TMI Blog2013 (4) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... t and the boundaries of each of the leases determined on that basis. We further direct that in supersession of all orders either of the authorities of the State or Courts, as may be, the boundaries of leases fixed by the Joint Team will henceforth be the boundaries of each of the leases who will have the benefit of the lease area as determined by the Joint Team. All proceedings pending in any court with regard to boundaries of the leases involved in the present proceeding shall stand adjudicated by means of present order and no such question would be open for re-examination by any body or authority. Whether categorization on the basis of percentage of the encroached area qua the total lease area is an arbitrary decision - Arbitrariness in the adoption of a criteria for classification has to be tested on the anvil of Article 14 and not on the subjective notions of availability of a better basis of classification. The basis suggested i.e. total encroached area has the potential of raising questions similar to the ones now raised on behalf of the lease holders. The only caveat in this regard is in respect of category 'C' mines. The Federation had suggested that the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficult for this Court to visualize as to how the Category 'C' mines can be allowed to reopen. There is no room for compassion; fervent pleas for clemency cannot have even a persuasive value. As against the individual interest of the Category 'C' lease holders, public interest at large would require the Court to lean in favour of demonstrating the efficacy and effectiveness of the long arm of the law. We, therefore, order for the complete closure of the Category 'C' mines and for necessary follow up action in terms of the recommendations of the CEC in this regard, details of which have already been extracted in an earlier part of this order. In so far as settlement of the inter-state boundaries between the States of Andhra Pradesh and Karnataka is concerned, both the States have agreed to have the boundaries fixed under the supervision of the Geological Survey of India. In view of the agreement between the States on the said issue we permit the States to finalize the issue in the above terms. The operation of the 7 leases (Category B1) located on or near the inter-State boundary is presently suspended. Until the boundary issue between the two States ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Monitoring Committee in the said order dated 13.4.2012 is also reiterated. (4) The order of the Court dated 3.9.2012 in respect of reopening of 18 Category A mines subject to the conditions mentioned in the said order is reiterated. (5) The order of the Court dated 28.9.2012 in all respects is reiterated. (6) The recommendations of the CEC contained in the Report dated 15.2.2013 for reopening of remaining Category A mines and Category B mines (63 in number) and sale of sub-grade iron ore subject to the conditions mentioned in the said Report are approved. (7) The recommendations contained in paragraphs VI and VII (Pg. 56 to 57) of the CEC Report dated 3.2.2012 are accepted, meaning thereby, the leases in respect of C Category mines will stand cancelled and the recommendations of the CEC (para VII Pg. 56) of Report dated 3.2.2012 with regard to the grant of fresh leases are accepted. (8) The proceeds of the sales of the Iron Ore of the 'C' Category mines made through the Monitoring Committee will stand forfeited to the State. The Monitoring Committee will remit the amounts held by it on this account to the SPV for utilization in connection with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in P. Raval, P.P. Malhotra, Advs., Amarjit Singh Chandhiok, ASG, Shyam Divan (A.C.), Adv. (Assisted by Vasuman Khandelwal), Adv., Arvind Datar, C. Aryama Sundaram, V. Giri, D.L.N. Rao, Dushyant Dave, Fali Sam Nariman, Chander Uday Singh, Nalini Chidambaram, C.S. Vaidyanathan, K.K. Venugopal, P. Vishwanatha Shetty, Pallav Shishodia, Guru Krishnakumar, Krishnan Venugopal, Raju Ramachandran, S. Ganesh, S.P. Singh, Jaideep Gupta, P.H. Parekh, Sr. Advs., Nirman Sharma, Abhinav Malhotra, A.D.N. Rao, Advs. Assisted by Mansha Monga), Adv., Neelam Jain, A. Venkatesh, Siddhartha Chowdhury, Prashant Bhushan, Ramesh Kumar Mishra, Pranav Sachdeva (A.C.), K. Raghavacharyulu, D. Julius Riamei, Sanjeev Kapoor, Rajat Jariwal, Advs. for Khaitan and Co., Vikas Mehta, Ravi Shankar, Shubham Tripathi, P.V. Dinesh, S. Udaya Kumar Sagar, Bina Madhavan, Anindita Pujari, Advs. for Lawyer's Knit and Co., Devadatt Kamat, Sunil Dogra, Advs. for Lawyer's Knit and Co., Simar Suri, Chanchal Kumar Ganguli, K. Maruthi Rao, K. Radha, Anjani Aiyagari, K. Dheeraj Kumar, K. Subba Rao, G. Umapathy, R. Mekhala, Rakesh K. Sharma, Kiran Suri, K.N. Phanindra, S.J. Amith, Aparna Mattoo, Girish Ananthamurthy, Vaijayan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court's intervention in the matter and specifically praying for the reliefs noted hereinbelow. (A) To issue a Writ of mandamus or any other appropriate writ, order or direction, directing immediate steps be initiated by both the Respondent States and the Union of India to stop all mining and other related activities in forest areas of Andhra Pradesh and Karnataka which are in violation of the orders of this Hon'ble Court dated 12.12.1996 in W.P. (C) No. 202 of 1995 and the Forest (Conservation) Act, 1980. (B) To issue a Writ of mandamus or any other appropriate writ, order or direction, directing as null and void retrospectively all 'raising contracts' / sub leasing because which are in violation of the Mines and Minerals (Development and Regulation) Act, 1957 and initiate penal action against the violators. (C) To issue a Writ of mandamus or any other appropriate writ, order or direction, directing the stoppage of all mining along the border and in forest areas in the Bellary Reserve Forest till a systematic survey of both the interstate border and the mine lease areas along the entire border is completed by the Survey of India along with a representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court by order dated 6.5.2011 to determine the boundaries of initially 117 mining leases which number was subsequently extended to 166 by inclusion of the mines in Tumkur and Chitradurga districts. The result of the survey by the Joint Team revealed a shocking state of depredation of nature's bounty by human greed. Objections of the lease holders to the survey came early and were subjected to a re-examination by the special team itself under orders of the Court dated 23.9.2011 in the course of which 122 cases were re-examined and necessary corrections were effected in 33 cases. Thereafter, the CEC submitted its Report termed as the Final Report dated 3.2.2012 which is significant for two of its recommendations. The first was for categorization of the mines into three categories, i.e., 'A', 'B' and 'C' on the basis of the extent of encroachment in respect of the mining pits and over burden dumps determined in terms of percentage qua the total lease area. The second set of recommendations pertained to the conditions subject to which reopening of the mines and resumption of mining operations were to be considered by the Court. A set of modified recommenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isiddeshwar Enterprises (ML No. 80) and M/s. Vibhutigudda Mines (Pvt.) Ltd. (ML No. 2469) have been assigned in Category-B . The numbers of such leases in Category-B comes to 72. 30. The Category-C comprises of leases wherein (i) the illegal mining by way of (a) mining pits outside the sanctioned lease area have been found to be more than 10% of the lease area and/or (b) over burden/waste dumps outside the sanctioned lease areas have been found to be more than 15% of the lease areas and/or (ii) the leases found to be involved in flagrant violation of the Forest (Conservation) Act and/or found to be involved in illegal mining in other lease areas. The number of such leases comes to 49. RECOMMENDATIONS (as modified by CEC by its Report dated 13.3.2012. Items 1 to IV of the Report dated 3.2.2012 stood replaced by Items A to I of the Report dated 13.3.2012 which are reproduced below along with Items v. to XIV of the initial Report dated 3.2.2012). (A) the findings of the Joint Team and as modified after careful examination by the CEC may be accepted and directed to be followed by the concerned authorities and the respective leases, notwithstanding anything to the contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) to monitor the implementation of the various provisions/prescriptions of the R R Plans, (b) to ensure strict compliance of the conditions on which the environment clearance, the approval under the Forest (Conservation) Act, 1980 and the other statutory approvals/clearances have been accorded, (c) to ensure that the mining is undertaken as per the approved Mining Plan, (d) to ensure that the ceiling on annual production fixed for the lease does not exceed, (e) to ensure that the safety zone is maintained around the lease area and in respect of the clusters of mining leases around the outer boundary of such cluster of mining leases and (f) to ensure compliance of the other applicable condition/provisions. Any lease found to be operating in violation of the stipulated conditions/provisions should be liable for closure and/or termination of the lease; (H) the present Members of the Monitoring Committee should continue for a period of next two years; and (I) in the larger public interest the mining operations in the two leases of M/s. NMDC may be permitted to be continued. However, it will be liable to deposit penalty/compensation as payable for the mining leases falling in Cat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oring Committee for being transferred to the SPV d) The balance amount, if any, may be allowed to be disbursed to the respective lessees. (VI) In respect of the mining leases falling in CATEGORY-C (details are given at annexure-R-11 to this Report) it is recommended that (a) such leases should be directed to be cancelled/determined on account of these leases having been found to be involved in substantial illegal mining outside the sanctioned lease areas (b) the entire sale proceeds of the existing stock of the iron ore of these leases should be retained by the Monitoring Committee and (c) the implementation of the R R Plan should be at the cost of the lessee; (VII) the area of the mining leases falling in the Category-C , after cancellation of the mining leases may be directed to be allotted/assigned through a transparent process of bidding to the highest bidder (s) from amongst the end users. The floor price for this purpose should be fixed on the basis of the market value of the permissible annual production of the iron ore during the period of the agreements/lease period. The iron ore produced from such mines should be used for captive use only and no sale/export wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined for being transferred to the SPV, the balance amount, if any, may be reimbursed to the respective lessees; (XI) no new mining leases, including for which Notifications have already been issued, will be granted without obtaining permission of this Hon'ble Court; (XII) the pending applications for grant of mining leases in Ramgad and Swamimalai Block in District Bellary and for which the NOC's were earlier issued will stand rejected; (XIII) the confiscated iron ore pertaining to the cancelled stock yards will be sold by the Monitoring Committee and the sale proceeds will be retained by the Monitoring Committee; (XIII) the Monitoring Committee may be authorized to sell low grade/sub grade iron ore to Cement Plants, Red Oxide and other similarly placed industries. It may also be authorized to supply iron ore required for construction of nuclear plants at the rates mutually agreed between the Monitoring Committee and the concerned authorities provided no middle man is involved; and (XIV) the Monitoring Committee may be authorized to utilize up to 25% of the interest received by it for engaging reputed agencies for the monitoring of the various parameters rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction; and (v) regular and effective monitoring and evaluation. xxx VI. PROVISIONS/PRESCRIPTIONS of THE LEASE WISE R R PLANS 14. The leasewise R R Plans will provide for the specific provisions/prescriptions as dealt with hereunder: (A) REGARDING AREA FOUND BY THE JOINT TEAM TO BE UNDER ILLEGAL MINING 15. The area under illegal mining pits should be filled up with the existing over burden/waste dumps preferably the illegal dumps. Appropriate soil and moisture conservation measures will be provided and such areas will be afforested with indigenous species. 16. The reclamation and rehabilitation works will be carried out even if such areas are found to be having mineral reserves. 17. In respect of area under illegal over burden/waste dumps, wherever environmentally feasible the over burden/waste dumps will be removed and disposed of scientifically within the lease area of the encroacher. 18. In other cases, the illegal over burden/waste dumps will be stabilized by: (a) modifying the gradient of the lump (b) construction of retaining walls, (c) construction of gully plugs (d) construction of garland drains (e) geo-metric/geo-matting of dumps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NG PITS 25. In respect of the mining leases where the shape and design of the mining pits differ substantially from those provided in the approved mining plan and /or found to be in gross violation of the approved design, mining will be permissible based on rectification as required by the concerned statutory authority (viz. DGMS). Similarly, gross violations under other Acts/Rules, if any, will need to be rectified (as required by the relevant statutory authorities). (E) SOIL and MOISTURE CONSERVATIONS, AFFORESTATION and OTHER MEASURES 26. The R R plan would inter alia provide for: (i) broad design/specification for (a) garland drains (b) retaining walls (c) check dams (d) gully plugs and/or culverts (if required) (e) geo textile/geo matting of dumps (f) afforestation in the safety zones (g) afforestation in peripheral area, road side, over burden dumps and other areas (ii) dust suppression measures at/for loading, unloading and transfer points, internal roads, mineral stacks etc. (iii) covered conveyor belts (if feasible) - such as down hill conveyor, pipe conveyor etc. (iv) specification of internal roads, (v) details of existing tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leaseholders would also be required to be specifically noticed at this stage. I. Compensatory Payment (a) Each of the leaseholders must pay compensation for the areas under illegal mining pits outside the sanctioned area, as found by the Joint Team (and as finally held by the CEC) at the rate of ₹ 5 crores per hectare, and (b) for the areas under illegal overburden dumps, roads, offices, etc. outside the sanctioned lease area, as found by the Joint Team (as might have been finally held by the CEC) at the rate of ₹ 1 crore per hectare. It is made clear that the payment at the rates aforesaid is the minimum payment and each leaseholder may be liable to pay additional amounts on the basis of the final determination of the national loss caused by the illegal mining and the illegal use of the land for overburden dumps, roads, offices, etc. Each leaseholder, besides making payment as directed above, must also give an undertaking to the CEC for payment of the additional amounts, if held liable on the basis of the final determination. At the same time, we direct for the constitution of a Committee to determine the amount of compensatory payment to be made by each o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Committee is holding the sale proceeds of the iron ores of the leaseholders, including the 63 leaseholds being the subject of this order. In case, the money held by the CEC/Monitoring Committee on the account of any leaseholder is sufficient to cover the payments under the aforesaid three heads, the leaseholder may, in writing, authorize the CEC to deduct from the sale proceeds on its account the amounts under the aforesaid three heads and an undertaking to make payment of any additional amount as compensatory payment. On submission of such authorization and undertaking, the CEC shall retain the amounts covering the aforesaid three heads and pay to the concerned leaseholder the balance amount, if any. It is expected that the balance amount, after making the adjustments as indicated here, would be paid to the concerned leaseholder within one month from the date of submission of the authorization and the undertaking. In the case of any leaseholder, if the money held on his account is not sufficient to cover the aforesaid three heads, he must pay the deficit within two months from today. IV. The R R plans for the aforesaid 63 'Category B' mines may be prepared as early ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompensatory amounts, if held liable, guarantee money for implementation of the R R Plans and deposit of 15% of the sale proceeds of the existing iron ore sold by the Monitoring Committee; and (b) Before starting the mining operations the implementation of the R R Plans for the areas found under illegal mining pits, illegal over burden dumps, etc. will be completed/nearing completion to the satisfaction of the Monitoring in the existing over burden dumps in and around the lease areas subject to the condition that such removal and sale is not likely to have significant adverse impact on the existing tree growth/vegetation and/or stability of the over burden dumps. The Monitoring Committee may be authorized to retain the entire sale proceeds in respect of the dumps located outside the sanctioned and presently valid lease areas for the purpose of transfer to the SPV for the implementation of the Comprehensive Environment Plan for Mining Impact Zone (CEPMIZ). Thus the CEC in its Report dated 15.2.2013 had recommended resumption of mining operations in the remaining category 'A' mines subject to the conditions already imposed by this Court in its order dated 3.9.2012 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be required to be considered by us. It would also be convenient to take note of the fact that as per the CEC's Report dated 15.2.2013 sale of almost the entire quantity of illegally extracted Iron Ore has been effected through the Monitoring Committee and the sub-grade Iron Ore lying in dumps in and around several lease areas may not have adequate commercial potential. Besides removal thereof for sale, in many cases, may also give rise to environmental problems in as much as removal of such dumps may constitute a hazard to the stability of the dumps which have been in existence for many years. Permission for sale of sub-grade iron ore, only when the same is commercially viable and removal thereof from the dumps is an environmentally safe exercise, has been sought by the CEC in its last Report dated 15.2.2013. We do not find any impediment in accepting the recommendations of the CEC in the Report dated 15.2.2013 in respect of removal and sale of sub-grade Iron Ore. Similarly, we do not find any difficulty in continuing our previous orders permitting sale of iron ore to be mined after resumption of operations through the Monitoring Committee on the same terms and condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f committing a larger encroachment, may still fall below the percentage adopted as the parameter so as to place him in a more favourable category, say Category 'B', as compared to a small lease where the area encroached, though small, falls in a less favourable category, say C because the percentage of encroachment exceeds the prescribed parameters. The recommendation of the CEC with regard to categorization and the actions proposed on that basis as well as the suggested parameters for drawing up the R R plans and the preconditions to be fulfilled by Category 'A' and 'B' leaseholders for recommencement of mining operations has also been assailed by questioning the credibility of the CEC as an institution and the prolonged continuance of its members which, according to the leaseholders, have the tendency of effectuating unbridled powers. 18. Relying on the provisions of the Mines and Minerals (Development Regulation) Act, 1957; Forest (Conservation) Act, 1980 and Environment (Protection) Act, 1986 (hereinafter referred to as MMDR Act , FC Act and EP Act respectively) it is argued that each of the statutes contemplate a distinct and definite statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otified indicating its composition together with the extent of its powers and duties. It transpires from the Court's order dated 7.9.2007 that an issue with regard to the correctness of the extent of empowerment of the said body made by Notification dated 17.9.2002 was raised on behalf of the Union of India, whereafter, on the suggestions of the Attorney General for India, this Court by its order dated 14.12.2007 had determined the extent of powers of the CEC in the following terms: 1. In supersession of all the previous orders regarding constitutions and functioning of the Central Empowered Committee (hereinafter called the Empowered Committee ) is constituted for the purpose of monitoring and ensuring compliance with the orders of this Court covering the subject matter of forest and wild life and related issues arising out of the said orders. 2. The Committee shall exercise the following powers and perform the following functions: (i) to monitor the implementation of this Court's orders and place reports of non-compliance before the Court and Central Government for appropriate action. (ii) to examine pending Interlocutary Applications in the said Writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court by order dated 14.12.2007. Needless to say, acceptance of the recommendations made by the CEC on the basis of which orders of the Court are formulated is upon the satisfaction of the Court. We, therefore, close the issue by holding the contentions made to be wholly untenable. ISSUE No. 2 Exercise of jurisdiction under Article 32 /142 of the Constitution on the basis of the facts revealed by Reports of the CEC i.e. large scale damage to the forest wealth of the country due to illegal mining on an unprecedented scale vis- -vis resort to remedies under the provisions of Mines and Minerals (Development and Regulation) Act, 1957, Forest (Conservation) Act, 1980 and Environment (Protection) Act, 1986 24. On the above issue the short and precise argument on behalf of the leaseholders is that the provisions of each of the statutory enactments, i.e., the MMDR Act, FC Act and EP Act prescribe a distinct statutory scheme for Regulation of mining activities and the corrective as well as punitive steps that may be taken in the event mining activities are carried out in a manner contrary to the terms of the lease or the provisions of any of the statutes, as may be. The argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 (i.e., within a period of four months) 35.319 lakh MT of illegal Iron Ore was received at Belekeri and Karwar ports, for movement of which for a period of about 4 months 2986 trucks were required to undertake the journey every day in both directions i.e., to the ports and thereafter back. 26. According to Shri Divan, the present is a case of mass tort resulting in the abridgment of the fundamental rights of a large number of citizens for enforcement of which the writ petition has been filed under Article 32. Shri Divan has submitted, by relying on several decisions of this Court, that in a situation where the Court is called upon to enforce the fundamental rights and that too of an indeterminate number of citizens there can be no limitations on the power of Court. It is the satisfaction of the Court that alone would be material. Once such satisfaction is reached, the Court will be free to devise its own procedure and issue whatever directions are considered necessary to effectuate the Fundamental Rights. The only restriction that the Court will bear in mind is that its orders or directions will not be in conflict with the provisions of any Statute. However, if the statute does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution which is in the following terms: 32. Remedies for enforcement of rights conferred by this Part. (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme Court by Clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under Clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. 29. The issue before the Court was one of release/freedom of an indeterminate number of citizens from bonded labour and was taken up by the Court by registering a letter addressed to a Hon'ble Judge of this Court to the above effect as a writ petition under Article 32. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the amplest power to issue whatever direction, order or writ may be appropriate in a given case for enforcement of a fundamental right. But what procedure shall be followed by the Supreme Court in exercising the power to issue such direction, order or writ? That is a matter on which the Constitution is silent and advisedly so, because the Constitution-makers never intended to fetter the discretion of the Supreme Court to evolve a procedure appropriate in the circumstances of a given case for the purpose of enabling it to exercise its power of enforcing a fundamental right. Neither Clause (2) of Article 32 nor any other provision of the Constitution requires that any particular procedure shall be followed by the Supreme Court in exercising its power to issue an appropriate direction, order or writ. The purpose for which the power to issue an appropriate direction, order or writ is conferred on the Supreme Court is to secure enforcement of a fundamental right and obviously therefore, whatever procedure is necessary for fulfilment of that purpose must be permissible to the Supreme Court. This Court also found that it would be justified to depart, in a proceeding under Article 32, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sider the report of the Commissioner and the affidavits which may have been filed and proceed to adjudicate upon the issue arising in the writ petition. It would be entirely for the Court to consider what weight to attach to the facts and data stated in the report of the Commissioner and to what extent to act upon such facts and data. 30. In M.C. Mehta v. Union of India and Ors. (1987) 1 SCC 395, this Court not only reiterated the view adopted in Bandhua Mukti Morcha (supra) but also held that the power under Article 32 would be both injunctive as well as remedial and the power to grant remedial relief, naturally, would extend to a wide range of situations and cannot be put in a straight jacket formula. 31. M.C. Mehta v. Union of India and Ors. (2009) 6 SCC 142 is a case which would disclose a very proximate connection with the case in hand. In the aforesaid case this Court was called upon to answer the question as to whether in view of the provisions of Section 4A of the MMDR Act (noticed earlier) it would be appropriate to exercise the power under Article 32 read with Article 142 in order to suspend mining operations in the Aravali Hills. The said question was required to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted, requisite clearances for carrying out mining operations were not obtained which have resulted in land and environmental degradation. Despite such breaches, approvals had been granted for subsequent slots because in the past the authorities have not taken into account the macro effect of such wide-scale land and environmental degradation caused by the absence of remedial measures (including rehabilitation plan). Time has now come, therefore, to suspend mining in the above area till statutory provisions for restoration and reclamation are duly complied with, particularly in cases where pits/quarries have been left abandoned. 45. Environment and ecology are national assets. They are subject to intergenerational equity. Time has now come to suspend all mining in the above area on sustainable development principle which is part of Articles 21, 48-A and 51-A(g) of the Constitution of India. In fact, these articles have been extensively discussed in the judgment in [M.C. Mehta case (2004) 12 SCC 118] which keeps the option of imposing a ban in future open. The issue is not one of application of the above principles to a case of cancellation as distinguished from one of suspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 33. Even if the above observations is understood to be laying down a note of caution, the same would be a qualified one and can have no application in a case of mass tort as has been occasioned in the present case. The mechanism provided by any of the Statutes in question would neither be effective nor efficacious to deal with the extraordinary situation that has arisen on account of the large scale illegalities committed in the operation of the mines in question resulting in grave and irreparable loss to the forest wealth of the country besides the colossal loss caused to the national exchequer. The situation being extraordinary the remedy, indeed, must also be extraordinary. Considered against the backdrop of the Statutory schemes in question, we do not see how any of the recommendations of the CEC, if accepted, would come into conflict with any law enacted by the legislature. It is only in the above situation that the Court may consider the necessity of placing the recommendations made by the CEC on a finer balancing scale before accepting the same. We, therefore, feel uninhibited to proceed to exercise our constitutional jurisdiction to remedy the enormous wrong that has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by as many as 66 lease holders. The findings of the Joint Team in respect of 4 leases were modified by the CEC though the said modification did not result into any change of categorization. Two representations, one filed by M/s. V.S. Lad Sons and another by M/s. Hothur Traders have been placed before the Court for appropriate orders [issue is being dealt with separately] whereas the rest of the representations were rejected by the CEC. In the above facts, procedural fairness in the process of survey carried out by the Joint Team is writ large and there can be no room for any doubt so as to question the sanctity of the survey process on the above stated ground. 35. This will require the Court to go into the details of the technical aspect of the survey which was conducted by the Joint Team. The consideration of the details of the survey undertaken, naturally, has to be in the backdrop of the multifold complaints that have been raised on behalf of the leaseholders in the several IAs filed. As already noted, on a very broad plane, the complaints in this regard are that the Joint Team has ignored judicial orders passed in respect of boundaries between neighbouring/adjacent leases; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary points were measured and recorded in the instrument which uses an infra-red ray. The instrument was shifted to another temporary control point and in a similar manner the distance between the said control point and remaining boundary points were measured. After completing the reading of all the points the margin of error for the instrument was determined (which was virtually negligible). Thereafter the data from the total station was downloaded on a computer using the autocad software for preparation of the survey sketch. The survey sketch so prepared was superimposed on the digitized lease sketch to ascertain the encroachment if any. Also, the details of the survey sketch was superimposed on the satellite imageries to further verify the correctness of the process of survey undertaken. A manual calculation of the lease areas was also undertaken to compare with the calculation of the lease areas as per the digitized lease sketch. The difference between the two measurements in case of 34 number of 'C' category leases is less than +/- 05ha. The relevant details in this regard which are available in the compilation of documents submitted by the State of Karnataka would be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he survey conducted by the Joint Team constituted by the orders of this Court and the boundaries of each of the leases determined on that basis. We further direct that in supersession of all orders either of the authorities of the State or Courts, as may be, the boundaries of leases fixed by the Joint Team will henceforth be the boundaries of each of the leases who will have the benefit of the lease area as determined by the Joint Team. All proceedings pending in any court with regard to boundaries of the leases involved in the present proceeding shall stand adjudicated by means of present order and no such question would be open for re-examination by any body or authority. 40. Before proceeding to the next issue we would like to observe that the contention urged on behalf of some of the lessees that dumping of mining waste (overburden dumps) do not constitute operations under Section 2(d) of the MMDR Act is too naive for acceptance. The wide terms of the definition contained in Section 2(d) of the MMDR Act encompasses all such activity within the meaning of expression mining operations . Use of forest land for such activity would require clearance under the FC Act. In case the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be a 'better' basis for the categorization for that would introduce subjectivity in the process; the test is whether categorization on the basis adopted results in hostile discrimination and adoption of the criteria of percentage has no reasonable nexus with the object sought to be achieved, namely, to identify the lessees who have committed the maximum violations and damage to environment. Viewed from the aforesaid perspective, the categorization made does not fail the test of reasonableness and would commend for our acceptance. In this regard, we may take note of two IAs (IA. No. 74 of 2012 and I.A. No. 4 of 2012) filed by Federation of Indian Mineral Industries which body claims membership of a vast number of the lessees involved in the present proceedings. In the aforesaid IAs, as already noticed in a different context, the Federation has unequivocally accepted the findings of the survey conducted by the Joint Team and the recommendation of the CEC in so far as categorization of the leases and the actions suggested for reopening of Category 'A' and 'B' mines along with other pre-conditions stipulated including the preparation of the R R plans. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not require any repetition. Illegal mining apart from playing havoc on the national economy had, in fact, cast an ominous cloud on the credibility of the system of governance by laws in force. It has had a chilling and crippling effect on ecology and environment. It is evident from the compilation submitted to the Court by the CEC that several of the Category 'C' mines were operating without requisite clearances under FC Act or even in the absence of a mining lease for a part of the area used for mining operations. The satellite imageries placed before the Court with regard to environmental damage and destruction has shocked judicial conscience. It is in the light of the above facts and circumstances that the future course of action in respect of the maximum violators/polluters, i.e., Category 'C' mines has to be judged. While doing so, the Court also has to keep in mind the requirement of Iron Ore to ensure adequate supply of manufactured steel and other allied products. 45. Once the result of the survey undertaken and the boundaries of the leases determined by the Joint Team has been accepted by the Court and the basis of categorization of the mines has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the CEC. On the basis of the findings of the survey and the categorization made, both of which have been accepted by the Court by the present order, we direct that the aforesaid two leases, namely, M/s. S.B. Minerals and M/s. Shanthalakshmi Jayaram be placed in Category C . Necessary consequential action will naturally follow. 49. The CEC in its Report dated 28.3.2012 has placed the cases of M/s. V.S. Lad Sons and M/s. Hothur Traders (placed in Category C ) for final determination by the Court. The CEC has reported that the encroachment by M/s. V.S. Lad Sons is only in respect of the overburden dumps and exceeds the percentage (15%) marginally, i.e., by 0.17% which could very well be due to the least count error used by the Joint Team. In so far as M/s. Hothur Traders is concerned the CEC in its Report dated 28.3.2012 has recorded that according to the lessee it has carried on its mining operation for the last 50 years in the lease area allotted to it which may have been wrongly identified in the earlier surveys and demarcations by taking into account a wrong reference point. Having considered the facts on which the two lessees have sought upgradation from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid leases will follow. (10) The operation of the 7 leases placed in B category situated on or nearby the Karnataka-Andhra Pradesh inter-State boundary will remain suspended until finalisation of the inter-State boundary dispute whereupon the question of commencement of operations in respect of the aforesaid 7 leases will be examined afresh by the CEC. (11) The recommendations made in the paragraph VIII of the Report of the CEC dated 3.2.2012 (pertaining to M/s. MML, Pg. 57) is accepted. The recommendations made in paragraphs IX, X, XII (in respect of confiscated iron-ore) XIII and XIV of the said Report dated 3.2.2012 (Pg. 57-60) will not require any specific direction as the same have already been dealt with or the same have otherwise become redundant, as may be. (12) The recommendations made in paragraph XI (grant of fresh leases) and paragraph XII (in respect of pending applications for grant of mining leases) of the CEC's Report dated 3.2.2012 (Pg. 59) are not accepted. In view of the discussions and conclusions in para 44 of the present order, this Court's order dated 02.11.2012 placing an embargo on grant of fresh mining leases need not be continued any fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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