Rajasthan High Court - Jodhpur
Union Mineral Corporation vs State And Ors on 31 August, 2023
Author: Nupur Bhati
Bench: Nupur Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
S.B. Civil Writ Petition No. 3183/2017
Union Mineral Corporation, a registered partnership firm through
its power of attorney holder Gauri Shankar Joshi son of Shri Hem
Raj Joshi aged 72 years resident of Village Thana, Nichla Bus
Stand Tehsil and District Dungarpur.
----Petitioner
Versus
1. State of Rajasthan through the Secretary to the Government
of Rajasthan, Mines Department, Jaipur.
2. The Director, Mines & Geology Department,
(Rajasthan), Udaipur
3. The Mining Engineer, Mines & Geology Department,
Dungarpur.
----Respondent
For Petitioner(s) : Mr. D.D. Thanvi
For Respondent(s) : Mr. Digvijay Singh Jasol
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment Reserved on: 16/08/2023 Pronounced on: 31/08/2023
1. At the joint consent of the learned counsels for the parties, the matter is heard finally today itself.
2. The present amended writ petition is filed under Article 226 of the Constitution of India claiming following reliefs:
"It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction:-
i) quash the order dated 13.12.2016 (Annexure-6 and Annexure 7); and
ii) the respondents may be directed to grant the first renewal of mining lease for mineral soapstone permitting the humble petitioner to avail the renewed period of mining (Downloaded on 12/11/2023 at 05:15:46 AM) (2 of 15) [CW-3183/2017] lease by handing over possession to the humble petitioner within a given time; and
iii) any other appropriate relief which this Hon'ble Court deems it necessary in the facts and circumstances of the present case be granted in favour of the petitioner; and
vi) award the costs of this writ petition to the petitioner against the respondents."
3. The factual matrix of the case is that the petitioner is a partnership firm and was granted a mining lease for mineral Soapstone and Asbestos Near Village Ghughra, Tehsil and District Dungarpur for a period of 20 years w.e.f. 02.05.1970 for an area measuring 104.415 hectares. During the currency of the lease the petitioner had surrendered 60.365 hectare area by making a part surrender application and the same was accepted on 13.03.1989.
4. The petitioner-firm had applied for first renewal of the mining lease vide application dated 28.04.1989 for 46.06 hectare retained area, however, the Secretary, Department of Mines, Government of Rajasthan, Jaipur, Respondent No. 1, did not decide the renewal application within the time stipulated under the Mineral Concession Rule, 1960 (hereinafter referred to as 'Rules of 1960') at the relevant time and the first renewal application came in the category of deemed to have been refused.
5. The petitioner being aggrieved against the deemed refusal of the renewal application had filed a Revision Petition (Revision Application No. 1/RJ-58/91-M.IV) dated 27.04.1991 before the Central Government, in which the Joint Secretary, Ministry of Steel and Mines, Department of Mines, Government of India, vide final order NO.292/1991 dated 13.06.1991 set aside the deemed (Downloaded on 12/11/2023 at 05:15:46 AM) (3 of 15) [CW-3183/2017] refusal and directed the Secretary, Department of Mines, Government of Rajasthan, Respondent No. 1, to pass a final and speaking order on the renewal application of the petitioner within 200 days.
6. The Secretary, Department of Mines, Government of Rajasthan, Respondent No. 1, vide its order dated 20.07.1993, without any notice and without affording any opportunity of hearing, proceeded to reject the renewal application on the ground that the Central Government had not granted approval under Section 5 (1) of the Mines and Mineral (Development and Regulation) Act, 1951 (hereinafter referred to as 'the Act of 1951').
7. Thereafter the petitioner being aggrieved by the order dated 20.07.1993 passed by the State Government, Respondent No. 1, against the refusal of renewal even in respect of mineral soapstone had filed a civil suit in Case No. 225/93 for Declaration and Permanent Injunction before the Court of Civil Judge (Junior Division), Dungarpur, who vide its judgment and decree dated 15.01.2001 dismissed the suit of the petitioner.
8. Being aggrieved against the judgment and decree dated 15.01.2001 passed by the Civil Judge (Junior Division), Dungarpur, petitioner had filed an appeal in Civil Appeal No. 02/2001 before the court of District Judge, Dungarpur, who also vide judgment and decree dated 18.10.2006 dismissed the appeal of the petitioner and affirmed the judgment and decree dated 15.01.2001 passed by the Civil Judge (Junior Division), Dungarpur.
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9. Thereafter, the petitioner had preferred a second appeal before this Hon'ble Court being S.B. Civil Second Appeal No. 436/2006, which was decided by the Judgement dated 10.12.2015 and the respondents were directed to consider the renewal application of the petitioner after giving due and proper opportunity of hearing to the petitioner and also the judgement and decree dated 15.01.2001 passed by Civil Judge (Junior Division), Dungarpur in Case No. 225/93 and the judgement and decree dated 18.10.2006 passed by District Judge, Dungarpur in Civil Appeal No. 02/2001 were set aside.
10. Earlier to this the Director, Department of Mines and Geology, Udaipur, Respondent No. 2, vide his letter dated 07.12.1999 had requested the State Government, Respondent No. 1, that looking to the nill production of asbestos in the area, it would be in the interest of the State Government that renewal for mineral soapstone only is concerned by withdrawing the order dated 20.07.1993.
11. The petitioner in compliance of the judgment dated 10.12.2015 passed in the S.B. Civil Second Appeal No. 436/2006 by this Hon'ble High Court had made a detailed representation dated 13.01.2006 before the State Government, Respondent No.1.
12. Then the petitioner had requested by an application dated 09.05.2016 to the Mining Engineer, Department of Mines and Geology, Udaipur, Respondent No. 3, to accept the surrender of mineral asbestos in accordance with the Rule 29 (1) of the Rules of 1960. While submitting that the State Government, Respondent (Downloaded on 12/11/2023 at 05:15:46 AM) (5 of 15) [CW-3183/2017] No. 1, vide orders dated 23.08.2013 and 28.06.1996 has been accepting the surrender of mineral asbestos where the mining leases stood granted for other minerals including asbestos.
13. On the date of commencement of Mines and Minerals (Development and Regulation) Ordinance, 2015 (hereinafter referred to as 'Ordinance of 2015') mineral soapstone was a major mineral and under the Ordinance of 2015, the period of mining lease under renewal had been directed to be extended to 50 years and the Department of Mines had extended the period of such leases in a number of cases.
14. During the pendency of the second appeal, the petitioner had deposited a sum of Rs. 2,67,840/- vide cheque dated 10.10.2014 against the dead rent and also the petitioner gave undertaking for depositing any further amount that may be found due against the petitioner.
15. Thereafter, the State Government, Respondent No. 1, vide order dated 13.12.2016 has again rejected the renewal application even for Soapstone while conducting hearing in the matter on 28.09.2016.
16. Thereafter, when this petition came up before this Hon'ble Court, this court vide order dated 17.03.2023 directed the respondents to pass a speaking order regarding mineral soapstone for renewal of the lease of the petitioner in the period of 15 days strictly in accordance with law while keeping into consideration the previous order dated 10.12.2015 passed by this court in SB Civil Second Appeal No. 436/2006 and also keeping into consideration Annexure 5.
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17. Thereafter, the Secretary, Department of Mines, Government of Rajasthan, Respondent No. 1, rejected the first renewal application of the petitioner vide order dated 12.05.2023 (Annexure 7).
18. Hence, the petitioner being aggrieved against the refusal of renewal of mining lease even in respect of mineral soapstone vide order dated 12.05.2023 (Annexure 7) files this writ petition.
19. The learned counsel for the petitioner submitted that the mineral soapstone is neither a banned mineral nor a scheduled mineral and hence, the State Government has erred in law while passing the impugned order dated 13.12.2016 by which the State Government rejected the renewal application filed by the petitioner and again rejected the renewal application of the petitioner for mineral Soapstone by the order dated 12.05.2023.
20. The learned counsel for the petitioner also submitted that the State Government could have granted renewal to the petitioner way back in the year 1993 itself and thereafter had no authority to cancel the entire renewal application.
21. The learned counsel for the petitioner further submitted that the State Government, Respondent No.1, while passing the impugned order dated 13.12.2016 has over again rejected the renewal application of the petitioner on the ground that there is presently no provision for surrender of mineral which is totally misconceived, as a bare perusal of the office order dated 28.06.1996 passed by Executive Engineer, Department of Mines (Annexure-5) reveals that the respondent Department of Mines has been accepting the surrender of mineral asbestos from the (Downloaded on 12/11/2023 at 05:15:46 AM) (7 of 15) [CW-3183/2017] mining leases, which stood granted for a mineral in addition to mineral asbestos. However, the surrender of mineral has to relate back to the year 1993 and has nothing to do with the Rules of 2016 referred to in the impugned order.
22. The learned counsel for the petitioner also submitted that it is well established on record that there is no availability of mineral asbestos in the mining lease area and the Director had categorically recommended for reconsideration of the matter and for grant of renewal at least for mineral soapstone and there was no impediment in the way of grant of renewal of mining lease for mineral soapstone.
23. The learned counsel for the petitioner further submitted that the another ground for refusal of renewal of mining lease with effect from 13.10.1989, which was refused in the year 1993, which led to prolonged litigation, is that the petitioner has not filed second renewal application, this ground is baseless, inasmuch as, once the matter was sub-judice and the possession of the area remained with the Department of Mines, the question of second renewal application does not arise under such circumstance and hence, the entire matter is related to first renewal of mining lease for mineral soapstone alone.
24. The learned counsel for the petitioner also submitted that during the pendency of Second Appeal, the petitioner had deposited the sum of Rs. 2,67,840/- vide cheque dated 10.10.2014 against the dead rent demanded and also gave undertaking that he will deposit any further amount which will be found due against him.
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25. The learned counsel for the petitioner further submitted that the renewal of soapstone never required any approval of the Central Government and the State Government was not powerless to grant the renewal for mineral soapstone alone and there was no need of surrender of mineral asbestos.
26. The learned counsel for the petitioner also submitted that the State Government, Respondent No. 1, while passing the order dated 13.12.2016 and order dated 12.05.2023 has failed to consider the material available on record, which resulted in grave failure of justice to the petitioner.
27. The learned counsel for the petitioner further submitted that the petitioner is entitled to grant of renewal of mining lease for the retained area for mineral soapstone and is also entitled to avail the period, which has been lost on the account of prolonged litigation.
28. The learned counsel for the petitioner also submitted that the respondent are under obligation to grant renewal of the lease for the mineral soapastone as this court vide order dated 17.03.2023 in this writ petition had directed the respondent to pass a speaking order, but the Secretary, Department of Mines, Government of Rajasthan, Respondent No. 1, vide order dated 12.05.2023 rejected the renewal application of the petitioner without appreciating the factual material of the case.
29. The learned counsel for the petitioner drew attention of this court towards the application (IA No. 3/2023), whereby the petitioner has brought on record certain documents, i.e; Annexure A/1 to A/4, annexed with the application.
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30. Per Contra, the learned counsel for the respondents submitted that the petitioner applied for renewal of mining lease vide application dated 28.04.1989 and thereafter, proposal for renewal was sent to the office of the Mining Engineer, Udaipur vide letter dated 23.1.1990 by the Mining Engineer, Dungarpur. The Mining Engineer, Udaipur thereafter sent proposal for renewal to the Director, Department of Mines, Udaipur vide letter dated 8.2.1990 and the Directorate sent the proposal to the State Government. The State Government thereafter, sent the proposal to the Ministry of Steel and Mines, New Delhi since the mineral involved in the mining lease area is a scheduled mineral and therefore, Government of India issued an interim order dated 13.6.1991 granting 200 days time to dispose of the application. The learned counsel for the respondent further submitted that the application of the petitioner for renewal of the mining lease for a further period was rejected by an order dated 20.7.1993 by the competent authority since the mineral in the mining lease area in question was scheduled minerals namely mineral soapstone and mineral asbestos.
31. The learned counsel for the respondent further submitted that the petitioner has concealed the fact of filing CW. No.6113/1992 before this Hon'ble Court in which the court vide order dated 17.11.1992 disposed the writ petition with the directions to the State Government to decide the application of the petitioner within a period of 3 months on merits. Thus, the reasoned and speaking order dated 20.7.1993 was passed by the competent authority in accordance with law.
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32. The learned counsel for the respondent also submitted that the period of first renewal of the mining lease lapsed in the year 2010 and the petitioner has not submitted application for second renewal of the mining lease and also, at present, case of the mining lease in question is covered by the provisions of the Mineral (Other than Atomic and Hydro Carbons Energy Minerals) Concession Rules, 2016, i.e. provisions relating to grant and regulation of mineral concessions under the Mines and Minerals (Development and Regulation) Act, 1957. The learned counsel for the respondent further submitted that under the Rules of 2016, mining lease for mineral soapstone along with mineral Asbestos cannot be renewed since the Central Government has imposed ban on grant and renewal of such mining leases for mineral Asbestos. The learned counsel for respondent also submitted that further, since there is no provision for the surrender of minerals in the Rules of 2016, therefore, the renewal of mining lease for mineral Soapstone alone is not possible, hence the first renewal application was rightly rejected.
33. The learned counsel for the respondent further submitted that the mining lease in question contains not only mineral Soapstone, but it also contains mineral Asbestos and in view of the provisions of the Rules of 2016, there is complete ban on grant of mining lease or renewal of mining lease for mineral Asbestos. The ban has been imposed by the Government of India and hence, petitioner cannot claim second renewal of mining lease in question as a matter of right.
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34. The learned counsel for the respondent also submitted that as per record of the office of the Mining Engineer, Dungarpur, no such cheque amounting to Rs.2,67,840/- has been deposited by the petitioner rather the cheque was received from one Gauri Shankar Sharma who in turn was asked to present registered Power of Attorney but no such response was received from that person.
35. The learned counsel for the respondent further submitted that the competent authority has again rejected the renewal of the mining lease of the petitioner vide order dated 12.05.2023, which was passed by the respondent in pursuance of the order dated 17.03.2023 passed by this court in this writ petition.
36. The learned counsel for the respondent also submitted that apart, from the fact that the mining lease was in operation from 02.05.1970 to 01.05.1990 for a period of 20 years, the period of first renewal, i.e; 02.05.1990 came to an end on 01.05.2010 and it is an admitted position of the case that no application for second renewal was filed by the petitioner. The learned counsel for the respondent further submitted that the pretext taken by the petitioner that since litigation was going-on, thus, there was no need to file the second renewal application on the face of it is not sustainable as there was no stay or impediment in petitioner's filing application for second renewal and as such, question of extension of period of mining lease as per Section 8A(6) of the MMDR Act, 2015 does not arise.
37. The learned counsel for the respondent further submitted that the Government of India Vide notification dated 10.2.2015 (Downloaded on 12/11/2023 at 05:15:46 AM) (12 of 15) [CW-3183/2017] declared mineral Soapstone as minor mineral and mining lease in question also is having mineral Asbestos which is still a major mineral and hence, there is no provision of surrender of minerals in the prevalent rules and therefore, renewal of mining lease for mineral Soapstone alone cannot be granted.
38. Heard the learned counsels for the parties as well as perused the material available on the record.
39. This court finds that the order dated 23.08.2013 and 28.06.1996 were passed by the Director, Department of Mines and Geology, Udaipur, Respondent No. 1, through which the respondent department accepted the surrender of mining lease for particular mineral and granted permission to excavate the other mineral while invoking the provision of law available under the Rules of 1960. The said provision is reproduced hereunder:
"29. Restriction on determination of lease:- (1) The lessee shall not determine the lease except after notice in writing of not less than twelve calendar months to the State Government or to such officer, or authority as the State Government may specify in this behalf:
Provided that where a lessee holding a mining lease for a group of minerals applies for the surrender of any mineral from the lease on the ground that deposits of that mineral have since exhausted or depleted to such an extent that it is no longer economical to work the mineral, the State Government may permit the lessee to surrender that mineral, subject to the following conditions, namely:-
(a) the lessee applies for such surrender of mineral at least six months before the intended date of surrender; and
(b) the lessee gives an undertaking that he will not cause any hindrance in the working of the mineral so surrendered (Downloaded on 12/11/2023 at 05:15:46 AM) (13 of 15) [CW-3183/2017] by any other person who is subsequently granted a mining lease in respect of that mineral:
Provided further that where a lessee applies for the surrender of the whole or a part of lease-hold area on the ground that such area is barren or the deposits of minerals have since exhausted or depleted to such an extent that it is no longer economical to work such area, the State Government shall permit the lessee, from the date of receipt of the application, to surrender that area if the following conditions are satisfied, namely:-
(a) the lease-hold area to be surrendered has been properly surveyed and is contiguous,
(b) the lessee has paid all the dues payable to the Government under the lease up to the date of application, and
(c) the lessee has obtained a certificate under rule 29A.
Provided also that surrender of the lease area by the lessee shall be permitted only thrice during the period of the lease on fulfilling the conditions -
(i) that at least a period of five years has elapsed since the last surrender; and
(ii) that the provisions of the mining plan including the environment management plan thereof have been complied with. (2) Every application for the surrender of a part of lease-hold area in accordance with the provisions of sub-
rule (1), shall be accompanied by a deposit of two hundred rupees for meeting the expenditure for the purpose of survey and demarcation of the area to be surrendered:
Provided that the lessee shall deposit such further amount, not exceeding two hundred rupees, as may be demanded by the State Government for meeting any additional expenditure for the said purpose within one month from the date of demand of such deposit: Provided further that where the whole or any part of the amount deposited has (Downloaded on 12/11/2023 at 05:15:46 AM) (14 of 15) [CW-3183/2017] not been expended, it shall be refunded to the lessee within two months from date of the completion of the work of survey and demarcation of the area to be surrendered.
(3) Upon the issuance of the order by the Regional Controller of Mines or the officer authorized by the State Government in this behalf, as the case may be, under sub-
rule (6) of rule 23F of Mineral Conservation and Development Rules, 1988, for forfeiting the sum assured, on non-performance of the measures contained in the approved mine closure plan referred to in sub-rule (1) of rule 23A of Mineral Conservation and Development Rules, 1988 by the lessee, it shall be the responsibility of State Government to realize any letter of credit or bond or any other surety, guarantee provided or obtained as financial assurance for the purpose of performance of protective, reclamation and rehabilitation measures as contained in the approved mine closure plan and shall carry out such measures either by itself, or appoint an agent to do so."
40. This Court finds that the mining lease was in operation for a period of 20 years, i.e; from 02.05.1970 to 01.05.1990 and the period of first renewal came to an end on 01.05.2010. The petitioner did not apply for second renewal by contending that due to the pending litigation the second application for renewal was not required but the same is not sustainable as it does not absolve the petitioner of their obligation to comply with the regulatory requirements to apply for the renewal every time the mining lease expires.
41. This court also observes that the mining lease area encapsulates both mineral Soapstone and Asbestos and it is evident from the record that the mineral asbestos is scheduled (Downloaded on 12/11/2023 at 05:15:46 AM) (15 of 15) [CW-3183/2017] mineral and hence the renewal of mining lease was rejected vide order dated 20.07.1993.
42. This court finds that on 17.03.2023 this court had passed an order for passing a speaking order in regard to the renewal of mining lease for the mineral Soapstone while keeping into consideration the order dated 10.12.2015 passed by this court and also keeping into consideration Annexure 5. Thereafter, the respondent authorities after affording the petitioner a reasonable opportunity of hearing passed the order dated 13.12.2016 rejecting the application for renewal of the mining lease in question for mineral Soapstone. As far as consideration of Annexure 5 is concerned as directed by this Court, the respondent have passed order dated 12.05.2023 on the ground that earlier the surrender of the mining lease was permissible under the provisions, i.e; the Rules of 1960 which stood amended and presently the Rules of 2016 are in vogue in which there is no provision for surrender of mining lease. Thus, in view of the fact that in light of the earlier provisions in the Rules of 1960, the permission to surrender the mining lease could be given, however, the Rules of 2016 do not have a similar provision and in the absence of the rules, the petitioner cannot be extended the similar treatment as extended by the respondent by way of Annex.5.
43. The writ petition being devoid of merit is hereby dismissed and all pending applications are also dismissed.
(DR. NUPUR BHATI),J
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