DATE OF JUDGEMENT:
22ND December 2020
The Chief Justice Mr.Mohammad Rafiqand Justice Biswanath Rath
M/S KJS Ahluwalia ……………(Petitioner)
State Of Odisha & Others …………….(Respondent
- Whether without considering any of the arguments of the petitioners, dismissing the representation of petitioners is not maintainable?
- Whether the State Authorities without deciding on such representation can invoke the Provision of Rule 12(1)(hh)?
- Eight writ petitions have been filed by the ex-lessees involving eight different mining establishments whose leases had came to end on 31.3.2020, under statutory prescription contained in Section 8A(6) Of the Mines and Minerals(Development and Regulation)Act,1957, in short, the MMDR Act.
- The petitioners defied the identical orders passed by the Government of Odisha, Steel and Mines Department dated 1.10.2020 which issued an invocation Rule of 12(1)(hh) under the Rules of 2016.
- Writ Petition (Civil) NO.26973 of 2020 has been filed by M/s. KJS Ahluwalia and the intervener- M/s. JSW Steels Ltd. is the new lessee after the expiry of the lease of the petitioners by MMDR ACT.
- The said petitioner, in this case, had challenged the order of the department of Govt. of Odisha, dated 09.10.2020 vide, which issued on invocation of Rule 12(1)(hh) under the Rules of 2016.
- In their representation, they have sought permission for extension of time to transport balance minerals, plants, machinery, etc. which were lying on the leasehold area.
- The representation of the petitioner has been rejected without consideration and a mechanical order was passed on 09.10.2020, after the opposite party had already invoked Rule12(1)(hh).
Mines and Minerals(Development and Regulation)Act,1957
Section 8A(6): Period of a grant of a mining lease for minerals other than coal, lignite, and atomic minerals.
Notwithstanding anything contained in sub-section (2),(3), and sub-section (4),the period of lease granted before the commencement of MMDR ACT,2015,where the mineral is used for the captive purpose, shall be extended and deemed to have been extended up to the period ending on 31st March2020 with effect from the date of expiry of the period of renewal last made or till the completion of renewal period, if any, or a period of fifty years from the grant of such lease, whichever is later, subject to the condition that all the terms and conditions of the lease have been complied with.
Minerals (other than Atomic and Hydrocarbon Energy Minerals) Concession Rules,2016(for short the Rules of 2016)
In the event of failure of the lessee to comply with any terms and conditions of the Act or Rules made thereunder or in the mining lease,which is considered by the Government to arise from a force majure event, the period of delay on account of such force majure event has to be added to the period fixed under the rules of mining lease.
ANALYSIS OF THE JUDGEMENT
- Due to the lackadaisical approach of the State functionaries, the parties were not latches but suffered due to delay in attending of their complainants by the competent authority.
- The petitioner successfully demonstrated that the authority has arbitrarily invoked Rule 12(1)(HH) at a stage when their representations raising various arguments were still pending and later those representations too were rejected describing them as not maintainable.
- The petitioner contended that on the date of expiry of the lease, the petitioner had significantly excavated all the stocked materials and plant and other machinery from the mineral block.
- He was granted six months after the expiry but despite the best efforts, it could not be fully removed due to severe restrictions by the State and Central Government, constriction, and hindrances on account of the COVID-19 pandemic and subsequent lockdown.
- The State Government has failed to duly consider the situation and foreclose the right of the petitioner to reclaim the stocked materials and invoked the rule without adjudicating any representation of the petitioner.
- The Court upheld the petitioner's contention and stated that the representation of the petition could not have been rejected as not maintainable, which attracts the force majure Clause Rule12(1)(ff).
- To take the stand of judicial review, the Court mentioned that the authorities without assigning any reason passed the order and this is a gross abuse of powers andis procedural impropriety, which reflects the total non-application of mind.
- The Court has held that the orders passed on the said date dated are impugned and liable to be declared bad in the eye of law and deserve to be set aside. Therefore,it was directed to set aside the dated order and remand the matters to the Principal Secretary, Steel and Mines Department for the representation of the petitioner afresh.
The Court finds that is opposed to the law enunciated by the Supreme Court judgement. Petitioners would be at liberty to place all such materials, which they have relied upon before this Court and may put any other material which to rely on, to substantiate their case, within seven days, and the judgment provided the opportunity of hearing to the petitioners within 45days. It is directed that till the disposal of the representations afresh by the competent authority, concerning minerals excavated by the old-lessees during the subsistence of their lease period, the plants and machinery, etc. lying in the respective leasehold areas, shall be maintained by the parties, which shall abide by the outcome of their representations to be decided by the competent authority a fresh.