Dhiraj Singh Thakur, CJ (Oral).

1. The present writ appeals have been preferred against the judgment and order, dated 01.09.2015, in W.P. No.18035 of 2015.

                  With a view to understand the background in the context of which the present controversy has arisen, it is necessary to give in brief the material facts as under:

                  An application came to be filed by the writ petitioner on 07.03.2005 for grant of mining lease for iron ore in respect of area measuring Ac.110 in Sy. Nos.725, 822 and 846 of Uyyalawada Village in Kurnool District. The application was processed by the officers of the Mines and Geology Department and a report prepared was forwarded to the State Government through the office of the Director of Mines and Geology on 08.03.2007 with a recommendation for grant of the mining rights.

2. The State Government took a decision to grant mining lease in favour of the writ petitioner for a period of twenty years subject to the approval of the Government of India, which was otherwise necessary under Section 5(1) of the Mines and Minerals (Development and Regulation) Act, 1957. A communication, dated 28.09.2007, was addressed to the Central Government to convey its approval.

                  The Central Government, upon receipt of the communication from the State Government, sought certain reports and clarifications vide their communication, dated 11.02.2013 and 05.05.2014, which are stated to have been so furnished by the State Government. This was later on followed by another communication, dated 29.09.2014, from the Union of India whereby certain additional information was sought from the State Government.

3. Finally, failure to elicit a response from the Central Government forced the petitioner to submit a representation, dated 08.02.2015, to the Union of India for grant of approval as had been sought by the State Government. This was responded to by the Union of India vide their communication, dated 23.04.2015, addressed to the State Government to the effect that “the proposal for accord or prior approval for grant of mineral concession” had become ineligible as per the provisions of Section 10A(1) of the Mines and Minerals (Development and Regulation) Amendment Act, 2015.

4. The State Government, however, was advised to ascertain whether the proposal for grant of mineral concession was saved from ineligibility under the provisions of Section 10A of the Amendment Act and further that if the proposal remained eligible, the State Government would bring it to the notice of the Ministry so that necessary action as per the provision of the Amendment Act could be taken.

5. At this stage, it would be relevant to refer to section 10A(1) & (2) of the Amendment Act of 2015, which is relevant for purposes of the present controversy. The provision reads thus:

                  “10A. (1) All applications received prior to the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, shall become ineligible.

                  (2) Without prejudice to sub-section (1), the following shall remain eligible on and from the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015:—

                  (a) applications received under section 11A of this Act;

                  (b) where before the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 a reconnaissance permit or prospecting licence has been granted in respect of any land for any mineral, the permit holder or the licensee shall have a right for obtaining a prospecting licence followed by a mining lease, or a mining lease, as the case may be, in respect of that mineral in that land, if the State Government is satisfied that the permit holder or the licensee, as the case may be,—

                  (i) has undertaken reconnaissance operations or prospecting operations, as the case may be, to establish the existence of mineral contents in such land in accordance with such parameters as may be prescribed by the Central Government;

                  (ii) has not committed any breach of the terms and conditions of the reconnaissance permit or the prospecting licence;

                  (iii) has not become ineligible under the provisions of this Act; and

                  (iv) has not failed to apply for grant of prospecting licence or mining lease, as the case may be, within a period of three months after the expiry of reconnaissance permit or prospecting licence, as the case may be, or within such further period not exceeding six months as may be extended by the State Government;

                  (c) where the Central Government has communicated previous approval as required under sub-section (1) of section 5 for grant of a mining lease, or if a letter of intent (by whatever name called) has been issued by the State Government to grant a mining lease, before the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, the mining lease shall be granted subject to fulfilment of the conditions of the previous approval or of the letter of intent within a period of two years from the date of commencement of the said Act:

                  Provided that in respect of any mineral specified in the First Schedule, no prospecting licence or mining lease shall be granted under clause (b) of this subsection except with the previous approval of the Central Government.”

6. While the stand of the Union of India before the learned single Judge was that in view of the provisions of the Amendment Act, 2015, all applications received prior to the date of commencement of the Mines and Mineral Regulation Development Act, 2015, would become ineligible. The stand of the writ petitioner before the learned single Judge was that the petitioner’s case was saved in terms of Section 10A(2)(c) of the Act. It was urged that since the State Government had already intimated its decision to grant mining lease in favour of the petitioner as early as 28.09.2007, followed by a subsequent intimation, dated 07.03.2014, the mining rights could not be refused in favour of the petitioner.

7. The aforementioned stand of the petitioner found favour with the learned single Judge, who allowed the petition holding that “there was no justification on the part of the Union of India to conclude by virtue of the impugned letter, dated 23.04.2015, that the application of the petitioner had suffered ineligibility”. It held that the petitioner’s application did not suffer from the ineligibility as stipulated under Section 10A(1) of the Amendment Act, 2015, and that, on the other hand, it was saved under the exception as provided under Section 10A(2)(c) of the said Act.

                  In those circumstances, while allowing the writ petition, the impugned communication, dated 23.04.2015, issued by the Union of India and the State Government was set aside and directions were issued to grant approval for the mining lease in favour of the petitioner.

8. Learned counsel for the appellant states that the view expressed by the learned single Judge in the judgment and order impugned is unsustainable inasmuch as the communication addressed by the State Government, dated 28.09.2007, followed by subsequent intimation, dated 07.03.2014, could not be said to be an order granting a mining lease for which previous approval was required under Section 5(1) of the Mines and Minerals (Development and Regulation) Act, 1957, which envisaged obtaining prior approval insofar as major minerals are concerned.

                  It was urged that, at best, the communication addressed by the State Government could be treated as merely recommendatory in nature and did not amount either to issuing a Letter of Intent, much less could it amount to granting of a mining lease for which previous approval of the Central Government was a pre-requisite. It was also urged that the State Government could not, in law, at all issue a Letter of Intent, or for that purpose, issue a communication granting lease even without the prior approval of the Central Government.

9. With a view to support and buttress this proposition, learned counsel for the appellant has placed reliance upon the Apex Court judgment in Bhushan Power and Steel Ltd v. State of Odisha ((2017) 2 SCC 125) wherein, in almost similar circumstances, the Apex Court in para No.17 held as under:

                  “17. Undoubtedly, as per sub-section (1) of Section 10-A, all applications received prior to coming into force of the Amendment Act, 2015, become ineligible. Reason for interpreting such a provision is not far to seek. Before the passing of the Amendment Act, 2015, it was the Central Government which had the ultimate control over the grant of licences insofar as mining of major minerals is concerned. As per the procedure then existing, the State Government could recommend the application submitted by any applicant for grant of mining lease to the Central Government and the Central Government was given the power to grant or refuse to grant the approval. Thus, “previous approval” from the Central Government was essential for grant of lease, without which the State Government could not enter into any such lease agreement with the applicant. Shortcomings of this procedure were noticed by this Court in its judgment rendered in Centre for Public Interest Litigation v. Union of India (for short “CPIL case”) and also in Natural Resources Allocation, In re, Special Reference No. 1 of 2012 . In these judgments, this Court expressed that allocation of natural resources should normally be by auction. Judgment in CPIL case had a direct relevance to the grant of mineral concessions as the Government found that it was resulting in multipurpose litigation which was becoming counterproductive. Mining Ordinance, 2015 was passed on 12-1-2015 which was ultimately replaced when Parliament enacted the Amendment Act, 2015.”

10. It is not denied that no approval was granted by the Central Government and in the interregnum, the amended provisions of Section 10A came into play. The case would have been totally different had the communication, dated 28.09.2007, on which the petitioner placed reliance, was issued after the grant of the approval, if there was any by the Central Government, which is conspicuously missing in the instant case.

                  In our view, no right could flow to the petitioner based upon the communication, dated 28.09.2007, or for that matter, communication, dated 07.03.2014, and the application of the petitioner would squarely be hit by the ineligibility clause of Section 10(A)(1) of the Amendment Act, 2015. In our opinion, the judgment and order passed by the learned single Judge is unsustainable.

                  The Writ Appeals are allowed and the impugned judgment and order, dated 01.09.2015, is, accordingly, set aside. No costs.

                  Pending miscellaneous applications, if any, shall stand closed.