HC BARS MINING TRANSPORT: Extracts of the Judgement

These extracts are part of the High Court’s caustic judgement quashing the State government’s approval of transportation of ore post March 15. It called out the blurring of the line between the government and the mining-dependent, and the apathy of the government to the mining affected.

BY Prithviraj K. Chavan,J.N,M Jamadar, J.

45. With this background, we come to the paragraph 149(6), which is the crux of the matter. We reproduce the paragraph again for convenience.
“The mining lease holders who have been granted the second renewal in violation of the decision and directions of this Court in Goa Foundation are given time to manage their affairs and may continue their mining operations till 15th March, 2018. However, they are directed to stop all mining operations with effect from 16th March, 2018 until fresh mining leases (not fresh renewals or other renewals) are granted and fresh environmental clearances are granted.”

46. The analysis of the above paragraph shows following facets: The direction is a consequence of a discussion. The discussion means all the observations, starting from the first word “rapacious”. Mining lease holders have been granted second renewals in violation of the directions of the Supreme Court in Goa Foundation-I. Actions of the State are contrary to the law declared by the Supreme Court under Article 141, and there is the lack of environmental clearances. This class of mining lease holders are given time to manage their affairs. They may continue mining operations till 15 March 2018. They will stop all mining operations with effect from 16 March 2018. The mining operations will resume only after fresh mining leases are granted and fresh environmental clearances are granted.

47. Both the phrases “manage their affairs” and “mining operations” have been used and they must be given their respective meaning. Manage their affairs is not a legal term, while mining operations is.

49. Further the matter does not rest at that. The crucial words are ‘arrange their affairs’. We had passed detailed interim orders on 28 March 2018 and 29 March 2018. The same central point, which is the interpretation of paragraph 149(6), was debated. Fundamentally argument of Petitioner, State and the Respondents remains the same, except with more details. Therefore, it is not for the first time that we are recording our interpretation of paragraph 149(6). We had clearly mentioned that according to us the entire exercise permitted was to arrange the affairs. We had observed thus: “In our respectful reading of the Judgment, we prima facie find that when the Apex Court mandated the leaseholders to cease all mining operations and “arrange their affairs”, means deleterious effect must end by 15 March 2018. Therefore, we are of the prima facie opinion that when the Apex Court mandated the leaseholders to arrange their affairs by 15 March 2018, it contemplated ceasing of all forms of activities relating to mining which would have an impact on the environment” In fact when we had emphasized on this term in our interim order, we expected arguments from the State on how the words ‘time to arrange their affairs’, be construed. The State has chosen to put all its emphasis on the words ‘mining operations’ as if this was the only facet of Paragraph 149(6). Same is the position by the Counsel appearing for the Respondents. The arguments are advanced as if the words ‘time to arrange their affairs’ do not exist. The State and the Respondents have steered clear of explaining the purpose of the phrase “time to arrange their affairs”. Elaborate arguments are advanced, but the only emphasis is on the words ‘mining operations’. The State and the Respondents want the sentence to read: The mining lease holders .. ,.may continue their mining operations till 15th March, 2018 by omitting the words .. are given time to manage their affairs. Why the State is deleting these words from its consideration is not explained. That these words are meaningless, is also not argued. They are simply omitted from consideration. When the purport of a direction under Article 142 of the Constitution of India to do complete justice, is being debated, how can a party put forth its interpretation by omitting the most important word. Such interpretation would be obviously incomplete and fundamentally flawed.

51. It is our respectful view that the Supreme Court was aware that when judgment was delivered on 7 February 2018 mining operations, including excavation, were going on. The Supreme Court was aware that the moment the judgment is pronounced, half way excavation activities could cease, instant the judgment is delivered. Once the Supreme Court pronounced that mining leases were granted in violation of its earlier binding decision, and there was no environmental clearance, the excavation could not in law, continue even for a second. The mining activity, including excavation, therefore had no basis in law to continue even for winding up the affairs. Therefore, the Supreme Court in the light of its earlier discussion and findings, inspite of holding continuation as illegal, exercised its power under Article 142 to permit mining operations, without which the time granted to arrange the affairs would have been of no effect.
Thus, the liberty granted to carry out mining operations till 15 March 2018 was just a component of larger indulgence given by the Supreme Court to arrange the affairs within five weeks. But this was not a charter to continue excavation as if nothing was wrong. This limited charter was given only to ensure that the mining leaseholders are able to arrange their affairs within five weeks. Though mining operations is a legal term, the context in which it was used by the Supreme Court was not the normal circumstances. It was used in an equity exercise. The State was expected to monitor the complete phasing out. The State was expected to ensure that the Respondents will manage their affairs within 5 weeks. The State should have issued a mandate that though the Supreme Court has used the words ‘mining operations’, it is only for winding up and not for full fledged mining activity, because basically such activity was illegal and is allowed only as an indulgence. Instead, the State chose to confer a complete and unfettered right on the Respondents. In our respectful reading of the judgment, and looking at the jurisprudence it invokes, we are of the respectful opinion that the Supreme Court did not permit such course of action.

52. The Respondents are commercial entities. When the Supreme Court had given them time of five weeks to manage their affairs, they had to do so. For any commercial entity who is facing a prospect of complete closure after five weeks and without knowing hope of any extension whatsoever, would first start winding down. It would take stock of its situation, settle accounts, remove the ore and transport it. If the interpretation of the State and the Respondents is accepted that full-fledged mining excavation was permitted till 15 March 2018, then where is the time left to manage affairs thereafter. The most important phrase specifically used by the Supreme Court “time to arrange their affairs” would become meaningless. Therefore, when the Supreme Court permitted mining activity, of which excavation is an only part, it was permitted only in the limited sense to wind up or wrap up the entire affairs, without this liberty even finishing the half work would have been impossible, the moment the judgment was declared.

61. The Supreme Court had expressed serious environmental concern in Goa Foundation-II. It cannot be argued that the

NOT-GREEN-GOA: Apart from the destruction above-ground, with the monsoons coming up there is a real danger that tunnels could collapse

Supreme Court was unaware of the deleterious effect transportation has in the State of Goa. […] In Goa Foundation-I, the Supreme Court has discussed the environmental impact of both, production and transportation, in detail. […] The report of the Justice Shah Commission was before the Supreme Court in both, Goa Foundation-I and Goa Foundation-II cases. These observations of the Commission regarding deleterious effect of transportation were before the Supreme Court in Goa Foundation- II. The Commission had observed in its report that the tribals/villagers are suffering adverse environmental effects of heavy transportation, their drinking water remains polluted and roads remains badly damaged/congested.
It cannot be, therefore, said that ills of transportation and its effect on the average Goan and on the coastal ecology were not the concerns. Therefore, it is incorrect to contend that transportation component of the activity was never in contemplation of the Supreme Court in Goa Foundation-II or in paragraph 149(6). According to our respectful interpretation thus, when the Supreme Court mandated five weeks time for arranging the affairs, it meant completion of transportation as well.

65. As a result of the discussion on import of paragraph 149(6) therefore, it is clear that the Supreme Court granted leave to carry out mining operations only in aid and to enable the Respondents to arrange their affairs within five weeks. When the Supreme Court meant arrange their affairs, it included transportation including loading up to the ship to be exported and all other associated activities. The interpretation placed by the State Government that the transportation was permitted post 15 March 2018 on a royalty paid ore is, thus, incorrect and is contrary to the directions in paragraph 149(6). The order passed by the Supreme Court on 4 April 2018, being under Article 142, will apply only to the Appellants in those cases before the Supreme Court and to the extent specified there in. The decision of State dated 21 March 2018, will have to be set aside. The State will have to take a decision considering the legal position that such ore in question will revert back to the State and steps will have to be taken considering the same as public property. Obviously it can be transported as a public property.

66. This brings us to the second topic, which is the safety of the mines. […] The State Government claims that it does not have necessary equipment and man power and therefore, the erstwhile lease holders should be made responsible. The Petitioner states that the mines are on hill sides. There could be mine collapse, affecting the people and property and monsoon now just more than six weeks away, and the situation is emergent. The argument on behalf of the mining companies is that they will abide by the directions on this aspect. In the affidavit filed by the State, the Chief Secretary has referred to safety aspects. It is stated that the lease holders have been directed on 12 March 2018 to abide by the directions of the Director of Mines and Geology. The directions for pumping of water were also given to the leaseholders and it is not practicable for the State to look after the safety operations. It is stated that Government of Goa has no manpower, machinery and technical experts to carry out the activities. It is stated that erstwhile lease holders who were granted right over the land can continue safety operations. The Petitioners have taken exception to keep the mining leaseholders as in-charge of safety operations, on the ground that they cannot be permitted to be kept in-charge having no right.

67. The situation is indeed serious. The State Government has simply thrown up its hand stating that it does not have the machinery, equipment or personnel to take care of the mines. The Director General of Mines Safety has stated that it is the responsibility of the State Government. The State Government has currently chosen option of directing the erstwhile mining lease holders to carry out the safety operations. The Petitioners have pointed out to us that mining lease holders are not always obeying the directions of the Government. We do not have satisfactory answer from the State as to how it is going to enforce the directions given to the mining lease holders if they failed to take the measures as directed. However, at the same time, we cannot direct the State Government to dismantle the existing safety measures that they have put in place, as we do not have any credible data and viable alternative solution placed before us. We simply cannot dismantle the current measures, though unsatisfactory, for lack of any better alternative. Neither the petitioners nor the State have presented before us a credible alternative. But we do feel that the present arrangement of directing the mining lease holders to carry out safety measures during monsoon is fraught with various perils and cannot not be effective.
The Petitioners in the arguments have suggested that at least there should be a meeting between Indian Bureau of Mines, the Director General of Mines Safety, Goa and the State to find out the solution. For lack of any material before us, the only direction that we can give is that the Indian Bureau of Mines, the Director General of Mines Safety, Goa and Chief Secretary should hold an immediate meeting with the concerned Officers and draw a plan of action in respect of the safety measures in the light of the coming monsoon. The Chief Secretary will invite the necessary Senior Officers from the Police Department, Department of Forests, Department of Revenue, etc. and take collective decision in the matter. We trust and hope that collective wisdom of these officers will be able to find a suitable solution and the mechanism for the issue of the safety of the Mines, which might reach proportions if not attended to during the oncoming monsoon. Money from the sale of the ore can be used for safety operations.

68. Now we come to the third issue. That is the data maintained by the State of Goa in respect of the mines. In the meeting of 21 March 2018, the Director of Mines had assured that most transparent mechanism will be put in place, dynamic website shall be used to provide real time information with regard to details of the stock extracted and produced to track the movements. The same stand is reiterated in the affidavit filed by the Chief Secretary that the State has all the accurate data of all movements of ore and an accounting system has been developed by the Department of Mines. It is stated that the models have been developed adhering to the Goa (Prevention of Illegal Mining, Storage and Transportation of Minerals) Rules, 2013. In the affidavit of the State, it is emphasized that this system provides full proof data with public disclosure. We have observed earlier, vital data is missing from the website during the relevant period. It appears that automated real time system was disabled when it is put in public domain for the period in question. In principle, the State asserts transparency, but when it comes to implementing it in reality, it doesn’t seem to be living up to its own standards. One of the concomitants of the Public Trust Doctrine is that a citizen has a right to seek, receive, and disseminate information in respect of the activities that adversely affect the environment.
70. Before we conclude, we wish to make few observations .

71. First, the State can sell the ore and recover a substantial amount. The amount can be used in various ways to benefit the people. It can be deposited in the Permanent Iron Ore Fund; it can be utilized to take safety measure in respect of the mines; it can be used to help the working class affected by the mining and transportation closure, apart from the liability of their employers. Thus there are many ways in which State can use this amount for the benefit of the average Goans and the fragile ecology of Goa, on which Supreme Court has repeatedly emphasized.
72. Second, we are surprised at the vehemence at which the State has asserted the right of the mining lease holders in these proceedings. The State must keep in mind that it acts as a trustee of the people for the natural resources. In discharge of this duty, it has to keep the interest of the citizens at heart as the first priority. The ultimate relief sought in this Petition, that the ore belongs to the State, in a given case on facts, may not be tenable, but the notion itself is not abhorrent to receive such a vociferous opposition from the State during the arguments. We got a feeling that the dividing line between State and the mining lease holders was blurred. A neutral, balanced and measured response by the State would have been more appropriate and commensurate with its role.
73. Third, in this Petition, the State has filed 66 pages affidavit taking numerous legal points. It was filed with promptitude and obviously a substantial effort is put in it by the State machinery. Why we refer to it because, simultaneously we are hearing other public interest litigations in respect of the mining affected villages. These villages have suffered severe air pollution due to mining, the natural streams have been polluted and dried up and many do not have water to drink. In these petition, there was absolute lack of any response from the State. At first there were simple denials that problem is not serious. We had to pass series of orders over a period four months just to ensure that the State takes steps to provide drinking water to these villages. We found that 180 crore were collected by the State of Goa in last two years in District Mineral Fund for the mining affected, but not even single rupee was spent. The Foundations were established after we passed the orders and their first meeting was held just last month. We had to literally push the State on every date to do something to alleviate the suffering of the innocent mining affected. This sharp contrast in the State response in respect of these two ends of mining spectrum, the Mining Affected and the Mining Beneficiaries, is too stark for us not to notice. We write it here because it pains our conscience.
74. In the result of the discussion, the Writ Petition is disposed of as under :
(I) The impugned decision of the State of Goa dated 21 March 2018 to permit transportation of the royalty paid ore after 15 March 2018 in respect of 88 leases, not covered by the order passed by the Supreme Court dated 4 April 2018 in respect of the Appellants before the Supreme Court therein, is quashed and set aside.
(II) The State Government will take a decision within four weeks from today in the light of the observations made in this Judgment and in view of the legal position regarding its ownership rights as a custodian of the mineral resources and its powers to take possession, sell and dispose of the ore in question to utilize the proceeds for public purpose.
(III) The interim order dated 28 March 2018 is confirmed, and it shall continue as a final relief, excluding the ore covered by the order passed by the Supreme Court dated 4 April 2018 in respect of the Appellants before the Supreme Court therein. It is clarified that this order will not be construed as an embargo on the State to transport the ore in question treating it as a State property.
(IV) The Chief Secretary, State of Goa will hold a meeting officers within a period of 15 days from today to chalk out a comprehensive plan for the safety of the mines in question.
(IV) The Controller General of Indian Bureau of Mines will hold an enquiry to verify the correctness of the mining data maintained by the State of Goa in light of the disparity noticed and publish the report of such inquiry in the public domain, within a period of six months from today.
75. Rule is made absolute in the above terms.

Prithviraj K. Chavan, J.
N.M. Jamdar, J.

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