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2024 DIGILAW 875 (RAJ)

Manohar Lal v. State of Rajasthan

2024-05-30

NUPUR BHATI

body2024
ORDER : (Nupur Bhati, J.) Though the matter has been listed in the 'Fresh' category, at the joint request of both the parties, the matter is heard finally today itself. 2. This writ petition has been filed challenging the communication dated 21.04.2024 (Annex.21) issued by the respondent no. 2 whereby the petitioner was informed that the mining lease of the petitioner was coming to an end from 09.05.2024. The petitioner also prayed that the respondent authorities be restrained from terminating the mining lease on 09.05.2024 and taking any coercive action against the petitioner. The petitioner has also sought directions to the respondent no. 3 to issue EC in favour of the petitioner and also the cost of the writ petition to be allowed in favour of the petitioner. Certain ancillary relief(s) have also been sought by the petitioner. 3. Briefly stated, the facts of this petition are that the petitioner applied for the mining lease of mineral bajri in the 376.5088 hectare area situated in Tehsil Amet, District Rajsamand ) 'mining lease area' in the year 2013 and vide order dated 26.02.2013 (Annex.1), the Joint Secretary to the Government, approved the mining lease for 5 years in favour of the petitioner. Subsequently, the petitioner submitted its application for Environment Clearance ('EC') on 12.11.2013 and the Terms of Reference have been issued to the petitioner on 09.12.2013. 4. In the meanwhile, Hon'ble Apex Court in the case of Chief Secretary, Government of Rajasthan v. National Green Tribunal, Bar Association and Ors. [Civil Appeal No. 9703- 9706 of 2013] directed the 82 applicants in whose favour letter of intent had been issued ('LoI') by the State of Rajasthan to carry on the mining operations till February 2014, vide order dated 25.11.2013. In pursuance of the same, the Mining Department issued an order dated 19.12.2013 in favour of the petitioner, granting temporary work permission for undertaking the mining activity in the mining lease area till 28.02.2014 and subsequent thereto, a temporary work permission contract was executed between the Mining Department and the petitioner on 26.12.2013 (Annex.3). 5. Thereafter the Hon'ble Apex Court further extended the time limit for operating on the mining area for a period one month and directed the 82 lease holders to continue their respective mining operations till 31.03.2014, vide order dated 24.02.2014 (Annex.4). 5. Thereafter the Hon'ble Apex Court further extended the time limit for operating on the mining area for a period one month and directed the 82 lease holders to continue their respective mining operations till 31.03.2014, vide order dated 24.02.2014 (Annex.4). In pursuance of the said order, another temporary work permission contract had been executed between the Mining Department and the petitioner on 28.02.2014 (Annex.5). Furthermore, the Hon'ble Apex Court permitted the 82 lease holders to continue their respective mining operations till further orders, vide order dated 27.03.2014 and 31.03.2014 (Annex.6 and 7) and subsequently another temporary work permission contract was executed between the Mining Department and the petitioner on 31.03.2014 (Annex.8). 6. However, Hon'ble Apex Court vide order dated 16.11.2017 (Annex.9) restrained the mining operations of all the 82 lease holders and subsequently the respondent no. 2 informed the petitioner vide order dated 17.11.2017 (Annex.10) to stop the mining operations with immediate effect. The order dated 16.11.2017 (Annex.9) remained in currency till 2021 and vide order dated 11.11.2021 (Annex.11) passed by the Hon'ble Apex Court in the case of Bajri Lease Holders Welfare Society v. State of Rajasthan and Ors. [Interlocutory Application No.29984 of 2021], accepted the recommendations of Central Empowered Committee ('CEC') and directed the Ministry of Environment and Forests ('MoEF') to issue the EC in respect of valid LoI holders without insisting upon submission of the scientific study report. In the said order, directions were also issued that the river sand mining in Rajasthan is to be permitted after obtaining all the statutory clearances and the period of actual mining of sand under the temporary work permission should be adjusted against the 5 years of lease period. 7. In furtherance of the said directions issued by the Hon'ble Apex Court in the order dated 11.11.2021 (Annex.11), respondent no. 1 vide order dated 28.03.2023 (Annex.12) granted sanction to the petitioner to undertake mining operations during the dies-non period i.e. starting from 17.11.2017 to 25.12.2018 (13 months 9 days) from the date of handing over of the possession and the petitioner had been directed to deposit the amount and execute the mining lease thereafter for a period of 13 months and 9 days. Subsequently, the petitioner deposited a total of Rs. 46,94,300/- including the security, performance security and financial assurance and the mining lease has been issued in favour of the petitioner on 31.03.2023 (Annex.13). 8. Subsequently, the petitioner deposited a total of Rs. 46,94,300/- including the security, performance security and financial assurance and the mining lease has been issued in favour of the petitioner on 31.03.2023 (Annex.13). 8. The petitioner applied for the EC after the order passed by the Mining Department dated 28.03.2023 (Annex.12), and the approval for EC was granted to the petitioner on 28.06.2023 by the Superintending Engineer, Mines and Geology Department, Rajasamand. However, after the amendment, the mineral bajri was included as minor mineral, therefore the petitioner was advised to file a fresh application and the said application for the grant of EC was filed by the petitioner on 09.11.2023 (Annex.18). Subsequently, the respondent state submitted that the application of the EC would be decided in the upcoming meetings, but the same has not been decided yet. 9. Thereafter, vide communication dated 21.02.2024 (Annex.21), the petitioner was informed that the lease period for the mining lease issued in favour of the petitioner is coming to an end on 09.05.2024. In response to this, the petitioner submitted a representation dated 11.03.2024 (Annex.22) to the respondent authorities which has not been decided yet. 10. Thus, aggrieved of the communication dated 21.02.2024 (Annex.21), the petitioner has preferred this writ petition. 11. Learned counsel for the petitioner submits that the respondent authorities have wrongly calculated the dies-non period since the respondent authorities have failed to take into consideration the fact that the order dated 28.03.2023 (Annex.12) specifically mentions that the period of 13 months and 9 days would be counted from the date of handing over of possession which would imply from the date of grant of permission to operate the mining lease to the petitioner. He thus submitted that the respondent authorities have wrongly counted the dies-non period from 31.03.2023, i.e. the date of registration of the mining lease. 12. He thus submitted that the respondent authorities have wrongly counted the dies-non period from 31.03.2023, i.e. the date of registration of the mining lease. 12. Learned counsel for the petitioner also submits that the said act of respondents of counting the dies-non period from the date of execution of the mining lease i.e. 31.03.2023 (Annex.13) is not only violative of the sanction order dated 28.03.2023 (Annex.12) but is also violative of Rule 21(6) of the Rajasthan Minor Mineral Concession Rules, 2017 ('RMMCR'), which prescribes that the currency of lease deed will be from the date of registration unless otherwise provided, and in the instant case, the general rule would not apply since the sanction order dated 28.06.2023 (Annex.12) has a clear stipulation that the said lease is to be granted for a period of 13 months and 9 days. 13. Learned counsel for the petitioner submits that in the sanction order dated 28.03.2023 (Annex.12), it is mentioned that the petitioner will be permitted to undertake the mining activity only after the grant of EC and the said process of grant of EC for the mineral bajri is yet not complete. He thus submits that in the absence of an EC, the petitioner could not have conducted mining activities in its mining lease area and therefore, on account of inaction of the respondents in not granting EC, the petitioner cannot be made to suffer. 14. Learned counsel for the petitioner further submits that the petitioner had deposited a huge amount of Rs. 46,94,300/- in pursuance of the sanction order dated 28.03.2023, for the execution of the mining lease and in the absence of EC, the petitioner has not been able to carry out mining activities for a single day and in such circumstances, the termination of the dies-non period on 09.05.2024 by the respondents is violative of the principles of legitimate expectation. 15. 15. Per contra, learned Additional Advocate General ('AAG') submits that the lease deed was executed in favour of the petitioner on 31.03.2023 (Annex.13) in pursuance to the sanction order dated 28.03.2023 (Annex.12), however, the petitioner had applied for issuance of EC before the authorities on 09.11.2023 (Annex.18) which is, 7 months and 10 days after the execution of the lease deed and thus it is the lethargic attitude of which is responsible for the delay caused in starting the mining activities and the petitioner cannot be exempted from complying with the statutory requirements on account of its own fault. 16. Learned AAG further submits that the petitioner has to mandatorily comply with the Rule 16(3) read with Rule 34(1) of the RMMCR, which stipulates that the lessee shall commence the mining operations only after obtaining the EC and in the present case, till date the EC has not been issued in favour of the petitioner. 17. Learned AAG also submits that the controversy in the present writ petition is squarely covered by the order passed by this Court in the case of Shri. Kuber Associates v. State of Rajasthan and Ors. [SBCWP No. 6330/2024 decided on 17.05.2024] wherein this Court observed that the dies-non period of 13 months and 9 days has to be reckoned from the date of registration of the lease, which has been rightly done by the respondents in the said writ petition and thus in the light of the said writ petition requires no indulgence by this Court in the present writ petition. 18. Heard learned counsel for the parties, perused material available on record and the judgments cited at the Bar. 19. It is observed by this Court that the petitioner has wrongly mentioned the date of the impugned communication as 21.02.2024, however, upon perusal of the communication issued by the respondent no. 2 (Annex.21), it is seen that the date of the impugned communication is 07.02.2024 (Annex.21). 20. This Court finds that the facts of the present writ petition are similar to the case of Shri. Kuber Associates v. State of Rajasthan and Ors. [SBCWP No. 6330/2024 decided on 17.05.2024] decided by this Court, wherein it was held that the respondents in the said writ petition had rightly reckoned the dies non period in accordance with the condition mentioned in the sanction order of the said writ petition. [SBCWP No. 6330/2024 decided on 17.05.2024] decided by this Court, wherein it was held that the respondents in the said writ petition had rightly reckoned the dies non period in accordance with the condition mentioned in the sanction order of the said writ petition. The relevant para of the judgment is reproduced as under: "39.This Court further observes that the contention of the learned counsel for the petitioner that the respondent's action of reckoning the period of lease from the date of agreement is arbitrary, is devoid of merit as such condition was very much present in the sanction order dated 17.10.2022 (Annex.14) and the condition has not been challenged by the petitioner in the writ petition. The petitioner after going through the conditions laid down in the sanction order dated 17.10.2022 (Annex.14) had executed the agreement on 09.03.2023. The relevant condition in the sanction order dated 17.10.2022 (Annex.14) mentioned under the heading 15 , which is reproduced hereunder: It is thus seen that admittedly the possession can be handed over to the lessee once the agreement has been entered and since the said agreement has been executed on 09.03.2024, therefore the commencement of the dies-non period is rightly reckoned from 09.03.2023." In the present case, upon perusal of the condition no. 15 (6) of the sanction order dated 28.03.2023 (Annex.12), it was also categorically specified that the lease holder shall begin the work only after obtaining the EC from the said Ministry, which the petitioner has failed to do in the present case as till date the EC has not been granted in favour of the petitioner. The relevant condition of the sanction order dated 28.03.2023 (Annex.12) in this writ petition is reproduced as under: Moreover, taking into consideration Rule 16(3) of the RMMCR read with Section 34(1) of the RMMCR, the petitioner has failed to fulfill the mandatory obligation for commencing the mining operations and thus, merely because of the delay caused by the petitioner, the dies-non period cannot be extended. Rule 16(3) reads as under: "16. Rule 16(3) reads as under: "16. Grant of mining lease.- (3) If the applicant or successful bidder, as the case may be, complies with the conditions of letter of intent within the stipulated or extended period of time, the mining lease shall be granted by the competent authority with the condition that the lessee shall commence mining operations after obtaining environment clearance: Provided that in the cases where letter of intent has been issued before commencement of the Rajasthan Minor Mineral Concession (Second Amendment) Rules, 2022 with the condition to submit environment clearance, mining lease shall be granted with above condition after deposition of late fees at the rate of ten percent of annual dead rent for delay of every month or part thereof.]" Rule 34(1) of the RMMCR, reads as under: "34. Environmental safeguard.- (1) No mining lease or quarry licence shall be granted without obtaining prior consents, approvals, permits, no objections and the like as may be required under applicable laws for commencement of mining operations." Thus, it is seen that the petitioner had the knowledge of the mandatory requirement of obtaining an EC prior to commencing mining operations, however due to petitioner's own lethargic attitude in dealing with the compliance, the application for EC was filed with delay of 7 months 10 days and thus, the respondents had rightly issued the communication dated 07.02.2024 (Annex.21) after the petitioner had failed to make statutory compliance. 21. Upon examining the said condition along with the mandatory requirement as mentioned in the sanction order dated 28.03.2023 (Annex.12), it is writ large that the lease deed had been executed in favour of the petitioner on 31.03.2023, however due to its own fault, the petitioner filed a fresh application for the grant of EC on 09.11.2023 (Annex.18) after a delay of 7 months and 10 days. It is also seen that as the EC was not granted in favour of the petitioner, the petitioner could not commence the mining activities, and thus in the light of these circumstances, under Proviso to Rule 9(4), the dies-non period cannot be extended beyond the stipulated period of 13 months and 9 days, particularly when on account of the fault of the petitioner, the EC is not granted till date in favour of the petitioner. The relevant rule is reproduced as under: "9. The relevant rule is reproduced as under: "9. Period of mining lease.- (4) Period of lease may be extended equal to the period for which the mines remained closed (dies-non) due to any court order and dead rent for such period shall not be chargeable: Provided that where lease remains closed due to any fault on the part of the lessee or where part of lease was only closed, the period shall not be extended and dead rent shall be chargeable for such period." 22. This Court also finds that the contention of the petitioner that the respondents have acted contrary to the lease deed executed in favour of the petitioner on 31.03.2023 (Annex.13) is devoid of merit, since the lease deed clearly mentions that the dies-non period has to be counted from the date of possession being granted in favour of the petitioner and the dies-non period starts from the date of execution of the lease deed dated 31.03.2023 and thus, the respondents have not committed any mistake while reckoning the dies-non period from 31.03.2023. The relevant part of the lease deed dated 31.03.2023 (Annex.13) reads as follows: "1.Demises: xxxx 3) The lessee/lessees shall hold the premises hereby granted and demised from period of 5 years thence next ensuing.. Also, relying upon Rule 21(6) of the RMMCR, it becomes clear that unless otherwise stated, the currency of lease period shall be considered from the date of registration, which is 31.03.2023 (Annex.13). Rule 21(6) of the RMMCR reads as under: "21. Execution of mining lease.- (6) The currency of lease shall be from the date of registration of the lease deed unless otherwise stated." Nevertheless, the lease deed dated 31.03.2023 also clearly stipulates that by virtue of the condition nos. 2 and 4(13) of the lease deed (Annex.13), executed in favour of the petitioner, the petitioner has been granted the liberty to enter upon the land, sink, drive and make pits, shafts and inclines, to bring machinery and equipment, to use water from the streams and also to carry out mining activities in accordance with the Rules enforced by the Government of India or the State Government from time to time, ascertaining the fact that the petitioner had been given possession of the mining lease area vide the lease deed dated 31.03.2023 (Annex.13). 23. 23. This Court also finds that the contention of the petitioner that the action of respondents is against the doctrine of legitimate expectation is baseless, since the legitimate expectation is a weak and sober right as compared to the rights ordained by a statute and the legitimate expectation being right which is not legal, cannot be enforceable unless the Government or the authorities have acted in an arbitrary or unreasonable manner while formulating such policy/statute as observed by the Hon'ble Apex Court in the case of State of Rajasthan v. Sharwan Kumar Kumawat reported in 2023 SCC Online SC 898. The relevant para of the judgment reads as under: "19. Legitimate expectation is a weak and sober right as ordained by a statute. When the Government decides to introduce fair play by way of auction facilitating all eligible persons to contest on equal terms, certainly one cannot contend that he is entitled for a lease merely on the basis of a pending application. The right being not legal, apart from being non-existent, it can certainly not be enforceable... xxxx 20. Kerala State Beverages (M AND M) Corporation Limited v. P.P. Suresh, (2019) 9 SCC 710 : - xxxx 20. The decision-makers' freedom to change the policy in public interest cannot be fettered by applying the principle of substantive legitimate expectation. [ Findlay, In re, 1985 AC 318 : (1984) 3 WLR 1159 : (1984) 3 All ER 801 (HL)] So long as the Government does not act in an arbitrary or in an unreasonable manner, the change in policy does not call for interference by judicial review on the ground of a legitimate expectation of an individual or a group of individuals being defeated." 24. Thus, upon perusal of the lease date executed in favour of the petitioner dated 31.03.2023 (Annex.13), read with Rule 16(3) and 34(1) of the RMMCR, it becomes clear that the petitioner has failed to comply with the obligation of seeking an EC prior to commencing the mining activities and thus, the petitioner cannot be allowed to take benefit from his own wrong. Also, the respondents have rightly reckoned the dies-non period from the date of execution of the agreement in accordance with the sanction order dated 28.03.2023 as well as the provisions under Rule 21(6) of the RMMCR, since the possession of the lease had been granted in favour of the petitioner by virtue of the said lease dated 31.03.2023. 25. Therefore, no interference is called for by this Court in the communication dated 07.02.2024 (Annex.21) issued by the Mining Engineer, Amet. The writ petition is dismissed. Stay Petition and other misc. application, if any pending, shall also stand disposed of.