WP 435 के 2012 के गोवा फाउंडेशन में दिनांक 21.04.2014 का निर्णय
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) No. 435 OF 2012
Goa Foundation ... Petitioner
Versus
Union of India & Ors. ... Respondents
WITH
WRIT PETITION (C) No. 99 OF 2013,
WRIT PETITION (C) No. 184 OF 2013,
TRANSFERRED CASE No.136 OF 2013
(ARISING OUT OF T. P. (C) No. 8 OF 2013),
TRANSFERRED CASE No.133 OF 2013
(ARISING OUT OF T.P.(C) No. 230 OF 2013),
TRANSFERRED CASE No.131 OF 2013
(ARISING OUT OF T.P.(C) No. 1441 OF 2013),
TRANSFERRED CASE No.132 OF 2013
(ARISING OUT OF T.P.(C) No. 1186 OF 2013),
TRANSFERRED CASE No.143 OF 2013
(ARISING OUT OF T.P.(C) No. 574 OF 2013),
TRANSFERRED CASE No.140 OF 2013
(ARISING OUT OF T.P.(C) No. 766 OF 2013),
TRANSFERRED CASE No.142 of 2013
(ARISING OUT OF T.P.(C) No. 770 OF 2013),
TRANSFERRED CASE No.141 OF 2013
(ARISING OUT OF T.P.(C) No. 776 OF 2013),
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TRANSFERRED CASE No.139 OF 2013
(ARISING OUT OF T.P.(C) No. 836 OF 2013),
TRANSFERRED CASE No.134 OF 2013
(ARISING OUT OF T.P.(C) No. 864 OF 2013),
TRANSFERRED CASE No.135 OF 2013
(ARISING OUT OF T.P.(C) No. 866 OF 2013),
AND
TRANSFERRED CASE No.138 OF 2013
(ARISING OUT OF T.P.(C) No. 869 OF 2013),
JUDGEMENT
A. K. PATNAIK, J.
1. This batch of Writ Petitions and Transferred Cases relate to
mining in the State of Goa and as issues raised are common to the
Writ Petitions and the Transferred Cases, the cases have been
analogously heard and are being disposed of by this common
judgment.
Facts relating to mining in Goa:
-
Prior to 19.12.1961 when Goa was a Portuguese territory, its
Portuguese Government had granted mining concessions in
perpetuity to concessionaires. On 19.12.1961, Goa was liberated
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and became part of the Indian Union and on 01.10.1963, the
Mines and Minerals (Development & Regulation) Act, 1957 (for
short `the MMDR Act') was made applicable to the State of Goa.
On 10.03.1975, the Controller of Mining Leases issued a
notification calling upon every lessee and sub-lessee to file returns
under Rule 5 of the Mining Leases (Modification of Terms) Rules,
1956 and sent copies of the notification to the concessionaires in
Goa. Aggrieved, the concessionaires moved the Bombay High
Court, Goa Bench, and by judgment dated 29.09.1983, in
Vassudeva Madeva Salgaocar vs. Union of India [1985(1) Bom.
CR 36], the Bombay High Court restrained the Union of India from
treating the concessions as mining leases and from enforcing the
notification against the concessionaires.
-
Parliament thereafter passed the Goa, Daman and Diu
Mining Concessions (Abolition and Declaration as Mining Leases)
Act, 1987 (for short `the Abolition Act') which received the assent
of the President on 23.05.1987. Section 4 of the Abolition Act
abolished the mining concessions and declared that with effect
from the 20th day of December, 1961, every mining concession will
be deemed to be a mining lease granted under the MMDR Act and
that the provisions of the MMDR Act will apply to such mining
lease. Section 5 of the Abolition Act further provided that the
4
concession holder shall be deemed to have become a holder of
the mining lease under the MMDR Act in relation to the mines in
which the concession relates and the period of such lease was to
extend upto six months from the date when the Abolition Act
received President's assent, i.e. upto 22.11.1987. On 14.10.1987,
sub-rules (8) and (9) were inserted in Rule 24A of the Mineral
Concession Rules, 1960 (for short `the MC Rules') which deal with
renewal of mining leases in Goa, Daman and Diu. The Abolition
Act was challenged by the lessees before the Bombay High Court
in a writ petition. The High Court passed an interim order
permitting the lessees to carry on mining operations and the
mining business in the concessions for which renewal applications
had been filed under Rule 24A of the MC Rules. Subsequently,
the High Court held in its judgment dated 20.06.1997 that the
Abolition Act was valid but Section 22(i)(a) of the Abolition Act
would operate prospectively and not retrospectively. The
concessionaires filed special leave petition against the judgment
dated 20.06.1997 before this Court. On 02.03.1998, this Court
passed an interim order permitting the concessionaires to carry on
mining operations and mining business in the mining areas for
which renewal applications have been made on the condition that
the lessee pays to the Government dead rent from the date of
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commencement of the Abolition Act. Subsequently, this Court
granted leave in the special leave petition and continued the
aforesaid interim order.
The Justice Shah Commission and its report:
-
As reports were received from various State Governments of
widespread mining of iron ore and manganese ore in contravention
of the provisions of the MMDR Act, the Forests (Conservation) Act
1980, the Environment (Protection) Act, 1986 and other rules and
guidelines issued thereunder, the Central Government appointed
the Justice Shah Commission under Section 3 of the Commissions
of Inquiry Act, 1952 by notification dated 22.11.2010. Paras 2 and
3 of the notification, which are relevant, are extracted hereinbelow:
"2. The terms of reference of the Commission shall be-
(i) to inquire into and determine the nature and extent of
mining and trade and transportation, done illegally or
without lawful authority, of iron ore and manganese ore,
and the losses therefrom; and to identify, as far as
possible, the persons, firms, companies and others that
are engaged in such mining, trade and transportation of
iron ore and manganese ore, done illegally or without
lawful authority;
(ii) to inquire into and determine the extent to which the
management, regulatory and monitoring systems have
failed to deter, prevent, detect and punish offences
relating to mining, storage, transportation, trade and
export of such ore, done illegally or without lawful
authority, and the persons responsible for the same;
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(iii) to inquire into the tampering of official records,
including records relating to land and boundaries, to
facilitate illegal mining and identify, as far as possible, the
persons responsible for such tampering; and
(iv) to inquire into the overall impact of such mining, trade
transportation and export done illegally or without lawful
authority, in terms of destruction of forest wealth, damage
to the environment, prejudice to the livelihood and other
rights of tribal people, forest dwellers and other persons in
the mined areas, and the financial losses caused to the
Central and State Governments.
3. The Commission shall also recommend remedial
measures to prevent such mining, trade, transportation and
export done illegally or without lawful authority."
The Justice Shah Commission visited Goa and issued notices
under Section 4 of the Commissions of Inquiry Act, 1952 calling for
information from concerned authorities and the lessees and
submitted its interim report on 15.3.2012 to the Ministry of Mines,
Union of India. On 7.9.2012, the Justice Shah Commission Report
on Goa was tabled in Parliament along with an Action Taken
Report of the Ministry of Mines and on 10.9.2012 the State
Government of Goa passed an order suspending all mining
operations in the State of Goa with effect from 11.9.2012.
-
Pursuant to this order of the State Government, on
11.09.2012 and 12.09.2012 the District Magistrates of the State of
Goa banned transportation of iron ore in their respective districts
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and the Director of Mines and Geology ordered for verification of
mineral ore which was already extracted. On 13.9.2012, the
Director of Mines and Geology, Government of Goa issued Show
Cause Notices to 40 mining leases. On 14.9.2012, the Ministry of
Environment and Forests of the Union of India also directed that all
Environmental Clearances granted to mines in the State of Goa be
kept in abeyance.
- On the basis of findings in the report of the Justice Shah
Commission on illegal mining in the State of Goa, the Goa
Foundation has filed Writ Petition (C) 435 of 2012 as Public
Interest Litigation praying for directions to the Union of India and
the State of Goa to take steps for termination of the mining leases
of lessees involved in mining in violation of the Forest
(Conservation) Act, 1980, the Mines and Minerals (Regulation
and Development) Act, 1957, the Mineral Concessions Rules,
1960, the Environment (Protection) Act, 1986, the Water
(Prevention & Control of Pollution) Act, 1974 and the
Air (Prevention and Control of Pollution) Act, 1981 as well as the
Wild Life (Protection) Act, 1972. The Goa Foundation has prayed
that a direction be issued to the respondents to prosecute all
those who have committed offences under the different laws and
are involved in the pilferage of State revenue through illegal
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mining activities in the State of Goa including the public servants
who have aided and abetted the offences. The Goa Foundation
has also sought for appointment of an independent authority with
full powers to take control, supervise and regulate mining
operations in the State of Goa and to ensure the implementation
of the laws. Besides, the aforesaid main reliefs, the Goa
Foundation has also prayed for some incidental
and
consequential reliefs. On 5.10.2012, this Court issued notice in
Writ Petition (Civil) No. 435 of 2012 to the respondents and
directed the Central Empowered Committee (for short "CEC") to
submit its report on the writ petition and also directed that till
further orders, all mining operations in the leases identified in the
report of the Justice Shah Commission and transportation of iron
ore and manganese ore from those leases, whether lying at the
mine-head or stockyards, shall remain suspended,
as
recommended in the report of the Justice Shah Commission.
- Different mining lessees of the State of Goa and the Goa
Mining Association also filed Writ Petitions in the Bombay High
Court, Goa Bench for a declaration that the report of the Shah
Commission is illegal and for quashing the findings in the report of
the Justice Shah Commission and also for quashing the order
dated 10.9.2012 of the Government of Goa suspending mining
9
operations in the State of Goa and the order dated 14.9.2012 of
the Ministry of Environment and Forests, Government of India,
directing that the Environmental Clearances granted to the mines
in the State of Goa be kept in abeyance. These Writ Petitions
have been transferred to this Court for hearing along with the
hearing of Writ Petition (Civil) No. 435 of 2012 filed by the Goa
Foundation.
-
The Writ Petitions and the Transferred Cases were heard
during September, October and November, 2013. On 11th
November, 2013, an order was passed by this Court
directing that the inventory of the excavated mineral ores
lying in different mines/stockyards/jetties/ports in the State of
Goa made by the Department of Mines and Geology of the
Government of Goa be verified and thereafter the whole of
the inventorised mineral ores be sold by e-auction and the
sale proceeds (less taxes and royalty) be retained in
separate fixed deposits (lease-wise) by the State of Goa till
the Court delivers the judgment in these matters on the
legality of the leases from which the mineral ores were
extracted. The Court has also directed that this entire
process of verification of the inventory, e-auction and deposit
of sale proceeds be monitored by a Monitoring Committee
10
appointed by the Court. By the said order dated 11.11.2013,
this Court also constituted an Expert Committee to conduct a
macro EIA Study on what should be the ceiling of annual
excavation of iron ore from the State of Goa considering its
iron ore resources and its carrying capacity, keeping in mind
the principles of sustainable development and inter-
generational equity and all other relevant factors. On
11.11.2013 the case was also reserved for judgment.
Challenge to the Report of the Justice Shah Commission:
- As we have already noticed, in the cases transferred from
the Bombay High Court to this Court, the mining lessees have
prayed for quashing the report of the Justice Shah Commission.
Mr. K.K. Vengupal, learned senior counsel appearing for the
mining lessees, submitted that the Justice Shah Commission did
not issue any notice under Section 8B of the Commissions of
Inquiry Act, 1952 to the mining lessees giving a reasonable
opportunity of being heard in the inquiry and to produce evidence
in their defence. He further submitted that the Justice Shah
Commission also did not permit the mining lessees to cross
examine the witnesses, to address the Commission and to be
represented by legal practitioners before the Commission contrary
to the provisions of Section 8C of the Commissions of Inquiry Act,
11
- He submitted that even otherwise there is gross breach of
the principles of natural justice and fair play by the Justice Shah
Commission and, therefore, the report of the Commission was
violative of Article 14 of the Constitution. He submitted that the
report of the Justice Shah Commission should, therefore, be
quashed. In support of this submission, he relied on the decisions
of this Court in Kiran Bedi v. Committee of Inquiry and another
[(1989) 1 SCC 494], State of Bihar v. L.K. Advani [(2003) 8 SCC
361] and Union of India v. Tulsiram Patel [1985(3) SCC 398].
- Mr. Mohan Prasaran, learned Solicitor General for the Union
of India, on the other hand, submitted that as the notification dated
22.11.2010 of the Central Government appointing the Justice Shah
Commission under Section 3 of the Commissions of Inquiry Act,
1952 would show, reports were received from various State
Governments of widespread mining of iron ore and manganese
ore in contravention of the MMDR Act, the Forest (Conservation)
Act, 1980 and the Environment (Protection) Act, 1986 or other
Rules and Licenses issued thereunder and for this reason, the
Central Government appointed the Justice Shah Commission for
the purpose of making inquiry into these matters of public
importance. He submitted that after the Justice Shah Commission
submitted the report pointing out various illegalities, the Union
12
Government has kept the environment clearances in abeyance
and it will take legal action on the basis of its own assessment of
the facts and not on the basis of the facts as found in the Justice
Shah Commission's report. Similarly, Mr. Atmaram N.S. Nadkarni,
the Advocate General appearing for the State of Goa, submitted
that after going through the report of the Justice Shah
Commission, the State Government has suspended all mining and
transportation of ores and no legal action will be taken against the
mining lessees on the basis of the findings in the Justice Shah
Commission's report unless due opportunity is given to the mining
lessees to place their defence against the findings of the Justice
Shah Commission.
- We find that Section 8B of the Commissions of Inquiry Act,
1952 provides that if a person is likely to be prejudicially affected
by the inquiry, the Commission shall give to that person a
reasonable opportunity of being heard and to produce evidence in
his defence and Section 8C of the Commissions of Inquiry Act,
1952 provides that every such person will have a right to cross-
examine and the right to be represented by a legal practitioner
before the Commission. As the State Government of Goa has
taken a stand before us that no action will be taken against the
mining lessees only on the basis of the findings in the report of the
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Justice Shah Commission without making its own assessment of
facts and without first giving the mining lessees the opportunity of
hearing and the opportunity to produce evidence in their defence,
we are not inclined to quash the report of the Justice Shah
Commission on the ground that the provisions of Sections 8B and
8C of the Commissions of Inquiry Act, 1952 and the principles of
natural justice have not been complied with. At the same time, we
cannot also direct prosecution of the mining lessees on the basis
of the findings in the report of the Justice Shah Commission, if they
have not been given the opportunity of being heard and to produce
evidence in their defence and not allowed the right to cross-
examine and the right to be represented by a legal practitioner
before the Commission as provided in Sections 8B and 8C
respectively of the Commissions of Inquiry Act, 1952. We will,
however, examine the legal and environmental issues raised in the
report of the Justice Shah Commission and on the basis of our
findings on these issues consider granting the reliefs prayed for in
the writ petition filed by Goa Foundation and the reliefs prayed for
in the writ petitions filed by the mining lessees, which have been
transferred to this Court.
Whether the leases held by the mining lessees have expired:
14
- According to the Justice Shah Commission report, prior to
7th January, 1993, sub-rule (4) of Rule 24A of the MC Rules
provided that the renewal application of the lessee is required to
be disposed of within six months from the date of its receipt and
sub rule (5) of Rule 24A provided that if the application is not
disposed of within stipulated time, the same shall be deemed to
have been refused. The Justice Shah Commission has found that
the applications of several mining leases for renewal were not
disposed of within the stipulated time and there was no provision in
the MC Rules to condone the delay and, therefore, these leases
are in contravention of the MC Rules and are void and have no
effect as provided in Section 19 of the MMDR Act.
- The CEC in its report has stated that under Section 4 of the
Abolition Act, the concessions were abolished from 23rd May, 1987
and treated as deemed leases under the MMDR Act and the
period of deemed leases under Section 5 of the Abolition Act was
extended upto six months with effect from the date of assent to the
Abolition Act (23rd May, 1987) i.e. upto 22nd November, 1987. The
CEC has further stated that by notifications dated 20th November,
1987 and 20th May, 1988, however, the Government of Goa
allowed extension of six months each (totaling one year) for
making applications for the first renewal of deemed mining leases
15
and this one year period expired on 22nd November, 1988. The
CEC has further stated that as per the information provided to the
CEC, out of 595 mining concessions abolished and converted into
deemed mining leases under Section 4 of the Abolition Act, as
many as 379 deemed mining lease holders have filed applications
for the first renewal of the mining leases before 22nd November,
1988 and 59 such leases have filed applications for the first
renewal of the deemed mining leases after 22nd November, 1988,
i.e., beyond the time limit permitted under Rule, 24A(8) of the MC
Rules.
- In reply, learned counsel for the lessees and Mr. Arvind
Datar, learned senior counsel appearing for the State of Goa,
submitted that sub-rules (4) and (5) of Rule 24A of the MC Rules
did not apply to the State of Goa. They submitted that sub-rules
(8) and (9) of Rule 24A of the MC Rules apply specifically to the
State of Goa and sub-rule (8) of Rule 24A of the MC Rules
provides that an application for the first renewal of the deemed
mining lease referred to in Section 4 of the Abolition Act shall be
made to the State Government in Form `J' before the period of six
months of the mining lease as provided in Section 5(1) of the
Abolition Act. They submitted that the proviso to sub-rule (8) of
Rule 24A of the MC Rules conferred power on the State
16
Government to extend time for making such application upto a
total period not extending one year. They submitted that, by two
notifications, the State Government extended time for a period of
one year upto 22.11.1988 and within this period most of the
lessees have applied for the first renewal of the deemed mining
lease. Learned counsel for the lessees and learned counsel for
the State of Goa submitted that sub-rule (9) of Rule 24A of the MC
Rules makes it clear that if an application for first renewal is made
within the time referred to in sub-rule (8) of Rule 24A of the MC
Rules or within the time allowed by the State Government under
the proviso to sub-rule (8) of Rule 24A of the MC Rules, the period
of that lease shall be deemed to have been extended by a further
period till the State Government passes orders thereon.
- For easy reference, Chapter II containing Sections 4 and 5 of
the Abolition Act is extracted hereinbelow:
"CHAPTER II
ABOLITION OF MINING CONCESSIONS AND
DECLARATION AS MINING LEASES
UNDER THE MINES AND MINERALS ACT
17
- (1) Every mining concession specified in the First Schedule shall, on and from the appointed day, be deemed to have been abolished, and shall, with effect from that day, be deemed to be a mining lease granted under the Mines and Minerals Act, and the provisions of that Act shall, save as otherwise provided in this Act, apply to such mining lease.
(2) Every mining concession specified in the Second Schedule shall, on and from the day next after the date of grant of the said concession and specified in the corresponding entry in the eighth column of the said Schedule, be deemed to have been abolished, and shall, with effect from that day, be deemed to be a mining lease granted under the Mines and Minerals Act, and the provisions of that Act shall, save as otherwise provided in this Act, apply to such mining lease.
(3) If, after the date of assent, the Central Government is satisfied,. whether from any information received by it or otherwise, that there has been any error, omission or misdescription in relation to the particulars of any mining concession or the name and residence of any concession holder specified in the First or the Second Schedule, it may, by notification, correct such error, omission or misdescription, and on the issue of such notification, the First or the Second Schedule, as the case may be, shall be deemed to have been amended accordingly.
- (1) Where a mining concession has been deemed to be a mining lease under section 4, the concession holder shall, on and from the day mentioned in that section, be deemed to have become the holder of such mining lease under the Mines and Minerals Act in relation to the mine to which the mining concession
18
relates, subject to the condition that the period
of such lease shall, notwithstanding anything
contained in that Act, extend up to a period of
six months from the date of assent.
(2) On the expiry of the period of any mining
lease under sub-section (1), it may, if so desired
by the holder of such lease and on an
application being made by him in accordance
with the provisions of the Mines and Minerals
Act and the rules made thereunder, be renewed
on such terms and conditions, and up to the
maximum period for which, such lease can be
renewed under the provisions of that Act and
the rules made thereunder."
- For easy reference, Rule 24A of the MC Rules is also
extracted hereinbelow:
"24A. Renewal of mining lease. - (1) An
application for the renewal of a mining lease shall
be made to the State Government in Form J, at
least twelve months before the date on which the
lease is due to expire, through such officer or
authority as the State Government may specify in
this behalf.
(2) The renewal or renewals of a mining lease
granted in respect of a mineral specified in Part `A'
and Part `B' of the First Schedule to the Act may be
granted by the State Government with the previous
approval of the Central Government.;
(3) The renewal or renewals of a mining lease
granted in respect of a mineral not specified in Part
`A' and Part `B' of the First Schedule to the Act may
be granted by the State Government.;
Provided that before granting approval for second or
subsequent renewal of a mining lease, the State
Government shall seek a report from the Controller
General, Indian Bureau of Mines, as to whether it
19
would be in the interest of mineral development to grant the renewal of the mining lease.
Provided further that in case a report is not received from Controller General, Indian Bureau of Mines in a period of three months of receipt of the communication from the State Government, it would be deemed that the Indian Bureau of Mines has no adverse comments to offer regarding the grant of the renewal of mining lease.
(4) An application for the renewal of a mining lease shall be disposed of within a period of six months from the date of its receipt. (Omitted)
(5) If an application is not disposed of within the period specified in sub-rule (4) it shall be deemed to have been refused. (Omitted)
(6) If an application for the renewal of a mining lease made within the time referred to in sub-rule (1) is not disposed of by the State Government before the date of expiry of the lease, the period of the lease shall be deemed to have been extended by a further period till the State Government passes order thereon.
(7) Omitted.
(8) Notwithstanding anything contained in sub-rule (1) and sub-rule (6), an application for the first renewal of a mining lease, so declared under the provisions of section 4 of the Goa, Daman and Diu Mining Concession (Abolition and Declaration as Mining Lease ) Act,1987, shall be made to the State Government in Form J before the expiry of the period of mining lease in terms of sub-section (1) of section 5 of the said Act, through such office or authority as the State Government may specify in this behalf:
Provided that the State Government may, for reasons to be recorded in writing and subject to such conditions as it may think fit, allow extension of
20
time for making of such application up to a total
period not exceeding one year.
(9) If an application for first renewal made within the
time referred to in sub-rule (8) or within the time
allowed by the State Government under the proviso
to sub-rule (8), the period of that lease shall be
deemed to have been extended by a further period
till the State Government passes orders thereon.
(10) The State Government may condone delay in
an application for renewal of mining lease made
after the time limit prescribed in sub-rule (1)
provided the application has been made before the
expiry of the lease."
- Sub-rule (8) of Rule 24A of the MC Rules has been inserted
by G.S.R. 855(E), dated 14th October, 1987 and this sub-rule (8) of
Rule 24A of the MC Rules provides that notwithstanding anything
contained in sub-rule (1) and sub-rule (6), an application for the
first renewal of a deemed mining lease, referred to in Section 4 of
the Abolition Act, shall be made to the State Government in Form J
before the expiry of the six months period of deemed mining lease
as provided in Section 5 (1) of the Abolition Act. The proviso to
sub-rule (8) of Rule 24A of the MC Rules, however, empowers the
State Government to extend the time for making such application
upto a total period not extending one year. In exercise of these
powers in the proviso to sub-rule (8) of Rule 24A of the MC Rules,
the State Government of Goa has, in fact, extended time for
making applications for first renewal upto 22.11.1988, by two
21
notifications dated 20.11.1987 and 20.05.1988. Sub-rule (9) of
Rule 24A of the MC Rules, which was also inserted by G.S.R.
855(E), dated 14th October, 1987, reads as follows:
"In an application for first renewal made within the
time referred to in sub-rule (8) or within the time
allowed by the State Government under the proviso
to sub-rule (8), the period of that lease shall be
deemed to have been extended by a period of one
year from the date of expiry of lease or date of
receipt of application, whichever is later, provided
that the period of deemed extension of lease shall
end with the date of receipt of the orders of the
State Government thereon, if such orders are made
earlier."
Sub-rule (9) was substituted by G.S.R. 724(E) dated 27th
September, 1994 by the existing sub-rule (9) (extracted above) to
provide that if an application for first renewal is made within the
time referred to in sub-rule (8) or within the time allowed by the
State Government under the proviso to sub-rule (8), the period of
that lease shall be deemed to have been extended by a further
period till the State Government passes orders thereon. In our
considered opinion, the intention of rule-making authorities is very
clear from sub-rule (9) as was originally inserted by G.S.R. 855(E),
dated 14th October, 1987 and sub-rule (9) as was substituted by
G.S.R. 724(E), dated 27th September, 1994, that until orders were
passed by the State Government on an application for first renewal
of a lease filed by a lessee within the time allowed, the lease was
22
deemed to have been extended.
- The lessees have contended that they had filed their
applications by 22.11.1988, i.e. the date up to which the State
Government had allowed time under the proviso to sub-rule (8) of
Rule 24A of the MC Rules. The State Government has also taken
the stand that most of the applications for first renewal were filed
within the time allowed by the State Government and this stand is
also supported by the facts found by the CEC. The result is that
most of the mining leases in which the State Government has not
passed orders are deemed to have been extended under sub-rule
(9) of Rule 24A of the MC Rules. Hence, the finding in the Justice
Shah Commission report that the applications for renewal were not
disposed of within the stipulated time and the leases are in
contravention of the MC Rules is, thus, not correct. This opinion of
the Justice Shah Commission, as we have noticed, was based on
sub-rules (4) and (5) of Rule 24A of the MC Rules, which were
applicable generally to an application for renewal of mining leases,
stood excluded to the extent specific provisions have been
subsequently made by the rule-making authorities in sub-rules (8)
and (9) of Rule 24A of the MC Rules in respect of the deemed
leases in Goa.
- Mr. Prashant Bhushan, learned counsel for the Goa
23
Foundation, however, submitted that sub-section (2) of Section 8
of the MMDR Act prior to its amendment provided that a mining
lease may be renewed for only ten years and, therefore, if the
deemed mining leases of the lessees expired on 22.11.1987, even
if the lease was renewed on the application of first renewal made
by the lessees in Goa, the period of lease under the first renewal
would expire on 21.11.1997 and after 21.11.1997, there can be no
deemed extension. Alternatively, he submitted that sub-section (2)
of Section 8 of the MMDR Act as amended by Act 25 of 1994
provided that the mining lease may be renewed for a maximum
period not exceeding twenty years. He submitted that as the
deemed mining leases expired on 22.11.1987, the lessees would
be entitled to a renewal for a maximum period of twenty years upto
21.11.2007 and after 21.11.2007, the lessees would not be entitled
to any renewal and hence the lessees were not entitled to operate
the lease beyond 21.11.2007.
- Learned counsel for the lessees, on the other hand,
submitted that sub-section (3) of Section 8 of the MMDR Act
makes it clear that notwithstanding anything contained in sub-
section (2) of Section 8 of the MMDR Act, the State Government
can authorise renewal of a mining lease in respect of minerals not
specified in Part A and Part B of the First Schedule for a further
24
period or periods not exceeding twenty years in each case. They
submitted that iron ore is specified in Part C in the First Schedule
and hence the State Government can authorise renewal of the
mining lease in respect of iron ore for a period or periods not
exceeding twenty years in each case. They also referred to sub-
rule (3) of Rule 24A which provided that renewal or renewals of a
mining lease granted in respect of a mineral not specified in Part A
and Part B of the First Schedule to the MMDR Act may be granted
by the State Government provided that before granting approval
for second or subsequent renewal of a mining lease, the State
Government shall seek a report from the Controller General, Indian
Bureau of Mines, as to whether it would be in the interest of
mineral development to grant the renewal of the mining lease.
Learned counsel for the lessees submitted that as the application
of the lessees for renewal of mining leases have not been
disposed of by the State Government before the date of expiry of
lease, the period of lease shall be deemed to have been extended
by a further period till the State Government passes orders thereon
as provided in sub-rule (6) of Rule 24A of the MC Rules. They
submitted that it will be clear from sub-rule (6) of Rule 24A of the
MC Rules that the intention of rule-making authorities is that there
may not be any hiatus in mining, and mineral development in the
25
country may continue without break, without any loss to the
economy and loss of revenue to the Government. They cited the
judgment of this Court in State of U.P. & Ors. v. Lalji Tandon
(dead) through LRs. [(2004) 1 SCC 1], in which this Court has held
that there is a difference between an extension of lease and
renewal of lease and whereas in the case of extension of lease it is
not necessary to have a fresh deed of lease executed, in case of
renewal of lease, a fresh deed of lease shall have to be executed
between the parties. They also cited Tata Iron and Steel
Company Ltd. v. Union of India & Anr. [(1996) 9 SCC 709] in
support of their argument that under sub-section (3) of Section 8 of
the MMDR Act, the Government can renew the mining lease for a
further period if it was in the interest of mineral development.
- Mr. Nadkarni, learned Advocate General for the State of
Goa, submitted that the then State Government of Goa allowed the
working of the mines from 2007 till 2012 based on deemed
extension status but it has been decided by the State Government
now in the Goa Mining Policy of 2013 that no mine can be allowed
on deemed extension basis. The clear stand of the State
Government of Goa in the resume of arguments filed by the
learned Advocate General Mr. Nadkarni is that the deemed
extension status would not mean that a mine can be allowed to run
26
indefinitely without a decision on the renewal application.
-
Section 8 of the MMDR Act is extracted hereinbelow:
"8. Periods for which mining leases may be granted or renewed
(1) The maximum period for which a mining lease may be granted shall not exceed thirty years:
Provided that the minimum period for which any such mining lease may be granted shall not be less than twenty years;
(2) A mining lease may be renewed for a period not exceeding twenty years]:
(3) Notwithstanding anything contained in sub- section (2), if the State Government is of opinion that in the interests of mineral development it is necessary so to do, it may, for reasons to be recorded, authorise the renewal of a mining lease in respect of minerals not specified in Part A and Part B of the First Schedule for a further period or periods not exceeding twenty years in each case.
(4) Notwithstanding anything contained in sub- section(2) and sub-section (3), no mining lease granted in respect of mineral specified in Part A or Part B of the First Schedule shall be renewed except with the previous approval of the Central Government."
-
Sub-section (1) of Section 8 of the MMDR Act, which
provides the maximum and minimum periods for which a
mining lease may be granted will not apply to deemed
mining leases in Goa because sub-section (1) of Section 5
27
of the Abolition Act provides that the period of such deemed
mining leases will extend upto six months from the date of
assent notwithstanding anything contained in the MMDR
Act. In other words, notwithstanding anything contained in
sub-section (1) of Section 8 of the MMDR Act, the period of
a deemed mining lease in Goa was to expire on 22.11.1987
(six months from the date of assent). Under sub-section (2)
of Section 8 of the MMDR Act, a mining lease may be
renewed for a period not exceeding twenty years. Sub-
section (3) of Section 8, however, provides that
notwithstanding anything contained in sub-section (2), if the
State Government is of the opinion that in the interest of
mineral development, it is necessary so to do, it may for
reasons to be recorded, authorise the renewal of a mining
lease in respect of minerals not specified in Part A and
Part B of the First Schedule for a further period or periods
not exceeding twenty years in each case. Thus, renewal
beyond the first renewal for a period of twenty years is
conditional upon the State Government forming an opinion
that in the interest of mineral development, it is necessary to
do so and also conditional upon the State Government
recording reasons for such renewal of a mining lease in
28
respect of iron ore which is not specified in Part A and Part
B of the First Schedule. In Tata Iron and Steel Company
Ltd. v. Union of India & Anr. (supra), this Court has held that
the language of sub-section (3) of Section 8 is quite clear
that ordinarily a lease is not to be granted beyond the time
specified in sub-section (2) and only if the Government is of
the view that it would be in the interest of mineral
development, it is empowered to renew lease of a lessee for
a further period after recording sound reasons for doing so.
This Court has further held in the aforesaid case that this
measure has been incorporated in the legislative scheme as
a safeguard against arbitrariness and the letter and spirit of
the law must be adhered to in a strict manner.
- The MC Rules have been made under Section 13 of the
MMDR Act by the Central Government and obviously could
not have been made in a manner inconsistent with the
provisions of the Act. Sub-rule (6) of Rule 24A of the MC
Rules provides that if an application for the renewal of a
mining lease made within the time referred to in sub-rule (1)
is not disposed of by the State Government before the date
of expiry of the lease, the period of the lease shall be
deemed to have been extended by a further period till the
29
State Government passes order thereon. This sub-rule
cannot apply to a renewal under sub-section (3) of Section 8
of the MMDR Act because the renewal under this provision
cannot be made without express orders of the State
Government recording reasons for renewal in the interest of
mineral development. In other words, so long as there is a
right of renewal in the lessee which in the case of a mining
lease is for a maximum period of twenty years, the provision
regarding deemed extension of a lease can operate, but if
the right of renewal of a mining lease is dependent upon the
State Government forming an opinion that in the interest of
mineral development it is necessary to do so and the State
Government recording reasons therefor, a provision
regarding deemed extension till orders are passed by the
State Government on the application of renewal cannot
apply. We are, therefore, of the opinion that sub-rule (6) of
Rule 24A of the MC Rules will apply to a case of first
renewal under sub-section (2) of Section 8 of the MMDR Act
other than a case covered under sub-rule (9) of Rule 24A of
the MC Rules, but will not apply to renewal under sub-
section (3) of Section 8 of the MMDR Act. In our view, the
deemed mining leases of the lessees in Goa expired on
30
22.11.1987 under sub-section (1) of Section 5 of the
Abolition Act and the maximum of 20 years renewal period
of the deemed mining leases in Goa as provided in sub-
section (2) of Section 8 of the MMDR Act read with sub-
rules (8) and (9) of Rule 24A of the MC Rules expired on
22.11.2007.
Whether dump can be kept beyond the lease area:
- The report of the Justice Shah Commission states that about
2796.24 ha of area have been found to be under encroachment by
the mining lessees out of which about 578.42 ha have been found
to have been illegally used for extraction/removal of iron ore. The
CEC in its report has stated that the CEC visited some of the areas
stated to be under encroachments and a number of lease holders
have filed representations against the findings of the Shah
Commission stating that they are not involved in any
encroachment. According to the Goa Foundation, this was a gross
illegality committed by the mining lessees.
- Mr. A.D.N. Rao, the Amicus Curiae, referred to Section 9 of
the MMDR Act to submit that any removal of minerals from the
leased area can be made by holder of a mining lease only on
payment of royalty. He submitted that the waste material and
31
overburden, therefore, cannot be dumped outside the leased area
without payment of royalty. He referred to paragraph 48 of the
judgment of this Court in Samaj Parivartana Samudaya and Ors. v.
State of Karnataka and Ors. [(2013) 8 SCC 154] in which this
Court has observed that dumping of mining waste (overburden
dumps) also constitutes mining operations within the meaning of
Section 3(d) of the MMDR Act and, therefore, the use of forest
land for such activity would require clearances under the Forest
Conservation Act, 1980. He submitted that in the event dumping
of mining waste outside the leased area is to be done, it can only
be done after clearance is obtained under the Forest Conservation
Act, 1980.
- The learned counsel appearing for the mining lessees
submitted that the lessees have actually used areas outside the
mining lease which are also owned mostly by the lessees for
clearing the dump and this was permissible under the Mineral
Conservation and Development Rules, 1988 (for short `MCD
Rules') and the MC Rules. In particular, they referred to Rule 16 of
the MCD Rules, which provides for separate stacking of non-
saleable minerals, such as over burden and waste material
obtained during mining operation, on the ground earmarked for the
purpose, which should be away from the working pit. They also
32
referred to Rule 64 C of the MC Rules which provides that on
removal of tailings or rejects from the leased area for dumping
outside leased area, such tailings or rejects are not liable for
payment of royalty. The State Government has supported this
stand of the mining lessees that dumping of the overburden and
mining waste outside the lease area was permissible under the
MC Rules and MCD Rules.
- Sections 4(1) and 9(2) of the MMDR Act, Rule 64C of the MC
Rules and Rule 16 of the MCD Rules are extracted below:
"4. Prospecting or mining operations to be
under licence or lease.--(1) No person shall
undertake any reconnaissance, prospecting or
mining operations in any area, except under and in
accordance with the terms and conditions of a
reconnaissance permit or of a prospecting licence
or, as the case may be, a mining lease, granted
under this Act and the rules made thereunder:
Provided that nothing in this sub-section shall affect
any prospecting or mining operations undertaken in
any area in accordance with the terms and
conditions of a prospecting licence or mining lease
granted before the commencement of this Act which
is in force at such commencement.
Provided further that nothing in this sub-section
shall apply to any prospecting operations
undertaken by the Geological Survey of India, the
Indian Bureau of Mines, the Atomic Minerals
Directorate for Exploration and Research of the
Department of Atomic Energy of the Central
Government, the Directorates of Mining and
33
Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limited, a Government Company within the meaning of Section 617 of the Companies Act, 1956.
Provided also that nothing in this sub-section shall apply to any mining lease (whether called mining lease, mining concession or by any other name) in force immediately before the commencement of this Act in the Union territory of Goa, Daman and Diu.
...................................................................."
"9. Royalties in respect of mining leases.--
(1) ................................................................
(2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any (mineral removed or consumed by his agent, manager, employee, contractor of sub- lessee) from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral.
......................................................................."
"64C. Royalty on tailings or rejects.--On removal of tailings or rejects from the leased area for dumping and not for sale or consumption, outside leased area such tailings or rejects shall not be liable for payment of royalty:
Provided that in case so dumped tailings or rejects are used for sale or consumption on any later date
34
after the date of such dumping, then, such tailings
or rejects shall be liable for payment of royalty."
"16. Separate stacking of non-salable minerals.--
(1) The overburden and waste material obtained
during mining operations shall not be allowed to be
mixed with non-salable or sub-grade minerals/ores.
They shall be dumped and stacked separately on
the ground earmarked for the purpose.
(2) The ground selected for dumping of overburden,
waste material, the sub-grade or non-salable
ores/minerals shall be away from working pit. It
shall be proved for absence or presence of
underlying mineral deposits before it is brought into
use for dumping.
(3) Before starting mining operations, the ultimate
size of the pit shall be determined and the dumping
ground shall be so selected that the dumping is not
carried out within the limits of the ultimate size of the
pit except in cases where concurrent backfilling is
proposed."
- Under Section 4 of the MMDR Act, a person who holds a
mining lease granted under the MMDR Act and the Rules
made thereunder is entitled to carry on mining operations in
accordance with the terms of the lease in the leased area
and may carry on all other activities connected with mining
within the leased area. Rule 31 of the MC Rules prescribes
that the lease deed will be in Form K or in a form near
thereto. Part I of Form K delineates the area of the lease
35
and Part II of Form K authorizes the activities that can be
done by the lessee in the leased area. Thus, a holder of a
mining lease does not have any right to dump any reject,
tailings or waste in any area outside the leased area of the
mining lease on the strength of a mining lease granted
under the MMDR Act and the Rules made thereunder.
Such area outside the leased area of the mining lease may
belong to the State or may belong to any private person,
but if the mining lease does not confer any right whatsoever
on the holder of a mining lease to dump any mining waste
outside the leased area, he will have no legal right
whatsoever to remove his dump, overburden, tailings or
rejects and keep the same in such area outside the leased
area. In other words, dumping of any waste materials,
tailings and rejects outside the leased area would be
without a valid authorization under the lease-deed.
-
Moreover, Section 9(2) of the MMDR Act makes the holder
of a mining lease granted on or after the commencement of
the Act liable to pay royalty in respect of any mineral
removed or consumed by him or by his agent, manager,
employee, contractor or sub-lessee from the leased area.
Thus, the moment the mineral is removed or consumed
36
from the leased area, the holder of a mining lease has to
pay royalty. By virtue of Section 9 of the MMDR Act,
tailings and rejects excavated during mining operations
being minerals will also be exigible to royalty the moment
they are removed from the leased area.
-
Rule 64C of the MC Rules states that on removal of tailings
or rejects from the leased area for dumping and not for sale
or consumption, outside leased area such tailings or rejects
shall not be liable for payment of royalty. Rule 64C of the
MC Rules, therefore, exempts the removal of tailings or
rejects from the leased area for the purpose of dumping
and not for the purpose of sale or consumption from the
levy of royalty. Rule 64C of the MC Rules does not
authorise dumping of tailings or rejects in any area outside
the leased area. This Court has held in The Central Bank
of India & Ors. v. Their Workmen, etc. [AIR 1960 SC 12]
that `if a rule goes beyond what the section contemplates,
the rule must yield to the statute'. In our view, if Rule 64C
of the MC Rules suggests that tailings or rejects can be
dumped outside the leased area, it must give way to
Section 4 of the MMDR Act, which does not authorise
dumping of minerals outside the leased area and must give
37
way to Section 9 of the MMDR Act which does not
authorise removal of minerals outside the leased area
without payment of royalty. We, therefore, hold that dump
cannot be kept by the lessees beyond the leased area.
- Rule 16 of the MCD Rules provides that the overburden and
waste material obtained during mining operations shall be dumped
and stacked separately on the ground earmarked for the purpose
and the ground selected for dumping of overburden, waste
material shall be away from working pit. There is nothing in sub-
rules (1), (2) and (3) of Rule 16 of the MCD Rules, which provides
that such overburden or waste material obtained from mining
operations shall be kept `outside the leased area'. On the other
hand, clause (7) of Part II of Form-K provides as follows:
"Liberty and power to enter upon and use a
sufficient part of the surface of the said lands for
the purpose of stacking, heaping, storing or
depositing therein any produce of the mines or
works carried on and any tools, equipment, earth
and materials and substances dug or raised
under the liberties and powers mentioned in this
part."
The expression `said lands' in clause (7) of Part II of Form-K
quoted above refers to the area of the lease in Part I of Form K
and, therefore, is confined to the leased area. Rule 16 of the MCD
Rules, therefore, cannot be read to permit dumping of overburden
38
and waste materials obtained from mining operations outside the
leased area.
- Learned counsel for the lessees, however, submitted that
many of these areas in which they have dumped the overburdens,
tailings and rejects are lands owned by them and by virtue of their
ownership right they could dump the mining waste on their own
lands. This contention of learned counsel appearing for the
lessees loses sight of the fact that most of these lands are located
in forest areas where non-forest activity, such as mining, is
prohibited under Section 2 of the Forest Conservation Act, 1980
without the prior permission of the Central Government. Moreover,
the notification issued under sub-rule (3) of Rule 5 of the
Environment (Protection) Rules, 1986 requiring prior
environmental clearance covers the activity of mining. Sub-rule (3)
of Rule 5 empowers the Central Government to impose prohibition
or restrictions on the location of an industry or the carrying on of
processes and operations in an area for the purpose of protecting
the environment. Inasmuch as the activity of dumping mineral
wastes will pollute the environment, it will come within the meaning
of activity of mining included in the Schedule to the notification
issued under sub-rule (3) of Rule 5 of the Environment (Protection)
Rules, 1986. Thus, for dumping of mining waste on a private land,
39
a prior clearance of the Central Government under the notification
issued under sub-rule (3) of Rule 5 of the Environment (Protection)
Rules, 1986 would be necessary. We, therefore, do not find any
merit in the contention of learned counsel for the lessees that they
can dump mining waste outside the leased area.
Within what distance from the boundaries of National Parks and Wildlife Sanctuaries, is mining not permissible in the State of Goa:
- The Justice Shah Commission has stated in its report that
the National Board for Wild Life (NBWL) adopted "The Wild Life
Conservation Strategy-2002" and took a decision in its meeting
held on 21.1.2002 under the Chairmanship of Prime Minister to
notify the areas within 10 kms. from the boundaries of National
Parks and Sanctuaries as eco-fragile zones under section 3(v) of
the Environment (Protection) Act and Rule 5, Sub-rule (1)(viii) & (x)
of the Environment (Protection) Rules and this decision has been
communicated on 5.2.2002 to the Chief Wild Life Warden,
Government of Goa and the State Government has been
requested to list out such areas and furnish a detailed proposal for
their notification as eco-sensitive areas under the Environment
(Protection) Act, 1986. The Justice Shah Commission has found
that this has not been done till date but the Government of Goa
has allowed mines to operate. In this context, the Justice Shah
40
Commission Report has referred to the order dated 04.12.2006 of
this Court in Writ Petition No.460/2004 (Goa Foundation v. Union
of India) by which this Court had directed the MoEF to refer to the
Standing Committee of the National Board for Wild Life, under
Sections 5B and 5C (2) of the Wild Life (Protection) Act, the cases
in which environmental clearance has already been granted where
activities are within 10 kms. zone. According to the report of the
Justice Shah Commission, in spite of the clear provisions of
Section 3(2)(v) of the Environment (Protection) Act, 1986 and the
EIA Notifications, conferring the jurisdiction, power and authority
on the Central Government (MoEF) to grant or refuse prior
environment clearance for any iron ore mining activity within 10
kms. of National Parks, Sanctuaries and Protected Areas and
despite provisions in Section 5C(2)(b) of the Wild Life (Protection)
Act, 1972 putting a restriction on mining activities inside National
Parks, Sanctuaries and other Protected and eco-sensitive Areas,
mining activities have been permitted within 10 kms. and inside the
National Parks, Sanctuaries and Protected Areas. The report of
the Justice Shah Commission further states that out of the
environmental clearances, the clearances with regard to 74 mining
leases should have been placed before the Standing Committee of
the National Board for Wildlife in accordance with the order dated
41
04.12.2006 of this Court. The report of the Justice Shah
Commission further states that there has been a total failure on the
part of the MoEF in not considering this issue while granting the
environmental clearances.
- The Justice Shah Commission in its report has further stated
that in the order dated 04.08.2006 of this Court in T.N.
Godavarman Thirumulpad v. Union of India & Ors., this Court has
taken a view that 1 km. from the boundaries of National Parks and
Sanctuaries would be a safety zone, subject to the orders that may
be made in IA No.1000 regarding Jamua Ramgarh Sanctuary and
the State will not grant any Temporary Working Permit (TWP) in
these safety zones comprising 1 km. from the boundaries of
National Parks and Sanctuaries and yet some of the mines within
1 km. from the boundaries of National Parks and Sanctuaries have
been allowed in the State of Goa.
- The CEC in its report is of the view that had the MoEF
implemented this Court's orders dated 14.02.2000 and
04.12.2006, the unregulated and environmentally unsustainable
manner in which mining has taken place in Goa would have been
avoided. The CEC has suggested that all environmental
clearances granted for mining leases located upto a distance of 10
kms. from the boundaries of National Parks and Wildlife
42
Sanctuaries should be directed to be kept in abeyance and the
environmental clearances should be directed to be considered by
the Standing Committee of the National Board for Wildlife in
accordance with this Court's order dated 04.12.2006 and the
Additional Principal Chief Conservator of Forests, Regional Office,
MoEF, Bangalore, should be directed to verify, after examining the
EIA/EMP reports and other relevant details, whether the mining
operations will have adverse impact on the flora, fauna and wildlife
habitat and whether the distance of the National Parks/Wildlife
Sanctuaries and that the status of the `forest' have been correctly
stated in the EC/application for taking a decision regarding EC's
and only after considering the recommendations of the Standing
Committee of the National Board of Wildlife and the report of the
Additional Principal Chief Conservator of Forests (Central) and
other relevant information/details, this Court may take a decision.
Mr. Prashant Bhushan, learned counsel appearing for the Goa
Foundation, submitted that there should be no mining activity
within any National Parks/Wildlife Sanctuaries or within 10 kms.
from the boundaries of National Parks and Wildlife Sanctuaries so
that the flora, fauna and wildlife habitat of National Parks and
Wildlife Sanctuaries are protected.
- Learned counsel for the lessees, on the other hand, stated
43
that so far as the State of Goa is concerned, on the one side, there
is a coastal regulation zone in which mining is not permitted and,
on the other side, are the National Parks and Wildlife Sanctuaries
in which again mining is not permitted and as a consequence a
very small strip of land is available for mining. They submitted that
there is no basis for presuming that an area outside the limits of a
National Park or a Wildlife Sanctuary is required to be maintained
as a buffer zone. They submitted that by the order dated
04.12.2006 of this Court passed in Writ Petition (C) No.460 of
2004, this Court did not finally fix the buffer zone of 10 kms. from
the boundaries of National Parks and Wildlife Sanctuaries, but
granted a last opportunity to the States to submit their
recommendations for eco-sensitive zone and that the issue is still
pending in I.A. No.1000 in Writ Petition 202 of 1995 in T.N.
Godavarman Thirumulpad v. Union of India & Ors. They further
argued that by the order dated 04.08.2006, this Court had only
directed that no mining would be permitted by Temporary Working
Permits within 1 km. from the National Parks and Wildlife
Sanctuaries and by the said order, absolute ban has not been
imposed against mining even within 1 km. from the boundaries of
National Parks and Wildlife Sanctuaries. They argued that for
declaration of eco-sensitive zone, a notification under Section 3 of
44
the Environment (Protect) Act, 1986 is mandatory and till date no
such notification has been issued for the State of Goa delineating
any eco-sensitive zone and in the absence of such a notification
mining activities cannot be prohibited beyond the boundaries of a
national park/wildlife sanctuary.
38 Mr. Nadkarni, learned Advocate General appearing for the
State of Goa, submitted that presently the State of Goa is not
permitting mining inside any National Park or Wildlife Sanctuary.
He submitted that each of the seven wildlife sanctuaries in the
State of Goa have got revenue villages and local habitation of
people inside the sanctuaries and before notifying the buffer zone
around a wildlife sanctuary the consequences of the restrictions of
the buffer zone on the local population and on the local
development have to be weighed. He submitted that the State
Government is of the considered opinion that while evolving a
conservation strategy, the following peculiar local constraints in the
State of Goa have to be considered:
(i) The State of Goa is the 3rd smallest State in the
Union; with a total geographical are of only 3,702
square metres; and out of that, an area of 1,440
square metres is under `Forest'
(protected/reserved/private) which is almost about
38% of the total geographical area;
(ii) Out of the said area under `Forest' nearly 62%
45
i.e. 75.35 square metres has been declared as
`National Park', and/or `Wildlife Sanctuary';
(iii) An area of approximately or more than 70
square kilometres falls under the `Coastal
Regulation Zone' (CRZ). Indeed, the CRZ runs
into 106 kms., of the Coastal Belt of the State of
Goa;
(iv) In fact, the total land mass available to the
State of Goa, free from various restrictions, would
further be reduced by 196.80 square kilometers,
i.e. up to 5.32%, on account of Rivers, Lakes and
other Water Bodies;
(v) Indeed, approximately 40% of the land is under
agriculture which the Government has decided not
to be diverted under any circumstances;
(vi) Further, the State Government has also
directed that no `Forest Land' is to be diverted for
any mining purpose.
He submitted that considering all these constraints, the State
Government has recommended that an area up to 1 km. from the
boundaries of National Parks/Wildlife Sanctuaries should be
treated as safety zones but even in these safety zones mining
activity should be prohibited in a phased manner in 5 to 10 years.
- Mr. Mohan Parasaran, learned Solicitor General, submitted
that the Principal Chief Conservator of Forests and Chief Wildlife
Warden, Government of Goa, vide his letter dated 02.05.2013 has
submitted six proposals for declaration of eco-sensitive zones
46
around six protected areas in the State of Goa (National
Parks/Wildlife Sanctuaries) and the proposals were referred to a
Committee constituted under the Chairmanship of Dr. Rajesh
Gopal, Additional Director General of Forests and Member
Secretary of National Tiger Conservation Authority-Chairman, with
the following Terms of Reference:
(i) The Committee will undertake a site specific site
survey of all six protected areas in Goa, with
reference to studying the topography and
report on the existing natural boundaries
around that is outside each protected area.
Such boundaries could include inter alia rivers,
hills etc.
(ii) The Committee will draw up a definition of what
could constitute a credible natural boundary,
always keeping in mind that the object is to
protect the flora, fauna and biodiversity in the
PA from biotic pressure.
(iii) The Committee will submit its views on whether
any of the natural boundaries of the PAs in
Goa could be an effective boundary of a robust
Eco-Sensitive Zone around the P.A.
He submitted that the Committee has submitted its report on
18.10.2013 and the report has been considered by the Ministry of
Environment and Forests and by office memorandum dated
24.10.2013, the Ministry of Environment and Forests has not
accepted the recommendation of the Government of Goa
regarding buffer zone and instead accepted the recommendation
47
of the Committee to define the eco-sensitive zones in site specific
manner subject to the relevant Court orders on the subject and
that a draft notification defining eco-sensitive zones around each of
the six protected areas would be issued for stakeholder
consultations.
-
We have considered the submissions of learned counsel for
the parties and we find that presently no mining operations
are being carried on inside any National Park or Wildlife
Sanctuary, and the State of Goa has taken a stand before us
that it will not permit any mining operations inside any
National Park or Wildlife Sanctuary. Hence, the only
question that we have to decide is whether mining could
have been permitted or could be permitted within a certain
distance from the boundaries of the National Park or Wildlife
Sanctuary in the State of Goa.
-
This Court in exercise of its power under Article 32 of the
Constitution can direct the State to prohibit mining activities
in an area adjacent to a National Park or a Wildlife Sanctuary
for the purpose of protecting the flora, fauna and wildlife
habitat of the National Park/Wildlife Sanctuary because
these constitute part of the natural environment necessary
for healthy life of persons living in the State of Goa. The
48
right to life under Article 21 of the Constitution is a guarantee
against the State and for enforcing this fundamental right of
persons the State, which alone has a right to grant mining
leases of the mines located inside the State, can be directed
by the Court by an appropriate writ or direction not to grant
mining leases or not to allow mining that will be violative
under Article 21 of the Constitution. In Re: Construction of
Park at NOIDA near Okhla Bird Sanctuary [(2011) 1 SCC
744] a three-Judge Bench (Forest Bench) of this Court has
observed:
"...... Environment is one of the facets of the right
to life guaranteed under Article 21 of the
Constitution. Environment is, therefore, a matter
directly under the Constitution and if the Court
perceives any project or activity as harmful or
injurious to the environment it would feel obliged to
step in. ...."
Thus, the submissions of learned counsel for the lessees that until
a notification is issued under the Environment (Protection) Act,
1986 and the Rules made thereunder prohibiting mining activities
in an area outside the boundaries of a National Park/Wildlife
Sanctuary, no mining can be prohibited by this Court is
misconceived.
- We may now examine whether this Court has by the orders
49
passed on 04.08.2006 and 04.12.2006, prohibited mining activities
around National Parks or Wildlife Sanctuaries. When we read the
order of this Court passed on 04.08.2006 in T.N. Godavarman
Thirumulpad v. Union of India & Ors., we find that the Court while
considering the question of grant of Temporary Working Permits
for mining activities in National Parks, Sanctuaries and forest
areas, directed that Temporary Working Permits shall be granted
only where the conditions stipulated in the said order are satisfied.
Condition Nos. (ii) and (iii) stipulated in the order dated 04.08.2006
are extracted hereinbelow:
"(ii) The mine is not located inside any National
Park/Sanctuary notified under Section 18, 26-A
or 35 of the Wildlife (Protection) Act, 1972;
(iii) The grant of the T.W.P. would not result in
any mining activity within the safety zone around
such areas referred to in (ii) above, (as an interim
measure, one kilometre safety zone shall be
maintained subject to the orders that may be
made in I.A. No.1000 regarding Jamua Ramgarh
Sanctuary);'"
It would, thus, be clear that this Court was of the opinion that grant
of Temporary Working Permits should not result in any mining
activities within the safety zones around a National Park or Wildlife
Sanctuary and as an interim measure, one kilometer safety zone
was to be maintained subject to the orders that may be made in
I.A. No.1000 in Jamua Ramgarh Sanctuary. This order dated
50
04.08.2006 has not been varied subsequently nor any orders
made in I.A.No. 1000 regarding Jamua Ramgarh Sanctuary saying
that Temporary Working Permits can be granted within one
kilometer safety zone beyond the boundaries of a National Park or
Wildlife Sanctuary. The result is that the order passed by this
Court saying that there will be no mining activity within one
kilometer safety zone around National Park or Wildlife Sanctuary
has to be enforced and there can be no mining activities within this
area of one kilometer from the boundaries of National Parks and
Wildlife Sanctuaries in the State of Goa.
- When, however, we read the order dated 4.12.2006 of this
Court in Writ Petition (C) No.460 of 2004 (Goa Foundation v.
Union of India), we find that the Court has not prohibited any
mining activity within 10 kilometer distance from the boundaries of
the National Parks or Wildlife Sanctuaries. The relevant portion of
the order dated 04.12.2006 is quoted hereinbelow:
"The Ministry is directed to give a final
opportunity to all States/Union Territories to
respond to its letter dated 27th May, 2005. The
State of Goa also is permitted to given
appropriate proposal in addition to what is said to
have already been sent to the Central
Government. The Communication sent to the
States/Union Territories shall make it clear that if
the proposals are not sent even now within a
period of four weeks of receipt of the
communication from the Ministry, this Court may
51
have to consider passing orders for
implementation of the decision that was taken on
21st January, 2002, namely, notification of the
areas within 10 km. of the boundaries of the
sanctuaries and national parks as eco-sensitive
areas with a view to conserve the forest, wildlife
and environment and having regard to the
precautionary principles. If the State/Union
Territories now fail to respond, they would do so
at their own risk and peril.
The MoEF would also refer to the Standing
Committee of the National Board for Wildlife,
under sections 5 (b) and 5 (c) (ii) of the Wild Life
(Protection) Act, the cases where environment
clearance has already been granted where
activities are within 10 km. zone."
It will be clear from the order dated 4.12.2006 of this Court that this
Court has not passed any orders for implementation of the
decision taken on 21st January, 2002 to notify areas within 10 kms.
of the boundaries of National Parks or Wildlife Sanctuaries as eco
sensitive areas with a view to conserve the forest, wildlife and
environment. By the order dated 04.12.2006 of this Court,
however, the Ministry of Environment and Forest, Government of
India, was directed to give a final opportunity to all States/Union
Territories to respond to the proposal and also to refer to the
Standing Committee of the National Board for Wildlife the cases in
which environment clearance has already been granted in respect
of activities within the 10 kms. zone from the boundaries of the
wildlife sanctuaries and national parks. There is, therefore, no
52
direction, interim or final, of this Court prohibiting mining activities
within 10 kms. of the boundaries of National Parks or Wildlife
Sanctuaries.
-
Apart from the powers of the Court to give a direction
prohibiting mining activities up to a certain distance from the
boundaries of National Parks or Wildlife Sanctuaries, the Central
Government has powers under Rule 5 of the Environment
Protection Rules, 1986 to prohibit carrying on of mining operations
in areas which are proximate to a Wildlife Sanctuary or a National
Park. Rule 5 of the Environment (Protection) Rules, 1986 is
extracted herein under:
"5. Prohibitions and restrictions on the location
of industries and the carrying on processes and
operations in different areas
(1) The Central government may take into
consideration the following factors while prohibiting
or restricting the location of industries and carrying
on of processes and operations in different areas-
(i) Standards for quality of environment in its various
aspects laid down for an area.
(ii) The maximum allowable limits of concentration
of various environmental pollutants (including noise)
[or an area.
(iii) The likely emission or discharge of
environmental pollutants from an industry, process
or operation proposed to be prohibited or restricted.
(iv) The topographic and climatic features of an
area.
53
(v) The biological diversity of the area which, in the opinion of the Central Government needs to be preserved.
(vi) Environmentally compatible land use.
(vii) Net adverse environmental impact likely to be caused by an industry, process or operation proposed to be prohibited or restricted.
(viii) Proximity to a protected area under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or a sanctuary, National Park, game reserve or closed area notified as such under the Wild Life (Protection) Act, 1972 or places protected under any treaty, agreement or convention with any other country or countries or in pursuance of any decision made in any international confcrcnce1 association or other body.
(ix) Proximity to human settlements. (x) Any other factor as may be considered by the Central Government to be relevant to the protection of the environment in an area.
(2) While prohibiting or restricting the location of industries and carrying on of processes and operations in an area, the Central Government shall follow the procedure hereinafter laid down.
(3) (a) Whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the locations Of an industry or the carrying on of processes and operations in an area, it may by notification in the Official Gazette and in such other manner as the Central government may deem necessary from time to time, give notice of its intention to do so.
(b) Every notification under clause (a) shall give a brief description of the area, the industries, operations, processes in that area about which such notification pertains and also specify the reasons for
54
the imposition of prohibition or restrictions on the
locations of the industries and carrying on of
process or operations in that area.
(c) Any person interested in filing an objection
against the imposition of prohibition or restrictions
on carrying on of processes or operations as
notified under clause (a) may do so in writing to the
Central Government within sixty days from the date
of publication of the notification in the Official
Gazette.
(d) The Central Government shall within a period of
one hundred and twenty days from the date of
publication of the notification in the Official Gazette
consider all the objections received against such
notification and may within one hundred and eighty
days from such day of publication] impose
prohibition or restrictions on location of such
industries and the carrying on of any process or
operation in an area.
(4) Notwithstanding anything contained in sub-rule
(3), whenever it appears to the Central Government
that it is in public interest to do so, it may dispense
with the requirement of notice under clause (a) of
sub-rule (3)."
- Sub-rule (1) of Rule 5 lists the number of factors, which the
Central Government has to take into consideration while
prohibiting or restricting the carrying on of processes and
operations in different areas. Sub-rule (2) of Rule 5 provides that
before prohibiting the processes and operations in the area the
Central Government has to follow the procedure laid down in sub-
rule (3). The procedure in sub-rule (3) of Rule 5 of the
Environment (Protection) Rules, 1986 includes giving notice of the
55
intention of the Central Government to prohibit the carrying on of
processes and operations in the reserved area, giving brief
description of the area, the operations and processes in that area
relating to which the notification pertains and also specifying the
reasons for the imposition of the prohibition on carrying on of the
processes or operations in that area, and an opportunity to
persons interested in filing an objection against the imposition of
such prohibition on carrying on of processes or operations by the
Central Government. These procedural checks have been made
in Rule 5 because a notification issued by the Central Government
prohibiting an operation or a process will have serious
consequences on the rights of different persons. For example,
persons who are carrying on the process or operation and those
who are directly or indirectly employed in the process or the
operation may be affected by the proposed prohibition of the
process or the operation in the entire area. Therefore until the
Central Government takes into account various factors mentioned
in sub-rule (1), follows the procedure laid down in sub-rule (3) and
issues a notification under Rule 5 prohibiting mining operations in
a certain area, there can be no prohibition under law to carry on
mining activity beyond 1 km. of the boundaries of National Parks or
Wildlife Sanctuaries.
56
-
In fact, we find that the process of issuing a notification under
Rule 5 of the Environmental Protection Rules, 1986
prohibiting mining activities in eco-sensitive zones around
the National Parks or Wildlife Sanctuaries in the State of Goa
has now been initiated. The Government of Goa vide letter
dated 02.05.2013 submitted the following six proposals for
declaration of eco- sensitive zones around protected areas in
the State of Goa to the Ministry: (i) Cotigao Wildlife
Sanctuaries; (ii) Netravali Wildlife Sanctuary; (iii) Bhagwan
Mahaveer Wildlife Sanctuary and Bhagwan Mahaveer
National Park; (iv) Madei Wildlife Sanctuary; (v) Bondla
Wildlife Sanctuary; and (vi) Dr. Salim Ali Bird Sanctuary.
These six proposals were referred to a Committee
constituted under the Chairmanship of Dr. Rajesh Gopal,
Additional Director General of Forests and Member
Secretary of National Tiger Conservation Authority, with
specified terms of reference and the Committee gave its
findings and the Ministry of Environment and Forests,
Government of India by the Office Memorandum dated
24.10.2013 have accepted the findings of the Committee and
rejected the proposals of the Government of Goa. It is also
57
stated in the Office Memorandum dated 24.10.2013 of the
Ministry of Environment and Forests, Government of India
that a draft notification defining Eco-Sensitive Zones around
each protected area is being issued for stakeholder
consultations. This notification will have to be issued under
sub-rule (3) of Rule 5 of the Environment (Protection) Rules,
1986, and after objections are received, the Central
Government will have to consider the same and thereafter
take the decision regarding imposition of prohibition of
mining activities in the eco sensitive areas within the period
stipulated in sub-rule 3(b) of Rule 5 of the Environment
(Protection) Rules, 1986. At this stage, we can only direct
the Ministry of Environment and Forests to follow the
procedure and issue the notification of eco sensitive zones
under Rule 5 of the Environment (Protection) Rules, 1986
within six months.
Whether there has been a violation of Rules 37 and 38 of the MC Rules by the mining lessees in the State of Goa:
- The Justice Shah Commission has found in its report that in
the State of Goa, 16 companies/firms/individuals are carrying
out mining operations under different leases granted to them
as a single unit as if the leases are amalgamated. The Shah
58
Commission has referred to Rule 38 of the MC Rules which
provides that the State Government may, in the interest of
mineral development and with reasons to be recorded in
writing, permit amalgamation of two or more adjoining leases
held by a lessee provided that the period of amalgamated
leases shall be co-terminus with the lease whose period will
expire first. The Justice Shah Commission is of the opinion
that as amalgamation of two leases can only be permitted by
the State Government for reasons to be recorded in writing,
and no such permission has been taken from the State
Government for the amalgamation of different leases as a
single unit, the lessees who are operating different leases as
a single unit have violated Rule 38 of the MC Rules.
-
The CEC in its report, however, has not stated about any
violation of Rule 38 of the MC Rules and has instead stated
that Rule 37 of the MC Rules which provides that the lessee
shall not, without the previous consent in writing of the State
Government assign, sublet, mortgage, or in any other
manner, transfer the mining lease, or any right, title or
interest therein, has been violated by several lessees. The
CEC has reported that there are several complaints received
59
by the State Government that the leases have been operated
by the persons other than the lessees. The CEC has
observed in its report that Rule 37 itself provides that in such
cases of violation of Rule 37, the State Government may
determine the mining lease, but the State Government has
taken no action and has taken a stand that working of the
mining leases by a person other than lease holder is a
prevailing mining practice in Goa and these facts are in the
knowledge of the Government. Mr. Prashant Bhushan,
learned counsel for the Goa Foundation, submitted that in all
these cases the violation should be identified by a
Committee headed by the Chief Secretary, Goa, and those
lessees who have been found to have violated Rule 37 of the
MC Rules, should be penalized by determination of the
leases.
-
Rules 37 and 38 of the MC Rules are extracted hereinbelow:
"37. Transfer of lease. - (1) The lessee shall not, without the previous consent in writing of the State Government and in the case of mining lease in respect of any mineral specified in [Part `A' and Part `B' of] the First Schedule to the Act, without the previous approval of the Central Government :-
60
(a) assign, sublet, mortgage, or in any other manner, transfer the mining lease, or any right, title or interest therein, or
(b) enter into or make any bonafide arrangement, contract, or understanding whereby the lessee will or may be directly or indirectly financed to a substantial extent by, or under which the lessee's operations or undertakings will or may be substantially controlled by, any person or body of persons other than the lessee:
Provided further that where the mortgagee is an institution or a Bank or a Corporation specified in Schedule V, it shall not be necessary for the lessee to obtain any such consent of the State Government.
(1A) The State Government shall not give its consent to transfer of mining lease unless the transferee has accepted all the conditions and liabilities which the transferor was having in respect of such mining lease.
(2) Without prejudice to the provisions of sub-rule (1) the lessee may, subject to the conditions specified in the proviso to rule 35, transfer his lease or any right, title or interest therein to a person who has filed an affidavit stating that he has filed an up-to-date income-tax returns, paid the income tax assessed on him and paid the income tax on the basis of self-assessment as provided in the Income Tax Act, 1961( 43 of 1961), on payment of a fee of five hundred rupees to the State Government:
Provided that the lessee shall make available to the transferee the original or certified copies of all plans of abandoned workings in the area and in a belt 65 metres wide surrounding it;
61
Provided further that where the mortgagee is an institution or a Bank or a Corporation specified in Schedule V, it shall not be necessary for any such institution or Bank or Corporation to meet with the requirement relating to income tax;
Provided further that the lessee shall not charge or accept from the transferee any premium in addition to the sum spent by him, in obtaining the lease, and for conducting all or any of the operations referred to in rule 30 in or over the land leased to him;
(3) The State Government may, by order in writing determine any lease at any time if the lessee has, in the opinion of the State Government, committed a breach of any of the provisions of sub-rule (1) or sub-rule (1A) or has transferred any lease or any right, title or interest therein otherwise than in accordance with sub- rule (2);
Provided that no such order shall be made without giving the lessee a reasonable opportunity of stating his case.
- Amalgamation of leases. - The State Government may, in the interest of mineral development and with reasons to be recorded in writing, permit amalgamation of two or more adjoining leases held by a lessee:
Provided that the period of amalgamated leases shall be co-terminus with the lease whose period will expire first:
Provided further that prior approval of the Central Government shall be required for such amalgamation in respect of leases for minerals
62
specified in Part `A' and Part `B' of the First
Schedule to the Act.
It will be clear from sub-rule (1)(a) of Rule 37 that the lessee
cannot assign, sublet, mortgage, or in any other manner, transfer
the mining lease, or any right, title or interest therein, without the
previous consent in writing of the State Government in the case of
those minerals which are not specified in Part A and Part B of the
First Schedule to the Act. Since iron ore is specified in Part C of
the First Schedule to the Act, the previous consent in writing of the
State Government is necessary before any such transfer is made
by a mining lessee. Sub-rule (1A) of Rule 37 further states that the
State Government shall not give its consent to transfer of a mining
lease unless the transferee has accepted all the conditions and
liabilities which the transferor was having in respect of such mining
lease. Sub-rule (3) of Rule 37 further provides that the State
Government may, by order in writing determine any lease at any
time if the lessee has, in the opinion of the State Government
committed a breach of any of the provisions of sub-rule (1) or sub-
rule (1A) of Rule 37 of the MC Rules. These provisions have been
made in Rule 37 to ensure that all the conditions and liabilities to
which a lessee is subjected to under a mining lease are also
accepted by the transferee. Sub-rule (2) of Rule 37 further
63
provides that without prejudice to the provisions of sub-rule (1), the
lessee may transfer his lease or any right, title or interest therein to
a person who has filed an affidavit stating that he has filed up-to-
date income-tax returns, paid the income-tax assessed on him and
paid the income-tax on the basis of self-assessment as provided in
the Income Tax Act, 1961. This provision is meant to ensure that
the transferee of a mining lease is an income-tax assessee and is
paying his income tax assessed on him and due from him on the
basis of self-assessment. Sub-rule (3) of Rule 37 empowers the
State Government to determine any lease at any time if the lessee
has, in the opinion of the State Government, committed a breach
of any of the provisions of sub-rule (1) or sub-rule (1A) or has
transferred any lease or any right, title, or interest therein
otherwise than in accordance with sub-rule (2) after giving the
lessee a reasonable opportunity of stating his case. The intent of
the Rule-making authority in making these provisions in Rule 37 is
that the liabilities and conditions in a mining lease are also
enforceable against the transferee and that the transferee pays his
dues towards income tax regularly. Rule 37, therefore, cannot be
allowed to be violated by the lessees with impunity and the State
Government cannot overlook transfers by saying that the transfers
of the mining leases are part of the mining practice in the State of
64
Goa. In our view, if these violations of Rule 37 are allowed, there
shall be substantial leakage of revenue and mining operations
cannot be effectively regulated and controlled by the State
Government. The State Government, therefore, must initiate
action against those mining leases who violate Rule 37 of the
Rules.
-
Rule 38 of the MC Rules provides that the State Government
may, in the interest of mineral development and with reasons
to be recorded in writing, permit amalgamation of two or
more adjoining leases held by a lessee, provided that the
period of amalgamated leases shall be co-terminus with the
lease whose period will expire first. If the State Government
has not permitted amalgamation of adjoining leases in the
interest of mineral development and has not recorded the
reasons for such permission, the State Government cannot
allow the amalgamation of the leases.
Was there a complete lack of control on production and transportation of mineral from the mining leases in the State of Goa:
65
-
The CEC in its report has stated that in the State of Goa,
there is no system of periodic verification of the quantity of
iron ore produced in the mining leases, the payments of
royalty, the permits issued for transportation of mineral by
the Mining Department, the transit permits issued by the
Forest Department nor any reconciliation of the quantity of
the mineral stated to have been produced in the mining
lease with the quantity of the mineral for which royalty has
been paid and transit permits have been issued, and there is
no verification of the transit permits at the check posts and
no verification of the quantity of the mineral
exported/domestically used vis-`-vis the quantity legally
produced. According to the CEC, in the absence of such
checks/verifications/controls, illegal mining can easily be
undertaken and the actual quantity of iron ore produced and
transported from the mining leases may not be accounted for
by the State of Goa or by the lessees, resulting in leakage of
revenue. The CEC in its report has given a chart to show
the difference of figures in the iron ore exported as provided
by the Goan Mineral Ore Exporters' Association and the total
iron ore produced in the State of Goa as per reports
66
compiled by the Indian Bureau of Mines, which is extracted
hereinbelow:
Year Goan Iron Ore Total (In Lakh MT) Exports Production
Excess of
exports over
production
2006-2007 308.940 277.931 31.009 2007-2008 334.334 300.091 34.253 2008-2009 380.752 315.994 64.758 2009-2010 456.869 331.649 125.22 2010-2011 468.464 328.059 140.405 Total 1949.369 1553.724 395.645
According to the CEC, there is every reason to believe that the
excess quantity of 395.645 lakh MT, as shown in the aforesaid
chart, is illegally mined ore.
-
We entirely agree with the CEC report that in the absence of
proper checks, verifications and controls, there is bound to
be illegal mining, storage and transportation of minerals, but
we find that after the CEC Report, the Goa (Prevention of
Illegal Mining, Storage and Transportation of Minerals)
Rules, 2013 have been framed by the State Government
under Section 23(c) of the MMDR Act. A reading of these
Rules show that several provisions have been made in these
67
rules to prevent illegal mining and to regulate the sale,
export and transit of ore, storage of mineral and
transportation and winning of mineral. The rules also
provide for establishment of check posts, barriers and
weighbridges and inspection of minerals in
transit.
Moreover, these rules empower any person authorised by
the Government to enter, inspect, search and seize articles.
These rules will have to be strictly enforced by the State
Government and we hope that by such strict enforcement of
these rules, the mining, storage and transportation of
minerals in the State of Goa will get controlled and regulated
and the leakages and evasion of revenue will, to a large
extent, be prevented.
To what extent mining has damaged the environment in Goa and what measures are to be taken to ensure inter- generational equity and sustainable development:
- Mr. Prashant Bhushan, learned senior counsel appearing for
Goa Foundation, relying on the report of the Justice Shah
Commission, submitted that substantial damage has been caused
to the eco sensitive zone in Goa by excavating large quantities of
iron ore through mining and as suggested by the Justice Shah
Commission action should be taken in this regard. He submitted
68
that the conditions stipulated in the EIA clearances imposed by the
Chief Wildlife Warden, Goa, have not been implemented. He
submitted that the environmental clearance system has actually
collapsed resulting in amassing of wealth by certain individuals
and companies at the cost of the environment and the eco-system.
He submitted that principles of sustainable development and inter-
generational equity which were part of the fundamental right under
Article 21 of the Constitution, require that a cap should be put on
the annual excavation of iron ore from different mines in the State
of Goa, after taking into account the need to conserve iron ore
resources for future generations and the carrying capacity of the
State of Goa for mining and transportation of mineral ores.
- Learned counsel appearing for the lessees, on the other
hand, submitted that there are adequate provisions in the MCD
Rules for preventing damage to the environment and for
restoration of the environment. They referred to Rules 23A, 23B,
23D and 23E of the MCD Rules which relate to the mine closure
plan which must provide for protective measures including
reclamation and rehabilitation work. They submitted that the holder
of the mining lease, therefore, has to take all the protective
measures including reclamation and rehabilitation work before
69
abandoning the mine. They submitted that Chapter V of the MCD
Rules also contains various provisions which a holder of mining
lease has to comply and these provisions include precautions for
protection of environment and controlling of pollution while
conducting mining operations in the area. In reply to the
submissions of Mr. Bhushan that there should be a cap on the
annual excavation of mineral ore in the State of Goa to ensure that
future generations are not denied the mineral resources, Mr. Mukul
Rohtagi, learned senior counsel appearing for Sesa Goa Limited,
relied on a publication of the British Geological Survey and
submitted that there would never be any scarcity of mineral
resources and there would be enough for the future generations.
He submitted that Sesa Goa Limited has also taken steps to
reclaim the land which was damaged through mining operation
and produced photographs to show how reclamation and
rehabilitation work has been done after mining was over in any
area.
-
Mr. N.S. Nadakarni, learned Advocate General for the State
of Goa, submitted that in the Goa Mineral Policy of 2013, State
Government has proposed a capping of the mineral ores to be
excavated annually in the State of Goa based on the carrying
70
capacity of public roads and the need to protect inter-generational
equity. He submitted that as per the Goa Mineral Policy of 2013,
until the road capacity in Goa improves, there should be a gross
capping at 45 MT per annum.
- After considering the aforesaid submissions of learned
counsel for the parties, we took the view that a Committee of
Experts must conduct a macro EIA study and propose ceiling of
the annual excavation of iron ore from the State of Goa,
considering its iron ore resources and its carrying capacity and
keeping in mind the principles of sustainable development and
inter-generational equity and all other relevant
factors.
Accordingly, by orders dated 11.11.2013 and 18.11.2013, we
constituted an Expert Committee comprising Professor C.R. Babu
(Ecologist), Dr. S.D. Dhiman (Geologist/Hydro- geologist),
Professor B.K. Mishra (Mineralogist), Professor S.
Parameshwarppa (Forestry), Shri Parimal Rai (Nominee of the
Ministry of Environment and Forests, Government of India). This
Expert Committee has submitted an interim report dated
14.03.2014. In this report, the Expert Committee has indicated
that the economy of Goa depends on tourism and iron ore mining,
besides agriculture, horticulture and minor industries, but in recent
71
years, while there has been increase in the growth rate in tourism
and mining, there has been a decline in the growth rate of
agriculture and fishing. The Expert Committee has in particular
highlighted the damage that has been done by increase in the
production of iron ore through mining to the environment in Goa in
the following words:
"The production of iron ore has jumped from
14.6 million tons in 1941 to 41.17 million tons
in 2010-11. In 1980's the production was
about 10 MT/annum. The quantum jump in
iron ore production in Goa was essentially due
to steep rise in exports of fines and other low
grade ore of 42% Fe content to China. This
has led to massive negative impacts on all
ecosystems leading to enhanced air, water,
and soil pollution affecting quality of life across
Goa. This is evident by three important
reports i.e. (i) Area wide Environmental
Quality Management (AEQM) Plan for the
Mining belt of Goa by Tata Energy Research
Institute, New Delhi and Goa (1997) and it
was submitted to the Directorate of Planning,
Statistics, and Evaluation, Government of
Goa, (ii) Environmental and Social
Performance Indicators and Sustainability
Markers in Minerals Development Reporting
progress towards improved Ecosystem Health
and Human Well-being, Phase-III by TERI and
International Development Research Centre,
Ottawa, Canada (2006) and (iii) the Regional
Environmental Impact Study of iron ore mining
in Goa region sponsored by MoEF, New Delhi
(2014) by Indian School of Mines. Besides
the above three main Reports, a number of
scientific research papers on the impact of
iron ore mining on the environment and
72
ecology of diverse ecosystems were
published by scientists working at Goa
university and NIO.
These reports and publications substantiates
that the mining, particularly the enhanced
level of annual production contributed to
adverse impacts on the ecological systems,
socio economics of Goa and health of people
of Goa leading to loss of ecological integrity.
This is due to enhanced levels of pollutants,
particularly RSPM and SPM, sedimentation of
materials from dumps and iron ore in rivers,
estuaries and shallow depth (20m) of sea
water, agricultural fields, high concentration of
Fe and Mn in surface waters and their
bioaccumulation."
The Expert Committee has also studied the sustainability of iron
ore mining in the Goa and after analyzing the existing data from
TERI report, 1997, ISM, Dhanbad Report, 2013, Pollution Control
Board, Goa (Annual Report) and relevant literature relating to
sustainability and after adopting the Folchi method has given the
opinion that mining at the rate of 20 to 27.5 million tons per annum
appears sustainable in the State of Goa. However, in its summary
of recommendations, the Expert Committee has made these
recommendations:
"10. To eliminate the element of subjectivity,
due to the time constraints and limitation of
73
available authentic time series data relating to
mineral resources and environmental impact
of mining in the State of Goa, this Committee
suggests that mining be permitted to be
carried out at the level of 20 million ton per
annum with adequate monitoring of impacts
on different ecological and environmental
parameters, which will also help this
Committee in its future appraisal.
11. Till the scientific study by this Committee
is completed, which may take about 12
months more, the mining activity at levels as
directed by the Hon'ble Supreme Court, be
strictly monitored and regulated by the
Department of Mines and Geology and Goa
State Pollution Control Board of the State of
Goa, in consultation with other statutory
bodies such as Indian Bureau of Mines,
Ministry of Environment and Forests (Govt. of
India) and others."
It, thus, appears that the Expert Committee has suggested that for
the time being annual excavation of 20 million tons of iron ore may
be permitted in Goa with adequate monitoring impacts on different
ecological and environmental parameters, which will also help the
Expert Committee in its future appraisal. Regarding the authorities
or agencies which should strictly monitor and regulate the mining
activities in Goa, the Expert Committee has recommended that the
Department of Mines and Geology of Government of Goa and the
Goa State Pollution Control Board in consultation with other
statutory bodies such as Indian Bureau of Mines, Ministry of
Environment and Forests (Government of India) should carry on
74
such monitoring and regulation strictly. The Expert Committee,
however, has said nothing about how the mining dumps inside or
outside the leased areas noticed by the Justice Shah Commission
are to be dealt with presumably because in our order dated
11.11.2013 we had not issued any direction in this regard. We
think that we should seek the opinion of the Expert Committee in
this regard.
- We find that the State Government has also engaged the
services of NEERI for macro level EIA study for Clusters of Iron
Ore Mines in the State of Goa, but NEERI in its preliminary report
has not recommended as to what should be the total quantum of
annual production of iron ore in Goa in future. We also find that
Ministry of Environment and Forests, Government of India had
entrusted the Indian School of Mines (ISM), Dhanbad to carry out
a regional environment impact assessment study of mining in Goa
region and ISM, Dhanbad has submitted its report proposing a cap
of 24.995 MT per annum on the basis of the carrying capacity of
the existing infrastructure of Goa. Relevant portion of the report of
ISM, Dhanbad, is extracted hereinbelow:
"20.7.4.7 Cluster Wise Capping on Transport
The cap of 24.995MTPA proposed in the aforementioned section is dependent primarily on the existing infrastructure and must be
75
followed based on the spatial variations. To present an overall capacity of mining in North Goa and South Goa, the road capacity has been taken as a parameter. The capacity was arrived at 13.685MTPA for North Goa and 11.31MTPA for South Goa. The cap proposed will not include the mines lying within the buffer zones as these have imposed restriction of phasing out in time bound period. Further, this cap can be represented into a cluster wise scenario to decipher how much each cluster will be able to transport under the existing transport facilities. The values are presented in table below.
Table 20.7.19: Cluster Wise Capping on Transport Based on Existing Transport Facilities
Cluster Routes Capacity of Capacity of the Routes the Cluster (MTPA) (MTPA) Adwalpal- Adwalpale to 0.81 5.875 Bicholim Sirsai Jetty Shrigao to Sirsai 1.26 Jetty Shrigao to 1.16 Kalvin Jetty Dahbdhaba to 2.645 Sarmanas Jetty Velguem- Sonshi to 2.11 7.9 Pissurlem Amona Jetty Sanquelim to 0.52 Amona Jetty Honda to 1.32 Navelim(Maina) Sonshi to 1.32 Khazan Jetty Ambesi to 1.29 Cotambi Jetty Digneum to 1.34 Surla Jetty
76
Codli-Costi Codli to Amona 1.94 4.69 Jetty Codli to Capxem 1.24 Jetty Costi to 1.51 Sanvordem Collem Collem to 1.94 2.76 Amona Jetty Shigao to 0.82 Sanvordem Tollem Tollem to 1.71 1.71 Shelvona Jetty Maina- Sulcorna to 1.02 2.06 Sulcorna Shelvona Jetty Maina to 1.04 Shelvona Total capacity of the Region 24.995
Thus, the cumulative ore transportation capacity of the existing
road networks is 24.995MTPA."
We, therefore, find that the Expert Committee as well as ISM,
Dhanbad, after considering the available data and
after
considering the adverse impact on environment and the limited
carrying capacity of the transport system in Goa, are of the opinion
that a cap between 20 to 27.5 million tons per annum should be
fixed for excavation of iron ore in the State of Goa. In its
recommendations, however, the Expert Committee has suggested
that till the scientific study by the Expert Committee is completed in
about 12 months or so, and more of data including impacts on
different ecological environmental parameters is available through
77
monitoring of the impacts by different agencies including the Goa
State Pollution Control Board, 20 million tons per annum should be
fixed as the annual excavation of iron ore in Goa.
- Even this mining of 20 million tons per annum in the State of
Goa, according to the Expert Committee, has to be strictly
monitored and regulated by the Department of Mines and Geology,
Government of Goa and the Goa State Pollution Control Board in
consultation with other statutory bodies such as the Indian Bureau
of Mines, the Ministry of Environment and Forests (Government of
India) and others. It was the responsibility of the Government of
Goa, Department of Mines, to enforce the provisions of the MMDR
Act, the MC Rules and the MCD Rules, but as we have already
noticed, this responsibility was not properly discharged. We hope
that in future, it will enforce the provisions of the MMDR Act, the
MC Rules, the MCD Rules and the Goa (Prevention of Illegal
Mining, Storage and Transportation of Minerals) Rules, 2013.
- The Goa State Pollution Control Board has immense powers
under the Water (Prevention & Control of Pollution) Act, 1974 (for
short `the 1974 Act') to prevent pollution of water. Section 33A of
the 1974 Act which confers on the State Pollution Control Board
the power to give directions is quoted hereinbelow:
78
"33A. Power to give directions.--
Notwithstanding anything contained in any
other law, but subject to the provisions of this
Act, and to any directions that the Central
Government may give in this behalf, a Board
may, in the exercise of its powers and
performance of its functions under this Act,
issue any directions in writing to any person,
officer or authority, and such person, officer or
authority shall be bound to comply with such
directions.
Explanation.--For the avoidance of doubts, it
is hereby declared that the power to issue
directions under this section includes the
power to direct--
(a) the closure, prohibition or regulation of any
industry, operation or process; or
(b) the stoppage or regulation of supply of
electricity, water or any other service."
Similarly, the Air (Prevention and Control of Pollution) Act, 1981(for
short `the 1981 Act') confers immense powers on the State
Pollution Control Board to prevent air pollution. Section 31A of the
1981 Act which confers powers on the State Pollution Control
Board to give directions is quoted hereinbelow:
"31A. Power to give directions.--
Notwithstanding anything contained in any
other law, but subject to the provisions of this
Act, and to any directions that the Central
Government may give in this behalf, a Board
may, in the exercise of its powers and
performance of its functions under this Act,
issue any directions in writing to any person,
officer or authority, and such person, officer or
authority shall be bound to comply with such
79
directions.
Explanation.--For the avoidance of doubts, it
is hereby declared that the power to issue
directions under this section includes the
power to direct--
(a) the closure, prohibition or regulation of any
industry, operation or process; or
(b) the stoppage or regulation of supply of
electricity, water or any other service."
- It will be clear from the aforesaid provisions of Section 33A of
the 1974 Act and Section 31A of the 1981 Act that the Goa State
Pollution Control Board had powers to issue any direction including
the power to close, prohibit or regulate mining operations or even
to stop or regulate supply of electricity, water or any other service
with a view to prevent water pollution or air pollution. Yet, from the
report of the Expert Committee as well as the reports of ISM,
Dhanbad and NEERI, it is clear that iron ore production in Goa has
led to massive negative impacts on all ecosystems leading to
enhanced air, water and soil pollution affecting quality of life across
Goa. The Goa State Pollution Control Board in its note filed in Writ
Petition (C) No.435 of 2012, however, states:
"Details of monitoring of water quality (with
regards to mining leases) from 2007 to 2012 -
The Board conducts inspections during the
monsoon and other seasons also to verify the
discharge of surface runoff/discharge from the
80
pit outside the mining lease and also collects
samples for analyzing in the Board Laboratory.
Wherever the parameters exceed the
prescribed limits necessary directions are
issued to the mining units to take remedial
measures for controlling the waste water being
discharged into the water bodies/fields without
treatment. Directions are also issued to provide
settling ponds, arrestor walls, filter beds so as to
ensure that no untreated waste water is
discharged into the water bodies/fields.
Details of monitoring of air quality (with regards
to mining leases) from 2007 to 2012 - The
Board is presently carrying out the periodic
monitoring of Air Quality in pre-selected areas
throughout the State to comply with one of the
mandates of the Central Pollution Control Board
(CPCB) under National Ambient Monitoring
Programme (NAMP) at 16 stations."
We do not agree with Mr. Arvind Datar, learned senior counsel for
the Goa State Pollution Control Board, that sincere efforts were
made by the Pollution Control Board to monitor the water quality
and air quality in the mining areas. Rather, it appears that the Goa
State Pollution Control Board, though conferred with immense
statutory powers, has failed to discharge its statutory functions and
duties. We hope that in future the Goa State Pollution Control
Board exercises strict vigil and monitors the water quality and air
quality in accordance with the provisions of the two Acts and if
necessary, exercises the powers conferred on it to close down
mining operation of a lessee, if the lessee does not conform to the
81
air emission and water discharge standards while carrying on
mining operations and does not take other preventive measures as
directed by the State Pollution Control Board.
-
Regarding the regulation by the Ministry of Environment and
Forests, in our order dated 06.01.2014 passed in I.A. Nos.1868,
2091, 2225-2227, 2380, 2568 and 2937 in Writ Petition (Civil)
No.202 of 1995 (T.N. Godavarman Thirumulpad v. Union of India
& Ors.), we have already directed Union of India to appoint a
Regulator with offices in as many States as possible under sub-
section (3) of Section 3 of the Environment (Protection) Act, 1986
as directed in the order in the case of Lafarge Umiam Mining
Private Limited. As and when the Union of India appoints a
Regulator under sub-section (3) of Section 3 of the Environment
(Protection) Act, 1986 with an office for Goa in compliance with the
aforesaid direction of this Court, the Regulator so appointed will
carry out its functions in accordance with the order passed under
sub-section (3) of Section 3 of the Environment (Protection) Act,
-
Regulatory and monitoring measures enforced by the
Departments of Mines and Geology, the Goa State Pollution
Control Board and the Regulator appointed by the Central
Government under sub-section (3) of Section 3 of the Environment
82
(Protection) Act, 1986 cannot, however, restore entirely the
environment that is damaged in course of mining operations. The
Expert Committee has, therefore, recommended that a permanent
fund for inter-generational equity and sustainability of mining for all
times to come named as "Goan Iron Ore Permanent Fund" be
created and an expert group may be constituted by the State for
working out the details of this fund. Mr. Harish Salve, learned
Amicus Curiae, submitted that as the lessees of mining leases
earn out of the sale proceeds of the iron ore excavated by them,
they should be directed to contribute 10% of the sale proceeds of
all iron ore excavated in the State of Goa and sold by them
towards the Goan Iron Ore Permanent Fund. He cited the
judgment of this Court in Samaj Parivartana Samudaya and Ors. v.
State of Karnataka and Ors. (supra) in which this Court has
similarly directed for creation of a Special Purpose Vehicle out of
10% of the sale proceeds of the ore sold by e-auction. There is a
lot of force in the aforesaid submission of Mr. Salve.
- We find from the report of the Expert Committee that the
State of Goa heavily depends on iron ore mining for revenue as
well as employment. The legislative policy behind the MMDR Act
made by Parliament is mineral development through mining. The
State Government of Goa has also adopted the executive policy to
83
encourage mining of minerals in Goa. Moreover, as Mr. Ravi
Shankar Prasad, learned senior counsel appearing for 33
Panchayats, has submitted about 1.5 lakh people are directly
employed in mining in Goa and large number of persons have
taken bank loans and purchased trucks for transportation of iron
ore. Hence, people who earn their livelihood through work in
connection with mining will be seriously affected if mining is totally
banned to protect the environment. We cannot, therefore, prohibit
mining altogether, but if mining has to continue, the lessees who
benefit the most from mining, must contribute from their sale
proceeds to the Goan Iron Ore Permanent Fund for sustainable
mining. Accordingly, in exercise of our powers under Article 32
read with Article 21 of the Constitution, we direct that henceforth
10% of the sale proceeds of iron ore excavated in the State of Goa
and sold by the lessees must be appropriated towards the Goan
Iron Ore Permanent Fund for the purpose of sustainable
development and inter-generational equity and the State of Goa in
consultation with the CEC will frame a comprehensive scheme in
this regard and submit the same to this Court within six months.
Whether in future the mining leases are to be auctioned or have to be granted in accordance with the policy of the State and the provisions of the MMDR Act and the MC Rules?
- Mr. Prashant Bhushan, learned counsel for Goa Foundation,
84
submitted that in Article 39(b) of the Constitution, it is provided that
the ownership and control of the material resources of the
community should be so distributed so as to best subserve the
common good and, therefore, the State cannot distribute the
material resource of the community in any way it likes. He
submitted that in Centre for Public Interest Litigation & Ors. v.
Union of India & Ors. [(2012) 3 SCC 1], a two-Judge Bench of this
Court has held relying on Article 39(b) of the Constitution that the
State is the legal owner of the natural resources as a trustee of the
people and although it is empowered to distribute the same, the
process of distribution must be guided by the constitutional
principles including the doctrine of equality and larger public good.
He submitted that in the aforesaid case, the two Judge Bench has
further held that a duly publicized auction conducted fairly and
impartially is perhaps the best method for discharging this burden
and methods like `first-come-first-served' when used for alienation
of natural resources/public property are likely to be misused by
unscrupulous people who are only interested in garnering
maximum financial benefit and have no respect for the
constitutional ethos and values. He relied on the conclusion of the
two Judge Bench of this Court in the aforesaid case that while
transferring or alienating the natural resources, the State is duty-
85
bound to adopt the method of auction by giving wide publicity so
that all eligible persons can participate in the process. He
submitted that as MMDR Act does not prohibit the State from
holding auction of the mining leases, this Court should direct that
in future the mining leases must be auctioned by the State
Government.
- Learned counsel for the lessees and the learned Advocate
General, on the other hand, submitted that the MMDR Act and the
MC Rules have made specific provisions regarding the manner in
which the State is to grant mining leases and it is for the State to
take decisions on grant of mining leases in accordance with the
policy and the provisions of the MMDR Act and the MC Rules.
They cited the opinion of the Constitution Bench of this Court in
Natural Resources Allocation, In Re, Special Reference No.1 of
2012 [(2012) 10 SCC 1] that auction despite being a more
preferable method of alienation/allotment of natural resources,
cannot be held to be a constitutional requirement or limitation for
alienation of all natural resources and, therefore, every method
other than auction cannot be struck down as ultra vires the
constitutional mandate.
- We are of the considered opinion that it is for the State
86
Government to decide as a matter of policy in what manner the
leases of these mineral resources would be granted, but this
decision has to be taken in accordance with the provisions of the
MMDR Act and the Rules made thereunder and in consonance
with the constitutional provisions and the decision taken by the
State of Goa to grant a mining lease in a particular manner or to a
particular party can be examined by way of judicial review by the
Court. To quote the opinion of four Judges out of five Judges
expressed by D.K. Jain J. in Natural Resources Allocation, In Re,
Special Reference No.1 of 2012 (supra):
"Alienation of natural resources is a policy
decision, and the means adopted for the same
are thus, executive prerogatives. However,
when such a policy decision is not backed by
a social or welfare purpose, and precious and
scarce natural resources are alienated for
commercial pursuits of profit maximising
private entrepreneurs, adoption of means
other than those that are competitive and
maximise revenue may be arbitrary and face
the wrath of Article 14 of the Constitution.
Hence, rather than prescribing or proscribing
a method, we believe, a judicial scrutiny of
methods of disposal of natural resources
should depend on the facts and
circumstances of each case, in consonance
with the principles which we have culled out
above. Failing which, the Court, in exercise of
power of judicial review, shall term the
executive action as arbitrary, unfair,
unreasonable and capricious due to its
antimony with Article 14 of the Constitution."
87
Whether suspension of mining operations in the State of Goa by order dated 10.09.2012 of the Government of Goa and the suspension of the Environmental Clearances granted to the mines in the State of Goa by order dated 14.09.2012 were legal and valid?
- As we have held that the deemed mining leases of the
lessees in Goa expired on 22.11.1987 and the maximum period
(20 years) of renewal of the deemed mining leases in Goa has
also expired on 22.11.2007, mining by the lessees in Goa after
22.11.2007 was illegal. Hence, the order dated 10.09.2012 of the
Government of Goa suspending mining operations in the State of
Goa and the order dated 14.09.2012 of the MoEF, Government of
India, suspending the environmental clearances granted to the
mines in the State of Goa, which have been impugned in the writ
petitions in the Bombay High Court, Goa Bench (transferred to this
Court and registered as transferred cases) cannot be quashed by
this Court. The order dated 10.09.2012 of the Government of Goa
and the order dated 14.09.2012 of the MoEF will have to continue
till decisions are taken by the State Government to grant fresh
leases and decisions are taken by the MoEF to grant fresh
environmental clearances for mining projects.
- On 05.10.2012, this Court while issuing notice in Writ Petition
88
(C) No.435 of 2012 (Goa Foundation vs. Union of India & Others)
also passed orders that all mining operations in the leases
identified in the report of the Justice Shah Commission and
transportation of iron ore and manganese ore from those leases,
whether lying at the mine-head or stockyards, shall remain
suspended. Thereafter on 11.11.2013, this Court passed an order
that the inventory of the excavated mineral ores lying in different
mines/stockyards/jetties/ports in the State of Goa made by the
Department of Mines and Geology of the Government of Goa be
verified and thereafter the whole of the inventorised mineral ores
be sold by e-auction and the sale proceeds (less taxes and royalty)
be retained in separate fixed deposits (lease-wise) by the State of
Goa till this Court delivers judgment in these matters on the legality
of the leases from which the mineral ores were extracted. In our
order passed on 11.11.2013, we had also directed that this entire
process of verification of the inventory, e-auction and deposit of
sale proceeds be monitored by a Monitoring Committee appointed
by the Court. The Monitoring Committee comprising Dr. U.V.
Singh (Additional Principal Chief Conservator of Forests,
Karnataka), Shri Shaikh Naimuddin (former Member of Central
Board of Direct Taxes) and Parimal Rai (Nominee of Govt. of Goa)
have in the meanwhile monitored the e-auction. We extract
89
hereinbelow the relevant portion of the interim report dated
12.03.2014 of the Monitoring Committee:
"After the two e-auctions, the total ore
auctioned is about 1.62 million MT and the
total value realized is 260.68 crores
approximately. As directed by this Hon'ble
Court, the State Government has been
requested to maintain separate accounts,
lease wise, and keep the sale proceeds as
fixed deposits in Nationalized Banks.
The process of transportation of ore for export
has not yet been initiated because of the
storage charges being demanded from the
successful bidder by the Marmagoa Port Trust
(MPT). As a result, the process of e-auction is
likely to slow down. The extent of storage
charges demanded is as per Annexure MC
III."
-
As we have held that renewal of all the deemed mining
leases in the State of Goa had expired on 22.11.2007, the mining
lessees will not be entitled to the sale value of the ores sold in e-
auction but they will be entitled to the approximate cost (not actual
cost) of the extraction of the ores. On account of suspension of
mining operations in the State of Goa, the workers who were
employed by the lessees claim that they have not been paid their
wages. Under Section 25C of the Industrial Disputes, Act, 1947,
when a workman whose name is borne on the muster rolls of an
industrial establishment and who has completed not less than one
90
year of continuous service under an employer is laid-off, he is
entitled to be paid by the employer for all the days which he is so
laid-off, except for such weekly holidays as may intervene,
compensation which shall be equal to 50% of the total of the basic
wages and dearness allowance that would have been payable to
him had he not been so laid-off. Following this principle of lay-off
compensation, we hold that workers who could not be paid wages
by the lessees will have to be paid compensation at the rate of
50% of their basic wages and dearness allowance during the
period of non-employment on account of suspension of mining
operations. Moreover, Marmagoa Port Trust will have to be paid
50% of their charges for storage of the mineral ores after
05.10.2012.
- The entire sale value of the stock of mineral ores sold by e-
auction less the average cost of excavation, 50% of the wages and
allowances and 50% of the storage charges to be paid to MPT is
thus due to State Government which is the owner of the mineral
ores which have been sold by e-auction. The State Government
will set-aside 10% of this balance amount for the Goan Iron Ore
Permanent Fund for the purpose of sustainable development and
inter-generational equity. This entire exercise of calculating the
average cost of extraction of ores to be paid to the mining lessees,
91
50% of the basic wages and dearness allowance to be paid to the
workers, 10% of the balance amount towards the Goan Iron Ore
Permanent Fund and the balance amount to be appropriated by
the State Government will be done by the Director of Mines and
Geology, Government of Goa, under the supervision of the
Monitoring Committee. Till this exercise is over and the report of
the Monitoring Committee is filed, the Monitoring Committee will
continue and their members will be paid their remuneration
allowances as directed in the order dated 11.11.2013.
-
In the result, we declare that:
(i) the deemed mining leases of the lessees in Goa expired on 22.11.1987 and the maximum of 20 years renewal period of the deemed mining leases in Goa expired on 22.11.2007 and consequently mining by the lessees after 22.11.2007 was illegal and hence the impugned order dated 10.09.2012 of Government of Goa and the impugned order dated 14.09.2012 of the MoEF, Government of India are not liable to be quashed;
(ii) dumping of minerals outside the leased area of the mining lessees is not permissible under the MMDR Act and the Rules made thereunder;
(iii) until the order dated 04.08.2006 of this Court is modified by this Court in I.A. No.1000 in T.N. Godavarman
92
Thirumulpad v. Union of India & Ors., there can be no mining
activities within one kilometer from the boundaries of
National Parks and Sanctuaries in Goa;
(iv) by the order dated 04.12.2006 in Writ Petition (C) No.460
of 2004 (Goa Foundation v. Union of India), this Court has
not prohibited mining activities within 10 kilometers distance
from the boundaries of the National Parks or Wildlife
Sanctuaries;
(v) it is for the State Government to decide as a matter of
policy in what manner mining leases are to be granted in
future but the constitutionality or legality of the decision of the
State Government can be examined by the Court in exercise
of its power of judicial review.
And we direct that:
(i) MoEF will issue the notification of eco-sensitive zones
around the National Park and Wildlife Sanctuaries of Goa
after following the procedure discussed in this judgment
within a period of six months from today;
(ii) the State Government will initiate action against those
mining lessees who violate Rules 37 and 38 of the MC
Rules;
(iii) the State Government will strictly enforce the Goa
(Prevention of Illegal Mining, Storage and Transportation of
Minerals) Rules, 2013;
(iv) the State Government may grant mining leases of iron
ore and other ores in Goa in accordance with its policy
decision and in accordance with MMDR Act and the Rules
93
made thereunder in consonance with the constitutional provisions;
(v) until the final report is submitted by the Expert Committee, the State Government will, in the interests of sustainable development and intergenerational equity, permit a maximum annual excavation of 20 million MT from the mining leases in the State of Goa other than from dumps;
(vi) the Goa Pollution Control Board will strictly monitor the air and water pollution in the mining areas and exercise powers available to it under the 1974 Act and 1981 Act including the powers under Section 33A of the 1974 Act and Section 31A of the 1981 Act and furnish all relevant data to the Expert Committee;
(vii) the entire sale value of the e-auction of the inventorised ores will be forthwith realised and out of the total sale value, the Director of Mines and Geology, Government of Goa, under the supervision of the Monitoring Committee will make the following payments:
(a) Average cost of excavation of iron ores to
the mining lessees;
(b) 50% of the wages and dearness allowance
to the workers in the muster rolls of the mining
leases who have not been paid their wages
during the period of suspension of mining
operations;
(c) 50% of the claim towards storage charges
of MPT.
94
Out of the balance, 10% will be appropriated towards the
Goan Iron Ore Permanent Fund and the remaining amount
will be appropriated by the State Government as the owner
of the ores;
(viii) the Monitoring Committee will submit its final report on
the utilization and appropriation of the sale proceeds of the
inventorised ores in the manner directed in this judgment
within six months from today;
(ix) henceforth, the mining lessees of iron ore will have to
pay 10% of the sale price of the iron ore sold by them to the
Goan Iron Ore Permanent Fund.
(x) the State Government will within six months from today
frame a comprehensive scheme with regard to the Goan Iron
Ore Permanent Fund in consultation with the CEC for
sustainable development and intergenerational equity and
submit the same to this Court within six months from today;
and
(xi) the Expert Committee will submit its report within six
months from today on how the mining dumps in the State of
Goa should be dealt with and will submit its final report within
twelve months from today on the cap to be put on the annual
excavation of iron ore in Goa.
- With the aforesaid declarations and directions, Writ Petition
(C) No.435 of 2012 is allowed. The Transferred Cases and IA filed
by MPT as well as other IAs also stand disposed of. The interim
order dated 05.10.2012 of this Court is vacated. These matters
95
will be listed as and when the Monitoring Committee and the
Expert Committee submit their final reports and the State
Government submits the scheme for the Goan Iron Ore Permanent
Fund. The parties shall bear their own costs.
.................................................J. (A. K. Patnaik)
.................................................J. (Surinder Singh Nijjar)
..................................................J. (Fakkir Mohamed Ibrahim Kalifulla)
New Delhi, April 21, 2014.
96
ITEM NO.1A COURT NO.5 SECTION PIL
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
WRIT PETITION (CIVIL) NO(s). 435 OF 2012
GOA FOUNDATION ... Petitioner(s) VERSUS UNION OF INDIA & ORS. ... Respondent(s)
WITH T.C.(C) NO. 131 of 2013
T.C.(C) NO. 132 of 2013
T.C.(C) NO. 133 of 2013
T.C.(C) NO. 134 of 2013
T.C.(C) NO. 135 of 2013
T.C.(C) NO. 138 of 2013
T.C.(C) NO. 139 of 2013
T.C.(C) NO. 140 of 2013
T.C.(C) NO. 141 of 2013
T.C.(C) NO. 142 of 2013
T.C.(C) NO. 143 of 2013
W.P(C) NO. 184 of 2013
W.P(C) NO. 99 of 2013
T.C.(C) NO. 136 of 2013
Date: 21/04/2014 These Petitions were called on for pronouncement of judgment today.
For Parties Mr. Prashant Bhushan, Adv.
Mr. Amit Sharma, Adv.
Mr. Yashraj Singh Deora, Adv.
M/S. K.J. John & Co., Advs.
Mr. Harish Pandey, Adv.
Mr. P. S. Sudheer, Adv.
97
M/S Mitter & Mitter Co., Advs. Mr. A.Venayagam Balan, Adv. Mr. Abhijat P. Medh, Adv. Mr. P.V. Yogeswaran, Adv. Mr. Amit Sharma, Adv. Ms. Jyoti Mendiratta, Adv. Ms. Madhu Sikri, Adv. Dr. (Mrs.) Vipin Gupta, Adv.
Mr. Ninad Laud, Adv. Ms. Aparna Singhal, Adv. Mr. Mahesh Agarwal, Adv. Mr. E.C. Agrawala, Adv.
Mrs. Sudha Gupta, Adv. M/S. Parekh & Co., Advs.
Mr. Shadman Ali, Adv. Mr. D.S. Mahra, Adv.
Mr. Yashraj Singh Deora, Adv. Mr. Mohan Pandey, Adv. Mr. Shreekant N. Terdal, Adv. M/S. J.S. Wad & Co., Advs.
Mr. Mukul Rohatgi, Sr. Adv. Mr. Ninad Laud, Adv. Mr. Abhijit Gosavi, Adv. Mr. Jayant Mohan, Adv.
Mr. Harish Pandey, Adv. M/S. K.J. John & Co., Advs. Mr. Chander Shekhar Ashri, Adv. Mr. Mohit Abraham, Adv. Mr. Shiv Kumar Suri, Adv. Mr. P.S.Sudheer, Adv. Mr. T. Mahipal, Adv. Mr. Parijat Sinha, Adv.
Mr. S. M. Walawaikar, Adv. Mr. Rameshwar Prasad Goyal, Adv.
Mr. M.P. Jha, Adv.
Mr. ANS Nadkarni, AG. Mr. Siddharth Bhatnagar, Adv. Mr. Datta Prasad Lawande, GA. Mr. Nikhil D. Pai, AGA. Ms. Neha Umesh Kholkar, AGA.
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Mr. T. Mahipal, Adv.
Ms. A. Subhashini, Adv.
Mr. Suryanarayana Singh, Addl.AG.
Mr. Bhavanishankar V. Gadnis, Adv.
Mr. A. Venayagam Balan, Adv.
Hon'ble Mr. Justice A. K. Patnaik pronounced
the judgment of the Bench comprising His Lordship, Hon'ble Mr. Justice Surinder Singh Nijjar and Hon'ble Mr. Justice Fakkir Mohamed Ibrahim Kalifulla. Writ Petition (C) No.435 of 2012 is allowed and the Transferred Cases and IA filed by MPT as well as other IAs also stand disposed of in terms of the signed reportable judgment. The interim order dated 05.10.2012 of this Court is vacated. These matters will be listed as and when the Monitoring Committee and the Expert Committee submit their final reports and the State Government submits the scheme for the Goan Iron Ore Permanent Fund. The parties shall bear their own costs.
[Nidhi Ahuja] [Sharda Kapoor]
Court Master Court Master
[The signed reportable judgment is placed on the file.]
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