IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18216 of 2009 KRISHNA MINERAL AGENCY through its proprietor, Sushil Kumar Bajaj, s/o Late Gokul Chandra Bajaj, Resident of Sarwan Bazar, P.S.- Kotwali, Distt.-Munger. . . . . . . Petitioner. Versus 1. THE STATE OF BIHAR through the Principal Secretary, Department of Mines and Geology, Government of Bihar, Patna. 2. The Principal Secretary, Department of Mines and Geology, Government of Bihar, Patna. 3. The Revisional Authority-Joint Secretary-cum-Chairman, Mines Tribunal Department, Ministry of Mines, Government of India, New Delhi. 4. The Special Secretary, Department of Mines and Geology, Government of Bihar, Patna. 5. The Director, Mines, Government of Bihar, Patna. 6. The Deputy Secretary, Department of Mines and Geology, Government of Bihar, Patna. 7. The Deputy Director, Mines, Bhagalpur. 8. The Collector, Munger. 9. The District Assistant Mining Officer, Munger. 10. Neha Minerals (P) Ltd, a private limited company incorporated under the provisions of the Companies Act, 1956 having its registered office at Narayan Das Road, P.S.-Kotwali, District- Munger. . . . . . Respondents. For the Petitioner : Mr. A.K. Kesari, Advocate For the State : Mr. V.M.K. Sinha, Advocate For the Union of India: Mr. Gopesh Kumar, C.G.C (For Res. No.3) For Respondent No.10: M/s Mrigank Mauli Vinay Mistry, Advocates ----------- 4/ 10.03.2010 Heard learned counsel for the petitioner and the Respondents. In the instant writ application, the petitioner Krishna Mineral Agency through its proprietor Sushil Kumar Bajaj has challenged the order dated 15.07.2009 passed by learned Mines Tribunal, New Delhi in R.C. File no. 05(02)/2008-RC-I, whereby it has set aside the order dated 21.02.2008, passed by the State Government, rejecting the claim of respondent no.10. The Tribunal further directed the Government to reconsider the matter again in consultation with Indian Bureau of Mines. The petitioner’s case is that he had applied for grant of lease - 2 - in 47 acres of land including the present disputed area, measuring 2.66 acres of land appertaining to plot no. 537, 538, 539, 540, 541, 369 and 371 in Mauza Shankarpur in the town and district Munger, over which respondent no.10 is making his claim. However, the Mining Officer informed in 1997 that only 23.90 acres of land are available for mining purpose. According to petitioner, one Darshan applied for grant of lease for an area of 2.66 acres. The State Government on 06.09.1983 rejected his application on the ground that proposed site is adjacent to the road for going to Micro-wave station and Dargah. Shree Darshan preferred revision application and writ up to this Court against Memo no. 4996, dated 06.09.1983 of State Government, which was rejected up to High Court. He submits that Shree Darshan in 1991 formed a private limited company in the name and style of M/S Neha Minerals (P) Ltd, and became its Managing Director. Shri Darshan applied for grant of lease for the aforesaid 2.66 acres of land in the name of M/S Neha Minerals (P) Limited. The Director, Department of Mines, Government of Bihar, wrote a letter to Respondent no.10 that the lease in question can be granted to him, subject to fulfilling three conditions mentioned therein. The petitioner being aggrieved by aforesaid order, filed writ application, which was permitted to withdrawn to challenge the final order before the appropriate forum. The petitioner in paragraph 15 states that in the meanwhile the Cabinet approved the proposal of the respondent and granted him lease in question and the same has been communicated by the Deputy Secretary, Department of Mines to him by letter no. 4947 - 3 - dated23.12.1999. The respondent no. 10 was further directed to submit mining plan duly approved by Indian Bureau of Mines (hereinafter referred to as IBM) within six months and thereafter approval order for the lease will be issued. It is not in dispute that the respondent no. 10 submitted mining plan duly approved by the IBM. The petitioner filed a revision application before the Central Government under Section 30 of the Mines and Minerals (Regulation and Department) Act, 1957, being revision application no. 5(2)/2000/RC-I. The Central Tribunal while upholding the impugned order regarding approving Mining lease to respondent-10 further directed the State Government to dispose of all pending applications including that of the petitioner over the same area, after giving opportunity of being heard. The revision application filed by the petitioner was dismissed with the aforesaid observation. A copy of order dated 18.07.2001 passed by Tribunal is annexed as Annexure-6 to this application. According to the petitioner, pursuant to order dated 18.07.2001 notices were issued. In the mean time, the Collector Munger also vide his letter no.886 dated 17.08.2002 reported to Special Secretary, Department of Mines and Geology, Government of Bihar that Divisional Engineer, Microwave, Bhagalpur had requested the department that 50 metres space may be left in between mines and approach road. The Collector further reported vide letter dated 07.11.2002 that in the opinion of the authorities of the Microwave after giving 50 metres, only 0.27 acres of land would remain to be settled. - 4 - The Government of Bihar, Department of Mines and Geology rejected the claim of respondent no.10. The respondent no.10 challenged the order dated 29.10.2003 before the Central Tribunal, which vide order dated 02.08.2004 set aside the order of the State Government dated 29.10.2003 and directed it reconsider the issue of grant of lease of the concerned mines after giving an opportunity to the petitioner also. Pursuant to the aforesaid order of Central Tribunal, dated 02.08.2004, the State authority heard the matter afresh and vide Memo no. 392, dated 21.02.2008 rejected the claim of respondent no.10 on the ground that the area applied for does not fulfill the conditions laid down in Rule 22 (D) of M.C. Rules, 1960. The aforesaid order was communicated vide Memo no. 542 dated 12.03.2008 by Additional Secretary of the Government, contained in Annexure-14. The respondent no.10 moved revision application before the Tribunal in R.C. file no. 05(02)/2008/ RC-I. The Mines Tribunal allowed the revision of respondent and set aside the impugned order dated 21.02.2008, passed by the State Government directing it to consider the matter again in consultation with I.B.M. The petitioner has challenged the impugned order on the ground that the mining lease cannot be granted less than 4 hectares in view of amendment in Rule 22 (D) (c) inserted by G.S.R. No. 329E dated 10.04.2003 in M.C.R., 1960. Furthermore, in view of rule 22 (D) (a) of the Act, mining lease cannot be granted for a land less than one hectare. Moreover, petitioner is the first applicant in respect of which mining lease has been allowed by the Central Government in favour of respondent no.-10. Finally the Collector, Munger vide letter - 5 - no. 1157 dated 07.11.2002 has reported to Special Secretary, Department of Mines and Geology that as per the opinion of the authorities of the Microwave, 50 metres space be left out for the safety of approach road, whereafter only 0.27 acres of land would remain available, which technically, cannot be settled. Counsel for the respondent no.10 has appeared suo moto by filing Vakalatnama. He states that petitioner has no locus to challenge the impugned order dated 15.07.2009, passed in Revisional Application file no. 05(02)/2008-RC-I, by Central Tribunal setting aside the order dated 21.02.2008, of the State Government, rejecting his claim. He submits that earlier the State Government in its Cabinet has approved the proposal of grant of lease to it and the same was communicated by the Deputy Secretary, Department of Mines by letter no. 4947 dated 23.12.1999. He submits that as per the direction of the State Government, the respondent had submitted mining plan approved by Indian Bureau of Mines and only the formality of executing lease remained to be done. He submits that petitioner preferred revision application against the order before the Central Tribunal vide Revision application file no. 5(02)/2000/RC-I, which was dismissed. In the aforesaid order (Annexure-6), the Central Tribunal found that petitioner was not the first applicant for the land in question. Learned counsel submits that petitioner has not challenged the order dated 18.07.2001, passed by the Central Tribunal. He further submits that now the petitioner would have no locus to challenge the order dated 15.07.2009. He further submits that the Rule 22 (D) has been incorporated vide amendment on 10.04.2003, whereas the Bihar - 6 - Government has approved grant of lease over 2.66 acres of land way back in the year, 1999. It would appear from the pleadings and submissions of the counsel for the parties, that the State Cabinet approved grant of lease in favour of respondent no.10, which was communicated by Deputy Secretary, Department of Mines vide letter no. 4947 dated 23.12.1999 with condition to submit a mining plan duly approved by Indian Bureau of Mines (I.B.M.). The respondent no.10 submitted the mining plan duly approved by I.B.M.. The petitioner challenged the order of the State Government dated 23.12.1999 being 05(02)/2000/RC-I in revision. The Central Tribunal rejected the challenge to the impugned order by the petitioner and directed the State Government to dispose of all pending applications including that of the petitioner over the same area. It further held that the respondent no.10 had even the consent of the Raiyats for using their land for the purposes of mining. The Central Tribunal in order dated 18.07.2001 had further held that the petitioner agreed not to use explosive in mining work and would compensate if the common road is affected. The aforesaid order of the State Government was set aside by the Central Government holding that petitioner was not the first applicant. However, the State Government by order dated 29.10.2003 rejected the claim of the petitioner for grant of Mining lease, which was set aside by the Central Tribunal on 02.08.2004 (Annexure-13) in Revision Application File no. 5/(3)/2003-RC-I filed by respondent no.10 directing the State Government to reconsider the issue of grant of lease after giving opportunity to the petitioner as well. Thereafter, the - 7 - State Government vide order dated 07.07.2005 reinstated the Mining Lease. It would appear from paragraph 3 (j)(iii) of the impugned order dated 15.07.2009 that the State Government in its order dated 07.07.2005 reinstated the mining lease and by order dated 05.11.2007 accepted that the minimum requirement as per rule 22 (D)(a) is fulfilled. However, the State Government again by order dated 21.02.2008 communicated through Memo no. 524 dated 12.03.2008, as contained in Annexure-14, rejected the application of the respondent no.10 on the ground that the latter does not fulfill the conditions of minimum requirement of land under Section 22(D) of Mineral Concession Rules inserted in the in the year, 2003, which is being reproduced below: “Rule 22-D. Minimum size of the mining lease.- Minimum area for grant of mining lease shall not be less than- (a) One hectare, in respect of small deposits (not fragmented portions of larger ones), shallow in nature, isolated and not exceeding more than 200 metres in strike length. These deposits are small by virtue of either origin or mode of emplacement or dislocation due to geological disturbances. Small deposits shall also include float deposits (transported) formed due to mechanical weathering and deposition, alluvial or eluvial placers (buried or otherwise), which generally have peculiar configurations excepting beach sands or placers; (b) Two hectares, in respect of beach sands or placers. Beach sands or placers are mono or multi-mineral concentrations, including the dunes occurring on and off the coastal shore line. These deposits are the - 8 - products of ebb and flow of tides, waves and inshore currents, and at places semi-consolidated to consolidated in nature; © Four hectares, in respect of all mineral deposits other than those specified under clauses (a) and (b).” Petitioner has heavily relied upon the aforesaid provisions. The issue is whether the Rule 22 (D) which has been inserted on 10.04.2003 by 2003 amendment would also be applicable to such approval of lease, which has been granted in favour of the respondent no.-10 by the Bihar Government in 1999. It would appear from own pleadings of the petitioner that the Cabinet had approved the proposal of respondent no.10 and granted him lease in question and the same has been communicated by the Deputy Secretary, Department of Mines to him by letter no. 4947 dated 23.12.1999 with a direction to submit mining plan duly approved by I.B.M. within six months, which was duly complied with. It would further appear from the impugned order dated 15.07.2009 passed by the Central Tribunal that the State Government had taken a decision to grant Mining Lease on an area of 2.66 acres to the applicant in December, 1999 and had also communicated the decision to the applicant (respondent no.10). Furthermore, the challenge by the petitioner to grant of lease in favour of respondent no.10 was also rejected in final order dated 18.07.2001, passed by the Central Tribunal. The requirement of the minimum area for Mining lease under Rule 22 (D) of M.C. Rules, 1960 was introduced in the year, 2003. There is nothing in the provision, which says that the same has - 9 - been made applicable with retrospective effect. It is not a case where that there was no decision of grant of mining lease prior to 10.04.2003, the date of insertion of Rule 22 (D) rather the State Cabinet had approved to grant lease to the petitioner in 1999 itself and only certain formalities including execution of lease etc. was to be completed. Thus, in my view, Rule 22 (D) incorporated on 10.04.2003 would neither cover nor would be applicable to such lease, which the Government has decided to grant way back in the year, 1999 in favour of respondent no.-10. The Central Tribunal both vide its final order dated 18.07.2001, as contained in annexure-6 and final order dated 15.07.2009, as contained in Annexure-18 had held that the respondent no.10 fulfills Clause 22 (D)(a). The Central Tribunal both vide Annexures-6 and 18 had held that the petitioner was not the first applicant for the lease land in question particularly by its detailed order dated 18.07.2001, contained in Annexure-6 and also reiterated in the impugned order dated 15.07.2009, contained in Annexure-18. It would appear that the State Government has rejected the claim of respondent no.10 mainly on the ground that it is hit by Rule 22 (D) of M.C.R., 1960, which admittedly came into effect on 10.04.2003. I have already held above that Rule 22(D) would not be applicable in case of respondent no.10, as Government had approved the proposal to grant lease in its favour in the year, 1999. As petitioner has no case on merit, this court is not going into the issue whether petitioner has any locus to challenge the impugned order or not. The application is, thus, dismissed and the impugned order dated 15.07.2009 (Annexure-18) passed in Revision Application file - 10 - no. 05(02)/2008/RC-I, by the Central Tribunal, setting aside the order dated 01.02.2008, passed by the State Government with direction to consider the matter again in consultation with I.B.M., is upheld. Uday/ (Samarendra Pratap Singh, J.)