Bombay High Court
Jai Gajanan Stone Crusher Through ... vs The State Of Maharashtra, Through ... on 17 March, 2022
Bench: A.S. Chandurkar, Mukulika Shrikant Jawalkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.4588/2019
Shrikrupa Stone Crusher through its Partner-
Avinash Madhukar Tayde, Aged 48 years,
R/o. Motoda, Tq. Nandura District Buldhana.
....... PETITIONER
...V E R S U S...
1] The State of Maharashtra,
through its Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai-400 032
2] Additional Collector,
Buldhana.
3] Sub-Divisional officer (Revenue),
Khamgaon, District Buldhana.
4] Tahsildar, Khamgaon,
District Buldhana.
....... RESPONDENTS
WITH
WRIT PETITION NO.4589/2019
Jai Gajanan Stone Crusher through its
Partner-Namdeo Ananda Bhonde,
Aged 48 years, R/o. Pimpri Deshmukh,
Tq. Khamgaon, District Buldhana.
....... PETITIONER
...V E R S U S...
1] The State of Maharashtra,
through its Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai-400 032
2] Additional Collector,
Buldhana.
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3] Sub-Divisional officer (Revenue),
Khamgaon, District Buldhana.
4] Tahsildar, Khamgaon,
District Buldhana.
....... RESPONDENTS
WITH
WRIT PETITION NO.4590/2019
Shrikrushna Stone Crusher through its
Partner-Vinayak Pandurang Mukund,
Aged 52 years, R/o. Mohta Plot,Nandura.
Tq. Nandura, District Buldhana.
....... PETITIONER
...V E R S U S...
1] The State of Maharashtra,
through its Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai-400 032
2] Additional Collector,
Buldhana.
3] Sub-Divisional officer (Revenue),
Khamgaon, District Buldhana.
4] Tahsildar, Khamgaon,
District Buldhana.
....... RESPONDENTS
WITH
WRIT PETITION NO.4591/2019
Durga Stone Crusher through its Partner-
Shri Rajesh Panditrao Ekade,
Aged 52 years, R/o.Ward No.2, Ekade Layout,
Nandura, Tq. Nandura District Buldhana.
....... PETITIONER
...V E R S U S...
1] The State of Maharashtra,
through its Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai-400 032
WP.4588.2019 WITH CONNECTED WPs.(J) 3/13
2] Additional Collector,
Buldhana.
3] Sub-Divisional officer (Revenue),
Khamgaon, District Buldhana.
4] Tahsildar, Khamgaon,
District Buldhana.
....... RESPONDENTS
WITH
WRIT PETITION NO.4592/2019
Shri Swami Samarth Stone Crusher,
through its Proprietor-Sunil Mahadeo Girhe,
Aged 37 years, Occupation - Business,
R/o. Pimpri Deshmukh,
Tq. Khamgaon, District Buldhana.
....... PETITIONER
...V E R S U S...
1] The State of Maharashtra,
through its Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai-400 032
2] Additional Collector,
Buldhana.
3] Sub-Divisional officer (Revenue),
Khamgaon, District Buldhana.
4] Tahsildar, Khamgaon,
District Buldhana.
....... RESPONDENTS
---------------------------------------------------------------------------------------------------------------
Shri S/Shri Shantanu Khedkar, V.B.Bhise and R.D. Dhande, Advocates for
petitioner in respective writ petitions.
Ms. N. P. Mehta, Assistant Government Pleader for respondents in all writ
petitions.
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CORAM : A.S.CHANDURKAR and SMT. M.S.JAWALKAR, JJ.
ARGUMENTS WERE HEARD ON 08.03.2022.
JUDGMENT IS PRONOUNCED ON 17.03.2022
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ORAL JUDGMENT (Per A.S.CHANDURKAR, J.)
Rule. Rule made returnable forthwith and heard the learned counsel
for the parties.
2. The question that arises in this batch of writ petitions is whether
grant of short term permit for minor minerals under Rule 59 of the
Maharashtra Minor Mineral Extraction (Development and Regulation) Rules,
2013 (for short, the Rules of 2013) ought to be preceded by holding public
auction or whether such short term permit can be granted on the basis of an
application made to the Competent Authority ?
3. Each petitioner claims to hold permission to operate stone crushers.
The petitioners were informed by the Additional Collector that in view of
Government Resolution dated 23.01.2019 grant of short term permit would be
permissible only through e-auction. For that reason, the request made by the
petitioners for grant of short term permit came to be refused. Being aggrieved
by the issuance of such communication the petitioners have challenged the
orders passed in that regard and further seek a direction that the respondents
be directed to issue short term permit for extraction of minor minerals to the
petitioners.
4. Shri Shantanu Khedkar, learned Counsel alongwith S/Shri V.B.Bhise
and R.D.Dhande, learned counsel for the petitioners submitted that the
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Additional Collector by misconstruing the provisions of Rule 59 of the Rules of
2013 alongwith Government Resolution dated 23.01.2019 has refused to grant
short term permit for excavation of minor minerals. Inviting attention to the
provisions of Rule 2(s) which defines "quarry license or lease" and Rule 2(t)
which defines "quarry permit", it was submitted that the Rules of 2013 make a
distinction between quarry license or lease and quarry permit. Rule 9 of the
Rules of 2013 prescribes the mode of granting quarry lease and under sub-rule
(1) the Competent Authority can grant quarry lease either on receipt of an
application or by way of public auction. Inviting attention to Rule 59 it was
submitted that for grant of short term permit to extract any minor mineral it
was necessary only to make an application to the Competent Authority and the
said Rule did not provide for conducting any auction in that regard. It was
further submitted that on 12.01.2018 the Revenue and Forest Department
issued Notification seeking to amend the Rules of 2013. Rule 9 as existing was
substituted making it obligatory on the part of the Competent Authority to
grant quarry lease by way of public auction. While introducing such
amendment the provisions of Rule 59 of the Rules of 2013 were not so
amended and hence there was no basis for the Additional Collector to hold that
grant of short term permit was also to be through public auction. On a plain
reading of Rule 9 as amended and Rule 59, it was submitted that there was no
reason to hold that grant of short term permit was to be through public auction.
Rule 59 began with the use of a non obstante clause and therefore there was no
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occasion to apply the provisions of Rule 9 while granting short term permit for
excavation of minor minerals. The learned counsel referred to the decision
Laxmi Devi vs. State of Bihar and others (2015) 10 SCC 241. It was thus
submitted that the impugned orders passed by the Additional Collector were
liable to be set aside and the application for grant of short term permit ought to
be considered in the light of Rule 59 of the Rules of 2013.
5. Ms. N. P. Mehta, learned Assistant Government Pleader for the
respondents opposed the aforesaid submissions. She submitted that under
Section 15 of the Mines and Mineral (Development and Regulation) Act, 1957
(for short, the Act of 1957) the State Government was empowered to make
Rules in respect of minor mineral. The Rules of 2013 were accordingly framed.
As per Rule 9 a quarry lease could be granted after holding public auction. The
same modality was to be followed for grant of short term quarry permit.
Inviting attention to Government Resolution dated 23.01.2019 it was submitted
that the manner in which such public auction was to be held was stipulated.
On a plain reading of the said Government Resolution it was clear that the
Additional Collector did not commit any error when he observed that short
term quarry permit could be granted only after holding a public auction. It was
thus submitted that the writ petitions were liable to be dismissed.
6. We have heard the learned counsel for the parties at length and we
have given due consideration to their respective submissions. For answering
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the question as framed hereinabove it would be necessary to first refer to the
relevant statutory provisions holding the field.
Under Section 15(1) of the Act of 1957 the State Government is
empowered to make Rules for regulating grant of quarry lease, minor lease or
other mineral concessions in respect of minor mineral. In exercise of that
power the Rules of 2013 have been framed. Rules 2(s) and 2(t) read as under:
"2(s) Quarry license of lease means a license granted under
these rules wherein a licensee is required to pay fixed annual
license fee exclusive or inclusive of royalty, as the case may
be."
"2(t) : Quarry permit means a permit granted under
Chapter-IV of these rules to extract and remove any minor
mineral in specified quantities and specified time."
Chapter II lays down the procedure for grant of quarry lease. Rule 9 prescribes
mode of granting quarry lease. That rule as substituted by Notification dated
12.01.2018 reads as under :
"9. Mode of granting quarry lease : (1) Subject to the
provisions of these rules, mineral concessions for quarry
lease on any land vested in the Government or any public
authority may be granted by the Competent Authority by
way of public auction."
Provided that, grant of quarry lease on a private land
in the name of the occupant or holder of such private land
shall be exempted from auction process and may be
granted to such occupant or holder upon his application.
However where the occupant or holder of a private land is
desirous of leasing his land to another person for
quarrying, such occupant or holder shall give his written
consent in that regard to the Collector who shall then put
quarrying rights in such land to auction for specified
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period in which case, the amount realized in auction shall
be credited to the Government and the amount of surface
rent as decided by the Government from time to time, will
be given to the land holder:
Provided further that, the practice of granting quarry
lease or permit upon application shall be continued in
case of Kumbhar and Vadar families which wish to do
such mining for pursuing their traditional business :
Provided further that, the provisions of this rule,
shall not apply to any case where prospecting licence or
mining lease had been granted but mining lease deed
could not be executed before the date of publication of the
Government of India Gazette notification No.F. No.5/ 1/
2015-M.M., dated 10th February 2015 declaring 31 major
minerals as minor minerals.
Explanation 1-for the Purposes of this rules,
'Public Authority" means any authority or body or
institution of self-government established or constituted,-
(a) by or under the Constitution of India;
(b) by any law made by the Parliament;
(c) by any law made by the State Legislature:
by notification issued or order made by the
appropriate Government, and includes any body owned,
controlled or substantially financed by the Central
Government or the State.
Explanation 2- for the Purpose of this rule.
"Surface rent" means rent, payable by the lessee for the
surface area, leased to him for the purpose of mining, at
the rates prescribed by the Government.
(2) A quarry lease may be granted for quarry operation
on the condition of payment of lease money including
royalty, dead rent, surface rent, water rates payable to the
Government and under such quarry lease, the lessee shall
have the right of quarrying and disposing of the extracted
minor minerals.
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(3) Procedure and terms and conditions for public
auction of quarry lease shall be such as the Government
may, by an order, specify, from time to time.".
Rule 11 pertains to an application for seeking quarry lease and Rule 15 refers
to disposal of the application for quarry lease. Chapter III comprises of Rules
46 to 57 and it prescribes terms and conditions of quarry lease. Chapter IV
pertains to grant of quarry permits for minor minerals and Rule 59, with which
we are concerned, reads as under :
"59. Grant of short term permits for minor minerals.
(1) Not-withstanding anything contained in the foregoing
rules, the Competent Officer, on an application made to
him may grant a quarry permit to any person to extract or
remove from any specified land within the limits of his
jurisdiction any minor mineral not exceeding in quantity as
mentioned under any one permit on payment of advance
royalties [at the rate specified in Schedule I] and on such
rents and fees assessable for such extraction:
Provided that, no permits shall be granted in case of any
specified minor mineral without prior approval of the
Director.
(2) The Competent Officer shall grant permit for specific
time and specific volume.
(3) The Competent Officer may refuse to grant such
permit for reasons to be recorded in writing."
Chapter V prescribes grant of concession by way of public auction. Under Rule
68 minor minerals can be disposed by way of public auction and under Rule 70
sand from nalah, river beds and creeks can be disposed of by way of public
auction. The Rules also comprise of various forms. Form B is an application
for quarry lease, Form C is an application of renewal for quarry lease and Form
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P is an application for quarry permit.
7. From the aforesaid provisions it becomes instantly clear that
reference to grant by way of public auction can be found in Rules 9(1), 68(1)
and 70. Rule 59 merely refers to an application to be made to the Competent
Officer for grant of quarry permit. On a plain reading of the aforesaid Rules, it
is obvious that the procedure for grant of quarry lease under Rule 9 as
amended is distinct from the procedure for grant of short term permit under
Rule 59. The Forms prescribed under the Rules of 2013 are also distinct.
Moreover, Rule 59(1) states that "notwithstanding anything contained in the
foregoing rules,......." Rule 59 (1) thus is intended to operate notwithstanding
anything contained in the foregoing rules including Rule 9. It is also pertinent
to observe that by Notification dated 12.01.2018, the Rules of 2013 were
amended. While existing Rule 9 was substituted, the earlier provision in Rule
9(1) of making an application for grant of quarry lease has been done away
with. After amendment, quarry lease can be granted by the Competent
Authority only by way of public auction. Rule 59 however has not been
amended and it continues to operate in its earlier form. Thus after amendment
the distinction between Rule 9(1) and Rule 59(1) becomes more obvious and it
is thus clear that it was not the intention of the State that short term permit for
minor minerals should be granted by way of public auction. The mode of
granting such permit on an application made has been retained.
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8. Much emphasis was sought to be placed on the Government
Resolution dated 23.01.2019. A complete reading of this Government
Resolution indicates that it lays down the procedure for conduct of auctions for
grant of quarry lease under Rule 9 of the Rules of 2013. In the entire
Government Resolution reference can be found only to the modality prescribed
by Rule 9 and other ancillary Rules in that regard. There is no reference
whatsoever to Rule 59 which empowers grant of short term permits. In the
absence of any provision in Rule 59(1) to grant short term quarry permit by
holding public auction, the same cannot be imported by referring to
Government Resolution dated 23.01.2019. In any event, that Government
Resolution specifically refers to Rule 9 of the Rules of 2013 and there is total
absence of any reference to Rule 59 of the Rules of 2013. It is thus clear that
the modality for grant of quarry lease under Rule 9 has been prescribed only to
be by way of public auction while grant of short term permit is only by way of
making an application to the Competent Authority. The question as framed is
answered accordingly.
9. Having found that short term quarry permit under Rule 59(1) of the
Rules of 2013 can be granted on an application being made to the Competent
Authority, we find that the application made by the petitioners herein are not
in accordance with Form P. Rule 61(1) of the Rules of 2013 prescribes the
nature of application to be made for grant of quarry permits and therefore if
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the petitioners seek quarry permit they would be required to apply as per the
provisions of Rule 61(1) of the Rules of 2013 and Form P thereof. However
rejection of the application as made by the petitioners is for the reason that
grant of quarry permits has to be as per public auction which reason has been
found to be incorrect. Incidentally, we may observe that holding of public
auction would always be preferable than any grant being made on the basis of
an application. However, for that purpose there ought to be some statutory
provision in that regard which is however absent in Rule 59 of the Rules of
2013.
10. Accordingly, the following order is passed :
(1) It is held that grant of quarry permits under Rule 59(1) would be
pursuant to application made in Form P to the Competent Authority and not by
public auction since there is no such requirement in Rule 59 of the Rules of
2013. Government Resolution dated 23.01.2019 is not applicable to grant of
quarry permits under Rule 59 of the Rules of 2013.
(2) The impugned orders refusing to grant short term quarry permit by
stating that the same can be granted only by way of public auction are set
aside.
(3) If the petitioners desire to seek grant of quarry permit under Rule
59(1) of the Rules of 2013, they are free to make such application under Rule
61(1) and Form P as prescribed. If such application is made the Competent
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Authority shall decide the same in accordance with law and in the light of the
observations made hereinabove.
Rule is made absolute in aforesaid terms with no order as to costs.
(SMT. M.S.JAWALKAR,J.) (A.S.CHANDURKAR, J.)
Andurkar..
Digitally Signed byJAYANT S
ANDURKAR
Personal Assistant
Signing Date:
17.03.2022 12:58
