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2019 DIGILAW 2828 (RAJ)

State of Rajasthan v. Hindustan Zinc Ltd.

2019-11-13

DINESH MEHTA

body2019
JUDGMENT Dinesh Mehta, J. - In the present writ petition, the petitioner-State of Rajasthan invoking supervisory jurisdiction of this Court under Article 227 of the Constitution of India, has called in question the order dated 14.12.2018, passed by the Revisionary Authority i.e. Joint Secretary, Government of India in a revision petition filed by the respondent - Hindustan Zinc Ltd. (hereinafter referred to as "the HZL"). 2. Though, this case has a long history, but all the facts are not needed to be noticed; only facts relevant are being highlighted hereunder:- 2.1. On 01.10.1993, the respondent - HZL filed an application for grant of prospecting license of 292 and 565.75 Hectares for Lead, Zinc and associated minerals near village Sindesar Khurd, Tehsil Railmagra, District Rajsamand, which was forwarded to the Government of India in the year 1997 for prior approval. 2.2. The Central Government gave prior approval for grant of prospecting license for Sphalerite and Galena (being ores of Zinc and Lead) over area of 216.675 Hectares on 10.11.2006 and in furtherance whereof, the Additional Director recommended the Secretary to the Government of Rajasthan to approve and pass appropriate orders. 2.3. Before any order in furtherance of respondent's application could be passed, one M/s. Crown Mining Pvt. Ltd. (hereinafter referred to as "the CMPL") moved an application dated 07.04.2004. 2.4. On 31.03.2005, the State Government recommended to the Central Government that a reconnaissance permission be granted to CMPL with a note of caution that area of 57.00 sq. kms was in conflict with the area covered by the area demanded by HZL for grant of prospecting license. 2.5. Be that as it may, CMPL was however granted reconnaissance permission on 01.08.2005, subject however to certain conditions, including a condition that it shall not have any preferential right for grant of prospecting license, in respect of overlapping area, held under prospecting license or mining lease on the date of execution of prospecting license. 2.6. Meanwhile, on 07.07.2008 CMPL moved an application for grant of mining lease. The said application for grant of mining lease remained pending with the State Government until it was finally rejected on 09.11.2017. 2.7. Apropos respondent's application, a notice dated 03.11.2014 was issued, inter alia, eliciting its response, as to why its application for grant of prospecting license be not rejected as the application for grant of mining lease submitted by CMPL was pending. 2.8. 2.7. Apropos respondent's application, a notice dated 03.11.2014 was issued, inter alia, eliciting its response, as to why its application for grant of prospecting license be not rejected as the application for grant of mining lease submitted by CMPL was pending. 2.8. On 23.12.2014, finding respondent's reply not satisfactory, the State Government rejected the application dated 01.10.1993. The application of HZL was rejected solely for the reason that CMPL is having a valid reconnaissance permit dated 01.08.2005, for which the area applied by it was reserved and that said CMPL has filed an application (on 07.07.2008) for grant of mining lease. 2.9. Respondent obviously felt aggrieved of the order dated 23.12.2014 of the State Government and, thus, preferred a revision petition under Section 30 of the Mines and Mineral (Development and Regulation), Act 1957 (hereinafter referred to as "the MMDR Act"),read with Rule 36 of the Minerals (Other Than Atomic and Hydro Carbons Energy Minerals) Concession Rules, 2016 (MCR, 2016) (hereinafter referred to as "the Rules of 2016"). 2.10. The Revisionary Authority rejected the revision petition filed by the respondent - HZL, without going into the merit by observing that in light of the provisions of Section 10(A)(1) of the MMDR Act, the respondent has no right to get a prospecting license. 2.11. It is pertinent to mention that during the course of hearing of above Revision, the State Government had brought to the notice of Revisionary Authority that State Government has already initiated the process to reject application for grant of mining lease filed by the CMPL. 2.12. It will not be out of place to reproduce the operative part of the order dated 08.09.2017, passed by the Revisionary Authority, which reads thus:- "8.5. On the basis of the provisions of Sections 10(A)(1) and thereafter the observations of the Hon'ble High Court of Andhra Pradesh and Madhya Pradesh, it is clear that the Provisions of Section 10A(1) of the MMDR Act is absolute to Section 10A(2). Only those applications remain eligible which satisfy the provision of Section 10A(2). Therefore, instant case does not fulfill these conditions and the Revisionist can not claim right over his ML application. 8.6 The main grievance of the Revisionist was against the grant of RP and ML to the IP. Only those applications remain eligible which satisfy the provision of Section 10A(2). Therefore, instant case does not fulfill these conditions and the Revisionist can not claim right over his ML application. 8.6 The main grievance of the Revisionist was against the grant of RP and ML to the IP. The State Government vide letter dated 20.07.2017 informed that process is being taken to reject the ML application of the IP following which Revisionist will have no grievance. 8.7 Keeping view of the facts stated above specially after insertion of Section 10A of the MMDR (Amendment) Act, 2015, the Revisionist cannot get any benefit in the changing scenario as granting mineral concession can only be done through auction process. Therefore, I do not find any merit in the Revision Application. Hence Revision Application is liable for rejection and is hereby rejected." 2.13. The respondent - HZL preferred a writ petition against aforesaid order dated 08.09.2017, passed by the Revisionary Authority, which came to be allowed in part, by this Court vide its order dated 30.08.2018. While allowing HZL's writ petition, the Co-ordinate Bench of this Court found that the Revisionary Authority has non-suited the respondent company on the basis of provisions of Section 10A of the MMDR Act, however without giving any reasoning in relation thereto. It will not be out of place to reproduce relevant part of the order dated 30.08.2018, passed by this Court, which runs thus:- "The Revisionary Authority, however, while rejecting the revision application noted the submissions made by the various authorities in detail but none of the submissions have been discussed. Para 8.5 of the said order shows that the said applications have been simply rejected on the ground that they do not satisfy the provision of Section 10A(2) of MMDR Act. No reasoning has been given and, therefore, to the said extent the same is non speaking order and passed without application of mind." 2.14. The matter, thus, went back to the dockets of Revisionary Authority - Joint Secretary, Govt. of India, who has passed the order under challenge on 14.12.2018. This time, the Revisionary Authority has allowed the revision filed by the respondent company, essentially because the application filed by CMPL had been rejected and the edifice of the impugned order had gone. Operative portion reads thus:- "6. I have applied my mind to documents and arguments heard. of India, who has passed the order under challenge on 14.12.2018. This time, the Revisionary Authority has allowed the revision filed by the respondent company, essentially because the application filed by CMPL had been rejected and the edifice of the impugned order had gone. Operative portion reads thus:- "6. I have applied my mind to documents and arguments heard. In the impugned order the reason was given that M/s. Crown Mining Private Ltd. has applied for Mining Lease, hence, the case of M/s. Hindustan Zinc Limited was rejected. Since the Mining Lease application of M/s. Crown Mining has been rejected, the basis of impugned order is gone and hence liable to be set aside. The impugned order is set aside. The Rule 55 of the Minerals (Other than Atomic and Hydro Carbon Energy Mineral Concession) Rules, 2016 provides for dealing with the case under Mineral Concession Rules, 1960. The State Government should proceed as per that in the current case. 7. Parties concerned be informed accordingly." 3. Mr. Digvijay Singh Jasol, learned counsel for the petitionerState oppugning the above order dated 14.12.2018, contended that the Revisionary Authority has erred in allowing the revision petition filed by the respondent Company and directing the State Government to decide its pending application, treating the same to be alive in light of the provisions contained in Rule 55 of the Minerals (Other than Atomic and Hydro Carbon Energy Mineral Concession)Rules, 2016. He argued that despite noting the contention,Revisionary Authority, completely overlooked the stand of the State that the respondent Company is not entitled for grant of mining lease in view of the amendment brought into effect in the MMDR Act. 4. Inviting attention of the Court towards the reply filed by the State, so also opening part of the order impugned, he submitted that the Revisionary Authority was required to decide petitioner's revision petition in light of the statutory provisions obtaining on the date, particularly, when it's earlier order was simply based upon such amendment brought in the MMDR Act, 1957. 5. Dr. Sachin Acharya, learned counsel for the respondent, on the other hand, supported the order under challenge passed by the Revisionary Authority and argued that Rule 55 of the Rules of 2016 saves the application filed by the respondent-Company. 5. Dr. Sachin Acharya, learned counsel for the respondent, on the other hand, supported the order under challenge passed by the Revisionary Authority and argued that Rule 55 of the Rules of 2016 saves the application filed by the respondent-Company. He argued that the reason, which earlier prevailed over the State Government that the application of M/s. Crown Mining was pending and it has been granted prospecting license, has ceased to exist, as the same had since been rejected on 09.11.2017. Hence, it was the respondent-HZL alone, whose application/rights were pending consideration with respect to the subject area and there is no error in the order impugned, argued learned counsel for the respondent. 6. Mr. Acharya, further argued that, as a matter of fact, since the Government had issued in-principle approval for grant of prospecting license to the respondent - Company, it's right stood crystallized and freezed and thus saved by Rule 55 of the Rules of 2016. Thus, the order of the Revisionary Authority cannot be faulted with. 7. Having heard learned counsel for the parties and considered the material available on record, this Court finds that the order of the Revisional Authority is neither in sync with the statutory provisions nor does it properly adjudicate the facts obtaining in the present case. 8. The Revisional Authority, has held petitioner's application to be saved by virtue of provisions contained in Rule 55 of the Rules of 2016, but, however, while directing the State Government to decide the respondent's entitlement, he has completely omitted to take into consideration the amendment brought in the MMDR Act, particularly the amendment inserted in the form of Section 10A in the Act, which provides that after the amendment, the mining lease will be granted only by way of auction and all applications except, which are saved under Sub-Section (2) shall stand rejected. 9. As a matter of fact, having over all appraisal of the factual matrix obtaining in the case, this Court is of the view that though respondent's revision petition deserved acceptance, as the edifice of the order of the State Government dated 23.12.2014 that CMPL's application was pending, had gone consequent to rejection of CMPL's application on 09.11.2017, but that by itself does not entail grant of prospecting license - its application stands revived, is the effect of acceptance of the Revision. 10. 10. True it is, that in the first round, when the respondent's Revision was being considered (on 08.09.2017), the fact of rejection of CMPL's application did not exist and the revision petition filed by HZL was rejected in the face of the provisions contained in Section 10A (1) and 10A (2) of the Act of 1957. However, as a result of order dated 30.08.2018, passed by this Court in S.B. CWP No.9697/2018, the revision petition was restored back and the first order dated 08.09.2017 got annulled. 11. When the revision petition was again being heard, it came on record that application for grant of mining lease of said CMPL had already been rejected by the State Government on 09.11.2017, as such, the foundation of order of the State Government dated 23.12.2014 had lost its ground. The Revisional Authority was perfectly justified in allowing respondent's revision. 12. Had the Authority below allowed respondent's revision on this count alone and refrained from making any observation particularly about applicability of Rule 55 of the Rules of 2016, the State, perhaps, could neither have any concern nor would have raised the grievance. But, a perusal of the order impugned reveals otherwise. 13. A perusal of the order impugned reveals that the Revisionary Authority has held respondent's application to be alive in light of Rule 55 of the Rules of 2016. 14. In considered opinion of this Court, there was no occasion for the Revisional Authority to make such observation regarding applicability of the provisions of Rule of 2016. 15. As is clear from the facts, the order of the State Government dated 23.12.2014 has been set aside by him and rightly so, as the application of CMPL has been subsequently rejected. But he was required to be alive to the fact that at the stage of first round, the Revisionary Authority had non-suited the respondent on the ground of amendment brought into effect in the form of Section 10A of the MMDR Act, 1957, this he was expected, if not obliged to deal with such aspect also. 16. Given the fact that Coordinate Bench had set aside his earlier order dated 08.09.2017 with the observation that no reason had been stated as to how the respondent's application was hit by Section 10A of the MMDR Act. He ought to have delved upon the applicability and effect of Section 10A of the MMDR Act, 1957. 16. Given the fact that Coordinate Bench had set aside his earlier order dated 08.09.2017 with the observation that no reason had been stated as to how the respondent's application was hit by Section 10A of the MMDR Act. He ought to have delved upon the applicability and effect of Section 10A of the MMDR Act, 1957. 17. It is noteworthy that this Court had set aside his earlier order, not because of the fact that such provisions were not applicable, but because of the fact that no reason had been ascribed apropos applicability of the provisions of Section 10A of the MMDR Act, 1957. 18. In second round, while deciding the revision petition on 14.12.2018, the crucial fact that CMPL's application has been rejected has come to fore, for which he had allowed the revision petition of the respondent but in such case, he should not have left the issue of Section 10A undetermined and undecided. 19. Be that as it may, since, the argument in relation to Section 10A of MMDR Act has been noticed by the Revisionary Authority and notwithstanding anything, the same will have its effect; while affirming the order dated 14.12.2018, impugned in the present writ petition, this Court deems it appropriate to observe that the State Government while deciding petitioner's application dated 01.10.1993, while considering applicability, import and effect of Rule 55 of the Rules of 2016, shall also take into account the provisions of Section 10A of the MMDR Act, 1957, which has been introduced in the statute book on 12.01.2015. 20. As an abundant caution, this Court deems it appropriate to observe that it has not given any finding about respondent's right of getting mining lease in furtherance of it's application or applicability of provisions of Section 10A of the Act of 1957 or Rule 55 of the Rules of 2016. 21. Thus, any observation made herein will not influence the decision of the State Government and will not come in its way of passing appropriate order, in accordance with law. 22. The respondent - Hindustan Zinc Ltd. will also be free to make its submission before the State Government by way of submitting appropriate representation and placing material or law that its application is not barred by Section 10A of the Act of 1957. 23. 22. The respondent - Hindustan Zinc Ltd. will also be free to make its submission before the State Government by way of submitting appropriate representation and placing material or law that its application is not barred by Section 10A of the Act of 1957. 23. Since, the matter for grant of prospecting license is pending since 1993, the State Government is directed to decide the matter in furtherance of the order dated 14.12.2018, as modified by the order instant, within a period of two months from today. 24. The writ petition is accordingly disposed of in above terms. 25. Stay petition also stands disposed of accordingly.