In the previous post, we had discussed the Rule 12(1)(hh) notice issued to the holders of the 88 illegally renewed leases asking them to take their property and vacate the leases. While this is an important and necessary step, it raises a number of questions.
What about other leases?
The first question is why notice has been issued to only 88 leases? According to the Goa government, there’s a large number of leases that were valid and have since expired. In response to unstarred Legislative Assembly Question 077 answered on 28-Jan-2021, the government informed the position according to them was as follows:
- One Portuguese era lease (TC 63/51) was still valid, renewed up to 22-Nov-2027
- Two leases issued in 1977 & 1978 were still valid (2/FE/77 & 1/FEMN/78). These leases have not completed the minimum 50 year period (2027/28).
- Six leases were under scrutiny / process and pending for the verification of validity. This included 1/FE/71, where the 50 year period has presumably ended in 2021. The others complete the minimum 50 year period by 2028
- Eighty-eight Portuguese-era leases were renewed in 2014-15, which were struck down in 2018. Notices have been issued only to the former leaseholders of these leases.
- Sixteen Portuguese-era leases and one lease issued in 1968 (1/NSD/BAUX/68) were issued extension orders up to 31-Mar-2020, which period has come to an end.
- One hundred and sixty Portuguese-era leases and nine leases issued after 1961 were deemed to have been extended up to 31-Mar-2020, which period has come to an end.
In summary, there are 3 valid leases, 5 potentially valid leases, while the leases that have expired are 1+88+16+1+160+9 = 275. Notices under Rule 12(1)(hh) has been issued to only 88 of these leases, leaving 187 leases where notices are yet to be issued. Surely this violates Article 14 of the Constitution that guarantees equality.
Liabilities of illegal miners.
While the erstwhile leaseholders have been asked to remove their residual assets from the leases, what about the residual liabilities?
One obvious liability is towards mine closure, where Rule 26 of the Mineral Conservation and Development Rules (MCDR) 2017 requires leaseholders to prepare and implement progressive & final mine closure plans. Leaseholders are also required to provide financial sureties that would enable mine closure in the event of bankruptcy of the leaseholder or abandonment of the mine. Mine closure plans must include
4.11 Care and maintenance during temporary discontinuance : For every five yearly review ( as given in the mining scheme), an emergency plan for the situation of temporary discontinuance or incomplete programme due to court order or due to statutory requirements or any other unforeseen circumstances, should include a plan indicating measures of care, maintenance and monitoring of status of unplanned discontinued mining operations expected to re-open in near future. This should detail item wise status monitoring and maintenance with periodicity and objective.
5. Economic Repercussions of closure of mine and manpower retrenchments :
Manpower retrenchment, compensation to be given, socio-economic repercussions and remedial measures consequent to the closure of mines should be described, specifically stating the following.
5.1 Number of local residents employed in the mine, status of the continuation of family occupation and scope of joining the occupation back.
5.2 Compensation given or to be given to the employees connecting with sustenance of himself and their family members.
5.3 Satellite occupations connected to the mining industry – number of persons engaged therein – continuance of such business after mine closes.
5.4 Continued engagement of employees in the rehabilitated status of mining lease area and any other remnant activities.
5.5 Envisaged repercussions on the expectation of the society around due to closure of mine.
IBM Guidelines for preparation of Mine Closure Plan
It seems that former leaseholders only prepared progressive mine closure plans. Financial sureties seem to be an absurdly low Rs. 25,000 / hectare. While it is thought that these mines would be auctioned, there are many reasons that many mines may not be reopened – extraction caps, preference for dump mining, specific leases may not attract bidders because of exhaustion plus the unfunded liability to eventually close the mine, etc. Will the Goa government develop a final mine closure plan to estimate the unfunded liability and recover that amount from the erstwhile leaseholders? They should.
There are other liabilities, most important of which are liabilities under the Polluter Pays Principle for historical & continuing environmental damage. A good example is the continuing run-off from dumps which leads to siltation of fields and rivers. This liability can only be estimated on the ground. The question is whether the Goa government has the skills to identify and value the damage, and if it has the will to recovery the amounts due. From newspaper reports, it seems that farmers are no longer paid for the destruction of their fields.
A third kind of liability are amounts due pursuant to illegal mining or illegalities in mining. There were claims against the former leaseholder pursuant to the 17 CA Reports, as well as the reports of the CAG. Out of Rs. 3,431.31 crores of show cause notices issued by the Goa government to the former leaseholders, less than Rs. 100 crores has been recovered so far. Goa Foundation has filed public interest litigation to recover amounts due on account of some former leaseholders extracting without a valid environmental clearance (1994 ECs case). And Goa Foundation has also filed a PIL to recover an estimated Rs. 65,058 crores pursuant to the declaration of the Supreme Court that all mining after 22-Nov-2007 was illegal while mining was stopped by then CM Manohar Parrikar on 10-Sep-2012.
By contrast, the Government of Odisha has claimed Rs. 21,932 crores from their leaseholders pursuant to the Shah Commission Report, and has already collected over Rs. 15,300 crores!
More implications soon.