Vedanta Ltd., Thr. Its Aut. Sign., Sauvick Mazumdar and Anr., Vs Director of Mines and Geology, Govt. of Goa and 2 Ors.

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WP1005 of 2019dt.25.11.2019

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1

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO.1005 OF 2019

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Vedanta Limited & Anr.…. Petitioners

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V/s

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Director of Mines & Geology & Ors.….Respondents

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Shri S.S. Kantak, Senior Advocate with Shri A. Gosavi, Advocate for
the Petitioners.

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Shri D. Pangam, Advocate General with Shri Deep Shirodkar,
Additional Government Advocate for the Respondents No.1 & 2.
Shri Mahesh Amonkar, Central Government Standing Counsel for
the Respondent No.3.

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Coram:- M. S. SONAK & PRITHVIRAJ K. CHAVAN, JJ.

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Date:- 25th November, 2019

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ORAL ORDER : (Per M.S. Sonak, J.)

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Heard Shri Kantak, learned Senior Counsel along with
Shri A. Gosavi, learned Counsel for the petitioners, Shri D. Pangam,
learned Advocate General along with Shri Deep Shirodkar, learned
Additional Government Advocate for respondents no.1 & 2 and
Shri M. Amonkar, learned Central Government Standing Counsel
for respondent no.3.

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2.The petitioners impugn communication dated

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2 WP1005 of 2019dt.25.11.2019

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19/11/2019 made on behalf of the State Government. The
communication expresses inability to consider the representation of
the petitioner dated 29/10/2019. By this representation, the
petitioner had requested the State Government to amend their
mining lease and extend the period from 1987 to 2037 i.e. for a
period of 50 years in terms of Section 8(A)(3) of the Mines and
Minerals (Development and Regulation) Act, 1957 (MMDR Act).

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3.Shri Kantak, the learned Senior Counsel for the

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petitioners submits that the provisions of Section 8(A)(3) of the
MMDR Act are quite clear and in terms of such provisions, the
State Government was obliged to amend the Lease Deed. He
submits that the decision of the Hon'ble Apex Court in the case of
Goa Foundation V/s. Sesa Sterlite Limited & Ors.1, referred to as

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the Goa Foundation – II judgment, really does not come in the
way of the State Government in considering the request made by the
petitioner in its representation. He submits that in the said
judgment the issue was only whether the State Government was
justified in granting the second renewal. He submits that there was
no discussion on the scope and import of the provisions of Section
8(A)(3) of the MMDR Act though, there may have been some
reference to the provisions of the MMDR Amendment Act of 2015

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1 (2018) 4 SCC 218

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3 WP1005 of 2019dt.25.11.2019

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by which such provision was introduced with effect from
12/01/2015. Shri Kantak, therefore, submits that the State
Government was duty bound to take into consideration the
provisions in Section 8(A)(3) of the MMDR Act and, on such basis,
process and even grant the request made by the petitioners.

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4.Shri Kantak further submits that the issue raised in this
petition is in fact covered by the decision of the Hon'ble Supreme
Court in the case of Common Cause Vs Union of India, 2017(9)
SCC 499 and based upon the same, the reliefs in the representation
should have been granted by the State Government.

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5. Shri D. Pangam, the learned Advocate General for the
State of Goa submits that the impugned communication dated
19/11/2019 itself records that the State Government is prima facie
in agreement with the contention raised on behalf of the petitioners.
Shri Pangam, however, points out that the decision of the Hon'ble
Apex Court in Goa Foundation – II judgment is quite clear
inasmuch as all mining operations in the State of Goa ordered to be
stopped with effect from 16/03/2018 until fresh mining leases or
other renewals and fresh environmental clearances are granted. He
submits that the State Government has already filed a review
petition before the Hon'ble Apex Court seeking review of the

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4 WP1005 of 2019dt.25.11.2019

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decision in Goa Foundation – II judgment. He however submits
that as long as the said judgment is not reviewed or clarified, the
State Government, had no option than to reject the request made by
the Petitioner.

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6.Having heard the submissions of the learned counsel, we
are satisfied that it will not be appropriate for us to entertain the
present petition for brief reasons, that follows :

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7.In the first place, the Petitioner has raised grounds that
the decision of the Hon'ble Supreme Court in the case of Goa
Foundation -II is “per incuriam” and/or “ sub silentio” and therefore,
the State Government or for that matter this Court, should not
consider itself to be bound by the said decision. In the course of
arguments however Shri Kantak did say that the issue of “per
incuriam” is not being pressed at this stage and before this Court,
but the issue of “sub silentio” may be considered.

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8.According to us, such labels are not really relevant. In
effect, the Petitioner wishes us to direct the State Government to
consider its representation without being bound by the clear
directions issued by the Hon'ble Supreme Court in the case of Goa
Foundation – II. That it will not be proper course of action for this

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WP1005 of 2019dt.25.11.2019

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5

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Court to follow. The State Government too, quite correctly, has
refused to adopt such a course of action. In fact, as pointed out by
the learned Advocate General, the State Government has filed a
review petition before the Hon'ble Supreme Court regards the
decision in Goa Foundation – II and has rejected the representation
of the Petitioner, in the circumstances as they presently prevail.
Accordingly, we see no infirmity in the impugned communication as
it stands.

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9.Secondly, we note that the directions of the Hon'ble
Supreme Court in Goa Foundation-II are quite clear in that the
State of Goa has been directed to take all necessary steps to grant the
“fresh mining leases” in accordance with the provisions of MMDR,
1957. The Ministry of Environment and Forests is also directed to
take all necessary steps to grant “fresh environmental clearances” to
those who are successful in obtaining “fresh mining leases”. The
Hon'ble Supreme Court, in the same judgment has also directed the
State of Goa to stop all mining operations with effect from 16th
March, 2018 until “fresh mining leases ( not fresh renewals or other
renewals )” are granted and “fresh environmental clearances are
granted”. Faced with such clear and categorical directions, we agree
with the learned Advocate General that the State of Goa had no
option but to reject the representation made by the Petitioner, for

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6 WP1005 of 2019dt.25.11.2019

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the present. There is accordingly, no case is made out to interfere
with the impugned communication.

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10.Thirdly, we feel that it will not be appropriate for us to
go into the issue of “ sub silentio” or for that matter “per incuriam”.
This is more so because from the perusal of the decision in Goa
Foundation-II, we find that when the same was delivered, the
provisions of Section 8(A)(3) of the MMDR Act or for that matter
the entire 2015 Amendment, by which such provision was
introduced, were already in force. In fact, the Hon'ble Supreme
Court has made specific reference to the 2015 Amendment as also
its earlier decision in the Common Cause (supra ) which Shri
Kantak, today seeks to rely upon. In such circumstances, it will not
be appropriate for us to entertain the present petition particularly
when it is now pointed out that the State Government has already
filed a review petition before the Hon'ble Supreme Court in respect
of Goa Foundation -II judgment.

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11.The Petitioner has not even bothered to make the Goa
Foundation a party to this petition. In the peculiar facts, we feel that
this was necessary.

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WP1005 of 2019dt.25.11.2019

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12. For all the aforesaid reasons, we dismiss this petition.

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There shall be no order as to costs.

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PRITHVIRAJ K. CHAVAN, J.

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 M. S. SONAK, J.

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NH/at*

Vedanta Ltd., Thr. Its Aut. Sign., Sauvick Mazumdar and Anr., v. Director of Mines and Geology, Govt. of Goa and 2 Ors.

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Vedanta Ltd., Thr. Its Aut. Sign., Sauvick Mazumdar and Anr., v. Director of Mines and Geology, Govt. of Goa and 2 Ors.

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