Madhya Pradesh High Court
M/S Aman Stone Crasher Thr. vs The State Of Madhya Pradesh on 8 July, 2020
Author: Sheel Nagu
Bench: Sheel Nagu
HIGH COURT OF MADHYA PRADESH
1 W.P.No. 6767/2020
(M/s. Aman Stone Crusher Vs. State of M.P. & Ors.)
GWALIOR BENCH:
DATED:08/07/2020
Shri Arvind Dudawat, learned counsel for the
petitioner.
Shri Ankur Modi, learned Additional Advocate
General for the respondents/State.
Matter is heard through Video Conferencing. Instant petition has been preferred by the petitioner seeking direction by way of appropriate writ to respondents No. 2 and 3 to execute quarry lease pursuant to request of petitioner for renewal of quarry lease agreement dated 17/3/2016, forthwith.
2. Precisely stated facts of the case in the writ petition are that petitioner was holding a quarry lease for Stone for making Gitti by mechanical crushing (i.e. use of crusher), which was earlier granted to petitioner and same came to an end on 29/3/2017. Thereafter, petitioner applied for grant of renewal of said quarry lease in accordance with M.P. Minor Mineral Rules, 1996 within time prescribed. Despite having all necessary environment clearance/permission from the competent authority, due to inaction on the part of HIGH COURT OF MADHYA PRADESH 2 W.P.No. 6767/2020 (M/s. Aman Stone Crusher Vs. State of M.P. & Ors.) respondents No. 2 and 3, lease deed had not been executed/renewed. Learned counsel for the petitioner referred the order dated 20/1/2020 passed in W.P.No. 19690/2020 (Smt. Prabha Sharma Vs. State of M.P. & Ors.) and sought parity.
3. Learned counsel for the State opposed the prayer and referred the order dated 27/6/2019 passed in W.P. No. 6215/2019 (Prathvi Infrastructure Pvt. Ltd. Vs. State of MP and Others ) by a Division Bench of this Court at Indore Bench and submits that by the said order allotment for extraction of minor minerals including Stone for making Gitti by mechanical crushing (i.e. use of crusher) shall be granted by way of auction, therefore, grant of lease hold rights are subject to public auction and not by way of allotment.
4. Heard the rival contentions fell for consideration.
5. In the instant case, petitioner sought renewal of lease hold rights in respect of quarry for extracting Stone for making Gitti by mechanical crushing (i.e. use of crusher) and said mineral falls under Entry 6 of Schedule I appended with the M.P. Minor Minerals Rules, 1996 (for short "Rules HIGH COURT OF MADHYA PRADESH 3 W.P.No. 6767/2020 (M/s. Aman Stone Crusher Vs. State of M.P. & Ors.) of 1996").
6. Chapter III of Rules of 1996 deals in respect of Powers to grant Prospective License, Quarry Lease or Trade Quarry; in which Rule 6 deals in respect of power to grant Quarry Lease; whereas, Rule 7 deals in respect of power to grant Trade Quarry. Quarry Lease has been defined in rule 2 (xxv), which means a mining lease for minor minerals as mentioned in Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 (for short "Act of 1957") and Trade Quarry has been defined in Rule 2 (xvi-a), which means a quarry for which the right to work is auctioned.
7. Section 15 of the Act of 1957 deals in respect of power of State Government to make rules in respect of minor minerals, meaning thereby by the Central enactment i.e. Act of 1957 power has been given to the State Government to make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and exercising that power, Rules of 1996 have been framed in which quarry lease and trade quarry have been defined and placed under different provisions. As mentioned earlier, question of Quarry Lease falls under Rule 6 and that HIGH COURT OF MADHYA PRADESH 4 W.P.No. 6767/2020 (M/s. Aman Stone Crusher Vs. State of M.P. & Ors.) of Trade Quarry falls under Rule 7 of Rules of 1996.
8. Table contained in Rule 6 indicates that case of petitioner falls under Entry 6 of Schedule I (specified minerals which can only be granted and renewed as per the procedure prescribed under Rule 6; whereas, Rule 7, specifically deals in respect of grant of quarries of minerals specified in Serial No. 5 of Schedule I (Flagstone and natural sedimentary rocks) and Serial Nos. 1 and 3 of Schedule II (ordinary sand, Bajri, Stone, Boulder etc.) through auction.
9. Since the case here is in respect of Entry 6 of Schedule I, therefore, Legislature has specifically ousted the specified minerals from arena of auction. In other words, quarry of Stone for making Gitti by mechanical crushing (i.e. use of crusher) can only be allotted by the authority as per the procedure prescribed in Rule 6 of Rules of 1996 itself and not through auction (as per Rule 7).
10. By order dated 27/6/2019 passed by Division Bench of this Court at Indore in W.P. No. 6215/2019 (Prathvi Infrastructure Pvt. Ltd. Vs. State of MP and Others ), direction No. B was given to conduct auction in respect of HIGH COURT OF MADHYA PRADESH 5 W.P.No. 6767/2020 (M/s. Aman Stone Crusher Vs. State of M.P. & Ors.) mines for Stone for making Gitti by mechanical crushing (i.e. use of crusher) also, whereas, Rules of 1996, specifically provides for grant of lease hold rights of Stone for making Gitti by mechanical crushing (i.e. use of crusher) by authorities as per Rule 6 and not through auction, because it passes sub silentio, as an exception to the rule of precedent. In the case of P. Suseela and Ors. Vs. University Grants Commission and Ors., (2015) 8 SCC 129, Apex Court has held that Division Bench judgment of same High Court is binding on subsequent Division Bench which can either follow it or refer such judgment to Chief Justice to constitute a Full Bench in case it differs with it.
11. It appears that Division Bench at Indore in the case of Prathvi Infrastructure (supra) proceeded with the assumption that Entry No. 6 of Schedule I i.e. Stone for making Gitti by mechanical crushing (i.e. use of crusher) falls under Schedule II Rule 7 because in Rule 7 Entry No. 3 of Schedule II also starts with Stone, Boulder, Road Metal Giti, Dhoka, Khanda, Dressed Stones, Rubble, Chips, and therefore, directed for auction. Therefore, Entry No. 6 of Schedule I and Entry No. 3 of Schedule II needs to be HIGH COURT OF MADHYA PRADESH 6 W.P.No. 6767/2020 (M/s. Aman Stone Crusher Vs. State of M.P. & Ors.) reconciled and explained, otherwise, it may create confusion in future litigation.
12. This Court (Gwalior Bench) in the case of Smt. Prabha Sharma (supra) vide order dated 20/1/2020 tried to reconcile the controversy by making the order dated 27/6/2019 in Prathvi Infrastructure (supra) by Division Bench at Indore to be prospective but it appears that it would not clarify the legal position and would create confusion and anomaly for future litigation, therefore, in the considered opinion of this Court creases must be ironed out for posterity.
13. Here it appears that constitution of Full Bench is imperative because of legal position crept into the case because of interpretation of Rule 6 and 7 of Rules of 1996. When Rules provides a specific mode of grant or renewal of quarry lease then whether that can be eclipsed by a judicial pronouncement which has the trappings of legislating through judgment and / or diluting the very legislative intent reflected by different modes of allotment in Rule 6 and 7 of Rules of 1996.
14. Therefore, questions involved in this case are that -
HIGH COURT OF MADHYA PRADESH 7 W.P.No. 6767/2020 (M/s. Aman Stone Crusher Vs. State of M.P. & Ors.)
(i) Whether, in view of Rule 6 of M.P. Minor Mineral Rules, 1996, where specific mode of allotment of quarry lease is provided, whether judicial pronouncement can dilute the said provision and direct the authority to hold auction contrary to Rule 6, even it if is for maximization of revenue ?;
(ii) Whether, direction No. B given by Division Bench of this Court at Indore Bench in the case of Prathvi Infrastructure (supra) to hold auction even in respect of Stone for making Gitti by mechanical crushing (i.e. use of crusher) is contrary to Rule 6 of M.P. Minor Mineral Rules, 1996 ?
15. Resultantly, this Court refers the matter to Hon'ble the Chief Justice of this Court with a request to constitute Full Bench to resolve the dispute on questions mentioned above or alternatively on any other question/questions deem fit in the facts and circumstances of the case.
16. Office to place the matter before Hon'ble the Chief Justice on administrative side for appropriate order / direction for constitution of Full Bench.
DHANANJA
(Sheel Nagu) (Anand Pathak)
Y BUCHAKE
2020.07.08
11:54:02
Judge Judge
+05'30'
jps/-