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2021 DIGILAW 183 (RAJ)

Hindustan Zinc Limited v. State of Rajasthan

2021-01-21

RAMESHWAR VYAS, SANGEET LODHA

body2021
ORDER : Sangeet Lodha, J. 1. The matter comes up on an application (IA No. 2/19) preferred by the respondents for vacating the interim order dated 8.8.16 passed by this Court, which reads as under: "In the meanwhile, the respondents are restrained from taking any coercive action against the petitioner for the liability arising under the District Mineral Foundation Rules, 2016 for the period prior to 31.5.2016." 2. By way of this writ petition, the petitioner has questioned vires of Section 9B of the Mines and Minerals (Development and Regulation) Act, 1957 ('Act of 1957'), Rule 1(3) of District Mineral Foundation Trust Rules, 2016 ('the Rules of 2016') and Rule 2 of Mines & Minerals (Contribution to District Mineral Foundation) Rules, 2015 ('the Rules of 2015'). The petitioner has also questioned legality of order dated 16.9.15 issued by the Ministry of Mines, Government of India, directing that the District Mineral Foundation established under Section 9B of the Act of 1957 shall be deemed to have come into force from 12.1.15, the order dated 8.7.16 issued by the Director, Mines, Rajasthan, directing recovery of contribution to District Mineral Fund (DMF) from the mining lease holder w.e.f. 12.1.15 and the demand notice dated 15.7.16 issued to the petitioner pursuant thereto. 3. The application seeking vacation of the interim order is preferred by the respondents inasmuch as, the validity of Rules 1(2) & 1(3) of the Rules of 2016 stands upheld by this Court vide decision dated 8.11.17 rendered in D.B.C. Writ Petition No. 7646/16-Federation of Mining Association of Rajasthan & Ors. vs. State of Rajasthan & Ors. and the Supreme Court in Federation of Indian Mineral Industries & Ors. vs. Union of India & Anr., (2017) 16 SCC 186 , has categorically held that the contribution to DMF is required to be made by the holder of a mining lease or a prospecting license-cum-mining lease in the case of mineral other than coal, lignite and sand for stowing w.e.f. 17.9.15 when the rates were prescribed by the Central Government. Further, keeping in view the said decisions, the interim order granted in identical petition being D.B.C. Writ Petition No. 7909/16-M/s. JK Lakshmi Cement Limited vs. Union of India & Ors., has already been vacated by this Court vide order dated 23.10.19. 4. Further, keeping in view the said decisions, the interim order granted in identical petition being D.B.C. Writ Petition No. 7909/16-M/s. JK Lakshmi Cement Limited vs. Union of India & Ors., has already been vacated by this Court vide order dated 23.10.19. 4. It is submitted that keeping in view the Bench decision of this Court and the decision of the Apex Court, referred supra, almost all the mining lease holders have made payment of contribution to DMF w.e.f. 17.9.15 onwards. Even the petitioner has paid the contribution post May, 2016 and it is only qua the period from 17.9.15 to 31.5.16, the amount of contribution is due. Precisely, the contention of the respondents is that the liability of contribution to DMF w.e.f. 17.9.15 having been settled by the Apex Court in Federation of Indian Mineral Industries's case (supra), there is no justification for permitting the petitioner to withhold the payment for the period from 17.9.15 to 31.5.16. 5. A reply to the application has been filed on behalf of the respondents taking the stand that interim order dated 8.8.16 granted by this Court in favour of the petitioner stands confirmed in presence of the State Government vide order dated 6.7.18 and therefore, the application preferred for vacation of the interim order is not maintainable in the eyes of law. It is further submitted that on 8.11.17, in light of the decision of the Supreme Court in the case of Federation of Indian Mineral Industries (supra), while deciding the other connected matters, after hearing of the arguments raised on behalf of the petitioner, the present writ petition was detached from the bunch and was posted for completion of the pleadings and was directed to be decided separately. It is submitted that the application preferred by the State is not maintainable for yet another reason that the State Government had earlier filed an application for disposal of the writ petition in light of judgment passed by this Court dated 8.11.17. According to the petitioner, the controversy raised in the present writ petition is not identical to the controversy raised in M/s. JK Lakshmi Cement Ltd.'s case (supra) inasmuch as, the petitioner has also challenged the vires of Rule 2 of the Rules of 2015 for prescribing discriminatory rates of contribution to DMF for mining leases granted prior to 12.1.15 and the post 12.1.15. It is submitted that in JK Lakshmi Cement Ltd.'s case (supra), challenge was limited to the grounds of retrospectivity of the Rules of 2016 and therefore, in light of the judgment passed by the Apex Court, the stay was vacated. It is submitted that the emphasis placed by the State on payment of DMF contribution by other mining lease holders for the period from 17.9.15 to 31.5.16 is not relevant to the claim of the petitioner and the respondent cannot evade the challenges made by the petitioner on the ground that other lease holders are making payments. 6. Mr. Sandeep Shah, learned Additional Advocate General appearing for the State contended that the issue with regard to the contribution to DMF with retrospective effect having been settled by the Apex Court holding that DMFs established or deemed to have been established from the date prior to issuance of the relevant notifications does not make their operation retrospective and the contributions to DMF are required to be made by the holder of mining lease w.e.f. 17.9.15 when the rates were prescribed by the Central Government, the petitioner cannot be permitted to withhold the amount of contribution for the period from 17.9.15 to 31.5.16. Learned AAG submitted that the stand of the petitioner that the issues raised in the present writ petition are different than the issues raised in JK Lakshmi Cement Ltd.'s case (supra), is absolutely incorrect inasmuch as, in JK Lakshmi Cement Ltd.'s case (supra) also, the vires of Section 9B of the 1957 as also the different rates of contribution prescribed in respect of the mining lease granted prior to 12.1.15 and post 12.1.15 are challenged. Learned AAG submitted that when in identical writ petitions, interim order has been vacated by this Court and other mining lease holders are paying the contribution to DMF w.e.f. 17.9.15, the petitioner cannot be differently treated and therefore, the interim order passed by this Court deserves to be vacated. 7. On the other hand, Mr. Learned AAG submitted that when in identical writ petitions, interim order has been vacated by this Court and other mining lease holders are paying the contribution to DMF w.e.f. 17.9.15, the petitioner cannot be differently treated and therefore, the interim order passed by this Court deserves to be vacated. 7. On the other hand, Mr. R.N. Mathur, senior counsel appearing for the petitioner, while reiterating the stand taken in reply to the application noticed above, submitted that on 8.11.17 when the present writ petition and connected matters were taken up for consideration by this Court, keeping in view the additional issues raised by the petitioner, while deciding other writ petitions, the present writ petition was kept pending and time was granted to the respondents to file the reply and thereafter, the interim order was confirmed by this Court vide order dated 6.7.18 and thus, the application preferred on behalf of the State for vacating the interim order is not maintainable. Learned senior counsel submitted that the petitioner besides questioning the retrospectivity of the Rules of 2016, has also challenged the vires of Rule 2 of the Rules of 2015 providing different rates of contribution in respect of the mining lease granted on or after 12.1.15 or prior to it and thus, it cannot be said that the issues involved in the present petition and in JK Lakshmi Cement Ltd.'s case (supra) are identical. In this regard, learned counsel drawn attention of the Court to the grounds raised in the petition. Learned counsel submitted that the fund already collected is not being utilised by the State Government, is also a relevant aspect to be considered by this Court. However, it is not disputed by the learned counsel that the petitioner is depositing the contribution to the DMF at the rate notified post May, 2016. 8. We have considered the rival submissions and perused the material on record. 9. It is true that the interim order dated 8.8.16 granted by this Court has been confirmed by a coordinate Bench of this Court vide order dated 6.7.18. 8. We have considered the rival submissions and perused the material on record. 9. It is true that the interim order dated 8.8.16 granted by this Court has been confirmed by a coordinate Bench of this Court vide order dated 6.7.18. But then, a party to the writ proceedings is not precluded from making an application for modification/vacation of the interim order granted by the Court in view of the subsequent event and thus, keeping in view the decision of this Court in JK Lakshmi Cement Ltd.'s case (supra), upholding the vires of Rule 1(3) of the Rules of 2016 and the decision of the Supreme Court in Federation of Indian Mineral Industries's case (supra), laying down that contributions to the DMF are required to be made by the holder of a mining lease or prospective license-cum-mining lease in case of minerals other than coal, lignite and sand of stowing w.e.f. 17.9.15 when the rates were prescribed by the Central Government, the application preferred by the State for vacating the interim order cannot be held to be not maintainable. 10. Indisputably, besides Rule 1(3) of the Rules of 2016, the petitioner has also questioned vires of Section 9B of the Act of 1957 and Rule 2 of the Rules of 2015. But a perusal of the petition preferred by JK Lakshmi Cement Ltd.'s case (supra) listed before the Court alongwith the present writ petition, reveals that the petitioner therein has also challenged Section 9B of the Act of 1957. Of course, there is no specific challenge in the petition to Rule 2 of the Rules of 2015 but it incorporates the challenge to the notification dated 17.9.15 issued by the Central Government, whereby the Rules of 2015 were notified. Suffice it to say that the controversy raised in JK Lakshmi Cement Ltd.'s case (supra) and the present writ petition are essentially identical. Thus, the contention sought to be raised by the petitioner that the controversy raised in the present petition is different than the connected petition of JK Lakshmi Cement Ltd.'s case (supra) listed before this Court, is not found factually correct. 11. It is noticed that by way of interim order dated 8.8.16, this Court restrained the respondents from taking any coercive action against the petitioner for recovery of the liability of contribution to DMF for the period prior to 31.5.16. 11. It is noticed that by way of interim order dated 8.8.16, this Court restrained the respondents from taking any coercive action against the petitioner for recovery of the liability of contribution to DMF for the period prior to 31.5.16. Apparently, the interim order was passed by this Court as aforesaid, taking into consideration the issue of retrospectivity with regard to the liability of payment of contribution to DMF in terms of the Rules of 2015 and the Rules of 2016 and not the issue of different rate prescribed for the mining lease granted post 12.1.15 and prior to it. Now, since the question with regard to the retrospectivity of the liability for payment of contribution by the mining lease holders to the DMF having been settled by the Apex Court as aforesaid in Federation of Indian Mineral Industries's case (supra), the petitioner cannot be permitted to withhold the amount of contribution payable for the period from 17.9.15 to 31.5.16, moreso when, in the petition involving identical issues, this Court has already vacated the interim order. Needless to say that the issue with regard to the different rates prescribed for the mining lease granted prior to 12.1.15 and post 12.1.15 remains the same in respect of the liability for the period prior to 31.5.16 and thereafter and it is not disputed before this Court that adhering to the provisions of Rules of 2015, post May, 2016, the petitioner is making payment of contribution to the DMF at the rate prescribed. Thus, we do not find any good reason to extend a different treatment to the petitioner qua other mining lease holders, who have deposited the contribution to DMF w.e.f. 17.9.16 pending disposal of the writ petitions. 12. In view of the discussion above, the application preferred by the State for vacating the interim order deserves to be allowed. 13. Accordingly, the application (IA No. 2/19) preferred by the State is allowed. The interim order dated 8.8.16 is vacated. List alongwith connected writ petitions No. 7909/16 & 16835/19.