Jharkhand High Court
Padam Kumar Jain vs The Union Of India Through The Ministry ... on 20 May, 2016
Equivalent citations: 2017 (1) AJR 109
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 2515 of 2016
......
Padam Kumar Jain ....... Petitioner
Vrs.
The Union of India & Ors. ..... Respondents
.......
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
For the Petitioner : M/s Indrajit Sinha, Vijay Kant Dubey
& Krishna Ray, Advocates
For the State : Mr. Binod Poddar, A.G.
: Mr. Anil Kumar, J.C to A.G
............
04/20.05.2016The petitioner's predecessor in-interest was granted mining lease of Iron Ore over an area of 41.639 Hectares in village Rajabera of District West Singhbhum on 29th February, 1988 (Annexure-1) for a period of 20 years effective from 29 th February 1988 till 28th February 2008. Lease was transferred with the permission of the State Government in favour of the present petitioner on 2 nd March, 1997 (Annexure-2). Before expiry of the statutory period of 12 months prior to expiry of lease, he made an application for renewal on 23 rd February, 2007. The application for renewal remained pending. In the meantime, a show-cause was issued upon the lessee on 15 th June, 2015 (Annexure-9). Petitioner replied to the show-cause notice on 29 th June, 2015 (Annexure-10). A second show-cause notice was also furnished on 31st July, 2015 (Annexure-11) to which he submitted his reply on 19th August, 2015. Inter Departmental Committee constituted by the State Government heard the petitioner on 24.08.2015 and finally by the impugned order dated 1st April, 2016 bearing memo no.884/M (Annexure-13) the application for extension of the lease has been rejected. Petitioner has approached this Court against the said order of rejection. He has also questioned the constitution of Inter Departmental Committee vide notification dated 9.6.2015 as beyond the power conferred upon the State Government by the MMDR Act, 1957 (Section 2. 26(2) and Section 28(3) MMDR Act). Petitioner has also prayed for declaration that the mining lease granted on 29th February, 1988 should be deemed to have been granted for a period of 50 years w.e.f. the said date in terms of Section 8A(3) of the Mines and Minerals (Development and Regulation) Act, 1957 as amended by the Mines and Minerals (Development and Regulation) Amendment Act, 2015. Petitioner's has also made a prayer for quashing the show-cause notice and for setting aside the notification bearing no.257 dated 18 th April, 2016 published in the official gazette on 20 th April, 2016 by which the mines of the petitioner has been notified for auction in terms of Mineral (Auction) Rules, 2015.
2. Learned counsel for the petitioner, at the outset, submits that mining lease was not under operation since 2011. He further submits that the approval of the mining plan has been made lastly on 23 rd April 2015 vide Annexure-A-5/1 with validity up to 31st March, 2018. The application for environmental clearance made on 22 nd June, 2015 (Annexure A/6) is still pending. He has made an application for grant of consent to operate from Jharkhand State Pollution Control Board (Annexure-A/8) which has remained pending for want of environmental clearance. These statutory clearances are required to be obtained by the petitioner.
3. Learned counsel for the petitioner submits that out of 41.639 Hectares of the leasehold land, only 4.67 Hectares is reported to be a Jangal-Jhari and therefore deemed to be forest land. No mining operation has been carried out in the said area. It is also pointed out that in the 1st and 2nd show-cause notices, no such ground was taken, rather the Government of Jharkhand has stated that the leasehold area is a non-forest area. However, the petitioner, if required, would obtain 3. forest clearance and would not undertake to work on forest area without obtaining the statutory clearance. It is further stated that up to date royalty clearance certificate dated 13th April, 2014 has been issued by the District Mining Officer and the same was submitted along with its reply. Petitioner contends that allegation relating to violation of Ministry of Mines' letter no.F.No.10/75 /2008-MV issued under Rule 27(3) of Mineral Concession Rules, 1960 regarding mineral exploration was never made in the show-cause notice. However, exploration has been done and it forms part of the mining scheme which was approved by the Indian Bureau of Mines. Counsel for the petitioner contends that in view of the judgment rendered by the Apex Court in the case of Common Cause vs. Union of India dated 4th April, 2016, the allegation relating to violation of Rule 28/28A of Mineral Concession Rules, 1960 relating to lapse of mining lease are no longer available to be taken as there is no such order or declaration by the State Government before 12th January, 2015. In respect of the allegation relating to violation of the terms and conditions of the lease deed, It is submitted that no dues certificate has been submitted on 24th May, 2015. The demand of surface rent has been quashed by this Court and the matter is pending in appeal before the Hon'ble Supreme Court of India. Charges relating to excess mining are also subject matter of W.P.(C) No.1524/2013. In respect of the violation relating to para-2 of Part-VII of Form 'K', it is submitted that the Government approved surveyor namely Gem Surveyors has been issued work order to undertake survey which has also been concluded. Pillars, corner pillars and intermediate lease boundary pillars are already in place and discrepancy, if any, would be rectified. So far as allegation of violation of para-11(c) of Part-VII of Form 'K' is concerned, it is the subject matter of W.P.(C) No.1524/2013. 4. Petitioner has questioned the demand as being without jurisdiction. Counsel for the petitioner further has pointed out in respect of allegation of violation of Para-18 of Part-VII of Form 'K' that the said allegations are unfounded. The lease is a non-captive lease and there is no restriction under law that the ore cannot be sold to one person. Therefore, there is no violation of any provision of the lease deed or the Mineral Concession Rules, 1960. In respect of violations observed by Justice M.B. Shah Commission on the aforesaid lease, it has been submitted that no mining operations have been carried out in contravention of the Environment (Protection) Act, 1986. All mining operations have been stopped since 2011 for this reason only. Environmental clearance has already been applied for and terms of reference have already been granted. Only thereafter, the petitioner can carry the mining operation. The allegation relating to difference in monthly return filed by lessee are vague. No details have been given in respect of as to in which monthly return, there was a difference in figures of IBM and DMG.
4. Learned counsel for the petitioner submits that the case of the petitioner being of first renewal and his application for renewal having been made before expiry of 12 months from the date of expiry of the lease, petitioner would be entitled to treat his lease as having been granted for a period of 50 years in terms of the provisions of Section 8A(3) of the Amendment Act, 2015 as held by the Hon'ble Supreme Court in the case of Common Cause vs. Union of India (Writ Petition (Civil) No. 194/2014) vide judgment dated 4 th April, 2016. It is further submitted that the application for renewal of lease was not rejected before 12th January, 2015 i.e. the date of coming into force of the Amendment Act, 2015 and no declaration of lapse of lease has been 5. made. Therefore, petitioner is entitled to be treated as subsisting lessee as on 12.1.2015. Learned counsel for the petitioner further submits that in terms of the provisions of the amended Rule 24 A(6) of the Mineral Concession Rules, petitioner's lease would be treated to be subsisting for a period of two years from 18 th July, 2014 up to 18th July, 2016 as there was no rejection of his application for renewal.
5. Having regard to the declaration of law rendered by the Apex Court in the case of Common Cause (supra) and the provisions of amended Rule 24A(6), the State Government was required to treat the mining lease of the petitioner as subsisting till 18th July 2016, more so, when neither the mining lease was terminated or declared as lapsed and when no rejection of its renewal application was made prior to coming into force of the Amendment (MMDR) Act, 2015 on 12 th January, 2015. Petitioner submits that unless and until petitioner is treated to be a subsisting lessee, the statutory clearance required to be obtained cannot be considered and granted by the respective statutory authorities. Counsel for the petitioner however submits that the petitioner is conscious of the fact that the statutory clearances are required to be obtained and no mining operation can be conducted till all clearances are obtained and terms and conditions of the lease are also satisfied. Learned counsel for the petitioner has also prayed for a reasonable time of 6 months for obtaining statutory clearances from the concerned authorities and compliance of the terms and conditions of the lease, if any.
6. Learned counsel for the petitioner has relied upon interim orders passed by this Court in W.P.(C) Nos. 2027/2016, 6358/2015 and 2207/2016 dated 21.04.2016 and 28.04.2016. He submits that case of those writ petitioners are also of first renewal. He further submits that 6. the case of the petitioner is similar to that of petitioner in W.P.(C) No.6358/2015. In the said case also, the rejection of renewal for extension of lease was made after 12 th January, 2015, However the statutory clearance had not been obtained by the said petitioner.
7. It is submitted that having regard to the legal position now laid down in the judgment rendered in the case of Common Cause (supra), the rejection of renewal application by the State Government by the order dated 22nd January, 2016 i.e. after coming into force the Amendment Act, 2015 on 12th January, 2015 and the deeming provisions of the Amendment Act, 2015 specifically sub-section (3), (5) and (6) of Section 8A, cannot be said to have any legal effect. Learned counsel for the petitioner submits that therefore the petitioner deserves parity in treatment so far as the interim protection is concerned. Unless the impugned order is stayed and the petitioner is treated to be a subsisting lessee, it cannot seek the statutory clearance.
8. Learned Advocate General has appeared in the matter. When the matter was earlier taken up on 16th May, 2016, learned Advocate General represented the State and also made a prayer for time for instruction to be obtained in the matter. However, no affidavit in response has been filed in the matter. Learned Advocate General submits that there is an alternative remedy of revision under MMDR Act, 1957 available to the petitioner before Central Government Mining Tribunal, to which he may be relegated. He however, submits that on the issues raised herein as well as assertion of the facts made, he needs some more time to obtain instructions and file counter affidavit.
9. Learned counsel for the petitioner has submitted that the issues involved herein are relating to the jurisdiction of the State Government now to pass an order of rejection of his renewal application after 7. coming into force of the MMDR (Amendment) Act, 2015 with effect from 12.01.2015. The intricate questions of law involved cannot be properly adjudicated by the Revisional Authority. It is also pointed out that the impugned order contains only the charges in respect of alleged violations. However, even on filing of the reply to the show cause notice there are no specific findings on the alleged violations. In that sense, the impugned order is non-speaking and amenable to judicial review under the writ jurisdiction of this Court. He again reiterates his submission that the case of the petitioner falls on similar footing as that of the cases referred to hereinabove.
10. Learned counsel for the petitioner submits that consequent to the rejection order, the Deputy Commissioner, West Singhbhum, Chaibasa has directed the petitioner to hand over the leasehold area, failing which respondent authorities would take unilateral steps for taking over possession.
11. I have considered the submission of the parties in the light of the relevant material facts pleaded. From the narration of facts recorded hereinabove, it is evident that the present case is that of first renewal. Petitioner' original lease expired on 28th February, 2008 and it had made an application for renewal on 23rd February, 2007. It is also evident that the Amendment Act, 2015 has come into effect from 12th January, 2015 . The order of rejection of renewal application has not been made prior to 12th January, 2015. The Hon'ble Supreme Court in the judgment rendered in the case of Common Cause (Supra) has after interpreting the relevant provision of Section 8A summarized the conclusion at para 32 of the said judgment, which is quoted hereinbelow as they have a definite bearing on the instant case. 8.
32. Based on the considerations recorded above, we summarise our conclusions as under:
(i) A leaseholder would have a subsisting mining lease, if the period of the original grant was still in currency on 12.1.2015.
Additionally, a leaseholder whose original lease has since expired, would still have a subsisting lease, if the original lease having been renewed, the renewal period was still in currency on 12.1.2015. Such a leaseholder, would be entitled to the benefit of Section 8A of the amended MMDR Act.
(ii) A leaseholder who had not moved an application for renewal of a mining lease (which was due to expire, prior to 12.1.2015), at least twelve months before the existing lease was due to expire, under the provisions of the unamended MMDR Act and the Mineral Concession Rules, will be considered as not a valid/subsisting leaseholder, after the expiry of the lease period. The provisions of the amended MMDR Act will therefore not enure to the benefit of such leaseholder.
(iii) A leaseholder who has moved an application for renewal (of the original/first or subsequent renewal) of a mining lease, at least twelve months before the existing lease was due to expire, and on consideration, such an application has been rejected, will be considered as not a valid/subsisting leaseholder. The provisions of the amended Section 8A of the MMDR Act will not enure to the benefit of such leaseholder, because of the express exclusion contemplated for the above exigency, under Section 8A(9) of the amended MMDR Act.
(iv) A leaseholder who has moved an application for "first renewal" of the original mining lease, at least twelve months before the original lease was due to expire, and such application has not been rejected, will be considered to be a valid leaseholder having a subsisting right to carry on mining operations, till the expiry of two years after 18.7.2014, i.e., up to 17.7.2016, as is apparent from a conjoint reading of the unamended and amended Rule 24A of the Mineral Concession Rules. Such leaseholder would have the benefit of sub-sections (5) and (6) of Section 8A of the 10 amended MMDR Act.
(v) A leaseholder who had moved a second (third or subsequent) renewal application under Section 8(3) of the unamended MMDR Act, at least twelve months before the renewed lease was due to expire, and whose application had not been considered and rejected (though not entitled to any benefit under the unamended Section 8A of the MMDR Act and the amended Rule 24A(6) of the Mineral Concession Rules) up to 12.1.2015, would still have the benefit of sub- 9. sections (5) and (6) of Section 8A of the amended MMDR Act, in view of the situation sought to be remedied by the Mines and Minerals (Development and Regulation) Amendment Act, 2015.
(vi) Consequent upon the amendment of Section 8A of the MMDR Act, the regime introduced through sub-sections (5) and (6) thereof, provides for three contingencies where benefits have been extended to leaseholders whose lease period had earlier been extended by a renewal. Firstly, for a leaseholder whose renewal period had expired before 12.1.2015, and the leaseholder had moved an application for renewal at least twelve months before the leaseholder's existing lease was due to expire, and whose application has not been considered and rejected, the lease period would stand extended up to 31.3.2030/31.3.2020 (in the case of captive/non- captive mines, respectively). Additionally, a leaseholder whose period of renewal would expire after 12.1.2015, but before 31.3.2030/31.3.2020, the lease period would stand extended up to 31.3.2030/31.3.2020 (in the case of captive/non-captive mines, respectively).Secondly, where the renewal of the mining lease already extends to a period beyond 31.3.2030/31.3.2020 (in the case of captive/non captive mines, respectively), the lease period of such leaseholders, would continue up to the actual period contemplated by the renewal order. Thirdly, a leaseholder would have the benefit of treating the original lease period as of fifty years. Accordingly, even during the renewal period, if the period of the mining lease would get extended (beyond the renewal period) by treating the original lease as of fifty years, the leaseholder would be entitled to such benefit. Out of the above three contingencies provided under sub- sections (5) and (6) of Section 8A, the contingency as would extend the lease period farthest, would enure to the benefit of the leaseholder.
(vii) Based on the interpretation placed by us on Section 4A(4) of the MMDR Act, and Rule 28 of the Mineral Concession Rules, we can draw the following conclusions. Firstly, unless an order is passed by the State Government declaring, that a mining lease has lapsed, the mining lease would be deemed to be subsisting, up to the date of expiry of the lease period provided by the lease document. Secondly, in situations wherein an application has been filed by a leaseholder, when he is not in a position to (or for actually not) carrying on mining operations, for a continuous period of two years, the lease period will not be deemed to have lapsed, till an order is passed by the State Government on such application. Where 10. no order has been passed, the lease shall be deemed to have been extended beyond the original lease period, for a further period of two years. Thirdly, a leaseholder having suffered a lapse, is disentitled to any benefit of the amended MMDR Act, because of the express exclusion contemplated under Section 8A(9) of the amended MMDR Act." (underline added not part of original text).
12. Having regard to the legal position now laid down in the judgment rendered in the case of Common Cause (Supra), the rejection of application for extension of lease by the State Government by the impugned order dated 1st April, 2016 i.e. after coming into force of Amendment Act, 2015 on 12th January, 2015 and the deeming provisions of the Amendment Act, 2015, specifically Sub-Section (3), (5) and (6) of Section 8A, appears to be wholly out of place. The provisions of Amendment Act, 2015 specifically Section 8(A), as interpreted in the judgment rendered in the case of Common Cause (Supra) by the Apex Court, Para-32 thereof also lead to a prima facie view that the petitioner being an applicant for the first renewal and having made its application on 23.02.2007 within statutory time prior to expiry of the original lease, is entitled to treat its lease to continue for a period of 50 years from the date of original lease.
13. However, it is to be taken note of at this stage that the Hon'ble Supreme Court in the same judgment at para 27 has held in the following manner.
"27. Irrespective of the position noticed herein above, it is imperative for us to clarify, that the benefit of extension of the lease period postulated under Section 8A of the MMDR Act is available, subject to a further overriding condition, namely, "... that all the terms and conditions of the lease have been complied with". A leaseholder who does not satisfy any of the required conditions of the lease, as for instance, the postulated clearances/approvals/ consent, would not be entitled to the benefits extended under subsection (5) or (6) of Section 8A of the amended MMDR Act".11.
14. In effect, the benefit of deeming extension would not be available to lease holder who does not satisfy any of the required conditions of the lease as for instance, the postulated clearance/approvals /consent in terms of sub-section (5) or (6) of Section 8A of the Amendment Act, 2015. As is also apparent from the pleadings in the present case and undisputed by the parties, the lessee has not obtained the statutory clearances like environmental clearance and Forest clearances and also the consent to operate from the State Pollution Control Board. Lessee is also required to satisfy any of the terms and conditions of lease which have remained unsatisfied. Lessee therefore would not be entitled to operate such mines till the period such statutory clearances are obtained and terms and conditions of the lease are satisfied.
15. It would not be out of place to mention herein that in the case of Common Cause (supra) itself the Hon'ble Apex Court by order dated 16.5.2014 had restrained 102 mining lease holders from carrying on any mining operations as they had failed to obtain statutory clearances/ approval/consent required to carry the mining operations. The judgment dated 4.4.2016 (Supra) has been rendered on an application filed by those mine lease holders seeking revocation of the order of suspension claiming to have obtained statutory clearances/approval/consent etc. 16 In such circumstances, and in view of the discussions made hereinabove in the light of deeming provisions of Amendment Act, 2015 as held by the Apex Court in the case of Common Cause (Supra), the order dated 1st April, 2016 (Annexure-13) is stayed till the next date of hearing. Consequently, the order dated 5th April, 2016 (Annexure-14) is also stayed. Petitioner is however restrained from carrying out mining operations in the meantime.
12.
17. Learned A.G has prayed for 3 weeks' time to obtain instructions on the averments made in the writ petition as also on the assertion of the petitioner relating to compliance of certain statutory clearances.
18. As prayed for by learned A.G., list this case on 16th June, 2016 when other cases raising similar issues are posted such as W. P. (C) Nos. 2207/2016 and 2027 of 2016.
(Aparesh Kumar Singh, J.) Shamim/