# COMMON CAUSE v. UNION OF INDIA AND ORS - **Citation:** [2017] 13 S.C.R. 361 - **Court:** Supreme Court of India - **Decided:** 2017-08-02 - **Bench:** Madan B. Lokur, Deepak Gupta - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/common-cause-v-union-of-india-and-ors-31921 - **Pages:** 95 ## Headnote Mines and Minerals - Illegal mining of enonnous proportions in districts of Odisha - Writ petition partly based on reports given by Justice MB. Shah Commissions of Inquiry sought directions, inter alia, to Union of India and Government ofOdisha to immediately stop forthwith all illegal mining in the State of Odis ha and for CBI investigation into such illegal mining - Plea of mining lease holders that reports given by Commission were v,itiated as they were not given notice u/ss.8B, 8C of the 1952 Act. and thus. the very foundation of the writ petition goes away - Held: First report given by Commission was a general, overall perspective on the subject - A B c D No irregularity or illegality has been committed so as to vitiate the first report - Second report went into specific details of several mining lease holders, but herein one is not concerned with those specifics - Therefore. whether notices were issued or not to the E lease holders who were the subject matter of discussion in the second report is of no consequence -However. the reports of the Commission are not being relied upon for the purpose of present judgment and order - Further. for now, no direction is being given with regard to any investigation by CBI - Expert Committee be set up under the guidance of a retiredjudge of Supreme Court to identifY the lapses occ1:l'red over the years enabling rampant illegal or unlawful mining in Odisha and measures to prevent this ji·om happening in other parts of the country - Furthe1; directions issued - Commissions of Inquiry Act. 1952 - ss.8B. 8C. Committees: Central Empowered Committee (CEC)- Constitution of-Held: CEC was first constituted by Supreme Court in T. N. Godavarma11 case as an interim body - Thereafter, it was constituted by notification issued uls.3(3) of the 1986 Act - It has continued 361 F G H 362 SUPREME COURT REPORTS [2017] 13 S.C.R. A fimctioning and is now an established body which renders extremely valuable advice to this Court- Environment (Protection) Act, 1986 - s.3(3). Central Empowered Committee (CEC) - Jurisdiction of - Challenge to - Plea of lease holders that in giving the report on B mining. CEC tfXceeded its remit - Held: Not tenable - Jurisdiction of CEC was not limited and it was expected to give a detailed report on all aspecrs of illegal mining or mining being carried out without any lawful authority in whatever manne1: lllines and Minerals (Development and Regulatio11) Act, 1957 c (MMDR) - ss.4(1). 4(2). 5(2). IO. 12. 13. 18. 21 - Grant ofmi11ing lease -- Schenie of - Discussed. s. 6 - Maximum area for which a prospecting licence or mining lease may be granted - Violation of by various companies - If any - Discussed. D Mineral Concession Rules, 1960 (MCR): E F G H Distinction between A!CR and MCDR - Held: The distinction is that the MCR deal. inter alia. with the grant of a mining lease and not commencement of mining operations - However. the MCDR deal. inter alia. with the commencement of mining operations and protection of environmenr by preventing and controlling pollution which might he caused by mining operations- Mineral Conservation and Development Rules. 1988 (MCDR). r.22A - Held: r.22A makes it clear that mining operations shall be undertaken only in accordance with the duly approved mining plan - Therefore. a mining plan is of considerable importance for a mining lease holder and is in essence sacrosanct - A mining scheme and a mining plan are a sine qua non for the grant of a mining lease. 1:24A - Plea of mining lease holders that since many of them were grantedfirst deemed statutory renewal of mining lease ulr.24A. the requirements of Environment Impact Assessment (EJA) Notification of 1994 (EIA 1994) would not be applicable - Held: Nor tenable - For renewal qf mining lease. an application is required to be made by mining lease holders and the deemed renewal clause ulr.24A will come into operation onzv ajier an application for renewal is made COMMON CAUSE v. UNION OF INDIA AND O ## Text _Characters 0–39,777 of 219,372. This is a partial read: ask again with offset=39777 for what follows._ [2017] 13 S.C.R. 361 COMMON CAUSE v. UNION OF INDIA AND ORS. (Writ Petition (Civil) No. 114 of2014) AUGUST 2, 2017 (MADAN B. LOKUR AND DEEPAK GUPTA, JJ.] Mines and Minerals - Illegal mining of enonnous proportions in districts of Odisha - Writ petition partly based on reports given by Justice MB. Shah Commissions of Inquiry sought directions, inter alia, to Union of India and Government ofOdisha to immediately stop forthwith all illegal mining in the State of Odis ha and for CBI investigation into such illegal mining - Plea of mining lease holders that reports given by Commission were v,itiated as they were not given notice u/ss.8B, 8C of the 1952 Act. and thus. the very foundation of the writ petition goes away - Held: First report given by Commission was a general, overall perspective on the subject - A B c D No irregularity or illegality has been committed so as to vitiate the first report - Second report went into specific details of several mining lease holders, but herein one is not concerned with those specifics - Therefore. whether notices were issued or not to the E lease holders who were the subject matter of discussion in the second report is of no consequence -However. the reports of the Commission are not being relied upon for the purpose of present judgment and order - Further. for now, no direction is being given with regard to any investigation by CBI - Expert Committee be set up under the guidance of a retiredjudge of Supreme Court to identifY the lapses occ1:l'red over the years enabling rampant illegal or unlawful mining in Odisha and measures to prevent this ji·om happening in other parts of the country - Furthe1; directions issued - Commissions of Inquiry Act. 1952 - ss.8B. 8C. Committees: Central Empowered Committee (CEC)- Constitution of-Held: CEC was first constituted by Supreme Court in T. N. Godavarma11 case as an interim body - Thereafter, it was constituted by notification issued uls.3(3) of the 1986 Act - It has continued 361 F G H 362 SUPREME COURT REPORTS [2017] 13 S.C.R. A fimctioning and is now an established body which renders extremely valuable advice to this Court- Environment (Protection) Act, 1986 - s.3(3). Central Empowered Committee (CEC) - Jurisdiction of - Challenge to - Plea of lease holders that in giving the report on B mining. CEC tfXceeded its remit - Held: Not tenable - Jurisdiction of CEC was not limited and it was expected to give a detailed report on all aspecrs of illegal mining or mining being carried out without any lawful authority in whatever manne1: lllines and Minerals (Development and Regulatio11) Act, 1957 c (MMDR) - ss.4(1). 4(2). 5(2). IO. 12. 13. 18. 21 - Grant ofmi11ing lease -- Schenie of - Discussed. s. 6 - Maximum area for which a prospecting licence or mining lease may be granted - Violation of by various companies - If any - Discussed. D Mineral Concession Rules, 1960 (MCR): E F G H Distinction between A!CR and MCDR - Held: The distinction is that the MCR deal. inter alia. with the grant of a mining lease and not commencement of mining operations - However. the MCDR deal. inter alia. with the commencement of mining operations and protection of environmenr by preventing and controlling pollution which might he caused by mining operations- Mineral Conservation and Development Rules. 1988 (MCDR). r.22A - Held: r.22A makes it clear that mining operations shall be undertaken only in accordance with the duly approved mining plan - Therefore. a mining plan is of considerable importance for a mining lease holder and is in essence sacrosanct - A mining scheme and a mining plan are a sine qua non for the grant of a mining lease. 1:24A - Plea of mining lease holders that since many of them were grantedfirst deemed statutory renewal of mining lease ulr.24A. the requirements of Environment Impact Assessment (EJA) Notification of 1994 (EIA 1994) would not be applicable - Held: Nor tenable - For renewal qf mining lease. an application is required to be made by mining lease holders and the deemed renewal clause ulr.24A will come into operation onzv ajier an application for renewal is made COMMON CAUSE v. UNION OF INDIA AND ORS. 363 in Form Jin Schedule I of MCR - Even otherwise, renewal of a A mining lease would require a prior environmental clearance (EC) in terms of EIA 1994. r.37 - Violation of - Several mining lease holders entered into raising contracts which were actually a transfer of lease as postulated by r. 3 7 - Held: Rule 3 7 provides. inter alia, that a mining B lessee shall not without the previous consem in writing of the State Government or Central Government, as the case may be, assign. sublet, mortgage, or in any other manne1; transfer the mining lease, or any right,. title or interest therein - It will he appropriate if a fresh look is given to the raising contracts entered into by mining lease holders and the raising contractor - Committee appointed. C Mineral Conservation and Development Rules, 1988 (MCDR): Purpose and objective of - Held: Is to ~~sure that mining operations are cmried out in a scientific manner with a high degree of responsibility including responsibility in protecting and D preserving the environment and the flora of the area. r. 31 - Protection of environment under - Obligation of - Held: Rule 31 provides that every holder of a mining lease shall take all possible precautions for the protection of environment and control of pollution while conducting any mining operations in the area - E Air (Prevention and Control of Pollution) Act, 1981 - Environment (Protection) Act, 1986 - Water (Prevention and Control of Pollution) Act. 1974. Notijicatio11/Circular: Environment Impact Assessment (E!A) Notification dtd. 27'" Jan. 1994 - Nature of - Held: It is a prohibitory notification and directs that on and from the date of its publication in the official gazette: (i) expansion or modernization of any activity (if pollution load is to exceed the existing one) and (ii) a new project listed in Schedule I to the notification. shall not be undertaken unless it has been accorded EC by the Central Government in accordance with the procedure specified in the notification - Further. EIA 1994 is also mandatory in character - It is applicable to all mining operations, new mining projects and renewal of mining leases - Environment (Protection) Act, 1986 - ss.3(1). 3(2){v) - Environment (Protection) Rules. 1986 - r.5(3)(d). F G H 364 A B c SUPREME COURT REPORTS [2017] 13 S.C.R. Environment Impact Assessment (EIA) Notification dtd. 27''' Jan. 1994 - Grant under, of environment clearance (EC) - Purpose of - Held: On receipt of an EC a mining lease holder can extract a mineral only from a specified site, upto the sanctioned capacity and only for a period of five years from the date of grant of EC - Consequently. a mining lease holder would necessarily have to obtain a fresh EC every five years and can also apply for an increase in the sanctioned capacity - Environment. Environment Impact Assessment (EIA) Notification dtd. 27"' Jan. 1994 - Grant under. of EC- Operation of- Held: There is no concept of a retr(Jspective EC - Its validity effectively starts only from the day it is granted - It takes precedence over the mining lease - Thus, mining operations under a mining lease are dependent on and 'subordinate· to the EC - Environment. Environment Impact Assessment (E/A) Notification dtd. 27"' Jan. 1994 - EC - Requirement of. for ongoing mining project - D Exemption. when given - Held: An exemption is granted from the requirement of obtaining an EC if there is no expansion and the existing pollution load is not exceeded - However. a no objection certificate from the SPCB is necessary for continuing the mining operations - Env,ironment. E F G H Environment Impact Assessment (EIA) Notification dtd. 27"' Jan. 1994 - Exprmsion and modernization of existing projects - Base year for considering pollution load while proposing any expansion activity - Determination of - Discussed - Environment. Environme111 Impact Assessment (EIA) 14"' September. 2006 - Requirement under - Environment Clearance (EC) - Held: EIA 2006 required prior EC for projects or activities mentioned in the Schedule to it. both for major as well as minor minerals. if the leased area is 5 hectares or more - Environment. Environme11t Impact Assessment (EIA) 14"' September. 2006 - Environment Clearance (EC) - Grant of - If retrospective - Held: An EC will come into force not earlier than the date of its grant - The concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence - Environment. Mines and Minerals: Mining plan - Actual Production limit - Violations of - Held: COMMON CAUSE v. UNION OF INDIA AND ORS. 365 A mining plan is valid for a period of five years - 20% deviation A from the mining plan (in terms of over-production) would he reasonable and permissible - A mining lease holder cannot extract the five year quantity (with a variation of 20%) in one or two years only. Illegal Mining - What is - Plea of lessees that a mining B operation only outside the mining lease area would constitute 'illegal mining· - Held: Not tenable - J//egal mining takes within its fold excess extraction of a mineral over the permissible limit even within the mining lease area which is held under lawful authority. if that excess extraction is contrary to the mining scheme. the mining plan, the mining lease or a statutory requirement - Mines and Minerals (Development and Regulation) Act. 1957 - s.23 C - Mineral Concession Rules. 1960 - r.2(iia) . Encroachment - lllegal mining outside the sanctioned mining areas - Direction issued. Consequences of lllegal mining - Discussed - Mines and Minerals (Development and Regulation) Act. 1957 - s.21 (5). Illegal mining - Penalty/Compensation for - Discussed - Mines and Minerals (Development and Regulation) Act, 1957 (MMDR) - s.21(5). Fore..vt (Conservation) Act, 1980 - s.2 - Violation of - Held: Since defauWng mining lease holders had paid additional Net Present Value (NPV) as well as an amount towards penal compensatory afforestation. it must be assumed that violation of the Act has been condoned to a limited extent - Environment. Issuing directions, the Court HELD: Justice M.B. Shah Commission of Inquiry c D E F 1. The first report given by the Commission was a general, G overall perspective on the subject, therefore, there is absolutely no question of any notice being Issued to any mining lease holder under Section .SB or the right of cross examination being granted to any mining lease holder under Section SC of the 1952 Act. While the second report went into specific details of several mining lease holders -but herein one is not concerned with these H 366 A B c D E F G H SUPRJ'ME COURT REPORTS [2017] 13 S.C.R. specifics. Therefore, whether notices were or were not issued to the lease holders who were the subject matter of discussion in the second repQrt is of no consequence.No irregularity .or illegality has been committed so as to vitiate the first report. A resume of the procedure followed will indicate that full opportunity was given to the lease holders to have their say. [Paras 32-34, 43] (394-E; 398-A-B, D; 401-C-DJ Central Empofered Committee and Initial contention 2.1 The Central Empowered Committee or the CEC was first constituted by this Court by an order in T.N.Godavar111a11 as an interim body. Thereafter, it was constituted by a notification issued under Section 3(3) of the Environment (Protection) Act, 1986. Jt has continued functioning and assisting this Court for more than a decade and even though it has been criticized on a couple of occasions, it is now an established hody which renders extremely valuable advice to this Court and provides factual material on the basis of which this Court can make some recommendati'iJns and pass appropriate orders. The CEC as a fact finding body has functioned impartially and it is only on the conclusions arrived at hy the CEC on the basis of the facts gathered that ~here can he some debate and discussion. [Paras 54, 55J [404-F-H; 405-C] 2.2 The jμrisdiction of the CEC was not limited and it was expected to give a detailed report on all aspects of illegal mining or mining being carried out without any lawful authority in whatever manner. [Para 53] (404-E] Statutory provisions 3.1 The grant of a mining lease is governed by the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (or the MMDR Act}, the Mineral Concession Rules, 1960 (or the MCR) and the Mineral Conservation and Development Rules, 1988 (or the MCDR).Section 4(1) of the MMDR Act provides that no person shall undertake any mining operation in any area except under and in accordance with the terms and conditions of a mining lease granted under the MMDR Act and the rules made thereunder. A mining operation is defined in Section 3(d) of the MMDR Act as meaning any operation COMMON CAUSE v. UNION Of INDIA AND ORS. 367 undertaken for the purpose of winning any mineral. Section 4(2) A of the MMDR Act provides that no mining lease shall be granted otherwise than in accordance with the provisions of the said Act and the rules made thereunder. Section 5(2) of the MMDR Act provides for certain restrictions on the grant of a mining lease.· (Paras 60-62) (406-H; 407-A-D) B 3.2 ,Section 10 of the MMDR act provides for the procedure for obtaining a mining lease. Section 13 of the MMDR Act provides for the rule making power of the Central Government in respect of minerals. The Mineral Concession Rules, 1960 (MCR) are.framed in exercise of power conferred by Section 13 of the MMDRAct. [Paras 63, 65) (407-D-E, G] C 3.3 Section 18 of the MMDR Act makes it the duty of the Central Government to take all such steps as may be necessary for the conservation and systematic development of minerals in India and for tl:te protection of the environment. The Mineral Conservation and Development Rules, 1988 (MCDR) are framed D in exercise of power conferred by Section 18 of the MMDR Act. Section 21 of the MMDR Act deals with penalties. [Para 66, 68) (407-H; 408-A, CJ 3.4 The distinction between the MCR and the MCDR is that the MCR deal, inter alia, with the grant of a mining lease E and not commencement of mining operations. However, the MCDR deal, inter alia, with the commencement of mining operations and protection of the environment by preventing and controlling pollution which might be caused by mining operations. (Para 67) (408-B-C) F Mineral Concession Rules, 1960 4 .. 1 Rule 22, MCR provides for an application to be made for the grant of a mining lease in respect of land in which the mineral vests in the government. Sub rule (5) of Rule 22 deals with a mining plan and it requires that a mining plan shall G incorporate, amongst other things, a tentative scheme of mining and annual programme and plan for excavation for year to year for five years. Rule 22A of the MCR makes it clear that mining operations shall be undertaken only in accordance with the duly approved mining plan. Therefore, a ·mining plan is of considerable H 368 SUPREME COURT REPORTS [2017] 13 S.C.R. A importance for a mining lease holder and is in essence sacrosanct.A mining scheme and a mining plan are a sine qua no11 for the grant of a mining lease. [Paras 69, 70] [408-E-H] 4.2 Rtjle 27 of the MCR deals with the conditions that every mining lease is subject to. One of the conditions is that the lessee B shall comply with the MCDR. [Para 71) [409-A) c D E F G H 4.3 Rlllc 37 of the MCR deals with the transfer of a lease and provides, inter alia, that a mining lessee shall not without the previous co11sent in writing of the State Government or the Central Government, as the case may be, assign, sublet, mortgage, or in any other manner, transfer the mining lease, or any right, title or interest therein. The lessee shall not enter into or make any bona fide arrangement, contract or understanding whereby the lessee will or may directly or indirectly be financed to a substantial extent in r:espect of its operations or undertakings or be substantially controlled by any person or body of persons. Subrule (3) of Rule 37 of the MCR enables a State Government to determine any lease if the mining lessee has committed a breach of Rule 37 of the MCR or has transferred any lease or any right, title or interest therein otherwise than in accordance with subrule (2) of ~ule 37 of the MCR. [Para 75] [409-E-G] Mineral Conservation and Development Rules, t 988 5.1 Cl)apter V of the MCDR deals with "Environment". Rule 31 of the MCDR provides that every holder of a mining lease shall take all possible precautions for the protection of the environment and control of pollution while conducting any mining operations in the area. Rule 37 of the MCDR requires-certain precautions to be taken against air pollution and obliges the mining lease holder to keep air pollution under control and within permissible limits specified under various environmental laws including the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986. The provisions of the Water (Prevention and Control of Pollution) Act, 1974 are required to be adhered to by the mining lease holder. [Paras 7981] [409-G-lll; 410-D-F, G] 5.2 The overall purpose and objective of the MMDR Act as well as the rules framed there under is to ensure that mining COMMON CAUSE v. UNION OF INDIA AND ORS. 369 operations are carried out in a scientific manner with a high degree A of responsibility including responsibility in protecting and preserving the environment and the flora of the area. Through this process, the holder of a mining lease is obliged to adhere to the standards laid down under the Environment (Protection) Act, 1986 or the EPA as well as the laws pertaining to air and water B pollution and also by necessary implication, the provisions of the Forest (Conservation) Act, 1980 (for short 'the FC Act'). Exploitation .of the natural resources is ruled out. If the holder of a mining lease docs not adhere to the provisions of the statutes or the rules or the terms and conditions of the mining lease, that person is liable to incur penalties under Section 21 of the MMDR C Act. Jn addition thereto, Section 4A of the MMDR Act which provides for the termination of a mining lease is applicable. (Para 83] (411-B-D] Environment Impact Assessment Notification of 27!.h January, 1994 6.1 The Environment Impact Assessment Notification is a prohibitory notification and directs that on and from the date of its publication in the official gazette: (i) expansion or modernization of any activity (if pollution load is to exceed the existing one) and (ii) a new project listed in Schedule I to the notification, shall not be undertaken unless it has been accorded environmental clearance (for short EC) by the Central Government in accordance with the procedure specified in the notification. [Para 85] [411-E-F, H; 412-A-B) 6.2 The notification provides, among other things, that in case of mining operations, site clearance shall be granted for a sanctioned capacity and shall be valid for a period of five years from commencing mining operations .. What this means is that on receipt of an EC a mining lease holder can extract a mineral only from a specified site, upto the sanctioned capacity and only for a period of five years from the date of the grant of an EC. This is regardless of the quantum of extraction permissible in the mining plan or the mining lease and regardless of the duration of the mining lease. Consequently, a mining lease holder would necessarily have to obtain a fresh EC every five years and can also apply for an increase in the sanctioned capacity. There is no D E F G H 370 A B c D E F G H SUPR;EME COURT REPORTS [2017] 13 S.C.R. concept of a uetrospective EC and its validity effectively starts only from the day it is granted. Thus, the EC takes precedence over the miqing lease or to put it conversely, the mining operations u1nder a mining lease arc dependent on and 'subordinate' lo the EC. [Para 86] [412-B-D] 6.3 If at1y proposed expansion or modernization activity results in an ~ncrease in the pollution load, then a prior EC is required. The project proponent should approach the concerned State Pollutiot1 Control Board (spcb) for certifying whether the proposed expansion or modernization is likely to exceed the existing pollution load or not. If the pollution load is not likely to be exceeded, the project proponent will not be required to seek an EC but a copy of such a certificate from the SPCB will require to be submitted to the Impact Assessment Agency which can review the certificate. [Para 88] [413-B-C] 6.4 Existing mining projects that have a no objection certificate from the SPCB before 27'" January, 1994 will not be required to obtain an EC from the Impact Assessment Agency. Of course, this is subject to the substantive portion of EIA 1994. However, if the existing mining project does not have a no objection certificate from the SPCB, then an EC will be required under EIA 1994. [Para 90] [413-F-G] 6.5 The base year would need to be the immediately preceding year that is 1993-94. In its report, the CEC has taken 1993-94 as the base year and there is no error in this. If the annual production of any year from 1994-95 onwards exceeds the annual production of 1993-94 or its preceding years, it would constitute expansion and if that expansion results in an increase in the pollution load over the existing levels, then an EC is mandated. [Para 92] [414-B-D] 6.6 EIA 1994 was intended to prevent the existing environmental load from increasing based on the existing data of the immediate past and not data of a few years gone by. The only exception that could be made in this regard would be if there is no production during 1993-94. In that event, the immediately preceding year would be relevant. In respect of a project that has commenced prior to 27'" January, 1994 there is an exemption from the requirement of obtaining an EC if there is no expansion COMMON CAUSE v. UNION OF INDIA AND ORS. 371 and the existing pollution load is not exceeded. In any event, a A no objection certificate from the SPCB is necessary for continuing the mining operations. Consequently, even if any mining lease holder does not have an EC or does not require an EC for continuing mining operations (but has a no objection certificate f~om the SPCB), the absence of an E.C would not have an adverse impact on the mining lease holder unless of course, there was an expansion in the mining operations without any certificate from the SPCB. [Paras 93, 94] [414-G-H; 415-A-C] 6. 7 The approval of a mining plan does not imply that a mining lease holder can commence mining operations. The mining lease holder is nevertheless obliged to comply with statutory provisions including the EPA and other laws. The EJA 1994 would apply to the renewal of a mining lease that came up for consideration post 27'" January, 1994. In other words, for the renewal of a mining lease, an EC was required by the mining B c .. lease holder. EIA 1994 is mandatory in character; that it is D applicable to all mining operations -expansion of production or even increase in lease area, modernization of the extraction process, new mining projects and renewal of mining leases. A mining lease holder is obliged to adhere to the terms and conditions of a mining lease and the applicable laws and the mere fact that a mining plan has been approved does not entitle a mining lease holder to commence mining operations. In M. C. Mehta this Court concluded that EIA 1994 is clearly applicable to the renewal E of a mining lease. [Paras 103-105] [416-F-G; 418-C-D, G-H] 6.8 An EC is required to be obtained before the renewal of a mining lease and the term 'expansion' would include an increase in production or the lease area or both. It was submitted on behalf of the mining lease holders that the possibility of getting an ex post facto EC was a signal to the mining lease holders that obtaining an EC was not mandatory or that if it was not obtained, the default was retrospectively condonable. This submission is liable to be rejected. [Paras 106-107] [419-B-C] Environment Impact Assessment Notification of 14!!! September, 2006 F G 7.1 On 1411' September, 2006 another EIA Notification was issued by the MoEF. This notification (for short EIA 2006) H 372 A B c D E Sl,IPREME COURT REPORTS [2017) 13 S.C.R. required prior EC for projects or activities mentioned in the Schedule to it both for major as well as minor minerals if the leased area is 5 hectares or more. Post EIA 2006, every mining lease holder having a lease area of 5 hectares or more and undertaking mining operations in respect of major minerals was obliged to get an EC in terms of EIA 2006. [Paras 108, 114] [419E-G; 421-A-B] 7.2 A mining plan is subordinate to the EC and having an approved 111ining plan does not imply that a mining lease holder can commence mining operations. That being so, a modified mining plan without a revised or amended EC, is of no consequence. [Para 116] [421-D] 7.3 20% deviation from the mining plan (in terms of overproduction) would be reasonable and permissible. [Paras 118] (422-A-BJI 7.4 For the purposes of renewal of the mining lease, an application is required to be made by the mining lease holders and the deemed renewal clause under Rule 24A of the MCR will come into operation only after an application for renewal is made in Form Ji in Schedule I of the MCR Even otherwise, in view of EIA 1994, it is quite clear that the renewal of a mining lease would require a prior EC. [Para 121] [423-B-C] 7.5 There is no doubt that the grant of an EC cannot be taken as a mechanical exercise. It can only be granted after due diligence and reasonable care since damage to the environment can have a long term impact. ETA 1994 is therefore very clear F that if expansion or modernization of any mining activity exceeds the existing pollution load, a prior EC is necessary. Even for the renewal of a mining lease where there is no expansion or modernization of any activity, a prior EC is necessary. Such importance having been given to an EC, the grant of an ex post G facto environmental clearance would be detrimental to the environment and contd lead to irreparable degradation of the environment. The concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence including EIA 1994 and EJA 2006. An EC will come into force not earlier than the date of its grant. (Paras 123, 1241 [423-H; 424-A-C] H COMMON CAlJSE v. UNION OF INDIA AND ORS. Illegal Mining 8. The holder of a mining lease is required to adhere to the terms of the mining scheme, the mining plan and the mining lease as well as the statutes such as the EPA, the FCA, the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. If any mining operation is conducted in violation of any of these requirements, then that mining operation is illegal or unlawful. Any extraction of a mineral through an illegal or unlawful mining operation would become illegally or unlawfully extracted mineral. lllegal mining ·is not confined only to mining operations outside a leased area. Such an activity is obviously illegal or unlawful mining. Illegal .mining takes within its fold excess extraction of a mineral over ;the permissible limit even within the mining lease area which is held under lawful authority, if that excess extraction is contrary to the mining scheme, the mining plan, the mining lease or a stat_ufory ·requirement. [Paras 128, 129] [425-B-D] ,Encroachments ' 9.1 Section 4(1) of the MMDR Act makes it clear that no per.son can carry out any mining operations except under and in accordance with the terms and conditions of a mining lease granted under the MMDRAct and the rules made thereunder. Obviously , therefore, any person carrying on mining operations without a ,!llining lease, is indulging in illegal or unlawful mining. This would 1 ~~o necessarily imply that if a mining lease is granted to a person ,!;V,hO ~arries out mining operations outside the boundaries of the ,P.J:i'!;ing lease, the mineral extracted would be the result of illegal ·,!Ir unlawful mining. In its report, the CEC has dealt with illegal 1 !Dining outside the sanctioned mining areas. It is stated that 82 .,mining leases for iron ore and manganese ore were identified by ,Jhe Commission where there were encroachments in the form of ,,illegal mining pits, illegal over-burden dumps etc. [Paras 130, .. ,pl] (425-E-H] · '" 9.2 A fresh Joint Survey to be conducted by concerned ,.