SRO-105 gross violation of J&K’s constitution

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Recommending revocation of SRO-105 under which non-state subjects could participate in bidding in mining, Legislative Assembly (LA) House committee in its report said it was in grass violation of Jammu and Kashmir Constitution.

13 member house committee headed by Mohammad Akbar Lone, was set up by speaker Kavinder Gupta after Members, cutting across party lines, demanded revocation of the SRO, alleging that it will help non state subject contractor, particularly from Punjab, as local contractor cannot complete with them because of high security deposits. The report was presented in the House by Lone today immediately after the Question-Hour was over.

SRO issued during Governor rule in the state after the death of Chief Minister Mufti Mohammad Sayeed, was in gross violation of Constitution of Jammu and Kashmir, Jammu and Kashmir Land Alienation Act, State Subject Act, Jammu and Kashmir Transfer of Property Act and Jammu and Kashmir Land Grants Act and Jammu and Kashmir Land Grants Act and the rules. The prohibition is reinforced by Irshad dated 29 Maghar, 1943, the report said.

It further said that an important dimension of the State Subject Order 1927, Section 6 Constitution of Jammu and Kashmir, Articles 35-A and 370 Constitution of India and State Land Laws is exclusive rights of Permanent Residence over the immovable property and all rights and interests arising out of the attached to immovable property with the territory of Jammu and Kashmir State.

The eight page report in English said Section 4 Alienation of Land Act, 1938 AD prohibits transfer of land in favour of Non State Subjects and prohibition is reinforced by Irshad dated 29 Maghar 1943. Grant of mineral concession like mining lease, mining license, quarry license, Short Term Permit and Disposable Permit is to involve transfer of interest of immovable property and therefore would fall within the ambit of Section 4 of the Act. Committee recommended that J&K Minor Mineral Concession, Storage, Transportation of Minerals and Prevention of illegal mining Rules 2016 issued under SRP-105 dated March 31, 2016 be revoked, ab initio.

However, the report said that in exercise of powers under Section 15 read with Section 23(c) The Mine and Minerals (Development) act 1957, new Rule be framed after due consultation with all  stakeholders, replacing the Minor Mineral Concession Rules, 1962 issued vide SRO 58 on April 10,1962.

The report said that SRO-105 ignores and disregards the Constitutional and Statuary imperative relevant to grant Prospecting License, Mining lease, quarry licenses and other Minor Mineral Concessions. It deprives the Permanent Residents (PRs)of State of exclusive right to get. It on the other hand throws wide open Mineral Concessions within the state to Non Permanent Residents (NPRs). SRO is to open flood gates for the NPRs to the prejudice of the permanent residents of the state.

New Rules, provide for allotment of Mineral Concessions by open auction. The permanent resident of the state, under the rule, are to compete with non permanent residents who will practically loose the ground to NPRs who have better resources, expertise, equipment and technical manpower. This shall adversely affect the business and employment prospects of the PRs.

Report further said that SRO-105 prescribes exorbitant rates in the name of non-refundable fee, transfer fee, security deposit, guarantee amount. The New Rules are to send prices of Minor Minerals, including building stones, gravel, ordinary clay, ordinary sand, and limestone sky rocketing. This shall lead to spiral increase in building cost, with increase in unemployment of skilled and non skilled workers. The section of the population badly affected would be labourers, small time businessmen, boatmen and other workmen in unorganized sector.

The report said that the proposed rules should clearly state that all mineral concessions should be subject to the laws governing the transfer of property in the state. Authority to grant Mining Lease be vested in the Government irrespective of the areas of lease. The authority be grant quarry licence however, may be given to Director of Geology and mining.

The committee also recommended that rates of fee, non refudable fee, transfer fee, security deposit, guarantee amount and royalty be rationalized so that small entrepreneurs, workers, labourers and other disempowered people of the state, who earn their livelihood from quarry, short term permit, or disposal permits are not kept at weigh and deprived of their livelihood.

The committee also recommended that the open auction mode and e-tendering be restricted to the Mining Lease where the lease area is more than 25 hectares. In grant of small mining lease, quarry lience, short term permit or disposal permit the method in vogue under the J&K Minor Concession Rule, 1962 be maintained.

The proposed Rules, must prescribe where ever possible the volume of Minor Mineral permited to the extracted, mined under lease of quarry licence so as to rule out over exploitation of the mines and its negative spill over on the environment. The committee in its recommendation said that the proposed Rule be prepared , framed and notified preferably within three months and till the Rules are so made and notified, the Jammu and Kashmir Minor Mineral Concession Rule 1962 issued vide SRO 58 on April 10, 1962 may be followed subject to the condition that certificate of approval would be granted only to a PR of the state or the partnership comprising of PRs of the state.

The other Members of the committee were Hakim Mohammad Yaseen, Mohammad Yousuf Targami, Nawang Rigzin Jora, Choudhary Sukhnandan Kumar , Syed Mohammad Altaf Bukhari, Javid Ahmad Rana, Mohammad Ashraf Mir, Devinder Singh Rana, Mohammad Yousuf Bhat, Rajiv Jasrotia, Javid Hussain Beig, Bashir Ahmad Dar (All MLAs) while  Ranbir Singh Pathania and Shakti Raj Singh also MLAS were special invitees. However, Choudhary Sukhnand Kumar resigned on June 25 from the committee in protest against allotting 40 hectars of mining to a Chandigrah based firm in Kathua in Jammu. The contract was cancelled and Director Mining was suspended.

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