INDIA Law and Practice Contributed by: Vishnu Sudarsan, Kartikeya Gajjala and Mehar Vasant, J Sagar Associates
es an order declaring and communicating the same to the leaseholder. Marketing A mining lessee is entitled to market and sell the ore that has been won pursuant to mining operations to any person of its choosing, sub - ject to making the requisite payments or royal - ties and other amounts due to the government under law. The regime earlier contemplated the concept of “captive mining”, with mining leases being awarded subject to the restriction that all or part of the mined output would be utilised in a specified end-use plant. However, this concept has been done away with following the 2021 amendment to the MMDR Act, with mines no longer being permitted to be reserved for captive purpose in auctions. Transferability As noted in 1.1 Main Features of the Mining Industry and 1.5 Nature of Mineral Rights , the MMDR Act permits the transfer of a min - eral concession subject to prior approval of the state government. No transfer charges are due in respect thereof. The framework allows for deemed approval, inasmuch as the permission is deemed to have been granted if the state gov - ernment does not convey its approval within a period of 90 days. The transferor is required to intimate to the state government the consideration payable by the successor-in-interest for the transfer, including the consideration in respect of the prospecting operations already undertaken and the reports and data generated during the operations. Any transfer is subject to the condition that the trans - feree accepts all conditions and liabilities under any law to which the transferor was subject in respect of such a mineral concession.
There is some ambiguity as to whether the acquisition of a controlling equity stake in a company holding a mineral concession would amount to a transfer of such concession, there - by necessitating approval of the state govern - ment. In this regard, in State of Rajasthan and Ors. v Gotan Lime Stone Khanji Udyog Pvt. Ltd and Anr, reported as (2016) 4 SCC 469, the Supreme Court of India made a pronouncement that may be interpreted as holding that the trans - fer of shares would, in substance, amount to a transfer of a mineral concession, requiring prior approval of the state government. However, it is understood that, per extant practice, approval in such instances is not being sought.
2. Impact of Environmental Protection and Community Relations on Mining Projects 2.1 Environmental Protection and Licensing of Mining Projects Regulatory Framework
The Constitution of India provides a holistic foun - dation for Indian environmental law, comprising: • Article 48-A – a directive principle of state policy requiring the state to endeavour to protect and improve the environment and safeguard forests and wildlife; and • Article 51A(g) – citizens have a fundamental duty to protect and improve the natural envi - ronment, including forests, lakes, rivers and wildlife. In addition, the Supreme Court of India has inter - preted the fundamental right to life guaranteed under Article 21 of the Constitution to include the right to live in a clean environment.
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