IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5771 of 2009 1. Ajay Kumar, son of Sh. Babuanand Sinha, Resident of vill. & P.O. Rajgir, P.S. Rajgir, District-Nalanda 2. Vijay Kumar, son of Late Sidhnath Prasad, resident of Birpur, P.S. Birpur, Dist. Supaul 3. Rajendra Prasad Sinha, son of Late Baldeo Prasad, Resident of Bhado Kherapar Rajgir, Post office & P.S. Rajgir, District-Nalanda ……………………. Petitioners Versus 1. The State of Bihar 2. Commissioner-cum-Secretary, Department of Mines, Government of Bihar, Old Secretariat, Patna 3. Collector, Nawada 4. Assistant Mining Officer, Nawada ……………….. Respondents. ----------- For the petitioners: Mr. Prabhakar Singh For the Respondents: Mr. V.M.K.Sinha, Spl. P.P.Mines. ----------- 2. 6.5.2009 Heard learned counsel for the petitioner and learned Special P.P., Mines for the State. The petitioners seek quashing of the order dated 1.2.2007 passed by the Collector, Nawadah in Case Nos. 13/06, 14/06 and 15/06 and the order dated 1.10.2008 passed by the Commissioner, Mines, Government of Bihar in Revision Case Nos. 14/07, 15/07 and 16/07. The three petitioners claim to have participated in the auction for quarrying leases and being the highest bidders granted the mining leases for different areas. The case of the petitioners is that thereafter they have deposited the first instalment of 20% of the bid amount within the stipulated period and were put in possession of the mining areas in question and started carrying out the mining operations and also complied with the other provisions of the Bihar Minor Mineral Concession Rules with respect to filing of returns, etc. Thereafter they also deposited the second, third and fourth instalments. In the year 2 2006 certain allegations were made regarding carrying out illegal mining from nearby forest areas upon which the respondent no.3, the Collector, Nawadah cancelled the mining leases but the same was set aside by the respondent no.2, Mines Commissioner, Bihar on the ground that no notice or opportunity was given to the petitioners. Thereafter the respondent no.3, the Collector, Nawadah after hearing the petitioners by his impugned order dated 1.2.2007 passed in Case Nos. 13/06, 14/06 and 15/06 cancelled the mining leases on the ground of illegal mining. Aggrieved by the same the petitioners approached the Mines Commissioner by filing Revision Case Nos. 14/07, 15/07 and 16/07 which were disposed of by a common order dated 1.10.2008. In the said order the Mines Commissioner held that the petitioners could not be held guilty merely on suspicion and there was no direct evidence against them regarding the charge of illegal mining. However, he found that show cause was issued to the petitioners on five points and regarding point no. 5, i.e., non-execution of the lease deed within 90 days as per Rule 25 of the BMMC Rules, 1972 the petitioners had chosen not to say anything. It was found that although there was provision for extension of time but the petitioners never applied for extension of time for execution of the lease agreement and therefore no benefit could be given to them of such extension. It was held that the petitioners having not taken any step whatsoever for execution of the agreement for about four years after the sanction of the lease in 2002, the same must be deemed to have been revoked in view of the provisions of Rule 25 and accordingly dismissed the revision petitions. 3 However, to save the petitioners from serious legal repercussions arising from revocation of the order sanctioning lease it was held by the Mines Commissioner that in the peculiar facts and circumstances of the case the mining of lease by the petitioners prior to the issuance of the impugned order shall be treated as valid and legal. Learned counsel for the petitioners submits that the Collector had not cancelled the lease of the petitioners on the ground of non-execution of the lease agreement within the statutory period and thus it was not open to the Mines Commissioner as the revisional authority, having once decided that no illegal mining has been done by the petitioners, to have dismissed the revision petition on a ground which was not a ground for cancellation by the Collector. It is further submitted that the petitioners were granted mining lease not under Rule 9(1) with respect to which alone Rule 25 of the Rules applies fixing a maximum statutory period subject to extension; rather the petitioners were granted lease under Rule 52 with respect to which the lease agreement has to be executed under Rule 25 of the Rules which does not provide for any limitation for the execution of the same. It is further submitted that since the petitioners had deposited all the rents and royalties for the period in question which was duly accepted by the authorities the petitioners should not be made to suffer on account of non-execution of the lease agreement and the period should be extended and they should be permitted to carry on the mining activities for the remaining period of five years since the 4 intervening period of 3 ½ years, during which the petitioners could not carry on mines work has already been condoned by the Mines Commissioner by his order dated 20.12.2007. Learned Special P.P. Mines, on the other hand, submits that Rule 9(1) is the general rule for the grant of mining leases except of granite and the said rule is not confined to the manner in which the lease has been granted, whether by filing of an application or by auction/tender and, therefore, all such mining lease of minor minerals except of granite is granted under Rule 9(1) and for the execution of the lease agreement with respect to the same the statutory period of 90 days shall apply to them. It is further submitted that there can be no question of extension of the period unless the applicant is able to satisfy the Collector that he is not responsible for delay in execution of the formal lease and not otherwise. Learned counsel also submits that the Mines Commissioner as the revisional authority under the statutory Rules was fully justified in upholding the order of the Collector on any other legal ground available and there is no illegality in the impugned order dated 1.10.2008 on that count. On a consideration of the rival submissions this Court finds sufficient force in the submission of learned counsel for the Mines Department. Once the revision applications were filed before the Mines Commissioner, then it was open to the Mines Commissioner to consider the matter as a whole and since the show cause has been sought from the petitioners on five points, if he came to the conclusion 5 regarding any of those points and the petitioners were unable to satisfy him, then he could have dismissed the revision on the said ground. In the present matter the Mines Commissioner came to the conclusion that the petitioners had not got the lease agreement executed within the statutory period of 90 days of the order sanctioning the lease and thus the statutory rule would come into effect and the orders sanctioning the lease would be deemed to have been revoked. He further came to the conclusion that since no steps at all were taken by the petitioners for the execution of the lease agreement hence there could be no occasion for reaching any satisfaction that the applicants of lease were not responsible for delay and thus there would be no question of extension of statutory period of 90 days in favour of the petitioners. The relevant provisions in this regard are Rules 9(1), 9A, 52(1), 25 and 25A which are quoted hereinbelow. “ 9(1)Except of Granite (a)- A mining lease except of granite shall be granted by the Collector, (b) Mining lease or prospecting licence of granite shall be granted by the State Govt. “ 9A. Notwithstanding anything contained in these rules the Government may by notification in Official Gazette direct that any mineral may be leased out or settled by Public auction/tender in the manner prescribed in rule-52. 52(1)(i) – For the purpose of grant of quarrying lease by auction in respect of the mineral notified under rule 9A, the Collector shall notify the following particulars of the area, namely:- (a) Toposheet No. extent of the area and boundaries. (b) Name of village, Circle, Plot No. Khata No. etc. (c) The period of quarrying lease. Provided that the period of quarrying lease shall not be less than five years and extent of the 6 quarrying lease area shall not be more than 2 (two) acre. (ii) Date of auction shall be notified before period of one month from the date of auction. 25. Execution of lease.- (1) Where a mining lease is granted under rule 9 (1), or mining lease renewed under rule 22 the formal lease shall be executed within 90 days of the order sanctioning the lease and if no such lease is executed within the aforesaid period, the order sanctioning the lease shall be deemed to have been revoked, and in that event the application fee and the security deposit shall be forfeited: Provided that where the Collector is satisfied that the applicant for lease is not responsible for the delay in execution of the formal lease, he may permit the execution of the formal lease even after the expiry of the aforesaid period of 90 days. (2) The date of the commencement of the period for which a mining lease is granted shall be the date on which the mining lease deed is executed under sub- rule (1) in case mining lease is granted under rule 9(1) and the lessee shall be liable to pay rent/royalty from the date of the execution of the mining lease. (3) In the case of renewal of lease the date of commencement of the mining lease shall be the date on which the previous lease is expired and the lessee shall be liable to pay rent/royalty/cess from that date. 25A- Lease granted under rule 52 shall be executed in Form ‘D’ as contained under rule 21 of the rules. “ From a perusal of the aforesaid rules, it is evident that every mining lease except of granite has to be granted by the Collector under Rule 9(1), the said grant is irrespective of the manner in which sanction of the lease was granted whether by virtue of an application as provided under sub-Rule (2), etc. of Rule 9 and other rules or by auction in the manner laid down under Rule 52. Once the order sanctioning the lease is passed whether by application or by auction the formal lease has 7 to be granted by the Collector under Rule 9(1) by execution of a lease under Rule 25. Thus, it becomes the duty of the person in whose favour an order sanctioning the lease has been passed to ensure that the lease is executed within 90 days; otherwise the order sanctioning the lease shall be deemed to have been revoked. The proviso to rule 25 however, lays down that if the delay in execution of the formal lease is not on account of any responsibility on the part of the applicant for the lease and the Collector is satisfied in this regard then he may permit the formal lease to be executed even after expiry of 90 days period. It is thus, evident that the petitioners having been once sanctioned the lease under Rule 52, they were obliged to ensure that the formal lease agreement was executed within 90 days of the date of sanction and the same not having been done then, by virtue of the deeming fiction under Rule 25, the sanction of the lease would be treated as having been revoked. The contention of learned counsel that since the authorities have accepted the rents and royalties for the period of nearly four years hence the delay should be condoned and they should be permitted to continue, has no force in the eyes of law since by operation of the statutory rules the sanction of the mining lease had already stood revoked without any formal order being required for the said purpose; although in the order dated 1.10.2008 by the Mines Commissioner had treated the mining activities carried on by the petitioners during the intervening period as legal and valid, as otherwise the petitioners would have become liable to all the penalty etc. prescribed under the Rules for carrying on illegal mining activities. 8 So far as the proviso to Rule 25 is concerned, the same has no application in the facts of the present case since the petitioners have not been able to satisfy the revisional authority or even this Court that at any time they have approached the Collector for the execution of the formal lease deed or that they were in any way not responsible for the delay in execution of the same. In the said circumstances no benefit of the said proviso can enure to them for the sole reason that they had continued depositing the rent and royalties which were accepted by the mining authorities. On account of such acceptance they have already been granted the protection from legal consequences by the impugned order dated 1.10.2008 of the Mines Commissioner and they cannot be considered as entitled to any further benefit on the said ground. Thus, in view of the aforesaid discussions, there does not appear to be any merit in the writ application and it is accordingly dismissed. S. Pandey (Ramesh Kumar Datta, J.)