Gauhati High Court
Page No.# 1/92 vs The Union Of India And 3 Ors on 17 February, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/92
GAHC010028662022
2025:GAU-AS:1681
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1104/2022
STHENOS CEMENT PRIVATE LTD AND ANR
347, SANTOSH ROY ROAD, BARISHA SAKHERBAZAR, JAMES LONG
SARANI, KOLKATA-700008, THROUGH ITS AUTHORISED
REPRESENTATIVE MR. ARUN SARAF, S/O MR. RAMAKANT SARAF, R/O
347, SANTOSH ROY ROAD, BARISHA, SAKHERBAZAR, JAMES LONG
SARANI, KOLKATA-700008
2: ARUN SARAF
SHAREHOLDER OF PETITIONER NO. 1
S/O MR. RAMAKANT SARAF
R/O 347
SANTOSH ROY ROAD
BARISHA
SAKHERBAZAR
JAMES LONG SARANI
KOLKATA-70000
VERSUS
THE UNION OF INDIA AND 3 ORS
THROUGH THE SECRETARY, MINISTRY OF MINES, GOVT. OF INDIA,
SHASTRI BHAWAN, NEW DELHI-110001
2:INDIAN BUREAU OF MINES
THROUGH THE CONTROLLER GENERAL 2ND FLOOR
INDIRA BHAWAN
CIVIL LINES
NAGPUR
MAHARASHTRA-440001
3:REGIONAL CONTROLLER OF MINES
BHUBANESWAR AND GUWAHATI
REGIONAL OFFICE
HOUSE NO. 216
Page No.# 2/92
3RD FLOOR ABOVE IDBI BANK CHANDMARI
P.O. BAMUNIMAIDAN
DIST. KAMRUP(M) GUWAHATI-781021
ASSAM
4:THE STATE OF ARUNACHAL PRADESH
THROUGH THE DIRECTOR OF MINES
DEPTT. OF GEOLOGY AND MINIG
GOVT. OF ARUNACHAL PRADESH
R K MISSION COMPOUND
ITANAGAR-791111
ARUNACHAL PRADES
Advocate for the Petitioner : MR R SENSUA, MR D BORAH
Advocate for the Respondent : ASSTT.S.G.I., MR. U K GOSWAMI (C.G.C),GA, AP
Linked Case : WP(C)/1844/2022
TASSOALLOYS PRIVATE LIMITED AND ANR
347
SANTOSH ROY ROAD
BARISHA
SAKHERBAZAR
JAMES LONG SARANI
KOLKATA-700008
THROUGH ITS AUTHORISED REPRESENTATIVE MR. ARUN SARAF
SON OF MR. RAMAKANT SARAF
R/O- 347
SANTOSH ROY ROAD
BARISHA
SAKHERBAZAR
JAMES LONG SARANI
KOLKATA-700008.
2: ARUN SARAF
SHAREHOLDER OF PETITIONER NO. 1
SON OF MR. RAMAKANT SARAF
R/O- 347
SANTOSH ROY ROAD
BARISHA
SAKHERBAZAR
JAMES LONG SARANI
Page No.# 3/92
KOLKATA-700008.
VERSUS
THE UNION OF INDIA AND 3 ORS
THROUGH THE SECRETARY
MINISTRY OF MINES
GOVERNMENT OF INDIA
SHASTRI BHAWAN
NEW DELHI-110001.
2:INDIAN BUREAU OF MINES
THROUGH THE CONTROLLER GENERAL
2ND FLOOR
INDIRA BHAWAN
CIVIL LINES
NAGPUR
MAHARASHTRA-440001.
3:REGIONAL CONTROLLER OF MINES
BHUBANESWAR AND GUWAHATI REGIONAL OFFICE
HOUSE NO. 216
3RD FLOOR ABOVE IDBI BANK CHANDMARI
POST-BAMUNIMAIDAN
DIST.- KAMRUP(M)
GUWAHATI
ASSAM-781021.
4:THE STATE OF ARUNACHAL PRADESH
THROUGH THE DIRECTOR OF MINES
DEPARTMENT OF GEOLOGY AND MINING
GOVERNMENT OF ARUNACHAL PRADESH
R.K. MISSION COMPOUND
ITANAGAR-791111 (ARUNACHAL PRADESH).
------------
Advocate for : MR R SENSUA
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS
Linked Case : WP(C)/1861/2022
SKAMORD MININGPRIVATE LTD AND ANR
SANTOSH ROY ROAD
BARISHA
SAKHERBAZAR
JAMES LONG SARANI
Page No.# 4/92
KOLKATA-700008
THROUGH ITS AUTHORISED REPRESENTATIVE MR. ARUN SARAF
SON OF MR. RAMAKANT SARAF
R/O- 347
SANTOSH ROY ROAD
BARISHA
SAKHERBAZAR
JAMES LONG SARANI
KOLKATA-700008.
2: ARUN SARAF
SON OF MR. RAMAKANT SARAF
R/O- 347
SANTOSH ROY ROAD
BARISHA
SAKHERBAZAR
JAMES LONG SARANI
KOLKATA-700008.
VERSUS
THE UNION OF INDIA AND 3 ORS
THROUGH THE SECRETARY
MINISTRY OF MINES
GOVERNMENT OF INDIA
SHASTRI BHAWAN
NEW DELHI-110001.
2:INDIAN BUREAU OF MINES
THROUGH THE CONTROLLER GENERAL
2ND FLOOR
INDIRA BHAWAN
CIVIL LINES
NAGPUR
MAHARASHTRA-440001.
3:REGIONAL CONTROLLER OF MINES
BHUBANESWAR AND GUWAHATI REGIONAL OFFICE
3RD FLOOR ABOVE IDBI BANK CHANDMARI
POST-BAMUNIMAIDAN
DIST.- KAMRUP(M)
GUWAHATI
ASSAM-781021.
4:THE STATE OF ARUNACHAL PRADESH
THROUGH THE DIRECTOR OF MINES
Page No.# 5/92
DEPARTMENT OF GEOLOGY AND MINING
GOVERNMENT OF ARUNACHAL PRADESH
R.K. MISSION COMPOUND
ITANAGAR-791111 (ARUNACHAL PRADESH).
------------
Advocate for : MR R SENSUA
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS
Linked Case : WP(C)/1850/2022
TASSOALLOYS PRIVATE LTD. AND ANR
SANTOSH ROY ROAD
BARISHA
SAKHERBAZAR
JAMES LONG SARANI
KOLKATA-700008
THROUGH ITS AUTHORISED REPRESENTATIVE MR. ARUN SARAF
SON OF MR. RAMAKANT SARAF
R/O- 347
SANTOSH ROY ROAD
BARISHA
SAKHERBAZAR
JAMES LONG SARANI
KOLKATA-700008.
2: ARUN SARAF
SON OF MR. RAMAKANT SARAF
R/O- 347
SANTOSH ROY ROAD
BARISHA
SAKHERBAZAR
JAMES LONG SARANI
KOLKATA-700008.
VERSUS
THE UNION OF INDIA AND 3 ORS
THROUGH THE SECRETARY
MINISTRY OF MINES
GOVERNMENT OF INDIA
SHASTRI BHAWAN
NEW DELHI-110001.
2:INDIAN BUREAU OF MINES
Page No.# 6/92
THROUGH THE CONTROLLER GENERAL
2ND FLOOR
INDIRA BHAWAN
CIVIL LINES
NAGPUR
MAHARASHTRA-440001.
3:REGIONAL CONTROLLER OF MINES
BHUBANESWAR AND GUWAHATI REGIONAL OFFICE
3RD FLOOR ABOVE IDBI BANK CHANDMARI
POST-BAMUNIMAIDAN
DIST.- KAMRUP(M)
GUWAHATI
ASSAM-781021.
4:THE STATE OF ARUNACHAL PRADESH
THROUGH THE DIRECTOR OF MINES
DEPARTMENT OF GEOLOGY AND MINING
GOVERNMENT OF ARUNACHAL PRADESH
R.K. MISSION COMPOUND
ITANAGAR-791111 (ARUNACHAL PRADESH).
------------
Advocate for : MR R SENSUA
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS
Linked Case : WP(C)/1857/2022
TASSOALLOYS PRIVATE LTD AND ANR
SANTOSH ROY ROAD
BARISHA
SAKHERBAZAR
JAMES LONG SARANI
KOLKATA-700008
THROUGH ITS AUTHORISED REPRESENTATIVE MR. ARUN SARAF
SON OF MR. RAMAKANT SARAF
R/O- 347
SANTOSH ROY ROAD
BARISHA
SAKHERBAZAR
JAMES LONG SARANI
KOLKATA-700008.
2: ARUN SARAF
Page No.# 7/92
SON OF MR. RAMAKANT SARAF
R/O- 347
SANTOSH ROY ROAD
BARISHA
SAKHERBAZAR
JAMES LONG SARANI
KOLKATA-700008.
VERSUS
THE UNION OF INDIA AND 3 ORS
THROUGH THE SECRETARY
MINISTRY OF MINES
GOVERNMENT OF INDIA
SHASTRI BHAWAN
NEW DELHI-110001.
2:INDIAN BUREAU OF MINES
THROUGH THE CONTROLLER GENERAL
2ND FLOOR
INDIRA BHAWAN
CIVIL LINES
NAGPUR
MAHARASHTRA-440001.
3:REGIONAL CONTROLLER OF MINES
BHUBANESWAR AND GUWAHATI REGIONAL OFFICE
3RD FLOOR ABOVE IDBI BANK CHANDMARI
POST-BAMUNIMAIDAN
DIST.- KAMRUP(M)
GUWAHATI
ASSAM-781021.
4:THE STATE OF ARUNACHAL PRADESH
THROUGH THE DIRECTOR OF MINES
DEPARTMENT OF GEOLOGY AND MINING
GOVERNMENT OF ARUNACHAL PRADESH
R.K. MISSION COMPOUND
ITANAGAR-791111 (ARUNACHAL PRADESH).
------------
Page No.# 8/92
For the Petitioner(s) : Mr. D. Saikia, Senior Advocate
: Mr. C.P. Sharma, Senior Advocate
: Mr. A. Mathews, Advocate
: Mr. G. Kaushik, Advocate
For the Respondent(s) : Mr. N.N.B. Choudhury, Addl. AG, Arunachal
Pradesh
: Mr. U.K. Goswami, CGC
Date of Hearing : 12.11.2024
Date of Judgment : 17.02.2025
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (CAV)
Heard Mr. D. Saikia and Mr. C.P. Sharma, the learned Senior Counsels
assisted by Mr. A. Mathews, the learned counsel appearing on behalf of the
petitioners in the batch of the instant writ petitions. I have also heard Mr.
N.N.B. Choudhury, the learned Additional Advocate General, Arunachal
Pradesh and Mr. U.K. Goswami, the learned Central Government Counsel
appearing on behalf of the respondent Nos. 1, 2 and 3.
2. The dispute involved in the instant batch of the writ petitions relates to
respective challenges made to the revocation of the approvals of the Mining
Plans of the petitioners by the Regional Controller of Mines, Indian Bureau of
Mines, the respondent No.3 in the writ petitions.
3. Before dealing with the submission so made by the learned counsels
appearing on behalf of the parties, this Court would briefly deal with the
Page No.# 9/92
facts involved in the present batch of writ petitions.
PLEADINGS IN THE WRIT PETITIONS
(I) The Department of Geology and Mining, State of Arunachal
Pradesh had conveyed a decision for grant of a Prospecting License to
the petitioner No. 1 herein for graphite over an area of 14 sq. kms. at
Taliha in West Upper Subansiri District, Arunachal Pradesh. Pursuant
thereto, the Deed of Prospecting License was executed by and between
the petitioner No. 1 and the State of Arunachal Pradesh on 28.05.2014.
(II) A perusal of the said Deed for Prospecting License reveals that
certain rights and licenses were granted to the Petitioner No. 1 for a
period of 3 years. Subsequent thereto, vide an order dated 08.08.2018,
the Secretary (Geology and Mining) of the Government of Arunachal
Pradesh renewed the said Prospecting License for a further period of
two years with effect from the 29.05.2017 i.e. up to 28.05.2019. The
deed for renewal of Prospecting License was executed on 09.08.2018. It
is relevant to take note of that with this renewal, the Prospecting
License granted to the Petitioner No.1 was extended till 28.05.2019.
(III) On 16.08.2019, the Managing Director of the petitioner No. 1
submitted the Mining Lease Application along with the Geological
Report, Forest Map, Mining Lease area map, Treasury Challan, Board
Resolution for Authorized Signatory and along with an affidavit and
requested for grant of a Mining Lease Letter of Intent for the area
wherein the Prospecting License was issued. The said Application was
Page No.# 10/92
filed taking benefit of Section 10A of the Mines and Minerals
(Development and Regulation) Act, 1957 ( for short referred to as 'the
Act of 1957') and in terms with Rule 7(1) of the Minerals (Other than
Atomic and Hydro Carbons Energy Minerals) Concession Rules, 2016,
(for short, "the Rules of 2016"). Along with the said application, the
Managing Director of the petitioner No. 1 had also deposited an amount
of Rs.24,80,000/-. On the very same date, the State Geologist,(Geology
and Mining) Government of Arunachal Pradesh had acknowledged the
receipt of the said application.
(IV) At this stage, it is relevant to mention that though the Prospecting
License was for an area of 14 sq. kms. but the application was for grant
of a Mining Lease for mining graphite over an area of 4.96 sq. kms. in
Taliha.
(V) On 21.08.2019, the Secretary (Geology and Mining) of the
Government of Arunachal Pradesh informed the Managing Director of
the petitioner No. 1 that the Government of Arunachal Pradesh had
approved the proposal for issue of a letter of intent for grant of Mining
Lease for graphite over an area of 4.96 sq. kms. in Taliha, Upper
Subansiri District in favour of the petitioner No. 1 for a period of 50
years. It was stipulated in the said communication that the petitioners
were required to ensure compliance and submission within 3 years from
the date of issue of the said letter and further extension of the said
period would be upon the discretion of the Government.It appears that
the said communication is in terms with Rule 7(6)(a) of the Rules of
2016 in as much as the compliance sought for were in terms with the
Page No.# 11/92
conditions mentioned in Rule 7(10) of the Rules of 2016. The
compliance sought for were as follows:
(a) Submission of Mandatory Mining Plan duly prepared by the RQP
and approved by the Indian Bureau of Mines.
(b) Obtain prior forest clearance under the Forest Conservation Act,
1980 from the Ministry of Environment, Forest and Climate
Change, Government of India.
(c) Obtain statutory clearances from various stakeholders before
execution of the Mining Lease Deed.
(d) The Petitioner No.1 was required to comply all the provisions of
the Act of 1957, MCR, MCDR, EPA, FCA and other guidelines
issued from time to time.
(e) Any new amendments made from time to time in the provisions
of the Acts and the Rules should also be complied strictly with by
the petitioners.
(VI) Admittedly, no compliance to the requirements was made by the
Petitioners. However, on 25.01.2021, the Managing Director of the
Petitioner No. 1 submitted a Mining Plan with all necessary Maps,
Sections and processing fees vide an Instrument No. 000078 of the
Kotak Mahindra Bank dated 25.01.2021 of Rs.1,25,000/- for Taliha
over an area of 4.96 sq. kms. of Upper Subansiri District, Arunachal
Page No.# 12/92
Pradesh for examination and approval. On the very date, the
petitioner also requested for execution of the Mining Lease Deed for
graphite in the area of Taliha, Upper Subansiri District, Arunachal
Pradesh. It is relevant to observe that there is nothing shown in the
writ petition that the State of Arunachal Pradesh had a system
established for preparation, certification and monitoring, with the
approval of the Central Government. Rather the State of Arunachal
Pradesh denies having such system as submitted by the Learned
Additional Advocate General.
(VII) The State of Arunachal Pradesh without taking note of the
communication dated 21.08.2019 and the mandate of Rule 7(10) of
the Rules of 2016, issued a communication dated 28.01.2021 through
the Secretary (Geology and Mining) of the Government of Arunachal
Pradesh informing the Managing Director of the Petitioner No. 1 for
payment of the Stamp Duty and Registration Fee for execution of the
Mining Lease Deed in respect of the graphite over an area of 4.96 sq.
kms. in Taliha, Upper Subansiri District, Arunachal Pradesh. It was
further mentioned that the applicants have to pay an amount of
Rs.10,63,111.42/- as stamp duty and an amount of Rs.3,54,370.47/-
as registration charges.
(VIII) On receipt of the said communication, one of the Directors of
the petitioner No. 1 informed vide a communication dated 29.01.2021
addressed to the Secretary,(Geology and Mining), Government of
Arunachal Pradesh about the payment of the stamp duty and further
as to who would be signing the Mining Lease and requested for
Page No.# 13/92
registration of the same in the name of the petitioner No. 1. On the
very same day, i.e. on 29.01.2021, the Secretary,(Geology and
Mining) Government of Arunachal Pradesh had informed that in terms
with Section 5 (2) of the Act of 1957, the Government of Arunachal
Pradesh granted the Mining Lease for graphite over an area of 4.96
sq. kms. in Taliha area, Upper Subansiri District in favour of the
Petitioner No. 1 for a period of 50 years, in accordance with the
provisions of the existing Rules subject to compliance of the
provisions of the Act of 1957 and the Rules made therein under
including Forest Conservation Act, 1980 and other laws in force from
time to time. It is further seen that on that very same day, the Deed
of Mining Lease was executed by and between the State of Arunachal
Pradesh and the Petitioner No. 1.
(IX) It is however relevant to mention at this stage that though
in the communication dated 21.08.2019, it was mentioned that the
Petitioners were required to submit the mandatory mining plan
prepared by the RQP and approved by the Indian Bureau of Mines.
But without submission of the Mining Plan as envisaged in the
communication dated 21.08.2019, the Deed of Mining Lease was
executed on the 29.01.2021. Be that as it may, the draft of mining
plan was submitted by the Petitioner No. 1 to the Indian Bureau of
Mines only on 02.03.2021 i.e. after the execution of the Deed of
Mining Lease.
(X) The records further reveal that on 20.05.2021, the
Regional Controller of Mines of the Indian Bureau of Mines had
Page No.# 14/92
provisionally approved the Mining Plan along with the Progressive
Mine Closure Plan for the period 2020-21 to 2024-25 in respect to the
Taliha Graphite Deposit over an area of 496 hectares which
corresponds to 4.96 sq. kms. The said provisional approval was
subject to the various conditions as mentioned in the provisional
approval letter dated 20.05.2021. The records further reveal that after
various correspondences by and between the Indian Bureau of Mines
and the petitioner No. 1, on 12.08.2021, the Regional Controller of
Mines issued the approval of the Mining Plan along with Progressive
Mine Closure Plan in respect of the Taliha Graphite Deposit over an
area of 496 hectares situated at Village Taliha in the Upper Subansiri
District. It is very relevant to take note of the conditions stipulated in
the said approval letter dated 12.08.2021. The said conditions being
relevant are reproduced herein under:
"1. That the Mining Plan is approved without prejudice to any other laws
applicable to the mine/area from time to time whether made by the Central
Government, State Government or any other authority and without
prejudice to any other order or direction from any court of competent
jurisdiction.
2. The proposal shown on the plates and/or given in the document is basd on
the lease map/sketch submitted by the applicant/lessee and is applicable
from the date of approval.
3. It is clarified that the approval of the Mining Plan does not in any way imply
the approval of the Government in terms of any other provisions of the
Mines & Minerals (Development & Regulation) Act, 1957 or the Mineral
Concession Rules, 1960 or any other laws including Forest (Conservation)
Page No.# 15/92
Act, 1980, Environment (protection) Act, 1986 and the rules and regulations
made there under.
4. Indian Bureau of Mines has not undertaken verification of mining lease
boundary on the ground and does not undertake any responsibility
regarding correctness of the boundaries of the lease hold area shown on
the ground with reference to the lease map and other plans furnished by
the applicant/lessee.
5. At any stage, if it is observed that the information furnished, data
incorporated in the document are incorrect or misrepresent facts, the
approval of the document shall be revoked with immediate effect.
6. If this approval conflicts with any other law. Or court order/direction under
any statute, it shall be revoked immediately.
7. The approval is restricted in respect of the proposal given in the document
for a period of five financial years from the execution of lease.
8. The approval for mining operations and associated activities are restricted
to Mining lease area only.
9. A copy of EIA/EMP as approved by MOEF (Ministry of Environment & Forest)
shall be submitted to IBM within one month of its approval along with a
copy of their approval letter.
10. The approval of mining plan is subject to the compliance of Rule 12(1)(v) of
MCR, 2016 regarding construction and maintenance of boundary pillars.
11. A copy of Mine development and production agreement signed between the
Page No.# 16/92
lessee and the State Government shall be submitted to this office before
commencement of Mining operation."
(XI) Subsequent thereto, on 07.01.2022, the Regional Controller of
Mines of the Indian Bureau of Mines issued the impugned
communication dated 07.01.2022 whereby the approval of the Mining
Plan along with the Progressive Mining Closure Plan as was granted on
12.08.2021 in favour of the Petitioner No 1 was revoked. Therefore,
being aggrieved, the Petitioners have approached this Court by filing
the instant writ petition.
4. The facts in respect to the remaining four writ petitions are similar and for
the sake of brevity, this Court would not repeat the same. However, the
distinguishing factors are narrated herein below:
(I) In this writ petition, the prospecting license was granted in
respect to a mine for graphite over an area of 5 sq. Kms. at Tai-
Techidoni, Lepa Rada in Upper Subansiri District, (then West Siang
District), Arunachal Pradesh.
(II) It is further seen that in the instant case, the order of grant of
Mining Lease dated 29.01.2021 and the Deed of Mining Lease dated
29.01.2021 were in respect of 1.96sq. kms in Tai- Techidoni graphite
deposit over an area of 1.96 sq. kms. in Village Tai-Techidoni, Post-
Tirbin, Tehsil-Maro in Lepa Rada and Upper Subansiri District of the
Arunachal Pradesh.
Page No.# 17/92
(III) In this case the approval of the Mining Plan was granted on
17.08.2021 and the said approval of the mining plan was revoked on
07.01.2022.
(I). The petitioners in WP(C) No. 1844/2022 are also the writ
petitioners in the instant writ petition.
(II). In the instant case, the Prospecting License was granted for
graphite over an area of 5 sq. kms. in Bopi Area, Kamle District (then in
West Upper Subansiri District), Arunachal Pradesh.
(III). Subsequently, the order of grant of mining lease dated 29.01.2021
was issued and the Deed of Mining Lease was executed on 01.02.2021
over an area of 0.37 square kilometers for graphite.
(IV) The approval of the Mining Plan was granted on 16.08.2021 and it
was revoked on 07.01.2022.
(I). The Writ Petitioners in WP(C) Nos. 1844/2022 and 1850/2022 are
also the writ petitioners in WP(C) No. 1857/2022.
(II). In the instant case, the Prospecting License was granted on
24.02.2014 in respect to mining for graphite over an area of 4 sq kms.
at Dodeserum, Lower Subansiri District, Arunachal Pradesh.
(III). Subsequent thereto, the order of grant of mining lease was issued
on 29.01.2021 and the Deed of Mining Lease dated 29.01.2021 was
Page No.# 18/92
executed for graphite over an area of 1.83 square kilometers in
Dodeserum, Post- Yazali, Tehsil-Ziro in Lower Subansiri District of
Arunachal Pradesh on 29.01.2021.
(IV).The approval of the Mining Plan was granted by the Regional
Controller of Mines on 13.08.2021 which was revoked by the impugned
order dated 07.01.2022.
(I) In the instant case, the Prospecting License was granted on
24.02.2014 for graphite over an area of 13 square kilometers near Laa-
Lamdak Area, Kamle District, (then Upper Subansiri District), Arunachal
Pradesh.
(II) The order of grant of mining lease was issued on 29.01.2021 and
the Deed of Mining Lease was entered into on 29.01.2021 for graphite
for over an area of 0.79 sq. kms. in La-Lamdak, Post- Muri B.O, Tehsil-
Puchi Geko in Kamle District of Arunachal Pradesh.
(III).The approval of the Mining Plan was granted on 16.08.2021, which
was revoked on 07.01.2022.
5. Considering the similarity of the facts in the present batch of writ petitions,
this Court finds it relevant to incorporate the details in the writ petitions in the
following charts which would help in adjudication of the issues involved in the
batch of writ petitions.
Page No.# 19/92
PARTICULARS WP(C) No. WP(C) No. WP(C) WP(C) WP(C) No.
1104/2022 1844/2022 No. No. 1861/2022
STHENOS TASSO TASSO TASSO SKAMORD
CEMENT ALLOYS ALLOYS ALLOYS MINING
Taliha Tai- Bopi Dodeseru Laa-Lamdak
Techidoni m
496 Ha 37Ha 79 Ha
196 Ha 183 Ha
24.02.2014 24.02.2014 24.02.2014 24.02.2014 24.02.2014
1. Prospecting
license (PL) for
Graphite granted to
the petitioner for 3
years by State of
Arunachal Pradesh.
2. Deed for PL 28.05.2014 28.05.2014 28.05.2014 28.05.2014 28.05.2014
executed between
Petitioner and State.
3. Renewal of PL for 08.08.2018 08.08.2018 08.08.2018 08.08.2018 08.08.2018
2 years w.e.f.
29.05.2017 by the
State.
4. Deed of Renewal 09.08.2018 09.08.2018 09.08.2018 09.08.2018 09.08.2018
of PL executed
between Petitioner
and State.
5. Mining Lease (ML) 16.08.2019 16.08.2019 16.08.2019 16.08.2019 16.08.2019
application
submitted under
Rule 7(1) of
Mineral CR, 2016
within 3 months of
date of expiry of PL
(28.05.2019).
Page No.# 20/92
6. Acknowledgemen 16.08.2019 16.08.2019 16.08.2019 16.08.2019 16.08.2019
t under Rule 7(2)
of MCR provided to
the Petitioners.
7. Payment of 16.08.2019 16.08.2019 16.08.2019 16.08.2019 16.08.2019
Application fees
under Rule 7(3) of
MCR along with ML
application.
8. Letter from State 21.08.2019 21.08.2019 21.08.2019 21.08.2019 21.08.2019
intending to grant a
mining lease for 50
years and seeking
various compliances
as mandated in Rule
7(10) of the Rules of
2016.
9. Mining Plan 25.01.2021 25.01.2021 25.01.2021 25.01.2021 25.01.2021
submitted to the
State Govt. for
approval, with a
copy to the IBM.
10 Petitioner requested 25.01.2021 25.01.2021 25.01.2021 25.01.2021 25.01.2021
. the State to execute
a Lease Deed, since
the Petitioners had
submitted mining
plans to the IBM and
had applied for
statutory clearances
(EC).
11 Order Grant of 29.01.2021 29.01.2021 29.01.2021 29.01.2021 29.01.2021
. Mining Leases to
Petitioners by State
of AP.
Page No.# 21/92
12 Deed of Mining 29.01.2021 29.01.2021 01.02.2021 29.01.2021 29.01.2021
. Lease executed
between the
Petitioners and the
State
13 IBM acknowledged 02.03.2021 23.03.2021 23.03.2021 23.03.2021 23.03.2021
. receipt of Mining
Plan
20.05.2021 20.05.2021 19.05.2021 19.05.2021 20.05.2021
14 Provisional
. approval of
Mining Plan
granted by IBM
considering
lockdown.
15. Mining Plan 12.08.2021 17.08.2021 16.08.2021 13.08.2021 16.08.2021
approved by IBM.
16. Order of 07.01.2022 07.01.2022 07.01.2022 07.01.2022 07.01.2022
Revocation of
Mining Plan
INTIAL INTERIM ORDERS PASSED BY THIS COURT
6. The records reveal that this Court upon the instant writ petitions filed and
moved issued notices on various dates and further stayed the operation of the
impugned communications dated 07.01.2022 revoking the approval of the
Mining Plans along with the Progressive Mine Closure Plans issued by the
respondent No. 3 till the returnable date. The said interim orders thereafter
continue. The record further reveals that all the respondents have filed their
affidavit-in-oppositions.
Page No.# 22/92
AFFIDAVIT-IN-OPPOSITION FILED BY RESPONDENT NOS. 1, 2 AND
7. In the affidavit in opposition filed on behalf of the Indian Bureau of Mines, it
was stated that Section 5 of the Act of 1957 impose restrictions on the grant
of Prospecting Licenses and Mining Leases. It was mentioned that Section
5(2)(a) of the Act of 1957 categorically stipulated that the State government
shall not grant any Mining Lease, unless it is satisfied that there is evidence to
show the existence of mineral contents in the area for which the application
for a Mining Lease had been made in accordance with such parameters as
may be prescribed by the Central Government. It was further averred that in
terms with Section 5 (2)(b) of the Act of 1957, unless there is a Mining Plan
duly approved by the Central Government or by the State Government, in
respect of such category of mines as may be categorized by the Central
Government for the development of the mineral deposits in the area
concerned, no Mining Lease can be granted. It was further mentioned that
the amendments so made to the Act of 1957 by the Mines and
Minerals(Development and Regulation)(Amendment) Act, 2015 (for short, "the
Amending Act of 2015"), the Mineral Concession Grant Policy changed from
first come, first grant, to auction of mineral concessions with the aim of (i)
eliminating discretion, (ii) improving transparency in the allocation of mineral
resources, (iii) simplifying procedures,(iv) eliminating delay on administration,
so as to enable expeditious and optimum development of mineral resources of
the country,(v) obtaining for the Government an enhanced share of the value
of the mineral resources and (vi) attracting private investments and latest
Page No.# 23/92
technology. It was mentioned that the State of Arunachal Pradesh had
executed on 29.01.2021, Deed of Mining Lease without having an approved
Mining Plan which was in contravention to Section 5(2)(b) of the Act of 1957
and also in contravention of Rule 7(10)(c) of the Rules of 2016. It was further
mentioned that as the Deed of Mining Lease was executed without due
compliance to Section 5(2)(b) of the Act of 1957 and Rule 7(10)(c) of the
Rules of 2016, the same was void and had no effect as per Section 19 of the
Act of 1957.
8. The Respondent Nos. 1,2 & 3 stated that the Mines and Minerals
(Development and Regulation)(Amendment) Act, 2021 (hereinafter for short
referred to as,"the Amending Act of 2021") came into force with effect from
28.03.2021. As per Section 13 of the Amending Act of 2021, by which Section
10A (2)(b)of the Act of 1957 was amended thereby, the cases under that
Clause including pending cases, the right to obtain a Prospecting License
followed by a Mining Lease or a Mining Lease, as the case may be, lapsed on
the date of commencement of the Amending Act of 2021. It was therefore
stated that in the light of the Amending Act of 2021, as there was no mining
lease executed in accordance with Section 5(2)(b) of the Act of 1957 before
the date of commencement of the Amending Act of 2021, the Mining Plan
approved by the Office on the basis of the Letter of Intent issued for fresh
grant of a Mining Lease falling under the saved cases of the erstwhile Section
10A (2)(b) of the Act of 1957 had become infructuous. It was further
mentioned that the approval of the Mining Plan was subject to the condition
that the Mining Plan was approved without prejudice to any other law to the
mine area from time to time, whether made by the Central Government, State
Government or any other Authority and without prejudice to any order or
Page No.# 24/92
direction from any Court of competent jurisdiction. Further to that, it was also
mentioned that the condition No. (6) of the approval letter to the effect that if
the approval conflicts with any other law or Court's order/direction under any
statute, it shall be revoked immediately and as such, the Mining Plan earlier
approved was revoked on 07.01.2022 as it conflicted with the provisions of
Section 5(2)(b) of the Act of 1957.
9. It was further mentioned in the said affidavit-in-opposition that the Deputy
Secretary (Geology and Mining), Government of Arunachal Pradesh had
written a letter to the Secretary, Ministry of Mines, Government of India dated
14.10.2021 whereby it was informed that the Provisional Mining Leases in
respect of five mineral blocks were granted by the State Government subject
to compliance of the statutory clearance/permission. The names of the
mineral blocks pertaining to the mines were mentioned in the said letter. It
was further stated that in the said communication that all the five cases fell
under Section 10A(2)(b) of the Act of 1957 and statutory clearance in respect
to the said lease are yet to be obtained by the mineral concession holders.
Further to that, the Secretary (Geology and Mining), Government of Arunachal
Pradesh had written another letter to the Additional Secretary Ministry of
Mines, Government of India on 25.10.2021 informing that the Provisional
Mining Leases were granted in respect of five numbers of graphite blocks and
the Provisional Mining Lease Deeds have been executed on 29.01.2021. It
was mentioned in the said communication that the final approval letter of the
Mining Plan in respect of the five cases which were received from the Indian
Bureau of Mines and in such case, a clarification was sought as to whether
the Mining Plan submitted after 28.03.2021 i.e., after the Amending Act of
2021 was acceptable and whether the final Mining Lease may be granted to
Page No.# 25/92
such provisional Mining Lease holders.
10. It was further stated in the affidavit in opposition that upon receipt of the said
communications from the Government of Arunachal Pradesh, the Ministry of
Mines issued a letter dated 27.12.2021 to the Controller General (CG), Indian
Bureau of Mines with detailed analysis of the situation and requested the
Controller General (CG), Indian Bureau of Mines to inquire as to how the
approval of a Mining Plan was granted in these lapsed cases after the
Amending Act of 2021 and to take necessary corrective measures accordingly.
11. In the affidavit in opposition, it was mentioned that upon enquiry being made,
the then Regional Controller of Mines, Guwahati, one Shri K.K. Tardia, who
had approved the Mining Plans in contravention of the provisions of the Act of
1957 was immediately put under suspension on 31.12.2021. Further to that,
the Ministry of Mines vide another order dated 29.03.2022 extended the
period of suspension of the said Shri K.K. Tardia for another 180 days beyond
30.03.2022 or until further orders, whichever is earlier. It was further stated
that the Ministry of Mines had initiated corrective and disciplinary actions
against its erring officials.
12. In the said affidavit-in-opposition, it was averred that if the petitioners in the
writ petitions were aggrieved by the impugned orders dated 07.01.2022, the
petitioners ought to have filed a revision application/petition before the
Controller of Mines, East Zone, IBM Kolkata and thereafter before the Chief
Controller of Mines, Indian Bureau of Mines, Nagpur. However, the petitioners
despite having an efficacious remedy in terms of Rule 16(5) of the Rules of
2016 have approached this Court by filing the instant writ petitions. The
respondent Nos. 1 to 3 had in the affidavit-in-opposition also denied to the
Page No.# 26/92
various statements and allegations made in the writ petitions.
AFFIDAVIT-IN-REPLIES FILED BY THE PETITIONERS TO THE
13. To the said affidavit-in-opposition, an affidavit-in-reply was filed by the
petitioners wherein the petitioners reiterated their statements made in the
writ petitions and denied the contents of the affidavit-in-opposition. On the
question of maintainability of the writ petitions, it was stated that the Indian
Bureau of Mines lacked jurisdiction inasmuch as the State Government had
not taken any steps towards cancellation of the Mining Lease. Under such
circumstances, it was stated that as the action on the part of the respondent
Nos. 1, 2 and 3 was without jurisdiction, the writ proceedings were
maintainable. It was categorically mentioned that the power conferred upon
the Regional Controller of Mines was only for approval of Mining Plans and the
said official did not have the power to revoke the Mining Plan and in that
respect have referred to a Notification dated 18.05.2016, issued by the
Controller General (CG) of the Ministry of Mines stipulating that an amount of
Rs. 25,000/- has to be submitted along with the Mining Plan to the Indian
Bureau of Mines for approval.
14. It was further mentioned that Rule 7(6) of the Rules of 2016 provides that if
the State Government is satisfied that the precondition of Section 10A (2)(b)
are met, it may grant the mining lease. Rule 7(11) of the Rules of 2016
contemplates that an applicant shall execute a Mining Lease Deed after
certain preconditions set out in Rule 7(10) are met. It was stated in the said
affidavit-in-reply that if these two concepts are treated to be synonymous it
would render Rule 7(11) otiose. It was further mentioned that the Amending
Page No.# 27/92
Act of 2021 whereby two provisos to Section 10A(2)(b) of the Act of 1957
were inserted pertains to only pending cases and this aspect of the matter
can be ascertained from the fact that the Parliament did not contemplate
lapsing for mere absence of an executed lease deed after a grant is extremely
clear from paragraph 4 (vi) of the Statement of Objects and Reasons of the
Mines and Minerals (Development and Regulation), Amendment Bill 2021,
which expressly employ the words "not yet granted" as opposed to "not yet
executed" while setting out the intention behind the newly inserted proviso
which deals with lapsing.
AFFIDAVIT-IN-OPPOSITIONS FILED BY THE STATE OF ARUNACHAL
PRADESH
15. The record further reveals that separate affidavit-in-opposition were filed by
the respondent No. 4 in the batch of writ petitions, thereby supporting the
impugned order dated 07.01.2022. It was further mentioned in the affidavit-
in-opposition that the Department of Geology and Mining had moved the
proposal for cancellation of the said Provisional Mining Lease because the
condition as stipulated in Rule 7(10) of the Rules of 2016 should have been
complied with before the execution of the said Mining Lease Deed. It was
further mentioned that the State Government, having taken cognizance of the
mistake which was inadvertently and erroneously made in granting the Mining
Lease, had put up the matter on 27.01.2022 for necessary action which is
under process.
AFFIDAVITS-IN-REPLY FILED BY THE PETITIONERS TO THE
AFFIDAVITS OF THE STATE OF ARUNACHAL PRADESH
Page No.# 28/92
16. To the said affidavit-in-opposition, respective affidavit-in-reply were filed by
the petitioners which were similar in content to the affidavit-in-reply filed to
the affidavit-in-opposition filed by the respondent Nos. 1, 2 and 3. It was
further mentioned that the State of Arunachal Pradesh have misunderstood
and misinterpreted the Amendment to Section 10A(2)(b) of the Act of 1957
by the Amending Act of 2021 by conflating the words "grant" with "execution"
of a mining lease deed. It was specifically mentioned that the petitioners have
a valid grant in terms with Section 7(6) of the Rules of 2016 much prior to the
coming into force of the Amending Act of 2021. It was further mentioned that
the Mining Plan is not a prerequisite for grant of a Mining Lease which is clear
from Rule 7 and, more particularly, Rule 7(6) of the Rules of 2016. It was
admitted in the said affidavit-in-reply, more particularly, at paragraph No. 27
(f) that the petitioners seeks to comply with Section 5 (2)(b) before the
execution of the lease deed by proceeding under the newly added proviso
inserted to Section 5(2)(b) of the Act of 1957. It was mentioned that it is
under such endeavor that the petitioners submitted a Mining Plan to the State
Government on the 25.01.2022, the same was accepted without demur and
there was no suggestion whatsoever from the State Government that it did
not have the requisite system in place to accept the petitioners' Mining Plans.
It was further mentioned that the State followed up and participated in the
process of approval of a Mining Plan and took multiple steps that clearly gave
the petitioners the impression that the State had in its place, a system
contemplated in the proviso to Section 5(2)(b) of the Act of 1957.
SUBMISSIONS ON BEHALF OF THE PETITIONERS
17. Let this Court now take note of the submissions so made by the learned
Page No.# 29/92
counsels appearing on behalf the Petitioners. Mr. D. Saikia and Mr. C.P.
Sharma, the learned Senior Counsels appearing on behalf of the petitioners in
the instant batch of writ petitions submitted as under:
(I) The materials in record would show that the petitioners in the instant
batch of writ petitions were issued Prospecting Licenses for the purpose of
undertaking prospecting operations, meaning thereby for carrying out
operations for the purpose of exploring, locating or proving mineral deposits.
The said Prospecting Licenses were issued initially for a period of 3 years
which was subsequently extended for another period of two years. The said
Prospecting Licenses accordingly were valid up till 28.05.2019. Within 3
months from the date of expiry of the Prospecting Licenses, the petitioners in
the instant batch of writ petitions have duly submitted applications seeking
Mining Leases along with the necessary documents. It was submitted that in
terms with Section 10A(2)(b)(iv) of the Act of 1957, an application can be
submitted for grant of a Mining Lease within a period of 3 months prior to the
expiry of a Prospecting License. Upon submission of the said applications, the
same were duly acknowledged on the very date and there upon Letters of
Intent were issued on 21.08.2019 on behalf of the State Government by the
Department of Geology and Mining informing that the Government was
pleased to approve the proposal for issuance of a Letter of Intent for grant of
a Mining Lease for graphite for a period of 50 years. It is further mentioned
that in the said communications dated 21.08.2019 issued to all of the
petitioners, there were directions seeking compliance within a period of 3
years, certain formalities as stated therein.
(II). In terms of the proviso to Section 5(2)(b) of the Act of 1957, the
Page No.# 30/92
petitioners submitted the Mining Plan believing that the State of Arunachal
Pradesh had the system established, for preparation, certification and
monitoring of such plan.The learned Senior Counsels further submitted that
the petitioners have also requested for execution of the Mining Lease Deed.
The State of Arunachal Pradesh had duly informed the petitioners herein vide
communications that in exercise of the powers conferred by Sub-Section (2)
of Section 5 of the Act of 1957, the State of Arunachal Pradesh had granted
the Mining Lease for graphite to the petitioners in respect to the areas
wherein their application seeking Mining Leases were sought for. It is the
submission on behalf of the Learned Senior Counsels that these
Communications all dated 29.01.2021 are infact orders of grant of mining
leases to the Petitioners in terms with Rule 7(6)(a) of the Rules of 2016. The
Learned Senior counsels categorically submitted that the Petitioners herein do
not rely upon the Deeds of Mining Lease which were executed pursuant to the
Orders dated 29.01.2021 and as per them, the Deeds of Mining Leases could
not have been executed without compliance to Rule 7(10) of the Rules of
2016.
(III).The learned Senior Counsels further submitted that a perusal of Rule
7(6) of the Rules of 2016 would show that it stipulates the grant of a Mining
Lease and as such, the communications dated 29.01.2021 would show that
the State of Arunachal Pradesh have already granted the Mining Leases.
(IV).The learned Senior Counsels appearing on behalf of the petitioners
further submitted that pursuant to the orders dated 29.01.2021, all the
petitioners submitted their mining plan for approval with the respondent No.
2, which was duly acknowledged on 02.03.2021, in the case of the writ
Page No.# 31/92
petitioners in WP(C)No. 1104/2022, and in respect to the other writ
petitioners on 18.03.2021. Thereupon, the Indian Bureau of Mines had carried
out joint inspections on various dates and in the month of May, 2021, all the
petitioners were issued provisional approvals of their Mining Plans. The
learned Senior Counsels further submitted that there was a rigorous scrutiny
being carried by the respondent No. 3, and thereupon on 12.08.2021, the
approvals were granted. The learned Senior Counsels further submitted that
none of the condition so mentioned in the said approvals of the Mining Plan
by the Indian Bureau of Mines were violated by the petitioners. Be that as it
may, without any notice, the impugned communications were passed on
07.01.2022 in all the cases. It was therefore submitted that the impugned
order suffers from lack of jurisdiction as well as were in violation to the
Principles of Natural Justice and as such, the writ petitions so filed were
maintainable.
(V). The learned Senior Counsels further submitted that the Indian Bureau of
Mines role is specifically delineated in Chapter V of the Rules of 2016 and,
more particularly, Rules 16 and 17 of the said Rules. The learned Senior
Counsels submitted that in the website of the Indian Bureau of Mines, it
unambiguously acknowledges that the functions of the Indian Bureau of
Mines are regulatory in nature and are restricted only to approval and
implementation of the Mining Plans with a view to ensure scientific and
suitable mining. The learned Senior Counsels drawing the attention of this
Court to the Gazette Notifications dated 18.05.2016, which was enclosed to
the affidavit-in-reply filed by the petitioners submitted that from a perusal
thereof would show that the source of the statutory power to issue the
impugned order has to be traced to Section 5(2)(b) which is however
Page No.# 32/92
circumscribed by Rules 16 and 17 of the Rules of 2016. It was further
submitted that recently the Madhya Pradesh High Court in the case of
Jaykaycem (Central) Ltd. Vs. Union of India & Others reported in (2022) SCC
OnLine MP 6000 had categorically observed that the Indian Bureau of Mines
does not have the power to review/recall a Mining Plan and that Section 21 of
the General Clauses Act, 1897 could not also be resorted to. It was submitted
that the Indian Bureau of Mines have categorically admitted to the said
position as reflected in the said judgment at paragraph No. 9 and as such,
without having challenged the said judgment, the Indian Bureau of Mines
stand regarding lack of jurisdiction to revoke a Mining Plan, had attained
finality.
(VI). It was also submitted that the Indian Bureau of Mines does not have the
authority over the process of grant of Mining Lease and therefore cannot
comment upon or interpret the validity of the grant of a Mining Lease. It was
further submitted that the Competent Authority i.e. the State of Arunachal
Pradesh had not till date decided that the petitioners' Mining Leases were void
in terms with Section 19 of the Act of 1957. It was submitted that if an order
is void it is first required to be set aside by a Competent Court of law and
cannot be declared so in a collateral proceedings and in absence of the
Authorities who were the authors thereof. In that regard, reference was made
to the judgment of the Supreme Court in the case of M. Meenakshi & Others
vs. Metadin Agarwal (D) by Lrs. and Others reported in (2006) 7 SCC 470. It
was further submitted that the State Government who had the authority to
grant the Mining Lease have not questioned the grant of the Mining Lease. It
was further stated that the State Government had merely cancelled the
Mining Lease Deed on the ground that the execution had taken place before
Page No.# 33/92
the condition under Rule 7(10) of the Rules of 2016 had been fulfilled.
(VII).The learned Senior Counsels submitted that the respondent No. 3 while
issuing the impugned communications, have completely misconstrued the
proviso to Section 10A (2)(b) of the Act of 1957 as amended by the Amending
Act of 2021.The learned Senior Counsels submitted that a perusal of
paragraph 4 (vi) of the Statements of Objects and Reasons of the Mines and
Minerals (Development and Regulation)Amendment Bill, 2021 would show
that only those pending cases would lapse which have not resulted in the
grant of a Mining Lease. It was submitted that in the Statements of Objects
and Reasons,what is mentioned is "have not resulted in grant of a Mining
Lease" and not, have not resulted in execution of a Mining Lease Deed. The
learned Senior Counsels submitted vide the orders dated 29.01.2021, the
Government of Arunachal Pradesh had already granted the Mining Lease that
too much prior to coming into effect of the Amending Act of 2021 and as
such, the first proviso to Section 10A(2)(a)(b) did not apply.
(VIII).To distinguish the same, the learned Senior Counsels submitted that
grant of a Mining Lease and Execution of a Mining Lease Deed are two
distinct legal events. This aspect of the matter is clear from the use of the
term "grant" and phrase "executed lease deed" in various provisions of the
Act of 1957 and the Rules made therein under. In that regard, reference was
made to Rule 31(2) of the Mineral Concession Rules, 1960 (for short 'the
Rules of 1960') which referred to the grant of a Mining Lease and the
execution of a lease deed separately and it is the submission of the learned
Senior Counsels that Rule 7(6) and Rule 7(11) of the Rules of 2016 retains
this distinction by placing the two in separate Sub-Rules and at distinct
Page No.# 34/92
juncture of the process for obtaining a Mining Lease. In that regard,
references were made to the judgment of the Supreme Court in the case of
Gujarat Pottery Works Vs. B.P. Sood, Controller of Mining Leases for India
reported in AIR (1967) SC 964 wherein the Supreme Court observed that the
granting of a lease is different from the formal execution of a lease deed. It
was observed by the Supreme Court as submitted by the learned Senior
Counsels that granting of a lease signifies sanctioning of the lease, whereas
execution of the formal lease deed is only compliance with the legal
requirements to make the grant legally enforceable. It was further submitted
that this judgment of the Supreme Court in the case of Gujarat Pottery Works
(supra) have been applied in the context of the word "grant" as used in the
Rules of 2016 by two Division Bench judgments of the Karnataka High Court
in the case of M/S Aane Mines and Minerals Vs. State of Karnataka reported in
(2019) SCC OnLine Karnataka 3791 and Smt. Meena Lakhotia Vs. State of
Karnataka and others reported in AIR OnLine (2019) Karnataka 919. It was
therefore submitted by the learned Senior Counsels appearing on behalf of
the petitioners that in view there being a grant of a Mining Lease in favour of
the petitioners, the respondent No. 3 could not have revoked the Mining Plan
on the ground that the Mining Lease having not been executed before the
commencement of the Amending Act of 2021, had become infructuous.
(IX). The learned Senior Counsels submitted that the interpretation so
given to Section 5(2)(b) in the impugned communications by the respondent
No 3 are erroneous, taking into account that prior to the amendment made by
the Amending Act of 2015, Sub-Clauses (a) and (b) of Sub-Section (2) of
Section 5 were connected by the word "and" which however was omitted by
the Amending Act of 2015 and as such, if one of the two conditions as
Page No.# 35/92
stipulated in Sub-Clauses (a) and (b) of Section 5(2) is satisfied, a Mining
Lease can be very well granted by the State Government. On the basis of the
above submissions, the learned Senior Counsels submitted that the impugned
communications dated 07.01.2022 by which the Mining Plans were revoked in
the case of the petitioners are required to be interfered with.
SUBMISSION ON BEHALF OF THE COUNSEL FOR RESPONDENT NOS.
1, 2 AND 3
18. Mr. U.K. Goswami, the learned Central Government Counsel appearing on
behalf of the respondent Nos. 1, 2 and 3 submitted as follows:
(I) A proposal to grant a Mining Lease and execution of a lease deeds falls
solely within the jurisdiction of the State Government and the Indian Bureau
of Mines has no jurisdiction to invalidate either of them. However, as per
Section 18 of the Act of 1957, it shall be a duty of the Central Government to
take all such steps as may be necessary for conservation, systematic
development of mineral in India. The learned Central Government Counsel
submitted that in the present case, the Mining Lease was granted by the
State Government vide an order dated 29.01.2021 which was contrary to
Section 19 of the Act of 1957 which statutorily mandated that any mineral
concession granted, renewed or acquired in contravention of the provisions of
the Act of 1957 or any Rules or Orders made there under shall be void and of
no effect. The learned Central Government Counsel therefore submitted that
grant of the Mining Leases in contravention to Section 5(2)(b) of the Act of
1957 and Rule 7 of the Rules of 2016 to the petitioners were therefore null
and void.
Page No.# 36/92
(II). The learned Central Government Counsel further submitted that the
Indian Bureau of Mines have not revoked the Mining Lease but revoked the
approvals of the Mining Plans as per the conditions mentioned in the Approval
letter. The learned Central Government Counsel submitted that the petitioners
failed to satisfy the Condition No. (6) of the Approval letters to the effect that
if the approval conflicts with any other law or Court order/direction under any
statute it shall be revoked immediately.
(III).The learned Central Government Counsel submitted that prior approval
of the Mining Plan is mandatory as per Section 5(2)(b) of the Act of 1957
prior to the Amending Act of 2015 as well as post thereafter. He submitted
that the allegation of jurisdiction overreach on the ground that having
approved the Mining Plan, the Indian Bureau of Mines cannot on an
interpretation of law revoke the approval is not based on fact. He submitted
that there is no jurisdictional overreach by the Indian Bureau of Mines as it
had taken into cognizance of an erroneous grant of the Mining Lease and
non-compliance of the statutory requirements and therefore had
cancelled/revoked its own previous approval of the Mining Plan. It was
submitted that once the right to obtain a Mining Lease given under Section
10A(2)(b) of the Act of 1957 was removed by the Amending Act of 2021, the
related Rules with respect to the sanction have automatically lapsed.
(IV).The learned Central Government Counsel also submitted that the instant
batch of writ petitions ought not to be entertained on the ground of
availability of the alternative and efficacious remedy provided at Rules 16 of
the Rules of 2016.
Page No.# 37/92
SUBMISSION ON BEHALF OF THE COUNSEL FOR RESPONDENT NOS.
19. Mr. N.N.B. Choudhury, the learned Additional Advocate General of the State of
Arunachal Pradesh submitted that the instant batch of writ petitions ought not
to be entertained on the ground of availability of an alternative remedy as
stipulated in Rule 16 of the Rules of 2016. In addition to that, the learned
Additional Advocate General submitted that in terms with Section 5(2)(b) of
the Act of 1957 without there being a Mining Plan there cannot be a grant of
a Mining Lease. He submitted that a duly approved plan was not submitted
and inadvertently and erroneously the State of Arunachal Pradesh had
granted provisional Mining Lease which was bad in law and thus null and void.
In respect to the proviso to Section 5(2)(b) of the Act of 1957, the learned
Additional Advocate General submitted that there is no system established by
the State of Arunachal Pradesh for preparation, certification and monitoring of
such plan till date with the approval of the Central Government and such
system was not there at the time when the order dated 29.01.2021 were
passed in favour of the petitioners.
POINTS FOR DETERMINATION BEFORE THIS COURT
20. Upon hearing the learned counsels appearing on behalf of the parties and
upon perusal of the materials and records, the following points for
determination arise for consideration;
(i) Whether this Court should entertain the instant batch of writ petitions
in view of the availability of an alternative remedy in terms with Rule 16(5)
of the Rules of 2016?
Page No.# 38/92
(ii) Whether on the ground of no notice being issued prior to issuance of
the impugned orders of revocation dated 07.01.2022, should this Court
strike down the orders and refer the matter back to the Authorities to take
fresh decision?
(iii) Whether the orders dated 29.01.2021 and the Deeds of Mining Lease
entered into on 29.01.2021 can be said to be a grant of a mining lease and
if not, what is the effect of the said two documents?
(iv) Whether the Respondent No.3 had the jurisdiction and if so, was
justified in revoking the approval of the mining plan insofar as the
Petitioners are concerned?
(v) Whether this Court should interfere with the impugned communications
dated 07.01.2022 whereby the mining plans which were approved in favour
of the Petitioners were revoked?
(vi) What relief or reliefs are the parties entitled to in the present
proceedings?
ANALYSIS AND DETERMINATION
1ST POINT FOR DETERMINATION:
21. As noted above in the previous segments of the instant judgment, the
respondents have urged that the instant batch of writ petitions ought not to be
entertained by this Court in view of availability of an alternative and effective
Page No.# 39/92
remedy by virtue of Rule 16(5) as well as Rule 16(7) of the Rules of 2016. For
the purpose of deciding the said aspect, this Court finds it relevant to reproduce
Rule 16(5) and Rule 16(7) of the Rule of 2016 which are herein under:
"16.(5) Any person aggrieved by any order made or direction issued in respect of
mining plan by an officer of the Indian Bureau of Mines competent to approve mining
plans other than the Chief Controller of Mines, Indian Bureau of Mines may within thirty
days of the communication of such order or direction, apply to the authority to whom the
said officer is immediately subordinate, for the revision of the order or direction:
Provided that any such application may be entertained after the said period of thirty days
if the applicant satisfies the authority that he had sufficient cause for not making the
application within time.
(7) Any person aggrieved by an order made or direction issued by the Chief Controller of
Mines, Indian Bureau of Mines, concerning approval of mining plan may within thirty days
of the communication of such order or direction, apply to the Controller General, Indian
Bureau of Mines for a revision of such order or direction and his decision thereon shall be
final:
Provided that any such application may be entertained after the said period of thirty days,
if the applicant satisfies the Controller General, Indian Bureau of Mines that he had
sufficient cause for not making the application in time."
22. From a perusal of the above two quoted Sub-Rules of Rule 16 of the Rules of
2016, it would show that if any person is aggrieved by any order made or
direction issued in respect of the mining plan by an officer of the Indian Bureau
of Mines competent to approve mining plans other than the Chief Controller of
Mines, Indian Bureau of Mines, such person may, within 30 days of the
communication of such order or direction apply to the authority to whom the
said officer is immediately subordinate for revision of the order or direction. It is
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further seen from a perusal of Rule 16(7) of the Rules of 2016 that if any person
is aggrieved by an order made or direction issued by the Chief Controller of
Mines, Indian Bureau of Mines, concerning approval of mining plan may within
30 days of the communication of such order or direction apply to the Controller
General, Indian Bureau of Mines for a revision of such order or direction and his
decision shall be final.
23. The above two Sub-Rules provides an alternative remedy against the orders
dated 07.01.2022 passed by the Regional Controller of Mines i.e. the
Respondent No.3 in the writ petitions. It is however important to take note of
that in these writ petitions, the petitioners have assailed the impugned order
dated 07.01.2022 on various aspects and have raised questions in respect to the
interpretation to be given to Section 5(2)(b) of the Act of 1957 and the provisos
to Section 10A(2)(b) of the said Act of 1957 as inserted vide the Amending Act
of 2021. It is also noteworthy to mention that the challenge so made to the
impugned communications dated 07.01.2022 is also on the question of
jurisdiction of the Respondent No.3 to revoke the approval of a mining plan. In
addition to that, it is also relevant to take note of that these writ petitions have
been pending before this Court for the last three years where notices have been
issued and interim orders have been passed. Apart from that, it is also pertinent
herein to mention that the facts in the instant cases are not disputed. It is only
on the application of law which is the subject matter of consideration.
24. At this stage this Court finds it relevant to refer to a judgment of the Supreme
Court in the case of Godrej Sara Lee Ltd. Vs. Excise and Taxation Officer cum
Assessing Authority and Ors. reported in(2023) 109 GSTR 402 wherein the
Supreme Court in the said judgment dealt with the question as to when a writ
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petition can be entertained in spite of the availability of an alternative remedy.
The Supreme Court in the said judgment observed that there are exceptions
when a Writ Court would be justified in entertaining a writ petition despite the
party approaching having not exhausted the alternative remedy provided by the
statute. It was observed that the exceptions were
(i) where the writ petition sought enforcement of any of the
fundamental rights;
(ii) where there is a violation of the principles of natural justice;
(iii) where the order or the proceedings are wholly without jurisdiction;
(iv) where the vires of an Act is being challenged; and
(v) when the Court found the issue raised to be pristinely legal, requiring
determination by the High Court without putting the writ petitioner
through the mills of statutory proceedings in the hierarchy, or in other
words, when the controversy is purely a legal one and it does not involve
disputed questions of facts but only questions of law, then it should be
decided by the High Court instead of dismissing the writ petition on the
ground of an alternative remedy being available.
25. In view of the above law laid down by the Supreme Court and taking into
account the facts in the instant proceedings are not disputed which involves
the legal interpretation of Section 5(2)(b) of the Act of 1957 as well as the
provisos to Section 10A(2)(b) of the Act of 1957, it is the opinion of this Court
that the instant writ petition ought to be entertained rather than relegating
the petitioners to prefer revisions before the appropriate authority in terms of
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Rule 16(5) and 16(7) of the Rules of 2016. Additionally, this Court also finds it
appropriate to take note of that the petitioners herein have also challenged
the jurisdiction of the Respondent No.3 to revoke the approved mining plans
as would appear from the pleadings as well as the submissions so made by
the learned Senior counsels appearing on behalf of the petitioners. Under
such circumstances, it is the opinion of this Court that the instant batch of
writ petitions are required to be entertained.
2ND POINT FOR DETERMINATION:
26. The second point for determination is whether on the ground of no notice
being issued prior to issuance of the impugned orders of revocation dated
07.01.2022, should this Court strike down the orders and refer the matter back
to the Authorities to take fresh decision. The Petitioners have approached this
Court by not availing the statutory remedies on the ground that the legal
interpretation given by the Respondent Authorities to Section 5(2) and the
provisos to Section 10A(2)(b) of the Act of 1957 are flawed. Additionally, the
learned Senior Counsels for the Petitioners have argued on merits as would be
seen from the submissions recorded of the Petitioners herein above. Be that as
it may, this Court is of the opinion that this point for determination is required
to be considered after the determination of the third and fourth points for
determination framed herein above.
3RD POINT FOR DETERMINATION
27. The third point for determination pertains to as to whether the orders dated
29.01.2021 as well as the execution of the lease deed dated 29.01.2021 can be
said to be grant of a mining leases in the favour of the Petitioners and if not,
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what is the impact of the said two documents on the rights of the petitioners.
To analyse the said point for determination, it is relevant to take note of the
provisions of the Act of 1957 and the changes effected vide Amending Act of
2015 and the Amending Act of 2021.
28. This Court would first take note of some of the judgments of the Supreme
Court which led to amendments made to the Act of 1957 by the Amending Act
of 2015. In the case of Centre for Public Interest Litigation and Others Vs. Union
of India and Others reported in(2012) 3 SCC 1, the Supreme Court observed
that there was a fundamental flaw in the first-come-first-serve policy inasmuch
as it involved an element of pure chance or accident. It was observed that in
matters involving award of contracts or grant of licenses or permission to use
public property, the invocation of the first-come-first-serve policy had inherently
dangerous implications. This aspect assumes importance taking into account
that prior to the Amending Act of 2015, it was the Central Government who
had the ultimate control over the grant of licenses insofar as the mining of
major minerals was concerned. As per the procedure then existing, the State
Government would recommend the application submitted by an applicant for
grant of a mining lease to the Central Government and the Central Government
was given the power to grant or refuse the approval. The policy which was then
followed was the first-come-first-served policy. In the said judgment i.e. in the
case of Centre for Public Interest Litigation (supra) , the Supreme Court
categorically observed that the State and its agencies/instrumentalities must
always adopt a rational method for disposal of the public property and no
attempt should be made to scuttle the claims of the worthy applicants. It was
further observed that when it comes to alienation of scarce natural resources
like spectrum etc., it is the burden of the State to ensure that a non-
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discriminatory method is adopted for distribution and alienation in protection of
the national/public interest. The Supreme Court categorically observed in the
said decision that while transferring or alienating the natural resources, the
State is bound to adopt the method of auction by giving wide publicity so that
all eligible persons can participate in the said process.
29. In view of the opinion expressed in the case of Centre for Public Interest
Litigation (supra), a Presidential Reference was made under Article 143(1) of
the Constitution of India seeking consideration from the Supreme Court on
various questions and to submit Report. Amongst the various questions, one of
such question was whether the only permissible method for disposal of all
natural resources across all sectors and in all circumstances is by conduct of
auction. In the case of Natural Resources Allocation, IN Re, Special Reference
No.1 of 2012, the majority opinion rendered by His Lordship D.K. Jain, J. opined
that auction despite being a more preferable method of alienation/allotment of
natural resources, cannot be held to be a constitutional requirement or a
limitation for alienation of all natural resources and therefore every method
other than the auction cannot be struck down as ultra vires the constitutional
mandate. It was further opined that auction as a mode cannot be conferred the
status of a constitutional principle. Alienation of natural resources is a policy
decision and the means adopted for the same are thus Executive Prerogatives.
However, when such a policy decision is not backed by a social or welfare
measures and precious and scarce natural resources are alienated for
commercial pursuits of profit maximizing private entrepreneurs, adoption of
means other than those which are competitive and maximize revenue may be
arbitrary and face the wrath of Article 14 of the Constitution. It was further
observed that instead of prescribing or proscribing a method, a judicial scrutiny
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of the methods of disposal of the natural resource should depend on the facts
and circumstances of each case.
30. In view of the above judgments more particularly in the case of Centre for
Public Interest Litigation (supra), it was noticed that the method of first-come-
first-serve system of allocation of mineral concessions was discretionary and
decision making process was not transparent. It was realized that the process
of renewal of mining leases were acting as an obstacle in attracting large scale
investments in the mining sector. Additionally, the allocation of mineral
concessions was not generating any revenue to the Government other than
royalty. These factors have led to a slowdown in the grant of new concessions
and renewal of existing ones which consequently led to the mining sector
registering a decline in production affecting the downstream manufacturing
sector which largely depended on the raw materials provided by the mining
sector. On the basis of the above consideration, the Mining Ordinance, 2015
was passed on the 12.01.2015 which was subsequently replaced by the
Amending Act of 2015.
31. In the case of Bhushan Power and Steel Ltd. Vs. S.L. Seal, Additional Secretary
(Steel and Mines), State of Odisha and Others reported in (2017) 2 SCC 125, the
Supreme Court specifically dealt with the Statements of Objects and Reasons
behind the Amending Act of 2015 and what the amendments postulated.
Paragraph Nos. 18 to 21 of the said judgment would provide an insight as to
what the Amending Act of 2015 sought to achieve and broadly what the
amendments dealt with. The said paragraphs are reproduced herein under:
"18.The exhaustive Statement of Objects and Reasons reveals that the extensive
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amendment in the Act were effected after extensive consultations and intensive
scrutiny by the Standing Committee on Coal and Steel, who gave their Report in May
2013. As is evident from the Statement that difficulties were experienced because the
existing Act does not permit the auctioning of mineral concessions. It was observed
that with auctioning of mineral concessions, transparency in allocation will improve;
the Government will get an increased share of the value of mineral resources; and that
it will alleviate the procedural delay, which in turn would check slowdown which
adversely affected the growth of mining sector.
19. The Amendment Act, 2015, as is evident from the objects, aims at : (i) eliminating
discretion; (ii) improving transparency in the allocation of mineral resources; (iii)
simplifying procedures; (iv) eliminating delay on administration, so as to enable
expeditious and optimum development of the mineral resources of the country; (v)
obtaining for the Government an enhanced share of the value of the mineral
resources; and (vi) attracting private investment and the latest technology.
20. The Amendment Act, 2015 ushered in the amendment of Sections 3, 4, 4-A, 5, 6, 13,
15, 21 and First Schedule; substitution of new sections for Sections 8, 11 and 13; and,
insertion of new Sections 8-A, 9-B, 9-C, 10-A, 10-C, 11-B, 11-C, 12-A, 15-A, 17-A, 20-
A, 30-B, 30-C and Fourth Schedule.
21. These amendments brought in vogue : (i) auction to be the sole method of allotment;
(ii) extension of tenure of existing lease from the date of their last renewal to 31-3-
2030 (in the case of captive mines) and till 31-3-2020 (for the merchant miners) or till
the completion of renewal already granted, if any, or a period of 50 years from the
date of grant of such lease; (iii) establishment of District Mineral Foundation for
safeguarding interest of persons affected by mining related activities; (iv) setting up of
a National Mineral Exploration Trust created out of contributions from the mining
lease-holders, in order to have a dedicated fund for encouraging exploration and
investment; (v) removal of the provisions requiring "previous approval" from the
Central Government for grant of mineral concessions in case of important minerals like
iron ore, bauxite, manganese, etc. thereby making the process simpler and quicker;
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(vi) introduction of stringent penal provisions to check illegal mining prescribing higher
penalties up to Rs 5 lakhs per hectare and imprisonment up to 5 years; and (vii)
further empowering the State Government to set up Special Courts for trial of offences
under the Act."
32. Section 5 of the Act of 1957 was amended vide the Amending Act of 2015.
Taking into account that this Court is called upon to interpret the provisions of
Section 5(2) of the Act of 1957 post the Amending Act of 2015, it would be
relevant to take note of Section 5(2) as it stood to prior to the Act of 2015 and
post thereafter. Section 5(2) of the Act of the 1957 prior to the Amending Act of
2015 read as follows:
"5(2). No mining lease shall be granted by the State Government unless it is satisfied
that -
(a) there is evidence to show that the area for which the lease is applied for
has been prospected earlier or the existence of mineral contents therein has been
established otherwise than by means of prospecting such area; and
(b) there is mining plan duly approved by the Central Government, or by the
State Government, in respect of such category of mines as may be specified by the
Central Government, for the development of mineral deposits in the area concerned."
33. Section 5(2) of the Act of 1957 post the Amending Act of 2015 reads as under:
"5(2). No mining lease shall be granted by the State Government unless it is
satisfied that -
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(a) there is evidence to show the existence of mineral contents in the area for
which the application for a mining lease has been made in accordance with such
parameters as may be prescribed for this purpose by the Central Government.
(b) there is a mining plan duly approved by the Central Government, or by the
State Government in respect of such category of mines as may be specified by the
Central Government, for the development of mineral deposits in the area concerned:
Provided that a mining lease may be granted upon the filing of a mining plan in
accordance with a system established by the State Government for preparation,
certification, and monitoring of such plan, with the approval of the Central
Government."
34. The table below would show the stark difference prior and post amendment to
Section 5(2) of the Act of 1957.
Prior to the Amending Act of 2015 Post the Amending Act of 2015
5(2). No mining lease shall be 5(2). No mining lease shall be
granted by the State Government granted by the State Government
unless satisfied that unless satisfied that
(a) there is evidence (a) there is evidence
to show that the area for to show the existence of
which the lease is applied mineral contents in the area
for has been prospected for which the application for
earlier or existence of a mining lease has been
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mineral content therein has made in accordance with
been established otherwise the parameters as may be
than by means of prescribed for this purpose
prospecting such area; by the Central Government.
and (b) There is a mining
plan duly approved by the
(b) there is a mining Central Government, or by
plan duly approved by the the State Government in
Central Government or by respect of such category of
the State Government in mines as may be specified
respect to the category of by the Central Government,
mines as may be specified for the development of
by the Central Government mineral deposits in the area
for the development of the concerned.
mineral deposits in the area
concerned. Provided that a mining lease
may be granted upon the
filing of a mining plan in
accordance with the system
established by the State
Government for preparation,
certification of such plan,
with the approval of the
Central Government.
35. A conjoint reading of Section 5(2) of the Act of 1957, prior and post the
Amending Act of 2015 would show that prior to the Amending Act of 2015, in
terms with Sub Clause (a) for the grant of a mining lease by the State
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Government, there was a requirement that there is evidence to show that the
area for which the lease is applied for has been prospected earlier or the
existence of mineral contents therein was established otherwise by means of a
prospecting such area. On the other hand, post the amendment carried out
vide the Amending Act of 2015, Sub-Clause (a) of Section 5(2) of the Act of
1957 now reads as 'there is evidence to show the existence of mineral contents
in the area for which the application for a mining lease has been made in
accordance with such parameters as may be prescribed for this purpose by the
Central Government'. Therefore prior to the Amending act of 2015, Clause (a)
did not refer to any application to be filed as prescribed by the Central
Government, however post the amendment; there is a requirement for filing of
an application as may be prescribed for this purpose by the Central
Government. Therefore, post amendment in terms with Clause (a) of Section
5(2) of the Act of 1957 without filing such application as may be prescribed for
the purpose of grant of a mining lease by the Central Government, there is a
complete bar in granting a mining lease.
36. The word 'and' which was earlier conjuncting between Sub-Clauses (a) and (b)
of Section 5(2) of the Act of 1957 was omitted. Additionally, a proviso was
added after Sub-Clause (b) of Section 5 of the Act of 1957, which reads that 'a
mining lease may be granted upon filing of a mining plan in accordance with a
system established by the State Government for preparation, certification and
monitoring of such plan with the approval of the Central Government'.
37. The learned Senior counsels appearing on behalf of the petitioners
submitted that the omission of the word 'and' which was conjuncting Sub-
Clauses (a) and (b) of Section 5(2) of the Act of 1957 now has to be interpreted
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that the conditions imposed by clauses (a) and (b) of section 5(2) of the Act of
1957 are disjunctive i.e. if at least one of the two conditions in Section 5(2) of
the Act of 1957 are met, there is no bar for execution of a mining lease. It was
submitted that if the petitioners had demonstrated the existence of minerals,
there is no necessity of a mining plan for grant of a mining lease. Per contra,
the learned counsels appearing on behalf of the respondents submitted that
both the conditions mentioned in Sub-Clause (a) and (b) are required to be
complied with for grant of a mining lease.
38. To deal with the said contentions so raised by the learned counsels of the
parties and to understand the implication of the omission of the word 'and' this
Court finds it relevant to take note of some of the provisions of the Act of 1957
prior and post the Amending Act of 2015. This is required in view of the settled
principles of law that when a conjunctive word is omitted, it is necessarily to
look into what was the intention of the legislature in doing so.
39. Section 10 of the Act of 1957 was not amended vide the Amending Act of 2015.
However, it is pertinent to mention that vide the Amending Act of 2021, a Sub-
Section being Sub-Section (4) was inserted whereby it was mentioned that no
person shall be eligible to make an application under Section 10 unless he had
been selected in accordance with the procedure specified under Sections 10B,
10BA, 11, 11A, 11B or 11D; or had been selected under the Coal Mines (Special)
provisions Act, 2015 or an area had reserved in his favour under Section 17A.
The insertion of Sub Section (4) is mentioned in this judgment as the same
would have relevance when this Court is dealing with the provisos to Section
10A(2)(b) of the Act of 1957 which were also inserted vide the Amending Act of
2021. Be that as it may, for the purpose of understanding, Section 5(2), this
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Court reproduces Section 10 of the Act of 1957 as it stood prior to the
Amending Act of 2021.
"10. Application for prospecting licences or mining leases.-
(1) An application for [a reconnaissance permit, prospecting licence or mining
lease] in respect of any land in which the minerals vest in the Government shall be
made to the State Government concerned in the prescribed form and shall be
accompanied by the prescribed fee.
(2) Where an application is received under sub-section (1), there shall be sent to
the applicant an acknowledgment of its receipt within the prescribed time and in the
prescribed from.
(3) On receipt of an application under this section, the State Government may,
having regard to the provisions of this act and any rules made thereunder, grant or
refuse to grant the [permit, licence or lease]
40. A perusal of the above quoted provision as it stood prior to the Amending Act of
2021 would show that an application for a reconnaissance permit, prospecting
license or a mining lease in respect of any land in which the mineral vest in the
Government shall be made to the State Government concerned in the
prescribed form and shall be accompanied by the prescribed fee. It would
therefore be seen that Section 5(2)(a) of the Act of 1957 prior to the Amending
Act of 2015 although did not perceive of filing an application, however the
requirement of filing the Application is in terms with Section 10(1) of the Act of
1957 in the prescribed form. In terms with Sub-Section (2) of Section 10 of the
Act of 1957, when an application is received, an acknowledgement shall be
issued within the prescribed time and in the prescribed form. Sub-Section (3) is
relevant in as much as the State Government, having regard to the provisions
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of the Act and any Rules made thereunder, grant or refuse to grant permit,
license or lease. This aspect is important taking into account that by virtue of
Section 10(1) of the Act of 1957, the State Government can grant or refuse the
grant of the mining lease pursuant to the application being filed in the
prescribed manner and having regard to the provisions of the Act and the Rules
framed therein under.
41. The prescription mentioned in Sub-Section (1) & (2) of Section 10 of the Act of
1957 would be found in the Mineral Concession Rules, 1960 (for short, "the
Rules of 1960"). Rule 22 of the Rules of 1960 categorically deals with the
Application for grant of mining leases. The Application is required to be filed in
the manner stipulated in Form I and give particulars. It is relevant to take note
of Rule 22(4) of the Rules of 1960 as it stood prior to Mineral Concessions
(Amendment) Rules, 2020 as the same has great significance to deal with the
contentions raised in the present proceedings. Rule 22(4) of the Rules of 1960
reads as follows:
"22(4) .On receipt of the application of the grant of a mining lease the State
Government shall take decision to grant precise area for the said purpose and
communicate such decision to the applicant. On receipt of communication from the
Sate Government of the precise areas to be granted, the applicant shall submit a
mining plan within a period of six months or such other period as may be allowed by
the State Government, to the Central Government for its approval. The applicant shall
submit the mining plan, duly approved by the Central Government or by an officer duly
authorized by the Central Government, to the State Government to grant mining lease
over that area."
42. From a perusal of the above quoted Sub-Rule, it would be seen that upon
receipt of the application for grant of a mining lease, the State Government shall
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take a decision to grant a precise area for the said purpose and communicate
such decision to the Applicant. The Applicant upon being communicated shall
submit a mining plan within six months or such period as may be allowed by the
State Government to the Central Government for approval. Thereupon, the
applicant shall submit the mining plan, duly approved by the Central
Government or by an Officer duly authorized by the Central Government to the
State Government to grant mining lease on that area. Therefore, it would be
apparent from the reading of the above Sub-Rule as well as Section 10(3) of the
Act of 1957 the State Government upon the submission of the Mining Plan duly
approved by the Central Government or by an Officer authorized by the Central
Government can grant or refuse to grant the Mining Lease. This Court further
finds it relevant to take note of Rule 31 of the Rules of 1960 which is
reproduced herein under:
"31. Lease to be executed within six months.-(1) Where, on an application for the
grant of a mining lease, an order has been made for the grant of such lease, a lease
deed in form K or in a form as near thereto as circumstances of each case may require,
shall be executed within six months of the order or within such further period as the
State Government may allow in this behalf, and if no such lease deed is executed within
the said period due to any default on the part of the applicant, the State Government
may revoke the order granting the lease and in that event the application fee shall be
forfeited to the State Government.
(2) The date of the commencement of the period for which a mining lease is granted
shall be the date on which a duly executed deed under sub-rule(1) is registered."
43. From a perusal of the above quoted Rule, it would be seen that pursuant to an
order made for grant of a Mining Lease, a Lease Deed in Form K or in a form as
near thereto as circumstances of each case may required shall be executed
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within six months of the order or within such further period as the State
Government may allow in this behalf. Therefore, a combined reading of Section
10 read with Rule 22(4) and Rule 31 would show that pursuant to the filing of
an Application in Form I, the State Government shall convey the decision to
grant the Mining Lease to the applicant. The applicant thereupon has to submit
a Mining Plan to the Central Government for its approval. Upon the approval of
the Mining Plan by the Central Government or any Officer authorized by the
Central Government, the State Government would pass an order to grant the
Mining Lease under Section 10 subject to following the mandate of the
provisions of the Act of 1957 and any Rules made therein under. It is only upon
passing of such an order for grant of a Mining Lease, a Lease Deed in Form K
would be executed.
44. Before further proceeding on the differentiation between the provisions of
Section 5(2) of the Act of 1957 prior and post the Amending Act of 2015, this
Court finds it relevant to refer to some of the judgments relied upon by the
petitioners. In the case of, Gujarat Pottery works (supra), the Supreme Court
held that granting of a lease is different from execution of the lease Deed and
execution of a formal lease is only compliance with the legal requirements to
make the grant enforceable. The said law laid down appears to be in the
backdrop of the provisions of Section 10 of the Act of 1957 read with Rule 22(4)
and Rule 31 of the Rules of 1960 as discussed in the previous paragraph. It is
relevant to observe that from the facts narrated in the judgment of the Supreme
Court in the case of Gujarat Pottery Works (supra), there was already an order
for grant of a Mining Lease. It is however, relevant to take note from the
observations made in the said judgment that the Supreme Court was not
dealing with a case wherein only a decision was conveyed by the State
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Government to grant a Mining Lease.
45. In the case of Aane Mines and Minerals (supra), it would be seen that learned
Division Bench of the Karnataka High Court was dealing with a case wherein an
application under Rule 22(1) of the Rules of 1960 was submitted. Subsequent
thereto, the Mining Plan along with the clearance from the Karnataka State
Pollution Control Board was submitted. Pursuant thereto, the State Government
vide an order dated 19.06.2010, sanctioned the mining lease or in other words
passed an order granting a mining lease in terms with Section 10(3) of the Act
of 1957. The question before the learned Division Bench of the Karnataka High
Court was whether after the Amending Act of 2015, a direction could be issued
for execution of the lease deed. From the facts mentioned in Paragraph No. 2 of
the said judgment, it would be seen that after submission of the mining plan,
the State Government had sanctioned the grant of the mining lease. The
observations made therein seem to be in the context of Section 10 of the Act of
1957 read with Rule 22(4) and Rule 31 of the Rules of 1960 which this Court
had already dealt with in paragraph no.43 herein above.
46. Similarly, in the case of Meena Lakhotia (supra), the Mining Lease was granted
vide an order dated 10.06.2011 for Limestone and Dolomite (Non-Scheduled
minerals) for a period of 20 years and the question involved therein was that
without the mining lease executed under Rule 31 of the Rules of 1960 in Form
K, whether the provisions of Section 10A(2)(c) of the Act of 1957 would be
applicable. The learned Division Bench held that the State Government had
granted the mining lease to the petitioner and relying upon Gujarat Pottery
Works (supra) held that Section 10(2)(c) of the Act of 1957 was not applicable.
47. It is pertinent to mention that the judgments dealt with hereinabove are
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specifically in respect to cases where there is already an order for grant of a
mining lease and the orders therein of grant of the mining leases by the State
Government were prior to the Amending Act of 2015. The question arises as to
whether the principles laid down in the said judgments can be made applicable
to the present facts. The same would be apparent when this Court further
analyzes Section 5(2) as it stands post the Amending Act of 2015.
48. The Amending Act of 2015 made drastic changes to the Act of 1957 with an
object that the policy of first come first grant would be done away with by
competitive auction method. Section 10 of the Act of 1957, though was retained
vide the Amending Act of 2015 but subsequently amended vide the Amending
Act of 2021 as already stated herein above, but new provisions such as Section
10A, 10B and 10C were inserted. Section 11 of the Act of 1957 was amended
and this amendment has got great significance for the purpose of the instant
case. It would be seen from a perusal of Section 11 as it stood prior to the
Amending Act of 2015 that the said provision conferred preferential right to
certain persons for obtaining a mining lease. The said Section was amended
thereby the conferring of preferential right was done away with and replaced by
auction. Be that as it may, Section 11 of the Act of 1957, post-amendment vide
the Amending Act of 2015 did not apply to cases covered by Section 10A or
Section 17A or to minerals specified in Part A or Part B of the First Schedule or
to lands where the minerals do not vest in the Government as mentioned in
Sub-Section (1) of Section 11 of the Act of 1957. Be that as it may, it is
pertinent to mention that the exclusion of Section 10A from the ambit of Section
11 of the Act of 1957 was done away with vide the Amending Act of 2021. This
aspect of the matter would be relevant as would be seen from a further analysis
of the Rules of 2016.
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49. Section 10A as was introduced vide the Amending Act of 2015. The said
provision though made applications filed prior to the Amending Act of 2015
ineligible but saved certain applications which were filed after the
commencement of the Amending Act of 2015. The applications which were
saved are detailed out in Sub-Section (2) of Section 10 A of the Act of 1957.
Section 10A of the Act of 1957 prior to the Amending Act of 2021 is reproduced
herein under:
"10A. Rights of existing concession-holders and applicants.-
(1) All applications received prior to the date of commencement of the
Mines and Minerals (Development and Regulation) Amendment Act, 2015, shall
become ineligible.
(2) Without prejudice to sub-section (1), the following shall remain eligible
on and from the date of commencement of the Mines and Minerals
(Development and Regulation) Amendment Act, 2015-
(a) Applications received under section 11A of this Act;
(b) Where before the commencement of the Mines and
Minerals (Development and Regulation) Amendment act, 2015 a
reconnaissance permit or prospecting licence has been granted in
respect of any land for any mineral, the permit holder or the
licensee shall have a right for obtaining a prospecting licence
followed by a mining lease, or a mining lease, as the case may be,
in respect of that mineral in that land, if the State Government is
satisfied that the permit-holder or the licensee, as the case may
be,-
(i) has undertaken reconnaissance
operations or prospecting operations, as the case
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may be, to establish the existence of mineral contents
in such land in accordance with such parameters as
may be prescribed by the Central Government;
(ii) has not committed any breach of the
terms and conditions of the reconnaissance permit or
the prospecting licence;
(iii) has not become ineligible under the
provisions of this Act; and
(iv) has not failed to apply for grant of
prospecting licence or mining lease, as the case may
be , within a period of three months after the expiry
of reconnaissance permit or prospecting licence, as
the case may be, or within such further period not
exceeding six months as may be extended by the
State Government ;
(c) where the Central Government has communicated
previous approval as required under sub-section (1) of section 5
for grant of a mining lease, or if a letter of intent (by whatever
name called) has been issued by the State Government to grant a
mining lease, before the commencement of the Mines and
Minerals (Devlopment and Regulation) Amendment act, 2015, the
mining lease shall be granted subject to fulfillment of the
conditions of the previous approval or of the letter of intent within
a period of two years from the date of commencement of the said
Act:
Provided that in respect of any mineral specified in the First
schedule, no prospecting licence or mining lease shall be granted
under clause (b) of this sub-section except with the previous
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approval of the Central Government]"
50. The Supreme Court in the case of Bhushan Power and Steels Ltd. (supra) which
was a judgment pronounced after the Amending Act of 2017 but prior to the
Amending Act of 2021 explained the reasons why certain applications post the
Amending Act of 2015 were saved. Paragraphs 22, 22.1, 22.2, 22.3 and 22.4 of
the said judgment would provide great insight for which the same are quoted
herein under:
"22. Newly inserted provisions of the Amendment Act, 2015 are to be examined and
interpreted keeping in view the aforesaid method of allocation of mineral
resources through auctioning, that has been introduced by the Amendment Act,
2015. Amended Section 11 now makes it clear that the mining leases are to be
granted by auction. It is for this reason that sub-section (1) of Section 10-A
mandates that all applications received prior to 12-1-2015 shall become
ineligible. Notwithstanding, sub-section (2) thereof carves out exceptions by
saving certain categories of applications even filed before the Amendment Act,
2015 came into operation. Three kinds of applications are saved:
22.1. First, applications received under Section 11-A of the Act. Section 11-A, under
new avatar is an exception to Section 11 which mandates grant of prospecting
licence combining lease through auction in respect of minerals, other than
notified minerals. Section 11-A empowers the Central Government to select
certain kinds of companies mentioned in the said section, through auction by
competitive bidding on such terms and conditions, as may be prescribed, for
the purpose of granting reconnaissance permit, prospecting licence or mining
lease in respect of any area containing coal or lignite. Unamended provision
was also of similar nature except that the companies which can be selected now
for this purpose under the new provision are different from the companies
which were mentioned in the old provision. It is for this reason, if applications
were received even under unamended Section 11-A, they are saved and
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protected, which means that these applications can be processed under Section
11-A of the Act.
22.2. Second category of applications, which are kept eligible under the new
provision, are those where the reconnaissance, permit or prospecting licence
had been granted and the permit-holder or the licensee, as the case may be,
had undertaken reconnaissance operations or prospecting operations. The
reason for protecting this class of applicants, it appears, is that such applicants,
with hope to get the licence, had altered their position by spending lot of
money on reconnaissance operations or prospecting operations. This category,
therefore, respects the principle of legitimate expectation.
22.3. Third category is that category of applicants where the Central Government had
already communicated previous approval under Section 5(1) of the Act for grant
of mining lease or the State Government had issued letter of intent to grant a
mining lease before coming into force of the Amendment Act, 2015. Here again,
the raison dêtre is that certain right had accrued to these applicants inasmuch
as all the necessary procedures and formalities were complied with under the
unamended provisions and only formal lease deed remained to be executed.
22.4. It would, thus, be seen that in all the three cases, some kind of right, in law,
came to be vested in these categories of cases which led Parliament to make
such a provision saving those rights, and understandably so."
51. In the present batch of writ petitions, this Court is required to analyze Section
10A(2)(b) of the Act of 1957. The said provision postulates the conditions when
an application for mining lease is saved from the rigors of Section 11 of the Act
of 1957. The four conditions were:
(a). The Applicant had undertaken reconnaissance operations or
prospective operations as the case may be, to establish the existence of
mineral contents in such land in accordance with such parameters as may
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be prescribed by the Central Government.
(b). The Applicant had not committed any breach to the terms and
conditions of the reconnaissance permit or the prospecting license.
(c). The Applicant is not ineligible under the provisions of the Act of
1957.
(d). The Applicant had not failed to apply within 3 months of the expiry
of the reconnaissance permit or the prospecting license, as the case may
be or within such further time not exceeding six months as may be
extended by the State Government.
52. At this stage, it is relevant to observe that post the Amending Act of 2015, the
Rules of 2016 were made which came into force on 04.03.2016. In terms with
Rule 3 of the Rules of 2016, it was stipulated that the Rules of 2016 would apply
to all Minerals except (i) minor minerals as defined in Section 3(e) of the Act of
1957 and (ii) minerals listed in Part A and Part B of the First Schedule to the Act
of 1957. Under such circumstances, w.e.f 04.03.2016 in respect to all minerals
except minor minerals and the minerals listed in Part A and Part B of the First
Schedule to the Act of 1957, came within the purview of the Rules of 2016.
53. Section 5(2)(a) of the Act of 1957 post the Amending Act of 2015 refers to an
application for a Mining Lease made in accordance with such parameters as may
be prescribed for the purpose by the Central Government. This application so
required to be filed w.e.f. 04.03.2016 in respect to all minerals except those
excluded by Rule 3 of the Rules of 2016 was to be made in terms with the Rules
of 2016.
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54. Rule 7 of the Rules specifically deals with the process and procedure when a
holder of a prospecting license can obtain a mining lease. Taking into
consideration the facts involved in the present cases and the fact that the
Petitioners herein seeks to take advantage of Section 10A of the Act of 1957,
the Petitioners herein were therefore required to follow the process and
procedure stipulated in Rule 7 of the Rules of 2016. Rule 7 as it stood prior to
Minerals (Other than Atomic and Hydro Carbons Energy Mineral) Concession
(Fourth Amendment) Rules, 2021 being relevant is reproduced herein under:
"7. Rights of a holder of a prospecting licence to obtain a mining lease.-
(1) The holder of a prospecting licence granted (i) prior to January 12, 2015, or (ii)
pursuant to rule 5 may, upon fulfillment of the conditions specified in sub-clause (i) to
sub clause (iv) of clause (b) of sub-section (2) of section 10A, make an application to
the State Government for grant of a mining lease in the format specified in Schedule
VI, within a period of three months after the expiry of the prospecting licence, or
within such further period not exceeding six months as may be extended by the State
Government.
(2) The State Government shall send an acknowledgement of receipt of the application
submitted under sub-rule (1) to the applicant in Schedule II, within a period of three
days of receipt of the application: Provided that the holder of prospecting licence who
has made an application within the time limits specified in sub-clause (iv) of clause (b)
of sub-section (2) of section 10A to the State Government for grant of a mining lease
before commencement of these rules shall not be required to submit a fresh
application subject to the payment of fee specified in sub-rule (3).
(3) Application for grant of mining lease under sub-rule (1) shall be accompanied by a
non-refundable fee of rupees five lacs per square kilometre on a pro rata basis of the
area over which the mining lease is applied for.
(4) Pursuant to sub-clause (iv) of clause (b) of sub-section (2) of section 10A, an
existing prospecting licence holder may request for an extension of time for
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submission of the application referred under sub-rule (1) by submitting an application
in writing to the State Government in the format specified in Schedule III. The State
Government shall accept or reject such request within a period of thirty days from the
date of receipt thereof.
(5) The State Government shall have the right to seek any additional information,
document or clarification from such applicant with respect to the application under
sub-rule (1).
(6) The State Government shall, on being satisfied that the conditions specified in sub-
clause (i) to sub-clause (iv) of clause (b) of sub-section (2) of section 10A have been
complied with, within a period of sixty days from the date of receipt of the duly
completed application,:
(a) Communicate through an order its decision to grant the mining lease for
any mineral other than those specified in the First Schedule to the Act, or
(b) Forward the application to the Central Government for its previous approval
for grant of a mining lease for any mineral specified in Part C of the First
Schedule to the Act.
(7) In case of applications received under sub-rule (1) which have not complied with
the conditions specified in sub-clause (i) through (iv) of clause (b) of sub-section (2)
of section 10A, the State Government may, after giving the applicant an opportunity of
being heard and for reasons to be recorded in writing and communicated to the
applicant, refuse to grant a mining lease.
(8) Where previous approval of the Central Government as required under clause (b)
of sub-rule (6) has been sought, the application for such an approval shall be disposed
of by the Central Government within a period of one hundred and twenty days from
the date of receipt thereof and the decision of the Central Government shall be duly
communicated to the State Government.
(9) The State Government shall, within a period of sixty days from the date of receipt
of the decision of the Central Government as per sub-rule (8), communicate the
decision, of the Central Government, to grant or refuse to grant the mining lease, as
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the case may be, to the applicant through a written order.
(10) Upon issuance of an order under clause (a) of sub-rule (6) or sub-rule (9) for
grant of a mining lease, the applicant for such mining lease shall:
(a) obtain all consent, approval, permit, no-objection as may be required under
applicable laws for commencement of mining operations;
(b) provide a performance security to the State Government in the form of a
bank guarantee as per the format specified in Schedule IV or as a security
deposit, for an amount equivalent to 0.50% of the value of estimated
resources, which performance security may be invoked by the State
Government as per the terms and conditions of Mine Development and
Production Agreement and the mining lease deed. The performance security
shall be adjusted every five years so that it continues to correspond to 0.50%
of the reassessed value of estimated resources;
(c) satisfy the conditions with respect to a mining plan specified in clause (b) of
subsection (2) of section 5; and
(d) sign an Mine Development and Production Agreement with the State
Government as per the format specified by the Central Government after
compliance of conditions specified in clause (a), (b) and (c) of this sub-rule.
(11) The State Government shall execute a mining lease deed with the applicant in the
format specified in Schedule VII within ninety days of fulfilment of the conditions
specified in sub-rule (10), and if no such deed is executed within the said period due
to any default on the part of the applicant, the State Government may revoke the
order granting the lease and in that event the fee paid under sub-rule (3) shall be
forfeited to the State Government.
(12) The State Government may, for reasons to be recorded in writing and
communicated to the applicant, reduce the area applied for at the time of grant of the
mining lease.
(13) The mining lease executed under sub-rule (11) shall be registered within a period
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of thirty days from the date of its execution; and the date of the commencement of
the period for which a mining lease is granted shall be the date on which a duly
executed mining lease deed is registered."
55. A perusal of the above quoted Rule would show that the applicant who was a
holder of a prospecting license granted prior to 12.01.2015 or pursuant to Rule
5 may upon fulfillment of the conditions specified in the Sub-Clauses (i) to (iv)
of Sub-Section (2) of Section 10A make an application to the State Government
for grant of a Mining Lease in the format specified in Schedule VI within a
period of three months after the expiry of the prospecting license or within such
further period not exceeding six months as may be extended by the State
Government. The State Government is required to acknowledge receipt of the
said application within three days of its receipt. The said application should be
accompanied by the non-refundable fee as stipulated in Sub-Rule (3) of Rule 7.
In terms with Sub-Rule (4) and Sub-Rule (5), the State Government is only
required to consider as regards the fulfillment of the conditions as mentioned in
Section 10A(2)(b) of the Act of 1957. On being satisfied, with the fulfillment of
the conditions, the State Government within sixty days from the receipt of a
completed application shall either
(a) communicate through an order its decision to grant the Mining
Lease for any mineral other than those specified in the First
Schedule to the Act of 1957; or
(b) forward the application to the Central Government for its
previous approval for grant of a Mining Lease for any Minerals
specified in Part C of the First Schedule to the Act.
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56. It is pertinent to mention that Rule 7(6)(a) of the Rules of 2016 appears to be
para materia to the first part of Rule 22(4) of the Rules of 1960 i.e.' the State
Government shall take decision to grant precise area for the said purpose and communicate
such decision to the applicant'. In the circumstance, the State Government is not
satisfied to carry out the requirement as per Clauses (a) or (b) of Rule 7(6), the
State Government shall after giving an opportunity of being heard and for
reasons to be recorded in writing communicate to the applicant its decision to
refuse to grant a Mining Lease. It is pertinent herein to observe that the role of
the State Government upto Sub-Rule (6) and Sub-Rule (7) of Rule 7 is only to
determine as to whether there is compliance to Section 10A(2)(b) and nothing
more. Sub-Rule (10) of Rule 7 is of vital importance inasmuch as it is mentioned
that upon issuance of a order under Clause (a) of Sub-Rule (6) or Rule 9 for
grant of a Mining Lease, the applicant for such Mining Lease shall would have to
fulfill the conditions stipulated in Sub-Clauses (a),(b),(c) and (d) of Rule 7(10).
At this stage, it is pertinent to take note of that in Rule 22(4) of the Rules
of 1960 it is stipulated that after the decision to grant a Mining Lease by the
State Government is communicated, the applicant is required to get a Mining
Plan approved from the Central Government or any Officer authorized by the
Central Government and then submit to the State Government. One of the
distinguishing factors between Rule 7(10) of the Rules of 2016 with that of Rule
22(4) of the Rules of 1960 is that while in Rule 22(4) of the Rules of 1960, the
requirement is only to get approval of the Central Government of the Mining
Plan whereas in terms with Rule 7(10) the Applicant is required to fulfill the
conditions as stipulated in Clauses (a) to (d) of Rule 7(10) of the Rules of 2016.
It is further pertinent to mention that unlike Rule 22(4) and Rule 31 of the Rules
of 1960 read with Section 10(3) of the Act of 1957 which permits the State
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Government to grant the Mining Lease by passing an order, there is nothing
mentioned in Rule 7 of the Rules of 2016 as regards, an order granting of a
Mining Lease by the State Government upon compliance of Rule 7(10). What is
stipulated in Rule 7(11) is that the State Government shall execute a Mining
Lease Deed with the applicant in the format specified in Schedule VII within
ninety days of fulfillment of the conditions specified in Sub-Rule (10) of Rule 7
and if no such deed is executed within the said period, due to any default on
the part of the applicant, the State Government may revoke the order of
conveying its decision to grant the Mining Lease and in that event the fee paid
under Sub-Rule (3) of Rule 7 shall be forfeited to the State Government. At the
cost of repetition, it is reiterated that a perusal of Rule 31 of the Rules of 1960
would show that it specifically mentions about an order for grant of a Mining
Lease and thereupon execution of the Deed of Mining Lease, however there is
nothing in Rule 7 about such an order for grant of a Mining Lease. As per Rule
7(11), the event of execution of a Mining Lease Deed is immediately upon
compliance with the conditions specified in Rule 7(10) of the Rules of 2017.
There is no intermediate event which could be discerned between compliance to
the conditions specified in Rule 7(10) and the execution of the Mining Lease
Deed in terms with Rule 7(11) of the Rules of 2016 unlike in Rule 22(4) and
Rule 31 of the Rules of 1960.
57. At this stage, this Court further finds it relevant to take note of the submissions
made by the learned Senior Counsels for the Petitioners to the effect that in
Rule 7(10) and in Rule 7(11) there are the expressions "for grant of mining
lease" and "revoke the order of granting mining lease" respectively and as such,
there is already an order for grant of a Mining Lease in favour of the petitioners
and in that regard, submitted that the principles laid down in Gujarat Pottery
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Works (supra), Aane Mines and Minerals (supra) and Meena Lakhotia (supra) are
applicable to the present facts. The said submissions so made are misplaced
and misconceived in the opinion of this Court inasmuch as Rule 7(10)
categorically refers to the order under Clause (a) of Sub-Rule (6) for grant of a
Mining Lease. The expression used in Rule 7(6)(a) is "communicate through
an order its decision to grant the mining lease". Therefore, the expression
used in Rule 7(10) and Rule 7(11) referred to by the learned Senior Counsels
can by no stretch of imagination be said to be an order for grant of a Mining
Lease. It is the opinion of this Court that an order conveying the State
Government's decision to grant of a mining lease cannot be equated with an
order of grant of a mining lease in terms with the Rules of 1960. The judgments
in the case of Gujarat Pottery Works (supra), Aane Mines and Minerals (supra)
and Meena Lakhotia (supra) hence would not serve any support to the cases of
the petitioners.
58. The submissions made by the learned Senior Counsels for the Petitioners
appears to be made without appreciating that there is a fundamental distinction
between an order conveying a decision to grant a mining lease to an order
granting a mining lease. An order conveying the decision to grant a mining lease
is an administrative or a preliminary act indicating approval or consent to grant
the lease upon being satisfied as regards the fulfillment of the conditions in
Clauses (i) to (iv) of Section 10A(2)(b) of the Act of 1957. It merely represents
the intention or authorization from the competent authority to grant a mining
lease subject to fulfillment of the conditions mandated in Rule 7(10) i.e.
environmental clearance, compliance with laws, providing performance security,
satisfy the condition with respect to a mining plan specified in Clause (b) of Sub-
Section 2 of Section 5 as well as sign and mine development and production
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develop agreement with the State Government that too, after compliance with
the conditions stipulated in Sub-Clauses (a), (b) and (c) of Rule 7(10) of the
Rules of 2016. On the other hand, a grant of a mining lease is a formal and a
binding act of granting the lease deed executed through a legal document as
specifically mentioned in Rule 7(11) of the Rules of 2016. The same is required
to be done only upon compliance to the conditions stipulated in Rule 7(10) of
the Rules of 2016. At the cost of repetition it is mentioned that the Rule 7 do
not envisage any formal order for grant of a Mining Lease unlike in Rule 22(4)
and Rule 31 of the Rules of 1960. The only order conceptualized in Rule 7 is an
order conveying the decision of the State Government to grant the Mining Lease
which is completely different as above observed from grant of a Mining Lease.
59. In the backdrop of the above analysis let this Court now deal with the aspect of
the omission of the word "and" between the Sub-Clauses (a) and (b) of Section
5(2) of the Act of 1957 vide the Amending Act of 2015. In the opinion of this
Court, the word "and" which prior to the Amending Act of 2015, was
conjuncting between Sub-Clause (a) and Sub-Clause (b) of Section 5(2) of the
Act of 1957 was removed by the legislature purposively to harmonize the
provisions of Section 5(2) with the Rules including the Rules of 2016 and in the
instant case Rule 7. Rule 7(10)(c) of the Rules of 2016 categorically mandate
the requirement of a mining plan in terms with Section 5(2)(b) of the Act of
1957. Therefore, the submission so made by the learned Senior Counsels for the
petitioners that with the omission of the word "and" between Sub-Clauses (a)
and (b) of Section 5(2), either of the conditions being fulfilled would suffice is
misconceived inasmuch as, the petitioners have failed to take note of the
fundamental difference in the language employed in Sub-Clause (a) of Section
5(2) of the Act of 1957 prior and post the Amending Act of 2015. In addition to
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that, this Court finds it relevant to observe that the word "and" conjuncting
between Sub-Clauses (a) and (b) of Section 5(2) was intentionally removed by
the Legislature to remove any ambiguity in view of the insertion of the proviso
to Clause (b) of Section 5(2) of the Act of 1957.
60. This Court further finds it relevant to take note of another submission made by
the learned Senior Counsels appearing on behalf of the petitioners that granting
and execution of a mining lease are two distinct legal events in as much as, it is
the specific submission of the learned Senior Counsels that the orders dated
29.01.2021 are orders granting the mining lease in terms with Rule 7(6) of the
Rules of 2016. In that regard, reference was drawn to Rule 31(2) of the Rules of
1960 and on that basis, it was submitted that alike Rule 31(2) of the Rules of
1960, which maintains the distinction between a grant of a mining lease and
execution of a lease deed separately, Rule 7(6) and Rule 7(11) of the Rules of
2016 have retained this distinction by placing the two events in separate Sub-
Rules and at distinct junctures of the process for obtaining a mining lease deed.
The said submission is misconceived inasmuch as the petitioners failed to
take note of Rule 22(4) and Rule 31 of the Rules of 1960. As already stated
above, Rule 22(4) of the Rules of 1960 mentions about two distinct events.
First, the State Government conveys the decision to grant a mining lease and
secondly upon submission of the mining plan, the grant of the mining lease by
the State Government. In Rule 31 of the Rules of 1960, it is categorically
mentioned that when an order is made to grant of a mining lease, then a lease
deed would be executed. Unlike Rules 22(4) and 31 of the Rules of 1960, there
is nothing in Rule 7 mentioning about an order for grant of a Mining Lease other
than by way of executing a mining lease deed. Therefore, in the opinion of this
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Court, this distinction so sought to be made by the petitioners is totally
misconceived. Additionally, this Court also finds it relevant to observe that if the
submissions made by the learned Senior Counsels are to be accepted, it would
not only result in violation to the provisions of Section 5(2)(b) of the Act of 1957
but also in violation to the Forest Conservation Act, 1980 as well as host of
other laws.
61. In the backdrop of the above discussions, let this Court now deal with the
orders dated 29.01.2021 issued in favour of the petitioners granting the
respective Mining Leases as well as execution of the Deeds of Mining Leases
dated 29.01.2021 by and between the petitioners and the State of Arunachal
Pradesh. Admittedly, the petitioners neither had any approved mining plan as on
29.01.2021 nor had complied with the conditions stipulated in Rule 7(10) of the
Rules of 2016.
62. This Court further finds it relevant to take note of that on 21.08.2019, the
petitioners in the batch of writ petitions were issued communications intimating
the decision to grant the mining leases subject to the fulfillment of the
conditions stipulated therein. At paragraph No. 3(V) of the instant judgment,
this Court had duly referred to what compliances were sought for by the State
Government. The said communications in the opinion of this Court appears to
be in terms with Rule 7(6) of the Rules of 2016. However, most surprisingly, the
compliances so sought for were not complied with. On the other hand on
25.01.2021, the petitioners in the instant batch of the writ petitions submitted
their respective Mining Plan for approval and on the very date requested the
State to execute a lease deed. A lame stand is sought to be taken that the
Petitioners were under the impression that the State of Arunachal Pradesh had
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the system established for preparation, certification of such plan, with the
approval of the Central Government to which the State of Arunachal Pradesh
have refuted. Further there is nothing brought on record to show by the
Petitioners that the State of Arunachal Pradesh had such a system, with the
approval of the Central Government. The said stand also seems to be an
afterthought in as much as the Petitioners have subsequent to the Orders dated
29.01.2021 issued in favour of the Petitioners granting the respective Mining
Leases as well as execution of the Deeds of Mining Leases dated 29.01.2021
have submitted mining plans before The Indian Bureau of Mines on 02.03.2021
which would also show that the petitioners very well knew that the State of
Arunachal Pradesh did not have such a system with the approval of the Central
Government.
63. It is also relevant herein to observe that without approved Mining Plans as well
as the compliance to the conditions stipulated in Rule 7(10) of the Rules of
2016, the State of Arunachal Pradesh most surprisingly and in total violation of
Section 5(2)(b) of the Act of 1957, Rule 7 of the Rules of 2016 as well as the
Forest Conservation Act of 1980 issued the Orders dated 29.01.2021 and on the
very date also executed the Deeds of Mining Lease.
64. In view of the above violations to the provisions of the act of 1957 and the Rules
framed therein under, this Court finds it relevant to take note of Section 19 of
the Act of 1957 which is reproduced herein under:
"19. Prospecting licences and mining leases to be void if in contravention
of Act - Any [reconnaissance permit,] prospecting license or mining lease granted,
renewed or acquired in contravention of the provisions of this Act or any rules or
orders made thereunder shall be void and of no effect.
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Explanation - Where a person has acquired more than one [reconnaissance permit,
prospecting licence or mining lease and the aggregate area covered by such permits,
licences or leases, as the case may be, exceeds the maximum area permissible under
Section 6, only that [reconnaissance permit, prospecting licence or mining lease the
acquisition of which has resulted in such maximum area being exceeded shall be
deed to be void."
65. The Supreme Court in the case of Muneer Enterprises vs. Ramgad Minerals and
Mining Limited and Others reported in (2015) 5 SCC 366 had dealt with the
scope of Section 19 of the Act of 1957. Paragraph No. 104 of the said judgment
is reproduced herein under:
"104. Thus, Section 19 makes the position clear that any mining lease granted
originally or renewed subsequently in contravention of the provisions of the MMDR
Act or any rules or any order made thereunder to be void and of no effect. The
expression used in Section 19 is mandatory and therefore if any contravention of the
provisions of the MMDR Act or Rules or orders found in respect of a mining lease
originally granted or subsequently renewed such mining lease should be treated to be
void and inoperative for operating the said mining lease. It must also be kept in mind
that carrying on any non-forest activity in a forest land can only be with the prior
approval of the Central Government under Section 2 of the Forest Act, 1980.
Therefore, for a mining lease to remain valid, twin requirements of the approval of
the Central Government under the proviso to Section 5(1) of the MMDR Act and
Section 2 of the Forest Act, 1980 have to be fulfilled. Therefore, a lessee cannot be
heard to contend that such statutory requirements are to be thrown overboard and
permitted to seek for such approvals after the expiry of the lease at its own sweet
will and pleasure and the time to be fixed on its own and that the operation of the
mining lease should be allowed ignoring such mandatory prescription."
66. From the above quoted paragraph of the judgment, it is clear that any mining
lease granted originally or renewed subsequently in contravention of the Act of
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1957 or any Rules or any orders made therein under would be void and of no
effect. In that view of the matter, in view of the opinion expressed above that
the Orders dated 29.01.2021 granting the Mining Lease and the Deeds of
Mining Lease dated 29.01.2021 are in violation to Section 5(2)(b) of the Act of
1957 and Rule 7 of the Rules of 2016, the said Orders dated 29.01.2021
granting the Mining Lease and the Deeds of Mining Lease dated 29.01.2021
would be void and of no effect.
67. A question therefore arises as what is the effect of the Orders dated
29.01.2021 granting the Mining Lease and the Deeds of Mining Lease dated
29.01.2021 when they are void and of no effect. In this regard, this Court finds
it relevant to take note of the judgment of the Supreme Court in the case of
Rajasthan State Industrial Development and Investment Corporation Vs.
Subhash Sindhi Cooperative Housing Society Jaipur and others reported in
(2013) 5 SCC 427. The Supreme Court in the said case was dealing with the
question as to what would be the effect of a transfer made after issuance of a
Notification under Section 4 of the Land Acquisition Act, 1894. The Supreme
Court observed that such transfer would be void qua the Government. In that
regard, the Supreme Court dealt with the term "void" and observed at
Paragraph No. 15 to 18 as herein under:
"15. In Kalawati v. Bisheshwar [AIR 1968 SC 261] , this Court held : (AIR p. 265,
para 9)
"9. ... void [means] non-existent from its very inception...."
16. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth [(1996) 1 SCC
435 : AIR 1996 SC 906] , this Court held
"7. ... The word 'void' has a relative rather than an absolute meaning. It only
conveys the idea that the order is invalid or illegal. It can be avoided. There are
Page No.# 76/92
degrees of invalidity, depending upon the gravity of the infirmity, as to whether it
is, fundamental or otherwise...."
17. The word "void" has been defined as : ineffectual; nugatory; having no legal
force or legal effect; unable in law to support the purpose for which it was
intended. (Vide Black's Law Dictionary.) It also means merely a nullity; invalid;
null; worthless; cipher; useless and ineffectual and may be ignored even in
collateral proceeding as if it never were.
18. The word "void" is used in the sense of incapable of ratification. A thing which is
found non est and not required to be set aside, though it is sometimes
convenient to do so. There would be no need for an order to quash it. It would
be automatically null and void without more ado. The continuation orders would
be nullities too, because no one can continue a nullity. (Vide Behram Khurshid
Pesikaka v. State of Bombay [AIR 1955 SC 123 : 1955 Cri LJ 215] , Pankaj
Mehra v. State of Maharashtra [(2000) 2 SCC 756 : 2000 SCC (Cri) 556 : AIR
2000 SC 1953] , Dhurandhar Prasad Singh v. Jai Prakash University [(2001) 6
SCC 534 : AIR 2001 SC 2552] and Govt. of Orissa v. Ashok Transport
Agency [(2002) 9 SCC 28] .)"
68. The learned Senior Counsels appearing on behalf of the petitioners though
submitted that the Orders dated 29.01.2021 granting the Mining Lease and the
Deeds of Mining Lease dated 29.01.2021 unless declared by the Competent
Court of jurisdiction would continue to remain in existence unless set aside by
the competent Authority or the Court and referred to the judgment in the case
of M. Meenakshi & Others (supra). The said judgment so referred has no
application to the present cases inasmuch as the said Judgment was delivered
in the context of an order passed by the competent authority under the Urban
Land (Ceiling and Regulation) Act, 1976 and it was observed in that context that
the order so passed by the competent Authority was not put to challenge and
Page No.# 77/92
further even a void order was required to be challenged in a competent Court. It
is relevant to mention that in the said case the Supreme Court was not dealing
with a statutory provision similar to Section 19 of the Act of 1957 whereby by
operation of law, any order of granting mineral concession contrary to the
provisions of the Act and the Rules framed there under is statutorily rendered
void and having no effect. It is further relevant to observe that at paragraph No.
18 of the judgment in the case of Rajasthan State Industrial Development and
Investment Corporation (supra) the Supreme Court categorically observed that
the word "void" also means nonest and is not required to be set aside though
sometimes it is convenient to do so. It was also observed that there was no
need for an order to quash it.
69. In view of the above analysis and taking into account the statutory mandate
contained in Section 19 of the Act of 1957, this Court opines that the Orders
dated 29.01.2021 thereby granting Mining Lease and the Deeds of Mining Lease
dated 29.01.2021 were void i.e. ineffectual, nugatory, having no legal force or
legal effect. The Orders dated 29.01.2021 thereby granting Mining lease and the
Deeds of Mining Lease dated 29.01.2021 are nullity, invalid and would confer no
right whatsoever upon the petitioners in the batch of writ petitions.
This Court further opines that the Orders dated 29.01.2021 thereby
granting Mining Lease being void cannot also be regarded as orders in terms
with Rule 7(6)(a) of the Rules of 2016. The communications dated 21.08.2019
issued to the Petitioners in the batch of writ petitions in the opinion of this Court
would fall with the ambit of Rule 7(6)(a) of the Rules of 2016.
This answers the third point for determination.
Page No.# 78/92
4TH POINT FOR DETERMINATION:
70. The fourth point for determination pertains to as to whether the Respondent
No.3 had the jurisdiction to revoke the approval of the mining plan and if so,
was he justified in doing so.
71. To determine the said point for determination, this Court finds it relevant to take
note of the provisions of Section 10A of the Act of 1957 which was inserted vide
the Amending Act of 2015. This Court in the previous segments of the instant
judgment has referred to the decisions of the Supreme Court as well as the
Government's decision which led to the Amending Act of 2015. Therefore, the
provisions so inserted vide the Amending Act of 2015 has to be examined and
interpreted keeping in view that the method of allocation of mineral resources
through auctioning was introduced vide the Amending Act of 2015. It would also
be seen from a perusal of Section 11 of the Act of 1957 as amended vide the
Amending Act of 2015 that mining leases are to be granted by auction. It is
under such circumstances, Sub-Section (1) of Section 10A of the Act of 1957
mandates that all applications received prior to the 12.01.2015 shall become
ineligible. Notwithstanding that, Sub-Section (2) of Section 10A of the Act of
2015 creates an exception by saving certain categories of applications. In the
previous segments of the instant judgment and more particularly, while dealing
with the third point for determination, this Court had dealt with Section 10A of
the Act of 1957 in detail. Now let this consider the effect of the Amending Act of
2021.
EFFECT OF THE AMENDING ACT OF 2021
72. The Amending Act of 2021 carried out further extensive amendments to the Act
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of 1957. In so far as Section 10A(2)(b) is concerned two provisos were inserted
which are reproduced herein under:
"Provided that for the cases covered under this clause including the pending cases, the
right to obtain a prospecting licence followed by a mining lease or a mining lease, as the
case may be, shall lapse on the date of commencement of the Mines and Minerals
(Development and Regulation) Amendment Act, 2021:
Provided further that the holder of a reconnaissance permit or prospecting licence
whose rights lapsed under the first proviso, shall be reimbursed the expenditure
incurred towards reconnaissance or prospecting operations in such manner as may be
prescribed by the Central Government";
73. The first proviso to Section 10A(2)(b) stipulated that cases which are covered
under Section 10A(2)(b) including pending cases, the right to obtain a
prospecting license followed by a mining lease or a mining lease as the case
may be, shall lapse on the date of commencement of the Amending Act of
2021. The second proviso further stipulated that the holder of a reconnaissance
permit or a prospective license whose rights lapsed under the first proviso shall
be reimbursed the expenditure incurred towards reconnaissance or prospective
operation in such manner as may be prescribed by the Central Government. The
Amending Act of 2021 came into force w.e.f. 28.03.2021.
74. The above two provisos therefore show that not only the Central Government
had put the sunset clause upon those coming within the ambit of Section 10A(2)
(b), but had also stipulated that these applicant(s) would be reimbursed the
expenditure incurred towards reconnaissance or prospective operations in such
manner as may be prescribed by the Central Government.
75. The question therefore arises whether the applications of the petitioners have
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lapsed as on the date of coming into effect of the Amending Act of 2021. i.e.
28.03.2021. The learned Senior Counsels appearing on behalf of the Petitioners
placed reliance upon the Statements and Objects and Reasons of the Amending
Act of 2021 and submitted that Clause 4(vi) only refers to close the pending
cases of non-auctioned concession holders which have not resulted in grant of
mining leases despite passage of a considerable time of more than five years
and as such as the Petitioners in the instant batch of writ petitions have already
been granted the mining lease, the cases of the Petitioners would not lapse.
Clause 4(vi) is reproduced herein under:
"4(vi). to close the pending cases of non-auctioned concession holders which
have not resulted in grant of mining leases despite passage of a considerable time of
more than five years. The existence of these cases is anachronistic and antagonistic
to the auction regime. The closure of the pending cases would facilitate the
Government to put to auction a large number of mineral blocks in the interest of
nation resulting in early operationalisation of such blocks and additional revenue to
the State Governments."
76. Apparently from the above quoted Clause 4(vi) of the Statements of Objects
and Reasons, it transpires that the legislature had amended the Act of 1957
to close the pending cases of non-auctioned concession holders which had
not resulted in grant of mining lease despite passage of a considerable time
of more than five years. It was stated that existence of these cases were
anachronistic and antagonistic to the auction regime. It was further
mentioned that closing of these pending cases would facilitate the
Government to put to auction a large number of mineral blocks in the interest
of the nation resulting in early operationalization of such blocks and additional
revenue to the State Governments. In the previous segments of the instant
Page No.# 81/92
judgment, and more particularly while deciding the third point for
determination, this Court had come to conclusion that there was no grant of
mining lease in favour of the petitioners in the batch of writ petitions.
Therefore, the submission on behalf of the Petitioners is misconceived.
77. This Court further finds it relevant now to take into account certain
amendments made to Section 10 and 11 of the Act of 1957 vide the
Amending Act of 2021. This Court while dealing with the Third point for
determination dealt with Section 10 of the Act of 1957 as it existed prior to
the Amending Act of 2021. The Amending Act of 2021 inserted a Sub Section
being Sub Section (4) to Section 10 of the Act of 1957. Sub Section (4) which
was inserted is reproduced herein below.
"(4) Notwithstanding anything contained in this section, no person shall be eligible to
make an application under this Section unless--
(a) he has been selected in accordance with the procedure specified under sections
10B, 11, 11A or the rules made under section 11B;
(b) he has been selected under the Coal Mines (Special) Provisions Act, 2015; or
(c) an area has been reserved in his favour under section 17A."
78. The above quoted Sub Section is relevant taking into account that the power
to grant a mining lease which was conferred under Section 10 (3) of the Act
of 1957, upon an application, post the Amending Act of 2021 can only be
exercised if the application is filed in terms with the mandate contained in
Clauses (a), (b) and (c) of Sub Section (4) of Section 10 of the Act of 1957.
The implication of the said amendment is that there can be longer any
Application filed under Section 10A of the Act of 1957.
Page No.# 82/92
79. Now let this Court take note of the amendment to Section 11(1) of the Act of
1957 by the Amending Act of 2021. Sub Section (1) of Section 11 of the Act
of 1957 post the Amending Act of 2021 reads as under
"(1) The provisions of this section shall not apply to the,---
(a) cases falling under section 17A;
(b) minerals specified in Part A of the First Schedule;
(c) minerals specified in Part B of the First Schedule where the grade of
atomic mineral is equal to or greater than such threshold value as may be
notified by the Central Government from time to time; or
(d) land in respect of which the minerals do not vest in the Government.";
The effect of the above amendment is that Section 11(1) of the Act of
1957 as it stood vide the Amending Act of 2015 whereby Section 10A was
specifically excluded from the ambit of Section 11 of the Act of 1957, now post
the Amending Act of 2021 is brought within the purview of Section 11 of the Act
of 1957. The consequential effect therefore is that except those applicant(s)
who comes within the purview of Clauses (a) to (d) of Section 11(1) of the Act
of 1957, all other grant(s) of mining leases, other than notified minerals, would
have to follow the procedure mandated in Section 10B of the Act of 1957 i.e. by
way of auction.
The above aspect assumes relevance in view of the fact that this Court while
determining the third point for determination had categorically opined that there
was no grant of mining lease in favour of the petitioners in the batch of writ
petitions. This Court also held that the communications dated 21.08.2019 issued
to the Petitioners would fall with the ambit of Rule 7(6)(a) of the Rules of 2016.
Page No.# 83/92
This Court had also opined that an order in terms with Rule 7(6)(a) of the Rules
of 2016 is only an order conveying a decision to grant a mining lease and the
same cannot be confused with granting a mining lease.
In view of the above analysis, it is therefore clear that the applications of
the Petitioners for grant of mining lease had lapsed by virtue of the first proviso
to Section 10A(2)(b) of the Act of 1957 and cannot be revived even if this Court
hold that the communications dated 21.08.2019 issued to the Petitioners would
fall within the ambit of Rule 7(6)(a) of the Rules of 2016 in view of insertion of
Section 10(4) and amendment to Section 11(1) vide the Amending Act of 2021.
80. In the backdrop of the above, the question therefore arises as to whether the
respondent No.3 had the jurisdiction and if so, was he justified in revoking the
approval of the mining plans insofar as the petitioners are concerned. It has
been submitted by the learned Senior counsels appearing on behalf of the
petitioners that the Indian Bureau of Mines though has the power to grant
approval to the Mining Plan but do not have the power to revoke the approval
and in that regard, have referred the judgment of the Madhya Pradesh High
Court in the case of Jaykaycem (Central Ltd.) (supra) wherein it was observed
that the Indian Bureau of Mines did not have the power to revoke a mining plan
and Section 21 of the General Clauses Act, 1897 could not be resorted to.
81. This Court finds it relevant to observe that in the previous segments of the
instant judgment, this Court had duly noted the various conditions under which
the approval of the mining plan was granted to the petitioners. Amongst the
various terms on which the approval was granted, Clause-6 stipulated that if the
approval is in conflict with any other law or the Court's order/direction under
Page No.# 84/92
any statute, it shall be revoked immediately. The conditions imposed in the
Approval Letters are not put to challenge. Under such circumstances, in the
opinion of this Court, the Petitioners cannot be permitted to submit that the
Indian Bureau of Mines had no jurisdiction to revoke the approval to the Mining
Plan.
82. The learned Senior counsels appearing on behalf of the petitioners have
referred to the judgment of the learned Division Bench of the Madhya Pradesh
High Court in the case of Jaykaycem (Central Ltd.) (supra) to buttress their
submissions that the Indian Bureau of Mines had no jurisdiction to renew/revoke
the approval of the mining plans. This Court had duly perused the said
judgment. At paragraph No.9 of the said judgment, the counsels who appeared
on behalf of the Indian Bureau of Mines had conceded that the provisions of the
rules did not empower the respondents to issue the order of revoking the
mining plan. It is relevant to take note of that the impugned order passed
therein was revocation of the mining plan in exercise of the powers under
Section 5(2)(b) of the Act of 1957. In that respect, the order of revocation of
the mining plan was held to be without jurisdiction.
83. This Court further takes note of that the learned Division Bench of the Madhya
Pradesh High Court had also observed that Section 21 of the General Clauses
Act, 1897 could not have been made applicable on the ground that when the
statutory authority has to perform a particular duty under the statute, the power
of review/recall has to be specifically provided under the statute. In view of the
said opinion, the learned Division Bench of the Madhya Pradesh High Court held
that Section 21 of the General Clauses Act, 1897 have no application and
confers no power to review any such act.
Page No.# 85/92
84. It is relevant to observe that the case before the learned Division Bench of the
Madhya Pradesh High Court as would appear from a reading of the contents of
the judgment that the power was exercised by the Respondent No.2 therein to
revoke the approval of the mining plan under Section 5(2)(b) of the Act of 1957.
It is not discernible from the said judgment as to whether the approval of the
mining plan contains terms and conditions which is however there in the
approval of the mining plan in the instant cases before this Court.
85. It is also relevant to take note of that the learned Division Bench of the Madhya
Pradesh High Court had also opined that the power to revoke is not there upon
being conceded by the learned counsel appearing for the Indian Bureau of
Mines before the said Court. Considering the said aspect, it is the opinion of this
Court that it would not be proper to foreclose the issue as regards the power to
revoke the approval to Mining Plan on a decision based on concession.
86. This Court with great respect, would observe that the learned Division Bench of
the Madhya Pradesh High Court did not take into consideration the provisions of
Rule 10 and 11 of the Mineral Conservation and Development Rules, 2017
whereby the Controller General or an Officer of Indian Bureau of Mines who is
authorized by the Controller General would be the competent authority to take
decisions with respect to a mining plan approved by any Officer of the Indian
Bureau of Mines pursuant to Clause-(b) of Sub-Section (2) of Section 5 of the
Act of 1957.
87. In addition to that, it is also relevant to take note of Rule 16(4) of the Rules of
2016 which empowers the Indian Bureau of Mines to impose such conditions in
the Mining Plan as it may consider necessary while approving the Mining Plan.
Page No.# 86/92
In the instant cases, it would be seen that the Indian Bureau of Mines had
incorporated the various conditions to the approval of the Mining Plans as have
been specifically mentioned in paragraph 3(X) of the instant judgment. In that
view of the matter, it is the opinion of this Court that the approvals given to
Mining Plans were conditional which empowered the Respondent Nos. 1, 2 and
3 to revoke the mining if the conditions were not satisfied. Therefore, it is the
opinion of this Court that the Respondent Nos. 1, 2 and 3 had the power to
revoke the approval of the Mining Plan, if the approval given to the Mining Plan
were in conflict with law.
88. In the backdrop of the above, the question therefore arises as to whether the
Respondent No.3 was justified in doing so. This Court while determining the
third point for determination had categorically held that the orders dated
29.01.2021 in favour of the Petitioners in the instant batch of writ petitions as
well as the deeds of mining lease executed on 29.01.2021 were void and had no
effect. This Court further observed that an order passed in terms with Rule 7(6)
(a) of the Rules of 2016 is only an order conveying a decision to grant a mining
lease and the same cannot be confused with granting a mining lease. Under
such circumstances, as on 28.03.2021, as there was no grant of a mining lease
in favour of the petitioners in the batch of writ petitions by virtue of the first
proviso to Section 10A(2)(b) of the Act of 1957, the application so filed by the
petitioner seeking grant of mining lease had lapsed.
89. In that view of the matter, it is the opinion of this Court that the Respondent
No.3 was justified in revoking the approval of the mining plans vide the
impugned communication dated 07.01.2022.
Page No.# 87/92
The above answers the fourth point for determination.
REVISITING THE 2ND POINT FOR DETERMINATION:
90. In the foregoing paragraphs of the instant judgment, this Court while taking up
the second point for determination, kept the said point for determination open
to be considered after determination of the third and fourth point for
determination.
91. While deciding the third and fourth point for determination, this Court
categorically held that there was no grant of a mining leases in favour of the
petitioners in the batch of writ petitions. This Court further opined that the
Respondent No.3 had the jurisdiction to revoke the mining plans and further
was justified in revoking the mining plans. The question therefore arises as to
whether this Court now should strike down the impugned order dated
07.01.2022 and refer the matter back to the authority to take a fresh decision.
92. This Court finds it relevant to observe that the principle of natural justice are
flexible principles. They cannot be applied in any straight jacket formula. It all
depends upon the kind of functions performed and to the extent to which a
person is likely to be effected. For these reasons, there are certain exceptions to
the principles of natural justice which have been invoked by the Courts. In the
case of Aligarh Muslim University and Others Vs. Mansoor Ali Khan reported in
(2000) 7 SCC 529, the Supreme Court opined that there are two exceptions to
the principles of natural justice. The first being, if upon admitted or indisputable
facts only one conclusion was possible, then in such a case, the breach of
natural justice was in itself prejudice would not apply. The second exception is
based upon prejudice is required to be proved. Paragraph Nos. 22 to 25 of the
Page No.# 88/92
said judgment in the case of Aligarh Muslim University (supra) are reproduced
herein under:
"22. In M.C. Mehta it was pointed out that at one time, it was held in Ridge v.
Baldwin that breach of principles of natural justice was in itself treated as
prejudice and that no other "de facto" prejudice needed to be proved. But,
since then the rigour of the rule has been relaxed not only in England but also
in our country. In S.L. Kapoor v. Jagmohan Chinnappa Reddy, J. followed Ridge
v. Baldwin and set aside the order of supersession of the New Delhi
Metropolitan Committee rejecting the argument that there was no prejudice
though notice was not given. The proceedings were quashed on the ground of
violation of principles of natural justice. But even in that case certain exceptions
were laid down to which we shall presently refer.
23. Chinnappa Reddy, J. in S.L. Kapoor case laid down two exceptions (at SCC
p. 395) namely, if upon admitted or indisputable facts only one conclusion was
possible, then in such a case, the principle that breach of natural justice was in
itself prejudice, would not apply. In other words if no other conclusion was
possible on admitted or indisputable facts, it is not necessary to quash the order
which was passed in violation of natural justice. Of course, this being an
exception, great care must be taken in applying this exception.
24. The principle that in addition to breach of natural justice, prejudice must
also be proved has been developed in several cases. In K.L. Tripathi v. State
Bank of India Sabyasachi Mukharji, J. (as he then was) also laid down the
principle that not mere violation of natural justice but de facto prejudice (other
than non-issue of notice) had to be proved. It was observed, quoting Wade's
Administrative Law (5th Edn., pp. 472-75), as follows: (SCC p. 58, para 31)
"[I]t is not possible to lay down rigid rules as to when the principles of
Page No.# 89/92
natural justice are to apply, nor as to their scope and extent. ... There
must also have been some real prejudice to the complainant; there is no
such thing as a merely technical infringement of natural justice. The
requirements of natural justice must depend on the facts and
circumstances of the case, the nature of the inquiry, the rules under
which the tribunal is acting, the subject-matter to be dealt with, and so
forth."
Since then, this Court has consistently applied the principle of prejudice in
several cases. The above ruling and various other rulings taking the same view
have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma. In
that case, the principle of "prejudice" has been further elaborated. The same
principle has been reiterated again in Rajendra Singh v. State of M.P.
25. The "useless formality" theory, it must be noted, is an exception. Apart from
the class of cases of "admitted or indisputable facts leading only to one
conclusion" referred to above, there has been considerable debate on the
application of that theory in other cases. The divergent views expressed in
regard to this theory have been elaborately considered by this Court in M.C.
Mehta referred to above. This Court surveyed the views expressed in various
judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord
Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views
expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H.
Clark etc. Some of them have said that orders passed in violation must always
be quashed for otherwise the court will be prejudging the issue. Some others
have said that there is no such absolute rule and prejudice must be shown. Yet,
some others have applied via media rules. We do not think it necessary in this
case to go deeper into these issues. In the ultimate analysis, it may depend on
the facts of a particular case."
Page No.# 90/92
93. This Court further finds it relevant to take note of another judgment of the
Supreme Court in the case of Dharampal Satyapal Ltd. Vs. Deputy Commissioner
of Central Excise, Gauhati and Others reported in (2015) 8 SCC 519 wherein it was
held that it may not be necessary to strike down the action and refer the matter
back to the authorities to take a fresh decision after complying with the
procedural requirement in those cases where non-grant of hearing has not
caused any prejudice to the person against whom the action is taken. Paragraph
Nos. 38 and 40 of the said judgment is reproduced herein under:
"38. But that is not the end of the matter. While the law on the principle of audi
alteram partem has progressed in the manner mentioned above, at the same
time, the courts have also repeatedly remarked that the principles of natural
justice are very flexible principles. They cannot be applied in any straitjacket
formula. It all depends upon the kind of functions performed and to the extent
to which a person is likely to be affected. For this reason, certain exceptions to
the aforesaid principles have been invoked under certain circumstances. For
example, the courts have held that it would be sufficient to allow a person to
make a representation and oral hearing may not be necessary in all cases,
though in some matters, depending upon the nature of the case, not only full-
fledged oral hearing but even cross-examination of witnesses is treated as a
necessary concomitant of the principles of natural justice. Likewise, in service
matters relating to major punishment by way of disciplinary action, the
requirement is very strict and full-fledged opportunity is envisaged under the
statutory rules as well. On the other hand, in those cases where there is an
admission of charge, even when no such formal inquiry is held, the punishment
based on such admission is upheld. It is for this reason, in certain
circumstances, even post-decisional hearing is held to be permissible. Further,
the courts have held that under certain circumstances principles of natural
justice may even be excluded by reason of diverse factors like time, place, the
apprehended danger and so on.
Page No.# 91/92
40. In this behalf, we need to notice one other exception which has been
carved out to the aforesaid principle by the courts. Even if it is found by the
court that there is a violation of principles of natural justice, the courts have
held that it may not be necessary to strike down the action and refer the matter
back to the authorities to take fresh decision after complying with the
procedural requirement in those cases where non-grant of hearing has not
caused any prejudice to the person against whom the action is taken.
Therefore, every violation of a facet of natural justice may not lead to the
conclusion that the order passed is always null and void. The validity of the
order has to be decided on the touchstone of "prejudice". The ultimate test is
always the same viz. the test of prejudice or the test of fair hearing."
94. In the backdrop of the above propositions of law settled by the Supreme Court
and applying the said principles to the facts of the instant case, it is the opinion
of this Court that for the purpose of the present batch of writ petitions, it would
fall within the exception that on admitted or indisputable facts, only one view is
possible that the orders dated 29.01.2021 and the deeds of Mining Lease
executed dated 29.01.2021 are void and have no effect and consequently there
was no grant of a Mining Lease in favour of the Petitioners in the batch of writ
petitions.
95. It is the further opinion of this Court that as there was no grant of Mining Lease,
the applications filed by the Petitioners in the instant batch of writ petitions
seeking grant of mining leases have lapsed by virtue of the first proviso to
Section 10A(2)(b) of the Act of 1957. It is the further opinion of this Court that
relegating the matter back to the authorities again to take a fresh decision after
complying with the procedural requirements of issuance of notice would serve
no purpose. Additionally, this Court further opines that the Petitioners have
Page No.# 92/92
failed to show any prejudice suffered, if the Petitioners were given an
opportunity.
96. Consequently, this Court answers the second point of determination holding
inter alia that there is no requirement for striking down the impugned orders
dated 07.01.2022 on the ground of want of notice and referring the matter back
to the authorities to take a fresh decision.
5TH POINT FOR DETERMINATION:
97. The fifth point for determination is as to whether this Court should interfere with
the impugned communications dated 07.01.2022 whereby the Mining Plans
which were approved in favour of the Petitioners were revoked.
98. Taking into account the analysis and determination made in the second, third
and fourth point for determination, it is the opinion of this Court that the
impugned communications dated 07.01.2022 issued by the Respondent No.3
whereby the Mining Plans approved in favour of the petitioners in the instant
batch of writ petitions were revoked calls for no interference.
6TH POINT FOR DETERMINATION:
99. In view of the above, the instant batch of writ petitions are dismissed. However,
in the facts of the instant case, this Court is not inclined to impose costs.
100. Interim orders which were passed are all vacated.
JUDGE
Comparing Assistant
