Chattisgarh High Court
Manish Trading Company vs The Union Of India on 7 April, 2025
1
2025:CGHC:16262
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPC No.1144 of 2019
SATISH
TUMANE Reserved on 20.03.2025
Pronounced on 07.04.2025
M/s Manish Trading Company Through Partner Mr. Manish Raj Singhania,
S/o Mr. Raj Kamal Singhania, Aged 44 Years, R/o Singhania Office, Jeewan
Apartments, Shankar Nagar, District Raipur, Chhattisgarh.
Digitally
signed by ... Petitioner
SATISH versus
TUMANE
1 - Union Of India, Through Secretary, Ministry Of Mines, Shastri Bhawan,
Dr. Rajendra Prasad Road, New Delhi- 110001
2 - State Of Chhattisgarh, Through Secretary, Department of Mineral
Resources, Mahanadi Bhawan, Naya Raipur, C.G.
3 - Collector, District Balodabazar Bhatapara, Chhattisgarh.
... Respondent(s)
For Petitioner : Mr. Siddharth Shukla, Advocate.
For Respondent No.1 : Mr. Tushar Dhar Diwan, Advocate. For Respondents No. 2 : Ms. Pragya Pandey, Dy. Govt. Advocate. & 3/ State Single Bench: Hon'ble Shri Justice Sanjay S. Agrawal CAV Order
1. By virtue of this petition, the petitioner-M/s Manish Trading Company is questioning the legality and propriety of the order dated 25.09.2018 (Annexure P/10) passed by Respondent No.1-Union of India through Ministry of Mines In Revision Application File No.12(08)/2013-RC-II, whereby, the revision preferred by the petitioner against the order dated 05.04.2013 (Annexure P-8) passed by the Respondent No.2 refusing to revival of the 2 mining lease (Annexure P-2) held to be lapsed vide order dated 17.11.2011 (Annexure P-6), has been dismissed.
2. From perusal of the record, it appears that the mining lease was granted to the petitioner-M/s Manish Trading Company for extracting Lime Stone (Major Mineral) for a period of 20 years, commencing with effect from 20.05.2003 to 19.05.2023, in relation to 13.298 hectares situated at Village Mirgi, District Raipur (now District Balodabazar-Bhatapara) with regard to the land owned by as many as 26 land owners as described in the list attached to it. The said mining lease was granted consequent upon the order passed on 28.12.2002 (Annexure P-1) by the State Government, Department of Mineral Resources and was executed between the State Government and the petitioner-M/s Manish Trading Company, through its authorized officer under certain terms and conditions as stipulated therein.
3. The aforesaid mining lease has been held to be lapsed by the respondent authorities and refused to revive the same in exercise of the powers enumerated under sub-section (4) of Section 4-A of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as "the Act of 1957") and in view of the rules, i.e. Rule 28 and 28-A of the Mineral Concession Rules, 1960 (hereinafter referred to as "the Rules of 1960"). The provision prescribed under sub-section(4) of Section 4-A of the Act of 1957 provides as under :-
"4-A. Termination of prospecting licences, exploration licences or mining leases.]--
(1) to (3) ....xxx.....xxx ......
(4) Where the holder of a mining lease fails to undertake [production and dispatch] for a period of [two years] after the date of execution of the lease or having commenced [production and dispatch], has discontinued the same for a period of [two years], the lease shall lapse on the expiry of the period of [two years] from the 3 date of execution of the lease or, as the case may be, discontinuance of the [production and dispatch]:
Provided that the State Government may, on an application made by the holder of such lease before it lapses and on being satisfied that it will not be possible for the holder of the lease to undertake mining operations or to continue such operations for reasons beyond his control, make an order, within a period of three months from the date of receiving of such application, subject to such conditions as may be prescribed, to the effect that such lease shall not lapse:
Provided further that such lease shall lapse on failure to undertake mining operations or inability to continue the same before the end of a period of six months from the date of the order of the State Government:
Provided also that the State Government may, on an application made by the holder of a lease submitted within a period of six months from the date of its lapse and on being satisfied that such non-commencement or discontinuance was due to reasons beyond the control of the holder of the lease, revive the lease within a period of three months from the date of receiving the application from such prospective or retrospective date as it thinks fit but not earlier than the date of lapse of the lease:
Provided also that no lease shall be revived under the third proviso for more than twice during the entire period of the lease."
4. A bare perusal of sub-section(4) of the aforesaid provision would show that where the holder of the mining lease fails to undertake mining operations for a period of two years after the date of execution of the lease or having commenced mining operations, has discontinued the same for a period of two years, the lease shall lapse on the expiry of the period of two years from the date of execution of the lease or as the case may be, discontinuance of the mining operations and, the first proviso to it would show that the State Government may and on an application made by the holder of such lease before it lapses, on being satisfied that it will not be possible for the holder of the lease to undertake mining operations or to continue such operations for the reasons beyond his control, make an order, within a period of three months from the date of receiving of such application, subject to such conditions as may be prescribed with regard to the effect that such lease shall 4 not lapse and, second proviso to it would show that such lease shall lapse on failure to undertake mining operations by the lessee or on account of his inability to continue the same before ending the period of six months from the date of the order of the State Government. Further, according to the third proviso of the said provision, the State Government even upon its lapsing, if the application is made by the lessee within a period of six months from the date of its lapse while assigning the reasons of its non-commencement or discontinuance beyond his control, may upon its satisfaction, revive the lease within a period of three months from the date of receiving the said application from such prospective or retrospective date as it thinks fit, but not earlier than the date of lapse of the lease.
5. Rules relating to lapsing of lease provided under Rule 28, before its substitution in October, 2021 and its revival provided under Rule 28-A, before its omission, of the Rules of 1960 framed in exercise of the powers under Section 13 of the Act of 1957, are relevant for the purpose, which read as under :-
"28. Lapsing of leases - (1) Subject to the other conditions of this rule where mining operations are not commenced within a period of one year from the date of execution of the lease, or is discontinued for a continuous period of one year after commencement of such operations, the State Government shall, by an order, declare the mining lease as lapsed and communicate the declaration to the lessee.
(2) Where a lessee is unable to commence the mining operation within a period of one year from the date of execution of the mining lease, or discontinues mining operations for a period exceeding one year for reasons beyond his control, he may submit an application to the State Government, explaining the reasons for the same, at least three months before the expiry of such period. (3) Every application under sub-rule (2) shall be accompanied by a 5 fee of rupees 200.
(4) The State Government may on receipt of an application made under sub-rule (2) and on being satisfied about the adequacy and genuineness of the reasons for the non-commencement of mining operations or discontinuance thereof, pass an order before the date on which the lease would have otherwise lapsed, extending or refusing to extend the period of the lease:
Provided that where the State Government on receipt of an application under sub-rule (2) does not pass an order before the expiry of the date on which the lease would have otherwise lapsed, the lease shall be deemed to have been extended until the order is passed by the State Government or until a period of two years, whichever is earlier.
Explanation 1.-Where the non-commencement of the mining operations within a period of two years from the date of execution of mining lease is on account of-
(a) delay in acquisition of surface rights; or
(b) delay in getting the possession of the leased area; or
(c) delay in supply or installation of machinery; or
(d) delay in getting financial assistance from banks, or any financial institutions; or
(e) ensuring supply of the mineral in an industry of which the lessee is the owner or in which he holds not less than 50% of the controlling interest, and the lessee is able to furnish documentary evidence supported by a duly sworn affidavit, the State Government may consider if there are sufficient reasons for non-commencement of operations for a continuous period of more than one year.
Explanation 2.-Where the discontinuance of mining operations for a continuous period of two years after the commencement of such operations is on account of-
(a) orders passed by any statutory or judicial authority; or
(b) operations becoming highly uneconomical; or
(c) strike or lock out, and the lessee is able to furnish documentary evidence supported 6 by a duly sworn affidavit, the State Government may consider if there are sufficient reasons for discontinuance of operations for a continuous period of more than one year.
Explanation 3.-In case of mining lessee who has undertaken reconnaissance operations or in case of mining lessee whose capital investment in mine development is planned to be in excess of rupees 200 crores and where the mine development is likely to take more than two years, the State Government shall consider it to be sufficient reason for non-commencement of mining operations for a continuous period of more than two years. 28-A. (1) Where a lessee is unable to commence the mining operations within a period of two years from the date of execution of the mining lease, or discontinues mining operations for a period of exceeding two years for reasons beyond his control, he may submit an application to the State Government explaining the reasons for the same at least within six months from the date of its lapse:
Provided that the lease has not been revived under this provision for more than twice during the entire period of the lease.
(2) Every application under sub-rule (1) shall be accompanied by a fee of rupees 500.
(3) The State Government on receipt of an application made under sub-rule (1) and on being satisfied about the adequacy and genuineness of the reasons for non-commencement of mining operations or discontinuance thereof taking into consideration the matters specified in the Explanation to rule 28, pass an order reviving the lease."
6. By virtue of sub-rule(3) of Rule 28-A, the State Government may, on receipt of application made under sub-rule(1) and on being satisfied about the adequacy and genuineness of the reasons for the non-commencement of the mining operations or discontinuance thereof, pass an order of revival of the lease while taking into consideration the matters specified in the Explanation to Rule 28.
7
7. Clause 2 of Part-VIII of the alleged mining lease is to be seen at this juncture, which is relevant for the purpose, reads as under:-
"2. If in accordance with the provisions of clause 4 of the part, VIl of the Schedule the lessee/lessees shall offer to an occupier of the surface of any part of the said land compensation for any damage or injury which may arise from the proposed operations of the lessee/lessees and the said occupier shall refuse his consent to the exercise of the right and powers reserved to the State Government and demised to the lessee/lessees by these presents and the lessee/ lessees shall report the matter to the State Government and shall deposit with it the amount offered as compensation and if the Central/State Government are satisfied that the amount of compensation offered is fair and reasonable or if it is not so satisfied and the lessee/lessees shall have deposited with it such further amount as the State and Central Govt. shall consider fair and reasonable the State Govt. shall order the occupier to allow the lessee/lessees to enter the land to carry out such operations as may be necessary for the purpose of this lease. In assessing the amount of such compensation, the State Government shall be guided by the principles of the Land Acquisition Act."
8. In view of the aforesaid clause, a surface right for operation of the alleged mining lease was to be obtained by the petitioner by moving an application before the competent authority of the State Government, as the alleged land was owned by 26 land owners, i.e. other than the State Government and, for which, an application to this effect was to be made as per the provision prescribed under Section 247 of the Chhattisgarh Land Revenue Code, 1959 (hereinafter referred to as "the Code of 1959").
9. As observed herein-above, by virtue of sub-section(4) of Section 4-A of the Act of 1957 that, if the petitioner fails to commence the mining operations 8 for a period of two years from the date of execution of the alleged mining lease, then the same would be lapsed. It was, therefore, bounden duty of the petitioner to obtain either the consent from the land owners of the alleged land or to obtain the surface right of their lands for the said mining purpose as per the provision prescribed under sub-section (5) of Section 247 of the Code of 1959. The provision prescribed under Section 247 of the Code of 1959 is relevant for the purpose, which reads as under:-
"247. Government's title to minerals- (1) Unless it is otherwise expressly provided by the terms of a grant made by the Government, the right to all minerals, mines and quarters shall vest in the State Government which shall have all powers necessary for the proper enjoyment of such rights.
(2) The right to all mines and quarries includes the right of access to land for the purpose of mining and quarrying and the right to occupy such other land as may be necessary for purpose subsidiary thereto, including the erection of offices, workmen's dwellings and machinery, the stacking of minerals and deposit of refuse, the construction of roads, railways or tram-lines, and any other purposes which the State Government may declare to be subsidiary to mining and quarrying.
(3) If the Government has assigned to any person its right over any minerals, mines or quarries, and if for the proper enjoyment of such right, it is necessary that all or any of the powers specified in sub-sections(1) and (2) should be exercised, and the Collector may, by an order in writing, subject to such conditions and reservations as he may specify, delegate such powers to the person to whom the right has been assigned :
Provided that no such delegation shall be made until notice has been duly served on all persons having rights in the land affected, and their objections have been heard and considered.9
(4) If, in the exercise of the right herein referred to over any land, the rights of any person are infringed by the occupation or disturbance of the surface of such land, the Government or its assignee shall pay to such persons compensation for such infringement and the amount of such compensation shall be calculated by the Sub-Divisional Officer or, if his award is not accepted, by the Civil Court, as nearly as may be, in accordance with the provisions of the Land Acquisition Act, 1894 (I of 1894).
(5) No assignee of the Government shall enter on or occupy the surface of any land without the previous sanction of the Collector, and unless the compensation has been determined and tendered to the persons whose rights are infringed.
(6) If an assignee of the Government fails to pay compensation as provided in sub-section (4), the Collector may recover such compensation from him on behalf of the persons entitled to it, as if it were an arrear of land revenue.
(7) Any person who without lawful authority extracts or removes minerals from any mine or quarry, the right to which vests in, and has not been assigned by, the Government shall, without prejudice to any other action that may be taken against him be liable, on the order in writing of the Collector, to pay penalty not exceeding a sum calculated at double the market value of the minerals so extracted or removed :
Provided that if the sum so calculated is less than one thousand rupees, the penalty may be such larger sum not exceeding one thousand rupees as the Collector may impose.
(8) Without prejudice to the provisions in sub-section (7) the Collector may seize and confiscate any mineral extracted or removed from any mine or quarry the right to which vests in, and has not been assigned by the Government.
Explanation. - In this section, "minerals" include any sand or clay which the State Government may declare to have a commercial value or to be required for any public purpose." 10
10. A bare perusal of sub-section (5) of the aforesaid provision would show that no assignee of the Government shall enter on or occupy the surface of any land without the previous sanction of the Collector, and unless the compensation has been determined and tendered to the persons whose rights are infringed. It is to be seen, as reflected from a bare perusal of the record, that no consent was obtained by the petitioner from the land owners, whose land were given under the alleged mining lease executed on 23.05.2003 (Annexure P-2) within a period of two years, nor any application seeking to its surface right was made under sub-section (5) of Section 247 of the Code of 1959. Although, it was pleaded by the petitioner that he has acquired his interest with regard to the land bearing Khasra No.596/1 admeasuring 0.284 hectare from one Aghaniya Bai under the registered deed of sale dated 25.03.2008, but the said right was, however, found to be acquired only by one of the land owner, out of the 26 land owners, and that too much beyond the period of two years from the date of execution of the alleged mining lease (Annexure-P-2).
11. Perusal of the record would show further that the applications dated 08.06.2007 and 23.01.2008 (both forming part of Annexure P-3) were made by the petitioner before the Collector, Raipur (Mining Branch) for obtaining permission of surface right with regard to the land bearing Khasra No.596/1 admeasuring 0.284 hectare and Khasra No.596/2 admeasuring 0.384 hectare, however, no application as such was made with regard to the land owned by other land owners, whose names are depicted in the said list attached to the mining lease. That apart, these applications were found to be made beyond the period of two years and, in sofar as the application, dated 04.04.2011 (Annexure P-5) made by the petitioner under Rule 72 of the Rules 11 of 1960 before the Sub-Divisional Officer (Revenue) seeking fixation of the amount of compensation of the land owned by said land owners is concerned, the same also appears to have been filed beyond the period of two years.
12. As observed hereinabove, neither the consent was obtained by the petitioner from the said land owners in time for its mining operations, nor any application was made for obtaining the use of surface right of their lands under sub-section(5) of Section 247 of the Code of 1959 within the period of two years from the date of execution of the alleged mining lease (Annexure P-2), therefore, it cannot be said that to undertake the mining operations of the alleged mining lease, was beyond his control within the said statutory period of two years as required under sub-section(4) of Section 4-A of the Act of 1957.
13. In view of the aforesaid background, it cannot be said that the concerned respondent authorities have committed any illegality in holding the alleged lease lapsed under Rule 28 or have refused to revive the same under Rule 28-A, nor the order impugned passed by the Revisional Authority could be held to be faulty, as the petitioner has completely failed to produce any document on record showing that he was unable to commence the mining operations beyond his control within the statutory period of two years from the date of execution of the alleged mining lease.
14. The petition being devoid of merit is, accordingly, dismissed.
No order as to costs.
SD/-
(Sanjay S. Agrawal) Judge Tumane