Rajasthan High Court - Jaipur
M/S Emami Cement Ltd vs U O I And Ors on 1 September, 2021
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 360/2017
M/s NU Vista Limited having its registered office at Acropolis,
15th Floor, 1858/, Rajdanga Main Road, Kasba, Kolkata-700107
through its Power of Attorney Holder, Shri Kanak Kumar
Chhangani Son of Shri K.L. Chhangani aged 44 years, presently
posted as Vice President mines NU Vista Limited (Formerly M/s
Emami Cement Ltd.) Resident of Nahta Street Near Jain Temple
Falaudi, Jodhpur-342301.
----petitioner-company
Versus
1. Union Of India through Secretary, Ministry of Mines, De-
partment of Mines, Shastri Bhawan, Dr.Rajendra Prasad
Marg, New Delhi- 110 001.
2. State Of Rajasthan through Secretary, Mines Department,
Government Secretariat, Jaipur.
3. Joint Secretary, Mines (Gr.2) Department, Government
Secretariat, Jaipur.
4. Director, Department Of Mines & Geology, Rajasthan,
Shastri Circle, Udaipur.
5. Controller General, Indian Bureau Of Mines, II Floor, In-
dira Bhawan, Nagpur-440 001.
----Respondents
For petitioner-com- : Mr. Kamlakar Sharma, Sr. Adv. with pany(s) Ms.Alankrita Sharma & Mr.Madhusudan Singh Rajpurohit For Respondent(s) : Mr. R.P. Singh, AAG with Mr.Jaivardhan Singh Shekhawat HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Order RESERVED ON 16.08.2021 PRONOUNCED ON 01/09/2021 (Downloaded on 04/09/2021 at 09:11:30 PM) (2 of 12) [CW-360/2017]
1. With the consent of the parties, the writ petition was heard finally and the order was reserved. The written submissions have been filed on behalf the petitioner-company herein.
2. Brief facts of the case are that an area was notified by the State Government on 12.02.2013 for establishment of a Cement Plant and applications were invited from 52 applicants for grant of mining leases of Cement Grade Limestone for over 989.50 hectares of land including petitioner-company-NU Vista Limited (formerly known as M/s Emami Cement Limited). The petitioner- company has stated that the requisite fee and the site plan were submitted and a letter was circulated for giving opportunity of personal hearing to decide priority of the applicants in terms of Section 11(3) and (4) of the Mines and Mineral (Development and Regulation) Act, 1957 (hereinafter referred to as "the MMDR Act, 1957"). The petitioner-company was only applicant who had given consent for grant of mining lease in the notified block of 989.50 hectares near village Lasdavan-Javda, Tehsil Nimbhaheda, District Chittorgarh and accordingly priority was given to the petitioner-company and communicated vide letter dated 31.12.2014.
3. The petitioner-company has submitted that a Letter of Intent ("LoI") was accordingly issued on 31.12.2014 in favour of the petitioner-company. It is stated that as per LoI, a bank guarantee of Rs.18 crore was submitted to the Assistant Mining Engineer on 20.01.2015. The Assistant Mining Engineer has thereafter conducted demarcation of area between 12 th and 15th March, 2015 and out of total notified area of 989.50 hectares, 50.038 hectares fell under four separate quarry leases. The mining plan was submitted on 12.08.2015 accordingly for an area of 939.462 (Downloaded on 04/09/2021 at 09:11:30 PM) (3 of 12) [CW-360/2017] hectares in August, 2015. It is stated that mines inspection was also conducted for the said area.
4. The petitioner-company had also requested the respondents to initiate change/amendment in the area of LoI. The petitioner- company's mining plan was not approved due to difference in actual area applied i.e. 939.462 hectares instead of 989.50 hectares as given out in LoI. The Government of Rajasthan later on cancelled the LoI vide letter dated 27.10.2015.
5. A revision petition was filed before the Central Government, Department of Mines wherein vide order dated 20.12.2016, the order of cancellation of LoI was set aside by the revisional authority taking into consideration that in identical matters relating to the case of Wonder Cement, the cancellation order had been set aside. The petitioner-company thereafter submitted a letter of compliance with the LoI and also further requested for correction of area under the LoI. The Director, Mines and Geology sent a letter to amend the area of LoI from 989.50 hectares to 939.462 hectares including the area which fell under four separate quarry leases. Accordingly, a revised mining plan was submitted on 27.12.2016.
6. Since the State Government did not issue amended LoI and did not grant mining lease as per mining plan, the present writ petition has been filed by the petitioner-company with the prayer to direct the respondents to amend the LoI for an area ad- measuring 939.462 hectares after deleting the area of 50.038 hectares which was reserved for four quarry leases and further direct to grant mining lease and execute the same accordingly as per mining plan submitted for 939.462 hectares. It was also prayed that LoI should not be treated as lapsed/rejected on (Downloaded on 04/09/2021 at 09:11:30 PM) (4 of 12) [CW-360/2017] account of time limit under Section 10A(2)(c) of the MMDR Act, 1957 as amended w.e.f. 12.01.2017 treating the period from 27.10.2015 to 20.12.2016 to be excluded while the revision petition was pending.
7. Learned counsel for the petitioner-company has also pointed that a PIL was filed before this Court wherein it has been alleged that four cement blocks had been wrongly granted to M/s. Wonder Cement Ltd., M/s. Shree Cement Ltd. and Lapharge Cement however the High Court vide order dated 12.05.2015 taking into consideration all the aspects found that there is no material to show that the allotment of cement grade blocks to the petitioner- company and other respondents therein, has caused any loss to the Government and PIL was dismissed summarily thus there was no occasion to deny issuance of mining lease to the petitioner- company once the order was passed by the revisional authority on 20.12.2016. The reference made by the Lokayukta had become redundant in terms of judgment passed by the High Court. It is also submitted that the name of the petitioner-company M/s Emami Cement Limited has been changed to M/s. NU Vista Limited vide Certificate of Incorporation dated 4 th June, 2020 issued by the Registrar of Companies, Kolkata and this Court has already allowed the change of name to be taken on record. The amended keenness money bank guarantee of Rs.18 crore in the new name of company has also been submitted on 06.11.2020.
8. The Court passed an order on 11.01.2017 holding as under:
"Having heard learned counsel for the parties and in totality of the circumstances, this court therefore finds that matter requires consideration but does not deem it appropriate to direct the State Government by way of interlocutory order, to (Downloaded on 04/09/2021 at 09:11:30 PM) (5 of 12) [CW-360/2017] sanction/grant of mining lease notwithstanding the fact that the State Government had, in a Public Interest Litigation filed before this court being D.B. Civil (PIL) Writ Petition No.5940/2015 - Ram Singh Kaswan Vs.Union of India and Others, decided by judgment dated 12.05.2015,taken the stand that absolute transparency was maintained while issuance of the Letter of Intent. The stand of the State Government that they will wait for conclusion of the investigation of the enquiry by the Lokayukta till they have any final view of the matter of remand, cannot be said to be unjust. Even then, all these issues will have to be decided after full-fledged reply is filed by the State Government.
However, what would be the effect of the sun set clause contained in Section 10A(2)(c) of the Mines & Minerals (Development and Regulation) Amendment Act, 2015, would be decided after the rights of the parties are determined upon the State Government filing its final reply to the writ petition. It is however made clear that the passing of cut off date may not prejudice the interest of the petitioner-company, if eventually it is able to make out a case for issuance of appropriate mandamus/direction, when writ petitions is finally decided.
The writ petition is therefore admitted to hearing. However, the application for stay is disposed off with the aforementioned observations. Matter be listed for final hearing on 03.04.2017. In the meantime, reply to the writ petition may be filed by the respondent-State."
9. Reply to the writ petition has been filed wherein it is stated that the mining plan could not be accepted as the area was notified by the State Government for four quarry leases. It was also stated that until an amended LoI with reduced area is issued, the mining plan cannot be approved. The respondents have further stated that since enquiry was pending before the Lokayukta with regard to the issuance of mining lease in relation to all the applicants, the mining lease was not issued to the (Downloaded on 04/09/2021 at 09:11:30 PM) (6 of 12) [CW-360/2017] petitioner-company. It was also pointed out that some area in the mining lease was also "Chargah land".
10. Learned counsel for the respondents on the basis of aforesaid facts, has stated that case of the petitioner-company cannot be distinguished from that of M/s. Wonder Cement Vs. State of Rajasthan and that of M/s. Shree Cement Limited Vs. State of Rajasthan as well as the judgment passed by the Division Bench in the case of "The State of Rajasthan & Ors. Vs. Ojaswi Marbles Ltd. & Ors.", D.B. Special Appeal (Writ) No.301/2021, decide on 08.07.2021 wherein it was held that the sun set clause under Section 10A(2)(c) would not be applicable where LoI has already been issued.
11. Learned counsel further submits that while in other cases, this Court had already directed the respondents to issue mining leases in the area for which they had applied, the petitioner- company's case could not be heard with the said cases and the mining lease has already been executed in favour of those applicants.
12. Learned counsel further submits that the petitioner-company has already given an undertaking that they would not be operating mining lease in the area which is found to be Charagah land and the mining operations would not be done in the area which is already marked as four quarry leases ad-measuring 50.038. In fact, when it was found that there are four separate quarry leases, the petitioner-company requested the respondents to reduce the LoI for 939.462 hectares of land instead of 989.50 hectares which was originally issued and the petitioner-company had submitted mining plan for the area of 939.462 hectares of land. However, in spite of having sent the letter by the Director, Mines & Geology for (Downloaded on 04/09/2021 at 09:11:30 PM) (7 of 12) [CW-360/2017] issuance of a revised notification, the State Government has not issued the revised notification and resultantly, while the petitioner- company had already deposited the amount as keenness money bank guarantee of Rs.18 crore, the mining lease has not been issued to the petitioner-company.
13. Since the order of the revisional authority has attained finality and the original LoI stands revived, it is stated that as per original LoI, the petitioner-company is ready to leave the area of four separate quarry leases of 50.038 hectares and the respondents be directed to issue a mining plan for the remaining area of 939.462 hectares alone on the basis of original LoI itself. The petitioner-company has also given an undertaking that they will not conduct mining operations on the "Charagah land" as given out in the case of M/s. Wonder Cement Limited Vs. State of Rajasthan & ors. (SB Civil Writ Petition No.126/2017 and in the case of M/s. Shree Cement Limited Vs. State of Rajasthan & ors. (SB Civil Writ Petition No.128/2017.
14. Learned Additional Advocate General appearing for the respondents submits that although judgments have been passed in M/s.Shree Cement Limited (supra) and M/s. Wonder Cement Limited (supra), the department has not proceeded as no undertaking has been given by the petitioner-company not to conduct mining operations in the area already falling under the four separate quarry leases i.e. 50.038 hectares and for the "charagah land" which is found in different areas of the total remaining 939.462 hectares.
15. I have considered the submissions.
16. In Shree Cement Ltd. Vs. State of Rajasthan & Ors. (supra), decided by this court on 26.09.2018 relied by this Court taking (Downloaded on 04/09/2021 at 09:11:30 PM) (8 of 12) [CW-360/2017] into consideration the law relating to the charagah land and the judgment passed in the case of M/s. Wonder Cement Ltd. (supra) and after perusing the entire record, this Court reached to the conclusion as under:
"37. It is also noticed from the records that so far as M/s Wonder Cements Limited is concerned, the mining lease had already been granted in terms of the order passed by this Court in their favour. 36. From the records of the Government, it is also noticed that the Collector, vide letter dated 15/09/2017 has intimated to the Revenue Department of setting apart equivalent land of 1.17 hectares as 'Charagah' land falling in the mining area mentioned in the LOI of the petitioner-company. The same has been done in terms of new proviso added to Rule 7 of the Rajasthan Tenancy Rules, 1955, as above.
38. Taking into consideration the aforesaid factors, this Court answers the first issue in favour of petitioner-company and holds that the petitioner-company was entitled for grant of mining lease and for issuing directions for execution of mining lease in respect of 'Charagah' land falling in the mining lease area upto 2.5 hectares.
39. This Court has already noticed that 'Charagah' land of 2.5 hectares has been set apart vis-a-vis other land by the Collector vide letter dated 15/09/2017. The map submitted by the petitioner-company for mining area also excludes 2.5 hectares of 'Charagah' land.
40. As regards the second issue regarding the fact of sun set clause, in view of the judgment passed by the coordinate Bench of this Court at Principal Seat, Jodhpur on 18/09/2017 in SB Civil Writ Petition No.2414/2016 (Shree Cement Limited Vs. UOI & ors.), which has not been further challenged by the respondents, the limitation under Section 10A(2)(c) could not apply and such an objection raised again by the respondents in the present writ petition is not acceptable and the same is (Downloaded on 04/09/2021 at 09:11:30 PM) (9 of 12) [CW-360/2017] rejected. The second issue is accordingly answered in favour of the petitioner-company.
41. Thus, before the cut-off date, since all the conditions had been fulfilled, the State was obligated to issue the grant of lease and the date 11/01/2017 would not affect as the State Government or its authorities cannot be allowed to take advantage of their own fault in delaying the decision. A party cannot be subject to suffer on account of the fault or inaction on the part of the other side. Thus viewed, the umbrage of Section 10A(2)(c) can not be taken by the respondents. In the opinion of this Court, the case of the petitioner-company-Shree Cement Limited is similar to that of M/s. Wonder Cements Limited so far as the question relating to Section 10A(2)(c) and 'Charagah' land falling in mining lease area is concerned. Admittedly, the LOI of M/s Wonder Cements Limited was issued prior to the sun set date mentioned in Section 10A(2) (c) i.e. 11/01/2017 while the writ petition was allowed on 23/08/2017 after the cut-off date and the lease has been granted on 03/04/2018. The decision to grant lease has been taken in the Cabinet Meeting. Thus, Section 10A(2)(c) conditions of treating the pending application of having lapsed after two years of the amendment has not come in the way of M/s Wonder Cements Limited. Even otherwise, Section 10a(2)(c) conditions cannot be applied in the case of the petitioner-companys as all the conditions of the LOI stood fulfilled by the petitioner-company as has been accepted by the Director of Mines and Geology in its letter dated 13/10/2016.
42. As regards the third issue, it is noticed that the case of the petitioner-company is found to be similar to that of M/s Wonder Cements Limited. The 'Charagah' land in the case of M/ s Wonder Cements Limited was a larger chunk of 40.62 hectares whereas in the case of the petitioner-company , the 'Charagah' land falling in the lease area is only 2.5 hectares and it has come on record that the mining lease plan submitted does not include the said area of 2.5 hectares. The conditions of the land not falling in 'Charagah' land was not part of the LOI conditions. In terms of the proviso added to Rule 7, the Collector has already (Downloaded on 04/09/2021 at 09:11:30 PM) (10 of 12) [CW-360/2017] set apart equivalent land in terms of the aforesaid amendment as is apparent from the letter dated 15/09/2017 which is on record in the Government file. Accordingly, the respondents are directed to grant mining lease to the petitioner-company in terms of the LOI and execute mining lease in favour of the petitioner- company. The exercise for the said purpose shall be conducted within a period of two months."
17. It is informed that the aforesaid judgment passed by this court has attained finality.
18. In D.B. Special Appeal (Writ) No.301/2021, "The State of Rajasthan & Ors. Vs. Ojaswi Marbles Ltd. & Ors.", decided by the Principal Seat at Jodhpur on 08.07.2021, the Division Bench noticed submissions of learned Additional Advocate General that amendment made under the MMDR Act vide Notification dated 20.03.2021 would not cover the cases where applications have been moved much earlier and LoI having been issued much earlier and observed as under:
"After hearing learned counsel for the respective parties and taking into consideration the submissions advanced by the learned counsel representing the parties, we are of the considered view that the interim orders passed by this Court on 09.01.2017 are absolutely in order and in consonance with law. We find no justification in entertaining any challenge thereto and we also affirm the subsequent order dated 18.03.2021 by which the application seeking vacation of the interim order dated 09.01.2017 has come to be rejected.
We make it clear that the State shall execute the mining lease in favour of the private respondent (writ petitioner- company) within a period of 15 days from today. The mining lease shall reflect that it shall be given effect to on or before 11.01.2017 (the cut-off date). By way of mention, we may indicate here that grant of mining lease by itself will not (Downloaded on 04/09/2021 at 09:11:30 PM) (11 of 12) [CW-360/2017] enable the respondent (writ petitioner-company) to commence mining operations without complying with the conditions mentioned in the Letter of Intent as well as the conditions imposed by the Union of India in its approval and FC clearance granted to the private respondent (writ petitioner- company) under Section 2(iii) of the Forest (Conservation) Act, 1980."
19. In the present case, this Court finds that apart from "charagah land" falling in some areas, there are four quarry leases of area of 50.038 hectares which is falling within the demarcated area as notified by the State Government of 989.50 hectares. Thus, this Court holds that area available for mining plan to be submitted by the petitioner-company shall be only for 939.462 hectares and accordingly, the respondents would be required to issue a mining lease for an area of 939.462 hectares alone treating the LoI to be reduced accordingly. The petitioner- company shall also give an undertaking of not carrying out any mining activity in the "charagah land" which may fall in the mining area.
20. Based on the letter sent by the Director, Mines and Geology, the writ petition deserves to be allowed and it is held that action of the respondents in not issuing mining lease was unjustified and time period in taking over possession by the petitioner-company for the purpose of computation of commencement of production and dispatch as required under Section 4(A) of the Act of 2021 shall be treated as not to be counted i.e. shall be treated as dies non and the prayer in this respect made by learned Senior Counsel for the petitioner is accepted.
21. Accordingly, the writ petition is allowed. The respondents shall proceed and release the mining lease and approve the (Downloaded on 04/09/2021 at 09:11:30 PM) (12 of 12) [CW-360/2017] mining plan, as directed hereinabove, in favour of the petitioner- company within a period of one month.
22. All pending applications shall also stand disposed of.
(SANJEEV PRAKASH SHARMA),J FATEH RAJ BOHRA /6 (Downloaded on 04/09/2021 at 09:11:30 PM) Powered by TCPDF (www.tcpdf.org)