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Section 5(1) in The Mines and Minerals (Development and Regulation) Act, 1957
The Mines and Minerals (Development and Regulation) Act, 1957
THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981
Section 5 in The Mines and Minerals (Development and Regulation) Act, 1957
Section 5 in The Registration Act, 1908

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Orissa High Court
Sri Kshirod Chandra Pradhan vs State Of Orissa And Others on 12 January, 2017
            THE HIGH COURT OF ORISSA : CUTTACK
                       W.P.(C). No.20533 of 2012
        ___________________________________________________

    In the matter of an application under Articles 226 and 227 of the
    Constitution of India.


                                 --------------

Sri Kshirod Chandra Pradhan ...... Petitioner

-Versus-


               State of Orissa
               and others                         ......   Opp. Parties


               For Petitioner            : M/s.Umesh Chandra Pattnaik,
                                           S.D.Mishra, S.Patnaik
                                           & K.K.Rout.

For Opp. Party Nos.1 & 2: Mr. B.Bhuyan (Addl. Govt. Advocate) For Opp. Party No.3 : Mr. A.K.Bose (Asst.Solicitor General) PRESENT:

THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY & THE HON'BLE MR. JUSTICE BISWANATH RATH Date of judgment : 12. 01. 2017 I. Mahanty, J. The present writ application has come to be filed by the petitioner-Sri Kshirod Chandra Pradhan, originally with the prayer seeking a direction to the opposite parties to execute the mining lease deed in respect of "Unchabali, Nayagarh Iron Ore Mines" in 2 the district of Keonjhar, in favour of the petitioner and further to direct Opposite Party No.2 (Collector, Keonjhar) to issue necessary surface right operation within a stipulated period.

2. After notice was issued in the present writ application to the State of Odisha, a counter affidavit came to be filed through Shri Debadutta Suranjita Jena, Under Secretary, Department of Steel & Mines, Government of Odisha on 22.06.2013, essentially objecting to the prayer of the petitioner by raising the plea that "the petitioner failed to submit the approved mining plan within the stipulated time period and also did not seek extension of the period for submission of the approved mining plan. Hence, the petitioner is not entitled to grant of mining lease."

3. A rejoinder affidavit came to be filed on behalf of the petitioner, inter alia, stating that the Director of Mines, Odisha vide its letter dated 04.05.2004 communicated the "precise area map" over 27.794 hectares. In terms of Rule 22(4) of the Mineral Concession Rules, 1960 (in short, the "MC Rules"), the petitioner immediately prepared the mining plan and submitted the same to the Central Government on 02.07.2004, before the Indian Bureau of Mines, Ministry of Mines, Government of India and the said mining plan was duly approved vide communication dated 11.11.2004. The petitioner also submitted the said approved mining plan with the 3 State of Odisha in the department of Steel and Mines under cover of its letter dated 17.11.2004. Consequently, the allegation of delay in submitting the aforesaid Mining, as alleged by the State, is not a fact.

Insofar as the modification of the area of lease is concerned, it is alleged that the modification became necessary, on account of the directions issued by the Odisha State Pollution Control Board, who under their order dated 18.11.2006 conveyed their "consent to establish" under Annexure-10, but limited the area to 24.570 hectares, instead of 27.794 hectares.

4. The aforesaid direction of the State Pollution Control Board was communicated to the Director of Mines, Odisha under cover of its letter dated 22.08.2009 who, thereafter, once again provided the "precise area map" by reducing the original area from 27.794 hectares to 24.570 hectares.

The petitioner in turn, submitted the modified mining plan to the Central Government under cover of his letter dated 26.11.2009 and the Central Government i.e. the Indian Bureau of Mines, Ministry of Mines, Government of India accorded its necessary approval to the modified mining plan on 14.01.2010 under Annexure-18 to the writ application. The said approval of the modified mining plan was also sent by the petitioner in original to 4 the Director of Mines, Odisha with the request for grant of mining lease at an early date.

5. In view of the aforesaid facts, it was asserted on behalf of the petitioner that the delay being the ground on which the State sought to justify their inaction, is wholly without any application of judicial mind, since there has been no delay on the part of the petitioner in seeking for and obtaining the necessary approvals of the modified mining plan as noted hereinabove.

6. Subsequent to the counter affidavit dated 24.06.2013, an additional affidavit came to be filed on behalf of the State by Sri Sundar Lal Seal, Additional Secretary, Steel & Mines Department, Government of Odisha. In the said additional affidavit, it was asserted that while the petitioner was granted with the mining lease over 27.794 hectares vide letter dated 08.01.2004, subsequently, the area approved under Section 5(1) of the Mines and Minerals (Development and Regulation) Act, 1957 (in short, the "MMDR Act, 1957") was reduced to 24.570 hectares and in view of the Government of India, Ministry of Mines' Circular dated 31.05.2012, the State Government has to once again approached the Central Government under Section 5(1) of the MMDR Act for approval although the area originally approved, is sought to be reduced. 5 Accordingly, in Para-5 of the additional counter affidavit, the following statements have been made:

"5. That the Government of India, Ministry of Mines has issued the following clarification dt.31.05.2012 regarding requirement of approval of Central Government for modification in the area.
"It is hereby clarified that in case the State Government has obtained prior approval of the Central Government under Section 5(1) of the MMDR Act for particular area and the State Government intends to revise or reduce the area approved by the Central Government, it must approach the Central Government again for approval of the revised/reduced area."
The writ petitioner at this stage, sought for amendment of the writ application to implead the Union of India in the Ministry of Mines as the necessary opposite party and sought to challenge the alleged clarification dated 31.5.2012 as well.

7. The application for impletion of party filed by the petitioner was allowed. The Union of India, Department of Mines was impleaded as Opposite Party No.3. Thereafter, the Union of India filed an affidavit through Mr. Mantu Balaram Biswas, Regional Controller of Mines in the Indian Bureau of Mines and in Para-8 of the said affidavit, the following stand has been taken by the Union of India:

"8. That in reply to para-19(b) it is humbly submitted that the Ministry of Mines, Government of India had consulted the Department of Legal Affairs, Ministry of Law and Justice, Government of India 6 before issuing the letter dated 31.5.2012, being questioned here. The Department of Legal Affairs has advised the Ministry of Mines, Govt. of India, before issue of the contested letter, vide their FTS No.1329/LS/2012 dated DLA/16.05.2012. Enclosed as Annexure-R1.
Para-5 of the Department of Legal Affairs, Ministry of Law and Justice, Govt. of India letter FTS No.1329/LS/2012 dated DLA/16.05.2012 is reproduced hereunder who has analysed the provisions of the Mines and Minerals (Development and Regulation) Act, 1957:
"From a combined reading of section 5(1) and 11(5) it would be clear that the State Government has no power to revise or diminish the area of the RP/PL or ML for which previous/prior approval of the Central Government has been obtained. In other words if the State Government has obtained previous/prior approval under section 5(1) or 11(5) of the Act for a particular area and the State Government intends to revise or reduce the area approved by the Central Government, it is required to approach the Central Government again."

8. Therefore, in the light of the aforesaid fact situation, the following issues arise for consideration:

(i) Whether the Circular issued by the Union of India in the Ministry of Mines dated 31.05.2012 as noted in Para-6, is in consonance with the MMDR Act, 1957 read with the concerned M.C. Rules ?
(ii) Whether the prayer made by the writ petitioner seeking direction to the State to execute the mining lease is justified in the present facts and circumstances of the case ?
7

9. Before entering into the issues framed hereinabove, it becomes important to note certain undisputed facts:

(i) The Government of Odisha invited application for grant of Prospecting Licence/Mining Lease for an area of 33.22 hectares vide Notification No.547/SM dated 23.8.1991, pursuant to which the petitioner applied for the grant of Prospecting Licence on 29.10.1991. The Government of Odisha vide communication dated 27.3.2000 sought a response from the petitioner as to whether the petitioner is ready to accept the terms and conditions mentioned therein for grant of Prospecting Licence. The petitioner communicated his acceptance of such terms and conditions.
Govt. of Odisha in Department of Steel and Mines letter dated 28.03.2000 (Annexure-2) granted "Prospecting License" to the petitioner for iron and manganese ore over an area of 33.22 hectares in village Unchabali, Nayagarh in the district of Keonjhar.
(ii) The Collector, Keonjhar passed an order for execution of Prospecting License with the petitioner (Annexure-3). Accordingly the licence was executed on 31.03.2000 (Annexure-4).
(iii) The petitioner applied for "mining lease" on 9.11.2000 (Annexure-5).

(iv) The Govt. of India in Ministry of Mines letter dated 05.12.2000 to the Secretary to the Govt. of Orissa, Department of Steel and Mines, conveyed the approval of 8 the Central Government under section 5(1) of MMDR Act, 1957 for grant of Mining Lease for Iron Ore over an area of 27.794 hectares Unchabali, Nayagarh in the district of Keonjhar for a period of twenty years (Annexure-6)

(v) The Opp. Party No.1 issued terms and conditions and called upon the petitioner to intimate as to he is ready to accept the terms and conditions of the mining lease. (Annexure-7).

(vi) The petitioner on 16.01.2004 intimated the joint Secretary to the Govt. Deptt. of Steel and Mines of his acceptance of the terms and conditions (Annexure-8).

(vii) The Director of Mines, Orissa vide his letter dated 04.05.2004 (Annexure-30) issued to the petitioner the "precise area map" and the land schedule over an area of 27.794 hectares in village Nayagarh, in the district of Keonjhar for preparation of Mining Plan.

(viii) The petitioner submitted on 02.07.2004 the Mining Plans to the Indian Bureau of Mines, Ministry of Mines for its approval (Annexure-31).

(ix) The Regional Controller of Mines, of Indian Bureau of Mines under Department of Mines of Ministry of Coal and Mines of Government of India in exercise of its power conferred by Clause (b) of sub-section 2 of section 5 of the MMDR Act, 1957 read with Government of India Order No. S.O.445(E) dated 28.04.1987 approved the 9 Mining Plan over an area of 27.794 hectares subject to certain terms and conditions. (Annexure-32).

(x) On 17.11.2004 the petitioner submitted the Mining Plan duly approved by the Indian Bureau of Mines with the Department of Steel and Mines and requested for grant order of mining lease. (Annexure-9).

(xi) The State Pollution Control Board, Orissa in its letter dated 18.11.2006 conveyed its Consent to Establish under Section 26 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 24 Air (Prevention and Control of Pollution) Act, 1981 for production of Iron Ore over mine lease hold area of 24.570 hectares at village- Nayagarh in the district of Keonjhar with the conditions inter alia (condition no.29) that the unit shall furnish modified approved mining plan for mining area over 24.570 hectares. (Annexure-10).

(xii) The Director of Mines, Orissa vide its letter dated 22.08.2009, supplied the precise area map over 24.470 hects. For Iron Ore in village-Nuagaon for preparation of Mining Plan (Annexure-33)

(xiii) On dated 20.11.2009 the petitioner again applied for approval of mining plan over the reduced area of 24.570 hectares. (Annexure-34).

(xiv) The Regional Controller of Mines, of Indian Bureau of Mines under Department of Mines of Ministry of Coal and Mines of Government of India in exercise of its power conferred by Clause (b) of sub-section 2 of section 10 5 of the MMDR Act, 1957 read with Government of India Order No. S.O.445(E) dated 28.04.1987 approved the modification in the Mining Plan over an area of 24.570 hectares and communicated the same to the petitioner on dated 14.01.2010 (Annexure-18). The petitioner has submitted the same with the opp. Parties.

(xv) The State Advisory Group consisting of Chief Conservator of Forest, Eastern Region, Ministry of Envt. And Forest, Addl. Secretary, Rev. and DM, C.C.F., Nodal and Joint Secretary, Steel and Mines Deptt. held on 20.12.2007 recommended for diversion of 20.31 hectares of DLC deemed forest land. (Annexure-35). (xvi) The DFO, Keonjhar Division vide his letter dated 15.03.2008 intimated the petitioner that since the Govt. of India in Ministry of Environment and Forest has agreed in principle for diversion of 20.310 hects. DLC land, hence the petitioner is required to deposit amount of Rs.1,52,32,500/- towards NPV and Rs.2,48,000/- towards Vegetation fencing etc. in shape of Bank Draft in favour of Compensatory Afforestation Fund and to provide infrastructure facilities as approved in the CAF. The petitioner was also to comply with other conditions as stipulated in Stage I approval. (Annexure-11). (xvii) The D.F.O. vide his letter dated 21.04.2008 asked the petitioner to deposit Rs.6,42,000/- towards compensatory Afforestation and other expenses. (Annexure-12).

11

(xviii) The D.F.O. vide his letter dated 21.07.2008 asked the petitioner to deposit Rs.4,76,180/- towards implementation of Wild Life Management Plan (Annexure-13).

(xix) The D.F.O. vide his letter dated 21.04.2008 asked the petitioner to deposit Rs.85,500/- as cost of Fencing Protection and Regeneration of Safety Zone and cost for Afforestation over 1.5 times safety Zone (Annexure 14). (xx) The petitioner vide his letters dated 16.07.2008 (Annexure 15 series) and letter dated 17.07.2008 (Annexure 16) and letter dated 03.08.2008 (Annexure

17) intimated the D.F.O. about payment of various demands as raised by him.

(xxi) The office of Chief Conservator of Forests (Wild Life) and Chief Wild Life Warden, Orissa vide letter dated 09.02.2010 demanded payment of Rs.21 lakhs for activities to be implemented by user agency and to be implemented by D.F.O. (Annexure-19). The petitioner vide his letter dated 15.02.2010 submitted a draft of Rs.14,50,000/- towards cost of activities to be implemented by D.F.O. in terms of demand under letter dated 09.02.2010 (Annexure-20).

(xxii) The D.F.O., Keonjhar raised demand for payment of differential cost towards NPV amounting to Rs.8,51,590/- (Annexure-21). The petitioner paid the differential amount (Annexure-22).

12

(xxiii) The State Environment Impact assessment Authority (SEIAA) vide its letter dated 16.12.2010 intimated the petitioner about according Environmental Clearance for a period of five years (Annexure-23).

(xxiv) The Collector, Keonjhar (Annexure-24) issued certificate under Schedule Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. (xxv) Vide Orissa Gazette Notification dated 27.04.2011 the Forest and Environment Department notified the area for Compensatory Afforestation (Annexure-25). (xxvi) The Government of India in Ministry of Environment and Forest vide its letter dated 06.06.2011 conveyed its approval under Section 2 of Forest (Conservation) Act, 1980 for diversion of DLC Land in favour of the petitioner (Annexure-26).

(xxvii) The petitioner requested the Opp. Party No.1 vide his letter dated 14.06.2011 that he has complied with all the terms and conditions for grant of mining lease as well as has obtained all the statutory clearances but no grant order has been issued and requested for early action (Annexure-27). The petitioner vide his reminder letters dated 12.10.2011, 16.01.2012, 17.02.2012 and 10.04.2012 requested the opp. party no.1 to the needful for grant of lease (Annexure-28 series).

(xxviii) The State Pollution Control Board, Odisha, vide its letter 25.07.2012 conveyed its consent to Establish 13 under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 21 Air (Prevention and Control of Pollution) Act, 1981 for production of Iron Ore (Annexure-29).

10. On a plain reading of the counter affidavits filed by the State and counter affidavit of the Union of India, essentially, the following grounds have been raised.

(a) Delay on the part of the petitioner in getting approval of the mining plans.

(b) The petitioner is operating six leases over 168.476 hectares.

(c) The Circular of the Union of India, Ministry of Mines dated 31.05.2012 requiring fresh approval from the Ministry of Mines, Government of India under Section 5(1) of the MMDR Act, 1957 even in the case of reduction of area prior to the execution of lease deed.

11. As noted hereinabove, insofar as the first objection is concerned, we are of the considered view that the first objection relating to the delay in obtaining approval of mining plan, the same has no factual basis since as noted in Para-9 (viii) (xiii) above, the petitioner has acted within the statutory period by obtaining necessary sanction of mining plan from the appropriate authority i.e. Indian Bureau of Mines, both, for the original lease area sought for as well as 14 the revised area. Consequently, this objection on the part of the State is merely noted to be rejected and we do not record any further elaborate discussion on this in view of the recording of the rival stand of the parties as noted in Para-2 & 3 above.

Insofar as the petitioner's holding six leases are concerned, the said factual assertion though not denied by the petitioner, learned counsel for the State as well as the Union of India could not point out any provision of law either under the MMDR Act, 1957 or under the M.C. Rules under which a person can be denied mining lease on account of holding any prior holding of the leases under the State. Consequently, the said objection also has no legal basis and is accordingly rejected.

12. The challenge to the Circular of the Union of India dated 31.5.2012 under Annexure-36 has to be next taken into consideration.

The entire pleading in this regard has been extracted in Para-6 and, therefore, is not being reiterated herein for the sake of brevity. The stand of the Union of India in this regard has also been extracted hereinabove in Para-7 and also is not been reiterated herein for the sake of brevity.

On reading of the stand of both the Union of India as well as the State, it appears that the Government of India had consulted the Department of Legal Affairs, Ministry of Law and Justice, Government 15 of India before issuing the letter dated 31.5.2012. It appears further that the Department of Legal Affairs has advised the Ministry of Mines, Government of India vide its letter dated 16.5.2012, based on which the Ministry of Mines issued the necessary Circular to the effect that, if the State Government has obtained previous/prior approval under Section 5(1) or 11(5) of the Act for a particular area and the State Government intends to revise/reduce the area approved by the Central Government, it is required to approach the Central Government again.

13. Although the learned counsel for the writ petitioner seeks to challenge the aforesaid Circular, as an alternative submission, he submits that in the facts and circumstances of the present case, there has been no violation of Section 5(1) nor Section 11(5) of the MMDR Act, 1957 nor any violation of the Circular dated 31.5.2012. In this respect, to consider the aforesaid submissions, it is necessary for us to take note of Section 5(1) and (2) of the MMDR Act, 1957 as hereunder:

"5. Restrictions on the grant of prospecting licences or mining leases.- (1) A State Government shall not grant a [reconnaissance permit, prospecting licence or mining lease] to any person unless such person-
(a) Is an Indian national, or company as defined in sub-section (1) of section 3 of the Companies Act, 1956 (1 of 1956); and
(b) satisfies such conditions as may be prescribed:
Provided that in respect of any mineral specified in the First Schedule, no [reconnaissance permit, prospecting licence or mining lease] shall be granted 16 except with the previous approval of the Central Government.
Explanation - For the purposes of this sub-section, a person shall be deemed to be an Indian national, -
(a) in the case of a firm or other association of individuals, only if all the members of the firm or members of the association are citizens of India; and
(b) in the case of an individual, only if he is a citizen of India.] (2) No mining lease shall be granted by the State Government unless it is satisfied that -
[(a) there is evidence to show that the area for which the lease is applied for has been prospected earlier or the existence of mineral contents therein has been established otherwise than by means of prospecting such area; and
(b) there is mining plan duly approved by the Central Government, or by the State Government, in respect of such category of mines as may be specified by the Central Government, for the development of mineral deposits in the area concerned.]"
In the facts situation as noted above, it is clear therefrom that the approval of the Central Government under Section 5(1) of the MMDR Act was granted on 15.12.2000 over an area of 27.794 hectares under Annexure-6 for a period of 20 years, Thereafter, the necessary deposits and consents as required under various other provisions of law, have been narrated in Para-9 above and it is only after the State Pollution Control Board granted consent to establish over a lesser area, the Director of Mines, Odisha vide letter dated 22.8.2009 supplied the petitioner with the "precise area map" over 24.570 hectares and soon thereafter, on 20.11.2009, the petitioner again applied for the mining 17 plan over the reduced area. The Indian Bureau of Mines in the Department of Mines, Government of India exercised its power under Section 5(2)(b) of the MMDR Act, 1957 and approved the modification in the mining plan over the reduced area of 24.570 hectares and communicated the same to the petitioner on 14.1.2010.

At this stage, it would be important to take note of the fact that the Government of India in the Ministry of Steel and Mines has by a Gazette of India Notification dated 28.04.1987 specifically, vested the authority under Section 5(2)(b) of the MMDR Act, 1957 in the Controller General, Chief Controller of Mines, Controller of Mines and Regional Controller of Mines of Indian Bureau of Mines. The Gazette of India vesting such authority with the aforesaid designated authorities has noted as hereunder:

"THE GAZETTE OF INDIA EXTRAORDINARY PART II - Section 3 - Sub-Section (ii) No.208 NEW DELHI, TUESDAY, APRIL 28, 1987/VISAKHA 8, 1909 Separate paging is given to this Part in order that it may be filed as a separate compilation MINISTRY OF STEEL AND MINES (Department of Mines) New Delhi, the 28th April, 1987 ORDER S.O.445(E) In exercise of the powers conferred by clause
(a) of sub-section (1) of section 26 of the Mines and Mineral (Regulation and Development) Act, 1957 (67 of 1957), the 18 Central Government hereby directs that the powers under Clause (b) of sub-section (2) of section 5 of the said Act, exercised by it, shall also be exercised by the Controller General, Chief Controller of Mines, Controller of Mines and the Regional Controller of Mines of Indian Bureau of Mines.
(F.No.5(1)/87-M.VI) T.N.SRIVASTAVA, Jt. Secy.
IBM Manual for inspection of Mines, 2014"

14. In the light of the facts and contentions as noted hereinabove, we are clearly of the view that it is not necessary for this Court for the purposes of adjudication of this matter, require to enter into the validity or otherwise of Annexure-36 i.e. the Circular issued by the Ministry of Mines, Government of India dated 31.05.2012. We are of the considered view that since the petitioner had obtained the necessary approval of the Union of India under Section 5(1) of the MMDR Act, 1957 over an area of 27.794 hectares on 5.12.2000 and the Central Government (Regional Controller of Mines of Indian Bureau of Mines) has granted approval for the reduction in the area as suggested by the Pollution Control Board to 24.570 hectares vide approval dated 14.01.2010 of the reduced area i.e. 24.570 hectares which authority is vested with the Regional Controller of Mines of Indian Bureau of Mines under Section 5(2) of the MMDR Act, 1957, we conclude that the necessary approvals are in order.

In view of the aforesaid finding of fact, we are of the considered view that in the present case, since both the Sections 5(1) 19 and 5(2) of the MMDR Act, 1957 have been complied with and necessary approvals have been granted, there has been no violation of the impugned Circular dated 31.05.2012 under Annexure-36 and consequently, since the matter has been delayed for more than two decades, we direct the opposite parties to execute the mining lease, known as, Unchabali, Nayagarh Iron Ore in the district of Keonjhar for a period of 20 years in favour of the petitioner over the reduced area at the earliest.

15. The writ application is allowed to the extent indicated above.

.........................

I.Mahanty, J. 

Biswanath Rath, J.           I agree.

                                                      ................................
                                                       Biswanath Rath, J.




        ORISSA HIGH COURT: CUTTACK
           12th January, 2017/Ranjan