COMMON CAUSE v. UNION OF INDIA AND ORS.

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A in the official gazette as required by Section 26(2) of the MMDRAct.

200Copy pinpoint200. The Central Government set aside the order constituting the Conunittee 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 ofOdisha are pending B in the High Court. 20 I. 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 ofOdisha to pass a final order on the submissions made by Aryan. On 28'h April, 2017 we had permitted the State of c Odisha to pass final orders but we are not aware whether any orders have since been passed.

202Copy pinpoint202. As far as Kavita Agrawal is concerned, her lease was terminated by the State of Odisha and the Central Government also dismissed her revision petition on 28th April. 2014. The said mining lease holder has since filed a writ petition which is pending in the Orissa High Court.

203Copy pinpoint203. 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 1;he 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.

204Copy pinpoint204. Accordingly, for considering the appointment ofan appropriate Conunittee 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." Intergenerational equity

'"(2016) 4 sec 469 H

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[MADAN B. LOKUR, J.]

205Copy pinpoint205. 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.

206Copy pinpoint206. 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 c 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.

207Copy pinpoint207. The second principle relied on is the principle of'conservation D 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 arc also entitled to quality enjoyment of the diversity in the natural and cultural resource base. E

208Copy pinpoint208. 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.

209Copy pinpoint209. 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 Vlith 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 ofOdisha or by the Union ofJndia. 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 H

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A and is not being enforced perhaps due to the involvement of very powerful vested interests or a failure of nerve. We arc 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 National Mineral Policy, 2008 B and announces a fresh and more effective, meaningful and implementable policy within the next few months and in any event before 31" 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. c Inquiry by the Central Bureau of Investigation

210Copy pinpoint210. 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 D 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 clements being brought to book for the despoliation of the land. E 21 l. 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 oflapses and finding solutions to the problems that arc faced. 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. H

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[MADAN B. LOKUR, J.]

212Copy pinpoint212. There is no doubt that the recommendations of the A 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 B tribals inhabiting the land for several generations. Utilization of funds by the Special Purpose Vehicle

213Copy pinpoint213. In LA. Nos.2746-2748 of 2009 filed by Rabi Das, an order was passed on 27'h January, 2014 relating to the preparation of a scheme by the CEC for setting up a Special Purpose Vehicle (SPV) for tribal c 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 ofOdisha from the mining lessees will be used by the State of Odisha through a Special Purpose Vehicle D (SPV) for undertaking specific tribal welfare and area development works so as to ensure inclusive f,'l"owth of the mineral bearing areas.The Siate ofOdisha will accordingly file within four weeks from today, a comprehensive plan forthe development of tribals out of the aforesaid funds, taking into consideration their requirements of health, education, communication, E 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."

214Copy pinpoint214. Subsequently on 28'h April, 2014 this Court accepted the scheme prepared by the Government of Odisha in consultation with the F 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"' April, 2014: G "Pursuant to.orders passed by this Court on 7th [27"] 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 H

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A ensure inclusive growth of mineral bearing areas in the State of Odis ha. The Central Empowered Committee has submitted a Report dated 9th April, 2014 and has recommended that the Scheme prepared by the Government ofOdisha may be approved by this B Court and the ad hoc CAMPA may be directed to transfer to the SPY 50 IJer cent of the additional amount of the NPY 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 C of Odisha and the recommendation of the Central Empowered Committee and we approve the Scheme and direct as hoc CAMPA to transfer to the SPY 50 per cent of the additional amount of the NPY within a month for undertaking tribal welfare development works. o The Interlocutory applications be listed in the month of July, 2014."

215Copy pinpoint215. Some of the salient features of the Scheme arc as follows:

5. The SPY 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 E livelihood intervention, health, water supply and sanitation, educati<!m, 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 F 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 G Budget, (c) to enter into any agreement for and on behalf of the SPY; ( d) institute and defend legal proceedings (e) to consider and approve the Annual Report, audit report, annual accounts and the financial estimates of the SPY, (fl to prescribe procedure to be followed for implementation of the projects/works and for H

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[MADAN B. LOKUR, J.]

maintenance of accounts and (g) to undertake any other ancillary A 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 B (b) The composition of the Board of Directors of the SPV, as provided in the present scheme, will be modified only after obtainingperrnission from the Hon'ble Supreme Court. I 0. The accounts of the SPV will be internally audited annually by the Chartered Accountant firrns empanelled with the CAGI C 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, Odis ha.

11. The State Government has, earlier, registered a Society, namely, Society for Inclusive Development of Mineral Bearing D Areas of Odisha, which has been registered vide registration number 23354174 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.

216Copy pinpoint216. It appears that the scheme has been implemented with the Chief Secretary ofOdisha 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.

217Copy pinpoint217. During the. course of hearing, some of the mining lease holders represented by Shri Gopal Sµbramanium, Senior Advocate offered to deposit and in fact did deposit an amount ofRs.237 .05 crores for utilization by the SPV for carrying out welfare works and activities in the districts ofKeonjhar, Sundergarh and Mayurbhanj in Odisha. The deposit was made by way of a cheque on 6'" April, 2017 and was without prejudice to the rights 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

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A 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 rnade available to the State of Odisha. These amounts B should also be kept with the Special Purpose Vehicle.

218Copy pinpoint218. To ensure that the amounts are utilized for the benefit of tribals in the affeicted districts and for area development works, we would like the Chief Secretary of Odisha to file au affidavit stating the work done as well as providing the audited accounts of the receipt and c expenditure of the SPV from its inception. Conclusion

219Copy pinpoint219. In view of findings above, we dispose of the writ petitions to the extent of the directions that we have already given.

220Copy pinpoint220. I.A. Nos. 45 (filed by Zenith Mining) and47 (filed by Kavita Agrawal) arc dismissed since their lease has not been extended or has been determined and they do not have any environment clearance or forest clearance.

221Copy pinpoint221. I.A. No. 66 (filed by J.N. Pattnaik) is also dismissed since E there is no forest clearance available.

222Copy pinpoint222. We have been informed that S.A. Karim (I.A. No.9) actually had a working lease and has \vrongly 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 F Government should ensure that the lessee S.A. Karim in fact has valid statutory clearances.

223Copy pinpoint223. Pending show cause notices issued by the State Government should be decided by 31" December, 201 7 (if not already decided) after hearing the concerned noticees.

224Copy pinpoint224. 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. H

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[MADAN B. LOKUR, J.]

225Copy pinpoint225. The amounts determined as due from all the mining lease holders should be deposited by them on or before 31" December, 2017. Subject to 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.

226Copy pinpoint226. 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 3 7 of the Mineral Concession Rules to them.

227Copy pinpoint227. 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 c the years that have enabled rampant illegal and unlawful mining in Odisha and to recommend preventive measures not only to the State ofOdisha 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. D

228Copy pinpoint228. 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 31" December, 2017.

229Copy pinpoint229. The Chief Secretary of Odisha should file an affidavit as E · indicated by us within a period of six weeks and in any case on or before 30'h September, 2017. The Registry will list these petitions along with the affidavit immediately after its receipt for our consideration.

230Copy pinpoint230. All other pending l.A.s are disposed ofin terms ofourorders. F Divya Pandey Directions issued.