TMI Blog2012 (2) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... late. The Central Government has been given exclusive power to make laws with respect to the matters enumerated in List I in the Seventh Schedule appended to the Constitution of India; whereas the State has been given such power under sub clause(3) of Article 246 and subjects are given in List II of the Seventh Schedule and it is called the 'State List'. In addition to Clause (3) of Article 246 of the Constitution of India, the Parliament has, subject to Clause(1) of Legislature of any State, also been given power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule, which is called 'Concurrent List' and, according to the learned counsel for the petitioner, in the Union List (List I) Entry no.54, it is specifically provided that law relating to regulation of mines and minerals development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest, obviously shall be enacted by the Parliament only. By exercising powers, the Central Government has enacted the Mines and Minerals (Development and Regulation) Act, 1957 and specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the Central Government. In addition to the above, sub clauses (f) (k) (l) of Clause(2) of Section 18 also deal with the arrangements for the storage of minerals and stocks thereof, that may be kept by any person and also the regulation of prospecting operation and also certain things in the interest of conservation of systematic development of minerals or for the protection of environment by preventing or controlling pollution which may be caused by prospecting or mining operations and all those powers are conferred in the Central Government. Therefore, in view of the above provisions also, the State Government cannot and could not have issued such direction, so as to allow the sale of the fines. 5. Learned counsel for the petitioner also relied upon the judgment of the Hon'ble Supreme Court, delivered in the case of 1998(6)Supreme Today, 281, wherein it has been held that the regulation is possibly not of sale of the minerals but also of removal of the mineral and, therefore, even if minerals are not removed from the mines after excavation or abstraction, even then the leaseholder is liable to pay royalty. Therefore, it is submitted that this is not a case wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued a letter on 3rd February, 2010 (Annexure A) indicating the problem caused because of the accumulation of the huge quantity of fines. The authority was of the view that because of the huge portion of the iron ore fines dumped on the hill slope in the western side of the Quarry no.1 of the Company Usha Martin Ltd., a huge quantity of fines is being washed away to the virgin forest area in the hill slope below the quarry working and it has been opined that the above wash off fines from the fines stack is not only a potential danger to the forest growth in the hill slope below the said Quarry no.1 but also to the loss of valuable mineral. The learned Advocate General again drew our attention to the opinion of the Office of the Regional Controller of Mines indicating the loss of valuable minerals. It is also submitted that even a large number of quantity have been shown in the said communication, which clearly indicates that a large quantity of fines have been accumulated and it has caused loss to the State Government. It is submitted that it is not only the loss to such lease holders but the same is also against the condition of the lease as given in form 'K', prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterials of the Company M/s Usha Martin Ltd. Therefore, in view of Rule 33( 6), Section 18(2) as well as statutory lease deed under Form K and in view of the binding character of the above Rules and Section 18(3), which binds all State Governments, and as per Rule 54, mining plan required under Rule 12(4), even if the present order passed by the State Government is not in consonance with the statutory provisions of law, empowering the State Government to pass such order, even then there is other order putting restriction of the sale of fines and contrary to it there are all other provisions referred above, including Form K containing specific condition empowering the lease holder to sale not only the minerals but authorizes specifically to dispose of the mineral and minerals. It is submitted that, in fact, fines is a particular type of commodity comes out in the process of the mining operation and that part of the fines which cannot be utilized for any purpose and if put in a particular type of process then that process may block the entire machinery ,therefore, fines are required to be sold and, therefore, the Companies had right to sell such fines. Learned counsel for the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate General submitted that if State wants to put certain restriction or condition in the mining lease then that can be done after obtaining the approval from the Central Government and that has not been done in this case. 9. Learned counsel appearing for the respondent no.6 tried to support the impugned notification Annexure 2 dated 27th August, 2011, however to the extent only by which the restriction against sale of the fines has been removed. Learned counsel for the respondent no.6 drew our attention to the pleadings submitted by the respondent no.6, indicating that for use of fines they are trying their best to transport the dumps ore and fines to its various plants , which clearly is not done by other Companies in India and even after doing so and even after their proposal to establish some more process , there will be huge quantity of the fines which will be of no use except of any other purpose for which the buyers are there, who are paying the price for such commodity and Company is paying royalty. 10. Learned counsel for the Union of India submitted that the notification issued by the State Government is without approval of the Central Government as well as beyond th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , under the heading of policy decision but without showing any of the provisions of law in which such Resolution was issued by the State Government and admittedly this order dated 27th August, 2011 is not an order of withdrawal of any earlier stay order granted against the sale of the fines but it is absolutely an independent Resolution in the form of policy decision and it contains permission for disposal of iron ore fines overburden and other waste materials of the captive iron ore mines. It also prescribed the size of the iron ore which shall be below 10 mm. We are conscious that even if the size of the iron ore fines has been prescribed by the Central Government then the State Government by this Notification could not have declared what shall be the size of the fines and the order of the Central Government would prevail. Not only this, under Clause(2), following provisions have been made which appears to be beyond the authority and power of the State Government and for the purpose of clarity, we would like to quote this brief policy decision under the heading of amended Resolution dated 27th August, 2011, which is as follows : 2. The cabinet of Government of Jharkhand has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 27th August, 2011 being issued without authority of law and in contravention to the provisions of the Act of 1957 and Rules, wherein the powers have been separately given to only the Central Government in prescribing of the relevant Rules, including the provisions to be made which have been already made by the Central Government. However, it is a different issue, whether the petitioner can succeed in the writ petition. In view of the fact that if the argument of the learned counsel for the petitioner is accepted in toto then it was the duty of the writ petitioner to show that under which law the petitioner is seeking direction against the State Government so as to have a restriction against the sale of the fines. Annexure 2 dated 27th August, 2011, the alleged policy decision, if found to be illegal even then, as we have already noticed, there are all provisions under the Act and Rules, which clearly provided for complete procedure for sale of minerals and fines. The lease is granted to the lessee by the lessor to be executed by the State Government with the limited right of the State Government only to enter into lease agreement but without putting any condition by the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds. Here, in this case, there are materials which indicate that because of the accumulation of the fines in huge quantity, the authorities found that it is creating pollution in the surface water bodies and also creating huge pollution for the environment and causing deforestation also. Therefore, the fines if are required to be deposited then it does not mean that sub rule(6) of Rule 33 prohibits sale of the fines in any way. In view of the above, Rule 33(6), as interpreted by the petitioner, cannot be accepted to mean that fines are required to be kept deposited and can only be disposed of in specially prepared tailing disposal area. 17. At this juncture , we would like to refer two orders placed on record by the State Government along with the supplementary counter affidavit because of which it has been stated by the State that the State had to take a policy decision in the form of Annexure 2. The said order is Annexure B dated 11th December, 2009 and this is not a general order passed by the State Government, so as to prohibit the sale of the fines, obviously the iron ore fines. This order is a blanket stay against the sale of the iron ore itself in open market by the Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fines. Therefore, the present writ petition has no merit and hence is liable to be dismissed. 20. Learned counsel for the respondents vehemently submitted that in such matters some cost should have been imposed. For that purpose, though Annexure 2 was found to be illegal and without jurisdiction, issued by the State Government, this Court has not passed any interim order in favour of the writ petitioner and as such we do not propose to impose any cost upon the writ petitioner. However, we may observe here that in any Public Interest Litigation, it is always desirable that a thorough research be done by the writ petitioner so as to assist the Court and particularly when it is a matter of State revenue. At this juncture, we further like to point out that the State of Jharkhand is a mineral rich State and the State itself without stay order passed by this Court prohibited itself from realising a huge amount of royalty and, therefore, more caution should have been taken by the writ petitioner before filing the writ petition and he should have tried to find out what was the interest of the public. 21. This writ petition is , accordingly, dismissed. - - TaxTMI - TMITax - Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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