Common Cause and Lokniti Programme of the Centre for the Study of Developing Societies (CSDS), launched India’s first Status of Policing in India Report (SPIR 2018) at the India Habitat Centre on May 9.Read More+
WP 114 of 2014
Writ against Illegal Mining in Odisha
In the context of a public outcry over massive mining scandals in various parts of the country, the Government of India had set up the Justice M. B. Shah Commission of Inquiry in November 2010 to inquire into the illegal mining, trade and transportation of iron ore and manganese ore, identify the deficiencies in the systems of management and regulation, and assess their overall impact in terms of environmental damage, prejudice to livelihoods and other rights of the local populations, and the financial losses caused to the Central and State Governments. The Commission’s reports on mining in Goa, (March-April 2012), brought to light massive illegalities in the extraction of iron and manganese ores. The Commission next submitted a 5 volume report on the mining sector in Orissa in July 2013 and sought a further extension of one year to complete its inquiry in other major mining areas. The Government, however, refused to extend its term beyond October 2013. Before it was wound up, the Commission submitted its report on mining in the state of Jharkhand (4 volumes), along with the second report on Orissa (3 volumes) and the third report on Goa. The Commission’s first report on Orissa, documents the reckless plunder of the nation’s mineral wealth and the flagrant violation of the laws relating to mining and environment protection and the fundamental rights of the local populations. The Government has resisted the demands for placing the Orissa report in the public domain. It has also failed to take any action on the findings of the report, or to lay it in Parliament along with an Action Taken Report (ATR) within six months of its submission as per the prescribed procedure. Common Cause has filed before the apex court, a writ on the substantive issues highlighted in the Orissa reports, to force the hand of the UOI and to seek urgent judicial intervention in the matter.
Following the filing of the petition, the operation of 26 illegal mines was stayed. The court in 2016 had directed the states to consider applications of miners filed before January 2015 or 12 months before the expiry of the lease. The court had held that mining leases will not lapse automatically unless the state governments hear the companies and pass orders to that effect.
The Supreme Court on August 2, 2017 imposed a hundred percent penalty on mining companies indulging in illegal mining on account of lack of forest and environment clearances, mining outside lease/permitted area and for mining in excess of what has been allowed. The bench headed by Justice Lokur directed that an Expert Committee be constituted and presided over by a retired judge for identifying 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. The Union of India was directed 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 and that the exercise should be completed by 31st December, 2017.
On August 28, 2017, the Apex Court listed the matter on 24th October 2017, for hearing the applications filed by Jindal Steel and Power Limited, Sarda Mines Pvt. Ltd., Essel Mining And Industries Ltd. And Rungta Group of Companies. On September 14, 2017, it was ordered to renew the FDR further, for a period of 91 days from the date of its maturity.
On October 24, 2017, various Interlocutory Applications filed in the matter were dismissed. Further, in I.A no. 90729/2017 the court ordered that the CEC as well as the State Government should sit together to iron out all anomalies so that the payments are made where the computation is completed on or before November 30, 2017 in accordance with the judgment of this Court.
On November 11, 2017, a committee of Justice G.S. Singhvi and Justice Anil Dave was requested to submit their report within a period of 12 weeks from the date of the first hearing. The report of the Committee was asked to be placed before this Court for consideration as soon as the same would be filed in the Registry of this Court. The court ordered that some of the writ petitions filed by some of the lessees as well as by the State of Odisha in the High Court of Odisha will be rendered in fructuous and that the State of Odisha may take appropriate steps in that regard.
On December 2017, the court admitted that royalty was paid on the fines. It was observed that the extraction/cleaning clearly amounts to a mining operation relating to iron ore on which royalty is paid by the applicant and the objections of the Jindal Steel and Power Limited to the CEC Report were disposed of.
On January 30, 2018 in IA NO. 9110/2018 filed by M/s. Essel Mining & Industries Limited requested for condonation of delay in making the payment. Learned counsel for the applicant submitted that since the time was short, there has been a few days delay in depositing the amount. The delay was condoned. IA Nos. 7253 & 7256/2018 were disposed of and the delay in making the deposit by the applicant was condoned subject to payment of interest at the rate of 12% per annum for the period of 11 days with the interest component to be paid within two weeks.
On February 15, 2018, the applicant in IA Nos. 9110/2018 & 9117/2018 stated that as per the judgment of this Court dated 2nd August, 2017, the amount due along with interest with regard to the JillingLangalotta, Koira and Kasia mines have been paid. Both the applications were disposed of with the direction to the Odisha government to permit the applicant to resume mining. IA NO. 18926/2018 filed by M/S Patnaik Minerals Pvt. Ltd stated that there was a delay of 31 days in making the payment due to the State Government but the entire amount has been paid with interest. The court condoned the delay and disposed of the application. IA No. 22301/2018 was withdrawn.
On February 23, 2018, an Application was moved by the amicus to bring on record the fact that perhaps there is an oversight and the name of M/s Serajuddin & Co. was left out for consideration in the judgment and order dated August 2, 2017 as being one of the Mining Lease Holders who may be in violation of Rule 37 and Rule 38 of the Mineral Concession Rules, 1960.
I.A. No. 21415/2018 was moved by M/s Serajuddin & Co. for permission to continue mining. The court permitted the applicant to continue regular mining since the applicant and the state stated that all the payments had been made with interest, hence the application was disposed of. In I.A. No. 27229 and 27242 filed by Mr. Birat Chandra Dagara delay in making the payment was condoned subject to payment of interest at 12% per annum. Learned counsel for the State of Odisha said that the payment has been made along with interest. The application was disposed of.
On March 13, 2018, the Committee requested for an extension by ten weeks to complete the enquiry and it was allowed.
On March 21, 2018, the FDR was ordered to be renewed for a further period of one year.
On April 3, 2018, IA No. 43947/2018 was ordered to be listed after the report from the CEC is received and the applicant was allowed to restart mining, since the payment had been made in terms of Rule 49 of the Minerals (Other than Atomic and Hydro Carbons Energy Minerals) Concession Rules, 2016. Further on April 9, 2018, it was clarified that there is no prohibition against re-starting mining notwithstanding the examination of the application filed by the applicant by the CEC.
On May 11, 2018, IA NO. 108236/2017 has been disposed of. The Steel Authority of India Ltd. may operationalize the mining lease, subject to confirmation from the State of Odisha., which is to be verified by the learned counsel for the State of Odisha within one week.
On July 24, 2018, the state of Odisha was directed to file an affidavit within two weeks on IA No. 99347/2018. IA No.86784/2018 was dismissed.
On August 9, 2018, IA Nos. 110569 & 110570/2018 were dismissed. The learned counsel for the applicant(s) said they would like to take instructions whether the amount can be deposited with interest without prejudice.
On September 6, 2018, Sr. Advocate Mr. Gopal Subramanium presented some suggestions, framed in consultation with some others advocates and they were accepted by Mr. Prashant Bhushan, learned counsel for the petitioner and by the learned Amicus.
The SC has ordered that the amount of Rs.237.05 crores lying in the Ministry along with interest should be handed over to the Special Purpose Vehicle and clarified that the Special Purpose Vehicle and utilization of funds are not adversarial. The learned Counsel for the State of Odisha said she will get back within two weeks after taking instructions in this regard.
Additional Affidavits & Supplementary Additional Affidavit were filed by the state of Odisha. Report no. 4 of 2018 was submitted by CEC & it stands disposed of.
With regard to I.A. No. 58800/2018, the Learned counsel for the State of Odisha has confirmed the receipt of all the due payments from the applicant (Birat Chandra Dagara). The SC allowed the application and said that the State of Odisha may take certain necessary steps. In addition to this, SC said:
“Mining may be resumed subject to compliance of all the regulatory requirements including clearances.”
In accordance with the hearing on September 24, 2018, the IA No. 139365/2017 has been disposed of, as stated by learned counsel for the Odisha Mining Corporation Limited and that of the state of Odisha, all payments have been made and all necessary permissions have been obtained and under the circumstances, the Odisha Mining Corporation Limited may be permitted to resume mining.
In addition to this, in the IA Nos. 111982/2018, 111973 & 136382/2018 the learned Counsel of the State of Odisha confirmed that the payment has been made. The Court disposed of the matter and ordered that subject to clearances being obtained, the applicant(s) may be permitted to resume mining.
IA Nos. 113096/2018 113096, 110418/2018, 132667/2018, 130078-79/2018 & 130083/2018 have been listed to be heard on October 31, 2018. In IA No. 113096/2018, the Court has ordered to issue notice returnable on 31st October, 2018.
During the hearings from 18 September 2018 to 5 October 2018, the arguments were heard in part.
On 8 October 2018, agruments on the issue concerning Sarda Mines Pvt. Ltd were concluded and the order has been reserved.
WP 114 of 2014
WP 114 of 2014 16-May-2014-Interim Order
WP 114 of 2014 04-April-2016-Order
WP 114 of 2014_2nd Aug 2017
Order_24 September 2018
Order_18 Sep 2018
Order_24 Sep 2018
Order_28 Sep 2018
Order_08 Oct 2018