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Gujarat High Court · body

2022 DIGILAW 860 (GUJ)

Indulal Chhabildas Vora v. State of Gujarat

2022-07-12

A.S.SUPEHIA

body2022
JUDGMENT : 1. The present writ petition is filed for seeking issuance of writ of mandamus directing the respondents to treat the transfer application made by the petitioner on 15.05.2018 as deemed to have been granted after expiry of 90 days i.e. on 13.08.2018. Further, it is prayed that after such application is deemed to have been granted, the respondents may complete necessary formalities in the matter of transfer of mining lease of petitioner No.1 to petitioner Nos.2 and 3. The petitioners also have challenged communication at 13.05.2021 rejecting the aforesaid transfer application, but the said prayer will not survive since the respondent authority has withdrawn the same. 2. The brief facts of the case are as under: 2.1 A mining order dated 30.11.1981 came to be issued under Section 10 of the Mines and Minerals (Development and Regulation) Act, 1957 (for short "the MMDR Act") in favour of the petitioner No.1 sanctioning the grant of a mining lease of Bauxite, which is a major mineral listed in Part C of the First Schedule of the MMDR act. Thereafter, a mining lease deed dated 19.04.1982 came to be executed in favour of the petitioner No.1 for a period of 20 years. The petitioner No.1, by application dated 15/23.03.2001 had applied for renewal of the lease deed dated 19.04.1982. The petitioner No.1 preferred a transfer application dated 12.10.2009 under Rule 37 of the Mineral Concession Rules, 1960 to the respondent No.3-Collector for transfer of the lease dated 19.04.1982 in favour of petitioner Nos.2 and 3. The petitioner No.1 thereafter, preferred transfer application dated 15.12.2011. A joint affidavit dated 21.01.2012 came to be executed by the petitioner Nos.2 and 3 with regard to transfer of the lease dated 19.04.1982 in their names giving consent to the transfer of mining lease and accepting all the conditions and liabilities, which the petitioner No.1 was having in respect of lease. The said affidavit was in consonance with Sub-rule (1-A) of Rule 37 of the Minerals Concession Rules, 1960. Thereafter, the petitioner Nos.2 and 3 also addressed a similar letter dated 01.02.2012 to the respondent No.3-Collector again requesting to transfer the lease dated 19.04.1982 in their names. 2.2 The petitioner Nos.2 and 3 entered into partnership namely, ICV Enterprise and applied for registration under the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 (for short "the 2005 Prevention Rules"). 2.2 The petitioner Nos.2 and 3 entered into partnership namely, ICV Enterprise and applied for registration under the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 (for short "the 2005 Prevention Rules"). Consequently, the respondent No.4-Geologist issued an order dated 05.07.2012. 2.3 In furtherance of the transfer application dated 15.12.2011, the petitioner No.1 also executed a bank guarantee dated 28.12.2012 in favour of the Regional Controller of Mines, Indian Bureau of Mines, Udaipur for an amount of Rs.2,00,000/- under Rule 23F of the Mineral Conservation of Development Rules, 1998. The respondent No.4, by the letter dated 09.01.2013 requested the petitioner No.1 to clarify as to in whose name the lease dated 19.04.1982 is to be transferred, pursuant to the transfer application dated 15.12.2011, because earlier another application dated 12.10.2009 was also made. Petitioner No.1 replied by the letter dated 22.01.2013 to the Assistant Geologist informing that the lease is to be transferred jointly in the names of the petitioner Nos.2 and 3 and the earlier application dated 12.10.2009 be cancelled. Thereafter, the respondent No.4, by the letter dated 30.01.2013 called upon the petitioner No.1 to submit various documents/information for the purpose of processing the transfer application dated 15.12.2011 and the letter dated 22.01.2013 of petitioner No.1. 2.4 The petitioner Nos.2 and 3 by the letter dated 20.08.2016 requested the respondent No.4 to immediately take appropriate steps with respect to their letter dated 07.01.2015 for transfer of lease. Thereafter, the petitioner No.1, by the letter dated 30.01.2017 requested the respondent No.4 to complete further procedure for transfer of lease. The petitioner Nos.2 and 3 by the letter dated 03.05.2017 addressed to the respondent No.4 referred to the mining order dated 30.11.1981, the lease dated 19.04.1982, the renewal application dated 23.03.2001 etc. The petitioner Nos.2 and 3, once again requested the respondent No.4 to process and grant the transfer application and a copy of the said letter dated 03.05.2017 was also forwarded to the respondent No.2-Commissioner. The office of the respondent No.2, by the letter dated 10.11.2017, requested the respondent No.4 to examine and send an opinion with regard to the transfer application dated 15.12.20211. The petitioner No.1 by the letter dated 22.11.2017, requested the respondent No.4 to issue mining dues clearance certificate as on October, 2017 as there were no outstanding dues towards royalty, dead rent, surface rent, interest etc. The petitioner No.1 by the letter dated 22.11.2017, requested the respondent No.4 to issue mining dues clearance certificate as on October, 2017 as there were no outstanding dues towards royalty, dead rent, surface rent, interest etc. Consequently, the respondent No.4 issued no due certificate dated 20.04.2018 with respect to the mines as on January, 2018. 2.5 In view of the Transfer Rules, 2016, the petitioner No.1 by the letter dated 19.05.2018 submitted to the respondent No.1 as under : (i) transfer application dated 15.05.2018 under sub-rule (1) of Rule 5 of the Transfer Rules, 2016 alongwith a list of the documents. (ii) affidavit dated 19.05.2018 of the petitioner No.1 confirming inter alia that the petitioner No.1 has filed income tax returns till date and all taxes have been paid, that the petitioner No.1 is not involved in any illegal mining, that the transferees have accepted all conditions and liabilities to which the petitioner No.1 is subjected to in respect of the mining lease, etc. (iii) certificated dated 20.04.2018 of the respondent No.4 confirming that there are no mining dues upto January, 2018. (iv) Income Tax return verification form of the petitioner No.2 for AY 217-18. 2.6 Similarly, the petitioner Nos.2 and 3 by their letter dated 24.05.2018 addressed the respondent No.4 stating some of the aforesaid facts, referred the Rule 37 of the Concession Rules, 1960, challan dated 28.12.2011, the mining dues clearance certificate, the approved mining plan and the repeated requests made in the past to process and grant the transfer application. The petitioner Nos.2 and 3 again requested the respondent No.4 to transfer the lease in the name of them. The said letter dated 14.05.2018 also reflects that they do not hold any other lease in the State of Gujarat. Pursuant to the newly introduced Section 8A in the MMDR Act, the respondent No.1 by the order dated 05.06.2018, extended the lease dated 19.04.1982 of the petitioner No.1 upto 18.04.2032. 2.7 The respondent No.4 by the letter dated 24.01.2019 inquired from the petitioner No.1 if the transferees hold any project/plant or not. The petitioner No.1 was directed to submit the said information within a period of 30 days. 2.7 The respondent No.4 by the letter dated 24.01.2019 inquired from the petitioner No.1 if the transferees hold any project/plant or not. The petitioner No.1 was directed to submit the said information within a period of 30 days. In response to the letter dated 24.10.2019, the petitioner No.1 through the petitioner Nos.2 and 3 gave a reply dated 08.02.2019 and stated therein that the petitioner Nos.2 and 3 had a captive plant in their name at GIDC, Ranavav, Dharampur, for which they had obtained registration dated 05.07.2012 under the 2005 Prevention Rules. 2.8 The petitioner Nos.2 and 3 addressed a letter dated 14.08.2019 to the respondent No.4 in the matter of transfer of lease and referred to therein the previous letters i.e. dated 09.01.2013, 30.01.2013, 10.11.2017 and 24.01.2019 of the respondent No.4 as well as the letters/applications of the petitioners including the last reply dated 08.02.2019. The office of the respondent No.2 addressed another letter dated 19.09.2019 to the respondent No.4 referred to therein its earlier letter dated 10.11.2017, letter dated 14.08.2019 of the petitioner Nos.2 and 3 and requested the respondent No.4 to examine and send an opinion with regard to the transfer application within 5 days. The petitioners jointly addressed a letter dated 24.10.2019 to the respondent Nos.1 and 2 stating that the transfer application dated 15.05.2018/19.05.2018 made under the Minerals (Transfer of Mining Lease Granted Otherwise than through Auction for Captive Purpose) Rules, 2016 (for short "the 2016 Transfer Rules") has been pending without any decision upon it, that as per Rule 5(2) of the 2016 Transfer Rules, the State Government is deemed to have approved the transfer if the State Government does not convey its decision for such transfer within a period of 90 days i.e. on 18.08.2018. 3. Learned advocate Mr. A.S. Vakil appearing for the petitioners has submitted that the office of the respondent No.2 addressed a letter/reminder dated 20.07.2020 to the respondent No.4 stating that till date no response has been received from the respondent No.4 with regard to the transfer application dated 15.05.2018 however, despite such transfer application deemed to have been approved under Rule 5(2) of the 2016 Transfer Rules, the respondents have not taken any further steps, as contemplated under the subsequent sub-rule (3) and other sub-rules of Rule 5 of the 2016 Transfer Rules resulting in the non-execution of the transfer deed, its registration etc. He has submitted that the case of the petitioners would be governed under the provision of Section 12A(3) of the MMDR Act and also under paragraph No.2 of the notification dated 02.11.2021 and his transfer application dated 15.05.2018 should have been granted after completion of 90 days i.e. on 18.08.2018. Thus, he has submitted that appropriate orders may be passed. 4. Per contra, learned AGP Mr. Trivedi has submitted that since the respondents have withdrawn the impugned communication dated 13.08.2021, the petitioner is required to file a fresh application under the provision of the Minerals (Other than Atomic and Hydro Carbons Energy Minerals) Concession Rules, 2016 (for short "the Concession Rules"). It is submitted that as and when such application will be received, the same will be processed by the authority in accordance with law. 5. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them. 6. The entire matter hinges only on the issue whether the transfer application dated 15.05.2018 filed by the petitioner No.1 under the provision of the Transfer Rules, 2016, is required to be considered as deemed to have been approved after expiry of 90 days or he has to file a fresh application in view of the notification dated 02.11.2021 issued by the Ministry of Mines. During pendency of the writ petition, the respondents have withdrawn the impugned communication dated 13.08.2021, wherein and whereby the application of the petitioner No.1 for mining lease transfer was rejected. Thus, the only issue, which remains to be examined is with regard to the deemed acceptance of the application dated 15.05.2018. 7. During pendency of the writ petition, the respondents have withdrawn the impugned communication dated 13.08.2021, wherein and whereby the application of the petitioner No.1 for mining lease transfer was rejected. Thus, the only issue, which remains to be examined is with regard to the deemed acceptance of the application dated 15.05.2018. 7. In order to appreciate the controversy vested in the writ petition, it would be apposite to refer to the relevant provisions of law governing the issue under Section 12A of the MMDR Act, more particularly Section 12A(3) thereof, which reads as under : "12A(3) If the State Government does not convey its previous approval for transfer of such mining lease or prospecting licence-cum-mining lease, as the case may be, within a period of ninety days from the date of receiving such notice, it shall be construed that the State Government has no objection to such transfer: Provided that the holder of the original mining lease or prospecting licence-cum-mining lease shall intimate to the State Government the consideration payable by the successor-in-interest for the transfer, including the consideration in respect of the prospecting operations already undertaken and the reports and data generated during the operations." 7.1 A plain and literal meaning of sub-section (3) of Section 12A of the MMDR Act signifies that if the Government does not convey its previous approval for transfer of such mining lease or as the case may be, within a period of 90 days from the date of receiving such notice, it shall be construed that the State Government has no objection to such transfer. 7.2 In the present case, it is not the disputed fact that the State Government has not taken any decision on the application filed by the petitioner No.1 seeking transfer of mining lease. Though the provision of Section 12A(3) of the MMDR Act refers to receiving such notice but nothing was pointed to this Court whether the application for transfer can be regarded to "notice" however, intention of the legislature, while framing the section appears that the request for transfer of mining lease, if not conveyed within a period of 90 days, the same is to be construed that the State Government has no objection to such transfer. Even if it is assumed that the case of the petitioners do not fall under the provision of Section 12A(3) of the MMDR Act, since the petitioner No.1 had not issued "notice", but instead has filed an application seeking of transfer under the Transfer Rules, 2016, then also the respondents cannot deny the deemed approval of such application for the following reasons. 8. It is not disputed that the petitioner No.1 had filed the application seeking transfer under the 2016 Transfer Rules, which are framed vide notification dated 30.05.2016. Rule 5 of which reads as under : "5. Transfer of mining lease.- (1) The holder of a mining lease, granted otherwise than through auction which is being used for captive purpose, may apply to the State Government for transferring the mining lease to any person satisfying the conditions specified in sub-section (1) of section 5 of the Act, in the format given in Schedule I appended to these rules. (2) The State Government shall within a period ninety days of receipt of the application made under sub-rule (1) convey its decision to approve or reject such application for transfer to both the transferor and the transferee: Provided further that in case the State Government decides to reject the application, the State Government shall communicate to both the transferor and the transferee, the reasons for its decision to reject the application for transfer of the mining lease: Provided further that if the State Government does not convey its decision for such transfer within a period of ninety days from the date of receiving an application under sub-rule (1), the State Government shall be deemed to have approved such transfer: Provided also that no such transfer of a mining lease shall be made in contravention of any of the conditions subject to which the mining lease was originally granted." 8.1 The Proviso to sub-rule (2) of Rule 5 of the Transfer Rules, 2016 also is pari materia to the Section 12A(3) of the MMDR Act, except a word "Notice", a word "Application" is incorporated. Thereafter, by the notification dated 02.11.2021 issued by the Ministry of Mines, the 2016 Transfer Rules were rescinded. Thereafter, by the notification dated 02.11.2021 issued by the Ministry of Mines, the 2016 Transfer Rules were rescinded. The said notification is reproduced as under : "G.S.R. 778(E).-In exercise of the powers conferred by section 13 of the Mines and Minerals (Development and Regulation) Act, 1957 (67 of 1957) read with section 21 of the General Clauses Act, 1897 (10 of 1897), the Central Government hereby rescinds the notification of the Government India in the Ministry of Mines number G.S.R. 560(E) dated the 30th May, 2016 relating to the Minerals (Transfer of Mining Lease Granted Otherwise than through Auction for Captive Purpose) Rules, 2016, published in Gazette of India, Part II, section 3, sub-section (I) dated the 30th May, 2016. (2) Notwithstanding such rescission, anything done or any action taken under the Minerals (Transfer of Mining Lease Granted Otherwise than through Auction for Captive Purpose) Rules, 2016, shall be deemed to have been done or taken under the corresponding provisions of the Minerals (Other than Atomic and Hydro Carbons Energy Minerals) Concession Rules, 2016, published in Gazette of India, Part II, Section 3, Sub-section (I) vide number G.S.R. 279(E)." 8.2 Vide notification dated 02.11.2021, it was declared by the Ministry of Mines that the Transfer Rules are rescinded. However, a non obstante clause is inserted in paragraph No.2 of the said notification with a clear understanding that "anything done or any action taken under the 2016 Transfer Rules shall be deemed to have been done or taken under the correspondence provision of Concession Rules." Thus, the application of the petitioner No.1 seeking transfer, which was filed on 15.05.2018 under the provision of 2016 Transfer Rules is saved by paragraph No.2 of the notification and will be governed by the Concession Rules, 2016. 9. The relevant provision of the Concession Rules, 2016 will be Rule 23 of Chapter 8, which will govern the application of the petitioner No.1. The abstract of the same reads as under : "23. 9. The relevant provision of the Concession Rules, 2016 will be Rule 23 of Chapter 8, which will govern the application of the petitioner No.1. The abstract of the same reads as under : "23. Transfer of mining lease or prospecting licence-cum-mining lease granted through auction.- (1) *** *** *** (2) *** *** *** (3) The transferor and the transferee shall, prior to the transfer, jointly submit an application to the State Government in the format specified in Schedule IX, namely the "transfer application", which shall also contain details of the consideration payable by the transferee for the transfer, including the consideration in respect of the prospecting operations already undertaken and the reports and data generated during the operations. (4) The State Government within a period of ninety days from the date of receiving a transfer application made under sub-rule (3) shall convey its decision to approve or reject such transfer for reasons to be recorded in writing: Provided that if the State Government does not convey its decision for such a transfer, within a period of ninety days from the date of receiving such a transfer application, it shall be construed that the State Government has no objection to such transfer: Provided further that no such transfer of a mining lease or of a prospecting licence-cummining lease shall be made in contravention of any condition subject to which the mining lease or the prospecting licence-cum-mining lease was granted." 10. Thus, sub-rule (4) of Rule 24 of the Concession Rules, 2016 is similarly worded to that of Rule 5(2) of the 2016 Transfer Rules. Thus, as per the Proviso attached to sub-rule (4) of Rule 23 of the Concession Rules, 2016, if the State Government does not convey its decision for such transfer application within a period of 90 days from the date of receipt of such transfer application, it shall be construed that the State Government has no objection to such transfer. Thus, as per the Proviso attached to sub-rule (4) of Rule 23 of the Concession Rules, 2016, if the State Government does not convey its decision for such transfer application within a period of 90 days from the date of receipt of such transfer application, it shall be construed that the State Government has no objection to such transfer. Thus, the conjoint reading of provisions of sub section (3) of Section 12A of the MMDR Act, Rule 5(2) of the 2016 Transfer Rules and sub-rule (3) of Rule 23 of the Concession Rules signify that any application made for transfer of lease holder to the State Government, if no decision is conveyed to such lease holder, it shall be construed that the State Government has no objection to such transfer or the application for transfer is deemed to have been approved. 11. Under the circumstances and in light of the aforesaid facts, since no decision was conveyed by the State Government with regard to rejection of the transfer application made by the petitioner on 15.05.2018, the same will deemed to have been approved after completion of 90 days i.e. on 18.08.2018. Hence, the petitioner No.1 is not required to file a fresh application. 12. Thus, the respondent authorities are directed to treat the transfer application dated 15.05.2018 filed by the petitioner No.1 as deemed to have been approved w.e.f. 18.08.2018 (i.e. after expiry of 90 days). After passing the necessary orders in this regard, the respondents are directed to complete all the necessary formalities of the matter of transfer of lease of petitioner No.1 to petitioner Nos.2 and 3. The entire exercise shall be undertaken and final orders in this regard shall be passed within a period of three months from the date of receipt of writ of the order of this Court. 13. The present writ petition stands allowed. Rule made absolute.