Madras High Court
V.Muthukumaran vs The State Of Tamil Nadu
Bench: M.Sathyanarayanan, G.K.Ilanthiraiyan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 03.07.2018
DELIVERED ON : 18.07.2018
CORAM:
THE HON'BLE MR. JUSTICE M.SATHYANARAYANAN
AND
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.No.12182 of 2018
and WMP.Nos.14606 and 16750 of 2018
V.Muthukumaran .. Petitioner
Vs.
1.The State of Tamil Nadu,.
Rep by the Chief Secretary to Government,
Public Works Department,
Fort St.George, Chennai-600 009.
2.The Director of Geology and Mining,
Guindy, Chennai-600 032.
3.The District Collector,
Office of the Collectorate,
Ariyalur.
4.The Executive Engineer,
Public Works Department/WRD,
Mining and Monetary Division,.
Tanjore District.
5.The Principal Secretary and State Level
Environment Impact Assessment Authority,
3rd Floor, Panagal Building,
Jeenis Road, Saidapet,
Chennai-15. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the records of the 5th respondent culminating in the Environmental Clearance bearing Lr.No.SEIAATN/F.No.6476/EC/1(a)/3965/2017 dated 16.02.2018, quash the same and consequently direct the respondents to forbear from in any manner permitting or allowing sand quarrying operation of river sand from Kollidam River at SF.158(P), Thirumanur Village, Ariyalur Taluk.
(Prayer amended as per order dated 26.06.2018 made in WMP.No.18405 of 2018)
For Petitioner : Mr.L.Chandrakumar
For Respondents : Mr.Vijay Narayan,
Advocate General
assisted by
Mr.T.N.Rajagopal,
Government Pleader and
Mr.E.Manoharan,
Additional Govt. Pleader for R1 to R4
M/s.G.Hema.
Central Govt. Standing Counsel for R5
O R D E R
M.SATHYANARAYANAN, J.
The present Writ Petition is field as a Public Interest Litigation by a resident of Kamarajar Nagar, Thirumanur Village, Ariyalur Taluk and District and according to him, main source of water supply/amenity for the entire Ariyalur District is from Kollidam river and on the northern bank of the said river, there is water source for human consumption, agricultural and other activities. The petitioner, being a Public Interest Litigant, claims to be a practicing Advocate and he would aver among other things that the operation of the sand quarry in SF.No.158(P) of Thirumanur Village, Ariyalur Taluk and District would definitely result in evaporation of ground water, environmental and ecological disasters for the reason that in the entire stretch between Grand Anaicut (Kallanai) and Lower Anaicut through Kollidam, as many as 30 schemes are in force for the purpose of drinking water to cater to the residents and that apart, there are 5229 bore wells dug in patta lands for irrigation purposes and the average daily consumption of water would be around 30,000 crores of litres.
2. It is further averred by the petitioner that in respect of Thirumanur Village and adjacent places, namely T.Palur, Sendurai, Andimadam, Jayamkondan, Ariyalur etc., average consumption would be around 30 MLD per day. The petitioner, on becoming aware of the fact that the said sand quarry would have serious impact on the livelihood of farmers and other residents, submitted a representation dated 03.04.2018, requesting not to operate sand quarry in the said survey number, which would definitely result in wounding and affecting public sentiments and it was also proceeded by peaceful protest and demonstration by general public. It is also contended by the petitioner that the Environmental Clearance accorded by the fifth respondent dated 16.02.2018 is without due and proper application of mind for the reason that no personal inspection has been carried out and the said authority merely went by the materials placed by the Public Works Department and the documents submitted before them are nothing but self-serving documents.
3. The petitioner would further state that one Thiru.Sachithanandhan has filed W.P(MD).No.10315 of 2018, praying for issuance of a Writ of Mandamus forbearing the respondents from quarrying river sand in S.No.1A, Block No.1, Vilangudi Village of Kollidam River and it was entertained and an order of ad-interim injunction was granted restraining the respondents from quarrying in the said survey number, vide order dated 28.04.2018 made in WMP(MD).No.9338 of 2018 in W.P.(MD)No.10315 of 2018 and the said interim order is periodically extended.
4. Grievance expressed by the petitioner is that despite serious nature of the quarrying operation and sentiments of the public being brought to the knowledge of the concerned authorities/official respondents, they refuse to take cognizance, but interested in over exploitation of natural resources and therefore, came forward to file this Writ Petition.
5. The Writ Petition was entertained on 09.05.2018 and interim orders were granted and it was periodically extended. The writ petitioner, pending disposal of the writ petition, also filed WMP.No.16750 of 2018, praying for an order of ad-interim direction directing the respondents to forthwith appoint an Expert from National Environmental Engineering Research Institute (NEERI) to examine and submit a report about the visibility and status as to the quarrying operations in the said survey number.
6. The official respondents herein filed WMP.No.14606 of 2018 for vacating the order of ad-interim injunction granted and in the counter affidavit of the fourth respondent, filed in support of the said petition, it is averred that ever since from the year 2003, entire sand quarry operations had been taken over by the State through Public Works Department and in terms of Rule 38-A of the Tamil Nadu Minor Mineral Concession Rules, 1959, the process of sand quarrying is to be done only by the State Government. It is also pointed out in the counter affidavit that all the mandatory formalities before starting and operating sand quarry has been strictly complied with and relevant documents have been placed before the fifth respondent, who is the authority constituted as per the notification issued under the Environment (Protection) Act, 1986 and the Appraisal Committee of the fifth respondent, after thorough and strict scrutiny of the entire materials, has accorded Environmental Clearance and after the said clearance, the Tamil Nadu Pollution Control Board has also accorded its consent and as such, it cannot be said that the operation of the sand quarry would lead to environmental dehydration.
7. It is further stated in the counter affidavit of the fourth respondent that pendency of W.P(MD)No.4251 of 2017, additional safety measures have also been put in place and in order to ensure fairness and transparency, a Mobile Application has also been introduced by name TN Sand and a web-portal, namely www.tnsand.in has also been put in place and booking can be done through on-line by the public and lorry owners. It is further stated in the said counter affidavit that about 70,000 vehicles have been registered and the said vehicles as well as excavators have been fitted with GPS and it is also ensured that quarrying operations are restricted to a depth of 1 meter from the river bed and it also commenced on 04.05.2018. The fourth respondent has raised a legal plea that the State Government had incorporated Rules 38A, 38B, 38C and 38D of the Tamil Nadu Minor Mineral Concession Rules, 1959 to regulate sand quarrying done in the State and apart from adhering to the said Rules, strict compliance to the notification issued by the Environment Protection Act, 1986 as well as the directions issued by this Court in writ petitions had been done. It is also submitted that there were public protests and a Peace Committee meeting was also held by Revenue Officials, wherein repeated assurances were given that sand quarrying operations would be done strictly in accordance with the Environmental Clearance accorded by the fifth respondent and as such, the apprehension expressed by the petitioner is wholly unsustainable and therefore, prayed for dismissal of this writ petition.
8. Arguments were concluded and orders were reserved on 13.06.2018. Mr.L.Chandrakumar, learned counsel appearing for the petitioner made a mention before this Court, after this Court had reserved orders, by submitting that the petitioner has filed a petition in WMP.No.18405 of 2018 to amend the prayer, challenging the Environmental Clearance granted by the fifth respondent and therefore, the case was re-opened on 26.06.2018. The said amendment petition was ordered and after carrying out amendment in the prayer, arguments were advanced and orders were reserved on 03.07.2018.
9. Mr.L.Chandrakumar, learned counsel appearing for the petitioner, apart from reiterating the submission made earlier, made the following submissions:
(i) Since the abandoned quarries, which were in operation, lies within short distance i.e., less than 500 meters, Environmental Clearance ought not to have been accorded by concerned authority of the State Government and admittedly, it has not been done and the fifth respondent, without taking into consideration the abandoned quarries as well as the existing quarries, merely went by the records submitted by Public Works Department, without causing personal inspection and it is also in violation of Notification No.S.O.141(E) dated 15.01.2016 passed by the Ministry of Environment, Forest and Climate Change.
(ii) The abandoned as well as existing mines form a cluster, totally covering more than 60 acres and after thought full public hearing, it is for the Ministry of Environment, Forest and Climate Change to take a call and admittedly it has not been done so.
(iii) The fifth respondent merely went by the records on the pretext that the documents/materials submitted by the Public Works Department are sterling in quality, overlooking the fact that the State has started indulging in commercial ventures at the cost of the environment and while doing so, relevant and necessary factors including public sentiments have not been taken into account and therefore, prays for quashment of the same.
10. Per contra, Mr.Vijay Narayan, learned Advocate General assisted by Mr.T.N.Rajagopalan, learned Government Pleader and Mr.E.Manoharan, learned Additional Government Pleader appearing for the respondents has invited the attention of this Court to the Notification No.S.O.141(E) dated 15.01.2016 passed by the Ministry of Environment, Forest and Climate Change and would submit that Environmental Clearance by the Ministry of Environment, Forest and Climate Change is not all necessary for the reason that the present quarry does not exist in the cluster area and except making bald averments, no substantial materials have been submitted to probablise the said version. It is the further submission of the learned Advocate General that the quarry is in operation for nearly 2 months and all of a sudden, the petitioner thought fit to invoke the jurisdiction of this Court to stall the quarrying operations and also pointed out that on account of the sudden stoppage of quarrying operations relating to sand and on account of various interim orders passed by this Court, Real Estate/Construction Industry had come to a stand still and many industrial projects could not be completed on schedule. The learned Advocate General has drawn the attention of this Court to the Environmental Clearance dated 16.12.2018 accorded by the fifth respondent and would submit that 80 Administrative Conditions, 68 Environmental Conditions and 7 Specific Conditions have been put forward by the fifth respondent and since the said authority, in exercise of it's statutory function, has accorded such a permission, it may not be lightly interfered with.
11. The learned Advocate General, on instructions, would submit that though there were some infractions, the State Government took a conscious decision to eliminate the same and therefore, a website/webportal has also been created and registered 70,000 vehicles/lorries etc., and also excavators and all of them are fitted with GPS to track their movements and that apart, Closed Circuit Televisions (CCTVs) were also installed on the quarrying sites and 24 Hour monitoring mechanism has also been put in place and as such, the apprehension expressed by the petitioner is wholly unfounded. It is the further submission of the learned Advocate General that public sentiments and environmental aspects have been taken into consideration by the State Government and steps/measures are already taken to prevent illegal quarrying and over exploitation. It is also the submission of the learned Advocate General that the residents on the banks of Kollidam river are also indulging in illegal quarrying and since the length of the river bed is more, some difficulty being experienced to prevent illegal quarrying and undertakes that full-fledged effective mechanism would be in place to prevent illegal quarrying.
12. In sum and substance, it is the submission of the learned Advocate General that the quarrying operations has commenced recently during May, 2018 and at the threshold, one cannot presume that illegal quarrying is going to take place and on instructions, would submit that this Court can also appoint an independent monitoring mechanism to ensure strict compliance of the conditions imposed by the fifth respondent in according Environmental Clearance and would further contend that the petitioner has no real public interest, but espousing the cause of some private individuals, who are indulging in illegal quarrying operations and prays for dismissal of this Writ Petition.
13. This Court paid it's best attention and anxious consideration to the submissions made by the learned counsel appearing for the petitioner, learned Advocate General and also scanned and perused the entire materials placed before it.
14. The Ministry of Environment, Forest and Climate Change of the Government of India had issued a Notification in S.O.141(E) dated 15.01.2016 in and by which the District Level Environment Impact Assessment Authority, after amendment, came into being. The said notification reads that the Ministry of Environment, Forest and Climate Change, in consultation with the State Government, has prepared Guidelines on Sustainable Sand Mining detailing the provisions on environmental clearance for cluster, creation of District Environment Impact Assessment Authority and proper monitoring of sand mining using information technology and information technology enabled services to track the mined out mineral from source to destination. The said notification also provides for Screening, Scoping and Appraisal Committees in respect of projects or activity falling in Category 'A', 'B1 and B2' and 'B2' projects. Appendix XI to the said notification speaks about Procedure for Environmental Clearance for Mining of Minor Minerals including Cluster.
15. The primordial submission made by the learned counsel appearing for the petitioner is that there are several sand quarries, which were in existence, as well as the present sand quarry lies within close proximity to each other and as such, the Environmental Clearance ought to have been awarded by the Expert Appraisal Committee at the Central Government level and since it has not been done, quarrying operations being going on in the site in question should be halted and it should be closed immediately and that apart, the learned counsel appearing for the petitioner has also contended as to the environmental aspects regarding water source and ecological disaster, being caused on account of running the said sand quarry.
16. In response to the same, it is the submission of the learned Advocate General that in terms of Clause-(6) to Appendix-XI of the Notification in S.O.141(E) dated 15.01.2016, issued by the Ministry of Environment, Forest and Climate Change, a cluster shall be formed when the distance between the peripheries of one lease is less than 500 meters from the periphery of other lease in a homogeneous mineral area and if the area is more than 50 Hectares, it falls within Category 'A' and therefore, clearance shall be accorded by the Environmental Appraisal Committee of the Ministry of Environment, Forest and Climate Change. It is the submission of the learned counsel appearing for the petitioner that admittedly, the mining lease area is only 16 Hectares and as per the said Appendix, clearance should be accorded by the fifth respondent, nominated by the Ministry of Environment, Forest and Climate Change and as such, it is not necessary for the Environment Appraisal Committee to accord clearance.
17. Insofar as the other point urged by the learned counsel appearing for the petitioner as to the impact on account of quarrying operations in respect of ground water source and that it lies within the prohibited distance, it is the submission of the learned Advocate General that except stating that the present sand quarry lies within the prohibited distance, not even an iota of material has been produced to probablize/substantiate the same and drawn the attention of this Court to the conditions imposed by the fifth respondent and would submit that all the conditions imposed by the fifth respondent would be scrupulously complied with and this Court may also appoint an independent monitoring mechanism for the purpose of finding out whether the conditions imposed by the fifth respondent are scrupulously and strictly adhered to.
18. A perusal of the affidavit filed in support of WMP.No.18405 of 2018 did not give any specific details as to the cluster of the sand quarries as pleaded by the learned counsel appearing for the petitioner. A perusal of the additional typed set of papers filed on behalf of the petitioner would disclose that permission to quarry sand was granted in S.F.No.249/1 part of Vadugarpalayam Village dated 30.11.2012, S.F.No.158 part of Thirumanur Village dated 16.03.2012, S.F.No.138 Part of Vizhupannakurichi Village dated 09.06.2016 and S.F.No.311 part of Sullankudi Village dated 04.03.2015 and according to the petitioner, those quarries were in operation in Kollidam river bed and the impugned Environmental Clearance accorded by the fifth respondent dated 16.02.2018 is in respect of S.No.158 Part in Thirumanur Village, Ariyalur Taluk and District, admeasuring to an extent of 16 Hectares and since all the sand quarries are within the cluster area, Expert Appraisal Committee of the Ministry of Environment, Forest and Climate Change ought to have accorded permission and not the fifth respondent.
19. A perusal of the impugned Environmental Clearance dated 16.02.2018 accorded by the fifth respondent would disclose that the prononent has furnished a sworn affidavit in a non-judicial stamp paper and it is relevant to extract the same:
1.No quarries are located within 500 m radius from periphery of the proposed quarry site.
2.We declare that there is no Temple, Church, Mosque, Historical Monuments, Burial ground/other habitations/found within 500 m radius of our quarry site.
3.We declare that we shall not create any hindrance to the nearby villagers during the quarry operation and while transporting the mined out material to needy customers.
4. No bridges, culverts, cross masonries, water head works, pumping wells or any other civil structures within 500 m radius of the proposed quarry site.
The proposal was considered and examined by SEIAA based on the project documents furnished and the explanation made before the Committee in it's 98th Meeting held on 27.11.2017, has recommended for grant of environmental clearance for the said quarry project. The proposal was placed before the fifth respondent in it's 274th Meeting held on 16.02.2018 and based on the project document furnished, the fifth respondent has recommended to issue environmental clearance to the said project under the provisions of Environment Impact Assessment Notification, 2006, subject to strict compliance of the terms and conditions.
20. As already pointed out, the fifth respondent has imposed 80 Administrative Conditions, 68 Environmental Conditions and 7 Specific Conditions, while according Environmental Clearance. As per Administrative Condition No.51, project prononent shall submit six monthly reports on the status of compliance of the stipulated environmental clearance conditions including results of monitored data (both in hard copies as well as by e-mail) to the Ministry of Environment and Forest, its Regional Office, Chennai, the respective Zonal Office of Central Pollution Control Board, SEIAA, Tamil Nadu/fifth respondent as well as the State Pollution Control Board. As per Administrative Condition No.55, the fifth respondent also got power to modify/alter the conditions or stipulate any further condition in the interest of environment protection. It is also relevant to extract Administrative Condition Nos.56 and 57:
56. The SEIAA, TN may cancel the environmental clearance granted to this project under the provisions of EIA Notification, 2006, if, at any stage of the validity of this environmental clearance, if it is found or if it comes to the knowledge of this SEIAA, TN that the project prononent has deliberately concealed and/or submitted false or misleading information of inadequate data for obtaining the environmental clearance.
57. Failure to comply with any of the conditions mentioned above may result in withdrawal of this clearance and attract action under the provisions of the Environment (Protection) Act, 1986.
21. It is to be noted at this juncture that the fifth respondent has been constituted as per the provisions of the Environment (Protection) Act, 1986 and the said authority had granted clearance after taking note of all the materials and therefore, at the threshold, this Court is not in a position to arrive at a conclusion that the Environmental Clearance accorded by the fifth respondent in respect of the sand quarry in question has been done without due and proper application of mind to the relevant materials.
22. It is well settled position of law that there is always a presumption in favour of administration that it exercises powers in good faith and for public benefit.
23. As of now, no tenable material has been produced by the petitioner to substantiate/probablise his case that the Environmental Clearance accorded by the fifth respondent is without adhering to the relevant norms and clearances.
24. In Deepak Kumar and Others v. State of Haryana and Others [(2012) 4 SCC 629], auction notice was issued by the Department of Mines and Geology, Government of Haryana, proposing to auction the extraction of minor minerals, boulders, gravel and sand quarries and the validity of the auction came up for consideration and it is relevant to extract the following paragraphs of the said decision:
8. We have no materials before us to come to the conclusion that the removal of minor minerals, boulders, gravel, sand quarries, etc. covered by the auction notices dated 3-6-2011 and 8-8-2011, in the places notified therein and also in the riverbeds of Yamuna, Ghaggar, Tangri, Markanda, Krishnavati River basin, Dohan River basin, etc. would not cause environmental degradation or threat to the biodiversity, destroy riverine vegetation, cause erosion, pollute water sources, etc. Sand mining on either side of the rivers, upstream and instream, is one of the causes for environmental degradation and also a threat to the biodiversity. Over the years, India's rivers and riparian ecology have been badly affected by the alarming rate of unrestricted sand mining which damage the ecosystem of rivers and the safety of bridges, weakening of riverbeds, destruction of natural habitats of organisms living on the riverbeds, affects fish breeding and migration, spells disaster for the conservation of many bird species, increases saline water in the rivers, etc.
9. Extraction of alluvial material from within or near a stream bed 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.
10. We are expressing our deep concern since we are faced with a situation where the auction notices dated 3-6-2011 and 8-8-2011 have permitted quarrying, mining and removal of sand from instream and upstream of several rivers, which may have serious environmental impact on ephemeral, seasonal and perennial rivers and riverbeds and sand extraction may have an adverse effect on biodiversity as well. Further, it may also lead to bed degradation and sedimentation having a negative effect on the aquatic life. The Hon'ble Supreme Court in the said judgment has suggested certain measures/recommendations and it is relevant to extract some of the recommendations:
19...
4.6.Creation of separate corpus for reclamation/rehabilitation of mines of minor minerals Mining of minor minerals, in our country, is by and large an unorganised sector and is practised in haphazard and unscientific manner. At times, the size of the leasehold is also too small to address the issue of reclamation and rehabilitation of mined out areas. It may, therefore, be desirable that before the concept of mine closure plan for minor minerals is adopted, the existing abandoned mines may be reclaimed and rehabilitated with the involvement of the State Government. There is thus, a need to create a separate corpus, which may be utilised for reclamation and rehabilitation of mined out areas. The respective State Governments may work out a suitable mechanism for creation of such corpus on the polluter pays principle. An organisational structure may also need to be created for undertaking and monitoring these activities.
4.7.Depth of mining Mining of minerals, whether major or minor have a direct bearing on the hydrological regime of the area. Besides affecting the availability of water as a resource, it also affects the quality of water through direct run of going into the surface water bodies and infiltration/leaching into groundwater. Further, groundwater withdrawal, dewatering of water from mine-pit and diversion of surface water may cause surface and subsurface hydrologic systems to dry up. An ideal situation would require that quarrying should be restricted to unsaturated zone only above the phreatic water table and should not intersect the groundwater table at any point of time. However, from the point of view of mineral conservation, it may not be desirable to impose blanket ban on mining operation below groundwater table.
It is, therefore, recommended that detailed hydrogeological report should be prepared in respect of any mining operation for minor minerals to be undertaken below groundwater table. Based on the findings of the study so undertaken and the comments/recommendations of the Central Groundwater Authority/State Groundwater Board, a decision regarding restriction on depth of mining for any area should be taken on case-to-case basis.
4.9.Riverbed mining 4.9.1. Environment damage being caused by unregulated riverbed mining of sand, bazari and boulders is attracting considerable attention including in the courts. The following recommendations are therefore made for the riverbed mining:
(a) In the case of mining leases for riverbed sand mining, specific river stretches should be identified and mining permits/lease should be granted stretchwise, so that the requisite safeguard measures are duly implemented and are effectively monitored by the respective Regulatory Authorities.
(b) The depth of mining may be restricted to 3m/water level, whichever is less.
(c) For carrying out mining in proximity to any bridge and/or embankment, appropriate safety zone should be worked out on case-to-case basis, taking into account the structural parameters, locational aspects, flow rate, etc. and no mining should be carried out in the safety zone so worked out.
21. Further, it was also recommended that the States, Union Territories would see that mining of minor minerals is subjected to simpler but strict regulatory regime and carried out only under an approved framework of mining plan, which should provide for reclamation and rehabilitation of mined out areas. Mining plan should take note of the level of production, level of mechanisation, type of machinery used in the mining of minor minerals, quantity of diesel consumption, the number of trees uprooted, export and import of mining minerals, environmental impact, restoration of flora and host of other matters referred to in the 2010 Rules. A proper framework has also to be evolved on cluster of mining of minor minerals for which there must be a Regional Environmental Management Plan. Another important decision taken was that while granting of mining leases by the respective State Governments, location of any eco-fragile zone(s) within the impact zone of the proposed mining area, the linked rules/notifications governing such zones and the judicial pronouncements, if any, need to be duly noted.
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.
25. There should be inclusive growth of the economy, but it cannot be at the sacrifice of the environment.
26. In Narmada Bachao Andolan v. Union of India [(2000) 10 SCC 664], the Hon'ble Supreme Court of India observed that Environmental and ecological consideration must, of course, be given due consideration but only with proper channelization of developmental activities ecology and environment can be enhanced.... Water is the basic need for the survival of human being and is part of the right to life and human rights as enshrined in Article 21 of the Constitution of India and can be served only by providing source of water where there is none...
27. There must be a sustainable or balanced development and balance is to be struck between continuous evaluation and development. There must be preservation of valued resources and protection from unnecessary abuse of environmental and natural resources and there must be a balance approach as to the sustainable development.
28. In Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group and Others [(2006) 3 SCC 434], the Hon'ble Supreme Court of India, in paras 251 and 277, had observed as follows:
251...The harmonization of the two needs has led to the concept of sustainable development, so such that is has become the most significant and focal point of environmental legislation and judicial decisions relating to the same. Sustainable development, simply but, is a process in which development can be sustained over generations... Making the concept of sustainable development operational for public policies raises important challenges that involve complex synergies and trade offs.
277. Consideration of ecological aspects from the Court's point of view cannot be one sided. It depends on the fact situation in each case. Whereas the Court would take a very strict view as regards setting up of an industry which is of hazardous nature but such a strict construction may not be resorted to in the case of country planning.
29. In Deepak Kumar's case (cited supra), the Hon'ble Supreme Court of India has also directed that all the States and Environment Ministry of Forest, shall ensure strict compliance of the directions given by it. Therefore, it is obligatory to obtain Environmental Clearance from the competent authority in accordance with law before commencing mining operations and such clearance is also necessary to analyze and determine whether or not a particular developmental activity, which is proposed to be carried out, creates serious/irreversible threat to the environment. Thus a balance has to be struck between the environment and ecological aspect and industrialization which includes mining.
30. In Indian Council for Enviro-Legal Action and Others v. Union of India and Others [AIR 1996 SC 1446], the Hon'ble Supreme Court of India has noted with reference to failure on the part of the State and seriousness exhibited by them with regard to implementation of the environmental laws.
31. The underlining principle runs from the said decisions is that there must be a balance between reformation, development, environmental and ecological issues.
32. Let this Court also looks into certain enactments. The Hon'ble Supreme Court of India in State of Tamil Nadu v. M/s.Hindu Stone [1981 (2) SCC 205] has observed that the object of The Mines and Minerals (Development and Regulation Act) 1957 is to conserve the minerals and the prudent and discriminative exploitation of minerals, especially in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies.
33. The Tamil Nadu Minor Mineral Concession Rules, 1959 came into being in exercise of powers conferred under Section 15 of the above said Central Act and it is relevant to extract the following Sections:
38-A. Quarrying of sand by the State Government:- Notwithstanding anything contained in these Rules, or any order made or action taken hereunder or any judgment or decree or order of any Court, all existing leases for quarrying sand in Government lands and permissions/leases granted in ryotrwari lands shall cease to be effective on and from the date of coming into force of this Rule and the right to exploit sand in the State shall vest with the State Government to the exclusion of others. The proportionate lease amount for the unexpired period of the lease and the unadjusted seigniorage fe, if any, will be refunded.
42. Submission of environment clearance for the grant of quarry lease for minor minerals including Granite.-
(i) The approved mining plan shall be forwarded to the applicant for obtaining environment clearance from the State Level Environment Impact Assessment Authority or the Ministry of Environment and Forests, as the case may be.
(ii) On submission of approved mining plan and environment clearance from the said authorities, the Government or the District Collector, as the case may be.
(iii) Where quarrying operations for Minor Minerals including granites have been undertaken before the commencement of these rules without environment clearance, such holder of minor mineral including granite leases shall submit the environment clearance within six hundred and thirty days from the date of commencement of these rules.
(iv) When the existing holders of Minor Mineral leases including granite failed, to submit the environment clearance within the stipulated period, the District Collector or the Government, as the case may be, shall cancel the lease after giving an opportunity of personal hearing.
34. Vires of Rule 38-A of the Tamil Nadu Minor Mineral Concession Rules, 1959 has also been upheld by a Division Bench of this Court in the decision in Aminjikarai Lorry Owner Welfare Association v. State of Tamil Nadu [2005 (3) LW66 = 2005 (4) MLJ 523 (Mad)].
35. The petitioner has also placed reliance upon the decision rendered by a Division Bench of this Court dated 01.04.2005 made in W.P.No.1833 of 2005 etc., batch [S.Ramamirtham v. State of Tamil Nadu and Others] and the matter in issue pertains to New Veeranam Extension Project to extract sub-surface water by tapping the same from Kollidam river bed and taking to Chennai, in order to provide drinking water to the people, which is the primary need of the people and the said project was put to challenge by way of Public Interest Litigation. In the said decision, the Division Bench of this Court has also gone into opinion expressed by the Expert Committee as to the said project and by placing reliance upon the decision of the Hon'ble Supreme Court of India in Balco Employees' Union v. Union of India [2002 (2) SCC 333], observed that the Court cannot sit over Expert Committee to find out some lacuna in the Expert Committee Report unless it is satisfied that there is illegality in the decision itself.
36. It is also brought to the knowledge of this Court by the learned Advocate General that in the past, there were some violations/infractions in sand quarry operations and in order to set right the same, an I.A.S. Officer has been appointed as the Project Director, Sand (Mining) and a web-portal has also been created and CCTV cameras were also installed and Centralized Monitoring System has been put in place to monitor the Government operated sand quarries in the State and that apart, lorries and excavators used are also GPS tagged and therefore, there will be continuous monitoring of quarrying operations and transportation of sand and necessary effective steps are also being taken to prevent illegal quarrying of sand on the part of some persons, who are residents of the villages, which lie in close proximity to the river beds and therefore, pleaded that the quarrying operations cannot be completely stalled.
37. It is also pointed out by the learned Advocate General that in terms of Section 38-A of the Tamil Nadu Minor Mineral Concession Rules, 1959, the State Government is entitled to run sand quarries in public interest. It is also contended by the learned Advocate General that substitute for river sand in the form of M-Sand has also been found and several M-Sand factories are also started functioning in the State and necessary measures are also put in place to monitor the production of quality M-Sandand it shows that the State Government is having concern over environment aspect and as such, it's bonafide cannot be doubted.
38. The petitioner, as of now, has failed to produce any tenable and worthwhile material as to the cluster of sand quarries and except making a bald averment that the present sand quarry lies within the prohibited distance, has not substantiated/probablised the same.
39. This Court may presume as per Illustration (e) to Section 114 of the Indian Evidence Act, 1862 that the judicial and official acts have been regularly performed and as such, it cannot presume that the State Government, without taking into consideration the environment aspects, is indulging in sand quarry operations, but at the same time, the State Government is under obligation to protect the environment and prevent ecological disaster and it shall adhere to/comply with all the directions imposed by the fifth respondent, vide it's clearance dated 16.03.2018 and if any infraction/violation is noted, it is always open to the petitioner and other public activists to bring it to the knowledge of the concerned authorities and Administrative Condition Nos.56 to 57 imposed by the fifth respondent also take care of the same.
40. This Court, taking note of the concern expressed by the petitioner and also the submission made by the learned Advocate General, on instructions, that this Court can also put in place, an independent monitoring mechanism, is of the considered view that a Monitoring Committee is to be put in place to oversee the sand quarry operations. Therefore, a Monitoring Committee is constituted with the following members:
(i) Dr.A.Arun Thamburaj, I.A.S., Project Director (Sand Mining), Tamil Nadu.
(ii) Mr.Mohan, Professor and Head of the Department, Department of Environment and Water Studies.
Indian Institute of Technology (I.I.T), Sardar Patel Road, Opp. to C.L.R.I., Adyar, Chennai-600 036.
(iii) Dr.S.Ganapathy Venkata Subramaniam, Professor, Department of Environment Studies, Anna University, Opp. to Gandhi Mandapam, Sardar Patel Road, Guindy, Chennai-600 025.
(iv) Dr.V.Pugazhendi, Senior Hydro Geologist (Retd.) TWAD Board, Chennai.
The Monitoring Committee shall cause regular and surprise inspection of the quarry in question and submit a periodical report to this Court. The Monitoring Committee shall also utilize/use all available scientific techniques including Google Earth Maps and also Mining Surveillance System (MSS) developed by Indian Bureau of Mines (IBM) in coordination with Bhaskaracharya Institute of Space Application and Geo-Informatics (BISAG), Gandhinagar.
41. In the result, this Writ Petition is dismissed, subject to the above directions. No costs. Consequently, connected miscellaneous petitions are closed. Call on 16.08.2018 for submission of the report with annexures by the Monitoring Committee.
42. Since two of the Monitoring Committee members are already in service, necessary honororium/expenses and other incidental expenses relating to their visits shall be borne by the Public Works Department. Insofar as the fourth respondent, namely Dr.V.Pugazhendi, who is a retired TWAD Board personnel, Rs.15,000/- (Rupees Fifteen Thousand Only) per visit, apart from travelling and other incidental expenses, shall be paid. The said Committee is also entitled to make periodical or surprise visits to the quarry in question and submit periodical Status Reports, as ordered by this Court in this order.
[M.S.N., J.] [G.K.I., J.]
18.07.2018
Index : No
Internet : Yes
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To
1.The Chief Secretary to Government,
The State of Tamil Nadu,.
Public Works Department,
Fort St.George, Chennai-600 009.
2.The Director of Geology and Mining,
Guindy, Chennai-600 032.
3.The District Collector,
Office of the Collectorate,
Ariyalur.
4.The Executive Engineer,
Public Works Department/WRD,
Mining and Monetary Division,.
Tanjore District.
5.The Principal Secretary and State Level
Environment Impact Assessment Authority,
3rd Floor, Panagal Building,
Jeenis Road, Saidapet,
Chennai-15.
Copy to:
(i) Dr.A.Arun Thamburaj, I.A.S.,
Project Director (Sand Mining),
Tamil Nadu.
(ii) Mr.Mohan,
Professor and Head of the Department,
Department of Environment and Water Studies.
Indian Institute of Technology (I.I.T),
Sardar Patel Road, Opp. to C.L.R.I.,
Adyar, Chennai-600 036.
(iii) Dr.S.Ganapathy Venkata Subramaniam,
Professor, Department of Environment Studies,
Anna University,
Opp. to Gandhi Mandapam,
Sardar Patel Road, Guindy, Chennai-600 025.
(iv) Dr.V.Pugazhendi,
Senior Hydro Geologist (Retd.)
TWAD Board, Chennai.
M.SATHYANARAYANAN, J.,
and
G.K.ILANTHIRAIYAN, J.
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Order in
W.P.No.12182 of 2018
18.07.2018