Orissa High Court
Shivom Minerals Ltd vs Member Secretary on 30 May, 2025
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 31-May-2025 13:46:45
IN THE HIGH COURT OF ORISSA AT CUTTACK
A.F.R.
W.P.(C) No.8497 of 2025
(In the matter of an application under Articles 226 and 227of the
Constitution of India, 1950).
Shivom Minerals Ltd., Rourkela, .... Petitioner(s)
Sundargarh
-versus-
Member Secretary, Odisha .... Opposite Party (s)
State Pollution Control
Board, Bhubaneswar & Anr.
Advocates appeared in the case throughHybrid Mode:
For Petitioner(s) : Mr. Lalitendu Mishra, Adv.
Mr. Ashwini Kumar, Adv.
For Opposite Party (s) : Mr. S. P. Mohanty, Adv.
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-14.05.2025
DATE OF JUDGMENT:-30.05.2025
Dr. S.K. Panigrahi, J.
1. The Petitioner in the present Writ Petition seeks a direction to the Opposite Parties to grant formal approval of the Consent to Operate in respect of his online application No. 6003945 dated 04.12.2024.
I. FACTUAL MATRIX OF THE CASE: 2. The brief facts of the caseare asfollows: Page 1 of 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-May-2025 13:46:45 (i) The Petitioner is a Public Limited Company incorporated under the Companies Act, 1956. (ii) The Petitioner has been operating an Iron Ore Beneficiation Plant at
Koira, District Sundargarh, since the year 2005-2006, under a valid Consent to Operate dated 12 June 2020 which has been renewed from time to time.
(iii) In 2012-13, the Petitioner undertook modernization of the existing unit without any increase in production capacity. Following this, the Consent to Operate was renewed on 28.05.2013.
(iv) In 2015, to ensure compatibility with the Odisha Industries Facilitation Act, 2004, and the Department of Industrial Policy and Promotion (DIPP) guidelines issued by the Government of India, and to expedite the decision-making process, Opposite Party No. 1 issued Office Order No. 6456/IND-II-NOC-MISC.198 dated 15.04.2015. This order reduced the time limit for disposal of applications for Consent to Establish and/or Consent to Operate under the Water (Prevention and Control of Pollution) Act, 1974, and the Air (Prevention and Control of Pollution) Act, 1981. Although the statutory timeframe prescribed under the Acts is four months, the said office order revised the limits to 60, 45, and 30 days for various categories of industries.
(v) Subsequently, by an Office Order dated 04.02.2023, the classification of certain industrial units was revised.
Page 2 of 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 31-May-2025 13:46:45
(vi) Due to land constraints and issues related to the storage of solid waste, the Petitioner submitted a composite modernization project, without any capacity expansion, to the Single Window Clearance Committee under the Odisha Industries Facilitation Act on 29.08.2022. This proposal was approved during the meeting held on 15.12.2023.
(vii) On 25.03.2024, the Petitioner applied for Consent to Establish in respect of the proposed modernization, expressly stating that there would be no increase in the production capacity beyond what had already been sanctioned under the Consent to Operate dated 12.06.2020. However, the said application was neither approved nor rejected within the statutory period prescribed under the office order dated 15.04.2015, read with the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. It is the Petitioner's contention that the application was therefore deemed to have been granted in accordance with law.
(viii) The Petitioner subsequently submitted an online application, Consent Application No. 6003945, for renewal-cum-grant of Consent to Operate for the modernized unit, without any increase in product capacity, in continuation of the existing Consent to Operate, on 04.12.2024. The special features of the modernization project, as mentioned in the Consent to Operate application, are noted below:
a. Zero discharge of trade effluent outside factory premises. Page 3 of 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 31-May-2025 13:46:45 b. Further reduction of domestic effluent by proposing installation of an STP, in addition to the existing septic tank. c. Solid waste generation was proposed to reduce 28% of inputraw material in comparison to 38-40% prior to modernization. However, the petitioner succeeded reducing it toabout 20% based on current raw material quality. d. Tailing Fe was proposed to be reduced from 44-48% Fe to about 40% Fe. The Petitioner, however, succeeded in reducing it to 36% Fe, which is unique for Hematite Iron Ore in Odisha and is in the larger interest of mineral conservation and preserving the mineral wealth of the Nation.
e. Debottlenecking of operations was undertaken to achieve 90- 95% capacity utilization, thereby enabling the servicing of debt raised for the modernization.
(ix) On 11.03.2025, the Petitioner sent an email enclosing a letter dated 10.03.2025, requesting Opposite Party No. 1 to issue formal approval, preferably before 15.03.2025, to enable submission of the same to banks and other statutory departments for license renewals.
(x) When no response was received, a follow-up reminder was sent on 18.03.2025 emphasizing the urgency. Despite repeated communications, no reply has been received from the authorities to date.It is the contention of the Petitioner that, in view of the inaction of the authorities and the lapse of the statutory time period prescribed under the Office Order dated 15.04.2015, read with the Page 4 of 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-May-2025 13:46:45 provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, the application is deemed to have been approved.
(xi) Aggrieved by the inaction of Opposite Party No. 1 in issuing the formal approval for disposal of the consent application, the Petitioner has approached this Court.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions:
(i) The Petitioner asserted that it is entitled to deemed approval in view of the Office Order dated 15.04.2015 and 04.02.2023 read with the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, as the Opposite Party has failed to decide the application dated 04.12.2024 filed by the Petitioner for Consent to Operate.
(ii) The Petitioner submitted that despite the consent application being deemed granted, the Opposite Party, despite several requests, has failed to issue any formal approval.
(iii) The Petitioner submitted that the Petitioner Company has at all times complied with the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, as there is no discharge of "trade effluent" or "air pollutant," and under such circumstances, the Petitioner is Page 5 of 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-May-2025 13:46:45 entitled to formal approval of its Consent to Operate application dated 04.12.2024.
(iv) The Petitioner submitted that a composite modernization project without capacity expansion was submitted by the Petitioner to the Single Window Clearance Committee under the Odisha Industries Facilitation Act, which was approved in the meeting held on 15.12.2023, of which the Opposite Party was also a member.
(v) The Petitioner submitted that the Petitioner filed the online consent application dated 04.12.2024 for Consent to Operate, but to date has not received any response from Opposite Party No. 2. Thus, as per Office Order No. 6456 dated 15.04.2015 read with the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, the application dated 04.12.2024 is deemed approved.
(vi) The Petitioner submitted that it is required to obtain other statutory approvals/licenses for running the plant, but due to the non- issuance of formal approval, the Petitioner is unable to obtain the same.
(vii) The Petitioner submitted that in the absence of formal approval of the Consent to Operate, the Petitioner is unable to obtain additional working capital facilities, resulting in delays in payments to banks and statutory dues.
(viii) The Petitioner submitted that the SPCB portal is digitally connected with the Mining Department, and failure to issue formal approval of Page 6 of 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-May-2025 13:46:45 Consent to Operate before the expiry of the current Consent to Operate, will result in stoppage of receipt and dispatch of iron ore, bringing plant operations to a grinding halt with severe consequences.
(ix) The Petitioner submitted the inaction of the Opposite Party violates Articles 14 and 19(1)(g) of the Constitution of India, as the Petitioner is being deprived of the benefits of the statutory provisions, adversely affecting its business.
(x) The Petitioner submitted that after the filing of the present petition, the Opposite Party No. 1 issued the Consent to Operate with a 60% reduced capacity, which will have a significant adverse impact on the viability of the subject plant. Besides, the reduction in capacity will affect the financial health of the company and create doubts and uncertainty among financial institutions and creditors. This, in turn, would negatively impact the company's working capital and jeopardize the interests of the management, workers, and creditors.
(xi) The Petitioner submitted that there has been no increase in "product capacity" even after modernization. The requirement for environmental clearance under the Environmental Impact Assessment Notification, 2006, and subsequent amendments does not apply to the Petitioner's plant. Moreover, the Opposite Party No.1 was uncertain about the applicability of the environmental clearance requirement for the subject plant and therefore referred the matter to the Ministry of Environment, Forest and Climate Page 7 of 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-May-2025 13:46:45 Change, Government of India, by way of a letter dated 05.12.2024, seeking further clarification on the Consent to Establish application. It is relevant to note that the application for the Consent to Establish was submitted on 25.03.2024, and the clarification was sought well after the expiry of the statutory period for the grant of the Consent to Establish. By that time, the Consent to Establish was deemed to have been granted unconditionally.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
4. The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions:
(i) The petitioner's claim that failure to dispose of the application within 45 days, as prescribed by State Pollution Control BoardOffice Order No. 6456 dated 15.04.2015, results in deemed Consent to Operate cannot be accepted. The said Office Order was issued solely to expedite disposal of complete and duly filed applications within specified timelines. It does not confer any right or entitlement to deemed approval.
(ii) Section 25(7) of the Water (Prevention and Control of Pollution) Act, 1974, clearly states that consent shall be deemed granted only if the application remains undecided after four months from the date of receipt of a complete application, unless it is granted or refused earlier. In the present case, the Board duly considered the petitioner's application and granted consent by its letter No. 6948 dated 31.03.2025, subject to general and special conditions. Page 8 of 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 31-May-2025 13:46:45 Therefore, the claim of deemed consent on account of inaction within 45 days is unsustainable and must be rejected.
(iii) The petitioner's application was made on 04.12.2024, and the Board granted consent to operate in favor of the petitioner's unit by Order No. 6948 dated 31.03.2025, well within the statutory period of four months. Hence, the petitioner's assumption that it enjoys deemed consent reflects a misinterpretation of the provisions of the said Office Order.
(iv) As per the Board's Office Order dated 04.02.2023, the Mineral Processing Unit was classified as an Orange Category industry. However, the petitioner's unit is an Iron Ore Beneficiation plant, listed as a Red Category industry at Serial No. 35 of the list notified by the State Pollution Control Board vide Notification No. 8333 dated 11.07.2018.
(v) Further, in January 2025, the Central Pollution Control Board published a report titled "Classification of Sectors into Red, Orange, Green, White and Blue Categories." According to this report, Mining of Major Minerals and Iron Ore Beneficiation is categorized under Serial No. 88.3 as Red Category. Therefore, the petitioner's claim that their unit falls under the Orange Category is factually incorrect.
(vi) The Environment Impact Assessment Notification, 2006 issued by the Ministry of Environment, Forest and Climate Change requires that any new construction, expansion, or modernization of projects Page 9 of 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-May-2025 13:46:45 listed in its Schedule must obtain prior environmental clearance from the Central Government or the State Level Environmental Impact Assessment Authority before commencement. Specifically, Mineral Beneficiation projects fall under Serial No. 2(b) of the Schedule, where the clearance requirement is triggered based on the throughput of raw materials processed, not on the output produced. In the present case, the petitioner's modernization project proposes to increase the throughput capacity from 2,40,000 TPA to 4,00,000 TPA, while maintaining the same product output. The petitioner claims that this increase does not necessitate environmental clearance. However, since the authority to grant such clearance rests solely with the Ministry of Environment, Forest and Climate Change and the State Environmental Impact Assessment Authority, the State Pollution Control Board has sought formal clarification on this matter by forwarding the petitioner's exemption claim with supporting grounds through official letters dated 05.12.2024 and 24.03.2025.
(vii) The petitioner submitted hisOnline Application No. 5494788 for Consent to Establish for its modernization project. Prior to modernization, the plant's throughput capacity was 2,40,000 TPA (800 TPD), and the application proposed increasing it to 4,00,000 TPA. The Board received the application on 25.03.2024, and an inspection at the project site was conducted on 16.04.2024. During inspection, it was found that the petitioner had commenced Page 10 of 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-May-2025 13:46:45 construction of the modernization plant without obtaining the required CTE and Environmental Clearance. Consequently, the Board issued a Show Cause Notice to the petitioner vide letter No. 3275 dated 05.07.2024 for commencing construction without necessary approvals. Subsequently, Consent to Establish for the modernization project was granted, subject to clarification from the Ministry of Environment, Forest and Climate Change and the State Environmental Impact Assessment Authority regarding the applicability of Environmental Clearance.
(viii) Since the petitioner was fully aware that it violated provisions by commencing construction of the modernization project without awaiting Consent to Establish and Environmental Clearance, well before the expiry of the four-month statutory period, the claims made in the writ petition seeking deemed Consent to Establish are liable to be rejected.
(ix) The petitioner held a Consent to Operate dated 12.06.2020, valid until 31.03.2025. The subsequent Consent to Operate for the period ending 31.03.2026 was granted by the Board vide No. 6948 dated 31.03.2025, issued based on the application for the previously approved Consent to Operate. However, the application for Consent to Operate for the modernization project was not considered as Environmental Clearance is a mandatory prerequisite for grant of Consent to Operate, per the Ministry of Environment, Forest and Climate Change order dated 20.09.2021.
Page 11 of 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 31-May-2025 13:46:45
(x) Since the Consent to Operate for 2025-26 was granted within the validity period of the earlier Consent to Operate and within four months of the application, there has been no interruption in production as claimed. Hence, the petitioner's assertion that a delay in processing by the SPCB caused discontinuance of production is factually incorrect and deserves rejection.
(xi) Since the petitioner commenced construction of the modernization project without obtaining Consent to Establish and Environmental Clearance, a Show Cause Notice was issued vide letter No. 3275 dated 05.07.2024. In response, the petitioner made several submissions claiming Environmental Clearance was not required and appeared twice for personal hearings requesting exemption. As Environmental Clearance falls under the jurisdiction of the Ministry of Environment, Forest and Climate Change and the State Environmental Impact Assessment Authority, the Board sought clarification from these authorities through letters No. 20034 dated 05.12.2024 and No. 6158 dated 26.03.2025.The Board has not yet received any clarification from the Ministry of Environment, Forest and Climate Change regarding this matter. However, the Board granted Consent to Establish to the petitioner for the modernization project on the condition that all issues related to Environmental Clearance shall be governed by the clarification to be received from the Ministry or the State Environmental Impact Assessment Authority.
Page 12 of 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 31-May-2025 13:46:45
(xii) The petitioner was given ample opportunity to present their views.
Consent to Establish for the modernization project was granted subject to clarification from the Ministry. Consent to Operate was issued within the statutory period, ensuring no interruption in plant operations. However, the petitioner commenced construction before obtaining required approvals. The final determination regarding Environmental Clearance applicability will depend on clarification from the relevant authorities.
(xiii) The facts and circumstances reveal that the petitioner has intentionally withheld critical information from this Court to secure a favourable order.
IV. COURT'S REASONING AND ANALYSIS:
5. Heard the learned counsel for the parties and perused the materials placed on record.
6. The instant matter pertains to the grant of Consent to Operate under the provisions of the Water (Prevention & Control of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution) Act, 1981.
7. Consent to Establish and Consent to Operate are processed under the provisions of Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act. 1981. Both Acts clearly stipulate that if the State Pollution Control Board does not grant or refuse the Consent to Establish or Consent to Operate Page 13 of 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-May-2025 13:46:45 within 120 days from the date of receipt of a complete application, such consent shall be deemed to have been granted.
8. Section 25 of water act pertains to refusal or withdrawal of consent by the State Board. Specifically, sub-section (1) provides as follows:
"(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board, a. establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or b. bring into use any new or altered outlet for the discharge of sewage; or c. begin to make any new discharge of sewage:"
9. Sub-section (7) of the same section provides:
"(7) The consent referred to in sub-section (1) shall, unless given or refused earlier, be deemed to have been given unconditionally on the expiry of a period of four months of the making of an application in this behalf complete in all respects to the State Board."
10. In order to expedite industrial development, the Government of Odisha enacted the Odisha Industries Facilitation Rules, 2005, prescribing a shorter timeline for disposal of Consent to Establish applications: 120 days for Category A projects, 60 days for Category Page 14 of 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-May-2025 13:46:45 B projects, and 30 days for Category C projects. However, the disposal period for Consent to Operate applications remained at 120 days.
11. Subsequently, in 2015, the SPCB issued Office Order No. 6456 dated 15.04.2015 to facilitate quicker disposal of consent applications. All officers delegated powers to grant Consent to Establish and Consent to Operate were mandated to ensure disposal of applications within the stipulated time from the date the application is considered 'duly made and complete.
12. According to this order, the time limits for disposal of consent applications were revised as follows:
a. Category A: Consent to Establish: 60 days, Consent to Operate:60 days b. Category B: Consent to Establish: 45 days, Consent to Operate: 45 days c. Category C: Consent to Establish: 30 days, Consent to Operate:30 days
13. The primary issue that arises for consideration is whether the timelines set out in the said Office Order No. 6456 dated 15.04.2015 override the statutory timelines prescribed in the Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act 1981and whether non-disposal within the revised time limits would lead to deemed approval of the consent applications.
Page 15 of 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 31-May-2025 13:46:45
14. Upon perusal, it is evident that the SPCB Office Order No. 6456 dated 15.04.2015 was issued with the objective of ensuring expeditious disposal of applications. The timelines prescribed therein represent an ideal standard of promptness and efficiency that the Board should endeavor to achieve. However, these administrative timelines do not possess the force of law to override or curtail the statutory provisions under the parent legislations. The entitlement to deemed consent is governed exclusively by the statutory period of 120 days as prescribed under the Water (Prevention & Control of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution) Act. 1981, and non-compliance with the revised deadlines cannot be construed as deemed grant of consent.
15. In the present case, the petitioner applied for renewal of Consent to Operate on 04.12.2024. The SPCB granted the Consent to Operate vide Order No. 6948 dated 31.03.2025, i.e., within the statutory period of 120 days. Therefore, the assumption of the petitioner that deemed consent had already accrued in their favour is misplaced.
16. Further, with respect to the modernisation project proposed by the petitioner, it is noted that the throughput is proposed to be enhanced from 2,40,000 TPA to 4,00,000 TPA, while the final output remains unchanged. The petitioner contended that since there is no change in the output, no Environmental Clearance is required. Page 16 of 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 31-May-2025 13:46:45
17. However, Environmental Clearance is governed by the provisions of the Environment (Protection) Act and the EIA Notification, 2006, administered by the Ministry of Environment, Forest and Climate Change (MoEF&CC) and the State Environmental Impact Assessment Authority (SEIAA). Given the ambiguity regarding the applicability of Environmental Clearance, the SPCB prudently sought clarification from the MoEF&CC and SEIAA via letters dated 05.12.2024 and 24.03.2025. In the meantime, the Consent to Establish for the modernization project was granted by the Board, explicitly subject to such clarification from the competent environmental authority. The Consent to Operate for the existing operations was granted within the statutory period without interruption to the functioning of the plant. The question of whether Environmental Clearance is applicable for the modernization project shall be governed by the clarification received from MoEF&CC or SEIAA, and the petitioner's project remains subject to compliance with that determination.
18. In view of the above, this Court is not inclined to accept the contention that the timelines under the Office Order operate to curtail or supersede the statutory provisions.
19. Since theConsent to Operate was granted within the statutory period, the plea for deemed consent is untenable. Moreover, with regard to the modernisation project, the petitioner is directed to Page 17 of 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-May-2025 13:46:45 await the requisite clarifications fromthe MoEF&CC and SEIAA before proceeding further.
V. CONCLUSION:
20. Having considered the matter in its entirety and in light of the foregoing analysis, this Court finds no justifiable grounds to exercise its jurisdiction for interference. The petitioner has failed to establish a prima facie case, and it is reiterated that the statutory period of 120 days exclusively governs the deemed approval of consent applications.
21. Accordingly, the Writ Petition is dismissed.
22. Interim orders, if any, stand vacated.
(Dr.S.K. Panigrahi) Vacation Judge Orissa High Court, Cuttack, Dated 30TH May, 2025/ Page 18 of 18