Jharkhand High Court
Binod Ranjan Sharma & Others vs The State Of Jharkhand & Others on 19 July, 2021
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 6489 of 2018
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Binod Ranjan Sharma & Others ... ... Petitioners Versus The State of Jharkhand & Others ... ... Respondents With W.P.(C) No. 6525 of 2018 Khirod Mudi ... ... Petitioner Versus The State of Jharkhand & Others ... ... Respondents With W.P.(C) No. 4561 of 2019 D.M.Minerals Pvt. Ltd. ... ... Petitioner Versus The State of Jharkhand & Others ... ... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioners : Mr. Anil Kumar Sinha, Sr. Advocate For the Respondent State : Mrs. Darshana Poddar Mishra, A.A.G.-I
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Oral Order 09/Dated 19.07.2021 With consent of the parties, hearing of the matter was done through video conferencing and there was no complaint whatsoever regarding audio and visual quality.
2. These writ petitions are under Article 226 of the Constitution of India wherein prayer inter alia has been made for declaring Rule 9(10) of the Jharkhand Mineral Concession Rules, 2004 as amended by the Jharkhand Minor Mineral Concession (Amendment) Rules, 2017 (hereinafter referred to as Rule, 2017) as unconstitutional and ultra vires to the Constitution of India as well as Mines and Minerals -2- (Development & Regulation) Act, 1957 (hereinafter referred to as the Act, 1957) apart from the direction to be issued upon the respondent State of Jharkhand to execute supplementary mining lease of the petitioner for the extended period of 50 years in terms of the provision of Section 8A(3) read with Section 8A(6) of the Act, 1957.
3. Mr. Anil Kumar Sinha, learned senior counsel appearing for the petitioners, has submitted that the provision of Rule 9(10) of the Rules, 2017 is ultra vires to the Constitution of India as also the Act, 1957 since, according to him, in view of the provision of Section 8A of the Act, 1957 which contains a provision under Sub-section 6 to the effect that notwithstanding anything contained in sub-sections (2), (3) and sub-section (4), the period of lease granted before the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 (10 of 2015), where mineral is used for other than captive purpose, shall be extended and be deemed to have been extended up to a period ending on the 31st March, 2020 with effect from the date of expiry of the period of renewal last made or till the completion of renewal period, if any, or a period of fifty years from the date of grant of such lease, whichever is later, subject to the condition that all the terms and conditions of the lease have been complied with and in pursuance to the aforesaid provision, the mining lease granted in favour of the petitioners will be deemed to have been -3- extended for a further period of 50 years from the date of entering into the lease deed which was entered on 21.12.1983 (in W.P.(C) No.6489 of 2018), on 31.01.2001 (in W.P.(C) No. 6525 of 2018) and on 09.01.1979 (in W.P.(C) No. 4561 of 2019).
He further submits that by promulgating a rule as under
Rule 9(10) of the Rule, 2017, the State of Jharkhand has restricted the period of extension of the said lease only up to the period of 31st march, 2020 which, according to him, is in the teeth of the statutory provision as contained under Section 8A of the Act, 1957 and therefore, the aforesaid is ultra vires to the parent Act.
He submits that the provision of Rule 9(10) of the Rule, 2017 which has come into effect on 22.02.2017 so far as it relates to the mining lease of articles which is the subject matter of the present writ petition, i.e., pyroxenite, china clay and quartz & quartizite minerals are repugnant to the Act formulated by the Parliament by way of inserting Section 8A by Act, 10 of 2015 with effect from 12.01.2015.
He further submits that the provision as contained under Rule 9(10) of the Rule, 2017 formulated by the State of Jharkhand is in the teeth of the constitutional mandate as enshrined under Article 254 (1) (2) of the Constitution of India.
4. While on the other hand, Mrs. Darshana Poddar Mishra, learned Additional Advocate General-I appearing for the State of Jharkhand, refuting the argument advanced on behalf of -4- learned senior counsel for the petitioner, submits by making reference of the provision of Section 14 of the Act, 1957 which contains a provision to the effect that the provisions of Section 5 to 13 (inclusive) shall not apply to quarry lease, mining lease or other mineral concession in respect of minor mineral. According to her, it is the Central Government who, by virtue of notification dated 10.02.2015, has brought the 'Pyroxenite', 'China Clay' and 'quartz & quartizite' minerals from the category of major mineral to that of the minor mineral and as such, once the aforesaid minerals have become the minor minerals, the provision of Section 14 will ipso facto apply which provides for non-applicability of the provisions of Sections 5 to 13 in respect of minor minerals and, therefore, there is no question of applicability of provision of Section 8A of the Act, 1957.
5. This Court, after having heard the learned counsel for the parties, deems it fit and proper to formulate the following questions to be answered by the State respondents which read as hereunder :-
(i) Whether the provision of Rule 9(10) of the Jharkhand Mineral Concession Rules, 2004 as amended by the Jharkhand Minor Mineral Concession (Amendment) Rules, 2017 is ultra vires to the parent Act which contains provision of Section 8A of the Mines and Minerals (Development & Regulation) Act, 1957? -5-
(ii) Whether Section 14 of the Mines and Minerals (Development & Regulation) Act, 1957 which has come into being on 10.02.1987 will affect the statutory provision as inserted by way of Section 8A under the Act, 1957 since on the date when Section 14 has been inserted to be part of the Act, 1957, there were no existence of the provision of Section 8A of the Mines and Minerals (Development & Regulation) Act, 1957 which came into being with effect from 12.01.2015 by virtue of insertion of Act, 10 of 2015?
(iii) Whether the provision of Rule 9(10) of the Rule, 2017 formulated by the State of Jharkhand can be given its retrospective application with respect to the lease in question and its applicability in view of the deemed extension of the period of lease by creating a vested right under the statutory provision in favour of the writ petitioners?
6. Let these matters be posted on 06.08.2021.
7. The State respondent, if so wishes, may file affidavit to that effect.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Birendra/