Herald: The state of Goa had cautioned the High Court that it was still in the process of complying with the directions of the Supreme Court after which it could consider the applications of the interested parties. The counter filed by the state Government squarely informed the High Court that “the prayers in your (the mining companies) petitions go completely contrary to” the Supreme Court judgment. The Goa Foundation, in its Special Leave Petition has stated that “the High Court in an unusual instance of judicial overreach” directed the Goa Government to execute the lease deeds of those who have paid stamp duty and the order “disembodies” the directions of the Supreme Court “and introduces chaos in the proposed scheme of legal and environmentally appropriate mining in Goa. Your comments
Ambar Timblo: I completely disagree with the statement of Goa Foundation. And it is unfortunate yet not totally surprising that Goa Foundation would accuse a court of over reach and perversity. As they seem to be an organisation that only compliments judicial authority when it suits their agenda, and pass accusations of unsavoury nature on the judiciary when they do not like what the judiciary has to say.
Herald: Couldn’t the 27 lessees have waited till the governments new template (called a mineral policy) which you insist the government already has, was ready. Isn’t it better to start afresh rather than carry on mining on leases whose basic legality has been quashed by the SC?
ABT: a) These leases had express orders on file, signed by the department and government, only after which the demand for stamp duty was made.
b) These decisions were confirmed and sworn on affidavit by the government before the Supreme Court in the Goa Foundation matter. The Learned Advocate General affirmed the same in his own written submissions.
C) Goa Foundation through its counsel Prashant Bhushan asked the Supreme Court to cancel these renewals. The Supreme Court refused.
d) The Supreme Court on the matter of illegality has through an interpretation of the Mineral Concession Rules, that 2nd and onward renewals, cannot work on a deemed extension. That is all. That is a judgment for all India not for leases only of Goa. Till the judgment of the Supreme Court in this matter, all governments past and present, all courts past and present and all companies past and present followed the rules and the Act interpreting that deemed extension applied. Now since the SC judgement of Goa, the rule is to be read differently. That is why the same court clarified it 15 days later in the Orissa judgment that if the government makes a decision under Section 8(3) of the MMRDA then there is no problem. This is what the state government of Goa had already done. In fact among all other mines in the country Goan leases have operated under deemed extension for the least period of time.
e) The 27 cases have decisions under Section 8(3), stamp paid under the stamp act, much before the SC judgement. The HC was moved so as to direct the Government of Goa to act as per lawn, and in continuance of the SC order.
Herald: Since transgressions of Rule 37 and 38 of the MCR rules have been reported, wouldn’t it have been prudent if each of these issues are sorted out rather than start mining and again be challenged judicially
ABT: Rule 37 and 38 are operative and provisions under The MCR. They can be looked into at any time. The SC court order reads as follows: ‘The State to look into case of leases who violate 37 and 38’. This itself reinforces the power to the state. The state has initiated such process. But these are meant to be ongoing investigations, as will be other possible alleged concerns/allegations. If in the course of these investigation, after due process of law and enquiry any lease is in violation, than a determination will be made. A lease renewal does not in any way absolve any person of a violation, once proved. As of now these are generic accusation. In fact when Rule 37 and 38 were attempted to be argued by Goa Foundation in the SC, the court directed them, that these are not issues of illegality before the SC, the state can act on them whenever they feel they have arisen, and refused to hear any more submissions on these points by either Goa Foundation or the CEC.
Herald: a) The Goa Foundation has been insisting on taking the auction route. While the mining sector has all along questioned the local standi, the role and the motives of the Goa Foundation, what is your fundamental objection to taking the auction route?
b) Will you agree to a scheme where all leases are cancelled totally and four mining blocks earmarked which will be auctioned and all players get a chance to bid for those blocks?
ABT: a) The suggestion of auction has been rejected by the Supreme Court in the Goan judgement itself.
Nevertheless these are not leases that have not been invested into. These assets have been developed through investment and technology over time and effort, through market cycles up and down. The risks through out this period have been taken by the mining companies. Leases in India have needed to be renewed over time to ensure scientific evolution of the deposit. To suggest auctioning an asset, post the investment and risk having been taken by someone already, is absurd and violative of number of rights, and regressive in nature.
GF cannot make up their mind, one day it is auction, the next it is cooperative societies, the next it is government corporations. I believe that the flip flopping stems from their main grievance which was repeatedly requested by their lawyers in the Supreme Court matter, which was there should be no mining at all. In fact the request was to declare Goa a `No Mining Zone’. They have now shifted to this rhetoric as none of their prayers have been granted.
b) It would anti business, fairness and investment if after all this work, rights are snatched away, and sold to the highest bidder, who took no risk. Nevertheless, all of this is academic as the SC was very clear that state has to decide leases based on policy and in line with the Act. The Act supersedes any action of any state government, and both the Act and the SC have clearly addressed the Goa Foundation auctioning bubble. But Goa Foundation continues to precipitate it, as through that confusion, they hope to achieve their objective. Keep the mining closed.
Herald: Mr Timblo, your industry has always been accused of running this state and government and the allegation is that the government did not approach the Supreme Court against the High Court order because the government runs with the money that the industry gives it. But don’t you think at this juncture, it is becoming counter-productive to the industry itself if it seen as being in bed with the government trying to subvert the spirit of the SC judgment, while taking a public stand that it will honour the court
ABT: I do not feel the government in any way can be said to be favouring parts of mining industry. The state has a mandate to look after the state under the law and constitution. And it cannot take any actions contrary to the same.
