Since the Goa legislative assembly elections, a change in strategy towards Goa’s iron ore mining is visible. We will discuss this in a series of posts, this being the first. The backstory first.
The Portuguese regime had issued over 800 perpetual concessions, mostly in the 1950s. At the time of Goa’s liberation in 1961, these concessions were not recognized by India, although mining continued, in effect illegally. This situation became clear in the 1981 Supreme Court judgment in Gosalia vs GN Agarwal. In 1987, just prior to the formation of Goa state, the Indian Parliament passed an Act that treated the non-existent concessions as deemed leases under the MMDR Act with effect from 1961 and expiring on 22-Nov-1987, when a first renewal would be required. Many lessees applied and received a first renewal. However, the leaseholders also challenged the constitutionality of the 1987 Act, but got no relief except on retrospective payment of royalty for the period 1961-1987. However this case is still pending awaiting the decision of a 9 judge bench on the legal issue at stake.
In 2014, the Supreme Court had ruled that all iron ore leases in the state of Goa had expired on 22-Nov-2007. This judgment threatened to dispossess the illegal miners of their ancestral leases. Under suspicious circumstances, 88 leases were renewed after the judgment and prior to the amendment of the MMDR Act on 12-Jan-2015. In its judgment of 7-Feb-2018, the Supreme Court terminated these leases as of 15-Mar-2018. Normally, leaseholders are allowed six months to take their property and vacate their lease under Rule 12(1)(gg). After some more litigation, this time was extended by the Supreme Court till 31-Jan-2021.
As we know, possession is nine-tenths of the law. All this time, the illegal miners retained possession of the mines. They provided security. They were responsible for safety. If water was required for irrigation, the illegal miners provided the pumps. They retained many employees on their payroll. Some CSR activities continued. The state was complicit in this game.
This has changed. On 6-May-2022, the state has issued notices under Rule 12(1)(hh) to the erstwhile leaseholders of the 88 mineral leases that were illegally renewed in 2014-15. Rule 12(1)(hh) of the Minerals (Other than Atomic and Hydro Carbons Energy Minerals) Concession Rules, 2016 says:
if at the end of six calendar months after the expiry or sooner termination of the lease term there shall remain in or upon the leased land, any ore or mineral, engines, machinery, plant, buildings structures, tramways, railways and other work, erections and conveniences or other property which are not required by the lessee in connection with operations in any other lands held by it under prospecting licence or mining lease, the same shall, if not removed by the lessee within one calendar month of being notified to do so by the State Government, be deemed to become the property of the State Government and may be sold or disposed of in such manner as the State Government shall deem fit without liability to pay any compensation or to account to the lessee in respect thereof.
The Minerals (Other than Atomic and Hydro Carbons Energy Minerals) Concession Rules, 2016
In effect, these notices ask the illegal miners to vacate the lease within a month, i.e., 6-Jun-2022. Restarting mining would require auctions. Media reports that an important reason is that auctions of new mines is much more difficult than auctioning an existing mine. Restarting mining quickly was a key election promise of all the political parties.
Not surprisingly, this notice has caused enormous consternation. If possession is nine-tenths of the law, they will be stuck with the remaining one-tenth. What are the options? First of all, Goa Foundation had filed a PIL in the High Court asking for the state to obey the Supreme Court order to apply this rule – the government order can be challenged on the basis that this matter is pending. However, this is highly unlikely to succeed. Second, the illegal miners can approach the Supreme Court on the basis that the 1987 Act itself has been challenged. This may have some potential although there’s been a variety of judgments, notably the 2014 and 2018 judgments that declared mining illegal and mining lease renewals illegal, despite the pending litigation. Finally, the illegal miners can try to persuade the government to withdraw the orders, pending the decision of the High Court – this has already begun. Given the past track record, different illegal miners will try different routes to see if they can succeed. Let’s hope they fail.