Rejoinder on Behalf of the Petitioners

IN THE SUPREME COURT OF INDIA (CIVIL ORIGINAL JURISDICTION)

WRIT PETITION (CIVIL) NO. 711 OF 2015 AND SPECIAL LEAVE PETITION (CIVIL) NO. 32138 OF 2015

PUBLIC INTEREST LITIGATION

IN THE MATTER OF : GOA FOUNDATION …..PETITIONER V. STATE OF GOA & ORS. …..RESPONDENTS

COMMON REJOINDER ON BEHALF OF THE PETITIONER IN RESPONSE TO THE COUNTER AFFIDAFITS FILED BY STATE OF GOA AND OTHER RESPONDENTS IN THE ABOVE WRIT PETITION & SLP

I, Dr. Claude Alvares, S/o Peter Alvares, aged about 67 years, Secretary of the Petitioner Society, having its office at 7, Le Brag Chambers, Mapusa, Goa, do hereby solemnly affirm and state on oath as under:

1. The present common rejoinder is being filed in rebuttal of the averments in the counter affidavits filed by the Respondent No. 1 (State of Goa) and mining respondents in the above writ petition as well as the captioned special leave petition. All statements from the said Affidavits should be treated as denied, save as are categorically admitted herein under. 2. That the Petitioners have gone through the Counter Affidavits filed by the State of Goa dated 1.12.2015; and others, in the above Writ Petition. The counter affidavits filed by bulk of the Respondents (with exception of the State of Goa) are largely repetitive or carry the same copied paragraphs except where these set out different historical facts in the case of each mining lease. The Petitioners crave leave in the circumstances not to file a para-wise Rejoinder to the Counter affidavits but to focus, for sake of brevity, on the major issues set out in the responses in relation to the principal averments made in the Writ Petition. 3. The petitioner craves leave to rely upon this affidavit for dealing also with the issues raised in counter to the averments made in the Special Leave Petition filed by the Goa Foundation. The State of Goa has not filed any counter affidavit in the Special Leave Petition filed by the Goa Foundation. However, as the SLP proceedings are a continuation of the proceedings before the High Court, the Counter Affidavit dated 25.06.2014, filed by the State of Goa is being taken as the stand taken by the State of Goa. 4. The writ petition challenges in public interest the second renewals, under 8(3) of the un-amended MMDR Act, 1957, of 88 mining leases for mining iron ore in the State of Goa pursuant to a judgement of this Hon’ble Court dated 21.4.2014. There are three grounds taken in the present writ petition: a) First, the renewals offend against the findings and directions given by this Hon'ble Court in its judgement dated 21.4.2014; in Goa Foundation v/s State of Goa and ors (2014) 6 SCC 590. b) Two, the renewals violate specific provisions of the MMDR Act, 1957. c) Three, the renewals conflict with well laid down constitutional principles that must govern the grant of natural resources owned by the people of a state and managed with care by the State as custodian (in public trust).

The first ground: 5. In respect of the first ground taken by the petitioner, the Respondents, most notably the State of Goa, have attempted rebuttal of the contentions on the following grounds: 1) The second renewal orders of deemed mining leases in Goa have been issued in conformity with the order of this Hon'ble Court dated 21.4.2014 (para 20). 2) The powers of the State to grant or refuse renewals of a mining lease under sub-section 3 of Section 8 was not in any way restricted or impeded by the judgement and order of this Court (para 45). 3) There is no legal impediment whatsoever in the State Government granting a renewal of the mining lease, in accordance with and in furtherance to the Policy framed pursuant to the judgement and order of this Hon'ble Court. So long as policy was approved and notified, as directed in Goa Foundation, the approvals were proper (para 41). 4) This power under Section 8(3) to renew leases was always available to the State Government either in the year 2007, or in the year 2014 or upto 12th January 2015 when it granted second renewals (para 47). 5) Findings of the Court were in the context of administrative laxity which resulted in pending applications for renewal not being considered within the time, resulting in mining beyond the time which could have been permitted for a period “slightly beyond” but not five years (para 48). 6) Nowhere in the entire judgement has this Hon'ble Court stated anywhere that renewals under Section 8(3) of the MMDR Act, 1957 is not available in cases of leases in Goa or that the Government of Goa was in anyway denuded from exercising its powers under the Act. The judgement in fact holds to the contrary (para 68). 7) The reliance placed by the petitioner on the word “fresh leases” is a misnomer in as much as every renewal is a fresh grant (para 69). 8) The Supreme Court itself directed consideration of 8(3) renewals for Odisha, referring to its judgement in Goa Foundation. Para 27 of the judgement dated 21.4.014 is quoted in the affidavit to reinforce this argument of the Goa government. 9) The judgement dated 21.4.2014 in fact referred to the Goa Mineral Policy 2013 which explicitly declared that the state would decide 8(3) renewal applications pending with the government within 6 months. 10) It is always open in law for the State Government to relate back the renewal to the date of expiry of the lease (para 110). 11) The Bombay High Court vide its judgement dated 13.8.2014 also directed the Goa government to renew leases under Section 8(3) after considering the judgement passed by this Hon'ble Court in Goa Foundation. The High Court at Goa has interpreted the Order of this Hon'ble Court vis-a-vis the Goa Mineral Policy, 2013, etc. “Petitioner has misconstrued the opposition of the State Government to High Court hearing the matter on principle as opposition to renewal.” (para 65) 12) That the opposition of the State Government to entertaining the petitions that led to the impugned judgement dated 13.8.2014 was because the State was still formulating a policy on grant of mining leases as required by the judgment dated 21.4.2014 and only after these actions were completed, could the matter come up for judicial review and therefore no reliefs could be granted in those petitions. 13) That despite the High Court’s directions to renew the leases, the Goa government continued and finalised its policy and notified the draft on 1.10.2014 on the website of the Department of Mines and Geology and only after the policy was finally approved on 4.11.2014 and published, were the leases taken up for review. 14) The counter affidavit of the state governments also lays out the various issues considered by the Supreme Court vis a vis the “Justice M.B. Shah Commission of Inquiry into Illegal Mining in Goa” findings, going to the extent of saying it found all the allegations practically baseless or of little material significance. In this context it examines violations of Rules 38, 37 (of MCR), encroachment, condonation of delay, mining activity within 10 km of wildlife sanctuary boundaries, the legality of dumping beyond the lease boundary, and production in excess of norms laid down in the environment clearance, all issues examined by the judgement. It concludes that none of these alleged charges need to have come in the way of granting second renewal, especially when the lease orders expressly linked the survival of the said leases to the results of the investigations into these issues which were on-going. In other words, the lease orders in several cases are conditional and can be reviewed if and when the occasion arises. 6. Petitioner submits that these averments made in response to the grounds taken in the petition are inadequate and fail, for the following reasons: 1) The writ petition No.435/2012 was filed, as the judgement itself records at para 7, for termination of the leases operating in Goa on the grounds that the leases had expired and could not be renewed, in addition to violation of environmental norms. The writ petition was allowed. This Hon’ble Court explicitly came to a finding on this plea which it used as a header for para 15, and which is concluded by para 28 of the said judgement. The judgement in relation to the validity of operating mining leases in Goa is law. It cannot be undone by executive actions. 2) In view of this finding on expiry of validity in terms of the Goa Abolition Act of 1987 and the MMDR Act, 1957, the Court set in motion irreversible actions of directing confiscation of all stocks of ore excavated and left on leases and jetties, their e- auction and deposit of all monies in the public exchequer and the Goa Iron Ore Permanent Fund. 3) It reiterated this finding and action in its subsequent judgement dated 14 October, 2014 in the Bandekar matter, full two months after the High Court's judgement dated 13.8.2014. Copy of the said judgement is at Annexure P-1 to this affidavit (Pages ). 4) The only text of the judgement the State of Goa claims allows renewal is in para 27. One sentence therein has been extracted from the para, claiming it allows renewal under 8(3). However, the para is nothing more than elucidation of the law of 8(3) provided in para 26. The relevant finding deciding the expiry of the leases is to be found in para 28. 5) In light of the above, the import of what this Hon’ble Court declares in subsequent para 82 becomes clear. It concludes this para with the statement: “The order dated 10.9.2012 of the Government of Goa and the Order dated 14.9.2012 of MoEF will have to continue till decisions are taken by the State Government to grant fresh leases and decisions are taken by MoEF to grant fresh environmental clearances for mining projects.” In other words, the Court was fully cognisant that the State of Goa and MOEF needed to have a clean slate and begin afresh in view of the various illegalities and violations committed by the lease holders in Goa and which had been painstakingly documented by the Justice Shah Commission of Inquiry into Illegal Mining in Goa of which there are now 3 Reports, only 2 of which were before this Hon'ble Court at the time of passing judgement. This statement, together with the order on confiscation, could only have been made if the Court was conscious that its findings on expiry were irreversible in the case of Goa mines and the facts set out in the writ petition and reports of the Justice Shah Commission and CEC. A table listing the violations highlighted by the Justice Shah Commission Reports associated with the 88 leaseholders is herewith annexed to this affidavit as Annexure P-2 ( ). 6) Renewal under 8(3) was therefore not an option considering the facts and circumstances of the findings and directions provided in the above judgement, which required other actions to be taken prior to re-start of mining. It is instructive to recall here that even though the Court vacated its stay on mining operations and transport, it continued the stay through upholding the suspension orders of the Goa Government and the MOEF, to ensure that till fresh leases were granted together with fresh environment clearances, no mining by present respondents would continue. 7) The Court issued other directions which it required to be carried out and concluded before fresh leases were even granted: a) Formulate a policy for the manner in which it would grant fresh leases in the State. This policy was to be formulated and approved prior to grant of leases and would govern the grant of leases. The State claims in its affidavit that it formulated a policy in September 2014, then got it uploaded in draft form on the website of the Department. It states on oath: “On the said date, i.e., 01.10.2014 and 04.11.2014, the said Policy was published and uploaded on the website of the Directorate of Mines & Geology, Government of Goa.” This statement is false. The Cabinet approval of the policy was not uploaded to the website on or after 4.11.2014. It was notified in the official gazette only on 20.1.2015, when the policy had already become infructuous. If this is the reality, then the policy was not notified prior to approval of second renewal of the mining leases in question. Therefore, since no notification was done, the policy was not in force. Hence the leases could not have been renewed. In his response to the vigilance complaint filed against several persons responsible for approval of the second renewal of these leases, the Director of Mines & Geology now states that the policy dated 4.11.2015 is to be withdrawn (para 34, p/139 of counter filed by the state government). In parts of the affidavit, the state government attempts to claim that the renewals were in line with the 2013 Goa Mineral Policy which was placed before this Hon’ble Court when it was hearing Writ Petition No.435/2012. However, in several parts of the counter it has filed, the state clearly states that the leases were approved in line with the 2014 policy approved on 1.10.2014 and 4.11.2014. b) Investigation by the State Government into the violations reported by the Justice Shah Committee, based on a solemn undertaking provided by the State Government that it would do so and recorded in the judgement; c) Investigations and actions under rules 37 and 38 of the MCR Rules, widespread in the State of Goa and documented in the reports of the CEC, Shah Commission reports. d) Notification of the buffer zone of 1 km around the wildlife sanctuaries. (Many of the 88 mining leases renewed are located in the 1 km buffer zone for which this Hon’ble Court has issued direction that notifications should be issued in the period of six months.) e) Submit a scheme for the Permanent Fund in the interest of intergenerational equity. The State has formulated a scheme, which has little or no relation to common understanding of a Permanent Fund. 8. In view of what has been stated and reiterated above, the arguments of the State Government and respondents do not hold water and have to be rejected. However, there are other grounds for coming to the direct conclusion that the argument permitting renewal under 8(3) was in fact rejected by this Hon'ble Court. 9. The pleadings on record as mentioned in the impugned judgment of this Hon’ble Court point out that the lessees had contended that their applications for renewal were already filed in 2006, i.e., before 21.11.2007, and therefore, the period beyond 22.11.2007 should be treated as renewal under Section 8 (3) of the MMDR Act, 1957. The said argument on behalf of the lessees was not accepted by this Hon’ble Court and it was clearly held that Sub Rule (6) of Rule 24A cannot apply to a renewal under Section 8 (3), as renewal under this provision cannot be made unless there is an express order from the State Government recording reasons for renewal in the interest of mineral development. In view of the finding given by this Hon’ble Court that the period beyond 22.11.2007 cannot be treated as either renewal or extension under Section 8 (3) of the MMDR Act, the argument of the lessees claiming benefit of Section 8 (3) of the MMDR Act cannot be raised again. The High Court was, therefore, in serious error in entertaining the Writ Petitions of the lessees and giving the directions that it did in its judgment dated 13.08.2014. In fact, faced with the situation that the period from 2007 onwards can neither be treated as a extension / renewal under Section 8 (2) or even under Section 8 (3), this Hon’ble Court directed that :- “(i) 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 10.09.2012 of the Government of Goa and the impugned order dated 14.09.2012 of the MoEF, Government of India are not liable to be quashed…………………………….. 10. If renewal option were no longer available, the only option for the state government – after the judgement – was, therefore, to hold a public auction, since the government was under statutory obligation to provide a level playing field and also to generate maximum revenues, if it continued to want mineral development under 8(3). 11. The Writ Petitions filed by the lessees before the High Court after the judgment of this Hon’ble Court in Goa Foundation v. Union of India were not at all maintainable. The High Court in Para 9 has wrongly quoted the findings of this Hon’ble Court as follows:- “ In our considered opinion the judgment of the Supreme Court clearly re-affirms of the obligation of the State Government to consider all the applications for renewal under Section 8 (3) ……..” (emphasis supplied) 12. Nowhere in the judgment of this Hon’ble Court, obligation of the State Government, as has been held by the High Court, has it been “clearly re-affirmed” that the applications of the lessees have to be considered for renewal under Section 8 (3) of the MMDR Act. 1) A clear reading of the judgment of this Hon’ble Court points out that the lessees argument that the period from 2007 onwards should be considered under Section 8 (3) was not accepted by pointing out that there are necessary conditionalities to be fulfilled before invoking Section 8 (3) of the MMDR Act. This basic fallacy in the findings given by the Hon’ble High Court strikes at the very root of the consideration of the application of the lessees under Section 8 (3). The High Court proceeded under a wrong assumption that this Hon’ble Court had clearly re-affirmed the obligation of the State Government to consider these applications under Section 8 (3) of the Act. 2) There was no pleading by the State Government before this Hon’ble Court that they even intended to consider these applications for renewal under Section 8 (3). 3) The Hon’ble High Court has not taken into consideration the stand taken by the State Government in their counter affidavit dated 25.05.2014. The reply filed by the State Government has again been not correctly reproduced or summarized by the High Court in para 12 of its judgement. 4) In view of the above clear position which was taken by the State Government, there was no occasion for the High Court to consider invoking Section 8 (3) or giving a direction to consider the renewal application filed in 2006 to the State Government under Section 8(3). 13. This brings us to the consideration of the Orissa interim order dated 16.5.2014 in WP No.114/2014. It is amazing that the State of Goa – which demanded before the High Court that the petitioners therein should approach the Supreme Court to get a similar order in their case – has now filed an affidavit which says that they have relied upon the Orissa interim order as a further justification that they retain the power to renew a lease under 8(3) in the State of Goa, post the Supreme Court judgement dated 21.4.2014. 14. However, this is not the only U-turn the Government has done. In fact, the affidavit of the Goa government is now on record in the SLP filed by this petitioner and this Hon'ble Court is now faced with two affidavits filed by the same government on the same issue, stating opposite positions. This is not permissible by any law of pleadings. This Hon'ble Court is being asked to choose between two rival set of pleadings from the same party, each diametrically opposed to the other. 15. The directions issued in the Orissa order dated 16.5.2014 are part of an interim order. The writ petition is still to be finally heard. Nevertheless, even on facts, the Orissa order of the same Supreme Court bench, is different in several respects from the Goa case, which is why this Hon'ble Court issued interim directions to the Odisha government relating to consideration of a few pending applications under 8(3). These facts are noted below. They are taken from both the interim order dated 16.4.2014 and the CEC report based on which the interim order is based: 1) First, by the Orissa interim order, the operation of any lease which was without an environment or forest clearance, etc., was stayed outright. These leases number 102 in number, all non- operational - CEC Annexure R-2. 2) The operation of any lease which was determined, cancelled, etc., was also forthwith stayed. These were 29 in number and they were all non-operational - CEC annexure R-3. 3) Balance, there were 56 leases operating, and by extension, they had, as per the CEC report, all required approvals . Of the 56, 16 had proper lease deeds. Of the balance 40, 14 were under first renewal. This left 26 leases under second and more renewals - CEC annexure R-4, R-5 & R-6. 4) In para 7, the SC says that the advocates pleaded that the lessees had applied for renewal within the stipulated time. (This is also the argument used by respondents in the Goa case. The argument was rejected by the Supreme Court in the Goa case.) In other words, this Hon'ble Court rejected the proposal that these could be considered as 8(3) approvals, since the procedure had not been followed. Once the Supreme Court has rejected this pleading, where is there a question of considering a fresh application under Section 8(3)? The High Court of Bombay at Goa, in the impugned judgement, however, came to the opposite conclusion. The impugned order in fact states: “In our considered opinion the judgement of the Supreme Court clearly re-affirms the obligation of the State Government to consider all the applications for renewal under Section 8(3).” Nowhere in the entire judgement has this Hon'ble Court come to such a conclusion or finding. Obviously, the High Court, with due respect, was wholly wrong. 5) In paras 7 & 8, the SC makes it clear that the State has the authority to decide on renewal applications u/s 8(3). It is stating this after passing judgement in the Goa case, where it has explicitly precluded such renewal of leases of affected leaseholders who had made applications and directed grant of fresh leases and fresh environment clearances. 6) Most importantly, nowhere has the SC said that Odisha needs to renew. It has only stated that the state needs to take a view on the renewal, in the facts of mining in the Orissa scenario. Conscious of the judgement in Goa Foundation, the Odisha lease renewals operate from the date of the lease deed signed and not from the date of expiry of the lease. This has been explicitly disregarded in the renewal of the 88 mining leases in Goa.

The second ground: 16. In relation to the second ground – that the approvals violate specific provisions of the MMDR Act, 1957 – the following arguments are set out in the affidavit of the State of Goa and others: 1) The affidavit of the State Government states that pursuant to a change in Rule 24A (3) proviso, it is “mandatory” on the part of the Government to get expert consultation from the Central Government (IBM) prior to grant of a renewal. In the same paragraphs, and in other paragraphs, the affidavit also claims that if the IBM does not reply in the stipulated period of three months, there is deemed approval. It goes on to claim that even if there is a negative report after 3 months or a negative report within 3 months, this still does not come in the way of the State granting a renewal nonetheless. The petitioner therefore is unable to establish from the affidavit whether the State can disregard effective consultation with the IBM even when the proviso explicitly states the expert opinion is in connection with “mineral development” and especially even when the State of Goa, at least, does not have the necessary expertise itself. 2) The state claims it has sent the required communication in all but a few cases in time and has annexed a table indicating the dates and year of the communications despatched and the replies received. It has also set out very fairly the dates on which the IBM has replied. In all cases (except a handful), the letters to the IBM are after the period of expiry of the lease. Obviously, the recommendations from IBM are beyond expiry period as well. In the opinion of the State, it is not bound by such advice in such circumstances. Hence the State is in compliance of Rule 24A3. One of the respondents, Sesa Sterlite, gifted with its two sister companies with the maximum number of leases, in fact asserts that once an IBM recommendation is in favour of lease renewal, there is a statutory right to renew the lease. 3) The state affidavit also claims that in all 88 cases, there is an approved Mining Plan valid for 20 years. 17. However, the above averments are rebutted by the petitioner on the following grounds: 1) The IBM expert consultation is mandatory. The state cannot adopt a “care-a-damn” approach, as public resources are at stake and careful application of mind is essential for reasonable decisions. 2) However, it may be noted that in any case, all the IBM “clearances” issued were issued in the period when there were no subsisting leases, all of them having expired on 22.11.2007. 3) The communications from the IBM under Rule 24A(3) disclosed information which indicated existing statutory deficiencies. Thus, in bulk of the cases it was indicated by IBM that there was no formal approval of the first renewal. Copies of some of these IBM approvals are at Annexure P-3 ( ). In fact, one of the reasons why the Department had been unable to renew mining leases despite having applications before them filed in time was due to this lacunae. If the first renewal had not been granted on the date the lease period expired, where was the legal possibility of approving a second renewal? The mining activity carried out between 1987 to 2007 was carried out under extension and not renewal, except in a few rare cases. The entire file notings dealing with this issue was submitted by the Department of Mines & Geology to the CEC in 2012. Petitioner craves leave to produce these, if required in the proceedings. 4) This brings us to the issue of the mining plan. The state affidavit claims that there were subsisting mining plans approved by IBM and as these were approved in the case of these 88 leases, the second renewal was granted for that reason. This is an erroneous argument. First, a mining plan can only be submitted after a valid lease has come into the possession of any miner or person. Mining plans cannot be approved in advance of having a valid lease. 5) Second, the IBM mining plan approvals referred to by the state government in its affidavit stand automatically in violation of the 21.4.2014 judgement on two grounds: a) The judgement held that the dumping activities outside the leases were illegal. All the mining plans referred to by the state in its affidavit were based on permitting mining activity by dumping of subgrade or waste outside the lease. Therefore, they needed to be revised and modified accordingly, to take the Court’s findings into consideration. The lease holder would have to find non-mineralised area within the lease and IBM would have to ensure that the mining plan did not allow for dumping on mineralised area. If it did, this would be in violation of the rules. b) The mining plans allowed mining production at approved capacity levels. This Hon’ble Court however required a cap to be imposed and therefore a reduction of production; to fall within the cap, production in most cases would have to be reduced to less than half the levels approved earlier. This most important aspect would have to be reflected in and endorsed by the approved mining plan. Obviously, this has not be done.

Third ground:

18. The petitioner has set out grounds why the renewals are unconstitutional, and do not meet the requirements of Art.14 or 39 (c). They violate the norms laid down by this Hon’ble Court in its judgements in the 2G scam, the Presidential Reference and the judgement on coal allotments and take the clock backward, so to say. This aspect of petitioner's challenge to the lease renewal orders has not been seriously rebutted by the State of Goa, which takes the view that whether the leases out to have been granted through auction or otherwise has been settled in the aforesaid judgement in Goa Foundation. However, this is a wrong reading of the said judgement. The following arguments are set out in paras 133 and 134 of the counter affidavit of the State government: 1) Since the leases are renewed in accordance with the MMDR Act, estimated loss calculated by the petitioner is without any base as such and thus does not deserve any merit. 2) The calculations of loss and undue favours to mining companies provided by the petitioner in paras 37 to 40 of the petition are devoid of merit and without any knowledge of the basics of mining. 19. The first objection is an Ad Hominem Fallacy – attacking the person rather than the argument. Further, the Petitioner has proved its expertise in the field – the Hon'ble Court's judgment in 435 of 2012 is adequate evidence. Further, two papers authored by a member of Goa Foundation have been published on these issues in a peer reviewed journal, Economic & Political Weekly. The first paper, “Implementing Intergenerational Equity in Goa” (EPW Vol XLIX on 20.12.2014) uses World Bank data and estimates that Goa lost over 99% of the value of its minerals over a five year period (2004-05 – 2008-09). The second paper, “Catastrophic Failure of Public Trust in Mining: A Case Study of Goa” (EPW Vol L on 19.09.2015) examines iron ore mining by Sesa Goa and National Mineral Development Corporation (NMDC). Petitioner craves leave to produce and rely on these studies if and when required in the proceedings. Losses over 90% over long periods is prevalent. Similar trends are also seen in fossil fuel extraction. It is apparent that the then existing system of lease allocations and lease renewals were not meeting constitutional requirements of socialism, Article 14, 39 (b) and 39(c).

20. Second, the Petitioner has estimated that the loss of value to the people of Goa is conservatively as follows: 1) Illegal mining: Rs. 4.46 lakhs per capita (Rs. 65,058 crores) on account of mineral exported; Rs. 3.68 lakhs per capita (Rs. 53,603 crores) on account of interest upto Mar 31, 2014, adding up to Rs. 8.14 lakhs per capita (Rs. 118,663 crores). 2) Loss from fresh mining: Rs. 5.47 lakhs per capita (Rs. 79,836 crores) at an extraction rate of 43.973 MT / year or Rs. 2.49 lakhs per capita (Rs. 36,311 crores) at an extraction cap of 20 MT / year 3) Therefore, the total loss is Rs. 13.61 lakhs per capita at 43.973 MT / year, or Rs. 10.63 lakhs per capita at 20 MMT / year.

21. If we assume that an auction generates an additional 35% ad valorem, on the lines of what is proposed in the case of Karnataka "C" category mines, the additional amount accruing to the state would be Rs. 3.94 lakhs per capita (Rs.57,460 crores) at an extraction rate of 43.973 MT / year or Rs. 1.79 lakhs per capita (Rs. 26,134 crores) at a 20 MT extraction cap. It is clear that these amounts are not adequate to cover the entire loss.

22. There are two principles that need to be followed while alienating natural resources: first, there should not be a loss of value, and second, the process of alienation should maximise value. While a properly structured auction may maximise value, it may not ensure avoidance of loss. It is in this context that the Petitioner has specifically recommended in its proposal dated 14.05.2014 that the State consider setting up a Goenchi Mati Mineral Corporation (Goenchi Mati means Goan earth in Konkani).

23. Relevant judicial opinion on these aspects are provided below: a. The concurring opinion in the Presidential Reference (supra) held: “no part of the natural resource can be dissipated as a matter of largess, charity, donation or endowment, for private exploitation. Each bit of natural resource expended must bring back a reciprocal consideration. The consideration may be in the nature of earning revenue or may be to “best sub serve the common good”. It may well be the amalgam of the two. There cannot be a dissipation of material resources free of cost or at a consideration lower than their actual worth. One set of citizens cannot prosper at the cost of another set of citizens, for that would not be fair or reasonable.” b. It has been held that policy decisions of the Government can be scrutinised if they fall afoul of Article 14. In particular, policies may fall afoul of Article 14 if they are deemed to be “arbitrary”. In the Presidential Reference (supra), this Hon’ble Court held:

“105. From a scrutiny of the trend of decisions it is clearly perceivable that the action of the State, whether it relates to distribution of largesse, grant of contracts or allotment of land, is to be tested on the touchstone of Article 14 of the Constitution. A law may not be struck down for being arbitrary without the pointing out of a constitutional infirmity as McDowell’s case (supra) has said. Therefore, a State action has to be tested for constitutional infirmities qua Article 14 of the Constitution. The action has to be fair, reasonable, non- discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment. It should conform to the norms which are rational, informed with reasons and guided by public interest, etc. All these principles are inherent in the fundamental conception of Article 14. This is the mandate of Article 14 of the Constitution of India.”

24. Three issues remain for rebuttal, which are not intimately connected with the principal challenges in the writ petition but have been raised in the counter affidavit of the State Government. The first deals with the State Government’s concerns about the bona fides of the petitioner organisation. The following needs to be stated: a) The Director of the Goa Foundation is still a member of the Supreme Court’s Monitoring Committee and was requested even as late as last year by this Hon'ble Court to assist Customs at Nhava Sheva Port, Navi Mumbai, in destruction of waste oil stocks impounded by Customs in violation of the Hazardous Waste Rules. He has served as a member of the Supreme Court Monitoring Committee from 2003, though the committee became largely dysfunctional after 2007 for reasons not necessary to discuss here. Prior to that, the Director was a member of the Supreme Court High Level Committee on Hazardous Wastes and worked with Prof. MGK Menon on that Committee for three years, from 1997-2000. In October this year, the Director has been appointed by the Gujarat High Court as Commissioner to oversee alleged damage to mangroves and their rehabilitation by Adani Port. The Director serves on the Monitoring Committee of the Goa Government on Municipal Wastes. b) That the Goa Foundation has filed applications before the NGT Pune and Delhi in respect of construction of two bridges and a MSW plant in Goa is correct. These are the brief facts of each: i. Tiracol Bridge is being constructed with public money for aid of a golf course, in CRZ I area, without environment studies and without forest clearance. The construction of the bridge could irreversibly damage the river and convert it into a lagoon for parts of the year. Construction cost is Rs.77 crores, subsidy for the golf course. State of Goa is bankrupt but constructing the bridge with loan from NABARD. NGT has directed study of the environmental impact of the bridge from National Institute of Ocean Technology at cost of Rs.40 lakhs, prior to further work on the bridge. Petitioner is entitled by the NGT Act, 2010, to approach the NGT, for attendant reliefs. Petitioner has filed the petition under precautionary principle. ii. Mandovi Bridge is third bridge across Mandovi river which already has two bridges within 50 metres of each other. Cost of bridge is Rs.560 crores. EIA was conducted by the contractor one year after construction commenced. There is no environment clearance. Bridge piers may damage the river, which is Goa's main river. Money is taken on loan from NABARD. NGT has stayed construction in the river bed as even the incompetent EIA produced deals only with the land and not the river which falls within CRZ area. While approving the bridge, the authorities did not know the construction would impact mangroves in CRZ I area. iii. Municipal Solid Waste Plant contract is given as a largesse to a BJP contractor, who is putting up a plant at a location expressly forbidden by the High Court in view of damage to existing water body. While other MSW plants are contracted at rates ranging from 500 to 800 per tonne, the plant challenged is given out at a cost of Rs.9800 per tonne. Plant commenced construction without environment clearance and without public hearing as mandated by law. The matter is before the NGT now for 9 months, so it cannot be frivolous. The delay in disposing of the matter is because the NGT has found the responses of the Goa government until now extremely frivolous and scattered. iv. The petitioner is criticised for allegedly destabilising the economy and its activity is declared anti-national. On the contrary, because of writ petition No.435/2012, and this Hon’ble Court’s directions, entire stock of 15 million tonnes and more of iron ore lying at jetties and leases in Goa has been confiscated and set for e-auction by this Court. The money is to be given to the Goa Government and to the Goa Permanent Fund. As per the Economic Survey 2014-15 of the Goa Government, a sum of Rs.750 crores has been already deposited with the Government by e-auction of a mere 5 million of the 15 million tonnes. Some Rs.50 crores have been set aside for the Permanent Fund for future generations. Thus, petitioner's efforts have been productive not only for the present economy but for the future one as well. In contrast the petitioner has not been compensated for the considerable work done by it for successfully prosecuting the petition in public interest in this Hon’ble Court. This Hon'ble Court may judge whether in these circumstances, the work done by the Goa Foundation can be assailed in the terms done by the Goa Government which, by its actions of complicity, has surrendered Rs.198,499 crores to the mining lobbies in the State. Approaching the NGT or this Hon’ble Court in public interest to cure the degenerate acts of politicians and powerful miners and developers cannot be termed criminal or anti-national activity by any yardstick of the imagination. Petitioners solicit small donations from the public because costs of prosecuting maters in courts can be very high, even though the petitioner does not pay any legal fees to its lawyers since these services are provided pro bono. In view of expressed economic distress liable to be borne by petitioner, this Hon’ble Court directed that the copies of the petitions and SLPs presently before this bench would be made available by the government instead to the 88 leaseholders, thus saving the petitioners considerable expense as this is a public matter. c) The allegation that all 88 lease holders have not been made party respondents is incorrect. All parties have been served pursuant to the directions of this Hon’ble Court dated 17.11.2015.

DEPONENT VERIFICATION: I, the above named Deponent, do hereby verify that the contents of the above affidavit are true and correct to my knowledge, that no part of it is false and that nothing material has been concealed therefrom. Verified at New Delhi on this 7th day of December, 2015.

DEPONENT