Indian Metals and Ferro Alloys Limited and another. vs Union of India and others

Indian Metals and Ferro Alloys Limited (hereinafter referred to as ''IMFA'')-petitioner no.1, a company incorporated under the Companies Act,

1956 and engaged in manufacture and sale of High Carbon Ferro Chrome and chrome ore, and Petitioner no.2, who is a shareholder and Director

of petitioner no.1 company and carrying out business through the instrumentality of petitioner no.1 company, have filed this application with

following prayer:

(i) Pass necessary directions, order or writs to the State Government to recommend the Eco- Sensitive Area within a period specified by this

Hon''ble Court as per the order of the Hon''ble Supreme Court dated 04.12.2006 and guidelines issued by MoEF dated 09.02.2011.

(ii) Pass necessary directions, orders or writs to the State Government to execute a supplementary lease deed for the area of 40.468 Ha. Of

Nuasahi Chromite Mines of the Petitioner Company in Village Dhanurjayapur and Bangur, under Hatadihi Tahsil in Keonjhar District of Odisha

and allow the petitioner Company to undertake mining operations.

(iii) Pass any other directions, orders or writs, as deemed fit, in the interest of justice by this Hon''ble Court"".

The factual matrix of the case in hand is that originally Dhanurjayapur Chromite Mine over an area of 200 acres was granted to one M/s

Serajuddin & Co. for a period of 30 years by the then Raja of Keonjhar. After promulgation of Orissa Estate Abolition Act, 1951, the rights of

Raja (Zamindar) of Keonjhar estate vested in the State of Orissa and thereafter the State became the authority under the statute to grant mining

lease. The Collector and District Magistrate, Keonjhar executed a renewal mining lease in respect of Dhanurjayapur Chromite Mine in favour of

M/s Serajuddin & Co. on 29.09.1983 for a period of 20 years w.e.f. 01.12.1974. During said period of renewal, M/s Serajuddin & Co. applied

to the State of Odisha on 03.01.1991 for transfer of the said Dhanurjayapur Chromite Mine in favour of petitioner company. Accordingly, State of

Orissa through the Department of Steel & Mines (opposite party no.2) accorded permission for transfer of said lease in favour of petitioner

company for remaining period, vide order dated 18.02.1991, subject to the condition that petitioner company will undertake direct mining

operation in observance of the terms and conditions of the lease and provisions of the Mineral Concession Rules, 1960, as well as Mines and

Minerals Development and Regulation Act, 1957. Consequentially, transfer of mining lease deed was executed on 08.05.1991 and the possession

of the mine was delivered to the petitioner company on 09.05.1991. Thereafter, the second renewal of the lease was executed by the State

Government through the Collector, Keonjhar on 29.04.2000 for a further period of 20 years w.e.f. 01.12.1994 valid up to 30.11.2014. In the

renewal application dated 20.09.1993, it was stipulated that mineral raised would be utilized entirely in the manufacture of charge chrome in its

plant. Before expiry of the period, i.e., 30.01.2014, the petitioner company filed an application for renewal on 20.11.2013, which was received in

prescribed Form-D on 25.11.2013, but the same is pending till date.

The mining having been situated near the sanctuary known as ""Hadagarh Sanctuary"", which was declared as per the notification of the

Government on 06.12.1978 in exercise of power conferred under Section 18 of Wildlife (Protection) Act, 1972, unless necessary clearance is

given by the competent authority, the same cannot be permitted to be operated.

The apex Court, vide order dated 04.08.2006 in W.P.(C) No.202 of 1995 (T.N. Godavarman Thirumpad v. Union of India) and dated

04.12.2006 in W.P.(C) No.460 of 2004 (Goa Foundation v. Union of India), held that since mining area situated within the eco-sensitive area, the

petitioner company is required to obtain necessary environmental clearance from the competent authority.

The application for renewal of lease dated 20.11.2013, which was received in Form-D on 25.11.2013, has not been granted for want of

environmental clearance. But pending consideration of renewal application, the Mines and Minerals (Development & Regulation) Act, 1957 was

amended w.e.f. 12.01.2015 vide Mines and Minerals (Development and Regulation) Amendment Act, 2015. By virtue of the provisions contained

under Section 8A (5) of the MMDR Amendment Act, 2015 where mineral is used for captive purpose and the mining lease shall be deemed to be

extended up to a period ending on 31.03.2030 w.e.f. the date of expiry of the period of renewal last made or till the completion of renewal period,

if any, or a period of fifty years from the date of grant of such lease, whichever is later, subject to the condition that all the terms and conditions of

the lease have been complied with.

Sri S.K. Padhi, learned Senior Counsel appearing along with Sri S.S. Mohanty, learned counsel for the petitioners contended that though the

petitioner has made a prayer to execute the supplementary lease deed, but in effect he couched his prayer stating that once the renewal application

dated 20.11.2013 in respect of Dhanurjayapur Chromite Mine is pending and no renewal has been granted till date, in view of the provisions

contained under Section 8A (5) of the MMDR Amendment Act, 2015, the renewal should be granted subject to condition that unless the

petitioner company obtain necessary environmental clearance and other statutory compliance, it will not operate the same.

This Court, vide order dated 04.01.2018, directed Sri B.P. Pradhan, learned Addl. Government Advocate to obtain necessary instruction and

file an affidavit. In compliance of the same, an affidavit dated 10.01.2018 has been filed in Court today (11.01.2018) and the same is taken on

record. In paragraphs-11 and 12 thereof, it has been stated as follows:-

That however, reference is drawn to the letter No.F.No.1-18/2017 WL dated 22.03.2017 of MoEF & CC (Wildlife Division) on the subject

matter wherein it has been reported that;

As per said interim orders of the Hon''ble Supreme Court, mining operations are prohibited within the safety zone of 1km from the boundary of the

protected areas. The Ministry would not concur with the proposal of the State Government to allow operations of mine as long as the aforesaid

order of the Hon''ble Supreme Court is in force and all other relevant clearance are obtained. Further, Standing Committee of National Board for

wild life would not consider mining cases within 1 km zone from the boundary of National Park/Wildlife Sanctuary. (Annexure-D/2).

That in view of the above clarification of MoEF (Annexure-D/2), there is no scope in extending the mining lease of IMFA for Chromite,

Magnetite and Serpentinite over an area of 40.468 hects in village Dhanurjoypur and Bangur of Keonjhar. However, the matter will be considered

in the IDC after clarification/reply of MoEF is received. That apart, before grant of renewal in terms of Section 8(A) of MMDR (Amendment)

Act, State Government has to be satisfied that ll the terms and conditions of the lease has been complied with by the petitioner/lessee. Due to

interim order passed by the Hon''ble Supreme Court, State Government has yet to examine as to whether all the terms and conditions of the lease

has been fully complied or not.

The apex Court in W.P.(C) No.114 of 2014 (Common Cause v. Union of India) disposed of on 04.04.2016, in paragraph-32 (v) of the

judgment after interpreting Section 8A of MMDR Act, 1957 held as follows:

32(v). A leaseholder who had moved a second (third or subsequent) renewal application under Section 8(3) of the unamended MMDR Act, at

least twelve months before the renewed lease was due to expire, and whose application had not been considered and rejected (though not entitled

to any benefit under the unamended Section 8A of the MMDR Act and the amended Rule 24A(6) of the Mineral Concession Rules up to

12.01.2015, would still have the benefit of sub-sections (5) and (6) of Section 8A of the amended MMDR Act, in view of the situation sought to

be remedied by the Mines and Minerals (Development and Regulation) Amendment Act, 2015.

In view of such position, the application for renewal having been filed on 20.11.2013, i.e., well before 12 months of expiry of the lease on

30.11.2014, the benefit under Section 8A (5) of the MMDR Amendment Act, 2015 would accrue by granting renewal to the petitioner company

and extend the period of lease till 31.03.2030.

In view of the aforesaid factual matrix read with the contention raised by learned counsel for the parties, the undisputed fact being that the

petitioner company submitted its renewal application on 20.11.2013 which was received on 25.11.2013, but the same has not been renewed and,

as such, this fact has been admitted in paragraph-11 of the affidavit mentioned supra. Needless to say that the application for renewal having been

filed on 20.11.2013 and received on 25.11.2013, by that time the MMDR Amendment Act, 2015 had not seen the light of the day. In any case,

the same has been given effect to w.e.f. 04.04.2016. Therefore, in the change scenario, keeping in view the provisions contained in Section 8A (5)

of MMDR Amendment Act, 2015, if the application dated 20.11.2013 has been filed for renewal of mining lease in prescribed Form-D, the same

requires to be considered in accordance with law. As such, in paragraph-12 of the affidavit mentioned supra, it is contended that the State

Government has not yet examined as to whether all terms and conditions of the lease has been fully complied with by the petitioner company or

not.

At this juncture, Sri S.K. Padhi, learned Senior Counsel for the petitioners contended that in view of the affidavit filed on 11.01.2018 as per

paragraphs-11 and 12, let the State Government consider the renewal application dated 20.11.2013 of the petitioner in terms of the provisions

contained under Section 8A (5) of MMDR Amendment Act, 2015 within a stipulated time.

In view of such position, we dispose of the writ petition directing the State-opposite parties to consider the renewal application filed by the

petitioner company on 20.11.2013 in accordance with law keeping in view the provisions contained under Section 8A (5) of MMDR Amendment

Act, 2015 as expeditiously as possible, preferably within a period of eight weeks from the date of communication of this order.

With the above observation and direction, the writ petition stands disposed of.