rule 22(d) proviso and Rule 26 would clearlybring out a position that where the application becomes invalid, it shall notbe refused merely on that ground and an opportunity should be given to theparty to complete the formalities of filing the necessary documents. Herethat opportunity has been given when the notice dated 17-3-1997 has beenserved on the 3rd respondent. It is an accepted position that the 3rdrespondent did not comply with the notice for sixty days because the necessarydocuments regarding the no mining dues, etc. came to be available only on2-7-1997, which was much beyond sixty days' time. Even if it is to beconsidered that the notice dated 17-3-1997 was complied with, in our opinion,the application was refused for good reasons and the grant of lease in favourof TAMIN regarding the same site would certainly be a good and sufficientreason for refusing the application of a rival party like the 3rd respondent.We are of the opinion that TAMIN being a Public Sector Undertaking and therebeing a possibility of the prescribed substances being found in the mining ofGarnet, the State Government was quite justified in preferring a Public SectorUndertaking for the mining operation in keeping with the policy though we musthasten to add that there was no question of any preference being givenparticularly when such a preference is not possible to be read from the rules.However, one cannot be unmindful to the fact that when the lease was beingconsidered, the application of the 3rd respondent had already become invalid.It was only in pursuance of Rule 26 that the same came to be refused and, inour opinion, the subsequent refusal of that application would not by itselfinvalidate the order of refusal nor would it have the effect of rejuvenatingthe invalid application of the 3rd respondent. This aspect has also not beenconsidered by the learned single Judge who has concentrated on the fact thatthe 3rd respondent's application was rejected only after the lease was grantedin favour of TAMIN only to complete the formalities. There are clearly twostages which emerge out from the rules. The first being the application beingrendered invalid and the second being its' refusal under Rule 26. There couldbe number of other reasons besides the non-compliance with the necessaryconditions under Rule 22 for refusing the application and that is preciselywhat has been done by the State Government in refusing the application bygiving other reasons like grant of lease in favour of TAMIN and TAMIN being aPublic Sector Undertaking. We, therefore, do not find anything wrong in theaction of the State Government.

24. In short, we are not in a position to agree with the impugnedjudgment and would choose to set it aside. We are also of the clear opinionthat the writ petitions filed by the 3rd respondent herein did not deserve tobe entertained and are liable to be dismissed. We accordingly order thedismissal of the writ petitions. The writ appeals are allowed. Under thecircumstances, however, we pass no orders as to the costs. Connected CMPs areclosed.

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