Bombay High Court
M/S Ajanta Minerals, Through ... vs The State Of Maharashtra, Through ... on 25 March, 2021
Bench: S.B. Shukre, Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CIVIL WRIT PETITION NO.7128/2016
PETITIONER : M/s Ajanta Minerals, a registered Partnership
firm, bearing Registration No.NGP-10960/
2008-09, through its Managing Partner :
Shri Rajendra Purushottam Tank,
aged 52 years, Registered office at 16,
Indira Devi Town, Wathoda, Nagpur.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra, through
its Secretary, Department of
Industries, Energy and Labour,
Mantralaya, Mumbai 400 032.
INTERVENER 2. Gulam Ashi S/o Daud Khan Pathan
Aged about 49 years, Occu.
Proprietor Ajanta Minerals, R/o
Ambedkar Ward, Tah. Kurkheda,
Distt. Gadchiroli - 441209.
(Added as per court's order Dt. 22.1.18)
(Amendment Carried out as per
Court's order dtd. 22/01/18)
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Mr. Ram S. Parsodkar, Advocate for petitioner
Mr. Neeraj R. Patil, AGP for respondent no.1
Mr. Arjun Vinod Bobde, Advocate with Mr. Sarthak Bhatia with Ms Shubhangi
Ajay Jadhao and Ms Sarina Shaikh, Advocates for respondent no.2
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CORAM : SUNIL B. SHUKRE AND
AVINASH G. GHAROTE, JJ.
Judgment reserved on : 09/03/2021
Judgment pronounced on : 25/03/2021
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J U D G M E N T : (PER : AVINASH G. GHAROTE, J.)
1. The petition as initially filed, sought a direction to the
respondent no.1 to take a decision forthwith in respect of grant of
mining lease and its execution before 11/1/2017 in favour of the
petitioner - M/s Ajanta Minerals, a registered partnership Firm. The
proceedings before the State Government came to be decided by the
impugned order dated 8/6/2017, whereby, the Minister Industries,
Mining State of Maharashtra, in exercise of the power conferred
upon the State Government by Section 10-A (2) (c) of the Mines
and Minerals (Development and Regulation) Act, 1957 (for short,
"The MMDR Act, 1957, hereinafter), and Rule 8 (2) of the Minerals
(Other Than Atomic And Hydrocarbons Energy Minerals)
Concession Rules, 2016 (for short, "the MC Rules, 2016",
hereinafter), has decided that M/s Ajanta Minerals a proprietary
Firm, is entitled for grant of mining lease over an area of 65
hectares in village Sohale, Tq. Korchi, District Gadchiroli, subject to
the result of the present petition, consequent to which the petition
has been amended to challenge the order dated 8/6/2017. Further
direction has been sought to conduct an enquiry through the CID to
investigate in respect of prospecting license of M/s Ajanta Minerals,
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dated 10/10/2005, which is claimed to be in custody of the
respondent no.2.
2. The following position is not disputed :-
(A) That M/s Ajanta Minerals, was the proprietary
concern of the respondent no.2, who had applied for its registration
as a proprietary Firm on 13/11/1995, and was accordingly granted
a provisional certificate of registration as a proprietary Firm.
(B) The respondent no.2 as a proprietor of "Ajanta
Minerals" had applied for prospecting license on 9/12/1998.
(C) The Grampanchayat had granted NOC/
permission for mining the land in favour of the proprietorship
concern on 5/10/1999.
(D) All communications till 31/12/2004, in respect of
the prospecting license in favour of M/s Ajanta Minerals a
proprietary concern, were between the various authorities and the
respondent no.2 alone.
3. Mr. Ram Parsodkar, learned Counsel for the petitioner
takes exception to the finding as rendered in the impugned order,
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that it is the proprietary Firm M/s Ajanta Minerals and not a
partnership Firm Ajanta Minerals, who is entitled for grant of
mining lease.
4. It is the contention of Mr. Ram Parsodkar, learned
Counsel for the petitioner, that a partnership came into existence, on
1/8/2005, whereunder, the proprietorship concern M/s Ajanta
Minerals, came to be converted into a partnership Firm, with the
respondent no.2, along with (a) Shri Ghanshyam Wasudeorao Tijare
and (b) Shri Madhukar Sheshraoji Kale as partners, wherein, the
contribution of the respondent no.2, as a share capital to the Firm,
was the prospecting license, issued in the name of the proprietary
concern M/s Ajanta Minerals and the benefits arising out of it. The
said partnership Firm came to be reconstituted on 1/8/2005 by
adding Shri Rajendra Purushottam Tank, as a partner and the
partnership Firm came to be registered on 10/2/2009, with the
Registrar of Firms. The partnership is at Will and is still continuing.
He further submits that in anticipation to the partnership Firm M/s
Ajanta Minerals being formed, a power of attorney, came to be
executed by the respondent no.2, in favour of one of the partners of
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the Firm, namely, Shri Ghanshyam Tijare on 11/12/2004, in
pursuance to which it is contended, that the said attorney, initiated
proceedings, for change of the constitution of the Firm from
proprietorship to partnership, in the prospecting license, with the
authorities under Rule 62 of the Mineral Concession Rules, 1960
(for short "the MC Rules, 1960" hereinafter), for which, he relies
upon the communication dated 22/9/2005, addressed by Shri
Ghanshyam Tijare as an attorney of the respondent no.2, to the
Mining Officer, on the subject of addition of the partner's name in
the agreement/deed/order No.piv-gt/31/05/2361 dated 14/7/2005
prospecting license. The partnership-deed as well as power of
attorney, were enclosed with this communication. It was also
mentioned that the reference numbers Ajanta Minerals dated
8/9/2005 and 18/9/2005, which were wrongly submitted, be
assumed to be cancelled. It was further mentioned, that the letter
dated 8/8/2005 by the DGM in para 5 had stated that the lease-
deed agreement, includes all the names of the partners which are
necessary to be added in the lease-deed agreement Form No.F of the
prospecting license under the MC Rules, 2016 (Rule No.15
Sub-Rule 2). This communication is signed by Shri Ghanshyam
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Tijare, as the power of attorney of the respondent no.2. He further
invites our attention to the Form-I dated 25/4/2006 to contend, that
in the said Form-I, the status of the applicant is shown as
partnership Firm in existence w.e.f. 1/4/2005, which was notarized
on 19/12/2005 with the above named persons, shown as partners.
According to him, this form which is dated as 7/4/2006 on the last
page is signed by the present respondent no.2 and therefore the
same would amount to an admission that the mining lease now
ought to be considered to be executed in name of the partnership
Firm. He submits that this document has been received by the
petitioner under the Right to Information Act and therefore, is an
authentic document. Learned Counsel further invites our attention
to the communication dated 3/12/2010, issued by the Regional
Controller of Mines, addressed to M/s Ajanta Minerals, on the
subject of approval of mining plan, whereby approval has been
accorded, in the name of M/s Ajanta Minerals, a partnership Firm
and not a proprietary concern of the respondent no.2. He further
places reliance upon the communication dated 1/8/2005 by the
Mineral Officer, and the Model Form of prospecting license, Form-F
annexed thereto to contend that the same, was in the name of the
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Firm as indicated from the first page of the Form-F, which recorded
the status of M/s Ajanta Minerals as partnership Firm registered
under the Indian Partnership Act, 1932. He further submits that the
Model Form-F was accepted by the Mining Officer. He further draws
our attention to the communication dated 14/7/2005, issued by the
Directorate of Geology and Mining upon the subject of grant of
prospecting license to M/s Ajanta Minerals, enclosing the order
granting the prospecting license and contends that the same also
was issued to the partnership Firm and not to the proprietary
concern of the respondent no.2. He further submits, that the consent
of the department for change of constitution of the Firm is not
required, as once an application under Rule 62 of the MC Rules,
1960 is made, it is deemed to be accepted. He further submits that
the prospecting license, dated 10/10/2005, in which the respondent
no.2, is shown to have signed as a Proprietor, is a tampered and
forged document, and ought not to have been relied upon. He
further submits that there were three different prospecting license's
on record, one at record page 78, the Model Form for prospecting
license in Form-F, in which it is the partnership Firm M/s Ajanta
Minerals is shown as the licensee; the second and third at record
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page 2/419 and 3/520, in both of which licensee is M/s Ajanta
Minerals and has been shown as a proprietary concern of the
respondent no.2, who has signed the Form-F as the Proprietor of
Ajanta Minerals. He submits that there is tampering of the
documents at the behest of the respondent no.2 and therefore, an
enquiry ought to be directed, in this regard as to the correctness of
the the prospecting license in Form-F for which he invites our
attention to the order of this Court dated 22/1/2018, by which three
files in custody of the Mining Officer were taken in custody by this
Court and directed to be kept with the Registry, under seal as
indicated therein. He further submits that the mandate has since
lapsed and even if the petition is dismissed, the respondent no.2
cannot get anything. He therefore submits that the impugned order,
which is based upon a finding that the prospecting license was
granted to the respondent no.2 as the proprietor of M/s Ajanta
Minerals is clearly not based upon the factual position as well as is
contrary to the Rules and Regulations in this regard and specifically
Rule 62 of the MC Rules, 1960 by which there is a deemed
permission for change of constitution and therefore cannot be
sustained. Mr. Ram Parsodkar, learned Counsel for the petitioner
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places reliance upon the following judgments.
(A) AIR 1966 Supreme Court 1300 (Addanki
Narayanappa and another Vs. Bhaskara Krishnappa and
others)
(B) (2008) 11 SCC 413 (Som Lal Vs. Vijay Laxmi and
others)
(C) (2011) 4 SCC 275 (Milind Shripad Chandurkar Vs.
Kalim M. Khan and another)
(D) (2009) 1 SCC 689 (State of Uttar Pradesh and
another Vs. Jagdish Sharan Agrawal and others)
5. Mr. Neeraj Patil, learned Assistant Government Pleader
appearing for the respondent no.1, submits, that the prospecting
license was granted to M/s Ajanta Minerals, as a proprietary
concern of the respondent no.2, by order dated 14/7/2005. He
submits that the petitioner - Firm, as a partnership concern was
registered on 10/2/2009, in view of which, the partnership Firm
was not in existence on 14/7/2005, when the prospecting license
was granted. He further submits that after carrying out prospecting
work, the proprietary concern M/s Ajanta Minerals had applied for
mining lease on 25/4/2006, in Form-I and the respondent no.1 has
recommended the grant of such mining lease, consequent to which,
the Government of India, Ministry of Mines has accorded its
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approval on 22/12/2008 under Section 5 (1) of the MMDR Act,
1957, in terms of which, a letter of intent has been issued by the
respondent no.1, on 12/1/2009, for grant of mining lease to
M/s Ajanta Minerals a proprietorship concern. He further submits
that since the Central Government had already granted its approval
under Section 5 (1) of the MMDR Act, 1957 on 22/12/2008 and the
LOI was issued on 19/1/2009, therefore in terms of Section 10-A
(2) (c) of the MMDR Act, 1957, as amended in 2015, the
proprietary concern M/s Ajanta Minerals continued to remain
eligible for grant of mining lease as a preferential right was created
in terms of Section 11 (1) of the MMDR Act, 1957. He further
submits that the application for mining lease was received on
25/4/2006, on which date M/s Ajanta Minerals as a partnership
Firm was not registered at all, and therefore, it cannot claim to be
the recipient of the mining lease. He further contends, that the
allegations about fabrication of documents could not have been
decided by the respondent no.1. Mr. Neeraj Patil, learned AGP
further invites our attention to the fact that the present petitioner as
a partnership Firm, along with three of its partners, namely, (a) Shri
Rajendra Purushottam Tank, (b) Shri Ghanshyam Wasudeorao Tijare
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and (c) Shri Madhukar Sheshraoji Kale had on 19/12/2011 filed a
civil suit bearing R.C.S. No.9/2011, for permanent injunction,
against the present respondent no.2, wherein the same contentions
of the partnership Firm, having made an application for mining
lease on 25/4/2006 under the strength of the partnership-deed
dated 1/8/2005 were made and it was stated, that the Central
Government, by a communication of 2009 had granted approval for
lease in favour of the plaintiff-Firm, which was being opposed by the
present respondent no.2 (defendant therein) with an intention to
defraud the partners of the partnership Firm M/s Ajanta Minerals. It
was further stated that the plaintiff therein had invested nearly
Rs.50,000/- for establishing the business and obtaining the mining
lease, collecting machineries etc., however, because of the resistance
of the present respondent no.2 (defendant therein) the Firm was
unable to participate in the business of partnership and therefore, a
claim was made for grant of a permanent injunction, to permanently
restrain the defendant therein (present respondent no.2) from
obstructing the plaintiff-Firm in participating in the business of
M/s Ajanta Minerals over the land of Khasra No.121/1 Mouza
Sohale, with a further direction to the defendant no.2 therein to give
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all accounts of the business of mining being conducted on the said
property to the partnership Firm and also to grant necessary profits
accrued in the business of partnership within the stipulated time. A
further relief was sought in the nature of the direction to the
defendant therein (respondent no.2, here) not to obstruct the
plaintiff-Firm, their men and machineries from participating in the
excavation of iron ore. In this suit, an application for temporary
injunction filed was rejected, which was not challenged and the suit
itself came to be dismissed in default for want of prosecution on
23/7/2013. He further submits that under Section 11 (1) of the
MMDR Act, 1957, there was a bar created in grant of prospecting
license-cum-mining lease, without any auction, which however, in
the present case will not be applicable, in view of provisions of
Section 10-A of the MMDR Act, 1957.
6. Mr. Arjun Bobde, learned Counsel for the respondent
no.2 by inviting our attention, to Rule 14 (1) (vii) of the MC Rules,
1960, contends that there is a prohibition upon transfer of the
prospecting license, except with the previous sanction of the State
Government, which was conspicuous by its absence. He further
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invites our attention to the two provisos thereto, delineating the
requirements for grant of such sanction, none of which according to
him, stood complied in the present matter. Learned Counsel further
invites our attention to Rule 15-A of the MC Rules, 1960, to contend
that even where a sanction has been granted for transfer of the
prospecting license, a transfer-deed in Form-P has to be executed
within three months from the date of the consent or such further
time as may be allowed in this regard, which also is absent. By
inviting our attention to Form-P, the Model Form for transfer of
prospecting license, learned Counsel contends, that when the
transferee is a registered Firm, the names and addresses of all the
partners carrying on business in partnership under the Firm name
had to be so entered in Form-P, which again is not there. He further
submits that Rule 62 of the MC Rules, 1960 operates in a different
situation altogether in as much as Rule 62 merely contemplates, the
change of name, nationality etc. to be intimated in respect of an
applicant for, or the holder of, a prospecting license or a mining
lease to the State Government within sixty days of any change that
may take place in his name, nationality or other particulars
mentioned in the relevant forms and has no applicability in the case
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of a transfer. By inviting our attention, to the application for mining
lease dated 25/4/2006, he contends that the status of the applicant
therein, has been shown as a proprietorship concern of the
respondent no.2 and not as a partnership Firm. He further invites
our attention to the affidavit dated 29/12/2005 sworn in this
regard, which is in the individual name of the respondent no.2, in
which the PAN number as shown therein, was the individual PAN
number of the respondent no.2 and not otherwise. He submits that
the application for mining lease, as filed on record by the petitioner
dated 25/4/2006, claiming that the same was in the name of the
partnership Firm, is a document, which has not been signed by the
respondent no.2, and the signature on the last page of the same,
was clearly a fabricated one. He further contends, that though the
first page of Form-I bears a date 25/4/2006, the last page of the said
document bears the date 7/4/2006. That apart the same is also not
signed by the Collector and thus cannot be treated as a document
executed, but was merely the Form in the format required. He
further submits that neither Form-D which is the receipt of
application of prospecting license/mining lease nor the
communication dated 7/4/2006, submitting the mining documents,
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indicate that they were done by the partnership Firm. He further
submits, that the mining plan, as submitted, by the respondent no.2
had been approved by the Regional Controller of Mines on
3/12/2010 and the introduction to the approved mining plan, also
indicates, that M/s Ajanta Minerals was a proprietary concern. He
submits that the entire communication, with the various authorities,
throughout, has been done by the respondent no.2. He further
submits, that an enquiry into the complaint of a similar nature was
made by the Collector, Gadchiroli, who by his report dated
2/5/2016 (pg.3/597), had submitted, categorically, that M/s Ajanta
Minerals was a proprietary concern of the respondent no.2, which
was registered as such on 13/11/1995 with the District Industries
Centre, who had in 1998 applied for the prospecting license, and
was granted the same on 14/7/2005, agreement in respect of which
was executed on 10/10/2005, in Form-F, which was signed by the
respondent no.2 as a proprietor of M/s Ajanta Minerals and the
Collector, Gadchiroli, and the lease was also executed in the name of
the proprietorship concern on 22/12/2008. Mr. Arjun Bobde,
learned Counsel for the respondent no.2 further invites our
attention to the partnership-deed dated 1/8/2005 to contend that
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the stamp paper for the same is dated 9/3/2005, whereas the same
is notarized on 19/12/2005 and as such was affected by Section 52
(B) of the Maharashtra Stamp Act, as the stamp was used after six
months. By inviting our attention to Rule 8 (1) (a) (b) of the MC
Rules, 2016, Mr. Arjun Bobde, learned Counsel for respondent no.2
contends that the requirements thereof were already complied with,
and therefore, it was the obligation of the respondent no.1, to issue
an order for grant of mining lease under Sub-Rule 2 of Rule 8 of the
relevant MC, Rules, 2016, and therefore, the contrary contention
that the mandate has lapsed, was without any merits whatsoever.
7. The basic crux of the matter lies in three things:-
(a) whether a partnership was constituted;
(b) whether the prospecting license/mining lease and its benefits
were brought in by the respondent no.2 as his share in the
partnership Firm; and
(c) whether there was a transfer of the prospecting license/mining
lease, in favour of the partnership Firm, as required by the
provisions of Rule 14 of the MC Rules, 1960.
Civil WP 7128 of 2016.odt
8. Though it is contended by learned Counsel for the
petitioner that a partnership was formed on 1/1/2005, with (a) the
defendant no.2, (b) Shri Madhukar Sheshraoji Kale and
(c) Shri Ghanshyam Wasudeorao Tijare as partners, no such
partnership-deed dated 1/8/2005, has been placed on record to
substantiate this plea. The certificate of registration of M/s Ajanta
Minerals placed on record, reflects the partnership Firm being
created on 1/8/2005, for the registration of which, the form, which
was submitted, is dated 19/12/2005 and the entry of the
partnership Firm, was taken in the register of Firms on 10/2/2009.
The deed of partnership which is placed on record is dated
1/8/2005. Though it is contended by Mr. Arjun Bobde, learned
Counsel for respondent no.2, that this partnership-deed dated
1/8/2005 was written on an invalid stamp paper as the stamp paper
is dated 9/3/2005 and the same was notarized on 19/12/2005,
whereas Section 52 B of the Maharashtra Stamp Act requires a
stamp paper to be used within six months from the date of its
issuance, we are not impressed with this contention, for the reason
that though the partnership-deed, may have been notarized on
19/12/2005, however, the same has been executed on 1/8/2005,
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which is within a period of six months from the date of purchase of
the stamp paper on 9/3/2005. The contention therefore, in this
regard, is rejected.
9. A perusal of the partnership-deed dated 1/8/2005,
indicates that there is a mention therein, that the parties to the
partnership-deed intend to start a new business of mining and
raising of minerals and iron ores, trading in minerals, owing leases
of mineral bearing land under the name and style of M/s Ajanta
Minerals, and the opening paragraph of the deed of partnership
makes a mention of the prospecting license dated 14/2/2005 in the
name of M/s Ajanta Minerals, on Khasra No.121/1, 65 hectares, at
post Kurkheda, Tq. Korchi, village Sohale, District Gadchiroli. The
operative parts of the terms of the deed of partnership do not
indicate, that the prospecting license issued in name of the
defendant no.2, was brought in by him as his share to the
partnership. This is clarified from term no.5, in which the share
capital of the partners is listed, the total of which is a sum of
Rs.50,000/- in which the share capital of the defendant no.2 is
shown as Rs.12,500/-. Further there is no term in the entire
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partnership-deed, from which it can be inferred, that the
prospecting license, or the consequent benefits arising out of the
same, were brought in by the defendant no.2, as his share in the
capital of the Firm, or his contribution and that the benefits arising
therefrom were to be shared in the proportion of profit and loss as
mentioned in term no.7 of the partnership-deed. The entire
partnership-deed is a computerized document. There is however a
handwritten term No.14-A on the last page of the deed, which states
"all applied mines in name of all partners till date in Gadchiroli Dist.
shall includes in this partnership-deed". Though during the course of
the argument, no contentions were advanced on this handwritten
term no.14-A, and stress was only laid on the opening paragraph of
the deed which made a mention of the prospecting license dated
14/7/2005, it is perhaps this term no.14-A, which can be alone
invoked by the petitioner to contend that the prospecting license
was brought in by the defendant no.2 in the partnership Firm.
However it is worthwhile to note that the execution of this deed of
partnership dated 1/8/2005 is disputed by the respondent no.2,
who has throughout contended that the prospecting license and all
subsequent actions, documents, benefits, have been applied for and
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issued and granted in favour of a proprietary concern of the
defendant no.2 bearing the name "M/s Ajanta Minerals". Such
opposition, is not only reflected from the submissions of the
respondent no.2, but the actions of the respondent no.2, in
pursuance to the grant of the prospecting license dated 10/10/2005
in the Model Form-F; the application for mining lease dated
25/4/2006 and the further communications in that regard, all of
which, are in the name of M/s Ajanta Minerals, which is claimed
and recognized by the concerned authorities as well as the
respondent no.1 to be a proprietary concern. It is further material to
note that the petitioner claiming itself to be a partnership Firm had
filed R.C.S. No.9/2011, against the present respondent no.2, which
was a suit for permanent injunction, wherein, the same plea, that
the petitioner was a partnership Firm, of which the respondent no.2
was a partner and benefits arising out of the prospecting license
were the subject matter. It would be material to reproduce the
reliefs as claimed in R.C.S. No.9/2011, which are as under :-
"(a) It is, therefore, most humbly and respectfully prayed
that this Hon'ble Court may be pleased be directed to give
all the accounts of the business of mining being conducted
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on the suit property to the plaintiff Firm and also to grant
necessary profits accrued in the business of partnership
within the stipulated time.
(b) direct defendant not to obstruct the plaintiff Firm,
their men and machineries from participating in the
excavation of iron ore from the suit property, by granting
decree of permanent injunction.
(c) saddle the costs on the defendant.
(d) grant any other relief as this Hon'ble Court deems
fit, just and proper considering the facts and circumstances
of the case, in the interest of justice."
10. R.C.S. No.9/2011, was filed on 19/12/2011, in the
Court of Civil Judge, Junior Division, Kurkheda, District Gadchiroli.
An application for temporary injunction under Order 39 Rules 1
and 2 of the C.P.C. was also filed. The present respondent no.2, who
was the sole defendant in R.C.S. No.9/2011, had opposed the
maintainability of the suit as well as the plea that there was any
partnership formed vis-a-vis the prospecting license and the benefits
arising from its successful culmination by the execution of a mining
lease. It was the specific contention of the present respondent no.2
in R.C.S. No.9/2011 that M/s Ajanta Minerals was an exclusive
proprietary concern of the respondent no.2 and it was the
respondent no.2 alone, who had applied for the prospecting license
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and had prosecuted the same throughout. The application for
temporary injunction came to be rejected on 29/3/2012, holding
that prima facie it was difficult to hold that a clear-cut license was
granted in favour of the plaintiff-Firm. This order of rejection of the
application for temporary injunction, does not appear to have been
challenged by the petitioner. It is further material to note that R.C.S.
No.9/2011, itself came to be dismissed in default, due to want of
prosecution on 23/7/2013, as in spite of repeated chances no
evidence was led, and thereafter, no attempts whatsoever have been
made by the present petitioner to get it restored. It is further
material to note that though the petitioner, contends that the Model
Form for prospecting license in Form-F, filed at Annexure-xvi to the
petition indicates, that M/s Ajanta Minerals, is a partnership Firm,
however, the prospecting license in Model Form-F which is actually
executed, between the Collector, Gadchiroli and M/s Ajanta
Minerals, as filed by the respondent no.2, dated 10/10/2005 would
indicate that the prospecting license has been executed in favour of
M/s Ajanta Minerals, proprietary concern of the respondent no.2.
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11. It is thus apparent that the very existence of M/s Ajanta
Minerals as a partnership Firm, is a matter of dispute between the
petitioner on the one hand, who claims it to be a partnership Firm
and on the other hand, the respondent no.2, who claims it to be his
proprietary concern. Though the certificate of registration of the
Firms as issued by the Registrar of Firms, shows the partnership
Firm M/s Ajanta Minerals having four partners including the present
defendant no.2, which has been registered in the register of Firms
w.e.f. 10/2/2009 in respect of a partnership Firm which is stated to
have come into existence on 1/8/2005, since the execution of the
same itself, is disputed by the defendant no.2, any decision as to
whether a partnership Firm really came into existence, whether the
prospecting license and its consequent benefits were brought in by
the respondent no.2 in the partnership Firm and were made the
subject matter of the business of the partnership Firm, are all
questions, which are disputed and which cannot be decided by this
Court in its writ jurisdiction under Article 226 of the Constitution of
India, as the decision of the same, would require evidence to be led
in an adversarial litigation before the Civil Court.
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12. That apart, Mr. Arjun Bobde, learned Counsel for the
respondent no.2, is correct in his submission, based upon Rule 14
and 15-A of the Mineral Concession Rules, 1960, the relevant
portions of which for the sake of ready reference, are reproduced
below :-
"Rule 14. Conditions of a prospecting license.- (1) Every
prospecting license granted under these rules, shall, in
addition to any other conditions, that may be specified
therein, be subject to the following conditions, namely :-
......
(vii) the licensee shall not, except with the
previous sanction of the State Government, transfer his
license :
Provided that no prospecting license shall be
transferred to any person who has not filed an affidavit
stating that he has filed an up-to-date income-tax returns
and paid the income-tax assessed on him and paid the
income-tax on the basis of self-assessment as provided in
the Income-tax Act, 1961 (43 of 1961), and except on
payment to the State Government of a fee of five hundred
rupees :
Provided further that the State Government shall
not grant its sanction for the transfer of prosecuting
license unless the transferee has accepted all the
conditions and liabilities which the transferor has in
respect of such prospecting license:
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Provided also that the State Government may, by
order in writing after providing the licensee the
opportunity of being heard, cancel such prospecting
license at any time if the licensee has, in the opinion of
the State Government, committed a breach of this clause
or rule 15-A."
Rule 15-A. Where on an application for grant of sanction
to transfer the prospecting license under clause (vii) of
sub-rule (1) of rule 14, the State Government has granted
sanction for transfer of such license, a transfer deed in
Form P, or a form as near thereto as possible shall be
executed within three months of the date of the consent,
or within such further period as the State Government
may allow in this behalf."
Even presuming that there was a partnership Firm and
the prospecting license and its benefits due to its successful
culmination in execution of a mining lease, were brought into such
partnership Firm, however, in so far as the authorities are
concerned, the same would be of no consequence in light of the
language and requirement of Rule 14 (1) (vii) and Rule 15-A of the
MC Rules, 1960, as there was no transfer of the prospecting license
in the name of the partnership Firm. A perusal of Rule 14 (1) (vii) of
the MC Rules, 1960, indicates, that the transfer of a prospecting
Civil WP 7128 of 2016.odt
license is not permissible without the previous sanction of the State
Government. The first two provisos to Rule 14 (1) (vii), lay down
the requirements for such transfer. Further Rule 15-A of the MC
Rules, 1960 mandates that in case a sanction to transfer a
prospecting license, has been granted, a further transfer-deed, in
Form-P has to be executed within three months from the date of the
sanction to transfer or such further period as may be allowed in this
regard. Thus, merely contending that a partnership Firm had come
into existence and the prospecting license and its benefits, were
brought into the partnership Firm, are of no benefit to the petitioner,
for the reason, that any such plea, would clearly amount to a claim
for the transfer of the prospecting license and the benefits arising
therefrom, thereby attracting the mandate of Rule 14 (1) (vii) of the
MC Rules, 1960 of the previous sanction of the State Government
and of Rule 15-A, of the execution of a transfer-deed, evincing the
transfer of such prospecting license, in Form-P. A perusal of Form-P,
further indicates, that it is a Model Form for transfer of prospecting
license, in which, in case the transferee, is a registered Firm, the
names and address of all the partners carrying on business in
partnership in name and style of the Firm, have to be entered. In the
Civil WP 7128 of 2016.odt
instant matter, though it is contended by Mr. Ram Parsodkar, learned
Counsel for the petitioner that there was a transfer of the
prospecting license, no such sanction of the State Government, as
required under Rule 14 (1) (vii) of the MC Rules, 1960, nor the
transfer-deed in Model Form-P, as required under Rule 15-A of the
MC Rules, 1960 have been placed on record. In fact, the petitioner
has not even come to the Court with a plea, that there ever was
transfer, in consonance with Rule 14 (1) (vii) and 15-A of the MC
Rules, 1960.
12.1. The mere filling up of the Model Form of prospecting
license-Form-F, wherein M/s Ajanta Minerals is shown as a
partnership Firm, would for the above reason not be of any effect
whatsoever. That apart a prospecting license was duly executed
between the respondent no.2, as proprietor of M/s Ajanta Minerals
and the Collector Gadchiroli on 10/10/2005, after due approvals as
required in that regard, which would indicate that even if any
request as indicated by the letter dated 22/9/2005 was made, the
same was not acceded to by the State Government.
Civil WP 7128 of 2016.odt
12.2. The contention of Mr. Ram Parsodkar, learned Counsel
for the petitioner relying on Rule 62 of the MC Rules, 1960 that
since an application was made by the partnership Firm, on
22/9/2005, requesting the Mining Officer, District Collector Office,
Gadchiroli, for insertion of all the partners' names in agreement,
deed, order dated 14/7/2005 of the prospecting license, by
enclosing the partnership-deed and power of attorney, the same
amounted to an acceptance of the change of constitution of the Firm
from a proprietary concern to a partnership Firm, as nothing was
required further to be done once the intimation was given, has to be
tested upon the language of Rule 62 of the MC Rules, 1960, which is
reproduced as under :-
"Rule 62. Change of name, nationality, etc., to be
intimated - (1) An applicant for, or the holder of, a
reconnaissance permit, a prospecting license or a mining
lease shall intimate to the State Government within sixty
days any change that may take place in his name, nationality
or other particulars mentioned in the relevant Forms.
(2) If the holder of a reconnaissance permit or a
prospecting license or a mining lease fails, without sufficient
cause, to furnish the information referred to in sub-rule (1),
the State Government may determine the reconnaissance
permit or prospecting license or mining lease, as the case
may be :
Civil WP 7128 of 2016.odt
Provided that no such order shall be made without
giving the permit holder or the licensee or the lessee, as the
case may be, a reasonable opportunity of stating the case."
A perusal of Rule 62 (1) of the MC Rules, 1960
indicates, that wherever a change takes place in the name,
nationality, or other particulars mentioned in the relevant forms,
the applicant or the holder of a reconnaissance permit, a prospecting
license or mining lease, has to intimate, such change to the State
Government within 60 days of such change, and Rule 62 (2)
mandates that failure to furnish such information about change
gives the option to the State Government to determine the
reconnaissance permit, a prospecting license or mining lease. Rule
62 and Rule 14 (1) (vii) r/w Rule 15-A of the MC Rules, 1960,
operate in two different and distinct arenas. Whereas Rule 14 (1)
(vii) r/w Rule 15-A of the MC Rules, 1960, specifically deals with
the question of transfer of a prospecting license, requiring the
previous sanction of the State Government therefor and execution of
a transfer-deed in pursuance to such sanction in Form-P, Rule 62, on
the other hand, merely requires any change of name, nationality or
information in the reconnaissance permit, a prospecting license or
Civil WP 7128 of 2016.odt
mining lease, to be intimated to the State Government. Rule 62 of
the MC Rules, 1960, cannot by any stretch of imagination be held, to
be a substitute or replacement of Rules 14 (1) (vii) and 15-A of the
MC Rules, 1960. Rule 62, has nothing whatsoever to do with the
transfer of the prospecting license in any manner whatsoever. Rule
62 merely requires the relevant information to be kept updated in
the records and nothing else. Thus, the reliance upon Rule 62 of the
MC Rules, 1960 by Mr. Ram Parsodkar, learned Counsel for the
petitioner to contend that the same envisages transfer of the
prospecting license, merely on intimation of the changes as
contemplated therein, is clearly misplaced. Any intimation as may
be required by Rule 62 of the MC Rules, 1960, cannot have the
effect of transferring of the prospecting license and any such
transfer, has to be strictly in consonance with the requirements and
in accordance with Rule 14 (1) (vii) and 15-A of the MC Rules,
1960. It is thus apparent that in absence of any document
envisaging the fulfillment of the requirements of Rule 14 (1) (vii)
and 15-A of the MC Rules, 1960, even if it is presumed that there
was a partnership in existence to which the prospecting license and
its benefits were brought in by the respondent no.2, the same in
Civil WP 7128 of 2016.odt
absence of compliance with the requirements of Rule 14 (1) (vii)
and 15-A of the MC Rules, 1960 would be of no avail and benefit to
the petitioner in any manner whatsoever.
12.3. It is trite that when the Rules require transfer to be
effected in a particular manner, the same ought to be effected
strictly in consonance with the Rules and not otherwise. Thus,
admittedly, since there is nothing on record to indicate that the
requirements of Rule 14 (1) (vii) and 15-A of the MC Rules, 1960
have been complied with, the plea, that there was a transfer of the
prospecting license and the benefits accruing thereto in favour of the
partnership Firm M/s Ajanta Minerals, presuming that it was so
created, cannot be accepted and is hereby rejected.
13. Though much reliance has been placed by
Mr. Ram Parsodkar, learned Counsel for the petitioner on the
application for mining lease in Form-I dated 25/04/2006 and it
being signed by respondent no.2, the same on its own, would not be
of any significance, for the reason that presuming the prospecting
license and its benefits having been brought into the partnership
Firm, the mere making of an application for grant of mining lease, of
Civil WP 7128 of 2016.odt
its own, does not confer any right upon the person making it for
grant of a mining lease, as the grant of mining lease is after
compliance of the conditions necessary for grant of such lease,
which admittedly had not been done by the partnership Firm. A
perusal of the terms of the prospecting license in Form-F dated
10/10/2005, indicates that a preferential right was created in the
respondent no.2 for grant of mining lease as indicated by term nos.3
to 5 in part iv of the prospecting license, in case all the terms and
conditions of prospecting license stood satisfied and it is in
pursuance to this term that the respondent no.2 had applied for a
mining lease to be granted in Form - I, which benefit could not have
accrued to the petitioner, unless the prospecting license was
transferred in favour of the partnership Firm, in accordance with
Rules 14(1) (vii), and 15-A of the MC Rules, 1960 and the
conditions of transfer as enumerated in term no.1, part - iv of the
prospecting lience in Form -F.
That apart, the execution of this document itself is
disputed by the respondent no.2 on the ground that it is a tampered
document, created by changing the first page of Form - I by
replacing the details of a proprietorship concern with that of a
Civil WP 7128 of 2016.odt
partnership Firm, which dispute again is something which would
require evidence.
14. The reliance upon the communication dated
14/07/2005 by the Director, Directorate Geology and Mining,
Government of Maharashtra, Nagpur to M/s Ajanta Minerals and the
communication dated 03/12/2010 addressed by the Regional
Controller of Mines to M/s Ajanta Minerals is also of no assistance to
the petitioner, for the reason that these communications nowhere
depict that they were addressed to the partnership Firm M/s Ajanta
Minerals, but are addressed merely to M/s Ajanta Minerals. In fact,
the letter dated 14/07/2005 is a communication enclosing the order
dated 14/07/2005, whereby the prospecting license was sanctioned
in favour of M/s Ajanta Minerals in pursuance to the application
dated 09/12/1998 which admittedly was made by the respondent
no.2 as a proprietor of M/s Ajanta Minerals. The other letter dated
03/12/2010 communicates the approval of the Mining plan and it is
not the case of the petitioner that the partnership Firm had prepared
and submitted the Mining plan, on the contrary, the first page of
Mining plan as enclosed with the letter dated 19/01/2009 shows
Civil WP 7128 of 2016.odt
that the Mining plan was prepared by M/s Ajanta Minerals, a
proprietary concern.
15. In fact, the undated power of attorney claimed to be
executed by the respondent no.2 in favour of Mr. Ghanshyam Tijare,
who had made the application dated 22/9/2005, intimating the
Mining Officer about the constitution of the partnership Firm, did
not confer or contain any power to apply for any change of name or
for that matter transfer of the mining lease, in favour of anyone
whomsoever, as is apparent from a perusal of the powers as
conferred under terms (2) to (10) therein and in view of the settled
position of law that the powers contained in the power of attorney,
have to be strictly construed, it was also not permissible for Mr.
Ghanshyam Tijare, to have made the application dated 22/9/2005
to the Mining Officer.
16. Though Mr. Ram Parsodkar, learned Counsel for the
petitioner has placed reliance upon Addanki Narayanappa - which
holds that once a property is brought into the partnership Firm, it
ceases to be the exclusive property of the person who brought in
Civil WP 7128 of 2016.odt
and becomes the property on the partnership in which all the
partners would have interesting proportion to their share; Som Lal -
which holds that when the mandate of the legislature is categorically
clear and admits of no two opinions, the Courts should be very slow
to interfere with the mandate of the legislature unless there are
compelling reasons for doing so; Milind Shripad Chandurkar - which
on facts, holds that the appellant therein had failed to prove any
nexus or connection by adducing any evidence, whatsoever, worth
the name with the Firm and therefore could not said to be the
proprietor of the Firm and Jagdish Sharan Agrawal - holding that a
dismissal for default is not a decision on merits and cannot operate
as res judicata (supra), and we have gone through them, however,
in light of the admitted position that the application for prospecting
license, was filed by the respondent no.2 as the proprietor of
M/s Ajanta Minerals and what we have held regarding absence of
transfer of the prospecting license, due to non-compliance of the
requirements of Rule 14 (1) (vii) and 15 -A of the MC Rules, 1960
and the dispute raised about the existence of the partnership Firm,
we do not feel, that the judgments are of any assistance to the plea
as canvassed by learned Counsel for the petitioner.
Civil WP 7128 of 2016.odt
17. The position which thus emerges is that the respondent
no.2, as of date, is clearly entitled, to the benefits of the prospecting
license and the mining lease, as proprietor of M/s Ajanta Minerals,
and the findings as rendered in the impugned order dated 8/6/2017
cannot be faulted with.
18. The issue whether, the mandate has lapsed or not, is
not the subject matter of the present petition, as no reliefs in that
regard have been claimed in the present petition and therefore, we
refrain from making any comment upon the same, as it is a matter
squarely between the respondent no.2 and the State Government.
19. In so far as the relief claimed, for direction to conduct
an inquiry in respect of the prospecting license dated 10/10/2005, it
is hardly material, as to whether in whose custody the same is, for
nothing turns around it, in absence of sanction to transfer as
mandatorily required by Rule 14(1)(vii) read with Rule 15-A of the
MC Rules, 1960 and the prayer made in this regard cannot be
granted.
Civil WP 7128 of 2016.odt
20. The writ petition, therefore, in view of what we have
said above, is dismissed.
Rule stands discharged. No order as to costs.
(AVINASH G. GHAROTE, J.) (SUNIL B. SHUKRE, J.)
Wadkar/Sarkate
Digitally signed
by Shailendra
Shailendra Wadkar
Wadkar Date:
2021.03.25
19:11:57 +0530
