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Tuesday, April 5, 2016

This Court by its order dated 16.5.2014, in Common Cause v. Union of India, (2014) 14 SCC 155, restrained 102 mining leaseholders from carrying on any mining operations. The above order was passed on account of the fact, that none of these leaseholders were in possession of clearances/approvals/consent, required for carrying on the mining operations. The above order dated 16.5.2014, granted liberty to the leaseholders whose operations were suspended, to move this Court after obtaining the requisite clearances/approvals/consent, whereupon this Court would, on being satisfied, revoke the suspension order.= we summarise our conclusions as under: (i) A leaseholder would have a subsisting mining lease, if the period of the original grant was still in currency on 12.1.2015. Additionally, a leaseholder whose original lease has since expired, would still have a subsisting lease, if the original lease having been renewed, the renewal period was still in currency on 12.1.2015. Such a leaseholder, would be entitled to the benefit of Section 8A of the amended MMDR Act. (ii) A leaseholder who had not moved an application for renewal of a mining lease (which was due to expire, prior to 12.1.2015), at least twelve months before the existing lease was due to expire, under the provisions of the unamended MMDR Act and the Mineral Concession Rules, will be considered as not a valid/subsisting leaseholder, after the expiry of the lease period. The provisions of the amended MMDR Act will therefore not enure to the benefit of such leaseholder. (iii) A leaseholder who has moved an application for renewal (of the original/first or subsequent renewal) of a mining lease, at least twelve months before the existing lease was due to expire, and on consideration, such an application has been rejected, will be considered as not a valid/subsisting leaseholder. The provisions of the amended Section 8A of the MMDR Act will not enure to the benefit of such leaseholder, because of the express exclusion contemplated for the above exigency, under Section 8A(9) of the amended MMDR Act. (iv) A leaseholder who has moved an application for “first renewal” of the original mining lease, at least twelve months before the original lease was due to expire, and such application has not been rejected, will be considered to be a valid leaseholder having a subsisting right to carry on mining operations, till the expiry of two years after 18.7.2014, i.e., up to 17.7.2016, as is apparent from a conjoint reading of the unamended and amended Rule 24A of the Mineral Concession Rules. Such leaseholder would have the benefit of sub-sections (5) and (6) of Section 8A of the amended MMDR Act. (v) A leaseholder who had moved a second (third or subsequent) renewal application under Section 8(3) of the unamended MMDR Act, at least twelve months before the renewed lease was due to expire, and whose application had not been considered and rejected (though not entitled to any benefit under the unamended Section 8A of the MMDR Act and the amended Rule 24A(6) of the Mineral Concession Rules) up to 12.1.2015, would still have the benefit of sub-sections (5) and (6) of Section 8A of the amended MMDR Act, in view of the situation sought to be remedied by the Mines and Minerals (Development and Regulation) Amendment Act, 2015. (vi) Consequent upon the amendment of Section 8A of the MMDR Act, the regime introduced through sub-sections (5) and (6) thereof, provides for three contingencies where benefits have been extended to leaseholders whose lease period had earlier been extended by a renewal. Firstly, for a leaseholder whose renewal period had expired before 12.1.2015, and the leaseholder had moved an application for renewal at least twelve months before the leaseholder’s existing lease was due to expire, and whose application has not been considered and rejected, the lease period would stand extended up to 31.3.2030/31.3.2020 (in the case of captive/non- captive mines, respectively). Additionally, a leaseholder whose period of renewal would expire after 12.1.2015, but before 31.3.2030/31.3.2020, the lease period would stand extended up to 31.3.2030/31.3.2020 (in the case of captive/non-captive mines, respectively). Secondly, where the renewal of the mining lease already extends to a period beyond 31.3.2030/31.3.2020 (in the case of captive/non-captive mines, respectively), the lease period of such leaseholders, would continue up to the actual period contemplated by the renewal order. Thirdly, a leaseholder would have the benefit of treating the original lease period as of fifty years. Accordingly, even during the renewal period, if the period of the mining lease would get extended (beyond the renewal period) by treating the original lease as of fifty years, the leaseholder would be entitled to such benefit. Out of the above three contingencies provided under sub-sections (5) and (6) of Section 8A, the contingency as would extend the lease period farthest, would enure to the benefit of the leaseholder. (vii) Based on the interpretation placed by us on Section 4A(4) of the MMDR Act, and Rule 28 of the Mineral Concession Rules, we can draw the following conclusions. Firstly, unless an order is passed by the State Government declaring, that a mining lease has lapsed, the mining lease would be deemed to be subsisting, up to the date of expiry of the lease period provided by the lease document. Secondly, in situations wherein an application has been filed by a leaseholder, when he is not in a position to (or for actually not) carrying on mining operations, for a continuous period of two years, the lease period will not be deemed to have lapsed, till an order is passed by the State Government on such application. Where no order has been passed, the lease shall be deemed to have been extended beyond the original lease period, for a further period of two years. Thirdly, a leaseholder having suffered a lapse, is disentitled to any benefit of the amended MMDR Act, because of the express exclusion contemplated under Section 8A(9) of the amended MMDR Act.


                                                                “Reportable”

                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                    WRIT PETITION (CIVIL) NO. 114 OF 2014

Common Cause                                      … Petitioner
                                   versus
Union of India and others                         … Respondents

                                    With

                    WRIT PETITION (CIVIL) NO. 194 OF 2014

Prafulla Samantra and another                     … Petitioners
                                   versus
Union of India and others                         … Respondents


                               J U D G M E N T

Jagdish Singh Khehar, J.

1.          This Court by its order dated  16.5.2014,  in  Common  Cause  v.
Union of India, (2014) 14 SCC 155, restrained 102 mining  leaseholders  from
carrying on any mining operations.  The above order was  passed  on  account
of the  fact,  that  none  of  these  leaseholders  were  in  possession  of
clearances/approvals/consent,  required   for   carrying   on   the   mining
operations.  The  above  order  dated  16.5.2014,  granted  liberty  to  the
leaseholders whose operations were  suspended,  to  move  this  Court  after
obtaining the requisite clearances/approvals/consent, whereupon  this  Court
would, on being satisfied, revoke the suspension order.
2.          A number of applications came to  be  filed  before  this  Court
seeking revocation of the above order of suspension, wherein  the  concerned
applicants     asserted,      that      they      had      obtained      all
clearances/approvals/consent,  and  further  that,  they  were  now  legally
eligible to  recommence  mining  operations.   During  the  course  of  such
consideration at our hands, Mr. A.D.N. Rao, learned  amicus  curiae  pointed
out, that the question  of  granting  permission  to  the  leaseholders   to
recommence mining operations would arise, only if the  leaseholders  have  a
subsisting  mining  lease.   It  was  therefore   submitted,   that   before
determining the legitimacy of the  claim  raised  by  the  applicants,  this
Court should first examine, whether the applicants have a  subsisting  right
to carry on mining operation, under a valid lease.
3.          This submission advanced at the  hands  of  the  learned  amicus
curiae,  was  strongly  contested  by  learned  counsel   representing   the
applicants.  They invited our attention to paragraph 4 of the  order   dated
16.5.2014, passed in the Common Cause case, so  as  to  contend,  that  this
Court had not postulated such a precondition, and therefore, the  submission
advanced at the hands of the learned  amicus  curiae,  should  be  rejected.
Paragraph 4 aforementioned, is extracted hereunder:
“4. We have considered the report  dated  25.4.2014  of  the  CEC,  and  the
submissions made by learned Counsel appearing for different parties, and  we
find that 102 mining leases do not have requisite environmental  clearances,
approvals under the Forest (Conservation) Act, 1980,  approved  Mining  Plan
and/or Consent to Operate. A list of these 102 mining leases is  annexed  to
the report of the CEC as Annexure R-2. The CEC has, however, stated  in  the
report  that  mining  operations  in  these  102  mining  leases  have  been
suspended and these 102 mining leases have been  classified  as  non-working
leases. We direct that mining operations in these 102 mining  leases  listed
in Annexure R-2 of the report of the CEC  shall  remain  suspended,  but  it
will be  open  to  such  lessees  to  move  the  concerned  authorities  for
environmental clearances, approval  under  the  Forest  (Conservation)  Act,
1980, approval of Mining Plan or Consent to Operate  and  as  and  when  the
mining lessees are able to obtain all the clearances/approval/consent,  they
may move this Court for modification of this interim order  in  relation  to
their cases.”

                         (highlighting – as per emphasis of learned counsel)

4.          Having perused the  position  expressed  by  this  Court,  while
suspending mining operations with reference to  102  mining  leases,  it  is
apparent, that the said direction was issued  for  the  sole  consideration,
that  the  concerned  leaseholders   were   not   in   possession   of   all
clearances/approvals/consent.  And as such,  they  were  permitted  to  move
applications  before  this  Court,  for  modification  of   the   order   of
suspension, as and when all clearances/approvals/consent were  obtained.  It
is however relevant to notice, that such clearances, approvals  and  consent
can be meaningful to the applicants, only if  they  are  with  reference  to
subsisting  mining  lease(s).   In  case  a  leaseholder  does  not  have  a
subsisting mining lease, he is precluded under the provisions of  the  Mines
and Minerals (Development and Regulation) Act,  1957  (hereinafter  referred
to as, the MMDR Act),  from  carrying  on  any  mining  operations.   It  is
therefore, that we accept the submission advanced by Mr. A.D.N. Rao. And  it
is also for the above reason, that we required learned counsel  representing
the mining leaseholders, desirous of  lifting  the  suspension  order  dated
16.5.2014, to  substantiate  whether  or  not,  they  were  possessed  of  a
subsisting mining lease.
5.           To   commence   with,   we   were   of   the   view,   that   a
decision/conclusion in this behalf, would emerge from  the  actual  document
by which the mining lease had been granted (or renewed).  During the  course
of hearing it emerged, that the  deduction  as  to  whether  the  applicant-
leaseholders  were  possessed  of  subsisting   mining   lease(s),   was   a
complicated question of fact and law.  Since the same has  to  be  resolved,
before the claim of the applicants for  revoking  the  suspension  order  (–
dated 16.5.2014) can be accepted, we would endeavour to lay down  parameters
for such determination.
6.          A leaseholder would have  a  subsisting  mining  lease,  if  the
period of the original grant is in currency.   Additionally,  a  leaseholder
whose original lease has since expired, would have a  subsisting  lease,  if
the original lease having been renewed, the renewal period is  in  currency.

7.          It is also essential to notice,  that  to  start  with,  renewal
could be granted to a mining leaseholder, any number  of  times,  under  the
unamended Section 8 of the MMDR Act.  The duration  of  the  original  grant
(of the mining lease), as also, the duration of renewals, and the number  of
permissible renewals, that a leaseholder can seek, have undergone a  change.
 We shall dwell upon the instant aspect of the matter in the instant  order,
as it has a vital bearing on  the  issue,  whether  or  not  the  applicant-
leaseholders are possessed of subsisting mining leases.  For  this,  in  the
first instance, reference may be made to the provision regulating the  grant
of a mining lease, as also, renewal of a mining lease, namely, Section 8  of
the MMDR  Act.   The  instant  provision,  in  the  manner  it  came  to  be
structured after being amended in 1994 (which  position  remained  unamended
till 18.7.2014), is extracted hereunder:
“8. Periods for which mining leases may be granted or renewed.—
(1) The maximum period for which a mining lease may  be  granted  shall  not
exceed thirty years:
Provided that the minimum period for which any  such  mining  lease  may  be
granted shall not be less than twenty years;
(2) A mining lease may be renewed for a period not exceeding twenty years.
(3) Notwithstanding anything contained in  sub-section  (2),  if  the  State
Government is of opinion that in the interests of mineral development it  is
necessary so to do, it may,  for  reasons  to  be  recorded,  authorise  the
renewal of a mining lease in respect of minerals  not  specified  in  Part-A
and Part-B of the First  Schedule  for  a  further  period  or  periods  not
exceeding twenty years in each case.
(4) Notwithstanding anything contained in sub-section  (2)  and  sub-section
(3), no mining lease granted in respect of mineral specified  in  Part-A  or
Part-B of the First Schedule shall  be  renewed  except  with  the  previous
approval of the Central Government.”
                                                          (emphasis is ours)

A perusal of Section 8(1) extracted above reveals, that the  maximum  period
for which a mining lease could be granted, would not  exceed  thirty  years.
After the expiry of the original grant, the mining lease  could  be  renewed
in the first instance for a  further  period  not  exceeding  twenty  years,
under Section 8(2).  For all intents and purposes, the renewal  contemplated
under Section 8(2), shall be  referred  to  as  the  “first  renewal”.   The
“first renewal”, required a clearance  of  the  State  Government,  and  the
approval of the Central Government. Further renewals, after  the  expiry  of
first renewal granted under Section 8(2), were also  permissible,  and  were
provided for under Section 8(3) of the MMDR Act.  The renewal(s)  postulated
under Section 8(3),  for  all  intents  and  purposes,  shall  be  described
hereinafter,  as  the  “second  (or  third,  or  fourth  …)  renewal”.   The
renewal(s) under Section 8(3) could be granted only if the State  Government
expressed its satisfaction, that the  grant  of  the  second  or  subsequent
renewal, would be in the interest of mineral development.  Furthermore,  the
“second renewal” or still further renewal(s), had to also have the  approval
of the Central Government.  Even though the period of  subsequent  renewals,
is of no significance, insofar as the present controversy is  concerned,  it
may be mentioned, that all subsequent renewals including the  second,  third
or further renewals, could individually extend to  a  period  not  exceeding
twenty years.
8.          The interpretation placed by us, on Section 8 of  the  MMDR  Act
(as it existed in  1994),  finds  support  from  Rule  24A  of  the  Mineral
Concession Rules, 1960 (hereinafter referred to as, the  Mineral  Concession
Rules) – as the rule existed prior to 18.7.2014.  Rule 24A in the manner  in
which it was then structured, is extracted below:
“24A. Renewal of mining lease. —(1) An application  for  the  renewal  of  a
mining lease shall be made to the State  Government  in  Form  J,  at  least
twelve months before the date on which the lease is due to  expire,  through
such officer or authority as  the  State  Government  may  specify  in  this
behalf.
(2) The renewal or renewals of a  mining  lease  granted  in  respect  of  a
mineral specified in Part A and Part B of the First Schedule to the Act  may
be granted by the  State  Government  with  the  previous  approval  of  the
Central Government.
(3) The renewal or renewals of a  mining  lease  granted  in  respect  of  a
mineral not specified in Part A and Part B of the First Schedule to the  Act
may be granted by the State Government:
Provided that before granting approval for second or subsequent  renewal  of
a  mining  lease,  the  State  Government  shall  seek  a  report  from  the
Controller General, Indian Bureau of Mines, as to whether  it  would  be  in
the interest of mineral development to  grant  the  renewal  of  the  mining
lease.
Provided further that in case a  report  is  not  received  from  Controller
General, Indian Bureau of Mines in a period of three months  of  receipt  of
the communication from the State Government, it would  be  deemed  that  the
Indian Bureau of Mines has no adverse comments to offer regarding the  grant
of the renewal of mining lease.
(4) An application for the renewal of a mining lease shall  be  disposed  of
within a period of six months from the date of its receipt.
(5) If an application is not disposed of within the period specified in sub-
rule (4) it shall be deemed to have been refused.
(6) If an application for renewal of a mining lease  made  within  the  time
referred to in sub-rule (1) is not  disposed  of  by  the  State  Government
before the date of expiry of the lease, the period of that  lease  shall  be
deemed to have been extended by a further period till the  State  Government
passes order thereon.
xxx              xxx              xxx”
                                                          (emphasis is ours)
A perusal of sub-rule (1) of Rule  24A  reveals,  that  an  application  for
renewal of a mining lease, had to be made at least twelve months before  the
date of expiry of the existing mining lease.  It is therefore essential  for
us to record, that unless such an application had been made at least  twelve
months before the date of expiry of an existing mining lease under Rule  24A
of the Mineral Concession Rules, the same could not have  been  entertained.
And also that, the term of the mining lease held by  the  leaseholder  would
be deemed to have come to an end, on the expiry of the  period  depicted  in
the lease document, if such an application had not been preferred.
9.          The next relevant provision is sub-rule (4) of Rule 24A  of  the
Mineral  Concession  Rules.   The  instant  sub-rule   required,   that   an
application for renewal, would be disposed of within six  months,  from  the
date of receipt of such application.  We have  extracted  hereinabove,  sub-
rule (5) of Rule 24A, wherein it  was  mandated,  that  an  application  for
renewal, which had not been disposed of within the period of six months,  as
provided for under Rule 24A(4) of the Mineral  Concession  Rules,  would  be
deemed to have been refused.  It is however relevant  to  notice,  that  the
aforementioned sub-rule (5) came to be omitted by an amendment, with  effect
from 7.1.1993.  It is significant to record, that sub-rule (6)  came  to  be
substituted by an amendment, with effect from 27.9.1994.   Sub-rule  (6)  of
Rule 24A of the Mineral Concession Rules, is of extreme importance  for  the
determination, whether the applicant-leaseholder is possessed of  subsisting
mining lease because a large number of applicants rely on the  instant  rule
in support of their claim for being possessed of a subsisting mining  lease.
Sub-rule (6) aforementioned postulated, that if an application  for  renewal
of a mining lease (made within twelve months, before the date on  which  the
existing lease was to expire), had not been disposed  of  by  the  competent
authority, the period of lease would be deemed to have been extended,  by  a
further period till the State Government passed an order  disposing  of  the
renewal application. It is therefore, that  the  right  to  continue  mining
operations would seemingly continue ad  infinitum,  for  the  simple  reason
that the State Government which was the competent authority, had not  passed
any order(s) on most of the pending applications seeking renewal.
10.   An extremely significant event pertaining to the statutory  regime  of
mining leases under the MMDR Act, and the  Mineral  Concession  Rules,  took
place on 21.4.2014, when this Court passed an order  in  Goa  Foundation  v.
Union of India, (2014) 6 SCC 590, and held as under:
“27. Sub-section (1) of  Section 8 of  the  MMDR  Act,  which  provides  the
maximum and minimum periods for which a mining lease  may  be  granted  will
not apply to  deemed  mining  leases  in  Goa  because  sub-section  (1)  of
Section 5 of the Abolition Act provides  that  the  period  of  such  deemed
mining  leases  will  extend  upto  six  months  from  the  date  of  assent
notwithstanding  anything  contained  in  the  MMDR  Act.  In  other  words,
notwithstanding anything contained in sub-section (1)  of  Section 8 of  the
MMDR Act, the period of a deemed mining  lease  in  Goa  was  to  expire  on
22.11.1987 (six months from the date of assent). Under  sub-section  (2)  of
Section 8 of the MMDR Act, a mining lease may be renewed for  a  period  not
exceeding twenty years. Sub-section  (3)  of  Section 8,  however,  provides
that notwithstanding anything contained in sub-section  (2),  if  the  State
Government is of the opinion that in the interest  of  mineral  development,
it is necessary so to do, it may for reasons to be recorded,  authorise  the
renewal of a mining lease in respect of minerals not  specified  in  Part  A
and Part B of the First  Schedule  for  a  further  period  or  periods  not
exceeding twenty years in each case. Thus, renewal beyond the first  renewal
for a period of twenty  years  is  conditional  upon  the  State  Government
forming an opinion that in  the  interest  of  mineral  development,  it  is
necessary to do so and also conditional upon the State Government  recording
reasons for such renewal of a mining lease in respect of iron ore  which  is
not specified in Part A and Part B of the First Schedule. In TISCO  Ltd.  v.
Union of India (1996) 9 SCC 709, this Court has held that  the  language  of
sub-section (3) of Section 8 is quite clear that ordinarily a lease  is  not
to be granted beyond the time specified in sub-section (2) and only  if  the
Government is of the view that it  would  be  in  the  interest  of  mineral
development, it is empowered to renew  lease  of  a  lessee  for  a  further
period after recording sound reasons for doing so. This  Court  has  further
held in the aforesaid case that this measure has been  incorporated  in  the
legislative scheme as a safeguard against arbitrariness and the  letter  and
spirit of the law must be adhered to in a strict manner.
28. The MC Rules have been made under Section 13 of  the  MMDR  Act  by  the
Central Government and obviously could  not  have  been  made  in  a  manner
inconsistent with the provisions of the Act. Sub-rule (6)  of  Rule  24A  of
the MC Rules provides that:

“24-A.(6) If an application for the renewal of a mining  lease  made  within
the time referred to in sub-rule  (1)  is  not  disposed  of  by  the  State
Government before the date of expiry of the lease, the period of that  lease
shall be deemed to have been extended by a further  period  till  the  State
Government passes order thereon.”

This  sub-rule  cannot  apply  to  a  renewal  under  sub-section   (3)   of
Section 8 of the MMDR Act because the renewal under  this  provision  cannot
be made without express orders of the  State  Government  recording  reasons
for renewal in the interest of mineral development. In other words, so  long
as there is a right of renewal in the lessee which in the case of  a  mining
lease is for a maximum period  of  twenty  years,  the  provision  regarding
deemed extension of a lease can operate, but if the right of  renewal  of  a
mining lease is dependent upon the State Government forming an opinion  that
in the interest of mineral development it is necessary  to  do  so  and  the
State Government recording reasons therefor, a  provision  regarding  deemed
extension till orders are passed by the State Government on the  application
of renewal cannot apply. We are, therefore, of  the  opinion  that  sub-rule
(6) of Rule 24A of the MC Rules will apply to a case of first renewal  under
sub-section (2) of Section 8 of the MMDR  Act  other  than  a  case  covered
under sub-rule (9) of Rule 24A of the  MC  Rules,  but  will  not  apply  to
renewal under sub-section (3) of Section 8 of the MMDR  Act.  In  our  view,
the deemed mining leases of the lessees in Goa expired on  22.11.1987  under
sub-section (1) of Section 5 of the Abolition Act  and  the  maximum  of  20
years renewal period of the deemed mining leases in Goa as provided in  sub-
section (2) of Section 8 of the MMDR Act read with sub-rules (8) and (9)  of
Rule 24A of the MC Rules expired on 22.11.2007.”
                                                          (emphasis is ours)

11.   At this juncture, it would be necessary to notice, that prior  to  the
decision  in  the  Goa  Foundation  case,   the   State   Government   while
interpreting sub-rule (6) of Rule 24A, had  been  allowing  leaseholders  to
continue mining  operations  without  any  outer  limit.   In  view  of  the
conclusions drawn in the Goa Foundation  case,  it  came  to  be  rightfully
understood, that such operations could go on (within  the  mandate  of  Rule
24A(6), under which such application  was  made)  till  the  expiry  of  the
maximum period postulated for the first  renewal,  i.e.,  for  a  period  of
twenty years.  The second and subsequent renewal(s)  were  held  to  be  not
automatic.   Because  the  second  and  subsequent  renewals  required   the
satisfaction of the  State  Government,  by  way  of  recorded  reasons,  as
noticed hereinabove. Therefore, after the judgment  in  the  Goa  Foundation
case, it came to be understood, that in the absence of an express  order  of
second  or  subsequent  renewal(s),  a  mining  lease  would  expire   after
completion of the period of first renewal.
12.   In order to give effect to the conclusions recorded by this  Court  in
the Goa Foundation case, Rule 24A(6) came to be amended on  18.7.2014.   The
above amendment is reproduced below:
“Rule 24-A
            xxx             xxx              xxx
(6) If an application for first renewal of a mining lease  made  within  the
time referred to in sub-rule (1) is not disposed of by the State  Government
before the date of expiry of the lease, the period of that  lease  shall  be
deemed to have been extended by a further period of two years  or  till  the
State Government passes order thereon, whichever is earlier:

Provided that the leases where applications  for  first  renewal  of  mining
lease have been made to  the  State  Government  and  which  have  not  been
disposed of by the State Government before the date of expiry of  lease  and
are pending for disposal  as  on  the  date  of  the  notification  of  this
amendment, shall be deemed to have been extended by a further period of  two
years from the date of coming into force  of  this  amendment  or  till  the
State Government passes order thereon or the date of expiry of  the  maximum
period allowed for first renewal, whichever is the earliest:

Provided further that the provisions of this sub-rule  shall  not  apply  to
renewal under sub-section (3)  of  Section  8  of  the  Mines  and  Minerals
(Development and Regulation) Act, 1957.”
                                                          (emphasis is ours)

The above amendment, has  to  be  carefully  understood.   Undoubtedly,  the
amendment of sub-rule (6) of Rule 24A of the Mineral  Concession  Rules  now
provides, that the period  of  mining  operations  would  be  deemed  to  be
extended for a maximum period of two years, after the expiry of  the  period
of the original grant, unless  of  course,  the  State  Government  takes  a
conscious decision on the application for renewal.   We  are  of  the  view,
that  the  instant  provision,  has  to  be  read  in  continuation  of  the
erstwhile/previous Rule 24A (which  subsisted  till  the  instant  amendment
came into effect on 18.7.2014).   The  unamended  provision,  postulated  an
unlimited period of mining lease, in the absence of a  determinative  order,
on an application for renewal.  Therefore, even if the  original  lease  had
expired many years ago, but if a  renewal  application  had  been  preferred
within the permissible time contemplated under Rule 24A(1), the  same  would
have continued to  subsist,  till  the  instant  amendment  took  effect  on
18.7.2014.  The importance of this conclusion is for the  reason,  that  the
proviso to new Rule 24A(6) – amended  on  18.7.2014,  consciously  provided,
that the lease period where  applications  had  been  filed  seeking  “first
renewal”, would be deemed to have been extended for a further period of  two
years, from the date of coming into  force  of  the  amended  sub-rule  (6).
Accordingly, in all cases wherein the “first renewal” had been  sought,  but
not determined, the mining operations were extended, by  operation  of  law,
till 18.7.2014.
13.   The case of most of the applicants before this  Court  is,  that  they
had moved applications within the time permissible under  Rule  24A(1),  and
as  such, on account  of  the  unamended  sub-rule  (6)  of  Rule  24A,  and
thereafter, on the basis of the amended sub-rule  (6)  of  Rule  24A,  their
right to continue mining operations, would be deemed to have  been  extended
up to 18.7.2016.  We find that their claim is valid, and  accept  the  same,
insofar as the legal position is  concerned,  but  only  with  reference  to
“first renewals”.  We may hasten to explain, that the instant  determination
emerges from an interpretation of the unamended  and  amended  Rule  24A(6).
Whether  subsequent  amendments  would  alter  the   situation,   is   being
determined hereinafter.
14.   One clarification is imperative at this stage.  After the  passing  of
the order on 21.4.2014,  in  the  Goa  Foundation  case,  subsisting  “first
renewals” under Rule 24A, would  expire  on  the  completion  of  a  further
period of twenty years, after the expiry of the  period  contemplated  under
the  original  grant,  or  as  interpreted  above.   There  was  no  similar
automatic grant  of  “second  renewals”,  after  the  Goa  Foundation  case.
Therefore,  for  all  intents  and   purposes,   the   conclusion   recorded
hereinabove, should be deemed to be relevant  only  with  reference  to  the
grant of “first renewals”. It is necessary to reiterate,  that  in  the  Goa
Foundation case, this Court had held, that second renewals would be  subject
to an order passed by the State Government recording reasons that it was  in
the interest of mineral development to do so.   Needless to mention, that  a
second or subsequent renewal also required, the  previous  approval  of  the
Central Government – as provided for under Section 8(4)  of  the  MMDR  Act.
The amendment to Rule 24A made on 18.7.2014, more particularly,  the  second
proviso to sub-rule (6), leaves no room for any doubt,  that  the  automatic
extension postulated with reference to the first renewal,  would  not  apply
to the second or subsequent renewals.  It is therefore necessary to  further
conclude, that in cases of second and subsequent renewals, the amended  Rule
24A(6) would not extend the lease period for a further period of two  years,
from the date of amendment.  Therefore, for all  intents  and  purposes,  in
relation to renewal sought under Section 8(3) of the  MMDR  Act  (read  with
Rule 24A(6) of the Mineral Concession Rules –  amended  on  18.7.2014),  all
second renewals which were assumed to be subsisting  by  State  Governments,
would expire  with  effect  from  the  date  of  the  judgment  in  the  Goa
Foundation  case,  i.e.,  21.4.2014,  and  expressly,   with   effect   from
18.7.2014, when the second proviso  to  Rule  24A(6)  provided  accordingly.
Unless of course, the Government had passed an express order in writing,  as
mandated under Section 8(3)  of  the  MMDR  Act,  extending  the  subsisting
mining lease by a second or subsequent renewal.
15.   On 16.5.2014, this Court (in the Common Cause case), passed  an  order
requiring the State  Government  to  dispose  of  pending  applications  for
second and subsequent renewals, within six months.  The  operative  part  of
the above order is being extracted below:
“10. After considering the report of the CEC as well as the  submissions  on
behalf of the parties, we direct as an interim measure that these 26  leases
operating as second and subsequent renewals without any  express  orders  of
renewal passed by the State Government will not be  allowed  to  operate  by
the State Government until express orders are passed  in  terms  of  Section
8(3) of the Mines and Minerals (Development and Regulation)  Act,  1957  and
we also direct that all renewal  applications  under  Section  8(3)  of  the
Mines  and  Minerals  (Development  and  Regulation)  Act,  1957   will   be
considered and disposed of by the State Government within  six  months  from
today. We further direct that the State Government will consider  first  the
renewal applications in respect of leases which  were  granted  for  captive
mining for providing iron or manganese ore as raw  material  for  industries
and only thereafter consider the renewal  applications  in  respect  of  the
other leases. In any case, the State Government will ensure that the  entire
process of consideration and disposal of renewal applications under  Section
8(3) of the Act  is  completed  within  six  months  from  today.  With  the
aforesaid interim directions, the interim matter stand disposed of.”
                                                          (emphasis is ours)

It seems, that the above direction was breached, as the  State  Governments,
seemingly had no facility or potential, to comply with it.   Resultantly,  a
further order came to be passed in IA No.21 of 2014, which had  been  filed,
for extension of time.  The order granting further  time  of  three  months,
dated 16.5.2014, is extracted hereunder:
“I.A. No.21 of 2014
After hearing Shri L. Nageswara Rao, learned senior  counsel  appearing  for
the State of Orissa, we deem it appropriate  to  grant  them  another  three
months' time from today to comply with the order dated 16.05.2014.
We reserve liberty to all the private respondents to object  to  the  orders
that may be passed  by  the  State  Government  while  complying  with  this
Court's order dated 16.05.2014.
I.A. No.21 of 2014 is disposed of accordingly.”
                                                          (emphasis is ours)

16.   The Parliament was alive to the predicament of the State  Governments.
 It was also felt, that the regime of  grant  of  mining  leases  and  their
renewal(s)  needed to be changed, by introducing uniformity in the  process.
 It is therefore, that Section 8A was amended.  The  instant  amendment  was
inserted in the MMDR Act with effect from 12.1.2015.  Section 8A  introduced
through the above amendment, is being extracted hereunder:
“8A. Period of grant of  a  mining  lease  for  minerals  other  than  coal,
lignite and atomic minerals. — (1) The  provisions  of  this  section  shall
apply to minerals other than those specified in Part A and  Part  B  of  the
First Schedule.
(2) On and from the date of the  commencement  of  the  Mines  and  Minerals
(Development and Regulation) Amendment Act, 2015, all  mining  leases  shall
be granted for the period of fifty years.
(3) All mining leases granted before  the  commencement  of  the  Mines  and
Minerals (Development and Regulation) Amendment Act, 2015  shall  be  deemed
to have been granted for a period of fifty years.
(4) On the expiry of the lease  period,  the  lease  shall  be  put  up  for
auction as per the procedure specified in this Act.
(5) Notwithstanding anything contained in sub-sections  (2),  (3)  and  sub-
section (4), the period of lease granted before the date of commencement  of
the Mines and Minerals (Development and  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 on the  31st  March,  2030  with
effect from the date of expiry of the period of renewal last  made  or  till
the completion of renewal period, if any, or a period of  fifty  years  from
the date of grant  of  such  lease,  whichever  is  later,  subject  to  the
condition that all the terms and conditions of the lease have been  complied
with.
(6) Notwithstanding anything contained in sub-sections  (2),  (3)  and  sub-
section (4), the period of lease granted before the date of commencement  of
the Mines and Minerals (Development and  Regulation)  Amendment  Act,  2015,
where mineral is used for other than captive purpose, shall be extended  and
be deemed to have been extended up to a period ending  on  the  31st  March,
2020 with effect from the date of expiry of the period of renewal last  made
or till the completion of renewal period, if  any,  or  a  period  of  fifty
years from the date of grant of such lease, whichever is later,  subject  to
the condition that all the terms and  conditions  of  the  lease  have  been
complied with.
(7) Any holder of a  lease  granted,  where  mineral  is  used  for  captive
purpose, shall have the right of first refusal at the time of  auction  held
for such lease after the expiry of the lease period.
(8) Notwithstanding anything  contained  in  this  section,  the  period  of
mining leases, including existing mining leases, of Government companies  or
corporations shall be such as may be prescribed by the Central Government.
(9) The provisions  of  this  section,  notwithstanding  anything  contained
therein, shall not apply to a  mining  lease  granted  before  the  date  of
commencement  of  the  Mines  and  Minerals  (Development  and   Regulation)
Amendment Act, 2015, for which renewal has been rejected, or which has  been
determined, or lapsed.”

17.   In terms of Section 8A(2) of the amended MMDR Act, all  future  mining
grants, would be  for  a  uniform  period  of  fifty  years.  Section  8A(3)
envisages, that  all  original  mining  lease  grants,  made  prior  to  the
insertion of Section 8A, in the MMDR Act (with effect from 12.1.2015)  would
also be deemed to have been made for a period of fifty years.
18.   Section 8A(5) pertains to mining leases granted for captive  purposes,
and  is  principally  aimed  at  leaseholders  operating  under  a  renewal.
Section 8A(5) postulates three different contingencies.
Firstly, the period of all mining leases granted  before  12.1.2015  “…shall
be extended and be deemed to have been extended…” up  to  31.3.2030,  “…with
effect from the date of expiry of the period of renewal last made…”.  It  is
apparent, that the question of an “extension”  will  ordinarily  arise  only
after an “expiry”.  Since both the terms –  “extension”  and  “expiry”  find
place in sub-section (5),  we  are  of  the  view,  that  Section  8A(5)  is
attracted even after  the  expiry  of  a  renewal.   The  instant  inference
emerges from the use of the words “expiry of the renewal last made”, in sub-
section (5).  The issue  whether,  Section  8A  would  be  applicable  to  a
subsisting lease as on 12.1.2015 (when the amended MMDR Act  was  notified),
as was the contention of the non-applicant petitioner, will be  examined  in
further detail immediately hereinafter. The  first  contingency,  therefore,
extends to renewed mining leases, which  were  scheduled  to  expire  before
31.3.2030.
Secondly, the use of the phrase – “renewal last made”, leaves  no  room  for
any doubt, that the  instant  second  contingency  presupposes  an  existing
(first, second or subsequent) renewal, in favour of  the  leaseholder.   The
difference between the first and the second contingency is,  the  date  when
the renewal of  the  mining  lease  was  scheduled  to  expire.   The  first
contingency, applies to renewed mining leases,  which  would  expire  before
31.3.2030.  The instant – the second contingency, applies to renewed  mining
leases, which would expire after 31.3.2030.  A perusal of Section 8A of  the
amended MMDR Act reveals, that the second contingency is aimed at  extending
the existing lease period, and not reducing it.  Therefore,  if  the  period
of  the  existing  renewal  would  extend  beyond  31.3.2030,   the   period
contemplated by the renewal itself, has been mandated to be preserved.
Thirdly, the regime sought to be introduced  also  has  a  reference  to  an
original grant.  The scheme/course sought to  be  introduced  under  Section
8A(3) of the  amended  MMDR  Act,  is  intended  to  be  preserved  even  in
situations where a mining leaseholder, is (or has been) carrying  on  mining
operation under a renewal.  Since the original lease period of  fifty  years
has been adopted as the overarching rule, the  third  contingency,  aims  at
allowing the leaseholder, the benefit of treating the original lease  period
as of fifty years.  Therefore,  even  during  the  renewal  period,  if  the
period of mining lease would get extended (beyond the  renewal  period),  by
treating the original lease as of fifty  years,  the  leaseholder  would  be
entitled to the said benefit under the third contingency.
For  the  leases  governed  by  Section  8A(5),  out  of  the  above   three
contingencies, the contingency as would extend the  lease  period  farthest,
would be applicable.
19.   A similar contingency has been provided for under Section  8A(6)  with
reference to mining leases used for non-captive purposes.  Herein also,  the
same three contingencies are  contemplated.   Firstly,  the  period  of  all
renewals expiring before 31.3.2020 “…shall be  extended  and  be  deemed  to
have been extended…” up to 31.3.2020, “…with effect from the date of  expiry
of the period of renewal last made…”.  Secondly, if the  renewal  period  in
any case would have actually stretched beyond  31.3.2020  –  then  till  the
completion of the postulated renewal period.   Thirdly,  for  extending  the
original lease to fifty years, from  the  date  of  grant  of  the  original
lease.  For leases governed by  Section  8A(6)  the  contingency,  as  would
expire last of all, would be applicable  to  the  leaseholder.   No  further
discussion  is  being  recorded  herein,  because  the  discussion  in   the
preceding paragraph, is fully applicable for the interpretation  of  Section
8A(6) of the amended MMDR Act, except  for  the  substitution  of  the  date
31.3.2020 (as under Section 8A(6) of the MMDR Act)  in  place  of  31.3.2030
(as under Section 8A(5) of the MMDR Act).
20.   There is a serious dispute between the rival  parties  with  reference
to the interpretation of Sections 8A(3), 8A(5) and 8A(6) of  the  MMDR  Act.
Whilst the contention of  learned  counsel  appearing  for  the  petitioner-
Common Cause is, that the benefit  of  sub-sections  (3),  (5)  and  (6)  of
Section 8A, will extend only to such mining leases  as  were  subsisting  on
the date of introduction of the amendment – 12.1.2015; it is the  contention
of  learned  counsel  representing  the   leaseholders,   that   the   above
postulation, at the hands of learned  counsel  for  the  non-applicants,  is
wholly misconceived, and  would  result  in  a  misreading  of  the  amended
Section 8A of the MMDR Act.
21.   Insofar as the disputed interpretation of Section 8A of the  MMDR  Act
is concerned, the first contention  advanced  by  learned  counsel  for  the
petitioner, was founded on sub-section (9) of Section  8A.   It  was  urged,
that it was absolutely clear, that the benefit of Section  8A  of  the  MMDR
Act, would not extend to such cases where “renewal had  been  rejected”,  or
where the mining lease had been “determined”, or where the mining lease  had
“lapsed”.  It was asserted,  that  the  expiry  of  the  original  grant  or
renewal, should be understood to mean,  that  the  lease  howsoever  granted
(original, or renewal) had “lapsed”.  And therefore, it was  crystal  clear,
according to learned counsel, that sub-sections (3), (5) and (6) of  Section
8A, would be applicable only to  leaseholders  having  a  subsisting  mining
lease on 12.1.2015.
22.   The contention advanced on behalf of the petitioners, noticed  in  the
foregoing paragraph, has been vehemently opposed by learned counsel for  the
leaseholders.  It was contended on behalf  of  the  leaseholders,  that  the
terms “rejection”, “determination” and “lapse” were terms of  art,  used  to
express different contingencies/situations.  According to  learned  counsel,
these terms are contemplated for different exigencies, under  the  MMDR  Act
(and the Rules framed thereunder).  And  that,  the  said  terms  cannot  be
extended to situations beyond those, for which the same are expressly  used.
 It was therefore asserted,  that  the  expiry  of  the  original  grant  or
renewal, would per se not exclude the applicability of Section 8A.
23.   Insofar as the words “renewal had  been  rejected”  (used  in  Section
8A(9) of the MMDR Act are concerned, it was submitted,  that  it  was  clear
from the words deployed, that the contemplated contingency applied  only  to
a situation where an application for renewal  had  been  rejected.   Namely,
that a renewal of a mining lease had been applied for under sub-section  (2)
or (3) of Section 8 of the MMDR Act, read  with  Rule  24A  of  the  Mineral
Concession Rules, and thereupon, the request for renewal had been  rejected.
 For the term “determination”, reliance was placed on  Rules  27(4),  27(5),
29, 37(3) and Part IX Clause 2, Form K of the Mineral Concession Rules.   It
was  contended,  that  the  term  “determination”  had  been  deployed   for
situations where the lease period could be brought to an end, on account  of
a default having been committed by a leaseholder.  For instance, default  in
the payment of royalty or in the payment of dead rent.   The  default  could
also be of violating the lease conditions envisaged under Rule 27(1) or  (2)
or (3) of the  Mineral  Concession  Rules.   A  mining  lease  can  also  be
determined, if the leaseholder had transferred any right, title or  interest
in a mining lease, in violation of the Mineral Concession Rules.  And for  a
few other defined exigencies.  Insofar as the term “lapse” used  in  Section
8A(9)  is  concerned,  the  same  according  to  learned  counsel  for   the
leaseholders, pertains to exigencies contemplated  under  Section  4A(4)  of
the MMDR Act, and Rules 28 and 28A of the  Mineral  Concession  Rules.   The
term “lapse” has been used only where the leaseholder(s) has/have  committed
default of not being in position to  carry  on  (or  for  not  carrying  on)
mining operations, for a continuous period of  two  years.   On  account  of
either of  the  above  exigencies,  a  mining  lease  under  the  provisions
referred to above, would lapse.
24.   We  do  not  consider  the  necessity  of  extracting  the  particular
provisions relied upon by learned counsel  for  the  leaseholders.   We  are
satisfied in accepting the contention, that  the  terms  “renewal  has  been
rejected”,  “determination”  and  “lapse”  are  terms  used  for   different
contingencies/situations/exigencies under the  MMDR  Act,  and  the  Mineral
Concession Rules.  It is also our view, that these terms are not used  under
the MMDR Act, or under the  Mineral  Concession  Rules,  with  reference  to
expiry of the original grant period, or with reference to the expiry of  the
renewal period.   It  is  therefore  not  possible  for  us  to  accept  the
contention of learned counsel for the petitioner, that Section 8A(9) can  be
the legitimate basis for excluding the  applicability  of  Section  8A,  the
claims of leaseholders, where the period of lease  or  renewal  had  expired
prior to 12.1.2015.
25.   The conclusion drawn by us in the foregoing  paragraph,  also  emerges
from the “Objects and Reasons” of the amended MMDR  Act.   The  purpose  for
which the instant amendment came to be made by the Parliament,  whereby  the
amended Section 8A was  inserted  into  the  MMDR  Act  reveals,  that  past
litigation resulting in different interpretations of the provisions  of  the
MMDR Act, and the alleged hardship caused to the  mining  industry,  due  to
second and subsequent renewals remaining pending with the  State  Government
without any decision, had occasioned the passing of the  instant  amendment.
The above position emerges from the following excerpts of the  statement  of
“Objects and Reasons”:
“3. The mining sector has been subjected  to  numerous  litigations  in  the
past few years. Important judgments related to the mining sector  have  been
pronounced  by  the  Supreme  Court,  besides  judgments  on  the  issue  of
allocation of natural resources which have direct relevance to the grant  of
mineral concessions.
4. The present legal framework of  MMDR  Act,  1957,  does  not  permit  the
auctioning of mineral concessions. Auctioning of mineral  concessions  would
improve transparency in allocation. Government would also get  an  increased
share of the  value  of  mineral  resources.  Some  provisions  of  the  law
relating to renewals of mineral concessions  have  also  been  found  to  be
wanting  in  enabling  quick  decisions.  Consequently,  there  has  been  a
slowdown in the grant of new concessions and the renewal of  existing  ones.
As a result, the mining sector started registering a decline  in  production
affecting  the  manufacturing  sector  which  largely  depends  on  the  raw
material provided by mining sector. The Government  has  therefore  felt  it
necessary to address the immediate requirements of  the  mining  sector  and
also to remedy the  basic  structural  defects  that  underlie  the  current
impasse.
5. In view of the urgent need to  address  these  problems,  the  Mines  and
Minerals  (Development  and  Regulation)  Amendment  Ordinance,   2015   was
promulgated on 12th January, 2015. The  present  Bill  is  to  replace  this
Ordinance. This bill is designed to put in place mechanism for:
(i) Eliminating discretion;
(ii) Improving transparency in the allocation of mineral resources;
(iii) Simplifying procedures;
(iv) Eliminating delay in administration, so as to  enable  expeditious  and
optimum development of the mineral resources of the country;
(v) Obtaining for the government an enhanced  share  of  the  value  of  the
mineral resources of the country; and
(vi) Attracting private investment and the latest technology;
6. The salient features of MMDR Amendment Bill, 2015 are as follows:
(i) Removal of discretion: auction to  be  sole  method  of  allotment:  The
amendment seeks to bring  in  utmost  transparency  by  introducing  auction
mechanism for the grant  of  mineral  concessions.  The  tenure  of  mineral
leases has been increased from the existing 30 years to 50 years.  There  is
no provision for renewal of leases.
(ii) Impetus to the mining sector: The mining industry  has  been  aggrieved
due to the second and subsequent renewals remaining pending. In  fact,  this
has led to closure of a large number  of  mines.  The  Bill  addresses  this
issue also. The Bill provides that mining  leases  would  be  deemed  to  be
extended from the date of their last renewal to 31st  March,  2030  (in  the
case of captive mines) and till 31st March, 2020 (for the  merchant  miners)
or till the completion of the renewal already granted, if any, or  a  period
of fifty years from the date of grant of such leave, whichever is later.”
                                                          (emphasis is ours)

From a perusal of the extract reproduced above, it  is  apparent,  that  the
insertion of Section 8A into the MMDR  Act,  was  to  address  the  hardship
faced by  leaseholders,  besides  other  reasons,  due  to  the  second  and
subsequent applications for renewal, remaining unattended at  the  hands  of
the State Government.  The instant amendment to the MMDR Act,  introduced  a
uniform original grant period of fifty years, for all  mining  leaseholders.
It also excluded renewal(s), after the expiry of the original lease  period.
 Accordingly, no renewal application can now  be  filed  (after  12.1.2015).
Under  sub-sections  (5)  and  (6)  of  Section  8A,  in  our   view,   such
leaseholders who had moved applications for renewal  of  captive/non-captive
mines, would  be  entitled  to  continue  up  to  31.3.2030/31.3.2020.   The
“Objects and Reasons” for the amendment to the MMDR  Act  aim  at  remedying
the position which emerged upon the interpretation of the provisions of  the
MMDR Act, as they existed hitherto before.  The instant amendment  was  also
directed at remedying the grievances of the mining industry due  to  “second
and  subsequent  renewals”  remaining  pending.   And  also,   because   the
provisions of law relating to renewals had been found to  be  wanting.   The
above view is also endorsed by the fact, that Section  8A(9)  deals  with  a
situation  wherein  “…renewal  has  been  rejected...”.   It  is   therefore
apparent, that sub-sections (5) and (6) of Section 8A of  the  amended  MMDR
Act are aimed at situations, wherein an  application  for  renewal  (validly
made) has remained unattended.  Therefore, for no fault of the  leaseholder,
he would be subjected to an arbitrary prejudice.  It needs to be  clarified,
that since an application for renewal cannot be filed  after  12.1.2015,  an
application for renewal as would be treated as  having  been  validly  made,
ought to have been made before 12.1.2015. We are of the view,  that  out  of
the three contingencies contemplated under  sub-sections  8A(5)  and  8A(6),
referred to above, the first of the contingencies positively, pertains to  a
situation, wherein applications  validly  made  for  renewal,  were  pending
without any final decision at the hands of the  State  Government.   Because
in the absence of a renewal application, the leaseholder  can  be  taken  to
have already expressed  his  disinterest,  to  continue  mining  operations.
Therefore logically, the words “… with effect from the  date  of  expiry  of
the period of renewal last made …”,  should   relate  to  an  expired  lease
prior to 12.1.2015, in relation to which a  valid  application  for  renewal
had already been made.
26.   We also feel persuaded in accepting the  contention  advanced  at  the
hands of learned counsel representing the leaseholders, that  the  words  “…
with effect from the date of expiry of the period of renewal last made  ...”
cannot be overlooked.  In our considered view, there is no ambiguity in  the
aforesaid words.  The plain reading of the quoted words,  can  lead  to  one
and only one inference, namely, that the situation contemplated  under  sub-
sections (5) and (6) of Section 8A of the amended  MMDR  Act  (wherein  both
the above words have been used), includes a situation when the lease  period
contemplated   by   a   renewal,   is    scheduled    to    expire    before
31.3.2030/31.3.2020.  We are satisfied in  clarifying,  that  the  situation
contemplated  by  the  use  of  the  aforesaid  words,  would  extend  to  a
leaseholder who had moved a valid  application  for  renewal  to  the  State
Government, which was yet  to  be  considered  and  disposed  of,  prior  to
12.1.2015.  The instant situation, is  not  excluded  by  the  contingencies
contemplated under Section 8A(9) of the amended MMDR Act.  For  the  reasons
recorded in the instant paragraph, as  also,  in  the  preceding  paragraphs
(wherein Section 8A of  the  amended  MMDR  Act,  has  been  considered  and
interpreted), we are satisfied to hold, that the  applicability  of  Section
8A of the amended MMDR Act  need  not  only  extend  to  leaseholders  whose
original lease/renewal lease period had not expired, but would  also  extend
to leaseholders whose term of lease/renewal had expired prior  to  12.1.2015
and the concerned leaseholder(s) had moved a valid application for  renewal,
at least twelve months before the leaseholder’s  existing  lease  (original,
first, second or subsequent) was due to expire, and  whose  application  has
not been considered and rejected.
27.   Irrespective of the position noticed herein above,  it  is  imperative
for us to clarify, that  the  benefit  of  extension  of  the  lease  period
postulated under Section 8A of the MMDR  Act  is  available,  subject  to  a
further overriding condition, namely, “… that all the terms  and  conditions
of the lease have been complied with”.  A leaseholder who does  not  satisfy
any  of  the  required  conditions  of  the  lease,  as  for  instance,  the
postulated  clearances/approvals/consent,  would  not  be  entitled  to  the
benefits extended under sub-section (5) or (6) of Section 8A of the  amended
MMDR Act.
28.   Having addressed the issue with reference  to  the  subsistence  of  a
mining lease, on the basis of an interpretation of Sections 8 and 8A of  the
MMDR Act, we have substantially covered the area  needed  to  be  traversed.
It is however important to notice, that  one  further  aspect  needs  to  be
dealt with.  The same emerges from a collective reading of Section 4A(4)  of
the MMDR Act and  Rules  28,  and  28A  of  the  Mineral  Concession  Rules.
Section 4A(4) was substituted for the earlier Section 4A  with  effect  from
10.2.1987, as under:
“4-A. Termination of prospecting licences or mining leases.—
            xxx             xxx              xxx
(4) Where the holder of a mining lease fails to undertake mining  operations
for a period of two years after the  date  of  execution  of  the  lease  or
having commenced mining operations, 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 mining operations:

Provided that the State Government  may,  on  an  application  made  by  the
holder of such lease before its expiry under this sub-section 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, subject to  such  conditions  as  may  be
prescribed, to the effect that such lease shall not lapse:
Provided further that the State Government, may on  an  application  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 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  second  proviso  for
more than twice during the entire period of the lease.”
                                                          (emphasis is ours)
A perusal of the aforesaid provision reveals, that where a holder of  mining
lease, does not carry out mining operations for a continuous period  of  two
years, his mining lease would lapse.   It  was  the  contention  of  learned
counsel for the petitioner – Common Cause, as  also,  that  of  the  learned
Additional Solicitor  General,  that  the  operation  of  Section  4A(4)  is
automatic, and requires no order to be passed. It  was  submitted,  that  as
soon as the leaseholder  has  committed  the  default  of  not  being  in  a
position to carrying on (or for  not  having  actually  carried  on)  mining
operations, for a continuous period of two years,  the  lease  would  lapse.
The above two exigencies will be referred to as the first,  and  the  second
contingency respectively, hereinafter.
29.   According to learned counsel, the only  remedy  available  to  such  a
leaseholder, to prevent the lease from lapsing is, to move  an  application,
either prior to the expiry  of  the  period  of  two  years  (of  non-mining
operations), or thereafter.  The State Government on being  satisfied,  that
mining operations were not discontinued as expressed above, for the  reasons
beyond the control of the leaseholder, could make an  order,  in  the  first
contingency,  that  the  lease  would  not  lapse.   And   in   the   second
contingency, that the lease would rematerialize.
30.   It is not possible for us to accept, that vital  vested  rights  in  a
leaseholder, can be  curtailed  without  affording  him  an  opportunity  to
repudiate the impression(s) of the competent  authority,  namely,  that  the
leaseholder could  not  have  (or  had  actually  not)  carried  out  mining
operations,  for  a  continuous   period   of   two   years.   Our   instant
contemplation, stands affirmed through Rule 28  of  the  Mineral  Concession
Rules.  The same is reproduced below:
“28. Lapsing of leases – (1) Subject to the other conditions  of  this  rule
where mining operations are not commenced within a period of one year  (sic.
two years) from the date of execution of the lease, or is  discontinued  for
a continuous period of one year (sic. two years) after commencement of  such
operations, the State Government shall, by  an  order,  declare  the  mining
lease as lapsed and communicate the declaration to the lessee.
(2) Where a lessee is unable to  commence  the  mining  operation  within  a
period of one year (sic. two years)  from  the  date  of  execution  of  the
mining lease, or discontinues mining operations for a period  exceeding  one
year (sic. two years) for reasons beyond  his  control,  he  may  submit  an
application to the State Government, explaining the reasons  for  the  same,
at least three months before the expiry of such period.
(3) Every application under sub-rule (2) shall be accompanied by  a  fee  of
Rs.200.
(4) The State Government may on receipt of an application  made  under  sub-
rule (2) and on being satisfied about the adequacy and  genuineness  of  the
reasons for the non-commencement  of  mining  operations  or  discontinuance
thereof, pass an order before  the  date  on  which  the  lease  would  have
otherwise lapsed, extending or refusing to extend the period of the lease:
Provided that where the State Government on receipt of an application  under
sub-rule (2) does not pass an order before the expiry of the date  on  which
the lease would have otherwise lapsed, the lease shall  be  deemed  to  have
been extended until the order is passed by the State Government or  until  a
period of two years, whichever is earlier.
Explanation 1. - Where the non-commencement of the mining operations  within
a period of two years from the date of  execution  of  mining  lease  is  on
account of –
(a) delay in acquisition of surface rights; or
(b) delay in getting the possession of the leased area; or
(c) delay in supply or installation of machinery; or
(d) delay in getting financial  assistance  from  banks,  or  any  financial
institutions; or
(e) ensuring supply of the mineral in an industry of  which  the  lessee  is
the owner or in which  he  holds  not  less  than  50%  of  the  controlling
interest,
and the lessee is able to furnish documentary evidence supported by  a  duly
sworn affidavit, the State Government may consider if there  are  sufficient
reasons for non-commencement of operations for a continuous period  of  more
than one year (sic. two years).
Explanation 2. -  Where  the  discontinuance  of  mining  operations  for  a
continuous period of two years after the commencement of such operations  is
on account of –
(a) orders passed by any statutory or judicial authority; or
(b) operations becoming highly uneconomical; or
(c) strike or lock out,
and the lessee is able to furnish documentary evidence supported by  a  duly
sworn affidavit, the State Government may consider if there  are  sufficient
reasons for discontinuance of operations for a  continuous  period  of  more
than one year (sic. two years).
Explanation 3. - In case of mining lessee who has undertaken  reconnaissance
operations or in case of mining lessee  whose  capital  investment  in  mine
development is planned to be in excess of Rs. 200 crores and where the  mine
development is likely to take more than  two  years,  the  State  Government
shall consider it to be sufficient reason  for  non-commencement  of  mining
operations for a continuous period of more than two years.”
                                                          (emphasis is ours)

It is apparent from a perusal of sub-rule  (1)  extracted  above,  that  the
State Government is mandated to pass an order, and thereby, declare  that  a
mining lease had lapsed.  It is also the mandate of sub-rule (1)  aforesaid,
that such an order passed by the State Government, must be  communicated  to
the leaseholder.  On a conjoint reading of Section 4A(4) and Rule 28(1),  we
are satisfied to hold, that a mining lease under Section 4A(4) would not  be
deemed to have lapsed, till the State Government passes an order,  declaring
the mining lease to have lapsed, and further communicates the  same  to  the
leaseholder.
31.   Rule 28(4) of the Mineral Concession  Rules,  caters  to  a  situation
wherein a leaseholder has moved an application, that his lease be  permitted
to continue even though mining operations could not be carried  on  (or  had
actually not been carried on) for a continuous period  of  two  years.   The
proviso under Rule 28(4) is clear and  categoric  to  the  effect,  that  in
cases where the State Government, on receipt of such application,  does  not
pass an order, the lease would be deemed to have  been  extended,  until  an
order was actually passed by the State Government.   This  further  affirms,
that lapse of a mining lease is not automatic.  Despite non-operation  of  a
mining lease under  Rule  28(2),  in  case  the  leaseholder  has  moved  an
application  for  extension,  on  account  of  non-commencement  of   mining
operations, or on account  of  discontinuation  of  mining  operations,  the
lease period shall be deemed to have continued till the date of passing  the
order, or for a period of two years beyond  the  contemplated  lease  period
(in case such an order is not passed). The above conclusions, rule  out  the
submissions advanced on behalf of the non-applicant  –  petitioner  and  the
Union of India, that lapse (contemplated under Section  4A(4)  of  the  MMDR
Act) is automatic, and that, for a lease to lapse, no  express  order  needs
to be passed.
32.    Based  on  the  considerations  recorded  above,  we  summarise   our
conclusions as under:
(i)   A leaseholder would have a subsisting mining lease, if the  period  of
the original grant was still in  currency  on  12.1.2015.   Additionally,  a
leaseholder whose original lease has  since  expired,  would  still  have  a
subsisting lease, if the original lease having  been  renewed,  the  renewal
period was still in currency on 12.1.2015.  Such  a  leaseholder,  would  be
entitled to the benefit of Section 8A of the amended MMDR Act.
(ii)  A leaseholder who had not  moved  an  application  for  renewal  of  a
mining lease (which was due to expire, prior to 12.1.2015), at least  twelve
months before the existing lease was due to expire, under the provisions  of
the unamended MMDR Act and the Mineral Concession Rules, will be  considered
as not a  valid/subsisting  leaseholder,  after  the  expiry  of  the  lease
period.  The provisions of the amended MMDR Act will therefore not enure  to
the benefit of such leaseholder.
(iii) A leaseholder who  has  moved  an  application  for  renewal  (of  the
original/first or subsequent renewal) of a mining  lease,  at  least  twelve
months before the existing lease was due to expire,  and  on  consideration,
such an  application  has  been  rejected,  will  be  considered  as  not  a
valid/subsisting leaseholder.  The provisions of the amended Section  8A  of
the MMDR Act will not enure to the benefit of such leaseholder,  because  of
the express exclusion contemplated for the  above  exigency,  under  Section
8A(9) of the amended MMDR Act.
(iv)  A leaseholder who has moved an application for “first renewal” of  the
original mining lease, at least twelve months before the original lease  was
due to  expire,  and  such  application  has  not  been  rejected,  will  be
considered to be a valid leaseholder having a subsisting right to  carry  on
mining operations, till the expiry of two years after  18.7.2014,  i.e.,  up
to 17.7.2016, as is apparent from a conjoint reading of  the  unamended  and
amended Rule 24A of the Mineral Concession Rules.   Such  leaseholder  would
have the benefit of sub-sections (5) and (6) of Section 8A  of  the  amended
MMDR Act.
(v)   A leaseholder who had moved a second  (third  or  subsequent)  renewal
application under Section 8(3) of the unamended MMDR Act,  at  least  twelve
months before the renewed lease was due to  expire,  and  whose  application
had not been considered and rejected (though not  entitled  to  any  benefit
under the unamended Section 8A of the MMDR Act and the amended  Rule  24A(6)
of the Mineral Concession Rules) up  to  12.1.2015,  would  still  have  the
benefit of sub-sections (5) and (6) of Section 8A of the amended  MMDR  Act,
in view of the situation sought to be remedied by  the  Mines  and  Minerals
(Development and Regulation) Amendment Act, 2015.
(vi)  Consequent upon the amendment of Section  8A  of  the  MMDR  Act,  the
regime introduced through sub-sections (5) and  (6)  thereof,  provides  for
three contingencies where benefits have been extended to leaseholders  whose
lease period had earlier  been  extended  by  a  renewal.   Firstly,  for  a
leaseholder whose renewal period  had  expired  before  12.1.2015,  and  the
leaseholder had moved an application for  renewal  at  least  twelve  months
before the leaseholder’s  existing  lease  was  due  to  expire,  and  whose
application has not been considered and rejected,  the  lease  period  would
stand extended up  to  31.3.2030/31.3.2020  (in  the  case  of  captive/non-
captive mines, respectively).  Additionally, a leaseholder whose  period  of
renewal would expire after 12.1.2015, but  before  31.3.2030/31.3.2020,  the
lease period would stand extended up to 31.3.2030/31.3.2020 (in the case  of
captive/non-captive mines, respectively). Secondly,  where  the  renewal  of
the mining lease already extends to a period beyond 31.3.2030/31.3.2020  (in
the case of captive/non-captive mines, respectively), the  lease  period  of
such leaseholders, would continue up to the actual  period  contemplated  by
the renewal order.   Thirdly,  a  leaseholder  would  have  the  benefit  of
treating the original lease period as of  fifty  years.   Accordingly,  even
during the renewal period, if the period  of  the  mining  lease  would  get
extended (beyond the renewal period) by treating the original  lease  as  of
fifty years, the leaseholder would be entitled to such benefit.

      Out of the above three contingencies provided under  sub-sections  (5)
and (6) of Section 8A, the contingency as  would  extend  the  lease  period
farthest, would enure to the benefit of the leaseholder.
(vii)       Based on the interpretation placed by us  on  Section  4A(4)  of
the MMDR Act, and Rule 28 of the Mineral Concession Rules, we can  draw  the
following conclusions.  Firstly, unless an order  is  passed  by  the  State
Government declaring, that a mining  lease  has  lapsed,  the  mining  lease
would be deemed to be subsisting, up to the date  of  expiry  of  the  lease
period provided by the lease document.  Secondly, in situations  wherein  an
application has been filed by a leaseholder, when he is not  in  a  position
to (or for actually not) carrying on mining  operations,  for  a  continuous
period of two years, the lease period will not be  deemed  to  have  lapsed,
till an order is passed by the State Government on such application.   Where
no order has been passed, the lease shall be deemed to  have  been  extended
beyond the original lease  period,  for  a  further  period  of  two  years.
Thirdly, a leaseholder having  suffered  a  lapse,  is  disentitled  to  any
benefit  of  the  amended  MMDR  Act,  because  of  the  express   exclusion
contemplated under Section 8A(9) of the amended MMDR Act.


                                                  ……………………………J.
                                                  (Jagdish Singh Khehar)


                                                  ……………………………J.
                                                  (C. Nagappan)
New Delhi;
April 04, 2016.

















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