Jharkhand High Court
Bharat Poddar vs The State Of Jharkhand on 18 March, 2025
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 2608 of 2016
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Bharat Poddar, Son of Shri Basant Poddar, Resident of
"Poddar Niket", Bariatu Road, P.O. & P.S. Bariatu, District
Ranchi-834009. ... ... ... Petitioner
Versus
1. The State of Jharkhand, Department of Mines & Geology,
through its Secretary, having its office at Project Building,
P.O. Dhurwa, P.S. Hatia, District Ranchi.
2. Deputy Secretary, Mines & Geology Department,
Government of Jharkhand, having its office at Project
Building, P.O. Dhurwa, P.S. Hatia, District Ranchi.
3. Director (Mines), Mines & Geology Department,
Government of Jharkhand, having its office at Project
Building, P.O. Dhurwa, P.S. Hatia, District Ranchi.
4. Deputy Commissioner, Palamau, P.O., P.S. & District
Medninagar.
5. District Mining Officer, Palamau, P.O., P.S. & District
Medninagar. ... ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Petitioner : Mrs. Diksha Dwivedi Advocate
For the Respondent : Mr. Jai Prakash, AAG-IA
Ms. Ruchi Mukhi, AC to AAG-IA
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CAV on 14/02/2025 Pronounced on 18/03/2025
Per Sujit Narayan Prasad, J:
1. The instant writ petition, under Article 226 of the
Constitution of India, has been filed for the following reliefs:
(I).For a direction upon the concerned Respondents to
forthwith grant prospecting mining lease to the Petitioner
under Section 10(3) of the Mines and Minerals (Development
and Regulation) Act, 1957, in respect of the Application dated
14.07.2011 (Annexure-1), which was filed by the Petitioner
for grant of prospecting license of Graphite Ore in Village
Ekta, Lesliganj, Palamau, especially in view of the fact that
the said application was duly processed vide Letter No. 34
dated 21.01.2013 (Annexure-4), all the documents were duly
verified and found to be correct by the concerned
Respondents vide letter No. 511 dated 16.08.2014
(Annexure-5) and as per File Note Sheet dated 09.01.2015
and dated 12.01.2015 (Annexure-6 Series) by which the
proposal for publication of Notification of proposed area was
made and only the prospecting license was required to be
issued to the Petitioner by the Respondent Department,
which could not be made due to operation of Code of Conduct
and therefore newly inserted Section 10A of the Mines and
Minerals (Development and Regulation) Amendment
Ordinance, 2015, cannot be made applicable in the case of
the Petitioner.
II. For a declaration that new inserted Section 10A of the
Mines and Minerals (Development and Regulation)
Amendment Ordinance, 2015, which provides that all
applications received prior to the date of commencement of
the Mines and Minerals (Development and Regulation)
Amendment Ordinance, 2015 shall become ineligible, shall
not apply in the case of the Petitioner on the ground that the
application has been duly processed, all the documents were
duly verified and found to be correct by the concerned
Respondents and only the prospecting license was required
to be issued to the Petitioner by the Respondent Department
under section 10(3) of the Mines and Minerals (Development
and Regulation) Act, 1957.
Factual Matrix
2. The facts, as narrated in the writ petition, in brief, is
that the writ petitioner filed an application dated 14.07.2011
before the Secretary, Mines and Geology Department,
Government of Jharkhand (Respondent No. 1) for prospecting
license of Graphite Ore in the Village Ekta, Lesliganj,
Palamau under Section 10(1) of the Mines and Minerals
(Development and Regulation) Act, 1957 read with Rule 9(1)
of the Mineral Concession Rules, 1960, along with all the
relevant papers and documents as required under the
provisions of said Act and Rules made thereunder.
3. On receipt of the aforesaid, the Respondent No. 3-
Director (Mines), Mines & Geology Department, Government
of Jharkhand forwarded the same to the concerned authority
for its processing and verification and accordingly, the Circle
Officer, Satbarwa, Palamau vide letter No. 176 dated
17.12.2011 submitted its report along with map, after due
verification of the application by the Circle Office, to the
Assistant Mining Officer, Palamau, Medninagar.
4. However, in the meantime, the Deputy Director, Mines
and Geology, Daltonganj vide Letter No. 68 dated 16.08.2012
also submitted its Geological Report with respect to the
application of the writ petitioner, to the Director, Mines and
Geology, Ranchi (Respondent No. 4) after thorough inspection
of the applied area.
5. Subsequently, the Deputy Commissioner, Palamau
(Respondent No. 5) vide Letter No. 34 dated 21.01.2013
forwarded all the relevant papers and documents along with
the reports of the Circle Officer, Satbarwa, Deputy Director,
Mines & Geology, Daltonganj and Divisional Forest Officer,
Medninagar for further processing in granting prospecting
license to the petitioner.
6. The Deputy Secretary, Mines & Geology Department
(Respondent No. 3) vide letter No. 1518 dated 22.07.2014 has
forwarded all the relevant papers and documents, as
mentioned in the said letter to the Assistant Mining Officer,
Palamau for due verification and attestation of the same.
7. The Assistant Mining Officer, Palamau after due
verification and attestation of the same, vide its letter No. 511
dated 16.08.2014 forwarded those papers/documents to the
Respondent No. 3, mentioning therein, inter alia, that the
area applied for by the petitioner is suitable for grating
prospecting license.
8. It is the case of the petitioner that he had duly applied
for the prospecting license before the Respondent No. 2 for
Graphite Ore vide application dated 14.07.2011 filed under
Section 10 (1) of the Mines and Minerals (Development and
Regulation) Act, 1957, along with all the relevant papers and
documents, as required under the provisions of the Act and
his application was duly forwarded to the Respondent No. 2,
mentioning therein, inter alia, that the area applied for by the
petitioner is suitable for grating prospecting license.
9. It has been submitted that the respondents were/are
duty bound to pass an order granting or rejecting the
application for prospecting license to the petitioner under
Section 10(3) of the Mines and Minerals (Development and
Regulation) Act, 1957, but no order, whatsoever was passed
by the Respondent.
10. Being aggrieved with the same, the petitioner has
approached this Court to forthwith grant prospecting mining
licence to the petitioner under Mines and Minerals
(Development and Regulation) Act, 1957, in respect of the
Application dated 14.07.2011 and further declaration that
new inserted Section 10-A(1) of the Mines and Minerals
(Development and Regulation) Amendment Ordinance, 2015,
which provides that all applications received prior to the date
of commencement of the Mines and Minerals (Development
and Regulation) Amendment Ordinance, 2015 shall become
ineligible, shall not apply in the case of the Petitioner.
Submission made on behalf of petitioner:
11. Learned counsel for the petitioner has submitted that
the petitioner had duly applied for the prospecting license
before the Respondent No. 2 for Graphite Ore vide application
dated 14.07.2011 under Section 10 (1) of the Mines and
Minerals (Development and Regulation) Act, 1957, along with
all the relevant papers and documents, as required under the
provisions of the Act and the his application was duly
forwarded to the Respondent No. 3, mentioning therein, inter
alia, that the area applied for by the Petitioner is suitable for
granting prospecting license.
12. It has further been submitted that on the said
application of the petitioner, the concerned Circle Officer,
after due verification, submitted its report. Thereafter, the
Deputy Commissioner, Palamau vide letter dated 21.01.2013
forwarded all the relevant papers and documents along with
the report so submitted by the Circle Officer for granting
prospecting license to the petitioner. Thereafter, Deputy
Secretary, Mines & Geology Department vide letter dated
22.07.2014 forwarded all the relevant papers and documents
to the Assistant Mining Officer, Palamau for due verification
and attestation. After due verification, the Assistant Mining
Officer, Palamau forwarded those papers to respondent no. 3-
Director (Mines), Mines & Geology Department, Government
of Jharkhand mentioning therein that the area applied for by
the petitioner is suitable for granting prospecting license.
13. But the respondent no. 3 did not pass any order either
the order granting or refusing to grant the prospecting license
to the petitioner under Section 10(3) of the MMDR Act, 1957.
14. Submission has been made that a new Section has been
inserted in the MMDR Act, 1957 i.e., Section 10 (A)(1) which
provides that applications received prior to the date of
commencement of the MMDR Act, 2015 shall become
ineligible shall not apply in the case of the petitioner on the
ground that the application has been duly processed vide
letter dated 21.01.2013 and found to be correct by the
concerned respondent vide letter dated 16.08.2014 and only
the prospecting license was required to be issued to the
petitioner under Section 10(3) of the MMDR Act, 1957.
15. Further submission has been made that as per File Note
dated 09.01.2015 and 12.01.2015, which has been annexed
as Annexure 6 series to the writ petition, it is evident that
proposal for publication of notification of proposed area was
made and only the prospecting license was required to be
issued to the petitioner by the respondent department, which
could not be made due to operation of Code of Conduct and
therefore, newly inserted Section 10-A sub clause 1 of the
MMDR Act, cannot be made applicable in the case of the
petitioner.
16. Learned counsel for the petitioner further submitted
that the application for prospecting license was filed on
14.07.2011, which was required to be disposed of to be in
either way i.e., by granting license or refusing to grant
license, within a period of nine months from the date of
submission of such application, as per mandate of Rule 63A
of the Mineral Concession Rules, 1960 wherein time limit has
been provided to the State Government to dispose of
application for reconnaissance permit, prospecting licence
and mining lease.
17. Learned counsel for the petitioner has submitted that
even there is no laches on the part of the petitioner and law
has been amended with effect from 12.01.2015, as such no
adverse decision is permissible on the basis of amended law.
It has been contended by referring to Annexure 6 series
which is a document obtained under the RTI Act, 2005
wherefrom as per the petitioner it would be evident that the
procedure has been commenced for the purpose of taking
final decision with respect to the issuance of letter of intent
but due to the ensuing elections and in consequence thereof,
the model code of conduct has been imposed hence the
decision has not been taken. Therefore, the argument has
been advanced that if due to the act of the State Government,
the decision could not have been taken and in the meanwhile
the Act has been amended w.e.f. 12.01.2015 by insertion of
provision of Section 10-A of the Act, 1957 amended in the
year 2015 then declining the issuance of the license is highly
arbitrary and illegal.
18. In view thereof, prayer has been made that newly
inserted Section 10(A)(1)of the Mines and Minerals
(Development and Regulation) Amendment Ordinance, 2015,
which provides that all applications received prior to the date
of commencement of the Mines and Minerals (Development
and Regulation) Amendment Ordinance, 2015 shall become
ineligible, shall not apply in the case of the petitioner and
forthwith grant prospecting mining lease to the petitioner
under Section 10(3) of the Mines and Minerals (Development
and Regulation) Act, 1957, in respect of the application dated
14.07.2011.
19. Further the learned counsel for the writ petitioner has
raised the principle of legitimate expectation and submitted
that the petitioner has changed/altered its position and
further all necessary procedures and formalities had been
complied with therefore in the instant case provision of
section 10 (A) (1) of the Act, 1957 amended in the year 2015
will not be applicable and as such declaring pending
application ineligible is highly arbitrary and illegal.
20. To buttress this limb of argument, the learned counsel
for the writ petitioner has relied upon the paragraph 28 of the
Judgment rendered by the Hon‟ble Apex Court in the case of
State of West Bengal and Another Vs Chiranjilal
(Mineral) Industries of Bagandih and Another reported in
2023 SCC OnLine SC 1149.
Submission on behalf of respondents-State:
21. While on the other hand, learned AAG-I A appearing for
the State has submitted that the question involves herein
with respect to the interpretation and implementation of
Section 10A of the MMDR Amendment Ordinance, 2015 and
MMDR Amendment Act, 2015 which has come into force
w.e.f. 12.01.2015.
22. The petitioner had applied for grant of prospective
license for graphite over an area of 26.76 acres in village
Ekta, Palamau on 14.07.2011 under the Mineral Concession
Rules, 1960. Admittedly, the aforesaid prospection license of
the petitioner was forwarded by the Deputy Commissioner,
Palamau to the Director, Mines over an amended area of
24.11 acres vide letter dated 21.01.2013 along with the
report of Circle Officer, Satbarwa, Divisional Forest Officer,
Medininagar and Deputy Director, Geology, Daltonganj.
23. It has further been submitted that during pendency of
the aforesaid prospection application of the petitioner before
the Department of Mines & Geology, Government of
Jharkhand, the Central Government promulgated the Mines
and Minerals (Development and Regulation) Amendment
Ordinance, 2015 on 12th of January, 2015, which was passed
as an Amendment Act, 2015.
24. Learned AAG-I appearing for the State has submitted
that there is no provision of saving of such prospecting
license application under Section 10-A (2) of the MMDR Act,
merely on account of its procession prior to 12.01.2015.
25. Further, the Department of Mines & Geology, State of
Jharkhand taking into consideration the aforesaid facts and
Section 10(A)(1) of the MMDR Act has also passed orders
declaring all such pending applications as ineligible vide
letter dated 11.05.2015.
26. Learned AAG-I A has further submitted that now as per
present regime all such areas are proposed to be settled by
auction in terms of Mineral Auction Rules, 2015. Therefore,
all applications received prior to the date of commencement
of the Mines and Minerals (Development and Regulation)
Amendment Act, 2015 shall become ineligible.
27. Further submission has been made that the case of the
petitioner is not covered by the provisions contained in
Section10(A)(2) which carves out an exception to the
provisions of Section 10(A)(1) of the MMDR Act, (as amended).
Further, there is no protection to such applications
submitted prior to the cut-off date i.e., 12.01.2015 as such
the prayer of the petitioner cannot be acceded to.
28. Learned counsel for the State has submitted that
Section 10A (1) mandates for the ineligibility conditions of
one or the other applicants but the exception has been carved
out under Section 10A (2) (c) wherein in case of availability of
either of the conditions i.e., approval of the Central
Government as to the obtained under Section 5 of the Act,
1957 or the letter of intent has been issued by the State
Government containing therein certain conditions subject to
fulfillment within a period of two years from the date of
receipt of letter of intent then only the ineligibility criteria as
provided under Section 10A (1) will have no prevailing effect
due to amendment by virtue of insertion of Section 10A(1) of
the Act, 1957.
29. It has been contended that even accepting the
documents, which has been appended as Annexure 6 series,
then also no caseis made out for the purpose of helping the
writ petitioner eligible on account of availability of the
condition as stipulated under Section 10A (2) (c).
30. It has further been contended that even accepting that
there is delay in taking decision by the Government but the
fact remains that the rider which has been created to come
out from the rigour of provision of Section 10A(1) will be only
in a case of availability of either of the two conditions i.e.,
with the prior approval of the Central Government, as
required to be obtained under Section 5 of the Act, 1957 or
the letter of intent issued by the State Government subject to
fulfillment of its conditions within a period of two years. But
none of the conditions have been fulfilled and as such the
eligibility criteria as contained under Section 10(A)(1) of the
Act, 1957 cannot have over-riding effect.
31. Further submission has been made that the reliance
which has been made on behalf of learned counsel for the
petitioner in the case of State of West Bengal and Another
Vs Chiranjilal (Mineral) Industries of Bagandih and
Another (supra), in particular paragraph 28 thereof is no aid
to the petitioner reason being that case of the petitioner is not
falling in the second or third category as specified by the
Hon‟ble Apex Court.
32. The learned State counsel on the basis of aforesaid
argument has submitted that the case of the petitioner
therefore needs to be dismissed.
Analysis
33. We have heard the learned counsels for the parties and
gone through the pleadings made in the writ petition as also
in the counter-affidavit.
34. This Court before entering in to merit of the case, would
like to refer herein the relevant Articles of Constitution of
India and the provisions of the MMDR Act, 1957.
35. It needs to refer herein that Article 246 of
the Constitution of India stipulates legislative powers of
Central and State Government, wherein, the Seventh
Schedule of the Constitution of India provides the subject-
matter of legislation by Parliament and State Legislatures. As
per Entry 54 of List I (Union List), the Central Government
has powers for "regulation of mines and mineral development
to the extent to which such regulation and development
under the control of the Union is declared by Parliament by
law to be expedient in the public interest". According to Entry
23, List II (State List), the State Governments have powers for
"regulation of mines and mineral development subject to the
provisions of List I with respect to regulation and
development under the control of the Union".
36. As per the aforesaid stipulation the Mines and Minerals
(Development and Regulation) Act, 1957 was enacted by the
Parliament wherein by virtue of Section 2 of the MMDR Act it
has been declared that it is expedient in the public interest
that the Union should take under its control the regulation of
mines and the development of minerals to the extent
hereinafter provided. Section 2 of the MMDR Act, 1957 reads
as follows:
"2. Declaration as to the expediency of Union
control.--It is hereby declared that it is expedient in the
public interest that the Union should take under its
control the regulation of mines and the development of
minerals to the extent hereinafter provided."
37. The MMDR Act, 1957, inter alia, provides for procedures
to grant mineral concessions, regulate mining activities and
provisions for mineral development in the country.
Section 4 of the MMDR Act, 1957 reads as follows:
"4. Prospecting or mining operations to be under
licence or lease.-- (1) No person shall undertake any
reconnaissance, prospecting or mining operations in any
area, except under and in accordance with the terms and
conditions of a reconnaissance permit or of a prospecting
licence or, as the case may be, of a mining lease, granted
under this Act and the Rules made thereunder:
∗∗∗
(2) No reconnaissance permit, prospecting licence or mining
lease shall be granted otherwise than in accordance with
the provisions of this Act and the Rules made thereunder."
38. Further Section 6 of the MMDR Act, 1957 reads as
follows:
"6. Maximum area for which a prospecting licence or
mining lease may be granted.-- [(1) No person shall
acquire [∗∗∗] in respect of any mineral or prescribed group
of associated minerals [in a State]--
(a) one or more prospecting licences covering a total area of
more than twenty-five square kilometres; or
(aa) one or more reconnaissance permit covering a total
area of ten thousand square kilometres:
Provided that the area granted under a single
reconnaissance permit shall not exceed five thousand
square kilometers; or]
(b) one or more mining leases covering a total area of more
than ten square kilometres:
Provided that if the Central Government is of the opinion
that in the interest of the development of any mineral or
industry, it is necessary so to do, it may, for reasons to be
recorded by it in writing, permit any person to acquire one
or more prospecting licences or mining leases covering as
area in excess of the aforesaid total area;
(c) any reconnaissance permit, mining lease or prospecting
licence in respect of any area which is not compact or
contiguous:
Provided that if the State Government is of opinion that in
the interests of the development of any mineral, it is
necessary so to do, it may, for reasons to be recorded in
writing, permit any person to acquire a reconnaissance
permit, prospecting licence or mining lease in relation to
any area which is not compact or contiguous.]
(2) For the purposes of this section, a person acquiring by,
or in the name of, another person a reconnaissance permit,
prospecting licence or mining lease which is intended for
himself shall be deemed to be acquiring it himself."
39. The aforesaid provision specifically mentioned with
regard to the maximum area for which a prospecting licence
or mining lease may be granted. If it exceeds the area as
contained in clauses (a), (aa) and (b) it is protected under the
proviso to the effect that if the Central Government is of the
opinion that in the interest of the development of any mineral
or industry, it is necessary so to do, it may, for reasons to be
recorded by it in writing, permit any person to acquire one or
more prospecting licences or mining leases covering as area
in excess of the aforesaid total area. Thereby, the rights have
been protected by such proviso incorporated under Section
6(b) of the Act itself.
40. Further Section 11 of the MMDR Act, 1957 (before
insertion of amendment 2015) reads as follows:
"11. Preferential right or certain persons.--(I) Where a
reconnaissance permit or prospecting licence has been
granted in respect of any land, the permit-holder or the
licensee shall have a preferential right for obtaining, a
prospecting licence or mining lease, as ease may be, in
respect of that land over any other person:
Provided that the State Government is satisfied that the
permit-holder or the licensee as the case may be,-- (a) has
undertaken reconnaissance operations or prospecting
operations, as the case may be, to establish mineral
resources in such land; (b) has not committed any breach of
the terms and conditions of the reconnaissance permit or
the prospecting licence: (c) has not become ineligible under
the provisions of this Act; and (d) has not failed to apply for
grant o Iprospecting licence or mining lease, as the case
may be, within three months after the expiry of
reconnaissance permit or prospecting licence, as the case
may be, or within such further period, as may be extended
by the said Government. (2) Subject to the provisions of
sub-section (1), where the State Government has not
notified in the Official Gazette the area for grant of
reconnaissance permit or prospecting licence or mining
lease, as the case may be, and two or more persons have
applied for a reconnaissance permit, prospecting licence or
a mining lease in respect of any land in such area, the
applicant whose, application was received earlier, shall
have the preferential right to be considered for grant of
reconnaissance permit, prospecting licence or mining lease,
as the case may be, over the applicant whose application
was received later: Provided that where an area is
available for grant of reconnaissance permit, prospecting
licence or mining lease, as the case may be, and the State
Government has invited applications by notification in the
Official Gazette for grant of such permit, licence or lease, all
the applications received during the period specified in
such notification and the applications which had been
received prior to the publication of such notification in
respect of the lands within such area and had not been
disposed of, shall be deemed to have been received on the
same day for the purposes of assigning priority under this
sub-section: Provided further that where any such
applications are received on the same day, the State
Government, after taking into consideration the matter
specified in sub-section (3), may grant the reconnaissance
permit, prospecting licence or mining lease, as the case
may be to such one of the applicants as it may deem fit.
∗∗∗"
41. On perusal of the aforesaid provisions, it is made clear
that where a reconnaissance permit or prospecting licence
has been granted in respect of any land, the permit-holder or
the licensee shall have a preferential right for obtaining, a
prospecting licence or mining lease. That preferential right is
subject to Section 5 mentioned above. As per sub-sections (1)
and (2) of Section 11, the right given to the applicants is a
preferential right to be considered for grant of reconnaissance
permit, prospecting licence or mining lease, as the case may
be over the applicants whose applications are received later.
Thereby, the provision has been carved out for a preferential
right in favour of the applicants, who seek for reconnaissance
permit, prospecting licence or mining lease and they are
entitled to get preferential right over and above the
applications received later.
42. In view of the provisions contained in the MMDR Act,
1957, once the reconnaissance permit or prospecting licence
or mining lease of an area is granted to an applicant, the
operation thereof was not done in proper perspective for the
benefits of the public at large and the revenue to be earned
from the minerals. Therefore, amendments to the MMDR Act,
1957 were required to bring in necessary changes, keeping
with the changing scenario in the mining sector as also with
the requirement of complying with various judgments of the
Hon‟ble Supreme Court.
43. The MMDR Act, 1957 and the Rules made thereunder
forms a complete code in respect of minerals. As would be
evident from Sections 3(e), 14 and 15 of the Act, the
regulation and control of minor minerals have been vested
with the State Government. So far as major minerals are
concerned, Sections 5(1)(b), 5(2)(b), 7(2), 8(3), 10-A(2)(b), 10-
A(2)(c), 17-A(2) and 17(A)(2-A) of the Act provide that in case
of major minerals under the statutory scheme, the regulation
and control has been exclusively vested with the Central
Government.
44. The reforms in the mining sector through the
amendment to the MMDR Act, 1957 were required to bring in
necessary changes in keeping with the changing scenario in
the mining sector as also with the requirement of complying
with judgments of the Hon'ble Supreme Court. The
amendment to the MMDR Act, 1957 was required to be
carried out to expedite the mining operation across the
country and for the Revenue generation for the State
Governments in the interest of public at large.
45. The said Act has been amended several times over the
years, notably in 1972, 1986, 1994 and 1999.
46. The reasons for Amendment Act, 2015 is crystal clear
that the mining sector has been subjected to numerous
litigations in the past few years. The judgments related to the
mining sector have been pronounced by the Hon'ble Supreme
Court, besides judgments on the issue of allocation of natural
resources which have direct relevance to the grant of mineral
concessions.
47. Therefore, the Statement of Objects and Reasons for the
Amendment Act, 2015 needs to refer herein, which reads as
follows:
"1.-2. ∗∗∗
3. The mining sector has been subjected to numerous
litigations in the past few years. Important judgments
related to the mining sector have been pronounced by the
Supreme Court, besides judgments on the issue of
allocation of natural resources which have direct relevance
to the grant of mineral concessions.
4. The present legal framework of the MMDR Act, 1957,
does not permit the auctioning of mineral concessions.
Auctioning of mineral concessions would improve
transparency in allocation. Government would also get an
increased share of the value of mineral resources. Some
provisions of the law relating to renewals of mineral
concessions have also been found to be wanting in
enabling quick decisions. Consequently, there has been a
slowdown in the grant of new concessions and the
renewal of existing ones. As a result, the mining sector
started registering a decline in production affecting the
manufacturing sector which largely depends on the raw
material provided by mining sector. The Government has
therefore felt it necessary to address the immediate
requirements of the mining sector and also to remedy the
basic structural defects that underlie the current impasse.
5. In view of the urgent need to address these problems,
the Mines and Minerals (Development and Regulation)
Amendment Ordinance, 2015 was promulgated on 12-1-
2015. The present bill is to replace this Ordinance. This bill
is designed to put in place mechanism for: (i) eliminating
discretion; (ii) improving transparency in the allocation of
mineral resources; (iii) simplifying procedures; (iv)
eliminating delay in 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 of
the country; and (vi) attracting private investment and the
latest technology.
6. The salient features of the MMDR Amendment Bill, 2015
are as follows : (i) Removal of discretion; auction to be sole
method of allotment the amendment seeks to bring in
utmost transparency by introducing auction mechanism for
the grant of mineral concessions. The tenure of mineral
leases has been increased from the existing 30 years to 50
years. There is no provision for renewal of leases. (ii)
Impetus to the mining sector: the mining industry has been
aggrieved due to the second and subsequent renewals
remaining pending. In fact, this has led to closure of a
large number of mines. The bill addresses this issue also.
The bill provides that mining leases would be deemed to
be extended 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 the renewal
already granted, if any, or a period of fifty years from the
date of grant of such leave, whichever is later. (iii)
Safeguarding interest of affected persons: there is
provision to establish District Mineral Foundation in the
districts affected by mining related activities. (iv)
Encouraging exploration and investment: The bill proposes
to set up a National Mineral Exploration Trust created out
of contributions from the mining leaseholders, in order to
have a dedicated fund for encouraging exploration in the
country. Transfer of mineral concessions granted through
auction will be permitted in order to encourage private
investors. (v) Simplification of procedures and removal of
delay: the amendment removes the need for „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
quicker and simpler. Similarly, the State Governments will
devise a system for filling of a mining plan obviating the
need for prior approval of the mining plans by the Central
Government. The Central Government will have revision
powers in case State Governments fail to decide issues
within the prescribed time. (vi) Stronger provisions for
checking illegal mining: in order to address the serious
problem of illegal mining, the penal provisions have been
made further stringent by prescribing higher penalties up
to 5 laid) rupees per hectare and imprisonment up to 5
years. State Governments will now be able to set up
Special Courts for trial of offences under the Act."
48. As the method of auction provides for transparent
mechanism in the allocation of mineral resources and a need
was felt to revisit the provisions of the existing MMDR Act,
1957 for adoption of auction as a method of grant of mineral
concessions. Accordingly, the MMDR Act was amended in
2015 (w.e.f. 12-1-2015) mandating that mineral concessions
for major minerals shall be granted through auction by a
method of competitive bidding. However, an exception to this
was created under Section 10-A.
49. Clause (b) of Section 10-A(2) provided that a
reconnaissance permit (RP) holder or prospecting licence (PL)
holder who was granted RP or PL before 2015 Amendment
(12-1-2015), had a right to obtain a prospecting licence
followed by a mining lease (ML), or a mining lease, as the
case may be, if the State Government is satisfied that such
reconnaissance permit or prospecting licence holder meets
the conditions mentioned in sub-clauses (i) to (iv) of Section
10-A(2)(b). Further, the proviso to Section 10-A(2) provides
another condition that previous approval of the Central
Government for grant of prospecting licence and mining lease
was mandatory in respect of any mineral specified in the First
Schedule of the Act.
50. The MMDR Act, 1957 was comprehensively amended in
2015 to bring several reforms in the mineral sector, notably,
mandating auction of mineral concessions to improve
transparency, establishing District Mineral Foundation and
National Mineral Exploration Trust and stringent penalty for
illegal mining, The Act was further amended in the years
2016 and 2020 to allow transfer of leases for non-auctioned
captive mines and to deal with the emergent issue of expiry of
leases.
51. Taking into consideration the object and reasons of the
Amendment Act, 2015, the procedure for obtaining
prospecting licence or mining lease in respect of land in
which the minerals vest in the Government was indicated in
Sections 10, 10-A and 10-B, which are quoted hereinbelow:
"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
form.
(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].
10-A. 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 11-A 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 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 (Development
and Regulation) Amendment Act, 2015, the mining lease
shall be granted subject to fulfilment 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 approval of the Central Government.
10-B. Grant of mining lease in respect of notified
minerals through auction.-- (1) The provisions of this
section shall not be applicable to cases covered by Section
10-A or Section 17-A or to minerals specified in Part A or
Part B of the First Schedule or to land in respect of which
the minerals do not vest in the Government.
(2) Where there is inadequate evidence to show the
existence of mineral contents of any notified mineral in
respect of any area, a State Government may, after
obtaining the previous approval of the Central Government,
grant a prospecting licence-cum-mining lease for the said
notified mineral in such area in accordance with the
procedure laid down in Section 11.
(3) In areas where the existence of mineral contents of any
notified mineral is established in the manner prescribed by
the Central Government, the State Government shall notify
such areas for grant of mining leases for such notified
mineral, the terms and conditions subject to which such
mining leases shall be granted, and any other relevant
conditions, in such manner as may be prescribed by the
Central Government.
(4) For the purpose of granting a mining lease in respect of
any notified mineral in such notified area, the State
Government shall select, through auction by a method of
competitive bidding, including e-auction, an applicant who
fulfils the eligibility conditions as specified in this Act.
(5) The Central Government shall prescribe the terms and
conditions, and procedure, subject to which the auction
shall be conducted, including the bidding parameters for
the selection, which may include a share in the production
of the mineral, or any payment linked to the royalty
payable, or any other relevant parameter, or any
combination or modification of them.
(6) Without prejudice to the generality of sub-section (5), the
Central Government shall, if it is of the opinion that it is
necessary and expedient to do so, prescribe terms and
conditions, procedure and bidding parameters in respect of
categories of minerals, size and area of mineral deposits
and a State or States, subject to which the auction shall be
conducted :
Provided that the terms and conditions may include the
reservation of any particular mine or mines for a particular
end use and subject to such condition which allow only
such eligible end users to participate in the auction.
(7) The State Government shall grant a mining lease to an
applicant selected in accordance with the procedure laid
down in this section in respect of such notified mineral in
any notified area."
52. In view of the aforementioned provisions, it is apparent
that Section 10 of the Act 1957 deals with application for
prospecting licences or mining leases, which states about
submission of applications in the prescribed form
accompanied by the prescribed fee. On receipt of such
application, the application of the applicant will be sent with
an acknowledgement of its receipt within the prescribed time
and in the prescribed form and on receipt of such application
under this Section, the State Government may, having regard
to the provisions of this Act and the Rules made thereunder,
grant or refuse to grant the permit, licence or lease. By
inserting Section 10-A(1), all applications received prior to the
date of commencement of the Mines and Minerals
(Development and Regulation) Amendment Act, 2015 i.e. 12-
1-2015, shall become ineligible.
53. Section 10-A(2) carves out an exception to Section 10-
A(1) holding that without prejudice to sub-section (1), the
following i.e. Clauses (a) to (c) shall remain eligible on and
from the date of commencement of the Amendment Act,
2015. Section 10-A(2)(a) prescribes the applications received
under Section 11-A of this Act, which deals with granting
reconnaissance permit, prospecting licence or mining lease in
respect of an area containing coal or lignite, to which the
present case is concerned.
54. Coming to Section 10-A(2)(b), before commencement of
the 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,
satisfies the requirement as prescribed under sub-clauses (i)
to (iv) of Section 10-A(2)(b).
55. Further, Section 10-A(2)(c) specifically prescribes that
the mining lease shall be granted subject to fulfilment 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. In the proviso, it has been mentioned that no
prospecting licence or mining lease shall be granted under
clause (b) of this sub-section except with the previous
approval of the Central Government. Therefore, the time-limit
has been prescribed for two years from the date of
commencement of the Amendment Act, 2015 and that too
with prior approval of the Central Government.
56. On close scrutiny of the aforementioned provisions, it
has to be held that under the new regime Section 10-A(1)
made all pending applications in respect of major minerals
ineligible. Thus, pending applications for prospecting licence
(PL), mining lease (ML) or reconnaissance permit (RP) lapsed
and the new auction regime set in.
57. However, Sections 10-A(2)(b) and 10-A(2)(c) of the
Amendment Act, 2015 temporarily saved some pending
applications from before the 2015 Amendment. These
exceptions were applicable to the cases where an applicant
for mining lease had prospected the area, or in respect of
whom a recommendation was made by the State Government
and grant of approval by the Central Government was
pending.
58. It is further clarified that for the applications saved
under Sections 10-A(2)(b) and 10-A(2)(c) of the Act, Central
Government's approval was necessary before the grant of
mining lease. For pending applications under Section 10-
A(2)(b) of the Act, proviso to Section 10-A(2)(c) of the Act
mandated the prior approval of the Central Government
before a mining lease was granted. Similarly, for pending
applications under Section 10-A(2)(c) of the Act, the mining
lease shall be granted within two years of fulfilment of the
conditions mentioned in the letter of intent ("LOI" for short),
only where prior Central Government's approval has been
communicated. Therefore, in both the cases i.e. Sections 10-
A(2)(b) and 10-A(2)(c), previous approval of the Central
Government is necessary in view of the proviso to Section 10-
A(2)(c).
59. Further, Section 10-A(2)(b) provides that a
reconnaissance permit (RP) holder or prospecting licence (PL)
holder who was granted reconnaissance permit (RP) holder or
prospecting licence (PL) before 2015 Amendment i.e. 12-1-
2015, had a right to obtain a prospecting licence followed by
a mining lease (ML), or a mining lease, as the case may be, if
the State Government is satisfied that such reconnaissance
permit (RP) holder or prospecting licence (PL) holder meets
the conditions mentioned in sub-clauses (i) to (iv) of Section
10-A(2)(b).
60. The proviso to Section 10-A(2) provides another
condition that previous approval of the Central Government
for grant of reconnaissance permit (RP) holder and
prospecting licence (PL) was mandatory in respect of any
mineral specified in the First Schedule of the Act.
61. It needs to refer herein that the Amendment Act, 2015
has undergone further amendment by the Amendment Act,
2021 with effect from 28-3-2021 by insertion of proviso to
Sections 10-A(2) to 10-A(2)(b). The aforesaid amendment has
been made with a view to further reforms in the mining sector
to increase mineral production and creation of employment.
To achieve this, more mineral blocks have to be brought into
auction regime and any method of grant of mineral
concession other than through a competitive, transparent
and non-discriminatory method had to be brought to an end.
Therefore, to resolve the impasse created by the exception
provided in Section 10-A(2)(b) the MMDR Act, 1957 was
further amended in the year 2021 to remove any exception to
the grant of mineral concession through auction.
62. This Court in view of the aforesaid provisions, as
referred hereinabove, is of the view that the MMDR Act, 1957,
before amendment of the year 2015 the lapsing period was
not there, i.e as has been inserted by amendment carved out
in the year 2015 by insertion of Section 10-A(1) of the MMDR
Act, 1957 as has been referred hereinabove.
63. It is evident from Section 10-A(2)(c) that the effect of
Section 10-A(1) will not be there subject to fulfilment of the
condition as provided under Section 10-A(2)(b) read with
Section 10-A(2)(c) whereby and whereunder it has been
provided that if the Central Government has granted approval
as required under sub-section (1) to Section 5 of the MMDR
Act, 1957 or the letter of intent has been issued by the State
Government and if the condition so incorporated in the letter
of intent has been undertaken to be fulfilled within a period
of two years either from the date of approval by the Central
Government or from the date of issuance of letter of intent,
then the mining lease can be issued.
64. In the aforesaid backdrop of factual aspects as well legal
provisions as discussed above, the question which requires
consideration herein is:
(i) As to whether the merely filing of an application for
grant of prospecting license before insertion of
amendment of Section 10-A (12.01.2015) made eligible to
the writ petitioner for grant of Prospecting Licence?
(ii) As to whether the File Note Sheet dated
09.01.2015 and dated 12.01.2015, (Annexure-6 Series) by
which the proposal for publication of Notification of
proposed area was made, amount to sufficient compliance
in order to invoke the implication of sub Section 2 Section
10-A of the amended Act 2015?
(iii) As to whether the proposal for publication of
Notification of proposed area can create a vested right so
that the provision of the Amended Act will not adversely
affect the interest of the petitioner?
65. Since all the issues are interlinked and, as such, are
being answered together. But before answering the said
issues the legal position is needed to be referred herein that
the amended provision will adversely affect the right of the
party concerned and, if yes, under which circumstances.
66. It needs to refer herein that the law is well-settled that
the statutory provision is not to be implemented with
retrospective effect unless provided under the statute for
applying with retrospective effect. Reference in this regard is
made to the judgment rendered by the Supreme Court in P.
Mahendran and Ors. v. State of Karnataka and Ors,
(1990) 1 SCC 411 wherein at para 5, it has been observed
which reads as: (SCC p. 416, para 5)
"5. It is well settled rule of construction that every
statute or statutory rule is prospective unless it is
expressly or by necessary implication made to have
retrospective effect. Unless there are words in the
statute or in the Rules showing the intention to affect
existing rights the rule must be held to be prospective.
If a rule is expressed in language which is fairly
capable of either interpretation it ought to be
construed as prospective only. In the absence of any
express provision or necessary intendment the rule
cannot be given retrospective effect except in matter of
procedure. The Amending Rules of 1987 do not
contain any express provision giving the amendment
retrospective effect nor there is anything therein
showing the necessary intendment for enforcing the
rule with retrospective effect. Since the amending
Rules were not retrospective, it could not adversely
affect the right of those candidates who were
qualified for selection and appointment on the date
they applied for the post, moreover as the process of
selection had already commenced when the
amending Rules came into force, the amended Rules
could not affect the existing rights of those candidates
who were being considered for selection as they
possessed the requisite qualifications prescribed by
the Rules before its amendment moreover construction
of amending Rules should be made in a reasonable
manner to avoid unnecessary hardship to those who
have no control over the subject-matter.".
67. In another judgment rendered by the Supreme Court
in K.S. Paripoornan v. State of Kerala and Ors., (1994) 5
SCC 593 it has been held as hereunder:
"92. A substantive law is held to be prospective as a
matter of legal policy since it is founded on public
policy that no right be so created as to work to the
disadvantage for whom it is created as it if be so, "it
would be betrayal of what the law stands for...."
68. The Hon'ble Supreme Court in Kusumam Hotels (P)
Ltd. v. Kerala State Electricity Board and Ors. (2008) 13
SCC 213 has held that all administrative orders ordinarily
are to be considered prospective in nature. For giving it a
retrospective effect, it must be stated so expressly or by
necessary implication.
69. Further, law is also settled that by virtue of the
amended rule the same will be said to be repealed and the
saving clause will only come if any right has been accrued in
favour of the party concerned said to be vested right so as to
follow the principle that by virtue of the amendment carved
out in a Statute the right already accrued in favour of the
party concerned is not to be snatched away. Reference in this
regard may be taken from Chairman Railway Board and
Ors. v. C.R. Rangadhamaiah and Ors., (1997) 6 SCC 623
wherein at para 24 it has been held as under:
24. In many of these decisions the expressions
"vested rights" or "accrued rights" have been used
while striking down the impugned provisions which
had been given retrospective operation so as to have
an adverse effect in the matter of promotion, seniority,
substantive appointment, etc. of the employees. The
said expressions have been used in the context of a
right flowing under the relevant Rule which was
sought to be altered with effect from an anterior date
and thereby taking away the benefits available under
the rule in force at that time. It has been held that
such an amendment having retrospective operation
which has the effect of taking away a benefit already
available to the employee under the existing rule is
arbitrary, discriminatory and violative of the rights
guaranteed under Articles 14 and 16 of
the Constitution. We are unable to hold that these
decisions are not in consonance with the decisions
in [AIR 1967 SC 1889 : (1968) 1 SCR 185 : (1968) 1
LLJ 576] , B.S. Vedera [AIR 1969 SC 118 : (1968) 3
SCR 575
70. The Hon'ble Supreme Court in State of M.P. and Ors.
v. Yogendra Shrivastava (2010) 12 SCC 538 has held that
it is well-settled that rights and benefits which have already
been earned or acquired under the existing rules cannot be
taken away by amending the rules with retrospective effect.
For ready reference the relevant para is being quoted as
under:
"15. -- But it is well settled that rights and benefits
which have already been earned or acquired under
the existing Rules cannot be taken away by
amending the Rules with retrospective effect.
(See N.C. Singhal v. Armed Forces Medical
Services [(1972) 4 SCC 765] ; K.C. Arora v. State of
Haryana [(1984) 3 SCC 281 : 1984 SCC (L&S) 520]
and T.R. Kapur v. State of Haryana [1986 Supp SCC
584 : (1987) 2 ATC 595] .) Therefore, it has to be held
that while the amendment, even if it is to be
considered as otherwise valid, cannot affect the rights
and benefits which had accrued to the employees
under the unamended rules. ---"
71. The amendment of year 2015 in MMDR Act, 1957 has
come into force in order to generate more revenue so far as
the mining resources are concerned. Such decision has been
taken after the judgment having been rendered by the
Hon‟ble Apex Court in the case of Goa Foundation v. Union
of India and Others, [(2014) 6 SCC 590].
72. In Manohar Lal Sharma V. The Principal Secretary
& Ors. (W.P.(Crl) No. 120/2012 disposed of on
25.08.2014), wherein the subject-matter of consideration
was the allocation of coal blocks for the period from 1993 to
2010, the Hon Apex Court observed that allocation of natural
resources has to meet the twin constitutional tests, one, the
distribution of natural resources that vest in the State is to
sub-serve the common good and, two, the allocation is not
violative of Article 14. In paragraphs 71 and 99 of the
judgment dated 25.08.2014, the Hon‟ble Apex Court has
observed as follows:-
"71. xxx xxx xxx Obviously, therefore, such allocations
has to meet twin constitutional tests, one, the
distribution of natural resources that vest in the State
is to sub-serve the common good and, two, the
allocation is not violative of. Article 14.
99. xxx xxx xxx We are fortified in our view by a
recent decision of this Court (3 Judge Bench) in (Goa
Foundation v. Union of India and Others,. [(2014) 6
SCC 5901) Goa Foundation wherein ,follolving
Natural Resources Allocation Reference, it is stated,
".., it is for the State Government to decide as a matter
of policy in what manner the leases of these mineral
resources would be granted, but this decision has to
be taken in accordance with the provisions of the
MMDR Act and the Rules made thereunder and in
consonance with the constitution provisions."
73. The parliamentarian, therefore, has taken decision to
amend the statutory provision in the year 2015, i.e., with
effect from 12.01.2015 by which the provision of 10A (1) has
been inserted.
74. Section 10A (1) has put embargo by making reference of
ineligibility criteria of one or the other party in getting the
mining lease on or after the commencement of the said
amendment. But exception has been carved out wherein
subject to fulfillment of the conditions as provided under
section 10A(2)(b) there will be no effect of embargo put as
under section 10A (1) of the Act of 1957 (Amendment Act,
2015).
75. Section 10A(2)(b) is the condition of eligibility while
section 10A(2)(c) is the criteria to be fulfilled by one or the
other for the purpose of getting the mining lease which is first
approval of the Central Government is required as referred
under sub-section 1 of section 5 of the MMDR Act, 1957 and
second the letter of intent, if issued by the State Government,
and the concerned party has given an undertaking to fulfil
the conditions as stipulated in the letter of intent.
76. The aforesaid conditions therefore specify that subject
to fulfillment of two conditions, i.e., the prior approval of the
Central Government or the letter of intent if issued by the
State Government or if the conditions stipulated in the letter
of Intent is being undertaken to be complied with within a
period of two years then the mining lease irrespective of the
embargo as provided under section 10A(1) is to be issued.
77. It is evident that by issuance of the approval by the
Central Government or the letter of intent the issue has been
taken into consideration that if the right has been accrued in
favour of one of the other by virtue of issuance of approval by
the Central Government or the letter of intent, if issued by
the State Government, then, there will be no adverse affect by
the amendment incorporated in the statutory provision of the
Act of 1957.
78. It is, thus, evident that the purport of the aforesaid
relaxation which has been given is only with respect to the
fact that in case a right has been accrued in favour of one or
the other, then, they will not adversely affect by the amended
provision.
79. The accrual of right is to be considered as per the
argument advanced on behalf of the petitioner who has made
an advanced argument that since as per File Note Sheet
dated 09.01.2015 and dated 12.01.2015 (Annexure-6 Series)
the proposal for publication of Notification of proposed area
was made and only the prospecting license was required to be
issued to the petitioner by the respondent Department
therefore the same be treated to be the accrual/vesting of
right and, hence, the amendment incorporated in the
statutory provision will not have any adverse impact upon the
interest of the petitioner.
80. This Court, in order to appreciate the said issue, is of
the view that the reference of the interpretation of the
aforesaid accrued/vested right needs to be referred herein.
81. Rights are „vested‟ when right to enjoyment, present
or prospective, has become property of some particular
person or persons as present interest; mere expectancy of
future benefits, or contingent interest in property founded on
anticipated continuance of existing laws, does not constitute
„vested rights." Thus, vested right is a right independent of
any contingency and it cannot be taken away without
consent of the person concerned. Vested right can arise from
contract, statute or by operation of law. Unless an accrued or
vested right has been derived by a party, the policy
decision/scheme could be changed.
82. "Vested right" has been defined by the Hon'ble Apex
Court in the case of MGB Gramin Bank v. Chakrawarti
Singh [(2014) 13 SCC 583] at paragraph 11, 12 and 13,
which read hereunder as:--
"11. The word "vested" is defined in Black's Law
Dictionary (6th Edn.) at p. 1563, as:
"Vested.--fixed; accrued; settled; absolute; complete.
Having the character or given in the rights of absolute
ownership; not contingent; not subject to be defeated by a
condition precedent. Rights are „vested‟ when right to
enjoyment, present or prospective, has become property of
some particular person or persons as present interest;
mere expectancy of future benefits, or contingent interest
in property founded on anticipated continuance of existing
laws, does not constitute „vested rights‟."
12. In Webster's Comprehensive Dictionary (International
Edition) at p. 1397, "vested" is defined as law held by a
tenure subject to no contingency; complete; established by
law as a permanent right; vested interest.
13. Thus, vested right is a right independent of any
contingency and it cannot be taken away without consent
of the person concerned. Vested right can arise from
contract, statute or by operation of law. Unless an accrued
or vested right has been derived by a party, the policy
decision/scheme could be changed.
83. Further, so far as the question of taking away the vested
right is concerned, the Hon'ble Apex Court has laid down the
proposition in the case of Chairman, Railway Board v. C.R.
Rangadhamaiah, (1997) 6 SCC 623 at paragraph-24,
which reads hereunder as follows:--
"24. In many of these decisions the expressions "vested
rights" or "accrued rights" have been used while striking
down the impugned provisions which had been
given retrospective operation so as to have an adverse effect
in the matter of promotion, seniority, substantive
appointment, etc., of the employees. The said expressions
have been used in the context of a right flowing under the
relevant rule which was sought to be altered with effect
from an anterior date and thereby taking away the benefits
available under the rule in force at that time. It has been
held that such an amendment
having retrospective operation which has the effect of taking
away a benefit already available to the employee under the
existing rule is arbitrary, discriminatory and violative of the
rights guaranteed under Articles 14 and 16 of
the Constitution. We are unable to hold that these decisions
are not in consonance with the decisions in Roshan Lal
Tandon [AIR 1967 SC 1889], B.S. Vedera [AIR 1969 SC 118]
and Raman Lal Keshav Lal Soni [(1983) 2 SCC 33]."
84. It is evident that the vested right as has been defined in
the aforesaid judgment will be a right which has been
accrued in favour of the parties concerned and once the right
will be accrued there will not adverse impact on the
amendment if incorporated in the statutory provision after
the right as has been accrued.
85. Admittedly herein, the petitioner has harped upon to
accept the said proposal for publication of Notification of
proposed area which would be evident from Annexure-6
Series appended to the instant writ petition, as a right is said
to be accrued in favour of the petitioner and thereby the
amendment incorporated in the statute be not adversely
affect the interest of the party concerned.
86. But we are not in agreement to the said contention
reason being that the mere proposal for publication of
Notification of proposed area cannot be said to be an accrual
of right rather the said proposal cannot be said to be the
binding upon the other, rather the same is to be accepted
and not to be accepted, as such, when the two options are
there, i.e., to be accepted or not to be accepted then such
decision cannot be said to bind the authority who has to take
decision.
87. The letter of intent as per the stipulation made in
Amendment Act 2015, if issued, then, it will be said to the
accrual of right and once the letter of intent has been issued,
then the substantial right is said to be created, however,
subject to fulfillment of the conditions as per the requirement
under section 10A(2)(c) within a period of two years, then the
mining lease will be issued.
88. The contention of the petitioner is also not fit to be
accepted to treat the proposal for publication of Notification
of proposed area to be binding in view of the specific insertion
under section 10A(2)(c) wherein in addition to the two
conditions, i.e., the prior approval of the Central Government
or the letter of intent to be issued by the State Government,
the condition stipulated in the letter of intent is to be fulfilled
within a period of two years.
89. Apart from the above, it has to be observed that mere
making of the application for grant of mineral concessions by
the petitioner, does not create any right, much less a vested
right, and the petitioner cannot claim that it had pre-existing
right to such licence or lease. Its right is only to make an
application, which was given by the policy then existing, and
if the policy is changed, may be by way of an amendment to
the Act, one cannot be stated to have any right on the basis
of the earlier policy, which now does not hold good or find
any place in the Statute.
90. Further, merely because the applications were kept
pending for long period by the concerned authorities would
not create any right or an applicant and cannot be stated to
have a vested right for seeking mining lease on the basis of
the provision which has been substituted by the Amendment
Act.
91. Further, the Hon‟ble Apex Court in Geomin Minerals
and Marketing Private Limited v. State of Orissa and
Ors., (2013) 7 SCC 571 wherein an applicant had sought
direction to the State Government to dispose of all pending
applications for Mineral Concessions filed by the applicant in
accordance with its vested right to preferential consideration,
has observed at Para 41 as under:
"It is well settled that no applicant has a statutory or
fundamental right to obtain prospecting licence or a mining
lease. In this connection one may refer to this Court's
decision in Monnet Ispat [Monnet Ispat and Energy Ltd. v.
Union of India, (2012) 11 SCC 1. Therefore, the High Court
before interfering with the recommendation, ought to have
looked into the nature of recommendation".
92. Further, it needs to refer herein that natural resources
are public property and any change introduced by the
Parliament by way of amendment for the benefit of public at
large shall prevail over personal interest.
93. In Howrah Municipal Corporation and Ors. Vs.
Ganges Rope Company Limited and Ors, (2004) 1 SCC
663, the Hon‟ble Apex Court has observed that the benefit of
public at large shall prevail over the individual interest. It has
further been held that while introducing transparent and fair
procedure for distribution of State largesse, interest of few
individuals is bound to be affected for taking care of the
larger public interest. For ready reference the relevant
paragraph of the aforesaid judgment is being quoted as
under:
"37. The argument advanced on the basis of so-called
creation of vested right for obtaining sanction on the basis
of the Building Rules (unamended) as they were on the
date of submission of the application and the order of the
High Court fixing a period for decision of the same, is
misconceived. The word "vest" is normally used where an
immediate fixed right in present or future enjoyment in
respect of a property is created. With the long usage the
said word "vest" has also acquired a meaning as "an
absolute or indefeasible right" [see K.J. Aiyer's Judicial
Dictionary (A Complete Law Lexicon), 13th Edn.) The
context in which the respondent Company claims a vested
right for sanction and which has been accepted by the
Division Bench of the High Court, is not a right in relation to
"ownership or possession of any property" for which the
expression "vest" is generally used What we can
understand from the claim of a "vested right" set up by the
respondent Company is that on the basis of the Building
Rules, as applicable to their case on the date of making an
application for sanction and the fixed period allotted by the
Court for its consideration, it had a "legitimate" or "settled
expectation" to obtain the sanction. In our considered
opinion, such "settled expectation", if any, did not create
any vested right to obtain sanction. True it is, that the
respondent Company which can have no control over the
manner of processing of application for sanction by the
Corporation cannot be blamed for delay but during
pendency of its application for sanction, if the State
Government, in exercise of its rule- making power,
amended the Building Rules and imposed restrictions on
the heights of buildings on G. T. Road and other wards,
such "settled expectation" has been rendered impossible of
fulfilment due to change in law. The claim based on the
alleged "vested right" or "settled expectation" cannot be set
up against statutory provisions which were brought into
force by the State Government by amending the Building
Rules and not by the Corporation against whom such
"vested right" or "settled expectation" is being sought to be
enforced. The "vested right" of "settled expectation" has
been nullified not only by the Corporation but also by the
State by amending the Byuilding Rules. Besides this, such
a "settled expectation" or the so called "vested right"
cannot be countenanced against public interest and
convenience which are sought to be served by amendment
of the Building Rules and the resolution of the Corporation
issued thereupon".
94. On the basis of the aforesaid discussion made herein
above it is considered view of this Court that the contention
of the learned counsel for the petitioner that a vested right
has been created in favour of the petitioner by virtue of
proposal for publication of Notification of proposed area as
per Annexure-6 Series, is not tenable herein.
95. Further the learned counsel for the petitioner has
contended that the principle of legitimate expectation will be
applicable herein since the petitioner has changed/altered its
position, therefore, Section 10 (A) (1) of the amended Act,
2015 will not be applicable herein and in order to fortify this
limb of argument, the learned counsel for the writ petitioner
has relied upon paragraph 28 of the Judgment rendered by
the Hon‟ble Apex Court in the case of State of West Bengal
and Another Vs Chiranjilal (Mineral) Industries of
Bagandih and Another (supra).
96. In the aforesaid context this Court has gone through the
Judgment rendered by the Hon‟ble Apex Court in the case of
State of West Bengal and Another Vs Chiranjilal
(Mineral) Industries of Bagandih and Another (supra)
wherein at paragraph 28 the Hon‟ble Apex Court has
observed that all applications received prior to 12.01.2015
shall become ineligible as per sub-section (1) to Section 10-
A of the MMDR Act, 1957 and the exceptions or the saving
clause applies to three kinds of situations specified in
subsection (2) to Section 10-A of the MMDR Act, 1957. The
first category is where an application has been received under
Section 11-A of the MMDR Act, 1957 and the second category
is where a reconnaissance permit or a prospecting licence has
been granted the permit holder or the licensee has the right
to obtain a prospecting licence followed by a mining lease and
the State Government is satisfied that the permit holder or
the licensee has complied with the requirements specified in
sub-clauses (i) to (iv) of clause (b) of sub-section (2) to
Section 10-A of the MMDR Act, 1957.
97. The Hon‟ble Apex Court has further observed that the
reason for protecting this class of case is on account of the
fact that they had altered their position by spending money
on reconnaissance operations or prospecting operations
therefore, the principle of legitimate expectation is applied.
For ready reference paragraph 28 of the said Judgment is
being quoted as under:
28. Thus, the object and purpose of the Amendment Act,
2015 is to ensure that allocation of mineral resources is
done through auctioning. This is the reason why sub-
section (1) to Section 10-A of the MMDR Act,
1957 mandates that all applications received prior to
12.01.2015 shall become ineligible. The exceptions or the
saving clause applies to three kinds of situations specified
in subsection (2) to Section 10-A of the MMDR Act, 1957.
The first category is where an application has been
received under Section 11-A of the MMDR Act, 1957. The
second category is where a reconnaissance permit or a
prospecting licence has been granted the permit holder or
the licensee has the right to obtain a prospecting licence
followed by a mining lease and the State Government is
satisfied that the permit holder or the licensee has
complied with the requirements specified in sub-clauses (i)
to (iv) of clause (b) of sub-section (2) to Section 10-A of
the MMDR Act, 1957. The reason for protecting this class
of cases is on account of the fact that they had altered
their position by spending money on reconnaissance
operations or prospecting operations. Accordingly, the
principle of legitimate expectation is applied. The third
category is where the Central Government had already
communicated their previous approval or the State
Government had issue Letter of Intent for grant of mining
lease before coming into force of the Amendment Act,
2015. The raison dêtre, it is observed therein, is that
certain rights had accrued to these applicants inasmuch
as all necessary procedures and formalities had been
complied with and only formal lease remains to be
executed.
98. In the aforesaid background, the argument, which has
been advanced by the learned counsel for the petitioner by
raising the issue of legitimate expectation as provided under
the third/second category, as referred in paragraph 28 of the
said judgment, the same will also have no aid to writ
petitioner reason being that either of the conditions as
provided under 10 A (2) is not available to the petitioner and
therefore the principle of legitimate expectation cannot be
allowed to be there contrary to the statutory mandate as
stipulated in the Act.
99. While dealing with the right of an applicant under
Section 10A (2)(b) of the Act, it has been provided that the
permit holder or licensee shall have a right for obtaining a
mining lease whereas in the case of Section 10A(2)(c), it has
been provided that the mining lease shall be granted subject
to the fulfillment of the conditions of the previous approval.
100. Thus, it is evident that the right to obtain a mining lease
is subject to compliance of the terms and conditions
mentioned in Section 10A(2)(b) has also lapsed on coming
into effect of the MMDR Amendment Act, 2021. Further, in
view of the provisions as contained in Clause (c) of Section
10A(2) of the Act, it is mandated that mining lease cannot,
without the previous approval of the Central Government, be
granted, therefore, the proviso to Section 10A(2)(c) is very
clear.
101. It further needs to refer herein that the Hon‟ble Apex
Court in the case of Bhusan Power and Steel v. State of
Odisha, (2017) 2 SCC 125 while taking into consideration
the aforementioned provisions, has reiterated the object of
Amendment Act 2015 and held that the said amendment has
been incorporated for improving transparency in the
allocation of mineral resources; and obtaining for the
Government an enhanced share of the value of the mineral
resources.
102. The judgment rendered in Bhusan Power & Steel Ltd.
(supra), arose out of contempt petition wherein the
Contemnor-State Government had disregarded the Court‟s
direction to recommend the case for grant of a mining lease to
the Central Government. Based on this direction and Section
10A (2)(c) of the Act, the petitioners therein claimed their
rights to a mining lease. The Hon‟ble Apex Court, did not
grant any relief for the reason that no prior approval had
been granted by the Central Government to the State
Government‟s recommendation.
Conclusion
103. It needs to refer herein that as per Amendment Act,
2015 wherein stipulation has been made in, sub-section (1) of
Section 10A that all applications received prior to the date of
commencement of the Mines and Minerals (Development and
Regulation) Amendment Act, 2015, shall become ineligible.
The saving clause, i.e., Section 10A(2)(b), which has been
inserted vide MMDR Amendment Act 2015, w.e.f. 12.01.2015
does not create vested right automatically and even the right
to obtain a mining lease is subject to compliance of the terms
and conditions mentioned in Section 10A(2)(b).
104. Further in the preceding paragraphs of this judgment, it
has also been observed that either of the conditions as
provided under 10 A (2) is not available to the present
petitioner and therefore the principle of legitimate expectation
cannot be allowed to be there contrary to the statutory
mandate as stipulated in the Act.
105. Further it needs to refer herein that the Department of
Mines & Geology, State of Jharkhand taking into
consideration the aforesaid facts and mandate of Section
10(A)(1) of the MMDR Act have also passed orders declaring
all such pending applications as ineligible vide letter dated
11.05.2015.
106. As such on the basis of the aforesaid discussion, the
argument advanced by the learned Counsel appearing for the
petitioner that pendency of the application for grant of mining
lease a right has been accrued in favour of the petitioner for
consideration, is not fit to be accepted.
107. All the issues are answered accordingly.
108. This Court, in view of the above, is of the view that the
writ petition merits no consideration and the same stands
dismissed.
I Agree (Sujit Narayan Prasad, J.)
(Navneet Kumar, J.) (Navneet Kumar, J.)
Alankar/
A.F.R
