Case: Samaj Parivartana Samudaya &amp; Others Vs. State of Karnataka &amp; Others

1. This application (I.A. NO.248 of 2015) has been filed seeking the following direction from thee and manganese ore may be sold in Karnataka without recourse toconducted by the monitoring committee set up by this Honble Court.The response of the Central Empowered Committeefor short) was sought for by this Court. Pursuant thereto a report dated 28th April, 2016 of the CEC has been submitted. In the said report the CEC has stated that it agrees with the statement of the applicant – Federation of Indian Industries, Southern Region (FIMI South) that the basic objectives behind the sale of iron ore through the Monitoring Committee, in terms of the various orders passed by this Court from time to time, have been achieved and an alternative system needs to be put in place.The Monitoring Committee through whomis currently being sold bywas constituted by the order of this Court dated 2nd September, 2011 accepting the recommendations of the CEC dated 1st September, 2011 to sell the total quantity of illegally extractedwhich at that point of time was 25 MMT (approximately).6. After the sale of the illegally minedwas complete, this Court by order dated 23rd September, 2011 continued to entrust the duty and responsibility of sale ofto the Monitoring Committee. The above position was continued by this Court by its Order dated 18.4.2013 disposing of Writ Petition (C) No. 562/2009 and other connected cases. This is how the current status/situation with regard to sale ofon through the Court Appointed Monitoring Committee continues.7. In the order of this Court dated 18th April, 2013 in Writ Petition (C) No. 562 of 2009 there is a vivid and graphic description of the enormity of the illegal mining and consequential damage to the ecology and environment that had led to the intervention of this Court and had prompted exercise of its jurisdiction in the present matter. Innovative measures and orders with the aid of Article 142 of the Constitution of India were felt necessary and consequently passed by the Court from time to time including the final order dated 18th April, 2013 to comprehensively deal with the issue of illegal mining and depredation of nature and environment. It is in the above said context that the constitution of the Monitoring Committee and the continuance of its role in the matter of sale ofon had been conceived and continued by this Court on the basis of the various orders passed from time to time.8. It is in the aforesaid backdrop and having regard to the progress achieved in terms of what was contemplated and visualized by this Court in its final order dated 18th April, 2013 that the tenability of the prayers made by the FIMI South will have to be considered.

Reasoning:
CEC was first constituted by the Court by its order dated 9.5.2002 as an interim body until creation of the statutory agency contemplated under the provisions of Section 3 (3) of the EPr by a Notification dated 17.9.2002 published in the Gazette of India the constitution of the Central Empowered Committee (CEC) for a period of 5 years was notified indicating its composition together with the extent of its powers and duties. It transpires from theorder dated 7.9.2007 that an issue with regard to the correctness of the extent of empowerment of the said body made by Notification dated 17.9.2002 was raised on behalf of the Union of India, whereafter, on the suggestions of the Attorney General for India, this Court by its order dated 14.12.2007 had determined the extent of powers of the CEC in the following termsIn supersession of all the previous orders regarding constitutions and functioning of the Central Empowered Committee (hereinafter called the) is constituted foring and ensuring compliance with the orders of this Court covering the subject matter of forest and wild life and related issues arising out of the saidthe period of five years mentioned in the Notification dated 17.9.2002 had expired and the terms of reference to the body had been redetermined by this Court, perhaps, a fresh notification should have been issued which was not forthcoming. It is in such a situation that the CEC had continued to function under orders of the Court submitting its reports from time to time in various environmental issues pending before this Court. It is on consideration of such Reports that the Court has been passing its orders from time to time.23. In the circumstances enumerated above, questions concerning the credibility of the CEC are absolutely unfounded, particularly in the absence of any materials to substantiate the apprehensions, if not allegations, that have beene said body has beenperforming such tasks as had been assigned by this Court by its orders passed from time todirections on the basis of which the CEC had proceeded and had submitted its Reports are within the framework of the terms of reference of the CEC as determined by this Court by order dated 14.12.2007. Needless to say, acceptance of the recommendations made by the CEC on the basis of which orders of the Court are formulated is upon the satisfaction of the Court. We, therefore, close the issue by holding the contentions made to be whollyto the learned Amicus Curiae in the present case none of the recommendations of the CEC is inconsistent or contrary to any statutoryy are at best supplemental to the existing provisions seeking to achieve the same end through a procedure which may be somewhaton for this, according to the learned Amicus Curiae, lies in the extraordinary situation that had occurred in the presentfind no merit in the above arguments. As stated above, in the past when mining leases were granted, requisite clearances for carrying out mining operations were not obtained which have resulted in land and environmental degradation. Despite such breaches, approvals had been granted for subsequent slots because in the past the authorities have not taken into account the macro effect of such wide-scale land and environmental degradation caused by the absence of remedial measures (including rehabilitation plan). Time has now come, therefore, to suspend mining in the above area till statutory provisions for restoration and reclamation are duly complied with, particularly in cases where pits/quarries have been leftmake it clear that we have not understood the above statement as an admission on the part of the Federation and it is on a consideration of the totality of the facts placed before us that we accept the findings of the survey conducted by the Joint Team constituted by the orders of this Court and the boundaries of each of the leases determined on that basis. We further direct that in supersession of all orders either of the authorities of the State or Courts, as may be, the boundaries of leases fixed by the Joint Team will henceforth be the boundaries of each of the leases who will have the benefit of the lease area as determined by the Joint Team. All proceedings pending in any court with regard to boundaries of the leases involved in the present proceeding shall stand adjudicated by means of present order and no such question would be open for re-examination by any body or authority.40. Before proceeding to the next issue we would like to observe that the contention urged on behalf of some of the lessees that dumping of mining waste (overburden dumps) do not constitute operations under Section 2(d) of the MMDR Act is too naive forwide terms of the definition contained in Section 2(d) of the MMDR Act encompasses all such activity within the meaning of expression. Use of forest land for such activity would require clearance under the FC Act. In case the land used for such purpose is not forest land the mining lease must cover the land used for any suchin the adoption of a criteria for classification has to be tested on the anvil of Article 14 and not on the subjective notions of availability of a better basis ofbasis suggested i.e. total encroached area has the potential of raising questions similar to the ones now raised on behalf of the lease holders. This is on account of the lack of uniformity in the areas covered by the different leases int, therefore, ought not to be what would be abasis for the categorization for that would introduce subjectivity in the process; the test is whether categorization on the basis adopted results in hostile discrimination and adoption of the criteria of percentage has no reasonable nexus with the object sought to be achieved, namely, to identify the lessees who have committed the maximum violations and damage to environment. Viewed from the aforesaid perspective, the categorization made does not fail the test of reasonableness and would commend for ourthe result of the survey undertaken andthe boundaries ofthe leases determinedby the Joint Team has been accepted by the Court and the basis of categorization of the mines has been found to be rational and constitutionally permissible it will be difficult for this Court to visualize as to how the Categorymines can be allowed toe is no room for compassion; fervent pleas for clemency cannot have even a persuasive value. As against the individual interest of the 49 Categoryleaseholders, public interest at large would require the Court to lean in favour of demonstrating the efficacy and effectiveness of the long arm of the law. We, therefore, order for the complete closure of the Categorymines and for necessary follow up action in terms of the recommendations of the CEC in this regard, details of which have already been extracted in an earlier part of thisCEC in its Report dated 28.3.2012 has placed the cases of M/s. V.S. Lad & Sons and M/s. Hothur Traders (placed in Categoryfor final determination by theEC has reported that the encroachment by M/s. V.S. Lad & Sons is only in respect of the overburden dumps and exceeds the percentage (15%) marginally, i.e., by 0.17% which could very well be due to the least count error used by the Joint Team. In so far as M/s. Hothur Traders is concerned the CEC in its Report dated 28.3.2012 has recorded that according to the lessee it has carried on its mining operation for the last 50 years in the lease area allotted to it which may have been wrongly identified in the earlier surveys and demarcations by taking into account a wrong reference point.Having considered the facts on which the two lessees have sought upgradation fromCategory we are afraid that such upgradation cannot be allowed. Both the lessees, in fact, accept the results of the survey by the Joint Team which findings have already been accepted by us.