SC issues guidelines for iron ore mining in GOA, permits regulated mining based on precautionary principle

Like in the case curbing of Karnataka  illegal mining, SC today  issued far reaching guidelines for mining industry in Goa. The judgment is delivered by the Forest Bench of the Supreme Court headed by Justice A. K. Patnaik and  Justices Surinder Singh Nijjar  and  Fakkir Mohamed Ibrahim Kalifulla . The patterns in mining cases  judgment suggest that these  guidelines are going to be applied in the case illegal mining in many other states .

The judgment has accepted many of the recommendations Justice Shah Commission . The  Central Government appointed the Justice Shah Commission under Section 3 of the Commissions of Inquiry Act, 1952 by notification dated 22.11.2010. On the basis of findings in the report of the Justice Shah Commission on illegal mining in the State of Goa, the Goa Foundation has filed Writ Petition (C) 435 of 2012 as Public Interest Litigation praying for directions to the Union of India and the State of Goa to take steps for termination of the mining leases of lessees involved in  mining in violation of the Forest (Conservation) Act, 1980, the Mines and Minerals (Regulation and Development)Act, 1957, the Mineral Concessions Rules, 1960, the Environment (Protection) Act, 1986, the Water (Prevention & Control of Pollution) Act, 1974 and the Air (Prevention and  Control of Pollution) Act, 1981 as well as the Wild Life (Protection) Act, 1972. The Goa Foundation has prayed that a direction be issued to the respondents to prosecute all those who have committed offences under the different laws and are involved in the pilferage of State revenue through illegal mining activities in the State of Goa including the public servants who have aided and abetted the offences. The Goa Foundation has also sought for appointment of an independent authority with full powers to take control, supervise and regulate mining operations in the State of Goa and to ensure the implementation of the laws.

Different mining lessees of the State of Goa and the Goa Mining Association also had filed Writ Petitions in the Bombay High Court, Goa Bench for a declaration that the report of the Shah Commission is illegal and for quashing the findings in the report of the Justice Shah Commission and also for quashing the order dated 10.9.2012 of the Government of Goa suspending mining operations in the State of Goa and the order dated 14.9.2012 of the Ministry of Environment and Forests, Government of India, directing that the Environmental Clearances granted to the mines in the State of Goa be kept in abeyance. These Writ Petitions have been transferred to Supreme Court to be heard along with Goa Foundation Writ Petition.

What is significant in the present judgment, and the one which was not dealt with in the case of Karnataka mining issue is the concern expressed by the Court towards the cause of employees.  The Court finds that on account of suspension of mining operations in the State of Goa, the workers who were employed by the lessees have not been paid their  wages. Under Section 25C of the Industrial Disputes, Act, 1947, when a workman whose name is borne on the muster rolls of an industrial establishment and who has completed not less than one year of continuous service under an employer is laid-off, he is entitled to be paid by the employer for all the days which he is so laid-off, except for such weekly holidays as may intervene, compensation which shall be equal to 50% of the total of the basic wages and dearness allowance that would have been payable to him had he not been so laid-off. Following this principle of lay-off compensation, Court held that that workers who could not be paid wages by the lessees will have to be paid compensation at the rate of 50% of their basic wages and dearness allowance during the period of non-employment on account of suspension of mining operations.

After a detailed examination of  all aspects of the matter, the Court passed the following  declarations and directions :

" (i) the deemed mining leases of the lessees in Goa expired on 22.11.1987 and the maximum of 20 years renewal period of the deemed mining leases in Goa expired on 22.11.2007 and consequently mining by the lessees after 22.11.2007 was illegal and hence the impugned order dated 10.09.2012 of Government of Goa and the impugned order dated 14.09.2012 of the MoEF, Government of India are not liable to be quashed;

 (ii) dumping of minerals outside the leased area of the mining lessees is not permissible under the MMDR Act and the Rules made thereunder;

(iii) until the order dated 04.08.2006 of this Court is modified by this Court in I.A. No.1000 in T.N. Godavarman Thirumulpad v. Union of India & Ors., there can be no mining activities within one kilometer from the boundaries of National Parks and Sanctuaries in Goa;

(iv) by the order dated 04.12.2006 in Writ Petition (C) No.460 of 2004 (Goa Foundation v. Union of India),this Court has not prohibited mining activities within 10 kilometers distance from the boundaries of the National Parks or Wildlife Sanctuaries;

(v) it is for the State Government to decide as a matter of policy in what manner mining leases are to be granted in future but the constitutionality or legality of the decision of the State Government can be examined by the Court in exercise of its power of judicial review."

The Court directed that::

"(i) MoEF will issue the notification of eco-sensitive zones around the National Park and Wildlife  Sanctuaries of Goa after following the procedure discussed in this judgment within a period of six months from today;

(ii) the State Government will initiate action against those mining lessees who violate Rules 37 and 38 of the MC Rules;

(iii) the State Government will strictly enforce the Goa (Prevention of Illegal Mining, Storage and Transportation of Minerals) Rules, 2013;

(iv) the State Government may grant mining leases of iron ore and other ores in Goa in accordance with its policy decision and in accordance with MMDR Act and the Rules made thereunder in consonance with the constitutional provisions;

(v) until the final report is submitted by the Expert Committee, the State Government will, in the interests of sustainable development and intergenerational equity, permit a maximum annual excavation of 20 million MT from the mining leases in the State of Goa other than from dumps;

(vi) the Goa Pollution Control Board will strictly monitor the air and water pollution in the mining areas and exercise powers available to it under the 1974 Act and 1981 Act including the powers under Section 33A of the 1974 Act and Section 31A of the 1981 Act and furnish all relevant data to the Expert Committee;

(vii) the entire sale value of the e-auction of the inventorised ores will be forthwith realised and out of the total sale value, the Director of Mines and Geology, Government of Goa, under the supervision of the Monitoring Committee will make the following payments:

 (a) Average cost of excavation of iron ores to the mining lessees;

(b) 50% of the wages and dearness allowance to the workers in the muster rolls of the mining leases who have not been paid their wages during the period of suspension of mining operations;

(c) 50% of the claim towards storage charges of MPT.Out of the balance, 10% will be appropriated towards the Goan Iron Ore Permanent Fund and the remaining amount will be appropriated by the State Government as the owner of the ores;

(viii) the Monitoring Committee will submit its final report on the utilization and appropriation of the sale proceeds of the inventorised ores in the manner directed in this judgment within six months from today;

(ix) henceforth, the mining lessees of iron ore will have to pay 10% of the sale price of the iron ore sold by them to the Goan Iron Ore Permanent Fund.

(x) the State Government will within six months from today frame a comprehensive scheme with regard to the Goan Iron Ore Permanent Fund in consultation with the CEC for sustainable development and intergenerational equity and submit the same to this Court within six months from today; and

(xi) the Expert Committee will submit its report within six months from today on how the mining dumps in the State of Goa should be dealt with and will submit its final report within twelve months from today on the cap to be put on the annual excavation of iron ore in Goa"