Common Cause Judgement and Mining Issues in India

11072020   
Rajesh Deoliya
[rajeshdeoliya@gmail.com)


IN the eyes of general public and environmental activists the mining operations are not only environmentally unfriendly but time to time they are found to be non-complaints too, attracting public outcry coupled with frequent agitation and litigation. On April,2014 Supreme Court took up the civil writ petition filed by "Common Cause" an organization working towards public cause. The petition highlighted the illegal mining carried out for mining of Iron Ore, manganese Ore in Keonjhar, Sudergarh and Mayurbhanj district of Odisha state. 

The SC gave its decision on 2nd August,2017 and in the starting paragraph commented that "The facts …. suggest a mining scandal of enormous proportions and one involving megabucks. Lessees in the districts of Keonjhar, Sundergarh and Mayurbhanj in Odisha have mined iron ore and manganese ore, apparently destroyed the environment and forests and perhaps caused untold misery to the tribals in the area…". Earlier, much before the Common cause petition SC was considering the mining related violation because in year 2009 one Mr Rabi Das  while hearing in the another writ petition in SC  i.e T.N Godavarman vs Union of India sought directions from SC for conductance of fact finding study of the illegal mining in Keonjhar, Sundargarh and other districts of Odisha and to take effective and appropriate action to ensure closure/stoppage of all the illegal mining activities in the concerned areas and direct prosecution and punish all those found guilty of this illegal mining in violation of the Mines and Minerals (Development and Regulation)  Act, 1957 (MMDR), Forest (Conservation) Act,1980 (FC) and other relevant laws. The apex court appointed, Central Empowered Committee (CEC) on 26th April,2010 submitted its interim report with following important observations:

1. MINING IN AREA WHERE DEEMED APPROVAL CLAUSE IS APPLICABLE:

Deemed approval clause applies on mining leases where the ML holder has applied for renewable for mining lease but government has not conveyed its approval nor rejected. Since the Mineral Concession Rule,1960 permits mining in areas where deemed approval clause is applicable, the CEC observed that the said Rule 24-A(6), MCR, 1960 does not authorize the lessee to operate a mine without the statutory clearances/approvals. Therefore, in respect of a mine covered under the ‘deemed extension’ clause, the mining operations  should be permitted to be undertaken in the non forest area of the mining lease only if

(i) it has the requisite environmental clearance;

(ii) it has the consent to operate from the State Pollution Control Board under the Air  and  Water Acts;

(iii) Mining Plan is duly approved by the competent authority; and

(iv) the NPV for the entire forest falling within the mining lease is deposited in the Compensatory Afforestation Fund. The mining in the forest land included in the mining lease should be permissible only if, in addition to the above, the approval under the FC Act/TWP has been obtained.

 2.  THE PAYMENT OF NPV FOR FOREST AREA:

CEC observed that the these districts the mining is going on in forest area and no forest land can  be leased/assigned without first obtaining the approval under the FC Act, therefore SC while permitting grant of Temporary Working Permission (TWP) to the mines in Odisha and Goa has made it one of the pre-conditions that the NPV will be paid for the entire forest area included in the mining leases.   This also included areas where  mining leases are situated in deemed to be forest areas (DLC Forest)

3.   THE COMMON CAUSE WRIT:

Based on the observations of interim report of CEC and report of MB Shah commission; the common cause filed a writ petition on plea that several lessees are operating in Kaeonjhar,Sundargarh and Mayurbhanj district of Odisha  without clearances under the Environment (Protection) Act, 1986 and the Forest (Conservation) Act, 1980 and without renewal by the Government. Hence, an interim order needs to be passed in respect of these lessees who are operating the leases in violation of the law. which was first heard on  21st April 2014. Meanwhile, the CEC submitted its final report on 25th April,2014 in SC. Hence the SC took note of writ and broadened the scope of CEC.

4.   THE FINDINGS OF CEC IN FINAL REPORT:

The CEC in its final report found that there are 182 mining leases of Iron Ore and Manganese ore with or without various types of clearances and permissions/ approvals These are summarized below:

Types of approvals/permissions

Number

Court Observation

ML With no EC,FC, Consent to Operate (CTO), Approval of Mining Plan,

102

Suspension of Mining operations and to obtain necessary permissions

ML Lapsed

29

 To  obtain necessary permissions

ML with EC,FC,CTO, Approved Mining Plan

56

Out of these 30 were allowed to work by court remaining 26 were not allowed to work on the ground that  the provision for a second or subsequent deemed renewal was not available in view of Section 8(3) of the MMDR Act. After amendment of MMDR 2015 these 26 ML were also allowed.

Total

182

 

5.  EXCESS MINING WITHOUT ENVIRONMENTAL CLEARANCE:

 According to the CEC, excess mining without environmental clearance or beyond what was authorized by the environmental clearance is 2130.988 lakh MT of iron ore and 24.129 lakh MT of manganese ore making a total of 2155.117 lakh MT of iron and manganese ore. This does not include extraction of ore without forest  clearance. These figures give an indication of the extent of excess or illegal or unlawful mining carried out

In terms of rupees, according to the CEC the total notional value of minerals produced without an environmental clearance or in excess of the environmental clearance, at the weighted average price of minerals as proposed by the Indian Bureau of Mines comes to about Rs.17091.24 crores for iron ore and about Rs.484.92 crores for manganese ore making a total of Rs.17,576.16 crores. Again, this does not include mining without forest clearance.

6. THE EFFECT OF MINING WITHOUT PERMISSIONS:

A permission or clearance for mining operations clearly document the legal, commercial and Socio-economic impact of the project and list all the compliance which the mining lease holder has to follow. In the absence of such permissions and clearances due to deemed approvals, absence of environmental clearance, forest clearance, everybody except the mining lease holder was at great loss. Some of the major effects are mentioned below.

6.1 Displacement of tribal:

The Keonjhar, Sundargarh and Mayurbhanj districts are tribal belt. The illegal mining operations failed to take in to account the adequate land compensation to them and rather displaced them to stay in pathetic and miserable conditions in same area. The land dealing in tribal areas are protected by law which were greatly ignored.

6.2 Air Pollution:

The unscientific mining and absence of environment management plan has resulted in the air pollution. The SC records that there is rampant air pollution with the trees having the colour of minerals making it clear that tribals are forced to breathe polluted air and drink polluted water.

6.3 Water Pollution:

The illegal mining did not take care of natural drains therefore streams and ground water in the mining areas are polluted. There is no provision for water conversations, recharge structures resulting in declining water table. The MB Shah commission reported that  in these areas women have been seen fetching water from dirty nalas. Mining companies and beneficiation plants are drawing water from rivers and nearby water resources are getting depleted at a fast rate. The river Baitrani has been seriously affected by this activity.

 6.3 Lack of basic Facilities:

The continuation of mining operations in deemed approval clause resulted in lack of basic infrastructure in the mining areas. Basic facilities such as medical facilities, shelter/residence and education facilities are absent. Roads have a heavy flow of traffic and on one road of the area about 7000 trucks passed during night time. The legal mining operations follow CSR norms which help in development of at least some infrastructures.

7.0  ADHERENCE TO THE MINING PLAN:

The apex court observed the instances where the mineral production was above the approved mining plan. It was contended by Ministry of Mines that a mining lease holder could mine 20 percent in excess of the annual mining plan. The court observed that it would lead to an absurd situation where a mining lease holder could extract the entire permissible quantity under the mining plan plus 20% without any reference to the EC. Study of Indian Bureau of Mines for production and violation for 104 mining leases of bulk minerals of ten years in Odisha found that in 71 cases there was excess ore produced beyond the reasonable variation limit of 20%. The court noted that this was partly due to the failure to restrict the movement of minerals. It was reiterated that transit passes to such mines should not be issued by the State Government so as to stop any additional outgo.  

8.0  ENCROACHMENTS:

Since the mining activities has to be carried out in the area granted for the mining lease.  Therefore, any person carrying on mining operations without a mining lease is indulging in illegal or unlawful mining. It implies to a mining lease holder also if he mines outside the mining lease area. The CEC identified that 82 mining leases for iron ore and manganese ore were in  encroachments in the form of illegal mining pits, illegal over-burden dumps etc.

9.0  ILLEGAL MINING AND PENALTIES:

The MMDR Act prohibits mining in any area other than the mining lease that too in accordance with the approved mining plan and any breach in that terms and conditions amount to violation and illegal mining and worth to be penalize. The court observed that there can be no compromise on the quantum of compensation that should be recovered from any defaulting lessee – it should be 100%. If there has been illegal mining, the defaulting lessee must bear the consequences of the illegality.  The CEC inferred that due to illegal mining operations the government of Odisha has suffered loss of about 61,000 crore.

10. CONCLUSION:

The Common Cause judgment has helped bringing amendments in mining acts and rules to avoid violations, illegal mining and promoted scientific mining. The use of satellite imageries, well marked and pillared mining lease boundaries with the help of DGPS,GPS Tracking system for mineral transportation, Online transit pass generation systems, grant of mining lease for 50 years instead of earlier 30 years are some of them. However, much more is required as still in some cases like sand mining prevention of illegal mining and violations are recurring and leading to conflicts.

 

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Comments

Anonymous said…
Researched thoughtful views. However noncompliance of Courts /NGTs order is a big ground zero reality.
More information got regarding illegal mining, satellite imaganary help to find illegal mining,but where the mining lease not granted to leasee,govt should drone survey the area & penalties to those ,who involved in illegal mining..

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