Court No. - 40
Case :- WRIT - C No. - 36309 of 2018
Petitioner :- Muzibur Rahman
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Satyendra Singh,Anil Kumar Bajpai
Counsel for Respondent :- C.S.C.
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Ajit Kumar,J.
Heard Sri Anil Kumar Bajpai, learned counsel for the petitioner and the learned Standing Counsel.
Sri Bajpai, learned counsel for the petitioner has urged that the petitioner seeks the review of the judgment dated 22nd November, 2017 rendered by a coordinate Bench in the case of Dharmendra Kumar Vs. State of U.P. & 2 Others in Writ Petition No. 49399 of 2017 alongwith the decision in the case of Santosh Singh Vs. State of U.P. & 2 Others in Writ Petition No. 51753 of 2017 decided on 22.11.2017 which is extracted hereinunder:-
“Heard Mr. Devbrat Mukherjee, learned counsel for the petitioner in WRIT-C No. 49399 of 2017, Mr. Adarsh Bhushan, learned counsel for the petitioner in Writ-C No. 51753 of 2017 and Mr. G. C. Saxena, learned Standing Counsel for the respondents- State.
In these two writ petitions, the question raised is common and it is raised against the similar facts and circumstances. By the impugned notice-cum-demand orders dated 18 August 2017 in Writ-C No. 49399 of 2017 and 26 September 2017 in Writ-C No. 51753 of 2017, the respondents have raised 10% demand of the royalty paid by them, with effect from 15 January 2015, towards their contribution to the District Mineral Foundation Trust, from both the petitioners.
Counsel appearing for the petitioners, at the outset, invited our attention to the judgment of the Supreme Court in Federation of Indian Mineral Industries & Ors. Vs. Union of India (UOI) & Ors., MANU/SC/1316/2017, and submitted that the respondents cannot direct the petitioners to contribute 10 percent of the royalty paid by them, with effect from 12 January 2015 and they are, at the most, obliged to recover the contribution with effect from 17 September 2015 on which date the Central Government vide notification dated 17 September 2015 prescribed the rate at which contributions are required to be made to the District Mineral Foundation Trust. We have perused the judgment of the Supreme Court and we find that the following questions were framed by the Supreme Court:
"Whether the DMFs could be established with effect from 12th January, 2015? Secondly, whether contributions to the DMFs were required to be made by the Petitioners at the rate mentioned in both sets of Contribution Rules with effect from 12th January, 2015? The validity of the notifications was challenged or was under challenge to this extent depending on their interpretation and their impact and effect."
The conclusions drawn by the Supreme Court, while addressing the questions, find place in paragraph 46 of the judgment, which reads thus:
"46. Having considered the issues raised by the Petitioners and by the learned Additional Solicitor General in different perspectives, we hold:
(i) Merely because the DMFs have been established or are deemed to have been established from a date prior to the issuance of the relevant notifications does not make their operation retrospective. (ii) In any event, the establishment of the DMFs (assuming the establishment is retrospective) from 12th January, 2015 does not prejudicially affect any holder of a mining lease or a prospecting licence-cum-mining lease.
(iii) In view of the failure of the Central Government to prescribe the rate on 12th January, 2015 at which contributions are required to be made to the DMF, the contributions to the DMF cannot be insisted upon with effect from 12th January, 2015. Fixing the maximum rate of contribution to the DMF is insufficient compliance with the law laid down by the Constitution Bench in Vatika. (iv) Contributions to the DMF are required to be made by the holder of a mining lease or a prospecting licence-cum-mining lease in the case of minerals other than coal, lignite and sand for stowing with effect from 17th September, 2015 when the rates were prescribed by the Central Government. (v) Contributions to the DMF are required to be made by the holder of a mining lease or a prospecting licence-cum-mining lease in the case of coal, lignite and sand for stowing with effect from 20th October, 2015 when the rates were prescribed by the Central Government or with effect from the date on which the DMF was established by the State Government by a notification, whichever is later. (vi) The notification dated 31st August, 2016 issued by the Central Government is invalid and is struck down being ultra vires the Rule making power of the Central Government under the MMDR Act."
After having perused the judgment with the assistance of learned counsel for the parties, we are also satisfied that the respondents cannot direct the petitioners to contribute 10 percent of the royalty with effect from 12 January 2015 and it is open to them to collect the contribution with effect from 17 September 2015. Counsel for the parties have not disputed their liability to make the payment with effect from 17 September 2015. Counsel for the respondents State, fairly states that in view of the Supreme Court judgment, it would not be possible for them to collect the petitioners' contribution with effect from 12 January 2015 and in view thereof, it may be left open to them to raise a fresh demand with effect from 17 September 2015. His statement is recorded and accepted. In view thereof, we dispose of these writ petitions by the following order:
It would be open to the respondents to raise a fresh demand under the provisions of the Mines and Minerals (Regulation and Development) Act, 1957, read with notification dated 17 September 2015, issued by the Ministry of Mines, Government of India, with effect from 17 September 2015, as expeditiously as possible and preferably within a period of six weeks from today. It is needless to mention that the petitioners shall deposit their contribution as per the fresh demand within a period of six weeks therefrom, without prejudice to their rights and contentions if, for any reason, they feel aggrieved by the quantum of the amount raised. It is open for them to take appropriate remedy, if they so desire and are advised, against the demand.
It is needless to mention that the impugned notice-cum-demand orders render ineffective.”
In addition to the above, Sri Bajpai contends that not only the said judgment proceeds on an erroneous assumption of law, but even otherwise, the petitioner has been granted a mining lease for excavation of building material (Khanda, Gitti & Boulder) that are minor minerals. In such circumstances, the argument advanced is that the provisions of District Mineral Foundation would not apply as the same according to the Apex Court judgment in the case of Federation of Indian Mineral Industries & Others... Vs. Union of India & Another 2017 (16) SCC 186 decided on 13.10.2017 would not apply to minor minerals. A challenge has also been raised to the demand raised from the petitioner under the impugned notices.
Having considered the submissions raised, the issue as to whether a different view can be taken treating this petition to be a review petition may be covered by the decision in the case of Shiv Deo Singh Vs. State of Punjab reported in AIR 1963 SC 1909 as relied on by the learned counsel for the petitioner, but apart from that we see no reason to take a different view in the factual background of the case, inasmuch as, this issue has been dealt with by us in two judgments in the case of Govind Saran Gupta Vs. State of U.P & 2 Others in Writ Petition No. 35872 of 2018 decided on 29.10.2018 and Alim Mohammad Khan Vs. State of U.P. & Another in Writ Petition No. 36037 of 2018 decided on 30.10.2018 where we have discussed the issue in detail.
Consequently, for all the reasons recorded therein, we do not find any good ground to take a different view so as to find an error in the judgment for which review is sought keeping in view the law laid down by the Apex Court in the case of Federation of Indian Mineral Industries & Others (supra) which has not drawn any distinction for the applicability of contribution under the District Mineral Foundation Scheme between a major and a minor mineral except for the distinction referred to in the judgment aforesaid. The writ petition is accordingly consigned to records.
Order Date :- 31.10.2018 S.Chaurasia