Shree Balaji Enterprises vs The Union Of India
2023 Latest Caselaw 3039 Jhar

                                  1


IN THE HIGH COURT OF JHARKHAND AT RANCHI
         W.P. (C) No. 6824 of 2016

Shree Balaji Enterprises, through its proprietor, namely, Gyarsi Lal
Goyal                                         ...   ...   Petitioner
                    Versus
1.The Union of India, through the Secretary, Ministry of Coal.
2.Ministry of Mines, Union of India through its Secretary
3.The State of Jharkhand, through the Chief Secretary.
4.Secretary, Department of Mines and Industries.
5.Central Coalfields Limited, through its Chairman-cum-Managing
Director.                               .......       Respondents
                    with
              W.P. (C) No. 6825 of 2016

Shree Balaji Trading Co., through its proprietor, namely, Ramesh
Kumar Goyal                                     ...   ...  Petitioner
                   Versus
1.The Union of India, through the Secretary, Ministry of Coal.
2.Ministry of Mines, Union of India through its Secretary
3.The State of Jharkhand, through the Chief Secretary.
4.Secretary, Department of Mines and Industries.
5.Central Coalfields Limited, through its Chairman-cum-Managing
Director.                               .......         Respondents
                          ---------
CORAM:               Sri SANJAYA KUMAR MISHRA, C.J.
                          Sri ANANDA SEN, J.
                          ---------
For the Petitioners       :       Mr. Indrajit Sinha, Advocate.
For the UOI               :       Mr. Laxman Kumar, C.G.C.
For the State             :       Mr. Jai Prakash, AAG IA
                          :       Mr. Yogesh Modi, A.C. to A.A.G. 1A
For the CCL               :       Mr. Amit Kumar Das, Advocate
                          :       Mr. Shivam Utkarsh Sahay, Advocate.
                          ---------
18/Dated: 11.07.2023/21.08.2023


      Upon hearing the learned counsel for the parties, this Court

passed the following, (Per, S.K. Mishra, C.J.),

                   ORDER

1. Both the matters have been listed today (21.08.2023) in the

'To be mentioned' category.

2. Both the matters have already been heard and oral orders

have been passed on 11.07.2023.

3. However, while typing out the order, the Secretary has pointed

out certain discrepancies in the order in the sense that there is no

specific mention of the date from which the DMF shall be applicable

in the State of Jharkhand.

4. Mr. Indrajit Sinha, learned counsel for the petitioners would

submit that the retrospective effect of the Jharkhand Rules from

12.01.2015 to 22.03.2016 has to be exempted.

5. In both the writ applications, the grievances of the petitioners

are regarding the applicability of the Mines and Mineral (Contribution

to District Mineral Foundation (Amendment) Rules, 2016, which

relates to the date from which the contribution to the District Mineral

Foundation is leviable on the petitioners.

6. Both these appeals have a common question of law and

similar questions of facts and therefore, taken together for disposal.

7. Shorn of unnecessary details, the facts of the case are as

follows:-

The petitioners are carrying on various activities in the

field, especially in coal and other minerals.

The parliament amended the Mines and Minerals

(Development and Regulation) Act, 1957, by the amending Act

of 2015, which came into effect on 12.01.2015. Amongst all,

by virtue of the aforesaid amending Act, a provisions relating

to District Mineral Foundation viz., Section 9B, Section 13 (2)

(qqa), Section 15 (4) and Section 15 A were inserted.

The said Sections are quoted herein below:-

"District Mineral Foundation 9B. (1) In any district affected by mining related operations, the State Government shall, by notification, establish a trust, as a non-profit body, to be called the District Mineral Foundation.

(2) The object of the District Mineral Foundation shall be to work for the interest and benefit of persons, and areas affected by mining related operations in such manner as may be prescribed by the State Government. (3) The composition and functions of the District Mineral Foundation shall be such as may be prescribed by the State Government.

(4) The State Government while making rules under sub- sections (2) and (3) shall be guided by the provisions contained in article 244 read with Fifth and Sixth Schedules to the Constitution relating to administration of the Scheduled Areas and Tribal Areas and the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. (5) The holder of a mining lease or a prospecting licence- cum-mining lease granted on or after the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, shall, in addition to the royalty, pay to the District Mineral Foundation of the district in which the mining operations are carried on, an amount which is equivalent to such percentage of the royalty paid in terms of the Second Schedule, not exceeding one-third of such royalty, as may be prescribed by the Central Government.

(6) The holder of a mining lease granted before the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, shall, in addition to the royalty, pay to the District Mineral Foundation of the district in which the mining operations are carried on, an amount not exceeding the royalty paid in terms of the Second Schedule in such manner and subject to the categorization of the mining leases and the amounts payable by the various categories of lease holders, as may be prescribed by the Central Government. "13 (2) (qqa) the amount of payment to be made to the District Mineral Foundation under sub-sections (5) and (6) of section 9B;

" 15 (4) Without prejudice to sub-sections (1), (2) and sub- section (3), the State Government may, by notification, make rules for regulating the provisions of this Act for the following, namely:--

(a) the manner in which the District Mineral Foundation shall work for the interest and benefit of persons and areas affected by mining under sub-section (2) of section 9B;

(b) the composition and functions of the District Mineral Foundation under sub-section (3) of section 9B; and

(c) the amount of payment to be made to the District Mineral Foundation by concession holders of minor minerals under section 15A.".

"15A. Power of State Government to collect funds for District Mineral Foundation in case of minor minerals.- The State Government may prescribe the payment by all holders of concessions related to minor minerals of amounts to the District Mineral Foundation of the district in which the mining operations are carried on.".

The petitioners further claim that the Ministry of Mines,

Government of India, issued an order dated 16.09.2015 in purported

exercise of powers under section 20 A of the MMDR Act directing all

State Governments that the notification establishing the District

Mineral Foundations shall state the such District Mineral

Foundations shall be deemed to have come into force with effect

from the 12th day of January, 2015. The petitioners further claim in

purported exercise of power under Section 9B (5) & (6) of the

aforesaid Act, the Central Government promulgated the Mines and

Minerals (Contribution to District Mineral Foundation) Rules, 2015,

vide a Notification No. G.S.R. 715 (E) on 17.09.2015 published in the

Gazette of India Extraordinary No. 575, dated 17.09.2015.

Thus, in terms of the aforesaid Rules, the contribution to

the District Mineral Foundation was to be paid from the date of

notification issued under Section 9 B (1) of the Act by the State

Government establishing District Mineral Foundation or the date of

coming into force of these rules, whichever is later.

8. The Government of Jharkhand came out with a notification on

24.11.2015 published in the Jharkhand Gazette Extraordinary on

07.12.2016, whereby, it decided to constitute District Mineral

Foundation Trust in terms of aforesaid provision. Under Section 15

(4) and 15 (A) of the MMDR Act, the State of Jharkhand promulgated

Jharkhand Mineral Foundation (Trust) Rules, 2016 vide a notification

no. Kha. Ni, (Vividh)-76/2015-804/M, Ranchi, dated 21.03.2016,

which was notified by a Notification dated 22.03.2016 and the same

was published in Jharkhand Gazette Extraordinary, dated

23.03.2016. Rule 1 (2) of the Jharkhand District Mineral Foundation

(Trust) Rules, 2016 provides that the Jharkhand District Mineral

Foundation (Trust) Rules, 2016 shall be deemed to have come into

force on the 12th day of January, 2015. Accordingly, in terms of such

notification, the deductions were made from the dues of the

petitioners with retrospective effect. This matter is no more res

integra. The Hon'ble Supreme Court in the case of Federation of

Indian Mineral Industries and others-Vs-Union of India and

another, (2017) 16 SCC 186 has held as follows: -

"Crucial date for making the contribution to the DMF

40. What then is the crucial date for making the contribution? There are two categories of holders of a mining lease or a prospecting licence-cum-mining lease. We will consider the effect of the notifications on each such category.

.... ... ... ... ...

52.3. In view of the failure of the Central Government to prescribe the rate on 12-1-2015 at which contributions are required to be made to the DMF, the contributions to the DMF cannot be insisted upon with effect from 12-1- 2015. Fixing the maximum rate of contribution to the DMF is insufficient compliance with the law laid down by the Constitution Bench in Vatika.

.... ... ... ... ...

52.5. Contributions to the DMF are required to be made by the holder of a mining lease or a prospecting licence- cum-mining lease in the case of coal, lignite and sand for stowing with effect from 20-10-2015 when the rates were prescribed by the Central Government or with effect from the date on which the DMF was established by the State Government by a notification, whichever is later."

9. This issue has been decided by us in some other writ petition

viz., namely, W.P. (C) No. 6624 of 2016 (M/s Usha Martin Limited-

Versus-State of Jharkhand and others), wherein, it has been held as

under :-

"Thus, the Hon'ble Supreme Court has held that the State Government do not have jurisdiction while promulgating a delegated legislation to make it applicable with retrospective effect. In that view of the matter, the second question was also decided in favour of the petitioner and it was held that the petitioner cannot be compelled to make contribution for a period prior to the date of relevant notification i.e. 17.09.2015 and 20.10.2015, as were the case before the Hon'ble Supreme Court and reliance was also placed by the Hon'ble Supreme Court in the case of Govind Saran Ganga Saran Vs. CST, 1985 (Supp) SCC 205, and CIT Vs. Vatika Township (P) Ltd. (supra).

In that view of the matter, the legal question appearing in this case is no longer res integra. It is further put to our notice by the petitioner that the aforesaid judgment has been relied upon by the High Court of Chhattisgarh, Bilaspur in WPC No. 1504 of 2016 as well as by the Karnataka High Court in Writ

Petition No. 36037 of 2016 (GM-MM-S) as per the judgments dated 24.11.2017 and 15.09.2018 respectively. In that view of the matter, since nothing more is to be decided because of the covered judgments passed, we are inclined to allow the writ application. This writ application is accordingly allowed."

10. Hence, both the writ applications are allowed. However, any

deposit made by the petitioners towards contribution to the District

Mining Fund in between 12.01.2015 to 22.03.2016 shall be adjusted

towards the future contribution of the respective petitioners and

appropriate demand notice for the future shall be raised by

respondent no. 5. There shall be no orders as to costs.

11. Grant urgent certified copy of this order as per Rules.

12. Pending application, if any, stands disposed of.

(Sanjaya Kumar Mishra, C.J.)

(Ananda Sen, J.) N.A.F.R.

APK