Gujarat High Court
Shree Digvijay Cement Company Limited & vs Industries And Mines Department on 9 January, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/21188/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 21188 of 2016
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SHREE DIGVIJAY CEMENT COMPANY LIMITED & 1....Petitioner(s)
Versus
INDUSTRIES AND MINES DEPARTMENT, & 1....Respondent(s)
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Appearance:
MR MIHIR J THAKORE, SENIOR ADVOCATE and MR SHALIN N MEHTA,
SENIOR ADVOCATE with MR ARVIND KUMAR RAY, ADVOCATE with MR
DIGANT M POPAT, ADVOCATE with MR MALAV M MULANI, ADVOCATE for
the Petitioner(s) No. 1 - 2
MR RUTVIJ OZA, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR DEVANG VYAS, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 09/01/2017
ORAL ORDER
1. Heard Mr. Mihir J. Thakore, learned Senior Advocate and Mr. Shalin N. Mehta, learned Senior Advocate with Mr. Arvind Kumar Ray, learned advocate with Mr. Digant M. Popat, learned advocate with Mr. Malav M. Mulani, learned advocate for the petitioners and Mr. Rutvij Oza, learned AGP for respondent no.1.
2. By way of this petition under Article 226 of the Constitution of India, the petitioners have Page 1 of 10 HC-NIC Page 1 of 10 Created On Tue Jan 10 00:40:13 IST 2017 C/SCA/21188/2016 ORDER prayed for the following reliefs: "a) Issue a writ, order or direction in the nature of mandamus, directing the respondent to pass an order granting mining lease and thereafter execute the mining lease before 11.01.2017 in respect of (i) an area of 6.64.89 hectares under survey No. 51 at MokhanaBhanwad Taluka, Jamnagar District; (ii) an area of 18.03.88 hectares under survey No. 78 at Pachhtardi in Bhanwad Taluka, Jamnagar District; and (iii) an area of 67.13.37 hectares under survey No. 166 & 138 at Debhar & Bhuvaneswar in Bhanwad Taluka, Jamnagar District, for a period of 30 years subject to the condition that the petitioner no.1 Company shall obtained requisite Environment Clearance before undertaking any mining operations in the area covered by the respective leases;
Or in the alternative, Issue a writ, order or direction in the nature of mandamus, directing the respondent to grant an extension of time to the petitioner no.1 Company for fulfilling the conditions stipulated under the LOIs - to the effect that the time limit of two (2) years, as contemplated under Section 10A(2)(c) of the MMDR Act shall be deemed to have commenced from the date of vacation of the Interim Order, i.e. from 17.10.2016; and
b) Issue a writ, order or direction in the nature of mandamus, directing the respondent to include the cases of Page 2 of 10 HC-NIC Page 2 of 10 Created On Tue Jan 10 00:40:13 IST 2017 C/SCA/21188/2016 ORDER the petitioner no.1 Company, related to the LOIs, in the list of 'saved cases' as per Section 10A(2)(c) of the MMDR Act and take all consequential steps thereafter; and aa) Issue a writ, order or direction in the nature of mandamus, directing the respondent to delete the condition no.2 of LOIs which were issued in favour of the petitioner no.1 Company on 9.11.2005 in the interest of justice.
dd) Pending hearing and final disposal of the present petition, pass an appropriate order(s) directing the respondent to execute the lease deed for the three LOIs issued in favour of the petitioner no.1 Company in the interest of justice.
c) Pass an appropriate adinterim, exparte order(s) protecting the petitioner no.1 Company from any coercive and/or adverse action that may be taken by the respondent or any of it agents, during the pendency of this present petition. More particularly, during pendency of this present petition, this Hon'ble Court may, as an adinterim exparte relief, be pleased to direct that the respondent or any of its agents, shall not, on or after 11.01.2017, declare or consider the LOIs to have lapsed, on account of the time limit prescribed by Section 10A(2)(c) of the MMDR Act; and
d) Pass an appropriate adinterim exparte order(s) directing that the respondent or any of its agents, during pendency of the present Page 3 of 10 HC-NIC Page 3 of 10 Created On Tue Jan 10 00:40:13 IST 2017 C/SCA/21188/2016 ORDER petition, shall not extinguish the rights of the petitioner no.1 Company in respect of the LOIs and that the respondent or any of its agents, shall not create any third party rights in respect of relevant mining areas contemplated under the LOIs; and/or
e) ... ... ..."
3. This Court by an order dated 27.12.2016 had passed the following order: "Heard Mr.S N Shelath, learned Senior Advocate with Mr. Shalin Mehta, learned Senior Advocate with Mr. Arvind Kumar Ray, learned Advocate and Mr. Ajay Bhargav with Mr. Malav Malani, learned Advocate for the petitioners and Mr. Rutvij Oza for the respondents.
Learned Counsels appearing for the parties have relied upon a judgment of Karnataka High Court in Writ petition No. 36461 of 2016 and allied matters as well as an order dated 06.08.2015 passed by this Court (Coram: N.V. Anjaria, J.) in Special Civil Application No. 5868 of 2014.
It is contended by the learned Counsels appearing for the petitioners that a similar order be passed directing the government to take decision and place the same on record.
Mr. Mehta learned Counsel appearing for the petitioner states that, it is an urgent matter and the petitioners may be permitted to move the matter before the Hon'ble Vacation Judge.
Page 4 of 10HC-NIC Page 4 of 10 Created On Tue Jan 10 00:40:13 IST 2017 C/SCA/21188/2016 ORDER The matter is adjourned to 03.01.2017 subject to the convenience of the Hon'ble Vacation Judge."
4. Thereafter, the matter was moved before the Vacation Judge and this Court (Coram: A.S. Supehia, J.) by an order dated 3.1.2017 had adjourned the matter to today and had observed thus: "5. In view of the aforesaid, I am of the opinion that the matter can wait till 9th January, 2017 and if any necessary decision as canvassed in the letter dated 30th December, 2016 is taken, the same shall be produced by way of an affidavit on 9th January, 2017.
6. If any adverse decision is taken pursuant to the meeting to be held today, the same shall not be implemented till 09.01.2017. A copy thereof shall be communicated to the petitioners, on or before 09.01.2017."
5. Learned counsel for the petitioners have brought on record the notification dated 4.1.2017 issued by the Central Government in exercise of powers under Section 24 of the Mines and Minerals (Development and Regulation) Amendment Act, 2015. In Clause 2 of the said notification, it is provided that notwithstanding anything contained in Clause
(c) of subsection (2) of Section 10A of the Page 5 of 10 HC-NIC Page 5 of 10 Created On Tue Jan 10 00:40:13 IST 2017 C/SCA/21188/2016 ORDER Mines and Minerals (Development and Regulations) Amendment Act, 2015, it is clarified that where the condition of obtaining environmental clearance has not been complied with by the applicant on or before 11th January, 2017, but all other conditions specified in the previous approval or the letter of intent have been fulfilled, the applications shall be considered under that section and mining lease shall be granted by the concerned State Governments in accordance with the notifications issued under the Environment (Protection) Act, 1986. It is further provided that however, no mining activity shall commence unless and until the applicant obtains environmental clearance as laid down under the Environment (Protection) Act, 1986 and the Rules made thereunder. The learned counsel for the petitioners also draw attention to a further communication dated 5.1.2017 addressed by the Government of India, Ministry of Mines, wherein it is provided that the last date for grant of lease in this case would be 11.1.2017. The learned counsel for the petitioners have also relied upon Rule 8(4) of the Mineral (other than Atomic and Hydrocarbons Energy Minerals) Concession Rules, 2016, which reads as under: Page 6 of 10 HC-NIC Page 6 of 10 Created On Tue Jan 10 00:40:13 IST 2017 C/SCA/21188/2016 ORDER "8(4) Where an order for grant of mining lease has been issued under subrule (2), the mining lease shall be executed with the applicant in the format specified in Schedule VII and registered on or before 11th January, 2017, failing which, the right of such an applicant under clause (c) of sub section (2) of section 10A for grant of a mining lease shall be forfeited and in such case, it would not be mandatory for the State Government to issue any order in this regard."
6. On the basis of the said Rule, it is contended by the learned counsel for the petitioners that subject to obtaining environmental clearance from the competent authority of the Central Government as provided under the Rules as well as clarified under the notification dated 4.1.2017 and the communication dated 5.1.2017, following the time limit prescribed under Rule 8(4) of the Mineral (other than Atomic and Hydrocarbons Energy Minerals) Concession Rules, 2016, lease deeds have to be executed latest by 11.1.2017.
7. As against this, Mr. Rutvij Oza, learned Assistant Government Pleader, on instructions, states that the State Government has acted upon the notification dated 4.1.2017 as well as the clarifications which are issued by further correspondence dated 5.1.2017. It is contended that the grant of lease is already undertaken and the final area will be as per the Page 7 of 10 HC-NIC Page 7 of 10 Created On Tue Jan 10 00:40:13 IST 2017 C/SCA/21188/2016 ORDER environmental clearance and the area of mining lease under consideration is accordingly amended and the same will bind to the lessee. It is also contended that Rule 8(4) of the Mineral (other than Atomic and Hydrocarbons Energy Minerals) Concession Rules, 2016, though provides for time limit upto 11.1.2017, the same is not provided under the parent provision, namely, Section 10(A)(c) of the Mines and Minerals (Development and Regulation) Act, 1957.
8. Be that as it may; in order to see that the time limit which is prescribed under Rule 8(4) of the Mineral (other than Atomic and Hydrocarbons Energy Minerals) Concession Rules, 2016 is adhered to by the adinterim direction, the following interim directions are issued: [a] The State Government shall act upon the notification dated 4.1.2017 issued by the Central Government under Section 24 of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 as well as the earlier orders and pass an order of grant of lease forthwith as per each Letter of Intent.
[b] The State Government shall also execute separate lease deeds in respect of each Letter of Intent as provided under Rule 8(4) of the Mineral (other than Atomic and Hydrocarbons Page 8 of 10 HC-NIC Page 8 of 10 Created On Tue Jan 10 00:40:13 IST 2017 C/SCA/21188/2016 ORDER Energy Minerals) Concession Rules, 2016 in order to avoid any controversy thereafter latest by 11.1.2017. However, the area that may be mentioned in the said lease deed would be subject to ratification by fresh deed or further deed after the same is measured by the DILR, as indicated by the learned Assistant Government Pleader by stating/incorporating actual area.
[c] The District Collector, Devbhoomi Dwarka shall get area of the each lease so granted and mentioned in the Letters of Intent by the DILR as expeditiously as possible, preferably within a period of four weeks from today.
[d] The petitioners shall not carry out any mining activity till the same is measured and the area for mining is determined by the actual measurement made by the DILR.
[e] The petitioners also shall file individual undertakings to the effect that they shall not commence the mining operations unless and until the petitioners obtain environmental clearance as laid down under the Environment (Protection) Act, 1986 and the Rules framed thereunder, as provided in the notification dated 4.1.2017.
[f] It is also provided that this order shall apply in case if the petitioners fulfill all other Page 9 of 10 HC-NIC Page 9 of 10 Created On Tue Jan 10 00:40:13 IST 2017 C/SCA/21188/2016 ORDER requirements as provided which are required under the notification dated 4.1.2017.
[g] The petitioners shall file undertaking(s) before the District Collector about obtaining of environmental clearance as well as not to commence any mining activity till the area of lease is measured and determined and so also of obtaining environmental clearance before the District Collector by tomorrow i.e. by 10.1.2017.
[h] The aforesaid interim direction would be subject to further orders of this Court.
9. For further orders, S.O. to 14.2.2017. Direct service is permitted today.
(R.M.CHHAYA, J.) mrp Page 10 of 10 HC-NIC Page 10 of 10 Created On Tue Jan 10 00:40:13 IST 2017