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TMI Blog2014 (3) TMI 1151X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 29-09-2009 was very much available for reservation under Section 17-A(1-A) of the MMDR Act and the notification dated 29-09-2009 therefore cannot be held to be bad-in-law. The challenge raised by the petitioner to the notification dated 29-09-2009 is about the manner of exercise of power under Section 17-A(1-A) of the MMDR Act and not to the availability of such power for reservation with the Central Government. Even otherwise the issue of notification dated 12-10-2006 by the State Government calling upon general public to file applications for grant of mining leases over certain areas and the order passed on 26-06-2008 in favour of the petitioner do not take away the special powers of the Central Government as vested in it under Section 17-A(1-A) of the MMDR Act - the Central Government notification cannot be said to be vitiated. Petition dismissed. - Writ Petition No.3169 of 2011 - - - Dated:- 26-3-2014 - B.P. Dharmadhikari And P.R. Bora, JJ. Shri S.V. Manohar, with Shri V.S. Kukday, for petitioner. Shri M.G. Bhangde with Shri G.G. Modak, Shri S.K. Mishra, ASGI for respondent. JUDGMENT P. R. Bora, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicants including that of respondent No.4. 5] Respondent No.4, being aggrieved by the said order preferred the revision under Rule 54 of the Mineral Concession Rules, 1960 hereinafter referred to as M.C. Rules to the Central Government. Present petitioner was respondent No.1 in the said revision application, whereas the State Government was respondent No.2. During pendency of said revision application before the Central Government Tribunal, the Central Government, acting under the powers conferred upon it by the provisions of Section 17-A(1-A) of the MMDR Act reserved some areas from District Nagpur and from District Bhandara for carrying out mining activities in respect of Manganese Ore through Manganese Ore India Limited i.e. respondent No.4 by issuing a notification dated 29-09-2009 in that regard. 6] The Central Government Tribunal decided the revision application so filed by respondent No.4 along with another revision application filed by M/s. Prithvi Enterprises by a common order passed on 26-08-2010. The Central Government Tribunal set aside the order dated 26-06-2008 passed by respondent No.3. 7] The order passed by respondent No.1-Tribunal r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the notification dated 29-09-2009 has in fact no bearing on the mining lease granted of the area in favour of the petitioner, since it is a different area but for want of fair opportunity by the respondent No.1 this fact could not be brought to its notice. 10] The learned counsel further submitted that the Central Government could have issued notification under Section 17-A(1-A) of the MMDR Act, only in respect of the area not earlier notified for prospecting licence or mining lease. The learned counsel submitted that before issuance of the said notification, the State Government did not seem to have been consulted. The learned counsel further submitted that respondent No.1 overstepped its authority in setting aside the order passed by the State Government on 26-06-2008. The learned counsel further submitted that the respondent No.1 failed in appreciating that respondent No.4 had applied for the mining lease of the area from village Chikhla as a Member of public and as such could not have thereafter sought reservation of the same area after having failed to compete with other applicants. For many such reasons, according to the learned counsel notification dated 29-09-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainable. 14] To substantiate his contention, the learned counsel relied upon the Judgment of the Apex Court in the case of Geomin Minerals and Marketing Private Limited v State of Orissa and others, (2013) 7 SCC 571. Learned counsel brought to our notice that in the said matter the recommendation to the Central Government by the State Government of Orissa in favour of POSCO under Section 11(3) and(5) of the MMDR Act was challenged by Geomin Minerals before the Orissa High Court. The Orissa High Court on its interpretation of Section 11(2), (3) and (4) held that Geomin Minerals and Marketing Private Limited was having preferential right for grant of licence and lease and that the recommendation made by the State Government under Section 11(5) in favour of the POSCO was invalid. The said Judgment was challenged by POSCO before the Hon'ble Apex Court which was allowed by the Hon'ble Apex Court holding that the High Court committed a grave error of law in deciding the case on merits and deciding the question of legality of the recommendation made by the State Government. The Apex Court has further observed that the High Court should have left that matter to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application should be accompanied by [a Bank Draft for [five thousand rupees] on a nationalised bank in the name of Pay and Accounts Officer, Department of Mines payable at New Delhi or through a treasury challan for [five thousand rupees] under the Head of Account-0853-Non-ferrous Mining and Metallurgical Industries-102 Mineral Concession Fees, Rents and Royalties:] Provided that any such application may be entertained after the said period of [three months] if the applicant satisfies the Central Government that he had sufficient cause for not making the application within time. Sub-rule (2) of Rule 54 is more relevant, which reads thus:- (2) In every application under sub-rule (1) against the order of a State Government refusing to grant a prospecting license or a mining lease, any person to whom a prospecting license or mining lease was granted in respect of the same area or for a part thereof, shall be impleaded as party . 17] The plain reading of the above rule and sub-rule leaves no doubt that any person whose application has been rejected by the State Government can very well challenge the said order by filing revision application invoking Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion dated 29-09-2009 is the violation of fundamental right of equality as guaranteed by the Constitution of India. According to the petitioner the impugned notification has created beneficial position in favour of respondent No.4 who had earlier participated with the other participants including the petitioner and failed to obtain the lease of the area notified by the State Government vide notification dated 12-10-2006. 22] After having considered the contentions so raised in the petition and reiterated by the learned counsel in his arguments, it is apparently revealed that the grounds raised by the petitioner in challenge of the notification dated 29-09-2009 are contradictory to each other. At the first instance the petitioner has come up with the case that the notification dated 29-09-2009 does not have any bearing on the grant of lease in his favour by the State Government vide order dated 26-08-2008, since it is the different area than reserved by the Central Government vide notification dated 29-09-2009 and immediately thereafter the petitioner has alleged that the said notification is ultra vires since it has been brought in ignorance of the State Government's no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commended for grant of mining lease by the State Government vide order dated 26-06-2008. Para 13 of the impugned order reveals that since there was no written communication from the State Government despite direction to their representative as mentioned herein above a further communication was sent to the State Government vide letter No. 17 (16)/2008-RC-II dated 11-12-2009 seeking specific and categorical reply whether the area recommended for grant of mining lease in favour of impleaded party i.e. the present petitioner vide impugned order dated 26-06-2008 included the area reserved vide notification dated 29-09-2009 or not. It was made clear in the said letter that in the event of there being no reply from the State Government, it would be presumed that the submissions of the counsel of MOIL pertaining to reservation of recommended area would be taken as true. In the impugned order the respondent No.1-Tribunal has further observed that despite categorical direction there was no written submission from the State Government which led to the presumption that the averment made by the representative of MOIL is correct that the same area recommenced for mining lease in favour of the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment's order dated 26-06-2008 which has been much emphasized by the petitioner, is only the recommendation of the State Government in favour of the petitioner for grant of lease of the area mentioned therein and the same was subject to the approval of the Central Government. Unless approved by the Central Government, State Government could not have granted the mining lease of the said area in favour of the petitioner. In fact no such lease has been granted in favour of the petitioner and the matter had remained at the stage of recommendations only. 31] It will be useful to note the provisions in the MMDR Act and M.C. Rules which require Central Government's approval before grant of mining lease of any area in favour of any party. Section 5 of the MMDR Act provides restriction on the grant of prospecting licenses or mining leases. Proviso to Section 5(1) stipulates that in respect of any mineral specified in the first schedule, no reconnaissance permit, prospecting license or mining lease shall be granted except the previous approval of the Central Government. There is no dispute that the Manganese Ore is specified in part-C of the First Schedule. The Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for grant of mining leases-(1) An application for grant of a mining lease in respect of 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. [(4) On receipt of the application for the grant of a mining lease the State Government shall take decision to grant precise area for the said purpose and communicate such decision to the applicant. On receipt of communication from the State Government of the precise areas to be grated, the applicant shall submit a mining plan, within a period of six months or such other period as may be allowed by the State Government, to the Central Government for approval. The applicant shall submit the mining plan, duly approved by the Central Government or by an officer duly authorised by the Central Government, to the State Government to grant mining lease over that area.] 35] As provided in the aforesaid rule the State Government has communicated its decision dated 26-06-2008 to all concerned including the present petitioner and respondent No.4 vide its communication dated 28-07-2008 supplying thereb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... event the application fee shall be forfeited to the State Government. 38] Sub-rule (2) of Rule 31 says that the date of the commencement of the period for which a mining lease is granted shall be the date on which a duly executed deed under sub-rule (1) is registered. In the instant case, admittedly, there is no such Lease Deed executed. In the light of the provisions referred to hereinabove it will have to be determined whether the area from village Chikhla reserved by the Central Government vide notification dated 29-09-2009 for carrying out mining activities in respect of mining ore through MOIL was already held under any prospecting licence or mining lease. It is not in dispute that on the day the Central Government issued the notification dated 29-09-2009, the area reserved therein was already recommended by the State Government for grant of lease in favour of the petitioner vide order its dated 26-06-2008. However, order dated 26-06-2008 was mere a recommendation in favour of the petitioner for grant of lease and it was subject to the approval from the Central Government as provided under Section 5(1) of the MMDR Act. 39] Even otherwise, when the order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore cannot be held to be bad-in-law. We reiterate that though the State Government had favourably considered the application of the petitioner and had made recommendation in its favour since no further steps were taken by the petitioner under Rule 22(4) of the M.C. Rules, 1960 and for want of prior approval by the State Government as provided under Section 5(1) and 11(5) of the MMDR Act it had still remained a recommendation. 43] The Judgment of the Hon'ble Apex Court in the case of Geomin Minerals (cited supra) relied upon by the petitioner to substantiate his argument in regard to the maintainability of the revision application filed by respondent No.4 before the Central Government Tribunal, read as a whole, appears to be more supporting to the points urged by respondent No.4 that the order passed by the Central Government on 26-06-2008 was a mere recommendation and not the grant of lease. The Hon'ble Apex Court has held that the State Government can pass final order of granting mining lease only after the approval granted by the Central Government under Section 5(1) or Section 11(5) of the MMDR Act. The Hon'ble Apex Court has further held that proviso t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment. Even otherwise the issue of notification dated 12-10-2006 by the State Government calling upon general public to file applications for grant of mining leases over certain areas and the order passed on 26-06-2008 in favour of the petitioner do not take away the special powers of the Central Government as vested in it under Section 17-A(1-A) of the MMDR Act. 46] In so far as the argument that the State Government was not consulted before issuance of the notification dated 29-09-2009 is concerned, nothing has come on record from the State Government showing that it was not consulted. There is no reason to doubt the averment in the Central Government notification dated 29-09-2009 that the same has been issued after consultation with the Government of Maharashtra when the State Government has not denied or disputed the said fact. Further, from the wordings of Section 17-A(1-A) it is clear that consultation with the State Government is only mandatory and not the concurrence. For this reason also the Central Government notification cannot be said to be vitiated. 47] It appears that the challenge of the petitioner to the Central Government notification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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