Orissa High Court
M/S. Balasore Alloys Limited vs Union Of India & Ors. ..... Opp. Parties on 3 November, 2023
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
AFR W.P(C) NO. 14204 OF 2023
In the matter of an application under Article 226 of the
Constitution of India.
---------------
M/s. Balasore Alloys Limited, Balasore & Anr. ..... Petitioners
-Versus-
Union of India & Ors. ..... Opp. Parties For petitioners : Mr. N. Gupta, Sr. Advocate, Mr.S. P.Mishra, Sr. Advocate, Mrs. Pami Rath,Sr. Advocate, Mr. N. Kumar, Sr. Advocate along with M/s. S. Mishra, R.K. Agrawal, M. Mishra, G.N. Parida & O. Panda, Advocates For opp. parties : Mr. P.K. Parhi, DSGY along with Mr. S.S. Kashyap, CGC [O.P.1] Mr. A.K. Parija, Advocate General, Odisha, along with Mr. P.P. Mohanty, AGA, [O.Ps.2-5] P R E S E N T:
THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN // 2 // Date of Hearing: 30.10.2023:: Date of Judgment: 03.11.2023 DR. B.R. SARANGI, ACJ. Petitioner no.1-M/s. Balasore Alloys Limited, a company registered under the Companies Act, 1956, represented through petitioner no.2, who is a shareholder of petitioner no.1-company, has filed this writ petition seeking following prayers:-
"a) Allow the present Writ Petition and pass an appropriate writ, order or direction including a writ in the nature of mandamus or any other appropriate writ/order directing the Opposite Party No. 1 to expeditiously grant the formal letter of Stage-II Forest Clearance to the Petitioner in respect of the Subject Mineral Block over an area of 64.463 ha. situated in Kaliapani Village in Sukinda Tehsil of Jajpur District in the State of Odisha in a time-bound manner within a period of 3 months, in view of the fact that the Petitioner has already complied with all the essential and necessary conditions of Stage-I Forest Clearance; And/Or
b) Pass an appropriate writ, order or direction including a writ in the nature of mandamus or any other appropriate writ/order directing the Respondent No. 2 to grant permission to the Petitioner Company to resume its mining operations in the Subject Mineral Block over an area of 64.463 ha. situated in Kaliapani Village in Sukinda Tehsil of Jajpur District in the State of Odisha in view of the fact that the Petitioner has paid NPV and has also substantially complied with all the requirements of Stage-I Clearance and only formal approval letter is awaited for issuance of Stage-II Forest Clearance;
And/Or
c) Pass an appropriate writ, orders or direction including a writ in the nature of mandamus or any other appropriate Writ directing the State Govt. of Odisha not to deny the required and necessary transit passes/permit to the Petitioner Company for removal/transportation of minerals from the Subject Mineral Block to the Petitioner No. 1: And/Or // 3 //
d) Pass any other further orders/directions as this Hon'ble Court may deem fit and proper in the present set of facts and circumstances."
2. The factual matrix of the case, in brief, is that M/s. Tata Iron and Steel Company Limited (for short "TISCO") is the original holder of the subject mineral block over an area of 64.463 hectares, which is a part of larger area of Sukinda Chrome Valley, from the year 1953 till 1993. It had applied to the Raja of Sukinda Block, Odisha for grant of a prospecting licence and the same was granted in the year 1952. Thereafter, on 22.10.1952, TISCO was granted a mining lease over an area of 1813 hectares for mining of Chromite, which was renewed for a period up to 1993 over reduced area of 1261.476 hectares.
2.1. Pursuant to the judgment dated 23.07.1996 of the Supreme Court of India in Tata Iron & Steel Co. Ltd. v. Union of India & Anr., (1996) 9 SCC 709, a part of the Sukinda Chromite Block was retrenched from TISCO and was granted to other Chrome-based Industries, one of which is the petitioner-company. The petitioner-company was granted mining lease over an // 4 // area of 100.063 hectares, which consists of 64.463 hectares non-forest land and 35.600 hectares forest land for which terms and conditions were issued, vide letter dated 24.05.1999, and it was accepted instantly by the petitioner-company on 25.05.1999. 2.2. The petitioner-company, vide letter dated 03.12.1999, requested for splitting of the mining lease area into two parts, i.e., 64.463 hectares of non-forest area and 35.600 hectares of forest land. In pursuance of the request letter, the ML area granted to the petitioner- company was splitted into two blocks i.e. 64.463 hectares of non-forest block and 35.600 hectares of forest block, vide order dated 16.02.2000 issued by the State, and petitioner-company was requested to furnish two separate mining plans with due approval of IBM. Accordingly, the subject mineral block consisting of 64.463 hectares non-forest land was granted to petitioner-company and a lease deed was executed on 15.07.2000. After having obtained all the required clearances, petitioner-company commenced with the mining operations from September, 2000. The said // 5 // mining lease was granted as captive mining lease and the minerals produced from the subject mineral block are entirely consumed in the two captive ferro chrome plants of petitioner-company, of which one is situated at Balasore, having a capacity of 145000 TPA (Ton Per Annum) with an investment of Rs.615 crores with 2000 employees working, and the other at Sukinda, having a capacity of 15660 TPA with an investment of Rs.31 crores with 250 employees working. Throughout the mining operations, the subject mineral block was treated as a non-forest area, right from the beginning, i.e., from September, 2000 till 2015. The State Government, Central Government, IBM, MoEF & CC and all other concerned entities accepted the position that the subject mineral block consisted entirely of non- forest area.
2.3. For the first time in the year 2014, the MoEF & CC, vide its letters dated 19.02.2014 and 07.05.2014, was of the view that the change of kisam of land from forest (in the sabik records) to non-forest land (in Hal settlement) after 25.10.1980 would require prior // 6 // approval of the Central Government under Section 2 of the Forest (Conservation) Act, 1980 (for short "F.C. Act"), in view of judgment dated 12.12.1996 of the apex Court in T.N. Godavarman Thirumulpad v. Union of India (W.P.(Civil) No.202 of 1995).
2.4. Petitioner-company assailed the said letters dated 19.02.2014 and 07.05.2014 before this Court by filing W.P.(C) No. 25350 of 2014. When the matter was sub-judice before this Court, the MoEF & CC issued further guidelines on 10.03.2015, wherein the MoEF & CC held that prior approval of the Central Govt. shall be required under the F.C Act for areas falling in the mining leases, which were or are recorded as 'forest' in the Government record on or after the day the F.C. Act came into force, i.e., on or after 25.10.1980. But, it was directed that the mining operations would be allowed to continue in already broken up area of all such lands for a period of one (1) year from the date of issuance of the guidelines, i.e. up to 09.03.2016.
// 7 // 2.5. In adherence to the guidelines issued by the MoEF & CC, the Forest and Environment Department, Govt. of Odisha issued directions to the Divisional Forest Officers (for short "DFO"), vide notification dated 30.03.2015, to inter alia take follow-up actions, pursuant to the Guidelines dated 10.03.2015 and to verify the position of the broken-up area and instruct the lease holders to ensure compliance of the said Guidelines. As a consequence thereof, the DFO, Cuttack, vide his letter dated 09.04.2015, intimated the petitioner-company that non-forestry activities may only continue till 09.03.2016, as per the MoEF & CC's guidelines, and the petitioner-company was advised to approach the MoEF & CC seeking diversion of the area as per the provisions of the F.C. Act.
2.6. In view of the guidelines of MoEF & CC dated 10.03.2015 and the notification of the Forest and Environment Department, Govt. of Odisha dated 30.03.2015, the petitioner-company withdrew W.P.(C) No.25350 of 2014 on 15.04.2015 with liberty to approach this Court, if any future action of any or all // 8 // the opposite parties so demands. After withdrawal of the said writ petition, petitioner-company started the process for obtaining the forest clearance and accordingly, vide its letter dated 18.05.2015, approached the DFO, Cuttack seeking appropriate direction for allotment of non-forest land for the purpose of compensatory afforestation, which is a mandatory pre-requisite for prior approval of diversion proposal under Section 2 of the F.C. Act. Pursuant to said letter, the DFO, Cuttack, vide letter dated 19.05.2015, issued a demand for Net Present Value (for short "NPV") to the tune of Rs.4,68,06,870/-, which was to be deposited in the Compensatory Afforestation Funds Management and Planning Authority (for short "CAMPA") fund. On the request of petitioner-company, the DFO, Cuttack, vide letter dated 28.05.2015, informed the Collector, Jajpur, Odisha that the petitioner-company had applied for providing non-forest land for raising compensatory afforestation over an area of 64.119 hectares and the DFO requested the Collector, Jajpur to allocate the non-
// 9 // forest land for the purpose of Compensatory Afforestation.
2.7. Petitioner-company, vide its letter dated 27.07.2015, again approached the Collector and District Magistrate, Jajpur, seeking allotment of non-forest land over 64.119 hectares for the purpose of compensatory afforestation. Petitioner-company again requested for allotment of compensatory afforestation land so that it could expedite the process of filing of forest diversion proposal, vide another letter dated 27.07.2015. Petitioner-company had made a detailed representation to the Deputy Director of Mines, Jajpur, requesting that the joint survey of the mining lease area could be conducted so that DGPS survey is completed, which is another mandatory pre-condition for applying for the forest diversion proposal.
2.8 In response to the application of petitioner- company, the Deputy Collector, Revenue Collectorate, Jajpur, vide letter dated 05.08.2015, requested the Tahasildar, Darpan/Dharmasala to identify the area of // 10 // 64.119 hectares of Government non-forest land under his jurisdiction in lieu of forest land to be diverted for the mining lease. Petitioner-company had also deposited an amount of Rs.4,68,06,870/- as NPV and informed the same, vide its letter dated 21.09.2015, to the DFO. On 30.10.2015, the Tahasildar, Sukinda sent to petitioner-company the certificate of the land schedule dated 29.10.2015 in respect of the Kaliapani Chromite Mines having an area of 64.463 hectares. Having completed the mandatory pre-requirements for applying the forest diversion proposal, petitioner-company submitted an online proposal dated 01.01.2016 seeking prior approval of the Central Govt. under Section 2 of the Forest Conservation Act and, thereafter, an online application dated 06.01.2016 was submitted with regard to details of land identified for compensatory afforestation. Since the forest diversion proposal, its preparation, ancillary requirements and processing took multiple processes by different agencies at district level, State level and Central Govt. level and it was an inherently lengthy, cumbersome, complex and time // 11 // consuming process, petitioner-company, vide its letter dated 21.01.2016, requested the Principal Secretary, Forest and Environment Department, Govt. of Odisha seeking extension of 1 (one) year from the time granted, which was due to expire on 09.03.2016. Petitioner- company therein listed out all the steps taken for obtaining required approval and then requested for extension of the time limit in the light of the delay by the various Government agencies, whom petitioner- company had been vigorously pursuing to ensure an early completion of the Forest Diversion Proposal. 2.9. The apex Court in Samaj Parivartana Samudaya v. State of Karnataka, [I.A Nos.204 & 219, 223 & 224 in WP. (C) 562 of 2009], vide its order dated 01.09.2014, recognised that even if all the processes are completed timely by a lessee, the process for obtaining Stage I and Stage II approval takes almost two and a half years. The letter dated 08.09.2014 from the Forest and Environment Department, Government of Odisha to the Principal Chief Conservator of Forests, Odisha goes to show that the Government of Odisha // 12 // was well aware of this order of the apex Court and the amount of time it would take to process both Stage I and Stage II approvals under the F.C. Act. Request of the petitioner-company was forwarded by the DFO, Cuttack to Regional Chief Conservator of Forest, Angul, which was further forwarded to the Principal Chief Conservator of Forests, Odisha and, ultimately, it was forwarded to the MoEF & CC. While the process on the Forest Diversion Proposal was in advance stage, petitioner-company and other similarly situated lease holders received letter dated 22.02.2016 from DDM, Jajpur Road directing them to stop raising and transportation of minerals w.e.f. 10.03.2016 inasmuch as the time granted by the Guidelines dated 10.03.2015 was due to expire on 09.03.2016. Challenging the said letter issued by the DDM, Jajpur Road suspending mining operations, petitioner-company and other similarly situated lease holders filed writ petitions. The writ petition of the petitioner-company was numbered as W.P. (C) No. 4157 of 2016. On 04.03.2016, this Court // 13 // passed an interim order granting status quo with regard to operations of the mines.
2.10 The State Govt., vide its letter dated 29.06.2016, forwarded the forest diversion proposal of the petitioner-company to MoEF & CC. In the said letter, the State Govt. had clearly recorded that the area was treated as non-forest area right from the beginning till the issuance of the Guidelines dated 10.03.2015. The State Govt. and all other concerned agencies have always regarded the subject area as non-forest. The position was changed only in view of the Guidelines issued by the MoEF & CC in the year 2015. The State Govt. also recorded that there is no violation on account of the petitioner-company in the present area. 2.11 The Forest Advisory Committee (for short "FAC") considered the forest diversion proposal of the petitioner-company and recommended the proposal for clearance under the F.C Act with certain guidelines. The State Govt. and the petitioner-company have always maintained that there has been no violation of the F.C. // 14 // Act by the petitioner-company in respect of the subject mining block and accordingly, the petitioner-company protested some of the observations made by the FAC, vide its letter dated 07.10.2016. The said letter was duly forwarded by the State Govt. to the MoEF & CC inter alia accepting the position that there is no violation by the petitioner-company and accordingly, the FAC was requested to review its observations with regard to alleged violations of the F.C. Act. Pursuant to the recommendations made by the FAC, the MoEF & CC granted Stage-I forest clearance to the petitioner- company, vide letter dated 18.11.2016 stipulating as many as 32 conditions, which were to be complied by the petitioner-company. The request of the petitioner- company seeking review of the observations made by the FAC with regard to the alleged violations by the petitioner-company was reconsidered by the FAC and the FAC, vide its Agenda No. 5, bearing File No. 8- 14/2016-FC dated 25.04.2017, accepted the request of the petitioner-company and agreed to constitute a high power committee to decide the policy framework and // 15 // quantum of penalty to be imposed in case of unavoidable violations of provisions of the F.C Act. The FAC further held that the quantum of penalty shall be imposed on the petitioner-company as per the recommendations of the committee so constituted by the FAC.
2.12. The MoEF & CC, vide its letter dated 25.07.2017, issued a modified Stage-I Forest Clearance replacing two conditions stipulated in earlier Stage-I clearance dated 18.11.2016 with regard to alleged violations and it was stipulated in the said letter that the further action will be taken on the issue of the alleged violations only after the receipt of the recommendations of the committee. On 26.10.2017, the committee rendered its final recommendations holding that where the forest land has been changed to non- forest land in Govt. records, as it was done in the present case, no penalty shall be imposed if the violation is not attributable to user agency. Later on, vide Guidelines dated 29.01.2018, the said recommendations were issued by MOEF & CC.
// 16 // 2.13. Petitioner-company was constrained to stop mining operations by virtue of order dated 20.05.2022 passed by this Court in W.P. (C) No. 4157 of 2016, wherein the interim order dated 04.03.2016 passed by this Court was not extended, by which, as an interim measure, petitioner-company was allowed to carry out mining operations and the said writ petition was disposed of as infructuous, vide order dated 12.09.2022. The apex Court, vide order dated 06.06.2022 in SLP (C) No. 10237 of 2022 declined to interfere with the order dated 20.05.2022 passed by this Court in W.P. (C) No. 4157 of 2016. The interim order dated 04.03.2016 was extended from time to time. However, due to inadvertence on the part of the Advocate of petitioner-company, there was no express order to extend the interim order after 17.12.2019. At the same time, on 20.05.2022, there was no order expressing to vacate or discontinue the order dated 04.03.2016. The State Govt. was also under belief that the interim order dated 04.03.2016 continued to operate inasmuch as prior to 06.06.2022, the State Govt.
// 17 // allowed the petitioner to continue its mining operations. Thereafter, a letter dated 06.06.2022 was issued by the Deputy Director of Mines, Jajpur to petitioner-company suspending the mining operations in the subject mineral block due to want of statutory clearance. The position of petitioner-company, since the mining operation was suspended on 06.06.2022, has further developed, inasmuch as, at the time when the order dated 20.05.2022 was passed in W.P. (C)) No. 4157 of 2016 read with the order dated 06.06.2022 in SLP (C) bearing No. 10237 of 2022, there was one condition of Stage I Forest Clearance which was pending for compliance, i.e., the transfer and mutation of land in favour of the Forest Department for compensatory afforestation. But, all the conditions had been complied with and only the formal letter of Stage II Forest Clearance was awaited. Petitioner-company has fully complied with all the conditions stipulated by the MoEF & CC, while granting Stage-I Forest Clearance, and in total the petitioner-company has made payment of Rs.17,39,88,515/- for obtaining the required forest // 18 // clearances. It also obtained all the required statutory clearances, approvals, permissions for resuming the mining operations. It has also made huge investments for restarting its plant, which was closed due to shortage of raw materials, and consecutive operational losses. Now the petitioner has started its operations with great difficulty and is unable to sustain its operations in the absence of source of raw material, i.e. Chromite Ore. It also made huge payments including Rs.69,09,20,000/- to the TP Northern Odisha Distribution Limited Company since 23.09.2022 for the purpose of restarting its plant which was lying non- operational due to shortage of raw material. 2.14. The Principal Chief Conservator of Forest, Nodal Govt. of Odisha, vide letter dated 08.12.2022, reported to the MoEF & CC that petitioner-company has fully complied with all the conditions imposed by the MoEF & CC while granting Stage I clearance. After providing a detailed list of point-wise compliances, the Principal Chief Conservator of Forest, Odisha recommended that in view of the compliance of the // 19 // conditions by the petitioner-company, the MoEF & CC may grant final approval under Section 2 of the F.C. Act for diversion of forest land in the subject mineral block. The authorities have been delaying the process of granting formal approval, which is evident from the letters dated 14.01.2023, 16.02.2023, 21.02.2023 and 20.03.2023 despite clear and unequivocal recommendation by the State Government vide letter dated 08.12.2022. In terms of the CEC's report dated 26.04.2010 submitted to the apex Court in I.A. No.2746-2748 in W.P.(C) No.202 of 1995, the NPV was to be for the entire forest falling within the mining lease and it had to be deposited in the Compensatory Afforestation Fund as a condition for permitting mining in forest land.
2.15. The petitioner-company having complied with all the conditions stipulated by the MoEF & CC and having paid the NPV, it was advised to approach the Forest Bench of the apex Court in T.N. Godavarman Thirumulpad (supra), wherein the apex Court allowed continuation/resumption of mining operations in // 20 // already broken up area subject to payment of NPV and compliance of other conditions. Accordingly, on 28.01.2023, petitioner-company filed I.A. No.21531 of 2023 and I.A. No.21636 of 2023 before the Forest Bench of the apex Court. On 15.03.2023, the apex Court issued notice in the aforesaid I.A. and directed the opposite parties to file their response, but no response was forthcoming nor was the same filed by the opposite parties.
2.16. The apex Court, vide order dated 19.04.2023 passed in I.A. No.21531 of 2023 and I.A. No.21636 of 2023 filed in W.P.(Civil) No.202 of 1995, granted liberty to the petitioner-company to approach this Court. Hence, this writ petition.
3. Mr. N. Gupta, learned Senior Counsel, Mr. S.P. Mishra, learned Senior Counsel, Ms. Pami Rath, learned Senior Counsel and Mr. N. Kumar, learned Senior Counsel appearing along with Mr. M. Mishra, learned counsel for the petitioners contended that the apex Court, vide order dated 19.042023, granted liberty // 21 // to the petitioner-company to approach this Court. It is further contended that the petitioner-company has fully complied with all the 32 conditions of Stage-I forest clearance and is entitled to be granted formal Stage-II forest clearance expeditiously and in a time-bound manner inasmuch as it has already complied with all the requisite conditions of the Stage-I forest clearance. It is further contended that the petitioner-company, having deposited the NVP, payment of compensatory afforestation and other levies, there is no impediment on the part of the Central Government to grant Stage-II forest clearance. Non-grant of forest clearance is an arbitrary action of the authority. It is further contended that the subject mineral bearing area consists of large stretch of already broken up area and the petitioner- company was allowed to continue its mining operations in the said broken up area. Since the petitioner- company has fully and substantially complied with the requirements of Forest (Conservation) Act, 1980, it may be allowed to conduct its mining operations till its application is being processed by MoEF & CC for // 22 // issuance of the formal Stage-II forest clearance. It is further contended that 61.968 hectares out of the total 64.463 hectares is already broken up, as per IBM approved mining plan and worked upon area and, therefore, keeping the same into consideration, the petitioner-company ought to be permitted to resume the mining operations in such worked upon and broken up area till the grant of formal letter of Stage-II forest clearance. It is further contended that the petitioner- company has excavated and stored different grades of Chromite Ore, i.e., approximately 40,000/- MT, which is evident from the closing balance of the month of May, 2022, as per statutory returns filed with IBM. Therefore, it may be allowed to transport and dispose of the said legally excavated minerals for use in its captive plant. It is further contended that the petitioner-company has large number of employees in its plant and mines, who are entirely dependent on the operation of the said plant and the mines for their livelihood. Unless the permission for resumption and to remove and dispatch mineral intended to be used in the Ferro Chrome Plants // 23 // is granted, the employees engaged and employed by the petitioner-company will be heavily prejudiced. It is further contended that the State Government would receive huge amount of revenue in terms of royalty, District Mineral Fund and State GST in case the petitioner-company is allowed to resume its mining operations. As such, it has already made a total payment of approximate Rs.17,39,88,515 for obtaining the required forest clearance. But inaction on the part of the MoEF & CC causes immense difficulties for survival of the industry. It is further contended that in cases where the mining operations were closed due to expiry of lease or due to expiry of statutory clearances, this Court as well as the apex Court has allowed transportation of minerals taking into account the legislative policy enshrined under Rule 12(1)(gg) of the MCR 2016, even where mining operations were closed due to expiry of the mining lease or due to any other reason. It is further contended that as per Rule 12(1)(gg) of the MCR 2016, the lessee may after paying rents, rates and royalties payable under the Act and Rules // 24 // made thereunder or under lease deed, at the expiry or sooner termination of the lease term or within six calendar months thereafter (unless the lease is terminated for default of the lessee, and in that case at any time not less than three calendar months nor more than six calendar months after such termination) take down and remove for its own benefit, all or any ore mineral excavated during the currency of the 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 in or upon the leased lands and which the lessee is not bound to deliver to the State Government or which the State Government does not desire to purchase. To substantiate their contentions, reliance has been placed on Chowgule and Company Private Limited v. Goa Foundation and Others, (2020) 12 SCC 56.
4. Mr. P.K. Parhi, learned Deputy Solicitor General of India along with Mr. S.S. Kashyap, learned Central Government Counsel appearing for opposite // 25 // party no.1 vehemently urged before this Court that the State Government, vide letter dated 08.12.2022 submitted the compliance report vis-à-vis conditions stipulated in Stage-I approval dated 18.11.2016 read with letter dated 25.07.2017, after elapse of six years. But, this opposite party after examination of the compliance report, sought clarification from the State Government, vide letter dated 14.01.2023, as the said report was not complete. It is further contended that the compliance report vis-à-vis Stage I approval dated 18.11.2016 was received from the State Government after a lapse of six years. Sub-rule (2) of Rule-8 of the Forest (Conservation) Rules, 2003 provides certain requirements to be followed and the same having not been done so, no action has been taken from the side of MoEF & CC. It is further contended that the State Government reiterated that the mining operations were running up to 06.06.2022 without a valid approval under Forest (Conservation) Act, 1980. Therefore, the penalties, as prescribed in the conditions of approval, are required to be realized by the State and intimated to // 26 // the MoEF & CC for further necessary action in the matter. Therefore, the MoEF & CC requested the State Government to furnish the requisite information, vide letter dated 20.03.2023 and the reply of the same is awaited. It is further contended that the role of the Central Government is limited, but that has to be in consonance with the provisions of the Act and Rules and more particularly, the State Government has to make compliance so as to extend the benefit to the petitioner-company. The same having not been done so by the State Government till now, the Central Government is not able to take necessary steps for grant of Stage II forest clearance nor grant any permission to the petitioner-company to go on mining operations over the broken up area.
5. Mr. A.K. Parija, learned Advocate General of Odisha along with Mr. P.P. Mohanty, learned Additional Government Advocate appearing for the State-opposite parties contended that the Government of India, Ministry of Environment Forest and Climate Change will take into consideration of the matter after careful // 27 // examination for approval of Stage II under Forest (Conservation) Act, 1980. Moreover, the calculation of value of penal NPV is in process of calculation on the basis of evaluation of quantity of excavated mining material done in violation to the said Act by the petitioner-company. No non-forest activity can be permitted unless final approval granted by the Govt. of India, MoEF & CC as per order dated 06.06.2022 of the apex Court that "under the guise of the order of status quo, the petitioner, who is not having the Forest Clearance cannot be permitted to excavate and/or continue the mining activities". It is further contended that the excavated stock of minerals were produced without forest clearance by the petitioner-company. Till now the petitioner-company has not obtained forest clearance from MoEF and CC. Therefore, the contentions raised that the petitioner-company to remove and dispatch those excavated materials in absence of forest clearance is not permissible in view of the provisions of F.C. Act, 1980 and the aforesaid order of the apex Court. It is further contended that the plea // 28 // taken by the petitioner-company that continuation/resumption of mining operations by some of the lease holders without having forest clearance is not a fact. It is further contended that in the order of the apex Court, not only the payment of NPV or Compensatory Afforestation are important, but also satisfactory compliances of all the conditions/observations raised by the authorities, prior to Stage II approval are equally important for final approval of diversion of the forest land for non-forest uses, i.e. forest clearances. In the instant case, the payment of penal NPV by the petitioner-company is still outstanding as observed by the MoEF & CC and under process. It is further contended that in the order dated 06.06.2022, the apex Court clearly observed that "under the guise of the order of status quo, the petitioner, who is not having the Forest Clearance cannot be permitted to excavate and/or continue the mining activities". Therefore, without Stage II clearance, the petitioner- company is not entitled to operate the mines as well as removal of ore. It is further contended that the // 29 // petitioner has not complied with the conditions of payments of penal NPV, and still in process of representation to MoEF & CC to consider for exemption and any mining activities without forest clearance will violate the aforesaid ruling of the apex Court and the provisions of the F.C. Act, 1980. Thereby, it is contended that unless the petitioner-company complies with the statutory requirements, it cannot be granted permission either to operate the broken up area or to go for mining.
6. This Court heard Mr. N. Gupta, learned Senior Counsel, Mr. S.P. Mishra, learned Senior Counsel, Ms. Pami Rath, learned Senior Counsel and Mr. N. Kumar, learned Senior Counsel appearing along with Mr. M. Mishra, learned counsel for the petitioners; Mr. P.K. Parhi, learned Deputy Solicitor General of India along with Mr. S.S. Kashyap, learned Central Government Counsel appearing for opposite party no.1 and Mr. A.K. Parija, learned Advocate General of Odisha along with Mr. P.P. Mohanty, learned Additional Government Advocate appearing for the State-opposite // 30 // parties in hybrid mode. The pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission.
7. There is no dispute with regard to the factual matrix of the case, as mentioned above. It is the admitted fact that after granting Stage I forest clearance, Stage II forest clearance from the forest authorities is pending and, as such, the conditions stipulated to be complied with and the same has already been done except to which has got relaxation, as has been pointed out by the learned Senior Counsel appearing for the petitioners. Therefore, there is no impediment on the part of the Central Government to grant Stage II clearance for mining operation.
8. While entertaining the writ petition, this Court passed an order on 15.05.2023 to the following effect:
"This matter is taken up through hybrid mode.
// 31 //
2. Heard Mr. Pinaki Mishra, learned Senior Counsel along with Mr. Nabin Kumar, learned counsel appearing for the petitioners; Mr. P.K. Parhi, learned Deputy Solicitor General of India appearing for opposite party no.1 and Mr. P.P. Mohanty, learned Additional Government Advocate along with Mr. A.K. Parija, learned Advocate General of Odisha appearing for the State-opposite parties no.2 to 4.
3. The petitioners have filed this writ petition seeking direction to opposite party no.1 to grant the formal letter of Stage-II Forest Clearance to the petitioner-company in respect of the Subject Mineral Block over an area of 64.463 ha. situated in Kaliapani village under Sukinda Tahsil of Jajpur district in the State of Odisha in a time-bound manner within a period of three months, as the petitioner-company has already complied with all the essential and necessary conditions of Sage-I Forest Clearance.
4. Mr. Pinaki Mishra, learned Senior Counsel appearing for the petitioners contended that in a similar case, i.e. Writ Petition (Civil) No.202 of 1995 (T.N. Godavarman Thirumulpad v. Union of India), the petitioner therein filed I.A. Nos.168479 and 168463 of 2021 and the apex Court, vide order dated 02.05.2022, issued direction to the following effect:
"Subject to the compliance of other conditions to be imposed by the Ministry of Environment, Forest and Climate change and payment of Rs.6,15,81,436/-, the State government is directed to pass suitable orders for diversion of 54.668 ha. of forest land for non-
forestry use."
It is further contended that the petitioner in the aforesaid case also filed I.A. No.21531 of 2023 and the apex Court, vide order dated 19.04.2023, issued following direction:
"1. In view of the subsequent development, learned counsel for the application seeks permission to withdraw this application, with liberty to approach the High Court afresh.
2. Permission is granted.
// 32 //
3. The application is, accordingly, disposed of with the liberty as prayed for.
4. The applicant is also at liberty to file a fresh application before this Court, if the grievance of the applicant is not redressed."
It is further contended that in view of the above orders passed by the apex Court, the petitioners have approached this Court by filing this writ petition, as the State Government, having considered the petitioner's application for diversion of 64.119 ha of Sabik Kisam forest land, as on 25.10.1980, within total mining lease area of 64.463 ha for Chromite mining in Kaliapani Chromite Mines of Stage-I, has recommended to opposite party no.1-Central Government vide Annexure-5 dated 08.12.2022, but the Central Government is sitting over the matter without considering such recommendation. It is further contended that the petitioner-unit is using the Chromite mining for captive purpose. Once the petitioner unit is using the Chromite mines for captive purposes, there is no difficulty on the part of the State Government and the Central Government to grant formal letter of Stage-II Forest Clearance to the petitioner-company in respect of the Subject Mineral Block over an area of 64.463 ha. situated in Kaliapani village under Sukinda Tahsil of Jajpur district.
5. Mr. P.K. Parhi, learned Deputy Solicitor General of India appearing for opposite party no.1 contended that he has received the copy of the writ petition and he seeks ten days time to obtain instructions in the matter.
6. Issue notice to the opposite parties both in main case and Interlocutory Application.
7. Let two extra copies of the writ petition be served by tomorrow (16.05.2023) on Mr. P.K. Parhi, learned Deputy Solicitor General of India to enable him to obtain instructions or file counter affidavit.
8. Let four extra copies of the writ petition be served by tomorrow (16.05.2023) on learned Additional Government Advocate, as he appears for opposite parties no.2 to 4 to enable him to obtain instructions or file counter affidavit.
// 33 //
9. Put up this matter after 10 days.
However, it is open to the petitioners to move before the Vacation Court for interim order, if they are so advised."
9. On 13.09.2023, this Court passed the following order:
"This matter is taken up through hybrid mode.
2. Mr. P.K. Parhi, learned Deputy Solicitor General of India appearing for Union of India contended that he has received copy of the rejoinder affidavit filed by the Petitioner and also sought for instruction but he has not been possessed with such instruction. Therefore, he prays for two weeks' time to obtain instruction.
3. This Court is not inclined to grant two weeks' time, rather ten days' time is granted to him to obtain such instruction.
4. Needless to say Mr. P.K. Parhi, learned DSGI shall also obtain instruction with regard to the transportation of the extracted minerals which are lying in the mining area.
5. List this matter after ten days."
10. This Court passed an order on 29.09.2023, which reads as follows:-
"This matter is taken up through hybrid mode.
2. Mr. S. Dave, learned Senior Advocate appearing for the petitioner contended before this Court that though 1 st Stage clearance has been granted long since, but for the reasons best known, the 2nd Stage clearance is not being granted, even though the same is pending before the Central Government since 18.02.2022. In view of such position, the value of the excavated minerals which are lying in the mining area are going to be diminished.
3. Mr. S. S. Kashyap, learned Central Government Counsel prayed for a short // 34 // adjournment to obtain instruction and file the same by way of affidavit.
4. In view of the above 10 (ten) days time is granted to learned Central Government Counsel to furnish the instruction by way of affidavit or else on the next date if he will ask for filing of the affidavit, no adjournment will be made on that ground.
5. Call this matter after ten days."
11. The Government of India, Ministry of Environment, Forests and Climate Change (Forest Conservation Division), vide Annexure-4 dated 18.11.2016 granted Stage I permission to the petitioner- company. While considering Stage II permission, certain conditions are required to be complied and, as such, the petitioner-company has complied with the same, as per letter dated 08.12.2022 under Annexure-5. Condition no.(vii) thereof reads as follows:
"Condition No. (vii) :- The User Agency shall transfer online, the Net Present Value (NPV) of the forest land being diverted under this proposal, as per the orders of the Hon'ble Supreme Court of India 28.03.2008, 24.04.2008 and 09.05.2008 in Writ Petitioner (Civil) No.202/1995 and guidelines issued by this Ministry vide its letter No.5-3/2007-FC dated 05.02.2009.
The requisite funds shall be transferred through online portal into Ad-hoc CAMPA account of the State Concerned.
Compliance:- In compliance to the above, the RCCF, Angul Circle has reported that the user agency has transferred an amount of Rs.7,16,14.567/- (seven Crore Sixteen Lakhs Fourteen Thousand Five Hundred Sixty-Seven // 35 // only ) in the accounts of Ad-hod CAMPA as per there guidelines issued by this Ministry vide letters No.5-./2011-FC (vol.) dated 06.01.2022 and 19.01.2022.
Mode of
Demand letter by payment
Demand in Rs.
DFO, Cuttack made by user
agency
RTGS
Letter No.4732 No.SBIN5201
4,68,06,926
dated 19.05.2015 50923202844
20
UTR
Letter No.5770 No.UBIN0996
2,48,07,641
dated 02.07.2022 335 dated
18.10.2022
Besides, the user agency has furnished an undertaking to deposit all compensatory levies through e-payment module.
Copies of the payment details and undertaking are enclosed as Annexure-VII."
12. Page-93 of the brief which forms part of Annexure-5 dated 08.12.2022, the conditions for compliance mentioned therein reads as follows:
"In view of the above, the compliance to the conditions imposed by the GoI, MoEF & CC, New Delhi and State Government is sent herewith for favour of kind information and according final approval for diversion of 64.119 ha of Sabik Kisam forest land as on 25.10.1980 within total mining lease area of 64.463 ha for Chromite mining in their Kaliapani Chromite Mines by M/s Balasore Alloys Ltd. in Jajpur district, Odisha."
13. In letter dated 16.02.2023, wherein certain queries made by the Central Government have been meted out by the State Government, the "Observation vi"
at page 320 of the brief reads as under:-
// 36 // Observation vi:- Stage-I compliance report has been submitted after lapse of a period of more than 6 years; valid and cogent justification for delay needs to be submitted by the State for the aforesaid lapse of more than six years. The State Government may also revisit the various project parameters considered at the time of grant of Stage-1 approval viz number of projects affected trees, suitability of CA land, etc and accordingly, intimate the change in any of the parameters, if any, to the Ministry Compliance:- In compliance to this observation, the RCCF, Angul has reported that the User Agency has submitted their representation regarding justification for delay to submit the compliance of Stage-I approval order. The User Agency has clarified that due to Covid-19 pandemic, transfer and mutation of CA land, financial crisis and the stay order of Hon'ble High Court, Orissa have caused the delay process to submit the compliance. The ML area of 64.463 has already been broken up after commencement of mining operation since September, 2000, and only 244 nos. of sound trees were found during trees were found during tree enumeration. Moreover, Compensatory Afforestation land was re-visited by the Competent Authority and accordingly the Scheme has been revised as per present guidelines with respect to letter from PCCF (Nodal) vide Memo No:-17224 dated 05.09.2022. The same land is found suitable for compensatory afforestation. The representation of the User Agency is enclosed as Annexure-VI and uploaded in the Parivesh Portal.
As informed by user agency some of the conditions stipulated in the stage-l order remained non-compiled for an extended period due to the financial crisis arising from the recession in the market followed by flood & Covid-19. In the mid of 2019, heavy rains led to a situation beyond the Control of UA Balasore Alloys Ltd.
Since then, UA Balasore Alloys Ltd's business has suffered drastically and could not make payments for the power supply. NESCO (Now Tata Power) disconnected the power supply at // 37 // Balasore Alloys Ltd's ferroalloys Plant at frequent intervals and it was forced to shut down its operations at plant and mines as the mines is a captive one and all the revenue streams of organization were blocked. Further due to non-extension of interim order of the Hon'ble Court to operate the mine, the mining operation was suspended, which also led to financial crisis to Balasore Alloys Ltd and there caused the delay to comply the Stage-I conditions.
In view of the above, the compliance to the observations of Government of India, MoEF & CC, New Delhi is sent herewith for according final approval for non-forestry use of 64.119 ha of Sabik Kisam Forest land as on 25.10.1980 within total mining lease area of 64.463 ha for Chromite mining in their Kaliapani Chromite Mines by M/s Balasore Alloys Ltd in Jajpur District, Odisha."
14. In view of the above observation, there is no iota of doubt that whatever requirement is to be complied with, the same is being complied with by the State Government and communication was also made to the Central Government for necessary permission by granting Stage II clearance. Needless to say, earlier the petitioner-company had approached this Court by filing W.P.(C) No.4157 of 2016, wherein status quo order was granted for a specific period. After 2019, the said interim order was not extended and consequentially, this Court had not extended the interim order after 17.12.2019 and the matter was ready for hearing. Thereby, this Court // 38 // directed the matter to be heard on 20.05.2022, but the petitioner-company withdrew the said writ petition on 12.09.2022 stating that it has become infructuous. Accordingly, the said writ petition was disposed of as infructuous. Against non-extension of interim order passed in W.P.(C) No.4157 of 2016, the petitioner- company approached the apex Court by filing SLP(C) No.10237 of 2022 and the apex Court on 06.06.2022 passed the following order:
"It is not in dispute that the petitioner is not having the Forest Clearance at this stage. Merely because the application for Forest clearance is pending cannot be treated as having obtained the forest Clearance permitting the petitioner to carry on the excavation and the mining activities. Under the guise of the order of status quo, the petitioner, who is not having the Forest Clearance cannot be permitted to excavate and/or continue the mining activities. Therefore, as such, the High Court has rightly not extended the order of status quo.
At this stage, learned counsel appearing on behalf of the petitioner seeks permission to withdraw the present Special Leave Petition as the main petition is yet to be considered by the High Court on merits. Permission is, accordingly, granted. The Special leave Petition stands dismissed as withdrawn.
Before parting with the present order, we request the High Court to decide and dispose of all such pending matters where the order of status quo is continued since long and the mining activities have been continued under the order of status quo without Forest Clearance, within a period of six months from today without fail.
// 39 // With this, the present Special Leave Petition stands dismissed as withdrawn."
15. After this order was passed by the apex Court, the petitioner-company withdrew W.P.(C) No.4157 of 2016 on 12.09.2022 as infructuous. Therefore, the said writ petition was not decided finally on merits. The present writ petition has been filed by the petitioner-company with similar nature of prayers when Stage II clearance was not granted by the Central Government. It is, therefore, contended that so far as broken up area is concerned, there is no impediment on the part of the authorities to grant such permission and, as such, reliance has been placed on Chowgule and Company Private Limited (supra), paragraphs-32-34 whereof read as follows:
32. It could thus be seen that the Division Bench which had delivered the judgment in Goa foundation (2) by subsequent orders dated 4-4-
2018 and 11-5-2018 has permitted the iron ore which was royalty paid and which was lying on the jetties on or before 15-3-2018 to be loaded on the barges and on the vessels so that it can be transported to their destinations.
33. It will also be relevant to refer to Rule 12(1)(gg) of the said Rules:
"12 Terms and conditions of a mining lease.- (1) Every mining lease shall be subject to the following conditions:
(a)-(ff) x x x (gg) the lessee may, after paying the rents, rates and royalties payable under the Act and Rules made thereunder or under the lease // 40 // deed, at the expiry or sooner termination of the lease term or within six calendar months thereafter (unless the lease is terminated for default of the lessee, and in that case at any time not less than three calendar months nor more than six calendar months nor more than six calendar months after such termination ) take down and remove for its own benefit, all or any ore mineral excavated during the currency of the lease, engines, machinery, plant, buildings structures, tramways, railways and other works, erections and conveniences which may have been erected, setup or placed by the lessee in or upon the leased lands and which the lessee is not bound to deliver to the State Government or which the State Government does not desire to purchase."
34. A perusal of clause (gg) of Rule 12(1) of the said Rules would reveal that on the expiry or sooner termination of the lease term, six months' period is granted to the lessees to remove for its own benefit, all or any ore mineral excavated during the currency of the 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 in or upon the leased lands. An exception is carved out in case of lease being terminated for default of the lessee paying the rents, rates and royalties payable under the Act and the Rules made thereunder."
Thereby, it is contended that in view of provisions contained in Rule 12(1)(gg), at the expiry or sooner termination of the lease term or within six calendar months thereafter (unless the lease is terminated for default of the lessee, and in that case at any time not less than three calendar months nor more than six calendar months after such termination) take down and remove for its own benefit, all or any ore mineral // 41 // excavated during the currency of the 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 in or upon the leased lands and which the lessee is not bound to deliver to the State Government or which the State Government does not desire to purchase. Relying upon such provision, the apex Court in paragraph-39 in the said judgment, directed that all such transportation shall be completed within a period of six months from the date of passing of the said order. Thereby, it is contended that whatever minerals have been excavated and stacked should be granted permission to remove the same. But fact remains, till date the petitioner-company has not got Stage II clearance from the MoEF & CC and thus any removal of minerals without getting clearance from the authorities will be in violation of the F.C. Act, 1980. Therefore, this Court is refrained from issuing any such direction for removal of the stacked minerals, as have been excavated // 42 // by the petitioner-company, as claimed in the writ petition.
16. Learned Senior counsel appearing for the petitioners persuaded this Court with emphasis stating that due to inaction of opposite party no.1, the petitioner-company is suffering a lot. Therefore, this Court should issue a writ of mandamus for compliance forthwith.
17. HALSBURY, 4th Edn., Vol-1, Para 89, p.111, while extending mandamus, it states as follows:
"The order of mandamus is an order of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."
18. Halsbury's Laws of England, 4th Edn. (Re- issue), Vol-1(1) Para 133 states mandamus as follows:
"Mandamus (mandatory order) is of a most extensive remedial nature, and is, in form, a // 43 // command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing specified in it which appertains to his or their office and is in the nature of a public duty."
19. In Controller and Auditor-General of India v. K.S. Jagannathan, (1986) 2 SCC 679 : AIR 1987 SC 537, the apex Court held as follows:
"The High Courts exercising their jurisdiction under Article 226 have power to issue a writ of mandamus or in the nature of mandamus where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion malafide or on irrelevant consideration. In all such cases, the High Court can issue writ of mandamus and give directions to compel performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority. In appropriate cases, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed, had it properly and lawfully exercised its discretion. Supreme court went to the length of even giving direction to promote the respondents as they had been wrongfully denied the same."
18. In Directors of Settlements, Andhra Pradesh v. M.R. Appa Rao, (2002) 4 SCC 638 : AIR 2002 SC 1598, the apex Court held as follows:
"One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, // 44 // existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus, "Mandamus" means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law."
19. In Union of India v. S.B. Vora, AIR 2004 SC 1402, the apex Court held as follows:
"Mandamus literally means a command. It's object is to prevent disorder from failure of justice. Writ of mandamus is required to be granted in all cases where law has established no specific remedy. It is issued in favour of a person who establishes a legal remedy in himself and against a person who has a legal duty to perform but has failed or neglected to do."
20. In National Textile Corpn. Ltd. v. Haribox Swalram, (2004) 9 SCC 786 : AIR 2004 SC 1998, the apex Court held as follows:
// 45 // "A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted. However, ordinarily the court will not exercise the power of the statutory authorities. It will at the first instance allow the statutory authorities to perform their own functions and would not usher the said jurisdiction itself. In order that a mandamus is issued to compel the authorities to do something, it must be shown that there is a statute, which imposes a legal duty, and the aggrieved party has a legal right under the statute to enforce its performance. A pure and simple business contract cannot be enforced by a writ."
21. Keeping in view the aforementioned provisions, it is made clear that this Court has jurisdiction to issue mandamus to the opposite parties to carry out their statutory duties in accordance with law. Since there is inaction on their part causing harassment to the petitioner-company, then the writ of mandamus can be issued to command opposite parties to discharge their duties in conformity with the provisions of law.
22. In view of such position, this Court directs the opposite parties to grant necessary Stage II forest // 46 // clearance in respect of subject mineral block over an area 64.463 hectares situated in Kaliapani Village in Sukinda Tehsil of Jajpur District in the State of Odisha by complying all the formalities as expeditiously as possible without creating further hindrances in the matter.
23. Accordingly, the writ petition stands disposed of. But, however, in the circumstance of the case there shall be no order as to costs.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
Orissa High Court, Cuttack
The 3rd November, 2023, Alok
Signature Not Verified
Digitally Signed
Signed by: ALOK RANJAN SETHY
Designation: Secretary
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 03-Nov-2023 16:02:30