Jharkhand High Court
Krishna Kumar Poddar vs The State Of Jharkhand on 10 September, 2021
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(C) No.1407 of 2020
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Krishna Kumar Poddar, son of late Rameshwar Lal Poddar, aged about 88 years, resident of Poddar Niketan, Bariatu Road, PO and PS -Bariatu, District-Ranchi-834009(Jharkhand) ..... Petitioner
-- Versus --
1.The State of Jharkhand, through Secretary, Department of Mines, Government, having its office at Nepal House, PO and P.S Doranda, District Ranchi -834002, Jharkhand
2.The Deputy Commissioner, Palamau, having its office at Collectorate Building, Medininagar (previously known as Daltonganj), PO and PS Medininagar, District-Palamau-822101, Jharkhand
3.The District Mining Officer, Palamau, PO and PS District-Palamau-
822101, Jharkhand ...... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. Rajendra Krishna, Advocate Mr. Krishna Kumar, Advocate For the State :- Mr. Mohan Kumar Dubey, AC to A.G.
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23/10.09.2021 Heard Mr. Rajendra Krishna, the learned counsel appearing on behalf of the petitioner and Mr. Mohan Kumar Dubey, the learned A.C. to the learned Advocate General appearing on behalf of the respondent State.
2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.
3. This writ petition was heard on different dates.
4. On 12.03.2021 Mr. Rajendra Krishna, the learned counsel appearing on behalf of the petitioner had concluded his argument on behalf of the petitioner. On 09.07.2021, the matter was adjourned and was directed to be posted for argument of the learned Advocate General on 23.07.2021. The learned Advocate General had resumed his argument 2 and for further argument it was adjourned for 30.07.2021. The argument of learned Advocate General was concluded on 27.08.2021 and it was fixed for today for reply on behalf of the petitioner.
5. I.A. No.3358/2020 was filed for stay and I.A. No.4154/2020 was filed for urgent interim relief which was decided by this Court on 17.12.2020.
6. The Court was not inclined to decide that I.A, however, on the insistence of the learned counsel Mr. Devesh Panda, who has also at that time appeared on behalf of the petitioner submitting that identical matters have been considered by this Court and interim relief has been provided, the Court decided that I.A by order dated 17.12.2020. The point of alternative remedy was raised by the respondent State and the Court has also opined that prima facie the jurisdiction is there with the Central Government and the Court has not given any final verdict on the point of maintainability, however, on the submission of the learned counsel for the petitioner the matter was directed to be listed for hearing on merits as it was argued that on the point of alternative remedy this writ petition cannot be dismissed. The petitioner was not heard before raising of demand and the prayer made in the writ petition is required to be decided by this Court. Thus, the matter was heard on merits.
7. The petitioner has preferred this writ petition for quashing the entire proceeding against the petitioner. The cognizance of demand notice dated 29.11.2017 culminated in the order dated 26.02.2017 confirming the demand which has been passed in view of the decision taken at the meeting held on 28.01.2020.
8. The petitioner received a notice dated 29.11.2017 from the District Mining Officer, Palamau respondent no.3. The said notice was issued in terms of letter dated 23.10.2017 and on the basis of letter dated 16.08.2017. In the notice of demand it was alleged that in those 3 was where production of mining exceeds the maximum limit of production will be in the Consent to Operate (CTO) and Environmental Clearance (EC) it was necessary to recover compensation from the erring party in the light of the judgment of Hon'ble Supreme Court rendered in the case of "Common Cause v. Union of India and Others" reported in (2017) 9 SCC 499, on the basis of that account, that the amount of compensation was determined against the petitioner to the tune of Rs.7,04,94,059.25. In the said notice, 24% was also imposed as additional interest.
9. Mr. Rajendra Krishna, the learned counsel for the petitioner submits that notice of demand was unfounded on the basis of decision of Hon'ble Supreme Court rendered in the case of "Common Cause". He further submits that the demand was issued without considering the relevant provisions as well as the judgment of the Hon'ble Supreme Court wherein it was repeatedly observed that holder of a mining lease is obliged to adhere to the standards laid down under the Environment (Protection) Act, 1986 or the EPA as well as the laws pertaining to air and water pollution and also by necessary implication, the provisions of the Forest (Conservation) Act, 1980 (for short the FC Act). The petitioner responded to that notice by reply dated 18.12.2017 stating therein that the production achieved had been done in accordance with the quantities approved in the mining plan, and there was no obligation to obtain by Environment Clearance or Forest Clearance for the period in respect of which the demand was raised and therefore, there was no warrant to demand compensation as per the judgment delivered by the Hon'ble Supreme Court of India. In view of several objections received from the lessees by the State of Jharkhand, the State of Jharkhand decided to constitute District-wise committees of In-charge officers clarifying that the Committee will give opportunity of hearing to the 4 concerned District Mining Officer Incharge as well as to the lease- holders, reviewing the evidence gathered and on the basis of same, decided the final amount payable, as is reflected in the letter dated 11.01.2018. It has been internally decided that in respect of those lease holders who made partial payment until 31.12.2017 and presented their objection for payment of balance remaining payable amount, transportation challan would be issued to them until the final decision is made provided they tender an undertaking that the amount decided as payable by them after the review will be collected along with an interest 24% from the date of 01.01.2018. Mr. Rajendra Krishna, the learned counsel appearing on behalf of the petitioner submits that the first meeting was held on 16.02.2018 before the District Level Committee constituted in terms of letter dated 11.01.2018 in which the petitioner participated and submitted that the petitioner is having lease area of less than 5 hectares and in terms of decision of the Hon'ble Supreme Court of India, no demand could have been raised upon him. He submits that in the first meeting, the Committee directed that reply of the petitioner ought to have been forwarded to the Member Secretary of the Pollution Control Board and his comment was sought. The second meeting was held on 03.11.2018. The petitioner submitted his written submission in advance. He referred to the letter dated 31.10.2018. The petitioner has taken the ground and submitted that in absence of any dividing line for applying section 21(5) of the Mines and Mineral (Development and Regulation) Act, 1957 was passed upon mis-interpretation of the provisions. Mr. Rajendra Krishna, the learned counsel for the petitioner submits that in the light of "Common Cause" case, the lawful authority of the petitioner under the scheme of the Mines and Minerals (Development and Regulation) Act, 1957 flowed from the mining lease over the area. According to him, that once the mining lease was granted by the State 5 after being satisfied with to these elements, the petitioner acquired the lawful authority to extract the minerals. He took to the Court to the paragraph nos. 87, 88 and 93 of "Common Cause v. Union of India, (2017) 9 SCC 499" judgment, which are quoted herein below:
"87. The Notification provides, among other things, that in case of mining operations, site clearance shall be granted for a sanctioned capacity and shall be valid for a period of five years from commencing mining operations. What this means is that on receipt of an EC a mining leaseholder can extract a mineral only from a specified site, up to the sanctioned capacity and only for a period of five years from the date of the grant of an EC. This is regardless of the quantum of extraction permissible in the mining plan or the mining lease and regardless of the duration of the mining lease. Consequently, a mining leaseholder would necessarily have to obtain a fresh EC every five years and can also apply for an increase in the sanctioned capacity. There is no concept of a retrospective EC and its validity effectively starts only from the day it is granted. Thus, the EC takes precedence over the mining lease or to put it conversely, the mining operations under a mining lease are dependent on and "subordinate" to the EC.
88. On 4-5-1994 an Explanatory Note was added to EIA 1994. We are concerned with the 1st Note which deals with the expansion and modernisation of existing projects. This reads as follows:
"1. Expansion and modernisation of existing projects.--A project proponent is required to seek environmental clearance for a proposed expansion/modernisation activity if the resultant pollution load is to exceed the existing levels. The words "pollution load" will in this context cover emissions, liquid effluents and solid or semi-solid wastes generated. A project proponent may approach the State Pollution Control Board (SPCB) concerned for certifying whether the proposed modernisation/expansion activity as listed in Schedule I to the notification is likely to exceed the existing pollution load or not. If it is certified that no increase is likely to occur in the existing pollution load due to the proposed expansion or modernisation, the project proponent will not be required to seek environmental clearance, but a copy of such certificate issued by the SPCB will have to be submitted to the Impact Assessment Agency (IAA) for information. The IAA will however, reserve the right to review such cases in the public interest if material facts justifying the need for such review come to light."
93. In our opinion, as far as the first question is concerned, a reading of EIA 1994 read with the 1st Note implies that the base year would need to be the immediately preceding year, that is, 1993-94. This is obvious from the opening sentence of the 1st Note, that is, 6 "A project proponent is required to seek environmental clearance for a proposed expansion/modernisation activity if the resultant pollution load is to exceed the existing levels."
(emphasis supplied) In its report, CEC has taken 1993-94 as the base year and we see no error in this. Even the MoEF in its Circular dated 28-10-2004 stated with regard to the expansion in production:
"If the annual production of any year from 1994-95 onwards exceeds the annual production of 1993-94 or its preceding years (even if approved by IBM), it would constitute expansion."
If that expansion results in an increase in the pollution load over the existing levels, then an EC is mandated."
10. He further submits that the petitioner was only producing 29,245 tons per annum and according to him, merely increase in production does not mean that the petitioner was required to obtain the Pollution Certificate. He further referred to paragraph nos.109 and 115 of the said judgment [Common Cause]. He took the Court to the pages at 336 and 349 of the writ petition and submits that the amendment by the Ministry of Environment and Forest effected on 14.09.2006 whereby the Notification of 1994 superseded. By way of referring to Clause-2 of the said notification, he submits that requirement of prior Environmental Clearance was discussed in that notification. By way of taking the Court to the page no.388 of the writ petition, he submits that this was the notification of 07.10.2014 and the general conditions have been described therein and wherein it has been stated that except for projects or activities of less than 5 hectares of mining lease area shall apply, provided that the above exception shall not apply for the projects or activities if the sum total of the mining lease area of the said project or activity and that of existing operating mines and mining projects which were accorded environment clearance and are located within 500 meters from the periphery of such project or activity equals or exceeds 5 hectares. He further submits that in the said notification a note is there wherein it is stated that prior environmental clearance is required at the stage of renewal of mine lease for which an application shall be 7 made up to two years prior to the date due for renewal and no new environmental clearance shall be required for a mining project or activity at the time of renewal of mining lease, which he already obtained environmental clearance under this notification. He further submits that by way of letter dated 08.01.2016, clarification on applicability of E.I.A Notification, 2006 on the requirement of Environmental Clearance for Mining Area less than 5 hectares in case of one company was communicated wherein it has been stated that after the S.O.2601 (E) dated 17.10.2014, environmental clearances are required for mining of major minerals with the mining lease area less than 5 hectares for operating mines at the stages of renewal of mine leases. He further referred to the decision of the Committee at pages 232 to 233, 252 to 255 and pages 285 to 288. He submits that the Committee has not taken any positive decision inspite of that, the amount in question has been slapped upon the petitioner. He further submits that for any case prior to 2006, the petitioner was not required to pay any amount and after 2006 amendment, no decision with regard to the demand so far as the petitioner is concerned, has been taken by the authority concerned. He further submits that the deciding line for applying section 21(5) of the Mines and Mineral (Development and Regulation) Act, 1957 was that another section of any other laws which is required to apply and considered, which has not been done. He further submits that in the notice, there is no whisper of following:
A) The area of the subject mines was more than 5 hectares between 05.03.1990 to 19.05.2008, making an EC essential from 05.03.1990, B) Further, from the year 1993-94, the Pollution Load was also enhanced, C) After EIA Notification of 2006, EC was essential for renewal of the Lease Deed as per the decision of the Hon'ble Supreme Court in Common Cause(supra)., D) After EIA Notification of 2014, EC was anyways required for mining even on areas less than 5.00 hectares.8
11. He submits that in the Notice dated 29.11.2017, whereby demand has been raised only in respect of period of 2000-01 to 2016-17, the Committee issued directions for a roving and fishing enquiry in respect of consent to operate (CTO) from the date of commencement of the mining lease till date. He further advanced his argument and submits that no reason has been disclosed. According to him, the decision is high handed on behalf of the District Mining Officer. He submits that the petitioner has suo motu applied for an EC after it had become necessary to do so in terms of EIA, 2006 as amended in EIA, 2014, on account of increase of production capacity pursuant to grant of approval of its modified mining plan with enhanced production capacity by the Indian Bureau of Mines on 21.12.2015. The said EC had been applied for in March 2016 and was granted on 22.12.2017 as there were internal delays in Ministry of Environment, Forests and Climate Change, Government of India. Lastly, he submits that in the third meeting dated 27.01.2020 before the Committee, the petitioner again filed the written submission and also updated the stand keeping in mind the submission made in letter dated 06.03.2019 stating therein that:
A) The Pollution Control Board was satisfied that the petitioner was exempted from obtaining NOC, as is evident from its own letter/order dated 20.09.2003, inasmuch as it admittedly had started operations on 05.03.1990, prior to 14.03.1990 when the obligation to obtain an NOC was brought into effect by the Board;
B) Upon suo motu applying for a CTO, as the unit at Belchampa village was called upon to produce the same in order to obtain its own CTO in 2012, the petitioner was granted a CTO in accordance with law, and since then, it was being renewed year after year. The petitioner had faced a show cause notice from the Pollution Control Board threatening closure of its unit, which was not carried out after the aforesaid order dated 20.09.2003 was brought to the notice of the Board;
C) The petitioner suo motu applied for and was granted an EC, after its production capacity was enhanced from 29,245 TPA to 55,870 TPA as per the approvals secured from the Indian Bureau of Mines on 21.12.2015. The EC was applied for on 09.03.2016 and granted on 22.12.2017; and D) No demand in terms of section 21(5) could be raised in respect of minerals extracted without CTE/CTO, as a matter of law, 9 submissions in respect of which had already been argued in the written submissions dated 28.01.2018, filed by letter dated 31.10.2018, but were yet to receive any consideration.
12. On these grounds, he submits that the amount of demand is without any cogent reason and the petitioner as was operating the mines in the area less than 5 hectares, the demand was not required and it is without any jurisdiction. So far as undertaking is concerned, he submits that in view of the requirement, the undertaking was provided by the petitioner, but that does not mean that the petitioner has waived his right. On the ground of alternative remedy, he submits that on 17.12.2020 this point was considered by the Court while deciding the I.A and the matter was posted for hearing and that is why on the ground of alternative remedy, this writ petition cannot be dismissed. To buttress his argument, he relied in the case of "Arjun Singh v. Mohindra Kumar and Others" reported in AIR 1964 SC 993. Paragraph no.10 of the said judgment is reproduced hereinbelow:
"10. That the question of fact which arose in the two proceedings was identical would not be in doubt. Of course, they were not in successive suits so to make the provisions of S. 11 of the Civil Procedure Code applicable in terms. That the scope of the principle of res-judicata is not confined to what is contained in S. 11 but is of more general application is also not in dispute. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits. In this connection we were referred to what this Court said in Satyandhan Ghosal v. Sm. Deorajin Debi, (1960) 3 SCR 590 : (AIR 1960 SC 941) where Das Gupta, J., speaking for the Court expressed himself thus :
"The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or on a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again . . . . The principle of res judicata applies also as between the two stages in the 10 same litigation to this extent that a court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one may not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings."
Mr. Pathak laid great stress on this passage as supporting him in the two submissions that he made : (1) that an issue of fact or law decided even in an interlocutory proceeding could operate as res judicata in a later proceeding, and next (2) that in order to attract the principle of res judicat the order or decision first rendered and which is pleaded as res judicata need not be capable of being appealed against."
13. He further relied in the case of "Burkat Ali and Others v. Badrinarai" reported in AIR 2001 Rajasthan 51. Paragraph no.13 of the said judgment is reproduced hereinbelow:
"13. We are of the opinion that this contention of the learned counsel too has no merit. Firstly, as we have already seen that principle of constructive res judicata applies to execution proceedings also, the constructive res judicata pre- supposes that infact there is no determination of the issue but it is impliedly deemed to have been decided between the parties which arose in the circumstances where a plea which ought to have been raised in the earlier proceedings by the parties and if the party now seeking to raise has an opportunity to raise it but has failed to raise it at the earlier occasion, he is precluded from raising the same in the subsequent proceedings on the principle of constructive resjudicata. Therefore, the question that there has to be an order deciding the issue only then the principleof res judicata can apply, does not take into consideration the basic premise on which the constructiveres judicata operates."
14. Mr. Rajiv Ranjan, the learned Advocate General had submitted on the earlier occasion and he took the Court to section 21(5) of the Mines and Mineral (Development and Regulation) Act, 1957. He further submits that under section 30 revision is maintainable and the alternative remedy to the petitioner is there. He submitted on earlier occasion that mere exchange of the affidavits and deciding the Interlocutory Application does not mean that on the ground of alternative remedy the writ petition be decided on merits. According to him there is no violation of principle of natural justice and the petitioner be provided full opportunity of hearing before the Committee and the 11 Committee has given opportunity of hearing to the petitioner, thus, this case is fit to not be entertained on the ground of alternative remedy. He submitted that the case of the "Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others" reported in (1998) 8 SCC 1 is not applicable in the facts and circumstances of the present case and on that ground the writ petition may be dismissed. He took the Court to letter dated 07.01.2017 of the Department of Industries, Mines and Geology. By way of referring this document, he submitted that it was directed that any irregularities made in providing the lease will not be tolerated. He submitted that in supplementary lease deed of extension of schedule was made and it was made clear that lessee will furnish an undertaking that he will make the payment of the demand raised or to be raised under section 21(5) of the Act of 1957. He also referred to the supplementary lease deed for extension. He submitted that in the said lease deed it is also made that the lessee will furnish undertaking and he will make the payment of the demand raised or to be raised under section 21(5) of the Act of 1957 and it was extended up to 04.03.2014. By way of referring the undertaking of the petitioner at pages 132 to 133 of the counter affidavit, he submitted that the petitioner has already given undertaking of payment. According to him, the further undertaking of the petitioner are at pages 134-135 of the counter affidavit of the State. By way of referring the letter dated 27.09.2017 contained in Annexure-C to the counter affidavit, he submitted that direction was issued to the State Government, Union Territory Administration to take necessary steps for strict compliance of all the directions by the Hon'ble Supreme Court in "Common Cause" case. Pursuant thereto, the Government of Jharkhand by letter dated 16.08.2017 issued direction upon the concerned authorities to implement the order of the Hon'ble Supreme Court. He submitted that 12 the Committee was constituted in which full opportunity of hearing was provided to the petitioner and the demand has rightly been raised. He submitted that once the undertaking is there, the petitioner wants to operate the lease without payment of any amount on the ground that the petitioner is not required to pay the same. He also took the Court to the Chart annexed to the counter affidavit at page 188 which is the charge of the petitioner in which it has been stated that Area-12.19 acres, name of the lessee is Shri K.K. Poddar. In terms of "Common Cause" judgment, annual production was treated as base 1993-94. By way of referring this document, he submitted that the production of the petitioner has been went on higher side in comparison to 1993-1994 which was the base year made by the Hon'ble Supreme Court. On perusal of this document, it is crystal clear that the production of the petitioner has been increased since 2000- 2001 on higher side till 2013-2014, 2014-2015 and 2015-2016. He further took the Court to the paragraph nos.10, 27, 44, 55, 58 to 68, 71 to 83, 84, 86, 88, 89, 92 and 94 of the "Common Cause" judgment. In paragraph no.27, the Hon'ble Supreme Court has considered the report of Justice M.B. Shah Commission. In paragraph no.44 of the said judgment the Hon'ble Supreme Court has considered the challenge to the report of Justice Shah Commission in the case of "Goa Foundation v. Union of India", reported in (2014) 6 SCC 590. The Central Empowered Committee constituted by the order of Hon'ble Supreme Court dated 09.05.2002 was considered by the Hon'ble Supreme Court at paragraph no.55. The correctness of the information of the C.E.C has been considered by the Hon'ble Supreme Court in paragraph no.59 of the said judgment. In paragraph no.84 of the judgment, the mining operation are required to be carried out in the scientific manner, as has 13 been held as under in paragraph nos.84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95 and 96:
"84. Briefly therefore, the overall purpose and objective of the MMDR Act as well as the Rules framed thereunder is to ensure that mining operations are carried out in a scientific manner with a high degree of responsibility including responsibility in protecting and preserving the environment and the flora of the area. Through this process, the holder of a mining lease is obliged to adhere to the standards laid down under the Environment (Protection) Act, 1986 or the EPA as well as the laws pertaining to air and water pollution and also by necessary implication, the provisions of the Forest (Conservation) Act, 1980 (for short "the FC Act"). Exploitation of the natural resources is ruled out. If the holder of a mining lease does not adhere to the provisions of the statutes or the rules or the terms and conditions of the mining lease, that person is liable to incur penalties under Section 21 of the MMDR Act. In addition thereto, Section 4-A of the MMDR Act which provides for the termination of a mining lease is applicable. This provides that where the Central Government, after consultation with the State Government is of the opinion that it is expedient in the interest of regulation of mines and mineral development, preservation of natural environment, prevention of pollution, etc. then the Central Government may request the State Government to prematurely terminate a mining lease. Environment Impact Assessment Notification of 27-1- 1994
85. As can be seen from the statutory scheme adverted to above, protection and preservation of the environment is a significant and integral component of a mining plan, a mining lease and mining operations -- and rightly so.
86. Keeping this in mind, an Environment Impact Assessment Notification dated 27-1-1994 was issued by the Central Government in exercise of powers conferred by Section 3(1) and Section 3(2)(v) of the EPA read with Rule 5(3)(d) of the Environment (Protection) Rules, 1986. The Environment Impact Assessment Notification dated 27-1- 1994 (for short "EIA 1994") is a prohibitory notification and directs that on and from the date of its publication in the Official Gazette:
(i) expansion or modernisation of any activity (if pollution load is to exceed the existing one); and
(ii) a new project listed in Schedule I to the notification;
shall not be undertaken unless it has been accorded environmental clearance (for short EC) by the Central Government in accordance with the procedure specified in 14 the Notification.
87. The Notification provides, among other things, that in case of mining operations, site clearance shall be granted for a sanctioned capacity and shall be valid for a period of five years from commencing mining operations. What this means is that on receipt of an EC a mining leaseholder can extract a mineral only from a specified site, up to the sanctioned capacity and only for a period of five years from the date of the grant of an EC. This is regardless of the quantum of extraction permissible in the mining plan or the mining lease and regardless of the duration of the mining lease. Consequently, a mining leaseholder would necessarily have to obtain a fresh EC every five years and can also apply for an increase in the sanctioned capacity. There is no concept of a retrospective EC and its validity effectively starts only from the day it is granted. Thus, the EC takes precedence over the mining lease or to put it conversely, the mining operations under a mining lease are dependent on and "subordinate" to the EC.
88. On 4-5-1994 an Explanatory Note was added to EIA 1994. We are concerned with the 1st Note which deals with the expansion and modernisation of existing projects. This reads as follows:
"1. Expansion and modernisation of existing projects.--A project proponent is required to seek environmental clearance for a proposed expansion/modernisation activity if the resultant pollution load is to exceed the existing levels. The words "pollution load" will in this context cover emissions, liquid effluents and solid or semi-solid wastes generated. A project proponent may approach the State Pollution Control Board (SPCB) concerned for certifying whether the proposed modernisation/expansion activity as listed in Schedule I to the notification is likely to exceed the existing pollution load or not. If it is certified that no increase is likely to occur in the existing pollution load due to the proposed expansion or modernisation, the project proponent will not be required to seek environmental clearance, but a copy of such certificate issued by the SPCB will have to be submitted to the Impact Assessment Agency (IAA) for information. The IAA will however, reserve the right to review such cases in the public interest if material facts justifying the need for such review come to light."
89. The Note is significant and from its bare reading it is clear that if any proposed expansion or modernisation activity results in an increase in the pollution load, then a prior EC is required. The project proponent should approach the State Pollution Control Board concerned (for short "SPCB") for certifying whether the proposed expansion or modernisation is likely to exceed the existing pollution load or 15 not. If the pollution load is not likely to be exceeded, the project proponent will not be required to seek an EC but a copy of such a certificate from SPCB will require to be submitted to the Impact Assessment Agency which can review the certificate.
90. What is the requirement, if any, under EIA 1994 with regard to an existing mining lease where there is no proposal for expansion or modernisation? Does such a mining leaseholder require an EC to continue mining operations? This is answered in the 8th Note which is also of some importance and this reads as follows:
"8. Exemption for projects already initiated.--For projects listed in Schedule I to the notification in respect of which required land has been acquired and all relevant clearances of the State Government including NOC from the respective State Pollution Control Boards have been obtained before 27-1-1994, a project proponent will not be required to seek environmental clearance from the IAA. However those units who have not as yet commenced production will inform the IAA."
91. The above Note makes it clear that existing mining projects that have a no-objection certificate from SPCB before 27-1-1994 will not be required to obtain an EC from the Impact Assessment Agency. Of course, this is subject to the substantive portion of EIA 1994 and the 1st Note. However, if the existing mining project does not have a no- objection certificate from SPCB, then an EC will be required under EIA 1994.
92. Two questions immediately arise from a reading of the 1st and the 8th Note. The first question is: What is the base year for considering the pollution load while proposing any expansion activity? The second question is: What is the duration for which an EC is not necessary for an ongoing project which does not propose any expansion, or to put it differently, what is the validity period for a no-objection certificate from SPCB?
93. In our opinion, as far as the first question is concerned, a reading of EIA 1994 read with the 1st Note implies that the base year would need to be the immediately preceding year, that is, 1993-94. This is obvious from the opening sentence of the 1st Note, that is, "A project proponent is required to seek environmental clearance for a proposed expansion/modernisation activity if the resultant pollution load is to exceed the existing levels."
(emphasis supplied) In its report, CEC has taken 1993-94 as the base year and we see no error in this. Even the MoEF in its Circular dated 28- 10-2004 stated with regard to the expansion in production:
"If the annual production of any year from 1994-95 onwards 16 exceeds the annual production of 1993-94 or its preceding years (even if approved by IBM), it would constitute expansion."
If that expansion results in an increase in the pollution load over the existing levels, then an EC is mandated.
94. It was contended on behalf of the mining leaseholders that in terms of the Circular of 28-10-2004 the annual production even prior to 1993-94 could be considered for ascertaining if there was an expansion or not. We cannot accept this submission for a variety of reasons. For one, the existing levels mentioned in the 1st Note clearly have reference to the immediately preceding year and not to a preceding year in a comparatively remote past. Secondly, a very high annual production in any one year is not reflective of a consistent pattern of production -- it could very well be a freak year and that freak year certainly cannot be a basic standard or the norm to measure expansion. Then if the interpretation sought to be given is accepted, there would be an absence of consistency and a lack of uniformity with different mining leaseholders having different base years. This is hardly conducive to good governance. Finally, EIA 1994 was intended to prevent the existing environmental load from increasing based on the existing data of the immediate past and not data of a few years gone by. We may add that the only exception that could be made in this regard would be if there is no production during 1993-94. In that event, the immediately preceding year would be relevant and that is the only reasonable interpretation that we see for the use of the words "or its preceding years".
95. On the question of the duration or exemption period from an EC in respect of a project that has commenced prior to 27-1-1994 the substantive portion of EIA 1994 and the 8th Note grant an exemption from the requirement of obtaining an EC if there is no expansion and the existing pollution load is not exceeded. In any event, a no- objection certificate from SPCB is necessary for continuing the mining operations. Consequently, even if any mining leaseholder does not have an EC or does not require an EC for continuing mining operations (but has a no-objection certificate from SPCB), the absence of an EC would not have an adverse impact on the mining leaseholder unless of course, there was an expansion in the mining operations without any certificate from SPCB. In addition to this, the validity period (if any) of the certificate from SPCB is important -- we have not been made aware whether there is such a validity period or not.
96. The contention of the learned counsel for the mining leaseholders that EIA 1994 was rather vague, uncertain and ambiguous cannot be accepted. In our opinion, on a composite reading of EIA 1994, it is clear that: 17
(i) A no-objection certificate from SPCB was necessary for continuing mining operations;
(ii) An expansion or modernisation activity required an EC unless the pollution load was not exceeded beyond the existing levels;
(iii) The base year for determining the pollution load and therefore the proposed expansion would be with reference to 1993-94;
(iv) Whether an expansion or modernisation would lead to exceeding the existing pollution load or not would require a certificate from SPCB which could be reviewed by the IAA;
(v) New projects require an EC; and
(vi) Existing projects do not require an EC unless there is an expansion or modernisation for the duration (if any) of the validity of the certificate from SPCB.
We need not say anything more on this subject since CEC has proceeded to discuss the issue of mining in excess of the EC or in excess of the mining plan only from the year 2000-01 onwards. The prior period may, therefore, be ignored and it is the period from 2000-01 onwards which is actually relevant for the present discussion.
15. Section 13 of the Act of 1957 provides the power to Central Government to make rules in respect of minerals.
16. In the discussions made hereinabove, it is crystal clear that the factual aspect is involved in this case. On the one hand, the petitioner is contending that he is not required to pay any amount and on the other, the documents on the record which have been brought on behalf of the respondent State suggest that the petitioner is required to pay. It will not be proper for this Court to make a finding on these disputed questions of fact as the alternative remedy of revision in the light of section 30 of the Act of 1957 is there. Section 30 of the Act of 1957 stipulates that and for the sake of convenience, the same is quoted hereunder:
"[30. Power of revision by Central Government.―The Central Government may, of its own motion or on an application made within the prescribed time by an aggrieved party,― (a) revise any order made by a State Government or other authority in exercise of the powers conferred on it by or under this Act with respect to any mineral other than a minor mineral; or (b) where no such order has been made by the 18 State Government or other authority in exercise of the powers conferred on it by or under this Act with respect to any mineral other than a minor mineral within the time prescribed therefore, pass such order as it may think fit and appropriate in the circumstances: Provided that in cases covered by clause (b) the Central Government shall, before passing any order under this clause, give an opportunity of being heard or to represent in the matter.]"
17. Rules 35 and 36 of the Minerals (Other than Atomic and Hydro Carbon Energy Minerals) Concessions Rules, 2016 has made out the provision for revision which is quoted hereinbelow:
"35. Application for revision.- (1) Any person aggrieved by:
(a) any order made by the State Government or other authority in exercise of the powers conferred on it by or under the Act or the rules made thereunder; or
(b) non-passing of any order by the State Government or other authority in exercise of the powers conferred on it by or under the Act or the rules made thereunder, within the time prescribed therefor may, within three months of (i) the date of communication of the order to him; or (ii) the date on which the time period for passing such order expired, apply to the Central Government in the form specified in Schedule XI for passing of an order, pursuant to section 30. (2) The application should be accompanied by a bank draft for rupees ten thousand as application fee drawn on a Scheduled bank in the name of 'Pay and Accounts Officer, Ministry of Mines' payable at New Delhi or by way of a bank transfer to the designated bank account of the Ministry of Mines:
Provided that any such application may be entertained after the said period of three months if the applicant satisfies the Central Government that he had sufficient cause for not making the application within time.
(3) In every application under sub-rule (1) against the order of a State Government refusing to grant a mineral concession, any person to whom a mineral concession was granted in respect of the same area or for a part thereof, shall be impleaded as party. (4) The applicant shall, along with the application under sub-rule (1), submit as many copies thereof as there are parties impleaded under sub-rule (3).
(5) On receipt of the application and copies thereof, the Central Government shall send a copy of the application to each of the parties impleaded under sub-rule (3) specifying a date on or before which he may make his representations, if any, against the revision application:19
Provided that in case where the revision application has been filed for the reason that no order has been passed by the State Government within the time prescribed therefor, the Central Government shall before passing an order give the State Government an opportunity of being heard or to represent in the matter.
36. Orders on revision application:- (1) On receipt of an application for revision under rule 35, copies thereof shall be sent to the State Government or other authority and to all the impleaded parties calling upon them to make such comments as they may like to make within three months from the date of issue of the communication, and the State Government or other authority and the impleaded parties, while furnishing comments to the Central Government shall simultaneously endorse a copy of the comments to the other parties.
(2) Comments received from any party under sub-rule (1) shall be sent to the other parties for making such further comments as they may like to make within one month from the date of issue of the communication and the parties making further comments shall send them to all the other parties.
(3) The revision application, the communications containing comments and counter-comments referred to in sub-rule (1) and (2) shall constitute the records of the case.
(4) After considering the records referred to in sub-rule (3), the Central Government may confirm, modify or set aside the order or pass such other order in relation thereto as the Central Government may deem just and proper.
(5) Notwithstanding anything contained in this rule, the Central Government may for sufficient cause, pending the final disposal of an application for revision, stay the execution of the order against which any revision application has been made."
18. It is well settled that if there is alternative statutory remedy is available the right course can be by the High Court to direct to avail that remedy and not to interfere under Article 226 of the Constitution of India. There is no doubt that some exceptions are there on entertaining of the writ petition under Article 226 of the Constitution of India. A reference may be made to the case of "Sri Siddeshwara Cooperative Bank Ltd. v. Ikbal, (2013) 10 SCC 83 reported in (2013) 10 SCC 83. Paragraph no.27 of the said judgment is quoted hereinbelow:
"27. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction 20 under Article 226 but by now it is well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under Article
226. On misplaced considerations, statutory procedures cannot be allowed to be circumvented."
19. Article 226 of the Constitution of India again considered by the Hon'ble Supreme Court in the case of "Nivedita Sharma v. Cellular Operators Assn. of India", reported in (2011) 14 SCC 337. Paragraph no.11 of the said judgment is quoted hereinbelow:
"11. We have considered the respective arguments/submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation--L. Chandra Kumar v. Union of India. However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."
20. In such disputed questions of fact, this Court is not required to examine those facts as the expeditious remedy of revision under section 30 read with Rule 35 and 36 of the 2016 Rules are provided. These are the disputed questions of fact with regard to irregularities and whether it has been rightly appreciated by the State Government or not, that can be looked into by the revisional authority. While deciding the interim application by order dated 17.12.2020, this Court has observed that prima facie alternative remedy is there and on that ground no verdict was there with regard to alternative remedy since the petitioner insisted to decide that I.A. on the ground that identical to other writ 21 petitions in which interim order has been passed that was decided and the Court directed to place the matter as it was submitted that there is violation of principle of natural justice and in the light of W.P.(C) No.7286/2017, this writ petition is not fit to be entertained by the Court thus there is no final verdict on 17.12.2020 on the ground of alternative remedy. The judgments relied by Mr. Rajendra Krishna, the learned counsel appearing on behalf of the petitioner in the cases of "Arjun Singh v. Mohindra Kumar and Others" reported in AIR 1964 SC 993 and 'Barkat Ali and Others v. Badrinarai' reported in AIR 2001 Rajasthan 51 are not applicable under the facts and circumstances of the present case. As Arjun Singh(supra) case is based on Order-IX Rule-13 of the C.P.C for setting aside the ex-parte decree in which Hon'ble Supreme Court dealt in length and held that there should be over whelming evidence of the proceeding not being ex-parte, if the respondent is to succeed in his plea. This is not the case in hand. Further, the case of "Burkat Ali"(supra) is solely based on constructive res-judicata and Hon'ble Supreme Court held that constructive res-judicata is applicable in the execution proceeding. The facts of the case is far different from the present case and not helping the petitioner of the present case. There is serious dispute of fact in present case and this Court is not inclined to go on those aspect. Therefore, this Court is not inclined to entertain this writ petition at this stage.
21. Accordingly, the instant writ petition [W.P.(C) No.1407 of 2020] is dismissed.
22. The petitioner is at liberty to approach before the revisional authority, if so advised.
23. Interim order dated 17.12.2020 stands vacated.
( Sanjay Kumar Dwivedi, J) SI/,