1. Mining leases — Prohibition of activity on lands notified under Section 4, Forest Act — Dispute over lease extension for the obstructed period. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 )
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2020 Supreme(SC) 633
SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, HRISHIKESH ROY, JJ.
Dharmendra Kumar Singh - Appellant
Versus
The State of Uttar Pradesh & Ors - Respondents
Civil Appeal No. 11368, 12202 of 2018, 5257, 5093, 7002 of 2019
Decided On : 28-10-2020
Advocates Appeared:
For the Appellant(s) :S.P.Singh, Mrinal Gopal Elker, Utkarsh Sharma, Sharad Chauhan, Advocates
For the Respondent(s):V. Shekhar, Rajeev Kumar Dubey, Kamlendra Mishra, T. N. Singh, Vikas K.Singh, Gurmeet Singh Makker, Pranaya Kumar Mohapatra, Advocates
For the Appellant(s) :S.P.Singh, Mrinal Gopal Elker, Utkarsh Sharma, Sharad Chauhan, Advocates
For the Respondent(s):V. Shekhar, Rajeev Kumar Dubey, Kamlendra Mishra, T. N. Singh, Vikas K.Singh, Gurmeet Singh Makker, Pranaya Kumar Mohapatra, Advocates
Important Points
Mining leases cannot be extended for periods obstructed by judicial orders if such extension contradicts statutory provisions or transparent e-auction policies. The appropriate remedy is the refund of security deposits and advance royalties, which the Court, under Article 142, ordered to be paid with 9% simple interest.
Subject
MINING - LEASE EXTENSION
Act Referred
CONSTITUTION OF INDIA: Art.142
FOREST ACT: S.4, S.20
MINES AND MINERALS DEVELOPMENT AND REGULATION ACT: S.15, S.3(e)
MINING RULES: R.68, R.40(h)
NATIONAL GREENS TRIBUNAL ACT: S.22
FOREST ACT: S.4, S.20
MINES AND MINERALS DEVELOPMENT AND REGULATION ACT: S.15, S.3(e)
MINING RULES: R.68, R.40(h)
NATIONAL GREENS TRIBUNAL ACT: S.22
Headnote
Environment (Protection) Act, 1986 - (2) and (3) (1) (v) (xiv) - Indian Forest Act, 1927 - Section 4 and 20 – Service – Forests Litigations – Land Case - Case shows that what Court are faced with today has its seeds in prior litigation and orders passed in the past in the interest of ecology, yet some persons who had succeeded in the initial battle to carry out mining activity are faced with the consequences of orders passed in other litigations - It is this conundrum, which would have to be resolved by this Court – Held, Appeals are, thus, decided as aforesaid with the limited directions and to the extent the observations in the impugned order are in contradiction thereto are set aside - It is directed that the following amounts be refunded to the appellants - Security deposit, if not already refunded, with simple interest per annum from the date it ought to have been refunded after the expiry of the lease till it is now actually refunded, in case of expired leases and Advance royalties, if not already refunded, with simple interest per annum from the date of the obstruction occurred as applicable to the respective appellants, till the date of payment –Ordered Accordingly
>Legal Category Hierarchy
- environmental law
- forest law
- administrative law
-
constitutional law
-
judicial powers
- article 142 (Para 43)
-
judicial powers
Table of Contents
2. Leaseholders seek extension under Rule 68, Mining Rules — State contends no statutory provision for extension and adherence to New Mining Policy 2017. (Para 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 )
3. Extension of mining leases requires statutory provision or contractual terms — New Mining Policy 2017 mandates e-tendering — Rule 40(h) provides only for monetary adjustment. (Para 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 )
4. Mining lease extensions cannot be granted without statutory authority or contractual provision, especially when contrary to current transparent e-tendering policies. (Para 35 , 36 , 39 , 40 )
5. Leases not extended — Security deposits and advance royalties refunded with simple interest at 9% per annum under Article 142. (Para 42 , 43 , 44 , 45 )
6. Can a mining lease be extended for a period of obstruction caused by judicial orders?
No, unless such a right flows from a statutory provision or the terms of the lease. Judicial interdicts alone do not create a window to extend leases if statutory provisions are not followed. (Para 36 , 37 )
7. What is the effect of Rule 68 of the Mining Rules regarding lease extensions?
Rule 68 is a relaxation rule to be used in the interest of mineral development. It does not confer an absolute power to extend expired leases to compensate for losses without following statutory grant or auction procedures. (Para 35 )
8. How does Rule 40(h) of the Mining Rules address disruption of mining operations?
Rule 40(h) provides that in the event of disruption due to special circumstances, the District Magistrate, with State approval, shall adjust the installment amount payable during the disrupted period against forthcoming installments. (Para 16 , 40 )
9. Does the principle 'Actus curiae neminem gravabit' automatically entitle a party to lease extension?
While the court aims to place a successful party in the original position, this is not a blanket proposition. It must be balanced against statutory provisions and current policies, such as transparent e-tendering. (Para 41 )
JUDGMENT :
SANJAY KISHAN KAUL, J.
1. An ideological battle often rages between preservation of environment and economic development. Mining activity and the manner in which it is carried on has had its proponents and opponents. Its necessity as an input for economic development is recognised but mining activity throughout our country for minerals or sands has had a troubled history on account of large-scale violations. This has also resulted in a ban on mining activity in certain areas at certain times – not the ideal method, but leaving little option open because of the rampant misuse of the licences to mine. The present litigation, in a sense, flows from the concern to regulate mining activity in eco-sensitive areas.
The Factual Development:
2. The fact flow of the present case shows that what we are faced with today has its seeds in prior litigation and orders passed in the past in the interest of ecology, yet some persons who had succeeded in the initial battle to carry out mining activity are faced with the consequences of orders passed in other litigations. It is this conundrum, which would have to be resolved by this Court.
3. Mining leases granted to projects in the mineral rich district of Sonbhadra, carved out of the district Mirzapur in the State of Uttar Pradesh (for short ‘State of UP’) in 1989 is the starting point. The All India Kaimur People’s Front (for short ‘AIKPF’) filed an application before the National Green Tribunal, New Delhi (for short ‘NGT’), being O.A. No.429/2016, inter alia seeking directions for immediate prohibition of alleged illegal mining in the vicinity of Kaimur Wildlife Sanctuary located in Village Billi Markundi in Sonbhadra District. The area being ecologically sensitive and preservation of wildlife being the objective, the NGT issued notices in the matter.
4. In pursuance of this initial development, a Notification dated 20.3.2017 was issued by the Ministry of Environment, Forest and Climate Change (for short ‘MoEFCC’) declaring the “area in question” as an Eco-Sensitive Zone (for short ‘ESZ’) under sub-section (1) and clauses (v) and (xiv) of sub-section(2) and (3) of the Environment (Protection) Act, 1986 (hereinafter referred to as the ‘EPA’).
5. The State of UP set out the factual position about the grant of leases before the NGT in an affidavit filed in this behalf. Thirty-three leases were stated to be operational outside ESZ. The NGT called upon the State of UP to explain the position of these leases in view of the order it had passed on 4.5.2016 in T.N. Godavarman Thirumalpad v. Union of India and Ors., In M.A. No. 1166 and 1164 of 2015 decided on 4.5.2016 by way of which the NGT had directed the State of UP to cancel all mining leases and all other non-forestry activities on the areas notified under Section 4 of the Indian Forest Act, 1927 (hereinafter referred to as the ‘Forest Act’). In order to appreciate the ramifications, Section 4 of the Forest Act is extracted hereinunder:
“4. Notification by State Government.—(1) Whenever it has been decided to constitute any land a reserved forest, the State Government shall issue a notification in the Official Gazette—
(a) declaring that it has been decided to constitute such land a reserved forest;
(b) specifying, as nearly as possible, the situation and limits of such land; and
(c) appointing an officer (hereinafter called “the Forest Settlement-officer”) to inquire into and determine the existence, nature and extent of any rights alleged to exist in favour of any person in or over any land comprised within such limits or in or over any forest-produce, and to deal with the same as provided in this Chapter.
Explanation.—For the purpose of clause (b), it shall be sufficient to describe the limits of the forest by roads, rivers, ridges or other well-known or readily intelligible boundaries.
(2) The officer appointed under clause (c) of sub-section (1) shall ordinarily be a person not holding any forest-office except that of Forest Settlement-office
