1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 5642 of 2014 Steel Authority of India Limited, represented through General Manager (Liaison), Mr. Debananda Marndi, S/o Late Balai Marndi, R/o Quarter No. C/1, Shyamali Colony, Doranda, Ranchi, Jharkhand ... … Petitioner Versus 1. The State of Jharkhand through its Chief Secretary, Jharkhand, Ranchi 2. The Secretary, Department of Mines & Geology, Government of Jharkhand, Ranchi 3. The Deputy Secretary, Department of Mines & Geology, Government of Jharkhand, Ranchi … Respondents CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioner : Mr. Maninder Singh, ASGI Mr. Ajay Sharma, Advocate Mr. Jagmohan Sharma, Advocate Mr. Indrajit Sinha, Advocate Mr. Bibhash Sinha, Advocate Mr. Ajay Kumar Sah, Advocate Mr. Suraj Singh, Advocate For the State : Mr. Jai Prakash, AAG Mrs. Debolina Sen Hirani, J.C. to AAG Order No. 08 Dated: 13.01.2015 In view of order passed in I.A. No. 6641 of 2014, Mr. Maninder Singh, the learned Solicitor General of India advanced arguments on behalf of the petitioner seeking a direction from the Court for commencing mining operations in Dhobil Mining Lease in Manoharpur Mines, Chiria, West Singhbhum. It is submitted that vide letter dated 22.10.2014 an order in terms of Section 8(3) of Mines and Minerals (Regulation and Development) Act, 1957 has already been passed by the respondentState of Jharkhand. The only dispute between the parties is, whether the State of Jharkhand can impose the conditions incorporated in the said letter dated 22.10.2014 and 2 therefore, there is no reason why the petitioner should be prevented from commencing mining activities in Dhobil Mining Lease in Manoharpur Mines also. It is further submitted that in another Writ Petition being W.P.(C) No. 5368 of 2014 which was filed by the petitionerSteel Authority of India Limited with respect to Durgaiburu Mining Lease of Gua Ore Mines, has been allowed by this Court vide order dated 13.11.2014 and the petitioner has been permitted to start mining operations. The present writ petition is identical to the earlier writ petition in all respects except, on two counts. First, in the Writ Petition being W.P.(C) No. 5368 of 2014, a decision in terms of Section 8(3) of the MMDR Act, 1957 was taken after an interim mandamus was issued by this Court whereas, in the present case, letter dated 22.10.2014 itself contains a decision of the State Government in terms of Section 8(3) of the MMDR Act, 1957. Secondly, in W.P.(C) No. 5640 of 2014 which was filed challenging letter dated 22.10.2014 issued with respect to Durgaiburu Mining Lease, the alleged amount of penalty was quantified whereas, in the present writ petition, no amount has been mentioned. It is further submitted that the order passed by this Court in W.P.(C) No. 5368 of 2014 though has been challenged by the State of Jharkhand, vide order dated 11.12.2014 in I.A. No. 6222 of 2014 seeking stay of order passed in W.P.(C) No. 5368 of 2014, the Hon'ble Division Bench dismissed the said application and thus, has affirmed that the petitioner has a prima facie case and balance of convenience also lies in favour of the petitioner and if, order dated 13.11.2014 in W.P.(C) No. 5368 of 2014 is stayed, it would cause irreparable loss and injury to the petitionercompany. The learned Additional Solicitor General of India refers to paragraph nos. 15 and 16 in order dated 11.12.2014 of the Hon'ble Division Bench and submits that it is a fit case for grant of interim relief to the petitioner, permitting the petitioner to commence mining 3 operations in Dhobil Mining in Manoharpur Mines, Chiria, West Singhbhum. 2. In opposition, Mr. Jai Prakash, the learned Additional AdvocateGeneral submits that in “Goa Foundation”, the Hon'ble Supreme Court has held that all mining carried out without grant of second or subsequent renewals, are illegal. Relying on a decision in “Karnataka Rare Earth & Anr. Vs. Senior Geologist, Department of Mines and Geology & Anr.” (2004) 2 SCC 783, the learned Additional AdvocateGeneral submits that the petitionercompany cannot claim any right over the land and mines belonging to the State. Without grant of mining lease, the petitioner cannot insist to commence mining operations in Manoharpur Mines. As held by the Hon'ble Supreme Court, there is no concept of deemed renewal in cases of second or subsequent renewal of mining lease and therefore, if an allottee is permitted to commence mining without an express order, such mining would be illegal. The learned Senior Counsel further submits that so long as the petitioner does not accept the conditions imposed vide letter dated 22.10.2014, it cannot be permitted to commence mining operations. Moreover, the petitioner has not challenged the vires of Rule 24A(6) of the Mineral Concessions Rules, 1960. On these grounds, the prayer for a direction to the respondentState of Jharkhand for issuing an express order and permission to the petitionercompany to start mining operations in Dhobil Mining Lease in Manohar Mines, are opposed. 3. In reply, the learned Additional Solicitor General of India submits that letter dated 22.10.2014 does not refer to Rule 24A(6) of the Mineral Concessions Rules, 1960 and therefore, the petitioner is not required to challenge the said Rule. In L.P.A. No. 487 of 2011, the Hon'ble Division Bench has already held that prima facie, it appears that the State of Jharkhand has no objection if the mining activities are carried out by the 4 petitionercompany. Mere filing of the Special Leave Petition against order dated 11.12.2014 of the Hon'ble Division Bench is of no consequence. A Special Leave Petition is not a matter of right and only when the Hon'ble Supreme Court deems fit, leave is granted to the petitioner whereas, a L.P.A. is a statutory right of appeal in which the respondentState of Jharkhand has failed to establish a prima facie case in its favour. It is further submitted that the petitionercompany is a company of National importance and the observation of the Hon'ble Division Bench that, “it is a Public Sector Undertaking wholly owned, managed and controlled by Central Government and not a fly by night company, being in existence since more than half a century”, is of utmost significance. 4. I have carefully considered the submissions of the counsel for the parties and perused the documents on record. 5. Briefly stated, the petitionerSteel Authority of India Limited approached this Court in W.P.(C) No. 5368 of 2014 seeking a direction upon the respondentState of Jharkhand for issuance of an order in terms of Section 8(3) of the Mines and Minerals (Regulation and Development) Act, 1957, in respect of Durgaiburu Mining Lease of Gua Ore Mines. Vide order dated 16.10.2014 an interim mandamus was issued directing the respondentState of Jharkhand to take a decision on application seeking grant of second renewal of Durgaiburu Mining Lease of Gua Ore Mines. And consequently, the State of Jharkhand issued letter dated 22.10.2014 which contained certain conditions. Objecting to the conditions contained in letter dated 22.10.2014, the petitioner preferred another Writ Petition being W.P.(C) No. 5640 of 2014. Finally, vide order dated 13.11.2014, the petitioner was directed to submit an undertaking and a direction was issued to the respondentState of Jharkhand to issue an express order in terms of Section 8(3) of the MMDR Act, 1957. 5 The petitioner was permitted to start mining operations, 7 days after submission of undertaking as directed by this Court. The petitioner has preferred the present writ petition challenging the conditions imposed in letter dated 22.10.2014 which also contains, conditions similar to the conditions imposed in respect of Durgaiburu Mining Lease of Gua Ore Mines. Now, the petitioner has prayed for an interim direction to the respondent State of Jharkhand for issuing an express order in terms of Section 8(3) of MMDR Act, 1957 and permitting the petitioner to start mining operations in Manoharpur Mines. 6. It is not in dispute that in so far as, the prayer for issuing an express order in terms of Section 8(3) of MMDR Act, 1957 is concerned, the present writ petition is similar to W.P.(C) No. 5368 of 2014. The respondentState of Jharkhand has admitted in its counteraffidavit dated 26.11.2014 that the State Government has taken a decision under Section 8(3) of MMDR Act, 1957. Paragraph no. 10 of the counteraffidavit is extracted below:
“10. That in view of the aforesaid facts and subsequent development certain conditions were imposed by the State Government while taking decision under Section 8(3) of the Act, 1957.” 7. The petitioner has categorically stated that it has obtained all requisite permissions and environmental clearances and this fact has been admitted by the respondentState of Jharkhand in its counteraffidavit. It is also not in dispute that the petitionercompany is the biggest manufacturer of steel in the country and in view of the operational technicalities involved in running the plant, the plant of the petitioner must continue continuously. The petitionercompany has expressed apprehension that if it is not permitted to start mining operations, due to shortage of iron ore, the plant of the petitionercompany may 6 suffer operational difficulties and serious loss. It has been noticed in W.P.(C) No. 5368 of 2014 that thousands of families are dependent on the continued operation of the plant of the petitionercompany. The petitionercompany has paid about Rs. 2,000 crores to the State of Jharkhand in the last 5 years, on account of royalty, cess, VAT and other taxes. It is also not in dispute that the petitionercompany is a Central Government Public Sector Undertaking having its own national significance and its continued operation is not only in public interest but also in the national interest. 8. It is well settled that before an interim order is passed by the Court, the Court is required to consider the question as regards existence of a prima facie case, balance of convenience as also the question as to whether the writ petitioner would suffer an irreparable injury, if the interim order sought for is refused. In W.P.(C) No. 5368 of 2014, while issuing an interim mandamus on 16.10.2014, this Court has found a strong prima facie case in favour of the petitioner and finally, vide order dated 13.10.2014, the writ petition was allowed. Though, the challenge to the conditions sought to be imposed vide letter dated 22.10.2014 is yet to be adjudicated by the Hon'ble Division Bench, it may not be out of context to notice that in “Bharat Coking Coal Limited Vs. State of Bihar & Ors.”, (1990) 4 SCC 557, the Hon'ble Supreme Court has held that, “By Section 2 of the Act, the Parliament has declared that it is expedient in public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent provided in the Act. In view of the parliamentary declaration as made in Section 2 of the Act, the State Legislature is denuded of its legislative power to make any law with respect to the regulation of mines and the development of minerals to the extent as provided by the Act”. In “State of W.B. Vs. Kesoram Industries Ltd. & Ors.”, 7 (2004) 10 SCC 201, a Constitution Bench of Hon'ble Supreme Court has observed that, “the effect is that no State Legislature shall have power to enact any legislation touching: (i) the regulation of mines, (ii) the development of minerals, and (iii) to the extent provided by Act 67 of 1957”. In W.P.(C) No. 5368 of 2014, this Court has observed as under: “10. A conjoint reading of Section 8(3), Rule 24A and the legislative intent running through the scheme of the MMDR Act, 1957, leaves no manner of doubt that once the State Government forms an opinion that it is in the interest of mineral development that an existing mining lease should be renewed, the State Government would be under a statutory duty to pass an express order under Section 8(3) of the MMDR Act, 1957. It is not disputed that in letters dated 20.08.2014 and 22.10.2014, the State Government has recorded its satisfaction that it is in the interest of mineral development to authorise renewal of the existing lease of the petitioner's company.”
9. In the counteraffidavit and during the course of hearing, the main objection raised on behalf of the respondentState of Jharkhand revolves around the judgment in “Goa Foundation” case and subsequent amendment in Rule 24A(6) of the Mineral Concessions Rules, 1960. From a reading of judgment in “Goa Foundation” case, I do not find any indication that unless a lessee unconditionally accepts unilateral conditions imposed by the lessor, no express order in terms of Section 8(3) of MMDR Act, 1957 can be issued. Moreover, I find that once the State Government has formed an opinion and taken a decision in terms of Section 8(3) of MMDR Act, 1957, the State Government cannot withhold issuance of an express order permitting the lessee to start mining operations however, such order may be subject to the conditions imposed by the lessor, in accordance with law. As noticed above, the validity of the conditions imposed by the 8 respondentState of Jharkhand vide letter dated 22.10.2014 is pending adjudication before the Hon'ble Division Bench and therefore, I am of the opinion that pending adjudication in W.P.(C) No. 5640 of 2014, an interim mandamus is required to be issued to the respondentState of Jharkhand for issuing an express order in terms of Section 8(3) of MMDR Act, 1957. In so far as, challenge by the respondentState of Jharkhand to order dated 13.11.2014 in W.P.(C) No. 5368 of 2014 is concerned, observation of the Hon'ble Division Bench can usefully be noticed. In paragraph nos. 15 and 16, the Hon'ble Division Bench has observed as under: “15. The learned Single Judge has already stated in the impugned judgment/order that the writ petitioner shall give an undertaking to the State of Jharkhand that it would abide by the decision, rendered in W.P.(C) No. 5640 of 2014. Thus, in our view all care has been taken by the learned Single Judge of the conditions attached with the renewal of mining lease and that pursuant to the said direction the writ petitioner has also given an undertaking. It is a Public Sector Undertaking wholly owned, managed and controlled by Central Government and not a fly by night company, being in existence since more than half a century. 16. Looking to the conditional renewal order of mining lease, prima facie, it appears to us that the State of Jharkhand has no objection, if the mining activities are being carried out by the writ petitioner, but, it must be subject to certain conditions and the main condition is about certain amount, to be paid by the writ petitionercompany to the State of Jharkhand. As stated above, these conditions have been challenged by the writ petitioner in W.P.(C) No. 5640 of 2014. Thus, prima facie, the dispute revolves around the conditions attached with the renewal of lease and out of these conditions, one is about the payment of money by the writ petitionercompany to the State of Jharkhand. However, we, in the present 9 appeal, are concerned with the mining activities, to be carried out by the writ petitioner.”
10. It is apparent that the Hon'ble Division Bench has found no prima facie case in favour of the respondentState of Jharkhand which sought stay of order dated 13.11.2014 in W.P.(C) No. 5368 of 2014. The Hon'ble Division Bench has finally observed thus, “17. Thus, looking at the present case, in the aforesaid factual matrix and the documents available on record, there appears to be no prima facie case in favour of the appellant, so far as present interlocutory application is concerned. The balance of convenience is also not tilting towards the appellants. Thus, no irreparable loss will be caused to the appellants, if the stay, as prayed for, is not granted.”
11. In “Morgan Stanley Mutual Fund Vs. Kartick Das”, (1994) 4 SCC 225, the Hon'ble Supreme Court has held that, the factors which should weigh with the Court in the grant of exparte injunction are, (i) whether irreparable or serious mischief will ensue to the plaintiff, and (ii) whether the refusal of exparte injunction would involve greater injustice than the grant of it would involve. In the present case, the respondentState of Jharkhand has not brought on record any material to indicate that the grant of interim order as sought by the petitionerSteel Authority of India Limited would cause injustice or irreparable loss to the respondentState. As noticed above, the respondentState of Jharkhand has already taken a decision in terms of Section 8(3) of MMDR Act, 1957 and whether it is entitled for recovering penalty as indicated in letter dated 22.10.2014 or not, is a matter pending adjudication before the Hon'ble Division Bench and thus, the respondentState of Jharkhand cannot contend irreparable loss and injury on the plea of pending adjudication of conditions imposed in letter dated 10 22.10.2014 and the respondentState of Jharkhand cannot withhold issuance of an express order in terms of Section 8(3) of MMDR Act, 1957. With reference to letter dated 20.08.2014 written by the respondentState of Jharkhand, the Hon'ble Division Bench has observed that, looking to the tenor of the letter it appears that principally the State of Jharkhand has no objection in extending the lease period and that the State of Jharkhand is ready to renew the mining lease but imposing certain conditions. The petitionercompany has pleaded that by not permitting the petitioner to start mining operations, the respondentState of Jharkhand has acted contrary to the national interest as also in its own interest in as much as, it would be losing revenue of several crores which the petitioner would be paying by way of royalty, VAT, cess and other taxes. In “Deoraj Vs. State of Maharashtra & Ors., (2004) 4 SCC 697, the Hon'ble Supreme Court while dealing with grant of interim relief which may tantamount to granting financial relief has observed thus,
“12. …....... In such cases the availability of a very strong prima facie case — of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases..…...........”
12. In the present case, as noticed above, in W.P.(C) No. 5368 of 2014, this Court vide order dated 13.11.2014 directed the respondentState of Jharkhand to issue an express order in terms of Section 8(3) of MMDR Act, 1957. I find that the respondentState of Jharkhand has failed to make out a case for withholding an interim order in favour of the petitioner whereas, the petitioner has established a strong prima facie case in its favour. The Hon'ble Division Bench while hearing application 11 seeking stay of order passed in W.P.(C) No. 5368 of 2014 has held that there appears to be no prima facie case in favour of the State of Jharkhand and the balance of convenience is also not tilting towards the State of Jharkhand. The petitioner has pleaded that it has obtained all necessary clearances and though it submitted its application on 04.03.1997 seeking second renewal of the mining lease however, the same is still pending before the State of Jharkhand and, in the meantime, the respondentState of Jharkhand permitted the petitioner to continue mining operations. The only plea taken by the respondentState of Jharkhand for suspending the mining operations is with reference to the judgment of Hon'ble Supreme Court in “Goa Foundation” and subsequent amendment in the Mineral Concessions Rules, 1960. I am of the opinion that the petitioner has made out an exceptional case for issuance of an interim order in its favour. The technical plea raised by the respondentState of Jharkhand cannot be accepted in the aforesaid facts and circumstances of the case. In “Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & Ors. Vs. V.R. Rudani & Ors.” (1989) 2 SCC 691, the Hon'ble Supreme Court has observed as under; “22. …..........The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available “to reach injustice wherever it is found”. Technicalities should not come in the way of granting that relief under Article 226. …............” 13. In view of the aforesaid facts and circumstances, the petitioner satisfies the triple test of prima facie satisfaction, balance of convenience and irreparable loss for grant of an interim order. Since, the respondentState of Jharkhand has taken 12 a decision in terms of Section 8(3) of MMDR Act, 1957, I am of the opinion that the petitioner should not be restrained further, from starting its mining operations. Accordingly, the petitioner is directed to submit an undertaking similar to the undertaking filed in W.P.(C) No. 5368 of 2014. The learned Additional Solicitor General of India submits that the petitioner is ready and willing to comply with any other or further conditions imposed by this Court. Accordingly, I hereby direct the respondentState of Jharkhand to issue an express order in terms of Section 8(3) of MMDR Act, 1957, forthwith. The petitioner after submitting the undertaking and upon furnishing a copy of this order to the respondent no. 1 and respondent no. 4, may start its mining operations. The operation of order dated 04.09.2014 shall remain stayed, till the currency of this order.
14. Post the matter after decision in W.P.(C) No. 5640 of 2014. (Shree Chandrashekhar, J.) Manish/A.F.R.