Madras High Court
The District Collector vs M/S.Indian Rare Earths Limited on 7 December, 2017
Equivalent citations: AIR 2018 MADRAS 41, (2018) 1 WRITLR 572
Author: V.Bhavani Subbaroyan
Bench: K.Kalyanasundaram, V.Bhavani Subbaroyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.12.2017
RESERVED ON : 07.11.2017
PRONOUNCED ON : 07.12.2017
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
W.A.(MD) No.1376 of 2017
and C.M.P(MD)No.9821 of 2017
The District Collector,
Kanyakumari District,
Nagercoil ? 629 001. ... Appellant/3rd Respondent
-vs-
1.M/s.Indian Rare Earths Limited,
Manavalakurichi,
Kanyakumari District,
Pin : 629 252,
Rep. by its Head. ... 1st Respondent/Petitioner
2.The Secretary to the Government,
Industries (MMD1) Department,
Government of Tamil Nadu,
Fort St. George, Chennai ? 600 009.
3.The Commissioner of Geology and Mining,
Guindy, Chennai ? 600 032. ... Respondents 2 & 3/
Respondents 1 & 2
PRAYER: Writ Appeal is filed under Clause 15 of Letters Patent against the
order, dated 21.04.2017 passed in Writ Petition(MD)No.4690 of 2017 on the
file of this Court.
!For Appellant : Mr.B.Pugalendhi,
Additional Advocate General.
^For R 1 : Mr.Krishna Srinivasan,
Senior Counsel
for M/s.S.Ramasubramanian Associates.
:JUDGMENT
(Judgment of the Court was delivered by V.BHAVANI SUBBAROYAN,J.) The challenge is made in the Writ Appeal against the order passed in W.P(MD)No.4690 of 2017 seeking to set aside the order, dated 21.04.2017 and modified by order, dated 13.07.2017 in the same Writ Petition.
2.The facts relating to the present Writ Appeal is that the first respondent/Writ Petitioner filed a Writ Petition in W.P(MD)No.4690 of 2017 seeking a Writ of Mandamus, directing the appellant herein/third respondent to grant the transport permits to the first respondent/Writ Petitioner as conveyed by his letter, dated 23.01.2017 in respect of the Mining Lease in G.O.Ms.No.1114, dated 12.08.1981 and G.O.3(D).No.6, dated 28.01.2000.
3.It is contended by the first respondent/Writ Petitioner that it is a Company incorporated under the provisions of Indian Companies Act which is under the administrative control of Department of Atomic energy. The first respondent/Writ Petitioner further contended that it is only a public sector company of its type in the Country, engaged in mining, mineral processing, research and development, production and manufacture of radio-active Thorium, Uranium, several rare earth compounds, Zirconia, Rutile/Ilmenite, Zircon, Monozite, Garnet and Siliminate etc. All these earth compounds produced and supplied by the first respondent/Writ Petitioner to the unit under the Department of Atomic Energy, Government of India. The first respondent/Writ Petitioner contended that Manavalakurichi unit engaged in mining process with respect to prescribed substances/atomic minerals. The Manavalakurichi unit established by the Government of India is the first Industry in the District of Kanyakumari set up for the purposes of developing the said area and to provide employment for the people in and around the said area. The first respondent/Writ Petitioner depending upon the need, applied for mining leases in Midalam and Manavalakurichi Villages not only for beach washing collection of replenishable beach minerals, but also for advanced dredge mining under the provisions of Mines and Minerals (Development and Regulation) Act, 1957, and the Rules framed thereunder, Mineral Concession Rules, 1960.
4.It is further contended by the first respondent/Writ Petitioner that pursuant to their applications, the first respondent/Writ Petitioner was granted the following mining leases:-
(i) G.O.Ms.No.3707, dated 01.11.1968 ? Manavalakurichi : 17.44 acres (7.06 hectares) Vattakottai ? 41.46 acres (16.78 hectares). Subsequently renewed vide G.O.3(D).No.6, dated 28.01.2000 for Manavallakurichi Village (7.06 hectares).
(ii) G.O.Ms.No.1085, dated 21.09.1977 - Midalam and Keezhmidalam area ? 73.56 acres (29.78.12 hectares).
(iii) G.O.Ms.No.1114, dated 12.08.1981 ? Manavalakurichi, Lakshmipuram and Colachel Villages ? 348.83 acres (141.22.69 hectares).
(iv) G.O.3(D)No.74, dated 17.06.1998 - Manavallakurichi Village ? (14.84 hectares).
5.It is also further contended in the affidavit filed in support of the petition that out of the four mining leases above mentioned, except item No.4 mining lease deeds were executed in favour of the first respondent/Writ Petitioner pursuant to the said G.O's as per the Provisions of the Act. The first respondent asserts that they are continuing to mine the areas leased to it under the lease deeds regarding item Nos.1 and 3 and occasionally carrying on mining operation in the land covered under mining lease under item No.2. All the three mining lease under item Nos.1, 2 and 3 were under 'deemed extension' as per Rule 24A(6) of MCR and consequent upon coming into force, the new Atomic Mineral Concession Rules 2016. All the existing mines leases are deemed to have been granted for a period until the entire reserve of such minerals in the mines are exhausted.
6.The first respondent/Writ Petitioner further contended that except item No.4, there was no requirement under the statute to obtain Environmental Clearance and Coastal Regulation Clearance as they were executed much before the Rules came into force regarding the Environmental Clearance or Coastal Regulation Clearance.
7.It is further contended by the first respondent/Writ Petitioner that with regard to item No.4 though the first respondent/Writ Petitioner was permitted to mine, however, in the absence of execution of lease deed by the State Government they were not carrying out any mining operations in the land covered under the said lease.
8.The first respondent/Writ Petitioner further stated that though they were not warranted to obtain Environmental Clearance nor Coastal Regulation Zone Clearance, the Ministry of Environment and Forest advised the first respondent/Writ Petitioner to apply for such clearance in accordance with EIA 2006 and CRZ notification 1991 as mining of rare minerals was permissible under CRZ notification 1991.
9.In view of the advise, the first respondent/Writ Petitioner seems to have applied for clearance regarding all mining leases for item Nos.1 to 4 mentioned supra. Accordingly, the first respondent/Writ Petitioner submitted three applications for Environmental Clearance to the Ministry of Environment and Forest on 25.01.2011 and 14.02.2011, as per the Terms of Reference prescribed by the Ministry of Environment and Forest. The first respondent/Writ Petitioner also applied for CRZ clearance before the District Coastal Zone Managing Authority (DCZMA) vide their application, dated 09.02.2013.
10.The first respondent/Writ Petitioner had further contended that these applications for Environmental Clearance were processed and the public hearing was also held. Thereafter, the Environmental Appraisal Committee (EAC) in its meeting held on 26 to 28, June, 2013 has recommended to grant Environmental Clearance in favour of the first respondent/Writ Petitioner in respect of all the four mining leases subject to the first respondent/Writ Petitioner obtaining CRZ clearance.
11.The first respondent/Writ Petitioner in the affidavit further contended that as far as CRZ clearance in respect of G.O.Ms.No.1114, dated 12.08.1991 and G.O.3(D)No.6, dated 28.01.2000, the DCZMA have also recommended for the grant of CRZ clearance vide letter, dated 10.07.2013 to the Tamil Nadu State Coastal Zone Managing Authority. Thereafter, the first respondent/Writ Petitioner represented to the Tamil Nadu State Coastal Zone Management Authority and Ministry of Environment and Forests seeking permission to carry on its mining activities in the inter-tidal zone as well pending approval. For the said representation, the Ministry of Environment and Forests, vide letter, dated 11.04.2016 addressed to TNCZMA informed the first respondent/Writ Petitioner that the mining of rare minerals is a permissible activity even within the area falling between the Low Tide Line and the High Tide Line, but is subject to regulations made in this regard and the clearance from Ministry of Environment and Forests as indicated in the Notification, dated 06.01.2011. The first respondent/Writ Petitioner contended that they have complied with all the requirements and there is nothing more required to be done in respect of its applications from grant of Environmental Clearance and CRZ clearance and as on date, the orders to be issued granting CRZ clearance and Environmental Clearance in respect of Mining Leases under item Nos.1 and 3 are pending with the Ministry of Environment and Forests and Tamil Nadu State Coastal Zone Managing Authority.
12.With regard to item Nos.2 and 4, the DCZMA rejected the application for CRZ clearance by an order, dated 10.07.2013, on the ground that the first respondent/Writ Petitioner had failed to obtain consent from the land owners, which order was challenged by the first respondent/Writ Petitioner before the National Green Tribunal in Appeal No.97 of 2013. During the interregnum period, EAC gave its recommendation for the grant of Environmental clearance to the first respondent/Writ Petitioner in respect of all the mining leases under item Nos.1 to 4 during the meeting held on 26 to 28, June 2013. This clearance and the recommendations were challenged by M/s.V.V Minerals, vide Application No.419 of 2013 before the National Green Tribunal. The first respondent/Writ Petitioner's Appeal No.97 of 2013 and the application filed the said M/s.V.V Minerals in Application No.419 of 2013 were heard together and the Honourable Green National Tribunal dismissed the appeal filed by the first respondent/Writ Petitioner and allowed the application filed by the said M/s.V.V Minerals in Application No.419 of 2013 by its order, dated 24.02.2014.
13.The first respondent/Writ Petitioner challenged the said order in Civil Appeal Nos.5824 and 5825 of 2014 before the Honourable Supreme Court and the same are still pending. A Public Interest Litigation Petition was filed by the Coastal Environment and Ecological Committee in W.P.No.5678 of 2007 and the same was disposed of on 20.01.2015. The SLP petition filed against the said order, dated 20.01.2015 was also dismissed on 16.10.2015.
14.Under this background, the first respondent/Writ Petitioner contended that the Commissioner of Geology and Mining, the third respondent herein/second respondent issued a letter, dated 11.01.2017, to all the District Collectors and Deputy Directors/Assistant Directors inviting their attention to an order of the Honourable Supreme Court in Deepak Kumar Vs. State of Haryana and others reported in 2012 (4) SCC 629, dated 22.07.2012 and two orders of the National Green Tribunal in Jatinder Singh Vs. Union of India, dated 19.02.2016 and Naresh Zargar Vs. State of Madhya Pradesh and others, dated 04.05.2016, wherein by the third respondent/second respondent referred to the directions issued in the above cases and directed all the District Collectors to ensure strict compliance of the orders in letter and spirit. During which period, the first respondent/Writ Petitioner applied for the grant of transport permission, without which the first respondent/Writ Petitioner cannot carry on its mining operations. The first respondent/Writ Petitioner was informed that in the absence of any Environmental Clearance, transport permit could not be issued and the first respondent/Writ Petitioner could not be permitted to carry on its mining activity. Under these circumstances, the first respondent/Writ Petitioner filed a Writ Petition seeking for a Mandamus, directing the respondents to grant transport permission to the petitioner as conveyed vide its letter, dated MK/HRM- LEG/2017, dated 23.01.2017 in respect of the mining leases in G.O.Ms.No.1114, dated 12.08.1981 and G.O.3(D)No.6, dated 28.01.2000.
15.The third respondent in the Writ Petition, namely, the District Collector, the appellant herein filed a detailed counter contending that the lease granted to the first respondent/Writ Petitioner are under 'deemed extension' category. So far renewal of leases have not been granted by the Government for not obtaining Environmental Clearance/CRZ clearance.
Sl.No. G.O and extent Period of lease Renewal and status of application Status Status of EC and CRZ clearance
1. G.O.1114, dated 12.08.1981OAE 141.22.69 ha 27.06.1984 to 26.06.2004 Renewal application dated 23.03.2003 pending with State Government Under deemed extension Awaited
2. G.O.1085, dated 21.09.1977 OAE 29.78.12 ha 15.10.1979 to 14.10.1999 Renewal application dated 16.09.1998 pending with State Government Under deemed extension Awaited
3. G.O.3707, dated 01.11.1968 OAE 7.06.0 ha at Manavalakurichi and 16.78.0 ha Vattakottai 31.08.1970 to 30.08.1990 G.O.3(D)No.6, dated 28.01.2000, 7.06.0 ha (31.08.1990) renewal application dated 21.08.2009 Under deemed extension Awaited
16.The Writ Petition was heard by the learned Single Judge and the learned Single Judge of this Court, by an order dated 21.04.2017, allowed the Writ Petition, thereby directing the authorities to permit the first respondent/Writ Petitioner to transport the already collected sand in the mines and the finished products from the factory and further directed the authorities concerned to dispose of the applications, dated 25.01.2011 and 14.02.2011 within a period of two months from the date of receipt of a copy of that order. Thereafter, an application was moved by the first respondent/Writ Petitioner in W.M.P(MD)No.8128 of 2017 in W.P(MD)No.4690 of 2017, wherein a prayer was sought to modify the order, dated 21.04.2017, to extend and to issue transport permit within a stipulated period. The learned Single Judge of this Court, while disposing of the Miscellaneous Application, by an order, dated 13.07.2017, directed the authorities to issue transport permit to the first respondent/Writ Petitioner within a period of two weeks from the date of receipt of a copy of that order. As against which, the present Writ Appeal is filed by the appellant/third respondent-District Collector assailing various grounds.
17.The appellant herein/third respondent stoutly opposed the contention of the first respondent/Writ Petitioner that the CRZ clearance is not applicable to beach sand mining falling in the inter-tidal zone and asserted that even for sand mining falling in the inter-tidal zone, the CRZ clearance is applicable. The appellant herein/third respondent has vehemently stated in their counter that the National Green Tribunal in its latest Judgment dated 04.05.2016 in Naresh Zargar Vs. State of Madhya Pradesh and others, which strongly insisted the State Government not to allow quarry/mining operation in respect of all minerals without getting Environmental Clearance from appropriate authorities. In fact, the appellant/third respondent also contended that Tvl.IREL has not submitted Environmental Clearance from MoEF and CRZ and hence, in view of the order passed by the National Green Tribunal, the transport permit could not be issued without fulfilling the Environmental Clearance condition.
18.The appellant/third respondent also contended that without adhering to the existing provisions of the Act and Rule and the direction given by the National Green Tribunal, the first respondent/Writ Petitioner requested to issue transport permit to transport existing mined materials of 50,000 metric tones of raw sand and 7,500 metric tones of finished products from the leasehold area, without submitting the environmental clearance from MoEF and CRZ and hence, they cannot be permitted to transport the mined materials without upgrading such clearance. The Government also opposed for issuance of transport permit to the first respondent/Writ Petitioner stating that without obtaining Environmental Clearance as well as CRZ clearance, the first respondent/Writ Petitioner sought for transport permit and sought for dismissal of the Writ Petition seeking for a Writ of Mandamus.
19.The learned counsel appearing for the appellant/third respondent has vehemently argued and contended before this Court that the original lease granted is only for a certain period and it was expired on 20.06.2004 and the first renewal of the said lease period also expired on 30.08.2010. However, since the renewal application, which was pending with the State Government was found to be defective in various aspects and without mandatory approved plan and without obtaining Environmental Clearance, the question of issuing transport permit would not arise. Among other grounds, the appellant contended that in Sub-Rule 6(2) of Rule 24(A) of Minor Concession Rules, 1960, wherein it is clearly stated that the deemed extension is limited for two years from the date of expiry of the lease in respect of first renewal of the lease. The provision of deemed extension is not applicable in respect of the second and subsequent renewal without any express order of the Government. These aspects were not considered by the learned Single Judge of this Court.
20.The appellant/third respondent also contended that the direction issued by the Honourable Supreme Court in Deepak Kumar Vs. State of Haryana and others reported in 2012 (4) SCC 629 and Rulings of the National Green Tribunal, Principal Bench at New Delhi in Naresh Zargar Vs. State of Madhya Pradesh and others, were outweighed by the learned Single Judge while granting transport permission. However, the learned counsel for the first respondent/Writ Petitioner assailed for sustaining the order of the learned Single Judge of this Court on the ground that their applications were not considered by the authorities in time, despite there was a specific direction issued by the National Green Tribunal that all the applications ought to have been processed on or before 31.03.2016 and in the absence of any order being passed by the authorities, they are entitled for transport permit to transport already mined products even without the Environmental Clearance and CRZ clearance.
21.The learned counsel for the first respondent/Writ Petitioner also would submit that they have sent various representations for issuance of Environmental Clearance to the Commissioner of Geology, to the District Collector, Kanyakumari and to the Honourable Chief Minister of Tamil Nadu on various dates for sustaining their operation and delay in issuing permits would completely jeopardise their operation and pose a serious threat to their existence which will lead to closure of the unit itself.
22.Heard the learned counsel appearing for the appellant/third respondent and the learned counsel appearing for the first respondent/Writ Petitioner.
23.On perusing the type-set of papers filed by the first respondent herein/Writ Petitioner, it is seen that a Public Interest Litigation Petition was filed by the Coastal Environment and Ecological Conservation Committee in W.P.No.5678 of 2007 arraying the first respondent herein/Writ Petitioner as ninth respondent and seeking a direction, directing the Coastal Zone Management Authority to forbear the ninth respondent ie., first respondent herein/Writ Petitioner from carrying on mining operations/activities at Manavalakurichi, Kanyakumari District, which falls within the CRZ zone for not obtaining clearance under Notification.
24.The first respondent herein/Writ Petitioner as the ninth respondent therein in the Writ Petition filed a detailed counter with respect to four leases obtained by the first respondent herein/Writ Petitioner. Surprisingly, all the four leases had expired long back and by virtue of provision under Minor Concession Rules, the first respondent herein/Writ Petitioner is permitted to mine under the pretext of deemed renewal which would mean that as on date there is no extension of renewal for any of the four leases which the first respondent/Writ Petitioner was granted earlier.
25.The Honourable Supreme Court while rendering its Judgment in Deepak Kumar Vs. State of Haryana and others reported in 2012 (4) SCC 629, wherein the subject was with regard to mining blocks for less than five hectares on the river beds of Yamuna, Tangri, Markanda, ghaggar, Krishnavati river basin and Dohan river basin etc., has expressed concern over illegal mining and the mining activities going on legally without any restrictions. The Honourable Supreme Court starting from paragraph Nos.8 to 11 had expressed the deepest concern which are as follows:-
?8.We are expressing our deep concern since we are faced with a situation where the auction notices, dated 03.06.2011 and 08.08.2011 have permitted quarrying mining and removal of sand from in-stream and upstream of several rivers, which may have serious environmental impact on ephemeral, seasonal and perennial rivers and river beds and sand extraction may have an adverse effect on bio-diversity as well. Further, it may also lead to bed degradation and sedimentation having a negative effect on the aquatic life. Rivers mentioned in the auction notices are on the foothills of the fragile Shivalik Hills. Shivalik Hills are the source of rivers like Ghaggar, Tangri, Markanda etc., River Ghaggar is a seasonal river which rises up in the outer Himalayas between Yamuna and Satluj and enters Haryana near Pinjore, District Panchkula, which passes through Ambala and Hissar and reaches Bikaner in Rajasthan. River Markanda is also a seasonal river like Ghaggar, which also originates from the lower Shivalik Hills and enters Haryana near Ambala. During monsoon, this stream swells up into a raging torrent, notorious for its devastating power, as also, river Yamuna.
9.We find that it is without conducting any study on the possible environmental impact on/in the river beds and elsewhere the auction notices have been issued. We are of the considered view that when we are faced with a situation where extraction of alluvial material within or near a river bed has an impact on the rivers physical habitat characteristics, like river stability, flood risk, environmental degradation, loss of habitat, decline in bio-diversity, it is not an answer to say that the extraction is in blocks of less than 5 hectares, separated by 1 kilometre, because their collective impact may be significant, hence the necessity of a proper environmental assessment plan. Possibly this may be the reason that in the affidavit filed by the MoEF on 23.11.2011 along with the annexure-2 report, the following stand has been taken:
?The Ministry is of the opinion that where the mining area is homogenous, physically proximate end on identifiable piece of land of 5 ha or more, it should not be broken into smaller sizes to circumvent the EIA Notification, 2006 as the EIA Notification, 2006 is not applicable to the mining projects having lease area of less than 5 ha. The Report of Committee on Minor Minerals, under the Chairmanship of the Secretary (E & F) with representatives of various State Governments as members including the State of Haryana and Rajasthan recommended a minimum lease size of 5 ha for minor minerals for undertaking scientific mining for the purpose of integrating and addressing environmental concerns. Only in cases of isolated discontinued mineral deposits in less than 5 ha, such mining leases may be considered keeping in view the mineral conservation.?
Situations referred to earlier prevail not only in the State of Haryana but also in the neighboring and other States of the Country as well and those issues had come up for serious deliberations before the Government of India, on various occasions.
10.Government of India was receiving various reports regarding the adverse impacts on riverbeds and groundwater due to quarrying/mining of minerals. The Mines and Minerals (Development and Regulation) Act, 1957, empowers the State Governments to make Rules in respect of minor minerals. It was noticed that proposals for mining of major minerals typically undergo environment impact assessment and environmental clearance procedure, but due attention has not been given to environmental aspects of mining of minor minerals. Environmental Impact Assessment Notification of 1994 did not apply to the mining of minor minerals, noticing that minor minerals were brought under the ambit of the Environmental Impact Assessment Notification of 2006 and as per the said Notification mining of minerals with a lease area of 5 hectares and above require prior environmental clearance. MoEF's attention was drawn to several instances across the Country regarding damage to lakes, riverbeds and groundwater leading to drying up of water beds and causing water scarcity on account of quarry/mining leases and mineral concessions granted under the Mineral Concession Rules framed by the State Government under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957. MoEF noticed that less attention was given on environmental aspects of mining of minor minerals since the area was small, but it was noticed that the collective impact in a particular area over a period of time might be significant. Taking note of those aspects, MoEF constituted a Core Group under the Chairmanship of the Secretary (E & F) to look into the environmental aspects associated with mining of minor minerals, vide its order, dated 24.03.2009. The terms of reference to the Group were as under:-
(i) To consider the environmental aspects of mining of minor minerals (quarrying as well as river beds mining) for their integration into the mining process.
(ii) Specific safeguard measures required to minimize the likely adverse impacts of mining on environment with specific reference to impact on water bodies as well as groundwater so as to ensure sustainable mining.
(iii) To evolve model guidelines so as to address mining as well as environmental concerns in a balanced manner for their adoption and implementation by all the mineral producing States.
The Group held its first meeting on 07.07.2009 and discussed the impact that may be caused by quarrying/mining of minor minerals on riverbeds and ground waters. It was noticed that individual mines of minor minerals being small in size may have insignificant impact, however, their collective impacts, taking into consideration various mines on a regional scale, is significantly adverse. It was, therefore, felt necessary to consider various aspects since appropriate guidelines have to be issued on the basis of the report of the Committee. The issues which were brought up for consideration were: (i) the need to re-look the definition of minor mineral, (ii) minimum size of lease for adopting eco friendly scientific mining practices, (iii) period of lease, (iv) cluster of mine approach for addressing and implementing EMP in case of small mines, (v) depth of mining to minimize adverse impact on hydrological regime, (vi) requirement of mine plan for minor minerals, similar to major minerals and (vii) reclamation of mined out area, post mine land use, progressive mine closure plan etc.?
26.Further, the Honourable Supreme Court in para 14, 15 and 16 has expressed their concern and issued direction to all the State Governments to follow certain guidelines and the same reads as follows:-
?14.We are of the view that all State Governments/Union Territories have to give due weight to the above mentioned recommendations of the MoEF which are made in consultation with all the State Governments and Union Territories. Model Rules of 2010 issued by the Ministry of Mines are very vital from the environmental, ecological and bio-diversity point of view and therefore the State Governments have to frame proper rules in accordance with the recommendations, under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957.
15.Quarrying of river sand, it is true, is an important economic activity in the Country with river sand forming a crucial raw material for the infrastructural development and for the construction industry but excessive in-stream sand and gravel mining causes the degradation of rivers.
Instream mining lowers the stream bottom of rivers which may lead to bank erosion. Depletion of sand in the streambed and along coastal areas causes the deepening of rivers which may result in destruction of aquatic and riparian habitats as well. Extraction of alluvial material as already mentioned from within or near a streambed has a direct impact on the stream's physical habitat characteristics.
16.We are of the considered view that it is highly necessary to have an effective framework of mining plan which will take care of all environmental issues and also evolve a long term rational and sustainable use of natural resource base and also the bio-assessment protocol. Sand mining, it may be notes, may have an adverse effect on bio-diversity as loss of habitat caused by sand mining will effect various species, flora and fauna and it may also destablize the soil structure of river banks and often leaves isolated islands. We find that, taking note of those technical, scientific and environmental matters, MoEF, Government of India, issued various recommendations in March 2010 followed by the Model Rules, 2010 framed by the Ministry of Mines which have to be given effect to, inculcating the spirit of Article 48A, Article 51A(g) read with Article 21 of the Constitution?.
27.The Honourable Supreme Court, while expressing as above, has also emphasized the issues and recommendations of MoEF with the conclusion, which indicates that the operation of Mines and Minerals need to be subjected to strict regulatory parameters as that of Mines of major minerals. The Honourable Supreme Court while expressing their view on the quarrying of sand though held that it is an important activity in the Country forming crucial raw material for infra structure development and for the construction industries but excessive in stream sand and gravel mining causes the degradation of rivers. The Honourable Supreme Court while concluding directed the State of Haryana and various other States who have not so far implemented the recommendations of MoEF, shall implement the same before issuing auction notices granting short term permits by way of auction of minor mineral boulders, gravel, sand etc., and directed all the States and Union Territories MoEf and the Ministry of Mines to give effect to the recommendations made by MoEF in its March 2010 report and the model guidelines framed by the Ministry of Mines, within a period of six months.
28.The Honourable National Green Tribunal, Principal Bench at New Delhi in Jatinder Singh and another Vs. Union of India and another, while deciding the challenge in EIA Notification, dated 04.04.2011 has issued the following directions:-
?(i) This Honourable Court may consider directing that the applications seeking for the grant of Environmental Clearances for the mining of minor minerals as well as that for major minerals should be accepted by the competent authority (MoEF in respect of Category 'A' projects and State Environment Impact Assessment Authority for category 'B' projects) only through the concerned Departments of the respective State Governments and who should verify the details provided in the application and draft EIA Report. During the meetings convened by the concerned authorities for finalizing the Terms of Reference for the EIA studies as well as that for appraisal, the representative(s) of the concerned Department of the State Government should invariably be invited as a ?Special Invitee?. This will help towards ensuring that the Environmental Clearances are not obtained by the project proponents on the basis of factually incorrect information and that the cumulative effect of all the mining projects located in the project study area (10 Kms around the mining leases of 50 hectares and above 5 kms around the mining leases of 5-50 hectares) gets properly reflected in the EIA studies;
(ii) While grant of the Environmental Clearances for the mining leases of less than 50 hectares are presently considered by the statutory authorities constituted under the Sub-Section (3) of Section 3 of the Environmental (Protection) Act, 1986, namely State Environment Impact Assessment Authorities, the Environmental Clearances for mining leases of 50 hectares and above are considered by the MoEF. It may be desirable to also consider setting up of statutory authority(ies) for dealing with the mining projects with lease areas of 50 hectares and above;
(iii) The Environmental Clearances are invariably granted stipulating a large number of conditions to mitigate and contain the adverse environmental impact of mining in and around the mining lease areas. A monitoring mechanism regarding compliance of the stipulated conditions has also been prescribed.
However, effective steps to ensure timely action against the erring project proponent are by and large lacking and which defeats the very purpose of the entire process of the Environmental Clearances prescribed in the EIA Notification, 2006. This Honourable Court may consider directing the MoEF to take immediate remedial measures in this regard so that the stipulated conditions do not remain only on paper and the mining is actually carried out in the field in an environmentally sustainable manner; and
(iv) Presently the Environmental Clearances are required for all mining projects of minor minerals irrespective of the lease areas whereas the Environmental Clearances for major minerals having mining lease areas of less than 5 hectares is not required. This Honourable Court may consider directing MoEF to review the present scheme of things particularly considering that the environmental impact of mining of major minerals is in no way less than, if not more, than that of the mining of minor minerals.?
29.Prior to the above order passed by the Honourable National Green Tribunal, Principal Bench at New Delhi in Jatinder Singh and another Vs. Union of India and another, wherein a challenge to the said Notification, dated 04.04.2011 issued by the tenth respondent therein as unconstitutional was made, the Honourable Supreme Court at para 25 disposed the application with the following directions:-
?25.In light of the above discussion we dispose of this application with the following directions:-
a) It shall be mandatory for all the applicants to seek Environmental Clearance for carrying on of mining activity of minor or major minerals, even if the lease area is less than 5 hectares. In other words, MoEF, SEIAA and all other authorities would adopt uniform practice for issuance of Environmental Clearance in regard to the mining area of less than 5 hectares notwithstanding the fact that environmental impact of mining of minor minerals is no way less than that of the mining of major minerals. The Judgment of the Supreme Court in the Deepak Kumar Vs. State of Haryana (2012) 4 SCC 629, is applicable to both minor and major minerals.
b) Every effort should be made by all concerned authorities not to encourage grant of EC for mining activity where the area is less than 5 hectares. However, for providing clarity, we further observe that where for reasons of necessity for geographical, ecological and other reasons, if it is necessary to grant EC, for carrying on of mining activity of minor and major minerals in an area less than 5 hectares, a special report in that behalf shall be invited from the concerned State authority and EC would be granted for specific reasons to be recorded in that behalf and then the application would be considered for grant/refusal of EC.
c) MoEf in consultation with the State Government shall constitute a District Committee which would submit its report to MoEf prior to preparation of ToR, in regard to the contents of the application, the physical location of mining site, environmental concerns and the scope of ToR. This report shall be taken into consideration by MoEF and/or SEIAA before issuing ToR at the time of consideration of the EIA report.
d) The State Government should submit its mining plan in consonance with the provisions of Act of 1957, Mineral Concession Rules, 1960 and the same should be approved by MoEF and other concerned ministries in accordance with law.
e) Every applicant shall be granted permission for mining only after the mining plan submitted by the applicant to the Central Government has been approved in accordance with Rule 22 and in consultation with the Director General of Police, Secretary In-charge of mining and the Chief Scientist and Scientist-in-charge of Central Institute of Mining and Fuel Research, Regional Centre, Roorkee, an expert body in the field of mining which shall issue guidelines within the six weeks of the pronouncement of the Judgment, providing proper mechanism for supervision and ensuring the implementation of Judgment and taking appropriate action in accordance with law post issuance of order granting consent to operate and EC.
f) MoEF shall also re-examine in consultation with expert bodies to ensure reduction of time taken in issuance of EC, particularly, in light of the Judgment afore referred. All the mining authorities and MoEF/SEIAA would give due consideration to the applicants applying for mining lease or grant of EC, who have been found guilty of illegal, unauthorised and unscientific mining, violating the terms and conditions of the orders by which consent to operate and/or EC has been granted. Normally, it should be taken as a disability for renewal and/or granting of mining lease or such consent orders. Wherever the Government of the authority takes a decision to the contrary, it will be an obligation to record specific reasons in that behalf.?
30.From the plain reading of the above directions, it is clear that the Honourable Supreme Court has mandated that all the applicants seeking mining activity of minor and major minerals even if the lease area is less than five hectares, the Environmental Clearance is mandatory. In fact, the Honourable Supreme Court has made it clear that the Judgment rendered in Deepak Kumar Vs. State of Haryana and others reported in 2012 (4) SCC 629 is applicable to both major and minor minerals. The Honourable Supreme Court has mandated that every applicant shall be granted permission for mining only after the mining plan submitted by the applicant to the Central Government and the MoEF shall also re-examine in consultation with expert bodies to ensure reduction of time taken in issuance of Environmental Clearance.
31.From the narration of the above mentioned Judgment, it is categorically clear that based on the direction issued by the Honourable Supreme Court as well as the National Green Tribunal, no mining activity is permitted to be carried on without obtaining prior environmental clearance.
32.Section 24(A) 6 of the Tamil Nadu Minor Mineral Concession Rules, 1960 reads as follows:-
?6.If an application for renewal of a mining lease made within a time referred to in Sub-Rule 1 is disposed of by the State Government before the date of expiry of the lease the period of the lease shall be deemed to have been extended by a further period till the State Government passes order thereon.?
33.With the aid of the above rule, the first respondent/Writ Petitioner has claimed deemed renewal. Such renewal cannot be accepted that too when the enactment of subsequent rules makes mandatory that the Environmental Clearance as well as Coastal Regulatory Zonal Clearance for any mining activity on the sea bed whether high tide line or in the low tide line when it is prohibited, the same cannot be authorised under the pretext of automatic deemed renewal.
34.The Ministry of Environment and Forest under the Coast Regulation Zone Notification, dated 06.01.2011 has mandated that in the absence of Environmental Clearence as well as the Coastal Regulation Zone Clearance activities including mining across the Coastal Regulation Zone are declared as prohibited activities within the Coastal Regulation Zone under the notification of certain areas. The Notification clearly mandates the clearance need to be obtained from the concerned coastal zone management authorities for any mining activities across the coastal areas. The learned Single Judge while allowing the Writ Petition has failed to see that though the case is reported or relied deferred from the facts, the principle and the directions issued by the Honourable Supreme Court as well as the Honourable National Green Tribunal had to be strictly followed or adhered to.
35.It may not be out of place to refer the order passed by the Honourable National Green Tribunal in Miscellaneous Application No.260 of 2017 in Original Application No.123 of 2014, wherein the State of Tamil Nadu has filed an application with a prayer that the Tribunal may pass appropriate order/directions for extending the time for implementation of the directions rendered in the Judgment of the Tribunal, dated 13.01.2015 by one year.
36.It was the case thereby the State of Tamil Nadu, when tendering unconditional apology for non-complaince of the directions of the Tribunal, the State pleaded that out of existing quarries, 825 minor minerals applied to State Environmental Impact Assessment Authority for obtaining Environmental Clearance, 184 existing quarries were yet to submit their mining plan for approval, 318 major minerals now converted to minor minerals were also yet to submit their application to the concerned authority, 351 granite lease holders submitted their scheme of mining belatedly and 370 granite lessees were yet to submit their scheme of mining. In this regard, 2048 mines have not obtained Environmental Clearance as of now and if the mines were closed for want of Environmental Clearance cascading effect on the construction and allied activities will happen apart from affecting employment adversely. Stoppage of mining activity would result in shortage of minerals for development and industrial activities.
37.The Honourable Green Tribunal, while dismissing the Miscellaneous Application has specifically directed the State Governments in the light of the Judgment of the Honourable Supreme Court in Deepak Kumar Vs. State of Haryana and others reported in 2012 (4) SCC 629 that all the mine holders would be required to obtain Environmental Clearance irrespective of the fact whether the area involved is more than or less than five hectares. The Tribunal had also cited various extensions granted by the State Governments for disposing of their applications seeking Environmental clearance by such applicant doing mining activities or such applicant who is seeking extension of lease or modification of areas.
38.As far as the present case on hand, it is true that the applicant has made application seeking Environmental Clearance. However, the counter filed by the appellant herein/third respondent before this Court in the Writ Petition had categorically submitted that the first respondent/Writ Petitioner has not submitted the Coastal Regulatory Zone Clearance for necessary extension of lease or for transport permit as on the date of filing the Writ Petition. In the absence of Environmental Clearance and Coastal Regulatory Zone clearance from the appropriate authority to renew their lease as per the Act and the Rules, without adhering to the existing provisions and subsequent enactment with intention to prevent illegal or unauthorised mining across the coastal area, no transport permission can be granted to the first respondent/Writ Petitioner. As admitted by the first respondent/Writ Petitioner in the affidavit filed in support of the Writ Petition as well as the counter filed in this appeal, they have neither got clearance nor got the Coastal Regulation Zone Clearance. In these circumstances, it is not known how 50,000 metric tones of raw sand and 7,500 metric tones of finished product is claimed to be mined legally from the lease hold area. The Honourable Supreme Court in Deepak Kumar Vs. State of Haryana and others reported in 2012 (4) SCC 629, has categorically held that no mining activity shall take place or the State shall accord no permission to mine without obtaining Environmental Clearance from the concerned authorities. The Honourable Supreme Court has rendered the order as early as on 2012, subsequent to which all the State Governments have directed all the mine holders to obtain necessary Environmental Clearance from the concerned authority for the pending as well as the renewed or the forthcoming mining activities. It is not known how such a huge quantity of sand was mined by the first respondent herein/Writ Petitioner. Certainly, when there is a bar to mine in any area without obtaining Coastal Regulatory Zone Clearance as well Environmental Clearance, it is not known how the first respondent/Writ Petitioner was able to excavate such huge quantity of raw sand as well as finished products. The directions and restrictions are equally applicable to any Organization/Department of the Government and/or when supply is effected to any department of the Government.
39.As far as the prayer made by the first respondent herein and petitioner in the Writ Petition seeking a direction directing the appellant herein/third respondent to permit the first respondent/Writ Petitioner to transport already collected sand in the mines and finished product from the factory and the directions issued by the learned Single Judge, the same cannot hold good and the order passed permitting the first respondent/Writ Petitioner to transfer the same has to be set aside. Though the applications filed by the first respondent/Writ Petitioner seeking Coastal Regulatory Zone Clearance as well Environmental Clearance is pending before the authorities at various stages, the inaction of the authorities failing to dispose of the application on time does not give any right to the first respondent/Writ Petitioner to involve in the mining activities without obtaining such clearances endangering the marine habitants. Similarly, the contention that if transport is not permitted and if mining is not permitted pending approval, it will affect the livelihood of many people and the development activities, cannot be accepted for the simple reason that even if the hands of law are harsh the same has to be complied. More so, when the result could endanger ecology. These clearances, especially Environmental Clearance as well as the Coastal Regulatory Zone Clearance is brought as mandatory for the mine holders, especially, those mines across the sea beds is only to protect the marine habitants, as against the unauthorised and unrestricted mining activities which damages the eco-systems of sea beds, destructing the natural habitants of organisms living on the sea beds and also considering the impact of the same on the human habitants. There is an increase in concern over the environmental degradation through out the world. The pollution and chemical effluents directly discharged into the water bodies causes concern which is a life threatening health hazard not only for the mankind, but also for the creatures living in the water bodies.
40.Of late, man had been very greedy in exploiting the mother nature which is a gift given to the mankind inharmoniously exploited the word co- existence is no more synonyms to existing along with the mother nature. In every part of the world whether the nature is being exploited what is given to human kind by nature was unceremoniously depleted among all the exploitation mining comes foremost of all the sources that paved way for degradation of nature as well. No doubt, for the development the same can be utilised only when it is needed and there is always a difference for 'need' and 'want'. There is a limit for need, but there is no limit for want. Man is towards 'want' and 'wants'. Sand mining for the last five decades for exploring minerals is causing threat to bio-diversity and environmental degradation when it is done in a haphazard and commercial manner.
41.Under these circumstances, the order passed with regard to permitting the first respondent to transport the mined raw sand as well as the finished product is beyond the scope of the order passed by the Honourable Supreme Court in Deepak Kumar Vs. State of Haryana and others reported in 2012 (4) SCC 629 as well as the order passed by the National Green Tribunal.
42.In as much as the discussions stated supra, we are of the firm view that the Writ Appeal has to be allowed thereby setting aside the order of the learned Single Judge, dated 21.04.2017 and consequent modification, dated 13.07.2017 in as far as permitting or directing the authorities to allow the first respondent/Writ Petitioner to transport the already collected sand in the mines and the finished products from the factory.
43.While setting aside the order passed by the learned Single Judge, the second respondent is directed to file a comprehensive report before this Court by collecting the details from all the District Collectors with regard to the on-going mining activities throughout the State and ascertain as to whether Environmental Clearance is obtained and the Coastal Regulatory Zone Clearance is obtained for mining activities across the water bed and forthwith issue orders stopping all the mining activities against those mines, who have not obtained the Environmental Clearance as well as the Coastal Regulatory Zone Clearance as directed by the Honourable Supreme Court in Deepak Kumar Vs. State of Haryana and others reported in 2012 (4) SCC 629 and the orders passed by the National Green Tribunal, Principal Bench at New Delhi in Naresh Zargar Vs. State of Madhya Pradesh and others, within a period of four weeks from today.
44.In the result, this Writ Appeal is allowed and the order, dated 21.04.2017 passed in W.P(MD)No.4690 of 2017 and the order, dated 13.07.2017 passed in W.M.P(MD)No.8128 of 2017 in W.P(MD)No.4690 of 2017 are set aside. No costs. Consequently, connected Miscellaneous Petition is closed.
45.List the matter for compliance on 10.01.2018.
To
1.The District Collector, Kanyakumari District, Nagercoil ? 629 001.
2.The Secretary to the Government, Industries (MMD1) Department, Government of Tamil Nadu, Fort St. George, Chennai ? 600 009.
3.The Commissioner of Geology and Mining, Guindy, Chennai ? 600 032.