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2019 DIGILAW 218 (JHR)

Himalaya Stone Works v. State Of Jharkhand

2019-01-22

SUJIT NARAYAN PRASAD

body2019
JUDGMENT 1. In all these writ petitions, the common order dated 22.12.2018 passed by Deputy Commissioner, Dumka have been questioned, therefore the writ petitions have been directed to be listed together and have been heard and are being disposed of by this common order. 2. At the outset it is stated herein that there are two sets of writ petitions, one group pertains to taking appropriate legal action against the sanctioned mining lease while other group pertains to dealer licence issued for running crusher units. 3. In these writ petitions, the direction has been sought for for quashing the letter bearing No.2463/Mines dated 10.12.2018 whereby and whereunder the petitioners have been directed to remove all materials, machineries and minerals from the worksite situated within Saharanpur-Jamrupani Coal Block within a period of 30 days. 4. The brief facts of the case of the petitioners as per the pleadings made in the writ petitions is that, in pursuance to the provisions applicable for issuance of licence for crusher units or carrying out mining work, they have made an application before the competent authority on the basis of an agreement entered in between the petitioners as well as the raiyats who have allowed them to carry out the mining work/crusher units over the land in question. In pursuance thereto, the licences issued which are valid upto 31 st March, 2022 but during its subsistence period, without following any procedure of law, impugned decision has come on 10.12.2018 directing the petitioners to remove all equipments and infrastructures lying over the land in question, failing which, appropriate action would be taken against them. 5. The ground for assailing the aforesaid order is that the Director (Mines), Jharkhand has acted without jurisdiction and before issuing the said order, the statutory provision provided under the statute, under which the licences have been issued, has not been followed, therefore, there is violation of principles of natural justice. 6. 5. The ground for assailing the aforesaid order is that the Director (Mines), Jharkhand has acted without jurisdiction and before issuing the said order, the statutory provision provided under the statute, under which the licences have been issued, has not been followed, therefore, there is violation of principles of natural justice. 6. It has been agitated that entire action has been taken in pursuance to an order passed by the Chief Secretary of the State of Uttar Pradesh who has written a letter to the Chief Secretary of the State of Jharkhand to get the land cleared since the aforesaid land has been allotted by way of a coal block in favour of the respondent No.5 and in pursuance thereto, the impugned decision has been taken, that too, without following any procedure of law and within the subsistence period of the licence issued by the competent authority. It is the contention of the petitioners that the aforesaid land has not yet been acquired under the statutory provision and therefore, no right has been accrued in favour of the respondent No.5 and even if the right has been accrued before cancelling the licence granted in their favour, process established under the statute ought to have been followed, but without doing so, the impugned decision has been taken. 7. Much have been argued by the learned counsel for the petitioners regarding the implication of the effect of The Coal Bearing Areas (Acquisition and Development) Act, 1957, The Coal Mines (Special Provision) Act, 2015, The Jharkhand Mineral Dealers Rules, 2007 and The Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017. By referring to the aforesaid provisions it has been stated that only because the coal block has been allotted in favour of the respondent No.5 and in absence of any prospecting licence, having not been issued by the State of Jharkhand, the impugned decision cannot be said to be proper since the same is a source of their livelihood. 8. On the other hand, learned Advocate General while arguing for the State of Jharkhand has vehemently opposed the submissions and grounds taken by the petitioners by submitting that the land in question was earlier allotted in favour of the Damodar Valley Corporation in the year 2007 and in pursuance to the order passed by the Hon''ble Apex Court in the case of Manohar Lal Sharma vs. Principal Secretary and Ors. in Writ Petition (Crl.) No.120 of 2012 with W.Ps.(C) Nos.463, 515 of 2012 and 283 of 2013 , Government of India has come out with a Coal Mines (Special Provision) Act, 2015 necessitating the Parliament to come out with the aforesaid Act in view of the judgment passed by the Hon''ble Apex Court in the aforesaid cases vide judgment dated 25 th August, 2015 with its order dated 24 th September, 2014 for which the allocation of coal blocks have been cancelled and issued a direction with regard to such coal blocks and the Central Government in pursuance to the said directions in order to take immediate action to implement the said order, in the aforesaid Act, the provision has been made for auction of allotment of the coal block already allotted and having been cancelled by the Hon''ble Apex Court in the aforesaid cases, it has been pleaded by them in the counter affidavit that the coal block was allotted over the land in question to Damodar Valley Corporation in pursuance to the provision of Section 3(3)(a)(i) of the Coal Mines (Nationalization) Act, 1973 by granting prospecting licence vide order dated 27 th October, 2008 and in pursuance to the order passed by the Hon''ble Apex Court allotment made vide order dated 27 th October, 2008 in favour of the Damodar Valley Corporation is now being cancelled, therefore by following the provision of The Coal Mines (Special Provision ) Act, 2015 the coal mines over Saharanpur-Jamrupani (land in question) was allotted to Uttar Pradesh Rajya Vidyut Utpadhan Nigam Limited-respondent No.5 vide order dated 13 th August, 2015 and in pursuance thereto, respondent No.5 has applied for grant of prospecting licence which was forwarded by the Deputy Commissioner, Dumka before the competent authority of the State Government and while the matter was pending there, efforts have been taken by the Secretary, Department of Mines and Geology, Government of Jharkhand for issuing the letter on 11 th October, 2018 to remove 120 crushers licence and 13 mining lease which are existing over the land in question. The said decision was taken in pursuance to the communication being made by the Principal Secretary, Department of Energy, Government of Uttar Pradesh and while the matter was pending before the Secretary for issuance of prospecting licence in favour of the respondent No.5, the Director (Mines) has issued a communication to the Deputy Commissioner, Dumka to take steps for clearing the land in question where the mining operation and the crusher units are going on and in pursuance to the aforesaid decision, the impugned decision has been issued, communicating the petitioner to remove all infrastructures along with the equipments from the land in question within 30 days, failing which, appropriate action would be taken. 9. Learned Advocate General submits that when the issue of prospecting licence is lying pending for its issuance on the basis of the valid allotment order issued in favour of the respondent No.5 for coal block in pursuance to the provision of Section 3(3)(a)(i) of The Coal Mines (Nationalization) Act, 1973, the same is having binding effect upon the State of Jharkhand. He submits that this case is fit to be dismissed on the ground of non-joinder of necessary party since Damodar Valley Corporation, the prior allottee, has not been impleaded as party to the proceeding and the competent authority of the Central Government, who has issued coal block in favour of the respondent No.5, has also not been impleaded as party to these writ petitions. According to him, the competent authority of the Ministry of Coal, Government of India is the necessary party, since the coal block has been issued in favour of the respondent No.5 by the Central Government. He further submits that these writ petitions are also fit to be dismissed on the ground that the order dated 13 th August, 2015 by which the coal block i.e. Saharanpur-Jamrupani coal mines was allotted to the respondent No.5 has not been questioned and therefore unless the said coal block will be held to be improper/illegal then only the petitioners can have any right over the land in question. 10. 10. Learned Advocate General has also referred to the various provisions of The Coal Mines (Special Provision) Act, 2015 and its implication and has submitted that for better utilization of the natural resources, the Central Government is the competent authority to take such decisions under the provision of The Mines and Minerals (Development and Regulation) Act, 1957. He further relied upon the provision of Jharkhand Minor Mineral Concession Mining Rules, 2017 wherein there is a provision under Rule 30(a) that in case of such category of land wherein the licence has been granted for minor mineral as in case there is major mineral lying over the said land, in that situation, the lease holder pertaining to minor mineral had to surrender the licence, failing which, it will be cancelled after giving a notice of 30 days. He submits by referring to the impugned decision that no such decision has yet been taken rather the petitioners have only been directed that all commodities, equipments be removed within 30 days, failing which the sanctioned mining lease/dealer licence would be cancelled by taking appropriate legal action, therefore, no cause of action has yet been accrued for invoking the extraordinary jurisdiction conferred to this Court under Article 226 of the Constitution of India , since merely on account of removing the equipments and the commodities lying over the land, cannot be said to be a cause of action unless the licence would be cancelled. 11. Learned counsel appearing for the petitioners have submitted that the question of removal of equipments from the land in question is nothing but restraining the petitioners from carrying out either mining work or the crusher units and therefore, it will be said to be restraining the petitioners from carrying out the aforesaid work even during the subsistence period of the licence. They have submitted by referring to the provision of Rule 22(3), 22(4) and 22(5) of the Jharkhand Minor Mineral Concession Rules, 2004 and have submitted that none of the ingredients of the aforesaid provision is attracted and therefore the authority while taking the aforesaid decision have not applied its mind. They further submits that they are ready to follow the statutory provision either promulgated by the Central Government or the State Government but the exercise is to be taken by the competent authority of the State Government in accordance with law. They further submits that they are ready to follow the statutory provision either promulgated by the Central Government or the State Government but the exercise is to be taken by the competent authority of the State Government in accordance with law. But herein, the impugned decision has been taken without following any procedure of law as per the statute applicable. 12. When the hearing has been concluded, learned counsel for the petitioners have submitted that they may be provided with an opportunity of hearing so that they may get a chance before taking any penal action against them, so far as it relates to cancellation of licence. 13. Learned Advocate General, however, has not agreed to such submission by submitting that no cause of action has accrued since the licence has not yet been cancelled, therefore, no such order may be passed. 14. Having heard the learned counsel for the parties and after perusing the impugned decision taken by the authority it is evident that the Deputy Commissioner, Dumka has acted in terms of the decision taken by the Director (Mines) as contained in letter No.2558 dated 09.10.2018 by which the petitioners have been directed to remove all equipments and infrastructures lying over the land in question to provide steps for conducting survey over the land in question and to assess the possibility of coal which has been allotted in favour of the respondent No.5. 15. 15. There is no dispute about the position of law that if any decision is being taken by the Central Government either under The Coal Bearing Areas (Acquisition and Development) Act, 1957 or any act promulgated by the Central Government so far as it relates to uses of the natural resources, Union of India will have its dominance over the decision if taken by the State Government since the natural resources are under Union List and in view of provision of Section 17 (A) of The Mines and Mineral (Development and Regulation) Act, 1957 which speaks as follows:- "17-A.Reservation of area 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 license 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. [(1-A) The Central Government may, in consultation with the State Government, reserve any area not already held under any prospecting license 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 license 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. [(2-A) Where in exercise of the powers conferred by sub-section (1-A) 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. (2-B) 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. (2-C) A mining lease granted to a Government company or corporation, or a joint venture, referred to in sub-sections (2-A) and (2-B), 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 (1-A) 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 license or mining lease.]" 16. It is evident from the provision as quoted hereinabove that under Section 17(A)(1) of the Act, 1957 , the Central Government has the power to reserve any area to conserve any mineral and the said exercise is to be taken by the Central Government after consultation with the State Government. Under sub-section (1A) of Section 17(A), the Central Government has similar power to reserve area for undertaking prospecting licence or mining operations through a Government Company. Under sub-section (1A) of Section 17(A), the Central Government has similar power to reserve area for undertaking prospecting licence or mining operations through a Government Company. As far as Section 17(2) is concerned this provision give powers to the State Government to reserve area not held under any prospecting licence or mining lease, for undertaking prospecting or mining operations through a Government owned companies, however, this can be done with the approval of the Central Government and the area so reserved should be notified in the official Gazette along with the minerals for that area has been reserved. 17. Section 3(g) of the Act needs to be referred which reads as follows:- "(g) "prospecting license" means a license granted for the purpose of undertaking prospecting operations;" 18. The definition of prospecting licence suggest that after allotment of the coal block the allottee will have to be issued a prospecting licence for prospecting operation in order to assess the reserve of coal over the land in question and for that a free area is required to be handed over by the State Government in order to comply with the decision of Central Government taken under the provision of Special Provision Act, 1957. 19. It is evident from the provision aforesaid that in the public interest the Central Government has been conferred with the power to take under its control the regulation of Mines and the development of Minerals to the extent hereinafter provided. 20. It is thus, evident that the Central Government with the approval of the State Government is supposed to carry out the mining operations so far as the major minerals are concerned. 21. In the backdrop of this provision the case in hand is that the coal block has been allotted in favour of the respondent No.5 which earlier was allotted in favour of Damodar Valley Corporation which in pursuance to the order passed by the Hon''ble Supreme Court in the case of M.L. Sharma (supra), the allotment having been cancelled, the Central Government thereafter has formulated the Act, 2015 for allotting the coal block, and in pursuance thereto, respondent No.5 has been selected after following due procedure as laid down therein and the coal block over the land in question has been allotted in its favour, thereafter respondent No.5 has made an application for getting a prospecting licence. 22. 22. At this stage, definition of prospecting licence needs to be referred which means any operation undertaken for the purpose of exploring, locating or proving minerals deposits meaning thereby after allotment of the coal block for getting the prospecting operations an application has been made before the State Government to get licence for the same. In pursuance thereto, the application has been made by the respondent No.5 and when it was pending before the competent authority of the State of Jharkhand, it has been found by them that over the said land in question the licence have been issued for carrying out mining work and crusher units by the licencing authority who happens to be the district level authority and therefore, a decision has been taken for getting the land free so that the licence for prospecting operation may be issued in favour of respondent No.5, which suggest that, there is approval of the State Government on the decision taken by the Central Government as contemplated under the provision of Section 17(A) of the Act, 1957. Reference of provision of Article 254 of the Constitution of India needs to be made here which speaks as follows:- "254. Inconsistency between laws made by Parliament and laws made by Legislatures of State. - (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament, which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State." 23. It is evident that if any enactment has been made by the Central Government having assented by the President that will be binding effect upon the State Government as stipulated under the provision of Article 254(1) but vice-versa, if any enactment has been made by the State Government having been accepted by the President that will prevail upon the enactment of the Central Government but if assented by the Governor and not by the President the enactment brought by the State Government will not prevail upon the Central Government, reference in this regard be made to the judgment rendered in the case of Smt. K.A. Annamma v. Secretary, Cochin Co-operative Hospital Society Ltd., reported in AIR 2018 Supreme Court 422 , wherein the proposition has been laid down in relation to the Article 254 of the Constitution of India which attracts in cases where the law is enacted by the Parliament and such legislature on the same subject which falls in List-3, Concurrent List. In such a situation if any inconsistency arises between the provisions of the Central Government and the said Act, if the State has received the assent of the President, will prevail over the Central Act in the concerned State by virtue of Article 254 (2) of the Constitution , but if the State Act has received the assent of the Governor, then the Central Act will prevail over the State Act by virtue of Article 254 (1) of the Constitution. 24. 24. Here in the instant case, it is admitted position that the natural resources are in the Union List and therefore the enactment made by the Central Government will prevail over the enactment made by the State Government, however, this is not the case here because there is no conflicting act enacted by the State of Jharkhand rather in view of the provision of Section 17(A) of the Act, 1957, as discussed hereinabove, the Central Government will prevail although the approval of the State Government is required and it is not the case of the petitioners that there is no approval of the State Government so far as the allotment of coal block in favour of the respondent No.5 is concerned, rather the State has got its approval and for that, in order to issue a prospecting licence, the endeavours are being taken by taking impugned decisions. 25. At this juncture, reference of the judgment rendered by Hon''ble Supreme Court in the case of Geomysore Services (I) Pvt. Ltd. vs. Hutti Goldmines Company Ltd. and Ors. in Civil Appeal No.2538 of 2017 wherein at paragraph 39 it has been held that the State is the owner of the land and minerals. However, the control and regulation of mines and development or mineral are in the domain of the Central Government and the Government in its legislative power to make any law in respect of regulation of mines and mineral development in so far as that field is covered by the provision of the Act, it is only if the filed is vacant that the State can exercise its legislative powers, otherwise, it has to exercise its power strictly in accordance with law and the powers specifically conferred on the State Government by the Act and the Rules. It is also well settled position of law that while exercising the power of the reservation vested in Section 17(A)(2) of the Act, the State Government has to take approval of the Central Government. 26. It is also well settled position of law that while exercising the power of the reservation vested in Section 17(A)(2) of the Act, the State Government has to take approval of the Central Government. 26. The petitioners since have not questioned the allotment order issued in favour of the respondent No.5 and further even not impleaded the Damodar Valley Corporation, the pre allottee, as party and moreover, the competent authority of the Central Government, who happens to be the largest say in the natural resources across the country, has not been impleaded as party, this Court is of the view that by allotment of the coal block in favour of the respondent No.5 by the competent authority a right has been created in its favour and when the petitioners are questioning the decision of the authority in getting the land cleared, the most important thing was with the petitioners to assail the order of allotment, but having not been questioned, it does suggest that they are agreed with the allotment of the coal block in favour of the respondent No.5. Due to simple position of law that if any right has been created, as the petitioners'' claim over the land in question upon which the coal block has been allotted, have not being questioned, it will amount to acceptance of the said allotment order created in favour of the respondent No.5. 27. This Court after appreciating the arguments advanced on behalf of the learned counsel for the petitioners that they are not disputing the legal position as provided under the statute but they are the licencee which has been issued under the statutory provision enacted by the State Government, at least they may be provided an opportunity of being heard. 28. Learned Advocate General has fairly submitted at this juncture that the Deputy Commissioner, Dumka may be directed to issue appropriate notices to the petitioners in order to provide an opportunity of hearing with respect to their licences either of mining lease or the crusher units by taking appropriate decision in accordance with law. 29. This Court after going across the impugned decision is of the view that the petitioners have been directed to remove the equipments lying over the land in question, failing which, the licences would be cancelled but as yet, licences have not been cancelled. 29. This Court after going across the impugned decision is of the view that the petitioners have been directed to remove the equipments lying over the land in question, failing which, the licences would be cancelled but as yet, licences have not been cancelled. Therefore, this Court after considering the arguments advanced on behalf of the learned counsel for the petitioners as also the learned Advocate General, considers it just and proper that when the petitioners have been issued with a licence under the statutory provision by the State of Jharkhand, cancelling the same without following procedure of law would not be proper and will be against the principles of natural justice, therefore, they are required to be given an opportunity by the competent licencing authority as per the provision made under the statute applicable. 30. In view thereof, the licencing authority is directed to issue show cause notice to the petitioners within a week from the date of receipt of copy of the order and order shall be passed by the said authority within 30 days from the date of receipt of the reply of the show cause notice, if any. In case of non-filing of the response to the show cause notice, the licencing authority is at liberty to take decision in accordance with law. Accordingly, all these writ petitions are hereby disposed of.