Bombay High Court
HINDALCO INDUSTRIES LIMIED THROUGH V.R.SHANKAR AND ANRversusUNION OF INDIA THROUGH DIRECTOR GENERAL OF FORESTS MINISTRY OF ENVIRONMENT FOREST AND CLIMATE AND O
- Disposal
- Disposed Off
Holding
The mining lease was deemed valid under Rule 24B for a 20‑year period and Section 8A(5) of the MMDR Act applies, so the forest clearance is automatically extended co‑terminus with the lease, rendering the impugned order unlawful.
Summary
The petitioners, Hindalco Industries Ltd. and a shareholder, challenged a 27‑March‑2019 communication by the Ministry of Environment, Forests and Climate Change that closed their application for extending forest clearance for the Kasarsada mining lease. They contended that the original mining lease (1968‑1998) and its renewal were valid, that Rule 24B of the Mineral Concession Rules, 1960 entitled them to a 20‑year renewal for captive mining, and that the 2015 amendment to the MMDR Act (Section 8A) and MoEFCC guidelines of 2015 automatically extended the forest clearance co‑terminus with the lease up to 31 March 2030. The respondents argued that the lease had lapsed in 2008, that Section 8A(9) barred its application, and that the matter fell within the exclusive jurisdiction of the National Green Tribunal. The Court examined the interplay of the Forest (Conservation) Act, the MMDR Act, the Mineral Concession Rules, and the MoEFCC guidelines, concluding that the lease was valid under Rule 24B for a 20‑year period ending 21 May 2018 and that Section 8A(5) applied, rendering the forest clearance deemed extended. Consequently, the Court set aside the impugned order, directed the authorities to reconsider the pending forest‑clearance application, and disposed of the petition with directions for further relief.
Issues considered
- The validity of the mining lease and whether it remained in force as of 12 January 2015.
- Whether Rule 24B of the Mineral Concession Rules, 1960 entitles the petitioner to a 20‑year renewal for captive mining.
- Whether Section 8A(5) of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 and MoEFCC guidelines of 2015 automatically extend forest clearance co‑terminus with the lease.
- Whether Section 8A(9) bars the application of the amendment to a lease that allegedly lapsed in 2008.
- Whether the dispute is maintainable before the High Court under Article 226 or exclusively before the National Green Tribunal.
Legislation cited
- Environment (Protection) Act, 1986
- Forest (Conservation) Act, 1980 — s. 2
- Forest (Conservation) Rules, 2003 — s. Rule 8(1)(b)
- Mineral Concession Rules, 1960 — s. Rule 24A, Rule 24B, Rule 31
- Mines and Minerals (Development and Regulation) Act, 1957 — s. 19, 8A(5), 8A(9)
- National Green Tribunal Act, 2010 — s. 14, 16
Subjects
- mining lease
- forest clearance
- captive mining
- Section 2 Forest Act
- Section 8A MMDR Act
- Net Present Value
- eco‑sensitive area
- natural justice
- jurisdiction
- National Green Tribunal
- Article 226
Judgment
SAGAR MAGAR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION. 11433 OF 2019
1. Hindalco Industries Limited
Being a public limited company incorporated
Under the Companies Act, 1956,
Having its registered office at Ahura Centre,
1st Floor, B – Wing, Mahakali
Caves Road, Andheri (East), Mumbai,
Maharashtra .
Through its Authorised Representative,
Mr. V. R. Shankar
2. Anil M. Mathew
A shareholder of Hindalco Industries Limited.
S/o. Mathew P Mathew, Age; about 50 years
Residing at 301 Carlton Court, Turner Road,
Bandra West, Mumbai – 400 050. … Petitioners
V/s.
1. Union of India,
Through the Director General of Forests,
Ministry of Environment, Forest and
Climate Change,
Having its address at Indira Paryavaran
Bhavan, Jorbagh Road,
New Delhi – 110 003.
2. Principal Secretary [forests],
Government of Maharashtra having its
Address at Mantralaya, Fort,
Mumbai, Maharashtra – 400 032.
3. Principal Chief Conservator of Forests,
Head of Forest Force, Forest Department ,
Government of Maharashtra having its
Address at Van Bhavan, Civil Lines,
Nagpur, Maharashtra – 400 001
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4. Principal Secretary, Industries and
Mines Department,
Government of Maharashtra having its
Address at Mantralaya, Fort, Mumbai,
Maharashtra- 400 032.
5. State of Maharashtra
Through Government Pleader
High Court, Appellate side,
Mumbai, Maharashtra – 400 032. … Respondents
______________________
Mr. Ashish Prasad, Ms. Mukta Dutta, Ms. Anubha Rastogi, Ms. Sneha
Herwade, Mr. Aditya Joshi i/b ACARA Law, for the Petitioners.
Mr. Vijay Killedar, with Mr. Shivraj Jagadale and Mr. Rahul Rote, Advocate for
Respondent No.1 (UOI).
Ms. Tejas J.Kapre, AGP for Respondent-State.
______________________
CORAM : MRS. VRUSHALI V. JOSHI &
RANJITSINHA RAJA BHONSALE, JJ.
RESERVED ON : 23rd JULY 2026.
PRONOUNCED ON : 17th AUGUST 2026.
JUDGMENT (PER RANJITSINHA RAJA BHONSALE, J.)
1) By the present Petition, filed under Article 226 of the Constitution
of India, the Petitioners interalia seek to challenge the impugned
Communication dated 27th March 2019 issued by Respondent No.1. The
Petitioners further seek an Order or direction declaring that the Mining Lease
dated 5th January 2018 executed by Respondent No.4 in favour of Petitioner
No.1, under which the Kasarsada Mining Lease stood renewed till 31 st March
2030, is legal, valid and in compliance with Section 2 of the Forest
(Conservation) Act, 1980. The Petitioners also seek directions to the
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Respondents for handing over possession of the forest area admeasuring 30.64
Hectares forming part of the Kasarsada Mining Lease Area to Petitioner No.1
along with all mineral(s) lying thereat which have already been mined till 2 nd
October 2011 by Petitioner No.1. The Petitioners further seek to restrain the
Respondents, their officers and employees from interfering in any manner
with the resumption and continuation of mining operations at the Kasarsada
Mining Project situated at Taluka Chandgad, District Kolhapur, Maharashtra.
The Petitioners seek directions to Respondent Nos.2 and 3 to forthwith
determine and demand the Net Present Value (NPV), if any, payable by
Petitioner No.1 for use of the forest area admeasuring 30.64 hectares or any
other area forming part of the said mining project.
2) Heard Mr. Ashish Prasad, learned Advocate appearing for the
Petitioners, Mr. Vijay Killedar, learned Advocate appearing for the Respondent
No. 1, Ms. Tejas Kapre, learned AGP for the Respondent-State.
Factual Matrix
3) In order to appreciate the contentions of the parties, it would be
necessary to pen down some of the relevant and crucial dates and events
which have led to the filing of this Petition: -
3.1) On 21st May 1968, M/s. INDAL (now merged with Petitioner
No.1) was granted mining lease in respect of the Kasarsada Mining Project, for
an area of 319.70 hectares spread over six villages namely Bhogoli, Pilani,
Kokare, Umagaon, Nhaveli and Chandgad in Taluka-Chandgad, District-
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Kolhapur, Maharashtra ("the Mining Lease"). The Petitioner No.1 held the
mining lease for a mineral which was to be used in its own industry (Captive
use/purpose). The Mining lease was for a period of 30 years and valid till
22nd May 1998. The mining operations, commenced in the year 1974 after
obtaining all the requisite approvals and clearances.
3.2) During the subsistence of the Mining Lease, The Forest
(Conservation) Act, 1980 (For Short “FC Act”) came into force on 25 th October
1980. Under section 2 of FC Act, the prior approval of the Central
Government is required to be taken for the purposes of de-reservation of
forests or to use forest land for a non-forest purpose.
3.3) On 12th May 1997, Petitioner No.1, made an application to the
Government of Maharashtra under Rule 24A(1) of the then existing Mineral
Concession Rules, 1960, (For Short “MC Rules, 1960”) seeking renewal of
mining lease, for a period of 30 years. Petitioner No.1 sought renewal of the
Mining Lease over an area of 207.20 hectares out of 319.70 hectares. ("Mining
Lease Renewal Application").
3.4) After more than 2 years of the renewal application, the
Government of Maharashtra by its letters dated 23 rd July 1999 and 11th
October 1999, sought prior approval from the Central Government under
section 2 of the FC Act for renewal of the Mining Lease and construction of
feeder roads.
3.5) The Central Government and State Government on 10 th
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November 2000, 12th December 2000 and 13th June 2001, granted temporary
working permissions to Petitioner No.1 for continuing mining operations.
3.6) By letter dated 1st/3rd October 2001, the Central Government in
reference to the letters dated 23rd July 1999 and 11th October 1999 of the
Government of Maharashtra, conveyed to the Secretary (Forest), Government
of Maharashtra, its prior approval for Forest Clearance (for short FC Approval)
in accordance with section 2 of the FC Act, 1980 to the proposal submitted by
the State Government. The approval was in respect of 106.76 hectares forest
land for renewal of mining lease and construction of a feeder road. Under
condition 2(c) thereof, the mining lease was granted for period of 10 years,
for the reason that about 80% of the minerals had already been mined. The
permission was w.e.f. 10th November 2000. It was provided that, at the end of
5 years, the Ministry after confirming and checking that, the conditions are
complied with, would extend the permission for a further period of 5 years
("FC Approval").
3.7) By a letter dated 21st April 2006, the Ministry of Environment and
Forests, Government of India, addressed to the Secretary (Forest),
Government of Maharashtra, clarified that, the period of five years under the
FC Approval was to be counted from the date of issue of the FC Approval, i.e
from 3rd October 2001. The five-year period, would end on 2nd October 2006.
3.8) On 4th October 2006, the Central Government notified that, the
Petitioner No.1 would be allowed to carry out mining operations for another 5
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years in accordance with condition No.2(d) of the FC Approval. In effect, the
FC Approval was till 2 nd October 2011 i.e extended by 5 years from 2 nd
October 2006.
3.9) On 1st March 2007, the Government of India, Ministry of
Environment and Forests, granted environmental clearance under the EIA
Notification 2006, on certain terms and conditions.
3.10) By an Order dated 13th February 2008, the Government of
Maharashtra, Industries, Energy and Labour Department, granting the first
renewal of the Mining Lease for a period of 10 years from the date 22 nd May
1998 ("Mining Lease Renewal Order")
3.11) The Petitioner No.1 by letter dated 22 nd February 2008, addressed
to the Principal Secretary, Industries, Energy and Labour Department,
Government of Maharashtra, while referring to the Order dated 13 th February
2008, contended that: -
(i) Although the Central Government approved the lease renewal
from 10th November 2000 for 10 years, the State Government wrongly
made it effective from 22 nd May 1998, the date the original lease
expired.
(ii) The renewal order dated 13 th February 2008, though granting a
10-year renewal on paper, was effectively valid for only about three
months until May 2008.
(iii) Though Petitioner No. 1 was entitled to the first renewal of lease
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for a period of 20 years in terms of Rule 24B of the MC Rules, 1960 in
view of the FC Approval of 10 years, renewal was granted by the
State Government for 10 years. Instead of granting a renewal for 10
years from 10th November 2000 as approved by the Central
Government, the State Government has made it effective from 22 nd
May 1998.
The Petitioner No.1, therefore, sought correction of the order to extend
the lease till 2011 in line with the Central MoEF approval, or alternatively, for
a 20-year renewal under Rule 24B of the MC Rules, 1960.
3.12) By an undated letter allegedly issued by the Government of
Maharashtra to the Petitioner No.1, the duration of the mining lease was
clarified in the following terms
"Point No. 5- There is provision under Mineral Concession Rule 1960
Appendix 1 Form "K" sample part-8 column 3 that, from the very
next day the renewal is to be given on completion of the period of
original mining lease. Therefore, from dt. 28.5.1998 renewal has
been granted. However, as per the Rule 31 of Mineral Concession
Rule 1960, the period of the mining lease starts from the date of the
mining lease agreement is executed. As per the government order
dt. 13.2.2008, the permission for execution of the renewed mining
lease period is given till dt. 12.8.2008. Consequently, the next 10
years will be from the date of execution of the mining lease as per
rules."
Though the letter is undated (Petitioner No.1 contends the date to be
26th May 2008) it is the case of Petitioner No.1 that, the Government of
Maharashtra, vide the said letter clarified that the term of the lease would
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commence from the date of execution of the lease deed under Rule 31(2) of
the MC Rules, 1960. The letter being undated, we are not considering the
letter for the purposes of this petition.
3.13) On 25th September 2008, pursuant to and based on Forest
Clearance dated 1st/3rd October 2001 and after referring to the Order dated
13th February 2008, a Mining Lease Deed, was executed ("Renewed Mining
Lease Deed"), between Government of Maharashtra and Petitioner No. 1, for
an area of 102.97 hectares ("Renewed Mining Lease Area"). On 25 th
September 2008, a letter was issued by District Mining Officer, Collectorate
Kolhapur to Petitioner No.1, inter alia, informing Petitioner No.1 that, it
would have to obtain forest clearance under the Wildlife (Protection) Act,
1972. As per the Renewed Mining Lease Deed, the lease commences from 25 th
September 2008 for a period of 10 years.
3.14) On 30th March 2010, an application for extension of the FC
Approval in Form B under FC Rules, 2003. ("FC Approval Extension
Application") was filed by Petitioner No.1 for an area of 34.43 hectares out of
the area of 106.76 hectares, for a further period of 10 years from 3 rd October
2011. The said request for extension of the FC approval was well within time
and for a reduced area i.e 34.43 hectares out of the area of 106.76 hectares.
3.15) Despite pendency of the FC Approval Extension Application the
State Forest Department on 3 rd October 2011 took over possession of the
Renewed Mining Lease Area and the entire dead stock/Bauxite dump lying at
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the site. This was done without any notice or intimation to Petitioner No.1.
3.16) On 7th April 2012, Principal Chief Conservator of Forest
recommended to the Government of Maharashtra to refuse the request of
extension of permission granted earlier under the FC Approval as it would be
detrimental to the environment. The refusal was on the basis that to transport
the extracted minerals from the site it will require approximately 8000 trips of
the trucks, which will adversely affect the environment and that the removal
of the mineral dumps will disturb the soil which will in turn lead to soil
erosion.
3.17) On 11th June 2012, the Petitioner No.1 while referring to the
letter dated 17th April 2012 issued by the Government of Maharashtra,
submitted a revised application for extension of FC Approval for a reduced
area of 30.64 hectares (“Revised FC Approval Extension Application”).
3.18) On 9th October 2012, Government of Maharashtra after re-
evaluation rejected the request for extension of the permission for lifting and
transportation of the balanced mined material. On 28 th February 2013, the
National Green Tribunal (NGT) turned down the challenge mounted by the
Petitioner No.1 to the communication dated 9 th October 2012. The Order
passed by the NGT was challenged before the Hon'ble Supreme Court in Civil
Appeal No. 4068 of 2013. The Hon’ble Supreme Court, by Order dated 12 th
January 2015 was pleased to allow the Petitioner to withdraw the Civil Appeal
with liberty to approach the appropriate Court for appropriate reliefs.
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3.19) On 12th January 2015, The Mines and Minerals (Development &
Regulation) Amendment Act 2015, came into force. section 8A was inserted in
the Mines and Minerals (Development and Regulation) Act 1957 (MMDR
Act).
3.20) On 1st April 2015 directions were issued by Ministry of
Environment and Forests to Principal Secretary (Forests), inter alia clarifying
the effect of the Amendment Act, 2015, to state that, in respect of existing
mining leases in respect of minerals specified in sub-section (1) of section 8A
of the MMDR Act, 1957, as inserted by the Mines and Minerals (Development
and Regulation) Amendment Ordinance, 2015, the period of validity of
approvals accorded under Section 2 of the FC Act shall be extended, and shall
be deemed to have been extended upto a period co-terminus with the period
of mining lease in accordance with the provisions of the MMDR Act, 1957,
and to realise the NPV. It was specifically stated that, the
directions/clarification in the letter, notwithstanding anything contained
therein, shall not apply to forest land falling in a mining lease for which
renewal has been rejected, or which has been determined or lapsed before the
issue of this letter.
3.21) On 1st May 2015, further directions were issued by the Ministry of
Environment and Forests to Principal Secretary (Forests).
3.22) On 6th March 2016, site inspection of the Mining Lease Area
conducted by the Chief Conservator (Territorial) of Respondent No. 2. On 9 th
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March 2016, the Deputy Forest Conservator, Kolhapur Forest Department
recommended to the Chief Forest Conservator (Regional), inter alia for the
activation of mining in the Mining Lease Area.
3.23) On 22nd March 2016, a detailed Site Inspection Report was
submitted by the Chief Forest Conservator. On 22nd/23rd March 2016, letter
was issued by the Chief Forest Conservator (Regional) to the Additional Chief
Forest Conservator and Nodal Officer, inter alia, setting out the factual
background of the Petitioner No.1’s pending application for extension of FC
Approval.
3.24) By a letter dated 18 th May 2016, addressed by the Additional
Chief Forest Conservator and Nodal Officer to the Secretary (Forest), inter
alia, recommending that, approval be granted to Petitioner No.1’s proposal
subject to certain conditions specified therein. On 4 th July 2016, an application
was made by Petitioner No.1, inter alia, requesting for extension of the mining
lease up to 31st March 2030 under Section 8A(5) of the MMDR Amendment
Act, 2015.
3.25) On 17th January 2017, Respondent No.4 recommended to the
Principal Secretary, Industries, Energy and Labour Department, that the
extension as requested by the Petitioner No. 1 should not be granted as the
Petitioner No. 1 had stopped mining operations on 3 rd October 2011 without
prior permission of the State Government.
3.26) By a letter dated 7th February 2017, addressed by the Government
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of Maharashtra to the Ministry of Environment and Forests, inter alia,
recommended that the Petitioner No.1's proposal for extension of mining lease
on 106.76 hectares forest land till 24th September 2018.
3.27) On 23rd March 2017, the Petitioner No. 1 recorded its submissions
in support of its application for extension of the mining lease till 31 st March
2030. On 27th April 2017, a letter was addressed by Deputy Conservator of
Forest to Chief Conservator of Forests, inter alia, stating that the forest
clearance be extended upto a period co-terminus with the period of validity of
the Mining Lease. The letter also referred to the Mining Lease Area falling
within Eco sensitive area as per the MoEFCC directions of 13 th November
2013. It is stated that: -
"So, forest clearance of said mine may be extended beyond 02 nd
Oct 2011 as per above mentioned MoEF & CC letter upto a period
co-terminus with the period of validity of Mining Lease.
However, as the concerned mine are (Bhogoli & Umagaon
(Kasarsada) Tal. Chandgad) falls within eco sensitive area in
respect of direction of MoEF dated 13.11.2013, new and/or
expansion projects/activities related to mining projects are
prohibited from the date of directions issued in eco sensitive area.
As per draft notification released on 27th February 2017 earlier,
there shall be a complete ban on mining, quarrying in
Ecologically Sensitive Area and all existing mines shall be phased
out within five years from the date of issue of the final
notification or on the expiry of the existing mining lease,
whichever is earlier.
Thus, kindly take appropriate decision regarding mining
extension at your level."
3.28) On 27th April 2017 a letter was addressed by Chief Forest
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Conservator (Regional) to Additional Chief Forest Conservator and Nodal
Officer, inter alia, agreeing with the opinion of the Deputy Forest Conservator
in its letter of 27th April 2017, stated that: -
"Hence as per the guidelines of Environment Forest & Ministry of
Central Government for the project of Hindalco Industries Ltd
Kolhapur and as per amended Mines and Mineral (Development
and Regulation) Amendment Act 1957 Sub-Section (1) of section
8A (copy annexed) and as per the approval granted by Central Govt
to this project on 3/10/2001 to the said mining belt there is
provision of automatically granting extension of time till next time.
This office is agreeable with the opinion of Deputy Forest
Conservator, Kolhapur for their reference letter dated 27/4/2017 a
copy of which is annexed herewith."
3.29) On 13th June 2017, Respondent No.4 addressed a letter to the
Additional Chief Secretary (Industries), Industries Energy and Labour
Department, inter alia, setting out the submissions made by the Petitioner
No.1 vide its letter of 23 rd March 2017 for the consideration of the said
concerned official and stating that the Petitioner had requested for an oral
hearing as well
3.30) On 22nd June 2017 letter addressed by Chief Forest Conservator
to Secretary (Forests), inter alia, opining that extension of the FC Approval
should not be granted. The letter records that: -
“7. In view of the Government letter dated 14/3/2017 as per
the report submitted by Chief Forest Conservator Kolhapur vide
reference No. 5, the village in the proposal named Village- Bhogoli
and Umgaon, Taluka- Chandgad, Dist. Kolhapur are appearing
included in the report of Dr. Kasturirangan Committee. Similarly,
inclusion of these villages is also made in Draft Notification of the
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gazette dated 28/2/2017. However, in notification dated
28/2/2017 of Environment & Forest Ministry of Central Govt on
page 115 as per point No. 3(a) directives have been given as
mentioned below:
3(a) "There shall be a complete ban on mining quarrying and
sand mining in Ecologically Sensitive Area and all existing
mines shall be phased out within five years from the date of
issue of the final notification or on the expiry of the existing
mining lease, whichever is earlier"
8. M/s Hindalco Industries Ltd requested to lift the stock lying in
forest area which was denied by State Government vide letter
dated 9/10/2014.... Vide this office letter dated 18/5/2016 the
Project Machinery under Forest Conservation Act 1980 in view of
the transfer of 106.76 H forest land in 2001 now has asked for
extension of time for transfer of only 30.64 H forest land.
However, in this regard on 2/10/2011 the permission of Central
Government is over and as the lease of Project Machinery is going
to finish, hence it would not be proper to accept their demand"
3.31) On 23rd October 2017, a communication was addressed by
Ministry of Environment and Forest to the Principal Secretary (Forests),
observing that the proposal for renewal of FC Approval had not been made
prior to one year of its expiry and directing State Government to obtain
proposal from Petitioner No.1 in Form B and to forward the same along with
convincing justification for non-submission of the proposal for renewal in
time.
3.32) The Respondent No.4 by its Order dated 10 th November 2017,
inter alia, extending the mining lease under Section 8A(5)/(6) of the
Amendment Act, 2015. It records that
"...exercising the powers by the Sub-section (5)/ (6) of Section 8A
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of the Mines and Minerals (Development and Regulation)
Amendment Act-2015, the Director, Directorate of Geology and
Mining, Nagpur is pleased to issue the extension of Mining lease
to M/s Hindalco Industries Ltd, Century Bhavan, 3 rd Floor, Dr
Annie Beasant Road Worli, Mumbai 400-030 on behalf of the
State Government for further period from 21/05/2018 to
31/03/2030 for Bauxite mineral...."
3.33) Pursuant to the Order dated 10th March 2017 and 10th November
2017, a mining lease was executed on 5 th January 2018, by District Mining
Officer in favour of Petitioner No.1, under which, the mining lease was
granted to Petitioner No. 1 for the period from 21 st May 2018 till 31st March
2030 in terms of Section 8A of the MMDR Act.
3.34) On 20th February 2019 letter addressed by Government of
Maharashtra to Government of India forwarding a detailed report of the
Additional Chief Conservator of Forests and Nodal Officer dated 15 th February
2019. Relevant portion of the letter reads as under: -
“8. To summarize the matter-
8.1 Section 8A (5) of the MMDR Amendment Act 2015 is not
applicable in the present case as it is hit by sub-section (9) because
the mining lease relied upon by the User Agency stood lapsed on
21/05/2008 itself.
8.2 For the reason stated above, the guidelines dated 1/4/2015
relied upon by the User Agency are also not applicable.
8.3 Government of India may be requested to make available
the copy of its reply filed before Hon'ble High Court as Respondent
No.7 in Writ Petition No.4125/2015.
8.4 As the Forest Conservation clearance dated 3/10/2001
clearly states that about 80% of the area had already mined at that
point only, it would not be appropriate to consider the request of
the User Agency for allowing further mining.
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8.5 Taking into consideration the provision in Draft Eco-
Sensitive Area Notification, allowing any further mining will
amount to wanton destruction of fragile eco-system.
8.6 The State Government is under no legal compulsion to
divert forest land at the cost of damage to the forests and
environment.
8. 7 As an abundant precaution the concerned Authorities may
also be advised to review the order dated 10/11/2017 extending
the mining lease from 21/05/2018 to 31/03/2030.”
3.35) On 8th March 2019 the Petitioner No. 1, withdrew the Civil Writ
Petition bearing WP No. 4125 of 2015. On 27 th March 2019 Impugned Letter
issued by Ministry of Environment and Forests, inter alia, closing Petitioner
No.1’s proposal for extension of FC Approval.
3.36) On 9th April 2019, the Deputy Conservator of Forests, by a letter
addressed to the Petitioner No.1 directing to deposit NPV along with mining
lease renewal proposal. As the Petitioner No.1 proposal had already been
closed by MoEFCC and the land had been directed to be reclaimed, Petitioner
was unable to comply with the aforesaid directions.
3.37) Present petition was filed on 24th September 2019.
Submissions of the Petitioners
4) Mr Ashish Prasad, learned Advocate appearing for the Petitioners
submits that: -
4.1) Under the Mining Lease Agreement dated 21 st May 1968, the
Petitioner No.1 conducted mining operations until 2 nd October 2011. On 12th
May 1997 Petitioner No.1 applied for the First Renewal of the mining lease for
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an area of 207.20 hectares out of the 319.70 hectares under Rule 24A of the
MC Rules, 1960 within the stipulated time frame under the MMDR Act and
Rules i.e. one year before the expiry of the Mining lease. As the Petitioner
No .1 was using the minerals for its own industry (captive use), Petitioner
No.1, was entitled to renewal of mining lease under Rule 24B of the MC
Rules, 1960. Rule 24B of the MC Rules, 1960 provides that, every person who
is holding a mining lease for a mineral which is used in its own industry
(captive use) shall be entitled for the renewal of the mining lease for a period
not exceeding 20 years, unless applies for lesser period. That, under Rule 24B
of the MC Rules, 1960 Petitioner No. 1 was entitled to at least 20 years of
renewed mining lease from 22st May 1998 i.e. till 21st May 2018.
4.2) On 3rd October 2001, MoEFCC granted Forest Clearance for First
Renewal of mining lease for 10 years, i.e. till 2 nd October 2011. Upon grant of
Forest Clearance, the State Government ought to have executed the mining
lease within reasonable time. However, due to inaction on the part of the
State Government, Petitioner No.1’s application for First Renewal of mining
lease remained pending until 13 th February 2008, when the State Government
passed order granting such extension. The State Government executed the
mining lease only on 25th September 2008 i.e after further delay of 7 months.
That, though the Petitioner No. 1 had applied within time and as per the rules
on 12th May 1997, the State Government forwarded the said proposals to the
Central Government only on 23rd July 1999 and 11th October 1999. The said
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delay of more than 2 years was solely attributable to the State Government.
4.3) As the State Government failed to act, the mining lease was
deemed to have been extended under the erstwhile Rule 24A (6) of MC Rules,
1960. As the Petitioner No.1 was using the minerals for its own industry,
Petitioner No.1 was entitled under Rule 24B of the MC Rules, 1960 to mining
lease of 20 years. That, the words used in Rule 24B of the MC Rules, 1960 is
“shall be entitled for the renewal of his mining lease for a period not
exceeding twenty years”. The Rule 24B of the MC Rules, 1960 makes it clear
that, if minerals are used for own industry (captive use) the lease shall be
renewed for term not exceeding 20 years unless the lessee request for a lesser
period. Thus Petitioner No.1 was conducted mining operations with Forest
Clearance and deemed renewal of mining lease until 24 th September 2008 and
with Forest Clearance and executed mining lease from 25 th September 2008
till 2nd October 2011. On 3rd October 2011 the State Forest Department took
over possession of the mine alongwith the entire dead stock/Bauxite dump
lying therein due to lapse of the Forest Clearance. That, no notice was given to
the Petitioner No.1 as is required under the terms of lease deed or Rule 5, 6
and 7 of Form K, Schedule I of the MC Rules, 1960.
4.4) A renewed mining lease commences from the date of its
registration as per Rule 31(2) of MC Rules, 1960. That, Rule 31 (2) of MC
Rules, 1960 is applicable to renewal of mining lease. An application for
renewal of a lease is, in essence an application for the grant of a lease for a
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fresh period. Reliance was placed on the paragraph 12 of the Judgment in the
case of State of Tamil Nadu vs M/s Hind Stone & Ors, reported in (1981) 2
SCC 205.
4.5) A new mining lease, or a renewed mining lease, are both
executed under Rule 31 (1) in Form K of MC Rules, 1960. There is no separate
form for renewed mining lease. The mining lease executed on 25 th September
2008 in favour of Petitioner No.1 is in Form K and as per the "Model Form of
Mining Lease. The lease period commences from 25 th September 2008 and is
for 10 years. That, act of the State Government in accepting the dead rent
under lease deeds of 2008 and 2018, indicate and imply that the lease is valid
and subsisting. Respondent No. 4, the competent body for grant and renewal
of mining lease, has categorically stated in its affidavit that, the lease was
extended under a deemed extension from 1998 to 2008 and thereafter from
2008 to 2018 and 2018-2030 under law.
4.6) It cannot be said that the renewal of mining lease from 25 th
September 2008 till 24th September 2018 is bad in law in the absence of
Forest Clearance. The Petitioner No.1 has at all times been diligent in applying
for the permissions, prior approvals, renewals etc. Prior approval of Central
Government for the First Renewal was sought in time. The State Government
sought prior approval of Central Government under Section 2 of FC Act for
First Renewal of mining lease and the Central Government granted the
approval on 3rd October 2001 for a period of 10 years. The State Government
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in turn acted on the said prior approval by executing the Mining lease on 25 th
September 2008 for 10 years. The renewed mining lease was executed based
on and only after grant of Forest Clearance. That, the mining operations of
Petitioner No.1 for the period 21st May 2008 to 2nd October 2011 have not
been questioned or faulted till date. All mining activities are carried out
pursuant to valid and legally obtained mining permissions. Petitioner No.1 has
paid royalty to the State Government under the mining lease dated 25 th
September 2008. Admittedly all the mining operations of Bauxite have been
done for the purpose of captive use and before 2 nd October 2011. Thus, under
no circumstances can the present case be called or termed as a case of illegal
mining. The Petitioner No.1 duly applied for extension of the Forest Clearance
on 30th March 2010 i.e. one year before the expiry of its term. Such
application was closed by MoEFCC on 27 th March 2019 without providing any
reasons by way of the Impugned Communication and without considering the
factual aspects so also the reports dated 9 th March 2016, 22nd March 2016, 18th
May 2016, 7th February 2017 and 23rd October 2017.
4.7) Based on the Order dated 10th November 2017 of the Government
of Maharashtra, Directorate of Geology and Mining, the Mining Lease was
validly renewed for a further term from 21 st May 2018 till 31st March 2030.
This was under Section 8A(5) of the MMDR Amendment Act, 2015. The Order
dated 10th November 2017 is not challenged nor withdrawn. The same has
been acted upon by the Government by execution of a fresh lease deed dated
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5th January 2018. Petitioner No.1 has deposited dead rent under Section 9A of
the MMDR Act, 1957 which has been accepted by the State Government
without demur.
4.8) MoEFCC issued directions mandating automatic extension of
forest clearance co-terminus with the mining lease. On 1 st April 2015,
pursuant to the MMDR Amendment Act, 2015, MoEFCC issued directions to
the Principal Secretary, Forests (and his counterparts in all other states and
UTs).
4.9) On 1st May 2015, MoEFCC issued further directions elaborating
on the 1 April 2015 directions.
4.10) The directions contained in the aforesaid letters make it clear
that, where forest clearance had already been obtained during the original
mining lease period, pending proposals for the prior approval of the Central
Government for renewal of the mining lease under the FC Act were not
required to be processed further and were accordingly closed. The forest
clearance was deemed to have been automatically extended in light of the
directions issued on 1st April 2015. As per the MoEFCC’s own directions, forest
clearances relating to mining leases covered by Section 8A of the MMDR Act
were deemed to be automatically extended for a period coterminous with the
mining lease. The directions issued by the MoEFCC have the force of law and
are binding not only upon the MoEFCC but also upon all concerned
authorities. Accordingly, in the case of Petitioner No. 1, the forest clearance
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stood automatically extended until the year 2030.
4.11) The State Forest Department has given recommendations in
favour of the extension of validity of the Petitioner No.1’s Forest Clearance.
Four favorable recommendations, made by the State Forest Department for
extension of validity of Petitioner No1's forest clearance, are as under: -
(i) Recommendation dated 9th March 2016 made by the Deputy Forest
Conservator, recommended activation of the project.
(ii) Recommendation dated 22nd March 2016 made by the Chief
Conservator of Forest, to resume mining operations. This was based on
to a site visit.
(iii) Recommendation vide a detailed report dated 18 th May 2016 by the
Principal Chief Conservator of Forest to the Secretary (Forest) State
Govt of Maharashtra recommending that, approval should be granted to
Petitioner upon condition for payment of NPV.
(iv) Recommendation dated 7th February 2017 by the Principal
Secretary (Forests) Government of Maharashtra recommending to
Respondent No.1 that, the forest clearance be extended. This
recommendation was made based on the recommendation of the Law &
Judiciary Department, Government of Maharashtra.
4.12) On 23rd October 2017, acting on the recommendation dated 7 th
February 2017 of the Principal Secretary (Forests), MoEFCC directed that
Form ‘B’ for renewal of forest clearance be filed again and sought justification
from State Government as to why it had not realized NPV in compliance of
directions dated 1st April 2015. The Petitioner No.1 was at all times ready to
pay the NPV.
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4.13) On 27th March 2019 MoFFCC rejected the proposal for extension
of forest clearance of Petitioner No.1 and directed that the mined-out forest
land be reclaimed, which is contrary to the MoEFCC's own directions dated 1 st
April 2015 and 1st May 2015 and was passed despite favourable
recommendations of the State Government. Most pertinent, that the
communication does not disclose any reasons or basis for closing Petitioner
No.1’s proposal.
4.14) The Impugned Communication dated 27th March 2019 is arbitrary
as Petitioner No.1's Forest Clearance dated 3 rd October 2001 stood
automatically extended and became co-terminus with the mining lease in
accordance with MoEFCC's directions dated 1 st April 2015 and 1st May 2015
and its application dated 30 th March 2010 for extension of original Forest
Clearance dated 3rd October 2001 stood closed.
4.15) The directions issued by MoEFCC have the force of law as long as
they confirm to the requirements of Article 77(2) of the Constitution of India
and are published in the mode prescribed by the statute. Reliance was placed
on the Judgment of the Hon’ble Supreme Court in the case of Gulf Goan
Hotels Co. Ltd. v. Union of India, reported in (2014) 10 SCC 673.
4.16) The State Government has not issued a demand note in terms of
Rule 8 (1)(b) of the Forest (Conservation) Rules, 2003 for deposit of NPV. The
1st April 2015 direction issued by the MoEFCC made the forest clearance
extension co-terminus with the mining lease subject to the realization of NPV
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by the State Government.
4.17) As per Rule 8(1)(b) of the Forest (Conservation) Rules 2003, the
Divisional Forest Officer is required to prepare a demand note for the NPV to
be paid by the User Agency and communicate the same to the User Agency.
The State Government has not raised any such demand note till date.
Petitioner No.1 at all times being ready and willing to pay the NPV has
repeatedly written to the MoEFCC requesting for realization of NPV.
Curiously, on 9th April 2019, immediately after rejection of the proposal, the
Chief Conservator, Forests directed the Petitioner No.1 to deposit NPV in
compliance of MoEFCC's direction dated 1 st April 2015. This demand, is
without any quantification nor is the amount mentioned.
4.18) The Respondents' contention that, Petitioner No.1’s mining lease
lapsed on 21st May 2008 is misplaced and misconceived. The same proceeds
on the basis of a purported letter of Government of Maharashtra dated 20 th
February 2019 and views of the Chief Conservator, Forests. The entire basis of
the MoEFCC's stand is that, the Petitioner No.1's mining lease lapsed in 2008
as intimated to it by the letter dated 20 th February 2019 addressed by the
Additional Principal Chief Conservator of Forests, Government of
Maharashtra. This letter was attached to a report dated 15 th February 2019 by
the Additional Principal Chief Conservator of Forests, Government of
Maharashtra. The MoEFCC proceeds on the patently misconceived basis that,
in view of this letter, the lease had lapsed in 2008. This foundational basis for
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the MoEFCC's Impugned Communication is misconceived and non-existent for
the following reasons;
i) The Government of Maharashtra had passed an order dated 10 th
November 2017 extending Hindalco's mining lease from 21 st May 2018
to 31st March 2030.
ii) The Order dated 10th November 2017 gives the benefit of section
8(A)(5) and 8(A)(6) of the MMDR Amendment Act, 2015 to the
Petitioner No.1. The extension order has been acted upon by
Government of Maharashtra by execution of the lease deed dated 5 th
January 2018.
iii) Pertinently, the affidavit filed on behalf of the Principal Secretary,
Industries and Mines specifically states that the Petitioner No.1 is the
holder of a valid mining lease that was originally granted in 1968 that
continues to stand extended until 31st March 2030.
Submissions of the Respondents
5) Mr Vijay Killedar, learned Advocate appearing for the Respondent
No. 1 submitted that: -
5.1) The moot question which is required to be considered and
answered is whether the renewal of mining lease could take effect from any
later date other than the day immediately after expiry of original lease? The
Original lease deed was for a period of 30 years from 21 st May 1968 to 22nd
May 1998. That, the Industries, Energy and Labour Department had passed an
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order dated 13th February 2008 under Section 8 of the MMDR Act, the lease
was directed to be extended for a period of 10 years from 22 nd May 1998.
Thus, as per this order, the lease was valid upto 21st May 2008.
5.2) The lease deed dated 25th September 2008 executed between the
Petitioner No. 1 and State of Maharashtra, for a period of 10 years from the
date of its execution, is de hors of the earlier order dated 13 th February 2008
which directs that the lease can be extended for a period of 10 years from the
date immediately after the day on which the original lease expired i.e. 22 nd
May 1998. That, the lease deed dated 25 th September 2008, is not in
accordance with Rule 24B of the MC Rules, 1960 and Clauses 4.16 and 4.17 of
the Guidelines annexed to the FC Act. Moreover, it is trite that a lease cannot
be renewed at a later date, when it has already expired and determined by
efflux of time.
5.3) As per the Order dated 13th February 2008, the proposal for
renewal of lease was allowed for a period of 10 years from 22 nd May 1998.
Therefore, the actual renewal of lease deed document could not have been
executed for 10 years from the date of execution of the said document, which
has thus rendered the renewed document as null and void. The mining lease,
thus, expired on 22nd May 1998.
5.4) Section 111 (a) of the Transfer of Property Act, 1882, (For Short
‘TPA’) provides for determination of lease by efflux of the time. There is
nothing in MMDR Act or FC Act to exclude the application of Transfer of
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Property Act, 1882. Section 111 (a) of the TPA in clear terms provides for
determination of lease on expiry of the period fixed. The above facts would
reveal that the agreed period of lease was initially for 30 years i.e. upto 22 nd
May 1998 and the renewal was extended upto 21 nd May 2008. Thus, on 21nd
May 2008, the lease determined as per Section 111 (a) of the TPA.
5.5) It is a matter of record that by order dated 13 th February 2008,
the period of lease was renewed for 10 years, which was to take effect from
22nd May 1998. Under the clauses 4.16 and 4.17 of the Guidelines appended
to FC Act, it is provided that the application seeking renewal of lease should
be filed one year prior to expiry of the original lease and in the event, the
State is not able to process the renewal application within one year, it may
grant one year temporary working permission and then finally decide the
renewal application. The renewal if granted, would take effect from the day
immediately after the original lease had expired. In terms of this provision,
the order dated 13th February 2008 provides for extension of lease w.e.f. 22 nd
May 1998. In the present case, the renewal of lease is governed by provisions
of Rule 24B of the MC Rules, 1960 as the Petitioner No. 1 are intending to
carry out mining activities for their own industry (Captive Mining).
5.6) Despite the order dated 13th February 2008 having been passed,
the same officer issued a communication dated 26 th May 2008 in which it
stated that even though earlier it is provided that the renewal shall be with
effect from the day immediately after expiry of the original lease, as per Rule
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31 of the said Concession Rules, the period of lease would start from the day
on which mining lease agreement is executed.
5.7) From bare perusal of Rule 31 it would be clear that the same is
not applicable to renewal of leases. Rule 31 (2) only deals with mining lease
which is executed for the first time. Thus, it was error on the part of the said
department of the State to have issued such communication recommending
erroneous interpretation of the provisions, which would amount to reviewing
its own order dated 13th February 2008, such power is not vested in it by any
statute.
5.8) The Petitioner No. 1 have annexed the copy of order dated 10 th
November 2017 passed by Dy. G & M, Government of Maharashtra vide
which, in purported exercise of powers under Section 8A of the MMDR Act
the lease has been extended from 21st May 2018 to 31st March 2030. Firstly,
this period is fixed on the erroneous footing that the lease deed was valid till
21st May 2018, when in fact, the lease had already determined on 22 nd May
1998. That, the Order is passed without there being any prior approval under
Section 2 of FC Act.
5.9) The permission under Section 2 of FC Act was in effect till 10 th
November 2010. In this regard, the Hon'ble Supreme Court has held in the
case of T. N. Godavarman Thirumulkpad v/s. Union of India, reported in
(1997) 2 SCC 267 that a prior approval of the Central Government under
Section 2 of FC Act is a must before any non-forest activity is to be conducted
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by any user agency. It is further held that mining of any minerals are non-
forest purposes and the pre-condition of approval under Section 2 would have
to be met.
5.10) The Hon'ble Supreme Court in the case of State of M. P. and
others v/s. Krishnadas Tikaram, reported in 1995 Supp (1) SCC 587 , has held
that there can be no renewal of lease by the State Government unless prior
approval is obtained from the Central Government under Section 2 of the FC
Act.
5.11) By virtue of amending Act, Section 8A was introduced in the
statute book of MMDR Act,1957 w.e.f. 12th January 2015. By Section 8A(5), it
is provided that the period of lease for minerals used for captive purposes
shall be deemed to have been extended upto 31 st March 2030. As per the
directions issued by the Ministry of Environment and Forests to Principal
Secretary (Forests) on 1st April 2015, it is sought to be contended by the
Petitioner that period of validity of approvals of FC Act under Section 2 would
be deemed to have been extended upto the period co-terminus with that of
the mining lease.
5.12) Section 8A(9) of the MMDR Act provides that nothing in Section
8A would apply to mining lease granted before the date of commencement of
2015 amending act, for which renewal has been rejected, or which has been
determined, or lapsed. From the above it is clear that the mining lease had
determined on 22nd May 1998. The forest clearance under Section 2 of FC Act
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was valid till 9th November 2010. Thus, as per Section 8A (9) of the MMDR
Act, the mining lease had determined and even the Section 2 permission had
lapsed, and therefore, the deeming fiction created by the said provision will
not be applicable to the present matter.
5.13) The Hon'ble Supreme Court in the case of Muneer Enterprises
v/s. Ramgad Minerals & Mining Ltd., reported in (2015) 5 SCC 366, has held
that for a mining lease to be remain valid, twin requirements of the approval
of Central Government under proviso to Section 5 (1) of MMDR Act and
Section 2 of FC Act. have to be fulfilled. It is further held that the lessee
cannot be permitted to seek such approvals after expiry of the lease.
5.14) According to the Petitioner No. 1, the impugned order is in the
nature of an order passed under Section 2 of the Forest (Conservation) Act,
1980. The Petitioner No. 1 have referred to orders dated 1 st April 2015 and 1st
May 2015 and submitted that, the extension of permission under Section 2 of
FC Act. was approved, and the application seeking extension of prior approval
under Section 2 FC Act was closed. Since the proposal seeking extension of
validity of forest (conservation) clearance under Section 2 of the FC Act has
been closed, the order can be stated to have been passed under Section 2 of
the FC Act.
5.15) On the above basis, the provisions of the National Green Tribunal
Act, 2010 (NGTA) are required to be considered. Chapter III of the NGTA sets
out jurisdiction, powers and proceedings of the NGT. Under Section 14 of the
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NGTA if twin requirements namely, substantial question relating to
environment being involved and implementation of enactments specified in
Schedule I appended to the NGTA, are met, the NGT has the jurisdiction to
decide all such civil cases.
5.16) In the present case, the Petitioner No. 1' alleged right to be
granted extension of forest clearance has been pitted against the Respondent
No. 1's contention that such clearance cannot be granted for multiple reasons
such as expiry of the lease, non-application of the amended provisions of
Section 8A of the MMDR Act, etc. Therefore the dispute is a 'civil dispute'
within the meaning of Section 14 of the NGTA and in view of the fact that
Forest (Conservation) Act, 1980 is enlisted in Schedule I of the NGTA, the
NGT would have exclusive jurisdiction to entertain the challenge made by the
Petitioner No. 1.
5.17) Apart from Section 14, the present case stands covered by Section
16 of the NGTA, thereby vesting exclusive jurisdiction to entertain Petitioner
No. 1 plea with the NGT. Under Section 16 (e) of the NGTA, any person
aggrieved by a decision or order made by the State Government under Section
2 of the FC Act, 1980 can prefer an appeal against such decision or order to
the NGT. From the above discussion, it is an admitted position that the
impugned order has been passed under Section 2 of the FC Act, 1980.
5.18) This Court had an occasion to decide the issue as to
entertainability of a writ petition under Article 226 of the Constitution of
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India, 1950 despite having a remedy under Section 16 of the NGTA in the case
of South West Port Ltd. v/s. State of Goa, reported in 2018 (4) Mh.L.J. 678. In
the said case, a challenge was made to the denial by MoEFCC of the
Petitioner's application seeking terminal capacity enhancement at Mormugao
Port Trust, Vasco-da-gama. In this regard, this Court had refused to entertain
the petition by relegating the petitioner to agitate his claim before the NGT.
5.19) The NGTA provides for complete mechanism for redressal of
grievances relating to the subject matter of dispute permissible to be
adjudicated by the NGTA. Wide powers are vested in NGT to ensure that the
disputes are properly adjudicated, there is no reason why the present
Petitioner No. 1 should not be directed to approach the NGT by dismissing the
present petition as not maintainable.
5.20) The ground about maintainability of the petition has been taken
by the Assistant Conservator of Forest Division, Kolhapur in Affidavit-in- reply
dated 21st November 2019 in paragraph nos. 80, 81 and 87.
5.21) For the aforesaid reasons, the petition is not maintainable as the
impugned order is amenable to be challenged under Section 16 of the NGTA
or a dispute can be filed under Section 14 of the NGTA before the NGT.
6) Ms. Tejas Kapre, learned AGP appearing for the Respondent-State
adopted the arguments advanced by Mr. Killedar on behalf of the Respondent
No. 1. The learned AGP would further submits that, to transport the mined
out Bauxite dump, it would require approximately 8,000 truck trips. That, the
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same would have an adverse impact on the environment. That, in any event
now the mined out material belonged to the Government and the Government
would be entitled to auction the same.
Submissions in Rejoinder
7) Mr. Ashish Prasad, learned Advocate appearing for the Petitioner
No. 1 in rejoinder submitted that:-
7.1) The Respondent No. 1 though has argued that this Hon'ble Court
lacks jurisdiction to entertain this petition in view of section 14 and 16 of
National Green Tribunal Act, 2010 no such objection was raised in the reply
filed by Respondent No. 1.
7.2) The Communication dated 27th March 2019 contains no reasons
and is as such a non-speaking order. No reason is given for closing the
Petitioner No.1's application dated 30th March 2010 for extension of Forest
Clearance. This is after 9 years, despite the favorable recommendations made
by the State Forest Department and in complete disregard of the MoEFCC's
own Notifications dated 1st April 2015 and 1st May 2015.
7.3) 5 years after filing the writ petition, MoEFCC/Respondent No. 1
filed its reply for the first time wherein it produced letter dated 20 th February
2019 of the State Government relying on which it had issued the Impugned
Communication. MoEFCC/Respondent No. 1's submissions at para 8 of its
Reply are summarized below:
(1) As per letter dated 20.02.2019 of the State Government S. 8A(5) of
the MMDR Act was not applicable in the present case as it was hit by S.
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8A(9) of the MMDR Act, the mining lease having lapsed on 21.02.2008.
(2) MOEFCC guidelines dated 01.04.2015 are applicable only in case of
existing mining leases.
The letter dated 20th February 2019 does not taken into consideration
Rule 24B of the MC Rules, 1960 nor the notifications dated 1 st April 2015 and
1st May 2015.
7.4) The powers of the NGT, under the Act, 2010 are pertaining to
matters relating to environment only. The NGT lacks the power to determine
issues of grant, execution and validity of mining leases under the MMDR Act.
The issues raised in the present writ petition are within the exclusive
jurisdiction of this Hon'ble Court.
7.5) The case of Shri. Gangadhar Narsingdas Agrawal v. MoEF & Ors,
(2013) SCC OnLine Bom 683 , was a matter involving a challenge to an order
for closure of mine issued under Section 5 of the Environment (Protection)
Act, 1986 and an Office Memorandum issued by the Ministry of Environment
and Forest. In the said case this Court applied the principles in Whirlpool
(supra) and entertained a Writ Petition against an order that was passed in
violation of the principles of natural justice. This Court did not relegate the
parties to the alternative remedy available, as it considered the case to be a fit
one for the exercise of its extraordinary jurisdiction. The impugned Order
dated 27th March 2019 herein passed in violation of the principles of natural
justice and contains no reasons.
7.6) The writ petition is not barred by the principle of res-judicata on
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the ground that, the Petitioner No.1 had approached NGT in 2012 vide
Appeal No. 64 of 2012 against order dated 9 th October 2012 of the State
Government rejecting its application for lifting the legally extracted mineral/
Bauxite lying at the site (Bauxite dump) and NGT had disposed of said appeal
vide order dated 28th February 2013 decline to interfere. The issues involved
in the present writ petition were not directly and substantially in issue before
the NGT. The issues involved in the present writ petition are separate and
distinct. Petitioner No.1 is aggrieved by the closure of its application dated
30th March 2010 for extension of forest clearance by non speaking order dated
27th March 2019 of MoEFCC despite the following events that transpired after
the NGT order dated 28th February 2013 :
(i) Section 8A was inserted in the MMDR Act on 12.01.2015
granting deemed renewal of captive mining leases till
31.03.2030.
(ii) MOEFCC guidelines dated 1.04.2015 and 1.05.2015 directing
that forest clearances would be deemed to run coterminous with
tenure of extended mining lease post such amendment.
(iii) Closure of Petitioner No.1’s application dated 30.03.2010 for
extension of forest clearance by non-speaking order dated
27.03.2019 by MOEFCC despite the above change in law.
7.7) In any case, rather than exercising jurisdiction, NGT in its Order
dated 28th February 2013 declined to interfere holding as follows:
"In other words, what the Appellant seeks, by way of relief, is
direction to the Respondent 1 to forward the recommendation to
the Central Government for consideration and approval. If such
relief is considered, this Tribunal would substitute the
discretionary and recommendatory powers of the Respondent No.
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1, i.e. the State Government as desired by the Appellant. That
kind of substitution is outside the scope of the appellate
jurisdiction available to this Tribunal under Section 16 of the
National Green Tribunal Act, 2010. We make it explicit that the
appellate jurisdiction of this Tribunal is circumscribed by Section
16 of the NGT Act, 2010."
(Emphasis added)
7.8) The Respondents’ made a reference to Eco-Sensitive Zone and
Eco-Sensitive Area in relation to the mining lease in question and argued that
the mining lease falls in the said Eco-sensitive zone/area. It is submitted that
the Kasarsada mining lease is 31 km (aerial distance) from the boundary of
the Radhanagari Wildlife sanctuary. As such, the mining lease does not fall
within any Eco-Sensitive Zone, which is defined as an area extending up to a
maximum distance of 10 km from the boundary of a wildlife sanctuary.
However, certain villages included within the Kasarsada mining lease fall
within the area covered by the Draft Notification dated 31 st July 2024
proposing the declaration of an Eco-Sensitive Area. The said notification is
presently in draft form and is yet to be finalized. In any case, Para 3 of the
draft notification states that existing mines would be phased out in 5 years
after final publication of notification.
7.9) The Respondents has for the first time during arguments on 1 st
April 2026 produced notification dated 15 th March 2021 declaring Chandgad
Conservation Reserve which covers the areas falling in the mining lease in
question. The notification does not restrict any activity within such
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Conservation Reserve. MoEFCC is empowered to impose specific conditions
upon Petitioner No. 1 as it deems fit and proper. Without prejudice, so far as
the area covered under the mining lease in question is considered, the Site
Inspection Report of the Chief Conservator of Forest, Kolhapur dated 22 nd
March 2016 is required to be considered.
7.10) This is not a fresh mine but an established mine where necessary
infrastructure including tar roads have been in existence since 1970 when
mining operation commenced. There is no fresh diversion of forest land which
is being sought for mining or for road construction. The mining lease area is
already bereft of vegetation as evidence by Site Inspection report and Google
Earth images. Well constructed roads are in existence. There is no damage to
flora or fauna is involved. If the Petitioner No. 1 is permitted to continue its
legitimate mining activities and thereafter close the mine in accordance with
the approved mine closure plan, the mined-out area can be restored and
developed into an ecologically sustainable area, thereby facilitating the
growth of flora and fauna. On the contrary, if the said area is allowed to
remain in its present state, the growth of flora and fauna would not be
possible over the mineral deposits.
Provisions of the law
8) Provisions of law relevant to the present matter are as under:-
8.1) On 12th January 2015. Section 8A was inserted into the Mines
and Minerals (Development and Regulation) Act, 1957 (MMDR Act) by way
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of the Mines and Minerals (Development and Regulation) Amendment Act,
2015 ('MMDR Amendment Act, 2015) which reads as under:
“[8A. Period of grant of a mining lease for minerals other than coal,
lignite and atomic minerals -
(1) The provisions of this section shall apply to minerals specified in
Part A of the First Schedule.
(2) On and from the date of the commencement of the Mines and
Minerals (Development and Regulation) Amendment Act, 2015 (10 of
2015), all mining leases shall be granted for the period of fifty years.
(3) All mining leases granted before the commencement of the Mines
and Minerals (Development and Regulation) Amendment Act, 2015 (10
of 2015) shall be deemed to have been granted for a period of fifty
years.
(4) On the expiry of the lease period, the lease shall be put up for
auction as per the procedure specified in this Act.
(5) Notwithstanding anything contained in sub-sections (2), (3) and
sub-section (4), the period of lease granted before the date of
commencement of the Mines and Minerals (Development and
Regulation) Amendment Act, 2015 (10 of 2015), where mineral is used
for captive purpose, shall be extended and be deemed to have been
extended up to a period ending on the 31st March, 2030 with effect
from 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.
(6) Notwithstanding anything contained in sub-sections (2), (3) and
sub-section (4), the period of lease granted before the date of
commencement of the Mines and Minerals (Development and
Regulation) Amendment Act, 2015 (10 of 2015), where mineral is used
for captive purpose, shall be extended and be deemed to have been
extended up to a period ending on the 31 st March, 2030 with effect
from 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.
(7) Any holder of a lease granted, where mineral is used for captive
purpose, shall have the right of first refusal at the time of auction held
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for such lease after the expiry of lease period.
(8) Notwithstanding anything contained in this section, the period of
mining leases, including existing mining leases, of Government
companies or corporations shall be such as may be prescribed by the
Central Government.
(9) The provisions of this section, notwithstanding anything
contained therein, shall not apply to a mining lease granted before the
date of commencement of the Mines and Minerals (Development and
Regulation) Amendment Act, 2015 (10 of 2025), for which renewal has
been rejected, or which has been determined, or lapse.]”
8.2) Section 8A(5) of the MMDR Act 1957 was amended on 12 th
January 2015, the Section 8 before the amendment reads as Under:-
“Periods for which mining leases may be granted or renewed.
8. (1) The maximum period for which a mining lease may be granted
shall not exceed thirty years:
Provided that the minimum period for which any such mining lease
may be granted shall not be less than twenty years.
(2) A mining lease may be renewed for a period not exceeding
twenty years. 4 [ Omitted ].
5
[(3) Notwithstanding anything contained in sub-section (2), if the
State Government is of opinion that in the interests of mineral
development it is necessary so to do, it may, for reasons to be recorded,
authorise the renewal of a mining lease in respect of minerals not
specified in Part A and Part B of the First Schedule for a further period
or periods not exceeding twenty years in each case.
(4) Notwithstanding, anything contained in sub-section (2) and sub-
section (3), no mining lease granted in respect of mineral specified in
Part A or Part B of the First Schedule shall be renewed except with the
previous approval of the Central Government.]”
8.3) Rules 24A, 24B, 31 and Form ‘K’ of Mineral Concession Rules,
1960 read as under:-
i) 24A. Renewal of mining lease: -
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(1) An application for the renewal of a mining lease shall be
made to the State Government in Form J, at least twelve months
before the date on which the lease is due to expire, through such
officer or authority as the State Government may specify in this
behalf.
1
[(2) The renewal or renewals of a mining lease granted in
respect of a mineral specified in Part ‘A’ and Part ‘B’ of the First
Schedule to the Act may be granted by the State Government
with the previous approval of the Central Government.]
2
[(3) The renewal or renewals of a mining lease granted in
respect of a mineral not specified in Part ‘A’ and Part ‘B’ of the
First Schedule to the Act may be granted by the State
Government.]
3
[Provided that before granting approval for second or
subsequent renewal of a mining lease, the State Government
shall seek a report from the Controller General, Indian Bureau of
Mines, as to whether it would be in the interest of mineral
development to grant the renewal of the mining lease.
Provided further that in case a report is not received from
Controller General, Indian Bureau of Mines in a period of three
months of receipt of the communication from the State
Government, it would be deemed that the Indian Bureau of
Mines has no adverse comments to offer regarding the grant of
the renewal of mining lease.]
(4) Omitted.
(5) Omitted.
(6) If an application for renewal of a mining lease made within
the time referred to in sub-rule (1) is not disposed of by the State
Government before the date of expiry of the lease, the period of
that lease shall be deemed to have been extended by a further
period till the State Government passes order thereon.
1
[(7) Omitted.]
(8) Notwithstanding anything contained in sub-rule (1) and sub-
rule (6) an application for the first renewal of a mining lease, so
declared under the provisions of section 4 of the Goa, Daman
and Diu Mining Concessions (Abolition and Declaration as
Mining Leases) Act, 1987, shall be made to the State Government
in Form J before the expiry of the period of mining lease in
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terms of sub-section (1) of section 5 of the said Act, through
such office or authority as the State Government may specify in
this behalf :
Provided that the State Government may, for reasons to be
recorded in writing and subject to such conditions as it may
think fit, allow extension of time for making of such application
up to a total period not exceeding one year.
(9) If an application for first renewal made within the time
referred to in sub-rule (8) or within the time allowed by the State
Government under the proviso to sub-rule (8), the period of that
lease shall be deemed to have been extended by a further period
till the State Government passes orders thereon.
2
[(10) The State Government may condone delay in an
application for renewal of mining lease made after the time limit
prescribed in sub-rule (1) provided the application has been
made before the expiry of the lease.]”
ii) Rule 24B
"24B. Renewal of a mining lease in favour of a person using the
mineral in his own industry: - Every person who is holding a
mining lease for a mineral which is used in his own industry shall
be entitled for the renewal of his mining lease for a period not
exceeding twenty years unless he applies for a lesser period."
Explanation:- “Own Industry” means an industry of which the
lessee is the owner or in which he holds not less than fifty percent
of controlling interest.
iiii) Rule 31. Lease to be executed within six months: -
“(1) Where, on an application for the grant of a mining lease, an
order has been made for the grant of such lease,a lease deed in
Form K or in a form as near thereto as circumstances of each case
may require, shall be executed within six months of the order or
within such further period as the State Government may allow in
this behalf, and if no such lease deed is executed within the said
period due to any default on the part of the applicant, the State
Government may revoke the order granting the lease and in that
event the application fee shall be forfeited to the State
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Government.
[(2) The date of the commencement of the period for which a
mining lease is granted shall be the date on which a duly
executed deed under sub-rule (1) is registered.]”
iv) Part XI-General Provisions, Form K, Mineral Concession
Rules, 1960.
“Lessee/lessees to remove his/their properties on the expiry of
lease: -
5. The lessee/lessees having first paid discharged rents, rates and
royalties payable by virtue of these presents may at the expiration
or sooner determination of the said term or within six calendar
months thereafter (unless the lease shall be determined under
clauses 1 and 2 of this Part and in that case at any time not less
than three calendar months nor more than six calendar months
after such determination) take down and remove for his/their
own benefit all or any 1 [ore mineral excavated during the
currency of lease] engines, machinery, plant, buildings structures,
tramways, railways and other works, erections and conveniences
which may have been erected, set up or placed by the
lessee/lessees in or upon the said lands and which the
lessee/lessees is/are not bound to deliver to the State Government
under clause 20 of Part VII of this Schedule and which the State
Government shall not desire to purchase.
Forfeiture of property left more than six months after
determination of lease: -
6. If at the end of six calendar months after the expiration or
sooner determination of the said term under the provision
contained in clause 4 of Part VIII of this Schedule become effective
there shall remain in or upon the said land any 2 [ore or mineral]
engines, machinery, plant, buildings structures, tramways,
railways and other work, erections and conveniences or other
property which are not required by the lessee/lessees in
connection with operations in any other lands hold by him/them
under prospecting licence or mining lease the same shall if not
removed by the lessee/lessees within one calendar month after
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notice in writing requiring their removal has been given to
lessee/lessees by the State Government be deemed to become the
property of the State Government and may be sold or disposed of
in such manner as the State Government shall deem fit without
liability to pay any compensation or to account to the
lessee/lessees in respect thereof.
Notices: -
7. Every notice by these presents required to be given to the
lessee/lessees shall be given in writing to such person resident on
the said lands as the lessee/lessees may appoint for the purpose of
receiving such notices and if there shall have been no such
appointment then every such notice shall be sent to the
lessee/lessees by registered post addressed to the lessee/lessees at
the address recorded in this lease or at such other address in India
as the lessee/lessees may from time to time in writing to the State
Government designate for the receipt of notices and every such
service shall be deemed to be proper and valid service upon the
lessee/lessees and shall not be questioned or challenged by
him/them.”
8.4) Section 2 of the forest (conservation) act, 1980 read as under:-
“2. Restriction on the dereservation of forests or use of forest land for
non-forest purpose.— Notwithstanding anything contained in any other
law for the time being in force in a State, no State Govemnment or
other authority shall make, except with the prior approval of the Central
Government, any order directing— (i) that any reserved forest (within
the meaning of the expression “reserved forest” in any law for the time
being in force in that State) or any portion thereof, shall cease to be
reserved: (ii) that any forest land or any portion thereof may be used
for any non-forest purpose. Explanation. —For the purposes of this
section “non-forest purpose” means the breaking up or clearing of any
forest land or portion thereof for any purpose other than
reafforestation.”
8.5) Clauses 4.16 and 4.17 of the Guidelines annexed to the FC Act
read as under: -
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"4.16(ii) The conditions stipulated while giving approval under the
Forest (Conservation) Act, 1980 for diversion/renewal of forest land for
mining purposes shall be renewed/monitored every five years. If it is
found that the lessee has violated or is not complying with the
stipulated conditions, then the approval given under the Forest
(Conservation) Act, 1980 shall be revoked...."
"4.17 If an application for renewal of mining lease, complete in all
respects, has been submitted by the user agency, to the State
Government one year before the expiry of the existing lease period, but
the State Government has not been able to process and forward the
proposal for approval of the Central Government, till the date of the
expiry of existing lease period; in such cases, the Central Government
on an application from the user agency, may grant the user agency,
temporary working permission in the already broken up area till a final
decision is taken on the proposal."
9) Authorities relied upon by the Petitioner No. 1.
9.1) The Hon'ble Supreme Court in the case of Whirlpool Corpn. v.
Registrar of Trade Marks, reported in (1998) 8 SCC 1 held observed that: -
"15. Under Article 226 of the Constitution, the High Court, having
regard to the facts of the case, has a discretion to entertain or not to
entertain a writ petition. But the High Court has imposed upon itself
certain restrictions one of which is that if an effective and efficacious
remedy is available, the High Court would not normally exercise its
jurisdiction. But the alternative remedy has been consistently held by
this Court not to operate as a bar in at least three contingencies, namely,
where the writ petition has been filed for the enforcement of any of the
Fundamental Rights or where there has been a violation of the principle
of natural justice or where the order or proceedings are wholly without
jurisdiction or the vires of an Act is challenged. There is a plethora of
case-law on this point...
16. Rashid Ahmed v. Municipal Board, Kairana [AIR 1950 SC 163 :
1950 SCR 566] laid down that existence of an adequate legal remedy
was a factor to be taken into consideration in the matter of granting
writs. This was followed by another Rashid case, namely, K.S. Rashid &
Son v. Income Tax Investigation Commission [AIR 1954 SC 207: (1954)
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25 ITR 167] which reiterated the above proposition and held that where
alternative remedy existed, it would be a sound exercise of discretion to
refuse to interfere in a petition under Article 226. This proposition was,
however, qualified by the significant words, "unless there are good
grounds therefor", which indicated that alternative remedy would not
operate as an absolute bar and that writ petition under Article 226
could still be entertained in exceptional circumstances.
17. A specific and clear rule was laid down in State of U.P. v. Mohd.
Nooh [AIR 1958 SC 86: 1958 SCR 595] as under: "But this rule
requiring the exhaustion of statutory remedies before the writ will be
granted is a rule of policy, convenience and discretion rather than a rule
of law and instances are numerous where a writ of certiorari has been
issued in spite of the fact that the aggrieved party had other adequate
legal remedies."
…….
18. This proposition was considered by a Constitution Bench of this
Court in A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj
Wadhwani [AIR 1951 SC 1506: (1962) 1 SCR 753] and was affirmed
and followed in the following words:
"The passages in the judgments of this Court we have extracted
would indicate (1) that the two exceptions which the learned
Solicitor General formulated to the normal rule as to the effect of
the existence of an adequate alternative remedy were by no
means exhaustive, and (2) that even beyond them a discretion
vested in the High Court to have entertained the petition and
granted the petitioner relief notwithstanding the existence of an
alternative remedy. We need only add that the broad lines of the
general principles on which the Court should act having been
clearly laid down, their application to the facts of each particular
case must necessarily be dependent on a variety of individual
facts which must govern the proper exercise of the discretion of
the Court, and that in a matter which is thus pre-eminently one of
discretion, it is not possible or even if it were, it would not be
desirable to lay down inflexible rules which should be applied
with rigidity in every case which comes up before the Court."
20. Much water has since flown under the bridge, but there has
been no corrosive effect on these decisions which, though old,
continue to hold the field with the result that law as to the
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jurisdiction of the High Court in entertaining a writ petition
under Article 226 of the Constitution, in spite of the alternative
statutory remedies, is not affected, specially in a case where the
authority against whom the writ is filed is shown to have had no
jurisdiction or had purported to usurp jurisdiction without any
legal foundation"
(emphasis added.)
9.2) In the case of Shri. Gangadhar Narsingdas Agrawal v. MoEF &
Ors, (2013) SCC OnLine Bom 683, which was a matter involving a challenge
to an order for closure of mine issued under Section 5 of the Environment
(Protection) Act, 1986 an appeal against which lies before the NGT, and an
Office Memorandum issued by the Ministry of Environment and Forest, the
Division Bench of this Hon'ble Court was pleased to hold as follows:
"11. Mr. Khambatta, learned Senior Counsel appearing for the
petitioner in Writ Petition No. 685/2012, submitted that the mere
fact that an appeal is provided under Section 16 of the National
Green Tribunal Act, 2010, does not bar the jurisdiction of this
Court to entertain a writ petition. In any case, this court will have
to consider the challenge to OM dated 2nd December, 2009 and
the Guidelines dated 19th August, 2010, since challenge to both
of them would not lie before the Tribunal and in such a case it
would lead to anomalous situation, resulting in miscarriage of
justice.
……..
18. We shall first deal with the preliminary objection taken on
behalf of respondent No. 1 regarding maintainability of the
present petitions. In all these petitions, the challenge is to the
impugned orders, suspending operations of mining activities, as
well as to the Office Memorandum dated 2.12.2009 and the
Guidelines dated 19.8.2010, issued by respondent No. 1. In our
view, the petitioners would not be entitled to challenge these
guidelines before the Tribunal constituted under the Act and,
therefore, it will be for this court to deal with the challenge to the
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said OM and the Guidelines. We also find merit in the submission
of Mr. Khambata that the petitioners cannot be relegated to two
remedies, one before the Tribunal and another before this Court,
when there is composite challenge to the impugned orders passed
by respondent No. 1 and the said OM and the Guidelines."
9.3) The Hon'ble Supreme Court in the case TN Godavarman vs Union
of India; WP (C) 202 of 1995, vide order dated 24.10.2024 in I. A. NOS.
157777 AND 157782 OF 2023 held as under:
"4. We therefore find that it will not be appropriate to lay down
universal guidelines so far as the restrictions to be imposed in the
Conservation Reserve and Community Reserve are concerned. The
Union of India has already framed guidelines which can be followed by
the State Governments on case to case basis for deciding as to what
restrictions are to be imposed in a particular Conservation Reserve and
Community Reserve."
10) Authorities relied upon by the Respondent No. 1.
10.1) The Hon'ble Supreme Court, in the case of A. Chowghule and
Company Limited v/s. Goa Foundation and ors., reported in (2008) 12 SCC
646 has observed that:-
“20. We also find that the observations in Ambica Quarry Works [(1987)
1 SCC 213], Rural Litigation and Entitlement Kendra [1989 Supp (1)
SCC 504], T.N. Godavarman Thirumulkpad [(1997) 2 SCC 267] and
M.C. Mehta [(2004) 12 SCC 118] would indicate that after the coming
into force of theAct, the renewal of a pre-existing mining lease in a
forest area can be granted only if the requirements of Section 2 are
satisfied. It is therefore obvious that the claim of the appellant confined
only to 4.44 ha is also untenable for the reasons given above and that in
any case, the beneficiation plant to which this area was to be attached
had been shifted from its earlier proposed location.”
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10.2) This Court in the case of Vanashakti and anr. v/s. Union of India,
reported in (2021) 1 HCC (Bom) 342 has observed that:-
“10. Power conferred on the High Courts by Article 226 of the
Constitution is very wide. Article 226 in terms does not place any limit
on the Court's power. However, writ remedy being discretionary, the
power has to be exercised judiciously bearing in mind certain self-
imposed restrictions propounded by authoritative decisions of the
Supreme Court. A writ court may decline interference if an alternative,
efficacious and speedy remedy is available to the petitioner who
approaches it with a grievance that his legal right has been infringed.
This is not based on any rule of law, rather it is based on a rule of policy,
convenience or discretion. There are four exceptions carved out by the
Supreme Court and if any one of such exceptions is present in a
particular case, the writ court may not to hesitate to entertain the plea.
However, here we are not concerned with an alternative remedy
available to the petitioners in the sense that they can choose between
two remedies made available by law. On the contrary, a remedy seems
to be available to them under the NGT Act; and if we hold that the
petitioners' plea is such that it can be entertained and decided by the
forum created by the NGT Act, which also provides an appellate remedy
before the Supreme Court on any one of the grounds mentioned in
Section 100 of the Code of Civil Procedure, it would seem to us that the
NGT Act instead of providing an alternative remedy, provides the first
remedy to an aggrieved party who seeks to raise a substantial question
relating to environment; and after suchremedy is exhausted, he may
explore further remedies as law would provide. Apart from this, delay
or laches in seeking redress before the writ court is one of the other
restrictions based whereon a plea, howsoever meritorious, may not be
entertained. We propose to proceed bearing these in mind.
17. The Environment Act figures in Schedule I of the NGT Act.
Therefore, for the purpose of the present case, the plain meaning of
sub-section (1) of Section 14 is that the Tribunal shall have the
jurisdiction to hear a civil case raising a substantial question relating to
environment (including enforcement of any legal right relating to
environment) subject, of course, to such question arising out of
implementation of the Environment Act. The contention advanced
before us is that the Tribunal cannot entertain a challenge to the
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impugned notification because it has no power or jurisdiction to declare
a delegated legislation unconstitutional or ultra vires. Let us now
consider how far such contention is acceptable.
18. The first question that would necessarily fall for our consideration
is, whether the impugned notification is a delegated legislation? The
answer, for the following reasons, cannot but be in the negative.
19. We have read the terms of the impugned notification as well as the
provisions, which are the source of its origin. Section 3 empowers the
Central Government to take all such measures as it deems necessary or
expedient for the purpose of protecting and improving the quality of
environment and preventing, controlling and abating environmental
pollution by restricting areas in which any industries, operations or
processes or classes of industries, operations or processes shall not be
carried out or shall be carried out subject to certain safeguards. By the
impugned notification, not only has the CRZ been declared but it
proceeds to provide for areas requiring special consideration under the
CRZ, prohibited activities and regulation of permissible activities within
the CRZ, coastal zone management plan, CRZ clearance for permissible
and regulated activities, etc. It has been notified with other measures
for the general information of the public. In effect,these measures are
which are geared towards implementation of the Environment Act.
20. We need not burden this order with any discussion on what
delegated legislation is. Suffice to say, the petitioners are laboring under
a misconception that the impugned notification is a law brought into
force by the Central Government in exercise of the power of delegated
legislation conferred by the Environment Act. Far from it, we see the
impugned notification as one which is a statutory order of the Central
Government made in pursuance of what is called in administrative law
as "administrative delegation". A legislature may confer upon AN
administrative authority not only the power to make rules and
regulations to carry out the purposes of a statute but also the power to
apply the law to particular cases by making orders in exercise of the
statutory power. So far as the validity of such orders themselves are
concerned, they are subject to the doctrine of ultra vires and must,
therefore, be within the limits set by the statute. Sections 6 and 25
specifically empower the Central Government to make rules in respect
of all or any of the matters referred to in Section 3 and for carrying out
the purposes of the Environment Act, respectively. Pertinently, the
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Environment (Protection) Rules, 1986 have been framed by the Central
Government in exercise of power conferred by Sections 6 and 25 of the
Environment Act. These rules, being delegated legislation, are distinct
and different from the statutory order made under Section 3. The
impugned notification not having been issued in exercise of the rule-
making power of the Central Government, cannot be seen as a product
of delegation legislation in the sense it is understood in administrative
law. This being our conclusion as to the nature of power that was
exercised to bring into existence the impugned notification, all the cited
decisions have no application.
22. All the concerns that the petitioners have urged do stand covered by
"substantial question relating to environment", and would also include
an attempt to enforce their legal rights in the pursuit of protecting the
environment; therefore, their plea is squarely covered by Section 14(1)
of the NGT Act.
23. Next, we proceed to deal with the contention that challenge to a
statute/subordinate legislation is not a "civil dispute". We feel, this
contention has been urged to be rejected. One has to really torture a
case of the present nature so that it does not fit into a "civil case". The
Tribunal has been vested with powers that are normally vested with
civil courts. A remedy of appeal to the Supreme Court is provided by
Section 22 on grounds as mentioned in Section 100 of the Code of Civil
Procedure. It would not be inapposite at this stage to remind ourselves
of what the Court observed in S.A.L. Supreme Row v. Ishwarlal
Bhagwandas [S.A.L. Narayan Narayan Row v. Ishwarlal Bhagwandas,
AIR 1965 SC 1818], on different kinds of proceedings. A passage from
such decision, providing useful guidance, is quoted below:
"8.... The expression 'civil proceeding' is not defined in the
Constitution, nor in the General Clauses Act. The expression in
our judgment covers all proceedings in which a party asserts the
existence of a civil right conferred by the civil law or by statute,
and claims relief for breach thereof.
………….
24. We say no more.
25. In Techi Tagi Tara case [Techi Tagi Tara v. Rajendra Singh Bhandari,
(2018) 11 SCC 734], the Supreme Court has held, in the context of the
NGT Act that a "dispute" would be the assertion of a right or an interest
or a claim met by contrary claims on the other side. Based on the
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aforesaid guidance provided by the Supreme Court, we hold that the
case laid by the petitioner before us, if the same had been laid before
the Tribunal, would partake the character of a "dispute" if the
respondents had chosen to contest the same by countering it. There is
absolutely no merit in the contention advanced and, thus, it stands
rejected.
31. The Tribunal's jurisdiction to deal with environmental issues is so
wide and expansive that literally speaking, "everything under the sun"
raising substantial question relating to environment can be dealt with
by it. It would matter little that in its pursuit to further the objects for
which the Tribunal has been brought into existence as well as to ensure
protection of environment and conservation of forests and other natural
resources including enforcement of any legal right relating to
environment, any other enactment is required to be considered. So long
as the basic question remains the same i.e. the Tribunal is either
approached or is duty bound to secure proper implementation of the
enactments specified in Schedule I of the NGT Act and a substantial
question in relation thereto arises, and the decision of the Tribunal on
such question would beneficially impact the environment, merely
because in the process of decision-making the Tribunal may be required
to consider provisions of any other enactment would not denude it of its
fundamental and predominant task of taking decisions that would
advance the object of the Schedule I enactments as also to secure the
ends of justice in any particular case. We may refer in this connection to
Rule 24 of the National Green Tribunal (Practice and Procedure) Rules,
2011 framed by the Central Government.
35. The discussion must end by quoting para 40 of the decision of the
Supreme Court in Bhopal Gas Peedith Mahila Udyog Sangathan v. Union
of India [Bhopal Gas Peedith Mahila Udyog Sangathan v. Union India,
(2012) 8 SCC 326], reading as follows: (SCC p. 347, para 40) of
"40. Keeping in view the provisions and scheme of the National
Green Tribunal Act, 2010 (for short 'the NGT Act') particularly
Sections 14, 29, 30 and 38(5), it can safely be concluded that the
environmental issues and matters covered under the NGT Act,
Schedule I should be instituted and litigated before the National
Green Tribunal (for short 'NGT'). Such approach may be
necessary to avoid likelihood of conflict of orders between the
High Courts and NGT. Thus, in unambiguous terms, we direct
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that all the matters instituted after coming into force of the NGT
Act and which are covered under the provisions of the NGT Act
and/or in Schedule I to the NGT Act shall stand transferred and
can be instituted only before NGT. This will help in rendering
expeditious and specialised justice in the field of environment to
all concerned."
10.3) This Court in the case of South West Port Ltd. v/s. State of Goa,
reported in 2018 (4) Mh.L.J. 678 has observed that:-
"19. The Article 226 of the Constitution of India, a remedy in public
law. The Article confers wide powers on the High Courts to reach
injustice, whenever it is found. The remedy is discretionary in
nature and the Court may refuse the grant of relief in certain
circumstances even though the legal right of the petitioner has been
infringed. The availability of an alternate remedy is one such
circumstance. This self- imposed restriction that the high
prerogative writ need not be issued if the party invoking the writ
jurisdiction has an alternate efficacious remedy, has been
consistently followed. It is a well-settled practice by the High Courts,
when an alternate and efficacious remedy is open to a party, to ask
the party to pursue that remedy and not to enforce the
extraordinary jurisdiction. The Apex Court has stressed that when
an alternate remedy exits, it is a sound exercise of discretion by the
High Courts to refuse to interfere in a petition under Article 226,
unless there are good grounds thereof. Thus, before we proceed to
consider the grant of the writ as sought for by the petitioner, we
must ascertain whether the petitioner has an alternate efficacious
remedy available.
20.In the past, the Supreme Court had stressed on the need for
setting up specialized environmental Courts. The Law Commission
in its 186th report recommended specialized Courts for dealing with
environmental cases. Pursuant to it, the National Green Tribunal
(NGT) Act, 2010 was enacted. National Green Tribunal was
established on 18 October, 2010 for effective and expeditious
disposal of cases relating to environmental protection and
conservation of forests andother natural resources. Section 4 of the
Act of 2010 specifies the composition of the Tribunal. Since many
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issues in the field of environment protection are technical in nature,
provision is made for the appointment of Expert Members, along
with the judicial members. Section 16 confers powers on the
Tribunal of appellate jurisdiction.
Section 16 reads thus:
"16. Tribunal to have appellate jurisdiction. -Any person aggrieved
by,-
……..
(e) an order or decision made, on or after the commencement of the
National Green Tribunal Act, 2010, by the State Government or
other authority under section 2 of the Forest (Conservation) Act,
1980 (69 of 1980);
……
may, within a period of thirty days from the date on which the order
or decision or direction or determination is communicated to him,
prefer an appeal to the Tribunal; Provided that the Tribunal may, if
it is satisfied that the appellant was prevented by sufficient cause
from filing the appeal within the said period, allow it to be filed
under this section within a further period not exceeding sixty days"
Section 19(4) confers the power of Review on the Tribunal. Section
22 provides for an appeal to the Supreme Court. A self-contained
methodology of redressal is thus provided under the Act to be
addressed by a specialized tribunal."
10.4) The Hon’ble Supreme Court in the case of Muneer Enterprises v.
Ramgad Minerals & Mining Ltd., reported in (2015) 5 SCC 366 has observed
that:-
“3. Writ petition in WP No. 23782 of 2005 was filed by one Dinesh
Kumar Singhi, a mine operator praying for a direction to the State
of Karnataka and Director of Mines and Geology to dispose of his
application dated 3-5-2001 for grant of licence to operate 819.20 ac
of the forest mining area in Jaisinghpur Village covered by the
erstwhile mining lease number ML No. 2010 of M/s Dalmia. We are
not concerned with the said writ petition, as the said writ petitioner
has not challenged the order of the Division Bench by which his writ
petition was dismissed. We are only concerned with the judgment
in Ramgad Minerals and Mining (P) Ltd. v. Muneer
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Enterprises [Ramgad Minerals and Mining (P) Ltd. v. Muneer
Enterprises, 2009 SCC OnLine Kar 412 : (2010) 4 Kant LJ 448] .
11. When the writ appeal was pending, based on the oral
application of the first respondent herein, the Division Bench
directed the State Government and the Director of Mines and
Geology to process its application for transfer of the renewal of the
lease in favour of the first respondent under the Forest Act, 1980
within two months and forward its report to the Central
Government with a further direction to the Central Government to
decide the same within three months. The appellant challenged the
said order dated 19-4-2006 in SLP No. 11508 of 2006. By an order
dated 26-10-2007 [Muneer Enterprises v. Ramgad Minerals and
Mining (P) Ltd., SLP (C) No. 11508 of 2006, order dated 26-10-
2007 (SC)] , this Court directed the Division Bench of the Karnataka
High Court to dispose of Writ Appeal No. 5377 of 2004 and that the
Order of the Central Government dated 13-9-2006 granting its in-
principle (Stage I) ex post facto approval granted in favour of the
first respondent would not create right/equity in favour of the first
respondent. By the impugned order dated 26-8-2009 [Ramgad
Minerals and Mining (P) Ltd. v. Muneer Enterprises, 2009 SCC
OnLine Kar 412 : (2010) 4 Kant LJ 448] , the Division Bench held
that renewal of mining lease without obtaining prior approval under
Section 2 of the Forest Act, 1980 would not render such renewal
void ab initio and any such illegality can be cured or regularised by
the Central Government by passing an order under Section 2 of the
Forest Act, 1980 ex post facto.
88. In this context, the reliance placed upon some of the decisions of
this Court by Mr Krishnan Venugopal, learned Senior Counsel
appearing for the first respondent needs to be considered. The
learned Senior Counsel for the first respondent relied upon the
decisions in Sethi Auto Service Station [Sethi Auto Service
Station v. DDA, (2009) 1 SCC 180] and Shanti Sports Club [Shanti
Sports Club v. Union of India, (2009) 15 SCC 705 : (2009) 5 SCC
(Civ) 707] for the proposition that “noting” in the department files
do not have sanction of law to be an effective order unless it
culminates into an executable order affecting the rights of the
parties and only when it reaches the final decision-making authority
in the Department, gets his approval and the final order is
communicated to the person concerned.
103. It is true that a reference to the amended Rules 6, 7 and 8 as
well as the earlier communication of MoEF did to some extent
support the stand of the learned Senior Counsel for the first
respondent. However persuasive such a contention may be as raised
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on behalf of the first respondent, we find it extremely difficult to
accept such a contention. As rightly pointed out by Mr Kapil Sibal,
learned Senior Counsel when we construe Rules 29 and 37(1-A)
read along with Section 19 of the MMDR Act, dehors any liberal
approach offered by the authorities of MoEF under the provisions of
the Forest Act, such relaxation in the matter of compliance with
conditions of prior approval would always be subject to the mining
lease granted under the provisions of the MMDR Act and the
Mineral Concession Rules is in a live stage. In other words, unless
the mining lease granted under the provisions of the MMDR Act
read along with the provisions contained in the Mineral Concession
Rules continue to remain valid and operative, the question of
compliance with the conditions for prior approval under Section 2
of the Forest Act even with whatever relaxation granted by the
authorities under the said Act will be of no use. In this context,
when we apply Section 19 of the MMDR Act. Section 19 of the
MMDR Act reads as follows:
“19.Prospecting licences and mining leases to be void if in
contravention of Act.—Any reconnaissance permit, prospecting
licence or mining lease granted, renewed or acquired in
contravention of the provisions of this Act or any rules or orders
made thereunder shall be void and of no effect.
Explanation.—Where a person has acquired more than one
reconnaissance permit, prospecting licence or mining lease and
the aggregate area covered by such permits, licences or leases, as
the case may be, exceeds the maximum area permissible under
Section 6, only that reconnaissance permit, prospecting licence
or mining lease the acquisition of which has resulted in such
maximum area being exceeded shall be deemed to be void.”
104. Thus, Section 19 makes the position clear that any mining
lease granted originally or renewed subsequently in contravention
of the provisions of the MMDR Act or any rules or any order made
thereunder to be void and of no effect. The expression used in
Section 19 is mandatory and therefore if any contravention of the
provisions of the MMDR Act or Rules or orders found in respect of a
mining lease originally granted or subsequently renewed such
mining lease should be treated to be void and inoperative for
operating the said mining lease. It must also be kept in mind that
carrying on any non-forest activity in a forest land can only be with
the prior approval of the Central Government under Section 2 of the
Forest Act, 1980. Therefore, for a mining lease to remain valid, twin
requirements of the approval of the Central Government under the
proviso to Section 5(1) of the MMDR Act and Section 2 of the Forest
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Act, 1980 have to be fulfilled. Therefore, a lessee cannot be heard to
contend that such statutory requirements are to be thrown
overboard and permitted to seek for such approvals after the expiry
of the lease at its own sweet will and pleasure and the time to be
fixed on its own and that the operation of the mining lease should
be allowed ignoring such mandatory prescription.
105. Keeping the abovesaid mandatory prescription in Section
19 in mind, when we analyse the case on hand, in the first place,
admittedly after the first renewal, there was a serious violation of
failure to get the prior approval under Section 2 of the Forest Act,
1980 i.e. when the renewal order was passed on 7-3-1986.
Therefore, if we strictly apply Section 19, it must be stated that even
as on 7-3-1986, for violation of Section 2 of the Forest Act, 1980 it
must be stated that, in law, there was no mining lease at all in
existence as it became void on the expiry of the initial period of the
original lease granted in 1953. It may be contended that such
violation gets cured by virtue of the judgments in Godavarman
(1) [T.N. Godavarman Thirumulpad v. Union of India, (1997) 2 SCC
267] and Godavarman (2) [T.N. Godavarman Thirumulpad v. Union
of India, (1997) 3 SCC 312] , though for argument sake, such a
contention put forth on behalf of M/s Dalmia and the first
respondent can be taken to be available, as pointed out by us earlier,
based on the said judgments of this Court when the in-principle first
stage approval was granted by imposing conditions in the order
dated 24-12-1997, such conditions were blatantly violated by M/s
Dalmia by taking a stand that it was not bound to comply with those
conditions. The reply of M/s Dalmia dated 16-4-1999, was sufficient
to confirm the said stand of M/s Dalmia. Therefore, as on 16-4-
1999, since the lessee viz. M/s Dalmia refused to comply with the
conditions imposed in the in-principle first stage approval, it cannot
lie in the mouth of either M/s Dalmia or anyone who seek to claim
any right through M/s Dalmia by contending that any violation of
Section 19 of the MMDR Act or any of the Rules of the Mineral
Concession Rules or orders made therein or Section 2 of the Forest
Act, 1980 should be ignored and the plea made on behalf of M/s
Dalmia as well as the first respondent should be accepted.
106. We are unable to accept such an extreme proposition canvassed
on behalf of M/s Dalmia and the first respondent, as in our
considered opinion, the violation had occurred at the time of the
order of first renewal viz. 7-3-1986 itself, striking at the very root of
the validity of the lease, as it must be held that it was void at that
very stage itself for non-compliance with the prior approval under
Section 2 of the Forest Act, 1980 and in any case, on the blatant
refusal to comply with the conditions imposed in the in-principle
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first stage approval granted in the year 24-12-1997. Once we are
able to come to the said conclusion, we hold that the mining lease
which was held by M/s Dalmia in ML No. 2010 became void and
inoperative for violation of the mandatory requirements of the
conditions. In this context, it will also be relevant to refer to Rule
37(1-A). The said Rule reads as under:
“37. (1-A) The State Government shall not give its consent to
transfer of mining lease unless the transferee has accepted all
the conditions and liabilities which the transferor was having in
respect of such mining lease.”
A reading of the said sub-rule which was introduced by GSR No.
724(E), dated 27-9-1994, shows that a substantive condition is
imposed while considering an application for consent for transfer of
mining lease.
118. In this context, it will be more relevant to state that mines
and minerals being national wealth, dealing with the same as the
largesse of the State by way of grant of lease or in the form of any
other right in favour of any party can only be resorted to strictly in
accordance with the provisions governing disposal of such largesse
and could not have been resorted to as has been done by the State
Government and the Director of Mines and Geology of the State of
Karnataka by passing the Order of transfer dated 16-3-2002. Such a
conduct of the State and its authorities are highly condemnable and,
therefore, calls for stringent action against them.
10.5) The Hon’ble Supreme Court in the case of Re : T.N. Godavarman
Thirumulpad v. Union of India, reported in 2023 SCC OnLine SC 504 has
observed that:-
“14. The first of such orders was passed by this Court on
16th September 20052. It will be relevant to refer to paragraph 13
of the said order, which reads thus:
“13. We have perused the affidavit dated 14-9-2005 filed by Mr
Anurag Bajpai on behalf of MoEF and the statement showing the
grant of temporary working permit in the last two years i.e. from
1-1-2003 to 31-12-2004 in the national parks, sanctuaries and
forest area. This is despite the order passed by this Court
restraining the mining activities in these areas. Learned amicus
curiae submits that the inspection of the government record
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shows a dismal picture and he would shortly file an application
for taking appropriate action against the persons concerned.
Pending filing of the said application and further orders, we
again reiterate that without compliance with the environmental
laws, in particular the permission under the Forest
(Conservation) Act, 1980, no temporary working permission or
temporary permit or any other permission by whatever name
called shall be granted for mining activities in the aforesaid
areas. We further direct that no mining activity would continue
under any temporary working permit or permission which may
have been granted. It appears from the chart filed with the
affidavit of Mr Anurag Bajpai that no temporary working
permission is in operation as of today. If it is otherwise, an
affidavit to that effect shall be filed within two weeks giving the
particulars of such permission.”
[emphasis supplied]
15. It can thus clearly be seen that this Court directed that no
mining activity would be permitted to continue under any
temporary working permit or permission which may have been
granted.
21. The next order of this Court is dated 21st April 2014 in the case
of Goa Foundation v. Union of India5. It will be relevant to refer to
the following observations of this Court in the said order:
“49. ……The result is that the order passed by this Court
saying that there will be no mining activity within one kilometre
safety zone around national park or wildlife sanctuary has to be
enforced and there can be no mining activities within this area
of one kilometre from the boundaries of national parks and
wildlife sanctuaries in the State of Goa.”
22. The Court has clarified that there shall be no mining activity
within one kilometre of the safety zone around National Park or
Wildlife Sanctuary and that this has to be enforced. It is also
reiterated that there can be no mining activities within this area of
one kilometre from the boundaries of National Parks and Wildlife
Sanctuaries in the State of Goa.
60. Insofar as the restriction on mining is concerned, we are of the
considered view that it has been the consistent view of this Court
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that the mining activities within an area of one kilometre of the
boundary of the Protected Areas will be hazardous for the wildlife.
Though in the case of Goa Foundation (supra), the said directions
were issued in respect of State of Goa, we find that such directions
need to be issued on Pan-India basis.
65. We also modify the direction contained in paragraph 56.4 of the
order dated 3rd June 2022 (supra) and direct that mining within
the National Park and Wildlife Sanctuary and within an area of one
kilometre from the boundary of such National Park and Wildlife
Sanctuary shall not be permissible.”
REASONING
11) The Petitioner No.1 has challenged the communication dated 27 th
March 2019 by which the MoEFCC closed Petitioner No. 1’s proposal for
extension of forest clearance to run co-terminus with the mining lease. The
principal contention of Petitioner No. 1 is that, the mining lease of Petitioner
No. 1 was in existence as of 12 th January 2015 when Section 8A was inserted
in the MMDR Act 1957. The said contention is principally based on the
following two grounds. (i) when Petitioner No. 1 applied for renewal of
mining lease on 12th May 1997 under Rule 24A(1) and Rule 24B of the MC
Rules, 1960, Petitioner No. 1 being a captive user was entitled for a renewal
of at least 20 years. (ii) the Petitioner No. 1’s renewed mining lease was
executed on 25th September 2008, pursuant to the forest clearance dated
1st/3rd October 2001 and valid till 24th September 2018. Further that, perusal
of letter dated 23rd October 2017 of MoEFCC would clearly indicate that, in
any event application of the Petitioner No. 1 dated 30 th March 2010 seeking
extension of Forest Clearance granted on 1 st/3rd October 2001 was pending as
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of 12th January 2015. Therefore Petitioner No.1 was entitled to the benefits
under Section 8A(5) of the MMDR Act.
12) Perused the entire record. The mining lease dated 21 st May 1968
was a lease for captive use i.e. to be used in own industry, for a period of 30
years and valid till 22nd May 1998. Under the lease deed dated 21 st May 1968,
for renewal of lease it was incumbent on the Petitioner No. 1 to give to the
State Government a prior six month notice in writing. The State Government
under Rule 24 of the MC Rules, 1960 was entitled to pass an Order in that
regard. The Forest Conservation Act, 1980 came into force in 1980 and under
Section 2 of the FC Act prior approval of the Central Government is a must
and is required to be taken for the purposes of de-reservation of the forest and
for use of the forest land for any non-forest purpose. On 12 th May 1997,
Petitioner No. 1 within the required period and under Rule 24A(1) of the MC
Rules, 1960 made an application for seeking renewal of mining lease, for an
area of 207.20 hectares out of 319.7 hectares. After more than 2 years of the
Petitioner No. 1 submitting the renewal application, Government of
Maharashtra vide letter dated 23rd July 1999 and 11 th October 1999 sought
prior approval from the Central Government under Section 2 of the FC Act for
renewal of the mining lease and construction of the feeder road. The Central
Government and State Government on 10 th November 2000, 12th December
2000 and 13th June 2001 granted temporary permission to the Petitioner No. 1
to continue mining operations.
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13) On 1st/3rd October 2001, the Central Government while referring
to the letter dated 23rd July 1999 and 11th October 1999 of the Government of
Maharashtra conveyed its prior approval to the proposal of Petitioner No. 1
submitted by the State Government. This approval was granted in respect of
106.76 hectares of forest land for the renewal of the mining lease and
construction of feeder roads. Under the FC Approval, the mining lease was
granted for a period of 10 years, on the ground that approximately 80% of the
mineral had already been extracted. By letter dated 21 st April 2006 MoEFCC,
Government of India clarified that, the period of 5 years under the FC
approval was to be counted from 3rd October 2001. The Government of India
by letter dated 1st March 2007 granted environmental clearance.
14) The first 5 years period ended on 2 nd October 2006. On 4th
October 2006 the Central Government notified that Petitioner No. 1 would be
entitled to carry out mining operations for another period of 5 years i.e. till 2 nd
October 2011.
15) On 13th February 2008, the Government of Maharashtra granted
the first renewal of the mining lease with effect from 22 nd May 1998.
Thereafter, by letter dated 22 nd February 2008 addressed to the Principal
Secretary (Industries), Industry and Labour Department, Government of
Maharashtra, Petitioner No. 1 requested that the lease period be corrected and
extended up to October 2011, in line with the approval granted by the
MoEFCC, or, in the alternative, that the lease be renewed for a period of 20
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years under Rule 24B of the MC Rules, 1960.
16) On 30th March 2010, the Petitioner No. 1 made application for
extension of FC approval in form ‘B’ under the FC Rule 2003 (“FC approval
extension application”). We have noted that, this application was filed within
the prescribed time and for an area of 34.43 hectares (out of the area of
106.76 hectares) for which the forest clearance was granted on 1 st/3rd October
2001. During the period when the Petitioner No. 1’s extension of the FC
approval was pending, that the State Forest Department on 3 rd October 2011
took over the possession of the renewed mining lease area and also the entire
Bauxite dump lying at the site. This was done without giving any notice to
Petitioner No. 1 as is contemplated under the lease deed and the rules. The
record would indicate that, Petitioner No. 1 had applied for the renewal of
mining lease in accordance with Rule 24A(1) of the MC Rules, 1960. The
mining lease granted to the Petitioner No. 1 being for own industry
use/captive use, Rule 24B of MC Rules, 1960 was applicable to the Petitioner
No. 1.
17) Perusal of Rule 24A of the MC Rules, 1960 would indicate that,
the application for renewal of mining lease, is to be made to the State
Government in Form- K at least 12 months before the date on which the lease
is due to expire. Under Sub-Rule (2) the renewal of mining lease in respect of
mineral specified in part (a) and part (b) of the first schedule of the MMDR
Act, may be granted by State Government with the previous approval with
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Central Government. Under Sub-Rule (3) for minerals not specified in the part
(a) and (b) of the first schedule of the MMDR Act, the State Government may
grant approval of renewal. Proviso to Sub-Rule (3) specifies that, before
granting approval for second or subsequent renewal of mining lease the State
Government shall seek report from the Controller General, Indian Bureau of
Mines, indicating as to whether it would in the interest of mineral
development to grant the renewal of the mining lease. The Rule further
provides that, in case the report from the Controller General, Indian Bureau of
Mines is not received within a period of 3 months of the communication of the
State Government, it would be deemed that, the Indian Bureau of Mines had
no adverse comment to offer regarding the grant of renewal of mining lease.
18) Sub-Rule (6) of Rule 24A of the MC Rules, 1960, provides that, if
the application for renewal of mining lease is made within time and the same
is not disposed of by the State Government before expiry of the lease, the
lease shall be deemed to have been extended by the further period till the
State Government passes Order thereon. Under Sub-Rule (10) State
Government has power to condone delay in an application for renewal of
mining lease made after the time limit prescribed in Sub-Rule (1) provided
that the application has been made before the expiry of the lease.
19) Rule 24B of the MC Rules, 1960 provide for renewal of mining
lease in favour of person using mineral for his own industry and provides that
every person who is holding a mining lease for a mineral which is used for his
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own industry (captive use) shall be entitled for renewal of mining lease for
period of not exceeding 20 years unless he applies for lesser period. The
explanation to Rule 24B defines own industry to mean an industry of which
the lessee is an owner and in which the lessee holds not less than 50% of
controlling interest.
20) Perusal of Rules 24A and 24B of MC Rules, 1960 would indicate
that, there is procedure prescribed for making an application for renewal of
mining lease. The rule envisages the period before which the application of
renewal is to be made, the minerals for which the previous approval of the
Central Government is to sought. That, in respect of second or subsequent
renewal of mining lease the State Government shall seek a report from the
Controller General as to whether it would be in the interest of mineral
development to grant the lease and if the said report is not received within a
period of 3 months, it would be deemed that the Indian Bureau of Mines does
not have any adverse comments to offer. It is further a requirement of the
rules that, where an application for renewal of a mining lease is made before
the expiry of the lease period, the period of the lease shall be deemed to have
been extended for a further period until the State Government passes an order
on such application. The State Government also has the power to condone the
delay in respect of any application of renewal of lease so long as the same is
made before the expiry of the lease. Rule 24B of the MC Rules, 1960 provides
for renewal in case of mining lease for own industries. A conjoint reading of
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Rule 24A and 24B of MC Rules, 1960 would indicate that, as far as application
for renewal of mining lease by a person using a mineral for his own industry
(captive use) is concerned, the application for the renewal should be made at
least 12 months before the date on which the lease is due to expire and if
made by a person holding a mining lease for using the mineral for his own
industry he shall be entitle for renewal of mining lease not exceeding 20 years
unless he applies for lesser period. As far as Rule 24B of the MC Rules, 1960 is
concerned the same clearly indicates that, in respect of mining lease for an
own industry (captive use) the lessee is entitled to a renewal of a period not
exceeding 20 years unless he applies for lesser period. In the backdrop of Rule
24A and 24B of MC Rules, 1960 if the case of Petitioner No. 1 is considered,
the Petitioner No. 1’s Original Lease dated 21 st May 1968 was to expire on
22nd May 1998 and the application by Petitioner No. 1 was made on 12 th May
1997 i.e. before the expiry of 12 months and in compliance of Rule 24A(1).
Once that application is made under Rule 24A(1) Petitioner No. 1 under Rule
24B of the MC Rules, 1960 being a mining lease for own industry was entitled
for renewal of mining lease for a period not exceeding 20 years.
21) In our considered opinion Rule 24B of MC Rules, 1960 is a
distinct rule made specifically only for renewal of mining lease for persons
using mineral for own industry (captive use). In respect of mining lease for
persons other than those using mineral for own industries the provisions of
Rule 24A of MC Rules, 1960 would be applicable. Even assuming that the
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provisions of Rule 24A of MC Rules, 1960 is applicable to the Petitioner No. 1
in its entirety the only harmonious way of reading Rule 24A and 24B of MC
Rules, 1960 would be that the Petitioner No. 1 makes an application within
time and in case of the first renewal, Petitioner No. 1 would entitle to renewal
of mining lease not exceeding 20 years unless he applies for lesser period.
Perusal of the application dated 12th May 1997 would indicate that, the
Petitioner No. 1 had applied for a period of 30 years. In our considered view,
the Petitioner No. 1 could not have applied for period of 30 years. What Rule
24B of MC Rules, 1960 provides is that a mining lease for captive use shall be
granted for a period not exceeding 20 years, unless the applicant applies for a
lesser period. It is only where the Petitioner No. 1 specifically applies for a
period lesser than 20 years that the application may be considered for such
lesser period. In the absence of any application by the Petitioner No. 1 seeking
a lesser lease period, the Petitioner No. 1 would be entitled to a lease for a
period of 20 years under Rule 24B of MC Rules, 1960.
22) In our opinion, Petitioner No. 1 ought to have under Rule 24B of
MC Rules, 1960 been granted 20 years lease renewal from 22 nd May 1998 and
if that interpretation is accepted then the lease period would expire on 21 st
May 2018. The other possible interpretation is that, after Petitioner No. 1
applied for renewal of mining lease under Rule 24A(1) of MC Rules, 1960 the
lease of the Petitioner No. 1 was automatically extended till the State
Government passed an Order. In the present case though the FC Approval was
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granted on 1st/3rd October 2001, the State Government issued an Order only
on 13th February 2008 and then the lease deed executed on 25 th September
2008. From the record, we find that, the said delay/time gap from 13 th
February 2008 till 25th September 2008 or any other period cannot be
attributed to the Petitioner No. 1. The Petitioner No.1 cannot be penalized for
no fault of the Petitioner No. 1. The Respondents have not been able to point
out any default on the part of the Petitioner No. 1 or delay in applying for the
required approvals and permissions.
23) By the Mines and Mineral (Development and Regulation
Amendment Act, 2015) Section 8A was inserted in the MMDR Act, 1957 with
effect from 12th January 2015. Section 8A deals with the period of grant of
mining lease for minerals other than Coal, Lignite and Atomic Minerals.
Section 8 provide for period for which the mining lease may be granted or
renewed for mineral specified in part (a) of the schedule.
24) In respect of Bauxite, the mineral with which we are concerned in
the present case, Section 8A would be applicable as Bauxite is a mineral which
is not specified in part (a) and part (b) of the first schedule of the MMDR Act,
1957. Under Section 8A(5) of the MMDR Act, 1957 notwithstanding anything
contained in Sub-Sections 2, 3 and 4 the period of lease granted before the
date of commencement of the MMDR Act, 1957 where mineral is used for
captive purpose shall be extended and be deemed to have extended upto a
period ending on 31st March 2030 with an effect from the date of expiry of the
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period of renewal last made or till completion of renewal period, if any, or for
a period of 50 years from the date of grant of such lease whichever is later.
25) Under Section 8A(9) of the MMDR Act, 1957 it is provided that,
the provisions of the section shall not apply to a mining lease granted before
the date of the commencement of the MMDR Amendment Act, 2015 for which
renewal has been rejected, determined or lapsed.
26) The main contention of Respondent No. 1 and the State
Government is that, the benefit of Section 8A of the MMDR Act, 1957 cannot
be extended to the Petitioner No.1 as the mining lease of the Petitioner No.1
had lapsed on 22nd May 2008. The said contention is advanced on the ground
that, the lease deed dated 21st May 1968 was for a period of 30 years and
valid till 22nd May 1998 and that the lease deed provides that, the extension of
lease would have to be taken from 22 nd May 1998. The case of Respondent
No.1 is that, when the Forest Clearance was granted on 1 st`/3rd October 2001
for a period of 10 years, on the basis of which the State Government could
have renewed the lease then in that event the renewal ought to date back or
be with effect from 22nd May 1998 for period of 10 years and would have
expired on 21st May 2008. It was further argued on behalf of the Respondent
No. 1 that, the execution of the Mining Lease dated 25 th September 2008 by
the State Government pursuant to the Order dated 13 th February 2008 is
totally misconceived and untenable. That, the extension of mining under the
lease deed can only be from the date of expiry of Original Lease Deed and
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under Section 111(a) of the Transfer of Property Act, 1882 once a lease deed
expires by efflux of time there is no lease deed in existence. In our opinion
there cannot be a period of interregnum where the mining activity is not
covered under the lease deed or the approval under Section 2 of the FC Act. In
the present case, Petitioner No. 1 has made all the required applications. The
submissions made by learned Advocate for Respondent No.1 is made without
considering the provisions of Rule 24A and 24B in its entirety. As noted above
Rule 24A of MC Rules, 1960 provides the procedure of renewal of mining
lease. Sub-Rule (6) of Rule 24A provides that once application is made before
the expiry of the lease, the period of that lease shall be deemed to have
extended by further period till the State Government passes an order thereon.
Further, Rule 24B of the MC Rules, 1960 provides that in case of captive use as
in the case of the Petitioner No. 1 the lessee shall be entitled for mining lease
for a period not exceeding 20 years. Along with Rules 24A and 24B it would
also be necessary to refer to Rule 31 of the MC Rules, 1960. Most pertinent to
note that, the State Government has not taken any steps to cancel the said
lease deeds executed with the Petitioner No. 1.
27) Perusal of Rule 31(2) of the MC Rules, 1960 provides that, the
date of commencement of mining lease granted shall be date of which duly
executed deed is registered under Sub-Rule (1). Rule 31(2) does not permit
the commencement of mining lease which from date anterior to date of
execution. A useful reference in this regard be made to judgment in the case
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of Northern India Lime Marketing Association v. State of U.P., reported in 1983
SCC OnLine All 164 held that: -
“10. Where, as in the instant case, the term of the lease is computed
from a date anterior to the date of the execution thereof that does
not in any manner defeat the object of the Act. The position might
vary where the commencement of the term is postponed indefinitely
or to some future date. R. 31(2) is designed, in our opinion, to
provide against such an eventuality. Moreover, the Rules do not
provide, expressly or impliedly, that a lease in which the term
commences from a date preceding the execution thereof is rendered
void or unenforceable on that account. That also reflects against the
alleged mandatory character of Rule 31(2).”
27.1) Considering the provisions of Rule 31(2) of MC Rules, 1960, the
argument advanced on behalf of the Respondent No. 1 that, Rule 31(2) only
deals with mining lease which is executed for the first time, in our opinion, on
a bare perusal of Rule 31(2) would not be sustainable.
28) In our opinion on a conjoint reading of Rule 24A, 24B and
31(2)of the MC Rules, 1960 it would be clear that, once the Petitioner No. 1
had applied for renewal under 24A(1) of the MC Rules, 1960, the Petitioner
No. 1 being Captive User under Rule 24B of the MC Rules, 1960 would be
entitled for a renewal of mining lease for a period not exceeding 20 years as
Petitioner No. 1 has admittedly not applied for lesser period. Considering the
facts of the present case in our opinion the provisions of Rule 24B of MC
Rules, 1960 would be applicable to Petitioner No. 1 and would make the
Petitioner No. 1 eligible for a mining lease for a period of 20 years,
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commencing from 22nd May 1998 and ending on 21 st May 2018. We have also
noted that, the learned Advocate for Respondent No. 1, during the arguments
has categorically submitted and conceded to the fact that, the Petitioner No.
1’s case is covered in Rule 24B of the MC Rules, 1960. The learned AGP, has
on instructions informed this Court that no steps have been taken to cancel
the lease deed dated 25th September 2008 and 5th January 2018. In such a
case, the provisions of Section 8A(5) would be applicable to the Petitioner,
and it would have to be construed that the Petitioner No. 1’s lease stood
extended until 31st March 2030.
29) We have also noted the MoEFCC directions dated 1 st April 2015
issued to Principal Secretary Forest of all the States and Union Territories the
relevant portion of which reads as under: -
“…..
3. After careful examination of the matter I am directed to say
that in case of existing mining leases in respect of minerals
specified in sub-section (1) of section 8A of the MMDR Act, 1957,
as inserted by the Minerals (Development and Regulation)
Amendment Ordinance, 2015, period of validity of approvals
accorded under Section 2 of the FC Act shall be extended, and
shall be deemed to have been extended upto a period co- terminus
with the period of mining lease in accordance with the provisions
of the MMDR Act, 1957, as amended, subject to the following
conditions..
(i) The State Government shall, within a period of two years from
date of issue of this letter, realise from the user agency, Net
Present Value ('NPV') of the forest land for which period of
validity if approval under the FC Act has been extended, in case
the same has not already been realised, and transfer the same to
the ad-hoc Compensatory Afforestation Fund Management and
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Planning Authority (CAMPA).
(ii) In case NPV of forest land for which period of validity if
approval under the FC Act has been extended by this letter has
not already been realised and the State Government fails to realise
the same from the user agency within a period of two years from
the date of issue of this letter, approval accorded under the FCA
Act for such forest land shall be kept in abeyance and shall be
deemed to have been kept in abeyance, till such time, the NPV of
such forest land is realised by the State Government.
(iii)Provisions of this letter, notwithstanding anything contained
therein, shall not apply to forest land falling in a mining lease for
which renewal has been rejected, or which has been determined
or lapsed before the issue of this letter.”
30) We have also noted the direction dated 1 st May 2015 issued by
the MoEFCC which further elaborated and clarified the direction dated 1 st
April 2018 read as under: -
“…..
2. It has been observed that several proposals seeking prior
approval of Central Government under the FC Act for renewal in
accordance with the provisions of the MMDR Act, 1957 prior to its
amendment by promulgation of the above-mentioned Ordinance,
of mining leases, to which provisions the afore-mentioned
guidelines, extends, are presently under various stages of
examination. In the Central and State Governments. Such
proposals are now not required to be further processed in case
prior approval of Central Government under the FC Act for the
entire forest land indicated in such proposals has already been
obtained during the original lease period or previous renewal(s)
the mining lease.
3. Accordingly, after careful examination of this matter, I am
directed to say as below:
(i) Proposals seeking prior approval of Central Government
under the FC Act for renewal in accordance with the
provisions of the MMDR Act, 1957 prior to its amendment by
promulgation of the above-mentioned Ordinance, of mining
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leases, to which provisions of the afore-mentioned guidelines,
extends, shall be closed in case prior approval of Central
Government under the FC Art for the entire forest land
indicated in such proposal has already been obtained during
the original lease period or previous renewal(s) of the mining
lease"
…………..
31) Perusal of the said directions would indicate that, in cases where
forest clearance had already been obtained during the subsistence of the
original mining lease, pending proposals seeking the prior approval of the
Central Government for renewal of the mining lease under the FC Act were
not required to be processed further and were accordingly closed. In such
cases, the forest clearance was deemed to have been extended in accordance
with the directions issued on 1 st April 2015. In short, as per the directions
issued by the MoEFCC, forest clearances pertaining to mining leases covered
under Section 8A of the MMDR Act were deemed to have been extended for a
period co-terminus with the mining lease.
32) Perusal of the record would indicate that, the State Forest
Department have given recommendations favoring the Petitioner No. 1 for
extension of the forest clearance which was previously granted to the
Petitioner No. 1. The impugned Order fails to consider the said
recommendations in their entirety. The said recommendations are primarily
based on the aforesaid directions of the MoEFCC. Perusal of the
recommendation dated 9th March 2016 of the Deputy Forest Conservator
would indicate that, the recommendation was in favour of the activation of
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the mining project. The recommendation is based on MoEFCC direction dated
1st April 2015. It is observed that for the existing Mining Lease the period of
validity of approval under the FC Act shall be extended to period co-terminus
with the Mining Lease.
33) We have noted that, from the stand point of the environment and
maintaining ecological balance the recommendation observes that, the area is
already broken due to Bauxite mining operation and that the area was
covered under a Forest Clearance. The recommendation proceeded on the
basis that, the forest area is diverted for mining operation which have been
carried out till 2nd October 2011. It is observed in the recommendation that,
the plateau is being used by wild animals during rainy season and that the
Petitioner No. 1 has agreed to provide horizontal holes in the wall area for
cross ventilation so that wind flow will remain in the area making it useful for
wild animals during the rainy season. According to Deputy Forest Conservator,
this was a good mitigating measure to maintain natural condition after closure
of the mine and that it would be useful for the wild life.
33.1) It is further observed in the recommendation that, Langoors were
visiting the site and there were droppings of wild pig, Porcupine, Beer, Gaur,
Sambar and Leopard. The recommendation specifically observes that,
although the carrying out of mining operations would result in temporary
disturbance to wildlife, appropriate mitigating measures should be
undertaken, including the development of meadows to restore the area as a
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suitable wildlife habitat. It was further recommended that, the area be
developed as a meadow rather than through afforestation with trees, so as to
maintain adequate wind flow after closure of the mine. It is specifically and
pertinently observed that, accessible and escape slopes should be provided by
Petitioner No. 1 along the ponds to enable wildlife to enter and exit the water
bodies safely.
33.2) The recommendations further made are that, wildlife occupancy
studies were required to be continued for a further period of two years after
closure of the mine, and various studies, including camera-trap and occupancy
studies, were required to be conducted through independent agencies. It is
specifically observed that, as the area is diverted for mining purposes and
Bauxite mining operations were continued till 2 nd October 2011 no fresh tree
cutting is involved. The report also makes a mention that, the area has been
occupied by overburden/Bauxite dump. It is specifically stated that, the
mining lease allotted to Petitioner No. 1 is a captive source of Bauxite for its
alumina refinery located at Belagav (in Karnataka State). The
recommendations of the Inspecting Officer were that, in view of the legislative
development, the office was of the view that, the forest clearance accorded on
3rd October 2001 was now deemed to have been extended up to validity of
mining lease. In our considered view the said recommendations ought to have
been considered and dealt with by their Impugned Order.
34) The Additional Chief Forest Conservator and Nodal Officer by
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letter dated 18th May 2016 addressed to the Secretary (Forest), Revenue and
Forest Department, Government of Maharashtra after referring to the report
dated 9th March 2016 and the letter dated 22 nd March 2016 and the Central
Government guidelines dated 1st April 2015 and 1st May 2015 requested the
Government of Maharashtra to give directions.
35) The Principal Secretary (Forest) Government of Maharashtra vide
its letter dated 7th February 2017 addressed to the Secretary to Government of
India, MoEFCC recommended the proposal for extension of mining lease in
favour of the Petitioner No. 1 for 106.76 hectares forest land till 24 th
September 2018. The said recommendation was inter alia based on the
following
“………….
9. As per request of the user agency, principal chief conservator of
forest (HoFF) Maharashtra State, Nagpur has recommended the
proposal subject to the following conditions: -
i) In accordance with the Government of India’s guidelines dt.
01/04/2015 dt. 01/05/2015 before gets permission it will be
mandatory for user agency to defray the NPV:
ii) The permission to extend the lease is subject to a decision
of the Writ Petition No. 4125/2015 pending before the Hon’ble
High Court, Mumbai.
Iii) All other terms and condition accept condition no. ‘k’ and
‘d’ of the final permission of the proposal from Government of
India letter dated 03/10/2001 will be mandatory.
iv) The permission for diversion of the forest land for non-
forest purpose under Forest (Conservation) Act, 1980 will be
co-terminus with the valid period of the mining lease.
v) The User Agency has now requested diversion of only 30.64
ha. Forest land under Forest (Conservation) Act, 1980 in
conformity with the diversion of forest land of 106.76 ha. In
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the year 2001. However, as per the directions of Government
of India dtd. 01/04/2015, the final permission granted to the
original proposal will be co-terminus with the period of mining
lease i.e. till 24/09/2018, therefore, it will not be proper to
accept request of the User Agency to charge NPV only for
30.64 ha. As per the directions of the Government of India, the
User Agency will deposit the amount of Net Present Value for
106.76 ha. Forest area which is granted earlier.
10. The opinion of the Law and Judiciary Department,
Government of Maharashtra was sought in the matter. The
operative part of the opinion is as under: -
“In view of the fact that the lease in the present
matter has been renewed in 2008 for the period of 10
years i.e. till 2018, the Forest Clearance u/s 2 of the FC Act
is required to be extended and shall be deemed to have
been extended upto a period co-terminus with the period
of mining lease in accordance with the provisions of the
MMDR Act, 1957 as amended in 2015 and the subsequent
directives issued by the Government of India.”
11. In the circumstances explained in above paragraphs and
enclosures, the State Government recommended the proposal for
extension of mining lease on 106.76 ha. Forest land till
24/09/2018 for approval. The same may please be obtained and
communicated to this Government at earliest.”
35.1) Perusal of the letter dated 7th February 2017, would also indicate
that as of 7th February 2017, the application of the Petitioner No. 1 dated 30 th
March 2010 for extension of FC Approval was pending and under
consideration. We are of the opinion that, at least for the purpose of Section
8A(9) of the MMDR Act 1957, the proposal had not lapsed nor been
rejected/determined. Therefore the provisions of Section 8A(5) of the MMDR
Act, 1957 would also be applicable to the Petitioner No. 1.
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36) On 23rd October 2017 the Government of India, MoEFCC
addressed a letter to the Principal Secretary, Government of Maharashtra and
while referring to letter dated 7th February 2017 found that, the State
Government did not furnish the proposal for further renewal of the forest
clearance prior to one year of its expiry as per the guidelines. It was further
observed that, as per the guideline dated 1 st April 2015 the Government of
Maharashtra was to realize NPV from the Petitioner No.1 within the
prescribed period which was not done. The MoEFCC in view of the said facts
requested the Government of Maharashtra to obtain the proposal from the
Petitioner No.1 in the prescribed form-B as per the guidelines issued under the
FC Act and forward the same with a convincing justification for non-
submission of proposal for renewal in time to the ministry.
37) Perusal of the letter dated 23 rd October 2017 makes it clear that,
Petitioner No.1 had submitted its proposal in time, the Forest Department of
Government of Maharashtra including the Principal Secretary (Forest),
Government of Maharashtra had recommended the extension of the Petitioner
No. 1’s forest clearance. The letter dated 23 rd October 2017 would clearly
indicate that, the delay, if any, was at the instance of Government of
Maharashtra and further that as of 23 rd October 2017 the Petitioner No. 1’s
application dated 30th March 2010 seeking extension of forest clearance dated
30th March 2010 was pending. We note that the letter dated 23 rd October 2017
makes it clear that the application of Petitioner No. 1 was neither rejected nor
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disposed of, nor had it lapsed; rather, it remained pending for consideration.
The directions issued by the MoEFCC vide letters dated 1 st April 2015 and 1st
May 2015 were, therefore, applicable to Petitioner No. 1. Consequently,
Petitioner No. 1 would not be governed by, or be adversely affected by, the
provisions of Section 8A(9) of the MMDR Act, 1957. Further it is pertinent to
note that, the State Government had executed the lease deed on 25 th
September 2008 for a period of 10 years ending in the year 2018. Further
pursuant to the Order dated 10 th November 2017 the lease deed was executed
on 5th January 2018 and valid till 31st March 2030. We have also noted that,
the State Government has not taken any steps to cancel the said lease deeds
or challenge the same in any manner whatsoever.
38) By letter dated 15th February 2019 the Additional Principal Chief
Conservator Forest and Nodal Officer addressed letter to the Principal
Secretary (Forest), Revenue and Forest Department. It is based on this letter
that, the Order dated 27th March 2019 was passed closing the proposal of
Petitioner No. 1 for extension of validity of forest clearance to make it co-
terminus with the provision of the MMDR Amendment Act, 2015. In our
opinion it would necessary to reproduce the contents of the said letter. The
letter reads thus: -
“1. As per the reference no. 1, the State Government recommended the
proposal to the Central Government for extension of mining lease on
106.76 ha. forest land till 24/09/2018 for approval.
2. Thereafter, as desired by the State Government vide letter no. FLD-
2316/CR187/F-10 dated 14/03/2017, the comments of this office
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have already been submitted vide reference 2.
3. In respect of the reference no.1 of the State Government, the
Central Government, vide their reference 3 has made following
observations.
As far as guidelines dated 01/04/2015 is concerned, the State
Government has to realize NPV from the user agency within a
prescribed period. But in the instant case, the NPV is yet to be
realized.
In view of above, the State Government is requested to obtain the
proposal from the project proponent in the prescribed Form B as
per extant guidelines issued under Forest (Conservation) Act, 1980
and to forward the same with convincing justification for non-
submission of the proposal for renewal in time to this Ministry for
consideration. The present status of case filed by the project
proponent in Hon'ble Court may also be intimated.
4. Thereafter vide reference no.4, the Central Government has again
reminded to submit compliance with respect to the queries as stated
above and has further directed as follows-
Before any further action is taken on the proposal by this ministry
the State Government is requested to furnish their response on
ministry's letter dated 23/10/2017 along with the comments of the
State Government under the representation made by the User
Agency vide their letter dated 01/11/2018.
5. As per reference no.5 and 6, it has been communicated that
meeting in the subject matter is scheduled on 21/02/2019 at New
Delhi and Nodal Officer has been directed to attend the said meeting.
6. This office has gone through the abovementioned representation
dated 01/11/2018 from the User Agency and also referred the relevant
case papers. Before offering comments, it would be appropriate to
highlight the background of the matter for better appreciation of the
case.
BACKGROUND
6.1. The User Agency was granted a mining lease by the State
Government vide letter dated 10/02/1968in respect of bauxite mining
from an area of about 319.70 ha. for a period of 30 years from 1968 to
1998. It was executed for a period of 21/05/1968 to 22/05/1998.
6.2. Thereafter the User Agency submitted the proposal under the
Forest (Conservation) Act, 1980 for diversion of 210.99 ha forest land
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for bauxite mining for a period of 20 years. In between, the User
Agency was granted approval for temporary working permission from
time to time. First such permission was granted by the Central
Government vide its letter dated 10/11/2000.
6.3. The Central Government vide letter dated 03/10/2001 conveyed
its formal approval in respect of 106.76 ha. forest land for renewal of
Kasarsada mining lease and construction of feeder road in favour of
M/s INDAL. The relevant conditions under the said approval were as
under.
Condition 2(c): The renewal of mining lease would be for a
period of 10 years only, as about 80% of mineral has already been
mined. This period shall be with effect from 10/11/2000 i.e. date
of grant of first temporary working permission.
Condition 2(d): - This permission of 10 years shall be further
subject to compliance of conditions at the end of five years. The
ministry will monitor the mining activities and compliance of
conditions at the end of five years. If operations are not in
compliance after five years, mining cannot continue in second
five years.
A plain reading of said conditions would reveal that, though the
forest clearance was sought for 20 years, the Central Government
curtailed to 10 years on the grounds that about 80% of the mineral
had already been mined at the time of the said approval.
6.4. The ministry vide letter dated 04/10/2006, after careful
consideration of the monitoring report, conveyed its approval for
allowing mining for another five years in accordance to the condition
no.2 (d) of the above stated formal approval.
6.5. Thus, from the above stated final approval dated 03/02/2001 of
the Central Government, it is evident that the forest clearance was
valid up to 9/11/2010 and not up to 2/10/2011, as has been indicated
in the correspondences made so far. Thereafter the User Agency was
sanctioned the renewal of mining lease vide order dated 13/02/2008-
06 and corrigendum dated 22/05/2008 issued by Industries, Energies
and Labour Department in Government of Maharashtra in respect of
an area of 106.76 ha. It may be pointed out that the order dated
13/02/2008 clearly mentions that: the renewal of mining lease was for
a period of 10 years from the date 22/05/1998, meaning thereby that
the said renewal stood expired on 21/05/2008, by the efflux of time.
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6.6. As stated above the Forest Clearance granted by the Central
Government was to expire on 02/10/2011 (09/11/20.0 as per
condition no 2(c)), the User Agency submitted a proposal for forest
clearance to the DCF Kolhapur for seeking further renewal.
6.7. In the meantime, the User Agency submitted proposal for
transport of already mined Bauxite material lying in forest area at
Kasarsada Bauxite Mine. However, this office vide letter dated
7/4/2012 recommended the State Government to reject the request of
the User Agency on the grounds that the same shall be detrimental to
the environment. Based on the said recommendations, the State
Government vide letter dated 09/10/2012 rejected the request of the
User Agency to lift and transport the mined material.
6.8. Aggrieved by the above stated decision of the State Government,
the User Agency preferred an Appeal before Hon'ble National Green
Tribunal. The said Appeal came to be dismissed by the Hon'ble
Tribunal vide their order dated 28/02/2013.
6.9. The User Agency preferred an Appeal against the above said order
of the National Green Tribunal before Hon'ble Supreme Court.
However, subsequently it sought the permission of Supreme Court to
withdraw the said Appeal with liberty to approach the appropriate
Court for appropriate relief. Hon'ble Supreme Court disposed of the
said Appeal as withdrawn with liberty to the User Agency to approach
the L appropriate Court for appropriate relief. The User Agency has
filed a Writ Petition No.4125/2015 before Hon'ble Bombay High Court.
The matter is still sub-judice.
6.10. In the meantime, an Ordinance was issued for amending certain
provisions of the Mines and Minerals (Development and Regulation)
1957 (hereinafter referred to as the MMDR Act). It is pertinent to
mention that the said Ordinance has now culminated into the MMDR
(Amendment) Act, 2015, which has come into force w.e.f.
12/01/2015. The relevant provisions under the newly inserted section
8-A are reproduced as under.
8A. Period of grant of a mining lease for minerals other than coal,
lignite and atomic minerals. - (1) The provisions of this section
shall apply to minerals other than those specified in Part A and
Part B of the First Schedule.
(2) On and from the date of the commencement of the Mines and
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Minerals (Development and Regulation) (Amendment) Act, 2015
(10 of 2015), all mining leases shall be granted for the period of
fifty years.
(3) All mining leases granted before the commencement of the
Mines and Minerals (Development and Regulation) (Amendment)
Act, 2015 (10 of 2015) shall be deemed to have been granted for
a period of five years.
(4) On the expiry of the lease period, the lease shall be put up for
auction as per the procedure specified in this Act. (5)
Notwithstanding anything contained in sub-section: (2), (3) and
sub-section (4).
the period of lease granted before the date of commencement of
the Mines and Minerals (Development and Regulation)
(Amendment) Act, 2015 (10 of 2015), where mineral is used for
captive purpose, shall be extended and be deemed to have been
extended up to a period ending on the 31 March, 2030 with effect
from 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.
(6)…………….
(7)…………….
(8)…………….
(9) The provisions of this section, notwithstanding anything
contained therein shall not apply to a mining lease granted before
the date of commencement of Mines and Minerals (Development
and Regulation) (Amendment) Act, 2015, for which renewal has
been rejected, or which has been determined, or lapsed.
6.11. Following the above said amendments made in the MMDR Act
(through Ordinance), the Ministry of Environment and Forest &
Climate Change issued two guidelines dated 1 April, 2015 and 1" May,
2015, the relevant text of the same are reproduced as under.
Guidelines dated 1" April, 2015
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In case of existing mining leases in respect of minerals specified in
sub-section (1) of section 8A of the MMDR Act, 1957, as inserted
by the Mines and Minerals (Development and Regulation)
Amendment Ordinance, 2015. period of validity of approvals
accorded under Section-2 of the FC Act shall be extended, and
shall he deemed to have been extended upto a period co-terminus
with the period of mining lease in accordance with the provisions
of the MMDR Act, 1957, as amended, subject to the following
conditions:
(i) The State Government shall, within a period of two years from
the date of issue of this letter, realize from the user agency, Net
Present Value (NPV) of the forest land for which period of validity
of approval under the FC Act has been extended, in case the same
has not already been realized, and transfer the same to the ad-hod
Compensatory Afforestation Fund Management and Planning
Authority (CAMPA).
(ii) In case NPV of forest land for which period of validity of
approval under the FC Act has been extended by this letter has
not already been realised and the State Government fails to
realize the same from the user agency within a period of two
years from the date of issue of this letter, approval accorded under
the FC Act for such forest land shall be kept in abeyance, and shall
be deemed to have been kept in abeyance, till such time, the NIV
of such forest land is realised by the State Government.
(iii) Provisions of this, notwithstanding anything contained
therein, shall not apply to forest land falling in a mining lease for
which renewal has been rejected, or which has been determined
or lapsed before the issue of this Letter.
Guidelines dated 1" May, 2015
(1) Proposals seeking prior approval of Central Government under
the FC Act for renewal, in accordance with the provisions of the
MMDR Act, 1957 prior to its amendment by promulgation of the
afore-mentioned Ordinance, of mining leases to which provisions
of the afore-mentioned guidelines dated 1" April, 2015 extends,
shall be closed, in case prior approval of Central Government
under the FC Act for the entire forest land indicated in such
proposal has already been obtained during the original lease
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period or previous renewal(s) of the mining lease.
(ii) However, in case during the validity of the original lease or
previous renewal prior approval of Central Government under the
FC Act for a part of the forest land indicated in such proposal has
only been obtained, such proposals shall be processed for such
reduced area of forest land for which approval under the FC Act
during the original lease period or previous renewal(s) has not
been obtained.
6.12. User Agency has now argued that in light of section 8 A of the
MMDR (Amendment) Act, 2015 and the above stated guidelines issued
by the Ministry of Environment and Forest & Climate Change, the
validity of approval granted by the Central Government vide letter
dated 3/10/2001, which under normal circumstances stood expired on
2/10/2011 (9/11/2010) stands extended and shall be deemed to have
been extended upto a period co-terminus with the period of mining
lease i.e. upto 31/03/2030.
6.13. In support of its claim, the User Agency has furnished and Order
dated 10/11/2017 issued by the Director, Directorate of Geology and
Mining, Government 1 of Maharashtra, which mentions the extension
for the period 21/05/2018 to 31/03/2030 (Probably on the
assumption that the renewal granted vide order dated 13/02/2008
was valid till 21/05/2018). The User Agency has also furnished the
copy of execution of the renewed lease for the period 21/05/2018 to
31/03/2030. The User Agency has further argued that in light of
guidelines dated 1" May 2015 issued by the ministry, the proposals
seeking prior approval of Central Government under the FC Act for
renewal stands closed and therefore there is no need of seeking fresh
approval of renewal of FC clearance.
7. In light of the fact mentioned above the comments of this office are
as under.
7.1. At the outset, it may be pointed out that the order of renewal of
mining lease dated 13/02/2008, as relied upon by the User Agency
clearly mentions the renewal period as "period of 10 years from the
date 22/05/1998" in respect of 207.20 ha. area. Subsequently vide
Corrigendum dated 22/05/2008, the said area was amended to the
extent of 106.76 ha. It is worth to mention at this point that as per the
above said documents, the mining lease existed till 21/05/2008 and
thereafter it stood lapsed by virtue of efflux of time.
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7.2. The User Agency has relied on sub-section 5 of section 8 A of the
MMDR (Amendment) Act, 2015. However, sub-section (9) of the said
section stipulates that notwithstanding anything contained in section
SA, the provisions of that section shall not apply to a mining lease for
which the renewal has been lapsed. Thus, the amended provisions of
the MMDR Act are in no way applicable in the present case for the
simple reason the mining lease granted vide order dated 13/02/2008,
stood lapsed on 21/05/2008. Needless to mention that the Ministry of
Environment and Forest & Climate Change guidelines dated
21/04/2015 also mention in clear term that the provisions contained
therein shall not be applicable to forest land falling is a mining lease
which stood lapsed before the issue of such guidelines.
7.3. It is not clear that despite the mention of 10 years period from the
date of 22/05/1998 in the original order of renewal, how the mining
lease executed on 25/09/1998 is claimed by the User Agency to have
been valid up to 24/09/2018. It is pertinent to mention that the copy
of the mining lease executed on 05/01/2018 in accordance to the
amended Act, clearly shows the period from 21/05/2018 to
21/05/2030. The said period is absolute consonance with the period
shown in the order dated 10/11/2017 issued by the Director,
Directorate of Geology and Mining. Contrary to that, the period
specified in the execution deed dated 25/09/2008 is not at all in
conformity with the period mentioned in the order dated 13/02/2008.
Thus, the claim of User Agency that the renewal of mining lease
granted vide Government of Maharashtra order dated 13/02/2008
was legal and valid at the time of commencement MMDR
(Amendment) Act, 2015 appears to be absolutely misleading. In fact, it
stood lapsed on 21/05/2008 itself.
7.4. Coming to the argument of the User Agency that in light of the
guidelines dated 1 April 2015 and 1 May 2015 issued by the Ministry
of Environment and Forest & Climate Change allow the extension of
FC clearance co-terminus with the period allowable under the MMDR
Act, it is reiterated that the said guidelines are not applicable for
mining leases which stood lapsed before the issuance of guidelines. It
is further submitted that permitting diversion of forest land under FC
Act is the matter of absolute discretion of the State Government. The
role of the Central Government is limited to the extent that if at all,
the State Government intends to divert forest land, it shall submit the
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proposal to the Central Government which shall decide as to whether
or not the prior approval sought by the State Government is to be
granted. This office, on various occasions has taken a clear stand that
allowing the mining and allied activities any further in the said area
shall bound to result in deterioration of environment and forests.
Thereafter some stand has been taken by the State Government in the
Appeal no.64/12 filed by the User Agency before Hon'ble National
Green Tribunal. The State Government has further reiterated the same
stand before Hon'ble High Court in Writ Petition 125/15 tiled by the
User Agency, Thus, it may be seen that the authorities in Forest
Department as well as the State Government are in no way inclined to
divert forest land in question beyond the period granted in the FC
clearance dated 03/10/2001.
7.5. The guidelines dated 1 April 2015 and 1" May 2015 issued by the
Ministry of Environment end Forest & Climate Change are meant to
facilitate the cases of mining for the further extended period in
accordance with the provisions contained in the MMDR Act. only when
State Government is inclined to divert the forest land for mining
purposes. By no stretch of imagination, the said guidelines put the
State Government under any legal compulsion to allow diversion of
forest land for mining purposes against its wishes. This has also been
clarified by the Apex Court (9 SCC 753) in State of Kerala and others
Vs. Sunil Kumar and others (2006), which has been cited by the
Hon'ble National Green Tribunal in their judgment dated 28/02/2013.
The same is reproduced as under-
The question of approval arises only when the State Government
makes a request for such approval in respect of cases falling
under the enumerated categories in Section 3. A bare perusal of
Section of the Act makes the position clear that it has no
application when the State Government does not intend to do
any of the enumerated acts. The section starts with a
nonobstante clause. It deals with restriction on dereservation of
forests or use of forest land for non-forest purpose. It provides in
positive terms that no order in respect of the enumerated actions
can be made except with prior approval of the Central
Government. It does not even remotely suggest that even when
the State Government does not want to take action it shall yet to
be required to seek prior approval.
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7.6. In the present case, as stated above, the renewal of mining lease
granted vide order dated 13/02/2008 stood lapsed on 21/05/2008.
Even if the argument of the User Agency is conceded that the said
mining lease was valid till 24/09/2018, it is submitted that order
dated 13/02/2008 clearly stipulates that the lessee should submit
before execution of mining lease, the necessary clearance certificate
from the competent authority wherever necessary under the relevant
acts/rules including the FC Act 1980 and Environment Protection Act,
1986, Environment Impact Assessment Notification, 1994 and its
subsequent amendments. Needless to mention that the forest clearance
was valid upto only 02/10/2011 (09/11/2010) and in absence of
further fresh FC clearance thereafter, the renewal lease relied upon by
the User Agency stood lapsed w.e.f. 03/10/2011. Thus, by virtue of
sub-section 9 of section 8A of MMDR (Amendment) Act, 2015, the
question of deemed extension to the mining lease does not arise at all.
Interestingly, the issue of renewal order dated 13/02/2008. and its
validity period and other relevant facts have conveniently not
mentioned by the User Agency in the chronology of events annexed in
their representation.
7.7. Moreso, the draft Notification in respect of Eco Sensitive Area in
Western Ghat issued by Ministry of Environment and Forest & Climate
Change on 03/10/2018, the following provision has been mentioned
in respect of mining. There shall be complete ban on mining query and
sand mining in ecological sensitive area and all existing mines shall be
phased out within 5 years from the date of issue of final Notification or
on the expiry of existing mining lease whichever is earlier.
The area in question is included in the said notification, which
makes clear in absolute term that the said area comprises of fragile
eco-system. For the said reason, it would not be prudent to allow the
further mining activities therein. It is worth to mention that the Forest
Clearance granted vide Government of India letter dated 3/10/2001,
itself mentions that about 80% of the mineral had already been mined
at the time of the said clearance. Thereafter the mining operation were
permitted for further 10 years. Now permitting further mining in the
said area which is included in the Eco Sensitive Area, would amount to
mindless exploitation of resources from an ecologically fragile area.
8. To summarize the matter -
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8.1. Section 8-A (5) of the MMDR Amendment Act 20'5 is not
applicable in the present case as it is hit by sub-section (9) because the
mining lease relied upon by the User Agency stood lapsed on
21/05/2008 itself.
8.2. For the reason stated above, the guidelines dated 1/4/2015 relied
upon by the User Agency are also not applicable.
8.3. Government of India may be requested to make available the copy
of its reply filed before Hon'ble High Court as Respondent NO.7 in Writ
Petition No.4125/2015.
8.4. As the Forest Conservation clearance dated 3/10/2001 clearly
states that about 80% of the area had already mined at that point only,
it would not be appropriate to consider the request of the User Agency
for allowing further mining.
8.5. Taking into consideration the provision in Draft Eco-Sensitive Area
Notification, allowing any further mining will amount to wanton
destruction of fragile eco-system.
8.6. The State Government is under no legal compulsion to divert
forest land at the cost of damage to the forests and environment.
8.7. As an abundant precaution the concerned Authorities may also be
advised to review the order dated 10/11/2017 extending the mining
lease from 21/05/2018 to 31/03/2030.
9. The comments may kindly be submitted to the Government of
India.”
39) Based on the aforesaid letter the Government of India vide Order
dated 27th March 2019 closed the Petitioner No.1’s proposal for extension of
validity of forest clearance to make it co-terminus with the provisions of
MMDR Amendment Act, 2015.
40) In our opinion, it is apparent that the Order dated 27 th March
2019 is substantially based on the report dated 15 th February 2019 which is
referred to in the letter dated 20 th February 2019. The report dated 15 th
February 2019 which is relied upon only refers to the recommendations to the
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Principal Secretary (Forest), Government of Maharashtra. Surprisingly the
recommendation of Deputy Forest Conservator dated 9 th March 2016, letter
dated 22nd March 2016 of the Chief Conservator of Forest and the report dated
18th May 2016 have not been referred or considered. We have noted that, the
letter dated 15th February 2019 of the Additional Principal Chief Conservator
Forest and Nodal Officer proceeds on an erroneous presumption that the
forest department and the State Government is not inclined to divert forest
land beyond the period granted in the FC Approval dated 3 rd October 2001.
The impugned Order dated 27th March 2019, thus proceeds on a wrong
assumption and does not consider the various favourable recommendations.
41) It would also be pertinent to note here that, the forest clearance
was granted for a period of 10 years on the basis and for the reason that, 80%
of the mining was already undertaken. The Petitioner No. 1’s mining lease was
admittedly for captive purposes/own industry purpose. The application by the
Petitioner for the renewal of its mining lease was at all times made within the
time limits prescribed under the Rule 24A of the MC Rules, 1960. In our view,
the Petitioner No. 1 was entitled to an extension of mining lease under Rule
24B for a period of 20 years. The said position and interpretation of Rule 24B
of the MC Rules, 1960 is not disputed by the learned counsel for the
Respondent No.1/Union of India. In fact, during the arguments, it was the
specific case of Respondent No. 1 that, the Petitioner No. 1’s mining lease was
for captive use/own industry purposes and was covered only under Rule 24B
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of the MC Rules, 1960. We are of the opinion that, when the direction of the
MoEFCC dated 1st April 2015 and 1st May 2015 are considered along with the
extension application for forest clearance dated 30 th March 2010 for 34.43
hectare area out of 106.76 hectare area and read along with Rule 24B of the
MC Rules, 1960 it would be clear that, the Petitioner’s mining lease was ought
to have been granted for a period of 20 years from 22nd May 1998.
42) A perusal of the letter dated 23 rd October 2017 would make it
clear that, the proposal of the Petitioner was returned to the State
Government as it was found that, the State Government did not furnish the
proposal within time and as per guideline dated 1 st April 2015. The State
Government had not realise NPV from Petitioner No.1. In respect of the
realization of NPV it would necessary to refer to direction 1 st April 2015 issued
by the MoEFCC. Under the said direction it was upon the State Government
within a period of 2 years to realise the NPV, from the Petitioner No. 1. To
realize the NPV the concerned authority under Rule 8(1)(b) of the Forest
Conservation Rules, 2003 is required to prepare a demand note and
communicate the same to the Petitioner No. 1. The record indicates that,
though Petitioner No.1 had on two occasions written to the MoEFCC by letters
dated 10th October 2017 and 10th May 2018 requesting for realization of the
NPV, the State Government has not raised any such demand note. Perusal of
the said letter would indicate that the Petitioner at all time being ready and
willing to deposit the NPV. Record indicates that, it was only after impugned
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Order dated 27th March 2019 was passed that on 9 th April 2019 the Chief
Conservator Forest directed Petitioner No.1 to deposit the NPV in compliance
of MoEFCC directions dated 1st April 2015. Perusal of the said letter indicates
that, even vide the said demand the State Government failed to quantify the
amount. This would indicate that, the Petitioner No. 1 was at all time
following up with the concerned Authority for the payment of the NPV. We
have also noted that, the State Government has taken no steps to challenge or
cancel the lease deed as executed by and between the State Government and
Petitioner No.1. Further, even after the Impugned Order dated 27 th March
2019 a demand of NPV was made vide letter dated 9th April 2019.
43) As regards the issue of maintainability of this Writ Petition, it is
the contention of Respondent No.1 that, in view of Section 14 and 16 of the
NGT Act this Court would lack jurisdiction to entertain the petition. Section
14 of the NGT Act reads as under: -
“14. Tribunal to settle disputes. — (1) The Tribunal shall have the
jurisdiction over all civil cases where a substantial question relating
to environment (including enforcement of any legal right relating to
environment), is involved and such question arises out of the
implementation of the enactments specified in Schedule I.
(2) The Tribunal shall hear the disputes arising from the questions
referred to in sub-section (1) and settle such disputes and pass
order thereon.
(3) No application for adjudication of dispute under this section
shall be entertained by the Tribunal unless it is made within a
period of six months from the date on which the cause of action for
such dispute first arose:
Provided that the Tribunal may, if it is satisfied that the applicant
was prevented by sufficient cause from filing the application within
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the said period, allow it to be filed within a further period not
exceeding sixty days.”
44) Section 16 of the NGT Act reads as under: -
“16. Tribunal to have appellate jurisdiction. —Any person aggrieved
by, —(a) an order or decision, made, on or after the
commencement of the National Green Tribunal Act, 2010, by the
appellate authority under section 28 of the Water (Prevention and
Control of Pollution) Act, 1974 (6 of 1974);
(b) an order passed, on or after the commencement of the National
Green Tribunal Act, 2010, by the State Government under section
29 of the Water (Prevention and Control of Pollution) Act, 1974 (6
of 1974);
(c) directions issued, on or after the commencement of the National
Green Tribunal Act, 2010, by a Board, under section 33A of the
Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(d) an order or decision made, on or after the commencement of
the National Green Tribunal Act, 2010, by the appellate authority
under section 13 of the Water (Prevention and Control of Pollution)
Cess Act, 1977 (36 of 1977); 11
(e) an order or decision made, on or after the commencement of
the National Green Tribunal Act, 2010, by the State Government or
other authority under section 2 of the Forest (Conservation) Act,
1980 (69 of 1980);
(f) an order or decision, made, on or after the commencement of
the National Green Tribunal Act, 2010, by the Appellate Authority
under section 31 of the Air (Prevention and Control of Pollution)
Act, 1981 (14 of 1981);
(g) any direction issued, on or after the commencement of the
National Green Tribunal Act, 2010, under section 5 of the
Environment (Protection) Act, 1986 (29 of 1986);
(h) an order made, on or after the commencement of the National
Green Tribunal Act, 2010, granting environmental clearance in the
area in which any industries, operations or processes or class of
industries, operations and processes shall not be carried out or shall
be carried out subject to certain safeguards under the Environment
(Protection) Act, 1986 (29 of 1986);
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(i) an order made, on or after the commencement of the National
Green Tribunal Act, 2010, refusing to grant environmental
clearance for carrying out any activity or operation or process under
the Environment (Protection) Act, 1986 (29 of 1986);
(j) any determination of benefit sharing or order made, on or after
the commencement of the National Green Tribunal Act, 2010, by
the National Biodiversity Authority or a State Biodiversity Board
under the provisions of the Biological Diversity Act, 2002 (18 of
2003), may, within a period of thirty days from the date on which
the order or decision or direction or determination is
communicated to him, prefer an appeal to the Tribunal:
Provided that the Tribunal may, if it is satisfied that the appellant
was prevented by sufficient cause from filing the appeal within the
said period, allow it to be filed under this section within a further
period not exceeding sixty days.”
45) It is the contention of the Petitioner No. 1 that, no objection in
respect of maintainability was raised by Respondent No.1 in its reply. In the
present petition we find that the issues are regarding the closure of the
Petitioner’s application dated 30th March 2010 seeking extension of forest
clearance. The application dated 30 th March 2010 has been closed after a
period of 9 years by a non-speaking Order and without following the
principles of Natural Justice. We find that the Impugned Order is passed in the
face of favourable recommendation by the Government of Maharashtra and
without considering all the said recommendations in their totality. There is no
application of mind to the recommendations. In fact, the Impugned Order
relies on the letter dated 15 th February 2019 of the Additional Principal Chief
Conservator Forest which itself proceeds on an incorrect premises that the
State Government opposed the grant of lease etc. This in our view totally
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erroneous approach. The order dated 27 th March 2019 adversely affects the
rights of the Petitioner No.1. We find that, the applicability of Rule 24B of the
MC Rules, 1960 is not even referred to or discussed. The closure of the
application appears to be contrary to and in complete disregard to the
MoEFCC directions by letters dated 1st April 2015 and 1st May 2015.
46) In this regard the observations of the Hon’ble Supreme Court in
the case of Whirlpool Corpn. v. Registrar of Trade Marks, (Supra) and Shri.
Gangadhar Narsingdas Agrawal v. MoEF & Ors, (Supra) are useful wherein it
is observed that, this Court while exercising the power under Article 226 of
Constitution of India has discretion to entertain or not to entertain the Writ
Petition on the ground of an alternative remedy. The ground of alternative
remedy would not operate as a bar at least in 3 contingencies namely wherein
the petition has been filed for enforcing a fundamental right or where there
has been violation of principal of natural justice or where order of proceedings
is wholly without jurisdiction or the vires of the act is challenge. In the present
case, we find that there is no reason given for the closure. The letter dated
15th February 2019 on which reliance is placed has misconstrued. The
impugned Order is a non-speaking Order and passed in violation of the
Principles of Natural Justice. The order is passed after a period of 9 years. We
also find that, the State Government has acted in an arbitrary and high
handed manner. No notice as required under the rules was given to the
Petitioner No. 1 when possession of the site and Bauxite dump was taken. The
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State Government has not complied with the terms of the lease deed and
clause 5, 6, 7 of Form-K. It is well settled that, the rule of exhausting the
statutory remedy is rule of policy, convenience and discretion rather than rule
of law. Whether the alternative remedy would bar the court from entertaining
the cause under writ jurisdiction would depend on the facts of each case. We
find that, in the peculiar facts of the present case the Petitioner No. 1 has
made out a case which warrants interference. We have noted the fact that the
present petition is pending before this court since the year 2019 i.e. pending
since the past 6 years. Considering the nature of the directions, we propose to
entertain the present petition, as we find that, in the peculiar facts and
circumstances of the present case, it would be unjust and unfair to relegate
Petitioner No. 1 to the alternate remedy.
47) The Respondent No.1 have also argued that, the present writ
petition is barred by the principle of res-judicata as the Petitioner had
approached NGT in the year 2012 vide Appeal No. 64 of 2012 challenging the
Order dated 9th October 2012 passed by the State Government rejecting the
application for lifting the mined-out minerals/Bauxite dump lying at the site.
NGT had disposed the Appeal vide order dated 28 th February 2013. The
Respondent No. 1 argued that, by the present petition the Petitioner No. 1 has
indirectly sought the same relief. We find that, the issue involved in the
present Writ Petition is in respect of the challenge to the Order 27 th March
2019. After the order of NGT dated 28th February 2013 various subsequent
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events have occurred which are required to be taken into consideration. Such
events are i) Section 8A was inserted in the MMDR Act on 12 th January 2015.
ii) Petitioner No. 1 had withdrawn the Civil Appeal No. 4068 of 2013 from the
Hon’ble Supreme Court challenging the Order of the NGT dated 28 th February
2013 on the same day i.e. 12th January 2015 and sought liberty from the
Hon’ble Supreme Court to approach the appropriate court for appropriate
reliefs. In view of the said Order, we are of the opinion that it cannot be said
that, the present petition is barred by the principle of res-judicata. The
principal prayers were different and distinct. Further, the MoEFCC guidelines
dated 1st April 2015 and 1st May 2015 are also subsequent to the Order of the
NGT dated 28th February 2013 and the Order of Hon’ble Supreme Court 12 th
January 2015 permitting the withdrawal of the civil appeal. In view of the
aforestated facts we are of the considered opinion that, the petition is
maintainable and not barred by principle of res- judicata.
48) The next submission of Respondent No. 1 was that the present
mining area falls within Eco-sensitive zone and area. The record indicates
that, the Kasarsada mining lease is at a 34 km aerial distance from the
boundary of the Radhanagari wildlife Sanctuary. The said fact evidently
recorded in the Inspection Report annexed to the letter dated 9 th March 2016
issued by the office of the Chief Forest Conservator (Regional) Kolhapur. We
find no reason to doubt the said facts. As per Section 3(2)(v) of the
Environment (Protection) Act, 1986 and National Wildlife Action Plan (2002-
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2016) of the MoEFCC an Eco-sensitive Zone is besides an area which falls
within maximum 10 km from the boundary of the wildlife Sanctuary. A
reference was made to the draft notification published on 31 st July 2024 for
declaration of Eco-Sensitive Area. Perusal of the said notification would
indicate that, though some region falls in the Kasarsada mining lease area
such notification is still in a draft form. We have noted that, paragraph 3 of
the draft notification categorically states that existing mines would be phased
out in 5 years after the final publication of the notification. In this regard, we
find it useful to refer to the Inspection Report of the Chief Conservator of
Forest, Kolhapur dated 22nd March 2016 wherein the following observations
are made: -
(1) The area is already broken due to bauxite mining operation.
(2) No fresh construction is required as necessary infrastructure is
already available at the site.
(3) The proposed area is already diverted for mining and the
mining operations have been carried out till 2nd October 2011.
The project proponent has already obtained Environmental
Clearance under Environment Protection Act 1986 and Forest
Clearance under Section 2 of the Forest Conservation Act 1980. All
plateaus are used by wild animals during the rainy season. In this
case it is already dug out. Along the edges around 7.5 M width of
patch was not dug to prevent soil erosion. During the discussions
the company has agreed to provide few horizontal holes in the
underdog wall area for cross ventilation, so that wind flow will
remain in the area making it useful for wild animals during the
rainy season. This will be a good mitigation measure to maintain
the natural conditions after the closure of the mine. Then it will be
useful to wildlife after the mitigation measure.
(4) During site inspection it was observed that the area has
been already occupied by overburden removed and bauxite dumps.
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Langurs were observed during the site visit, droppings of wild pig,
porcupine, bear, gaur, sambar and leopard were observed. There
are two rainwater harvesting ponds in the mines. Since it was
visited in the march month, we could not find any ephemeral
vegetation in the area.
(5) The nearest sanctuary is the Radhanagari Wildlife
Sanctuary around 34 kilometers from site.
(6) The area has already been diverted for mining purpose and
mining activity has been carried out. There will be temporary
disturbance to the wildlife while carrying out mining in the
remaining area. Since it was mined in the area, it is recommended
to take up mitigation measures like development of meadows to
restore the area for the wildlife habitat purpose.
(7) As mentioned above, the area is already diverted for
mining purposes and bauxite mining operations work continued up
to 2nd October 2011. In the area no fresh tree cutting is involved.
49) We have also noted that, the present case is not a case of fresh
mining lease but a case dealing with an existing mining lease where necessary
infrastructure including roads have been in existence since early 1970. No
fresh diversion of forest land has been sought in fact the application for
extension at all times has shown a reduction in the area of forest land in
respect of which permissions were sought.
50) The importance of preserving the environment while ensuring
balanced and sustainable development has been emphasized by the Hon’ble
Supreme Court in several judgments.
50.1) The Hon’ble Supreme Court in the case of T.N. Godavarman
Thirumulpad (87) v. Union of India, reported in (2006) 1 SCC 1 has observed
that: -
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“Y.K. SABHARWAL, J.— Natural resources are the assets of the entire
nation. It is the obligation of all concerned, including the Union
Government and State Governments to conserve and not waste
these resources. Article 48-A of the Constitution requires that the
State shall endeavour to protect and improve the environment and
to safeguard the forest and wildlife of the country. Under Article
51-A, it is the duty of every citizen to protect and improve the
natural environment including forests, lakes, rivers and wildlife
and to have compassion for living creatures.
3. Forests are a vital component to sustain the life support system
on the earth. Forests in India have been dwindling over the years
for a number of reasons, one of it being the need to use forest area
for development activities including economic development.
Undoubtedly, in any nation development is also necessary but it
has to be consistent with protection of environments and not at the
cost of degradation of environments. Any programme, policy or
vision for overall development has to evolve a systemic approach so
as to balance economic development and environmental
protection. Both have to go hand in hand. In the ultimate analysis,
economic development at the cost of degradation of environments
and depletion of forest cover would not be long-lasting. Such
development would be counterproductive. Therefore, there is an
absolute need to take all precautionary measures when forest lands
are sought to be directed for non-forest use.
71. The basic objectives leading to the laying down of the National
Forest Policy, 1988 may also be noted and also the need and
requirement for its enforcement. This policy was framed on
realising that the 1952 Forest Policy for the management of State
Forest in the country had not halted the depletion of forests. It was,
therefore, considered necessary to evolve a fresh policy for the
future to lay down new strategies of forest conservation which had
become imperative. Conservation includes preservation,
maintenance, sustainable utilisation, restoration and enhancement
of the natural environment. The principal aim of the Forest Policy is
to ensure environmental stability and maintenance of ecological
balance including atmospheric equilibrium which are vital for
sustenance of all life forms, human, animal and plant. The
derivation of direct economic benefit must be subordinated to this
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principal aim.
77. The shift in the approach of the legislation is evident from the
FC Act of 1980 when compared with the scheme underlying the
Forest Act, 1927 which was State-oriented for conserving the Forest
Policy of 1952. Further, in 1977, forest and wildlife were taken out
from the State List and incorporated in the Concurrent List.
Considering the compulsions of the States and large depletion of
forest, these legislative measures have shifted the responsibility
from States to the Centre. Moreover, any threat to the ecology can
lead to violation of the right of enjoyment of healthy life
guaranteed under Article 21, which is required to be protected. The
Constitution enjoins upon this Court a duty to protect the
environment.”
50.2) The Hon’ble Supreme Court in the case of Lafarge Umiam Mining
(P) Ltd. v. Union of India, reported in (2011) 7 SCC 338 has observed that:-
“Findings
(a) Legal position
75. Universal human dependence on the use of environmental
resources for the most basic needs renders it impossible to refrain
from altering the environment. As a result, environmental conflicts
are ineradicable and environmental protection is always a matter
of degree, inescapably requiring choices as to the appropriate level
of environmental protection and the risks which are to be
regulated. This aspect is recognised by the concept of “sustainable
development”. It is equally well settled by the decision of this Court
in Narmada Bachao Andolan v. Union of India [(2000) 10 SCC
664] that environment has different facets and care of the
environment is an ongoing process. These concepts rule out the
formulation of an across-the-board principle as it would depend on
the facts of each case whether diversion in a given case should be
permitted or not, barring “no go” areas (whose identification
would again depend on undertaking of a due diligence exercise). In
such cases, the margin of appreciation doctrine would apply.
76. Making these choices necessitates decisions, not only about
how risks should be regulated, how much protection is enough,
and whether ends served by environmental protection could be
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pursued more effectively by diverting resources to other uses. Since
the nature and degree of environmental risk posed by different
activities varies, the implementation of environmental rights and
duties requires proper decision-making based on informed reasons
about the ends which may ultimately be pursued, as much as about
the means for attaining them. Setting the standards of
environmental protection involves mediating conflicting visions of
what is of value in human life.
(d) Summary
119. The time has come for us to apply the constitutional “doctrine
of proportionality” to the matters concerning environment as a part
of the process of judicial review in contradistinction to merit
review. It cannot be gainsaid that utilisation of the environment
and its natural resources has to be in a way that is consistent with
principles of sustainable development and intergenerational equity,
but balancing of these equities may entail policy choices. In the
circumstances, barring exceptions, decisions relating to utilisation
of natural resources have to be tested on the anvil of the well-
recognised principles of judicial review. Have all the relevant
factors been taken into account? Have any extraneous factors
influenced the decision? Is the decision strictly in accordance with
the legislative policy underlying the law (if any) that governs the
field? Is the decision consistent with the principles of sustainable
development in the sense that has the decision-maker taken into
account the said principle and, on the basis of relevant
considerations, arrived at a balanced decision? Thus, the Court
should review the decision-making process to ensure that the
decision of MoEF is fair and fully informed, based on the correct
principles, and free from any bias or restraint. Once this is ensured,
then the doctrine of “margin of appreciation” in favour of the
decision-maker would come into play. Our above view is further
strengthened by the decision of the Court of Appeal in R. v. Chester
City Council [(2011) 1 All ER 476] reported in All ER paras 14 to
16.”
51) We are of the view that, it is extremely crucial and important that
proper and effective steps are at all times taken to protect, preserve and
safeguard the environment, including the natural resources, flora and fauna,
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for the present as well as the future generations to come. Natural resources
are assets of the country, and it is obligatory on the Government to conserve
and protect the said natural resources. Article 48A of the Constitution of India
provides that the State shall make endeavor to protect and improve the
environment and to protect and preserve the forest and wild life of the
country. Article 51A enjoins a duty on the citizens to protect, safeguard and
improve the environment. Preserving and safeguarding forests is one of the
most vital and crucial aspects of preserving and nurturing the environment.
The principal aim of the laws relating to the environment is to maintain
environmental stability through preservation and/or restoration.
52) We are of the opinion that, at the same time, it is also necessary
to keep in mind the need of development. It is the need of the hour to ensure
that there is a measured use of natural resources so that the ecology and the
environment are not adversely or irreversibly affected due to development
which is not monitored or unauthorized. A balanced approach and balanced
development are necessary for further economic development of the society.
The balance between preserving and safeguarding environment and
development is required to be maintained for the benefit and well-being of the
present and also the future generations. It is of crucial importance and
necessary that all development is at all times consistent with the
environmental laws and not in derogation thereof. A wholesome and
systematic approach is required and is the need of the hour so as to ensure
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that the environment is preserved and development take place. Economic
development and environmental development though of equal importance, in
the overall balancing act it is necessary that the scales are balanced and
sometimes consciously tilted in favour of the environment keeping in mind
future needs and requirements of the future environment and the generations.
53) We are well aware of the fact that, a renewal of mining is not a
matter of right of the agency and can only be granted with the permission of
the Central Government under Section 2 of the FC Act. It through section 2 of
the FC Act Government performs its duty to monitor the case and protect the
natural resources and ensure that circumstances conducive to the
development and protection of natural resources are nurtured. While doing so
it is necessary that the authorities taken into consideration all relevant factors.
54) In essence, the utilisation of natural resources has to be consistent
with the environmental policy and should not be harmful or detrimental to
the efforts made to protect and preserve the environment, including the
forest. Balancing these requirements is a matter of policy. No doubt, the
paramount object is to protect and preserve the environment, but while doing
so, it would also be necessary for the concerned authority/Government to take
decisions considering the ground realities and factual background. The
decision is required to be reasoned and balanced, and the same should be
evident on a plain reading of the decision. The decisions are also required to
be reasoned and taken after considering the factual position, the need to
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protect the environment, and balancing the rights created under the mining
lease agreements.
55) We have noted that, in the present case, it is not the case of any
of the parties that the Petitioner No. 1 has indulged in any act of illegal
mining. All mining activities which were carried out till 2 nd October 2011 were
under valid mining leases or permissions granted by the concerned
authority/Government. The mined-out mineral which is lying at the site, i.e.,
bauxite dump, has been extracted under a valid mining lease/permission and
only after the required forest clearance/approval issued under Section 2 of the
Forest Act. We have noted that the said extracted material is lying at the site
since 3rd October 2011 i.e. for the past 15 years. We note that, the concerned
authorities have not taken into consideration the adverse environmental and
ecological impact the said Bauxite dump would have had on the environment,
forest, flora, fauna and wild life. It is common knowledge that Bauxite does
not support normal plant growth and vegetation. The mined-out Bauxite is
lying at the site and in the forest, untreated for the past 15 years. No steps
have been taken to treat or deal with the same so as to best suit the
environment and ensure that no damage is caused to the environment.
Further, the Petitioner No. 1 would have incurred substantial cost and effort in
having the material extracted. As noted earlier, this is not a case of illegal
mining. The record would also indicate that the required infrastructure is
already constructed by the Petitioner No.1/made available. The only question
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which would remain is the entitlement to the mined-out material and the
right to take the mined-out material. There are questions which are required
to be decided by the concerned authority/Governments but after considering
the entire facts of the case, the available material and all reports.
56) We find that the Impugned Order dated 27 th March 2019 is based
on and relies upon the letter dated 15 th February 2019 of the Additional
Principal Chief Conservator Forests and Nodal Officer. As noted herein before
the said letter dated 15th February 2019 does not refer to or consider the
various recommendation of the State Government dated 9 th March 2016, 23rd
March 2016, 18th May 2016, 7th February 2017 and 23rd October 2017. The
communication dated 27th April 2017 and 22nd June 2017 have not been taken
into consideration. The Impugned Order proceeds on the erroneous basis that
the State Government was not inclined to divert the forest land beyond the
Forest Approval dated 3rd October 2011. We are of the opinion that, the
favourable recommendations ought to have been considered and taken into
account. We have also noted that, the application for extension of FC approval
dated 30th March 2010 was pending for the last 9 years. Even though, certain
queries and remedial steps were sought by the Respondent No.1 from the
State Government during this period, the State Government without notice
and in violation of the principles of natural justice took possession of the
mining area and Bauxite dump lying at the site. This is done without the
notice as is required under the law and the mining lease agreement. On 23 rd
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March 2017 the Petitioner No. 1 had recorded its submission in support of its
application for extension of mining lease till 31st March 2030.
57) On 23rd October 2017 explanation was sought from the State
Government and direction was given to obtain a proposal in form-B from the
Petitioner No. 1. An explanation was sought from the State Government for
non-submission of the proposal of renewal by the State Government in time.
We are of the opinion that the rights of Petitioner No. 1 were affected by
Order dated 27th March 2019. The Order adversely affects the Petitioner No.
1’s rights. The Order is passed in violation of Principles of Natural Justice. The
possession without notice, has been taken over when the Petitioner No.1’s
application for extension of FC Approval dated 30 th March 2010 was pending.
Further the very fact that Respondent No. 1 by letter dated 23 rd October 2017
sought an explanation from the State Government regarding the application
for extension of approval clearly indicates that the FC Approval was pending
and not rejected or lapsed or determined. These aspects have also not been
considered.
58) After the matter was closed certain clarification were required
and therefore matter was placed for hearing on 10 th July 2026, 13th July 2026,
15th July 2026 and 23rd July 2026. Pursuant to the hearing the Government of
Maharashtra has filed an Affidavit dated 22 nd July 2026 wherein it has been
specifically admitted that, notice as required under clauses 5, 6 and 7 of the
Form-K/lease agreement have not been issued. It is the stand of the State
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Government that the manager of the Petitioner No.1 was present at site when
possession was taken. Complying with the rules in respect of notice and/or
clauses of the lease deed in a completely different aspect which in our opinion
was necessary to be complied with in letter and spirit. The presence of a
manager on site cannot be equated to compliance of the requirement of notice
under the law. In short, the State Government has conceded that, when the
mining was closed on 3rd October 2011 and possession of the mining area and
Bauxite dump lying at site taken, notice under clause 7 of the lease deed
and/or clause 7 of the general provisions of the Form-K was not given. We
find that, this is again a clear violation of the principles of natural justice.
59) We are of the opinion that, considering the above aforestated
discussion the questions which are required to be considered by the
authorities are as under: -
i) Whether the mining lease allotted to the Petitioner No. 1 was in
existence as of 12th January 2015 or had been rejected, determined or
lapsed.
ii) Whether the Petitioner No. 1 admittedly being a captive user was
entitled under Section 24B of the MC Rules, 1960 for mining lease of 20
years.
iii) Whether in view of the application for first renewal of the mining
lease dated 12th May 1997 the Petitioner No. 1 in view of the provisions
Rule 24A(6) read with Rule 24B of the MC Rules, 1960 it can be held
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that Petitioner No. 1 had a valid mining lease for a period of 20 years
from 22nd May 1998.
iv) Whether considering the letter dated 23rd October 2017 of the
MoEFCC the application for extension of forest clearance dated 30 th
March 2010 was pending as on 12th January 2015, and would the
Petitioner No. 1 entitled and covered under the provisions of Section
8A(5) of the MMDR Act, read with the notifications issued by the
MoEFCC dated 1st April 2015 and 1st May 2015.
60) Considering the peculiar facts of the present matter the questions
which the Respondent No. 1 was required to consider as stated in paragraph
59 and more importantly the fact that, it is not the case of any of the
Respondents’ that, any act of illegal mining was committed by the Petitioner
No. 1 and after considering the reports/letters dated 9 th March 2016, 22nd
March 2016, 18th May 2016, 7th February 2017 and 23rd October 2017 we are
of the opinion that, in the interest of justice the following directions would
balance the equities in the present matter.
i) That, the Order dated 27th March 2019 passed by the
MoEFCC is set aside. The Respondent No.1 to reconsider the Petitioner
No. 1’s Forest Clearance Application for renewal/extension dated 30 th
March 2010 in view of the observations made in this Order and in
accordance with law.
ii) Considering the peculiar facts of the case, the Petitioner No.
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1 is permitted to file a fresh application for transportation permission
to the concerned Competent Authority/Government. The Petitioner
No. 1’s original application dated 30th March 2010 i.e. application
seeking extension of forest clearance shall be considered as pending
and an appropriate decision would be taken on the application seeking
transport permission after considering the guidelines/reports/letters
dated 1st April 2015, 1st May 2015, 9th March 2016, 23rd March 2016,
18th May 2016, 7th February 2017 27th April 2017, 22nd June 2017, 23rd
October 2017 and 15th February 2019. In case the authority requires
any further documentation/clarification or explanation, the same shall
be conveyed to the Petitioner No. 1 in writing and the Petitioner No. 1
would be obligated to comply with such directions.
iii) The concerned Competent Authority/Government shall process
the applications as expeditiously as possible and in any event within a
period of 12 weeks and forward the same to the Respondent No. 1.
The Respondent No. 1 to consider the said application in view of the
observation made by this Court in the Order and process the
application in accordance with law.
iv) We make it clear that, the aforesaid directions are made only in
respect of Bauxite dump which is already extracted and lying at the
mining site since 3rd October 2011. The directions in respect of the
application dated 30th March 2010 are restricted to the transport
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application for the mined-out minerals/Bauxite dump lying at site. The
mining activities, if any, shall be subject to and strictly in accordance
with the permission, if any, granted by the Respondent No. 1.
v) The Petitioner No. 1 is simultaneously directed to comply
with all requirements and directions issued by the concerned
authorities, in relation to the reclamation of the mined-out land and
carrying out afforestation activity and all related activities after
obtaining guidance from the State Government’s Forest Department.
Such activities including afforestation shall be undertaken using
species and varieties of plants and trees that are conducive to the flora
and fauna of the area and are suitable for the wildlife existing therein.
vi) The Petitioner No. 1, is directed to pay/deposit all statutory dues
and outstanding amount if any, or comply with all such directions
regarding payment of statutory dues. The Petitioner No. 1 is further
directed to pay all the dues, royalties, statutory dues, tax or any other
dues to the Government under the mining lease. All payments be made
within a period of 6 weeks from the receipt of such directions.
vii) In case the permission is granted by the Central Government and
State Government for transportation of the Bauxite dump the same
shall be done immediately and within time prescribed by the
authorities. The transportation shall be under the strict supervision of
the concerned Authorities and all precautions that are necessary and
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directed by the authorities shall be strictly undertaken and followed.
All charges statutory and Government dues shall be paid within a
period of 2 weeks of the receipt of the permission.
viii) In case for carrying out the activities as permitted by the
Respondent authorities, the Petitioner No. 1 is required to seek any
other permission or approval from the Central Government or State
Government or any other Statutory Authority, the Petitioner No. 1 is
under obligation to comply with the said statutory requirements.
61) It is made clear that any permission for transportation, if granted,
shall be subject to Petitioner No. 1 first making all statutory payments as
required in law and complying with all pending obligations and duties relating
to the reclamation of the mining area in accordance with the approved Mine
Closure Plan.
62) Needless to mention that, the time period mentioned in
paragraph 60 shall commence from the date of uploading of the present Order
on the official website of the High Court of Bombay.
63) With the aforesaid directions, Petition is disposed of.
(RANJITSINHA RAJA BHONSALE, J.) (MRS. VRUSHALI V. JOSHI, J.)
Digitally signed
by SAGAR
SAGAR SANTOSH
MAGAR
SANTOSH Date:
MAGAR 2026.08.22
13:02:58
+0530
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