Ashapura Minechem Ltd v. Indian Bureau of Mines Thr Minstry and Ors

ORDER New Delhi, the 4th January, 2017 S.O. 27(E). -Whereas difficulties have arisen in giving effect to the provisions of clause (c) sub-section (2) of Section 10A of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 (10 of 2015), in so far as it relates to fulfilment of conditions laid in the letter of intent (by whatever name called) issued by the State Governments within a period of two years from the date of commencement of the said Act. Now, therefore, in exercise of the powers conferred by the sub-section (1) of Section 24 of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 (10 of 2015), the Central Government hereby makes the following order to remove the difficulties relating to fulfilment of conditions laid in the letter of intent, namely:-

¶1Short title and commencement.- (1) This order may be called the Mines and Minerals (Development and Regulation) Removal of Difficulties Order, 2017.

(2) It shall come into force on the date of its publication in the Official Gazette.

¶2Environmental Clearance.- Notwithstanding anything contained in clause (c) of sub-section (2) of Section 10A of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 (10 of 2015), it is clarified that where the condition of obtaining environmental clearance has not been complied with by the applicant on or before 11 th January, 2017, but all other conditions specified in previous approval or the letter of intent have been fulfilled, the applications shall be considered under that section and mining lease shall be granted by the concerned State Governments in accordance with the notifications issued under the Environment (Protection) Act 1986) (29 of 1986): Provided that no mining activity shall commence unless and until the applicant obtain environmental clearance as laid down under the Environment (Protection) Act, 1986 and the rules made there under." The petitioner would submit that the above order clearly provides that as long as the applicant/lessee complies with all other conditions as set out in the previous approval or letter of intent except for the EC, the application for grant of mining lease shall be considered and granted. For such reason, though the petitioner has not complied with the condition regarding obtaining the EC as required under the prior approval and LOI, this order, according to the petitioner, carves out an exception. This is not correct.

¶57On a careful perusal of such order we do not find merit in such submission. This is so because that the said order of 4 January 2017 merely provides for obtaining the EC certificate subsequently where it could not be obtained on or before 11 January 2017. At the same time, the said order clearly lays down that no mining activity shall commence until the applicant obtains the EC as laid down under the Environment Protection Act and Rules, retaining such mandatory requirement to obtain the EC. In the given case, the petitioner has not only failed to obtain the required EC and failed to comply with such conditions under the Environment Protection Act on 11 January 2017 i.e. the statutory cut-off date. But also, even thereafter as on 6 April 2017 when the mining lease was executed, there was no compliance by the petitioner of the conditions stipulated in the prior approval issued by respondent no.5 dated 3 July 2009 and/or the subsequent LOI dated 12 August 2009. The order of 4 January 2017 does not in any manner water down the requirement, inter alia, of obtaining EC mandatory before commencing any mining activity. Accepting the petitioner's submission, it would tantamount to complete misreading and negating of the statutory provisions under the Mines Act including the said order dated 4 January 2017.

¶58The petitioner in the pleadings has also relied on a notification of the Government of India dated 5 January 2017 which though stated to be enclosed is not annexed to the petition. The relevant clauses/paragraphs of the notification reads thus:- "5. Further, in respect of cases pending because of environmental clearance, (EC), after taking legal opinion with concurrence of MoL&J & MoEF&CC we have issued notification dated 4.1.2017 (available on the website of Ministry of Mines) under the powers conferred by sub section 1 of section 24 of MMDR Amendment Act, 2015 in which the State Governments have been enabled to grant the lease without necessitating EC at this stage, provided that EC can be obtained prior to commencement of the mining activity. These leases so executed, would entail to be treated null and void if the EC is finally rejected.

¶6In this way, such pending cases, where mining plan was sanctioned but cases were pending because of EC, FC and settlement of forest rights, the States have been facilitated by the Central Government to be able to grant the lease expeditiously. Now it is up to the States how promptly they grant the lease in respect of these saved cases.

¶7Apart from these, there are certain cases pending for action/ decision with the State Government mostly with Mining Dept. and some with Revenue Dept. These cases pending with the Directorate of Mining and Geology or Forest Department or State Pollution Control Board, and other departments of your State also need to be expedited before the prescribed time limit.

¶8Considering the urgency of the matter, it is felt that the Mining Department, along with the other concerned departments/ organizations where the cases are pending in the State, may be immediately directed to take required steps for grant of leases in these cases within the timeline, i.e. 11.01.2017." (emphasis supplied) The above notification issued by the Government of India reiterates that the authorities are directed to take the necessary steps to grant the leases to strictly adhere with the timeline, statutory cut of date of 11 January 2017. There is a noteworthy facet in these proceedings. Just one day after the said notification of 5 January 2017, the petitioner addressed a letter dated 6 January 2017 to respondent no.2 is in the nature of an application for the grant of mining lease referring to the earlier application dated 15 September 2003 and certain other correspondence as set out in the subject caption. The letter/application of the petitioner dated 6 January 2017 reads thus:- "Date: 06th January 2017 To, The Principal Secretary, Department of Mines and Geology, Mantralaya, Mumbai – 400 032. Subject: Execution of Mining Lease. Ref.: 1) Application for grant of mining lease for Bauxite over an area of

62.77 Ha in Village-Sakhri, Tehsil-Mandangad, Dist. Ratnagiri, for a period of twenty years (Copy enclosed) 2) Your letter No. MMN-1004/C.R.654/IND-9 dated 12.08.2009 (Copy enclosed) 3) Section 10-A (2)(c) of MMDR Act, 1957. 4) Mining Plan Approval Letter by Indian Bureau of Mines dated 26th November 2015. (Copy enclosed) 5) Ministry of Mines Order published in The Gazette of India – Extraordinary Part II Section 3 (ii) by Government of India on 04th January 2017 (Copy enclosed) 6) Government of India Letter No.7/1/2016-MIN dated 05th January 2017 (Copy enclosed). Dear Sir, As you are aware, we have already filed an application dated 15.09.2003 for grant of mining lease for Bauxite over an area of 62.77 Ha in Village-Sakhri, Tehsil-Mandangad, Dist. Ratnagiri, for a period of twenty years. We have been granted a Letter of Intent (LOI) dated 12.08.2009 by your good office apart from prior approval from Central Government dated 03.07.2009 with regard to the grant of mining lease. We produce herewith an extract of Section 10-A (2)(c) of MMDRA Act, 1957: 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 Minerals (Development and Regulation) Amendment Act, 2015, the mining lease shall be granted subject to fulfillment of the conditions of the previous approval or of the letter of intent within a period of two years from the date of commencement of the said Act: As per the said section, it has been made mandatory that mining leases with regard to mining sites for which LOI has been issued should be granted within a period of two years of the commencement of the said Act. Thus, in view of the above referred letters in No. 5 and No. 6 we have complied with the terms and conditions of LOI. We hereby request you to issue the necessary orders to the concerned authority/department for the execution of the mining lease at the earliest. Request you to look in to the matter and do the needful at the earliest." A perusal of the above brings to fore the fact that the petitioner in making the above application is fully aware and has the complete knowledge of all mandatory compliances which are necessary in the grant of mining lease. Accordingly, the petitioner had to comply with the terms and conditions of the letter of approval dated 3 July 2009, issued by respondent no.5 followed by the LOI dated 12 August, 2009, issued by the State, as also compliance of the provisions under the Environment Protection Act, 1986 and Rules and EIA notifications dated 27 January 1994 and 14 September 2006. Despite this, the petitioner in its application incorrectly states that he has complied with the terms and conditions of the LOI, which clearly has not been done.

¶59For the reasons noted above, we are not able to accept that such conditions have been done away with the government's order dated 4 January 2017 and/or 5 January 2017 which in fact reiterate the requirements set out in the prior approval and LOI respectively. The letter of Central Government dated 5 January 2017 in fact directs the concerned departments where cases are pending in the State to take requisite steps for grant of leases within the statutory timeline of 11 January 2017. Thus, it is apparent that the application of the petitioner dated 6 January 2017 is misconstrued and misleading. Not only this, but the petitioner has also failed to comply with the terms and conditions of the mining plan dated 26 December 2011 and the modifying mining plan dated 26 November 2015 which was issued on a without prejudice basis and contingent upon compliance by the petitioner, with the provisions under the Mines Act and other allied laws including the Environment Protection Act, 1986 and Rules. All of this brings to light that the petitioner has not complied with the statutory mandate under Section 10A(2)(c) for having a valid mining lease in law, on or before the statutory cut-off date of 11 January 2017, which is sacrosanct and non-negotiable. The petitioner has also placed heavy reliance on what it calls as the grant order dated 11 January 2017, issued by respondent no.4-State Government. By this order, the State Government had sanctioned the grant of mining lease for a period of 50 years in favour of the petitioner. The following clause from such document is noted below:- "T) As per the Notification of Ministry of Mines No. 7/1/2016.M-IV(Part 1) dtd 4/1/2017, No mining activity shall commence unless and until the applicant obtains environmental clearance as laid down under the environment (Protection) Act, 1986 and the rules made there under. U) These leases so executed, would entail to be treated null and void if the EC is finally rejected." The above document in fact clearly notes two vital aspects. Firstly, it reiterates that no mining activity shall commence unless and until the applicant obtains the EC as laid down under the Environment Protection Act and Rules. Secondly, the leases so executed shall be null and void if the EC is finally rejected. As discussed above, the law mandates that the EC has to be obtained before commencing any mining activity. In any event, no mining activity could commence unless and until the EC was obtained which is also provided in the said letter dated 11 January 2017.

¶60Accordingly, reliance placed on such letter by the petitioner is an attempt to stray away from the mandatory provisions of the Mines Act, the conditions in the prior approval letter and LOI, which is not acceptable. In this context the Supreme Court in the case of Common Cause Vs. Union of India1 has categorically held that there is no doubt that a new mining project after 27 January 1994 would require a prior EC. Similarly in Deepak Kumar & Ors. Vs. State of Haryana & Ors.2 the Supreme Court has observed that mining operations going on at certain blocks in Rajasthan without complying with the conditions imposed for EC and proper sanction be immediately stopped. The Supreme Court has in the said case deprecated inaction on the part of the officials in permitting such mining leases to operate. Further, the Supreme Court in a recent decision in Vanashakti Vs. Union of India3 has made certain poignant observations as thus:- "23. Apart from the fact that the very concept of grant of ex-post facto EC is illegal, it is not possible to understand why the Central Government made efforts to protect those who committed illegality by not obtaining prior EC in terms of the EIA notification. As the EIA notification was eleven years old when

(2017) 9 SCC 499 2 2014 16 SCC 698 3 2025 SCC OnLine SC 1139 the 2017 notification was issued, there was no equity in favour of those who committed such gross illegality of not obtaining prior EC. The persons who acted without prior EC were not illiterate persons. They were companies, real estate developers, public sector undertakings, mining industries, etc. They were the persons who knowingly committed illegality. We, therefore, make it clear that hereafter, the Central Government shall not come out with a new version of the 2017 notification which provides for the grant of ex-post facto EC in any manner." What the petitioner in the present facts and circumstances is seeking for is the grant of ex post facto EC as the same was not obtained by him as on the statutory cut-off date of 11 January 2017. The petitioner's reliance on the letter/order of the Central Government dated 4 January 2017, 5 January 2017 and the grant order of the State Government dated 11 January 2017 is to submit that it is open to the petitioner to obtain an ex post facto EC. Until it is so rejected, the petitioner has duly complied with the statutory requirements. Such submission would be in the teeth of the recent judgment of the Supreme Court in Vanshakti (supra) wherein whilst making strong observations against the Central Government in the context of not obtaining prior EC, the Supreme Court has observed that such persons have committed illegality by not obtaining prior EC in terms of the Environment Impact Assessment Notification. Therefore, to accept the contentions of the petitioner in this regard would run contrary not only to the statutory framework under the Mines Act and Rules but also violate the decisions of the Supreme Court. Such course can never be accepted being legally forbidden and impermissible.

¶61We would now advert to the submissions of the petitioner in regard to Rule 8 of the Mineral Concession Rules, 2016. The said Rule reads thus:-"8. Rights under the provisions of clause (c) of sub-section (2) of section 10A.-

(1) The applicant in whose favour:

(a) the State Government has issued a letter of intent (by whatever name called) in writing before January 12, 2015, for grant of a mining lease for minerals not specified in the First Schedule to the Act; or

(b) the Central Government has communicated the previous approval in writing before January 12, 2015, under sub-section (1) of section 5, for grant of a mining lease for minerals specified in Part C of the First Schedule to the Act, shall submit a letter of compliance to the State Government, of the conditions mentioned in the letter of intent or the conditions mentioned in the previous approval granted by the Central Government, as the case may be; and the State Government shall send an acknowledgment of receipt of the letter of compliance to the applicant in Schedule II within a period of three days of receipt thereof.

(2) ……………….

(3) ……………….

(4) Where an order for grant of mining lease has been issued under sub-rule

(2), the mining lease shall be executed with the applicant in the format specified in Schedule VII and registered on or before 11th January, 2017, failing which the right of such an applicant under clause (c) of sub-section (2) of section 10A for grant of a mining lease shall be forfeited and in such cases, it would not be mandatory for the State Government to issue any order in this regard.

(5) The State Government may, for reasons to be recorded in writing and communicated to the applicant, reduce the area applied for at the time of grant of the mining lease.

(6) The date of the commencement of the period for which a mining lease is granted shall be the date on which a duly executed mining lease deed is registered." It is true that the said Rule was omitted with effect from 2 November 2021 and the petitioner would contend that this Rule ought not to be referred to. However, this very same contention has been dealt with by the Delhi High Court in the decision of Arcelormittal India Private Limited & Anr. Vs. Union of India & Ors.4 a judgment referred to by Ms. Helekar, where the Delhi High Court had the occasion to deal with a situation similar to the present proceedings. In this context the following paragraphs are noteworthy:- "41. Thus, reading the provision of Section 10A of the MMDR Amendment Act, 2015 and Rule 8 of the Mineral Concession Rules, 2016 makes it crystal clear that the legislative mandate is for obtaining the prior approvals for grant of mining lease within a period of two years from the date of commencement of MMDR Amendment Act, 2015 i.e. on or before 11th January, 2017 and not beyond that. By prescribing the cut off date of 11th January, 2017, the Legislature has envisaged that if on or before the cut off date the requisite approvals have not been obtained, the case of the applicant would be rendered ineligible. In such cases, the said area is to be dealt with in accordance with the provisions of MMDR Act and Rules framed thereunder, which prescribe that the grant of mineral concession has to be done through auction.

¶42The mere fact that the Mineral Concession Rules, 2016 has been withdrawn, the same does not mean that the cut off date of 11th January, 2017 has lost its relevance. The cut off date of 11th January, 2017 is a statutory provision, as laid down in MMDR Act, which categorically provides that all the requisite previous approvals in terms of LOI have to be fulfilled within a period of two years from 2024 SCC OnLine Del 1401 the date of commencement of the said Act.

¶43Therefore, the contention of the petitioner that since Rule 8(4) of the Mineral Concession Rules, 2016 has been omitted, the bar of 11th January, 2017 ceases to apply to the petitioner, also cannot be accepted. It is to be considered that Section 10A(2)(d) of MMDR Act which was inserted w.e.f. 28th March, 2021 clearly provides that all cases where right to obtain a lease has lapsed under Section 10A(2)(c) of MMDR Act, shall be put up for auction. It has been explained on behalf of UOI that it is only after the insertion of Section 10A(2)(d) of MMDR Act on 28th March, 2021 that Rule 8 was omitted on 02nd November, 2021, because the date of lapsing of all applications had long gone and a specific provision for putting the same to auction had also been made. Therefore, the submission that with the omission of Rule 8, the cut off date itself has gone, is clearly erroneous and must be rejected.

¶44There is another aspect of the matter. Merely on the strength of Section 10A(2)(c) of the MMDR Act, the petitioner cannot claim any absolute right for grant of mining lease even after 11th January, 2017, as the same is subject to certain mandatory conditions. It is only upon fulfilment of the twin conditions, as envisaged under Section 10A(2)(c) of MMDR Act on or before 11th January, 2017, that an applicant would be considered eligible for grant of mining lease under Section 10A(2)(c) of MMDR Act. Thus, on the cut off date of 11th January, 2017, the petitioner only had approval under Section 5(1) of the MMDR Act. Though LOI had been issued in favour of the petitioner vide letter dated 10th June, 2008, the requirement of the LOI for approval under Section 2 of FC Act, 1980 as well as the EC had not been fulfilled by the petitioner on the cut off date of 11th January, 2017. Section 10A(2)(c) of the MMDR Amendment Act, 2015, categorically envisages that mining lease shall be granted subject to fulfilment of the conditions of the previous order or of the LOI within a period of two years from the date of the commencement of the Amendment Act i.e. 11th January, 2017. Thus, as per the legislative intent, an applicant for grant of mining lease under the Old Regime was required to fulfil the conditions as envisaged in the Act and the Rules on or before 11th January, 2017. As noted hereinabove, in terms of the Removal of Difficulties Order, only EC Certificate could be obtained subsequently in cases where it could not be obtained." We are in complete agreement with the above observations, on the interpretation of Rule 8 of Mineral Concession Rules, 2016. In our view, Section 10A(2)(c) and Rule 8 need harmoniously read so as to further the aim, object and purpose of the Mines Act and Rules. Given that the said Rule 8 is in the nature of a machinery provision, it is intra vires the said section being Section 10A(2)(c) which is not assailed by the petitioner. Therefore, there is no merit in the petitioner's contention that Rule 8 Sub-clause 4 is violates the petitioner's fundamental rights it so claims.

¶62We may observe that the rationale of such harmonious construction of the said provisions would be that because the date of lapsing had long gone, a specific provision for putting such lapsed leases to auction was made, by the legislature. One would find such provision under Section 10A(2)(d) of the Mines Act. The said provision which came into force and effect from 28 March 2021 by virtue of amendments to the Mines Act reads thus:- "(d) in cases where right to obtain license or lease has lapsed under clauses (b) and (c), such areas shall be put up for auction as per the provisions of this Act: PROVIDED that in respect of the minerals specified in Part B of the First Schedule where the grade of atomic minerals is equal to or greater than the threshold value, the mineral concession for such areas shall be granted in accordance with the rules made under section 11B." We also find substance in the contention of Ms. Helekar and the averments made in the affidavit-in-reply of respondent no.5, according to which, it is a statutory requirement post the 2015 amendment to the Mines Act to put in place an auction regime, in larger public interest. This is to ensure that the mines which are state largesse are not unnecessarily blocked for private/vested interests. The petitioner has chosen to remain silent on this vital aspect of the matter.

¶63The petitioner would however, contend that Rule 8 would infringe the petitioner's fundamental rights under Article 14, 19 and 21 of the Constitution of India. Such submission is legally not tenable. The issue of the petitioner not having any fundamental right in mining is no longer res integra as held by the Supreme Court in Monnet Ispat and Energy Ltd. Vs. Union of India5 wherein the Supreme Court held that no person can claim any right in any land belonging to the government or in any mines in any land belonging to the government except as provided under the 1957 Act and the 1960 Rules. No person has any fundamental right to claim that he should be granted mining lease or prospecting licence or permitted reconnaissance operation, in any land belonging to the government. We find force in the submission of the respondent that as Mines Act is a part of the Ninth Schedule to the Constitution of India, by virtue of which Article 31-B becomes applicable, rendering the submission of the petitioner on alleged violation of such rights in the given facts, unteneble. 5 2012 11 SCC 1

¶64We now come to the petitioner's challenge to a letter dated 27 November 2018 issued by respondent no.5-Ministry of Mines, Government of India in regard to mineral concessions for major minerals falling under Section 10A(2)(c) of the amended Mines Act, 2015, on the ground that it is bad in law. The said communication reads thus:- " F. No. 7/4/2018-M.IV Government of Mines Ministry of Mines Shastri Bhawan, New Delhi Dated: 27 November, 2018 To, Principal Secretary/Secretary, In Charge of Department of Mines & Geology, All States and UTs (As per list) Subject: Mineral concessions for major minerals falling under Section 10A(2)(c) reg. Sir, It has come to the notice of Ministry of Mines that some State Governments have granted or are in the process of granting mining lease for major minerals after 11.01.2017 which were saved only for 2 years under Section 10A(2)(c) of the MMDR Amendment Act, 2015.

¶2You would be aware that the MMDR Amendment Act, 2015 came into force with effect from 12.01.2015. As per Section 10A(2)(c) of the amended Act, applications where previous approval of the Central Government was conveyed under Section 5(1) for grant of mining lease or where a Letter of Intent (LoI) was issued by the State Government for grant of mining lease, were saved from becoming ineligible, provided the lease was granted (i.e. executed & registered) subject to fulfillment of conditions of the previous approval of LoI, within a period of two years from the date of commencement of the amended Act i.e. up to 11.01.2017. The date within which such saved cases had to be converted into a mining lease has already lapsed. Hence, no mining lease can be granted beyond

11.01.2017 on the mineral concessions covered under Section 10A(2)(c) as it would be treated to be ab-initio void under Section 19 of the Act for being in contravention of the Act.

¶3Moreover, execution and registration of the mining lease are mandatory to construe it as grant of mining lease as per the provisions of Rule 8(4) of the Minerals (Other than Atomic and Hydro Carbons Energy Minerals) Concession Rules, 2016.

¶4Therefore, you are requested to send the details of such cases, if any, [covered under Section 10A(2)(c)] where mining lease was executed and registered after

10.01.2017 by the State Government. As they are ab-initio void under Section 19 of the Act for being in contravention of the Act, you are requested to take appropriate action and send the compliance in this regard to the Ministry at the earliest. Yours faithfully, (A K Mallik) Under Secretary to the Govt. of India Telephone No.011-23384743 E-mail address: ak.mallik@nic.in" Apropos the above, it may be noted that the Delhi High Court in the Decision of Arcelormittal India Private Limited & Anr. (supra) had the occasion to deal with an identical submission. This was in the context of a challenge to such letter on the ground that it refer to Rule 8(4) of the Mineral Concession Rules, 2016 (supra). As this Rule was omitted w.e.f. 2 November 2011 the petitioner would contend that it cannot be relied upon, as noted by us above. As correctly observed by the Delhi High Court, the mere fact that the said Rule has been withdrawn, does not in any way mean that the cut-off date of 11 January 2017 as reflected under Section 10A(2)(c) of the Mines Amendment Act has lost relevance. Such cut-off date is statutory under the Act, which categorically provides that all requisite previous approvals in terms of the LOI issued by the State Government have to be fulfilled within a period of two years from the commencement of the Mines Amendment Act i.e. from 12 January 2015. The respondent no.5 in such view of the matter directed its counterparts of the State Governments to furnish details of leases covered under Section 10A(2)(c) where they were so executed after 11 January 2017 by the State Governments, failing which, such leases would be void ab initio under Section 19 of the Mines Act. It is to make such statutory position clear that the said letter was issued by respondent no.5. We, therefore, do not find any infirmity much less illegality in the said communication which is issued in due compliance with the statutory provisions under the Mines Act. We thus find the submission of the petitioner to set aside the same, as untenable and legally unsustainable.

¶65At this juncture, we would refer to an order dated 16 June 2021, passed by the respondent no.5. The said order reads thus:- "Date. 16 June 2021 No. STC/1049/Show cause notice/2017/1469 Registered Ad Read : 1. Government of Maharashtra Order No. MMN-1004/C.R.654/Ind-9, dated 11/01/2017

¶2Minearals (Other than Atomic & Hydrocarbons Energy Minerals) Concession Rule -2016 sub rule 20

¶3Government of Maharashtra letter no. MNG-0719/P.K.43/Ind-9, Dated 25/02/2021. ORDER Whereas a mining lease for Bauxite has been granted to M/s Ashapura Minechem Ltd. over an area of 62.77 Hee. in Sakhari village in Mandangad Tahsil of Ratnagiri District for the period of 06/04/2017 to 05/04/2067 and the above said lease has been executed on 06/04/2017. Whereas the lessee has not submitted returns for the year from 2017-18 and the lessee has not commenced mining operation for more than two years and has not applied explaining the reasons for the same within stipulated time. Thus, the lessee has violated the rule 53 of Mineral Conservation & Development Rule-2017 and rule 20 of Minerals (Other than Atomic & Hydrocarbons Energy Minerals) Concession Rule-2016 respectively.

Therefore, as per the powars conferred under rule 20 of Minerals (Other than Atomic & Hydrocarbons Energy Minerals) Concession Rule-2016 vide Industries, Energy & Labour Department, Govemment of Maharashtra notification No.MNG-0716/C.R.63/Ind-9, Dated 22/09/2016 and Govemment of Maharashtra letter no MNG-0719/P.K.43/Ind-9, Dated 25/02/2021, I, The Director, Geology & Mining, Government of Maharashtra declares the above mining lease as lapsed.

Sd/-

Director, Directorate of Geology & Mining, Government of Maharashtra, Nagpur" By the said order, the respondent no.5 has come to a reasoned conclusion that the petitioner-lessee has not submitted the returns from 2017-18 and has not commenced with the mining operation for more than two years and has also not applied explaining the reasons for the same within the stipulated time. In view thereof, under Rule 20 of the Mineral Concession Rules, 2016, the mining lease of the petitioner has lapsed. We find that such order is passed in conformity with the statutory mandate and the provisions of the Mines Act and Rules as set out thereunder. However, it is pertinent to note that such order was reversed by the impugned order of respondent no.3 dated 24 March 2023 mainly on the ground that the petitioner was not heard when the order dated 16 June 2021 was passed by respondent no.2. In any event, in our view, as we have observed below, the reversal of the said order of 16 June 2021 does not assist the petitioner. This is inasmuch as the mining lease had lapsed by operation of law on 11 January 2017, under Section 9A(2)(c) of the Mines Act as amended. Such lapsed, or dead lease by operation of law cannot be resurrected.

¶66We would now advert to the impugned letters dated 24 March 2023 issued by respondent no.3 along with subsequent letter of 9 February 2024. The said communications have been issued in the backdrop of Section 4A of the amended Mines Act. Before we delve into the nuances, it is pertinent to refer to Section 4 of the Mines Act which reads thus:- "4. Prospecting or mining operations to be under licence or lease

(1) No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or of a exploration licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder. PROVIDED that nothing in this sub-section shall effect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement: ………. ……….

(1A) No person shall transport or stone or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder (inserted by Act 38 of 1999, w.e.f. 18-12-1999.).

(2) 6[No 7[mineral concession]] shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder." It is clearly spelt out in the above provision that no person shall undertake mining operations in any area including that of a mining lease except in accordance with the terms and conditions of such mining lease. Adherence to the terms and conditions of such mining lease is imperative. Further, it prescribes that no mineral concession shall be granted except as in the manner provided under the Mines Act and Rules. In other words, no deviation from the provisions is permissible. It is in such context that Section 4A has been incorporated. Section 4A of the Mines Act reads thus:- "4A. [Termination of prospecting licences, exploration licences or mining leases]

(1) ...

(2) ...

(3) ... Substituted for "No prospecting licence or mining lease", ibid. Substituted for "reconnaissance permit, prospecting licence or mining lease" by Act 16 of 2021, dt. 28-3-2021, w.e.f. 28-3-2021.

(4) Where the holder of a mining lease fails to undertake production and dispatch for a period of two years after the date of execution of the lease or, having commenced production and dispatch, has discontinued the same for a period of two years, the lease shall lapse on the expiry of the period of two years from the date of execution of the lease or, as the case may be, discontinuance of the production and dispatch: PROVIDED that the State Government may, on an application made by the holder of such lease before it lapses and on being satisfied that it shall not be possible for the holder of the lease to undertake production and dispatch or to continue such production and dispatch for reasons beyond his control, make an order, within a period of three months from the date of receipt of such application, to extend the period of two years by a further period not exceeding one year and such extension shall not be granted for more than once during the entire period of lease: PROVIDED FURTHER that such lease shall lapse on failure to undertake production and dispatch or having commenced the production and dispatch fails to continue the same before the end of such extended period." The petitioner would contend that the above provision cannot be applied retrospectively as it was introduced w.e.f. 28 March 2021 and should thus apply only prospectively. In such backdrop, we refer to the relevant portion of the said communication which reads thus:- "OBSERVATIONS

¶7I have gone through the written submission along with its annexure, the relevant provisions of the Mines and Minerals (Development & Regulation) Act 1957, MMDR (Amendment) Act 2015 and MMDR (Amendment) Act 2021 and MCR Rules, 1960 and 2016.

¶8The amendment Act 2021 envisages an extension for a period of one year in cases where the holder of a mining lease fails to undertake production and dispatch, for two years either after the execution of the lease or having discontinued production and dispatch for a period of two years having commenced the same. It is also certified that this extension can only be granted once during the entire period of the lease.

¶9This period of two years has to be continues.

¶10In view of outbreak of COVID-19 and consequent lockdowns, the Central Government as per order No.MVI-16/44/2020-Mines-V1 dated 14 October, 2021, has extended the period of production and dispatch specified under sub section (4) of section 4A of the Act by Six months from the date of expiry of the period specified or extended under the sub section.

¶11This extension is subject to the condition that the existing lease must be existed on the 1st April, 2020 and the period of two year is or was expiring after the 1st April, 2020.

¶12The procedure to lapse a mining lease has been prescribed u/r 20 of the MCR 2016. It is provided under rule 20 (2) that the lapsing of a mining lease should be recorded with reasons through an order by the state Government and must be communicated to the lessee.

¶13Sub Rule (3) of rule 20 of MCR 2016 provides that where a lessee in unable to commence the production and dispatch either after execution of the lease or after discontinuance for reasons beyond its control, is allowed to submit an application to the S.G. explaining the reasons, before the lapse of lease. The State Govt. after examining the adequacy and genuineness of the reasons can pass an order under sub rule (6) extending the period of two years by further period of one year.

¶14However, the amended (Sub Rule (7) of Rule 20 has declared all lease revival applications submitted under the third proviso of Sub Section (4) of Section 4 (A), and which were not disposed of on or before 28th March, 2021 as lapsed.

¶15The Hon'ble Apex Court in the case of Common cause Vs Union of India held that a lease cannot be lapsed automatically as the holder could have valid reasons for non-commencement or discontinuance which could be because of an order passed by the authority or any legal compulsion.

¶16Shortage of minerals in the domestic market cannot be overcome by lapsing existing leases.

¶17In the present case it is not disputed that the mining operations were not commenced due to non-receipt of Environment Clearance.

¶18Meanwhile, the MMDR (Amendment) Act, 2015 came in to force. The then section 4A (4) and Rules 20 were containing the words "mining operation" until substituted by the words "production and dispatch" by an amendment, Act 2021.

¶19As per MCR 2016, prior to amendment on 2021 "mining operation" were explained as follows: "Mining operations shall include the erection of machinery, laying of tramway or construction of a road or any other operation undertaken for the purpose of winning of minerals".

¶20A provision of the Act cannot be retrospective. Therefore the amended provisions of section 4 A (4) of the MMDR (Amendment) Act, 2021 were came into force on 28.03.2021. CONCLUSION In the present case, the mining operations could not commenced due to non receipt of Environment Clearance. Obtaining of EC is an operation undertaken for the purpose of winning of mineral. This qualifies term mining operations and proves that it is an adequate and genuine reason for non-commencement of mining operations under section 4 A (4) of the MMDR (Amendment) Act, 2021. In view of the above circumstances the non-commencement is justified and therefore the lessee has to commence the production and dispatch on or before 28th March 2023. The order of DGM, Nagpur declaring the lease as lapsed issued on 16.06.2021 under rule 20 (6) of MCR, 2016 is not sustainable as it was issued without giving an opportunity of hearing and hence liable to be quashed and set aside. Therefore the lease was substring on 28.03.2021 and entitled to commence production and dispatch on or before 28.03.2023. ORDER In exercise of the powers conferred upon the State Government under section 4A (4) of MMDR (Amendment) Act, 2021 and Rule 20 of the MCR 2016, I pass the following order,

¶1The order issued by Director, Geology and Mining, Nagpur dated 16.06.2021 is quashed and set aside.

¶2The lessee M/s Ashapura Minechem Ltd. is allowed to commence the production and dispatch on or before 28th March 2023.

¶3The Director, Geology and Mining, Maharashtra is directed to take further necessary action in the matter.

¶4The order should be communicated to all concerned." A bare perusal of the above context it is to be noted that the Hon'ble Minister has observed that sub-section 4 of Section 4A cannot be applied retrospectively and has to be applied prospectively w.e.f. 28 March 2021. Accordingly, the Hon'ble Minister has extended the period of commencement of mining operations which later was changed to production and dispatch from the amendment of 28 March 2021 to 28 March 2023 i.e. for a period of two years as set out in the amended provision. However, the petitioner would contend that the said provision under sub-section (4) of Section 4A will not apply to leases executed prior to such period i.e. to the present lease which was executed on 6 April 2017. Considering this submission it is apposite to refer to the provision as it existed prior to its substitution, which reads thus:- "(4) Where the holder of a mining lease fails to undertake mining operations for a period of one year after the date of execution of the lease or, having commenced mining operations, has discontinued the same for a period of one year, the lease shall lapse on the expiry of the period of one year from the date of execution of the lease or, as the case may be, discontinuance of the mining operations: PROVIDED that the State Government may, on an application made by the holder of such lease before it lapses and on being satisfied that it will not be possible for the holder of the lease to undertake mining operations or to continue such operations for reasons beyond his control, make an order, within a period of three months from the date of receiving of such application, subject to such conditions as may be prescribed, to the effect that such lease shall not lapse: PROVIDED FURTHER that such lease shall lapse on failure to undertake mining operations or inability to continue the same before the end of a period of six months from the date of the order of the State Government: PROVIDED ALSO that the State Government may, on an application made by the holder of a lease submitted within a period of six months from the date of its lapse and on being satisfied that such non-commencement or discontinuance was due to reasons beyond the control of the holder of the lease, revive the lease within a period of three months from the date of receiving the application from such prospective or retrospective date as it thinks fit but not earlier than the date of lapse of the lease: PROVIDED ALSO that no lease shall be revived under the third proviso for more than twice during the entire period of the lease." A bare perusal of the above would bring to the fore that such provision which existed prior to its amendment clearly postulates to two pre-requisites (a) an application to be made by the applicant/lessee before the lease lapses (b) such application has to be made within the time frame resulting in an order passed by the State Government to be fulfilled in the manner stipulated in such provision. Due to absence of fulfillment of such conditions in the present case where the lease as noted above had long lapsed by the operation of law on 11 January 2017 as mandated under Section 9A(2)(c) of the Mines Act it could never have been revived. Therefore, even taking the submission of the petitioner at face value that Section 4A(4) as amended from 28 March 2021 shall not apply to leases executed prior to such date is of no assistance to the petitioner in any manner whatsoever. Further, the petitioner would submit that obtaining the mandatory EC is for the purpose of winning of mineral (i.e. a part of extraction of minerals from the soil) qualifies the expression 'mining operation' under the unamended Section 4A(4) of the Act, which would be a good reason for non-commencement of mining operations under such unamended Section 4A(4). However, in that case as discussed (supra) a mandatory EC for the purpose of mining operation cannot be dispensed with as also categorically held by the Supreme Court, in cases of mining operations. In any event, the provisions under the Mines Act read with the prior approvals, LOI issued by the State Government as also the grant order of the State Government dated 11 January 2017 on which the petitioner places heavy reliance, also makes the obtaining of the EC prior to commencement of mining operations mandatory. Thus, the said submission is also of no assistance to the petitioner which deserves to be rejected. A perusal of the other impugned communication dated 9 February 2024 issued by respondent no.3 is now adverted to, which reads thus:- "No.-MNG-0722/C.R.133/Ind-9(B) Date: 9th February, 2024 ORDER Mining lease for Mineral Bauxite have been sanctioned to M/s. Ashapura Minechem Ltd. at Mauje Sakhari, Tal. Mandangad, Dist.Ratnagiri, their details are as under:- Order No.and Date Area Execution Date Total Period MMN 1004/C.R.65

62.77 Ha.

06.04.2017

06.04.2017 to 4/Ind-9

05.04.2067 And whereas, the provision in Section 4A(4) of the MMDR Act reads as follows, Where the holder of a mining lease fails to undertake production and dispatch for a period of two years after the date of execution of the lease or, having commenced production and dispatch, has discontinued the same for a period of two years, the lease shall lapse on the expiry of the period of two years from the date of execution of the lease or, as the case may be, discontinuance of the production and dispatch: Provided that the State Government may, on an application made by the holder of such lease before it lapses and on being satisfied that it shall not be possible for the holder of the lease to undertake production and dispatch or to continue such production and dispatch for reasons beyond his control, make an order, within a period of three months from the date of receipt of such application, to extend the period of two years by a further period not exceeding one year and such extension shall not be granted for more than once during the entire period of lease: Provided further that such lease shall lapse on failure to undertake production and dispatch or having commenced the production and dispatch fails to continue the same before the end of such extended period. And whereas, based on the above provision, the said mining lease was lapsed by the Director, Directorate of Geology and Mines vide order dated 16/06/2021 And Whereas, accordingly, in respect of the said mining lease, the Hon'ble Minister (Mines) in accordance with the provisions of Section 4-A of the Mines and Minerals (Development and Regulation) Act, 1957, (Amendment) Act, 2021 and Rule 20 of the Mineral Concession Rules 2016 conducted the hearing on dated 21/12/2022. And Whereas, after the hearing, the Hon'ble Minister (Mines), by order dated 24/03/2023, the deadline of production and Dispatch for this mine was given till 28/03/2023 And whereas, however, as the said period was very insufficient, for the mining lease holder, to start mining, to get the mining plan approved by the Indian Bureau of Mines, to reach the mineral level by Geo-Physical Survey and drilling, to prepare and approve the revised mining plan accordingly. It is also necessary to obtain Consent to Operate from MPCB, therefore to meet these conditions, M/s. Ashapura Minechem Ltd. as per rule 20 (3) of the Mineral Concession Rules, 2016 to start production and dispatch in said mining leases submitted application on date 11/04/2023 to Director, Directorate of Geology and Mining for granting extension of 01 year from the date of 28/03/2023. Hence Director Geol And whereas, the provision in Section 4A(4) of the MMDR Act reads as follows, Where the holder of a mining lease fails to undertake production and dispatch for a period of two years after the date of execution of the lease or, having commenced. production and dispatch, has discontinued the same for a period of two years, the lease shall lapse on the expiry of the period of two years from the date of execution of the lease or, as the case may be, discontinuance of the production and dispatch: Provided that the State Government may, on an application made by the holder of such lease before it lapses and on being satisfied that it shall not be possible for the holder of the lease to undertake production and dispatch or to continue such production and dispatch for reasons beyond his control, make an order, within a period of three months from the date of receipt of such application, to extend the period of two years by a furthes period not exceeding one year and such extension shall not be granted for more than once during the entire period of lease: Provided further that such lease shall lapse on failure to undertake production and dispatch or having commenced the production and dispatch fails to continue the same before the end of such extended period. And whereas, based on the above provision, the said mining lease was lapsed by the Director, Directorate of Geology and Mines vide order dated 16/06/2021 And Whereas, accordingly, in respect of the said mining lease, the Hon'ble Minister (Mines) in accordance with the provisions of Section 4-A of the Mines and Minerals (Development and Regulation) Act, 1957, (Amendment) Act, 2021 and Rule 20 of the Mineral Concession Rules 2016 conducted the hearing on dated 21/12/2022. And Whereas, after the hearing, the Hon'ble Minister (Mines), by order dated 24/03/2023, the deadline of production and Dispatch for this mine was given till 28/03/2023 And whereas, however, as the said period was very insufficient, for the mining lease holder, to start mining, to get the mining plan approved by the Indian Bureau of Mines, to reach the mineral level by Geo-Physical Survey and drilling, to prepare and approve the revised mining plan accordingly. It is also necessary to obtain Consent to Operate from MPCB, therefore to meet these conditions, M/s. Ashapura Minechem Ltd. as per rule 20 (3) of the Mineral Concession Rules, 2016 to start production and dispatch in said mining leases submitted application on date 11/04/2023 to Director, Directorate of Geology and Mining for granting extension of 01 year from the date of 28/03/2023. Hence Director Geology and Mining vide letter dated 10.07.2023 submitted the proposal to the State Government for further action. Now therefore, exercising the powers conferred upon the State Government under section 4A(4) of the MMDR Act 2021 and under Rule 20(6) of the MCR 2016 and interest of mineral of state, the State Government is pleased to grant one year extension to recommence the production and dispatch from the said lease i.e. up to 28/03/2024, subject to the condition that no further extension of time for production and dispatch shall be granted to this mine. If the production and dispatch could not be started on or before 28/03/2024 then the lease will be liable to be lapsed under the amended clause 4A (4) of The Mines and Minerals (Development and Regulation) (Amendment) Act, 2021. (Laxmikant Dhoke) Joint Secretary, Government of Maharashtra" In this regard, we may observe that the above would tantamount to reviving a lapsed lease by an executive action which has lapsed due to operation of law on 11 January 2017, as a result of the petitioner's own non-compliance of the conditions in the prior approval dated 3 July 2009 followed by the LOI issued by the State Government dated 12 August 2009. In fact as discussed above, such lease is rendered non-est as it would be in breach of Section 19 of the Mines Act. In any event, arguendo, the extension so granted by respondent no.3 under the said letter dated 9 February 2024 would result in granting the petitioner more than one extension which is ex facie impermissible and illegal under the statutory scheme of the Mines Act. Such extensions cannot be granted in respect of leases which lapsed by operation of law and hit by Section 19 of the Mines Act. As discussed above, even under the amended and/or unamended provisions of Section 4A(4) of the Mines Act, the petitioner is ex facie ineligible to any benefit of any extension in a manner that the law would mandate. We therefore cannot subscribe to the submissions of the petitioner that the time granted to the petitioner by the impugned orders was not adequate to comply with the mandatory statutory requirements including obtaining the EC under the Mines Act and Rules. With regard to such extensions given under the impugned orders dated 24 March 2023 and 9 February 2024 we may observe that it is settled law that the concept of equality as envisaged under Article 14 is a positive concept which cannot be enforced in a negative manner. If such claims are enforced, which are contrary to law, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order. Judicial process cannot be abused to perpetuate illegalities. Two wrongs can never make a right. The Supreme Court in Ekta Shakti Foundation Vs. Government of NCT of Delhi8 was pleased to make these observations in light of the settled law cited by it, which would govern the facts and circumstances in the proceedings before us.

¶67At this juncture we would test the petitioner's submission in regard to the relaxation of application of Section 4A of the Mines Act read with Rule 20(1) of the Mineral Concession Rules, 2016. Rule 20(1) of the 2016 MCR Rules reads thus:- "20. Lapsing of the mining lease

(1) Where production and dispatch has not commenced within a period of 8 (2006) 10 SCC 337 two years from the date of execution of the mining lease, or is discontinued for a continuous period of two years after commencement of production and dispatch, the mining lease shall lapse.

(2) The lapsing of a mining lease shall be recorded through an order issued by the State Government and shall also be communicated to the lessee.

(3) Where a lessee is unable to commence the production and dispatch within a period of two years from the date of execution of mining lease or discontinuation of production and dispatch for reasons beyond its control, he may submit an application to the State Government, explaining the reasons for the same and stating the further time required, at least three months before the expiry of such period of two years: PROVIDED that where the lessee has failed to make the application within the time stipulated above due to the reasons beyond his control but has made application before the lapse of lease under sub-rule (1), the State Government may condone the delay in making the application and in such case the State Government shall pass an order under sub-section (6) before the lapse of lease: PROVIDED FURTHER that where the lessee has failed to make the application within the time stipulated above or delay in making the application has not been condoned by the State Government, the lease shall lapse in accordance with sub-rule (1).

(4) ……..

(5) ……..

(6) ……..

(7) Any application for revival of the mining lease submitted under the third proviso to sub-section (4) of section 4A, as it stood prior to commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2021, namely, the 28th March, 2021, which is not disposed of by the State Government prior to the said date, shall lapse on the said date." As the above was introduced by an amendment brought about under Section 13 of the Mines Act w.e.f. 4 March 2016, it would be apposite to also refer to Rule 28 of the erstwhile Mineral Concession Rules, 1960 which reads thus:- "28. Lapsing of leases

(1) Where production and dispatch has not commenced within a period of two years from the date of execution of the mining lease or is discontinued for a continuous period of two years after commencement of production or dispatch, the mining lease shall lapse on the expiry of the period of two years from the date of execution of the lease or, as the case may be, discontinuance of the production and dispatch.

(2) The lapsing of the mining lease shall be recorded through an order issued by the State Government and shall also be communicated to the lessee.

(3) Where a lessee is unable to commence the production and dispatch within a period of two years from the date of execution of the mining lease or discontinuation of production and dispatch for reasons beyond his control, he may submit an application to the State Government, requesting for an extension of such period of two years by a further period not exceeding one year, explaining the reasons for the same, at least three months before the expiry of such period of two years: PROVIDED where the lessee has failed to make the application within the time stipulated above, the lease shall lapse on expiry of the period of two years.

(4) Application made under sub-rule (3) shall specify-

(a) the reasons on account of which it will not be possible for the lessee to undertake mining operations or continue production and dispatch;

(b) the manner in which such reasons are beyond the control of the lessee;

(c) the steps that have been taken by the lessee to mitigate the impact of such reasons; and

(d) the period of extension sought.

(5) Every application under sub-rule (3) shall be accompanied by a fee of two hundred rupees.

(6) The State Government shall, after examining the application, pass an order, within a period of three months from the date of receipt of the application made under sub-rule (3) or the date on which the mining lease would have otherwise lapsed, whichever is earlier, either granting or rejecting such request: PROVIDED that such mining lease shall lapse on failure to undertake production and dispatch or inability to continue production and dispatch within the extended period of one year. PROVIDED FURTHER that such extension shall not be granted for more than once during the entire period of lease.

(7) The State Government shall communicate to the Coal Controller's Organisation, Nominated Authority and Ministry of Coal the order recorded under sub-rule (2) or issued under sub-rule (6)within fifteen days of recording or issuing of such order." A conjoint reading of Rule 20 of the amended Rules and Rule 28 of the Mineral Concession Rules, 1960 would also make it clear that if the production or dispatch has not commenced within the stipulated period of two years from the date of execution of the mining lease or is discontinued for a continuous period of 2 years after commencement of such production or dispatch then the lease shall lapse. Even on such count the petitioner has no case, even as contemplated under the said Rules, the lapsed or dead lease of the petitioner can never be revived.

¶68As the last straw on the camel's back, the petitioner seeking relaxation of Section 4A read with Rule 20 of the Mineral Concession Rules, 2016 is not tenable, as resorting to such course is statutorily forbidden. Such submission would ex facie in breach of the provisions under the Mines Act and Rules. Accordingly, such contention being completely without merit deserves to be rejected outright.

¶69Further to the above, we may refer to the email communication dated 17 October 2023 issued by the respondent no.5 to the petitioner, rejecting the request of the petitioner for the grant of mining code. The said communication reads thus:- "Sir, With reference to your previous email dated 04.10.2023 regarding the request for issuance of mine code, it is to inform you that the mining Icase deed for mineral Bauxite over an area of 62.77 hectares situated near Village Sakhari, Taluka-Mandangad, District-Ratnagiri, Maharashtra. It has come to this office's knowledge that the subject lease deed, executed by the State Government of Maharashtra on 06.04.2017 in favor of M/s Ashapura Mineehem Ltd, was carried out by the State Govt. after a period exceeding two months from the deadline, which was set at 11.01.2017. This is in V contravention of the MM(D&R) Amendment Act 2015 and Minerals (Other than Atomic and Hydrocarbons Energy Minerals) Concession Rules -2016. Furthermore, I would like to draw your attention to the communication received from the Ministry of Mines, dated 27.11.2018, vide its letter no. F. No. 7/4/2018-M. IV. In this communication, it was clearly advised to the concerned State Governments that any Mining Lease (ML) executed and registered after 11.01.2017 in respect of the cases saved under Section 10A(2) (c), would be deemed ab initio void under Section 19 of the MMDR Act due to their contravention of the Act. In light of the aforementioned provisions and guidelines, the matter has been duly examined and this is to inform you that this office is unable to consider your request for the generation of a mine code. Encl: Ministry of Mines letter no. dated 27.11.2018" A bare reading of the above communication would make it abundantly clear that respondent no.5-Ministry of Mines reiterating the position of law under Section 10A(2)(c) read with Section 19 of the Mines Act has conveyed that the mining lease of the petitioner executed and registered after the statutory cut-off date of 11 January 2017 considering the non-compliances of the petitioner as on such date has lapsed and cannot be revived. The logical and legal conclusion of such lapse would be refusal of the mining code as conveyed by the said email, warranting no interference.

¶70The petitioner would strenuously contend that Section 4A of the Mines Act should be interpreted in a particular manner. This according to the petitioner being that the time taken by the government authorities and/or agencies to pass the revival order dated 24 March 2023 and the subsequent extension order dated 9 March 2024 (i.e. 32 months in aggregate out of 36 months) be excluded. Such contention would require rewriting of the provisions under Section 4A and/or relaxation in the said provision, neither of which is permissible, much less legally tenable. Such course is not contemplated in the said provision. To call upon the Court undertake such exercise would tantamount to exercising powers within legislative domain, which is constitutionally impermissible under the recognized doctrine of Separation of Powers which forms part of the basic structure theory as propounded in the Kesavananda Bharati Vs State of Kerala & Anr.9.

(1973) 4 SCC 225

¶71The above submission of the petitioner is not limited to Section 4A but also to its interpretation of Section 9A(2)(c) of the Mines Amendment Act, 2015. In this context it is reiterated that the conditions as prescribed under the LOI have to be fulfilled before the cut-off date of 11 January 2017. In the absence of the same, the petitioner cannot seek execution of the lease deed on the ground that it has fulfilled the condition subsequently. In this context, the privy counsel in the case of Nazir Ahmad Vs. King-Emperor: Privy Council10 held that "where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden". This principle was first laid down in the celebrated decision of the Chancery Court in the case of Taylor Vs. Taylor11 where it was held that where a statutory power is conferred for the first time upon a Court and the mode of exercising it is pointed out, it means that no other mode is to be adopted. This principle has been time and again followed by our Courts as recently by the Supreme Court in the case of Union of India Vs. Mahendra Singh12 where the Supreme Court held that if a particular procedure in filling up the application form is prescribed, the application form should be filled up following that procedure alone. Following such settled principles of law, the submissions of the petitioner suggesting relaxing and/or diluting the statutory provisions under Section 10A(2)(c) read with Section 4A of the amended Mines Act cannot be 10 AIR 1936 PC 253(2) 11 (L.R.) 1 Ch. 426, 431 12 2022 SCC OnLine SC 909 accepted.

¶72The petitioner would urge that some right had accrued and become vested in the petitioner vide the prior approval letter of respondent no.5 dated 3 July 2009 followed by the LOI issued by the State Government dated 12 August 2009. As such right had vested in the petitioner, it had been expressly saved by Section 10A(2)(c) of the Mines Act, as amended. The Supreme Court in the case of State of Rajasthan Vs. Shrawan Kumar Kumawat13 held in categorical terms that there is no vested right with the applicant to seek lease of a government land or over the minerals beneath the soil. It has been held that there is no question of having any fundamental right in mining. Further, no applicant can contend that he is entitled for a lease merely on the basis of a pending application. The Supreme Court also observed that when a decision is taken by a competent authority in public interest by evolving a better process such as auction, a right, if any, to the applicant seeking lease over a government land evaporates on its own. An applicant cannot have an exclusive right in seeking grant of licence of a mineral unless facilitated accordingly by a statute.

¶73Thus, accepting the petitioner's submission would run contrary to such settled legal principles as also to the letter and spirit of Section 10A(2)(c) of the Mines Act as amended. The said Section does not save any such right much less vested right which never accrued to the petitioner, who failed to comply with 13 2023 SCC OnLine SC 898 the mandatory conditions under the prior approval letter and/or the LOI, as on the cut-off date of 11 January 2017. In this context the petitioner in the petition has placed reliance on the judgment of the Supreme Court in the case of Bhushan Power and Steel Ltd. Vs. State of Odisha14. In the said case the Supreme Court held that some kind of right in law came to be vested in the category of cases which led the parliament to make such provision, saving those rights and understandably so. Such situation has not risen in the given facts to make the said decision applicable to the present case. The subsequent decisions quoted in the petition, citing the decision of Bhushan Power (supra), stands on completely different facts and circumstances which are of no assistance to the petitioner.

¶74In light of the forgoing discussion, there is no merit in the petition. Accordingly, the following order is passed:- ORDER i. The petition is dismissed. No costs. [ADVAIT M. SETHNA, J.] [G. S. KULKARNI, J.] 14 (2017) 2 SCC 125

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4160 OF 2024 Ashapura Minechem Ltd. ) 287, D.N. Road, Jeevan Udyog Building ) Fort, Mumbai – 400 001 ) ...Petitioner Versus 1. Indian Bureau of Mines through ) Ministry of Mines. ) Goa Regional Office, ) Central PWD Quarters, IBM Colony, ) New National Highway, Fatorda PO, ) Opp Old RTO Office, Borda, ) Margao, Goa 403602. 2. Directorate of Geology and Mining ) Through Government of Maharashtra) Khanji Bhavan, 27, Shivaji Nagar, ) Cement Road, Nagpur- 440010 ) 3. Ministry of Ports and Mining ) Through Government of Maharashtra) Mantralaya, Mumbai 400032 ) 4. Industries, Energy & Labour ) Department, ) through the Government of ) Maharashtra ) Hutatama Rajguru Chowk, ) Madam Kama Marg, Mantralaya ) Mumbai 400032 ) ...Respondents ------------------- Mr. Harsh Meghani a/w. Mr. Ashish Parwani a/w. Mr. Dikshet Mehra and Mr. Mithilesh Challa i/by Rajani Associates for the Petitioner. Ms. Anjali N. Helekar a/w. Ms. Anu C. Kaladharan for Respondent Nos.1 to 5. Ms. S.D. Vyas, Addl. G.P. a/w Ms. T.J. Karpe, AGP for Respondent-State. ------------------- CORAM : G. S. KULKARNI & ADVAIT M. SETHNA, JJ. RESERVED ON : 5 MARCH 2025 PRONOUNCED ON : 6 JUNE 2025 JUDGMENT [PER: ADVAIT M. SETHNA, J.] Any State Largess is rooted in the foundation of "trusteeship, which is premised on need and not on the individual greed.* 1. This is a Writ Petition filed under Article 226 of the Constitution of India praying for the following reliefs which reads thus. "(a) That this Hon'ble Court be pleased to declare that Section 4-A(4) of the Mines & Minerals (Development and Regulation) Act, 1957 as amended with effect from 28.3.2021 does not apply to leases executed prior thereto and that such lease shall be governed by the provisions of Section 4-A(4) of the Mines & Minerals (Development and Regulation) Act, 1957 as they stood on the date of execution of such leases; (b) To declare that the retrospective application of the provision under Sec. 4-A as amended by the said Amendment of 2021 is violative of the fundamental rights of the Petitioner under Articles 14, 19(1) (g) and 21 as guaranteed under Part III of the Indian Constitution. * The quoted, italicized portion are the "telling words" of the Father of the Nation – Mahatma Gandhi. (c) That in the alternative to prayer (a) above, this Hon'ble Court be pleased to hold that in computing the period of two years or a further period of one year, as the case may be under the amended section 4-A, the time taken by Government authorities and/or agencies and/or bodies to pass the revival order dated 24th March 2023 and the subsequent extension order dated 9th February 2024 (i.e. 32 months in aggregate out of 36 months) be excluded; (d) That this Hon'ble Court be pleased to issue a Writ of Certiorari, or a Writ in the nature of Certiorari, or any other appropriate writ, order or direction, calling for the records and proceedings leading to the passing of the Order dated 24th March, 2023 (Exhibit V hereto) and the Order dated 9th February, 2024 (Exhibit AA hereto) and after going into the legality, validity and propriety thereof, to quash and set aside the same to the extent they seek to arbitrarily impose the condition of commencing production and dispatch on or before 28th March, 2024; (e) That this Hon'ble Court be pleased to issue a Writ of Prohibition, or a Writ in the nature of Prohibition, or any other appropriate writ, order or direction, leading to the passing of the Order dated 24th March, 2023 (Exhibit V hereto) and the Order dated 9th February, 2023 (Exhibit AA hereto) and after going into the legality, validity and propriety thereof, to quash and set aside the same to the extent they seek to arbitrarily impose the condition of commencing production and dispatch on or before 28th March, 2024. (f) For a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction under Artic