W.P.(C) No. 20918 of 2015. Case: Banwarilal Newatia Vs State of Odisha and Ors.. High Court of Orissa (India)

Case NumberW.P.(C) No. 20918 of 2015
CounselFor Appellant: Sudarshan Nanda, I.A. Acharya and A. Dash, Advocates and For Respondents: B.P. Pradhan, Addl. Government Advocate
JudgesVineet Saran, C.J. and Dr. B.R. Sarangi, J.
IssueConstitution of India - Articles 48A, 51A; Environment Protection Act, 1986 - Section 3; Forest (Conservation) Act, 1980 - Sections 2, 3, 5
Judgement DateJanuary 12, 2017
CourtHigh Court of Orissa (India)


Dr. B.R. Sarangi, J.

  1. The petitioner, who is a lessee of mining lease, has filed this writ application seeking for following reliefs;

    "It the circumstance stated above, it is humbly prayed that this Hon'ble Court may graciously be pleased to issue a rule NISI to the nature of Writ of Mandamus and/or other appropriate writ/Writ(s) calling upon the Opp. Parties to show cause as to why the directions issued by the Opp. Party No. 4 to deposit Rs. 3,31,04,478/- towards NPV in respect of the surrendered area of 45.3486 Ha. demanded vide Order No. 306 dated 09.07.2010 (Annexure-3), Letter No. 781 dated 01.02.2014 (Annexure-10) and Letter dated 1380 dated 22.02.2014 (Annexure-12), shall not be quashed;

    And further be pleased to direct the Opp. Parties to allow the petitioner to commence mining operation over 67.1390 Hectares in village Tikarpada, Ambadahara, Dist: Keonjhar with (sic 'within') a period of one month;

    And if the Opp. Parties fail to show cause or show insufficient or false cause, make the Rule NISI absolute;

    And pass such other and further order (s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.

    And allow the writ petition;"

  2. The factual matrix of the case is that the petitioner was granted mining lease in respect of an area of 112.4876 hectares for Pyrophyllite and Quartzite in village Tikarpada, Ambadahara, Dist-Keonjhar for a period of 20 years w.e.f. 07.11.1998 to 06.11.2018. The entire area was a non-forest land. The Collector, Keonjhar granted surface right in respect of 67.1390 hectares (over plot No. 1050 and Plot No. 1142 under Khata No. 274) out of the granted mining lease area of 112.4876 hectares. After obtaining necessary statutory clearance and approval, the petitioner carried on mining operation over the said 67.1390 hectares, in respect of which surface right had been granted.

  3. Due to lack of market demand, the petitioner discontinued the mining operation w.e.f. 15.12.2004 after informing the statutory authorities regarding temporary discontinuance. He again started mining operation w.e.f. 19.09.2007 after service of notice of reopening to the concerned authorities as required under the provisions of Rule 22(1) read with Rule 25 of the Mineral Conservation and Development Rules, 1998 (hereinafter referred to as "MCD Rules, 1988"). The statutory notification for obtaining environment clearances, namely, Environment Impact Assessment Notification dated 14.09.2006 was issued by the Ministry of Environment and Forest (MOEF), Government of India for which mining operation of the petitioner was kept in abeyance w.e.f. 08.10.2007, as the petitioner sought for environment clearance from the MOEF in respect of 67.1390 hectares, over which surface right had been granted by the competent authority.

  4. The Director of Mines, Odisha approved the scheme of mining plan with projected annual production of 6500 M.T. of Pyrophyllite and 4000 M.T. of Quartzite on 08.07.2009. The petitioner also sought for consent to operate from the State Pollution Control Board, Bhubaneswar, Odisha in respect of the above approval. The petitioner also submitted an application on 02.06.2010 for surrender of an area measuring 45.3486 hectares, which formed part of the original mining lease area of 112.4876 hectares. The said surrendered area was virgin/unbroken and intact area and no mining operation was carried out by the petitioner and more particularly the said 45.3486 hectares was not a part of 67.1390 hectares, in respect of which surface right had been granted.

  5. At this point of time, the Divisional Forest Officer (DFO), Keonjhar, opposite party No. 4 vide Office Order No. 220 dated 16.06.2010 declared the said 45.3486 hectares as District Level Committee (DLC) land and demanded payment of Rs. 2,83,88,224/- towards Net Present Value (NPV) for the said area of 45.3486 hectares, which had already been surrendered by the petitioner. Thereafter, the DFO, Keonjhar vide Office Order No. 306 dated 09.07.2010 modified the Office Order No. 220 dated 16.06.2010 and issued a revised demand notice claiming payment of Rs. 3,31,04,478/- towards NPV for the said area of 45.3486 hectares, which remained virgin/unbroken and no mining operation was carried out by the petitioner. In response to the same, the petitioner immediately on 13.07.2010 and 09.08.2010 intimated the D.F.O., Keonjhar that the petitioner vide his letter dated 02.06.2010 already submitted an application for surrender of the said virgin/unbroken area, where no mining operation was carried out by him, which is under active consideration by the State Government, and as such he is not liable to pay the NPV in respect of the said area.

  6. At this juncture, the Range Officer in the office of the DFO, Keonjhar on 25.10.2010 submitted a report to the DFO, Keonjhar in respect of the surrendered area of 45.3486 hectares stating inter alia that there was no illicit felling of trees and no encroachment. In the meantime, the revised mining scheme in respect of the retained area of 67.1390 hectares out of 112.4876 hectares was approved by the statutory authority vide letter No. 2538 dated 19.08.2011 being valid up to 2015-16. In view of such position, the opposite parties did not take any steps for more than a period of two years, but all on a sudden in 2013, the DFO, Keonjhar vide Letter No. 1956 dated 11.03.2013 intimated the Collector and District Magistrate, Keonjhar stating, inter alia, that surrendered area of 45.3486 hectares had not been broken up/no mining operation had been carried out and that the area was intact. The Collector and District Magistrate, Keonjhar vide letter No. 454 dated 02.04.2013 forwarded the application of the...

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