Jharkhand High Court
Anil Khirwal vs The Union Of India Through The Ministry ... on 28 April, 2016
Equivalent citations: 2016 (3) AJR 442
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (C) No. 2207 of 2016
Anil Khirwal ..... Petitioner
vs.
1. The Union of India through the Ministry of Mines and Steel,
Sashtri Bhawan, New Delhi
2. The State of Jharkhand through the Principal
Secretary, Department of Mines and Geology,
Government of Jharkhand, Ranchi
3. The Joint Secretary, Department of Mines and Geology,
Government of Jharkhand, Ranchi
4. The Deputy Commissioner, West Singhbhum, Chaibasa
5. The District Mining Officer, West Singhbhum, Chaibasa
6. The Assistant Mining Officer, West Singhbhum, Chaibasa
.....Respondents.
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
For the Petitioner : M/s. K. Venugopal, Sr. Adv.
Indrajit Sinha & Krishna Ray, Advs.
For the Resp State : Mr. Ajit Kumar, A.A.G.
For the Resp - UOI : M/s. Rajiv Sinha, ASGI
Niraj Kumar
2/28.4.2016 Mining lease of Iron Ore was granted in favour of Sardar Fauza Singh over an area of 22.662 Ha. of Mauza Balijore, Bandburu P.S Noamundi in the district of West Singhbhum with effect from 1st May, 1972 for a period of 30 years till 30th April, 2002 (Annexure1). Lease was transferred in favour of present petitioner on 14th July, 1983 (Annexure2 & 2/1). Petitioner surrendered about 3.331 Hects. of lease area on 11th June, 1997 (Annexure3). Before expiry of statutory time of one year petitioner applied for renewal for a period of 20 years on 18th April, 2001, which has remained pending till Mines & Minerals (Developments and Regulation) Amendment Act, 2015 was enacted. The MMRD (Amendment) Ordinance, 2015 had came into force with effect from 12th January, 2015. The Mines and Minerals (Development and Regulation) Amendment Act, 2015 was passed by the Parliament on 12th July, 2015. Prior to that on 18th July, 2014, Rule 24A(6) of Mineral and Concessions Rules, 1960 were amended which provided for deemed extension for a period of two years with effect from 18th July, 2014 of such cases pending for first renewal of lease deed where renewal application had been made within time. 2. Petitioner's application for renewal of such lease has been rejected vide Annexure18 dated 1st April, 2016 contained in Memo no. 883/M passed by the Department of Mines & Geology, Government of Jharkhand. Consequent thereto, petitioner has been asked to hand over possession of the lease area to Mines Department vide letter no. 446/M dated 5th April, 2016 (Annexure19) issued by the Deputy Commissioner, West Singhbhum, Chaibasa, failing which steps would be taken to take possession of the lease hold property by the State Authorities.
On 18th April, 2016, the said lease area has been made open for public auction by Gazette Notification issued by District Mining Officer, Chaibasa Learned senior counsel for the petitioner, Mr. K. Venugopal submits that the impugned order rejecting the application of the petitioner for renewal of lease, is bad in law on the following grounds:
(i) Section 4(A)(1) of Mines and Minerals (Development and Regulation) Amendment Act, 1957 confers power on the Central Government which may request the State Government to make premature termination of such mining lease. There is no such request or direction of the Central Government to the State Government in the instant case.
(ii) Relying upon the recent judgment rendered by the Hon'ble Supreme Court in Writ Petition (Civil) No. 114/2014 (Common Cause vs. Union of India & others) and Writ Petition (Civil) No. 194/2014 (Prafulla Samantra and another vs. Union of India & others) dated 04.04.2016, it is submitted that the petitioner's original lease would be deemed to be extended for a period of 50 years i.e. up to 30.04.2022. Sub Paragraphiv and vi of Paragraph32 of the judgment has been relied upon, which is quoted hereunder:
" Based on the considerations recorded above, we summarise our conclusions as under:
(iv) A leaseholder who has moved an application for "first renewal" of the original mining lease, at least twelve months before the original lease was due to expire, and such application has not been rejected, will be considered to be a valid leaseholder having a subsisting right to carry on mining operations, till the expiry of two years after 18.7.2014, i.e., up to 17.7.2016, as is apparent from a conjoint reading of the 3. unamended and amended Rule 24A of the Mineral Concession Rules. Such leaseholder would have the benefit of subsections (5) and (6) of Section 8A of the amended MMDR Act.
(vi) Consequent upon the amendment of Section 8A of the MMDR Act, the regime introduced through subsections (5) and (6) thereof, provides for three contingencies where benefits have been extended to leaseholders whose lease period had earlier been extended by a renewal. Firstly, for a leaseholder whose renewal period had expired before 12.1.2015, and the leaseholder had moved an application for renewal at least twelve months before the leaseholder's existing lease was due to expire, and whose application has not been considered and rejected, the lease period would stand extended up to 31.3.2030/31.3.2020 (in the case of captive/non captive mines, respectively). Additionally, a leaseholder whose period of renewal would expire after 12.1.2015, but before 31.3.2030/31.3.2020, the lease period would stand extended up to 31.3.2030/31.3.2020 (in the case of captive/noncaptive mines, respectively). Secondly, where the renewal of the mining lease already extends to a period beyond 31.3.2030/31.3.2020 (in the case of captive/non captive mines, respectively), the lease period of such leaseholders, would continue up to the actual period contemplated by the renewal order. Thirdly, a leaseholder would have the benefit of treating the original lease period as of fifty years. Accordingly, even during the renewal period, if the period of the mining lease would get extended (beyond the renewal period) by treating the original lease as of fifty years, the leaseholder would be entitled to such benefit.
Out of the above three contingencies provided under subsections (5) and (6) of Section 8A, the contingency as would extend the lease period farthest, would ensure to the benefit of the leaseholder."
Learned senior counsel for the petitioner has submitted that all statutory clearances have been obtained by the petitioner. Environmental clearance has been granted on 13th April, 2011 by the Ministry of Environment and Forests vide Annexure9 modified on 15th March, 2013 vide Annexure9/1. The Forest Department has granted Temporary Working Permission on 6th February, 2004 vide Annexure10. It is further submitted that forest clearance has been granted on 3rd August, 2009 vide Annexure10/1. Petitioner has also obtained the certification of competent authority under Schedule Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 on 15th February, 2012 and 20th January, 2014 vide Annexures11 and 11/1. Jharkhand State Pollution Control Board had also granted consentto operate on 27th February, 2015 vide Annexure12, which has expired on 31st December, 2015. Petitioner has already made an application on 29th August, 2014 120 days before expiry as per the provisions of Section 21 of Air (Prevention & Control of Pollution) Act, 1981 as also under Section 4. 25 of the Water ( Prevention & Control of Pollution) Act, 1974.
Learned senior counsel has also made categorical answer to the findings contained in the order of rejection at Annexure18 relating to alleged violation of terms and conditions of lease and noncompliance of provisions of lease deed etc. It is submitted that once the lessee has obtained the forest clearance, environmental clearance and approval of mining plan from IBM, he is entitled to work the mines. The contention in relation to Rule 24A(6) of Mineral and Concessions Rules, 1960 has also been categorical denied by the petitioner stating that exploration has been duly reported to Indian Bureau of Mines and otherwise it would not be applicable since no supplementary deed was executed as per Government of India circular dated 23rd December, 2010. In respect of finding relating to lapse of lease, learned counsel has relied upon the judgment rendered by the Apex Court in the case of Common Cause(Supra) stating that there being no rejection of such application prior to 12th January, 2015 or declaration by the State Government to that effect the same would not lead to automatic lapse of the lease. In respect of observations recorded by Hon'ble Mr. Justice M. B. Shah's report, learned counsel has relied upon the report of Task Force constituted by the DGPS (Annexures : 22 ) dated 20th February, 2014. The report submitted by the Task Force comprising of Assistant Mining Officer, Chaibasa, Jharkhand, Assistant Controller of Mines, IBM, Kolkata and Senior Assistant Controller of Mines (NR) IBM, Nagpur has clearly found that there are no illegal mining operations observed in and around the lease area. The allegation relating to non compliance of the provisions such as Clause 2, 3, 11C of part VII of Form K (Lease Deed) have also not found to be tenable in the same report. Learned counsel for the petitioner has also clarified from the enclosed Annexures that the difference in the production figures for different periods shown by IBM and DGM is on account of different format in which it is to be supplied. The petitionerlessee has mined about 2,98,000 metric tonnes of Iron Ore approximately over which royalty has been paid. There 5. are no outstanding demand against the petitioner.
In the background of the relevant facts pleaded, learned senior counsel for the petitioner has prayed for an interim protection in the manner allowed in the case of M/s. Shah Brothers Vs. Union of India in W. P. (C) No. 2027 of 2016 vide order dated 21st April, 2016 by this Court. It is submitted that in the said case also the matter was of first renewal and the application for renewal had not been rejected before 12th January, 2015. The petitioner, herein, has also been granted the statutory clearances/ approval and consent to operate. It has not violated any of the terms and conditions of the lease. The petitioner is actively working the mine and he would suffer irreparably, if an interim protection in the manner granted in the case of M/s. Shah Brothers is not extended to present petitioner as he has a prima facie case and balance of convenience also lies in his favour. In fact, it is submitted that the orders of rejection of renewal application of the petitioner, M/s. Shah Brothers and this petitioner are also of the same date and successive memo numbers .
Learned counsel for the State has prayed for time to respond to the contents of the writ petition.
I have considered the submission of the parties in the light of the relevant material facts pleaded. Having regard to the position in law now declared by the Apex Court in the case of Common Cause (Supra) on 4th April, 2016 the impugned order dated 01.04.2016 rejecting the application for renewal after coming into force of Mines and Minerals (Development and Regulation) Amendment Act, 2015 appears to be wholly out of place as has also been fairly submitted by learned A.A.G in the case of M/s. Shah Brothers recorded in the order dated 21st April, 2016 by this Court. The provisions of Amendment Act, 2015 specifically Section 8(A), as interpreted in the judgment rendered in the case of Common Cause (Supra) by the Apex Court, para 32 thereof also lead to a prima facie view that the petitioner being an applicant for first renewal and having made its application on 18.4.2001 within statutory time prior to expiry of the 6. original lease is entitled to treat its lease to continue for a period of 50 years from the date of original lease. Petitioner has categorically asserted through averments made in the writ petition and supporting documents enclosed that all statutory clearance have been obtained by it and there are no violation of the condition of the lease deed. Petitioner has therefore made out a prima facie case and is entitled to an interim protection.
In such circumstances, the impugned orders dated 1st April, 2016 (Annexure18) and 5th April, 2016 (Annexure19) shall remain stayed till the next date of hearing.
Counsel for the respondent has prayed for short time to seek instruction on the averments made in the writ petition and also on the assertion of the petitioner relating to compliance of all statutory clearances.
As prayed for, list this case accordingly on 5th May, 2016.
(Aparesh Kumar Singh,J) jk