Content Provider | Supreme Court of India |
---|---|
e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Mines and Minerals - Illegal mining of enonnous proportions in districts of Odisha |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Writ Petition |
Court | Supreme Court of India |
Disposal Nature | Directions Issued |
Headnote | Mines and Minerals - Illegal mining of enormous proportionsin districts of Odisha - Writ petition partly based on reports givenby Justice MB. Shah Commissions of Inquiry sought directions,cinter alia, to Union of India and Government of Odisha to immediatelystop forthwith all illegal mining in the State of Odis ha and for CBIinvestigation into such illegal mining - Plea of mining lease holdersthat reports given by Commission were v,itiated as they were notgiven notice u/ss.8B, 8C of the 1952 Act. and thus. the veryfoundation of the writ petition goes away - Held: First report given by Commission was a general, overall perspective on the subject -No irregularity or illegality has been committed so as to vitiate thefirst report - Second report went into specific details of severalmining lease holders, but herein one is not concerned with thosespecifics - Therefore. whether notices were issued or not to the lease holders who were the subject matter of discussion in the secondreport is of no consequence -However. the reports of theCommission are not being relied upon for the purpose of presentjudgment and order - Further. for now, no direction is being givenwith regard to any investigation by CBI - Expert Committee be setup under the guidance of a retired judge of Supreme Court to identifythe lapses occurred over the years enabling rampant illegal orunlawful mining in Odisha and measures to prevent this ji·omhappening in other parts of the country - Further; directions issued -Commissions of Inquiry Act. 1952 - ss.8B. 8C.Committees:Central Empowered Committee (CEC)- Constitution of-Held:CEC was first constituted by Supreme Court in T. N. Godavarmacase as an interim body - Thereafter, it was constituted bynotification issued uls.3(3) of the 1986 Act - It has continued fimctioning and is now an established body which renders extremelyvaluable advice to this Court- Environment (Protection) Act, 1986 -s.3(3).Central Empowered Committee (CEC) - Jurisdiction of -Challenge to - Plea of lease holders that in giving the report onmining. CEC tfXceeded its remit - Held: Not tenable - Jurisdictionof CEC was not limited and it was expected to give a detailed reporton all aspecrs of illegal mining or mining being carried out withoutany lawful authority in whatever manne1:lllines and Minerals (Development and Regulatio11) Act, 1957(MMDR) - ss.4(1). 4(2). 5(2). IO. 12. 13. 18. 21 - Grant ofmi11inglease -- Schenie of - Discussed.s. 6 - Maximum area for which a prospecting licence ormining lease may be granted - Violation of by various companies -If any - Discussed.Mineral Concession Rules, 1960 (MCR):Distinction between A!CR and MCDR - Held: The distinctionis that the MCR deal. inter alia. with the grant of a mining lease andnot commencement of mining operations - However. the MCDR deal.inter alia. with the commencement of mining operations and protectionof environment by preventing and controlling pollution which mighthe caused by mining operations- Mineral Conservation andDevelopment Rules. 1988 (MCDR).r.22A - Held: r.22A makes it clear that mining operationsshall be undertaken only in accordance with the duly approvedmining plan - Therefore. a mining plan is of considerable importancefor a mining lease holder and is in essence sacrosanct - A miningscheme and a mining plan are a sine qua non for the grant of amining lease.1:24A - Plea of mining lease holders that since many of themwere granted first deemed statutory renewal of mining lease ulr.24A.the requirements of Environment Impact Assessment (EJA) Notificationof 1994 (EIA 1994) would not be applicable - Held: Nor tenable -For renewal qf mining lease. an application is required to be madeby mining lease holders and the deemed renewal clause ulr.24A willcome into operation onzv ajier an application for renewal is made in Form Jin Schedule I of MCR - Even otherwise, renewal of amining lease would require a prior environmental clearance (EC)in terms of EIA 1994. Ar.37 - Violation of - Several mining lease holders enteredinto raising contracts which were actually a transfer of lease aspostulated by r. 3 7 - Held: Rule 3 7 provides. inter alia, that a mining Blessee shall not without the previous consem in writing of the StateGovernment or Central Government, as the case may be, assign.sublet, mortgage, or in any other manne1; transfer the mining lease,or any right,. title or interest therein - It will he appropriate if afresh look is given to the raising contracts entered into by mininglease holders and the raising contractor - Committee appointed.Mineral Conservation and Development Rules, 1988 (MCDR):Purpose and objective of - Held: Is to ~~sure that miningoperations are cmried out in a scientific manner with a high degreeof responsibility including responsibility in protecting and preserving the environment and the flora of the area.r. 31 - Protection of environment under - Obligation of - Held:Rule 31 provides that every holder of a mining lease shall take allpossible precautions for the protection of environment and controlof pollution while conducting any mining operations in the area - Air (Prevention and Control of Pollution) Act, 1981 - Environment(Protection) Act, 1986 - Water (Prevention and Control of Pollution)Act. 1974.Notification/Circular:Environment Impact Assessment (E!A) Notification dtd. 27'" Jan. 1994 - Nature of - Held: It is a prohibitory notification anddirects that on and from the date of its publication in the officialgazette: (i) expansion or modernisation of any activity (if pollutionload is to exceed the existing one) and (ii) a new project listed inSchedule I to the notification. shall not be undertaken unless it hasbeen accorded EC by the Central Government in accordance withthe procedure specified in the notification - Further. EIA 1994 isalso mandatory in character - It is applicable to all miningoperations, new mining projects and renewal of mining leases -Environment (Protection) Act, 1986 - ss.3(1). 3(2){v) - Environment(Protection) Rules. 1986 - r.5(3)(d). Environment Impact Assessment (EIA) Notification dtd. 27'''Jan. 1994 - Grant under, of environment clearance (EC) - Purposeof - Held: On receipt of an EC a mining lease holder can extract amineral only from a specified site, upto the sanctioned capacityand only for a period of five years from the date of grant of EC -Consequently. a mining lease holder would necessarily have to obtaina fresh EC every five years and can also apply for an increase inthe sanctioned capacity - Environment.Environment Impact Assessment (EIA) Notification dtd. 27"'Jan. 1994 - Grant under. of EC- Operation of- Held: There is noconcept of a retr(Jspective EC - Its validity effectively starts onlyfrom the day it is granted - It takes precedence over the mininglease - Thus, mining operations under a mining lease are dependenton and 'subordinate· to the EC - Environment.Environment Impact Assessment (E/A) Notification dtd. 27"'Jan. 1994 - EC - Requirement of. for ongoing mining project -Exemption. when given - Held: An exemption is granted from therequirement of obtaining an EC if there is no expansion and theexisting pollution load is not exceeded - However. a no objectioncertificate from the SPCB is necessary for continuing the miningoperations - Env,environment.Environment Impact Assessment (EIA) Notification dtd. 27"'Jan. 1994 - Expression and modernisation of existing projects -Base year for considering pollution load while proposing anyexpansion activity - Determination of - Discussed - Environment.Environment Impact Assessment (EIA) 14"' September. 2006 -Requirement under - Environment Clearance (EC) - Held: EIA 2006required prior EC for projects or activities mentioned in the Scheduleto it. both for major as well as minor minerals. if the leased area is5 hectares or more - Environment.Environment Impact Assessment (EIA) 14"' September. 2006 -Environment Clearance (EC) - Grant of - If retrospective - Held:An EC will come into force not earlier than the date of its grant -The concept of an ex post facto or a retrospective EC is completelyalien to environmental jurisprudence - Environment.Mines and Minerals:Mining plan - Actual Production limit - Violations of - Held: A mining plan is valid for a period of five years - 20% deviationfrom the mining plan (in terms of over-production) would hereasonable and permissible - A mining lease holder cannot extractthe five year quantity (with a variation of 20%) in one or two yearsonly. Illegal Mining - What is - Plea of lessees that a miningoperation only outside the mining lease area would constitute 'illegalmining· - Held: Not tenable - J//egal mining takes within its foldexcess extraction of a mineral over the permissible limit even withinthe mining lease area which is held under lawful authority. if thatexcess extraction is contrary to the mining scheme. the mining plan,the mining lease or a statutory requirement - Mines and Minerals(Development and Regulation) Act. 1957 - s.23 C - MineralConcession Rules. 1960 - r.2(iia) .Encroachment - lllegal mining outside the sanctioned miningareas - Direction issued.Consequences of lllegal mining - Discussed - Mines andMinerals (Development and Regulation) Act. 1957 - s.21 (5).Illegal mining - Penalty/Compensation for - Discussed -Mines and Minerals (Development and Regulation) Act, 1957(MMDR) - s.21(5).Fore..vt (Conservation) Act, 1980 - s.2 - Violation of - Held:Since defauWng mining lease holders had paid additional NetPresent Value (NPV) as well as an amount towards penalcompensatory afforestation. it must be assumed that violation ofthe Act has been condoned to a limited extent - Environment. |
Judge | Hon'ble Mr. Justice Madan Bhimarao Lokur |
Neutral Citation | 2017 INSC 700 |
Petitioner | Common Cause |
Respondent | Union Of India And Ors. |
SCR | [2017] 13 S.C.R. 361 |
Judgement Date | 2017-08-02 |
Case Number | 114 |
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