Madras High Court
M.Periyasamy vs The State Of Tamil Nadu on 2 December, 2010
Author: R.Banumathi
Bench: R.Banumathi, S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02/12/2010
CORAM
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
AND
THE HONOURABLE Mr.JUSTICE S.NAGAMUTHU
W.P.(MD)No.11182 of 2010
W.P.(MD)No. 11562 of 2010
W.P.(MD)No. 11710 of 2010
W.P.(MD)No. 11827 of 2010
W.P.(MD)No. 12072 of 2010
W.P.(MD)No. 12098 of 2010
W.P.(MD)No. 12229 of 2010
and
W.P.(MD)No.12383 of 2010
W.P.No.11562/2010:
M.Periyasamy .. Petitioner
Vs.
1. The State of Tamil Nadu,
rep. by its Secretary to Government,
Industries Department,
Fort St. George, Chennai-9.
2. The Director of Geology and Mining,
Guindy, Chennai.
3. The District Collector,
Tuticorin, Tuticorin District.
4. The Executive Engineer,
Tamirabarani Basin,
Public Works Department (PWD),
Tuticorin District. .. Respondents.
W.P.No.11182/2010
C.Vaiguntaraman, President,
Tamiraparani Maruthur Keezhkhal Padmanabha-
mangalam Village Water Users Association,
No.1/270, Padmanabhamangalam,
Srivaikuntam Taluk,
Thoothukudi District. .. Petitioner.
vs.
1. The District Collector,
Thoothukudi District,
Thoothukudi.
2. The Assistant Director of Geology and Mining,
Thoothukudi. .. Respondents.
W.P.No.11710/2010
Madasamy .. Petitioner.
vs.
1. The District Collector, Tuticorin
2. The Revenue Divisional Officer,
Beach Road, Tuticorin.
3. The Assistant Director,
Mines and Minerals,
Collectorate Office,
Tuticorin.
4. The Tahsildar,
Srivaikuntam Taluk, Tuticorin District.
5. The Executive Engineer,
Public Works Department(Water Resources)
Tamirabarani Distribution Circle,
Tirunelveli.
6. The Executive Engineer,
TWAD (Village),
Tuticorin.
7. Parvathy,
President,
Tholappanpannai village panchayat,
Srivaikuntam Taluk, Tuticorin District. .. Respondents.
(7th Respondent was impleaded as per the
order of the Court in WP MP(MD) No.4/2010
dated 29.09.2010)
W.P.No.11827/2010
M.S.Murugaiah Pandian .. Petitioner.
vs.
1. The District Collector,
Thoothukudi District,
Thoothukudi.
2. The Tahsildar, Srivaigundam Taluk Office,
Srivaikundam, Thoothukudi District. .. Respondents.
W.P.No.12072/2010
The President,
Keelakaduvetti Panchayat,
Kalakad Panchayat Union,
Tirunelveli District. .. Petitioner
vs.
1. The District Collector,
Tiruneveli District.
2. The Sub Collector,
Cheranmahadevi,
Tiruneveli District.
3. The Dy. Director of Geology and Mining,
Tiruneveli District.
4. The Tahsildar,
Nanguneri, Tirunelveli District.
5. The Executive Engineer,
Public Works Department/
Water Resource Organisation,
Tamirabarani Basin Division,
Tiruneveli District. .. Respondents.
W.P.No.12098/2010
Kanagaraj,
District Secretary,
Communist Party of India (Marxist),
No.15, Poltenpuram 3rd street,
Thoothukudi. .. Petitioner
Vs.
1. State of Tamil Nadu,
rep. by its Secretary,
Public Works Department,
Secretariart, Chennai-9.
2. The District Collector,
Thoothukudi District,
Thoothukudi.
3. The Assistant Director/Geology & Mining,
Thoothukudi District,
Thoothukudi.
4. The Executive Engineer,
PWD/WRO,
Tamiraparani Basin Division,
Tirunelveli-2.
5. The District Environmental Engineer,
Tamil Nadu Pollution Control Board,
Thoothukudi. .. Respondents.
W.P.No.12229/2010
R.Nallakannu .. Petitioner.
vs.
1. The District Collector,
Thoothukudi District,
Thoothukudi.
2. The Assistant Director of Geology and Mining,
Thoothukudi.
3. The Public Works Department
rep. by its Executive Engineer,
Tamiraparani Basin,
PWD(Water Resources),
Thoothukudi District. .. Respondents.
W.P.No.12383/2010
S.Nainar Kulasekaran .. Petitioner.
Vs.
1. State represented by
The Chief Secretary to Government,
Government of Tamil Nadu,
Public Works Department,
Secretariat, Chennai.
2. State represented by
The Secretary to Government,
Government of Tamil Nadu,
Department of Environment,
Secretariat, Chennai.
3. The District Collector,
Thoothukudi District,
Thoothukudi.
4. The District Collector,
Tirunelveli District,
Tirunelveli.
5. The Conservator of Forest,
Forest Department,
Palayamkittai, Tirunelveli. .. Respondents.
Prayer
W.P.No.11182/2010 - Writ Petition filed under Article 226 of
Constitution of India praying to issue Writ of Mandamus directing the
Respondents to forthwith prevent the illegal sand mining in river basin of
Thamiraparani river, abutting Tholappanpannai village Srivaikuntam Taluk,
Thoothukudi District by acting on the Petitioner's representation dated
19.08.2010 submitted to the District Collector, Tuticorin.
W.P.No.11562/2010 - Writ Petition filed under Article 226 of Constitution
of India praying to issue Writ of Mandamus directing the Respondents 1 to 3 to
forbear the 4th Respondent from quarrying sand on Thamirabarani River bed/basin,
South Thozhappan Pannai village, Thiruvaikundam Taluk, Tuticorin District.
W.P.No.11710/2010 - Writ Petition filed under Article 226 of Constitution
of India praying to issue Writ of Ceritiorarified Mandamus calling for the
records relating to the proceedings of the 1st respondent in Na.Ka.GM.1/75/2010
dated 8.4.2010 and to quash the same and forbear the Respondents from operating
the sand quarry in Survey No.1/1, Tholappanpannai village, Srivaikuntam Taluk,
Tuticorin District.
W.P.No.11827/2010 - Writ Petition filed under Article 226 of Constitution
of India praying to issue Writ of Mandamus directing the 1st Respondent to
consider the representation dated 31.08.2010 within a stipulated period as may
be fixed by this Court.
W.P.No.12072/2010 - Writ Petition filed under Article 226 of Constitution
of India praying to issue Writ of Certiorari to call for the records of impugned
order Rc.No.M2/19674/2010 dated 09.09.2010 passed by the 1st Respondent and
quash the same.
W.P.No.12098/2010 - Writ Petition filed under Article 226 of Constitution
of India praying to issue Writ of Mandamus
forbearing the Respondents from doing quarrying operations in Thamirabarani
river in Tholappanpannai village in Srivaikundam Taluk.
W.P.No.12229/2010 - Writ Petition filed under Article 226 of Constitution
of India praying to issue Writ of Mandamus directing the first Respondent to
cancel the permission granted in favour of the third Respondent to quarry sand
in Thamiraparani river in Tholappanpannai village in Survey No.1/1 of
Srivaikuntam Taluk, Toothukudi District by Proceedings Na.Ka.No.GM.1/75/2010
dated 08.04.2010.
W.P.No.12383/2010 - Writ Petition filed under Article 226 of Constitution
of India praying to issue Writ of Mandamus forbearing the 3rd and 4th
Respondents from permitting the sand mining activities in Thamiraparani river.
!For Petitioner
in WP.No.11562/2010 ... Mr.M.Ajmal Khan
For Petitioner
in W.P.Nos.11182 & ... Mr.G.R.Swaminathan
12383/2010
For Petitioner
in W.P.No.11710/2010 ... Mr.J.Ashok for
M/s.Jayapaul Associates.
For Petitioner
in W.P.No.11827/2010 ... Mr.S.Chandrasekar
For Petitioner
in W.P.No.12098/2010 ... Mr.D.Srinivasaragavan
For Petitioner
in W.P.No.12229/2010 ... Mr.R.Nallakannu
Party-in-Person.
For Petitioner
in W.P.No.12072/2010 ... Mr.M.V.Venkateseshan
^For Respondents ... Mr.P.S.Raman,
-Govt.Officials Advocate-General, Chennai
in all W.Ps assisted by
Mr.V.Rajasekaran,
Spl. Government Pleader
for the State in all W.Ps.
For 7th Respondent in ... Mr.Veerakathiravan
W.P.No.11710/2010.
:COMMON ORDER
R.BANUMATHI,J These Writ Petitioners inter alia raise important questions of public interest as to whether sand quarrying had been done well beyond the stipulated permission granted affecting the normal course of river, supply of water for irrigation and for drinking purposes and what are the remedial measures to ensure the scientific sand quarrying.
2. Since all the Writ Petitions are concerned with quarrying of sand in Tamiraparani river and the points for consideration are one and the same, all the Writ Petitions were taken up together and disposed of by this Common Order.
3. Tamiraparani river - Tamiraparani river originates near Pothigai mountain in the Western Ghats. Locally "Pothigai" is called "Periya Pothigai", the great Pothigai, to distinguish it from a smaller mountain adjoining it called "Aindu-talai Pothigai", the Pothigai with five heads. Periya Pothigai is the highest in the Tirunelveli range of Western Ghats and the highest point is "Pothigaimudi Peak" reaching 1868 m. Pothigai Mountain is locally called Agasthiar malai. The river leaving the ghats at Papanasam, runs in a south- easterly direction to Cheranmahadevi, then north-east between Tirunelveli and Palayamkottai then again south and east entering into the Gulf of Mannar close to Punnakayal, 15 km. south of Tuticorin. The total length is 120 km. The river basin occupies an aerial extent of 5382 km2 covering the areas of Ambasamudram, Tenkasi, Shencottah, Kadayanallur, Tirunelveli, Srivaikundam taluks and partly the areas of Sankarankoil, Nanguneri, Kayathar and Tiruchendur taluks of Tirunelveli and Tuticorin districts [Vide - Commission Report 3.1].
4. Out of the total land area (4016 km2) in and around the main river and along its drains, 67.4% is crop land. Paddy is the main crop. The remaining area is occupied by oil seed crops like groundnut, millets like sorghum and ragi, pulse crops like black gram and green gram, tubers like colacacia, coleous, amorphaphalus and tapioca, vegetables like brinjal, tomato, chilli and cluster beans and annual crops like sugarcane and plantain. The farmers of Tamiraparani river basin follow double crop season pattern, Kar and Pisanam. While the Kar cultivation stretches between June 15 and September 15, the Pisanam cultivation is taken up between October 15 and March 15. There is a waterfall on the main Tamiraparani river called 'Banatirtham' on the slope of Pothigai Mountain. There is yet another famous waterfall, not far from Banatirtham, called "Pamban Aruvi". This remarkable falls is not in the main stream, but in a tributary (Pambar), which rises on the "five - headed Pothigai"
[Vide Commission Report 3.3].
5. There are many ancient temples along the banks of the river and the people consider it holy to take bath in the river. Every portion of the river is considered sacred. The perennial flow of Tamiraparani is regulated by Papanasam and Servalar reservoirs for producing hydroelectric power. Proper infrastructure management starting from Papanasam to Punnakayal at about 65 points meets the need for drinking water for lakhs of people in Tirunelveli and Tuticorin districts. Besides providing succour to the plants and the people, Tamiraparani river is providing water to many major industries in Tuticorin district viz., Southern Petrochemical Industries (SPIC), Tuticorin Alkalai Chemicals (TAC), Tuticorin Thermal Power Stations. [Vide Commission Report 3.3]
6. The system of regulation and use of water for irrigation is very old and it is also more economical because storage tanks or wetlands are in their natural state with some alterations in the flow regulation by the construction of sluice gates. In modern times, the upper catchments of the basin have been further modified by the construction of reservoirs. The biggest one is Papanasam Reservoir with a storage capacity of 150 million cubic metres located at Karaiyar village. This is connected to another reservoir on the Servalar river through a tunnel of length 3.3 km and 3 m diameter which together feed the hydroelectric power house. Apart from this, there is a diversion weir called "Papanasam Reservoir Weir" (Lower Reservoir) located below the confluence of Servalar river and Tamiraparani river, to divert the water for power generation. Whenever the demand for irrigation is higher than the requirement for maximum power production, the excess water will be directly let down into the river. In the downstream, Tamiraparani river gets regulated by small dams or weirs in eight places. [Vide Commission Report 3.4]
7. Type of soil in Tamiraparani river - Tamiraparani river basin is mainly a hard rock terrain, predominantly underlaid by crystalline Archaean rocks which are heterogeneous in nature. Three major types of soils occur in Tamiraparani river basin namely (I) red sandy soil (thickness 1-5 m), (ii) black cotton soil (thickness 1-3 m) and (iii) the alluvial soil (thickness 7-12m). Major portion of the basin is covered with red sandy soil and black cotton soil is confined to the north-eastern portion (Balasubramanian and Sastri, 1999).
8. Policy of State in Entrusting Sand Quarrying to Public Works Department - Taking cognizance of pernicious practice of unsustainable over exploitation of sand in the State of Tamil Nadu and based upon the directions in the Public Interest Litigation by the Madras High Court, in public interest, in 2003, the State of Tamil Nadu decided that sand quarrying will be undertaken only by the Government through a single Department viz., Public Works Department. In G.O.Ms.No.95 Industries (MMC.1) Department dated 01.10.2003, it was ordered that quarrying of sand in Government poramboke lands and private patta lands by private agencies will cease to be effective with immediate effect and sand quarrying was entrusted to a single agency viz., Public Works Department.
9. Rule 38-A was inserted to Tamil Nadu Minor Mineral Concession Rules (in short, "TN MMC Rules") stipulating that all existing leases for quarrying sand in Government lands and permissions/leases granted in ryotwari lands shall cease to be effective on and from the date of coming into force of Rule 38-A and the right to exploit sand in the State shall vest with the State Government to the exclusion of others.
10. As per Rule 36-A Sub-rule (6) of TN MMC Rules, no machinery shall be used for quarrying sand from river beds. By G.O.Ms.No.19 Industries (MMC.1) Department dated 19.04.2004, Rule 36-A(6) was amended to the effect that the Secretary to Government, Industries Department or any other Authority or Officer, as may be authorised may grant permission for use of machinery, if it is not detrimental to ecology.
11. Permission to quarry sand in Tamiraparani river - Tuticorin District - By various proceedings, the District Collector, Tuticorin has granted permission/licence to carry out sand quarry operations in Tholappanpannai of Tamiraparani river bed. As per G.O.Ms.No.110/P.W.(W.Spl) Dept. dated 6.7.2006, new sand quarry proposals have to be sent to the District Collector for approval. Based on the proposal, the District Collector granted approval for sand mining by the Public Works Department for sand quarrying in Tholappanpannai. In D.O. Lr.No.9693/I.Spl.2/2005-1 dated 18.03.2005, Public Works Department instructed that the sand quarrying work should be executed as per the rules of the Government in force by strictly following the transparency in Tender Act and Rules of the Government. Based on the said instructions and based on the High Court Order dated 03.08.2005 in W.P.No.12934 of 2005 and other matters, after calling for tenders for the purposes of quarrying of sand by man power, sand quarrying was entrusted. In Tholappanpannai. Government Sand Quarry, the quarrying of sand is said to have been done and permits are said to be issued by the Public Works Department to the sand loaded lorries every day. Alleging that there is indiscriminate sand quarrying and that there is illegal quarrying of sand beyond the permission granted, the Petitioners have filed the Writ Petitions in W.P.Nos.11710 and 12072/2010 seeking for Certiorarified Mandamus to quash the Proceedings of the 1st Respondent-District Collector, Tuticorin in Na.Ka.GM.1/75/2010 dated 08.04.2010 and Rc.No.M2/19674/2010 dated 09.09.2010 of the District Collector, Thoothukudi and Tirunelveli respectively and forbear the Respondents from operating sand quarrying in Tholappanpannai in Tamiraparani river bed.
12. Case of Petitioners is that sand quarry operations are carried out by using machinery such as Poclains, Hitachi and the private persons who are engaged to operate quarry have laid the road to the width of 10 - 20 feet across the river and the roads are used for transporting sand in 700 -800 lorries in that area without despatch slip as required under Rule 36 Sub-rule (5) of TN MMC Rules round the clock. Petitioners averred that even though permission was granted for sand quarrying to Public Works Department, the quarrying operations are carried out by lessees and inspite of number of representations, Respondents have not taken any steps to regulate the quarrying operations and the quarrying operations are carried out over and above the permitted area.
13. According to Petitioners, sand quarrying permission was granted only in respect of an extent of 15.40.0 Hectares, but the sand quarry operations were carried out over and above the permitted area, which is in clear violation of the rules and regulations prescribed under TN MMC Rules. By such haphazard quarrying, the water flow in the river is affected and the water resources to the cultivable lands in and around Tholappanpannai village and also drinking water supply to the village is very much affected. Alleging that such indiscriminate sand quarrying is in complete violation of TN MMC Rules, Petitioners in W.P.No.11710/2010 seek to quash the Proceedings in Na.Ka.GM.1/175/2010 dated 08.04.2010 granting permission to quarry in Tholappanpannai village and seeks direction to forbear the Respondents from operating the sand quarry in Tholappanpannai village. Likewise, the Petitioner in W.P.No.12072/2010 seek to quash the Proceedings in Na.Ka.Rc.No.M2/19674/2010 dated 09.09.2010 granting permission to quarry in Keelakaduvetti village, Nanguneri Taluk, Tirunelvelii District.
14. Alleging that there is illegal sand quarrying in Tamiraparanii river, the Organiser of Tamiraparani River Water Protection Organisation has filed W.P.No.12383 of 2010 seeking Writ of Mandamus forbearing the Respondents from permitting the sand mining activities in the entire Tamiraparani river.
15. Respondents have filed counter stating that only the Public Works Department alone is doing sand quarry with the help of man power and every day more than 200 employees are working in the places for sand quarrying and that the mining is done as per the rules stipulated in the Government Orders. According to Respondents, as per G.O.Ms.No.110/PW (W.Spl.) Department dated 6.7.2006, new sand quarry proposals have to be sent to the District Collector for approval and based on the said proposal, the District Collector granted approval for sand mining by the Public Works Department. It is averred that tenders were called for supply of man power for sand quarrying. According to Respondents, sand is essential for implementation of number of Housing Schemes, Check dam works and Village Developmental Schemes. It is the case of Respondents that sand quarries are functioning in a skillful, scientific and systematic manner. According to Respondents , Poclain is occasionally used only to retrieve the struck up loaded lorry which is caught in sand and machineries are not used in sand quarrying.
16. During the course of hearing, it was brought to the notice of the Court that permission was granted for sand quarrying in Tamiraparani river in Thirumalaikolunthupuram in Tirunelveli District apart from Tholappanpannai, Kizhpadigai Appankovil, Mukkani and Mangalakurichi in Tuticorin District. In the initial stages of hearing, materials were produced bringing it to the notice of the Court that there is illicit mining and that machineries are also used. On 16.09.2010, the Court has passed an order of interim stay of all activities of sand quarrying through Tamiraparani river until further orders. By an order dated 28.09.2010, the same was modified continuing the interim order in respect of Tholappanpannai. Insofar as the other quarries, interim stay was lifted subject to the conditions elaborated in the order dated 30.09.2010 and that order was subsequently modified by order dated 20.10.2010.
17. By an order dated 30.09.2010, Commission was appointed consisting of (i) Mr.N.Seshasayee, Registrar (Judicial), Madurai Bench of Madras High Court; (ii) Dr.N.Chandrasekar, HOD, Center for Geo-Technology, Manonmaniam Sundaranar University and (ii) Prof.M.Arunachalam, HOD, Sri Paramakalyani Center for Environmental Sciences, Manonmaniam Sundaranar University to file its report on 06.10.2010.
18. The Division Bench of the High Court has directed the Commission to report on:
(a) Physical status of sand quarry in (i) Thirumalaikolunthupuram, (ii) Tholappanpannai (iii) Kilpidagai Appankovil (iv) Mukkani and (v) Mangalakurichi of Tamiraparani river system;
(b) Whether further quarrying of river sand in the above referred five sites would be detrimental to (I) public interest, (ii) the interest of ayacutdars and (iii) on ecological balance.
The Commission inspected sites in (a) Thirumalaikolunthupuram (b) Tholappanpannai and (c) Kizhpadigai Appankovil on 1.10.2010. The Commission inspected remaining two sites: (i) Mukkani and (ii) Mangalakurichi on 4.10.2010 and filed its Report.
19. The Bench has appointed the Commission to visit the sites and file its report as to (i) extent of sand quarrying done; (ii) feasibility of further quarrying, (iii) its impact on public interest and interest of ayacutdars, drinking water and on ecological system. Along with officials represented by the counsels and also parties, Commission inspected the five sites. The Commission felt that more details, which are available with the Government Departments, may be required to give the report with greater accuracy. However, after inspecting the river and by examining the physical features of sand quarried five sites, the Commission has given its report elaborating upon the extent of quarrying done and the physical impact of sand quarrying on the river and also on the ecological system and also suggesting remedial measures, which we would refer to at appropriate places.
20. The Commission's report consists of three parts. Part I - report is prepared by Registrar - Judicial containing consolidated opinion of experts. Part I contains notes on classical river system, Court direction, constraints, foundation of the report, status of five sites on sand mining, extent of sand mining, the effect on river eco-system, special features of the five sites, conclusions and suggestions. Part II is the report of Dr.N.Chandra Sekar, H.O.D. of Centre for Geotechnology, Manonmaniam Sundaranar University. Part II comprises of general aspects of river system, views of the expert on five sites, general observations with conclusions and suggestions along with photo documentation. Part III is the report of Dr.M.Arunachalam, H.O.D. of Sri Paramakalyani Centre for Environmental Sciences, Manonmaniam Sundaranar University. Part III also contains river ecosystem, understanding of river sediments and physical processes, uniqueness of Tamiraparani river, physical status of five sites in Tamiraparani river on sand mining in instream, floodplain and terrace, Observations on all the five sites, recommendations and conclusions.
21. By and large, the Commission has noticed that in all five sites and in addition, one in Siruthandanaloor adjacent to Mangalakurichi, Commission commonly noticed:- (i) digging of huge pits which looked like ponds and lakes and pits were characterised by water stagnation; (ii) along the fringes of these pits huge pile of sand blended with clay was seen; (iii) pathways of permanent nature and (iv) quarried site is definitely obstructing free flow of water and an impediment to general course. Commission opined that all the above combined has altered the eco-system in all the five sites.
22. Before we advert to the rival contentions of the parties, it is worthwhile to refer to the relevant provisions of the TN MMC Rules. Rule 38-A deals with quarrying of sand by the State Government stipulating that all existing leases for quarrying sand in Government lands and permissions/leases granted in ryotwari lands shall cease to be effective on and from the date of coming into force of Rule 38-A and the right to exploit sand in the State shall vest with the State Government to the exclusion of others.
23. In G.O.Ms.No.327, Industries Department dated 1.12.1997, the Government issued orders by introducing sub-rule (6) to Rule 36-A of TN MMC Rules to the effect that no machinery shall be used for quarrying sand from river beds. The said rule was introduced for the reason that private parties operating quarries were all non-technical people and do not possess the knowledge of theoretical bed level and bed fall of the river and if they are allowed to use the machinery, the quarrying work will be done in an uncontrollable manner and more than the allowable depth with a profit motive. As pointed out earlier, Rule 38-A was introduced under which the Public Works Department has been entrusted with the task of operating sand quarries in the State. In view of the demand from the public and also to cater to the need, the Government decided to amend Sub-rule (6) of Rule 36-A relating to the use of machinery for quarrying of sand in river beds with some conditions, Government passed G.O.Ms.No.19 Industries (MMC 1) dated 19.4.2004. Rule 36-A sub-rule (6) was substituted as under:
"No machinery shall be used for quarrying sand from river beds, except with the permission of the Secretary to Government, Industries Department or any other authority or Officer, as may be authorized by him in this behalf, who may grant such permission if use of such machinery will not be detrimental to ecology."
24. As per proviso to sub-rule (1) of Rule 36 of TN MMC Rules, there shall be no quarrying of sand in any river bed or adjoining area or any other area which is located within 500 metres radial distances from the location of any bridge, water supply system, infiltration well or pumping installation of any of the local bodies or Central or State Government Department or the Tamil Nadu Water Supply and Drainage (in short, "TWAD") Board head works or any area identified for locating water supply schemes by any of the above mentioned Government Departments or other bodies.
25. In the D.O.letter No.9693/I.Spl.2/2005-1 dated 18.3.2005, the Secretary to Government, Public Works Department, Secretariat, Chennai addressed to the Chief Engineer, Madurai Region Water Resources Organisation, Public Works Department that the sand quarry should be executed as per the rules of the Government in force by strictly following transparency in Tender Act and Rules of the Government. The relevant portion in the said letter reads as under:
"..... 2. I am to state the above work (sand quarrying) should be executed following the guidelines enshrined in the Tamil Nadu Minor Minerals Concession Rules, 1959 like
1. No quarrying within a distance of 50 meters from a railway line, reservoir, canal or other public work such as public roads and buildings (this can be relaxed by the Appropriate Authority) In respect of Village roads, 10 meters safety distances should be provided. No quarrying within 500 meters radial distances from the location of any bridge water supply system, infiltration wells or pumping installations.
2. Shall keep correct accounts showing productions and despatches.
3. Shall carryout quarrying operations in a skilful, scientific and systematic manner keeping in view of proper safety of the labour, structure and the public works located in the vicinity to preserve the environment and ecology of the area.
4. As per Tamil Nadu Minor Minerals Concession Rules, 1959 Rule 12(2)(1) Pit shall be at a distance of atleast twice the height of the bund from the top of the bund and they shall not be more than one metre in depth (the depth shall be less, if pits one metre deep are likely to expose porus strata) The above rules stipulated in the Tamil Nadu Minor Mineral Concession Rules should be judicially taken into account while undertaking Sand Quarrying. The above instructions were directed to be scrupulously followed by the field level officers.
26. In so far as Tholappanpannai sand quarry, based on the proposal of Executive Engineer, P.W.D., the District Level Committee inspected the site and submitted its inspection report. Pursuant to the request of proposal of Executive Engineer, P.W.D. and the Joint Inspection Report of the District Level Committee, by the impugned proceedings in Na.Ka.G.M.No.1/75/2010 dated 8.4.2010 the District Collector, Thoothukudii has granted permission to P.W.D. (W.R.O.) to quarry sand in Tamiraparanii river in Survey No.1/1 - 71.01.5 hectares with specifications and conditions, the translated version of the said proceedings read as follows:
"The Survey Number 1/1 in Tholappanpannai village, Srivaikuntam Division, Thoothukudi District is of a total area of 71.01.5 hectares. This field has been classified as Tamiraparani river poramboke as per village revenue accounts. This is bounded on the north and west by patta lands and by Tamiraparani river on the eastern and western sides. The flow of the river is from west to east. A safety zone shall be left for a distance of 50 metres each from the northern and southern banks of the river bed. The details pertaining to the places proposed for sand quarrying are as follows:-
Within 500 metres around this place, there are no drinking water wells maintained by the Drinking Water and Sewerage Board. There are no bridges. There is sufficient facility for pathway. This part is shown as coloured portion in topographic sketch. The total area of this is 71.01.5 hectares. This extent of area alone has been selected by the Public Works Department for fresh sand quarrying.
Name of the Village Survey No. Total extent Extent eligible Classification (hectares) for lifting sand (hectares) Tholappanpannai 1/1 71.01.5 15.40.0 Tamiraparani river poramboke
Due to the monsoon rains in 2008 and 2009, the Tamiraparani river was flooded and hence sand got collected in the above said river bed and it can be seen that sand accumulation is approximately to a depth of 1 metre. Accordingly, the extent of sand to be lifted from the place, which has been selected for sand quarrying, is as follows:
1. Area of the place selected for quarrying = 700 x 200 = 1,54,000 sq.m.
2. Depth of sand to be quarried = 1 metre
3. Accumulation of sand in the proposed area= 1,54,000 cu.mtrs.
(or) 54,417 units Conditions:
1. The sand has to be quarried uniformly to a depth of 1 metre only, without causing hindrance to the water field.
2. The four corners of the permitted quarrying area shall be demarcated by fixing iron pipes with concrete, which shall be coloured and shall be continuously maintained and protected. Further, the area to be quarried shall be bench-marked and maintained.
3. On the northern and southern banks of the river, a safety zone to a distance of 50 metres shall be left and boundary stones shall be implanted and they shall be continuously maintained and protected. No kind of quarrying shall be carried out in the safety zone.
4. Without causing damage to the banks of the river and hindrance to the flow of water, a separate pathway should be made for the movement of the vehicles and then quarry work should be commenced. On completion of the quarry work, the above said pathway should be closed in such a manner that there is free flow of water.
5. The vehicle should carry only the extent of sand as fixed by the Government and they shall be permitted to leave the quarry only with the relevant permit slips. There shall be no specification made in the permit slips as to the transportation of sand to other States. A report containing the particulars regarding the limit of weight to be loaded everyday shall be submitted. Further, the quarrying work shall be carried out only during the time fixed by the Government i.e., morning 8.00 hours to evening 6.00 hrs.
6. When sand is lifted from the quarry by using heavy machines like poclains. It shall be ensured that the heavy machines are used only after obtaining prior sanction of the Government under Rule 36-A (6) of the Minor Mineral concession Rules.
7. On completion of lifting of quarry to the above extent of 54,417 units, a completion report shall be submitted to the Collector, Thoothukudi."
27. Onbehalf of the petitioners, it was contended that in violation of TN MMC Rules and conditions of permission, sand quarry operations are carried out using machinery such as poclains, Hitachi, etc., and quarrying operators have laid a road to a width of 10 - 20 ft across the river and thereby prevented the free flow of water affecting irrigation for agricultural lands and also sources for drinking water. It was further argued that even though permission was granted in favour of P.W.D. (W.R.O), the quarrying operations are carried out by private contractors, who are using machinery for removing sand upto 10-15 feet depth from the river bed and quarrying operations are carried out in violation of the rules and regulations of TN MMC Rules. Learned counsels appearing for the Petitioners Mr.Ajmal Khan and Mr.G.R.Swaminathan and other counsels as well as party in person - Mr.R.Nallakannu contended that indiscriminate sand quarrying has led to lowering of water tables undermining river beds and would seriously affect the aquatic and riparian habitations. It was further contended that since there is flagrant violation of rules and regulations of TN MMC Rules and the excessive sand quarrying has affected the flow of water, the sand quarrying has to be stopped in the entire stretch of Tamiraparani.
28. The Party in person Mr.R.Nallakannu, General Secretary of Tamil Nadu C.P.I.(M) Party would further contend that there is illegal sand quarrying in the entire stretch of Tamiraparani river and the river flow to Marutharani and Thoothukudi District and Manappadu drinking water scheme are affected. In so far as sand quarrying at Mukkani, Mr.R.Nallakannu would contend that Mukkani is at the mouth-river joining sea (estuary) and continuance of sand quarry in Mukkani would affect the sea shore. Drawing our attention to the Commission's Report, Mr.R.Nallakannu would contend that the entire sand quarrying operations in Tamiraparani river has to be suspended atleast for five years and in future to have a controlled sand quarrying monitoring committee has to be constituted.
29. The learned Advocate General Mr.P.S.Raman contended that power is delegated to the District Collector to grant permission to P.W.D. and only based upon the initial inspection report, permission was granted to P.W.D. for sand quarrying, who in turn, employ contractors and only for the purpose of supply of labourers and therefore, there is no question of illegal sand quarrying. The learned Advocate General made meticulous submissions contending that sand is needed for building, infrastructure and various other schemes of the Government and therefore a balance has to be struck between the issues of ecology and need for sand and that there has to be balancing approach for sustainable development. The learned Advocate General would fairly submit that to have effective monitoring over sand quarrying, a Monitoring Committee at State level for River Sand quarrying consisting of members of the judiciary, two Senior Government Officers, experts and also environmentalists could also be directed to be constituted. It was submitted that the Committee shall also be a forum to redress the grievance of public also.
30. In so far as the five disputed sites of sand quarrying in Tamiraparani river, the learned Advocate General submitted that the Government sand quarries are functioning in a skillful, scientific and systematic manner and not in an illegal manner. Laying emphasis on Part II of the Commission's report - report of Dr.N.Chandrasekar, the learned Advocate General would submit that having regard to the report of Dr.NChandrasekar, controlled sand quarrying could be permitted at Thirumalaikolundupuram and Mukkani. The learned Advocate General would urge that any complete ban of sand quarrying in Tamiraparani river would seriously impair the various welfare schemes of the Government in the southern Districts.
31. Onbehalf of the Respondents, even though it was contended that sand quarrying is done in a skillful, scientific and systematic manner and that there is no violation of TN MMC Rules and also the conditions of granting permission, and that no poclain or machinery are engaged for sand quarrying, sufficient materials were produced before the Court to show that the sand quarrying is being done by the machinery, Poclain, Hitachi. Commission also noticed machine marks indicating use of heavy machineries for sand quarrying. Absolutely no material was produced to show that as contemplated under Rule 36-A Sub-rule (6), permission was obtained for use of such machinery. In so far as Tholappanpannai, six months time granted for sand quarrying was already over. On behalf of the Respondents, learned Advocate General would contend that in Tholappanpannai the Government sand quarry is being operated by P.W.D. through reputed registered contractors as per the norms and the quarrying operation has not in any way affected the eco-system of the river, agricultural operations, drinking water and ground water level.
32. Even though it was contended that in Tholappanpannai, sand quarrying was done only as per the Rules, excessive sand quarrying and violation of the Rules affecting the natural river stream is amply demonstrated in the Commission's report and the photographs filed thereon. The learned Advocate General contended that the excessive quarrying was not at the instance of P.W.D. or the contractors employed by them, but only due to illegal sand quarrying. On the other hand, Mr.Nallakannu - party in person and the counsel appearing for the petitioners would vehemently contend that the excessive sand quarrying was done only at the instance of P.W.D. and the contractors. We do not propose to go into the factual dispute as to who was responsible for the excessive sand quarrying. Suffice it to note that there had been excessive sand quarrying in all the five sites involved.
33.We may usefully refer to a comparative view of the consolidated report (Part- I of Commission's report) and opinion of experts as to the physical status of five sites in Tamiraparani river (Parts-I and II), which is as under:
Place/site Commission Report Opinion of Opinion of Expert
- Part-I Expert Mr.M.Arunachalam Mr.N.Chandrasekar, - Part III Expert - Part - II Thirumalaiko- Quarrying is done River bed mining Instream extraction lunthupuram beyond stipulated may be allowed. Mining of bed material depth of 1 mtr and may be permitted is excess. Extent is far beyond in the remaining of mining was sanctioned distance. adjacent area of nearly 1.5 km length There are some Thirumalaikolunthu- and there are many midstream sand pile or puram not in existing mined pits with sand terrace, but if it excavated area. varying size.
is destroyed, momentum of New road to a height
water flow would be lost. of 1.25 - 1.5 m created
a hydraulic disconnectivity
between river channel and
the floodplain.
Nearly 10-12 sand mined
pits to a size of lake
are seen, which create
avulsion.
Tholappanpannai Quarrying is done beyond River bed mining Floodplain mining digging
stipulated depth of 1 mtr may be allowed. gravel pit lakes adjacent
and is far beyond Mining may be to rivers is common
sanctioned distance. continued activity found in this site
Some sand could be due to availability and the extent of mining
available on west, but of sand and possibility was nearly 1.8 km length
has to be checked whether for replenishment. and there are many mined
it is in this village pits with varying size. The
(or) Kongarayakurichi. mining pits are excavated
below the water table.
A 11 m wide road was
constructed with stones and
other materials brought from
outside the river eco-system.
Kizhipidagai Sand quarried to clay level Ceasing of mining The mining activities
Appancoil and excess depth should have activity in this area is about 868 m
been quarried. due to non-availability width 137 m along the banks
No much midstream sand of sand and possibility and terrace. Mined pits
deposit and palaeo sand for replenishment. are deeper than adjacent river
dunes substantially quarried. causing more river
avulsion. Heavy machineries were
used to mask mining activity,
which affects infiltration
mechanism of river bed. Mined pits
are with clay accumulation.
Mangalakurichi Sand quarried to clay level Ceasing of mining Mining activities extended
and excess depth should have activity due to upto 1.2 km in total in
been quarried. non-availability floodplain and instream.
No much midstream sand of sand and possibility Instream mining is regular
deposit and palaeo sand dunes for replenishment. feature and road was constructed
substantially quarried. inside river.
Mukkani Sand quarried to clay level River bed mining may Mining activities extend upto 800m
& excess depth should have be allowed. with a width of 152 m. Mined pits
been quarried. No much Mining may be continued are observed all along the banks
midstream sand deposit and duet o availability and stock piles are left with clay
palaeo sand dunes of sand and possibility as quality of sand is poor with more
substantially quarried. for replenishment. alluvium and clay.
General: General: General:
Monitory quarrying has Mining should be General: In all 5 sites,instream
to be done.In terms of prevented near the bank, mining,floodplain mining and
availability of sand and bridges, road, filter terrace mining affected natural
geological possibility for points, etc., river system and new system is
speedier replenishment, bank Removal of road replaced with unstable, strength, site must be found constructed inside river difficult to restore and it. and restore natural relatively unproductive Test boring should be done at condition of river. ecosystem and affects over all about 500 mtrs on upper and Ban of Mechanised health.
lower reaches of proposed mining by allowing Considering ecological imbalance quarrying site. only manual mining. of the eco-system created by sand mining and taking into account Mechanised quarry shall not large supply of water for be allowed. irrigation and water for drinking Scientific study of entire purpose, river system needs river system must be atleast 5 years to restore undertaken. and hence sand/gravel mining/ quarrying should not be carried out for 5 years in all 5 sites. Tholappanpannai:-
34. We may now elaborate upon the physical status of sand quarrying in the five sites individually. As pointed out earlier in Paragraph (26), in Tholappanpannai, as per the proceedings of the District Collector in Na.Ka.G.M.1/75/2010 dated 8.4.2010, permission was granted for sand quarrying over a site of 700m x 220m and for a depth of one meter. As seen from the Commission's report, even though permitted quarrying length is 700m, as per range finder/distance meter, it was noticed that quarrying has taken place for about 1.6 km on the west. The Commission opined that there is a possibility that quarrying could possibly stretch into adjacent Kongarayakurichi village.
Commission has opined that the quarrying of sand in this portion is not authorised. Commission has also noticed that a motorable way with an average width of 15 ft. right inside the river for a total distance close 1.6km was laid with stones and sand mixed with clay. The Commission has also noticed that after walking for + km, the motorable way divides towards north and re-joins the main pathway like a garland and within the loop created by this way lie quarrying sites, marked by five huge pits, where quarrying had taken place. Further, on the west, further beyond, two other huge pits were seen. As per the proceedings, permission was granted to quarry only upto depth of 1m. But the Commission noted that average depth of each pit varied from 4.5 feet to 5.8 ft. and due to water logging, depth variation could not be noticed or assessed inside each of the pits. In Part III of the Report - views of Dr.M.Arunachalam, it was noted that there are many mining pits with varying size and mining pits are excavated below the water table and hence during flooding the inundation will occur and a possible later migration of river into the mining lake and this will change the configuration of the floodplain. In Part III of the report, the expert has opined that floodplain mining will result in loss of habitats for fishes and floodplain mining also will cut off the original course of the river.
35. The photographs filed in Part III - report filed by Dr.Arunachalam would clearly show indiscriminate mining on floodplains; road formed inside the river and the stabilised road so formed affecting the water course. "Floodplain" means "(1) Area adjoining a body of water that becomes inundated during periods of over bank flooding that is given rigorous legal definition in regulatory programs. (2) Land beyond a stream channel that forms the perimeter for the maximum probability flood. (3) Strip of land bordering a stream that is formed by substrate deposition. (4) Deposit of alluvium that covers a valley flat from lateral erosion of meandering streams and rivers."
36. In Tholappanpannai, Commission noticed floodplain mining digging gravel pit lakes and mining pits were excavated below the water table. Stabilised roads were formed inside the floodplain. Deep excavated pits along the banks has affected riparian reserved forest. The experts felt that the combined effect of all these affect the eco-system of the river and flow of river water.
37. Kizhpidagai Appankovil - As per proceedings in G.O.No.1, G.M 1/74/2010, dated 8.3.2010 and G.M.1/264/10 dated 28.6.2010, permission was granted for quarrying 4,500 lorry loads equivalent to 9000 units of which portion is already quarried and the balance to be removed is 3,832 lorry loads. This is equal to 7664 units. The whole of the southern bank of the river bed was rich and huge sand dune, which the Experts opined as palaeo-deposit or very ancient deposit. The Commission noticed that quarrying was done along the southern bank and again a pool is formed inside the river bed that approximates to a rectangle. The Commission noticed that substantial portion of sand dunes along the western bank was already quarried. There were still some sand dunes about the middle of the river bed. All along the entire eastern edge, the Commission noted that the quarry sand dumped back into the quarried pit for a width of about 10 to 15 ft. and at places may be even 20 ft. and Commission noted that the refill was recent. The mined pits were found deeper than adjacent river and Commission opined that it may not be possible for the river to fill the quarried pits. In Kizhpidagai sand mining site, experts felt that heavy machines were used for sand quarrying. Commission noticed (i) deep excavated pits and (ii) road constructed in between mined pits. Experts were of the view that the machine marks clearly indicate use of heavy machinery in sand quarrying.
38. Mukkani - This is right at the estuary in the lower reach of the river and the area is essentially swampy. Experts opined that this is brackish water and quarrying has been done on substantial portion along the north and well into the bed. As in the case of Kizhpidagai Appankovil, there is palaeo deposit of sand in the belt, but the same was substantially removed. In his report, Commission referred to the communication of PWD Secretary in letter No.5381/1 Spl.2/2006-1 dated 27.2.2006 addressed to the Chief Engineer, Water Resources Organisation that no specific quarrying site is prescribed and unlike Kilpidagai, not even quantum be quarried is prescribed. Photographs filed in Part III of the report shows that sand is removed and the mined clay is left along the banks and inside the river with stock piles. Mined pits were also observed along the banks and stock piles are left with clay. Artificial bunds formed were meant for transportation of sand. Commission felt that by formation of such bund/road, flow of river water is obstructed.
39. Mangalakurichi - This is a delta of Tamiraparani river, maked by palaeo sand dunes along the banks. In fact, even well beyond the river, experts indicated presence of sand to fortify their study about the existence of ancient sand deposit in the area. The sanction for quarrying is based on the proceedings of the District Collector Rc.No.GM 1/252/2010 dated 22.06.2010 under which permission was granted for quarrying 900 lorry loads of sand for Tsunami rehabilitation works, and subsequently vide Rc.NO.GM 1/252/2010, dated 03.09.2010 for quarrying 590 lorry loads for construction of houses in Aathinathapuram under Periyar Remembrance Habitation scheme.
40. In Mangalakurichi village also, it was noticed that sand mining had taken place about the flood line and river bed on the east, which has altered the course of the river flow. The quarried sand and the artificial bund created by the piled up sand has pushed the river to mouth. Its effect is seen in the fact that a filter point close to the quarried site on the east is titled due to instability caused by water current of flowing river. Instream mining was a regular feature noticed in Mangalakurichi sand quarry site. A road was found constructed in the middle of the river for transportation of the sand. Thick riparian forest and left side river was found highly damaged due to heavy sand quarrying.
41. Thirumalaikolundupuram, Tirunelveli District is located in the middle reach of the river system. Going by the satellite generated image, the river is seen meandering (bending). The permitted quarry site as per the proceedings of the District Collector M2/34710/2007 dated 6.12.2007 is 700m x 270m. However, the Commission noted that the quarrying has been done for a distance of about 1.3 km, far excess of the permission granted. Approximate depth of the site quarried is about 6 to 8 ft., which according to the Commission, is only a random measurement. Due to water stagnation variation, it could not be measured, but opined that the demonstrated depth indicates quarrying had been done well beyond the same.
42. In Thirumalaikolundupuram also, instream floodplains were found highly damaged. Photographs of Thirumalaikolundupuram show that after removal of sand and gravel the river bed was exposed to finer sediments i.e., clay. Commission noticed nearly 10-12 sand mined pits to a size of a lake. The Commission felt that these lakes and pit mines were much deeper and wider than the normal river channel.
43. Violations of Rules and Conditions of quarry:- The two experts have prepared two separate reports as to the extent of sand quarrying and its impact. Based upon their two reports, a consolidated report has been prepared in Part I of the Commission's report and the Expert Commission has inter alia recorded that the quarrying had been done far beyond the sanctioned distance and depth. The conclusion of the Committee reads as under:
(a) Both in Thirumalaikolunthpurm and Tholappanpannai, quarrying had been done well beyond the stipulated depth of one meter. Even terms of distance, it is far beyond the sanctioned distance.
(b) In other places even though depth could not be measured, from the nature of clay content in the sand heap along the fringes of the quarried pit, it could be inferred, if not concluded with a degree of definiteness that sand has been quarried to the clay level. This again would indicate that excess depth should have been quarried.
(c) In the five sites involved, there prima facie is no adequate availability of river sand for further quarrying. This is based on the opinion expressed in (b), and also for the reason that even on physical observation, there is little to suggest that sand is available. In Thirumalaikolunthupuram, there are some mid-stream sand pile or sand-terrace but if that is destroyed then the barrier nature has created to arrest the momentum of water flow would be lost. In Tholappanpannai, there could be some availability of sand on the west, but it must first be checked whether it is in this village or in Kongarayakurichi village. In Kilpidagai Appancoil, Mukkani and Mangalakurichi, which are in the last stages of the river, even geologically, there could not be much mid stream sand deposit and the palaeo sand dunes have been substantially quarried.
(d) The quarrying has created eco-imbalance, and the same is detailed and justified in Part III of this Report by Prof.M.Arunachalam."
44. As elaborated earlier, in all the five sites and in addition, one in Siruthandanaloor adjacent to Mangalakurichi, the following features were noticed by the Commission showing unscientific sand quarrying, use of heavy machineries and thereby affecting free flow of water and altering the eco-system of the river:
"(a) In all the sites, barring to an extent in Mangalakurichi, huge pits are dug in the process of quarrying right in the middle of the river bed, or/and including the banks. They look not like places where surface quarrying had taken place, but on the contrary appear like excavated sites of archaeological exploration.
(b) All along the fringes of these pits, huge pile of sand blended with clay is seen. In many places, clay or alluvium is seen as the upper cover the sand pile.
(c) In all the pits are characterised by water stagnation. They are artificial pool created inside the river system.
(d) Pathways of permanent nature are seen made in at least two of the sites namely Thirumalaikolunthupuram and Tholappanpannai.
(e) Quarried site definitely obstruct free flow of water and is an impediment to its general course.
(f) All the above combined has altered the eco-system in all the five sites."
45. Balancing the conflicting public interest for and against sand mining in Part I of its report, the experts felt that in terms of long term ecological repair that quarrying had caused, no further quarrying shall be permitted. In terms of eco-system of the river and also to rehabilitate the quarried sites, Commission expressed its opinion as under:
"(a) If public interest involved in eco-imbalance is taken as the sole determining criterion to evaluate future quarrying of river sand in the five sites involved, then in terms of long term ecological repair that quarrying had caused, no further quarrying shall be permitted. (part III of the Report may be referred to.)
(b) The Commission is of the unanimous opinion that since the sand sample examined in the sand pile along the quarried pits do not indicate availability of further quarrying in the those sites, they must be directed to be re-dumped or re-filled in the pits.
(c) All permanent pathways laid must be levelled to let the river assume its normal course without any artificial obstruction to the extent possible under prevailing circumstances.
(d) Should river sand be quarried in future, it is mandatory to have the same monitored efficiently. (i) Firstly, the site must found fit for quarrying not in terms of just availability of sand, but in terms of geological possibility for speedier replenishment, bank strength and other parameters. (ii) Test boring should be done at the selected site and must be clarified with reference site to be selected at about 500 m on the upper and lower reaches of the proposed quarrying site.
(e) Mechanised quarry shall never be allowed, for, then the rate of exploitation of river sand would be disproportionately high as compared to rate of replenishment of sand.
(f) A scientific study of the entire river system must be undertaken with all scientific parameters."
46. Earlier, a batch of writ petitions in W.P.(MD) Nos.7917 Of 2006 etc., were filed forbearing the respondents from continuing the sand mining on the banks of the river Tamiraparani in various villages by bringing to the notice of the Court about the indiscriminate sand quarrying. In the said batch of writ petitions also, Dr.K.Murugesan, an Environmental Expert in Centre for Environmental Sciences was asked to inspect the area and after inspecting the area, he submitted his report. Based upon his report, by order dated 9.1.2007 in the above said batch of writ petitions, the Bench has directed the authorities that in the interest of public to have a watch on the mining operations conducted by the private parties as per the lease granted in favour of them by directly following the measures suggested by the experts and the conditions laid down in the Rules. It was further directed not to use any machinery for excavating the sand from the river bed.
47. Inspite of concern and objections raised and directions issued by the Court, it is very unfortunate that the PWD has not cared to see that the sand quarrying is done as per TN MMC Rules and as per the conditions. There was no scientific mining and the authorities seldom cared about the impact on the eco-system of the river by such unscientific mining. Likewise, absolutely there seems to be no monitoring by the District Administration as to whether TN MMC Rules and conditions of sand quarrying were complied with or not. The Respondents were emboldened to file counter as if the sand quarrying work was executed only as per the existing rules and conditions of permission. In the counter affidavit filed in W.P.No.11182 of 2010, it was averred that Pocline machine is only used at necessary stage to retrieve the loaded lorry, which is caught in sand, clearing the jungles and de-silting the top soil of river bed. Photographs and other materials were produced before the Court that number of Poclains and machines were used for sand quarrying. As pointed out earlier, in Kizhpidagai Appankovil and other places experts noted machine marks clearly indicating use of machinery in sand quarrying.
48. As pointed out earlier, Commission was of the unanimous opinion that sand quarrying has been done far beyond the extent for which the permission was granted. Inspite of the clear embargo under Rule 36-A Sub-rule (6) of TN MMC Rules that there should be no quarrying by use of machines, as pointed out by the Commission, heavy machines were used for quarrying. As contemplated under Rule 36-A Sub-rule (6), no permission seems to have been obtained from the concerned authorities for sand quarrying with use of machineries.
49. As pointed out earlier, in D.O.Letter No.9693/I Spl.2/2005-1 dated 18.3.2005, the Secretary to Government, Public Works Department has directed the Chief Engineer, Madurai Region, Water Resources Organisation, P.W.D. that sand quarrying is to be carried out in skillful, scientific and systematic manner and that pits shall not be more than one metre in depth. As it was noticed by the experts that everywhere the sand quarrying was done more than one meter and in number of places it was done beyond 10 feet depth and in some places, the depth of 10 feet. The Commission opined that the mined pits and ultimately pools/lakes created inside the river stream and they are characterised by water stagnation. The unscientific sand quarrying, use of heavy machineries and violation of the conditions clearly show that it is a case of abuse of permission granted by the District Administration for sand quarrying. P.W.D. contends that private contractors were brought in only for supply of labour contractors. We are not able to countenance the said stand of P.W.D. We are afraid that either with or without the connivance of the Public Works Department, there was indiscriminate and heavy sand quarrying beyond the extent for which the permission was granted resultantly causing devastation of the river.
50. Impact of Excessive sand mining: - Sand quarrying in rivers and watersheds are killing the rivers. Such activities lead to bank erosion, lowering of water table and create several environmental problems. Impact of sand mining can be broadly classified into three categories - (i) physical; (ii) water quality and (iii) ecological.
51. Indiscriminate excessive sand mining causes degradation of rivers and lowers stream bottom, which may lead to bank erosion. Excessive instream sand- and-gravel mining causes the degradation of rivers. Instream mining lowers the stream bottom, which may lead to bank erosion. Depletion of sand in the stream bed and along coastal areas causes the deepening of rivers and estuaries, and the enlargement of river mouths and coastal inlets. It may also lead to saline- water intrusion from the nearby sea. Excessive instream sand mining is a threat to bridges, river banks and nearby structures. Sand mining also affects the adjoining groundwater system and the uses that local people make of the river.
52. Instream sand mining results in the destruction of aquatic and riparian habitat through large changes in the channel morphology. Impacts include bed degradation, bed coarsening, lowered water tables near the streambed, and channel instability. These physical impacts cause degradation of riparian and aquatic biota and may lead to the undermining of bridges and other structures. Continued extraction may also cause the entire streambed to degrade to the depth of excavation
53. Both the experts have elaborated as to how the indiscriminate sand mining has created eco imbalance. Dr.Arunachalam, Head of Department of Centre for Environmental studies has clearly pointed out that in Thirumalaikolunthupuram, 10 - 12 sand mined pits to a size of a lake were seen and they would create avulsion. In so far as construction of roads, formation of roads inside the river, Dr.Arunachalam observed that construction of road and the gravel pit mines disconnect the link with nearby river in the adjacent site and the loss of hydraulic connectivity may result in changing water table elevations. He has also opined that because of the sand mine pits created the river may be reoriented during rainy season causing more physical damage and to the river dynamics.
54. Dr.N.Chandra Sekar, though has made a different observation as to the availability of sand in Thirumalaikoluthupuram, Tholappanpannai and Mukkani, he has also observed that extraction of bed material is in excess of replenishment particularly in Appankovil and Mangalakurichi. He has also found that degradation has depleted the entire depth of sand material exposing other substrates i.e., clay deposits in Thollappanpannai, Thirumalaikolunthupuram, Kilpadagai Appankovil and Mangalakurichi villages. Groundwater level could not be confirmed with accuracy in the inspection as a result of water in the flood plain and river bed and the pits. Both the experts are of the same view that the sand quarrying was beyond the permission granted.
55. Riparian Habitat, Flora and Fauna:- Instream mining can have other costly effects beyond the immediate mine sites. Degraded stream habitats result in loss of fisheries productivity, biodiversity, and recreational potential. Severely degraded channels may lower land and aesthetic values. The most important effects of instream sand mining on aquatic habitats are bed degradation and sedimentation, which can have substantial negative effects on aquatic life.
56. Water Quality:- Instream sand mining activities will have an impact upon the river's water quality. Increased riverbed and bank erosion increases suspended solids in the water at the excavation site and downstream. Apart from threatening bridges, sand mining transforms the riverbeds into large and deep pits; as a result, the groundwater table drops leaving the drinking water wells on the embankments of these rivers dry. Bed degradation from instream mining lowers the elevation of stream flow and the floodplain water table which in turn can eliminate water table-dependant woody vegetation in riparian areas.
57. At this juncture, it is worthwhile to refer to the introductory remarks of the Commission's report as to how the river water painstakingly brings in particles of sand along its flow and whether man has conducted himself wisely and sensibly with the consciousness of tomorrow's India in utilization of the nature's bounty. "War for Water is not a movement but a National Commitment. Nature has its mechanism for water generation, and in the process has also developed its own structure for its storage alongside. River water painstakingly and unrelentingly brings in particles of sand along its flow, and patiently accumulates it over generations. River sand is not just molecules of silica, but a bed of huge sponge that nature in its endless wisdom has developed to retain and distribute water in order the lives it creates do not perish. But War for Water need not necessarily be interpreted as war against river sand, if only the latter is used wisely and sensibly. Should river sand be diverted for purposes which human intelligence dictates, but that for which Nature in its wisdom has not provided for, then it has to be so done with the humility of a seeker. Nature knows only two languages: Peace and fury, and when it speaks either of them it essentially remains a passive observer as it philosophically disengages itself from the emotions of humankind. If life on this planet destroys itself, commits hara-kiri, Nature mercilessly watches. But, it does throw endless opportunities for man to mend his ways of dealing with it, but man seems to believe tomorrow does not exist and there is no judgment day for him. And Nature watches and waits. Is man to-day willing to meander, as the river does in its course, towards sensible living, and intelligent utilization of nature's bounty? And in the five sand quarry of contextual relevance, has he conducted himself wisely and sensibly with the consciousness of tomorrow's India".
58. Sustainable development: - Of course, sand and gravel have been used in the construction of roads and buildings. Demands for sand and gravel continues to increase. P.W.D., which has been entrusted on the sand quarrying must work to ensure that sand mining is conducted in a responsible manner. Excessive sand quarrying has resulted in narrowing and deepening river systems. Formation of road in the middle of the river affecting flow of water and increasing vehicular traffic carrying sand and gravel to urban centres affecting the source of drinking water and agriculture, certainly the local communities have large to complain about.
59. As held by the Supreme Court in the case of M.C.MEHTA VS. KAMAL NATH, ((1997) 1 SCC 388), it is a classical struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibility, who under the pressures of the changing needs of an increasingly complex society find it necessary to encroach to some extent upon open lands considered inviolate to change. The Supreme Court held as follows:
"The issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. ...... The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources."
60. Learned counsel Mr.Ajmal Khan contended that the State holds the natural resources in public trust and inter generational equity requires protection of natural resources by placing reliance upon MEHTA, M.C. VS. KAMAL NATH, ((1997) 2 SCC 388 - Paras 24 to 29 and 34; FOMENTO RESORTS & HOTELS LTD. VS. MINGUEL MARTINS, ((2009) 3 SCC 571) -Paras 51 to 59, 61, 63 and 64 and KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD VS. C.KENCHAPPA, (2006) 6 SCC 371.
61. Even while the permission is granted for sand quarrying, the dynamics of the river has to be maintained. In fact, the object of entrusting sand quarrying with the P.W.D. itself was to put an end to unsustainable over exploitation of sand in the State. The major observations of the High Level Committee constituted are regarding the creation of pools of water stagnation in the river bed and impairing the water flow downstream, which in turn, will have grave consequences. The pits dug for sand quarrying have created several pit lakes greatly affecting the flow of water. The usage of machinery like poclain for removal of sand has caused river bed erosion, collapse of banks, damage to infrastructure like bridges, transmission power lines and drinking water system. In their report, Dr.Arunachalam has opined that in terms of long term ecological repair in the above quarrying sites, no further quarrying shall be permitted. Based on the assessment on the physical status of the five sand quarrying sites in Tamiraparani river - Thirumalaikolunthupuram in Tirunelveli District, Thozhappanpannai, Kizhpidagai Appankovil, Mukkani and Mangalakurichi in Thoothukudi District and considering the eco-imbalance of the eco system created by sand mining and taking into account the large supply of water for irrigation and for drinking purposes, Dr.Arunachalam has emphasized that "the river system needs at least five years to restore and hence sand/gravel mining/quarrying should not be carried out for the next 5 years."
62. Per contra, Dr.Chandra Sekar has opined that controlled sand mining may be continued in Thollappanpannai and Mukkani villages due to the availability of sand and possibility for replenishment. In so far as Thirumalikolunthupuram, Dr.Chandrasekar has opined that in the existing area even though sand is not available but controlled mining may be permitted in the remaining adjacent area of Thirumalaikolunthupuram.
63. In a catena of decisions, the Supreme Court has held that natural resources are the assets of the entire nation. It is the obligation of all concerned, including the Union Government and State Governments to conserve and not waste these resources. Any threat to the ecology can lead to violation of the right of enjoyment of healthy life guaranteed under Article 21, which is required to be protected. (vide T.N.GODAVARMAN THIRUMULPAD VS. UNION OF INDIA ((2006) 1 SCC 1).
64. Over the years, the Supreme Court tried to balance the mining operations vis--vis environmental protection. In VELLORE CITIZENS' WELFARE FORUM V. UNION OF INDIA ((1996) 5 SCC 647 and M.C.MEHTA VS. UNION OF INDIA, ((2002) 4 SCC 356), the Supreme Court observed that the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of "sustainable development". Considering the environmental clearance given for Tehri dam, the Supreme Court in the case of N.D.JAYAL AND ANOTHER VS. UNION OF INDIA AND OTHERS, ((2004) 9 SCC 362) has observed that the power under Environmental Protection Act cannot be treated as a power simplicitor, but is a power coupled with duty and held as under:
25. Therefore, the adherence to sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand, right to development is also one. Here the right to "sustainable development" cannot be singled out. Therefore, the concept of "sustainable development" is to be treated as an integral part of "life" under Article 21.
Weighty concepts like intergenerational equity (State of H.P. v. Ganesh Wood Products (1995) 6 SCC 363), public trust doctrine (M.C. Mehta v. Kamal Nath (1997) 1 SCC 388) and precautionary principle (Vellore Citizens (1996) 5 SCC
647), which we declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development.
26. To ensure sustainable development is one of the goals of the Environment (Protection) Act, 1986 (for short "the Act") and this is quite necessary to guarantee the "right to life" under Article 21. If the Act is not armed with the powers to ensure sustainable development, it will become a barren shell. In other words, sustainable development is one of the means to achieve the object and purpose of the Act as well as the protection of "life" under Article 21. Acknowledgment of this principle will breathe new life into our environmental jurisprudence and constitutional resolve. Sustainable development could be achieved only by strict compliance with the directions under the Act. The object and purpose of the Act: "to provide for the protection and improvement of environment" could only be achieved by ensuring strict compliance with its directions. The authorities concerned by exercising their powers under the Act will have to ensure the acquiescence of sustainable development. Therefore, the directions or conditions put forward by the Act need to be strictly complied with. Thus the power under the Act cannot be treated as a power simpliciter, but it is a power coupled with duty. It is the duty of the State to make sure the fulfilment of conditions or direction under the Act. Without strict compliance, right to environment under Article 21 could not be guaranteed and the purpose of the Act will also be defeated. The commitment to the conditions thereof is an obligation both under Article 21 and under the Act. The conditions glued to the environmental clearance for the Tehri Dam Project given by the Ministry of Environment vide its order dated 19-7-1990 has to be viewed from this perspective."
65. In the case of INTELLECTUALS FORUM, TIRUPATHI VS. STATE OF A.P. AND OTHERS, ((2006) 3 SCC 549 = 2006(2) CTC 71)), the Supreme Court held as under:
67. The responsibility of the State to protect the environment is now a well-accepted notion in all countries. It is this notion that, in international law, gave rise to the principle of "State responsibility" for pollution emanating within one's own territories (Corfu Channel case, ICJ Reports (1949)
4). This responsibility is clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to which India was a party. The relevant clause of this declaration in the present context is para 2, which states:
"The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate."
......
70. This Court in Essar Oil Ltd. v. Halar Utkarsh Samiti, 2004 (2) SCC 392 was pleased to expound on this. Their Lordships held:
"27. This, therefore, is the [sole] aim, namely, to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in the population together with consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, the filling up of lakes and pollution of water resources and the very air which we breathe. However, there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other."
71. A similar view was taken by this Court in Indian Council for Enviro- Legal Action v. Union of India, 1996 (5) SCC 281, para 31) where Their Lordships said:
"While economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation; at the same time, the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment."
72. The concept of sustainable development also finds support in the decisions of this Court in M.C. Mehta v. Union of India (Taj Trapezium case), 1997(2) SCC 653, State of H.P. v. Ganesh Wood Products, 1995(3) SCC 363 and Narmada Bachao Andolan v. Union of India, 2002(10) SCC 664.
66. In the case of T.S.SENTHIL KUMAR VS. THE GOVERNMENT OF TAMIL NADU, (2010 Writ Law Reporter 113), the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act was challenged, wherein, this Court has dealt with the importance of conservation of Water courses. In L.Krishnan v. State of Tamil Nadu, 2005(4) CTC 1 (DB) = AIR 2005 Madras 311, this Court has held that the State must take definite measures to restore the Water storage tanks, ponds and lakes and that it is imperative that such natural resources must be maintained by the State Government. When that is so, it is all the more the duty of the State and the authorities like the Housing Board not to be parties to destruction of such natural resources.
Doctrine of Public Trust:
67. We may briefly refer to the public trust doctrine and its applicability to the river sand under consideration. In T.N.GODAVARMAN THIRUMULPAD VS. UNION OF INDIA ((2006) 1 SCC 1), the Supreme Court held that we are trustees of natural resources which belong to all including the future generation as well. The public trust doctrine has to be used to protect the right of this as also the future generation.
68. In STATE OF TAMIL NADU V. HIND STONE ((1981) 2 SCC 205), it has been held as follows:
"6. Rivers, Forests, Minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation..."
Thus, the Hon'ble Supreme Court has evolved the principle of doctrine of public trust. As of the said theory, the natural resources are not only meant for the present generation but should be preserved for the posterity. The Government and the present generation acts as a trustees for the future generation. The said principle was also followed by the Hon'ble Supreme Court in (2006) 1 SCC 1 T.N.GODAVARMAN THIRUMULPAD V. UNION OF INDIA, wherein the Supreme Court was pleased to hold that the natural resources are the assets of the entire nation, that is the obligation of all concerned including the Union Government and the State Government.
69. In T.S.Senthil Kumar case, this Court had also referred to Ramsar Convention which requires the conservation and wise use of wet lands. Sustainable Development is that kind of a development "which meets the needs of the present without compromising the ability of future generations to meet their own needs". Persistent developmental activities ignoring the protection of natural resources cause irreparable damage. Section 12 of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 prohibits alienation of tank poramboke lands otherwise than in public interest and in Paragraph No.20(c) and (d) of T.S.Senthil Kumar's case cited supra, it was held thus:
"(c) As already stated, the State will ensure that alienation of tank Poramboke lands, citing public interest, shall not be made under Section 12 of the Act. The meaning and weight of the words "public interest" shall be implicitly borne in mind.
(d) The State holds all the Water bodies in Public Trust for the welfare of this generation and all the succeeding generations and, therefore, protecting Water bodies must be given as much weightage, if not more as allowing house-
sites or other buildings to come up on such tanks or tank poramboke lands, and Water charged lands...."
70. State to act in public trust:- The learned Advocate General submitted that for construction of Samathuvapuram to provide housing to the needy and for construction of other infrastructure, sand is required and complete ban of sand mining would affect the welfare schemes of the Government to be carried out in the southern districts. Of course, housing is one of the basic needs next to food and clothing. Likewise, infrastructure is also an essential development. But it must be remembered that Tamiraparani river and other rivers are major source of drinking water for the people, agriculture and also for the industries set up along the banks, hydropower. Protection of the rivers is essential for maintenance of ecology. Even though sand mining has been regulated by entrusting it to P.W.D.,we find that there is hardly any environmental impact assessment;no strict implementation of TN MMC Rules and the instructions by the Government.
71. As discussed earlier, sand mining causes erosion, affecting riparian and aquatic habitat. Excessive sand mining generates excessive vehicle traffic. As noted by the Commission, pucca roads have been formed inside the river affecting free flow of water negatively impairing the river's eco-system. Such excessive sand mining will also affect the impact of river's water quality.
72. Sand Quarrying in Tamiraparani River - Whether could be allowed to be continued:- The learned Advocate General contended that sand is needed for building and for other infrastructural purposes and for implementation of various welfare schemes of the Government like providing free houses and complete ban for sand quarrying would affect the implementation of welfare schemes of the Government and also supply of sand for infrastructural and other construction activities. Learned Advocate General would further contend that as per the well settled position of sustainable development, controlled mining with strict monitoring could be ordered in three sites - Mukkani, Thollappanpannai and the adjacent area in Thirumalikolunthupuram.
73. Drawing the Court's attention to the report of Dr.Chandra Sekar, the learned Advocate General would submit that in Thirumalaikolunthupuram, adjacent part of the area has permissible quantum of sand is visualized in the field and therefore mining can be continued after identifying the area by the Inspecting Team. Likewise, based on the report of Dr.Chandra Sekar, the learned Advocate General would submit that controlled sand quarry may be continued in Tholappanpannai and Mukkani.
74. In response, Mr.R.Nallakannu, party-in-person and the counsels appearing for the writ petitioners laying emphasis upon Dr.M.Arunachalam's Report would contend that permitting P.W.D. to continue with the sand quarrying would seriously affect the river flow to Marudhurani and the water course to Tuticorin District and also Manappadu drinking water scheme. It was further argued that sand quarrying has been done as if excavation was being done and if any further sand quarrying is permitted, it would affect river flow affecting irrigation for agriculture, drinking water source apart from affecting the sea shore and the coastal lines.
75. As discussed earlier, there was excessive unscientific sand quarrying beyond the sanctioned limit, which has affected the flow of water and river's eco-system. As pointed out in the comparative table, the experts have unanimously opined that in Kizhpadigai Appankovil and Mangalakurichi, sand is not available. The Advocate General himself submitted that sand quarrying has already been stopped in those two sites. In so far as Thirumalaikolunthupuram, in Part-II of report, Dr.N.Chandrasekar opined that in the remaining adjacent area, mining may be permitted. Insofar as Tholappanpannai and Mukkani, Dr.N.Chandrasekar has opined that controlled mining may be continued due to availability of sand. Per contra, Dr.M.Arunachalam opined that considering the ecological imbalance of the eco-system created by sand mining and taking into account large supply of water for irrigation and water for drinking purposes, the river system needs atleast five years to restore and hence sand mining/quarrying should not be carried out for five years in all five sites.
76. As seen from Part-I of the consolidated report, in all the five sites, quarrying has been done far beyond the permissible limits crating ecological imbalance of the river system. Having regard to the imbalance caused, we deem it appropriate to accept the report of Dr.M.Arunachalam and taking into account the large supply of water for irrigation and water for drinking purposes, sand mining/quarrying should not be carried out for five years in all the five sites.
77. Of course sand is essential for construction of roads and buildings. At the same time, natural resources are to be conserved and a balance has to be struck between the requirement and the preservation of rivers, especially, a unique river like Tamiraparani. In our considered view, Tamiraparani river has to be allowed to replenish itself to undo the imbalance caused as per the opinion of Dr.Arunachalam and we hold that sand mining/quarrying shall not be carried out for five years.
78. Sand quarrying in Tamiraparani river - Whether could be allowed to be continued- Macro View:-
As discussed earlier, on number of occasions, excessive sand quarrying in Tamiraparani river was brought to the notice of this Court expressing concern over illegal/excessive/unscientific quarrying inter alia issued various directions. Either with or without the connivance of P.W.D., and local authority, quarrying of sand is carried on extensive scale beyond the limits of permission. The Court has been repeatedly issuing directions to quarry sand in accordance with the TN MMC Rules and the conditions imposed for sand quarrying. Inspite of such directions, the excessive and illegal sand quarrying appears to have continued devastating the river. Excessive instream mining and huge pits created artificial pools/lakes affecting the water course. It has affected the river banks and riparian forests and aquatic habitats. Excessive sand mining has greatly affected the river. Now the position has become worsened. In these circumstances, this Court has now decided not just to focus on individual sites of sand quarrying but have a larger view of the matter, particularly, while suspending the operation of sand quarrying in the entire stretch of Tamiraparani river.
79. As we have discussed earlier, there has been excessive unscientific sand quarrying, which is substantiated by the Commission's Report and also the photographs filed in the Report. In such extraordinary situation, accepting the opinion of Dr.Arunachalam, having regard to large supply of water for irrigation and water for drinking purpose, we hold that sand quarrying/mining should not be carried out in the entire stretch of Tamiraparani river for a period of five years.
80. Rehabilitation of Tamiraparani river: -
Even though excessive quarrying has been done in an unscientific and unskillful manner, no measures were taken to rehabilitate the area. The Commission has suggested that the sand piles along the quarried pits must be directed to be re-dumped or re-filled in pits. All permanent pathways laid must be levelled to let the river assume its normal course without any artificial obstruction to the extent possible under prevailing circumstances. The learned Advocate General fairly submitted that those two recommendations of the Commission would be implemented at the earliest. These two suggestions of the Commission are to be carried out within two months from the date of this order and report has to be filed before this Court.
81. Sand quarrying in all the rivers in the State of Tamil Nadu - Macro View:- Though we have been considering the excessive sand quarrying in Tamiraparani river, it is relevant to note that every now and then writ petitions are being filed alleging violations of TN MMC Rules in sand quarrying and also excessive sand quarrying. Sand mining lease is increasingly becoming an environmental issue. Environmentalists have raised public awareness of illegal sand mining. Having regard to the larger public interest in sand mining, we have decided not just to focus on Tamiraparani river alone, but on all the rivers in the State of Tamil Nadu.
82. The Public Works Department engage the assistance of Labour Contractors. The labour contractors either with or without the connivance of Public Works Department and local authority carry out indiscriminate sand quarrying. Scientific quarrying is not employed. What was sought to be prevented by G.O.Ms.No.95 dated 1.10.2003 is now worsened. The learned Advocate General fairly submitted that a monitoring committee could be constituted for monitoring the sand quarrying in all the rivers in the State of Tamil Nadu. In this regard, the learned Advocate General has also filed a draft scheme pertaining to the constitution of the monitoring committee and its powers and functioning. Therefore, to have effective monitoring not only over Tamiraparani river, but in respect of all the rivers in the State of Tamil Nadu, it is appropriate to issue directions for the scientific sand quarrying in respect of all the rivers in accordance with TN MMC Rules and also to constitute a monitoring committee for all the rivers in the State of Tamil Nadu.
83. As pointed out earlier, the District Collectors are the competent authorities to grant permission to the Public Works Department to quarry sand. On proposal made by P.W.D., team of experts comprising of officials from Geology and Mining, revenue officials, Pollution Control Board, Water Board (TWAD), P.W.D. officials and also P.W.D.(W.R.O), inspect the site and submit its report to the District Collector. Upon consideration of the report of the inspecting team and the proposal made by the P.W.D., the District Collector grants permission for sand quarrying.
84. In future, while inspecting area identified for sand quarrying, the inspecting team shall prepare its report focusing on environmental issues like impacts of sand mining - (i) physical; (ii) water quality and (iii) ecological, stability of structures, riparian habitat, flora and fauna. The inspecting team shall prepare a sand budget depending upon the topography, hydrology and hydrologic information and express its views as to the amount of sand that could be removed from the area without causing undue erosion or degradation either at the site or at a nearby location, upstream or downstream. The District Collector shall consider the report of inspecting team and keeping in view the impact on environmental issues, shall grant permission specifying the exact area of sand quarry and the quantity to be carried, manner of quarrying, etc.,
85. In the result, the Writ Petitions are disposed of with the following directions:-
Directions in respect of Tamiraparani river:
(a) It is directed that there shall be no sand mining/quarrying for five years from today in the entire stretch of Tamiraparani river including the quarry sites at Thirumalaikolunthupuram, Tholappanpanai, Kilpidagai Appankovil, Mukkani and Mangalakurichi.
(b) If the District Collector of Tirunelveli or Tuticorin is of the view that the sand from the Tamiraparani river is absolutely required before the expiry of five years from today for meeting the demands for projects relating to the public utility, then, the respective District Collectors shall identify the place where the sand is available for quarrying, make personal inspection and satisfy the legal formalities, as per the Tamil Nadu Minor and Mineral Concession Rules, 1959. The District Collectors of Tirunelveli and Thoothukudi shall also obtain the views of the respective inspecting team and offer identification of the places for sand quarrying and fixing the requirement, and then make a report to the Monitoring Committee constituted under this order.
When such report is submitted by the District Collectors of Tirunelveli and Thootnhhukudi, the Monitoring Committee shall examine the feasibility of allowing such quarrying. The Monitoring Committee shall inspect the area so identified and examine the environmental issues like impact of sand mining (I) physical, (ii) water quality; and (iii) ecological and other relevant aspects and the Monitoring Committee shall also examine the requirement and also the quantity required.
(c) If the Committee opined that the quarrying can be permitted in any particular site, the District Collector may grant permission to the Public Works Department. If any such permission is granted by either the District Collector, Tirunelveli or Tuticorin for mining/quarrying, as mentioned above, then the Monitoring Committee shall closely monitor the mining/quarrying so as to ensure that there is no illegal mining/quarrying or any violation of the mining norms. If the Committee opines against the proposal for granting permission for quarrying, the District Collector may approach this Court.
(d) Rehabilitation: The sand piled along the quarried pits in the five sand quarry sites - Thirumalaikolunthupuram, Tholappanpannai, Kizhpidagaii Appankovil, Mukkani and Mangalakurichi are directed to be re-dumped or re-filled in the pits. All permanent pathways laid in the above said five sites must be levelled to let the river assume its normal course without any artificial obstruction to the extent possible under prevailing circumstances. These two suggestions of the Commission are to be carried out within two months from the date of this order and report has to be filed before this Court within ten weeks. The Registrar- Judicial, Madurai shall bring to the notice of the Court about the compliance of the report. In case the report is not filed within the time granted, the same shall also be brought to the notice of the Court.
(e) In the entire stretch of Tamiraparani, there has to be a strict vigil over illegal quarrying of sand by private per;sons. In so far as illegal quarrying by private persons, the District Collector of Tirunelveli and Thoothukudi in consultation with the Superintendents of Police, P.W.D., and Department of Geology and Mining, shall constitute a special team to check illegal sand quarrying and strictly implement the provisions of Environmental Protection Act.
86. General directions for sand quarrying operations in all the rivers in the State of Tamil Nadu:-
(a) As pointed out earlier, the District Collectors are the competent authorities to grant permission to the Public Works Department to quarry sand.
On proposal made by P.W.D., team of experts comprising of officials from Geology and Mining, revenue officials, Pollution Control Board, Water Board (TWAD), P.W.D. officials and also P.W.D.(W.R.O), inspect the site and submit its preliminary report to the District Collector. Upon consideration of the report of the inspecting team and the proposal made by the P.W.D., the District Collector grants permission for sand quarrying.
(b) In future, while inspecting the area identified for sand quarrying, the inspecting team shall prepare its report focusing on environmental issues like impacts of sand mining - (i) physical; (ii) water quality and (iii) ecological, stability of structures, riparian habitat, flora and fauna. The inspecting team shall prepare a sand budget depending upon the topography, hydrology and hydrologic information and express its views as to the area in which the sand quarry has to be done, amount of sand that could be removed from the area without causing undue erosion or degradation either at the site or at a nearby location, upstream or downstream.
(c) The District Collector shall consider the report of inspecting team and keeping in view the impact on environmental issues, shall grant permission specifying the exact area of sand quarry and the quantity to be carried, manner of quarrying, etc.,
(d) The Public Works Department engage the assistance of Labour Contractors. The labour contractors either with or without the connivance of Public Works Department and local authority carry out indiscriminate sand quarrying. Scientific quarrying is not employed. What was sought to be prevented by G.O.Ms.No.95 dated 1.10.2003 is now worsened. The quarrying operations will be conducted by the Public Works Department directly. The PWD may however engage the assistance of labour contracts which shall all be given through Public tender as permitted by the Hon'ble Madras High Court vide judgment of Division Bench of this Court dated 03.08.2005 in W.P.No.12934 of 2005 etc.
(e) To have effective monitoring not only over Tamiraparani river, it is appropriate to issue directions for all the rivers for the scientific sand quarrying in accordance with TN MMC Rules and also to constitute a monitoring committee for all the rivers in the State of Tamil Nadu. The quarrying operation itself shall be strictly restricted to areas, which have already been or in future shall be specifically earmarked by the District Collector in consultation with the PWD. All quarrying operation of river sand shall be only done strictly in accordance with Rule 36-A of the TN MMC Rules, 1959 as amended by G.O.Ms.95 Industries Department dated 1.10.2003, which has come into effect from 02.10.2003 and also other instructions issued by the Government and by this Court in these Writ Petitions.
(f) No poclain or other heavy machinery shall be used for sand quarrying. It would be in order of the Government of Tamil Nadu exercises its discretion in bringing the necessary amendment to Rule 36-A Sub-Rule (6) of TN MMC Rules, which permits use of machinery with permission of authorised officer. We hope that the State will put in place the necessary amendment within six months to prevent use of machinery in sand quarrying.
(g) The loading contractors can load sand only on the direction of the PWD authorities and their registration number and name of lorry driver shall be mentioned in the receipt issued by the authorities. No sand lorry shall be despatched without mentioning the destination. Mention of place of destination in the receipts is mandatory. The accounting procedure, receipts for issuance and the quantum of load put up by the lorries should have accuracy and nowhere deviation to procedure/Rule is to be permitted.
(h) Regarding the actual quarrying operations, the same shall be strictly in accordance with the TN MMC Rules and also as per instructions issued by the Secretary, PWD dated 18.03.2005 communicated to all Superintending Engineers and Chief Engineers and the Chief Engineers of Water Resource Organisations of the PWD and other directions issued by the authorities and also by this Court.
87. Constitution of State Level Monitoring Committee for river sand and other sand quarrying:
(a) There shall be a State level monitoring Committee constituted for the purpose of monitoring the adherence of the directions issued in this order and the TN MMC Rules.
(b) State Level monitoring committee for river and other sand quarrying shall be constituted comprising of the following persons:
(i) a Retired Judge of the Madras High Court shall be the Chairman;
(ii) One Member Secretary shall be appointed in the Head Office; and
(iii) One Retired District Judge for each Zone [Chennai Zone; Tirunelveli Zone; Coimbatore Zone; Tiruchi Zone].
(iv) Expert in Water Resources Management; and
(v) Environmentalist shall be the members.
We hope that the State will issue necessary notification constituting the Committee preferably within a period of six months from today. While issuing notification, the Government shall also demarcate the areas for all the four zones and also indicate the names of the rivers in the respective zones.
(c) The Chairman shall be paid remuneration of Rs.50,000/- per month and the members shall be paid Rs.25,000/- per month each. The tenure of the Committee shall be initially for a period of two years. The Committee shall be provided with office space in Chennai, Tirunelveli, Coimbatore and Tiruchi. The Committee is to be provided with a typist and Assistant at Head Office and Zonal Offices by providing necessary infrastructure. Adequate police protection has to be given to the Committee while visiting the sites to ensure effective monitoring.
(d) After granting permission for sand quarrying in any river or tributary in the State of Tamil Nadu, the respective District Collectors shall forward a copy of the preliminary report submitted by the inspecting team and also the copy of the proceedings permitting sand quarrying. The Committee shall monitor that the sand quarrying is done in accordance with the TN MMC Rules and in compliance with the terms and conditions of the permission granted and the directions issued in this order.
(e) The Committee shall monitor whether sand quarrying is done in a scientific and skilful manner. The Committee shall have power to check the transport permits issued. The Committee shall verify the accounting procedure and the quantum of load put up to the lorries.
(f) Any person having grievance about illegal quarrying/excessive quarrying/non-compliance of TN MMC Rules/other directions shall prefer complaint before the Committee and the Committee shall look into the same and shall make enquiry and shall communicate with the District Collector and the Public Works Department to redress the grievance. The Committee shall collect the reports from the Zonal Committee and send a periodical report to this Court once in four months.
(g) Insofar as Vaipar and Palar, pursuant to the orders of the Court, already Committees have been constituted to monitor the sand quarrying. Insofar as Vaipar and Palar, State Level Monitoring Committee shall function in coordination with those Committees already constituted.
(h) Any deviation of procedure/rule is to be brought to the notice of the District Collector for taking appropriate action. In case of inaction of the District Administration, the Committee shall bring it to the notice of the Court by filing appropriate Report.
(i) The Registrar Judicial has to finalise the names of the members of the Committees. The Registrar judicial is directed to submit the list of retired District Judges in the respective areas, panel of names of experts in Water Resource Management, Environmentalists in the respective zones. Registrar- Judicial shall also communicate with the High Court Registry, Universities/Institutions in getting the names of the experts. The Registrar Judicial shall also contact the individuals and obtain the willingness and submit his report giving the names, designations, addresses and contact numbers within a period of two weeks from today to enable this Court to pass further orders in constituting the Committee.
(j) The Registry is directed to list this case on 20.12.2010 for further orders as indicated in (i).
However, there is no order as to costs. Consequently, all the connected miscellaneous petitions are closed.
Usk Copy to:
1. The Advocate General, High Court, Madras
2. The Chief Secretary to Government, Government of Tamil Nadu, Secretariat, Chennai.
3.The Secretary to the Government of Tamil Nadu, Public Works Department, Secretariat, Chennai-9
4. The Secretary to Government, Industries Department, State of Tamil Nadu, Fort St. George, Chennai-9.
5. The Director of Geology and Mining, Guindy, Chennai.
6. The District Collector, Tuticorin, Tuticorin District.
7. The Executive Engineer, Tamirabarani Basin, Public Works Department (PWD), Tuticorin District.
8. The Assistant Director of Geology and Mining, Thoothukudi.
9. The Revenue Divisional Officer, Beach Road, Tuticorin.
10. The Assistant Director, Mines and Minerals, Collectorate Office,Tuticorin.
11. The Tahsildar, Srivaikuntam Taluk, Tuticorin District.
12. The Executive Engineer, Public Works Department(Water Resources) Tamirabarani Distribution Circle, Tirunelveli.
13. The Executive Engineer, TWAD (Village), Tuticorin.
14. The District Collector, Tiruneveli District
15. The Sub Collector, Cheranmahadevi, Tiruneveli District.
16. The Dy. Director of Geology and Mining, Tiruneveli District.
17. The Tahsildar, Nanguneri, Tirunelveli District.
18. The Executive Engineer, Public Works Department/ Water Resource Organisation, Tamirabarani Basin Division, Tiruneveli District.
19. The District Environmental Engineer, Tamil Nadu Pollution Control Board, Thoothukudi.
20. The Secretary to Government, Government of Tamil Nadu, Department of Environment, Secretariat, Chennai.
21. The Conservator of Forest, Forest Department, Palayamkottai, Tirunelveli.
22.The Registrar(Judicial) , Madurai Bench of Madras High Court, Madurai
23.The President, Tholappan Pannai Village Panchayat, Srivaikuntam Taluk, Tuticorin District