COMMON CAUSE v. UNION OF INDIA AND ORS.

The Judgment of the Court was delivered by F MADAN B. LOKUR, J. I. The facts revealed during the hearing of these writ petitions filed under Article 32 of the Constitution suggest a mining scandal of enormous proportions and one involving megabucks. Lessees in the districts of Keonjhar, Sundergarh and Mayurbhanj in Odisha have rapaciously mined iron ore and manganese ore, apparently G destroyed the. environment and forests and perhaps caused untold misery to the tribals in the area. However, to be fair to the lessees, they did the detail steps taken to ameliorate the hardships of the tribals, but it appears to us that their contribution is perhaps not more than a drop in the ocean - also too little, too late. H

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A Facts leading up to the report of the Central Empowered Committee

2Copy pinpoint2. Rabi JDas, the editor of a daily newspaper called Arna Rdjdhani filed I.A. No. 2746-2748 of 2009 in a pending writ petition being T.N. Godavarman v. Union of India. 1 He prayed, inter alia, for the B following directions from this Court: " a) Issue a direction to the Central Empowered C01nmittee to co11duct an exhaustive fact finding study of the illegal mining in Keonjhar, Sundargarh and other Districts ofOrissa; b) Direct appointment cifa "Commission" to investigate and c study the modalities of the illegal machinations, fix re;-ponsibility on individuals (in Government and outside it) and recommend remedial measures to be immediately implemented by the Government of India and the Government of 01issa; D c) Direct the Respondents to take effective and appropriate action to ensure closure/stoppage of all the illegal mining acti'.lities in the concerned areas and direct prosecution and punish all those found guilty of this illegal mining in violation of the Mines and Minerals (Development and Regulation) E Act, 1957, Forest (Conservation) Act, 1980 and other relevant laws."

3Copy pinpoint3. The applications were taken up for consideration on 6" November, 2009 when notice was issued to the Central Empowered Committee (for short 'the CEC') to file its repqrt/response within six weeks. F

4Copy pinpoint4. On 26" April. 20 I 0 the CEC submitted an interim report which wa> noted by this Court and taken on record. The neport was of a general nature but contained quite a few recommendations. Some of •he reco111mendations presently relevant are as follows: G "(b) Even otherwise the Rule 24-A(6), MCR, 1960 does not authorize the lessee to operate a mine without the statutory clearances/approvals. Therefore, in respect of a mine covered under the 'deemed extension' clause, the mining operations should be permitted to be undertaken in the non H ' W.P. No. 202 of 1995

COMMON CAUSE v. UNION OF INDIA AND ORS. 385. [MADAN B. LOKUR, J.)

forest area of the mining lease only if(i) it has the requisite A environmental clearance; (ii) it has the consent to operate from the State Pollution Control Board under the Air and Water Acts; (iii) Mining Plan is duly approved by the competent authority; and (iv) the NPV for the entire forest falling within the mining lease is deposited in the B Compensatory Afforestation Fund. The mining in the forest land included in the mining lease should be permissible only if, in addition to the above, the approval under the FC Act/TWP has been obtained; (c) No forest land can be leased/assigned without first obtaining c the approval under the FC Act. Therefore, the forest area approved under the FC Act should not be lesser than the total forest area included in the mining leases approved under the MMDRAct, 1957. Both necessarily have to be the same. In view of the above, this Hon 'hie Court while permitting grant of Temporary Working Permission to the D mines in Orissa and Goa has made it one of the pre- conditions that the NPV will be paid for the entire forest area included in the mining leases. Similarly, all the mining lease holders in Orissa should be directed to pay the NPV for the entire forest area, included in the mining lease; E (d) In Orissa, substantial areas included in the mining leases as non forest land have subsequently been identified as DLC forest (deemed forest/forest like areas) by the Expert Committee constituted by the State Government pursuant to this Hon'ble Court's order dated 12.12.1996. While F processing and/or approving the proposals under the FC Act in many cases such areas have been treated as non- forest land. It is recommended that (i) the NPV for the entire DLC area included in the mining lease, after deducting the NPV already paid, should be deposited by the concerned lease holder and (ii) the mining operations in the unbroken G DLC land (virgin land) should be permissible only if the permission under the FC Act has been obtained/is obtained. for such area. Keeping in view the peculiar circumstances· as was existing in Orissa and subject to the above, the mining operations in the broken DLC land may be allowed to be H

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A continued provided the other statutory requirements and Rules are otherwise being complied with." The report concluded by recording as follows: " a) an attempt has been made for the first time by the CEC to comply and analyse the status of all the mining leases in a · B State and to suggest effective and remedial measures - something made possible because of the unstinted cooperation extended by the senior functionaries of the Forest and Mines Departments of the State Government; and c b) the above recommendations if accepted and implemented will, besides ensuring that mining is done in compliance with the statutory provisions, result in recovery of additional an1vunt towards the NPV etc. running into hundreds of crores ofrupees. It would be appropriate that a part of this additional amount, say 50% is used through a SPV for undertaking specific tribal welfare and area development works so as to ensure inclusive growth ofthe mineral bearing areas. The CEC proposes to file detailed schemes in this regard for seeking pennission of this Hon 'ble Court provided the State of Orissa as well as the MoEF endorse the course of action proposed above." The significance of the second conclusion will be discussed by us a little later.

5Copy pinpoint5. Notice was issued on the report returnable on 7'" May, 20 I 0. On the adjourned date, the following order was passed by this Court: F "'The CEC has filed its Report. The State would like to file its respc;mse. Six weeks time is granted for the same. The recommendauons of the CEC which are acceptable to the State Govenunent can be complied with." G It may be mentioned that some of the recommendations made by the CEC have been accepted and implemented by the State of Odisha.

6Copy pinpoint6. The issue of mining in Odisha again came up for consideration on 16"' September, 2013 and this Court passcJ the following order: "We call for a report from the Central Empo'Wered Committee H within a period of six weeks. We direct that the parties of the

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[MADAN B. LOKUR, J.]

State Government of Odisha and the Central Government A will cooperate with the Central Empowered Committee to enquire into the matter and furnish a report. The matter be listed on a Monday after six weeks."

7Copy pinpoint7. With reference to the order passed on 16th September, 2013 the CEC conducted an inquiry and some information was sought from B Mis SardaMines Private Limited (for short 'SMPL"). This was objected to by SMPL who filed an application which was taken up for consideration on 9'' December, 2013. The following order was passed on that day: "By our order dated J6ili September, 2013, we had called for a Report from the Central Empowered Committee within a period C of six weeks. It is stated on behalf of the Central Empowered Committee that the Report could not be ready as part of the information called for have not been furnished by the State Government. Mr. Venugopal, learned senior counsel for the applicant M/s. D Sarda Mines Private Limited in IA No.3721 submits that since some of the matters are pending before the High Court, a prayer has been made for not furnishing the required information to the Central Empowered Committee. List this matter in the second week of January, 2014. E

In the meantime. the Central Empowered Committee may not submit its final Report." ,•

8Copy pinpoint8. The matter was again taken up on 13" January, 2014 and this Court passed the following order: F "We have heard learned counsel for the parties. We have also perused the letter dated l 7th October, 2013 of the Member Secretary, Central. Empowered Committee sent to the Chief Secretary, Government of Odisha along with its annexurcs and in particular, the Statement of Details of G information and documents sought by Central Empowered Committee for the meeting convened on 30th October, 2013, which cover forest and environmental issues. We, accordingly, modify the order dated 9th December, 2013 and direct the Central Empowered Committee to submit its final H

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A report on the queries made by the State Government with regard to the details of the documents sought for in the letter dated 17"' October, 2013 within a period of six weeks. The Report will not cover cases other than forest and environmental issues. B The lessees and others from whom information is sought for will cooperate if they do not cooperate the Central Empowered Conµnittec will give its report. A copy of the interim report of26"' April, 2010 will be furnished to the learned counsel appearing for the State of Odisha. c This matter be listed on 20"' January, 2014 for consideration of the recommendations made by the Central Empowered Comnrittee in the said Report dated26'' April, 2010." Thereafter and partly based on reports given by Justice M.B. Shah, a D retired judge of this Court, holding a commission under the Commissions oflnquiry Act, 1952 a writ petition being W.P. (C) No. 114 of2014 was filed by Common Cause. Several prayers were made in the writ petition, and some ofthe more significant prayers read as follows:- "(a) Issue a writ of mandamus or any other appropriate writ directing the Union of India and Government of Odisha to immediately stop forthwith all illegal mining in the State ofOdisha and tll> terminate all leases that are found to be involved in illegal minil)g and mining in violation of the provisions of the Forest Conservation Act 1980, the environment laws and other laws. (b) Issue a writ of mandamus or any other appropriate writ directing the Union of India and Government of Odisha to talce action against all the violators involved either directly or indirectly in illegal mining, including I those named in the report of Justice Shah Commission. · (c) Issue a writ of mandamus or any other appropriate writ directing a thorough investigation by an SIT or CBI under the supervision of this Hon 'ble Court, as is recommended by the Ju;tice Shah Commission into illegal mining in Odisha and collusion between private companies/individuals and public officials ofthe State/Central Governments. H

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[MADAN B. LOKUR, J.)

xxx xxx xxx A ( e) Issue a writ of mandamus or any other appropriate writ directing the respondents to recover the illegally accumulated wealth through illegal mining and related activity, as per Section 21(5) of the MMDR Act, 1957 [Mines and Minerals (Development and Regulation)Act, 1957) and launch prosecutions B under Section 21 (I) of the MMDRAct 1957, and directth~t the money recovered would be used for the welfare of local communities, tribals and villagers."

9Copy pinpoint9. The writ petition was taken up for consideration on 21 "April, 2014 when the following order was passed: c "We have heard the preliminary objections with regard to the writ petition and we are not convinced that the writ petition is not maintainable. Issue notice. D As the State of Odisha, Union oflndia and the CEC have already been served with the notices, no further notices be issu~~-- to them. Notice, however, be issued to respondent nos. 4 and 5 returnable within four weeks. E It appears from the averments in paragraph 14 of the writ petition that several lessees are operating without clearances under the Environment (Protection) Act, 1986 and the Forest (Conservation) Act, 1980, and without renewal by the Government. Hence, an interim order needs to be passed in respect of these lessees who F are operating the leases in violation of the law. For consideration of the interim order that should be passed, only this writ petition be listed next Monday, the 28" of April, 2014, as first item. lt will be open for all parties and intervenors/ proposed intervenors to file their respective affidavits. G CEC, in the meanwhile, will make out a list of such lessees who are operating the leases in violation of the law. This list be prepared by the CEC without reference to the Shah Commission's Report.

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A Liberty is given to the parties to produce their papers before CEC. The State ofOdisha and the Union of India will cooperate with CEC to prepare the list." Report of ~he Central Empowered Committee

10Copy pinpoint10. The CEC gave its final report on 25th April, 2014 which was B considered ljy this Court and a detailed interim order was passed on 16"' May, 2014.' The sum and substance of the final report dated 25th April, 2014 and the interim order is that in the districts of Odisha that we are concerned with, namely, Keonjhar, Sundergarh and Mayurbhanj, the total number ofleases granted for mining iron and manganese ore are 187. c Of these, I 02 lease holders did not have requisite environmental clearance (under the Environment (Protection) Act, 1986) or approval under the Forest (Conservation) Act, 1980 or approved mining plan and/or Consent to Operate under the provisions of the Air (Prevention and Control of Pollution) Act, 1981 or the Water (Prevention and Control of Pollution) Act, 1981. This Court directed that 1nining operations in these I 02 mining D leases shall remain suspended but it will be open to such lease holders to move the concerned authorities for necessary clearances, approvals or consents and, "as and when the mining lessees are able to obtain all the clearances/approvals/consent they may move this Court for modification of this interiip order in relation to their cases."

11Copy pinpoint11. This Court also found that 29 out of 187 mining leases had been determined or rejected or had lapsed. It was directed that mining operations in these 29 mining leases will also remain suspended but it would be open to all these concerned lessees to move the authorities for necessary relief and as and when they get the appropriate relief, they could move this Court for modification of the interim order. F

12Copy pinpoint12. This Court also found that 53 iron ore/manganese ore mining leases were operational and that they had necessary approvals under the Forest (Conservation) Act, 1980, consent to operate granted by the Odisha State Pollution Control Board and also approved mining plans. (There is no specific mention about environmental clearance). In addition G 3 mining leases were located in forest as well as non-forest land, but mining operations were being conducted in non-forest areas of the mining lease as the lease holders did not have approvals under the Forest (Conservatio11) Act, 1980. Therefore a total of 56 iron ore, manganese ore mining leases were operating in the State of Odisha. H 'Common Cause v. Union oflndia & Ors. (2014) 14 SCC 155

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[MADAN B. LOKUR, J.]

13Copy pinpoint13. As far as the break-up of the 56 operational mining leases is concerned, it was found that 14 mining leases were operating on first renewal basis in accordance with the deeming provisions of Section 8(2) of the Mines and Minerals (Development and Regulation)Act, 1957 (for short 'the MMDR Act') read with Rule 24-A(6) of the Mineral Concession Rules, 1960 (for short 'the MCR') and 16 mining leases were operating since lease deeds for grant ofrenewal had been executed in_their favour. The remaining 26 mining leases were operating on second and subsequent renewal basis with the renewal applications pending a final decision with the State Government.

14Copy pinpoint14. In respect of the 14 first renewal mining leases, this Court permitted them to continue their operations for the time being in view of the deemed renewal provisions. This Court also permitted 16 mining leases to continue to operate since they had lease deeds executed in their favour. With regard to the remaining 26 mining leases operating on second and subsequent renewal applications, this Court drew attention to the decision rendered on 21"April,2014 in Goa Follndatitm v. Union D ofIndia' wherein it was held that the provision for a second or subsequent deemed renewal was not available in view of Section 8(3) of the MMDR Act. Consequently, these 26 lease holders were restrained from operating until express orders were passed by the State Government under Section 8(3) of the MMDR Act. Six months time was granted to the State Government to take a final decision on the renewal applications. This E Court left it open to the mining lease holders to apply fonnodification of the interim order dated 16'" May, 2014 on obtai11ing necessary clearances.

15Copy pinpoint15. During the hearing of these petitions, we were informed that the balance 26 mining leases are now operational in view of the amendment to Section 8(3) of the MMDR Act with effect from 12'" F January, 2015. However, we are not aware whether these 26 mining leases have the necessary statutory clearances.

16Copy pinpoint16. We may also mention that pursuant to the liberty granted to move for modification of the interim order of 161h May, 2014 we have received 17 interim applications for modification. Through a chart handed G over to us in Court on 3"' May, 2017 we have been informed that in respect of two ofthe 17 applications, that is, Zenith Mining (I.A. No. 45) and Kavita Agrawal (I.A. No. 47), the lease has not been extended or has been determined and they do not have any Environmental Clearance '(2014) 6 sec 590 H

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A or Forest Clearance. In respect of J.N. Pattnaik (I.A. No. 66), there is no Forest Clearance available. We were also informed that S.A. Karim (I.A. No.9) ;ictually had a working lease and had wrongly been included as a non-operational lease.

17Copy pinpoint17. Be that as it may, learned counsel for the lease holders drew B our attention to the record of proceedings of 16"' May, 2014 and particularly the following paragraph appearing therein: "We have passed interim order in a separate sheet. The Central Empowered Committee will give a final report on the Writ Petition by the end of July, 2014 and the matter will be listed in the first c week of August, 2014 before the Green Bench." We are mentioning this in the context of the order passed on J3ili January, 2014 adverted to above to the effect that "The Report will not cover cases other than forest and environmental issues."

18Copy pinpoint18. In its final report, the CEC has dealt with the following ten D topics: In thi~ final report dated the CEC dealt with the following ten topics:- "I. Production ofiron ore and manganese ore without/in excess of the environmental clearance/Mining Plan/Consent to Operate. E II. Mining leases operated in violation of the Forest (Conservation)Act, 1980. III. Illegal mining outside the sanctioned mining lease areas. IV. Mining leases acquired in violation of Section 6 of the MMDRAct, 1957. F V. Violation ofRule 37 ofthe Mineral Concession Rules, 1960 by the lessees. VI. Illegalities involved in the mining leases ofEssel Mining & Industries Ltd. VII. Illegalities involved in the mining lease of Sharda Mines (P) G Ltd. VIIJ.Massive illegal mining in Uliburu Forest land. IX. Inordinate delays in taking decisions by the State Government regarding renewal of the mining leases. X. Other issues." H

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[MADAN B. LOKUR, J.]

19Copy pinpoint19. By an order dated 16'' January, 2015 objections to the final report were permitted and we have since received quite a few objections. When the matter was taken up for consideration by this Court on 7"' October, 2015 and pursuant to the order passed on that date, the learned Amicus filed a statement dated 30"' October, 2015 in a tabufar form dealing with each I.A. filed in respect of the observations and recommendations made by CEC. Thereafter, when the matter was again taken up for consideration the learned Arnicus filed a note dated 15'' March, 2016 wherein the following four issues were flagged:- "(i) Leases lapsed under Section 4A(4) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as MMDRAct, 1957) (11 leases); C (ii) Violation of Rule 24 of the Minerals (other than Atomic and Hydrocarbons Energy Minerals) Concession Rules, 2016 (hereinafter referred to as MCR, 2016) and Rule 37 of the Mineral Concessions Rules, 1960 (hereinafter referred to as MCR, 1960) (9 leases); D (iii) Illegal mining in forest lands (20 leases); and (iv) Iron ore produced without/in excess of the environmental clearance (each of the operating leases involved)."

20Copy pinpoint20. Insofar as the first issue is concerned, it is common ground that that issue has been fully, conclusively and exhaustively dealt with by this Court by a judgment and order dated 4'' April, 2016 (Common Cause v. Union of India).' Therefore, the first issue does not survive for consideration by us.

21Copy pinpoint21. As far as the remaining three issues are concerned, these overlap with topics I, II and V dealt with by the CEC. Detailed submissions were made before us by learned counsel for all the appearing parties on these issues as well as by the learned Arnicus and the learned Attorney General. We propose to deal with them in this judgment and order. G

22Copy pinpoint22. We may mention that submissions were also made on topics III and IV identified by the CEC, that is, illegal mining outside the sanctioned mining lease areas and mining leases acquired in violation of Section 6 of the MMDR Act. We will consider these issues as well. • (20 I 6) 11 sec 455 H

394 SUP~EME COURT REPORTS (2017] 13 S.C.R.

23Copy pinpoint23. As far as topics VI and VII identified by the CEC are concerned, we would like to hear the parties in detail in respect of these issues.

24Copy pinpoint24. No challenges or submissions were made on topics VIII, DC and X and therefore we accept the report of the CEC on these topics.

25Copy pinpoint25. At this stage. we may mention some rather frightening figures mentioned by the CEC in its final report. According to the CEC, excess mining without environmental clearance or beyond what was authorized by the environmental clearance is 2130.988 lakh MT of iron ore and 24.129 lakh MT of manganese ore making a total of 2155.117 lakh MT c of iron and manganese ore. This does not include extraction of ore without forest clearance. These figures give an indication of the extent of excess or illegal or unlawful mining carried out.

26Copy pinpoint26. In terms of rupees, according to the CEC the total notional value of minerals produced without an environmental clearance or in D excess of the environmental clearance, at the weighted average price of minerals as proposed by the Indian Bureau of Mines comes to about Rs.17091.24 crores for iron ore and about Rs.484.92 crores for manganese ore making a total ofRs.17,576.16 crores. Again, this does not include mining without forest clearance. It is forth is reason that we have referred to the megabucks and rapacious mining. E Justice M.B. Shah Commission of Inquiry

27Copy pinpoint27. Apparently, and it appears quite independently of all these developments, the Central Government issued a notification on 22"" November, 2010 under the Commissions oflnquiry Act, 1952 whereby it appointed Justice M.B. Shah, a retired judge of this Court to conduct an inquiry on the following Terms of Reference: "2. (i) to inquire into and determine the nature and extent of mining and trade and transportation, done illegally or without lawful authority, of iron ore and manganese ore, and the losses therefrom; and to identify, as far as possible, the persons, firms, companies and others that are engaged in such mining, trade ~nd transportation of iron ore and manganese ore, done illegally or without lawful authority; (ii) to inquire into and determine the extent to which the management, regulatory and monitoring systems have failed to H

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[MADAN B. LOKUR. J.]

deter, prevent, detect and punish offences relating to mining, storage, transportation, trade and export of such ore, done illegally or without lawful authority, and the persons responsible for the same; (iii) to inquire into the tampering of official records, including records relating to land and boundaries, to facilitate illegal mining and identify, as far as possible, the person responsible for such tampering; and (iv) to inquire into the overall impact of such mining, trade, transportation and export, done illegally or without lawful authority, in terms of destruction of forest wealth, damage to the c environment, prejudice to the livelihood and other rights of tribal people, forest dwellers and other persons in the mined areas, and the financial losses caused to the Central and State Governments.

3. The Commission shall also recommend remedial measures to b prevent such mining, trade, transportation and export done illegally or without lawful authority."

28Copy pinpoint28. In the preamble to the notification appointing the Commission, it was noted that there were reports that mining, raising, transportation and export of iron ore and manganese ore illegally or without lawful authority was being carried on in various States in cine or more of the following forms: "(a) mining without a licence; (b) mining outside the lease area; (c) undertaking mining in a lease area without taking approval of the concerned State Government for transfer of concession; (b) raising ofminerals without lawful authority; ( c) raising of minerals without paying royalty in accordance with the quantities and grade; G (d) mining in contravention ofa mining plan; ( e) transportation of raised mineral without lawful authority; ( f) mining and transportation ofraised mineral in contravention of applicable Central and State Acts and rules thereunder; H

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A (g) conducting of multiple trade transactions to obfuscate the origin and source of minerals in order to facilitate their disposal; (h) tampering with land records and obliteration of inter-state boundaries with a view to conceal mining outside lease B areas; (i) forging or misusing valid transportation permits and using fwged transport permits and other documents to raise, tnansport, trade and export minerals;" It is in the above context that the Terms of Reference were framed. c

29Copy pinpoint29. On l" July, 2013 the Commission gave the First Report on Illegal Mining oflron and Manganese Ores in the State of Odisha. The report contains an executive summary and very briefly the Commission stated that: (i) All modes of illegal mining, as stated in the notification dated 22"d November, 20 I 0 of the Central Government are being D committed in the State ofOdisha; (ii) There is a complete disregard and contempt for law and lawful authorities on the part of many of the emerging breed of entrepreneurs; (iii) It appears that the law has been made helpless because of its systematic non implementation. The executive summary states that the following are discussed in the report: E "(A) l1'formation regarding mining leases should be placed on website to make mining operations more transparent and to display the information for each lease on the departmental/State website with various conditions which are required to be adhered by the lessee. F (B) Misuse of Rule 24-A(6) ofMCR, 1960 [Mineral Concession Rules, 1960] which provides for deemed extension of lease. Application for renewal of mining lease is not decided for one or other pretexts, may be, there is lack of co-ordination among various departments which are required to decide renewal application. There is gross misuse of deemed refusal and deemed G extension of both the provisions of renewal of leases {before 27.09.1994 and after) under Rule 24-A ofMCR, 1960. This casual and negative approach has caused dearly to State exchequer in the form of hundred crores of stamp duty and others. H

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[MADAN B. LOKUR, J.)

(C) Violation of the provisions of the Forest (Conservation) Act, A 1980, Rules & guidelines and directions issued by the Hon 'hie Supreme Court oflndia.

(D) Violation of the provisions of the Environment (Protection) Act, 1986. B

(E) Misuse of Rules: 10 & 12 of MCDR, 1988 [Mineral Conservation and Development Rules, 1988) which provides for modification and review ofmining plan only for a specific purpose, c namely, (i) Safe and scientific mining; (ii) conservation of minerals; (iii) the protection of environment; and D (iv) in case of modification, explanation for the same.

(F) Encroachment:- On the basis of Google Image, the survey report prepared by the E State Government by DGPS method, it was found that in 82 mining leases, there was encroachment. Out of the said leases, re-survey was ordered for 37 leases."

30Copy pinpoint30. Soon thereafter, the Commission gave its Second Report on Illegal Mining of Iron and Manganese Ores in the State of Odisha, F sometime in October, 2013. This report dealt with specific lease holders and violations committed by them. It is not necessary for us to delve into those specific details.

31Copy pinpoint31. It was submitted before us by learned counsel for the mining lease holders that the reports given by the Commission were not G acceptable on the ground that a notice had not been given to the lease holders under Section 8B or Section 8C of the Commissions of Inquiry Act, 1952. It was submitted that under these circumstances the reports given by the Commission were vitiated and therefore the foundation of the writ petition filed by Common Cause was taken away. We are not in agreement with learned counsel for the mining lease holders. H

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32Copy pinpoint32. The first report given by the Commission was a general, overall perspective on the subject while the second report went into specific details of several mining lease holders - but we are not concerned with those specific~. Therefore, whether notices were or were not issued to the lease holdets who were the subject matter of discussion in the second report is of no consequence. B

33Copy pinpoint33. What we are really perturbed about is the facts stated by the Commission in the first report. So far as this is concerned, we are of the view that no irregularity or illegality has been committed so as to vitiate the first report. Notwithstanding this, we are not relying upon any of the facts determined by the Conunission for the purposes of our judgment c and order.

34Copy pinpoint34. The procedure followed by the Commission has been mentioned in Volume I Part II of the first report, but it is not necessary for us to recount each and every detail. Suffice it to say that a resume of the procedure followed will indicate that full opportunity was given to the lease holcJers to have their say. Resume of the procedure followed by the Commission

35Copy pinpoint35. In March 20 I I the Commission sent the first questionnaire to the concerned Secretary of the Government of Odisha seeking the following information regarding each lease holder:- "(i) the name of the lessee; (ii) area of the lease; (iii) date of the execution of the lease deed; F (iv) present status (renewal, mining plan, mining scheme) approval date; (v) production and export particulars from the year 2008-09 up to January, 201 I; etc."

36Copy pinpoint36. On 20th April, 20 II the Commission sent the second G questionnaire to the said concerned Secretary seeking further information in a Fonn consisting of 14 questions and 4 tables.

37Copy pinpoint37. Thereafter, between 24th and 26th August, 20 ll the Commission issued the first notice to various mining lessees in Odisha seeking information on affidavit as per Profonna A and B enclosed with the H

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[MADAN B. LOKUR, J.]

notice. In Proforma A the lease holder was asked to submit details A which included the details of environment clearance, forest clearance and renewal of lease and whether the leased mine was in operation or not. In Proforma B the lease holder was asked to submit details which included the details of dispatch, domestic consumption and export in million tonnes of iron ore and manganese ore from 2006-07 to 2010-11. B

38Copy pinpoint38. The Commission visited Odisha from 7'" December.• 2011 to J4th December, 2011, from 3"' October, 2012 to 11'" October, 2012 and from 31" October, 2010 to 8'" November, 2012. The purpose of the visits was to collect information and seek explanations and gather facts from the concerned Departments of the Government of India and the Government of Odisha. During the visits, the C01nmission received as c many as 140 complaints alleging illegal mining. Accordingly, a public hearing was held in Keonjhar and Bhubaneshwar on I I"' and 12'" December, 2011.

39Copy pinpoint39. On21" December, 2012and12"' January, 2013 several senior counsel were given a personal hearing by the Commission including a D personal hearing to the Federation oflndian Mining Industries (for short 'FIMI'). Following the submissions made, a fresh notice was issued to the lease holders from 28'" January, 2013 seeking information in Proformas A to H. In terms of the fresh notice, the lease holder was required to verify the facts stated therein (which were collected by the E Commission) and if found incorrect then to state the correct facts. The fresh notice specifically mentioned that: "(i) The lessee shall come fully prepared to answer, related to this matter and submit all related records. (ii) Explain the production from the leased area without having F approval under F(C)Act, 1980. (iii) Explain the production during the deemed extension period without having approval under EIA Notification dated 27.01.1994 and amendments thereon. G (iv) Explain the excess production in violation of EIA Notification dated 27.01.1994 and amendments thereon under the EP Act, 1986."

40Copy pinpoint40. The report mentions the various dates of hearing given to foamed counsel for the lease holders, the State of Odisha, FIMI, H

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A Federation oflnpian Chambers of Commerce and Industry (FICCI) and the Ministry of Environment and Forest of the Government of India (for short 'MoEF') which are as follows:

HEARING DATE PLACE NO. B I. 21.12.2012 Office of the Commission. Ahmedabad.

3. 18.022013 -do- 4. 1------" 27.02.2013 Circuit House, Bhubaneshwar (Odisha)._

6. 01.03.2013 -do- c 7. 02.032013 -do-

9. 16.03.2013 Circuit House, Annexe, Ahmedabad. JO. 20.03.2013 -do- I I. 23.03.2013 Office of the Commission. Ahmedabad.

12. 02.04.2013 Circuit House, Annexe, Ahmedabad.

D 13. 03.04.2013 -do-

15. 12.04.2013 Office of the Commission. Ahmedabad.

17. 21.04.2013 Gujarat University Convention Centre, Nr. Helmet Cross Road, 132 fl. Ring Road, Ahmedabad. E 24.05.2013 Office of the Commission, Ahmedabad. 18.

41Copy pinpoint41. The number ofleamed counsel and representatives who were heard by the Commission and with whom interactions took place are mentioned in Annexure A to Volume I of the first report. The list of learned counsel runs into 18 pages - from page 33 to page 50 ofVolume I of the first report. Some individual lawyers appeared for several lease holders but the fact of the matter is that everybody who wanted to be heard was given a hearing.

42Copy pinpoint42. The function of the Commission as stated in the first report, at the present stage, is best described in the words of the Commission itself. It is stated as follows:- "The function of the Commission, at this stage, is only to inquire, assess the data collected and to submit the report on the said basis. On that basis, some remedial measures are suggested by the Commission for controlling illegal mining and violation of the

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[MADAN B. LOKUR, J.)

Acts and/or Rules. For that, there is no question of issuing notices A to the lessees. For collecting the data and assessing it, the Principles ofNatural Justice are fully complied with, as stated above. On the basis of the data submitted by the lessees and the submissions made by Ld. Counsel for them, the report is submitted." B It is further clarified on page 198 ofVolume I of the first report that with regard to individual mining leases in which there 1s a violation of the provisions of the Forest (Conservation) Act, 1980 and/or conditions of environmental clearance etc. a report wonld be submitted later on.

43Copy pinpoint43. It is therefore abundantly clear that the first report is generally c a limited fact finding enquiry on the basis of information supplied by the mining lease holders. Therefore, there is absolutely no question of any notice being issued to any mining lease holder under Section 8B or the right of cross examination being granted to any mining lease holder under Section 8C of the Commissions of Inquiry Act, 1952. We are satisfied that the Commission made adequate efforts to collect the facts and this collation in the first report was possible with the assistance of the mining lease holders and their learned counsel and representatives as well as the government authorities and FIMI and FICCI. Under these circumstances, no lease holder can seriously contend that the procedure adopted by the Commission in collecting facts was either irregular or not in accordance with law. As mentioned above, any mining lease holder who wanted to be heard was given an opportunity of being heard and was fully aware of what the Commission was attempting to achlcve and if any particular mining lease holder chose not to associate with it, it was at his or her own peril. Lack of knowledge of the proceedings before the Commission cannot be appreciated and we are quite satisfied that all the mining lease holders were fully aware of what was going on, if not personally then certainly through their list of learned counsel running into 18 pages or their representatives individually or their Federation.

44Copy pinpoint44. In Goa Foundation there was a challenge to the report of the G Justice Shah Commission in respect of its conclusions pertaining to the State of Goa. This was dealt with by this Court in paragraphs 11 to 14 of its decision. Tills Court declined to quash the report in view ofthe statement made by the learned Advocate General of Goa. But, this Court took the view that: "we will, however, examine the legal and environmental issues raised in the Report of Justice Shah Commission and on the basis of our H

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A findings on these issues consider granting the reliefs prayed for in the writ petition filed by Goa Foundation and the reliefs prayed for in the writ petitions tiled by the mining lessees, which have been transferred to this Court."

45Copy pinpoint45. In the present petitions before us, there is no challenge to the B reports of the lustice Shah Commission. However, we propose (as in Goa Fo1111dation) to confine ourselves to some limited facts adverted to by the CEC in its final report. We do not propose to base any of our conclusions on the reports· of the Commission.

46Copy pinpoint46. Learned counsel for the petitioners insisted that the illegal or c unlawful mining activity carried on in the State ofOdisha as noted by the Commission deserves to be investigated by the Central Bureau of Investigation. Reference in this regard was made to the passage in Part III of Volume I of the first report of the Commission to the following effect:-

D "Since this is one of the biggest illegal mining ever observed by the Commission, it is strongly felt that this is a fit case to handover to Central Bureau oflnvestigation, for further investigation and follow i?P action."

47Copy pinpoint47. Similarly, on page 125 of Chapter II ofVolume I of the report, E it is stated as follows:- "Terrns ofReference No. 8 provides that "The Commission may take the services of any investigating agency of the Central Government in order to effectively address its terms of reference. The Commission, therefore, suggests that Central Bureau of F Investigation (C.B.I.) may be directed to investigate into allegations of corruption made against politicians, bureaucrats and others." We will consider this at the appropriate stage. Suffice it to say for the time being that the Commission made certain significant observations in G Chapter II of the report to the effect that: a. That the tribals in the area have been displaced or stay in pathetic and miserable conditions in same area. There is rampant air pollution with the trees having the colour of minerals making it clear that tribals are forced to breathe polluted air and drink H polluted water.

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[MADAN B. LOKUR, J.]

b. Streams and ground water is polluted and there is hardly any facility of drinking water. Women have been seen fetching water from dirty nalas. c. Mining companies and beneficiation plants are drawing water from rivers and nearby water resources are getting depleted at a fast rate. The river Baitrani has been seriously affected by this activity. d. Basic facilities such as medical facilities. shelter/residence, education facilities are absent. Roads have a heavy flow of traffic and on one road of the area about 7000 trucks passed during night time. C e. The labour is not being paid adequate wages beyond the minimum wages even though the income of the mine owners . runs into billions of rupees . 48.Adverting to corruption in the area due to illegal mining activities, the Commission felt thatthe Vigilance Commission was unlikely to conduct ail 'impartial and independent enquiry for arriving at just and proper findings because of external pressures. Accordingly, it would be more appropriate if the Central Bureau ofinvestigation (CBI) conducts a detailed enquiry into all cases that have been registered between 2008 and 2011. It was also noted that the railways have issued demand notices to the extent ofRs.1,874 crores. The latest position with regard to these notices is not available.

49Copy pinpoint49. It was also noted that notices have been issued in 146 cases to various lease holders for recovery of mined ore as per Section 21 (5) of the MMDR Act. In the Koira circle notices have beeu issued to 55 F lessees for more than Rs. 13,000 crores; in Joda circle notices have been issued to 72 lessees for recovery of more than Rs. 44.000 crores; in Keonjhar cirdc notices have been issued to 4 lcssees forrecovery of about Rs. 1,065 crores; in Koraput circle notices have been issued to three lessees for the recovery of about Rs. 44 lakhs; and in Bolangir circle notice has been issued to I lessee for the recovery of about Rs.29 .5 G crores. In Baripada circle notices have been issued to 11 lessees for recovery of more than Rs. 467 crores. In other words notices have be'en,issued to the lessees for recovery of more than Rs. 59.000 crores! (According to the CEC the figure exceeds Rs. 61,000 crores) !! H

p. 404 Copy page pinpoint

50Copy pinpoint50. We have adverted to the reports of the Commission, without relying on them, only to highlight the gravity of the situation and nothing more. The gravity of the situation is also apparent from the report of the CEC and the Commission seems to support it. Initial contention

51Copy pinpoint51. The initial contention urged on behalf of the respondents - lease holders was that in giving the report dated 16"' October, 2014 the CEC has exceeded its remit. In this context, reference was made to the order of 13" January, 2014 in which it is stated that "The Report will not cover cases other than forest and environmental issues." c 52. We aie of opinion that this objection deserves immediate rejection. The subsequent orders passed by this Court have been completely overlooked by learned counsel inasmuch on 21" April, 2014 it was specifically noted by this Court that "CEC, in the meanwhile, will make out a list of such lessees who are operating the leases in violation of the law." Similarly, in the record of proceedings of J6th May, 2014 it was noted that "The Central Empowered Committee will give a final report on the Writ Petition by the end of July, 2014 ......... "

53Copy pinpoint53. From a reading of the orders and the proceedings that have been held in this regard from time to time, it is quite obvious to us that the jurisdiction of the CEC was not limited and it was expected to give a detailed report on all aspects of illegal mining or mining being carried out without any lawful authority in whatever manner. The initial objection raised on behalf of the lease holders is therefore rejected. Central Empowered Committee

54Copy pinpoint54. The Central Empowered Committee or the CEC was first constituted by this Court by an order dated 9th May, 2002 (T. N. Godavarman v. Union ofIndia)' as an interim body. Thereafter, it was constituted by a notification dated I 7'h September, 2002 issued under Section 3(3) of the Environment (Protection)Act, 1986 (for short G 'the EPA'). It has continued functioning and assisting this Court for more than a decade and even though it has been criticized on a couple of occasions, it is now an established body which renders extremely valuable advice to this Court and provides factual material on the basis of which this Court can make some recommendations and pass appropriate orders.'' '(2013) 8 sec 198 H 'T.N. Godavam1an v. Union oflndia, (2013) 8 SCC 198 and (2013) 8 SCC 204

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[MADAN B. LOKUR, J.] ,

55Copy pinpoint55. The details of the functioning of the CEChave been discussed by this Court in Samaj Parivartana Samudaya v. State ofKarnataka. 7 In that decision, questions were raised about the credibility of the CEC and while rejecting the submissions, it was made clear that the recommendations made by the CEC are subject to the satisfaction of this Court. We need say nothing more except that during the course of hearing of the present petitions, some of the conclusions arrived at by the CEC were disputed by the petitioners and even by the learnedAmicus and some were supported by learned counsel for the mining lease holders, the learned Attorney General and the learned counsel for the State of Odisha. It is therefore quite c!ear that in the present cases, the CEC as a fact finding body has functioned impartially and it is only on the conclusions arrived at by the CEC on the basis of the facts gathered that there can be some debate and discussion. Anyone may disagree with the views of the CEC and there is no need to make heavy weather about this at all.

56Copy pinpoint56. In so far as the report given by the CEC on 16'h October, 2014 D (the final report) is concerned, before going into the details thereof, we may mention that the CEC has stated that it held meetings with the Chief Secretary and other senior officials of the State of Odisha and others on six dates. It also heard the lease holders and others on seven dates and it held meetings with three of the lease holders that is Jindal Steel and Power Ltd. (JSPL), Sarda Mines Pvt. Limited (SMPL) and E Essel Mining and Industries Ltd. (Essel) on lO'h September, 2014. The CEC visited the site of the mining lease ofSMPL from4"' March, 2014 to 7'" March, 2014 and had site visits of a number of other lessees from 12'h July, 2014 to 16'h July, 2014.

57Copy pinpoint57. As far as the facts collected by the CEC are concerned, there F ·is no dispute with regard to their correctness. The CEC has recorded that there are 187 iron ore and manganese ore mining leases in the State of Odisha. On the basis of the material and information collected, a statement was prepared showing lease-wise and year-wise details of production of iron ore and manganese ore, pennissible production and G production without environmental clearance/beyond environmental clearance. The details in this regard have been given as Annexure R-14 to the final report.

1 c20!3) s sec 154 H

406 SUP~EME COURT REPORTS (2017] 13 S.C.R.

58Copy pinpoint58. Regarding the correctness of the information, the CEC has this to say: "24. A copy of the above said statement prepared by the CEC was made available, through the Director, Mines and Geology, Government ofOdisha and also through the Federation oflndian B Mining Industries (FIMI), to the lessees of each of the mining leases to enable them to verify the production and other details as given in the statement. During the hearings held before the CEC between 5•h August and 12m August, 2014 and also in the representations filed before the CEC a large number oflessees stated that the yearwise production details are not correctly c reflected in the statement. Some of them also stated that the environment clearance details are not properly reflected in the statement. Therefore, it was decided that (a) the State Government will reconcile the annual production and other details with the respective lessees and (b) the copies of the environmental clearances may also be filed before the CEC by those lessees who are c!isputing the environmental clearances details provided by the State. Accordingly a meeting was convened by the Director; Mines & Geology (DMG) with the lessees on 141h August, 2014 and during which the annual production and other details were reconciled. The reconciled leasewise and yearwise production and other details provided to the CEC by the State of Odisha may be seen in the statement enclosed at Annexure - R-11 to this Report. The figures modified in the said statement, after reconciliations, arc shown in bold print."

59Copy pinpoint59. The CEC noted that the Director, Mines and Geology of the F Government of Odisha had informed the CEC that each lease holder with the exception of SMPL and JSPL agreed with the reconciled production details. On facts, therefore, there is no dispute with regard to the contents of the report of the CEC, although the conclusions might be disputed. Separately, the CEC has dealt with the facts concerning G SMPL and JSPL pursuant to a meeting held with them on 11 mSeptember, 2014. Statutory provisions

60Copy pinpoint60. The grant of a mining lease is governed by the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (or H