031-SLLR-SLLR-1996-1-GENERAL-METALS-LTD-.-V.-PERERA-SECRETARY-MINISTRY-OF-INDUSTRIES-SCIENCE-.pdf
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GENERAL METALS LTD.,
V.
PERERA, SECRETARY, MINISTRY OF INDUSTRIES, SCIENCEANDTECHNOLOGY AND OTHERS
SUPREME COURT.
AMERASINGHE, J„
DHEERARATNE, J. ANDWIJETUNGA, J.
S.C. APPEAL 99/94.
14 & 15 MAY AND 07 JUNE, 1996.
Mines and Minerals Act, No. 33 of 1992, ss. 39(1), 40(2) – Exploration andMining Licences.
The Geological and Mines Bureau (2nd Respondent) refused to issue theAppellant two licences: one for exploring and the other for mining a definedextent of 50 acres containing rock phosphate at Eppawala. The Secretary,Ministry of Industries, Science and Technology (1st Respondent) to whoman appeal was made affirmed the refusal. The exploration licence wasrefused because the defined 50 acres partly overlaps (leaving a balance)the area to which an exploration licence was already issued in favour of the3rd Respondent. The mining licence was refused because it was for thesame 50 acres and it fell within the same area for which an explorationlicence had been already isssued in favour of the 3rd Respondent.
Held:
In terms of the rules made by the Minister under section 64 read withsection 34 of the Mines and Minerals Act, No. 33 of 1992, an application fora licence for Exploration (Regulation 4(1) and Form 2.1) must necessarilybe made with reference to identifiable numbered metric grid units of thearea requested. There was nothing before the 1st Respondent to identifywhich metric grid units comprised the area in regard to which licences werealready granted or the application miade by the 3rd Respondent related andwhich metric grid units covered the 50 acre area claimed by the Appellant.
Although according to section 40(2) of the Mines and Minerals Act, readwith Article 118(8) of the'Constitution an appellate jurisdiction has beenconferred on the Supreme Court to "affirm or reverse" it must be interpretedto Include jurisdiction to remit the case for a re-hearing.
APPEAL from decision of the Secretary, Ministry of Industries, Science and
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General Metals I Irl i/ Perera Secretary. Ministry of Industries,
Science and Technology and Others (Dheeraratne, J.)
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Technology under section 40(2) of the Mines and Minerals Act, (read withArticle 118 (8) of the Constitution)
K.N.Choksy,P.C.with Faisz Musthapha, P.C., Ananda Kasturiarachchi andA.Panditaratne for Appellant.
K.Sripavan, D.S.G. for 1st Respondent.
Mohan Peiris with Jayantha Fernando for 3rd Respondent.
Cur.adv.vuit.
July 08, 1996.
DHEERARATNE, J.
This is an appeal from a decision of the Secretary, Ministry ofIndustries, Science and Technology (1st Respondent), affirming therefusal of the Geological Survey and Mines Bureau (the 2nd Respond-ent), to issue the Appellant two licences one for exploring, and anotherfor mining, a defined extent of 50 acres containing rock phosphate atEppawala.
On 7th June, 1994 the Director, Geological Survey and Mines Bu-reau wrote to the Appellant two letters P20 and P21 refusing to issuethe licences. P20 which relates to the refusal to issue the licence toexplore, stated;-
"reference to your application Nosubmitted to us on
13th March 1994 and your letter dated 3rd June 1994 in respectof exploration for phosphate at Eppawala, we wish to inform youas follows:
the area you have applied for partly overlaps an area for whichan Exploration Licence has already been issued to LankaPhosphate Ltd. and also an area which is being presentlyconsidered in favour of the same Company (ii) in processingyour application for the balance area, we have written to andawaiting the concurrence of (a) Ministry of Forestry Irrigation andMahaweli Development and (b) Department of AgriculturalServices."
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P21 which relates to the refusal to issue the licence to mine reads:
“We regret to inform you that the above application submitted by- you on 10th May 1994 in respect of an Industrial Mining Licenceto mine at Eppawala is refused as the area you have requestedfor mining falls within the area where an exploration licence hasalready been issued to Lanka Phosphate Ltd."
The 3rd Respondent company was incorporated on 10.7.1992 interms of the Conversion of Public Corporations and Government OwnedBusiness Undertakings into Public Companies Act, No.23 of 1987, totake over the Eppawala Phosphate Project of the State and MineralsDevelopment Corporation; it is a company fully owned by the Secre-tary to the Treasury on behalf of the Government of Sri Lanka.
It is not disputed that the appellant sought both licences for adefined area of 50 acres depicted in surveyor K.K.Silva's plan No.794dated 15th June, 1993 (vide para 12 of the petition filed before the 1stRespondent and para 14 of the petition filed before this Court). Ac-cording to P20, the Appellant's application for an exploration licencewas refused because the defined 50 acres partly overlaps (leaving abalance ) the area to which an exploration licence was already is-sued to the 3rd Respondent; according to P21, the mining licence forthe same 50 acres was refused because it falls within the same areafor which an exploration licence was already issued in favour of the3rd Respondent. These two letters thus present two contradictory andinconsistent positions.
The Appellant appealed from the decision of the GSMB to the 1stRespondent and his order sent to the appellant affirming the refusalsreads as follows:
The appeal dated 14.06.94 made to me in terms of section 39(1) ofthe Mines and Minerals Act, No.33 of 1992 refers, (sic)
Having carefully considered, the several averments in the petitionof appeal, the annexures P1 to P23 and documents X and Y and thesubmissions made at the hearing of this appeal by your counsel Mr.FaiszMusthapha PC, I hereby disallow the appeal made by you to set aside
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the following decisions of the Geological Survey and Mines Bureaudated 07.06.94, refusing issue of
an Exploration licence, and
an Industrial Mining licence for the reasons given below.
Reference the submission made in respect of the area for whichan application for an exploration has been tendered.
The 50 acre extent of land referred to in paragraph (a) to the prayerof the appeal falls within the area to which an Exploration Licence hasbeen issued to Lanka Phosphate Ltd.
Lanka Phosphate Ltd. held a valid mining licence for the said areawell before the date of operation of the Mines and Minerals Act, No.33of 1992.
Reference the submission made in respect of the date of ten-dering applications.
It is observed that the General Metals Ltd. "duly completed appli-cation" for an Exploration Licence for 40 square km. in terms of theMining (Licensing) Regulation 4(5) and (7) of the Extra Ordinary Ga-zette No.794/23 dated 26.11.93 has been received by the GeologicalSurvey and Mines Bureau on 23.3.94 whereas the Lanka PhosphateLtd. "duly completed application" for an Exploration Licence for 36square km. had been received by the Bureau on 18.03.94, and there-fore was pending before the application of General Metals Ltd.
Document "P6" attached to the submission refers to a "proposal tomine and export rock phosphate" and a request made to "allocate 50acres of land from the rock phosphate belt from Eppawala", purportedto have been received by the Geological Survey and Mines Bureau on22.01.93, and prior to the operation of the Mines and Minerals Act,No.33 of 1992, and the coming into operation of the GSMB. It is there-fore observed that I am unable to accept the authenticity of the seal onP6 and consequently unable to place reliance on this document. Onthe said date, i.e., 22.01.93, Lanka Phosphate Ltd. held a valid mininglicence in terms of the Mines and Minerals Law, No 4 of 1973, covering
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a large extent of land in the rock phosphate belt of Eppawala whichalso included the 50 acres extent of land requested by the GeneralMetals Ltd.
Reference Industrial Mining Licence
In terms of section 5 (1)(a) of the Mining (Licencing) Regulationsaforementioned, only a holder of an Exploration Licence shall apply foran Industrial Mining Licence. Hence, your application for an IndustrialMining Licence contravenes the said provision of the regulations, asno Exploration Licence was held by General Metals Ltd. at the time oftendering application for an Industrial Mining Licence.
Thus, the decision of the 1st Respondent has been reached hav-ing considered the several averments in the petition of appeal, annexuresP1 to P23, documents X and Y and submissions made by learnedPresident's Counsel for the Appellant at the hearing. The correctnessof that decision could be reviewed by us only on the material availableto the 1 st Respondent at the time he made that decision. We havetherefore refrained from considering any fresh material submitted laterto us in the proceedings before this court, in particular the documentsR1 to R9 filed on 07.11.95 along with “written submissions on behalf of1 st, 2nd and 3rd Respondents". I must observe at this point, that filingjoint written submissions by one attorney on behalf of the appellatebody, the decision making body and the party successful before theappellate body, although they all happen to be State agencies, givesus matter for concern; such an act could also hardly inspire confi-dence in the aggrieved party, the Appellant, that he was treated fairlyby the statutory authorities. I may add however that subsequently atthe hearing, the 1 st and 3rd Respondents were separately representedby counsel.
The following positions emerge from the decision of the 1st Re-spondent:
The defined 50 acres tells within the area for which an explora-tion licence was issued to the 3rd Respondent.
The duly completed application for an exploration licence for
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Science and Technology and Others (Dheeraratne, J.)
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40 square km. (50 acres) made by the Appellant was received by theGSMB when the duly completed application for an exploration licencefor 36 square km.(45 acres) by the 3rd Respondent was pending.
The 3rd Respondent had a valid mining licence in terms ofthe Mines and Minerals Law No. 4 of 1973 covering a large extent ofland in the Eppawala Phosphate belt which included the 50 acres.
Licences referred to in (i) and (iii) and the application of the 3rdRespondent referred to in (ii) above, do not seem to have been beforethe 1st Respondent when he reached the decision. It was absolutelynecessary for the 1st Respondent, for the purpose of deciding the ap-peal made to him, to identify the area covered by those licences, be-fore he came to the conclusion that the defined 50 acre area fell withinone of those areas. It is so even with regard to the area of 36 squarekm. referred to in (ii) above.
The question as to who had made a prior application for an explo-ration licence would arise only if rival applicants compete for the samearea or part of the same area. What material did the 1 st Respondenthave to show that land in respect of which the Appellant applied forlicences fell within the area in respect of which a licence had beenalready issued to the 3rd Respondent? The Appellant seeks licencesfor the defined 50 acres from lot 70 in the Final Village Plan No. 337. Asupplement plan No. 2 (P23) dated 10.06.91 was prepared in relationto lots 68,69 and 70 of the Final Village Plan No.337 by officers of theSurveyor General's Department; the survey for this purpose was donein May 1991. The tenement sheet relating to that supplement plan P23was produced before us as P26, a document which was not before the1st respondent when he heard the appeal. This tenement sheet showsthat lot 68 (and not 70) of the Final Plan was claimed in May 1991 bythe Acting Project Manager, Phosphate Project Eppawala, as "beingpossessed at present by the State Mining and Minerals DevelopmentCorporation and to be given out on a long lease to Lanka PhosphateLtd”. It is these documents P23 and P26 which had persuaded theappellant to assume that no exploration or mining licences had beengranted to the 3rd Respondent in respect of lot No.70 in the Final Plan337. Plan P23 and its tenement sheet P26 are not conclusive as towhether any licences were or were not already issued to the 3rdRespondent in respect of lot 70 in the Final Village Plan.
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To come to a decision on the question whether the area in respectof which the Appellant claims licences fell within the area to whichlicences have been issued or an application made by Ms. Lanka Phos-phate Ltd., there should have been a plan before the 1st Respondentsuperimposing those respective areas at least with reference to a Fi-nal Village Plan. Such a plan was not before the 1st Respondent. Onthe other hand, in terms of the rules made by the Minister on 23.11.93under section 64 read with section 34 of the Mines and Minerals Act,No.33 of 1992, an application for a licence for Exploration (Regulation4(1) and form 2.1) and an application for a licence for mining(Regulation4(3) and form 2.3) must necessarily be made with reference to identifi-able numbered metric grid units of the area requested.There was noth-ing before the 1st Respondent to identify which metric grid units com-prised the area in regard to which licences were already granted or theapplilcation made by the 3rd Respondent related and which metric gridunits covered the 50 acre area claimed by the Appellant. For thisreason alone we cannot permit the order of the 1 st Respondent tostand. Mr. Sripavan DSG in the best traditions of the Attorney-Gener-al's Department, correctly conceded that the 1 st Respondent's ordercannot be supported.
The resulting position would be to set aside the determination ofthe 1st Respondent and remit this matter for a fresh consideration byhim. Mr. Choksy PC for the Appellant drew our attention to subsection40(2) of the Mines and Minerals Act, in relation to our jurisdiction. Hesubmitted that it is an appellate jurisdiction conferred on this Court interms of Articlel 18(8) of the Constitution read with subsection 40(2) ofthe Mines and Minerals Act; and he drew our attention by way of con-trast to the wider wording used in Article 127(2). His contention wasthat in terms of section 40(2) we are empowered either to "affirm orreverse" the decision of the 1st Respondent; if we do not affirm, hesubmitted, it ipso facto follows that we must reverse the decision andgrant the licences applied for by the Appellant. This would mean thatwe have to order granting of licences to the Appellant when there isnothing to indicate whether the 50 acre area fell within the area cov-ered by licences purported to have been issued to the 3rd Respondentor not. We are unable to give such a restricted construction to the
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words "affirm or reverse" in subsection 40(2) so as to produce an ab-surd result, which we must presume, the legislature never intended.
For the above reasons we remit this matter to the 1 st Respondentto rehear the appeal made to him. The parties will bear their owncosts.
AMERASINGHE, J. -1 agree.
WIJETUNGA, J.-1 agree.
Case sent back for re-hearing.