Madhya Pradesh High Court
Smt. Prabha Sharma vs The State Of Madhya Pradesh on 20 January, 2020
Author: Sheel Nagu
Bench: Sheel Nagu
1
The High Court Of Madhya Pradesh
WP-19690-2019
(Smt. Prabha Sharma Vs State of M.P. & Others)
Gwalior, Dated: 20.01.2020
Shri Arvind Dudawat, learned counsel for the petitioner.
Shri Ankur Mody, learned Additional Advocate General for the
respondents/State.
Petitioner in this petition under Article 226/227 of the Constitution of India prays for following reliefs :
(i) Issuing an appropriate writ or order or direction, thereby directing the respondents no.2 & 3 to execute the quarry lease pursuant to the order dated 03.01.2019 (Annexure P/5), forthwith.
(ii) Passing any other order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
(ii) Cost of the petition may also be awarded to the petitioner.
2- Without challenging any specific order, writ of mandamus is sought to be invoked against respondents No.2 & 3 directing them to execute quarry lease pursuant to the order of Director Geology and Mining, Madhya Pradesh dated 03.1.2019 sanctioning grant of quarry lease for extraction of stones for making gitti by mechanical crushing (i.e. use of crusher) as specified in Item 6 of Schedule I over an area of 4.000 hectares within survey No.1354 (being government land) village Kharag, Tahsil and District Datia, with effect from 14.9.2017 for a period of 10 years, subject to certain conditions contained therein. 3- The grievance of learned counsel for the petitioner is that all the 2 The High Court Of Madhya Pradesh WP-19690-2019 (Smt. Prabha Sharma Vs State of M.P. & Others) necessary formalities under the Madhya Pradesh Minor Mineral Rules, 1996 ("1996 Rules" for brevity) have been complied with by the petitioner pursuant to Annexure P-5 but the official respondents, specially respondents No.2 and 3 are not executing the lease deed. 4- Before entering into the prolixity of factual matrix involved, it would be apt to straightaway refer to Rule 26 of 1996 Rules, which in entirety is reproduced below :-
"26. Lease to be executed within three months. - Where a quarry lease is granted or renewed, the lease deed in Form VII shall be executed and registered under the Indian Registration Act, 1908 (No. 16 of 1908) within three months of the order of sanction of the lease and if no such lease is executed within the aforesaid period, the order sanctioning the lease shall be deemed to have been revoked:
Provided that where the Sanctioning Authority is satisfied that the applicant is not responsible for the delay in the execution of the lease deed, the Sanctioning Authority may permit the execution of the lease deed after the expiry of the aforesaid period of three months."
5- A bare reading of aforesaid Rule 26 of 1996 Rules discloses that if grant or renewal of quarry lease is not followed by execution and registration of the lease deed in Form VII, Appendix to the 1996 Rules within a period of three months from the date of sanction of the lease, the order of sanction would suffer deemed revocation. 6- In the instant case, order of grant of quarry lease was passed vide Anneuxre P-5 on 03.1.2019 and admittedly the lease deed has yet not been executed much-less registered. Admittedly, the period of three months has expired, and therefore, deemed revocation clause has 3 The High Court Of Madhya Pradesh WP-19690-2019 (Smt. Prabha Sharma Vs State of M.P. & Others) already come into effect from 3.4.2019 unless the proviso to Rule 26 can become a savior.
7- The proviso to Rule 26 confers jurisdiction on the sanctioning authority to condone the delay caused in execution of lease deed if the reason for delay is not attributed to the applicant. The sanctioning authority thus is empowered to execute lease deed even after expiry of period of three months provided the proviso is satisfied. 8- In the instant case, the petitioner has averred in this petition that he has promptly completed all the legal formalities/obligations, but the reply of the State is silent in this regard, and therefore, the said acquiescence on the part of State and its functionaries can safely be treated as an admission of the fact that the delay in execution and registration of lease deed is for the reasons not attributed to the petitioner.
9- The reply of the State squarely relies upon the decision of Coordinate Bench of this Court rendered at Indore on 27.06.2019 in W.P. No.6215/2019 (Prathvi Infrastructure Pvt. Ltd. vs. State of M.P. and others) wherein it is submitted that the said Coordinate Bench dealt with a case involving similar factual matrix in respect of same minor mineral as involved herein, passed the following directions :-
In light of the aforesaid order also and the judgments referred above of the Hon'ble the Supreme Court, the safest course is to direct the State Government to conduct a process of auction, which is also provided under the rules, the writ petition is disposed of with the 4 The High Court Of Madhya Pradesh WP-19690-2019 (Smt. Prabha Sharma Vs State of M.P. & Others) following directions:-
(A) The respondent/State shall conduct an auction in respect of the quarry in question as quarry relates to a mineral which is at item no.3 schedule 2 appended the MP Minor Mineral Rules, 1996. The process of auction be initiated within the period of four weeks from today. (B) The Respondent/State in future also in respect of mines for making Gitti shall conduct an open auction and no mining lease shall be granted without conducting an open auction. (C) Keeping in view three different order passed from time to time by the same authority and also keeping in view the inquiry report submitted by the Inspector General of Police, as it is a serious matter, it requires a thorough probe by Economic Offences Wing. The Director General of Economic Offences Wing will investigate the matter right from the stage of application submitted by the petitioner for allotment of quarry lease, the order passed by the Director, Mining also the order passed in appeal and shall proceed ahead in accordance with law against the officers of department and against the persons who are involved in the matter. The State government through the Chief Secretary, shall also look into the matter and in case arrives at the conclusion to hold a departmental inquiry, shall be free to do the same in accordance with law.
(D) The Chief Secretary, State of MP is directed to conduct a preliminary inquiry in the matter with due opportunity to the persons concerned and thereafter, to proceed ahead with the departmental inquiry against the officers involved in the matter, in case any material is found against them, in the preliminary inquiry. The exercise of conducting the entire inquiry by the Chief Secretary be concluded within the period of three months from today and also the Director General of Economic Offences Wing shall conclude his investigation as expeditiously as possible preferably within the period of three months from today.
With the aforesaid, the present petition stands disposed of. 10- Pertinently, the State further informs that aforesaid order dated 5 The High Court Of Madhya Pradesh WP-19690-2019 (Smt. Prabha Sharma Vs State of M.P. & Others) 27.06.2019 was again put to test, by way of R.P. No. 1051, 1270 and 1271/2019 before the same Bench of this Court at Indore which were finally decided on 08.11.2019 partly modified the order dated 27.06.2019 to the following extent :
5. After hearing learned counsel for the parties, this Court is of the opinion that for private land, a separate procedure is prescribed under the Rules. The order passed by this Court for conducting auction/issuing NIT in respect of private land deserves to be modified.
Resultantly, it is made clear that in respect of land which is under the exclusive title of a private person, the provisions of Rule 6, 9 & 18 shall be followed. It is further clarified that in case the land is owned/controlled by any local body, Gram Panchayat or any other instrumentality of State or the State, it shall not be treated as private land. Only that land which is vesting in a private person shall be subject to Rules 6, 9 & 18.
6. It has also been argued by the learned counsel Shri Tiwari that certain applications in respect of government land are at the verge of renewal and are at the verge of finalisation. In the considered opinion of this Court, in respect of government land, the question of grant of mining lease/renewal without conducting a process of auction/issuing NIT does not arise and, therefore, the judgment delivered by this Court dated 27/06/2019 shall also be applicable in respect of renewal as well as in respect of pending applications in case they are in respect of government land.
7. Learned counsel Shri Tiwari has also argued before this Court that the Central Govt. has framed Rules in exercise of powers conferred under Section 13 of the Mines and Mineral (Development and Regulation) Act, 1957 known as Mineral (Auction) Rules 2015 and Rule 3 provides that the Rule shall apply to all minerals, except minerals notified as minor minerals specified in clause (e) of Section 3. In the State of Madhya Pradesh, we are having rules, which provides for a process of auction in respect of Gitti and in that backdrop, the judgment was delivered by this Court and, therefore, the Auction Rules 6 The High Court Of Madhya Pradesh WP-19690-2019 (Smt. Prabha Sharma Vs State of M.P. & Others) 2015 does not help to the petitioners.
8. The another point which requires consideration as prayed by the State Govt. is that this Court has directed two parallel inquiries, one by the Chief Secretary and one by the Economic Offences Wing. It has been pointed out by the learned Additional Advocate General that the Chief Secretary has already started an inquiry and, therefore, it is further clarified that the Chief Secretary shall be free after concluding an inquiry to take appropriate action in accordance with the law. In case he arrives at a conclusion that any crime is committed, he will be free to refer it to the appropriate investigating agency. In case he arrives at a conclusion that a departmental action is to be taken into the matter, he will be free to do so.
9. In light of the aforesaid, the direction in respect of a parallel inquiry/investigation by Economic Offences Wing is accordingly deleted. The Chief Secretary shall be free to take a final decision in the matter in accordance with law.
10. With the aforesaid, the present review petitions stand disposed off.
11- A conjunctive reading of the order dated 27.06.2019 and the subsequent order dated 08.11.2019 of the Indore Bench reveal that the foundational order dated 27.06.2019 was kept intact barring observation that the order dated 27.06.2019 would apply to land owned/controlled by the State, instrumentalities of the State, Gram Panchayat, local body etc but not owned by private individuals. 12- Learned counsel for the State relying upon the foundational decision dated 27.06.2019 of the Coordinate Bench submits that Coordinate Bench of this Court at Indore made it mandatory for the State to transfer right to quarry stone for making gitti by mechanical 7 The High Court Of Madhya Pradesh WP-19690-2019 (Smt. Prabha Sharma Vs State of M.P. & Others) crushing (i.e. use of crusher) only by way of open auction and since the grant made in favour of the petitioner vide Annexure P-5 did not involve process of auction, the Respondents rightly declined to execute the lease deed.
13- Testing the factual matrix attending the present case and the response of the State on the anvil of the provisions of 1996 Rules, it is seen that the grant of quarry lease in respect of stone for making gitti by mechanical crushing (i.e. use of crusher) finds mention at Item No.6 of Schedule I to the 1996 Rules and is governed by Rule 6 which empowers Collector/Additional Collector to grant or renew quarry lease in respect of the said minor mineral for an area situated on government or private land which does not exceed 10 hectares. Rules 6 of 1996 Rules is being reproduced hereunder :
6. Powers to grant quarry lease.- Quarry lease in respect of minerals specified in Schedule-I and II shall be granted and renewed by the authority mentioned in column (2) for the minerals specified in column (3) subject to the extent as specified in the corresponding entry in column (4) thereof of the Table below :-
S. Authority Minerals Extent of
No. powers(10
(1) (2) (3) (4)
1. Director (i) Minerals (i) Where the area
specified in serial applied for
number 1 to 4, 6 and exceeds 10.00
7 of Schedule-I. hectares.
(ii) Quarry of (ii)Where the area
minerals specified in applied for
serial number 5 of exceeds 10.00
Schedule I situated hectares.
in private land.
8
The High Court Of Madhya Pradesh
WP-19690-2019
(Smt. Prabha Sharma Vs State of M.P. & Others)
(iii) Quarry of (iii) Where the minerals specified in area applied for serial number 3 of exceed 10.00 Schedule-II situated hectares.
in private land.
(iv) Minerals (iv) Where the
specified in serial area applied for
number 4 of exceeds 10.00
Schedule-II. hectares.
2. Collector/Addit (i) Minerals (i) Where the area
ional Collector specified in serial applied for does
(Senior IAS number 1 to 3 of not exceeds 10.00
Scale) Schedule-I. hectares.
(ii) Minerals (ii) Where the area
specified in serial applied for
number 4,6 and 7 of exceeds 2.00
Schedule-I. hectares but does
not exceeds 10.00
hectares.
(iii) Quarry of (iii) Where the
minerals specified in area applied for
serial number 5 of does not exceeds
Schedule-I situated 10.00 hectares
in private land.
(iv) Minerals (iv) Where the
specified in serial area applied for
number 2 of exceeds 4.00
Schedule II ordinary hectares.
clay for making
bricks and tiles in
chimney-kilns/kilns.
(v) Quarry of (v) Where the area
minerals specified in applied for
serial number 3 of exceeds 2.00
Schedule II situated hectares but does
in private land. not exceeds 10.00
hectares.
(v) Minerals (v) Where the area
specified in serial applied for
number 4 of exceeds 2.00
Schedule II. hectares but does
not exceeds 10.00
hectares.
(vi) Minerals (vi) Where the
specified in serial area applied for
number 5 to 12 of exceeds 4.00
Schedule II. hectares.
3. Officer (i) Minerals (i) Where the area
9
The High Court Of Madhya Pradesh
WP-19690-2019
(Smt. Prabha Sharma Vs State of M.P. & Others) Incharge, specified applied for does Mining Section not exceed 2.00 hectares.
(ii) Minerals (ii) Where the area
specified in serial applied for dose
number 2 of not exceed 4.00
Schedule II, ordinary hectares.
clay for making
bricks and tiles in
chimney-kilns/kilns
(iii) Quarry of (iii) Where the
minerals specified in area applied for
serial number 3 of dose not exceed
Schedule II situated 4.00 hectares.
in private land.
(iv) Minerals (iv) Where the
specified in serial area applied for
number 4 of dose not exceed
Schedule II. 2.00 hectares.
(iv) Minerals (iv) Where the
specified in serial area applied for
number 5 to 12 of does not exceed
Schedule II. 4.00 hectares.
14- Pertinently, Rule 6 does not contemplate auction as the mode for grant of quarry lease. Therefore, law as it stands today does not oblige the licensing authority i.e. Collector/Additional Collector, as the case may be, to conduct auction as a prerequisite for grant of quarry lease in respect of minor mineral in question herein.
15- At this juncture, it would be apt to mention the provisions of Rule 7 of 1996 Rules, which is reproduced hereunder in toto:
[7. Power to grant trade quarry. - [(1) The quarries of Minerals, specified in serial number 5 of Schedule I and [serial numbers 1, 3 of Schedule II], situated in government land, shall be allotted only by auction :
Provided that quarry lease of minerals specified in serial number 1 of Schedule II may be granted in favour of the Madhya Pradesh State 10 The High Court Of Madhya Pradesh WP-19690-2019 (Smt. Prabha Sharma Vs State of M.P. & Others) Mining Corporation Limited (Government of Madhya Pradesh Undertaking).] [(2) The period of quarry of minerals specified in serial number 5 of schedule I and mineral specified in serial number 1 and 3 of schedule II shall be upto the end of fifth financial year from the financial year, fixed for auction :
Provided that if contractor establishes cutting and polishing industry or crusher for making gitti by mechanical means, within an initial period of contract, for mineral specified in serial number 5 of schedule I and serial number 3 of Schedule II respectively, then the period of contract quarry of minerals specified in serial number 5 of Schedule-I shall be 15 years instead of 5 years and period of contract quarry of mineral specified in serial number 5 of serial number 3 of Schedule-II shall be 10 years instead of 5 years. For extended period contractor shall submit approved mining plan/environmental permission. The contractor shall maintain separate account of gitti and mineral after establishing crusher.
Provided further that, a contract money of the contract quarry shall be increased by 5 percent every year excluding first year.
16- From the above, it is evident that Rule 7 obliges the licensing authority to adopt the mode of auction mandatorily as a condition precedent for grant of quarry lease in respect of minor minerals mention at Serial No.5 of Schedule I and serial no. 1 and 3 of Schedule II situated in Government land. For the sake of clarity, the said three kinds of minor mineral to be quarried from the Government land for which auction is mandatory to be conducted for grant of quarry lease are as follows :-
1. Item No.5, Schedule I - Flagstone.
2. Item No.1, Schedule II - Ordinary Sand, Bajri.11
The High Court Of Madhya Pradesh WP-19690-2019 (Smt. Prabha Sharma Vs State of M.P. & Others)
3. Item No.3, Schedule II - Stone, Boulder, Road Metal Gitti, Dhoka, Khanda, Dressed Stones, Rubble, Chips. 17- The aforesaid reveals that minor mineral at item No.6 of Schedule I of the 1996 Rules (Stone for making gitti by mechanical crushing) is not covered under Rule 7, and therefore, for grant of quarry lease for this minor mineral, auction is not necessary to be held. The necessary corollary is that the minor mineral in question as mentioned in item No.5 of Schedule 1 for the purpose of grant is covered exclusively by Rule 6.
18- The Coordinate Bench of this Court at Indore in its order dated 27.6.2019 while directing holding of open auction as a prerequisite for valid grant of quarry lease even for minor mineral of stone for making gitti by mechanical crushing (i.e. use of crusher) has made this direction to be prospective. For the sake of clarity, the relevant direction (B of order dated 27.06.2019) is reproduced below for ready reference and convenience :
"(B) The Respondent/State in future also in respect of mines for making Gitti shall conduct an open auction and no mining lease shall be granted without conducting an open auction."
19- From the above, it is clear as day and light that the mandate issued by the Coordinate Bench of this Court in W.P. No.6215/2019 making auction mandatory for grant of quarry lease over Government land qua minor mineral of stone for making gitti by mechanical 12 The High Court Of Madhya Pradesh WP-19690-2019 (Smt. Prabha Sharma Vs State of M.P. & Others) crushing (i.e. use of crusher) would apply on all prospective grants made by competent licensing authority on or after from 27.6.2019 (date of order in W.P. No.6215/2019).
20- The necessary corollary to the aforesaid finding is that all grants made by the competent licensing authority prior to 27.6.2019 would be governed by Rule 6 of the 1996 Rules and would not be adversely affected by the judgment dated 27.6.2019 of the Coordinate Bench of this Court passed in W.P. No.6215/2019 at Indore. 21- From the aforesaid, it is vivid that now the only obstacle in the path of the petitioner and the relief sought in this petition is the proviso to Rule 26 of 1996 Rules (Reproduced Supra).
22- Though the petitioner contends that the delay in executing the lease deed pursuant to grant Annexure P-5 dated 3.1.2019 is for the reasons not attributed to the petitioner but there is nothing in the reply of the State in this regard.
23- In this factual background, this Court has two options available to it. First is to treat acquiescence on the part of State to be an admission or to leave it to the licensing authority to dwell upon this aspect.
24- Pertinently it is the undisputed legal position that grant of leasehold rights for quarrying mineral are privileges extended by the State and cannot be claimed as of right. The Apex Court in case of Monnet Ispat and Energy Limited Vs. Union of India and Others, 13 The High Court Of Madhya Pradesh WP-19690-2019 (Smt. Prabha Sharma Vs State of M.P. & Others) (2012) 11 SCC 1, has held-
"No fundamental right in mining
133. The appellants have applied for mining leases in a land belonging to the Government of Jharkhand (erstwhile Bihar) and it is for iron ore which is a mineral included in Schedule I to the 1957 Act in respect of which no mining lease can be granted without the prior approval of the Central Government. It goes without saying that no person can claim any right in any land belonging to the Government or in any mines in any land belonging to the Government except under the 1957 Act and 1960 Rules. No person has any fundamental right to claim that he should be granted mining lease or prospecting licence or permitted reconnaissance operation in any land belonging to the Government. It is apt to quote the following statement of O. Chinnappa Reddy, J. in State of T.N. v. Hind Stone, (1981) 2 SCC 205, albeit in the context of minor mineral, "6 ... The public interest which induced Parliament to make the declaration contained in Section 2... has naturally to be the paramount consideration in all matters concerning the regulation of mines and the development of minerals".
He went on to say: (Hind Stone case, SCC p.217, para 10) "10. ... The statute with which we are concerned, the Mines and Minerals (Development and Regulation) Act, is aimed ... at the conservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of conservation and prudent exploitation. If you want to conserve for the future, you must prohibit in the present."
25- Thus, this Court deems it appropriate to choose the second option.
26- In the conspectus of the aforesaid factual and legal discussion of 14 The High Court Of Madhya Pradesh WP-19690-2019 (Smt. Prabha Sharma Vs State of M.P. & Others) the issue involved, this Court deems it appropriate to dispose of this petition with the following directions :
i. That the competent licensing authority respondent No.2/3, as the case may be, is directed to apply its mind on the question as to whether delay in execution and registration of the lease deed is for reasons attributed to the petitioner or not. This exercise shall be completed by the licensing authority within a period of 15 days from the date of receipt of copy of this order.
ii. If answer to the aforesaid exercise is in favour of the petitioner, then the licensing authority shall be obliged to execute lease deed and take all necessary steps to register the same, under the Indian Registration Act within a further period of 15 days.
iii. In case, answer to the exercise as directed by this Court in item No.1 is in the negative, the petitioner shall be disclosed the reasons by passing a speaking order and communicating the same within 15 days from the date of receipt of copy of this order.
iv. Needless to emphasize that on execution and registration of the quarry lease deed, the interest, rights and benefits flowing therefrom would be enjoyed by the petitioner subject to discharging his lawful obligations. v. The petitioner shall be entitled to cost of this litigation which is quantified at Rs.5,000/- (Five Thousand Rupees) which shall be paid to petitioner by the State by transferring the said amount by digital transfer in bank account of petitioner within a period of one month from the date of issuance of this order and file compliance report in Registry 15 The High Court Of Madhya Pradesh WP-19690-2019 (Smt. Prabha Sharma Vs State of M.P. & Others) of this Court within a month thereafter, failing which Registry is directed to list this case as PUD for execution.
(Sheel Nagu) (Rajeev Kumar Shrivastava)
Judge Judge
Aman
Aman Tiwari
2020.01.21 14:40:43 +05'30'