IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 2337 of 2007 Date of decision : 5.8.2009 Satish Kumar ….. Petitioner Versus State of Haryana and another ….. Respondents Present: Mr. Govind Goel, Advocate for the petitioner. Mr. Sudhir Makkar, Sr. DAG, Haryana for respondents. **** S.S. SARON, J. The civil writ petition has been filed by Satish Kumar (petitioner) seeking quashing of the order dated 31.08.2006 (Annexure P-1) whereby renewal of mining lease for Marble Minor Minerals over an area of 63 kanals in village Bayal, District Mahendergarh has been rejected. It is prayed that a directions be issued in favour of the petitioner to renew the mining lease in his favour. The petitioner applied for and was granted mining lease for extraction of marble. A lease deed dated 13.3.1995 was executed between the CWP No. 2337 of 2007 2 petitioner and the respondents. In pursuance thereof, the petitioner had mining rights for extraction of marble over an area measuring 63 kanals (3.35 hectares approximately) in village Bayal, District Mohindergarh for a period of five years. In view of the lease, being given, the petitioner, it is stated, invested lacs of rupees in mobilizing the plant and machinery, besides, construction of building etc. The period of five years for which the lease was granted w.e.f. 13.3.1995 expired on 12.3.2000. The petitioner, however, before the period of expiry of the lease submitted an application for its renewal which was granted in terms of order dated 31.12.2001 for a further period of five years w.e.f. 13.3.2000. During the extended period also, the petitioner made huge investments in developing of mining pits. The grievance of the petitioner now is against the impugned order dated 31.8.2006 (Annexure P1), whereby his application for further renewal of lease for extraction of marble has been declined on the ground that renewal of mining lease is now not contemplated by any rule under the Punjab Minor Mineral Concession Rules, 1964 (“1964” Rules – for short). Besides, the area of lease being less than 4 hectares, the same could not be renewed. According to the petitioner, the said two reasons assigned by the respondents for declining the application of the petitioner for further extension of lease are not tenable and even otherwise are contrary to the statutory rules that are applicable. It is submitted that keeping in view the nature of mining operations which essentially CWP No. 2337 of 2007 3 is a long term measure, therefore, to make the lease economically viable, the mining is contemplated to be a long term project. It was, therefore, provided by the 1964 Rules to renew the lease. It is also submitted that for the purpose of granite and marble etc. specific Rules like the Granite Development and Conservation Rules, 1999 and Marble Development and Conservation Rules 2002 ( 2002 Rules – for short) have been framed by the Central Government to provide for a uniform frame-work through out the country. The scheme of the said Rules not only contemplate long duration of lease but also provides for their renewal keeping in view the huge investments and economic viability of such leases that may be involved. Therefore, it is submitted that the action of the respondents in not further renewing the lease of the petitioner on the ground that 1964 Rules do not provide for further extension and also that the area is less than 4 hectares, are wholly misconceived. Written statement has been filed by the Mining Engineer Department of Mines and Geology, Haryana on behalf of the respondents. It is stated that the petitioner was granted mining lease for extraction of marble, which is a minor mineral. The lease was over an area of 63 kanals i.e. 3.15 hectares of land in village Bayal, District Mohindergarh. The same was as per the existing provisions of Rule 7 of 1964 Rules. On 23.2.1995, the petitioner was asked to execute a mining lease deed on Form ‘F’ appended to the 1964 Rules within a period of 3 months as required under Rule 19 of 1964 Rules. The CWP No. 2337 of 2007 4 lease deed was executed for a period of 5 years on 13.3.1995. After the expiry of mining lease period on submission of application for renewal of lease, the lease was further renewed as per existing provisions of Rule 18(2) of 1964 Rules for another period of 5 years w.e.f. 13.3.2000. The period of lease was to expire on 12.3.2005. The petitioner on 30.08.2004 (Annexure P-3) applied for another renewal of mining lease for the area in question. The application for renewal was submitted in terms of Rule 18(2) of the 1964 Rules. However, the said Rule in fact had been omitted by the State Government on 9.10.2001. The amended 1964 Rules now provides for open auction as a mode for allotment of mining leases for minor mineral. Therefore, the application of the petitioner, it is submitted, was not maintainable. It is further submitted that the Central Government on 15.5.2002 notified the 2002 Rules for conservation, systematic development and scientific mining to conserve the marble resources and to provide a uniform frame-work with regard to systematic and scientific exploitation of marble throughout the country. The provisions of Rule 7(i) of 2002 Rules envisages that the minimum area for grant of lease for marble shall not be less than four hectares. Further Rule 46 of 2002 Rules envisages that the provisions of Minor Mineral Concession Rules or any other Rules framed by the State Government under Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957 (1957 Act - for short) shall be applicable to the marble quarry or mine leases to the extent that they are not repugnant to the 2002 Rules CWP No. 2337 of 2007 5 for marble. Therefore, it is submitted that there being no provision for renewal of a mining lease under the 1964 Rules and the provisions of Rule 7(i) of 2002 Rules providing for a minimum area of 4 hectares for the grant of marble lease, the application of the petitioner for further renewal of the lease has rightly been declined. The petitioner has filed replication. It is accepted that the provisions of Rule 18(2) of the 1964 Rules stand omitted w.e.f. 9.10.2001. It is, however, submitted that it was wrong to contend that the application for grant of renewal of lease that was submitted by the petitioner was not maintainable as there are sufficient provisions in other relevant Rules contemplating the said renewal like the Punjab Minor Mineral Concession Rules, 1960 framed by the Central Government under Section 13 of the 1957 Act which contemplate for the grant of renewal of mining lease. A reference is made to the said Punjab Mineral Concession Rules, 1960 in terms of which it is submitted that the application for renewal of mining lease of the petitioner could well be considered and examined. Besides, it is submitted that Section 13 of the 1957 Act also contemplate the grant of renewal of mining leases. Therefore, in the absence of provision in the 1964 Rules, it is submitted that the application for renewal of mining lease can be considered and examined under other provisions. The assertions as made in the writ petition have been reiterated. CWP No. 2337 of 2007 6 Sh. Govind Goel, Advocate, learned counsel for the petitioner has contended that the two reasons mentioned by the authorities i.e. there being no provisions in 1964 Rules for renewing the lease and the area of mining lease being less than 4 hectares for not renewing the mining lease of the petitioner are wholly unsustainable. It is submitted that Rule 12(2)(a) of the 2002 Rules clearly provides for renewal of lease over an area exceeding one hectare on the submission of a mining plan. The petitioner, it is submitted, has already given a mining plan. Besides, a reference is made to Rule 7 of the 2002 Rules to contend that the condition of 4 hectares for grant of mining lease can be given in terms of the proviso to Rule 7 of the 2002 Rules. Therefore, it is submitted that the entire stand of the respondent is baseless and devoid of merit. In response, Sh. Sudhir Makkar, Sr. DAG, Haryana, Advocate appearing for the respondent has submitted that the relevant provisions of the 1964 Rules providing for renewal of lease having been omitted, no renewal of the lease can be made. It is also submitted that the 2002 Rules are not for purposes of granting of lease but have been framed for conservation, systematic development and scientific mining to conserve marble resources and to provide a uniform framework with regard to systematic and scientific exploitation of marble. Therefore, the grant of leases and its renewal is the domain of the State Government which is governed by the 1964 Rules. CWP No. 2337 of 2007 7 In order to appreciate the contentions of the learned counsel for appearing for the respective parties, it may be noticed that the Rules providing for mining of mining minerals have been framed by the State Government in exercise of power conferred by Section 15(1) of the 1957 Act. The 1957 Act has been enacted to provide for the development and regulation of mines and minerals under the control of the union. “Minerals” has been defined in Section 3(a) which includes all minerals except mineral oils. Section 3(e) defines “minor minerals”. The same reads as under:- “(e) minor minerals means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral.” Section 13 of the 1957 Act confers power on the Central Government to make Rules in respect of minerals. Section 13(2)(g) of the 1957 Act reads as under:- “(2) 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:- CWP No. 2337 of 2007 8 (g) the terms on which, and the conditions subject to which, any other reconnaissance permit, prospecting licence or mining lease may be granted or renewed.” Section 15 of the 1957 Act provides for power of State Governments to make Rules in respect of minor minerals. According to Sh. Govind Goel, Advocate learned counsel appearing for the petitioner, the 2002 Rules have been framed by the Central Government in terms of Section 13 of the 1957 Act and Section 13(2)(g) of the said 1957 Act relates to the terms on which, and the conditions subject to which, any other reconnaissance permit, prospecting licence or minor lease may be granted or renewed. It is further submitted even if the 1964 Rules that have been framed by the State Government do not provide for renewal of licence, the same can be renewed in terms of 2002 Rules and therefore, the lease granted to the petitioner can be renewed in terms of Rule 12 of the 2002 Rules. Rule 12 of the 2002 Rules reads as follows:- “12. Mining Plan as a pre-requisite to the grant of lease – (1) No lease shall be granted by the State Government unless there is a mining plan duly approved by the State Government or any person CWP No. 2337 of 2007 9 authorized in this behalf by that Government for the development of marble deposit in the area concerned. (2) (a) For the renewal of any lease over an area exceeding one hectare the State Government shall require the lessee to submit a mining plan duly approved by the State Government or any person authorized in this behalf by that Government for the development of marble deposit in the area concerned. (b) For the purpose of renewal of a mining lease up to an area of one hectare, the State Government shall specify a simplified scheme of mining to be submitted by the lessee for approval by the State Government or any other person authorized in this behalf.” After giving my thoughtful consideration to the contentions of the learned counsel for the petitioner that the lease that was granted in favour of the petitioner can be renewed in terms of 2002 Rules is devoid of merit. It may be noticed that in the Scheme of 1957 Act, the Rules for regulating the grant of lease for mining minerals vests in the State Government. Section 13 of the 1957 Act relates to power of Central Government to make rules in respect of minerals. Minerals as has already been noticed includes all minerals except oil minerals in CWP No. 2337 of 2007 10 terms of Section 3(a) of the 1957 Act. Marble is a minor mineral. Rule 3(h) of the 2002 Rules defines Marble as follows:- “(h) “marble” means crystalline metamorphosed calcarious or dolomitic rocks and serpentine rock types which are- (i) amenable to be recovered as dimensional stone; and (ii) capable of taking polish.” Rule 12 of the 2002 Rules on which reliance has been placed by the learned counsel for the petitioner clearly provides that no lease shall be granted by the State Government unless there is a mining plan duly approved by the State Government or any person authorized in this behalf by that Government for the development of marble deposit in the area concerned. The Rule itself provides for grant of lease by the State Government. The rider is that there should be a mining plan duly approved by the State Government. The 2002 Rules have been framed in exercise of powers conferred by Section 18 read with Sections 21 and 26 of the 1957 Act. These have not been framed in exercise of the powers conferred by Section 13 of the 1957 Act as is contended by the learned counsel for the petitioner. Section 18 of the 1957 Act falls under the heading, “Development of Minerals”. Section 18 provides for mineral development and it is provided therein that it shall be the duty of the Central CWP No. 2337 of 2007 11 Government to take all such steps as may be necessary for the conservation and systematic development of minerals in India and for the protection of environment by preventing or controlling any pollution which may be caused by prospecting or mining operations for such purposes the Central Government may, by notification in the Official Gazette, make such Rules as it thinks fit. Sub Section (2) of Section 18 provides for the matters for which the Rules may be framed. Section 21 of the 1957 Act provides for penalties and Section 26 thereof provides for delegation of powers. For the purposes of grant of lease and its renewals, the same is primarily the domain of the State Government. The 1964 Rules were framed by the State Government and have been modified by the Haryana State Government. Earlier, Rule 18 of the 1964 Rules provided that the period for which a mining lease may be granted shall be five years in the first instance, unless the Government allows a longer period not exceeding ten years. The mining lease may be renewed for one or two periods not exceeding the period for which the mining lease was originally granted. The said Rule had been omitted by the Haryana State vide notification dated 9.10.2001. Rule 10 earlier to its omission provided for priority in granting mining lease to be given firstly to the discoverer of the new mineral, secondly to a person who intends to set up a mineral-based industry in the State and thirdly to a co-operative society. The said Rule has also been omitted and now a provision has been made for granting of leases by public auction. It is provided in terms of Rule 10 of the CWP No. 2337 of 2007 12 1964 Rules after its substitution that notwithstanding anything contained in the 1964 Rules any minor mineral deposit may be granted on mining lease for a period of seven years by public auction. Therefore, lease is to be granted only by way of the public auction and the provision providing for extension of lease has been omitted. Rule 12 of the 2002 Rules only provides for a mining plan to be given as a pre-requisite to the grant of lease. Mining plan has been defined in Rule 2(o) of the 1964 Rules, which is as follows:- “mining plan” means a mining plan prepared by mining lessees of mining mineral lease granted under these Rules.” Therefore, Rule 12 of the 2002 Rules cannot be applied for the purpose of renewal of lease. It is only a regulatory measure for the grant of lease which also is granted by the State Government and the rider is that it shall not be granted or renewed unless there is a mining plan. The provisions of Rule 12 by itself does not contemplate renewal of leases. The other contention of the learned counsel for the petitioner that the area of lease being less than 4 hectares cannot be a condition that can be set up for not renewing a lease may also be noticed. In this regard, a reference may be made to Rule 7 of the 2002 Rules which reads as follows:- CWP No. 2337 of 2007 13 “Minimum and maximum area for grant of a mining lease – (1) The minimum area that may be granted under a lease for ensuring mining activities to optimum depth shall not be less than four hectares with the restriction that the dimension on any one side of such area shall not be less than 200 metres. (2) The maximum area that may be granted under a mining lease shall not exceed fifty hectares: Provided that the State Government, if it is satisfied on the basis of proposed production level, geological, topographical or other conditions, may for the reasons to be recorded in writing, grant a lease over an area more than the maximum area or less than the minimum area specified under this rule.” The above Rule provides that the minimum area that may be granted under a lease for ensuring mining activities to optimum depth shall not be less than four hectares. In terms of the proviso, the State Government if it is satisfied on the basis of conditions as mentioned therein and other conditions, may for the reasons to be recorded in writing grant a lease over an area more than the maximum area or less than the minimum area specified under Rule 7. CWP No. 2337 of 2007 14 Therefore, the learned counsel for the petitioner may be quite right that the condition of minimum four hectares area for grant of lease can be relaxed by the State Government in terms of the proviso to Rule 7. However, this aspect need not be gone into as the State Government has declined to renew the lease as there is no provision for such renewal under the 1964 Rules. As such even if the requirement of minimum hectares on lease could be relaxed, the same would be of no consequence. Besides, it is for the State Government to relax the same in terms of the proviso. The reliance placed on Rule 46 of the 2002 Rules is also not of much significance as nothing has been shown that the 1964 Rules framed by the State Government are, in any manner, repugnant to the 2002 Rules framed by the Central Government. The 2002 Rules operate in different spheres. The 2002 Rules are for conservation, systematic development and scientific mining to conserve the marble resources and to provide a uniform frame-work with regard to systematic and scientific exploitation of marble throughout the country. However, the 1964 Rules are for regulating the grant of mining leases and their renewal etc. which are applicable in the present case. In terms thereof, the petitioner cannot seek renewal of his lease. Even otherwise the policy of the State now being to give leases for mining of marble by public auction is not liable to be interfered with by this Court in exercise of its supervisory writ jurisdiction under Article 226 of the Constitution. CWP No. 2337 of 2007 15 In view of the above, there is no merit in this petition and the same is accordingly dismissed. (S.S. SARON) JUDGE August 5, 2009 amit