P.P. Bhatt JUDGMENT
Virender Singh, C.J.
1. Challenge in these writ petitions are the various letters demanding penalty alleging illegal mining by the petitioners. Prayer has been for quashing the order as contained in letter No. 1613/M Ranchi dated 31.07.2015 issued by Respondent No. 4, for quashing paragraphs 1, 3 and 5 of the order as contained in letter No. 286/M Ranchi dated 12.02.2015 issued by Respondent No. 4 and for quashing the order as contained in letter No. 891/M dated 03.08.2015 issued by Respondent No. 5. Further prayer has been made commanding upon the respondent No. 2 and 3 to execute Supplementary Lease Deed for extension of period of mining lease and also for a direction upon the respondent No. 5 to issue the forwarding notes/challans for dispatch of iron ore to the petitioner's steel plant at Jamshedpur.
2. Service upon respondents is complete.
3. These cases have come before this Court for grant of interim relief only.
4. For better appreciation of the case, we are going into the facts of W.P.C No. 3768 of 2015, for the reason that in another writ petition being W.P. (C) No. 396 of 2015, virtually the issue is same.
5. The petitioner-Company (hereinafter to be referred to as 'petitioner') is a mining lessee for Iron Ore in Noamundi, Dist. of West Singhbhum since 01.01.1922 and subsequently the lease was renewed twice for the period of thirty years each with effect from 01.01.1952-31.12.1981 and 01.01.1982-31.12.2011. Before the expiry of second renewal, the petitioner applied for third renewal and continued its mining operation during the pending of its application. The petitioner was granted Temporary Work Permission by the Ministry of Environment & Forest for the period of one year w.e.f. 29.03.2012 and the same was extended by the Hon'ble Supreme Court on 19.03.2013 for three months and again on 24.06.2013 for another three months. In the meantime, on 21.04.2014 the Hon'ble Supreme Court in Goa Foundation Vs. Union of India reported in MANU/SC/0388/2014 : (2014) 6 SCC 590 held that the opinion of the State Government in terms of the section 8(3) of Mines & Minerals (Development & Regulation) Act, 1957 (hereinafter to be referred as 'MMDR Act') is sine qua non for carrying out mining operations under Rule 24A(6) of Mineral Concession Rules, 1960 (hereinafter to be referred to as the 'MCR Rules') for the period prior to the execution of renewed mining lease in the case of second and subsequent renewal. Thereafter the Central Government amended Rule 24A(6) in MCR, 1960 and the provision of deemed renewal is deleted. The petitioner discontinued its mining operation on 31.08.2014 and sought formal orders under erstwhile section 8(3) of the MMDR Act and when the order was not made a writ being W.P.C No. 5225 of 2014 was filed and by judgment dt. 11.12.2014 the State Government was directed to issue express orders under erstwhile 8(3) of the MMDR Act. In compliance of the order dt. 11.12.2014 the State Government passed an order under section 8(3) of MMDR Act on 31.12.2014 but reduced the area from 1160.60 hec. to 768.55 hec. by deducting the forest land and further demanded penalty of Rs. 3568.32 Crores towards alleged mining. The petitioner challenged the demand of penalty by filing a writ being W.P.C No. 6459 of 2014 which is pending in this court. After grant of the express order the petitioner made payment of Rs. 152 Crore to the State Govt. under protest and resumed its mining operation on 01.01.2015. The Central Government, in the meantime, made an amendment in MMDR Act, 1957 by Amendment Act, 2015 and Section 8A(5) was introduced to the MMDR Act w.e.f. 12.01.2015. The State Government by order dt. 12.02.2015 modified the earlier order dt. 31.12.2014 and extended the period of mining lease upto 31.03.2030 with respect to the reduced area subject to the payment of demand earlier raised vide order dt. 31.12.2014. The petitioner, thereafter, repeatedly requested for renewal of its mining lease but the State raised demand of Rs. 421.83 Crore and stopped from issuing forwarding note for dispatch of iron ore to its Steel Plant. Thereafter the petitioner made payment of Rs. 50 Crores under protest on 24.07.2015 in anticipation of receiving forwarding notes in the meantime the Supplementary Lease Deed was executed. The State Government by impugned communication dt. 31.07.2015 amended the sanction order dt. 12.02.2015 and deleted paras 2, 3, 4 and 5 which included confirmation of extension of mining lease of the petitioner upto 31.03.2030. On 03.08.2015 the petitioner again requested to issue forwarding notes but it received a letter bearing No. 891/M dt.03.08.2015 whereby the petitioner was directed to make payment of Rs. 371.83 crores and to obtain Mining Dues Clearance Certificate. Hence the writ petition.
6. The second writ petition being W.P.(C) No. 3976 of 2015 also includes the same issue.
7. Heard M/s. Dr. A.M Singhvi, Senior Advocate, Gopal Jain, Sr. Advocate assisted by Indrajit Sinha, Nandini Gore, Amit Bhandari, Devina Sehgal, Khushboo Bari and Ganesh Pathak, advocates on behalf of the petitioners and M/s. Ajit Kumar Sinha, Senior Advocate, Jai Prakash, AAG, Amit Paswan, Advocate & Rishi Pallava, JC to AAG.
8. Dr. Singhvi submitted that the petitioner has prima facie a very good case on merits as in view of the insertion of Section 8A(5) in the MMDR Act the State Government is under an obligation to grant an extension of lease deed w.e.f. the date of expiry of its last renewal of the lease to 31.03.2030, in turn it is an automatic extension or can be said to be auto renewal without any hindrance, as such there is no question of any demand of penalty for illegal mining as alleged by the State Government. Dr. Singhvi contended that the State Government has granted the order under the erstwhile Section 8(3) of MMDR Act to the petitioner on 31.12.2014, however over the reduced area of 768.55 hectare against the applied renewal area of 1160.60 hectare by deducting such forest land for which the forest clearance was not obtained and imposed certain extraneous terms and conditions upon the petitioner including the demand of Rs. 3568.32 crore towards penalty for alleged illegal mining and that the petitioner challenged the said conditions of order dated 31.12.2014 passed by the State Government vide W.P.(C) No. 6459 of 2014 which is pending before this Court and tagged with L.P.A. No. 547 of 2014 arising from the order dated 11.12.2014 passed by the learned Single Judge in W.P.(C) No. 5225 of 2014 whereby State Government was directed to issue express order under erstwhile Section 8(3) of MMDR Act.
9. Learned Senior Counsel submitted that the petitioner resumed mining operations on 01.01.2015 after the grant of express order dated 31.12.2014 and upon payment of an amount of Rs. 152 crore to the State Government, however, under protest without prejudice to the rights of the petitioner under law and it is thereafter a request was made for release of forwarding notes/challans for the dispatch of iron ore to the petitioner's steel plant. Learned Senior Counsel submitted that with regard to the amount now shown to be due from the petitioner is from 21.04.2014, the day of pronouncement of Goa Foundation Case (Supra) up to 17.07.2014 which, according to the State, turns out to be Rs. 421.83 crore and that out of this amount also, petitioner has paid Rs. 50 crore. He contended that the forwarding notes/challans for dispatch of the iron ores already issued are valid till 28.07.2015 and the State respondent is now using pressure tactics upon the petitioner for the reason that if the forwarding notes/challans are not given to the petitioner, its mining activities will come to a grinding halt and the number of persons employed in the mining operation will be on roads, thereby the petitioner will suffer irreparable loss and injury. Learned Senior Counsel submitted that the State has now put certain ultra vires conditions in granting mining lease and is trying to do something indirectly which is not allowed to do directly as in law mining is not stopped but otherwise stopped. Learned Senior Counsel submitted that review of the earlier order dated 12.02.2015 in the impugned order dated 31.07.2015 without any opportunity of hearing is prejudicial to the petitioner. He submitted that balance of convenience also tilts in favour of the petitioner.
10. Learned Senior Counsel lastly submitted that the State is having royalty to the tune of more than Rs. 30 crore every month from the petitioner, despite that, it is bent upon to harass the petitioner whereas the petitioner has been able to make out prima facie a case favouring him for the interim relief of stay of the operation of the letter/order dated 31.07.2015 (Annexure-29 available on paper book).
11. Mr. Ajit Kumar Sinha, learned Senior Counsel appearing on behalf of the State tried to justify the demand of penalty as alleged stating that in view of the judgment passed in Goa Foundation Case (Supra) any mining activity carried out by lessee after expiry of the lease was illegal even if application has been made for renewal and the same not decided. Learned Senior Counsel submitted that by virtue of Section 10A(2) of MMDR (Amendment) Act, 2015, the State has to grant the mining lease to the lessee but the lessee is obliged to fulfill certain conditions imposed by the State and in this case also certain conditions were imposed and that the petitioner also agreed to it. Learned Senior Counsel submitted that it is a case in which more than 3500 crores is due from the petitioner but the recovery of the amount from the date of expiry of the first renewal up to 20.04.2014, the day of pronouncement of judgment of Goa Foundation Case (Supra), is not being made as the said issue is pending adjudication in this Court in L.P.A. No. 547 of 2014 and analogous cases tagged with the said appeal and all the cases now posted for 19.11.2015 for final consideration, therefore, any expression of opinion now at this stage would certainly have its effect upon other cases yet to be decided. Mr. Sinha submitted that the State had been rather very fair with the petitioner in not raising the said demand and has now confined its demand only from the period 21.04.2014 to 17.07.2014 for which also liberty was given to the petitioner to clear the dues in three equal monthly installments. Learned Senior Counsel submitted that the order dated 31.07.2015 now sought to be quashed is virtually a consent order and the petitioner cannot back out from the same and submitted that on this ground alone, the petition being W.P.(C) No. 3768 of 2015 deserves to be dismissed.
12. Learned Senior Counsel further submitted that the effect of Section 8A(5) would be that the leases in question which had lapsed since long would have to to auctioned and there is no provision of renewal of lapsed lease in MMDR (Amendment) Act, 2015 and that the only distinguishing feature which favours the petitioner is that on the application for renewal made by the petitioner, the decision now taken on the said application is before coming into force of the Amendment Act of 2015, otherwise the petitioner had no legs to stand at all. He thus submitted that the petitioner, in any case, has no ground much less valid on legal ground asking for the stay of the operation of impugned letter dated 31.07.2015. Similarly, petitioner in W.P.(C) No. 3976 of 2015 has also no case for any interim relief.
13. At the cost of repetition, admittedly, the petitioner had applied for the renewal of its mining lease before expiry and continued its operation on the ground of deemed renewal in terms of Rule 24A(6) of the MCR, 1960. The first change in the situation was made after the decision of Goa Foundation (Supra.) wherein the Hon'ble Supreme Court held that the opinion of the State Government is sine qua non for carrying out mining operation. Thereafter, Rule 24A(6) was amended and the mining operation was discontinued on 31.08.2014. The petitioner was granted the third renewal on dt.31.12.2014, subject to the condition that the petitioner will have to produce clearance certificate after payment of penalty of Rs. 3568.32 Crores. The petitioner resumed its mining operation on 01.01.2015 after payment of Rs. 152 Crore under protest. The second change in the situation was made after Amendment in MMDR Act by which section 8A(5) was introduced. Thereafter, the Government by letter dt. 12.02.2015 made an amendment in the earlier letter dt.31.12.2014 and provided the manner in which the payment shall be made. It is stated in the letter that payment of penalty from 18.07.2014 to 31.08.2014 shall be made immediately, payment from 21.04.2014 to 17.07.2014 shall be made in three monthly installments and payment from 01.01.2012 to 20.04.2014 shall be subject to the interim order passed by the Hon'ble Court.
14. From the facts it appears that the State has divided the payment of penalty into three parts, first is from 01.01.2012 to 20.04.2014 which is the subject matter in the pending matters before this Court, the second part is from 18.07.2014 to 31.08.2014 for an amount of Rs. 152 Crores and the third part is from 21.04.2014 to 17.07.2014 for which total of Rs. 421.83 crore was demanded. The payment of Rs. 152 Crores made by the petitioner was adjusted to the dues from 18.07.2014 to 31.08.2014. The present case is the subject matter of third part i.e. from 21.04.2014 to 17.07.2014, the period from the judgment of Goa Foundation (Supra.) to amendment of Rule 24A(6) of MCR, 1960 by which the provision of deemed renewal was deleted from the cases of second and subsequent mining leases. Out of the dues of third part the petitioner has paid Rs. 50 Crores and now, as per State Rs. 371.83 crores is still due.
15. It is a settled proposition of law that the court should be slow while granting stay in the revenue matter and the stay cannot be granted unless the party praying for stay has a very strong case vis-a-vis the case of the other party. It is also equally well settled that before granting stay the court must apply its mind to the facts of the case and must also envisage the implications and consequences of the order it proposes to make.
16. From the facts as aforesaid it appears that the following two provisions as has been laid down in MMDR Amendment Act, 2015 are relevant.
Section 8A(5) reads as follows:-
"Notwithstanding anything contained in sub-section (2), (3) and sub-section (4), the period of lease granted before the date of commencement of the Mines & Minerals (Development & Regulation) Amendment Act, 2015 where mineral is used for captive purpose, shall be extended and be deemed to have been extended up to a period ending 31st March 2030 w.e.f. the date of expiry of the period of renewal last made or till completion of the 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".
Section 10A(2)(c) reads as follows:-
"(c) where the Central Government has communicated previous approval as required under sub-section (1) of section 5 for grant of a mining lease, or if a letter of intent (by whatever name called) has been issued by the State Government to grant a mining lease, before the commencement of the Mines and Mineral Development and Regulation) Amendment, 2015, the mining lease shall be granted subject to fulfillment of the conditions of the previous approval or of letter of intent within a period of two years from the date of commencement of the said Act.
Provided that in the respect of any mineral specified in the First Schedule, no prospecting licence or mining lease shall be granted under clause (b) of this sub-section except with the previous approval of the Central Government".
17. Now coming back to the case in hand, the application for third renewal of the mining lease had already been considered before the Amendment Act, 2015 and the same was granted subject to some conditions stipulated therein. The petitioner had also acted upon the said condition by depositing Rs. 152 crores and had taken the benefit of the renewal by resuming its mining operation. As such the claim of the petitioner that after the amendment of section 8A(5) of the Amendment Act, 2015 the lease of the petitioner has been renewed by the operation of law and as such it is not liable to make any payment for the illegal mining, cannot be sustained, prima facie, for the reason that once the application for renewal had been acted upon prior to Amendment Act, 2015 then unless and until the condition precedent for renewal of the lease is fulfilled, the benefit of section 8A(5) i.e. renewal of lease up to 31st March 2030 cannot be extended to the petitioner. In section 8A(5) itself it is specifically mentioned "subject to the condition that all the terms and conditions of the lease must be complied with."
18. The aforesaid view also finds support from section 10A(c) of the MMDR Amendment Act, 2015 wherein it is provided that if any letter of intent has already been issued by the State Government for granting mining lease before the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, the mining lease shall be granted subject to fulfillment of the conditions of the previous approval or the letter of intent within a period of two years from the date of commencement of the said Act. In the present case also by letter dated 31.12.2014 third renewal to the mining lease was granted subject to the fulfillment of the conditions of the approval and as such the petitioner is bound to fulfill the conditions before taking benefit of the same. Thus, the petitioner, prima facie, has failed to establish its prima facie case more strong vis-a-vis the case the respondent..
19. So far the contention regarding balance of convenience, it has to be kept in mind that revenue is the part and partial of the development of the State and any restraint therein will affect the interest of the public at large. Looking to the case from another angle also, the petitioner is generating huge amount of profit out of iron ore mines which is being used by steel plants and earlier also the petitioner has paid the amount of penalty under protest and if it is now directed to pay the remaining amount under protest, the same will serve the interest of justice and also no harm or prejudice is likely to be caused thereby.
20. In W.P.C No. 3976 of 2015 also, prior to amendment in the MMDR Act the consent with regard to second renewal of lease of the petitioner was granted subject to some condition precedent and it had accepted the condition by depositing the amount of Rs. 2.50 crores and resumed its mining operation and as such once the State has issued letter to the lessee, the renewal shall be granted subject to the fulfillment of the condition precedent.
21. Looking to the fact that earlier also on account of deposit of some part payment against the outstanding dues, forwarding notes have been issued by the respondent No. 5, the last forwarding note was valid up to 28th July, 2015, and the fact that huge outstanding amount is involved in W.P.(C) No. 3768 of 2015 coupled with the fact that State respondent Itself has given liberty to clear that payment in three equal monthly installments effective from August, 2015, the writ petitioner-M/s. Tata Steel Limited is directed to make the payment of the said amount again within three equal installments; the first installment to be cleared by 15th October, 2015, second installment by 15th November, 2015 and third installment by 15th December, 2015. This shall, however, be without prejudice to the rights and contentions of the respective parties. It is further clarified that the forwarding notes (challans) shall be issued for lifting/transporting iron ore in proportion to the amount deposited. The same arrangements shall be applicable to the writ petitioner- M/s. Orissa Manganese and Minerals Limited in W.P.(C) No. 3976 of 2015.
22. Both the writ petitions on hand are admitted to hearing and to be heard along with L.P.A No. 547 of 2014 and other cases involving the same issue which are already posted for 19th November, 2015.
23. Parties are directed to complete their respective pleadings meanwhile.
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