TMI Blog2015 (8) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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 subsection (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. If Rule 64C of the MC Rules suggests that tailings or rejects can be dumped outside the leased area, it must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctuary. - The 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. - submissions of 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen a workman whose name is borne on the muster rolls of an industrial establishment and who has completed not less than one 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. 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, 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 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. 3. 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; (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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 7. 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 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 Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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]. 10. 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 pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, 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: 12. 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. 13. The CEC in its repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 15. 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 4. (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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 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 St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7, 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. 20. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 23. 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 of the Aboli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 nonsaleable 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 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. 28. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 29. 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 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 gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leased area. 32. 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 and waste material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. 37. Learned counsel for the lessees, on the other hand, stated 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said area under Forest nearly 62% 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. 39. Mr. Mohan Parasaran, learned Solicitor General, submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Goa. 41. 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 43. 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 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 bou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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 Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rotection) Rules, 1986 includes giving notice of the 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng lessees in the State of Goa: 47. 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 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. 48. 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 upto- 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; 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 Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itle 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 Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the Indian Bureau of Mines, which is extracted hereinbelow: Year Goan Iron Ore Exports Total Production (In Lakh MT) 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. 52. 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 miner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quate 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 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 futu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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. 57. 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 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Costi to Sanvordem 1.51 Collem Collem to Amona Jetty 1.94 2.76 Shigao to Sanvordem 0.82 Tollem Tollem to Shelvona Jetty 1.71 1.71 Maina-Sulcorna Sulcorna to Shelvona Jetty 1.02 2.06 Maina to Shelvona 1.04 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 60. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining operation of a lessee, if the lessee does not conform to the 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. 61. 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, 1986. 62. Regulatory and monitoring measures enforced by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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? 64. Mr. Prashant Bhushan, learned counsel for Goa Foundation, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 eauction. We extract 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. 69. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 11.11.2013. 71. 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 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it 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. 70. 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 will be listed as and when the Monitori ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
