Rajasthan High Court - Jaipur
M/S Kamlesh Metacast Pvt. Ltd vs State Of Rajasthan on 25 June, 2021
(1 of 17) [CW-13426/2020]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No.13426/2020
M/s Kamlesh Metacast Pvt. Ltd., Having Its Registered Office at
A-28, Basement Anita Colony, Bajaj Nagar, Jaipur-302015
Through Its Authorized Signatory Shri Inder Kumar, Son Of Shri
Parbhu Dayal Resident Of Village Kali Pahadi, Tehsil Nimrana,
District Alwar
----Petitioner
Versus
1. State Of Rajasthan, Through Additional Chief Secretary
Department Of Mines & Petroleum, Government Of
Rajasthan, Secretariat, Jaipur (Rajasthan) - 302001
2. The Joint Secretary, Department Of Mines And Petroleum,
Government Of Rajasthan, Secretariat Jaipur - 302001
3. The Director, Department Of Mines And Geology, Khanij
Bhawan, Shastri Circle, Udaipur - 313001
----Respondents
For Petitioner(s) : Mr. Kamlakar Sharma, Sr. Advocate
with Ms. Alankrita Sharma
For Respondent(s) : Mr. Jaivardhan Singh Shekhawat for
Mr. R.P. Singh, AAG
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment
RESERVED ON 21.05.2021
PRONOUNCED ON 25th June, 2021
REPORTABLE
1. Brief facts as set out by the petitioner-company which
are relevant for the purpose of adjudication of the issue
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involved in the present writ petition are being referred as
under:-
(i) The petitioner-company had applied for Prospecting
License (hereinafter referred to as "P.L.") for mining activity.
The area for mining lease was approved and demarcated on
24.12.2014. The order for granting P.L. was issued for a
period of three years and sanction was granted.
(ii) On 12.01.2015, the Mines and Mineral (Development
& Regulation) Amendment Act, 2015 (hereinafter referred to
as "the MMDR Act, 2015") came into force whereby it was
provided that all the pending applications would stand
rejected except those which have been saved under Clause
(a) to (c) of sub-section (2) of Section 10A, of the MMDR Act
as it existed.
(iii) A decision was taken by the State Government on
17.10.2015 to cancel all the permissions granted and LoIs
issued by the Mining Department for the period from
01.11.2014 to 12.01.2015 on the ground that the same were
issued contrary to the guidelines laid down by the Central
Government and the State Government. In pursuance
thereof, a show cause notice was issued under Section 4A(3)
to the petitioner-company on 03.03.2016 proposing to
terminate the P.L. issued to it. The petitioner-company
submitted its reply to the show cause notice. After receiving
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the reply, the State Government passed an order on
30.11.2016 cancelling all the LoIs and licenses.
(iv) The petitioner-company challenged the cancellation
of its P.L. in Revision Petition before the Mines Tribunal, GoI
(hereinafter referred to as "the Tribunal") assailing the orders
dated 17.10.2015 and 30.11.2016 (supra).
(v) A Revision Petition was decided on 19.09.2018
whereby the orders were quashed and the matter was
remanded back to the State Government to take up
appropriate action as per law. The Tribunal relied on the
judgment of M/s. Wonder Cement Limited and the
cancellation of P.L. was also quashed.
(vi) The State Government did not take any action and
petitioner-company filed SB Civil Writ Petition No.8906/2019
which was disposed of by this court vide its order dated
17.05.2019 with the following directions:-
"upon hearing the counsel for the petitioner
and considering the nature of grievance raised and prayer addressed; the State respondents are directed to determine the claim of the petitioner as expeditiously as possible preferably within a period of two months from the date a certified copy of this order is presented."
(vii) The compliance was not made and a contempt petition was filed wherein this Court passed an order on 13.10.2020 to take a decision within a period of 3 days on 15.10.2020. (Downloaded on 28/06/2021 at 08:42:49 PM)
(4 of 17) [CW-13426/2020] The decision was taken by the respondent-Mining Department upholding its earlier order dated 30.11.2016 maintaining that the P.L. was granted to the petitioner-company in contravention of the guidelines dated 30.10.2014 issued by the Central Government.
2. It is after this stage that the matter has come up before this Court.
3. Learned Senior Counsel appearing for the petitioner- company has strongly objected to the order passed by the Department dated 15.10.2020 and submitted that the order is absolutely illegal, malafide and arbitrary. It is objected that once the orders dated 17.10.2015 and 30.11.2016 had been quashed and set aside by the Tribunal, the State Government had no authority to revive the order dated 30.11.2016 by the impugned order dated 15.10.2020. It is urged that the arguments, which have been made the basis for reviving the order dated 30.11.2016 were already examined at length by the Tribunal and it was found that the P.L. issued to the petitioner-company cannot be said to be in violation of the Mines and Minerals (Development and Regulation) Act, 2015 (hereinafter referred to as "MMDR Act 2015"). As the MMDR Act 2015 came into force w.e.f 12.01.2015 while the P.L. had been issued to the concerned petitioner-company on 24.12.2014.
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(5 of 17) [CW-13426/2020] 3.1 Learned Senior Counsel submits that the case of the petitioner was similar to that of M/s. Wonder Cement Limited whose P.L. had also been cancelled on account of the same having been issued during the period between 01.11.2014 and 12.01.2015. The M/s. Wonder Cement Limited had also approached Tribunal and Tribunal quashed the said order whereafter the Department has granted lease to the M/s. Wonder Cement Limited. Learned Counsel has relied on a letter written by Director, Department of Mines and Geology to the respondents on 04.04.2019 seeking compliance. The case of the petitioner-company also relies on the internal communication wherein recommendation has been made to restore the P.L. of the petitioner-company dated 19.09.2019. 3.2 Learned counsel submits that the order has been passed in-haste and with the only purpose to circumvent the order passed by this court in contempt petition. It is further submitted that in the written submissions filed by the petitioner-company that it had applied for P.L. in the year 2011 and after the complete process was conducted of earmarking the land, demarcating and approving the area that the P.L. was issued. The process was thus completed wayback before the amendment was brought into force on 12.01.2015. It is further submitted that before the termination of P.L., the petitioner had already completed 75% of the prospective operations.
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(6 of 17) [CW-13426/2020] 3.3 It is submitted that there has been no application of mind while passing the order dated 15.10.2020 and the self- same grounds on which the earlier order dated 30.11.2016 was passed, have been reiterated. The provisions which were prevailing prior to amendment allowed the P.L. to be granted to the petitioner-company and there was no violation as per the then existing provisions. The guidelines issued by the Central Government on 30.10.2014 were infact brought into force by the amendment, which was made effective from 12.01.2015. It is submitted that the guidelines were contrary to the then existing procedure laid down under Mines and Minerals (Development and Regulation) Act, 1957 and therefore there is no case for violation of Rules or Regulations while issuing P.L. to the petitioner-company. The respondents were only required to revive the P.L. by issuing an order and were required to handover the position of the area. The Tribunal nowhere asked the respondents to again take a decision regarding cancellation of the P.L. of the petitioner- company.
3.4 It is submitted that the order passed by the Tribunal was not complied with and the respondents are in contempt as the order impugned dated 15.10.2020 goes against the spirit of the order passed by the Tribunal. Learned counsel has also pointed out that in the case of M/s. Wonder Cement Limited, the mining lease was granted consequent upon the (Downloaded on 28/06/2021 at 08:42:49 PM) (7 of 17) [CW-13426/2020] order from the Tribunal and the order of this court. Different stand cannot be taken in relation to the petitioner-company. It is further submitted that the order of cancellation which had also been quashed cannot be revived by an executive fiat and the entire intervening period should be treated as a dies non.
3.5 It is further prayed that the petitioner-company be allowed mining lease for the three years period with additional four months for compliance as provided under MMDR Act as the said period pending before revision, writ petition and contempt ought not be counted and affect the right of the petitioner-company.
4. Respondents have filed a reply to the writ petition. 4.1 Learned counsel for the respondents have argued that the area measuring 1859.0275 hectares near Village Rohida Tehsil Pindwara District Sirohi was initially marked and P.L. No.7/2011 was issued vide order dated 24.12.2014. Sanction was granted for a period of three years and agreement was executed on 12.03.2015. A high level committee was constituted on 05.10.2015 to review grant of LoI for the period from 01.11.2014 to 12.01.2015. The Principal Secretary, Mines wrote a letter on 17.10.2015 informing about the decision of the State Government to cancel all the LoIs issued during the said period on the basis of the preliminary report of the committee and letter was also sent (Downloaded on 28/06/2021 at 08:42:49 PM) (8 of 17) [CW-13426/2020] to the Central Government seeking prior approval of pre- mature termination as per Section 4A(1) of the MMDR Act, 1957 whereafter Central Government asked the State to provide opportunity of hearing to the petitioner-company. Notice was therefore sent and the petitioner-company's reply was found to be dis-satisfactory and thereafter Central Government was asked to give approval whereupon the Central Government replied stating that State Government was competent to take decision after providing opportunity of hearing. Thereupon vide order dated 30.11.2016, P.L. of the petitioner-company was cancelled and declared null and void in terms of Section 19 of the MMDR Act, 1957. Possession of the area was taken over by the Mining Engineer, Sirohi on 15.12.2016.
4.2 In revision, the Tribunal set aside the order on 19.09.2018 with directions to take appropriate action as per law. It is stated that guidelines had been issued by the Central Government on 30.10.2014 and the P.L. was issued in violation of Clause 5.2.4 and 5.2.5 of the said guidelines. As the said order was issued on 24.12.2014, after the guidelines had been issued on 30.10.2014, the sanction order was banned. It is further submitted that the amended draft of MMDR Act was uploaded on 17.11.2014 which was brought into force from 12.01.2015 wherein it was provided that all concessions shall be granted through auction only. In this (Downloaded on 28/06/2021 at 08:42:49 PM) (9 of 17) [CW-13426/2020] circumstance, the State Government has rightly taken a decision not to approve the P.L. which was granted earlier and the termination of the P.L. on 30.11.2016 was found to be in order and was therefore restored.
4.3 It is further submitted that the case of the M/s. Wonder Cement Limited was different from that of the petitioner- company and the chart has been placed to point out the difference between M/s. Wonder Cement Limited and that of the petitioner. It is further submitted that departmental notings and internal communication cannot be construed as final decision.
5. Having noticed the aforesaid arguments and submissions of either side, this court finds that petitioner-company's revision petition challenging the order of cancellation of P.L. dated 30.11.2016 was allowed on 19.09.2018 and the order was quashed and set aside. The said order which was quashed by the Tribunal had been restored by the impugned order dated 15.10.2020. The reason for restoration of the order, which had been quashed, as given out by the Department, is that the P.L. was issued in violation of the guidelines issued by the Central Government.
6. A look at the order dated 19.09.2018 passed by the Tribunal shows that the said argument was considered and examined and it was found that the Act which provides for issuing of license only by way of auction, came into force (Downloaded on 28/06/2021 at 08:42:49 PM) (10 of 17) [CW-13426/2020] from 12.01.2015, on the day when the petitioner applied the provisions of MMDR Act and Rules the allowed mode and issuance of license was by way of moving an application. This court, therefore, finds that the application which the petitioner-company had moved in 2011 was in confirmation with the then existing laws. As the entire process was completed and final license was sanctioned on 24.12.2014 therefore, the Tribunal has rightly quashed the order dated 30.11.2016. This court also further finds that the order of Tribunal was not challenged by the State Government in any proceedings either before this court or elsewhere. The State Government authorities, therefore, had no authority or jurisdiction to restore an order which stood already quashed and set aside by the Tribunal which is empowered to hear revision under Rule 36 of the MMDR Rules.
7. The contentions of the respondents of the sanction order dated 24.12.2014 being in violation of Clause 5.2.5 and 5.2.4 is required to be examined. This court finds that the guidelines issued by the Central Government on 30.10.2014 provided as under:-
"5.2.4. State Government should invite application for grant of mineral concessions by notification in the official Gazette and State Government's website for wide publicity. Notification, interalia, should indicate the date from which applications can be submitted, which should be a date 30 days or more from the date of notification. The due date for (Downloaded on 28/06/2021 at 08:42:49 PM) (11 of 17) [CW-13426/2020] submitting applications should be indicated and should be reasonable to ensure that the period for accepting application is not kept indefinite.
5.2.5. Depending on the availability of exploration data and minerlization, an area should be notified for inviting applications for grant of PL or RP. An area should be notified for inviting application for grant of ML, only if mineralization in terms of UNFC 1997 (refer to para 2.2.2) by way of prospecting or otherwise has been established. The extent of mineralization should be mentioned in the notification."
8. The said guidelines became part of the amendment made by the Central Government in the MMDR Act, 1957 w.e.f. 12.01.2015 and it was provided under the Mining Amendment Act that the composite license of mining as well as mining leases allotment shall be done exclusively by way of auction.
9. A perusal of the aforesaid provisions of the guidelines show that the said provisions are prospective in nature. Thus, after 30.10.2014 the applications could have been accepted by the State Government only by notifying in official gazette. However, the said guidelines do not in any manner restrict the pending applications, which were already considered and examined and land was already earmarked.
10. In the present case, this court finds that approval has already been given much earlier of issuing guidelines dated 30.10.2014 and it is a formal order which has been passed in (Downloaded on 28/06/2021 at 08:42:49 PM) (12 of 17) [CW-13426/2020] December, 2014. The Tribunal has also examined the said aspect and therefore, there was no occasion for the respondents to again reiterate the same submission and restore the cancellation order dated 30.11.2016. In fact, in terms of the order passed by the Tribunal in Revision Petition, as noticed by this court earlier in the writ petition decided on 17.05.2019, the only needful action to be taken by the State Government was to issue order for handing over the possession of the earmarked and demarcated site relating to the prospective license.
11. In the opinion of this court, once an order is quashed natural corollary is that earlier order stands restored. That is to say that once an order has been quashed by the Tribunal, the possession which stood prior to the passing of the impugned order which has been quashed shall stand revived.
12. In the case of M/s. Shree Chamundi Mopeds Ltd. Versus Church of South India Trust Association, Madras: AIR 1992 SC 1439, the Supreme Court explained the distinction between the staying of an order and quashing of an order in violation terms:-
"10. In the instant case, the proceedings before the Board under Sections 15 and 16 of the Act had been terminated by order of the Board dated April 26, 1990 whereby the Board, upon consideration of the facts and material before it, found that the appellant-company (Downloaded on 28/06/2021 at 08:42:49 PM) (13 of 17) [CW-13426/2020] had become economically and commercially non-viable due to its huge accumulated losses and liabilities and should be wound up. The appeal filed by the appellant-company under Section 25 of the Act against said order of the Board was dismissed by the Appellate Authority by order dated January 7, 1991. As a result of these orders, no proceedings under the Act was pending either before the Board or before the Appellate Authority on February 21, 1991 when the Delhi High Court passed the interim order staying the operation of the Appellate Authority dated January 7, 1991. The said stay order of the High Court cannot have the effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 1991.
While considering the effect of an interim order staying the operation of the order under-
challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence.
This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the (Downloaded on 28/06/2021 at 08:42:49 PM) (14 of 17) [CW-13426/2020] appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the interim order dated February 21,1991 by the Delhi High Court staying the operation of the order of the Appellate Authority dated January 7,1991 does not have the effect of reviving the appeal which had been dismissed by the Appellate authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said appeal stood revived and was pending before the Appellate Authority. In that view of the matter, it cannot be said that any proceedings under the Act were pending before the Board or the Appellate Authority on the date of the passing of the order dated August 14, 1991 by the learned Single Judge of the Karnataka High Court for winding up of the company or on November 6, 1991 when the Division Bench passed the order dismissing O.S.A.No. 16 of 1991 filed by the appellant company against the order of the learned Single Judge dated (Downloaded on 28/06/2021 at 08:42:49 PM) (15 of 17) [CW-13426/2020] August 14, 1991. Section 22(1) of the Act could not, therefore, be invoked and there was no impediment in the High Court dealing with the winding up petition filed by the respondents.
This is the only question that has been canvassed in Civil Appeal No. 126 of 1992, directed against the order for winding up of the appellant company. The said appeal, therefore, fails and is liable to be dismissed."
Thus, there is a clear distinction between quashing and staying of an order.
13. In the present case, the Tribunal has quashed the order, meaning thereby the P.L. dated 24.12.2014 stood restored. The respondents were required to handover the possession which they have taken over of the mining area. However, the respondent-State has adopted an approach as if the matter had been remanded back for passing a fresh decision whether P.L. was to be cancelled or not. While quashing the order dated 30.11.2016, the Tribunal also quashed the order dated 17.10.2015 which was made the basis for issuing of show cause notice. Thus, it cannot be said that possession was restored to the situation where show cause notice was still in vogue. The order dated 15.10.2020, thus, is found to be without jurisdiction and without authority in law. The P.L. sanctioned order dated 24.12.2014 which was declared null (Downloaded on 28/06/2021 at 08:42:49 PM) (16 of 17) [CW-13426/2020] and void stood restored after passing of the order by the Tribunal dated 19.09.2018.
14. Accordingly, the respondents were required to handover the possession of the mining area and the petitioner-company was entitled to act according to the P.L. issued to them for the period of three years. The order dated 15.10.2020 is, therefore, liable to be set aside.
15. This Court further accepts the contention of the petitioner-company that the period from 30.11.2016 till the date of handing over possession in terms of the present order, shall be treated as dies non and shall be excluded from the period of three years license granted under the P.L. dated 24.12.2014. The amendments made subsequently in the MMDR Act, 1957 during pendency of this writ petition would not apply to the license granted on 24.12.2014 and the four months additional time required for completing the formalities shall be granted additionally.
16. Accordingly, in view of above findings and conclusions, the order dated 15.10.2020 is quashed and set aside. The respondents are now directed to handover the possession of the area as earmarked earlier for the mining purposes in terms of license granted to the petitioner-company dated 24.12.2014.
17. The writ petition is accordingly allowed. No costs. (Downloaded on 28/06/2021 at 08:42:49 PM)
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18. All pending applications shall also stand disposed of.
(SANJEEV PRAKASH SHARMA),J Karan Bhutani / (Downloaded on 28/06/2021 at 08:42:49 PM) Powered by TCPDF (www.tcpdf.org)