2018 (1) TMI 1576 - HC - Indian Laws

Import of Sand - applicability of provisions of Mines and Minerals (Development and Regulation) Act, 1957 and the Rules framed thereunder - Whether the impleading party is entitled to be impleaded? - HELD THAT - The impleading party claims to be a purchaser of sand from the writ petitioner. In view of the impugned actions, he is unable to receive the sand. Therefore, under the circumstances, this court finding force in the contentions of the Learned Senior Counsel for the proposed party, allows C.M.P.No.11317/2017 impleading the proposed party as the 7th respondent in the Writ Appeal. Whether the writ petitioner is liable to register and seek permits forstorage, transportation and sale of imported sand from outside india as per the MMDR Act, 1957, TNMMR 1959 and Tamil Nadu Prevention of Illegal Mining, Transportation and storage of Minerals and Mineral Dealers Rules 2011? - HELD THAT - This Court finds that the existing Act and Rules are applicable only to sand and minerals quarried in India and the Learned Single Judge had rightly rejected the contentions of the appellants and held that the appellants cannot rely upon the existing provisions to insist the respondents / writ petitioners to obtain permits for storage and transportation of Imported Sands and the appeal on this question fails. Whether the directions issued by the writ court exercising its powers under Article 226 of the Constitution of India needs interference? - HELD THAT - When the directions issued by the Learned Single Judge are examined, this Court is of the view that the directions are not legislative directions but only directions issued for non-compliance of statutory provisions and for failure to safeguard the environment and the ecology, which in the opinion of this Court, is duty enshrined on the High Court under Article 226 of the constitution of India. Further, when there is an alternate source of sand, which is permissible in law, this Court is of the view that the directions cannot be termed as beyond the scope of the writ petition. Insofar as the contention that the directions can be issued only by the Division Bench, this Court is not in consonance with same. The directions were issued by the Learned Single Judge in exercise of his power under Article 226 of the Constitution, which is wider even than the power of the Apex Court under Article 32. The law on this point is settled in many cases. This High Court under Article 226 of the constitution has wide powers to issue directions to not only protect the fundamental rights but also the constitutional rights. The directions issued are relating to and connected with the subject matter of lis before the court. Therefore, this Court is of the view that the learned Single Judge was well within the powers of the Court under Article 226 of the Constitution and the second question is answered in negative against the appellants. Another ground that was raised is that the directions have been issued without giving opportunity to the State and lessees. This statement is fallacious for the simple reason that the Collectors on behalf of different Districts represented the State in this Writ Appeal and the learned Advocate General of the State has argued their case, not only before the Division Bench and also before the learned Single Judge. Further, the State has now issued a Government order permitting import by individuals with certain conditions. Therefore, the contention also fails. Whether this Court has a legal obligation/mandate to preserve ecology, i.e Sand, Forests, Water, Air, etc for the present and for future generations as guaranteed under Article 21 of the Constitution of India by issuing appropriate directions? - HELD THAT - The courts have stepped in to protect the environment by curbing mining activity, whenever the state has failed in its duty under Article 48 A and 51 A. Also, from the various reports referred above, it is evident that the directions and the orders of the Hon'ble Apex Court and this Court referred above have been violated and the illegal mining activity has not been curbed and the mining has been continued beyond permissible limits, resultantly, causing irreparable damage to the ecology - The scope of judicial review is not limited to validity of enactments alone but would also be applicable to policy decisions when the decisions either directly or indirectly violate the fundamental rights, more so in cases where the interest of the public is at stake.If the ecology is not protected, there is no doubt that it will endanger the very existence of human life and we might not even have a future generation.Therefore, as a custodian of the fundamental rights and the constitutional rights, it is the duty of this court to ensure that environment is protected and is not subjected to degradation, when the authorities have failed. Hence, the third question is answered in affirmative. This Court is of the view that the appellants have not made out any case for interference with the order of the Learned Single Judge - Appeal dismissed.

Summary

Issues Involved:
1. Applicability of the Mines and Minerals (Development and Regulation) Act, 1957, and Tamil Nadu Minor Mineral Concession Rules, 1959, to imported sand.
2. Legality and appropriateness of the directions issued by the writ court under Article 226 of the Constitution of India.
3. Obligation of the court to preserve ecology and environment under Article 21 of the Constitution of India.

Detailed Analysis:

Issue 1: Applicability of the MMDR Act and TNMMCR to Imported Sand

The court analyzed whether the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act), and the Tamil Nadu Minor Mineral Concession Rules, 1959 (TNMMCR), apply to imported sand. The court noted that the MMDR Act and the TNMMCR were primarily designed to regulate the mining and transportation of minerals within India and did not explicitly address imported sand. The court observed that the MMDR Act aims to regulate reconnaissance, prospecting, and mining operations within India and does not contemplate imports. The court also highlighted that the Tamil Nadu Prevention of Illegal Mining, Transportation, and Storage of Minerals and Mineral Dealers Rules, 2011 (Rules 2011), specifically exclude "sand" from their purview, indicating that the existing legal framework does not cover imported sand.

The court further noted that the Central Government had permitted the import of sand to meet the high demand and control the price rise of natural sand, with a notification dated 07.11.2014. The court concluded that the existing rules and regulations under the MMDR Act and TNMMCR do not apply to imported sand, and the writ petitioner was not required to obtain permits for storage and transportation of imported sand under these rules.

Issue 2: Legality and Appropriateness of Directions Issued by the Writ Court

The court examined whether the directions issued by the writ court were within its powers under Article 226 of the Constitution of India. The directions included stopping all sand mining/quarrying activities in Tamil Nadu within six months, issuing appropriate directions to authorities to enable the importers to transport and sell imported river sand, and taking measures to curb illegal mining and transportation of sand.

The court noted that the directions were issued in the larger public interest to protect the environment, river beds, and agricultural activities. The court emphasized that the state had a duty to protect the environment and prevent illegal mining activities. The court also referred to various judgments of the Supreme Court, which highlighted the importance of preserving natural resources and the environment for the benefit of present and future generations.

The court concluded that the directions issued by the writ court were not legislative in nature but were necessary to ensure compliance with statutory provisions and to protect the environment. The court held that the writ court was well within its powers under Article 226 of the Constitution to issue such directions.

Issue 3: Obligation to Preserve Ecology and Environment under Article 21

The court addressed the question of whether it had a legal obligation to preserve ecology and environment under Article 21 of the Constitution of India. The court referred to various judgments of the Supreme Court, which recognized the right to a healthy environment as an integral part of the right to life under Article 21. The court emphasized that the state has a duty to protect and improve the environment and safeguard natural resources.

The court noted that the preservation of rivers and river beds is crucial for maintaining ecological balance and ensuring the availability of water for agricultural and domestic use. The court highlighted the adverse effects of illegal sand mining on the environment, including depletion of groundwater, erosion of river banks, and destruction of aquatic habitats.

The court concluded that it had a duty to protect the environment and ensure sustainable development. The court held that the directions issued by the writ court were necessary to preserve the ecology and environment and were in line with the constitutional mandate under Article 21.

Conclusion:

The court dismissed the appeal and upheld the order of the writ court, directing the state to comply with the directions issued to protect the environment and curb illegal sand mining activities. The court emphasized the importance of preserving natural resources and ensuring sustainable development for the benefit of present and future generations.