Madras High Court
V.V.Mineral (Firm) vs The Regional Controller Of Mines on 7 July, 2014
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.07.2014 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN W.P.No.No.12875 of 2014 & M.P.Nos.2 to 4 of 2014 V.V.Mineral (Firm), Represented by its Managing Partner, Mr.S.Vaikundarajan, having office at Keeraikaranthattu, Thisayanvilai, Tirunelveli-627 657. ... Petitioner Vs. 1.The Regional Controller of Mines, Indian Bureau of Mines, C-4A, Rajaji Bhavan, Besant Nagar, Chennai-600 090. 2.The Secretary to Government, State of Tamil Nadu, Industries Department, Fort St.George, Chennai. 3.The Commissioner of Geology and Mining, Guindy, Chennai - 600 032. 4.The Assistant Director of Geology and Mining, Tirunelveli. 5.The District Collector, Tirunelveli District, Tirunelveli. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorari, to call for the records of the first respondent herein, pertaining to order bearing No.TN/TNL/GNT/MS-1009-MDS, dated 05.03.2014 and quash the same. For Petitioner : Mr.A.R.L.Sundaresan, SC For Mr.R.Vishnu For Respondents : Mr.M.L.Ramesh for Mr.N.Ramesh, Central Government Standing Counsel for R1 Mr.T.N.Rajagopalan Special Government Pleader for R2 to R4 Mr.S.T.S.Murthi, Government Pleader for R5 Mr.R.Sankarasubbu and Mr.S.Jimraj Milton for impleading petitioner - - - O R D E R
The short facts of the case are as follows:-
The petitioner is the firm engaged in the mining and processing of beach sand minerals. The mining and processing of beach sand minerals is governed by provision of Mines and Minerals Development and Regulation Act, 1957 ("MMDR") and the relevant rules thereafter, viz., Mineral Concession Rules, 1960 ("MCR") and Minerals Conservation and Development Rules, 1988 ("MCDR"). Under the scheme of MMDR Act, any person desirous of mining beach sand minerals is required to apply to the State Government for a Mining lease. Having regard to the fact that the beach sand mining contains certain major minerals, the State Government will, after processing application, refer the same to the Central Government for prior approval, under Section 5 and 11 of the Act.
2. The petitioner further submits that at the time of applying for mining lease, the applicant is required to submit a mining plan. This mining plan is to be submitted in accordance to Rule 22 of Mineral Concession Rules, 1960. At the time of grant of mining lease, the mining plan is also required to be approved. Once the mining plan is approved, it is valid for the entire duration of the lease, as per Rule 22(6) of the Mineral Concession Rules. It is relevant to point out here that under Rule 22(5), the documents to be submitted as part of the mining plan is a tentative scheme of mining and this is valid for only five years. The very word "tentative" makes it clear that the scheme of mining is not a binding document, but is only required to be a broad, approximate plan of how the miner plans to extract the ore in the forthcoming five years. Therefore, once the mining plan is approved the tentative scheme of mining takes effect and remains valid for five years. Thereafter, under Rule 12 of Minerals Conservation and Development Rules, 1988, the miner is required to submit a fresh scheme of mining for the next five years at least 120 days prior to the expiry of the previous scheme. Rule 12(5) makes it clear that a scheme, if not rejected within 90 days, is deemed to be approved. Under Rule 13 of the Minerals Conservation and Development Rules, if any person carried on mining activities contrary to the mining plan or scheme of mining, then, the respondents herein are empowered to suspend the mining operations so far as necessary to ensure that mining will be only as per the mining plan undertaken. Thus from the above statutory scheme, the following position emerges:-
(A) Every mining lease requires a mining plan. This is seen from Section 5(2)(b) of the Act. Thus the mining plan is sacrosanct.
(B) The mining plan is for the validity of the lease, namely, twenty to thirty years.
(C) The mining plan is implemented by a document known as a scheme of mining which has a shorter validity period, viz., five years.
(D) A scheme of mining is expressly stated to be "tentative" under Rule 22(5) of the MCR.
(E) Before the expiry period of one scheme of mining, the next scheme should be submitted for approval.
(F) If, a miner carries out mining contrary to the mining plan or a scheme of mining, suspension of mining operation is permitted, but only insofar as necessary as to restore the mines and mining operations back in accordance to the mining plan.
3. The petitioner additionally added that in this case, the petitioner was granted a mining lease by the State Government, in respect of an extent of 4.09.5 hectares in Survey Nos.476/3A1, 477/1A1 etc in Levinjipuram Village, dated 18.12.2003. Thus, at the time of grant of lease, the mining plan was in force and approved. The petitioner applied for a modified scheme of mining and this was approved on 20.09.2010. Although the modified scheme of mining was still valid, the first respondent took a very strange stand and issued a show cause notice to the petitioner on 13.09.2013, alleging that the petitioner had not applied for renewal of scheme of mining in a timely manner and asked the petitioner to explain the same. The petitioner further submits that the first respondent also strangely issued an order dated 15.10.2013 suspending all mining operations in a blanket manner with respect to the approved mining lease which was already on file. The petitioner, not wishing to antagonize the all powerful respondent, immediately submitted a scheme of mining to the first respondent on 17.10.2013. The first respondent, viz., the Regional Controller of Mines, Indian Bureau of Mines, Chennai, replied on 01.01.2014 pointing out certain minor defects in mining scheme and returned the said scheme for rectifying the said defects. The petitioner immediately sent a detailed response on 25.01.2014, rectifying all the defects, point by point and represented the scheme for approval. To the petitioner's shock and disappointment, the first respondent passed an order on 05.03.2014, without any application of mind, simply stating that "most of the technical points communicated vide letter of even no. dated 02.01.2014 has not been attended." Consequently, the petitioner's scheme was rejected. The said order is now being challenged by the writ petitioner.
4. The petitioner further submits that the first respondent has passed a cyclostyled order giving the same kind of shabby disposal for all of its scheme of mining submitted by the petitioner. Each of the rejection orders are being challenged through this writ petition. This kind of slipshod disposal, without any application of mind, giving identical cyclostyled order in 19 different cases, is no order at all in the eye of law and the time of consuming revision remedy is not an effective redressal. That apart, the first respondent with a vindictive motive, and without any kind of application of mind has also passed an order of suspension of mining, purportedly under Rule 13(2) of the MCDR as mentioned above, and has instructed respondents 3 to 5 to implement the same. A casual glance at Rule 13(2) of the MCDR, and a harmonious reading of the same with Rule 22(6) of the MCR, would disclose that the power to suspend mining operations can only be exercised subject to the rider that mining operations should be permitted so as to ensure that the operations as per the mining plan are preserved. The petitioner has already given a plan of extraction in the mining plan, and will abide by the same. The scheme of mining has been rejected on specious grounds as seen in this writ petition. The petitioner further submits that it is a national waste if the mines remain inoperative, due to the short-sighted and illegal actions of the first respondent.
5. It is relevant to point out here that the Government of Tamil Nadu has ordered a probe into beach sand mining and has ordered stoppage of mining until inspection is completed. The petitioner undertakes not to do any kind of mining activity except in accordance with G.O.Ms.No.156 Industries (MMD.1), dated 08.08.2013 and G.O.Ms.No.173, Industries (MMD.1), dated 17.09.2013. In view of the illegal order of the first respondent, the other respondents are refusing to permit the petitioner to undertake mining operations. Hence, the writ petitioner has filed the present writ petition to quash the first respondent's order bearing No.TN/TNL/GNT/MS-1009-MDS, dated 05.03.2014 .
6. The first respondent, viz., Regional Controller of Mines, Indian Bureau of Mines, Chennai, has filed a counter statement and resisted the writ petition. The first respondent submitted that originally, the petitioner obtained approval of mining plan, valid for 5 years from 2006-07 to 2010-11. The approved mining plan expired on 31.03.2011. According to Rule 12(3) of Mineral Conservation & Development Rules, 1988, (MCDR, 1988), the lessee/petitioner ought to have submitted mining scheme at least 120 days before the expiry of the approved mining scheme i.e, before the First December 2010. Since no such mining scheme was submitted, but mining operations were carried on, a violation-cum-show-cause notice dated 13.09.2013 was issued to the petitioner giving 30 days time for reply. Even then, mining scheme was not submitted. Hence order of suspension of mining operations dated 15.10.2013 were issued which are impugned herein. Thus it can be seen that all the due procedures were followed in issuing the orders of suspension.
7. The first respondent further submits that after the order of suspension, the petitioner had submitted draft mining scheme on 18.10.2013 for approval. A statutory inspection/field-verification was conducted on 10.12.2013, for examining draft mining scheme. After examination, scrutiny comments were issued on 01.01.2014 and the petitioner was required to rectify the deficiencies. On 25.01.2014, the petitioner re-submitted the draft scheme which was found incomplete and he has not rectified the deficiencies. On 05.03.2014, the draft mining scheme was returned requiring him to rectify the deficiencies mentioned earlier. The petitioner has not re-submitted the draft scheme thereafter, but approached this Court. If some deficiencies are pointed out, it is for the petitioner to rectify the same. Instead of rectifying the defects and resubmitting the draft scheme, he has approached this Court and obtained interim order and is removing the minerals. The first respondent additionally submits that if the petitioner is aggrieved by the order of the first respondent, alternate remedy under Rule 57 of the Mineral Conservation and Development Rules, 1988 is available. Without availing the alternate statutory remedy, the petitioner has filed this writ petition and hence it is premature.
8. The first respondent further submits that the petitioner has already approached the civil Courts at Tirunelveli /Kanyakumari Districts and has filed several civil suits and the suit in O.S.No.50 of 2014, for the instant case, wherein, he has prayed for similar relief and the same is pending. By suppressing the pendency of civil suits, the petitioner has filed these writ petitions and obtained interim order. Having approached civil Court, he ought to have waited till the disposal of civil suits. The petitioner is engaged in forum shopping. Hence, on these grounds, the writ petition is liable to be dismissed. The first respondent further submits that the petitioner is further misrepresenting the facts as if the orders of the State Government are consequential to the suspension orders of first respondent. The fact remains that complete mining operation was already stopped due to the order of State Government, vide letters G.O.(Ms)No.156, dated 08.08.2013, G.O.(Ms)No.173, dated 17.09.2013 and R.C.No.M2/42049 dated 23.09.2013 respectively on various other complaints/grounds, whereas, the mining operations were suspended by first respondent on 15.10.2013 for non-approval of scheme of mining. Thus the action of State Government is distinct and forms a separate cause of action and cannot be clubbed with the orders of first respondent. As such, the writ petition is not maintainable.
9. The first respondent additionally added that he has limited responsibility in case licensing of mines which includes, approval of 'mining plan' and 'mining scheme'. The licensing and implementing authority is the State Government. Any applicant intending to obtain mining lease, shall submit a draft 'mining plan' to Indian Bureau of Mines along with consent letter from State Government in accordance with Rule 22B of MCR 1960. On the basis of submitted draft mining plan, as per Section 22(5), the Regional Controller of Mines shall obtain a satisfactory report from his inspecting officer and will accord approval to the draft. On the basis of approval of mining plan, the State Government grants mining lease. As per the Rule 22(6) of MCR, 1960 the mining plan once approved shall be valid for the entire mining lease period.
10. The first respondent further submits that as for the mining operations, it shall be in accordance with the approved mining scheme which has to be approved for five years. The Rule 22(5)(v) says: "a tentative scheme of mining and annual programme and plan for excavation from year to year for five years." All the mining plan and mining scheme are submitted to the Department through Recognized Qualified Persons (RQP). Detailed guidelines have been framed by Indian Bureau of mines and are available with all the RQPs and all the Mine owners in respect of mining plan and mining scheme. The first respondent further submits that as per the Rule 12(3), the scheme of mining should be submitted to the Regional Controller of Mines, the first respondent herein and at least 120 days before the expiry of the five years period, for which it was approved on the last occasion. Rule 12(5) should be read in conjunction with Rule 12(3) i.e., if submitted within stipulated period. Further, Rule 12(5) reads as follows:-
"If approval or refusal of the scheme of mining is not conveyed to the holder of the mining lease within the stipulated period the scheme of mining shall be deemed to have been provisionally approved and such approval shall be subject to final decision whenever communicated."
The first respondent further submits that the mining plan is a document submitted by an applicant to get a mining lease at the initial stage, or at the time of renewal of mining lease, as the case may be, wherein the proposals in the approved mining plan will be valid for the five years period from the date of execution of mining lease. Rule 22(6) of MCR, 1960 provides that a mining plan once approved shall be valid for the entire duration of the lease. However, as per Rule 22(5)(v) of MCR, 1960 a minimum plan shall incorporate, inter alia, a tentative scheme of mining and annual programme and plan for excavation from year to year for five years. This implies that a mining plan should include, inter-alia, scheme of mining which is to be reviewed every five years. Rule 12(2) of MCDR, 1988 also prescribes that a scheme of mining for the next five years shall be submitted to the RCOM for approval. A harmonious reading of the rules quoted implies that the lessee does not have a right to carry out mining operation solely on the basis of an approved mining plan, when the scheme of mining has become due.
11. The first respondent further submits that the requirement of scheme of mining is given by the guidelines for preparation of scheme of mining by various circulars issued by the Chief Controller of Mines, Indian Bureau of Mines. The first respondent further submits that the Rule 12(2) and (3) of MCDR, 1988 says that the lessee should review the mining plan, by submitting the scheme of mining, at least 120 days before the expiry of the five years period, for which it was approved on the last occasion. The same should be followed for the subsequent scheme of mining, until the lease expires. But, if the lessee desires to renew the mining lease, than he needs to submit a mining plan under Rule 24A of MCR, 1960 before one year on which the lease is due to expire. The first respondent further submits that under Rule 13 if the mining operations are not carried out as per approval of mining plan / scheme of mining as applicable, the mining operation, can be suspended under Rule 13(2) of MCDR, 1988. In this case as there was no approved scheme of mining document at all, entire operation has been suspended.
12. The first respondent further submits that the petitioner has not submitted the modified scheme of mining in this case. The following is the position in the present case.
The last mining plan was approved vide letter No.TN/TNL/GNT/MP-491/1752.MDS, dated 20.09.2010. The five years period was from 2006-2007 to 2010-2011, i.e, upto 31.03.2011 only. (Effective period of commencement shall be from financial month and year, though approved subsequently). After that, the lessee does not have any approved scheme of mining for continuing mining operation.
It is very clear that the mining scheme of the petitioner got expired and that he has not submitted mining scheme 120 days before the date of expiry. Hence, it was found to be a fit case and a violation cum show-cause notice was issued as there was no valid scheme of mining and suspension followed as the document was not submitted within the stipulated period. The first respondent further submits that the petitioner submitted the draft scheme of mining for approval with the fresh proposals for the 5 years period. Based on the draft submission of scheme of mining, the mine was jointly inspected by one mining engineer and geologist at the office of the first respondent on 10.12.2013 and scrutiny of remarks were sent on 01.01.2014 to the petitioners and RQP to attend the correction in the draft scheme of mining. The RQP submitted two modified copies to the first respondent on 25.01.2014. The re-submitted document was scrutinized based on letter No.TN/TNL/GNT/MS-1009.MDS, dated 01.01.2014. Since the modified draft scheme of mining was not attended as per the scrutiny remarks, the draft modified document (i.e., scheme of mining has been returned with the following remarks:-
In exercise of the power conferred by Sub Rule 4 of Rule 12 of MCDR, 1988, (Amended 2003), the above mentioned scheme of mining and progressive mine closure plan is not approved due to the following reasons:-
"Most of the technical points communicated vide letter of even number dated 01.01.2014 have not been attended.
Besides, the estimation of replenishable reserves has been made on hypothetical basis, whereas no part of the mining lease area falls between High Tide Line (HTL) and Low Tide Line (LTL). "
Please note that Rule 12 of MCDR 1988 stands violated in respect of your above said mine.
13. The first respondent further submits that the return/disapproval was conveyed to the lessee, but the lessee/petitioner has conveniently suppressed in his petition the second para of the order to misguide the Hon'ble Court. The first respondent further denies that the order was cyclostyled. Cyclostyled information/datas were submitted by the petitioner for approval. Hence, the similar type of order was prepared and issued, as the cases were similar and there is nothing wrong in that as per law. In the same way the Hon'ble High Court has also clubbed all writ petitions from 12862 to 12880 by issuing single order. There is no vindictive motive on the part of the first respondent, as can be seen from the records. Based on the inspection of the mine, scrutiny comments were issued to attend the deficiencies and the petitioner was asked to submit in two copies, before asking for final copies and final approval. But, to the surprise of the respondent, the lessee had submitted the incomplete modified copies. In the letter not approving the scheme of mining, the reason for non-approval has been specified. As on date, there was no approved scheme of mining and the mine operation was suspended under Rule 13(2) of MCDR, 1988. The first respondent further submits that the mining operations were suspended by first respondent for non-approval of scheme of mining on 19.03.2014. However complete mining operation was clearly stopped much before the order of first respondent due to the order of State Government vide letters G.O.(Ms)No.156, dated 08.08.2013, G.O.(Ms)No.173, dated 17.09.2013 and R.C.No.M2/42049, dated 23.09.2013, respectively.
14. The first respondent further submits that the order of suspension is as per Rule and not illegal. The mining operation should not be resumed unless compliance of rules as specified in the suspension order has been made. The first respondent further submits that the petitioner has already approached civil Court in Tirunelveli District in the same case vide I.A.No.121 of 2014 in O.S.No.50 of 2014 and the same is pending. The petitioner is approaching High Court pending the disposal of suit in the lower Court. The first respondent had issued a scrutiny comments letter to the lessee wherein the deficiencies observed were pointed out for attending the same and asked to submit the modified copies for checking. But the lessee's ROP has submitted the incomplete modified scheme of mining on 25.01.2014. The reason for rejection mentioned here is not correct as can be verified from the records.
15. The first respondent further submits that the scheme of mining was examined in the office of first respondent and disposed as per Rule. The petitioner if aggrieved by the order of the first respondent could have availed the avenues under Rule 57 of MCDR, 1988 through revision as provided under law, before approaching this Court. Since the petitioner has not exhausted all avenues available before approaching this Court, the petition may be dismissed on ground of premature. The first respondent further added that the order of suspension of mining operation is as per Rule 13(2) of MCDR, 1988 and is in order. The lessee should not be allowed to do mining operation and material movement unless the scheme of mining is approved as per Rule. Only after obtaining approval of mining scheme, the petitioner is entitled to approach the authorities to revoke the order of suspension as per law. Hence, the first respondent entreats the Court to dismiss the above writ petition.
16. The third respondent, viz., the Commissioner of Geology and Mining, Guindy, Chennai has filed a counter statement on behalf of the other respondents, viz., respondents 2, 4 and 5 and himself. The third respondent submits that the writ petitioner, viz., V.V.Mineral (Firm), Tisaiyanvillai, have filed 19 writ petitions in W.P.Nos.12862 to 12880 of 2014, in respect of mining leases granted to them for Garnet, etc., minerals in Tirunelveli and Thoothukudi Districts. The Indian Bureau of Mines suspended mining operations under Rule 13(2) of the Mineral Conservation and Development Rules, 1988 on the ground that the petitioner had not submitted the final modified scheme of mining within the stipulated time and the mining operations were carried out in the mine without having valid proposal in the form of approved scheme of mining, leading to violations of Rule 13(1) of the Mineral Conservation and Development Rules, 1988. Aggrieved by the orders of the Indian Bureau of Mines, the petitioner filed 19 writ petitions.
17. The third respondent further added that Garnet is a major mineral and the mining of this major mineral is governed by the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (Central Act No.67 of 1957) and the relevant rules framed under the same Act, viz., the Mineral Concession Rules, 1960 and the Mineral Conservation and Development Rules, 1988. The State Government is competent to grant mining leases for mining Garnet in Government Poromboke land and the Commissioner of Geology and Mining, Chennai is competent to grant lease in respect of patta lands. But the grant of lease for major minerals specified in the first schedule is subject to the approval of Central Government as per Section 5(1) of the Mines and Minerals (Development and Regulation) Act, 1957. The third respondent further submits that in the chapter IV of the Mineral Concession Rules, 1960 deal with procedures for grant of mining leases in respect of land in which the minerals vest in the Government. The application for mining lease should be made to the State Government in Form I through such officer or authority as the State Government may specify in this behalf under Rule 22(1) of the Mineral Concession Rules, 1960 with the required documents specified in Sub-Rule (3)(i) of the above Rule. The receipt of each application shall be acknowledged in Form D as per Rule 23(4) of the Mineral Concession Rules, 1960. The received application is being processed by the District Collector concerned and on his satisfaction, he recommends the application to the Commissioner of Geology and Mining, Chennai. After a detailed scrutiny and verification, the Commissioner of Geology and Mining, Chennai sends the application to Government for appropriate orders on the merits of the application.
18. The third respondent further submits that as per Rule 22(4) of the Mineral Concession Rules, 1960, the Government have to communicate the precise area to the applicant in the event of Government taking a decision to grant mining lease to the applicant. On receipt of this communication of the precise area, the applicant should submit mining plan duly approved by the Central Government namely, by the Regional Controller of Mines, Chennai, Ministry of Mines, Government of India which shall be valid for the entire duration of lease as per Rule 22(6) of the Mineral Concession Rules, 1960. To implement the approved mining plan, the lessee should submit a tentative scheme of mining valid for five years as per Rule 22(5) of the Mineral concession Rules, 1960. The Rule 12 of the Mineral Conservation and Development Rules, 1988 prescribed the review of mining plan by submitting a scheme of mining for every five years block. The scheme of mining should be submitted to the Regional Controller of Mines at least 120 days before the expiry of the five year period and it should be got approved. The lessee should do the mining operations only in accordance with the approved mining plan. If the mining operations are not carried on as per the approved mining plan, the Regional Controller of Mines is competent to pass an order of suspension of all or any of the mining operations and permit continuance of only such operations as may be necessary to restore the conditions in the mine as envisaged under the said mining plan as per Rule 13(2) of the Mineral Conservation and Development Rules, 1988. Since the petitioner has not got his scheme of mining approved by the Regional Controller of Mines the order of suspension of mining operations has been passed in his letter No.TN/652(7).12.MDS, etc. dated 15.10.2013 and 19.03.2014. The writ petitions have been filed against these orders of suspension.
19. The third respondent further submits that the District authority communicated the orders of the first respondent, viz., The Indian Bureau of Mines who suspended the mining operations of the petitioner as per Sub Rules (1) and (2) of Rule 13 of the Mineral Conservation and Development Rules, 1988 since mining operations is being carried out in the mine without having valid proposal in the form of approved scheme of mining. As such, the District Authority only communicated the orders of the first respondent and no fresh orders or directions were given. Therefore, the writ petitions are only with regard to orders issued by the Indian Bureau of Mines, Chennai and not against the State Government. The third respondent further submits that the Government have issued two orders in G.O.Ms.No.156, Industries (MMD1) Department, dated 08.08.2013 and G.O.Ms.No.173, Industries (MMD1) Department, dated 17.09.2013 instructing all the Assistant Directors of Geology and Mining in Thoothukudi, Tirunelveli, Kannyakumari, Madurai and Tiruchi to stop immediately the transport permit to the private lessees of Garnet, Ilmenite and Rutile till the inspections of the Special Team headed by the Revenue Secretary to Government are completed. Hence, the respective District authority have stopped the mining operations of private leases of the above major minerals immediately on issue of the Government Orders. Therefore, the issue of transport permit has been stopped even before the issue of the order of the suspension was impugned. Therefore, the averment that the Collector stopped the issue of transport permits based on the order of suspension is not true.
20. The third respondent further submits that it is true that the Government of Tamil Nadu constituted a Special Team headed by the Revenue Secretary to Government in G.O.Ms.No.156, Industries (MMD.1) Department, dated 08.08.2013 to probe into the complaints of illicit quarrying of minerals-Garnet, Ilmenite and Rutile in Thoothukudi District. The Special Team completed the investigation in Thoothukudi District. The Government have also authorized the Special Team in G.O.Ms.No.173, Industries (MMD1) Department, dated 17.09.2013, to inspect all the lease hold areas of the mineral-Garnet, Ilmenite and Rutile in Tirunelveli, Kannyakumari, Madurai and Tiruchi Districts and submit a report. The Special Team has completed the inspections in Tirunelveli and Kannyakumari Districts during the month of November 2013 and the field inspections in other Districts have not been completed and the final report is pending. The Government have also ordered in the above G.Os' instructing all the Assistant Directors of Geology and Mining in the above Districts not to issue transport permits to the private lessees of the Garnet, Illmenite and Rutile till the inspections are completed. The above Government orders issued by the Government of Tamil Nadu have not been challenged in these writ petitions. As per the G.Os', only after the field inspections and enquires are over, the Government may permit to mine or to take the materials already mined if any. If the petitioner is permitted now to take the Garnet sand before submission of the final report to the Government, it will surely affect the enquiry and verification of the Special Team formed by the Government and defeat the very purpose of forming a Special Team.
21. The third respondent further submits that the first respondent herein, viz., the Indian Bureau of Mines, Chennai, Ministry of Mines, Government of India, who are competent authority, put-forth his reply on the contention of the petitioner since the matter relates to them. Further, the method of scrutiny of mining plan / scheme of mining / modified mining plan submitted by the petitioner if any and the consequential orders of the same either approval / rejection are only vested with the Indian Bureau of Mines, Ministry of Mines, Government of India. The third respondent submits that the State Government is not vested with the authority on the subject matter. Hence, the respondents 2 to 5 have prayed to dismiss the writ petition.
22. One Mr.S.P.Ramachandiran has filed an impleading petition to implead him as the sixth respondent in the above writ petition. The impleading petitioner stated that he is a practicing advocate in Thoothukudi and Tirunelveli District Courts and functioning as the District Secretary of the organization being run in the name and style of Human Rights Protection Centre, Thoothukudi District, Tamil Nadu. He further submits that due to sedimentation process, rare minerals like Garnet, Ilmenite, Rutile, Zircon and Thorium rich Monozite have been deposited in the coastal hamlets of Thoothukudi, Tirunelveli and Kanyakumari Districts. Since the minerals are rare and valuable, illicit sand mining have been taking place for the past 25 years in those areas. People of coastal hamlets are continuously opposing the illegal sand mining and fighting for action against the illicit mining mafias. People and public welfare organizations made repeated recommendations seeking the Government to stop the illegal mining on the coastal hamlets of Thoothukudi, Tirunelveli and Kanyakumari Districts. On the basis of the said complaint, the Former District Collector of Thoothukudi District Mr.Ashish Kumar has formed special teams for conducting field inspection to find out the illicit mining of beach minerals. Subsequently, the said Collector had submitted a report on 06.08.2013 to the first respondent regarding the illicit mining of beach minerals at the coastal hamlets of Thoothukudi District. The report reads as follows:-
" I wish to state that in the reference first cited, V.V.Minerals Ltd., has been granted mining lease for mining garnet, ilmenite and Rutile over an extent of 4.06.0 hects in S.F.No.1018/4 etc. of Vaippar-I Village, Vilathikulam Taluk, Thoothukudi District for a period of 30 years. The lease was executed on 04.05.2006 and the lease is valid up to 03.05.2036.
In this context, various complaints were made to the District Collector in person by the Public Welfare Associations from the Keelavaippar Village of Vilathikulam Taluk on 01.07.2013 about illicit mining of beach minerals in Keelavaippar-I Village by V.V.Minerals Ltd., vide reference 3rd cited. In continuation of that, a team comprised of District Environmental Engineer, Thoothukudi, Assistant Director (Mines), Thoothukudi and Deputy Collector (Training) was formed and was instructed to jointly inspect the spot and submit report on the above illicit mining of beach minerals and beach sand by the V.V.Minerals Ltd.
In this regard, the above mentioned team has submitted their report vide reference 4th cited stating that V.V.Minerals Ltd., has illicitly quarried raw sand (rich in beach mineral) from Government Poromboke S.F.No.989 and Unsurveyed land adjoining to the S.F.No.989 of Keelavaippar-I Village of Vilathikulam Taluk and the team requested the District Collector to take action against V.V.Minerals Ltd., for the illicit mining of beach minerals and beach sand.
Following this, two teams vide the reference 5th cited on headed by DRO, Thoothukudi and another headed by Special Deputy Collector (Stamps) were constituted to inspect the area where alleged illicit mining of beach minerals and beach sand has taken place and the area where mining lease was granted to V.V.Minerals Ltd., respectively and submit detailed reports on illicit mining.
In continuation of that, in the reference 6th cited, the team headed by DRO, Thoothukudi has reported that V.V.Minerals Ltd., has illicitly quarried raw sand (rich in beach mineral) to the tune of 85,611 cbm (consisting of 2,39,712 MT of beach mineral) from the Government poromboke S.F.No.989 and unsurveyed land adjoining to the S.No.989 of Keelavaippar-I Village of Vilathikulam Taluk. Moreover, the Special Deputy Collector (Stamps) Thoothukudi in his Inspection report vide 7th cited, has submitted that mining activities have taken place only in the permitted area and Vembar and Periasamipuram Villages but the area of sand excavated has not been filled up properly as per the Rules and Regulations of Mines Act.
From the above said inspection reports, it appears that V.V.Minerals Ltd., has indulged in illicit mining of beach minerals and beach sand to the tune of 85,611 cbm (consisting of 2,39,712 MT of beach Mineral) from the Government poramboke S.F.No.989 and unsurveyed land adjoining to the S.No.989 of Keelavaippar-I Village of Vilathikulam Taluk, Thoothukudi District.
I further wish to draw your kind attention to the reference second cited wherein I have already reported the instance of large scale illicit beach sand mining by M/s.Beach Minerals Company in Padukkapathu Village of Sattankulam Taluk. Beach sand mining is being done in large scale in the three Districts of Tirunelveli, Thoothukudi and Kanniyakumari. Although, most of the quarry owners have obtained quarry leases on patta as well as poramboke lands, a majority of them indulge in illicit mining in and around their lease area because the minerals contained in the beach sand fetch very high prices.
I also wish to state that since the Major minerals involved are costly and peculiar in the nature (i.e., Garnet Ilmenite, Rutile, Monozite etc.,) further investigations into this incident and other such probable occurrences need to be taken up. In view of the above mentioned facts, I requested that detailed field inspections may be undertaken by special teams of the Departments of the Revenue, Police, Environment and Geology and Mining in connection with this illicit mining of beach sand by the V.V.Minerals Ltd., and other lessees in Tirunelveli, Thoothukudi and Kanniyakumari Districts in public interest."
23. The impleading petitioner further submits that after seeing the press statement issued by the former District Collector of Thoothukudi, after submitting a statement to the first respondent, he and others consisting of 6 advocates formed a "Fact Finding Team" and conducted a field study on the affected coastal hamlets in Thootukudi, Tirunelveli and Kanyakumari Districts from 14.08.2013 to 21.08.2013. Further, on 12.09.2013, they have released their detailed fact finding report at Madurai and the said report was widely reported in various press medias. He further submits that in the field study, they have found that large scale of machineries are being used for mining operations whereas manual mining is only permitted as per the Mines and Minerals (Development and Regulation) Act, 1957. Further, in the process of refining the soil, the mining companies are using Hazardous chemicals and they have drained chemical - contaminated radio active waste water into the sea and the lands nearer to the companies. Due to the same, the sea water and the ground water has become contaminated with harmful chemicals. The sea water has lost its natural color and appears reddish. The fish, prawns, crabs and other living organisms of the sea have been found to contain these poisonous chemicals. This has led to loss of livelihood of local fishermen. Further, it was noticed that the chemicals and radiation released by the mining company has led to diseases like cancer, brain related diseases, kidney failures and skin problems. Hundreds of people in all three districts have been affected by the said diseases.
24. The impleading petitioner further submits that in the field study, they found that the mining mafias indulge in large scale of illicit mining of minerals, like Garnet, Ilmenite, Zircon, Rutile and Monozite to the tune of lakhs of crores in thousands of hectares of poromboke, patta lands and beaches in the coastal hamlets of Thoothukudi, Tirunelveli and Kanyakumari Districts. He further submits that after receiving the report from the former District Collector of Thoothukudi, the Government of Tamilnadu also appreciated the fact that illicit mining have occurred in a large scale. So on 08.08.2013, the Government of Tamil Nadu has constituted a special team under the head of the second respondent herein to conduct the probe in the wake of violations in beach mining on Thoothukudi District. Further, the Government of Tamil Nadu had also ordered the suspension of sand mining in Thoothukudi District so as to ensure smooth conduct of inspection. He further submits that pursuant to the order of the Government, the special team inspected mining lease areas at Vaipar and Vembar in Vilathikulam Taluk, Manapad and Madhavankurichi in Thiruchendur Taluk and Padukapathu and Periyathalai in Sathankulam Taluk on 12th, 13th, 19th, 20th, 29th and 30th of August 2013 in Thoothukudi District. After completion of the inspection, the second respondent has submitted the report to the Government on 17.09.2013. He further submits that after receiving the report of the special team, the Government of Tamil Nadu has extended the probe into Tirunelveli, Kanyakumari, Trichy and Madurai Districts on 17.09.2013 itself. Further, the Government of Tamil Nadu has also ordered to stop the mining activities in those areas till the completion of the probe. Thereafter the special team had started the field survey in Tirunelveli and Kanyakuamari Districts during September, 2013 and completed the probe in the month of November 2013. But, the report was not submitted to the Government of Tamil Nadu.
25. The impleading petitioner further submits that despite repeated requests from the Civil society, the Government of Tamil Nadu had failed to release the report. The said delaying attitude of the Government creates doubt on the minds of common public regarding the intention behind it. Further, the special team headed by the second respondent had also not submitted the report about illicit mining at Tirunelveli, Kanyakumari, Tirchy and Madurai Districts to the Government, even after completing the probe in the month of November 2013 itself. It is the duty of the second respondent to submit the report of illicit sand mining in coastal areas immediately to the Government for taking further action. The delay of submitting report to the Government would also affect the genuineness of the report. Further, there is an apprehension of malpractice also, since the beach sand mining mafias are very influential and having money and political power. Hence, on 03.02.2014, he made a representation to the first respondent herein stating all the above said facts in this regard. But, the first respondent did not take any serious steps based on his representation. But the mining mafias are continuing their activities illegally in spite of the ban imposed by the Government which is in on force. On 03.02.2014 itself, he made representation to the first respondent, but he missed the postal receipt. So, again on 11.04.2014, he made the same representation to the first respondent for necessary action.
26. The impleading petitioner further submits that he has also filed a Public Interest Litigation in W.P.(MD)No.6683 of 2014, before the Hon'ble Madurai Bench of Madras High Court seeking for a writ of mandamus, directing the Secretary, Department of Revenue/Head of Special Team to submit the special investigation team report of illegal sand mining in Tirunelveli, Kanyakumari, Trichy and Madurai Districts to the Government of Tamilnadu forthwith and take suitable action against the orders based on the report within the time stipulated by the Hon'ble Court. The same was admitted and pending.
27. The impleading petitioner further submits that it is just and necessary to implead the petitioner herein. He further submits that he has locus standi to get impleaded in the writ petition as he is a native of Southern Tamilnadu and directly affected and aggrieved by the illicit sand mining. Further the marginalized and downtrodden sector of people of the area will be affected, if the order of the Department is not implemented and the livelihood of the people will also be affected. He further submits that he is a proper party to get impleaded in the writ petition since he has materials to portray before this Court to show that the order of cancellation is just and proper. He further submits that to reach the ends of justice, a fair hearing on the issue has to be given to all the parties aggrieved by the act of illicit mining activities.
28. The impleading petitioner further submits that the impact on environment by the illicit mining is voluminous one. Due to such large scale mining activities, the ground water level has decreased in the locality. The natural sand mounds along the seashore were excavated and the mining activities held under the earth and mining had been carried out till the rock slides available under earth were visible. Due to the acts of illicit mining and leaving the effluents and residues after chemical process has caused a severe pollution in the environment and the local people are affected by skin diseases and intestinal diseases. The illicit sand mining is held at large level by using 10 numbers of Volvo earth movers which are able to carry 100 tonnes per trip and apart from that the Heavy carriage such as Tauras vehicles in 60-70 numbers are employed in illegal sand mining process. He further submits that after taking a detailed survey and the materials placed before the authorities, they passed the present order to cancel the mining process licence and by virtue of interim stay granted by this Court, illicit ore sand miners are continuing their illegal activities by hiding under the veil of order of stay granted by this Court. He further submits that the field level investigation initiated by the authorities is still in force and if such interim stay is continued, an impartial, independent and comprehensive enquiry upon the illicit mining will be under hindrance and interference. If the mining activity continues there, the living environment of the locality will be diminished from bad to worst situation and the entire villagers will be constrained to relocate by vacating their native villages. Further, apart from people, the environmental stability and chain of sustenance in the locality has been affected in a bitter way. Further, the flora and fauna of the locality is being under the perennial threat. Hence, he has prayed to implead himself as the proposed respondent.
29. The highly competent senior counsel Mr.A.R.L.Sundaresan appearing for the petitioner submits that the orders of rejection of schemes of mining are "cyclostyled" orders, that is to say, they are identical orders which are merely copied from one to the other, without any application of mind to the individual merits of each case; That the orders of rejection of the Schemes of Mining have been passed without consideration of the replies submitted by the petitioner, while re-presenting the relevant schemes of Mining. In respect of mining operation without scheme, according to Section 5(2)(b) of MMDR Act, the State Government, shall not grant the mining lease unless it is satisfied that there is a mining plan duly approved by Central Government. In this case, all the areas the State Government, already granted mining lease. Hence there is a mining plan duly approved by Central Government. According to Rule 22A of MC Rules, the mining operation to be undertaken in accordance with the duly approved mining plan. According to Rule 22(6) of MC Rules, the mining plan once approved for shall be valid for the entire duration of the lease. Hence, once the mining plan is valid for the entire duration, and since the lessee has to carry out the mining operation in accordance with the approved mining plan, the mining lease cannot be suspended merely for non-compliance of submission of scheme of approval of scheme, as the scheme is a tentative scheme valid for 5 years showing the mining, production, waste generation and exploration etc., This may vary due to the market trend. In respect of non-possibility of replenishable reserve to the patta lands, the highly competent senior counsel during argument brought to the notice of the judgment of this Court made in W.P.No.5386 of 1997, dated 04.12.1997 and Division Bench judgment made in W.A.No.69 of 1998, and C.M.P.No.423 of 1998, dated 30.04.1998 in which it was clearly decided that this is a renewable deposit by reason of continuous wind and wave action and the wind will transport the same to the patta lands. No person has right to block the wind movement or action by which garnet is carried out by the wind to the near by patta lands. Hence deposition of garnet by wind action has already been decided by this Court and confirmed by Division Bench. Accordingly, the respondent also approved the mining plan with replenishable deposit reserve. Hence he cannot oppose the replenishable deposit in the scheme. In respect of estimation of replenishable reserve, this is only estimation, not exact calculation as, no one has control over the nature and no one can calculate the exact quantity of replenishable deposit. He further pointed out that the Government of India, appointed a committee viz., "Nagar Committee" who also confirmed that "the collection of replenishable deposit accumulated within the lease hold area is not illegal." That being so, when the lessee has a valid mining plan when carrying out the mining operation in accordance with the approved mining plan, the lease cannot be suspended. Moreover, when all the points are attended by the RQP and when the original mining plan is approved with replenishable deposit, the approval of scheme cannot be refused for the same reason. That the orders of rejection of Schemes of Mining have been passed without complying with the principles of natural justice. He further submits that the first respondent had passed orders and rejected the petitioner's schemes of mining plans. The said orders are identical and cyclostyled without any application of mind and as such, the said order is not found to be fit to be proceeded with any further. The petitioner had submitted a suitable reply to the first respondent, but the same was not considered and as such, the impugned order is not valid under law. The mining plan is valid for 20 to 30 years. Further, the respondent had approved the original mining plan after observing all legal formalities and as such, the first respondent could not reject the schemes of mining. Therefore, the impugned order passed by the first respondent runs against the principles of natural justice. Further, the impugned order is not a final one and therefore the petitioner has filed the above writ petition in order to point out the irregularities committed by the first respondent in their impugned proceedings, since prior to passing this order no first stage of enquiry was initiated and as such, the Article 14 and 21 of Constitution is violated. Hence, the writ petition is maintainable for challenging the impugned order.
30. The highly competent senior counsel appearing for the petitioner further submits that if the first respondent's impugned order had been passed after conducting a comprehensive enquiry, then the petitioner can file a revision petition under Rule 57 of the Mineral Conservation and Development Rules. In this case, the respondent had violated the principles of natural justice since they had not conducted any domestic enquiry before passing the said order. In order to rectify the same, the writ petitioner has approached this Court by invoking Article 226 of Constitution of India. The highly competent senior counsel had cited a judgment in (2007) 10 SCC 88 (M.P.State Agro Industries Development Corporation Ltd., v. Jahan Khan, wherein the Hon'ble Apex Court observed that where the writ petition seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders of proceedings are wholly without jurisdiction or the vires of an Act is challenged, an alternative remedy does not operate as a bar. In the instant case, all the three points are squarely applicable, therefore, the impugned order does not warrant execution. The highly competent senior counsel has cited another judgment in Satwati Deswal v. State of Haryana reported in (2010) 1 SCC 126, wherein, the Hon'ble Apex Court pointed out that if there had been a violation of a principle of natural justice, in the instant case, the first respondent did not give any opportunity to the petitioner and passed the impugned order which is absolutely partisan. The first respondent mentioned in the impugned order that most of the technical points are not complied with. If the first respondent provides an opportunity, the petitioner may comply with the same. Further, the petitioner has not violated any legal points and therefore, he is entitled to receive renewal of the mining scheme. The other judgment cited by the highly competent senior counsel, which is reported in 2004(4) CTC 727 (Masilamani Vs. Murugesan), wherein, the learned Judge pointed out that the respondent cannot pass cyclostyled orders without an appropriate application of mind. Further, Rule 22(6) reads that a mining plan once approved shall be valid for the entire duration of the lease, but the scheme of mining is valid for only 5 years since the petitioner's mining leases are valid for 20 years. As per Rule 12 of the Mineral Conservation and Development Rules provides that before the expiry of the scheme in mining, a fresh scheme of mining should be submitted and approval sought. Accordingly, the petitioner has submitted a scheme of mining for approval prior to the mandated expiry of 120 days. The respondents have adopted a back door method and passed the impugned order, which does not portend to be required justice. In the instant case, the following are noted while going through the Act and Rules:-
(1) Section 5(2)(b) of the MMDR Act makes is mandatory to obtain a mining plan before the grant of a mining lease;
(2) Rule 22 of the Mineral Concession Rules deals with the Mining Plan (3) Rule 22(5) says that along with the mining plan, a tentative scheme of mining is to be submitted. This is an indication that a scheme of mining is not accorded the same importance under the Act as a Mining plan.
(4) Rule 22(6) says that a mining plan once approved shall be valid for the entire duration of the lease, but the Scheme of Mining is valid for only five years. The Scheme of Mining is therefore important only to the extent of indicating how the miner will be proceedings during a five-year period, which forms part of the much longer time period for which the mining lease is valid. It was admitted in all these cases that the petitioner's mining leases are in all for twenty years, and are in force as on date.
(5) Rule 12 of the Mineral Conservation and Development Rules provides that before the expiry of the scheme of mining, a fresh scheme of mining should be submitted and approved.
(6) Rule 12(4) makes it incumbent upon the authorities to consider the Scheme of Mining within 90 days, and convey their approval or refusal of the Scheme.
(7) Rule 12(5) says that once the Scheme is submitted, if the authorities fail to pass orders on the Scheme of Mining one way or the other within 90 days, it is deemed to be approved.
(8) Rule 13(1) says Holder of mining lease shall carryout mining operations in accordance with the approved mining plan approved under Rule 9 or 10 or the scheme approved under Rule 11 or 12.
(9) Rule 13(2) of MCD Rules says that if mining operations are not carried out in accordance with the mining plan as referred to under Sub Rule1, the RCM or the authorized officer may order suspension of all or any of the mining operations and permit continuance of only such operations as may be necessary to restore the condition in the mine as envisaged under the said mining plan.
This will establish that mining operation can be carried out either in accordance with the approved mining plan or the scheme of mining. In case, the scheme of mining is not approved, as long as the lessee continues the mining operation in accordance with the approved mining plan, the mining operation cannot be suspended, as the mining plan approved is valid for the entire lease period as per Rule 22(6) of MC Rules. It is not the case of the respondent that the petitioner did not carry out the operation in accordance with the approved mining plan. Hence, the suspension of mining operation is without application of mind.
31. The highly competent senior counsel appearing for the petitioner further submits that in the instant case, the respondent had returned the scheme of mining for certain complaints and the same was suitably complied with and the petitioner herein represented the scheme of mining with a detailed letter and had given explanation. After receipt of this submission, the respondent had rejected the scheme of mining without assigning any valid reason and had also not called the petitioner for future clarification regarding technical points to enable the carrying out of the same. Under these circumstances, the petitioner is entitled for an opportunity in order to execute the technical points for future processing in the scheme of mining. Further, the respondent's order is not a speaking order, but only a one-line order. He further submits that the petitioner is eligible to proceed with the operation of scheme of mining for 20 years and as such, the petitioner is eligible for a renewal of a scheme of mining sand, as the petitioner had not committed any aberrations in his mining operations except some technical points which can be set right at any time. On the other hand, if the scheme of mining is not renewable, then the original scheme of mining becomes violated.
32. The highly competent senior counsel appearing for the petitioner further submits that the respondent is discharging a quasi-judicial function and as such, he is required to apply his mind on the papers before passing an order. When all the returns pointed out on 01.01.2014 had been complied with and re-presented on 25.01.2014, the respondent passed a cyclostyled order rejecting the scheme of mining with an one-line order i.e., "previous return not complied with". The sort of stereotyped orders amounting to 19 is not appropriate or acceptable. The petitioner has submitted a scheme of mining for renewal prior to the expiry of 5 years initial period. Therefore, the petitioner stands eligible for a future renewal.
33. The very competent Central Government Standing Counsel, Mr.Ramesh, appearing for the first respondent argued that the petitioner had granted a mining scheme at Levinjipuram Village, to an extent of 4.09.5 hectares in Survey Nos.476/3A1, 477/1A1 dated 18.12.2003, which expired on 31.03.2011. According to Rule 12(3) of Mineral Conservation & Development Rules, the lessee/writ petitioner herein ought to have submitted a mining scheme at least 120 days prior to the approved mining scheme i.e., on or before 1st December 2010. Since no such mining scheme was submitted but mining operations were carried out, a violation-cum-show cause notice was issued on 13.09.2013 to the petitioner allowing 30 days time for a reply. But, the petitioner has not submitted the draft scheme of mining for approval. Therefore, an order of suspension of mining operation was issued on 15.10.2013, which is impugned herein in the writ petition. This order has been passed after adopting due process of law, as such, the said order is found to be fit for execution.
34. The very competent Central Government Standing Counsel appearing for the first respondent further submits that after passing the said order, the petitioner had submitted a draft mining scheme on 18.10.2013 for further approval. A statutory inspection / field-verification was conducted on 10.12.2013 , for examining the draft mining scheme. After conducting examination, scrutiny comments were issued on 01.01.2014 and the petitioner was required to rectify the deficiencies. On 25.01.2014, the petitioner re-submitted the draft scheme which was found incomplete and he has not rectified the deficiencies. On 05.03.2014, the draft mining scheme was returned requiring him to rectify the deficiencies mentioned earlier. Subsequently, the petitioner has not submitted the draft scheme, but approached this Court by way of writ petition.
35. The very competent Central Government Standing Counsel appearing for the first respondent further submits that instead of rectifying the defects and resubmitting the draft scheme, he has filed the above writ petition and obtained an interim order and on the strength of this Court's interim order, is removing the minerals. If the petitioner is aggrieved by the impugned order, he has to file a revision under Rule 57 of the Mineral Conservation and Development Rules, 1988. The petitioner has already filed a civil suit in O.S.No.50 of 2014 on the file of District Court, Tirunelveli, which is pending enquiry. Under the circumstances, the petitioner has filed the above writ petition on the same cause of action for the same relief, which is res-judicata. Therefore, the writ petition is not maintainable.
36. The very competent Central Government Standing Counsel appearing for the first respondent further submits that the mining operation was already stopped due to the order of State Government vide Government Order in G.O.(Ms)No.156, dated 08.08.2013, G.O.(Ms)No.173, dated 17.09.2013 and R.C.No.M2/42049 dated 23.09.2013 respectively, on the basis of various other complaints and reasons. The first respondent passed an order dated 15.10.2013, for non-approval of scheme of mining, but the State Government had issued G.Os' before passing of the impugned order by the first respondent. Therefore, the cause of action of the first respondent's order and the cause of action of the G.Os' of the State Government are entirely different, but the petitioner has filed the above writ petition on a separate cause of action. Further, the licencing and implementing authority is the State Government. Any applicant intending to obtain mining lease, shall submit a mining plan to Indian Bureau of Mines along with concerned letter from the State Government as per Mineral Concession Rules.
37. The very competent Central Government Standing Counsel appearing for the first respondent further submits that all of the mining plan and mining scheme are submitted to the Department through recognized qualified persons. Detailed guide lines have been framed by the Indian Bureau of Mines and the said guide lines are available with all the recognized qualified persons. Further, the scheme of mining should be submitted to the first respondent atleast 120 days prior to the date of expiry of the 5 years period as per Mineral Concession Rules. In the instant case, as there was no approval scheme of mining document at all, the entire operation has been suspended. The petitioner was granted a scheme of mining operation which was in effect from the year 2006-2007 to 2010-2011 and the approved mining plan expired on 31.03.2011. Thereafter, the petitioner does not have any approved scheme of mining for continuing the mining operation. Therefore, show cause notice and suspension order was passed. The petitioner had submitted a draft scheme of mining operation for approval with the fresh proposals for the period of 5 years. After receipt of the draft scheme of mining, the first respondent's subordinate officers have jointly inspected the said mine on 10.12.2013, and scrutiny remarks were sent on 01.01.2014 to the petitioner and recognized qualified person to attend to the correction in the draft scheme of mining. The recognized qualified person has submitted two modified copies to the first respondent on 25.01.2014. The re-submitted document was scrutinized based on letter No.TN/TNL/GNT/MS-1009, MDS, dated 01.01.2014.
38. The very competent Central Government Standing Counsel appearing for the first respondent further submits that most of the technical points have not been attended to. Besides this, the estimation of replenishable reserves has been made on hypothetical basis, whereas, no part of the mining leases area falls between High Tide Line (HTL) and Low Tide Line (LTL). The very competent counsel further submits that the impugned order has been passed after considering the re-submission of scheme of mining for approval and also the inspection report. As such, there is no lapse or shortcomings in the said order. Hence, the highly competent counsel entreats the Court to dismiss the above writ petition.
39. Mr.T.N.Rajagopalan, highly competent Special Government Pleader appearing for the respondents 2 to 4 submits that the first respondent has suspended mining operations under Rule 13(2) of the Mineral Conservation and Development Rules, 1988, since the writ petitioner had not submitted the final modified scheme of beach sand mining, within the specified period. Furthermore, the Government is the authority to grant mining leases in the Government poromboke land. The Commissioner of Geology and Mining is the competent authority to grant mining lease in the patta land. The impugned order has been passed by the Regional Controller of Mines against the writ petitioner as he had violated the procedures as per the Mineral Concession Rules. The Government had issued G.Os' and instructed all the Assistant Directors of Geology and Mining attached at Thoothukudi, Tirunelveli, Kanyakumari, Madurai and Tiruchi Districts not to issue transfer permits to the private lessees. Hence, the highly competent Special Government Pleader entreats the Court to dismiss the above writ petition.
40. The highly competent Government Pleader Mr.S.T.S.Murthi, appearing for the fifth respondent submits that the first respondent has passed the interim order against the writ petitioner. Further, the fifth respondent is the competent authority to grant mining lease in the Government poromboke land. The writ petitioner had not strictly adhered to Minerals Conservation and Development Rules and Mineral Concession Rules. Hence, the writ petitioner's scheme of sand beach mining had been rejected. Further, the writ petitioner has to submit his application to the first respondent within 120 days prior to the expiry of the initial lease period. The fifth respondent is not vested with authority to consider the petitioner's scheme of beach sand mining. He further submits that the State Government had issued two G.Os' viz., G.O.Ms.No.156 dated 08.08.2013 and G.O.Ms.No.173, dated 17.09.2013 in order to stop the transport permit to the private lessees in the area, viz., Thoothukudi, Tirunelveli, Kanyakumari, Madurai and Tiruchi. As such, the transport permit has been stopped before passing the impugned order. The impleading petitioner has also filed a writ petition before the Madurai Bench of Madras High Court, which is pending enquriy. Hence, the highly competent Government Pleader entreats the Court to dismiss the above writ petition.
41. The highly competent counsel, Mr.R.Sankarasubbu appearing for the impleading petitioner submits that the impleading petitioner is a leading practicing advocate at Thoothukudi and Tirunelveli District and also functioning as the District Secretary of the Human Rights Protection Centre, Tamil Nadu. Further, the petitioner is doing social service to the public to a large extent especially, the downtrodden people. Further, the petitioner has filed several public litigations in order to safeguard the public interest. It was submitted that the impleading petitioner has extended maximum efforts in the Kudankulam power project, Mullai periyar dam issue, right of equal education etc., Now the impleading petitioner is raising objections against the writ petitioner, who is carrying out illicit beach mining in the coastal hamlets of Thoothukudi, Tirunelveli and Kanyakumjari Districts and this sort of illicit mining is being carried out for the last 25 years. In order to control the illicit beach mining operation, the impleading petitioner levelled a detailed complaint to the District Collector at Thoothukudi. After receipt of the said complaint, the District Collector and the Subordinates had conducted field inspection and found that the writ petitioner is operating illicit beach mining. In order to prove the same, the District Collector had submitted a detailed report with material evidence to the first respondent herein viz., the Regional Controller of Mines.
42. The highly competent counsel appearing for the impleading petitioner further submits that the impleading petitioner and other 5 advocates have formed a "Fact Finding Team" and conducted field study on the affected coastal hamlets at Thoothukudi, Tirunelveli and Kanyakumari Districts, wherein, the writ petitioner is carrying out illicit beach mining. This message has been published through various press medias. For operating beach mining manual work force could be introduced, but the writ petitioner had put into place a large scale of machineries which is also tantamount to high irregularities. Further, in the process of refining the beach sands, the writ petitioner companies are using hazardous chemicals and drained chemicals and contaminated radio active waste water into the sea and within the coastal areas and as a result, the vicinity near the sea water has become discoloured and moreover, sea organisms and sea food have become seriously affected and this affliction has extended to mankind. Besides, due to the environment contamination, the residents of the local area have been affected and diseases such as cancer, brain related diseases, kidney failures and skin diseases have become prevalent and has also affected their respiratory system. Further, the respondents herein have not taken serious action against the writ petitioner who is causing detrimental problems to the public and loss of revenue to the respective Governments. Therefore, the impleading petitioner who is a social worker and part of the judiciary, in order to bring to light the illegalities of the writ petitioner before this Court, has filed the impleading petition before this Court. As both the Governments of Tamil Nadu and Central Government have failed to control this illicit sand mining, the impleading petitioner entreats the Court to control the illicit sand mining being carried out by the writ petitioner without the mandatory lease and sanction. The District Collector of Thoothukudi, who is the competent authority attached to the Government, had submitted his report to the first respondent, after conducting a comprehensive field inspection, which is unshakeable evidence and as such, the writ petition is not maintainable. Further, this Court has granted an interim order in favour of the writ petitioner and on the strength of it, the writ petitioner is continuing the illicit sand mining at the coastal areas. Hence, the highly competent counsel entreats the Court to vacate the interim order also.
43. The highly competent counsel appearing for the impleading petitioner further submits that the impleading petitioner has also filed a Public Litigation in W.P.(MD)No.6683 of 2014 before the Madurai Bench of Madras High Court and the said writ petition was admitted and pending enquiry. Under the circumstances, the writ petitioner has filed the above writ petition without disclosing the earlier writ petition filed by the impleading petitioner, which is against the writ petitioner and others. Hence, the highly competent counsel entreats the Court to allow the impleading petitioner as proposed respondent and dismiss the writ petition.
44. From the above discussions, this Court is of the view that:-
(i) The writ petitioner has challenged the impugned order passed by the first respondent in his proceedings No.TN/TNL/GNT/MS-1009-MDS, dated 05.03.2014, an extract of which runs as follows:-
"most of the technical points communicated vide letter of even no. dated 02.01.2014 has not been attended."
It is evident on scrutiny of the said order that the first respondent, who is the competent authority and has the jurisdiction and command over the said mining area, has not mentioned about the illicit sand mining operation on coastal areas.
(ii) The issue as arising from the writ petition is whether the writ petitioner is entitled to obtain further renewal from the first respondent for operating on a continuous basis for a period of additional 5 years after giving attention to the technical points which has been raised by the first respondent. As such, the impugned order passed by the first respondent is an issue between the writ petitioner and the first respondent and as such, the impleading petitioner is not affected by the said order. Therefore, the impleading petition is not maintainable.
(iii) The impleading petitioner has filed a writ petition in W.P.(MD)No.6683 of 2014, against the writ petitioner and others and has contended that the writ petitioner is operating illicit sand mining at the said area. Therefore, the impleading petitioner has adequate opportunity to establish the said allegation regarding the said illicit sand mining before the concerned Court.
(iv) The impleading petitioner and 5 others formed a "Fact Finding Team" in order to determine the petitioner's sand mining operations alone. However, the Fact Finding Team is not recognized by either the State or Central Government. It is therefore, evident that the Team has been formed with an intention to run a parallel form of Government / judiciary.
(v) When regulatory authorities viz., State and Central Government machineries are already functioning efficiently, it is difficult to understand why the petitioner along with 5 other advocates have constituted a "Fact Finding Team", when the case on hand is apparently clear for resolution. On the contrary their able counselling could be extended to needy litigants which would turn out a blessing in disguise, but in the instant case, their actions are questionable to say the least, since they are functioning out of Court through an unconstitutional group or committee; so unless a special assignment/arrangement is provided by the Court, because Advocates form the second tier of the Judiciary and as such, they are equally responsible to maintain the decorum of the Court and acquire the appreciation of the general public.
(vi) The petitioner had submitted a draft mining scheme on 18.10.2013 for further approval. After receipt of the said application, a statutory field inspection was conducted on 10.12.2013, for an examination of draft mining scheme. After examination, the first respondent had issued comments on 01.01.2014, to the writ petitioner to rectify the deficiencies and hence, the writ petitioner resubmitted the draft scheme on 25.01.2014, after rectifying all the deficiencies. As the first respondent was not satisfied with the writ petitioner's compliance, the draft mining scheme was returned and the impugned order has been passed. As such, it is evident that the first respondent, without getting clarification or explanation has passed the impugned order which is prejudicial to the interest of the writ petitioner.
(vii) The writ petitioner has submitted an application for a scheme of beach sand mining for a further period of 5 years. This Court is of the view that the Rule framed by the first respondent that the application has to be submitted before the stipulated period of 120 days prior to the expiry of the initial period, is only meant for administrative purpose and is not mandatory and as such, the filing of the application by the writ petitioner after the stipulated period, cannot be taken as a serious violation. As such, this Court holds that the writ petitioner's application for draft scheme for beach sand mining may be processed further.
(viii) As the one-line orders have been passed in a cyclostyled fashion, in 19 different cases in cryptic fashion without regard to the intrinsic merits of each case, and have been passed without hearing, this Court is of the view that the orders cannot stand the scrutiny of law. The respondents have passed certain orders which are said to be under Rule 13(2) of the Mineral Conservation and Development Rules, which are consequential to these orders rejecting the Schemes of Mining. Needles to say, when the main order of rejection of the Scheme of Mining is itself held to be illegal, all the consequential orders will fall to the ground. As pointed out by the Division Bench in 2011(4) CTC 492, the existence of an alternate remedy will not be a bar where the order challenged is passed without application of mind.
45. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on all sides and on perusing the impugned order passed by the first respondent and on further perusing the documents of the said parties and taking into consideration, the views listed above, this Court allows the above writ petition. Consequently, the impugned order of the first respondent in order bearing No.TN/TNL/GNT/MS-1009-MDS, dated 05.03.2014 is quashed. The impleading petition in M.P.No.4 of 2014 in W.P.No.12875 of 2014 is dismissed. There is no order as to costs. Consequently, connected M.P.Nos.2 and 3 of 2014 is closed.
07.07.2014
Index : Yes/No.
Internet : Yes/No.
r n s
To
1.The Regional Controller of Mines,
Indian Bureau of Mines,
C-4A, Rajaji Bhavan,
Besant Nagar,
Chennai-600 090.
2.The Secretary to Government,
State of Tamil Nadu,
Industries Department,
Fort St.George,
Chennai.
3.The Commissioner of Geology and Mining,
Guindy,
Chennai - 600 032.
4.The Assistant Director of Geology and Mining,
Tirunelveli.
5.The District Collector,
Tirunelveli District,
Tirunelveli.
C.S.KARNAN, J.
r n s
W.P.No.No.12875 of 2014 &
M.P.Nos.2 to 4 of 2014
07.07.2014