Union Mineral Corporation vs State And Ors
2023 Latest Caselaw 6681 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR

S.B. Civil Writ Petition No. 3183/2017

Union Mineral Corporation, a registered partnership firm through its power of attorney holder Gauri Shankar Joshi son of Shri Hem Raj Joshi aged 72 years resident of Village Thana, Nichla Bus Stand Tehsil and District Dungarpur.

----Petitioner Versus

1. State of Rajasthan through the Secretary to the Government of Rajasthan, Mines Department, Jaipur.

2. The Director, Mines & Geology Department, (Rajasthan), Udaipur

3. The Mining Engineer, Mines & Geology Department, Dungarpur.

                                                                ----Respondent


For Petitioner(s)         :    Mr. D.D. Thanvi
For Respondent(s)         :    Mr. Digvijay Singh Jasol



              HON'BLE DR. JUSTICE NUPUR BHATI

                                Judgment

Reserved on:        16/08/2023
Pronounced on:      31/08/2023

1. At the joint consent of the learned counsels for the parties, the

matter is heard finally today itself.

2. The present amended writ petition is filed under Article 226 of

the Constitution of India claiming following reliefs:

"It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction:-

i) quash the order dated 13.12.2016 (Annexure-6 and Annexure 7); and

ii) the respondents may be directed to grant the first renewal of mining lease for mineral soapstone permitting the humble petitioner to avail the renewed period of mining

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lease by handing over possession to the humble petitioner within a given time; and

iii) any other appropriate relief which this Hon'ble Court deems it necessary in the facts and circumstances of the present case be granted in favour of the petitioner; and

vi) award the costs of this writ petition to the petitioner against the respondents."

3. The factual matrix of the case is that the petitioner is a

partnership firm and was granted a mining lease for mineral

Soapstone and Asbestos Near Village Ghughra, Tehsil and District

Dungarpur for a period of 20 years w.e.f. 02.05.1970 for an area

measuring 104.415 hectares. During the currency of the lease the

petitioner had surrendered 60.365 hectare area by making a part

surrender application and the same was accepted on 13.03.1989.

4. The petitioner-firm had applied for first renewal of the mining

lease vide application dated 28.04.1989 for 46.06 hectare retained

area, however, the Secretary, Department of Mines, Government

of Rajasthan, Jaipur, Respondent No. 1, did not decide the

renewal application within the time stipulated under the Mineral

Concession Rule, 1960 (hereinafter referred to as 'Rules of 1960')

at the relevant time and the first renewal application came in the

category of deemed to have been refused.

5. The petitioner being aggrieved against the deemed refusal of

the renewal application had filed a Revision Petition (Revision

Application No. 1/RJ-58/91-M.IV) dated 27.04.1991 before the

Central Government, in which the Joint Secretary, Ministry of

Steel and Mines, Department of Mines, Government of India, vide

final order NO.292/1991 dated 13.06.1991 set aside the deemed

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refusal and directed the Secretary, Department of Mines,

Government of Rajasthan, Respondent No. 1, to pass a final and

speaking order on the renewal application of the petitioner within

200 days.

6. The Secretary, Department of Mines, Government of Rajasthan,

Respondent No. 1, vide its order dated 20.07.1993, without any

notice and without affording any opportunity of hearing,

proceeded to reject the renewal application on the ground that the

Central Government had not granted approval under Section 5 (1)

of the Mines and Mineral (Development and Regulation) Act, 1951

(hereinafter referred to as 'the Act of 1951').

7. Thereafter the petitioner being aggrieved by the order dated

20.07.1993 passed by the State Government, Respondent No. 1,

against the refusal of renewal even in respect of mineral

soapstone had filed a civil suit in Case No. 225/93 for Declaration

and Permanent Injunction before the Court of Civil Judge (Junior

Division), Dungarpur, who vide its judgment and decree dated

15.01.2001 dismissed the suit of the petitioner.

8. Being aggrieved against the judgment and decree dated

15.01.2001 passed by the Civil Judge (Junior Division),

Dungarpur, petitioner had filed an appeal in Civil Appeal No.

02/2001 before the court of District Judge, Dungarpur, who also

vide judgment and decree dated 18.10.2006 dismissed the appeal

of the petitioner and affirmed the judgment and decree dated

15.01.2001 passed by the Civil Judge (Junior Division),

Dungarpur.

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9. Thereafter, the petitioner had preferred a second appeal before

this Hon'ble Court being S.B. Civil Second Appeal No. 436/2006,

which was decided by the Judgement dated 10.12.2015 and the

respondents were directed to consider the renewal application of

the petitioner after giving due and proper opportunity of hearing

to the petitioner and also the judgement and decree dated

15.01.2001 passed by Civil Judge (Junior Division), Dungarpur in

Case No. 225/93 and the judgement and decree dated 18.10.2006

passed by District Judge, Dungarpur in Civil Appeal No. 02/2001

were set aside.

10. Earlier to this the Director, Department of Mines and Geology,

Udaipur, Respondent No. 2, vide his letter dated 07.12.1999 had

requested the State Government, Respondent No. 1, that looking

to the nill production of asbestos in the area, it would be in the

interest of the State Government that renewal for mineral

soapstone only is concerned by withdrawing the order dated

20.07.1993.

11. The petitioner in compliance of the judgment dated

10.12.2015 passed in the S.B. Civil Second Appeal No. 436/2006

by this Hon'ble High Court had made a detailed representation

dated 13.01.2006 before the State Government, Respondent

No.1.

12. Then the petitioner had requested by an application dated

09.05.2016 to the Mining Engineer, Department of Mines and

Geology, Udaipur, Respondent No. 3, to accept the surrender of

mineral asbestos in accordance with the Rule 29 (1) of the Rules

of 1960. While submitting that the State Government, Respondent

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No. 1, vide orders dated 23.08.2013 and 28.06.1996 has been

accepting the surrender of mineral asbestos where the mining

leases stood granted for other minerals including asbestos.

13. On the date of commencement of Mines and Minerals

(Development and Regulation) Ordinance, 2015 (hereinafter

referred to as 'Ordinance of 2015') mineral soapstone was a major

mineral and under the Ordinance of 2015, the period of mining

lease under renewal had been directed to be extended to 50 years

and the Department of Mines had extended the period of such

leases in a number of cases.

14. During the pendency of the second appeal, the petitioner had

deposited a sum of Rs. 2,67,840/- vide cheque dated 10.10.2014

against the dead rent and also the petitioner gave undertaking

for depositing any further amount that may be found due against

the petitioner.

15. Thereafter, the State Government, Respondent No. 1, vide

order dated 13.12.2016 has again rejected the renewal application

even for Soapstone while conducting hearing in the matter on

28.09.2016.

16. Thereafter, when this petition came up before this Hon'ble

Court, this court vide order dated 17.03.2023 directed the

respondents to pass a speaking order regarding mineral soapstone

for renewal of the lease of the petitioner in the period of 15 days

strictly in accordance with law while keeping into consideration the

previous order dated 10.12.2015 passed by this court in SB Civil

Second Appeal No. 436/2006 and also keeping into consideration

Annexure 5.

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17. Thereafter, the Secretary, Department of Mines, Government

of Rajasthan, Respondent No. 1, rejected the first renewal

application of the petitioner vide order dated 12.05.2023

(Annexure 7).

18. Hence, the petitioner being aggrieved against the refusal of

renewal of mining lease even in respect of mineral soapstone vide

order dated 12.05.2023 (Annexure 7) files this writ petition.

19. The learned counsel for the petitioner submitted that the

mineral soapstone is neither a banned mineral nor a scheduled

mineral and hence, the State Government has erred in law while

passing the impugned order dated 13.12.2016 by which the State

Government rejected the renewal application filed by the

petitioner and again rejected the renewal application of the

petitioner for mineral Soapstone by the order dated 12.05.2023.

20. The learned counsel for the petitioner also submitted that the

State Government could have granted renewal to the petitioner

way back in the year 1993 itself and thereafter had no authority to

cancel the entire renewal application.

21. The learned counsel for the petitioner further submitted that

the State Government, Respondent No.1, while passing the

impugned order dated 13.12.2016 has over again rejected the

renewal application of the petitioner on the ground that there is

presently no provision for surrender of mineral which is totally

misconceived, as a bare perusal of the office order dated

28.06.1996 passed by Executive Engineer, Department of Mines

(Annexure-5) reveals that the respondent Department of Mines

has been accepting the surrender of mineral asbestos from the

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mining leases, which stood granted for a mineral in addition to

mineral asbestos. However, the surrender of mineral has to relate

back to the year 1993 and has nothing to do with the Rules of

2016 referred to in the impugned order.

22. The learned counsel for the petitioner also submitted that it is

well established on record that there is no availability of mineral

asbestos in the mining lease area and the Director had

categorically recommended for reconsideration of the matter and

for grant of renewal at least for mineral soapstone and there was

no impediment in the way of grant of renewal of mining lease for

mineral soapstone.

23. The learned counsel for the petitioner further submitted that

the another ground for refusal of renewal of mining lease with

effect from 13.10.1989, which was refused in the year 1993,

which led to prolonged litigation, is that the petitioner has not filed

second renewal application, this ground is baseless, inasmuch as,

once the matter was sub-judice and the possession of the area

remained with the Department of Mines, the question of second

renewal application does not arise under such circumstance and

hence, the entire matter is related to first renewal of mining lease

for mineral soapstone alone.

24. The learned counsel for the petitioner also submitted that

during the pendency of Second Appeal, the petitioner had

deposited the sum of Rs. 2,67,840/- vide cheque dated

10.10.2014 against the dead rent demanded and also gave

undertaking that he will deposit any further amount which will be

found due against him.

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25. The learned counsel for the petitioner further submitted that

the renewal of soapstone never required any approval of the

Central Government and the State Government was not powerless

to grant the renewal for mineral soapstone alone and there was no

need of surrender of mineral asbestos.

26. The learned counsel for the petitioner also submitted that the

State Government, Respondent No. 1, while passing the order

dated 13.12.2016 and order dated 12.05.2023 has failed to

consider the material available on record, which resulted in grave

failure of justice to the petitioner.

27. The learned counsel for the petitioner further submitted that

the petitioner is entitled to grant of renewal of mining lease for the

retained area for mineral soapstone and is also entitled to avail

the period, which has been lost on the account of prolonged

litigation.

28. The learned counsel for the petitioner also submitted that the

respondent are under obligation to grant renewal of the lease for

the mineral soapastone as this court vide order dated 17.03.2023

in this writ petition had directed the respondent to pass a

speaking order, but the Secretary, Department of Mines,

Government of Rajasthan, Respondent No. 1, vide order dated

12.05.2023 rejected the renewal application of the petitioner

without appreciating the factual material of the case.

29. The learned counsel for the petitioner drew attention of this

court towards the application (IA No. 3/2023), whereby the

petitioner has brought on record certain documents, i.e; Annexure

A/1 to A/4, annexed with the application.

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30. Per Contra, the learned counsel for the respondents submitted

that the petitioner applied for renewal of mining lease vide

application dated 28.04.1989 and thereafter, proposal for renewal

was sent to the office of the Mining Engineer, Udaipur vide letter

dated 23.1.1990 by the Mining Engineer, Dungarpur. The Mining

Engineer, Udaipur thereafter sent proposal for renewal to the

Director, Department of Mines, Udaipur vide letter dated 8.2.1990

and the Directorate sent the proposal to the State Government.

The State Government thereafter, sent the proposal to the

Ministry of Steel and Mines, New Delhi since the mineral involved

in the mining lease area is a scheduled mineral and therefore,

Government of India issued an interim order dated 13.6.1991

granting 200 days time to dispose of the application. The learned

counsel for the respondent further submitted that the application

of the petitioner for renewal of the mining lease for a further

period was rejected by an order dated 20.7.1993 by the

competent authority since the mineral in the mining lease area in

question was scheduled minerals namely mineral soapstone and

mineral asbestos.

31. The learned counsel for the respondent further submitted that

the petitioner has concealed the fact of filing CW. No.6113/1992

before this Hon'ble Court in which the court vide order dated

17.11.1992 disposed the writ petition with the directions to the

State Government to decide the application of the petitioner within

a period of 3 months on merits. Thus, the reasoned and speaking

order dated 20.7.1993 was passed by the competent authority in

accordance with law.

(10 of 15) [CW-3183/2017]

32. The learned counsel for the respondent also submitted that

the period of first renewal of the mining lease lapsed in the year

2010 and the petitioner has not submitted application for second

renewal of the mining lease and also, at present, case of the

mining lease in question is covered by the provisions of the

Mineral (Other than Atomic and Hydro Carbons Energy Minerals)

Concession Rules, 2016, i.e. provisions relating to grant and

regulation of mineral concessions under the Mines and Minerals

(Development and Regulation) Act, 1957. The learned counsel for

the respondent further submitted that under the Rules of 2016,

mining lease for mineral soapstone along with mineral Asbestos

cannot be renewed since the Central Government has imposed

ban on grant and renewal of such mining leases for mineral

Asbestos. The learned counsel for respondent also submitted that

further, since there is no provision for the surrender of minerals in

the Rules of 2016, therefore, the renewal of mining lease for

mineral Soapstone alone is not possible, hence the first renewal

application was rightly rejected.

33. The learned counsel for the respondent further submitted that

the mining lease in question contains not only mineral Soapstone,

but it also contains mineral Asbestos and in view of the provisions

of the Rules of 2016, there is complete ban on grant of mining

lease or renewal of mining lease for mineral Asbestos. The ban

has been imposed by the Government of India and hence,

petitioner cannot claim second renewal of mining lease in question

as a matter of right.

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34. The learned counsel for the respondent also submitted that as

per record of the office of the Mining Engineer, Dungarpur, no

such cheque amounting to Rs.2,67,840/- has been deposited by

the petitioner rather the cheque was received from one Gauri

Shankar Sharma who in turn was asked to present registered

Power of Attorney but no such response was received from that

person.

35. The learned counsel for the respondent further submitted that

the competent authority has again rejected the renewal of the

mining lease of the petitioner vide order dated 12.05.2023, which

was passed by the respondent in pursuance of the order dated

17.03.2023 passed by this court in this writ petition.

36. The learned counsel for the respondent also submitted that

apart, from the fact that the mining lease was in operation from

02.05.1970 to 01.05.1990 for a period of 20 years, the period of

first renewal, i.e; 02.05.1990 came to an end on 01.05.2010 and

it is an admitted position of the case that no application for second

renewal was filed by the petitioner. The learned counsel for the

respondent further submitted that the pretext taken by the

petitioner that since litigation was going-on, thus, there was no

need to file the second renewal application on the face of it is not

sustainable as there was no stay or impediment in petitioner's

filing application for second renewal and as such, question of

extension of period of mining lease as per Section 8A(6) of the

MMDR Act, 2015 does not arise.

37. The learned counsel for the respondent further submitted that

the Government of India Vide notification dated 10.2.2015

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declared mineral Soapstone as minor mineral and mining lease in

question also is having mineral Asbestos which is still a major

mineral and hence, there is no provision of surrender of minerals

in the prevalent rules and therefore, renewal of mining lease for

mineral Soapstone alone cannot be granted.

38. Heard the learned counsels for the parties as well as perused

the material available on the record.

39. This court finds that the order dated 23.08.2013 and

28.06.1996 were passed by the Director, Department of Mines

and Geology, Udaipur, Respondent No. 1, through which the

respondent department accepted the surrender of mining lease for

particular mineral and granted permission to excavate the other

mineral while invoking the provision of law available under the

Rules of 1960. The said provision is reproduced hereunder:

"29. Restriction on determination of lease:- (1) The lessee shall not determine the lease except after notice in writing of not less than twelve calendar months to the State Government or to such officer, or authority as the State Government may specify in this behalf:

Provided that where a lessee holding a mining lease for a group of minerals applies for the surrender of any mineral from the lease on the ground that deposits of that mineral have since exhausted or depleted to such an extent that it is no longer economical to work the mineral, the State Government may permit the lessee to surrender that mineral, subject to the following conditions, namely:-

(a) the lessee applies for such surrender of mineral at least six months before the intended date of surrender; and

(b) the lessee gives an undertaking that he will not cause any hindrance in the working of the mineral so surrendered

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by any other person who is subsequently granted a mining lease in respect of that mineral:

Provided further that where a lessee applies for the surrender of the whole or a part of lease-hold area on the ground that such area is barren or the deposits of minerals have since exhausted or depleted to such an extent that it is no longer economical to work such area, the State Government shall permit the lessee, from the date of receipt of the application, to surrender that area if the following conditions are satisfied, namely:-

(a) the lease-hold area to be surrendered has been properly surveyed and is contiguous,

(b) the lessee has paid all the dues payable to the Government under the lease up to the date of application, and

(c) the lessee has obtained a certificate under rule 29A.

Provided also that surrender of the lease area by the lessee shall be permitted only thrice during the period of the lease on fulfilling the conditions -

(i) that at least a period of five years has elapsed since the last surrender; and

(ii) that the provisions of the mining plan including the environment management plan thereof have been complied with. (2) Every application for the surrender of a part of lease-hold area in accordance with the provisions of sub- rule (1), shall be accompanied by a deposit of two hundred rupees for meeting the expenditure for the purpose of survey and demarcation of the area to be surrendered:

Provided that the lessee shall deposit such further amount, not exceeding two hundred rupees, as may be demanded by the State Government for meeting any additional expenditure for the said purpose within one month from the date of demand of such deposit: Provided further that where the whole or any part of the amount deposited has

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not been expended, it shall be refunded to the lessee within two months from date of the completion of the work of survey and demarcation of the area to be surrendered.

(3) Upon the issuance of the order by the Regional Controller of Mines or the officer authorized by the State Government in this behalf, as the case may be, under sub- rule (6) of rule 23F of Mineral Conservation and Development Rules, 1988, for forfeiting the sum assured, on non-performance of the measures contained in the approved mine closure plan referred to in sub-rule (1) of rule 23A of Mineral Conservation and Development Rules, 1988 by the lessee, it shall be the responsibility of State Government to realize any letter of credit or bond or any other surety, guarantee provided or obtained as financial assurance for the purpose of performance of protective, reclamation and rehabilitation measures as contained in the approved mine closure plan and shall carry out such measures either by itself, or appoint an agent to do so."

40. This Court finds that the mining lease was in operation for a

period of 20 years, i.e; from 02.05.1970 to 01.05.1990 and the

period of first renewal came to an end on 01.05.2010. The

petitioner did not apply for second renewal by contending that due

to the pending litigation the second application for renewal was

not required but the same is not sustainable as it does not absolve

the petitioner of their obligation to comply with the regulatory

requirements to apply for the renewal every time the mining lease

expires.

41. This court also observes that the mining lease area

encapsulates both mineral Soapstone and Asbestos and it is

evident from the record that the mineral asbestos is scheduled

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mineral and hence the renewal of mining lease was rejected vide

order dated 20.07.1993.

42. This court finds that on 17.03.2023 this court had passed an

order for passing a speaking order in regard to the renewal of

mining lease for the mineral Soapstone while keeping into

consideration the order dated 10.12.2015 passed by this court

and also keeping into consideration Annexure 5. Thereafter, the

respondent authorities after affording the petitioner a reasonable

opportunity of hearing passed the order dated 13.12.2016

rejecting the application for renewal of the mining lease in

question for mineral Soapstone. As far as consideration of

Annexure 5 is concerned as directed by this Court, the respondent

have passed order dated 12.05.2023 on the ground that earlier

the surrender of the mining lease was permissible under the

provisions, i.e; the Rules of 1960 which stood amended and

presently the Rules of 2016 are in vogue in which there is no

provision for surrender of mining lease. Thus, in view of the fact

that in light of the earlier provisions in the Rules of 1960, the

permission to surrender the mining lease could be given, however,

the Rules of 2016 do not have a similar provision and in the

absence of the rules, the petitioner cannot be extended the similar

treatment as extended by the respondent by way of Annex.5.

43. The writ petition being devoid of merit is hereby dismissed

and all pending applications are also dismissed.

(DR. NUPUR BHATI),J

-skm/-

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