Jharkhand High Court
Ms Hindalco Industries Limited Through ... vs The State Of Jharkhand Through Chief ... on 13 October, 2017
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 6046 of 2017
M/s Hindalco Industries Limited, having its office at Vasundhara Mega
Mart, 2nd Floor, Near Argora Chowk, P.O. Argora, P.S. Argora, District
Ranchi through its President (Mines) Sri Bijesh Kumar Jha, son of Sri S.N.
Jha, resident of Vasundhara Mega Mart, 2nd floor, Near Argora Chowk,
P.O. Argora, P.S. Argora, District Ranchi
... ... .. Petitioner
Versus
1.The State of Jharkhand through the Chief Secretary, having its office at
Project Building at Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, Dist. Ranchi
2.Secretary, Mines and Geology, Government of Jharkhand, having its
office at Project Building at Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur,
Dist. Ranchi
3.Secretary, Forest & Environment, Government of Jharkhand, having its
office at Nepal House, Doranda, Ranchi
4.Deputy Commissioner, Palamau, at Medini Nagar, Dist. Palamau
5.Divisional Forest Officer, Palamau, at Medini Nagar, P.O. Medini
Nagar, P.S. Sadar, Dist. Palamau ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Anil Kumar Sinha, Sr. Advocate
Mr. Vijay Kant Dubey, Advocate
For the Respondents : Mr. Ajit Kumar, A.G.
Mrs. Aprajita Bhardwaj, J.C. to A.G.
2/13.10.2017The present writ petition has been filed mainly for quashing the order contained in memo no. 4008 dated 03.08.2017 (Annexure-6) issued by the Divisional Forest Officer, Medninagar, Palamau, whereby to the petitioner has been directed to forthwith stop the mining activity and to seek permission from the Union of India so as not to violate the provisions of Section 2 of the Forest (Conservation) Act 1980. Further prayer has been made for quashing of the order contained in letter/memo no. 1912 dated 09.10.2017 (Annexure-7) issued by the Deputy Commissioner, Palamau whereby the petitioner has again been asked to stop mining operation in Kathautia Coal Block.
2. Mr. Anil Kumar Sinha, learned senior counsel for the petitioner submits that the petitioner is engaged in the business of manufacture of alumina and Aluminium and its products which has its own captive power plants. The coal block known as Kathautia Coal Block was initially allocated to M/s Usha Martin Ltd. (UML) in the month of September 2003. The said company appears to have obtained 2 environmental clearances from the Ministry of Environment, Forest and Climate Change, Government of India on 19.06.2006 and while granting the said clearances, there was no mention of any forest land falling within the said Coal Block. Thus a mining lease was executed in favour of M/s Usha Martin Ltd. on 15.10.2007 and pursuant thereto, the said company started its mining operation from mid of 2008 to early 2009. Subsequently in terms with the judgment dated 25.08.2014 and order dated 24.09.2014 passed by the Hon'ble Supreme Court in S.L.P. (Crl.) No. 120 of 2012 in the case of Manohar Lal Sharma vs. Union of India reported in (2014) 9 SCC 516 and (2014) 9 SCC 614 respectively, the coal block allocated to the M/s Usha Martin Ltd. stood cancelled. Thereafter, the Coal Mines (Special Provisions) Ordinance, 2014 [later on replaced by Coal Mines (Special Provisions) Act, 2015] and the Rules made thereunder were brought into effect by the Government of India. In terms thereof, the said Coal Block was put on auction and the petitioner being eligible and interested, participated in the auction process. The petitioner was declared successful and the Coal Block was allocated in favour of the petitioner and an agreement for Coal Mine Development and Production by and between President of India acting through Nominated Authority and the petitioner was executed on 02.03.2015 with respect to the matters related to allocation of coal mine, including without limitation development of the coal mine and production and utilisation of coal from the coal mines. Thereafter, the nominated authority in accordance with the provisions of Clause (b) of sub-rule (2) of rule 7 and sub-rule (1) of rule 13 of Coal Mines (Special Provisions) Rules, 2014 issued a vesting order on 23.03.2015 in favour of the petitioner on furnishing a performance bank guarantee for an amount of Rs. 267,88,80,000/-(Rs. Two hundred sixty seven crore eighty eight lakh and eighty thousand) in accordance with tender document and in accordance with the provisions contained therein. The petitioner took the possession of the coal block on 01.04.2015 and continued to be in possession thereof. Though initially some doubt was raised with respect to some part of mining lease area being of 'Jungle Jhari' in nature, however, after due deliberation, the Chief Secretary, Government of Jharkhand in the meeting held on 30.11.2015 directed the Secretary, Dept. of Revenue and Land Reforms, Government of India, to expedite the process of survey and settlement of the land to 3 resolve the issue. Thereafter, the Survey and Settlement in terms of the provisions of Chhotanagpur Tenancy Act 1908, was finalized , on 09.06.2016, inter alia, for four villages which would cover the mining lease area and it was recorded therein that no "Jungle-Jhari" land was found in the said four villages. It is also worthwhile to mention that no suit or proceedings under Section 87 of the CNT Act has been filed challenging the said Revisional Survey and, thus, the entry made in the records pursuant to the Revisional Survey has attained finality. Based on the aforesaid revisional survey and revised land schedule, the State of Jharkhand executed a mining lease in favour of the petitioner on 07.10.2016. Thereafter, the petitioner started mining operations and has invested crores of rupees for the mining infrastructure and other ancillary works. It is further submitted that through the vesting order, the rights, title and interest of the prior allottee (M/s Usha Martin Ltd.) in and over the land free from all encumbrances got vested with the petitioner. The land details annexed with the vesting order also does not contain any forest or 'Jungle Jhari' over the said land. After commencement of the mining operation, astonishingly the petitioner received a letter bearing memo no. 728 dated 12.07.2017 (Annexure-3 to the writ petiton) issued by the Deputy Commissioner, Palamau (who himself had executed the mining lease with the petitioner) informing that out of 687.93 hectares of the leased land, 344.16 acres was recorded in the earlier survey as 'Jungle Jhari'. However, in the recent revisional survey, the nature of the said land has been changed as 'Non-deemded forest'. It would further be evident from the said letter dated 12.07.2017 that the Deputy Commissioner himself was not sure as to whether in such a situation is there any requirement of taking forest clearances under Section 2 of the Forest (Conservation) Act 1980 or not. However, the Deputy Commissioner, directed the petitioner that it should not carry out any mining operation so far as area 344.16 acres is concerned till the prior permission of the Central Government is taken under Section 2 of the said Act. Subsequently, the Divisional Forest Officer, Medninagar Forest Division, Medninagar issued a letter bearing memo no. 4008 dated 03.08.2017 (Annexure-6 to the writ petition) informing inter alia that as per the direction of the Central Government, if the project involves forest as well as non-forest land, work should not be started on non-forest land, 4 till approval of the Central Government for release of forest land under the Act is granted. Accordingly, the petitioner was directed to stop the mining operation in the entire leased land of 687.93 hectares. Thereafter a similar letter was issued by the Deputy Commissioner vide letter no. 1912 dated 09.10.2017 (Annexure-7 to the writ petition).
3. Learned senior counsel for the petitioner further submits that so far as leased mining area is concerned, all the statutory clearances were already taken by the earlier allottee (M/s Usha Martin Ltd.) and therefore it was most unreasonable and arbitrary on the part of the Deputy Commissioner and the Divisional Forest Officer to direct the petitioner to stop the mining operation in the entire leased land. Learned senior counsel for the petitioner also submits that it has not been made clear through the aforesaid letters issued by the Deputy Commissioner, as well as the Divisional Forest Officer regarding the context of direction given by the Central Government on the basis of which the aforesaid letters are said to have been issued to the petitioner. If at all, as per the state authorities, some part of the leased area was to be considered as 'Jungle- Jhari' (which is not the fact as per the revisional survey), the state government should not have executed the mining lease in favour of the petitioner. The petitioner has made huge investment in the said mining work and has been continuously paying royalty to the State Government. Moreover, about 10,000 workers are employed in different establishments of the petitioner based on the said mines and if the mining operation of Kathautia Coal Block is not resumed, the said workers would go jobless and face starvation. It is further submitted by the learned senior counsel for the petitioner that the petitioner undertakes that till the adjudication of the present case, the petitioner shall not undertake any mining operation so far as leased area of 344.16 acres which is said to be 'deemed forest'/"Jungle Jhari" is concerned. It is lastly submitted that in the present context there is no chance of any adverse environmental impact if the mining operation is allowed to be continued so far as undisputed non forest land of leased area is concerned.
4. Mr. Ajit Kumar, learned Advocate General appearing on behalf of the State of Jharkhand submits that since the letter of the Deputy Commissioner as well as Divisional Forest Officer is based on the instruction issued by the Central Government, the petitioner may be 5 directed to implead Union of India through Secretary, Ministry of Environment Forest and Climate Change, New Delhi as respondent no. 6. Learned Advocate General further submits that impugned orders have been rightly issued by the Authorities, as permission under Section 2 of the Forest (Conservation) Act 1980 has not been taken by the petitioner so far as present mining lease is concerned and thus opposes the interim prayer made on behalf of the petitioner.
5. Accordingly, the petitioner is directed to implead Union of India through Secretary, Ministry of Environment Forest and Climate Change, New Delhi as respondent no. 6 in course of the day. Mr. Rajiv Sinha, Assistant Solicitor General of India appears and accepts notice on behalf of newly added respondent no. 6.
6. Learned Assistant Solicitor General of India and Advocate General pray for and are allowed four weeks' time to file detailed counter-affidavits.
7. Put up this case on 12.12.2017.
8. In the meantime, operation of the impugned letter contained in memo no. 4008 dated 03.08.2017 (Annexure-6) issued by the Divisional Forest Officer, Medninagar, Palamau, and letter/memo no. 1912 dated 09.10.2017 (Annexure-7) issued by the Deputy Commissioner, Palamau shall remain stayed subject to the condition that the petitioner shall not undertake any mining operation so far as 344.16 acres of leased area which is said to be recorded as 'Jungle Jhari' in the earlier survey.
(Rajesh Shankar, J.) Binit/