COMMON CAUSE versus UNION OF INDIA AND ORS.

49. 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 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 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) ! !

50. We have adverted to the reports of the Commission, without c 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

51. 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."

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 J 6th 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 ……… "

53. 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

54. 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 of India)' 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 '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 'T.N. Godavam1an v. Union oflndia, (2013) 8 SCC 198 and (2013) 8 SCC 204 COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] ,

55. 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 B 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.

56. In so far as the report given by the CEC on 16'h October, 2014 (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 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.

57. As far as the facts collected by the CEC are concerned, there ·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 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 c SUP~EME COURT REPORTS (2017] 13 S.C.R.

58. 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 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 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."

59. The CEC noted that the Director, Mines and Geology of the 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 SMPL and JSPL pursuant to a meeting held with them on 11 m September, 2014. Statutory provisions

60. The grant of a mining lease is governed by the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (or COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] the MMDR Act), the Mineral Concession Rules, 1960 (or the MCR) and the Mineral Conservation and Development Rules, 1988 (or the MCDR).

61. Section 4(1) of the MMDRAct provides that no person shall undertake any mining operation in any area except under and in accordance with the terms and conditions of a mining lease granted under the MMDRAct and the rules made thereunder. A mining operation is defined in Section 3(d) of the MMDRAct as meaning any operation undertaken for the purpose of winning any mineral. Section 4(2) of the MMDR Act provides that no mining lease shall be granted otherwise than in accordance with the provisions of the said Act and the rules made thereunder.

62. Section 5(2) of the MMDR Act provides for certain restrictions on the grant of a mining lease. It provides that the State Government shall not grant a mining lease unless it is satisfied that the applicant has c a mining plan duly approved by the Central Government or the State Government in respect of the concerned mine and for the development of mineral deposits in the area concerned.

63. Section 10 of the MMDR act provides for the procedure for obtaining a mining lease and sub-section (I) thereof provides that an application is required to be made for a mining lease in respect of any land in which the mineral vests in tlie government and the application shall be made to the State Government in the prescribed form and along with the prescribed fee.

64. Section 12 of the MMDRAct requires the State Government to maintain a set of registers. Among the registers that the State Government is required to maintain are a register of applications for mining leases and a register of mining leases. Every such register shall be open to inspection by any person on payment of such fee as the State Government may fix.

65. Section 13 of the MMDR Act provides for the rule making power of the Central Government in respect of minerals. The MCR are framed in exercise of power conferred by Section 13 of the MMDR Act.

66. Section 18 of the MMDRActmakes it the duty of the Central Government to take all such steps as may be necessary for the [2017] B S.C.R. conservation and systematic development of minerals in India and for the protection of the e11vironment by preventing or controlling any pollution which may be cansed by mining operations. The MCDR are framed in exercise of power conferred by Section 18 of the MMDRAct. c

67. The distinction between the MCR and the MCDR is that the MCR deal, inter a/ia. with the grant of a mining lease and not commencement of mining operations. However, the MCDR deal, inter alia. with the commencement of mining operations and protection of the environment by preventing and controlling pollution which might be caused by mining operations.

68. Sec~ion 21 of the MMDR Act deals with penalties and sub- section ( 1) theteof provides that whoever contravenes the provisions of sub-section (I) or sub-section (I A) of Section 4 shall be punished with imprisonment for a term which may extend to two years or with fine which may extend to Rs. 25,000 or with both. Sub-section ( 5) of Section 21 of the MMDR Act provides that whenever any person raises without any lawful authority, any mineral from any land, the State Government may recover from such person the minerals so raised or where such mineral has been disposed of the price thereof. In addition thereto the State Government may also recover from such person rent, royalty or tax, as the case may be for the period during which the land was occupied by such person without any lawful authority. Mineral Concession Rules, 1960

69. As far as the MCR are concerned, Rule 22 is of some importance and this provides for an application to be made for the grant of a mining lease in respect of land in which the mineral vests in the government. An application for the grant of a mining lease is required to be made by an applicant to the State Government in Form I to the MCR. Sub rule ( 5) of Rule 22 deals with a mining plan and it requires that a mining plan shall incorporate, amongst other things, a tentative scheme of mining and annual programme and plan for excavation for year to year for five years.

70. Rule 22A of the MCR makes it clear that mining operations shall be undertaken only in accordance with the duly approved mining plan. Therefore, a mining plan is of considerable importance for a mining lease holder and is in essence sacrosanct. A mining scheme and a mining plan are a sine qua non for the grant of a mining lease. COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.]

71. Rule 27 of the MCR deals with the conditions that every mining lease is subject to. One of the conditions is that the lessee shall comply with the MCDR.

72. The format of a mining lease is given in Form K to the MCR and this is relatable to Rule 31 of the MCR which provides that on an application for the grant of a mining lease, if an order has been made for the grant of such lease, a lease deed in Form K or in a form as near thereto as circumstances of each case may require, shall be executed within six weeks of the order, or within such extended period as the State Government may allow.

73. Part VII of Form K deals with the covenants of the lessee/ c lessees. Clause 10 thereof requires the lessee to keep records and accounts regarding production and employees etc. The lessee is required, inter alia, to maintain a record of the quantity and quality of the mineral released from the leased land, the prices and all other particulars of all sales of the mineral and such other facts, particulars and circumstances, as the Central Government or the State Government may require.

74. Clause 11 C is of some importance and it requires that the lessee shall take measures for the protection of the environment like planting of trees, reclamation ofland, use of pollution control devices and such other measures a~ may be prescribed by the Central Government or the State Government from time to time at the expense of the lessee.

75. Rule 37 of the MCR deals with the transfer of a lease and provides, inter alia, that a mining lessee shall not without the previous consent in writing of the State Government or the Central Government, as the case may be, assign, sublet, mortgage, or in any other manner, transfer the mining lease, or any right, title or interest therein. The lessee shall not enter into or make any bona fide arrangement, contract or understanding whereby the lessee will or may directly or indirectly be financed to a substantial extent in respect ofits operations or undertakings or be substantially controlled by any person or body of persons. Sub- rule (3) ofRule 37 of the MCR enables a State Government to determine any lease ifthe mining lessee has committed a breach of Rule 37 of the MCR or has transferred any lease or any right, title or interest therein otherwise than in accordance with sub-rule (2) of Rule 37 of the MCR. Mineral Conservation and Development Rules, 1988

76. The MCDR promulgated under Section 18 of the MMDR Act and referred to in Rule 27 of the MCR are also of some significance. c Rule 9 of the MCDR prescribes that no person shall commence mining operations in any area except in accordance with a mining plan approved under Clause (b) of sub-section (2) of Section 5 of the MMDRAct.

77. The mining plan may be modified in terms of Rule 10 of the MCDR in the interest of safe and scientific mining, conservation of minerals or for protection of the environment. However, the application for modificatiojls shall set forth the intended modifications and explain the reasons for $uch modifications. The mining plan cannot be modified just for the asking.

78. Rule 13 of the MCDR provides that mining operations are required to be carried out by every holder of a mining lease in accordance with the approved mining plan. If the mining operations are not so carried out, the mining ©perations may be suspended by the Regional Controller of Mines in the Indian Bureau of Mines or another authorized officer.

79. From our point of view, Chapter V of the MCDR dealing with "Environment" is of significance. In this Chapter, Rule 31 of the MCDR provides that every holder of a mining lease shall take all possible precautions for the protection of the environment and control of pollution while conducting any mining operations in the area.

80. Rule 37 of the MCDR requires certain precautions to be taken against air pollution and obliges the mining lease holder to keep air pollution under control and within permissible limits specified under various environmental laws including the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986.

81. Rule 38 of the MCDR requires the holder of a mining lease to take all possible precautions to prevent or reduce the passage of toxic and objectionable liquid effluents from the mine into surface water bodies, ground water aquifer and usable lands to a minimum. It also mandates effluents to be suitably treated, ifrequired, to conform to the standards laid down in this regard. In other words, the provisions of the Water (Prevention and Control of Pollution) Act, 1974 are required to be adhered to by the mining lease holder.

82. Rule 41 of the MCDR requires every holder of a mining lease to carry out mining operations in such a manner as to cause least damage to the flora of the area and the nearby areas. Every holder of a mining lease is required to take immediate measures for planting not less than twice the number of trees destroyed by reason of any mining operations COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] and to look after them during the subsistence of the lease after which these trees shall be handed over to the State Forest Department or any other appropriate authority. The holder of a mining lease is also required to restore, to the extent possible, other flora destroyed by the mining operations.

83. Briefly therefore, the overall purpose and objective of the MMDR Act as well as the rules framed there under is to ensure that mining operations are carried out in a scientific manner with a high degree of responsibility including responsibility in protecting and preserving the environment and the flora of the area. Through this process, the holder of a mining lease is obliged to adhere to the standards laid down under the Environment (Protection) Act, 1986 or the EPA as well as the laws pertaining to air and water pollution and also by necessary implication, the provisions of the Forest (Conservation) Act, 1980 (for short 'the FC Act'). Exploitation of the natural resources is ruled out. If the holder of c a mining lease docs not adhere to the provisions of the statutes or the rules or the terms and conditions of the mining lease, that person is liable to incur penalties under Scction21 of the MMDRAct. In addition thereto, Section 4A of the MMDRAct which provides for the termination ofa mining lease is applicable. This provides that where the Central Government, after consultation with the State Government is of opinion that it is expedient in the interest of regulation of mines and mineral development, preservation of natural environment, prevention of pollution, etc. then the Central Government may request the State Government to prematurely terminate a mining lease. Environment Impact Assessment Notification of 27•• January,

84. As can be seen from the statutory scheme adverted to above, protection and preservation of the environment is a significant and integral component of a mining plan, a mining lease and mining operations – and rightly so.

85. Keeping this in mind, an Environment Impact Assessment Notification dated 27'h January, 1994 was issued by the Central Government in exercise of powers conferred by Section 3(1) and Section 3(:2j(v) of the EPA read with Rule 5(3)(d) of the Environment (Protection) Rules, 1986. The Environment Impact Assessment Notification dated 27"' January, 1994 (for short 'EIA 1994') is a prohibitory notification and directs that on and from the date ofits publication in the official gazette: c SUPI{EME COURT REPORTS (2017] 13 S.C.R. (i) expansion or modernization ofany activity (if pollution load is to exceed the existing one) and (ii) a new project listed in Schedule I to the notification, shall not be undertaker. unless it has been accorded environmental clearance (for short EC) by the Central Government in accordance wit!i the procedure specified in the notification.

86. The notification provides, among other things, that in case of mining operations, site clearance shall be granted fora sanctioned capacity and shall be valid for a period of five years from commencing mining operations. What this means is that on receipt of an EC a mining lease holder can extrru;t a mineral on! y from a specified site, up to the sanctioned capacity and only for a period of five years from the date of the grant of an EC. This is regardless of the quantum of extraction permissible in the mining plan or the mining lease and regardless of the duration of the mining lease. Consequently, a mining lease holder would necessarily have to obtain a fresh EC every five years and can also apply for an increase in the sanctioned capacity. There is no concept of a retrospective EC and its validity effectively starts only from the day it is granted. Thus, the EC takes precedence over the mining lease or to put it conversely, the mining operations under a mining lease are dependent on and 'subordinate' to the EC.

87. On 4" May, 1994 an Explanatory Note was added to EIA 1994. We are concerned with the I" Note which deals with the expansion and modernization of existing projects. This reads as follows: "l. Expansion and mcl:i.ernization of existing projects A project proponent is required to seek environmental clearance for a proposed expansion/modernization activity if the resultant pollution load is to exceed the existing levels. The words "pollution load" will in this context cover emissions, liquid effluents and solid or semi-solid wastes generated. A project proponent may approach the concerned State Pollution Control Board (SPCB) for certifying whether the proposed modernization/expansion activity as listed in Schedule-I to the notification is likely to exceed t.'1e existing pollution load or not. Ifit is certified that no increase is likely to occur in the existing pollution load due to the proposed expansion or modernization, the project proponent will not be required to seek environmental clearance, but a copy of such certificate issued by the SPCB will have to be submitted to the COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR J.] Impact Assessment Agency (IAA) for information. The IAA will however, reserve the right to review such cases in the public interest if material facts justifying the need for such review come to light."

88. The Note is significant and from its bare reading it is clear that if any proposed expansion or modernization activity results in an increase in the pollution load, then a prior EC is required. The project proponent should approach the concerned State Pollution Control Board (for short the SPCB) for certifying whether the proposed expansion or modernization is likely to exceed the existing pollution load ornot. If the pollution load is not likely to be exceeded, the project proponent will not be required to seek an EC but a copy of such a certificate from the SPCB will require to be submitted to the Impact Assessment Agency which can review the certificate.

89. What is the requirement, if any, under EIA 1994 with regard c to an existing mining lease where there is no proposal for expansion or modernization? Does such a mining lease holder require an EC to continue mining operations? This is answered in the 8" Note which is also of some importance and this reads as follows: "8. Exemption for projects already initiated For projects listed in Schedule-I to the notification in respect of E which required land has been acquired and all relevant clearances of the State Government including NOC from the respective State Pollution Control Boards have been obtained before 27" January, 1994, a project proponent will not be required to seek . environmental clearance from the !AA. However those units who have not as yet commenced production will inform the !AA."

90. The above Note makes it clear that existing mining projects that have a no objection certificate from the SPCB before 27" January, 1994 will not be required to obtain an EC from the Impact Assessment Agency. Of conrse, this is subject to the substantive portion ofEIA 1994 and the I "Note. However, ifthe existing mining project does not have a no objection certificate from the SPCB, then an EC will be required under EIA 1994.

91. Two questions immediately arise from a reading of the I" and the 8"' Note. The first question is: What is the base year for considering c the pollution load while proposing any expansion activity? The second question is: What is the duration for which an EC is not necessary for an ongoing project which does not propose any expansion, or to put it differently, what is the validity period for a no objection certificate from the SPCB?

92. In our opinion, as far as the first question is concerned, a reading of ETA 1994 read with the l" Note implies that the base year would need to be the immediately preceding year that is 1993-94. This is obvious from the opening sentence of the I'' Note, that is, "A project proponent is required to seek environmental clearance for a proposed expansion/modernization &etivity ifthe resultant pollution load is to exceed the existing levels." (Emphasis supplied). In its report, the CEC has taken 1993-94 as the base year and we see no error in this. Even the MoEF in its circular dated 28"' October, 2004 stated with regard to the expansion in production: "If the annual production of any year from 1994-95 onwards exceeds the annual production of 1993-94 or its preceding years (even if approved by IBM), it would constitute expansion." If th~t expansion results in an increase in the pollution load over the existing levels, then an EC is mandated.

93. It was contended on behalf of the mining lease holders that in terms of the circular of28'h October, 2004 the annual production even prior to 1993-94 could be considered for ascertaining if there was an expansion or not. We cannot accept this submission for a variety of reasons. For one, the existing levels mentioned in the I" Note clearly have reference to the immediately preceding year and not to a preceding year in a comparatively remote past. Secondly, a very high annual production in any one year is not reflective of a consistent pattern of production – it could very well be a freak year and that freak year certainly cannot be a basic standard or the norm to measure expansion. Then ifthe interpretation sought to be given is accepted, ihere would be an absence of consistency and a lack of uniformity with different mining lease holders having different base years. This is hardly conducive to G good governance. Finally, EIA 1994 was intended to prevent the existing environmental load from increasing based on the existing data of the immediate past and not data of a few years gone by. We may add that the only exception that could be made in this regard would be if there is no production during 1993-94. In that event, the immediately preceding year would be relevant and that is the only reasonable interpretation that we see for the use of the words "or its preceding years". COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.]

94. On the question of the duration or exemption period from an EC in respect of a project that has commenced prior to 27"' January, 1994 the substantive portion of ETA 1994 and the 8th Note grant an exemption from the requirement ofobtaining an EC if there is no expansion and the existing pollution load is not exceeded. In any event, a no objection certificate from the SPCB is necessary for continuing the mining operations. Consequently, even if any mining lease holder does not have an EC or does not require an EC for continuing mining operations (but has a no objection certificate from the SPCB), the absence of an EC would not have an adverse impact on the mining lease holder unless of course, there was an expansion in the mining operations without any certificate from the SPCB. In addition to this, the validity period (if any) of the certificate from the SPCB is important – we have not been made aware whether there is such a validity period or not.

95. The contention oflearned counsel for the mining lease holders that ETA 1994 was rather vague, uncertain and ambiguous cannot be accepted. In our opinion, on a composite reading ofEIA 1994, it is clear that: (i) A no objection certificate from the SPCB was necessary for continuing mining operations; (ii) An expansion or modernization activity required an EC unless the pollution load was not exceeded beyond the existing levels; (iii) The base year for determining the pollution load and therefore the proposed expansion would be with reference to 1993-94; (iv) Whether an expansion or modernization would lead to exceeding the existing pollution load or not would require a certificate from the SPCB which could be reviewed by the IAA; (v) New projects require an EC; and (vi) Existing projects do not require an EC unless there is an expansion or modernization for the duration (if any) of the validity of the certificate from the SPCB. We need not say anything 11).ore on this subject since the CEC has proceeded to discuss the issue of mining in excess of the EC or in excess of the mining plan only from the year 2000-01 onwards. The prior period may, therefore, be ignored and it is the period from 2000-01 onwards which is actually relevant for the present discussion.

96. It was submitted by learned counsel for the mining lease holders that the MoEF had caused some confusion with regard to the requirement of an EC at the time of renewal of a mining lease. In this connection, reference was made to a Press Note of July 1994 and a letter dated 19"' June, 1997 of the MoEF to the Chief Conservator of Forests in the MoEF. c

97. Learned counsel forthe mining lease holders sought to buttress their submission that EIA 1994 was vague and ambiguous by mentioning two circulars i$sued by the MoEF on 5th November, 1998 and 27th December, 200@ extending the period for obtaining an EC for new units. However, these' circulars are apparently not on our record (which goes into 148 volumi:s) and therefore we cannot make any comment about them. These circulars were mentioned to also contend that even for new units the absence of an EC would not have an adverse impact on them, since the period for obtaining an EC was extended from time to time. A reference was also made to a circular dated J 4th May. 2002 which later on became the subject of consideration by this Court in M. C Mehta v. Union of India.• A reading of the circular of J4th May, 2002 indicates that several units had come up in violation ofEIA 1994. The MoEF had taken the view that such units may be permitted to apply for an EC by 31" March, 1999 which was then extended to 30th June, 2001 by circulars dated 5'" November, 1998 and 27th December, 2000 respectively.

98. By tlie circular dated J 4th May, 2002 the deadline for applying for an EC was extended up to 31" March, 2003 as a last and final opportunity to obtain an ex post facto EC in respect of units which had commenced mining operations without obtaining a prior EC in violation ofEIA 1994. The circular also stated that: "Suitable directions shall be issued by all States/UTs under the Environment (Protection) Actto units to stop construction activities/operations of all such units that fail to apply for environmental clearance by 31" March, 2003. Units which fail to comply with these directions shall be proceeded against forthwith under the relevant provisions of the Environment (Pl Act, 1986 without making reference to this Ministry."

99. It was submitted that in view of these ambiguous and unclear signals emanating from the MoEF which resulted in confusion being worse confounded, the mining lease holders were not clear whether or not they were required to obtain an EC particularly in respect of pre- EIA 1994 mining leases and operations.

100. As mentioned above, these dates and the text of the circulars were emphasized by learned counsel for the lease holders to contend that it was not obligatory for the mining lease holders, who did not expand their mining operations, to obtain an EC and in any event the period for '(2004)12SCCll8 COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR J.] obtaining an EC was extended till 31" March, 2003 with ex post facto approval. In this context, reliance was placed on M.C. Mehta referred to above.

101. We are not in agreement with the contention oflearned counsel for the mining lease holders on the interpretation given to the various circulars for the reasons given above and must also correctly appreciate the decision of this Court inM.C. Mehta.

102. In M.C. Mehta the issue that arose for consideration was whether mining activity in the Aravalli hills causes environmental degradation and what directions are required to be issued. While considering this issue, this Court also considered EIA 1994 and the circular c dated 14'h May, 2002. In doing so, this Court categorically held in paragraph 37 of the Report that the intention of the MoEF was not to legalize the continuance of mining activity without complying with the requisite stipulations. If that were unfortunately so, then it would demonstrate a lack of sensitivity of the MoEF to the principles of sustainable development and the object behind issuing EIA 1994. This Court said: "It does not appear that MOEF intended to legalise the commencement or continuance of mining activity without compliance of stipulations of the notification. In any case, a statutory notification cannot be notified [modified] by issue of E circular. Further, ifMOEF intended to apply this circular also to mining activity commenced and continued in violation of this notification, it would also show total non-sensitivity ofMOEF to the principles of sustainable development and the object behind the issue of notification. The circular has no applicability to the mining activity."

103. Adverting to the MMDR Act, this Court expressed the view in paragraph 52 of the Report thatthe approval ofa mining plan does not imply that a mining lease holder can commence mining operations. The mining lease holder is nevertheless obliged to comply with statutory provisions including the EPA and other laws. It was said: "The grant of permission for mining and approving mining plans and the scheme by the Ministry of Mines, Government of India by itself does not mean that mining operation can commence. It cannot be accepted that by approving mining plan and scheme c by the Ministry of Mines, the Central Government is deemed to have approved mining and it can commence forthwith on such approviil ……. A mining leaseholder is also required to comply with o~her statutory provisions such as the Environment (Protection) Act, 1986, the Air (Prevention and Control of Pollution) Act, 1981, the Water (Prevention and Control of Pollution) Act, 1974 and the Forest (Conservation) Act, 1980. Mere approval of the mining plan by the Government of India, Ministry of Mines would not absolve the leaseholder from complying with the other provisions."

104. This Court also considered the question of the applicability ofEIA 1994 to the renewal of an existing mining lease. It was held that the said notification would apply to the renewal of a mining lease that came up for consideration post 27ili January, 1994. In other words, for the renewal of a mining lease, an EC was required by the mining lease holder. It was held in paragraph 77 of the Report: "We are unable to accept the contention that the notification dated 27•1-1994 would not apply to leases which come up for consideration for renewal after issue of the notification. The notification mandates that the mining operation shall not be undertaken in any part of India unless environmental clearance by the Central Government has been accorded. The clearance under the notification is valid for a period of five years. In none of the leases the requirements of the notification were complied with either at the stage of initial grant of the mining lease or at the stage of renewal. Some of the leases were fresh leases granted after issue of the notification. Some were cases of renewal. No mining operation can commence without obtaining environmental impact assessment in terms of the notification."

105. It is clear from the decision rendered by this Court that EIA 1994 is mandatory in character; that it is applicable to all mining operations – expansion of production or even increase in lease area, modernization G of the extraction process, new mining projects and renewal of mining leases. A mining lease holder is obliged to adhere to the terms and conditions of a mining lease and the applicable laws and the mere fact that a mining plan has been approved does not entitle a mining lease holder to commence mining operations. In M. C Mehta this Court concluded that EIA 1994 is clearly applicable to the renewal ofamining lease. COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] I 06. Subsequent to the decision inM.C. Mehta two clarificatory circulars were issued by MoEF on 28" October, 2004 and 251h April, 2005. These were adverted to by learned counsel for the mining lease holders but in our opinion they are not relevant except to the extent that they make it explicit that following the decision of this Court in M. C. Mehta, an EC is required to be obtained before the renewal of a mining lease and that the term 'expansion' would include an increase in production or the lease area or both. 107. It was submitted on behalf of the mining lease holders that the possibility of getting an ex post facto EC was a signal to the mining lease holders that obtaining an EC was not mandatory or that if it was not obtained, the default was retrospectively condonable. We do not agree. We have referred to various provisions of the MMDR Act and the rules framed thereunder to indicate the statutory importance given c to the protection and preservation of the environment. This was also emphasized in M. C. Mehta in which it was also stated that "It does not appear that MOEF intended to legalise the commencement or D continuance of mining activity without compliance of stipulations of the notification." It appears to us that the MoEF was, in a sense, cajoling the mining lease holders to comply with the law and EIA 1994 rather than use the stick. That the mining lease holders chose to misconstrue the soft implementation as a licence to not abide by the requirements of the law is unfortunate and was an act of omission or commission by them at their own peril. We cannot attribute insensitivity to the MoEF or even to the mining lease holders to environment protection and preservation, but at the same time we cannot overlook the obligation of everyone to abide by the law. That the MoEF took a soft approach cannot be an escapist exc~se for non-compliance with the law or EIA 1994. Environment Impact Assessment Notification of 141• September, 2006 I 08. On J 4th September, 2006 another EIA Notification was issued by the MoEF. This notification (for short EIA2006) required prior EC for projects or activities mentioned in the Schedule to it both for major as well as minor minerals if the leased area is 5 hectares or more. We were informed that several mining lease holders, in compliance with EIA2006, applied for and were granted an EC. 109. It was submitted by learned counsel for the mining lease holders that the confusion, vagueness and uncertainty caused by EIA 1994 and subsequent circulars and other communications did. not end c with the issuance of EIA 2006. Reference was made to a circular dated 13'" October, 2006 which deals with interim operational guidelines till 13'" September, 2007 in respect of applications made under EIA 1994. We do not see' the relevance of this circular (which really dealt with transitional is~ues) not only for the reason given in M.C llfehta that circulars cannot override statutory notifications but also because it deals with the procedure for considering applications made under ETA 1994. 110. Reference was also made to a circular dated 2"' July, 2007. The passage relied upon reads as follows:- "It is clarified that all such mining projects which did not require environmental clearance under the ETA Notification, 1994 would continue to operate without obtaining environmental clearance till the mining lease falls due for renewal, ifthere is no increase in lease area and/or there is no enhancement of production. Jn the event of any increase in lease area and or production, such projects would need to obtain prior environmental clearance. Further, all such projects which have been operating without any environmental clearance would obtain environmental clearance at the time of their lease renewal even if there is no increase either in terms oflease area or production." 111. The aforesaid circular relates to three categories that is: (i) Mining leases, where no EC was required under ETA 1994 would continue to operate without an EC; (ii) If there was an increase in the lease area or enhancement of production, an EC was required by the mining lease holder; (iii) All projects would require au EC at the time ofrenewal of the mining lease even if there was no increase in the lease area or enhancement of production. 112. Reference was also made to an Office Memorandum dated 19'" August, 20 I 0. However a reading of this document brings out that it basica!Jy relates to construction at site but makes it clear that no activity relating to any project covered under EIA 2006 including civil construction could be undertaken without obtaining a prior EC except fencing of the site to protect it from getting encroached and construction of temporary sheds for the guards. Il3. Reference was also made to Office Memorandums dated 16'" November, 2010 and 12"' December, 2012 but having gone through them we find them of little relevance as they deal with procedural issues only. COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] 114. All that we need to say on this subject is that there is no confusion, vagueness or uncertainty in the application ofElA 1994 and ElA 2006 insofar as mining operations were commenced on mining leases before 27'h January, 1994 (or even thereafter). Post ElA 2006, every mining lease holder having a lease area of 5 hectares or more and undertaking mining operations in respect of major minerals (with which we are concerned) was obliged-to get an EC in tenns of EIA 2006. 115. An attempt was then made by learned counsel for the mining lease holders to get out of the rigours of ElA 1994 and ElA 2006 by contending that some of them had modified the mining plan (with approval) and that therefore they had extracted iron ore or manganese ore, as the c case may be, in tenns of the mining plan but not necessarily in tcnns of the EC that had been obtained, if at all. 116. We have already held that a mining plan is subordinate to the EC and in M. C. Mehta it was held by this Court that having an approved mining plan docs not imply that a mining lease holder can commence mining operations. That being so, a modified mining plan without a revised or amended EC, is of no consequence. What the contention of learned counsel suggests to us is that under the shield of a modified mining plan, illegal or unlawful mining in the fonn of mining without an EC, mining by over-reaching EIA 1994 and ElA 2006 was being carried out. 117. The contention apart, the subterfuge of obtaining a modified mining plan to get over the adverse effects of excess and illegal or unlawful production ofiron ore or manganese ore was deprecated by the Ministry of Mines of the Government of India. In a letter dated 29'h October, 20 I 0 addressed to the Controller General, Indian Bureau of Mines it was pointed out that State Governments had expressed a concern that the Indian Bureau of Mines (IBM) had been modifying mining plans for allowing an increase in production of ore without adequate intimation to the State Governments. A concern was raised that such a revision was often being used to increase production of ore, which is sometimes not accounted for in mining operations in the concerned mining lease. It was made. clear that all modifications of mining plans shall be effective prospectively only and earlier instances of irregular mining shall not be regularized through a modification of the mining plan. 118. hi a subsequent letter dated 12"' December, 2011 addressed to the Chief Secretary in the Government of Orissa the said Ministry of Mines noted that there were violations of the actual production limit laid 'J .. c (2017] 13 S.C.R. down in the mining plan and that the State Government had finally taken steps to curb illegal mining in respect of over-production of minerals. There was a reference to suggest (and we take it to be so) that 20% deviation from the mining plan (in terms of over-production) would be reasonable and permissible. However, it appears from a reading of the communication that illegal mining was going on beyond the 20% deviation limit and that appropriate steps were ueeded to curb these violations. Learned counsel for the petitioners submitted that such egregious violations must be firmly dealt with by cancellation or termination of the mining lease and a soft approach is not called for. 119. In (his context, it is worth noting that a High Level Committee (called the Hocla Committee) on the National Mineral Policy noted in its Report dated 212"' December, 2006 in paragraph 3.47 as follows : "3.47 An EMP (Environment Management Plan] has to be prepared under the MCDR and got approved by IBM. However, this EMP is not acceptable to the MoEF. The miner has to prepare two EMPs separately – one for IBM and another for MoEF. The Committee suggests that IBM and MoEF should prepare guidelines for a composite EMP so that IBM can approve the same in consultation with MoEF's field offices. This will eliminate anomalous situations where increase of even a few tonnes in production requires project authorities to get a fresh EMP approved from the MoEF although the IBM allows a grace of ±I 0% per cent, keeping in view the fluctuations in the market situation and process complexities. If a single EMP is accepted in principle such anomalies can be resolved in advance. The Committee feels the MoEF should also have a cushion of± I 0% per cent in production while giving EIA clearance." 120. The above passage indicates that the permissible variation in production as per the Indian Bureau of Mines is ±10% but according to the letter dated I 2th December, 20 I I issued by the Ministry of Mines, the reasonable variation limit could be +20%. It is not clear why there was a shift in the variation, but as rightly pointed out by learned counsel for the petitioners, the fact that in some cases the variation exceeded 20% was a cause for concern which necessitated strict and punitive action. 121.A submission was made by learned counsel for the mining lease holders to the effect that since many of them had been granted the COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR. J.] first deemed statutory renewal of the mining lease under Rule 24A of A the MCR, the requirements of EIA 1994 would not be applicable. We were shown various amendments made to Rule 24A of the MCR from time to time particularly the amendments made on 10'' February, 1987, 7th January 1993, 27'' September, 1994, 17'' January, 2000, ] 8th July, 2014 and 8'' October, 2014. In our opinion, none of these are of any consequence, the reason being that for the purposes of renewal of the mining lease, an application is required to be made by the mining lease holders and the deemed renewal clause under Rule 24A of the MCR will come into operation only after an application for renewal is made in Form Jin Schedule I of the MCR. Under Rule 26 of the MCR, the State Government may refuse to renew the mining lease. That apart, the position in environmental jurisprudence with regard to the renewal of a mining lease has been made explicit by this Court in M.C. Mehta. Even otherwise, in view of EIA 1994, it is quite clear that the renewal of a mining lease would require a prior EC. 122. We may also draw attention in this regard to a circular dated D 28'' October, 2004 issued by the MoEF wherein it was stated that in view of the decision in M.C. Mehta all mining projects of major minerals of more than 5 hectares lease area that had not yet obtained an EC · would have to do so at the time of renewal of the lease. 123. Finally, it was submitted that whenever an EC is granted, it would have retrospective effect from the date of the application for grant of an EC. In this context, it was pointed out that there were enormous delays in granting an EC and that the Hoda Committee had noted with reference to EIA 2006 that if all goes well, the grant of an EC talces about 232 days whereas the international norm is that an EC is granted within six months or 180 days. According to the additional affidavit filed by some mining lease holders, the period of232 days mentioned by the Hoda Committee was actually a conservative estimate and that in fact it takes anything upto 390 days for the grant of an EC. It was submitted that the position was even worse under EIA 1994 since the MoEF rarely showed any urgency in the grant of an EC. Examples were cited before us to show that in some instances the grant of an EC took m0re than two years. Taking all this into consideration it was submitted that it would be more appropriate that the EC is given retrospective effect from the date of the application. 124. We are not in agreement with learned counsel for the mining lease holders. There is no doubt that the grant of an EC cannot be taken as a mechanical exercise. It can only be granted after due diligence and reasonable care since damage to the environment can have a long term impact. EIA 1994 is therefore very clear that if expansion or modernization of any mining activity exceeds the existing pollution load, a prior EC is necessary and as already held by this Court in M. C B Mehta even for the renewal of a mining lease where there is no expansion or modernization of any activity, a prior EC is necessary. Such importance having been given to an EC, the grant of an ex post facto environmental clearance woul¢1 be detrimental to the environment and could lead to irrepara hie degtladation of the environment. The concept of an ex post facto or a retr¢>spective EC is completely alien to environmental jurisprudence iQ.cluding EIA 1994 and EIA 2006. We make it clear that an EC will come into force not earlier than the date of its grant. Illegal Mining 125. A question raised by learned counsel for the mining lease holders concerned the interpretation of the expression 'illegal mining'. Reliance was placed on the report of the CEC which refers to Ru le 2(iia) of the MCR to conclude that the violation of any rule within the mining lease area would not come within the definition of' illegal mining' except where there has been a violation of the rules framed under Section 23C of the MMDRAct. According to the CEC: " 17. Ill~gal mining has been defined as mining operations undertal<ien by any person in any area without holding a mining lease. It does not include violation of any rules within the mining lease area except the Rules made under Section 23C of the MMDR Act, 1957. The mining lease area shall be considered as an area held with lawful authority by the lessee (refer Rule 2(iia), MCR, 1960)." 126.As can be seen from the above, there isa difference ofopinion between the CEC and the Commission on what is illegal mining or mining without lawful authority and we will give our views oJl the subject. 127. According to the lessees a mining operation only outside the mining lease area would constitute 'illegal mining' making illegal mining lease centric. We are unable to accept this narrow interpretation given by the CEC and relied upon by learned counsel for the mining lease holders. COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] 128. The simple reason fornot accepting this interpretation is that Rule 2(ii a) of the MCR was inserted by a notification dated 26" July, 2012 while we are concerned with an earlier period. That apart, as mentioned above, the holder of a mining lease is required to adhere to the terms of the mining scheme, the mining plan and the mining lease as well as the statutes such as the EPA, the FCA, the Water (Prevention and Control of Pollution) Act, 1974 and theAir (Prevention and Control of Pollution) Act, 1981. If any mining operation is conducted in violation of any of these requirements, then that mining operation is illegal or unlawful. Any extraction of a mineral through an illegal or unlawful mining operation would become illegally or unlawfully extracted mineral. 129. It is not, as suggested by learned counsel, that illegal mining is confined only to mining operations outside a leased area. Such an activity is obviously illegal or unlawful mining. Illegal mining takes within its fold excess extraction of a mineral over the permissible limit even within the mining lease area which is held under lawful authority, ifthat excess extraction is contrary to the mining scheme, the minillg plan, the mining lease or a statutory requirement. Even otherwise, it is not possible for us to accept the narrow interpretation sought to be canvassed by learned counsel for the mining lease holders particularly since we are dealing with a natural resource which is intended for the benefit of everyone and not only for the benefit of the mining lease holders. Encroachments 130. Section 4(1) of the MMDRAct makes it clear that no person· can carry out any mining operations except under and in accordance with.the terms and conditions of a mining lease granted under the MMDR Act and the rules made thereunder. Obvionsly therefore, any person carrying on mining operations without a mining lease, is indulging in illegal or unlawful mining. This would also necessarily imply that if a mining lease is granted to a person who carries out mining operations outside the boundaries of the mining lease, the mineral extracted would be the result ofillegal or unlawful mining. 131. In its report, the CEC has dealt with illegal mining outside the sanctioned mining areas. It is stated that 82 mining leases for iron ore and manganese ore were identified by the Commission where there were encroachments in the form of illegal mining pits, illegal over-burden dumps etc. c c 132. In respect of these 82 mining leases, the State of Odisha appointed a Committee on the suggestion of the Commission, to survey and identify the exact extent and location of the sanctioned lease area, lease area under occupation of the mining lease holder and the area under encroachment/illegal mining. The Committee or the Joint Survey consisted of offi~ers of the Revenue Department, Forest Department and Mining Dep~rtment of the State of Odisha who carried out a field survey in respect of39 mining leases. The findings of the field survey or the Joint Survey were verified by a team comprising of the Director Mines, Chief Engineer, ORSAC and the Additional Secretary, F & E Department of the Government of Odis ha. 133. It is mentioned in the report of the CEC that the Joint Survey for each of the 39 mining leases is technically sound and reliable. However, in respect of some of the leases, it would be desirable for the State Government to take another look at the results of the field survey. Unfortunately, the CEC has not identified these mining leases that require another look. Be that as it may, the fact is that a joint survey has not been conducted in respect of 43 mining leases. 134. We are of the view that for completing the record and taking the report of the CEC to its logical conclusion, it would be appropriate if a fresh Joint Survey is conducted by concerned officers of the Government of Odisha from the Revenue Department, the Forest Department, the Mining Department and any other department that may be deemed necessary. The Forest Survey of India, the MoEF, the Indian Bureau of Mines and the Geological Survey of India should also be associated in the Joint Survey. In our opinion, it would also be appropriate if the CEC is also associated in the Joint Survey and the best and latest technology should be made use ofincluding satellite imagery and thereafter a report is submitted in this Court on or before 31" December, 20 I 7 after hearing the 82 lessees identified by the Commission. Adherence to the mining plan 135. A side issue raised by learned counsel for the mining lease holders in this regard was the necessity (if any) of adhering to the annual plan or calendar plan of mining. It was contended that a mining lease holder could mine in excess of the annual plan. While it is so, this submission must be tempered and appreciated in the proper context. A mining plan is valid for a period of five years but there could be a 20% variation in extraction over and above the mining plan. This is the COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR J.] maximum that is stated to be reasonably permissible according to the Ministry of Mines. In terms of Rule 22(5) of the MCR a mining plan shall incorporate .a tentative scheme of mining and annual program and plan for excavation from year to year for five years. At best, there could be a variation in extraction of 20% in each given year but this would be subject to the overall mining plan limit of a variation of 20% over five years. What this means is that a mining lease holder cannot extract the five year quantity (with a variation of 20%) in one or two years only. The extraction has to be ·staggered and continued over a period of five years. If any other interpretation is given, it would lead to an absurd situation where a mining lease holder could extract the entire permissible quantity under the mining plan plus 20% in one year and extract miniscule amounts over the remaining four years, and this could be done without any reference to the EC. The submission of learned counsel in this regard simply cannot be accepted. 136. In the letter dated I 2'h December, 2011 sent by the Secretary c in the Ministry ofMines of the Government oflndia to the Chief Secretary of the Government of Odisha (adverted to above) concerning violation of annual production limit laid down in the approved mining plan, it was stated, inter a/ia, that an analysis of production and violations in I 04 mining leases for bulk minerals in the last ten years was undertaken by the Indian Bureau of Mines. It was noted that in 71 cases there was excess ore produced beyond the reasonable variation limit of 20%. It was noted that this was partly due to the failure of the State machinery to restrict the movement of minerals. 137. In a further letter dated 5'" September, 2012 it was reiterated that any violation of the mining plan or the mining scheme noticed by the State Government should be immediately brought to the notice of the Indian Bureau of Mines to initiate suitable action. It was reiterated that transit passes to such mines should not be issued by the State Government so as to stop any additional outgo. It was added: "Needless to say any revision on the limits of production is subjected to statutory clearances under Environment an.dForest laws. Having said that, the State Mining and Geology officials should not also lose focus on taking stringent action against any instances of illegal mining, ~ndertaken outsid~ the leased area, and passed off as excess production." It is quite clear from the correspondence placed before us that as far as the Union of India is concerned, any violation of the requirements of the law has to be firmly dealt with. c 138. With reference to the interpretation of Section 21(5) of the MMDRAct (which we shall soon consider) it was stated as follows: "Section 21 (5) ofMMDRAct is clearly applicable on such land which is occupied without lawful authority. It is clarified that in the context ofMMDR Act, 1957, violations pertaining to mining operations within the mining lease area are to be dealt with only in terms of the provisions of the Mineral Conservation and Development Rules 1988. The State Governments have clear powers to tackle any offences related to mining outside the mining lease area in terms of Section 23C of the MMDR Act, 1957. However, the interpretation that a land granted under a Mining lease by the State Government can be held to be occupied without lawful authority on the grounds of violation of.provisions of any other law of the land is not appropriate and such interpretation may not stand in the Court oflaw. Such Act or Rules, including the Environment (Protection) Act, 1986, or the Forest (Conservation) Act, 1980, etc. clearly provide penalties for violations under those laws. This aspect may be clarified to the State Accountant General also." 139. All that we need say for the present is that the interpretation given in the aforesaid letter to Section 21(5) of the MMDR Act is not fully correct. While mining in excess of permissible limits under the mining plan or the EC or FC on leased area may not amount to mining on land occupied without lawful authority, it would certainly amount to illegal or unlawful mining or mining without authority oflaw. Section 21 of the MMDR Act 140. The discussion on illegal or unlawful mining takes us to the question of the consequence of illegal or unlawful mining and the interpretation of Section 21(1) and Section 21(5) of the MMDRAct. 141. Section 21(1) of the MMDR Act is clearly relatable to a penal offence and applies if any one contravenes the provisions of Section 4( 1) of the MMDR Act. Section 4(1) of the MMDR Act prohibits the undertaking of any mining operation in any area except under and in accordance with the terms and conditions of a mining lease and the rules made thereunder. Therefore, when a person carries out a mining operation in any area other than a leased area or violates the terms of a mining lease, which incorporates the mining plan and which requires COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] adherence to the law of the land, that person becomes liable for prosecution under Section 21(1) of the MMDRAct. In the event ofa conviction, he or she shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to Rs.5 lakh per hectare of the area. 142. As far as Section 21(5) of the MMDR Act is concerned, according to the CEC the provision is applicable only if a person indulges in illegal mining outside the mining lease area. Consequently, Section 2J(5}ofthe MMDRAct is not attracted even if the mineral raised within the mining lease area is without an EC or beyond the quantity prescribed by the EC or beyond the quantity permitted in the mining plan. In such a situation, the provisions of the EPA or the MCR come into play. This -interpretation is supported by learned counsel forthe mining lease holders who affirm that Section 21(5) of the MMDRAct is mining lease area centric. In other words, according to the CEC and the learned counsel, for the purposes of Section 21(5) of the MMDR Act illegal mining is mining outside the mining lease area and Section 21(5) of the MMDR Act has to be understood in that light. 143. Reference was also made to the Explanation to Rule 2(iia) of the MCR where .it is stated that for the purposes of this clause, the ·violation ofany rules, other than the rules made under section 23C of the MMDRAct, within the mining lease area by a holder of a mining lease shall not include illegal mining. In other words, it was submitted that Section 21(5) of the MMDR Act is required to be understood in the context of Rule 2(iia) of the MCR. 144. It was submitted by Shri Ashok Desai learned senior counsel for one of the intervenors, that the penalty postulated by Section 21(5) of the MMDR Act though an imposition of a pecuniary liability, is punishment for the commission of an offence. By referring to Khemka & 'Co. (Agencies) Pvt, Ltd. v. State of Maharashtra' it was contended that the liability sought to be imposed by Section 21(5) of the MMDR Act is not a liability that is created by a clear, unambiguous and express enactment. 145. As far as the Union of India is concerned, in its affidavit filed on 20" January, 2017 by Shri Sudhakar Shukla, Economic Advisor in the Government of India, Ministry of Mines, it is submitted (and this > '11975)2SCC22 c (2017] 13 S.C.R. submission is supported by the learned Attorney General in his oral submissions) that Section 21(5) of the MMDRAct is in two parts. The first part refers to the raising of minerals without any lawful authority from any land. The second part is in addition to what is recoverable under the first fart. The addition is to the effect that when a person raises a minera from any area not in his or her lawful authori_ty, that person is also li~ble to pay the rent, royalty or tax for the period during which the land 'f'as occupied without lawful authority. 146. It is further submitted that 'illegal mining' as defined in Rule 2( iia) of the MCR is also required to be read in the context of Rule 26( 4) and Rule 27( 4A) of the MCR which deal with the refusal to renew a mining lease if the mining lease holder is convicted ofillegal mining and the determination of a mining lease in the event the mining lease holder is convicted of illegal mining. It is submitted that the definition of illegal mining in the MCR must be strictly construed and limited to the provisions of the MC'R and cannot apply to the provisions of Section 21 ( 5) of the MMDRAct. 14 7. In conclusion, it is reiterated by the Union of India on affidavit as follows: "55. That considering all the above, the Ministry would like to submit that the provisions of sub-section (5) of Section 21 would apply to all minerals raised without any lawful authority, be it . forest clearances or environment clearances or any other such legal requirements. 56. That penalties would arise under section 21 (5) of the MMDR Act, 1957, in respect of any form of mining activity without lawful authority. Mining outside lease area would on the face of it amount to mining without lawful authority and would attract the provisions of section 21 ( 5); and, in addition, all fonns of mining without lawful authority including that in breach of the limits imposed by the Environmental Clearance carried out within the lease area would also invite penalties under section 21 (5)." (Emphasis given by us). 148. On behalf of the State ofOdisha, it was submitted by Shri Rakesh Dwivedi learned senior counsel by relying upon Karnataka Rare Earth v. Senior Geologist, Depart111e11t of Mines & Geology'" that " (2004) 2 sec 783 COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] what is sought to be achieved by Section 21 (5) of the MMDR Act is to recover the price of the mineral that has been illegally or unlawfully or unauthorisedly raised with an intention to compensate the State for the loss of the mineral owned by it, the loss having been caused by a person who is not authorized by law to raise that mineral. There is no element of penalty involved in this and the recovery of the mineral or its price is not a penal action but is merely compensatory. This is what this Court had to say in Kamataka Rare Earth: "12. ls the sub-section (5) of Section 21 a penal enactment? Can the demand of mineral or its price thereunder be called a penal action or levy of penalty? 13. A penal statute or pcnal law is a law that defines an offence and prescribes its corresponding fine, penalty or punishment. (Blacks Law Dictionary, 7th Edn., p. 1421.) Penalty is a liability composed (sic imposed) as a punishment on the party committing the breach. The very use of the term "penal" is suggestive of punishment and may also include any extraordinary liability to which the law subjects a wrongdoer in favour of the person wronged, not limited to the damages suffered. (See Aiyar, P. Ramanatha: The_LawLexicon, 2nd Edn., p. 1431.) 14. In support of the submission that the demand for the price of mineral raised and exported is in the nature of penalty, the learned counsel for the appellants has relied on the marginal note of Section 21. According to Justice Singh, GP.: Principles of Statutory Interpretation (8th Edn., 2001, at p. 147), though the opinion is not uniform but the weight of authority is in favour of the view _that the marginal note appended to a section cannot be used for construing the section. There is no justification for restricting the section by the marginal note nor does the marginal note control the meaning of the body of the section ifthe language employed therein is clear and spells out its own meaning. In Director of Public Prosecutions v. Schildkampn Lord Reid opined that a sidenote is a poor guide to the scope of a section for it can do no more than indicate the main subject with which the section deals and Lord Upjohn opined that a sidenote being a brief precis of the section forms a most unsure guide to the construction of the enacting section and very rarely it might throw some light on the intentions of Parliament just as a punctuation mark " (1969) 3 All ER 1640 : (1970) 2 WLR 279 (HL) c c (2017] 13 S.C.R. 15. We are clearly of the opinion thatthe marginal note "penalties" cannot be pressed into service for giving such colour to the meaning of sub-section (5) as it cannot have in law. The recovery of price of the mineral is intended to compensate the State for the loss of the mineral owned by it and caused by a person who has been held to be not entitled in law to raise the sam~. There is no element of penalty involved and the recovery of price is not a penal action. It is just compensatory." 149. We nre in agreement with the view expressed by the learned Attorney Gen~ral and Shri Dwivedi as also the view expressed in Karnataka Rate Earth. The decision in Khemka & Co. is not at all apposite. There is no ambiguity in Section 21 ( 5) of the MMDRACt or in its application. We are also of opinion that though Section 21 ( 1) of the MMDRAct might be in the realm of criminal liability, Section 21(5) of the MMDR Act is certainly not within that realm. 150. In ouropinion, Section 21(5) of the MMDRAct is applicable when any person raises, without any lawful authority, any mineral from any land. In that event, the State Government is entitled to recover from such person the mineral so raised or where the mineral has already been disposed of, the price thereof as compensation. The words 'any land' are not confined to the mining lease area. As far as the mining lease area is concerned, extraction of a mineral over and above what is permissible under the mining plan or under the EC undoubtedly attracts the provisions of Section 21(5) of the MMDRAct being extraction without lawful authority. It would also attract Section 21 (1) of the MMDR Act. In any event, Section 21 ( 5) of the Act is certainly attracted and is not limited to a violation committed by a person only outside the mining lease area – it includes a violation committed even within the mining lease area. This is also because the MMDR Act is intended, among other things, to penalize illegal or unlav.ful mining on any land including mining lease land and also preserve and protect the environment. Action under the EPA or the MCR could be the primary action required to be taken with reference to the MCR and Rule 2(ii a) thereof read with the Explanation but that cannot preclude compensation to the State under Section 21 (5) of the MMDR Act. The MCR cannot he read to govern the MMDR Act. 151. What is the significance of this discussion? It was submitted that the CEC has taken the following view: COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] " …… it may be appropriate that 30% of the notional value of A the iron and manganese produced by each of the lessees without/ in excess of the environmental clearances may be directed to be recovered from the concerned lessees and with the explicit understanding the concerned lessees as well as the officers will continue to be liable for action under the provisions of the respective Acts." 152. Learned counsel for the petitioners and the learned Amicus were ofopinion that the provisions of Section 21(5) of the MMDRAct require that the entire price of the illegally mined ore should be recovered from each defaulting lessee. Similarly, in its affidavit, the Union of India differs with the recommendation of the CEC. According to the affidavit · of the Union oflndia this would be contrary to the statutory scheme and in fact 100% recovery should be made under the provisions of Section 21(5) of the MMDR We may note that only to this extent, the learned Attorney General differed with the view expressed .by the Union of India and submitted that the recommendation of the CEC to recover D only 30% of the value of the illegally mined ore should be accepted 153. In our opinion, there can be no compromise on the quantum of compensation that should be recovered from any defaulting lessee – it should be l 00%. If there has been illegal mining, the defaulting lessee must bear the consequences of the illegality and not be benefited by pocketing 70% of the illegally mined ore. It simply does not stand to reason why the State should be compelled to forego what is its due from the exploitation of a natural resource and on the contrary be a party in filling the coffers of defaulting lessees in an ill gotten manner. Calculations on merits 154. The issue now is with regard to the calculations made by the CEC with regard to the production of iron ore and manganese ore without or in excess of the EC and/or the mining plan. As already mentioned above, the figures were not disputed (except by JSPL and SMPL). Therefore, only the application of the figures requires consideration and so we do not need to examine each individual case. However to understand and appreciate the manner in which the CEC has arrived at its figures, we may state that this has been specifically mentioned by the CEC in its report. The basis of the calculations is as follows: "(a) the production during the year 1993-94 has been considered as the permissible production during each year till the mining lease did not have the cnvironinental clearance; c (2017] 13 S.C.R. (bl the permissible production for the year in which the environmental clearance was obtained for the first time has been considered on pro rata basis of (a) the prescribed annual production and (b) the date of the grant of the environmental clearance. For this purpose the environmental clearance granted on or before l 5'h of a month has been considered valid for the entire month. Where the environmental clearance has been granted after l S'h of a month it has been considered valid from the subsequent month. For example if the environmental clearance for a mining lease has been granted say on JO'h October, 2008 for an annual production of say 12 lakh MT then in that case the permissible production for the mining lease for the year 2008-09 would be taken as 6 lak:h MT (12×6/12 lak:h MT) and 12 lak:h MT per annum in the subsequent year; and ( c) wherever a mining lease having environmental clearance has been granted revised environmental clearance for a higher production the permissible annual production forthe year, during which the revised environmental clearance has been granted, has been considered on pro rata basis of the quantities prescribed in the earlier environmental clearance and the revised environmental clearance. For example ifthe mining lease was having environmental clearance for annual production of 12 lakh MT and say on 28'h September, 2009 it has been granted revised environmental clearance for annual production of say 24 lakh MT then in that case the permissible production for the year 2009-10 would be taken as 18 lakh MT (12×6/12+24×6/12) and 24 lakh MT per annum in subsequent years." 155. A submission made by the mining lease holders was that the maximum production in any year up to 1993-94 should be considered as the base for making the calculations. Such a contention was also urged before the CEC and was rejected. We have examined this contention independently and arc of the view that the base year of! 993-94 is most appropriate – we have already given our reasons for this. Some lessees might lose in the process while some of them might benefit but that cannot be avoided. In any event, each mining lease holder is being given the benefit of calculations only from 2000-01 and is not being 'penalized' for the period prior thereto. We think the mining lease holders should be grateful for this since it was submitted by learned counsel for the COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] petitioners and the learned Amicus that the penalty should be levied from !. the date ofEIA 1994. In ouropinion, the cut-off from 2000-2001 (without interest) is undoubtedly reasonable and there can be hardly be any grievance in this regard. The mining lease holders cannot have their cake and eat it too, along with the icing on top. 156. Since the recommendation made by the CEC in this regard is not totally unreasonable, we accept that the comPJnsation should be payable from 2000-2001 onwards at 100% of the price of the mineral, as rationalized by the CEC. Violation of tlie Forest (Conservation) Act, 1980 157. Before dealing with the violations of Section 2 of the Forest (Conservation) Act, 1980 (for short 'the FCA'), it is necessary to give a briefbacki,'l'ound. 158. The FCA came into operation initially through the Forest (Conservation) Ordinance, 1980 with effect from 25'" October, 1980. The said Ordinance was repealed and subsequently the FCA came into effect on 25'" December, 1980. 159. Section 2 of the FCA provides that no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing, inter alia. that any forest land or any portion thereof may be used for non-forest purposes. 160. The interpretation of Section 2 of the FCA first came up for consideration in State of Bihar v. Banshi Ram Modi. 12 In that case, Banshi Ram Modi was granted a mining lease for mining and winning mica. During the course of mining operations, feldspar and quartz were discovered. Modi then applied to the Central Government to include these minerals in the lease. The State Government agreed to do so but did not obtain the previous approval of the Central Government for the inclusion of the two minerals in the original lease. 161. The Central Government took the view that since its previous approval had not been obtained for inclusion of feldspar and quartz in the mining lease, Modi could not be permitted to mine these two minerals. This led Modi to approach the High Court with the contention that he was not breaking up or clearing any forest land other than the land on which mining operations were already being carried on. The High Court "(1985) 3 sec 643 c c allowed the writ petition but feeling aggrieved, the State ofBiharpreferred an appeal in this Court. 162. The question before this Court was a narrow one, namely, whether prior approval of the Central Government is necessary in respect of a mining lease, granted for winning a certain mineral prior to the coming into force of the FCA, if the lessee applies to the State Government after the FCA came into force for permission to win and carry any new mineral from the broken up area? 163. While answering this question in the negative, it was held that after the commencement of the FCA no fresh breaking up of forest land or no fresh clearing of the forest on any such land could be permitted by the State Government or any authority without the approval of the Central Government. However, in respect of broken up land, it was held foat if the State Government permits the lessee to remove any discovered mineral, it cannot be said that there has been a violation of Section 2 of the FCA particularly since there is no breaking up of any fresh forest land. 164. Subsequently in Ambica Quarry Works v. State of Gujarat and Orsll when the lease of the mining holder came up for renewal, the FCA had already come into force. Since the forest department of the State of Gujarat refused to give a no objection certificate, the application for renewal of the lease was rejected. The question that arose for consideration was whether, after coming into force of the FCA, the mining lease holder was entitled to renewal of the mining lease. While answering the question in the negative this Court held that the renewal of a lease cannot be claimed as a matter of right. The primary purpose of the FCA was to prevent deforestation and ecological imbalance as a result of deforestation. Therefore, the primary duty under the FCA was to the community and the obligation to society must predominate over the obligation to the individuals. While distinguishing Banshi Ram Modi this Court held that renewal of the lease would lead to further deforestation or at least it would not help in reclaiming the area where deforestation had already taken place. The primary purpose of the FCA is to prevent further deforestation and any interpretation must sub-serve that purpose and implement the FCA. Under the circumstances, it was held, considering the scheme of the FCA that refusal to renew the lease without prior approval of the Central Governnient was not unjustified. "(19&7) 1sec213 COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR. J.] 165. This view was reiterated in Rural Litigation and A Endtlement Kendra v. State of U.P. 14 It was held that the FCA does not permit mining in a forest area. Reiterating the view expressed in lb'iibica Quarry Works, it was observed that compliance of Section 2 of the FCA is necessary as a condition precedent even for the renewal ofa mining lease. This Court went so far as to hold that if any decree or B order has already been obtained by any of the mining lease holders, 'from any Court relating to renewal of their lease, the same shall stand vacated and similarly, any appeal or other proceeding taken to obtain a renewal or against any order or decree granting renewal shall also become non est. c 166. The definition of the word 'forest' for the purposes of the FCA came up for consideration in T.N. Godavarman v. Union of inilia. 15 In its decision of 12" December, 1996 this Court observed that 'dhring the course of hearing it appeared that there is a misconception about the true scope of the FCA and the meaning of the word 'forest' u~ed therein. Consequently, there is also a misconception about the need for prior approval of the Central Government as mandated by Section 2 of the FCA in respect of certain activities h1 a forest area, which activities are more often of a commercial nature. 167. In this context, it was held that 'forest' must be understood 'according to its dictionary meaning and it would cover all statutorily recogrnzed forests, whether designated, reserved, protected or otherwise. –rt was further held that 'forest' would also include any area recorded as ki'otest in the government records irrespective of the ownership. With ' this 'iii mind, this Court directed that prior approval of the Central 'Government is required for any non-forest activity within the area of any 'forest'. In accordance with Section 2 of the FCA all on-going 'il&ivity within any forest in any State throughout the country, without 'phot·approval of the Central Government must cease forthwith. This ''partfoular direction given by this Court is of immense significance. 168. This Court further directed each State Government to constitute within one month an Expert Committee, inter alia, to identify 0.areas which are 'forest' irrespective of whether they are so notified, ,,.recognized or classified under any law and irrespective of the ownership ofJhe .land of such forest. " (i 989) Supp. ( 1) sec 504 1' (1997) 2 sec 267 169. Pursuant to the directions given by this Court, the State of Odisha constituted District Level Committees (for short 'DLC') for identification of forest lands. After the identification process. appropriate affidavits were filed by the State ofOdisha in this Court in 1997-98, the last being dated 6'" January, 1998. 170. In the meanwhile, in T.N. Godal'arman "· Union of India 16 c this Court passed certain directions on 4'h March, 1997 with regard to what was categorized as mining matters. The directions given by this Court are as follows: "9. We direct that – ( 1) where the lessee has not forwarded the particulars for seeking permission under the FCA. he may do so immediately; (2) the State Government shall forward all complete pending appliaations within a period of2 weeks from today to the Central Government for requisite decisions; (3) applications received (or completed) hereafter would be forwarded within two weeks of their being so made. ( 4) the Central Government shall dispose of all such applications within six weeks of their being received. Where the grant of final dlcarance is delayc;d, the Central Government may consider the grant of working permissions as per existing practice." 171. It was also made clear that the order passed by this Court including the earlier order dated 12'" December, 1996 shall be obeyed and carried out by the Central Government and the State Governments notwithstanding any order or direction passed by a court including a High Court or T1ibunal to the contrary. 172. From the above, it is explicit that in terms of the orders passed by this Court, there was a complete ban on non-forest activity on forest lands with effect from 12"' December, 1996. The only issue that remained was identification of all such lands by the District Level Committees and as mentioned above this exercise was completed by the State of Odisha on or about 6'h January, 1998. The lands identified by the DLC are compendiously referred to as DLC lands. 173. In this background in IA Nos. 2746-2748 of2009 in the case of T. N. Godavarman the CEC was directed to submit a report which 10 (1997) J sec 312 COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] it did on 26'h April, 2010. It was recommended by the CEC that given the peculiar circumstances prevailing in the State of Odisha, mining operations in the entire DLC lands included in the mining leases, may be allowed to continue on payment of the Net Present Value (NPV) subject to the fulfillment of other statutory requirements and rules being complied with. 174. By an order dated 7" May, 2010 this Court directed that the recommendation of the CEC acceptable to the State Goverfiment could be complied with. Consequently, the State of Odisha a~pears to have implemented the recommendations regarding recovery of NPV and realized an amount of ahout Rs. 1750 crores as additional NPV. c 175. We have been informed that in addition to the above, the mining lease holders have subsequently deposited an amount under the heading of penal compensatory afforestation which was introduced through guidelines issued by the MoEF on 3'd February, 1999. The guidelines in this regard, were communicated by the Assistant Inspector General of Forest to the Chief Secretary of all the State and Union Territories and the relevant portion thereof reads as follows: "4.3. l Cases have come to the notice of the Central Government in which permission for diversion of forest land was accorded by the concerned State Government in anticipation of approval of the Central Government under the Act and/or where work has been carried out in forest area without proper authority. Such anticipatory action is neither proper not permissible under the Act which clearly provides for prior approval of the Central Government in all cases. Proposals seeking ex-post-facto approval of the Central Government under the Act arc nonnally not entertained. The Central Government will not accord approval under the Act unless exceptional circumstances justify condonation. However, penal compensatory afforestation wonld be insisted upon by the MoEF on all such cases of condonation. 4.3.2 The penal compensatory afforestation will be imposed over the area worked/used in violation. However, where the entire area has been deforested due to anticipatory action of the State Government, the penal compensatory afforestation will be imposed over the total lease area." c 176. It was submitted by learned counsel for the lessees that since additional NPV as well as an amount towards penal compensatory afforestation has been paid by the defaulting mining lease holders, the violation of Section 2 of the FCA stands condoned or in any event the illegal or unlawful mining in forest lands stands regularized. 177. The CEC did not accept this submission made on behalf of the mining lease holders on the ground that no retrospective forest clearance has b~en granted and even otherwise there is no provision to condone or regularize the violation of Section 2 of the FCA. 178. We are of opinion that the view expressed by the CEC in this regard is partially correct. Given the fact that the defaulting mining lease holders have been asked to pay and have paid additional NPV as well as an amount towards penal compensatory afforestation, it must be assumed the violation of the FCA has been condoned to a limited extent, more particularly since in its order dated 7th May, 2010 this Court permitted the State of Odisha to accept such recommendations of the CEC made in the report dated 26'' April, 2010 as are acceptable to it. The relevant recommendations made by the CEC read as follows: "( c) No forest land can be leased/assigned without first obtaining 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 MMD~Act, 1957. Both necessarily have to·be the same. In view of the above, this Hon'ble Court while permitting grant of Tempqrary Working Permission to the 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 dir~cted to pay the NPV for the entire forest area, included in the mining leases; (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 'hie Court's order dated 12.12.1996. While 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 COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] by the concerned lease holder and (ii) the mining operations in the unbroken 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 continued provided the other statutory requirements and Rules are otherwise being complied with." 179. This still leaves open the question of violation of the order passed by this Court on J 21h December, 1996 followed by the order dated 4"' March, 1997 namely that mining must cease forthwith in forest areas. In regard to this violation, the only benefit (at best) that can be granted to the mining lease holders that we are concerned with, is till 6th January, 1998 when the affidavit was filed in this Court in LA.Nos. 2746-2748 of2009 in T.N. Godavarman. With effect from 7"' January, 1998 any mining activity in forest and DLC lands would clearly be completely illegal and unauthorized and the benefit that the mining lease holders have derived from this illegal mining would be subject to Section 21(5) of the MMDR Act. Therefore, the price of the iron ore and manganese ore mined by the mining lease holders from 7"' January, 1998 is payable until forest clearance under Section 2 of the FC Act is obtained by the mining lease holders. 180. The report of the CEC dated 16'" October, 2014 deals with 51 mining leases. It has been recorded by the CEC that of them 15 mining leases have been found not involved in undertaking mining operations in violation of the FCA. There are 16 mining leases that have violated the provisions of the FCA between 25"' October, 1980 and 1999- 2000 and the State Government in some of the cases has already issued a show cause notice to the mining lease holders. It is further stated that most of the violations pertain to the period prior to 12"' December, 1996. The CEC has not made any particular recommendation in regard to these 16 mining leases nor do we, except to direct the State Government to promptly take a decision on the show cause notice preferably within a period of fonr months and in any case before 31" December, 2017. 181. The CEC has also dealt with 18 others mining lease holders (other than M/s. Essel Mining and Industries Ltd. relating to the Kasia Iron Ore Mines and Jilling-Langlotta Iron & Manganese Ore Mines). With regard to these 18 mining lease holders, the view taken by us above c (j [2017) 13 S.C.R. would hold good and clearly they are liable to compensate the State for the entire price of the iron ore and manganese ore illegally mined with effect from 7'h January, 1998 until the forest clearance was obtained by the concerned mining lease holder. 182. We have fixed 7'h January, 1998 as the cut-off date despite the orders dated 12'h December, 1996 and 4'" March, 1997 only for the reason that it is possible that some mining lease holders (we do not know how many) wore not aware that they were inadvertently conducting mining operations on DLC lands which were identified by the State of Odisha as fore~t lands on the directions of this Court. For the purposes of Section 21 ( S) of the MMDR Act, they are entitled to the benefit of doubt and along with them, the other mining lease holders before us. The CEC in this regard has observed as follows: "It will be seen that in the above cases the mining operations have been done in the forest land in violation of the Forest (Conservation) Act, 1980 and consequently also in violation of this Hon'ble Court order dated 12.12.1996. The CEC recommends that 70% of the notional value of the iron ore and mangal)ese produced by the lessees by undertaking mining operations in the forest land in violation of the Forest (Conservation) Act, 1980 may be directed to be recovered from the respective lessees. Wherever the mineral production is both from the forest land as well as non-forest land then in such cases the notipnal value of the production from the forest land may be calculated on pro rata basis of the extent of the forest land and non-forest land involved. The notional value of the mineral, time limit for payment of the compensation, use of the amount received as compensation and other conditions as decided by this Hon 'ble Court in respect of the production without/in excess of the environmental clearance may be directed to be followed on pari- passu basis." 183. For the reasons that we have already expressed above, we are not in agreement with the CEC that only a part of the notional value (in this case 70%1 of the iron ore and manganese ore produced by the mining lease holders should be recovered. We are of the view that Section 21(5) of the MMDR Act should be given full effect and so we reiterate that the recovery should be to the extent of 100%. COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] 184. There may be some overlap in the period when mining operations were conducted by the mining lease holders without an EC and/or an FC. We make it clear that mineral extracted either without an EC or without an FC or without both would attract the provisions of Section 21(5) of the MMDRAct and 100% of the price of the illegally or unlawfully mined mineral must be compensated by the mining lease holder. To the extent of the overlap or the common period, obviously only one set of compensation is payable by the mining lease holder to the State ofOdisha. We order accordingly. However, we make it clear that whatever payment has already been made by the mining lease holders towards NPV, additional NPV or penal compensatory afforestation is neither adjustable nor refundable since that falls in a different category altogether. 185. We may note that this Court has held in T.N. Godavarman v. Union of India" that a violation of the FCA is condonable on payment ofpenal compensatory afforestation charges. This obviously would not c · apply to illegal or unlawful mining under Section 21(5) of the MMDR Act, but we make it clear that the mining lease holders would be entitled to the benefit of any Temporary Working Permission granted. Conclusions on the issues of mining without an EC or FC or both 186. To avoid any misunderstanding, confusion or ambiguity, we make the following very clear: (I) A mining project that has commenced prior to 2 7'h January, 1994 and has obtained a No Objection Certificate from the SPCB prior to that date is permitted to continue its mining operations without obtaining an EC from the Impact Assessment Agency. However, this is subject to any expansion (including an increase in .the lease area) or modernization activity after 27• January, 1994 which would result in an increase in the pollution load. In that event, a prior EC is required. However, if the pollution load is not expected to increase despite the proposed expansion (including an increase in the lease area) or modernization activity, a certificate to this effect is absolutely necessary from the SPCB, which would be reviewed by the Impact Assessment Agency. "r201n15 sec 658 and (2011) 15 sec 681 (2) The renewal of a mining lease after 27'h January, 1994 will require an EC even ifthere is no expansion or modernization activity or any increase in the pollution load. (3) For considering the pollution load the base year would be 1993-94, which is to say that ifthe annual production after 27'h January, 1994 exceeds the annual production of 1993- 94, it would be treated as an expansion requiring an EC. (4) Tliicre is no doubt that a new mining project after 27'h January, 1994 would require a prior EC. c (5) Any iron ore or manganese ore extracted contrary to EIA 1994 or EIA 2006 would constitute illegal or unlawful mining (as understood and interpreted by us) and compensation at 100% of the price of the mineral should be recovered from 2000-200 I onwards in terms of Section 21 (5) of the MMDR Act, if the extracted mineral has been disposed of. In addition, any rent, royalty or tax for the period that such mining activity was carried out outside the mining lease area should be recovered. (6) With effect from 14"' September, 2006 all mining projects having a lease area of 5 hectares or more are required to have an EC. The extraction of any mineral in such a case without an EC would amount to illegal or unlawful mining attracting the provisions of Section 21(5) of the MMDR Act. (7) For a mining lease of iron ore or manganese ore of less than 5 hectares area, the provisions ofEIA 1994 will continue to apply subject to EIA 2006. (8) Any mining activity carried on after 7" January, 1998 without an FC amounts to illegal or unlawful mining in terms of the provisions of Section 21(5) ofMMDRAct attracting 100% recovery of the price of the extracted mineral that is disposed of. (9) In the event ofany overlap, that is, illegdi or unlawful mining without an FC or without an EC or without both would attract only I 00% compensation and not 200% COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] compensation. In other words, only one set of compensation would be payable by the mining lease holder. (I 0) No mining lease holder will be entitled to the benefit of any payments made towards NPV or additional NPV or penal compensatory afforestation. Violation of Section 6 of the MMDR Act 187. We have examined the report of the CEC with regard to the alleged violation of Section 6 of the MMDRAct and find that there have been several amendments to Section 6 relating to the maximum area for which a mining lease may be granted to a person. The following is the result of the amendments: From 1.6.1958 to 11.9.1972 – maximum lease area 10 sq. miles. 2. From 12.9.1972 to 9.2.1987 – maximum lease area IO sq. km or 1000 hectares in any one State. 3. From I0.2.1987to 17.12.1999-maximumleasearea 10 sq.km or 1000 hectares in any part of the country. 4. From 18.12.1999 till date-maximum lease area 10 sq.km or 1000 hectares in one State. 188. While the word 'person' has not been defined in the MMDR Act, a reading of Section 5 thereof indicates that the State Government shall not grant a mining lease to any person unless such person is an Indian national or a company as defined in the Companies Act, 1956 and subsequently in the Companies Act of2013. 189. Sub-section (2) of Section 6 of the MMDR Act provides that a person acquiring by, or in the name of, another person a mining lease which is intended for him/her shall be deemed to be acquiring it himselfi'herself. 190. For the purposes of determining the total area that can be acquired for mining operations, Section 6(3) of the MMDRAct provides that.the area held under a mining lease by a person as a member of a cooperative society, company or other corporation or a Hindu Undivided Family or a partner ofa firm shall be deducted from the area referred to so that the sum total of the area held by such person under a mining lease only as such member or partner or individually may not in any (2017] 13 S.C.R. case exceed the total area specified. 191. In this background, the CEC examined the case of seven mining lease holders. They are: 1. Essel Mining and Industries Limited 2. Rungta Mines Limited 3. Rungta Sons Pvt. Limited 4. Bonai Industrial Company Limited 5. Fee grade & Co. Pvt. Limited 6. Mis Mangilal Rungta 7. Jindal Steel & Power Limited 192. As far as Essel Mining and Industries Limited is concerned we propose to deal with this mining lease holder on another occasion since even the CEC has placed this mining lease holder in a special category. 193. Similarly, so far as Rungta Mines Limited, Rungta Sons Pvt. Limited and Mis Mangilal Rungta are concerned, although the CEC has come to the conclusion that these persons have not acquired mining leases in violation of Section 6 of the MMDRAct, there are some critical observations made by the Commission with regard to the 'Rungta Group'. Learned counsel for the petitioner submitted that the view of the CEC in this regard needs reconsideration. Since the 'Rungta Group' was not heard by us, we propose to hear the above-Rungta companies to ascertain, inter alia, whether there has been any violation of the provisions of Section 6 of the MMDRAct. 194. As far as Jindal Steel & Power Limited is concerned, we propose to hear this company on another occasion since the suggestion of the CEC is that it is the benami holder ofSarda Mines Pvt. Ltd. Ifit is so held to be a benami holder of Sarda Mines Pvt. Ltd. then there is a violation of Section 6 of the MMDR Act. However, the CEC has refrained from malcing any observations or recommendation in this regard. Accordingly, we propose to hear Jindal Steel & Power Limited on a later occasion on this limited issue. 195. As far as Bonai Industrial Company Limited and Feegrade & Co. Pvt. Limited are concerned, the CEC has concluded that they have not violated Section 6 of the MMDRAct. That being the position, and nothing having been shown to the contrary, we accept the COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] recommendation of the CEC in this regard. Violation of Rule 37 of the Mineral Concession Rules, 1960 196. The CEC has discussed the possible violation of Rule 37 of the MCR. In this context, it was noted that there were several mining lease holders who had entered into raising contracts which were actually a transfer of the lease as postulated by Ruic 3 7 of the MCR. 197. On this basis the State ofOdisha constituted a Committee on 8'' July, 2011 to carry out a study of the financial transactions between the mining lease holders and the raising contractors to determine whether there is a primafacie violation of Rule 37 of the MCR. 198. On an examination of the material before it the Committee concluded thaJ eight mining lease holders violated Rule 37 of the MCR. These mining lease holders are as under: i) R.P. Sao, Guali Iron Ore Mines, Keonjhar c it) Indrani Patnaik, Unchabali Iron Ore Mines, Keonjhar iit) Mis K.J.S. Ahluwalia, Nuagaon Iron Ore Mines, Keonjhar iv) Mis Aryan Mining & Trading Corporation Pvt. Ltd., Narayanposhi Iron Ore Mines, Sundergarh v) Mis Mideast Integrated Steel Ltd., Roida, Sidhamatha Iron Ore Mines, Keonjhar vi) Ka vita Agrawal, Kusumdihi Manganese Mines, Sundergarh vii) Mala Roy & Others, Jalabari Iron Ore Mines, Keonjhar viii) Mis. Sharda Mines (P) Ltd., Thakurani Iron Ores Mines, Keonjhar 199. Pursuant to the report of the Committee, a show cause notice was issued to these mining lease holders by the State of Odis ha. Six of the mining lease holders (other than Mis Aryan Mining & Trading Corporation Pvt. Ltd. (for short Aryan) and Ka vita Agrawal (Kusumdihi Manganese Mines) challenged the show cause notice and the decision of the Committee by filing revision petitions under Section 30 of the MMDR Act read with Rule 55 of the MCR before the Central Government. The challenge to the show cause notice was on the ground that persons who were not government servants could not have been included in the Committee and also that the Committee was not notified in the official gazette as required by Section 26(2) of the MMDRAct. 200. 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 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. 202. 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. 203. 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. 204. Accordingly, for considering the appointment of an 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 COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] 205. Mr. Prashant Bhushan, learned counsel for the petitioner A 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. 206. 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 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. c 207. The second principle relied on is the principle of'conservation 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. 208. 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. 209. 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 c 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 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. Inquiry by the Central Bureau of Investigation 210. 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 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. 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. COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] 212. There is no doubt that the recommendations of the 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 tribals inhabiting the land for several generations. Utilization of funds by the Special Purpose Vehicle 213. 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 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 (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, 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." 214. Subsequently on 28'h April, 2014 this Court accepted the scheme prepared by the Government of Odisha in consultation with the 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: "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 c (2017] 13 S.C.R. 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 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 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." 215. 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 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 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 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 COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] maintenance of accounts and (g) to undertake any other ancillary 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) 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 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 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. 216. 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. 217. 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 c (2017] 13 S.C.R. 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 should also be kept with the Special Purpose Vehicle. 218. 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 expenditure of the SPV from its inception. Conclusion 219. In view of findings above, we dispose of the writ petitions to the extent of the directions that we have already given. 220. 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. 221. I.A. No. 66 (filed by J.N. Pattnaik) is also dismissed since there is no forest clearance available. 222. 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 Government should ensure that the lessee S.A. Karim in fact has valid statutory clearances. 223. 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. 224. 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. COMMON CAUSE v. UNION OF INDIA AND ORS. [MADAN B. LOKUR, J.] 225. 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. 226. 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. 227. 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 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. 228. 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. c 229. The Chief Secretary of Odisha should file an affidavit as · 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. 230. All other pending l.A.s are disposed ofin terms ofourorders. Divya Pandey Directions issued.