This article is written by Rimjhim Vaishnavi, a student of NUSRL, Ranchi.
Historical Background of mining legislation in India
Mining is not a new phenomenon; neither the need for law regulating mining is new. There has been laws guiding and regulating mining activities since 19th century. The first proposal for regulation of mining in India came in 1890, which was introduced by Lord Cross, who at that time was the Secretary of State of India, later in 1894 for the first time Inspector of Mines was appointed for the purpose of management and supervision.
In the year 1901, first Mine Act enacted in India which was only applicable to the mines situated in British India, which was accompanied with establishment of “Bureau of Mines Inspection” in Kolkata. Since then Mine Act has been re-enacted in 1923, 1928 and 1935.
In the year 1952, Mine Act was now applicable throughout India. Since then the Mine Act has been guiding and regulating the mining activity in India, through the act is open to necessary amendment and it has been amended from time to time. It has also been witnessed that every state is guided by different state mining laws, as every state differs from one another.
Laws relating to mining in India
Along with Mines Act, 1952 there are many other acts which regulates and provides a framework to mining, which includes “mines and Minerals (Development and Regulations) Act, 1975”, “Auction by Competitive Bidding of Coal Mines Rules, 2012”, etc.
Mining is considered as one of the important component of the economy of a developed as well as of a developing country, it adds to the national income of a country at the same time results in employment generation on one hand and on the other hand it entails depletion , over utilization and exploitation of non-renewable resources.
Mine as per section 2(j) of Mines Act means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried from the earth by means of tunnelling and shafting as well as it includes open working or quarries. All power stations, convertor stations, rectifier stations, etc. used for supplying electricity[1], are also being covered under the ambit of mining. It includes different type of mining like,
Hydraulic Mining – mining by means of the application of water under pressure.
Open cut or strip mining –it deals with the excavation of the surface above the coal to expose the coal and then the digging and removing of the coal.
Placer mining – it is a process of obtaining the valuable material from placers by simple washing, by dredging, by hydraulic or other methods.
Quartz mining – it includes mining on veins or ore bodies in place as distinguished from surface digging or washing.
Oil and gas mining – it deals with the extraction of oil and gas from the earth, which earlier was not considered as mining but due to the recognition of oil and gas as minerals and due its common usage, extraction and products of oil and gas from earth is now regarded as mining.
Whether any excavation is a mine depends on the mode in which it is worked not on the substance obtained from it.[2]
Ownership
Owner S.2(l) means any person who is the lessee( person who holds the lease of a property), immediate proprietor or occupiers of the mine or any part of the mine.it also includes the contractor and the claimant, but it does not include a person who merely receives a royalty, rent or fine from the mine, or is merely proprietor of the mine, subject to any lease, grant or license or license for the working thereof, or is merely the owner of soil and not interested in the mineral of the mine. Any contractor or sublessee for the working of mine or any part shall be subject to this Act.
In order to examine the working Central Government has power to appoint Chief Inspectors and Inspectors. Along with it Central Government also is empowered to appoint a committee. The Chief Inspector is a part of the Committee and along with the committee members it look into the issue relating to mining which includes the wages, health care and working hours of the workers.
Licensing
According to Black fifth edition law dictionary, license means “the permission by competent authority to do an act which without such permission would be illegal.” Licencing can be seen as a medium or source of imposing a legal framework and legal backup support for allocation of resources which are scares, to manage the completing interest. Many country for the safety of environment and in regards to public health, are using licencing as a blanket
Mining right is right granted to occupy land for purpose of mining either by underground excavation or open working to obtain minerals or ore from it. Right of mining is guided by the process of licensing, which has been mentioned in The Mines and Minerals (Regulation and Development) Act, 1957. No licensing or mining lease shall be granted otherwise than in accordance with the provisions of this Act.
As per Mining Act, 1952 the owner, agent or manager of a mine before commencement of mining operation has to provide a notice in writing to the Chief Inspector, the Controller, Indian Bureau of Mines and the District Magistrate in which the mine is situated and the notice should reach the concerned person one month before commencement of any mining operation.
Types of licensing
Minerals have been defined under Section 2(jj) of the Mining Act, which includes all substances which can be obtained from the earth including natural gases and petroleum. Minerals are further divided into minor minerals which include building stones, gravel, ordinary sand and other minerals which the central government may declare to be minor minerals. Major minerals are minerals other than minor minerals. These licensing provisions applies to major minerals.
Licenses in mining sectors have been divided on the basis of different fees and different conditions, according to which licensing has been divided into three types:
- Prospecting or exploration licenses – this license grants a company right to search for exploitable mineral resources which are for commercial use within a defined area and for a time which has been prescribed by law.
- Production license – this type of license grants a company to extract minerals from a specific area for a prescribed period. Production license covers smaller area in comparison to prospecting license, but at the same time is granted for a longer duration.
- Others – the third type of licensing basically deals with small scale mining.
As per “The Mines and Minerals (Development and Regulation) Amendment Act, new category of mining license has been created
- Prospecting license-cum-mining lease – according to which a two stage process has been established, which includes prospecting operations followed by mining operations.
Law relating to grant of licensing
To obtain licensing, one has to provide an application accompanied with the prescribed fee to the State Government concerned. It is the discretion of the concerned State Government either to grant or refuse to grant license or lease on the basis of grounds mentioned in the Act. Licensing is also provided through the process of auction also.
In a case where two or more person has provided application for a prospecting license, the applicant whose application has been received earlier shall have the right for grant of licence. In this matter the court also look into the applicants.
- Special knowledge of or experience in mining operation,
- The financial resources it possess,
- Nature and quality of staff being employed,
- And such other qualification as may be prescribed by the state government.
The Central Government also has power in respect of granting and limiting the grant of license as the State government.
Limitation to licensing or mining lease
State government cannot grant license or mining lease to a person who unless:
- holds a certificate of approval in form prescribed by State Government,
- produces an income-tax clearance certificate
- satisfies other conditions as may be prescribed by stated
Also license or lease of mining is not provided to a person who is not Indian as well as in respects to those minerals as prescribed in the First Schedule of Indian Constitution, unless there is a previous approval of the Central Government.
Licensing is also limited on the basis of area being granted, which states that a person cannot acquire in any one state with respects to mineral or prescribed group of minerals:
- one or more licenses covering a total area of more than twenty-five square kilometres,
- one or more mining lease covering more than ten square kilometres.
- any mining lease or license in respect to area which is not compact or contiguous.
Unless the Central government finds it in the interest of development of any mineral.
The government when provides licensing at the same time it grants the period for which a prospecting license is valid which has been mentioned in Mines and Minerals (Regulation and Development) Act, which states that:
- in case of mica, license is granted for a period of one year
- whereas in the case of any other minerals, license is granted for two years.
And after the expiry of the prescribed period it can be renewed again for the same prescribed period.
If the prospecting licence or a mining lease holder fails without sufficient cause to provide information or documents or returns, shall be punishable with imprisonment which may extend to one year or fine which may extend to five thousand or both.
Conclusion
The provisions of this Act does not applies to mine or a part therefore in which excavation is being made for prospecting purposes and not for the purpose of obtaining minerals for use or for sale. This Mining Acts covers all the part included in the process of mining licensing, ownership, role of both central as well as state government at the same time it provides protecting to the workers through its different provisions which deals with the working hours and the wages of the workers. The main purpose of establishing licensing system was for promoting environmental protection, hazardous material control, safety and effectiveness of medicines, controlling the use of scarce and finite resources and protecting workers safety and rights, which has been ensured by this Act.
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[1] D.L.F. Power Ltd v. UOI, AIR 2002 Jhar.
[2] Certainteed Products Cor. V. Comly
