ARCELORMITTAL INDIA PRIVATE LIMITED & ANR vs UNION OF INDIA & ORS

2024-02-29 Information

+ W.P.(C) 224/2017 & CM APPLs. 1032/2017 & 46950/2022
ARCELORMITTAL INDIA PRIVATE LIMITED &
ANR. ….. Petitioners
versus

UNION OF INDIA & ORS. ….. Respondents

INDEX

Sl. No.
Contents
Paragraph Nos.
1
Introduction
1 – 2
2
Factual Matrix
3 – 3.36
3
Submissions on behalf of the Petitioner

4 4.28
4
Submissions on behalf of Respondent no. 1 & 2 Union of India

5-5.16
5
Submissions on behalf of Respondent No. 3 & 4 State of Jharkhand

6-6.6
6
Rejoinder on behalf of Petitioner
7-7.19
7
Analysis and Findings of Court
8-12
I
Ramifications of the Shah Commission Report
13-18
II
Preparation of Sustainable Mining Plan
19-21
III
Effect of Removal of Difficulties Order
22-26
IV
Internal communications and Office Memorandum of Respondents not conferring any right on the Petitioner
27
V
No Discriminatory Treatment to Petitioner

28-32
VI
Interim Order by this Court not Enuring to the Benefit of the Petitioner for Conferring Final Relief

33-37
VII
Mere fact that Mineral Concession Rules, 2016 has been withdrawn, does not mean that cut off date of 11th January, 2017 has lost its relevance.

38-45
VIII
No Vested Right in favour of the Petitioner

46-53
IX
Allocation of Natural Resources to be guided by Larger Public Good

54-56
X
Petitioner bound by Statutory Provisions

57-58
XI
Delay on part of the Respondents does not entitle the Petitioner for any Relief in the absence of any Rights in its favour

59-65
XII
Precautionary Principle

66-67
XIII
Judgments of Rajasthan High Court Relied Upon by Petitioner, Distinguishable
68.1-69
XIV
No Advantage can be Derived by the Petitioner on account of Subsequent Approvals received by the Petitioner

70-71
XV
Letter of Intent does not constitute a binding agreement

72-76
XVI
Petitioner having no Vested Right to derive Benefit under the Old Regime of First-Come-First-Serve

77-78
XVII
Area in question not available for mining till the Carrying Capacity Study and Mining Plan were made

79-89
XVIII
No Consequential Relief in favour of the Petitioner on account of any delay

90
XIX
No Entitlement in favour of the Petitioner

91-94

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 224/2017 & CM APPLs. 1032/2017 & 46950/2022
ARCELORMITTAL INDIA PRIVATE LIMITED &
ANR. ….. Petitioners
Through: Dr. Abhishek Singhvi, Mr. Krishnan Venugopal, Mr. Jayant Sud, Sr. Advocates with Mr. Ashish Rana, Mr. Vishrov Mukherjee, Mr. Anuj Berry, Mr. Girik Bhalla, Mr. Anurag Kr. Singh, Ms. Priyanka Vyas, Mr. Madhav Mishra, Mr. Kartik Jasra, Mr. Shivam Jasra, Mr. Shivam Nagpal, Mr. Prannit Stefano, Mr. Gaurav Raj, Mr. Nilesh Mudgil, Advocates
versus

UNION OF INDIA & ORS. ….. Respondents
Through: Mr. Kirtiman Singh, CGSC with Mr. Waize Ali Noor, Ms. Vidhi Jain, Ms. Shreya Mehra, Mr. Varun Rajawat, Ms. Akshita J, Mr. Taha Yasin, Mrs. Hina Bhargava, Mr. Vikash Kumar Mr. Hina Yadav, Advocates for R-1 & 2 and Mr. Vinod Kumar, Under Secretary M/o of Mines
Mr. Jayant Mohan, Mr. Karma Dorjee, Ms. Adya Shree Dutta, Advocates for R-3&4

% Reserved on: 24th November, 2023
Date of Decision: 29th February, 2024

CORAM:
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MS. JUSTICE MINI PUSHKARNA
J U D G M E N T
MINI PUSHKARNA, J:

INTRODUCTION:
1. The instant petition initially laid a challenge to Section 10A(2)(c) of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 (MMDR Act) and Rule 8(4) of the Minerals (Other than Atomic and Hydro Carbons Energy Minerals) Concession Rules, 2016 (Mineral Concession Rules, 2016) on the ground that the same were ultra vires to the Constitution of India to the extent that they violated, restricted and affected the rights of the petitioner to conduct trade and business. However, as recorded in the order dated 27th April, 2023, the petitioner gave up the challenge to the legality and validity of the said Section and Rule, and confined the petition to the interpretation of the provisions. The petitioner also filed an application, being CM APPL. No. 46950/2022 praying for grant of mining lease in its favour.
2. The parties involved in the present dispute are as follows:
i. Petitioner No. 1, i.e. ArcelorMittal India Private Limited (also referred to as Petitioner).
ii. Petitioner No. 2 is the authorised representative of Petitioner No. 1. The Petitioners shall be read in conjunction as Petitioner for the sake of brevity.
iii. Respondent No. 1 is the Union of India/Central Government, represented through the Ministry of Mines (also referred to as Ministry of Mines).
iv. Respondent No. 2 is the Union of India/Central Government represented through the Ministry of Environment, Forests and Climate Change (also referred to as Ministry of Environment and MoEFCC). The Respondent No.1 & 2 shall be read in conjunction as Union of India/Central Government/MoEFCC for the sake of brevity.
v. Respondent No. 3 is the State of Jharkhand/State Government represented through the Department of Industries, Mines and Geology (also referred to as Department of Mines).
vi. Respondent No. 4 is the State of Jharkhand/State Government represented through the Department of Forest and Ecology (also referred to as Department of Forest). The Respondent No. 3 & 4 shall be read in conjunction as State of Jharkhand/State Government for the sake of brevity.
FACTUAL MATRIX
3. Facts of the case stated in brief are as follows:-
3.1 Pursuant to a Gazette Notification dated 31st March, 2007 issued by respondent no. 3/Department of Mines, Government of Jharkhand under Rule 59 of the Mineral Concession Rules, 1960, the petitioner made an application dated 29th June, 2007 for grant of mining lease for iron ore and manganese ore in Meghahatuburu Taluka, Karampada Reserve Forest (KP), District West Singhbhum, Jharkhand over an area of about 500 hectares (subject area) for captive use.
3.2 The said application of the petitioner was recommended by the State Government to the Central Government on 11th February, 2008 for grant of mining lease in the said area, identified as Forest Compartment KP-33, KP-34 and KP-35.
3.3 The Central Government vide its letter dated 05th June, 2008 accorded its approval under proviso to Section 5(1) of MMDR Act for grant of mining lease to the petitioner in respect of the subject area for thirty years, subject to fulfilment of certain conditions, including obtaining Forest Clearance (FC) under the Forest Conservation Act, 1980 (FC Act, 1980).
3.4 The State Government issued a Letter of Intent (LOI) for grant of the mining lease vide its letter dated 10th June, 2008, subject to fulfilment of conditions, including approval under Section 2(ii) of FC Act, 1980.
3.5 On 16th April, 2009, the petitioner made an application for diversion of 202.35 hectares of forest land vide letter dated 16th April, 2009 to the Nodal Officer, Department of Forest, Government of Jharkhand. The petitioner also filed Form A seeking prior approval under Section 2(ii) of FC Act, 1980.
3.6 The petitioner had also applied for preparation of a Mining Plan which was further revised and submitted with the Indian Bureau of Mines, Ministry of Mines, Kolkata (Indian Bureau of Mines) on 05th April, 2009 for its approval. On 16th September, 2009, the Indian Bureau of Mines approved the Mining Plan submitted by the petitioner subject to certain conditions.
3.7 On 10th September, 2009, based on the Site Inspection Report, the Divisional Forest Officer, Saranda, recommended and forwarded the FC application of the petitioner to the Conservator of Forest, Chaibasa. Thereafter, the Conservator of Forest, Chaibasa, conducted a site inspection on 06th November, 2009 and forwarded the petitioners recommendation to Regional Chief Conservator (Forests), Jhamshedpur on 14th December, 2009.
3.8 In April, 2010, the petitioners file was forwarded by the Regional Conservator of Forest to the Principal Chief Conservator (Forest) for his approval. On 15th June, 2010, the Principal Chief Conservator of Forest recommended and forwarded petitioners diversion proposal to respondent no. 4 for obtaining approval of respondent no. 2/Ministry of Environment, Forest & Climate Change (MoEFCC) under Section 2(ii) of FC Act, 1980. Since the proposal was not forwarded to respondent no. 2 for approval under Section 2(ii), the petitioner made several representations dated 21st June, 2010, 18th August, 2010 and 21st June, 2011 to the State Government i.e. respondents no. 3 and 4, requesting it to forward the proposal for grant of approval under Section 2(ii) of FC Act, 1980 to respondent no. 2.
3.9 In the meanwhile, a Commission of Enquiry for illegal mining of Iron Ore and Manganese Ores comprising Justice M.B. Shah was constituted, vide notification dated 22nd November, 2010.
3.10 Subsequently, in the 20th Meeting of Expert Appraisal Committee for Environment Appraisal of Mining Projects, appointed by the Government of India, the proposal with respect to the petitioner herein was considered. Thus, the Committee recommended grant of Environment Clearance (EC) to the petitioner, subject to the petitioner obtaining Forestry and Wildlife Clearances.
3.11 Thereafter, respondent no.4 forwarded the FC proposal of the petitioner to respondent no.2/MoEFCC under Section 2(ii) of the FC Act, 1980. Pursuant thereto, the Conservator of Forest, Regional Office, Ministry of Environment and Forest, Bhuvaneshwar, on the basis of the directions given by respondent no.2, carried out the site inspection on 07th 08th November, 2013. Later, the Additional Principal Chief Conservator of Forest forwarded the proposal to the respondent no.2/MoEFCC along with Site Inspection Report with recommendation for consideration vide letter dated 04th December, 2013.
3.12 Subsequently, the petitioner made a representation in the Meeting of the Forest Advisory Committee on 16th January, 2014. After detailed discussions, the Forest Advisory Committee sought additional information from respondent no.4, i.e., State Forest Department, Government of Jharkhand on two issues viz. information/document on Integrated Wildlife Management Plan and comments of Chief Wildlife Warden on the status of proposed lease to be granted to the petitioner herein. The respondent no.4 vide letter dated 04th March, 2014 clarified the said issues stating that the Government of Jharkhand was in the process of approving the Integrated Wildlife Management Plan. Further, it was informed that the proposed lease was outside the purview of the Conservation Reserve as per the draft Integrated Wildlife Management Plan.
3.13 The proposal for grant of Stage I approval under Section 2(ii) of the FC Act, 1980 to the petitioner was placed before the Meeting of the Forest Advisory Committee on 29th April, 2014, which sought additional information from the State Forest Department. The additional information was given by the State Forest Department vide letter dated 14th August, 2014 informing that the petitioners area falls outside the conservation zone as per Integrated Wildlife Management Plan.
3.14 The Justice M.B. Shah Commission of Enquiry submitted its first report on illegal mining of Iron and Manganese Ore in the State of Jharkhand on 14th October, 2013. The said report was placed before the Parliament. Thereafter, based on the Commission Report, the Ministry of Mines submitted Action Taken Report (ATR) to the Cabinet which was considered and accepted on 30th July, 2014. Thus, as per the ATR, the following were accepted:
(i) The MoEFCC will commission a study report to assess carrying capacity of Saranda Forest to suggest annual cap of Ore.
(ii) The MoEFCC will not accept new proposals for grant of approval under the FC Act, 1980 for diversion of forest land for mining.
(iii) The MoEFCC will constitute a multi-disciplinary team to prepare a plan for sustainable mining in the Saranda Forest.
3.15 In compliance with the aforesaid ATR, the respondent no.2/MoEFCC on 01st August, 2014 directed respondent no.4/Government of Jharkhand not to forward any new diversion proposals for grant of FC and stated that the pending proposals with the MoEFCC would be kept in abeyance till the completion of a scientific study on Saranda Forest Division.
3.16 Accordingly, in compliance of the ATR, the MoEFCC commissioned the services of Indian Council of Forest Research and Education, Dehradun (ICFRE, Dehradun) for conducting the Carrying Capacity Study in Saranda Forest Division in West Singhbhum District, Jharkhand.
3.17 Subsequently on 12th January, 2015, the respondent no.1 made amendments to the MMDR Act. Section 10A was introduced to the MMDR Act, which provided that all applications received prior to the date of commencement of the said Amendment, shall become ineligible except where the Central Government has communicated previous approval as required under Section 5(1) of MMDR Act for grant of a mining lease. Thereafter on 04th March, 2016, the respondent no.1 notified Mineral Concession Rules, 2016 which provided the cut-off date of 11th January, 2017 for execution of the mining lease.
3.18 After the introduction of Section 10A of the MMDR Act as per the amendment carried out in the year 2015, the petitioner vide its letter dated 20th May, 2015 requested the MoEFCC for grant of in principle approval under Section 2(ii) of the FC Act, 1980. By its letter dated 13th July, 2015, the MoEFCC reiterated its stance that EC and Stage I and Stage II FC for which mining lease has not been executed, will not be considered till completion of Carrying Capacity Study. The petitioner again wrote a letter dated 15th March, 2016 to MoEFCC thereby requesting for grant of in principle approval under Section 2(ii) of the FC Act, 1980.
3.19 In the interim, the ICFRE, Dehradun submitted the draft final report on the carrying capacity of Saranda Forest on 28th March, 2016. The said report was examined by a Committee constituted for the said purpose by MoEFCC. Subsequently, the Carrying Capacity Study of Saranda Forest was accepted by the respondent no.1. A Committee was constituted for preparing a plan for sustainable mining in Saranda Forest within a period of three weeks from 26th August, 2016, i.e., by 16th September, 2016.
3.20 The petitioner again reiterated its request vide letter dated 26th September, 2016 for grant of in principle approval under Section 2(ii) of the FC Act, 1980. However, the said request of the petitioner was not considered, pending finalisation of the plan for sustainable mining in Saranda Forest.
3.21 Communication dated 20th October, 2016 was issued by the Ministry of Mines stating inter alia that since the deadline, as stipulated in Section 10A(2)(c) of MMDR Act, was fast approaching, the State Government should consider grant of FC under Section 2(iii) of the FC Act, 1980. Subsequently, by letter dated 27th October, 2016, Department of Mines, Government of Jharkhand recommended the case of the petitioner for general approval under Section 2(iii) of the FC Act, 1980 for signing of the mining lease.
3.22 The MoEFCC issued guidelines on 16th November, 2016 permitting the applicants for getting forest land on lease under Section 2(iii) of the FC Act, 1980. These guidelines permitted grant of approval under Section 2(iii) of the FC Act, 1980 for applicants whose diversion application under Section 2(ii) of the FC Act, 1980 had not been considered.
3.23 On 30th November, 2016, the MoEFCC issued guidelines for diversion of forest land for non-forest purpose, which provided that approval under Section 2(iii) of the FC Act, 1980 would be granted for signing of mining lease, subject to compliance with Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2016.
3.24 On 21st December, 2016, the Department of Forest, Government of Jharkhand recommended the FC proposal under Section 2(iii) of the FC Act, 1980 to MoEFCC for execution of the mining lease on the basis of draft mining plan for Saranda. The proposed lease area of the petitioner fell in the Mining Zones I and II, being Forest Compartment Nos. KP-33, KP-34 and KP-35.
3.25 Thereafter, on 26th December, 2016, a meeting of Forest Advisory Committee was held and the proposal of the petitioner for grant of Stage I approval under Section 2(ii) of the FC Act, 1980 was considered. The Forest Advisory Committee decided that the matter would be considered after receipt of the Site Inspection Report from Regional Office, Ranchi and the matter stood deferred till such time. Subsequently, the Site Inspection Report dated 30th December, 2016 of the Additional Principal Chief Conservator of Forests (Central) was forwarded to the respondent no.2.
3.26 On 04th January, 2017, the Mines and Minerals (Development and Regulation) Removal of Difficulties Order, 2017 (Removal of Difficulties Order) clarified that if EC had not been obtained on or before 11th January, 2017, but all other conditions specified in the LOI have been fulfilled, the mining lease shall be granted by the concerned State Government.
3.27 On 05th January, 2017, Ministry of Mines wrote letter to Chief Secretaries, State Governments to expedite grant of mining lease for cases saved under Section 10A(2)(c) of MMDR Act.
3.28 Subsequently, on 06th January, 2017, the petitioner made a representation to MoEFCC for an early disposal of its approval application in view of submission of Site Inspection Report dated 30th December, 2016 by the Regional Office. Thereafter, first writ petition was filed on behalf of the petitioner on 07th January, 2017 being W.P.(C) 175/2017. By order dated 09th January, 2017, this Court disposed of the said writ petition with directions to consider the application of the petitioner expeditiously prior to 11th January, 2017 so that the mining lease could also be executed prior to the said date.
3.29 Subsequently, a second writ petition, i.e., the present writ petition, being W.P.(C) 224/2017 was filed on 09th January, 2017 by the petitioner challenging the vires of Section 10A(2)(c) of the MMDR Act and Rule 8 of Mineral Concession Rules, 2016. By order dated 10th January, 2017 passed in the said writ, this Court directed that the cut-off date of 11th January, 2017 would not come in the way of the petitioner if they are ultimately found entitled to relief.
3.30 At the same time, a third writ petition being W.P.(C) 151/2017 was filed by the petitioner on 10th January, 2017 in High Court of Jharkhand at Ranchi. This writ petition was subsequently dismissed as withdrawn by order dated 05th February, 2019.
3.31 By order dated 11th January, 2017, the MoEFCC rejected the application of the petitioner for FC under Section 2(iii) of the FC Act, 1980 in view of the fact that the Plan for Sustainable Mining in Saranda Forest, pursuant to the M.B. Shah Commission of Enquiry Report, was still under preparation and that it would not be permissible to assign any forest land by way of lease in the Saranda Forest region. Thus, a fourth writ petition, being W.P.(C) 1376/2017 was filed on 15th February, 2017 on behalf of the petitioner before this Court challenging the order dated 11th January, 2017.
3.32 In the meanwhile, pursuant to the report of the ICFRE, Dehradun, the Management Plan for Sustainable Mining was accepted by the Central Government vide letter dated 08th June, 2018.
3.33 The fourth writ petition filed on behalf of petitioner herein came to be disposed of by a learned Single Judge of this Court vide order dated 09th April, 2019 with a direction to re-examine the case of the petitioner for grant of FC under Section 2 (iii) of the FC Act, 1980 in view of the fact that the Management Plan for Sustainable Mining had been brought into effect.
3.34 Subsequently, the Forest Advisory Committee reconsidered the proposal of the petitioner for FC under Section 2(iii) of the FC Act, 1980 and sought additional information from respondent nos. 1 and 3, which was duly provided by both the respondents.
3.35 By its communication dated 16th December, 2020 to the MoEFCC, the Ministry of Mines stated that the LOI in favour of the petitioner was not valid as the period of two years under Section 10A(2)(c) of the MMDR Act for obtaining the clearances was over. However, since this Court vide its order dated 10th January, 2017, in the present writ petition, had observed that the cut off date shall not come in the way of reconsideration of the application of the petitioner for FC, a decision may be taken by the MoEFCC accordingly.
3.36 Subsequently on 04th October, 2021, the MoEFCC granted prior approval (Stage – I) under Section 2(iii) of the FC Act, 1980 in favour of the petitioner. Thereafter, Stage II approval was granted in favour of the petitioner on 09th May, 2022 by the MoEFCC, after the petitioner fulfilled the conditions of Stage I approval. Since the petitioner does not have the approval of the Central Government under Section 2(ii) of the FC Act, 1980 and the EC under the Environment (Protection) Act, 1986 (EP Act, 1986), the petitioner has not been able to commence the mining operations in the Saranda Forest Division, Jharkhand till date. Thus, by way of the present writ petition, it is prayed that the petitioner may be granted requisite approval and clearance in order to enable the petitioner to commence the mining operations in the area in question situated in Saranda Forest Division, Jharkhand.
SUBMISSIONS ON BEHALF OF THE PETITIONER
4. On behalf of the petitioner, following contentions have been raised:
4.1 The petitioner submitted an application for diversion of 202.35 hectares of forest land under Section 2(ii) of the FC Act, 1980 to Department of Forest, Government of Jharkhand. Rule 6 of the Forest (Conservation) Rules, 1981 requires State Governments to process FC within one hundred and eighty days, i.e., by 13th October, 2009. However, State of Jharkhand forwarded the petitioners proposal to MoEFCC after a delay of over four years on 24th May, 2013.
4.2 Approval of mining plan was a condition under the LOI and was fulfilled by the petitioner within approximately one year of grant of LOI.
4.3 After a delay of four years, respondent no.4/State of Jharkhand forwarded petitioners proposal for grant of Stage I approval under Section 2(ii) of the FC Act, 1980 to MoEFCC. Rule 6 of the Forest (Conservation) Rules, 1981 requires MoEFCC to process the FC applications, within one hundred and twenty days, i.e., by 21st September, 2013. However, approval under Section 2(iii) of the FC Act, 1980 was granted on 09th May, 2022.
4.4 Mining was not prohibited in the subject area. Pursuant to the first report on illegal mining in Jharkhand issued by the Shah Commission on 14th October, 2013, MoEFCC proposed a Carrying Capacity Study for the Saranda Forest area. It was decided that till the completion of the Carrying Capacity Study, MoEFCC would not accept any new proposals for issuance of EC and FC, and the existing ones would be kept in abeyance. No observations were made regarding the petitioners application under Section 2 of the FC Act, 1980.
4.5 The fact that petitioner has been granted Stage I and Stage II approval under Section 2(iii) of the FC Act, 1980, though belatedly, makes it clear that mining is not prohibited.
4.6 As per the Management Plan for sustainable mining, mining is permitted in the Mining Zones identified. The mining area of the petitioner falls within Mining Zones I and II and compartment nos. KP-33, KP-34 and KP-35. Therefore, petitioners application is compliant with the Management Plan for sustainable mining.
4.7 Admittedly, as per Forest Advisory Committee also, the petitioner was within the area where mining was permitted. Had petitioner not been in the permissible area, its application would have been rejected at that time itself.
4.8 The Forest Advisory Committee and the MoEFCC kept petitioners application under Section 2 of the FC Act, 1980, pending till completion of Carrying Capacity Study by ICFRE, Dehradun. The study was completed after two years, i.e., on 26th August, 2016. The petitioner made three representations to MoEFCC for grant of approval under Section 2 of the FC Act, 1980 before the cut-off date. However, the petitioners approval was not considered by MoEFCC, even though proposals from Neelachal Ispat Nigam Limited (NINL) and Steel Authority of India (SAIL) were processed.
4.9 The Carrying Capacity Study was completed after two years, till which time the petitioners application under Section 2 of the FC Act, 1980 was kept in abeyance. Even after finalisation of the Carrying Capacity Study, MoEFCC constituted a Committee for preparation and finalisation of the Plan for Sustainable Mining in Saranda Forest. The Committee was to finalise the plan within three weeks, i.e., by 16th September, 2016. However, the final plan was approved by MoEFCC on 08th June, 2018, i.e., after a delay of almost two years.
4.10 The petitioner requested to MoEFCC for grant of in principle approval under Section 2(ii) of the FC Act, 1980 to enable the petitioner to meet the requirements of Section 10A(2)(c) of MMDR Act. However, petitioners request was not considered, pending finalisation of the Plan for Sustainable Mining in Saranda Forest.
4.11 It is pertinent to note that the communication dated 20th October, 2016 issued by the Ministry of Mines clarified that the intent of the Central Government, i.e., respondent nos. 1 and 2 herein, for grant of approval under Section 2(iii) of the FC Act, 1980 would be adequate for fulfilment of conditions under the LOI/execution of mining lease. Contemporaneously, State of Jharkhand vide its letter dated 27th October, 2016 also agreed that grant of approval under Section 2(iii) of the FC Act, 1980 would suffice for the purpose of execution of the mining lease. In fact, State of Jharkhand also recognised the urgency in the matter, given the approaching cut off date of 11th January, 2017.
4.12 On 21st December, 2016, Department of Forest, Government of Jharkhand recommended FC proposal under Section 2(iii) of the FC Act, 1980 to MoEFCC for execution of the mining lease on the basis of Draft Mining Plan for Saranda. This was consistent with the Draft Sustainable Mining Plan for Saranda Forest, which was pending with the MoEFCC for its approval. There were no changes to the Draft and the Final Mining Plan. The petitioner was compliant with the Draft and Final Mining Plan for Sustainable Mining.
4.13 In its meeting dated 26th December, 2016, the Forest Advisory Committee decided that the matter would be considered after receipt of the Site Inspection Report from Regional Office, Ranchi and the matter stood deferred till such time. However, in the same meeting, the Forest Advisory Committee recommended grant of Section 2(iii) FC approval to a similarly placed entity, i.e. NINL, subject to outcome of the NEERI study report. Similar dispensation ought to have been granted to the petitioner, subject to finalisation of the Management Plan for Sustainable Mining. NEERIs study is a similar study like Saranda Carrying Capacity Study by ICFRE, Dehradun, at a different location, i.e., Odisha. Evidently, the MoEFCC followed a discriminatory approach for the petitioner.
4.14 The approval under Section 2(iii) of the FC Act, 1980 is required for grant of lease over the forest land, whereas the approval under Section 2(ii) is for diversion of forest land for use for non-forest purposes. Both operate for different purposes. The approval under Section 2(iii) of the FC Act, 1980 is not predicated on approval under Section 2(ii) of the FC Act, 1980.
4.15 MoEFCC started issuing approvals under Section 2(iii) of FC Act, 1980 pursuant to respondent no.1s letter dated 20th October, 2016. Given that this dispensation was specifically for applicants under Section 10A(2)(c) of MMDR Act, the intent of the Central Government was that grant of FC under Section 2(iii) of FC Act, 1980 would be considered adequate for fulfilment of conditions in the LOI and for grant of mining lease.
4.16 Approval under Section 2(iii) of FC Act, 1980 is sufficient for grant of mining lease. Respondent no.1 cannot take a stand contrary to its own contemporaneous position.
4.17 Conditions in the LOI dated 10th June, 2008 have been fulfilled. In fact, petitioner was eligible for grant of mining lease as on 11th January, 2017, had it not been for the delays attributable to the respondents.
4.18 The two years time period under Section 10A(2)(c) of MMDR Act cannot be interpreted in a manner to deny grant/execution of mining lease. Even otherwise, the Union of India did not challenge the order dated 10th January, 2017.
4.19 The cut-off period under Section 10A(2)(c) of MMDR Act is not an absolute bar on grant of mining lease after 11th January, 2017. In the past, State Governments have been directed, as by the High Court of Rajasthan, to grant and execute mining lease to respective applicants despite expiry of two years period as stipulated under Section 10A(2)(c) of the MMDR Act.
4.20 The approval under Section 2(iii) of the FC Act, 1980 could have been granted by respondent no.2 by first considering the application of the petitioner. However, approval was rejected as approval of the Draft Mining Plan, was kept pending for two years from 26th August, 2016 to 08th June, 2018. There were no changes in the draft and the final Mining Plan. In fact, the State Government has recommended grant of clearance based on the draft plan for similarly placed project proponents. However, a similar dispensation was not given to the petitioner. SAIL was granted approval on 11th August, 2017, despite the Management Plan for Sustainable Mining not having been finalised. SAILs mine is situated in the same mining zone as the petitioner. However, the Forest Advisory Committee rejected the petitioners application in a discriminatory manner.
4.21 Despite directions to prepare the Sustainable Plan for Mining in Saranda within three weeks from 26th August, 2016, it was prepared after a delay of two years, i.e., on 08th June, 2018. Even after approval of the Sustainable Plan for Mining on 08th June, 2018, MoEFCC granted Stage II approval under Section 2(iii) of FC Act, 1980 to the petitioner after a delay of 4 years, i.e., 09th May, 2022.
4.22 The MoEFCCs handbook on FC Act, 1980 provides that approval under Section 2(iii) shall be obtained before execution of a mining lease. Therefore, grant of approval under Section 2(iii) of the FC Act, 1980, would suffice for the purpose of execution of mining lease, as sought in the present petition.
4.23 The legal rights saved by this Courts order dated 10th January, 2017 cannot be said to be whittled down or diluted by Section 10A(2)(d) of the MMDR Act. Grant of LOI and Section 10A(2)(c) of the MMDR Act created vested rights in favour of the petitioner for grant of mining lease, a right under Article 300A of the Constitution. This cannot be diluted by Act of Legislature.
4.24 Section 10A(2)(d) of MMDR Act applies only to cases under Section 10A(2)(b) of the said Act. The first proviso to Section 10A(2)(b) of the MMDR Act provides that all applications under Section 10A(2)(b) of the said Act would stand lapsed from commencement of the MMDR Amendment Act, 2021. However, such a provision was not included in Section 10A(2)(c) of the said Act. Therefore, the legislative intent was to limit lapsing only for cases covered under Section 10A(2)(b) of the MMDR Act, 1957. The petitioners case is a case covered under Section 10A(2)(c) of the MMDR Act.
4.25 Section 10A(2)(d) will have prospective effect and cannot apply retrospectively to the petitioner. The petitioner has invested substantially towards the mine. These investments cannot be allowed to go to waste. Therefore, the petitioners vested rights cannot be hampered on the ground of alleged delay by petitioner in obtaining the mining lease before 11th January, 2017.
4.26 Approval under Section 2(ii) of the FC Act, 1980 is not required for grant of mining lease. Approval under Section 2(ii) is for diversion of forest land for use for non-forest purposes as per Ministry of Mines letter dated 05th January, 2017 and the MoEFCCs handbook on FC Act, 1980 dated 18th March, 2019. Therefore, approval under Section 2(ii) of the FC Act, 1980 can be taken before commencement of mining operations.
4.27 Expert Appraisal Committee appointed by the MoEFCC in its 20th Meeting dated 19th October, 2011 recommended grant of EC to the petitioner subject to the petitioner obtaining Forestry and Wildlife Clearances. Further, Removal of Difficulties Order dated 04th January, 2017 clarified that notwithstanding anything contained in Section 10A(2)(c) of MMDR Amendment Act, 2015, if EC had not been obtained on or before 11th January, 2017, but all other conditions specified in the LOI had been fulfilled, the mining lease shall be granted by the concerned State Government. Accordingly, prior grant of EC is not a pre-requisite for grant of mining lease in the present case.
4.28 On behalf of the petitioner, the following judgments have been relied upon:
(i) State of Rajasthan Vs. Shree Cement Ltd., Judgment dated 20th October, 2022 in D.B. Special Appeal Writ No. 1670/2018.
(ii) Wonder Cement Limited Vs. State of Rajasthan & Ors., Judgment dated 23rd August, 2017 in S.B. Civil Writ Petition No. 126/2017.
(iii) Ojaswi Marbles and Granites Pvt. Ltd. Vs. State of Rajasthan and Ors., 2021 SCC OnLine Raj 4226.
(iv) N.U. Vista Limited Vs. Union of India and Ors., 2021 SCC OnLine Raj 3252.
(v) Indocil Silicons Pvt. Ltd. Vs. Union of India & Ors., Judgment dated 27th May, 2022 in W.P. No. 1920/2021.
(vi) Central Warehousing Corporation Vs. Adani Ports Special Economic Zone Limited (APSEZL) & Ors., 2022 SCC OnLine SC 1398.
(vii) MSEDCL Vs. Adani Power Maharashtra Ltd. & Ors., 2023 SCC OnLine SC 233.
(viii) Punjab SEB Ltd. Vs. Zora Singh, (2005) 6 SCC 776.
(ix) Mohd. Kavi Mohamad Amin Vs. Fatmabai Ibrahim, (1997) 6 SCC 71.
(x) Shriram Builders Vs. State of Madhya Pradesh, 2007 SCC OnLine MP 325.
(xi) MD, Army Welfare Housing Organization Vs. Sumangal Sevices (P) Ltd., (2004) 9 SCC 619.
(xii)Commissioner of Customs (Imports) Vs. Tullow India Operation Ltd., (2005) 13 SCC 789.
(xiii)Surya Prakash Vs. State of Rajasthan, 2012 SCC OnLine Raj 1606.
(xiv)Devendra Kumar Vs. State of Uttaranchal & Ors., (2013) 9 SCC 363.
SUBMISSIONS ON BEHALF OF RESPONDENT Nos. 1 & 2 UNION OF INDIA

5. On behalf of respondents/Union of India, the following contentions have been raised:
5.1 The petitioner has not fulfilled the conditions of the LOI dated 10th June, 2008. The petitioner has obtained approval only under Section 2(iii) of the FC Act, 1980, whereas approval under Section 2(ii) of the FC Act, 1980 is still pending. The petitioner is not entitled to mining lease without approval under Section 2(ii).
5.2 Mining lease cannot be granted to the petitioner, since as on 11th January, 2017, the cut-off date under Section 10A(2)(c) of MMDR Act, mining in the subject area was not permitted. Since the cut-off date of 11th January, 2017 has expired, now only auction is possible.
5.3 EC was given only if a party had FC. Since there was no FC in favour of the petitioner, the EC dated 21st October, 2011 had no significance.
5.4 No permission for mining has been granted in the area in question since the year 2011.
5.5 The general approval given to the petitioner by way of letter dated 27th October, 2016 has no meaning, since, on the said date, mining was not allowed in the area. If mining was not allowed on that date, there is no question of getting any benefit of approval as granted by letter dated 27th October, 2016.
5.6 Even if Union of India had defaulted and has delayed the processing of applications of the petitioner, even then the statutory requirement of Section 10A(2)(c) of MMDR Act cannot be ignored. The petitioner cannot plead that the statute will not operate qua it. Since the petitioner is not participating in the auction, he wants to get the area in question ousted from the auction.
5.7 There was no selection process followed by the Central Government for granting permission for mining lease. The parties were chosen on first- come-first-serve basis. Therefore, no vested right accrued in favour of the petitioner.
5.8 The protection granted to the petitioner vide order dated 10th January, 2017 passed by this Court was granted to the petitioner owing to the challenge to the constitutionality of the Act and the Rules. However, by order dated 27th April, 2023, the petitioner has given up its challenge to the Act as well as the Rules. Since the challenge to the constitutionality of the Act and the Rules has been given up by the petitioner, the protection as granted by this Court vide order dated 10th January, 2017, is no longer available to the petitioner.
5.9 The Forest (Conservation) Rules, 1981 (FC Rules) do not mandate the State Governments to process the Forest Clearances within one hundred and eighty days.
5.10 The approval of the Mining Plan submitted by the petitioner by the Indian Bureau of Mines does not imply the approval of the Central Government.
5.11 The Removal of Difficulties Order is not applicable to the case of the petitioner, as admittedly, no mining leases whatsoever were executable in the Saranda Forest Region. Therefore, the petitioner would not be entitled to the benefit of the said order.
5.12 The contention of the petitioner that it is now entitled to the benefit of the aforesaid order of 2017, is clearly misconceived inasmuch as in terms of the said order itself, the benefit was available only till 11th January, 2017 and not thereafter. The legislature has not just intended for the completion of conditions of previous approval or LoI but of the process of grant of mining lease itself culminating into a mining lease deed within the stipulated time period of two years commencing from 12th January, 2015. That is why, the phrase (the mining lease shall be granted) was used by the Legislature in the provision and the period of only two years is prescribed under it.
5.13 The Shah Commission in its report dated 14th October, 2018 had clearly and categorically recommended that no fresh leases should be granted in the Saranda Region. The proposed mining area of the petitioner was included in the proposed conservation reserve under Wildlife Protection Act, 1972.
5.14 The case of the petitioner and NINL are not similar and not of the same region. The scope and study of ICFRE, Dehradun and NEERI are different. The proposal of NINL is located in the Keonjhar and Sundergarh districts of Odisha at a distance of approximately 16 kms from the Saranda Forest. The situation of locality factors in both the areas in terms of landscape integrity, wildlife, forest cover is different. Therefore, the decision taken in one cannot be compared with the decision taken in another case.
5.15 No EC and FC could be granted to the petitioner till the finalisation of the Sustainable Mining Plan, which was being prepared pursuant to Shah Commission Report.
5.16 On behalf of respondent/Union of India, the following judgments have been relied upon:
(i) Lafarge Umiam Mining (P) Ltd Vs. Union of India, (2011) 7 SCC 338.
(ii) Commissioner of Income Tax Vs. Hindustan Bulk Carriers, (2003) 3 SCC 57.
(iii) Sanjay Ramdas Patil Vs. Sanjay, (2021) 10 SCC 306.
(iv) Sultana Begum Vs. Prem Chand Jain, (1997) 1 SCC 373.
(v) Inbasagaran and Another Vs. S. Natarajan, (2015) 11 SCC 12.
(vi) State of Orissa Vs. Sudhansu Sekhar Misra, 1967 SCC OnLine SC 17.
(vii) Larsen & Toubro Limited Vs. Union of India and Ors., 2023 SCC OnLine Ori 706.
(viii) Muneer Enterprises Vs. Ramgad Minerals & Mining Ltd., (2015) 5 SCC 366.
(ix) State of T.N. Vs. Hind Stone, (1981) 2 SCC 205.
(x) Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1.

(xi) Centre for Public Interest Litigation Vs. Union of India, (2012) 3 SCC 1.
(xii) R. Muthukumar Vs. TANGEDCO, 2022 SCC OnLine SC 151.
(xiii) Doiwala Sehkari Shram Samvida Samiti Ltd. Vs. State of Uttaranchal, (2007) 11 SCC 641.
(xiv) B. Rudragouda Vs. Union of India, 2019 SCC OnLine Del 7736.
(xv) A.P. Christain Medical Educational Society Vs. Govt. of A.P., (1986) 2 SCC 667.
(xvi) Centre for Public Interest Litigation Vs. Union of India, (2012) 3 SCC 1.
(xvii) Dhanraj Vs. Vikram Singh, 2023 SCC OnLine SC 724.
(xviii) Hero Motocorp Ltd. Vs. Union of India (UOI) and Ors., 2022 SCC OnLine SC 1436.
(xix) Manohar Lal Sharma Vs. Principal Secy. , (2014) 9 SCC 516

(xxi) State of Rajasthan Vs. Sharwan Kumar Kumawat, 2023 SCC OnLine SC 898.

(xxii) State of T.N. Vs. K. Shyam Sunder, (2011) 8 SCC 737.
(xxiii) Union of India Vs. Kirloskar Pneumatic Co. Ltd., (1996) 4 SCC 453.
(xxiv) State of Odisha Vs. M/s MESCO Steel Ltd. & Ors., in (SLP No. 36578 of 2016).

(xxv) Savita Rawat Vs. State of M.P., 2016 SCC OnLine MP 542.
SUBMISSIONS ON BEHALF OF RESPONDENT Nos. 3 & 4 STATE OF JHARKHAND

6. On behalf of respondent nos. 3 and 4/State of Jharkhand, the following contentions have been made:
6.1 No undue delay of four years between 2009 and 2013 regarding Section 2(ii) of FC Act, 1980, FC is attributable to the State of Jharkhand. The State of Jharkhand was obligated to follow the due procedure and verifications before recommending the grant of Section 2(ii) of FC Act, 1980, Clearance for diversion of forest land from forest to non-forest use, i.e., for mining purposes.
6.2 The State of Jharkhand acted with promptitude in forwarding the recommendation for approval under Section 2(iii) of the FC Act, 1980 in view of the approaching deadline of 11th January, 2017 whereby the application for lease would have lapsed. The State of Jharkhand was aware that the approaching deadline of two years from 12th January, 2015 would result in the application for mining lease submitted by the writ petitioner as ineligible in view of Section 10(A)(2)(c) of the MMDR Amendment Act, 2015. Therefore, the State of Jharkhand forwarded the application submitted by the petitioner with utmost promptitude to the MoEFCC.
6.3 The petitioner is barred under Order XXIII Rule 1 (3) of Code of Civil Procedure, 1908 (CPC) and the principles applicable thereto. The petitioner had filed the present petition on 9th January, 2017 before this Court thereby challenging the constitutional validity of the period of two years prescribed under Section 10A(2)(c) of MMDR Amendment Act, 2015 and Rule 8(4) of Mineral Concession Rules, 2016 thereby claiming that due to the inaction of the Central Government and the State Government has resulted in the non-fulfilment of the conditions prescribed under the law. Simultaneously, on 10th January, 2017, the petitioner filed another writ petition being W.P.(C) 151/2017 before the High Court of Jharkhand at Ranchi. The filing of the present writ petition which was in the context of execution of the same mining lease in the State of Jharkhand was not disclosed before the High Court of Jharkhand at Ranchi, thereby committing material suppression of relevant facts by the petitioner herein. Likewise, filing of writ petition before the Jharkhand High Court was not disclosed before this Court when the present petition was listed on the very same day, i.e., 10th January, 2017 when a petition was also filed before the Jharkhand High Court.
6.4 The petitioner withdrew W.P.(C)151/2017 before the High Court of Jharkhand on 05th February, 2019, as the same had become infructuous as per the submissions of the learned counsel. Neither any liberty was sought by the petitioner nor the Jharkhand High Court permitted the petitioner to avail appropriate remedy while withdrawing the writ petition before the High Court of Jharkhand. The petitioner also failed to disclose before the High Court of Jharkhand while withdrawing W.P.(C) 151/2017 that the present writ petition with regard to constitutional validity of Section 10A(2)(c) of the MMDR Act and Rule 8(4) of Mineral Concession Rules, 2016 had been filed before this Court with regard to the same mining lease. Therefore, on 05th January, 2019, the prayer for execution of mining lease has become final in view of the unconditional withdrawal of W.P.(C) 151/2017 from the Jharkhand High Court as per Order XXIII Rule 1 CPC.
6.5 The petitioner is not entitled to any discretionary relief under Article 226 of the Constitution of India, since it has approached the Court with unclean hands and filed the writ petition with material suppression of facts deliberately. The petitioner has approached this Court with unclean hands without disclosing to this Court about the filing and withdrawal of W.P.(C) 151/2017 before the High Court of Jharkhand. This conduct would dis-entitle the petitioner to any relief in the discretionary jurisdiction, inasmuch as, the conduct of the writ petitioner is not bona fide and genuine in suppressing material facts.
6.6 On behalf of State of Jharkhand, the following judgments have been relied upon:
(a) State of Orissa & Anr. Vs. Laxmi Narayan Das (Dead) Tr LRs
& Ors, 2023 SCC OnLine SC 825.
(b) Narinder Singh Vs. Divesh Bhutani, 2022 SCC OnLine SC 899.
(c) Pragnesh Shah Vs. Dr. Arun Kumar Sharma & Ors., (2022)
11 SCC 493.
(d) Himachal Pradesh Bus-Stand Management & Development
Authority Vs. Central Empowered Committee & Ors., (2021) 4 SCC 309.

(e) M.J. Exporters Pvt. Ltd. Vs. Union of India & Ors., (2021) 13
SCC 543.
(f) Bharat Amratlal Kothari & Anr. Vs. Dosukhan Samadkhan
Sindhi & Ors., (2010) 1 SCC 234.
REJOINDER ON BEHALF OF PETITIONER

7. In rejoinder, on behalf of the petitioner, the following submissions have been made:
7.1 Union of India is conflating different issues and using its failure to grant one approval i.e. the FC approval to justify inability for grant of the other i.e. the mining lease.
7.2 There is no explanation for the delay in grant of clearances from 2009 to 2014. It is an admitted position that M/s Jindal Steel & Power Limited and Tata Steel Limited were granted the EC and the FC for Saranda Forest in that period.
7.3 The cut off date under Section 10A(2)(c) of MMDR Act is not applicable to the petitioner. The Union of India has conceded that the cut off date of 11th January, 2017 is no longer a bar. Order dated 9th April, 2019 in W.P.(C) 1376/2017 directed the Union of India to consider petitioners Section 2(iii) application on maintainability and on merits. The Union of India considered both issues and held that the FC application and the LOI is valid i.e. the cut off date of 11th January, 2017 does not render the application of the petitioner as not maintainable and hence, the UOI proceeded to grant the Section 2(iii) approval on merits.
7.4 Mining was not prohibited in the area in question as on 10th January, 2017. Neither the Shah Commission nor the ATR pursuant to the Shah Commission Report prohibited grant of approval under Section 2(iii) of the FC Act, 1980. As per the ATR, no new proposals for diversion of forest land i.e. approval under Section 2(ii) of the FC Act, 1980 were to be considered. The issue in the present writ petition relates to delay in grant of approval under Section 2(iii) of the FC Act, 1980. The ATR could not have referred to Section 2(iii) of FC Act, 1980 since the window for obtaining approval under Section 2(iii) of FC Act, 1980 was opened in October, 2016.
7.5 The circulars of Union of India dated 20th October, 2016, 16th November, 2016 and 5th January, 2017 provided a specific window for applicants whose Section 2(ii) approvals were pending, to obtain approval under Section 2(iii) of FC Act, 1980 for grant and execution of mining lease. Having notified such specific window, the UOI cannot plead a contradictory case that Section 2(iii) approval could not be granted as on 11th January, 2017 due to prohibition on mining in Saranda.
7.6 MoEFCC is seeking to supplement its decision dated 11th January, 2017 by now adding the reasoning that mining was prohibited. This is impermissible.
7.7 The Removal of Difficulties Order dated 4th January, 2017 enures to the benefit of the petitioner. The purpose of Removal of Difficulties Order was to ensure that mining lease is granted to the entities that have otherwise fulfilled all the conditions under the LOI.
7.8 The relief under interim order dated 10th January, 2017 cannot be restricted to challenge to vires of Section 10A(2)(c) of MMDR Amendment Act, 2015. The said interim order was passed in the context of prayer (c) of the writ petition to ensure that the cut off date does not bar grant of relief.
7.9 The plea of auction would not be applicable to the petitioner. The UOI itself has introduced measures to expedite grant of lease by granting approvals under Section 2(iii) of FC Act, 1980. The petitioner cannot be deprived of the benefit due to failure of the UOI to process approvals under Section 2(iii) of the FC Act, 1980 in a timely manner.
7.10 Even though the Draft Mining Plan was ready on 2nd September, 2016, the same was approved after a delay of two years i.e. on 8th June, 2018. Had the Plan for Sustainable Mining been approved within the stipulated time, the petitioner would have been entitled to grant of mining lease within the cut off date of 11th January, 2017.
7.11 The petitioners mining compartments i.e. KP-33, KP-34 and KP-35 fell neither in the Conservation Areas nor in the critical biodiversity hotspots as per the Carrying Capacity Report.
7.12 The UOI was bound to consider proposal under Section 2(ii) of the FC Act, 1980 within the prescribed time. As per Rule 6(2) of the FC Rules, State Government was required to process applications within ninety days of receipt and forward the same to the Central Government. On 27th April, 2009, the Central Government issued guidelines for time bound issuance of FC, which required the Central Government to take decision on applications within sixty days from receipt of the proposal from the Central Government.
7.13 Section 10A(2)(c) of MMDR Act mandates grant of mining lease if conditions under LOI are fulfilled.
7.14 Omission of Rule 8 of Mineral Concession Rules, 2016 does not bar petitioners right for consideration of its application. The omission of said Rule 8 further supports petitioners case, as there exists no bar for grant of mining lease to the petitioner.
7.15 The Carrying Capacity Study in both the Draft and Final Management Plans for Sustainable Mining shows that the mining zones remained identical and the petitioners mining compartments, i.e., KP-33, KP-34 and KP-35 did not form part of Biodiversity Conservation Areas and the Critical Hotspots where the mining was prohibited.
7.16 Although the Final Management Plans for Sustainable Mining was approved only on 8th June, 2018, yet MoEFCC granted SAILs existing lease approval under Section 2(ii) FC on 11th August, 2017. Thus, if the mining area could not be identified finally and permission could not be granted till the Management Plan for Sustainable Mining became final, MoEFCC could not have granted approval to SAIL.
7.17 It is vital to note that petitioners case for exclusion of time between 20th September, 2016 and final grant of approval is strengthened by the Office Memorandum dated 16th December, 2020 of the Ministry of Mines informing the MoEFCC that they could proceed to grant Section 2(iii) approval in view of the interim order dated 10th January, 2017 of the Division Bench of this Court.
7.18 The other cases in the batch challenging the vires of Section 10A (2)(c) of the MMDR Act are not similarly placed because they do not have the requisite permissions and are all located in the core inviolate area of Saranda Forest.
7.19 On behalf of the petitioner, additional judgments have been relied upon as follows:
(i) Indore Development Authority Vs. Manoharlal & Ors., (2020) 8 SCC 129.
(ii) Hari R. Nair & Ors. Vs. The Director General, New Delhi & Ors., 2018 SCC OnLine Ker 2537.
(iii) Shivani Vs. Employee State Insurance Corporation, 2019 SCC OnLine Del 9134.
(iv) Gujarat Pottery Works Vs. B.P. Sood., AIR 1967 SC 964.
(v) Kohlapur Canesugar Works Ltd. & Anr. Vs. UoI & Ors., (2000) 2 SCC 536.
(vi) Shree Bhagwati Steel Rolling Mills Vs. Commissioner of Central Excise & Anr., (2016) 3 SCC 643.
ANALYSIS AND FINDINGS OF COURT

8. We have heard learned counsel for the parties and have perused the record.
9. Facts that emerge are that earlier, the Central Government followed a policy wherein applications for grant of mining lease were invited and the same were approved in favour of a party on the basis of first-come-first-serve basis. Pursuant thereto, a lease application was filed by the petitioner for Iron Ore and Manganese Ore over an area of 202.35 hectares in Mauza Meghahatuburu (Karampada) in District West Singhbhum on 29th June, 2007. Apart from the petitioner, several other applications for mining lease of Iron and Manganese Ore were also filed by other applicants either for the same plot or for the same area, overlapping each other. The Deputy Commissioner, Singhbhum, Chaibasa forwarded a composite proposal to the Department of Mines, State of Jharkhand for all the lease applications vide letter dated 31st August, 2007.
10. On 05th June, 2008, the prior approval of the Ministry of Mines, Government of India was granted in favour of the petitioner. Consequently, the Director of Mines, Jharkhand, Ranchi vide its letter dated 09th June, 2008, issued a LOI in favour of the petitioner, pursuant to which, letter dated 10th June, 2008 was issued in favour of the petitioner. The said letters dated 05th June, 2008 and 10th June, 2008 according approval to the petitioner for mining lease of Iron and Manganese Ore are reproduced as under:

Government of India
Ministry of Mines

No. 5/17/2008-M.IV New Delhi, 5th June, 2008

To,

Secretary of the State Govt. of Jharkhand
Mines and Geology Department,
Ranchi, Jharkhand.

Sub: Grant of ML for iron ore and manganese ore over an area of 500 acres in Meghahatuburu (Karampada R.F.) in West Singhbhum district of Jharkhand in favour of M/s Arcelor Mittal India Ltd. (Formerly M/s. Mittal Steel India Ltd.) for a period of 30 years.
Sir,

I am directed to refer to your letter No. Kh.Ni. (Chaiba)-21/07-172/M dated 11.02.2008 and correspondence resting with letter No. KH.Ni. (Chaiba)-2/2007-531/M dated 17.4.2008 on the subject mentioned above and to convey the approval of Central Govt. under section 5(I) of the Mines and Minerals (Development and Regulation) Act, 1957 to the grant of mining lease for iron ore and manganese ore over an area of 500 acres in Meghahatuburu (Karampada R.F.) in West Singhbhum district of Jhakhand in favour of M/s. Arcelor Mittal India Ltd. (Formerly M/s. Mittal Steel India Ltd.) for a period of 30 (thirty) years.

2. Before allowing grant of mining lease the State Govt. may kindly ensure the compliance of the amended provisions of the forest (Conservation) Act, 1980, and Environmental Notification dated 27.01.1994 as issued and amended by MoEF.

3. A copy of the order passed by the State Govt. in matter may kindly be furnished to this Ministry for record.

4. Further it is observed that in response to State Govt. Memo No. 293/M dated 8.2.2008 addressed to M/s SAIL and M/s NMDC, it has been pointed out by M/s. SAIL that thirteen mining leases are pending with State Govt. level for renewal and two applications for prospecting licence and one application for mining lease are also pending with the State Govt. for disposal. It is requested to take an early action for disposal of applications for renewal/grant of mineral concession in favour of M/s. SAIL pending with the State Government. An action taken report in this regard may be furnished to this Ministry.
Yours faithfully
Sd/-
(Anil Subramaniam)
Under Secretary to the Govt. of India

DISTRICT MINING OFFICER

LETTER NO. 1081 DATED 10.06.2008

M/s ArcelorMittal India Limited
Forum II, Hotel Capital Hill
Main Road Ranchi

Sir,

Sub: application for lease of area of 500 acres by m/s. Arcellormitallindian limited mining lease of iron and, manganese ore in West Singhbhum, Meghaburum Karampada RF)

Ref: letter no. 737 dated 9.06.2009 of director, mining, Jharkhand

In reference to the above letter no. 737 dated 9.06.2009 of the Director Mining Jharkhand it is informed that the application of the M/s. Arcelor Mittal India Limited for mining lease of iron and manganese ore for an area of 500 acres in Karamapada RF has been approved under MMDR Act for a period of 30 years subject to terms and conditions by Mining Ministry Central Government vide its letter bearing no. 5/17/2008-M-IV dated 05.06.2008

Accordingly, while enclosing a copy of the map of topography of the area of 500 acres received from Director Mining, it is requested that for grant of mining lease, following terms and documents be fulfilled and deposited:

(1) Approval under section 2 of the Forest conservation Act for forest clearance and environmental clearance.

(2) Mining Plan duly approved by Indian Bureau of Mines under the guidelines notified by Ministry of Forest and Enviromnent guidelines letter no. 5-5/86-FC(pt) dated 260.2.1999 and forest conservation rules form A Schedule I

(3) Environment Cleaniness certificate from Central Government

(4) Map of the area on a tracing cloth (4 copies) as per State Government.

(5) As per approved map, Forest Officer certified copy of land list.
(6)______________
(7)______________

District Mining Officer, Chaibasa.

11. Perusal of the aforesaid shows that the approval granted to the petitioner was conditional and no mining lease could be executed in favour of the petitioner in the absence of the requisite pre-conditions prescribed. The condition stipulated under Clause (3) of the LOI dated 10th June, 2008 clearly provided that EC Certificate from Central Government is one of the essential documents to be filed and deposited by the petitioner. However, no EC Certificate has been issued by the Central Government to the petitioner. On 19th October, 2011, the Environmental Advisory Committee merely recommended the grant of EC to the petitioner. Admittedly, the said recommendation was never accepted by the Central Government.
12. It is to be noted that till date, the petitioner does not have approval of the Central Government under Section 2(ii) of the FC Act, 1980. The petitioner also does not have EC under the EP Act, 1986.
Ramifications of the Shah Commission Report
13. This Court notes that the Shah Commission in its Report dated 14th October, 2013 clearly and categorically recommended that no fresh leases should be granted in the Saranda region. It was recommended that the areas that fell within the proposed mining areas, including the proposed mining area of the petitioner, be declared as inviolate areas and be included in proposed Conservation Reserve under Wildlife Protection Act, 1972. The relevant portions of the Shah Commission Report dated 14th October, 2013 are as follows:
On going through the report it is observed that no proper analysis have been made for intensive mining, present requirements of ore in the State and in the Country as a whole, projected requirement of ore and steel vis-a-vis projected GDP for 20 years or so. The impact of total mining leases in the continuous entire iron ore belt of States of Orissa, Jharkhand and Chhattisgarh are the other shortcoming of the report. Hence, without attending the above observations, the report on impact of mining on the Ecosystem, Wildlife, Socio-Economics of the area is incomplete. The Committee has also not gone through the mining plans, their implementation and impact of frequent modifications of the mining plans under MCDR 1988 for commercial gains.

Though the Committee has gone extensively on the ecology and wildlife point of view of the area but at the same time suffers with the applications of other factors as stated above which are mainly responsible for degradation of Saranda Forest beyond repair.

The State Government of Jharkhand has submitted a list of 42 approved mining leases in the West Singhbhum District. The leases are granted mainly for the hematite extraction of iron ore. The total area leased in these mines comes about 11,524.809 ha. The location of these mines are shown on satellite images and enclosed as Annexure:1. On perusal of the total leases and in this zone of Orissa State (Keonjhar and Sundargarh District) and Jharkhand (West Singhbhum) the total area affected due to leases is about 59,422.02 ha. (Annexure:3). The entire zone is one of the finest elephant habitat in the country. There are many other wildlife recorded in this area.

The State Government has also submitted the list of 19 proposed mining leases in the same District. The total area for these proposed mines would be about 9186.54 ha. The list is enclosed. The location of these proposed leases had been depicted on the satellite images and shown in Annexure:2.

With the available information, the Commission has analyzed the mines proposed to be granted in favour of some lessees, who are already in the field of iron ore mining, either in the State of Jharkhand or other States in the country. Some of them are discussed as under:-

(E) Other than the leases as stated above (out of the proposed 19 leases), the Commission strongly feel that grant of leases should be on need basis instead on greed base. All the area of an extent of 9184.54 ha. should be declared as inviolate areas and included in proposed Conservation reserve under Wildlife Protection Act, 1972.

(F) It is stated here that about 85,770.00 ha. is the total forest area (81,780.00 ha. RF, 3,990.00 ha. PF) of the Saranda Division. Out of that, 20,711.03 ha. is the leased and proposed leased area. It makes about 24% of the total forest area which is very high. The locations of these leases are equally important. If all the leases are allowed then the Saranda forest would be fragmented into pieces of lands. The encroachments due to agriculture and other activities are in addition to the area of 20,711.03 ha.

(G) Out of 8897.84 ha. of leased area for 24 leases (leases which are under deemed refusal category); 7652.08 ha. area is forest land. So, it is recommended that instead of granting fresh leases in the Saranda forest, these all leases should be terminated by following due process of law and then granted by public auction or otherwise whichever is applicable within law, after notifying under Rule 59 of the MCR, 1960 so that there may not be further depletion of the Saranda Reserve Forest which is also a part of notified Elephant Reserve and proposed Conservation Reserve by the Expert Committee (notified on 27.080.2011).

14. In view of the Shah Commission Report dated 14th October, 2013, no mining leases could be executed in the said region. The petitioner has admitted the aforesaid position in the writ petition as follows:
29. Meanwhile, Justice M.B. Shah Commission of Enquiry First Report on illegal mining of iron and manganese ore in the state of Jharkhand was placed before the Parliament. Thereafter, based on the Commission Report, the Respondent No.2 submitted action taken Report to the Parliament which was accepted.

30. That on 01.08.2014 in compliance with the Action Taken Report by Respondent No.2, the Respondent No.2 directed the Respondent No.4 not to forward any new Diversion Proposals for grant of Forest Clearance and stated that the pending proposals with Respondent No.2 would be kept in abeyance till the completion of a Scientific Study on Saranda Forest Division. Subsequently, Respondent No.2 has reconfirmed the non-acceptance of new Proposals and Process of pending Environmental/Forest Clearance Proposals till the finalisation of Saranda Carrying Capacity Study vide Letter dated 13.07.2015. Copies of the Letters dated 01.08.2014 and Letter dated 13.07.2015 along with their true typed copies are annexed hereto and marked as Annexure P-10 (Colly).

15. Perusal of the documents on record manifests that Shah Commission was set up by the Government of India vide notification dated 22nd November, 2010 with the following terms of reference:
2. The terms of reference of the Commission shall be-

(i) to inquire into and determine the nature and extent of mining and trade and transportation, done illegally or without lawful authority of iron ore and manganese ore, and the losses therefrom; and to identify, as far as possible, the persons, firms, companies and others that are engaged in such mining, trade and transportation of iron o