Delhi High Court - Orders
Adani Power (Mundra) Limited & Anr vs Union Of India & Ors on 3 March, 2022
Author: Neena Bansal Krishna
Bench: Chief Justice, Neena Bansal Krishna
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 11071/2021
ADANI POWER (MUNDRA) LIMITED & ANR. ..... Petitioners
Through: Mr. Parag P. Tripathi, Senior
Advocate with Mr. Mahesh Agarwal, Mr. Rishi
Agrawala, Mr. Karan Luthra, Ms. Aarushi Tiku &
Mr. Pratham Agarwal, Advocates
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Chetan Sharma, Additional
Solicitor General with Mr. Kirtiman Singh, CGSC
with Ms. Srirupa Nag, Mr. Waize Ali Noor, Ms.K.
Bharadwaj, Mr. Vinay Yadav, Mr.Amit Gupta,
Mr. Rishav Dubey & Mr.Sahaj Garg, Advocates
for UOI/R-1, R-2 & R-4
Mr. Vishnu Sharma, Standing Counsel (State of
Jharkhand) with Mr. Abhishek & Mr. Shashank
Kumar, Advs. for R-3
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
ORDER
% 03.03.2022
1. Even though, the learned senior counsel appearing for the petitioners, the learned Additional Solicitor General appearing for the Union of India have argued tooth and nail on merits, however, as usual the State of Jharkhand is seeking time for filing affidavit. Earlier also, the Standing Counsel appearing for the State of Jharkhand had not filed affidavit and had W.P.(C) 11071/2021 Page 1 of 5 Signature Not Verified Digitally Signed By:AMIT NARAYAN BHARTHUAR Signing Date:10.03.2022 09:58:52 sought for further time to file the same. The time, as prayed for, was granted.
2. It is pertinent to mention that the notice was issued in this case on 29.09.2021. Notice has already been served upon all the respondents. Learned senior counsel appearing for the petitioners submits that the order passed by this Court in this writ petition have also been served upon the State of Jharkhand including detailed interim order dated 29.09.2021 passed by this Court.
3. Despite our interim order dated 29.09.2021, where we have already mentioned in tabular format on internal page no.2 which continues upto the internal page no.4, which reads as under: -
"According to the Petitioners, as per the particulars of the Jitpur Coal Mine, which has been specified in Annexure-I to the Vesting Order, the description of the land was as follows :-
Type of Land: Leasehold Land for Mining as per Mining Lease Nature Area (Hectares) Government 17.01 Land Private 137.14 Land Forest Land 141.18 The grievance of the Petitioners is that for the first time Respondent No.3 informed the Petitioners on 11.02.2017 and 01.03.2017 that 17.9 hectare of land mentioned as Government land in the Mine Dossier and in the Vesting Order was deemed Forest Land as per Notification dated 25.02.1946 under the W.P.(C) 11071/2021 Page 2 of 5 Signature Not Verified Digitally Signed By:AMIT NARAYAN BHARTHUAR Signing Date:10.03.2022 09:58:52 Forests Act, 1927. Therefore, this land cannot be used for mining purposes, per se. In so far as the private land is concerned i.e. 137.14 hectares, the State Government informed vide letters dated 04.09.2019 and 22.02.2020 that the land acquisition for the private land had lapsed and fresh proceedings would have to be undertaken. Therefore, this land also cannot be used for mining purposes. It is also averred that forest clearance of land has not yet been obtained on account of the inaction of the State Government. Till date the land has not been offered by the State Government for Compensatory Afforestation for diversion of Forest Land. Therefore, third land also cannot be used for mining purposes. There is no availability of Compensatory Afforestation Land.
Mr. Parag P. Tripathi, learned Senior Counsel appearing for the Petitioners submits that an Award has been passed for acquiring 137.4 hectares of private land in November, 2015 and Petitioner No. 1 has already deposited compensation of approximately Rs. 57.48 Crores, as directed. Land acquisition proceedings according to him have lapsed on account of default of the State of Jharkhand. He further submits that the extent of Forest Land of 141.1 hectares have been revised to 158.11 hectares making the previous steps taken by the prior Allottee to get the forest clearance, otiose. Government land of 17.01 hectares has been revealed to be Forest Land for which fresh clearance is required and besides that an additional land of 19.5 hectares needed for mine infrastructure is also notified to be Forest Land. Therefore, forest clearance is required for additional 36.96 hectares of Forest Land, in complete deviation of the Vesting Order. It is also argued that since the land suggested by Respondent No. 4 was found to be Forest Land and not fit for use as Compensatory Afforestation Land, there is actually no availability of Compensatory Afforestation Land. The argument is that in view of the two factors; (i) proceedings for land acquisition for the private land to be started afresh and
(ii) Forest clearance to be obtained for the newly notified Forest Land, it is impossible to develop the mine in a timely manner and this is a result of inaction of the Respondents and/or lapse in notifying the true and accurate particulars in the Vesting W.P.(C) 11071/2021 Page 3 of 5 Signature Not Verified Digitally Signed By:AMIT NARAYAN BHARTHUAR Signing Date:10.03.2022 09:58:52 Order and mine Dossier. Owing to the aforesaid gross discrepancies between the terms of the auction and ground facts and the additional financial burden on the Petitioners, for no fault of theirs, Petitioner No. 1 had requested Respondent No. 2 to cancel the Vesting Order, vide letter dated 31.10.2020 and release the performance security as well as refund the amounts of Rs. 67.26 Crores paid to Respondent No. 3 as well as refund the upfront amount of Rs. 36.50 Crores and Rs. 29.89 Crores towards other expenses. However, instead of doing the needful, Respondent No. 2 in an arbitrary and irrational manner, terminated the Agreement and directed the State Bank of India to remit the amounts under the Performance Bank Guarantee."
4. Despite the aforementioned interim order dated 29.09.2021 and several opportunities provided by this court to State of Jharkhand to file affidavit, they have failed to do so. Today also, learned Standing Counsel appearing for the State of Jharkhand is seeking time to file reply.
5. Learned Additional Solicitor General appearing for respondents no.1, 2 and 4 submits that they are pressing for reauctioning of the mining operation of the land in question, which is being permitted by this Court.
6. We have already granted stay against the encashment of bank guarantee vide our order dated 29.09.2021 which shall be continued, and the bank guarantee shall be returned within one week from date of execution of "Letter of Intent of Coal Mines Production and Development Agreement"
entered into with a new bidder.
7. It is directed that State of Jharkhand shall file their counter affidavit before the next date of hearing.
8. The Letter of Intent of Coal Mine Production & Development W.P.(C) 11071/2021 Page 4 of 5 Signature Not Verified Digitally Signed By:AMIT NARAYAN BHARTHUAR Signing Date:10.03.2022 09:58:52 Agreement with a new bidder shall be presented before this court before the next date of hearing.
9. List on 29.03.2022.
CHIEF JUSTICE NEENA BANSAL KRISHNA, J MARCH 3, 2022 ns W.P.(C) 11071/2021 Page 5 of 5 Signature Not Verified Digitally Signed By:AMIT NARAYAN BHARTHUAR Signing Date:10.03.2022 09:58:52