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2019 DIGILAW 2052 (RAJ)

State of Rajasthan v. Prakash Rajpurohit

2019-07-29

PUSHPENDRA SINGH BHATI, S. RAVINDRA BHAT

body2019
JUDGMENT S. Ravindra Bhat, C.J. - The State appeal complains that the learned Single Judge by the impugned order dated 11.4.2007 held that pending applications for grant of prospecting licence can be processed and decided and the State refusal to do so after the notification issued on 28.10.1998 is contrary to law. 2. The State of Rajasthan by notification issued on 28.10.1998 cleared that its previous reservation under Rule 75 of the Mineral Concession Rules, 1960 framed under Mines and Mineral (Development and Regulation) Act, 1957 through notification dated 29.6.1973 stood modified/denotified. It is argued that the effect of the notification (of October, 1998) was to free the areas and minerals which had been reserved for development by State or its Corporation. 3. The writ-petitioners applied unsuccessfully for grant of prospecting leases and upon rejection of their applications they approached this Court. 4. The learned Single Judge after considering and having regard to submissions of the parties and also noticing express terms of the notification, held as follows :- "It is not disputed before the Court that prior to issuance of notification dated 23.02.1998, the area Indon-ki-Dhani was reserved but, by this notification, it was declared free for grant of mining lease. Upon perusal of the notification dated 23.02.1998, the purpose of issuance of the notification is laid bare by the stipulation contained therein which is as under : This assertion clearly shows the intention of the government that a decision has been taken by the government to grant lease for mineral dolomite also and, in pursuance of this notification, application was filed by the petitioner and adequate enquiry was also made by the Mining Department from the Forest Department whether the said area fell in the forest area. Therefore, obviously the application of the petitioner has been rejected for an alien ground not germane to the consideration of applications under the notification dated 23.02.1998. It is strange that the reply of the respondents is totally unfounded on any sound reason that no applications were invited for the purpose of granting lease of dolomite mineral mine though the government decided to issue licence for the areas specified in the notification dated 23.02.1998; but, according to the reply, on the basis of the so called circular dated 18.08.1981, purporting to be issued in pursuance of the policy decision of the State Government, the application of the petitioner was rejected. I have also gone through the circular dated 18.08.1981. It cannot be treated to be a circular because it is stated in the said communication dated 18.08.1981 that upon the proposal of the Mines & Geology Department the Government agreed that the mineral dolomite exclusively be reserved for working in public sector undertaking. By its tenure, letter dated 18.08.1981 cannot be treated to be a policy decision of the Government. The petitioner is claiming his right under the notification dated 23.02.1998 and letter dated 18.08.1981 does not come in way of consideration of application for mining lease under the notification dated 23.02.1998. I have also taken into consideration Annex.-R/2 dated 05.04.2007, issued by the Mining Superintending Engineer, Directorate of Mines & Geology, Udaipur whereby it is categorically denied by the authority of the State that there is no order of the Government, except letter dated 18.08.1981, prohibiting grant of mining lease in respect of mineral dolomite. As aforesaid, letter dated 18.08.1981 does not, in any manner, convey that the State Government have already adopted policy decision not to grant lease in respect of mineral dolomite in favour of private individuals. The acceptance of the proposal by itself is not the decision of the government resolving upon adoption of particular policy. Had it been so, it could not have been ignored by the State Government while issuing notification dated 23.02.1998. Therefore, obviously, the ground for rejection of the petitioner's application for grant of mining lease in respect of mineral dolomite in the area specified in the relevant notification is without any basis and arbitrary. The action of the State Government is violative of Articles 14 and 19 (1)(g) of the Constitution of India. In the present writ petition, neither the respondents have placed on record any specific policy decision of the State Government nor have the respondents pointed out that after issuance of notification dated 23.02.1998 any policy decision has been taken, therefore, the respondent department is under obligation to consider the applications filed in pursuance of notification dated 23.02.1998 by inter alia the petitioner within the parameters of notification dated 23.02.1998 in consonance with provisions of law and, thereafter, pass appropriate orders. In the present case, if the petitioner is otherwise eligible and his application, upon consideration by the concerned authority under the notification dated 23.02.1998, succeeds, I see no reason why the petitioner's application should be rejected for any ground not available to the respondents. " 5. The State contends that its consistent policy after 18.8.1981 was not to grant any mine, mining of mineral rights/prospecting or mining leases to private parties, especially, when it concerned Dolomite. It relies upon the terms of communication dated 08/10.6.1981, which is in the form of a letter by the Government of Rajasthan, Directorate of Mines & Geology, Udaipur. The relevant part whereof reads as follows :- "I have considered over the matter and have discussed it with Additional Director (Mines) also. It is proposed that mineral dolomite may exclusively be reserved for working in public sector by RSMDC so that whenever any application for mineral dolomite is received it can be rejected on the ground that the State Govt. had decided that the mineral dolomite would be worked exclusively by public sector undertaking." 6. Although, reservation in terms of this policy was made in exercise by resort to Rule 75; the fact remains that the underlying policy was embodied in the letter of 1981. 7. It is contended on behalf of State that mere circumstance that Dolomite was de-notified, did not ipso facto confer any enforceable right, particularly, having regard to the fact that the classes of mineral were open for grant of prospecting mining lease. It is submitted that in any event, the State has since 1981, never granted any prospecting licence in respect of Dolomite. 8. Learned Standing Counsel also submitted that the petitioners had applied for grant of prospecting licence prior to the notification in-question dated 28.10.1998 and later by another circular of 13.5.2011; merely decided that in future only steel grade Dolomite would be kept reserved for working in State/Central Public Sector undertakings or joint venture involving State/Central Public Sector undertakings. 9. Learned counsel for the respondent/writ petitioners relied upon Rule 58 of the Mineral Concession Rules, 1960 and submitted that the question of reserving any area for exclusive use could not have arisen. With the deletion of Rule 58 if there was any provision reserving any mine, it would cease to operate. 9. Learned counsel for the respondent/writ petitioners relied upon Rule 58 of the Mineral Concession Rules, 1960 and submitted that the question of reserving any area for exclusive use could not have arisen. With the deletion of Rule 58 if there was any provision reserving any mine, it would cease to operate. It was stated that this notification of 28.10.1986 clarified that prospecting or mining licences could be freely given to private parties. Rule 58 of the Mineral Concession Rules which was in force till 1987 reads as follows :- "58. Reservation of areas for exploitation in the public sector etc.,- The State Government may, by notification in the Official Gazette reserve any area for exploitation by the Government, a Corporation established by any Central, State or Provisional Act or a Government company within the meaning of Section 617 of the Companies Act, 1956 (1 of 1956).]" 10. Parallelly by amendment of Section 17A (which was inserted w.e.f. 10.2.1987) the Act enabled reservation of mines or mineral by the State or Central Government, as the case may be, in accordance with the conditions specified. Section 17A reads as follows :- "17A.Reservation of areas for purposes of conservation- (1) The Central Government, with a view to conserving any mineral and after consultation with the State Government, may reserve any area not already held under any prospecting licence or mining lease and, where it proposes to do so, it shall, by notification in the Official Gazette, specify the boundaries of such area and the mineral or minerals in respect of which such area will be reserved. (1A) The Central Government may in consultation with the State Government, reserve any area not already held under any prospecting licence or mining lease, for undertaking prospecting or mining operations through a Government company or corporation owned or controlled by it, and where it proposes to do so, it shall, by notification in the Official Gazette, specify the boundaries of such area and the mineral or minerals in respect of which such area will be reserved. (2) The State Government may, with the approval of the Central Government, reserve any area not already held under any prospecting licence or mining lease, for undertaking prospecting or mining operations through a Government company or corporation owned or controlled by it and where it proposes to do so, it shall, by notification in the Official Gazette, specify the boundaries of such area and the mineral or minerals in respect of which such areas will be reserved. (2A) Where in exercise of the powers conferred by sub-section (1A) or sub-section (2), the Central Government or the State Government, as the case may be, reserves any area for undertaking prospecting or mining operations, the State Government shall grant prospecting licence or mining lease, as the case may be, in respect of such area to such Government company or corporation: Provided that in respect of any mineral specified in Part A and Part B of the First Schedule, the State Government shall grant the prospecting licence or mining lease, as the case may be, only after obtaining the previous approval of the Central Government. (2B) Where the Government company or corporation is desirous of carrying out the prospecting operations or mining operations in a joint venture with other persons, the joint venture partner shall be selected through a competitive process, and such Government company or corporation shall hold more than seventy-four per cent of the paid up share capital in such joint venture. (2C) A mining lease granted to a Government company or corporation, or a joint venture, referred to in sub-sections (2A) and (2B), shall be granted on payment of such amount as may be prescribed by the Central Government.. 3. Where in exercise of the powers conferred by sub-section (1A) or sub-section (2) the Central Government or the State Government as the case may be undertakes prospecting or mining operations in any area in which the minerals vest in a private person, it shall be liable to pay prospecting fee, royalty, surface rent or dead rent, as the case may be, from time to time at the same rate at which it would have been payable under this Act if such prospecting or mining operations had been undertaken by a private person under prospecting licence or mining lease. " 11. " 11. The learned Single Judge was of the opinion that there is no question of any underlying policy of 1981 nor did the terms of letter indicate that a policy of wide application not to grant or prospecting lease for Dolomite, exist. 12. On a plain reading of the letter of 1981, this Court is of the opinion that the contrary is true. Clearly the letter specifically states that the State Government proposed that the mineral Dolomite is for public sector use/reservation and whenever application for Dolomite was received it was to be rejected. Apparently it is a policy prevailed for the period between 1981 to 1998. 13. A 1993 notification reinforced the underlying policy of 1981, (which was never shown to have been rescinded or reviewed). In the given circumstance the fact that the Government de-reserved or de-notified mines or classes of mines, or areas in exercise of its powers under Rule 59(a) ipso facto did not mean that the corollary resulted into an enforceable right in part of private third parties to seek prospecting leases for the askance. 14. The subsequent policy embodied in the circular of 13.5.2011 cited during the course of present appeal reads as follows :- "Government of Rajasthan Mines Gr-2 Department No.F.14(13)Mines/Gr.II/2010 Jaipur, Dated : 13 May, 2011 Government vide letter No.F13(13)Mines/Gr-1/81 Dated 18.08.1981 reserved mineral Dolomite exclusively to be worked in public sector undertaking. Keeping in view the changed scenario of mineral conservation, environment protection and increased industrial requirement the above directions are modified to the extent that in future only steel grade Dolomite shall be kept reserved for working in State/Central public Sector Undertakings or joint venture involving State/ Central Public Sector Undertakings. Application of new mineral concession of Dolomite (other than steel grade) shall be considered for grant as per the provisions of MMDR Act,1957 and MCR, 1960. All the applications received for fresh grant of Dolomite (major mineral) during a period of 30 days from the date of this circular and the application which had been received prior to the date of circular and had not been disposed off, shall be deemed to have been received on the same day for the purpose of priority. Inclusion of Dolomite (other than steel grade) shall be permitted in the existing major mineral leases where host rock is dolomite. Inclusion of Dolomite (other than steel grade) shall be permitted in the existing major mineral leases where host rock is dolomite. However, where mineral Dolomite is found blockable in existing major mineral leases, separate minor mineral leases and marble shall be granted as per the provisions of Marble Policy, 2002 and Marble Development and Conservation Rules, 2002. Sd/- (Shiv Kumar Agarwal) Dy. Secretary to Govt." 15. A plain reading of this circular would show that even here the State adverted to 18.8.1981 policy which only reenforces the State of Rajasthan's thinking not to grant prospecting lease in respect of Dolomite a policy that prevailed for 30 years. It has apparently been relieved to some extent by the circular of 2011. 16. From the above discussion it is quite evident that the learned Single Judge completely mis-appreciated the circumstance of deletion of Rule 58. That was not so significant as to confer any enforceable right upon the private parties, having regard to the fact that parallelly the same power was placed in the parent statute w.e.f. 1988, by amendment. Furthermore this Court notices that the decision of the Supreme Court in Monnet Ispat and Energy Limited Vs. Union of India & Ors., (2012) 11 SCC 01 clarifies that the provision embodied in the circular and State Government does get effaced by issuance of another notification or amendment to the Mineral Concession Rules. The Court expressly noticed Section 17(A)(2) of the Act, introduced w.e.f. 1988. 17. For the foregoing reasons we are of the opinion that the impugned judgment and all the subsequent orders which had followed the judgment of Bhaktawar Singh Vs. State of Rajasthan & Ors., (S.B. Civil Writ Petition No.4359/2004, decided on 11.04.2007) cannot be sustained. They are accordingly set aside. The appeals, therefore, are allowed. All the pending applications are disposed of.