Rajasthan High Court - Jodhpur
M/S Gotan Limestone Khanij Udyog Pvt. ... vs State Of Rajasthan on 5 November, 2024
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2024:RJ-JD:39385]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 12253/2019
M/s Gotan Limestone Khanij Udyog Pvt. Ltd., Having Its
Registered Office At D7, Shastri Nagar, Jodhpur Rajasthan
Through Its Power Of Attorney Holder Shri Rajesh Kedia Son Of
Shri Bajrang Lal Kedia, Age 55 Years Resident Of 53 Officers Flat,
Jublee Road, Northen Sahar, Jamshedpur Jharkhand.
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary, Mines
Department, Government Secretariat, Jaipur.
2. Joint Secretary, Mines (Gr. 2) Department, Government
Secretariat, Jaipur.
3. Director, Department Of Mines And Geology, Rajasthan,
Udaipur.
4. Assistant Mining Engineer, Department Of Mines And
Geology, Gotan, Tehsil Merta City, District Nagaur.
5. JK Cement Limited, Village Gotan, Tehsil Merta City, District
Nagaur Rajasthan.
----Respondents
For Petitioner(s) : Mr. Kamlakar Sharma, Sr. Advocate
assisted by Mr. Alankrita Sharma
Mr. Madhusudan Singh Rajpurohit
Mr. Anjay Kothari
For State : Mr. Mahaveer Bishnoi, AAG
Mr. Gaurav Bishnoi, AAAG
For Respondent No.5 : Mr. Sudhir Gupta, Sr. Advocate
(J.K. Cement Ltd.) assisted by Mr. Ramit Mehta
Mr. Himanshu Soni
(D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders)
(Downloaded on 05/11/2024 at 09:47:18 PM)
[2024:RJ-JD:39385] (2 of 34) [CW-12253/2019]
JUSTICE DINESH MEHTA
Judgment
Reserved on : 25.09.2024
Reportable Pronounced on : 05.11.2024
BY THE COURT :
INDEX S.No. Particulars Page Number Para Number
1. Prelude 2 to 3 1 to 3
2. Factual Matrix 3 to 7 4.1 to 4.29
3. Case of the petitioner 7 to 12 5 to 25
4. Submissions on behalf of the State 13 to 15 26 to 35
5. Contention of Respondent No.5 15 to 18 36 to 47
6. Rejoinder Submission 18 to 20 48 to 56
7. Discussion & Finding 20 to 34 58 to 111
1. Amidst the copious record, lies a rather small question.
2. The genesis of the controversy lies in the very formation of the petitioner company - its conversion from a partnership firm and then, transfer of its shares to Ultra Tech Cement Limited (hereinafter referred to as "the UTCL"). The same was though portrayed as a simple corporate restructuring but was found to be a clandestine transfer of mineral rights by Hon'ble the Supreme Court by its judgment dated 20.01.2016 rendered in Civil Appeal No.434/2016 (hereinafter referred to as "the Supreme Court Judgment").
3. The question which has cropped up now is, whether these two transactions have been validated by the Rajasthan Minor Mineral Concession Rules, 2017 (hereinafter referred to as "Rules of 2017") and whether the Mineral rights can be entered/recorded (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (3 of 34) [CW-12253/2019] in the name of petitioner or its successor - Ultra Tech Cement Pvt. Ltd.
4. The facts relevant, unfolded briefly, run as under :-
Factual Matrix:
4.1 A mining lease (bearing Mining Lease No.45/93) covering 10 sq. kilometer area for mineral - limestone was granted to a partnership firm named and styled as M/s Gotan Limestone Khanij Udyog (hereinafter referred to as "the GLKU or the Firm"). 4.2 Said mining lease was renewed from time to time and was to remain valid until 04.04.2024.
4.3 In the year 2012, the erstwhile partners of the Firm decided to convert itself into a 'private limited company' for carrying on the business which was being run by the Firm. 4.4 Consequently, a Private Limited company named M/s Gotan Limestone Khanij Udyog Private Limited was formed on 26.03.2012 (hereinafter referred as "the GLKUPL or Private Ltd.
Company").
4.5 Immediately on incorporation of the company, the Firm submitted an application dated 28.03.2012 under Rule 15 of the Rajasthan Minor Mineral Concession Rules, 1986 (hereinafter referred to as "the Rules of 1986") before the Assistant Mining Engineer, Gotan, seeking permission to transfer the mineral rights and mining lease in favour of the petitioner - the newly incorporated company.
4.6 While submitting the application aforesaid, the Firm asserted that all the existing partners of the Firm are the Directors of the newly incorporated company and no consideration or premium has been taken by it.
(D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (4 of 34) [CW-12253/2019] 4.7 The respondent No.4 recommended that the lease deed be transferred in the name of the Private Ltd. Company. 4.8 On the basis of the recommendations so made, the Director (Mines) permitted the transfer of subject mining lease to the petitioner - Gotan Limestone Khanij Udyog Private Limited Company subject of course to payment of applicable charges, including the premium amount vide order dated 25.04.2012. 4.9 In furtherance of the permission so granted by the Director (Mines), a transfer deed in the form prescribed under Rule 15(4) came to be executed between the State Government, transferor Firm and the transferee Company on 08.08.2013. 4.10 Though not of much significance for the present case, but as an ancillary fact, it may be borne in mind that the partnership firm had submitted an application dated 31.01.1997 on 04.02.1997, and sought transfer of 2.041738 sq. km. (204.1738 hectares) land out of its leasehold area of 10 sq. km to M/s JK White Cement Works, Gotan- Respondent No.5.
4.11 Such request of the petitioner - Company was turned down by the Director (Mines) vide its letter dated 11.08.1997, while observing that there was no provision for part transfer of the mining rights under Rule 15 of the Rules of 1986. 4.12 Respondent No.5 preferred a revision petition, which came to be allowed by the State Government vide order dated 02.12.1997 and the matter was remanded to the Director (Mines) with a direction to send proposal for part transfer, alongwith proposal for giving relaxation in terms of Rule 65 of the Rules of 1986. 4.13 As per the facts available on record, no order was passed in pursuance of the order of the State Government dated 02.12.1997 (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (5 of 34) [CW-12253/2019] for a period of about 14 years and it was only on 05.09.2012, the Director (Mines) rejected said application dated 04.02.1997 for part transfer.
4.14 While passing the order dated 05.09.2012, the Director (Mines) referred to and relied upon a communication of the State Government dated 13.08.2012 in which it was indicated that there is no provision for part transfer of the mining rights and also relying upon the earlier order dated 27.01.1999. 4.15 The respondent No.5 in turn preferred a writ petition (being SBCWP No.404/2013) challenging the order of the Director (Mines) dated 05.09.2012, whereby the application for transfer of 204.1738 hectares area filed by the partnership firm (to respondent No.5 - JKWC) was rejected.
4.16 Said writ petition, though not directly related was proposed to be heard immediately after completion of arguments of this case, as suggested by all the appearing counsel. 4.17 Reverting back to the facts of the present case, it may be noted that on 21.04.2014, the State Government sent a notice to the petitioner Company asking as to why the order dated 25.04.2012 whereby leasehold rights qua the mining lease No.45/93 were transferred (from the partnership Firm to the petitioner - Private Ltd. Company) should not be declared null and void and the mining lease be not determined.
4.18 The petitioner filed a reply dated 04.06.2014 and put forth its defence but the same did not find favour of the State Government and an order dated 16.12.2014 came to be passed, whereby not only the order dated 25.04.2012 allowing the transfer was rescinded even the mining lease was determined. (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (6 of 34) [CW-12253/2019] 4.19 Feeling aggrieved with the above order dated 16.12.2014, the petitioner- Company had preferred a writ petition (being SBCWP No.9669/2014), which was allowed by a Coordinate Bench of this Court vide order dated 25.03.2015 4.20 Intra-court appeals filed thereagainst by the State so also by the respondent No.5 - JKWC were rejected by a Division Bench per-viam order dated 14.05.2015.
4.21 The State so also the respondent No.5 - JKWC preferred separate Special Leave Petitions before Hon'ble the Supreme Court. The SLP of the State was later converted into Civil Appeal No.434/2016 and came to be allowed by Hon'ble the Supreme Court vide its judgment dated 20.01.2016.
4.22 While allowing the appeal, Hon'ble the Supreme Court held that both the transactions namely formation of private limited company (Gotan Limestone Khanij Udyog Private Limited) from the partnership firm (Gotan Limestone Khanij Udyog) and then transfer of entire share holdings of said private limited company to Ultra Tech Cement Limited, if seen individually do not involve any infirmity or illegality but if the transactions are seen conjointly, it turns out to be a device to avoid legal requirement for transfer of mining lease and to facilitate private benefits to the parties to the transaction to the detriment of the public.
4.23 After the judgment aforesaid, the petitioner moved an application on 10.05.2017 before the State Government and prayed that the transfer of the subject mine be permitted. 4.24 While submitting the application, the petitioner relied upon the observations made by Hon'ble the Supreme Court in para No.38 of above judgment and highlighted that Rule 27 of the (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (7 of 34) [CW-12253/2019] newly promulgated Rules of 2017 permits transfer of mineral concession by the transaction like the one undertaken by the petitioner Company.
4.25 It was also asserted in the application that after the transfer of the mining lease, the entire mineral shall be used for captive use of its holding company UTCL and the petitioner Company would ultimately merge in UTCL.
4.26 The petitioner Company also stated that it would pay the prescribed premium/transfer fee and other charges. 4.27 The said application of the petitioner was followed by two representations by the holding company - UTCL alongwith opinion of a senior lawyer of the Supreme Court.
4.28 The application so filed by the petitioner came to be rejected by the State Government vide its order dated 28.11.2017 with observation that as per Rule 27 of the Rules of 2017, a mining lease cannot be transferred without prior permission and that the change of Director(s) in a company amounts to transfer. According to the State, as no prior permission was obtained before changing the Director of the company, the transfer was illegal. 4.29 The State Government further noted that the mining lease in question had been determined and the area in question was in the possession of the State Government. According to the State, since there was no provision for transfer of an otherwise terminated mining lease, petitioner's application meritted rejection.
Petitioner's Case:
5. Calling in question the above referred order dated 28.11.2017, the petitioner has preferred the present writ petition. (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (8 of 34) [CW-12253/2019]
6. Mr. Kamlakar Sharma, learned senior counsel appearing for the petitioner navigated the Court through the factual matrix which has been encapsulated in preceding paragraphs so also relevant provisions and documents to contend that the subject order is contrary to facts & law involved.
7. It was argued that the order is non-speaking and unreasoned on the one hand and is violative of principles of natural justice on the other. He read the impugned order dated 28.11.2017 in its entirety and argued that if the State Government was of the opinion that the petitioner's application dated 10.05.2017 was liable to be rejected, it ought to have afforded an opportunity of hearing to the petitioner.
8. He was critical while submitting that the State Government has not assigned any reasons for rejecting the petitioner's application.
9. He contended that though Hon'ble the Supreme Court had upheld the order dated 16.12.2014 and set aside the orders of this Court but notwithstanding such quashment, a directions was issued to the State Government to frame a policy to cover up transactions like the one under consideration within a period of one month and take decision in respect of the mining lease in question.
10. He argued that the fact that Hon'ble the Supreme Court directed the status-quo to be maintained, clearly suggests that Hon'ble the Supreme Court wanted the State Government to regularize the transactions. Learned senior counsel read the relevant part of the judgment of Hon'ble the Supreme Court, more particularly, para-38 thereto in a bid to canvass that Hon'ble the (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (9 of 34) [CW-12253/2019] Supreme Court had not completely sealed the fate of the petitioner. He added that Hon'ble the Supreme Court had rather directed the State Government to re-look the entire issue in light of the policy to be framed.
11. It was argued that the State Government was required to objectively consider the petitioner's application and protect its mining rights, more particularly when no third party rights qua the area covered by subject mining lease could be created, but the State Government has rejected petitioner's application in cursory manner.
12. Having argued that the order is non-speaking and cryptic, learned senior counsel submitted that the petitioner's application merited acceptance. And for such purpose, he took the Court through Rule 27 of the Rules of 2017 and submitted that in furtherance of the directions given by Hon'ble the Supreme Court, the State Government has brought in policy and introduced new provisions in the form of sub-rule(7), (8) and (9) in Rule 27, which Rule is otherwise pari-materia to Rule 15 of the Rules of 1986.
13. Comparing both the provisions, he submitted that sub- rule(7) to (10) of Rule 27 of the Rules of 2017 have been introduced in order to give effect to the directions issued by the Supreme Court and therefore, benefits of newly introduced provisions ought to have been given to the petitioner-Company in whose case the directions to frame policy were given.
14. Learned senior counsel argued that clause (i) of sub-rule(7) of Rule 27 of the Rules of 2017 clearly covers petitioner's case and when it had volunteered to pay the applicable charges, there was (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (10 of 34) [CW-12253/2019] no justifiable reasons for the State Government to reject the petitioner's application.
15. He argued that sub-rule(7), (8) and (11) of Rule 27 of the Rules of 2017 are entirely different and independent of sub-rule(1) to (6) of Rule 27 and prior-permission in the case of deemed transfer or contingencies enumerated in clause(i) to (v) of sub- rule(7) is not required.
16. In this regard, he emphasized that language used in sub- rule(8) makes it clear that in the event of deemed transfer, the lessee or licencee is simply required to inform the Mining Engineer or the Assistant Mining Engineer about any change within 60 days along with the application fee and premium amount as per sub- rule(9).
17. In other words, his plea has been that requirement of previous consent of the competent authority in writing as given in sub-rule(1) of Rule 27 cannot be read qua the cases covered by or deemed transfers mentioned in different clauses of sub-rule(7).
18. It was argued that had there been any intention of prior consent for the transactions covered by sub-rule(7), then there was no reason not to specify such requirement. He emphasised that the provision "lessee or licensee shall inform regarding any change within a period of 60 days" makes it abundantly clear that prior permission in such cases has been done away with.
19. It was argued that the expression 'prior consent' as envisaged under sub-rule(1) and information to be given in 60 days about the change as provided under sub-rule(8), are contrary to each other and, therefore, the State's stand that since (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (11 of 34) [CW-12253/2019] no prior consent was taken, petitioner's application was liable to be rejected, is unsustainable in the eye of law.
20. Inviting Court's attention towards the provision of sub- rule(11) of Rule 27, more particularly its proviso, learned senior counsel argued that in the case of transfer other than auction, lock-in period of one year has been prescribed but no lock-in period in relation to the cases covered by clause(i) to (v) of sub- rule(7) has been provided. He then argued that two separate categories have been carved out by Rule 27 under the heading -
"Transfer of mineral concession". First regular transfer and second deemed transfers or cases covered by sub-rule(7). He emphasised that cases governed by sub-rule(7) are entirely different than the cases of transfer as given in sub-rule(1).
21. He argued that the opening expression of sub-rule(1) that the lessee or licencee shall not transfer or assign the mining rights without previous consent in writing of the competent authority is not applicable to the changes covered by sub-rule(7) of Rule 27.
22. Learned senior counsel also referred to the provision contained in Rule 28, more particularly clause(xix) of sub-rule(1) thereto and submitted that these conditions are meant to cover up cases governed by clause(i) to (v) of sub-rule(7) of Rule 27. He added that proviso to clause(xix) clearly provides that the failure to intimate the above mentioned changes in specified time is not fatal to the right to transfer. He added that the same can be submitted on payment of late fee at the rate of rupees five hundred per day subject to maximum of rupees two lacs. Highlighting that the State Government could at the best recover the late fee which could at the maximum be rupess two lacs, Mr. (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (12 of 34) [CW-12253/2019] Sharma argued that impugned decision out-rightly rejecting petitioner's application is illegal and contrary to the provisions of Rules 27 and 28 of the Rules of 2017.
23. Without prejudice to the above submissions, learned senior counsel submitted that the petitioner-Company had intimated the State Government vide its letter dated 09.08.2012 (Annexure-25 along with the rejoinder) about the transactions taken place. He argued that since the intimation had been given, the State's decision of not considering petitioner's case in light of provisions of Rule 27 is not in conformity with the facts on record.
24. Learned senior counsel argued that Hon'ble the Supreme Court was cognisant of the fact that a prior consent had been obtained by the partnership firm, when it transformed into a private limited company and despite that holding independently considered, there was nothing wrong or illegal in either of the two transactions namely conversion of the partnership firm to private limited company and purchase of shares of the private limited company by UTCL, it directed the State to frame policy. He submitted that once policy has been framed and deeming fiction has been provided under sub-rule(7), completely covering the petitioner's case, the State Government could not have rejected the application on technical grounds, when in substance there remains no illegality in the transactions per-se.
25. He alternately argued that since limestone has been declared to be a major mineral as per the provisions of the MMDR Act, it be allowed to transfer the leasehold rights or to consider its application under Section 12(A)(6) of the MMDR Act. (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (13 of 34) [CW-12253/2019] Submissions of the State:
26. Mr. Mahaveer Bishnoi, learned Addl. Advocate General opened his case by reading Rule 1(3) of the Rules of 2017 and underscored that the Rules of 2017 have come into force w.e.f. 01.03.2017 and argued that the transactions, which were complete before coming into force of the rules cannot be covered by the set of rules.
27. He submitted that a fact has to be borne in mind that the subject mining lease No.45/93 had been determined by the competent authority on 16.12.2014. He submitted that no doubt Single Bench of this Court by its order dated 25.03.2015 had later on allowed the petitioner's writ petition and quashed said order and the Division Bench by its judgment dated 14.05.2015 upheld the view of the learned Single Judge, but finally, by dint of judgment dated 20.01.2016 passed by Hon'ble the Supreme Court, the said order dated 16.12.2014 terminating the lease deed stood revived.
28. He submitted that on 10.05.2017, when the application was submitted, no mining lease in petitioner's favour was subsisting and, therefore, there was no existing right with the petitioner to claim or apply for transfer of leasehold rights to UTCL.
29. Taking the Court through various documents, Mr. Bishnoi highlighted that after the private limited company was incorporated (on 26.03.2012) the lessee moved an application for prior consent to transfer under the signatures of the partners of the partnership firm on 28.03.2012 and while executing the consequential lease deed dated 08.05.2013, the firm had given a categorical undertaking that they had not entered into or made (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (14 of 34) [CW-12253/2019] any agreement directly or indirectly and its mining rights have not been transferred to any other party, whereas the intention of the petitioner to transfer its mining rights to UTCL was clear.
30. He flagged that immediately on transfer of mining lease to the petitioner, entire share holding of the private limited company had been transferred to UTCL on 23.07.2012. He added that three out of four of its directions were changed on 06.08.2012 and that the petitioner company had become a wholly owned subsidiary of UTCL. He stressed that the series of transactions were nothing but a device to illegally transfer its mining rights to UTCL.
31. He emphasized that on 16.12.2014, the possession of the leased area had been taken immediately on termination of lease and thereafter the possession always remained with the State. He then, contended that since the mining lease stood terminated consequent to the decision of Hon'ble the Supreme Court, neither the mining lease can be revived in the name of the petitioner nor can it be transferred as prayed, because there is no surviving right in petitioner's favour.
32. Mr. Bishnoi argued that in the light of provisions of the Rules of 2017, petitioner's application for transfer cannot be accepted, as it had never applied for prior consent as required under sub- rule(1) of Rule 27.
33. He additionally submitted that if the petitioner wanted its case to be considered under Rule 27, it was incumbent upon it to have deposited the amount as mentioned in sub-rule(1) and (2) of Rule 27 and since the same was not done, its application could not have been considered.
(D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (15 of 34) [CW-12253/2019]
34. He argued that pursuant to the directions given by Hon'ble the Supreme Court to frame a policy to cover the transactions like the one involved in the present set of facts, the State has framed the policy and accordingly, such transactions have been given recognition but only after coming into force of the Rules of 2017 (01.03.2017). He vehemently argued that the previous transactions cannot be validated, when the new set of Rules do not contains any such provision.
35. Learned Additional Advocate General finally submitted that the petitioner's alternative prayer that since limestone has been declared to be a major mineral as per the provisions of the MMDR Act, it be allowed to transfer the leasehold rights or to consider its application under Section 12A(6) can also not be considered as said provision has been deleted from the Act of 1957.
Contentions of Respondent No.5:
36. Mr. Sudhir Gupta, learned senior counsel appearing for respondent No.5. (J.K.Cement Ltd.) at the outset submitted that the entire controversy hinges around para No. 38 of the judgment dated 20.01.2016 passed by Hon'ble the Supreme Court and argued that not only the legal question was set at rest by Hon'ble the Supreme Court against the petitioner - Gotan Limestone Khanij Udhyog Pvt. Ltd. but also the fate of the petitioner in this regard was sealed.
37. He argued that the original lessee was Gotan Limestone Khanij Udhyog-the partnership firm, which has ceased to exist and the petitioner, which is a result of conversion of said firm to a private limited company has also become a wholly owned subsidiary of UTCL and thus, it has no locus to challenge the (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (16 of 34) [CW-12253/2019] State's action, more particularly, when the lease itself stands terminated.
38. It was further argued that since the mining lease had already been set aside by the State Government by the order dated 16.12.2014 and such order came to be restored by Hon'ble the Supreme Court, and therefore, the petitioner, who is not an existing mining lease-holder cannot claim transfer of mining lease in terms of Rule 27 of the Rules of 2017.
39. He contended that sub-Rule(7) of the Rules of 2017 is not an independent provision and argued that it has to be read with remaining part and provisions of Rule 27. He argued that even if it is assumed that the petitioner could get its mining lease transferred, then also, a formal application for transfer after payment of applicable fee subject to establishing the fact that it had existing and subsisting leasehold rights was necessary.
40. Learned senior counsel pointed that petitioner's application dated 10.05.2017 was rejected by the State Government by order dated 28.11.2017, whereas the petitioner has approached this Court on 13.08.2019 - after an inordinate delay of 20 months and argued that delay in such matters cannot be taken lightly.
41. Learned senior counsel made various submissions on conduct of the erstwhile directors of the petitioner company and submitted that they had filed an undertaking on 08.08.2023, whereas the shares of Gotan Khanij Private Limited had already been transferred and erstwhile directors of Gotan Limestone Khanij Udyog Pvt. Ltd. too had resigned on 23.07.2012.
42. Learned senior counsel submitted that the directions given by Hon'ble the Supreme Court in Para No.38 of the judgment are (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (17 of 34) [CW-12253/2019] to be read in light of what has been held/observed in Para No.32 of the judgment and argued that as per observations made in said para, the State was supposed to regulate the transfer of mineral rights in the best interest of the people.
43. Inviting Court's attention towards the observation of Hon'ble the Supreme Court that a lessee cannot be allowed to trade such rights by adopting a ploy as has been done by the petitioner, he argued that since the transaction or the modus operendi adopted by the petitioner has been held to be contrary to the doctrine of public trust, the application for transfer of mining rights as sought by the petitioner company in favour of Ultra Tech Cement Limited was liable to be and hence, rightly rejected.
44. Mr. Gupta relied upon judgment of Hon'ble the Supreme Court in case of Abhishek Kumar Singh Vs. G.Pattanaik & Ors., reported in 2021 (7) SCC 613 (Para No.58) and submitted that this Court cannot interpret and explain the order passed by Hon'ble the Supreme Court and the High Court can only follow the dictum of the Supreme Court which is binding on it.
45. He submitted that with effect from 12.01.2015, the limestone has been classified as a major mineral and argued that the mineral rights in question can be given only by way of auction as provided under section 10B(4) of the Act of 1957.
46. He submitted that the representations for restoration and transfer of mining lease (Annex.23) were filed by UTCL which has no locus to claim transfer, because said company (UTCL) was never a mining lease-holder. He relied upon the judgment of Hon'ble the Supreme Court rendered in the case of Gore Lal Dube Vs. State of Madhya Pradesh & Ors., reported in 1976 (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (18 of 34) [CW-12253/2019] (2) SCC 911, in order to contend that the proper course for the State was to consider the applications as major mineral so also minor mineral.
47. He contended that leasehold or mineral rights were required to be given as a major mineral by reading Para No.11 of the judgment ibid and iterated that since limestone is a major mineral, Rules of 2017 are not applicable. He concluded with the contention that the petitioner has no case worth interference, as the Rules of 2017 are not applicable.
Rejoinder-submissions:
48. Mr. Sharma, learned senior counsel for the petitioner, in rejoinder, began his arguments from the point where Mr. Gupta had left.
49. He argued that the contentions of, Mr. Gupta that Rules of 2017 meant for minor mineral are not applicable, is wholly misconceived. He submitted that the mining lease in question was granted as a minor mineral.
50. He submitted that sub-rule(7) of Rule 27 is a consequence of the directions given by Hon'ble the Supreme Court in Para No.38 of the judgment and even if the petitioner's case is to be considered, then the application which the petitioner had filed on 10.05.2017 was addressed to the Principal Secretary, whereas Rule 27 requires an application to be filed before mining engineer.
51. He emphatically submitted that on the date of such application, the petitioner was not a lease-holder and hence, it could not have maintained or enforce so called right of transfer.
52. Learned senior counsel in rejoinder also argued that the judgment was in rem and not for the petitioner alone. He however (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (19 of 34) [CW-12253/2019] added that since there exists no provision for submitting an application qua the transfers covered by sub-rule(7), as is applicable for transfers in sub-rule(1), the petitioner did not file an application. He added that if any formality of filing application was required, the respondent-State ought to have asked for it. Had the petitioner been asked to file any formal application, it would have moved the same.
53. He added that the individual transactions if seen independently were not illegal. He submitted that the transactions seen cumulatively have been held illegal by the Supreme Court. He submitted that the petitioner cannot be given a hostile treatment, simply because, Hon'ble the Supreme Court has held the transactions to be a device.
54. He argued that contentions of Mr. Gupta that the subject mining lease can only be granted through auction as per Section 10B(4) and (7) of the MMDR Act is misconceived. He submitted that the lease was granted as a minor mineral under the Rules of 1986 and even application for transfer was filed under such Rules.
55. He asserted that limestone has always been considered both as major mineral as well as minor mineral based upon its use as has been held in the judgment of Hon'ble Supreme Court in case of Rukmani Bai Vs. State of M.P., reported in (1975) 1 SCC 627 and argued that it does not lie in the mouth of respondent No.5 to raise such contention, when the application for part transfer of mining lease to respondent No.5 was submitted under the Rules of 1986.
56. Relying upon the judgment of Apex Court reported in 2022 SCC Online 1119 (SEBI Vs. Raj Kumar Nagpal) Para Nos.99- (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (20 of 34) [CW-12253/2019] 104, he argued that the Rules of 2017 are retrospective and the same are applicable in petitioner's case, more particularly, because the sub-rule(7) to (11) of Rule 27 were introduced pursuant to observation made in Para No.38 of the judgment in the case of petitioner.
57. Heard learned counsel for the parties.
Discussion and finding:
58. The genesis of the case at hands lies in Para No.38 of the judgment of Hon'ble the Supreme Court dated 20.01.2016, which was passed in an appeal filed by the State Government. While allowing the appeal, Hon'ble the Supreme Court issued following direction:-
"38. Accordingly, this appeal is allowed and the judgment of the High Court is set aside. We, however, direct the State of Rajasthan to frame and notify its policy in the matter within one month from the receipt of a copy of this order. The State of Rajasthan may within one month thereafter pass an appropriate order in respect of the mining lease in question in the light of the policy so framed. Till such a decision is taken, status quo may be maintained."
59. It is to be noted that the transaction of conversion of partnership firm to private limited company has been held not to be a transfer by the learned Single Judge in earlier round of litigation (Re: S.B Civil Writ petition number 9669/2014) taken up by the petitioner and such view was affirmed by the Division Bench. It is a fact that Hon'ble the Supreme Court vide its judgment dated 20.01.2016 has held that as per general principles, the sale of shares by itself is not a sale of assets, but (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (21 of 34) [CW-12253/2019] this principle is subject to the doctrine of piercing the corporate veil, wherever necessary to give effect to the policy of law.
60. Hon'ble the Supreme Court went ahead to hold that in the instant case, the doctrine of piercing the corporate veil is applicable. The transfer of shares was therefore held as a cloak to cover real transaction of sale of mining lease for consideration, without the previous consent of the competent authority as statutorily required.
61. Therefore, so far as the issue that the conversion of partnership firm into a company so also transfer of share of private limited company to UTCL is concerned, the same has been finally set at rest by Hon'ble the Supreme Court. While holding the transaction to be a device to circumvent the provision and procedure for transfer, Hon'ble the Supreme Court has directed the State Government to frame a policy in this regard and pass appropriate order in respect of the mining lease in question.
62. Contention of Mr. Gupta, learned senior counsel for respondent No.5 has been that - Hon'ble the Supreme Court has directed the State Government to pass order in respect "the mining lease in question" and not the petitioner, and therefore, no indulgence is required to be granted to the petitioner, is untenable and unacceptable.
63. Because, had the intention of Hon'ble the Supreme Court was to pass appropriate order in respect of mining lease only, leaving or ignoring, petitioner's rights, then there was no occasion to direct what has been indicated in Para No.38 of the order. In such case, simply setting aside of the order of the High Court and (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (22 of 34) [CW-12253/2019] restoring the order dated 16.12.2014 cancelling the mining lease would have been sufficient. The consequence would naturally follow, and the State would be free to auction the mining lease in accordance with law.
64. This view is further fortified by the stipulation made by Hon'ble the Supreme Court - it had directed the State to maintain 'status quo' until such time. The petitioner, in the opinion of this Court, cannot be non-suited, as prayed - after framing of the policy, the State was required to decide petitioner's rights in light of the policy so framed.
65. Mr. Gupta, learned counsel for the respondent No.5 cited judgment in the case of Abhishek Kumar Singh (supra), particularly para-58 of said judgment, which in the opinion of this Court does not throw any light on the substance of issue involved in the present case.
66. Para-58 of the judgment aforesaid is reproduced hereunder :-
"58. At the outset, we deem it appropriate to first answer the preliminary objection regarding maintainability of writ petition under Article 32 of the Constitution of India. We have no hesitation in rejecting this preliminary objection for more than one reason. It is well-established position that if the termination order is assailed on the ground of violation of principles of natural justice or fundamental rights guaranteed under Part III of the Constitution, such a grievance can be brought before the constitutional court including by way of writ petition under Article 32 of the Constitution of India. It is a different matter that this Court may be loath in entertaining the grievance directly under Article 32 and instead relegate the petitioner(s) before the High Court to first exhaust the remedy under Article 226 of the Constitution of India. That is also because this Court will then have the advantage of the judgment of the High Court on relevant aspects. In other words, it is not a question of maintainability of writ petition, but one of exercise of discretion with (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (23 of 34) [CW-12253/2019] circumspection in entertaining writ petition under Article 32 in such matters. Further, in the present case, there are other proceedings pending in the form of contempt petitions and a transfer petition wherein the termination Order dated 2-3-2020 is the subject-matter. Thus, the arguments in these cases will be overlapping. In that, the selfsame order has been impugned in the writ petition filed before this Court. The fact that other affected similarly placed persons have filed writ petitions directly before the High Court and which are stated to be pending, can be no impediment for this Court in entertaining and deciding the writ petition. For, the issue regarding the purport of orders passed by this Court needs to be answered appropriately in contempt petitions only by this Court. It is not open to the High Court to interpret or explain the order passed by this Court in previous proceedings between the parties. The High Court can only follow the dictum of this Court which is binding on it. Accordingly, we are not impressed by the preliminary objection taken by the respondents regarding the maintainability of writ petition under Article 32 of the Constitution by similarly placed persons directly filed before this Court to assail the impugned Order dated 2-3- 2020, which is also subject-matter of second set of contempt petitions."
67. In the case of Gorelal Dubey (supra), Hon'ble the Supreme Court held that where there are two applicants - one who sought the lease for limestone as a minor mineral, while the other, applied for it as a major mineral, the appropriate course of action is to instruct the State Government to review both applications, assess whether the quality of the limestone in the area warrants a lease for quarrying it as a minor mineral or for mining it as a major mineral, and then proceed to grant the lease accordingly.
68. Now the question which arises is, as to whether the newly incorporated Rules of 2017, particularly, sub-rule(7) and (8) of Rule 27, cover and serve the cause of the petitioner?
69. For such purpose, a careful reading of the scheme framed by the State in the form of Rule 27 of the Rules of 2017 is required to (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (24 of 34) [CW-12253/2019] be borne in mind. So far as the controversy before this Court is concerned, the same revolves around sub-rule(7) and (8) of Rule 27, which are reproduced hereinunder:-
27(7):- The following cases shall also be treated as transfer, -
(i) change from one form of business organization to another form of business organization i.e. partnership, limited liability partnership, private limited company, public limited company or any form of business activities recognized by any law to another form of business organization;
(ii) change in partner of a partnership firm;
(iii) the transfer of shares in a company,
resulting in the change of control of
management or ownership right of the said
company;
(iv) merger or amalgamation of the lessee's
or licensee's company into another company;
and
(v) change of a private limited company to
limited company:
27(8) :- The lessee or licencee shall inform
regarding any change as mentioned in sub-rule (7) to the Mining Engineer or Assistant Mining Engineer concerned within sixty days along with the application fee and premium amount as per sub-
rule (9). In such case, the transfer shall be effective from the date of such change of partner or director, as the case may be, under relevant law.
70. A reading of Rule 15 of the erstwhile Rules of 1986 in juxtaposition with Rule 27 of the Rules of 2017 reveals that upto sub-rule(6), the provisions are more or less, pari-materia to Rule 15 of the Rajasthan Minor Mineral Concession Rules, 1986. As the Rules of 1986 did not clearly cover up the transactions, which were effectuated by the petitioner, Hon'ble the Supreme Court after delving deep into the transactions, went on to hold that the (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (25 of 34) [CW-12253/2019] transaction in question was factually a sale or transfer of leasehold rights.
71. What had been observed by the Supreme Court has now been specifically provided in the form of sub-rule(7) of Rule 27 of the Rules of 2017 and a deeming-fiction in relation to the transactions enlisted in clauses (i) to (v) has been provided and such changes have been held to be transfers.
72. Accordingly, conversion of partnership firm to a private limited company, so also transfer of shares of private limited company to limited company have been held to be transfer by virtue of provisions contained in Clauses (i) and (iii) of sub-rule(7) of Rule 27.
73. Sub-rule(1) of Rule 27 unequivocally provides that lease or license shall not without the previous consent in writing of the competent authority be assigned, sub-let, mortgaged or transferred. Provisions from sub-rule(2) to sub-rule(6) provide mechanism of transfer, whereafter, sub-rule(7) encapsulates the contingencies or the changes mentioned in Clause(i) to (v) shall also be treated as transfer.
74. Extensive submissions have been made to the effect that the order impugned is illegal and contrary, as the principles of natural justice have not been followed and also because the order impugned does not contain reasons. If the provisions contained in sub-rule(8) being procedure for entering or affecting change in the Constitution of the firm is taken into consideration, indisputably, it does not provide for any opportunity of hearing. According to this Court, even in absence of specific provision, if substantive rights (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (26 of 34) [CW-12253/2019] for citizens or lessee are being adjudicated, the authority concerned should respect right of audience, which has been held to be a corner stone of the foundation of natural justice.
75. Sub-rule(8) of Rule 27 is a machinery provision; it comes into play once prior consent has been obtained before introducing or bringing in change in the Constitution of the firm or its- ownership as mentioned in clause (i) to (v) to sub-rule(7).
76. As a matter of fact, grant of consent or refusal is a substantive right, which requires recording of reasons if permission is refused. Once permission has been granted what is required to be done is a ministerial act. Hence, if opportunity of hearing has not been provided, the order cannot be faulted with in so far as the present case is concerned. In the present case, as the facts were admitted, even if opportunity of hearing was provided to the petitioner, it would hardly have made any difference.
77. This Court also does not find any substance in contention of Mr. Sharma that the order is not a reasoned order. A perusal of impugned order dated 28.11.2017 shows that the State Government has held that the change of Director of a company falls within the ambit of transfer and that the company had not obtained prior consent for effecting such transfer. The State Government has further held that the lease deed granted to the petitioner had been determined way back on 16.12.2014 and therefore the mining lease cannot be transferred in the name of UTCL.
(D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (27 of 34) [CW-12253/2019]
78. It is not in dispute that by way order dated 16.12.2014, the mining lease which was in the name of Gotan Limestone Khanij Udhyog, a partnership firm stood terminated/cancelled, while holding the subject transaction to be a transfer, Hon'ble the Supreme Court has set aside the judgment dated 25.03.2015 of Co-ordinate Bench so also judgment dated 14.05.2015 passed by the Division Bench of the this Court. And resultantly, the order dated 16.12.2014 stood revived, whereby the mining lease in favour of the partnership firm - Gotan Limestone Khanij Udhyog was annulled.
79. While doing so, Hon'ble the Supreme Court in Para No.38 of its judgment has kept the issue alive and directed the State Government to frame and notify its policy and pass a fresh order in respect of the mining lease in question. This Court is of the view that State's stance that since the mining lease had been determined, petitioner's request for transfer cannot be acceded to, is not in conformity with the judgment of Hon'ble the Supreme Court. More so, when a clear direction was issued to the State to consider fate of the mining lease in question.
80. But then, the moot question which comes up for consideration of this Court is, as to whether the respondent State was obliged to transfer the mining lease in favour of the petitioner's holding company - Ultra Tech Cement Limited ?
81. The State has essentially rejected petitioner's application while holding the subject transaction to be a transfer and finding that no previous consent was obtained apart from observing that the mining lease in question had been determined. (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (28 of 34) [CW-12253/2019]
82. There can be no two opinions that the subject transaction after promulgation of the Rules of 2017 constituted a transfer. While allowing the appeal, Hon'ble the Supreme Court had directed the State to frame a policy in this regard. And therefore, what is important is, the manner in which such transfers are to be dealt with.
83. Sub-rule(8) of Rule 27 postulates that when the changes or transaction which by virtue of deeming-fiction are construed as sale are required to be given effect to, it will be incumbent upon the lessee or licensee to inform the mining engineer or assistant engineer concerned about the changes taken place, within 60 days along with applicable application fee and premium amount as per sub-rule(9).
84. According to this Court, the Rules of 2017 do neither bring within its sweep the past transactions nor do they provide for validation of the transactions that have taken place prior to the promulgation of said Rules. Hence, the petitioner cannot take advantage of what has been provided in sub-rule(8) or sub-rule(9) of Rule 27.
85. The transactions entered into by the petitioner or change effected by it have already been held by Hon'ble the Supreme Court to be a transfer. There is hardly anything in Rule 27 which covers the past changes or past transactions. The petitioner, therefore, cannot take benefit of the newly framed policy or Rule 27 of the Rules of 2017.
86. According to this Court, sub-rule(7) is not a positive provision covering petitioner's case - it is rather a deeming-fiction (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (29 of 34) [CW-12253/2019] which provides that the changes or transactions enlisted in clauses(i) to (v) of sub-rule(7) shall be treated to be a transfer.
87. According to this Court, the petitioner's contention that by virtue of newly incorporated Rule 27 of the Rules of 2017, previous consent for the cases covered under sub-rule(7) is not necessary, is absolutely untenable.
88. Sub-rule(7) postulates that every change in the composition or constitution of the lessee shall amount to transfer. Sub-rule(7) as a matter of fact, expands the scope of the transactions, which amount to transfer. The nature of transactions which the petitioner had entered have already been held to be transfer by the Apex Court. And, sub-rule(7) is nothing but a specific provision in the Rules so as to ward off any sort of confusion.
89. In other words, sub-rule(7) is not an independent provision and the same is part and parcel of the basic provision contained in Rule 27. Rule 27 begins with a mandate that lessee or licensee shall not without the previous consent in writing of the competent authority assign, sub-let, mortgage or in any other manner transfer the lease to third party and sub-rule(7) is an integral and inalienable part of Rule 27. Sub-rule(7) cannot be read in isolation and independent of sub-rule(1). Hence, it cannot be said that previous consent in writing as provided in sub-rule(1) would not be necessary.
90. If the stand of the petitioner is accepted, then an anomalous situation would arise. In case of an apparent transfer of mining lease, a lessee shall have to take prior permission, whereas in case of an ostensible or deceptive transfer, as has been attempted (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (30 of 34) [CW-12253/2019] to by the petitioner, no consent would be necessary. Such interpretation, if taken, would frustrate the provision of Rule 27 and shaken the public trust apart from giving a go bye to the concept that the mineral rights are within the domain of the State and they are required to be transferred in public interest.
91. It is to be noted that usually transfers are effected by way of sale deed/transfer deed, whereas the change in the constitution of firm as provided in clause(i) to (v) of sub-rule(7) takes place by virtue of procedure adopted under the relevant laws namely The Partnership Act or The Companies Act or other enactments under which the Constitution of the lessee is governed.
92. In the case of change of partnership firm to a company and/ or in the case of merger or amalgamation of two companies, the change takes place by operation of law and no separate document is required, as against the cases of transfers/sale etc: sub-rule(8) has been inserted in the manner provided. It enjoins upon a lessee or licensee to inform the concerned mining engineer or assistant mining engineer within a period of 60 days of such change having taken place. And it is because of such legal position, sub-rule(8) stipulates that the transfer shall be effected from the date of such change of partner or director as the case may be under the relevant law.
93. In other words, since, after the prior consent having obtained, the change in constitution of the lessee takes place by operation of law, a duty has been cast upon the lessee to inform the mining engineer within a period of 60 days and since act of information is only procedural act, clause(xix) of Rule 28 provides (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (31 of 34) [CW-12253/2019] that if the lessee fails to intimate the above mentioned change within the specified time, the same shall be done on payment of late fee @ Rs.500/- per day subject to maximum of Rs.2,00,000/-.
94. But such stipulation in clause (xix) cannot be construed to mean that the mere intimation after expiry of 60 days along with payment of late fee would be sufficient, so as to claim transfer without there being any prior permission from the State Government.
95. Learned counsel for the petitioner relied upon judgment in case of SEBI (supra) in support of its contention that Rules of 2017 is applicable retrospectively. This Court is unable to accept the contention of the petitioner that the Rules of 2017 are retrospective in nature and would apply to the transactions that have already taken place. Hon'ble the Supreme Court distinguished between the two terms "retrospective" and "retroactive". Retroactively of any law arises when it is to an act or transaction which is still underway, not completed and is in the process of completion. Just because a law operates on certain circumstances which are antecedent to its passing does not mean that it is retrospective if certain stages of that transaction are remaining.
96. May be, sub-rule(7) and (8) of Rule 27 having incorporated pursuant to the directions given by Hon'ble the Supreme Court, but there is no indication that the Rules will apply to already concluded transactions.
97. Needless to observe that the Rules of 2017 have been made effective from 01.03.2017. It is settled preposition of law that any (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (32 of 34) [CW-12253/2019] enactment or rules will have prospective applicability, unless by specific expression or intendment, the same have been meant to give retrospective effect.
98. This Court hardly finds anything in the Rules of 2017, particularly, Rule 27(8), which suggests that it will have retrospective applicability or it shall apply to the concluded transaction or the transaction already taken place.
99. As a matter of fact, sub-rule(8) enjoins upon the lessee or licensee to inform the Mining Engineer regarding any change as mentioned in sub-rule(7) of Rule 27. If the Framers of the rule so wanted, they could specifically provide that a lessee or licensee having effected transactions will be required to inform the competent authority within the period stipulated.
100. Since, nothing of that sort has been provided in sub-rule(7) and (8) of Rule 27, this Court is of the considered view that Rule 27(7) would apply from 01.03.2017 itself and prior transactions, including the transactions of the petitioner would be covered by the law laid down by Hon'ble Supreme Court in judgment dated 20.01.2016 in case of the petitioner (2016 (4) SCC 469).
101. According to this Court, if a lessee or licensee proposes to bring in change in the constitution, it has to take prior permission for such change. Since no inter-se document is required to be executed in the case of changes covered by sub-rule(7), only an intimation is imperative and would be sufficient, whereas in case of transfer of mineral rights by way of sale or assignment etc., a separate transfer deed in Form No.12 would be required to be executed.
(D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (33 of 34) [CW-12253/2019]
102. Such being the position, this Court has no hesitation in holding that in case of transfer - apparent or ostensible covered by sub-rule(1) or sub-rule(7) of Rule 27, prior consent in writing of the competent authority is a sine qua non.
103. In case of such transfers, effected after taking prior consent of the State Government, the lessee or licensee is supposed to apprise the mining engineer about the change within a period of 60 days. If the petitioner wanted to assert its rights by virtue of sub-rule(8), it ought to have informed the concerned mining engineer within 60 days of the Rules coming into force, even if it was of the view that prior consent was not required.
104. Indisputably, Rules of 2017 came into force on 01.03.2017 and the petitioner firstly moved the State Government by way of representation dated 10.05.2017. It is to be noted that such letter was addressed to the State Government and not to the concerned mining engineer. Apart from the fact that the representation has been made after expiry of 60 days, it has been addressed to a wrong authority.
105. Furthermore, a look at sub-rule(8) clearly suggests that the lessee shall inform regarding changes mentioned in sub-rule(7) along with the application and applicable fee and premium amount as per sub-rule(9). The petitioner had neither tendered the application fee nor had it deposited the premium amount as per sub-rule(9). Such being the position, even if it is assumed that the petitioner's case was required to be governed by sub-rule(7) and sub-rule(8) of Rule 27 of the Rules of 2017, since the petitioner has failed to comply with the mandate of sub-rule(8), (an (D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) [2024:RJ-JD:39385] (34 of 34) [CW-12253/2019] expression "shall" has been used), this Court is of the clear view that the petitioner's application was incompetent.
106. Since the petitioner failed to adhere to the statutory requirement, the mining lease which was existing in the name of Gotan Limestone Khanij Udhyog cannot be transferred to Gotan Limestone Khanij Udhyog Private Limited and then to Ultra Tech Cement Limited, as prayed.
107. This Court would further like to add that mineral rights are valuable resources of the State Government. Since they belong to the State and are to be dealt with and disposed off as per the doctrine of public trust. The petitioner's endeavor to surreptitiously transfer the mining rights to UTCL has been deprecated by Hon'ble the Supreme Court. Such endeavor cannot be validated in the manner as prayed by the petitioner.
108. Simply by paying a meagre amount of premium which as per sub-rule(9) would not be more than rupees ten lacs and nominal application fee of rupees twenty five thousands, the petitioner cannot achieve indirectly, what it cannot do directly.
109. As an upshot of discussions foregoing this Court affirms the decision dated 28.11.2017 passed by the State Government.
110. The writ petition, therefore, fails.
111. All pending interlocutory application(s), if any, stand disposed of.
(DINESH MEHTA),J Arvind-ArunV/-
(D.B. SAW/219/2022 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 05/11/2024 at 09:47:18 PM) Powered by TCPDF (www.tcpdf.org)