Section 15 of the Mines and Mineral (Development & Regulation) Act, 1957 is exclusively reserved to the State Government and the State Government : Jammu and Kashmir High Court
In the exercise of the power to frame statutory rules in respect of minor minerals, has already promulgated the statutory rules in terms of SRO 105 of 2016 in the matter of allotment of leases and licenses of minor minerals in the Union Territory of Jammu and Kashmir. This was held in the judgment passed by a single judge bench comprising of HON’BLE MRS. JUSTICE SINDHU SHARMA, in the matter M/s New J.K. Roadways V. Union Territory of J&amp;K and others. [CMAM No. 34/2014], dealt with an issue where the petitioner filed a petition challenging the e-auction notices issued by the District Mineral Officers of different Districts. The grievance of the petitioner is that the Ministry of Mines, Government of India has come up with detailed guidelines issued purportedly under Section 20A of Mines and Mineral (Development &amp; Regulation) Act, 1957 which clearly provide pre-embedded clearances before putting the mineral blocks to e-auction process.  Learned counsel appearing for the petitioner, contended that all e-auction notices issued by the respondents are bad in the eyes of law as the pre-embedded clearances as mandated by the Government of India have not been obtained before initiating e-auction process. The petitioner has neither participated in those e-auction, nor has he raised any grievance, as is projected in the writ petition before any authority. Confronted with the aforesaid position, learned counsel for the petitioner placed reliance on the communication of the J&amp;K Pollution Control Board to contend that the matter had been taken at the relevant point of time with the Board. A perusal of the communication of the Board made it abundantly clear that the grievance which the petitioner has now projected in this writ petition was never agitated before any authority including the Board. The Board vide its communication appears to have responded to the representation of the petitioner regarding the role of the Board in the matter of mining operations. The Board clarifies that for any type of mining activity, not only the environmental clearance from the competent authority is required, but consent to establish and consent to operate from the Board under Water (Prevention and Control of Pollution) Act 1974 and Air (Prevention and Control of Pollution) Act, 1981 is also a sine quo non.  No other document, letter or communication was brought to the notice of the Court by the learned counsel for the petitioner which could demonstrate the bona fide of the petitioner with regard to raising of the grievance on the first available opportunity. No explanation has been tendered to justify the wait of about three weeks for challenging the e-auction notices. The process of e-auction appears to have proceeded further and is stated to be at the stage of finalization. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir dismissed the petition and held that the petition filed by the petitioner lacks bona fide and, therefore, this Court is not inclined to exercise its discretionary power vested under Article 226 of the Constitution. Click here to view judgement
Sr. No. 1 HIGH COURT OF JAMMU AND KASHMIR CM 2123 2020 in WP(C) 950 2020 CM 2124 2020 Cav 581 2020 PetitionerSuhail Ahmad Khan Through : Mr. S.A.Naik Sr. Advocate with Mr. Shabir Ahmed Advocate Union Territory of J&K and others Through : Mr. F.A.Natnoo AAG On video Conference Voice Call from residence) Coram:HON’BLE MR. JUSTICE SANJEEV KUMAR JUDGE Mr. F.A.Natnoo learned AAG appears for the caveators. Caveat stands Cav 581 2020 discharged. CM 2124 2020 This is an application seeking extension of time for annexing the requisite Court fee along with attested affidavits. For the reasons mentioned in the application it is allowed. 2 WPC 950 2020 WP(C) 950 2020 The petitioner is aggrieved and has challenged the e auction notices issued by the District Mineral Officers of different Districts on 27.05.2020 28.05.2020 29.05.2020 30.05.2020 and 01.06.2020 etc. The grievance of the petitioner is that the Ministry of Mines Government of India has come up with detailed guidelines issued purportedly under Section 20A of Mines and Mineral Act 1957 which clearly provide pre embedded clearances before putting the mineral blocks to e auction process. Learned counsel appearing for the petitioner therefore contends that all e auction notices issued by the respondents are bad in the eyes of law as the pre embedded clearances as mandated by the Government of India have not been obtained before initiating e auction process. Having heard learned counsel for the petitioner and perused the record I am of the view that the petitioner has no cause to maintain this petition. As noted above most of the e auction notices were issued on 27.05.2020 28.05.2020 and 30.05.2020 and one or two e auction notices have also been issued on 01.06.2020. The petitioner has neither participated in those e auction nor has he raised any grievance as is projected in the writ petition before any authority. Confronted with the aforesaid position learned counsel for the petitioner placed reliance on the communication of the J&K Pollution Control Boardissued vide its No. PCB LSJ PS 20 738 dated 05.06.2020 to 3 WPC 950 2020 contend that the matter had been taken at the relevant point of time with the 07 A perusal of the communication of the Board dated 05.06.2020 makes it abundantly clear that the grievance which the petitioner has now projected in this writ petition was never agitated before any authority including the Board. The Board vide its communication dated 05.06.2020 appears to have responded to the representation of the petitioner regarding the role of the Board in the matter of mining operations. The Board clarifies that for any type of mining activity not only the environmental clearance from the competent authority is required but consent to establish and consent to operate from the Board under Water Act 1974 and Air Prevention and Control of Pollution) Act 1981 is also a sine quo non. No other document letter or communication has been brought to the notice of this Court by the learned counsel for the petitioner which could demonstrate the bona fide of the petitioner with regard to raising of the grievance on the first available opportunity. No explanation has been tendered to justify the wait of about three weeks for challenging the e auction notices. The process of e auction appears to have proceeded further and is stated to be at the stage of It is at this point of time the petitioner for reasons not forthcoming from the petition has approached this Court to somehow stall the e auction of minor minerals undertaken by the Union Territory of J&K. Even a look at the order of Ministry of Mines Government of India dated 03.06.2020 laying down the guidelines for e auction of mineral blocks with pre embedded clearances for mining projects makes it clear that the States and the Union Territories have 4 WPC 950 2020 been enjoined to identify at least five mineral blocks for e auction with pre embedded clearances which would be e auctioned along with other mineral blocks. It further provides that based on the experience from e auction of the identified mineral blocks on pilot basis further steps will be taken towards mainstreaming the concept of auction with pre embedded clearances as per National Mineral Policy 2019 approved by the Cabinet. Suffice it to notice that these guidelines were issued by the Ministry of Mines in terms of Section 20A of the Act only on 03.06.2020 while as the impugned e auction notices had already been floated. The identification of five mineral blocks for e auction with pre embedded clearances may have to be resorted to by the respondents in the next auctions in terms of the communication of the Ministry of Mines dated 03.06.2020 and would not apply to the process which was already set in motion by issuing the impugned e auction notices prior to coming into operation of the guidelines aforesaid. Otherwise also the petition filed by the petitioner lacks bona fide and therefore this Court is not inclined to exercise its discretionary power vested under Article 226 of the Constitution. That apart the communication dated 3.06.2020ex facie applies to the minerals only and may not comprehend within its ambit the „minor minerals‟ which expression is separately defined under Section 3of the Act. It is also pertinent to note that in terms of Section 15 of the Act the power to frame statutory rules in respect of minor minerals is exclusively reserved to the State Government and the State Government in the exercise of aforesaid power has already promulgated the statutory rules in terms of SRO 105 of 2016 which is being followed by the respondents in the matter of allotment of 5 WPC 950 2020 leases and licences of minor minerals in the Union Territory of Jammu and Kashmir. Ministry‟s guidelines issued in terms of Section 20A of the Act can at the most treated to be instructions to remodel their Rules on the lines For the foregoing reasons I find no merit in this writ petition. The same suggested in the guidelines. is accordingly dismissed. Jammu 29.06.2020 SANJEEV KUMAR) JUDGE Whether the order is speaking: Yes. Whether the order is reportable: Yes No. 