Quashed

Ms Mineral and Minerals Ltd. through Its Agent of Mines Sri Bijesh Kumar Jha v. State of Jharkhand and Anr.

Jharkhand HC16 Aug 2019WPC/7401/2012

Case brief

AI extract

What is this about?

The High Court held that orders reducing mining lease periods from twenty to five years without prior notice violated principles of natural justice. The orders were quashed and remanded.

What did the court decide?

Impugned orders dated 06.10.2012 in various P.M. cases are quashed, matter remanded to respondent for fresh order after hearing.

Ms Mineral and Minerals Ltd. through Its… — Mining and Natural Resources | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No. 7401 of 2012 With W.P.(C) No. 7416 of 2012 With W.P.(C) No. 7417 of 2012 With W.P.(C) No. 7424 of 2012 With W.P.(C) No. 7448 of 2012 With W.P.(C) No. 7449 of 2012 With W.P.(C) No. 7450 of 2012 With W.P.(C) No. 7453 of 2012 With W.P.(C) No. 7455 of 2012 With W.P.(C) No. 7459 of 2012 ---

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M/s. Mineral and Minerals Ltd. through its Agent of Mines Sri Bijesh Kumar Jha S/o Sri Shobha Nath Jha resident of Hindalco Complex, Court Road, Lohardaga, PO & PS – Lohardaga, District Lohardaga, Jharkhand … … Petitioner (In W.P.(C) Nos. 7401, 7416, 7453, 7459 of 2012)

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Hindalco Industries Ltd. through its Vice President Sri Bijesh Kumar Jha S/o Sri Shobha Nath Jha resident of Hindalco Complex, Court Road, Lohardaga, PO & PS – Lohardaga, District Lohardaga, Jharkhand … … Petitioner (In W.P.(C) Nos. 7417, 7424, 7448, 7449, 7450, 7455 of 2012) Versus

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State of Jharkhand 2. Dy. Commissioner, Lohardaga, PO, PS & District - Lohardaga … … Respondents (In all the cases)

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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --For the Petitioners : Mr. Indrajit Sinha, Advocate For the Respondents : Mr. Atanu Banerjee, Sr. S. C. – III : Mr. Manoj Kumar – 3, S.C. (Mines) – II : Mr. Sanjeev Thakur, S. C. (L & C) - I ---

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08/16.08.2019 Heard Mr. Indrajit Sinha, learned counsel for the petitioners in all the cases and the State which is being represented by Mr. Atanu Banerjee, learned Sr. S. C. – III, Mr. Manoj Kumar No. 3, learned S.C. (Mines) – II and Mr. Sanjeev Thakur, learned S.C. (L & C) – I.

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2. Since the factual and legal aspect in all the cases are same and similar as such they are being disposed of by this common order.

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3. In all the writ applications the petitioners are aggrieved by the separate orders passed by the respondent no. 2 dated 06.10.2012 by which the earlier orders have been reviewed suo moto and the period of mining lease has been reduced from twenty years to five years.

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4. In W.P.(C) No. 7401 of 2012 it has been stated in the writ petition that the petitioner is engaged in the business of mining of Bauxite having mining lease in the district of Lohardaga and other districts within the State of Jharkhand. For the purpose of mining activities in terms of the Mineral Concession Rules, 1960 consent of the raiyats has to be taken for acquiring the surface rights as per the Mines and Minerals Development and Regulation Act, 1957. The occupancy raiyat Lohar Kissan had given consent in favour of the petitioner for using the lands situated in Plot Nos. 771, 750, 705, 706, 852(p) Khata No. 240, 241, Thana No. 104 of Mouza – Pakhar having an area of 6.60 acres for mining purpose. Since Lohar Kissan is a member of the Scheduled Tribe an application was preferred by him before the respondent no. 2 in term of Section 49 of the Chhotanagpur Tenancy Act (hereinafter referred to as C.N.T. Act for the sake of brevity) for transferring the occupancy holding in favour of the petitioner. The said application was registered as P. M. Case No. 29/2010-11 and after hearing the parties concerned including the petitioner vide order dated 29.11.2011 permission was granted for transfer of the land on lease for a period of twenty years in favour of the petitioner. Compensation amount in terms of the conditions enumerated was also paid to the raiyat. Subsequently, a lease deed was executed between the petitioner and the raiyat for carrying on mining activities and the same was operational for a period of twenty years. However, vide communication dated 06.10.2012 the respondent no. 2 had reviewed the earlier order for grant of lease and the period of lease was modified/reviewed and was approved for five years only in place of twenty years.

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5. In W.P.(C) No. 7416 of 2012 Pusa Nagesia had given consent in favour of the petitioner for carrying on mining activities over the Plot Nos. 758, 757 Khata No. 214, 215, Thana No. 104 of Mouza – Pakhar having an area of 9.21 acres. The said Pusa Nagesia had applied before the respondent no. 2 in terms of Section 49 of the C.N.T. Act for transferring the occupancy holding in favour of the petitioner by way of lease which was registered as P.M. Case No. 27/2010-11. Vide order dated 26.11.2011 permission was granted by the respondent no. 2 for transfer of the land on lease for a period of twenty years in favour of the petitioner and consequent to the same a lease deed was executed by and between the petitioner and the raiyat Pusa Nagasia for a period of twenty years. It has been stated in the writ petition that the compensation amount had already been paid to the raiyat. The petitioner in this writ application is also aggrieved with the order dated 06.10.2012 passed in P. M. Case No. 27/2010-11 by which the period of lease has been modified and reduced from twenty years to five years.

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In this case a counter affidavit has been filed on behalf of the respondents in which the order dated 06.10.2012 has been sought to be defended by stating that the respondent no. 2 has wide powers to protect the interest of the Tribals and, therefore, it was within his jurisdiction to review the order dated 29.11.2011. It has also been stated that out of total area of 17.32 acres the lease deed was with respect to 9.21 acres and, therefore, remaining area of 8.11 acres is too less for the livelihood of the raiyat.

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6. In W.P.(C) No. 7417 of 2012 it has been stated in the writ petition that the petitioner is largest producer of Aluminum and Aluminum products in India. It is engaged in the business of mining of Bauxite having mining lease in the district of Lohardaga and other districts within the State of Jharkhand. An area of 2.11 acres in Plot No. 716(p), 852 (p), 861 (p), 716 (p), Khata No. 241, Thana No. 104 of Mouza Pakhar belongs to the raiyat Lohar Kissan. The said Lohar Kissan being the member of Scheduled Tribe had applied before the respondent no. 2 in terms of Section 49 of the C.N.T. Act for transferring the occupancy

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holding in favour of the petitioner by way of lease which was registered as P. M. Case No. 19/2010-11 and vide order dated 29.11.2011 permission was granted for transfer of the land on lease for a period of twenty years in favour of the petitioner. The compensation amount had also been paid to the raiyat. Subsequently, a lease deed was executed by and between the petitioner and the raiyat for a period of twenty years. The petitioner had started its mining activities after execution of the lease when suddenly the impugned order dated 06.10.2012 was passed in P. M. Case No. 19/2010-2011 by which the period of lease had been reduced to five years from twenty years.

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No counter affidavit has been filed by the respondents in the present case.

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7. In W.P.(C) No. 7424 of 2012 one Hulash Nageshia was the raiyat in Plot No. 2060 (p), Khata No. 146, Thana No. 104 of Mouza Pakhar having an area of 2.58 acres. Since consent was given to the petitioner by Hulash Nageshia for carrying on mining activities permission was sought for from the respondent no. 2 in terms of Section 49 of the C.N.T. Act for transferring the occupancy holding in favour of the petitioner.

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The same was allowed vide order dated 22.01.2011 and permission was granted for transfer of the land on lease for a period of twenty years in favour of the petitioner. The compensation amount was paid to the raiyat and since all the conditions pertaining to the lease were fulfilled by the petitioner a lease deed was executed by and between the raiyat and the petitioner for carrying out mining activities for a period of twenty years. In P. M. Case No. 15/2010-2011 the order dated 22.01.2011 granting permission was reviewed and the period of lease was reduced from twenty years to five years. A counter affidavit has been filed in the present writ application wherein it has been stated that since the raiyat was left with only 6.06 acres of land which was not sufficient for his livelihood the order was reviewed.

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8. In W.P.(C) No. 7448 of 2012 an application was made for permission by the occupancy raiyat Kishun Nageshia for transfer of the occupancy holding in favour of the petitioner relating to 5.83 acres

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which comes within the Plot Nos. 858, 859, 866, 868 Khata No. 79 Thana No. 104 of Mouza – Pakhar. The permission which was sought for by Kishun Nageshia was allowed vide order dated 27.01.2011 for entering into a lease for a period of twenty years in favour of the petitioner in P. M. Case No. 14/2010-2011. It has further been stated that compensation has already been paid to the raiyat and on completion of all the requisite formalities a lease deed was executed for a period of twenty years. The petitioner is aggrieved by the order of review dated 06.10.2012 passed in P. M. Case No. 14/2010-2011 by which period of lease has been reduced from twenty years to five years.

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No counter affidavit has been filed in the present writ application.

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9 . In W.P.(C) No. 7449 of 2012 the lease deed which was entered into between the petitioner and the occupancy raiyat Chamra Asur was pursuant to the order dated 29.11.2011 passed by the respondent no. 2 by which the permission was granted in terms of Section 49 of the C.N.T. Act in connection with 1.62 acres of land belonging to Chamra Asur situated in Plot No. 1245, Khata No. 65, Thana No. 64 Mouza – Tuimu. The petitioner claims that apart from compensation the other conditions were fulfilled and thereafter the lease deed was executed. However, vide order dated 06.10.2012 in P. M. Case No. 18/2011-2012 the period of lease granted to the petitioner was modified and reduced from twenty years to five years.

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No counter affidavit has been filed by the respondents.

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10. In W.P.(C). 7450 of 2012 the occupancy raiyat Bigan Nageshia had given consent to the petitioner for using his land comprising an area of 18.59 acres in Plot No. 719, 720, 722, 854, 855, 856, 857, Khata No. 154, Thana No. 104 of Mauza Pakhar for carrying on mining activities. Accordingly the said Bigan Nageshia had applied for permission in terms of Section 49 of the C.N.T. Act for transferring the occupancy holding in favour of the petitioner by way of lease and the said case being registered as P. M. Case No. 11/2010-11 ultimately resulted in the order dated 22.01.2011 by which the permission was

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granted for transfer of the land on lease for a period of twenty years in favour of the petitioner. The petitioner has stated that necessary compensation was paid to the raiyat and all the requisite formalities were completed and thereafter a lease deed was executed by and between the raiyat Bigan Nageshia and the petitioner. The impugned order in the present writ application is also dated 06.10.2012 passed in P. M. Case No. 11/2010-11 by which the period of lease has been reduced from twenty years to five years.

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In this writ application a counter affidavit has been filed in which it has been stated that the raiyat had a left over area of 10.69 acres which was not sufficient for his livelihood and the respondent no. 2 being the custodian of the welfare of the tribals had reviewed the earlier order and had reduced the period of lease to five years.

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11. In W.P.(C) No. 7453 of 2012 the occupancy raiyat was Gobardhan Nagesia who had applied for permission before the respondent no. 2 in terms of Section 49 of the C.N.T. Act for transferring the occupancy holding in favour of the petitioner by way of lease of an area of 0.65 acres in Plot No. 849 (p), Khata No. 145 Thana No. 104 of Mauza – Pakhar. Vide order dated 22.01.2011 permission was granted by the respondent no. 2 to the raiyat for transfer of the land on lease for a period of twenty years in favour of the petitioner. It has been stated that the compensation amount has been paid to the raiyat and necessary formalities has also been completed and on such completion a lease deed was executed by and between the petitioner and the raiyat for a period of twenty years. In P. M. Case No. 17/2010-2011 the respondent no. 2 had suo moto reviewed his earlier order dated 22.01.2011 and had reduced the period of lease from twenty years to five years. 12. In W.P.(C). No. 7455 of 2012 Bandhnu Oraon who was having 11.82 acres in Plot No. 578 Khata No. 74 Thana No. 64 of Mauza Tuimu had applied for permission in terms of Section 49 of the C.N.T. Act for transferring the occupancy holding in favour of the petitioner. The respondent no. 2 had granted permission vide order dated 26.11.2011 in P. M. Case No. 19/2011-2012. It has been stated that compensation

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has been paid to the raiyat and the other requisite formalities were completed which ultimately led to execution of a lease deed by and between the petitioner and the raiyat Bandhnu Oraon for a period of twenty years. However, vide order dated 06.10.2012 the period of lease was reduced from twenty years to five years with which the petitioner is aggrieved.

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No counter affidavit has been filed in this case.

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13 . In W.P.(C) No. 7459 of 2012 the permission was granted by the respondent no. 2 in P. M. Case No. 16/2010-2011 to Bigan Negesia occupancy raiyat for transferring an area of 3.08 acres of land situated in Plot No. 703, 704, Khat No. 152, 153, Thana No. 104 of Mauza Pakhar in favour of the petitioner for carrying out mining activities. It has been stated that compensation has been paid and the other necessary formalities has been completed by the petitioner. The petitioner is aggrieved by the order dated 06.10.2012 passed by the respondent no. 2 in P. M. Case No. 16/2010-2011 by which the period of lease had been reduced from twenty years to five years.

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A counter affidavit has been filed by the respondent in which it has been stated that considering the status of the land holder and considering the value the order has been reviewed.

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14. After giving a factual details of each of the writ applications this Court now proceeds to record the argument advanced by the respective parties as well as the finding on such consideration. 15. It has been stated by Mr. Indrajit Sinha, learned counsel for the petitioner that the impugned orders could not have been passed by the respondent no. 2 when the lease deed was already executed and registered. It has further been stated that the respondent no. 2 does not have the power of review in terms of Section 49 of the C.N.T. Act. Learned counsel submits that the impugned order dated 06.10.2012 passed in each of the cases are in violation of the principles of natural justice as opportunity of hearing was not given to the petitioners before reducing the period of lease from twenty years to five years.

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16. The learned State counsels who had appeared in the writ applications have basically stated that in terms of Section 49 (5) of the

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C.N.T. Act the respondent no. 2 does have the power of review. It has also been stated that even if assuming that the orders dated 06.10.2012 is bad the period of five years having already come to an end the prayer made in this writ applications have become redundant.

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17. At this, Mr. Indrajit Sinha, leaned counsel for the petitioner submits that the petitioners are still continuing with their mining activities in the lease hold areas.

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18. Perusal of the impugned orders reveal that save and except the case number all the orders are basically the same. They all are cryptic, unreasoned and above all having been passed in violation of principles of natural justice. It is an admitted fact that before entering into a lease agreement permission was accorded by the respondent no. 2 in terms of Section 49 of the C.N.T. Act. Post such lease agreement the petitioners had started its mining operations and as has been stated by Mr. Indrajit Sinha, learned counsel for the petitioners the mining operations are still being continued unhindered. Therefore, the contention of the learned State Counsels that the period of five years having expired and on such score the writ applications have lost force cannot be accepted.

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19. In the case of Canara Bank and Others v. Debasis Das and Others reported in (2003) 4 SCC 557 the essentialities of the principles of natural justice have been laid down and the same reads as under:

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15. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the “Magna Carta”. The classic exposition of Sir Edward Coke of natural justice requires to “vocate, interrogate and adjudicate”. In the celebrated case of Cooper v. Wandsworth Board of Works the principle was thus stated: (ER p. 420)

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“[E]ven God himself did not pass sentence upon Adam before he was called upon to make his defence. ‘Adam’ (says God), ‘where art thou? Hast thou not eaten of the tree whereof, I commanded thee that thou shouldest not eat?’ ”

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Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.

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20. The impugned orders dated 06.10.2012 does not leave even a shadow of doubt that the petitioners have not been given an opportunity of hearing and this fact has not been specifically denied by the respondents. The respondent no. 2 had passed an order adverse to the cause of the petitioner and, therefore, it was all the more incumbent upon the respondent no. 2 to have given an opportunity of hearing to the petitioner. The petitioners have been condemned unheard. Since this Court has come to a conclusion that the principles of natural justice have been blatantly violated by the respondent no. 2 the other legal issues which has been raised by the learned counsels for the respective parties have not been gone into as the said issues can very well be advanced before the respondent no. 2.

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21. In view of the findings recorded above, the impugned orders dated 06.10.2012 passed in P. M. Case No. 29/2010-11, P.M. Case No. 27/2010-11, P. M. Case No. 19/2010-11, P. M. Case No. 15/2010-11, P.M. Case No. 14/2010-11, P. M. Case No. 18/2011-12, P. M. Case No. 11/2010-11, P. M. Case No. 17/2010-11, P. M. Case No. 19/2011-12 and P. M. Case No. 16/2010-11 are quashed and set aside and the matter is remanded back to the respondent no. 2 to pass a fresh order after giving ample opportunity of hearing to the petitioners.

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These writ applications are disposed of.

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(Rongon Mukhopadhyay, J.)

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Umesh/-

Ms Mineral and Minerals Ltd. through Its Agent of Mines Sri Bijesh Kumar Jha v. State of Jharkhand and Anr.

Case brief

What is this about?

What did the court decide?

Ms Mineral and Minerals Ltd. through Its Agent of Mines Sri Bijesh Kumar Jha v. State of Jharkhand and Anr.

Case brief

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What did the court decide?

What the court decided

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