Dismissed

Smt. Nandita Tiwari v. State of Uttarakhand through Secretary

Uttarakhand HC14 Dec 2023WPMS/666/2017

Case brief

AI extract

What is this about?

The Reserve High Court of Uttarakhand dismissed a writ petition challenging the reduction of a mining lease area. The Court held that upon the reclassification of soapstone as a minor mineral, the new State Rules applied, allowing area reduction with recorded reasons. The Court also ruled that Section 10A rendered the pending renewal application ineligible.

What did the court decide?

The writ petition was dismissed with costs.

Smt. Nandita Tiwari Vs State of… — Contract and Commercial Disputes | Uttarakhand HC (2023)

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RESERVE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition (M/S) No. 666 of 2017

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Smt. Nandita Tiwari ...Petitioner

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Versus

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State of Uttarakhand and others ...Respondents

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Present:-

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Mr. Sanjay Bhatt, Advocate for the petitioner. Mr. Anil Dabral, Additional C.S.C. with Mr. V.D. Bisen, Standing Counsel for the State. Mr. B.D. Pande, Advocate for the respondent no.4.

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JUDGMENT

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Per: Hon’ble Ravindra Maithani, J.

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INTRODUCTION

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A mining lease was granted to the husband of the petitioner, on 21.08.1976. It was renewed on multiple occasions. Last time, it was extended for ten years till 15.05.2002. The husband of the petitioner died in the year 2000. The petitioner moved an application on 07.06.2001 for further renewal of the lease. Meanwhile, certain villagers raised objections with regard to 14.328 hectares land of the lease area. By impugned Office Memorandum dated 27.02.2017, the respondent no.1 recommended for renewal of the lease except 14.328 land of the lease area, on which objections were raised by the villagers of the village Pangchaura. This order dated 27.02.2017 has been challenged in this petition on the ground that this order

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wrongfully curtails the lease area. Subsequent to it, recommendation was made on 06.08.2001 for grant of lease in favour of the private respondents that has also been challenged by the petitioner. The petitioner has also sought other reliefs in the petition.

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FACTS

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Facts necessary to appreciate the controversy, briefly stated, are as follows:-

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(i) On 21.08.1976, a mining lease having an area 49.70 hectares i.e. 123 acres within village Tharp Tehsil Kanda, District Bageshwar was granted to the husband of the petitioner for five years.

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(ii) The lease was further extended for ten years w.e.f. 14.05.1982 to 15.05.1992.

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(iii) The lease was further extended for a period of ten years till 15.05.2002.

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(iv) The husband of the petitioner, who happened to be original lessee died in the year 2000, when the lease deed was in existence.

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(v) The petitioner moved an application on 07.06.2001 for renewal of the lease, but it was not renewed.

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(vi) It appears that the villagers of Village Pangchaura, raised objections for mining of the land of which they are owners. Therefore, the State Government by its order dated 23.05.2006, recommended renewal of lease, except the land on which the villagers of Village Pangchaura Loharkhet had raised objections.

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(vii) The petitioner did challenge order dated 23.05.2006 of the State Government before the Revisional Authority (Central Government) under the Mines and Minerals (Development and Regulation) Act, 1957 (“1957 Act”), which was decided on 15.09.2010. The revisional authority remanded the matter for passing orders under law within six months from the date of order of the revisional authority.

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(viii) It appears that the State Government did not decide the matter, as directed by the revisional authority, therefore, the petitioner filed a Writ Petition (M/S) No. 1321 of 2012, Smt. Nandita Tiwari Vs. State before this Court, which was decided on 28.06.2002 (“the petition”). This Court directed that the matter may be considered within four weeks since then.

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(ix) On 23.01.2013, the State Government permitted the mining operation under Rule 24 (A) 6 of the Mineral Concession Rules, 1960 (“1960 Rules”) till the decision is taken on the application of the petitioner for renewal of the lease.

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(x) By the impugned office memorandum dated 27.02.2017, the State Government approved the proposal to renew the lease except the land falling within village Pangchaura.

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(xi) On 15.05.2008, the State of Uttarakhand renewed the lease for 35.372 hectares land under the Uttarakhand Minor and Minerals Policy, 2015 (“2015 Policy”).

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(xii) 14.328 hectares land falling within Village Pangchaura was not renewed for mining.

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(xiii) A proposal was sent by the respondent no.3

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Director, Mining Directorate of Industries, State of Uttarakhand, Dehradun for grant of lease to the private respondent of the land falling within Village Pangchaura. It appears that it includes some of the land which had earlier been sanctioned for the petitioner for mining and for which the lease was not renewed for the petitioner.

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(xiv) The office memorandum dated 27.02.2017 of the respondent no.1, the State Government and recommendation dated 06.08.2021 of the respondent no.3 are sought to be quashed. Other related reliefs are also sought by the petitioner.

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It is the case of the petitioner that the area of mining cannot be reduced under 1960 Rules. 1960 Rules does not mandate consent of owners for renewal of the lease. The denial of renewal of lease is in violation of the Fundamental Right of the petitioner. The petitioner has been carrying out the mining operation for almost 40 years.

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The State Government has filed its counter affidavit. According to the State Government, initially, the lease was given for mining of soapstone. It was then mineral, but by a notification of the Government of India dated 10.02.2015, now soapstone is defined under the category of minor minerals. Therefore, according to the State Government in the present case, the provisions of 1960 Rules will not come into play, instead the provisions of the Uttarakhand Minor Minerals Concession Rules, 2001 (“2001 Rules”) will be applicable and according to

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Rule 8 (1) (b) of the 2001 Rules, renewal may be denied or mining area may be reduced. It is argued that in accordance with 2001 Rules, the lease area has been reduced.

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The respondent no.2 has separately filed the counter affidavit. But, it is in line to the counter affidavit filed by the respondent no.1.

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The respondent no.4 is the private respondent in whose favour, land falling in Village Pangchaura has been recommended for mining lease. It includes the land which had earlier been within the mining area of the petitioner.

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According to the respondent no.4, the land owners of the Village Pangchaura has objected in grant of lease to the petitioner in respect of their land. Therefore, lease of that area could not have been granted in favour of the petitioner. It is categorical case of the respondent no.4 that the villagers of the Village Pangchaura did not give no objection in favour of the petitioner. Therefore, their land is excluded for mining operation being done by the petitioner.

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extensively.

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Heard learned counsel for the parties and

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perused the record.

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ARGUMENTS

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Learned counsel for the petitioner would submit that the lease was initially granted to the husband of the petitioner in the year 1976 and after the death of her husband in the year 2000, the petitioner did apply for renewal of the lease on 07.06.2001 at that time soapstone was mineral. Therefore, in this case the 1960 Rules would be applicable. It is argued that for renewal of lease, Rule 22 (3) (h) of the 1960 Rules would come into play, which does not envisage any consent of the owners for renewal of the lease. Therefore, it is argued that the lease area of the petitioner could not have been reduced on the ground that the owners did not consent for it. Learned counsel would raise the following points in his submission:-

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(i) The petitioner had already filed application for renewal of the lease on 07.06.2001, which was not decided for a long. Therefore, in view of Rule 24 A, sub Rule (6) of the 1960 Rules, it shall be deemed that the lease has been extended for a further period of two years or till the State

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Government passes order there on or whichever is earlier.

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(ii) The 2015 Policy provides that the lease

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issued prior to the enforcement of 2015 Policy, shall be extended for another period of 50 years.

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(iii) Even 2001 Rules does not contemplate any consent of land owners for renewal of the lease.

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On the other hand, learned counsel for the private respondent would submit that the Central Government has classified the soapstone as minor mineral w.e.f. 10.02.2015. Therefore, in the instant case, 2001 Rules shall come into operation. He would also raise the following points in his submissions:-

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(i) Rule 8 of the 2001 Rules, provides that the area of mining may be reduced by assigning reasons. It is argued that in the instant case, such reasons have been assigned.

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(ii) On Section 22 (3) (h) of the 1960 Rules, it

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is argued that even if, initially, the owners

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had given consent for renewal, further consent would be required. Learned

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counsel would submit that further consent would not be necessary, if after initial consent having been given, the owner had further given consent for renewal of lease during its subsistence.

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(iii) Renewal application dated 07.06.2001 filed by the petitioner had become ineligible, in view of Section 10A of the 1957 Act.

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(iv) In the instant case, the provisions of Rule 24 A (6) of the 1960 Rules, does not come into operation because for the application of this Rule, an application for renewal has to be filed 12 months prior to the expiry of the lease. It is argued that in the instant case, the application was not filed 12 months prior to the expiry of the lease.

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Replying to the arguments made by the learned counsel for the private respondent, learned counsel for the petitioner would submit that Section 10 A of the 1957 Act, would be applicable only in the cases of first time grant of lease and not for its renewal. It is argued that the lease area has been reduced without assigning any reason. Therefore, the impugned orders deserve to be set aside and the petition allowed.

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LEGISLATIVE SCHEME

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The 1957 Act, makes provision so as to provide for regulations of mines and development of minerals. Two sections of this Act are relevant for the instant purpose i.e. Sections 13 and 15. They are as follows:-

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“13. Power of Central Government to make rules in respect of minerals. ―(1) The Central Government may, by notification in the Official Gazette, make rules for regulating the grant of mineral concession in respect of minerals and for purposes connected therewith.

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(2) .......................................................................

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15. Power of State Governments to make rules in respect of minor minerals .―(1) The State Government may, by notification in the Official Gazette, make rules for, regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith.

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(1A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:―

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(a) ......................................................................

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.......................................................................”

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Section 10 A of the 1957 Act has also been referred to. It is as below:-

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“ 10A. Rights of existing concession-holders and applicants.- (1) All applications received prior to the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, shall become ineligible.

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(2) Without prejudice to sub-section (1), the following shall remain eligible on and from the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015-

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(a) applications received under section 11A of this Act:

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(b) where before the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 a reconnaissance permit or prospecting licence has been granted in respect of any land for any mineral, the permit holder or the licensee shall have a right for obtaining a prospecting licence followed by a mining lease, or a mining lease, as the case may be, in respect of that mineral in that land, if the State Government is satisfied that the permit-holder or the licensee, as the case may be-

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(i) has undertaken reconnaissance operations or prospecting operations, as the case may be, to establish the existence of mineral contents in such land in accordance with such parameters as may be prescribed by the Central Government;

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(ii) has not committed any breach of the terms and conditions of the reconnaissance permit or the prospecting licence;

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(iii) has not become ineligible under the provisions of this Act; and

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(iv) has not failed to apply for grant of prospecting licence or mining lease, as the case may be, within a period of three months after the expiry of reconnaissance permit or

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prospecting licence as the case may be, or within such further period not exceeding six months as may be extended by the State Government;

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Provided that for the cases covered under this clause including the pending cases, the right to obtain a prospecting licence followed lapse on the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2021:

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Provided further that the holder of a reconnaissance permit or prospecting licence whose rights lapsed under the first proviso, shall be reimbursed the expenditure incurred towards reconnaissance or prospecting operations in such manner as may be prescribed by the Central Government;

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(c) Where the Central Government has communicated previous approval as required under sub-section (1) of section 5 for grant of a mining lease, or if a letter of intent (by whatever name called) has been issued by the State Government to grant a mining lease, before the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, the mining lease shall be granted subject to fulfilment of the conditions of the previous approval or of the letter of intent within a period of two years from the date of commencement of the said Act:

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Provided that in respect of any mineral specified in the First Schedule, no

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prospecting licence or mining lease shall be granted under clause (b) of this sub-section except with the previous approval of the Central Government.

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(d) in cases where right to obtain licence or lease has lapsed under, clauses (b) and (c), such areas shall be put up for auction as per the provisions of this Act:

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Provided that in respect of the minerals specified in Part B of the First Schedule where the grade of atomic mineral is equal to or greater than the threshold value, the mineral concession for such areas shall be granted in accordance with the rules made under section 11B.”

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Rules for regulating the grant of minerals may only be made by the Central Government under Section 13 of the 1957 Act. With regard to minor minerals such Rules for regulating the grant of quarry leases, mining leases or other leases concessions may be made by the State Government under Section 15 of the 1957 Act. Under Section 13 of the 1957 Rules, the 1960 Rules have been made.

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Rule 22 (3) (h) of the 1960 Rules has been referred to on behalf of the petitioner that in the case of renewal of lease of minerals further consent of owner is not required. This Rule 22 (3) (h) is as follows:-

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“22. Application for grant of mining leases.- (1) An application for the grant of mining lease in respect of

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land in which the minerals vest in the Government shall be made to the State Government in Form I through such officer or authority as the State Government may specify in this behalf.

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2................................................................

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(3) (i) Every application for the grant of renewal of a mining lease shall be accompanied by-

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(h) a statement in writing that the applicant has, where the land is not owned by him, obtained surface rights over the area or has obtained consent of the owner for starting mining operations:

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Provided that no such statement shall be necessary where the land is owned by the Government:

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Provided further that such consent of the owner for starting mining operations in the area or part thereof may be furnished after execution of the lease deed but before entry into the said area:

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Provided also that no further consent would be required in the case of renewal where consent has already been obtained during grant of the lease.”

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Reference has also been made to Rule 24 A (6) to argue that, in fact, the petitioner had already filed the application on 07.06.2001, which has not been decided, therefore, the lease shall be deemed to have been extended. This Rule 24 A (6) is as follows:-

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“ 24A. Renewal of mining lease.- (1) An application for the renewal of a mining lease shall be made to the State Government in Form J, at lease twenty four months before the date on which the lease is due to expire, through such officer or authority as the State Government may specify in this behalf:

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Provided that in cases where the mining lease is due to expire on or before the 7^th January, 2017, the application for renewal shall be made at least twelve

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months before the date on which the lease is due to expire.

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(2).............................................................

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(3).............................................................

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(6) if an application for first renewal of a mining lease made within the time referred to in sub-rule (1) is not disposed of by the State Government before the date of expiry of the lease the period of that lease shall be deemed to have been extended by a further period of two years or till the State Government passes order theron, whichever is earlier:

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Provided that the leases where applications for first renewal of mining lease have been made to the State Government and which have not been disposed of by the State Government before the date of expiry of lease and are pending for disposal as on the date of the notification of this amendment, shall be deemed to have been extended by a further period of two years from the date of coming into force of this amendment or till the State Government passes order thereon or the date of expiry of the maximum period allowed for first renewal, whichever is the earliest:

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Provided further that the provisions of this subrule shall not apply to renewal under sub-Section (3) of section 8 of the Mines and Minerals (Development and Regulation) Act, 1957 (67 of 1957).”

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The State of Uttar Pradesh had framed the Uttar Pradesh Minor and Minerals Concession Rules, 1963. After creation of the State of Uttarakhand, these Rules were adopted by the State of Uttarakhand and they are now Uttarakhand Minor and Minerals Concession Rules, 2001. Rule 8 of 2001 Rules, is as follows:-

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“8 Disposal of application .-

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(1) The State Government or the authority authorized by it, subject to the provisions of these rules and after making such further inquiry as it may consider necessary:-

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(a)................................................................ ..........................................................................

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(b) In the case of an application for renewal of a mining lease, it may either reject the application or renew the mining lease for the whole or any part of the applied area and for such period not exceeding the period of the original lease as it deems appropriate.

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Provided that when the application for grant of mining lease and its renewal is rejected or the area is reduced, the reasons thereof shall be recorded and communicated to the applicant.”

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The state of Uttarakhand did announce 2015 Policy. It categorically records that by notification of Government of India dated 10.02.2015, soapstone has been classified as minor mineral. The 2015 Policy also provides that the lease deed issued prior to commencement of 2015 Policy shall automatically be extended for a further period of 50 years.

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APPLICABILITY OF THE RULES

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The husband of the petitioner was granted lease for mining of soapstone. It was a mineral till 10.02.2015. Therefore, under Section 13 of the 1957 Act, the Rules that

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were made by the Central Government were applicable in that matter. The applicable Rules were 1960 Rules.

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But, fact remains that the renewal application of the petitioner has yet not been decided with regard to the land falling within Village Pangchaura. Today, soapstone is not a mineral, instead it is a minor mineral.

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On the question of applicability of the Rules, learned counsel for the private respondent would submit that in the instant case, 2001 Rules would be applicable because on the date when the application is to be considered, soapstone is a minor mineral. The State Government may regulate the mining of the minor minerals and 2001 Rules are in force with regard to the minor minerals. Learned counsel has referred to the principles of law, as laid down by the Hon’ble Supreme Court in the case of State of Tamil Nadu Vs. M/s Hind Stone and others, 1981 2 SCC 205. In para 13 of the judgment, the Hon’ble Supreme Court observed as follows:-

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“13. Another submission of the learned counsel in connection with the consideration of applications for renewal was that applications made sixty days or more before the date of GOMs No. 1312 (December 2, 1977) should be dealt with as if Rule 8-C had not come into force. It was also contended that even applications for grant of leases made long before the date

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of GOMs No. 1312 should be dealt with as if Rule 8-C had not come into force. The submission was that it was not open to the government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8-C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8-C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of GOMs No. 1312 should be dealt with as if Rule 8-C did not exist.” (emphasis supplied)

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A bare reading of principles of law, as laid down by the Hon’ble Supreme Court makes it abundantly clear that the petitioner does not have a vested right to the renewal of the lease. In the absence of any vested right, the application for renewal of the petitioner has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the delay in disposal of the application.

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This Court is considering the non grant of renewal of the mining to the petitioner. With effect from 10.02.2015, the soapstone is a minor mineral. Therefore, after 10.02.2015 and even today, the renewal for mining application filed by the petitioner has to be dealt with in accordance with 2001 Rules. In the instant case, after 10.02.2015, 1960 Rules will not be applicable. This conclusion stops further scrutiny of the operation of Rules 22 (3) (h), 24 (A) (6) of the 1960 Rules. However, it may be noted here that, in fact, in the petition that was filed by the petitioner, this Court on 28.02.2012, has observed that the petitioner had filed an application for third renewal on 12.06.2001, which is not 12 months prior to the expiry of the lease deed. Therefore, deeming provisions of sub Rule (6) of the Rule 24 A is not attracted.

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VALIDITY OF REDUCTION OF MINING AREA IN THE

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INSTANT CASE

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Rule 8 of the 2001 Rules, makes provisions with regard to the disposal of application of lease for renewal. By the office memorandum dated 27.02.2017, the State Government has held that the renewal of lease shall be governed by Rule 8 (1) (b) of the 2001 Rules. According to Rule 8 (1) (b) of the 2001 Rules, the State Government or

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officer authorised in its behalf may reject an application for renewal of the mining lease or may reduce the area or restrict the renewal for a lesser period. But, whenever the renewal application is rejected or area is reduced, its reasons shall be recorded and applicant shall be communicated about it.

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In the instant case, the impugned office memorandum dated 27.02.2017 is quite in detail. In para 6 of this office memorandum, it is recorded that the villagers of the Village Pangchaura did not give no objection in favour of the petitioner. Therefore, it records that out from the initially sanctioned mining area, an area of 14.328 hectares falling within the Village Pangchaura has been reduced. Accordingly, the order has been passed.

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The office memorandum dated 27.02.2017 records reasons as to why the mining area of the petitioner has been reduced and this has been communicated to the petitioner. This is complete compliance of Rule 8 of the 2001 Rules.

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APPLICATION OF UTTARAKHAND MINOR MINERALS POLICY, 2015

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2015 Policy is a policy as the name suggests. It does not govern renewal or grant of lease. For renewal or grant of lease, 2001 Rules makes provision and they would be applicable.

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It is argued on behalf of the petitioner that 2015 Policy makes provisions that the lease issued prior to coming in force of the 2015 Policy shall be automatically extended for 50 years.

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This Court refrains to make deeper scrutiny on this subject. Fact remains that lease deed granted in favour of the husband of the petitioner had expired on 15.05.2002. The lease deed has not been renewed thereafter with regard to the land falling in Village Pangchaura. To the extent of 14.328 hectares land of Village Pangchaura, on the date when 2015 Policy came into existence, there was no valid mining lease in favour of the petitioner. Therefore, there is no question of any automatic extension of 14.328 hectare of land falling within Village Pangchaura for another 50 years. The provisions as contained in the 2015 Policy does not apply

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to those lease, which had already been expired. Therefore, arguments made on this count have also less force for acceptance.

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APPLICABILITY OF SECTION 10A OF THE 1957 ACT

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On behalf of the private respondent, it is argued that Section 10 A of the 1957 Act, makes the renewal application of the petitioner ineligible. This provision has already been quoted hereinabove.

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Learned counsel for the petitioner would submit that the provision of Section 10 A of the 1957 Act shall come into operation only when any application for grant of lease is pending, but it shall not be applicable on the application for renewal of mining lease. This differentiation as made by the learned counsel for the petitioner, is not in accordance with Section 10 A of the 1957 Act. Section 10 A of the 1957 Act, does not make any distinction between the application for grant of lease for the first time or application for renewal of the lease. What it speaks is that all applications received prior to the date of commencement of Mines And Mineral (Development and Regulation) Amendment Act, 2015 shall become ineligible. This provision came into statute book w.e.f. 12.01.2015.

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On that date, the application for renewal of the mining lease, given by the petitioner was pending. Therefore, in view of Section 10 A of the 1957 Act, the application for renewal of lease, that had been filed by the petitioner and which had been received prior to coming into force of the Mines And Mineral (Development and Regulation) Amendment Act, 2015, has become ineligible.

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CONCLUSION

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In view of the foregoing discussion, this Court is of the view that there is no merit in this writ petition. It deserves to be dismissed.

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The writ petition is dismissed.

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(Ravindra Maithani, J.) 14.12.2023

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Jitendra

Smt. Nandita Tiwari v. State of Uttarakhand through Secretary

Case brief

What is this about?

What did the court decide?

Smt. Nandita Tiwari v. State of Uttarakhand through Secretary

Case brief

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