Madras High Court
K.Rajasekar vs The Chief Secretary To Government on 16 February, 2018
Bench: K.K.Sasidharan, G.R.Swaminathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.02.2018
Reserved on : 21.09.2017
Delivered on : 16.02.2018
CORAM
THE HON'BLE MR.JUSTICE K.K.SASIDHARAN
AND
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD) Nos.4251 of 2017, 7960,
14577, 15121, 8655, 13836,
16150, 15343, 11376,
17143 and 17531 of 2017 and
Connected Miscellaneous Petitions
W.P.(MD)No.4251 of 2017
K.Rajasekar ...Petitioner
Vs
1.The Chief Secretary to Government,
Secretariat, St.George Fort,
Chennai.
2.The District Collector,
Collector Office, Trichy District.
3.The Assistant Director,
Department of Geology and Mining,
Collector Office, Trichy.
4.The Tahsildar,
Srirangam, Trichy District.
5.S.Ramachandran
6.The Project Director,
Sand Mining Operation,
Tiruchirapalli.
7.The Executive Engineer,
Public Works Department,
Mining and Monitoring Division,
Tiruchirapalli. ...Respondents
(R6 and R7 are suo motu impleaded vide court
order dated 26.07.2017 in WP (MD)4251/2017)
Prayer:- Petition filed under Article 226 of the Constitution of India for
the issuance of writ of Mandamus, directing the respondents 1 to 4 to close
the 5th respondent illegal excavation of sand from the Kaveri River belts in
S.F.No.168(P) at Thiruvalarsolai and Kondaiyampettai, Srirangam Taluk, Trichy
District.
For Petitioners
Mr.S.Gopalamanikandan : W.P.(MD)No.4251/2017
Mr.C.Prakasam : W.P.(MD)No.7960/2017
Mr.G.Kandhavadivelan : W.P.(MD)Nos.14577 and
15121/2017
Mr.M.Saravankumar : W.P.(MD)No.8655/2017
Mr.T.A.Ebenezer : W.P.(MD)No.13836/2017
Mr.M.Ajmalkhan
Senior Counsel for
Mr.J.Ashok : W.P.(MD)No.16150/2017
Mr.S.Ramesh for
Mr.K.Govindarajan : W.P.(MD)No.15343/2017
Mr.R.Sundar : W.P.(MD)No.11376/2017
Mr.AN.Ramanathan : W.P.(MD)No.17143/2017
Mr.S.Gokulraj : W.P.(MD)No.17531/2017
For Respondents
Mr.Vijay Narayan, Advocate General
Assisted by : Mr.B.Pugalendhi, Addl.Adv.General
Mr.M.Govindan, Spl.Govt.Pleader
Mr.M.K.Subramanian, Govt.Pleader
for State
Mr.N.Shanmugaselvan for R1 in WP(MD) No.13836/2017
for R4 in WP(MD) No.16150/2017
for R9 in WP(MD)No.15343/2017
Mr.S.Jeyaraj for R16 in WP(MD)No.17143/2017
Court Commissioners : Mr.R.Alagumani
Mr.B.Saravanan
Prof.Dr.Ravichandran
:COMMON ORDER
The writ petitions are filed in pro bono publica primarily for issuance of a Writ of Mandamus directing the State to take effective and appropriate action to ensure closure/stoppage of all the mining activities in and around the River Coleroon and the River Cauvery in the districts of Trichy and Karur, for 10 years for natural replenishment of sand to restore the river environment, which is spoiled by excess mining and illegal mining by mining mafia in collusion with those in power and Government officials.
Individual Writ Petitions W.P.No.4251 of 2017 2(a). This writ petition is filed for issuance of a Writ of Mandamus to direct the respondents to stop the illegal excavation of sand from the Kaveri River belts in S.F.No.168(P) at Thiruvalarsolai and Kondaiyampettai, Srirangam Taluk, Trichy District.
W.P.No.7960 of 2017b) The petitioner has filed this writ petition for cancellation of the licence issued by the District Collector, Karur for sale of the sand in S.F.No.915(Part), Nanjai Thottakurichi Village, Karur District without adopting a transparent method, as the contractors are mining sand under the guise of loading and transporting sand to various destinations across the State.
W.P.No.14577 of 2017c) This writ petition is filed to check the operation of illegal sand quarrying in and around Kollidam river at Kiliyanallur South Village, Manachanallur Taluk, Trichy District.
W.P.No.15121 of 2017d) The petitioner seeks a Writ of Mandamus directing the respondents to check the operation of illegal sand quarrying at Kariyamanickam West Village, Manachanallur Taluk, Trichy District.
W.P.No.8655 of 2017e) The prayer in this writ petition is to direct the respondents not to issue licence or consent for sand quarrying at Nanjai Kadamapan Kuruchi Village abutting Cauvery River Bed in the district of Karur.
W.P.No.13836 of 2017f) The petitioner seeks a direction to stop the River sand quarrying in Kilianallur, Melpathu and Thiruvasi Panchayat area, adjoining Kollidam River, Trichy District.
W.P.No.16150 of 2017g) The petitioner seeks a Writ of Mandamus directing the respondents to take appropriate action to ensure closure of all the mining activities in the River Bed of River Cauveri and Coleroon for 10 years for natural replenishment of sand.
W.P.No.15343 of 2017h) The prayer in this writ petition is to restrain the respondents from continuing the sand quarry operations in Cauvery River Bed between Karur and Trichy Districts.
W.P.No.11376 of 2017i) The petitioner seeks a Writ of Mandamus to the respondents not to carry out river sand mining at S.F.No.1/1, Unniyur, Village, Thottiyam Taluk, Trichy District.
W.P.No.17143 of 2017j) The substantial prayer is to direct the respondents to stop all the mining activities in the River Cauvery and Coleroon for 50 years for natural replenishment of sand.
W.P.No.17531/2017k) The writ petition in W.P.No.17531 of 2017 is filed by the father of Thiru.Ramkumar, who died due to drowning in the Cauvery River at Nerur South Village, Maravapalayam, Karur District, without noticing the huge pits to the depth of 30 to 40 feet developed on account of illegal quarrying. The prayer is to direct the respondents to erect sign boards on the river bund warning the onlookers that the place is dangerous for bathing and putting fence on the river bund. The petitioner prayed for an order to direct the respondents to pay a sum of Rs.25 lakhs as compensation on account of the death of his son, as it was due to the inaction and gross negligence of the officials.
3. Since identical issues are raised in all these writ petitions, the writ petition in W.P.No.16150 of 2017 is taken as the lead case.
The Lead Case
4. The writ petition in W.P.No.16150 of 2017 is filed by Cauveri Neervala Athara Pathukappu Sangam, Erode, to highlight the large scale illegal quarrying by sand mafia and the excess quarrying by the Public Works Department in violation of the environmental norms and clearance given by the statutory authority.
5. It is the contention of the petitioner that there are 10 Mining Leases under operation in river Cauvery and 14 in River Coleroon. The Public Works Department is operating all the River sand mining in the River Cauvery and River Coleroon haphazardly and unscientifically and beyond the lease hold area. Though the mining lease granted by the statutory authority would cover 75 hectares, the Public Works Department has mined and excavated 7000 m length and 1500 m width covering six villages on the Cauvery River bed. The petitioner in the affidavit filed in support of the writ petition indicated the large scale violation by the authorities of the Public Works Department, and the mining and transport contractors, besides the illegal mining activities undertaken in the area with the active connivance of the authorities. It is the grievance of the petitioner that on account of the large scale mining activities undertaken by the Public Works Department, water level in the domestic and agricultural wells have come down to 80 feet from 20 feet. The ground water resources are under constant threat. According to the petitioner, the Public Works Department has been violating the mining law and undertaking illegal sand mining all along the River Cauvery and Coleroon. The petitioner apprehends that in case the mining activities are continued in the way in which it is presently carried on by the Government, it would seriously affect the ecology and irreparable injury would be caused to the environment.
Interim Order to stop Sand Quarrying
6. In view of the prima facie case made out by the petitioners, we have injuncted the respondents from undertaking mining activities in and around the districts of Tiruchirapalli and Karur, and more particularly along the River Cauvery and Coleroon.
Appointment of Court Commissioners
7. We have after hearing the learned counsel for the petitioners in the respective writ petitions and the learned Advocate General for the State and taking into account the magnitude of the problem, appointed Thiru.R.Alagumani, Advocate, Thiru.B.Saravanan, Advocate and Prof.Dr.Ravichandran, Head of the Department, Plant and Science and Environment, Manonmaniam Sundaranar University, Tirunelveli, as Court Commissioners to inspect the mining areas and submit a report with respect to its present position. The order dated 28 August 2017 reads thus:
?The petitioners have come up with these Writ Petitions in pro bono publico alleging that the Executive Engineer, Public Works Department (WRD), River Conservation Division, Trichy, the twelfth respondent in W.P.(MD)No.16150 of 2017 in violation of the conditions enumerated in the Environmental Clearance, mined huge quantity of sand more than the permitted depth. It is the case of the petitioners that the permitted mining depth of all the river sand mining is 1 metre. However, the Executive Engineer mined and excavated more than six metres from the present bed level along the Cauveri river and artificially created thousands of mine pit within the river. There are five mining leases in Coleroon part of Edyathumangalam, Dakshinapuram, Thirumanadedu, Dandakorai and Koohur Villages. These five mining leases were categorized as B2 mining project. The total extent of the mining area should have been 125 Hectares. However, the Executive Engineer has mined 12500 Metres (12.5 Kilometres) length of river coleeron with width of 605 Metre. The petitioners have produced photographs indicating the large scale mining carried out by the officials of Public Works Department in excess of the permitted quantity.
2. The large scale quarrying operations without adherence to the Minor Mineral Concession Rules or the conditions enumerated in the Environmental Clearance was the subject matter in the Public Interest Litigation earlier before this Court. The Division Bench presided over by the Hon'ble Mrs.Justice R.Banumathi (As Her Lordship then was) issued series of directions by order dated 02 December, 2010 in W.P.(MD)Nos.11182, 11562, 11710, 11827, 12072, 12098, 12229 and 12383 of 2010 and appointed an Expert Committee to oversee the process of mining. The Division Bench was pleased to issue string of directions for undertaking sand quarrying operations in the rivers in the State of Tamil Nadu without affecting the environment. The Division Bench was pleased to appoint a former Judge of this Court as the Chairman of the Monitoring Committee and Expert Members to assist the Chairman. Since necessary infrastructural facilities were not given by the Government, the learned Judge tendered his resignation. There is no Chairman for the Committee now. The Government of Tamil Nadu is now undertaking quarrying operations through the designated authority.
3. The learned Additional Advocate General contended that the quarrying operation is conducted strictly in accordance with the conditions laid down by the Environmental Assessment Authority. According to the learned Additional Advocate General, there is no basis in the contention taken by the petitioners that the Public Works Department excavated more than six metres from the bed level and artificially created thousands of mine pit within the river.
4. The learned counsel for the petitioners and the learned Additional Advocate General finally agreed that in case a Commission is issued, it would enable this Court to decide the Writ Petitions on merits.
5. The petitioners have raised a core issue as to whether the Public Works Department was correct in excavating the sand much more than the permitted quantity and in violation of the conditions including permitted depth.
6. In view of the larger public interest involved in this matter and the dispute with regard to the excess and illegal mining, we are of the view that a Commission should be issued to ascertain the present position, taking into account the environmental clearance issued by the State Level Environment Impact, Assessment Authority Tamil Nadu.
7. We appoint Mr.R.Alagumani (Enrl.No.1461/1997), Advocate, Chamber No.82, Law Chamber, High Court, Madurai, Cell No.9842177806; Mr.B.Saravanan, Advocate, No.22, High Court, Madurai, Cell No.9443716952; and Prof.Dr.Ravichandran, Head of the Department, Plant Science and Environment, Manonmaniam Sundaranar University, Tirunelveli, as Advocate Commissioners to inspect the mining areas namely, Mayanur, Kulithalai, Sinthalavadi, Kadambankurichi in the District of Karur; Unniyur, Silaipilariyaputhur, Karakadu, Manamedu, Musiri (West), Pettaivaithalai, Panaiyakurichi, Kariyamanickam, Kiliyanallur, Thiruvasi, Kodaiyampettai, Viragalur, Alampatti in the District of Tirichy; Koviladi, Vittalapuram, Nadupadukai in the District of Tanjore. In case, we have omitted to mention any of the mining areas in the above three Districts, it is open to the concerned Counsel for the parties to give work memo to the Advocate Commissioners for inspection and report about the physical features and extent of mining.
8. The Advocate Commissioners are directed to inspect the mining lease area as indicated above as expeditiously as possible and file a report before this Court by 12 September, 2017. with advance copies to the parties.
9. We direct the Project Director, Sand Mining Operations, Trichirappalli, to assist the Advocate Commissioners, to execute the warrant.
The necessary travelling and all other arrangements including boarding shall be arranged by the Project Director, Sand Mining Operations, Trichirappalli. The District Collector, Tanjore, Trichy, Karur and Madurai are directed to extend full co-operation to the Advocate Commissioners. We direct the Inspector General of Police, Madurai, to provide necessary security to the Advocate Commissioners in view of the sensitivity of the issue.
10. Post on 12 September, 2017.
11. The interim order granted earlier is extended till then. ?
8. The Court Commissioners inspected the mining areas days together and submitted a comprehensive report, indicating the excess quarrying by the Public Works Department, illegal quarrying by the sand mafia and the loss caused to the ecology by such illegal quarrying activities.
Subsequent Events:-
9. The learned Advocate General on a perusal of the report filed by the Court Commissioners submitted that the Government would submit a detailed proposal in the form of an affidavit indicating the action that would be taken for protecting the environment while undertaking quarrying operations. We have therefore passed an order on 12 September 2017, the material portion of which is extracted below:-
"5. The learned Advocate General submitted that some quarries, like M.Puthur, Unniyur, Kariyamanikam, Mayanur, Chinthalavadi, Sriramasamuthiram, Musiri, Panayakurichi, Manathattai, Alambadi, Koviladi, Vittaalapuram, Nadupadugai have enough shoals of sand and that could be lifted by abiding with the norms prescribed by the Environmental Assessment Authority. According to the learned Advocate General, the Government is prepared to comply with the conditions prescribed by the Environmental Assessment Authority. The Government would make application before the Environmental Assessment Authority for granting permission for quarrying in M.Puthur, Unniyur, Kariyamanikam, Mayanur, Chinthalavadi, Sriramasamuthiram, Musiri, Panayakurichi, Manathattai, Alambadi, Koviladi, Vittaalapuram, Nadupadugai. The learned Advocate General further submitted that the Government has no objection in monitoring the sand quarrying by the Advocate Commissioners appointed by this Court.
6. The learned Advocate General submitted that the Government has evolved an App like "Ola Cabs and Uber", to assist the sand lorry owners to excavate the sand locally in the specific areas identified by the Project Director, Sand Mining. GPS would also be fixed in those vehicles. The learned Advocate General assured that the officials would permit mining depth in all rivers only upto 1 metre.
7. The learned Advocate General submitted that he would file a detailed affidavit sworn to by the Principal Secretary to Government, Public Works Department, indicating the measures proposed to be taken by the State to address the environmental issues raised by the petitioners. The learned Advocate General wanted these Writ Petitions to be posted on 19 September, 2017 for filing suitable affidavit by the State.
8. The learned counsel for the petitioners and Thiru.B.Saravanan, learned Advocate Commissioner submitted that even without environmental clearance, the Public Works Department quarried sand illegally from M.Puthur and Unniyur area and as such, there is only less deposit of sand now.
9. The Court should strike a balance in a matter of this nature. There should be sustainable development. The sand should be made available to the public. However, it should not be at the cost of the environment.
10. The learned Advocate General very fairly submitted that the Government would submit a detailed proposal in the form of an affidavit to be filed before this Court indicating the action that would be taken for protecting the environment while undertaking quarrying operations. The learned Advocate General submitted that the Government would take the assistance of the Advocate Commissioners to implement the fool-proof system to prevent illegal quarrying. We are, therefore, of the view that the State should be given reasonable time to file the detailed affidavit as indicated above.
11. Post on 19 September, 2017 for filing affidavit by the Principal Secretary to Government, Public Works Department, duly counter-signed by the Chief Secretary to Government of Tamil Nadu with advance copy to the learned counsel for the petitioners and the Advocate Commissioners.
12. The interim order granted earlier is extended until further orders."
10. Thereafter, the State filed an affidavit dated 18 September 2017 through the Principal Secretary to Government, Public Works Department and a supporting affidavit by the Chief Secretary to the Government.
11. The Principal Secretary to the Government, Public Works Department in his affidavit dated 18 September 2017 indicated the measures proposed by the Government to protect the environment while undertaking river sand quarrying. The Principal Secretary in his affidavit submitted that revamping the existing traditional mode of operation to a modern and environmentally sustainable mode of operation is the need of the hour. According to the Principal Secretary, all the necessary measures mentioned in the affidavit would be taken to achieve the purpose of sustainable development. The affidavit was supplemented by filing a separate affidavit dated 18 September 2017, by the Chief Secretary to Government, undertaking to protect the ecology.
Submissions
12. The learned counsel for the writ petitioners in the respective writ petitions contended that the State has been undertaking mining operations without any regard to the environment. The agents engaged by the State for mining and transportation of sand indulged in all kinds of illegal activities and the same resulted in causing considerable damage to the environment. By placing reliance on the report submitted by the Court Commissioners, it was contended that time has come to stop the sand quarrying operations across the River Cauvery and Coleroon in the interest of the ecology. It was further contended that the natural resources, which is the public wealth has been looted by the State in collusion with the intermediaries.
13. The learned Advocate General by placing reliance on the affidavit filed by the Principal Secretary to the Government, Public Works Department and the supporting affidavit filed by the Chief Secretary to the Government submitted that the State would undertake sand mining after satisfying all the legal requirements and without adversely affecting the ecology. According to the learned Advocate General, the State would discharge the obligation undertaken without causing any kind of damage to the environment. The learned Advocate General took us through the proposal indicated in the affidavit filed by the Principal Secretary to the Government to demonstrate that in case the steps suggested by the Government is taken, it would enable the State to undertake mining operations without affecting the environment. The learned Advocate General submitted that there are enough shoals of sand at Mayanur, Sriramasamuthiram/ Sipilaputhur, Chinthalavadi, M.Puthur, Sirugamani, Musiri (West), Panayakurichi and Vittalapuram and made a request to grant permission to the State to undertake sand quarrying operations in those sites subject to the clearance to be obtained from the environmental authorities. The learned Advocate General submitted that sand would be quarried without private participation. It was submitted that on account of the interim order, cost of sand was shooted up and common man is the ultimate sufferer.
Delay in pronouncing Judgment
14. After hearing the learned counsel for the petitioners and the learned Advocate General on 21 September 2017, we have reserved the writ petitions for pronouncing judgment.
15. While we were in the process of delivering the judgment, a writ petition was filed before the Writ Court in W.P.(Md)No.20020 of 2017 by a Private Limited company to forbear the State from insisting license or permit for importing river sand. While allowing the said writ petition, the learned single Judge, by order dated 29 November 2017, directed the State to stop all the sand mining/quarrying operations in the State within a period of six months and restrained the Government from opening any new quarries/mines in future. The order dated 29 November 2017 in W.P.(MD)No.20020 of 2017 was taken up in appeal by the State before the Division Bench in W.A.(MD)No.1454 of 2017 primarily on the ground that the scope of the writ petition in W.P.(MD)No.20020 of 2017 was confined to the legality of the conditions for taking permit for import of sand and it was not in relation to the question of sand mining across the State. It was a simple writ petition for a Writ of Mandamus to permit the petitioners therein to import river sand without any kind of restriction. Since the Division Bench was seized off the matter, we have kept the writ petitions pending without pronouncing judgment.
16. The Division Bench by judgment dated 19 January 2018 dismissed the intra court appeal. The Division Bench directed the State to close the sand quarrying operations across the State within a period of six months. The period would expire on 18 July 2018. The Division Bench was aware of the writ petitions reserved by the Coordinate Bench for judgment, in which, the substantial issue itself was closure of the sand mining activities. This fact is evident from the reference at Paragraph 49 of the judgment dated 19 January 2018 relating to the report submitted by the Court Commissioners pursuant to our order in these writ petitions.
17. The judgment rendered by the Division Bench dated 19 January 2018 was challenged by the State before the Supreme Court. The Supreme Court by order dated 5 February 2018 in SLP No. 2831 of 2018 stayed the operation of the judgment dated 19 January 2018 in W.A.(MD)No1454 of 2017 and Paragraph No.41 of the order dated 29 November 2017 in W.P.(MD) No.20020 of 2017, whereby and where under, the learned single Judge directed the State to stop all the sand mining activities in the State of Tamil Nadu within six months.
18. The Hon'ble Supreme Court in Indore Development Authority vs. Shailendra (dead) through LRS. & ors., (judgment dated 8 February 2018, in Civil Appeal No.20982/2017), made the following observation with respect to binding precedents.
?Thus, the decision rendered on a question which was not germane to the case cannot be said to be a binding precedent. It is obiter dicta and thus has to be ignored?.
19. We therefore proceed to deliver the judgment prepared long back but kept pending on account of the subsequent events indicated above.
Discussion River Cauvery - A Unique Gift
20. The River Cauvery is one of the seven major rivers in India. It is the fourth largest river in the peninsular southern India after the Godavari, the Krishna and the Mahanadhi. The River Cauvery is a unique gift of the western ghats to the southern part of India. The River Cauvery forms the economic lifeline for the people of Southern India. The industrial and agricultural prosperity of the State of Karnataka and Tamil Nadu were largely due to the perennial flow of the River Cauvery.
River Sand Mining in Tamil Nadu
21. The State of Tamil Nadu permitted the private lessees to undertake sand mining operations till 2003. Thereafter, the State took a policy decision to exploit the sand exclusively by inserting Rule 38-A by order in G.O.Ms.No.95 (MMC-1) Department, dated 1 October 2003. The State entrusted the Public Works Department to undertake the river sand mining in the State of Tamil Nadu.
22. The District Collectors of the concerned districts are expected to identify the mining area in respect of which the mining lease could be granted. The Public Works Department is expected to submit a detailed Mining Plan to the Assistant Director, Geology and Mining of the concerned district. The Geology and Mining department is obliged to ensure that the quantity of minerals available and permitted to be mined are based upon scientific assessment of materials available in the mining area. The mining plan should contain the entire details of the area of mining and the extent to which the mining operations could be undertaken. The authorities have granted 24 Mining leases for sand mining operations at River Cauvery and Coleroon.
23. The unscientific manner of river sand mining undertaken by the Public Works Department appears to be the root cause for the entire problem.
24. The adverse effect of sand mining without a proper mine plan was indicated by the Hon'ble Supreme Court in Deepak Kumar and others v. State of Haryana and others [ (2012) 4 SCC 629]
9. Extraction of alluvial material from within or near a streambed has a direct impact on the stream's physical habitat characteristics. These characteristics include bed elevation, substrate composition and stability, instream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Altering these habitat characteristics can have deleterious impacts on both instream biota and the associated riparian habitat. The demand for sand continues to increase day by day as building and construction of new infrastructures and expansion of existing ones is continuous thereby placing immense pressure on the supply of the sand resource and hence mining activities are going on legally and illegally without any restrictions. Lack of proper planning and sand management cause disturbance of marine ecosystem and also upset the ability of natural marine processes to replenish the sand.
25.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 instream 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.
Conditions imposed by the Environment Authority
25. The environmental clearance issued for mining of sand contained the following mandatory conditions:-
i) The Licensee must use minimum number of poclains and it should not be more than two in the project site.
ii) The District Administration should assess the site for Environmental impact at the end of first year to permit the continuation of the operation.
iii) The Annual replenishment report certified by the authorised agency must be submitted to the prescribed authority. In case, the replenishment is low, the mining activity/production levels shall accordingly be decreased/stopped.
iv) There shall be no quarrying of sand in any river bed or adjoining area or any other area which is located within 500 m radial distances from the location of any bridge, water supply system, infiltration well or pumping installation.
v) The ultimate working depth shall be 1 m from the present natural river bed level and the thickness of the sand available shall be more than 3 m in the proposed quarry site.
vi) The sand quarrying shall not be carried out below the ground water table under any circumstances. In case, the ground water table occurs within the permitted depth at 1 meter, quarrying operation shall be stopped immediately.
vii) The sand mining should not disturb in any way the turbidity, velocity and flow pattern of the river water.
viii) The mining activity shall be monitored by the Taluk level Force once in a month by conducting physical verification.
ix) After closure of the mining, the licensee shall immediately remove all the sheds put up in the quarry and all the equipments used for operation of sand quarry. The roads/pathways shall be levelled to let the river resume its normal course without any artificial obstruction to the extent possible.
x) The mined out pits to be backfilled where warranted and area should be suitably landscaped to prevent environmental degradation.
Illegal Mining
26. The Court Commissioners have inspected all the sand quarrying sites and given a status report with respect to the present position of the river bed. The Commissioners have reported that the illegal sand mining has been undertaken in many places and the authorities are silent spectators.
a) In respect of the quarrying at Thirukampuliyur, it was reported that illegal sand mining is taking place very near to the water project and the same is allowed to go unchecked.
b) The inspection of the illegal quarry at Sinthalaivaadi shows that there were several roads formed inside the river which ultimately lead to the illegal sand mining of unbelievable proportion. The roads running for several kilometers connecting the abandoned quarry and the illegal quarry remain motorable without steps being taken for dismantling.
c) The inspection of the permitted quarry at Sinthalaivaadi also showed that natural course of the river water has been artificially altered in order to mine sand from the quarry.
d) The inspection at Sirugamani quarry made the Commissioners to report that the sand mining has been done extensively and beyond the permitted area and the depth of excavation had crossed the permitted limit of one meter.
e) The mining plan with regard to Kulithalai was granted even without conducting spot inspection. The licensee obtained the mining permission by giving incorrect particulars.
f)The Court Commissioners found considerable damage caused to the river on account of the sand quarrying at Nanjaikadambankurichy quarry site. According to the Commissioners, damage caused to the river and the site is irreparable and the replenishment would take decades to restore the river to its original position.
g) The Court Commissioners submitted that Nanjai Thottakurichi quarry site shall be banned to avoid future quarrying and to enable replenishment. The Commissioners have recommended to dismantle the road running inside the river connecting Thottakurichi with Kadambakurichi.
h) The inspection of Unniyur permit quarry made the Commissioners to report that the Public Works Department has quarried more than the permitted extent.
27. Similar reports were submitted with regard to the other quarries adjoining River Cauvery and Coleroon.
28. The lifting contract is given to the persons selected by the Public Works Department. There is no transparent procedure adopted for giving such contracts. The excess mining and illegal mining are mainly at the instance of the Lifting contractors. However, action is not taken against them. Similar is the case with the transporting contractors. There is no mechanism as on today to verify as to whether the sand is transported to the actual place of destination.
29. The report submitted by the Advocate Commissioners indicated that the Public Works Department conducted mining operations outside the leased area and in excess of the permitted depth. Such excess quarrying would amount to illegal quarrying.
30. The Supreme Court in Common Cause v. Union of India and others [ (2017) 9 Supreme Court Cases 499] made it clear that mining operation outside the mining lease would constitute illegal mining.
31. The undertaking given by the State by way of an affidavit filed by the Principal Special Secretary to the Government, Public Works Department and the Chief Secretary to the Government must be considered in the light of the report submitted by the Court Commissioners.
32. The natural resources are valuable assets of the State. It isthe primary duty of the State to conserve the natural resources for our future generation. The citizens must be in a position to enjoy the resources without causing damage to the environment and the ecology. There must be an institutional framework and enforcement mechanism to prevent illegal and excess quarrying.
33. The mining should be undertaken by the State without any adverse impact on the environment. The State alone is responsible for this sorry state of affairs. There is no proper mechanism to check the illegal quarrying and the excess sand mining. The authorities who are given the mandate to operate the sand quarry are not at all concerned with the environment and ecology. They are conducting mining activities in collusion with the mining mafia and looting the natural wealth.
34. The River sand is an essential raw material for construction activity. The cost of construction nowadays depends upon very much on the cost of sand. The State for supply of sand to the people at affordable rate ought to have quarried the River sand judiciously and in compliance with the environmental norms and without causing destruction of Rivers. There is no dispute that depletion of sand in the stream bed would result in deepening of rivers and it would have a cascading effect on the environment. Therefore, a balance has to be struck taking into account the need to preserve the ecology and the need for quarrying River Sand for the economic development of the State.
35. The Government has detailed the measures proposed to be taken in the matter to address the issue raised by the petitioners. The Government has appointed a Project Director, Sand Quarrying Operations in the rank of an IAS officer and he is stationed at Trichy. The Court Commissioners in the report expressed their appreciation of the help rendered by the Project Director and his team of officials for ascertaining the present position of the sand quarry sites along the River Cauvery and Coleroon.
36. The affidavit dated 18 September 2017 filed by the Principal Secretary to Government, Public Works Department and Chief Secretary to the Government are taken on record. We are not extracting the contents of the affidavit in this order, as the same is taken as part of records.
37. The learned Advocate General submitted that on account of the injunction granted by this Court, the River sand is not available in the market and as a result, the cost of sand has increased considerably.
38. This Court taking into account the large scale illegal quarrying and excess quarrying restrained the Public Works Department from undertaking sand quarrying operations along the River bed of River Cauvery and Coleroon. Our apprehension that such unscientific and illegal quarrying would adversely affect the environment is confirmed by the report submitted by the Court Commissioners.
39. We are aware that the Government is committed to provide dwelling houses to the poor. The Central Government appears to have fixed 2022 as the deadline for providing dwelling units to the house less in the country. The State Government has already shortlisted 8.30 lakhs house hold in the State to achieve the target. The availability of sand at an affordable rate is one of the biggest challenges for the State now. Even though the average demand for sand per day is stated to be 9000 lorry loads, the State is in a position to supply only 2500 to 3000 loads of sand. The price of sand has sky rocketed to Rs.20,000/- per unit. We are conscious of the magnitude of the problem on account of the non-availability of River Sand.
40. The Hon'ble Supreme Court in M.C.Mehta v. Kamal Nath [1997 (1) Supreme Court Cases 388] made it clear that if there is a law made by the State legislature, the Courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review:
"35. We are fully aware that 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 resolution of this conflict in any given case is for the legislature and not the Courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the constitution."
41. The Government has identified the sand quarrying sites which includes Sirugamani and Silaipillayaputhur, where enough shoals of sand are available. The report submitted by the Court Commissioners indicates that there was excess quarrying at Sirugamani and Silaipillayaputhur. Those two existing quarries must be closed forthwith. Before undertaking any further sand mining activities in and around these areas, the authorities must visit the sites and prepare a report and Mine Plan. The environmental clearance should be given only after inspection and satisfying that there is enough shoals of sand even after closing the two existing sand quarries referred to in the report filed by the Court Commissioners.
42. The affidavit filed by the Principal Secretary to the Government, indicated that Mayanur, Sriramasamuthiram/ Silaipillayaputhur, Chinthalavadi, M.Puthur, Sirugamani, Musiri (West), Panayakurichi and Vittalapuram have enough shoals of sand. The Government has enumerated the proposed measures to protect the Rivers and the ecology while undertaking sand quarrying operations.
Direction to the State
43. The quarrying operations, even in those quarries where there are shoals of sand, must be undertaken only by abiding the norms and conditions of the environmental clearance. The quarry site shall be closed immediately after removing the available shoals of sand. The area and the depth of the quarry shall be in accordance with the permission granted by the environmental authorities. Such quarrying operations would be subject to the result of the Special Leave Petition pending before the Hon'ble Supreme Court in SLP No.2831 of 2018.
44. The State must take immediate measures to remove the approach roads and close the quarry sites at Thiruvasi, Kiliyanallur, Unniyur, Kariamankam, Alambadi, Manamedu. The removal of the approach roads and the closure of the sand quarry must be personally monitored by the Project Director.
45. The Government must undertake a scientific study with the help of experts to identify the mineral deposits and its exact location. The State must excavate the minerals only from the places identified by the experts and by following the conditions imposed by the environmental authorities. Interlinking roads inside the river must be removed to check the illegal mining and transportation of minerals. The levelling of roads inside the river shall be done on a phased manner and giving priority. The sand mining shall not be undertaken in respect of locations where illegal sand mining has already been carried out.
46. The State must ensure that the sand quarries would adhere to the norms regarding extent and depth. The boundary of the quarry shall be demarcated by following the procedure set-out under Clause 2 (ii) of the conditions imposed by the environmental authority.
47. The Project Director must ensure robust monitoring of the sand mining. In case of any violation of the conditions prescribed by the environmental authority, the same shall be reported by the field official to the Project Director. The Project Director must take immediate action for suspension of the quarrying operations pending enquiry.
48. The officer in-charge of the sand quarry must be made personally accountable for violation of any of the conditions. Both legal and departmental action should be taken against the officials indulging in illegal quarrying or excess quarrying in collusion with the lifting agents and transport operators.
49. The present procedure of engaging sand lifting contractors must be abolished. The lifting contractors must be appointed through e-tender by following a transparent procedure. The endeavour of the licensee must be either to hire or purchase necessary equipments for sand lifting from the quarry. The existing lifting contractors must be directed to backfill the pits at all quarry sites to level the quarried area and to avoid ponding and visual effect.
Need for Surveillance
50. The Court Commissioners have observed that clearance from the State Environment Impact Assessment Authority (SEIAA) has been routinely obtained for river sand mining without divulging the material factors like existence of Bridge, Water supply system etc. The SEIAA without conducting field inspection and cross checking the details permitted quarrying. There is no mechanism now to ascertain as to whether the conditions imposed by the SEIAA have been complied with by the licensee. This issue must be addressed by the Government and SEIAA. Before granting permission for the sites, where sand is available, the SEIAA must visit the place indicated in the application for sand mining. The boundaries of the site must be shown in the mine plan and excavation must be within the boundaries. The Project Director must fix the pucca permanent pillar boundaries for excavation. The Project Director must ensure that stones are erected at 50 metre intervals along the boundaries with the marking of Shoal height, River Bed Height and depth to be excavated. The State must streamline the entire process right from site selection to operation of quarry and supply of sand in an ecologically friendly and environmentally sustainable manner. The entire quarry sites must have CCTV. There must be IP cameras set up in all the poclains for monitoring the overloading. The State must include environmental experts from reputed Central/State Institutions preferably from Indian Institute of Technology to be part of the District Task Force. It must be the responsibility of the concerned District Collector to oversee, monitor and streamline the functioning of the sand quarrying. The Taluk and District level task force must be sensitized. The officials of the Public Works Department and others involved in the process must be given training periodically in relation to environmental and legal aspects of sand quarrying. The Government must fix liability on officials, who are violating the conditions of the clearance or permitting excess quarrying. The jurisdictional Revenue , Police, Geology and Transport department officials must be taken to task in case of illegal quarrying or transportation of sand without permission. The State Appellate Forum constituted by the order in G.O.Ms.No.27 Industries Department dated 17 February 2015 must be a vibrant body. The Government must set up a centralised control room to monitor sand quarrying operations, one at Chennai and the other at Trichy as undertaken in the affidavit. The Centralised Monitoring through CCTVs must be taken up through live streaming from the control room. There must be a Customer Care Centre to receive complaints and take action on such complaints. The action taken report must be sent to the complainant and it must be available on line.
51. The Government has undertaken to evolve an "APP" like "OLA Cabs"
and "UBER" to assist the sand lorries with GPS fixed in all such vehicles. The process must be implemented forthwith to check on illegal transportation of sand.
52. The Government must issue an order incorporating the measures to be taken to prevent the excess mining and illegal mining. It should cover all the aspects of the River sand mining for ensuring safe and orderly mining without affecting the environment and ecology and to ensure transparency and accountability in sand production and distribution. The Government Order must include all the measures indicated in the affidavit filed by the Principal Secretary to the Government for a foolproof system of mining in an ecologically friendly and environmentally sustainable manner.
53. The licence which is the subject matter in W.P.No.7960 of 2017 was issued without resorting to a transparent procedure. The licence is therefore quashed.
W.P.(MD)No.17531 of 2017Payment of Compensation
54. The illegal quarrying operation with the blessings of the authorities concerned contributed for making huge pits to the depth of 30 to 40 feet on the river bed of Cauvery flowing through the district of Karur. The Public Works Department also quarried sand in this area more than the permitted depth. The son of the petitioner drowned in the pit. The incident took place solely on account of the negligence and inaction of the officials of the Public Works and Revenue Department. The area is covered by the mining lease given to the Public Works Department for undertaking sand quarrying operations. The report submitted by the Advocate Commissioners clearly shows that mining operation was undertaken in the area beyond the permitted depth. The permission was to take one metre depth. However, sand was taken 30 to 40 feet below the water level and as a result, huge pit was found. The post-mortem report clearly shows that the death was on account of drowning. The petitioner is therefore justified in his contention that the State is liable to pay him compensation.
55. The deceased was 19 years. He was a third year student of Engineering in Computer Science at VSB Engineering College, Karur. He was a bright student. The petitioner lost his son at the age of 19 years. The hope of the petitioner that his son after getting employment would support the family is shattered on account of his untimely death. The State has not filed any counter affidavit in answer to the contentions taken in the affidavit filed in support of the writ petition for awarding compensation. There is nothing on record to disbelieve the case pleaded by the petitioner.
56. The old concept of maintainability of the writ petition under Article 226 of the Constitution for awarding compensation has undergone a sea change. The judicial concern now stands on the footing to provide emergent relief to the aggrieved rather than driving him to the Civil Court. The Courts have awarded compensation in Public Law without relegating the parties to the remedies available in Civil Law. We are therefore of the view that the claim is maintainable before this Court and that the petitioner is entitled to just compensation.
57. The next issue pertains to the quantum of compensation.
58. The multiplier method indicated in the Motor Vehicles Act is the safe method to assess the compensation in a case of this nature.
59. The issue before the Supreme Court in M.S.Grewal and another v. Deep Chand Sood and others [(2001) 8 SCC 151] was the legality of the claim for compensation on account of the drowning of children studying in 4th standard to 6th Standard. The Supreme Court while confirming the judgment of the High Court granting compensation approved the multiplier method for arriving at the quantum.
60. Most recently, in National Insurance Company Limited v. Pranay Sethi and others [2017 (3) Scale], the Hon'ble Supreme Court indicated the factors to be taken note of including future prospectus by adopting multiplier method, for arriving at a just compensation.
61. Since the age as on the date of death was 19, the applicable multiplier is 16. The deceased was a student of third year Engineering course. He would have completed the course within one year. Taking into account the judgment of the Supreme Court in Pranay Sethi (cited supra), indicating that while determining the income addition of 50% of the actual salary to be included towards future prospectus, we uniformly fix the monthly income at Rs.20,000/-. The annual income would be a sum of Rs.2,40,000/-. In case, it is multiplied by 16, the total amount would come to Rs.38,40,000/- (Rupees Thirty eight lakhs forty thousand only) If 1/3 is deducted, it would come to Rs.25,60,000/-. We add Rs.60,000/- on conventional head, namely loss of estate, loss of consortium and funeral expenses. The total amount would come to Rs.26,20,000/- lakhs. We fix the total compensation at Rs.26,00,000/- lakhs (Rupees Twenty six lakhs only) taking into account the entire background facts.
62. The State is vicariously liable for the acts and omissions of its servants.
63. We therefore direct the State to pay a sum of Rupees Twenty Six lakhs as compensation to the petitioner on account of the unfortunate death of his son. This incident should be an eye opener to the State. The State must act as a responsible body to protect the life of the citizens. The Payment shall be made by the first respondent within a period of eight weeks from the date of receipt of a copy of this order along with interest at 9% from the date of filing the writ petition.
64. We place on record our appreciation of the sincere and dedicated work done by the Court Commissioners and their valuable assistance for the disposal of the writ petitions.
Disposal:-
65. The writ petitions in W.P.Nos.4251, 14577, 15121, 8655, 13836, 16150, 15343, 11376 and 17143 of 2017 are disposed of as indicated above, subject to the result of the Special Leave Petition in SLP (C) No.2831 of 2017 pending before the Hon'ble Supreme Court of India. The writ petition in W.P.No.7960 of 2017 is allowed. The writ petition in W.P.No.17531 of 2017 is allowed by directing the State to pay a sum of Rupees Twenty Six lakhs as compensation to the petitioner. No costs. Consequently, connected miscellaneous petitions are closed.
To
1.The Chief Secretary to Government, Secretariat, St.George Fort, Chennai.
2.The District Collector, Collector Office, Trichy District.
3.The Assistant Director, Department of Geology and Mining, Collector Office, Trichy.
4.The Tahsildar, Srirangam, Trichy District.
5.The Project Director, Sand Mining Operation, Tiruchirapalli.
6.The Executive Engineer, Public Works Department, Mining and Monitoring Division, Tiruchirapalli.
.