Madras High Court
Thyagi S. Ponniah Pillai vs Government Of India, Ministry Of ... on 17 November, 2006
Author: K. Chandru
Bench: A.P. Shah, K. Chandru
ORDER K. Chandru, J.
1. This writ petition is filed allegedly on public interest by the writ petitioner claiming that he was a freedom fighter and had worked in the Indian National Army [for short 'INA'] established by Nethaji Subhash Chandra Bose. The prayer in the writ petition was to quash the order dated 03.4.2006, which is a communication issued by the Ministry of Environment and Forests, Government of India (first respondent herein) granting environmental clearance in terms of Coastal Regulation Zone [hereinafter referred to as 'CRZ'] notification dated 19.02.1991 at Kulasekarapattinam, East Thiruchendur, Udangudi, Punnakayal, Vaippar and Kallurani Villages in Tuticorin District for the sixth respondent herein.
2. The impugned order annexed in the typed set prescribes the survey Number and the extent of land for which the sixth respondent was permitted to quarry the rare minerals. According to the petitioner, this clearance was in violation of the CRZ notification and the first respondent Ministry has erroneously granted clearance without taking into account the adverse impact and that no permission should be granted to quarry garnet sand on the coast line.
3. Initially, this Court, while ordering notice to the parties, by an order dated 21.8.2006 in M.P. No. 2 of 2006, prohibited extracting of garnet sand by the sixth respondent without prior permission of this Court. Subsequently, M.P. No. 3 of 2006 was filed by the sixth respondent for vacating the interim order of stay granted earlier supported by an affidavit dated 08.9.2006. In the meanwhile, counter affidavits were filed on behalf of the third respondent dated 19.9.2006, first and second respondents dated 26.10.2006 and also on behalf of the fourth respondent Pollution Control Board dated 13.9.2006 controvertng the averments made by the writ petitioner.
4. We have heard the arguments of Mr. AR. L. Sundaresan, learned Senior Counsel leading Ms. AL. Ganthimathi, learned Counsel appearing for the petitioner, Mr. P. Wilson, leanred Additional Solicitor General appearing for the respondents 1 and 2, Mr. Raja Kalifullah, learned Government Pleader representing the respondents 3 and 5, Mr. Ramanlal, learned Counsel appearing for the fourth respondent Tamil Nadu Pollution Control Board and Mr. A.L. Somayaji, learned Senior Counsel appearing for Mr. V. Karthikeyan, learned Counsel for the sixth respondent and have perused the records. We do not think that this is a bonafide writ petition filed by the petitioner in public interest taking into account the long history of the cases filed on earlier occasions by different persons, which are said to be in public interest, before this litigation is brought to this Court.
5. In this context, it is necessary to refer to the judgment of this Court made in W.P. Nos. 11971 and 15451 of 1995 wherein one garnet sand company came before this Court seeking for Police protection stating that they were prevented by the members of various organisations from mining the garnet sand. A learned single Judge of this Court, by an order dated 09.9.1996 in W.P. Nos. 11971 and 15451 of 1995, passed a detailed order rejecting the arguments advanced on behalf of the members of the public in the following lines:
39. Even G.O.Ms. No. 11 dated 15.1.1994, in paragraph 7, in condition No. 4, states that the lease was granted subject to complying with the conditions enumerated in the letter dated 10.6.1993 of the Government of India aforementioned. Hence the argument of the learned Counsel for the fourth respondent that mining operation has been carried on in mid tide region beyond the water line cannot be accepted. Having regard to the conditions imposed in the mining lease granted, confining it only to surface mining, using manual labour, the contention of the learned Counsel for respondent No. 4 that the petitioner is scooping the wet sand about six feet below and thus triggering off the quick movement of the sediment which in turn affects the coastal line, cannot be accepted.
Further, in paragraph 40, it was observed as follows:
40... The learned Counsel for the petitioner also added that there are several companies engaged in similar activity in the District. The respondent No. 4 has chosen to object only for the mining lease granted to the petitioner. Thus, it is not possible to accept the contention of the learned Counsel for the respondent No. 4 that they have been violations in the grant of mining lease to the petitioner. It is also not possible to accept, having regard to the nature of the mining lease and the conditions in the mining lease granted to the petitioner, that either any pollution is caused to it affected the life and property of the villagers of the hamlet in any way. The rare sand is deposited on seashore brought by waves and it would be collected and garnet sand is separated by a process, and the surface mining operation only if allowed that too by manual labour.
By stating so, the Police was directed to give necessary protection to the petitioner therein.
6. Once again, a similar case was brought before this Court in W.P. No. 5586 of 1997 and the writ petition was disposed of by a learned single Judge of this Court by order dated 04.12.1997 wherein in paragraph 11 of the order, the learned Judge held as follows:
11. Garnet mining, unlike mining of other minerals which occurred in the surface of the earth is required to be dealt in manner, in the manner appropriate to the manner if its occurrence and not like other mineral deposits which are not capable of being disbursed by natural forces. The state being the owner of the mineral, as already noted, which has a right to grant leases in all places where such deposits are likely to occur by reason of the operation of the forces of nature. Petitioner has not been given the right to interfere with or block, the operation of those forces merely to accumulate more deposit within the area leased to the petitioner.
7. In the present case, the sixth respondent has filed a counter affidavit dated 08.9.2006 in which in paragraph 8, it is alleged as follows:
Para 8: The averments made in para 7 and 8 of the affidavit are denied. Mining leases are granted after detailed examination and based on the Indian Bureau of Mines Report. The petitioner's intention is to support M/s. K.S.P.S. Natarajan and Co. but the authorities did not recommend the application of M/s. K.S.P.S. Natarajan & Co., since the applicant has not complied with the statutory requirements. Hence the writ petition filed by the petitioner at the instance of K.S.P.S. Natarjan and Co. under the guise of Environment Protection Act cannot stand.
The above statement made by the sixth respondent is not denied by the petitioner by filing any reply affidavit and it remains uncontroverted.
8. In any event, in the present area of operation, a number of mining leases have been granted in the Districts of Thirunelveli, Tuticorin and Kanyakumari for garnet mining. These minerals are major minerals and are governed by the Mines and Minerals (Regulation and Development) Act, 1957 and Mineral Concession Rules, 1960. The application for mining licence is to be made to the District Collector, who thereafter calls for a report from the Tahsildar. Notices are published in the villages for objection and after considering the objections, the report regarding land availability is sent to the Government and safety distance to the public is also provided. Thereafter, the Technical Report of the Assistant Director of Geology and Mining is obtained and the Collector will send the consolidated report to the Government through the Director of Geology and Mining. The Director also sends his own report about the technical feasibilities. Based on the above reports, the Government decides to grant or reject the reports. If the State Government wants to grant mining lease, it will have to seek prior approval of the Government of India, which is mandatory and only after getting prior approval from the Government of India, the precise area letter will be issued to the applicant and the applicant will have to produce an approved mining plan duly approved by the Government of India. The mining plan itself contains technical aspects such as Geology, Method of mining, etc. in addition to the Environmental Impact Assessment (EIA) and Environmental Management Plan (EMP). Based on the approval of the mining plan, mining leases are granted.
9. When it is shown that the sixth respondent has been doing the mining work for the last two decades after getting necessary approval and mining licence from both the Central and State Governments, it is not open to the writ petitioner to come before this Court and to put spokes on the mining activity indulged by the sixth respondent. The only contention of the petitioner was that for the mining lease the EIA given by the Ministry of Environment and Forest of the Government of India was illegal. But no materials are produced in support of the said contention. In fact, the CRZ Notification, 1991 itself grants exemption for the mining of sand, rocks and other minerals, except those rare minerals not available outside the CRZ areas. This fact was even noted in the earlier round of litigations, which were brought to this Court at the instance of different parties.
10. In paragraph 7 of the counter affidavit filed on behalf of the third respondent, it is stated as follows:
7. The quarrying of rare minerals is a permissible activity as per para 2 (iii)b of CRZ Notification, 1991. The heavy minerals for which mining clearance has been issued by Government of India, are predominantly available in coastal area. The contention of the petitioner is not acceptable and devoid of any merits. The respondents have issued the environmental clearance for the mining of rare minerals strictly following the relevant norms prescribed in the CRZ Notification, 1991 and after having scrutinized the impact assessment study. The mining of rare minerals, which are available along the seashore, is a permissible activity under the CRZ Notification, 1991.
11. In paragraph 10 of the counter affidavit filed by the second respondent, it is stated as follows:
The environmental clearance has been accorded under CRZ Notification, 1991 since it is a permissible activity under the notification. Further, while according clearance all requisite documents/information such as recommendations of the State Environment Department, State Coastal Zone Management Authority, Environment Impact Assessment Report and CRZ map with High Tide Line and Low Tide Line demarcated by the map with High Tide Line and Low Tide Line demarcated by the authorized agency has been taken into consideration. The clearance accorded to the proponent on 3.4.2006 includes Specific and General Conditions which are indicated at para 4.
12. In paragraph 2 of the counter affidavit, the fourth respondent Pollution Control Board has stated as follows:
2. It is further submitted that these mining of rare minerals (not available outside the CRZ area) is permissible only in CRZ-III, but not in CRZ-1 & II and inter tidal zone as per the Coastal Regulation Zone Notification 1991 as amended. The unit's proposed sites fall under the purview of CRZ Notification 1991 as amended. Therefore the unit has to obtain clearance from the MOEF, GOI under said notification. The Tamilnadu Coastal Zone Management Authority in its meeting held on 09.09.2005 resolved to recommend the units proposal for the mining of rare minerals for 371.16 hectares to the MOEF, GOI subject to one of the conditions that the unit must obtain NOC from the Tamil Nadu Pollution Control Board. Further, the Authority resolved that EIA Study has to be conducted on the sites already recommended for mining by the unit through any one of the institutions (NIOT-Chennai, IOT-Anna University, IIT, Chennai, CASMB - Annamalai University) and to submit the report within 3 months. The unit's said proposal for the mining of rare minerals has been accepted by the State Government and the same has also been forwarded by the E&F Department of State Government, Tamil Nadu to MOEF, GOI vide Govt. letter dt. 03.10.2005.
It is respectfully submitted that the unit of M/s. V.V. Minerals filed application for consent of the Board for the mining of Minerals of beach sand containing garnet, Illumenite and Rutile of 89,07,840 T/month over an extent of 371.16 hectares in the coastal villages of Tiruchendur Taluk, Satthankulam Taluk and Vilathikulam Taluk of Thoothukudi District. The unit's proposed site falls under the purview of CRZ Notification 1991 as amended. Hence the Board has issued NOC to the unit's proposed mining project on 26.12.2005 with certain conditions to comply by the unit.
It is further submitted that the MOEF, GOI has accorded clearance for the mining activity to the unit on 03.04.2006, under the CRZ Notification 1991 as amended with certain conditions to comply by the unit.
It is needless to state that these conditions are binding on the sixth respondent and they cannot violate any of those conditions. The authorities will certainly conduct proper inspection and will issue appropriate directions.
13. We do not find any infirmity in the EIA clearance given by the first respondent Government of India and the public interest is completely safeguarded by the stand taken by the respondents 1 to 4 in their respective counter affidavits filed before this Court.
14. In the light of the above, the writ petition fails and the same shall stand dismissed. However, there will be no order as to costs. Consequently, the order dated 21.8.2006 made in M.P. No. 2 of 2006 will stand vacated. M.P. No. 2 of 2006 is dismissed and M.P. No. 3 of 2006 is allowed.