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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL /APPELLATE JURISDICTION
& CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 562 of 2009
Samaj Parivartana Samudaya & Ors. ... Petitioner (s)
Versus
State of Karanataka & Ors. ... Respondent(s)
WITH
SLP (C) Nos.7366-7367 of 2010, SLP (C) Nos.32690-
32691 of 2010, WP (Crl.) No.66 of 2010, SLP (C)
Nos.17064-17065 of 2010, SLP (C) No……(CC No.16829 of
2010), SLP (C) No……….(CC No. 16830 of 2010), WP (C)
No.411 of 2010, SLP (C) No.353 of 2011 and WP (C)
No.76 of 2012
J U D G M E N T
RANJAN GOGOI, J.
W.P. (C) No.562 of 2009
1. What should be the appropriate contours of this Court’s
jurisdiction while dealing with allegations of systematic
plunder of natural resources by a handful of opportunistsPage 2
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seeking to achieve immediate gains?
This is the core
question that arises in the present proceeding in the context
of mining of Iron Ore and allied minerals in the State of
Karnataka.
2. Over exploitation, if not indiscriminate and rampant mining,
in the State of Karnataka, particularly in the District of
Bellary, had been purportedly engaging the attention of the
State Government from time to time.
In the year 2006,
Justice U.L. Bhat Committee was appointed to go into the
issues which exercise, however, did not yield any tangible
result.
Thereafter, the matter was referred to the Lokayukta
of the State and a Report dated 18.12.2008 was submitted
which, prima facie, indicated indiscriminate mining of
unbelievable proportions in the Bellary district of the State.
It is in these circumstances, that the petitioner- Samaj
Parivartana Samudaya had instituted the present writ
petition under Article 32 of the Constitution complaining of
little or no corrective action on the part of the State; seeking
this Court’s intervention in the matter and specifically
praying for the reliefs noted hereinbelow.
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“(A) To issue a Writ of mandamus or any other
appropriate writ, order or direction, directing
immediate steps be initiated by both the
Respondent States and the Union of India to
stop all mining and other related activities in
forest areas of Andhra Pradesh and Karnataka
which are in violation of the orders of this
Hon’ble Court dated 12.12.1996 in W.P (C) No
202 of 1995 and the Forest (Conservation) Act,
1980.
(B) To issue a Writ of mandamus or any other
appropriate writ, order or direction, directing as
null and void retrospectively all ‘raising contracts’ /
sub leasing because which are in violation of the
Mines and Minerals (Development and Regulation)
Act, 1957 and initiate penal action against the
violators.
(C) To issue a Writ of mandamus or any other
appropriate writ, order or direction, directing the
stoppage of all mining along the border and in
forest areas in the Bellary Reserve Forest till a
systematic survey of both the interstate border and
the mine lease areas along the entire border isPage 4
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completed by the Survey of India along with a
representative of the Lokayukta of Karnataka.
(D) To issue a Writ of mandamus or any other
appropriate writ, order or direction, directing action
against all the violators involved either directly or
indirectly in illegal mining including those named in
the Report of the Lokayukta of Karnataka (Part-I).
(E) To issue a Writ of mandamus or any other
appropriate writ, order or direction, directing the
recovery of the illegal wealth accumulated through
the illegal mining and related activities; and
(F) To issue a Writ of mandamus or any other
appropriate writ, order or direction, directing null
and void notification No. CI 33 MMM 1994 dated
15.3.2003 and other related notifications/orders
dereserving lands for mining operations.”
3. The writ petition was entertained and the Central
Empowered Committee (hereinafter for short “the CEC”) was
asked to submit a report on the allegations of illegal mining in
the Bellary region of the State of Karnataka.
The very initial
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order of this Court is dated 19.11.2010 and was restricted to
six mining leases granted in favour of M/s. Bellary Iron Ore Pvt.
Ltd., M/s. Mahabaleswarapa & Sons, M/s. Ananthapur Mining
Corporation and M/s. Obulapuram Mining Company Pvt. Ltd.
What followed thereafter is unprecedented in the history of
Indian environmental jurisprudence. It is neither necessary
nor feasible to set out the series of Reports of the CEC and the
various orders of the Court passed from time to time. Rather,
a brief indication of the core Reports of the CEC and the main
orders passed by the Court will suffice to understand what had
happened so to enable the Court to unravel the course of
action for the future.
4. The initial Reports submitted by the CEC in response to the
orders of the Court having indicated large scale illegal mining
at the cost and to the detriment of the environment, a stage
came when by order dated 29.7.2011 a complete ban on
mining in the district of Bellary was imposed. Extension of the
said ban was made in respect of the mining operations in the
districts of Tumkur and Chitradurga by order dated 26.8.2011.
As the materials placed before the Court (including the Report
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of the Lokayukta dated 18.12.2008) indicated large scale
encroachment into forest areas by leaseholders and ongoing
mining operations in such areas without requisite statutory
approval and clearances, a Joint Team was constituted by this
Court by order dated 6.5.2011 to determine the boundaries of
initially 117 mining leases which number was subsequently
extended to 166 by inclusion of the mines in Tumkur and
Chitradurga districts. The result of the survey by the Joint
Team revealed a shocking state of depredation of nature’s
bounty by human greed. Objections of the lease holders to the
survey came early and were subjected to a re-examination by
the special team itself under orders of the Court dated
23.9.2011 in the course of which 122 cases were re-examined
and necessary corrections were effected in 33 cases.
Thereafter, the CEC submitted its Report termed as the “Final
Report” dated 3.2.2012 which is significant for two of its
recommendations. The first was for categorization of the mines
into three categories, i.e., ‘A’, ‘B’ and ‘C’ on the basis of the
extent of encroachment in respect of the mining pits and
over burden dumps determined in terms of percentage qua
the total lease area. The second set of recommendations
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pertained to the conditions subject to which reopening of the
mines and resumption of mining operations were to be
considered by the Court. A set of modified recommendations
along with a set of detailed guidelines for preparation and
implementation of Reclamation and Rehabilitation Plans (R &
R) were also submitted to the Court by the CEC on 13.3.2012.
Before the relevant extracts from the Reports of the CEC dated
3.2.2012 and 13.3.2012 are noticed, to make the discussion
on the Report of the Joint Team complete it will be necessary
to note that in terms of the order dated 10.2.2012 of the Court,
66 representations were considered by the CEC out of which
only 4 were found tenable. Accordingly, corrections were
made in respect of the said four leases which corrections,
however, did not involve any change of category. The CEC
placed the cases of two lease holders i.e. M/s. V.S. Lad & Sons
and M/s. Hothur Traders for consideration of the Court as to
whether the said two leases placed in Category “C” needed
upgradation to Category “B” in view of the minimal violation
committed by them and the circumstances surrounding such
violations.Page 8
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5. We may now proceed to notice the relevant part of the two
Reports of the CEC dated 3.2.2012 and 13.3.2012, as referred
to hereinabove.
“IV. CLASSIFICATION OF LEASES IN DIFFERENT
CATEGORIES ON THE BASIS OF THE LEVEL OF
ILLEGALITIES FOUND.
27. The CEC, based on the extent of illegal mining
found by the Joint Team and as appropriately modified
by the CEC in its Proceeding dated 25th January, 2012
and after considering the other relevant information has
classified the mining leases into three categories
namely “Category-A”, “Category-B” and “Category-C”.
28. The “Category-A” comprises of (a) working leases
wherein no illegality/marginal illegality have been found
and (b) non working leases wherein no
marginal/illegalities have been found. The number of
such leases comes to 21 & 24 respectively.
29. “Category-B” comprises of (a) mining leases
wherein illegal mining by way of (i) mining pits outside
the sanctioned lease areas have been found to be up to
10% of the lease areas and/ or (ii) over burden/waste
dumps outside the sanctioned lease areas have been
found to be up to 15% of the lease areas and (b) leases
falling on interstate boundary between Karnataka and
Andhra Pradesh and for which survey sketches have not
been finalized. For specific reasons as mentioned in thePage 9
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statement of “Category-B” leases, M/s. S.B. Minerals
(ML No. 2515), M/s. Shantalaxmi Jayram (ML No. 2553),
M/s. Gavisiddeshwar Enterprises (ML No. 80) and M/s.
Vibhutigudda Mines (Pvt.) Ltd. (ML No. 2469) have been
assigned in “Category-B”. The numbers of such leases
in “Category-B” comes to 72.
30. The “Category-C” comprises of leases wherein (i)
the illegal mining by way of (a) mining pits outside the
sanctioned lease area have been found to be more than
10% of the lease area and/or (b) over burden/waste
dumps outside the sanctioned lease areas have been
found to be more than 15% of the lease areas and/or (ii)
the leases found to be involved in flagrant violation of
the Forest (Conservation) Act and/or found to be
involved in illegal mining in other lease areas. The
number of such leases comes to 49.
RECOMMENDATIONS (as modified by CEC by its
Report dated 13.3.2012. Items 1 to IV of the Report
dated 3.2.2012 stood replaced by Items A to I of the
Report dated 13.3.2012 which are reproduced below
along with Items V to XIV of the initial Report dated
3.2.2012).
(A) the findings of the Joint Team and as modified
after careful examination by the CEC may be
accepted and directed to be followed by the
concerned authorities and the respective
leases, notwithstanding anything to thePage 10
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contrary. The boundaries of the mining leases
should accordingly be fixed on the ground.
(B) a ceiling of 25 Million Metric Tonnes (MMT) for
total production of iron ore from all the mining
leases in District Bellary may be prescribed. A
ceiling of 5 MMT for production of iron ore
from all the mining leases in Districts
Chitradurga and Tumkur together may be
prescribed;
(C) the proposed “guidelines for the preparation
of the R&R Plans” may be approved by this
Hon’ble Court and the prescriptions/provisions
of the R&R Plans, prepared as per these
guidelines, may be directed to be followed by
the respective lessees and the concerned
authorities;
(D) the iron ore which becomes available should
be used for meeting the iron ore requirement
of the steel plants and associated industries
located in Karnataka and also of those plants
located in the adjoining States which have
been using the iron ore from the mining
leases located in these Districts. Exports,
outside the country, should be permissible
only in respect of the material which the steel
plants and associated industries are not
willing to purchase on or above the average
price realized by the Monitoring Committee
for the corresponding grades of fines/lumps
during the sale of about 25 MMT of the
existing stock of iron ore. Similarly, the iron
ore produced by the beneficiation plants afterPage 11
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processing should also not be permitted to be
exported outside the country;
(E) the sale of the iron ore should continue to be
through e-auction and the same should be
conducted by the Monitoring Committee
constituted by this Hon’ble Court. However,
the quantity to be put up for e-auction, its
grade, lot size, its base/floor price and the
period of delivery will be decided/provided by
the respective lease holders. The Monitoring
Committee may permit the lease holders to
put up for e-auction the quantities of the iron
ore planned to be produced in subsequent
months. The system of sale through the
Monitoring Committee may be reviewed after
say two year;
(F) 90% of the sale price (excluding the royalty
and the applicable taxes) received during the
e-auction may be paid by the buyer directly
to the respective lease holders and the
balance 10% may be deposited with the
Monitoring Committee alongwith the royalty,
FDT and other applicable taxes/charges;
(G) The responsibility of the Monitoring
Committee will be (a) to monitor the
implementation of the various
provisions/prescriptions of the R&R Plans, (b)
to ensure strict compliance of the conditions
on which the environment clearance, the
approval under the Forest (Conservation) Act,
1980 and the other statutory
approvals/clearances have been accorded, (c)
to ensure that the mining is undertaken as
per the approved Mining Plan, (d) to ensurePage 12
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that the ceiling on annual production fixed for
the lease does not exceed, (e) to ensure that
the safety zone is maintained around the
lease area and in respect of the clusters of
mining leases around the outer boundary of
such cluster of mining leases and (f) to ensure
compliance of the other applicable
condition/provisions. Any lease found to be
operating in violation of the stipulated
conditions/provisions should be liable for
closure and/or termination of the lease;
(H) the present Members of the Monitoring
Committee should continue for a period of
next two years; and
(I) in the larger public interest the mining
operations in the two leases of M/s. NMDC
may be permitted to be continued. However,
it will be liable to deposit
penalty/compensation as payable for the
mining leases falling in “Category-B”
(V) In respect of the mining leases falling in
“CATEGORY-B” (details given at Annexure-R-
10 to this Report) it is recommended that:
i) the R&R Plan, under preparation by the
ICFRE, after incorporating the appropriate
changes as per the directions of this Hon’ble
Court, should be implemented in a time
bound manner by the respective lessees at
his cost. In the event of his failure to do so orPage 13
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if the quality and/or the progress of the
implementation of the R&R Plan is found to be
unsatisfactory by the Monitoring Committee
or by the designated officer(s) of the State of
Karnataka, the same should be implemented
by the State of Karnataka through
appropriate agency(ies) and at the cost of the
lessee;
ii) for carrying out the illegal mining outside the
lease area, exemplary compensation/ penalty
may be imposed on the lessee. It is
recommended that:
a) For illegal mining by way of mining pits
outside the leases area, as found by the
Joint Team, the compensation/ penalty may
be imposed at the rate of Rs. 5.00 crore
(Rs. Five Crore only) for per ha. of the area
found by the Joint Team to be under illegal
mining pit; and
b) For illegal mining by way of over burden
dump(s) road, office, etc. outside the
sanctioned lease area, the compensation/
penalty may be imposed @ Rs. 1.00 crores
(Rs. One Crores only) for per ha. of the area
found to be under illegal over burden dump
etc.
iii) Mining operation may be allowed to be
undertaken after (a) the implementation of
the R& R Plan is physically undertaken and is
found to be satisfactory based on the predetermined parameters (b) penalty/
compensation as decided by this Hon’blePage 14
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Court is deposited and (c) the conditions as
applicable in respect of “Category-A” leases
are fulfilled/followed;
iv) In respect of the seven mining leases located
on/nearby the interstate boundary, the mining
operation should presently remain suspended.
The survey sketches of these leases should be
finalized after the interstate boundary is
decided and thereafter the individual leases
should be dealt with depending upon the level
of the illegality found; and
v) Out of the sale proceeds of the existing stock
of the mining leases, after deducting :
a) The penalty/compensation payable;
b) Estimated cost of the implementation of
the R& R Plan; and
c) 10% of the sale proceeds to be retained by
the Monitoring Committee for being
transferred to the SPV
d) The balance amount, if any, may be
allowed to be disbursed to the respective
lessees.
(VI) In respect of the mining leases falling in
“CATEGORY-C” (details are given at
annexure-R-11 to this Report) it isPage 15
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recommended that (a) such leases should be
directed to be cancelled/determined on
account of these leases having been found to
be involved in substantial illegal mining
outside the sanctioned lease areas (b) the
entire sale proceeds of the existing stock of
the iron ore of these leases should be
retained by the Monitoring Committee and
(c) the implementation of the R&R Plan
should be at the cost of the lessee;
(VII) the area of the mining leases falling in the
“Category-C”, after cancellation of the mining
leases may be directed to be
allotted/assigned through a transparent
process of bidding to the highest bidder (s)
from amongst the end users. The floor price
for this purpose should be fixed on the basis
of the market value of the permissible annual
production of the iron ore during the period of
the agreements/lease period. The iron ore
produced from such mines should be used for
captive use only and no sale/export will be
permissible. The detailed schemes in this
regard should be prepared and implementedPage 16
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after obtaining the permission of this Hon’ble
Court;
(VIII) the mining leases owned by the M/s. MML
should be operated by it. Alternatively, the
agreements for mining operations and supply
of the iron ore should be entered into by it
through a transparent process and on the
basis of the market value of the mineral and
without any hidden subsidy. The detailed
scheme in this regard should be prepared and
implemented after obtaining permission of
this Hon’ble Court.
(IX) A Special Purpose Vehicle (SPV) under the
Chairmanship of Chief Secretary, Government
Karnataka and with the senior officers of the
concerned Departments of the State
Government as Members may be directed to
be set up for the purpose of taking various
ameliorative and mitigative measures in
Districts Bellary, Chitradurga and Tumkur.
The additional resources mobilized by (a)
allotment/ assignment of the cancelled
mining leases as well as the mining leases
belonging to M/s. MML, (b) the amount of the
penalty/ compensation received/ receivablePage 17
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from the defaulting lessee, (c) the amount
received/ receivable by the Monitoring
Committee from the mining leases falling in
“Category-A” and “Category-B”, (d) amount
received/ receivable from the sale proceeds
of the confiscated material etc., may be
directed to be transferred to the SPV and
used exclusively for the socio-economic
development of the area/local population,
infrastructure development, conservation and
protection of forest, developing common
facilities for transportation of iron ore (such as
maintenance and widening of existing road,
construction of alternate road, conveyor belt,
railway siding and improving communication
system, etc.). A detailed scheme in this
regard may be directed to be prepared and
implemented after obtaining permission of
this Hon’ble Court;
(X) Out of the 20% of sale proceeds retained by
the Monitoring Committee in respect of the
cleared mining leases falling in “Category-A”,
10% of the sale proceeds may be transferred
to the SPV while the balance 10% of the sale
proceeds may be reimbursed to the
respective lessees. In respect of the miningPage 18
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leases falling in “Category-B”, after deducting
the penalty/compensation, the estimated cost
of the implementation of the R&R Plan, and
10% of the sale proceeds to be retained for
being transferred to the SPV, the balance
amount, if any, may be reimbursed to the
respective lessees;
(XI) no new mining leases, including for which
Notifications have already been issued, will be
granted without obtaining permission of this
Hon’ble Court;
(XII) the pending applications for grant of mining
leases in Ramgad and Swamimalai Block in
District Bellary and for which the NOC’s were
earlier issued will stand rejected;
(XIII) the confiscated iron ore pertaining to the
cancelled stock yards will be sold by the
Monitoring Committee and the sale proceeds
will be retained by the Monitoring Committee;
(XIII) the Monitoring Committee may be
authorized to sell low grade/sub grade ironPage 19
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ore to Cement Plants, Red Oxide and other
similarly placed industries. It may also be
authorized to supply iron ore required for
construction of nuclear plants at the rates
mutually agreed between the Monitoring
Committee and the concerned authorities
provided no middle man is involved; and
(XIV) the Monitoring Committee may be
authorized to utilize up to 25% of the interest
received by it for engaging reputed agencies
for the monitoring of the various parameters
relating to mining.”
6. As previously noticed, the CEC in its Report dated
13.3.2012 had set out in detail the objectives of the
Reclamation and Rehabilitation (R&R) plans and the guidelines
for preparation of detailed R & R plans in respect of each
mining lease. The origins of the idea (R & R plans) are to be
found in an earlier Report of the CEC dated 28.7.2011. As the
suggestions of the CEC with regard to preparations of R & R
plans for each mine is crucial to scientific and planned
exploitation of the mineral resources in question it will be
necessary for us to notice the said objectives and the detailedPage 20
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guidelines which are set out below. In this connection it would
be worthwhile to take note of the fact that the guidelines in
question have been prepared after detailed consultation with
different stakeholders including the Federation of Indian
Mineral Industries (FIMI) which claims to be the representative
body of the majority of the mining lessees of the present case.
“II. BROAD OBJECTIVES/PARAMETERS OF R&R PLANS
8. The broad objectives/parameters of the R&R Plans
would be:
(i) to carry out time bound reclamation and
rehabilitation of the areas found to be under
illegal mining by way of mining pits, over
burden/waste dumps etc. outside the sanctioned
areas;
(ii) to ensure scientific and sustainable mining after
taking into consideration the mining reserves
assessed to be available within the lease area;
(iii) to ensure environmental friendly mining and
related activities and complying with the
standards stipulated under the various
environmental/mining statutes e.g. air quality
(SPM, RPM), noise/vibration level, water quality
(surface as well as ground water), scientific overPage 21
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burden/waste dumping, stabilization of slopes
and benches, proper stacking and preservation
of top soil, sub grade mineral and saleable
minerals, proper quality of internal roads,
adequate protective measures such as dust
suppression/control measures for screening and
crushing plants, beneficiation plants, provision
for retention walls, garland drains, check dams,
siltation ponds, afforestation, safety zones,
proper covering of truck, exploring possibility of
back filling of part of over burden/waste dumps
in the mining pits, sale/beneficiation of sub grade
iron ore, water harvesting, etc.
(iv) for achieving (ii) and (iii) above, fixation of
permissible annual production; and
(v) regular and effective monitoring and evaluation.
xxxx xxxx xxxx xxxx
VI. PROVISIONS/PRESCRIPTIONS OF THE LEASE
WISE R&R PLANS
14. The leasewise R&R Plans will provide for the
specific provisions/prescriptions as dealt with
hereunder:Page 22
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(A) REGARDING AREA FOUND BY THE JOINT
TEAM TO BE UNDER ILLEGAL MINING
15. The area under illegal mining pits should be filled
up with the existing over burden/waste dumps
preferably the illegal dumps. Appropriate soil and
moisture conservation measures will be provided and
such areas will be afforested with indigenous species.
16. The reclamation and rehabilitation works will be
carried out even if such areas are found to be having
mineral reserves.
17. In respect of area under illegal over burden/waste
dumps, wherever environmentally feasible the over
burden/waste dumps will be removed and disposed of
scientifically within the lease area of the encroacher.
18. In other cases, the illegal over burden/waste
dumps will be stabilized by:
(a) modifying the gradient of the lump
(b) construction of retaining walls,
(c) construction of gully plugsPage 23
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(d) construction of garland drains
(e) geo-metric/geo-matting of dumps
(f) afforestation, and
(g) other soil and moisture conservation measures,
19. However, in respect of the mining pits falling within
the area of the other sanctioned leases, specific leasewise prescription/provision will be made depending upon
the ground situation.
(B) REGARDING PERMISSIBLE ANNUAL
PRODUCTION
20. The permissible annual production for the mining
lease would be based on (a) the mineral reserves in the
lease area; (b) area available for over burden/waste
dumps, sub grade iron ore and other land uses (c)
existing transport facilities in relation to the traffic load of
the mining lease and (d) overall ceiling on the annual
production from all the mining leases in the district (as
dealt with earlier).Page 24
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21. Presently the permissible annual production
would be decided for the next five years subject to
review/modification in any of the following situation:
(a) change in the assessed mineral
reserves/resources because of subsequent
exploration carried out and incorporated in the
modified mining plan/scheme and approved by
the IBM;
(b) identification of additional area for the
disposal of the over burden/waste dumps and
incorporated in the approved mining
plan/scheme (preferably by way of back filling of
mined out pits); and
(c) creation of additional physical
infrastructure such as railway sidings, conveyors,
wagon tipplers, wagon loaders (to
remove/reduce transportation bottlenecks).
(C) STABILIZATION OF THE EXISTING OVER
BURDEN/WASTE DUMPS AND SUB GRADE
IRON ORE DUMPS AND PLAN FOR ACTIVE
OVER BURDEN/WASTE DUMP
22. This will include the total area of the dump(s),
present gradient, planned gradient, provision for
retaining wall(s), benches, final gradient, volume of
over burden/waste dump that may be stored,Page 25
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afforestation, use of geo-matting/geo-textile, garland
drains and other soil and moisture
conservation/protective measures;
23. The design will vary from mine to mine and
within the mine from dump to dump. The prescription
will also vary between old dumps and active dumps.
The slope of 27 degree provided in the environment
clearance may not be feasible for dumping on steep
hill slopes.
24. The ultimate objective of the dump
design/protective measure would be to ensure that
the slopes are stable, are not vulnerable to erosion
and to provide for adequate protective measures to
capture/control run off:
(D) MINING PITS
25. In respect of the mining leases where the shape
and design of the mining pits differ substantially from
those provided in the approved mining plan and /or
found to be in gross violation of the approved design,
mining will be permissible based on rectification as
required by the concerned statutory authority (viz.
DGMS). Similarly, gross violations under otherPage 26
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Acts/Rules, if any, will need to be rectified (as required
by the relevant statutory authorities).
(E) SOIL AND MOISTURE CONSERVATIONS,
AFFORESTATION AND OTHER MEASURES
26. The R&R plan would inter alia provide for:
(i) broad design/specification for
(a) garland drains
(b) retaining walls
(c) check dams
(d) gully plugs and/or culverts (if required)
(e) geo textile/geo matting of dumps
(f) afforestation in the safety zones
(g) afforestation in peripheral area, road
side, over burden dumps and other areas
(ii) dust suppression measures at/for loading,
unloading and transfer points, internal roads,
mineral stacks etc.
(iii) covered conveyor belts (if feasible) – such as
down hill conveyor, pipe conveyor etc.Page 27
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(iv) specification of internal roads,
(v) details of existing transport system and
proposed improvements
(vi) railways siding (if feasible)
(vii) capacity building of personnel involved in the
mining and environmental management
(viii) rain water harvesting
(F) TIME SCHEDULE
27. Time schedule for implementation of various
prescriptions will be provided.
(G) MONITORING MECHANISM
28. Monitoring mechanism, including
predetermined parameters to assess the successful
implementation of the various provision/prescriptions
of the R&R Plan will be provided. The Monitoring
Committee will be responsible for monitoring the
implementation of the prescription/provisions of the
R&R Plans.”Page 28
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7. The recommendations of the CEC dated 13.3.2012 in
respect of Items A to I were accepted by the Court by its order
dated 13.4.2012.
8. The next significant event that had occurred in the
catalogue of relevant occurrences is the order of the Court
dated 3.9.2012 permitting reopening of 18 category ‘A’
mines subject to the conditions spelt out in the said order
which broadly were to the effect that mining shall be to the
extent of the annual production as applicable to each mine
determined by the CEC in its Report dated 29.8.2012 and
further subject to the following conditions:
“(I) compliance with all the statutory
requirements;
(II) the full satisfaction of the Monitoring
Committee, expressed in writing, that steps
for implementation of the R & R Plan in the
leasehold areas are proceeding effectively
and meaningfully, and
(III) a written undertaking by the
leaseholders that they would fully abide by
the Supplementary Environment
Management Plan (SEMP) as applicable to thePage 29
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leasehold area and shall also abide by the
Comprehensive Environment Plan for Mining
Impact Zone (CEPMIZ) that may be
formulated later on and comply with any
liabilities, financial or otherwise, that may
arise against them under the CEPMIZ.
(IV) The CEC shall, upon inspection, submit a
report to this Court that any or all the stated
18 “Category A” mine owners have fully
satisfied the above-mentioned conditions.
Further, it shall be reported that the mining
activity is being carried on strictly within the
specified parameters and without any
violation.”
9. The order of the Court dated 28.9.2012, laying down certain
conditions “as the absolute first step before consideration of
any resumption of mining operations by Category–‘B’
leaseholders” would also be required to be specifically
noticed at this stage.
“I. Compensatory Payment
(a) Each of the leaseholders must pay
compensation for the areas under illegal mining
pits outside the sanctioned area, as found by the
Joint Team (and as finally held by the CEC) at the
rate of Rs.5 crores per hectare, and (b) for thePage 30
30
areas under illegal overburden dumps, roads,
offices, etc. outside the sanctioned lease area, as
found by the Joint Team (as might have been
finally held by the CEC) at the rate of Rs.1
crore per hectare.
It is made clear that the payment at the rates
aforesaid is the minimum payment and each
leaseholder may be liable to pay additional
amounts on the basis of the final determination of the
national loss caused by the illegal mining and the
illegal use of the land for overburden dumps,
roads, offices, etc. Each leaseholder, besides
making payment as directed above, must also give
an undertaking to the CEC for payment of the
additional amounts, if held liable on the basis of the
final determination.
At the same time, we direct for the constitution
of a Committee to determine the amount of
compensatory payment to be made by each of the
leaseholders having regard to the value of the ore
illegally extracted from forest/non-forest land falling
within or outside the sanctioned lease area and
the profit made from such illegal extraction and the
resultant damage caused to the environment and
the ecology of the area.Page 31
31
The Committee shall consist of experts/officers
nominated each by the Ministry of Mines and the
Ministry of Environment and Forests. The convener of
the Committee will be the Member Secretary of the
CEC. The two members nominated by the Ministry of
Mines and the Ministry of Environment and Forests
along with the Member Secretary, CEC shall co-opt
two or three officers from the State Government. The
Committee shall submit its report on the aforesaid
issue through the CEC to this Court within three
months from today.
The final determination so made, on being
approved by the Court, shall be payable by each of
the leaseholders.
II. Guarantee money for implementation of the R&R
plan in the respective sanctioned lease areas.
The CEC shall make an estimate of the expenses
required for the full implementation of the R&R plan
in each of the 63 'Category B' mines and each of
the leaseholders must pay the estimated amount as
guarantee for implementation of the R&R plans in
their respective sanctioned lease areas and in the
areas where they carried on illegal mining activities
or which were used for illegal overburden dumps,
roads, offices, etc. beyond the sanctioned lease area.
In case, any leaseholder defaults in implementationPage 32
32
of the R&R plan, it will be open to the CEC to carry
out the R&R plan for that leasehold through some
other proper agency from the guarantee money
deposited by the leaseholder. However, on the full
implementation of the R&R plan to the complete
satisfaction of the CEC and subject to the approval by
the Court, the guarantee money would be refundable
to the leaseholder.
III. In addition to the above, each leaseholder must
pay a sum equivalent to 15% of the sale proceeds of
its iron ore sold through the Monitoring Committee
as per the earlier orders of this Court. In this regard,
it may be stated that though the amicus suggests
the payment @ 10% of the sale proceeds, having
regard to the overall facts and circumstances of the
case, we have enhanced this payment to 15% of the
sale proceeds.
Here it needs to be clarified that the
CEC/Monitoring Committee is holding the sale
proceeds of the iron ores of the leaseholders,
including the 63 leaseholds being the subject of this
order. In case, the money held by the CEC/Monitoring
Committee on the account of any leaseholder is
sufficient to cover the payments under the aforesaid
three heads, the leaseholder may, in writing,
authorize the CEC to deduct from the sale proceedsPage 33
33
on its account the amounts under the aforesaid
three heads and an undertaking to make payment
of any additional amount as compensatory payment.
On submission of such authorization and
undertaking, the CEC shall retain the amounts
covering the aforesaid three heads and pay to
the concerned leaseholder the balance amount, if
any. It is expected that the balance amount, after
making the adjustments as indicated here, would be
paid to the concerned leaseholder within one month
from the date of submission of the authorization and
the undertaking.
In the case of any leaseholder, if the money
held on his account is not sufficient to cover the
aforesaid three heads, he must pay the deficit within
two months from today.
IV. The R&R plans for the aforesaid 63 'Category B'
mines may be prepared as early as possible, as
directed by orders of this Court dated April 13,
April 20 and May 05, 2012, and in case where the
R&R plan is already prepared and ready, the
leaseholder may take steps for its comprehensive
implementation, both within and outside the
sanctioned lease area, without any delay.”Page 34
34
10. The number of “B” Category mines though mentioned as
72 in the CEC Report dated 3.2.2012, reference to the figure
of 63 in the above extracted part of the Court’s order dated
28.9.2012 is on account of placing of the 7 mines located on
the inter-State border (Karnataka-Andhra Pradesh) in a
special category (B1) and the cases of two leases i.e. M/s
S.B. Minerals (ML No.2515) and M/s. Shanthalakshmi
Jayaram (ML No.2553) [tentatively placed by CEC in
Category ‘B’] before the Court for orders as to their
appropriate categorization. The issue of the seven (7) mines
on the Karnataka – Andhra Pradesh border and the two (2)
mines in respect of which appropriate categorization which
is to be decided is being dealt with in another part of the
present order.
11. The latest Report of the CEC dated 15.2.2013 indicating
the present status of preparation and implementation of the
lease wise R& R plans and resumption of mining operations
by Category ‘A’ and Category ‘B’ mines and the compliance
of the preconditions for opening of Category ‘B’ mines will
also require specific notice, which recommendations are
extracted below.Page 35
35
“RECOMMENDATIONS
15. In the above background the following
recommendations are made for the consideration of this
Hon’ble Court :
(i) This Hon’ble Court may consider extending its
order dated 3rd September, 2012, by which
mining operations were permitted to be
resumed in 18 “Category-A” mining leases, to
all “Category-A” mining leases;
(ii) This Hon’ble Court may consider permitting
the resumption of the mining operations in
“Category-B” mining leases subject to the
conditions as applicable for the resumption of
the mining operations in the “Category-A”
mining leases and compliance of the following
additional conditions :
(a) In compliance of this Hon’ble
Court’s order dated 28th September, 2012
the lessees will be required to pay, if not
already so done, compensation for the area
under illegal mining pits, illegal over
burden dumps, roads, offices etc.
undertake to pay the additional
compensatory amounts, if held liable,
guarantee money for implementation of
the R&R Plans and deposit of 15% of the
sale proceeds of the existing iron ore sold
by the Monitoring Committee; and
(b) Before starting the mining
operations the implementation of the R& R
Plans for the areas found under illegal
mining pits, illegal over burden dumps, etc.Page 36
36
will be completed/nearing completion to
the satisfaction of the Monitoring
Committee; and
(iii) the CEC/Monitoring Committee may be
authorized to remove and sell through eauction the sub grade iron ore available in the
existing over burden dumps in and around
the lease areas subject to the condition that
such removal and sale is not likely to have
significant adverse impact on the existing
tree growth/vegetation and/or stability of the
over burden dumps. The Monitoring
Committee may be authorized to retain the
entire sale proceeds in respect of the dumps
located outside the sanctioned and presently
valid lease areas for the purpose of transfer
to the SPV for the implementation of the
Comprehensive Environment Plan for Mining
Impact Zone (CEPMIZ).”
Thus the CEC in its Report dated 15.2.2013 had
recommended resumption of mining operations in the
remaining category ‘A’ mines subject to the conditions already
imposed by this Court in its order dated 3.9.2012 and also for
reopening of Category ‘B’ mines subject to the same conditions
and additionally the preconditions recommended by the CEC
and approved by this Court by its order dated 28.9.2012. Page 37
37
12. The above main features contained in the various Reports
of the CEC and the orders of this Court apart, there are
certain incidental and supplementary matters which may be
conveniently noticed now.
13.The first is with regard to investigations in respect of alleged
criminal offences by lessees which have been ordered by this
Court to be investigated by the CBI. As investigations have
already been ordered by this Court and such investigations
would necessarily have to follow the procedure prescribed by
law we do not wish to delve upon the same save and except
to say that each of such investigation shall be brought to its
logical conclusion in accordance with law and any aggrieved
party would be entitled to avail of all legal remedies as may
be available.
14. The second supplementary issue that can be conveniently
dealt with at this stage is with regard to sale of the existing
stock of Iron Ore which is mainly the yield of illegal mining.
The Court had ordered disposal of such accumulated Iron
Ore by the process of e-auction through a Monitoring
Committee constituted by order of this Court datedPage 38
38
23.9.2011. From time to time this Court had directed certain
payments to be made to the Monitoring Committee e.g. by
way of 10% of sale proceeds; on account of compensatory
payments etc. By order dated 28.9.2012, this Court had
constituted a Special Purpose Vehicle (for short ‘SPV’) on the
suggestion of the learned Amicus Curiae. The purpose of
constitution of the SPV, it may be noticed, is for taking of
ameliorative and mitigative measures as per the
“Comprehensive Environment Plans for the Mining Impact
Zone” (CPEMIZ) around mining leases in Bellary, Chitradurga
and Tumkur. By the order dated 28.9.2012, the Monitoring
Committee was to make available the payments received by
it under different heads of receivables to the SPV.
[
15. The above facts would have relevance to the future of the
mining operations in the State as the continuance of this
Court’s orders for sale of the Iron Ore by the process of
e-auction by the Monitoring Committee after
recommencement of mining operations on the same terms
and conditions and also the continuance of the SPV would
be required to be considered by us. It would also bePage 39
39
convenient to take note of the fact that as per the CEC’s
Report dated 15.2.2013 sale of almost the entire quantity of
illegally extracted Iron Ore has been effected through the
Monitoring Committee and the sub-grade Iron Ore lying in
dumps in and around several lease areas may not have
adequate commercial potential. Besides removal thereof for
sale, in many cases, may also give rise to environmental
problems in as much as removal of such dumps may
constitute a hazard to the stability of the dumps which
have been in existence for many years. Permission for sale
of sub-grade iron ore, only when the same is commercially
viable and removal thereof from the dumps is an
environmentally safe exercise, has been sought by the CEC
in its last Report dated 15.2.2013. We do not find any
impediment in accepting the recommendations of the CEC
in the Report dated 15.2.2013 in respect of removal and
sale of sub-grade Iron Ore. Similarly, we do not find any
difficulty in continuing our previous orders permitting sale of
iron ore to be mined after resumption of operations through
the Monitoring Committee on the same terms and
conditions as presently in force.Page 40
40
16. The supplementary and the collateral issues, which we
must emphasize are not to be understood to be low either in
priority or importance because of the nomenclature used,
having been dealt with by us in the manner indicated above
we may now come to what can be conveniently referred to
as the central issues that confront the Court in the present
case. In this regard notice must be had to the large number
of interlocutory applications (IAs) filed basically questioning
the sanctity of the survey carried out by the Joint Team
constituted by this Court, the findings arrived at and the
categorization of the leaseholders into the three different
categories. Such objections in the main have come from
leaseholders who have been put in Category ‘C’ (except in
few isolated cases seeking a change from Category ‘B’ to
‘A’) for which Category of mines the recommendation of the
CEC is one of closure. The challenge is on twin grounds of
lack of procedural fairness and inherent defects in the
technical part of the exercise of survey besides apparent
legal fallacies in the process of determination of the
allegedly encroached mining area. Denial of adequatePage 41
41
opportunity to associate and coordinate with the survey
process, notwithstanding the possible adverse effects of the
findings of survey on the legal rights of the lease holders, is
the backbone of the challenge on ground of procedural
fairness. On the other hand, alteration of the lease area
either by shifting or reducing the same; ignoring concluded
judicial orders determining boundary disputes between
adjacent lease holders; taking of land use for dumps as
mining operations requiring a mining license for the land so
used or forest clearances under the Forest Conservation Act,
1980 (in case of such use of forest land) and above all the
change of boundaries demarcated decades back by
adoption of the Total Station Method instead of a repeat
survey by following the same Conventional Method (chain
method) are the common threads in the arguments
advanced to challenge the technical part of the survey.
17. The categorization of the allegedly offending leases on
the basis of percentage of the alleged encroachment qua
the total lease area is contended to be constitutionally
fragile and environmentally self-defeating. A leaseholderPage 42
42
with a more expansive lease area, inspite of committing a
larger encroachment, may still fall below the percentage
adopted as the parameter so as to place him in a more
favourable category, say Category ‘B’, as compared to a
small lease where the area encroached, though small, falls
in a less favourable category, say “C” because the
percentage of encroachment exceeds the prescribed
parameters. The recommendation of the CEC with regard to
categorization and the actions proposed on that basis as
well as the suggested parameters for drawing up the R& R
plans and the preconditions to be fulfilled by Category ‘A’
and ‘B’ leaseholders for recommencement of mining
operations has also been assailed by questioning the
credibility of the CEC as an institution and the prolonged
continuance of its members which, according to the
leaseholders, have the tendency of effectuating unbridled
powers.
18. Relying on the provisions of the Mines and Minerals
(Development & Regulation) Act, 1957; Forest
(Conservation) Act, 1980 and Environment (Protection) Act,Page 43
43
1986 (hereinafter referred to as “MMDR Act”, “FC Act” and
“EP Act” respectively) it is argued that each of the statutes
contemplate a distinct and definite statutory scheme to deal
with the situations that have allegedly arisen in the present
case. To resolve the said issues it is the statutory scheme
that should be directed to be followed and resort to the
powers of this Court under Article 32 read with Article 142 of
the Constitution, when a statutory scheme is in existence,
would be wholly uncalled for. Specifically, it has been
pointed out that none of the conditions that are required to
be fulfilled by Category ‘A’ leaseholders and none of the
compulsory payments contemplated for Category ‘B’
leaseholders for recommencement of operation are
visualized in any of the statutory schemes. Insofar as
Category ‘C’ leaseholders are concerned, it is contended
that cancellation, if any, has to be in accordance with the
statute which would provide the lease holder with different
tiers of remedial forums as compared to the finality that
would be attached if any order is to be passed by this Court.
In this regard, several earlier opinions of this Court, details
of which will be noticed in the discussions that follow, hadPage 44
44
been cited at the bar to persuade us to take the view that
we should desist from exercising our powers under the
Constitution and instead relegate the parties to the
remedies provided by the statute.
19. We may now proceed to deal with the issues arising in
proper sequential order.
ISSUE NO.1
Credibility of the CEC
20. A scathing attack has been made against the CEC on
behalf of one of the lessees represented by Shri Dushyant A.
Dave, learned senior counsel. It is contended that the said
authority has virtually become a law unto itself making
recommendations which is in defiance of both law and logic.
Assumption of unguided, unbridled and absolute powers has
been attributed to the CEC. The implicit trust of this Court
in the said body has been misutilised requiring a review by
this Court with regard to the continuance of the said body or
at least in respect of a change in its present composition, it
is argued.Page 45
45
21. The CEC was first constituted by the Court by its order
dated 9.5.2002 as an interim body until creation of the
statutory agency contemplated under the provisions of
Section 3 (3) of the EP Act. Thereafter by a Notification
dated 17.9.2002 published in the Gazette of India the
constitution of the Central Empowered Committee (CEC) for
a period of 5 years was notified indicating its composition
together with the extent of its powers and duties. It
transpires from the Court’s order dated 7.9.2007 that an
issue with regard to the correctness of the extent of
empowerment of the said body made by Notification dated
17.9.2002 was raised on behalf of the Union of India,
whereafter, on the suggestions of the Attorney General for
India, this Court by its order dated 14.12.2007 had
determined the extent of powers of the CEC in the following
terms :
“1. In supersession of all the previous orders regarding
constitutions and functioning of the Central
Empowered Committee (hereinafter called the
"Empowered Committee") is constituted for the
purpose of monitoring and ensuring compliance with
the orders of this Court covering the subject
matter of forest and wild life and related issues
arising out of the said orders.Page 46
46
2. The Committee shall exercise the following powers
and perform the following functions:
(i) to monitor the implementation of this
Court's orders and place reports of noncompliance before the Court and Central
Government for appropriate action.
(ii) to examine pending Interlocutary
Applications in the said Writ petitions (as
may be referred to it by the Court) as
well as the reports and affidavits filed by
the States in response to the orders
passed by the Hon'ble Court and place
its recommendations before the Court
for orders
(iii) to deal with any applications made to it
by any aggrieved person and wherever
necessary, to make a report to this
Court in that behalf;
(iv) for the purposes of effective discharge of
powers conferred upon the Committee
under this order; the Committee can:-
(a) call for any documents from
any persons or the government of the
Union or the State or any other
official;
(b) undertake site inspection of
forest area involved;
(c) seek assistance or presence
of any person(s) or official(s) required
by it in relation to its work;
(d) co-opt one or more persons
as its members or as special invitees
for dealing with specific issues;Page 47
47
(e) co-opt, wherever feasible,
the Chief Secretary or his
representative and Principal Chief
Conservator of Forests of the State as
special invitees while dealing with
issues pertaining to a particular state;
f) to suggest measures generally to
the State, as well as Central
Government, for the more effective
implementation of the Act and other
orders of this Court.
(v) to examine and advise/recommend on
any issue referred to the Committee.”
22. As the period of five years mentioned in the Notification
dated 17.9.2002 had expired and the terms of reference to
the body had been redetermined by this Court, perhaps, a
fresh notification should have been issued which was not
forthcoming. It is in such a situation that the CEC had
continued to function under orders of the Court submitting
its reports from time to time in various environmental issues
pending before this Court. It is on consideration of such
Reports that the Court has been passing its orders from time
to time.Page 48
48
23. In the circumstances enumerated above, questions
concerning the credibility of the CEC are absolutely
unfounded, particularly in the absence of any materials to
substantiate the apprehensions, if not allegations, that have
been leveled. The said body has been performing such tasks
as had been assigned by this Court by its orders passed
from time to time. The directions on the basis of which the
CEC had proceeded and had submitted its Reports are
within the framework of the terms of reference of the CEC
as determined by this Court by order dated 14.12.2007.
Needless to say, acceptance of the recommendations made
by the CEC on the basis of which orders of the Court are
formulated is upon the satisfaction of the Court. We,
therefore, close the issue by holding the contentions made
to be wholly untenable.
ISSUE NO.2
Exercise of jurisdiction under Article 32/142 of the
Constitution on the basis of the facts revealed by
Reports of the CEC i.e. large scale damage to the forest
wealth of the country due to illegal mining on an
unprecedented scale vis-à-vis resort to remedies under
the provisions of Mines and Minerals (Development and
Regulation) Act, 1957, Forest (Conservation) Act, 1980
and Environment (Protection) Act, 1986Page 49
49
24. On the above issue the short and precise argument on
behalf of the leaseholders is that the provisions of each of
the statutory enactments, i.e., the MMDR Act, FC Act and EP
Act prescribe a distinct statutory scheme for regulation of
mining activities and the corrective as well as punitive steps
that may be taken in the event mining activities are carried
out in a manner contrary to the terms of the lease or the
provisions of any of the statutes, as may be. The argument
advanced is that as the statutes in question contemplate a
particular scheme to deal with instances of illegal mining or
carrying on mining operations which is hazardous to the
environment, the CEC could not have recommended the
taking of any step or measure beyond what is contemplated
by the statutory scheme(s) in force. It is argued that it will
not be proper for this Court to act under Article 32 and to
accept any of the said recommendations which are beyond
the scheme(s) contemplated by the Statute(s). In other
words, what is sought to be advanced on behalf of the
leaseholders is that no step should be taken or direction
issued by this Court which will be contrary to or in conflict
with the provisions of the relevant statutes. SeveralPage 50
50
judgments of this Court, which are perceived to be
precedents in support of the proposition advanced, have
been cited in the course of the arguments made.
25. On the other hand, the learned Amicus Curiae, Shri
Shyam Divan, has submitted that the present is a case of
mass destruction of the forest wealth of this country
resulting not only in a plunder of scarce natural resources
but also causing irreparable ecological and environmental
damage and degradation. The learned Amicus Curiae has
submitted that the extent of illegal mining that had
happened in the three districts of the State of Karnataka is
unprecedented. The relevant data compiled by different
bodies has been placed by the learned Amicus Curiae to
indicate that in the Bellary-Hospet region the annual
production of Iron Ore had increased from 12.4 MMT in the
year 2001-02 to 44.39 MMT in the year 2008-09. The then
Chief Minister of the State had made a statement on the
floor of the legislative assembly on 9.7.2010 that 30.49 MMT
of illegal Iron Ore has been exported from the State of
Karnataka between 2003-04 to 2009-10 valued atPage 51
51
approximately Rs. 15,245 crores. In the year 2009-10 alone
the total quantity of illegal Iron Ore exported stood at 12.9
MMT. During the inspection carried out by the Indian
Bureau of Mines in December, 2009 it was found that not a
single mining lease was operating without violating the
provisions of the MMDR Act and the FC Act. In an affidavit
filed by the official Respondents in a writ petition registered
and numbered as W.P. No. 14551/2010 before the
Karnataka High Court it was stated that between November,
2009 and February, 2010 (i.e., within a period of four
months) 35.319 lakh MT of illegal Iron Ore was received at
Belekeri and Karwar ports, for movement of which for a
period of about 4 months 2986 trucks were required to
undertake the journey every day in both directions i.e., to
the ports and thereafter back.
26. According to Shri Divan, the present is a case of mass
tort resulting in the abridgment of the fundamental rights of
a large number of citizens for enforcement of which the writ
petition has been filed under Article 32. Shri Divan has
submitted, by relying on several decisions of this Court, thatPage 52
52
in a situation where the Court is called upon to enforce the
fundamental rights and that too of an indeterminate number
of citizens there can be no limitations on the power of Court.
It is the satisfaction of the Court that alone would be
material. Once such satisfaction is reached, the Court will be
free to devise its own procedure and issue whatever
directions are considered necessary to effectuate the
Fundamental Rights. The only restriction that the Court will
bear in mind is that its orders or directions will not be in
conflict with the provisions of any Statute. However, if the
statute does not forbid a particular course of action it will be
certainly open for the Court under Article 32 to issue
appropriate directions. According to the learned Amicus
Curiae in the present case none of the recommendations of
the CEC is inconsistent or contrary to any statutory
provision. They are at best supplemental to the existing
provisions seeking to achieve the same end through a
procedure which may be somewhat different. The
justification for this, according to the learned Amicus Curiae,
lies in the extraordinary situation that had occurred in the
present case.Page 53
53
27. At this stage, very briefly, the statutory scheme under the
three enactments in question may be taken note of. Under
the provisions of the MMDR Act the State Government has
been provided with the power of termination of licenses or
mining leases in the interest of regulation of mines and
minerals (Section 4A) whereas under Section 5, power has
been conferred not to grant mining leases in certain
specified situations. The Rule making power under Section
23C extends to framing of Rules by the State Government to
prevent illegal mining, transportation and storage of
minerals and to provide for checking and inspection of the
mining lease area. The Karnataka (Prevention of Illegal
Mining, Transportation and Storage of Minerals) Rules, 2011
has been notified on 5th February, 2011. Under the Mineral
Concession Rules, 1960, the expression “illegal mining” has
been explained in Rule 2(iia). The aforesaid Rules also
contemplate that while determining the extent of illegal
mining the area granted under the lease will be deemed to
have been held by the holder of the license under lawful
authority. Under the provisions of the EP Act, closure,
prohibition or regulation of industry, operation or process isPage 54
54
contemplated, whereas under the provisions of the FC Act
prior approval of the Central Government for use of forest
land for non forest purpose is mandatory. The question that
has been raised on behalf of the leaseholders is whether the
aforesaid provisions under the different statutes should be
resorted to and the recommendations made by the CEC
including closure of Category-“C” mines should not
commend for acceptance of this Court.
28.In Bandhua Mukti Morcha Vs. Union of India & Ors.
(1984) 3 SCC 161, this Court had the occasion to consider the
nature of a proceeding under Article 32 of the Constitution
which is in the following terms :-
“32. Remedies for enforcement of rights
conferred by this Part.
(1) The right to move the Supreme Court by
appropriate proceedings for the enforcement
of the rights conferred by this Part is
guaranteed.
(2) The Supreme Court shall have power to
issue directions or orders or writs, including
writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for
the enforcement of any of the rights conferred
by this Part.Page 55
55
(3) Without prejudice to the powers conferred
on the Supreme Court by clause ( 1 ) and
( 2 ), Parliament may by law empower any
other court to exercise within the local limits
of its jurisdiction all or any of the powers
exercisable by the Supreme Court under
clause (2).
(4) The right guaranteed by this article shall
not be suspended except as otherwise
provided for by this Constitution.”
29.The issue before the Court was one of release/freedom of an
indeterminate number of citizens from bonded labour and
was taken up by the Court by registering a letter addressed
to a Hon’ble Judge of this Court to the above effect as a writ
petition under Article 32. In the above context this Court in
para 13 of its order observed as follows :
“13. But the question then arises as to what is the
power which may be exercised by the Supreme
Court when it is moved by an “appropriate”
proceeding for enforcement of a fundamental
right. The only provision made by the Constitutionmakers in this behalf is to be found in clause (2) of
Article 32 which confers power on the Supreme
Court “to issue directions or orders or writs
including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for
enforcement of any of the fundamental rights”. It
will be seen that the power conferred by clause (2)
of Article 32 is in the widest terms. It is not
confined to issuing the high prerogative writs of
habeas corpus, mandamus, prohibition, certiorariPage 56
56
and quo warranto, which are hedged in by strict
conditions differing from one writ to another and
which to quote the words spoken by Lord Atkin in
United Australia Limited v. Barclays Bank Ltd.
[(1941) A.C. 1] in another context often “stand in
the path of justice clanking their mediaeval
chains”. But it is much wider and includes within
its matrix, power to issue any directions, orders or
writs which may be appropriate for enforcement of
the fundamental right in question and this is made
amply clear by the inclusive clause which refers to
in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari. It is not
only the high prerogative writs of mandamus,
habeas corpus, prohibition, quo warranto and
certiorari which can be issued by the Supreme
Court but also writs in the nature of these high
prerogative writs and therefore even if the
conditions for issue of any of these high
prerogative writs are not fulfilled, the Supreme
Court would not be constrained to fold its hands in
despair and plead its inability to help the citizen
who has come before it for judicial redress, but
would have power to issue any direction, order or
writ including a writ in the nature of any high
prerogative writ. This provision conferring on the
Supreme Court power to enforce the fundamental
rights in the widest possible terms shows the
anxiety of the Constitution-makers not to allow any
procedural technicalities to stand in the way of
enforcement of fundamental rights. The
Constitution-makers clearly intended that the
Supreme Court should have the amplest power to
issue whatever direction, order or writ may be
appropriate in a given case for enforcement of a
fundamental right. But what procedure shall be
followed by the Supreme Court in exercising the
power to issue such direction, order or writ? That is
a matter on which the Constitution is silent and
advisedly so, because the Constitution-makers
never intended to fetter the discretion of thePage 57
57
Supreme Court to evolve a procedure appropriate
in the circumstances of a given case for the
purpose of enabling it to exercise its power of
enforcing a fundamental right. Neither clause (2)
of Article 32 nor any other provision of the
Constitution requires that any particular procedure
shall be followed by the Supreme Court in
exercising its power to issue an appropriate
direction, order or writ. The purpose for which the
power to issue an appropriate direction, order or
writ is conferred on the Supreme Court is to secure
enforcement of a fundamental right and obviously
therefore, whatever procedure is necessary for
fulfilment of that purpose must be permissible to
the Supreme Court.”
This Court also found that it would be justified to depart, in
a proceeding under Article 32, from the strict adversarial
procedure and the principles embodied in the Code of Civil
Procedure and the Indian Evidence Act and in this regard
observed as under:
“...We do not think we would be justified in imposing
any restriction on the power of the Supreme Court to
adopt such procedure as it thinks fit in exercise of its
jurisdiction, by engrafting adversarial procedure on it,
when the Constitution-makers have deliberately
chosen not to insist on any such requirement and
instead, left it open to the Supreme Court to follow
such procedure as it thinks appropriate for the
purpose of securing the end for which the power is
conferred, namely, enforcement of a fundamental
right.”Page 58
58
Insofar as the practice of appointing commissions for
collection of basic facts to enable the Court to adjudicate the
issues concerning violation of fundamental rights is concerned it
would be necessary to extract the following observations
recorded by this Court in para 14 in the case of Bandhua
Mukti Morcha (supra).
“14...It is for this reason that the Supreme Court has
evolved the practice of appointing commissions for
the purpose of gathering facts and data in regard to a
complaint of breach of a fundamental right made on
behalf of the weaker sections of the society. The
report of the Commissioner would furnish prima facie
evidence of the facts and data gathered by the
Commissioner and that is why the Supreme Court is
careful to appoint a responsible person as
Commissioner to make an enquiry or investigation
into the facts relating to the complaint. It is
interesting to note that in the past the Supreme Court
has appointed sometimes a District Magistrate,
sometimes a District Judge, sometimes a professor of
law, sometimes a journalist, sometimes an officer of
the Court and sometimes an advocate practising in
the Court, for the purpose of carrying out an enquiry
or investigation and making report to the Court
because the Commissioner appointed by the Court
must be a responsible person who enjoys the
confidence of the Court and who is expected to carry
out his assignment objectively and impartially without
any predilection or prejudice. Once the report of the
Commissioner is received, copies of it would be
supplied to the parties so that either party, if it wants
to dispute any of the facts or data stated in the
report, may do so by filing an affidavit and the court
then consider the report of the Commissioner and the
affidavits which may have been filed and proceed toPage 59
59
adjudicate upon the issue arising in the writ petition.
It would be entirely for the Court to consider what
weight to attach to the facts and data stated in the
report of the Commissioner and to what extent to act
upon such facts and data.”
30.In M.C. Mehta Vs. Union of India & Ors. (1987) 1 SCC
395, this Court not only reiterated the view adopted in
Bandhua Mukti Morcha (supra) but also held that the
power under Article 32 would be both injunctive as well as
remedial and the power to grant remedial relief, naturally,
would extend to a wide range of situations and cannot be put
in a straight jacket formula.
31.M.C. Mehta Vs. Union of India & Ors. (2009) 6 SCC 142
is a case which would disclose a very proximate connection
with the case in hand. In the aforesaid case this Court was
called upon to answer the question as to whether in view of
the provisions of Section 4A of the MMDR Act (noticed earlier)
it would be appropriate to exercise the power under Article
32 read with Article 142 in order to suspend mining
operations in the Aravali Hills. The said question was
required to be gone into by the Court in the context of the
specific materials placed before it to show that indiscriminatePage 60
60
mining resulting in large scale environmental degradation
had occurred. In the above context, the contents of the
paragraphs 41 to 45 of the judgment in the case of M.C.
Mehta (supra) would be relevant:-
“41. On the legal parameters, Shri Diwan and Shri
Venugopal, learned Senior Counsel and Shri S.K.
Dubey, learned counsel, submitted that where law
requires a particular thing to be done in a particular
manner, it must be done in that manner and other
methods are strictly forbidden. In this connection, it
was urged that when Section 4-A postulates
formation of an opinion by the Central Government,
after consultation of the State Government, in the
matter of cancellation of mining leases in cases of
environmental degradation, the power needs to be
exercised by the State Government upon receipt of
request from the Central Government. According to
the learned counsel, therefore, this Court cannot
cancel the mining leases if there is alleged
environmental degradation as submitted by the
learned amicus curiae.
42. It was further submitted that measures under
Section 3(2)(v) of the EP Act, 1986 to restrict areas in
which industries shall or shall not be carried out can
only be undertaken by the Central Government
where it deems expedient to protect and improve the
quality of environment. In fact, according to the
learned counsel, when Aravallis Notification was
issued on 7-5-1992 it was issued under Section 3(2)
(v) by the Central Government. At that time, the
Central Government thought it fit not to place a
complete ban but to permit the industries in the
mining sector to carry on its business/operations
subject to restrictions enumerated in the said
notification.Page 61
61
43. It was lastly submitted that the
recommendations of CEC to impose a complete ban
on mining, particularly in cases where environmental
clearances are obtained would amount to an exercise
of power outside the 1957 Act and the Rules framed
thereunder. That, this Court cannot exercise powers
under Article 142 of the Constitution when specific
provisions are made under various forest and
environmental laws dealing with the manner and
procedure for cancellation/termination of mining
leases.
44. We find no merit in the above arguments. As
stated above, in the past when mining leases were
granted, requisite clearances for carrying out mining
operations were not obtained which have resulted in
land and environmental degradation. Despite such
breaches, approvals had been granted for
subsequent slots because in the past the authorities
have not taken into account the macro effect of such
wide-scale land and environmental degradation
caused by the absence of remedial measures
(including rehabilitation plan). Time has now come,
therefore, to suspend mining in the above area till
statutory provisions for restoration and reclamation
are duly complied with, particularly in cases where
pits/quarries have been left abandoned.
45. Environment and ecology are national assets.
They are subject to intergenerational equity. Time
has now come to suspend all mining in the above
area on sustainable development principle which is
part of Articles 21, 48-A and 51-A(g) of the
Constitution of India. In fact, these articles have been
extensively discussed in the judgment in [M.C. Mehta
case (2004) 12 SCC 118] which keeps the option of
imposing a ban in future open.”Page 62
62
The issue is not one of application of the above principles
to a case of cancellation as distinguished from one of
suspension. The issue is more fundamental, namely, the
wisdom of the exercise of the powers under Article 32 read with
Article 142 to prevent environmental degradation and thereby
effectuate the Fundamental Rights under Article 21.
32. We may now take up the decisions cited on behalf of the
leaseholders to contend that the power under Articles 32
and 142 ought not to be exercised in the present case and
instead remedies should be sought within the relevant
statutes. The sheet anchor is the case of Supreme Court
Bar Association Vs. Union of India and Another
reported in (1998) 4 SCC 409. We do not see how or why we
should lie entrapped within the confines of any of the
relevant Statutes on the strength of the views expressed in
Supreme Court Bar Association (supra). The observations
made in para 48 of the judgment and the use of words
“ordinarily” and “are directly in conflict” as appearing in the
said paragraph (underlined by us) directly militates againstPage 63
63
the view that the lease holders would like us to adopt in the
present case.
“48. The Supreme Court in exercise of its jurisdiction
under Article 142 has the power to make such order
as is necessary for doing complete justice “between
the parties in any cause or matter pending before it”.
The very nature of the power must lead the Court to
set limits for itself within which to exercise those
powers and ordinarily it cannot disregard a statutory
provision governing a subject, except perhaps to
balance the equities between the conflicting claims of
the litigating parties by “ironing out the creases” in a
cause or matter before it. Indeed this Court is not a
court of restricted jurisdiction of only dispute-settling.
It is well recognised and established that this Court
has always been a law-maker and its role travels
beyond merely dispute-settling. It is a “problemsolver in the nebulous areas” [see K. Veeraswami v.
Union of India (1991) 3 SCC 55)] but the substantive
statutory provisions dealing with the subject-matter
of a given case cannot be altogether ignored by this
Court, while making an order under Article 142.
Indeed, these constitutional powers cannot, in any
way, be controlled by any statutory provisions but at
the same time these powers are not meant to be
exercised when their exercise may come directly in
conflict with what has been expressly provided for in
a statute dealing expressly with the subject.”
33. Even if the above observations is understood to be laying
down a note of caution, the same would be a qualified one
and can have no application in a case of mass tort as has
been occasioned in the present case. The mechanism
provided by any of the Statutes in question would neither bePage 64
64
effective nor efficacious to deal with the extraordinary
situation that has arisen on account of the large scale
illegalities committed in the operation of the mines in
question resulting in grave and irreparable loss to the forest
wealth of the country besides the colossal loss caused to the
national exchequer. The situation being extraordinary the
remedy, indeed, must also be extraordinary. Considered
against the backdrop of the Statutory schemes in question,
we do not see how any of the recommendations of the CEC,
if accepted, would come into conflict with any law enacted
by the legislature. It is only in the above situation that the
Court may consider the necessity of placing the
recommendations made by the CEC on a finer balancing
scale before accepting the same. We, therefore, feel
uninhibited to proceed to exercise our constitutional
jurisdiction to remedy the enormous wrong that has
happened and to provide adequate protection for the future,
as may be required.
ISSUE NO.3
Sanctity of the process of survey undertaken by the
Joint Team constituted by this Court’s order dated 6thPage 65
65
May, 2011 and the determination of the boundaries of
the leases on the basis of the said survey.
34. The above issue will require examination from two
perspectives. The first is the fairness of the procedure adopted
in carrying out the survey and the second is with regard to
acceptability of the technical part of the survey process. In so
far as the fairness of the procedure adopted is concerned it is
on record that notice of the dates proposed for survey of a
particular lease was intimated to the lease holder well in
advance to enable the lease holder or his representative to be
present at the site while the survey is conducted. The field
survey was done by 7 teams consisting of one surveyor each
from the Karnataka Forest Department, Karnataka Mines and
Geological Department, Karnataka Revenue Department and a
representative of the National Institute of Technology,
Surathkal. The field survey undertaken by each team was
supervised by the Joint Team constituted by this Court. During
the field survey, the representative of the concerned lessees
were present and the Mahazars (Panchnamas) for each day’s
survey were prepared incorporating the details of the survey
carried out. The said Panchnamas were signed by, apart fromPage 66
66
the Government representatives and the representative of the
National Institute of Technology, Surathkal, also by the
concerned lessee or their representatives. The readings
recorded during the field survey were shared with the
concerned lessees or their representatives and before finalizing
the survey sketches the concerned lessees or their
representatives were given a personal hearing. After the field
survey was completed, in terms of the order of the Court dated
23.9.2011, the representations filed by the leaseholders against
the findings of the Joint Team were reconsidered by the Joint
Team and personal hearing was afforded to 122 lease holders.
On the basis of the said hearings, necessary corrections were
made in respect of 33 number of leases. Thereafter, the final
Report of the CEC dated 3.2.2012 was submitted to the Court.
In terms of the Court’s order dated 10.2.2012, the CEC again
considered the representations filed by as many as 66 lease
holders. The findings of the Joint Team in respect of 4 leases
were modified by the CEC though the said modification did not
result into any change of categorization. Two representations,
one filed by M/s. V.S. Lad & Sons and another by M/s. Hothur
Traders have been placed before the Court for appropriatePage 67
67
orders [issue is being dealt with separately] whereas the rest of
the representations were rejected by the CEC. In the above
facts, procedural fairness in the process of survey carried out by
the Joint Team is writ large and there can be no room for any
doubt so as to question the sanctity of the survey process on
the above stated ground.
35. This will require the Court to go into the details of the
technical aspect of the survey which was conducted by the Joint
Team. The consideration of the details of the survey
undertaken, naturally, has to be in the backdrop of the multifold
complaints that have been raised on behalf of the leaseholders
in the several IAs filed. As already noted, on a very broad
plane, the complaints in this regard are that the Joint Team has
ignored judicial orders passed in respect of boundaries between
neighbouring/adjacent leases; reduction of the area of the lease
provided in the lease deed/lease sketch; shifting of the lease
area to a new location as a result of the survey. Specifically,
objections have been raised to the effect that overburden
dumps in different areas have been taken into account to come
to the finding that mining had been carried out in such areasPage 68
68
without necessary clearances under the FC Act (in case of forest
areas) or in the absence of mining leases in respect of such
areas (non forest areas) though the activity in question i.e.
dumping does not amount to mining operations under the
MMDR Act.
36. A consideration of the documents submitted by the
learned Amicus Curiae and those submitted on behalf of the
State of Karnataka would go to show that in carrying out the
survey, the Joint Team had encountered some serious
difficulties. The same may be enumerated below:-
i) the sanctioned lease sketch did not have
any reference point(s) and with reference
to which the location of the lease can be
decided;
ii) there is mis-match between the location(s)
of the reference point(s) on the ground
vis-à-vis the details of such reference
points(s) provided in the lease sketches;
iii) the reference point(s) have been
destroyed/altered on the ground;
iv) the Survey and Demarcation sketch does not
tally with the lease sketch; and
v) there is inherent defect in the lease
sketch.”Page 69
69
37. To overcome the said difficulties, before the
commencement of the actual survey, a pre-survey examination
was undertaken to identify the boundary pillars, rock marks,
revenue points etc. as shown in the lease sketch. This was
done with the help of the government staff as well as the
representative of the concerned lessee. Instead of measuring
the length of each arm of the lease sketch by using the
conventional engineering scale and instead of measuring the
angle by using a protractor, the original lease sketch was
scanned and the digitized so that the length of each arm and
the angles could be precisely measured. Thereafter survey was
undertaken by use of the Total Station Method, which,
undoubtedly, is the state of the art technology with room for
negligible error. A temporary control point was identified
keeping in view the visibility of the maximum number of
boundary points from the identified control point. Thereafter,
the distance between the control point and the visible boundary
points were measured and recorded in the instrument which
uses an infra-red ray. The instrument was shifted to another
temporary control point and in a similar manner the distance
between the said control point and remaining boundary pointsPage 70
70
were measured. After completing the reading of all the points
the margin of error for the instrument was determined (which
was virtually negligible). Thereafter the data from the total
station was downloaded on a computer using the autocadd
software for preparation of the survey sketch. The survey
sketch so prepared was superimposed on the digitized lease
sketch to ascertain the encroachment if any. Also, the details of
the survey sketch was superimposed on the satellite imageries
to further verify the correctness of the process of survey
undertaken. A manual calculation of the lease areas was also
undertaken to compare with the calculation of the lease areas
as per the digitized lease sketch. The difference between the
two measurements in case of 34 number of ‘C’ category leases
is less than +/- 05ha. The relevant details in this regard which
are available in the compilation of documents submitted by the
State of Karnataka would be illuminating and are, therefore,
indicated below:
S.No. Name of the Lessee M.L.
No.
Sanctione
d area in
Ha
Area as per
manual
calculation
in Ha
Areas as
per
digitized
sketch in
Ha
Difference
between
Manually
calculated
area &
Digitised
area
1 2 3 4 5 6 7
1 J.M.
VRISHVENDRAYYA
2173 3.36 3.348 3.54 0.19Page 71
71
2 VEEYAM PVT. LTD 2615 20.23 20.196 20.04 -0.16
3 AMBIKA GHORPADE 2354 4.95 4.495 4.84 0.35
4 MYSORE
MANGANESE
COMPANY
2603 3.24 3.07 3.16 0.10
5 HOTHUR TRADERS 2313 21.11 22.117 21.61 -0.51
6 M. DASHARATHA
RAMI REDDY
2560 19.95 19.59 19.46 -0.13
7 BHARAT MINES AND
MINERALS
2245 26.20 23.3 24.47 1.17
8 ASSOCIATED
MINING COMPANY
2434 10.12 10.03 10.14 0.11
9 B.R.
YOGENDRANATH
SINGH
2186 13.00 16.592 15.89 -0.70
10 LATHA MINING CO.
(D. NARAYANA)
958 4.05 4 3.93 -0.07
11 CANARA MINERALS 2635 11.34 12.12 11.52 -0.60
12 THANGA VELU &
OTHERS
2585 60.70 62.28 60.92 -1.36
13 TRADING MINING
COMPANY
1732 5.26 5.31 5.45 0.14
14 SRI. N. MANZOOR
AHMED
1324/
2616
15.97 15.65 15.71 0.06
15 SMT KAMALA BAI 1442 13.45 13.02 13.44 0.42
16 SUDARSHAN SINGH
(MAHALAKSHMI
MINERALS)
2579 8.09 8.37 8.11 -0.26
17 RAMGAD MINERALS
AND MINING PVT
LTD
2451 24.28 24.23 24.04 -0.19
18 TRIDENT MINERALS 2315 32.27 31.606 32.43 0.82
19 ALLUM
VEERABHADRAPPA
2436 28.07 23.553 24.53 0.98
20 KANHAYALAL
DUDHERIA
2563 30.76 28.73 30.09 1.36
21 ADARSHA
ENTERPRISES
2369 3.03 2.91 2.98 0.07
22 MATHA MINERALS 1975/
2600
129.5 125.5 129.16 3.66
23 S.B. MINERALS 2393 40.47 40.67 40.38 -0.29
24 KARNATAKA LIMPO 2650 6.07 6.94 6.47 -0.47
25 ANJANA MINERALS 2519 4.55 4.5 4.53 0.03
26 DECCAN MINING
SYNDICATE (P) LTD
2525 19.02 17.015 17.43 0.41
27 P. ABUBAKAR 2183 14.00 13.756 13.85 0.09
28 LAKSHMI
NARAYANA MINING
COMPANY
2487 105.22 103.06 86.18 -16.88
29 KAMALA BAI 2187 23.47 23.43 23.71 0.28
30 MYSORE
STONEWARE PIPES
AND POLTERIES
(P)LTD.
2521 122.72 118.3 122.65 4.35Page 72
72
31 TEJA WORK 2353 4.85 4.74 4.83 0.09
32 RAJAPURA MINES 2190 93.74 89.62 91.7 2.13
33 H.G.
RANGANGOWDA
2148 60.70 60.3 60.66 0.36
34 NIDHI MINING PVT.
LTD.
2433 31.84 29.195 29.49 1.30
35 S.B. MINERALS 2550 44.52 38.819 39.40 0.58
36 MILANA MINERALS
(LAKSHMI & CO.)
1842 99.56 95.556 99.55 3.99
37 DEEP CHAND
KISHANLAL
2348 125.45 128.546 124.92 -3.63
38 THUNGABHADRA
MINERALS LTD.
2365 125.58 135.04
163.74 -4.46
39 THUNGABHADRA
MINERALS LTD.
2366 33.97 33.16
40 M SRINIVASULU 2631 74.86 78.565 75.14 -3.43
41 M.
CHANNAKESHAVA
REDDY (SRI
LAKSHMI
NARASHIMHA
MINING CO.
2566 7.85 8 7.57 -0.43
42 SPARK LINE MINING
CORPORATION
2567 4.86 4.93 4.86 -0.07
43 MINERAL MINERS
AND TRADERS
2185
A
46.13 44.11 44.42 0.31
44 MYSORE MINERALS
LTD.
995 33.60 82.2 32.89 -49.31
45 V.S. LAD & SONS 2290 105.06 98.12 100.54 2.42
46 KARTHIKEYAS
MANGANESE
2559 27.23 27.236 26.71 -0.53
47 G RAJSHEKAR 2229 129.49 127.83 127.42 -0.41
48 RAMA RAO PAOL 2621 28.34 26.33 33.80 7.47
49 SMT RAZIA
KHANUM
2557/
1575
12.58 12.0578 12.54 0.48
38. The participation of the lessee or his representative
through out the process of survey by the Joint Team; the details
of the manner of conduct of the actual process of survey
delineated above; the use of the state of the art technology; the
composition of the Joint Team entrusted with the responsibility
of the survey and the constitution of the 7 teams that
conducted the field survey under the supervision of the JointPage 73
73
Team; the two stages of re-verification of the findings of the
survey in the light of the objections raised by the lease holders
under orders of this Court dated 26.9.2011 and 10.2.2012 and
the corrections made on the basis thereof can leave no doubt
as to the credibility of the findings of the survey conducted
under the orders of the Court. True it is that we cannot claim to
be experts; but we need not be to see what is ex facie evident.
Therefore, notwithstanding the protracted arguments advanced
on behalf of lease holders and the large scale reference to
sketches, maps and drawings filed before this Court by the said
lease holders, we are satisfied that all complaints and
grievances must fade away in the light of the survey
undertaken by the Joint Team and the events subsequent
thereto. It would also be significant to take note of the fact that
in the written submission on behalf of the Federation of Indian
Mineral Industries (FIMI), in the opening paragraph it has been
stated as under.
“The applicant submits that FIMI has full faith in
the integrity and fairness of the survey done by
the Joint Team and recommended by CEC. FIMI is
in full agreement with the recommendations made
by CEC with regard to Categories A and B and thePage 74
74
directions issued by this Hon’ble Court. FIMI is
simultaneously of the view that instead of
cancellation of Category ‘C’ mining leases, these
may be directed to make appropriate
compensatory afforestation payment, undertake
R&R work as per R& R Plan prepared by ICFRE and
approved by CEC and after successful completion
and implementation of R&R Plan, they should be
allowed to recommence mining operations in such
leases.”
39. We make it clear that we have not understood the above
statement as an admission on the part of the Federation and it
is on a consideration of the totality of the facts placed before us
that we accept the findings of the survey conducted by the
Joint Team constituted by the orders of this Court and the
boundaries of each of the leases determined on that basis. We
further direct that in supersession of all orders either of the
authorities of the State or Courts, as may be, the boundaries of
leases fixed by the Joint Team will henceforth be the boundaries
of each of the leases who will have the benefit of the lease area
as determined by the Joint Team. All proceedings pending in
any court with regard to boundaries of the leases involved in
the present proceeding shall stand adjudicated by means ofPage 75
75
present order and no such question would be open for reexamination by any body or authority.
40. Before proceeding to the next issue we would like to
observe that the contention urged on behalf of some of the
lessees that dumping of mining waste (overburden dumps) do
not constitute operations under Section 2(d) of the MMDR Act is
too naive for acceptance. The wide terms of the definition
contained in Section 2(d) of the MMDR Act encompasses all
such activity within the meaning of expression “mining
operations”. Use of forest land for such activity would require
clearance under the FC Act. In case the land used for such
purpose is not forest land the mining lease must cover the land
used for any such activity.
ISSUE NO.4
Acceptability of the Recommendations of the CEC with
regard to (i) categorization, (ii) Reclamation and
Rehabilitation (R&R) Plans, (iii) Reopening of Category
‘A’ and ‘B’ mines subject to conditions, (iv)
Closure/reopening of Category ‘C’ mines and (v) future
course of action in respect of Category ‘C’ mines if
closure thereof is to be ordered by the Court
41. In the light of the discussions that have preceded sanctity
of the procedure of laying information and materials before thePage 76
76
Court with regard to the extent of illegal mining and other
specific details in this regard by means of the Reports of the
CEC cannot be in doubt. Inter-generational equity and
sustainable development have come to be firmly embedded in
our constitutional jurisprudence as an integral part of the
fundamental rights conferred by Article 21 of the Constitution.
In enforcing such rights of a large number of citizens who are
bound to be adversely affected by environmental degradation,
this Court cannot be constrained by the restraints of procedure.
The CEC which has been assisting the Court in various
environment related matters for over a decade now was
assigned certain specified tasks which have been performed by
the said body giving sufficient justification for the decisions
arrived and the recommendations made. If the said
recommendations can withstand the test of logic and reason
which issue is being examined hereinafter we will have no
reason not to accept the said recommendations and embody
the same as a part of the order that we will be required to
make in the present case.
(i) CategorizationPage 77
77
42. The issue is whether categorization on the basis of
percentage of the encroached area qua the total lease area is
an arbitrary decision. Arbitrariness in the adoption of a criteria
for classification has to be tested on the anvil of Article 14 and
not on the subjective notions of availability of a better basis of
classification. The basis suggested i.e. total encroached area
has the potential of raising questions similar to the ones now
raised on behalf of the lease holders. This is on account of the
lack of uniformity in the areas covered by the different leases in
question. The test, therefore, ought not to be what would be a
‘better’ basis for the categorization for that would introduce
subjectivity in the process; the test is whether categorization on
the basis adopted results in hostile discrimination and adoption
of the criteria of percentage has no reasonable nexus with the
object sought to be achieved, namely, to identify the lessees
who have committed the maximum violations and damage to
environment. Viewed from the aforesaid perspective, the
categorization made does not fail the test of reasonableness
and would commend for our acceptance.Page 78
78
In this regard, we may take note of two IAs (IA.No.74 of
2012 and I.A.No.4 of 2012) filed by Federation of Indian Mineral
Industries which body claims membership of a vast number of
the lessees involved in the present proceedings. In the
aforesaid IAs, as already noticed in a different context, the
Federation has unequivocally accepted the findings of the
survey conducted by the Joint Team and the recommendation
of the CEC in so far as categorization of the leases and the
actions suggested for reopening of Category ‘A’ and ‘B’ mines
along with other pre-conditions stipulated including the
preparation of the R & R plans. The only caveat in this regard is
in respect of category ‘C’ mines. The Federation had suggested
that the said mines be also allowed to reopen subject to similar
or even more stringent conditions and, alternatively, for
reopening of 39 total out of the total of 49 category ‘C’ mines by
adoption of certain more liberal criteria than those
recommended by the CEC. In the totality of the circumstances,
we are of the view that the categorization suggested by the
CEC in its Report dated 3.2.2012 should be accepted by us.
(ii) Conditions which have been suggested for
opening of Category ‘A’ mines and additionally
the R& R Plans for Category ‘B’ minesPage 79
79
43. The conditions subject to which Category ‘A’ and ‘B’ mines
are to be reopened and the R&R Plans that have been
recommended as a precondition for reopening of Category ‘B’
mines are essentially steps to ensure scientific and planned
exploitation of the scarce mineral resources of the country. The
details of the preconditions and the R&R plans have already
been noticed and would not require a repetition. Suffice it
would be to say that such recommendations are wholesome
and in the interest not only of the environment and ecology but
the mining industry as a whole so as to enable the industry to
run in a more organized, planned and disciplined manner. FIMI
was actively associated in the framing of the guidelines and the
preparation of the R&R Plans. There is nothing in the
preconditions or in the details of the R&R plans suggested
which are contrary to or in conflict or inconsistent with any of
the statutory provisions of the MMDR Act, EP Act and FC Act. In
such a situation, while accepting the preconditions subject to
which the Category ‘A’ and ‘B’ mines are to be reopened and
the R&R plans that must be put in place for Category ‘B’ mines,
we are of the view that the suggestions made by the CEC forPage 80
80
reopening of Category ‘A’ and ‘B’ mines as well as the details of
the R&R plans should be accepted by us, which we accordingly
do. This will bring us to the most vital issue of the case, i.e., the
future of the Category ‘C’ mines.
44. The precise extent of illegal mining that took place in the
three districts of Karnataka have been noted in detail in an
earlier part of this order (para 23). The same, therefore, will not
require any repetition. Illegal mining apart from playing havoc
on the national economy had, in fact, cast an ominous cloud on
the credibility of the system of governance by laws in force. It
has had a chilling and crippling effect on ecology and
environment. It is evident from the compilation submitted to
the Court by the CEC that several of the Category ‘C’ mines
were operating without requisite clearances under FC Act or
even in the absence of a mining lease for a part of the area
used for mining operations. The satellite imageries placed
before the Court with regard to environmental damage and
destruction has shocked judicial conscience. It is in the light of
the above facts and circumstances that the future course of
action in respect of the maximum violators/polluters, i.e.,Page 81
81
Category ‘C’ mines has to be judged. While doing so, the Court
also has to keep in mind the requirement of Iron Ore to ensure
adequate supply of manufactured steel and other allied
products.
45. Once the result of the survey undertaken and the
boundaries of the leases determined by the Joint Team has
been accepted by the Court and the basis of categorization of
the mines has been found to be rational and constitutionally
permissible it will be difficult for this Court to visualize as to how
the Category ‘C’ mines can be allowed to reopen. There is no
room for compassion; fervent pleas for clemency cannot have
even a persuasive value. As against the individual interest of
the 49 Category ‘C’ leaseholders, public interest at large would
require the Court to lean in favour of demonstrating the efficacy
and effectiveness of the long arm of the law. We, therefore,
order for the complete closure of the Category ‘C’ mines and for
necessary follow up action in terms of the recommendations of
the CEC in this regard, details of which have already been
extracted in an earlier part of this order.
ISSUE NO.5Page 82
82
Other Miscellaneous/Connected Issues
46. We have noticed that by an order dated 2.11.2012 passed
by this Court an embargo has been placed on grant of fresh
mining licenses. In view of the developments that have taken
place in the meantime and in view of the fact that we are
inclined to accept the recommendations at Sl. Nos. VI and VII of
the CEC’s Report dated 3.2.2012 (Pg.56 of the Report), we do
not consider it necessary to continue with the order dated
2.11.2012 in so far as grant of fresh leases are concerned.
47. In so far as settlement of the inter-state boundaries
between the States of Andhra Pradesh and Karnataka is
concerned, both the States have agreed to have the boundaries
fixed under the supervision of the Geological Survey of India. In
view of the agreement between the States on the said issue we
permit the States to finalize the issue in the above terms. The
operation of the 7 leases (Category B1) located on or near the
inter-State boundary is presently suspended. Until the
boundary issue between the two States is resolved resumption
of mining operations in the 7 leases cannot be allowed.Page 83
83
48. The CEC has provisionally categorised M/s. S.B. Minerals
(ML No.2515) and Shanthalakshmi Jayaram (ML No.2553) in
Category “B” though the encroached area under illegal mining
pits has been found to be 24.44% and 23.62% respectively.
According to the CEC, it is on account of “the complexities
involved in finalizing the survey sketches and in the absence of
inter-village boundary” that the said leases have been placed in
Category “B” instead of Category “C”. We cannot agree with
the tentative decision of the CEC. On the basis of the findings
of the survey and the categorization made, both of which have
been accepted by the Court by the present order, we direct that
the aforesaid two leases, namely, M/s. S.B. Minerals and
M/s. Shanthalakshmi Jayaram be placed in Category “C”.
Necessary consequential action will naturally follow.
49. The CEC in its Report dated 28.3.2012 has placed the
cases of M/s. V.S. Lad & Sons and M/s. Hothur Traders (placed in
Category “C”) for final determination by the Court. The CEC has
reported that the encroachment by M/s. V.S. Lad & Sons is only
in respect of the overburden dumps and exceeds the
percentage (15%) marginally, i.e., by 0.17% which could veryPage 84
84
well be due to the least count error used by the Joint Team. In
so far as M/s. Hothur Traders is concerned the CEC in its Report
dated 28.3.2012 has recorded that according to the lessee it
has carried on its mining operation for the last 50 years in the
lease area allotted to it which may have been wrongly identified
in the earlier surveys and demarcations by taking into account
a wrong reference point.
Having considered the facts on which the two lessees have
sought upgradation from “C” to “B” Category we are afraid that
such upgradation cannot be allowed. Both the lessees, in fact,
accept the results of the survey by the Joint Team which
findings have already been accepted by us.
50. In the result, we summarize our conclusions in the matter
as follows:-
(1) The findings of the survey conducted by the
Joint Team constituted by this Court by order dated
6.5.2011 and boundaries of the leases in question as
determined on the basis of the said survey is hereby
approved and accepted.
Page 85
85
(2) The categorization of the mines (“A”, “B” and
“C”) on the basis of the parameters adopted by the
CEC as indicated in its Report dated 3.2.2012 is
approved and accepted.
(3) The order of the Court dated 13.4.2012
accepting the recommendations dated 13.3.2012 of
the CEC (in modification of the recommendations of
the CEC dated 3.2.2012) in respect of the items (A) to
(I) is reiterated. Specifically, the earmarked role of
the Monitoring Committee in the said order dated
13.4.2012 is also reiterated.
(4) The order of the Court dated 3.9.2012 in respect
of reopening of 18 Category “A” mines subject to the
conditions mentioned in the said order is reiterated.
(5) The order of the Court dated 28.9.2012 in all
respects is reiterated.
(6) The recommendations of the CEC contained in
the Report dated 15.2.2013 for reopening of
remaining Category “A” mines and Category “B”
mines (63 in number) and sale of sub-grade iron ore
subject to the conditions mentioned in the said
Report are approved.
(7) The recommendations contained in paragraphs
VI and VII (Pg. 56 to 57) of the CEC Report dated
Page 86
86
3.2.2012 are accepted, meaning thereby, the leases
in respect of “C” Category mines will stand cancelled
and the recommendations of the CEC (para VII
Pg. 56) of Report dated 3.2.2012 with regard to the
grant of fresh leases are accepted.
(8) The proceeds of the sales of the Iron Ore of the
‘C’ Category mines made through the Monitoring
Committee will stand forfeited to the State. The
Monitoring Committee will remit the amounts held by
it on this account to the SPV for utilization in
connection with the purposes for which it had been
constituted.
(9) M/s. V.S. Lad & Sons, M/s. Hothur Traders, M/s.
S.B. Minerals (ML No. 2515) and M/s. Shanthalakshmi
Jayaram (ML No. 2553) will be treated as “C”
Category mines and resultant consequences in
respect of the said leases will follow.
(10) The operation of the 7 leases placed in “B”
category situated on or nearby the KarnatakaAndhra Pradesh inter-State boundary will remain
suspended until finalisation of the inter-State
boundary dispute whereupon the question of
commencement of operations in respect of the
aforesaid 7 leases will be examined afresh by the
CEC.
Page 87
87
(11) The recommendations made in the paragraph
VIII of the Report of the CEC dated 3.2.2012
(pertaining to M/s. MML, Pg.57) is accepted. The
recommendations made in paragraphs IX, X, XII (in
respect of confiscated iron-ore) XIII and XIV of the
said Report dated 3.2.2012 (Pg. 57-60) will not
require any specific direction as the same have
already been dealt with or the same have otherwise
become redundant, as may be.
(12) The recommendations made in paragraph XI
(grant of fresh leases) and paragraph XII (in respect
of pending applications for grant of mining leases) of
the CEC’s Report dated 3.2.2012 (Pg. 59) are not
accepted.
In view of the discussions and conclusions
in para 44 of the present order, this Court’s order
dated 02.11.2012 placing an embargo on grant of
fresh mining leases need not be continued any
further. Grant of fresh mining leases and
consideration of pending applications be dealt with in
accordance with law, the directions contained in the
present order as well as the spirit thereof.
(13) Determination of the inter-State boundary
between Karnataka and Andhra Pradesh in so far
as the same is relevant to the present proceedings,
as agreed upon by the two States, be made through
the intervention of the office of Surveyor General of
India.
Page 88
88
51. We also direct that all consequential action in terms of the
present order be completed with the utmost expedition. The
writ application filed by Samaj Parivartan Samudaya and IAs
shall stand disposed of in terms of our abovestated conclusions.
SLP (C) Nos.7366-7367 of 2010, SLP (C) Nos.32690-
32691 of 2010, WP (Crl.) No.66 of 2010, SLP (C)
Nos.17064-17065 of 2010, SLP (C) No…….(CC No. 16829
of 2010), SLP (C) No......(CC No. 16830 of 2010), WP (C)
No.411 of 2010, SLP (C) No.353 of 2011 and WP (C)
No.76 of 2012
52. All these matters are de-tagged and directed to be listed
separately.
……………………………….J.
(Aftab Alam)
……………………………….J.
(K.S. Radhakrishnan)
……………………………….J.
(Ranjan Gogoi)
New Delhi;
April 18, 2013.
