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2018 Supreme(SC) 1126
SUPREME COURT OF INDIA
Madan B. Lokur, Deepak Gupta, JJ.
Common Cause – Petitioner
versus
Union of India & Ors. – Respondents
(IN RE: SARDA MINES PVT. LTD.)
I.A. No. 40 of 2015, I.A.No.42 of 2015, IA No.61 of 2015 in IA No.40 of 2015 and IA No.111989 of 2018 IN WRIT PETITON (C) NO. 114 OF 2014
Decided On : 12-11-2018
IMPORTANT POINTS
Environmental clearance is always prospective, it cannot be retrospective.
SMPL is liable to be penalised for extracting more iron ore than permitted.
Headnote:(a) Mines and Minerals (Development and Regulation) Act, 1957 – Though permission to mining granted to SMPL on 13th July, 1999 it could not so till 13/14 August, 2001 for want of renewal of mining lease only on 13/14 August, 2001 – Environmental clearance for extraction of iron ore (lump) granted on 22nd September, 2004 for expansion of production of iron ore as against permission granted on 13th July, 1999 for production of iron ore and not for iron ore (lump) – Act also referring to iron pre and not iron ore (lump) – Held, environmental clearance was granted to SMPL only related to the expansion of production of iron ore and not iron ore (lump).
(2017) 9 SCC 499 – Referred
(b) Mining and Environmental law – SMPL granted mining permission in 1999 for extraction/production of 1.4 LTPA iron ore – Lease renewed in 2001 for enhanced production subject to environmental clearance – Environmental clearance given in 2004 – The clearance is always prospective – Cannot be given retrospective effect to cover production since 2001 – a (Para 10, 11)
(2017) 9 SCC 499 – Relied upon
(c) Mining and Environmental law – Mining lease of SMPL renewed subject to environmental clearance with permission to increase production in a gradual manner over the years – Clearance grated in 2004 – First year would be 2004-05 – Production had to be limited to stipulated extent – SMPL producing more than stipulated – Liable to be penalized – Quantum of penalty to be decided by CEC. (Para 12, 13, 24)
(d) Mining law – SMPL granted permission in 1999 to extract iron ore (ROM) – Not referring to iron ore (lump) – MMDR Act also not referring to iron ore (lump) – Environment clearance for iron ore (lump) – Must be understood as permission to extract mineral iron ore ROM. (Para 18)
(2004) 6 SCC 281 – Relied upon
Facts of the case:
This case is concerned with what is described as “Illegalities involved in the mining lease of Sarda Mines Private Limited” by the Central Empowered Committee in its report of 16th October, 2014.
Facts already stated in Common Cause v. State of Orissa, (2017) 9 SCC 499.
The Court is concerned only with the validity of the environmental clearance granted to Sarda Mines Private Limited or SMPL and the production of iron ore without/in excess of the environmental clearance.
The Court is concerned only with the validity of the environmental clearance granted to Sarda Mines Private Limited and the production of iron ore without/in excess of the environmental clearance.
Finding of the Court:
Environmental clearance cannot be retrospective.
Result: Applications disposed of.
Key Points: - Environmental clearance is always prospective and cannot be given retrospective effect (!) (!) . - SMPL was permitted to extract iron ore (ROM) with a progressive gradation, ultimately reaching 4.0 MTPA, starting from the clearance date (!) (!) . - Production before the environmental clearance (from 13/14 August, 2001 to 22nd September, 2004) is legal only up to 1.4 LTPA based on the mining lease permission (!) (!) . - Any mining activity exceeding the environmental clearance limit is illegal and subject to penalty (!) (!) . - The environmental clearance must be interpreted in the context of the MMDR Act, which refers to mineral iron ore, not specifically iron ore (lump) (!) (!) . - The calculation of penalty for excess mining must account for the non-retrospective nature of the clearance (!) (!) .
What is the scope and operational date of the environmental clearance granted to SMPL?
What are the permissible limits of iron ore production authorized under the environmental clearance?
What is the consequence of excess iron ore production by SMPL in relation to the environmental clearance?
JUDGMENT
Madan B. Lokur, J.
1. In this batch of substantive applications, we are concerned with what is described as “Illegalities involved in the mining lease of Sarda Mines Private Limited” by the Central Empowered Committee in its report of 16th October, 2014.
2. It is not necessary to repeat all the facts leading up to these applications since the background has already been detailed by us in Common Cause v. State of Orissa, (2017) 9 SCC 499.
3. While dealing with the mining lease of Sarda Mines Private Limited, the Central Empowered Committee or the CEC concerned itself with seven issues. They are:
1. Regarding renewal of the mining lease.
2. Regarding validity of the Environmental Clearance.
3. Regarding sale of iron ore in the form of ROM by Sarda Mines Private Limited.
4. Regarding diversion of additional land for mining and allied activities
5. Regarding production of iron ore without/in excess of the Environmental clearance.
6. Regarding enquiry done by the State Government for alleged violation of Rule 37, MCR, 1960 [Mineral Concession Rules of 1960].
7. Regarding alleged ownership of the mining lease actually being with Jindal Steel and Power Ltd.
4. For the present, we are concerned only with the validity of the environmental clearance granted to Sarda Mines Private Limited or SMPL and the production of iron ore without/in excess of the environmental clearance. The concern relates to a mining lease granted to SMPL over 947.046 hectares of land for 20 years from 14th August, 2001 to 13th August, 2021. The mining lease is of Thakurani Mines, Block B, Village Soyabali, District Keonjhar in Odisha. We are not concerned with the validity or otherwise of the grant or renewal of the mining lease to SMPL.
Grant of permission to mine
5. It has been pointed out to us and this is not disputed, that SMPL was granted permission on 13th July, 1999 to extract 1,40,000 MT of iron ore per annum. The permission granted clearly indicates that it is in the context of reopening (to the extent of broken up area of 94.024 acres) the existing mine where the highest production was 1,39,802.00 MT during 1966 as certified by the Deputy Director (Mines). The said extraction or production was of iron ore and the permission granted in 1999 was also for extraction or production of iron ore. This was in accord with the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act) that permits mining of the mineral iron ore.
The permission granted on 13th July, 1999 reads as follows:
“Subject: Reopening of iron ore mines in Block-B in village Soyabali of Thakurani iron ore mines in District Keonjhar, Orissa - clarifications reg.
Sir,
This has reference to letter of 10th June, 1999 jointly from you and Shri M.L. Sarda seeking clarification on applicability of the provisions of the EIA Notification of 1994. We have noted the following:
(i) The Department of Steel and Mines, Government of Orissa has agreed to renew mining lease in respect of Block-B covering an area of 2340.20 acres in village Soyabali of the Thakurani iron ore mines in favour of Shri S.L. Sarda and Shri M.L. Sarda.
(ii) The entire lease area is in reserve forest for which de-reservation proposal has been forwarded by the DFO, Keonjhar to the PCCF, Bhubaneswar.
(iii) Already broken up area is 94.024 acres.
(iv) Highest production from Block-B mines was 1,39,802.00 MT during 1966 as certified by Dy. Director (Mines), Joda, Keonjhar in his letter No. 7892 dated 26.5.99.
(v) Applications have been submitted to Orissa State Pollution Control Board for obtaining “consent to operate” and IBM for approval of mining plan.
Further, it has been noted that you are planning to reopen the mine sometimes by the end of 1999 without change in broken up area and production level. Also there is no plan to modernise the mine. It has also been noted that wet drilling will b
