8th Day at the Supreme Court of India with the Goa mining case
The mining industry’s lawyers were on their feet the entire day. KK Venugopal, who had not concluded yesterday on behalf of the Salgaoncar Bros., could not attend this morning. Chander Uday Singh took over from where KKV had left off. Chander Uday Singh’s effort to represent the Goa Mining Association was not agreed to by the Court which wished to hear first all those mining lease owners who were in the category of “affected parties” and who had filed Intervenor Applications in 435, or filed challenges to the Shah Commission (which the Supreme Court had transferred from the Bombay High Court on 19th September). After Chander Uday Singh, Sundaram took the wicket on behalf of Chowgule and Bandekar. He ended his innings at lunch. After lunch, Rafiq Dada took charge for Fomento and was still batting when the Court adjourned for the day.
He will resume next on 22nd October, after the Dussehra vacations.
There are still some mining companies and the GMA left to be heard after that. Petitioner’s counsel, Prashant Bhushan, will rejoin before the Court will terminate the hearings. In between, there is still the issue of the buffer zone for all the six wildlife sanctuaries and national park. We do not know whether the Court will rule on that issue, considering hearings in respect of buffer zones have been taking place sporadically in other cases. However, the Court has tagged along with WP 435, WP 460/2004, also filed by the Goa Foundation and IA 1000 (Jambugarh Wildlife Sanctuary matter) where the ban order on activity in 1 km zone of all wildlife sanctuaries was passed on 4.8.2006.
So what did Chander Uday Singh try to plead on behalf of KKV and the Salgaoncar Bros? He went to a map enclosed with their application which showed a road between the Bhagwan Mahaveer Wildlife sanctuary and the mining leases of the Salgaoncars. He said this road, which branched off to Tambdi Surla, went further down and joined the NH. He therefore pleaded that in such cases, if the buffer zone was to be specific to that sanctuary, the road — and not 1 km — should be the limit of the buffer zone.
Justice Patnaik interrupted at this stage. He emphasized two things which he said should be distinguished from each other. First, irrespective of the State Government, the MOEF could issue a notification for a buffer zone under the various sections of the EPA and EPA rules. Once such a notification was issued, all activities disallowed by the notification would cease. This would have implications for fundamental rights under Art.19 (i) (g). MOEF would therefore issue a draft notification, invite objections etc., before a final notification.
The second aspect involved the Court’s power and jurisdiction. Irrespective of where the minerals were (on private or state land), State of Goa is the owner of the minerals. Art. 21 obligates the State to protect life and environment. Even if a central govt notification is not there, the State Govt is obligated under Art.21 to maintain life which includes environment and which includes flora and fauna. The State cannot therefore allow minerals to be exploited (since they are its property) — irrespective of any notification under EPA, 1986 — if the action of exploitation affects Art. 21 and the environment. The Court put the mining respondents on notice on this position it was going to take.
Since the discussion was in context of establishing buffer zones around wildlife sanctuaries, this Court could declare extent of buffer zones if it had to protect Article 21 and the environment. Article 21 is guaranteed by the State. “Under our Art.32 powers we can direct its enforcement by the State.” The Court found this position also affirmed in the Okla Bird Sanctuary case. Justice Nijjar said we could enforce Art. 21 as per the facts of the case of mining in Goa that have emerged before the Court. Court could therefore enforce buffer zones under its own power to enforce Art. 21.
Justice Patnaik referred to the dust pollution affecting the forest vegetation outside mining leases. He said if you live by the side of a road where there is traffic, you can have a layer of dust in your house. Common sense indicated that air pollution would affect a sanctuary’s vegetation. Animals would be eating vegetation contaminated with such pollutants. Such pollutants could travel more than a kilometre.
Counsel for the mining companies however appeared distressed that the Court might direct the extent of a buffer zone. They tried to impress on the Court that the Goa govt had already sent a one km buffer zone proposal to the MOEF. The MOEF was to notify these proposals and put them up for public consideration before finally notifying them. [From earlier reading of documents, it appears the Goa govt., as usual, has suggested a 1 km buffer zone, but with one condition relating to the mines. These will be allowed to operate for 10 years and then phased out. This means the buffer zone would not operate for 10 years. Probably this is the Goa govt’s idea of a bad joke. In court today, however, the counsel informed the Court that the “leniency” period for mines operating in 1 km buffer zones would be 5 years.They appeared to be unable to muster the courage to inform the Court that the truth was actually 10 years.]
Counsel therefore pleaded with the Court that it should wait for the MOEF to declare the buffer zone. “If the govt does its job (in issuing the notification declaring buffer zones), the Court would be relieved of the burden.” Court was unimpressed. It referred to other situations including Sterlite, where notifications were not forthcoming for years, despite Court interventions. The Court could not tell govt to issue notifications and laws where and when the Govt had the power. But if the Court found the Govt would not do so or was delaying, resulting in environmental damage, the Court could go ahead and declare the buffer to protect Art. 21 and the environment.
The Court expressed difficulty with the idea that buffer zones must be sanctuary specific. It said the buffer zone must relate to activity. For example, mining, nuclear reactors, etc., would require a different distancing than a road or habitation.
Chander Uday Singh pleaded: “Let the process of notification be completed! In a few months, you will have the actual notification before you!”
Well, it’s upto you whether you want to trust the Court or anyone else, said Justice Patnaik. Chander Uday Singh referred to Dantewada (a Maoist trouble area), and said that if mines were closed and employment was killed, people might turn to similar activity. [Earlier, he had said the Salgaoncar mines whose cause he was now pleading had been shut from 2007, since they lacked forest clearances.]
After this, Chander Uday Singh (who is an old acquaintance of mine and a very decent bloke) tried to address the Court on the IA filed by the Goa Mining Association. Court said he could speak only after all mining lessees had completed their submissions. [It is important to emphasize here that the GMA was only registered as a society some two years ago. The more established association is the Goa Mineral Ore Exporters Association. Interestingly, GMOEA has not filed an IA, since it got itself registered as a Society only this year. Despite being unregistered, GMOEA set itself up as an “Authority” and collected payments amounting to several crores illegally from mining companies ostensibly to approve or legitimise their export contracts. But it was not appearing in the present proceedings at any rate!]
Adv. C.A. Sundaram then took the stage on behalf of Chougule and Bandekars. He first tried to impress upon the Court that mining had a long history in Goa. Chougule was a very old and established name and was upset about being unfairly mixed up in illegal mining charges. They had contributed much to society over 50 years [but he would not say how much they took and put in their own pockets]. His main effort was to try and show there were no illegalities associated with the companies he represented. All that the shouting about illegalities, he said, had produced as a nice conclusion the idea that the industry needed regulation. He admitted, upon Court’s probing, that even if you are fully legal, your activity can be restricted under Art.21.
He raised 5 points as issues in the petition: 1) the buffer zone issue, already addressed by KKV; 2) the dump issue, addressed by Mukul Rohtagi; 3) the excess mining issue; 4) mining without ECs or Forest Clearances or ECs illegally granted in sanctuaries; 5) carrying capacity and the cap on production. What cap needed to be arrived at was part of regulatory action. Relevant facts necessary to arrive at the cap could be: a) decreasing ground water levels; b) effects of mining on flora and fauna and c) destruction of agricultural lands. (Intergenerational equity could come under capping.)
He said his clients did not do illegal mining. They used state of the art technology and did no damage to the environment. On the issue of dumps as encroachment, he criticised the Shah Commission who had held all dumping outside lease area as illegal. State govt, because of this finding, had issued notices to Chougule and Bandekar and others. Shah Commission never looked at the all the legal provisions connected with dumping outside leases nor examined that the land was privately owned and therefore could be used for dumping.
Sundaram said the Shah Commission had at the most done “prima facie fact finding.” Justice Patnaik agreed, saying that none of these leases had been terminated for any wrong doing, so where was the issue? However, it triggered off, in this case, the entire enquiry that is now the basis of this Court’s intervention. Sunderam repeated Rohtagi’s view that the Shah Commission might not be correct on dumping in view of statutory provisions that allowed it.
After this, Sundaram tried to defend the actions of former Forest Officer, R.A. Mazalkar, who had as Collector excluded several (55) mining leases from the Netravalli wildlife sanctuary, including Chougule’s two leases. He held there was no illegality because the officer had excluded these leases as per the provisions of the Wildlife Act.
The Collector, in that case, said Justice Patnaik, could not say no, because of the big bosses. If you argue the point further, we will go after the Collector who did nothing more than disobey the law and obey the boss. The Collector’s powers are in respect of land rights, surface rights, yes. But so far as minerals and leases are concerned, the Collector has no power!
19 ECs had been issued for leases in Netravalli sanctuary. Justice Patnaik asked, once a sanctuary is notified under section 18 of the Wildlife Act, can ECs be granted?
As far as 1 km was concerned, Sundaram said their activity could not be termed illegal, as their mining plan was approved by the IBM. In that case, said Justice Patnaik, we shall hold IBM responsible! Sundaram told the Court that he was concerned about what should be done in mining in the future. He was interested in the matter “prospectively”. The bench was sceptical and remarked that its earlier “prospective” orders (4.8.2006 and 4.12.2006) had not been implemented.
Afternoon: Rafiq Dada took charge for Fomento Industriale Irmaos. Neither he nor anyone else appeared confident of pronouncing the Portuguese sounding name. Adv. Dada, like Chander Uday Singh, is a very nice gentleman, always courteous, always unflappable. This is how lawyers should be. He tried to argue against the Shah Commission Report. The bench told him quite firmly: argue against the Shah Commission. We will quash the Shah Commission Report, based on your petitions. Then we will order the Shah Commission to carry out the investigation again, after giving you all due notice. Thereafter, you will not be allowed to challenge the Report. Till this is all achieved, the ban will remain in force. Do you want this option? We are trying to sort out this matter expeditiously.
Adv. Dada retreated after Justice Kalifulla advised him to reverse the priority of his arguments. He told him, argue Shah Commission last. So Rafiq Dada took up the issue of Section 24A of the Mineral Concession Rules, 1960, which governs renewal of leases. Suddenly, as the discussion on that progressed, things began to look very bleak for the industry. But about that, in the next post since I now need to sleep.