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Madhya Pradesh High Court · body

2010 DIGILAW 587 (MP)

Balram Tiwari v. State of M. P.

2010-05-20

P.K.JAISWAL, S.R.ALAM

body2010
ORDER P.K. Jaiswal, J. 1. The writ Petitioner who is a journalist by profession has filed this public interest litigation against the illegal activities being carried out by the Mining Department of the State and praying for cancellation of trade quarry and quarry lease granted to the Respondent No. 10 and 11, on the plea that the trade quarry and quarry lease was granted for extraction of minor minerals whereas the mineral extracted from the said quarries is dolomite which is a major mineral and they are instead of minor mineral extracting major mineral and supplying the said material to the Railway Department. The State Government is losing revenue by way of royalty and to prevent the said loss of royalty to the State exchequer, the quarry lease of Respondents No. 10 and 11 be cancelled and appropriate action be taken for realizing the difference of royalty in accordance with law and the action be taken against the erring authorities who have granted trade quarry and quarry lease to them. 2. The facts briefly stated are that the Respondent No. 6, Collector Katni in auction granted trade quarry to Respondent No. 10 over an area of 2.00 hectares of survey No. 758 (part of village Sallaiya, Tehsil Murwara District Katni) for extraction of stone/Gitti for a period of one year commencing from 1.4.2008 to 31.3.2010 as per terms and conditions of the agreement. Another lease for extraction of Gitti over an area of 2.56 hectare of khasra No. 394 of village Gubradhari Tehsil Murwara District Katni was granted to Shri Niwabha A.D. Fight Private Limited vide order dated 12/5/2010 for a period of 10 years commencing from 23.06.2005 to 22.6.2015. The said lease was transferred in favour of Respondent No. 11 vide order dated 7.10.2008 under Rule 35 of M.P. Minor Mineral Rules, 1996 (in short 'Minor Mineral Rules') for a remaining period i.e. up to 22.6.2015. The transfer deed was executed on 2.12.2008 (Annexure R-11/8) and he was permitted to carry out mining operation on the same terms and conditions on which the quarry lease was granted in favour of original lessee. 3. The transfer deed was executed on 2.12.2008 (Annexure R-11/8) and he was permitted to carry out mining operation on the same terms and conditions on which the quarry lease was granted in favour of original lessee. 3. It had come to the knowledge of the Petitioner that, as per topology report of Indian Bureau of Mine in respect of village Sallaiya and Gubradhari, the area contains Dolomite reserve and the material excavated from the said quarry is dolomite which comes under the category of major mineral and no permission to excavate major mineral under the cover of trade quarry and lease of minor mineral can be granted. The State Government is also suffering loss of revenue by way of royalty and as per chemical analysis report dated 16.5.2009 (Annexure P/5) the contents of silica in the said two villages is less than 2.21%. The Respondent No. 10 and 11 are excavating dolomite which is a major mineral. 4. The Respondent No. 1, 2, 3, 5 and 6 had filed their return and inter alia, contended that the area in question comes within the 'Transitional Zone", contains the mix dolomite features, but as per report (Annexure R/1) of Chief Analyst, Directorate of Geology and Mining, Regional Office, Jabalpur, the samples sent for chemical analysis do not contain the features of dolomite, as per the norms fixed by the Indian Bureau of Mines, Government of India, Department of Mines, New Delhi. It is further averred that the report of "Expert group on classification of mineral with regard to their possible optimum industrial use" issued by the Department of Mines, Ministry of Steel and Mines, Government of India, New Delhi in month of October, 1987. The composition of dolomite has been classified into three categories. a) Refractory i) L.D. Grade MgO 21% (Mm) SiO2 1% (Max) A1203 1% (Max) Fe203 1% (Max) Physical: fine granted and non-decrepitating trn calcinations. ii) SMS and Fettling grade Mgo 20% (min) S102 4% (Max) Total insoluble 6% (Max) Physical: Homogenous fine granted and non-decrepitating on calcinations. b) B.F. and Sintering grade: MgO 19% (Min) Acid insoluble 12% (Max) (c) Glass: CaO + MgO 50% (Min) Fe203 0.15% (Max) SiO2 2.5% (Max) 5. It is contended that the mineral in question does not contain the features of chemical composition of dolomite which can be used in the refractory, blast furnace and glass industry. b) B.F. and Sintering grade: MgO 19% (Min) Acid insoluble 12% (Max) (c) Glass: CaO + MgO 50% (Min) Fe203 0.15% (Max) SiO2 2.5% (Max) 5. It is contended that the mineral in question does not contain the features of chemical composition of dolomite which can be used in the refractory, blast furnace and glass industry. The deposit of dolomite in the area in question is of low grade, silica is more than 6% which cannot be used for industrial purposes as prescribed by the Government of India and thus the answering Respondents have not violated any of the provisions of law in granting trade quarry and quarry lease to the Respondent No. 10 and 11. 6. The Respondent No. 10 who has been granted trade quarry in his return admitted that the area contains dolomite and he also filed photocopy of the chemical analysis report and as per the report dated 22.10.2009 (Annexure R/2) the area contains dolomite which is the major mineral. 7. Respondent No. 11 in his return denied the fact that the Petitioner is a journalist. It is contended that one Bishambhar Dubey who is a competitor of the Respondents No. 11 takes contract in the name of M.P. Engineering and Kanhaiyalal Agrawal from the Railways for supply of stone brickbats (gitti). When he could not get the contract, he through this Petitioner who is neither the resident of village Kuthla has filed this writ petition in the name of public interest for cancellation of quarry lease so that the answering Respondent could not fulfill the terms of the contract entered by him with the Railway for supply of Gitti. On merits it is contended that the leased area contains 'Waste Rocks' which is a minor mineral used for stone-brickbats (gitti). The royalty of which is being paid by him in accordance with the Minor Mineral Rules and the rate fixed by the State Government. The minor mineral excavated by him is not a dolomite. It is further contended that quarry lease was earlier granted to Sriniwasa A.D. Fight Pvt. Ltd and from 23.11.2005 to 2.12.2008 no objection was raised by anyone that the area contain major mineral. As per chemical analysis report, the said mineral cannot be treated as Dolomite. 8. The minor mineral excavated by him is not a dolomite. It is further contended that quarry lease was earlier granted to Sriniwasa A.D. Fight Pvt. Ltd and from 23.11.2005 to 2.12.2008 no objection was raised by anyone that the area contain major mineral. As per chemical analysis report, the said mineral cannot be treated as Dolomite. 8. Respondent No. 7, Indian Bureau of Mines has filed its separate return and denied that topological report of village Sallaiya and Gubradhari was prepared by the Indian Bureau of Mines. It is also denied that the said report (Annexure P/2 and P/3) is prepared by the Geographical Survey of India. It is submitted that no such report is available in the office of answering Respondent and issued a letter dated 9.10.2009 (Annexure R/1) to the quarry lease holder and officials of the State Government and directed them to furnish the detailed report. 9. On 24.11.2009 this Court directed that the Respondent No. 6 in presence of Respondent No. 7 shall arrange to draw samples at least at ten different places from each quarry/mine; from each pit, at least five samples would be drawn so that the samples are sent to the certified Laboratory; one set of the sample is kept in the custody of the Collector; the third set of sample is given to Respondent No. 7; one set of sample is given to Respondent No. 11 and one set of the sample is kept with the Secretary, Mining Department, Bhopal. 10. On 28.11.2009, six member team was constituted by the Collector Katni. In presence of the aforesaid team, quarries were marked in all the four directions at a distance of about 60 feet from one another and 50 samples were drawn from different points on 4.12.2009. The samples were collected on 4.12.2009 at both the mines at Gubradhari and Salaiya and Panchnamas were prepared. At the time of collection of samples, the Petitioner was present and in his presence the samples were collected and Panchanamas were prepared, the Petitioner never raised any objection and after accepting the contents of Panchanamas, appended his signatures. 11. One set of sample was sent to the Secretary, Government of M.P. Mining Department and another was kept in the custody of District Treasury Officer. One set of sample was handed over to the Petitioner and another set to the Respondent No. 11. 11. One set of sample was sent to the Secretary, Government of M.P. Mining Department and another was kept in the custody of District Treasury Officer. One set of sample was handed over to the Petitioner and another set to the Respondent No. 11. One set of sample was sent to Modern Mineral Processing Laboratory and Pilot Plant, Nagpur for chemical analysis. 12. The samples drawn as per order of this Court dated 24.11.2009 were tested in the Modern Mineral Processing Laboratory and Pilot Plant, Nagpur. Test report was directly submitted before this Court in a sealed cover. From the report dated 14.12.2009, it is confirmed that the sample is siliceous dolomite rock which is not fit for use in blast furnace. 13. On 7.1.2010 when the matter was listed for hearing, this Court observed that the sample process was not conducted in accordance with the directions issued on 24.11.2009. Thereafter on 03.02.2010 this Court directed that any competent officer of the Mining Department of the State Government shall appear before this Court to explain the report submitted by the Indian Bureau of Mines. 14. Pursuant to this Court's order dated 3.2.2010, Shri S.K. Shah, Superintending Geologist, Directorate of Geology and Mining, M.P., Bhopal, was present. He stated that if all the samples drawn from different 10 pits had been sent for testing then 10 different reports would have been given and as per test report, the ore in question contains siliceous dolomite rock which is not fit for blast furnace etc. He further explained that for major mineral the content of silica in Dolomite should not exceed more than 6% whereas in the sample in question the silica was found to the extent of 11.45% and 9.68% and thus, the same being higher than the maximum limit prescribed by the Government of India vide its notification dated 16/10/2009, it cannot be said to be a major mineral. 15. Considering these facts and the additional affidavit filed by the Collector, Katni on 29.1.2010, we are of the view that the process of drawal of samples and its testing was conducted as per advise given by the expert members of the Team and no further sampling or investigation is required. 16. We have heard the arguments at length and perused the record of the case. 17. 16. We have heard the arguments at length and perused the record of the case. 17. The basic question is whether the mineral found is dolomite and in common parlance what is its chemical composition which gives rise to establish its identity as dolomite. 18. The Mines and Minerals (Regulation and Development and Regulation) Act, 1957 (in short 'the Act' ) divides minerals into two classes, namely, minor minerals and minerals other than minor minerals, which may, for the sake of brevity, be referred to as major minerals. The Act itself makes provisions in Section 4 to 13 for regulating the grant of prospecting licence and mining lease in respect of major minerals, but so far as minor minerals are concerned, grant of prospecting licence and mining lease is left to be governed by Rules to be made by the State Government under Section 15. The Respondent No. 1, in exercise of the power conferred under Section 15, made the M.P. Minor Mineral Rules, 1996 for regulating the grant of quarry lease in respect of minor minerals and for purposes connected thereof. "Minor minerals" are defined in Section 3(e) to means building stone, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the official Gazette, declare to be a minor mineral; No notification has been issued by the Central Government, in exercise of power conferred under Section 3(e) of the Act that when quality of dolomite is not usable for blast furnace, refractory and glass industry it ceased to be a major mineral. The trade quarry and quarry lease was granted in favour of Respondent No. 10 and 11 under the Minor Mineral Rules for extraction of stone for manufacturing Gitti. The transfer lease deed is executed in statutory form No. 14 framed under Rule 35(3) of Rules of 1996. As per terms of the said deed, the Respondent No. 11 is bound to carry out the mining operation on the same terms and conditions on which the lease was granted in favour of original lessee. It is not in dispute that dolomite is not specified in the said lease deed nor the lease of dolomite mineral was granted in favour of the original lessee. Sub-rule 2 of Rule 30 of Rules of 1996 reads as under. 30. It is not in dispute that dolomite is not specified in the said lease deed nor the lease of dolomite mineral was granted in favour of the original lessee. Sub-rule 2 of Rule 30 of Rules of 1996 reads as under. 30. Conditions of quarry lease.- (1) xxx xxx xxx (2) If any mineral not specified in the lease is discovered in the leased area, the lessee shall report discovery without delay to the Collector and shall not win or dispose of such mineral without obtaining a lease therefor. If he fails to apply for such a lease within three months of the discovery of the mineral, the Competent Authority may sanction lease of such mineral, to any other person, who applied for it. 19. As per the contention of learned Counsel for the Respondents when dolomite mineral is used in refractory, blast furnace and glass industry and silica percentage will be less than 6% then the same is termed as major mineral but when the silica contents in the dolomite is more than 6%, the same can not be used in blast furnace, refractories and glass industries, the same will be termed as minor mineral but no such notification has been issued by the Central Government under Section 3(e) of the Act declaring the dolomite as minor mineral. 20. In Rule 2 of the Minor Mineral Rules, Clause (xxi) says: "Minor minerals" means the minerals as specified in Schedule-1 and appended to these rules and any other mineral which the Government of India may, by notification in the official gazette, declare to be a minor mineral under Section 3(e) of the Act. 21. As per serial No. 1 of Schedule-I of Specified Minerals of Minor Minerals Rules, dimensional stone-granite, dolomite, and other igneous and metamorphic rocks which are used for cutting and polishing purpose for making blocks, slabs, tiles of specific dimension, the rate of royalty is between Rs. 800/- to 1500/- per cubic meter. Similarly as per serial No. 6 of the Schedule-I when stone is used for making gitti by mechanical crushing (i.e. use of crusher) the royalty is Rs. 28/- per cubic meter and when the said stone is used as boulder, royalty is Rs. 800/- to 1500/- per cubic meter. Similarly as per serial No. 6 of the Schedule-I when stone is used for making gitti by mechanical crushing (i.e. use of crusher) the royalty is Rs. 28/- per cubic meter and when the said stone is used as boulder, royalty is Rs. 22/- per cubic meter and for road metal Gitti, Dhoka, Khanda, Dressed Stones, Rubble and Chips, as per serial No. 3 of Schedule-II of Minor Mineral Rules the rate of royalty is between Rs. 17/- per cubic meter to Rs. 44/- per cubic meter. 22. In respect of limestone, the Central Government issued a notification under Section 3(e) of the Act and declared the limestone as minor mineral when it is used for burning in kilns for manufacture of lime used as building material that was covered by the definition of minor mineral. Thus when the limestone is used in kilns for manufacturing of lime used for building material remain a minor mineral and when limestone is used for burning for manufacture of lime for industrial or sophisticated purposes other than as building material, it would have to be of superior quality and it was classified as major mineral and ceased to be a minor mineral and become a major mineral. Herein the present case no notification declaring the dolomite as minor mineral when the contents of silica is more than 6%, is notified by the Central Government under the provisions of Section 3(e) of the Act. As per serial No. 1 of Schedule-1, in respect of Specified Minerals of Minor Mineral Rules of 1996, when dolomite is used for cutting and polishing purpose for making blast, slabs, tiles of specific dimension it has been declared as minor mineral by the State Government but no such notification has been issued by the Central Government declaring it as minor mineral. Thus, the contention of the Respondent No. 11 that the stone which they are extracting from the quarry granted by die State Government is a dolomite of inferior quality which can be used as minor mineral for which the quarry lease has been granted, cannot be accepted unless and until a notification is issued by the Central Government under Section 3(e) of the Rules. 23. Dolomite is a major mineral. It has been treated as minor mineral when used for a particular purpose as is the position in case of limestone. 23. Dolomite is a major mineral. It has been treated as minor mineral when used for a particular purpose as is the position in case of limestone. In case of limestone a notification has been issued by the Central Government under Section 3(e) of the Act to treat it as minor mineral when used for manufacturing of lime in kilns to be used in building material. No such notification has been issued or pointed out in case of dolomite by the Central Government. The State Government therefore is directed to determine as to whether the mineral found is dolomite and how and when it can be treated as minor mineral. 24. It was admitted at the Bar that ordinarily and generally only dolomite of superior grade is used for industrial purposes or a high quality dolomite produced from it is used for purposes other than building material including industrial purposes. 25. It was also admitted at the Bar that the mineral contained in the quarry granted to Respondent No. 11 is of inferior grade of dolomite. 26. Mr. Manish Verma, learned Counsel for the Petitioner endeavored to place material before us to show that the area in question was found to be of dolomite of high grade and quality. He therefore submitted that the State Government should not be permitted to waste the national wealth of high grade dolomite by granting a quarry lease as a minor mineral merely for the purpose of getting some royalty on it. We see force in his argument but it is not possible for us to decide the contentious question as to whether the dolomite found in the area was such that could be used as a minor mineral or was fit to be used as a major mineral. If a major portion in the area is such that can be used as a minor mineral, then a lease in accordance with the State Rules will have to be granted and a special clause may be provided therein if perchance some quality of dolomite quarried in the demised area is found to be of high grade. Similarly if the major portion is found to be of high grade dolomite, then a mining lease for mining dolomite as a major mineral in accordance with the Central Rules (Mineral Concession Rules, 1960) will have to be granted. Similarly if the major portion is found to be of high grade dolomite, then a mining lease for mining dolomite as a major mineral in accordance with the Central Rules (Mineral Concession Rules, 1960) will have to be granted. A special clause may be incorporated in such a lease also. In either event the lease will be liable to be cancelled if the lessee commits any breach of the terms of the lease including the one as to the purpose of using the dolomite as a major or a minor mineral. 27. The Apex Court in the case of State of Uttaranchal v. Balwant Singh Chaufal and Ors. Civil Appeal Nos. 1134-1135 of 2002 decided on 18.1.2010 issued number of directions and observed that the Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations. The Courts should prima facie verify the credentials of the Petitioner before entertaining a PIL and should be fully satisfied that substantial public interest is involved before entertaining a PIL. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation. In the present case the Petitioner who is claiming himself to be a resident of village Kuthla and knew the fact that the quarry lease was granted in the year 2005 could not challenge the order immediately after grant of lease and when the same was transferred in favour of the Respondent No. 11 filed this petition with oblique motive when the statutory remedy is available under the statute, therefore such petition deserves to be discarded and discouraged so that no one in future may attempt to file similar petition. 28. 28. On considering the totality of facts and circumstances of the case, the proper course in such a situation is to direct the State Government to consider the case of the Petitioner, determine the question as to whether the quality of dolomite contained in the area in question is such that a lease to quarry it as a minor mineral should be granted or is such that a lease for mining it as a major mineral should be granted and how and when it can be treated as minor mineral or either to continue quarry lease granted in favour of Respondent No. 11 or cancel it after giving due opportunity of hearing to the Respondent No. 11. 29. The impugned grants are revisable by the State Government under Rule 57(4) of Minor Mineral Rules. The Petitioner is having alternative statutory remedy under the provisions of Minor Mineral Rules to challenge the quarry lease granted in favour of Respondent No. 11 by filing a review/revision before the State Government. The Petitioner is at liberty to raise all the questions before the State Government by filing a review under the provisions of Minor Mineral Rules and it will be open to the State Government to consider the said review, if any, filed by the Petitioner and dispose of the matter afresh in the light of this order within a period of four months from the date of filing of review after granting opportunity to all the affected persons to represent their case and decide it in accordance with the law. 30. With the aforesaid, writ petition is disposed of. No costs.