IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 2027 of 2016 --- M/s Shah Brothers --- –- --- Petitioner Versus 1. The Union of India through the Ministry of Mines and Steel 2. The State of Jharkhand through the Principal Secretary, Department of Mines and Geology 3. The Joint Secretary, Department of Mines and Geology, Government of Jharkhand 4. The Deputy Commissioner, West Singhbhum, Chaibasa 5. The District Mining Officer, West Singhbhum, Chaibasa 6. The Assistant Mining Officer, West Singhbhum, Chaibasa --- Respondents --- CORAM:The Hon’ble Mr. Justice Aparesh Kumar Singh For the Petitioner: M/s Amarendra Sharan, Sr. Advocate, Krishanu Ray, Advocate For the Resp - State: Mr. Ajit Kumar, A.A.G. For the Resp – UOI: Mr. Rajiv Sinha, ASGI --- 02/ 21.04.2016 Learned counsel for the petitioner submits that surviving defects have already been removed.
2. Petitioner was granted mining lease of Iron Ore over an area of 233.99 Hectare in Karampada Reserve Forest in West Singhbhum district with effect from 10.07.1972 for a period of 30 years (Annexure-1). Twelve month before expiry of the period of lease, it applied for first renewal on 08.07.2001 in terms of Rule 24(A) (1) of Mineral Concession Rules, 1960, which however, remained pending till Mines and Minerals (Development and Regulation) Amendment Act, 2015 was enacted. The Ordinance had come into force with effect from 12.01.2015 before the Amendment Act was passed by the Parliament. Prior to that, on 18.07.2014, Rules 24A(6) of Mineral Concession Rules, 1960 was amended which provided for deemed extension for a period of two years with effect from 18.07.2014 of such cases pending for first renewal of lease deed where renewal application had been made within time. Petitioner's application for renewal of lease has been rejected by Annexure-19 order dated 01.04.2016 contained in Memo No. 882 passed by the Department of Industries, Mines & Geology, Government of Jharkhand. Consequent thereto, petitioner has been asked to hand over possession of the lease area to Mines Department by letter no. 445 dated 05.04.2016 (Annexure-20) issued by the Deputy Commissioner, West Singhbhum, Chaibasa, failing which steps would be taken to 2. take possession of the lease hold property by the State Authorities.
3. In the background of these relevant facts, learned Senior Counsel for the petitioner Mr. Amarendra Sharan submits that the impugned order rejecting the application of the petitioner for renewal of lease, is bad in law on the following counts: (i) Section 4(A)(1) of Mines and Minerals (Development and Regulation) Amendment Act, 1957 confers power on the Central Government which may request the State Government to make premature termination of such mining lease. There is no such request or direction of the Central Government to the State Government in the instant case. (ii) Relying upon the recent judgment rendered by the Hon'ble Supreme Court in Writ Petition (Civil) No. 114/2014 (Common Cause vs. Union of India & others) and Writ Petition (Civil) No. 194/2014 (Prafulla Samantra and another vs. Union of India & others) dated 04.04.2016, it is submitted that the petitioner's original lease would be deemed to be extended for a period of 50 years i.e. up to 09.07.2022. Sub Paragraph-iv and vi of Paragraph-32 of the judgment has been relied upon, which is quoted hereunder: “ Based on the considerations recorded above, we summarise our conclusions as under: (iv) A leaseholder who has moved an application for “first renewal” of the original mining lease, at least twelve months before the original lease was due to expire, and such application has not been rejected, will be considered to be a valid leaseholder having a subsisting right to carry on mining operations, till the expiry of two years after 18.7.2014, i.e., up to 17.7.2016, as is apparent from a conjoint reading of the unamended and amended Rule 24A of the Mineral Concession Rules. Such leaseholder would have the benefit of sub- sections (5) and (6) of Section 8A of the amended MMDR Act. (vi) Consequent upon the amendment of Section 8A of the MMDR Act, the regime introduced through sub-sections (5) and (6) thereof, provides for three contingencies where benefits have been extended to leaseholders whose lease period had earlier been extended by a renewal. Firstly, for a leaseholder whose renewal period had expired before 12.1.2015, and the leaseholder had moved an application for renewal at least twelve months before the leaseholder’s existing lease was due to expire, and whose application has 3. not been considered and rejected, the lease period would stand extended up to 31.3.2030/31.3.2020 (in the case of captive/non- captive mines, respectively). Additionally, a leaseholder whose period of renewal would expire after 12.1.2015, but before 31.3.2030/31.3.2020, the lease period would stand extended up to 31.3.2030/31.3.2020 (in the case of captive/non-captive mines, respectively). Secondly, where the renewal of the mining lease already extends to a period beyond 31.3.2030/31.3.2020 (in the case of captive/non-captive mines, respectively), the lease period of such leaseholders, would continue up to the actual period contemplated by the renewal order. Thirdly, a leaseholder would have the benefit of treating the original lease period as of fifty years. Accordingly, even during the renewal period, if the period of the mining lease would get extended (beyond the renewal period) by treating the original lease as of fifty years, the leaseholder would be entitled to such benefit. Out of the above three contingencies provided under sub- sections (5) and (6) of Section 8A, the contingency as would extend the lease period farthest, would enure to the benefit of the leaseholder.” (iii) It is submitted that all statutory clearances have been obtained by the petitioner. Clearance certificate of Indian Bureau of Mines is contained at Annexures-4 to 8 and is extended up to 31.03.2019. Environmental Clearance has also been granted by the Ministry of Environment and Forests, Government of India vide orders contained at Annexure-9 and 10 dated 23.01.2007 and 19.07.2013 respectively. It is further added that only after clarification made for obtaining environmental clearance under the Environment Protection Act, 1986 by the Apex Court in 2004, petitioner applied on 03.01.2006 which was granted on 21.01.2007 and has been extended time to time. It is further submitted that forest clearance has been granted by the competent authority by order contained at Annexure-11 dated 19.05.2005. Petitioner has also complied with the requirements of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Annexure-12) as per the certificate dated 12.01.2011 issued by the competent authority. It is asserted that the finding recorded in the impugned order relating to violation of terms and conditions of lease and non-obtaining of statutory clearance, is therefore incorrect on the face of record.
4. Learned counsel has submitted that the order impugned is wholly without 4. jurisdiction. Petitioner is a subsisting lessee in terms of Mines and Minerals (Development and Regulation) Amendment Act, 2015, as interpreted by the Apex Court in the judgment rendered in the case of Common Cause (Supra). Having complied with all statutory requirements, should not be restrained from carrying mining operations which caters to a running industry and captive power plant. It is also stated that the State Government while taking a decision in respect of renewal of two such lessees namely, M/s Rungta Limited and M/s Vijay Kumar Ojha, has granted extension of mining lease. Petitioner is in a better position as it has complied all terms and conditions of lease deed and also responded to the allegations contained in the show-cause notice with categorical replies. It is further submitted that as per the terms and conditions of lease deed itself, a minimum period of three months is required to be granted to a lessee even assuming that rejection of renewal application is valid in law. The consequent order to hand over possession at Annexure-20 dated 05.04.2016, is also bad in law on those counts. Petitioner has a prima facie case and balance of convenience also lies in its favour. It would be the petitioner who will suffer irreparable loss if mining operations are shut down by virtue of the impugned orders passed wholly without jurisdiction.
5. Learned A.A.G. Mr. Ajit Kumar, appearing on behalf of the State, has with all fairness, submitted that after the pronouncement rendered by the Apex Court in Common Cause case (Supra) on 04.04.2016, rejection of application for first renewal of the petitioner was wholly out of place. Petitioner's application for renewal was not rejected before enforcement of Mines and Minerals (Development and Regulation) Amendment Act, 2015 which came into effect from 12.01.2015. He however, submits that the requirement of statutory clearances, as contemplated under section 8(A)(6) of Mines and Minerals (Development and Regulation) Amendment Act, 2015 and observations made by the Apex Court at Para-27 of the judgment in Common Cause case (Supra), would also have to be taken into account while dealing with the assertion of the petitioner that it has obtained all 5. statutory clearances.
6. I have considered the submissions of the parties at some length. From the relevant pleadings on record and submissions of the parties, it appears that there are no direction from the Central Government in terms of section 4(A) of MMDR, Act, 1957 for premature termination of lease of the petitioner. Provisions of Amended Act, 2015 specifically section 8(A), as interpreted in the judgment rendered in the case of Common Cause (Supra) by the Apex Court, also leads to a prima facie view that the petitioner being an applicant for first renewal and having made its application on 08.07.2001 within statutory time prior to expiry of the original lease, is entitled to treat its lease to continue for a period of 50 years from the date of original lease as also observed in sub para-vi of para-32 of the judgment in the case of Common Cause (Supra). Petitioner has categorically asserted through averments made in the writ petition and supporting documents enclosed from Annexures-4 to 12 that all statutory clearances have been obtained by it. Petitioner has been able to make out a prima facie case for stay of the impugned orders. In such circumstances, impugned orders dated 01.04.2016 (Annexure-19) and 05.04.2016 (Annexure-20) are stayed.
7. Counsel for the respondents is allowed two weeks time to seek instructions on the averments made in the writ petition and also to the assertion of the petitioner relating to compliance of all statutory clearances. Respondent would file their counter affidavit well within time so that petitioner, if so chooses, may respond by the next date.
8. As prayed for on behalf of the learned counsel for the State, list the case accordingly on 05.05.2016. (Aparesh Kumar Singh, J) Ranjeet/