Jharkhand High Court
D.M. Minerals Pvt. Ltd vs The State Of Jharkhand Through The ... on 16 October, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.4561 of 2019
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D.M. Minerals Pvt. Ltd., a company incorporated under the
Companies Act having its registered office at 114/1 Bauri
Para Lane, P.O. & P.S. Bauri Para Lane, District Kolkata,
West Bengal through its Director Shyam Sunder Joshi,
aged about 55 years, son of Late Ram Swaroop Joshi,
resident of 14/1 Sovaram Basak Street, C.I.T Park, P.O. &
P.S. Barabazar, District- Kolkata, West Bengal.
... ... Petitioner
Versus
1. The State of Jharkhand through the Principal Secretary,
Department of Mines and Geology, Government of
Jharkhand, Yojana Bhawan, P.O. & P.S.- Doranda,
District- Ranchi.
2. The Director, Department of Mines and Geology,
Government of Jharkhand, Yojana Bhawan, P.O. & P.S.-
Doranda, District- Ranchi.
3. The Deputy Commissioner, West Singhbhum, P.O.
Chaibasa, P.S. Sadar, District West Singhbhum.
4. The District Mining Officer, West Singhbhum, P.O.
Chaibasa, P.S. Sadar, District West Singhbhum.
5. The Union of India through the Secretary, Ministry of
Mines, Government of India, Shashtri Bhawan, Dr.
Rajendra Prasad Road, P.O., P.S. and District New Delhi.
... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Petitioner : Mr. Indrajit Sinha, Advocate
: Mr. Rahul Kumar, Advocate
: Mr. Ankit Vishal, Advocate
For the State : Mr. Ratnesh Kumar, SC(L&C)-I
: Mr. Rakesh Kr. Shahi, A.C. to A.G.
For the U.O.I. : Mr. Shiv Kumar Sharma, C.G.C.
------
C.A.V. on 22.09.2025 Pronounced on 16/10/2025
Per Sujit Narayan Prasad, J.
1. The writ petition is under Article 226 of the
Constitution of India for issuance of following reliefs: -
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"1(i) For issuance of appropriate Writ(s) /Order (s)
/Direction(s) in the nature of certiorari to quash and
declare the Rule 9(10) of the Jharkhand Minor Mineral
Concession Amendment Rules, 2017 notified vide
Notification No. 149 dated 02.03.2017 as ultra vires to
be in contravention with Sections 8A(3) and 8A(6) of the
Mines and Minerals (Development and Regulation)
Amendment Act, 2015.
(ii) For issuance of appropriate Writ(s) /Order (s)
/Direction(s) commanding upon the Respondents to
extend the lease-hold of the Petitioner for China Clay for
a period of 50 years as stipulated in terms of Mines and
Minerals Development and Regulation Amendment Act
2015 which, provided for deemed extension of the
mining lease for a period till 31.03.2020 or 50 years,
whichever is later."
Factual Matrix
2. The brief facts of the case as stated in the writ
petition which are required to be enumerated, are being
referred herein: -
The Petitioner was granted a mining lease for China
Clay over an area of 38.40 hectares of land in village
Gondkida, District West Singhbhum for a period of ten
years w.e.f. 09.01.1979.
3. The said mining lease was renewed for a period of
10 years w.e.f. 09.01.1989 and the lease deed for the said
renewal was executed on 30.03.1999.
4. The Petitioner filed an application for second
renewal of the aforesaid mining lease on 01.07.1997 for a
period of 20 years w.e.f. 09.01.1999 which was duly
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acknowledged in Form-D by the Assistant Mining Officer,
Chaibasa and a recommendation was made by the Deputy
Commissioner, West Singhbhum for the grant of approval
and was subsequently forwarded to the Director (Mines),
Department of Mines and Geology, Government of Bihar
vide letter contained in Memo No. 1117/M dated
20.07.2000.
5. The Petitioner had applied for a renewal of lease
deed for a further period of 20 years w.e.f. 09.01.1999 and
application was made on 09.01.2009 which was again duly
acknowledged by the District Mining Officer in Form-D
dated 04.01.2008 and recommended and forwarded by the
Deputy Commissioner to the Director (Mines) vide letter
contained in Memo No. 916/M dated 07.05.2008.
6. It is the case of the petitioner that the above-
mentioned renewal applications were kept pending by the
Respondent authorities for long, hence the Petitioner
Company continued working under deemed extension of
the lease deed applicable then.
7. During the pendency of the renewal applications,
the Central Government promulgated the Mines and
Minerals (Development and Regulation) Amendment
Ordinance, 2015 which was passed as an Amendment Act,
2015 on 27.03.2015 w.e.f. 12.01.2015.
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8. The said Amendment brought about a notable
change in Section 8 of the MMDR Act, 1957 and inserted a
new section 8A for regulating the period of mining leases of
minerals. Said amendment brought about remarkable
changes in the power of State Government in matters of
grant of and extension of mining leases.
9. Since the Petitioner Company has been granted the
mining lease for non-captive purposes, hence, Section 8A(6)
is attracted in the matter and in view of the fact that the
Petitioner fulfills all the terms and conditions of the lease
deed, the Petitioner Company became entitled for deemed
extension of its mining lease for a period of 50 years w.e.f.
09.01.1979.
10. Subsequent to the amendment in the MMDR Act,
1957, the Central Government vide its notification dated
10.02.2015, notified China Clay as minor mineral in
exercise of power conferred upon it under Section 3(e) of the
MMDR Act, 1957.
11. It is the case of the petitioner that the said
notification pronouncing China Clay as a minor mineral
came into force on 10.02.2015, but prior to the coming into
force of the said notification when China Clay was still a
major mineral, the mining lease of Petitioner Company has
already deemed to have been extended by operation of law
for a period of 50 years w.e.f. 09.01.1979 under the Mines
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and Minerals (Development and Regulation) Amendment
Ordinance, 2015 which was later enacted as Mines and
Minerals (Development and Regulation) Amendment Act,
2015 with effect from 12.01.2015.
12. It is the case of the petitioner that since China Clay
was a major mineral on the date when the Amendment Act,
2015 came into force, the Petitioner Company vide its
representation dated 08.10.2015 and dated 12.10.2015
requested the Respondent authorities to pass appropriate
orders under the Jharkhand Minor Mineral Concession
Rules, 2004 for the grant of extension of its mining lease till
08.01.2029 i.e. 50 years from the date of grant of original
deed.
13. After lapse of about two years, the State
Government belatedly notified 31 minerals including China
Clay as minor minerals within the ambit of Jharkhand
Minor Mineral Concession Rules, 2004 vide notification
dated 06.09.2016 which was later published as Gazette
Notification No. 108 dated 27.01.2017.
14. Since there was an inordinate delay in the matter of
passing an order regarding the pending renewal
applications of the Petitioner Company, it was compelled to
approach the High Court by filing writ petition being W.P.
(C) No. 932/2017 for extension of its mining lease for 50
years with effect from date of first grant.
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15. During pendency of the said writ application, the
State Government notified the Jharkhand Minor Mineral
Concession Amendment Rules, 2017 vide Gazette
notification no. 149 dated 02.03.2017 and inserted Rule
9(10) allowing deemed extension of the mining lease of the
31 recently notified minor minerals for a period upto
31.03.2020 and in view of the above-mentioned
notification, the Petitioner withdrew its writ application
which was allowed by the Hon'ble Court vide order dated
27.03.2017.
16. It is the further case of the writ petitioner that
thereafter, the Deputy Commissioner, Chaibasa granted an
extension of the mining lease of the Petitioner Company for
a period upto 31.03.2020 by executing a supplementary
lease deed registered on 31.08.2017 and subsequently the
consent to operate was granted by the Jharkhand State
Pollution Control Board vide letter contained in Memo No.
2064 dated 29.12.2017.
17. It is contention of the petitioner that the
development and regulation of Mines is a subject matter of
both Union and State List, and hence, the deemed
extension of mining lease in terms of MMDR Act shall
prevail over any other enactment curtailing the period of
lease. The Central Legislation i.e. amended M.M.D.R. Act
provides for the deemed extension of the mining lease for a
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period of 50 years or a period upto 31.03.2020, whichever
is later, but the State Law has omitted to incorporate the
words "for a period of 50 years" and only stipulates for the
extension of mining lease for a period upto 31.03.2020,
which is in contravention to the Central enactment.
Submission made by the learned counsel for the
petitioner
18. Learned counsel appearing for the petitioner, at the
outset, has submitted that he is not pressing the prayer
being prayer No.1(i) which pertains to assailing the validity
of Rule 9(10) of the Jharkhand Minor Mineral Concession
Amendment Rules, 2017. However, it has been submitted
that prayer No.1(ii) is being pressed.
19. The learned counsel, in order to press the prayer
No.1(ii), has taken the following grounds: -
(i) The lease of the writ petitioner has been granted
sometime in the year 1979 for China Clay, the day
when the China Clay was under the major mineral.
(ii) Initially the lease was for 10 years and it has been
extended up to the year 1999.
(iii) The due application was submitted for extension of
the lease deed but the said application was kept
pending.
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(iv) It has been submitted that in the meanwhile, the
nature of China Clay has been changed from major
mineral to minor mineral.
(v) The ground, therefore, has been taken that the lease
deed was under the major mineral granted in the year
1979 and the due application was pending before the
State authority for its extension after the year 1999
and in the meanwhile, due to the amendment
incorporated in Section 8A by virtue of amendment in
the MMDR Act, 2015, particularly, Section 8A(3)
thereof, the subsisting period for the mining lease will
be for 50 years which will be counted from the year
1979 and, as such, the validity of the lease deed would
be up to the year 2029.
(vi) It has been contended that even accepting that the
nature of China Clay has been changed from major
mineral to minor mineral, then also in view of the
provision of Rule 9(छ) of JMMC Rule 2004 (herein
referred as rule 2004), the validity of the lease will be
till the date of its operation and by taking aid of
Section 8A(3) of the Act 1957, the same will be valid
upto the year 2029 even if it has come under the fold
of minor mineral.
(vii) The argument has been advanced that the provision
as under Rule 9(छ) of Rules 2004 takes care of the
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interest of the writ petitioner reason being, the
provision has been made therein that even though
after 31.03.2022 the allotment is to be made only
through auction and there will be no
renewal/extension but if the validity of lease is beyond
the period of 31.03.2022 then till the date of validity,
the lease will be operative. Herein, by virtue of
provision of Section 8A(3) of the Act 1957, the validity
of lease will be for 50 years from the date of grant of
lease, i.e., on 09.01.1979, which will end in the year
2029 and hence, the lease will be valid up to
08.01.2029 even though the statutory restriction is
available under Rule 9(छ) of Rules 2004.
(viii) Learned counsel has relied upon the following
judgments in support of his argument on the issue of
deeming fiction of the statutory provision: -
(i) State of Bombay v. Pandurang Vinayak
Chaphalkar and Others [(1953) 1 SCC 425]
(ii) Bharat Petroleum Corporation Ltd. V. P.
Kesavan and Another [(2004) 9 SCC 772]
(iii) Manish Trivedi v. State of Rajasthan [(2014)
14 SCC 420]
(iv) Common Cause v. Union of India and Others
[(2016) 11 SCC 455]
(v) Krishna Rai (Dead) through legal
representatives and others v. Banaras Hindu
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University through Registrar and Others
[(2022) 8 SCC 713]
Submission made by the learned counsel for the State
20. Per contra, Mr. Ratnesh Kumar, learned Standing
Counsel (L&C)-I, appearing for the State, while opposing the
ground taken on behalf of the petitioner has submitted that
it is not a case where the provision of Section 8A is
applicable since Section 8A of the Act 1957 does not include
the China Clay, rather, the China Clay is under the Second
Schedule which is to be dealt with under the relevant
provision of Rule 9 of the JMMC Rule 2004 .
21. The ground has been taken that it is incorrect on
the part of the writ petitioner to take aid of the provision of
Section 8A of the M.M.D.R. Act, 1957, reason being that the
petitioner, after the completion of the period of lease of 10
years, which was extended and when it was operative till
the year 1999, made due application for extension/renewal
but when no order was passed on his application, the
petitioner filed writ petition being W.P.(C) No.932/2017 but
subsequently the said writ petition was withdrawn.
Thereafter, the writ petitioner has made application for
renewal of the lease which has been considered in terms of
the provision of Jharkhand Minor Mineral Concession
Rules, 2004 after the China Clay having been declared to
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be minor mineral. The lease was granted and lost its validity
after 31.03.2020.
22. It has, therefore, been contended that once the writ
petitioner himself has accepted the jurisdiction of the
Jharkhand Minor Mineral Concession Rules, 2004, now it
is not available for him to take aid of the provision of Section
8A(3) of the Act 1957 to count the validity of the period of
lease of 50 years from 1979, rather, the validity of the lease
has already expired on 31.03.2020 and on consideration of
the provision of Rule 9(छ) of Rule 2004, there cannot be any
extension/renewal of the lease after 31.03.2022.
23. The argument has been advanced that the
judgments upon which the reliance has been placed are not
applicable in the facts of the present case.
Submission of the learned counsel for the Union of
India:
24. The Learned Counsel for Union of India has
submitted that in exercise of powers conferred by clause (e)
of Section 3 of MMDR Act the Central Government vide
Notification dated 10.02.2015 declared 31 minerals as
minor mineral and in the said list China-Clay was included.
Therefore, it has been contended that since as per Section
14 of the Act 1957, provisions of Section 5 to 13 of the Act
do not apply to the minor mineral therefore Section 8A will
not be applicable herein.
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25. It has further been contended that by virtue of
Section 15 of the Act 1957 the State Governments are
empowered to make rules for regulating the grant of quarry
leases, mining leases or other mineral concessions in
respect of minor minerals and for purposes connected
therewith, and since the China-clay has been notified as
minor mineral and in view thereof, the case of the petitioner
has to be regulated in accordance with provisions of JMMC
Rule 2004, as amended time to time.
Consideration
26. We have heard learned counsel for the parties and
gone through the pleading made in the writ petition as also
the relevant provisions of law which require consideration
in the present case.
27. This Court, on consideration of the rival
submission, needs to consider the following issues: -
(i) Whether the provision of Section 8A of the M.M.D.R.
Act, 1957 is applicable once the writ petitioner has
accepted the jurisdiction of the Jharkhand Minor
Mineral Concession Rules, 2004 by making
application and based upon that the lease was
extended till 31.03.2020, after change in the nature of
China Clay from Major to Minor Mineral?
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(ii) Whether the supplementary lease can be construed to
be the subsisting lease/currency of lease within the
meaning of section 8(A)(3)?
28. This Court deems it fit and proper to refer some
admitted facts before answering the said issues.
29. The lease was granted in favour of the writ petitioner
to carry out the mining operation of China Clay sometime
in the year 1979 and in consequence thereof, a lease deed
was entered into on 09.01.1979 which was initially for 10
years.
30. The validity of lease was extended for a further
period of 10 years making it operative up to 08.01.1999.
31. The writ petitioner, before expiry of the period of
lease, has made application for further renewal. While it
was lying pending, the nature of China Clay has been
changed from Major Mineral to Minor Mineral by virtue of
notification issued by the competent authority.
32. The writ petitioner has filed writ petition being
W.P.(C) No.932/2017 for extension of its mining lease for
50 years with effect from the date of its initiation.
33. It needs to refer herein that the writ petition being
W.P.(C) No.932/2017 was preferred after lapse of about 18
years from the date of expiry of the period of lease which
expired in the year 1999 but the same has been withdrawn
vide order dated 27.03.2017.
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34. The reason for withdrawal of the writ petition was
that the State Government has notified the Jharkhand
Minor Mineral Concession Amendment Rules, 2017 vide
Gazette Notification No.149 dated 02.03.2017 and inserted
Rule 9(10) allowing deemed extension of the mining lease of
31 recently notified minor mineral for the period
31.03.2020.
35. The writ petitioner, in view of the aforesaid
notification, withdrew its writ petition which was allowed by
this Court vide order dated 27.03.2017.
36. The Deputy Commissioner, Chaibasa, thereafter,
has granted extension of the mining lease of the Petitioner
Company for a period upto 31.03.2020 by executing a
supplementary lease deed registered on 31.08.2017. The
aforesaid fact would be evident from averment made in
paragraphs 20, 21, 22 and 23 of the instant writ petition
which are being referred herein: -
"20. That it is submitted that since there was an inordinate
delay in the matter of passing an order regarding the pending
renewal applications of the Petitioner Company, it was
compelled to approach the Hon'ble High Court vide W.P. (C)
No. 932/2017 for extension of its mining lease for 50 years
with effect from date of first grant.
21. That it is submitted that during the pendency of the said
writ application, the State Government notified the
Jharkhand Minor Mineral Concession Amendment Rules,
2017 vide Gazette notification no. 149 dated 02.03.2017 and
inserted Rule 9(10) allowing deemed extension of the mining
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lease of the 31 recently notified minor minerals for a period
upto 31.03.2020.
22. That it is submitted that in view of the above-mentioned
notification, the Petitioner withdrew its writ application
which was allowed by the Hon'ble Court vide order dated
27.03.2017.
23. That it is submitted that thereafter, the Deputy
Commissioner, Chaibasa granted an extension of the mining
lease of the Petitioner Company for a period upto 31.03.2020
by executing a supplementary lease 31,08 deed registered on
12.09.2017 and subsequently the consent to operate was
granted by the Jharkhand State Pollution Control Board vide
letter contained in Memo No. 2064 dated 29.12.2017."
37. From the factual aspect it is evident that the writ
petitioner has filed the instant writ petition after the
amendment in the M.M.D.R. Act, 1957 inserting the
provision of Section 8A wherein the provision has been
made with respect to the period of grant of mining lease for
minerals other than Coal, Lignite and atomic minerals, for
ready reference, Section 8A is being quoted hereunder as :-
"8A. (1) The provisions of this section shall apply to minerals
other than those specified in Part A and Part B of the First
Schedule.
(2) On and from the date of the commencement of the Mines
and Minerals (Development and Regulation) Amendment
Act, 2015, all mining leases shall be granted for the period
of fifty years.
(3) All mining leases granted before the commencement of
the Mines and Minerals (Development and Regulation)
Amendment Act, 2015 shall be deemed to have been granted
for a period of fifty years.
(4) On the expiry of the lease period, the lease shall be put
up for auction as per the procedure specified in this Act.
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(5) Notwithstanding anything contained in sub-sections (2),
(3) and sub-section (4), the period of lease granted before the
date of commencement of the Mines and Minerals
(Development and Regulation) Amendment Act, 2015, where
mineral is used for captive purpose, shall be extended and
be deemed to have been extended up to a period ending on
31st March, 2030 with effect from the date of expiry of the
period of renewal last made or till the completion of renewal
period, if any, or a period of fifty years from the date of grant
of such lease, whichever is later, subject to the condition that
all the terms and conditions of the lease have been complied
with.
(6) Notwithstanding anything contained in sub-sections (2),
(3) and sub-section (4), the period of lease granted before the
date of commencement of the Mines and Minerals
(Development and Regulation) Amendment Act, 2015, where
mineral is used for other than captive purpose, shall be
extended and be deemed to have been extended up to a
period ending on 31st March, 2020 with effect from the date
of expiry of the period of renewal last made or till the
completion of renewal period, if any, or a period of fifty years
from the date of grant of such lease, whichever is later,
subject to the condition that all the terms and conditions of
the lease have been complied with.
(7) Any holder of a lease granted, where mineral is used for
captive purpose, shall have the right of first refusal at the
time of auction held for such lease after the expiry of the
lease period.
(8) Notwithstanding anything contained in this section, the
period of mining leases, including existing mining leases, of
Government companies or corporations shall be such as
may be prescribed by the Central Government.
(9) The provisions of this section, notwithstanding anything
contained therein, shall not apply to a mining lease granted
before the date of commencement of the Mines and Minerals
(Development and Regulation) Amendment Act, 2015, for
which renewal has been rejected, or which has been
determined, or lapsed."
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38. The learned counsel for the petitioner has
emphatically relied upon the provision of Section 8A(3) of
the Act 1957 wherein it has been provided that "all mining
leases granted before the commencement of the Mines and
Minerals (Development and Regulation) Amendment Act,
2015 shall be deemed to have been granted for a period of
fifty years".
39. It needs to refer herein that the writ petitioner has
preferred the writ petition initially challenging the validity
of Rule 9(10) of the Jharkhand Minor Mineral Concession
Amendment Rules, 2017 with subsequent prayer to extend
the leasehold of the petitioner for Chine Clay for a period of
50 years as per provision of Section 8A(3) of the M.M.D.R.
Act, 1957.
40. The emphasis of argument of the writ petitioner is
that the lease deed was operative up to 31.03.2020 and, as
such, on the strength of provision of Section 8A(3), the
same is to be extended for 50 years from initial grant of
lease, i.e., with effect from 09.01.1979 and by virtue of that,
the same will be operative till 08.01.2029 and thereby the
provision of Rule 9 of the J.M.M.C. Rules, 2004 amended
in 2017 will be of the aid of the writ petitioner and for that
reason the validity of the provision of Rule 9(10) of Rules
2004, although has specifically been prayed at paragraph
1(i) but has not been pressed and the petitioner is confining
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the prayer with respect to prayer No.1(ii) seeking extension
of 50 years of the lease.
41. It is on the basis of the aforesaid admitted fact, this
Court is now proceeding to answer the issues.
42. It requires to refer herein that minor minerals mean
the minerals other than the minerals specified in First
Schedule and these therefore become a State subject and
are also defined in Section 3(e) of MMDR Act, 1957. For
regulation of minor minerals, Ministry of Mines,
Government of India has prescribed Minor Mineral
Concession Rules to be formulated at the State level. Within
these rules, minor minerals are specified under different
categories or simply a list of minor minerals is provided.
Section 15 of the MMDR Act, 1957 gives power to the State
Governments to make rules in respect of minor minerals.
Therefore, each State must have Minor Mineral Concession
Rules. It is in conjunction with these minor mineral rules
that the provisions may facilitate more local governance.
For ready reference Section 3(e) of the Act 1957 is being
quoted herein:
3. Definitions.―In this Act, unless the context
otherwise requires,―
(e) "minor minerals" means building stones, gravel,
ordinary clay, ordinary sand other than sand used for
prescribed purposes, and any other mineral which the
Central Government may, by notification in the Official
Gazette, declare to be a minor mineral;
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43. Thus, from the aforesaid it is evident that Act, 1957
defines "minor minerals" as building stones, gravel,
ordinary clay, ordinary sand (excluding that used for
prescribed purposes), and any other mineral declared to be
a minor mineral by the Central Government through an
official notification. The Central Government has the power
to add any other mineral to this list as a "minor mineral" by
issuing a notification in the Official Gazette. Herein
admittedly by virtue of notification dated 10.02.2015 the
Major mineral China-Clay became categorized into minor
mineral. For ready reference the notification dated
10.02.2015 is being quoted herein:
MINISTRY OF MINES
NOTIFICATION
New Delhi, the 10th February, 2015
S.O. 423(E). In exercise of the powers conferred by clause
(e) of section 3 of the Mines and Minerals (Development
and Regulation) Act, 1957 (67 of 1957), the Central
Government hereby declares the following minerals to be
minor minerals in addition to the minerals already
declared by notification as minor minerals hereinbefore
under the said clause:
--------------
(vii) China Clay;
-------------
44. Further by virtue of Section 15(1A) (d) of Act 1957
the State Government has power to make rules in relation
to Minor Mineral, for ready reference same is being quoted
as under:
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15.Power of State Governments to make rules in
respect of minor minerals.-(1)The State Government may,
by notification in the Official Gazette, make rules for,
regulating the grant of ³(quarry leases, mining leases or
other mineral concessions) in respect of minor minerals
and for purposes connected therewith.
1[(1A) In particular and without prejudice to the
generality of the foregoing power, such rules may provide
for all or any of the following matters, namely:-
(d) the terms on which, and the conditions subject to
which and the authority by which quarry leases, mining
leases or other mineral concessions may be granted or
renewed"
45. Thus, from the aforesaid it is evident that the
Section 15 of the Act 1957 confers power upon the State
Governments to make Rules in respect of Minor Minerals.
Section 15(1A) (d) provides that the State Government may
make Rules providing the terms on which, and the
conditions subject to which and the authority by which
quarry leases, mining leases or other mineral concessions
may be granted or renewed.
46. In "Doiwala Sehkari Shram Samvida Samiti Ltd.
v. State of Uttaranchal and Others" reported in (2007) 11
SCC 641 it has been held by the Hon'ble Supreme Court
that in so far as Minor Minerals are concerned, Section 15
of the Act 1957 confers power upon the State Government
to make Rules.
47. It needs to refer herein that the State Government
of Jharkhand had already notified 31 minerals including
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China Clay as minor minerals within the ambit of
Jharkhand Minor Mineral Concession Rules, 2004 vide
notification dated 06.09.2016 which was later published as
Gazette Notification No. 108 dated 27.01.2017, for ready
reference the same is being quoted herein which reads as
under:
झारखण्ड गजट
असाधारण अंक
झारखण्ड सरकार द्वारा प्रकाशित
संख्या- 108
रााँची, िुक्रवार,
6 माघ, 1938 (ि०)
27 जनवरी, 2017 (50)
उद्योग, खान एवं भूतत्व शवभाग
अशधसूचना 6 शसतम्बर, 2016,
संख्या-ख०नि० (निनिध)-71/2016-1653/एम- भारत का
राजपत्र संख्या-333, नििांक 10 फरिरी, 2015 में प्रकानित खाि मंगलय,
भारत सरकार की अनधसूचिा संख्या-का०आ० 423(3), नििांक 10
फरिरी, 2015 द्वारा खाि और खनिज का (निकास और निनियमि)
अनधनियम, 1957 (1957 का 67) की धारा-3 के खण्ड (ड) द्वारा पित्त
िक्तियााँ का प्रयोग करते हुए केन्द्र सरकार द्वारा पहले से ही लघु खनिज के
रूप में घोनित खनिजों के अनतररि 31 खनिजों को गौण खनिज (Minor
Mineral) पोनित नकए जािे के फलस्वरूप निम्ननलक्तखत गौण खनिजों की
झारखण्ड लघु खनिज समिुिाि नियमािली, 2004 में लघु खनिज (Minor
Mineral) के रूप में िानमल नकया जाता है .-
--------
vii. नचिी नमट्टी
------------
48. It requires to refer herein that time-to-time
amendment has been carried out in MMDR Act 1957 as well
as in Rules 2004 and the said amendments has been
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carried out either in compliance of judgment passed by the
Hon'ble Apex Court or in order to meet out the objective of
sustainable development by adopting transparent method.
49. The Hon'ble Apex Court in the case of Goa
Foundation v. Union of India and Others,. [(2014) 6 SCC
590] has observed that 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 constitutional provisions. For ready
reference the relevant paragraph is being quoted as under:
81. We are of the considered opinion that 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 constitutional
provisions and the decision taken by the State of Goa to
grant a mining lease in a particular manner or to a
particular party can be examined by way of judicial
review by the Court. To quote the opinion of four Judges
out of five Judges expressed by D.K. Jain, J. in Natural
Resources Allocation, In re, Special Reference No. 1 of
2012 [(2012) 10 SCC 1] : (SCC pp. 98-99, para 149)
"149. ... 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 purpose,
and precious and scarce natural resources are
alienated for commercial pursuits of profit maximising
private entrepreneurs, adoption of means other than
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those that are competitive and maximise revenue may
be arbitrary and face the wrath of Article 14 of the
Constitution. Hence, rather than prescribing or
proscribing a method, we believe, a judicial scrutiny of
methods of disposal of natural resources should
depend on the facts and circumstances of each case,
in consonance with the principles which we have culled
out above. Failing which, the Court, in exercise of
power of judicial review, shall term the executive action
as arbitrary, unfair, unreasonable and capricious due
to its antimony with Article 14 of the Constitution."
50. Herein the State Government has carried out
amendment in JMMC Rule 2004 and statutory restriction
has been inserted that there cannot be any
renewal/extension after 31.03.2020 (later on extended till
31.03.2022) as per the provision of Rule 9, particularly the
provision as contained in Rule 9 (छ), wherein it has been
provided that if the validity of lease is operative after
31.03.2020, there cannot be extension thereafter on the
principle that all the allotment through settlement is to be
made by way of auction .
51. It requires to refer herein that the Hon'ble Apex
Court in the judgment rendered in the case of Manohar Lal
Sharma v. Union of India, (2014) 9 SCC 516 has
categorically held that "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 590)
Goa Foundation wherein, following Natural Resources
Allocation Reference, it is stated, ".., it is for the State
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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."
52. In the same judgment the Hon'ble Apex Court has
declared all allocations of the coal blocks made through
Screening Committee and through Government
Dispensation route since 1993 as illegal and has cancelled
the allocation of 204 coal blocks out of 218 coal blocks (i.e.
except, Tasra coal block allocated to Steel Authority of India
Ltd. and Pakri Barwadih coal block allocated to National
Thermal Power Corporation and 12 coal blocks allocated for
Ultra Mega Power Projects) the relevant paragraph of the
said judgment is being referred herein:-
110. The above facts show that it took almost 8 years
in putting in place allocation of captive coal blocks
through competitive bidding. During this period, many
coal blocks were allocated giving rise to present
controversy, which was avoidable because competitive
bidding would have brought in transparency, objectivity
and very importantly given a level playing field to all
applicants of coal and lowered the difference between the
market price of coal and the cost of coal for the allottee
by way of premium which would have accrued to the
Government. Be that as it may, once it is laid down by
the Constitution Bench of this Court in Natural
Resources Allocation, In re [Natural Resources Allocation,
In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1]
that the Court cannot conduct a comparative study of
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various methods of distribution of natural resources and
cannot mandate one method to be followed in all facts
and circumstances, then if the grave situation of shortage
of power prevailing at that time necessitated private
participation and the Government felt that it would have
been impractical and unrealistic to allocate coal blocks
through auction and later on in 2004 or so there was
serious opposition by many State Governments to
bidding system, and the Government did not pursue
competitive bidding/public auction route, then in our
view, the administrative decision of the Government not
to pursue competitive bidding cannot be said to be so
arbitrary or unreasonable warranting judicial
interference. It is not the domain of the Court to evaluate
the advantages of competitive bidding vis-à-vis other
methods of distribution/disposal of natural resources.
However, if the allocation of subject coal blocks is
inconsistent with Article 14 of the Constitution and the
procedure that has been followed in such allocation is
found to be unfair, unreasonable, discriminatory,
nontransparent, capricious or suffers from favouritism or
nepotism and violative of the mandate of Article 14 of the
Constitution, the consequences of such unconstitutional
or illegal allocation must follow.
160. The entire exercise of allocation through Screening
Committee route thus appears to suffer from the vice of
arbitrariness and not following any objective criteria in
determining as to who is to be selected or who is not to
be selected. There is no evaluation of merit and no inter
se comparison of the applicants. No chart of evaluation
was prepared. The determination of the Screening
Committee is apparently subjective as the minutes of the
Screening Committee meetings do not show that selection
was made after proper assessment. The project
preparedness, track record, etc. of the applicant company
were not objectively kept in view. Until the amendment
was brought in Section 3(3) of the CMN Act w.e.f. 9-6-
1993, the Central Government alone was permitted to
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mine coal through its companies with the limited
exception of private companies engaged in the production
of iron and steel. By virtue of the bar contained in Section
3(3) of the CMN Act, between 1976 and 1993, no private
company (other than the company engaged in the
production of iron and steel) could have carried out coal
mining operations in India. Section 3(3) of the CMN Act,
which was amended on 9-6-1993 permitted private sector
entry in coal mining operations for captive use. The power
for grant of captive coal block is governed by Section
3(3)(a) of the CMN Act, according to which, only two kind
of entities, namely, (a) the Central Government or
undertakings/corporations owned by the Central
Government; or (b) companies having end-use plants in
iron and steel, power, washing of coal or cement can carry
out coal mining operations. The expression "engaged in"
in Section 3(3)(a)(iii) means that the company that was
applying for the coal block must have set up an iron and
steel plant, power plant or cement plant and be engaged
in the production of steel, power or cement. The
prospective engagement by a private company in the
production of steel, power or cement would not entitle
such private company to carry out coal mining operation.
Most of the companies, which have been allocated coal
blocks, were not engaged in the production of steel, power
or cement at the time of allocation nor in the applications
made by them any disclosure was made whether or not
the power, steel or cement plant was operational. They
only stated that they proposed to set up such plants.
Thus, the requirement of end-use project was not met at
the time of allocation.
163. To sum up, the entire allocation of coal block as per
recommendations made by the Screening Committee
from 14- 7-1993 in 36 meetings and the allocation
through the Government Dispensation Route suffers
from the vice of arbitrariness and legal flaws. The
Screening Committee has never been consistent; it has
not been transparent; there is no proper application of
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mind; it has acted on no material in many cases; relevant
factors have seldom been its guiding factors; there was
no transparency and guidelines have seldom guided it.
On many occasions, guidelines have been honoured more
in their breach. There was no objective criteria, nay, no
criteria for evaluation of comparative merits. The
approach had been ad hoc and casual. There was no fair
and transparent procedure, all resulting in unfair
distribution of the national wealth. Common good and
public interest have, thus, suffered heavily. Hence, the
allocation of coal blocks based on the recommendations
made in all the 36 meetings of the Screening Committee
is illegal.
53. Consequently, the Hon'ble Apex Court in the same
case i.e., Manohar Lal Sharma v. Principal Secy., (2014)
9 SCC 614 has cancelled the coal blocks, the relevant
paragraphs are being quoted as under:
32. As far as the first category of coal block
allotments is concerned, they must be cancelled (except
those mentioned in the judgment). There is no reason to
"save" them from cancellation. The allocations are illegal
and arbitrary; the allottees have not yet entered into any
mining lease and they have not yet commenced
production. Whether they are 95% ready or 92% ready or
90% ready for production (as argued by some learned
counsel) is wholly irrelevant. Their allocation was illegal
and arbitrary, as already held, and therefore we quash all
these allotments.
33. The learned Attorney General identified 46 coal
blocks that could be "saved" from the guillotine, since all
of them have commenced production or are on the verge
of commencing production. As these allocations are also
illegal and arbitrary they are also liable to be cancelled.
However, the allotment of three coal blocks in Annexure
1 is not disturbed and they are Moher and Moher Amroli
Extension allocated to Sasan Power Ltd. (UMPP) and
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Tasra [allotted to Steel Authority of India Ltd. (SAIL), a
Central Government public sector undertaking not
having any joint venture].
54. The Hon'ble Apex Court in the case of Common
Cause v. Union of India, (2016) 11 SCC 455 has also
opined that the insertion of Section 8-A into the MMDR Act
was to address the hardship faced by the leaseholders,
besides other reasons, due to the second and subsequent
applications for renewal remaining unattended at the
hands of the State Government, for ready reference the
relevant paragraph is being quoted as under:
28. The conclusion drawn by us in the foregoing
paragraph also emerges from the "Objects and Reasons"
of the amended MMDR Act. The purpose for which the
instant amendment came to be made by Parliament
whereby the amended Section 8-A was inserted into the
MMDR Act reveals that past litigation resulting in
different interpretations of the provisions of the MMDR
Act and the alleged hardship caused to the mining
industry due to second and subsequent renewals
remaining pending with the State Government without
any decision, had occasioned the passing of the instant
amendment. The above position emerges from the
following excerpts of the Statement of "Objects and
Reasons":
"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
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concessions. Auctioning of mineral concessions
would improve transparency in allocation. The
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
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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."
29. From a perusal of the extract reproduced above, it is
apparent that the insertion of Section 8-A into the MMDR
Act was to address the hardship faced by the
leaseholders, besides other reasons, due to the second
and subsequent applications for renewal remaining
unattended at the hands of the State Government. The
instant amendment to the MMDR Act introduced a
uniform original grant period of fifty years for all mining
leaseholders. It also excluded renewal(s) after the expiry
of the original lease period. Accordingly, no renewal
application can now be filed (after 12-1-2015). Under
sub-sections (5) and (6) of Section 8-A, in our view such
leaseholders who had moved applications for renewal of
captive/non-captive mines would be entitled to continue
up to 31-3-2030/31-3-2020. The "Objects and Reasons"
for the amendment to the MMDR Act aim at remedying
the position which emerged upon the interpretation of the
provisions of the MMDR Act as they existed hitherto
before. The instant amendment was also directed at
remedying the grievances of the mining industry due to
"second and subsequent renewals" remaining pending.
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And also, because the provisions of law relating to
renewals had been found to be wanting. The above view
is also endorsed by the fact that Section 8-A(9) deals with
a situation wherein "... renewal has been rejected...". It is
therefore apparent that sub-sections (5) and (6) of Section
8-A of the amended MMDR Act are aimed at situations
wherein an application for renewal (validly made) has
remained unattended. Therefore, for no fault of the
leaseholder he would be subjected to an arbitrary
prejudice. It needs to be clarified that since an application
for renewal cannot be filed after 12-1-2015, an
application for renewal as would be treated as having
been validly made, ought to have been made before 12-1-
2015. We are of the view that out of the three
contingencies contemplated under Sections 8-A(5) and 8-
A(6) referred to above the first of the contingencies
positively pertains to a situation wherein applications
validly made for renewal were pending without any final
decision at the hands of the State Government. Because
in the absence of a renewal application, the leaseholder
can be taken to have already expressed his disinterest to
continue mining operations. Therefore logically, the
words "... with effect from the date of expiry of the period
of renewal last made...", should relate to an expired lease
prior to 12-1-2015 in relation to which a valid application
for renewal had already been made.
55. Thus, from the aforesaid it is evident that the reason
for incorporating the amendment in the MMDR Act and
J.M.M.C. Rules, 2004 was the law laid down by the Hon'ble
Apex Court in the case of Goa Foundation , Manohar Lal
Sharma case and Common Cause (supra), which would
be evident from perusal of some of the paragraphs which
are being referred hereinabove that the practice of
renewal/extension of the lease has been deprecated.
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56. It needs to refer herein that the Hon'ble Apex Court
has also appreciated the application of Section 8-A(2) of the
amended MMDR Act in the case of Common Cause vs.
Union of India and Ors, (supra), for ready reference the
relevant paragraphs of the said Judgment are being quoted
as under:
6. A leaseholder would have a subsisting mining lease if
the period of the original grant is in currency.
Additionally, a leaseholder whose original lease has since
expired would have a subsisting lease if the original lease
having been renewed, the renewal period is in currency.
20. In terms of Section 8-A(2) of the amended MMDR Act,
all future mining grants would be for a uniform period of
fifty years. Section 8-A(3) envisages that all original
mining lease grants made prior to the insertion of Section
8-A in the MMDR Act (with effect from 12-1-2015) would
also be deemed to have been made for a period of fifty
years."
57. We, after going through the observation made in
paragraph 20 of the judgment rendered in the case of
Common Cause vs. Union of India and Ors, (supra)
reliance upon which has also been made on behalf of the
petitioner, have found that the observation has been made
to the extent that in terms of Section 8A(2) of the amended
M.M.D.R. Act, all future mining grants would be for a
uniform period of 50 years.
58. We have also gone through paragraph-6 of the said
judgment, i.e., Common Cause vs. Union of India and
Ors, (supra), as referred hereinabove, wherein it has been
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observed that a lease holder would have a subsisting
mining lease if the period of original grant is in currency.
Additionally, a lease holder whose original lease has once
expired would have a subsisting lease if the original lease
having been renewed, the renewal period is in currency.
It is thus, evident that if the observation made at
paragraph 6 will be taken into consideration along with
paragraph 20, of the said judgment it would be evident that
the applicability of the provision of Section 8A (2) and 8A
(3) of the M.M.D.R. Act will depend in a case where the lease
holder would have a subsisting mining lease under the
MMDR Act 1957, if the period of the original grant is in
currency. Further, also in a situation that a lease holder
whose original lease has since expired, would have a
subsisting lease if the original lease having been renewed
and the renewal period is in currency. The paragraphs 6
and 20 of the said judgment have been quoted hereinabove.
59. Further Section 8A (3) of the M.M.D.R. Act, 1957
envisages that all mining lease grants made prior to
insertion of Section 8A in the M.M.D.R. Act with effect from
12.01.2015 would also be deemed to have been made for a
period of 50 years.
60. It needs to refer herein that in light of the judicial
pronouncements, as referred hereinabove, the necessary
amendment has been carried out by the State Government
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under the provision of Rule 9 of the J.M.M.C. Rules, 2004
in year 2017,2019 and 2020, for ready reference, the
relevant provision of Rule 9 of Rules 2004 is being referred
herein :-
"9(1) (क)-रै यती भूनम के 03.00 हे० क्षेत्र एिं उससे कम क्षेत्र पर पत्थर,
मोरम एिं नमट्टी लघु खनिज के खिि पट्टा उपायुि द्वारा स्वीकृत नकया
जाएगा।
परन्तु नक सभी सरकारी क्षेत्र एिं झारखण्ड लघु खनिज समिुिाि (संिोधि)
नियमािली, 2019 के नियम-6(ख) के परन्तु में उल्लेक्तखत क्षेत्र एिं खनिज को
छोड़कर सभी रै यती क्षेत्र पर बालू छोड़कर अन्य सभी लघु खनिज के खिि
पट्टा की स्वीकृनत झारखण्ड लघु खनिज िीलामी नियमािली, 2017 में
निरूनपत प्रािधािों के अन्तगगत इलैक्टानिक िीलामी के माध्यम से नििे िक,
खाि के द्वारा नकया जाएगा। परन्तु राज्य सरकार आिश्यकतािुसार िीलामी
हेतु उपायुि को भी प्रानधकृत कर सकती है.
9(घ) इस अनधसूचिा के निगगत होिेकी नतनि से पूिग में सरकारी क्षेत्र एिं 5.00
हे. क्षेत्र सेअनधक के रै यती क्षेत्र पर खिि पट्टे हेतु प्राप्त आिेिि पत्र स्वतः
अयोग्य हो जाएं गे।
9(ङ) सरकारी क्षेत्र एिं 05.00 हे 0 क्षेत्र से अनधक के रै यती क्षेत्र पर प्राप्त
िैसे आिेिि पत्र नजसमें इस अनधसूचिा निगगत होिे की नतनि से पूिग झारखण्ड
लघु खनिज समिुिाि नियमािली, 2004 के नियम 11 अंतगगत Letter of
Intent (आिय का पत्र) निगगत हो चुका है , उसे इस अनधसूचिा के निगगत
होिे की नतनि से 180 नििों के अंिर पयागिरण स्वीकृनत एिं खिि योजि
अनििायग रूप से समनपगत करिा होगा, अन्यिा उिका आिेिि स्वतः
अस्वीकृत हो जाएगा।
9(च) सरकारी क्षेत्र एिं 05.00 हे क्षेत्र से अनधक के रै यती क्षेत्र पर प्राप्त िैसे
खिि पट्टे , जो ििीकरण अन्तगगत िे एिं पयागिरणीय स्वीकृनत खिि योजिा
प्राप्त िहीं रहिे के कारण कालनतरोनहत हो गये हो, उिके पट्टे की अिनध पट्टा
स्वीकृनत/ििीकरण की नतनि से 31 माचग, 2022 तक के नलए अिनध निस्ताररत
मािी जाएगी, बिते नक अनधसूचिा की नतनि के पूिग खिि पट्टा के अस्वीकृनत
/रद्द/व्ययगत होिे का आिे ि िहीं पाररत नकया गया है , परन्तु िैसे खिि पट्टे
पर कोई खिि तब तक िहीं नकया जा सकेगा, जबतक नक खिि हेतु
2025:JHHC:32261-DB
आिश्यक पयागिरणीय स्वीकृनत/िि एिं पयागिरण निभाग की स्वीकृनत खिि
योजिा स्वीकृनत प्राप्त िहीं हो जाता है। आिेिक को सभी िांनछत अिापत्ती
180 नििों के अन्दर समनपगत करिा होगा ।
9(छ) सरकारी क्षेत्र एिं 05.00 हे0 क्षेत्र से अनधक के रै यती क्षेत्र पर
स्वीकृत/ििीकृत खिि पट्टे की अिनध यनि उिकी स्वीकृनत/ििीकरण की
अिनध 3[31 माचग, 2022 के बाि की नतनि हो, तो उिकी अिनध उिकी
स्वीकृनत/ििीकरण की अिनध तक निनधमान्य रहेगी।
9(12) नियम-9 (1) (घ), 9(1)(ङ), 9(1)(च), 9 (1) (छ) तिा 9 (10) पूिग से
स्वीकृत/आिनित लघु खनिज के 5.00 हेक्टेयर क्षेत्र से कम क्षेत्र पर भी लागू
होंगें।"
61. It is evident that there has been an amendment in
the Rules and by virtue of said amendment, under the
provisions of Rule 9(1)(क) under the Jharkhand Minor
Mineral Concession Rules, 2004, lease for mining purpose
can only be granted on holding a proper auction.
62. It is evident from the provision of Rule 9(च) that in
any case, ever after renewal of the lease, initially, the same
is not to be extended beyond the period of 31.03.2020 by
virtue of amendment incorporated w.e.f. 2018, the period
has been extended upto the period of 31.03.2022. The
specific stipulation has been made that even if the license
has been renewed beyond the period of 31.03.2020, the
force of the lease will be upto 31.03.2022.
63. Further, the statutory command after the aforesaid
amendment is for allotment of the mining lease only on the
basis of the auction and a restriction has been put for the
renewal of the lease on the basis of the application made by
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one or the other. The specific provision has been given
under Rule 9 (च) putting complete restriction of renewal on
or after 31.03.2022, rather, the allotment is to be made only
through auction.
64. It is evident from the provision as contained under
Rule 9(छ) as referred above that the license if renewed or
extended the validity of which is after 31.03.2022, then, the
validity of license will remain there upto the period of lease
but there cannot be any extension, thereafter, since as per
the mandate of the provision of Rule 9, the lease is to be
granted by way of auction.
65. It is evident from perusal of Rule 9(ङ) of Jharkhand
Minor Mineral Concession Rules, wherein, it has been
stipulated that within 180 days from the issuance of
notification, the Environmental Clearance has to be
mandatorily produced and if the same is not produced, the
letter of intent/application would be deemed to have been
rejected.
66. Further, there is a provision under Rule 9(ङ) which
was added by way of amendment dated 28.09.2020 and as
per the said provision, in case where due to delay in
granting Environmental Clearance beyond 180 days, which
is not attributable to a lessee, and the lease agreement was
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not approved, in those cases the Revisional Authority was
given power to decide the matter on merits.
67. It is further evident from the provision of Rule 9 (12)
as quoted and referred hereinabove that the mandate of
Rule 9 (1) (घ), 9(1)(ङ), 9(1)(च), 9 (1) (छ) तिा 9 (10) will be
applicable even if the area of land is less than 5 hectares.
68. It has also been provided therein that the reason for
extension from 31.03.2020 to 31.03.2022 is that in the
meanwhile all the processes of allotment through auction
be completed. The specific provision has been made under
Rule 9(छ) that if the lease deed has been granted but
operative beyond the period of 31.03.2022, such lease deed
will be operative till its validity but thereafter there will be
no extension/renewal, rather, the allotment will be made
only through auction.
69. The claim of the writ petitioner that by virtue of
provision of Section 8A(3) of the M.M.D.R. Act, 1957, the
lease is to be extended for further period of 50 years which
will be operative till the year 2029 and by virtue of the
provision of Rule 9(छ) of the J.M.M.C. Rules the same will
be operative till its validity.
70. The petitioner, therefore, wants to take aid of the
J.M.M.C. Rules by merging it with the M.M.D.R. Act, 1957
on the basis of the provision of Section 8A(3).
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71. Such relief cannot be granted because of the reason
that once the rule has been formulated by the State
Government in exercise of power conferred under Section
15 of the M.M.D.R. Act, 1957 and if the mineral has come
under the fold of the J.M.M.C. Rules, then the lease
concerning the minor mineral is to be governed by the
provision of J.M.M.C. Rules, 2004 amended in 2017 and
therefore there will be no application of section 5 to 13 of
the Act 1957 as per the Mandate of the Section 14 of the
Act 1957, for ready reference the same is being quoted as
under:
"14. [Sections 5 to 13] not to apply to minor
minerals. ―The provisions of [sections 5 to 13] (inclusive)
shall not apply to [quarry leases, mining leases or other
mineral concessions] in respect of minor minerals."
72. Further, it is evident from the factual aspect of the
instant case that the aforesaid situation has also been
accepted by the writ petitioner, the moment writ petitioner
has approached this Court by filing writ petition being
W.P.(C) No.932/2017 but the same has been withdrawn
after amendment having been carried out in the J.M.M.C.
Rules on change of the nature of mineral from major to
minor so far as China Clay is concerned and based upon
that the lease was also granted to be operative till
31.03.2020.
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73. It is further admitted fact that the Deputy
Commissioner, Chaibasa, thereafter, has granted extension
of the mining lease of the Petitioner Company for a period
upto 31.03.2020 by executing a supplementary lease deed
registered on 31.08.2017. The aforesaid fact would be
evident from averment made in paragraph 20, 21, 22 and
23 of the instant writ petitions which have been referred
herein above.
74. Thus, the admitted fact as has been pleaded by the
writ petitioner, referred hereinabove in preceding
paragraphs, clarifies that the writ petitioner himself has
accepted the applicability of the J.M.M.C. Rules, 2004
amended in the year 2017 as also enjoyed the benefit under
the said provision by virtue of the extension of the lease up
to 31.03.2020.
75. The question to take aid of the provision of Section
8A (3) of the M.M.D.R. Act, 1957, after the aforesaid
changed situation and admission by the writ petitioner of
applicability of the J.M.M.C. Rules, 2004 amended in the
year 2017, cannot be made applicable that too counting the
grant of lease from the year 1979 for the period of 50 years,
i.e., up to 2029.
76. The law is well settled that once the rule has been
formulated by the State on conferment of power under the
parent Act, i.e., M.M.D.R. Act, 1957, both cannot overlap
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each other which itself is clarified from the arrangement
made in the Constitution of India under the 7th Schedule
wherein the minerals have been enlisted in Entry No.54 in
List-I while in List II it has been referred in Entry No.50.
77. List-I has the subject matter wherein the power to
formulate laws has been conferred to the Central
Government.
78. List-II has the subject matter wherein the laws
making power has been conferred to the State Government
being the State subject.
79. List-III, i.e., concurrent list, has the subject matter
upon which the Central Government as well as State
Government can formulate the law.
80. Under List-I the entry 54 pertains to the minerals.
The Central Government in order to take care of its
development and regulation, has enacted the Act of 1957.
81. Entry 23 in the list-II speaks about 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. Further, Entry 50 in the List-II also
speaks about the Taxes on minerals and, as such, being the
State subject, the State is to formulate its own legislation
to regulate the issue of minor minerals.
82. The issue of overlapping of the Entry-54 of the List-
I and Entry-50 of the List-II has been taken into
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consideration by the Hon'ble Apex Court in the judgment
rendered by the Constitution Bench in the case of Mineral
Area Development Authority & Anr. v. M/S Steel
Authority of India & Anr Etc. reported in 2024 INSC 554
wherein it has been held that the Entry-54 in the List I and
the Entry 50 of the List-II not overlapped to each other,
however, subject to limitation for which the Parliament has
been conferred with the power, the relevant paragraph is
being quoted hereunder as:
"28. Although, the above entries are substantially
similar to the scheme under the GOI Act 1935, one of the
differences lies in the removal of "oil fields" from Entry 54
of List I and Entry 23 of List II. The regulation and
development of oil fields is now enumerated under Entry
53 of List I.18 The other difference is that while the GOI
Act 1935 required a declaration by Federal law, the
Constitution now requires a declaration by Parliament.
The entry pertaining to taxes on mineral rights is largely
similar to Entry 44 of the Provincial Legislative List,
except for the fact that Entry 44 provided for imposition
of "any limitations" by "any Act" enacted by the Federal
Legislature relating to mineral development, while Entry
50 of List II does not include the expression "any Act"
enacted by Parliament. Before we delve into the
intricacies of the interpretation of the legislative entries,
we need to bear in mind the constitutional philosophy
underlying the Indian federal setup.
32. Article 245 (read with Article 246) is the source of the
legislative powers of Parliament and the State
legislatures. The entries in the Seventh Schedule
delineate the subject matter over which the appropriate
legislature can enact laws. The entries are legislative
heads and not the source of legislative powers.24 A
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legislation could be composite in nature, drawing upon
several entries in a particular list.25 Such a legislation is
referred to as a "ragbag" legislation.
33. Article 254 clarifies that if the law made by a State
legislature is repugnant to any provisions of a law made
by Parliament with respect to any of the matters
enumerated in List III, the law made by Parliament would
prevail and the law made by the State legislature would
be void to the extent of the repugnancy. The issue of
repugnancy arises only when both the legislatures are
competent to legislate on the subject with respect to List
III.26 The issue of repugnancy does not arise if the
legislations enacted by Parliament and the State
legislatures deal with separate and distinct legislative
subject matters. By virtue of Article 248, Parliament has
exclusive legislative powers to make laws with respect to
any of the matters not enumerated in List II or List III.27
However, how should courts deal with a situation where
two legislations, enacted by Parliament and State
legislature in pursuance of their respective legislative
powers, appear to conflict with each other? The answer
lies in Article 246 itself.
35. Hoechst Pharmaceuticals (supra) laid down the
following principles to resolve any direct conflict between
the entries in List I and List II: (i) in case of seeming
conflict, the two entries should be read together without
giving a narrow and restricted reading to either of them;
(ii) an attempt should be made to see whether the two
entries can be reconciled so as to avoid a conflict of
jurisdiction; and (iii) no question of conflict arises
between two Lists if the impugned legislation in pith and
substance appears to fall exclusively under one list and
the encroachment upon the other list is incidental.
36. Articles 245 and 246 embody the essence of Indian
federalism. The division of legislative powers between
Union and States is an emanation of the federal project.
This division also serves as a constitutional limitation on
legislative powers. Parliament cannot entrench upon the
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plenary power of the State legislatures in the ordinary
course, except where the Constitution itself specifically
allows it. The appropriate legislature must possess
legislative competence to enact a law on the subject
matter it seeks to legislate.
39. The above position of law has been expressly affirmed
by the nine-Judge Bench of this Court in Jindal Stainless
Ltd v. State of Haryana. Thus, it is an accepted principle
that the subject matter of taxation is dealt with under
distinct entries and, therefore, cannot be traced to a non-
taxing entry. The taxing powers of Parliament and the
State legislatures are mutually exclusive and clearly
demarcated. There can be no overlap between the taxing
powers of the Union and the States. Entries relating to
taxing powers must be construed with clarity and
precision to maintain exclusivity and a construction of a
taxation entry which may lead to overlapping must be
eschewed. If a taxing power is enumerated within a
particular legislative list, it is automatically excluded
from the purview of subject-matters in other legislative
lists. The residuary power of Parliament also includes the
power of making any law imposing a tax not mentioned
in either List II or List III.
41. Many entries in the Seventh Schedule may appear to
overlap because of the language used in the entries. The
necessary corollary to the scheme of legislative
distribution is that that any invasion by Parliament in the
field assigned to the States and vice versa is a breach of
the Constitution. Even though the Constitution
distributes legislative powers between the Union and the
States, there have been situations where a legislation
purporting to deal with a subject in one list, touches on
a subject in another list. To remedy such situation, the
doctrine of pith and substance is used to examine
whether the legislature has the competence to enact a law
with regard to either of the three lists under the Seventh
Schedule of the Constitution. There may arise situations
where a legislature may frame a law that in substance
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and reality transgresses its legislative competence. Such
a piece of legislation is called "colourable legislation"
because the legislature veils its transgression by making
it seem as if the legislation is within its legislative
competence. To examine whether the legislature has
transgressed its legislative competence, the substance of
the legislation is material. If the subject-matter is in
substance beyond the legislative powers of the
legislature, the form in which the law is clothed would not
save it from the vice of unconstitutionality.
42. The Constitution has used specific expressions to
resolve potential overlaps or conflicts between and among
the entries in the three Lists. The entries in the Seventh
Schedule have used different phraseologies to either
subject or restrict their scope and ambit. Some of the
legislative entries in the State List have been made
subject to broad or specific limitations or restrictions with
respect to the entries in the Union List or Concurrent
List.----
43. The above table is an indication of the extent to which
the legislative powers of the States have been restricted,
limited, or altogether precluded. The use of the
expression "other than" or "not including" serves the
purpose of redacting from the ambit of the legislative
power of the States to the extent suggested. Where the
Constitution intends to limit or preclude the legislative
powers of the State to a particular extent, it has used
specific terminologies such as "other than" and "not
including".
44. Where the entries have used the phrase "subject to",
the legislative power of the State is made subordinate to
Parliament with respect to either the Union List or the
Concurrent List. The expression "subject to" conveys the
idea of a provision yielding place to another provision or
other provisions to which it is made subject.45 Therefore,
where the Constitution intends to displace or override46
the legislative powers of the States, it has used specific
terminology - "subject to". However, the Constitution has
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also indicated the extent to which a particular legislative
entry under List II is subordinated. For instance, the
subjection is either with respect to provisions of List I or
List III, or it can also be to the extent of "any limitations"
imposed by Parliament by law. Thus, it is imperative that
the entries in List II must be read and interpreted in their
proper context to understand the extent of their
subordination to Union powers.
47. The Constitution deploys three expressions to signify
the manner in which the legislative power could be
exercised by Parliament - "declared by or under law", and
"declared by Parliament by law", and "imposed by
Parliament by law" The difference in the character of
these provisions can be gathered from the Constitution
(Seventh Amendment) Act 1956 which substituted the
expression "declared by Parliament by law" with
"declared by or under law made by Parliament" in Entry
6748 of the Union List. The object of the amendment was
to enable the delegate under the statute to make the
required declaration.
49 The expression "by law" means that the legislative
power should be effectuated through the provisions of a
statute. In comparison, "by or under law" means that the
legislative intent could be effectuated either through the
provisions of the statute or by any subordinate authority
vested with powers in that behalf by the statute.50 It is
important to note that Entry 50 of List II use the
expression "by law relating to mineral development". We
will have to bear the meaning of the expression "by law"
in mind to give an appropriate interpretation to the entry.
57. The principle which emanates from the above
discussion is that the State holds all natural resources,
including minerals, as a trustee of the public and must
deal with them in a manner consistent with the nature of
such a trust.
58. The Central Government or the State Government
may not always be the "owner" of the underlying
minerals. But the Constitution empowers both
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Parliament (under Entry 54 of List I) and the State
legislatures (under Entry 23 of List II) to regulate mines
and mineral development, the entrustment to the State
being subject to the power of Parliament to regulate the
domain. The Constitution has entrusted the Union and
the States with the responsibility to regulate mines and
mineral development in consonance with the principles
of the public trust doctrine and sustainable development
of mineral resources. Under the MMDR Act, the Central
Government, acting as a public trustee of minerals,
regulates prospecting and mining operations in public
interest.80 In the process, the legislation seeks to
increase awareness of the compelling need to restore the
serious ecological imbalance and protect against damage
being caused to the nature. In Pradeep S Wodeyar v. State
of Karnataka,one of us (Justice D Y Chandrachud)
observed that the essence of the MMDR Act is to "protect
humankind and every species whose existence depends
on natural resources from the destruction which is
caused by rapacious and unregulated mining." The Court
noted that the restrictions under Section 4 of the MMDR
Act are intrinsically meant to protect the environment
and communities who depend on the environment.
83. Further the Hon'ble Apex Court in the case of State
of Uttarakhand and Ors v. Kumaon Stone Crusher,
(2018) 14 SCC 537 has appreciated the issue of
overlapping of the two entries of the Seventh Schedule or
two legislations and has observed that in the event any
overlapping is found in two entries of the Seventh Schedule
or two legislations, it is the duty of the Court to find out its
true intent and purpose and to examine the particular
legislation in its pith and substance, for ready reference the
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relevant paragraphs are being quoted herein which reads
as under:
"112. This Court has time and again emphasised that in
the event any overlapping is found in two entries of the
Seventh Schedule or two legislations, it is the duty of the
Court to find out its true intent and purpose and to
examine the particular legislation in its pith and
substance. In Kartar Singh v. State of Punjab [Kartar
Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 SCC
(Cri) 899] , paras 59 and 60 following has been held: (SCC
p. 630)
"59. ... But before we do so we may briefly indicate the
principles that are applied for construing the entries in
the legislative lists. It has been laid down that the entries
must not be construed in a narrow and pedantic sense
and that widest amplitude must be given to the language
of these entries. Sometimes the entries in different lists
or the same list may be found to overlap or to be in direct
conflict with each other. In that event it is the duty of the
court to find out its true intent and purpose and to
examine the particular legislation in its "pith and
substance" to determine whether it fits in one or other of
the lists. [See Synthetics and Chemicals Ltd. v. State of
U.P. [Synthetics and Chemicals Ltd. v. State of U.P.,
(1990) 1 SCC 109] (SCC pp. 150-51, para 67); India
Cement Ltd. v. State of T.N. [India Cement Ltd. v. State of
T.N., (1990) 1 SCC 12] (SCC p. 22, para 18).]
60. This doctrine of "pith and substance" is applied when
the legislative competence of a legislature with regard to
a particular enactment is challenged with reference to the
entries in the various lists i.e. a law dealing with the
subject in one list is also touching on a subject in another
list. In such a case, what has to be ascertained is the pith
and substance of the enactment. On a scrutiny of the Act
in question, if found, that the legislation is in substance
one on a matter assigned to the legislature enacting that
statute, then that Act as a whole must be held to be valid
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notwithstanding any incidental trenching upon matters
beyond its competence i.e. on a matter included in the
list belonging to the other legislature.
To say differently, incidental encroachment is not
altogether forbidden."
114. Further in Union of India v. Shah Goverdhan L.
Kabra Teachers' College [Union of India v. Shah
Goverdhan L. Kabra Teachers' College, (2002) 8 SCC 228
: 5 SCEC 370] in para 7 the following was laid down: (SCC
pp. 233-34)
"7. It is further a well-settled principle that entries in
the different lists should be read together without giving
a narrow meaning to any of them. Power of Parliament as
well as the State Legislature are expressed in precise and
definite terms. While an entry is to be given its widest
meaning but it cannot be so interpreted as to override
another entry or make another entry meaningless and in
case of an apparent conflict between different entries, it
is the duty of the court to reconcile them. When it
appears to the court that there is apparent overlapping
between the two entries the doctrine of "pith and
substance" has to be applied to find out the true nature
of a legislation and the entry within which it would fall.
In case of conflict between entries in List I and List II, the
same has to be decided by application of the principle of
"pith and substance". The doctrine of "pith and
substance" means that if an enactment substantially
falls within the powers expressly conferred by the
Constitution upon the legislature which enacted it, it
cannot be held to be invalid, merely because it
incidentally encroaches on matters assigned to another
legislature. When a law is impugned as being ultra vires
of the legislative competence, what is required to be
ascertained is the true character of the legislation. If on
such an examination it is found that the legislation is in
substance one on a matter assigned to the legislature
then it must be held to be valid in its entirety even though
it might incidentally trench on matters which are beyond
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its competence. In order to examine the true character of
the enactment, the entire Act, its object, scope and effect,
is required to be gone into. The question of invasion into
the territory of another legislation is to be determined not
by degree but by substance. The doctrine of "pith and
substance" has to be applied not only in cases of conflict
between the powers of two legislatures but in any case,
where the question arises whether a legislation is covered
by particular legislative power in exercise of which it is
purported to be made."
84. Herein the parameter since has been fixed for
applicability of both the Acts, i.e, the Act of 1957 and the
JMMC Rules, 2004 formulated under section 15 of the Act
of 1957, therefore, is having no overlapping effect rather
both provisions are to be enacted by the Central
Government and the State Government so far as the Act of
1957 and JMMC Rules, 2004 respectively are concerned.
85. The issue of intermingling the provision of M.M.D.R.
Act, 1957 with the J.M.M.C. Rules, 2004 amended in 2017
for the purpose of taking aid of the provision of Section
8A(3) of the M.M.D.R. Act, 1957 and simultaneously also to
take aid of Rule 9 of the J.M.M.C. Rules will not be available
for the writ petitioner and in view of the law already laid
down by Hon'ble Apex Court, such argument is
misconceived.
86. Once the writ petitioner has entered into the fold of
the provision of J.M.M.C. Rules, 2004, then it is not
available for him also to take aid of M.M.D.R. Act, 1957
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particularly Section 8A(3) and the moment China Clay has
become minor mineral and the same has been notified by
the State Government by way of the gazette notification
then in such situation the applicability of the section 8A(3)
of the Act 1957 is not available for the petitioner.
87. It requires to refer herein that after confining the
prayer for questioning the validity of Rule 9(10) of the
J.M.M.C. Rules, meaning thereby, the writ petitioner is
accepting that after 31.03.2022 there will be no
extension/renewal of the lease. However, if the lease is valid
after 31.03.2022 then it will be allowed to be operative.
88. But, as has been discussed hereinabove by us that
the benefit of Rule 9(10) of the J.M.M.C. Rules, 2004
amended in 2017, is only available if the lease has been
granted under the provision of J.M.M.C. Rules, 2004
amended in 2017 and the said provision is not allowed to
be taken aid of on the basis of the other provisions, i.e.,
M.M.D.R. Act, 1957, particularly Section 8A (3). This is for
the reason that the applicability of the provisions of
M.M.D.R. Act, 1957 particularly Section 8A (3) will only be
taken aid of if the lease has been granted under the
provision of M.M.D.R. Act, 1957.
89. Initially the lease was granted under the provision
of M.M.D.R. Act, 1957 but subsequently after expiry of the
validity, sometime in the year 1999, although application
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has been said to be filed for its renewal but no endeavour
has been taken fairly for a long period of 17 - 18 years and
this Court has been approached in the year 2017 by filing
writ petition being W.P.(C) No.932/2017, which has been
withdrawn after the State Government has notified
J.M.M.C. Rules, 2017 by virtue of notification no. 149 dated
02.03.2017 by inserting the provision of Rule 9(10) allowing
deemed extension of mining lease of the 31 recently notified
minor minerals for the period up to 31.03.2020.
90. The writ petitioner, thereafter, has withdrawn the
writ petition vide order dated 27.03.2017. The Deputy
Commissioner, Chaibasa has granted the extension up to
31.03.2020. The writ petitioner, therefore, has taken aid of
the JMMC Rule 2004 without insisting the pending
representation which is now being claimed that the
representation submitted for extension/renewal of the
lease granted under M.M.D.R. Act, 1957 was lying pending.
91. But, once the writ petitioner has shifted under the
provision of the J.M.M.C. Rules on effect of change of
nature of mineral from major to minor, then the pending
representation by virtue of the extension already granted in
favour of the writ petitioner in terms of the Government
Notification dated 02.03.2017 will also lose its sanctity and,
hence, it is not acceptable to this Court that the pending
representation for extension of the mining lease which was
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granted in the year 1979 is deemed to be extended up to
2029.
92. The deeming fiction will only come to help the party
if the subsisting right has been created in favour of the
concerned party that could have been on the following
situations: -
(i) If the writ petitioner would have taken the legal
recourse against pending representation submitted
for extension/renewal of the lease as is being said that
for extension of the lease, the application was made in
the year 1999.
(ii) The writ petitioner has taken no legal recourse, rather,
sat idle for about 17 - 18 years.
(iii) The force of the said pending representation will be
deemed to lose its force the moment the writ petitioner
has accepted the benefit under the provision of Rule
9(10) which has been notified by virtue of Gazette
Notification No. 149 dated 02.03.2017.
(iv) The right would have been said to be available in a
case of accrued/vested right if created under any
provision of law, herein, the M.M.D.R. Act, 1957. But
it is not a case of accrued or vested right since the
petitioner himself has shifted to J.M.M.C. Rules, 2004
amended in 2017.
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(v) Even the reliance which has been placed by the
learned counsel appearing for the petitioner in the
case of Common Cause vs. Union of India and Ors,
(supra) is not applicable in the facts of the present
case since the primary requirement is of a subsisting
mining lease and in the said case it has been observed
that a lease holder would have a subsisting mining
lease if the period of original grant is in currency.
Additionally, a lease holder whose original lease has
once expired would have a subsisting lease if the
original lease having been renewed, the renewal period
is in currency.
(vi) It is not the case of the writ petitioner that the lease
holder was having with the subsisting mining lease,
since the original grant was under the provision of
MMDR Act 1957, the day when China Clay was in the
category of Major Mineral.
(vii) Further, it is not the case based upon the facts as
referred hereinabove that the original lease has since
expired but by virtue of its renewal the subsisting
lease is there and the renewal period is in currency,
rather, it is a case where there was no subsisting lease
as the lease was already expired in the year 1999 as
was granted in the year 1979 under the M.M.D.R. Act,
1957.
2025:JHHC:32261-DB
(viii) Further, the lease which was granted on the strength
of provision of Rule 9(10) of the J.M.M.C. Rules, 2004
amended in 2017 cannot be said to be available under
the MMDR Act, 1957 so as to take aid of Section 8A(3)
of MMDR Act, 1957. Moreover, the said lease has also
expired on 31.03.2020.
93. This Court, in view of the aforesaid discussion, is
hereby answering the issues against the writ petitioner.
94. In consequence thereof, the writ petition lacks merit
and accordingly, dismissed.
95. Pending interlocutory applications, if any,
accordingly disposed of.
I agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Dated 16th October, 2025
N.A.F.R.
Birendra/
Uploaded on 17.10.2025
