Thursday, September 26, 2013

Goa Mining Case - Supreme Court Proceedings

Here are summaries of each day of the Goa Mining Case in the Supreme Court. I am picking them up from Claude Alvares's (Goa Foundation) facebook page where he is posting all updates daily. All details, related documents, reports, affidavits etc. can be found at http://goafoundation.org/mining/

They are quite instructive - you get to understand the feeble arguments governments make in the courtroom, and how much effort goes in to ensure that the govt. gets cornered.

Day 1, September 17 2013
The Goa Foundation petition in the Supreme Court on the Goa mining scam commenced today at 10.30 am and went on the full day in a packed court room. Prashant Bhushan was on his legs the entire day with a one hour stop for lunch. Judges heard the matter patiently and with great sympathy. They appeared to be touched by the photographs produced by petitioners on the environmental destruction by mining. Prashant was brilliant. Norma also addressed the Court on specific issues when asked by Prashant. That way the Court is quite liberal. Central Empowered Committee Member Secretary Jiwrajka also made significant interventions though he is not an advocate. I had a place in the front row with the seniors, so I could assist with the documents. A copy of the written submissions have been sent to all the media. The matter will resume tomorrow. Prashant may argue till noon, after which the counsel for CEC will take over to argue the CEC report. Though Goa government wanted to make out its case that it was doing everything and the petition should be dismissed, the Court insisted on hearing the Ministry of Environment and Forests before them. The State of Goa is not represented by its Advocate General, Sushant Nadkarni. They have recruited a counsel from Chennai.
More tomorrow.

Day 2, September 18 2013
Second day of the mining case continued without break till 4.00 pm. Prashant Bhushan was still on his legs till 3 pm, when he concluded arguments, leaving the stage open for Adv. A.D.N Rao, amicus curiae for the Central Empowered Committee. He held till 4 pm. Matter will resume at 11.00 am tomorrow. If CEC finishes tomorrow, Ministry of Environment and Forests and Ministry of Mines will take time, before handing over to State of Goa. Atmaram Nadkarni was not in Court for the second day running: surprising. This is Goa's most critical case, but their principal law officer is gone to Sabarimala. Is it because they feel that only propitiating god will save them at this juncture?

Bhushan concluded his arguments by insisting that the SC judgements in the 2G scam and the Presidential Reference precluded any further renewals of leases of Goa's mines. He said the leases had all to be terminated, evaluation of the environmental and social situation should be done by an independent group of persons, who would decide how much time the ore will be in the ground for the benefit of the coming generations. He insisted that at least 3 generations of Goans should have access to the ore, so the extraction should be spread over a minimum of 100 years. All benefits from the sale must go to them and not to a few companies.

The Court was told that it had granted a suspension of mining operations only after the operations had been stayed by both the State and Central Governments. Justice Patnaik wanted to know why then was the Court being blamed for the stay and what indeed was the need of hearing the petition at all at this stage? Mining companies then jumped into the fray to claim they had challenged the orders of the State Government and the Central Government staying the mining operations and challenging the suspension of their environment clearances. Many claimed they had challenged the Shah Commission Report as well. These petitions had been filed in the Bombay High Court at Panaji, and several transfer petitions had been filed to bring them to the Supreme Court.

One proposal that even emerged was that the challenges to the Shah Commission Report, the state government's order dated 10.9.2012 and the MOEF's suspension order dated 14.9.2012, together with the Goa Foundation petition on buffer zones (460/2004) should also be brought to the same bench and heard, since they were all interconnected. If this happened, Justice Patnaik said, the Goa government would have to defend its order dated 10.9.2012 ordering temporary suspension, while the MOEF would also have to defend its order suspending all the ECs!

This dismayed the mining industry representatives: if that happened, the hearings might stretch into months, since there were so many petitions, some even challenging the CEC report, the Court would have to spend weeks and weeks on unravelling the mess. The Goa Foundation would have to be given copies of all the petitions and would then seek time to file responses. So instead of the present petition being heard and disposed of in two weeks for the benefit of all (which is what the Goa Foundation itself wanted), the companies have now ensured, without even wanting it, that there will be endless delay and no chance of the suspension of mining being lifted. This appears to be the natural consequence of filing too many petitions and having too many lawyers. I could of course be completely wrong and something else might emerge, so treat this as loud thinking, that's all.

Of course, the court never decides anything in haste. It has said it will look at all this tomorrow morning when it assembles. What tomorrow brings, only God knows!

Today, significant portions of the PAC report itself were read in the Court by Prashant Bhushan. He also introduced the Court to the Gadgil Panel report, and read a good bit of the August 2013 report of the Standing Committee (Lok Sabha) Coal and Steel, which had recommended a complete ban on all iron exports from the country.

The Goa Foundation also presented a composite table showing how every mining lease in Goa was involved in either on or other violation or illegality, and some were involved in several illegalities.


Day 3, September 19 2013
Third day of the Goa mining case in the Supreme Court. Prashant was present, but AG Goa was not found in the Court room the entire day. Hearings were halted at 4 pm, and will be resumed next Tuesday. Court has indicated it will hear the matter till the end and pass judgement. Good news for all.

First thing the Court did in the morning was to pass an order transferring around 10-12 writ petitions filed by mining companies and lease holders in the Bombay High Court (Panaji bench) against the Justice Shah Commission of Inquiry Report to the present bench to be heard and disposed of with the Goa Foundation petition. The Bombay High Court was directed to produce the record of all the petitions in the Supreme Court in one week.

Advocate appearing for Goa Paryavaran Suraksha Samittee (GPSS) informed the Court his client had filed over one hundred claims against over 100 mining companies for damage done by their individual mines before the NGT. Some of the companies had filed appeals against the NGT order entertaining his petition there, and they were listed in the office report of WP No.435. He therefore asked to be heard during the proceedings as well. Court assented.

The hearings commenced around 11.30 am with ADN Rao explaining the various findings of the CEC report (you can download the main text of the CEC report fromwww.goafoundation.org). That took the matter till 4 pm. The Court will resume ADN Rao on Tuesday morning before it goes to the Ministry of Environment and the Ministry of Mines. Goa government will be heard last.

Lawyer for the Ministry of Environment was present in the morning, but disappeared in the afternoon. Court was extremely annoyed. Asked for officers from both ministries to remain present from Tuesday onwards to answer questions. Ministry of Environment is acting like a cat on a hot tin roof, periodically doing the disappearing act.

Court came down heavily on destruction of bureaucracy. It said earlier the bureaucracy provided the steel frame for governance. Now officers were writing notes to favour decisions. The bureaucracy had been shattered and its backbone demolished. It was referring to the questionable decisions taken with the support of bureaucrats who should have advised their masters properly. It found several legal opinions drafted by Advocates General of Goa which actually legitimised illegal decisions or made illegal actions into legal ones.

As per the findings of the CEC report, 19 environment clearances were issued for mining in the Netravali wildlife sanctuary despite Supreme Court orders; another 23 were granted environment clearances in the 1 km safety zone from the boundaries of wildlife sanctuaries and another 120 had been given environment clearances in the 10 km zone without reference to the National Board of Wildlife despite the Supreme Court's order dated 4.12.2006 in an earlier Goa Foundation petition No.460/2004. This may turn out to be a massacre. Goa may never be the same again.

Met Christopher Fonseca and Suhas Naik during lunch. Christopher said this bench would pass a judgement that would put right what had gone wrong in the mining industry in the State.

The judges were extremely concerned about the impact of mining around the wildlife sanctuaries and implementation of the provisions of the Wildlife Act, 1971. They asked for the penal provisions to be read, if persons were found damaging the wildlife habitats.

Now we rest till Tuesday next, but it is a pleasure to be in this courtroom. The presiding judge, Justice Patnaik, has a great sense of humour and keeps the people quite entertained and relaxed. Bye for now!

Day 4, September 24 2013
Fourth day at the Supreme Court of India in Court Room No.6. The case: mining in Goa.

CEC continued and concluded its arguments by 12.30. ADN Rao read out all the various recommendations made by CEC in its report. (You can download the CECreport from www.goafoundation.org/mining.) He submitted a fresh formulation of the CEC's arguments for enforcement of section 37 (the provision that only leaseholders can mine their lease and cannot subcontract it to anyone else).

Goa government counsel Arvind Datar started arguments at 12.30. His first plea was that the Court should dismiss the Goa Foundation petition. He argued that the GF had not disclosed in its petitions all the actions that the Goa government had taken ever since the Parrikar govt had come to power in March 2012. The Court however said he should not raise narrow technical grounds, whether these were correct or not, in a petition dealing with violation of environment laws and Art 21 of the Constitution. If he wanted to argue thus, the Court would dismiss that objection in just a single para. The Court therefore rejected the plea to dismiss the petition. It did not find any serious infirmity with the conduct of the GF.

Adv. Datar then went on to read various parts of the first counter affidavit filed by the Goa government in the matter. He read all the annexures annexed to the affidavit, to show that the state government, after it had taken charge, had taken several actions. (The Goa govt's counter affidavit and annexures can be downloaded from the Goa Foundation website.) The Court wanted him to explain to them how mining had carried on without a proper regulatory system in place. The Govt counsel blamed the situation on the past government.

The Court asked him if all the actions had indeed been taken by the new government, were they indeed effective? If effective, then where was the need to temporarily suspend all mining by executive order on 10.9.2012. This meant the Shah Commission had substance.

At the moment, the Court appears convinced of the need for imposing a cap on production in the interest of Goa's environment and intergenerational equity.

The Court asked: what is the cap on production for Goa state? What is the state's environment's carrying capacity?

The Goa Govt informed the Court that it too was in favour of a cap. It said it had arrived at 20 million tonnes extraction and 25 million from dumps in its draft mining policy. The Court asked Adv. Datar whether any study had been done by any expert agency to arrive at that figure. It said it would only accept a figure which would would be environmentally sustainable. It said it had the power to enforce such a cap under Art 21 and the Directive Principles. Adv. Datar admitted the figure of 45 million tonnes was ad-hoc. CEC counsel ADN Rao informed the Court that in Karnataka, production at the time of the mining ban there was 86 million tonnes, but the cap imposed by the Court was 25 million tonnes. Production in Goa when it was stopped in 2012 was 45 million tonnes, therefore cap could not be the same, as this would be business as usual. In fact, everyone had agreed that 45 million tonnes was the result of large scale reckless mining and by violation of all norms. Adv.Norma Alvares told the Court that macro-level EIA study in Goa had already been done for the Western Ghats sector by the Gadgil Panel and it had recommended closure of 49 mines. Even if one went by the Kasturirangan report, the figures of mines for outright closure by both committees was 38.

It therefore appeared obvious that a) first thing to do was to find out the cap on production on expert grounds, since the Goa govt did not appear to have done any study in this connection. b) This cap might be arrived at after the macro level EIA study which would establish the carrying capacity for the state. c) After that, the court would have to be assured that the regulatory agency was in place before mining could begin.

Court adjourned at 4.00 pm. Adv. Datar will resume tomorrow morning.

The Court will also be hearing a batch of petitions challenging the Justice Shah Commission report.

Day 5, September 25 2013
Notes on the fifth day of the Supreme Court's hearings on the Goa mining case

The entire day was taken by the poorly briefed lawyer appearing for the Goa government, Arvind Datar. He specialises in customs and tax matters, and was reduced to reading from the affidavit, while brief by several people who kept whispering in his years. One of the persons assisting was one Shripal, who apparently is the Vice President of a mining company and who, according to people in the know, actually runs the Department of Mines and Geology.

Mr Datar spoke till 3.25 pm when he finally sat down, relieved it was all over. He is a decent bloke, one of the few honest lawyers in the business, but even he was unable to save the day. No AG in court even on the 5th day, even as the Goa government's case was clearly floundering.

Datar first addressed the court on its query of the previous day, about how it had arrived at the cap of 45 million tonnes given in its draft mining policy. He again admitted the figure was ad-hoc, but the 20 million fresh extraction was based on average of mine extraction from 2001 to the 2004 period, when it was between 18 to 21 million tonnes. so the govt took the average of 20 MT. He could not give any reason for the 25 million from dumps.

However, he informed the court of a new development. He said that the Dhanbad-based Indian School of Mines (ISM), a "deemed university", had been recruited by the MOEF to do a macro EIA of Goa State and that its report would be ready by the end of September. Though he said he had not seen the report, he appeared to be keen to rely upon it. As if on cue, Mukul Rohtagi, appearing for Vedanta, immediately popped up to sing the virtues of the ISM. He ended his singing of the praises of this institution by saying he was saying all this because he knew the "other side" was going to object to the ISM report. Obviously, the entire mining industry appears to be in the know of what the report is going to say. Probably it is going to also promote the figure of 45 million tonnes. More about the ISM study when it is handed over to us in Court on the 1st of October. Court said we are not interested in the reputation of the "deemed univ" or any of its attributes that you are describing but only in the substance of the report.

Back to the mining policy: the Court asked for details of the staff of the mining department. Datar mentioned 300 persons were being recruited. The Court raised the issue of their training, since they would be all new. So they would not really be available to do any monitoring or work till that time.

Court once again referred to the Berlin 2 Guidelines on Mining and Environment and expressed its view that they had to get proper scientists to get rehabilitation work done.

When Datar insisted that all the damage had occurred due to the corruption of the previous govt., the Court stopped him and advised him that they were not impressed with the argument. Government is a permanent institution. Whatever party was in power was of no concern to them. In fact, referring to Justice Shah and CEC, the Court said they were non-political people, so their view was better considered. The Court asked, what are your remedial measures? The Court was only concerned with the limits set down by the Constitution. The environment had to be protected. The economy too had to be protected, people needed work. There was a need to balance.

Datar however objected to the miners being labelled as "mafia", as "vultures". He said this was an instance of "metaphysical exuberance" not based on facts. He said "things were bad" but now the new government was keen to make a fresh beginning.

Court responded: "Handsome is who handsome does, not handsome looks." They wanted action on the ground. What had been offered so far were only theoretical.

Justice Kalifulla interjected at this stage to ask about the 3 Rs: reclamation, rehabilitation, restoration. He wanted to know what the Goa govt had done on the 3 Rs. Govt said they were going to recruit NEERI. The discussion was now about how could aquifers and mountains be rehabilitated? At this stage, Ranjit Kumar, senior counsel for the respondents, told the court how in the Aravalli mining case (where he appeared as amicus) entire mountain had been removed by miners. Justice Nijjar interjected at this stage that the mountain were not disappearing, they were being taken from here and could be found in China.

After Datar read out portions of the mining Policy which stated that they are going to rehabilitate the mines and then give the land to poor farmers for agriculture and horticulure and allied activities Justice Kalifulla asked how are you going to rehabiitate these mines ? Its not so simple. We have seen the pictures. There are huge pits. can you rehabilitate them? He asked Datar why they were proposing to give these lands to tribals and poor people for farming. He asked whether it was possible to fill the pits and use them for agriculture. What study have you done for rehabilitation of these pits? Was there any scope for rehabilitation of the mines?

Datar referred to rules in place governing rehabilitation and attempted to read them. Justice Patnaik intervened. He said the ideas were all there, also the statutory rules, but all were given the go-by because of other considerations. Things would only improve if these things were implemented. If government wanted to implement rules, nothing could come in its way. Justice Kalifulla said that ecology was important, and maybe they should close the mines for good if this was the situation and find other ways of finding a living. (At this stage, one of the lawyers for the respondents was heard saying loudly that 80% of the population of Goa was dependent on mining!)

Justice Patnaik: This country is for everyone. It is for tribals, for farmers, for labourers, traders, govt servants, etc. But the country cannot be exploited to enrich a few. We must have inclusive growth. Everything we do must subserve the common good. Referring to the manner in which money power, elections, etc were destroying the rule of law, he told the courtroom in his sternest admonition ever in these proceedings: "This must stop! This must stop! This must stop!" We are here, he said, to uphold the Constitution and Article 21 (Right to Life). Only the rich can afford the best of counsel, he remarked. He admonished the govt for not thinking of people besides miners. He said the govt must protect the rights and interests of all. It must think of the common people, the tribals, etc. He once again asked Datar to address the court on how mining could be combined with the common good. He remarked that the lawyers in the Court were being responsible only to their clients. The Court however could only act to uphold the constitution. He said he was aware of Art 19 and that the Court also had to strike a balance. The Supreme Court, he said, cannot fail the next generation. If Supreme Court fails, what else will remain for them? Justice Patnaik said the petition was not an ordinary litigation anymore, a very serious matter. Justice Kalifulla: It is difficult to shut our eyes. (The judges referred to the photographs annexed to the petition.) Court said even when the Court introduced sanity, the sanity was soon disturbed. There was a system failure. Everything had collapsed, despite mining policy, despite rules. Justice Kalifulla again said somethings could be reversed, but others could not. Scope for restoration of environment in mining was difficult. Justice Patnaik said we were talking of a cancer, which was terminal and for which there was no remedy. How can we revive ecology?

The Court was concerned that with nothing substantial in place, if mining was allowed to restart without an independent and strong regulator, the past would recur.

Datar made a proposal. He said that till an independent regulator was appointed, the Goa Lokayuktha could be asked to function as one and he could file reports on implementation periodically before the Supreme Court. The Court was not in favour, since it was unnecessarily burdening the Lokayuktha. The issue was this problem must be handled by a permanent system of regulation of which there was not much in evidence. You must have your own regulatory system in place, the Court said. The independent regulator must be a tough guy, not amenable to influence, empowered to shut down mines for any infraction. The problem is whether the Goa govt would allow such a person or accept such a person.

The Court was next addressed on encroachments found by the Justice Shah Commission. Datar produced a table to show that Justice Shah Commission had made several errors which had been found when the Govt carried out a fresh DGPS survey of the boundaries. He said if these errors were admitted, the Shah Commission figure of Rs.35,000 crores loot was bound to be an exaggeration. Court asked Dater: what was the PAC finding? Datar said it was Rs.3500 crores.

The Court was next shown a report from the Central Ground Water Authority which showed that whilst in Delhi and other parts of the country, groundwater was critical or overexploited, the situation as described in 11 talukas of Goa (based on 11 samples) was normal and quite safe. Court found it difficult to accept this when it had on file several reports of ground water depletion and pollution and said much depended on where the samples had been taken.

Datar next took up the Shah Commission report. Court asked him whether the Goa govt was taking action based on the Shah Commission's findings or on its own findings. Datar indicated the latter. If so, the Court said, it would not have to consider objections to the Shah Commission report. In any case, the Court was not bound by what was said in the Shah Commission report. It had report of the PAC, which was a report of the Legislature and also the CEC report. The Court said it would not listen to individual complaints. If that were allowed, the petition would not be disposed of for six months! Even as far as the petition was concerned, the Court said it was looking at it as a source of information. If you disagreed with the Shah Commission's findings, the Court asked Datar, why didn't you challenge the findings yourself? Datar said the Commission of Inquiry could not have functioned without giving the government notice. That is a statutory requirement.

The Court finally advised the Goa govt counsel to put down in a document, its findings on Shah Commission, CEC and the writ petition.

Datar finally told the Court that the State Govt had the right to act, implying that the Supreme Court should leave the matter of implementation to the State Government. Please leave us alone to act by ourselves, he pleaded. We have just come to power.

On the issue of auction of mining leases in the context of the presidential reference in the 2G judgement, Datar told the Court that auction was not contemplated in the Act, the Presidential Reference in fact referred to the MMDR Act as an example of allocating natural sources through route other than auction. He said the scheme for allocating of mining leases was laid down in detailed in the MMDR Act and was in force for several years.

Datar concluded by saying the writ petition filed by Goa Foundation was "premature". He said he would address the Court on intergenerational equity. Justice Nijjar expressed the view that the Constitution of India was essentially a document infused with principles of intergenerational equity. Justice Patnaik said he had just read an article which said that President Obama was struggling to return America to a welfare state, but we in India were moving towards a laissez faire state.

Solicitor General Mohan Parasaran addressed the Court on behalf of the ministry of mines and MOEF. He began by admitting to some actions that were indefensible. He also supported the position that the Presidential Reference did not mandate auction of natural resources like mineral ore. He commenced explaining the EIA process to the Court, but soon it was time for the Court to rise for the day.

Parasaran will address the Court tomorrow. If he finishes, the miners and intervenors will address the Court on 1 and 3 October. The petitioner may file rejoinder submissions and be heard on 8th October, which will be followed by one week of Court vacations.

Day 6, September 26 2013
Notes on the sixth day of the Supreme Court's hearings on the Goa mining case

SG Mohan Parasaran addressed the Court the entire day and was on his legs at the time the Court arose. The matter will resume on 1st October and 3rd October (Gandhi Jayanti on 2nd October being a holiday.) The hearing may stretch into 8th October and then the Court will go on vacation.

Advocate General, Goa, ANS Nadkarni appeared in Court today. He told me he went to pay his respects to Lord Ayappan every year on the same days, so this year, the Court fixed the Goa mining case on the same days. He was therefore unable to come to the Supreme Court because Lord Ayappan had not granted special leave. Besides, last week, Datar was on his feet and it was therefore not appropriate to dislodge him while he was presenting Goa's case.

Court wanted to know the scope of the study being carried out by Indian School of Mines. Did the ISM have environmental experience? Did their study involve issues like carrying capacity and intergenerational equity? Till the time of rising, no one from MOEF could produce the order setting up the ISM study. Yesterday they told the Court the study would be ready by end of this month and would be produced next week. Today they said the ISM report would be ready by the end of October [probably so that they could re-write some portions and pretend they were always conscious of these issues!)

From Parasaran's account it appeared that the Court had indeed been fooled into hearing the petition. Court wanted to know how they had been persuaded to hear the petition in the first place and why it was being blamed for the stay on Goa mining considering the following facts that became clear during the hearing:

a) ISM study, disclosed to the Court at the last minute, would not be ready till the end of October 2013. (Please note that the study would then be copied, made available to petitioner and all respondents and they would all have rights to comment on the report and whether they accept or reject it, since it was not ordered by the Court itself.)

b) Ministry informed the Court it had set up an Expert Appraisal Committee (EAC) to review all the 139 environment clearances given for Goa mining
leases. The EAC already had three meetings. (Though the Court requested last week, MOEF did not produce the minutes of the 3 meetings.) Parasaran informed the Court the final meeting of the EAC would take place on October .... After that Dussehra. Then the Ministry would get the report and decide on whether the ECs should be cancelled. To do that, all the lease owners affected would hve to be given a personal hearing. Imagine a personal hearing for nearly 139 ECs! Then the MOEF would take a final decision and place its report before the Supreme Court. [This lengthy process would probably not be completed before December.] After that, petitioner would have a right to agree or challenge the decisions taken. So would the individual mining lease holders. Till all this was done, stay would remain in place. In fact, even if the Supreme Court vacated its stay today, mining could not resume because the review process had first to be completed.

c) The Court was also informed that the buffer zone issue was being finalised. [Apparently, a team of people including the Environment Minister Natarajan is presently in Goa on this issue.] The buffer zone issue has been complicated further because of the Madei Tiger Reserve proposal. If that is accepted, the buffer zone would be 25 km. The report on buffer zones would also take some two weeks for completion, according to Parasaran.

d) The Goa Govt had asked the Indian Road Congress to do the carrying capacity of Goa's roads in connection with the load of mining trucks permissible. That report was yet to come in.......

The Court therefore said it would have been better if this petition had been put up for hearing in November. At least all these reports would have been in by then. [The Court cannot give a judgement right now without the reports since these are all related to the issues raised in the petition.] Obviously till these issues are resolved, no vacation of stay. In fact, the Court is not hearing any plea for vacation of stay. In fact, Goa govt has been asking for dismissal of the petition, which has been rejected.

Parasaran read out a prepared note. In the note, he told the Court 5 mining leases had been ordered to shut down in August 2012. He told the Court the Goa govt refused to carry out the requests of the MOEF to stop work on leases that were found to be without NBWL clearance. He said he agreed with the CEC that 43 mining leases fell within the wildlife sanctuaries and within 1 km of the wildlife sanctuaries. He listed around 30 leases in whose cases the need for a wildlife clearance was not even stated in the environment clearance. He also listed several cases where NBWL/wildlife clearance had not been obtained despite this being a requirement. He said only 10 mining leases fell outside the 10 km range (but even these could be having other violations).

About the continuing violations he told the Court, referring to the Goa govt: “They are to be blamed, but we too are to be blamed.” He informed the Court that though the MOEF suspended the environment clearances in September 2012, the EAC to examine the cases was set up only six months later, in March 2013! Justice Kalifullah wanted to know whether the terms of reference for the EAC doing the review included the damage these mines were causing to the environment. Parasaran said no. Justice Kalifullah a second time expressed his firm conviction that maybe mining should be shut down forever. Justice Pathak reformulated the proposal to say that there were two economic models: one in which mining was permissible and the other, in which mining was banned.

Parasaran agreed that leases given out by goverment could be construed to be a largesse and therefore must be in accordance with law.

The bench spent considerable time on the amount of ore that could be extracted from Goa. It wanted to know why Justice Shah had recommended a cap of 12.5 million tonnes. It wanted to know from Parasaran on what grounds the MOEF had granted ECs for extraction of 66 million tonnes annually. The Court examined the provisions of the MMDR Act, and came to the conclusion that the Act had no guidance and no limits and no environmental concerns in respect of the quantity of ore removable from the earth. It was concerned merely with mining. It encouraged mining. It disclosed no concern for exhaustion of resources or that anything should be left for future generations. Chapter V of MCDR, 1988 laid down some environmental dos and donts, but these were after a mining plan was approved. The mining plan was not based on placing any restrictions on the amount of ore that could be removed from the ground.

The Court was told that market demand also played a role. This was not taken kindly to by the bench. It said clearly that meeting market demand and the requirements of environment protection did not go together.

Day 7, October 1 2013
Seventh day at the Supreme Court of India on the Goa mining case:

The bench remained firm on its approach to the Goa mining case and the issues it has raised. Private mining companies took the stage for most of the day. A last ditch effort by Mukul Rohtagi to persuade the Court to allow the transport and sale of ore piled up at leases, jetties and stockyards was summarily rejected by the bench which indicated it was hearing the matter fully.

Mohan Parasaran, SG, began the morning's arguments. He first presented to the Court a copy of the agreement signed between MOEF and the Indian School of Mines, Dhanbad, in connection with the Regional Environmental Impact Assessment covering the Goa mining industry. A copy of that will shortly be scanned and put up on the Goa Foundation website. The ISM report was to be filed at the end of September, but now the institution has delayed the submission mostly likely to incorporate some of the concerns being expressed by the bench. A whole lot of people are awaiting submission of the final report, which will be in only at the end of October, unless it is delayed further. Parasaran waved an interim report submitted by ISM in April 2012, but said it was not very revealing since it was merely concerned with technical matters.

Parasaran next produced for the court a voluminous report by the Planning Commission on sustainable development in the mineral sector. He did not read any portion of it. A summary will be posted in these columns when we have the time to read it. Such reports are not written by Frederick Forsythe or Arundhati Roy, and often, one has to go through several bouts of dozing before one can complete reading the entire report.

The third document produced by Parasaran was on the ground water and mining and according to him, dealt with Goa and Karnataka. He referred to new guidelines for the ground water extraction in mining areas issued on 15.11.2012. He was fair enough to inform the Court that the spurt in reports was all happening after the mining scenarios of Karnataka and Goa. He concluded by telling the Court: "Now we have all woken up!"

In relation to capping of production of ore from Goa, he sought to convey that a restriction was indeed placed when the EC was being considered after the EIA process. However the bench was not convinced because it said, it was still seeking answers to whether the cap should be on individual mining leases, area or state-wise. At the present moment, the Court said, once you find ore, you can take out all you want. All incentives are in place for that. Capping has to be done for intergenerational equity and to protect the environment. Parasaran agreed that present mining rules are like that. He finished and sat down.

AG, Goa tried to address the Court, but the Court disallowed that. There was a brief lull. K K Venugopal, who was supposed to lead the private brigade, was on his legs in another courtroom. Eventually, Sesa counsel Mukul Rohtagi, one of the most high priced lawyers in the country, took over and stayed on his legs till 1pm, when he retired for the day. He spoke for 1.5 hours.

He produced a 3 volume defence (dismay, more reading to do). His first assault was on what he called "the fixed stock theory" on natural resources. He said the theory had been debunked. He quoted an English authority to the effect that "fixed stocks" of minerals was a figment of the imagination, since ore reserves kept being revised upward every few years. The Court however interrupted him and told him not to waste his time on that argument. It said Rohtagi was an interested party, and it needed advice from independent experts.

Court asked Rohtagi if he had read a book on the Rise and Fall of Liberalism [written by Frederick Clairmonte?]. The book apparently argued that the business lobby was influencing all thinking across the world, including judicial thinking! I can lend you the book for you to read, said Justice Patnaik. He referred to English thinkers (Hobbes, Locke, Rousseau), the key people involved with the idea of the social contract. All these thinkers wanted laissez-faire policies, and the social contract was to be the given input. It all depends who is talking and his thinking will develop as per his interests! Court again said it wanted independent advice from experts, it could be ISM, NEERI or ICFRE. Rohtagi only objected vociferously to the CEC, saying it did not have the expertise. The CEC had migrated from its original expertis (forestry) now to mining, according to him. He did not refer to the fact that the Court in the Karnataka judgement went almost wholly by what the CEC had recommended.

So Rohtagi was unable to read his submissions on the demolition (according to him) of the fixed stock theory, so he went on to two other issues of great relevance to Sesa Goa: dumping outside the lease area and dump mining. He said he was also supposed to address the court on the buffer zone, but was desisting from doing so because K K Venugopal, batting for Salgoncar & Bro., would be dealing with that.

According to Rohtagi, the Supreme Court judgement in the Karnataka judgement holding that dumps outside the lease area were illegal was itself wrong since its interpretation flew in the face of statutory provisions. He said that dumps were approved in the EIA, EC and also in the mining plan. He conceded dumps were not shown on the lease plan, but certainly on the mining plan. He proposed a new way of bypassing the statutory recognition that the IBM has no authority to approve any activity beyond the sanctioned lease: he proposed to the Court that we must know that the "mine area is larger than the lease area." He said one could not mine beyond the lease area, that is, the mining pit must be within the lease. However, the dump could be outside the lease. He referred to mines in which the entire lease was mineralised and the pit covered the entire lease area [probably referring to the Cosme Costa lease, illegally operated by Sesa Goa]. In such cases, the dump had to be outside the lease!

The difficulty as I see it: the Karnataka judgement has become the basis for cancelling all those mining leases in which dumping outside the lease area exceeded 15% if the lease area. In Goa, in fact, encroachments outside the lease have touched 2-4 times the area of the lease itself, that is not 15%, but 200-400%. Rohtagi was therefore seeking to denude the Shah Commission's report on these encroachments.

As far as the second issue is concerned, dump mining, Rohtagi said once the ore had already been removed and dumped somewhere, one did not require a fresh environment clearance to clear the dump. He said some of the dumps had been created 20 years ago [when there was no need to have environment clearance]. The Court wanted to find out if there weren't any disputes in relation to the ownership of some of these old dumps. Rohtagi said there were no such conflicts in Goa at all! [Of course he was not present in Goa when Sesa Goa and Fomento recruited more than 300 private security guards to claim sub grade belonging to a third party. Or what about the R.S. Shetye ore grab? But lawyers say what they want.]

The Court responded that it was a policy matter and if the Government decided that dumping mining needed an EC, they had the power to insist on it.

Rohtagi showed the Court pictures of the Sanquelim dump which has been shown by Sesa Goa to every visitor to Goa now for several years. He showed the Court pictures of the Vaghuriem dump without telling them [naturally] that it was in violation of the EC and consent imposed by the Pollution Control Board. When you are with your back to the wall, take the bull by the horns. Even the brazen abuse of the 2003 order of the Bombay High Court restraining companies from raising dumps without explicit permission from the IBM and the Water Resources Dept was turned on its head, claiming the High Court had not prohibited dumping outside the lease area!

Rohtagi then took the court to the MCDR Rules to show that the environment was considered when mining operations were sanctioned. [Despite these regulations, not a single mining lease can show you even a one foot high hill of topsoil which they are to keep aside prior to mining below the surface.] Rohtagi insisted that the system was in place in all respects for environmentally safe mining. The bench noted that all these rules had only been inserted in 2003. However, illegal and environmentally unsustainable mining commenced thereafter.

Rohtagi told the court about the mining bypass project and then disclosed that the bypass would only use trucks that would be five times the capacity of existing trucks. He said present day trucks were too many and caused pollution. When they were replaced by 50 tonne vehicles on the mission byepass road, all problems would be a thing of the past.

Rohtagi concluded by pleading they be permitted to take out the ore laying in stacks on leases, jetties and stockyards. He clearly distinguished this from mining the dumps. He said this material had already been taken out and it was now an environmental hazard. The Court was unwilling to consider his plea. We will allow 50,000 tonnes and they will take 5 million, one of the judges said. In any case, this was not a hearing to vacate any stay, the Court was hearing the petition fully.

Afternoon, K K Venugopal took over and remained on his feet till the Court adjourned for the day at 4.00 pm.

KKV said he was arguing the case of VM Salgaoncar and Bro. The main objective was to persuade the Court to cancel the rejection that the Forest Advisory Committee had made of 4 Salcaoncar leases that were in the 1 km safety and no-mining zone from the boundary of wildlife sanctuaries. There is a brief history to that which he took time to establish.

Salgaoncar & Bro [together with other lease holders like Prafulla Hede] had approached the Supreme Court with an application in Writ Petition No.460/2004 (another GF petition in the Supreme Court) to direct the Ministry of Environment & Forests to treat Goa as a special case or exemption from the order of the Supreme Court declaring the 1 km zone as a safety zone around all wildlife sanctuaries in the country. The Supreme Court directed the applications to be placed before the Standing Committee of the National Board of Wildlife for its decision. The Standing Committee was divided: the majority allowed the mines to function though they were in the 1 km zone, but restrained them from exceeding the mining pit area. Three non-official members vociferously objected to the proposals. The matter was sent back to the Supreme Court, which seeing the division, referred the matter to the Forest Advisory Committee (FAC) appointed under the Forest Conservation Act, 1980. The FAC said it was rejecting the proposals. The matters have lain there since then and KKV was essentially to resuscitate them and liberate them from the FAC burial. KKV argued that wildlife matters are not touched by the FCA but the bench insisting that wildlife and forest matters are interconnected. ANS Nadkarni tried to intervene to tell the Court the State Government had submitted its proposals for buffer zones for Goa (1 km) and the MOEF was supposed to notify them, which would make the discussion raised by KKV redundant. But the Court told Nadkarni that the most difficult thing is to get the govt to issue final notifications. The Court then rose. Resume on 3rd, at 10.30 am.

[Text in square brackets sourced to CA]. This is not a press note, but a personal rendition of the hearings to preserve my memory so that we are ready for rejoinder when the time arrives

Day 8, October 3 2013

The mining industry's lawyers were on their feet the entire day. KK Venugopal, who had not concluded yesterday on behalf of the Salgaoncar Bros., could not attend this morning. Chander Uday Singh took over from where KKV had left off. Chander Uday Singh's effort to represent the Goa Mining Association was not agreed to by the Court which wished to hear first all those mining lease owners who were in the category of “affected parties” and who had filed Intervenor Applications in 435, or filed challenges to the Shah Commission (which the Supreme Court had transferred from the Bombay High Court on 19th September). After Chander Uday Singh, Sundaram took the wicket on behalf of Chougule and Bandekar. He ended his innings at lunch. After lunch, Rafiq Dada took charge for Fomento and was still batting when the Court adjourned for the day.

He will resume next on 22nd October, after the Dussehra vacations.

There are still some mining companies and the GMA left to be heard after that. Petitioner's counsel, Prashant Bhushan, will rejoin before the Court will terminate the hearings. In between, there is still the issue of the buffer zone for all the six wildlife sanctuaries and national park. We do not know whether the Court will rule on that issue, considering hearings in respect of buffer zones have been taking place sporadically in other cases. However, the Court has tagged along with WP 435, WP 460/2004, also filed by the Goa Foundation and IA 1000 (Jambugarh Wildlife Sanctuary matter) where the ban order on activity in 1 km zone of all wildlife sanctuaries was passed on 4.8.2006.

So what did Chander Uday Singh try to plead on behalf of KKV and the Salgaoncar Bros? He went to a map enclosed with their application which showed a road between the Bhagwan Mahaveer Wildlife sanctuary and the mining leases of the Salgaoncars. He said this road, which branched off to Tambdi Surla, went further down and joined the NH. He therefore pleaded that in such cases, if the buffer zone was to be specific to that sanctuary, the road -- and not 1 km -- should be the limit of the buffer zone.

Justice Patnaik interrupted at this stage. He emphasized two things which he said should be distinguished from each other. First, irrespective of the State Government, the MOEF could issue a notification for a buffer zone under the various sections of the EPA and EPA rules. Once such a notification was issued, all activities disallowed by the notification would cease. This would have implications for fundamental rights under Art.19 (i) (g). MOEF would therefore issue a draft notification, invite objections etc., before a final notification.

The second aspect involved the Court's power and jurisdiction. Irrespective of where the minerals were (on private or state land), State of Goa is the owner of the minerals. Art. 21 obligates the State to protect life and environment. Even if a central govt notification is not there, the State Govt is obligated under Art.21 to maintain life which includes environment and which includes flora and fauna. The State cannot therefore allow minerals to be exploited (since they are its property) -- irrespective of any notification under EPA, 1986 -- if the action of exploitation affects Art. 21 and the environment. The Court put the mining respondents on notice on this position it was going to take.

Since the discussion was in context of establishing buffer zones around wildlife sanctuaries, this Court could declare extent of buffer zones if it had to protect Article 21 and the environment. Article 21 is guaranteed by the State. “Under our Art.32 powers we can direct its enforcement by the State.” The Court found this position also affirmed in the Okla Bird Sanctuary case. Justice Nijjar said we could enforce Art. 21 as per the facts of the case of mining in Goa that have emerged before the Court. Court could therefore enforce buffer zones under its own power to enforce Art. 21.

Justice Patnaik referred to the dust pollution affecting the forest vegetation outside mining leases. He said if you live by the side of a road where there is traffic, you can have a layer of dust in your house. Common sense indicated that air pollution would affect a sanctuary's vegetation. Animals would be eating vegetation contaminated with such pollutants. Such pollutants could travel more than a kilometre.

Counsel for the mining companies however appeared distressed that the Court might direct the extent of a buffer zone. They tried to impress on the Court that the Goa govt had already sent a one km buffer zone proposal to the MOEF. The MOEF was to notify these proposals and put them up for public consideration before finally notifying them. [From earlier reading of documents, it appears the Goa govt., as usual, has suggested a 1 km buffer zone, but with one condition relating to the mines. These will be allowed to operate for 10 years and then phased out. This means the buffer zone would not operate for 10 years. Probably this is the Goa govt's idea of a bad joke. In court today, however, the counsel informed the Court that the “leniency” period for mines operating in 1 km buffer zones would be 5 years.They appeared to be unable to muster the courage to inform the Court that the truth was actually 10 years.]

Counsel therefore pleaded with the Court that it should wait for the MOEF to declare the buffer zone. “If the govt does its job (in issuing the notification declaring buffer zones), the Court would be relieved of the burden.” Court was unimpressed. It referred to other situations including Sterlite, where notifications were not forthcoming for years, despite Court interventions. The Court could not tell govt to issue notifications and laws where and when the Govt had the power. But if the Court found the Govt would not do so or was delaying, resulting in environmental damage, the Court could go ahead and declare the buffer to protect Art. 21 and the environment.

The Court expressed difficulty with the idea that buffer zones must be sanctuary specific. It said the buffer zone must relate to activity. For example, mining, nuclear reactors, etc., would require a different distancing than a road or habitation.

Chander Uday Singh pleaded: “Let the process of notification be completed! In a few months, you will have the actual notification before you!”

Well, it's upto you whether you want to trust the Court or anyone else, said Justice Patnaik. Chander Uday Singh referred to Dantewada (a Maoist trouble area), and said that if mines were closed and employment was killed, people might turn to similar activity. [Earlier, he had said the Salgaoncar mines whose cause he was now pleading had been shut from 2007, since they lacked forest clearances.]

After this, Chander Uday Singh (who is an old acquaintance of mine and a very decent bloke) tried to address the Court on the IA filed by the Goa Mining Association. Court said he could speak only after all mining lessees had completed their submissions. [It is important to emphasize here that the GMA was only registered as a society some two years ago. The more established association is the Goa Mineral Ore Exporters Association. Interestingly, GMOEA has not filed an IA, since it got itself registered as a Society only this year. Despite being unregistered, GMOEA set itself up as an “Authority” and collected payments amounting to several crores illegally from mining companies ostensibly to approve or legitimise their export contracts. But it was not appearing in the present proceedings at any rate!]

Adv. C.A. Sundaram then took the stage on behalf of Chougule and Bandekars. He first tried to impress upon the Court that mining had a long history in Goa. Chougule was a very old and established name and was upset about being unfairly mixed up in illegal mining charges. They had contributed much to society over 50 years [but he would not say how much they took and put in their own pockets]. His main effort was to try and show there were no illegalities associated with the companies he represented. All that the shouting about illegalities, he said, had produced as a nice conclusion the idea that the industry needed regulation. He admitted, upon Court's probing, that even if you are fully legal, your activity can be restricted under Art.21.

He raised 5 points as issues in the petition: 1) the buffer zone issue, already addressed by KKV; 2) the dump issue, addressed by Mukul Rohtagi; 3) the excess mining issue; 4) mining without ECs or Forest Clearances or ECs illegally granted in sanctuaries; 5) carrying capacity and the cap on production. What cap needed to be arrived at was part of regulatory action. Relevant facts necessary to arrive at the cap could be: a) decreasing ground water levels; b) effects of mining on flora and fauna and c) destruction of agricultural lands. (Intergenerational equity could come under capping.)

He said his clients did not do illegal mining. They used state of the art technology and did no damage to the environment. On the issue of dumps as encroachment, he criticised the Shah Commission who had held all dumping outside lease area as illegal. State govt, because of this finding, had issued notices to Chougule and Bandekar and others. Shah Commission never looked at the all the legal provisions connected with dumping outside leases nor examined that the land was privately owned and therefore could be used for dumping.

Sundaram said the Shah Commission had at the most done “prima facie fact finding.” Justice Patnaik agreed, saying that none of these leases had been terminated for any wrong doing, so where was the issue? However, it triggered off, in this case, the entire enquiry that is now the basis of this Court's intervention. Sunderam repeated Rohtagi's view that the Shah Commission might not be correct on dumping in view of statutory provisions that allowed it.

After this, Sundaram tried to defend the actions of former Forest Officer, R.A. Mazalkar, who had as Collector excluded several (55) mining leases from the Netravalli wildlife sanctuary, including Chougule's two leases. He held there was no illegality because the officer had excluded these leases as per the provisions of the Wildlife Act.

The Collector, in that case, said Justice Patnaik, could not say no, because of the big bosses. If you argue the point further, we will go after the Collector who did nothing more than disobey the law and obey the boss. The Collector's powers are in respect of land rights, surface rights, yes. But so far as minerals and leases are concerned, the Collector has no power!

19 ECs had been issued for leases in Netravalli sanctuary. Justice Patnaik asked, once a sanctuary is notified under section 18 of the Wildlife Act, can ECs be granted?

As far as 1 km was concerned, Sundaram said their activity could not be termed illegal, as their mining plan was approved by the IBM. In that case, said Justice Patnaik, we shall hold IBM responsible! Sundaram told the Court that he was concerned about what should be done in mining in the future. He was interested in the matter “prospectively”. The bench was sceptical and remarked that its earlier “prospective” orders (4.8.2006 and 4.12.2006) had not been implemented.

Afternoon: Rafiq Dada took charge for Fomento Industriale Irmaos. Neither he nor anyone else appeared confident of pronouncing the Portuguese sounding name. Adv. Dada, like Chander Uday Singh, is a very nice gentleman, always courteous, always unflappable. This is how lawyers should be. He tried to argue against the Shah Commission Report. The bench told him quite firmly: argue against the Shah Commission. We will quash the Shah Commission Report, based on your petitions. Then we will order the Shah Commission to carry out the investigation again, after giving you all due notice. Thereafter, you will not be allowed to challenge the Report. Till this is all achieved, the ban will remain in force. Do you want this option? We are trying to sort out this matter expeditiously.

Adv. Dada retreated after Justice Kalifulla advised him to reverse the priority of his arguments. He told him, argue Shah Commission last. So Rafiq Dada took up the issue of Section 24A of the Mineral Concession Rules, 1960, which governs renewal of leases. Suddenly, as the discussion on that progressed, things began to look very bleak for the industry. But about that, in the next post since I now need to sleep.

II Interlude Notes on the Goa Mining case (October 5, 2013)

I ended my post of the proceedings of the eighth day of the Supreme Court proceedings in the Goa mining case with some dark hint about something bleak that emerged in the post-lunch period on the horizons of the mining industry. [I have thereafter been informed by some of the readers of that post that the suspense is killing them and one of them confessed he has already chewed up all his finger nails.]

So let me recommence with Adv. Rafiq Dada’s presentation on behalf of Fomento (afternoon of Oct.3).

Dada told the court that they had challenged the Shah Commission Report by a separate writ petition before the Bombay High Court which had now been transferred to the Supreme Court and placed before the present bench. He had also filed IA No. 13 and had since been made Resp. No. 12 in W.P. 435.

His petition sought relief from the Shah Commission Report findings. He said the procedure had not been followed as per the Enquiry Act.

He said the Shah Commission Report had resulted in two prejudicial notices being issued to Fomento for allegations made in the report and therefore, without a hearing, adverse findings had been raised against his mining leases without a hearing and this was serious. There were Supreme Court judgements precisely on these points. He also mentioned a US judgement in his favour [which was eventually not produced].

To that submission, the bench reiterated its view that the Shah Commission Report was mainly a fact-finding panel set up specifically to investigate large-scale illegal mining and even if any findings had been made in the report, it was up to the central government or the Goa government to take action on the basis of those findings. Those findings, in fact, have not resulted in termination of any of the mining leases owned by miners, so they could not make a grievance. If the state govt or the MOEF took action without giving notice, Dada’s clients could always approach the Court.

The bench said that the authorities had issued a general suspension order on 10.9.2012. These suspensions orders have been challenged. However, this Court had already arrived at the prima facie conclusion that both the suspensions orders of the state government and the central government could be upheld in view of what is stated in the CEC Report. The relevant para which the court relied upon was the following:

“83. Unlike the other major iron ore producing States, no such system [of verification] exists in the State of Goa. There is no system of periodic verification of the iron ore produced in the mining leases, payment of royalty after such verification, issue of permits for transportation of mineral by the Mining Department, issue of transit permits by the Forest Department, 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, verification of the transit permits at the check posts, verification of the quantity of the mineral exported/domestically used vis-à-vis the quantity legally produced. There is absolutely no system / Rules in existence for checking / verification the actual quantity of the iron ore produced and transported from the mining leases. Consequently, illegal mining can easily be undertaken outside the mining lease areas and which can conveniently be shown to have been done legally in the lease area.”

For the above reasons, the Supreme Court said: “We find prima facie that the suspension order issued by the Goa government is valid. It was a valid action which the Court upholds on the basis of the material now before the Court. Beyond that, nothing further has happened in terms of terminating any lease. The order of suspension itself says that all the ECs are being examined without exception, so it is not possible to claim that it is an order against you personally and therefore you are entitled to make a grievance. We are not going to quash the Shah Commission Report but, as the Supreme Court, we will protect you and your rights.

“However, if you continue to attack the Shah Commission Report – and continue to repeat the argument that the provisions of the Enquiry Act have not been followed, then there is a risk and the risk is yours. Argue if you want against the Shah Commission. We will quash the Shah Commission Report, based on your petitions. Then we will order the Shah Commission to carry out the investigation again, after giving you all due notice. Thereafter, you will not be allowed to challenge the Report. Till this is all achieved, the ban will remain in force. Do you want this option? We are trying to sort out this matter expeditiously.”

Rafiq Dada reiterated that what they were saying is they should have been heard. He said that the Shah Commission had come to the finding that practically all leases in Goa were “deemed rejection” cases in 1988 itself as they did not meet the provisions of Rule 24 (A) of the Mineral Concession Rules 1960.

He attempted to persuade the Court that Justice M.B. Shah [a former Chief Justice of the Bombay High Court and a former Justice of the Supreme Court] had perhaps not looked at the law very carefully or had not understood it very properly in the context of the various amendments that Rule 24 (A) had gone through over the years.

This argument proved to be nothing less than a purely unsolicited invitation to the Supreme Court to look closely at the procedures that have been followed in Goa in respect of the renewal of leases and thereby open a Pandora’s box. Things became more interesting with the arrival of the Scarlet Pimpernel in the courtroom.

Prashant Bhushan had been missing from the Court for two full days because he had to argue before Justice Lodha’s Court on the coal blocks matter and thereafter, the ban on gutka. But on 5th October he was back in Justice Patnaik’s Court. And he drew attention of the Court not to the MCR Rules, but to section 8 (2) of the MMDR Act itself, which did not permit renewal of a lease beyond 20 years.

It became quite apparent – after looking at Sec. 8 (2) of the Mines and Mineral Regulation Act, 1957 and Sections 8 and 9 of the Mineral Concession Rules, 1960 – that bulk of the mining leases in Goa did not possess any validity beyond the year 2007. What this actually meant was that post-21.11.2007 – on the date when practically all mining leases in Goa expired – the expiry of the lease period was final as there were no provisions existing in law which granted the lease holders any right to file further renewal applications.

In concrete terms, the population of mining lease-holders in Goa was decimated on 21.11.2007 and all extraction thereafter by parties whose leases had expired on that date would, in most cases, be without the authority of law and therefore illegal. The state government, as usual, had done nothing about this state of affairs though it might have been well aware of the rules.

In fact, on an application made by 8 mining leases in 2006, the state government had renewed these leases for another period of 20 years, from 2007-2027, without there being any basis in the statute for this action.

Goa Foundation PILs before the Bombay High Court at Panaji had also raised this issue. However, the complexity of Sec. 24 (A) has daunted most legal minds, thus enabling the mining companies to continue mining on the basis of the absurd proposition that there was no need to get their mining leases renewed by Government at all every 20 years. All they had to do was file applications for the renewal of the lease one year before its expiry (2007, in the present instance) and an obliging state government would continue to permit them to mine under the deemed extension clause which basically said: “If an application for renewal of a mining lease had been made within time and had not been disposed of by the state government before the date of expiry of the lease, the period of that lease would be deemed to have been extended for a further period till the state government passed an order on the application.”

What the mining companies argued was that every time the lease period came to an end, all they had to do was file another application for renewal and continue to mine under the deemed extension proviso. With the enormous clout at their disposal, they could persuade the state government not to pass any orders on their applications at all.

Thus we had this huge scandal of mining companies mining for 20 years on the basis of applications filed in 1987. One year before the expiry of the lease period (2006), they all filed a second renewal application (even though the first one had not been approved by the state government) and continued to mine till 2012 when they were finally stopped by the revelations in the Shah Commission Report.

Sec. 24 (A) is indeed a chamber of horrors. Several aspects are still to be unravelled in the hearings in relation to this clause when they recommence on 22 October. It will be foolish for the Goa Foundation – in open posts like these – to notice them or to disclose them at this stage.

On our part, it appears, we should indeed be thankful to the lawyers of the mining companies who have practically invited the Supreme Court to look very carefully at the mining lease renewal process obtaining in the state of Goa – malfunctioning for several years because the Goa govt and the mining lobby were found sleeping in the same bed.

Already the news paper today (Oct.5) report that the state government has cancelled the first mining lease (of 42 such cases) on grounds of illegal condonation of delay in filing the application for first renewal by the Digambar Kamat government. The state government has raised a demand notice for Rs. 180 crores against Ajit Kadnekar for operating the mine without having a valid lease.

The next person who will face similar consequences is perhaps Dinar Tarcar. In his case, the demand notice would exceed Rs.200 crores.

If the Shah Commission findings in respect of the botched procedure of renewal of mining leases in Goa are upheld by the Supreme Court, then State of Goa would have to issue further demand notices for ore illegally extracted from all those mining leases that operated for the period 2007 till 2012. If the totality of that money is recovered, the Goa government will have enough money to run the economy of Goa for several decades, without taxing the citizens at all.

(This does not purport to be a press note. It has been written from notes merely to aid memory for final submissions.)

Day 9, October 22 2013

Adv. Rafiq Dada from Mumbai referred to the 4.12.2006 (where all Environment Clearances had to be sent to the Standing Committee of the NBWL for its NOC) and argued that the order made it clear that only MLs prior to 4.12.2006 were directed to be sent by the Court to the NBLW. There was no need for the ECs after that date to be sent to the NBWL. Even the advertisement or public notices issued by the MOEF in 2009 specified that environment clearances from Feb 2002 to Dec 2006 needed to go to the NBWL and this is how the Ministry understood and also the CEC understood it. Because the CEC in the Western Hills Foundation case (also from Goa) put a restriction only on one km as per the order dated 4.8.2006, but said the State of Goa could allow mining activity beyond 1 km and did not say that the leases had to go to the NBWL in that report. Therefore, mining companies like his clients were not at fault. He took pains to declare they should not be held to be doing illegal activity on that count. They have worked within the parameters of law and it is not that they have been lawless in this regard. Had they been correctly informed that they had to go to NBWL, there was no reason for them not to have done so.

The second issue that Adv. Dada raised was that ecosensitive zoning had to be notified under the Environment Protection Act and this was made very clear in the Noida Park matter because the SC specifically said in that judgement that such notification had not been issued and the activity was therefore permitted.

The Court then said it is correct that the ecosenstive notification has to be issued by the Central Government under the Act and such a notification would affect a large number of people, hence first a draft notification is called for so that the public has an opportunity to comment on the notification.

However, the Court reiterated, mining is an activity of the State which is allowed to be carried out by private parties. It is the duty of the State to enforce Art 21 which includes environment.

Regarding the 10 km ESA, much will depend on the kind of activity which is carried out in that area. Art 32 empowers the SC to enforce fundamental rights, it is a power given by the Constitution. We don't need any authorisation from Parliament. But while giving directions under Art 21 we cannot be oblivious to Art 19 which is the freedom to carry out any occupation. Therefore in respect of 1 km zone, we have the power to prohibit because an activity like mining does affects the environment, but if we prohibit activities upto 10 km, everyone's trade would be affected and then there is no balance and hence we will refrain from taking such a stand.

Adv. Dada next went on to argue in favour of the dumps being located outside the lease area. He said, if we look at the EC, dumps have to be kept separately and even further, subgrade ore has to be kept separately from waste, so the mining law itself insists that the dumps are to be kept separately. Once the ore is extracted, it ceases to be a mining activity. And so where it is dumped becomes a matter of arrangements one makes. Earlier the threshhold limit was 55 fe. Since now it was 45 fe, we are able to remove what was kept separately as subgrade ore and we are able to remove that also and export it.

In that context, Adv. A.D.N. Rao read out official reply given out by IBM under RTI on dumps, where the IBM has specifically said that dumps shown on the mining plan outside the lease area are only for indicating material balance. The IBM does not give any approval for activity of dumping outside the mining lease.

Adv. Dada informed the Court that mining dumps had to be kept separately so that they did not collapse into the mining pit and if the dumps were kept on the lease, people would have to go through the dump in order to go to the mining pit(!) If they were kept on the lease in that case, they would be an environmental hazard.

After Adv. Dada concluded, Senior Adv. Ravi Shankar Prasad of the BJP (and TV favourite) commenced his arguments on behalf of sarpanches of 33 village panchayats from mining areas in Goa. RS Prasad concentrated solely on livelihood and employment issues. He told the Court some 1.5 lakh people were dependent entirely on mining. He made a strong plea that livelihood was a part of Art 21, which also included economic empowerment. He said that intergeneration equity is also integral to Art 21. Moreover there is no deadlock between development and environment and hence the expression “sustainable development”. Total investment made by truckers is Rs.3250 crores and they have outstanding loans of Rs.1600 crores. Revenue from mining is important for the State to fulfill its obligations under Art 21.

The Court interrupted at this stage and said that during the interregnum ban period, nature in Goa had also regenerated and we have to also look at that.

RS Prasad informed the Court that large number of pople have invested in trucks and taken loans for the purpose because mining has been the most important industry for employment generation, livelihood and growth of the economy. He said they were decidedly against illegal mining, but there should be no ban.

The Court then asked, if there had been revenue from mining even when international prices were not so high. Counsel answered, yes, it has been the most important revenue earner for Goa for a very long time.

RS Prasad deal for some time showing the Court how intergenerational economic improvement of families and individuals had been possible because of mining employment. He read out some case histories showing individuals employed in mining over three generations. Wealth from mining was making these things possible.

The Court expressed the view that difficulty was the more the growth, the more the concentration of wealth. It was not getting distributed. That was their worry. Situation was not changing.

RS Prasad insisted that workmen have a right to life and it springs from the continued need to earn a livelihood. The right to employment, he said, quoting a judgement, is a fundamental right. The Court queried him: Can any person enforce this right to employment, saying I do not have a job, so give me one? Prasad tried to make a distinction. He said if someone did not have a job, he could not get one as a fundamental right, but if he had a job it could not be taken away from him, and if it was, he certainly could come to ask for it to be restored.

He said made 4 points in conclusion:

a) There was no blasting in Goa, it was very different from Orissa, Chattigarh, Karnataka, etc. So there is no disturbance to wildlife.
b) He asked the Court to ensure that gram sabhas are part of the monitoring mechanism for mining activity because environment is a community resource as is mining for the people in those villages close to the mines.
c) Cap on mine production should not lead to a complete halt of mining.
d) If there is a buffer zone to be fixed around WLSs, let there be a wall built between the WLS and the mining areas so both can live and let live and there are no violations.

He then read several judgements including the Supreme Court's judgement on the Koodankulam nuclear plant case. He said the Court had held that in such a severe case of fears of radiation pollution potential, certain acceptable levels of radiation are permissible because economic activity of supplying badly needed power was more important. He referred to the judgements in the Narmada Bachao Andolan case, the Olga Tellis case on pavement dwellers' rights and other judgements to emphasize his arguments that means of lifelihood is a right to life in itself, that economic empowerment is also a part of Art. 21.

Thus, one also gets to see real life TV personalities performing in Court. Some compensation that!

Senior Adv. Ranjit Kumar took the floor on behalf of Pandurang Timblo Industries (PTI). He first attenmpted to complete the arguments legitimizing dumping outside the lease made by earlier lawyers by calling the attention of the Court to Rule 33 of MCDR, 1988.

He then settled down in the buffer zone and remained there for the rest of the day and the following day as well (that is, 23 October) till post lunch 2.20 pm.

He began by referring to the CEC report on buffer zones dated 21.9.2012, which is the next report on the matter after the order dated 4.12.2006. He said CEC had made 4 categories of buffer zone distances in that report:

WLSs in category 1-3 would have a buffer zone of 100 metres from the boundaries of the WLS.
WLSs in category 4 would have a buffer zone of 500 metres.
WLS in category 5, 200-500 sq km would have a 1 km buffer zone
WLS in category 6, more than 500 sq km would have a buffer zone of 2 km

Amicus curiae in that matter (Adv. Harish Salve) agreed with the CEC on all the categories except for the 200-500 sq km category, where amicus said it should be 2 km (and CEC 1 km).

Union of India reply did not agree with the CEC because it felt the CEC buffer was too little.

Ranjit Kumar, criticising the 10 km buffer zone, gave the example of Sikkim. With a 10 km buffer, 83% of Sikkim would be out of development, including the Sikkim High Court bldg., which was within 10 kms.

The Supreme Court observed: “These are only nightmares.”

(End of Ninth Day Proceedings)

Day 10, October 23 2013

Tenth Day in the Supreme Court of India on the Goa mining case:

Today the Court continued to hear the mining lobby through its lawyers. The Court was hearing representations only from mining lease holders. Senior Adv. Ranjit Kumar carried the whole morning and 20 minutes after lunch as well. After him, Senior Adv. Chander Uday Singh addressed the Court. After him, the Court began to hear Dhruv Mehta, before it adjourned for the day. Mehta will continue his arguments tomorrow on a very important issue lying before the Court: are any of the mining leases of Goa valid or validly operating after 21.11.2007?

Tomorrow, the Court will sit only till 1.00 pm. Hopefully, all the rest of the parties will be heard by then. However, it seems clear that the mining case will spill over into the next week as well. The Court has asked the AG to address it on the tiger reserve issue and some other matters. AG will only argue next week. After that, hopefully petitioner’s lawyer Prashant Bhushan will submit his rejoinder and the matter will go for judgement. It is expected the matter will be over by next week, but one never knows.

It appears from the proceedings that all the senior counsel are arguing on behalf of the petitioner. This is at least is what the AG told the petitioner when they came out of the courtroom yesterday. That trend was continued today largely as well.

Senior Adv. Ranjit Kumar remained focused, throughout his arguments, largely on the buffer zone issue. He started by discussing where is the buffer zone concept located in the Wildlife Act, what is the source of this concept of buffer zone?

His argument: Concept appeared in 2006 by way of amendment and it is only in relation to tiger reserves. Before that, in 2003, the National Board for Wildlife was introduced as a statutory authority. In 2006, buffer zone comes in. In the statement of objects and reasons for the amending Wildlife Act of 2003, it is mooted that you have a conservation reserve (CR) and community reserve. Conservation Reserve is what we are interested in. These CRs rely on section 36 (a) of the WL Act. The State can declare these CRs in consultation with the local community under 36 (a) and under 36 (b), the state is mandated to constitute a committee for monitoring the CR. Hence the Central Govt insists on taking the stand that the buffer zone has to be site specific because the powers are with the state govt to decide the CR.

Then the Court went into section 5 (c) which is the Standing Committee of the NBWL which has powers to make recommendations on protection of areas outside WLSs. The Court now wanted to know whether Goa has a Tiger Reserve and asked the Goa AG specifically to address it on this issue “because we have already given directions for preparation of tiger conservation plans to all states and we want to know what the State of Goa has done about it.”

The argument advanced by Ranjit Kumar was that if the definition of buffer is taken from tiger reserves and incoporated into the section on CRs, it has to be noted that in the TR, coexistence of economic activities is permissible. The argument advanced was that one of the activities of people in the buffer zone is mining activity! The Court said that this co existence, this expression, would refer to activities undertaken by the local population and not mining activities which are carried on by industries for their own purposes. The local population's activities are independent of mining activities and cannot be linked with mining activity.

His next argument was that under the EPA, the Ministry is empowered to issue notifications prohibiting certain activities. And the rules, particularly rule 5 of the E P Rules, empowers them to prohibit activities within the proximity of the sanctuaries notifed under the WLA. The Court queried: “This is a very powerful rule but has any notification been issued with ref to WLSs in Goa?” The Court itself answered the question in the negative. “Has the State Govt made any declarations of CRs under section 36 (a) where it can declare any CRs. No. So then, that is the end of the matter!”

Under these Acts, said the Court, we have no role to play and we do not intend usurping the powers of the statutory authorities, but under Art 21 we have powers and we do not intend to surrender these powers to the Central Govt.

Another observation that Court made was that there is no mandamus to the state or CG to make these notifications. The words used are “may” for notifying CRs, but under Art 21, we are obliged to protect the environment and we shall do so because the Constitution directs us to do so.

The Court said it also went through the Forest Conservation Act and observed that there is no concept of buffer zone in the FCA, but that there is a Forest Advisory Committee which has to be constituted and which must have due reegard to WLSs and protected areas so that its recommendatory powers include minimising the impact of activities on the WLS. Which is why the forms that were shown to the Court (Form A) specifically direct that the distance from the boundary of the WLS must be given by the mining companies.

Counsel argued that under EPA rules, Schedule 1 provides the standards of pollution, which the law permits as the petitioner's counsel used words like “rapacious, rabid and vultures” to describe the mining companies. The Court responded by saying that the standards are prescribed but the rules also say that more stringent standards can be prescribed. A portion of the rules was omitted in 2006 but brought back in 2010, perhaps with higher standards because our technology is also developing and we are also coming to know more about the problems of pollution.

Then the court put it to the lawyers of the petitioners and respondents. We are concerned with 2 issues:

a) For the protection of the environment under Art 21, what stretch can we as the Court go: upto 1 km or 2 km or more than that? We do not want to arrive at via media or an average, but we want to know with regard to mining activity, what distance needs protection from this activity.

b) What is the level of protection that should be fixed?

The Court said if the State had fixed the CR under 36 (b) of the WLI or the CG had issued notifications under EPA, we would perhaps not have interfered today, but they have not done so and the matter is now before the Court. So perhaps we may decide to clarify that until they issue such notifications, we will issue directions to operate in the interim period.

We are concerned with mining because when the State is undertaking an economic activity which it leases out to others bereft of any legislation, we cannot allow it to continue as it affects the environment. We are concerned with this specific activity of mining only.

Counsel said that CEC has given a safe zone of 2 km for Goa, but in Goa no blasting operations take place in mines and since no blasting takes place, the distance may be made less. The Court agreed that it depends on the kind of mining activity and the kinds of machinery used. Some expert must give us information in this regard.

Counsel for Ministry said we have appointed a committee and the report has been submitted but it is with the Environment Minister at present. The Court said, “Tell the Minister if she wants the SC to look at it while passing their order, you must file it before that happens.” Parasaran said he would file the report on Friday or Monday.

Counsel took the Court to the CEC report filed in 2003 where it had recommended 100 metres as the safety zone for the specific mine in Rajasthan and 500 metres buffer for new mines. In 2009, in this Western Hills Foundation matter, CEC report said that the prohibuted distance for Goa was 1 km. It was Goa specific and mining specific. Then in 2012, in the Goa Foundation case, the CEC gave a report which was not mining specific, but buffer zone specific. They have said now the buffer zone is 2 km.

Then he went into the Goa govt's decision which is that there will be a 1 km ESZ subject to the rider that mining activities will be allowed for between 5-10 years for phasing out.

He asked the Court before concluding to clarify two things: that the order of 4.12.2006 has not attained finality; and 2) he asked the Court not to put a seal of imprimatur on the Shah Commission report because we have not been heard in the matter and all the facts are not correct.

After Ranjit Kumar ended at 2.20 in the afternoon, Senior Adv. Chander Uday Singh took the floor for a number of mining leases and also for the Goa Mining Association. The Court expressly asked him not to address it on behalf of the GMA, since it was hearing lessees only first.

Chander Uday Singh raised three issues:

Section 37 violations, where one company or person is mining someone else's lease. He said the Court had already indicated it was not going into this violation since it was for the State Government to take action on those violations. After this was clarified, Singh dropped any further mention of the matter. He went on to raise the buffer zone issue. Court warned him not to raise any individual violations.

Singh tried to persuade the Court not to pass any order on 1 km buffer zone. He said compared with other States, State of Goa had already taken a final decision on 1 km issue and the Solicitor General had informed this Court that the MOEF was going to issue a notification and this notification was just a few days away. Since the MOEF was going to issue the notification, action was not needed from the Court.

The Court reminded him that under Art 21 it had a duty and also the power.

But Singh was undeterred: he pleased with the Court that this is not the right time to issue the directions because the notification on buffer zones for Goa is just days away, end of October in fact.

Justice Nijjar interruppted to say that the issue has been pending for several years and so many times the Central Government has informed us that such notifications will be issued but these are still not happening.

Singh tried to argue that the WL Protection Act is not the Act for buffer zones outside the WLS. This comes from 3 (2) (v) of the EPA. Under WLI, before a WLS is declared, all the area that requires protection is made a part of the WLS and therefore areas outside do not a priori require protection. Everthing is contained in the WLS including the buffer zone. What he was suggesting was that the buffer zone was actually already part of the sanctuary and including within the sanctuary limits when it was notified.

This appears to have annoyed the bench considerably. “Forget about a priori, logic, empirical knowledge, you answer us as a matter of common sense, if the mining is taking place in this Court's area, will it affect the Law Institute across the road?” Counsel Singh said yes. “Then that is enough for us. Common sense tell us the WLSs need a buffer zone.”

The lawyer went on to raise the matter of the renewal of leases and the challenge posed by the Goa Foundation when its lawyer told the Court all mining leases in Goa had expired on 21.11.2007. Singh argued that the matter of whether the concessions could be converted into leases were before a 13 member bench of the Supreme Court, and they had interim relief that allowed them to continue mining. He said that in any case, the leases under challenge here were not renewal cases. They were first-grant cases under Section 8 (1) of the MMDR Act, and not renewal cases under Section 8 (2) of the Act. The first renewal was only coming up now in 2007.

The Court was not willing to agree. It said, we shall pass a judgement in the matter, on the matter of the 1987 Abolition Act and section 8 of the MMDR Act. You can then go to the 13 judge bench and ask for interim relief there. The matter has been brought to our notice. We cannot now ignore it.

Since Adv. Dhruv Mehta came in at the moment and Singh retired, this reporting can only be completed tomorrow. Wait till then.

Day 11, October 24 2013

The Goa mining industry watched in horror today, as both the Goa govt and the Supreme Court agreed that deeming provisions would not be applicable after the “first renewal” of the leases under the MMDR Act, 1957. The Supreme Court was unwilling to be persuaded by the arguments of Adv. Dhruv Mehta who argued that miners had a right to continue mining after filing an application within time for “second renewal” of their leases.

This left the entire industry without a valid lease as of 21.11.2007. Adv. Dhruv Mehta warned that his clients would face severe difficulty if the Court accepted the position since they had bona fidely filed application under an existing rule that enabled them to believe they could continue to mine without a valid lease till the Govt passed an order on their application. This the Court appeared unwilling to consider.

In one flash, all mining leases appeared without the fig of legitimacy.

So what’s left now in these proceedings?

Lots. This is an industry that first emerged in Goa nearly a hundred years ago. During its lifetime within the Indian Constitutional framework, rules under the MMDR Act, 1957 were constantly tweaked under influence of mining actors to enable them to bypass the provisions of the Act itself. The Court expressed its views firmly on these issues today. It told both lawyers and clients:
a) Rules could not be used to undo an Act of Parliament; they cannot be used to interpret and enlarge a section provided under the Act;

b) Similarly, you cannot go to an Act in order to cast a new interpretation of the Constitution. The Court has to go the other way around. Interpret the Constitution and uphold it against Acts of Parliament if required. Interpret the Act and uphold it against the rules framed under them, if required. We cannot go upwards from below. It has to be the other way around.

The Court therefore came to the firm conclusion that the lease holders of iron ore mines in Goa did not possess a valid or subsisting lease since 21.11.2007, when the leases expired.

Seeing which way the wind was blowing, the Goa govt informed the Court that this habit of allowing mines to operate on deemed extension had been patronized by the earlier govt. It had taken the position, in its new mining policy, not to allow deemed extension. Of course, it has not yet conceded fully the point that the leases go kaput after 21.11.2007. It has said for all practical terms it will not accept indeterminate periods for pending applications even while mining goes on. It said the new policy indicated a period of 3 months within which all leases will be decided.

The Court said that filing an application after the first renewal ended did not mean you could continue to dig. You did not have a valid lease.

Mr Dhruv Mehta pleaded, like Adv. Dada before him, that their actions were bona fide. They could not be held accountable if the Goa govt was not renewing their leases. The law entitled them to mine if they filed their application in time.

[This appears to be some sort of a joke. These are very big companies commanding huge resources running into crores, with access to the most highly paid talent in the country. Yet they pretended they did not know the law; they were not aware of judgements on the issue. For example, though there is a Supreme Court order dated 4.12.2006 asking for all environment clearances to get their no-objection from the Standing Committee of the National Board of Wildlife, none of them thought it was necessary to obey and file their applications. They continued mining, mocking the Supreme Court order. If a small, ignorant, uneducated individual made these arguments, one might be disposed to believe him. But such big companies?]

The Court was well aware that deemed extension had become a curse to prevent proper, scientific, mining all across the country. It was well aware that its order on Goa would impact mining elsewhere as well.

When Mr Mehta tried to explain a point by referring to a notification issued by the Central Government, the Court reminded him that he was before the highest court in the land and was he suggesting they go by these notifications (often full of errors) issued by joint secretaries of the Central Government to guide them in interpreting the law?

Mehta tried to get something out of the Court at least on dumps. He said dumps outside the lease were covered by the environment clearance and no EC was required for extracting the ore from them. At least, as of today, the EIA notification of 2006 does not require EC for extraction from dumps.

CEC member secretary Jiwrajka intervened at this stage, quoting sections from the MMRD Act to show how dumps were covered under mining operations, no extraction of mineral was allowed outside a mining lease area, that mining leases had fixed periods, and if one adopted a contrary view, this would mean that anyone, not even a lease-holder, could extract from a reject dump whatever, whenever, wherever he wanted and no one could do a thing.

When the mining companies said that rule 64C of the MCR Rules required them to pay for minerals if extracted from dumps outside the lease, the Court said that if the Act did not allow this, how could the rules?

So the Court appears to have come to the view that when an environment clearance was being granted, it was for mining operations on the lease and not outside the lease. This would bring the Goa dump issue on line with the Karnataka issue, where the Supreme Court has already held that dumping outside the lease was illegal, had fined companies in excess of one crore per ha for such dumps, and cancelled leases which had external dumps in excess of 15% of their lease areas. In Goa, the Salgaoncars, according to the Shah Commission report, had exceeded their lease area by 400% for purposes of dumping. Would they have 400 crores for compounding their violation and still retain their lease? Is this why Shivanand Salgaoncar opened one of these offshore accounts in his name in 2007, as per information provided by the International Committee of Investigative Journalists?

After Dhruv Mehta completed his arguments, a few lawyers addressed the Court on behalf of clients. Dr Prafulla Hede was represented by an advocate who presented Dr Hede’s position before the Court, but before he concluded, he argued for the other side, telling the Court it was not fair if the present generation mined all the ore and left nothing for future generations. Sometimes conscience overrides private interests. Another lawyer tried to justify environment clearances given to the Salgaoncar Mining Industries in the Netravali Wildlife Sanctuary. Then, after all lessees’s lawyers had finished, the Court indicated it would hear the Goa AG on issues relating to the case.

I must say Sushant Nadkarni made a good impression with his brief presentation before the Court adjourned for the day. (It sat on the Goa mining case only till 1pm. today)

Highlights of his presentation:

a) No new extraction till the NEERI report came in (three months time given for this;

b) No mining of lease on the basis of deemed extension

c) No more traders to be allowed in movement and transport of mineral. Only lease-holders will be responsible.

d) No use of land without conversion, etc.

Before the Court rose, Adv. Nadkarni pleaded for the transportation and sale of some 11.8 million tons of ore which had been extracted and which was lying at jetties and leases. He said this would help mitigate the social problem of unemployment brought in by the mining ban.

He will resume on Tuesday, 29th. The hearings will continue till 31st October. If they do not conclude by then, they will resume after Diwali.

Day 12, October 29 2013

Though the Advocate General of Goa (A.N.S. Nadkarni) had commenced his arguments in the final hour of the last date of hearing, he resumed this morning. Since he responded on behalf of the State of Goa, we are reporting the submissions in greater detail.

The AG opened his submissions with two initial statements:

1) that NEERI had been appointed by the Goa Govt to do an audit of all environmental issues for the state of Goa, with emphasis on mining; that NEERI had been asked to give an interim report, preferably within 3 months and that until NEERI gave its interim report, there would be no fresh excavation of ore. This was the commitment of the Goa Govt being made to the SC in the matter.

2) The total prohibition of mining in the state of Goa was creating enormous stress, not only for the govt but more especially for the working class of which he said there were 1.5 lakh affected. He explained that if the mines don't work, those persons directly engaged in mining operations, that is, the workers in the mines, the trucks, barge owners, don't work and their families therefore suffer. Apart from those directly engaged in mining work, there are other ancillary activities consequent on mining including resturants, repair shops, workshops, barbers shops, etc.

The Court stopped the AG at this stage to ask why barber shops had shut down on the stoppage of mining activities, since hair continues to grow whether there is mining or not.

AG: Workers come from out of the State and it is they who patronise these shops, restaurants, and as they have gone back, the shops naturally have less business or close down. He therefore sought a solution in very limited terms, which he urged the court to grant at this hearing. There is already excavated ore amounting to 11.47 million tonnes. An inventory has been done of this ore which is lying at the mining leases and at the river jetties. This ore can only be sold, it cannot be returned to the mining pits, it has no other use except sale and if this ore is allowed to be transported, it would greatly relieve the pressure on the working class. He also pointed out that the mining transportation rules 2013 had been gazetted by the State and there was monitoring right from the pithead until the ore gets into the jetty. It is electronically monitored, so there is no scope for malpractice. Every source of ore carried by the truck will be known to the authorities and the movement in the state will be monitored.

After listening, the Court made two inquiries: a) do you have the staff to carry out this activity which you are assuring us will be done properly? AG's reply: a) it is being electronically monitored and the weigh slips will be pasted on the trucks and all details will be available, and b) staff was being employed by the mines department for the purpose. In principle approval had already been given by the State for recruitment of new staff and some recruitment was on the way and the process would soon be completed.

Justice Patnaik: Have you observed what happens on the road? The truck driver is stopped at a checkpost. There is a discussion that engages the truck driver and the police, after which they shake hands and the trucks moves on. Everyone knows what is going on. This is all done in the open.

The second query from the Court: How long will it take for the transportation of this ore at the jetties/leases?

AG: One mining season, which would be from October to May.

After pleading for permitting to sell the dumped ore, AG went back to his submissions:

He said that applications for renewal of the lease had been filed by the mining companies as required one year prior to 21.11.2007 when the lease period was to expire. He agreed that under section 8 (2) of the MMDR Act. the first renewal period had come to an end. He said at that time, the (Digambar Kamat) govt should have taken a decision in terms of second renewal. However, the govt at that time did not properly consider the renewal applications under 8 (3).

Justice Patnaik: So far as we are concerned, govt is govt. As far as elections are concerned, things may be different, but there is no point in bringing up the failings of the so-called previous govt to distinguish it from the stance taken by the present govt. We treat all govt decisions as one and the same.

AG next summarised the various steps taken by the present govt since the time it had come to power in March 2012 and whilst summarising them, he highlighted certain important steps that had been taken, apart from curbing or taking action on the immediate violations. The significant steps included:

The Goa State mineral policy had been finalised.

The Goa Transportation Rules 2013 had been notified.

The Draft Ecosensitive Rules had been approved and forward to the MOEF for approval and notification.

The Indian Stamp Act was amended to collect dues from the mining companies for the period 2007 onwards when signing their lease deeds.

AG said these were major steps take by the state govt in just the short period period of one year since it had been in power during which time in fact it was faced with all the problems that had been created by the previous govt.

AG next gave a summary of the mining status in Goa, pointing out that the average size of the mining lease is 60 ha, no lease is above 100 ha, while the national average is 250 ha. He explained that out of the 581 concessions granted by the Portuguese, due to various factors, many had fallen by the way (because they did not renew on time etc.,) and now there were some 164 which could be called the surviving mining leases.

To a question from Justice Patnaik about how many were operating out of that, AG replied: 93.

Presently, AG informed the Court, no mines were working in any wildlife sanctuary. One working lease found, that of Antao, had been immediately terminated. (He read out the lease termination order.)

He also said that stamp duty on the leases approved for renewal “in principle” had been collected, and that this was after notice had been issued in this petition.

Court: So it appears that your activity has been triggered by this petition?

AG said that “in principle” orders for renewal of 28 leases had been issued and stamp duties for all collected but the final orders had not been passed.

The Court repeatedly questioned AG about whether any assurances had been given to these companies about the renewal.

AG in reply: these leases had been examined from all angles and were found not to be violating any laws and therefore they could be renewed under section 8 (3) ([that is, as second renewal]. However before final orders are passed, the govt would still examine them in light of the violations pointed out in the Shah Commission report, the PAC report and the CEC report as per govt's understanding of law vis-a-vis these reports.

AG moved on the dumps issue. He first informed the Court that no dumps have been handled after 23.9.2012 (date of circular issued by Kamat govt banning dunp handling).

He said the govt feels that dumps should be allowed for handling because there is some ore there which was once not viable for sale. Besides these dumps are occupying large areas in the state, they can be source of environment problems because they are in agricultural land, they can pollute the water, and, although care has been taken, they can be a source of environment problems and in any case they should be removed.

Therefore the govt has come out with following solution on dumps: which is, the dumps in private lands which were erected without permission of the state authoritieis, they would need to pay conversion charges for use of the land without authority; for dumps on revenue lands, they would have to pay rent for the long period they have occupied govt lands, some for 50 years or so. There would also be a penalty on their use of the land without permission plus conversion charges for unauthorised use of the land.

As for the dumps on forest land: such dumps already stand confiscated and have become property of the govt.

In substance, the present govt has taken a very strict view of the dumping of mining rejects and overburden outside the lease area without statutory approval and purely on the basis of private agreements that may have been made by the mining lessees with surface rights owners. The govt therefore intends to do everything in its power to recover the money owed to the govt for unauthorised use of this land. In this manner the intention of the govt is not just to collect past dues but to return these lands back to their normal use and restore agriculture as per the zoning in the regional plan.

The Court asked whether agriculture was on the increase in Goa and the govt said there were no new lands being brought into agricultural use but large areas were being converted to non-agricultural purpose for big projects and this govt was committed to stop such conversions.

The discussion next shifted to the appointment of NEERI. The Court inquired about why NEERI had been selected and will NEERI be able to do this environment audit for the State of Goa.

AG: NEERI was appointed by this Court in several matters on so many times.

Justice Nijjar said you don't go only on what was done in the past. A lot has happened since those days, we move around, we see things. You cannot appoint NEERI simply because the Court has done so in the past.

Justice Patnaik: My knowledge is that NEERI won't be able to do it. You have to examine whether NEERI is capable of doing the task you intend to have done for Goa.

AG said: We will put the query to NEERI, but the State was confident that it could do it, and the HC had appointed NEERI in several matters connected with mining in Goa.

The Court suggested that Indian School of Mines, Dhanbad, might be suitable but then again ISM may be only having expertise in mining and not on the environment aspects. Let us see what their report/study which they are preparing is all about when it is placed before us.

CEC got up to say that a lot depends on who is appointing the agency for doing the study and more particularly who is paying the money to the agency. He gave an example of a mining lease of Sesa Goa where, when the company had commssioned NEERI, it had said 6 million tons was sustainable extraction. But later on, when the Court had appointed NEERI for a larger mining area, which included the particular mining lease, the reply of NEERI was now 2.5 million tons.

The MOEF counsel, Solicitor General Mohan Parasaran interjected to say there were now two other reports for consideration of the Court:
a) the report on ecozones from Goa's six wildlife sanctuaries and
b) the report of the EAC which had examined the environment clearances given for Goa mines.

Prashant Bhushan interjected to say that a multidisciplinary team with expertise in various fields was required for a proper environment audit.

The AG pointed out that soon after the govt came to power, it naturally took them some to study the situation but since it found a lot of malpractice, it suspended large number of officers including director, etc.

Justice Kalifulla said: You have suspended the directors but what will they do when the rules were not in place? Rules and policies have been notified only now. How can you penalise the officers for the inefficiency of the govt.?

The Court asked about the Justice Khandeparkar committee.

AG: The matter is now referred to the Lokayuktha.

Court: Lokayuktha judge has also resigned so now what will you do?

AG then referred to the 10 km eco-sensitive zone matter and said it is very harsh for Goa because if we take 10 km, then even the High Court and Secretariat would have to moved elsewhere.

Court: But we will not be doing mining activity, so will you still ask us to move elsewhere?

Court reiterated that it was not intending to prohibit all activties in the 10 km zone. It was merely desirous of knowing that those activities would not harm the sanctuaries which the Constitution requires the Court to protect under Art 21, 48, etc. To prohibit people's activities will be difficult for us, but for mining it is different, it is a state activity leased out to people and we can prohibit the state from leasing out if there will be damage to the environment.

On the proposal of the Goa govt to allow some mines 5-10 years relaxation, so that they could be phased out gradually and people would not suffer, the Court said: “Once you don't stop, it will never stop. If you allow it to continue for whatever period, it will never stop. Nothing gets closed gradually. Interests develop and the period for the activity to continue simply gets extended. The mines have been closed for a year now. Restarting them would be a bad idea. Secondly, if you allow phased closure, in the interim enough damage will be done. We are conscious that some of the mine lease holders will be affected but this can't be helped. We are not stopping any of the shops or any of the other so-called activities which were created consequent to the mining activities. We are only stopping the mining activity.

AG pointed out that the MOEF has already uploaded a notification on the website and they also agree that mining can't be stopped immediately. So between the State and the MOEF, we will be able to arrive at a phased closure.

The court said, the MOEF, we are sorry to say, will not be able to do anything. They are empowered to do it we agree, but our experience is they will not do anything.

Court asked the AG specifically: “How do you propose this phase out? In what way are the mining activities going to be phased out?”

AG: They will give a mine closure plan.

Court: So the mining activity will continue until the closure plan comes into operation?

There are no response to that from the AG. He merely said we can decide on the term of the period they are allowed to operated.

Court: We are happy when you said at the start of your submisions that you agree that there is no deemed extension or deem operation and you agreed that the mining leases had effectively come to an end in 2007. You also said you have come out with a new mining policy. Therefore, now is the time to shape your new policy and to show that you can implement your ideas. If you are going to allow these activities to continue in any area where your mining policy itself prohibits them, then the same old system will continue. Admittedly, renewals have not been granted under 8(3). Therefore this is the time to make a fresh start. We know that as a democratically elected govt you are under pressure from the various interests in mining. Thankfully we are not under that pressure. We are not very much convinced of the schemes you have in mind for phased closure and phased mining. All that we say is this is the time when the leases are non-existent and you can implement and make a new start.

Because of the limited time you will grant for phasing out mining, there will be a vehement approach to mining and great damage will be done in that short period which will be irreparable.

The AG said there are human settlements in the areas adjacent to the wildlife sanctuary and that resettlement will also come into force.

Justice Kalifulla: We have seen the wildlife sanctuary maps attached to your submission doument and there are not many settlements compared to other sanctuaries we have seen. You can easily do resettlement between a period of years.

Justice Patnaik interjected: We are not stopping or halting settlements or activities. So you should not go away with the impression that you straightaway move these people from these areas because this is not being passed by us.

He also said: One km is not such a big distance. Even if people are employed on the lease, they can easily walk to the area outside 1 km. People walk such distances every day.

(This is a report of what happened in the Supreme Court during the hearing on the Goa mining case. It is not a press note or a press release issued by the GF.)

Day 13, October 30 2013
Missing, will be updated.

Final Day - Day 14, October 31 2013

The 14 day long hearing of the Goa mining case filed by the Goa Foundation in the wake of the Justice Shah Commission report concluded today at 1.00 pm. The Court has reserved its judgement.

Prashant Bhushan argued for the petition till 12.10 pm, after which Senior Counsel Harish Salve addressed the Court as Amicus Curiae on behalf of the CEC. Finally, for a short spell of time, the Karnataka Steel Manafacturers' Association made a plea that if the Court was considering allowing the movement and export of 11.60 million tonnes stacked at jetties/leases from Goa, they were opposing the export since they wanted the ore for their own steel mills. To which Adv. Mukul Rohtagi responded that if the Association was willing to pay the price the Chinese were paying for it, they were welcome to have it.

The Court fixed 11th November 2013 for passing an interim order relating to constitution of a monitoring committee for overseeing sale of the iron ore stacks at leases and jetties. It would also consider the report of the Indian School of Mines report on the same day and constitute a multidisciplinary committee, if required, to advise the Court on what should be the cap for mining production in Goa considering the demands of the environment and the demands of intergenerational equity (IE). Goa Foundation submitted a list of names for the CAP committee. The Court has requested others including the Goa govt to suggest names as well.

Adv. Prashant Bhushan resumed his rejoinder by taking up the issue of dumps outside the mining leases which have been encroaching on revenue lands, private properties and causing enormous environmental damage as the dumps have been hastily erected owing to the large-scale mining. There are no proper safeguards and the run off from the dumps is polluting the waterways and the fields. He referred the Court to the photographs which had been annexed by the petitioner and shown to the Court in the earlier submissions. The river water was red with mining dump rejects. He pointed out that the dumps are in the region of approx. 750 million tons and they are occupying an area of 2200 ha. These overburden dumps (OB) are not stacks of ore but mining companies now want to dismantle these dumps solely for the purpose of removing the ore at the bottom of the dumps. The question however of handling these dumps must be seen in the context of rehabilitation of the mines. The mud from these OB dumps needs to be put back into the huge mine craters which have to be refilled. He pointed out that if the mud from these OB dumps is sent back to the mines this would generate adequate employment for those dependent on mining at least for the next 20 years. People would be employed, trucks would be employed and the OB dumps would be dismantled and mining sites would be rehabilitated.
To a query from the Court as to where the money is to come from for this work, he referred to the request of the state govt to sell the 11.60 million tonnes of ore lying at the jetties and leases and that the money from the sale of the e-auction of this 11.60 million tonnes should be credited to the state account and could be used to finance this activity of returning the OB dumps to the mine sites. He also said that this is a requirement under the environment clearance, that the mines are rehabilitated, that back filling is done and that the sites are filled up prior to full rehabilitation.
The handling of these dumps for mining ore had to be with the necessary environment clearance.

He next took up the issue of capping of the annual production of ore and the principle of intergeneration equity (IE). He stressed that the capping was required to give meaning to IE and that 100 years (three generations) suggested by the petitioner was in fact a compromise as in reality IE principle should extend to several more generations. He also said that the mining companies are doing business to look after the several generations of their own families and providing for them, but this is how they interpret intergenerational equity!

The Court said we have to look after the needs of the present generation. To which the counsel for petitioner agreed, but said this must be in turn meet with carrying capacity of the land and protection of the environment.
Therefore he said a cap must be fixed to take care of both, carrying capacity and IE. The suggestion for the cap must come from experts who will look at ...... (At this stage, he submitted the list of experts suggested by the Goa Foundation for the CAP committee.)

The Court expressed it was keen to ensure that there is a cap fixed for the mining of ore which will ensure that IE is meaningful.

Bhushan then linked this to the issue of export of ore, which he said was a natural corollary to the IE principle. And that the 11 million tonnes of ore which is sought to be sold should first be used to meet the needs of the country. He said export would compromise the implementation of any measures under IE.

The Court however said these were policy matters which the state govt/central govt can take a decision on and it would not like to interfere and pass orders or directions in this area, keeping in mind the separation of powers.

Mr Bhushan next strongly urged the auction of the leases pointing out that the MMDR Act does not absolutely forbid the auction of mining leases and very clearly states that no preferential treatment needs to be given to the previous holder of the lease since section 11 (4) very clearly states that no matter on what date the application for the lease is made, all the applications are to be treated as of the same date and thereafter proceeded upon.

Here again the Court pointed out that prima facie it was of the opinion that all leases had come to an end as of 2007. Once that is the case, it is entirely the discretion of the state whether or not to grant the renewal of a case under section 8 (3). Why should we give directions as to how the State is to proceed in this matter without the State first deciding whether to renew leases under Section 8 (3) and to provide special reasons for the same? Let the state first take the decision. You can always come back to us. You can always challenge any decision if it is not in conformity with our judgements on natural resources. For the present, we will not say anything on it.

Petitioner's counsel next raised the issue of the connivance and collusion of the political class with the miners and the need for an independent authority to regulate mining activities in Goa. The Court observed that the petitioner had indeed made a prayer for such an authority and therefore it would consider this submission. Counsel pointed out that the state's submissions as to what it intended to do now that it had a new mineral policy in force was completely unrealiable as actions taken in the past had been given up a few months later. The Justice Khandeparkar Committee had been disbanded after a few months without any work being accomplished. Complaint had been filed with the Lok Ayuktha. Presently there was no Lok Ayuktha in the state. FIR had been filed against some persons, after more than one year of the present govt being in office. Complaints had been filed with the crime branch but no persons had been named. No action was taken against any mining companies or their directors. The AG intervened to say that after the High Court had passed an order for the FIR to be lodged, several mining companies had moved the Supreme Court and had received ex-parte stay of the direction. The FIR now filed by Goa govt was moreover different from the one mentioned earlier.

The only action by the state govt that was being tomtomed was de-registering 400 odd traders and reducing their numbers to 47. But even in this case, there was no action against the traders who have all gone scot-free and most important illegal trading could not have occurred without illegal mining.

Mr Bhushan strongly emphasized the absence of capacity of the Goa Mines department to regulate mining and prevent illegalities as it is grossly understaffed and is unable to carry out even routine work. The Department of Mines and Geology, Government of Goa, is grossly understaffed to carry out routine work leave alone regulating mining and preventing illegalities. There are in fact on date no senior-grade technical personnel presently in employ. Posts which required technical know-how of mining have been abolished, senior vacant posts have not been filled. The department is under the charge of civil service cadre with no expertise in mining. In a reply to un-starred question in the State Assembly on 11/10/2013, the minister of mines said that the total staff strength of Mines and Geology department was 78 Nos. Many of these are peons, clerks, assistants and typists. This is certainly not enough to regulate 100 odd working iron ore mines, another 300 odd major mineral leases and 200 odd minor mineral leases related to laterite stones and river sand. If even 20 new persons are recruited, there is no space to accommodate them in the present premises, let alone 300. Since bulk will be raw recruits, a minimum of one year’s training will have to be undergone if they have to learn to deal with mining companies and lease-holders who have mined without regulation and fear of authorities for some 50 years. Several staff are under investigation.

He then dealt with the submissions made on behalf of the 33 village panchayats which had stated they were strongly in favour of resumption of legal mining. He referred to the State of Orissa which had been claimed in the case of the Niyamgiri Hills mining project of Vedanta that all village panchayats were in favour of the mining project. However, when the Court directed that the opinion of the people be ascertained at a meeting presided over by an ex-judge, the verdict was unanimously against the project in all 12 villages that were consulted. Panchayats can be bought. They are merely 5 people and mining companies can put pressure on them. But the pinion of the Gram Sabhas is a totally different matter and they having suffered the consequences of mining, are strongly opposed to mining at it has been carried out till now.

In his rejoinder to the economic data made by the AG for the state of Goa, Mr Bhushan referred to some tables in the rejoinder submissions, pointing out that it was only in 2 years -- from 2010-2012 -- that the mining department's revenue receipts comprised approx 20% of the total revenues of the State. Earlier it was always between 2-6%.

Over an 8 year period, the excess profits of the Goan iron ore industry was Rs. 27,563 crores. Over the last 4 years, i.e., from April 1, 2008, the total revenues are estimated at Rs. 62,256, and the excess profit at Rs. 21,257 crores. Over this period, the excess profit alone is greater than the revenue receipts of the Government.

He took on the claims of “unemployment” caused by the mining ban. The claim that “thousands of people” became unemployed in Goa due to mining closure is vague and made without basis or statistics. Figures provided for employment due to mining are indiscriminately flouted, from 50,000 to 3,50,000. Govt of Goa recently scaled down its figures of persons affected to 50,000 directly affected and 1,50,000 indirectly affected (in a representation to the Planning Commission which is posted at the PC's website.)

NCAER, in a study commissioned by Goa mining industry, estimates mining employment of 30,000, and total indirect employment dependent on mining (trucks and barges) at 45,000. However, the 2005 Economic Census in Goa showed only 6,573 mining employees. Further, in 2009-10, Sesa Goa only had 3,891 employees, while it accounted for over 1/3rd of the Goan iron ore industry – as well as operations in Karnataka, and other activities like pig iron, ships, etc. Adjusting for all these, the estimated direct employment in mining works out to 5,416.

The Labour Bureau’s annual Employment-Unemployment Survey conducted in 2011 (prior to the mining ban) reported that Goa has the highest unemployment rate (17.9%) among the states of India. This works out to around 104,106 persons unemployed.

If the claim of the Goa govt is true, we would expect a massive upsurge in unemployment. This is not borne out in the official statistics. In a reply in the legislative assembly in Mar-2013, the Labour and Employment Minister put the total unemployed at 1,13,277 as on January 31, 2013, or a marginal increase of 7,171 persons since 2011. Similarly, MNREGA data accessed as of 26-Oct-2013 shows that only 1,626 households have demanded employment in Goa under MNREGA for 2013-14.

In a reply to un-starred question 3385 in Lok Sabha on 30th August 2013 Minister of Mines stated that the total Manpower in Mining Sector (excluding fuel, power and minor minerals) in Goa was 8000 in 2011-12, 7000 in 2012-13(P) and 3000 in 2013-14(P). Thus the total employment in mining is less than 1% of Goa population of 15 lakh.

Prashant Bhushan concluded his rejoinder by reading the prayers in the petition:

This Court may be pleased to determine all mining leases in the state of Goa involved in extraction of iron and manganese ore on grounds of operating outside the law, numerous illegalities, violations of Supreme Court’s orders, questionably granted ECs, violations of environment, forest and mining laws and regulations. It is clear from the proceedings till date that the entire mining scenario as it has unfolded before this Hon’ble Court is an unmitigated mess and cannot be salvaged piecemeal except by cancellation of all leases involved and starting on a clean slate.

This Court may also be pleased to issue a declaration that all leases in Goa have expired from 21.11.2007 after period of first renewal ended. No “deemed extension” status is therefore available to the mining lease holders after that date. This will enable the Govt of Goa to commence a fresh mining chapter in the State leaving the past behind.

This Hon’ble Court may be pleased to direct the MOEF/State of Goa to cancel all ECs/mining leases that fall within the ecologically sensitive areas of Western Ghats as identified as a no-mining zone by the two committees appointed by MoEF itself: 1) the WGEEP (Gadgil Committee) report and 2) High Level Expert Group (Kasturirangan Committee) Report. In Aravalli case and Doon valley case (1989 Supp (1) SCC 504), it was on the need to preserve ecologically rich areas and forests, that a complete stoppage of mining was ordered by this Hon’ble Court. For future, these areas be declared as a no-mining zone, and no fresh lease be granted in these areas. Explicit provision exists under Section 4(A) of the MMDR Act for cancellation of leases on environmental grounds. In the Bellary mining case, this Court has held it can determine leases under Article 32

This Court may direct the authorities to cancel all mining leases that are located within the Madei and Netravalli WLS. This Court may be pleased to direct closure and cancellation of all mining leases within 2 km safety zone of the boundaries of WLS with immediate effect. Similarly, this Court may be pleased to direct that no mining lease will commence operations without the NOC of the Standing Committee of the NBWL. All these simple and direct orders of this Hon'ble Court have been flouted by respondents.

This Hon’ble Court may lay down that the principle of intergenerational equity demands that iron ore reserves must last at least a 100 years. This Court may be pleased to direct that no mining will resume in the State of Goa till an expert body carries out a macro-EIA study and is able to arrive at a reasonable cap on extraction/production of iron ore keeping in view the above principle of intergenerational equity.

Since exports of fast depleting iron ore reserves are inevitably linked and have a negative correlation with the demand for intergenerational equity, this Court may be pleased to impose a prohibition on export of mineral ore from the State of Goa to foreign countries. Justice Shah Commission has also recommended a ban on export of iron ore. The ban on iron ore exports that is operating in the State of Karnataka under the orders of this Hon’ble Court, ought to be extended to the State of Goa.

No leases may be granted without transparent procedure and competitive bidding for maximum revenue to the public exchequer as per the decisions of this Hon’ble Court in its judgement in the 2G scam and Presidential Reference. Justice Shah Commission has also recommended that all leases be given by auction, which would ensure transparency, competition, objectivity and would ensure maximum revenue for the state.

This Court may direct CBI/SIT to investigate all offences connected with the findings of the Shah Commission Report and the CEC Report and take further action as per the findings and after proper investigation. CBI investigations in the State of Karnataka, which were ordered by this Hon’ble Court, have unearthed massive scams, wherein several chargesheets have been filed, several ministers, politicians, officials and mining barons have been arrested. Similar extensive investigation is required in the State of Goa, where the Goa government has admitted that rampant corruption has prevailed in the mining sector for the last several years, however, commensurate actions are yet to be taken. Specific CEC recommendations made in its Interim Report dealing with specific issues be accepted by this Hon’ble Court. There is no Lok Ayuktha as the present incumbent has already resigned. All illegal wealth accumulated by mining actors must be disgorged and persons prosecuted.

This Hon’ble Court may direct that evaluation of environmental damages caused by mining activity both within and outside lease areas with adequate rehabilitation plan should be scientifically done with the association of such agencies as the Centre for Environmental Management of Degraded Systems (Delhi University), which has considerable specific experience in restoration of degraded mining areas. Similarly, assessment of damage to ground water aquifers, catchment areas and water reservoirs from mining extraction activity be probed by the Central Ground Water Board in view of CEC recommendations. The Berlin II Guidelines propose association of experts who can deal with environmental problems generated by mining operations and not leave this to lease-holders themselves.

State of Goa may be directed to confiscate the ore (not dumps) lying at jetties, stockyards and leases which has been illegally extracted during period of deemed extension. The Govt says the figure of these stocks is nearly 12 million tonnes. Press releases by mining companies immediately after the ban stated these stocks to be in the region of 50-53 million tonnes. CEC may be directed to ensure e-auction of these stocks and put the proceeds in the Goa Govt exechequer.

Keeping in view the persistent failure of the MoEF in protecting environment, its collusion with the mining industry, conflicts of interest, the reckless manner in which clearances have been given, the non-implementation of conditions of the clearance, and its lack of independence from the other wings of the government that promote mining activity, this Court may be pleased to direct the constitution of an independent authority for EIA/EC independent of government and the mining companies. Such a body would include experts in ecology, environment and sustainable development and CEC. The process of environment impact assessment would be carried out by agencies appointed and selected by this expert body, and expenses would be paid by the project proponent, instead of the current system where the project proponent exercises significant control over the EIA process and report. This relief further elaborates on the directions of this Hon'ble Court in the Lafarge judgement.

In short, this Hon’ble may direct that all the present mining leases in the State of Goa be terminated, fresh leases be given by a transparent process of competitive bidding (auction) in non-ecologically sensitive areas which would then apply for environmental clearances from an independent regulatory body and operate their mines subject to the principles of inter-generational equity.

After Prashant Bhushan had completed his submissions at 12.10 pm, Senior Counsel Harish Salve appeared for the CEC and submitted a written note of 10 pages which he read. He said that he was going to mainly refer to the issues in this case in so far as they involved the EPA and the Forest Act.

He supported the need for an independent environment regulatory authority made by Prashant Bhushan the previous day. Apart from Article 32, where the Court has the duty to protect the environment, under 3 (3) of the EPA the Court can issue a mandamus as it is has done in the Vellore tanneries case. In 3 (1) of the EPA, the Ministry has the duty to protect the environment which it is already cast upon to do under 48 (a) of the Constitution (Part IV). It is therefore a power coupled with a duty. The moment 3 (1) is read as the duty, 3 (3) is the machinery for enforcing 3(1). Therefore when the Court finds that the Central Govt has not carried out its duty under 3(1), it must direct them to take the necessary steps envisaged in 3 (3). This can by no means of the imagination be called “judicial overreach”.

He also ruled out that the proviso to Section 4 of the MMDR Act, excluded the Goa leases from the purview of the Act or some of its provisions. He said this provision applied only for the situation prior to the Act. The Act itself very clearly said from the date of assent, they were all now deemed leases under the Act and therefore the Act in its entirety was applicable to them.

He then referred to the recent Vishwanath Anand committee report, serious violations in the ECs based on wrong information, false information, ECs in violations of Court's orders, excess production, unauthorised dump mining, etc and that the Court must take a strict view of these violations because the MMRD Act and all environmental laws apply to Goa since 1987.

He submitted that ex-post facto forest clearances must come to an end. There is no question of regularising the illegalities on the ground that huge investments have been made, or people will go unemployed, as it only reinforces the illegalities. We emphasize that mining has been prohibited not just within the sanctuaries but in 1 km zone around the sanctuaries and request the Court to direct and clarify that in such areas, mining is prohibited and all statutory approvals including ECs must be revoked in all such cases.

He castigated the MOEF for its decision/proposal to permit mining within 1 km “for the next five to ten years” as being contrary to the Hon'ble Court's order and said that no one can take liberties with the SC's orders, not even the MOEF. If there is any party aggrieved, let them approach the Court first, but such decisions should not be taken by the MOEF if they violate the Court's order.

While referring to the 10 km issue, he said that the MOEF has taken the correct decision that all ECs whether pre 4-12-2006 or post 4-12-2006 must be placed before the NBWL and he requested the Court to issue a clarificatory order and direction that the 10 km buffer zone would apply.

He said that there has been serious violation of the Forest Conservation Act in Goa as mining leases with forest on them have been operating without obtaining forest clearances on the ground that the mining operations are not on the forest portion of the lease. This is totally wrong he said. The Ministry has made it clear that the EC and FC must both be obtained in cases where forest is part of the lease area and mining plans are approved for the entire lease area, yet mining has commenced without the forest clearance and only on the strength of the EC. In the light of such malpractices he requested the Court to direct that ECs will become effective only after grant of approval under the FCA.

On dumps, he was categorical that mining operations can be conducted only in the leased area and mining of minerals from OB dumps outside the sanctioned lease area is not permissible. If the lessee intends to explore the OB dumps in order to locate the ore therein, such activity is considered as mining and therefore all the laws including obtaining EC will apply. In future the OB dumps must be located within the leases themselves and if they are to be outside the leasehold then the EC and the mining plan must provide for the same and all statutory permissions also secured.

On the excess of ore that has been mined in Goa from 2007 to 2011, he suggested that the Court may direct the State to first ascertain the lease wise details of ore produced from the returns that have been filed qua the details of ore exported and that the Chief Secretary be made responsible for carrying out this exercise as recommended by the CEC.

He supported the appointment of an expert committee to consider what should be the cap for total annual production of ore in the State of Goa. The Court asked whether the suggestion of the Goa Govt of 45 MTA should be referred to this Committee for consideration, to which he replied in the negative and said let the Committee arrive at its own findings – the State can always depose before the committee.

On the large scale encroachments observed by the Shah Commission he suggested that the procedure followed by the State Govt for the DGPS survey that it was carried out following due procedure be verified by the CEC who should file its report before the Supreme Court.

On the sale of 11.6 MT of ore which the State Govt has requested be permitted to be sold, the Amicus suggested that the procedure to be followed should be that a committee (on the pattern of the Monitoring Committee constituted for Karnataka) be made responsible for verifying the stocks at the various locations, sale through e-auction and the proceeds of the sale to remain in the custody of a Nationalised bank and be released only after a final decision is taken regarding the legality of this iron ore and the Court approves of the same. The Monitoring Committee may comprise: a senior officer of the Mines Dept, Dr. U.V. Singh, member, Monitoring Committee of Karnataka and the Addl. PCCF, Regional Office, MoEF Bangalore.

He also adverted to the issue of depletion of water in mining areas and suggested that as a rule mining below ground water should not be permitted and only as an exception it may be allowed provided it is conclusively established that such mining will have no adverse effect.

Finally, he supported the request of the petitioner for a strong and independent monitoring mechanism to ensure that the conditions on which statutory approvals for mining are granted are strictly ahered to and do not remain only on paper. Mining operations may be permitted to be resumed only after follow-up action on the Vishwanath Anand Committee is completed, macro-EIA study is completed and decision taken thereon, lease-wise R&R plans are prepared, all statutory approvals are obtained and the details of legal production qua exports and local sale is verified. The court may therefore fix a time limit for these exercises to be carried out and may also direct an interim report to be filed on the sustainablity / cap issue so that some mining operations can be permitted to start in the interest of providing employment to the mining-dependent people. He proposed that the State be declared as receiver for the mines, that some mining be allowed to resume, that monies generated could be deposited and the money disbursed later on.
The court said that what is important is that the message must go loud and clear to all that “sub kuch chalega” is no longer acceptable.

(This is only a report of the Court's proceedings and does not purport to be a press release from the Goa Foundation.)