2024:BHC-GOA:1037-DB
PILWP-6-2024.doc
Andreza
IN THE HIGH COURT OF BOMBAY AT GOA
PUBLIC INTEREST LITIGATION WRIT PETITION NO. 6 OF 2024
WITH
MISC. CIVIL APPLICATION NO. 199 OF 2024
WITH
MISC. CIVIL APPLICATION NO. 215 OF 2024
IN
PUBLIC INTEREST LITIGATION WRIT PETITION NO. 6 OF 2024
WITH
MISC. CIVIL APPLICATION NO. 239 OF 2024
IN
PUBLIC INTEREST LITIGATION WRIT PETITION NO. 6 OF 2024
WITH
MISC. CIVIL APPLICATION NO. 1216 & 1217 OF 2024 (F)
IN
MISC. CIVIL APPLICATION NO. 239 OF 2024
AND
MISC. CIVIL APPLICATION NO. 1416 OF 2024 (F)
IN
PUBLIC INTEREST LITIGATION WRIT PETITION NO. 6 OF 2024
---------------------------------------
PUBLIC INTEREST LITIGATION WRIT PETITION NO. 6 OF 2024
1. The Mulakh Khajan Farmers Association,
with office at Haldanwadi, Mayem, Bicholim,
Goa – 403504, through its Secretary, Mr.
Sakharam Anant Pednekar, age 58 years, H.
No. 766, Gaonkarwada, Mayem, Bicholim,
Goa – 403504, Approx. Annual Income – Rs.
1,20,000/-. Aadhar No. 439600055987,
Mobile – 9767050503.
2. The Goa Foundation, through its Secretary
Dr. Claude Alvares, age 75 years, having
Regd. Office at Room No. 7, Above Mapusa
Clinic, Mapusa, Goa – 403507, PAN
No.AAAAG0249C, Income : Rs – 10 –
15,00,000/- p.a. (approx.) Registration No. -
23/Goa/86, Email id:
... Petitioners
goafoundation@gmail.com.
WITH
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MISC. CIVIL APPLICATION NO. 199 OF 2024
IN
PUBLIC INTEREST LITIGATION WP NO. 6 OF 2024
Surakshit Distributors Pvt. Ltd., a Company
incorporated under the Companies Act, 1956,
having its office at Unit No. 306, 3rd Floor,
Gera Imperium Grand, EDC Complex, Patto
Plaza, Panaji, Goa, and represented herein by
its Authorised signatory, Mr. Sushil
Khandelwal.
... Applicant
IN
1. The Mulakh Khajan Farmers Association,
with office at Haldanwadi, Mayem, Bicholim,
Goa – 403504, through its Secretary, Mr.
Sakharam Anant Pednekar, age 58 years, H.
No. 766, Gaonkarwada, Mayem, Bicholim,
Goa – 403504, Approx. Annual Income – Rs.
1,20,000/-. Aadhar No. 439600055987,
Mobile – 9767050503.
2. The Goa Foundation, through its Secretary
Dr. Claude Alvares, age 75 years, having
Regd. Office at Room No. 7, Above Mapusa
Clinic, Mapusa, Goa – 403507, PAN
No.AAAAG0249C, Income : Rs – 10 –
15,00,000/- p.a. (approx.) Registration No. -
23/Goa/86, Email id:
goafoundation@gmail.com.
V e r s u s
1. The Director of Mines and Geology,
through its Director, Ground Floor of Institute
Menezes Braganza, Panaji, Goa – 403 001.
2. The State of Goa, through its Chief
Secretary, Secretariat, Porvorim, Goa, 403
521.
3. The Deputy Collector and SDO Bicholim,
Bicholim, Goa – 403 504.
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4. The Mamlatdar Bicholim, Office of the
Mamlatdar, Bicholim, Goa – 403 504.
5. The Bicholim Police Station, through its
Police Inspector, Bicholim, Goa – 403 504.
6. The Goa State Pollution Control Board,
through its Member Secretary, near Pilerne
Industrial Estate, Opposite Saligao Seminary,
Saligao, Bardez, Goa, 403 511.
7. M/s. Blueglobe Exports Private Limited, B-
3, F-1, Prudential Paradise, Peddem, Mapusa,
Goa – 403 507. ... Respondents.
WITH
MISC. CIVIL APPLICATION NOS. 215 AND 239 OF 2024
IN
PUBLIC INTEREST LITIGATION WRIT PETITION NO. 6 OF 2024
Vedanta Limited, A public company duly
incorporated under the provisions of the
Indian Companies Act, 1956, having its
registered office at 1st Floor, C wing, Unit 103,
Corporate Avenue Atul Projects, Chakala,
Andheri (East) NA Mumbai , Mumbai City
MH 400093 IN. Having local office at Sesa
Ghor, 20 EDC Complex, Patto, Panaji, Goa,
403 001, Represented in this petition through
its authorised signatory, Mr. Benecio
Menezes, 56 years of age, Indian National,
Having residence at St. Roque Waddo,
Colvale, Bardez, Goa.
IN
... Applicant
1. The Mulakh Khajan Farmers Association,
through its Secretary Sakharam Anant
Pednekar, H. No. 776, Gaonkarwada, Mayem,
Bicholim, Goa – 403504.
2. The Goa Foundation, through its Secretary
Dr. Claude Alvares, having Regd. Office at
Room No. 7, Above Mapusa Clinic, Mapusa,
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Goa – 403507.
V e r s u s
1. The Director of Mines and Geology,
through its Director, Ground Floor of Institute
Menezes Braganza, Panaji, Goa – 403 001.
2. The State of Goa, through its Chief
Secretary, having office at the Secretariat
Complex, Porvorim, Bardez, Goa.
3. The Deputy Collector and SDO Bicholim,
Office of the Deputy Collector and SDO,
Bicholim, Bicholim, Goa.
4. The Mamlatdar, Office of the Mamlatdar,
Bicholim, Goa.
5. The Bicholim Police Station, through its
Police Inspector, Bicholim, Goa.
6. The Goa State Pollution Control Board,
through its Member Secretary, near Pilerne
Industrial Estate, Opposite Saligao Seminary,
Saligao, Goa, 403 511.
7. Blueglobe Exports Private Limited,
through its Director, B-3, F-1 Prudential
Paradise, Peddem, Mapusa, North Goa, GA –
403 507 In.
8. The Union of India, through the Secretary,
Ministry of Environment, Forests and Climate
change, Government of India, Indira
Paryavaran Bhavan, Jor Bagh Road, Aliganj,
New Delhi, 110 003. ... Respondents.
WITH
MISC. CIVIL APPLICATION NO. 1216 OF 2024 (F)
IN
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MISC. CIVIL APPLICATION NO. 239 OF 2024
IN
PUBLIC INTEREST LITIGATION WRIT PETITION NO. 6 OF 2024
Vedanta Limited, A public company duly
incorporated under the provisions of the
Indian Companies Act, 1956, having its
registered office at 1st Floor, C wing, Unit 103,
Corporate Avenue Atul Projects, Chakala,
Andheri (East) NA Mumbai , Mumbai City
MH 400093 IN. Having local office at Sesa
Ghor, 20 EDC Complex, Patto, Panaji, Goa,
403 001, Represented in this petition
through its authorised signatory, Mr. Benecio
Menezes, 56 years of age, Indian National,
Having residence at St. Roque Waddo,
Colvale, Bardez, Goa.
IN
... Applicant
1. The Mulakh Khajan Farmers Association,
through its Secretary Sakharam Anant
Pednekar.
2. The Goa Foundation, through its Secretary
Dr. Claude Alvares, having Regd. Office at
Room No. 7, Above Mapusa Clinic, Mapusa,
Goa – 403507.
V e r s u s
1. The Director of Mines and Geology,
through its Director, Ground Floor of
Institute Menezes Braganza, Panaji, Goa –
403 001.
2. The State of Goa, through its Chief
Secretary, having office at the Secretariat
Complex, Porvorim, Bardez, Goa.
3. The Deputy Collector and SDO Bicholim,
Office of the Deputy Collector and SDO,
Bicholim, Bicholim, Goa.
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4. The Mamlatdar, Office of the Mamlatdar,
Bicholim, Goa.
5. The Bicholim Police Station, through its
Police Inspector, Bicholim, Goa.
6. The Goa State Pollution Control Board,
through its Member Secretary, near Pilerne
Industrial Estate, Opposite Saligao Seminary,
Saligao, Goa, 403 511.
7. Blueglobe Exports Private Limited,
through its Director, B-3, F-1 Prudential
Paradise, Peddem, Mapusa, North Goa, GA –
403 507 In.
8. The Union of India, through the
Secretary, Ministry of Environment, Forests
and Climate change, Government of India,
Indira Paryavaran Bhavan, Jor Bagh Road,
Aliganj, New Delhi, 110 003. ... Respondents.
AND
Shri Narendra Vinayak P. Gaoncar, aged
about 50 years, Son of late Vinayak P. ...Applicant/
Gaoncar, R/o. Pilgao, Bicholim, Goa. Intervener
WITH
MISC. CIVIL APPLICATION NO. 1217 OF 2024 (F)
IN
MISC. CIVIL APPLICATION NO. 239 OF 2024
IN
PUBLIC INTEREST LITIGATION WRIT PETITION NO. 6 OF 2024
Vedanta Limited, A public company duly
incorporated under the provisions of the
Indian Companies Act, 1956, having its
registered office at 1st Floor, C wing, Unit 103,
Corporate Avenue Atul Projects, Chakala,
Andheri (East) NA Mumbai , Mumbai City
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MH 400093 IN. Having local office at Sesa
Ghor, 20 EDC Complex, Patto, Panaji, Goa,
403 001, Represented in this petition
through its authorised signatory, Mr. Benecio
Menezes, 56 years of age, Indian National,
Having residence at St. Roque Waddo,
Colvale, Bardez, Goa.
IN
... Applicant
1. The Mulakh Khajan Farmers Association,
through its Secretary Sakharam Anant
Pednekar.
2. The Goa Foundation, through its Secretary
Dr. Claude Alvares, having Regd. Office at
Room No. 7, Above Mapusa Clinic, Mapusa,
Goa – 403507.
V e r s u s
1. The Director of Mines and Geology,
through its Director, Ground Floor of
Institute Menezes Braganza, Panaji, Goa –
403 001.
2. The State of Goa, through its Chief
Secretary, having office at the Secretariat
Complex, Porvorim, Bardez, Goa.
3. The Deputy Collector and SDO Bicholim,
Office of the Deputy Collector and SDO,
Bicholim, Bicholim, Goa.
4. The Mamlatdar, Office of the Mamlatdar,
Bicholim, Goa.
5. The Bicholim Police Station, through its
Police Inspector, Bicholim, Goa.
6. The Goa State Pollution Control Board,
through its Member Secretary, near Pilerne
Industrial Estate, Opposite Saligao Seminary,
Saligao, Goa, 403 511.
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7. Blueglobe Exports Private Limited,
through its Director, B-3, F-1 Prudential
Paradise, Peddem, Mapusa, North Goa, GA –
403 507 In.
8. The Union of India, through the
Secretary, Ministry of Environment, Forests
and Climate change, Government of India,
Indira Paryavaran Bhavan, Jor Bagh Road,
Aliganj, New Delhi, 110 003. ... Respondents.
AND
Shri Trivikram Govind Prabhu Gaunkar alias
Prabhugaonkar, aged about 47 years, son of ...Applicant/
Govind Vasudev Prabhu Gaunkar, R/o. H. Intervener
No. 76, Pilgao, Bicholim, Goa 403 504
AND
MISC. CIVIL APPLICATION NO. 1416 OF 2024
IN
PUBLIC INTEREST LITIGATION WRIT PETITION NO. 6 OF 2024
Vedanta Limited, A public company duly
incorporated under the provisions of the
Indian Companies Act, 1956, having its
registered office at 1st Floor, C wing, Unit 103,
Corporate Avenue Atul Projects, Chakala,
Andheri (East) NA Mumbai , Mumbai City
MH 400093 IN. Having local office at Sesa
Ghor, 20 EDC Complex, Patto, Panaji, Goa,
403 001, Represented in this petition
through its authorised signatory, Mr. Benecio
Menezes, 56 years of age, Indian National,
Having residence at St. Roque Waddo,
Colvale, Bardez, Goa.
IN
... Applicant
1. The Mulakh Khajan Farmers Association,
through its Secretary Sakharam Anant
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Pednekar.
2. The Goa Foundation, through its Secretary
Dr. Claude Alvares, having Regd. Office at
Room No. 7, Above Mapusa Clinic, Mapusa,
Goa – 403507.
V e r s u s
1. The Director of Mines and Geology,
through its Director, Ground Floor of
Institute Menezes Braganza, Panaji, Goa –
403 001.
2. The State of Goa, through its Chief
Secretary, having office at the Secretariat
Complex, Porvorim, Bardez, Goa.
3. The Deputy Collector and SDO Bicholim,
Office of the Deputy Collector and SDO,
Bicholim, Bicholim, Goa.
4. The Mamlatdar, Office of the Mamlatdar,
Bicholim, Goa.
5. The Bicholim Police Station, through its
Police Inspector, Bicholim, Goa.
6. The Goa State Pollution Control Board,
through its Member Secretary, near Pilerne
Industrial Estate, Opposite Saligao
Seminary, Saligao, Goa, 403 511.
7. Blueglobe Exports Private Limited,
through its Director, B-3, F-1 Prudential
Paradise, Peddem, Mapusa, North Goa, GA
– 403 507 In.
8. The Union of India, through the
Secretary, Ministry of Environment, Forests
and Climate change, Government of India,
Indira Paryavaran Bhavan, Jor Bagh Road,
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Aliganj, New Delhi, 110 003.
... Respondents.
AND
1. Shankar Chandrakant Jalmi, aged 25.
2. Savlo Raghu Kavlekar, aged 49, both
major, residents of H. No. …., Bagwada,
Pilgao, Bicholim, Goa.
3. Sudhakar Vasudev Vaignkar, Age 43,
major, resident of H. No. 65,Bagwadao,
Bicholim, Goa.
4. Govind Shankar Kavlekar, age 62, major,
resident of H. No. 23, Gaonkar Wada,
Pilgao, Bicholim, Goa. ...Applicant/
Interveners
-----------------------------------------
Ms. Norma Alvares, Advocate with Mr. Om D’Costa, Advocate
for the Petitioners.
Mr Y. V. Nadkarni, Advocate with Mr Nilay Naik and Ms.
Simran S. Khadilkar, Advocate for the Applicant in MCA No.
199/2024.
Mr. D. Pangam, Advocate General with Mr. Deep Shirodkar,
Additional Government Advocate for Respondent nos. 1 to 5.
Mr. Manish Salkar, Government Advocate for Respondent no.6-
GSPCB.
Mr. Raviraj Chodankar, Central Government Standing
Counsel for the Union of India-Respondent No.8.
Mr. A. D. Bhobe, Advocate with Ms. A. Fernandes Advocate for
Respondent No. 9.
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Mr. Janak Dwarkadas, Senior Advocate
(Through V.C.) with Mr.
Shivan Desai, Mr. A. Gosavi, Advocate with Ms. Krupa Naik and Mr.
Guruprasad Naik, Advocates for the Interveners-Applicants in MCA
No. 215/2024 and MCA No. 239/2024.
Mr. H. D. Naik, Advocate for the Applicant in MCA No.
1216/2024(F) and MCA No. 1217/2024(F).
Mr. Nigel Da Costa Frias, Advocate with Ms. Sonadevi Nishad
and Mr. Shane Coutinho, Advocates for the Applicants-Interveners in
MCA No.1416/2024(F)
----------------------------
CORAM: M. S. KARNIK &
VALMIKI MENEZES, JJ.
RESERVED ON : 26th JUNE 2024
PROUNOUNCED ON : 29th JUNE 2024
JUDGMENT (Per M. S. Karnik, J.)
1. We have taken up this petition for final disposal in view of the
earlier order passed and with the consent of all parties.
2. It is the case of the petitioner that the otherwise tranquil
situation in the village will be jeopardised as a result of the large scale
transportation of mineral ore. The safety of the villagers, and that of
the school going children will be endangered with the sudden increase
in the traffic of trucks/tippers carrying the ore. The resultant noise
pollution as well as the environmental pollution resulting from such
unwarranted intrusion in the serene and peaceful environs of the
village is in complete conflict with the cherished principles of
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fundamental right enshrined by Article 21 of the Constitution of India.
The submission is that this massive invasion will completely disturb
the equilibrium of the village which serves only the business interests
of the project proponent to the detriment of the villagers. The
villagers say that they do not deserve such intrusion.
3. The concern expressed by the villagers is genuine. On one hand
are the fundamental rights of villagers and on the other are the
economic interests of the State as well as the rights of the project
proponent. These are competing interests in conflict with each other.
4. It goes without saying that it is the foremost duty of the State to
work towards achieving and maintaining a fine balance between
competing interests taking into account various myriad
considerations. Present is a case where there is an apparent conflict
between the fundamental rights of the villagers and that of the State.
The State finds mining and as a consequence transportation necessary
to further its economic interest for the development of the State. A
conflict in the present case has arisen between the right to life under
Article 21 of the Constitution of India on one hand and Article 19(1)(g)
of the Constitution of India on the other. The villagers claim a right to
a dignified existence in a safe pollution free environment. The State
asserts its economic right necessitating such transportation which
villagers submit amounts to bulldozing the otherwise peaceful life
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which they are accustomed to for a long time. The task of achieving
this fine balance is surely a difficult one as observed by His Lordship
in K. S. Puttaswamy (Aadhaar-5J) vs. Union of India1. The
observations which form a part of a dissenting opinion in K. S.
Puttaswamy (supra) are significant. An ideal situation would be one
which would preserve the core of the right for both sets of citizens
whose entitlements to freedom appears to be in conflict. Realistically,
drawing balances is not a simple task. Balances involve sacrifices and
the foregoing of entitlements.
5. While forming an opinion, we have extensively sought guidance
from the aforementioned decision of the Supreme Court and the
observations in Rajeev Suri vs. Delhi Development Authority &
Ors.2, which we have referred to in the later part of our order.
6. Let us now consider the facts of the present case. Our attention
is invited to the interim order dated 17.01.2024 and the subsequent
orders passed during the pendency of the petition. This petition raises
an important issue in the public interest about the transportation of
mineral ore by road through the village of Mayem. The petition as
filed was limited to the problems to be faced by village ‘Mayem’
1 (2019) 1 SCC 1
2
(2022) 11 SCC 1
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7. By subsequent orders, the scope of the petition was expanded to
the transportation of ore through the villages in Goa. The State of Goa
and the project proponents opposed restrictions in the transportation
of ore through the village roads asserting their rights on the basis of
valid permissions and right to carry on business. Examination of such
conflicting interests is surely not an easy task. How do we achieve the
right balance while considering competing interests in the present
case; does such transportation pass the muster of the relevant
legislations; what should be the safeguards; are the measures to
mitigate the perils of transportation through village roads adequate,
are questions which arise for our consideration. Please show
compassion to those living in the villages is the fervent plea of Ms.
Norma Alvares, learned counsel for the petitioner.
8. The petitioners contended that the permissions granted by the
Goa State Pollution Control Board (‘GSPCB’, for short), and the
Director of Mines and Geology (‘DMG’, for short), were without any
application of mind to several relevant considerations, including, but
not restricted to the conditions referred to in the Office Memorandum
(OM) dated 29.10.2014, issued by the Ministry of Environment,
Forests and Climate Change (Annexures to the petition at pages 40
and 42 of the paper book) and the ground conditions at the Mayem
village. Pursuant to the filing of the petition, the GSPCB and DMG
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have by way of SOPs, proposed several safeguards and measures for
safe transport and as fairly submitted by Ms. Norma Alvares, these
measures are positive. Such submission is made by the learned
Counsel for the petitioners with a caveat that the concern of the
villagers must be more adequately addressed in the best manner
possible. She submits that though several safeguards are put in place,
the environmental concerns affecting the safety and health of the
villagers must be monitored effectively and addressed from time to
time with the aid of real time monitoring of pollution with modern
sophisticated equipment.
9. Learned Advocate General has serious objection to the course
adopted by us in expanding the scope of the PIL as according to him
there are no pleadings to justify such a course. We strongly feel that
the concern of transportation through village roads needs to be
addressed. We cannot ignore the larger issue of such large scale
transportation through the village roads. Do we overlook the concerns
of those residing in these villages through which roads the
transporting operations are to take place only on some technical
objections raised? We do appreciate the submission that the concerns
may differ from village to village. It is the duty of the State and the
statutory authorities to conduct a scientific exercise in evaluating what
requirements are best suited on a village to village basis to ensure the
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safety of the life and limb of its subjects. Howsoever small the
population may be, the basic aspiration of their right to live should not
be bulldozed on some technical considerations. The Court is not
expected to shut its eyes and not even question the State as to what the
measures proposed for the safety of the villagers are. There is not the
slightest doubt in our mind that such a course is necessary. The
petition was filed specific to village Mayem. During the course of
hearing, learned Advocate General submits a decision is taken that
there is to be no transportation through village ‘Mayem’.
10. Let us examine what are the measures in place to regulate
transportation through such villages in the first place. The problems
cited of transportation of ore through the villages will have to be
addressed in the context of two scenarios which are :-
(i) Transportation of the ore which was already extracted
in the course of the decisions in Goa Foundation vs.
Union of India & Ors.3 (referred to as Goa Foundation-
I) and Goa Foundation vs. Sesa Sterlite Limited &
Ors.4 (referred to as Goa Foundation-II), which we refer
to as ‘e-auction ore’; and
(ii) Transportation of ore by the project proponent i.e.
Vedanta, who has intervened in the present case in whose
favour there exists a 50-year lease having been granted
Environmental Clearance (EC, for short) under the
3
(2014) 6 SCC 590
4
(2018) 4 SCC 218
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Environment Protection Act. This aspect pertains to
transportation pursuant to the EC granted as a result of
fresh leases executed.
11. The second aspect i.e. in respect of EC granted to Vedanta, need
not detain us much. This petition does not challenge the EC granted
to Vedanta. We make it clear that though learned Senior Advocate
Shri Janak Dwarkadas was at pains to point out that the EC has been
granted pursuant to a detailed examination by an expert body
constituted under the EP Act, we do not express any opinion on such
submission in this petition. The limited issue that we are examining is
transportation of ore through the villages which allegedly creates
disharmony in the fundamental right to life of the villagers. We make
it clear that it is open for the aggrieved persons to lay a challenge to
the EC on its own merits and in accordance with law before the forum
competent to entertain such a challenge. It must be noted that the
measures and safeguards recommended and which are part of the EC
are accepted by Vedanta.
12. The first aspect of transportation of ‘e-auction ore” is something
we need to examine in some detail. Ms. Alvares alleged that the
conditions imposed by the GSPCB and DMG were not complied with
by the transporters during the earlier regime. It was pointed out that
there was incessant transportation of ore through trucks right from
4.30 a.m. in the morning till 6.30 p.m. in the evening. It is submitted
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that such transportation is a source of pollution that has affected the
entire village and the villagers.
13. On the basis of the submission of learned Counsel appearing for
the petitioners and hearing the respondents, this Court was of the
prima facie opinion that there was not much application of mind by
either the GSPCB and DMG before the clearances or transit permits
were issued in the context of the route now proposed by the project
proponent, i.e. the seventh respondent. This Court prima facie
observed that the authorities, without adverting to several relevant
considerations, not to mention the Ministry’s OM dated 29.10.2014,
mechanically issued the clearance or the transit pass. It was noticed
that there was confusion about the roles the GSPCB and the DMG was
expected to play in such matters affecting the lives and properties of
the villagers. After referring to the provisions of OM dated
29.10.2014, this Court was of the opinion that some measures had to
be put in place which would safeguard the life and properties of the
Villagers. The relevant directions issued from paragraph 26 onwards
which form part of the interim Order dated 17.01.2024 read thus :
“26. We direct the DMG and GSPCB to file
detailed affidavits on the issue of grant of
permissions, etc., for transportation of ore through
villages in the State of Goa. The affidavits, as far as
possible, should state the procedure that is
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presently followed and the procedure that the
authorities would like to follow in the future in case
there are any shortcomings in the existing
procedure. We think that the DMG and GSPCB
should act in tandem and coordinate with each
other so that proper procedures are evolved. For
this, if possible, the authorities should hold a
meeting. Other stakeholders, like the
representatives of the mining industry,
transportation industry, environmentalists,
representatives of the Panchayat, etc., could also be
invited to such meetings so that some policy which
takes care of the interests of all stakeholders could
be evolved.
27. The affidavits must also deal with an action plan
for implementation or enforcement of the
conditions included in the permissions. There is no
point in imposing conditions to prevent pollution
and hardships to villagers if there is no will or
proper mechanism for effective implementation. It
is not uncommon that considerable police forces are
deployed when villagers raise their voices against
ore transportation through villages. While it is
improper for the villagers to take the law into their
own hands, the Authorities must be vigilant in the
enforcement of the conditions imposed for the
benefit of such villagers. If the transporters
disregard such conditions with impunity, strict
action must be taken.
28. Since there is no clarity on the procedures for
granting permissions for transportation or ores
through villages, and at least prima facie, we get the
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impression that DMG and GSPCB are passing the
buck on each other without each of them assuming
any responsibility, we direct that until the next date,
no permissions shall be granted for transportation
of ore by private parties through villages, without
the leave of this Court. Such a direction is necessary
to avoid a repetition of what has happened in the
present case. Besides, we propose to dispose of this
Petition at an early date.
29. We stand over this matter to 20.02.2024. The
affidavits should be filed by 12.02.2024 by giving
advance copies to the learned counsel for the
petitioners. If the petitioners wish to file any
rejoinder, they may do so on or before 20.02.2024
by giving advance copies to the learned counsel for
the respondents. We also direct the Petitioners to
implead and serve the Union of India through the
Ministry of Environment, Forests and Climate
Change.
30. The matter is posted for final disposal at the
admission stage.”
14. Learned Counsel for the petitioners submitted that having
regard to the measures and safeguards provided and placed on record
by the GSPCB and DMG pursuant to the filing of the petition so far as
transportation of ‘e-auction ore’ is concerned, the spirit of the
conditions which are set out in the OM of 2014 has been imbibed in
the Standard Operating Procedure (‘SOP’ for short). At one stage,
learned Advocate General did proceed to canvas that the OM of 2014
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does not bind the GSPCB or the DMG as the said OM is only an
executive instruction which does not pass muster of Section 3 of ‘The
Environment (Protection) Act, 1986, (herein after referred to as the
EP Act for short). In view of the aforesaid submission of the learned
Counsel for the petitioners, we refrain from expressing any opinion on
such contention of learned Advocate General in this petition.
15. It needs to be considered whether there should be a complete
ban on transport of the ore through village routes or providing
safeguards and measures for mitigating the concerns of the villagers
while permitting transportation can be a solution. For a better
understanding, it would be apposite to refer to the decisions of the
Supreme Court in Goa Foundation vs. Union of India & Ors.5
(supra) and Goa Foundation vs. Sesa Sterlite Limited & Ors.6
(supra). The facts related to mining in Goa is set out by Their
Lordships in Goa Foundation-I, which reads thus :
“2. Prior to 19-12-1961 when Goa was a Portuguese
territory, its Portuguese Government had granted
mining concessions in perpetuity to concessionaires.
On 19-12-1961, Goa was liberated and became part
of the Indian Union and on 1-10-1963, the Mines
and Minerals (Development and Regulation) Act,
1957 (for short "the MMDR Act") was made
applicable to the State of Goa. On 10-3-1975, the
5
(2014) 6 SCC 590
6
(2018) 4 SCC 218
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Controller of Mining Leases issued a Notification
calling upon every lessee and sub-lessee to file
returns under Rule 5 of the Mining Leases
(Modification of Terms) Rules, 1956 and sent copies
of the notification to the concessionaires in Goa.
Aggrieved, the concessionaires moved the Bombay
High Court, Goa Bench, and by judgment dated 29-
9-1983, in Vassudeva Madeva Salgaocar v. Union
of India, the Bombay High Court restrained the
Union of India from treating the concessions as
mining leases and from enforcing the notification
against the concessionaires.
3. Parliament thereafter passed the Goa, Daman
and Diu Mining Concessions (Abolition and
Declaration as Mining Leases) Act, 1987 (for short
"the Abolition Act") which received the assent of the
President on 23-5-1987. Section 4 of the Abolition
Act abolished the mining concessions and declared
that with effect from the 20th day of December,
1961, every mining concession will be deemed to be a
mining lease granted under the MMDR Act and that
the provisions of the MMDR Act will apply to such
mining lease. Section 5 of the Abolition Act further
provided that the concession holder shall be deemed
to have become a holder of the mining lease under
the MMDR Act in relation to the mines in which the
concession relates and the period of such lease was
to extend up to six months from the date when the
Abolition Act received President's assent i.e. up to
22-11-1987. On 14-10-1987, sub-rules (8) and (9)
were inserted in Rule 24-A of the Mineral
Concession Rules, 1960 (for short "the MC Rules")
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which deal with renewal of mining leases in Goa,
Daman and Diu.
4. The Abolition Act was challenged by the lessees
before the Bombay High Court in a writ petition.
The High Court passed an interim order permitting
the lessees to carry on mining operations and the
mining business in the concessions for which
renewal applications had been filed under Rule 24-
A of the MC Rules. Subsequently, the High Court
held in its judgment dated 20-6-1997 that the
Abolition Act was valid but Section 22(1)(a) of the
Abolition Act would operate prospectively and not
retrospectively. The concessionaires filed special
leave petition against the judgment dated 20-6-1997
before this Court. On 2-3-1998, this Court passed an
interim order permitting the concessionaires to
carry on mining operations and mining business in
the mining areas for which renewal applications
have been made on the condition that the lessee
pays to the Government dead rent from the date of
commencement of the Abolition Act. Subsequently,
this Court granted leave in the special leave petition
and continued the aforesaid interim order.
The Justice Shah Commission and its Report
5. As reports were received from various State
Governments of widespread mining of iron ore and
manganese ore in contravention of the provisions of
the MMDR Act, the Forest (Conservation) Act,
1980, the Environment (Protection) Act, 1986 and
other rules and guidelines issued thereunder, the
Central Government appointed the Justice Shah
Commission under Section 3 of the Commissions of
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Inquiry Act, 1952 by Notification dated 22-11-2010.
Paras 2 and 3 of the Notification, which are
relevant, are extracted hereinbelow:
"2. The terms of reference of the Commission
shall be-
(i) to inquire into and determine the
nature and extent of mining and trade and
transportation, done illegally or without lawful
authority, of iron ore and manganese ore, and
the losses therefrom; and to identify, as far as
possible, the persons, firms, companies and
others that are engaged in such mining, trade
and transportation of iron ore and manganese
ore, done illegally or without lawful authority;
(ii) to inquire into and determine the
extent to which the management, regulatory
and monitoring systems have failed to deter,
prevent, detect and punish offences relating to
mining, storage, transportation, trade and
export of such ore, done illegally or without
lawful authority, and the persons responsible
for the same;
(iii) to inquire into the tampering of
official records, including records relating to
land and boundaries, to facilitate illegal
mining and identify, as far as possible, the
persons responsible for such tampering; and
(iv) to inquire into the overall impact of
such mining, trade transportation and export
done illegally or without lawful authority, in
terms of destruction of forest wealth, damage
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to the environment, prejudice to the livelihood
and other rights of tribal people, forest
dwellers and other persons in the mined areas,
and the financial losses caused to the Central
and State Governments.
3. The Commission shall also recommend
remedial measures to prevent such mining,
trade, transportation and export done illegally
or without lawful authority."
6. The Justice Shah Commission visited Goa and
issued notices under Section 4 of the Commissions
of Inquiry Act, 1952 calling for information from the
authorities concerned and the lessees and submitted
its interim report on 15-3-2012 to the Ministry of
Mines, Union of India. On 7-9-2012, the Justice
Shah Commission Report on Goa was tabled in
Parliament along with an Action Taken Report of
the Ministry of Mines and on 10-9-2012 the State
Government of Goa passed an Order suspending all
mining operations in the State of Goa with effect
from 11-9-2012. Pursuant to this Order of the
State Government, on 11-9-2012 and 12-9-2012 the
District Magistrates of the State of Goa banned
transportation of iron ore in their respective
districts and the Director of Mines and Geology
ordered for verification of mineral ore which was
already extracted. On 13-9-2012, the Director of
Mines and Geology, Government of Goa issued
show-cause notices to 40 mining leases. On 14-9-
2012, the Ministry of Environment and Forests of
the Union of India also directed that all
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environmental clearances granted to mines in the
State of Goa be kept in abeyance.
7. On the basis of findings in the Report of the
Justice Shah Commission on illegal mining in the
State of Goa, Goa Foundation has filed Writ Petition
(C) No. 435 of 2012 as public interest litigation
praying for directions to the Union of India and the
State of Goa to take steps for termination of the
mining leases of lessees involved in mining in
violation of the Forest (Conservation) Act, 1980, the
Mines and Minerals (Development and Regulation)
Act, 1957, the Mineral Concessions Rules, 1960, the
Environment (Protection) Act, 1986, the Water
(Prevention and Control of Pollution) Act, 1974 and
the Air (Prevention and Control of Pollution) Act,
1981 as well as the Wild Life (Protection) Act, 1972.
Goa Foundation has prayed that a direction be
issued to the respondents to prosecute all those who
have committed offences under the different laws
and are involved in the pilferage of State revenue
through illegal mining activities in the State of Goa
including the public servants who have aided and
abetted the offences. Goa Foundation has also
sought for appointment of an independent authority
with full powers to take control, supervise and
regulate mining operations in the State of Goa and
to ensure the implementation of the laws. Besides,
the aforesaid main reliefs, Goa Foundation has also
prayed for some incidental and consequential
reliefs.
8. On 5-10-2012, this Court issued notice in Goa
Foundation v. Union of India to the respondents and
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directed the Central Empowered Committee (for
short "CEC") to submit its report on the writ petition
and also directed that till further orders, all mining
operations in the leases identified in the report of the
Justice Shah Commission and transportation of iron
ore and manganese ore from those leases, whether
lying at the mine-head or stockyards, shall remain
suspended, as recommended in the report of the
Justice Shah Commission.
9. Different mining lessees of the State of Goa and
the Goa Mining Association also filed writ petitions
in the Bombay High Court, Goa Bench for a
declaration that the report of the Shah Commission
is illegal and for quashing the findings in the Report
of the Justice Shah Commission and also for
quashing the Order dated 10-9-2012 of the
Government of Goa suspending mining operations
in the State of Goa and the Order dated 14-9-2012 of
the Ministry of Environment and Forests,
Government of India, directing that the
environmental clearances granted to the mines in
the State of Goa be kept in abeyance. These writ
petitions have been transferred to this Court for
hearing along with the hearing of Writ Petition
(Civil) No. 435 of 2012 filed by Goa Foundation.
10. The writ petitions and the transferred cases were
heard during September, October and November
2013. On 11-11-2013 an order was passed by this
Court directing that the inventory of the excavated
mineral lying ores in different
mines/stockyards/jetties/ports in the State of Goa
made by the Department of Mines and Geology of
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the Government of Goa be verified and thereafter the
whole of the inventoried mineral ores be sold by e-
auction and the sale proceeds (less taxes and royalty)
be retained in separate fixed deposits (leasewise) by
the State of Goa till the Court delivers the judgment
in these matters on the legality of the leases from
which the mineral ores were extracted. The Court
has also directed that this entire process of
verification of the inventory, e-auction and deposit
of sale proceeds be monitored by a Monitoring
Committee appointed by the Court. By the said order
dated 11-11-2013, this Court also constituted an
Expert Committee to conduct a macro-EIA study on
what should be the ceiling of annual excavation of
iron ore from the State of Goa considering its iron
ore resources and its carrying capacity, keeping in
mind the principles of sustainable development and
intergenerational equity and all other relevant
factors. On 11-11-2013 the case was also reserved for
judgment.”
16. Upon considering the submissions, Their Lordships in Goa
Foundation-I held thus :
“87. In the result, we declare that:
87.1. The deemed mining leases of the lessees in
Goa expired on 22-11-1987 and the maximum of 20
years renewal period of the deemed mining leases in
Goa expired on 22-11-2007 and consequently
mining by the lessees after 22-11-2007 was illegal
and hence the impugned Order dated 10-9-2012 of
Government of Goa and the impugned Order dated
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14-9-2012 of MoEF, Government of India are not
liable to be quashed.
87.2. Dumping of minerals outside the leased area
of the mining lessees is not permissible under the
MMDR Act and the Rules made thereunder.
87.3. Until the order dated 4-8-2006 of this Court
is modified by this Court in IA No. 1000 in T.N.
Godavarman Thirumulpad v. Union of India, there
can be no mining activities within one kilometre
from the boundaries of national parks and
sanctuaries in Goa.
87.4. By the order dated 4-12-2006 in Goa
Foundation v. Union of India, this Court has not
prohibited mining activities within 10 kilometres'
distance from the boundaries of the national parks
or wildlife sanctuaries.
87.5. It is for the State Government to decide as a
matter of policy in what manner mining leases are
to be granted in future but the constitutionality or
legality of the decision of the State Government can
be examined by the Court in exercise of its power of
judicial review.”
17. After the declaration and directions in Goa Foundation-I, some
controversy arose as the State of Goa granted second renewals to the
mining lease holders. It was one of the contention of the petitioners in
Goa Foundation-II that the State of Goa was obliged to grant fresh
mining leases in accordance with law and not second renewals to the
mining lease holders. The observations of Their Lordships in Goa
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Foundation-II which also contains reference to the observations in
Goa Foundation-I are significant, which read thus :
“1. Rapacious and rampant exploitation of our
natural resources is the hallmark of our iron ore
mining sector coupled with a total lack of concern
for the environment and the health and well-being
of the denizens in the vicinity of the mines. The sole
motive of mining leaseholders seems to be to make
profits (no matter how) and the attitude seems to be
that if the rule of law is required to be put on the
backburner, so be it. Unfortunately, the State is
unable to firmly stop violations of the law and other
illegalities, perhaps with a view to maximise
revenue, but without appreciating the long- term
impact of this indifference. Another excuse
generally put forth by the State is that of
development, conveniently forgetting that
development must be sustainable and equitable
development and not otherwise.
2. Effective implementation and in some
instances circumvention of the mining and
environment related laws is a tragedy in itself. Laxity
and sheer apathy to the rule of law gives mining
leaseholders a field day, being the primary
beneficiaries, with the State being left with some
crumbs in the form of royalty. For the State to
generate adequate revenue through the mining
sector and yet have sustainable and equitable
development, the implementation machinery needs
a tremendous amount of strengthening while the law
enforcement machinery needs strict vigilance.
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Unless the two marry, we will continue to be mute
witnesses to the plunder of our natural resources
and left wondering how to retrieve an irretrievable
situation.
3. The Government of India appears to have
received information of large-scale illegal mining of
iron ore and manganese ore in different States in
contravention of the provisions of the Mines and
Minerals (Development and Regulation) Act, 1957
(the MMDR Act); the Forest (Conservation) Act,
1980; the Environment (Protection) Act, 1986 and
other rules and guidelines issued on the subject from
time to time.
4. Acting on this information, the Government
of India appointed Justice M. B. Shah, a former
Judge of this Court as a Commission of Inquiry
under Section 3 of the Commissions of Inquiry Act,
1952 by a Notification dated 22-11-2010. The terms
of reference of the Commission for the State of Goa
were as follows:
"2. The terms of reference of the Commission
shall be-
(i) to inquire into and determine the nature
and extent of mining and trade and
transportation, done illegally or without
lawful authority, of iron ore and manganese
ore, and the losses therefrom; and to
identify, as far as possible, the persons,
firms, companies and others that are
engaged in such mining, trade and
transportation of iron ore and manganese
ore, done illegally or without lawful
authority;
(ii) to inquire into and determine the extent
to which the management, regulatory
transportation, trade and export of such
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ore, done illegally or without lawful
authority, and the persons responsible for
the same;
(iii) to inquire into the tampering of official
records, including records relating to land
and boundaries, to facilitate illegal mining
and identify, as far as possible, the persons
responsible for such tampering; and
(iv) to inquire into the overall impact of
such mining, trade, transportation and
export, done illegally or without lawful
authority, in terms of destruction of forest
wealth, damage to the environment,
prejudice to the livelihood and other rights
of tribal people, forest dwellers and other
persons in the mined areas, and the
financial losses caused to the Central and
State Governments.
3. The Commission shall also recommend
remedial measures to prevent such mining,
trade, transportation and export done illegally
or without lawful authority."
5. Justice Shah visited Goa and after
calling for and receiving information from the
authorities concerned as well as the mining
leaseholders, he submitted a report on 15-3-2012
and another on 25-4-2012 to the Ministry of Mines
in the Government of India. The reports were tabled
in Parliament on 7-9-2012 along with an Action-
Taken Report and as a result, the Government of
Goa passed an order dated 10-9-2012 suspending all
mining operations in the State with effect from 11-9-
2012. The Ministry of Environment and Forests
(MoEF) of the Government of India acted similarly
and kept in abeyance the environmental clearances
granted to 139 mines (actually 137 mines - there is
some duplication) in the State of Goa by an order
dated 14-9-2012.
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6. Subsequent to the reports given by Justice
Shah, a writ petition was filed by Goa Foundation in
this Court being WP (C) No. 435 of 2012. The writ
petition was a public interest litigation praying, inter
alia, for directions to the Union of India and the State
of Goa to take steps to terminate the mining leases
where mining was carried out in violation of various
statutes.
7. Similarly, several mining leaseholders
preferred writ petitions in the Bombay High Court for
a declaration that the reports given by Justice Shah
are illegal and also for quashing the orders dated 10-
9-2012 and 14-9-2012 whereby mining operations
were suspended and environmental clearances were
kept in abeyance. The writ petitions filed in the High
Court were transferred to this Court for hearing along
with WP (C) No.435 of 2012.
8. This Court heard all these matters and
rendered its decision in Goa Foundation v. Union of
India on 21-4-2014. Among other conclusions arrived
at, it was held by the Court that all the iron ore and
manganese ore leases had expired on 22-11-2007.
Consequently, any mining operation carried out by
the mining leaseholders after that date was illegal. It
was also held that all the mining leaseholders had
enjoyed a first deemed renewal of the mining lease
and for a second renewal an express order was
required to be passed in view of and in terms of
Section 8(3) of the MMDR Act. For a second renewal
of the mining lease, it was held that the State
Government must apply its mind and record reasons
for renewal being in the interest of mineral
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development and the necessity to renew the mining
lease. Any decision taken by the State Government
should also be in conformity with the constitutional
provisions. The decision taken by the State of Goa to
grant a mining lease in a particular manner or to a
particular party could be examined by way of judicial
review. It was also held that the orders dated 10-9-
2012 and 14-9-2012 are not liable to be quashed and
that they would continue till decisions are taken to
grant fresh leases and fresh environmental
clearances for mining projects.” (emphasis supplied)
18. The Supreme Court in Goa Foundation-II concluded thus :
“154 - In view of our discussion, we arrive at the
following conclusions:
154.1. As a result of the decision, declaration and
directions of this Court in Goa Foundation, the State
of Goa was obliged to grant fresh mining leases in
accordance with law and not second renewals to the
mining lease holders.
154.2. The State of Goa was not under any
constitutional obligation to grant fresh mining leases
through the process of competitive bidding or
auction.
154.3. The second renewal of the mining leases
granted by the State of Goa was unduly hasty,
without taking all relevant material into
consideration and ignoring available relevant
material and therefore not in the interests of mineral
development. The decision was taken only to
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augment the revenues of the State which is outside
the purview of Section 8(3) of the MMDR Act. The
second renewal of the mining leases granted by the
State of Goa is liable to be set aside and is quashed.
154.4. The Ministry of Environment and Forest was
obliged to grant fresh environmental clearances in
respect of fresh grant of mining leases in accordance
with law and the decision of this Court in Goa
Foundation and not merely lift the abeyance order of
14th September, 2012.
154.5. The decision of the Bombay High Court in
Lithoferro v. State of Goa (and batch) (2014 SCC
Online Bom 997) giving directions different from
those given by this Court in Goa Foundation is set
aside.
154.6. The mining lease holders who have been
granted the second renewal in violation of the
decision and directions of this Court in Goa
Foundation are given time to manage their affairs
and may continue their mining operations till 15th
March, 2018. However, they are directed to stop all
mining operations with effect from 16th March, 2018
until fresh mining leases (not fresh renewals or other
renewals) are granted and fresh environmental
clearances are granted.
154.7. The State of Goa should take all necessary
steps to grant fresh mining leases in accordance with
the provisions of the Mines and
Minerals(Development and Regulation) Act, 1957.
The Ministry of Environment and Forest should also
take all necessary steps to grant fresh environmental
clearances to those who are successful in obtaining
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fresh mining leases. The exercise should be
completed by the State of Goa and the Ministry of
Environment and Forest as early as reasonably
practicable.
154.8. The State of Goa will take all necessary steps
to ensure that the Special Investigating Team and
the Team of Chartered Accountants constituted
pursuant to the Goa Grant of Mining Leases Policy,
2014 give their reports at the earliest and the State
of Goa should implement the reports at the earliest,
unless there are very good reasons for rejecting
them.
154.9. The State of Goa will take all necessary steps
to expedite recovery of the amounts said to be due
from the mining lease holders pursuant to the show
cause notices issued to them and pursuant to other
reports available with the State of Goa including the
report of Special Investigating Team and the Team
of Chartered Accountants.
155. The writ petitions and SLPs are disposed of in
accordance with the above conclusions and
directions.”
19. The State of Goa, therefore, now had to proceed with the
auction of the ore (‘e-auction ore’), which was already extracted; and
secondly, initiate the process of issuing fresh mining leases (allotment
of blocks) in accordance with the directives of the Supreme Court as
per law.
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20. What is in issue in this PIL are the problems caused by bulk
transport of minerals (iron ore) through mining villages in the mining
zone of Goa that have plagued village communities in the past. The
petitioner expects the Government to accept their rights to a clean,
healthy and pollution free environment as the primary consideration
which should guide them while granting transport permissions to the
mining companies/transporters of the minerals, rather than the
commercial interests of the project proponent/transporters. The
grievance is that though statutory provisions are in place to regulate
such operations, they are grossly inadequate and worse still poorly
implemented. The submission is that poor implementation of norms
lead to road deaths, insufferable dust pollution, destruction of roads
and water delivery infrastructure, occupation of the road by heavy
vehicles from dawn to dusk resulting in the degeneration of quality of
life in the villages. It is submitted that with a fresh regime of mining
now commencing, it was necessary that the transportation Rules
ought to have been comprehensively re-examined especially in the
context of findings of the two-year study of environmental impacts of
mining done by the Dhanbad Institute of Mines, by the Ministry of
Environment. According to the petitioners there is no scientific study
of the village routes for sustainable transport before granting the
permissions. Thus, it is vehemently urged that the transportation of
the ore by means of trucks/tippers will not only disturb the peace and
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tranquillity of the villages but seriously affect the safety of the villagers
apart from increased pollution which will have an adverse effect on
the health of the villagers.
21. As indicated earlier, learned Advocate General submitted that so
far as village Mayem is concerned, the grievance is worked out as no
transportation will be permitted from this village. It is further
submitted that there are adequate safeguards in place in the form of
rules, notifications, under the EP Act and also SOPs have been issued
pursuant to the interim orders passed by this Court providing for
adequate safety measures for safeguarding life and property of the
villagers apart from addressing environmental concerns expressed.
22. We completely agree with learned Counsel for the petitioners,
that there is bound to be heavy increase of transportation through the
village roads as the materials on record indicate. However, in
balancing the conflicting rights, we must bear in mind the
observations of the Supreme Court in the matter in Rajeev Suri vs.
Delhi Development Authority & Ors.(supra). Their Lordships
made significant observations for striking a just balance between two
competing environmental and development concerns. Paragraph 519
to paragraph 528 reads thus :
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“519. Indubitably, environment and development are
not sworn enemies of each other. It would be an
anomalous approach to consider environment as a
hurdle in development and vice versa. The entities
like EAC and NGT are created to strike a just balance
between two competing interests and a time-tested
principle of striking this balance is timely invocation
of mitigating environmental measures amidst a
development activity. True that mere application of
certain mitigating measures may not alleviate
environmental concerns in all matters and in some
circumstances, the project is simply
incomprehensible with the environment. But as long
as a legitimate development activity can be carried on
in harmony with the idea of environmental
protection and preservation including sustainable
development, the Courts as well as expert bodies
should make their best endeavour to ensure that
harmony is upheld and hurdles are minimised by
resorting to active mitigating measures.
520. The principle of sustainable development and
precautionary principle need to be understood in a
proper context. The expression “sustainable
development” incorporates a wide meaning within its
fold. It contemplates that development ought to be
sustainable with the idea of preservation of natural
environment for present and future generations. It
would not be without significance to note that
sustainable development is indeed a principle of
development, it posits controlled development. The
primary requirement underlying this principle is to
ensure that every development work is sustainable;
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and this requirement of sustainability demands that
the first attempt of every agency enforcing
environmental rule of law in the country ought to be
to alleviate environmental concerns by proper
mitigating measures. The future generations have an
equal stake in the environment and development.
They are as much entitled to a developed society as
they are to an environmentally secure society.
521. By the Declaration on the Right to
Development, 1986, the United Nations has given
express recognition to a right to development.
Article 1 of the Declaration defines this right as:
“ i. The right to development is an inalienable
human right by virtue of which every human
person and all peoples are entitled to
participate in, contribute to, and enjoy
economic, social, cultural and political
development, in which all human rights and
fundamental freedoms can be fully realized.”
522. The right to development, thus, is intrinsically
connected to the preservance of a dignified life. It is
not limited to the idea of infrastructural
development, rather, it entails human development
as the basis of all development. The jurisprudence in
environmental matters must acknowledge that there
is immense interdependence between the right to
development and the right to natural environment.
523. In International Law and Sustainable
Development, Arjun Sengupta in the chapter
“Implementing the Right to Development
[International Law and Sustainable Development
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— Principles and Practice (Publisher : Martinus
Nijhoff, Edn. 2004) p. 354.] ” notes thus:
“… Two rights are interdependent if the level of
enjoyment of one is dependent on the level of
enjoyment of the other…”
The concern of the regulatory agencies is to
weed out the unsustainable from the
development plan and to parallelly ensure that
the right to development is not trumping upon
any other right. Sengupta further notes:
“… There is an improvement in the right to
development only if at least one of the
constituent rights improves and no other right
deteriorates or is violated, which means the
right to development conforms to the principle
of the indivisibility of human rights…
[International Law and Sustainable
Development — Principles and Practice ”
524. The precautionary principle duly mandates
that all agencies of the State, including Courts, must
make their best endeavour to ensure that precaution
is instilled in the process of development. The very
requirement of prior EC is born out of this need for
precaution. It is a manifestation of the precautionary
principle in India and if development work is carried
out in furtherance of prior EC and such EC is not
vitiated by illegality, it would be a case of proper
adherence with the precautionary principle.
525. In matters of balancing between competing
environmental and development concerns, the Court
has to be project-specific. In environmental matters,
even one fact here or there may have the effect of
attributing a totally distinct character to the project
and accordingly, the scope of judicial review may
vary. This sentiment is best reflected in the following
words of Professor Schotland [ D.C. Circuit Judicial
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Conference, Environmental Protection : Law and
Policy, 2nd Edn. (Cambridge : Cambridge University
Press, 2007) p. 122.] who proposed ranking of
standards of judicial review according to strictness:
“3. … I have always thought of scope of review
as a spectrum, with de novo at one end, with
unconstitutionality at the other end, and in
between a number of what I will call “mood-
points” or degrees of judicial aggressiveness or
restraint, such as preponderance of the
evidence, clearly erroneous, substantial
evidence on the whole record, scintilla of
evidence, abuse of discretion and last, right
next to or even into unconstitutionality,
arbitrary and capricious. And since these are
only “mood-points”, there is considerable room
within each for difference.”
526. The proper balance of judicial review in
environmental matters in a constantly developing
society is a matter of great debate across all
jurisdictions. In Ethyl Corpn. v. Environmental
Protection Agency [Ethyl Corpn. v. Environmental
Protection Agency, 426 US 941 (1976). Ed. : Cert.
denied in Ethyl Corpn. v. Environmental Protection
Agency, 426 US 941 (1976) against Ethyl Corpn. v.
Environmental Protection Agency, 541 F 2d 1 (DC
Cir 1976).] , the observations of Wright, J. present a
just balance. He observed thus:
“There is no inconsistency between the
deferential standard of review and the
requirement that the reviewing court involve
itself in even the most complex evidentiary
matters; rather, the two indicia of arbitrary and
capricious review stand in careful balance. The
close scrutiny of the evidence is intended to
educate the court. It must understand enough
about the problem confronting the agency to
comprehend the meaning of the evidence relied
upon and the evidence discarded; the questions
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addressed by the agency and those bypassed;
the choices open to the agency and those made.
The more technical the case, the more intensive
the court's effort to understand the evidence,
for without an appropriate understanding of
the case before it the court cannot properly
perform its appellate function. …”
527. Wright, J. in Ethyl Corporation [Ethyl Corpn.
v. Environmental Protection Agency, 426 US 941
(1976). Ed. : Cert. denied in Ethyl Corpn. v.
Environmental Protection Agency, 426 US 941
(1976) against Ethyl Corpn. v. Environmental
Protection Agency, 541 F 2d 1 (DC Cir 1976).] then
notes the need for realising the limits of judicial
function thus:
“But the function must be performed with
conscientious awareness of its limited nature.
The enforced education into the intricacies of
the problem before the agency is not designed
to enable the court to become a superagency
that can supplant the agency's expert
decision-maker. To the contrary, the court
must give due deference to the agency's ability
to rely on its own developed expertise. The
immersion in the evidence is designed solely to
enable the court to determine whether the
agency decision was rational and based on
consideration of the relevant factors. It is
settled that we must affirm decisions with
which we disagree so long as this test is met.…”
(emphasis supplied)
528. They must always look for a careful balance
when two equally relevant interests compete with
each other. The task may not be easy, but is the only
reasonable recourse. For the proper application of
these principles, the first and foremost thing to be
kept in mind is the nature of the project. In the
present case, the subject project is an independent
building and construction project wherein one-time
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construction activity is to be carried out. It is not a
perpetual or continuous activity like a running
industry. It is absolutely incomprehensible to accept
that a project of this nature would be unsustainable
with the needs and aspirations of future generations.
Furthermore, the increase in footprint is not shown
to be substantial and the inclusion of new Members
of Parliament after the delimitation exercise is
anyway going to lead to an inevitable increase in
footprint (floating though) that cannot be
countenanced as a concern here.”
23. We have therefore to look for a careful balance when two
equally relevant interests compete with each other. At this juncture
itself, we may refer to the MCA No. 239 of 2024 filed by Vedanta
Limited. Shri Janak Dwarkadas submitted that Vedanta Limited has
been granted Environmental Clearance (EC) to the project for Block –
I, Bicholim Mineral Block and Block VII-Cudnem Mineral Block. It is
submitted that the EC is granted after following a detailed procedure
laid down under the EP Act and the Rules framed thereunder. Our
attention is invited to the Notification dated 14.09.2012 published by
the Ministry of Environment, Forest and Climate Change, which
provides for requirements of prior environmental clearances for
matters falling under category 'A' of the Schedule. Shri Dwarkadas
submitted that the Expert Appraisal Committee comprises of domain
experts. It is submitted that rigorous conditions are imposed in the
EC. It is further submitted that transportation is a mechanism
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provided under the Expert Appraisal Committee (EAC) regime. It is
submitted that the EAC comprises of persons who are outstanding
environmental policy experts with wide expertise in the relevant
development sector. It consists of only professionals and experts
fulfilling the qualifying criteria provided by the notification. It is
submitted that a detailed procedure is prescribed for appraisal. A
procedure is conducted for public hearing. It is thus submitted that
before granting EC, it has to pass the muster of the stringent
provisions of the EP Act and the Rules framed therein.
24. It is already indicated by us that we are not examining the
challenge to the EC hence we refrain from expressing any opinion to
the legality or otherwise of the EC. In appropriate proceedings, such
challenge can be gone into. We also make it clear that what is being
recorded by us are the assurances accepted by Vedanta in the matter
of transportation. We may not be understood to mean that we have
examined the legality and propriety of the conditions for transport in
the EC and the Consent to Operate (‘CTO’ for short). The challenge to
these conditions in the EC and the CTO regarding the transport and
the measures incorporated is kept open for consideration in
appropriate proceedings before the appropriate forum as and when a
proper challenge to the EC as well as the CTO is made.
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25. Shri Dwarkadas was at pains to point out that Vedanta’s consent
to operate incorporates all the safeguards necessary to ensure that the
competing rights of the villagers regarding their safety and
environmental concern are properly balanced with that of the right of
the project proponent to carry mining operations pursuant to the valid
EC. Shri Dwarkadas submitted that Vedanta's affidavit dated
17.06.2024 provides for measures of safeguards to prevent pollution
under CTO. On instructions, Shri Dwarkadas submits that Vedanta
shall be strictly complying with all conditions of transportation
mentioned at serial nos. 13 to 24 of the CTO.
26. The CTO has been granted by the GSPCB under Section 25/26
of the Water (Prevention & Control of Pollution) Act, 1974 and under
Section 21 of the Air (Prevention & Control of Pollution) Act, 1981 and
Authorization under Rule 6(i) of the Hazardous and Other Wastes
(Management and Transboundry Movement) Rules 2016, as amended
thereafter. In the EC granted to Vedanta Limited, we find that during
the site inspection, certain observations were made by the sub-
committee. The observations at item 4 and the reply of the project
proponent thereon are relevant, reading thus :
“4. The Project Proponent needs to bypass the
public road and also to explore the possibility of
increasing the capacity of the truck so as to reduce
the no. of trips. The EAC opined that the Project
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Proponent needs to revisit the traffic load by
considering the cycle time and waiting time. The
Project Proponent needs to submit the action plan
for strengthening the road and for converting the
unpaved road into concrete road.
The Project Proponent submitted the map showing
the transportation route comprising of dedicated
road corridor and public road. The total travel
distance upto Jetty is 5.48 kms (4.54 km dedicated
road and 0.94 km MDR-20 Public Road). Traffic
load and effective distance between two trucks are as
follows :-
S.No. Transp Quantit Tonne Trips Mode
ortatio y (In s/Day per of
n TPA) day trnas
workin port
g days
1 237 30,00, 1265 1205 Road
000 8
Total trips per day 1205
The road witdth details for various segments are
as follows :
Dedicated Road corridor
3.31 km 1.23 km
12-15 mts 7 mts wide Road
wide Road
Further, the Project Proponent submitted the
following details :
i. Capacity of truck is 10.5 tons as per directives
of Dept. Of Mines & Geology, Goa.
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ii. Total Handling per day is 12658 tons/day
iii. Transportation timings are 6.00 a.m. to 7.00
am, 8.00 a.m. to 12.45 pm and 2.00 p,m to 5.45
pm. Therefore, the effective transportation time
is 9.30 hrs.
iv. Per Hour Handling is : 1332 tons/hour
v. No. of vehicles per Hour (One Way): 127
vehicles
vi. No. of Vehicles per Hour (to and fro) : 254
vehicles
vii. The Speed of vehicle is 25 KMPH and the lead
distance is 5.48 kms.
viii. The time taken for 5.48 km is 13.15 mins for
each truck and loading time is 1 min, weighment
time at both source location is 2 min, Tarpaulin
typing and untying time is 2 min, unloading time
1 min and waiting time 10 min.
ix. Each truck length is 15’.5” (4.58 m)
x. Distance from truck to truck is 5 m both side –
10 m
xi. Each vehicle occupies a min. distance of 14.58
m =~ 15 m
xii. The length of road is 5.48 Km = 5480
xiii. No. of vehicle which can travel on this road
for one side =5480/15=365, However we would
be plying only 127 trucks hence effective distance
between two vehicles is 43 m.
The Project Proponent submitted the following
mitigation measures for transportation :
i. Public road is hot mixed and same will be
maintained.
ii. Dedicated road is proposed to be hot mixed in
phased manner.
iii. Entire Dedicated transportation route is
surrounded by thick Green Belt
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iv. Transportation vehicles shall be properly
maintained to minimize the exhaust emission.
v. Regular tests shall be carried out to check
exhaust emission and PUC certification of
transportation vehicles at prescribed interval.
vi. Transportation trucks will be loaded with
prescribed capacity and covered with tarpaulin
before leaving mines premises.
vii. Overloading of the material will be avoided.
viii. Regular monitoring of the emission levels.
ix. Over speeding of Vehicle will not be allowed.
x. Traffic Marshalls shall be provided for
regulating movement of vehicles as well as for
safety of persons.
xi. Training will be given to all drivers about safe
driving.
xii. Regular water sprinkling by means five hired
water tanker of 10kL capacity on haul road and
loading points will be carried out.
xiii. Used of fixed dust suppression system on
haul roads
xiv. Installation of two wheel washed system (one
each at the exit of the dedicated road and jetty exit
respectively.
xv. Manual and mechanised machines for road
sweeping.
xvi. Washing of mine exit points/Junctions
(Mayem, Pilgao and Jetty exit area) after
transportation hours/at night with water tanker
having pipe arrangements
xvii. Underpass proposed at Mayem junction to
prevent interface with public.”
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27. By way of a note submitted at the time of hearing, a summary of
major compliances ensured by Vedanta are as under:
CTO CONDITION COMPLIANCE STATUS
13 The mining unit 24 x 7 real
shall install time online
online noise monitoring
monitoring station
station connected
approved by with
USEPA, TUV or GSPCB has
CPCB, CSR or been set-up
MCERTs at the
transportation
route near
sarmanas in
consultation
with the Board
and connect the
same to thye
Board server
within one
month of
receipt of this
Consent and
submit
compliance
report to the
Board.
14 The mining unit Installed
shall install
Camera
CCTV Camera
shall give
at exit gate
the status
from mine
of
towards the
compliance
jetty to monitor
by Trucks
if the trucks are
to GSPCB
properly
covered with
tarpaulin before
exit and should
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be connected
online to
GSPCB, within
one month of
receipt of this
Consent to
Operate
16 The This shall
trucks/tippers be
engaged in complied
transportation with
of ore shall
have with
atleast six
inches free
board after
filling the cargo
box to avoid
spillage
17 All
trucks/tippers
engaged in the
transportation
of ore shall be
covered with
tarpaulin and
the tarpaulin
shall be
properly
fastened to the
cargo box
ensure the ore
does not get air
borne or spill
on the road.
20 The mining unit Wheel
shall provide Washing
wheel washing System
facility for the already set-
ore transport up
vehicles shall be
provided at the
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exit point of the
mine
23 The mining This shall
company be
should submit complied
details with
regarding
transportation
of ore
mentioning
Source,
Destination,
Qty., No. Of
trips (tipper
trucks), Route
(names of
villages through
which
transportation
takes place),
Remarks
28. Shri Dwarkadas submitted, on instructions, that Vedanta is
bound by the aforesaid conditions and the mitigating measures
provided for transportation. Furthermore, even the CTO has provided
for conditions for transportation mentioned at serial nos. 13 to 24. In
the affidavit dated 17.06.2024 filed by Vedanta, it is assured that all
the conditions pertaining therein will be strictly adhered to.
Statements in the affidavit and the assurances aforementioned are
accepted as an undertaking to this Court.
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29. This Court by an Order dated 22.04.2024, directed the GSPCB
to file an affidavit pursuant to the inspection carried out and place a
status report on record. So far as Vedanta is concerned, the route
applied for permission was NSP-1, Top-NBP Junction-NBP-Matwada
Junction-Sarmanas jetty. As directed by DMG, the Board officials
inspected the site along with unit representative on 03.05.2024.
Following were the recommendations for pollution control safeguard:
“Recommendations for pollution control
safeguard
•
The truck/tippers engaged in transportation of ore shall
have sufficient free board after filling the cargo box to avoid
spillage.
•
All trucks/tippers engaged in the transportation of ore
shall be covered with tarpaulin and the tarpaulin shall be
properly fastened to the cargo box to ensure the ore does not get
air borne or spill on the road.
•
In case of break down of loaded trucks/tippers unloading
of ore at the road side shall be strictly avoided.
•
The roads within mining lease areas shall be sprinkled
with water to suppress dust pollution.
•
Spillage of ore on the public roads shall be removed
immediately on occurrence.
•
The mining company should make suitable arrangement
for sweeping of roads affected due to transportation of iron ore.
•
The mining firm should manage the daily trips in
staggered manner in consultation with DMG, so that traffic
congestion is avoided at major junctions.
•
The Board shall carry out monitoring along the route
through the Ministry of Environment, Forests and Climate
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Change approved lab and monitoring charges shall be recovered
from the transporters/mining firms as per actual. The
Transportation/mining firms shall pay an advances of Rupees
Three lakhs towards the monitoring charges.
•
The Department of Mines to provide the transportation
route for enabling the Board to identify suitable monitoring
locations. The Department may also ensure power supply for the
monitoring stations.
•
Speed of ore carrying trucks should be controlled by
online GPS monitoring done by DMG through its authorized
agency.
•
Road sweeping machines may be jointly/severally
developed in hotspot areas/ stretches.
•
The shoulders of the mining transport roads may be tarred
whenever needed.
•
DMG may ensure maintenance of public road in the mining
area with respect to repair of potholes/widening of roads
whenever necessary.
•
The Operator is required to carry out manual wheel
washing in order to clean the wheels of the trucks and subdue dust
arising out of it whenever wheel washing stations are not
installed.
•
In case the air quality standards are breached the transport
frequency should be reduced and the transporters to be levied
polluter pays penalty.
Permission can be granted to above mentioned route.”
30. Shri Dwarkadas submitted that the Project Proponent-Vedanta
is accepting all these safeguards and assures this Court on instructions
that the conditions will be strictly followed and implemented. The
learned Advocate General as well as learned Counsel for the
implementing agencies assures that the monitoring will be strict and
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effective and not an eye wash. We accept these assurances as
undertaking to this Court.
31. It is submitted by Shri Dwarkadas that in any case the
transportation of Vedanta is through a dedicated corridor and not
through village roads. The stretch of 0.9 kms though not a part of
dedicated corridor is not a village road. Learned Senior Advocate
submitted that they are even willing to provide for additional
safeguards for this non-village/Major District Road of 0.9 kms by
deployment of traffic marshals to avoid congestion and inconvenience
to the public at large on arrival of the ferry. Whether to accept these
additional safeguards is something which the DMG and transport
authorities shall look into and take an informed decision depending on
the ground conditions.
32. MCA No.1416/2024, is an intervention filed by Shri Shankar
Chandrakant Jalmi and others in Vedanta’s application. Upon hearing
Mr. Frias, learned Counsel for the interveners, we are satisfied that the
grievance about the road being illegally constructed through the lands
of the interveners cannot be made a subject matter of this PIL Petition
as and by way of an intervention application. It is for the Applicant-
intervener to resort to appropriate remedies available in law. If any
authority is required in support of this view, we may refer to the
decision of the Supreme Court in Saraswati Industrial Syndicate
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Ltd. vs. Commissioner of Income Tax, Haryana, Rohtak7. In
paragraph 12, Their Lordships held that the only purpose of granting
an intervention application is to entitle the intervener to address
arguments in support of one or the other side. Keeping all
contentions open with liberty to avail of appropriate remedies in
accordance with law, the intervention application is disposed of.
33. Let us now examine the measures and safeguards provided for
transportation of 'e-auction ore'. A meeting was convened by DMG
along with the Officials of GSPCB, Transport Department, Police
Department, Stakeholders, Transporters, Panchayat Representatives
on 29.01.2024 at 3.30 p.m. It was decided that the DMG and GSPCB
should mutually devise a Standard Operating Procedure (SOP) for
grant of route approvals for transportation of ore through village
roads. The Standard Operating Procedure (SOP) for grant of route
approvals for transportation of ore through village roads, reads thus :
“1. The transporter will first approach the
Directorate of Mines and Geology for approval of the
route of transportation. In their application they shall
indicate the approximate width of the road and facts
about number of houses along the route and
availability of alternate route. The Directorate of
Mines and Geology will examine the applications and
decide upon the route to be allowed for
transportation. Upon such approval, the transporter
7
(1999) 3 SCC 141
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will apply to the GSPCB for setting up monitoring
stations on the route. After the GSPCB sets up the
stations, the transporter will then apply to the DMG
for transit permits, which shall be accordingly
decided by DMG.
2. The transporter upon receiving transit permit
shall ensure that all conditions of transportation are
adhered and complied. All trucks shall be registered
with the Department and fitted with GPS.
3. GEL shall continuously monitor Vehicle speed
and any Violation (above 40 km/hr) shall entail
penalty i.e. Trucks shall be blocked for 3 days and
further as per the Order dated 26/04/2016.
4. On the Bhumija Potal GEL through VTS
System shall ensure that the total number of trips
shall be restricted per Operator on the route to min
20 and maximum 40 per hour.
5. The road congestion shall be monitored by
GEL on Bhumija Ore Monitoring System on a real
time basis and accordingly trips shall be restricted.
6. Intimation about permitted transport shall be
made to SP. North, SP. South and SP Traffic
informing them that transporter has to strictly follow
the Goa (Prevention of Illegal Mining, Storage and
Transportation of Minerals) Rules, 2013, Order of the
Directorate of Mines & Geology dated 26/04/2016,
check whether the above conditions are followed by
the Transporters and monitor the same.
7. The timing of the Ore Transportation along the
designated route should be from 8.00 am to 1.00 pm
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with a break from 1.00 pm to 2.00 pm and then
transportation can continue from 2.00 pm to 5.45 pm
from the source location.
8. GEL should ensure that no trip sheets are
generated beyond the prescribed time so that
transportation of Ore happens only within the
specified time.”
34. Apart from the aforesaid, there are in place “The Goa
(Prevention of Illegal Mining Storage and Transportation of Minerals)
Rules 2013, published in the Official Gazette, of the Government of
Goa, dated 17.10.2013. Rule 17 under Chapter V deals with Regulation
of Transport and Extraction. The Regulation provides for various
stipulations regarding transporting the ore. These Rules shall be
scrupulously followed and measures provided effectively monitored.
Rule 23 provides for reasonable restrictions on transport reading
thus :
“23. Reasonable Restriction on Transport.- The
Government shall have power to impose reasonable
restrictions, such as, restricting the number of
carriers to be permitted for transport of mineral,
fixing the maximum number of years for using
carriers for mining transport, deciding a cut off date
after which the carrier registered with Transport
Department shall not be registered for
transportation of the mining ore or any other similar
restriction that may be necessary to ensure smooth
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flow of traffic in the State, to counter congestion on
State roads, for public safety, to regulate damage to
ecology and environment of the State due to
haphazard movement of trucks or vehicles or due to
any other mode of transport authorized to carry ore
including barges.”
35. Our attention is also invited to the instructions containing route
safety in the matters concerning transportation on road issued by the
DMG on 26.04.2016. The instructions are for strict compliance by the
truck owners, machinery owners, leaseholders, traders, end users, etc.
These instructions are issued in exercise of powers under the Goa
(Prevention of illegal Mining, Storage and Transportation of Minerals)
Rules, 2013 and all other powers enabling in this behalf. The
instructions are thus :
“INSTRUCTIONS CONCERNING ROAD SAFETY
IN MATTERS CONCERNING TRANSPORTATION
ON ROAD
Following instructions are issued to all Truck
Owners, Machinery Owners, Leaseholders, Traders,
Endusers, etc. for strict compliance in exercise of
powers under the Goa (Prevention of Illegal Mining,
Storage and Transportation of Minerals) Rules, 2013
and all other powers enabling in this behalf:
1. Since Hon'ble Supreme Court of India in Writ
Petition No. 435/2012 in order dated 21/04/2014
directed the State Government to strictly enforce the
Goa (Prevention of Illegal Mining, Storage and
Transportation of Minerals) Rules, 2013, as such in
exercise of power under Rule 17(10) of Goa
(Prevention of Illegal Mining, Storage and
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Transportation of Minerals) Rules, 2013, the speed
limit for vehicles used for transportation of minerals
is fixed at 40 km/hr.
2. The upper speed limit is applicable to the trucks
registered with department irrespective of the facts
whether it is involved in transportation of minerals
or is driven for any other purpose. The speed limit
shall be applicable to all such registered vehicles
throughout the State of Goa and throughout the year
so that confidence is reposed in the citizen that such
vehicles shall not endanger the lives of other
commuters on road.
3. The software with the help of VTS device fitted on
transportation vehicles shall automatically debar all
the trucks found to be exceeding the speed limit for
the period mentioned as under:
(1) 1st Violation: Debarred upto 1 day
(2) 2nd Violation: Debarred upto 3 days
(3) 3rd Violation: Debarred upto 7 Days
(4) 4th Violation: Debarred upto 10 days
(5) 5th Violation: Debarred upto 15 days
(6) 6th Violation: Debarred upto 30 days
(7) 7th Violation: Debarred upto 60 days
(8) 8th Violation: Debarred upto full season
4. If in exigency situation if the truck exceeds
limit beyond 40 km/hr. upto 50 km/hr., it shall not
be treated as wilful violation of the speed limit. For
this purpose any increase in speed of vehicle above
40 km/hr. up to 60 second at a time shall be
presumed to be such exigency and shall not be
treated as wilful violation of speed limit.
5. The list of violators shall be displayed on the
website in the late evening of the same day or on next
day.
6. It shall be the duty of the
Leaseholder/Trader/end User, Transportation
Contractors etc. not to employ such debarred
vehicles' for any activities concerning Major Minerals
like using such vehicles for internal movements
within lease or jetty or storage points.
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7. If the debarred vehicle is used for
transportation of the minor minerals like sand,
laterite stones, rubbles, murram etc. during when it
was debarred, such vehicle may be made liable for
exorbitant fines' so also person who employed such
vehicles.
8. Since debarring of trucks is done by use of
software, the Social Status, Political Status or
Economical Status either of the truck owner or driver
shall not influence either monitoring or process of
debarring trucks.
9. The registration of vehicles with the
department is voluntary, as such once registered with
the department, the owner and driver of the truck or
machinery shall be governed by provisions of the
MMDR Act, 1957 and rules made therein, so also
administrative instructions issued by Department
from time to time.
10. Irrespective of financial arrangements or other
commercial decision with regards to employing of
vehicle between Lease Holders, traders and endusers
etc. and owner of vehicles or machinery, the
department shall fake serious note if any attempt by
owner of vehicle or through others' to illegal stop the
transport. The department reserves the right to take
stern action against such person if they are found to
have stopped or abated legal transportation in
accordance with law which is authorised by this
department.
11. The department shall monitor all the vehicles
registered with it throughout the year, as such VTS
device of all the vehicles registered with department
shall be active throughout the year irrespective of the
fact whether it is mining season or otherwise.
12. The choice of vehicles to be used for
transportation concerning the particular lease
holder, traders or end users shall be exclusively left
to the choice of lease holders, traders or end users. As
such mere registration of vehicle with department
shall not give any rights to any of the vehicle owner
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to get business of transportation as a matter of right
from the department/lease holder, end user etc.
13. The vehicle engaged for one lease hold
area/end user shall be expressively barred for
undertaking transportation or other allied activities
for other lease holder/end user on the same day.
14. The time for transportation of minerals
though starts from 6 a.m. to 10 p.m. the same may be
modified from time to time at different locations'
taking into accounts the usage of infrastructure
facilities by members of public, so also all school
going children etc.
15. To decongest the roads it is hereby ordered
that there shall be equal way bridges at loading and
unloading points.
16. Proper care shall be taken by the owner and
driver of the vehicle to cover the minerals with
turpentine etc. so that no wastage of mineral takes
place at the same time dust pollution is avoided.
17. The Lease Holders or transportation
contractors, end users shall ensure that before
vehicles leaves their premises, the tyres of the
vehicles are washed properly so that dust pollution
on the road due to tyres 'can be avoided.
18. The trucks owners shall ensure that
speedometer of vehicles are in good condition so as
to enable the driver to control the speed of the
vehicle and drive within the speed limit.
19. When any violation shall be noticed, the
message of debarring of the truck shall be sent to all
the owners/drivers on mobile numbers provided by
them to department for over speeding. The duration
for which they are debarred shall be intimated by
auto generated SMS and when such message is
received, it shall be the duty of such owner/driver not
to use vehicle for any mining related activity during
such period, any wilful defines of such instruction
shall be solely attributed to such owner/driver and
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employing of such debarred vehicle shall be liable for
further grievous action both monitory and otherwise.
20. In case when vehicle registered with the
department meets with an accident, it shall be
presumed to be at fault and strict action shall be
initiated against such vehicle. It shall be the duty of
the vehicle owner to prove his innocence.
21. It is hereby clarified that whenever the old
vehicles shall be replaced, they shall be replaced with
new vehicles of capacity of at least 15 tons.
The above instructions are issued not only for
implementation of the Goa (Prevention of illegal
Mining, Storage and Transportation of Minerals)
Rules, 2013 but also for honouring directions of the
Hon'ble Supreme Court of India. The said action is
initiated so that confidence is reposed in the minds of
general public that the transportation of ore is not
only in compliance with legal requirements but also
keeping in mind safety of the general public, which is
of paramount importance.
Since actions are initiated by the help of
software with electronics monitoring devices there is
no scope of human intervention for favouring any
person or against any person as such should be
taken into right spirit so that necessary corrective
majors are taken.
Place: Panaji sd/-
(Prasanna A.
Acharya)
Dated: 26th April, 2016. Director of Mines & Geology
(emphasis supplied)
36. The underlined portion of the instructions is significant. DMG
is conscious of the directions of the Supreme Court. It also has in
mind safety of the general public. As far as back as in 2016, the need
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was felt to use software to do away with the scope for any human
intervention. As experts concerned with the safety of citizens,
adopting modern technology, upgrading software should be routine.
To this end, we expect the DMG and GSPCB to be proactive. The
suggestions of learned Counsel for the petitioners which we have dealt
with in the later part of this judgment assumes relevance and need to
be seriously looked into. As an expert body, we expect the DMG and
GSPCB to examine these suggestions and depending on the scientific
study enforce them if found useful.
37. In respect of transportation of 'e-auction ore', vide Corrigendum
dated 06.06.2023, the DMG has imposed the following restrictions on
traffic movement on diferent transportation routes. Such
restrictions read thus:
CORRIGENDUM
Subject: Transportation of Ore
This Department vide Memorandum
No.03/66/2023/Major/Mines/194 dated
05/04/2023 had put restriction on number of
trips per hour to avoid traffic congestion on
village roads. This restriction stands amended
to the extent given below:
The traffic movement on different
transportation routes will be monitored by
Goa Electronics Limited on real time basis and
the number of trips will be staggered between
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20 trips to 40 trips per hour depending on the
traffic congestion on the roads.
Sd/-
(Dr. S. Shanbhogue)
Director & Ex-officio Joint Secretary
38. Now we come to OM dated 29.10.2014 issued by the Ministry of
Environment, Forests and Climate Change, as regards the impact of
mining activities on habitations-issues related to the mining Projects
wherein habitations and villages are the part of mine lease areas or
habitations and villages are surrounded by the mine lease area. The
said OM provides thus :
OFFICE MEMORANDUM
Subject: Impact of mining activities
on Habitations-Issues related to the
mining Projects wherein Habitations and
villages are the part of mine lease areas or
Habitations and villages are surrounded
by the mine lease area- Regarding.
The Ministry has been receiving mining
villages
proposals wherein the habitations and
are
part of mine lease areas or habitations and
villages are surrounded by the mine lease area.
2. To discuss the impact of mining activities
on habitations and to develop a code of practice on
these issues, a meeting was held under the
Chairmanship of Shri M.S. Nagar, Chairman EAC
(Non Coal Mining Sector) on 23.06.2014. After
detailed deliberations by the Experts, the following
suggestions were made as part of mitigation
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measures to avoid adverse impact of mining
operations in the case of such
habitations/villages:-
a) The Project Authority shall adopt
Best Mining Practice for the given mining
conditions. In the mining area, adequate
number of check dams, retaining
walls/structures, garland drains and
settling ponds should be provided to arrest
the wash-off with rain water in catchment
area.
b) The natural water bodies and or
streams which are flowing in and around
the village should not be disturbed. The
Water Table should be nurtured so as not
to go down below the pre-mining period. In
case of any water scarcity in the area, the
Project Authorities have to provide water to
the villagers for their use. A provision for
regular monitoring of water table in open
dug well located in village should be
incorporated to ascertain the impact of
mining over ground water table.
c) The illumination and sound at night
at project sites disturb the villages in
respect of both human and animal
population. Consequent sleeping disorders
and stress may affect the health in the
villages located close to mining operations.
Habitations have a right for darkness and
minimal noise levels at night. The Project
Proponents (PPs) must ensure that the
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biological clock of the villagers is not
disturbed by orienting the floodlights/
masks away from the villages and keeping
the noise levels well within the prescribed
limits for day/night hours.
d) The Project Authority shall make
necessary alternative arrangements, where
required, in consultation with the State
Government to provide alternate
arrangements for livestock grazing. In this
context, Project Authority should
implement the directions areas for the
Hon’ble Supreme Court with regard to
acquiring grazing land. The sparse trees on
such grazing ground, which provide mid-
day shelter from the scorching sun should
be scrupulously guarded against felling, lest
the cattle abandon the grazing ground or
return home by noon.
e) Where ever blasting is undertaken as
part of mining activity, the Project
Authority shall carry out vibration studies
well before approaching any such habitats
or other buildings to evaluate the zone of
influence and impact of blasting on the
neighbourhood. Within 500 meters of such
sites vulnerable to blasting vibrations,
avoidance of use of explosives and adoption
of alternative means of mineral extraction,
such as ripper/dozer combination/rock
breakers/surface miners etc. should be
seriously considered and practiced
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wherever practicable. A provision for
monitoring of each blast should be made so
that the impact of blasting on nearby
habitation and dwelling units could be
ascertained. The covenant of lease deed
under Rule 31 of MCR 1960 provides that
no mining operations shall be carried out
within 50 meters of public works such as
public roads and buildings or inhabited
sites except with the prior permission from
the Competent Authority.
f) Main haulage road in the mine
should be provided with permanent water
sprinklers and other roads should be
regularly wetted with water tankers fitted
with sprinklers. Crusher and material
transfer points should invariably be
provided with Bag filters and or dry fogging
system. Belt- conveyors should be fully
covered to avoid air borne dust.
g) The Project Authority shall ensure
that the productivity of agricultural crops is
not affected due to mining operations. Crop
Liability Insurance Policy has to be taken
by the PP as a precaution to compensate for
any crop loss. The impact zone shall be 5km
from the boundary of mine lease area for
such insurance policy. In case, several
mines are located in a cluster, the
Associations of owners of the cluster mines,
formed inter-alia, to sub-serve such an
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objective, shall take responsibility for
securing such Crop Liability Policy.
h) In case any village is located within
the mining leasehold which is not likely to
be affected due to mining activities during
the life of mine, the Expert Appraisal
Committee (EAC) should consider the
proposal of Environmental Clearance (EC)
for reduced mining area. The Mining lease
may be executed for the area for which EC
is accorded. The mining plan may also be
accordingly revised and required
stipulations under the MMDR Act, 1957
and MCR, 1960 met.
i) Transportation of the minerals by
road passing through the village shall not
be allowed. A 'bypass' road should be
constructed (say, leaving a gap of at least
200 meters) for the purpose of
transportation of the minerals so that the
impact of sound, dust and accidents could
be mitigated. The PP shall bear the cost
towards the widening and strengthening of
existing public road network in case the
same is proposed to be used for the Project.
No road movement should be allowed on
existing village road network without
appropriately increasing the carrying
capacity of such roads.
j) Likewise, alteration or re-routing of
foot paths, pagdandies, cart roads, and
village infrastructure/public utilities or
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roads (for purposes of land acquisition for
mining) shall be avoided to the extent
possible and in case such acquisition is
inevitable, alternative arrangements shall
be made first and then only the area
acquired. In these types of cases, Inspection
Reports by site visit by experts may be
insisted upon which should be done
through reputed Institutes.
k) As CSR activities by Companies
including the Mining Establishments has
become mandatory up to 2% of their
financial turn-over, Socio Economic
Development of the neighborhood Habitats
could also be planned and executed by the
PPs more systematically based on the 'Need
based door to door survey’ by established
Social Institutes/Workers on the lines as
required under TOR. "R&R
Plan/compensation details for the Project
Affected People (PAP) should be furnished.
While preparing the R&R Plan, the relevant
State/National Rehabilitation &
Resettlement Policy should be kept in view.
In respect of SCs/STs and other weaker
sections of the society in the study area, a
need based sample survey, family-wise,
should be undertaken to assess their
requirements, and action programmes
prepared and submitted accordingly,
integrating the sectoral programmes of line
departments of the State Government. It
may be clearly brought out whether the
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village located in the mine lease area will be
shifted or not. The issues relating to
shifting of Village including their R&R and
socio-economic aspects should be discussed
in the EIA report."
3. The matter was examined in the Ministry and
accordingly, it has been decided that the above
mentioned conditions at para-2 (a-k) may be
included as a condition of Environmental Clearance
letter to mitigate the adverse impact of mining
operations in the case of such habitations/villages.
4. This issues with the approval of Competent
Authority.” (emphasis
supplied)
39. It is therefore not as if transportation of the ore through village
roads is completely prohibited as fairly submitted by the learned
Counsel for the petitioner. Moreover, the aforesaid SOPs/measures
are put in place to mitigate the adverse impact of mining operations in
the case of such habitations/villages. Learned Counsel for the
petitioners fairly submitted that the spirit of the OM dated 29.10.2014
is imbibed in the SOPs issued by the authorities from time to time.
The safeguards imposed by way of SOPs, instructions, Rules and
Regulations before and after filing of the PIL accords with the spirit of
the OM dated 29.10.2014. These measures be strictly implemented.
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40. Learned Counsel for the petitioners made a fervent plea that the
number of trips per hour be reduced and that there should be real
time monitoring about the impact of pollution caused as a result of
such transport. Learned counsel submitted that so far as transport is
concerned, as a result of this Court's intervention, the SOP was
evolved jointly by the DMG and the GSPCB. Learned Counsel
submitted that the timing of ore transportation should be from 9.00
a.m. instead of 8.00 a.m. to 1.00 p.m. as per the SOP condition no.7.
It is submitted that time period of 8.00 a.m. to 9.00 a.m. is the peak
time for people travelling, large number of children going to school,
etc. It is submitted that heavy truck movement is dangerous for
human safety and it would seriously impede and inconvenience the
day to day travel of a large number of people during this period from
8.00 a.m. to 9.00 a.m. It is then submitted that the total number of
trips be restricted to the minimum or less than 20 trucks per hour and
not the upper cap of 40 trucks per hour. It is submitted that no
technical study has been carried out for the capacity of village roads
and the figure proposed in the SOP is an adhoc figure not backed by
data. The constant movement of the trucks would be hazardous for
the locals. It is requested that the total number of trips ought not to
be higher than 20 (load) trips per hour.
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41. So far as monitoring of ore transportation operation by GSPCB
and DMG is concerned, learned Counsel for the petitioners submitted
that the monitoring of ore transportation is proposed to be done under
the new regime i.e. installation of monitoring stations along the ore
transportation route, readings of air quality taken twice a week and
averaged out for 24 hours and results obtained after six days. She
submits that the use of 24-hour ambient air quality monitoring data
for truck transport of ore is wholly inappropriate since the truck
transport does not happen over a 24-hour period as is the case with an
industrial unit working three shifts. Thus, while the actual
transportation period in which air pollution levels are higher are
approximately 8 hours only, these air pollution readings are merged
into the readings captured over the period of 24 hours, which results
in the air pollution levels being averaged out and almost always being
within permissible limits on account of no major activity taking place
in the balance 16 hours (i.e. of non transportation). According to
learned Counsel, the average pollution level readings are thus deemed
to be within the norms (Ambient Air Quality for Residential Areas).
Learned Counsel for the petitioners suggested that, (a) the monitoring
of air pollution needs to be done daily and exclusively within the ore
transportation timings and (b) monitoring should be in the nature of
real time, online monitoring, with the equipment linked with the PCB
servers and Panchayat. Learned Counsel submitted that at present the
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monitoring system neither indicates the true picture of dust pollution
levels during ore transportation nor does it enable the Board to
respond quickly by reducing the transport or shutting it down
temporarily and more focused method is required to achieve proof of
air pollution and most importantly, enable the Board to conduct what
is actually “point source” monitoring. It is further submitted that
while the movement and timing of trucks is already subject to real
time monitoring online by the DMG, the measurement of pollution
levels (in terms of PM10 and PM2.5) is available only six days after the
actual events, due to outdated technology. Learned Counsel
submitted that with the outdated system, the chance of policy
intervention and quick action being taken against excessive pollution
is ruled out.
42. Learned Counsel for the petitioners urged that the need of the
hour is to ensure the updation of pollution monitoring technology to
keep up with scientific advancements. According to her, Real Time
monitoring of air pollution levels will enable the Pollution Control
Board to swiftly take action in the event air pollution levels are
breached on a particular day. The petitioner wants this Court to
recommend to the Board to invest in and use low-cost air quality
monitoring for dust pollution in village settlements and crowded roads
in the forthcoming season itself, commencing September 2024. It is
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submitted that the costs may be recovered from the transporter. It is
submitted that the transportation of 'e-auction ore, which is actually
never ending process will always be an ongoing phenomenon.
Learned Counsel urged that the Board must take a proactive approach
while entering a new phase of mining. It is submitted that trials of the
new, low-cost electronic sensor-based air quality technologies (also
used by Govt. Pollution Control Boards in Rajasthan, Maharashtra
and - Karnataka) should be started during the monsoon itself, so that
the difference between pure air and polluted air will be obvious, if
pollution is generated by this activity. The low-cost systems suggested
(or any other sensible equivalent) would enable the person at the
monitoring station /P.C.B. officer to immediately shut down the
activity or warn the transporter (and connected leaseholder), if the PM
standards (100 for PM10 and 60 for PM 2.5) are breached. This
according to the learned Counsel would be similar to the real time
action that the D.M.G. states it will take if the number of trucks
deployed is in violation of the number permitted, or if stipulated speed
levels are exceeded. The petitioners have provided details about some
of the low cost air quality monitoring device which has been deployed
in various cities. Learned Counsel suggested that 'ATMOS' real time
Air Quality Monitoring Device, developed by the research team at IIT
Kanpur is useful. The features of this device are :
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•
It enables real time monitoring of PM 1, PM 2.5 and
PM 10 levels.
•
The average cost per unit is Rs,30,000/-
•
It has an inbuilt GPRS module and does not require
additional WIFI/network setups.
•
Monitoring data is transmitted real time and is
accessible on an online dashboard.
•
On a full charge, the device can monitor air levels for
a period of 8 hours.
43. Pursuant to the orders passed by this Court, we find that the
DMG and the GSPCB have suggested measures and put SOPs in place
which are mitigating measures. We have no manner of doubt that the
GSPCB and DMG will adopt a proactive approach in embracing
modern technology which will go a long way in striking a just balance
between two competing interests as the time tested principle of
striking this balance is primary invocation of mitigating measures
amidst such activity. We have no manner of doubt that the
suggestions made by the learned Counsel for the petitioners which we
find worth considering will be given due weightage. The GSPCB as an
expert body should make best possible endeavor to ensure that
harmony is upheld and hurdles for the citizens are minimised by
resorting to active mitigating measures. The suggestions of the
learned Counsel for the petitioners be given serious consideration by
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the authorities. It is the primary duty of the expert agencies to ensure
a right balance and we expect that a proactive approach be adopted in
the best interest of the villagers.
44. The DMG and GSPCB to ensure that the measures aforesaid
are strictly monitored and implemented in its true letter and spirit.
Any violation be dealt with firmly.
45. We thus find from the materials that the expert bodies like
GSPCB and the DMG have issued the SOPs and imposed necessary
safeguards in the transportation of the 'e-auction ore'. It is not
possible for us to substitute our opinion for that of the expert body like
the GSPCB and DMG. The recommendations and decision of the
DMG and GSPCB cannot be undermined in a light manner and due
deference must be accorded to expert agencies when the decisions do
not attract the taint of legal unjustness/infirmity. We, however, feel
the need to record that the mitigating measures must be strictly
observed by the project proponent/transport operators in letter and
spirit during the transportation of the ore. They shall ensure regular
monitoring. Any infraction be dealt with seriously. The suggestions
made by the petitioners be given due weightage by the GSPCB and
DMG. The GSPCB and the DMG should make every possible
endeavour to strike a just balance in the conflict of competing interests
by resorting to modern techniques amidst the transportation activity.
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46. We find it necessary to direct that a proper study be carried out
by preparing a report specific to each route permitted by DMG and
GSPCB for transportation of ore through the villages on the basis of
carrying capacity of each road. The DMG and GSPCB undoubtedly
will have to consider the length of the route, number of
houses/hamlets, situated on the route with the study of the population
enroute, the details of schools or other such activities that may exist
along the route apart from other factors while taking a decision on
granting transport permission based on the carrying capacity set down
for each route. This will accord with the spirit of the OM issued by the
Ministry of Environment. The DMG and GSPCB shall, as far as
possible, monitor the trucks on each route on Real Time basis, install
CCTV cameras connected to DVR devices at Panchayat Ghars and/or
public schools and/or the office of the GSPCB and DMG to enable the
DMG/GSPCB and/or Panchayat officials or other designated officials
to monitor and observe the movement of trucks carrying such ore
along the route.
47. The DMG and GSPCB shall as far as possible install pollution
monitoring devices of the nature that may upload information/data to
the server of the DMG and GSPCB in Real Time to enable the
Departments to monitor the air quality along the designated routes in
Real Time and to arrest the movement of trucks, if required to bring
air pollution to within permissible norms.
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48. We reserve the liberty of the petitioners/any of the affected per-
son or in public interest to approach this Court in case of difficulty in
the implementation of the aforesaid measures, breach of any condi-
tions or for any other genuine cause concerning the transport activity
at any stage when necessary.
49. The PIL Writ Petition is disposed of in the above terms. No
order as to costs.
VALMIKI MENEZES, J. M. S. KARNIK, J.
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