Calcutta High Court (Appellete Side)
Irc.Natural Resources Pvt. Ltd. &Anr vs The State Of West Bengal & Ors on 11 October, 2023
Author: Arijit Banerjee
Bench: Arijit Banerjee
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
PRESENT:
THE HON'BLE JUSTICE ARIJIT BANERJEE
And
THE HON'BLE JUSTICE PRASENJIT BISWAS
MAT 1458 OF 2018
IRC.Natural Resources Pvt. Ltd. &Anr.
Vs.
The State of West Bengal & Ors.
For the appellants : Mr. JishnuSaha, Sr. Adv.
Mr. Shuvasish Sen Gupta,
Mr. S. Mishra,
Mr. B. Sen ,
Mr. IndranilKarfa
For the State : Mr. T.M. Siddiqui, AGP,
Mr. Nilotpal Chatterjee
For the respondents : Mr. Sanjay Saha,
Mr. S. Bhattacharya, Judgment on : 11.10.2023 Prasenjit Biswas, J:-
1. An order dated November 16, 2018, passed by a learned Single Judge of this Court in the appellants' writ petition being W.P. No. 20023 (W) of 2018. The writ petition was filed challenging a 2 letter dated September 17, 2018, cancelling a joint venture agreement between the appellant no. 1 and the respondent no. 4.
The learned Judge directed exchange of affidavits and kept upon the issue of maintainability of the writ petition. This order has been challenged in the present appeal.
2. Being aggrieved by the refusal on the part of the learned Single Judge to pass an interim order restraining the respondents from transferring the concerned mines/mining lease in favour of third parties, the writ petitioners have come up by way of this appeal. At the time of admission the appeal, the parties submitted that the writ petition should be heard out along with the appeal. Accordingly a Coordinate Bench directed as follows:-
"For the purpose of expeditious disposal of the matter, we propose to take up the writ petition in view of the consent given by the parties ..........
List the appeal and the application for injunction as well as the writ petition, being W.P. 20023 (W) of 2018, in the first week of February, 2019, under an appropriate heading."
Accordingly, we have heard the appeal, the connected application and the writ application together.
3. The West Bengal Mineral Development and Trading Corporation Ltd. invited expression of interest on 11 th December, 2012 from different entrepreneurs for selection of Joint Venture Partner for the purpose of exploration and exploitation of mineral deposits (rock phosphate, granite and fire clay) along with setting up and running of processing plants in this State. Consequent to that 9 numbers of bidders submitted their expressions of interests and out of them 6 bidders were selected by the West Bengal Mineral Development and Trading Corporation Ltd. giving them scope to 3 submit their financial bids. Ultimately, the Petitioner No.1 was selected by the WBMDTCL as its Joint Venture Partner for mining of rock phosphate apatite in the Beldih Apatite Mine in Purulia.
4. Thereafter, a Joint Venture Agreement was entered in between the petitioner no.1 and WBMDTCL (Respondent No.4) on 16th August, 2014 for organization, operation and Management of Joint Venture Company (JVA) and in terms of the agreement this petitioner no.1 caused a Performance Bank Guarantee for rupees one crore to be furnished in favour of WBMDTCL which was renewed from time to time till the cancellation of the agreement.
5. Clause 2.1(C) of the joint venture agreement stipulates that the mining lease would be transferred in the name of Joint Venture Company subject to prior approval of the Government of West Bengal. Clause 3.3 of the agreement provides about the share holding pattern of the company which would be WBMDTCL 26% and the petitioner No.1 74% share. The said agreement also provides a clause stating that the Joint-Venture Company would set up a processing plant at Rangadih Grinding Unit in Purulia District.
6. Clause 5(1) provides that the leasehold mining rights in the name of the Respondent No.4 at Beldih in Purulia would be transferred to the Joint Venture Company by the Respondent No.4 subject to the Government approval.
7. As per terms of the agreement till incorporation of the Joint Venture Company, the agreement would be managed by constituting a steering committee and accordingly the committee was constituted on 27th August, 2014 with the representatives of WBMDTCL/ Respondent No.4 and the Petitioner No.1 Company.
8. In the meantime, pending the incorporation of the JVC section 12A of the Mines and Minerals (Development and 4 Regulation) Act, 1957 was amended by insertion of Section 12A(6) with effect from 12.01.2015 which entails as follows-
"The transfer of mineral concessions shall be allowed only for concessions which are granted through auction.
[Provided that where a mining lease has been granted otherwise than through auction and where mineral from such mining lease is being used for captive purpose, such mining lease may be permitted to be transferred subject to compliance of such terms and conditions and payment of such amount or transfer charges as may be prescribed. (This proviso was introduced on 06.05.2016) Explanation - For the purposes of this proviso, the expression "used for captive purpose" shall mean the use of the entire quantity of mineral extracted from the mining lease in a manufacturing unit owned by the lessee"
9. Section 12A (6) has been omitted w.ef. 28.03.2021 by section 17 of the Mines and Minerals (Development and Regulation) Amendment Act, 2021.
10. Section 17A of the said Act was also amended by incorporating section 17A (2B) which entails as follows-
"Where the Government Company or Corporation is desirous of carrying out the prospecting operations or mining operations in a joint venture with other persons, the joint venture partner shall be selected through a competitive process, and such Government Company or Corporation shall hold more than seventy four percent of the paid-up share capital in such joint venture."
11. The petitioner no.1 made a representation through a letter dated 23.07.2015 by stating that even after amendment of the Act there is no legal embargo for incorporation and registration of 5 Joint Venture Company and the subsequent transfer of the lease in favour of the company as per provision of Mining Concessions Rules, 1960.
12. It would not be out of place to quote the second proviso of Rule 24 of the Minerals (Other than Atomic And Hydrocarbon Energy Minerals) Concession Rules which provides as follows-
"Provided further that transfer of the mineral concession taken place or the engagement, contract or understanding entered into with the previous consent in writing of the State Government before 12th January, 2015, i.e., the coming into force of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 shall not be liable for any action under this rule."
13. Our attention is drawn to the fact that a legal opinion was obtained from the then Advocate General of the State who opined that there is no legal bar in the Act as well as in the Amendment Act, 2015 to initiate the process of incorporation of Joint Venture Company as per agreement and the consequential transfer of the mining lease in favour of the JVC. Another legal opinion was obtained from the then Advocate General of the State by the respondent no.4 and was intimated to the respondent no.2/ Department of Industries, Commerce and Enterprises. It is stated that the Respondent No.4 accepted the opinion of the Advocate General and requested the respondent no.2 to allow the transfer of mining lease granted to the respondent no.4 for extraction of apatite at Beldih Mines in favour of the Joint-Venture Company to be formed by the respondent no.4 and the petitioner no.1.
14. It is stated by the petitioner that for the first time i.e. on 26th April, 2017 the respondent no.4 intimated the respondent no.3 that Section 12A(6) of the Mines and Minerals (Development and Regulation) Act, 2015 has come into force and so the Joint Venture Company could not commence operation and as per amended 6 section the operation of Beldih Apatite Mine is possible for captive purpose only.
15. It is submitted on behalf of the petitioners that in its reply letter dated 25th October, 2017, the Government of India clarified the position and advised that the State Government may transfer the mining lease subject to the conditions specified in Section12A of the Amended Act and the Rules in case of transfer of mining lease granted otherwise through auction or captive purpose. Thereafter, the respondent no.1 enquired of the Chief Mining Officer about the feasibility of utilisation of minerals extracted from the mine by the Rangadih Processing Unit of the respondent no.4 for captive purpose. Accordingly, a joint field inspection was conducted and report was submitted before the respondent no.1. The said report concluded that the proposed transfer of mining lease of Beldih Apatite Mine may be admissible as per the extant statutes. In reply to the request for incorporation and registration formalities of the Joint Venture Company they were informed by the respondent no.4 that the matter had been referred to the Government of West Bengal.
16. The respondent no.4 suddenly cancelled the Joint Venture Agreement executed on 16th August, 2014 for mining of appetite rock phosphate magnetite deposit at Beldih Apatite mine.
17. Learned Senior Counsel appearing on behalf of the petitioners submitted before us interalia that the petitioner no.1 had been selected as joint venture partner in a transparent competitive bidding process for the purpose of exploration and extraction of appetite. Our attention was drawn to section 17(2B) of the Act and it was submitted that section 17(2B) is not applicable in this case of transfer of mining lease in favour of the Joint Venture Company,the partner for which was selected through a competitive bidding process. As per submission of the learned counsel that section 7 17(2B) would be applicable only to new lease granted under the said section which is enacted/incorporated for the purpose of reservation of area of the purposes of conservation. Since the mine is existing mine and not reserved for the purposes of conservation the above provision of the Act would not apply in this case.
18. The learned Counsel on behalf of the petitioners strenuously submitted that the terms and conditions of the Joint Venture Agreement did not provide that all the extracted minerals would be used for captive consumption by the respondent no.4 only. It was argued that the respondent authorities failed to consider that section 17A(2B) of the Act deals with reservation of area for purpose of conservation and hence section 17A(2B) has got no application in the present case. It was further submitted on behalf of the petitioners that the Joint Venture Agreement was executed on 16th August, 2014 when the requirement of captive consumption of the entire extraction of minerals was not a condition precedent for transferring the mining lease by the respondent no.1 in favour of the company. Although section 12A(6) came into force on 12th January, 2015 and proviso of section 12A (6) was incorporated on 6th May, 2016, it was submitted that the respondent no.1 had never requested the petitioner no.1 and the respondent no.4 to amend the Joint Venture Agreement in view of subsequent legislative changes.
19. It was submitted by Mr. Jishnu Saha, the learned senior counsel on behalf of the petitioners that the Joint Venture Agreement was entered into on 16th August, 2014 before the Mines and Minerals (Development and Regulation) Amendment Act, 2016 and Minerals(Transfer of Mining Lease Granted otherwise than through Auction for Captive Purpose) Rules, 2016, came into force.
20. It was submitted on behalf of the respondents that during the process of formation of the Joint Venture Company, 8 Mines and Minerals (Development and Regulation) Amendment Act, 2015 was introduced wherein section 12A(6) stipulates that the transfer of mineral concession shall be allowed only for concession which was granted through auction. The mining lease should be transferred subject to fulfilment of the conditions specified in section 12A of the Act as amended by the Mines and Minerals (Development and Regulation) Amendment Act, 2015 and the provisions of transfer in Minerals (Transfer of Mining Lease Granted otherwise than through Auction for Captive Purpose) Rules, 2016. It was further submitted that the expression "used for captive purpose" as embodied in section 12A(6) means the use of entire quantity of mineral extracted from the mining lease in a manufacturing unit owned by the lessee.
21. Learned counsel appearing for the respondents also submitted that clause 2(B) of section 17(A) provides that where a Government Company or Corporation is desirous of carrying out the prospecting operations or mining operations in a joint venture with other persons, the joint-venture partner shall be selected through a competitive process, and such Government Company or Corporation shall hold more than 74% of the paid up share capital in such joint-venture and due to such amendment the mining lease was not transferred to the Joint-Venture Company by the Respondent No.4.
22. Learned counsel submitted that although a Joint- Venture Agreement was executed but the Joint-Venture Company was never formed. He has pointed out that WBMDTCL got the lease through reservation route and not through proper auction and as per proviso to section 12A(6) transfer of mining lease will be allowed if the Government Corporation makes captive use of the entire mineral extracted. As per submission of the learned counsel the instant writ petition is not maintainable in view of existence of arbitration clause in the Joint-Venture Agreement. Our attention 9 was drawn to paragraph 28 of the judgement rendered by the Hon'ble Apex Court in case of Gail (India) Ltd. Vs Gujarat State Petroleum Corporation Limited reported in (2014) 1 SCC 329. So, learned counsel submitted that the WBMDTCL has rightly cancelled the Joint-Venture Agreement dated 16th August, 2014.
23. We have anxiously considered the submissions advanced by both the parties and also considered all the materials on record.
24. Admittedly, Respondent No.4 selected the Petitioner No.1 as its Joint Venture Partner for mining of rock phosphate apatite in the Beldih Apatite Mine in Purulia and a Joint Venture Agreement was executed by and between the petitioner no.1 and the respondent no.4/ WBMDTCL on 16th August, 2014. Clause 2 of the agreement provides that the parties agreed to incorporate a Joint Venture Company (JVA) for mining and processing of rock phosphate apatite mineral at Beldih in Purulia District and for setting up a processing unit at Rangadih Grinding Unit in Purulia District in the State of West Bengal and/or any other place or places.
25. Clause 2.1 (c) of the Joint Venture Agreement stipulates that it was agreed that the mining lease in favour of Respondent No.4 would be transferred in the name of Joint-Venture Company as per the Mineral Concessions Rules, 1960 subject to prior approval of the Government of West Bengal.
26. Clause 5 deals with mining rights and clause 5(1) provides that the lease hold mining rights in the name of respondent no.4 at Beldih in Purulia District would be transferred to the Joint Venture Company by the Respondent No.4/WBMDTCL, subject to Government approvals.
27. Clause 6.1 of the Joint-Venture Agreement provides that following the execution of the agreement, till incorporation of JVC, 10 JVA would be managed by a steering committee consisting of 6 members and consisting of 3 executives each from WBMDTCL and JVP. The steering committee was constituted with the representatives of the respondent no.4 and the petitioner no.1
28. In the meantime the Mines and Minerals (Development and Regulation) Act was amended by insertion of section 12A(6) with effect from 12.01.2015 which provides as under-
"The transfer of mineral concessions shall be allowed only for concessions which are granted through auction.
Provided that where a mining lease has been granted otherwise than through auction and where mineral from such mining lease is being used for captive purpose, such mining lease may be permitted to be transferred subject to compliance of such terms and conditions and payment of such amount or transfer charges as may be prescribed.
Explanation- for the purposes of this proviso, the expression "used for captive purpose" shall mean the use of the entire quantity of mineral extracted from the mining lease in a manufacturing unit owned by the lessee"
29. The entire section 12A(6) has been omitted w.e.f 28.03.2021 by section 17 of the Mines and Minerals (Development and Regulation) Amendment Act, 2021. Thereafter, section 17A of the Act was also amended by insertion of section 17A(2B) which runs as follows-
"Where the Government Company or Corporation is desirous of carrying out the prospecting operations or mining operations in a joint venture with other persons, the joint-venture partner shall be selected through a competitive process, and such Government Company or Corporation shall hold more than seventy four percent of the paid-up share capital in such joint-venture"11
30. It is profitable to quote Rule 24 of the Minerals (other than Atomic and Hydrocarbon Energy Minerals) Concession Rules which came into effect from 04.03.2016-
"provided further that transfer of the mineral concession taken place or the arrangement, contract or understanding entered into with the previous consent in writing of the State Government before 12th January, 2015 i.e. the coming into force of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 shall not be liable for any action under this rule."
31. The Respondent No.4/WBMDTCL by a letter dated 17th September, 2018 cancelled the Joint Venture Agreement on the grounds that there is complete bar under section 17(2B) of the Mines and Minerals (Development and Regulation) Act, 1957 and subsequent amendment to section 12A(6) which inserted the proviso with an explanation of "used for captive purpose"
32. Let us see whether the amendments of the Act are applicable to the Joint-Venture Agreement which was executed prior to amendments of 2015 and 2016.
33. It is submitted at the behest of the respondents that subsection 6 of section 12A of the Amendment Act, 2016 is applicable in the present case. Where a mining lease has been granted otherwise than through auction and where the mined product is being used for captive purpose such mining lease may be permitted to be transferred subject to compliance of such terms and conditions and payments of such amount or transfer charges as may be prescribed. It is further submitted that clause 2(B) of section 17A provides that where a Government Company or Corporation is desirous of carrying out the prospecting operations or mining operation in a joint-venture, the joint-venture partner shall be selected through a competitive process and the Government 12 Company shall hold more than 74% of paid-up share capital in such joint-venture.
34. As per submission of learned counsel on behalf of the respondents that although joint venture agreement between the parties was executed prior to 12 th January, 2015, but the Joint Venture Company has not been formed and the respondent no.4 is trying to make Beldih Apatite Mine operational through Joint Venture Company wherein the respondent no.4 has 25% equity along with retention fee on per tonne basis.
35. Reliance has been placed on behalf of the State upon the decision rendered by the Hon'ble Apex Court in case of Manoharlal Sharma vs Principal Secretary and Others reported in (2014) 9 SCC 516 wherein Hon'ble Court observed that where the question of public exchequer are involved, the project should be only through public auction.
36. Reliance has also been placed on behalf of the respondents upon the decision rendered by the Hon'ble Apex Court in the case of Sulekhan Singh and Company and Others vs State of Uttar Pradesh and Others reported in (2016) 4 SCC 663 wherein Hon'ble Court observed interalia that no one 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 of 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.
37. We are of the opinion that the rights have already been accrued to the petitioner no.1 when the joint venture agreement was executed. We are, therefore unable to accept the submission of the learned counsel in this respect.
1338. Admittedly, the Joint-Venture Agreement (JVA) was executed on 16th August, 2014 in between the petitioner no1 and the respondent no.4. Section 12A(6) was inserted in the Act with effect from 12th January, 2015. Section 12A(6) entails that the transfer of mineral concessions shall be allowed only for concessions which are granted through auction. Proviso to section 12A (6) was introduced with effect from 6 th May, 2016 which provides that a mining lease granted other than through auction can be transferred where minerals from such mining lease is being used for captive purpose.
39. The Minerals (Other than Atomic and Hydrocarbon Energy Minerals) Concession Rules, 2016 came into effect from 4thMarch, 2016 wherein second proviso of Rule 24 was inserted as follows-
"provided further that transfer of the mineral concession taken place or the arrangement, contract or understanding entered into with the previous consent in writing of the State Government before 12th January, 2015 i.e. the coming into force of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 shall not be liable for any action under this rule"
40. Section 12A (6) was omitted with effect from 28.03.2021 and Rule 24 of the Minerals (Other than Atomic and Hydrocarbon Energy Minerals) Concession Rules, 2016 has also been omitted with effect from 02.11.2021.
41. It is profitable to quote the observation of the Hon'ble Apex Court rendered in case of Kolhapur Canesugar Works Ltd. And Another vs Union of India and Others reported in (2000) 2 SCC 536 to know the effect of omission of a provision in the statute.
42. In case of Kolhapur Canesugar Works Ltd. (supra) Hon'ble Apex Court observed at paragraph 37 interalia that-
14"The position is well known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions Section 6(1). If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is ] introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceeding shall not continue but a fresh proceeding for the same purpose may be initiated under the new provision".
43. So, we are of the view that in such a case the court is to look to the provisions in the rule which has been introduced after omission of the previous rule to determine whether pending proceedings will continue or lapse and if we find that there is a provision which says that the pending proceedings shall continue and be disposed of under the old rule as if the rule has not been deleted or omitted then such proceedings will continue. We find, the provisions made in the rule does not contain any saving clause for continuance of the proceedings initiated under the Rule which was deleted/omitted.
44. Learned senior counsel on behalf of the petitioners submitted before us that the Joint-Venture Agreement dated 16th August, 2014 contains an arbitration clause, but the said 15 agreement was executed in between the petitioner no.1 and the respondent no.4 where the Government of West Bengal is not a party. It is argued by the learned counsel that in view of the decision as laid down by the Hon'ble Apex Court in case of Harbanslal Sahania and Another vs Indian Oil Corporation Ltd. And Others reported in (2003) 2 SCC 107 the existing arbitration clause cannot stand in the way when a statutory provision is applied in a manner so as to deprive the petitioner of its legal rights under the mining agreement.
45. In the above referred case of Harbanslal Sahania (supra) Hon'ble Apex Court observed in paragraph 7 as follows-
"So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the Fundamental Rights;
(ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged [See Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC 11. The present case attracts applicability of first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings".16
46. In view of observation made above by the Hon'ble Apex Court that the existing arbitration clause cannot stand in the way when a statutory provision is applied in a manner as to deprive the petitioner of its legal rights. We are of the opinion that alternative remedy is not bar to the invocation of the writ jurisdiction of this court even when arbitration clause is embodied in the agreement between the parties. This court is within its competence to entertain the writ petition filed on behalf of the petitioners.
47. In the case of Assistant Excise Commissioner, Kottayam and Others vs Esthappan Cherian and Another reported in (2021) 10 SCC 210 Hon'ble Apex Court observed in paragraph 14 interalia that-
"There is profusion of judicial authority on the proposition that a rule or law cannot be construed as retrospective unless it expresses a clear or manifest intention, to the contrary. In Commissioner of Income Tax v Vatika Township this court, speaking through a Constitution Bench, observed as follows:
"31. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not f.no. 1 (2015) 1 SCC 1 tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bed rock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lexprospicit non respicit : law looks forward not backward. As was observed in Phillips vs. Eyre[3], a retrospective legislation is contrary to the general principle that legislation by 17 which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.
32. The obvious basis of the principle against retrospectivity is the principle of 'fairness', which must be the basis of every legal rule as was observed in the decision reported in L'OfficeCherifien des Phosphates v. Yamashita-Shinnihon Steamship Co.Ltd[4]. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later."
48. In case of Sree Sankaracharya University of Sanskrit and Others vs Dr. Manu and Another reported in 2023 SCC On Line Supreme Court 640 Hon'ble Apex Court clarified whether amendments, explanations of any previous law whether prospective or retrospective in nature.
49. In above referred case of Sree Sankaracharya University of Sanskrit (supra) an appeal was filed by the University challenging the judgement passed by the Kerala High Court wherein the University's appeal was dismissed and the University/Appellant was directed to grant two advance increments to the respondents no. 1 and 2. The Hon'ble Apex Court affirmed the impugned judgements by saying that if a statute is curative or merely clarificatory of the previous law retrospective operation 18 thereof may be permitted and that an explanation/clarification may not expand or alter the scope of the original provision.
50. The following principles have been culled out by the Apex Court as follows-
i) If a statute is curative or merely clarificatory of the previous law, retrospective operation thereof may be permitted.
ii) In order for a subsequent order/provision/amendment to be considered as clarificatory of the previous law, the pre-amended law ought to have been vague or ambiguous. It is only when it would be impossible to reasonably interpret a provision unless an amendment is read into it, that the amendment is considered to be a clarification or a declaration of the previous law and therefore applied retrospectively.
iii) An explanation/clarification may not expand or alter the scope of the original provision.
iv) Merely because a provision is described as a clarification/explanation, the Court is not bound by the said statement in the statute itself, but must proceed to analyse the nature of the amendment and then conclude whether it is in reality a clarificatory or declaratory provision or whether it is a substantive amendment which is intended to change the law and which would apply prospectively.
51. So, any legislation having the force of law which is clarificatory or explanatory in nature and purport and which seeks to clear doubts or correct an obvious omission in a statute, would generally be retrospective in operation. So, the court has to determine whether the said amended law was a clarification or a substantive amendment in order to identify whether it would be applicable retrospectively or not.
1952. Admittedly, the joint venture agreement was executed on 16th August, 2014 and following the agreement a steering committee was constituted on 10th September, 2014. Section 12A (6) came into force with effect from 12th January, 2015 which stipulates that the transfer of mineral concession shall be allowed only for concessions which are granted to auction. Thereafter a proviso was inserted to that section which provided that a mining lease granted other than through auction can be transferred the minerals from such mining lease is being used for captive purpose.
53. A second proviso was inserted in Rule 24 of the Minerals (Other than Atomic and Hydrocarbon Energy Minerals) Concession Rules, 2016 which entails as follows -
"Provided further that transfer of the mineral concession taken place or the arrangement, contract or understanding entered into with the precious consent in writing of the State Government before 12th January, 2015 i.e. the coming into force of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 shall not be liable for any action under this rule."
54. Section 12A (6) was omitted with effect from 28.03.2021 and Rule 24 of Minerals (Other than Atomic and Hydrocarbon Energy Minerals) Concession Rules, 2016 was also omitted with effect from 02.11.2021. It is clear to us that the Joint Venture Agreement was executed prior to amendments of 2015 and 2016. There is no such words in Section 17A (2B) of the Act which can be said clarificatory or explanatory in nature and purport and which seeks to clear doubts or correct an obvious omission in a statute. So, we are of the opinion that Section 17A (2B) of the Act is not applicable in the present case. Moreover, Section 17A (2B) is applicable for the reserve area and the purpose of conservation and as per section the Central Government may in consultation with the State, Government reserve any area not already held under any 20 prospective license or mining lease but the Beldih Apatite Mine is not a result area and so there is no applicability of section 17A (2B) in this case.
55. Mr. Jishnu Saha, learned Senior Counsel for the appellants submitted that every legislation enacted by the legislature is intended to operate prospectively unless the legislature intended it to operate retrospectively or seemingly to be so shown by necessary implication. It was contended by learned Counsel that the operation of an amended Section shall be from the date when it is brought into a substantive Act and cannot operate retrospectively to vary the terms and conditions of the agreement to the disadvantage of the appellants.
56. The position in law with regard to the operation of an Act retrospectively or prospectively has been succinctly highlighted by a three-Judge Bench of the Supreme Court in the case of Income Tax Officer, Allepply vs. M.C. Ponnoose and Others reported at (1969) 2 SSC 351, as follows:-
" 5. Now it is open to a sovereign Legislature to enact laws which have retrospective operation. Even When the parliament enacts retrospective laws such laws are in the words of Willes, J., in Phillips V. Eyre - "no doubt prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law." The courts will not, therefore, ascribe retrospectively to new laws affecting rights unless by express words or necessary implication, it appears that such was the intention of the Legislature. Parliament can delegate its legislative power within the recognized limits. Where any rule or regulation is made by any person or authority to whom such 21 powers have been delegated by the Legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the Courts that the persons or authority exercising subordinate legislative functions cannot make a rule, regulation or by-law which can operate with retrospective effect; (see Subha Rao, J., in Dr Indramani Pyarelal Gupta v. W.R. Nathu, the majority not having expressed any different opinion on the point: Modi Food Products Ltd. V. Commissioner of Sales Tax, U.P. India Sugar Refineries Ltd. V. State of Mysore and General S. Shivdev Singh v. State of Punjab.)"
57. In the case of Indian Administrative Service (S.C.S) Association, U.P and others v. Union of India and Others reported in 1993 Supp (1) SSC 730, it was held:-
"7. No statute shall be construed so as to have retrospective operation unless its language is such as plainly to require such a construction. The Legislature, as its policy, gives effect to the statute or statutory rule from a specified time or from the date of its publication in the State Gazette. It is equally settled law that Court would issue no mandamus to the Legislature to make law much less retrospectively. It is the settled canons of construction that every word, phrase or sentence in the statute and all the provisions read together shall be given full force and effect and no provision shall be rendered surplusage or nugatory. It is equally settled law that the mere fact that the result of a statute may be unjust, does not entitle the Court to refuse to give effect to it. However, if two reasonable interpretations are possible, the Court would adopt that construction which is just, reasonable or sensible. Courts cannot substitute the words or phrases or supply casus omissus. The Court could in an 22 appropriate case iron out the creases to remove ambiguity to give full force and effect to the legislative intention. But the intention must be gathered by putting up fair construction of all the provisions reading together. This endeavour would be to avoid absurdity or unintended unjust results by applying the doctrine of purposive construction."
58. The origin, concept and the principles relating to the applicability of any legislation from a prospective or retrospective date has been elaborately discussed by the Hon'ble Apex Court in the case of Commissioner of Income Tax (Central) - I , New Delhi v. Vatika Township Private Limited reported in (2015)1 SSC 1 in the follows:-
"28. Of the various rules guiding how a legislation has to be interpreted one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This Principle of law is known as lexprospicit non respicit: law looks forward not backward. As was observed in Phillips v. Eyre, a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.
29.The obvious basis of the principle against retrospectivity is the principle of "fairness" which must be the basis of every legal rule 23 as was observed in L'OfficeCherifien des Phosphates v. Yamashita- Shinnihon Steamship Co. Ltd. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later."
59. Similar principles have been reiterated in a subsequent judgment of Hon'ble Apex Court in the case of G.J. Raja Vs. Tejran Surana reported in (2019) 19 Supreme Court Cases 469 to the effect that one of the cardinal principles of determining whether the Act operates prospectively or retrospectively is the intention of the legislature and if it is found that the intention is laudable, manifest and clearly discernible from the language employed therein, the said legislation would operate retrospectively. In the absence of such intention, it is always presumed that the Act would operate prospectively as was held by the Hon'ble Apex Court at Paragraph 14 of the judgment, as follows:-
"14. While considering general principles concerning "retrospectivity of legislation" in the context of Section 158-BE inserted in the Income Tax Act, 1961, it was observed by this Court in CIT v. Vatika Township (P) Ltd. As under : (SSC pp. 21-22, para 28)
28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a 24 retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lexprospicit non respicit: law looks forward not backward. As was observed in Phillips v. Eyre, a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law."
60. So, we are of the opinion that law enacted by the competent authority is always presumed to operate prospectively unless expressly intended to operate retrospectively or by necessary implication. The concept of prospective operation is to avoid the things done in the past to be rendered undone. It is also based on the common notion that law must always look forward and not backwards and the things which have been settled in the past within the framework of legislative provision should not ordinarily be taken away or rendered illegal or unsettled except undue compelling circumstances.
61. We are not unmindful of the proposition of law that unless a contrary intention appears, a legislation is presumed not to be intended to have retrospective operation. The principle of law is known as lexprospicit non respicit meaning thereby the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. As was observed in Phillips vs. Eyre (1870) LR 6 QB 1, a retrospective legislation is contrary to 25 the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then-existing law. The basis of the principle against retrospectivity is the principle of fairness, which must be the basis of every legal rule.
62. Perhaps no rule of construction is more firmly established than thus - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.
63. In view of the above we have no hesitation in holding that in the absence of express statutory authorisation delegated legislation in the form of rules or regulations, cannot operate retrospectively.
64. Accordingly, there will be an order in terms of prayer (a) of the writ petition which reads as follows:-
" (a) A writ of and/or in the nature of Mandamus do issue commanding the respondent authorities, their men, agents, officers, employees, associates and each of them to withdraw, cancel, recall and/or rescind the notice bearing No. MDTC/P-46/Part-II/2/952 dated 17th September, 2018, forthwith;"
The respondent no. 4 shall take a fresh decision in the matter in the light of the observations made in this judgment and order. Such decision shall be taken in accordance with law, within 8 weeks from date and the decision must be supported with cogent reasons. Opportunity of hearing shall be granted to the appellants or their authorised representative prior to taking the decision.
2667. The appeal and the writ petition stand disposed of.
68. Urgent Photostat certified copies of this order, if applied for, be made available to the parties subject to compliance with requisite formalities.
I agree.
(PRASENJIT BISWAS, J.) (ARIJIT BANERJEE, J.)