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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 2027 of 2016 With W.P.(C) No. 2207 of 2016 With W.P.(C) No. 2515 of 2016 M/s Shah Brothers --- --- --- Petitioner [in WPC 2027/2016] Anil Khirwal --- --- --- Petitioner [in WPC 2207/2016] Padam Kumar Jain --- --- --- Petitioner [In WPC 2515/2016] Versus 1. The Union of India through the Ministry of Mines and Steel 2. The State of Jharkhand through the principal Secretary, Department of Mines and Geology 3. The Joint Secretary, Department of Mines and Geology, Government of Jharkhand 4. The Deputy Commissioner, West Singhbhum, Chaibasa 5. The District Mining Officer, West Singhbhum, Chaibasa 6. The Assistant Mining Officer, West Singhbhum, Chaibasa --- --- --- Respondents [in all the cases] --- Coram: Hon'ble Mr. Justice Aparesh Kumar Singh --- For the Petitioners: M/s Amarendra Sharan, Sr. Advocate, Krishanu Ray, Advocate (in WPC 2027/2016) M/s Indrajit Sinha, Krishanu Ray, Vijay Kant Dubey, Advocates (in WPC 2207/2016 & WPC 2515/2016) For the Resp-UOI: Mr. Rajiv Sinha, ASGI For the Resp-State: M/s Ajit Kumar, A.A.G., Aparajita Bharadwaj, JC to A.A.G. --- Reserved on: 11.08.2016 Pronounced on: 06 /10/2016 --- 14/ 06/10/2016
Common issues are involved in all these writ petitions. Therefore, they have been heard together and are being decided by this common judgment.
2. In all these writ petitions, petitioners' application for renewal of lease has been rejected by separate orders dated 01.04.2016 passed by the Department of Industries, Mines and Geology, Government of Jharkhand. Consequent thereto, petitioners have been asked to hand over the possession of leased area to Mines Department, failing which steps would be taken to take possession of the lease hold property by the State authorities. The lease area have thereafter been made open for Public Auction by Gazette Notification.
3. Petitioners have questioned the exercise of such power on the part of the State Government after coming into force of the Mines and Minerals 2 (Development and Regulation) (Amendment) Act, 2015 (hereinafter to be referred as 'Amendment Act, 2015') and the judgment rendered by the Apex Court in the case of Common Cause versus Union of India & Ors in Writ Petition (Civil) No. 114/2014 and Writ Petition (Civil) No. 194/2014 dated 04.04.2016. Petitioners have accordingly assailed the impugned orders of rejection of their renewal application. They have also assailed the Gazette Notification issued thereafter making the leasehold area open for public auction.
4. Individual facts of the writ petitioners, the submissions made on behalf of learned counsel for the petitioners and the reply advanced on behalf of the Respondents State and Union of India are being noticed hereinafter. WPC 2027/2016
5. Petitioner was granted mining lease of Iron Ore over an area of 233.99 Hectares in Karampada Reserve Forest in West Singhbhum district with effect from 10.07.1972 for a period of 30 years (Annexure-1). Twelve month before expiry of the period of lease, it applied for first renewal on 08.07.2001 in terms of Rule 24(A)(1) of Mineral Concession Rules, 1960, which however, remained pending till Mines and Minerals (Development and Regulation) Amendment Act, 2015 was enacted. The Ordinance had come into force with effect from 12.01.2015 before the Amendment Act was passed by the Parliament. Prior to that, on 18.07.2014, Rules 24A(6) of Mineral Concession Rules, 1960 was amended which provided for deemed extension for a period of two years with effect from 18.07.2014 of such cases pending for first renewal of lease deed where renewal application had been made within time. Petitioner's application for renewal of lease has been rejected by Annexure-19 order dated 01.04.2016 contained in Memo No. 882 passed by the Department of Industries, Mines & Geology, Government of Jharkhand. Consequent thereto, petitioner has been asked to hand over possession of the lease area to Mines Department by letter no. 445 dated 05.04.2016 (Annexure-20) issued by the Deputy Commissioner, West Singhbhum, 3 Chaibasa, failing which steps would be taken to take possession of the lease hold property by the State Authorities.
6. It is submitted that the petitioner has obtained forest clearances for the break up area i.e. area which has been diverted for non-forest purpose having 24.86 acres vide Annexure-11 order dated 19.05.2005. According to the petitioner, it has obtained environmental clearances on 23.01.2007 and 19.07.2013 for 01 lakh MT and 08 lakh MT respectively by order contained at Annexure-9 & 10. It is submitted that only after clarification made for obtaining environmental clearances under the environmental Protection Act, 1986, petitioner applied on 30.01.2006 for the same which was granted on 23.01.2007 and has been extended from time to time. Petitioner has also complied with the provisions of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, as per Certificate dated 12.01.2011 (Annexure-12) issued by the competent authority. Petitioner has always worked the mines as per the approved plan. The Indian Bureau of Mines (hereinafter to be referred as 'IBM') has not raised the issue regarding mining without the approved plan or scheme. The statutory certificate of IBM is contained at Annexures-4 to 8 and is extended up to 31.03.2019. As per Annexure-23 to the rejoinder to the counter affidavit and supplementary counter affidavit of the State issued by the IBM, no violation has been found in respect of Karampada Ore Mines having an area of 233.99 hectares of the petitioner situated in Karampada Forest in Saranda Forest Division in West Singhbhum up to 31.03.2016.
7. Petitioner has contended that it has obtained the Consent to Operate (CTO) and applied for it within time. Once the application for Consent to Operate is made, the same is deemed to have been granted unconditionally, if not expressly refused. The Jharkhand State Pollution Control Board had never refused issuance of CTO till 2016. But suddenly on 11.07.2016, it has issued a letter informing the petitioner that its application for grant of CTO dated 30.09.2014 has been rejected as it did not submit a valid mining lease deed. These documents are enclosed as 4 Annexure-13 series to the writ petition and Annexure-22 series to the rejoinder affidavit. It is stated that such order has been recalled and the petitioner has been issued Consent to Operate by the Jharkhand State Pollution Control Board. In respect of the charge relating to exploration under section 27(3) of Mining Concession Rules, 1960 (hereinafter to be referred as ' M.C.R, 1960'), it is stated that it is not applicable since the State was to execute the supplementary lease deed with condition of exploration which was not executed, as per the Central Government Circular dated 23.12.2010. According to the petitioner, exploration was done and data reported to IBM. In respect of allegation relating to violations of Rules 13(1) and 42(1((c)(i) of Mineral Conservation and Development Rules, 1988 (hereinafter to be referred as 'M.C.D.R., 1988') and Rule 22(A) of M.C.R., 1960, it is stated that all the violations fall within the exclusive domain of IBM and DGMS which have given clearances that there are no outstanding violations till 31.03.2016, as per Annexure-23 of the rejoinder of the affidavit. Further, in respect of the allegations relating to violation of Clauses 1,2,5,11(c) of Part VII of Form-K (Lease Deed), learned counsel for the petitioner submits that all these allegations have been categorically replied at paragraph-47 of the writ petition. The State could not have alleged violation of the terms of the lease deed without physical verification of mines and mining plan / scheme under which petitioner was working the mines. It is stated on their behalf that the petitioner is undertaking the mining operations completely in accordance with law. IBM and DGMS have never pointed out any violation regarding these clauses. Annexure-23 of the rejoinder is again being relied in support thereof. It is stated that Xerox copy of the violation pointed out after inspection made under M.C.D.R., 1988 and compliance position during the last five years which has been taken from approved modified mining plan dated 08.12.2015, is also enclosed as part of the letter dated 02.05.2016 (Annexure-23) issued by Senior Assistant Controller of Mines, and Head of Office of Regional Controller of Mines, IBM, Ministry of Mines, Government of India. On the observations of Justice Shah Commission on the 5 following points inter-alia (i) delay in obtaining environmental clearances, (ii) extraction of mineral beyond environmental clearance, (iii) mining in safety zone beyond lease hold area, and (iv) difference in monthly returns filed by the lessee in IBM and DGMS found; petitioner have contended that there has been delay in obtaining environmental clearances as earlier stated also. The lessee has never extracted minerals beyond environmental clearances. According to it, extraction and dispatch from stock was two distinct concepts. Dispatch cannot meet the production and extraction. Therefore, it had denied the observation that it has not worked in safety zone.
8. Counsel for the petitioner has also controverted the observation made by the Justice Shah Commission on the question of working outside the lease area by stating that inspection conducted by the Director, DGMS has not pointed out any illegal mining. Such allegation was neither part of the show-cause notice or the impugned order. Counsel for the petitioner has therefore sought to controvert the allegations contained in the counter affidavit in relation to the allegations of delay in obtaining forest clearance, royalty clearance certificate, environmental clearance, mining plan through the aforesaid categorical statements. According to the petitioner, DMO has issued royalty clearance certificate for the period up to March 2016. It is their case that the State Government had itself accepted, as per the second show-cause notice issued to it earlier, that the petitioner has been issued royalty clearance certificate on 24.05.2014,. In respect of the remarks contained in the show-cause notice dated 31.07.2015 (Annexure-17) in relation to the royalty clearance certificate and the demand raised by the State Government towards price of mineral raised in excess of environmental clearance, it is stated at para-48 of the writ petition that the same was challenged before the Revisional Authority and the demand has been stayed by an interim order dated 18.08.2015. It is further submitted that the Respondent also in their counter affidavit at para-31 have accepted that the Central Government Mining Tribunal have passed an interim order on 18.08.2015 and that the final decision is awaited. So far as the 6 allegation relating to the complaint case filed by the Jharkhand State Pollution Control Board is concerned, as stated at para-32 of the counter affidavit, it is contended that the same has got no bearing with the extension of the period of lease and it is a separate proceeding altogether.
9. In the background of these relevant facts, learned Senior Counsel for the petitioner Mr. Amarendra Sharan submits that the impugned order rejecting the application of the petitioner for renewal of lease, is bad in law. Learned Senior Counsel for the petitioner has advanced the following submissions in support of the challenge to the impugned order of rejection of renewal application of the petitioner.
Under the M.M.D.R. Act, the regulation and development of mines and minerals are under the control of the Union. The Act itself provides for procedure for grant and renewal of licence of lease, terms and conditions thereto, breach, penalty, etc. Though State is the owner of the mineral deposits in the land which vest with the Government, but the Parliament has, by reason of the declaration made in Section 2 of the M.M.D.R. Act, acquired complete dominion over the legislative field covered by the said legislation. The Act though does not denude the State of its ownership of the minerals, but it tends to regulate to the extent set out in the provisions of the Act the development of mines and minerals in the State (Civil Appeal No. 3608/2016 judgment dated 08.04.2016 (State of Kerala & others vs. M/s Kerala Rare Earth & Minerals Ltd). The M.C.R. provides for rules of grant and renewal of lease and licence. Section 8 of M.M.D.R. Act lays down the period for which a mining lease is granted and renewed. This section has been amended from time to time. The original section 8(3), as introduced in 1957, confers power to authorize renewal solely upon the Central Government. Thereafter, for the first time vide amendment in 1999, power to authorize renewal was vested with the State Government. The M.M.D.R. (Amendment) Act, 2015 has restored this power to the Central Government. Under the un-amended Sub- Section 3 of Section 8, prior to the Amendment Act, 2015, the State Government 7 had the power to authorize second and subsequent renewal of mining lease. Section 8 has been amended and substituted by the Amendment Act, 2015 whereunder, the power of the State Government to authorize renewal of mining lease has been done away. The scope of Section 8(3) prior to the Amendment Act, 2015 has been interpreted by the Hon'ble Supreme Court in the catena of judgments. Vide judgment rendered in the case of Goa Foundation vs. Union of India [(2014) 6 SCC 590] dated 21.04.2014, the Apex Court held that an 'Express Order' is mandatory for leases awaiting second and subsequent renewal under section 8(3). Amendment Act, 2015 has brought about a huge change, so far as the regime regulating the period of lease is concerned. Section 8 has been made inoperative inter-alia, for Iron ore and section 8A has been inserted to regulate the period of grant and subsistence of leases with effect from 12.01.2015. Under sub- section 6 thereof, all leases for non-captive purposes including that of the petitioner has been extended up to 31.03.2020 by operation of law or for a period of 50 years from the date of grant, whichever is earlier. As per section 8A(3), all mining lease granted before commencement of the Amendment Act, 2015, shall be deemed to be granted for 50 years. It is submitted that as a result of the amendment, the process of renewal has been completely done away with. However, the rights that accrued in favour of the renewal applicant has been taken care of by extending the period of lease deed beyond the period.
10. It is submitted that petitioner's case is squarely covered by Section 8A(3) read with Section 8A(6) of the M.M.D.R. Act. The statutory right of extension of mining lease flows from the statute and is an automatic extension. This section does not envisage imposition or fulfillment of any conditions extraneous to the scheme of the Act, either prior or post amendment. The State Government by passing the order of denial of extension is in spirit, passing the order of rejection of renewal application which is nothing but an attempt to circumvent the provisions of the Amendment Act, 2015. If even after Amendment Act, 2015, its object is not given effect to, it would amount to disregard the intention of the 8 Legislature. In effect, the State Government by its impugned action, has tried to maintain its status as it was prior to amendment, so far as the second and subsequent renewals are concerned and is trying to create power for itself, so far as cases for first renewal (all prior to 12.01.2015) are concerned.
11. Counsel for the petitioner has submitted that the law prevailing on the date of decision making has to be applied. Reliance has been placed upon the judgments rendered by the Apex Court in the case of State of Tamil Nadu vs. Hind Stone & others reported in [(1981) 2 SCC 205, Union of India & others vs. Indian Charge Chrome & another [(1999) 7 SCC 314], Chairman - cum - Managing Director, Coal India Ltd. & others vs. Ananta Saha & others [(2011) 5 SCC 142] and in the case of Commissioner of Municipal Corporation, Simla vs. Prem Lata Sood & others [(2007) 11 SCC 40]. It is reiterated on their part that M.M.D.R. Act, 1957 post 2015 amendment, does not contemplate any procedure for denying extension / rejecting the applications for renewal / extension of period of lease, whether be it a case of first renewal application or second and subsequent renewal application pending prior to 12.01.2015. The State Legislature having been denuded of its Legislative power with respect to the regulation of mines and minerals to the extent provided in the M.M.D.R. Act in view of Parliamentary declaration in Section 2 of the M.M.D.R. Act, cannot justify the impugned order dated 01.04.2016 on any basis other than the provisions of M.M.D.R. Act as amended. The Executive power of the State under Article 162 of the Constitution of India extends only to the matters with respect to which the Legislature of the State has the power to make laws. Therefore, State is also denuded of its Executive power in regard to matters covered by the M.M.D.R. Act and Rules. Reliance has been placed upon the Constitution Bench Judgment in the case of State of Orissa & others vs. M/s M.A. Tulloch & Co. [(1964) 4 SCR 461], Baijnath Kedia vs. State of Bihar & others [(1969) 3 SCC 838], State of WB vs. Kesoram Industries Ltd. & others [(2004) 10 SCC 201] and in the case of Sandur Manganese & Iron Ores Ltd 9 vs. State of Karnataka & Ors. [(2010) 13 SCC 1) as also judgment rendered in the case of Bharat Coking Coal Ltd. Vs. State of Bihar & others [(1990) 4 SCC 557].
12. Learned Senior counsel for the petitioner submits that it is equally well settled that M.M.D.R. Act and Rules are a complete code with respect to the grant and renewal of mining leases of the lands belonging to the State Government. Reliance has been placed upon a judgment rendered by the Apex Court in the case of State of Assam & others vs. Om Prakash Mehta & others [(1973) 1 SCC 584, para-12 thereof]. Both the Central Government and the State Government act as mere delegates of Parliament while exercising powers under the M.M.D.R. Act and M.C.R., 1960. Reference has been made to the judgment rendered by the Apex Court in the case of Quarry Owners' Association vs. State of Bihar & others [(2000) 8 SCC 655, para-45&57].
13. Learned Senior Counsel for the petitioner submits that M.M.D.R. Act in itself provides for different modes to deal with different contingencies and procedure to bring an end to a lease viz. termination, determination and lapsing of lease. These contingencies have been dealt with in the judgment rendered by the Apex Court in the case of Common Cause (Supra) dated 04.04.2016. Reference is made to the provisions of section 4A of the M.M.D.R. Act which deals with premature termination of lease on the grounds enumerated therein and to be acted upon by the State Government at the request of the Central Government. Reliance has also been placed upon provisions relating to lapse of lease under section 4A(4) read with Rule 28 of M.C.R., 1960. These rules have been framed under the Act of 1957. Learned Senior Counsel for the petitioner has also referred to the provisions relating to determination of lease as contained in Rule 27 of M.C.R., 1960. It is contended that Rules 28 and 28A of M.C.R., 1960 provides for lapsing of the leases in the event when the State Government has passed a specific order to that effect, as held by the Apex Court in its judgment in the case of Common Cause (Supra). Based upon the aforesaid submissions and provisions, it is contended that 10 the State Government has neither terminated or prematurely terminated the lease, nor determined it, nor declared the lease as lapsed. Denial of extension as contemplated in the impugned order, is completely unconnected to the scheme of M.M.D.R. Act and the Rules framed thereunder and is beyond the competence of the State. Therefore, the order of the State Government dated 01.04.2016 purportedly passed in exercise of powers under section 8A(6) of the M.M.D.R. Act, is wholly without jurisdiction and nullity in the eyes of law.
14. Learned Senior Counsel for the petitioner submits that the amended provisions under section 8A(3) and 8A(6) should be interpreted through the tools of statutory interpretation i.e. (i) literal interpretation, (ii) purposive interpretation,
(iii) Heydon's rule i.e. mischief rule. It is submitted that if the language of amended provisions does not lead to any absurd construction, then golden rule of literal construction should apply. From the reading of the sub-rule, it is clear that there is no power conferred upon the State Government to deny extension. For the purposes of the purposive construction of the provisions, the object and aims of Amendment Act, 2015 have to be examined. Reliance is placed on a recent judgment rendered by the Apex Court in the case of Shailesh Dhairyawan versus Mohan Balkrishna Lulla [(2016) 3 SCC 619]. Relying upon the judgment rendered by the Apex Court in the case of Common Cause (Supra), it is submitted that the Hon'ble Supreme Court had deeply examined the aims and object of the Amendment Act, 2015 and came to a definite conclusion that the amendment proposed to put in place a mechanism for (i) eliminating discretion,
(ii) improving transparency in the allocation of mineral resources, (iii) Simplifying procedures, (iv) eliminating delay in administration so as to enable expeditious and optimum development of the mineral resources of the country. The salient features of the Amendment Act, 2015, as quoted in the judgment of Common Cause (Supra), also shows that there is no provision of renewal of lease, as tenure of mining lease has been increased from existing 30 years to 50 years, thereby removing the element of discretion. The object is to provide impetus to the mining 11 sector which has been aggrieved due to second and subsequent renewal remaining pending. It is further submitted that in matters of interpretation of such Acts, mischief rule or Heidon's rule is often applied. The reason for amendment to the M.M.D.R. Act, is aimed at remedying a situation which existed prior to it. It was directed at remedying the grievances of the mining industry due to second and subsequent renewal pending and also because provisions of law relating to rules have been found to be wanting. The impugned action of the Respondent State are therefore substantively ultra vires as it has got no power or jurisdiction to refuse extension under the Amendment Act, 2015. Reliance has been placed upon para- 32(iv) & (vi) of the judgment of the Apex Court in Common Cause (Supra).
15. Learned Senior Counsel for the petitioner submits that the understanding of the State Government on the 'subject to' clause in the amended section 8A(6) of M.M.D.R. Act, is wholly misconceived." The language of section 8A(6) clearly speaks of deeming fiction i.e. 'shall be extended and shall be deemed to be extended'. Therefore, no affirmative action is required on the part of the State Government. It is further equally imperative to read under the amended provisions that the extension shall be coupled with the conditions of the lease which any lessee is bound to comply. However, when there is no power conferred under the amended Act for rejection of the extension, resort to the provisions on the 'subject to' clause for refusing extension on the part of the State Government' suffers from substantive ultra vires and cannot be upheld in the eyes of law.
16. Learned Senior Counsel for the petitioner has also questioned the impugned action on the grounds of procedural ultra vires and infirmity. It is submitted that High Power Committee constituted by the State Government is in teeth of the provisions of section 26(2) of the M.M.D.R. Act, which has not been notified in the Extraordinary Gazette. Even otherwise, there is no role of High Power Committee envisaged under section 8A(6) of the Amendment Act, 2015. It is submitted that on perusal of the Report of the High Power Committee at Annexure-19, there are no specific case of violations pointed out in respect of any 12 lessee. However, impugned order has been passed relying upon the report of the High Power Committee by the Joint Secretary, Mines and Geology Department, Government of Jharkhand without giving any opportunity of hearing by the authority passing the impugned order. A mere perusal of the impugned order would show that it suffers from complete non-application of mind to the petitioner's show-cause dated 29.06.2015 and 31.07.2015 (Annexures-16&17 to the writ petition). The impugned order only refers to the allegations of charges and does not contain any finding after due application of mind to the reply of the petitioner to the alleged charges / violations. It straightaway proceeds to hold that the Committee has found repeated violations committed by the lessee and that it has not complied with the terms and conditions of the lease. Thereafter, it holds that the State Government is fully satisfied that the lease in question is not a fit case for extension under section 8A(6) of the M.M.D.R. Act, 1957, as amended vide Amendment Act of 2015. Therefore, extension of lease in question is rejected.
17. It is further submitted that the order not only suffers from procedural irregularity, but is violative of doctrine of proportionality as well. The industry employs about 2000 people directly or indirectly and is paying substantial amount to the tune of several hundred crores to the State Government. Reliance has been also placed upon the press report issued by the Ministry of Mines, Government of India after the Ordinance to the Amendment Act, 2015 was promulgated to submit that it conveyed the intention to revive the mining industry which was suffering due to renewal applications pending for longer period of time at the level of the State Government. In the instant case, for about 14 years since it was made on 09.07.2001 well within the 12 months before expiry of the lease period. Submissions of the Counsel for the Respondent State:
18. Learned A.A.G. Mr. Ajit Kumar, appearing for the State has defended the impugned action of the State Government inter-alia on the following grounds. 13
It is stated that the petitioner's firm was given mining lease of Iron Ore and Manganese by way of registered lease agreement on 10.07.1972 for 30 years. Petitioner's firm applied for first renewal on 09.07.2001 over 233.99 hectares area. Out of this 233.99 hectares of land, forest clearance was available on 24.856 hectares only comprising 12.564 hectares for mining of mineral, 7.140 hectares for over burden dump, 0.24 hectares for mineral storage and 4.912 hectares for roads. It is further stated that MoEF gave environmental clearance on 23.01.2007 (Annexure-9 to the writ petition) for 1 lakh tonne raising it from 60,000 tonnes with conditions that (i) tree density should be 2000 plants per hectare (ii) digital processing of the entire lease area required and (iii) CTO to be taken before starting production from State Pollution Control Board. Petitioner has failed to comply the above conditions. Petitioner violated these conditions since 2007 and for the first time, has taken CTO on 24.07.2010 (Annexure-A to the counter affidavit). It is further stated that thereafter the petitioner again obtained CTO for the period 01.10.2012 to 30.09.2014 vide letter no. 6211 dated 29.11.2012 of SPCB and letter no. 5119 dated 31.12.2013 for the period 01.10.2013 to 30.09.2014. It is crystal clear from the above CTO that the lessee was not having CTO from 01.10.2010 to 30.09.2012 (Annexure-A/2 & A/3 to the counter affidavit). It is further stated that the findings of Justice M.B. Shah Commission shows that CTO was to be taken immediately after 23.01.2007 for starting production in which the lessee failed and continued its mining and production violating the statutory conditions as made in the MoEF letter for grant of environmental clearance (Annexure-B to counter affidavit).
19. It is further stated that Indian Bureau of Mines (IBM) vide letter dated 23.05.2012 once again approved the scheme of mining and modified it on 23.05.2012 with conditions laid down in clause-7 and clause-9, though this scheme and approval, in any way, cannot be taken as the approval of the Government. It is further stated that environmental clearance was revised by MoEF on 19.07.2013 (Annexure-10 to the writ petition) wherein it has been stated 14 that there was a proposal to surrender 43.769 hectares of forest land which has been taken over by the Forest Department vide letter no. 1211 dated 14.06.2005. The mining lease for the reduced area is not yet renewed and therefore the mining scheme has been prepared for the total mine lease area. TORs for this project was prescribed on 22.06.2010. It is also mentioned in the environmental clearance issued by MoEF dated 23.02.2007 that the life of the mines is 105 years but in the environmental clearance given on 19.07.2013, it is stated that life of mines is 30 years.
20. It is further stated that pursuant to the report of Justice M.B. Shah Commission which was submitted on 14.10.2013, petitioner was issued show-cause notices on 27.09.2014, 14.10.2014, 28.10.2014 along with opportunity of personal hearing (Annexure-C series to the counter affidavit). It is further stated that the State Government issued a Circular dated 09.03.2015 to all the authorities / respondents for proper recommendation about eligibility of extension of time period for the lease holders in the light of the amendment (Annexure-F to the counter affidavit). Thereafter, the Deputy Commissioner, West Singhbhum vide letter dated 06.04.2015 sent a report of 22 lessees recommending not to extend the term of lease period as they have violated certain terms and conditions, wherein name of the petitioner is at serial no. 13(Annexure-G to the counter affidavit). Thereafter, Department of Cabinet Secretariat and Co-ordination issued a letter dated 05.02.2016 forming a high power seven member committee which was published in the Jharkhand Gazette. (Annexure-H to the counter affidavit). It is further stated that the Department of Mines vide letter dated 09.07.2015 instructed the committee to inspect all the mines and submit a report of compliance of all the terms and conditions of the lease in reference to section 8A(5) and 8A(6) of the M.M.D.R. (Amendment) Act, 2015 in a prescribed format (Annexure-J to the counter affidavit). The Technical Sub Committee inspected all the leases in question and submitted its report in prescribed format including that of the petitioner (Annexure-K to the counter affidavit). Thereafter, the Department of 15 Mines and Geology summarized all the violations mentioned against the petitioner by different agencies and issued show-cause notice to the petitioner on 31.07.2015, to which the petitioner submitted its reply on 20.08.2015 with a prayer for extension of lease period under the amended M.M.D.R. Act. After hearing the petitioner, the Committee submitted its report to the Government (Annexure-L to the counter affidavit) wherein petitioner has been found to have violated certain terms and conditions and did not find them eligible for extension of time period. The Mines Department sought opinion regarding the same from the law department (Annexure-H to the counter affidavit).
21. It is further stated that the learned Advocate General recommended that the administrative department can take appropriate actions if all the terms and conditions is not satisfied. In the case of the petitioner, it was not a fit case for extension as all the terms and conditions were not satisfied. Therefore, petitioner's applications dated 29.06.2015 and 20.08.2015 were rejected. Thereafter, the Deputy Commissioner, Chaibasa issued a letter dated 05.04.2016 to the petitioner to surrender the possession of the land in favour of State Government (Annexure- N to the counter affidavit). When the petitioner did not surrender, possession was taken by public beat of the drum on 07.04.2016 by Assistant Mining Officer. It is further stated that the petitioner vide letter dated 06.04.2016 sought permission from the Government seeking six months time for removing properties from the lease hold area (Annexure-P to the counter affidavit). However, subsequent to the passing of the impugned order dated 01.04.2016, the State Government has taken possession of the mining lease hold area on 08.04.2016 and the same has already been published in Jharkhand Gazette vide Notification dated 20.04.2016 (Annexure-O to the counter affidavit). It is further stated that the power to grant extension would also include the power to reject as well going by the General Clause Act, 1897. The State Government is the owner of the mineral under its territory and all grants and rejection of mineral concession is in the sole domain of the State. It is further stated that the original lease area of the petitioner is 233.99 16 hectares. In their renewal application, though they have retained an area of the desired lease up to 233.99 hectares, however they have stated that they have surrendered 43.769 hectares area to the forest authority and the area of 190.221 hectares shall be retained by them. They have not produced the land schedule and map of surrendered area to the Mines Department (Annexure-R to the counter affidavit). It is further stated that the latest modified mining plan and progressive mines closure plan were approved on 08.12.2015 i.e. after the amendment Act came into existence. It also contains a progressive mines closure plan for about 43.73 hectares of non-mineralized zone. This is contrary to the provisions of rule 22(5) of M.C.R., 1960. The land schedule of the surrendered lease area is also not well documented and not submitted in District Mining Office, Chaibasa. It is further stated that when the petitioner exceeded the production limit and the production and dispatch was done without any lawful authority, a demand of Rs. 1243.94 crores was raised on 02.05.2015 and has been outstanding against the petitioner (Annexure-S to the counter affidavit). The Jharkhand State Pollution Control Board has also filed a complaint case before the Court of Chief Judicial Magistrate, Chaibasa vide letter no. 1748 dated 19.06.2012 (Annexure-T to the counter affidavit).
22. It is further stated that despite the law concerning the rights of forest dwelling communities, the petitioner could obtain a certificate only on 11.09.2014 and that too for 118.636 hectares of forest land. It is also stated that several other lessees whom State has refused to extend the lease, have already approached the Mines Tribunal (Annexure-V to the counter affidavit). Petitioner is supposed to maintain and keep boundary marks in good order to secure and keep good condition and to maintain plan, etc. which the petitioner could not satisfy to the District Administration. The DGMS is also not satisfied with the functioning of the petitioner. Justice M.B. Shah Commission has also made certain observation as noted above.
17
23. It is further stated that under the provisions of Section 26(2) of the M.M.D.R. Act, the State Government can exercise its power on its own or through its office subordinate or authority, as may be specified in the notification. Thus, the constitution of the High Power Committee by the department vide Notification no. 1044 dated 21.05.2015 is justified (Annexure-S.A.-1 to the supplementary counter affidavit). It is further stated that petitioner filed his renewal application on 09.07.2001 which should have been supported by approved mines plan in which the petitioner failed. The petitioner did not have any duly approved mining plan between the period 09.07.2002 to 08.12.2005. It is further stated that the environmental limit is for the dispatches made from the lease hold area and does not differentiate the limit for production from the mines and dispatch. The beneficiation and processing including production of ROM from the mines is to be within the sanctioned limit of Environmental Clearance in which the petitioner has failed. Thus, his reply dated 20.08.2015 was not accepted. The same issue came before the IBM and show-cause notice was issued to the petitioner on 18.11.2011 (Annexure-S.A.-4 to the supplementary counter affidavit).
24. It is submitted that under the scheme of Amendment Act, 2015 specifically provisions of section 8A and the judgment rendered by the Apex Court in the case of Common Cause (Supra), the State Government is required to examine inter- alia whether the following conditions has been satisfied by the lessee before grant of extension of the mining lease, (i) lessee should have made a valid application before 12.01.2015 i.e. coming into force of Amendment Act, 2015, (ii) there has been no rejection of the renewal application before 12.01.2015 by the State Government, (iii) that postulated statutory compliances / clearances have been obtained by the lessee, (iv) that all the terms and conditions of the lease have been complied with by the lessee, (v) that in terms of section 8A(9), there has been no
(a) determination of lease, (b) termination of lease, (c) or that the lease has not been declared as lapsed by the State Government.
18
25. It is submitted on behalf of the State that on reading of the judgment rendered by the Apex Court in the case of Common Cause (Supra) and relevant paragraphs such as para-27 of the judgment, it is beyond doubt that the benefit of extension of the lease period under section 8A of the M.M.D.R. Act is available subject to a further overriding condition, namely "that all the terms and conditions of the lease have been complied with". A leaseholder who does not satisfy any of the required conditions of the lease, as for instance, the postulated clearances / approvals / consent would not be entitled to the benefits extended under sub- section (5) or (6) of Section 8A of the Amended M.M.D.R. Act.
26. Learned A.A.G. Mr. Ajit Kumar submits that it logically flows therefrom that the State Government being the lessor is obliged in law to see whether all the terms and conditions of the lease have been complied with by any such lessee claiming extension and that all postulated clearances have been obtained by it. By referring to the provisions of section 4A, 5 and 6 and section 10A and 11 of the Amendment Act, 2015, it is submitted that the role and authority of the State Government in the matters of grant or termination including extension of lease, has to be clearly understood in the context of the different provisions of the M.M.D.R. Act. Section 8A therefore cannot be read in isolation to submit that the amendment made under Act of 2015 has completely denuded the State Government of its powers in respect of deemed extension of the lease period. Learned counsel for the State has placed much emphasis on the meaning of the 'subject to' clause under section 8A(5) and 8A(6) of the Amendment Act. Reliance has been placed upon the judgment rendered by the Apex Court in the case of K.R.C.S. Balakrishna Chetty & Sons & Co. Versus The State of Madras [AIR 1961 SC 1152 also see (1961) 2 SCR 736] on the proposition that the benefit of extension provided under the amended Act is clearly contingent upon the compliance of the terms and conditions of the lease. In absence whereof, petitioner cannot claim an automatic extension of the lease period. The following judgments in support of the aforesaid proposition, has also been relied upon. 19 [Chandavarkar Sita Ratna Rao Versus Ashalata S. Guram (1986) 4 SCC 447, para-68 and Union of India and others versus Brigadier P.S. Gill (2012) 4 SCC 463 para-22].
27. Learned counsel for the State has also dealt with the difference in the legal connotation of the expression 'renewal' and 'extension'. Reliance has been placed upon the judgment rendered by the Apex Court in the case of Provesh Chandra Dalui and another versus Biswanath Banerjee and another [(1989) Supp. 1 SCC 487 para-10 and 11] as also in the case of State of U.P. and others versus Lalji Tandon (Dead) through LRs. [(2004) 1 SCC 1]. It is submitted that though, the term 'extension' may not require execution of a fresh lease, in case of a renewal, the option is to be exercised by the lessee to be decided by the lessor by exercise of its discretion in a rationale and objective manner as per the law prevailing at the time. However, the concept of deemed extension referred to in section 8A(5) and 8A(6) of the Amendment Act, 2015 cannot mean automatic extension as they are subject to compliance of the terms and conditions of the lease. The State Government therefore being the lessor, is fully entitled to examine the compliances made before any such benefit of extension is given to a lessee under the said provision. Reliance has been placed on the judgment rendered by the Apex Court in the case of Kanai Lal Sur versus Paramnidhi Sadhukhan [AIR 1957 SC 907 para-6 thereof] that the words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act, whilst the other construction is likely to assist the achievement of the said policy, then the Courts would prefer to adopt the latter construction. It is only in such cases that it becomes relevant to consider the mischief and defect which the Act purports to remedy and correct. The Legislature could not have envisaged such a situation also to give uncontrolled benefit of 20 extension to such lessee who have violated the statutory requirements or have failed to comply with the terms and conditions of the lease.
28. Learned A.A.G for the State has produced the guidelines / instruction relating to grant of extension by the State of Chhatisgarh under the Amendment Act, 2015. He has placed the contents of letter dated 19.05.2015 of the Mineral Resources Department, Government of Chhatisgarh addressed to all the Collectors of various districts of Chhatisgarh and the form of amendment agreement for extension of the mining lease to be entered into between the State Government and such lessee. It also prescribes a check list containing certain particulars relating to the lease in question as also conditions relating to the compliances to be undertaken under the M.C.R. And M.C.D.R. which are to be examined at the time of execution of the Agreement for extension of period of mining lease.
29. It would also be not out of place to mention that the documents relating to extension of mining leases under the amended provisions of Section 8A by the Government of Rajasthan, have been produced by the counsel for the petitioner in the connected case WPC No. 2207/2016 which is dated 10.02.2015. The contents of the guidelines / letters of the State Government of Chhatisgarh and Rajasthan shall be referred to in the later paragraphs of this judgment. Learned counsel for the State has also responded to the contention of the counsel for the petitioner relying upon the interim order passed in the case of Thakur Prasad Sao versus Union of India through Ministry of Mines & others in WPC No. 2722/2015 and analogous cases on 29.04.2016. It is submitted on his part that though such an interim order has not been challenged by the State Government in any forum or before the learned Division Bench of this Court, but the order being interim in nature and the lessee having been granted six months time to obtain statutory clearances / ensure compliances, the legal issue is still open to be addressed at the appropriate time when such matter is finally decided. Petitioner therefore cannot claim any benefit of the interim orders passed in the said case. Submissions of Learned ASGI Mr. Rajiv Sinha on behalf of Union of India 21
30. A counter affidavit has been filed on behalf of Union of India through Ministry of Mines, Government of India as well. Learned ASGI has taken preliminary objection to the maintainability of the writ petition on the availability of the revisional remedy before the Central Government Mining Tribunal under section 30 of M.M.D.R. Act. He submits that issues relating to the compliances on the part of the lessee of the statutory clearances and terms and conditions of leases are questions of fact which can be looked into by the statutory forum where other aggrieved lessees also have gone in revision against such orders passed by the State Government.
31. The Union of India in its affidavit has taken the stand that the lessee cannot claim automatic extension of the lease under the provisions of section 8A(5) and 8A(6) of the Amendment Act, 2015. He relies upon the 'subject to' clauses under the aforesaid provisions also in order to support the submissions. He has also relied upon the judgment rendered by the Apex Court in the case of K.R.C.S. Balakrishna Chetty (Supra) referred to earlier also by the counsel for the State. Reliance has been also placed upon a judgment in the case of The South India Corporation (P) versus The Secretary, Board of Revenue, Trivandrum & Another [1964 SCR 280]. It is submitted that the State Government is empowered to examine whether the terms and conditions of the lease have been complied with by any such lessee before the extension under the provisions of Section 8A(5) or 8A(6) is granted. He has however also taken the Court to the objects and reasons behind the Amendment Act, 2015. He submits that the Central Government in order to resolve the plight of the mining industry and pendency of the renewal application before the State Government for longer periods, has enacted the Amendment Act., but the benefit of extension / deemed extension cannot be construed to operate automatically without lessee conforming to the terms and conditions of the lease and also obtaining the necessary postulated clearances. He has referred to the various paragraphs of the judgment rendered by the Apex Court in the case of Common Cause (Supra) including paragraph-27 22 where it has been observed that such benefit of extension can only be available to a lessee who has been able to obtain statutory clearances and complied with the terms and conditions of the lease. Learned ASGI when posed with the question relating to the application of the amended provisions by different State Government, has not brought to notice any specific direction or orders / guidelines issued by the Central Government under section 24 of the Amendment Act, 2015 in the matter of giving effect to the amended provisions of section 8A(5) or 8A(6) of the M.M.D.R. Act. He has also relied upon the judgment rendered by the Apex Court in the case of Union of India and others versus Brigadier P.S. Gill [(2012) 4 SCC 463].
WPC No. 2207/2016
32. It is the case of the petitioner that the mining lease of Iron ore was granted in favour of Sardar Fauja Singh over an area of 22.662 hectares in Mauza Balijore, Bandburu P.S. Noamundi in the district of West Singhbhum on 01.05.1972 for a period of 30 years till 30.04.2002 (Annexure-1). Lease was thereafter transferred in favour of the present petitioner on 14.07.1983 (Annexure-2). Petitioner surrendered about 3.331 hectares of area on 11.06.1997. Before expiry of statutory time of one year, petitioner applied for renewal of lease for the period of 20 years on 18.04.2001 for an area of 19.331 hectares (Annexure-4). This application remained pending since then till Amendment Act, 2015 came into force with effect from 12.01.2015.
33. Petitioner's application for renewal of lease has been rejected vide impugned order dated 01.04.2016 bearing memo no. 883/M (Annexure-18) passed by the Department of Mines and Geology, Government of Jharkhand. Consequent thereupon, petitioner has been asked to handover the possession of the lease area to Mines Department vide letter no. 446/M dated 05.04.2016 (Annexure-19) issued by the Deputy Commissioner, West Singhbhum, Chaibasa, also impugned herein, failing which steps would be taken to take possession of the lease hold property by the State authorities. On 18.04.2016 such lease area has been made 23 open for public auction by Notification issued by the District Mining Officer, Chaibasa.
34. Learned counsel for the petitioner submitted that all statutory clearances has been obtained by the petitioner; environmental clearances has been granted on 13.04.2011 by the Ministry of Environmental and Forest vide Annexure-9 whereas the Department has granted temporary working permission on 06.02.2004 (Annexure-10); forest clearance has been granted on 03.08.2009 (Annexure-10/1); petitioner has also obtained certification of competent authority under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 on 15.02.2012 and 20.01.2014 (Annexures-11 and 11/1). Jharkhand State Pollution Control Board has also granted Consent to Operate (CTO) on 27.02.2015 vide Annexure-12 which has expired on 31.12.2015. Petitioner has already made an application on 29.08.2015, 120 days before expiry of CTO, as per the provisions of Section 21 of Air ((Prevention and Control of Pollution) Act, 1981 as also under section 25 of Water (Prevention and Control of Pollution Act), 1974. Petitioner has obtained first mining plan on 06.08.1993 and second mining plan on 25.10.2004 (Annexure-6 and 6/1). Petitioner was granted mining plan and mining scheme on 16.04.2010 (Annexure-7). Petitioner has applied for mining plan and scheme on 21.08.2015 (Annexure-8/1). Learned counsel for the petitioner has sought to controvert the allegations contained in the order of rejection dated 01.04.2016 relating to alleged violation of terms and conditions of lease and non-compliance of provisions of lease deed. In respect of allegation relating to delay in obtaining clearances such as, forest clearance, environmental clearance, mining plan, it has been stated that these clearances were obtained and only thereafter, mining activity was resumed from 02.04.2013 and no mining was carried out till clearances were obtained.
35. It is contended that grounds and assertions made in his reply to the notice dated 31.07.2015, has not been considered in an objective and proper manner. It is further submitted that the allegation relating to exploration in violation of the 24 Ministry of Mines Letter No. F. No. 10/75/2008-MV issued under Rule 27(3) of M.C.R., 1960, is not warranted against the petitioner since the State has not executed a fresh lease deed for continuation of exploration, as per Central Government letter dated 23.12.2010, rather exploration was done and data was provided to I.B.M, description of which are contained at page-262-274 and 303- 304 of the writ petition. The allegation relating to violation of Rule 28/28A of M.C.R., 1960 has been also replied by relying upon the judgment rendered by the Apex Court in the case of Common Cause (Supra) dated 04.04.2016, stating that no proceeding under Rule 28 and 28A of M.C.R., 1960 was ever initiated and the lease was never declared to have lapsed prior to 01.04.2016. In respect of violation alleged in terms of clause 2, 3, 11C of Form-K (Lease Deed), it has been stated that the petitioner has complied the same. The Inspection Report of Task Force Team dated 14.02.2014 has been referred to which shows compliance of these violations. (page 307 of the writ petition). So far as observations of Justice M.B. Shah Commission alleged in the impugned order is concerned, petitioner has contended that there was no delay in obtaining environmental clearances as he had applied well within time on 12.12.2006. Petitioner has not undertaken mining outside the lease area as alleged, which is also confirmed by the DGMS Report. The Inspection Report dated 14.02.2014 at page 307 states that no illegal mining operation was observed in the lease area. So far as difference in monthly return figure of lessee in IBM and DGMS is concerned, it is stated that there are no difference in calculation as the figures of IBM do not pertain to the same period. Petitioner contends that royalty has been paid on the higher quantity of extracted ore.
Legal Submission on behalf of the petitioner in WPC 2207/2016
36. Submission of the petitioner have been largely based upon the judgment rendered by the Apex Court in the case of Common Cause (Supra) dated 04.04.2016 on the interpretation of Amendment Act, 2015, particularly the scope of Section 8A.
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37. Learned counsel for the petitioner Mr. Indrajit Sinha has also taken this Court to the scheme of the M.M.D.R. Act, 1957 and the M.M.D.R. (Amendment) Act, 2015 including the un-amended and amended provisions of Section 8 and 8A. He has adopted the legal submission made by Learned Senior Counsel Mr. Amarendra Sharan in WPC No. 2027/20. However, in addition thereto, learned counsel for the petitioner has made the following submissions:
It is submitted that in the backdrop of the judgment rendered by the Apex Court on the scope of Section 8(3) of un-amended M.M.D.R. Act, in the case of Goa Foundation versus Union of India [(2014) 6 SCC 590 dated 21.04.2014 that an 'Express Order' is mandatory for leases awaiting second and subsequent renewal under section 8(3), that the (Amendment) Act, 2015 was enacted which is a significant transition in the regime of allocation of mineral resources. Allocation of mineral resources is now to be held only through auction by competitive bidding. Section 8A (Amended) applies to minerals other than those specified in Part-A and Part-B of the First Schedule (Part-A: Hydrocarbons / Energy minerals, Part-B: Atomic Minerals). The period of mining lease has been increased to 50 years. Section 8A(3) has been inserted for extending the period of lease granted prior to commencement of the Amendment Act for period of 50 years. Section 8A(5) & 8A(6) have been inserted for effecting transition in respect of mining leases granted prior to the Amendment Act, 2015 for captive / non-captive purposes. Section 9B and 9C deal with the creation of District Mineral Foundation by the State Government and establishment of National Mineral Exploration Trust by the Central Government. Section 10A of Amendment Act provides for "Procedure for obtaining Prospective Licences for Mining Leases in respect of the land in which minerals vest in the Government" for dealing with applications which are yet to fructify into a mining lease.
38. Under section 8A of the Amendment Act, 2015, though process of renewal has been completely done away with, but the lease has been extended in favour of 26 renewal applicant whose application for renewal validly made before 12.01.2015 was pending.
39. Learned counsel for the petitioner has also elucidated on the objects and reasons of the Amendment Act, 2015 and sought to rely upon the documents obtained under the R.T.I. Act, 2005 in the nature of note to the Cabinet dated 04.01.2015. According to the petitioner, amendment was necessitated in view of a virtual halt in the matter of disposal of renewal application due to inordinate delay by the State Government which had led to closure of several mines. Therefore, an urgent corrective measure was felt necessary to revive the mining sector in the country. Domestic production of Iron ore had fallen from 218 million tonnes in 2009-10 to 152 million tonnes in 2013-14. Section 8A was inserted as the State Government had no facility or potential to comply with the order. The regime of grant of mining leases and their renewals therefore needed a change by introducing uniformity in the process. The objects and reasons of the Amendment Act, 2015 relate to the past litigation resulting in different interpretation of the provisions of the M.M.D.R. Act and the alleged hardship caused to the mining sector due to second and subsequent renewal pending with the State Government without any decision. The amendment therefore sought to remedy the grievances of the mining industry and is a beneficial piece of Legislation.
40. Learned counsel for the petitioner has profusely relied upon Para-32(iv) (v) & (vi) of the judgment rendered in the case of Common Cause (Supra). The provisions under section 8A(3) / (5) / (6) of the Amendment Act have been placed with emphasis in support of the submission that it is a transitory provision for smooth transition between change in two regimes. It is submitted that the transitory provisions are to be construed to effect such continuity, as envisaged by the provision and not so as to create a lacuna. In support thereof, reliance has been placed on the judgment rendered by the Apex Court in the case of KS. Paripoornan Versus State of Kerala & others [(1994) 5 SCC 593, page-637] where the opinion of the learned Author Francis Bennion on statutory 27 interpretation has been quoted. Counsel for the petitioner has submitted that from the insight into the judgment rendered in the case of Goa Foundation (Supra), Parliamentary intent evident from the Amendment Act would show that the focus and emphasis is on regulating the mining operations and not prohibit / ban it, so as to ensure continuity in operation without hiatus. Learned counsel has also placed a communication addressed by the Central Government to the State Governments on 05.02.2015 (Annexure-B to the counter affidavit) after coming into force of Mines and Minerals (Amendment) Ordinance, 2015 with effect from 12.01.2015 whereunder the State Governments were directed to implement the provisions of the Ordinance in right way and take action to implement the transitory provisions of the Ordinance.
41. It is submitted that the petitioner's case could be covered solely under the provisions of Section 8A(3) of the M.M.D.R. Act as it is a case of first renewal and grant of lease to the petitioner shall be deemed to have been granted for 50 years from the date of grant. This Sub-section does not provide any further requirement. Section 8A(6) of the M.M.D.R. Act, on the other hand, extends the period of mining lease for the applicable period mentioned therein. The impugned action of the State Government to deny the benefit of grant of 50 years or automatic statutory extension under section 8A(6), is therefore illegal.
42. Learned counsel for the petitioner has sought to convey the distinction between the legal connotation 'extension' and 'renewal'. In this connection, he has relied upon the judgments in the case of Provash Chandra Dalui and another versus Biswanath Banerjee and another [1989 Supp (1) SCC 487, para-14 thereof], State of U.P. and others versus Lalji Tandon (Dead) through LRs. [(2004) 1 SCC 1], Gajraj Singh and others versus State Transport Appellate Tribunal and others [(1997) 1 SCC 650] and State of West Bengal and others versus Calcutta Mineral Supply Company Private Limited and another [(2015) 8 SCC 655]. He has referred to the other provisions of M.M.D.R. Act, un- amended as well as amendments introduced in the year 2015. The submission 28 is that the Parliament whenever considered it necessary has given a definite role, power and jurisdiction to the State Government such as in section 4A, 10, 10-A(2)
(b). Under section 10-A, all applications received prior to date of Amendment Act, 2015 have been rendered ineligible, but without prejudice to sub-section (1); under sub-section (2), Parliament has laid down that such application shall remain eligible on and from the date of commencement of the Amendment Act, 2015 where reconnaissance permit or prospecting licence has been granted in respect of any land for any mineral. However, such right for obtaining prospecting licence followed by a mining lease in respect of that mineral, could only be considered if the State Government is satisfied that the permit holder or the licencee has fulfilled the conditions enumerated at clause (i) to (iv). It is submitted that silence on the jurisdiction of the State Government under section 8A, is therefore eloquent. Parliament in its wisdom has, while changing the regime of renewals, removed the jurisdiction of the State Government, so far as the power to grant extension or its rejection are concerned. In support of his submission, learned counsel has relied upon the judgment in the case of Sandur Manganese And Iron Ores Limited versus State of Karnataka and others [(2010) 13 SCC 1].
43. Referring to the provisions under section 8A(5) / 8A(6) specifically 'subject to' clause, it is submitted that it does not make reference to violation, rather the term used is 'compliance'. In the scheme of M.M.D.R. Act and M.C.R., failure to remedy the breach alleged within the time stipulated, will amount to non- compliance of the lease condition. No notice requiring the petitioner to remedy any breach, has ever been issued. Consequences of violation of other legal provisions has to be dealt under the concerned statute such a Forest Conservation Act, 1980, Environment Protection Act, 1986, etc. It is submitted that para-27 of the Common Cause (Supra) judgment has to be understood in the context of the facts stated at para-1 to 4 of the said judgment. It cannot be lost sight of that the judgment dated 04.04.2016 in Common Cause (Supra), came to be passed on various applications made by mining lessee seeking revocation of the suspension 29 of the earlier order dated 16.05.2014 passed in the same writ petition. The State Government is merely a delegatee of the Parliament and acts within the confines of the Act and Rules. It does not exercise any inherent power. Learned counsel for the petitioner also submits that such a power cannot be read into the provisions of Section 8A(5) or 8A(6) as it would be wholly uncanalized without any guidelines laid thereunder. Even a flimsy ground of breach of any terms and conditions of the lease, would be made a basis for denial of extension on the part of the State Government. This would amount to deny the whole aim and purpose of the Amendment Act itself. Learned counsel for the petitioner has also referred to a situation where the period of renewal of lease extends beyond 12.01.2015, i.e. the cut-off date, in that case also the State Government would have the authority to look into the compliances of terms and conditions of the lease and deny the benefit of deemed extension up to the farthest period as guaranteed under the said provisions. The interpretation of any such provision therefore has to be on well settled cannons of interpretation which uniformly apply to all situations.
44. Learned counsel for the petitioner submits that if the view of the State Government is accepted, it would amount to forfeiture of the lease of the petitioner in teeth of the deeming provision under section 8A without following the procedure prescribed by law i.e. under Rule 27(5) of M.C.R. He submits that the State Government like the Central Government being a delegate of the Parliament, is not denuded of its statutory powers available under the M.M.D.R. Act and M.C.R., 1960 or M.C.R.D., 1988 which are to be exercised in accordance with law and as per the procedure prescribed. In case of any breach of terms and conditions of the lease or failure to comply it, the State Government in exercise of powers under section 27(5) of the M.C.R. is obliged to issue notices giving a period of 60 days for remedying the breach and only on failure thereof, can proceed to determine the lease. Apart from that, M.C.D.R. provides that all mining operations are to be done as per the mining plan sanctioned by the IBM which is authorized to regularly oversee the work of the mines as per the mining plan. Similarly, 30 various authorities under the Environmental Protection Act, 1986, State Pollution Control Board under the provisions of Air and Water (Prevention and Control of Pollution) Act are empowered not only to issue the statutory form and certificates of compliances of conditions by the lessee, but also to take decision in respect of any violations thereof.
45. The impugned order however does not contain any findings as to any such action taken by either Indian Bureau of Mines or various other authorities under the Forest Conservation Act, Environment Protection Act, 1986 or by State Pollution Control Board.
46. It is submitted that the provisions of such Acts have to be made workable. At the same time, no one can be allowed to take the benefit of deemed extension without obtaining the statutory clearances / compliances and also complying with the terms and conditions of the lease. The State Government being the lessor, on failure of a lessee to satisfy the postulated clearances / compliances and the terms and conditions of the lease, may direct stoppage of the mining operations, while granting reasonable time for obtaining the statutory clearances and comply with the terms and conditions of the lease. On failure to do so, it is always open for the State Government to take action for determination of the lease in terms of Rule 27(5) of M.C.R., 1960. However, the State Government instead of resorting to the powers conferred under the M.M.D.R Act and Rules for taking the contemplated action permitted thereunder, cannot resort to rejection of renewal application in the manner it has been done to deny extension to such lessee in teeth of the provisions of Section 8A(5) and 8A(6) of the M.M.D.R. Act by relying upon the 'subject to' clause contained therein. Learned counsel for the petitioner has submitted that except for two mining lessees whose leases have been extended till 12.01.2015, applications for renewal of mining leases have been rejected in the case of other 22 Iron ore lessees similarly in an arbitrary and illegal manner. Learned counsel for the petitioner has referred to different approaches adopted by different State Governments such as that of State of Chhatisgarh and Rajasthan. It is submitted 31 that in the State of Rajasthan, leases have been extended in terms of section 8A (5) and 8A (6) of the Amendment Act without any such resort to refusal of renewal application under the 'subject to' clause. One such letter dated 10.02.2015 of the Joint Secretary, Mines Department, Government of Rajasthan to the Director, Mines and Geology Department Udaipur, Rajasthan have been placed which also encloses a Form-A containing the recital of extension of leases. Learned counsel in support of his submissions on different proposition of law, relied on the following judgments.
i. Balram Kumawat versus Union of India and others [(2003) 7 SCC 628], para-25 and 27 thereof] ii.Jagmittar Sain Bhagat and others versus Director, Health Services, Haryana and others [(2013) 10 SCC 136] iii.Indian Performing Rights Society Limited versus Sanjay Dalia and another [(2015) 10 SCC 161] iv. K.B. Nagur, M.D. (Ayu.) versus Union of India [AIR 2012 SC 1774 also see (2012) 4 SCC 483] v. Kalabharti Advertising versus Hemant Vimalnath Narichania and others [AIR 2010 SC 3745, also see (2010) 9 SCC 437] Rebuttal of the State Government:
47. The grant of original lease to Sardar Fauja Singh; its transfer to the petitioner and surrender of 3.331 hectares by him, has not been disputed by the State. It is however stated that petitioner never submitted any modified mining plan for the rest of the area i.e. 19.331 hectares and continued mining on the basis of previously approved mining plan which is violative of the rules. It is further stated that petitioner's firm applied for first renewal on 18.04.2001 over 19.331 hectares (Annexure-4). Out of 19.331 hectares of the forest land, temporary working permission was granted for nine months by the Ministry of Environment and Forest (MoEF) for mining in 8.242 hectares of broken up area vide letter dated 06.02.2004. Subsequently, only in the year 2009, forest clearance was granted to 32 the petitioner vide letter dated 03.08.2009 but the petitioner continued its mining operation in violation of Forest Conservation Act, 1980 and the conditions imposed by the MoEF.
48. It is further stated that as per Indian Bureau of Mines (IBM) letter dated 25.10.2004, forest clearance had to be obtained by the petitioner and was to be submitted to IBM. This instruction was also not complied by the petitioner. The Scheme of Mining and Systematic Mine Closure of land was approved by IBM on 16.04.2010 with certain conditions (Annexure-7). That MoEF gave environmental clearance on 13.04.2011 for raising from 39000 to 74000 tonnes under specific conditions, but the petitioner has failed to comply the conditions. In terms of aforesaid letter dated 13.04.2011 regarding environmental clearance, Consent to Operate (CTO) was to be taken immediately after 13.04.2011 for starting production which the lessee failed to obtain and continued its mining and production violating the statutory conditions as laid for the grant of environmental clearance. The petitioner while violating the conditions for the first time, has taken CTO on 25.03.2013 for a period 25.03.2013 to 31.12.2013, for the second time on 27.03.2014 for a period of 01.01.2014 to 31.12.2014 and third CTO on 27.02.2015 for the period 01.01.2015 to 31.12.2015 (Annexure-A series). It is further stated that the superimposed output in the form of soft copy and hard copy should be submitted along with the mining plan, scheme. This too has not been complied by the petitioner.
49. It is further stated that the Justice M.B. Shah Commission report on Jharkhand submitted on 14.10.2013 shows that the petitioner continued its mining and production violating the statutory conditions. Accordingly, Department issued show-cause notice on 15.06.2015 and 31.07.2015 (Annexure-14).
50. The sequence of events leading to the report of the Technical Sub Committee on inspection of the leases and its report (Annexure-H) are same as stated in connected writ petition i.e. WPC 2027/2016. The Department of Mines and Geology thereafter summarized all the violations mentioned against the 33 petitioner by different agencies and issued show cause notice to the petitioner on 31.07.2015 (Annexure-I), to which the petitioner submitted its reply on 20.08.2015 with a prayer for extension of lease period under the amended M.M.D.R. Act. After hearing the petitioner, the committee in its report concluded that the petitioner has violated certain terms and conditions of the lease deed and did not find it eligible for extension. It observed that the administrative department can take appropriate actions if all the terms and conditions are satisfied. However, the case of the petitioner was not fit for extension as all the terms and conditions were not satisfied. (Annexure-J). Accordingly, application dated 29.06.2015 and 20.08.2015 filed by the petitioner were rejected. Thereafter, Deputy Commissioner, Chaibasa issued a letter dated 05.04.2016 asking the petitioner to surrender the possession of the land in favour of the State Government. (Annexure-K) When the petitioner did not surrender, possession was taken by publically beating the drum on 06.04.2016 by Assistant Mining Officer. Publication about the vacant lease hold land for further mineral concession was published in Jharkhand Gazette vide Notification no. 257 dated 20.04.2016 (Annexure-L). Thereafter, petitioner by letter dated 06.04.2016 sought permission from the Government seeking six months time for removing properties from the lease hold area (Annexure-M). It is further informed that the petitioner was also found engaged in illegal transportation of ore and theft of ore from the leasehold area of M/s TISCO on 10.09.2003 and a case under section 379/411 IPC was also registered against him which is pending. Petitioner also preferred a Criminal Revision No. 686/2004 before this Court for quashing of the entire criminal proceeding against him and the same was also dismissed vide order dated 10.01.2013 (Annexure-N).
51. It is further stated that the renewal application of the petitioner could not be granted in the absence of papers mentioned in the letter no. 883 / M dated 01.04.2016 which is under challenge.
34
52. It is stated that as per the letter of IBM bearing no. CAL/SB/FE/MP-249 dated 06.08.1993, approval was conditional. The petitioner has not informed the same in the IBM office. Further, the petitioner surrendered 3.331 hectares area on 11.06.1997, but the modified mining plan for the rest area of 19.331 hectares was not submitted. It is further informed that the Forest Department has recently issued guidelines for mining in the Saranda Forest vide letter dated 13.07.2015 (Annexure-R). It is also stated that the Circular No. 2 of 2010 dated 06.04.2010 of Indian Bureau of Mines also stipulates certain conditions which the petitioner also violated (Annexure-T). It is further stated that the petitioner has not carried out any mining activities between November 2004 to August 2009. Upon this, the DMO has issued a show cause notice to the petitioner vide letter dated 10.03.2015 (Annexure-U). Therefore, it is apparent from the return filed by the petitioner that he has violated the rule of Jharkhand Mineral Dealer's Rule, 2007 (Annexure-V). WPC 2515/2016 Petitioner's case:- Facts:
53. Petitioner's predecessor in-interest was granted mining lease of Iron Ore over an area of 41.639 Hectares in village Rajabera of District West Singhbhum on 29th February, 1988 (Annexure-1) for a period of 20 years effective from 29 th February 1988 till 28th February 2008. Lease was transferred with the permission of the State Government in favour of the present petitioner on 2 nd March, 1997 (Annexure-2). Before expiry of the statutory period of 12 months prior to expiry of lease, he made an application for renewal on 23rd February, 2007. The application for renewal remained pending. In the meantime, a show-cause was issued upon the lessee on 15th June, 2015 (Annexure-9). Petitioner replied to the show-cause notice on 29th June, 2015 (Annexure-10). A second show-cause notice was also furnished on 31st July, 2015 (Annexure-11) to which he submitted his reply on 19 th August, 2015. Inter Departmental Committee constituted by the State Government heard the petitioner on 24.08.2015 and finally by the impugned order dated 1st April, 2016 bearing memo no.884/M (Annexure-13) the application for extension of the 35 lease has been rejected. Petitioner has approached this Court against the said order of rejection. He has also questioned the constitution of Inter Departmental Committee vide notification dated 9.6.2015 as beyond the power conferred upon the State Government by the MMDR Act, 1957 (Section 26(2) and Section 28(3) MMDR Act). Petitioner has also prayed for declaration that the mining lease granted on 29th February, 1988 should be deemed to have been granted for a period of 50 years w.e.f. the said date in terms of Section 8A(3) of the Mines and Minerals (Development and Regulation) Amendment Act, 2015. Petitioner has also made a prayer for quashing the show-cause notice and for setting aside the notification bearing no.257 dated 18th April, 2016 published in the official gazette on 20th April, 2016 by which the mines of the petitioner has been notified for auction in terms of Mineral (Auction) Rules, 2015.
54. Learned counsel for the petitioner, at the outset, submits that mining lease was not under operation since 2011. He further submits that the approval of the mining plan has been issued lastly on 23rd April 2015 vide Annexure-A-5/1 with validity up to 31st March, 2018. The application for environmental clearance made on 22nd June, 2015 (Annexure-6) is still pending. He has made an application for grant of consent to operate from Jharkhand State Pollution Control Board which has remained pending for want of environmental clearance. These statutory clearances are required to be obtained by the petitioner.
55. Learned counsel for the petitioner submits that out of 41.639 Hectares of the leasehold land, only 4.672 Hectares is reported to be a Jangal-Jhari and therefore deemed to be forest land. No mining operation has been carried out in the said area. It is also pointed out that in the 1 st and 2nd show-cause notices, no such ground was taken, rather the Government of Jharkhand has stated that the leasehold area is a non-forest area. However, the petitioner, if required, would obtain forest clearance and would not undertake to work on forest area without obtaining the statutory clearance. It is further stated that up to date royalty clearance certificate dated 13th April, 2014 has been issued by the District Mining 36 Officer and the same was submitted along with its reply. Petitioner contends that allegation relating to violation of Ministry of Mines' letter no.F.No.10/75 /2008- MV issued under Rule 27(3) of Mineral Concession Rules, 1960 regarding mineral exploration was never made in the show-cause notice. However, exploration has been done and it forms part of the mining scheme which was approved by the Indian Bureau of Mines. Counsel for the petitioner contends that in view of the judgment rendered by the Apex Court in the case of Common Cause vs. Union of India dated 4th April, 2016, the allegation relating to violation of Rule 28/28A of Mineral Concession Rules, 1960 relating to lapse of mining lease are no longer available to be taken as there is no such order or declaration by the State Government before 12th January, 2015. In respect of the allegation relating to violation of the terms and conditions of the lease deed, it is submitted that no dues certificate has been submitted on 24th May, 2015. The demand of surface rent has been quashed by this Court and the matter is pending in appeal before the Hon'ble Supreme Court of India. Charges relating to excess mining are also subject matter of W.P.(C) No.1524/2013. In respect of the violation relating to para-2 of Part-VII of Form 'K', it is submitted that the Government approved surveyor namely Gem Surveyors has been issued work order to undertake survey which has also been concluded. Pillars, corner pillars and intermediate lease boundary pillars are already in place and discrepancy, if any, would be rectified. So far as allegation of violation of para-11(c) of Part-VII of Form 'K' is concerned, it is the subject matter of W.P.(C) No.1524/2013. Petitioner has questioned the demand as being without jurisdiction. Counsel for the petitioner has further pointed out in respect of allegation of violation of Para-18 of Part-VII of Form 'K' that the said allegations are unfounded. The lease is a non-captive lease and there is no restriction under law that the ore cannot be sold to one person. Therefore, there is no violation of any provision of the lease deed or the Mineral Concession Rules, 1960. In respect of violations observed by Justice M.B. Shah Commission on the aforesaid lease, it has been submitted that no mining operations have been carried out in 37 contravention of the Environment (Protection) Act, 1986. All mining operations have been stopped since 2011 for this reason only. Environmental clearance has already been applied for and terms of reference have already been granted. Only thereafter, the petitioner can carry the mining operation. It is stated that the allegations relating to difference in monthly return filed by lessee are vague. No details have been given in respect of as to in which monthly return, there was a difference in figures of IBM and DMG.
56. Learned counsel for the petitioner submits that the case of the petitioner being of first renewal and his application for renewal having been made before expiry of 12 months from the date of expiry of the lease, petitioner would be entitled to treat his lease as having been granted for a period of 50 years in terms of the provisions of Section 8A(3) of the Amendment Act, 2015 as held by the Hon'ble Supreme Court in the case of Common Cause vs. Union of India (Writ Petition (Civil) No. 194/2014) vide judgment dated 4th April, 2016. It is further submitted that the application for renewal of lease was not rejected before 12 th January, 2015 i.e. the date of coming into force of the Amendment Act, 2015 and no declaration of lapse of lease has been made. Therefore, petitioner is entitled to be treated as subsisting lessee as on 12.1.2015. Learned counsel for the petitioner further submits that in terms of the provisions of the amended Rule 24 A(6) of the Mineral Concession Rules, petitioner's lease would be treated to be subsisting for a period of two years from 18th July, 2014 up to 18th July, 2016 as there was no rejection of his application for renewal.
57. Having regard to the declaration of law rendered by the Apex Court in the case of Common Cause (supra) and the provisions of amended Rule 24A(6), the State Government was required to treat the mining lease of the petitioner as subsisting till 18th July 2016, more so, when neither the mining lease was terminated or declared as lapsed and when no rejection of its renewal application was made prior to coming into force of the Amendment (MMDR) Act, 2015 on 12th January, 2015. Petitioner submits that unless and until petitioner is treated to 38 be a subsisting lessee, the statutory clearance required to be obtained cannot be considered and granted by the respective statutory authorities.
58. So far as legal submissions are concerned, counsel for the petitioner Mr. Indrajit Sinha has reiterated the submissions made by him in WPC No. 2207/2016. Submission of the learned counsel for the State
59. Respondents in their counter affidavit have not refuted the assertion relating to grant of original mining leases and transfer thereafter in the name of the present petitioner on 02.03.1997. They also do not dispute that the application for first renewal was made on 23.02.2007 which, according to them, was pending for want to statutory clearances. Respondent however stated that the petitioner has carried out mining operations illegally during the pendency of the renewal application without obtaining all the statutory clearances, chart at Annexure-N is referred to in support thereof. It is further submitted that petitioner has continued its mining activity without obtaining environmental clearances. The highest production admissible to be produced till there was no enhancement under the deemed provision was the cut-off as in the year 1991-92 being 10572 tonnes for the petitioner. There has been excess production till 2012-13. Thereafter, a demand letter dated 30.05.2014 for Rs. 18,87,55,120.03 including interest from 1995-95 till date, was raised against the petitioner which has not been paid till date (Annexure-P). It is further submitted that till April 2015, demand was again raised vide letter dated 02.05.2015 for Rs. 20,80,89,320/- taking into account the previous unpaid dues (Annexure-P/1). Learned counsel for the State further submits that the Ministry of Mines circulated a letter dated 05.02.2015 requesting all the States to take prompt action in pursuance of section 8A(5) and 8A(6) (Annexure-A).
60. Respondents in their counter affidavit, have referred to the same chronology of facts relating to the findings rendered by the High Power Committee constituted by the Department of Cabinet Secretariat and Coordination vide letter dated 06.04.2015 (Annexure-D) and Inspection carried out by the 39 Technical Sub Committee in respect of the leases in question. The Report in prescribed format including that of the petitioner is Annexed as Annexure-H to the counter affidavit. The Department of Mines and Geology summarized the violations mentioned against the petitioner by different agencies and issued a show-cause notice on 31.07.2015 (Annexure-I). After consideration of the petitioner's reply and upon hearing him, the Committee submitted its report with a finding that the petitioner's case is not fit for extension. Accordingly, the application dated 29.06.2015 and 19.08.2015 filed by the petitioner were rejected by order dated 01.04.2016, impugned herein.
61. Counsel for the Respondent State submits that pursuant to the impugned order and upon failure of the petitioner to surrender possession of the leaseholder land in favour of the State Government, the Assistant Mining Officer, Chaibasa has taken possession of the leasehold area. The leasehold area has been made open for further mineral concession vide Gazette Notification contained at Annexure-L dated 18.04.2016 The State Government was well within its jurisdiction to constitute a Technical Sub Committee to inspect the mines of such lease holders. It is further submitted that the Mining Plan / Scheme of the petitioner was not prepared for the year 2008-09 and 2009-10, but the mining operation was carried out by the petitioner without Mining Plan in the year 2008-09 to 2009-10 (Annexure-N Chart). Petitioner has Discharge Consent Order and Emission Consent Order for the period 01.04.2006 and 30.04.2007 only. Learned counsel further submitted that mining operation in the leasehold area was closed during 2000-2001 to 2003-04 and from 2011 to till date without any information. It is also submitted that the petitioner has chosen to by-pass the statutory remedy of revision. For availing the benefit of extension of lease under the deeming provisions under section 8A of the M.M.D.R. Act, lessee was required to comply with the terms and conditions of the lease. State Government is entitled to ascertain whether the lessee had violated the terms and conditions of the lease or had not obtained the necessary statutory clearances. Rejection of the renewal 40 application in the face of the aforesaid facts is, therefore, proper in the eye of law as the State Government is the owner of the mines and minerals. Learned counsel for the State has also reiterated the legal submissions advanced in the connected cases.
62. Counsel for the petitioner in his rejoinder to the counter affidavit of the Respondent State, has reiterated the opening statement and submissions, as noticed in the foregoing paragraphs. It is submitted that the assertion made in the counter affidavit and the show-cause notice issued earlier, have been duly replied by the petitioner. It is submitted that the mining operations were suspended by the IBM through letter dated 18.12.2009, however after complying the conditions, it was revoked by letter dated 01.04.2010. It was duly intimated by the Deputy Commissioner, Chaibasa to the Assistant Mining Officer, Chaibasa through letter dated 26.04.2010. It is submitted that the State Government has never contested the enclosed proforma to the letter at Annexure-16 to the rejoinder. Petitioner contends that the alleged possession of the leasehold area by the Assistant Mining Officer, Chaibasa on 08.04.2016, cannot be treated as a valid mode of taking possession in the eye of law. It is stated that physical possession of mines is still with the petitioner. In fact, it has been admitted by the State Government that the petitioner has a right to remove its goods, machinery and excavated minerals within six months from the date of the termination of the lease. Therefore, letter dated 05.04.2016 for taking over possession, is bad in law.
Stand of the Union of India:
63. Counter affidavit of the Union of India contains their stand on the legal issues relating to the provisions of the amended Section 8A under the Amendment Act, 2015 as taken in other two connected writ petitions. It has also taken the plea of availability of alternative remedy of revision under section 30 of M.M.D.R. Act, 1957 before the Central Government Mining Tribunal.
64. Learned ASGI reiterates the legal submissions that a lessee does not have unconditional right to get extension and neither is the extension automatic, rather 41 it is subject to compliance of terms and conditions of mining leases. The Respondent Union of India in Para-22 of their affidavit have stated that Sections 8A(5) and 8A(6) contains transitional provisions of extending tenure of those mining leases whose applications for renewal are pending. However, the aforesaid sub-section starts with non obstante clause and provision under Sub-section (3) of Section 8A is qualified by the provision under Sub-section (5) & (6) which extends the period of tenure of mining leases till 31.03.2020 / 31.03.2030, subject to the condition that terms and conditions of the leases have been complied with. According to the Respondents, Sub-section 3 cannot be read in isolation and has to be read with the provisions of Sub-section 9 which also contains a non obstante clause.
Discussion:
65. I have considered the submissions of the parties in the light of the relevant material facts pleaded, provisions of law and judgments relied upon by them. The moot question which is required to be answered in the present batch of writ petitions is whether the State Government has the power to refuse extension of lease under the amended provisions of Sections 8A(5) and 8A(6) of M.M.D.R. Act, 2015? The ancillary question which arises is, whether the impugned orders rejecting the renewal application of the lessee / writ petitioners herein, are vulnerable to challenge on settled principles of judicial review of administrative action.
66. State Government is the owner of the mines [See: Monnet Ispat and Energy Limited Vs. Union of India (2012) 11 SCC 1]. It is also well settled that under the M.M.D.R. Act, by virtue of declaration made under section 2 thereof, Parliament has acquired complete dominion over the Legislative field covered by the State Legislature. The Act though does not denude the State of its ownership of minerals, but it tends to regulate to the extent set out in the provisions of the Act, development of mines and minerals in the State [See: State of Kerala and others versus M/s Kerala Rare Earth & Minerals Limited and others (JT 42 2016 (4) SC 143]. Both Central Government and the State Government act as mere delegates of the Parliament while exercising powers under the M.M.D.R. Act, 1957, M.C.R., 1960, M.C.D.R., 1988 and other Rules framed under the Act of 1957 [See: Quarry Owners' Association vs. State of Bihar & others (2000) 8 SCC 655]. M.M.D.R. Act and Rules framed thereunder are a complete code with respect to the grant and renewal of mining leases of the land belonging to the State Government. [See: State of Assam and others versus Om Prakash Mehta and others (1973) 1 SCC 584 para-12]. It is equally well true that the Executive Power of the State under Article 162 of the Constitution of India extends only in the matters with respect to which the Legislature of the State has the power to make laws. Therefore, the State is denuded of its power in regard to matters covered by the M.M.D.R. Act and Rules [See: Sandur Manganese and Iron Ores Limited versus State of Karnataka and others [(2010) 13 SCC 1], State of Orissa versus M.A. Tulloch and Co. [(1964) 4 SCR 461] & State of W.B. versus Kesoram Industries Ltd. And others (2004) 10 SCC 201]. Under the original section 8(3) introduced in 1957, Central Government was conferred the sole power to authorize renewal of mining leases. Thereafter, for the first time, vide amendment incorporated in 1999 in the M.M.D.R. Act, power to authorize renewal was vested with the State Government. Under the M.M.D.R. (Amendment) Act, 2015 brought into force with effect from 12.01.2015 specifically in relation to the minerals other than those specified in Part-A and Part-B of the first schedule, the concept of renewal of mining leases has been done away with. Amended Section 8(A) is quoted hereunder;
"8-A :-Period of grant of a mining lease for minerals other than coal, lignite and atomic minerals. (1) The provisions of this section shall apply to minerals other than those specified in Part A and Part B of the First Schedule (2) On and from the date of the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, all mining leases shall be granted for the period of fifty years.
(3) All mining leases granted before the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 shall be deemed to have been granted for a period of fifty years.43
(4) On the expiry of the lease period, the lease shall be put up for auction as per the procedure specified in this Act.
(5) Notwithstanding anything contained in sub-sections (2), (3) and sub- section (4), the period of lease granted before the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, where mineral is used for captive purpose, shall be extended and be deemed to have been extended up to a period ending on the 31st March, 2030 with effect from the date of expiry of the period of renewal last made or till the completion of renewal period, if any, or a period of fifty years from the date of grant of such lease, whichever is later, subject to the condition that all the terms and conditions of the lease have been complied with.
(6) Notwithstanding anything contained in sub-sections (2), (3) and sub- section (4), the period of lease granted before the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, where mineral is used for other than captive purpose, shall be extended and be deemed to have been extended up to a period ending on the 31s t March, 2020 with effect from the date of expiry of the period of renewal last made or till the completion of renewal period, if any, or a period of fifty years from the date of grant of such lease, whichever is later, subject to the condition that all the terms and conditions of the lease have been complied with.
(7) Any holder of a lease granted, where mineral is used for captive purpose, shall have the right of first refusal at the time of auction held for such lease after the expiry of the lease period. (8) Notwithstanding anything contained in this section, the period of mining leases, including existing mining leases, of Government companies or corporations shall be such as may be prescribed by the Central Government.
(9) The provisions of this section, notwithstanding anything contained therein, shall not apply to a mining lease granted before the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, for which renewal has been rejected, or which has been determined, or lapsed. "
Section 8A(3) provide that the period of lease granted before the Amendment Act, 2015 shall be deemed to have been granted for a period of 50 years. On expiry of the lease period, the lease shall be put up for auction, as per the procedure prescribed in the Act. There has been a clear and distinct change in the regime from pre-existing provisions under section 8 of the un-amended Act relating to renewal of mining lease whether be it first, second and subsequent renewals to that of the deemed extension under the amended provisions of section 8A of the M.M.D.R. Act, 2015.
67. In the aforesaid legal background, the interpretation of section 8A of the Amendment Act, 2015 is no longer res-integra. We are immensely benefitted by the authoritative pronouncement of the Hon'ble Supreme Court in the case of 44 Common Cause (Supra) in the Writ Petition No. 114/2014 vide judgment dated 04.04.2016 on the subject. It would only be contextual to take note that the instant judgment in the case of Common Cause (Supra) was rendered by the Apex Court on a number of applications filed by the lease holders seeking revocation of the order of suspension from carrying any mining operation by them. [Judgment dated 16.05.2015 reported in (2014) 14 SCC 155 [Common Cause versus Union of India and others]. By the said order, 102 mining lease holders were restrained from carrying on mining operations on account of the fact that none of these lease holders were in possession of statutory clearances / approval / consent required for carrying on mining operations. The Hon'ble Court granted liberty by the same order dated 16.05.2014 to the lease holders whose operations were suspended to move the Apex Court after obtaining the requisite clearances / approval / consent, whereupon, the Hon'ble Court on being satisfied, would revoke the suspension order. During course of such consideration on the application seeking revocation of the order of suspension, Learned Amicus Curiae Mr. A.D.N. Rao raised an issue that the question of granting permission to the lease holders to recommence the mining operations could arise only if the lease holders have subsisting mining leases. It was submitted that before determining the legitimacy of the claim raised by the applicants, the Apex court may first examine whether applicants have subsisting right to carry on mining operations under a valid mining lease. In the aforesaid background, the matter was argued taking into account the significant amendments incorporated in the M.M.D.R. Act, 1957 by the Amendment Act, 2015 with effect from 12.01.2015.
68. It would also not be out of context to refer to a little bit of the background preceding the Amendment Act, 2015, which were marked by significant pronouncements by the Apex Court in the matter of Goa Foundation versus Union of India and others [(2014) 6 SCC 590] and Common Cause (Supra). Goa Foundation filed a Public Interest Litigation on the basis of the findings in the report of Justice Shah Commission on the illegal mining in the State of Goa for 45 issuing directions to the Union of India and State of Goa to take steps for termination of mining leases of lessee involved in mining in violation of Forest Conservation Act, 1980, M.M.D.R. Act, 1957, M.C.R., 1960, Environment Protection Act, 1986, Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 as well as the Wild Life Protection Act, 1972. On 05.10.2012 the Apex Court issued notices in the matter and directed the Central Empowered Committee (in short 'CEC') to submit its report and also directed that till further orders, all mining operations in the leases identified in the Report of Justice Shah Commission and transport of Iron ore and Manganese from those leases, shall remain suspended. Lessee of the State of Goa and Goa Mineral Association filed writ petition in Bombay High Court at Goa Bench for a declaration that the Report of Justice Shah Commission is illegal and for quashing the findings in the report as also for quashing the order dated 10.09.2012 of the Government of Goa suspending the mining operations in the State of Goa and the order dated 14.09.2012 of the Ministry of Environment and Forest, Government of India directing that environmental clearances granted to the mines in the State of Goa be kept in abeyance. All these writ petitions were transferred to the Apex Court for hearing along with the Writ Petition (Civil) No. 435/2012 filed by the Goa Foundation. While dealing with the said matters in its judgment dated 21.04.2014, the Hon'ble Supreme Court held that renewal of lease in respect of a mineral not specified in Part-A and Part-B of first Schedule beyond the first renewal for a period of 20 years is conditional upon the State Government forming an opinion that it is in the interest of mineral development, that it is necessary to do so. Only upon recording reasons for such renewal that a mining lease in respect of such mineral such as Iron ore, would be granted beyond time specified in sub- section 8(2) in view of the clear and explicit language of section 8(3) of the M.M.D.R. Act, 1957 as it then stood. The Hon'ble Court held that this measure was incorporated in the Legislative Scheme as a safeguard against arbitrariness and the letter and spirit of the law must be adhered to in a strict 46 manner. While dealing with the said issue in relation to the provisions of Rule 24- A(6) of M.C.R., the Apex Court also held that this sub-rule cannot apply to a case under sub-section 3 of Section 8 of the M.M.D.R. Act because renewal under this provision cannot be made without express orders from the State Government recording reasons for renewal in the interest of mineral development. It was held that in other words, so long as there is a right of renewal in the lessee which in the case of a mining lease is for a maximum period of 20 years, the provisions regarding deemed extension of lease can operate. But if the right of renewal of a mining leases is dependent upon the State Government forming an opinion that in the interest of mineral development, it is necessary to do so for reasons recorded, such a provision regarding deemed extension, till orders are passed by the State Government on the application of renewal, cannot apply. It was accordingly held that sub-rule (6) of Rule 24-A of M.C.R will apply to a case of first renewal under sub-section (2) of section 8 of the M.M.D.R. Act other than a case covered under sub-rule (9) of Rule 24-A of the M.C.R., but will not apply to renewal under sub- section (3) of Section 8 of the M.M.D.R. Act. In the light of the aforesaid pronouncement rendered by the Apex Court in the case of Goa Foundation (Supra), while dealing with the matter relating to mining in the State of Orissa raised by the petitioner Common Cause through the Writ Petition No. 114/2014, the Apex Court held that the provision of deemed renewal under Rule 24-A(6) of the Mineral Concession Rules, 1960 is not available in the second and subsequent renewal of mining lessee considering the language of section 8(3) of M.M.D.R. Act, 1957. Hence, 26 lessees could not be allowed to operate until the State Government passes Express Orders in terms of section 8(3) of the Act of 1957 after it forms an opinion that in the interest of mineral development, it is necessary to renew the lease and after it records reasons for its renewal of lease.
69. The Apex Court as an interim measure directed that these 26 lessees operating in second and subsequent renewal without any Express Orders of renewal passed by the State Government will not be allowed to operate by the 47 State Government until Express Orders are passed in terms of Section 8(3) of M.M.D.R. Act, 1957. The Hon'ble Court accordingly directed that all renewal applications under section 8(3) of the M.M.D.R. Act, 1957 will be considered and disposed of by the State Government within six months from the date of the order i.e. 16.05.2014. The Apex Court by the same judgment taking into account the Report dated 25.04.2015 furnished by the CEC found that 102 mining leases do not have requisite environmental clearances / approval under the Forest Conservation Act, 1988 and approved mining plan / or consent to operate. It accordingly directed that the mining operations in these 102 mining leases shall remain suspended but it will be open to such lessee to move the authority concerned for environmental clearances / approval under the Forest (Conservation) Act, 1980, approval of Mining Plan or Consent to Operate and as and when the mining lessees are able to obtain all the clearances / approval / consent, they may move the Hon'ble Court for modification of this interim order in relation to their cases. It was in this background that the application moved by the applicant for revocation of the order of suspension before the Apex Court, was considered and decided by the judgment dated 04.04.2016 in the case of Common Cause (Supra).
70. It is also not out of place to refer to the amendment carried out by the Central Government in Rule 24-A(6) in order to give effect to the conclusions recorded by the Apex Court in the case of Goa Foundation (Supra). Rule 24- A(6) came to be amended on 24.07.2014. Rule 24-A(6) is quoted hereunder:
"24-A. Renewal of mining lease.-(6) If an application for first renewal of a mining lease made within the time referred to in sub-rule (1) is not disposed of by the State Government before the date of expiry of the lease, the period of that lease shall be deemed to have been extended by a further period of two years or till the State Government passes order thereon, whichever is earlier:
Provided that the leases where applications for first renewal of mining lease have been made to the State Government and which have not been disposed of by the State Government before the date of expiry of lease and are pending for disposal as on the date of the notification of this amendment, shall be deemed to have been extended by a further period of two years from the date of coming into force 48 of this amendment or till the State Government passes order thereon or the date of expiry of the maximum period allowed for first renewal, whichever is the earliest:
Provided further that the provisions of this sub-rule shall not apply to renewal under sub-section (3) of Section 8 of the Mines and Minerals (Development and Regulation) Act, 1957."
The above amendment has been reproduced at Para-12 of the judgment rendered by the Apex Court in the case of Common Cause (Supra) dated 04.04.2016. Under the provisions of amended section 24-A(6) of M.C.R, the period of mining operations would be deemed to be extended for a maximum period of two years after the expiry of the period of the original grant, unless of course, the State Government takes a conscious decision on the application for renewal. The Hon'ble Supreme Court while referring to the amended provisions, were of the view that it has to be read in continuation of the un-amended Rule 24- A existing prior to 18.07.2014. The un-amended provisions postulated an unlimited period of mining lease in the absence of determinative order, on an application for renewal. Therefore, even if the original lease had expired many years ago, but if a renewal application had been preferred within the permissible time contemplated under Rule 24-A(1), the same would have continued to subsist till the instant amendment took effect on 18.07.2014. The Apex Court in its opinion at para-12 of the judgment observed that the aforesaid conclusion is important for the reason that proviso to new Rule 24-A(1) amended on 18.07.2014, consciously provided that the lease period where applications had been filed seeking first renewal, would be deemed to have been extended for a further period of further two years from the date of coming into force of the amended sub-rule (6). Accordingly, in all cases wherein the first renewal had been sought, but not determined, the mining operations were extended, by operation of law, till 18.07.2014.
71. It is pertinent to mention here that the case of all these three petitioners related to application for first renewal which were not rejected before coming into 49 force of the Amendment Act, 2015 with effect from 12.01.2015 or before 18.07.2014.
72. The Hon'ble Supreme Court in the judgment dated 04.04.2016 has extensively dealt with the aims and object of the Amendment Act, 2015, the background in which amendment was introduced and the significant regime change, that it sought to bring into operation. The Apex Court also considered the meaning of the expression used in section 8-A(9), whereunder the benefit of section 8A of the M.M.D.R. Act would not extend to such cases where "renewal have been rejected" or where mining lease had been "determined" or where the mining lease had "lapsed". At para-24 of the judgment, the Apex Court held that it is satisfied in accepting the contention that "renewal have been rejected" "determined" and "lapsed" are terms used in different contingencies / situation / exigency under the M.M.D.R. Act and Mineral Concession Rules. The Apex Court expressed its view that these terms are not used in M.M.D.R. Act, or under M.C.R. with reference to expiry of the original grant period or with reference to expiry of the renewal period. It accordingly opined that it is not possible to accept the contention of the learned counsel for the petitioner that Section 8A(9) can be legitimate basis for excluding the applicability of Section 8A, the claims of lease holders where the period of lease or renewal had expired prior to 12.01.2015. It is profitable to quote the opinion of the Apex Court on the object and reasons of the amended M.M.D.R. Act contained at para-25 of the Report hereunder:
Para 25:- The conclusion drawn by us in the foregoing paragraph, also emerges from the "Objects and Reasons" of the amended MMDR Act. The purpose for which the instant amendment came to be made by the Parliament, whereby the amended Section 8A was inserted into the MMDR Act reveals, that past litigation resulting in different interpretations of the provisions of the MMDR Act, and the alleged hardship caused to the mining industry, due to second and subsequent renewals remaining pending with the State Government without any decision, had occasioned the passing of the instant amendment. The above position emerges from the following excerpts of the statement of "Objects and Reasons": "3. The mining sector has been subjected to numerous litigations in the past few years. Important judgments related to the mining sector have been pronounced by the Supreme Court, besides judgments on the issue of allocation of natural resources which have direct relevance to the grant of mineral concessions.50
4. The present legal framework of MMDR Act, 1957, does not permit the auctioning of mineral concessions. Auctioning of mineral concessions would improve transparency in allocation. Government would also get an increased share of the value of mineral resources. Some provisions of the law relating to renewals of mineral concessions have also been found to be wanting in enabling quick decisions. Consequently, there has been a slowdown in the grant of new concessions and the renewal of existing ones. As a result, the mining sector started registering a decline in production affecting the manufacturing sector which largely depends on the raw material provided by mining sector. The Government has therefore felt it necessary to address the immediate requirements of the mining sector and also to remedy the basic structural defects that underlie the current impasse.
5. In view of the urgent need to address these problems, the Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015 was promulgated on 12th January, 2015. The present Bill is to replace this Ordinance. This bill is designed to put in place mechanism for:
(i) Eliminating discretion;
(ii) Improving transparency in the allocation of mineral resources;
(iii) Simplifying procedures;
(iv) Eliminating delay in administration, so as to enable expeditious and optimum development of the mineral resources of the country;
(v) Obtaining for the government an enhanced share of the value of the mineral resources of the country; and
(vi) Attracting private investment and the latest technology;
6. The salient features of MMDR Amendment Bill, 2015 are as follows:
(i) Removal of discretion: auction to be sole method of allotment: The amendment seeks to bring in utmost transparency by introducing auction mechanism for the grant of mineral concessions. The tenure of mineral leases has been increased from the existing 30 years to 50 years. There is no provision for renewal of leases.
(ii) Impetus to the mining sector: The mining industry has been aggrieved due to the second and subsequent renewals remaining pending. In fact, this has led to closure of a large number of mines. The Bill addresses this issue also. The Bill provides that mining leases would be deemed to be extended from the date of their last renewal to 31st March, 2030 (in the case of captive mines) and till 31st March,2020 (for the merchant miners) or till the completion of the renewal already granted, if any, or a period of fifty years from the date of grant of such lease, whichever is later."
(emphasis is ours) From a perusal of the extract reproduced above, it is apparent, that the insertion of Section 8A into the MMDR Act, was to address the hardship faced by leaseholders, besides other reasons, due to the second and subsequent applications for renewal, remaining unattended at the hands of the State Government. The instant amendment to the MMDR Act, introduced a uniform original grant period of fifty years, for all mining leaseholders. It also excluded renewal(s), after the expiry of the original lease period. Accordingly, no renewal application can now be filed (after 12.1.2015). Under sub-sections (5) and (6) of Section 8A, in our view, such leaseholders who had moved applications for renewal of captive/non-captive mines, would be entitled to continue up to 31.3.2030/31.3.2020. The "Objects and Reasons" for the amendment to the MMDR Act aim at remedying the position which emerged 51 upon the interpretation of the provisions of the MMDR Act, as they existed hitherto before. The instant amendment was also directed at remedying the grievances of the mining industry due to "second and subsequent renewals" remaining pending. And also, because the provisions of law relating to renewals had been found to be wanting. The above view is also endorsed by the fact, that Section 8A(9) deals with a situation wherein "...renewal has been rejected...". It is therefore apparent, that sub-sections (5) and (6) of Section 8A of the amended MMDR Act are aimed at situations, wherein an application for renewal (validly made) has remained unattended. Therefore, for no fault of the leaseholder, he would be subjected to an arbitrary prejudice. It needs to be clarified, that since an application for renewal cannot be filed after 12.1.2015, an application for renewal as would be treated as having been validly made, ought to have been made before 12.1.2015. We are of the view, that out of the three contingencies contemplated under sub-sections 8A(5) and 8A(6), referred to above, the first of the contingencies positively, pertains to a situation, wherein applications validly made for renewal, were pending without any final decision at the hands of the State Government. Because in the absence of a renewal application, the leaseholder can be taken to have already expressed his disinterest, to continue mining operations. Therefore logically, the words "... with effect from the date of expiry of the period of renewal last made ...", should relate to an expired lease prior to 12.1.2015, in relation to which a valid application for renewal had already been made".
(underline supplied to add emphasis not part of the original text)
73. However, having held as above, the Apex Court taking note of the 'subject to' clause in Section 8A(5) and 8A(6) of the amended M.M.D.R. Act, clearly observed as follows " Para 27. Irrespective of the position noticed herein above, it is imperative for us to clarify, that the benefit of extension of the lease period postulated under Section 8A of the MMDR Act is available, subject to a further overriding condition, namely, "... that all the terms and conditions of the lease have been complied with". A leaseholder who does not satisfy any of the required conditions of the lease, as for instance, the postulated clearances/approvals/consent, would not be entitled to the benefits extended under sub-section (5) or (6) of Section 8A of the amended MMDR Act."
74. After extensively dealing with the issue of 'lapsed' conceived under section 4A(4) read with Rule 28 and 28A of M.C.R, the Hon'ble Court ruled out the submission advanced on behalf of the non applicant / petitioner and the Union of India that lapse contemplated under section 4A(4) of the M.M.D.R. Act is automatic and that for a lease to lapse, no express order needs to be passed. Based on the detailed consideration and observations made in the foregoing paragraphs of the judgment, the Hon'ble Court summarized the conclusion at para-32 thereof 52 which are of seminal importance while dealing with any matter relating to the question of extension of the lease covered under section 8A of the amended M.M.D.R. Act, 2015. Para-32 of the judgment is quoted in extenso.
"Para 32. Based on the considerations recorded above, we summarise our conclusions as under:
(i) A leaseholder would have a subsisting mining lease, if the period of the original grant was still in currency on 12.1.2015. Additionally, a leaseholder whose original lease has since expired, would still have a subsisting lease, if the original lease having been renewed, the renewal period was still in currency on 12.1.2015. Such a leaseholder, would be entitled to the benefit of Section 8A of the amended MMDR Act.
(ii) A leaseholder who had not moved an application for renewal of a mining lease (which was due to expire, prior to 12.1.2015), at least twelve months before the existing lease was due to expire, under the provisions of the unamended MMDR Act and the Mineral Concession Rules, will be considered as not a valid/subsisting leaseholder, after the expiry of the lease period. The provisions of the amended MMDR Act will therefore not enure to the benefit of such leaseholder.
(iii) A leaseholder who has moved an application for renewal (of the original/first or subsequent renewal) of a mining lease, at least twelve months before the existing lease was due to expire, and on consideration, such an application has been rejected, will be considered as not a valid/subsisting leaseholder. The provisions of the amended Section 8A of the MMDR Act will not enure to the benefit of such leaseholder, because of the express exclusion contemplated for the above exigency, under Section 8A(9) of the amended MMDR Act.
(iv) A leaseholder who has moved an application for "first renewal" of the original mining lease, at least twelve months before the original lease was due to expire, and such application has not been rejected, will be considered to be a valid leaseholder having a subsisting right to carry on mining operations, till the expiry of two years after 18.7.2014, i.e., up to 17.7.2016, as is apparent from a conjoint reading of the unamended and amended Rule 24A of the Mineral Concession Rules. Such leaseholder would have the benefit of sub-sections (5) and (6) of Section 8A of the amended MMDR Act.
(v) A leaseholder who had moved a second (third or subsequent) renewal application under Section 8(3) of the unamended MMDR Act, at least twelve months before the renewed lease was due to expire, and whose application had not been considered and rejected (though not entitled to any benefit under the unamended Section 8A of the MMDR Act and the amended Rule 24A(6) of the Mineral Concession Rules) up to 12.1.2015, would still have the benefit of sub- sections (5) and (6) of Section 8A of the amended MMDR Act, in view of the situation sought to be remedied by the Mines and Minerals (Development and Regulation) Amendment Act, 2015.53
(vi) Consequent upon the amendment of Section 8A of the MMDR Act, the regime introduced through sub-sections (5) and (6) thereof, provides for three contingencies where benefits have been extended to leaseholders whose lease period had earlier been extended by a renewal. Firstly, for a leaseholder whose renewal period had expired before 12.1.2015, and the leaseholder had moved an application for renewal at least twelve months before the leaseholder's existing lease was due to expire, and whose application has not been considered and rejected, the lease period would stand extended up to 31.3.2030/31.3.2020 (in the case of captive/non-captive mines, respectively).
Additionally, a leaseholder whose period of renewal would expire after 12.1.2015, but before 31.3.2030/31.3.2020, the lease period would stand extended up to 31.3.2030/31.3.2020 (in the case of captive/non-captive mines, respectively). Secondly, where the renewal of the mining lease already extends to a period beyond 31.3.2030/31.3.2020 (in the case of captive/non-captive mines, respectively), the lease period of such leaseholders, would continue up to the actual period contemplated by the renewal order. Thirdly, a leaseholder would have the benefit of treating the original lease period as of fifty years. Accordingly, even during the renewal period, if the period of the mining lease would get extended (beyond the renewal period) by treating the original lease as of fifty years, the leaseholder would be entitled to such benefit. Out of the above three contingencies provided under sub- sections (5) and (6) of Section 8A, the contingency as would extend the lease period farthest, would enure to the benefit of the leaseholder.
(vii) Based on the interpretation placed by us on Section 4A(4) of the MMDR Act, and Rule 28 of the Mineral Concession Rules, we can draw the following conclusions. Firstly, unless an order is passed by the State Government declaring, that a mining lease has lapsed, the mining lease would be deemed to be subsisting, up to the date of expiry of the lease period provided by the lease document. Secondly, in situations wherein an application has been filed by a leaseholder, when he is not in a position to (or for actually not) carrying on mining operations, for a continuous period of two years, the lease period will not be deemed to have lapsed, till an order is passed by the State Government on such application. Where no order has been passed, the lease shall be deemed to have been extended beyond the original lease period, for a further period of two years. Thirdly, a leaseholder having suffered a lapse, is disentitled to any benefit of the amended MMDR Act, because of the express exclusion contemplated under Section 8A(9) of the amended MMDR Act".
(underline supplied to add emphasis, not part of the original text)
75. Evidently, as per the ratio rendered at para-32 (iv), quoted above, a lease holder who has moved an application for first renewal of the original mining lease, at least twelve months before the original lease was due to expire and such 54 application has not been rejected, will be considered to be a valid lease holder having a subsisting right to carry on mining operations, till the expiry of two years after 18.07.2014 i.e up to 17.07.2016, as is apparent from a conjoint reading of the un-amended and amended Rule 24A of Mineral Concession Rules. Such lease holder would have the benefit of sub-section (5) and (6) of Section 8A of the amended M.M.D.R. Act. Sub Para-v of para-32 makes it further clear that in case of second (third or subsequent) renewal application moved by a lease holder under un-amended section 8(3) of the M.M.D.R. Act at least twelve months before the renewed lease was due to expire and whose application had not been considered and rejected (though not entitled to any benefit under the un-amended Rule 24A(6) of the Mineral Concession Rules) up to 12.01.2015, would still have the benefit of sub-sections (5) and (6) of Section 8A of the amended M.M.D.R. Act in view of the situation sought to be remedied by the M.M.D.R. (Amendment) Act, 2015. Sub Para (vi) of para-32 contains the construction of regime introduced under sub sections (5) and (6) of the amended Section 8A. It provides for three contingencies where the benefits have been extended to lease holders whose lease period had earlier been extended by a renewal. Firstly, for a lease holders whose renewal application had been moved before 12.01.2015 i.e. at least twelve months before the lease holder's existing lease was to expire and whose application had not been considered and rejected, such lease period would extend extended up to 31.03.2030/ 31.03.2020 (captive and non-captive mines respectively). Additionally, in such cases where period of lease would expire after 12.01.2015 but before 31.03.2030 / 31.03.2020, the lease period would stand extended up to 31.03.2030 / 31.03.2020 (in case of captive / non-captive mines respectively). Secondly, where renewal of a mining lease already extends to a period beyond 31.03.2030 / 31.03.2020, the lease period of such lease holders would continue up to the actual period contemplated by the renewal order. Thirdly, a lease holder would have the benefit of treating the original lease period as of fifty years. Accordingly, even during the renewal period, if the period of mining lease would 55 get extended (beyond the renewal period) by treating the original lease as of fifty years, the lease holder would be entitled to such benefit. Out of the above three contingencies provided under sub-sections (5) and (6) of Section 8A, the contingency as would extend the lease period farthest, would enure to the benefit of the lease holder.
76. From the aforesaid ratio rendered by the Apex Court, it can be pithily stated that the regime of renewal has been replaced by the provisions of deemed extension of lease period of such lessee, as described in the contingencies referred to in para-32 of the judgment in Common Cause (Supra).
It is now necessary to address the legal issue on the meaning of the expression 'Renewal and 'Extension'. There is difference between the extension of lease and a renewal of lease. In the case of extension, it is not necessary to have a fresh deed of lease executed as the extension of lease in the terms agreed upon, shall be a necessary consequence of the clause for extension. The difference between the two expression have been interpreted by the judgment rendered by the Apex Court in the case of Provesh Chandra Dalui and others versus Biswanath Banerjee and another [(1989P Supp. 1 SCC 487] relied upon in the case of Gajraj Singh and others versus State Transport Appellate Tribunal and others (1997) 1 SCC 650]. It is profitable to quote the opinion of the Apex Court contained in para-27 of the judgment rendered in the case of State of Gujarat & others vs. Nirmalaben S. Mehta & another etc. [JT 2016 (6) 508] wherein the opinion of the Apex Court in the case of Gajraj Singh & others (Supra) and Provash Chandra Dalui (supra) on the distinction between the expression 'extension' and 'renewal' has also been referred and relied upon. Para-27 of the judgment in the case of Nirmalaben S. Mehta (Supra) is quoted hereunder:
"27. Further, the High Court has erred in not noticing the well settled legal proposition as laid down by this Court in Gajraj Singh's case supra, on the point that the grant of renewal of the lease in respect of the mining area in question is a fresh grant. The relevant paras read thus:
"37. In Provash Chandra Dalui v. Bisawanath Banerjee this Court drew the distinction between the meaning of the words extension and renewal. It was held that:56
"...a distinction between 'extension' and 'renewal' is chiefly that in the case of renewal, a new lease is required while in the case of extension the same lease continues in force during additional period by the performance of stipulated act. In other words, the word 'extension' when used in its proper and usual sense in connection with a lease, means prolongation of the lease."