HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 356/2017
Ultratech Cement Limited, Unit: Kotputli Cement Works Village
Mohanpura Tehsil, Kotputli District Jaipur, Through its Joint
Executive President Shri Chandra Shekhar Pandey.
----Petitioner
Versus
1. Union Of India Through Secretary, Ministry Of Mines,
Department Of Mines, Shastri Bhawan, Dr. Rajendra
Prasad Marg, New Delhi- 110001.
2. The State Of Rajasthan Through The Principal Secretary
Mines, Department Of Mines And Petroleum, Government
Of Rajasthan, Udaipur.
3. The Director, Department Of Mines And Geology, Udaipur.
----Respondents
For Petitioner(s) : Mr. Kamlakar Sharma, Sr. Adv. with Ms. Alankrita Sharma &
Mr.Madhusudan Singh Rajpurohit
For Respondent(s) : Ms. Sheetal Mirdha, AAG with Mr.Prateek Singh
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment / Order
RESERVED ON 16.08.2021
PRONOUNCED ON 01/09/2021
1. Brief facts which require to be noticed are that on 05.06.2007, the Mines Department notified an area of 318.78 hectares under Rule 59(1) of the Mineral Concession Rules, 1960 free for grant of mining lease and invited applications for establishment of Cement Plant with the capacity of 1 MTPA. The petitioner-company had applied for the same and a Letter of Intent ("LoI") was granted to the petitioner-company on 10.10.2007 wherein four conditions were laid down. Extension of LoI was granted on 11.03.2008 and the Forest Department issued NOC on 11.08.2008. Another extension for LoI was granted on 08.08.2008 and the mining plan was approved on 22.12.2008 and an environmental clearance was given on 06.05.2010 after extension of LoI was given upto 10.10.2007. Thus, four conditions, which required, environmental clearance, permission of mining plan, statement of khatedari land and submission of NOC from the Forest Department as required under the LoI, were complied with and a compliance letter was submitted by the petitioner-company on 07.07.2010. The Mining Engineer accordingly recommended for issuing mining lease. Another letter of extension of LoI was issued on 03.12.2010 whereby three additional conditions were laid down in LoI i.e. increasing capacity of plant from 3 MT to 4 MT, keenness money of Rs.2.2. crore per MT to be deposited and the stamp duty towards change of name of the demerger of the cement business of Grasim Industries Ltd. to M/s Samraddhi Cement Ltd. and amalgamation of M/s Samraddhi Cement Ltd. to M/s. UltraTech Cement Ltd., was to be deposited. The petitioner-company initially applied as Grasim Industries Ltd.
2. It is stated that the petitioner-company challenged the levy of stamp duty before the Principal Seat at Jodhpur and an interim order was passed on 25.09.2013 and by the Jaipur Bench on 06.01.2014.
3. An affidavit was also filed before the State Government pointing out that issue relating to stamp duty on account of demerger was under challenge before the High Court and the company would undertake to pay stamp duty as per final decision. While case of the petitioner-company was pending, the State Government floated an Amnesty Scheme. It is stated that the petitioner-company deposited the stamp duty with regard to demerger and amalgamation and the writ petitions were accordingly withdrawn. A letter of compliance was thereafter submitted, however, the mining lease was not continued on the premise that in the mining lease area, about 1.38 hectares of "charagah land" was spread all over the mining lease area to which the assurance was given by the petitioner-company that they will not undertake any mining operations without prior permission from the authority. The petitioner-company has also placed on record affidavit in this regard.
4. Learned counsel for the petitioner-company submits that in view of all the compliances having been made, the respondents were required to issue mining lease but they have not issued mining lease and after cut-off date i.e. 11.01.2017 as provided under Section 10A(2)(c) of the Mines and Minerals (Development and Regulation) Act, 1957, the State Government may reject the application of the petitioner-company.
5. Learned counsel submits that as per amendment made under sub-section (2) of Section 10A of the MMDR Act, the Central Government has communicated prior approval and the LoI has been issued. The mining lease was required to be granted subject to the conditions laid down in the LoI and within two years the lease should have been issued. Since the petitioner-company had completed all the requisite conditions, there was no occasion for the respondents not to have released the LoI. The rights of the parties stood crystalised as on the date the petitioner-company approached the court as held in the case of Beg Raj Singh Vs. State of UP & Ors., reported in (2003) 1 SCC 726 and in State of West Bengal & Ors. Vs. Mandira Chatterjee, reported in (2012) 13 SCC 582.
6. Learned counsel submits that only objection taken by the respondents for not executing the mining lease is on account of total 1.38 hectares of "charagah land" situated in different small areas out of total 318.78 hectares of land. The issue of "charagah land" was never a pre-condition for LoI. However, it is submitted that in the case of M/s. Wonder Cement Ltd. Vs. State of Rajasthan & Ors. (SB Civil Writ Petition No.126/2017) as well as in the case of M/s. Shree Cement Ltd. Vs. State of Rajasthan & Ors. (SB Civil Writ Petition No.128/2017), this Court has allowed issuing of mining lease upon an undertaking that the said land falling in "charagah" shall not be used for mining purposes.
7. Learned counsel has taken this Court to the affidavit filed by the petitioner-company to submit that the petitioner-company too has given an undertaking that they would not conduct mining operations in "charagah land".
8. Learned counsel submits that even as per amended Rule 7 of the Rajasthan Tenancy (Government) Rules, 1955, the Collector may, in consultation with Panchayat, set apart any land in lieu of pasture land which may be used for any non-agricultural or agricultural purposes.
9. Learned counsel submits that even as per circulars issued by the respondents on 25.04.2011 and 17.09.2013, the mining lease is not to be granted in the land recorded as "charagah land". However, as the "charagah land" is spread over entire notified area, the petitioner-company themselves undertook not to conduct mining operations in the next separate "charagah land" which may fall within the mining lease.
10. Learned counsel also submits that circulars would not in any manner affect the Rule 7A and in the facts of the case, therefore the mining lease ought to be issued to the petitioner-company taking into consideration that in similar matters of M/s. Shree Cement Ltd. Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.128/2017), decided by this court on 26.09.2017 and affirmed by the Division Bench, the mining lease was granted for the area where "charagah land" was also existing with the condition that mining operations shall not be conducted in the "charagah land" area.
11. Learned counsel submits that even otherwise the land has to be set apart from mining which is a pasture land and the mining plan has to be prepared accordingly. The other objections raised by the respondents relating to change of name is also not acceptable as the petitioner-company complied with the provisions of the Mineral Concession Rules, 1960 and the change of name was never a pre-condition for grant of LoI.
12. Learned counsel submits that no distinction can be drawn in between cases of the petitioner-company and those of M/s. Wonder Cement Ltd. Vs. State of Rajasthan & Ors., (SB Civil Writ Petition No.126/2017), decided by this court on 23.08.2017 and M/s. Shree Cement Ltd. Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.128/2017), decided by this court on 26.09.2017
13. Learned counsel points out that out of total mining lease area upto 255 hectares of Wonder Cement Ltd., 40.62 hectares was "charagah land".
14. Learned counsel submits that the petitioner-company cannot be denied issuance of mining lease in view of aforesaid two judgments.
15. Per contra, learned counsel appearing for the respondents has pointed out that a specific affidavit has to be given by the petitioner-company that they will not conduct mining operations in 1.38 hectares of "charagah land" which is situated at different places. However, such an affidavit has not been given and it is stated in the affidavit that mining operations shall not be conducted in "charagah land" till permission is given by the concerned authority.
16. Learned counsel for the respondent/s submits that in view of judgment passed by the Hon'ble Supreme Court in Jagpal Singh & Ors. Vs. State of Punjab & Ors., reported in (2011) 11 SCC 396, the LoI for "charagah land" cannot be continued.
17. Learned counsel further submits that the delay is being caused also at the end of the petitioner-company as it did not deposit the stamp duty as required under the amended LoI for the merger and amalgamation of the original allottee, M/s. Grasim Cement to M/s. UltraTech Cement ultimately. However, as the petitioner-company has now deposited the said stamp duty, objection in this regard would not come in way.
18. I have considered the submissions.
19. In D.B. Special Appeal (Writ) No.301/2021, "The State of Rajasthan & Ors. Vs. Ojaswi Marbles Ltd. & Ors.", decide by the Principal Seat at Jodhpur on 08.07.2021, the Division Bench noticed submissions of learned Additional Advocate General that amendment made under the MMDR Act vide Notification dated 20.03.2021 would not cover the cases where applications have been moved much earlier and LoI having been issued much earlier and observed as under:
"After hearing learned counsel for the respective parties and taking into consideration the submissions advanced by the learned counsel representing the parties, we are of the considered view that the interim orders passed by this Court on 09.01.2017 are absolutely in order and in consonance with law. We find no justification in entertaining any challenge thereto and we also affirm the subsequent order dated 18.03.2021 by which the application seeking vacation of the interim order dated 09.01.2017 has come to be rejected.
We make it clear that the State shall execute the mining lease in favour of the private respondent (writ petitioner) within a period of 15 days from today. The mining lease shall reflect that it shall be given effect to on or before 11.01.2017 (the cut-off date). By way of mention, we may indicate here that grant of mining lease by itself will not enable the respondent (writ petitioner) to commence mining operations without complying with the conditions mentioned in the Letter of Intent as well as the conditions imposed by the Union of India in its approval and FC clearance granted to the private respondent (writ petitioner) under Section 2(iii) of the Forest (Conservation) Act, 1980."
20. In the case of M/s. Wonder Cement Limited (supra), the "charagah land" ad-measuring 40.62 hectares for the total notified mining area of 255 hectares, the court after setting apart the said 40.62 hectares of "charagah land" allowed mining lease to be granted to M/s. Wonder Cement Ltd. with the direction to issue the same within a period of two months vide judgment dated 23.08.2017. Similarly, this Court in the case of M/s. Shree Cement Ltd. (supra) also examined the question at length in regard to issuance of mining lease in charagah land and after taking into consideration the provisions of Rule 7A, as amended and also taking into consideration the undertaking for not conducting mining operations in charagah land, allowed the writ petition with the direction to grant mining lease, the case of the petitioner-company cannot be said to be distinguishable from the two cases referred to above and therefore, upon submission of undertaking for not conducting any mining activities in the various charagah lands falling in the total area of 318.78 hectares, it would be apposite to direct the respondents to grant mining lease in terms of LoI issued and taking into consideration that other conditions stand fulfilled.
21. In the case of Shree Cement Ltd. (supra), this Court after taking into consideration the law as laid down by the Hon'ble Supreme Court in the case of Beg Raj Singh (supra) as well as Rule 7A and after considering the records relating to grant of mining lease, observed in Para 37 as under:
"37. It is also noticed from the records that so far as M/s Wonder Cements Limited is concerned, the mining lease had already been granted in terms of the order passed by this Court in their favour."
22. This Court also notices that petitioner-company has already deposited the stamp duty under the Amnesty Scheme and has withdrawn the writ petitions pending before the court.
23. The original applicant for grant of mining lease was M/s. Grasim Industries Ltd. as per record as merged with M/s. Samridhi Cement Ltd. and the merger was sanctioned by Madhya Pradesh High Court and Gujarat High Court under the scheme of amalgamation of M/s. Samridhi Cement Ltd. with M/s. UltraTech Cement Ltd. as per orders of the Bombay High Court and Gujarat High Court. It has been argued by learned counsel for the respondents that LoI cannot be treated as an asset and therefore, the same cannot be treated as transferred asset with amalgamated company.
24. Rule 62 of the Mineral Concession Rules, 1960 provides as under:
"62. Change of name, nationality, etc., to be intimated. - (1) An applicant for, or the holder of, a [reconnaissance permit, a prospecting license or a mining lease] shall intimate to the State Government within sixty days any change that may take place in his name, nationality or other particulars mentioned in the relevant Forms.
(2) If the holder of a reconnaissance permit or a prospecting license or a mining lease fails, without sufficient cause, to furnish the information referred to in sub-rule (1), the State Government may determine the reconnaissance permit or prospecting license or mining lease, as the case may be:
Provided that no such order shall be made without giving the permit holder or the licensee or the lessee, as the case may be, a reasonable opportunity of stating the case."
25. The petitioner-company consequent upon the orders of Gujarat High Court, MP High Court and Bombay High Court, has admittedly informed the State Government regarding name of company being changed as per Rule 62 of the Mineral Concession Rules, 1960. The order passed by the court of amalgamation specifically mentions of LoI as an asset, to be transferred as right of title interest and investments vests with M/s. UltraTech Cement Ltd. The State Government has already accepted the stamp duty for the purpose of amalgamation and compliance in this regard has already been submitted by the petitioner-company. The objection therefore raised by learned counsel for the respondents though not a pre-condition of LoI, is to be rejected.
26. In view of above, the writ petition is allowed. The respondents are directed to execute the mining lease in favour of the petitioner-company and its possession be also handed over to the petitioner-company. Time period for taking over possession shall not be considered for computation of time period for commencement of production and dispatch as required under Section 4A of the Mines and Minerals (Development and Regulation) Amendment Act, 2021. The prayer in this regard made in the court is accepted. The compliance shall be made within a period of one month.
27. All pending applications also stand disposed of.
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