Bombay High Court
Ashapura Minechem Ltd vs Indian Bureau Of Mines Thr Minstry And … on 6 June, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-AS:22567-DB
WP-4160-2024.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4160 OF 2024
Ashapura Minechem Ltd. )
287, D.N. Road, Jeevan Udyog Building )
Fort, Mumbai - 400 001 ) ...Petitioner
Versus
1. Indian Bureau of Mines through )
Ministry of Mines. )
Goa Regional Office, )
Central PWD Quarters, IBM Colony, )
New National Highway, Fatorda PO, )
Opp Old RTO Office, Borda, )
Margao, Goa 403602.
2. Directorate of Geology and Mining )
Through Government of Maharashtra)
Khanji Bhavan, 27, Shivaji Nagar, )
Cement Road, Nagpur- 440010 )
3. Ministry of Ports and Mining )
Through Government of Maharashtra)
Mantralaya, Mumbai 400032 )
4. Industries, Energy & Labour )
Department, )
through the Government of )
Maharashtra )
Hutatama Rajguru Chowk, )
Madam Kama Marg, Mantralaya )
Mumbai 400032 ) ...Respondents
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Mr. Harsh Meghani a/w. Mr. Ashish Parwani a/w. Mr. Dikshet Mehra and Mr.
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Mithilesh Challa i/by Rajani Associates for the Petitioner.
Ms. Anjali N. Helekar a/w. Ms. Anu C. Kaladharan for Respondent Nos.1 to 5.
Ms. S.D. Vyas, Addl. G.P. a/w Ms. T.J. Karpe, AGP for Respondent-State.
-------------------
CORAM : G. S. KULKARNI &
ADVAIT M. SETHNA, JJ.
RESERVED ON : 5 MARCH 2025
PRONOUNCED ON : 6 JUNE 2025
JUDGMENT [PER: ADVAIT M. SETHNA, J.]
Any State Largess is rooted in the foundation of "trusteeship, which is premised
on need and not on the individual greed.*
1. This is a Writ Petition filed under Article 226 of the Constitution
of India praying for the following reliefs which reads thus.
"(a) That this Hon'ble Court be pleased to declare that Section 4-A(4) of
the Mines & Minerals (Development and Regulation) Act, 1957 as amended
with effect from 28.3.2021 does not apply to leases executed prior thereto and
that such lease shall be governed by the provisions of Section 4-A(4) of the
Mines & Minerals (Development and Regulation) Act, 1957 as they stood on
the date of execution of such leases;
(b) To declare that the retrospective application of the provision under
Sec. 4-A as amended by the said Amendment of 2021 is violative of the
fundamental rights of the Petitioner under Articles 14, 19(1) (g) and 21 as
guaranteed under Part III of the Indian Constitution.
* The quoted, italicized portion are the "telling words" of the Father of the Nation - Mahatma Gandhi.
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(c) That in the alternative to prayer (a) above, this Hon'ble Court be
pleased to hold that in computing the period of two years or a further period
of one year, as the case may be under the amended section 4-A, the time taken
by Government authorities and/or agencies and/or bodies to pass the revival
order dated 24th March 2023 and the subsequent extension order dated 9 th
February 2024 (i.e. 32 months in aggregate out of 36 months) be excluded;
(d) That this Hon'ble Court be pleased to issue a Writ of Certiorari, or a
Writ in the nature of Certiorari, or any other appropriate writ, order or
direction, calling for the records and proceedings leading to the passing of the
Order dated 24th March, 2023 (Exhibit V hereto) and the Order dated 9th
February, 2024 (Exhibit AA hereto) and after going into the legality, validity
and propriety thereof, to quash and set aside the same to the extent they seek
to arbitrarily impose the condition of commencing production and dispatch on
or before 28th March, 2024;
(e) That this Hon'ble Court be pleased to issue a Writ of Prohibition, or
a Writ in the nature of Prohibition, or any other appropriate writ, order or
direction, leading to the passing of the Order dated 24 th March, 2023 (Exhibit
V hereto) and the Order dated 9 th February, 2023 (Exhibit AA hereto) and
after going into the legality, validity and propriety thereof, to quash and set
aside the same to the extent they seek to arbitrarily impose the condition of
commencing production and dispatch on or before 28 th March, 2024.
(f) For a writ of certiorari or a writ in the nature of certiorari or any other
appropriate writ, order or direction under Article 226 of the Constitution of
India calling for the records and proceedings lying with the Controller of
Mines & Officer in charge, Indian Bureau of Mines, Goa Regional Office,
Respondent No.1, and after examining the validity, legality and propriety
thereof be pleased to quash and set aside the impugned emails.
(g) For a declaration that the erstwhile Rule 8(4) of the MCR 2016 is
unconstitutional for violation of the Fundamental Rights guaranteed under
articles 14, 19 and 21 of the Constitution of India.
(h) For a writ of certiorari or a writ in the nature of certiorari or any other
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appropriate writ, order or direction under Article 226 of the Constitution of
India to set aside the letter dated 27 th November, 2018 issued by the
Respondent No.5 for being bad in law.
(i) For a writ of mandamus or a writ in the nature of mandamus or any
other appropriate writ, order or direction under Article 226 of the
Constitution of India thereby directing the Respondent No.1 to provide the
Petitioner with a mine code in order for it to proceed with obtaining other
permissions/ approvals in order to commence production and dispatch over
the mining site as provided u/s 4-A of the MMDR Act."
2. In these proceedings, we are called upon to adjudicate upon the
validity and legality of the Petitioner's claim for the grant of a mining lease and
mining code in respect of bauxite mining lease in Village Sakhri, District
Ratnagiri. The petitioner before us is a company whose mining lease statutorily
lapsed. This is on account of non compliance with the statutory provisions under
Mines and Minerals (Development and Regulation) Act, 1957 ('Mines Act'), the
Rules framed thereunder, ('Rules') along with the amendments thereto, read with
the provisions of Environment Protection Act, 1986 and Rules, along with the
Environment Impact Assessment Notification issued by the Ministry of
Environment & Forest and Climate Change dated 27 January 1994, and as
amended by notification dated 14 September 2006. However, it is the case of the
petitioner that the lapsing order of respondent no. 2 dated 16 June 2021 was
revoked by the order dated 24 March 2023 followed by an order dated 9
February 2024 impugned in the petition.
3. In such circumstances the issue that falls for consideration before the court
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is whether it can regularize the claims of the petitioner by an imprimatur of the
court, even if, it would otherwise fall outside the statutory scope, ambit as the
law would mandate, is to be tested in these proceedings.
4. We have heard Mr. Harsh Meghani, learned counsel for the
Petitioner, Ms. Anjali Helekar, learned counsel for Respondent Nos.1 to 5 and
Ms. Shruti D. Vyas, Additional G.P. for the State at length and with their
assistance we have perused the record.
Factual Matrix:
5. The facts necessary for adjudication of this Petition are noted
below.
6. The petitioner had initially made an application for grant of mining
lease on 15 September 2003 for bauxite for an area of 62.77 hectares in Village
Sakhri, Tahsil Nandangd, Dist. Ratnagiri ("Subject Lease"). It was on 3 July 2009
that the Respondent No.5 addressed a letter to Respondent No.4 in regard to
grant of prior approval for the subject lease to the Petitioner for a period of 20
years. The said letter dated 3 July 2009 in the form of prior approval of
respondent no.5 clearly stipulated that before allowing the grant of mining lease
to the petitioner, the State Government ought to ensure compliance of the
amended provisions of the Mines and Minerals Development and Regulation Act,
1957, Mineral Concession Rules, 1960 along with the other applicable Acts and
Rules including the Forest (Conservation) Act, 1980, Environment Impact
Assessment Notification dated 27 January 1994 ("the EIA notification") as issued
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and amended by Ministry of Environment and Forest ("Ministry"). The State
Government was directed to furnish a copy of the order that is passed by it to
respondent no.5.
7. The application was examined by respondent No.5 in the said
communication on the touchstone of Section 5(1) of the Mines Act. Before
allowing the grant of the mining lease, the State Government has to ensure
compliance of the amended provisions of the Mines Act and Rules read with the
EIA notification dated 27 January 1994 as issued and amended by Ministry in
compliance with Section 5 of the Mines Act. A copy of the letter dated 3 July
2009 of respondent no. 5 was marked to the competent authorities under the
State Government, i.e., respondent no. 4.
8. Pursuant thereto, a letter dated 12 August 2009 was addressed by
Respondent No.4 to the Petitioner referring to the application for grant of mining
lease of the Petitioner. Respondent No.4 in the said letter, requested the
Petitioner to submit the necessary documents including Clearance Certificate
from competent authority under the Mines Act, Rules, Forest Conversation Act,
1980, (EP Act and EP Rules and the EIA Notification) along with its subsequent
amendments in 2006 within six months from the receipt of the said
communication by the Petitioner.
9. The Ministry, Government of India issued an Office Memorandum
dated 16 August 2010 imposing a moratorium on projects falling under the EIA
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Notification, 2006. Such moratorium was to apply to category A and B projects
to include the Petitioner's bauxite mine in Sakhri Village, Tahsil. Mandangad,
Ratnagiri for the period 16 August 2010 to 25 July 2017. By letter dated 11
September 2015 issued to the petitioner, by the Maharashtra Coastal Zone
Management Authority ("MCZMA") to the petitioner, it was clarified that such
moratorium shall seize to apply qua the petitioner's mining lease.
10. The Respondent no.5 on 26 December 2011 addressed a letter to
the petitioner with regard to approval of mining plan for the petitioner's subject
mining lease. The said letter made it clear that the mining plan is approved
without prejudice to any other laws as may be applicable. Such approval does not
in any way imply approval of the government in terms of any other provisions of
the Mines Act, 1957 or Mineral Concession Rules, 1960 or any other laws
including Forest (Conservation) Act, 1980, Environment Protection Act, 1986
and Rules made thereunder (Allied Laws and Rules). It also specified that if
anything is found to be concealed as required by the Mines Act, 1957 in the
contents of the mining plan and no rectification is made, such approval is deemed
to be withdrawn with immediate effect. Thus, such mining plan was without
prejudice basis and contingent upon the fulfillment of the conditions stated
therein.
11. On such backdrop Respondent no.5 addressed a communication
dated 26 November 2015 to the petitioner in regard to approval of the modified
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mining plan in respect of the petitioner's mining lease. This was also issued on a
without prejudice basis and with similar terms and conditions as imposed by the
earlier communication dated 26 December 2011, under which the initial mining
plan was issued to the petitioner.
12. The petitioner on 10 December 2015 submitted an application and
pre-feasibility report to the Ministry for issuance of Terms of Reference ("TOR")
which is a document required for obtaining the Environmental Clearance ("EC").
Accordingly, the petitioner received the TOR from the Ministry for a period of
three years, valid until 15 March 2019. Since the TOR was expiring on 14 March
2019 the petitioner by its letter dated 8 February 2019 also submitted its
application for extension of validity of the TOR. In the intervening period the
term of the TOR lapsed on 14 March 2019 after which, the petitioner applied for
a fresh TOR. The petitioner then addressed another letter dated 8 February 2019
to the state authority indicating that it is submitting its application requesting to
extend the validity of the TOR by one year. The state authority received the
petitioner's proposal for grant of TOR on 11 November 2023. Even though such
TOR is for the purposes of obtaining EC, and the petitioner made applications
from time to time the fact remains that the petitioner did not obtain the EC as
mandated.
13. The Ministry of Mines i.e. Respondent No.5 issued an order dated
4 January 2017 called the Mines and Minerals (Development and Regulation)
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Removal of Difficulties Order, 2017, which the petitioner refers to it as a 'Grant
Order'. According to such order, it was clarified that notwithstanding anything
contained in Sub-clause (c) of Sub-section (2) of Section 10A of the Mines
Amendment Act, 2015, (with effect from 12 January 2015) where the condition
for obtaining environmental clearance has not been complied with by the
Applicant on or before 11 January 2017, but all other conditions specified in the
previous approval or letter of intent have been fulfilled, the applications shall be
considered under the amended Section 10A and the mining lease be granted in
accordance with the notifications issued under the Environment Protection Act,
1986. However, with the proviso that no mining activities shall commence unless
and until the Applicant obtains Environmental Clearance ('EC') as laid down
under the Environment Protection Act along with its Rules.
14. Further to the above, the Ministry of Mines Government of India
issued a letter dated 5 January 2017 in the form of a clarification referring to the
notification dated 4 January 2017, inter alia, to the effect that the EC can be
obtained prior to commencement of mining activity. The said letter also
stipulated that in pending cases with the state, considering the urgency directions
were issued to take required steps for grant of leases in such instances, within the
timeline i.e. 11 January 2017.
15. The petitioner made an application to respondent no.2 by a letter
dated 6 January 2017 for execution of mining lease referring to its earlier
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application dated 15 September 2003 as also certain letters/correspondence as set
out in the subject of the application. The petitioner therein inter alia stated that it
has complied with all terms and conditions of the LoI issued by the State
Government dated 12 August 2009 which was issued pursuant to the letter of
approval dated 3 July 2009, granted by respondent no.5.
16. Pursuant to the above, the Respondent No.4 addressed a letter
dated 11 January 2017 to the Petitioner in respect of consideration for grant of
mining lease in favour of the Petitioner. The letter, inter alia, provided that the
Respondent No.2 would ensure compliance by the petitioner before starting of
any mining activities of the amended provisions of the Mines Act and Rules read
with the Forest Conservation Act, 1980, Environment Protection Act and Rules,
before commencing any mining operation or giving work permission. This was
followed by an order issued by the Respondent No.4 of the same day i.e. 11
January 2017 where the Respondent No.4 sanctioned to the Petitioner a
conditional grant of subject mining lease (for bauxite in Village Sakhri, Dist.
Ratnagiri for an area of 62.72 hectares) on certain terms and conditions as
stipulated in the sanctioned order. One of such conditions being that the lessee
shall not be entitled, as a matter of right for renewal of the lease and that the
lessee should before commencing any mining activity, submit a necessary
clearance certificate from the competent authorities under the relevant statues
including the Environment Protection Act, 1986 and Rules and the
Environmental Impact Assessment Notification, 1994 as amended in 2006.
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17. The Petitioner, on 6 April 2017 claims to have executed a mining
lease with Respondent No.2, copy of which is enclosed in the writ petition after
making necessary payments of charges in this regard with the competent
authorities. The mandatory environmental clearance as noted above was,
however, not obtained by the petitioner.
18. The Ministry vide a Notification dated 14 August 2018 directed all
mining lease holders with an area less than 100 Hectares to include the
Petitioner's lease, to approach the State Environmental Appraisal Committee to
obtain Terms of Reference ('TOR') and EC.
19. The Respondent No.5 issued a letter/order dated 27 November
2018 to the effect that after commencement of the Mines Amendment Act, 2015
w.e.f.12 January 2015 and the amendments made under Section 10A (2) (c), no
mining lease could be granted beyond 11 January 2017 for the minerals covered
under Section 10A (2) (c), and mining leases after the said period of 11 January
2017 would be treated as void ab-initio under Section 19 of the Mines
Amendment Act. The said letter/order issued by Respondent No.5 dated 27
November 2018 also made the execution and registration of the mining lease
mandatory (to be construed as grant of mining lease) under Rule 8(4) of the
Minerals (Other than Atomic and Hydro Carbons Energy Minerals) Concession
Rules, 2016 ('Mineral Concession Rules, 2016')
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20. The Mineral Concession Rules had been notified on 4 March 2016.
The Petitioner, who had not obtained the required EC, commenced its baseline
and data collection activities as stated in the work order dated 1 February 2019
executed between the Petitioner and the vendor, one Shrusti Seva Private
Limited. The Petitioner accordingly applied for fresh TOR before the State Level
Environmental Impact Assessment Authority, which was granted on 20 May
2019 for a period of three years in accordance with the Office Memorandum
issued by the Ministry on 29 August 2017.
21. It was on 28 March 2021 that the Mines Act was amended
incorporating Section 4A (4) substituting the expression mining activity to
production and dispatch with effect from 28 March 2021. It provided that the
holder of a mining lease, who fails to undertake such production or dispatch for a
period of two years or has discontinued the same for a period of two years, the
lease shall lapse on expiry of said two years' period from the date of execution of
lease or discontinuance of production and dispatch.
22. Pursuant to the above, on 16 June 2021 the Respondent No.2 i.e.
Directorate of Geology and Mining, State of Maharashtra issued an order
declaring the Petitioner's lease executed on 6 April 2017 to have lapsed as it had
not commenced mining operation as stipulated under the amended Section 4A(4)
of Mines Act as noted above, read with Rule 20 of the Minerals Concession,
Rules, 2016. Thus, the mining lease of the Petitioner was declared as lapsed with
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effect from 16 June 2021 by the said order of respondent no. 2.
23. The Petitioner being aggrieved by the lapsing order dated 16 June
2021 addressed a letter to the Respondent No.2 mainly for revocation of such
order and for the grant of hearing to the Petitioner. Accordingly, a hearing was
scheduled on 21 December 2022.
24. The Respondent No.3 through the Hon'ble Minister passed the
impugned order dated 24 March 2023. Accordingly, order dated 16 June 2021 of
lapse of petitioner's lease issued by Respondent No.2 was set aside and the
Petitioner was allowed to commence its production and dispatch on or before 28
March 2023, noting that the Petitioner could not commence its mining operation
as it did not possess the EC. The Petitioner thereafter applied for a mining code to
the Respondent No.1. However, the Petitioner's request for the grant of mining
code was refused by Respondent No.5 vide email dated 17 October 2023. This
was mainly on the ground that the lease deed executed on 6 April 2017 i.e. after a
period of two months from the statutory deadline of 11 January 2017 under the
amended Section 10A(2)(c) of the Mines Act, would deemed to be void ab-initio,
under Section 19 of the Mines Act. The State Level Environmental Impact
Assessment Authority received petitioner's proposal for grant of TOR on 11
November 2023, until such date the petitioner had no EC.
25. Further to the above, the Respondent No. 3 by the second another
impugned order dated 9 February 2024, once again extended the time for the
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Petitioner to commence production and dispatch for another one year upto 28
March 2024 subject to the condition that no further extensions shall be granted.
The earlier extension was by the Hon'ble Minister's impugned order dated 24
March 2023, upto 28 March 2023.
26. It is in the above backdrop that the Petitioner has approached this
court under Article 226 of the Constitution of India.
Submissions
27. The petitioner through Mr. Meghani would first submit that the
respondents in the present case have acted in a manner which is highhanded,
arbitrary, in breach of principles of natural justice by depriving the petitioner of
its fundamental as well as constitutional rights.
28. Mr. Meghani would submit that as the amendment to Section
4A(4) of the Mines Act is prospective, respondent no.3 ought not to have
imposed and/or applied the time period of two years and consequently
Respondent no.4 ought not to have restricted the extension for a further period of
one year only. The time period of two years or a further period of one year to
commence production and dispatch of minerals would apply only to lease deeds
executed by the State Government on or after 28 March 2021 i.e. from the date
of the amendments to the Mines Act and not prior thereto.
29. The petitioner had acquired vested rights to mine bauxite in terms
of the lease. The petitioner had all times with due diligence acted and taken all
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steps to undertake the mining operations at the earliest in terms of the provisions
of Section 4A(4) as prevalent on the date of execution of the lease deed i.e. on 6
April 2017. By subsequent amendment no fetter could have been imposed on
such a right and hence Section 4A(4) as amended on 28 March 2021 cannot be
given retrospective effect.
30. According to the petitioner, in the alternative, in computing the
period of two years and further extension of one year, the period from 16 June
2021 to 3 April 2023 (time consumed in challenging the lapse order) and
similarly the period from 3 April 2023 till 9 February 2024 (time taken to get an
extension order) must be excluded, to mean that out of total of 36 months w.e.f.
28 March 2021 an aggregate period of about 32 months cannot be considered in
reckoning the period as stipulated under Section 4A.
31. It is the petitioner's case that having already applied for EC and
TOR in 2015 and 2016 respectively, it was vigilant and compliant enough under
the erstwhile Section 4A of the Mines Act to start mining operations. The
petitioner rights in executing the mining lease were protected in light of such
compliance under the erstwhile Section 4A of the Mines Act. The petitioner
would rely upon certain authorities to buttress his proposition to the effect that
every statute is prima facie prospective, unless it is by necessary implication made
to have retrospective effect. The substitution of the words 'mining operation' by
the words 'production and dispatch' under Section 4A(4) by amending Act of
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2021 has to only pertain to fresh mining leases executed after 28 March 2021 i.e.
the date of amendments coming into force and not to the mining lease which
have already existed on the said date. This is to show that the amendment to the
said provision is purely prospective in nature.
32. The petitioner would submit that on account of the retrospective
effect of amended Section 4A, the petitioner's fundamental rights guaranteed
under part -III of the Constitution, i.e. Article 14, 19 and 21 have been abridged.
Section 10A(2)(c) of the Mines Act, 1957 according to the petitioner contain the
term 'granted'. There was neither a mention of the word 'registered' or 'executed'
and thus the term 'granted' as appearing in the provision should be read as such.
33. The petitioner relying on the letter/order issued by the respondent
no.5 dated 11 January 2017 would contend that the intention of the respondent
no.5 was only for compliances with LOI before 11 January 2017 and upon such
completion a grant order is to issue in respect of the mining lease and not for
registration or execution of the mining lease. The petitioner complied with the
statutory requirement by executing the lease deed on 6 April 2017 i.e. within the
framework of the letter/order dated 11 January 2017. The petitioner would
submit that the letter of the respondent no.5 dated 27 November 2018 which
provided a clarification on Section 10A(2)(c) along with the letter dated 11
January 2017 is misconstrued by the respondents. The intention of the legislature
was to ensure compliance of the LOI conditions on or before 11 January 2017.
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34. The petitioner would next submit that Rule 8(4) of the Mineral
Concession Rules, 2016 is inconsistent with Section 10A(2)(c) of the amended
Mines Act. The said rule adds the words 'execution, registration' which are not
found in the parent statutory provisions. Hence, Rule 8(4) is ultravirus the
provisions of Section 10A(2)(c) of the Mines Act. To this, reference is made to
the settled law that statute will prevail over subordinate legislation when the two
are not in conflict. In this context the petitioner would submit that from a perusal
of the letter dated 27 November 2018 it would become evident that it is
ultravires the statute insofar as it states that the execution and registration of
mining lease are mandatory for it to be construed as grant under Rule 8(4) of the
Mineral Concession Rules. Such Rule violates the petitioner's fundamental right
under Article 14 as also that under Article 19(1)(g) and Article 21 of the
Constitution of India . Since the said Rule abridges the fundamental right of the
petitioner it is contrary to Article 13 of the Constitution of India.
35. The petitioner would submit that the letter dated 3 July 2009 in
regard to prior approval of the mining lease by the respondent no.5 in favour of
the petitioner vested right in the petitioner which was expressly saved by Section
10A(2)(c) of the Mines Act, 1957. The respondent no.1 gravely erred in failing to
take such settled legal position into account.
36. The respondent through Ms. Helekar and Ms. Vyas would strongly
oppose the petition. Ms. Helekar would refer to the reply dated 2 April 2024 on
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behalf of respondent nos.1 and 5 filed by Shri. Naresh Kumar Katariya, Deputy
Controller of Mines and Officer-in-Charge, Indian Bureau of Mines, Goa. At the
outset Ms. Helekar would submit that the reliefs sought by the petitioner runs
contrary to the statutory scheme, mandate and provisions of the Mines Act, 1957
and Rules thereunder. Granting of such reliefs would have wide ranging
implications on the auction regime as introduced by the Mines Amendment Act,
2015 by permitting backdoor entry for grant of mining lease which will run
parallel to the auction regime stipulated under the Mines Act. This is not a legally
acceptable position.
37. According to respondent nos.1 and 5, by way of the 2015
amendment to the Mines Act a two year mandatory timeline has been prescribed
for execution of mining leases, under Sections 10A(2)(c) of the Mines Act, 1957.
Such mandatory period of two years had already lapsed on 11 January 2017 i.e.
the cut-off date as provided under the said provision. The petitioner has failed to
get its lease executed in accordance with such mandatory provision by virtue of
which it stands lapsed. Further, in the year 2021, by an amendment brought in
the Mines Act, more particularly in Section 10A(2)(d), such area has to be put up
for auction. Thus, the petitioner is straight away not eligible for any relief by
virtue of Section 10A(2)(d) of the Mines Act, 1957 which come into force and
effect from 28 March 2021.
38. The respondent would next submit that the petitioner is not
entitled for any relief under the clear provisions of Rule 8 which were very much
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prevented when the petitioner's mining lease was executed on 17 April 2021.
The petitioner cannot take any advantage of its omission which was much
subsequently from 2 November 2021. In any event, when such Rule existed in
the statute, it is in consonance and conformity that the provisions of the parent
statutes i.e. Section 10A(2)(c) of the Mines Act which is not challenged by the
petitioner.
39. The respondent would submit that the petitioner has deliberately
overlooked and not referred to the mandatory provisions of Section 10A(2)(c) of
the Mines Act as it may not suit the petitioner's interest, however, if such
provision is read as a whole, as is, it would be clear that the legislative mandate is
for the grant of mining lease within two years from the date of the
commencement of the Mines Amendment Act, 2015 i.e. on or before 11 January
2017 and nothing beyond that. Therefore, the phrase ' the mining lease shall be
granted' has to be read with 'within a period of two years' along with the phrase
'subject to fulfillment of the conditions of the previous approval or of the letter of
intent' in harmony or in consonance as the law would mandate. The legislature
has not just intended for completion of conditions of previous approval letter or
letter of intent but the process of grant of mining lease itself has to culminate into
a mining lease deed within the stipulated period of two years commencing from
12 January 2015 i.e. the date of commencement of the Mines Amendment Act,
2015. It is for this reason that the phrase 'mining lease shall be granted' which
ought to be read as to be executed was consciously used by the legislature,
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prescribing a two year period in this regard.
40. According to the respondent by prescribing the cut-off date of 11
January 2017 in Section 10A(2)(c) of the Mines Act has a purpose. This is to
ensure that the two years eligibility period is limited and does not continue till
perpetuate as that would tantamount to granting rights to the applicant to squat
over the area without commencing mining operations, contrary to public interest.
Thus, by prescribing the cut-off date of 11 January 2017, if the application has
not culminated into the execution of a mining lease, the applicant ought to be
rendered ineligible. Diluting or extending the cut-off date will tantamount to
grant of mining lease other than through auction which would ex facie violate the
statutory mandate under Section 10A(2)(d) of the Mines Act, as it is after expiry
of such two year period that the areas are to be put up for auction under the said
provision.
41. The respondent would then place reliance on Rule 8 of the Mineral
Concession Rules which are in clear conformity with the provisions of Section
10A(2)(c) of the Mines Act. The said Rule was very much in existence when the
mining lease of the petitioner was executed on 6 April 2017. It clearly stipulates
that the failure to execute such mining lease on or before 11 January 2017 would
lead to the forfeiture of any right in this regard. As such Rule is in conformity
with the statutory provision which in no manner has assailed or challenged by the
petitioner, the contention of the petitioner that such Rule violates the
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fundamental right of the petitioner is completely devoid of merit and cannot be
accepted.
42. The respondent in the context of the cut-off date of two years
stipulated under Section 10A(2)(c) which makes a mining lease executed after 11
January 2017 void and in-operated, would be in consonance with the well settled
legal principle that when a provision under the statute prescribes a thing to be
done in a particular manner then it is to be done only in that particular manner
and no other. Thus, the statutory time limit of two years, if not complied would
run contrary to Section 19 of the Mines Act and has to be followed in letter and
spirit.
43. The respondents would submit that in the present case on the cut-
off date of 11 January 2017 the petitioner only had a prior approval of
respondent no.5 but that is of no consequence. As the petitioner would also not
dispute, such conditions in the prior approval were not complied. Thus, merely
having such prior approval under Section 5(1) of the Mines Act does not aid any
right whatsoever. It is so because the prior approval of respondent no.5 under
Section 5(1) is hedged with fulfillment of other statutory conditions like
obtaining EC as mentioned in such prior approval granted by the respondent
no.5 as on 3 July 2009. In other words, the period of two years under Section
10A(2)(c) is sacrosanct and cannot be altered. For such reason, the mining lease
of the petitioner is rendered invalid and lapsed suo motu after the statutory cut-
off date of 11 January 2017.
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44. The respondents would submit that the pretext of delay on the part
of the respondents taken as a major ground by the petitioner to save its lease from
lapsing is no ground whatsoever either in fact or in law to claim inapplicability of
the provisions of a statute and thereby to seek for a declaration to exclude such
period of purported delay from the period of two years as contemplated under
Section 4A(4) of the Mines Act.
45. The respondents would contend that the petitioner has unduly
stressed on the provision of Section 4A(4) of the Mines Act as amended w.e.f. 28
March 2021. In the event the petitioner's lease by invalidity automatically lapses
for non-compliance of Section 10A(2)(c) of the Mines Act after 11 January 2017
there is no requirement to go any further. As such lease would run contrary to the
provisions of Section 19 after the cut-off date of 11 January 2017 it would be
rendered as void under such provision. In any event and without prejudice the
petitioner has also not complied with the provisions of Section 4A(4) as would
applicable prior to its substitution. The petitioner is thus in no manner entitled
for any extension after 11 January 2017. In fact, when the regime for grant of
mining lease has changed from first cum first serve basis to that of auction, the
Court would fail in its duty to afford public trust by directing grant of mining
lease in favour of the petitioner after the cut-off date of 11 January 2017. Thus, in
such circumstances the petitioner cannot demand the issuance of writ of
mandamus from the Court for the grant of mining lease which would be in
complete contravention of the statutory provision.
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46. The respondents would submit that there is no vested right of the
petitioner for mining much less for mining in any particular area. Though the
petitioner is ineligible for any consideration under Section 10A(2)(c) of the
Mines Act, there is no embargo on the petitioner to participate in the auction
process for the subject area as and when the same is available for auction in
accordance with the current regime of grant of mineral concessions under the
Mines Act. For such reason, there is no prejudice to the petitioner.
47. The respondents would urge that the Mines Act is a part of the
ninth schedule to the Constitution of India as such Article 31-B is applicable.
Consequently as clearly provided under Article 31-B the contention of
infringement of fundamental right under Article 14 and/or 19 is not available to
the petitioner. The respondents in support of such proposition has placed gainful
reliance on the decision in Larsen and Tubro Vs. Union of India & Ors.; Savita
Rawat Vs. State of MP & Ors.
48. Ms. Vyas, Additional G.P. appearing of the State of Maharashtra
has also opposed the petition. She would rely on the reply affidavit dated 4 March
2025 of Ms. Bhagyashree Nandkumar Joshi, District Mining Officer, Ratnagiri.
She would refer to Rule 20 of the Mineral Concession Rules, 2016 to submit that
the order dated 16 June 2021, passed by respondent no.2 declaring the mining
lease of the petitioner to have lapsed is within the four corners of law. The
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provisions under Rule 20 of the Mineral Concession Rules, 2016 provides for
situations when a mining lease shall lapse. In the given case as the petitioner failed
to comply with the terms and conditions provided under the said Rule 20, the
fallout would be the lapse of such lease. It is pertinent to note that even under the
provisions of the said Rule prior to its substitution i.e. before 2 November 2021,
as the petitioner-lessee failed to make the application within the stipulated period
of two years, the lease has lapsed on expiry of such two year period. For such
reason and taking into account the lapse of such lease, the petitioner cannot get
any relief and the petition deserves to fail on such count.
49. The petitioner through Mr. Meghani in rejoinder would reiterate
the stand of the petitioner as summarized above. Mr. Meghani would
categorically deny the case of the respondents in their reply. The petitioner would
submit that it has fulfilled all required conditions as stipulated in the prior
approval dated 3 July 2009 issued by the Central Government except the
procurement of EC certificate, which according to the petitioner was exempted by
the order dated 4 January 2017 passed by respondent no.5. The petitioner is
therefore being illegally deprived of the grant of the mining code and the mining
lease.
50. In rejoinder, the petitioner would submit that there seems to be a
dispute between the centre and State of Maharashtra, the ill effects of which are
being suffered by the petitioner with great prejudice being caused to it. According
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to the petitioner, a conjoint reading of Section 10A(2)(c), the order dated 4
January 2017, the letter dated 11 January 2017 and finally the lease as executed
makes it clear that the petitioner was in total compliance with all applicable laws
and therefore saw no reason to approach the Court at that time. It is also
submitted that the respondents have not dealt with the petitioner's contention of
issuing the mining code and has maintained silence in this regard. For all such
reasons, the petitioner would pray that the petition is meritorious and it be
allowed.
Analysis:
51. To begin with we would first refer to the prior approval in respect
of the subject mining lease granted in favour of the petitioner by respondent no.5,
dated 3 July 2009, which is extracted below:-
"No.4/73/2004-MIV New Delhi, the 3/7/09
To
The Secretary to the Govt. of Maharashtra,
Industries, Energy and Labour Department,
Mantralaya, Mumbai-400032
Subject: Grant of mining lease for Bauxite over an area of 62.77 hects. In
village Sakhari, Tah-Mandangad, District Ratnagiri in favour of M/s. Ashapura
Minechem Ltd. for a period of 20 years.
Sir,
I am directed to refer to Government letter of even No.dated
23/08/2004 and to say that the Government of India as per their letter
No.4/73/2004-MIV dated 03/07/2009 has conveyed the approval of Central
Government under section 5(1) of the Mines and Mineral (Development and
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Regulation) Act 1957 to grant mining lease for Bauxite over an area of 62.77
hect's in Village- Sakhari, Tahsil-Mandangad, Dist. Ratnagiri to M/s Ashapura
Minechem Ltd.,Mumbai for a period of twenty years.
A copy of Government of India's letter dated 03/07/2009 for grant of
mining lease is enclosed herewith.
The proposed area statement for grant of mining lease (62.77 ha)is enclosed.
You are requested to submit the necessary clearance certificate from the
competent authority wherever necessary under the relevant Acts/Rules,
including the Forest Conservation Act,1980, Environment Protection
Act,1986, the Mineral Conservation and Development Rules
1988,Environmental Impact Assessment Notification 1994 and its subsequent
amendments within six months from the receipt of this letter. You are also
requested to submit the approved Mining plan from Indian Bureau of Mines,
Nagpur within six months from the receipt of this letter to process the matter
further.
A copy of map of proposed area is enclosed herewith."
(emphasis supplied)
Such prior approval issued under Section 5 of the Mines Act was followed
by a letter of intent issued by the respondent no.4-State of Maharashtra dated 12
August 2009 asking the petitioner to submit the necessary Clearance Certificate
from the competent authority as mandated, inter alia, under the Environment
Protection Act and Rules within six months and also furnish the approved mining
plan within six months from the receipt of such letter to respondent no.4 for
further processing. The letter/LOI dated 12 August 2009 reads thus:-
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"No.MMN-1004/C.R.654/IND-9,
Industries, Energy & Labour Deptt.,
Mantralaya, Mumbai - 400 032.
Date : 12.08.2009
To
M/s Ashapura Minechem Ltd.,
287,D.N. Road Jivan Udyog Building,
Fort,Mumbai 400 001
Subject- Application for grant of mining lease for Bauxite over an area of
62.77 hect's in Village-Sakhari, Tahsil-Mandangad, Dist. Ratnagiri by
M/s M/s Ashapura Minechem Ltd., Mumbai for a period of twenty years.
Sir,
I am directed to refer to Government letter of even No.dated
23/08/2004 and to say that the Government of India as per their letter
No.4/73/2004-MIV dated 03/07/2009 has conveyed the approval of Central
Government under section 5(1) of the Mines and Mineral (Development and
Regulation) Act 1957 to grant mining lease for Bauxite over an area of 62.77
hect's in Village- Sakhari, Tahsil-Mandangad, Dist. Ratnagiri to M/s Ashapura
Minechem Ltd.,Mumbai for a period of twenty years.
A copy of Government of India's letter dated 03/07/2009 for grant of
mining lease is enclosed herewith.
The proposed area statement for grant of mining lease (62.77 ha)is enclosed.
You are requested to submit the necessary clearance certificate from the
competent authority wherever necessary under the relevant Acts/Rules,
including the Forest Conservation Act,1980, Environment Protection
Act,1986 and Rules the Mineral Conservation and Development Rules
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1988,Environmental Impact Assessment Notification 1994 and its subsequent
amendments within six months from the receipt of this letter. You are also
requested to submit the approved Mining plan from Indian Buroau of Mines,
Nagpur within six months from the receipt of this letter to process the matter
further.
A copy of map of proposed area is enclosed herewith."
(emphasis supplied)
A conjoint reading of the aforesaid two communications would bring to
the fore that the letter of prior approval dated 3 July 2009 was purely conditional
and contingent upon the petitioner complying with the amended provisions of
the Mines Act, Mineral Concession Rules, 1960 and other applicable allied laws
including Environment Protection Act and Rules and the notification dated 27
January 1994 as issued and amended by the Ministry. The subsequent letter of
intent (supra) issued by the State-respondent no.4 also reiterated compliance of
such requirements by the petitioner as set out in the letter of prior approval dated
3 July 2009 and the LOI.
52. At this juncture we may refer to the definition of mineral
concession as defined under Section 3(ae) of the mines Act and Section 5 of the
Mines Act which stipulates that previous approval of the Central Government is
mandatory for the grant of mineral concession, for minerals as specified in part A
of the first schedule to the said Act, which includes the petitioner's mineral i.e.
bauxite. Section 3(ae) and 5 of the Mines Act reads thus:-
"Section 3
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3. Definitions
In this Act, unless the context otherwise requires -
....
.....
......
3 (ae) "mineral concession" means either a reconnaissance permit, prospecting
license, mining lease, composite licence [exploration licence] or a combination of
any of these and the expression "concession" shall be construed accordingly;
Section 5
5. Restrictions on the grant of mineral concession
3(1) A State Government shall not grant a *[mineral concession] to any
person unless such person--
(a) is an Indian national, or a company as defined in clause (20) of section 2
of the Companies Act, 2013 (18 of 2013) ; and
(b) satisfies such conditions as may be prescribed:
PROVIDED that in respect of any mineral specified in Part A and Part B of
the First Schedule, no [mineral concession] shall be granted except with the
previous approval of the Central Government:
.....
.....
.....
Explanation: For the purposes of this sub-section, a person shall be deemed
to be an Indian national,--
(a) in the case of a firm or other association of individuals, only if all the
members of the firm or members of the association are citizens of India; and
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(b) in the case of an individual, only if he is a citizen of India].
(2) No mining lease shall be granted by the State Government unless it is
satisfied that--
(a) there is evidence to show that the existence of mineral contents in the
area for which the application for a mining lease has been made in
accordance with such parameters as may be prescribed for this purpose by
the Central Government;
(b) there is a mining plan duly approved by the Central Government, or by
the State Government, in respect of such category of mines as may be
specified by the Central Government, for the development of mineral
deposits in the area concerned
PROVIDED that a mining lease may be granted upon the filing of a mining
plan in accordance with a system established by the State Government for
preparation, certification, and monitoring of such plan, with the approval of
the Central Government."
The above provision would thus make the approval of the Central
Government mandatory to mean compliance, of such requirements in totality
including all the conditions stipulated therein. Sub-section (2) of Section 5 also
stipulates that no mining lease shall be granted unless the mining plan is duly
approved by the Central Government or State Government. At this juncture, it
may be observed that the petitioner has not complied with the mandatory
conditions as stipulated in the prior approval of the Central Government dated 3
July 2009 followed by the LOI dated 12 August 2009 issued by the respondent
no.4-State. The petitioner does not controvert that it has not obtained the
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mandatory EC as noted in the prior approval letter and the LOI. The petitioner
has given reasons for such non-compliance which we consider hereafter to test the
applicability of the petitioner's contentions.
53. In such context, we may at the outset refer to the mining plan
issued by the respondent no.5 dated 26 August 2011 which clearly provided that
such mining plan is approved without prejudice to any other laws applicable. This
cannot be construed as implied approval of the government in terms of any other
provisions of the Mines Act, Mineral Concession Rules, 1960 or the allied laws
including Environment Protection Act, 1986 and the Rules thereunder. So also,
the provisions of the Mines Act, Rules and Regulations made thereunder require
compliance as stated in the said document, clearly making it conditional for the
purpose of grant of mining lease. This was followed by modified mining plan
dated 26 November 2015, issued by respondent no.5 which made the approval
by the said respondent subject to the conditions set out therein which are similar
to those as set out in the mining plan of 26 December 2011. We may observe that
the petitioner has not fulfilled such conditions as set out in the mining plan of 25
December 2011 and the modified mining plan of 26 November 2015, inter alia,
it has not been able to obtain the mandatory EC as stipulated therein. At this
juncture, it may be noted that Section 5(2) of the Mines Act categorically
provides that no mining lease shall be granted unless the mining plan is approved
by the Central Government or State Government. Such approval would mean
compliance of all conditions in the said plan and not in piece meal as the
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petitioner would want it to be. Such contention stares in the face of Section 5 of
the Mines Act and for the reasons elaborated below, it cannot be accepted.
54. We now advert to the vital statutory provision for the present
proceedings being Section 10A of the Mines Act which was inserted by the 2015
amendment Act w.e.f. 12 January 2015. This provision in our view would have a
significant impact in deciding the lis between the parties. Section 10A of the
Mines Act reads thus:-
"10A. Rights of existing concession holders and applicants
(1) All applications received prior to the date of commencement of the Mines and
Minerals (Development and Regulation) Amendment Act, 2015, shall become
ineligible.
(2) Without prejudice to sub-section (1), the following shall remain eligible on
and from the commencement of the Mines and Minerals (Development and
Regulation) Amendment Act, 2015:-
(a) applications received under Section 11A of this Act;
(b) where before the commencement of the Mines and Minerals
(Development and Regulation) Amendment Act, 2015 a reconnaissance
permit or prospecting licence has been granted in respect of any land for any
mineral, the permit holder or the licensee shall have a right for obtaining a
prospecting licence followed by a mining lease, or a mining lease, as the case
may be, in respect of that mineral in that land, if the State Government is
satisfied that the permit holder or the licensee, as the case may be,-
(i) has undertaken reconnaissance operations or prospecting operations,
as the case may be, to establish the existence of minerals contents in such
land in accordance with such parameters as may be prescribed by the
Central Government;
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(ii) has not committed any breach of the terms and conditions of the
reconnaissance permit or the prospecting licence;
(iii) has not become ineligible under the provisions of this Act; and
(iv) has not failed to apply for grant of prospecting licence or mining
lease, as the case may be, within a period of three months after the expiry
of reconnaissance permit or prospecting licence, as the case may be, or
within such further period not exceeding six months as may be extended
by the State Government:
[PROVIDED that for the cases covered under this clause including the
pending cases, the right to obtain a prospecting licence followed by a
mining lease or a mining lease, as the case may be, shall lapse on the date
of commencement of the Mines and Minerals (Development and
Regulation) Amendment Act, 2021:
PROVIDED FURTHER that the holder of a reconnaissance permit or
prospecting licence whose rights lapsed under the first proviso, shall be
reimbursed the expenditure incurred towards reconnaissance or
prospecting operations in such manner as may be prescribed by the
Central Government.]
(c) where the Central Government has communicated previous approval as
required under sub-section (1) of section 5 for grant of a mining lease, or if a
letter of intent (by whatever name called) has been issued by the State
Government to grant a mining lease, before the commencement of the Mines
and Minerals (Development and Regulation) Amendment Act, 2015, the
mining lease shall be granted subject to fulfillment of the conditions of the
previous approval or of the letter of intent within a period of two years from
the date of commencement of the said Act:
PROVIDED that in respect of any minerals specified in the First Schedule,
no prospecting licence or mining lease shall be granted under clause (b) of
this sub-section except with the previous approval of the Central
Government.
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(d) in case where right to obtain licence or lease has lapsed under clause (b)
and (c), such areas shall be put up for auction as per the provisions of this
Act:
PROVIDED that in respect of the minerals specified in Part B of the First
Schedule where the grade of atomic minerals is equal to or greater than the
threshold value, the minerals concession for such areas shall be granted in
accordance with the rules made under section 11B."
(emphasis supplied)
A perusal of the provisions of Section 10A indicates that it is inserted by
way of amendment to the Mines Act, w.e.f. 12 January 2015. What is important
for the present proceedings is sub-clause (c) of sub-section (2) of the said
provision. A plain reading of sub-section (2)(c) of Section 10A would make it
abundantly clear that the mining lease shall be granted subject to fulfillment of
conditions of previous approval or letter of intent within a period of two years
from the date of amendment i.e. 12 January 2015. This would mean that the
fulfillment of conditions by a lessee in the prior approval dated 3 July 2009 of
respondent no.5 or the LOI of the State Government dated 12 August 2009
ought to be complied with in totality, on or before 11 January 2017. It is thus
clear that the statutory provision itself provides a cut-off date of 11 January 2017
under sub-section (2)(c). The provision as it stands makes such cut-off date non-
negotiable.
55. We may observe that on such cut-off date of 11 January 2017, the
petitioner did not fulfill the conditions as set out in the prior approval of the
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Central Government dated 3 July 2009 issued under Section 5(1) of the Mines
Act. Though the LOI dated 12 August 2009 had also been issued the mandatory
requirement complying with the provisions under the Environment Protection
Act, Rules and the notifications dated 27 January 1994 and 14 September 2006,
which have not been fulfilled by the petitioner on the cut-off date of 11 January
2017, including obtaining the mandatory EC. Thus, the legislative intent for the
purpose of granting mining lease is clear as crystal. This is to mean that the
lessee/applicant is required to fulfill all conditions as envisaged under the Mines
Act and Rules on or before the statutory cut-off date of 11 January 2017. In our
view, non-compliance of mandatory conditions by the petitioner in the form and
manner as contemplated by Section 10A(2)(c) goes to the root of the matter. The
fact remains that such conditions as stipulated in the prior approval of respondent
no.5 issued under Section 5 read with the LOI of the State Government dated 12
August 2009 were not complied with by the petitioner as on 11 January 2017, in
the manner so prescribed. It is petitioner's own admission that the petitioner has
never challenged the validity or vires of Section 10A(2)(c) of the amended Mines
Act. The said provision is applicable to the petitioner in the form and manner it is
so worded and not as the petitioner would want to construe it to be.
56. The petitioner in response to the above would place reliance on an order
dated 4 January 2017 issued by the Ministry of Mines, Government of India
which reads thus:-
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"MINISTRY OF MINES
ORDER
New Delhi, the 4th January, 2017
S.O. 27(E). – Whereas difficulties have arisen in giving effect to the provisions
of clause (c) sub-section (2) of Section 10A of the Mines and Minerals
(Development and Regulation) Amendment Act, 2015 (10 of 2015), in so far
as it relates to fulfilment of conditions laid in the letter of intent (by whatever
name called) issued by the State Governments within a period of two years
from the date of commencement of the said Act.
Now, therefore, in exercise of the powers conferred by the sub-section (1) of
Section 24 of the Mines and Minerals (Development and Regulation)
Amendment Act, 2015 (10 of 2015), the Central Government hereby makes
the following order to remove the difficulties relating to fulfilment of
conditions laid in the letter of intent, namely:-
1. Short title and commencement.- (1) This order may be called the
Mines and Minerals (Development and Regulation) Removal of Difficulties
Order, 2017.
(2) It shall come into force on the date of its publication in the
Official Gazette.
2. Environmental Clearance.- Notwithstanding anything
contained in clause (c) of sub-section (2) of Section 10A of the Mines and
Minerals (Development and Regulation) Amendment Act, 2015 (10 of
2015), it is clarified that where the condition of obtaining environmental
clearance has not been complied with by the applicant on or before 11 th
January, 2017, but all other conditions specified in previous approval or the
letter of intent have been fulfilled, the applications shall be considered under
that section and mining lease shall be granted by the concerned State
Governments in accordance with the notifications issued under the
Environment (Protection) Act 1986) (29 of 1986):
Provided that no mining activity shall commence unless and until the
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Environment (Protection) Act, 1986 and the rules made there under.”
The petitioner would submit that the above order clearly provides that as
long as the applicant/lessee complies with all other conditions as set out in the
previous approval or letter of intent except for the EC, the application for grant of
mining lease shall be considered and granted. For such reason, though the
petitioner has not complied with the condition regarding obtaining the EC as
required under the prior approval and LOI, this order, according to the
petitioner, carves out an exception. This is not correct.
57. On a careful perusal of such order we do not find merit in such
submission. This is so because that the said order of 4 January 2017 merely
provides for obtaining the EC certificate subsequently where it could not be
obtained on or before 11 January 2017. At the same time, the said order clearly
lays down that no mining activity shall commence until the applicant obtains the
EC as laid down under the Environment Protection Act and Rules, retaining such
mandatory requirement to obtain the EC. In the given case, the petitioner has not
only failed to obtain the required EC and failed to comply with such conditions
under the Environment Protection Act on 11 January 2017 i.e. the statutory cut-
off date. But also, even thereafter as on 6 April 2017 when the mining lease was
executed, there was no compliance by the petitioner of the conditions stipulated
in the prior approval issued by respondent no.5 dated 3 July 2009 and/or the
subsequent LOI dated 12 August 2009. The order of 4 January 2017 does not in
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any manner water down the requirement, inter alia, of obtaining EC mandatory
before commencing any mining activity. Accepting the petitioner’s submission, it
would tantamount to complete misreading and negating of the statutory
provisions under the Mines Act including the said order dated 4 January 2017.
58. The petitioner in the pleadings has also relied on a notification of
the Government of India dated 5 January 2017 which though stated to be
enclosed is not annexed to the petition. The relevant clauses/paragraphs of the
notification reads thus:-
“5. Further, in respect of cases pending because of environmental clearance, (EC),
after taking legal opinion with concurrence of MoL&J & MoEF&CC we have
issued notification dated 4.1.2017 (available on the website of Ministry of Mines)
under the powers conferred by sub section 1 of section 24 of MMDR
Amendment Act, 2015 in which the State Governments have been enabled to
grant the lease without necessitating EC at this stage, provided that EC can be
obtained prior to commencement of the mining activity. These leases so executed,
would entail to be treated null and void if the EC is finally rejected.
6. In this way, such pending cases, where mining plan was sanctioned but
cases were pending because of EC, FC and settlement of forest rights, the States
have been facilitated by the Central Government to be able to grant the lease
expeditiously. Now it is up to the States how promptly they grant the lease in
respect of these saved cases.
7. Apart from these, there are certain cases pending for action/ decision with
the State Government mostly with Mining Dept. and some with Revenue Dept.
These cases pending with the Directorate of Mining and Geology or Forest
Department or State Pollution Control Board, and other departments of your
State also need to be expedited before the prescribed time limit.
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8. Considering the urgency of the matter, it is felt that the Mining
Department, along with the other concerned departments/ organizations where
the cases are pending in the State, may be immediately directed to take required
steps for grant of leases in these cases within the timeline, i.e. 11.01.2017. ”
(emphasis supplied)
The above notification issued by the Government of India reiterates that
the authorities are directed to take the necessary steps to grant the leases to strictly
adhere with the timeline, statutory cut of date of 11 January 2017. There is a
noteworthy facet in these proceedings. Just one day after the said notification of 5
January 2017, the petitioner addressed a letter dated 6 January 2017 to
respondent no.2 is in the nature of an application for the grant of mining lease
referring to the earlier application dated 15 September 2003 and certain other
correspondence as set out in the subject caption. The letter/application of the
petitioner dated 6 January 2017 reads thus:-
“Date: 06th January 2017
To,
The Principal Secretary,
Department of Mines and Geology,
Mantralaya, Mumbai – 400 032.
Subject: Execution of Mining Lease.
Ref.: 1) Application for grant of mining lease for Bauxite over an area of
62.77 Ha in Village-Sakhri, Tehsil-Mandangad, Dist. Ratnagiri, for a period
of twenty years (Copy enclosed)
2) Your letter No. MMN-1004/C.R.654/IND-9 dated 12.08.2009 (Copy
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3) Section 10-A (2)(c) of MMDR Act, 1957.
4) Mining Plan Approval Letter by Indian Bureau of Mines dated 26 th
November 2015. (Copy enclosed)
5) Ministry of Mines Order published in The Gazette of India –
Extraordinary Part II Section 3 (ii) by Government of India on 04 th January
2017 (Copy enclosed)
6) Government of India Letter No.7/1/2016-MIN dated 05th January 2017
(Copy enclosed).
Dear Sir,
As you are aware, we have already filed an application dated 15.09.2003 for
grant of mining lease for Bauxite over an area of 62.77 Ha in Village- Sakhri,
Tehsil-Mandangad, Dist. Ratnagiri, for a period of twenty years. We have been
granted a Letter of Intent (LOI) dated 12.08.2009 by your good office apart
from prior approval from Central Government dated 03.07.2009 with regard to
the grant of mining lease.
We produce herewith an extract of Section 10-A (2)(c) of MMDRA Act, 1957:
where the Central Government has communicated previous approval as required
under sub-section (1) of section 5 for grant of a mining lease, or if a letter of
intent (by whatever name called) has been issued by the State Government to
grant a mining lease, before the commencement of the Mines and Minerals
(Development and Regulation) Amendment Act, 2015, the mining lease shall be
granted subject to fulfillment of the conditions of the previous approval or of the
letter of intent within a period of two years from the date of commencement of
the said Act:
As per the said section, it has been made mandatory that mining leases with
regard to mining sites for which LOI has been issued should be granted within a
period of two years of the commencement of the said Act.
Thus, in view of the above referred letters in No. 5 and No. 6 we have complied
with the terms and conditions of LOI. We hereby request you to issue the
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mining lease at the earliest.
Request you to look in to the matter and do the needful at the earliest.”
A perusal of the above brings to fore the fact that the petitioner in making
the above application is fully aware and has the complete knowledge of all
mandatory compliances which are necessary in the grant of mining lease.
Accordingly, the petitioner had to comply with the terms and conditions of the
letter of approval dated 3 July 2009, issued by respondent no.5 followed by the
LOI dated 12 August, 2009, issued by the State, as also compliance of the
provisions under the Environment Protection Act, 1986 and Rules and EIA
notifications dated 27 January 1994 and 14 September 2006. Despite this, the
petitioner in its application incorrectly states that he has complied with the terms
and conditions of the LOI, which clearly has not been done.
59. For the reasons noted above, we are not able to accept that such
conditions have been done away with the government’s order dated 4 January
2017 and/or 5 January 2017 which in fact reiterate the requirements set out in
the prior approval and LOI respectively. The letter of Central Government dated
5 January 2017 in fact directs the concerned departments where cases are pending
in the State to take requisite steps for grant of leases within the statutory timeline
of 11 January 2017. Thus, it is apparent that the application of the petitioner
dated 6 January 2017 is misconstrued and misleading. Not only this, but the
petitioner has also failed to comply with the terms and conditions of the mining
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plan dated 26 December 2011 and the modifying mining plan dated 26
November 2015 which was issued on a without prejudice basis and contingent
upon compliance by the petitioner, with the provisions under the Mines Act and
other allied laws including the Environment Protection Act, 1986 and Rules. All
of this brings to light that the petitioner has not complied with the statutory
mandate under Section 10A(2)(c) for having a valid mining lease in law, on or
before the statutory cut-off date of 11 January 2017, which is sacrosanct and non-
negotiable. The petitioner has also placed heavy reliance on what it calls as the
grant order dated 11 January 2017, issued by respondent no.4-State Government.
By this order, the State Government had sanctioned the grant of mining lease for
a period of 50 years in favour of the petitioner. The following clause from such
document is noted below:-
“T) As per the Notification of Ministry of Mines No. 7/1/2016.M-IV(Part 1)
dtd 4/1/2017, No mining activity shall commence unless and until the
applicant obtains environmental clearance as laid down under the environment
(Protection) Act, 1986 and the rules made there under.
U) These leases so executed, would entail to be treated null and void if the EC is
finally rejected.”
The above document in fact clearly notes two vital aspects. Firstly, it
reiterates that no mining activity shall commence unless and until the applicant
obtains the EC as laid down under the Environment Protection Act and Rules.
Secondly, the leases so executed shall be null and void if the EC is finally rejected.
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As discussed above, the law mandates that the EC has to be obtained before
commencing any mining activity. In any event, no mining activity could
commence unless and until the EC was obtained which is also provided in the
said letter dated 11 January 2017.
60. Accordingly, reliance placed on such letter by the petitioner is an
attempt to stray away from the mandatory provisions of the Mines Act, the
conditions in the prior approval letter and LOI, which is not acceptable. In this
context the Supreme Court in the case of Common Cause Vs. Union of India 1 has
categorically held that there is no doubt that a new mining project after 27
January 1994 would require a prior EC. Similarly in Deepak Kumar & Ors. Vs.
State of Haryana & Ors .2 the Supreme Court has observed that mining operations
going on at certain blocks in Rajasthan without complying with the conditions
imposed for EC and proper sanction be immediately stopped. The Supreme
Court has in the said case deprecated inaction on the part of the officials in
permitting such mining leases to operate. Further, the Supreme Court in a recent
decision in Vanashakti Vs. Union of India3 has made certain poignant
observations as thus:-
“23. Apart from the fact that the very concept of grant of ex-post facto EC is
illegal, it is not possible to understand why the Central Government made
efforts to protect those who committed illegality by not obtaining prior EC in
terms of the EIA notification. As the EIA notification was eleven years old when
1 (2017) 9 SCC 499
2 2014 16 SCC 698
3 2025 SCC OnLine SC 1139
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WP-4160-2024.docxthe 2017 notification was issued, there was no equity in favour of those who
committed such gross illegality of not obtaining prior EC. The persons who
acted without prior EC were not illiterate persons. They were companies, real
estate developers, public sector undertakings, mining industries, etc. They were
the persons who knowingly committed illegality. We, therefore, make it clear
that hereafter, the Central Government shall not come out with a new version
of the 2017 notification which provides for the grant of ex-post facto EC in any
manner.”
What the petitioner in the present facts and circumstances is seeking for is
the grant of ex post facto EC as the same was not obtained by him as on the
statutory cut-off date of 11 January 2017. The petitioner’s reliance on the
letter/order of the Central Government dated 4 January 2017, 5 January 2017
and the grant order of the State Government dated 11 January 2017 is to submit
that it is open to the petitioner to obtain an ex post facto EC. Until it is so
rejected, the petitioner has duly complied with the statutory requirements. Such
submission would be in the teeth of the recent judgment of the Supreme Court in
Vanshakti (supra) wherein whilst making strong observations against the Central
Government in the context of not obtaining prior EC, the Supreme Court has
observed that such persons have committed illegality by not obtaining prior EC in
terms of the Environment Impact Assessment Notification. Therefore, to accept
the contentions of the petitioner in this regard would run contrary not only to the
statutory framework under the Mines Act and Rules but also violate the decisions
of the Supreme Court. Such course can never be accepted being legally forbidden
and impermissible.
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61. We would now advert to the submissions of the petitioner in regard
to Rule 8 of the Mineral Concession Rules, 2016. The said Rule reads thus:-
“8. Rights under the provisions of clause (c) of sub-section (2) of section 10A.-
(1) The applicant in whose favour:
(a) the State Government has issued a letter of intent (by whatever name called)
in writing before January 12, 2015, for grant of a mining lease for minerals not
specified in the First Schedule to the Act; or
(b) the Central Government has communicated the previous approval in
writing before January 12, 2015, under sub-section (1) of section 5, for grant of
a mining lease for minerals specified in Part C of the First Schedule to the Act,shall submit a letter of compliance to the State Government, of the conditions
mentioned in the letter of intent or the conditions mentioned in the previous
approval granted by the Central Government, as the case may be; and the State
Government shall send an acknowledgment of receipt of the letter of
compliance to the applicant in Schedule II within a period of three days of
receipt thereof.
(2) ……………….
(3) ……………….
(4) Where an order for grant of mining lease has been issued under sub-rule
(2), the mining lease shall be executed with the applicant in the format
specified in Schedule VII and registered on or before 11th January, 2017,
failing which the right of such an applicant under clause (c) of sub-section (2)
of section 10A for grant of a mining lease shall be forfeited and in such cases, it
would not be mandatory for the State Government to issue any order in this
regard.
(5) The State Government may, for reasons to be recorded in writing and
communicated to the applicant, reduce the area applied for at the time of grant
of the mining lease.
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(6) The date of the commencement of the period for which a mining lease is
granted shall be the date on which a duly executed mining lease deed is
registered.”
It is true that the said Rule was omitted with effect from 2 November
2021 and the petitioner would contend that this Rule ought not to be referred to.
However, this very same contention has been dealt with by the Delhi High Court
in the decision of Arcelormittal India Private Limited & Anr. Vs. Union of India
& Ors.4 a judgment referred to by Ms. Helekar, where the Delhi High Court had
the occasion to deal with a situation similar to the present proceedings. In this
context the following paragraphs are noteworthy:-
“41. Thus, reading the provision of Section 10A of the MMDR Amendment Act,
2015 and Rule 8 of the Mineral Concession Rules, 2016 makes it crystal clear
that the legislative mandate is for obtaining the prior approvals for grant of
mining lease within a period of two years from the date of commencement of
MMDR Amendment Act, 2015 i.e. on or before 11 th January, 2017 and not
beyond that. By prescribing the cut off date of 11 th January, 2017, the Legislature
has envisaged that if on or before the cut off date the requisite approvals have not
been obtained, the case of the applicant would be rendered ineligible. In such
cases, the said area is to be dealt with in accordance with the provisions of
MMDR Act and Rules framed thereunder, which prescribe that the grant of
mineral concession has to be done through auction.
42. The mere fact that the Mineral Concession Rules, 2016 has been withdrawn,
the same does not mean that the cut off date of 11 th January, 2017 has lost its
relevance. The cut off date of 11th January, 2017 is a statutory provision, as laid
down in MMDR Act, which categorically provides that all the requisite previous
approvals in terms of LOI have to be fulfilled within a period of two years from4 2024 SCC OnLine Del 1401
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43. Therefore, the contention of the petitioner that since Rule 8(4) of the
Mineral Concession Rules, 2016 has been omitted, the bar of 11 th January, 2017
ceases to apply to the petitioner, also cannot be accepted. It is to be considered
that Section 10A(2)(d) of MMDR Act which was inserted w.e.f. 28 th March,
2021 clearly provides that all cases where right to obtain a lease has lapsed under
Section 10A(2)(c) of MMDR Act, shall be put up for auction. It has been
explained on behalf of UOI that it is only after the insertion of Section 10A(2)(d)
of MMDR Act on 28th March, 2021 that Rule 8 was omitted on 02 nd November,
2021, because the date of lapsing of all applications had long gone and a specific
provision for putting the same to auction had also been made. Therefore, the
submission that with the omission of Rule 8, the cut off date itself has gone, is
clearly erroneous and must be rejected.
44. There is another aspect of the matter. Merely on the strength of Section
10A(2)(c) of the MMDR Act, the petitioner cannot claim any absolute right for
grant of mining lease even after 11 th January, 2017, as the same is subject to
certain mandatory conditions. It is only upon fulfilment of the twin conditions,
as envisaged under Section 10A(2)(c) of MMDR Act on or before 11 th January,
2017, that an applicant would be considered eligible for grant of mining lease
under Section 10A(2)(c) of MMDR Act. Thus, on the cut off date of 11 th
January, 2017, the petitioner only had approval under Section 5(1) of the
MMDR Act. Though LOI had been issued in favour of the petitioner vide letter
dated 10th June, 2008, the requirement of the LOI for approval under Section 2
of FC Act, 1980 as well as the EC had not been fulfilled by the petitioner on the
cut off date of 11th January, 2017. Section 10A(2)(c) of the MMDR Amendment
Act, 2015, categorically envisages that mining lease shall be granted subject to
fulfilment of the conditions of the previous order or of the LOI within a period
of two years from the date of the commencement of the Amendment Act i.e. 11 th
January, 2017. Thus, as per the legislative intent, an applicant for grant of
mining lease under the Old Regime was required to fulfil the conditions as
envisaged in the Act and the Rules on or before 11 th January, 2017. As notedShubham Page 47 of 73
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could be obtained subsequently in cases where it could not be obtained.”
We are in complete agreement with the above observations, on the
interpretation of Rule 8 of Mineral Concession Rules, 2016. In our view, Section
10A(2)(c) and Rule 8 need harmoniously read so as to further the aim, object and
purpose of the Mines Act and Rules. Given that the said Rule 8 is in the nature of
a machinery provision, it is intra vires the said section being Section 10A(2)(c)
which is not assailed by the petitioner. Therefore, there is no merit in the
petitioner’s contention that Rule 8 Sub-clause 4 is violates the petitioner’s
fundamental rights it so claims.
62. We may observe that the rationale of such harmonious construction
of the said provisions would be that because the date of lapsing had long gone, a
specific provision for putting such lapsed leases to auction was made, by the
legislature. One would find such provision under Section 10A(2)(d) of the Mines
Act. The said provision which came into force and effect from 28 March 2021 by
virtue of amendments to the Mines Act reads thus:-
“(d) in cases where right to obtain license or lease has lapsed under clauses (b)
and (c), such areas shall be put up for auction as per the provisions of this Act:
PROVIDED that in respect of the minerals specified in Part B of the First
Schedule where the grade of atomic minerals is equal to or greater than the
threshold value, the mineral concession for such areas shall be granted in
accordance with the rules made under section 11B.”
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We also find substance in the contention of Ms. Helekar and the
averments made in the affidavit-in-reply of respondent no.5, according to which,
it is a statutory requirement post the 2015 amendment to the Mines Act to put in
place an auction regime, in larger public interest. This is to ensure that the mines
which are state largesse are not unnecessarily blocked for private/vested interests.
The petitioner has chosen to remain silent on this vital aspect of the matter.
63. The petitioner would however, contend that Rule 8 would infringe
the petitioner’s fundamental rights under Article 14, 19 and 21 of the
Constitution of India. Such submission is legally not tenable. The issue of the
petitioner not having any fundamental right in mining is no longer res integra as
held by the Supreme Court in Monnet Ispat and Energy Ltd. Vs. Union of India 5
wherein the Supreme Court held that no person can claim any right in any land
belonging to the government or in any mines in any land belonging to the
government except as provided under the 1957 Act and the 1960 Rules. No
person has any fundamental right to claim that he should be granted mining lease
or prospecting licence or permitted reconnaissance operation, in any land
belonging to the government. We find force in the submission of the respondent
that as Mines Act is a part of the Ninth Schedule to the Constitution of India, by
virtue of which Article 31-B becomes applicable, rendering the submission of the
petitioner on alleged violation of such rights in the given facts, unteneble.
5 2012 11 SCC 1
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64. We now come to the petitioner’s challenge to a letter dated 27
November 2018 issued by respondent no.5-Ministry of Mines, Government of
India in regard to mineral concessions for major minerals falling under Section
10A(2)(c) of the amended Mines Act, 2015, on the ground that it is bad in law.
The said communication reads thus:-
” F. No. 7/4/2018-M.IV
Government of Mines
Ministry of Mines
Shastri Bhawan, New Delhi
Dated: 27 November, 2018
To,
Principal Secretary/Secretary,
In Charge of Department of Mines & Geology,
All States and UTs (As per list)Subject: Mineral concessions for major minerals falling under Section 10A(2)(c) reg.
Sir,
It has come to the notice of Ministry of Mines that some State Governments
have granted or are in the process of granting mining lease for major minerals
after 11.01.2017 which were saved only for 2 years under Section 10A(2)(c) of
the MMDR Amendment Act, 2015.
2. You would be aware that the MMDR Amendment Act, 2015 came into force
with effect from 12.01.2015. As per Section 10A(2)(c) of the amended Act,
applications where previous approval of the Central Government was conveyed
under Section 5(1) for grant of mining lease or where a Letter of Intent (LoI) was
issued by the State Government for grant of mining lease, were saved from
becoming ineligible, provided the lease was granted (i.e. executed & registered)
subject to fulfillment of conditions of the previous approval of LoI, within aShubham Page 50 of 73
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WP-4160-2024.docxperiod of two years from the date of commencement of the amended Act i.e. up
to 11.01.2017. The date within which such saved cases had to be converted into
a mining lease has already lapsed. Hence, no mining lease can be granted beyond
11.01.2017 on the mineral concessions covered under Section 10A(2)(c) as it
would be treated to be ab-initio void under Section 19 of the Act for being in
contravention of the Act.
3. Moreover, execution and registration of the mining lease are mandatory to
construe it as grant of mining lease as per the provisions of Rule 8(4) of the
Minerals (Other than Atomic and Hydro Carbons Energy Minerals) Concession
Rules, 2016.
4. Therefore, you are requested to send the details of such cases, if any, [covered
under Section 10A(2)(c)] where mining lease was executed and registered after
10.01.2017 by the State Government. As they are ab-initio void under Section
19 of the Act for being in contravention of the Act, you are requested to take
appropriate action and send the compliance in this regard to the Ministry at the
earliest.
Yours faithfully,
(A K Mallik)
Under Secretary to the Govt. of India
Telephone No.011-23384743
E-mail address: [email protected]”
Apropos the above, it may be noted that the Delhi High Court in the
Decision of Arcelormittal India Private Limited & Anr. (supra) had the occasion
to deal with an identical submission. This was in the context of a challenge to
such letter on the ground that it refer to Rule 8(4) of the Mineral Concession
Rules, 2016 (supra). As this Rule was omitted w.e.f. 2 November 2011 the
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petitioner would contend that it cannot be relied upon, as noted by us above. As
correctly observed by the Delhi High Court, the mere fact that the said Rule has
been withdrawn, does not in any way mean that the cut-off date of 11 January
2017 as reflected under Section 10A(2)(c) of the Mines Amendment Act has lost
relevance. Such cut-off date is statutory under the Act, which categorically
provides that all requisite previous approvals in terms of the LOI issued by the
State Government have to be fulfilled within a period of two years from the
commencement of the Mines Amendment Act i.e. from 12 January 2015. The
respondent no.5 in such view of the matter directed its counterparts of the State
Governments to furnish details of leases covered under Section 10A(2)(c) where
they were so executed after 11 January 2017 by the State Governments, failing
which, such leases would be void ab initio under Section 19 of the Mines Act. It is
to make such statutory position clear that the said letter was issued by respondent
no.5. We, therefore, do not find any infirmity much less illegality in the said
communication which is issued in due compliance with the statutory provisions
under the Mines Act. We thus find the submission of the petitioner to set aside
the same, as untenable and legally unsustainable.
65. At this juncture, we would refer to an order dated 16 June 2021,
passed by the respondent no.5. The said order reads thus:-
“Date. 16 June 2021
No. STC/1049/Show cause notice/2017/1469
Registered AdShubham Page 52 of 73
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WP-4160-2024.docxRead : 1. Government of Maharashtra Order No.
MMN-1004/C.R.654/Ind-9, dated 11/01/2017
2. Minearals (Other than Atomic & Hydrocarbons Energy
Minerals) Concession Rule -2016 sub rule 20
3. Government of Maharashtra letter no. MNG-0719/P.K.43/Ind-
9, Dated 25/02/2021.
ORDER
Whereas a mining lease for Bauxite has been granted to M/s
Ashapura Minechem Ltd. over an area of 62.77 Hee. in Sakhari village
in Mandangad Tahsil of Ratnagiri District for the period of
06/04/2017 to 05/04/2067 and the above said lease has been executed
on 06/04/2017.
Whereas the lessee has not submitted returns for the year from
2017-18 and the lessee has not commenced mining operation for more
than two years and has not applied explaining the reasons for the same
within stipulated time. Thus, the lessee has violated the rule 53 of
Mineral Conservation & Development Rule-2017 and rule 20 of
Minerals (Other than Atomic & Hydrocarbons Energy Minerals)
Concession Rule-2016 respectively.
Therefore, as per the powars conferred under rule 20 of Minerals
(Other than Atomic & Hydrocarbons Energy Minerals) Concession
Rule-2016 vide Industries, Energy & Labour Department,
Govemment of Maharashtra notification No.MNG-0716/C.R.63/Ind-
9, Dated 22/09/2016 and Govemment of Maharashtra letter no
MNG-0719/P.K.43/Ind-9, Dated 25/02/2021, I, The Director,
Geology & Mining, Government of Maharashtra declares the above
mining lease as lapsed.
Sd/-
Director,
Directorate of Geology & Mining,
Government of Maharashtra, Nagpur”
By the said order, the respondent no.5 has come to a reasoned
conclusion that the petitioner-lessee has not submitted the returns from 2017-18
and has not commenced with the mining operation for more than two years and
has also not applied explaining the reasons for the same within the stipulated
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time. In view thereof, under Rule 20 of the Mineral Concession Rules, 2016, the
mining lease of the petitioner has lapsed. We find that such order is passed in
conformity with the statutory mandate and the provisions of the Mines Act and
Rules as set out thereunder. However, it is pertinent to note that such order was
reversed by the impugned order of respondent no.3 dated 24 March 2023 mainly
on the ground that the petitioner was not heard when the order dated 16 June
2021 was passed by respondent no.2. In any event, in our view, as we have
observed below, the reversal of the said order of 16 June 2021 does not assist the
petitioner. This is inasmuch as the mining lease had lapsed by operation of law on
11 January 2017, under Section 9A(2)(c) of the Mines Act as amended. Such
lapsed, or dead lease by operation of law cannot be resurrected.
66. We would now advert to the impugned letters dated 24 March
2023 issued by respondent no.3 along with subsequent letter of 9 February 2024.
The said communications have been issued in the backdrop of Section 4A of the
amended Mines Act. Before we delve into the nuances, it is pertinent to refer to
Section 4 of the Mines Act which reads thus:-
“4. Prospecting or mining operations to be under licence or lease
(1) No person shall undertake any reconnaissance, prospecting or mining
operations in any area, except under and in accordance with the terms and
conditions of a reconnaissance permit or of a prospecting licence or of a
exploration licence or, as the case may be, of a mining lease, granted under
this Act and the rules made thereunder.
PROVIDED that nothing in this sub-section shall effect any prospecting or
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mining operations undertaken in any area in accordance with the terms and
conditions of a prospecting licence or mining lease granted before the
commencement of this Act which is in force at such commencement:
……….
……….
(1A) No person shall transport or stone or cause to be transported or stored
any mineral otherwise than in accordance with the provisions of this Act and
the rules made thereunder (inserted by Act 38 of 1999, w.e.f. 18-12-1999.).
(2) 6[No 7[mineral concession]] shall be granted otherwise than in accordance
with the provisions of this Act and the rules made thereunder.”
It is clearly spelt out in the above provision that no person shall undertake
mining operations in any area including that of a mining lease except in
accordance with the terms and conditions of such mining lease. Adherence to the
terms and conditions of such mining lease is imperative. Further, it prescribes that
no mineral concession shall be granted except as in the manner provided under
the Mines Act and Rules. In other words, no deviation from the provisions is
permissible. It is in such context that Section 4A has been incorporated. Section
4A of the Mines Act reads thus:-
“4A. [Termination of prospecting licences, exploration licences or mining
leases](1) …
(2) …
(3) …
6 Substituted for “No prospecting licence or mining lease”, ibid.
7 Substituted for “reconnaissance permit, prospecting licence or mining lease” by Act 16 of 2021, dt.
28-3-2021, w.e.f. 28-3-2021.
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(4) Where the holder of a mining lease fails to undertake production and
dispatch for a period of two years after the date of execution of the lease or,
having commenced production and dispatch, has discontinued the same for a
period of two years, the lease shall lapse on the expiry of the period of two years
from the date of execution of the lease or, as the case may be, discontinuance of
the production and dispatch:
PROVIDED that the State Government may, on an application made by the
holder of such lease before it lapses and on being satisfied that it shall not be
possible for the holder of the lease to undertake production and dispatch or to
continue such production and dispatch for reasons beyond his control, make an
order, within a period of three months from the date of receipt of such
application, to extend the period of two years by a further period not exceeding
one year and such extension shall not be granted for more than once during the
entire period of lease:
PROVIDED FURTHER that such lease shall lapse on failure to undertake
production and dispatch or having commenced the production and dispatch
fails to continue the same before the end of such extended period.”
The petitioner would contend that the above provision cannot be applied
retrospectively as it was introduced w.e.f. 28 March 2021 and should thus apply
only prospectively. In such backdrop, we refer to the relevant portion of the said
communication which reads thus:-
“OBSERVATIONS
7. I have gone through the written submission along with its annexure, the
relevant provisions of the Mines and Minerals (Development & Regulation) Act
1957, MMDR (Amendment) Act 2015 and MMDR (Amendment) Act 2021 and
MCR Rules, 1960 and 2016.
8. The amendment Act 2021 envisages an extension for a period of one year in
cases where the holder of a mining lease fails to undertake production and
dispatch, for two years either after the execution of the lease or having
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commenced the same. It is also certified that this extension can only be granted
once during the entire period of the lease.
9. This period of two years has to be continues.
10. In view of outbreak of COVID-19 and consequent lockdowns, the Central
Government as per order No.MVI-16/44/2020-Mines-V1 dated 14 October,
2021, has extended the period of production and dispatch specified under sub
section (4) of section 4A of the Act by Six months from the date of expiry of the
period specified or extended under the sub section.
11. This extension is subject to the condition that the existing lease must be
existed on the 1st April, 2020 and the period of two year is or was expiring after
the 1st April, 2020.
12. The procedure to lapse a mining lease has been prescribed u/r 20 of the MCR
2016. It is provided under rule 20 (2) that the lapsing of a mining lease should be
recorded with reasons through an order by the state Government and must be
communicated to the lessee.
13. Sub Rule (3) of rule 20 of MCR 2016 provides that where a lessee in unable
to commence the production and dispatch either after execution of the lease or
after discontinuance for reasons beyond its control, is allowed to submit an
application to the S.G. explaining the reasons, before the lapse of lease. The State
Govt. after examining the adequacy and genuineness of the reasons can pass an
order under sub rule (6) extending the period of two years by further period of
one year.
14. However, the amended (Sub Rule (7) of Rule 20 has declared all lease revival
applications submitted under the third proviso of Sub Section (4) of Section 4 (A),
and which were not disposed of on or before 28th March, 2021 as lapsed.
15. The Hon’ble Apex Court in the case of Common cause Vs Union of India
held that a lease cannot be lapsed automatically as the holder could have valid
reasons for non-commencement or discontinuance which could be because of an
order passed by the authority or any legal compulsion.
16. Shortage of minerals in the domestic market cannot be overcome by lapsing
existing leases.
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17. In the present case it is not disputed that the mining operations were not
commenced due to non-receipt of Environment Clearance.
18. Meanwhile, the MMDR (Amendment) Act, 2015 came in to force. The then
section 4A (4) and Rules 20 were containing the words “mining operation” until
substituted by the words “production and dispatch” by an amendment, Act 2021.
19. As per MCR 2016, prior to amendment on 2021 “mining operation” were
explained as follows:
“Mining operations shall include the erection of machinery, laying of tramway or
construction of a road or any other operation undertaken for the purpose of
winning of minerals”.
20. A provision of the Act cannot be retrospective. Therefore the amended
provisions of section 4 A (4) of the MMDR (Amendment) Act, 2021 were came
into force on 28.03.2021.
CONCLUSION
In the present case, the mining operations could not commenced due to non
receipt of Environment Clearance. Obtaining of EC is an operation undertaken
for the purpose of winning of mineral. This qualifies term mining operations and
proves that it is an adequate and genuine reason for non-commencement of
mining operations under section 4 A (4) of the MMDR (Amendment) Act, 2021.
In view of the above circumstances the non-commencement is justified and
therefore the lessee has to commence the production and dispatch on or before
28th March 2023. The order of DGM, Nagpur declaring the lease as lapsed issued
on 16.06.2021 under rule 20 (6) of MCR, 2016 is not sustainable as it was issued
without giving an opportunity of hearing and hence liable to be quashed and set
aside. Therefore the lease was substring on 28.03.2021 and entitled to commence
production and dispatch on or before 28.03.2023.
ORDER
In exercise of the powers conferred upon the State Government under section
4A (4) of MMDR (Amendment) Act, 2021 and Rule 20 of the MCR 2016, I pass
the following order,
1. The order issued by Director, Geology and Mining, Nagpur dated 16.06.2021
is quashed and set aside.
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2. The lessee M/s Ashapura Minechem Ltd. is allowed to commence the
production and dispatch on or before 28th March 2023.
3. The Director, Geology and Mining, Maharashtra is directed to take further
necessary action in the matter.
4. The order should be communicated to all concerned. ”
A bare perusal of the above context it is to be noted that the
Hon’ble Minister has observed that sub-section 4 of Section 4A cannot be applied
retrospectively and has to be applied prospectively w.e.f. 28 March 2021.
Accordingly, the Hon’ble Minister has extended the period of commencement of
mining operations which later was changed to production and dispatch from the
amendment of 28 March 2021 to 28 March 2023 i.e. for a period of two years as
set out in the amended provision. However, the petitioner would contend that
the said provision under sub-section (4) of Section 4A will not apply to leases
executed prior to such period i.e. to the present lease which was executed on 6
April 2017. Considering this submission it is apposite to refer to the provision as
it existed prior to its substitution, which reads thus:-
“(4) Where the holder of a mining lease fails to undertake mining operations
for a period of one year after the date of execution of the lease or, having
commenced mining operations, has discontinued the same for a period of one
year, the lease shall lapse on the expiry of the period of one year from the date
of execution of the lease or, as the case may be, discontinuance of the mining
operations:
PROVIDED that the State Government may, on an application made by the
holder of such lease before it lapses and on being satisfied that it will not be
possible for the holder of the lease to undertake mining operations or toShubham Page 59 of 73
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a period of three months from the date of receiving of such application, subject
to such conditions as may be prescribed, to the effect that such lease shall not
lapse:
PROVIDED FURTHER that such lease shall lapse on failure to undertake
mining operations or inability to continue the same before the end of a period
of six months from the date of the order of the State Government:
PROVIDED ALSO that the State Government may, on an application made
by the holder of a lease submitted within a period of six months from the date
of its lapse and on being satisfied that such non-commencement or
discontinuance was due to reasons beyond the control of the holder of the
lease, revive the lease within a period of three months from the date of
receiving the application from such prospective or retrospective date as it thinks
fit but not earlier than the date of lapse of the lease:
PROVIDED ALSO that no lease shall be revived under the third proviso for
more than twice during the entire period of the lease.”
A bare perusal of the above would bring to the fore that such provision
which existed prior to its amendment clearly postulates to two pre-requisites (a)
an application to be made by the applicant/lessee before the lease lapses (b) such
application has to be made within the time frame resulting in an order passed by
the State Government to be fulfilled in the manner stipulated in such provision.
Due to absence of fulfillment of such conditions in the present case where the
lease as noted above had long lapsed by the operation of law on 11 January 2017
as mandated under Section 9A(2)(c) of the Mines Act it could never have been
revived. Therefore, even taking the submission of the petitioner at face value that
Section 4A(4) as amended from 28 March 2021 shall not apply to leases executed
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Further, the petitioner would submit that obtaining the mandatory EC is for the
purpose of winning of mineral (i.e. a part of extraction of minerals from the soil)
qualifies the expression ‘mining operation’ under the unamended Section 4A(4)
of the Act, which would be a good reason for non-commencement of mining
operations under such unamended Section 4A(4). However, in that case as
discussed (supra) a mandatory EC for the purpose of mining operation cannot be
dispensed with as also categorically held by the Supreme Court, in cases of mining
operations. In any event, the provisions under the Mines Act read with the prior
approvals, LOI issued by the State Government as also the grant order of the State
Government dated 11 January 2017 on which the petitioner places heavy
reliance, also makes the obtaining of the EC prior to commencement of mining
operations mandatory. Thus, the said submission is also of no assistance to the
petitioner which deserves to be rejected. A perusal of the other impugned
communication dated 9 February 2024 issued by respondent no.3 is now
adverted to, which reads thus:-
“No.-MNG-0722/C.R.133/Ind-9(B) Date: 9th February, 2024
ORDER
Mining lease for Mineral Bauxite have been sanctioned to M/s. Ashapura
Minechem Ltd. at Mauje Sakhari, Tal. Mandangad, Dist.Ratnagiri, their details
are as under:-
Order Area Execution Total Period
No.and Date Date
MMN 62.77 Ha. 06.04.2017 06.04.2017
1004/C.R.65 to
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4/Ind-9 05.04.2067
And whereas, the provision in Section 4A(4) of the MMDR Act reads as follows,
Where the holder of a mining lease fails to undertake production and dispatch
for a period of two years after the date of execution of the lease or, having
commenced production and dispatch, has discontinued the same for a period of
two years, the lease shall lapse on the expiry of the period of two years from the
date of execution of the lease or, as the case may be, discontinuance of the
production and dispatch:
Provided that the State Government may, on an application made by the holder
of such lease before it lapses and on being satisfied that it shall not be possible
for the holder of the lease to undertake production and dispatch or to continue
such production and dispatch for reasons beyond his control, make an order,
within a period of three months from the date of receipt of such application, to
extend the period of two years by a further period not exceeding one year and
such extension shall not be granted for more than once during the entire period
of lease:
Provided further that such lease shall lapse on failure to undertake production
and dispatch or having commenced the production and dispatch fails to
continue the same before the end of such extended period.
And whereas, based on the above provision, the said mining lease was lapsed by
the Director, Directorate of Geology and Mines vide order dated 16/06/2021And Whereas, accordingly, in respect of the said mining lease, the Hon’ble
Minister (Mines) in accordance with the provisions of Section 4-A of the Mines
and Minerals (Development and Regulation) Act, 1957, (Amendment) Act,
2021 and Rule 20 of the Mineral Concession Rules 2016 conducted the hearing
on dated 21/12/2022.
And Whereas, after the hearing, the Hon’ble Minister (Mines), by order dated
24/03/2023, the deadline of production and Dispatch for this mine was given
till 28/03/2023And whereas, however, as the said period was very insufficient, for the mining
lease holder, to start mining, to get the mining plan approved by the Indian
Bureau of Mines, to reach the mineral level by Geo-Physical Survey and drilling,
to prepare and approve the revised mining plan accordingly. It is also necessary
to obtain Consent to Operate from MPCB, therefore to meet these conditions,
M/s. Ashapura Minechem Ltd. as per rule 20 (3) of the Mineral Concession
Rules, 2016 to start production and dispatch in said mining leases submitted
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for granting extension of 01 year from the date of 28/03/2023. Hence Director
Geol And whereas, the provision in Section 4A(4) of the MMDR Act reads as
follows,Where the holder of a mining lease fails to undertake production and dispatch
for a period of two years after the date of execution of the lease or, having
commenced. production and dispatch, has discontinued the same for a period of
two years, the lease shall lapse on the expiry of the period of two years from the
date of execution of the lease or, as the case may be, discontinuance of the
production and dispatch:
Provided that the State Government may, on an application made by the holder
of such lease before it lapses and on being satisfied that it shall not be possible
for the holder of the lease to undertake production and dispatch or to continue
such production and dispatch for reasons beyond his control, make an order,
within a period of three months from the date of receipt of such application, to
extend the period of two years by a furthes period not exceeding one year and
such extension shall not be granted for more than once during the entire period
of lease:
Provided further that such lease shall lapse on failure to undertake production
and dispatch or having commenced the production and dispatch fails to
continue the same before the end of such extended period.
And whereas, based on the above provision, the said mining lease was lapsed by
the Director, Directorate of Geology and Mines vide order dated 16/06/2021And Whereas, accordingly, in respect of the said mining lease, the Hon’ble
Minister (Mines) in accordance with the provisions of Section 4-A of the Mines
and Minerals (Development and Regulation) Act, 1957, (Amendment) Act,
2021 and Rule 20 of the Mineral Concession Rules 2016 conducted the hearing
on dated 21/12/2022.
And Whereas, after the hearing, the Hon’ble Minister (Mines), by order dated
24/03/2023, the deadline of production and Dispatch for this mine was given
till 28/03/2023And whereas, however, as the said period was very insufficient, for the mining
lease holder, to start mining, to get the mining plan approved by the Indian
Bureau of Mines, to reach the mineral level by Geo-Physical Survey and drilling,
to prepare and approve the revised mining plan accordingly. It is also necessary
to obtain Consent to Operate from MPCB, therefore to meet these conditions,
M/s. Ashapura Minechem Ltd. as per rule 20 (3) of the Mineral Concession
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application on date 11/04/2023 to Director, Directorate of Geology and Mining
for granting extension of 01 year from the date of 28/03/2023. Hence Director
Geology and Mining vide letter dated 10.07.2023 submitted the proposal to the
State Government for further action.
Now therefore, exercising the powers conferred upon the State Government
under section 4A(4) of the MMDR Act 2021 and under Rule 20(6) of the MCR
2016 and interest of mineral of state, the State Government is pleased to grant
one year extension to recommence the production and dispatch from the said
lease i.e. up to 28/03/2024, subject to the condition that no further extension of
time for production and dispatch shall be granted to this mine. If the production
and dispatch could not be started on or before 28/03/2024 then the lease will be
liable to be lapsed under the amended clause 4A (4) of The Mines and Minerals
(Development and Regulation) (Amendment) Act, 2021.
(Laxmikant Dhoke)
Joint Secretary,
Government of Maharashtra”
In this regard, we may observe that the above would tantamount to
reviving a lapsed lease by an executive action which has lapsed due to operation of
law on 11 January 2017, as a result of the petitioner’s own non-compliance of the
conditions in the prior approval dated 3 July 2009 followed by the LOI issued by
the State Government dated 12 August 2009. In fact as discussed above, such
lease is rendered non-est as it would be in breach of Section 19 of the Mines Act.
In any event, arguendo, the extension so granted by respondent no.3 under the
said letter dated 9 February 2024 would result in granting the petitioner more
than one extension which is ex facie impermissible and illegal under the statutory
scheme of the Mines Act. Such extensions cannot be granted in respect of leases
which lapsed by operation of law and hit by Section 19 of the Mines Act. As
discussed above, even under the amended and/or unamended provisions of
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of any extension in a manner that the law would mandate. We therefore cannot
subscribe to the submissions of the petitioner that the time granted to the
petitioner by the impugned orders was not adequate to comply with the
mandatory statutory requirements including obtaining the EC under the Mines
Act and Rules. With regard to such extensions given under the impugned orders
dated 24 March 2023 and 9 February 2024 we may observe that it is settled law
that the concept of equality as envisaged under Article 14 is a positive concept
which cannot be enforced in a negative manner. If such claims are enforced,
which are contrary to law, it shall amount to directing to continue and perpetuate
an illegal procedure or an illegal order. Judicial process cannot be abused to
perpetuate illegalities. Two wrongs can never make a right. The Supreme Court in
Ekta Shakti Foundation Vs. Government of NCT of Delhi 8 was pleased to make
these observations in light of the settled law cited by it, which would govern the
facts and circumstances in the proceedings before us.
67. At this juncture we would test the petitioner’s submission in regard
to the relaxation of application of Section 4A of the Mines Act read with Rule
20(1) of the Mineral Concession Rules, 2016. Rule 20(1) of the 2016 MCR
Rules reads thus:-
“20. Lapsing of the mining lease
(1) Where production and dispatch has not commenced within a period of8 (2006) 10 SCC 337
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for a continuous period of two years after commencement of production and
dispatch, the mining lease shall lapse.
(2) The lapsing of a mining lease shall be recorded through an order issued
by the State Government and shall also be communicated to the lessee.
(3) Where a lessee is unable to commence the production and dispatch
within a period of two years from the date of execution of mining lease or
discontinuation of production and dispatch for reasons beyond its control, he
may submit an application to the State Government, explaining the reasons
for the same and stating the further time required, at least three months before
the expiry of such period of two years:
PROVIDED that where the lessee has failed to make the application within
the time stipulated above due to the reasons beyond his control but has made
application before the lapse of lease under sub-rule (1), the State Government
may condone the delay in making the application and in such case the State
Government shall pass an order under sub-section (6) before the lapse of
lease:
PROVIDED FURTHER that where the lessee has failed to make the
application within the time stipulated above or delay in making the
application has not been condoned by the State Government, the lease shall
lapse in accordance with sub-rule (1).
(4) ……..
(5) ……..
(6) ……..
(7) Any application for revival of the mining lease submitted under the third
proviso to sub-section (4) of section 4A, as it stood prior to commencement of
the Mines and Minerals (Development and Regulation) Amendment Act,
2021, namely, the 28th March, 2021, which is not disposed of by the State
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As the above was introduced by an amendment brought about under
Section 13 of the Mines Act w.e.f. 4 March 2016, it would be apposite to also
refer to Rule 28 of the erstwhile Mineral Concession Rules, 1960 which reads
thus:-
“28. Lapsing of leases
(1) Where production and dispatch has not commenced within a period of two
years from the date of execution of the mining lease or is discontinued for a
continuous period of two years after commencement of production or dispatch,
the mining lease shall lapse on the expiry of the period of two years from the
date of execution of the lease or, as the case may be, discontinuance of the
production and dispatch.
(2) The lapsing of the mining lease shall be recorded through an order issued by
the State Government and shall also be communicated to the lessee.
(3) Where a lessee is unable to commence the production and dispatch within a
period of two years from the date of execution of the mining lease or
discontinuation of production and dispatch for reasons beyond his control, he
may submit an application to the State Government, requesting for an extension
of such period of two years by a further period not exceeding one year,
explaining the reasons for the same, at least three months before the expiry of
such period of two years:
PROVIDED where the lessee has failed to make the application within the time
stipulated above, the lease shall lapse on expiry of the period of two years.
(4) Application made under sub-rule (3) shall specify-
(a) the reasons on account of which it will not be possible for the lessee to
undertake mining operations or continue production and dispatch;
(b) the manner in which such reasons are beyond the control of the lessee;
(c) the steps that have been taken by the lessee to mitigate the impact of such
reasons; andShubham Page 67 of 73
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(d) the period of extension sought.
(5) Every application under sub-rule (3) shall be accompanied by a fee of two
hundred rupees.
(6) The State Government shall, after examining the application, pass an order,
within a period of three months from the date of receipt of the application made
under sub-rule (3) or the date on which the mining lease would have otherwise
lapsed, whichever is earlier, either granting or rejecting such request:
PROVIDED that such mining lease shall lapse on failure to undertake
production and dispatch or inability to continue production and dispatch within
the extended period of one year.
PROVIDED FURTHER that such extension shall not be granted for more
than once during the entire period of lease.
(7) The State Government shall communicate to the Coal Controller’s
Organisation, Nominated Authority and Ministry of Coal the order recorded
under sub-rule (2) or issued under sub-rule (6)within fifteen days of recording
or issuing of such order.”
A conjoint reading of Rule 20 of the amended Rules and Rule 28 of the
Mineral Concession Rules, 1960 would also make it clear that if the production
or dispatch has not commenced within the stipulated period of two years from the
date of execution of the mining lease or is discontinued for a continuous period of
2 years after commencement of such production or dispatch then the lease shall
lapse. Even on such count the petitioner has no case, even as contemplated under
the said Rules, the lapsed or dead lease of the petitioner can never be revived.
68. As the last straw on the camel’s back, the petitioner seeking
relaxation of Section 4A read with Rule 20 of the Mineral Concession Rules,
2016 is not tenable, as resorting to such course is statutorily forbidden. Such
submission would ex facie in breach of the provisions under the Mines Act and
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Rules. Accordingly, such contention being completely without merit deserves to
be rejected outright.
69. Further to the above, we may refer to the email communication
dated 17 October 2023 issued by the respondent no.5 to the petitioner, rejecting
the request of the petitioner for the grant of mining code. The said
communication reads thus:-
“Sir,
With reference to your previous email dated 04.10.2023 regarding the
request for issuance of mine code, it is to inform you that the mining Icase
deed for mineral Bauxite over an area of 62.77 hectares situated near Village
Sakhari, Taluka-Mandangad, District-Ratnagiri, Maharashtra. It has come to
this office’s knowledge that the subject lease deed, executed by the State
Government of Maharashtra on 06.04.2017 in favor of M/s Ashapura
Mineehem Ltd, was carried out by the State Govt. after a period exceeding
two months from the deadline, which was set at 11.01.2017. This is in V
contravention of the MM(D&R) Amendment Act 2015 and Minerals (Other
than Atomic and Hydrocarbons Energy Minerals) Concession Rules -2016.
Furthermore, I would like to draw your attention to the communication
received from the Ministry of Mines, dated 27.11.2018, vide its letter no. F.
No. 7/4/2018-M. IV. In this communication, it was clearly advised to the
concerned State Governments that any Mining Lease (ML) executed and
registered after 11.01.2017 in respect of the cases saved under Section
10A(2) (c), would be deemed ab initio void under Section 19 of the MMDR
Act due to their contravention of the Act.
In light of the aforementioned provisions and guidelines, the matter has been
duly examined and this is to inform you that this office is unable to consider
your request for the generation of a mine code.
Encl: Ministry of Mines letter no. dated 27.11.2018″
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A bare reading of the above communication would make it
abundantly clear that respondent no.5-Ministry of Mines reiterating the position
of law under Section 10A(2)(c) read with Section 19 of the Mines Act has
conveyed that the mining lease of the petitioner executed and registered after the
statutory cut-off date of 11 January 2017 considering the non-compliances of the
petitioner as on such date has lapsed and cannot be revived. The logical and legal
conclusion of such lapse would be refusal of the mining code as conveyed by the
said email, warranting no interference.
70. The petitioner would strenuously contend that Section 4A of the
Mines Act should be interpreted in a particular manner. This according to the
petitioner being that the time taken by the government authorities and/or
agencies to pass the revival order dated 24 March 2023 and the subsequent
extension order dated 9 March 2024 (i.e. 32 months in aggregate out of 36
months) be excluded. Such contention would require rewriting of the provisions
under Section 4A and/or relaxation in the said provision, neither of which is
permissible, much less legally tenable. Such course is not contemplated in the said
provision. To call upon the Court undertake such exercise would tantamount to
exercising powers within legislative domain, which is constitutionally
impermissible under the recognized doctrine of Separation of Powers which
forms part of the basic structure theory as propounded in the Kesavananda
Bharati Vs State of Kerala & Anr.9.
9 (1973) 4 SCC 225
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71. The above submission of the petitioner is not limited to Section 4A
but also to its interpretation of Section 9A(2)(c) of the Mines Amendment Act,
2015. In this context it is reiterated that the conditions as prescribed under the
LOI have to be fulfilled before the cut-off date of 11 January 2017. In the
absence of the same, the petitioner cannot seek execution of the lease deed on the
ground that it has fulfilled the condition subsequently. In this context, the privy
counsel in the case of Nazir Ahmad Vs. King-Emperor: Privy Council10 held that
“where a power is given to do a certain thing in a certain way the thing must be
done in that way or not at all. Other methods of performance are necessarily
forbidden”. This principle was first laid down in the celebrated decision of the
Chancery Court in the case of Taylor Vs. Taylor11 where it was held that where a
statutory power is conferred for the first time upon a Court and the mode of
exercising it is pointed out, it means that no other mode is to be adopted. This
principle has been time and again followed by our Courts as recently by the
Supreme Court in the case of Union of India Vs. Mahendra Singh 12 where the
Supreme Court held that if a particular procedure in filling up the application
form is prescribed, the application form should be filled up following that
procedure alone. Following such settled principles of law, the submissions of the
petitioner suggesting relaxing and/or diluting the statutory provisions under
Section 10A(2)(c) read with Section 4A of the amended Mines Act cannot be
10 AIR 1936 PC 253(2)
11 (L.R.) 1 Ch. 426, 431
12 2022 SCC OnLine SC 909
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accepted.
72. The petitioner would urge that some right had accrued and become
vested in the petitioner vide the prior approval letter of respondent no.5 dated 3
July 2009 followed by the LOI issued by the State Government dated 12 August
2009. As such right had vested in the petitioner, it had been expressly saved by
Section 10A(2)(c) of the Mines Act, as amended. The Supreme Court in the case
of State of Rajasthan Vs. Shrawan Kumar Kumawat 13 held in categorical terms
that there is no vested right with the applicant to seek lease of a government land
or over the minerals beneath the soil. It has been held that there is no question of
having any fundamental right in mining. Further, no applicant can contend that
he is entitled for a lease merely on the basis of a pending application. The
Supreme Court also observed that when a decision is taken by a competent
authority in public interest by evolving a better process such as auction, a right, if
any, to the applicant seeking lease over a government land evaporates on its own.
An applicant cannot have an exclusive right in seeking grant of licence of a
mineral unless facilitated accordingly by a statute.
73. Thus, accepting the petitioner’s submission would run contrary to
such settled legal principles as also to the letter and spirit of Section 10A(2)(c) of
the Mines Act as amended. The said Section does not save any such right much
less vested right which never accrued to the petitioner, who failed to comply with
13 2023 SCC OnLine SC 898
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the mandatory conditions under the prior approval letter and/or the LOI, as on
the cut-off date of 11 January 2017. In this context the petitioner in the petition
has placed reliance on the judgment of the Supreme Court in the case of Bhushan
Power and Steel Ltd. Vs. State of Odisha14. In the said case the Supreme Court
held that some kind of right in law came to be vested in the category of cases
which led the parliament to make such provision, saving those rights and
understandably so. Such situation has not risen in the given facts to make the said
decision applicable to the present case. The subsequent decisions quoted in the
petition, citing the decision of Bhushan Power (supra), stands on completely
different facts and circumstances which are of no assistance to the petitioner.
74. In light of the forgoing discussion, there is no merit in the petition.
Accordingly, the following order is passed:-
ORDER
i. The petition is dismissed. No costs.
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