Draft amendment is allowed, same shall be carried out forthwith.
Heard learned counsels for the parties. The petitioner has approached this Court with following main prayers:
"11.
(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus, a writ of certiorari or a writ in the nature of certiorari, or any other appropriate writ, order and/or direction quashing and setting aside the impugned resolution dated 19/11/2009, the Notification dated 3/3/2010 as also the circular dated 20/7/2010;
(B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus, directing the respondent nos. 2 to 4, their officers, servants, agents, to issue the triplicate pases to the lessees of Bauxite upon payment of advance royalty at the rate prescribed by the Central Government in the second schedule to the said Act;
(C) Pending the admission hearing and final disposal of this petition, Your Lordships may be pleased to
(i) direct the respondent no.4 to forbear from withholding the royalty passes to the lessees of Bauxite on the purported ground that the said lessees have not paid the royalty pursuant to the demand notices dated 30/3/2010;
(ii) stay the operation and implementation of the impugned Notification dated 3/3/2010;
(iii) direct the respondent nos. 3 and 4 to issue the royalty passes / triplicate pass books in favour of the lessees of Bauxite subject to the condition that the said lessees deposit the royalty at the rate prescribed by the Central Government in the second schedule to the said Act;
(iv) An ex-parte ad-interim relief in terms of prayer (C) above may kindly be granted."
The petitioner has also urged that this petition be treated as a petition being filed in representative capacity qua the persons enlisted in the list annexed with the petition. Broadly speaking, the challenge is in respect of issuance of notices and decision thereon which would govern the conduct of the State vis-a-vis those persons who have been enlisted in the list herein above.
Learned counsel for the petitioner has submitted that the petitioner is holding two lease licenses in respect of property under Survey No. 117 and survey No. 110 and unfortunately royalty pases are stopped in respect of both the survey numbers, whereas the prohibitory order in question is in respect of Survey No. 117 and not in respect of survey No. 110.
Respondent State has issued notices for cancellation of lease which is pending adjudication.
Learned counsel for the State raised preliminary objections qua maintainability of this petition in respect of the persons, as the petitioner cannot file petition in a representative capacity without there being proper averments and justification and pleadings. Learned counsel for the State also objected to the maintainability of the present petitioner's petition as such on account of lack of proper pleadings and petitioner's attempt to press into service the documents annexed in the earlier petition filed by Chamber of Commerce being SCA No. 16264 of 2010 for adjudicating the controversy in this petition.
The counsel for the petitioner has submitted that this petition is qua the challenge to the Government Resolution dated 19/11/2009, Notification No. 3/3/2010, and Circular dated 20/7/2010 in respect of mining operations and conduct and transfer of minerals by lessee having valid license under the provisions of 'Mines And Minerals (Regulation and Development) Act, 1957' (herein after referred to as the "Mineral Act" for brevity). Learned counsel for the petitioner has heavily relied upon the judgment of the decision rendered in LPA No. 683 of 2011 and allied matters rendered on 13/12/2011 and contended that so far as the State's power or authority qua fixing royalty irrespective of royalty fixed by agency appointed by Central Government under the Act is held to be contrary to the provisions of law and hence it is categorically observed that the State could not have raised royalty rates unilaterally on its own irrespective of the agency which is specifically appointed and given task of fixing royalty qua the minerals.
The State's action of reserving right qua revising rate as it is spelt out in resolution dated 19/11/2009, has not been recognized by the Division Bench in the above said LPA No. 683 of 2011. Para no.18 of Division Bench judgment reads thus:
"18.
On 19th November 2009, a new policy was declared by the State of Gujarat reserving right to sell bauxite only for GMDC. This was byway of channelization of the said mineral. The same has been issued without the permission of the Central Government and is ineffective as being contrary to the provisions of Section 17A of the MMDR Act and is a direct counter-blast to the Central Government order dated 4th November 2009 passed in exercise of revisional powers conferred under Sec. 30 of the MMDR Act."
Therefore so far as these two issues are concerned State's counsel has very fairly submitted that nothing could be argued justifying these two actions as the State's stand has been negatived and rejected by Division Bench whereon State has preferred Special Leave Petition No.9823 to 9825 of 2012 and SLP No. 13097 & 13098 of 2012 respectively, which are going to be listed for hearing on 11/5/2012.
Learned counsel for the petitioner contended that the petitioner is visited with three notices, namely notice dated 16/9/2010; 21/7/2010 and 30/3/2010 reproduced on page nos. 508, 509 and 510 respectively and contended that during pendency of adjudication of the order and final decision thereon, the respondent authorities for the reasons best known to them have stopped issuing royalty passes, which has resulted in to accumulation of large quantity of bauxite already excavated and lying in the premises of the petitioner which may create health hazardous.
Learned counsel for the petitioner invited this Court's attention to the order of this Court (Coram: S.R. Brahmbhatt, J) decided in case of SCA No. 2974 of 2012 dated 26/3/2012 and contended that the Court has taken prima facie view that the notices are issued alleging breach of terms & conditions of the lease and/or for recovering royalty amount and during pendency of hearing thereof without passing any order the State has started acting upon allegations in the notices as if those allegations are proved, which in turn said action amounting to rendering the notice and hearing as mere formality only. The Court has therefore restrained the State from acting upon the notices without passing any further order thereon.
Learned counsel for the petitioner has contended that the demand of royalty or difference in royalty amount contained in three notices produced on page nos. 508, 509 and 510 is based upon the illegal action of enhancing or revising royalty rates which action itself has been struck down by the Division Bench in the aforesaid decision and therefore prima facie those notices cannot be said to be validly issued notices or after decision of the Division Bench those notices would not survive, or should not have acted upon. The challenge to amended portion of Rule 6 of The Gujarat Mineral (Prevention Of Illegal Mining, Transportation And Storage) Rules, 2005 (herein after referred to as 'Mineral Rules, 2005' for brevity) can be appreciated in light of the fact that the so called breach of, so called non payment or so called default is based upon the revised rate of royalty which revision itself is frowned upon and objected to by the Division Bench in the judgment cited herein above and therefore the State's basis for denying royalty passes becomes illegal per se and therefore, the Court may pass appropriate order in this proceeding.
Learned counsel for the State has contended that the petitioner has not indicated clearly as to what is the challenge in the petition. The petitioner has relied upon documents forming part of other petition in which the Court has passed no order whatsoever, as there is a strong preliminary objection qua maintainability of the petition by Chamber of Commerce in respect of the members as those members have different facts and therefore the petition as such could not be maintained.
Learned counsel for the State has further contended that the petitioner is in fact yet to receive order on the notices issued and therefore same cannot be said to be absolutely illegal and or arbitrary.
Learned counsel for the State contended that the petitioner is under prohibitory orders by Gujarat Pollution Control Board as the Pollution Control Board has issued prohibitory orders to the petitioner for obtaining environmental clearance certificate from concerned authority before undertaking the mining activities and excavation of the area. Now, there appears to be a strong possibility that the royalty pases which are sought to be obtained are to be used or intended to be used for evacuating or transporting the mineral which is result of excavation or illegal excavation after prohibitory orders came into existence. At the same time learned counsel for the State has very fairly indicated under the instructions that in the instant case the order of prohibition came to be issued on 22/8/2006 and the concerned officer has issued royalty passes up to 30/9/2007, but that in itself cannot be said to be a subject matter of this petition and the State is not in a position to make clear stand as to whether the bauxite which is lying on the premises of the petitioner is result of illegal excavation or not.
Learned counsel for the State has fairly submitted that qua prohibitory order issued by environmental agency no notice is issued to the petitioner calling upon them to explain as to why royalty passes may not be withheld on account of prohibitory orders.
Learned counsel for the State has further submitted that when petitioner has not come out with very clear facts and petitioner has attempted to represent all those lease holders who have different set of facts & circumstances, this petition itself is required to be dismissed, as it is a case of patent vice of multiplicity of proceedings and multiplicity of cases.
Learned counsel for the State has further submitted that the earlier interim order passed by this Court in Special Civil Application No. 2974 of 2012 dated 26/3/2012 does not deal with the aspect of amended rule no.6 in which categorical empowerment is envisaged in respect of State to act in case of default in payment and or breach of terms and conditions.
At this stage under instruction one more clarification is advanced that there is no mining activities after September 2006 and passes were issued for collecting the goods lying. This passes and conditions of prohibitory orders is in question which is out of Survey No. 117 and not of survey no. 110.
This Court is of the considered view that before adverting to rival contentions, it is most expedient to set out few indisputable aspects that have emerged and those have emerged from submissions of learned counsel as well as of the record, namely;
The admitted fact is that the petitioner is granted lease licenses in respect of two mining areas which can be broadly referred to as lease qua Survey No. 110 and Survey No. 117.
Petitioner's lease is in respect of mineral called 'bauxite' which is admittedly a major mineral and is governed by provision of the Mineral Act, 1957.
The petitioner has challenged G.R. Dated 19/11/2009, Notification dated 3/3/2010 and Circular dated 20/7/2010. G.R. Dated 19/11/2009 is in respect of reserving and dealing with mineral qua major mineral and it is not disputed by any one, including counsel for State that Division Bench judgment rendered in LPA No.683 of 2011 and allied matters dated13/12/2011 is governing the field today though Special Leave Petition No. 9823 to 9825 of 2012 and Special Leave Petition No. 13097 & 13098 of 2012 are preferred but no orders are so far obtained in the Special Leave Petitions as the same are likely to come up for hearing only on 11/5/2012.
Notification dated 3/3/2010 is in respect of amended rule no. 6 of The Gujarat Mineral (Prevention of Illegal Mining, Transportation And Storage) Rules, 2005, under which the State is, or concerned officer is empowered to withhold the issuance of royalty pases and restrict the movement and pass other prohibitory orders in respect of two eventualities, namely default in payment of royalty and in the eventuality of any breach of terms of mining lease. Thus by way of amendment introduced on 3/3/2010 by notification the State has empowered to take action including withholding the royalty pases in respect of major mineral as well as minor mineral qua the eventualities when royalty is not paid or leaseholder is in default of payment of royalty and there is breach of terms of lease, or rules & regulation of the Mineral Act, 2005.
Circular dated 20/7/2010 is in respect of implementation of the amendment qua those so called defaulters and in whose case there is lack of breach of terms of lease also.
Admittedly, so far as present petitioner is concerned the petitioner is visited with three notices reproduced on page no. 508 dated 16/9/2010, 509 dated 21/7/2010 and 510 dated 30/3/2010.
The concerned competent authority has so far passed no order on these three notices, meaning thereby the allegation and demand contained in these three notices are yet not conclusively held to be a demand and or conclusion in respect of allegation made thereunder. To be more precise, it can be said that the allegations with respect to breach of terms of lease and or default in payment of royalty is only a tentative conclusion of respondent authorities and those tentative conclusion is yet to be culminated into an order which could be subject matter of invoking provision of amended Rule 6.
It is also very important to note at this stage that the entire action of the State and the respondents in respect of revising the royalty to Rs.120/- per MT is already struck down by this Court in LPA No. 683 of 2011 and allied matters. Thus so far as the royalty aspect is concerned it is not open to the State to either raise bill, demand or continue and persist with such royalty demand or bill after the decision of the Division Bench, as such persistence or continuance would clearly be hit by the observations of decision of this Court, which is yet not reversed and or set aside by any competent court. Therefore, in this case as it is alleged, the three notices to the petitioner wherein default in payment of royalty is based upon to enhance royalty rates also, cannot be sustained as the action of enhancing royalty to Rs.120/- Per M.T. is already quashed.
19. Against the aforesaid backdrop of almost indisputable facts, question arise as to whether the respondent could be said to be justified in withholding royalty passes which has resulted into accumulation and piling of bauxite mineral on the premises/ site of the petitioner which is raising potential threat and health hazardous. The answer would be an emphatic NO. The Court is of the considered view that when the notices to the petitioner are based upon the enhanced royalty amount and when the enhancement in royalty is already struck down and there is declaration by the competent court that State lacks authority and or competence in enhancing royalty, then, on said basis any action taken would also be hit by the observation of and declaration of this Court and therefore they would to that extent become illegal and nullity. On the strength of such illegal and or unauthorized demand can State and respondents be permitted to invoke the amended Rule 6 of 2005 to the detriment of lease holder so as to deprive him of his right to carrying out activities, if otherwise permissible under the law. The production of prohibitory orders as submitted by learned counsel for the State issued by environmental protection agency are in my view appeared to be an attempt to justify the stand of the State or respondents in this petition, though they do not seem to be forming part of the exercise of withholding royalty pases. If one looks at the communication issued by Pollution Control Board on 22/8/2006, then one would without any hesitation could conclude that, that conclusion is qua excavation of mines without permission of the competent authority. Unfortunately, learned counsel for the State's answer to the said query as to whether this communication is existing today, whether respondent concerned have tried to ascertain from petitioner as to petitioner have obtained environment clearance or whether this communication has been considered actively and it has gone into active consideration for withholding itself, no clear answer could be given. Had this been a case, nothing prevented respondent authorities from placing on record deliberations to this effect, but the reply affidavit is blissfully silent on this aspect which persuade this Court to prima facie conclude that the communication placed on record is merely to justify and as a probe to the stand already taken for withholding royalty passes. Such an action cannot therefore permitted to be perpetuated. However the communication dated 22/8/2006 and its effect and purport are not subject matter of consideration before this Court and the Court has not therefore in any manner binding and or dealing in this aspect. If under that prohibitory orders even for transportation is prohibited, it is for the petitioner and concerned authority to address themselves on this issue. Suffice it to say here that prima facie that communication does not restrict transportation of bauxite which is already excavated and State authority i.e .respondents have failed in establishing or rather they had to admit that there exists no order of prohibition qua evacuation or transporting of the bauxite which is already lying on site of the petitioner's premises.
The resolution dated 19/11/2009, notification dated 3/3/2010 and circular dated 20/7/2010 are subject matter of challenge. The Court is of the considered view that without there being any unequivocal conclusion on the part of the authority qua breach of terms of the lease and conclusion on the outstanding payment of royalty, invoking of Rule 6 as a mandate would be absolutely illegal and contrary to the provision of law and therefore this petition qua the present petitioner is admitted. Hence RULE.
By way of interim relief the respondents are prevented from withholding the royalty passes qua the bauxite already excavated and lying in the premises of the petitioner, solely on the ground of existence of & issuance of three notices at page no. 508 dated 16/9/2010, 509 dated 21/7/2010 and 510 dated 30/3/2010 respectively of the petition, on account of so called outstanding of royalty which is calculated on the basis of Rs.120/- Per M.T., which is already struck down by Division Bench of this Court in LPA No. 683 of 2011 & allied matters. It is important to note here that the Division Bench's observations qua State's action of enhancing royalty and restrict the distribution and/or regulating major mineral was found to be contrary to the order dated 4/11/2009 issued by the Central Government in Ministry of Mines, New Delhi.
This order be construed to be inuring only qua the present petitioner and the royalty passes to be issued to the petitioner, if otherwise, it is not prohibited under any other law. The royalty passes to be issued within a week from today.
At this stage learned AGP for respondent State requested that this order be stayed for a period of fifteen days, which request is rejected on the ground that issuance of royalty passes is ordered to be issued within a week and hence a week's time is otherwise also available for the respondent to challenge this order before the appropriate forum; secondly it may be noticed that if the State is permitted to perpetuate its action, then it amounts to permitting the State to ignore the observations & directions of the Division Bench qua royalty issue and regulating major mineral as well as it is amounting to permitting the State to persist their illegal demand on illegal basis, depriving the citizen of his fundamental right enshrined under Article 19 of the Constitution. Therefore this Court is of the considered opinion that the request for stay deserves outright rejection and is accordingly rejected. Direct service permitted.
[ S.R. BRAHMBHATT, J ] /vgn Top