12 day of hearing (29 October) Though the Advocate General of Goa (A.N.S. Nadkarni) had commenced his arguments in the final hour of the last date of hearing, he resumed this morning. Since he responded on behalf of the State of Goa, we are reporting the submissions in greater detail. The AG opened his submissions with two initial statements: 1) that NEERI had been appointed by the Goa Govt to do an audit of all environmental issues for the state of Goa, with emphasis on mining; that NEERI had been asked to give an interim report, preferably within 3 months and that until NEERI gave its interim report, there would be no fresh excavation of ore. This was the commitment of the Goa Govt being made to the SC in the matter. 2) The total prohibition of mining in the state of Goa was creating enormous stress, not only for the govt but more especially for the working class of which he said there were 1.5 lakh affected. He explained that if the mines dont work, those persons directly engaged in mining operations, that is, the workers in the mines, the trucks, barge owners, dont work and their families therefore suffer. Apart from those directly engaged in mining work, there are other ancillary activities consequent on mining including resturants, repair shops, workshops, barbers shops, etc. The Court stopped the AG at this stage to ask why barber shops had shut down on the stoppage of mining activities, since hair continues to grow whether there is mining or not. AG: Workers come from out of the State and it is they who patronise these shops, restaurants, and as they have gone back, the shops naturally have less business or close down. He therefore sought a solution in very limited terms, which he urged the court to grant at this hearing. There is already excavated ore amounting to 11.47 million tonnes. An inventory has been done of this ore which is lying at the mining leases and at the river jetties. This ore can only be sold, it cannot be returned to the mining pits, it has no other use except sale and if this ore is allowed to be transported, it would greatly relieve the pressure on the working class. He also pointed out that the mining transportation rules 2013 had been gazetted by the State and there was monitoring right from the pithead until the ore gets into the jetty. It is electronically monitored, so there is no scope for malpractice. Every source of ore carried by the truck will be known to the authorities and the movement in the state will be monitored. After listening, the Court made two inquiries: a) do you have the staff to carry out this activity which you are assuring us will be done properly? AGs reply: a) it is being electronically monitored and the weigh slips will be pasted on the trucks and all details will be available, and b) staff was being employed by the mines department for the purpose. In principle approval had already been given by the State for recruitment of new staff and some recruitment was on the way and the process would soon be completed. Justice Patnaik: Have you observed what happens on the road? The truck driver is stopped at a checkpost. There is a discussion that engages the truck driver and the police, after which they shake hands and the trucks moves on. Everyone knows what is going on. This is all done in the open. The second query from the Court: How long will it take for the transportation of this ore at the jetties/leases? AG: One mining season, which would be from October to May. After pleading for permitting to sell the dumped ore, AG went back to his submissions: He said that applications for renewal of the lease had been filed by the mining companies as required one year prior to 21.11.2007 when the lease period was to expire. He agreed that under section 8 (2) of the MMDR Act. the first renewal period had come to an end. He said at that time, the (Digambar Kamat) govt should have taken a decision in terms of second renewal. However, the govt at that time did not properly consider the renewal applications under 8 (3). Justice Patnaik: So far as we are concerned, govt is govt. As far as elections are concerned, things may be different, but there is no point in bringing up the failings of the so-called previous govt to distinguish it from the stance taken by the present govt. We treat all govt decisions as one and the same. AG next summarised the various steps taken by the present govt since the time it had come to power in March 2012 and whilst summarising them, he highlighted certain important steps that had been taken, apart from curbing or taking action on the immediate violations. The significant steps included: The Goa State mineral policy had been finalised. The Goa Transportation Rules 2013 had been notified. The Draft Ecosensitive Rules had been approved and forward to the MOEF for approval and notification. The Indian Stamp Act was amended to collect dues from the mining companies for the period 2007 onwards when signing their lease deeds. AG said these were major steps take by the state govt in just the short period period of one year since it had been in power during which time in fact it was faced with all the problems that had been created by the previous govt. AG next gave a summary of the mining status in Goa, pointing out that the average size of the mining lease is 60 ha, no lease is above 100 ha, while the national average is 250 ha. He explained that out of the 581 concessions granted by the Portuguese, due to various factors, many had fallen by the way (because they did not renew on time etc.,) and now there were some 164 which could be called the surviving mining leases. To a question from Justice Patnaik about how many were operating out of that, AG replied: 93. Presently, AG informed the Court, no mines were working in any wildlife sanctuary. One working lease found, that of Antao, had been immediately terminated. (He read out the lease termination order.) He also said that stamp duty on the leases approved for renewal “in principle” had been collected, and that this was after notice had been issued in this petition. Court: So it appears that your activity has been triggered by this petition? AG said that “in principle” orders for renewal of 28 leases had been issued and stamp duties for all collected but the final orders had not been passed. The Court repeatedly questioned AG about whether any assurances had been given to these companies about the renewal. AG in reply: these leases had been examined from all angles and were found not to be violating any laws and therefore they could be renewed under section 8 (3) ([that is, as second renewal]. However before final orders are passed, the govt would still examine them in light of the violations pointed out in the Shah Commission report, the PAC report and the CEC report as per govts understanding of law vis-a-vis these reports. AG moved on the dumps issue. He first informed the Court that no dumps have been handled after 23.9.2012 (date of circular issued by Kamat govt banning dunp handling). He said the govt feels that dumps should be allowed for handling because there is some ore there which was once not viable for sale. Besides these dumps are occupying large areas in the state, they can be source of environment problems because they are in agricultural land, they can pollute the water, and, although care has been taken, they can be a source of environment problems and in any case they should be removed. Therefore the govt has come out with following solution on dumps: which is, the dumps in private lands which were erected without permission of the state authoritieis, they would need to pay conversion charges for use of the land without authority; for dumps on revenue lands, they would have to pay rent for the long period they have occupied govt lands, some for 50 years or so. There would also be a penalty on their use of the land without permission plus conversion charges for unauthorised use of the land. As for the dumps on forest land: such dumps already stand confiscated and have become property of the govt. In substance, the present govt has taken a very strict view of the dumping of mining rejects and overburden outside the lease area without statutory approval and purely on the basis of private agreements that may have been made by the mining lessees with surface rights owners. The govt therefore intends to do everything in its power to recover the money owed to the govt for unauthorised use of this land. In this manner the intention of the govt is not just to collect past dues but to return these lands back to their normal use and restore agriculture as per the zoning in the regional plan. The Court asked whether agriculture was on the increase in Goa and the govt said there were no new lands being brought into agricultural use but large areas were being converted to non-agricultural purpose for big projects and this govt was committed to stop such conversions. The discussion next shifted to the appointment of NEERI. The Court inquired about why NEERI had been selected and will NEERI be able to do this environment audit for the State of Goa. AG: NEERI was appointed by this Court in several matters on so many times. Justice Nijjar said you dont go only on what was done in the past. A lot has happened since those days, we move around, we see things. You cannot appoint NEERI simply because the Court has done so in the past. Justice Patnaik: My knowledge is that NEERI wont be able to do it. You have to examine whether NEERI is capable of doing the task you intend to have done for Goa. AG said: We will put the query to NEERI, but the State was confident that it could do it, and the HC had appointed NEERI in several matters connected with mining in Goa. The Court suggested that Indian School of Mines, Dhanbad, might be suitable but then again ISM may be only having expertise in mining and not on the environment aspects. Let us see what their report/study which they are preparing is all about when it is placed before us. CEC got up to say that a lot depends on who is appointing the agency for doing the study and more particularly who is paying the money to the agency. He gave an example of a mining lease of Sesa Goa where, when the company had commssioned NEERI, it had said 6 million tons was sustainable extraction. But later on, when the Court had appointed NEERI for a larger mining area, which included the particular mining lease, the reply of NEERI was now 2.5 million tons. The MOEF counsel, Solicitor General Mohan Parasaran interjected to say there were now two other reports for consideration of the Court: a) the report on ecozones from Goas six wildlife sanctuaries and b) the report of the EAC which had examined the environment clearances given for Goa mines. Prashant Bhushan interjected to say that a multidisciplinary team with expertise in various fields was required for a proper environment audit. The AG pointed out that soon after the govt came to power, it naturally took them some to study the situation but since it found a lot of malpractice, it suspended large number of officers including director, etc. Justice Kalifulla said: You have suspended the directors but what will they do when the rules were not in place? Rules and policies have been notified only now. How can you penalise the officers for the inefficiency of the govt.? The Court asked about the Justice Khandeparkar committee. AG: The matter is now referred to the Lokayuktha. Court: Lokayuktha judge has also resigned so now what will you do? AG then referred to the 10 km eco-sensitive zone matter and said it is very harsh for Goa because if we take 10 km, then even the High Court and Secretariat would have to moved elsewhere. Court: But we will not be doing mining activity, so will you still ask us to move elsewhere? Court reiterated that it was not intending to prohibit all activties in the 10 km zone. It was merely desirous of knowing that those activities would not harm the sanctuaries which the Constitution requires the Court to protect under Art 21, 48, etc. To prohibit peoples activities will be difficult for us, but for mining it is different, it is a state activity leased out to people and we can prohibit the state from leasing out if there will be damage to the environment. On the proposal of the Goa govt to allow some mines 5-10 years relaxation, so that they could be phased out gradually and people would not suffer, the Court said: “Once you dont stop, it will never stop. If you allow it to continue for whatever period, it will never stop. Nothing gets closed gradually. Interests develop and the period for the activity to continue simply gets extended. The mines have been closed for a year now. Restarting them would be a bad idea. Secondly, if you allow phased closure, in the interim enough damage will be done. We are conscious that some of the mine lease holders will be affected but this cant be helped. We are not stopping any of the shops or any of the other so-called activities which were created consequent to the mining activities. We are only stopping the mining activity. AG pointed out that the MOEF has already uploaded a notification on the website and they also agree that mining cant be stopped immediately. So between the State and the MOEF, we will be able to arrive at a phased closure. The court said, the MOEF, we are sorry to say, will not be able to do anything. They are empowered to do it we agree, but our experience is they will not do anything. Court asked the AG specifically: “How do you propose this phase out? In what way are the mining activities going to be phased out?” AG: They will give a mine closure plan. Court: So the mining activity will continue until the closure plan comes into operation? There are no response to that from the AG. He merely said we can decide on the term of the period they are allowed to operated. Court: We are happy when you said at the start of your submisions that you agree that there is no deemed extension or deem operation and you agreed that the mining leases had effectively come to an end in 2007. You also said you have come out with a new mining policy. Therefore, now is the time to shape your new policy and to show that you can implement your ideas. If you are going to allow these activities to continue in any area where your mining policy itself prohibits them, then the same old system will continue. Admittedly, renewals have not been granted under 8(3). Therefore this is the time to make a fresh start. We know that as a democratically elected govt you are under pressure from the various interests in mining. Thankfully we are not under that pressure. We are not very much convinced of the schemes you have in mind for phased closure and phased mining. All that we say is this is the time when the leases are non-existent and you can implement and make a new start. Because of the limited time you will grant for phasing out mining, there will be a vehement approach to mining and great damage will be done in that short period which will be irreparable. The AG said there are human settlements in the areas adjacent to the wildlife sanctuary and that resettlement will also come into force. Justice Kalifulla: We have seen the wildlife sanctuary maps attached to your submission doument and there are not many settlements compared to other sanctuaries we have seen. You can easily do resettlement between a period of years. Justice Patnaik interjected: We are not stopping or halting settlements or activities. So you should not go away with the impression that you straightaway move these people from these areas because this is not being passed by us. He also said: One km is not such a big distance. Even if people are employed on the lease, they can easily walk to the area outside 1 km. People walk such distances every day. (This is a report of what happened in the Supreme Court during the hearing on the Goa mining case. It is not a press note or a press release issued by the GF.)
Posted on: Fri, 01 Nov 2013 16:05:05 +0000
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