Rajasthan High Court - Jodhpur
Ojaswi Marbles And Granites Pvt.Ltd vs State And Ors on 18 March, 2021
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 15114/2016
Ojaswi Marbles And Granites Pvt. Ltd., Having Its Regd. Office At
Village Bedla, Udaipur Raj., Through Its Authorized Signatory
Shri Karunanidhi Joshi, S/o Late Shri Bharat Bhusan Joshi
----Petitioner
Versus
1. The State Of Rajasthan, Through The Principal Secretary,
Department Of Mines And Geology, Jaipur
2. The Union Of India Through The Secretary, Ministry Of
Mines, New Delhi
3. The Director, Department Of Mines And Geology, Udaipur
4. The Mining Engineer, Department Of Mines And Geology,
Sikar
5. The Additional Director Mines Environment And
Development Nodal Officer, Forest Matters, Udaipur
6. The Secretary, Ministry Of Environment, Forest And
Climate Change, Government Of India, Indira Paryavaran
Bhawan, Aliganj, Jorbagh Road, New Delhi.
7. The Principal Secretary Forests, Department Of
Environment And Forests, Government Of Rajasthan,
Jaipur
----Respondents
Connected With
S.B. Writ Contempt No. 59/2017
Ojaswi Marbles And Granties Pvt. Ltd, Having Its Regd. Office At
Village Bedla, Udaipur Raj., Through Its Authorized Signatory
Shri Karunanidhi Joshi, Son Of Late Shri Bharat Bhusan Joshi
----Petitioner
Versus
1. The State Of Rajasthan Through The Principal Secretary,
Department Of Mines And Geology, Secretariat, Jaipur
2. Ms. Aparna Arora, Principal Secretary, Department Of
Mines And Geology, Secretariat, Jaipur
3. Shri D. S. Maru, Director, Department Of Mines And
Geology, Khanij Bhawan, Shastri Circle, Udaipur
4. Shri Ramlal, Assistant Mining Engineer, Sikar Holding
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(2 of 7) [CW-15114/2016]
Additional Charge Of Mining Engineer, Department Of
Mines And Geology, Sikar
----Respondents
For Petitioner(s) : Mr. R.N. Mathur, Sr. Advocate assisted
by Mr. Vikas Balia & Mr. Akhilesh
Rajpurohit
For Respondent(s) : Mr. Mukesh Rajpurohit, ASG
Mr. Sandeep Shah, AAG with Ms.
Akshiti Singhvi
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 18/03/2021
1. In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court.
2. Today the matter comes up on application preferred by the petitioner for disposal of the writ petition.
3. Learned counsel for the petitioner submits that the petitioner had applied for grant of mining lease for Open Cast Iron Ore Mining near Village Dipas, Tehsil Neem Ka Thana, District Sikar in State of Rajasthan, as per the Mineral Concession Rules, 1960.
4. Learned counsel for the petitioner further submits that the petitioner was granted Letter of Intent by the State Government on 05.12.2014 for grant of mining lease for Open Cast Iron Ore Mining for the area in question vide Annex.8.
5. Learned counsel for the petitioner has drawn attention of this Court to the relevant portion of the handbook for Forest (Conservation) Act, 1980 readwith Forest Conservation Rules, 2003 (Guidelines & Clarification). The relevant portion being Clause 7.3 sub-clause (i) of the said rules reads as under :-
(Downloaded on 19/03/2021 at 08:42:25 PM)(3 of 7) [CW-15114/2016] "(i) In case of mining projects, having forest land in part or in full, approval of Central Government under Section 2(iii) of the FC Act, for the entire forest land located within a mining lease sh all be obtained before execution of a mining lease in accordance with the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 and the rules framed there under. Mining in the forest land within the ML area, including government can be done only after diversion of the forest area under Section 2(ii) of the FC Act, 1980."
6. Learned counsel for the petitioner has further drawn attention of this Court towards the letter dated 06.01.2017 issued by the Government of India, Ministry of Environment, Forests and Climate Change (FC Division) written to the Principal Secretary (Forests), Government of Rajasthan, Jaipur, in which, the following conditions are relevant :-
"(viii) This approval does not, in any manner, exempt a user agency from obtaining prior approval under Section 2(ii) of the FC Act in regard to such area of forest land, which is to be used for non-forest purpose.
(xii) The grant of permission under Section 2(iii) of Forest (Conservation) Act 1980 will not confer any right on the project proponent for diversion under Section 2(ii) of Forest (Conversation) Act, 1980."
7. Learned counsel for the petitioner further submits that on a conjoint reading of the handbook and the letter of the Ministry of Environment, Government of India indicates that the procedure of Section 2 Sub-section (iii) of the of the Forest (Conservation) Act, 1980 has to precede to the procedure in Section 2 Sub-section
(ii).
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8. Learned counsel for the petitioner further submits that any forest land or any portion thereof which may be assigned by way of lease or otherwise to any private person or to any other authority, corporation, agency or any other organization shall be restricted and shall be amenable to the approval of the Central Government.
9. Learned counsel for the petitioner further submits that Section 2 of the Forest Act of 1980 itself envisages that for exclusion from restriction the authority would lie with Central Government only.
10. Learned counsel for the petitioner further submits that the iron ore being a major mineral the approval is in the sole domain of the Union of India and the Forest Act restrictions relaxation are also within the sole domain of Union of India with certain procedural factors running through the State Government.
11. Learned counsel for the petitioner further submits that even after the Mines and Minerals (Development and Regulation) Amendment Act, 1957, the petitioner's case remain alive as the Petitioner's LoI was prior to the cut-off date of 11.01.2017.
12. Learned counsel for the petitioner further submits that this Court in the presence of the petitioner and in the presence of learned Assistant Solicitor General as well as learned Additional Advocate General had passed a considered order on 09.07.2017 in this matter, which reads as follows :-
"By way of this writ petition, the petitioner is seeking directions to the respondents to grant and execute the mining lease to the petitioner in terms of Letter of Intent (LoI) dated5.12.14 issued in its favour for grant of mining lease of mining area 180 Hectares situated at Village-
Dipas, Tehsil Neem Ka Thana, District Sikar.
(Downloaded on 19/03/2021 at 08:42:25 PM)(5 of 7) [CW-15114/2016] Learned counsel appearing for the petitioner submits that the Central Government communicated its approval in terms of Section 5(1) of the Mines and Minerals (Development &Regulations) Act, 1956 (for short 'the MMDR Act, 1957') vide communication dated 9.12.13 for grant of mining lease to the petitioner and the State Government decided to grant the mining lease to the petitioner on 5.12.14 by way of issuing LoI, however, on account of failure on the part of the respondents in taking further steps for necessary clearance of Department of Forest and Department of Environment, the mining lease could not be executed in favour of the petitioner. Learned counsel submitted that during the pendency of the petition, on 6.1.17, 'No Objection Certificate' (NOC) has already been issued by the Department of Forest in favour of the petitioner. That apart, it is submitted that the Government of India has issued a notification dated 4.1.17, clarifying that notwithstanding anything contained in clause (c) of sub-section (2) of Section 10A of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 (10 of 2015), where the condition of obtaining environment clearance has not been complied with by the applicant on or before 11.1.17, but all other conditions specified in previous approval of Letter of Intent have been fulfilled, the applications shall be considered under the said Section and mining lease shall be granted by the concerned State Government in accordance with the notifications issued under the Environment (Protection) Act, 1986 and therefore, there is no reason as to why the respondents should not execute the mining lease in favour of the petitioner. It is submitted that the application of the petitioner stands saved under Section 10A(2)(c) of the MMDR Act, 1957, but if the mining lease is not allotted in its favour on or before 11.1.17, the same would automatically stands lapsed and thus, it is absolutely necessary that the respondents are directed to execute the mining lease in favour of the petitioner pending fulfillment of requirement of obtaining the environment clearance.
Learned Additional Advocate General submitted that the State has no objection if the directions are issued by this Court to execute the mining lease in favour of the petitioner on fulfillment of other requirements pending issuance of Environment Clearance by the Government of India.
(Downloaded on 19/03/2021 at 08:42:25 PM)(6 of 7) [CW-15114/2016] Thus, on the facts and in the circumstances of the case, the respondents are directed to grant the mining lease in favour of the petitioner on or before 11.1.2017 pending issuance of Environment Clearance by the Government of India. The allotment of mining lease in favour of the petitioner in terms of this interim order shall not create any right in favour of the petitioner and the same shall be subject to decision of this writ petition. On the basis of execution of the mining lease in favour of the petitioner in terms of this order, the petitioner shall not be entitled to commence the mining activity pending disposal of the petition.
Learned Additional Advocate General and learned Assistant Solicitor General seek three weeks time to file reply to the writ petition.
Time prayed for is allowed.
Put up after three weeks, as prayed. "
13. Learned counsel for the petitioner, thus, submits that the petitioner cannot be exposed to a vicious cycle between the State Government and Union of India whereby the procedure cannot be concluded under the Forest Act, 1980, if 2.2 keeps on requiring the implementation of 2.3 and 2.3 keeps on requiring the completion of 2.2.
14. Learned Additional Advocate General Mr. Sandeep Shah vehemently opposes the proposition on the ground that a bare reading of the LoI creates a legal obligation upon the petitioner to bring a diversion approval from the Government of India before the lease deed can be executed.
15. Learned Additional Advocate General has also pointed out from the Gazette notification whereby the order dated 04.01.2017 was issued, in which, the condition for obtaining the environmental clearance had to be complied with on or before 11.01.2017 and all other conditions specified in the previous approval or Letter of Intent were to be fulfilled then only the application were to be considered by the State Government. (Downloaded on 19/03/2021 at 08:42:25 PM)
(7 of 7) [CW-15114/2016] Learned Additional Advocate General also mentions that the royalty shall be required to be paid by the petitioner, in case they succeed in the process, they shall have to pay a royalty in accordance with the Rule 51 of the Rajasthan Minor Mineral Concession Rules, 2017.
16. Learned Additional Solicitor General Shri Mukesh Rajpurohit submits that in accordance with the stand taken by the Union of India, since the petitioner's LoI has been issued prior to 11.01.2017, therefore, he is entitled for a lawful consideration but he has to comply with the restrictive provisions envisaged under Section 2 Sub-section (ii) and (iii) under the Forest Act of 1980.
17. This Court, after hearing learned counsel for the parties at length and perusing the record of the case, is not persuaded to make any change whatsoever in the interim order already granted on 09.01.2017 by this Court after hearing counsel for both the parties. In accordance with the interim order, the State is duty bound to issue the lease and the Union of India is duty bound to process the same strictly in accordance with law.
18. The application for final disposal thus, cannot be accepted and same is disposed of with a reiteration of the earlier interim order granted by this Court on 09.01.2017. It is needless to say that since the interim order has been passed in year 2017, therefore, the State ought to expeditiously comply with the same preferably within a period of three months from today.
19. The stay is confirmed and the application for stay vacation is disposed of.
(DR.PUSHPENDRA SINGH BHATI),J.
49-Sudheer/-
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