Jharkhand High Court
Bharat Poddar vs The State Of Jharkhand on 18 March, 2025
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 2608 of 2016
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Bharat Poddar, Son of Shri Basant Poddar, Resident of "Poddar Niket", Bariatu Road, P.O. & P.S. Bariatu, District Ranchi-834009. ... ... ... Petitioner Versus
1. The State of Jharkhand, Department of Mines & Geology, through its Secretary, having its office at Project Building, P.O. Dhurwa, P.S. Hatia, District Ranchi.
2. Deputy Secretary, Mines & Geology Department, Government of Jharkhand, having its office at Project Building, P.O. Dhurwa, P.S. Hatia, District Ranchi.
3. Director (Mines), Mines & Geology Department, Government of Jharkhand, having its office at Project Building, P.O. Dhurwa, P.S. Hatia, District Ranchi.
4. Deputy Commissioner, Palamau, P.O., P.S. & District Medninagar.
5. District Mining Officer, Palamau, P.O., P.S. & District Medninagar. ... ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Petitioner : Mrs. Diksha Dwivedi Advocate For the Respondent : Mr. Jai Prakash, AAG-IA Ms. Ruchi Mukhi, AC to AAG-IA
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CAV on 14/02/2025 Pronounced on 18/03/2025 Per Sujit Narayan Prasad, J:
1. The instant writ petition, under Article 226 of the Constitution of India, has been filed for the following reliefs:
(I).For a direction upon the concerned Respondents to forthwith grant prospecting mining lease to the Petitioner under Section 10(3) of the Mines and Minerals (Development and Regulation) Act, 1957, in respect of the Application dated 14.07.2011 (Annexure-1), which was filed by the Petitioner - 1 - W.P.(C) No. 2608 of 2016 for grant of prospecting license of Graphite Ore in Village Ekta, Lesliganj, Palamau, especially in view of the fact that the said application was duly processed vide Letter No. 34 dated 21.01.2013 (Annexure-4), all the documents were duly verified and found to be correct by the concerned Respondents vide letter No. 511 dated 16.08.2014 (Annexure-5) and as per File Note Sheet dated 09.01.2015 and dated 12.01.2015 (Annexure-6 Series) by which the proposal for publication of Notification of proposed area was made and only the prospecting license was required to be issued to the Petitioner by the Respondent Department, which could not be made due to operation of Code of Conduct and therefore newly inserted Section 10A of the Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015, cannot be made applicable in the case of the Petitioner.
II. For a declaration that new inserted Section 10A of the Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015, which provides that all applications received prior to the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015 shall become ineligible, shall not apply in the case of the Petitioner on the ground that the application has been duly processed, all the documents were duly verified and found to be correct by the concerned Respondents and only the prospecting license was required to be issued to the Petitioner by the Respondent Department - 2 - W.P.(C) No. 2608 of 2016 under section 10(3) of the Mines and Minerals (Development and Regulation) Act, 1957.
Factual Matrix
2. The facts, as narrated in the writ petition, in brief, is that the writ petitioner filed an application dated 14.07.2011 before the Secretary, Mines and Geology Department, Government of Jharkhand (Respondent No. 1) for prospecting license of Graphite Ore in the Village Ekta, Lesliganj, Palamau under Section 10(1) of the Mines and Minerals (Development and Regulation) Act, 1957 read with Rule 9(1) of the Mineral Concession Rules, 1960, along with all the relevant papers and documents as required under the provisions of said Act and Rules made thereunder.
3. On receipt of the aforesaid, the Respondent No. 3- Director (Mines), Mines & Geology Department, Government of Jharkhand forwarded the same to the concerned authority for its processing and verification and accordingly, the Circle Officer, Satbarwa, Palamau vide letter No. 176 dated 17.12.2011 submitted its report along with map, after due verification of the application by the Circle Office, to the Assistant Mining Officer, Palamau, Medninagar.
4. However, in the meantime, the Deputy Director, Mines and Geology, Daltonganj vide Letter No. 68 dated 16.08.2012 also submitted its Geological Report with respect to the application of the writ petitioner, to the Director, Mines and - 3 - W.P.(C) No. 2608 of 2016 Geology, Ranchi (Respondent No. 4) after thorough inspection of the applied area.
5. Subsequently, the Deputy Commissioner, Palamau (Respondent No. 5) vide Letter No. 34 dated 21.01.2013 forwarded all the relevant papers and documents along with the reports of the Circle Officer, Satbarwa, Deputy Director, Mines & Geology, Daltonganj and Divisional Forest Officer, Medninagar for further processing in granting prospecting license to the petitioner.
6. The Deputy Secretary, Mines & Geology Department (Respondent No. 3) vide letter No. 1518 dated 22.07.2014 has forwarded all the relevant papers and documents, as mentioned in the said letter to the Assistant Mining Officer, Palamau for due verification and attestation of the same.
7. The Assistant Mining Officer, Palamau after due verification and attestation of the same, vide its letter No. 511 dated 16.08.2014 forwarded those papers/documents to the Respondent No. 3, mentioning therein, inter alia, that the area applied for by the petitioner is suitable for grating prospecting license.
8. It is the case of the petitioner that he had duly applied for the prospecting license before the Respondent No. 2 for Graphite Ore vide application dated 14.07.2011 filed under Section 10 (1) of the Mines and Minerals (Development and Regulation) Act, 1957, along with all the relevant papers and - 4 - W.P.(C) No. 2608 of 2016 documents, as required under the provisions of the Act and his application was duly forwarded to the Respondent No. 2, mentioning therein, inter alia, that the area applied for by the petitioner is suitable for grating prospecting license.
9. It has been submitted that the respondents were/are duty bound to pass an order granting or rejecting the application for prospecting license to the petitioner under Section 10(3) of the Mines and Minerals (Development and Regulation) Act, 1957, but no order, whatsoever was passed by the Respondent.
10. Being aggrieved with the same, the petitioner has approached this Court to forthwith grant prospecting mining licence to the petitioner under Mines and Minerals (Development and Regulation) Act, 1957, in respect of the Application dated 14.07.2011 and further declaration that new inserted Section 10-A(1) of the Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015, which provides that all applications received prior to the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015 shall become ineligible, shall not apply in the case of the Petitioner. Submission made on behalf of petitioner:
11. Learned counsel for the petitioner has submitted that the petitioner had duly applied for the prospecting license before the Respondent No. 2 for Graphite Ore vide application - 5 - W.P.(C) No. 2608 of 2016 dated 14.07.2011 under Section 10 (1) of the Mines and Minerals (Development and Regulation) Act, 1957, along with all the relevant papers and documents, as required under the provisions of the Act and the his application was duly forwarded to the Respondent No. 3, mentioning therein, inter alia, that the area applied for by the Petitioner is suitable for granting prospecting license.
12. It has further been submitted that on the said application of the petitioner, the concerned Circle Officer, after due verification, submitted its report. Thereafter, the Deputy Commissioner, Palamau vide letter dated 21.01.2013 forwarded all the relevant papers and documents along with the report so submitted by the Circle Officer for granting prospecting license to the petitioner. Thereafter, Deputy Secretary, Mines & Geology Department vide letter dated 22.07.2014 forwarded all the relevant papers and documents to the Assistant Mining Officer, Palamau for due verification and attestation. After due verification, the Assistant Mining Officer, Palamau forwarded those papers to respondent no. 3- Director (Mines), Mines & Geology Department, Government of Jharkhand mentioning therein that the area applied for by the petitioner is suitable for granting prospecting license.
13. But the respondent no. 3 did not pass any order either the order granting or refusing to grant the prospecting license to the petitioner under Section 10(3) of the MMDR Act, 1957. - 6 - W.P.(C) No. 2608 of 2016
14. Submission has been made that a new Section has been inserted in the MMDR Act, 1957 i.e., Section 10 (A)(1) which provides that applications received prior to the date of commencement of the MMDR Act, 2015 shall become ineligible shall not apply in the case of the petitioner on the ground that the application has been duly processed vide letter dated 21.01.2013 and found to be correct by the concerned respondent vide letter dated 16.08.2014 and only the prospecting license was required to be issued to the petitioner under Section 10(3) of the MMDR Act, 1957.
15. Further submission has been made that as per File Note dated 09.01.2015 and 12.01.2015, which has been annexed as Annexure 6 series to the writ petition, it is evident that proposal for publication of notification of proposed area was made and only the prospecting license was required to be issued to the petitioner by the respondent department, which could not be made due to operation of Code of Conduct and therefore, newly inserted Section 10-A sub clause 1 of the MMDR Act, cannot be made applicable in the case of the petitioner.
16. Learned counsel for the petitioner further submitted that the application for prospecting license was filed on 14.07.2011, which was required to be disposed of to be in either way i.e., by granting license or refusing to grant license, within a period of nine months from the date of - 7 - W.P.(C) No. 2608 of 2016 submission of such application, as per mandate of Rule 63A of the Mineral Concession Rules, 1960 wherein time limit has been provided to the State Government to dispose of application for reconnaissance permit, prospecting licence and mining lease.
17. Learned counsel for the petitioner has submitted that even there is no laches on the part of the petitioner and law has been amended with effect from 12.01.2015, as such no adverse decision is permissible on the basis of amended law. It has been contended by referring to Annexure 6 series which is a document obtained under the RTI Act, 2005 wherefrom as per the petitioner it would be evident that the procedure has been commenced for the purpose of taking final decision with respect to the issuance of letter of intent but due to the ensuing elections and in consequence thereof, the model code of conduct has been imposed hence the decision has not been taken. Therefore, the argument has been advanced that if due to the act of the State Government, the decision could not have been taken and in the meanwhile the Act has been amended w.e.f. 12.01.2015 by insertion of provision of Section 10-A of the Act, 1957 amended in the year 2015 then declining the issuance of the license is highly arbitrary and illegal.
18. In view thereof, prayer has been made that newly inserted Section 10(A)(1)of the Mines and Minerals - 8 - W.P.(C) No. 2608 of 2016 (Development and Regulation) Amendment Ordinance, 2015, which provides that all applications received prior to the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015 shall become ineligible, shall not apply in the case of the petitioner and forthwith grant prospecting mining lease to the petitioner under Section 10(3) of the Mines and Minerals (Development and Regulation) Act, 1957, in respect of the application dated 14.07.2011.
19. Further the learned counsel for the writ petitioner has raised the principle of legitimate expectation and submitted that the petitioner has changed/altered its position and further all necessary procedures and formalities had been complied with therefore in the instant case provision of section 10 (A) (1) of the Act, 1957 amended in the year 2015 will not be applicable and as such declaring pending application ineligible is highly arbitrary and illegal.
20. To buttress this limb of argument, the learned counsel for the writ petitioner has relied upon the paragraph 28 of the Judgment rendered by the Hon‟ble Apex Court in the case of State of West Bengal and Another Vs Chiranjilal (Mineral) Industries of Bagandih and Another reported in 2023 SCC OnLine SC 1149.
Submission on behalf of respondents-State: - 9 - W.P.(C) No. 2608 of 2016
21. While on the other hand, learned AAG-I A appearing for the State has submitted that the question involves herein with respect to the interpretation and implementation of Section 10A of the MMDR Amendment Ordinance, 2015 and MMDR Amendment Act, 2015 which has come into force w.e.f. 12.01.2015.
22. The petitioner had applied for grant of prospective license for graphite over an area of 26.76 acres in village Ekta, Palamau on 14.07.2011 under the Mineral Concession Rules, 1960. Admittedly, the aforesaid prospection license of the petitioner was forwarded by the Deputy Commissioner, Palamau to the Director, Mines over an amended area of 24.11 acres vide letter dated 21.01.2013 along with the report of Circle Officer, Satbarwa, Divisional Forest Officer, Medininagar and Deputy Director, Geology, Daltonganj.
23. It has further been submitted that during pendency of the aforesaid prospection application of the petitioner before the Department of Mines & Geology, Government of Jharkhand, the Central Government promulgated the Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015 on 12th of January, 2015, which was passed as an Amendment Act, 2015.
24. Learned AAG-I appearing for the State has submitted that there is no provision of saving of such prospecting - 10 - W.P.(C) No. 2608 of 2016 license application under Section 10-A (2) of the MMDR Act, merely on account of its procession prior to 12.01.2015.
25. Further, the Department of Mines & Geology, State of Jharkhand taking into consideration the aforesaid facts and Section 10(A)(1) of the MMDR Act has also passed orders declaring all such pending applications as ineligible vide letter dated 11.05.2015.
26. Learned AAG-I A has further submitted that now as per present regime all such areas are proposed to be settled by auction in terms of Mineral Auction Rules, 2015. Therefore, all applications received prior to the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 shall become ineligible.
27. Further submission has been made that the case of the petitioner is not covered by the provisions contained in Section10(A)(2) which carves out an exception to the provisions of Section 10(A)(1) of the MMDR Act, (as amended). Further, there is no protection to such applications submitted prior to the cut-off date i.e., 12.01.2015 as such the prayer of the petitioner cannot be acceded to.
28. Learned counsel for the State has submitted that Section 10A (1) mandates for the ineligibility conditions of one or the other applicants but the exception has been carved out under Section 10A (2) (c) wherein in case of availability of either of the conditions i.e., approval of the Central - 11 - W.P.(C) No. 2608 of 2016 Government as to the obtained under Section 5 of the Act, 1957 or the letter of intent has been issued by the State Government containing therein certain conditions subject to fulfillment within a period of two years from the date of receipt of letter of intent then only the ineligibility criteria as provided under Section 10A (1) will have no prevailing effect due to amendment by virtue of insertion of Section 10A(1) of the Act, 1957.
29. It has been contended that even accepting the documents, which has been appended as Annexure 6 series, then also no caseis made out for the purpose of helping the writ petitioner eligible on account of availability of the condition as stipulated under Section 10A (2) (c).
30. It has further been contended that even accepting that there is delay in taking decision by the Government but the fact remains that the rider which has been created to come out from the rigour of provision of Section 10A(1) will be only in a case of availability of either of the two conditions i.e., with the prior approval of the Central Government, as required to be obtained under Section 5 of the Act, 1957 or the letter of intent issued by the State Government subject to fulfillment of its conditions within a period of two years. But none of the conditions have been fulfilled and as such the eligibility criteria as contained under Section 10(A)(1) of the Act, 1957 cannot have over-riding effect.
- 12 - W.P.(C) No. 2608 of 2016
31. Further submission has been made that the reliance which has been made on behalf of learned counsel for the petitioner in the case of State of West Bengal and Another Vs Chiranjilal (Mineral) Industries of Bagandih and Another (supra), in particular paragraph 28 thereof is no aid to the petitioner reason being that case of the petitioner is not falling in the second or third category as specified by the Hon‟ble Apex Court.
32. The learned State counsel on the basis of aforesaid argument has submitted that the case of the petitioner therefore needs to be dismissed.
Analysis
33. We have heard the learned counsels for the parties and gone through the pleadings made in the writ petition as also in the counter-affidavit.
34. This Court before entering in to merit of the case, would like to refer herein the relevant Articles of Constitution of India and the provisions of the MMDR Act, 1957.
35. It needs to refer herein that Article 246 of the Constitution of India stipulates legislative powers of Central and State Government, wherein, the Seventh Schedule of the Constitution of India provides the subject- matter of legislation by Parliament and State Legislatures. As per Entry 54 of List I (Union List), the Central Government has powers for "regulation of mines and mineral development - 13 - W.P.(C) No. 2608 of 2016 to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest". According to Entry 23, List II (State List), the State Governments have powers for "regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union".
36. As per the aforesaid stipulation the Mines and Minerals (Development and Regulation) Act, 1957 was enacted by the Parliament wherein by virtue of Section 2 of the MMDR Act it has been declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided. Section 2 of the MMDR Act, 1957 reads as follows:
"2. Declaration as to the expediency of Union control.--It is hereby declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided."
37. The MMDR Act, 1957, inter alia, provides for procedures to grant mineral concessions, regulate mining activities and provisions for mineral development in the country. Section 4 of the MMDR Act, 1957 reads as follows:
"4. Prospecting or mining operations to be under licence or lease.-- (1) No person shall undertake any reconnaissance, prospecting or mining operations in any - 14 - W.P.(C) No. 2608 of 2016 area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and the Rules made thereunder:
∗∗∗ (2) No reconnaissance permit, prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the Rules made thereunder."
38. Further Section 6 of the MMDR Act, 1957 reads as follows:
"6. Maximum area for which a prospecting licence or mining lease may be granted.-- [(1) No person shall acquire [∗∗∗] in respect of any mineral or prescribed group of associated minerals [in a State]--
(a) one or more prospecting licences covering a total area of more than twenty-five square kilometres; or (aa) one or more reconnaissance permit covering a total area of ten thousand square kilometres:
Provided that the area granted under a single reconnaissance permit shall not exceed five thousand square kilometers; or]
(b) one or more mining leases covering a total area of more than ten square kilometres:
Provided that if the Central Government is of the opinion that in the interest of the development of any mineral or industry, it is necessary so to do, it may, for reasons to be recorded by it in writing, permit any person to acquire one or more prospecting licences or mining leases covering as area in excess of the aforesaid total area;
(c) any reconnaissance permit, mining lease or prospecting licence in respect of any area which is not compact or contiguous:- 15 - W.P.(C) No. 2608 of 2016
Provided that if the State Government is of opinion that in the interests of the development of any mineral, it is necessary so to do, it may, for reasons to be recorded in writing, permit any person to acquire a reconnaissance permit, prospecting licence or mining lease in relation to any area which is not compact or contiguous.] (2) For the purposes of this section, a person acquiring by, or in the name of, another person a reconnaissance permit, prospecting licence or mining lease which is intended for himself shall be deemed to be acquiring it himself."
39. The aforesaid provision specifically mentioned with regard to the maximum area for which a prospecting licence or mining lease may be granted. If it exceeds the area as contained in clauses (a), (aa) and (b) it is protected under the proviso to the effect that if the Central Government is of the opinion that in the interest of the development of any mineral or industry, it is necessary so to do, it may, for reasons to be recorded by it in writing, permit any person to acquire one or more prospecting licences or mining leases covering as area in excess of the aforesaid total area. Thereby, the rights have been protected by such proviso incorporated under Section 6(b) of the Act itself.
40. Further Section 11 of the MMDR Act, 1957 (before insertion of amendment 2015) reads as follows:
"11. Preferential right or certain persons.--(I) Where a reconnaissance permit or prospecting licence has been granted in respect of any land, the permit-holder or the licensee shall have a preferential right for obtaining, a - 16 - W.P.(C) No. 2608 of 2016 prospecting licence or mining lease, as ease may be, in respect of that land over any other person:
Provided that the State Government is satisfied that the permit-holder or the licensee as the case may be,-- (a) has undertaken reconnaissance operations or prospecting operations, as the case may be, to establish mineral resources in such land; (b) has not committed any breach of the terms and conditions of the reconnaissance permit or the prospecting licence: (c) has not become ineligible under the provisions of this Act; and (d) has not failed to apply for grant o Iprospecting licence or mining lease, as the case may be, within three months after the expiry of reconnaissance permit or prospecting licence, as the case may be, or within such further period, as may be extended by the said Government. (2) Subject to the provisions of sub-section (1), where the State Government has not notified in the Official Gazette the area for grant of reconnaissance permit or prospecting licence or mining lease, as the case may be, and two or more persons have applied for a reconnaissance permit, prospecting licence or a mining lease in respect of any land in such area, the applicant whose, application was received earlier, shall have the preferential right to be considered for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, over the applicant whose application was received later: Provided that where an area is available for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, and the State Government has invited applications by notification in the Official Gazette for grant of such permit, licence or lease, all the applications received during the period specified in such notification and the applications which had been received prior to the publication of such notification in respect of the lands within such area and had not been disposed of, shall be deemed to have been received on the same day for the purposes of assigning priority under this sub-section: Provided further that where any such applications are received on the same day, the State - 17 - W.P.(C) No. 2608 of 2016 Government, after taking into consideration the matter specified in sub-section (3), may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be to such one of the applicants as it may deem fit.
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41. On perusal of the aforesaid provisions, it is made clear that where a reconnaissance permit or prospecting licence has been granted in respect of any land, the permit-holder or the licensee shall have a preferential right for obtaining, a prospecting licence or mining lease. That preferential right is subject to Section 5 mentioned above. As per sub-sections (1) and (2) of Section 11, the right given to the applicants is a preferential right to be considered for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be over the applicants whose applications are received later. Thereby, the provision has been carved out for a preferential right in favour of the applicants, who seek for reconnaissance permit, prospecting licence or mining lease and they are entitled to get preferential right over and above the applications received later.
42. In view of the provisions contained in the MMDR Act, 1957, once the reconnaissance permit or prospecting licence or mining lease of an area is granted to an applicant, the operation thereof was not done in proper perspective for the benefits of the public at large and the revenue to be earned from the minerals. Therefore, amendments to the MMDR Act, - 18 - W.P.(C) No. 2608 of 2016 1957 were required to bring in necessary changes, keeping with the changing scenario in the mining sector as also with the requirement of complying with various judgments of the Hon‟ble Supreme Court.
43. The MMDR Act, 1957 and the Rules made thereunder forms a complete code in respect of minerals. As would be evident from Sections 3(e), 14 and 15 of the Act, the regulation and control of minor minerals have been vested with the State Government. So far as major minerals are concerned, Sections 5(1)(b), 5(2)(b), 7(2), 8(3), 10-A(2)(b), 10- A(2)(c), 17-A(2) and 17(A)(2-A) of the Act provide that in case of major minerals under the statutory scheme, the regulation and control has been exclusively vested with the Central Government.
44. The reforms in the mining sector through the amendment to the MMDR Act, 1957 were required to bring in necessary changes in keeping with the changing scenario in the mining sector as also with the requirement of complying with judgments of the Hon'ble Supreme Court. The amendment to the MMDR Act, 1957 was required to be carried out to expedite the mining operation across the country and for the Revenue generation for the State Governments in the interest of public at large. - 19 - W.P.(C) No. 2608 of 2016
45. The said Act has been amended several times over the years, notably in 1972, 1986, 1994 and 1999.
46. The reasons for Amendment Act, 2015 is crystal clear that the mining sector has been subjected to numerous litigations in the past few years. The judgments related to the mining sector have been pronounced by the Hon'ble Supreme Court, besides judgments on the issue of allocation of natural resources which have direct relevance to the grant of mineral concessions.
47. Therefore, the Statement of Objects and Reasons for the Amendment Act, 2015 needs to refer herein, which reads as follows:
"1.-2. ∗∗∗
3. The mining sector has been subjected to numerous litigations in the past few years. Important judgments related to the mining sector have been pronounced by the Supreme Court, besides judgments on the issue of allocation of natural resources which have direct relevance to the grant of mineral concessions.
4. The present legal framework of the MMDR Act, 1957, does not permit the auctioning of mineral concessions. Auctioning of mineral concessions would improve transparency in allocation. Government would also get an increased share of the value of mineral resources. Some provisions of the law relating to renewals of mineral concessions have also been found to be wanting in enabling quick decisions. Consequently, there has been a slowdown in the grant of new concessions and the renewal of existing ones. As a result, the mining sector - 20 - W.P.(C) No. 2608 of 2016 started registering a decline in production affecting the manufacturing sector which largely depends on the raw material provided by mining sector. The Government has therefore felt it necessary to address the immediate requirements of the mining sector and also to remedy the basic structural defects that underlie the current impasse.
5. In view of the urgent need to address these problems, the Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015 was promulgated on 12-1- 2015. The present bill is to replace this Ordinance. This bill is designed to put in place mechanism for: (i) eliminating discretion; (ii) improving transparency in the allocation of mineral resources; (iii) simplifying procedures; (iv) eliminating delay in administration, so as to enable expeditious and optimum development of the mineral resources of the country; (v) obtaining for the Government an enhanced share of the value of the mineral resources of the country; and (vi) attracting private investment and the latest technology.
6. The salient features of the MMDR Amendment Bill, 2015 are as follows : (i) Removal of discretion; auction to be sole method of allotment the amendment seeks to bring in utmost transparency by introducing auction mechanism for the grant of mineral concessions. The tenure of mineral leases has been increased from the existing 30 years to 50 years. There is no provision for renewal of leases. (ii) Impetus to the mining sector: the mining industry has been aggrieved due to the second and subsequent renewals remaining pending. In fact, this has led to closure of a large number of mines. The bill addresses this issue also. The bill provides that mining leases would be deemed to be extended from the date of their last renewal to 31-3- 2030 (in the case of captive mines) and till 31-3-2020 (for the merchant miners) or till the completion of the renewal already granted, if any, or a period of fifty years from the date of grant of such leave, whichever is later. (iii) Safeguarding interest of affected persons: there is - 21 - W.P.(C) No. 2608 of 2016 provision to establish District Mineral Foundation in the districts affected by mining related activities. (iv) Encouraging exploration and investment: The bill proposes to set up a National Mineral Exploration Trust created out of contributions from the mining leaseholders, in order to have a dedicated fund for encouraging exploration in the country. Transfer of mineral concessions granted through auction will be permitted in order to encourage private investors. (v) Simplification of procedures and removal of delay: the amendment removes the need for „previous approval‟ from the Central Government for grant of mineral concessions in case of important minerals like iron ore, bauxite, manganese, etc. thereby making the process quicker and simpler. Similarly, the State Governments will devise a system for filling of a mining plan obviating the need for prior approval of the mining plans by the Central Government. The Central Government will have revision powers in case State Governments fail to decide issues within the prescribed time. (vi) Stronger provisions for checking illegal mining: in order to address the serious problem of illegal mining, the penal provisions have been made further stringent by prescribing higher penalties up to 5 laid) rupees per hectare and imprisonment up to 5 years. State Governments will now be able to set up Special Courts for trial of offences under the Act."
48. As the method of auction provides for transparent mechanism in the allocation of mineral resources and a need was felt to revisit the provisions of the existing MMDR Act, 1957 for adoption of auction as a method of grant of mineral concessions. Accordingly, the MMDR Act was amended in 2015 (w.e.f. 12-1-2015) mandating that mineral concessions for major minerals shall be granted through auction by a - 22 - W.P.(C) No. 2608 of 2016 method of competitive bidding. However, an exception to this was created under Section 10-A.
49. Clause (b) of Section 10-A(2) provided that a reconnaissance permit (RP) holder or prospecting licence (PL) holder who was granted RP or PL before 2015 Amendment (12-1-2015), had a right to obtain a prospecting licence followed by a mining lease (ML), or a mining lease, as the case may be, if the State Government is satisfied that such reconnaissance permit or prospecting licence holder meets the conditions mentioned in sub-clauses (i) to (iv) of Section 10-A(2)(b). Further, the proviso to Section 10-A(2) provides another condition that previous approval of the Central Government for grant of prospecting licence and mining lease was mandatory in respect of any mineral specified in the First Schedule of the Act.
50. The MMDR Act, 1957 was comprehensively amended in 2015 to bring several reforms in the mineral sector, notably, mandating auction of mineral concessions to improve transparency, establishing District Mineral Foundation and National Mineral Exploration Trust and stringent penalty for illegal mining, The Act was further amended in the years 2016 and 2020 to allow transfer of leases for non-auctioned captive mines and to deal with the emergent issue of expiry of leases.
- 23 - W.P.(C) No. 2608 of 2016
51. Taking into consideration the object and reasons of the Amendment Act, 2015, the procedure for obtaining prospecting licence or mining lease in respect of land in which the minerals vest in the Government was indicated in Sections 10, 10-A and 10-B, which are quoted hereinbelow:
"10. Application for prospecting licences or mining leases.--(1) An application for [a reconnaissance permit, prospecting licence or mining lease in respect of any land in which the minerals vest in the Government shall be made to the State Government concerned in the prescribed form and shall be accompanied by the prescribed fee.
(2) Where an application is received under sub-section (1), there shall be sent to the applicant an acknowledgment of its receipt within the prescribed time and in the prescribed form.
(3) On receipt of an application under this section, the State Government may, having regard to the provisions of this Act and any rules made thereunder, grant or refuse to grant the permit, licence or lease].
10-A. Rights of existing concession holders and applicants.-- (1) All applications received prior to the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, shall become ineligible.
(2) Without prejudice to sub-section (1), the following shall remain eligible on and from the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015--
(a) applications received under Section 11-A of this Act;
(b) where before the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 a reconnaissance permit or prospecting licence has - 24 - W.P.(C) No. 2608 of 2016 been granted in respect of any land for any mineral, the permit-holder or the licensee shall have a right for obtaining a prospecting licence followed by a mining lease, or a mining lease, as the case may be, in respect of that mineral in that land, if the State Government is satisfied that the permit-holder or the licensee, as the case may be,--
(i) has undertaken reconnaissance operations or prospecting operations, as the case may be, to establish the existence of mineral contents in such land in accordance with such parameters as may be prescribed by the Central Government;
(ii) has not committed any breach of the terms and conditions of the reconnaissance permit or the prospecting licence;
(iii) has not become ineligible under the provisions of this Act; and
(iv) has not failed to apply for grant of prospecting licence or mining lease, as the case may be, within a period of three months after the expiry of reconnaissance permit or prospecting licence, as the case may be, or within such further period not exceeding six months as may be extended by the State Government.
(c) where the Central Government has communicated previous approval as required under sub-section (1) of Section 5 for grant of a mining lease, or if a letter of intent (by whatever name called) has been issued by the State Government to grant a mining lease, before the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, the mining lease shall be granted subject to fulfilment of the conditions of the previous approval or of the letter of intent within a period of two years from the date of commencement of the said Act:
Provided that in respect of any mineral specified in the First Schedule, no prospecting licence or mining lease shall - 25 - W.P.(C) No. 2608 of 2016 be granted under clause (b) of this sub-section except with the previous approval of the Central Government.
10-B. Grant of mining lease in respect of notified minerals through auction.-- (1) The provisions of this section shall not be applicable to cases covered by Section 10-A or Section 17-A or to minerals specified in Part A or Part B of the First Schedule or to land in respect of which the minerals do not vest in the Government.
(2) Where there is inadequate evidence to show the existence of mineral contents of any notified mineral in respect of any area, a State Government may, after obtaining the previous approval of the Central Government, grant a prospecting licence-cum-mining lease for the said notified mineral in such area in accordance with the procedure laid down in Section 11.
(3) In areas where the existence of mineral contents of any notified mineral is established in the manner prescribed by the Central Government, the State Government shall notify such areas for grant of mining leases for such notified mineral, the terms and conditions subject to which such mining leases shall be granted, and any other relevant conditions, in such manner as may be prescribed by the Central Government.
(4) For the purpose of granting a mining lease in respect of any notified mineral in such notified area, the State Government shall select, through auction by a method of competitive bidding, including e-auction, an applicant who fulfils the eligibility conditions as specified in this Act.
(5) The Central Government shall prescribe the terms and conditions, and procedure, subject to which the auction shall be conducted, including the bidding parameters for the selection, which may include a share in the production of the mineral, or any payment linked to the royalty payable, or any other relevant parameter, or any combination or modification of them.- 26 - W.P.(C) No. 2608 of 2016
(6) Without prejudice to the generality of sub-section (5), the Central Government shall, if it is of the opinion that it is necessary and expedient to do so, prescribe terms and conditions, procedure and bidding parameters in respect of categories of minerals, size and area of mineral deposits and a State or States, subject to which the auction shall be conducted :
Provided that the terms and conditions may include the reservation of any particular mine or mines for a particular end use and subject to such condition which allow only such eligible end users to participate in the auction.
(7) The State Government shall grant a mining lease to an applicant selected in accordance with the procedure laid down in this section in respect of such notified mineral in any notified area."
52. In view of the aforementioned provisions, it is apparent that Section 10 of the Act 1957 deals with application for prospecting licences or mining leases, which states about submission of applications in the prescribed form accompanied by the prescribed fee. On receipt of such application, the application of the applicant will be sent with an acknowledgement of its receipt within the prescribed time and in the prescribed form and on receipt of such application under this Section, the State Government may, having regard to the provisions of this Act and the Rules made thereunder, grant or refuse to grant the permit, licence or lease. By inserting Section 10-A(1), all applications received prior to the date of commencement of the Mines and Minerals - 27 - W.P.(C) No. 2608 of 2016 (Development and Regulation) Amendment Act, 2015 i.e. 12- 1-2015, shall become ineligible.
53. Section 10-A(2) carves out an exception to Section 10- A(1) holding that without prejudice to sub-section (1), the following i.e. Clauses (a) to (c) shall remain eligible on and from the date of commencement of the Amendment Act, 2015. Section 10-A(2)(a) prescribes the applications received under Section 11-A of this Act, which deals with granting reconnaissance permit, prospecting licence or mining lease in respect of an area containing coal or lignite, to which the present case is concerned.
54. Coming to Section 10-A(2)(b), before commencement of the Amendment Act, 2015, a reconnaissance permit or prospecting licence has been granted in respect of any land for any mineral, the permit-holder or the licensee shall have a right for obtaining a prospecting licence followed by a mining lease, or a mining lease, as the case may be, in respect of that mineral in that land, if the State Government is satisfied that the permit-holder or the licensee, as the case may be, satisfies the requirement as prescribed under sub-clauses (i) to (iv) of Section 10-A(2)(b).
55. Further, Section 10-A(2)(c) specifically prescribes that the mining lease shall be granted subject to fulfilment of the conditions of the previous approval or of the letter of intent within a period of two years from the date of commencement - 28 - W.P.(C) No. 2608 of 2016 of the said Act. In the proviso, it has been mentioned that no prospecting licence or mining lease shall be granted under clause (b) of this sub-section except with the previous approval of the Central Government. Therefore, the time-limit has been prescribed for two years from the date of commencement of the Amendment Act, 2015 and that too with prior approval of the Central Government.
56. On close scrutiny of the aforementioned provisions, it has to be held that under the new regime Section 10-A(1) made all pending applications in respect of major minerals ineligible. Thus, pending applications for prospecting licence (PL), mining lease (ML) or reconnaissance permit (RP) lapsed and the new auction regime set in.
57. However, Sections 10-A(2)(b) and 10-A(2)(c) of the Amendment Act, 2015 temporarily saved some pending applications from before the 2015 Amendment. These exceptions were applicable to the cases where an applicant for mining lease had prospected the area, or in respect of whom a recommendation was made by the State Government and grant of approval by the Central Government was pending.
58. It is further clarified that for the applications saved under Sections 10-A(2)(b) and 10-A(2)(c) of the Act, Central Government's approval was necessary before the grant of mining lease. For pending applications under Section 10- - 29 - W.P.(C) No. 2608 of 2016 A(2)(b) of the Act, proviso to Section 10-A(2)(c) of the Act mandated the prior approval of the Central Government before a mining lease was granted. Similarly, for pending applications under Section 10-A(2)(c) of the Act, the mining lease shall be granted within two years of fulfilment of the conditions mentioned in the letter of intent ("LOI" for short), only where prior Central Government's approval has been communicated. Therefore, in both the cases i.e. Sections 10- A(2)(b) and 10-A(2)(c), previous approval of the Central Government is necessary in view of the proviso to Section 10- A(2)(c).
59. Further, Section 10-A(2)(b) provides that a reconnaissance permit (RP) holder or prospecting licence (PL) holder who was granted reconnaissance permit (RP) holder or prospecting licence (PL) before 2015 Amendment i.e. 12-1- 2015, had a right to obtain a prospecting licence followed by a mining lease (ML), or a mining lease, as the case may be, if the State Government is satisfied that such reconnaissance permit (RP) holder or prospecting licence (PL) holder meets the conditions mentioned in sub-clauses (i) to (iv) of Section 10-A(2)(b).
60. The proviso to Section 10-A(2) provides another condition that previous approval of the Central Government for grant of reconnaissance permit (RP) holder and - 30 - W.P.(C) No. 2608 of 2016 prospecting licence (PL) was mandatory in respect of any mineral specified in the First Schedule of the Act.
61. It needs to refer herein that the Amendment Act, 2015 has undergone further amendment by the Amendment Act, 2021 with effect from 28-3-2021 by insertion of proviso to Sections 10-A(2) to 10-A(2)(b). The aforesaid amendment has been made with a view to further reforms in the mining sector to increase mineral production and creation of employment. To achieve this, more mineral blocks have to be brought into auction regime and any method of grant of mineral concession other than through a competitive, transparent and non-discriminatory method had to be brought to an end. Therefore, to resolve the impasse created by the exception provided in Section 10-A(2)(b) the MMDR Act, 1957 was further amended in the year 2021 to remove any exception to the grant of mineral concession through auction.
62. This Court in view of the aforesaid provisions, as referred hereinabove, is of the view that the MMDR Act, 1957, before amendment of the year 2015 the lapsing period was not there, i.e as has been inserted by amendment carved out in the year 2015 by insertion of Section 10-A(1) of the MMDR Act, 1957 as has been referred hereinabove.
63. It is evident from Section 10-A(2)(c) that the effect of Section 10-A(1) will not be there subject to fulfilment of the condition as provided under Section 10-A(2)(b) read with - 31 - W.P.(C) No. 2608 of 2016 Section 10-A(2)(c) whereby and whereunder it has been provided that if the Central Government has granted approval as required under sub-section (1) to Section 5 of the MMDR Act, 1957 or the letter of intent has been issued by the State Government and if the condition so incorporated in the letter of intent has been undertaken to be fulfilled within a period of two years either from the date of approval by the Central Government or from the date of issuance of letter of intent, then the mining lease can be issued.
64. In the aforesaid backdrop of factual aspects as well legal provisions as discussed above, the question which requires consideration herein is:
(i) As to whether the merely filing of an application for grant of prospecting license before insertion of amendment of Section 10-A (12.01.2015) made eligible to the writ petitioner for grant of Prospecting Licence?
(ii) As to whether the File Note Sheet dated 09.01.2015 and dated 12.01.2015, (Annexure-6 Series) by which the proposal for publication of Notification of proposed area was made, amount to sufficient compliance in order to invoke the implication of sub Section 2 Section 10-A of the amended Act 2015?
(iii) As to whether the proposal for publication of Notification of proposed area can create a vested right so that the provision of the Amended Act will not adversely affect the interest of the petitioner?
65. Since all the issues are interlinked and, as such, are being answered together. But before answering the said issues the legal position is needed to be referred herein that - 32 - W.P.(C) No. 2608 of 2016 the amended provision will adversely affect the right of the party concerned and, if yes, under which circumstances.
66. It needs to refer herein that the law is well-settled that the statutory provision is not to be implemented with retrospective effect unless provided under the statute for applying with retrospective effect. Reference in this regard is made to the judgment rendered by the Supreme Court in P. Mahendran and Ors. v. State of Karnataka and Ors, (1990) 1 SCC 411 wherein at para 5, it has been observed which reads as: (SCC p. 416, para 5) "5. It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The Amending Rules of 1987 do not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the rule with retrospective effect. Since the amending Rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force, the amended Rules - 33 - W.P.(C) No. 2608 of 2016 could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject-matter.".
67. In another judgment rendered by the Supreme Court in K.S. Paripoornan v. State of Kerala and Ors., (1994) 5 SCC 593 it has been held as hereunder:
"92. A substantive law is held to be prospective as a matter of legal policy since it is founded on public policy that no right be so created as to work to the disadvantage for whom it is created as it if be so, "it would be betrayal of what the law stands for...."
68. The Hon'ble Supreme Court in Kusumam Hotels (P) Ltd. v. Kerala State Electricity Board and Ors. (2008) 13 SCC 213 has held that all administrative orders ordinarily are to be considered prospective in nature. For giving it a retrospective effect, it must be stated so expressly or by necessary implication.
69. Further, law is also settled that by virtue of the amended rule the same will be said to be repealed and the saving clause will only come if any right has been accrued in favour of the party concerned said to be vested right so as to follow the principle that by virtue of the amendment carved out in a Statute the right already accrued in favour of the party concerned is not to be snatched away. Reference in this regard may be taken from Chairman Railway Board and - 34 - W.P.(C) No. 2608 of 2016 Ors. v. C.R. Rangadhamaiah and Ors., (1997) 6 SCC 623 wherein at para 24 it has been held as under:
24. In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expressions have been used in the context of a right flowing under the relevant Rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in [AIR 1967 SC 1889 : (1968) 1 SCR 185 : (1968) 1 LLJ 576] , B.S. Vedera [AIR 1969 SC 118 : (1968) 3 SCR 575
70. The Hon'ble Supreme Court in State of M.P. and Ors. v. Yogendra Shrivastava (2010) 12 SCC 538 has held that it is well-settled that rights and benefits which have already been earned or acquired under the existing rules cannot be taken away by amending the rules with retrospective effect. For ready reference the relevant para is being quoted as under:
"15. -- But it is well settled that rights and benefits which have already been earned or acquired under - 35 - W.P.(C) No. 2608 of 2016 the existing Rules cannot be taken away by amending the Rules with retrospective effect.
(See N.C. Singhal v. Armed Forces Medical Services [(1972) 4 SCC 765] ; K.C. Arora v. State of Haryana [(1984) 3 SCC 281 : 1984 SCC (L&S) 520] and T.R. Kapur v. State of Haryana [1986 Supp SCC 584 : (1987) 2 ATC 595] .) Therefore, it has to be held that while the amendment, even if it is to be considered as otherwise valid, cannot affect the rights and benefits which had accrued to the employees under the unamended rules. ---"
71. The amendment of year 2015 in MMDR Act, 1957 has come into force in order to generate more revenue so far as the mining resources are concerned. Such decision has been taken after the judgment having been rendered by the Hon‟ble Apex Court in the case of Goa Foundation v. Union of India and Others, [(2014) 6 SCC 590].
72. In Manohar Lal Sharma V. The Principal Secretary & Ors. (W.P.(Crl) No. 120/2012 disposed of on 25.08.2014), wherein the subject-matter of consideration was the allocation of coal blocks for the period from 1993 to 2010, the Hon Apex Court observed that allocation of natural resources has to meet the twin constitutional tests, one, the distribution of natural resources that vest in the State is to sub-serve the common good and, two, the allocation is not violative of Article 14. In paragraphs 71 and 99 of the judgment dated 25.08.2014, the Hon‟ble Apex Court has observed as follows:-
- 36 - W.P.(C) No. 2608 of 2016
"71. xxx xxx xxx Obviously, therefore, such allocations has to meet twin constitutional tests, one, the distribution of natural resources that vest in the State is to sub-serve the common good and, two, the allocation is not violative of. Article 14.
99. xxx xxx xxx We are fortified in our view by a recent decision of this Court (3 Judge Bench) in (Goa Foundation v. Union of India and Others,. [(2014) 6 SCC 5901) Goa Foundation wherein ,follolving Natural Resources Allocation Reference, it is stated, ".., it is for the State Government to decide as a matter of policy in what manner the leases of these mineral resources would be granted, but this decision has to be taken in accordance with the provisions of the MMDR Act and the Rules made thereunder and in consonance with the constitution provisions."
73. The parliamentarian, therefore, has taken decision to amend the statutory provision in the year 2015, i.e., with effect from 12.01.2015 by which the provision of 10A (1) has been inserted.
74. Section 10A (1) has put embargo by making reference of ineligibility criteria of one or the other party in getting the mining lease on or after the commencement of the said amendment. But exception has been carved out wherein subject to fulfillment of the conditions as provided under section 10A(2)(b) there will be no effect of embargo put as under section 10A (1) of the Act of 1957 (Amendment Act, 2015).
75. Section 10A(2)(b) is the condition of eligibility while section 10A(2)(c) is the criteria to be fulfilled by one or the - 37 - W.P.(C) No. 2608 of 2016 other for the purpose of getting the mining lease which is first approval of the Central Government is required as referred under sub-section 1 of section 5 of the MMDR Act, 1957 and second the letter of intent, if issued by the State Government, and the concerned party has given an undertaking to fulfil the conditions as stipulated in the letter of intent.
76. The aforesaid conditions therefore specify that subject to fulfillment of two conditions, i.e., the prior approval of the Central Government or the letter of intent if issued by the State Government or if the conditions stipulated in the letter of Intent is being undertaken to be complied with within a period of two years then the mining lease irrespective of the embargo as provided under section 10A(1) is to be issued.
77. It is evident that by issuance of the approval by the Central Government or the letter of intent the issue has been taken into consideration that if the right has been accrued in favour of one of the other by virtue of issuance of approval by the Central Government or the letter of intent, if issued by the State Government, then, there will be no adverse affect by the amendment incorporated in the statutory provision of the Act of 1957.
78. It is, thus, evident that the purport of the aforesaid relaxation which has been given is only with respect to the fact that in case a right has been accrued in favour of one or - 38 - W.P.(C) No. 2608 of 2016 the other, then, they will not adversely affect by the amended provision.
79. The accrual of right is to be considered as per the argument advanced on behalf of the petitioner who has made an advanced argument that since as per File Note Sheet dated 09.01.2015 and dated 12.01.2015 (Annexure-6 Series) the proposal for publication of Notification of proposed area was made and only the prospecting license was required to be issued to the petitioner by the respondent Department therefore the same be treated to be the accrual/vesting of right and, hence, the amendment incorporated in the statutory provision will not have any adverse impact upon the interest of the petitioner.
80. This Court, in order to appreciate the said issue, is of the view that the reference of the interpretation of the aforesaid accrued/vested right needs to be referred herein.
81. Rights are „vested‟ when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute „vested rights." Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or - 39 - W.P.(C) No. 2608 of 2016 vested right has been derived by a party, the policy decision/scheme could be changed.
82. "Vested right" has been defined by the Hon'ble Apex Court in the case of MGB Gramin Bank v. Chakrawarti Singh [(2014) 13 SCC 583] at paragraph 11, 12 and 13, which read hereunder as:--
"11. The word "vested" is defined in Black's Law Dictionary (6th Edn.) at p. 1563, as:
"Vested.--fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are „vested‟ when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute „vested rights‟."
12. In Webster's Comprehensive Dictionary (International Edition) at p. 1397, "vested" is defined as law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest.
13. Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision/scheme could be changed.
83. Further, so far as the question of taking away the vested right is concerned, the Hon'ble Apex Court has laid down the proposition in the case of Chairman, Railway Board v. C.R. Rangadhamaiah, (1997) 6 SCC 623 at paragraph-24, - 40 - W.P.(C) No. 2608 of 2016 which reads hereunder as follows:--
"24. In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon [AIR 1967 SC 1889], B.S. Vedera [AIR 1969 SC 118] and Raman Lal Keshav Lal Soni [(1983) 2 SCC 33]."
84. It is evident that the vested right as has been defined in the aforesaid judgment will be a right which has been accrued in favour of the parties concerned and once the right will be accrued there will not adverse impact on the amendment if incorporated in the statutory provision after the right as has been accrued.
85. Admittedly herein, the petitioner has harped upon to accept the said proposal for publication of Notification of proposed area which would be evident from Annexure-6 Series appended to the instant writ petition, as a right is said to be accrued in favour of the petitioner and thereby the - 41 - W.P.(C) No. 2608 of 2016 amendment incorporated in the statute be not adversely affect the interest of the party concerned.
86. But we are not in agreement to the said contention reason being that the mere proposal for publication of Notification of proposed area cannot be said to be an accrual of right rather the said proposal cannot be said to be the binding upon the other, rather the same is to be accepted and not to be accepted, as such, when the two options are there, i.e., to be accepted or not to be accepted then such decision cannot be said to bind the authority who has to take decision.
87. The letter of intent as per the stipulation made in Amendment Act 2015, if issued, then, it will be said to the accrual of right and once the letter of intent has been issued, then the substantial right is said to be created, however, subject to fulfillment of the conditions as per the requirement under section 10A(2)(c) within a period of two years, then the mining lease will be issued.
88. The contention of the petitioner is also not fit to be accepted to treat the proposal for publication of Notification of proposed area to be binding in view of the specific insertion under section 10A(2)(c) wherein in addition to the two conditions, i.e., the prior approval of the Central Government or the letter of intent to be issued by the State Government, - 42 - W.P.(C) No. 2608 of 2016 the condition stipulated in the letter of intent is to be fulfilled within a period of two years.
89. Apart from the above, it has to be observed that mere making of the application for grant of mineral concessions by the petitioner, does not create any right, much less a vested right, and the petitioner cannot claim that it had pre-existing right to such licence or lease. Its right is only to make an application, which was given by the policy then existing, and if the policy is changed, may be by way of an amendment to the Act, one cannot be stated to have any right on the basis of the earlier policy, which now does not hold good or find any place in the Statute.
90. Further, merely because the applications were kept pending for long period by the concerned authorities would not create any right or an applicant and cannot be stated to have a vested right for seeking mining lease on the basis of the provision which has been substituted by the Amendment Act.
91. Further, the Hon‟ble Apex Court in Geomin Minerals and Marketing Private Limited v. State of Orissa and Ors., (2013) 7 SCC 571 wherein an applicant had sought direction to the State Government to dispose of all pending applications for Mineral Concessions filed by the applicant in accordance with its vested right to preferential consideration, has observed at Para 41 as under:
- 43 - W.P.(C) No. 2608 of 2016
"It is well settled that no applicant has a statutory or fundamental right to obtain prospecting licence or a mining lease. In this connection one may refer to this Court's decision in Monnet Ispat [Monnet Ispat and Energy Ltd. v. Union of India, (2012) 11 SCC 1. Therefore, the High Court before interfering with the recommendation, ought to have looked into the nature of recommendation".
92. Further, it needs to refer herein that natural resources are public property and any change introduced by the Parliament by way of amendment for the benefit of public at large shall prevail over personal interest.
93. In Howrah Municipal Corporation and Ors. Vs. Ganges Rope Company Limited and Ors, (2004) 1 SCC 663, the Hon‟ble Apex Court has observed that the benefit of public at large shall prevail over the individual interest. It has further been held that while introducing transparent and fair procedure for distribution of State largesse, interest of few individuals is bound to be affected for taking care of the larger public interest. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under:
"37. The argument advanced on the basis of so-called creation of vested right for obtaining sanction on the basis of the Building Rules (unamended) as they were on the date of submission of the application and the order of the High Court fixing a period for decision of the same, is misconceived. The word "vest" is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word "vest" has also acquired a meaning as "an absolute or indefeasible right" [see K.J. Aiyer's Judicial - 44 - W.P.(C) No. 2608 of 2016 Dictionary (A Complete Law Lexicon), 13th Edn.) The context in which the respondent Company claims a vested right for sanction and which has been accepted by the Division Bench of the High Court, is not a right in relation to "ownership or possession of any property" for which the expression "vest" is generally used What we can understand from the claim of a "vested right" set up by the respondent Company is that on the basis of the Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the Court for its consideration, it had a "legitimate" or "settled expectation" to obtain the sanction. In our considered opinion, such "settled expectation", if any, did not create any vested right to obtain sanction. True it is, that the respondent Company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule- making power, amended the Building Rules and imposed restrictions on the heights of buildings on G. T. Road and other wards, such "settled expectation" has been rendered impossible of fulfilment due to change in law. The claim based on the alleged "vested right" or "settled expectation" cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such "vested right" or "settled expectation" is being sought to be enforced. The "vested right" of "settled expectation" has been nullified not only by the Corporation but also by the State by amending the Byuilding Rules. Besides this, such a "settled expectation" or the so called "vested right"
cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon".
94. On the basis of the aforesaid discussion made herein above it is considered view of this Court that the contention - 45 - W.P.(C) No. 2608 of 2016 of the learned counsel for the petitioner that a vested right has been created in favour of the petitioner by virtue of proposal for publication of Notification of proposed area as per Annexure-6 Series, is not tenable herein.
95. Further the learned counsel for the petitioner has contended that the principle of legitimate expectation will be applicable herein since the petitioner has changed/altered its position, therefore, Section 10 (A) (1) of the amended Act, 2015 will not be applicable herein and in order to fortify this limb of argument, the learned counsel for the writ petitioner has relied upon paragraph 28 of the Judgment rendered by the Hon‟ble Apex Court in the case of State of West Bengal and Another Vs Chiranjilal (Mineral) Industries of Bagandih and Another (supra).
96. In the aforesaid context this Court has gone through the Judgment rendered by the Hon‟ble Apex Court in the case of State of West Bengal and Another Vs Chiranjilal (Mineral) Industries of Bagandih and Another (supra) wherein at paragraph 28 the Hon‟ble Apex Court has observed that all applications received prior to 12.01.2015 shall become ineligible as per sub-section (1) to Section 10- A of the MMDR Act, 1957 and the exceptions or the saving clause applies to three kinds of situations specified in subsection (2) to Section 10-A of the MMDR Act, 1957. The first category is where an application has been received under - 46 - W.P.(C) No. 2608 of 2016 Section 11-A of the MMDR Act, 1957 and the second category is where a reconnaissance permit or a prospecting licence has been granted the permit holder or the licensee has the right to obtain a prospecting licence followed by a mining lease and the State Government is satisfied that the permit holder or the licensee has complied with the requirements specified in sub-clauses (i) to (iv) of clause (b) of sub-section (2) to Section 10-A of the MMDR Act, 1957.
97. The Hon‟ble Apex Court has further observed that the reason for protecting this class of case is on account of the fact that they had altered their position by spending money on reconnaissance operations or prospecting operations therefore, the principle of legitimate expectation is applied. For ready reference paragraph 28 of the said Judgment is being quoted as under:
28. Thus, the object and purpose of the Amendment Act, 2015 is to ensure that allocation of mineral resources is done through auctioning. This is the reason why sub-
section (1) to Section 10-A of the MMDR Act, 1957 mandates that all applications received prior to 12.01.2015 shall become ineligible. The exceptions or the saving clause applies to three kinds of situations specified in subsection (2) to Section 10-A of the MMDR Act, 1957.
The first category is where an application has been received under Section 11-A of the MMDR Act, 1957. The second category is where a reconnaissance permit or a prospecting licence has been granted the permit holder or the licensee has the right to obtain a prospecting licence followed by a mining lease and the State Government is satisfied that the permit holder or the licensee has - 47 - W.P.(C) No. 2608 of 2016 complied with the requirements specified in sub-clauses (i) to (iv) of clause (b) of sub-section (2) to Section 10-A of the MMDR Act, 1957. The reason for protecting this class of cases is on account of the fact that they had altered their position by spending money on reconnaissance operations or prospecting operations. Accordingly, the principle of legitimate expectation is applied. The third category is where the Central Government had already communicated their previous approval or the State Government had issue Letter of Intent for grant of mining lease before coming into force of the Amendment Act, 2015. The raison dêtre, it is observed therein, is that certain rights had accrued to these applicants inasmuch as all necessary procedures and formalities had been complied with and only formal lease remains to be executed.
98. In the aforesaid background, the argument, which has been advanced by the learned counsel for the petitioner by raising the issue of legitimate expectation as provided under the third/second category, as referred in paragraph 28 of the said judgment, the same will also have no aid to writ petitioner reason being that either of the conditions as provided under 10 A (2) is not available to the petitioner and therefore the principle of legitimate expectation cannot be allowed to be there contrary to the statutory mandate as stipulated in the Act.
99. While dealing with the right of an applicant under Section 10A (2)(b) of the Act, it has been provided that the permit holder or licensee shall have a right for obtaining a mining lease whereas in the case of Section 10A(2)(c), it has - 48 - W.P.(C) No. 2608 of 2016 been provided that the mining lease shall be granted subject to the fulfillment of the conditions of the previous approval.
100. Thus, it is evident that the right to obtain a mining lease is subject to compliance of the terms and conditions mentioned in Section 10A(2)(b) has also lapsed on coming into effect of the MMDR Amendment Act, 2021. Further, in view of the provisions as contained in Clause (c) of Section 10A(2) of the Act, it is mandated that mining lease cannot, without the previous approval of the Central Government, be granted, therefore, the proviso to Section 10A(2)(c) is very clear.
101. It further needs to refer herein that the Hon‟ble Apex Court in the case of Bhusan Power and Steel v. State of Odisha, (2017) 2 SCC 125 while taking into consideration the aforementioned provisions, has reiterated the object of Amendment Act 2015 and held that the said amendment has been incorporated for improving transparency in the allocation of mineral resources; and obtaining for the Government an enhanced share of the value of the mineral resources.
102. The judgment rendered in Bhusan Power & Steel Ltd. (supra), arose out of contempt petition wherein the Contemnor-State Government had disregarded the Court‟s direction to recommend the case for grant of a mining lease to the Central Government. Based on this direction and Section - 49 - W.P.(C) No. 2608 of 2016 10A (2)(c) of the Act, the petitioners therein claimed their rights to a mining lease. The Hon‟ble Apex Court, did not grant any relief for the reason that no prior approval had been granted by the Central Government to the State Government‟s recommendation.
Conclusion
103. It needs to refer herein that as per Amendment Act, 2015 wherein stipulation has been made in, sub-section (1) of Section 10A that all applications received prior to the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, shall become ineligible. The saving clause, i.e., Section 10A(2)(b), which has been inserted vide MMDR Amendment Act 2015, w.e.f. 12.01.2015 does not create vested right automatically and even the right to obtain a mining lease is subject to compliance of the terms and conditions mentioned in Section 10A(2)(b).
104. Further in the preceding paragraphs of this judgment, it has also been observed that either of the conditions as provided under 10 A (2) is not available to the present petitioner and therefore the principle of legitimate expectation cannot be allowed to be there contrary to the statutory mandate as stipulated in the Act.
105. Further it needs to refer herein that the Department of Mines & Geology, State of Jharkhand taking into consideration the aforesaid facts and mandate of Section - 50 - W.P.(C) No. 2608 of 2016 10(A)(1) of the MMDR Act have also passed orders declaring all such pending applications as ineligible vide letter dated 11.05.2015.
106. As such on the basis of the aforesaid discussion, the argument advanced by the learned Counsel appearing for the petitioner that pendency of the application for grant of mining lease a right has been accrued in favour of the petitioner for consideration, is not fit to be accepted.
107. All the issues are answered accordingly.
108. This Court, in view of the above, is of the view that the writ petition merits no consideration and the same stands dismissed.
I Agree (Sujit Narayan Prasad, J.)
(Navneet Kumar, J.) (Navneet Kumar, J.)
Alankar/
A.F.R
- 51 - W.P.(C) No. 2608 of 2016