Common Cause Judgement and Mining Issues in India
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.
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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