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2021 DIGILAW 58 (JHR)

Darshana Stone Works v. State of Jharkhand

2021-01-14

RAJESH SHANKAR

body2021
ORDER : 1. This case is taken up through video conferencing. 2. The present writ petition has been filed for quashing the order dated 20.06.2018 passed by the Deputy Commissioner, Pakur- respondent no.2 in Revision Case no.1 of 2018-19, whereby the petitioner’s application for grant of fresh mining lease of stone over an area of 06 acres of land has been rejected. Further prayer has been made for issuance of direction upon the respondent no.2 to execute the lease deed in favour of the petitioner forthwith. 3. The factual background of the case as stated in the writ petition is that on 25.02.2016, the petitioner had applied for grant of fresh mining lease for a period of 10 years in respect of land appertaining to plot nos.999, 1000, 1002(P), 1003, 1004 & 1005, Khata Nos.88 & 89, measuring an area of 6 acres, situated in Mauza Hathigarh, P.S. Littipara, District Pakur. The letter of intent (L.O.I.) was issued on 22.04.2016 and approval for the said fresh mining lease of stone in favour of the petitioner was also given on 29.11.2016. Vide letter dated 26.12.2016, the petitioner was directed to deposit requisite fee and relevant documents within 15 days for execution of lease deed, which were submitted after the prescribed period of 90 days. The petitioner, thereafter, moved the revisional authority i.e. Court of Mines Commissioner, Ranchi by filing a revision application being Revision Case No.145 of 2017 against the deemed revocation of sanction order dated 29.11.16. The said revision application was disposed of by the revisional authority vide order dated 23.03.2018 remanding the matter to the respondent no.2 to examine the same on merit. The revisional authority observed inter alia that though the petitioner had submitted all the required documents and fees after the prescribed period, the respondent no.2 on being satisfied with the cause of delay might execute lease deed even after expiry of prescribed period, if the delay in execution was found not attributed to the applicant. The revisional authority observed inter alia that though the petitioner had submitted all the required documents and fees after the prescribed period, the respondent no.2 on being satisfied with the cause of delay might execute lease deed even after expiry of prescribed period, if the delay in execution was found not attributed to the applicant. On remand, the respondent no.2 registered Revision Case No.01 of 2018-19 and passed the order dated 20.06.2018, rejecting the petitioner’s application for grant of mining lease of stone on the ground that the mining plan in the existing form involved government and raiyati land, both, and in the light of the prevalent rules, mining lease cannot be granted which otherwise would violate the provisions of Article 14 of the Constitution of India. Hence, the present writ petition. 4. The learned counsel for the petitioner submits that though all the required documents including the statutory clearance had been submitted long back and the respondent no.2 had granted approval for the said mining lease of stone, however, the lease deed could not be executed in view of the interim order of stay dated 19.01.2017 passed by the National Green Tribunal (in short ‘N.G.T.’), Kolkata in the matter of operation of Jharkhand Minor Mineral Concession Rules, 2004 (hereinafter to be referred as ‘the Rules, 2004’) which is evident from the order sheet dated 20.06.2018 passed by the respondent no.2. The revisional court clearly observed that the delay, if any, had not been caused at the instance of the petitioner and as such the matter was remitted back to the respondent no.2 for taking decision in respect of execution of the lease deed. The respondent no.2 arbitrarily rejected the petitioner’s application for grant of mining lease of stone on the ground that since the land over which proposed lease was sought to be granted comprised of raiyati land as well government land, the lease cannot be granted and if the same is done without inviting application(s) by way of open tender from other interested persons, it will amount to violation of Article 14 of the Constitution of India. It is also submitted that the Jharkhand Minor Mineral Concession (Amendment) Rules 2017 (hereinafter to be referred as the ‘Amendment Rules, 2017’) came into existence on 22.02.2017 and the L.O.I. had already been issued in favour of the petitioner prior to it and as such the Amendment Rules, 2017 will not be applicable in the case of the petitioner. Moreover, the Amendment Rules, 2017 is applicable where the proposed mining area is more than 5 hectares, however, in the present case the area of mining lease is less than five hectares. It is further submitted that many persons have been granted mining lease within the State of Jharkhand over the Government land, however, the petitioner has been denied the same. The respondent no.2 had already issued LOI and approved the fresh mining lease of stone to the petitioner, which caused it to invest considerable amount for obtaining environment clearance, mining plan and executing other formalities. The respondent no.2 having been fully satisfied, had passed the order granting approval for mining lease of stone in favour of the petitioner on 29.11.2016 and had directed it to deposit the requisite fees and relevant documents within 15 days as demanded vide letter no.2734/M dated 26.12.2016 for execution of the deed of lease. At this stage, the authorities may be restrained from taking plea that the execution of deed cannot be done. The respondent no.2 may be estopped from denying execution of the mining lease deed in favour of the petitioner. 5. Per contra, the learned counsel appearing on behalf of the respondents submits that the petitioner had applied for mining lease of stone over the said land on 25.02.2016 and the LOI was issued in its favour vide letter No.917/M dated 22.04.2016. The lease was granted in favour of the applicant vide order no.2734/M dated 26.12.2016 based on the documents submitted by him with a direction to submit the lease deed in form 'E' duly typed on non-judicial stamp paper along with other statutory payments such as security deposit and preliminary expenses within 15 days from the date of receipt of the sanctioned order. However, the petitioner did not submit the proforma lease deed for its execution within the time frame. However, the petitioner did not submit the proforma lease deed for its execution within the time frame. The same was, however, submitted along with map and other statutory payments on 13.04.2017 for execution of lease deed, but it could not be executed due to its late submission by the petitioner and in view of interim order of stay passed by the N.G.T., East Zone, Kolkata on 19.01.2017 in O.A. No. 108/15 (Niranjan Sharma Vs. State of Jharkhand & others). It is further submitted that during the period the L.O.I. was issued to the petitioner, there was no such clear provision available in the Rules, 2004, which could prevent from applying and getting stone mining lease over government land. Such provision has now been incorporated in the Amendment Rules, 2017 which has come into force with effect from 02.03.2017. It has been mentioned in Amendment Rules, 2017 that no lease for mining operation shall be granted over government land and the same will only be settled through public auction. 6. Heard the learned counsel for the parties and perused the materials available on record. On perusal of the record, it transpires that the petitioner had applied for grant of mining lease of stone on the land comprising of both raiyati and government land. The LOI was issued in favour of the petitioner on 22.04.2016 and was directed to submit requisite fees and documents within fifteen days for execution of lease deed. It, however, failed to do so. In view of rule 28 of the Rules, 2004, if mining lease has been granted under rule 9(1) or renewal of mining lease has been granted under rule 23 or transfer of the mining lease has been granted under rule 24, then the formal lease deed must be executed within 90 days and in failure of doing so within the said period, the grant/renewal/transfer order shall be deemed to be automatically revoked and the application fee and security deposit shall be forfeited provided, if the Deputy Commissioner is satisfied that the applicant is not responsible for such delay, he may allow execution of the formal deed even after expiry of ninety days. 7. Admittedly, the petitioner had not submitted the lease deed within the prescribed period of ninety days and thus in view of rule 28 the lease deed got automatically revoked on 25.03.2017. 7. Admittedly, the petitioner had not submitted the lease deed within the prescribed period of ninety days and thus in view of rule 28 the lease deed got automatically revoked on 25.03.2017. The petitioner filed all the required documents and fee on 13.04.2017 i.e. after expiry of statutory period of 90 days. In the meantime, some provisions of Rules, 2004 got amended by the Amendment Rules, 2017. Thereafter, the respondent no.2 did not take step for execution of mining lease deed in favour of the petitioner and as such the petitioner filed Revision Case No.145 of 2017 before the Mines Commissioner, Ranchi, who vide order dated 23.03.2018 observed that though there was delay in filing the requisite fees and other relevant documents to execute the lease deed by the petitioner, the proviso of rule 28(1) of Rules, 2004 empowers the respondent no.2 to condone the delay and thereby remanded the matter back to the respondent no.2 to examine the same on merit and to pass a speaking order as per rules. 8. The respondent no.2 after remand found that the draft of the proposed mining plan was cunningly prepared by including government land with raiyati land and the mining lease over public land could not be granted in terms with the Amendment Rules, 2017, which would otherwise also be in violation of Article 14 of the Constitution of India. 9. In view of Rule 9(1)(Ka) as incorporated by the Amendment Rules, 2017, mining lease of minor mineral existing on raiyati land having an area of less than 5 hectares shall be granted by the concerned Deputy Commissioner, whereas mining lease of minor mineral exiting on raiyati land having an area of more than five hectares as well as mining lease of sand, granite, marble, sand stone and garnished stone shall be granted through electronic auction by the Director of Mines under the provisions of Jharkhand Minor Mineral (Auction) Rules, which will be defined and circulated separately provided that the State Government, as per need, may also authorize the Deputy Commissioner for auction of the same. 10. Thereafter, Jharkhand Minor Mineral (Auction) Rules, 2017 (in short Auction Rules, 2017) was framed and the same was notified on 16.08.2017. 10. Thereafter, Jharkhand Minor Mineral (Auction) Rules, 2017 (in short Auction Rules, 2017) was framed and the same was notified on 16.08.2017. In view of rule 3 of the Auction Rules, 2017, the provision of these rules shall apply to all minor minerals except Soil, Brick Earth, Morrum, Red Soil, clay for making Raniganj tiles and Stone (Boulder, Bajri, Single, Stone Brick, Stone Dust) over an area of less than five hectares of Raiyati land (private land). The said rule also provides that where mineral contents of an area has been established and demarcated by the Director Geology, mining lease shall be granted in the matter specified under the provisions of Rules, 2004 as amended from time to time. Thereafter, the Director Mines/Deputy Commissioner may initiate an auction process for grant of a mining lease with respect to an area within the District if the mineral content in such area has been established by Director, Geology. The Director, Mines/Deputy Commissioner prior to issuance of the notice inviting tender with respect to mineral auction shall identify and demarcate the area where a mining lease is proposed to be granted through auction and the area so demarcated shall be classified into forest land, land owned by the State Government and land not owned by the State Government. 11. Thus, on the conjoint reading of the provisions of the Amendment Rules, 2017 as well as the Auction Rules, 2017, it would be clear that the mining lease over raiyati land of more than 5 hectares and/or any government land is to be granted only after inviting public auction and the grant of mining lease for such lands without inviting public auction has been strictly prohibited. 12. The thrust of the argument of the learned counsel for the petitioner is that the LOI for grant of mining lease was already issued before coming into force of the Amendment Rules, 2017 and as such any of the provisions of the said Rules has no application in the case of the petitioner. It has also been contended that the lease deed was not executed due to the interim order of stay passed by the NGT, Kolkata and as such the Deputy Commissioner was required to condone the delay in execution of the lease deed. 13. I do not find substance in the argument of the learned counsel for the petitioner. It has also been contended that the lease deed was not executed due to the interim order of stay passed by the NGT, Kolkata and as such the Deputy Commissioner was required to condone the delay in execution of the lease deed. 13. I do not find substance in the argument of the learned counsel for the petitioner. Since the petitioner was directed to submit the relevant documents and requisite fees for execution of the lease deed within a period of fifteen days, the petitioner failed to do so within the said period as it also did not file the same within the statutory period of ninety days for execution of the lease deed. Accordingly, in view of rule 28, the lease deed got automatically revoked on 25.03.2017. Though the Deputy Commissioner was empowered to condone the delay in execution of lease deed if he was of the opinion that the delay in execution was not attributed to the petitioner, the said power to condone the delay for execution of mining lease could not be exercised by the Deputy Commissioner due to the reason that the proposed area comprised of both raiyati and Government land. 14. Further argument of the learned counsel for the petitioner is that after remand of the matter, the Deputy Commissioner did not comply the direction/observation of the revisional authority and went beyond his jurisdiction while rejecting the petitioner’s application. Though the revisional authority had remanded the matter to the Deputy Commissioner, observing that the authority might execute a lease deed even after expiry of prescribed period if the delay was not attributed to the petitioner and the Deputy Commissioner was directed to examine the case of the petitioner on merit. The revisional authority, however, did not deal with the legal aspects, which would be applicable while granting mining lease of stone to the petitioner. Since the concerned land comprised of both government and raiyati land, the lease could not have been granted through private negotiation in view of the provisions of the Amendment Rules, 2017 read with Auction Rules, 2017. The revisional authority, however, did not deal with the legal aspects, which would be applicable while granting mining lease of stone to the petitioner. Since the concerned land comprised of both government and raiyati land, the lease could not have been granted through private negotiation in view of the provisions of the Amendment Rules, 2017 read with Auction Rules, 2017. Since the Deputy Commissioner was directed by the revisional authority to examine the matter on merit, the Deputy Commissioner rejected the petitioner’s application for grant of mining lease after considering the provisions of Amendment Rules, 2017 on the ground that the proposed mining lease area comprised of both raiyati and government land and hence lease cannot be granted through private negotiation which otherwise would violate the right of equality of interested persons guaranteed under Article 14 of the Constitution of India. The Deputy Commissioner further observed that the petitioner while applying for grant of mining lease of stone cunningly prepared the proposed mining plan by including government land with raiyati land. 15. In view of the aforesaid facts and circumstances, I find no infirmity in the impugned order passed by the Deputy Commissioner. The petitioner had failed to submit the relevant documents with the requisite fee for execution of the lease deed within the statutory period of 90 days and it cannot take benefit of the fact that the execution of mining lease was stayed by the NGT, Kolkata for certain period. Had the petitioner performed its part for execution of mining lease, it could have taken the benefit of the fact of stay granted by the NGT, Kolkata for some period. One cannot be granted relief under equitable writ jurisdiction who himself was not vigilant of his rights. 16. The writ petition being devoid of merit is, accordingly, dismissed.