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National Mineral Development Corporation Vs. Government of India and Ors.

País/Territorio
India
Tipo de la corte
Nacional - corte superior
Fecha
Feb 18, 2008
Fuente
UNEP, InforMEA
Nombre del tribunal
High Court of Delhi
Juez
Ravindra Bhat., S.
Idioma
Inglés
Materia
Recursos minerales
Palabra clave
Minería
Resumen
In the present proceeding, under Article 226 of the Constitution of India, The National Mineral Development Corporation, a Government of India owned Public Sector enterprise engaged in mining operations throughout India, challenges the validity of the approval of the Union Government, Ministry of Mines, given under Section 5(1) of Mines and Mineral (Development and Regulation) Act, 1957 for granting a prospecting license for iron ore over an area of 2500 hectares in favour of M/s. Tata Iron and Steel Company Ltd., the third Respondent, for 2 years by invoking provisions of Section 11(5) of the MMDR Act, through letter dated 14th February 2007. The Petitioner had applied for prospecting license for Iron ore in Bailadila Deposit No. 1 in Form B over an area of 1130 hectares (ha) in the area reserved for public sector undertakings. On 10th November 2006, the Government of Chattisgarh, recommended prospecting license over an area of 2500 ha to third Respondent, on the ground that the later proposed to construct a Steel Plant in Chattisgarh. The area so recommended overlapped by 1130 ha in relation to the area applied by the Petitioner. One preliminary procedural issue is whether it can be said that this Court should decline to exercise jurisdiction in respect of the subject matter of this petition because it can be more appropriately be adjudicated at Raipur. The order of the Central Government impugned in this Petition no doubt confirms the recommendation of the State Government, yet, the scope and discretion of the Central Government under provisions of the MMDR Act are equally circumscribed by other provisions of law. Moreover, it does not act invariably as a confirming authority; the Union Government has to independently assess the proposal of the State and issue orders. Thus, its order dated 14.2.2007 was to be seen on its merits. In the overall conspectus of the facts, and attendant circumstances, this Court is of opinion that since the issues involved and urged concern the legality and jurisdiction of statutory authorities under the Forest Act and also since the order dated 14-2-2007 was made by the Central Government, the pendency of proceedings before Chatisgarh cannot be construed as a bar and principles of comity do not inhibit this Court from hearing and deciding the present petition. The question which arises for consideration is whether the impugned order has violated the mandate of Section 2 of the Forest Act, as it was not preceded by prior approval of the Central Government, or whether the stage for securing the approval has not arisen. The perspective of authorities under the MMDR Act are entirely different from the authorities under the Forest Act, whose provisions seem to approximate the "precautionary principle". While under the former enactment, the predominant considerations are efficient exploitation of minerals, the considerations are conservation of the forest, in the case of the Forest Act. If the interpretation suggested by the third respondent were to be accepted, the State government would be free to take all the steps save the last order authorizing the entry into the forest and its destruction, and obtain all manner of approvals under the MMDR Act; after having secured them, including the "prior approval" of the Central Government under Section 5 of the MMDR Act, it has then to seek the approval under Section 2 of the Forest Act. This construction, seemingly pragmatic, undercuts the imperative nature of Section 2. What cannot be forgotten is that Section 2 is cast in non-obstante terms; it overrides all other laws, including though not limited to the MMDR Act and enact the obligation of a prior approval. Therefore, the only way of giving effect to Section 2 would be to hold that whenever the State (and after the State, the Central Government, as a superior authority in the hierarchy of statutory basis as in this case) is asked to divert any forest land for a non-forest purpose, it has to, before taking other steps, seek prior approval under the Forest Act, and Rules. The rules cast an obligation to decide such application within 60 days. This interpretation furthers the objects of the Forest Act; it also compels the State not to take any step towards, including granting or even recommending other statutory clearances or approvals, concerning diversion of forest lands, till the approval under Section 2 is granted. In view of the above reasons, this writ petition has to succeed. The impugned order 14-2-2007 issued by the Central Government and all the proceedings under the MMDR Act leading up to it are hereby quashed as being issued without jurisdiction, and contrary to law.
Texto completo
COU-156169.pdf
Página web
www.nlsenlaw.org