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2014 DIGILAW 253 (CHH)

Mahamaya Minerals v. State of Chhattisgarh

2014-07-09

MANINDRA MOHAN SHRIVASTAVA

body2014
ORDER 1. This order shall govern disposal of aforesaid writ petitions, as in all the writ petitions, common issue arises for consideration based on similar fact. The petitioners in all these writ petitions have been granted license/permit for storage of coal under the provisions of C.G. Minerals (Mining Transportation and Storage) Rules, 2009 (for short the Rules of 2009). Each of the petitioners, desirous of opening, establishing and running coal storage depot to facilitate transportation of coal after mining and removal from mining area, applied to the competent authority of the mining department for grant of license for coal storage. The application of each of the petitioners in aforesaid cases was considered and the Mining Officer in the office of the Collector granted license in prescribed Form 7, referable to Rule 6(1) of the Rules of 2009. For ready reference, the details of the date of issuance of storage licenses and the period of such license in respect of each of the petitioners is indicated below:- While aforesaid petitioners were operating their license and running their coal storage in the licensed premises, the Directorate of Geology and Mining, Chhattisgarh issued direction to the Collectors of districts in response to clarification sought from the Collector. In W.P. (C) No. 61 of 2013, the Directorate of Mining issued directions on 24-9-2012 to the Collector, District Janjgir Champa in response to Collector's D.O. letter dated 1-6-2013. A perusal of letter dated 24-9-2012 (Annexure P/2) shows that the direction were issued to clarify certain aspects which included a clarification sought for the purposes of reckoning distance of 25 kms. as limit beyond which coal storage could be permitted. The clarification stated that the prohibited distance of 25 kms. has to be measured as aerial radial/shortest distance. Therefore, it is the aerial distance which should be taken into consideration while granting permission to establish coal storage depot by the licensees. This direction of the Director, Geology and Mining of the State of C.G. was issued to the Collectors of the districts within whose jurisdiction, the coal storage depot of the petitioners is situated. Pursuant to this clarificatory direction of the Directorate, the licensing authority issued notices to each of the petitioners to show cause as to why license of coal storage depot granted to the petitioners under the Rules of 2009 be not cancelled. Pursuant to this clarificatory direction of the Directorate, the licensing authority issued notices to each of the petitioners to show cause as to why license of coal storage depot granted to the petitioners under the Rules of 2009 be not cancelled. Though each of the petitioners submitted reply stating that as the transportation of coal is done only through road and not aerially, while measuring distance of 25 kms. it is the distance through road and not aerial distance, which should be taken into consideration. The petitioners in the respective petitions submitted through their reply that license was granted to them by the competent authority after due satisfaction and inspection of the indicated land which it is situated outside the prohibited area of 25 kms. from the coal mines. But the Collector in all the cases, acting under the directions of the Directorate of Mining, held that Rules of 2009 prohibit establishment of coal storage depot within 25 kms. of coal mines and that distance is to be measured aerially and not the road distance. As in all the cases, though road distance was more than 25 kms. but the aerial distance of the coal storage depot from coal mines was found to be less then 25 kms. the impugned orders have been passed in all the cases, cancelling license of all coal storage at the location indicated in the license. It is this action of the respondents, which is under challenge in the aforesaid writ petitions. 2. Learned counsel for the petitioners in all the writ petitions raised common submission that the action of the respondents, cancelling license, is illegal, arbitrary and to serious prejudice of the petitioners who were granted license for coal storage without any suppression of fact. It is contended that while applying for grant of license in each of the cases, the land offered by each of the petitioners and its location, distance from the coal mines was fully within the notice and knowledge of the licensing authority. Further contention is that in none of the cases, there is any allegation that the petitioners falsely stated regarding the actual distance of the land where coal storage was to be established and it is not the case of the respondent authorities that the coal storage depot established and run under the license, it situated at a distance less than 25 kms. from the mining area. from the mining area. According to them, provisions contained in Rule 15(5) of the Rules of 2009 were understood by the respondent authorities to mean road distance and not aerial distance. Therefore, in these circumstances, the respondent authorities are estopped from cancelling license on the ground that the distance should have been measured on aerial basis and not the road distance. It is also contended that it was for the licensing authority, at the time of considering the application for grant of license, to clarify this aspect but the authority itself was of the view that it is the road distance, which has to be taken into consideration to find out whether coal storage depot is situated within the prohibited limits or not. Therefore, now, the authority cannot turn around and cancel, license and thereby affect petitioners' business of coal storage. Learned counsel for the petitioners also contended that as according to respondents, the object of prohibiting establishment of coal storage depot within 25 kms. of mining area was to check illegal mining and theft of coal. It is the argument of learned counsel for the petitioners that under the scheme of the Rules of 2009, transportation of coal is permissible only through vehicle which excludes railway wagon, aerial ropeway or conveyor belt. In the matter of grant of license, it is the road distance which has to be taken into consideration to carve out the prohibited area. 3. Per contra, submission of learned counsel for the respondent/State is that there is a statutory prohibition carried out under Rule 15(5) of the Rules of 2009 that no permission shall be issued for the coal storage within the limit of 25 kms. of lease of coal mines. He submits that the clarificatory letter was issued by the Directorate of mines, taking into consideration that the object and purpose of prohibition of coal storage within 25 kms. of mining area is to check illegal mining and theft of coal. Therefore, it is the aerial distance and not the road distance which has to be taken into consideration to find out whether the proposed coal storage depot, in respect of which, the license is to be granted, is situated within the prohibited area. of mining area is to check illegal mining and theft of coal. Therefore, it is the aerial distance and not the road distance which has to be taken into consideration to find out whether the proposed coal storage depot, in respect of which, the license is to be granted, is situated within the prohibited area. According to him, the road distance cannot be taken as basis because roads are zig-zag and the depot may be situated at a very short distance from the coal mines, in which case, it will become convenient and conducive for illegal mining and theft of coal. Taking into consideration all these aspects, competent authorities formed opinion that the distance of 25 kms. from mining area has to be measured radially through aerial distance only which will ensure that irrespective of zig-zag road distance, all the storage depots are situated and allowed to operate from a comfortable distance of 25 kms. from the coal mines. Each of the petitioners were duly noticed and only thereafter, finding that aerial distance was less than 25 kms. licenses have been cancelled. He further submits that if the petitioners apply for grant of license to run storage depot at a place which is situated beyond prohibited limit of 25 kms. of aerial distance, their applications would be duly considered by the competent authority. 4. It is not in dispute that in all the cases, petitioners had applied for grant of statutory license to permit them to operate and run coal storage depot and the competent authority, after consideration of those applications, decided to grant license to these petitioners for the period indicated in their respective licenses. It is also not the case of the respondent authorities that while obtaining license, any of the petitioners misrepresented the authorities by incorrectly stating the distance of the coal depot. It is quite apparent that at the time, when the petitioners applied for grant of license, it was their bona fide belief that the requirement of the Rule would be satisfied if the plots, where actual storage is proposed to be established, is situated beyond the limits of 25 kms. of road distance. Moreover, the licensing authority, also while scrutinizing those applications and verifying the eligibility of each of the petitioners, considered the road distance only and not the aerial distance. It only subsequently, cropped up as to whether distance of 25 kms. of road distance. Moreover, the licensing authority, also while scrutinizing those applications and verifying the eligibility of each of the petitioners, considered the road distance only and not the aerial distance. It only subsequently, cropped up as to whether distance of 25 kms. should be taken as aerial distance or road distance. Therefore, one thing is clear that grant of license was not an outcome of any false or incorrect representation made by the petitioners but a change of opinion of the authorities that it is the aerial distance which has to be taken into consideration and not the road distance. 5. The pivotal issue which arises for consideration therefore is whether the stutory prohibition engrafted in Rule 15(5) of the Rules of 2009 prohibits coal storage within 25 kms. of aerial distance or whether this distance should be measured through road between coal mines and coal storage depot. In order to decide the petition, it would be apposite to quote relevant Rules as below:- "Rule 15 Prohibition:- (1) Permit shall not be issued on any government land. (2) Permit shall not be issued within the limit of 300 meters from habitat area/school/ hospital. (3) Permit shall not be issued within the 100 meters limit of the National, State Highway and the River Banks. (4) Permit shall not be issued for mineral storage within the restricted area of the transmission line. (5) Permit shall not be issued for the coal storage within the limit of 25 km. of the lease of the coal mines." A perusal of the aforesaid provisions reveals that the aforesaid Rule incorporates certain prohibition in the matter of grant of permission for storage of mineral. Apart from imposing prohibition from establishing any storage permit on any Government land, sub-rule (2) to sub-rule (4) carve out prohibited area with reference to habitat area, schools, hospitals, National, State Highway, River Banks and transmission line. Sub-rule 5 in particular prohibits establishment of coal storage within the limit of 25 kms. of the lease of coal mines. In the entire Rule, there is no specific provision that the limit of 25 kms. has to be taken either aerially or through road or otherwise. Therefore, in the matter of measurement of distance, the provisions of C.G. General Clauses Act, 1957 are applicable. of the lease of coal mines. In the entire Rule, there is no specific provision that the limit of 25 kms. has to be taken either aerially or through road or otherwise. Therefore, in the matter of measurement of distance, the provisions of C.G. General Clauses Act, 1957 are applicable. Section 9 of the General Clauses Act makes provision with regard to measurement of distances and being relevant is extracted herein-below:- "9. Measurement of distances-In the measurement of any distance for the purpose of any Chhattisgarh Act that distance shall, unless a different intention appears, be measured in a straight line on a horizontal plane." The aforesaid provision provides that the distance shall be measured in a straight line of a horizontal plane. Thus, the general rule applicable in the measurement of distances would be the distance measured on a straight line on a horizontal plane. This rule, however, is subject to a different intention appearing in the scheme of particular legislation. On a plain reading, distance has to be measured on a straight line on a horizontal plane. That would mean that it is the aerial distance which is a straight line on a horizontal plane which has to be taken into consideration. 6. The question, therefore, which arises for consideration is whether there is different intention appearing from statutory scheme of the Rules of 2009 to warrant measurement of distance through road, instead of taking into consideration the aerial distance. 7. Rules of 2009 have been framed by the State Government in exercise of its power under Section 23C of Mines and Minerals (Development and Regulation) Act, 1957 (for short the Act of 1957). The Rules seek to regulate activity of transportation/storage/ beneficiation/crushing of minerals. Transportation of minerals which are mined in a mining activity is prohibited unless there is a valid transit pass for such transportation issued from the competent authority under the Rules. The Rules further provides for establishment of check post and inspection of minerals in transit. Rule 6 of the Rules requires that for storage or beneficiation or crushing of mineral outside the lease area, permission is required from the concerned District Collector. That means, unless there is a permission/license granted by the competent authority under the Rules, storage is not permissible. Rule 6 of the Rules requires that for storage or beneficiation or crushing of mineral outside the lease area, permission is required from the concerned District Collector. That means, unless there is a permission/license granted by the competent authority under the Rules, storage is not permissible. The applicant desirous of establishing coal storage depot is required to apply in prescribed pro forma which is required to contain details as required under Sub-Rule (4) of Rule 6 of the Rules of 2009. The competent authority is empowered to grant license after making necessary enquiry as provided in Rule 9 of the Rules of 2009. Thus, the object of the Rules is to regulate the storage of minerals including coal. Such provisions have been made in the Rules of 2009 in order to ensure that there is no theft or illegal mining. In the return, the State has come out with a specific stand that the object and purpose of prohibiting storage of coal within the area of 25 kms. is to check illegal mining and theft of coal. 8. The aforesaid statutory scheme and the object and purpose of prohibiting storage of coal within 25 Kms. of the coal mines is obviously to check illegal mining and theft of coal. Thus, prohibition has been engrafted under the Rules to ensure that coal storage depots are allowed to be established only beyond 25 kms. Thus, the object of prohibition under the Rules is to keep coal storage depot away from the mining area. If that is the intention of the Rule making authority, there is no reason why the distance should not be measured aerially i.e. a straight line on horizontal plane rather than taking any other method of measurement of distance. It can therefore, be safely concluded that there is no contrary intention appearing from the statutory scheme of the Rules of 2009 which requires the distance of 25 kms. to be measured otherwise than the one provided under Section 9 of the General Clauses Act. If the road distance, instead of aerial distance, is taken into consideration, there may be cases where due to zig-zag road, the depot may be situated within a very short distance from the mining area. to be measured otherwise than the one provided under Section 9 of the General Clauses Act. If the road distance, instead of aerial distance, is taken into consideration, there may be cases where due to zig-zag road, the depot may be situated within a very short distance from the mining area. If that is allowed to happen, it may go against the intention of the Rule making authority to prohibit establishment of coal storage at shorter distances and allow theft and illegal mining of coal. 9. In view of above analysis, I have to hold that the statutory scheme of the Rules of 2009 warrants distance to be measured aerially rather than road distance. In other terms, law prohibits establishing a storage depot situated within the distance of less than 25 kms. from the lease of mining area. 10. At the same time, it has to be held that for establishment of coal depot within the prohibited area, the competent authorities are no less responsible. The licensing authority ought to have taken due care and caution before grant of license to the petitioners by ensuring that it is the aerial distance and not the road distance which is required to be measured to find out whether the plot is within the prohibited area. As has been observed above, even the licensing authority in the beginning, was of the opinion that it is the road distance which has to be taken into consideration and on that basis, enquiry under Rule 9 of the Rules of 2009 was made while considering applications for grant of license. Undisputedly, if the distance is measured by road, all the depots are situated beyond 25 kms. of the mining area. Therefore, the petitioners/licensees cannot be faulted nor they can be blamed. The petitioners never suppressed any material facts and it was mainly for the licensing authority to apply the Rule in its true spirit before granting license to each of the petitioners. The petitioners, having applied and obtained license, proceeded to establish their coal depot, for which, they have been granted license for certain period. In all cases, the only operative reason for cancellation of license is that the depot is situated within 25 kms. of aerial distance. Except this, there is no other allegation of theft or illegal mining against the petitioners in all the writ petitions. 11. In all cases, the only operative reason for cancellation of license is that the depot is situated within 25 kms. of aerial distance. Except this, there is no other allegation of theft or illegal mining against the petitioners in all the writ petitions. 11. In W.P. No. 59 of 2013, though the petitioner was given a show cause notice on 2-11-2012, proposing to take action or certain allegations of violation of terms and conditions of license of storage, in his case also, finally, the lease has been cancelled only on the ground that his depot is situated within the prohibited area of 25 kms. 12. Taking into consideration all the above aspects of the matter, prohibitory conditions contained in the Rules of 2009 and taking into consideration that the licenses came to be issued to each of the petitioners in violation of provisions contained in Rule 15(5) of the Rules of 2009, though the action of cancellation of license in each of the cases is upheld, in the factual scenario of the case, it would be just and reasonable to grant breathing time to each of the petitioners to shift their storage depot to some other place which is outside the prohibited area of 25 kms. of aerial distance from the mining area. In all the cases, initially an interim order was passed in favour of the petitioners that no coercive action shall be taken subject to the condition that the petitioners shall maintain status quo with regard to the present stock and shall not allow further storage till the next date of hearing, later on, the interim order was modified to the effect that storage of coal on the date of passing of the order of cancellation of license shall be allowed to be removed. Each of the petitioners shall be granted atleast three months time to remove present storage structure and if any fresh application for grant of license is moved by the petitioners for storage on a plot situated outside the prohibited area of 25 kms. radial distance, the competent licensing authority shall consider their applications in just and fair manner. Each of the petitioners shall be granted atleast three months time to remove present storage structure and if any fresh application for grant of license is moved by the petitioners for storage on a plot situated outside the prohibited area of 25 kms. radial distance, the competent licensing authority shall consider their applications in just and fair manner. If the petitioners have not already obtained new license at different places, fresh applications, if any, for grant of license shall be considered by the competent authority and the decision shall be taken within a period of three months from the date of receipt of applications of the petitioners. With the aforesaid observations, the petitions are finally deposed of. A copy of this order be placed in the record of W.P. (C) Nos. 61, 62, 63, 64, 72, 88, 89, 90 of 2013. Disposed off.