Madras High Court
R.Subramani vs The Principal Secretary on 28 November, 2019
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan, B.Pugalendhi
WP(MD)No.11785 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 29.08.2019
PRONOUNCED ON : 28.11.2019
CORAM:
THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN
and
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P.(MD)No.11785 of 2019
R.Subramani ... Petitioner
Vs.
1.The Principal Secretary
Pubic Works Department,
Secretariat,
Namakkal Kavignar Maligai,
Chennai.
2.The Chief Engineer,
Pubic Works Department,
Trichy.
3.The Executive Engineer,
River Conservation Division,
Public Works Department,
Chennai.
4.The Project Director,
Mines and Monitoring Division,
Public Works Department,
Trichy.
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WP(MD)No.11785 of 2019
5.The Executive Engineer,
Mines and Monitoring Division,
Public Works Department,
Trichy.
6.The Junior Engineer,
Public Works Department,
Upper Anaicut, Mukkombu,
Trichy District.
7.The District Collector,
Collectorate, Tiruchirappali.
8.The Revenue Divisional Officer,
Musiri Revenue Division,
Musiri – 621 211,
Trichy District.
9.The Thasildar,
Musiri Taluk,
Musiri, Trichy District. .... Respondents
Prayer: Writ Petition filed under Article 226 of the
Constitution of India praying for the issuance of a Writ of
Mandamus directing the respondents to check the operation of
proposed sand quarrying in Cauvery river at Manjakorai in
Gunaseelam Revenue village, Musiri Taluk, Trichy District at
once based on the petitioner's representation dated 06.04.2019.
For Petitioner : Mr.P.Ganapathisubramanian
For Respondents : Mr.K.Chellapandian,
Additional Advocate General,
assisted by
Mr.A.K.Baskarapandian
Special Government Pleader
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WP(MD)No.11785 of 2019
ORDER
(Order of the Court was made by B.PUGALENDHI, J.) This writ petition styled as Public Interest Petition is filed by a resident of Attalapatti village in Thathaiyangarpettai Panchayt Union, situated on the bank of river Cauvery, for a Writ of Mandamus, directing the respondent to check the operation of the proposed sand quarry in River Cauvery at Manjakorai in Gunaseelam Revenue Village, Musiri Taluk, Trichy District, by considering his representation dated 06.04.2019.
2.According to the writ petitioner, the prime livelihood of the village is agriculture and the source of water is river Cauvery. Around 7000 acres of land are irrigated by using Cauvery water in Musiri Panchayat Union and in view of the rampant mining activities across the river Cauvery, the ground water level is affected. There are several drinking water schemes implemented in Perugamani and Pettavaithalai villages and the drinking water is supplied by TWAD Board to various villages. If the quarry operation is permitted, the banks of 3/24 http://www.judis.nic.in WP(MD)No.11785 of 2019 river Cauvery would be damaged and it would ultimately damage the structure of Anaicut. In view of the proposed sand quarry, the entire environment and bio diversity of his village would be affected. The writ petitioner also requested for appointing an Advocate Commissioner, by this Court, to inspect the proposed sand quarry site and to file a detailed report. In support of his contention, he also relied upon the reports of the Advocate Commissioner in WP(MD)No.9336 of 2015 and WP(MD)No.16150 of 2017.
3.The fifth respondent viz., the Executive Engineer, Mining and Monitoring Division, Public Works Department, Trichy, filed a counter affidavit on 29.08.2019 that the sand quarry proposal to quarry the sand in river Cauvery in Survey No.253 (part) over an extent of 24.00.0 hectors in Gunaseelam Village, Musiri Taluk, Trichy District was submitted by the Executive Engineer, Public Works Department to the District Collector, Trichy. Based on that proposal, a joint inspection was also conducted by the Committee consisting of, the Revenue Divisional Officer, Musiri, the Executive Engineer, TWAD Board, the Executive Engineer, PWD and the Assistant Director of Geology and Mining 4/24 http://www.judis.nic.in WP(MD)No.11785 of 2019 Department on the directions of the District Collector and this Committee headed by the Revenue Divisional Officer has also recommended the District Collector, Trichy, for sand quarry at the proposed site. Based on this recommendation, the District Collector, Trichy, on 06.06.2018, issued a letter mentioning the precise area and the fifth respondent has also submitted a mining plan approved by the Assistant Director of Geology and Mining, Tiruchirappali, on 22.06.2018. The fifth respondent has also filed an application before the State Level Environment Impact Assessment Authority [SEIAA] and SEIAA has also granted environmental clearance vide letter No.SEIAA/TN/F.No6638/Ec/1(a)/3989/2018, dated 10.08.2018 for quarrying 5,04,452 M3 of sand in the proposed quarry site. This environmental clearance was also duly advertised in two newspapers on 08.09.2018, calling upon the public objections and as per clause 37 of the environmental clearance order dated 10.08.2018, any objection to that order, can be made only before the Hon’ble National Green Tribunal as per Section 16 of the National Green Tribunal Act, 2010, by way of an appeal. 5/24 http://www.judis.nic.in WP(MD)No.11785 of 2019
4.In fact, according to the Department, for conducting quarry operation in S.No.253(part)in Gunaseelam village for an area of 23.00.0 hectares for a period three years, an environmental clearance was obtained on 19.02.2015. When the quarry was about to start, a similar writ petition was filed in WP(MD)No.9336 of 2015 before this Court and this Court by order dated 10.06.2015 appointed an Advocate Commissioner to inspect the quarry site and to submit a report. Based on the report submitted by the Advocate Comissioner as well as the objections filed by the Department, the writ petition was disposed of, with certain directions. In the meantime, the environmental clearance granted for a period of three years got lapsed on 18.02.2018.
5.It is further stated that the extent of S.No.253(part) at Gunaseelam Village in Cauvery is 312.63.0 Hectares and there are huge sand deposits in the river bed of Cauvery at Gunaseelam village. Hence, a new proposal was made and another environmental clearance was also obtained for an extent of 24.00.0 hectors in another area near Gunaseelam village. 6/24 http://www.judis.nic.in WP(MD)No.11785 of 2019
6.According to the Department, S.No.253(part) is having an extent of 1.6 Kilometres upstream from the Anaicut. An extent of 312.63 Hectors is full of sand dunes and this excess sediment deposits in the upstream needs to be removed to avoid the future water current and enhance the storage capacity of the new barrage proposed near that area.
7.Considering the rival submissions made on either side and the materials placed before this Court, this Court by order dated 07.06.2019, directed the Monitoring Committee, appointed by a Division Bench of this Court at Principal Seat in WP.No. 22433 of 2017, on 06.07.2018 [where one of us is a party (M.SATHYANARAYANAN.,J)] to cause inspection on the proposed sand quarry site and to submit a report before this Court.
8.As per the directions of this Court, the Monitoring Committee comprising (i) Dr.A.Arun Thamburaj, Project Director (FAC), Sand Quarrying Operations, Tamil Nadu (ii) Dr.S.Ganapathy Venkata Subramanian, Professor, Anna University, Chennai and (iii) Mr.V.Pugazhendi, Senior Hydro Geologist 7/24 http://www.judis.nic.in WP(MD)No.11785 of 2019 (rtd), Chennai, caused inspection on the proposed quarry site on 24.06.2019, however, one of the members Dr.S.Mohan was out of country and with his consent, the inspection was conducted and a report was submitted before this Court. The Committe in its report made the following observations on the proposed quarry site.
“Committee’s Observation:
• Sand quarrying operations were not started. • There was flow in the southern side of the river Cauvery at a distance of 169 m from the demarcated south west corner boundary of the proposed sand quarry lease area.
• The proposed sand quarry area (24.00.0 hectares) has been demarcated with flags on all the four corners. The pillar stones were in place, as per the conditions, but no levels were marked on the pillar. • There has been no sand quarry in the proposed lease area.
8/24 http://www.judis.nic.in WP(MD)No.11785 of 2019 • The pillar stone and the lease boundary were verified in the field and the geographic co-ordinates were verified.
• Piezometer (borewell) was established for ground water level monitoring.
• Temporary shed was constructed and the surveillance camera and drop gate are not installed as the quarry operation is yet to commence.
• Moderate shoal formation was observed. However, there is accretion of sand above the river bed level.
• No drinking water sources in the river were observed with 500 m distance in the upstream and downstream of the proposed sand quarry site. • The Mukkombu dam is located at a distance of about 2 kms on the downstream side of the lease area.
• CTE from TNPCB has been obtained.” 9/24 http://www.judis.nic.in WP(MD)No.11785 of 2019
9.The Committee has also viewed the grievances of the petitioner as well as the general public, who gathered during its inspection. It also visited the nearby agriculture wells and observed the ground water level using the water level indicator. The level of ground water in the monitoring well was 3.7 Metres and the level of the water in the agriculture well was 4.95 Metres and they also observed that there was no sign of quarry operation in the proposed area in the past and also confirmed the same by verifying the records. The shoals formed in the lease area are natural one and are not manmade. In conclusion of the inspection, the Committee has made the following recommendations:
• The PWD may be permitted to quarry and remove the average shoal height of 1.1 m and restrict to 1 m below the theoretical bed level, as per the Mining Plan. The removal of the shoal in the lease are would facilitate the flow of water throughout the width of the river.
10/24 http://www.judis.nic.in WP(MD)No.11785 of 2019 • It is suggested to strengthen the bund of the river and use the bund to transport the sand by forming the ramp and ensure that the shunting trucks move parallel to the highways before entering it.
• The bed level and the sand above and below the bed level for the entire stretch of Cauvery River may be assessed scientifically through IIT-M and Anna University.
• The conditions stipulated in Environmental Clearance by the letter No.SEIAA-TN/F.No.6638/EC/1(a)/3989/2018, dated 10.08.2018, from the State Level Environmental Impact Assessment Authority, Tamil Nadu Should be scrupulously followed. It is also pertinent to note that certain conditions in the environmental clearance of SEIAA are not relevant to sand quarrying operations. They may be suitable in case of mining, which involved blasting drilling and such conditions are highly irrelevant for sand quarrying operations and should have no impact on the surroundings, if not followed.
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10.Heard Mr.V.Ganapathy Subramanian, learned Counsel appearing the petitioner and Mr.K.Chellapandian, learned Additional Advocate General, assisted by Mr.A.K.Baskarapandian, learned Special Government Pleader appearing for the respondents and also perused the records.
11.The report of the Monitoring Committee reveals that there are moderate shoal formation and there is an accretion of sand above the river bed level in proposed quarry site and the shoals are natural one and there is no drinking water source within 500 meters distance in the upstream as well as in the downstream of the proposed sand quarry site. Based on the proposal made by the Public Works Department, a Committee comprising the Revenue Divisional Officer, Musiri, the Executive Engineer, TWAD Board, the Executive Engineer, PWD and the Assistant Director of Mine, made a joint inspection at the proposed quarry site and the Committee, after satisfying with the requirements of the existing rules has recommended the District Collector, Trichy, for sand quarry and accordingly, the precise area was prescribed and mining plan submitted as per Sections 41 and 42 of the Tamil Nadu Minor Mineral 12/24 http://www.judis.nic.in WP(MD)No.11785 of 2019 Concession Rules with the approval of the Assistant Director of Geology and Mining. The State Level Environment Impact Assessment Authority [SEIAA] has also granted environmental clearance by order dated 10.08.2018 by imposing several conditions, for ensuring the environment and bio diversity.
Further, the Monitoring Committee appointed by this Court has also made a field inspection and also visited the nearby agricultural wells and observed the ground water level and ensured the establishment of piezometer for monitoring the ground water level and finally recommended for removal of the shoal height of 1.1 Metre and restrict to 1 Metre below the theoretical bed level as per the mining plan.
12.On the other hand, the learned Counsel for the petitioner relied upon the Advocate Commissioner's report submitted before this Court in W.P(MD)No.9336 of 2016 pertaining to the very same area near Gunaseelam revenue Village, Musiri Taluk, wherein the Advocate Commissioner, who visited the quary site near Gunaseelam village in the year 2016 in W.P(MD)No.9336 of 2016 on 25.06.2016 has observed as follows:
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http://www.judis.nic.in WP(MD)No.11785 of 2019 “12.During my visit, I saw marks or vehicle suggesting illegal movement of vehicles. I also saw heap of sands dumped in for illegal transport. I also saw big pits, where sand have been removed. All these suggest there have been illegal quarry in this spot. As I was driving to the spot I also notice more than 50 lorries parked in a nearby place apparently these lorries were waiting to lift the sand illegally.”
13.Similarly in a batch of writ petitions filed in WP(MD)No.4252 of 2017,etc., a Committee of Commissioners were appointed by this Court to inspect the mining areas, namely, Mayanur, Kulithalai, Sinthalavadi, Kadambankurichi in the District of Karur, Unniyur, Silaipilariyarputhur, Karakadu, Manamedu, Musiri(West), Pettaivaithalai, Panaiyakurichi, Kariyampetttai, Viragalur, Alampadi in the District of Trihcy, Koviladi, Vittalapuram, Nadupadukai in the District of Tanjore and this Committee has also noted that the quarry operation was carried out in a reckless manner without even fixing the boundaries. The quarry operation in almost all the places visited by the Committee was carried out beyond the permitted 14/24 http://www.judis.nic.in WP(MD)No.11785 of 2019 level and permitted depth in a haphazard manner. In most of the places the Committee has also observed that there were illegal mining of sand.
14.It is in fact, on similar reports about rampant, illegal mining activities in the State, this Court in Principal Seat at Madras, by order dated 26.07.2002, issued a direction to the Government to constitute an expert committee consisting of Geologists, Environmentalists and Scientists to study the river and river beds in the State on the impact of sand quarrying. Accordingly, vide G.O.2(D)No.46, Industries Department, dated 25.09.2002 the Government constituted a six members high level committee to conduct a scientific survey with reference to sand quarrying in rivers and river beds and to submit a report with reference to the damage caused on account of indiscriminate and illegal quarrying.
15.The High Level Committee in its report has pointed out that there are rampant, illicit and haphazard sand mining, carried out in almost all the rivers and river beds, leading to 15/24 http://www.judis.nic.in WP(MD)No.11785 of 2019 damage to civil structures, depletion of ground water table, degradation of ground water quality, sea water intrusion in coastal areas, damages to the river systems and reduction in bio-diversity. The High Level Committee has also recommended for entrustment of sand mining with a single agency. Based on the recommendations of the high level committee, Rule 38(A) was incorporated by way of an amendment to the Tamil Nadu Minor Mineral Concession Rules, 1959, in the year 2003. Even after lapse of 16 years, the purpose for which, the amendment was made is not achieved.
16.The object for which Rule 38A of Tamil Nadu Minor Mineral Concessions Rules, 1959 was incorporated is for
(a) elimination of indiscriminate and unscientific sand quarrying.
(b) uninterrupted availability and supply of sand in a regular and orderly manner to the common public.
(c) availability of the sand at affordable prices to common public thereby effecting reduction in the cost of construction.
(d) augmentation of the revenue of the State Government. 16/24 http://www.judis.nic.in WP(MD)No.11785 of 2019
17. Section 18 of the Mines and Minerals (Development and Regulation) Act, 1957 requires conservation and systematic development of minerals in India for the protection of environment. For conservation and systematic development of minerals, the Hon'ble Supreme Court has issued several directions in Deepak Kumar and others v. State of Haryana and others reported in (2012) 4 Supreme Court Cases 629, and one of such directions is to frame Mineral Conservation Rules, in paragraph No.28, which reads as follows:
"28. The Central Government also should take steps to bring into force the Minor Minerals Conservation and Development Rules, 2010 at the earliest. The State Governments and UTs also should take immediate steps to frame necessary rules under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 taking into consideration the recommendations of MoEF in its Report of March 2010 and model guidelines framed by the Ministry of Mines, Government of India. Communicate the copy of this order to MoEF, Secretary, Ministry of Mines, New Delhi; Ministry of Water Resources, Central Government Water Authority; the Chief Secretaries of the respective States and Union Territories, who would circulate this order to the Departments concerned."
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18.As per the directions of the Hon'ble Supreme Court in Deepak Kumar's case cited supra and in exercise of powers conferred under Section 18 of the Mines and Minerals (Development and Regulation) Act, 1957 and in supersition of the Mineral Conservation and Development Rules, 1988, the Government of India, framed the Mineral Conservation and Development Rules 2017 with necessary provisions for conservation and development of minerals. Rule 2 of the said Rules stipulates that the State Governments shall adopt and extend the application of these rules with modification.
19.As per the second proviso to Rule 2 of the Mineral Conservation and Development Rules, 2017, the powers and responsibilities to be exercised by the Central Government or the Indian Bureau of Mines in respect of minerals other than minor minerals shall be exercisable by the State Government or State Directorate of Mining and Geology or any other authority subordinate to the State Government as may be notified by the State Government while extending the application of these rules to minor minerals and as already pointed out, despite availability of the said statutory provision, the State is yet 18/24 http://www.judis.nic.in WP(MD)No.11785 of 2019 to frame a separate rule for dealing with the conservation and development of minor minerals.
20.Though it is open to the State Government to adopt the Mineral Conservation and Development Rules, 2017, for the purpose of conservation and development of minor minerals, no steps have been taken either to adopt or to frame a separate rule as provided by the proviso to Rule 2 of the Mineral Conservation and Development Rules, 2017.
21.The Government is the custodian of mineral, the valuable Treasure gifted by the nature is for the entire mankind. A duty is cast upon the Government to prevent the illegal mining and to ensure mining activities are carried out in a scientific manner. The present scenario in Tamil Nadu is against the object for which rule 38(A) was amended in the Tamil Nadu Minor Mineral Concession Rules, 1959. There is rampant illegal mining activities on one side and exorbitant sand price is on the other side. The District and Taluk Level Task Forces are proved to be failure which could be seen from the Commissioners report filed in those two writ petitions referred above. 19/24 http://www.judis.nic.in WP(MD)No.11785 of 2019
22.The illegal sand quarrying operations are not curtailed. On the other hand, the price of the sand is not affordable by a common public. The Public Works Department is conducting the quarry operations, selling the sand in the yards for Rs.1,200/- per unit, but the sand when it reaches the common public, costs Rs.15,000/- to Rs.20,000/- per unit. The Government of Tamil Nadu, has developed a sand portal namely, www.tnsand.in and there are provisions to the common public to purchase the sand through their portal. But the common public, who intends to purchase the sand through this portal has to identify a lorry which is enrolled by the Public Works Department. The Public Works Department has conducted a drive and enrolled 70,000 lorries in their website and through the lorries alone any common public has to purchase the sand. Apart from the common public those lorry owners enrolled are entitled to purchase sand directly from this sand portal. There is no mechanism to identify the eligible person for purchase of sand. Anybody can approach the sand portal, purchase the sand and sell for exorbitant rate. Since there is a huge gap between the demand and supply, the price of the sand stood up to exorbitant level and the block marketers and those lorry owners, who have 20/24 http://www.judis.nic.in WP(MD)No.11785 of 2019 enrolled with the Public Works Department alone are reaping the benefits. Whereas, the genuine common public, who obtain due planning permission and construct cannot purchase the sand through this portal without the mercy of the lorry owners enrolled with the department. The sand quarry operations are made at the cost of environment, but the common public is not benefitted out of it.
23.However, considering the merits of this case based on the grounds raised by the petitioner, this Court by order dated 07.06.2019, directed the Monitoring Committee comprising Experts to cause inspection and to submit a report. The Monitoring Committee in their report has recommended the removal of shoals in the lease area and it would facilitate the flow of water throughout the width of the river Cauvery and also suggested for permitting the fifth respondent to conduct the quarry operation in accordance with the conditions stipulated in the environmental clearance of the State Level Environment Impact Assessment Authority dated 10.08.2018 and to strengthen the bund of the river and use the bank to transport the sand.
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24.Considering the report of the Monitoring Committee and the present scenario, this Court pass the following order.
(i) The fifth respondent is permitted to quarry the sand in S.No.253 (part) in Gunaseelam village, Musiri Taluk, Trichy District, as per the environmental clearance dated 10.08.2018 and as per the recommendations of the Monitoring Committee.
(ii) The first respondent shall take necessary measures for conservation and development of mineral sand.
(iii) The respondents 1 and 4 shall evolve a price control mechanism and to achieve the object for which Rule 38(A) was made.
(iv) The respondent 4 shall workout the possibility of supplying the river sand at the doorsteps of the common public as imported sand is now supplied and also to evolve a scheme of supply depending upon the building plan approval.
25.In the result, this writ petition is dismissed. No costs.
[M.S.N., J.] [B.P., J.]
28.11.2019
Index : Yes / No
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WP(MD)No.11785 of 2019
To
1.The Principal Secretary
Pubic Works Department,
Secretariat,
Namakkal Kavignar Maligai,
Chennai.
2.The Chief Engineer,
Pubic Works Department,
Trichy.
3.The Executive Engineer,
River Conservation Division,
Public Works Department,
Chennai.
4.The Project Director,
Mines and Monitoring Division,
Public Works Department,
Trichy.
5.The Executive Engineer,
Mines and Monitoring Division,
Public Works Department,
Trichy.
6.The Junior Engineer,
Public Works Department,
Upper Anaicut, Mukkombu,
Trichy District.
7.The District Collector,
Collectorate,
Tiruchirappali.
8.The Revenue Divisional Officer,
Musiri Revenue Division,
Musiri – 621 211,
Trichy District.
9.The Thasildar,
Musiri Taluk,
Musiri, Trichy District.
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WP(MD)No.11785 of 2019
M.SATHYANARAYANAN, J.
and
B.PUGALENDHI, J.
dsk
W.P.(MD)No.11785 of 2019
28.11.2019
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