Posted On:
01 SEP 2017 2:47PM by PIB Delhi
The
Ministry of Mines has prepared the draft Mineral (Auction) (Amendment) Rules,
2017 seeking to amend the Mineral (Auction) Rules, 2015.
As
part of the Pre-Legislative Consultation Policy, the draft Amendment Rules
along with an Explanatory Note explaining the provisions of the proposed draft Amendment
Rules are available on the website of the Ministry at www.mines.gov.in and
are made available below as well. Comments/ suggestions are invited from the
general public, Governments of States and Union Territories, Mining Industry,
Stake Holders, Industry Associations, and other persons and entities concerned,
on the draft Amendment Rules. The last date for receipt of the comments/ suggestions
is 30 September 2017.
The
comments/suggestions may be sent by e-mail in MS-Office Word to the following
ID:
pv.kumar70[at]nic[dot]in
The
subject of the e-mail should be “Comments/suggestions on Mineral (Auction)
(Amendment) Rules, 2017”.
Alternatively,
comments/suggestions may also be sent by post to the following address:
Veena
Kumari Dermal, Director
Ministry
of Mines
Room
No 308, D-Wing
Shastri
Bhawan
Dr
Rajendra Prasad Road
New
Delhi -110 001
The
envelope may kindly be super scribed on the top with: “Comments/suggestions
on Mineral (Auction) (Amendment) Rules, 2017”.
[To be published in the Gazette of
India, Extraordinary, Part II, Section 3, Sub-section (i)]
GOVERNMENT
OF INDIA
MINISTRY
OF MINES
NOTIFICATION
New
Delhi, the (date), 2017.
G.S.R.
(E).— In exercise of the powers conferred by section 13 of the Mines and
Minerals (Development and Regulation) Act, 1957 (67 of 1957), the Central
Government hereby makes the following rules to amend the Mineral (Auction)
Rules, 2015, namely:-
1. (1) These rules may be
called the
Mineral (Auction)
(Amendment)
Rules, 2017.
(2) They shall come into force on the
date of their publication in the Official Gazette.
2.
In the Mineral (Auction)
Rules, 2015 (hereinafter referred to as the principal rules), in rule 2, in
sub-rule (1), in clause (m), after sub-clause (ii), the
following proviso shall be inserted, namely:–
“Provided
that if for any mineral and/or mineral grade, the average sale price in respect
of any State for any month is not published by Indian Bureau of Mines, the all
India average sale price published by Indian Bureau of Mines for such mineral
and/or mineral grade for that month shall be used.”
3.
In the principal
rules, for rule 3, the following shall be substituted, namely:–
“3. Application.– These rules
shall apply to all minerals, except (i) minerals notified as minor minerals
specified in clause (e) of section 3; (ii) minerals specified in Part A of the
First Schedule to the Act; and (iii) minerals specified in Part B of the First
Schedule to the Act having grade equal to or more than the threshold value as
prescribed under the Atomic Minerals Concession Rules, 2016.”
4.
In the principal
rules, in rule 6, in sub-rule (4), after clause (ii), the following proviso
shall be inserted, namely:–
“Provided that on or after DATE (date
of commencement of the Amendment), quantity of mineral equivalent to ten per
cent. of the total value of the mineral excavated in the previous five years, can
be sold in the current year.”
5.
In the principal
rules, in rule 9, in sub-rule (4), in clause (a),–
(i)
In second proviso
to sub-clause (iv), for the words “third and subsequent”, the word “second”
shall be substituted and after the words “the bidding process”, the words “on
the same terms and conditions as in the first attempt of auction as mentioned
in the notice inviting tender” shall be inserted; and
(ii)
In fourth proviso
to sub-clause (iv), for the words “to the fifty per cent. plus the number of
technically qualified bidders, whose initial price offers are identical less
the number of such identical initial price offers”, the words “beyond fifty per
cent. to the extent of tie” shall be substituted.
6.
In the principal
rules, in rule 10,–
(i)
after sub-rule
(6), the following proviso shall be inserted, namely:–
“Provided that no Mining Lease Deed
shall be executed on expiry of a period of three years from the date of the
letter of intent, and the letter of intent will be invalidated leading to
annulment of the entire process of auction and the state government may grant
the mineral block only through a fresh auction process:
Provided further that the State
Government may allow a further period of two years for execution of the Mining
Lease Deed if the preferred bidder or the successful bidder, as the case may
be, has obtained either Stage-I approval of the Forest Clearance as required
under the provisions of the Forest (Conservation) Act, 1980, or the
Environmental Clearance as required under the Environmental Impact Assessment
Notification, 2006 as amended from time to time, issued under the
provisions of the Environment (Protection) Act, 1986.”
7.
In the principal
rules, wherever the words
“Mineral
Concession Rules, 1960” occur, the words “Minerals (Other than Atomic and Hydro
Carbons Energy Minerals) Concession Rules, 2016” shall be substituted.
8.
In the principal
rules, in rule 11, in sub-rule (2), after the words “adjusted in full”, the words
“at the earliest” shall be inserted and for the words “within the first five
years of ”, the words “on” shall be substituted.
9.
In the principal
rules, in rule 12, in sub-rule (1), for the word “successful”, the word
“preferred” shall be substituted and after the words “reassessed value of
estimated resources”, the words “, including the value of any newly discovered
mineral that may be included in the mining lease deed on its discovery” shall
be inserted.
10.
In the principal
rules, in rule 18, in sub-rule (6), in clause (a), after the words “shall be
terminated”, the words “, and the performance security provided by the holder
of the Composite Licence shall be returned” shall be inserted.
11.
In the principal
rules, in rule 19, in sub-rule (2), after the words “value of estimated
resources”, the words “established by the holder of the Composite Licence after
completion of prospecting operations in accordance with sub-section (9) of
section 11 resulting in determination of evidence of mineral contents conforming
to the Mineral (Evidence of Mineral Contents) Rules, 2015”.
12.
In the principal
rules, for
Schedule I, the following Schedule shall be substituted, namely:–
“SCHEDULE
I
Terms
and conditions of eligibility
[See
rules 6(1) and 6(2)]
1.
The
following net worth requirements shall be applicable for an auction of mining
lease depending on the Value of Estimated Resources,-
(a) If
the Value of Estimated Resources is more than Rupees 500 Crores, the applicant,
including an individual, shall have a net worth more than 2% of Value of
Estimated Resources.
(b) If
the Value of Estimated Resources is less than or equal to Rupees 500 Crores,
the applicant, including an individual, shall have a net worth more than 1% of
Value of Estimated Resources.
2.
In
case of auction of Composite Licence, the applicant must have a net worth of
more than 1% of the Value of Estimated Resources.
Explanation:
(1)
In
case an applicant is a subsidiary of another company incorporated in India, the
net worth of such holding company may also be considered:
Provided
that, in such case, the applicant must continue to be a subsidiary of such
holding company until such time the applicant meets the aforementioned net
worth threshold.
(2)
In
case of a Company, the Net worth shall be the sum of paid up share capital and
the free Reserves as per the audited Balance Sheet of the financial year ended
immediately preceding the date of issuance of notice inviting tender.
(3)
In
case the notice inviting tender is issued between 1st April to 30th September
(both days inclusive), the audited Balance Sheet of the financial year before
the immediately preceding financial year, from the date of issuance of notice
inviting tender, may be submitted by the bidder.
(4)
In
case of an individual, the Net worth shall be the closing cash balance on the
last date for submission of application, and such amount may include amount in
Savings Bank accounts in Scheduled Bank/ Post Office, free and un-encumbered
Fixed Deposits in Scheduled Banks, Post Office, Listed Companies/Government
Organisation/Public Sector Undertaking of State and Central Government, Kisan
Vikas Patra, National Saving certificate, Bonds, Shares of Listed Companies,
Listed Mutual Funds, Unit Linked Insurance Plan, Public Provident Fund,
Surrender Value of Life Insurance policies in the name of Applicant.”
13.
In the principal
rules, for Schedule III, the following Schedule shall be substituted, namely:–
“SCHEDULE
III
Format
of Performance Security for Mining Lease
[See
rule 12(2)]
[Reference number of
the bank]
[date]
To
The Governor of [Name
of State]
[address]
WHEREAS
A.
[Name
of the Preferred Bidder] incorporated in India under the Companies Act,
[1956/2013] with corporate identity number [CIN of the Preferred Bidder], whose
registered office is at [address of registered office], India and principal
place of business is at [address of principal place of business, if different
from registered office] OR [Name of individual] who is citizen of India, having
income tax permanent account number [number], residing at [address] OR
[partnership firm/association of individuals], all members of whom are Indian
citizens and residents of India whose principal place of business is at
[address of principal place of business] (the " Preferred Bidder ")
is required to provide an unconditional and irrevocable bank guarantee for an
amount equal to INR [figures] (Indian Rupees [words]) as a performance security
valid until [date of expiry of performance bank guarantee] ("Expiry
Date").
B.
The
Performance Security is required to be provided to The Governor of [Name of
State], (the "State") for discharge of certain obligations under the
Tender Document dated, [date] with respect to auction of [particulars of
auction] and the Mine Development and Production Agreement to be executed
between the State and the Successful Bidder (collectively the
"Agreement").
C.
We,
[name of the bank] (the "Bank") at the request of the Preferred
Bidder do hereby undertake to pay to the State an amount not exceeding INR
[figures] (Indian Rupees [words]) ("Guarantee Amount") to secure the
obligations of the Preferred Bidder under the Agreement on demand from the
State on the terms and conditions herein contained herein.
NOW THEREFORE, the Bank
hereby issues in favour of the State this irrevocable and unconditional payment
bank guarantee (the "Guarantee") on behalf of the Preferred Bidder in
the Guarantee Amount:
1.
The
Bank for the purpose hereof unconditionally and irrevocably undertakes to pay
to the State without any demur, reservation, caveat, protest or recourse,
immediately on receipt of first written demand from the State, a sum or sums
(by way of one or more claims) not exceeding the Guarantee Amount in the
aggregate without the State needing to prove or to show to the Bank grounds or
reasons for such demand for the sum specified therein and notwithstanding any
dispute or difference between the State and Preferred Bidder on any matter
whatsoever. The Bank undertakes to pay to the State any money so demanded
notwithstanding any dispute or disputes raised by the Preferred Bidder in any
suit or proceeding pending before any court or tribunal relating thereto the
Bank's liability under this present being absolute and unequivocal.
2.
The
Bank acknowledges that any such demand by the State of the amounts payable by
the Bank to the State shall be final, binding and conclusive evidence in
respect of the amounts payable by Preferred Bidder to the State under the
Agreement.
3.
The
Bank hereby waives the necessity for the State from demanding the aforesaid
amount or any part thereof from the Preferred Bidder and also waives any right
that the Bank may have of first requiring the State to pursue its legal
remedies against the Preferred Bidder, before presenting any written demand to
the Bank for payment under this Guarantee.
4.
The
Bank further unconditionally agrees with the State that the State shall be at
liberty, without the Bank's consent and without affecting in any manner the
Bank's obligation under this Guarantee, from time to time to:
(i)
vary
and/or modify and of the terms and conditions of the Agreement;
(ii)
extend
and / or postpone the time for performance of the obligations of the Preferred
Bidder under the Agreement, or
(iii)
for
bear or enforce any of the rights exercisable by the State against the
Preferred Bidder under the terms and conditions of the Agreement.
and the Bank shall not
be relieved from its liability by reason of any such act or omission on the
part of the State or any indulgence by the State to the Preferred Bidder or
other thing whatsoever which under the law relating to sureties would, but for
this provision, have the effect of relieving the Bank of its obligations under
this Guarantee.
5.
Any
payment made hereunder shall be made free and clear of and without deduction
for, or on account of, any present or future taxes, levies, imposts, duties,
charges, fees, commissions, deductions or withholdings of any nature
whatsoever.
6.
The
Bank agrees that State at its option shall be entitled to enforce this
Guarantee against the Bank, as a principal debtor in the first instance without
proceeding at the first instance against the Preferred Bidder.
7.
The
Bank further agree that the guarantee herein contained shall remain in full force
and effect during the period that specified in the Agreement and that it shall
continue to be enforceable till all the obligations of the Preferred Bidder
under or by virtue of the said Agreement with respect to the Performance
Security have been fully paid and its claims satisfied or discharged or till
the State certifies that the terms and conditions of the Agreement with respect
to the Performance Security have been fully and properly carried out by the
Preferred Bidder and accordingly discharges this guarantee. Notwithstanding
anything contained herein, unless a demand or claim under this guarantee is
made on the Bank in writing on or before the Expiry Date the Bank shall be
discharged from all liability under this guarantee thereafter.
8.
The
payment so made by the Bank under this Guarantee shall be a valid discharge of
Bank's liability for payment thereunder and the State shall have no claim
against the Bank for making such payment.
9.
This
Guarantee is subject to the laws of India. Any suit, action, or other
proceedings arising out of this Guarantee or the subject matter hereof shall be
subject to the exclusive jurisdiction of courts at the State of [respective
State].
10.
The
Bank has the power to issue this Guarantee in favour of the State. This
guarantee will not be discharged due to the change in the constitution of the
Bank
11.
The
Bank undertakes not to revoke this Guarantee during its currency except with
the previous consent of the State in writing.
12.
The
State may, with prior intimation to the Bank, assign the right under this
Guarantee to any other departments, ministries or any governmental agencies,
which may act in the name of the Governor. Save as provided in this Clause 12,
this Guarantee shall not by assignable or transferable.
13.
Notwithstanding
anything contained herein,
a.
the
liability of the bank under this bank guarantee shall not exceed the Guarantee
Amount.
b.
This
bank guarantee shall be valid up to the Expiry Date.
14.
The
Bank is liable to pay the guaranteed amount or any part thereof under this bank
guarantee only and only if the State serves upon the Bank a written claim or
demand on or before the Expiry Date.
Dated the [day] day of
[month] [year] for the Bank.
In witness whereof the
Bank, through its authorized officer, has set its hand and stamp.
________________________
(Signature)
________________________
(Name and Designation)
(Bank
Stamp)”.
14.
In the
principal rules, after Schedule III, the following Schedule shall be inserted,
namely:–
SCHEDULE
IV
Format
of Performance Security for Composite Licence
[See
rule 18(1)]
[Reference
number of the bank] [date]
To
The
Governor of [Name of State]
[address]
WHEREAS
A. [Name
of the Preferred Bidder] incorporated in India under the Companies Act,
[1956/2013] with corporate identity number [CIN of the Preferred Bidder], whose
registered office is at [address of registered office], India and principal
place of business is at [address of principal place of business, if different
from registered office] OR [Name of individual] who is citizen of India, having
income tax permanent account number [number], residing at [address] OR
[partnership firm/association of individuals], all members of whom are Indian
citizens and residents of India whose principal place of business is at
[address of principal place of business] (the “Preferred Bidder”) is required
to provide an unconditional and irrevocable bank guarantee for an amount equal
to INR [figures] (Indian Rupees [words]) as a performance security valid for an
initial period of [●]([●]) years from the date hereof (“Expiry
Date”).
B. The
Performance Security is required to be provided to The Governor of [Name of
State], (the “State”) for discharge of certain obligations under the Tender
Document dated, [date] with respect to auction of [particulars of auction] and
the [letter of intent to be issued by the State to the Preferred Bidder for
grant of composite licence, the deed for grant of a prospecting licence to be
executed between the State and the Successful Bidder and the letter of intent
issued by the State to the Successful Bidder for grant of the mining lease/
letter of intent issued by the State to the Successful Bidder for grant of the
mining lease, the Mine Development and Production Agreement to be executed
between the State and the Successful Bidder and the mining lease deed to be
executed between the Successful Bidder and the State] (collectively with the
Tender Document, the “Agreement”).
C. We,
[name of the bank] (the “Bank”) at the request of the Preferred Bidder
or Successful Bidder do hereby undertake to pay to the State an amount not
exceeding INR [figures] (Indian Rupees [words]) (“Guarantee Amount”) to
secure the obligations of the Preferred Bidder or Successful Bidder under the
Agreement on demand from the State on the terms and conditions herein contained
herein.
NOW
THEREFORE, the Bank hereby issues in favour of the State this irrevocable and
unconditional payment bank guarantee (the “Guarantee”) on behalf of the
Preferred Bidder or Successful Bidder in the Guarantee Amount:
1. The
Bank for the purpose hereof unconditionally and irrevocably undertakes to pay
to the State without any demur, reservation, caveat, protest or recourse,
immediately on receipt of first written demand from the State, a sum or sums
(by way of one or more claims) not exceeding the Guarantee Amount in the
aggregate without the State needing to prove or to show to the Bank grounds or
reasons for such demand for the sum specified therein and notwithstanding any
dispute or difference between the State and Preferred Bidder or Successful Bidder
on any matter whatsoever. The Bank undertakes to pay to the State any money so
demanded notwithstanding any dispute or disputes raised by the Preferred Bidder
or Successful Bidder in any suit or proceeding pending before any court or
tribunal relating thereto the Bank’s liability under this present being
absolute and unequivocal.
2. The
Bank acknowledges that any such demand by the State of the amounts payable by
the Bank to the State shall be final, binding and conclusive evidence in
respect of the amounts payable by Preferred Bidder or Successful Bidder to the
State under the Agreement.
3. The
Bank hereby waives the necessity for the State from demanding the aforesaid
amount or any part thereof from the Preferred Bidder or Successful Bidder and
also waives any right that the Bank may have of first requiring the State to
pursue its legal remedies against the Preferred Bidder or Successful Bidder,
before presenting any written demand to the Bank for payment under this
Guarantee.
4. The
Bank further unconditionally agrees with the State that the State shall be at
liberty, without the Bank’s consent and without affecting in any manner the
Bank’s obligation under this Guarantee, from time to time to:
i.
vary and/or modify and of the terms and
conditions of the Agreement;
ii.
extend and / or postpone the time for
performance of the obligations of the Preferred Bidder or Successful Bidder
under the Agreement, or
iii.
forbear or enforce any of the rights
exercisable by the State against the Preferred Bidder or Successful Bidder under
the terms and conditions of the Agreement,
and
the Bank shall not be relieved from its liability by reason of any such act or
omission on the part of the State or any indulgence by the State to the
Preferred Bidder or Successful Bidder or other thing whatsoever which under the
law relating to sureties would, but for this provision, have the effect of
relieving the Bank of its obligations under this Guarantee.
5. Any
payment made hereunder shall be made free and clear of and without deduction
for, or on account of, any present or future taxes, levies, imposts, duties,
charges, fees, commissions, deductions or withholdings of any nature
whatsoever.
6. The
Bank agrees that State at its option shall be entitled to enforce this
Guarantee against the Bank, as a principal debtor in the first instance without
proceeding at the first instance against the Preferred Bidder or Successful
Bidder.
7. The
Bank further agrees that this bank guarantee and the guarantee obligations
herein contained shall remain in full force and effect and shall continue to be
enforceable till (i) all the obligations of the Preferred Bidder or Successful
Bidder under or by virtue of the said Agreement with respect to the Performance
Security have been fully paid and its claims satisfied or discharged; or (ii)
till the State certifies that the terms and conditions of the Agreement with
respect to the Performance Security have been fully and properly carried out by
the Preferred Bidder or Successful Bidder and accordingly discharges this
guarantee; [or (iii) on provision of a revised performance security under Rule
19(2) of the Mineral (Auction) Rules, 2015] whichever is later. Notwithstanding
anything contained herein, unless a demand or claim under this guarantee is
made on the Bank in writing on or before the Expiry Date the Bank shall be
discharged from all liability under this guarantee thereafter.
8. The
payment so made by the Bank under this Guarantee shall be a valid discharge of
Bank’s liability for payment thereunder and the State shall have no claim
against the Bank for making such payment.
9. This
Guarantee is subject to the laws of India. Any suit, action, or other
proceedings arising out of this Guarantee or the subject matter hereof shall be
subject to the exclusive jurisdiction of courts at the State of [respective
State].
10. The
Bank has the power to issue this Guarantee in favour of the State. This
guarantee will not be discharged due to the change in the constitution of the
Bank
11. The
Bank undertakes not to revoke this Guarantee during its currency except with
the previous consent of the State in writing.
12. The
State may, with prior intimation to the Bank, assign the right under this
Guarantee to any other departments, ministries or any governmental agencies,
which may act in the name of the Governor. Save as provided in this Clause 12,
this Guarantee shall not by assignable or transferable.
13. Notwithstanding
anything contained herein,
a. the
liability of the bank under this bank guarantee shall not exceed the Guarantee
Amount; and
b. this
bank guarantee shall be valid up to the Expiry Date.
14. The
Bank is liable to pay the Guaranteed Amount or any part thereof under this bank
guarantee only and only if the State serves upon the Bank a written claim or
demand on or before the Expiry Date.
Dated
the [day] day of [month] [year] for the Bank.
In
witness whereof the Bank, through its authorized officer, has set its hand and
stamp.
—————————————
(Signature)
___________________________
(Name
and Designation)
(Bank Stamp)”.
[F. No. 1/1/2017-M.IV]
(Bipul Pathak)
Joint Secretary to the Govt. of India
Note:-
The Mineral (Auction) Rules, 2015 were published in the Gazette of India,
Extraordinary, part II, Section 3, Sub-section (i) vide notification number
G.S.R. 406(E), dated the 20th May, 2015.
For AMENDMENT
PROVISIONS TO THE MINERAL (AUCTION) RULES, 2015 WITH EXPLANATORY NOTES, Click
here (Annexure).
YSKataria/MI