Short Term Permit For Extraction Of Minor Minerals Can Be Granted On Application Made To Competent Authority, Public Auction Not Required: Bombay HC

A bench of Justices A.S. Chandurkar and M.S. Jawalkar held,

"it was not the intention of the State that short term permit for minor minerals should be granted by way of public auction. The mode of granting such permit on an application made has been retained."

The Court heard a group of petitioners, each claiming to hold permission to operate stone crushers. The petitioners were informed by the Additional Collector that in view of Government Resolution dated 23.01.2019 grant of short term permit would be permissible only through e-auction. For that reason, the request made by the petitioners for grant of short term permit came to be refused. Being aggrieved by the issuance of such communication the petitioners challenged the orders passed in that regard.

Arguments

Petitioners submitted that the Additional Collector by misconstruing the provisions of Rule 59 of the Rules of 2013 along with Government Resolution dated 23.01.2019 has refused to grant short term permit for excavation of minor minerals.

It was submitted that Rule 9 of the Rules of 2013 prescribes the mode of granting quarry lease either on receipt of an application or by way of public auction. Whereas, under Rule 59 it was submitted that for grant of short term permit to extract any minor mineral it was necessary only to make an application to the Competent Authority and the said Rule did not provide for conducting any auction in that regard.

It was further submitted that while amending the Rules of 2013, Rule 9 was substituted making it obligatory on the part of the Competent Authority to grant quarry lease by way of public auction. However, Rule 59 was not amended. Further, Rule 59 began with the use of a non obstante clause and therefore there was no occasion to apply the provisions of Rule 9 while granting short term permit for excavation of minor minerals.

The respondents countered that under Section 15 of the Mines and Mineral (Development and Regulation) Act, 1957 (the Act of 1957) the State Government was empowered to make Rules in respect of minor mineral. The Rules of 2013 were accordingly framed. As per Rule 9 a quarry lease could be granted after holding public auction. The same modality was to be followed for grant of short term quarry permit.

Findings

The bench regarded the relevant provisions and stated that it becomes instantly clear that reference to grant by way of public auction can be found in Rules 9(1), 68(1) and 70. However, Rule 59 merely refers to an application to be made to the Competent Officer for grant of quarry permit.

"On a plain reading of the aforesaid Rules, it is obvious that the procedure for grant of quarry lease under Rule 9 as amended is distinct from the procedure for grant of short term permit under Rule 59. The Forms prescribed under the Rules of 2013 are also distinct. Moreover, Rule 59(1) states that "notwithstanding anything contained in the foregoing rules,……." Rule 59 (1) thus is intended to operate notwithstanding anything contained in the foregoing rules including Rule 9," it said.

It further concurred with the Petitioner's submission that Rule 59 has not been amended and it continues to operate in its earlier form. Thus after amendment the distinction between Rule 9(1) and Rule 59(1) becomes more obvious and it is thus clear that it was not the intention of the State that short term permit for minor minerals should be granted by way of public auction. The mode of granting such permit on an application made has been retained.

The bench noted that a complete reading of this Government Resolution indicates that it lays down the procedure for conduct of auctions for grant of quarry lease under Rule 9 of the Rules of 2013. In the entire Government Resolution reference can be found only to the modality prescribed by Rule 9 and other ancillary Rules in that regard. There is no reference whatsoever to Rule 59 which empowers grant of short term permits.

Thus, it held that in the absence of any provision in Rule 59(1) to grant short term quarry permit by holding public auction, the same cannot be imported by referring to the Government Resolution.

The bench stated, "Having found that short term quarry permit under Rule 59(1) of the Rules of 2013 can be granted on an application being made to the Competent Authority, we find that the application made by the petitioners herein are not in accordance with Form P. Rule 61(1) of the Rules of 2013 prescribes the nature of application to be made for grant of quarry permits and therefore if the petitioners seek quarry permit they would be required to apply as per the provisions of Rule 61(1) of the Rules of 2013 and Form P thereof. However rejection of the application as made by the petitioners is for the reason that grant of quarry permits has to be as per public auction which reason has been found to be incorrect. Incidentally, we may observe that holding of public auction would always be preferable than any grant being made on the basis of an application. However, for that purpose there ought to be some statutory provision in that regard which is however absent in Rule 59 of the Rules of 2013."

The bench set aside the impugned orders refusing to grant short term quarry permit and held that grant of quarry permits under Rule 59(1) would be pursuant to application made in Form P to the Competent Authority and not by public auction since there is no such requirement in Rule 59 of the Rules of 2013. Government Resolution dated 23.01.2019 is not applicable to grant of quarry permits under Rule 59 of the Rules of 2013.

Case Title : Shrikrupa Stone Crusher v State of Maharashtra and ors.

Citation : 2022 LiveLaw (Bom) 93