In July 2020, the government of Assam ordered an inquiry into allegations of illegal mining in the state’s Digboi forest division. The division, an administrative category, falls within the larger Dehing Patkai Elephant Reserve, one of India’s largest rainforests.
In December 2021, the report of the one-man commission of Justice Brojendra Prasad Katakey was tabled in the state assembly. Over nearly 300 pages, the report details rampant violations by North Eastern Coalfields, or NEC, a subsidiary of Coal India Limited, which is a Central government-owned company and the world’s largest coal miner.
Chief among the violations is the fact that since 2003, NEC had extracted coal valued at Rs 4,872 crore from areas where it did not have mining rights.
In India, any company seeking to mine coal and other minerals must apply for mining leases and other clearances, which are granted by state governments and central ministries for a specific duration. Even government-owned firms must follow the same procedures.
The commission found that several mining leases granted to NEC in the Digboi forest division had turned invalid because the company had failed to renew them after they had expired in 2003. Rather, it was only in 2019 that the government of Assam ordered the extension of the period of the leases from 2003 to 2023 – a deed to this effect was executed in January 2021.
The report noted that such “retrospective renewal of lease” was not allowed as per the Mineral Concession Rules, 1960, framed under Mines and Minerals (Development and Regulation) Act, 1957.
“Consequently, the NEC, CIL do not have any lease in respect of the aforementioned mines” from 2003 to the present, the report concluded. It described the company’s mining activity in these areas as “illegal”.
The commission recommended that the state government recover from NEC the full sum of the company’s earnings from these illegal mines between 2003 and 2021 – an amount that it calculated at an enormous Rs 4,872 crore.
The commission noted that in 2020, the state forest department had already imposed a penalty of Rs 43.2 crore on NEC for illegally mining 98.59 hectares of forest land.
But the report detailed how such action had come after years of neglect by the state authorities.
The 98.59 hectares of forest land, for instance, was allowed to be diverted for the Tikok Open Cast Project, even though the forest department was aware that the company had seriously violated the law.
As the commission noted, in August 2012, the chief general manager of NEC had submitted a proposal for the conversion of 98.59 hectares of forest land for non-forest use. In the same proposal, the company admitted to already having broken – or used for non-forest purposes – 57.2 hectares of this land as of 2012.
This constituted a violation under the Forest Conservation Act, 1980. But the Assam government recommended that this proposal be approved. Worse, the environment ministry acceded to this.
“The violation of the provisions of the 1980 Act is writ large on the said stage-I clearance granted by the Govt. of India,” the report said.
In a response sent in November 2020 to the commission, the Union environment ministry sought to assign blame for the clearance on the state government, stating, “There has been gross neglect on this account on behalf of the State Govt.”
However, a lawyer who asked to remain anonymous, because the Gauhati High Court is hearing petitions related to the matter, told Scroll.in that both the Central and state governments are responsible for recommending the diversion of forest land for non-forest use. He pointed out that as recently as 2020, the National Board for Wildlife, a Central body, had given its approval for coal mining inside the elephant reserve. “The NBWL is under the Ministry of Environment, Forest and Climate Change,” or the MoEFCC. “MoEFCC is trying to pass the buck. Let’s wait for the high court order,” the lawyer said.
The NBWL would go on to order the closure of the mines in July 2020, after the company failed to meet conditions the board had laid down. But the company had already halted its mining operations in the state in June 2020.
The environment ministry’s response also stated that the ministry had directed the state government to enquire into “the matter of gross violation and identify officials responsible for the violation” and inform the ministry about what action had been taken.
But, the report noted that except for the “initiation of few departmental proceedings against few officers”, the state government had not taken any action.
The report recommended that the officials of Assam’s mines and minerals department, and the environment and forest department, whose “negligence or acquiescence” led to the continuance of illegal activities be “identified and dealt with both under the Criminal Law as well as departmentally”.
Scroll.in sent questions to the North Eastern Coalfields, the Assam government and the Union environment ministry, seeking their responses to the commission’s report. No response had been received at the time of publication.
Protests and the setting up of the commission
Dehing Patkai Elephant Reserve, one of India’s largest rainforests, stretches across 937 square kilometers of Tinsukia, Dibrugarh and Sivasagar districts of Upper Assam. Dehing Patkai National Park is spread over 234.26 square kilometres within it. It is home to 47 species of mammals and reptiles, including the tiger, the clouded leopard and elephant, as well as 310 species of butterfly.
The area of the park also overlaps with the coal and oil-rich districts of Upper Assam.
The park and reserve made national headlines in April 2020, after the National Board for Wildlife granted approval for a coal mining project in the Saleki proposed reserve forest, which falls within Dehing Patkai Elephant Reserve. The move evoked sharp reactions from various quarters, including from students, conservationists, academics, actors and politicians.
Those opposing the move launched a virtual protest, posting photos of themselves on social media, holding banners, placards and slogans in support of the campaign. The protestors also ensured that numerous hashtags trended on Twitter, including #SaveDehingPatkai and #SaveAmazonOfEast.
Birder and cartoonist Deborshee Gogoi, who teaches marketing at the Digboi College, was among those who protested against the threat to the biodiversity rich region.
“Eighty percent of the Indian population of the white winged wood duck, which is also Assam’s state bird, is found in Assam,” he said. “It is also home to five species of hornbills, primates, and hundreds of bird species. But over the years, the open cast coal mining in the region has had devastating effects on the rich and unique biodiversity of Dehing Patkai, with pollution increasing and green cover decreasing.”
Devajit Moran, secretary of Tinsukia-based NGO Green Bud Society, said there had been rampant deforestation under Digboi and Doomdooma forest divisions due to coal mining.
“The illicit coal mining has destroyed the green cover of Dehing Patkai and some areas have become like deserts, where no trees can be found now,” Moran said. “Reclamation of all damaged hills is next to impossible.”
Amidst the protests, then Assam Chief Minister Sarbananda Sonowal instructed state environment and forests minister Parimal Suklabaidya to visit Dehing Patkai Wildlife Sanctuary and submit a report on the matter. In May 2020, the minister visited the area and declared that the government “will not allow opencast mining by destroying a forest”.
In July 2020, the government of Assam constituted the one-man commission of inquiry to examine the allegations of illegal mining.
Meanwhile, the issue had also reached the Gauhati High Court. In June 2020, based on a letter written by a citizen, and two writ petitions filed before it, the Gauhati High Court issued notices in the matter to NEC, as well as to the Centre and the state government.
In December 2021, the high court noted that the one-man commission was due to submit its report to the government soon, and listed the matter for January 24, 2022.
The commission examined nine areas which the state government had leased out for mining. These included four areas whose leases the government had renewed in 2021: a “4 square-mile area”, a “4.48 square-mile mining area”, the Tirap area of 238 hectares and the Jeypore area of 866.26 hectares.
The commission also conducted an enquiry into five areas for which leases had not been renewed in 2021, referred to in the report as “Sheelvata Lease (253.00 Hectares)” and “Namdhang Coal grant (156 hectares)”.
Four of these areas, that is, the 4 square-mile area, the 4.48 square-mile mining area, Tirap and Namdhang, fall within the Digboi forest division, while the remaining areas fall within neighboring divisions. The four areas overlapped with forested land of different classifications, including several contiguous reserved forests and proposed reserve forests, such as Saleki proposed reserved forest, Namphai reserve forest and Tingkopani reserve forest.
According to its terms of reference, the commission was to examine, among other questions, whether any illegal activity had been undertaken in Digboi forest division, with a particular emphasis on Saleki proposed reserve forest.
It was tasked with identifying those who were responsible for these activities, and whether the granting of leases and the processing of all other applications, had been in accordance with the relevant laws, such as the Mines and Minerals (Development & Regulation) Act of 1957 and the Forest Conservation Act of 1980.
It was also expected to recommend compensations or penalties that offenders should pay for illegal mining activity that they had conducted.
The commission’s findings
The commission’s report recorded several damning findings on violations within the areas it examined, and made scathing remarks against those it held responsible.
Citing one instance, the report states that in February 2021, the National Board for Wildlife sent to the area a two-member fact-finding team comprising a Shillong-based deputy director general of forests, of the environment ministry, and a nodal officer of the Assam forest department. The team was to “submit a factual report” on the renewal of the mining leases.
The team conducted a site visit and prepared a report that stated that the leases for the mines were valid up to 2033, according to the report.
The report noted that the team’s claim that “the lease in favour of the aforementioned mines became automatically validated up to 01.02.33 is not acceptable in law as well as in facts”. For the leases to be validated, it argued, the Central government would have had to exercise the power conferred under Section 31 of the Mines and Mineral Development Act that allows the Central government to extend mining leases.
The report noted that the commission “fails to understand” how the two-member committee “could record such a finding, which has no factual basis. These activities on the part of few officers create serious doubt about their intention to stop the illegal coal mining activities.”
While the commission devoted particular attention to the violations of the Tikok mine, it also recorded other similar violations in the 4 square-mile area, the Namdung coal grant lease and the Tirap coal grant lease. As with Tikok, in other cases, too, the NEC sought approval for renewal of leases, even while listing large tracts of forestland that had already been broken. In all, 243 hectares of forest land were already being used for non-forest purposes in these areas, without requisite permissions, even as the company sought permission for an additional 134.1 hectares.
In the case of Tikok, meanwhile, the commission noted that while the general manager of NEC had, while seeking conversion of 98.59 hectares of forest land to non-forest use, admitted that the company had already broken 57.2 hectares of that land, the divisional forest officer of Digboi stated to the commission that the company had actually broken 73.2 hectares of the land.
It wasn’t that these violations in Tikok had not been brought to the notice of the government earlier. The report states that the Additional Principal Chief Conservator of Forest, North Eastern Regional Office, informed the government of Assam in July 2012 “about the continued violation of the 1980 Act by NEC, CIL by operating the Tikok OCP and advised to stop all non-forestry activities on the forest land.”
This recommendation was not followed.
The report notes that the Additional Principal Chief Conservator of Forest, “having noticed the violation of the provision of the 1980 Act, ought to have immediately initiated penal action, which, however, has not been done.”
The operation of the Tikok mine without the requisite approvals was also in contravention of the Assam Forest Regulation 1891, the commission noted. The divisional forest officer of Digboi had underlined this violation in his deposition to the commission, which noted that an “offence report against the General Manager NEC, CIL and other” had been filed in the court of the sub-divisional magistrate of the town of Margherita in March 2019.
“The Commission, in view of pendency of the said proceeding before the learned Court, is not commenting anything in that regard,” the report noted.
The report noted that apart from operating without valid leases and clearances, the mines also fell afoul of environmental laws, such as those that are intended to curb air and water pollution.
Under these laws, known as the Air and Water Acts, the NEC was bound to obtain a “consent to operate” from the state pollution control board. The member secretary of the Pollution Control Board of Assam had informed the commission that the Tikok mine had operated without consent to operate in the years 2006-’07 and 2009-’10. “The NEC, CIL, thus, has also violated the provisions of the Air Act and the Water Act, which invites penal action under the aforesaid Acts.”
The violations of Tikok and other mines were also noted in extensive detail by the commission during site visits. This included in Tikok, “natural combustion of gaseous substance releasing very strong odours of chemical” and “collection of water in the mine, which appeared to be yellow in colour”. It also found “dumping of overburdens”, or waste material from mining, which had caused “damage to the vegetation”.
In Tirap, the commission found that water had collected in the mine, which was “greenish yellow in colour”. Here, too, the commission found “Huge dumps of overburden by the side of the project area, without any vegetation.” The report concluded that the commission’s observations “during the field visit indicate pollution of the environment because of open cast mining by NEC, CIL”.
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