Orissa High Court
M/S. Mideast Integrated vs State Of Odisha & Others ........ Opp. ... on 18 May, 2018
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No. 1549 of 2018
AFR
In the matter of an application under Article 226 of the
Constitution of India.
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M/s. Mideast Integrated ........ Petitioner Steel Ltd.
-Versus-
State of Odisha & others ........ Opp. Parties For Petitioner : Mr. S. Mohanty, Sr. Advocate along with M/s. R.R. Swain, I.A. Acharya and A. Dash, Advocates For Opp. Parties : Mr. B.P. Pradhan, Addl. Govt. Advocate
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PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR. VINEET SARAN AND THE HONOURABLE DR. JUSTICE B.R. SARANGI
--------------------------------------------------------------------------- Date of hearing: 16.05.2018 :: Date of judgment: 18.05.2018
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DR. B.R. SARANGI, J, The petitioner M/s Mideast Integrated Steel Ltd. a company incorporated under the provisions of Companies Act, 1956, is a lessee in respect of an iron ore 2 mines, namely, Roida-I, Iron Ore Mines over an area of 104.68 hectares, situated in the district of Keonjhar, State of Odisha and also engaged in manufacturing of all kinds of steel, pig iron, sponge iron by setting up an integrated steel plant at Duburi at Jajpur Road in the State of Odisha.
Initially the said mining lease was granted in favour of M/s K.N. Ram for a period of 30 years from 23.01.1953 to 22.01.1983. The first renewal of the said mining lease was granted by the State Government over the selfsame area of 104.68 hectares for a further period of 20 years i.e., from 23.01.1983 to 22.01.2003. During the period of first renewal, pursuant to approval dated 20.05.1996 of Central Government on 30.08.1996, the State Government issued order of transfer of the Roida-I iron ore mines in favour of the present petitioner company from M/s K.N. Ram, the lessee. Accordingly, a deed of transfer of mining lease was executed in Form-O between the preset petitioner company, M/s K.N. Ram and Government of Odisha on 31.10.1996 for the remaining period of the first renewal i.e. up to 22.01.2003. 3
2. Before expiry of such lease period on 25.11.2002, the petitioner company submitted an application in Form-J for renewal of the mining lease over the same area of 104.68 hectares as required under Rule 24A(1) read with Rule-24A (10) of the Mineral Concession Rules, 1960. Such renewal application dated 25.11.2002 is pending before the State Government and the petitioner company has worked the Roida-I iron ore mines from 22.01.2003 to 17.05.2014 as per the provisions of deemed extension as contained under Rule- 24A (6) of the Mineral Concession Rules, 1960. The petitioner company-lessee has got statutory approval/clearances from appropriate authorities for carrying out mining operation over 104.68 hectares in Roida-I iron ore mines. The Indian Bureau of Mines on 27.07.2016 has approved the mining plan in respect of mining lease of Roida-I iron ore mines over an area of 104.68 hectares which is valid upto 31.03.2018. The forest clearance for 51.99 hectares granted by Ministry of Environment and Forest, Govt. of India on 19.02.2008. The consent to operate granted by State Pollution Control Board, Odisha which was renewed from time to time and the last 4 consent to operate was granted vide letter dated 04.05.2017, which was valid up to 31.03.2018.The petitioner company has paid Rs.7,64,16,400/- towards NPV in respect of the entire forest land of 104.68 hectares involved in Roida-I iron ore mines. Since the application dated 25.11.2002 is for second renewal of mining lease for the period from 23.01.2003 to 22.01.2023, mining operation in Roida-I iron ore mines was stopped by the Deputy Director of Mines, Joda vide its letter dated 17.05.2014 pursuant to order of the apex Court dated 16.05.2014 passed in W.P.(C) No.114 of 2014, wherein it has been directed that "......26 leases operating as second and subsequent renewals without any express orders of renewal passed by the State Government will not be allowed to operate by the State Government until express orders are passed in terms of Section 8 (3) of the Mines and Minerals (Development and Regulation) Act, 1957". The petitioner company name found place at serial no.2 out of the said 26 leases. Consequentially, by virtue of the letter dated 17.05.2014, the Deputy Director of Mines, Joda has stopped the mining operation but during continuation of 5 lease the petitioner company had legally raised, processed and stacked 20,26,357 MT of iron ore lump and fines of different grade and size at the dispatch point of Roida-I iron ore mines.
3. Prior to stoppage of mining operation, the petitioner company has obtained transit permit in respect of 1,56,756 MT of iron ore lump and fines under the provisions of the Rules, 2007 upon payment of royalty of Rs.4,10,08,058.52 for onward transportation to various buyers/consumers so also the steel plant of the petitioner company. Out of 1,56,756 MT of iron ore lump and fines for which transit permits were issued, only 2711.01 MT of iron ore lump and fines were lifted during the validity period but remaining iron ores could not be lifted due to non availability of railway rakes and due to restriction imposed by the State Government regarding truck movement in National Highway No.215. After 17.05.2014, transportation of balance 1,54,045 MT of iron ore lump and fines which have valid transit permit has not been allowed by opposite party no.3.Consequentially, on 30.05.2014, the petitioner company submitted a 6 representation to opposite party no.2 and by letter dated 25.08.2014 requested the Deputy Director of Mines, Joda to issue transit permit for transportation of materials raised and stacked prior to 17.05.2014. Due to inaction of opposite party on 25.08.2014, the petitioner company submitted a representation to opposite party to issue necessary direction to the opposite parties no.2 and 3 to allow the petitioner company to lift and transport 20,26,357 MT of iron ore lump and fines of different grade and size which were raised, processed and stacked prior to 17.05.2014 when the mining operation in Roida-I iron ore mines was directed to be stopped. Against such inaction, the petitioner approached this Court by filing W.P.(C) No.17541 of 2014 with a prayer to lift/ transport the iron ore lump and fines of different grade and size from Roida-I iron ore mines, which was raised/excavated, processed and stacked prior to 17.05.2014. After hearing, this Court vide judgment dated 04.03.2015 disposed of the said writ petition with a direction to the State Government to dispose of the application of the petitioner company (lessee) by granting transit permit to the 7 lessee on deposit of royalty by the lessee. On 12.01.2015, the Parliament amended the MMDR Act, 1957 vide amendment Act, 10 of 2015. Section 8 of the Act was substituted with the provisions of Section 8A. Section 8A(6) of the Act, 1957 as amended on 12.01.2015, reads as follows:
"Notwithstanding anything contained in sub- sections (2),(3) and sub-section(4), the period of lease granted before the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015, where, minerals is used for other than captive purpose, shall be extended and be deemed to have been extended upto a period ending on 31st March, 2020 with effect from the date of expiry of the period of renewal last made or till the completion of renewal period, if any, or a period of fifty years from the date of grant of such lease, whichever is later, subject to the condition that all the terms and conditions of the lease have been complied with."
4. The Mining lease of over 100.68 hectares in Roida- I iron ore mines of the petitioner company being covered under Section 8A (6) or the amended MMDR Act, the State Government vide order dated 18.04.2015 extended the Roida-I iron ore mines over 104.68 hectares upto 31.03.2020 and accordingly supplementary lease deed was executed on 13.07.2015 for the period from 23.01.2003 to 31.03.2020. Prior to extension of the lease period, the Deputy Director of Mines, Joda issued notice dated 15.02.2014 directing the 8 petitioner company to deposit Rs.3710,59,49,954/- under Section 21(5) of the Act, 1957 for violation of provisions of Environment Protection Act and circular/notifications issued thereunder. The said notice dated 15.02.2014 was challenged before the Central Government under Section 30 of the Act, 1957 read with Rule 54 of the MC Rules, 1960 by filing Revision Application No.22/45/2014/RC-I. When the said revision case was pending before the revisional authority, a writ petition was filed by way of public interest litigation by an NGO (Non-Governmental Organization), M/s Common Cause bearing W.P.(C) No.114 of 2014 titled as Common Cause v. Union of India before the apex Court seeking appropriate orders under Section 21(5) of the MMDR Act for recovery of price of mineral as per Section 21(5) of the MMDR Act. The apex Court vide order dated 21.04.2014 issued notice in W.P.(C) No.114 of 2014 and directed the CEC to examine the allegations made in the writ petition regarding working of mines by some of the lessees, who conducted hearings and reconciliations meetings with the State Government officials, prepared a final report dated 9 16.10.2014 and submitted the same before the apex Court. The apex Court vide judgment dated 02.08.2017 directed that the leaseholders who produced iron ore without or in excess of statutory clearances like EC/mining plain/scheme/CTO are liable to pay compensation to the extent of 100% of the cost of mineral under Section 21 (5) of the MMDR Act. Pursuant to such order dated 02.08.2017, the Revision Petition filed by the petitioner was disposed of on 14.08.2017.
5. Further pursuant to the judgment of the apex Court, read with report of the CEC, the Deputy Director of Mines, Joda issued a demand notice under Section 21(5) of the MMDR Act on 02.09.2017 seeking recovery of compensation of Rs.975,25,24,283/- as rationalized by CEC and approved by the apex Court and directed to the petitioner company to deposit by 31.12.2017. On 26.09.2017, the Deputy Director of Mines, Joda issued another notice seeking to levy and recover an amount of Rs.9,63,78,990/- being the price thereof towards compensation under Section 21(5) of the MMDR Act, which is 10 in addition to and over and above the aforesaid amount of rs.975,25,24,283/- raised by the demand notice dated 02.09.2017. In response to the same, the petitioner company vide letter dated 06.10.2017 submitted its detailed reply. The Deputy Director of Mines, Joda vide demand order dated 23.10.2017 directed the petitioner company to deposit Rs.9,63,78,900/- by 31.12.2017 being the price thereof towards compensation under Section 21(5) of the Act, 1957 for production made in excess of the lower of the approved limit under Mining Plan/consent to operate.
6. In W.P.(C) No. 114 of 2014 the apex Court vide order dated 13.12.2017 held that the lessee must pay compensation and or dues/penalty by virtue of the judgment dated 02.08.2017 on or before 31.12.2017 and if the demanded amount are not paid on or before 31.12.2017, the State of Odisha shall close the mining operation for that mining lease holder. Challenging the demand order issued by the authority, the petitioner company filed revision application before the Central Government under Section 30 of the Act, 1957 read with Rule 54 of the MC Rules, 1960 11 and the revisional authority vide order dated 29.12.2017 directed the State Government not to take any coercive action against the petitioner company pursuant to demand notice dated 23.10.2017. In view of the order dated 02.08.2017 and 13.12.2017 of the apex Court in Common Cause v. Union of India, the petitioner company has to make payment of Rs.924,75,24,283/- against the demand notice dated 02.09.2017 by 31.12.2017 in order to continue with the mining operation in Roida-I iron ore mines. Since the petitioner failed to make payment of Rs.924,75,24,283/- against the demand notice dated 02.09.2017 by 31.12.2017, the mine operation of the said mines was stopped w.e.f. 01.01.2018. The petitioner company vide letter dated 16.01.2018 requested the Deputy Director of Mines, Joda to allow it to lift/transport the iron ore lump and fines of different and size from Roida-I iron ore mines, which was raised/excavated, processed and stacked prior to 01.01.2018 and permit the petitioner company to deposit the entire sale proceed against the demand notice dated 02.09.2017 in the manner as directed by the authorities of the State 12 Government. As no action has been taken, this application has been filed.
7. Mr. S. Mohanty, learned Senior Counsel appearing along with Mr. R.R. Swain, learned counsel for the petitioner- company states that the petitioner-company should be permitted to lift/transport of Iron Ore Lump and Fines of different grade and size from the mines which was raised/excavated, processed and stacked prior to 01.01.2018 and permit it to deposit the entire sale proceeds against the demand notice dated 02.09.2017 in the manner as directed by the authorities of the State Government. The same may be permitted to be done by the petitioner-Company or else, the State Government may itself lift and transport the iron Ores which was raised, excavated, processed and stacked prior to 01.01.2018 and whatever sale proceed comes that should be appropriated towards demand notice dated 02.09.2017 and any amount that may remain, then the petitioner can arrange for the same so that the demand can be liquidated and ultimately it can be permitted to operate the mines till 13 the end of the lease period so as to enable the petitioner company to operate the mines. It is further contended that if such an amendment is granted, it will not cause prejudice to anybody. On the other hand, the demand which has been raised by the authority concerned can be paid and it will ultimately enable the Company to survive.
8. Per Contra, Mr. B.P. Pradhn, learned Additional Government Advocate for the State contended that pursuant to judgment dated 02.08.2017 of the apex Court in Common Cause Case (W.P.(C) No.114 of 2014) a demand was raised to the tune of Rs.924,75,24,283/- by the Deputy Director of Mines, Joda towards compensation under Section 21(5) of the M.M.D.R, Act, 1957 for production of iron ore without/in excess of environmental clearance as rationalized by Central Empowered Committee (CEC) vide notice dated 02.09.2017 for payment on or before 31.12.2017. It is further directed vide order dated 13.12.2017 that the payment of compensation dues raised under Section 21(5) of M.M.D.R. Act,1957 if the amount is not paid on or before 31.12.2017, 14 the State of Odisha shall close the mining operation of that mining lease holder. Since the amount has not been paid the mining operation of the petitioner's mine has been stopped from 01.01.2018. It is further contended that if the petitioner could not pay the amount by 31.12.2017, it could have approached the apex Court for condoning the delay and permitting it to deposit such compensation amount within the extended period and also resumption of mining operation. It is further contended that in the case of M/s. Serajuddin & Co, it has been permitted mining operation vide order dated 23.02.2018 passed by the apex Court in I.A. No.21415 of 2018 in W.P.(C) No.114 of 2014. Instead of moving the apex Court, the petitioner could not approach this Court by filing the present application. It is further contended that similar such request for permission to dispose of the stock lying in the lease area has been made by one lessee M/s. National Enterprises vide I.A. No.16943 of 208 in W.P.(C) No.114 of 2014 which has not yet been disposed of by the apex Court. As such, there is no provision under the M.M.D.R. Act/Rules framed thereunder for the 15 State to take over such stock when the lease is still held by the lessee. It is contended that the State Government vide letter dated 29.03.2018 issued notice under Rule 12(10) of Mineral Concession Rules, 2016 stating inter alia that the petitioner company having defaulted in payment of compensation dues under Section 21(5) of the M.M.D.R. Act, 1957 pursuant to demand notice dated 02.09.2017 issued by the Deputy Director of Mines, Joda amounting Rs.925,75,24,283/- along with applicable interest within 60 days from the date of receipt of the notice, the State Government shall without prejudice to other proceeding that may be taken against the petitioner, terminate the lease and forfeit the performance security.
9. Having heard learned counsel for the parties and after going through the records, as the pleadings between the parties have been exchanged, with their consent, the writ petition is being disposed of at the stage of admission.
10. The facts delineated above are not in dispute. As such, the demand which has been raised in Common Cause 16 case in W.P.(C) No.114 of 2014 and admittedly, the petitioner has not paid the said amount and approached this Court by filing this writ petition permitting it to lift/transport of the iron ore Lump and Fines which were raised/excavated, processed and stacked prior to 01.01.2018 and the entire proceed should be deposited against the said demand notice.
11. We are afraid of that if we issue any type of direction at this stage, it may amount to interference of the order passed by the apex Court. More particularly, judicial discipline demands that the order of the apex Court has to be adhered to in letter and spirit. Maintaining the judicial propriety, we are of the considered view that the innocuous prayer made before this Court may not be permitted to be granted when the apex Court is monitoring the same in Common Cause Case (W.P.(C) No.114 of 2014).
12. At this point of time, Mr. S. Mohanty, learned Senior Counsel appearing for the petitioner states that the petitioner may be permitted to move the State Government with self-same prayer so that the demand raised by the State 17 Government can be paid from the sale proceed from the iron ore raised/excavated, processed and stacked prior to 01.01.2018 so that the demand raised by the authority concerned can be paid. To such prayer, we have not expressed any opinion. It is left upon to the petitioner to move the appellate forum, if it is so advised, ventilating its grievances with regard to payment of dues pursuant to demand raised vide letter dated 02.09.2017. If any such application is filed, the same shall be considered by the appropriate authority in accordance with law.
13. With the above observation, the writ petition stands disposed of.
Sd/-
(VINEET SARAN) CHIEF JUSTICE Sd/-
(DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack The 18th April, 2018, Alok/Ashok True Copy P.A. 18