- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE27h DAY OF MAY, 2022 PRESENT THE HON’BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE AND THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION No.1920 OF2021C/W WRIT PETITION Nos.8807 OF2020 5973 OF2021 17402 OF2021(GM-MMS) IN W.P. NO.1920 OF2021BETWEEN: INDOCIL SILICONS PVT. LTD., A-56, INDUSTRIAL AREA, PHASE-1, NARAINA, NEW DELHI-110028 THROUGH ITS DIRECTOR, SHRI VARUN AGGARWAL ... PETITIONER (BY SRI DHRUV MEHTA, SENIOR ADVOCATE FOR SRI LOMESH KIRAN N., ADVOCATE) AND:
1. UNION OF INDIA THROUGH SECRETARY, MINISTRY OF MINES, SHASTRI BHAWAN, NEW DELHI2 STATE OF KARNATAKA THROUGH DIRECTOR, DEPARTMENT OF MINES AND GEOLOGY, KHANIJA BHAWAN, BANGALORE, KARNATAKA-560 001 3. DEPARTMENT OF COMMERCE AND INDUSTRIES THROUGH SECRETARY (MSME AND MINES) - 2 - VIKAS SOUDHA, BANGALORE KARNATAKA-560 001 ... RESPONDENTS (BY SRI SHIVAKUMAR S., CGC FOR R1 SRI S.S.MAHENDRA, AGA FOR R2 & R3) --- THIS WRIT PETITION IS FILED UNDER ARTICLE226OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT,
ORDEROR DIRECTION IN THE NATURE OF MANDAMUS DIRECTING RESPONDENT NO.1 TO GRANT PRIOR APPROVAL FOR THE APPLICATION DATED0610/2008 OF THE PETITIONER HEREIN AND ETC. IN W.P.NO.8807 OF2020BETWEEN: DALMIA CEMENT (BHARAT) LIMITED HAVING ITS REGISTERED OFFICE AT DALMIAPURAM DISTRICT TIRUCHIRAPALI TAMIL NADU-621 651 AND ALSO HAVING ITS CORPORATE OFFICE AT11H FLOOR, HANSALAYA BUILDING15 BARAKHAMBA ROAD NEW DELHI-110 001 THROUGH ITS MANAGER – LEGAL AND AUTHORIZED REPRESENTATIVE MR.BHASKARARAO POTHUGUNTLA ... PETITIONER (BY SRI UDAYA HOLLA, SENIOR ADVOCATE FOR SRI GANAPATHY M.S., & SRI NIKHILESH RAO M., ADVOCATES) AND:
1. THE STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY DEPARTMENT OF COMMERCE AND INDUSTRIES (MINES) 1ST FLOOR, VIKAS SOUDHA BENGALURU-560 001 2. DIRECTOR, DEPARTMENT OF MINES AND GEOLOGY KHANIJA BHAWAN RACE COURSE ROAD BENGALURU-560 001 - 3 - 3. UNION OF INDIA THROUGH ITS SECRETARY MINISTRY OF MINES SHASTRI BHAWAN, DR.RAJENDRA PRASAD ROAD NEW DELHI-110 001 ... RESPONDENTS (BY SRI G.V.SHASHI KUMAR, AGA FOR R1 TO R3) --- THIS WRIT PETITION IS FILED UNDER ARTICLE226OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT AGAINST THE RESPONDENTS TO EXECUTE THE MINE DEVELOPMENT AND PRODUCTION AGREEMENT AND THE MINING LEASE IN FAVOUR OF THE PETITIONER, PENDING THE GRANT OF THE EC IN RESPECT OF THE MINING LEASE AREA OF99597 HAS IN BEERANAHALLI, AREBAMMANAHALLI, KONKANAHALLI, TARANAHALLI AND SEDAM (SHETTIHUDA) VILLAGE, SEDAM TALUK, KALABURGI DISTRICT, KARNATAKA IN A TIME BOUND AND EXPEDITIOUS MANNER AND ETC. IN W.P.NO.5973 OF2021BETWEEN: SHREE CEMENT LIMITED HAVING ITS REGISTERED OFFICE AT BANGUR NAGAR, POST BOX NO.33 BEAWAR-305 901 DIST AJMER (RAJASTHAN) REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE / POWER OF ATTORNEY MR. SHANTI LAL BHANSALI ... PETITIONER (BY SRI UDAYA HOLLA, SENIOR ADVOCATE FOR SRI NIKHILESH RAO M., ADVOCATE) AND:
1. THE STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY DEPARTMENT OF COMMERCE AND INDUSTRIES (MINES) 1ST FLOOR, VIKAS SOUDHA BENGALURU-560 001 2. THE DIRECTOR DEPARTMENT OF MINES AND GEOLOGY GOVERNMENT OF KARNATAKA KHANIJA BHAVAN (SW) - 4 - NO.49, RACE COURSE ROAD BENGALURU-560 001 ... RESPONDENTS (BY SRI S.S.MAHENDRA, AGA FOR R1 AND R2 SRI K.A.ARIGA, CGC FOR R3) --- THIS WRIT PETITION IS FILED UNDER ARTICLE226OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF MANDAMUS OF ANY OTHER APPROPRIATE WRIT/DIRECTION/
ORDERAGAINST THE RESPONDENTS TO EXECUTE THE MINE DEVELOPMENT AND PRODUCTION AGREEMENT AND THE MINING LEASE DEED IN FAVOUR OF THE PETITIONER, PENDING THE GRANT OF THE ENVIRONMENT CLEARANCE IN RESPECT OF THE MINING LEASE AREA OF144583 Ha IN BALWAD, TILGUL, KIRANGI AND B SARADGI VILLAGES, TALUK AND DISTRICT, KALABURAGI IN A TIME BOUND AND EXPEDITIOUS MANNER AND ETC. IN W.P.No.17402 OF2021BETWEEN: SHREE CEMENT LIMITED HAVING ITS REGISTERED OFFICE AT BANGUR NAGAR, POST BOX NO33BVEAWAR -305 901 DISTT AJMER (RAJASTHAN) REP BY ITS AUTHORIZED REPRESENTATIVE / POWER OF ATTORNEY – MR. SHANTHI LAL BANSALI ... PETITIONER (BY SRI UDAYA HOLLA, SENIOR ADVOCATE FOR SRI NIKHILESH RAO M., ADVOCATE) AND:
1. THE UNION OF INDIA REP BY ITS SECRETARY (MINES) MINISTRY OF MINES SHASTRI BHAVAN DR RAJENDRA PRASAD ROAD NEW DELHI -110 001 2. THE STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY DEPT. OF COMMERCE AND INDUSTRIES (MINES) 1ST FLOOR , VIKAS SOUDHA BENGLAURU -560 001 - 5 - 3. THE REGIONAL CONTROLLER OF MINES OFFICE OF THE REGIONAL CONTROLLER OF MINES INDIAN BUREAU OF MINES29INDUSTRIAL SUBHURB II STAGE TUMKUR ROAD, GORGUNTAPALYA YESHWANTHPUR BENGALURU -560 022 4. THE INDIAN BUREAU OF MINES THROUGH ITS CONTROLLER GENERAL INDIRA BAHAVAN CIVIL LINES NAGPUR- 440 001 (MAHARASTRA) 5. THE CONTROLLER OF MINES (SZ) INDIAN BUREAU OF MINES29 INDUSTRIAL SUBHURB II STAGE TUMKUR ROAD, GORGUNTAPALAY YESHWANTHPURA BENGLAURU -560 022 (KARNATAKA) 6. THE DIRECTOR DEPT. OF MINES AND GEOLOGY GOVERNMENT OF KARNATAKA KHANIJA BHAVAN (SW) NO49 RACE CURSE ROAD BENGALURU -560 001 ... RESPONDENTS (BY SRI S.S.MAHENDRA, AGA FOR R1 AND R2 SRI SHIVAKUMAR S., CGC FOR R3) --- THIS WRIT PETITION IS FILED UNDER ARTICLE226OF THE CONSTITUTION OF INDIA PRAYING TO STAY THE IMPUGNED
ORDER/LETTER DATED0106.2021 PASSED BY THE R3 UNTIL THE FINAL ADJUDICATION OF THE INSTANT WRIT PETITION ON MERITS AND ETC. THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS, COMING ON FOR ‘PRONOUNCEMENT OF
ORDERS’ THIS DAY, THE CHIEF JUSTICE, PRONOUNCED THE FOLLOWING: - 6 -
ORDERThe Mines and Minerals Development and Regulation Act, 1957 (for short ‘the MMDR Act’) has seen several amendments including the amendments vide Central Act 10 of 2015 w.e.f. 12.01.2015. One such amendment was insertion of Section 10A, whereby 3 categories of persons described in Section 10A(2)(a),(b) and (c) comprising of reconnaissance permit holders who became entitled to prospecting licence followed by a mining lease and prospecting licence holders who became entitled to a mining lease, as the case may be.
2. Subsequently, by Amendment Act 16 of 2021 which came into force on 28.3.2021, Section 10A(2)(b) referred to supra was further amended by incorporating 2 provisos to the said provision. It is the interpretation of the said provisos to Section 10A(2)(b) of the MMDR Act (as amended by Act No.16 of 2021 w.e.f. 28.03.2021) and applicability of the same to the petitioners herein which falls for consideration in the present writ petitions. Prayers in all the writ petitions W.P.No.1920/2021 was filed on 28.01.2021 by Indocil Silicons Private Limited, seeking the following reliefs: - 7 - a) Issue a writ, order or direction in the nature of mandamus directing respondent No.1 to grant prior approval for the application dated 6.10.2008 of the petitioner herein; and/or b) Issue a writ, order or direction in the nature of mandamus directing the respondent authorities to expeditiously grant mining lease in favour of the petitioner in terms of the recommendation of the Screening Committee; and/or c) In the alternative, issue a writ, order or direction in the nature of mandamus directing the respondents to process the application dated 6.10.2008 of the petitioner herein and to expeditiously execute the mining lease within a stipulated time bound manner in terms of Section 10A(2)(b) of the MMDR Act read with Rule 7(6)(b) of the MCR, 2016 at Annexure – D; and/or d) Award costs of these proceedings in favour of the petitioner; and e) Grant such other relief(s) as this Hon’ble High Court may deem fit and necessary in the interests of justice and equity. W.P.No.8870/2020 is filed on 27.06.2020 by Dalmia Cement (Bharath) Limited, seeking the following reliefs: (i) Issue a writ of mandamus or any other appropriate writ / direction / order against the - 8 - Respondents to execute the Mine Development and Production Agreement and the Mining Lease in favour of the petitioner, pending the grant of the EC in respect of the mining lease area of 995.97 ha in Beeranahalli, Arebammanahalli, Konkanhalli, Taranahalli & Sedam (Shettihuda) Village, Sedam Taluk, Kalaburgi District, Karnataka in a time bound and expeditious manner; (ii) Pass any other order or direction which this Hon’ble Court deems fit, in the interest of justice and equity. W.P.No.5973/2021 is filed on 22.03.2021 by Shree Cements, seeking the following reliefs: (i) Issue a writ of mandamus or any other appropriate writ / direction / order against the Respondents to execute the Mine Development and Production Agreement and the Mining Lease Deed in favour of the petitioner, pending the grant of the environment clearance in respect of the mining lease area of 1445.83 Ha. In Balwad, Tilgul, Kirangi and B Saradgi Villages, Taluk & Dist. Kalaburagi in a time bound and expeditious manner; ii) Pass any other order or direction which this Hon’ble Court deems fit, in the interest of justice and equity. W.P.No.17402/2021 is also filed on 18.09.2021 by Shree Cements, seeking the following reliefs: - 9 - i) Issue a writ in the nature of certiorari or any other writ, order or direction / directions quashing the impugned order / letter dated 01.06.2021 passed by the respondent No.3 i.e., Regional Controller of Mines, IBM at Annexure A. ii) Pass any other order or direction which this Hon’ble Court deems fit, in the interest of justice and equity. Factual Matrix - W.P.No.1920/2021 3. Petitioner was granted a Prospecting License dated 14.8.2007 for iron ore and associated minerals over an area of 1500 hectares in Sandur Taluk, Bellary District by the Government of Karnataka, for a period of 3 years. The prospecting is to be undertaken in accordance with the requirements of Mineral Conservation and Development Rules, 1988 and prospecting report is required to be submitted. In the event that on such prospecting, mineable quantity of mineral is found in the scientific prospecting and the prospecting report is found to be in accordance with law, the licensee has a right in law to apply for the mining lease in terms of Section 11 of the MMDR Act. 3.1 It is contended that in accordance with the Prospecting License and the MMDR Act, the petitioner - 10 - undertook detailed prospecting operations in terms of Prospecting Scheme duly approved by Indian Bureau of Mines at considerable cost to the petitioner. Based on the scientific operations undertaken by the petitioner, the petitioner was able to establish mineable reserves of iron ore of low grade (35% to 45%) and quartz ore in the license area. Thereafter, the prospecting report was submitted by the petitioner to IBM in terms of the MCDR1988 as well as to the State Government of Karnataka on 06.10.2008. 3.2 It is further contended that on successful completion of the prospecting operations and establishment of minerals within the license area the Petitioner submitted an Application for grant of mining lease dated 6.10.2008 along with its detailed Prospecting Report, to the Director, Department of Mines and Geology, Government of Karnataka. Along with such application, the petitioner also submitted a Demand Draft of Rs. 3,500/- for the fees for the application in terms of Rule 22(3) of the Mineral Concession Rules, 1960. 3.3 It is contended that on 27.3.2015, the Mines and Minerals (Development and Regulation) Amendment Act, 2015 was enacted to amend the MMDR Act with effect - 11 - from 12.1.2015. As per the newly inserted Section 10A (1) of the said Act, all pending applications for mining leases were declared to be ineligible other than the exceptions created in sub-clause 2 of Section 10A. it is contended that the legislature being alive to the vested rights which had already accrued to the prospecting licensees who had undertaken the entire prospecting operations at their own cost, with a view to seek mining leases, if the availability of mineral was proved, protected their rights to get mining leases under Section 10A(2)(b). Accordingly, the application of the Petitioner herein for grant of mining lease was valid and saved under the aforesaid provision. 3.4 Pursuant to the said amendment, the Government of Karnataka issued a Standard Operating Procedure vide Government Order dated 25.5.2016, to process applications for grant of mining lease in terms of Section 10A(2)(b) of the MMDR Act. Moreover, on 27.6.2016, the Government of India directed all State Governments to expedite the processing and disposal of concession proposals for seeking approval of the Central Government under Section 10A(2)(b). It is further contended that after undergoing the level-by-level scrutiny of the documents and information submitted as prescribed - 12 - in the said SOP, the petitioner’s proposal came to be approved by the Commissioner, Department of Mines and Geology for grant of mining lease on 17.8.2016. Thereafter, the petitioner’s proposal was also scrutinized by the Screening Committee which had been constituted for the very purpose of ensuring completeness of the proposal submitted by the applicant and was approved by the Screening Committee on 19.9.2016. 3.5 It is also contended that the petitioner’s proposal was duly examined by the Ministry of Commerce and Industries of the State of Karnataka, and thereafter with the approval of Minister of Mines, State Government of Karnataka, the same was forwarded to the Central Government on 21.7.2017. The said letter recorded that the application was eligible for grant of mining lease under Section 10A(2)(b) of the MMDR Act, and requested the Ministry of Mines, Government of India to accord its approval under the said provision subject to the area finally available after conducting the total station/ DGPS survey including all safety margins. 3.6 It is further contended that thereafter, in spite of the petitioner’s proposal having been thoroughly examined as per the SOP and by the Screening Committee - 13 - which consisted of senior officers of Government of India, State Government and after receiving approval from several levels of scrutiny in terms of the SOP, the Ministry of Mines, Government of India vide letter dated 17.10.2017, raised queries about alleged incomplete information/ documents in the proposal. In this context, petitioner has put forth necessary pleadings as to how the information and documents were complete in all respects. 3.7 Upon receipt of the said letter dated 17.10.2017 from the Government of India, the Director, DMG, Karnataka sent a para-wise report to the Secretary, Department of Commerce and Industries, State Government of Karnataka on 20.12.2017 reiterating that the queries pointed out by the Central Government stood addressed by the State Government in its proposal dated 21.07.2017 as forwarded earlier and called upon the Central Government to re-examine the proposal and accord prior approval to the case being a case of seamless transfer under Section 10A(2)(b) of the MMDR Act; thereafter, the petitioner made repeated attempts to follow up with the officers of the Ministry of Commerce and Industries, in order to pursue its application for grant of mining lease. However, no further action was taken in respect of the - 14 - report dated 20.12.2017 sent by the Director, DMG, Karnataka or the petitioner’s application for grant of mining lease, which is still pending before the authorities. 3.8 It is further contended that on 26.6.2020, the Director of the petitioner - Company herein addressed an email to the Principal Secretary, Ministry of Commerce and Industries, Government of Karnataka highlighting the inordinate delay in processing of the petitioner’s application and requesting that the report dated 20.12.2017 be forwarded to the Ministry of Mines at the earliest. As no response was received from the concerned officials, the petitioner once again addressed emails dated 20.7.2020, 6.8.2020 and 17.9.2020 for the same purpose; however, there was no response to these communications. 3.9 It is further submitted that due to continued lack of responses by the State Government, the petitioner once again addressed a communication dated 26.10.2020 to the Secretary, Ministry of Mines, reiterating the factual background to its application and requesting the Secretary to advise the State Government of Karnataka to forward the report of the Director, DMG dated 20.12.2017 to the Ministry of Mines at the earliest. It is contended that having regard to the total and complete inaction on the part of the - 15 - Central and State Governments, petitioner preferred the present petition. 3.10 It is significant to state that in the petition which was filed on 25.01.2021, petitioner sought for interim relief’s which were not granted for the time being as can be seen from the order sheet dated 02.02.2021; so also, though prayers (a) and (b) were given up by the petitioner vide Affidavit dated 20.03.2021 filed by it, the said prayers were revived vide Order on I.A.No.2/2021 dated 22.03.2022. 3.11 It is also relevant to state that during the pendency of the petition, Section 10A(2)(b) of the MMDR Act was amended vide Amendment Act No.16 of 2021 w.e.f. 28.03.2021 by incorporating two provisos to the said provision. These are the provisos which are relied upon by the respondents in order to contend that the petitioner is not entitled to any of the reliefs sought for in the petition. 3.12 So also, subsequent to 28.03.2021 as stated supra, the Central Government has addressed a communication dated 12.04.2021 to the State Government to the effect that in view of the provisos to Section 10A(2)(b) referred to supra, the petitioner would not be entitled to the proposal for grant of mining lease, since the - 16 - same has lapsed by virtue of the provisos. The said communication having come into existence subsequent to the institution of the present petition and during its pendency, the legality, validity and correctness of the said communication dated 12.04.2021 which has been issued pursuant to the amendment to Section 10A(2)(b) referred to supra, is also one of the issues on controversy involved in the present petition. Objections of the Respondents 4. The 1st respondent – Union of India has filed its counter affidavit opposing the petition and repudiating the various contentions and claims put forth by the petitioner. It is contended that the amendment to Section 10A(2)(b) vide Act No.16 of 2021 is within the legislative competence of the Central Government and since the same has not been assailed in the petition, the claim of the petitioner is liable to be rejected. It is contended that in view of the decision of the Apex Court in the case of Centre for Public Interest Litigation vs. Union of India1, auction is the only method of alienation / allocation / distribution of natural resources including minerals and as such, the amendment 1 (2012) 3 SCC1- 17 - to Section 10A(2)(b) in 2021 is inconsonance with the said decision as well as the aims and objects of the 2015 amendment to the MMDR Act. It is further contended that as held by the Apex Court in the case of Tamilnadu vs. Hindstone2, no one has a vested right to a mining lease and an application for the same has to be decided and dealt with in accordance with rules in force as on the date of disposal of the application. It is therefore contended that though the petitioner had filed an application seeking mining lease earlier, in view of the amendment to Section 10A(2)(b) w.e.f. 28.03.2021, the right of the petitioner, if any, to grant of a mining lease stood lapsed on account of the proviso inserted by way of amendment and consequently, the claim of the petitioner was liable to be rejected.
5. Respondent Nos. 2 and 3 – State of Karnataka has also filed its statement of objections denying the various claims and contentions put forth by the petitioner. It is contended that the application of the petitioner for grant of mining lease was a pending case attracting the amendment to Section 10A(2)(b) w.e.f. 28.03.2021 and accordingly, the same has lapsed because of the amendment. It is also 2 AIR1981SC711- 18 - contended that there cannot be grant of mining lease without previous approval of the Central Government and consequently, prayers (a) and (b) are not maintainable. So also, the application filed by the petitioner on 06.10.2008 being a pending application has lapsed by virtue of the amendment to Section 10A(2)(b) and prayer (c) was also liable to be rejected. 5.1 The respondents – State have also contended that technical aspects involved in the present petition, render the same as not maintainable in law before this Court. Further, the petitioner having not questioned the Central Government communication dated 17.10.2017 for more than three years is not entitled to any discretionary relief in the present petition. Reliance is placed on the communication dated 15.07.2020 by the Department of Mines and Geology to the Industries and Commerce Department in order to contend that there were many defects in the proposal of the petitioner for grant of mining lease. So also, the details as to how the application of the petitioner was ineligible under Section 10A(2)(b) has been narrated by the respondents – State, who contend that since the application was not filed as per the timelines prescribed in Section 10A(2)(b)(iv), the petitioner was not - 19 - entitled to grant of mining lease. It is also contended that as per the communication dated 12.04.2021 issued by the Central Government, in the light of the amendment vide Act No.16 of 2021 by inserting the provisos to Section 10A(2)(b), the application of the petitioner for grant of mining lease which was still pending stood lapsed and the claim of the petitioner was liable to be rejected. Petitioner’s Rejoinder 6. The petitioner has filed its rejoinder to the statement of objections, interalia denying the various contentions urged in the statement of objections / counter affidavit filed by the respondents. Petitioner contends that so long as the State Government has accorded its satisfaction by issuing a communication vide Annexure-J dated 21.07.2017 to the Central Government by coming to the conclusion that the application of the petitioner for grant of mining lease was eligible under Section 10A(2)(b), the application cannot be construed or treated as a pending application / case as contemplated under the proviso inserted by way of amendment in 2021 which was not applicable to the petitioner or its application. It is also contended that reliance placed on the documents produced by the respondents is misconceived and the decision of this - 20 - Court in the case of D.Ramesh vs. State of Karnataka3 relied upon by the respondents was not applicable to the facts of the instant case. 6.1 It is further contended that upon satisfaction being arrived at by the State Government regarding eligibility of the application of the petitioner for grant of mining lease in terms of Section 10A(2)(b), the State Government becomes functus officio and as such, it was not open for the State Government to oppose the claim of the petitioner. Thus, reiterating the various contentions urged in the petition and denying the defence put forth by the respondents, petitioner has sought for allowing the petition.
7. We have heard Sri.Dhruv Mehta, learned Senior counsel appearing for the petitioner and Sri.S.Shivakumar, learned Central Government Counsel for 1st respondent as well as Sri.S.S.Mahendra, learned Additional Government Advocate for respondent Nos. 2 and 3. Petitioner’s contentions - W.P.No.1920/2021 8. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned Senior counsel for the petitioner submitted 3 ILR2020KAR1755- 21 - that the vested right created in favour of the petitioner by virtue of Section 10A(2)(b) having been inserted by way of amendment in 2015 having been recognised, confirmed and affirmed to the satisfaction of the State Government in its recommendation vide letter dated 21.07.2017 stands unaffected and has not been impacted by the amendment of the year 2021. It is submitted that the provisos to Section 10A(2)(b) inserted vide Act No.16 of 2021 w.e.f.28.03.2021 is not applicable to the application / claim of the petitioner since the same was not a pending case as on the date of the amendment which is prospective and not retrospective and retroactive in nature or operation. 8.1 It is also pointed out that the vested right that had accrued in favour of the petitioner by virtue of Section 10A(2)(b) which had been recognised, confirmed and affirmed to the satisfaction of the State Government in its recommendation vide letter dated 21.07.2017 had stood crystallized and become effective and implementable in favour of the petitioner on 28.01.2021 itself when the petitioner had filed the petition and any subsequent amendment, more so during the pendency of the petition will have no bearing or impact on the said crystallized right, which entitled the petitioner to grant of mining lease in - 22 - terms of the law that existed prior to 28.03.2021 and asserted by the petitioner as on the date of filing the petition itself on 28.01.2021. 8.2 It is therefore submitted that since the amendment dated 28.03.2021 which has come into existence subsequent to institution of the present petition does not apply to the application / claim of the petitioner for grant of mining lease which has been confirmed and recognised as being eligible by the State Government, the petitioner is entitled to grant of mining lease and the subsequent communication dated 11.04.2021 issued during the pendency of the petition deserves to be quashed. 8.3 In support of his contentions, learned senior counsel has placed reliance upon the following judgments:- 1. Commissioner of Income Tax, Kanpur & others Vs. Society for the Promotion of Education, Adventure Sport & Conservation of Environment, Allahabad4; 2. Society for the Promotion of Education Adventure Sport & Conservation of Environment Vs. Commissioner of Income Tax, Central & others5; 3. St. Johns Teachers Training Institute Vs. Regional Director, National Council for Teacher Education and another6; 4. Naresh Kumar Agarwal Vs. State of Odisha and others7; 4 (2017) 11 SCC4805 2008 SCC Online All 1578 6 (2003) 3 SCC3217 Order dated 09.03.2021 in W.P.(C) No.36935/ 2020 before the Hon’ble Orissa High Court - 23 - 5. M/s. Girdhari Lal & Sons Vs. Balbir Nath Mathur & others8; 6. The South Gujarat Roofing Tiles Manufacturers Association and another Vs. The State of Gujarat and another9; 7. Godfrey Phillips India Ltd. and another Vs. State of U.P. and others10; 8. Tahsildar Singh & Another Vs. State of U.P.11; 9. Casio India Company Pvt. Ltd. Vs. State of Haryana12; 10. A.A. Haja Muniuddin Vs. Indian Railways13; 11. Kusheshwar Prasad Singh Vs. State of Bihar & Others14; 12. Centre for Public Interest Litigation & Ors. Vs. Union of India and others15; 13. Natural Resources Allocation, In Re.Special Reference No.1 of 201216; 14. Manohar Lal Sharma Vs. Principal Secretary and others17; 15. Bhushan Power & Steel Ltd. Vs. S.L. Seal, Additional Secretary (Steel & Mines), State of Odisha and others18; 16. S.B. International Ltd., and others Vs. Asst. Director General of Foreign Trade and others19; 8 (1986) 2 SCC2379 (1976) 4 SCC60110 (2005) 2 SCC51511 AIR1959SC101212 (2016) 6 SCC20913 (1992) 4 SCC73614 (2007) 11 SCC44715 (2012) 3 SCC116 (2012) 10 SCC117 (2014) 9 SCC51618 (2017) 2 SCC12519 (1996) 2 SCC439- 24 - 17. Comptroller and Auditor-General of India, Gian Prakash, New Delhi and another Vs. K.S.Jagannathan and another20; 18. The Cheran Transport Co. Ltd. Vs. Kanan Lorry Service and another21; 19. G.J.Raja Vs. Tejraj Surana22; 20. Ambalal Sarabhai Enterprises Ltd., Vs. Amrit Lal & Co. and another23; Contentions of the Respondents 9. Per contra, learned Central Government Counsel and learned Additional Government Advocate for the respondents would reiterate the various contentions urged in the statement of objections and submit that there is no merit in the petition and that the same is liable to be rejected. In support of their contentions, reliance is placed on the following decisions:- 1. Kedarnath Jute Manufacturing Co. Ltd., Vs. Commercial Tax Officer and others24; 2. Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceutical Laboratories25; 3. Ishverlal Thakorelal Almaula Vs. Motibhai Nagjibhai26; 4. Dattatraya Govind Mahajan & others Vs. State of Maharashtra and another27; 20 (1986) 2 SCC67921 (1977) 1 SCC60422 (2019) 19 SCC46923 (2001) 8 SCC39724 AIR1966SC1225 AIR1965SC98026 AIR1966SC45927 (1977) 2 SCC548- 25 - 5. S. Sundaram Pillai and others Vs. V.R. Pattabiraman and others28; 6. K. Thirumalesh and others Vs. State of Karnataka & others29; 7. D. Ramesh Vs. State of Karnataka & others30; 8. Howrah Municipal Corporation and others Vs. Ganges Rope Company Limited and others31; 9. Geomin Minerals and Marketing Private Limited Vs. State of Orissa and others 32; 10. State of Tamil Nadu Vs. M/s. Hind Stone and others33 Factual Matrix - W.P.No.8807/2020 10. The petitioner – Dalmia Cement (Bharat) Ltd., was granted a Prospecting License on 02.08.2007 for a period of two years and the Deed of licence was executed in favour of the petitioner on 21.08.2007. On 09.05.2008, the petitioner submitted an application for grant of mining lease in its favour. The various events that transpired between 09.05.2008 and 12.01.2015 when the amendment to the MMDR Act came into force have been narrated in the petition. So also, it is contended that the petitioner was 28 (1985) 1 SCC59129 WP Nos.10601/2019 & connected matters (Order dated 16.08.2019) 30 ILR2020KAR175531 (2004) 1 SCC66332 (2013) 7 SCC57133 (1981) 2 SCC205- 26 - eligible to obtain a mining lease in terms of Section 10A(2)(b) which came into force on 12.01.2014 and all the events including clearances, permissions, correspondence etc., that occurred subsequent to 12.01.2015 till 16.07.2019 on which date, mining lease was sanctioned in favour of the petitioner have also been pleaded in the petition. 10.1 It is contended that pursuant to mining lease having been sanctioned / granted in favour of the petitioner communicated vide letter dated 25.07.2019, the State Government issued an Addendum dated 19.08.2019, subsequent to which, petitioner paid a sum of Rs.49,79,850/- on 05.09.2019. It is also contended that despite the aforesaid facts and circumstances and compliance made by the petitioner, respondents are not taking any steps to execute the Mine Development and Production Agreement as well as the mining lease in favour of the petitioner, who is before this Court by way of the present petition. 10.2 It is significant to state that in the petition which was filed on 25.01.2021, petitioner sought for interim relief’s which were not granted for the time being as can be seen from the order sheet dated 02.02.2021; so also, - 27 - though prayers (a) and (b) were given up by the petitioner vide Affidavit dated 20.03.2021 filed by the petitioner, the said prayers were revived vide Order on I.A.No.2/2021 dated 22.03.2022. 10.3 It is also relevant to state that during the pendency of the petition, Section 10A(2)(b) of the MMDR Act was amended vide Amendment Act No.16 of 2021 w.e.f. 28.03.2021 by incorporating two provisos to the said provision. These are the provisos which are relied upon by the respondents in order to contend that the petitioner is not entitled to any of the reliefs sought for in the petition. 10.4 So also, subsequent to 28.03.2021 as stated supra, the Central Government has addressed a communication dated 12.04.2021 to the State Government to the effect that in view of the provisos to Section 10A(2)(b) referred to supra, the proposal of the petitioner would not be entitled to grant of mining lease since the same has lapsed by virtue of the provisos. The said communication having come into existence subsequent to institution of the present petition and during its pendency, the legality, validity and correctness of the said communication dated 12.04.2021 which has been issued pursuant to the amendment to Section 10A(2)(b) referred - 28 - to supra, is also one of the issues on controversy involved in the present petition.
11. In this petition also, both Central Government as well as State Government have filed their statement of objections putting forth identical contentions in support of their defence. Factual Matrix - W.P.No.5973/2021 and W.P.No.17402/2021 12. Both these petitions are filed by M/s.Shree Cement Limited. It is contended that prospecting licence having been granted in favour of the petitioner on 31.08.2007 and 20.11.2007 for a period of two years, an application for grant of mining lease was filed on 09.11.2009. 12.1 The various events that transpired between 09.11.2009 and 12.01.2015 when the amendment to the MMDR Act came into force have been narrated in the petition. So also, it is contended that the petitioner was eligible to obtain a mining lease in terms of Section 10A(2)(b) which came into force on 12.01.2015 and all the events including clearances, permissions, correspondence etc., that occurred subsequent to 12.01.2015 till 16.07.2019 on which date, mining lease was sanctioned in - 29 - favour of the petitioner have also been pleaded in the petitions. 12.2 It is contended that pursuant to mining lease having been sanctioned / granted in favour of the petitioner communicated vide letter dated 03.12.2019. It is also contended that despite the aforesaid facts and circumstances and compliance made by the petitioner, respondents are not taking any steps to execute the Mine Development and Production Agreement as well as the mining lease in favour of the petitioner who is before this Court by way of the present petitions. 12.3 It is significant to state that in W.P.5973/2021 which was filed on 22.03.2021, during the pendency of the petition, Section 10A(2) (b) of the MMDR Act was amended vide Amendment Act No.16 of 2021 w.e.f. 28.03.2021 by incorporating two provisos to the said provision. These are the provisos which are relied upon by the respondents in order to contend that the petitioner is not entitled to any of the reliefs sought for in the petition. 12.4 So also, insofar as W.P.No.17402/2021 which was filed on 18.09.2021 is concerned, it is relevant to state that on 01.06.2021, the Central Government has addressed a communication intimating the petitioner that in view of - 30 - the provisos to Section 10A(2)(b) referred to supra, the proposal of the petitioner would not be entitled to grant of mining lease since the same has lapsed by virtue of the provisos. The legality, validity and correctness of the said communication dated 01.06.2021 which has been issued pursuant to the amendment to Section 10A(2)(b) referred to supra, has been assailed by the very same petitioner Shree Cement Limited in this petition.
13. In these petitions also, both Central Government as well as State Government have filed their statement of objections putting forth identical contentions in support of their defence.
14. We have heard Sri.Udaya Holla, learned Senior counsel appearing for the petitioners and Sri.S.S.Mahendra, learned Additional Government Advocate for respondent Nos. 1 and 2 as well as Sri.S.Shivakumar, learned Central Government Counsel for 3rd respondent. Petitioner’s contentions - W.P.No.8807/2020, W.P.No.5973/2021 and W.P.No.17402/2021 15. In addition to reiterating the various contentions urged in W.P.No.8807/2020, W.P.No.5973/2021 and W.P.No.17402/2021 and referring to the material on - 31 - record, learned Senior counsel for the petitioners submitted that the vested right created in favour of the petitioners by virtue of Section 10A(2)(b) having been inserted by way of amendment in 2015 having been recognised, confirmed and affirmed by the State Government which has passed orders dated 16.07.2019 and 03.12.2019 respectively granting mining leases in favour of the petitioners stand unaffected and have not been impacted by the amendment of the year 2021. 15.1 It is submitted that the provisos to Section 10A(2)(b) inserted vide Act No.16 of 2021 w.e.f.28.03.2021 is not applicable to the applications / claims of the petitioners, since the same were not pending cases as on the date of the amendment which is prospective and not retrospective and retroactive in nature or operation. It is also pointed out that the vested rights that had accrued in favour of the petitioners by virtue of Section 10A(2)(b) which had been recognised, confirmed and affirmed by the State Government who had sanctioned / granted leases in favour of the petitioners vide orders dated 16.07.2019 and 03.12.2019 respectively stood crystallized and become effective and implementable in favour of the petitioners on 27.06.2020 and 22.03.2021 itself when the petitioners had - 32 - filed the petitions and any subsequent amendment more so during the pendency of the petitions, will have no bearing or impact on the said crystallized rights which entitled the petitioners to grant of mining leases in terms of the law that existed prior to 28.03.2021 and asserted by the petitioners as on the date of filing the petitions. 15.2 It is submitted that the State Government which is the competent authority to grant mining lease had already passed orders in favour of the petitioners sanctioning / granting mining leases in their favour and the execution of a lease deeds were a mere formality and a mini serial / administrative act which has no nexus or connection whatsoever to the amendment to Section 10A(2)(b) which is not applicable to the claim of the petitioners. 15.3 It is therefore submitted that since the amendment dated 28.03.2021 which has come into existence subsequent to institution of the present petitions does not apply to the applications / claims of the petitioners for execution of the mining leases in their favour which have been confirmed and recognised as being eligible by the State Government, which has already sanctioned the same and consequently, the petitioners are entitled to - 33 - obtain the lease deeds in their favour and the communication dated 01.06.2021 which is assailed in W.P.No.17402/2021 deserves to be quashed. In support of his contentions, learned senior counsel has placed reliance upon the following judgments:- 1. Hitendra Vishnu Thakur and others Vs. State of Maharashtra and others34; 2. Gujarat Pottery Works Vs. B.P. Sood, Controller of Mining Leases for India and others35; 3. Meena Lakhotia Vs. State of Karnataka & others36; 4. Aane Mines and Minerals Vs. State of Karnataka37; 5. J.K.Cement (Western) Limited Vs. The State of Karnataka and others38 Respondent’s Contentions 16. Per contra, learned Central Government Counsel and learned Additional Government Advocate for the respondents would reiterate the various contentions urged in the statement of objections and submit that there is no merit in the petition and that the same is liable to be rejected. In support of their contentions, reliance is placed on the following judgments:- 34 (1994) 4 SCC60235 AIR1967SC96436 WP No.302020/2017 (D.D.31.05.2019) 37 WP No.15824/2018 (D.D.23.07.2019) 38 W.P.No.13674/2020 (D.D.08.02.2021) - 34 - 1. S.B. International Ltd., and others Vs. Asst. Director General of Foreign Trade and others39; 2. Commissioner of Municipal Corporation, Shimla Vs. Prem Lata Sood and others40; 3. Shanti Sports Club and another Vs. Union of India and others41 17. We have given our anxious consideration to the rival submissions and perused the material on record.
18. Upon consideration of the rival submissions and perusal of the material on record, the following point that arises for consideration in the present petitions; “Whether the provisos to Section 10A(2)(b) of the Mines and Minerals Development Act, 1957 as inserted vide amendment Act No.16 of 2021 w.e.f.28.03.2021 are applicable to the writ petitioners insofar as the claim for mining leases are concerned?.” FINDINGS19 As stated supra, Section 10A was inserted in the MMDR Act w.e.f.12.01.2015. The said provision comprised of Section 10A(1) and 10A(2) (a) to 10A(2)(c). By Amendment Act No.16 of 2021, the provision was amended 39 (1996) 2 SCC43940 (2007) 11 SCC4041 (2009) 15 SCC705- 35 - by incorporating two provisos to Section 10A(2)(b) as well as an additional clause as Section 10A(2)(d) w.e.f. 28.03.2021. For easy reference, 10A(2) as it stood prior to 2021 Amendment and subsequently are extracted hereunder:- Section 10A prior to Amendment Section 10A subsequent to Act No.16 of 2021 Amendment Act No.16 of 2021 w.e.f.28.03.2021 (1) All applications received (1) All applications received prior to the date of prior to the date of commencement of the Mines commencement of the Mines and Minerals (Development and and Minerals (Development and Regulation) Amendment Act, Regulation) Amendment Act, 2015 shall become ineligible. 2015 shall become ineligible. (2) Without prejudice to subs (2) Without prejudice to subs section (1), the following shall section (1), the following shall remain eligible on and from the remain eligible on and from the date of commencement of date of commencement of Mines and Minerals Mines and Minerals (Development and Regulation) (Development and Regulation) Amendment Act, 2015 – Amendment Act, 2015 – (a) applications received under (a) applications received under Section 11A of this Act. Section 11A of this Act. (b) where before the (b) where before the commencement of the Mines commencement of the Mines and Minerals (Development and and Minerals (Development and Regulation) Amendment Act, Regulation) Amendment Act, 2015, reconnaissance permit or 2015, reconnaissance permit or prospecting licence has been prospecting licence has been granted in respect of any land granted in respect of any land for any mineral, the permit for any mineral, the permit holder or the licensee shall holder or the licensee shall have a right for obtaining a have a right for obtaining a prospecting licence followed by prospecting licence followed by a mining lease, or a mining a mining lease, or a mining lease, as the case may be, in lease, as the case may be, in respect of that mineral in that respect of that mineral in that land, if the State Government land, if the State Government is satisfied that the permit is satisfied that the permit holder or the licensee, as the holder or the licensee, as the - 36 - case may be, - case may be, - (i) has undertaken (i) has undertaken reconnaissance operations or reconnaissance operations or prospecting operations as the prospecting operations as the case may be, to establish the case may be, to establish the existence of mineral contents in existence of mineral contents in such land in accordance with such land in accordance with parameters as may be parameters as may be prescribed by the Central prescribed by the Central Government; Government; (ii) has not committed any (ii) has not committed any breach of the terms and breach of the terms and conditions of the conditions of the reconnaissance permit or the reconnaissance permit or the prospecting licence; prospecting licence; (iii) has not become ineligible (iii) has not become ineligible under the provisions of this Act under the provisions of this Act and and (iv) has not failed to apply for (iv) has not failed to apply for grant of prospecting licence or grant of prospecting licence or mining lease, as the case may mining lease, as the case may be, or within such further be, or within such further period nor exceeding six period nor exceeding six months as may be extended by months as may be extended by the State Government; the State Government; (c) where the Central Provided that for the cases Government has communicated covered under this clause previous approval as required including the pending cases, under sub section (1) of the right to obtain a Section 5 for grant of a mining prospecting licence followed by lease, or if a letter of intent (by a mining lease or a mining whatever name called) has lease, as the case may be, shall been issued by the State lapse on the date of Government to grant a mining commencement of the Mines lease before the and Minerals (Development and commencement of Mines and Regulation) Amendment Act, Minerals (Development and 2021: Regulation) Amendment Act, Provided further that the holder 2015, the mining lease shall be of a reconnaissance permit or granted subject to the prospecting licence whose fulfilment of conditions of the rights lapsed under the first previous approval or of the proviso shall be reimbursed the letter of intent within a period expenditure incurred towards of two years from the date of reconnaissance or prospecting commencement of the said Act: operations in such manner as - 37 - Provided that in respect of any may be prescribed by the mineral specified in the First Central Government. Schedule, no prospecting (c) where the Central licence or mining lease shall be Government has communicated granted under clause (b) of this previous approval as required sub section except with under sub section (1) of previous approval of the Section 5 for grant of a mining Central Government. lease, or if a letter of intent (by whatever name called) has been issued by the State Government to grant a mining lease before the commencement of Mines and Minerals (Development and Regulation) Amendment Act, 2015, the mining lease shall be granted subject to the fulfilment of conditions of the previous approval or of the letter of intent within a period of two years from the date of commencement of the said Act: Provided that in respect of any mineral specified in the First Schedule, no prospecting licence or mining lease shall be granted under clause (b) of this sub section except with previous approval of the Central Government. (d) in cases where the right to obtain a licence or lease has lapsed under clauses (b) and (c), such areas shall be put up for auction as per the provisions of this act: Provided that in respect of minerals specified in Part-B of the First Schedule where the grade of atomic mineral is equal or greater than the threshold value, the mineral concession for such areas shall be granted in accordance with the rules made under Section 11B.-. 38 - 20. As stated supra, the interpretation and applicability of the provisos to Section 10A(2)(b) as amended in 2021 falls for consideration in the present petitions.
21. Before adverting to the rival contentions, the undisputed facts borne out from the material on record in W.P.No.1920/2021 are that the petitioner had been granted a prospecting licence and had applied for grant of mining lease in 2007 prior to 12.01.2015 when the amendment to MMDR Act took effect by incorporation of Section 10A(2)(b); subsequently, after following the prescribed procedure, the State Government was satisfied that the petitioner’s application was eligible and qualified for grant of mining lease under Section 10A(2)(b) and recommended to the Central Government for approval vide letter dated 21.07.2017. Thereafter, though the Central Government issued a letter dated 17.10.2017 raising certain queries, pursuant to which, there was correspondence between the State government departments, no further steps in this regard was taken by the Government and the petitioner approached this Court by filing the present petition on 28.01.2021. It is also not in dispute that during the pendency of the petition, Act No.16 of 2021 was enacted by - 39 - incorporating the provisos to Section 10A(2)(b), which is the subject matter of the present petition.
22. Insofar as W.P.No.8807/2020 filed by Dalmia Cement (Bharat) Limited and W.P.No.5973/2021 and W.P.No.17402/2021 filed by Shree Cements Limited are concerned, the respective petitioners were granted prospective licences and had applied for mining leases prior to 12.01.2015. However, in these cases, the State Government has granted / sanctioned mining leases in favour of the petitioners vide orders dated 16.07.2019 and 03.12.2019 respectively after the Central Government has granted its approval and the only thing that remained to be done was execution of mining lease deeds in favour of the petitioners.
23. In our considered opinion, the said provisos to Section 10A(2)(b) incorporated vide Amendment Act No.16 of 2021 w.e.f. 28.03.2021 are not applicable to the petitioners or their claim for grant of mining leases and execution of mining lease deeds under Section 10A(2)(b) prior to amendment for the following reasons:- - 40 - (i) In the case of Bhushan Power and Steel Limited vs. State of Orissa42, the Apex Court has held that the right to obtain a mining lease by prospecting licence holders under Section 10A(2)(b) is a vested right. In the said judgment, it was held as under:- 17. Undoubtedly, as per sub-section (1) of Section 10-A, all applications received prior to coming into force of the Amendment Act, 2015, become ineligible. Reason for interpreting such a provision is not far to seek. Before the passing of the Amendment Act, 2015, it was the Central Government which had the ultimate control over the grant of licences insofar as mining of major minerals is concerned. As per the procedure then existing, the State Government could recommend the application submitted by any applicant for grant of mining lease to the Central Government and the Central Government was given the power to grant or refuse to grant the approval. Thus, “previous approval” from the Central Government was essential for grant of lease, without which the State Government could not enter into any such lease agreement with the applicant. Shortcomings of this procedure were noticed by this Court in its judgment rendered in Centre for Public Interest Litigation v. Union of India [Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC1 (for short “CPIL case”) and also in Natural Resources Allocation, In re, Special Reference No.1 of 2012 [Natural Resources Allocation, In re, Special Reference No.1 of 2012, (2012) 10 SCC1 . In these judgments, this Court expressed that allocation of natural resources should normally be by auction. Judgment in CPIL case [Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC1 had a direct relevance to the grant of mineral concessions as the Government found that it was resulting in multipurpose litigation which was becoming counterproductive. Mining Ordinance, 2015 was 42 (2017) 2 SCC125- 41 - passed on 12-1-2015 which was ultimately replaced when Parliament enacted the Amendment Act, 2015.
18. The exhaustive Statement of Objects and Reasons reveals that the extensive amendment in the Act were effected after extensive consultations and intensive scrutiny by the Standing Committee on Coal and Steel, who gave their Report in May 2013. As is evident from the Statement that difficulties were experienced because the existing Act does not permit the auctioning of mineral concessions. It was observed that with auctioning of mineral concessions, transparency in allocation will improve; the Government will get an increased share of the value of mineral resources; and that it will alleviate the procedural delay, which in turn would check slowdown which adversely affected the growth of mining sector.
19. The Amendment Act, 2015, as is evident from the objects, aims at: (i) eliminating discretion; (ii) improving transparency in the allocation of mineral resources; (iii) simplifying procedures; (iv) eliminating delay on 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; and (vi) attracting private investment and the latest technology.
20. The Amendment Act, 2015 ushered in the amendment of Sections 3, 4, 4-A, 5, 6, 13, 15, 21 and First Schedule; substitution of new sections for Sections 8, 11 and 13; and, insertion of new Sections 8-A, 9-B, 9-C, 10-A, 10-C, 11-B, 11-C, 12-A, 15-A, 17-A, 20-A, 30-B, 30-C and Fourth Schedule.
21. These amendments brought in vogue: (i) auction to be the sole method of allotment; (ii) extension of tenure of existing lease from the date of their last renewal to 31-3-2030 (in the case of captive mines) and till 31-3-2020 (for the merchant miners) or till the completion of renewal already granted, if any, or a period of 50 years from the date of grant of such lease; (iii) establishment of District Mineral Foundation for safeguarding interest of persons affected by - 42 - mining related activities; (iv) setting up of a National Mineral Exploration Trust created out of contributions from the mining lease-holders, in order to have a dedicated fund for encouraging exploration and investment; (v) removal of the provisions requiring “previous approval” from the Central Government for grant of mineral concessions in case of important minerals like iron ore, bauxite, manganese, etc. thereby making the process simpler and quicker; (vi) introduction of stringent penal provisions to check illegal mining prescribing higher penalties up to Rs 5 lakhs per hectare and imprisonment up to 5 years; and (vii) further empowering the State Government to set up Special Courts for trial of offences under the Act.
22. Newly inserted provisions of the Amendment Act, 2015 are to be examined and interpreted keeping in view the aforesaid method of allocation of mineral resources through auctioning, that has been introduced by the Amendment Act, 2015. Amended Section 11 now makes it clear that the mining leases are to be granted by auction. It is for this reason that sub- section (1) of Section 10-A mandates that all applications received prior to 12-1-2015 shall become ineligible. Notwithstanding, sub-section (2) thereof carves out exceptions by saving certain categories of applications even filed before the Amendment Act, 2015 came into operation. Three kinds of applications are saved:
22. 1. First, applications received under Section 11-A of the Act. Section 11-A, under new avatar is an exception to Section 11 which mandates grant of prospecting licence combining lease through auction in respect of minerals, other than notified minerals. Section 11- A empowers the Central Government to select certain kinds of companies mentioned in the said section, through auction by competitive bidding on such terms and conditions, as may be prescribed, for the purpose of granting reconnaissance permit, prospecting licence or mining lease in respect of any area containing coal or lignite. Unamended provision was also of similar - 43 - nature except that the companies which can be selected now for this purpose under the new provision are different from the companies which were mentioned in the old provision. It is for this reason, if applications were received even under unamended Section 11-A, they are saved and protected, which means that these applications can be processed under Section 11-A of the Act. 22.2. Second category of applications, which are kept eligible under the new provision, are those where the reconnaissance, permit or prospecting licence had been granted and the permit-holder or the licensee, as the case may be, had undertaken reconnaissance operations or prospecting operations. The reason for protecting this class of applicants, it appears, is that such applicants, with hope to get the licence, had altered their position by spending lot of money on reconnaissance operations or prospecting operations. This category, therefore, respects the principle of legitimate expectation. 22.3. Third category is that category of applicants where the Central Government had already communicated previous approval under Section 5(1) of the Act for grant of mining lease or the State Government had issued letter of intent to grant a mining lease before coming into force of the Amendment Act, 2015. Here again, the raison dêtre is that certain right had accrued to these applicants inasmuch as all the necessary procedures and formalities were complied with under the unamended provisions and only formal lease deed remained to be executed. 22.4. It would, thus, be seen that in all the three cases, some kind of right, in law, came to be vested in these categories of cases which led Parliament - 44 - to make such a provision saving those rights, and understandably so. (ii) As held by the Apex Court in the aforesaid judgment, it is clear that the petitioner who has been held to be eligible and qualified to obtain a mining lease as can be seen from the State Government recommendation / report dated 21.07.2017 has a vested right to obtain a mining lease in terms of Section 10A(2)(b). As a corollary, it follows there from that the said vested right having been created and stood accrued in favour of the petitioner by virtue of Section 10A(2)(b) and confirmed, affirmed and recognised by the State Government on 21.07.2017, the said vested right to obtain a mining lease cannot be taken away or effaced or nullified by subsequent amendment by insertion of the provisos w.e.f. 28.03.2021. (iii) In the case of Shankar Lal Nadani vs. Sohan Lal Jain43, after reviewing the earlier law on the issue, the Apex Court has reiterated that rights of parties stand crystallized on the date of institution of the lis and therefore, the law applicable on the date of filing / institution of the lis will continue to apply till the same is disposed of or adjudicated and change of law will not impact or affect the vested right 43 2022 SCC Online SC442- 45 - of a party that had accrued and stood crystallized in his favour as on the date of institution of the lis; in this context, it is relevant to state that the right to obtain a mining lease and the right to get a lease deed executed in favour of the respective petitioners which are vested rights stood crystallized when the respective writ petitions were filed by the petitioners undisputedly prior to 28.03.2021 when the amendment came into force. In other words, the right to obtain a mining lease and get the lease deed executed got crystallized much prior to the amendment which came into force on 28.03.2021 and consequently, the said vested right which stood crystallized cannot be said to have been taken away by the amendment and on this ground also, in the peculiar and special facts and circumstances of the instant cases, wherein the respective petitioners had exercised their right to obtain a mining lease and lease deed which had become implementable and executable, the proviso which came into force on 28.03.2021 neither applies nor affects or impacts the right of the respective petitioners to grant of the reliefs sought for by them. (iv) As rightly contended by the learned Senior counsel for the petitioners, in the context of the proviso - 46 - inserted by way of amendment in 2021 and considering the scheme of the Act and Rules, the words “provided that for the cases covered under this clause including pending cases” do not mean any word of extension so as to include two categories of cases; needless to say that the word “lapse” occurring in the proviso can mean only pending cases and not concluded cases and consequently, the aforesaid words can only be said to mean and include pending cases where no vested right are accrued in favour of the parties and not concluded cases. In this context, useful reference may be made to decision of the Apex Court in the cases of South Gujarath Roofing Tiles Manufacturers Association44 and Godfrey Philips India Limited vs. State of U.P.45. (v) It is well settled that a proviso to a provision cannot control the main provision nor be interpreted in a manner which renders the main provision nugatory or otiose as held in various judgments including the decisions of the Apex Court in the cases of Tahsildar Singh vs. State of U.P.46, Casio India Company Private Limited vs. State of 44 (1976) 4 SCC60145 (2005) 2 SCC51546 AIR1959SC1012- 47 - Haryana47 and Indoor Development Authority vs. Manohal Lal48. In this context, a valuable right having been created in favour of the petitioners by 2015 amendment to the MMDR Act, the proviso which was inserted on 28.03.2021 cannot be interpreted, construed or treated as taking away the said valuable right which had become a vested right in favour of the petitioners and confirmed and recognised by the State Government as stated supra. Viewed from this angle also, the proviso to Section 10A(2)(b) is not applicable to the claim of the petitioners for grant of mining leases and execution of lease deeds. (vi) As held by the Apex Court in the case of Giridari Lal vs. Balbir Nath Mathur49, any interpretation / construction of a provision that would lead to anomalies, injustice or absurdity should not be adopted and the interpretation that would advance the object of the provision should be given effect to. In this context, it has to be stated that the proviso to Section 10A(2)(b) inserted in 2021 cannot be interpreted in such a narrow or restricted manner so as to wipe out or nullify all cases where the lease deeds have not been executed in favour of the prospecting licence holders who had applied for grant of 47 (2016) 6 SCC20948 (2020) 8 SCC1249 (1986) 2 SCC237- 48 - mining lease prior to 12.01.2015 which were saved by virtue of Section 10A(2)(b). The scheme of MMDR Act as well as the aims and objects of the amendment in 2015, are a clear pointer to the fact that the proviso inserted in 2021 will not affect cases where vested rights have been created prior to 28.03.2021 and the said proviso can apply only to the cases where no such vested rights had been created prior to 28.03.2021. Such an interpretation will have to be given to the proviso by dividing the cases enumerated therein into two categories viz., (i) cases which stand lapsed on account of no vested right having accrued or created prior to 28.03.2021 (ii) cases which do not stand lapsed and are saved on account of vested rights having accrued or created prior to 28.03.2021. Whilst the former category stand lapsed, the latter category continued to remain eligible and their rights to obtain a mining lease and a lease deed continued to subsist and are not affected by the proviso to Section 10A(2((b). In the instant cases, as stated supra, vested rights had already been created in favour of all the writ petitioners and consequently, the amendment vide amendment Act no.16 of 2021 w.e.f. 28.03.2021 is not applicable to the rights of the petitioners to obtain mining leases and lease deeds and on this ground - 49 - also, petitioners are entitled to succeed in the instant cases. (vii) A perusal of the statement of objects and reasons to the amendment Act No.16 of 2021 will indicate that at 4(vi)of the same reads as under:- “to close pending cases of non – auctioned concession holders which have not resulted in grant of mining leases despite passage of considerable time of more than 5 years………..” (viii) It is well settled that the statement of objects and reasons can be used as an extrinsic aid to construction and interpretation of a statutory provision; the aforesaid statement indicates that the intention of the legislature was to close the cases which were pending for more than five years, thereby indicating that it was not the intention of the legislature to close cases which were pending for a period less than five years and such cases which were pending for a period less than five years were not intended to be closed or lapsed on account of passage of time by inserting the proviso to Section 10A(2)(b). (ix) In the instant cases, undisputedly the period of five years had not expired prior to 28.03.2021 since the State Government has submitted its recommendation on 21.07.2017 and lease was sanctioned on 2019 in favour of the respective petitioners, within the aforesaid period of - 50 - five years. Under these circumstances, insofar as the writ petitioners in the present petitions are concerned, since their rights had been recognised and confirmed and vested within a period of five years prior to 28.03.2021, in the light of the statement of objects and reasons to the amendment Act no.16 of 2021, it cannot be said that in the peculiar facts and circumstances, the proviso which came into force on 28.03.2021 is applicable to the petitioners and that their application stand lapsed. Viewed from this angle also, the claim of the petitioners to grant of mining leases and execution of lease deeds deserve to be upheld. (x) Yet another significant factor which has to be taken into account for the purpose of upholding the claims of the petitioners is the complete and total inaction on the part of the State Government and Central Government to ensure that mining leases are granted in favour of the petitioners and lease deeds being executed in their favour. Undisputedly, all the petitioners have done all necessary acts, deeds and things for the purpose of obtaining mining leases and execution of lease deeds in their favour and the delay in granting mining leases and executing lease deeds is not attributable to the writ petitioners; on the other hand, the material on record clearly discloses that the delay - 51 - in doing so is fully and completely attributable to the respondents and in the light of the well settled principle of law that state / executive action ought to be done within reasonable time and that the State cannot take advantage of its own wrong / inaction / delay, the contention of the respondents that the proviso inserted in 2021 takes away the vested rights of the petitioners cannot be countenanced under any circumstances. Under these circumstances also, the proviso inserted w.e.f. 28.03.2021 cannot be relied upon by the respondents to contend that the petitioners are not entitled to grant of mining lease and execution of lease deeds, particularly when the respondents themselves are guilty and responsible of long and inordinate delay in not taking any steps in this regard till 28.03.2021. The oft quoted Maxim “Nullus commodum capere potest de injuria sua propria” (no man can take advantage of his own wrong) which is a primordial tenet of equity and has also been well recognised by the Apex Court in a series of decisions is directly and squarely applicable to the facts of the instant case, particularly when the State owes a duty to act fairly, rationally and reasonably in all its spheres of activity and consequently, the respondents having failed in their legal and statutory duties to take necessary steps pursuant to - 52 - the State Government’s approval of the year 2017 and / or the mining lease sanctioned in 2019, the respondents are not entitled to take advantage of their own mistake / wrong and seek shelter under the amendment of the year 2021 which is not applicable to the facts of the instant case on this ground also. (xi) Similarly, the Maxim, “Actus curiae neminem gravabit” (act of court should prejudice no man / no party should suffer due to the act of court) is also applicable to the facts of the instant case; as stated supra, the right to obtain a mining lease and to get the lease deed executed in their favour had accrued and stood crystallized in favour of the petitioners as on the date of filing the respective writ petitions prior to the amendment Act 16 of 2021 w.e.f. 28.03.2021; viewed from this angle also, delay on the part of the Court in enforcing, implementing and giving effect to the accrued / crystallized rights of the petitioners cannot result in causing prejudice or detriment to the petitioners or their rights; it is therefore clear that the amendment of the year 2021 to the MMDR Act cannot be interpreted or construed in a manner so as to cause prejudice or detriment to the petitioners or their rights, particularly - 53 - when this Court had undisputedly taken seisin of the lis between the parties prior to amendment. (xii) The reliance placed on the decision of the Apex court by the respondents in Hindstone’s case (supra), is not correct in the light of the subsequent judgment of the Apex Court in Bhushan Steel’s case (supra), which was dealing with Section 10A(2)(b), while Hindstone’s case was dealt with other different statutory provisions under the MMDR Act and Rules and obviously, not Section 10A(2)(b) which came into force only on 12.01.2015; so also, the other decisions relied upon by the respondents are clearly distinguishable on facts and the same are not applicable to the facts and circumstances obtaining in the instant writ petitions. (xiii) Insofar as the contention urged by the respondents with regard to grant of prior approval by the Central Government is concerned, grant / non-grant of prior approval has no nexus or connection whatsoever with regard to interpretation of the applicability / non- applicability of the proviso inserted in Section 10A(2)(b) by Amendment Act No.16 of 2021 w.e.f. 28.03.2021; to put it differently, for the purpose of interpretation of the said proviso to Section 10A(2)(b) which only deals with - 54 - satisfaction of the State Government, the issue regarding prior approval of the Central Government is neither germane or relevant to ascertain or adjudicate or decide the applicability of the said proviso to the claims / applications of the petitioners and consequently, even this contention urged by the respondents cannot be accepted.
24. If seen in the light of purposive construction as well as the mischief rule, it is evident that Parliament was wanting to eliminate discretion as well as administrative delay while enacting the 2015 amendment. The MCR, 2016 were enacted pursuant to the said 2015 Amendment and the time period was prescribed to eliminate the administrative delay and as such non-adherence to the time period by the statutory authority cannot be reason to make the citizens suffer as held in Society for Promotion of Education Adventure Sport & Conservation of environment vs CIT50 coupled with the fact that the scheme of Rule 7 whereunder once the State has taken a decision about satisfaction of the conditions under Section 10A(2)(b), the State is rendered functus officio. The public interest if any, is accordingly safeguarded on the State taking a decision 50 (2017) 11 SCC480- 55 - whereafter the matter cannot be allowed to be kept in a limbo.
25. We are also persuaded to take this view keeping in view the objects and reason of the 2021 Amendment Act wherein it has been noticed as under:-
"4. The Mines and Minerals {Development and Regulation) Amendment Bill, 2021, inter alia, provides for the following, namely:- (i)- (v)....... (vii) to close the pending cases of non- auctioned concession holders which have not resulted in grant of mining leases despite passage of a considerable time of more than five years. The existence of these cases is anachronistic and antagonistic to the auction regime. The closure of the pending cases would facilitate the government to put to auction a large number of mineral blocks in the interest of nation resulting in early operationalization of such blocks and additional revenue to the state governments.
26. If the aforesaid objects and reasons and the amended statute is to be interpreted in the manner being sought by the Respondents, it would result in absurdities and anomalies which are to be avoided while interpreting statutes. Apart from the fact that it would never have been the intention of Parliament to punish the applicants whose rights they had originally recognised and protected in the 2015 amendment, for faults and inaction of its own - 56 - officers, such an interpretation inter alia would expose the amendment to challenge as being manifestly arbitrary. As noticed above, the court should resort to an interpretation which renders the provision constitutional and not otherwise. Accordingly, it can be concluded that the Central Government having failed to take a decision within the statutorily prescribed period under Rule 7 of MCR, 2016, the recommendation of the State Government was deemed to be approved for grant of mining lease to the Petitioner and the execution of the mining lease is merely a ministerial act which will be done in accordance with law. Under these circumstances, the said contention of the respondents cannot be accepted.
27. It is settled law that though legislature can always make retrospective law, however the presumption is always that the law is to apply prospectively, unless it has expressly or impliedly been made retrospective. The intention of the legislature has to be gathered from the language of the provisions and external aid can also be resorted to in the form of objects and reasons of the amendment. It is equally well settled that an interpretation - 57 - which would result in absurdities and anomalies should be avoided.
28. The Supreme Court in Shyam Sunder v. Ram Kumar51 discussed in detail the law on the effect of amendment and retrospective applicability of such law, if any. The relevant observations are as under:-
21. It was also argued that the amending Act being retrospective, whatever the right the plaintiff possessed on the date of adjudication of the suit, the same stood extinguished during pendency of appeal and therefore, the plaintiff’s suit must fail. Since both the arguments are overlapping, we shall consider the effect of the decision in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri (AIR1941FC5:
1940. FCR84 slightly later. Before that, it is necessary to consider the effect of substituted Section 15 introduced by the amending Act of 1995 on the substantive rights of the parties. We would now proceed to examine whether the said provision of the amending Act is retrospective as urged by learned counsel for the appellant.
22. In Maxwell on the Interpretation of Statutes, 12th Edn., the statement of law in this regard is stated thus:
"Perhaps no rule of construction is more firmly established than thus - 'that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only'. The rule has, in fact, two aspects, for it, 'involves another and subordinate rule, to the effect that a statute is not to be construed so as to have greater retrospective operation than its language renders necessary’.” 51 (2001) 8 SCC24- 58 - 6. In Francis Bennion's Statutory Interpretation, 2nd Edn., the statement of law is stated as follows:
"The essential idea of a legal system is that current law should govern current activities . Elsewhere in this work a particular Act is likened to a floodlight switched on or off, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws. If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow's back ward adjustment of it. Such, we believe, is the nature of law. Dislike of ex post facto law is enshrined in the United States Constitution and in the Constitution of many American States, which forbid it. The true principle is that lex pros picit non respicit (law looks forward not back). As Willes,J.
said retrospective legislation is 'contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law'.” 24 . In Garikapati Veeraya v. N. Subbiah Chaudhry (AIR1957SC540:
1957. SCR488 this Court observed as thus: (A I R p. 553, para
25) "The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the ef fect of altering the law applicable to a claim in litigation at the time when the Act was passed .
25. In Dayawati v. lnderjit (AIR1966SC1423: (1966) 3 SCR275 it is held thus: (AI R p . 1426, para 10)
"10. Now as a general proposition , it may be admitted that ordinarily a court - 59 - of appeal cannot take into account a new law, brought into existence after the judgment appealed from has been rendered, because the rights of the litigants in an appeal are determined under the law in force at the date of the suit. Even before the days of Coke, whose maxim - a new law ought to be prospective, not retrospective in its operation - is oft-quoted, courts have looked with disfavour upon laws which take away vested rights or affect pending cases. Matters of procedure are, however, different and the law affecting procedure is always retrospective . But it does not mean that there is an absolute rule of inviolability of substantive rights. If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the court of trial as well as the court of appeal must have regard to an intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance.
26. In Hitendra Vishnu Thakur v. State of Maharashtra [(1994) 4 SCC602:
1994. SCC (Cri) 1087]. this Court laid down the ambit and scope of an amending Act and its retrospective operation as follows: (SCC p . 633, para
26) “(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly-defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of - 60 - appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in substantive law but no such right exists in procedural law. (iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."
27 . In K.S. Paripoornan v. State of Kerala [(1994) 5 SCC593 (SCC at p.636) this Court while considering the effect of amendment in the Land Acquisition Act in pending proceedings held thus: (SCC para 67)
"67. In the instant case we are concerned with the application of the provisions of sub-section (1-A) of Section 23 as introduced by the amending Act to acquisition proceedings which were pending on the date of commencement of the amending Act. In relation to pending proceedings, the approach of the courts in England is that the same are unaffected by the changes in the law so far as they relate to the determination of the substantive rights and in the absence of a clear indication of a contrary intention in an amending enactment, the substantive rights of the parties to an action fall to be determined by the law as it existed when the action was commenced and this is so whether the law is changed before the hearing of the case at the first instance or while an appeal is pending. (See Halsbury's - 61 - Laws of England, 4th Edn., Vol. 44, para 922.)
28. From the aforesaid decisions the legal position that emerges is that when a repeal of an enactment is followed by a fresh legislation, such legislation does not affect the substantive rights of the parties on the date of the suit or adjudication of the suit unless such a legislation is retrospective and a court of appeal cannot take into consideration a new law brought into existence after the judgment appealed from has been rendered because the rights of the parties in an appeal are determined under the law in force on the date of the suit. However, the position in law would be different in the matters which relate to procedural law but so far as substantive rights of parties are concerned, they remain unaffected by the amendment in the enactment. We are, therefore , of the view that where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act, such legislation is prospective in operation and does not affect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statute and further a statute is not to be construed to have a greater retrospective operation than its language renders necessary, but an amending Act which affects the procedure is presumed to be retrospective, unless the amending Act provides otherwise. We have carefully looked into the new substituted Section 15 brought in the parent Act by the Amendment Act, 1995 but do not find it either expressly or by necessary implication retrospective in operation which may affect the rights of the parties on the date of adjudication of the suit and the same is required to be taken into consideration by the appellate court. In Shanti Devi v. Hukum Chand [(1996) 5 SCC768 this Court had occasion to - 62 - interpret the substituted Section 15 with which we are concerned and held that on a plain reading of Section 15, it is clear that it has been introduced prospectively and there is no question of such section affecting in any manner the judgment and decree passed in the suit for pre- emption affirmed by the High Court in the second appeal. We are respectfully in agreement with the view expressed in the said decision and hold that the substituted Section 15 in the absence of anything in it to show that it is retrospective, does not affect the right of the parties which accrued to them on the date of the suit or on the date of passing of the decree by the court of first instance. We are also of the view that the present appeals are unaffected by change in law insofar it related to determination of the substantive rights of the parties and the same are required to be decided in the light of the law of pre-emption as it existed on the date of passing of the decree."
"34. During the course of argument, a half-hearted argument was raised that a substituted section in an Act introduced by an amending Act is to be treated having retroactive operation. According to the learned counsel for the appellant, the function of a substituted section in an Act is to obliterate the rights of the parties as if they never existed . This argument is noted only to be rejected . A substituted section in an Act is the product of an amending Act and all the effects and consequences that follow in the case of an amending Act, the same would also follow in the case of a substituted section in an Act.
36. Learned counsel then argued that since the amending Act being a beneficial legislation, retrospectivity is implied in it. Assuming for the sake of argument that right of pre-emption being a feudal or archaic law and therefore, the amending Act is a beneficial legislation meant for the - 63 - general benefit of citizens but there is no such rule of construction that a beneficial legislation is always retrospective in operation, even though such legislation either expressly or by necessary intendment is not made retrospective. In the case of Moti Ram v. Suraj Bhan [AIR1960SC655: (1960) 2 SCR896 it was held thus: [AIR p.658, para 8]. " It is clear that the amendment made is not in relation to any procedure and cannot be characterized as procedural. It is in regard to a matter of substantive law since it affects the substantive rights of the landlord. It may be conceded that the Act is intended to provide relief to the tenants and in that sense is a beneficial measure and as such its provision should be liberally construed; but this principle would not be material or even relevant in deciding the question as to whether the new provision is retrospective or not. It is well settled that where an amendment affects vested rights the amendment would operate prospectively unless it is expressly made retrospective or its retrospective operation follows as a matter of necessary implication . The amending Act obviously does not make the relevant provision retrospective in terms and we see no reason to accept the suggestion that the retrospective operation of the relevant provision can be spelt out as a matter of necessary implication.
29. The aforesaid principles have also been reiterated in GJ Raja vs Tejraj Surana52.
30. Similarly, in Suhas H. Pophale v. Oriental Insurance Co.Ltd53, the Court has observed as under:
52. (2019) 19 SCC46953 (2014) 4 SCC657- 64 -
"45. It has been laid down by this Court time and again that if there are rights created in favour of any person, whether they are property rights or rights arising from a transaction in the nature of a contract, and particularly if they are protected under a statute, and if they are to be taken away by any legislation, that legislation will have to say so specifically by giving it a retrospective effect. This is because prima facie every legislation is prospective (see para 7 of the Constitution Bench judgment in Janardhan Reddy v. State [AIR1951SC124: (1951) 52 Cri LJ391 ) . In the instant case, the appellant was undoubtedly protected as a "deemed tenant" under Section 15-A of the Bombay Rent Act, prior to the merger of the erstwhile Insurance Company with a government company, and he could be removed only by following the procedure available under the Bombay Rent Act. A "deemed tenant" under the Bombay Rent Act, continued to be protected under the succeeding Act, in view of the definition of a "tenant" under Section 7(15)(a )(ii ) of the Maharashtra Rent Control Act, 1999. Thus, as far as the tenants of the premises which are not covered under the Public Premises Act are concerned, those tenants who were deemed tenants under the Bombay Rent Act continued to have their protection under the Maharashtra Rent Control Act, 1999. Should the coverage of their premises under the Public Premises Act make a difference to the tenants or occupants of such premises , and if so, from which date?.
46. It has been laid down by this Court through a number of judgments rendered over the years, that a legislation is not to be given a retrospective effect unless specifically provided for , and not beyond the period that is provided therein. Thus, a Constitution Bench held in Garikapati Veeraya v. N. Subbiah Chaudhry [AI R1957SC540 that in the absence of any thing in the enactment to show that it is to be retrospective, it cannot be so constructed, as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed . In that matter, the Court was concerned with the issue as to whether the - 65 - appellant's right to file an appeal continued to be available to him for filing an appeal to the Andhra Pradesh Hig h Court after it was created from the erstwhile Madras High Court. The Constitution Bench [AIR1957SC540 held that the right very much survived, and the vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.
47. Similarly, in Mahadeolal Kanodia v. Administrator General of W.B. [AI R1960SC936 , this Court was concerned with the retrospectivity of law passed by the West Bengal Legislature concerning the rights of tenants and in para 8 of the judgment the Court held that: [AIR p. 939]. “8.The principles that have to be applied for interpretation of statutory provisions of this nature are well established . The first of these is that statutory provisions creating substantive rights or taking away substantive rights are ordinarily prospective; they are retrospective only if by express words or by necessary implication ....
48. In Amireddi Raja Gopala Rao v. Amireddi Sitharamamma [AI R1965SC1970: (1965) 3 SCR122, a Constitution Bench was concerned with the issue as to whether the rights of maintenance of illegitimate sons of a Sudra as available under the Mitakshara School of Hindu law were affected by introduction of Sections 4, 21 and 22 of the Hindu Adoptions and Maintenance Act, 1956. The Court held that they were not, and observed in para 7 as follows : (AIR p . 1973)
7. ... a statute should be interpreted, if possible, so as to respect vested rights, [ Ed.: The words between asterisks are found in AIR but not in SCR.]. and if the words are open to another construction, such a construction should never be adopted [Ed.: The words between asterisks are found in AIR but not in SCR.].” - 66 - 49. The same has been the view taken by a Bench of three Judges of this Court in /TO v. lnduprasad Devshanker Bhatt [AIR1969SC778 in the context of a provision of the Income Tax Act, 1961, in the matter of reopening of assessment orders. In that matter the Court was concerned with the issue as to whether the Income Tax Officer could reopen the assessment under Sections 297(2)(d)(ii) and 148 of the Income Tax Act, 1961, although the right to reopen was barred by that time under the earlier Income Tax Act, 1922. This Court held that the same was impermissible and observed in para 5 as follows: (AIR pp.781-82)
5. ... The reason is that such a construction of Section 297(2)(d)(ii) would be tantamount to giving of retrospective operation to that section which is not warranted either by the express language of the section or by necessary implication. The principle is based on the well-known rule of interpretation that unless the terms of the statute expressly so provide or unless there is a necessary implication, retrospective operation should not be given to the statute so as to affect, alter or destroy any right already acquired or to revive any remedy already lost by efflux of time.
49. In Arjan Singh v. State of Punjab [AI R1970SC703 this Court was concerned with the issue of date of application of Section 32-KK added into the Pepsu Tenancy and Agricultural Lands Act, 1955. This Court held in para 4 thereof as follows: (AIR p. 705)
"4. It is a well-settled rule of construction that no provision in a statute should be given retrospective effect unless the legislature by express terms or by necessary implication has made it retrospective and that where a provision is made retrospective, care should be taken not to extend its retrospective effect beyond what was intended.
50. In K.C. Arora v. State of Haryana [(1984) 3 SCC281:
1984. SCC (L&S) 520]. this - 67 - Court was concerned with a service matter and with the issue as to whether an amendment in the law could take away the vested rights with retrospective effect. The Court held that such an amendment would be invalid if it is violative of the present acquired or accrued fundamental rights of the affected persons.
51. In K.S. Paripoornan v. State of Kerala [(1994) 5 SCC593: AIR1995SC1012, a Constitution Bench of this Court was concerned with the retrospective effect of Section 23(1-A) introduced in the Land Acquisition Act. While dealing with this provision, this Court has observed as follows: [SCC pp. 634-35, para 64)
"64. A statute dealing with substantive rights differs from a statute which relates to procedure or evidence or is declaratory in nature inasmuch as while a statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect, a statute concerned mainly with matters of procedure or evidence or which is declaratory in nature has to be construed as retrospective unless there is a clear indication that such was not the intention of the legislature. A statute is regarded as retrospective if it operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. By virtue of the presumption against retrospective applicability of laws dealing with substantive rights transactions are neither invalidated by reason of their failure to comply with formal requirements subsequently imposed, nor open to attack under powers of avoidance subsequently conferred. They are also not rendered valid by subsequent relaxations of the law, whether relating to form or to substance . Similarly, provisions in which a contrary intention does not appear neither impose new liabilities in respect of events taking place before their commencement, nor relieve persons from liabilities then existing, and the view that existing obligations were not - 68 - intended to be affected has been taken in varying degrees even of provisions expressly prohibiting proceedings. (See Halsbury's Laws of England, 4th Edn ., Vol. 44, paras 921, 922, 925 and 926)
52. In Gajraj Singh v. STAT [(199
7) 1 SCC650: AIR1997SC412, the Court was concerned with the provisions of the Motor Vehicles Act and repealing of some of its provisions. In para 29 referring to Southerland on Statutory Construction (3rd Edn.) Vol. I, the Court quoted the following observations: (SCC p . 668)
"29. ... '... Effect on vested rights Under common law principles of construction and interpretation the repeal of a statute or the abrogation of a common law principle operates to divest all the rights accruing under the repealed statute or the abrogated common law, and to halt all proceedings not concluded prior to the repeal. However, a right which has become vested is not dependent upon the common law or the statute under which it was acquired for its assertion, but has an independent existence. Consequently, the repeal of the statute or the abrogation of the common law from which it originated does not efface a vested right, but it remains enforceable without regard to the repeal. In order to become vested, the right must be a contract right, a property right, or a right arising from a transaction in the nature of a contract which has become perfected to the degree that the continued existence of the statute cannot further enhance its acquisition.
31. The MMDR Amendment Act 2021 has to be interpreted keeping in view the principles laid down by the Supreme Court in Shyam Sunder v. Ram Kumar and Suhas H. Pophale v. Oriental Insurance Co. Ltd.-. 69 - According to the respondents, all cases under Section 10A(2)(b) would stand covered by the said provision. The argument though attractive at first does not merit acceptance. To accept the said submission would result in completely rendering Section 10A(2)(b) otiose. The said section protected rights of a certain category of persons who would stand vested with rights to obtain the mining concession on satisfaction being arrived at by the State Government. If the contention is accepted then all those cases where the satisfaction of the State has been arrived at, including where previous approval of the Central Government, where necessary, has also been given and the mining lease has not been executed awaiting the grant of statutory permissions like mining lease, environmental clearances, forest clearances etc, the same would also stand lapsed. This would be contrary to the objective being sought to be achieved viz., to avoid delay. The lapsing of such rights and auctioning the lease would not result in immediate production of minerals as even after auction the successful bidder would have to obtain the clearances and permissions in terms of Rule 10 of the Mineral (Auction) Rules, 2015 and considering that t he taking of - 70 - permissions is time consuming a period of 5 years is provided to execute the lease deed. In effect, if all cases which would fall within Section 10A(2)(b) are to be considered to be covered by the proviso then it would necessarily lead to another 5 years or even more taking into account the process of auction would also take some time, before mineral production can start. This would never have been the intention of the legislature or the effect contemplated.
32. Being conscious of the outcome that the legislature desired the term "cases covered under this clause" was qualified by "including pending cases". The use of the word "includes" or "including" though generally used as a means of extension, however this is not an inflexible rule and depending on the context in which it is used, it can also refer to "means".
33. In South Gujarat Roofing Tiles Manufacturers Association and Anr. vs State of Gujarat & Anr.,54 the Supreme Court while considering explanation to entry 22 to Schedule of Minimum Wages Act and considering the context in which it was used arrived at the findings that 54 (1976) 4 SCC601- 71 - the word "includes" had not been used as a word of extension but rather as a word of limitation and in the sense of "means". The said conclusion was arrived at by the Court as though the entry 22 was couched in wide terms as "employment in pottery industry" vide the explanation it was mentioned that the entry would include manufacture of 9 articles of pottery. As such no purpose would have been achieved by use of the term 'includes' as it is generally understood as a word of extension. It would be worthwhile to produce the reasoning of the Hon'ble Court:
"3. The question turns on a true construction of the explanation to entry 22 which says that for the purpose of this entry potteries industry "includes" the manufacture of the nine "articles of pottery" specified therein. Pottery in a wide sense will take in all objects that are made from clay and hardened by fire, from crude earthen pots to delicate porcelain. Mr Patel appearing for the respondent, State of Gujarat, contends that the explanation indicates that potteries industry in Entry 22 is intended to cover all possible articles of pottery including Mangalore pattern roofing tiles. Referring to the well-known use of the word 'include' in interpretation clauses to extend the meaning of words and phrases occurring in the body of the statute, Mr Patel submits that the explanation, when it says that potteries industry "includes" the nine named objects, what is meant is that it includes not only these objects but other articles of pottery as well. It is true that "includes" is generally used as a word of extension, but the meaning of a word or phrase is extended when it is said to include things that would not properly fall within its ordinary - 72 - connotation. We may refer to the often quoted observation of Lord Watson in Dilworth v. Commissioner of Stamps [1899 AC99 105-106 :
79. LT473:
15. TLR61 that when the word "include" is used in interpretation clauses to enlarge the meaning of words or phrases in the statute "these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include."
Thus where "includes" has an extending force, it adds to the word or phrase a meaning which does not naturally belong to it. It is difficult to agree that "includes" as used in the explanation to Entry 22 has that extending force. The explanation says that for the purpose of Entry 22, potteries industry includes the manufacture of the nine "articles of pottery" specified in the explanation. If the objects specified are also "articles of pottery", then these objects are already comprised in the expression "potteries industry". It hardly makes any sense to say that potteries industry includes the manufacture of articles of pottery, if the intention was to enlarge the meaning of potteries industry in any way."
“5............................. Pottery is an expression of very wide import, embracing all objects made of clay and hardened by heat. If it had been the legislature's intention to bring within the entry all possible articles of pottery, it was quite unnecessary to add an explanation. ................................... It seems to us therefore that the legislature did not intend everything that the potteries industry turns out to be covered by the entry. What then could be the purpose of the explanation. The explanation says that, for the purpose of Entry 22, potteries industry "includes" manufacture of the nine articles of pottery named therein. It seems to us that the word "includes" has been used here in the sense of 'means'; this is the only construction that the word can bear in the context. In that sense it is not a word of extension, but limitation; it is exhaustive of the meaning which must be given to potteries industry - 73 - for the purpose of Entry 22. The use of the word "includes" in the restrictive sense is not unknown.
34. Similarly in the present case the term "cases covered under this clause" was sufficient and wide enough to cover all cases however the use of word "including" reflects that the legislature wished to restrict the proviso only to "pending cases" and not all cases to avoid the anomaly it would result in, as noticed above. The word "including" in the proviso to Section 10A(2)(b) as such is used as a limiting word and not as an extension or expansion and is to be understood in the sense of "means" .
35. The intention of the legislature not to cover all cases covered by Section 10A(2)(b) can also be deduced from sub-clause (d) inserted in Section 10A(2) by the very same amending Act . The said sub-clause reads as under:
"(d) in cases where right to obtain licence or lease has lapsed under, clauses (b) and (c), such areas shall be put up for auction as per the provisions of this Act:
" The use of the phrase "in cases where right to obtain licence or lease has lapsed .........such areas" clearly shows that the right does not lapse in all cases covered - 74 - by Section 10A(2)(b) and that certain cases would be saved from the proviso. Otherwise, the legislature would have simply stated that the "areas in cases covered by clause (b) and (c) shall be put up for auction as per the provisions of this Act :
36. This brings us to the next logical question as to which cases would be covered under the term "pending cases". The answer to the said question is also in the language of Section 10A(2)(b) which provides that a person shall have a right for obtaining the mining lease on satisfaction of the State Government of the conditions mentioned in clause (i) to (iv). The relevant extract of the Section reads as under :
"(b) where before the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 a reconnaissance permit or prospecting license has been granted in respect of any land for any mineral, the permit holder or the licensee shall have a right for obtaining a prospecting license followed by a mining lease, or a mining lease, as the case may be, in respect of that mineral in that land, if the State Government is satisfied that the permit holder or the licensee, as the case may be- " Therefore, where the satisfaction of the State Government has been arrived at, the State is rendered functus officio and the right stands crystallized. The proviso seems to have an effect of lapsing the right to - 75 - obtain, which could only be referable to cases where the satisfaction is not yet/yet to be arrived at and not to cases where satisfaction is already arrived at by the State Government.
37. Further the term “lapse" as used in the proviso to Section 10A(2)(b)is generally used for reverting .of a right from a party which has failed to fulfill its obligations or conditions under which such right was given. The said term "lapse" is also used in Section 4A(4) of the MMDR Act where again the right lapses on failure of the lessee to start mining operations. Parliament has employed the said term also in the Land Acquisition Act, 1894 and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 whereunder on the failure of the statutory authority to compete the acquisition process within the statutorily prescribed time period, the acquisition proceedings lapse. The said term is defined in Black's Law Dictionary (8th edn, 2004) as under:- "the termination of a right or privilege because of failure. to exercise it within some time limit or because the contingency has occurred or not occurred" - 76 - 38. Therefore, keeping in view the aforesaid principles and the use of specific terms, it is evident that the legislature was desirous of applying the proviso to only a certain class of persons within Section 10A(2)(b) viz ., those who had either till date not completed the reconnaissance or prospecting operations despite 5 years from 2015, which was the outer limit provided by the Act under unamended Section 7 or those whose applications were yet to be processed and the State had not arrived at the satisfaction. Any other interpretation would do violence to the language and intention of the legislature . It would never have been the intention of the legislature to punish a party who had complied with the law or to allow the executive to defeat the rights of parties by delaying performing their duties.
39. We are also persuaded to interpret the proviso as aforesaid on the well recognized principles of effects of proviso as propounded in a recent constitutional bench judgment of the Hon'ble Supreme Court in Indore Development Authority v. Manoharlal55:
"192. A proviso has to be construed as a part of the clause to which it is appended. A proviso is added 55 (2020) 8 SCC12- 77 - to a principal provision to which it is attached. It does not enlarge the enactment. In case the provision is repugnant to the enacting part, the proviso cannot prevail ............ :
194. ................ R. v. Dibdin {R. v. Dibdin, 1910 P57(CA)]., held as under : (P p .
125) "The fallacy of the proposed method of interpretation is not far to seek. It sins against the fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso. It treats it as if it were an independent enacting clause instead of being dependent on the main enactment. The courts ... have refused to be led astray by arguments such as those which have been addressed to us, which depend solely on taking words absolutely in their strict literal sense, disregarding the fundamental consideration that they are appearing in the proviso."
"198. In keeping with the ratio in the aforesaid decisions, this Court is of the considered view that the proviso cannot nullify the provision of Section 24{1){b ) nor can it set at naught the real object of the enactment, but it can further by providing higher compensation, thus dealing with matters in Section 24 (2) ............
40. If the legislature was desirous of revoking the said vested rights, the amendment would have been made to the main provision or the said provision could have been omitted with retrospective effect. Having not done so and rather having opted the legislative tool of a proviso being inserted to the main provision, the well settled principles of the object and purpose of a proviso would come into play. The Respondents have - 78 - also relied on a large number of judgments with regard to effect of a proviso, however none of the said judgments support the view that the proviso can have the effect of nullifying the main provision itself, as such the present judgment is not being burdened with the said judgments which have otherwise been considered by the constitution bench in Indore Development (supra).
41. As the proviso does not take away vested rights with retrospective effect, the writ petition which has been filed by the petitioner claiming that the right under Section 10A(2)(b) of the Mines and Minerals (Development and Regulation) Act, 1957 as already fructified and being a vested right, has to be proceeded with based on the law as it stood then and taken to its logical conclusion.
42. In view of the aforesaid facts and circumstances, we are of the considered opinion that the provisos to Section 10A(2)(b) of the MMDR Act, 1957 as inserted vide Amendment Act No.16 of 2021 w.e.f. 28.03.2021 are not applicable to the applications, claims etc., of the petitioners who are entitled to obtain mining leases and lease deeds - 79 - from the State Government without reference to the said amendment or the proviso inserted thereby.
43. We accordingly answer the point formulated above in favour of the petitioners.
44. In the result, we pass the following:-
ORDER(i) W.P.No.1920/2021 is allowed. The respondent No.1 as well as respondent Nos.2 and 3 are directed to issue the necessary orders for grant of lease under sub- clause (9) of Rule 7 of Mineral Concession Rule, 2016 within a period of 6 weeks whereafter the petitioner will be entitled to execution of the lease deed on satisfying the conditions stipulated in clause (10) of Rule 7 of Mineral Concession Rule, 2016. (ii) W.P.No.8807/2020 is hereby allowed and the respondents are directed to take necessary steps to execute Mine Development and Production Agreement and Mining Lease in favour of the petitioner and do all necessary acts, deeds and things pursuant thereto in accordance with law without reference to the provisos to Section 10A(2)(b) of the MMDR Act, 1957 as inserted vide Amendment Act No.16 of 2021 w.e.f. 28.03.2021 as - 80 - expeditiously as possible and within a period of six weeks from the date of receipt of a copy of this order. (iii) W.P.No.17402/2021 is hereby allowed and the impugned order / letter dated 01.06.2021 passed / issued by the 3rd respondent is hereby quashed. (iv) W.P.No.5973/2021 is hereby allowed and the respondents are directed to take necessary steps to execute Mine Development and Production Agreement and Mining Lease in favour of the petitioner and do all necessary acts, deeds and things pursuant thereto in accordance with law without reference to the provisos to Section 10A(2)(b) of the MMDR Act, 1957 as inserted vide Amendment Act No.16 of 2021 w.e.f. 28.03.2021 as expeditiously as possible and within a period of six weeks from the date of receipt of a copy of this order. Sd/- CHIEF JUSTICE Sd/- JUDGE Srl/SJ