REPORTABLE    

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

W  RIT PETITION (CIVIL  ) N  O  .   114 of 2014

Common Cause                             ….Petitioner  

versus

Union of India and Ors.                         …Respondents  WITH

                           WRIT PETITION (CIVIL) NO. 194 of 2014

Prafulla Samantra and Anr.                            ….Petitioners  

versus

Union of India and Ors.                         …Respondents  

J U D G M E N T    

Madan B. Lokur, J.

1. The  facts  revealed  during  the  hearing  of  these  writ  petitions  filed

under Article 32 of the Constitution suggest a mining scandal of enormous

proportions  and  one  involving  megabucks.  Lessees  in  the  districts  of

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 1 of 114

Keonjhar, Sundergarh and Mayurbhanj in Odisha have rapaciously mined

iron  ore  and  manganese  ore,  apparently  destroyed  the  environment  and

forests and perhaps caused untold misery to the tribals in the area. However,

to be fair to the lessees, they did the detail  steps taken to ameliorate the

hardships of the tribals, but it appears to us that their contribution is perhaps

not more than a drop in the ocean – also too little, too late.  

Facts leading up to the report of the Central Empowered Committee

2. Rabi Das, the editor of a daily newspaper called Ama Rajdhani filed

I.A.  No.  2746-2748  of  2009  in  a  pending  writ  petition  being  T.N.

Godavarman v. Union of India.1  He prayed, inter alia, for the following

directions from this Court:

 “ a)  Issue  a  direction  to  the  Central  Empowered  Committee  to conduct an exhaustive fact finding study of the illegal mining in Keonjhar, Sundargarh and other Districts of Orissa;

b) Direct  appointment  of  a  “Commission”  to  investigate  and study  the  modalities  of  the  illegal  machinations,  fix responsibility on individuals (in Government and outside it) and  recommend  remedial  measures  to  be  immediately implemented  by  the  Government  of  India  and  the Government of Orissa;

c) Direct  the  Respondents  to  take  effective  and  appropriate action  to  ensure  closure/stoppage  of  all  the  illegal  mining activities in the concerned areas and direct prosecution and punish all those found guilty of this illegal mining in violation of  the  Mines  and  Minerals  (Development  and  Regulation)

1 W.P. No. 202 of 1995

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Act, 1957, Forest (Conservation) Act, 1980 and other relevant laws.”

3. The applications were taken up for consideration on 6th November,

2009 when notice was issued to the Central  Empowered Committee (for

short ‘the CEC’) to file its report/response within six weeks. 4. On 26th April, 2010 the CEC submitted an interim report which was

noted by this Court and taken on record.  The report was of a general nature

but contained quite a few recommendations.  Some of the recommendations

presently relevant are as follows:   “(b) Even  otherwise  the  Rule  24-A(6),  MCR,  1960  does  not

authorize the lessee to operate a mine without the statutory clearances/approvals.  Therefore, in respect of a mine covered under the ‘deemed extension’ clause, the mining operations should be permitted to be undertaken in the non forest area of the mining lease only if (i) it has the requisite environmental clearance;  (ii)  it  has  the  consent  to  operate  from the  State Pollution Control Board under the Air and Water Acts; (iii) Mining Plan  is  duly  approved by  the  competent  authority; and  (iv)  the  NPV  for  the  entire  forest  falling  within  the mining lease is deposited in the Compensatory Afforestation Fund.

The mining in the forest  land included in the mining lease should be permissible only if, in addition to the above, the approval under the FC Act/TWP has been obtained;

(c) No forest land can be leased/assigned without first obtaining the approval  under  the  FC Act.   Therefore,  the  forest  area approved under the FC Act should not be lesser than the total forest area included in the mining leases approved under the MMDR Act, 1957.   Both necessarily have to be the same.  In view of the above, this Hon’ble Court while permitting grant of Temporary Working Permission to the mines in Orissa and Goa has made it one of the pre-conditions that the NPV will be  paid  for  the  entire  forest  area  included  in  the  mining

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leases.   Similarly,  all  the  mining  lease  holders  in  Orissa should be directed to pay the NPV for the entire forest area, included in the mining lease;

(d) In Orissa, substantial areas included in the mining leases as non forest  land have  subsequently  been identified  as  DLC forest  (deemed  forest/forest  like  areas)  by  the  Expert Committee constituted by the State Government pursuant to this  Hon’ble  Court’s  order  dated  12.12.1996.   While processing and/or approving the proposals under the FC Act in many cases such areas have been treated as non-forest land. It is recommended that (i) the NPV for the entire DLC area included in the mining lease, after deducting the NPV already paid, should be deposited by the concerned lease holder and (ii) the mining operations in the unbroken DLC land (virgin land) should be permissible only if the permission under the FC Act has been obtained/is obtained for such area.   Keeping in view the peculiar circumstances as was existing in Orissa and subject to the above, the mining operations in the broken DLC land may be allowed to be continued provided the other statutory  requirements  and  Rules  are  otherwise  being complied with.”

The report concluded by recording as follows:  

“ a) an attempt has been made for the first time by the CEC to comply and analyse the status of all the mining leases in a State  and  to  suggest  effective  and  remedial  measures  - something  made  possible  because  of  the  unstinted cooperation extended by the senior functionaries of the Forest and Mines Departments of the State Government; and

 b)     the above recommendations if accepted and implemented will, besides ensuring that mining is done in compliance with the statutory provisions, result in recovery of additional amount towards  the  NPV etc.  running  into  hundreds  of  crores  of rupees.  It would be appropriate that a part of this additional amount,  say  50%  is  used  through  a  SPV  for  undertaking specific tribal welfare and area development works so as to ensure  inclusive  growth  of  the  mineral  bearing  areas.  The CEC  proposes  to  file  detailed  schemes  in  this  regard  for seeking permission of this Hon’ble Court provided the State

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of Orissa as well as the MoEF endorse the course of action proposed above.”

The significance of the second conclusion will be discussed by us a little

later.

5. Notice was issued on the report returnable on 7th May, 2010.  On the

adjourned date, the following order was passed by this Court:

“The CEC has filed its Report.  The State would like to file its response.   Six  weeks  time  is  granted  for  the  same.   The recommendations of the CEC which are acceptable to the State Government can be complied with.”

It may be mentioned that some of the recommendations made by the CEC

have been accepted and implemented by the State of Odisha.

6. The issue of mining in Odisha again came up for consideration on 16th

September, 2013 and this Court passed the following order:  

“We call for a report from the Central Empowered Committee within a  period  of  six  weeks.  We direct  that  the  parties  of   the   State Government  of   Odisha   and   the   Central   Government   will cooperate with the Central Empowered Committee to  enquire  into the matter and furnish a report.

                     The matter be listed on a Monday after six weeks.”

7.      With reference to the order passed on 16th September, 2013 the CEC

conducted  an  inquiry  and some information was sought  from M/s  Sarda

Mines Private Limited (for short ‘SMPL’).  This was objected to by SMPL

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who  filed  an  application  which  was  taken  up  for  consideration  on  9th

December, 2013.  The following order was passed on that day:

“By  our  order  dated  16th September,  2013,  we  had  called  for  a Report from the Central Empowered Committee within a period of six  weeks.   It  is  stated  on  behalf  of  the  Central  Empowered Committee  that  the  Report  could  not  be  ready  as  part  of  the information  called  for  have  not  been  furnished  by  the  State Government.

Mr. Venugopal, learned senior counsel for the applicant M/s. Sarda Mines Private Limited in IA No.3721 submits that since some of the matters are pending before the High Court, a prayer has been made for  not  furnishing  the  required  information  to  the  Central Empowered Committee.

List this matter in the second week of January, 2014.

In the meantime, the Central Empowered Committee may not submit its final Report.”

8.      The matter was again taken up on 13th January, 2014 and this Court

passed the following order:

“We have heard learned counsel for the parties.          We have also perused the letter dated  17 th  October,  2013  of  the Member Secretary, Central Empowered Committee sent to the  Chief Secretary, Government of Odisha  along  with  its annexures  and  in particular,   the  Statement   of   Details   of   information   and documents   sought   by   Central  Empowered  Committee  for  the meeting convened on 30th October,  2013,  which cover forest and environmental issues.

We, accordingly, modify the  order  dated  9th  December,  2013  and direct the Central Empowered Committee to submit its final  report on  the queries made by the State Government with  regard  to  the details  of  the documents sought for in the letter dated 17 th October, 2013 within a  period of six weeks.

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The Report will not cover cases other than forest and environmental issues.

The lessees and others from whom information is sought for will cooperate  if  they  do  not  cooperate  the  Central  Empowered Committee will give its report.

A copy of the interim report of 26th April, 2010 will be furnished to the learned counsel appearing for the State of Odisha.

This matter be listed on 20th January, 2014 for consideration of the recommendations  made  by the  Central  Empowered Committee  in the said Report dated 26th April, 2010.”

    Thereafter and partly based on reports given by Justice M.B. Shah, a retired

judge of this Court, holding a commission under the Commissions of Inquiry

Act,  1952 a  writ  petition  being  W.P. (C)  No.  114 of  2014 was filed  by

Common Cause.  Several prayers were made in the writ petition, and some

of the more significant prayers read as follows:-

“(a)   Issue  a  writ  of  mandamus  or  any  other  appropriate  writ directing  the  Union  of  India  and  Government  of  Odisha  to immediately stop forthwith all illegal mining in the State of Odisha and to terminate all leases that are found to be involved in illegal mining  and  mining  in  violation  of  the  provisions  of  the  Forest Conservation Act 1980, the environment laws and other laws.

(b)    Issue  a  writ  of  mandamus  or  any  other  appropriate  writ directing  the  Union  of  India  and  Government  of  Odisha  to  take action against all the violators involved either directly or indirectly in illegal mining including those named in the report of Justice Shah Commission.  

(c)     Issue  a  writ  of  mandamus  or  any  other  appropriate  writ directing  a  thorough  investigation  by  an  SIT  or  CBI  under  the supervision of this Hon’ble Court, as is recommended by the Justice

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 7 of 114

Shah  Commission  into  illegal  mining  in  Odisha  and  collusion between  private  companies/individuals  and  public  officials  of  the State/Central Governments.

xxx                xxx                      xxx

(e)      Issue  a  writ  of  mandamus  or  any  other  appropriate  writ directing the respondents to recover the illegally accumulated wealth through illegal mining and related activity, as per Section 21(5) of the  MMDR  Act,  1957  [Mines  and  Minerals  (Development  and Regulation) Act, 1957] and launch prosecutions under Section 21(1) of the MMDR Act 1957, and direct that the money recovered would be used for the welfare of local communities, tribals and villagers.”

9.     The writ petition was taken up for consideration on 21st April, 2014

when the following order was passed:

“We have heard the preliminary objections with regard to the writ petition  and  we  are  not  convinced  that  the  writ  petition  is  not maintainable.  

Issue notice.

As the State of Odisha, Union of India and the CEC have already been served with the notices, no further notices be issued to them.

Notice,  however, be issued to respondent nos.  4 and 5 returnable within four weeks.

It appears from the averments in paragraph 14 of the writ petition that  several  lessees  are  operating  without  clearances  under  the Environment (Protection) Act, 1986 and the Forest (Conservation) Act,  1980,  and  without  renewal  by  the  Government.  Hence,  an interim order needs to be passed in respect of these lessees who are operating the leases in violation of the law.

For consideration of the interim order that should be passed, only this writ petition be listed next Monday, the 28th of April, 2014, as first  item. It  will  be open for all  parties and intervenors/proposed intervenors to file their respective affidavits.  

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CEC, in the meanwhile, will make out a list of such lessees who are operating the leases in violation of the law. This list be prepared by the CEC without reference to the Shah Commission’s Report.  

Liberty is given to the parties to produce their papers before CEC. The State of Odisha and the Union of India will cooperate with CEC to prepare the list.”

Report of the Central Empowered Committee        

10. The  CEC  gave  its  final  report  on  25th April,  2014  which  was

considered by this Court and a detailed interim order was passed on 16 th

May, 2014.2  The sum and substance of the final report dated 25th April, 2014

and the interim order is that in the districts of Odisha that we are concerned

with, namely, Keonjhar, Sundergarh and Mayurbhanj, the total number of

leases granted for mining iron and manganese ore are 187. Of these, 102

lease  holders  did  not  have  requisite  environmental  clearance  (under  the

Environment  (Protection)  Act,  1986)  or  approval  under  the  Forest

(Conservation)  Act,  1980  or  approved  mining  plan  and/or  Consent  to

Operate  under  the  provisions  of  the  Air  (Prevention  and  Control  of

Pollution) Act, 1981 or the Water (Prevention and Control of Pollution) Act,

1981.  This Court directed that mining operations in these 102 mining leases

shall remain suspended but it will be open to such lease holders to move the

concerned authorities for necessary clearances,  approvals or  consents and

“as  and  when  the  mining  lessees  are  able  to  obtain  all  the 2 Common Cause v. Union of India & Ors. (2014) 14 SCC 155

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 9 of 114

clearances/approvals/consent they may move this Court for modification of

this interim order in relation to their cases.”   

11.    This  Court  also  found  that  29  out  of  187 mining leases  had been

determined or rejected or had lapsed.  It was directed that mining operations

in these 29 mining leases will also remain suspended but it would be open to

all these concerned lessees to move the authorities for necessary relief and as

and when they get the appropriate relief,  they could move this Court for

modification of the interim order.   

12.   This Court also found that 53 iron ore/manganese ore mining leases

were operational  and that  they had necessary  approvals  under  the Forest

(Conservation) Act,  1980, consent to operate granted by the Odisha State

Pollution  Control  Board  and  also  approved  mining  plans.  (There  is  no

specific mention about environmental clearance). In addition 3 mining leases

were located in forest as well as non-forest land, but mining operations were

being conducted in non-forest areas of the mining lease as the lease holders

did  not  have  approvals  under  the  Forest  (Conservation)  Act,  1980.

Therefore a total of 56 iron ore/manganese ore mining leases were operating

in the State of Odisha.

13.    As far as the break-up of the 56 operational mining leases is concerned,

it was found that 14 mining leases were operating on first renewal basis in

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accordance with the deeming provisions of Section 8(2) of the Mines and

Minerals (Development and Regulation) Act, 1957 (for short ‘the MMDR

Act’) read with Rule 24-A(6) of the Mineral Concession Rules, 1960 (for

short ‘the MCR’) and 16 mining leases were operating since lease deeds for

grant of renewal had been executed in their favour. The remaining 26 mining

leases  were  operating  on  second  and  subsequent  renewal  basis  with  the

renewal applications pending a final decision with the State Government.  

14.    In respect of the 14 first renewal mining leases, this Court permitted

them to continue their operations for the time being in view of the deemed

renewal provisions.  This Court also permitted 16 mining leases to continue

to operate since they had lease deeds executed in their favour. With regard to

the remaining 26 mining leases operating on second and subsequent renewal

applications, this Court drew attention to the decision rendered on 21st April,

2014 in  Goa Foundation v. Union of India3 wherein it was held that the

provision for a second or subsequent deemed renewal was not available in

view of  Section  8(3)  of  the  MMDR Act.   Consequently, these  26  lease

holders were restrained from operating until express orders were passed by

the State Government under Section 8(3) of the MMDR Act. Six months

time was granted to the State Government to take a final decision on the  

3 (2014) 6 SCC 590

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 11 of 114

renewal applications. This Court left it open to the mining lease holders to

apply  for  modification  of  the  interim  order  dated  16th May,  2014  on

obtaining necessary clearances.  

15.     During the  hearing of  these  petitions,  we were  informed that  the

balance 26 mining leases are now operational in view of the amendment to

Section  8(3)  of  the  MMDR  Act  with  effect  from  12th January,  2015.

However,  we  are  not  aware  whether  these  26  mining  leases  have  the

necessary statutory clearances.  

16.    We may also mention that pursuant to the liberty granted to move for

modification of the interim order of 16th May, 2014 we have received 17

interim applications for modification. Through a chart handed over to us in

Court on 3rd May, 2017 we have been informed that in respect of two of the

17 applications, that is,  Zenith Mining (I.A. No. 45) and Kavita Agrawal

(I.A. No. 47), the lease has not been extended or has been determined and

they do not  have  any  Environmental  Clearance  or  Forest  Clearance.   In

respect of J.N. Pattnaik (I.A. No. 66), there is no Forest Clearance available.

We were also informed that S.A. Karim (I.A. No.9) actually had a working

lease and had wrongly been included as a non-operational lease.   

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17.    Be that  as it  may, learned counsel  for  the lease holders drew our

attention to the record of proceedings of 16th May, 2014 and particularly the

following paragraph appearing therein:

“We have  passed  interim order  in  a  separate  sheet.   The  Central Empowered Committee will give a final report on the Writ Petition by the end of July, 2014 and the matter will  be listed in the first week of August, 2014 before the Green Bench.”

We are mentioning this in the context of the order passed on 13 th January,

2014 adverted to above to the effect that “The Report will not cover cases

other than forest and environmental issues.”

18.    In its final report, the CEC has dealt with the following ten topics:

In this final report dated the CEC dealt with the following ten topics:-

“I. Production of iron ore and manganese ore without/in excess of  the  environmental  clearance/Mining  Plan/Consent  to Operate.

II. Mining  leases  operated  in  violation  of  the  Forest (Conservation) Act, 1980.

III. Illegal mining outside the sanctioned mining lease areas.

IV. Mining  leases  acquired  in  violation  of  Section  6  of  the MMDR Act, 1957.

V. Violation of Rule 37 of the Mineral Concession Rules, 1960 by the lessees.

VI. Illegalities involved in the mining leases of Essel Mining & Industries Ltd.

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 13 of 114

VII. Illegalities involved in the mining lease of Sharda Mines (P) Ltd.

VIII. Massive illegal mining in Uliburu Forest land.

IX. Inordinate delays in taking decisions by the State Government regarding renewal of the mining leases.

X. Other issues.”

19.    By an order dated 16th January, 2015 objections to the final report were

permitted and we have since received quite a few objections.   When the

matter was taken up for consideration by this Court on 7th October, 2015 and

pursuant  to  the  order  passed  on  that  date,  the  learned  Amicus filed  a

statement dated 30th October, 2015 in a tabular form dealing with each I.A.

filed in respect  of the observations and recommendations made by CEC.

Thereafter, when the matter was again taken up for consideration the learned

Amicus filed a note dated 15th March, 2016 wherein the following four issues

were flagged:-

“(i) Leases lapsed under Section 4A(4) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as MMDR Act, 1957) (11 leases);

(ii) Violation of Rule 24 of the Minerals (other than Atomic and Hydrocarbons  Energy  Minerals)  Concession  Rules,  2016 (hereinafter referred to as MCR, 2016) and Rule 37 of the Mineral Concessions Rules, 1960 (hereinafter referred to as MCR, 1960) (9 leases);

(iii) Illegal mining in forest lands (20 leases); and

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(iv) Iron  ore  produced  without/in  excess  of  the  environmental clearance (each of the operating leases involved).”

20.    Insofar as the first issue is concerned, it is common ground that that

issue has been fully, conclusively and exhaustively dealt with by this Court

by a judgment and order dated 4th April, 2016 (Common Cause v. Union of

India).4  Therefore, the first issue does not survive for consideration by us.

21.    As far as the remaining three issues are concerned, these overlap with

topics I, II and V dealt with by the CEC. Detailed submissions were made

before us by learned counsel for all the appearing parties on these issues as

well  as  by  the  learned  Amicus and  the  learned  Attorney  General.   We

propose to deal with them in this judgment and order.

22.    We may mention that submissions were also made on topics III and IV

identified by the CEC, that is, illegal mining outside the sanctioned mining

lease  areas  and  mining  leases  acquired  in  violation  of  Section  6  of  the

MMDR Act.  We will consider these issues as well.

23.    As far as topics VI and VII identified by the CEC are concerned, we

would like to hear the parties in detail in respect of these issues.   

24.    No challenges or submissions were made on topics VIII, IX and X and

therefore we accept the report of the CEC on these topics.  

4 (2016) 11 SCC 455

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25.   At  this  stage,  we  may  mention  some  rather  frightening  figures

mentioned by the CEC in its  final  report.  According to the CEC, excess

mining without environmental clearance or beyond what was authorized by

the environmental clearance is 2130.988 lakh MT of iron ore and 24.129

lakh MT of manganese ore making a total of  2155.117 lakh MT of iron and

manganese  ore.   This  does  not  include  extraction  of  ore  without  forest

clearance. These figures give an indication of the extent of excess or illegal

or unlawful mining carried out.

26.    In terms of rupees, according to the CEC the total notional value of

minerals produced without an environmental clearance or in excess of the

environmental  clearance,  at  the  weighted  average  price  of  minerals  as

proposed by the Indian Bureau of Mines comes to about Rs.17091.24 crores

for iron ore and about Rs.484.92 crores for manganese ore making a total of

Rs.17,576.16 crores.   Again,  this  does not  include mining without  forest

clearance. It is for this reason that we have referred to the megabucks and

rapacious mining.    

Justice M.B. Shah Commission of Inquiry

27.     Apparently,  and  it  appears  quite  independently  of  all  these

developments,  the  Central  Government  issued  a  notification  on  22nd

November, 2010 under the Commissions of Inquiry Act, 1952 whereby it

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appointed Justice M.B. Shah, a retired judge of this Court  to conduct an

inquiry on the following Terms of Reference:

“2. (i) to inquire into and determine the nature and extent of mining and  trade  and  transportation,  done  illegally  or  without  lawful authority, of iron ore and manganese ore, and the losses therefrom; and to identify, as far as possible, the persons, firms, companies and others that are engaged in such mining, trade and transportation of iron  ore  and  manganese  ore,  done  illegally  or  without  lawful authority;

(ii)  to  inquire  into  and  determine  the  extent  to  which  the management, regulatory and monitoring systems have failed to deter, prevent,  detect  and  punish  offences  relating  to  mining,  storage, transportation, trade and export of such ore, done illegally or without lawful authority, and the persons responsible for the same;

(iii)  to  inquire  into  the  tampering  of  official  records,  including records relating to land and boundaries, to facilitate illegal mining and  identify,  as  far  as  possible,  the  person  responsible  for  such tampering; and

(iv)  to  inquire  into  the  overall  impact  of  such  mining,  trade, transportation and export, done illegally or without lawful authority, in terms of destruction of forest wealth, damage to the environment, prejudice to the livelihood and other rights of tribal people, forest dwellers  and  other  persons  in  the  mined  areas,  and  the  financial losses caused to the Central and State Governments.

3.   The Commission  shall  also recommend remedial  measures  to prevent such mining, trade, transportation and export done illegally or without lawful authority.”

28.    In the preamble to the notification appointing the Commission, it was

noted that there were reports that mining, raising, transportation and export

of  iron ore  and manganese  ore illegally  or  without  lawful  authority  was

being carried on in various States in one or more of the following forms: W.P. (C) Nos. 114/2014 etc.                                                                                            Page 17 of 114

“(a) mining without a licence;

(b) mining outside the lease area;

(c) undertaking mining in a lease area without taking  approval of the concerned State Government for transfer of concession;

b raising of minerals without lawful authority;

c raising of minerals without paying royalty in  accordance with the quantities and grade;

d mining in contravention of a mining plan;

e transportation of raised mineral without lawful authority;  

f mining and transportation of raised mineral in contravention of applicable Central and State Acts and rules thereunder;

g conducting of multiple trade transactions to obfuscate the origin and source of minerals in order to facilitate their disposal;

h tampering  with  land  records  and  obliteration  of  inter-state boundaries with a view to conceal mining outside lease areas;

i forging or misusing valid transportation permits and using forged transport permits and other documents to raise, transport, trade and export minerals;”

It is in the above context that the Terms of Reference were framed.

29    On 1st July, 2013 the Commission gave the First  Report  on Illegal

Mining of Iron and Manganese Ores in the State  of Odisha.   The report

contains an executive summary and very briefly the Commission stated that:

(i)  All  modes  of  illegal  mining,  as  stated  in  the  notification  dated  22nd

November,  2010 of  the  Central  Government  are  being committed  in  the

State of Odisha; (ii) There is a complete disregard and contempt for law and W.P. (C) Nos. 114/2014 etc.                                                                                            Page 18 of 114

lawful  authorities  on  the  part  of  many  of  the  emerging  breed  of

entrepreneurs; (iii) It appears that the law has been made helpless because of

its systematic non implementation.  The executive summary states that the

following are discussed in the report:

“(A)  Information  regarding  mining  leases  should  be  placed  on website to make mining operations more transparent and to display the information  for  each lease  on the  departmental/State  website with various conditions which are required to be adhered by the lessee.

(B) Misuse of Rule 24-A(6) of MCR, 1960 [Mineral Concession Rules,  1960]  which  provides  for  deemed  extension  of  lease. Application for renewal of mining lease is not decided for one or other pretexts, may be, there is lack of co-ordination among various departments  which  are  required  to  decide  renewal  application. There is gross misuse of deemed refusal and deemed extension of both  the  provisions  of  renewal  of  leases  (before  27.09.1994 and after) under Rule 24-A of MCR, 1960.  This casual and negative approach  has  caused  dearly  to  State  exchequer  in  the  form  of hundred crores of stamp duty and others. - - - - - - - - - - - - -  (C) Violation of the provisions of the Forest  (Conservation) Act, 1980,  Rules  &  guidelines  and  directions  issued  by  the  Hon’ble Supreme Court of India. - - - - - - - - - - - - -  

(D) Violation of the provisions of the Environment (Protection) Act, 1986. - - - - - - - - - - - - -  

(E)   Misuse  of  Rules:  10  &  12  of  MCDR,  1988  [Mineral Conservation  and Development  Rules,  1988]  which  provides  for modification and review of mining plan only for a specific purpose, namely,

(i) Safe and scientific mining; (ii) conservation of minerals; (iii) the protection of environment; and (iv) in case of modification, explanation for the same.

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 19 of 114

- - - - - - - - - - - - -

(F)     Encroachment:- On the basis of Google Image, the survey report prepared by the State Government by DGPS method, it was found that in 82 mining leases, there was encroachment.  Out of the said leases, re-survey was ordered for 37 leases.”

30.       Soon thereafter, the Commission gave its Second Report on Illegal

Mining of Iron and Manganese Ores in the State of Odisha, sometime in

October, 2013. This report dealt with specific lease holders and violations

committed by them.  It is not necessary for us to delve into those specific

details.

31.    It was submitted before us by learned counsel for the mining lease

holders that the reports given by the Commission were not acceptable on the

ground that a notice had not been given to the lease holders under Section

8B or Section 8C of the Commissions of Inquiry Act, 1952. It was submitted

that under these circumstances the reports given by the Commission were

vitiated and therefore the foundation of the writ petition filed by Common

Cause was taken away.  We are not in agreement with learned counsel for

the mining lease holders.   

32.     The  first  report  given by  the  Commission  was  a  general,  overall

perspective on the subject while the second report went into specific details

of  several  mining  lease  holders  -  but  we  are  not  concerned  with  those

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 20 of 114

specifics.  Therefore, whether notices were or were not issued to the lease

holders who were the subject matter of discussion in the second report is of

no consequence.

33.     What  we  are  really  perturbed  about  is  the  facts  stated  by  the

Commission in the first report.  So far as this is concerned, we are of the

view that no irregularity or illegality has been committed so as to vitiate the

first report. Notwithstanding this, we are not relying upon any of the facts

determined by the Commission for the purposes of our judgment and order.

34.    The procedure followed by the Commission has been mentioned in

Volume I Part II of the first report, but it is not necessary for us to recount

each  and  every  detail.  Suffice  it  to  say  that  a  resume  of  the  procedure

followed will indicate that full opportunity was given to the lease holders to

have their say.

Resume of the procedure followed by the Commission

35.    In March 2011 the Commission sent  the first  questionnaire to the

concerned Secretary  of  the Government  of  Odisha seeking the following

information regarding each lease holder:-

   “(i) the name of the lessee;   (ii) area of the lease;   (iii) date of the execution of the lease deed;   (iv) present status (renewal, mining plan, mining scheme)

approval date;

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 21 of 114

 (v) production  and  export  particulars  from  the  year 2008-09 up to January, 2011; etc.”

36.    On 20th April, 2011 the Commission sent the second questionnaire to

the  said  concerned  Secretary  seeking  further  information  in  a  Form

consisting of 14 questions and 4 tables.

37.    Thereafter, between 24th and 26th August, 2011 the Commission issued

the first notice to various mining lessees in Odisha seeking information on

affidavit as per Proforma A and B enclosed with the notice.  In Proforma A

the lease holder was asked to submit details which included the details of

environment clearance, forest clearance and renewal of lease and whether

the leased mine was in operation or not.  In Proforma B the lease holder was

asked  to  submit  details  which  included  the  details  of  dispatch,  domestic

consumption and export in million tonnes of iron ore and manganese ore

from 2006-07 to 2010-11.

38.     The  Commission  visited  Odisha  from 7th December,  2011 to  14th

December, 2011, from 3rd October, 2012 to 11th October, 2012 and from  31st

October, 2010 to 8th November, 2012.   The purpose of  the visits  was to

collect  information  and  seek  explanations  and  gather  facts  from  the

concerned Departments of the Government of India and the Government of

Odisha.  During  the  visits,  the  Commission  received  as  many  as  140

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 22 of 114

complaints alleging illegal mining.  Accordingly, a public hearing was held

in Keonjhar and Bhubaneshwar on 11th and 12th December, 2011.

39.    On 21st December, 2012 and 12th January, 2013 several senior counsel

were  given  a  personal  hearing  by  the  Commission  including  a  personal

hearing to  the Federation of  Indian Mining Industries  (for  short  ‘FIMI’).

Following  the  submissions  made,  a  fresh  notice  was  issued  to  the  lease

holders from 28th January, 2013 seeking information in Proformas A to H.  In

terms of the fresh notice, the lease holder was required to verify the facts

stated  therein  (which  were  collected  by  the  Commission)  and  if  found

incorrect  then  to  state  the  correct  facts.   The  fresh  notice  specifically

mentioned that:

“(i) The lessee shall come fully prepared to answer, related to this matter and submit all related records.

   (ii) Explain the production from the leased area without having approval under F(C) Act, 1980.

  (iii)     Explain the production during the deemed extension period without  having  approval  under  EIA  Notification  dated 27.01.1994 and amendments thereon.

  (iv)  Explain the excess production in violation of EIA Notification dated 27.01.1994 and amendments thereon under the EP Act, 1986.”

40.    The report mentions the various dates of hearing given to learned

counsel for the lease holders, the State of Odisha, FIMI, Federation of Indian

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 23 of 114

Chambers  of  Commerce  and  Industry  (FICCI)  and  the  Ministry  of

Environment  and Forest  of  the  Government  of  India  (for  short  ‘MoEF’)

which are as follows:

HEARING NO.

DATE PLACE

1. 21.12.2012 Office of the Commission, Ahmedabad. 2. 12.01.2013 -do- 3. 18.02.2013 -do- 4. 27.02.2013 Circuit House, Bhubaneshwar (Odisha). 5. 28.02.2013 -do- 6. 01.03.2013 -do- 7. 02.03.2013 -do- 8. 04.03.2013 -do- 9. 16.03.2013 Circuit House, Annexe, Ahmedabad. 10. 20.03.2013 -do- 11. 23.03.2013 Office of the Commission, Ahmedabad. 12. 02.04.2013 Circuit House, Annexe, Ahmedabad. 13. 03.04.2013 -do- 14. 04.04.2013 -do- 15. 12.04.2013 Office of the Commission, Ahmedabad. 16. 13.04.2013 -do- 17. 21.04.2013 Gujarat University Convention Centre,

Nr. Helmet  Cross  Road,   132 ft.  Ring Road, Ahmedabad.

18. 24.05.2013 Office of the Commission, Ahmedabad. 19. 25.05.2013 -do-

41.    The number of learned counsel and representatives who were heard by

the Commission and with whom interactions took place are mentioned in

Annexure A to Volume I of the first report.  The list of learned counsel runs

into 18 pages - from page 33 to page 50 of Volume I of the first  report.

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 24 of 114

Some individual lawyers appeared for several lease holders but the fact of

the matter is that everybody who wanted to be heard was given a hearing.

42.    The function of the Commission as stated in the first report, at the

present stage, is best described in the words of the Commission itself.  It is

stated as follows:-

“The function of the Commission, at this stage, is only to inquire, assess the data collected and to submit the report on the said basis. On  that  basis,  some  remedial  measures  are  suggested  by  the Commission for controlling illegal mining and violation of the Acts and/or Rules.  For that, there is no question of issuing notices to the lessees.

For collecting the data and assessing it,  the Principles of Natural Justice are fully complied with, as stated above.  On the basis of the data  submitted  by  the  lessees  and the  submissions  made  by  Ld. Counsel for them, the report is submitted.”

 It is further clarified on page 198 of Volume I of the first report that with

regard  to  individual  mining  leases  in  which  there  is  a  violation  of  the

provisions  of  the  Forest  (Conservation)  Act,  1980  and/or  conditions  of

environmental clearance etc. a report would be submitted later on.   

43.     It  is  therefore abundantly  clear  that  the first  report  is  generally  a

limited  fact  finding  enquiry  on  the  basis  of  information  supplied  by  the

mining lease holders. Therefore, there is absolutely no question of any notice

being issued to any mining lease holder under Section 8B or the right of

cross examination being granted to any mining lease holder under Section

8C of  the  Commissions  of  Inquiry  Act,  1952.   We are  satisfied  that  the W.P. (C) Nos. 114/2014 etc.                                                                                            Page 25 of 114

Commission made adequate efforts to collect the facts and this collation in

the first report was possible with the assistance of the mining lease holders

and  their  learned  counsel  and representatives  as  well  as  the  government

authorities and FIMI and FICCI. Under these circumstances, no lease holder

can  seriously  contend  that  the  procedure  adopted  by  the  Commission  in

collecting  facts  was  either  irregular  or  not  in  accordance  with  law.  As

mentioned above,  any mining lease  holder  who wanted to  be heard was

given  an  opportunity  of  being  heard  and  was  fully  aware  of  what  the

Commission was attempting to achieve and if any particular mining lease

holder chose not to associate with it, it was at his or her own peril.  Lack of

knowledge of the proceedings before the Commission cannot be appreciated

and we are quite satisfied that all the mining lease holders were fully aware

of what was going on, if not personally then certainly through their list of

learned counsel running into 18 pages or their representatives individually or

their Federation.

44.    In Goa Foundation there was a challenge to the report of the Justice

Shah Commission in respect  of its  conclusions pertaining to the State  of

Goa.   This  was  dealt  with  by  this  Court  in  paragraphs  11 to  14  of  its

decision.  This Court declined to quash the report in view of the statement

made by the learned Advocate General of Goa.  But,  this Court took the

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 26 of 114

view that: “we will, however, examine the legal and environmental issues

raised in the Report of Justice Shah Commission and on the basis of our

findings on these issues consider granting the reliefs prayed for in the writ

petition  filed  by  Goa  Foundation  and  the  reliefs  prayed  for  in  the  writ

petitions filed by the mining lessees,  which have been transferred to this

Court.”

45.    In the present petitions before us, there is no challenge to the reports of

the  Justice  Shah  Commission.   However,  we  propose  (as  in  Goa

Foundation) to confine ourselves to some limited facts adverted to by the

CEC in its final report.  We do not propose to base any of our conclusions on

the reports of the Commission.

46.    Learned counsel for the petitioners insisted that the illegal or unlawful

mining  activity  carried  on  in  the  State  of  Odisha  as  noted  by  the

Commission  deserves  to  be  investigated  by  the  Central  Bureau  of

Investigation.  Reference in this regard was made to the passage in Part III of

Volume I of the first report of the Commission to the following effect:-

“Since this is one of the biggest illegal mining ever observed by the Commission, it is strongly felt that this is a fit case to handover to Central Bureau of Investigation, for further investigation and follow up action.”

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 27 of 114

47.    Similarly, on page 125 of Chapter II of Volume I of the report, it is

stated as follows:-

“Terms of Reference No. 8 provides that “The Commission may take the services of any investigating agency of the Central Government in order to effectively address its terms of reference.

The  Commission,  therefore,  suggests  that  Central  Bureau  of Investigation (C.B.I.) may be directed to investigate into allegations of corruption made against politicians, bureaucrats and others.”

We will consider this at the appropriate stage. Suffice it to say for the time

being that the Commission made certain significant observations in Chapter

II of the report to the effect that:

a That the tribals in the area have been displaced or stay in pathetic and  miserable  conditions  in  same  area.   There  is  rampant  air pollution with the trees having the colour of minerals making it clear that  tribals  are  forced  to  breathe  polluted  air  and  drink  polluted water.

b Streams and ground water is polluted and there is hardly any facility of drinking water.  Women have been seen fetching water from dirty nalas.

c Mining companies and beneficiation plants are drawing water from rivers and nearby water resources are getting depleted at a fast rate. The river Baitrani has been seriously affected by this activity.

d Basic  facilities  such  as  medical  facilities,  shelter/residence, education facilities are absent.  Roads have a heavy flow of traffic and on one road of the area about 7000 trucks passed during night time.

e The labour is not being paid adequate wages beyond the minimum wages even though the income of the mine owners runs into billions of rupees.

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 28 of 114

48.    Adverting to corruption in the area due to illegal mining activities, the

Commission felt that the Vigilance Commission was unlikely to conduct an

impartial and independent enquiry for arriving at just and proper findings

because of external pressures.  Accordingly, it would be more appropriate if

the Central Bureau of Investigation (CBI) conducts a detailed enquiry into

all cases that have been registered between 2008 and 2011.  It was also noted

that  the  railways  have  issued  demand  notices  to  the  extent  of  Rs.1,874

crores.  The latest position with regard to these notices is not available. 49. It was also noted that notices have been issued in 146 cases to various

lease holders for recovery of mined ore as per Section 21(5) of the MMDR

Act.  In the Koira circle notices have been issued to 55 lessees for more than

Rs. 13,000 crores; in Joda circle notices have been issued to 72 lessees for

recovery of more than Rs. 44,000 crores; in Keonjhar circle notices have

been issued to 4 lessees for recovery of about Rs. 1,065 crores; in Koraput

circle notices have been issued to three  lessees  for the recovery of about

Rs. 44 lakhs; and in Bolangir circle notice has been issued to 1 lessee for the

recovery  of  about  Rs.29.5  crores.   In  Baripada  circle  notices  have  been

issued to 11 lessees for  recovery of  more than Rs.  467 crores.   In other

words notices have been issued to the lessees for recovery of more than Rs.

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 29 of 114

59,000  crores!  (According  to  the  CEC  the  figure  exceeds  Rs.  61,000

crores)!! 50. We have adverted to the reports of the Commission, without relying

on them, only to highlight the gravity of the situation and nothing more. The

gravity of the situation is also apparent from the report of the CEC and the

Commission seems to support it.  

Initial contention

51.     The  initial  contention  urged  on  behalf  of  the  respondents  -  lease

holders was that in giving the report dated 16th October, 2014 the CEC has

exceeded its remit.  In this context, reference was made to the order of 13 th

January, 2014 in which it is stated that “The Report will  not cover cases

other than forest and environmental issues.”

52.         We are of opinion that this objection deserves immediate rejection.

The  subsequent  orders  passed  by  this  Court  have  been  completely

overlooked  by  learned  counsel  inasmuch  on  21st April,  2014  it  was

specifically noted by this Court that “CEC, in the meanwhile, will make out

a list of such lessees who are operating the leases in violation of the law.”

Similarly, in the record of proceedings of 16th May, 2014 it was noted that

“The Central Empowered Committee will  give a final report on the Writ

Petition by the end of July, 2014………”

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 30 of 114

53.        From a reading of the orders and the proceedings that have

been held in this regard from time to time, it is quite obvious to us that the

jurisdiction  of  the  CEC  was  not  limited  and  it  was  expected  to  give  a

detailed report on all aspects of illegal mining or mining being carried out

without  any  lawful  authority  in  whatever  manner.   The  initial  objection

raised on behalf of the lease holders is therefore rejected.

Central Empowered Committee

54. The Central Empowered Committee or the CEC was first constituted

by this Court by an order dated 9th May, 2002 (T.N.Godavarman v. Union of

India)5 as an interim body.  Thereafter, it was constituted by a notification

dated 17th September, 2002 issued under Section 3(3) of the Environment

(Protection) Act, 1986 (for short ‘the EPA’).  It has continued functioning

and assisting this Court for more than a decade and even though it has been

criticized on a couple of occasions,  it  is  now an established body which

renders extremely valuable advice to this Court and provides factual material

on the basis of which this Court can make some recommendations and pass

appropriate orders.6

5 (2013) 8 SCC 198

6 T.N. Godavarman v. Union of India, (2013) 8 SCC 198 and (2013) 8 SCC 204

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 31 of 114

55.    The details of the functioning of the CEC have been discussed by this

Court  in  Samaj  Parivartana Samudaya v. State  of  Karnataka.7  In  that

decision, questions were raised about the credibility of the CEC and while

rejecting the submissions, it was made clear that the recommendations made

by  the  CEC are  subject  to  the  satisfaction  of  this  Court.   We need  say

nothing  more  except  that  during  the  course  of  hearing  of  the  present

petitions, some of the conclusions arrived at by the CEC were disputed by

the petitioners and even by the learned Amicus and some were supported by

learned counsel for the mining lease holders, the learned Attorney General

and the learned counsel for the State of Odisha.  It is therefore quite clear

that  in the present  cases,  the CEC as a fact  finding body has functioned

impartially and it is only on the conclusions arrived at by the CEC on the

basis of the facts gathered that  there can be some debate and discussion.

Anyone may disagree with the views of the CEC and there is no need to

make heavy weather about this at all.

56.    In so far as the report given by the CEC on 16 th October, 2014 (the

final  report)  is  concerned,  before  going into the  details  thereof,  we may

mention  that  the  CEC  has  stated  that  it  held  meetings  with  the  Chief

Secretary and other senior officials of the State of Odisha and others on six

7 (2013) 8 SCC 154

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 32 of 114

dates.  It also heard the lease holders and others on seven dates and it held

meetings with three of the lease holders that is Jindal Steel and Power Ltd.

(JSPL), Sarda Mines Pvt. Limited (SMPL) and Essel Mining and Industries

Ltd. (Essel) on 10th September, 2014.  The CEC visited the site of the mining

lease of SMPL from 4th March, 2014 to 7th March, 2014 and had site visits of

a number of other lessees from 12th July, 2014 to 16th July, 2014.

57.    As far as the facts collected by the CEC are concerned, there is no

dispute with regard to their correctness.  The CEC has recorded that there

are 187 iron ore and manganese ore mining leases in the State of Odisha.

On the  basis  of  the  material  and  information  collected,  a  statement  was

prepared showing lease-wise and year-wise details of production of iron ore

and  manganese  ore,  permissible  production  and  production  without

environmental  clearance/beyond  environmental  clearance.   The  details  in

this regard have been given as Annexure R-14 to the final report.

58.    Regarding the correctness of the information, the CEC has this to say:

“24. A copy of the above said statement prepared by the CEC was made available, through the Director, Mines and Geology, Government of Odisha and also through the Federation of Indian Mining Industries (FIMI), to the lessees of each of the mining leases to enable them to verify  the  production  and  other  details  as  given  in  the  statement. During the hearings held before the CEC between 5th August and 12th August,  2014 and also in the representations filed before the CEC a large number of lessees stated that the yearwise production details are not correctly reflected in the statement.  Some of them also stated that

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the  environment  clearance  details  are  not  properly  reflected  in  the statement.  Therefore, it was decided that (a) the State Government will reconcile the annual production and other details  with the respective lessees and (b) the copies of the environmental clearances may also be filed  before  the  CEC  by  those  lessees  who  are  disputing  the environmental clearances details provided by the State.  Accordingly a meeting was convened by the Director, Mines & Geology (DMG) with the  lessees  on  14th August,  2014  and  during  which  the  annual production and other details were reconciled.  The reconciled leasewise and yearwise production and other details provided to the CEC by the State of Odisha may be seen in the statement enclosed at  Annexure - R-11 to this Report.  The figures modified in the said statement, after reconciliations, are shown in bold print.”

59. The  CEC  noted  that  the  Director,  Mines  and  Geology  of  the

Government of Odisha had informed the CEC that each lease holder with the

exception of SMPL and JSPL agreed with the reconciled production details.

On facts, therefore, there is no dispute with regard to the contents of the

report of the CEC, although the conclusions might be disputed. Separately,

the CEC has dealt with the facts concerning SMPL and JSPL pursuant to a

meeting held with them on 11th September, 2014.

Statutory provisions

60.    The grant of a mining lease is governed by the provisions of the Mines

and Minerals (Development and Regulation) Act, 1957 (or the MMDR Act),

the  Mineral  Concession  Rules,  1960  (or  the  MCR)  and  the  Mineral

Conservation and Development Rules, 1988 (or the MCDR).

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61.    Section 4(1) of the MMDR Act provides that no person shall undertake

any mining operation in any area except under and in accordance with the

terms and conditions of a mining lease granted under the MMDR Act and

the rules made thereunder.  A mining operation is defined in Section 3(d) of

the MMDR Act as meaning any operation undertaken for  the purpose of

winning any mineral.   Section  4(2)  of  the  MMDR Act  provides  that  no

mining  lease  shall  be  granted  otherwise  than  in  accordance  with  the

provisions of the said Act and the rules made thereunder.

62.    Section 5(2) of the MMDR Act provides for certain restrictions on the

grant of a mining lease.  It  provides that the State Government shall  not

grant a mining lease unless it is satisfied that the applicant has a mining plan

duly  approved  by  the  Central  Government  or  the  State  Government  in

respect of the concerned mine and for the development of mineral deposits

in the area concerned.

63.    Section 10 of the MMDR act provides for the procedure for obtaining a

mining  lease  and  sub-section  (1)  thereof  provides  that  an  application  is

required to be made for a mining lease in respect of any land in which the

mineral vests in the government and the application shall  be made to the

State Government in the prescribed form and along with the prescribed fee.

64.     Section  12  of  the  MMDR Act  requires  the  State  Government  to

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maintain a set of registers.  Among the registers that the State Government is

required to maintain are a register of applications for mining leases and a

register of mining leases.  Every such register shall be open to inspection by

any person on payment of such fee as the State Government may fix.

65.    Section 13 of the MMDR Act provides for the rule making power of

the Central Government in respect of minerals.   The MCR are framed in

exercise of power conferred by Section 13 of the MMDR Act.

66.     Section  18  of  the  MMDR Act  makes  it  the  duty  of  the  Central

Government to take all such steps as may be necessary for the conservation

and systematic development of minerals in India and for the protection of

the environment by preventing or controlling any pollution which may be

caused by mining operations.  The MCDR are framed in exercise of power

conferred by Section 18 of the MMDR Act.   

67.    The distinction between the MCR and the MCDR is that the MCR

deal, inter alia¸ with the grant of a mining lease and not commencement of

mining  operations.   However,  the  MCDR  deal,  inter  alia¸  with  the

commencement of mining operations and protection of the environment by

preventing  and  controlling  pollution  which  might  be  caused  by  mining

operations.

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68.    Section 21 of the MMDR Act deals with penalties and sub-section (1)

thereof provides that whoever contravenes the provisions of sub-section (1)

or sub-section (1A) of Section 4 shall be punished with imprisonment for a

term which may extend to two years or with fine which may extend to Rs.

25,000  or  with  both.   Sub-section  (5)  of  Section  21 of  the  MMDR Act

provides that whenever any person raises without any lawful authority, any

mineral from any land, the State Government may recover from such person

the minerals so raised or where such mineral has been disposed of the price

thereof.  In addition thereto the State Government may also recover from

such person rent, royalty or tax, as the case may be for the period during

which the land was occupied by such person without any lawful authority.  

Mineral Concession Rules, 1960

69.    As far as the MCR are concerned, Rule 22 is of some importance and

this provides for an application to be made for the grant of a mining lease in

respect of land in which the mineral vests in the government.  An application

for the grant of a mining lease is required to be made by an applicant to the

State Government in Form I to the MCR.  Sub rule (5) of Rule 22 deals with

a mining plan and it requires that a mining plan shall incorporate, amongst

other things, a tentative scheme of mining and annual programme and plan

for excavation for year to year for five years.   

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70.    Rule 22A of the MCR makes it clear that mining operations shall be

undertaken  only  in  accordance  with  the  duly  approved  mining  plan.

Therefore, a mining plan is of considerable importance for a mining lease

holder and is in essence sacrosanct.   A mining scheme and a mining plan are

a sine qua non for the grant of a mining lease.

71.    Rule 27 of the MCR deals with the conditions that every mining lease

is subject to.  One of the conditions is that the lessee shall comply with the

MCDR.  

72.    The format of a mining lease is given in Form K to the MCR and this

is relatable to Rule 31 of the MCR which provides that on an application for

the grant of a mining lease, if an order has been made for the grant of such

lease, a lease deed in Form K or in a form as near thereto as circumstances

of each case may require, shall be executed within six weeks of the order, or

within such extended period as the State Government may allow.

73.    Part VII of Form K deals with the covenants of the lessee/lessees.

Clause 10 thereof requires the lessee to keep records and accounts regarding

production and employees etc.  The lessee is required, inter alia, to maintain

a record of the quantity and quality of the mineral released from the leased

land, the prices and all other particulars of all sales of the mineral and such

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other facts, particulars and circumstances, as the Central Government or the

State Government may require.   

74.    Clause 11C is of some importance and it requires that the lessee shall

take measures for the protection of the environment like planting of trees,

reclamation  of  land,  use  of  pollution  control  devices  and  such  other

measures  as  may  be  prescribed  by  the  Central  Government  or  the  State

Government from time to time at the expense of the lessee.

75.    Rule 37 of the MCR deals with the transfer of a lease and provides,

inter  alia,  that  a mining lessee shall  not  without the previous consent  in

writing of the State Government or the Central Government, as the case may

be,  assign,  sublet,  mortgage,  or  in any other manner, transfer  the mining

lease, or any right, title or interest therein.  The lessee shall not enter into or

make any  bona fide arrangement,  contract  or  understanding whereby the

lessee will or may directly or indirectly be financed to a substantial extent in

respect of its operations or undertakings or be substantially controlled by

any person or body of persons.  Sub-rule (3) of Rule 37 of the MCR enables

a  State  Government  to  determine  any  lease  if  the  mining  lessee  has

committed a breach of Rule 37 of the MCR or has transferred any lease or

any right, title or interest therein otherwise than in accordance with sub-rule

(2) of Rule 37 of the MCR.

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Mineral Conservation and Development Rules, 1988

76.    The MCDR promulgated under Section 18 of the MMDR Act and

referred to in Rule 27 of the MCR are also of some significance.  Rule 9 of

the MCDR prescribes that no person shall commence mining operations in

any area except in accordance with a mining plan approved under Clause (b)

of sub-section (2) of Section 5 of the MMDR Act.

77.    The mining plan may be modified in terms of Rule 10 of the MCDR in

the interest  of safe and scientific mining, conservation of minerals or for

protection of the environment. However, the application for modifications

shall set forth the intended modifications and explain the reasons for such

modifications. The mining plan cannot be modified just for the asking.

78.    Rule 13 of the MCDR provides that mining operations are required to

be carried out  by every holder of a  mining lease in accordance with the

approved mining plan.  If the mining operations are not so carried out, the

mining operations may be suspended by the Regional Controller of Mines in

the Indian Bureau of Mines or another authorized officer.

79.     From our  point  of  view, Chapter  V of  the  MCDR  dealing  with

“Environment” is of significance.   In this Chapter, Rule 31 of the MCDR

provides  that  every  holder  of  a  mining  lease  shall  take  all  possible

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precautions for the protection of the environment and control of pollution

while conducting any mining operations in the area.   

80.    Rule 37 of the MCDR requires certain precautions to be taken against

air pollution and obliges the mining lease holder to keep air pollution under

control and within permissible limits specified under various environmental

laws including the Air (Prevention and Control of Pollution) Act, 1981 and

the Environment (Protection) Act, 1986.   

81.    Rule 38 of the MCDR requires the holder of a mining lease to take all

possible  precautions  to  prevent  or  reduce  the  passage  of  toxic  and

objectionable  liquid  effluents  from  the  mine  into  surface  water  bodies,

ground water  aquifer  and usable  lands  to  a  minimum.   It  also  mandates

effluents to be suitably treated, if required, to conform to the standards laid

down in this regard.  In other words, the provisions of the Water (Prevention

and Control of Pollution) Act,  1974 are required to be adhered to by the

mining lease holder.

82.    Rule 41 of the MCDR requires every holder of a mining lease to carry

out mining operations in such a manner as to cause least damage to the flora

of the area and the nearby areas.  Every holder of a mining lease is required

to take immediate measures for planting not less than twice the number of

trees destroyed by reason of any mining operations and to look after them

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during the subsistence of the lease after which these trees shall be handed

over to the State Forest Department or any other appropriate authority.  The

holder of a mining lease is also required to restore, to the extent possible,

other flora destroyed by the mining operations.

83.    Briefly therefore, the overall purpose and objective of the MMDR Act

as well as the rules framed there under is to ensure that mining operations

are carried out in a scientific manner with a high degree of responsibility

including responsibility in protecting and preserving the environment and

the flora of the area. Through this process, the holder of a mining lease is

obliged  to  adhere  to  the  standards  laid  down  under  the  Environment

(Protection) Act, 1986 or the EPA as well as the laws pertaining to air and

water  pollution  and  also  by  necessary  implication,  the  provisions  of  the

Forest (Conservation) Act, 1980 (for short ‘the FC Act’). Exploitation of the

natural  resources is  ruled out.   If  the  holder  of  a  mining lease does not

adhere  to  the  provisions  of  the  statutes  or  the  rules  or  the  terms  and

conditions of the mining lease, that person is liable to incur penalties under

Section  21  of  the  MMDR  Act.   In  addition  thereto,  Section  4A of  the

MMDR  Act  which  provides  for  the  termination  of  a  mining  lease  is

applicable.   This  provides  that  where  the  Central  Government,  after

consultation with the State Government is of opinion that it is expedient in

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the interest of regulation of mines and mineral development, preservation of

natural  environment,  prevention  of  pollution,  etc.  then  the  Central

Government may request the State Government to prematurely terminate a

mining lease.

Environment Impact Assessment Notification of 27th January, 1994

84.    As can be seen from the statutory scheme adverted to above, protection

and preservation of the environment is a significant and integral component

of a mining plan, a mining lease and mining operations  and rightly so.  ˗˗

85.    Keeping this in mind, an Environment Impact Assessment Notification

dated 27th January, 1994 was issued by the Central Government in exercise

of powers conferred by Section 3(1) and Section 3(2)(v) of the EPA read

with  Rule  5(3)(d)  of  the  Environment  (Protection)  Rules,  1986.   The

Environment Impact Assessment Notification dated 27th January, 1994 (for

short ‘EIA 1994’)  is a prohibitory notification and directs that on and from

the  date  of  its  publication  in  the  official  gazette:  (i)  expansion  or

modernization of any activity (if pollution load is to exceed the existing one)

and (ii) a new project listed in Schedule I to the notification, shall not be

undertaken unless it has been accorded environmental clearance (for short

EC) by the Central Government in accordance with the procedure specified

in the notification.

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86.    The notification provides, among other things, that in case of mining

operations, site clearance shall be granted for a sanctioned capacity and shall

be valid  for  a period of  five years  from commencing mining operations.

What this means is that on receipt of an EC a mining lease holder can extract

a mineral only from a specified site, upto the sanctioned capacity and only

for  a  period of  five  years  from the  date  of  the  grant  of  an  EC.  This  is

regardless of the quantum of extraction permissible in the mining plan or the

mining  lease  and  regardless  of  the  duration  of  the  mining  lease.

Consequently, a mining lease holder would necessarily have to obtain a fresh

EC every five years and can also apply for an increase in the sanctioned

capacity.  There  is  no  concept  of  a  retrospective  EC  and  its  validity

effectively  starts  only  from  the  day  it  is  granted.   Thus,  the  EC  takes

precedence  over  the  mining  lease  or  to  put  it  conversely,  the  mining

operations under a mining lease are dependent on and ‘subordinate’ to the

EC.  

87. On 4th May, 1994 an Explanatory Note was added to EIA 1994. We

are  concerned  with  the  1st Note  which  deals  with  the  expansion  and

modernization of existing projects.  This reads as follows:

“1. Expansion and modernization of existing projects

A project proponent is required to seek environmental clearance for a  proposed  expansion/modernization  activity  if  the  resultant

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pollution load is to exceed the existing levels.  The words “pollution load” will in this context cover emissions, liquid effluents and solid or semi-solid wastes generated.  A project proponent may approach the concerned State Pollution Control Board (SPCB) for certifying whether the proposed modernization/expansion activity as listed in Schedule-I  to  the  notification  is  likely  to  exceed  the  existing pollution load or not.  If it is certified that no increase is likely to occur in the existing pollution load due to the proposed expansion or modernization,  the project  proponent will  not be required to seek environmental clearance, but a copy of such certificate issued by the SPCB will have to be submitted to the Impact Assessment Agency (IAA) for information.  The IAA will however, reserve the right to review such cases in the public interest if material facts justifying the need for such review come to light.”

88.    The Note is significant and from its bare reading it is clear that if any

proposed expansion or modernization activity results in an increase in the

pollution load, then a prior EC is required.  The project proponent should

approach the concerned State Pollution Control Board (for short the SPCB)

for certifying whether the proposed expansion or modernization is likely to

exceed the existing pollution load or not.  If the pollution load is not likely to

be exceeded, the project proponent will not be required to seek an EC but a

copy of such a certificate from the SPCB will require to be submitted to the

Impact Assessment Agency which can review the certificate.

89.    What is the requirement, if any, under EIA 1994 with regard to an

existing  mining  lease  where  there  is  no  proposal  for  expansion  or

modernization? Does such a mining lease holder require an EC to continue

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mining operations?  This is answered in the 8th Note which is also of some

importance and this reads as follows:

“8.  Exemption for projects already initiated

For  projects  listed  in  Schedule-I  to  the  notification  in  respect  of which required land has been acquired and all relevant clearances of the  State  Government  including  NOC  from  the  respective  State Pollution  Control  Boards  have been obtained before  27th January, 1994, a project proponent will not be required to seek environmental clearance from the IAA.  However those units who have not as yet commenced production will inform the IAA.”

90.    The above Note makes it clear that existing mining projects that have a

no objection certificate from the SPCB before 27th January, 1994 will not be

required to obtain an EC from the Impact Assessment Agency. Of course,

this  is  subject  to  the  substantive  portion  of  EIA 1994  and  the  1st Note.

However,  if  the  existing  mining  project  does  not  have  a  no  objection

certificate from the SPCB, then an EC will be required under EIA 1994.

91.    Two questions immediately arise from a reading of the 1st and the 8th

Note.   The  first  question  is:   What  is  the  base  year  for  considering the

pollution load while proposing any expansion activity?  The second question

is: What is the duration for which an EC is not necessary for an ongoing

project which does not propose any expansion, or to put it differently, what

is the validity period for a no objection certificate from the SPCB?

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92.    In our opinion, as far as the first question is concerned, a reading of

EIA 1994 read with the 1st Note implies that the base year would need to be

the immediately preceding year that is 1993-94.  This is obvious from the

opening sentence of the 1st Note, that is, “A project proponent is required to

seek  environmental  clearance  for  a  proposed  expansion/modernization

activity  if  the  resultant  pollution  load  is  to  exceed  the  existing  levels.”

(Emphasis supplied).  In its report, the CEC has taken 1993-94 as the base

year and we see no error in this.  Even the MoEF in its circular dated 28th

October, 2004 stated with regard to the expansion in production:  “If the

annual production of any year from 1994-95 onwards exceeds the annual

production of 1993-94 or its preceding years (even if approved by IBM), it

would constitute expansion.”   If that expansion results in an increase in the

pollution load over the existing levels, then an EC is mandated.

93.    It was contended on behalf of the mining lease holders that in terms of

the  circular  of  28th October,  2004  the  annual  production  even  prior  to

1993-94 could be considered for ascertaining if there was an expansion or

not. We cannot accept this submission for a variety of reasons. For one, the

existing  levels mentioned  in  the  1st Note  clearly  have  reference  to  the

immediately preceding year and not to a preceding year in a comparatively

remote past. Secondly, a very high annual production in any one year is not

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reflective of a consistent pattern of production – it could very well be a freak

year and that freak year certainly cannot be a basic standard or the norm to

measure expansion. Then if the interpretation sought to be given is accepted,

there would be an absence of  consistency and a  lack of  uniformity  with

different  mining lease holders  having different  base years.  This is  hardly

conducive to good governance. Finally, EIA 1994 was intended to prevent

the existing environmental load from increasing based on the existing data

of the immediate past and not data of a few years gone by.  We may add that

the only exception that could be made in this regard would be if there is no

production during 1993-94.  In that event, the immediately preceding year

would be relevant and that is the only reasonable interpretation that we see

for the use of the words “or its preceding years”.

94.    On the question of the duration or exemption period from an EC in

respect  of  a  project  that  has  commenced  prior  to  27th January, 1994 the

substantive portion of EIA 1994 and the 8th Note grant an exemption from

the requirement of obtaining an EC if there is no expansion and the existing

pollution load is not exceeded. In any event, a no objection certificate from

the SPCB is necessary for continuing the mining operations. Consequently,

even if any mining lease holder does not have an EC or does not require an

EC for continuing mining operations (but has a no objection certificate from

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the SPCB), the absence of an EC would not have an adverse impact on the

mining lease holder unless of course, there was an expansion in the mining

operations without any certificate from the SPCB.  In addition to this, the

validity period (if any) of the certificate from the SPCB is important – we

have not been made aware whether there is such a validity period or not.  

95.    The contention of learned counsel for the mining lease holders that EIA

1994 was rather vague, uncertain and ambiguous cannot be accepted.  In our

opinion,  on  a  composite  reading  of  EIA 1994,  it  is  clear  that:  (i)  A no

objection certificate from the SPCB was necessary for continuing mining

operations;  (ii)  An  expansion  or  modernization  activity  required  an  EC

unless the pollution load was not exceeded beyond the existing levels; (iii)

The base year for determining the pollution load and therefore the proposed

expansion would be with reference to 1993-94; (iv) Whether an expansion or

modernization would lead to exceeding the existing pollution load or not

would require a certificate from the SPCB which could be reviewed by the

IAA;  (v)  New projects  require  an  EC;  and (vi)  Existing  projects  do  not

require an EC unless there is an expansion or modernization for the duration

(if any) of the validity of the certificate from the SPCB.  We need not say

anything more on this subject since the CEC has proceeded to discuss the

issue of mining in excess of the EC or in excess of the mining plan only

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from the year 2000-01 onwards.  The prior period may, therefore, be ignored

and it is the period from 2000-01 onwards which is actually relevant for the

present discussion.

96.    It was submitted by learned counsel for the mining lease holders that

the MoEF had caused some confusion with regard to the requirement of an

EC at the time of renewal of a mining lease. In this connection, reference

was made to a Press Note of July 1994 and a letter dated 19 th June, 1997 of

the MoEF to the Chief Conservator of Forests in the MoEF.

97.    Learned counsel for the mining lease holders sought to buttress their

submission that  EIA 1994 was vague and ambiguous by mentioning two

circulars issued by the MoEF on 5th November, 1998 and 27th December,

2000 extending the period for obtaining an EC for new units. However, these

circulars are apparently not on our record (which goes into 148 volumes)

and therefore we cannot make any comment about them.  These circulars

were mentioned to also contend that even for new units the absence of an EC

would not have an adverse impact on them, since the period for obtaining an

EC was  extended from time to  time.    A reference  was also  made to  a

circular  dated  14th May,  2002  which  later  on  became  the  subject  of

consideration by this Court in M.C. Mehta v. Union of India.8  A reading of

8  (2004) 12 SCC 118

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the circular of 14th May, 2002 indicates that several units had come up in

violation of EIA 1994.  The MoEF had taken the view that such units may be

permitted to apply for an EC by 31st March, 1999 which was then extended

to 30th June, 2001 by circulars dated 5th November, 1998 and 27th December,

2000 respectively.

98.    By the circular dated 14th May, 2002 the deadline for applying for an

EC was extended up to 31st March, 2003 as a last and final opportunity to

obtain an ex post facto EC in respect of units which had commenced mining

operations  without  obtaining  a  prior  EC  in  violation  of  EIA 1994.  The

circular also stated that: “Suitable directions shall be issued by all States/UTs

under  the  Environment  (Protection)  Act  to  units  to  stop  construction

activities/operations of all  such units  that  fail  to apply for  environmental

clearance  by  31st March,  2003.   Units  which  fail  to  comply  with  these

directions shall be proceeded against forthwith under the relevant provisions

of  the  Environment  (P)  Act,  1986  without  making  reference  to  this

Ministry.”

99.    It was submitted that in view of these ambiguous and unclear signals

emanating  from  the  MoEF  which  resulted  in  confusion  being  worse

confounded, the mining lease holders were not clear whether or not they

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were  required  to  obtain  an  EC  particularly  in  respect  of  pre-EIA 1994

mining leases and operations.

100.   As mentioned above, these dates and the text of the circulars were

emphasized by learned counsel for the lease holders to contend that it was

not obligatory for the mining lease holders, who did not expand their mining

operations, to obtain an EC and in any event the period for obtaining an EC

was  extended  till  31st March,  2003  with  ex  post  facto approval.  In  this

context, reliance was placed on M.C. Mehta referred to above.  

101.   We are not in agreement with the contention of learned counsel for the

mining lease holders on the interpretation given to the various circulars for

the reasons given above and must also correctly appreciate the decision of

this Court in M.C. Mehta.

102.   In  M.C. Mehta the issue that arose for consideration was whether

mining activity in the Aravalli hills causes environmental degradation and

what directions are required to be issued. While considering this issue, this

Court also considered EIA 1994 and the circular dated 14 th May, 2002.  In

doing so, this Court categorically held in paragraph 37 of the Report that the

intention of the MoEF was not to legalize the continuance of mining activity

without complying with the requisite stipulations. If that were unfortunately

so,  then  it  would  demonstrate  a  lack  of  sensitivity  of  the  MoEF to  the

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principles  of  sustainable  development  and the object  behind issuing EIA

1994. This Court said:

“It  does  not  appear  that  MOEF  intended  to  legalise  the commencement  or  continuance  of  mining  activity  without compliance of stipulations of the notification. In any case, a statutory notification  cannot  be  notified  [modified]  by  issue  of  circular. Further,  if  MOEF  intended  to  apply  this  circular  also  to  mining activity commenced and continued in violation of this notification, it would also show total non-sensitivity of MOEF to the principles of sustainable  development  and  the  object  behind  the  issue  of notification. The circular has no applicability to the mining activity.”

103.    Adverting  to  the  MMDR  Act,  this  Court  expressed  the  view  in

paragraph 52 of the Report that the approval of a mining plan does not imply

that a mining lease holder can commence mining operations. The mining

lease  holder  is  nevertheless  obliged  to  comply  with  statutory  provisions

including the EPA and other laws. It was said:

“The grant of permission for mining and approving mining plans and the scheme by the Ministry of Mines, Government of India by itself does not mean that mining operation can commence. It  cannot be accepted that by approving mining plan and scheme by the Ministry of  Mines,  the  Central  Government  is  deemed  to  have  approved mining and it  can commence forthwith  on  such approval……. A mining leaseholder is also required to comply with other statutory provisions such as the Environment (Protection) Act, 1986, the Air (Prevention  and  Control  of  Pollution)  Act,  1981,  the  Water (Prevention  and  Control  of  Pollution)  Act,  1974  and  the  Forest (Conservation) Act, 1980. Mere approval of the mining plan by the Government  of  India,  Ministry  of  Mines  would  not  absolve  the leaseholder from complying with the other provisions.”

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104.   This Court also considered the question of the applicability of EIA

1994 to the renewal of an existing mining lease. It was held that the said

notification would apply to the renewal of a mining lease that came up for

consideration post 27th January, 1994.  In other words, for the renewal of a

mining lease, an EC was required by the mining lease holder.  It was held in

paragraph 77 of the Report:

“We are unable to accept the contention that the notification dated 27-1-1994  would  not  apply  to  leases  which  come  up  for consideration  for  renewal  after  issue  of  the  notification.  The notification  mandates  that  the  mining  operation  shall  not  be undertaken in any part of India unless environmental clearance by the Central Government has been accorded. The clearance under the notification is valid for a period of five years. In none of the leases the requirements of the notification were complied with either at the stage of initial grant of the mining lease or at the stage of renewal. Some  of  the  leases  were  fresh  leases  granted  after  issue  of  the notification. Some were cases of renewal. No mining operation can commence  without  obtaining  environmental  impact  assessment  in terms of the notification.”

105.   It is clear from the decision rendered by this Court that EIA 1994 is

mandatory  in  character;  that  it  is  applicable  to  all  mining  operations

–expansion of production or even increase in lease area, modernization of

the extraction process, new mining projects and renewal of mining leases.  A

mining lease holder is obliged to adhere to the terms and conditions of a

mining lease and the applicable laws and the mere fact that a mining plan

has  been  approved  does  not  entitle  a  mining  lease  holder  to  commence

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mining operations. In  M.C. Mehta this Court concluded that EIA 1994 is

clearly applicable to the renewal of a mining lease.  

106.   Subsequent to the decision in M.C. Mehta two clarificatory circulars

were issued by MoEF on 28th October, 2004 and 25th April, 2005.  These

were adverted to by learned counsel for the mining lease holders but in our

opinion they are not relevant except to the extent that they make it explicit

that following the decision of this Court in M.C. Mehta, an EC is required to

be  obtained  before  the  renewal  of  a  mining  lease  and  that  the  term

‘expansion’ would include an increase in production or  the lease area or

both.

107.    It  was  submitted  on  behalf  of  the  mining  lease  holders  that  the

possibility of getting an  ex post facto EC was a signal to the mining lease

holders  that  obtaining  an  EC  was  not  mandatory  or  that  if  it  was  not

obtained, the default was retrospectively condonable. We do not agree. We

have referred to various provisions of the MMDR Act and the rules framed

thereunder to indicate the statutory importance given to the protection and

preservation of the environment. This was also emphasized in M.C. Mehta

in which it was also stated that “It does not appear that MOEF intended to

legalise  the  commencement  or  continuance  of  mining  activity  without

compliance  of  stipulations  of  the  notification.”  It  appears  to  us  that  the

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MoEF was, in a sense, cajoling the mining lease holders to comply with the

law and EIA 1994 rather than use the stick. That the mining lease holders

chose to misconstrue the soft implementation as a licence to not abide by the

requirements  of  the  law  is  unfortunate  and  was  an  act  of  omission  or

commission by them at their own peril.  We cannot attribute insensitivity to

the MoEF or even to the mining lease holders to environment protection and

preservation,  but  at  the  same time  we cannot  overlook the  obligation  of

everyone to abide by the law. That the MoEF took a soft approach cannot be

an escapist excuse for non-compliance with the law or EIA 1994.     

Environment Impact Assessment Notification of 14th September, 2006

108.   On 14th September, 2006 another EIA Notification was issued by the

MoEF.  This notification (for short EIA 2006)  required prior EC for projects

or activities mentioned in the Schedule to it both for major as well as minor

minerals if the leased area is 5 hectares or more.  We were informed that

several mining lease holders, in compliance with EIA 2006, applied for and

were granted an EC.

109.   It was submitted by learned counsel for the mining lease holders that

the  confusion,  vagueness  and  uncertainty  caused  by  EIA  1994  and

subsequent  circulars  and  other  communications  did  not  end  with  the

issuance of EIA 2006. Reference was made to a circular dated 13 th October,

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2006 which deals  with interim operational  guidelines till  13th September,

2007 in respect of applications made under EIA 1994.  We do not see the

relevance of  this  circular  (which really dealt  with transitional  issues)  not

only  for  the  reason  given  in  M.C.  Mehta that  circulars  cannot  override

statutory  notifications  but  also  because  it  deals  with  the  procedure  for

considering applications made under EIA 1994.

110.    Reference was also made to a circular  dated 2nd July, 2007.  The

passage relied upon reads as follows:-

“It is clarified that all  such mining projects which did not require environmental  clearance  under  the  EIA Notification,  1994  would continue to operate without obtaining environmental  clearance till the mining lease falls due for renewal, if there is no increase in lease area and/or there is no enhancement of production.  In the event of any increase in lease area and or production, such projects would need  to  obtain  prior  environmental  clearance.   Further,  all  such projects  which  have  been  operating  without  any  environmental clearance would obtain environmental clearance at the time of their lease renewal even if there is no increase either in terms of lease area or production.”

111.   The aforesaid circular relates to three categories that is: (i) Mining

leases, where no EC was required under EIA 1994 would continue to operate

without an EC; (ii) If there was an increase in the lease area or enhancement

of  production,  an  EC was  required  by  the  mining  lease  holder;  (iii)  All

projects would require an EC at the time of renewal of the mining lease even

if there was no increase in the lease area or enhancement of production.

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112.    Reference  was  also  made  to  an  Office  Memorandum  dated

19th August, 2010. However a reading of this document brings out that it

basically relates to construction at site but makes it clear that no activity

relating to any project covered under EIA 2006 including civil construction

could be undertaken without obtaining a prior EC except fencing of the site

to protect it from getting encroached and construction of temporary sheds for

the guards.

113.   Reference  was  also  made  to  Office  Memorandums  dated

16th November, 2010 and 12th December, 2012 but  having gone  through

them we find them of little relevance as they deal with procedural issues

only.

114.   All that we need to say on this subject is that there is no confusion,

vagueness  or  uncertainty  in  the  application  of  EIA 1994  and  EIA 2006

insofar as mining operations were commenced on mining leases before 27 th

January,  1994  (or  even  thereafter).   Post  EIA 2006,  every  mining  lease

holder having a lease area of 5 hectares or more and undertaking mining

operations in respect of major minerals (with which we are concerned) was

obliged to get an EC in terms of EIA 2006.  

115.   An attempt was then made by learned counsel for the mining lease

holders to get out of the rigours of EIA 1994 and EIA 2006 by contending

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that some of them had modified the mining plan (with approval) and that

therefore they had extracted iron ore or manganese ore, as the case may be,

in terms of the mining plan but not necessarily in terms of the EC that had

been obtained, if at all.

116.   We have already held that a mining plan is subordinate to the EC and

in  M.C. Mehta  it was held by this Court that having an approved mining

plan  does  not  imply  that  a  mining  lease  holder  can  commence  mining

operations.   That  being so,  a  modified mining plan without  a  revised or

amended EC, is of no consequence.  What the contention of learned counsel

suggests to us is that under the shield of a modified mining plan, illegal or

unlawful  mining  in  the  form  of  mining  without  an  EC,  mining  by

over-reaching EIA 1994 and EIA 2006 was being carried out.

117.   The contention apart, the subterfuge of obtaining a modified mining

plan  to  get  over  the  adverse  effects  of  excess  and  illegal  or  unlawful

production of iron ore or manganese ore was deprecated by the Ministry of

Mines  of  the  Government  of  India.  In  a  letter  dated  29th October,  2010

addressed to the Controller General, Indian Bureau of Mines it was pointed

out that State Governments had expressed a concern that the Indian Bureau

of Mines (IBM) had been modifying mining plans for allowing an increase

in production of ore without adequate intimation to the State Governments.

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A concern was raised that such a revision was often being used to increase

production  of  ore,  which  is  sometimes  not  accounted  for  in  mining

operations  in  the  concerned  mining  lease.  It  was  made  clear  that  all

modifications  of  mining  plans  shall  be  effective  prospectively  only  and

earlier  instances  of  irregular  mining  shall  not  be  regularized  through  a

modification of the mining plan.  

118.    In a subsequent letter dated 12th December, 2011 addressed to the

Chief Secretary in the Government of Orissa the said Ministry of Mines

noted that there were violations of the actual production limit laid down in

the mining plan and that the State Government had finally taken steps to

curb illegal mining in respect of over-production of minerals.  There was a

reference to suggest (and we take it to be so) that 20% deviation from the

mining  plan  (in  terms  of  over-production)  would  be  reasonable  and

permissible.  However, it appears from a reading of the communication that

illegal  mining  was  going  on  beyond  the  20%  deviation  limit  and  that

appropriate steps were needed to curb these violations.  Learned counsel for

the petitioners submitted that such egregious violations must be firmly dealt

with by cancellation or termination of the mining lease and a soft approach

is not called for.

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119.   In this context, it is worth noting that a High Level Committee (called

the Hoda Committee)  on the National Mineral Policy noted in its Report

dated 22nd December, 2006 in paragraph 3.47 as follows :

“3.47  An EMP [Environment Management Plan] has to be prepared under the MCDR and got approved by IBM. However, this EMP is not acceptable to the MoEF. The miner has to prepare two EMPs separately  one for IBM and another for MoEF.  The Committee˗˗ suggests  that  IBM  and  MoEF  should  prepare  guidelines  for  a composite EMP so that IBM can approve the same in consultation with MoEF’s field offices.  This will eliminate anomalous situations where increase of even a few tonnes in production requires project authorities to get a fresh EMP approved from the MoEF although the IBM  allows  a  grace  of  +10%  per  cent,  keeping  in  view  the fluctuations in the market situation and process complexities.  If a single EMP is accepted in principle such anomalies can be resolved in  advance.  The  Committee  feels  the  MoEF  should  also  have  a cushion  of  +10%  per  cent  in  production  while  giving  EIA clearance.”

120.    The  above  passage  indicates  that  the  permissible  variation  in

production as per the Indian Bureau of Mines is +10% but according to the

letter  dated  12th December,  2011  issued  by  the  Ministry  of  Mines,  the

reasonable variation limit could be +20%. It is not clear why there was a

shift in the variation, but as rightly pointed out by learned counsel for the

petitioners, the fact that in some cases the variation exceeded 20% was a

cause for concern which necessitated strict and punitive action.

121. A submission  was  made  by  learned  counsel  for  the  mining  lease

holders  to  the effect  that  since many of them had been granted  the first

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deemed statutory renewal of the mining lease under Rule 24A of the MCR,

the requirements of EIA 1994 would not be applicable.  We were shown

various  amendments  made  to  Rule  24A of  the  MCR from time  to  time

particularly the amendments made on 10th February, 1987, 7th January 1993,

27th September, 1994, 17th January, 2000, 18th July, 2014 and 8th October,

2014.  In our opinion,  none of these are of any consequence,  the reason

being that for the purposes of renewal of the mining lease, an application is

required to be made by the mining lease holders and the deemed renewal

clause under Rule 24A of the MCR will come into operation only after an

application for renewal is made in Form J in Schedule I of the MCR.  Under

Rule 26 of the MCR, the State Government may refuse to renew the mining

lease. That apart, the position in environmental jurisprudence with regard to

the renewal of a mining lease has been made explicit by this Court in M.C.

Mehta.   Even otherwise,  in  view of  EIA 1994,  it  is  quite  clear  that  the

renewal of a mining lease would require a prior EC.

122. We may also  draw attention in  this  regard to  a  circular  dated 28 th

October, 2004 issued by the MoEF wherein it was stated that in view of the

decision in M.C. Mehta all mining projects of major minerals of more than 5

hectares lease area that had not yet obtained an EC would have to do so at

the time of renewal of the lease.  

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123.   Finally, it was submitted that whenever an EC is granted, it would

have retrospective effect from the date of the application for grant of an EC.

In  this  context,  it  was  pointed  out  that  there  were  enormous  delays  in

granting an EC and that the Hoda Committee had noted with reference to

EIA 2006 that if  all  goes well,  the grant of an EC takes about 232 days

whereas the international norm is that an EC is granted within six months or

180 days.  According to the additional affidavit filed by some mining lease

holders,  the  period of  232 days  mentioned  by  the  Hoda Committee  was

actually a conservative estimate and that in fact it takes anything upto 390

days for the grant of an EC.  It was submitted that the position was even

worse under EIA 1994 since the MoEF rarely showed any urgency in the

grant  of  an  EC.   Examples  were  cited  before  us  to  show  that  in  some

instances the grant of an EC took more than two years.  Taking all this into

consideration it was submitted that it would be more appropriate that the EC

is given retrospective effect from the date of the application.

124. We are not in agreement with learned counsel for the mining lease

holders.  There is no doubt that the grant of an EC cannot be taken as a

mechanical  exercise.  It  can  only  be  granted  after  due  diligence  and

reasonable  care  since  damage  to  the  environment  can  have  a  long  term

impact.  EIA 1994 is therefore very clear that if expansion or modernization

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of any mining activity  exceeds the existing pollution load,  a prior  EC is

necessary and as already held by this Court in M. C. Mehta even for the

renewal of a mining lease where there is no expansion or modernization of

any activity, a prior EC is necessary. Such importance having been given to

an  EC,  the  grant  of  an  ex  post  facto environmental  clearance  would  be

detrimental to the environment and could lead to irreparable degradation of

the environment.  The concept of an  ex post facto or a retrospective EC is

completely  alien to  environmental  jurisprudence including EIA 1994 and

EIA 2006.  We make it clear that an EC will come into force not earlier than

the date of its grant.

Illegal Mining

125.   A question raised by learned counsel for  the mining lease holders

concerned the  interpretation of  the  expression ‘illegal  mining’.   Reliance

was placed on  the report of the CEC which refers to Rule 2(iia) of the MCR

to conclude that the violation of any rule within the mining lease area would

not come within the definition of ‘illegal mining’ except where there has

been a violation of the rules framed under Section 23C of the MMDR Act.  

According to the CEC:

“17.  Illegal  mining  has  been  defined  as  mining  operations undertaken  by  any  person  in  any  area  without  holding  a  mining lease.  It does not include violation of any rules within the mining lease area except the Rules made under Section 23C of the MMDR

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Act, 1957.  The mining lease area shall be considered as an area held with lawful authority by the lessee (refer Rule 2(iia), MCR, 1960).”

126.  As  can  be  seen  from the  above,  there  is  a  difference  of  opinion

between the CEC and the Commission on what is illegal mining or mining

without lawful authority and we will give our views on the subject.

127.   According to the lessees a mining operation only outside the mining

lease  area  would  constitute  ‘illegal  mining’ making  illegal  mining  lease

centric.  We are unable to accept this narrow interpretation given by the CEC

and relied upon by learned counsel for the mining lease holders.   

128.   The simple reason for not accepting this interpretation is that Rule 2(ii

a) of the MCR was inserted by a notification dated 26th July, 2012 while we

are concerned with an earlier period.  That apart, as mentioned above, the

holder of a mining lease is required to adhere to the terms of the mining

scheme, the mining plan and the mining lease as well as the statutes such as

the EPA,  the FCA, the Water  (Prevention and Control  of  Pollution)  Act,

1974 and the Air (Prevention and Control of Pollution) Act, 1981.  If any

mining operation is conducted in violation of any of these requirements, then

that mining operation is illegal or unlawful.   Any extraction of a mineral

through an illegal or unlawful mining operation would become illegally or

unlawfully extracted mineral.

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 65 of 114

129.    It  is  not,  as  suggested  by  learned  counsel,  that  illegal  mining  is

confined only to mining operations outside a leased area.  Such an activity is

obviously illegal or unlawful mining.   Illegal mining takes within its fold

excess extraction of a mineral  over the permissible limit  even within the

mining  lease  area  which  is  held  under  lawful  authority,  if  that  excess

extraction is contrary to the mining scheme, the mining plan, the mining

lease or a statutory requirement.    Even otherwise, it is not possible for us to

accept the narrow interpretation sought to be canvassed by learned counsel

for the mining lease holders particularly since we are dealing with a natural

resource which is intended for the benefit of everyone and not only for the

benefit of the mining lease holders.   

Encroachments

130.   Section 4(1) of the MMDR Act makes it clear that no person can carry

out any mining operations except under and in accordance with the terms

and conditions of a mining lease granted under the MMDR Act and the rules

made  thereunder.   Obviously  therefore,  any  person  carrying  on  mining

operations without a mining lease, is indulging in illegal or unlawful mining.

This  would also  necessarily  imply  that  if  a  mining lease  is  granted to  a

person  who  carries  out  mining  operations  outside  the  boundaries  of  the

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mining lease, the mineral extracted would be the result of illegal or unlawful

mining.

131.    In  its  report,  the  CEC  has  dealt  with  illegal  mining  outside  the

sanctioned mining areas.  It is stated that 82 mining leases for iron ore and

manganese  ore  were  identified  by  the  Commission  where  there  were

encroachments in the form of illegal mining pits, illegal over-burden dumps

etc.

132.   In respect of these 82 mining leases, the State of Odisha appointed a

Committee on the suggestion of the Commission, to survey and identify the

exact  extent  and  location  of  the  sanctioned  lease  area,  lease  area  under

occupation  of  the  mining  lease  holder  and  the  area  under

encroachment/illegal mining.  The Committee or the Joint Survey consisted

of  officers  of  the  Revenue  Department,  Forest  Department  and  Mining

Department of the State of Odisha who carried out a field survey in respect

of 39 mining leases.  The findings of the field survey or the Joint Survey

were verified by a team comprising of the Director Mines, Chief Engineer,

ORSAC and the Additional Secretary, F & E Department of the Government

of Odisha.

133. It is mentioned in the report of the CEC that the Joint Survey for each

of  the  39  mining  leases  is  technically  sound  and  reliable.   However,  in

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respect of some of the leases, it would be desirable for the State Government

to take another look at the results of the field survey.  Unfortunately, the

CEC has not identified these mining leases that require another look. Be that

as it may, the fact is that a joint survey has not been conducted in respect of

43 mining leases.

134. We are of the view that for completing the record and taking the report

of the CEC to its logical conclusion, it would be appropriate if a fresh Joint

Survey is conducted by concerned officers of  the Government  of  Odisha

from  the  Revenue  Department,  the  Forest  Department,  the  Mining

Department and any other department that may be deemed necessary.  The

Forest  Survey  of  India,  the  MoEF, the  Indian  Bureau  of  Mines  and  the

Geological Survey of India should also be associated in the Joint Survey.  In

our opinion, it would also be appropriate if the CEC is also associated in the

Joint  Survey  and  the  best  and  latest  technology  should  be  made  use  of

including satellite imagery and thereafter a report is submitted in this Court

on or before 31st December, 2017 after hearing the 82 lessees identified by

the Commission.

Adherence to the mining plan

135.  A side issue raised by learned counsel for the mining lease holders in

this  regard  was  the  necessity  (if  any)  of  adhering to  the  annual  plan  or

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 68 of 114

calendar plan of mining.  It was contended that a mining lease holder could

mine in excess of the annual plan.  While it is so, this submission must be

tempered and appreciated in the proper context.  A mining plan is valid for a

period of five years but there could be a 20% variation in extraction over and

above the mining plan. This is the maximum that is stated to be reasonably

permissible according to the Ministry of Mines.  In terms of Rule 22(5) of

the MCR a mining plan shall incorporate a tentative scheme of mining and

annual program and plan for excavation from year to year for five years.  At

best, there could be a variation in extraction of 20% in each given year but

this would be subject to the overall mining plan limit of a variation of 20%

over five years.  What this means is that a mining lease holder cannot extract

the five year quantity (with a variation of 20%) in one or two years only.

The extraction has to be staggered and continued over a period of five years.

If  any other  interpretation  is  given,  it  would  lead  to  an  absurd  situation

where a mining lease holder could extract the entire permissible quantity

under the mining plan plus 20% in one year and extract miniscule amounts

over the remaining four years, and this could be done without any reference

to the EC.  The submission of learned counsel in this regard simply cannot

be accepted.

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 69 of 114

136.  In the letter dated 12th December, 2011 sent by the Secretary in the

Ministry of Mines of the Government of India to the Chief Secretary of the

Government of Odisha (adverted to above) concerning violation of annual

production limit laid down in the approved mining plan, it was stated, inter

alia, that an analysis of production and violations in 104 mining leases for

bulk minerals in the last ten years was undertaken by the Indian Bureau of

Mines.  It was noted that in 71 cases there was excess ore produced beyond

the reasonable variation limit of 20%.  It was noted that this was partly due

to the failure of the State machinery to restrict the movement of minerals.

137. In a further letter dated 5th September, 2012 it was reiterated that any

violation  of  the  mining plan  or  the  mining  scheme noticed  by the  State

Government  should  be  immediately  brought  to  the  notice  of  the  Indian

Bureau of  Mines to  initiate  suitable  action.   It  was reiterated that  transit

passes to such mines should not be issued by the State Government so as to

stop any additional outgo.  It was added: “Needless to say any revision on

the  limits  of  production  is  subjected  to  statutory  clearances  under

Environment  and  Forest  laws.   Having  said  that,  the  State  Mining  and

Geology  officials  should  not  also  lose  focus  on  taking  stringent  action

against any instances of illegal mining, undertaken outside the leased area,

and  passed  off  as  excess  production.”  It  is  quite  clear  from  the

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 70 of 114

correspondence  placed  before  us  that  as  far  as  the  Union  of  India  is

concerned,  any violation of the requirements of the law has to be firmly

dealt with.  

138. With reference to the interpretation of Section 21(5) of the MMDR

Act (which we shall soon consider) it was stated as follows:

“Section 21(5)  of  MMDR Act  is  clearly  applicable  on  such land which is occupied without lawful authority. It is clarified that in the context  of  MMDR  Act,  1957,  violations  pertaining  to  mining operations within the mining lease area are to be dealt with only in terms  of  the  provisions  of  the  Mineral  Conservation  and Development Rules 1988. The State Governments have clear powers to tackle any offences related to mining outside the mining lease area in terms of  Section 23C of  the  MMDR Act,  1957.  However, the interpretation that a land granted under a Mining lease by the State Government can be held to be occupied without lawful authority on the grounds of violation of provisions of any other law of the land is not appropriate and such interpretation may not stand in the Court of law. Such Act or Rules, including the Environment (Protection) Act, 1986, or the Forest (Conservation) Act,  1980, etc.  clearly provide penalties  for  violations  under  those  laws.   This  aspect  may  be clarified to the State Accountant General also.”

139. All that we need say for the present is that the interpretation given in

the aforesaid letter to Section 21(5) of the MMDR Act is not fully correct.

While mining in excess of permissible limits under the mining plan or the

EC or  FC on  leased  area  may  not  amount  to  mining  on  land  occupied

without lawful authority, it  would certainly amount to illegal or unlawful

mining or mining without authority of law.

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 71 of 114

Section 21 of the MMDR Act  

140.  The discussion on illegal or unlawful mining takes us to the question of

the  consequence  of  illegal  or  unlawful  mining  and  the  interpretation  of

Section 21(1) and Section 21(5) of the MMDR Act.   

141.  Section 21(1) of the MMDR Act is clearly relatable to a penal offence

and applies  if  any one contravenes the provisions of  Section 4(1)  of  the

MMDR Act. Section 4(1) of the MMDR Act prohibits the undertaking of

any mining operation in any area except under and in accordance with the

terms  and  conditions  of  a  mining  lease  and  the  rules  made  thereunder.

Therefore, when a person carries out a mining operation in any area other

than a leased area or violates the terms of a mining lease, which incorporates

the mining plan and which requires adherence to the law of the land, that

person becomes liable for prosecution under Section 21(1) of the MMDR

Act.    In  the  event  of  a  conviction,  he  or  she  shall  be  punishable  with

imprisonment for a term which may extend to five years and with fine which

may extend to Rs.5 lakh per hectare of the area.   

142.  As far as Section 21(5) of the MMDR Act is concerned, according to

the  CEC the  provision  is  applicable  only  if  a  person  indulges  in  illegal

mining outside the mining lease area. Consequently, Section 21(5) of the

MMDR Act is not attracted even if the mineral raised within the mining

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 72 of 114

lease area is without an EC or beyond the quantity prescribed by the EC or

beyond the quantity permitted in the mining plan.  In such a situation, the

provisions of the EPA or the MCR come into play.  This interpretation is

supported by learned counsel for the mining lease holders who affirm that

Section  21(5)  of  the  MMDR Act  is  mining lease  area  centric.   In  other

words, according to the CEC and the learned counsel, for the purposes of

Section 21(5) of the MMDR Act illegal mining is mining outside the mining

lease area and Section 21(5) of the MMDR Act has to be understood in that

light.

143.  Reference was also made to the Explanation to Rule 2(iia) of the MCR

where it is stated that for the purposes of this clause, the violation of any

rules, other than the rules made under section 23C of the MMDR Act, within

the mining lease area by a holder of a mining lease shall not include illegal

mining. In other words, it was submitted that Section 21(5) of the MMDR

Act is required to be understood in the context of Rule 2(iia) of the MCR.

144.   It was submitted by Shri Ashok Desai learned senior counsel for one

of  the  intervenors,  that  the  penalty  postulated  by  Section  21(5)  of  the

MMDR Act though an imposition of a pecuniary liability, is punishment for

the commission of an offence.  By referring to  Khemka & Co. (Agencies)

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 73 of 114

Pvt. Ltd. v. State of Maharashtra9 it was contended that the liability sought

to be imposed by Section 21(5) of the MMDR Act is not a liability that is

created by a clear, unambiguous and express enactment.   

145.  As far as the Union of India is concerned, in its affidavit filed on 20 th

January,  2017  by  Shri  Sudhakar  Shukla,  Economic  Advisor  in  the

Government of India, Ministry of Mines, it is submitted (and this submission

is supported by the learned Attorney General in his oral submissions) that

Section 21(5) of the MMDR Act is in two parts.  The first part refers to the

raising of minerals without any lawful authority from any land.  The second

part is in addition to what is recoverable under the first part.  The addition is

to the effect that when a person raises a mineral from any area not in his or

her lawful authority, that person is also liable to pay the rent, royalty or tax

for the period during which the land was occupied without lawful authority.

146. It is further submitted that ‘illegal mining’ as defined in Rule 2(iia) of

the MCR is also required to be read in the context of Rule 26(4) and Rule

27(4A) of the MCR which deal with the refusal to renew a mining lease if

the mining lease holder is convicted of illegal mining and the determination

of a mining lease in the event the mining lease holder is convicted of illegal

mining.  It is submitted that the definition of illegal mining in the MCR must

9  (1975) 2 SCC 22

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be strictly construed and limited to the provisions of the MCR and cannot

apply to the provisions of Section 21(5) of the MMDR Act.

147.  In conclusion, it  is reiterated by the Union of India on affidavit as

follows:

“55.   That  considering  all  the  above,  the  Ministry  would  like  to submit that the provisions of sub-section (5) of Section 21 would apply to all minerals raised without any lawful authority, be it forest clearances  or  environment  clearances  or  any  other  such  legal requirements.

56.  That penalties would arise under section 21(5) of the MMDR Act, 1957, in respect of any form of mining activity without lawful authority.  Mining outside lease area would on the face of it amount to mining without lawful authority and would attract the provisions of section 21(5); and, in addition, all forms of mining without lawful authority  including  that  in  breach  of  the  limits  imposed  by  the Environmental  Clearance  carried  out  within  the  lease  area  would also invite penalties under section 21 (5).” (Emphasis given by us).

148.  On behalf of the State of Odisha, it was submitted by Shri Rakesh

Dwivedi learned senior counsel by relying upon  Karnataka Rare Earth v.

Senior Geologist, Department of Mines & Geology10 that what is sought to

be achieved by Section 21(5) of the MMDR Act is to recover the price of the

mineral that has been illegally or unlawfully or unauthorisedly raised with

an intention to compensate the State for the loss of the mineral owned by it,

the loss having been caused by a person who is not authorized by law to

raise that mineral.  There is no element of penalty involved in this and the

10 (2004) 2 SCC 783

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 75 of 114

recovery  of  the  mineral  or  its  price  is  not  a  penal  action  but  is  merely

compensatory.  This is what this Court had to say in Karnataka Rare Earth:

“12. Is the sub-section (5) of Section 21 a penal enactment? Can the demand of mineral or its price thereunder be called a penal action or levy of penalty?

13. A penal statute or penal law is a law that defines an offence and prescribes  its  corresponding fine,  penalty  or  punishment.  (Black’s Law Dictionary, 7th Edn., p. 1421.) Penalty is a liability composed (sic imposed) as a punishment on the party committing the breach. The very use of the term “penal” is suggestive of punishment and may  also  include  any  extraordinary  liability  to  which  the  law subjects a wrongdoer in favour of the person wronged, not limited to the damages suffered. (See Aiyar, P. Ramanatha:  The Law Lexicon, 2nd Edn., p. 1431.)

14. In support of the submission that the demand for the price of mineral raised and exported is in the nature of penalty, the learned counsel for the appellants has relied on the marginal note of Section 21.  According  to  Justice  Singh,  G.P.:  Principles  of  Statutory Interpretation (8th Edn., 2001, at p. 147), though the opinion is not uniform but the weight of authority is in favour of the view that the marginal note appended to a section cannot be used for construing the section. There is no justification for restricting the section by the marginal note nor does the marginal note control the meaning of the body of the section if the language employed therein is clear and spells  out its  own meaning.  In  Director of  Public Prosecutions v. Schildkamp11 Lord Reid opined that a sidenote is a poor guide to the scope  of  a  section  for  it  can  do  no more  than  indicate  the  main subject with which the section deals and Lord Upjohn opined that a sidenote  being  a  brief  précis  of  the  section  forms  a  most  unsure guide to the construction of the enacting section and very rarely it might  throw some light  on  the  intentions  of  Parliament  just  as  a punctuation mark.

15. We are clearly of the opinion that the marginal note “penalties” cannot be pressed into service for giving such colour to the meaning

11 (1969) 3 All ER 1640 : (1970) 2 WLR 279 (HL)

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of sub-section (5) as it cannot have in law. The recovery of price of the mineral is intended to compensate the State for the loss of the mineral owned by it and caused by a person who has been held to be not entitled in law to raise the same. There is no element of penalty involved and the recovery of price is not a penal action. It is just compensatory.”

149. We are in agreement with the view expressed by the learned Attorney

General and Shri Dwivedi as also the view expressed in Karnataka Rare

Earth.  The decision in  Khemka & Co. is not at all apposite. There is no

ambiguity in Section 21(5) of the MMDR Act or in its application. We are

also of opinion that though Section 21(1) of the MMDR Act might be in the

realm of criminal liability, Section 21(5) of the MMDR Act is certainly not

within that realm.

150.  In our opinion, Section 21(5) of the MMDR Act is applicable when

any person raises, without any lawful authority, any mineral from any land.

In that event, the State Government is entitled to recover from such person

the mineral so raised or where the mineral has already been disposed of, the

price thereof as compensation. The words ‘any land’ are not confined to the

mining lease area.  As far as the mining lease area is concerned, extraction of

a mineral over and above what is permissible under the mining plan or under

the EC undoubtedly attracts the provisions of Section 21(5) of the MMDR

Act being extraction without lawful authority.  It would also attract Section

21(1) of the MMDR Act. In any event, Section 21(5) of the Act is certainly W.P. (C) Nos. 114/2014 etc.                                                                                            Page 77 of 114

attracted and is not limited to a violation committed by a person only outside

the mining lease area – it includes a violation committed even within the

mining lease area.  This is also because the MMDR Act is intended, among

other things, to penalize illegal or unlawful mining on any land including

mining lease land and also preserve and protect the environment.  Action

under the EPA or the MCR could be the primary action required to be taken

with reference to the MCR and Rule 2(ii a) thereof read with the Explanation

but that cannot preclude compensation to the State under Section 21(5) of

the MMDR Act.  The MCR cannot be read to govern the MMDR Act.

151.  What is the significance of this discussion? It was submitted that the

CEC has taken the following view:

“…… it may be appropriate that 30% of the notional value of the iron  and  manganese  produced  by  each  of  the  lessees  without/in excess  of  the  environmental  clearances  may  be  directed  to  be recovered  from  the  concerned  lessees  and  with  the  explicit understanding  the  concerned  lessees  as  well  as  the  officers  will continue to be liable for action under the provisions of the respective Acts.”

152.  Learned counsel for the petitioners and the learned  Amicus  were of

opinion that the provisions of Section 21(5) of the MMDR Act require that

the entire price of the illegally mined ore should be recovered from each

defaulting lessee. Similarly, in its affidavit, the Union of India differs with

the recommendation of the CEC.  According to the affidavit of the Union of

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 78 of 114

India  this  would  be  contrary  to  the  statutory  scheme  and  in  fact  100%

recovery  should  be  made  under  the  provisions  of  Section  21(5)  of  the

MMDR.  We may note that only to this extent, the learned Attorney General

differed with the view expressed by the Union of India and submitted that

the recommendation of the CEC to recover only 30% of the value of the

illegally mined ore should be accepted.  

153. In  our  opinion,  there  can  be  no  compromise  on  the  quantum  of

compensation  that  should  be  recovered  from  any  defaulting  lessee  –  it

should be 100%. If there has been illegal mining, the defaulting lessee must

bear the consequences of the illegality and not be benefited by pocketing

70% of the illegally mined ore. It simply does not stand to reason why the

State should be compelled to forego what is its due from the exploitation of

a natural resource and on the contrary be a party in filling the coffers of

defaulting lessees in an ill gotten manner.   

Calculations on merits

154.  The issue now is with regard to the calculations made by the CEC with

regard to the production of iron ore and manganese ore without or in excess

of the EC and/or the mining plan.  As already mentioned above, the figures

were  not  disputed  (except  by  JSPL  and  SMPL).  Therefore,  only  the

application of the figures requires consideration and so we do not need to

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 79 of 114

examine each individual case.  However to understand and appreciate the

manner in which the CEC has arrived at its figures, we may state that this

has been specifically mentioned by the CEC in its report.  The basis of the

calculations is as follows:

“(a) the production during the year 1993-94 has been considered as the permissible production during each year till the mining lease did not have the environmental clearance;

(b) the  permissible  production  for  the  year  in  which  the environmental clearance was obtained for the first time has been considered on pro rata basis of (a) the prescribed annual production and (b) the date of the grant of the environmental clearance.  For  this  purpose  the  environmental  clearance granted  on  or  before  15th of  a  month  has  been considered valid for the entire month. Where the environmental clearance has been granted after 15th of a month it has been considered valid  from  the  subsequent  month.  For  example  if  the environmental clearance for a mining lease has been granted say on 10th October, 2008 for an annual production of say 12 lakh MT then in that case the permissible production for the mining lease for the year 2008-09 would be taken as 6 lakh MT (12x6/12 lakh MT) and 12 lakh MT per annum in the subsequent year; and  

(c) wherever a mining lease having environmental clearance has been  granted  revised  environmental  clearance  for  a  higher production  the  permissible  annual  production  for  the  year, during which the revised environmental  clearance has been granted,  has  been  considered  on  pro  rata  basis  of  the quantities  prescribed in  the  earlier  environmental  clearance and the revised environmental clearance.  For example if the mining lease was having environmental clearance for annual production of 12 lakh MT and say on 28th September, 2009 it has been granted revised environmental clearance for annual production  of  say  24  lakh  MT  then  in  that  case  the permissible production for the year 2009-10 would be taken as  18  lakh  MT  (12x6/12+24x6/12)  and  24  lakh  MT  per annum in subsequent years.”

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 80 of 114

155.  A submission made by the mining lease holders was that the maximum

production in any year up to 1993-94 should be considered as the base for

making the calculations.  Such a contention was also urged before the CEC

and was rejected.  We have examined this contention independently and are

of the view that the base year of 1993-94 is most appropriate - we have

already given our reasons for this. Some lessees might lose in the process

while some of them might benefit but that cannot be avoided.  In any event,

each mining lease holder is being given the benefit of calculations only from

2000-01 and is not being ‘penalized’ for the period prior thereto.  We think

the mining lease holders should be grateful for this since it was submitted by

learned counsel for the petitioners and the learned  Amicus that the penalty

should be levied from the date of EIA 1994. In our opinion, the cut-off from

2000-2001 (without  interest)  is  undoubtedly  reasonable  and there  can be

hardly be any grievance in this regard.  The mining lease holders cannot

have their cake and eat it too, along with the icing on top.

156.   Since the recommendation made by the CEC in this  regard is  not

totally  unreasonable,  we accept  that  the compensation  should be payable

from 2000-2001 onwards at 100% of the price of the mineral, as rationalized

by the CEC. W.P. (C) Nos. 114/2014 etc.                                                                                            Page 81 of 114

Violation of the Forest (Conservation) Act, 1980  

157.   Before  dealing  with  the  violations  of  Section  2  of  the  Forest

(Conservation) Act, 1980  (for short ‘the FCA’), it is necessary to give a brief

background.

158.   The  FCA  came  into  operation  initially  through  the  Forest

(Conservation) Ordinance, 1980 with effect from 25th October, 1980.  The

said Ordinance was repealed and subsequently the FCA came into effect on

25th December, 1980.

159.   Section 2 of  the  FCA provides that  no State  Government  or  other

authority  shall  make,  except  with  the  prior  approval  of  the  Central

Government,  any  order  directing,  inter  alia,  that  any  forest  land  or  any

portion thereof may be used for non-forest purposes.

160.   The  interpretation  of  Section  2  of  the  FCA  first  came  up  for

consideration in State of Bihar v. Banshi Ram Modi.12  In that case, Banshi

Ram  Modi  was  granted  a  mining  lease  for  mining  and  winning  mica.

During  the  course  of  mining  operations,  feldspar  and  quartz  were

discovered.  Modi then applied to the Central Government to include these

minerals in the lease.  The State Government agreed to do so but did not

12 (1985) 3 SCC 643

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obtain the previous approval of the Central Government for the inclusion of

the two minerals in the original lease.

161.  The Central Government took the view that since its previous approval

had not been obtained for  inclusion of feldspar and quartz in the mining

lease, Modi could not be permitted to mine these two minerals.  This led

Modi  to  approach  the  High  Court  with  the  contention  that  he  was  not

breaking up or clearing any forest land other than the land on which mining

operations were already being carried on.  The High Court allowed the writ

petition but feeling aggrieved, the State of Bihar preferred an appeal in this

Court.   

162.  The question before this Court was a narrow one, namely, whether

prior approval of the Central Government is necessary in respect of a mining

lease, granted for winning a certain mineral prior to the coming into force of

the FCA, if the lessee applies to the State Government after the FCA came

into force for permission to win and carry any new mineral from the broken

up area?

163.  While answering this question in the negative, it was held that after the

commencement of the FCA no fresh breaking up of forest land or no fresh

clearing of  the  forest  on  any  such  land could  be  permitted  by the  State

Government  or  any  authority  without  the  approval  of  the  Central

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 83 of 114

Government.   However, in respect of broken up land, it was held that if the

State Government permits the lessee to remove any discovered mineral, it

cannot  be  said  that  there  has  been a  violation  of  Section  2  of  the  FCA

particularly since there is no breaking up of any fresh forest land.

164.  Subsequently in Ambica Quarry Works v. State of Gujarat and Ors13

when the lease of  the mining holder came up for  renewal,  the FCA had

already come into force. Since the forest department of the State of Gujarat

refused to give a no objection certificate, the application for renewal of the

lease was rejected.  The question that arose for consideration was whether,

after coming into force of the FCA, the mining lease holder was entitled to

renewal of the mining lease.  While answering the question in the negative

this Court held that the renewal of a lease cannot be claimed as a matter of

right.  The primary purpose of the FCA was to prevent deforestation and

ecological  imbalance as a result  of deforestation.   Therefore, the primary

duty under the FCA was to the community and the obligation to society must

predominate  over  the obligation to the individuals.   While  distinguishing

Banshi Ram Modi this Court held that renewal of the lease would lead to

further  deforestation  or  at  least  it  would  not  help  in  reclaiming the  area

where deforestation had already taken place.  The primary purpose of the

13 (1987) 1 SCC 213

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FCA is to prevent further deforestation and any interpretation must sub-serve

that purpose and implement the FCA.  Under the circumstances, it was held,

considering the scheme of the FCA that refusal to renew the lease without

prior approval of the Central Government was not unjustified.

165.  This view was reiterated in Rural Litigation and Entitlement Kendra

v. State of U.P.14   It was held that the FCA does not permit mining in a

forest area.  Reiterating the view expressed in Ambica Quarry Works, it was

observed  that  compliance  of  Section  2  of  the  FCA  is  necessary  as  a

condition precedent even for the renewal of a mining lease.  This Court went

so far as to hold that if any decree or order has already been obtained by any

of  the  mining lease holders,  from any Court  relating to  renewal  of  their

lease,  the  same  shall  stand  vacated  and  similarly,  any  appeal  or  other

proceeding taken to obtain a renewal or against any order or decree granting

renewal shall also become non est.  

166.  The definition of the word ‘forest’ for the purposes of the FCA came

up  for  consideration  in  T.N.  Godavarman  v.  Union  of  India.15  In  its

decision of 12th December, 1996 this Court observed that during the course

of hearing it appeared that there is a misconception about the true scope of

14 (1989) Supp. (1)  SCC 504

15 (1997) 2 SCC 267

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 85 of 114

the FCA and the meaning of the word ‘forest’ used therein.  Consequently,

there is also a misconception about the need for prior approval of the Central

Government  as  mandated  by Section  2 of  the  FCA in respect  of  certain

activities in a forest area, which activities are more often of a commercial

nature.

167.  In this context, it was held that ‘forest’ must be understood according

to  its  dictionary  meaning  and  it  would  cover  all  statutorily  recognized

forests, whether designated, reserved, protected or otherwise.  It was further

held that ‘forest’ would also include any area recorded as a forest  in the

government records irrespective of the ownership.  With this in mind, this

Court directed that prior approval of the Central Government is required for

any non-forest activity within the area of any ‘forest’.  In accordance with

Section 2 of the FCA all on-going activity within any forest in any State

throughout the country, without prior approval of the Central Government

must cease forthwith.  This particular  direction given by this Court is  of

immense significance.

168.  This Court further directed each State Government to constitute within

one  month  an  Expert  Committee,  inter  alia,  to  identify  areas  which  are

‘forest’ irrespective of whether they are so notified, recognized or classified

under any law and irrespective of the ownership of the land of such forest.

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 86 of 114

169.  Pursuant to the directions given by this Court,  the State of Odisha

constituted District Level Committees (for short ‘DLC’) for identification of

forest  lands.   After  the identification  process,  appropriate  affidavits  were

filed by the State of Odisha in this Court in 1997-98, the last being dated 6 th

January, 1998.

170.  In the meanwhile, in T.N. Godavarman v. Union of India16 this Court

passed  certain  directions  on  4th March,  1997  with  regard  to  what  was

categorized as mining matters.  The directions given by this Court are as

follows:

“9. We direct that –

(1) where  the  lessee  has  not  forwarded  the  particulars  for  seeking permission under the FCA, he may do so immediately;

(2) the  State  Government  shall  forward  all  complete  pending applications within a period of 2 weeks from today to the Central Government for requisite decisions;

(3) applications received (or completed) hereafter would be forwarded within two weeks of their being so made.

(4)  the Central Government shall dispose of all such applications within six weeks of their being received.  Where the grant of final clearance is  delayed,  the  Central  Government  may  consider  the  grant  of working permissions as per existing practice.”  

171.  It was also made clear that the order passed by this Court including the

earlier order dated 12th December, 1996 shall be obeyed and carried out by

16 (1997) 3 SCC 312

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 87 of 114

the  Central  Government  and the  State  Governments  notwithstanding  any

order or direction passed by a court including a High Court or Tribunal to

the contrary.

172.  From the above, it is explicit that in terms of the orders passed by this

Court, there was a complete ban on non-forest activity on forest lands with

effect  from  12th December,  1996.   The  only  issue  that  remained  was

identification  of  all  such lands  by  the  District  Level  Committees  and as

mentioned above this exercise was completed by the State of Odisha on or

about 6th January, 1998.  The lands identified by the DLC are compendiously

referred to as DLC lands.

173.   In  this  background  in  IA Nos.  2746-2748  of  2009  in  the  case  of

T.N. Godavarman the CEC was directed to submit a report which it did on

26th April, 2010.  It was recommended by the CEC that given the peculiar

circumstances prevailing in the State of Odisha, mining operations in the

entire DLC lands included in the mining leases, may be allowed to continue

on payment of the Net Present Value (NPV) subject  to the fulfillment of

other statutory requirements and rules being complied with.

174.   By  an  order  dated  7th May,  2010  this  Court  directed  that  the

recommendation of the CEC acceptable to the State Government could be

complied  with.   Consequently,  the  State  of  Odisha  appears  to  have

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 88 of 114

implemented the recommendations regarding recovery of NPV and realized

an amount of about Rs. 1750 crores as additional NPV.

175.  We have been informed that in addition to the above, the mining lease

holders have subsequently deposited an amount under the heading of penal

compensatory afforestation which was introduced through guidelines issued

by the MoEF on 3rd February, 1999.  The guidelines in this regard, were

communicated  by the  Assistant  Inspector  General  of  Forest  to  the  Chief

Secretary  of  all  the  State  and Union Territories  and  the  relevant  portion

thereof reads as follows:

 “4.3.1  Cases have come to the notice of the Central Government in which permission for diversion of forest land was accorded by the concerned  State  Government  in  anticipation  of  approval  of  the Central  Government  under  the  Act  and/or  where  work  has  been carried out in forest area without proper authority.  Such anticipatory action is neither proper not permissible under the Act which clearly provides for prior approval of the Central Government in all cases. Proposals seeking ex-post-facto approval of the Central Government under the Act are normally not entertained.  The Central Government will  not  accord  approval  under  the  Act  unless  exceptional circumstances justify condonation.   However, penal compensatory afforestation would be insisted upon by the MoEF on all such cases of condonation.

4.3.2 The penal compensatory afforestation will  be imposed over the area worked/used in violation.  However, where the entire area has  been  deforested  due  to  anticipatory  action  of  the  State Government, the penal compensatory afforestation will be imposed over the total lease area.”

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 89 of 114

176.  It  was  submitted  by  learned  counsel  for  the  lessees  that  since

additional  NPV  as  well  as  an  amount  towards  penal  compensatory

afforestation  has  been  paid  by  the  defaulting  mining  lease  holders,  the

violation of Section 2 of the FCA stands condoned or in any event the illegal

or unlawful mining in forest lands stands regularized.

177. The CEC did not accept this submission made on behalf of the mining

lease holders on the ground that no retrospective forest clearance has been

granted and even otherwise there is no provision to condone or regularize

the violation of Section 2 of the FCA.

178. We are of opinion that the view expressed by the CEC in this regard is

partially correct. Given the fact that the defaulting mining lease holders have

been  asked  to  pay  and have  paid  additional  NPV as  well  as  an  amount

towards penal compensatory afforestation, it must be assumed the violation

of the FCA has been condoned to a limited extent, more particularly since in

its order dated 7th May, 2010 this Court permitted the State of Odisha to

accept  such  recommendations  of  the  CEC made  in  the  report  dated  26th

April, 2010 as are acceptable to it.  The relevant recommendations made by

the CEC read as follows:

“(c)   No forest land can be leased/assigned without first obtaining the approval under the FC Act.  Therefore, the forest area approved under  the  FC Act  should  not  be  lesser  than  the  total  forest  area included in the mining leases approved under the MMDR Act, 1957.

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 90 of 114

Both necessarily have to be the same.   In view of the above, this Hon’ble  Court  while  permitting  grant  of  Temporary  Working Permission to the mines in Orissa and Goa has made it one of the pre-conditions that the NPV will be paid for the entire forest area included in the mining leases.  Similarly, all the mining lease holders in Orissa should be directed to pay the NPV for the entire forest area, included in the mining leases;

(d) In Orissa, substantial areas included in the mining leases as non  forest  land have  subsequently  been identified  as  DLC forest (deemed  forest/forest  like  areas)  by  the  Expert  Committee constituted  by  the  State  Government  pursuant  to  this  Hon’ble Court’s order dated 12.12.1996.  While processing and/or approving the proposals under the FC Act in many cases such areas have been treated as non-forest land.  It is recommended that (i) the NPV for the entire DLC area included in the mining lease, after deducting the NPV  already  paid,  should  be  deposited  by  the  concerned  lease holder  and (ii)  the  mining operations  in  the  unbroken  DLC land (virgin land) should be permissible only if the permission under the FC Act has been obtained/is obtained for such area.  Keeping in view the peculiar circumstances as was existing in Orissa and subject to the above, the mining operations in the broken DLC land may be allowed to be continued provided the other statutory requirements and Rules are otherwise being complied with.”

179.  This still leaves open the question of violation of the order passed by

this Court on 12th December, 1996 followed by the order dated 4th March,

1997 namely that mining must cease forthwith in forest areas.  In regard to

this violation, the only benefit (at best) that can be granted to the mining

lease holders that we are concerned with, is till 6th January, 1998 when the

affidavit  was  filed  in  this  Court  in  I.A.Nos.  2746-2748 of  2009 in  T.N.

Godavarman.  With effect  from 7th January, 1998 any mining activity in

forest and DLC lands would clearly be completely illegal and unauthorized

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 91 of 114

and the benefit that the mining lease holders have derived from this illegal

mining would be subject to Section 21(5) of the MMDR Act.  Therefore, the

price of the iron ore and manganese ore mined by the mining lease holders

from 7th January, 1998 is payable until forest clearance under Section 2 of

the FC Act is obtained by the mining lease holders.   

180.  The report of the CEC dated 16th October, 2014 deals with 51 mining

leases.  It has been recorded by the CEC that of them 15 mining leases have

been found not involved in undertaking mining operations in violation of the

FCA.  There are 16 mining leases that have violated the provisions of the

FCA between 25th October, 1980 and 1999-2000 and the State Government

in some of the cases has already issued a show cause notice to the mining

lease holders.  It is further stated that most of the violations pertain to the

period prior to 12th December, 1996.  The CEC has not made any particular

recommendation in regard to these 16 mining leases nor do we, except to

direct the State Government to promptly take a decision on the show cause

notice preferably within a period of four months and in any case before 31st

December, 2017.

181.  The CEC has also dealt with 18 others mining lease holders (other than

M/s. Essel Mining and Industries Ltd. relating to the Kasia Iron Ore Mines

and Jilling-Langlotta Iron & Manganese Ore Mines).  With regard to these

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 92 of 114

18 mining lease holders, the view taken by us above would hold good and

clearly they are liable to compensate the State for the entire price of the iron

ore and manganese ore illegally mined with effect from 7 th January, 1998

until the forest clearance was obtained by the concerned mining lease holder.

182.  We have fixed 7th January, 1998 as the cut-off date despite the orders

dated 12th December, 1996 and 4th March, 1997 only for the reason that it is

possible that some mining lease holders (we do not know how many) were

not  aware  that  they  were  inadvertently  conducting  mining  operations  on

DLC lands which were identified by the State of Odisha as forest lands on

the  directions  of  this  Court.   For  the  purposes  of  Section  21(5)  of  the

MMDR Act, they are entitled to the benefit of doubt and along with them,

the other mining lease holders before us.

The CEC in this regard has observed as follows:

“It will be seen that in the above cases the mining operations have been done in the forest land in violation of the Forest (Conservation) Act, 1980 and consequently also in violation of this Hon’ble Court order  dated  12.12.1996.   The  CEC recommends  that  70% of  the notional  value  of  the  iron  ore  and  manganese  produced  by  the lessees  by  undertaking  mining  operations  in  the  forest  land  in violation of the Forest (Conservation) Act, 1980 may be directed to be  recovered  from the  respective  lessees.   Wherever  the  mineral production is both from the forest land as well as non-forest land then in  such cases  the  notional  value of  the  production  from the forest land may be calculated on pro rata basis of the extent of the forest land and non-forest land involved.  The notional value of the mineral,  time  limit  for  payment  of  the  compensation,  use  of  the amount received as compensation and other conditions as decided by this Hon’ble Court in respect of the production without/in excess of

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 93 of 114

the  environmental  clearance  may  be  directed  to  be  followed  on pari-passu basis.”

183.  For the reasons that we have already expressed above, we are not in

agreement with the CEC that only a part of the notional value (in this case

70%)  of  the  iron  ore  and  manganese  ore  produced  by  the  mining  lease

holders should be recovered.  We are of the view that Section 21(5) of the

MMDR Act should be given full effect and so we reiterate that the recovery

should be to the extent of 100%.   

184.  There may be some overlap in the period when mining operations were

conducted by the mining lease holders without an EC and/or an FC.  We

make it clear that mineral extracted either without an EC or without an FC or

without both would attract the provisions of Section 21(5) of the MMDR Act

and 100% of the price of the illegally or unlawfully mined mineral must be

compensated by the mining lease holder.  To the extent of the overlap or the

common period, obviously only one set of compensation is payable by the

mining lease holder to the State of Odisha. We order accordingly. However,

we  make  it  clear  that  whatever  payment  has  already  been  made  by  the

mining lease holders towards NPV, additional NPV or penal compensatory

afforestation is neither adjustable nor refundable since that falls in a different

category altogether. W.P. (C) Nos. 114/2014 etc.                                                                                            Page 94 of 114

185.  We may note that this Court has held in T.N. Godavarman v. Union of

India17 that  a  violation  of  the  FCA is  condonable  on  payment  of  penal

compensatory  afforestation  charges.  This  obviously  would  not  apply  to

illegal or unlawful mining under Section 21(5) of the MMDR Act, but we

make it clear that the mining lease holders would be entitled to the benefit of

any Temporary Working Permission granted.

Conclusions on the issues of mining without an EC or FC or both

186.  To avoid any misunderstanding, confusion or ambiguity, we make the

following very clear:

(1) A mining  project  that  has  commenced  prior  to  27th January,

1994  and  has  obtained  a  No  Objection  Certificate  from the

SPCB prior  to  that  date  is  permitted  to  continue  its  mining

operations  without  obtaining  an  EC  from  the  Impact

Assessment Agency.  However, this is subject to any expansion

(including  an  increase  in  the  lease  area)  or  modernization

activity  after  27th January,  1994  which  would  result  in  an

increase  in  the  pollution  load.   In  that  event,  a  prior  EC is

required.   However,  if  the  pollution  load  is  not  expected  to

17 (2011) 15 SCC 658 and (2011) 15 SCC 681

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 95 of 114

increase despite the proposed expansion (including an increase

in the lease area) or modernization activity, a certificate to this

effect is absolutely necessary from the SPCB, which would be

reviewed by the Impact Assessment Agency.

(2) The  renewal  of  a  mining  lease  after  27th January, 1994  will

require an EC even if there is no expansion or modernization

activity or any increase in the pollution load.

(3) For  considering  the  pollution  load  the  base  year  would  be

1993-94, which is to say that if the annual production after 27 th

January,  1994  exceeds  the  annual  production  of  1993-94,  it

would be treated as an expansion requiring an EC.   

(4) There is no doubt that  a new mining project  after  27th

January, 1994 would require a prior EC.

(5) Any iron ore or manganese ore extracted contrary to EIA

1994 or EIA 2006 would constitute illegal or unlawful mining

(as understood and interpreted by us) and compensation at 100%

of the price of the mineral should be recovered from 2000-2001

onwards  in  terms of  Section 21(5)  of  the MMDR Act,  if  the

extracted mineral  has been disposed of.  In addition, any rent,

royalty  or  tax  for  the  period  that  such  mining  activity  was

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 96 of 114

carried out outside the mining lease area should be recovered.

(6) With effect from 14th September, 2006 all mining projects

having a lease area of 5 hectares or more are required to have an

EC.  The extraction of any mineral in such a case without an EC

would  amount  to  illegal  or  unlawful  mining  attracting  the

provisions of Section 21(5) of the MMDR Act.

(7) For a mining lease of iron ore or manganese ore of less

than 5 hectares area, the provisions of EIA 1994 will continue to

apply subject to EIA 2006.   

(8) Any mining activity  carried  on after  7th January, 1998

without an FC amounts to illegal or unlawful mining in terms of

the provisions of Section 21(5) of MMDR Act attracting 100%

recovery of the price of the extracted mineral that is disposed of.

(9) In the event of any overlap, that is, illegal or unlawful

mining without an FC or without an EC or without both would

attract  only 100% compensation and not 200% compensation.

In other words, only one set of compensation would be payable

by the mining lease holder.

(10) No mining lease holder will be entitled to the benefit of

any payments made towards NPV or additional NPV or penal

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 97 of 114

compensatory afforestation.   

Violation of Section 6 of the MMDR Act

187. We have examined the report of the CEC with regard to the alleged

violation  of  Section 6  of  the  MMDR Act  and find  that  there  have  been

several amendments to Section 6 relating to the maximum area for which a

mining lease may be granted to a person.  The following is the result of the

amendments:

1. From 1.6.1958 to 11.9.1972 - maximum lease area 10 sq. miles. 2. From 12.9.1972 to 9.2.1987 - maximum lease area 10 sq. km or

1000 hectares in any one State.

3. From 10.2.1987 to 17.12.1999 – maximum lease area 10 sq.km or 1000 hectares in any part of the country.

4. From 18.12.1999 till date – maximum lease area 10 sq.km or 1000 hectares in one State.

188.  While the word ‘person’ has not been defined in the MMDR Act, a

reading of Section 5 thereof indicates that the State Government shall not

grant a mining lease to any person unless such person is an Indian national

or a company as defined in the Companies Act, 1956 and subsequently in the

Companies Act of 2013. 189.  Sub-section (2) of Section 6 of the MMDR Act provides that a person

acquiring by, or  in  the name of,  another  person a mining lease which is

intended for him/her shall be deemed to be acquiring it himself/herself. W.P. (C) Nos. 114/2014 etc.                                                                                            Page 98 of 114

190.  For the purposes of determining the total area that can be acquired for

mining operations, Section 6(3) of the MMDR Act provides that the area

held under a mining lease by a person as a member of  a cooperative society,

company or other corporation or a Hindu Undivided Family or a partner of a

firm shall be deducted from the area referred to so that the sum total of the

area held by such person under  a  mining lease only  as  such member  or

partner or individually may not in any case exceed the total area specified. 191.  In this background, the CEC examined the case of seven mining lease

holders.  They are: 1. Essel Mining and Industries Limited 2. Rungta Mines Limited 3. Rungta Sons Pvt. Limited 4. Bonai Industrial Company Limited 5. Feegrade & Co. Pvt. Limited 6. M/s Mangilal Rungta 7. Jindal Steel & Power Limited

192. As  far  as  Essel  Mining  and  Industries  Limited  is  concerned  we

propose to deal with this mining lease holder on another occasion since even

the CEC has placed this mining lease holder in a special category.

193.  Similarly, so far as Rungta Mines Limited, Rungta Sons Pvt. Limited

and M/s Mangilal Rungta are concerned, although the CEC has come to the

conclusion that these persons have not acquired mining leases in violation of

Section 6 of the MMDR Act, there are some critical observations made by

the Commission with regard to the ‘Rungta Group’.  Learned counsel for the W.P. (C) Nos. 114/2014 etc.                                                                                            Page 99 of 114

petitioner  submitted  that  the  view  of  the  CEC  in  this  regard  needs

reconsideration.  Since the ‘Rungta Group’ was not heard by us, we propose

to hear the above Rungta companies to ascertain,  inter alia, whether there

has been any violation of the provisions of Section 6 of the MMDR Act.

194.  As far as Jindal Steel & Power Limited is concerned, we propose to

hear this company on another occasion since the suggestion of the CEC is

that it is the benami holder of Sarda Mines Pvt. Ltd.  If it is so held to be a

benami holder of Sarda Mines Pvt. Ltd. then there is a violation of Section 6

of  the  MMDR Act.   However,  the  CEC has  refrained from making any

observations or recommendation in this regard.  Accordingly, we propose to

hear Jindal Steel & Power Limited on a later occasion on this limited issue.

195.  As far as Bonai Industrial Company Limited and Feegrade & Co. Pvt.

Limited are concerned, the CEC has concluded that they have not violated

Section 6 of the MMDR Act.  That being the position, and nothing having

been shown to the contrary, we accept the recommendation of the CEC in

this regard.

Violation of Rule 37 of the Mineral Concession Rules, 1960

196. The CEC has discussed the possible violation of Rule 37 of the MCR.

In this context, it was noted that there were several mining lease holders who

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 100 of 114

had entered into raising contracts which were actually a transfer of the lease

as postulated by Rule 37 of the MCR.

197. On this basis the State of Odisha constituted a Committee on 8th July,

2011 to carry out a study of the financial transactions between the mining

lease holders  and the  raising  contractors  to  determine whether  there  is  a

prima facie violation of Rule 37 of the MCR.

198. On an examination of the material before it the Committee concluded

that eight mining lease holders violated Rule 37 of the MCR.  These mining

lease holders are as under:

i) R.P. Sao, Guali Iron Ore Mines, Keonjhar ii) Indrani Patnaik, Unchabali Iron Ore Mines, Keonjhar iii) M/s K.J.S. Ahluwalia, Nuagaon Iron Ore Mines, Keonjhar iv) M/s  Aryan  Mining  &  Trading  Corporation  Pvt.  Ltd.,

Narayanposhi Iron Ore Mines, Sundergarh

v) M/s Mideast Integrated Steel Ltd., Roida, Sidhamatha Iron Ore Mines, Keonjhar

vi) Kavita Agrawal, Kusumdihi Manganese Mines, Sundergarh vii) Mala Roy & Others, Jalabari Iron Ore Mines, Keonjhar viii) M/s  Sharda  Mines  (P)  Ltd.,  Thakurani  Iron  Ores  Mines,

Keonjhar

199. Pursuant  to  the report  of  the Committee,  a show cause notice was

issued to  these mining lease holders  by the State  of  Odisha.   Six of  the

mining lease holders (other than M/s Aryan Mining & Trading Corporation

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 101 of 114

Pvt.  Ltd.  (for  short  Aryan)  and  Kavita  Agrawal  (Kusumdihi  Manganese

Mines) challenged the show cause notice and the decision of the Committee

by filing revision petitions under Section 30 of the MMDR Act read with

Rule 55 of the MCR before the Central Government.  The challenge to the

show cause notice was on the ground that persons who were not government

servants could not have been included in the Committee and also that the

Committee was not notified in the official gazette as required by Section

26(2) of the MMDR Act.

200. The  Central  Government  set  aside  the  order  constituting  the

Committee and the State of Odisha has challenged the orders of the Central

Government before the Orissa High Court through writ petitions.  We are

told that the writ petitions filed by the State of Odisha are pending in the

High Court.

201. As far as Aryan is concerned, we were informed that the matter was

pending with the State of Odisha and a request was made to us to permit the

State of Odisha to pass a final order on the submissions made by Aryan.  On

28th April, 2017 we had permitted the State of Odisha to pass final orders but

we are not aware whether any orders have since been passed.

202. As far as Kavita Agrawal is concerned, her lease was terminated by

the State of Odisha and the Central Government also dismissed her revision

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 102 of 114

petition on 28th April, 2014.  The said mining lease holder has since filed a

writ petition which is pending in the Orissa High Court.  

203. During  the  course  of  hearing  it  was  proposed  by  learned  counsel

appearing for some of the mining lease holders that it might be appropriate if

the raising contracts between these eight mining lease holders and the raising

contractors are given a fresh look.  This suggestion was not acceptable to

one  of  the  mining  lease  holders.   However,  we  are  of  opinion  that  the

suggestion is reasonable and it will be appropriate if in fact a fresh look is

given to the raising contracts entered into by the mining lease holders and

the raising contractors.  We are also of opinion that such an order ought to be

passed  with  the  consent  of  the  mining  lease  holders  since  any  delay  in

disposal  of  the issue would not  really  sub-serve the interests of  anybody

including the mining lease holders.   

204.   Accordingly,  for  considering  the  appointment  of  an  appropriate

Committee in respect of the eight mining lease holders mentioned above we

would like to hear learned counsel for the parties.  We make it clear that the

proposed Committee will be entitled to lift the corporate veil, the importance

of  which in  cases  such as  the  present,  has  been emphasized in  State  of

Rajasthan v. Gotan Lime Stone Khanij Udyog (P). Ltd.18

18 (2016) 4 SCC 469

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 103 of 114

Intergenerational equity

205. Mr. Prashant  Bhushan,  learned counsel  for  the petitioner  sought  to

impress upon us the need to consider intergenerational equity and if possible

to place a limit on the extent of mining in the State of Odisha by referring to

an  article  titled:  “Intergenerational  equity:  a  legal  framework  for  global

environment  change”  by  Edith  Brown Weiss.  He  laid  emphasis  on  three

principles that form the basis of intergenerational equity.   

206.  The first principle relied on is called the principle of ‘conservation of

options’.   This  requires  each  generation  to  conserve  the  diversity  of  the

natural and cultural resource base in such a manner that the options available

to future generations are not restricted. It was submitted that the extent of

mining activities being carried on in Odisha indicate that the entire iron ore

will  perhaps  be  fully  extracted  within  a  period  of  30  years  and  nothing

would be available for future generations.  Therefore some sort of a limit

would have to be placed on the mining operations.

207. The second principle  relied  on is  the principle  of  ‘conservation  of

quality’. This was with reference to the submission that future generations

should not be subjected to a quality of the planet worse than what it is today.

In other words, future generations are also entitled to quality enjoyment of

the diversity in the natural and cultural resource base.

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 104 of 114

208. The third principle relied upon was the principle of ‘conservation of

access’ which is to say that  future generations have an equitable right  to

access the diversity of the natural and cultural resource base as is available

to the present generation.

209. There  is  no  doubt  considerable  substance  in  the  submission

particularly if this is considered in the light of intergenerational rights and

obligations which have been dealt with in the said article.  However, it is

really not for this Court to lay down limits on the extent of mining activities

that should be permitted by the State of Odisha or by the Union of India.

Nevertheless, this is an aspect that needs serious consideration by the policy

and decision makers in our country in the governance structure.  At present,

keeping  in  mind the  indiscriminate  mining operations  in  Odisha,  it  does

appear that there is no effective check on mining operations nor is there any

effective mining policy. The National Mineral Policy, 2008 (effective from

March 2008) seems to be only on paper and is not being enforced perhaps

due to  the  involvement  of  very  powerful  vested  interests  or  a  failure  of

nerve.  We are of opinion that the National Mineral Policy, 2008 is almost a

decade old and a variety of changes have taken place since then, including

(unfortunately)  the  advent  of  rapacious  mining  in  several  parts  of  the

country.  Therefore,  it  is  high  time  that  the  Union  of  India  revisits  the

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 105 of 114

National Mineral Policy, 2008 and announces a fresh and more effective,

meaningful and implementable policy within the next few months and in any

event before 31st December, 2017.  We are constrained to pass this direction

in view of the facts disclosed in these petitions and in judgments delivered

by this Court with regard to mining in Goa and Karnataka.

Inquiry by the Central Bureau of Investigation

210. It  was  emphasized  by  Shri  Prashant  Bhushan  that  because  of  the

rampant illegal or unlawful mining being carried out in Odisha, there should

be an enquiry by the Central Bureau of Investigation (for short ‘the CBI’) to

ascertain and determine the persons involved either in turning a Nelson’s eye

to rampant illegal or unlawful mining or being conspirators in the activity

and the extent of the illegal or unlawful mining.  It was submitted that the

Justice  Shah  Commission  had  very  strongly  recommended  an  inquiry

conducted by the CBI and criminal elements being brought to book for the

despoliation of the land.

211. For the present, we do not propose to direct an investigation or inquiry

by the CBI for  the reason that  what is  of immediate  concern is to learn

lessons from the past so that rapacious mining operations are not repeated in

any  other  part  of  the  country.   This  can  be  achieved  through  the

identification of lapses and finding solutions to the problems that are faced.

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 106 of 114

Undoubtedly, there have been very serious lapses that have enabled large

scale  mining  activities  to  be  carried  out  without  forest  clearance  or

environment clearance and eventually the persons responsible for this will

need to be booked but as mentioned above, the violation of the laws and

policy need to be prevented in other parts of the country. The rule of law

needs  to  be  established.  We are  therefore  of  the  view  that  it  would  be

appropriate if an Expert Committee is set up under the guidance of a retired

judge of this Court to identify the lapses that have occurred over the years

enabling rampant  illegal  or  unlawful  mining in Odisha and measures  to

prevent this from happening in other parts of the country.   

212.  There is no doubt that the recommendations of the Commission can

form a platform for the study but it is also necessary to use technology for

maintenance  of  registers,  records  and  data  through  computers,  satellite

imagery, videography and other technology tools so that the natural wealth

of our country is not rapaciously exploited for the benefit of a few to the

detriment of a large number, many of whom are tribals inhabiting the land

for several generations.

Utilization of funds by the Special Purpose Vehicle

213. In  I.A.  Nos.2746-2748 of   2009 filed  by  Rabi  Das,  an  order  was

passed on 27th January, 2014 relating to the preparation of a scheme by the

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CEC for setting up a Special Purpose Vehicle (SPV) for tribal welfare and

area development works.  The relevant extract of the order reads thus:

"50% of the additional amounts of Net Present Value (NPV) recovered by the State of Odisha from the mining lessees will be used by the State of  Odisha  through a  Special  Purpose Vehicle  (SPV) for  undertaking specific  tribal  welfare  and  area  development  works  so  as  to  ensure inclusive growth of the mineral bearing areas. The State of Odisha will accordingly file within four weeks from today, a comprehensive plan for the development of tribals out of the aforesaid funds, taking into consideration their requirements of health, education, communication, recreation, livelihood and cultural lifestyle as indicated in this Court’s judgment  in  T.N.  Godavaraman Thirumulpad v. Union of  India & Others (2008) 2 SCC 222.”

214.   Subsequently  on  28th April,  2014  this  Court  accepted  the  scheme

prepared  by  the  Government  of  Odisha  in  consultation  with  the  Central

Empowered Committee.  The scheme was captioned “Setting up of Special

Purpose  Vehicle  (SPV)  for  undertaking  specific  tribal  welfare  and  area

development works so as to ensure inclusive growth of mineral bearing areas

in the State of Odisha”. This Court then passed the following order on 28 th

April, 2014:

“Pursuant to orders passed by this Court on 7th [27 th] January, 2014, the  Government  of  Odisha  in  consultation  with  the  Central Empowered Committee has prepared a Scheme captioned “Setting up of Special Purpose Vehicle (SPV) for undertaking specific tribal welfare  and  area  development  works  so  as  to  ensure  inclusive growth of mineral bearing areas in the State of Odisha.

The Central Empowered Committee has submitted a Report dated 9th April, 2014 and has recommended that the Scheme prepared by the Government of Odisha may be approved by this Court and the ad

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 108 of 114

hoc CAMPA may be directed to transfer to the SPV 50 per cent of the additional amount of the NPV recovered from the mining lease holders by the State of Odisha for  undertaking tribal  welfare and development works.

We have perused the Scheme prepared by the State Government of Odisha  and  the  recommendation  of  the  Central  Empowered Committee and we approve the Scheme and direct as hoc CAMPA to transfer to the SPV 50 per cent of the additional amount of the NPV within a month for undertaking tribal welfare development works.

The Interlocutory applications be listed in the month of July, 2014.”

215.  Some of the salient features of the Scheme are as follows:

5 The SPV will undertake specific tribal welfare and area development works so as to ensure inclusive growth of the mineral bearing areas. These will include works/projects related to livelihood intervention, health, water supply and sanitation, education, special programmes for  development  of  women  and  children,  entrepreneurial development  of  local  people,  communication  and  infrastructure projects  and  agro  silvi-horticultural  based  livelihood  projects through identified agencies/Government Departments.  While taking up  such  projects/works  a  bottom  up  planning  and  participatory approach will be followed.

9 The general superintendence of the affairs will be vested in its Board of Directors including (a) to receive grants/funds and have custody of the same, (b) to approve Annual Budget Estimates and sanction the expenditure within the limits of the Budget, (c) to enter into any agreement for  and on behalf of the SPV; (d) institute and defend legal proceedings (e) to consider and approve the Annual Report, audit report, annual accounts and the financial estimates of the SPV, (f) to prescribe procedure to be followed for implementation of the projects/works and for maintenance of accounts and (g) to undertake any  other  ancillary  activities/works  for  the  furtherance  of  the objective of the SPV.

a  The funds made available to the SPV will be utilized only for the purpose for which the SPV has been set up and will not be used for any other purpose or transferred to any other authority; and  

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b  The composition of the Board of Directors of the SPV, as provided in  the  present  scheme,  will  be  modified  only  after  obtaining permission from the Hon’ble Supreme Court.

10. The accounts of the SPV will be internally audited annually by the Chartered Accountant firms empanelled with the CAG/Principal Accountant General, Odisha.  The audit of the accounts of the SPV, receipts as well as expenditure, will be done annually by the office of the Principal Accountant General, Odisha.

11. The State Government has, earlier, registered a Society, namely, Society  for  Inclusive  Development  of  Mineral  Bearing  Areas  of Odisha,  which  has  been  registered  vide  registration  number 23354/74 of 2011-12 under the Societies Registration Act, 1860 to act as SPV for the purpose.  It is now proposed to wind up the said Society  and  to  replace  it  with  ‘Odisha  Mineral  Bearing  Areas Development  Corporation’  to  be  set  up  under  section  25  of  the Companies Act.

216.   It  appears  that  the  scheme  has  been  implemented  with  the  Chief

Secretary of Odisha as the ex-officio Chairman of the SPV.  There are several

other members and directors of the SPV.  There is no further information

available with this Court with regard to the implementation of the scheme.   

217.   During  the  course  of  hearing,  some  of  the  mining  lease  holders

represented by Shri Gopal Subramanium, Senior Advocate offered to deposit

and in fact did deposit an amount of Rs.237.05 crores for utilization by the

SPV  for  carrying  out  welfare  works  and  activities  in  the  districts  of

Keonjhar, Sundergarh and Mayurbhanj in Odisha.  The deposit was made by

way of a cheque on 6th April, 2017 and was without prejudice to the rights

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and contentions  of  lessees.   In  terms  of  our  directions,  the  Registry  has

encashed the cheque and kept the amount in a short term fixed deposit.  We

have mentioned this only to point out that there are huge amounts available

with the Special Purpose Vehicle for tribal welfare and area development

works and we have absolutely no idea about the utilization of the funds or

whether they are in fact being used for tribal welfare and area development

works.  We also expect that as a result  of the orders that we are passing

today, very  large  amounts  will  again  be  made  available  to  the  State  of

Odisha.   These  amounts  should  also  be  kept  with  the  Special  Purpose

Vehicle.

218.  To ensure that the amounts are utilized for the benefit of tribals in the

affected districts and for area development works, we would like the Chief

Secretary of Odisha to file  an affidavit  stating the work done as well  as

providing the audited accounts of the receipt and expenditure of the SPV

from its inception.   

Conclusion

219.  In view of findings above, we dispose of the writ petitions to the extent

of the directions that we have already given.   

W.P. (C) Nos. 114/2014 etc.                                                                                            Page 111 of 114

220.  I.A. Nos. 45 (filed by Zenith Mining) and 47 (filed by Kavita Agrawal)

are dismissed since their lease has not been extended or has been determined

and they do not have any environment clearance or forest clearance.  

221.  I.A. No. 66 (filed by J.N. Pattnaik) is also dismissed since there is no

forest clearance available.

222.  We have been informed that S.A. Karim (I.A. No.9) actually had a

working lease and has wrongly been included as a non-operational lease.

Accordingly, I.A. No. 9 (filed by S.A. Karim) is also dismissed but as being

infructuous.  However, it is made clear that the State Government should

ensure that the lessee S.A. Karim in fact has valid statutory clearances.

223.  Pending show cause notices issued by the State Government should be

decided by 31st December, 2017 (if not already decided) after hearing the

concerned noticees.

224.  We would like to hear Jindal Steel and Power Limited, Sarda Mines

Private  Limited,  Rungta  Group  of  Companies  and  Essel  Mining  and

Industries Limited on the applications filed by them.  For this purpose list

the matter again after two weeks so that a convenient date of hearing can be

fixed.

225.   The amounts  determined as  due  from all  the  mining lease  holders

should be deposited by them on or before 31st December, 2017.  Subject to

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and only after compliance with statutory requirements and full payment of

compensation  and other  dues,  the  mining lease  holders  can  re-start  their

mining operations.   

226.  We would also like to hear the eight concerned mining lease holders on

the  question  of appointing  an  appropriate  Committee  in  respect  of  the

applicability of Rule 37 of the Mineral Concession Rules to them.

227.  We would also like to hear learned counsel for all  the parties with

regard to setting up of an Expert Committee presided over by a retired judge

of this Court to identify the lapses that have occurred over the years that

have  enabled  rampant  illegal  and  unlawful  mining  in  Odisha  and  to

recommend  preventive  measures  not  only  to  the  State  of  Odisha  but

generally  to all  other  States  where mining activities  are  proceeding on a

large  scale.   For  the  present,  we  pass  no  direction  with  regard  to  any

investigation by the CBI.

228.  We direct  the Union of  India to  have a fresh look at  the National

Mineral Policy, 2008 which is almost a decade old, particularly with regard

to conservation and mineral development. The exercise should be completed

by 31st December, 2017.

229.  The Chief Secretary of Odisha should file an affidavit as indicated by

us within a period of six weeks and in any case on or before 30 th September,

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2017.  The  Registry  will  list  these  petitions  along  with  the  affidavit

immediately after its receipt for our consideration.

230.  All other pending I.A.s are disposed of in terms of our orders.

         ....…..………………….J              (Madan B. Lokur)

       ……..………………….J New Delhi;    (Deepak Gupta) August 2,   2017

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