Jharkhand High Court
Ms Singhbhum Mineral Company ... vs The Union Of India Through The Secretary ... on 7 July, 2017
Equivalent citations: AIR 2018 JHARKHAND 65, (2018) 1 JLJR 56, 2018 (1) AJR 758
Author: Pramath Patnaik
Bench: Pramath Patnaik
1 W.P. (C) No. 2509 of 2016
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 2509 of 2016
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1.M/S SINGHBHUM MINERAL COMPANY, a partnership firm,
having its office at Station Road, Post Box No. 24, Chaibasa -
833201, District - West Singhbhum, represented through one of
its Partner Shri Harilal Varjang Rathor, son of Late Varjang Harji
Resident of Chaibasa, P.O and P.S. - Chaibasa, Station Road, Post
Box No. 24, Chaibasa -833201, District - West Singhbum,
Jharkhand.
2.SHRI HARILAL VARJANG RATHOR, son of Late Varjang Harji,
Parter of M/S Singhbhum Mineral Company, Residnt of Chaibasa,
P.O and P.S. - Chaibasa, Chaibasa -833201, District - West
Singhbum, Jharkhand. ... Petitioners
Versus
1.THE UNION OF INDIA, through the Secretary, Ministry of Mines,
Shastri Bhawan, Dr. Rajendra Prasad Road, New Delhi-110001.
2.The State of Jharkhand, through the Secretary, The Department
of Mines & Geology, Nepal House, Doranda, Ranchi, Pin-834002.
.... ... ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE PRAMATH PATNAIK
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For the Petitioners : Mr. Ashok Kumar Parija, Sr. Advocate.
Mr. N.K. Pasari, Advocate
For the Resp-UOI : Mr. Rajiv Sinha, ASGI
Ms. Nitu Sinha, CGC
For the Resp-State : Mr. Ajit Kumar, A.A.G
Ms. Aprajita Bhardwaj, J.C to A.A.G
Mr. Chanchal Jain, J.C to A.A.G
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C.A.V on 11.05.2017 Delivered on 07/07/2017
Per Pramath Patnaik, J.:
In the instant writ application, the petitioners have inter alia
prayed for quashing impugned order dated 02.03.2016, whereby
the revision application filed by the petitioners has not been
admitted by the Revisionary Authority; for quashing impugned
order dated 22.01.2016 whereby application dated 29.06.2015
and 20.08.2015 made by the lessee for extension of the lease in
question was rejected by respondent no. 2; for quashing impugned
2 W.P. (C) No. 2509 of 2016
order dated 02.02.2016 passed by the Deputy Commissioner,
Chaibasa whereby it was ordered to hand over the mining lease to
District Mining Officer, Chaibasa and for quashing impugned
notification dated 08.03.2016 whereby it was declared that now
petitioners have no legal right upon the mining area and the same
is vacant for settlement/auction. The petitioner has further prayed
for declaration to the effect that the petitioner is entitled to avail
the benefit of deemed extension of mining lease in terms of
provisions of MMDR (Amendment) Act, 2015 and also for
declaration to the effect that the subject mining lease of the
petitioners is over the entire leasehold area of 141.64 hectares and
further the petitioner is entitled to operate the mines in terms of
statutory clearance.
2. The factual matrix, as delineated in the writ application in a
nutshell is that initially on 26.04.1956, the then State of Bihar
vide its order dated 26.04.1956 granted a mining lease over an
area of 500 Acres in Karampada Forest Block, Singbhum West,
Chaibasa for a period of 20 years w.e.f 12.12.1956 to 11.12.1976
in favour of one Shri Nanalal Vajrang for Iron & Manganese ore.
However, during currency of the lease, the then lessee, after
obtaining prior approval of the State Government vide order dated
27.05.1965transferred 350 Acres of lease mining area to the present petitioner-M/S Singhbhum Mineral Company and remaining 150 acres was surrendered to State Government.
3. Thereafter, the petitioner applied for first renewal of mining lease, which was granted vide order dated 06.09.1978 for a further period of 20 years w.e.f 12.12.1976 to 11.12.1996. It is 3 W.P. (C) No. 2509 of 2016 averred that due to impending expiry of the lease period, the petitioners applied for second renewal of mining lease on 27.10.1995, much prior to one year before due date of expiry of tenure of the mining lease under Rule 24A(1) of Mineral Concession Rules, 1960 (hereinafter referred to as "M.C Rules, 1960" for the sake of brevity) for further period of twenty years.
4. In order to make out a case that mining lease of the petitioners was subsisting and petitioners time to time obtained pre-requisite clearances, it has further been averred in the writ application that the petitioners submitted application for forest clearance on 29.11.1995 seeking diversion of forest land for the purpose of conducting mining operations over an area of 18.975 hectare and petitioner also got prepared the mining plan as per the provisions of Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to "MMDR Act, 1957"
for the sake of brevity) and Mineral (Conservation & Development) Rules and the said mining was duly approved by Indian Bureau of Mines (IBM) vide letter dated 13.05.1998. It has been averred that even the Central Government, Ministry of Environment and Forest vide letter dated 27.11.1998 granted temporary working permission for a period of nine months to the petitioner. It has further been averred that the State Government, Department of Mines & Geology vide letter dated 01.11.2007 certified that the subject mining lease was valid and subsisting. The petitioner vide letter dated 14.08.2008 also submitted forest diversion proposal before Principal Chief Conservator of Forest, Ranchi. The State Govt vide letter dated 03.09.2009 issued a mining dues clearance 4 W.P. (C) No. 2509 of 2016 certificate certifying that no mining dues towards royalty, deed rent etc was due and payable on the part of petitioner and 'NOC' was accorded by the D.C., Chaibasa and further mining scheme was also approved by Indian Bureau of Mines vide letter dated 03.05.2012 under Rule 12 of Mineral Conservation and Development Rules, 1988. Thereafter, in compliance of guidelines of Ministry of Environment & Forest, Govt. of India, the petitioner filed forest diversion proposal for the entire lease area under Section 2 of the Forest Clearance Act. However, the Ministry of Forest and Environment, Govt. of India vide letter dated 19.09.2013 granted stage-1 clearance under Section 2 of the Forest (Conservation) Act and also granted working permission to the petitioner for a period of one year. The State Government, Department of Mines & Geology issued a lease validity certificate certifying that the mining lease was valid and operative up-to 21.10.2013. On 19.11.2013, the Ministry of Environment and Forest, Govt. of India also granted environment clearance. The Jharkhand State Pollution Control Board granted consent vide letter dated 13.12.2013 for establishment of the mining project and vide letter dated 28.12.2013 granted consent to operate for the said project. Accordingly, the Divisional Forest Officer, Chaibasa issued working permission for conducting the mining operations in lease-hold area. After obtaining the necessary clearances by the petitioners, a notice for reopening of mine was given under Rule 22 and 25 of the Mineral (Conservation and Development) Rules, 1988 and accordingly, the petitioner resumed operation of mining since 06.01.2014 under intimation to District 5 W.P. (C) No. 2509 of 2016 Mining Officer, Chaibasa. Thus, there was no discontinuation of mining operations for more than two years as contemplated under Section 4A(4) of MMDR Act read with Rules 28(1) of the M.C. Rules, 1960.
5. But, to the utter surprise and consternation, the petitioners' mining operations was stopped on the basis of amendment in Rules 24-A(6) of the M.C. Rules, 1960 vide notification dated 18.07.2014, when the State Government vide letter dated 04.09.2014 directed the petitioner to stop the mining operations.
6. It has further been averred that while the renewal application of the petitioner was pending, the Hon'ble President of India vide Gazette Notification dated 12.01.2015 promulgated an Ordinance, known as Mines and Minerals (Development & Regulation) Amendment Ordinance, 2015 and by virtue of Section 8-A(6) of the said Ordinance, the period of last executed mining lease is deemed to have been extended for a period up-to 31.03.2020. After amendment in the said Act, known as Mines and Minerals (Development & Regulation) Amendment, 2015 (hereinafter referred to as "MMDR Amendment Act, 2015" for the sake of brevity) the petitioner vide letters dated 16.02.2015 and 27.05.2015 addressed to the Secretary of Mines and Geology, Government of Jharkhand requested the State Government to implement the provisions of MMDR Amendment Act, 2015 and to issue necessary orders including lease validity certificate in view of provisions as contained u/s 8-A(6) of the MMDR Amendment Act, 2015. In this regard, it has been averred that Ministry of Mines, Central Government vide letter dated 05.02.2015 issued a general 6 W.P. (C) No. 2509 of 2016 advisory to all the State Governments including the State of Jharkhand to implement the provisions as contained in Section 8- A of the MMDR Amendment Act 2015 and to extend the period of mining lease. Pursuant thereto, the State of Jharkhand, Department of Mines and Geology vide letter dated 24.03.2015 also issued a mining dues clearance certificate certifying that no mining dues is payable on the part of the petitioner. It has been submitted that instead of complying the provisions of MMDR Amendment Act, 2015, the State Government initiated a post- facto inquiry as to whether the petitioners have at any point of time failed to comply the terms and conditions of the mining lease prior to commencement of MMDR Amendment Act, 2015, accordingly, notice dated 15.06.2015 was issued by respondent no. 2, to which, the petitioner replied vide letter dated 29.06.2015 contending inter alia that the said notice is without jurisdiction and contrary to the express provisions of Section 8-A(6) of the MMDR Amendment Act, 2015 and further such post-facto inquiry is also derogatory to the basic objective of the said transitional provision of Section 8A(6) of the MMDR Amendment Act, 2015. But the respondents without deciding the matter issued another notice dated 31.07.2015 on the self same allegation, to which, the petitioner again replied vide letter dated 20.8.2015. After receipt of said reply, the State Government constituted a committee for hearing the matter and the petitioner was directed to appear before the committee on 24.08.2015, wherein specific plea was taken by the petitioner that in view of the provisions as contained in Section 8-A(6) of the Act, there is automatic extension to the 7 W.P. (C) No. 2509 of 2016 period last executed mining lease, therefore, the State Government cannot deny the benefit of a statutory provisions on the pretext of making post facto inquiry.
7. It has further been averred that the State Government vide letter dated 25.03.2015, after issuing a no dues clearance certificate on 24.03.2015 and moreover after promulgation of MMDR Act on 12.01.2015 has raised demand for the cost price of ore relying on subsequent amendment made in Rule 24A(6) of the M.C Rules, 1960. Thereafter, the petitioner filed detailed reply, which did not evoke any response, hence, the petitioner filed a revision petition, which is stated to be still pending.
8. It has been averred that after having received the copies of reply to the notices and having conducted the hearing in the matter, respondent no. 2 passed impugned order dated 22.01.2016 denying to extend the benefit of provisions as contemplated in Section 8-A(6) of the MMDR Amendment Act, 2015. Thereafter, the petitioner preferred Revision Petition u/s 30 of the MMDR Act to assail order dated 22.01.2016 and 02.02.2016, but the revisional authority refused to admit the revision petition and rejected the same vide order dated 02.03.2016.
9. For the reasons elaborated in the preceding paragraphs, the petitioners approached this Court under Article 226 of the Constitution of India for redressal of his grievances.
10. Controverting the averments made in the writ application, counter affidavit has been filed by respondent no. 2, wherein it has been contended that M/S Singhbhum Mineral Company filed 8 W.P. (C) No. 2509 of 2016 an application for second renewal of subject mining lease on 27.10.1995 over an area of 350 acres of Karampada Reserve Forest for Iron ore, which was forwarded by Deputy Commissioner, Chaibasa to the Director, Mines, Government of Bihar vide memo dated 25.02.1997 with a specific recommendation that the lessee does not deserve second renewal over this area on account of huge arrears of Government revenue and also on account of non-submission of approved mining plan. It has further been contended that on account of discontinuance of mining operations beyond two years, the District Mining Officer, Chaibasa issued a 60 days' notice dated 16.06.2005 for declaring the mining lease as lapsed, which was replied by the lessee vide letter dated 18/19.07.2005 along with statutory application under Rule 28-A of the M.C. Rules, 1960 for revival of lapsed lease by depositing a fee of Rs. 500/-. Besides, there were complaints of violation of Rule 37 of the M.C Rules, 1960, which was duly enquired by the District Mining Officer, Chaibasa and the State Government, and on examination, it was found that there was illegal transfer of right, title and interest of the mining lease in question in favour of third party, namely, Taurian Iron & Steel Company, which fact finds support from the bank entries made in favour of said third party and got established in the report submitted by the Committee constituted to examine the matter. It has further been submitted that in the year 2014, when it came to knowledge of the authority that petitioner started illegal mining over the discontinued and lapsed lease without any order of revival from the State Government under Rule 28-A of the M.C. 9 W.P. (C) No. 2509 of 2016 Rules, 1960, the District Mining Officer, Chaibasa served an order dated 28.06.2014 upon the petitioner under Section 4A(4) of the MMDR Act, 1957 prohibiting transit challan/permit etc., which order was never challenged by the petitioners, thereby petitioners accepted the lapsing of the mining lease on account of discontinuance for a period December, 1996 to December, 2013. Thereafter, the District Mining Officer issued a 60 days notice to the petitioners for realization of price of illegally mined mineral. It has been contended that only thereafter, the State Government left with no option other than to deny the extension of the lapsed mining lease issued detailed notice dated 31.07.2015 and after affording sufficient opportunity of personal hearing on 24.08.2015, the State Government denied the extension of the mining lease on account of express provision as contemplated in Section 8A(9) of the MMDR Amendment Act, 2015 vide Government Order dated 22.01.2016 as this was not a subsisting lease as on 12.01.2015, the cut-off date on which Amendment came into force. It has further been submitted that aforesaid order dated 22.01.2016 was challenged before the Revisional Authority u/s 30 of the MMDR Amendment Act, 2015, which was rejected vide order dated 02.03.2016. Thereafter, the petitioner challenged the order dated 02.03.2016 before this Hon'ble Court by way of filing W.P. (C) No. 2958 of 2016, which was decided against the petitioner, however, with liberty to the petitioner to file a proceeding in an appropriate Court in accordance with law. It has been submitted that meanwhile the possession of the mining lease hold area has already been taken in favour of State Government 10 W.P. (C) No. 2509 of 2016 and duly published in State Gazette dated 08.03.2016 for auction as per law.
11. Heard learned senior counsel, assisted by Mr. N.K. Pasari, learned counsel for the petitioners; Mr.learned A.S.G.I. assisted by learned CGC for the respondents-Union of India and learned A.A.G assisted by his Junior Counsels, for the respondents-State and with the consent of learned counsel appearing for the parties, the writ petition is being disposed of at the stage of admission.
12. Before adverting to the rivalized submissions of learned counsel for the parties, for better appreciation and better appraisal of the case, it would be profitable to quote relevant provisions of the MMDR Act 1957/MMDR Amendment Act, 2015 and M.C. Rules 1960, which are reproduced herein below:
MMDR Act, 1957:
Section 4-A: Termination of prospecting licences or mining leases-
(1).xxx xxx xxx
(2).xxx xxx xxx
(3).xxx xxx xxx
(4).Where the holder of a 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:
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, 11 W.P. (C) No. 2509 of 2016 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 the entire period of the lease.] "8-A. Period of grant of a mining lease for minerals other than coal, lignite and atomic minerals.-- (1) The provisions of this section shall apply to minerals other than those specified in Part A and Part B of the First Schedule.
(2) On and from the date of the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, all mining leases shall be granted for the period of fifty years.
(3) All mining leases granted before the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 shall be deemed to have been granted for a period of fifty years.12 W.P. (C) No. 2509 of 2016
(4) On the expiry of the lease period, the lease shall be put up for auction as per the procedure specified in this Act. (5) 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, where mineral is used for captive purpose, shall be extended and be deemed to have been extended up to a period ending on 31-3-
2030 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. (6) 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, 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 31-3-2020 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.
(7) Any holder of a lease granted, where mineral is used for captive purpose, shall have the right of first refusal at the time of auction held for such lease after the expiry of the lease period.
(8) Notwithstanding anything contained in this section, the period of mining leases, including existing mining leases, of government companies or corporations shall be such as may be prescribed by the Central Government.
(9) The provisions of this section, notwithstanding anything contained therein, shall not apply to a mining lease granted 13 W.P. (C) No. 2509 of 2016 before the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, for which renewal has been rejected, or which has been determined, or lapsed."
30.Power of revision by Central Government -The Central Government may, of its own motion or on an application made within the prescribed time by an aggrieved party, -
(a)revise any order made by the State Government or other authority in exercise of the powers conferred on it by or under this Act with respect to any mineral other than a minor mineral; or
(b)where no such order has been made by the State Government or other authority in exercise of the powers conferred on it by or under this Act with respect to any mineral other than a minor mineral within the time prescribed therefor, pass such order as it may think fit and appropriate in the circumstances:
Provided that in cases covered by clause (b) the Central Government shall before passing any other under this clause, give an opportunity of being heard or to represent in the matter.
Mineral Concession Rules, 1960:
"24-A. Renewal of mining lease.--
(1) An application for the renewal of a mining lease shall be made to the State Government in Form J, at least twelve months before the date on which the lease is due to expire, through such officer or authority as the State Government may specify in this behalf.
(2) The renewal or renewals of a mining lease granted in respect of a mineral specified in Part A and Part B of the First Schedule to the Act may be granted by the State Government with the previous approval of the Central Government. (3) The renewal or renewals of a mining lease granted in respect of a mineral not specified in Part A and Part B of the 14 W.P. (C) No. 2509 of 2016 First Schedule to the Act may be granted by the State Government:
Provided that before granting approval for second or subsequent renewal of a mining lease, the State Government shall seek a report from the Controller General, Indian Bureau of Mines, as to whether it would be in the interest of mineral development to grant the renewal of the mining lease:
Provided further that in case a report is not received from the Controller General, Indian Bureau of Mines in a period of three months of receipt of the communication from the State Government, it would be deemed that the Indian Bureau of Mines has no adverse comments to offer regarding the grant of the renewal of mining lease. (4) An application for the renewal of a mining lease shall be disposed of within a period of six months from the date of its receipt.
(5) If an application is not disposed of within the period specified in sub-rule (4) it shall be deemed to have been refused.
(6) If an application for renewal of a mining lease made within the time referred to in sub-rule (1) is not disposed of by the State Government before the date of expiry of the lease, the period of that lease shall be deemed to have been extended by a further period till the State Government passes order thereon."
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 (sic two years) from the date of execution of the lease, or is discontinued for a continuous period of one year (sic two years) 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 (sic two years) from the 15 W.P. (C) No. 2509 of 2016 date of execution of the mining lease, or discontinues mining operations for a period exceeding one year (sic two years) 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 fee of Rs 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 the 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-16 W.P. (C) No. 2509 of 2016
commencement of operations for a continuous period of more than one year (sic two years).
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 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 (sic two years).
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 Rs 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."
54.Application for revision-(1)Any person aggrieved by any order made by the State Government or other authority in exercise of the powers conferred on it by the Act or these rules may, within [three months] of the date of communication of the order to him, apply to the Central Government in triplicate in Form N, for revision of the order. The application should be accompanied by [ a Bank Draft for [five thousand rupees] on a nationalsed bank in the name of "Pay and Accounts Officer, Department of Mines" payable at New Delhi or through a treasury challan for [ five thousand rupees] under the Head of Account - 0853-NOn-ferrous Mining and Metallurgial 17 W.P. (C) No. 2509 of 2016 Industries-102 Mineral Concession Fees, Rents and Royalties:] Provided that any such application may be entertained after the said period of [ three months] if the applicant satisfies the Central Government that he had sufficient cause for not making the application within time.
(2)In every application under sub-rule (1) against the order of a State Government refusing to grant prospecting license or a mining lease, any person to whom a prospecting license or mining lease was granted in respect of the same area or for a part thereof, shall be impleaded as party.
(3)Alongwith the application under sub-rule (1) the applicant shall submit as many copies thereof as there are parties impleaded under sub-rule (2).
(4).On receipt of the application and the copies thereof, the Central Government shall send a copy of the application to cash of the parties impleaded under sub-rule (2) specifying a date on or before which he may make his representations, if any, against the revision application.
55. Orders on revision application.- (1) On receipt of an application for revision under rule 54, copies thereof shall be sent to the State Government or other authority and to all the impleaded parties calling upon them to make such comments as they may like to make within three months from the date of issue of the communication, and the State Government or other authority and the impleaded parties, while furnishing comments to the Central Government shall simultaneously endorse a copy of the comments to the other parties.
(2) Comments received from any party under sub-rule (1) shall be sent to the other parties for making such further comments as they may like to make within one month from the date of issue of the communication and the parties making further comments shall send them to all the other parties. 18 W.P. (C) No. 2509 of 2016
(3) The revision application, the communications containing comments and counter-comments referred to in sub-rules (1) and (2)shall constitute the records of the case. (4) After considering the records referred to in sub-rule (3), the Central Government may, confirm, modify or set aside the order or pass such other order in relation thereto as the Central Government may deem just and proper.
(5) Pending the final disposal of an application for revision, the Central Government may, for sufficient cause, stay the execution of the order against which any revision application has been made.
13. Learned senior counsel for the petitioner while assailing the order passed by the revisionary authority referring to Rule 54 and 55 of the M.C. Rules and Section 30 of MMDR Act submitted that due to non-compliance of those provisions, the order passed by the Revisionary Authority at Annexure -1 is nullity in the eye of law. Learned senior counsel for the petitioner further submitted that in view of the judgment passed by Hon'ble Apex Court in W.P. (C) No. 114 of 2014 in the case of Common Cause Vs. Union of India & Ors dated 04.04.2016, there cannot be automatic lapsing of mining lease unless an order is passed by the State Government after giving notice and opportunity of hearing. It has further been contended that prior to passing of order under Section 4-A(4) of MMDR Act, 1957 read with Rule 28 (1) of the M.C. Rules, 1960, the petitioner ought to have been given opportunity of hearing and order of lapsing should not have been passed without complying with the principles of natural justice, which has not been done in the case at hand. It has further been submitted that the lessee after having obtained all 19 W.P. (C) No. 2509 of 2016 pre-requisite clearances resumed mining operation from January, 2014 and conducted mining operations up-to September, 2014 till the State Government directed the petitioner to stop the mining operations. Learned senior counsel for the petitioners further submitted that on the date of commencement of MMDR Amendment Act, 2015 the application for renewal filed by the petitioner was pending before the State Govt., on which, no order was passed by the State Government to declare the mining lease as lapsed nor any such order was ever communicated as per Rules 28 (1) of the M.C. Rules, 1960, thus, the petitioners' mining lease was valid and subsisting as on 12.01.2015, as per law laid down in the case of Common Cause (Supra).
14. Learned senior counsel for the petitioner, in support of his contention also relied upon the judgment dated 5.08.2016 delivered by Division Bench of Hon'ble Orissa High Court in the case of M/s Essel Mining & Industries Ltd. Vs. Union of India & Ors. passed in W.P. (C) No. 5008 of 2016, wherein the Hon'ble Court considering the case of Common Cause (Supra) and relevant provisions of MMDR Act and M.C Rules, quashed the impugned order and remitted the matter to the State Government to pass fresh order in accordance with law.
14. Per contra, learned A.A.G appearing for the State of Jharkhand submitted with vehemence that question of granting opportunity of hearing would arise only when an application had been filed by the petitioner under Section 4-A(4) of the MMDR Act, 1957 read with Rule 28(2) of the M.C Rules, 1960. Learned A.A.G appearing for the respondent-State further submitted that since 20 W.P. (C) No. 2509 of 2016 mining operations has been discontinued from 1996 to 2013 so it was not a case of subsisting lease rather in the case at hand mining operation had been discontinued for over two years, hence, the same stood automatically lapsed by virtue of deeming provisions law, immediately after the period of two years of discontinuance. Learned A.A.G appearing for the State further submitted that petitioner has got no case in the light of judgment passed in Common Cause (Supra) as on the face of order dated 28.06.2014 passed by District Mining Officer, Chaibasa, the lease in question was not a subsisting lease as on 12.01.2015, the cut- off date on which, the amendment in MMDR Act came into force.
15. On perusal of impugned order dated 02.03.2016 passed by the revisional authority, it would be evident that the revisional- authority without adhering to the relevant provisions of the M.C Rules, 1960, more particularly Rules 54 and 55, has passed the impugned order rendering the same to be nullity in view breach of aforesaid provisions.
16. So far as order dated 22.01.2016 passed by the State Government is concerned, it can safely be concluded that on the basis of assumption that subject of mining lease of the petitioner has lapsed automatically due to non-mining (discontinuance) of mining from 1996 to 2013 but the view of the State Government runs contrary to the decision of Hon'ble Apex Court in the case of Common Cause (Supra), wherein the Hon'ble Apex Court in unequivocal terms has enunciated that lease cannot lapse automatically unless an order is passed by the State Government after giving notice and opportunity of hearing. The Hon'ble Apex 21 W.P. (C) No. 2509 of 2016 Court has considered the vital question of automatic lapsing at length and reached at a conclusion that there cannot be a deeming provision for automatic lapsing of lease, as the lease holder could have valid reasons for discontinuance, which could be, because of an order passed the authority, or any other legal compulsion. Another point which leans in favour of the petitioner that on the date of commencement of MMDR Amendment Act, 2015, the matter of renewal/extension was pending before the State Government, therefore, it can be construed that the mining lease of the petitioner was not lapsed as neither any order was ever communicated by the State Government, as per relevant Rules of the MC Rules, 1960.
17. Moreover, from bare perusal of impugned order dated 02.03.2016 passed in Revision Application, it appears that by an cryptic order, the same was even not admitted and was rejected summarily without affording any opportunity of hearing to the petitioners, hence, the same has leg to stand, in view of non- compliance of principles of natural justice.
18. In view of the aforesaid facts, reasons and law laid down by Hon'ble Apex Court in the case of Common Cause (Supra) and M/s Essel Mining & Industries Ltd. the impugned order passed by the State Government dated 22.01.2016 rejecting the application of extension of lease; order dated 02.03.2016 passed by Revisionary Authority and consequential order dated 02.02.2016 and 08.03.2016 are hereby quashed and set aside and the matter is remitted to the respondent-State of Jharkhand to pass appropriate order, without being influenced by any observations 22 W.P. (C) No. 2509 of 2016 made in the foregoing paragraphs, after affording sufficient opportunity to the petitioner in the light of judgment delivered in the case of Common Cause (Supra) in accordance with relevant provisions of MMDR Act and MC Act, as expeditiously as possible preferably within a period of four months from the date of receipt/production of copy of this order.
19. With the aforesaid observations and directions, the writ petition stands disposed of.
(Pramath Patnaik, J.) Alankar/-