PANAJI
The Bombay High Court has nixed a clause in the State government’s notice inviting tender for Block VI of the ongoing auction of Goa’s iron ore mining blocks, which sought to assure potential bidders that Section 8B of the MMDR Act shall apply to Block VI, implying that successful auction bidders would not be required to obtain a fresh EC for commencing mining operations for this Block.
The petitioners Sociedade de Fomento Industrial approached the High Court seeking an order to “forthwith delete the words ‘section 8B of the MMDR Act shall be applicable to these blocks’ appearing under caption List of Mineral Blocks for auction in the NIT (Notice Inviting Tender) as well as at the appropriate places in the tender document…”
The High Court allowed the petition and ruled that the successful bidders for Goa’s iron ore mining blocks will have to obtain fresh environmental clearances and any assurances by the state government that the mining blocks can revive the old environmental clearances will not stand.
The Parliament, by MMDR (Amendment) Act 2021, which entered into force on 28.03.2021, substituted the amended Section 8B by removing the validity period of two years regarding valid approvals, rights, clearances, and licences. The substituted Section 8B transferred and vested in the new lessee the valid approvals, rights, clearances and licences. As a result, new lessees could operate mining leases based on valid approvals, rights, clearances, and licences granted to former lessees.
The State government contended that Section 8B would allow the present leases to benefit from the transfer of environmental clearance and as such would not require a fresh environmental clearance. “New lessees could operate mining leases based on valid approvals, rights, clearances, and licences granted to former lessees,” the State government claimed before the Court.
However, the High Court found no merit in the argument and agreed with the petitioner as well as the Goa Foundation who intervened in the case arguing that Section 8B of the MMDR applies only to the valid ECs concerning the mining leases whose terms may have expired but not to ECs expressly cancelled by the Ministry of Environment and Forests (MoEF) based on the judicial orders.
In Goa’s case the Environmental Clearances were struck down by the Courts and could not have been said to have been valid.
“If the State Government's interpretation is to be accepted, then the ECs issued in 2007, based upon which the mining industry in the State of Goa virtually caused havoc by rapacious and rampant exploitation regardless of any concern for environment, health and well-being of the citizens, would have to be revived and transferred to the new lessees/successful bidders” and that the “impact of rapacious and rampant exploitation, including several severe environmental violations by the mining industry between 2007 and 2012, would have to be ignored,” the High Court bench of Justices M S Sonak and Valmiki Sa Menezes, ruled.
“The Supreme Court, in clear and unambiguous terms, held that fresh ECs were a must for mining leases in the State of Goa affected by the decision in GF-I and GF-II. This reiteration was based not only upon the explicit direction in GF-I but also material in the form of the Justice Shah Commission report, report of EAC, and report of the expert committee constituted by the Court. This direction was also based upon the Supreme Court taking a broad view that large-scale mining of iron ore led to several adverse impacts, including those related to the environment, ecology and health of the people of Goa and that almost all committed these illegalities and irregularities (if not all) mining lease holders as reported by the EAC,” the High Court also said.
“To now say that Section 8B of MMDR Act, 1957 or the EIA Notification of 13.07.2021 virtually does away with and nullifies all these clear and specific findings and directions of the court is a contention that cannot be accepted. Neither do the provisions of Section 8B support such a construction nor can it be said that Parliament intended to legislatively overrule or reverse the specific directions issued by the Supreme Court about obtaining fresh ECs,” the High Court said.
The High Court pointed to the “conscious decision of the Supreme Court (to quash the leases and ECs) cannot be bypassed by regarding the ECs which were explicitly cancelled by the MoEF order dated 23.04.2018 as valid only to grant new lessees/successful auction bidders the benefit of Section 8B of the MMDR Act, 1957.”
“This, according to us, would not be a proper mode of construing provisions of Section 8B of the MMDR Act, 1957. In any case, based upon strained construction suggested by the State of Goa, express directions of the Supreme Court judgements cannot be nullified or ignored… The proper construction of Section 8B of the MMDR Act, 1957 indicates that only valid ECs were to stand transferred and vested in the new lessees/successful auction purchasers,” the High Court also said.
