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2014 DIGILAW 602 (ORI)

Prabodh Mohanty v. State of Odisha

2014-09-17

B.N.MAHAPATRA, I.MAHANTY

body2014
JUDGMENT INDRAJIT MAHANTY, J. 1. This Writ Petition has been filed seeking to challenge the notice/letter No. 7816/6F dated 24.10.2011 (Annexure-13) as well as notice/letter No. 7718 dated 25.10.2013 (Annexure-22) issued/passed by opposite party No. 3 Divisional Forest Officer, Bonai Division purportedly demanding payment of Net Present Value (for short, NPV) for the purpose of renewal of mining lease of the petitioner. 2. Shorn of unnecessary details, the brief facts suffice to be noted herein are that the petitioner was originally granted with mining lease for Iron, Manganese and Bauxite over an area of 333.063 hectares in Village Kalamang, Jaldihi, Sidimba and Tantigram (hereinafter referred to as KJST) under Bonai Sub-Division of Sundargarh district in favour of Sri S.N. Mohanty, the late father of the petitioner for a period of 20 years, i.e. from 20.01.1987 to 19.01.2007. On expiry of the said lease period, petitioner has applied for renewal of the said mining lease in Form-J on 06.12.2005 for another 20 years from 20.01.2007 to 19.01.2007 for a reduced area of 188.523 hectares surrendering the balance area of 144.540 hectares. Learned counsel for the petitioner draws our attention to the fact that pursuant to application dated 25.10.2006, Ministry of Environment and Forest, Government of India vide their letter dated 28.01.2008 under Annexure-4, granted the environmental clearance in respect of 188.523 hectares. Thereafter, necessary approvals were also obtained from the office of Principal Chief Conservator of Forest (WL) and Chief Wildlife Warden, Orissa under the cover of their letter dated 03.07.2009 (Annexure-5). Thereafter, the Union of India in the Ministry of Environment and Forest had granted in principle approval for diversion of 177.517 hectares of forest land, i.e. stage-II clearance under Section 2 of the Forest (Conservation) Act, 1980 vide their letter dated 31.07.2009 under Annexure 6. Consequently, under cover of letter No. 2877 dated 05.06.2010 (Annexure-7), opposite party No. 3 Divisional Forest Officer, Bonai Division called upon the petitioner to deposit necessary NPV of Rs. 13,72,72,870/- for 177.517 hectares. Renewal of mining lease was applied for 188.523 hectares, whereas the above forest area falls under Eco-value class-I and the canopy density is 0.3 for which NPV is to be changed @ Rs. 7,30,000/- per hectare over the entire forest area, i.e. 188.523 x Rs. 7,30,000 = Rs. 13,76,21,790 and since the petitioner earlier had deposited Rs. 13,72,72,870/- he was further called upon to deposit the differential NPV of Rs. 7,30,000/- per hectare over the entire forest area, i.e. 188.523 x Rs. 7,30,000 = Rs. 13,76,21,790 and since the petitioner earlier had deposited Rs. 13,72,72,870/- he was further called upon to deposit the differential NPV of Rs. 3,48,920/- within thirty days. In compliance of such direction of opposite party No. 3 under Annexure-7, petitioner made deposit of the aforesaid differential amount of NPV vide Bank Draft dated 10.06.2010. All other permissions in respect to clearance from State Pollution Control Board etc. were duly obtained. As it appears that the petitioner had also moved for necessary approval under sub-rule (2) of Rule 23C of Mineral Conservation and Development Rules, 1988 (for short, Rules, 1988) and by letter dated 12.01.2011 (Annexure-12), the Regional Controller of Mines granted necessary approval of Final Mine Closure Plan (for short, FMCP) for the surrendered area of 144.54 hectares. 3. As it appears that the opposite party No. 3, who issued No. 2877 dated 05.06.2010 (Annexure-7) was transferred and after the joining of his successor in office as D.F.O. Bonai Division, impugned letter dated 24.10.2011 (Annexure-13) came to be issued, wherein, the DFO claimed that the total area under Renewal of Mining Lease (for short, RML) is 333.063 hectares and not 188.523 hectares and based on such computation, a further demand of Rs. 10,33,07,410/- has come to be raised. The said demand was communicated under cover of letter dated 25.10.2013 (Annexure-22) issued by the subsequent DFO, Bonai Division, which is the subject matter of challenge in the present Writ Petition. 4. Mr. Sanjit Mohanty, learned Senior Advocate appearing on behalf of the petitioner vehemently submits that the factual premises on the basis of which the impugned demand came to be raised is wholly erroneous and baseless. The petitioner has never applied for the Renewal of Mining Lease (RML) of 333.063 hectares. As would be evident from application in Form-J under Annexure-2 dated 06.012.2005, total area the petitioner sought for renewal of mining lease in question is for 188.523 hectares. Based on such a renewal application, forest and environmental clearance were obtained from Union of India. Consequent upon receipt of the stage-II clearance under Section 2 of the Forest (Conservation) Act, 1980 vide letter dated 31.07.2009 under Annexure-6, petitioner was called upon for payment of the differential NPV in respect of KJST mines under Annexure-7. Consequently, petitioner has also deposited the additional demand of Rs. Consequent upon receipt of the stage-II clearance under Section 2 of the Forest (Conservation) Act, 1980 vide letter dated 31.07.2009 under Annexure-6, petitioner was called upon for payment of the differential NPV in respect of KJST mines under Annexure-7. Consequently, petitioner has also deposited the additional demand of Rs. 3,48,920/- within the time stipulated therein. It is further submitted that the successor-DFO, who had issued the impugned letters under Annexures-13 and 22, is in effect seeking to review the decision taken by his predecessor in office and while the opposite party No. 3 has sought to saddle the petitioner with a huge financial liability, which the petitioner in law is not liable to bear. Therefore, Mr. Mohanty prays for quashing of the demand raised under Annexures-13 and 22. 5. Mr. M.S. Sahoo, learned Additional Standing Counsel, appearing on behalf of the State placing reliance on the counter affidavit filed by opposite party No. 3 Divisional Forest Officer, Bonai Division, and in particular, highlights the fact that in Annexure-13, the DFO has noted that the surrendered forest area of 144.540 hectares included an area of 7.466 hectares of broken forest land. The petitioner had failed to provide any document from the competent authority to show that the proposal for surrender of forest area of 144.540 hectares had been accepted by the appropriate authority and therefore the consequent demand is fully justified. Apart from the above, he also places strong reliance on the report of the Central Empowered Committee (for short, CEC) dated 26.04.2010, and in particular paragraph 15 [sub-clause (b), (c), (d) and (e)] thereof. He further submits that the said report of the CEC having been accepted by the Hon’ble Supreme Court, the demand raised thereto is fully justified. 6. Mr. Mohanty, learned Senior Advocate for the petitioner invites our attention to the judgment of the Hon’ble Supreme Court in the case of T.N. Godavarman Thirumulpad vs. Union of India and others, (2008) 7 SCC 126 , in particular paragraph 9 thereof which is of relevant consideration for the case at hand is reproduced hereunder:- “9. 6. Mr. Mohanty, learned Senior Advocate for the petitioner invites our attention to the judgment of the Hon’ble Supreme Court in the case of T.N. Godavarman Thirumulpad vs. Union of India and others, (2008) 7 SCC 126 , in particular paragraph 9 thereof which is of relevant consideration for the case at hand is reproduced hereunder:- “9. Based on this, NPV was fixed and the following recommendations have been made: (i) For non-forestry use/diversion of forest land, NPV may be directed to be deposited in the Compensatory Afforestation Fund as per the rates given below:– Eco-value class Very dense forest Dense forest Open forest Class I 10,43,000 9,39,000 7,30,000 Class II 10,43,000 9,39,000 7,30,000 Class III 8,87,000 8,03,000 6,26,000 Class IV 6,26,000 5,63,000 4,38,000 Class V 9,39,000 8,45,000 6,57,000 Class VI 9,91,000 8,97,000 6,99,000 In Rs. per hectare (ii) The use of forest land falling in national parks/wildlife sanctuaries will be permissible only in totally unavoidable circumstances for public interest projects and after obtaining permission from the Hon’ble Court. Such permissions may be considered on payment of an amount equal to ten times in the case of national parks and five times in the case of sanctuaries respectively of NPV payable for such areas. The use of non-forest land falling within the national parks and wildlife sanctuaries may be permitted on payment of an amount equal to NPV payable for the adjoining forest area. In respect of non-forest land falling within marine national parks/wildlife sanctuaries, the amount may be fixed at five times the NPV payable for the adjoining forest area. (iii) These NPV rates may be made applicable with prospective effect except in specific cases such as Lower Subhanshri Project, mining leases of SECL, field firing ranges, wherein pursuant to the orders passed by this Hon’ble Court, the approvals have been accorded on lump sum payment/no payment towards NPV. (iv) for preparation and supply of district-level maps and GPS equipments to the State/ UT Forest Departments concerned and the regional offices of the MOEF, the Ad-hoc CAMPA may be asked to provide an amount of Rs. 1 crore to the Forest Survey of India out of the interest received by it.” (Underlined for emphasis) 7. (iv) for preparation and supply of district-level maps and GPS equipments to the State/ UT Forest Departments concerned and the regional offices of the MOEF, the Ad-hoc CAMPA may be asked to provide an amount of Rs. 1 crore to the Forest Survey of India out of the interest received by it.” (Underlined for emphasis) 7. So far the contentions raised by the State are concerned, we are surprised to note the contents of paragraph 5 of Annexure-13, wherein, the opposite party No. 3-DFO has noted to the effect that the petitioner had not provided any authenticated document regarding acceptance of surrender of 141.51 hectares of forest area. It appears that the DFO concerned was unaware of the grant of approval of the Final Mine Closure Plan (for short, FMCP) issued by the MOEF, under cover of letter dated 12.01.2011 under Annexure-12, wherein, approval was accorded in respect of 144.54 hectares of KJST for surrender/closure of the mining in exercise of sub-rule (2) of Rule 23C of Rules, 1988. Regional Controller of Mines, Indian Bureau of Mines, Bhubaneswar, the competent Authority under the said Rules, having issued Annexure-12 dated 12.01.2011 we are of the considered view that since the said document was very much available with the DFO concerned; therefore, the finding at paragraph 5 of Annexure-13 by the concerned DFO is wholly incorrect and baseless. This erroneous finding of non-availability of authenticated document issued by competent authority, accepting surrender of 141.517 hectares of forest area proposed for closure of mining by the petitioner arrived at by the concerned DFO is further fortified from the CEC report dated 26.04.2010 (Annexure-E/2) to the Counter affidavit, wherein, the concerned DFO who was a member of the said Inspection Team, who had jointly inspected the site before granting the FMCP in respect of the forest land proposed by the petitioner for closure of the mining. Therefore, in our considered view, the DFO concerned was fully aware of such statutory approval accorded under the Rules, 1988, and yet ignored the same. Apart from the above, in paragraph-1 of Annexure-13, the DFO concerned has noted 333.063 hectares to be the total area under RML. Therefore, in our considered view, the DFO concerned was fully aware of such statutory approval accorded under the Rules, 1988, and yet ignored the same. Apart from the above, in paragraph-1 of Annexure-13, the DFO concerned has noted 333.063 hectares to be the total area under RML. It is clear from the pleadings of this case as well as the application made for renewal that the petitioner had never made any application for Renewal of Mining Lease (RML) in respect of 333.063 hectares forest area as claimed by the DFO concerned in the impugned notice/letter under Annexure-13. In fact, the petitioner had made application for Renewal of Mining Lease (RML) in respect of 188.523 hectares only. So, on this factual score also, the impugned demand raised by the concerned DFO can no more survive. 8. Insofar as contention raised by the State and reliance being placed on the report of CEC under Annexure-E/2 to the Counter Affidavit, in particular relevant portion of paragraph 15 thereof, as mentioned hereinabove, is reproduced hereunder for ready reference. “(b) Even otherwise the Rule 24A(6), MCR, 1960 does not authorize the lessee to operate a mine without the statutory clearances/approvals. Therefore, in respect of a mine covered under the deemed extension clause, the mining operation should be permitted to be undertaken in the non-forest area of the mining lease only if (i) it has the requisite environmental clearance. (ii) It has the consent to operate from the State Pollution Control Board under the Air & Water Acts. (iii) Mining Plan is duly approved by the competent authority. (iv) The NPV for the entire forest falling within the mining lease is deposited in the Compensatory Afforestation Fund: The mining in the forest land included in the mining lease should be permissible only if, in addition to the above, the approval under the FC Act/TWP has been obtained. (c) No forest land can be leased/assigned without first obtaining the approval under the FC Act. Therefore, the forest area approved under the FC Act should not be lesser than the total forest area included in the mining leases approved under the MMDR Act, 1957. Both necessarily have to be the same. (c) No forest land can be leased/assigned without first obtaining the approval under the FC Act. Therefore, the forest area approved under the FC Act should not be lesser than the total forest area included in the mining leases approved under the MMDR Act, 1957. Both necessarily have to be the same. In view of the above, this Hon’ble Court while permitting grant of Temporary Working Permission to the mines in Orissa and Goa has made it one of the pre-conditions that the NPV will be paid for the entire forest area included in the mining leases. Similarly, all the mining lease holders in Orissa should be directed to pay the NPV for the entire forest area, included in the mining leases. (d) In Orissa, substantial area included in the mining leases as non forest land have subsequently been identified as DLC forest (deemed forest /forest like areas) by the Expert Committee constituted by the State Government pursuant to this Hon’ble Court’s order dated 12.12.1996. While processing and/or approving the proposals under the FC Act in many cases such areas have been treated as non-forest land. It is recommended that (i) the NPV for the entire DLC area included in the mining lease, after deducting the NPV already paid, should be deposited by the concerned lease holder and (ii) the mining operations in the unbroken DLC land (virgin land) should be permissible only if the permission under the FC Act has been obtained/is obtained for such area. Keeping in view the peculiar circumstances as was existing in Orissa and subject to the above, the mining operations in the broken DLC land may be allowed to be continued provided the other statutory requirements and Rules are otherwise being complied with. (e) The demand for the payment of the NPV as per sub-para (b), (c) and (d) above should be raised by the concerned Divisional Forest Officer within a maximum period of 30 days and the mining lease holder should deposit the amount payable towards the NPV (for the balance forest area) within a period of 30 days thereafter failing which the mine should not be allowed to continue its operations. Appropriate detailed working instructions in this regard should be issued immediately by the State Government.” 9. Appropriate detailed working instructions in this regard should be issued immediately by the State Government.” 9. We find that the in the above factual backdrop and at this juncture, the petitioner having paid the required NPV in respect of 188.523 hectares of forest area for which application for renewal of the mining lease was sought for and the approval thereof had already been obtained vis-à-vis having procured the necessary environmental and forest clearance including clearance from State Pollution Control Board etc. reliance placed on CEC report is in no manner justified to substantiate the impugned demand. We are further of the considered view that the attempt made by the DFO concerned to give retrospective effect for levy of NPV is impermissible in law, since the petitioner in the present case had in fact applied for part renewal of the original mining lease limiting it to only 188.523 hectares and is liable for payment of NPV in respect of the said area only. Any attempt to raise demand or seek payment of NPV in respect of the area surrendered shall be treated as violation of mandate of the Hon’ble Supreme Court in respect of NPV which has to be prospective except certain conditions stipulated in the case of T.N. Godavarman Thirumulpad (supra). 10. We are further of the considered view that in Annexure-7, the DFO had determined the NPV payable and the subsequent DFO, in our considered view, had no authority to review the decision taken by his colleague to whom he succeeded. Even in Annexure-13, there is reference to the earlier DFO’s letter dated 05.06.2010 and the same letter has been appended as Annexure-7 to the writ petition. Mere reference to the earlier communication of a competent authority cannot clothe any authority on his successor to review the decision of his predecessor in office. We are of the considered view that the opposite party No. 3 DFO does not possess any power of review of the order which had been passed by his predecessor. Mere reference to the earlier communication of a competent authority cannot clothe any authority on his successor to review the decision of his predecessor in office. We are of the considered view that the opposite party No. 3 DFO does not possess any power of review of the order which had been passed by his predecessor. Apart from that, it would be relevant to note here that under Annexure-15, the necessary FMCP certificate has been issued by the Regional Controller of Mines of Indian Bureau of Mines on 11.01.2012, wherein, the certificate has been granted to the effect that the protective, reclamation and rehabilitation work have been carried out in accordance with the Final Mine Closure Plan approved vide letter dated 12.01.2011 under Annexure-12 for carrying out mining work over and above the area of 144.540 hectares which was offered for surrender. 11. We are of the further considered view that the opposite party No. 3 DFO appears to have acted under certain confusion of the scope of his authority over the matter, in spite of his inspection being carried out for implementation of the FMCP in KJST Mining lease (part area), where the DFO himself was a member and the document to that effect is also appended as Annexure-E/2 to the counter affidavit filed by himself. In the observation made therein, it appears that essentially from the three blocks identified within the surrendered area, i.e. 144.540 hectares, two blocks are virgin and not distributed by mining and allied activities. The third block located in North-East corner of the mining lease area, was having two Bauxite quarries named as Q-2 and Q-3 for which reclamation and rehabilitation were approved in FMCP on visit of the inspection team consisting Joint Director, Directorate of Mines, Government of Odisha, Divisional Forest Officer, Bonai Division, Sundargarh, Senior Assistant Controller of Mines, Indian Bureau of Mines, Government of India as well as Assistant Mining Geologist, IBM, Government of India. It appears there from that, insofar as Q-2 and Q-3 are concerned, they found that growth of trees planted therein is good but the density is very less. Survival rate of plantation observed to be around 80% and 70% respectively. It appears there from that, insofar as Q-2 and Q-3 are concerned, they found that growth of trees planted therein is good but the density is very less. Survival rate of plantation observed to be around 80% and 70% respectively. Insofar as Q-3 is concerned, the user agency, i.e. the petitioner has been advised to spread fertile foreign soil in the area and to fill up the pits to be dug for plantation by foreign soil followed by watering during the dry period to boost the growth of the plants. 12. Learned counsel for the petitioner submits that the petitioner is duty bound to carry out the directives of such Inspection Team, and in particular, acted in compliance of mandates of Rules, 1988, but the fact that the petitioner has undertaken to carry out the aforesaid steps pursuant to the inspection report cannot form the basis/justification for raising a demand for payment of additional NPV and that too for the surrendered forest area by the petitioner. We are in agreement with the contentions advanced by the petitioner and find that the petitioner having deposited the NPV in respect of 188.523 hectares for which renewal has been sought for and approval obtained, no demand of NPV beyond that area could be said to be justified in law. Consequently, we set aside Annexure-13 as well as Annexure-22 and further direct that the amount of additional NPV deposited by the petitioner pursuant to Annexure-7 shall be accepted by the State as adequate payment of NPV in the matter. As a consequence of our above findings, we direct the opposite parties to refund the deposit made by the petitioner pursuant to interim order dated 14.02.2014 passed by this Court forthwith. The Writ Petition is allowed in terms of the findings arrived at hereinabove.