D. Shankarlal Sharma vs The Honble Mining Tribunal / ...
2022 Latest Caselaw 628 AP

              HON'BLE SRI JUSTICE U.DURGA PRASAD RAO

                       Writ Petition No.34068 of 2011

ORDER:

The petitioner prays for writ of mandamus declaring the order

No.248/2011, dated 29.03.2011 passed by the 1st respondent in the statutory

revision application No.02(32)/2008-RC.II filed by the 7th respondent

challenging the proceedings in Memo No.7084/M.III(2)/2008-4, dated

07.08.2008 rejecting his mining lease application for manganese ore for an

extent of 49.60 hectares in Sy.No.131 of Chinabantupalli Village,

Merakamudidam Mandal, Vizianagaram District as illegal, arbitrary and

violative of provisions of Mines and Minerals (Development and Regulation)

Act, 1957 (for short 'MMDR Act').

2. Petitioner's case is thus:

(a) Petitioner made mining lease application dated 24.09.2004 to the 3rd

respondent through the 6th respondent for grant of lease of Manganese Ore in

an extent of Ac 44.60 cents in Sy.No.131 of Chinabantupalli Village,

Merakamudidam Mandal, Vizianagaram District. The 6th respondent after

obtaining classification and availability-cum-No Objection Certificate from

the Mandal Revenue Officer, inspected and surveyed the land in the presence

of the petitioner. The petitioner has given consent in writing for a reduced

area of 17.00 hectares for grant of mining lease in his favour. Thereafter

basing on the recommendation of respondent Nos.4 and 6, the 3rd respondent

issued Memo No.7084/M.III(2)/2006-6, dated 07.08.2008 informing the

petitioner that the Government in principle agreed to grant mining lease for

manganese ore in an extent of 17.00 hectares in Sy.No.131 of Chinabantupalli

Village, Merakamudidam Mandal, Vizianagaram District in favour of the

petitioner for a period of 20 years subject to prior approval of the

Government of India i.e., the 2nd respondent herein.

(b) Aggrieved by the above proceedings, the 7th respondent filed a

statutory revision application dated 01.10.2008 under Rule-54 of Mineral

Concession Rules, 1960 before the 1st respondent. Petitioner was made as a

party in the said revision petition and the petitioner filed his counter before

the 1st respondent. The 1st respondent after hearing both parties passed

impugned final orders No.248/2011, dated 29.03.2011 and allowed the

revision application by setting aside the order dated 07.08.2008 of the 3rd

respondent. Challenging the said revisional order, the instant writ petition is

filed by the petitioner.

3. The 6th respondent filed counter. While almost agreeing with the

petitioner's case, it is averred by the 6th respondent that the Manganese

bearing areas were de-reserved under G.O.Ms.No.345, Industries and

Commerce (Mines.I) Department, dated 27.08.1994 and ten years thereafter

i.e., in the year 2004 mining lease application was filed and hence question of

consideration of all the applications together as if they were received on the

same day does not arise. Further, the application of the 7th respondent was

already examined by the Department of Mines & Geology and negatived. On

the other hand, the Mandal Revenue Officer, Merakamudidam has issued No

Objection Certificate in favour of the writ petitioner who was the first

applicant over the subject area and the Gram Panchayat also passed resolution

for grant of mining lease in favour of the writ petitioner. Added to above, the

7th respondent Company failed to submit any documentary evidence about

their activities. Therefore, the lease application of the 7th respondent was

rightly rejected. It is further stated that the area applied by the 7th respondent

is completely overlapping with the area applied by the writ petitioner. Above

all, the writ petitioner has been holding one mining lease for manganese at

Sy.No.259/1, 260/2, 261/1 to 7 of Garbham Village, Merakamudidam

Mandal, Vizianagaram District for the period from 13.03.2008 to 12.03.2028.

Whereas the 7th respondent is holding 9 Mining Leases for Manganese at

different places narrated in the counter. It is thus prayed to pass an

appropriate orders.

4. The 7th respondent filed counter contending as follows:

(a) The 7th respondent is a company which is a largest exporter of

Manganese Iron Ore from Visakhapatnam port. It is involved in carrying on

mining activities in the lands obtained on lease from the Government. It has

applied for grant of mining lease over an extent of Ac.49.60 cents in

Sy.No.131 of Chinabantupalli Village, Vizianagaram District through mining

lease application dated 20.10.2004. The said area was notified as available

for re-grant under Rule-59 of Mineral Concession Rules, 1960 vide

G.O.Ms.No.345, dated 27.08.1994 after Visakhapatnam Steel Plant expressed

its inability to utilize the low grade manganese and high phosphorus ores

available there. Except the petitioner and 7th respondent, none others have

made applications. Since the petitioner and the 7th respondent applied for the

same area, the Government vide Memo dated 19.06.2008 issued show cause

notice to the 7th respondent as to why his application should not be rejected.

This respondent submitted detailed explanation contending inter alia that its

application deserves consideration as the company has rich experience of

about 45 years in Manganese Mining Operations; it has the technical know-

how and also financial capacity to develop the mines and the company is

earning huge foreign exchange to the Country. It has also submitted that it is

entitled to preferential right over the writ petitioner as per Section 11(3) of

MMDR Act. Further, referring to order in W.P.No.19861 of 2005, dated

15.11.2007, the 7th respondent pointed out that in respect of the areas which

were earlier reserved and later de-notified, all applications filed even on

different dates should be treated as filed on the same day and claims should

be decided as per Section 11 of MMDR Act. However, the 3rd respondent on

an erroneous consideration of the matter rejected the application of the 7th

respondent. Challenging the same, it has filed the revision before the 1st

respondent. After giving an opportunity to all the parties the 1st respondent

has allowed the revision application by setting aside the orders of the State

Government. The contention of the writ petitioner that principle 'first come

first serve' should be observed is not tenable. Nobody has come forward in

the ten years after issuance of de-notification by the Government. The order

passed by the 1st respondent is just and legal and hence the writ petition is

liable to be dismissed.

5. The writ petitioner filed reply affidavit denouncing the averments in

the counter of the 7th respondent.

6. Heard learned counsel for the petitioner. Sri Pannala Srinivas, learned

Standing Counsel Sri B. Sudhakar Reddy representing respondent Nos.1, 2

and 5, learned Government Pleader for Mines and Geology representing

respondent Nos.3, 4 and 6 and Sri A. Veera Swamy representing respondent

No.7.

7. The counsel on both sides, reiterated their pleadings in their respective

arguments. Learned counsel for the petitioner would argue that the 1st

respondent grossly erred in holding that Section 11(2) of MMDR Act is

applicable in the instant case and thereby priority need not be given to the

writ petitioner though his application was earlier in point of time than the

application filed by the 7th respondent. He would further argue that the 1st

respondent committed error in relying upon the judgment in W.P.No.19861

of 2005, dated 15.11.2007 to come to the above conclusion. Learned

counsel strenuously argued that as per the decision in Sandur Manganese

and Iron Ores Ltd v. State of Karnataka1 of Hon'ble Apex Court, Section

11(2) of MMDR Act applies to the mining lease applications of virgin lands

and not other lands. However, in the instant case the lands applied for lease

by the petitioner as well as the 7th respondent are not virgin lands and it was

reserved by the State Government for some time for public sector companies

and later de-reserved. In that view, he would argue, Section 11(4), instead of

Section 11(2) of the MMDR Act will apply in the instant case and

considering the same the 1st respondent ought to have dismissed the revision

application holding that the writ petitioner alone deserves for lease since his

application was prior in point of time. He thus prayed to allow the writ

petition and consequently set aside the order of the 1st respondent and confirm

MANU/SC/0695/2010 = (2010) 13 SCC 1

the order dated 07.08.2008 of the 3rd respondent. Learned counsel for official

respondents in their argument towed the line of the writ petitioner.

8. On the other hand, learned counsel for 7th respondent Sri A. Veera

Swamy while supporting the impugned order argued that irrespective of

whether the provision under Section 11(2) or 11(4) of MMDR Act is applied,

the writ petitioner cannot claim any primacy over the 7th respondent merely

on the ground that his application is prior to that of the 7th respondent. On the

other hand all the applications filed subsequent to the notification shall be

considered simultaneously as if they were all received on the same day and

the authority shall consider the merits and demerits of each application in

terms of Section 11(3) of the MMDR Act and grant lease in favour of the

meritorious applicant. He would argue that the impugned order reiterated the

same procedure and therefore there is no legal flaw in it. He thus prayed to

dismiss the writ petition.

9. The point for consideration is whether there are merits in the writ

petition to allow ?

10. I gave my anxious consideration to the above respective arguments.

The subject mineral in this case is Manganese ore. It is not in dispute that

Manganese ore is a major mineral and therefore the provisions of Mines and

Minerals (Regulation and Development) Act, 1957 will be applicable for the

purpose of undertaking reconnaissance, prospecting and mining operations of

this mineral.

11. The subject mineral is deposited in the land covered by Sy.No.131 of

Chinabantupalli Village erstwhile Cheepurupalli Taluk in Srikakulam District

and now after formation of Vizianagaram District in Merakamudidam

Mandal, Vizianagaram District. The chronology of events would show that

earlier the Government of Andhra Pradesh vide G.O.Ms.No.5 Industries and

Commerce (Mines-IV) Department, dated 05.01.1978 issued a Gazette

Notification stating that pursuant to the industrial policy and the resolution of

the Government of India dated 30.04.1956, the Government of Andhra

Pradesh was declaring that Manganese ore bearing areas in the villages

mentioned in the Annexure appended to the G.O were reserved for exclusive

exploitation in public sector with immediate effect. In Block No.III (65N/7),

the Village Chinabantupalli of Cheepurupalli Taluk in Srikakulam District

was also mentioned in the annexure, meaning thereby, the Manganese Ore

deposited in that area was reserved for exploitation of the public sector.

(a) Be that it may, the Government have issued G.O.Ms.No.345

Industries and Commerce (Mines.I) Department, dated 27.08.1994 in terms of

Rule 59(1)(e) of Mineral Concessions Rules, 1960 stating that in partial

modification of the earlier notification i.e., G.O.Ms.No.5, the Government

declares that the Manganese Ore bearing areas of Srikakulam and

Vizianagaram Districts as specified in the annexure are de-reserved and shall

be available for grant, after expiry of 30 days from the date of publication of

the notification. The Chinabantupalli Village was also found place in the

annexure appended to the said G.O which implies that Manganese Ore

deposited in that area was de-reserved and made available for grant. The

Gazette publication was made on 05.09.1994.

12. While things stood thus, the writ petitioner filed mining lease

application dated 24.09.2004 to the 3rd respondent through the 6th respondent

for grant of mining lease of the Manganese Ore over an extent of Ac 44.60

cents in Sy.No.131 of Chinabantupalli Village, Merakamudidam Mandal,

Vizianagaram District vide the copy of the lease application filed along with

material papers enclosed to the writ petition. The 7th respondent also applied

for grant of mining lease of Manganese Ore over an extent of Ac.49.60 cents

in Sy.No.131 of Chinabantupalli Village, Merakamudidam Mandal,

Vizianagaram District as per the lease application dated 20.10.2004. Thus,

both of them applied for same area and they are overlapping with each other.

In this backdrop of the facts, the question is what are the provisions of the law

applicable for deciding the applications.

13. As already stated supra, since the subject mineral is Manganese, the

provisions of MMDR Act as they stood on the date of applications filed by

both parties would apply. Manganese Ore is a mineral specified in Part-C of

First Schedule to the MMDR Act. The MMDR Act was amended by

Amendment Act 38 of 1999 w.e.f 18.12.1999. Again the Act was amended

by Amendment Act 10 of 2015 w.e.f 12.01.2015. As already stated supra, in

the instant case since the de-reservation notification was issued in the year

1994 and mining lease applications were filed by the parties in the year 2004,

the provisions of the MMDR Act as they stood in the year 2004 would apply

to the case on hand.

14. As per Section 4(1) of the MMDR Act, no person shall undertake any

reconnaissance, prospecting or mining operations in any area except under

and in accordance with the terms and conditions of reconnaissance permit, a

prospecting license or of a mining lease granted under the Act and Rules

made thereunder. Sub Section 2 of Section 4 of MMDR Act further clarifies

that no reconnaissance permit, prospecting license or mining lease shall be

granted otherwise than in accordance with the provisions of this Act and

Rules made thereunder. Then Section 5 is another important provisions

which is germane for our purpose. Section 5 Sub Section 1 of the MMDR

Act provides that in respect of any mineral specified in the First Schedule, no

reconnaissance permit, prospecting license or mining lease shall be granted

except with the previous approval of the Central Government.

15. Then Section-10 prescribed procedure for making an application. This

section lays down that an application for a reconnaissance permit, prospecting

license or mining lease in respect of any land in which the minerals vest in

the Government, shall be made to the State Government concern in the

prescribed form accompanied by prescribed fee and on receiving such

application the State Government having regard to the provisions of this Act

and Rules made thereunder either grant or refuse to grant the permit license

or lease.

16. Then having regard to the nature of the controversy involved in this

case, it is apposite at this juncture to look into the Section 11 as it stood prior

to its amendment in the year 2015. For easy comprehension Section 11 is

extracted below.

"11. Preferential right of certain persons:-

(1) Where a reconnaissance permit or prospecting licence has been granted in respect of any land, the permit holder or the licensee shall have a preferential right for obtaining a prospecting licence or mining lease, as the case may be, in respect of that land over any other person:

Provided that the State Government is satisfied that the permit holder or the licensee, as the case may be,--

(a) has undertaken reconnaissance operations or prospecting operations, as the case may be, to establish mineral resources in such land;

(b) has not committed any breach of the terms and conditions of the reconnaissance permit or the prospecting licence;

(c) has not become ineligible under the provisions of this Act; and

(d) has not failed to apply for grant of prospecting licence or mining lease, as the case may be, within three months after the expiry of reconnaissance permit or prospecting licence, as the case may be, or within such further period, as may be extended by the said Government.

(2) Subject to the provisions of sub-section (1), where the State Government has not notified in the Official Gazette the area for grant of reconnaissance permit or prospecting licence or mining lease, as the case may be, and two or more persons have applied for a reconnaissance permit, prospecting licence or a mining lease in respect of any land in such area, the applicant whose application was received earlier, shall have the preferential right to be considered for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, over the applicant whose application was received later:

Provided that where an area is available for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, and the State Government has invited applications by notification in the Official Gazette for grant of such permit, licence or lease, all the applications received during the period specified in such notification and the applications which had been received prior to the publication of such notification in respect of the lands within such area and had not been disposed of, shall be deemed to have been received on the same day for the purposes of assigning priority under this sub-section:

Provided further that where any such applications are received on the same day, the State Government, after taking into consideration the matter specified in sub-section (3), may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be, to such one of the applicants as it may deem fit.

(3) The matters referred to in sub-section (2) are the following:--

(a) any special knowledge of, or experience in, reconnaissance operations, prospecting operations or mining operations, as the case may be, possessed by the applicant;

(b) the financial resources of the applicant;

(c) the nature and quality of the technical staff employed or to be employed by the applicant;

(d) the investment which the applicant proposes to make in the mines and in the industry based on the minerals;

(e) such other matters as may be prescribed.

(4) Subject to the provisions of sub-section (1), where the State Government notifies in the Official Gazette an area for grant of reconnaissance permit,

prospecting licence or mining lease, as the case may be, all the applications received during the period as specified in such notification, which shall not be less than thirty days, shall be considered simultaneously as if all such applications have been received on the same day and the State Government, after taking into consideration the matters specified in sub-section (3), may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be, to such one of the applicants as it may deem fit.

(5) Notwithstanding anything contained in sub-section (2), but subject to the provisions of sub-section (1), the State Government may, for any special reasons to be recorded, grant a reconnaissance permit, prospecting licence or mining lease, as the case may be, to an applicant whose application was received later in preference to an applicant whose application was received earlier:

....."

17. In the context of evaluating the priorities of the applications, Section-

11 specifies three stages i.e., 11(1), 11(2) and 11(4) stages. Section 11(1)

stage occurs when the land in which minerals which deposited is a virgin land

in respect of which no notification was issued by the Government. At the

stage where the reconnaissance permit or prospecting license has been

granted in favour of an individual in respect of that land, the permit holder or

the licensee shall have a preferential right for obtaining a prospecting license

or mining lease as the case may be in respect of that land over any other

person subject to the conditions enumerated in the proviso. The overriding

character of the priority given to the prospecting licensee or reconnaissance

permit holder is evident from the fact that each of the subsequent sub sections

i.e., Sub Section 2 and Sub Section 4 of Section 11 are made subject to

Section 11(1).

18. Section 11(2) is a stage in respect of land which is a virgin land and no

notification was issued. At that stage, in respect of that land if a person holds

reconnaissance permit or a prospecting license under Section 11(1), that

permit holder or licensee will have preference over others for obtaining

prospecting license or mining lease as the case may be. If no such permit

holder or licensee as envisaged under Section 11(1) is available and only

fresh applications are filed in respect of the virgin land prior to notification,

then Section 11(2) says that the applicant whose application was received

earlier shall have the preferential right to be considered for grant of

reconnaissance permit, prospecting license or mining lease as the case may be

over the subsequent applicants.

Then proviso 2 Section 11(2) says that in respect of a virgin land if the

State Government invites applications by notification in official Gazette and

some applications are received subsequent to Gazette Notification and if

some applications were already received prior to such Gazette Notification,

then all the applications shall be deemed to have been received on the same

day for the purpose of assigning priority. In such a case the State

Government shall consider the merit of the applicants in terms of Section

11(3) and grant reconnaissance permit, prospecting license or mining lease as

the case may be to one of the applicants.

19. Whereas Section 11(4) is a stage which covers lands specified in Rule

59 of Mineral Concession Rules, 1960. For better appreciation Rule 59 is

extracted below:

"59. Availability of area for regrant to be notified: (1) No area--

a) which was previously held or which is being held under a reconnaissance permit or a prospecting licence or a mining lease; or

b) which has been reserved by the Government or any local authority for any purpose other than mining; or

c) in respect of which the order granting a permit or licence or lease has been revoked under sub-rule (1) of rule 7A or sub-rule (1) of rule 15 or sub-rule (1) of rule 31, as the case may be; or

d) in respect of which a notification has been issued under sub-section (2) or sub-section (4) of section 17; or

e) which has been reserved by the State Government or under section 17A of the Act, shall be available for grant unless--

i. an entry to the effect that the area is available for grant is made in the register referred to in sub-rule (2) of rule 7D or sub-rule (2) of rule 21 or sub-rule (2) of rule 40, as the case may be; and ii. the availability of the area for grant is notified in the Official Gazette and specifying a date (being a date not earlier than thirty days from the date of the publication of such notification in the Official Gazette) from which such area shall be available for grant:

Provided that nothing in this rule shall apply to the renewal of a lease in favour of the original lessee or his legal heirs notwithstanding the fact that the lease has already expired:

Provided further that where an area reserved under rule 58 or under section 17A of the Act is proposed to be granted to a Government company, no notification under clause (ii) shall be required to be issued:

Provided also that where an area held under a reconnaissance permit or a prospecting licence, as the case may be, is granted in terms of sub-section (1) of section 11, no notification under clause (ii) shall be required to be issued.

(2) The Central Government may, for reasons to be recorded in writing, relax the provisions of sub-rule (1) in any special case.

20. So far as landed area specified in Rule 59 is concerned, the grant of

reconnaissance permit, prospecting license or mining lease shall be made

only after issuing of notification in the official Gazette and such grant is

covered by Section 11(4) r/w Rule 59. Section 11(4) says that in respect of

such areas enumerated in Rule 59, after issuing of Gazette Notifications any

applications are received, all such applications received during the period

specified in such notifications shall be considered simultaneously as if they

were received on the same day and after taking into consideration the matters

specified in the Section 11(3), reconnaissance permit, prospecting license or

mining lease has to be granted to one of the applicants. The above are the

different stages depicted in Section 11 of the Act. The distinction among

those three stages has been delineated by Hon'ble Apex Court in Sandur's

case (1 supra) as follows:

"31. In order to determine whether it is Section 11(4) or the first proviso to Section 11(2), it is relevant to understand the intention of the legislature in enacting Section 11 of the MMDR Act and Rules 59 and 60 of MC Rules as being part of single statutory scheme governing the grant of reconnaissance permits, prospecting licences and mining leases. The amendments to MMDR Act in 1999 which inserted and re-drafted Section 11 had their origin in the Report of the Committee to Review the Existing Laws and Procedure for Regulation and Development of Minerals set up by the Ministry of Mines, Government of India, submitted in January, 1998. We are concerned about para 2.1.21 of the Report which reads as under:

...The concept of first-come, first-serve has become necessary in view of the fact that the Act does not provide for inviting applications through advertisement for grant of PL/ML in respect of virgin areas. No doubt, there is provision in Rule 59 of MCR for advertisement of an area earlier held under PL/ML with provision for relaxation." In this background, the Committee recommended the introduction of the proviso to Section 11(2) permitting calling for applications by way of a notification. There is a distinction between virgin areas and areas covered under Rule 59 and Section 11(2) ought to be interpreted to cover virgin areas alone.

If we consider Section 11 with the aid of the said Report, it makes it clear that Section 11(1) provides preferential right to the holder of reconnaissance permits or a prospecting licencee who has identified mineral resources in the area allotted to him for grant of a mining lease, subject to certain conditions specified in the proviso appended thereto. The over-riding character of the priority given to the successful prospecting licencee or reconnaissance permit-holder is clear from the fact that each of the subsequent Sub-sections in Section 11 is made subject to Section 11(1).

32. It is also clear that the main provision in Section 11(2) gives preference to a prior applicant for grant of reconnaissance permit, prospecting licence or mining lease over later applicants where the State Government has not issued any notification. The analysis of the Report makes it clear that the main provision in Section 11(2) applies to "virgin areas". It further makes it clear that to the extent that an area that is previously held or reserved would require a notification for it to become available. The first proviso to Section 11(2) carves out an exception to the preferential right based on priority of applications in point of time referred to in the main provision. It makes it clear that where the State Government subsequently issues a notification inviting applications for grant, the prior and subsequent applications to the notification would be considered as if they were filed on the same day and no priority in order of time would be given. The second proviso requires the State Government to examine the matters set out in Section 11(3) while considering the applications for grant.

xxxx

Accordingly, we are of the view that the notification calling for applications referred to in the first proviso to Section 11(2) applies only to virgin areas.

xxxx

36. We have already quoted Sub-section (4) of Section 11 which contemplates a situation where a notification is issued inviting applications for an area for grant. In contrast to the first proviso to Section 11(2), it

provides that all applications received pursuant to a notification shall be considered simultaneously without assigning any priority in point of time, and after taking into account the matters specified in Section 11(3). Section 11(4), in effect, covers exactly the same field as the first and second proviso to Section 11(2) read along with Section 11(3) with one difference, i.e., unlike the first proviso to Section 11(2), it provides for consideration of only those applications that are made pursuant to the notification and not those made prior to the notification. Notification under Section 11(4) is consistent with Rule 59(1) read with Rule 60 insofar as applications received prior to the notification would not be entertained. The first proviso to Section 11(2) was being added to cover virgin areas, then provided for the addition of Section 11(4), in order to ensure that the notification referred to in Rule 59(1) together with Rule 60 would not render ultra vires the MMDR Act. In view of the same, the contention on behalf of Jindal and Kalyani that the first proviso of Section 11(2) would cover notifications under Rule 59(1) is unacceptable because this would render Section 11(4) otiose and redundant. In J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of U.P. MANU/SC/0287/1960 : AIR 1961 SC 1170 and O.P. Singla and Anr. v. Union of India and Ors. MANU/SC/0350/1984 : (1984) 4 SCC 450, this Court held that a provision in a statute must not be so interpreted as to reduce another provision to a "useless lumber" or a "dead letter". If we accept the said position, it would result in anomalous consequences of rendering Rule 60 ultra vires the first proviso to Section 11(2). In fact, this has been highlighted by the Central Government in their affidavit filed before the High Court.

xxxx

38.We have already extracted Rules 59 and 60 and analysis of those rules confirms the interpretation of Section 11 above and the conclusion that it is Section 11(4) which would apply to a Notification issued under Rule 59(1). Rule 59(1) provides that the categories of areas listed in it including, inter alia, areas that were previously held or being under a mining lease or which has been reserved for exploitation by the State Government or under Section 17A of the Act, shall not be available for grant unless (i) an entry is made in the register and (ii) its availability for grant is notified in the Official Gazette specifying a date not earlier than 30 days from the date of notification. Sub- rule (2) of Rule 59 empowers the Central Government to relax the conditions set out in Rule 59(1) in respect of an area whose availability is required to be notified under Rule 59 if no application is issued or where notification is issued, the 30-days black-out period specified in the notification pursuant to Rule 59(1)(i)(ii) has not expired, shall be deemed to be premature and shall not be entertained. As discussed earlier, Section 11(4) is consistent with Rules 59 and 60 when it provides for consideration only of applications made pursuant to a Notification. On the other hand, the consideration of applications made prior to the Notification, as required by the first proviso to Section 11(2), is clearly inconsistent with Rules 59 and

60. In such circumstances, a harmonious reading of Section 11 with Rules 59 and 60, therefore, mandates an interpretation under which Notifications would be issued under Section 11(4) in the case of categories of areas covered by Rule 59(1). In those circumstances, we are unable to accept the argument of learned senior counsel for Jindal and Kalyani with reference to those provisions.

21. The above jurisprudence makes it abundantly clear that the case on hand

falls within the ambit of Section 11(4) but not Section 11(2) inasmuch as the area

applied for lease was reserved by the Government for a considerable period for the

public sector and later de-reserved by way of Gazette Notification under

G.O.Ms.No.345 Industries and Commerce (Mines.I) Department, dated

27.08.1994 in terms of Rule 59 of Mineral Concession Rules 1960. In

this context when the impugned revision order is perused, it contains

procedural error to the effect that by referring provision under Section

11(2) of MMDR Act, the 1st respondent held that all applications

received are deemed to have been received on the same date and the

State Government's order was not in conformity with Section 11(2) of

MMDR Act. As already stated supra, in the light of the judgment in

Sandur's case (1 supra), the virgin lands alone fall within the ambit of

Section 11(2) of MMDR Act and other lands particularly the land

which has been reserved by the State Government in terms of Rule 59

of Mineral Concession Rules, 1960 will fall within the ambit of Section

11(4) of MMDR Act. Of course, whether a case falls under Section

11(2) or Section 11(4), when once notification is issued, the earlier

application will not get any priority over subsequent application

inasmuch as all the applications shall be deemed to have been received

on the same day and shall be considered simultaneously in terms of

Sub-Section 3 of Section 11 of the MMDR Act. Therefore, while

upholding the impugned revisional order to the extent of setting aside

the State Government's order dated 07.08.2008, however, such setting

aside should be held to be for the reason of its non-conformity with

Section 11(4) of the MMDR Act but not Section 11(2) of the MMDR

Act.

22. In the result, this writ petition is partly allowed and while upholding

the revisional order dated 29.03.2011 passed by the 1st respondent setting

aside the order in Memo No. 7084/M.III(2)/2008-4, dated 07.08.2008 passed

by the 3rd respondent, however, such setting aside is held to be for its non-

conformity with Section 11(4) of the MMDR Act instead of Section 11(2) of

the MMDR Act. Consequently, the official respondents are directed to

consider the application of the writ petitioner, the 7th respondent and all other

applications which were received till today pursuant to the Gazette

Notification vide G.O.Ms.No.345, Industries and Commerce (Mines.I)

Department, dated 27.08.1994 seeking mining lease for an extent of Ac 44.60

cents/ Ac.49.60 cents or part thereof in Sy.No.131 of Chinabantupalli Village,

Merakamudidam Mandal, Vizianagaram District and scrutinize them in terms

of Section 11(3) of the MMDR Act and pass an appropriate order in

accordance with governing law and rules expeditiously but not later than six

(6) weeks from the date of receipt of a copy of this order. No costs.

As a sequel, interlocutory applications, if any, pending for

consideration shall stand closed.

_________________________ U.DURGA PRASAD RAO, J

04.02.2022 krk

THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

W.P No.34068 of 2011

04th February, 2022 krk