9911796707
TMI Blog2018 (1) TMI 1576X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... ver sand of one lakh MT from Sungai Pahang River, Kuantan City, Malaysia. After obtaining certificate of Plant Quarantine from Government of Malaysia, the first shipment of sand of 55,443.84 MT reached Tuticorin Port in India on 14.10.2017 through Indian waters by obtaining necessary permission from the Director General of Lighthouses and Lightships, Ministry of Shipping. (iv) It is the further case of the writ petitioner that they had paid a sum of ₹ 1,80,00,000/- (Rupees one crore and eighty lakhs only) towards Port Wharfage Charges, Port on-board levy charges, Port Royalty Charges, Port Levy for Shore Handling Charges, Port Royalty Charges for Shore, Labour Charges, Customs Bill Filing Charges, Transport Charges, Yard Plot Rent, etc., through the clearing agent viz., M/s.Janaki Traders. The writ petitioner has also paid to the tune of ₹ 38,39,347/- (Rupees thirty eight lakhs thirty nine thousand and three and forty seven only) towards Goods and Service Tax (GST). (v) After completing the formalities with the Customs Department and the clearance from the Plant Quarantine authorities, the imported river sand was permitted to be taken out of the Port. The writ peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver sand and exclusion of other silica sand and other sand, which is also notified by the Government of India in the Gazette notification, dated 10.02.2015. The term "mineral dealer" has been defined under Sub-rule (xv) of Rule 2, which states that any person, who carries on the business of buying, selling, storing, supplying, transporting, distribution or delivering for sale of mineral or its product and includes. There is a prohibition under Rule 3 of Rules 2011 and the sub Rule (1) of Rule 7 deals with the registration of imported minerals, wherein exemption has been given for inspection, if the imported minerals of the are variety not available in India. For the minerals available in India, all the Rules applied to the regional mineral dealer are also applicable to the imported mineral dealer. Rule 8 of the Rules 2011 deals with the seizure and confiscation of minerals, which was not adhered to under the Act and Rules. (viii) It is further stated in the counter affidavit, that as per Section 4 (1A) of MMDR Act, no person shall transport or store any mineral otherwise than in accordance with the provisions of the Act and the Rules made thereunder. Section 21 Sub-clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, inter-state or intra-state and what are the documents, required to be possessed and displayed to the officers, at the check posts, if any; (g) The State shall establish permanent check-posts within the State with the officers equipped sufficiently to curb and prevent the illegal mining and transportation of sand; the check post officers shall maintain the record of all the vehicles crossing by; the State shall also fix camera at the check posts and connect the same with a common server to ensure that illegal mining and transportation is curbed; (h) The State shall initiate appropriate and immediate action against the persons involved in illegal mining, transportation and storage in the State and proceed for the permanent confiscation of the vehicle involved in the illegal activities and cancellation of the Registration Certificate of the vehicle, without any scope for the owner of the vehicle to plead ignorance; (i) The State shall constitute a Committee to ascertain the loss caused to the Government and take steps to recover the same from the Companies, individuals including the erring Government Servants, whose hand if found, be immediately suspended and prosecuted as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Senior Counsel appearing for Mr.N.Viswanathan, learned counsel for R1 and Mr.V.Kakthirvel, Assistant Solicitor General assisted by Mr.J.Jeyakumaran for R3 to R6 and Mr. Issac Mohanlal, Learned Senior Counsel for the proposed 7th Respondent and also perused the materials on record. 8. The learned Advocate General appearing for the appellants vociferously contended that the direction of the learned Single Judge is in the nature of Legislating laws, which could not be issued and it would amount to transgression into the powers of Legislature and making the application of separation of powers redundant by placing reliance on the judgment of the Apex Court reported in 2017 (5) SCC 16 (State of U.P. v. Subhash Chandra Jaiswal). It is further contended that the general direction in the public interest could be issued only by a Division Bench and not by a Single Judge, that too without providing an opportunity to the appellants/ State and other lessees in the State. 9. The learned Advocate General also relying upon the definition of the "sand" in the Explanation to Rule 38 (C), contended that though Section 2 (xiii) of the Rules 2011 exempt "sand" from the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 and the Goa (Prevention of Illegal Mining, Storage, and Transportation of Minerals) Act, 2013 and contended that the Rules akin to Tamil Nadu Rules would cover imported minerals and that as per the Foreign Trade Policy, covered the importer, who is obliged to follow domestic laws. If the authority over the imported sand is taken away, then the vehicles under the garb of transporting imported sand, are likely to transport sand illegally and would breed illegal mining. 14. The learned Advocate General also contended that the refusal of the learned Singled Judge in coming to the issue as to whether the imported sand is fit for construction purpose or not, would itself vitiate the order and that the quality of the sand is very important, as it could affect the life and safety of the people in the State and that there is a over-riding public interest in the transportation and storage of imported sand. It is also contended that the sand is sold on-line and the on-line permits are issued by the quarries of the PWD. Since the power of the Government to quarry under Section 38(A) of Rules 1959 was approved by the Apex Court in a judgment reported in 2006 (4) SCC 517, the order of the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riate authorities under the Union of India and the Principal of Government Engineering College of the State has tested, who gave a certificate that it is a river sand. 17. The learned Senior Counsel appearing for the first respondent / writ petitioner also referred to the preamble of the MMRD Act to contend that the usage of word "under the control" found in preamble, would make it clear that the Act is not applicable to imported sand and therefore, the Rules deriving powers from the Act cannot cover imported foreign sand and any such policy or Rules contrary to the main Act, would be void. Pointing out to Para 3 of the affidavit filed in support of the writ petition, it is contended that the argument of the Learned Advocate General that the learned Single Judge, travelled beyond the scope of the writ petition is unacceptable, since the learned Single Judge relied upon the judgement of the Apex Court reported in 2010 (13) SCC 1 in this context. 18. The learned Senior Counsel relying upon the definition of Rule 2(xiii), contended that the sand was excluded from the application of Rules 2011 and since the object of both 1959 and 2011 Rules are different, they cannot be treated as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les and Rules 2011, he contended that the learned Single Judge has held that under the existing provision, there is no necessity to either register or obtain licence for the storage, transportation and sale of sand imported from outside India and the existing laws are applicable only to the sand mined within India and the Rules are only restricted to Mines and Minerals within the State and that the Rules 2011 are not applicable for imported sand. 22. It is further contended that in the absence of specific law formaintaining the need for transit pass for the imported sand, insisting upon the same would violate the fundamental right guaranteed under Article 19(1)(g) of the Constitution of India, and reliance was placed on the judgment of the Supreme Court reported in 2006 (2) SCC 545 (State of Bihar and others v. Project Uchcha Vidya, Sikshak Sangh and others). Insofar as Rules of Kerala and Goa States are concerned, they have no relevancy and they are different from the Tamil Nadu Rules and in any case, in the absence of enabling provisions under the Central Act, the Rules are void and if put to test, they have to be struck down. It was also contended by the learned Senior Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n accordance with the provisions of this Act and the rules made thereunder. Section 15:- "15. Power of State Governments to make rules in respect of minor minerals.- .... Section 23-C: "23-C. Power of State Government to make rules for preventing illegal mining, transportation and storage of minerals.-(1) The State Government may, by notification in the Official Gazette, make rules for preventing illegal mining, transportation and storage of minerals and for the purposes connected therewith. .... Rule 2(xiii) of Rules, 2011: 'Mineral' means, all minerals and minor minerals except sand. Rule 6:- 6. Transport permit and Transit pass: (1) No person shall transport or otherwise remove or carry away any mineral from any place without obtaining a transit pass from the Deputy Director. Person desiring such passes should file an application before the Deputy Director in Form 'F' duly specifying all the particulars prescribed therein. (2) The application shall be accompanied by a copy of the permit showing payment of royalty/seigniorage on such mineral or other adequate proof of such payment. (3) On receipt of an application under sub-rule (1), the Deputy Director m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. (vi) The District Collector is empowered to issue any orders for inspections to be caused and for proper implementation of the Act and Rules within the jurisdiction of the concerned district. If any person is found to keep the mineral in the place other than in stockyard or if any grantee of registration is found to commit any offence or contravene any of the provisions of the Act or Rules including any discrepancies noted in Form 'E' in respect of any stockyard, the District Collector shall take suitable action." 26. Before, going into the rival contentions, it is necessary to decide, whether the impleading party is entitled to be impleaded. 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. 27. Now coming to the first question, it has been urged before this court that the existing Rules, more particularly the Rules, 2011 would be applicable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from which powers are derived does not deal with imports, the rules cannot framed in 1959 and 2011 cannot contemplate such a preposition when the import of natural sand has been permitted with a condition to obtain plant quarantine certificate from 2014 onwards. ... 26. A perusal of the above Rules, explicitly makes it lucid that the scope of the Rules was to regulate the quarrying of minor minerals, including sand and regulate the stocking, transportation and sale of such quarried minor minerals, within the State of Tamil Nadu. After introduction of Rule 38-A, the mining activity is to be done only by the Public Works Department and when a person purchases sand from the Department, he has to obtain a licence for storage and transportion. The Rules does deal with the imported sand, be it ordinary sand or silica sand or any other form or for the matter of fact, it cannot deal as because in the first place, the Rules did not deal with the import, the Rules were framed in 1959 and the permission to import with a Plant Quarantine Certificate has been accorded in 2014. Also, The introduction of Rules 38-A, 38-B and 38-C did not alter the original position. At this juncture, it is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed in the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011 cannot be imposed on the importers. The word 'import' used in Rule 7 is applicable in cases of minerals imported from other States as there is only a ban in movement of sand from one State to another. Similarly, the Rules came into force in 2011 and therefore, it cannot be extended to an import permitted by the import policy of the year 2012 and revised by the notification dated 07.11.2014 issued by the Department of Director General of Trade and Finance to obtain a Plant Quarantine Certificate, under the Regulations which though was in vogue in 2003 itself. Therefore, this Court accepting the contention of the petitioner, rejects the stand of the State that the Rules are applicable to the imported goods and therefore, on this ground alone, the petitioner is entitled to succeed." 28. As rightly contended by the Learned Senior Counsels appearing for the 1st and 7th respondents and upon perusal of the preamble and the entire provisions of MMDR Act, this Court can only come to the conclusion that the parent Act, from which the rule making power is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was pari materia with the object sought to be achieved by the present Act. We also find that, in another Act which seeks to protect women in another sphere, namely, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, "respondent" is defined in Section 2(m) thereof as meaning a person against whom the aggrieved woman has made a complaint under Section 9. Here again it will be noticed that the prefix "adult male" is conspicuous by its absence. The 2002 Bill and the 2013 Act are in tune with the object sought to be achieved by statutes which are meant to protect women in various spheres of life. We have adverted to the aforesaid legislation only to show that Parliament itself has thought it reasonable to widen the scope of the expression "respondent" in the 2013 Act so as to be in tune with the object sought to be achieved by such legislations." 30. Per contra, it has been contended on the side of the respondents that when the object of both the rules are different, the definition or expression under one enactment cannot be imported into another. Reliance is placed as under: (i) Union of India v. R.C. Jain, (1981) 2 SCC 308 : 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Cattle Trespass Act, 1871 etc. as the High Court has done." (ii) Jumma Masjid v. Kodimaniandra Deviah, 1962 Supp (1) SCR 554 : AIR 1962 SC 847:- "9. Now the compelling reason urged by the appellant for reading a further exception in Section 43 is that if it is construed as applicable to transfers by persons who have only spes successionis at the date of transfer, it would have the effect of nullifying Section 6(a). But Section 6(a) and Section 43 relate to two different subjects, and there is no necessary conflict between them. Section 6(a) deals with certain kinds of interests in property mentioned therein, and prohibits a transfer simpliciter of those interests. Section 43 deals with representations as to title made by a transferor who had no title at the time of transfer, and provides that the transfer shall fasten itself on the title which the transferor subsequently acquires. Section 6(a) enacts a rule of substantive law, while Section 43 enacts a rule of estoppel which is one of evidence. The two provisions operate on different fields, and under different conditions, and we see no ground for reading a conflict between them or for cutting down the ambit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Minimum Wages Act, 1948. Further, the 1961 Act under Chapter V makes an express reference to the applicability of the Payment of Wages Act, 1936 and the Workmen's Compensation Act, 1923. There is a clear absence of reference to any other legislation in the aforesaid provisions, thereby indicating that the legislature intended to exclude the applicability of the ESI Act. 57. The ESI Act, on the other hand, as has been noticed in the Preamble quoted earlier, is an Act that provides for certain benefits to employees in case of sickness, maternity and employment injuries. It establishes Employees' State Insurance Corporation for the administration of the scheme of Employees' State Insurance and sets up an Employees' State Insurance Fund in which all contributions paid under the ESI Act are held and accordingly administered. The ESI Act also establishes a Special Court for adjudication of disputes and claims under the same. 58. It can be concluded that though the ESI Act, the 1948 Act and the 1961 Act deal with labour and workmen, in essence and spirit they have a different scope and application. The Acts do not appear to have any overlap in their fields of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. (See Johnson v. Moreton [(1978) 3 All ER 37 : 1980 AC 37 : (1978) 3 WLR 538 (HL)] and Baliram Waman Hiray (Dr) v. Justice B. Lentin [(1988) 4 SCC 419 : 1988 SCC (Cri) 941 : AIR 1988 SC 2267] .) There is no presumption that a casus omissus exists, and language permitting the courts should avoid creating a casus omissus where there is none. Therefore, the conclusion of the Division Bench in holding that the order of dismissal passed by the DIG was legal, does not suffer from any infirmity to warrant interference." 31. A careful consideration of the above judgments would reveal that when the language used in the statue is clear and unambiguous and when the object of the enactments are different, there cannot be any reference or incorporation. In fact, in both the judgments relied upon by the appellants, the Apex Court has ultimately rejected the contention holding that when the parent act was not applicable, reading into the same is not permissible. In the case on hand, the Rules 2011 under definition of Minerals in Rule 2 (xiii) specifically excludes" sand". While so, when there is a specific exclusion, the definition in other rules cannot be referred or relied upon, more so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, imposing compensatory taxes for the use of trading facilities do not come within the purview of the restrictions contemplated by Art. 301 and such measures need not comply with the requirements of the proviso to Article 304 (b) of the Constitution." (iii) G.K.Krishnan and others [(1975) 1 SCC 375]. "Regularisation" by stating that the word 'free' in Article 301 does not mean freedom from regulation. There is a clear distinction between laws interfering with freedom to carry out the activities constituting trade and laws imposing on those engaged therein rules of proper conduct or other restraints directed to the due and orderly manner of carrying out the activities. This distinction is described as regulation. The word "regulation" has no fixed connotation. Its meaning differs according to the nature of the thing to which it is applied. The true solution, perhaps, in any given case, could be found by distinguishing between features of the transaction or activity in virtue of which it fell within the category of trade, commerce and intercourse and those features which, though invariably found to occur in some form or another in the transaction or action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r States. In the present case, the import is not from another State, but from another country and the Union Government has permitted the import of sand. 36. The next contention that was raised by the learned Advocate General is that the power to regulate would under certain circumstances include the power to prohibit. The judgment in 1985 2 SCC 116 (K.Ramanathan v. State of Tamil Nadu) has been relied upon. The said contention cannot be accepted for the simple reason that the delegation of power to regulate, does not empower the States to deal with imported sand. As rightly held by the learned Single Judge, the policy decisions on import and export are within the domain of the Union Government under Entry 41 of the Union List of Seventh Schedule. Also, the existing rules are only to regulate the mining/quarrying, transportation and storage of such mined/quarried minerals located within the State and therefore, the right to prohibit can also be only with regard to such minerals. 37. By relying upon the judgment of 2006 4 SCC 517 (State of Tamil Nadu v. P.Krishnamurthy), wherein the challenge to Rule 38A of the MMCR rules was rejected, the learned Advocate General contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also pertinent to mention here from the report of Dr.RavindraPatnayaka, Assistant Professor in Architecture, the most common constituent of sand is silica, usually in the form of quartz. The river sand also will contain silica. Further, in all the documents relating to import, it is clearly mentioned that the sand imported is river sand for construction purpose. Also, the government of Karnataka has already imported river sand from Malaysia to curb illegal mining and at the same time to satisfy the demand. There are many sky scrapers in Malaysia as well. Therefore, the contention of the appellants that the imported sand from Malaysia is not fit for construction activities, is rejected. At this juncture, the plant quarantine certificate has been issued by the appropriate central authority and the principal of a government college under the Department of Technical Education has also certified the imported sand to be river sand. 40. Therefore, under the above facts and circumstances, 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 hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal safeguards that protect individual rights but they cannot push back the limits of the Constitution to accommodate the challenged violation.'" 24. Be it noted, the said case also arose from the High Court of Allahabad where sweeping directions were issued. Thus analysed, we are of the convinced opinion that the High Court has crossed the boundaries of the controversy that was before it. The courts are required to exercise the power of judicial review regard being had to the controversy before it. There may be a laudable object in the mind but it must flow from the facts before it or there has to be a specific litigation before it. Additionally, the High Court should have reminded itself that it cannot enter into the domain where amendment to legislations and other regulations are necessary. We are absolutely conscious that it is the duty of the State Government to discharge its obligations in the matters relating to law and order and remain alert to the issues that emerge. It has a duty also to see that the investigations are speedily completed in an appropriate manner. If there is a failure of law and order situation, the executive is to be blamed. In the maintenance of law a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h permanent staffs. 40. The Honourable Supreme Court in G.Sundarrajan v. Union of India reported in (2013) 6 Supreme Court Cases 620, while emphasizing the role of a State and the welfare of the public to be supreme and deciding the challenge made to the commencement of Kudankulam Project, reiterated as follows: "226. In Charan Lal Sahu v. Union of India [(1990) 1 SCC 613], this Court, while dealing with the constitutional validity of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, observed that the said enactment was passed as a sequel to a grim tragedy that occurred on the night of 2-12- 1984. This Court treated it to be the most tragic industrial disaster in recorded human history. While discussing the concept of parenspatriae, the learned Chief Justice observed that the conception of the parenspatriae theory is the obligation of the State to protect and it takes into custody the rights and the privileges of its citizens for discharging its obligation. While dealing with the said concept, it has been opined that the maxim saluspopuli (est) suprema lex ? regard for public welfare is the highest law. 227. I have referred to the said pronouncement solely to emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een Bhai Thogadia [(2004) 4 SCC 684 : 2004 SCC (Cri) 1387] : (SCC p. 694, para 9) ?9.? Welfare of the people is the ultimate goal of all laws, and State action and above all the Constitution. They have one common object, that is to promote the well-being and larger interest of the society as a whole and not of any individual or particular groups carrying any brand names. It is inconceivable that there can be social wellbeing without communal harmony, love for each other and hatred for none. The core of religion based upon spiritual values, which the Vedas, Upanishads and Puranas were said to reveal to mankind seem to be: "Love others, serve others, help ever, hurt never? and ?sarvaejanasukhinobhavantoo"." ***** ***** ***** ***** 239. I have referred to the aforesaid pronouncements only to highlight that this Court has emphasised on striking a balance between the ecology and environment on one hand and the projects of public utility on the other. The trend of authorities is that a delicate balance has to be struck between the ecological impact and development. 240. The other principle that has been ingrained is that if a project is beneficial for the larger public, inconvenien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he directions, it is necessary to revert to the circumstances, under which the writ petition was filed. The writ petitioner contending that already there has been excess mining in the state depleting the ecology and because of the same, the natural sand is in demand and the prices have escalated. The pleadings are available in para 3 of the writ affidavit. Under the above circumstances, as the import of sand is permitted, the writ petitioner imported sand from Malaysia. However, without authority, the same was not permitted to be moved and hence the writ petition was filed. This court has already held that the writ court has rightly held that the imported sand cannot be brought within the restrictions imposed in the existing laws. The court was able to see that the actions of the State were not only in accordance with law, but also not in the interest or welfare of the State and rather are in the nature of suiting individual commercial interests. More particularly, when alternate source is available, it could be used to preserve the ecology of the state. 44. The State of Tamil Nadu has a long history of illegal mining. So far umpteen number of cases have been filed before this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... river basins. There is destruction of Agriculture/Mangrove Eco System. Houses and buildings collapse due to erosion. The groundwater table goes down in all the river basins affecting agriculture severely. The sand mining permitted in private lands adjacent to river beds enables private owners to encroach the river bed illegally. Public roads are also seriously damaged. Direct irrigation to about 22000 acres of lands is affected in Vaigai and Cauvery basins. Drinking water has turned saline. Accidents occur due to heavy lorry traffic. The noise and dust thrown up by the lorries carrying quarried sand affect the people's health. 21. It takes millions of years for natural denudation of hard rock into sand. The current rate of extraction is far more than what nature is capable of replenishing. Alternative materials have to be found to replace river sand in construction activities. Excessive deepening of the river bed due to sand removal also accentuates soil erosion. Reduction in sediment supply from the rivers due to indiscriminate extraction will deplete the quantum of beach sand which in turn contributes to increased erosion along the coast line. 22. There is large scale il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hennai. It appears that there was very active public participation. I had the benefit of perusing the proceedings and I have incorporated the valuable materials I gathered from the said proceedings in this judgment. 29. SHANMUGAM, J. in W.P.Nos.10632/98 etc. by order dated 14-7-1999 directed the State Government to immediately take the following measures: "(1) To clearly define the river bank and fix permanent marks so as to enable the clear determination of the river bank on either side in reference to all the rivers in Tamil Nadu where quarrying sand is permitted or at least the portions over which quarrying is permitted. (2) To specify the normal sand bed level for the respectiverivers and after such demarcation, to mark the level with some permanent benchmark on the river bank for the purpose of quarrying. (3) To ban the removal or extraction of sand from such rivers where the present sand bed level is below the required level as fixed by the State. (4) To form a river management committee or an action committee by the District Collector or the Tahsildar with the cooperation of voluntary agencies so as to ensure that sand is being collected in strict compliance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quo ante. The Government shall pass suitable regulatory legislation in this regard. The action on the part of the Government after the receipt of the report should not brook any delay. It should act fast. In the meantime there should be a total ban on sand quarrying anywhere near motor or rail bridges - the distance between the bridges and the quarrying area should be not less than 500 metres. The distance between the riverbank and the mining area should be not less than 10 to 15 metres. The depth of the sand pits should not exceed 1 to 1-1/2metres. While granting licence the local public should be taken into confidence. They should be allowed to air their views and raise their objections. Wherever there has been violation of the terms of the grant, stringent action should be taken against the erring parties. Prosecution under Section 379 of the Indian Penal Code for theft and causing damage to public property should be launched. Severe penalties should be imposed. They should also be made to pay heavy compensation. There should be a special river protection force mobilised for patrolling and policing the river areas and apprehending the culprits indulging in illicit qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminate damage caused to the river by the local villagers. If this problem is not tackled urgently, the possibilities of damage to the bed and banks of Rivers and streams causing irreparable loss to environment cannot be avoided. It is also pointed out that this socio-economic problem is exploited by antisocial elements, who encourage the villagers to remove sand illegally for transportation to the city to make profit. It is suggested that the PWD may study in detail the banks of Kosasthalaiyar River to assess the damage caused to the bank and the basin so that a comprehensive picture may evolve to tackle this problem during the heavy monsoons. It was also pointed out to the committee by the local people that in addition to removal of sand from the river bed, people are also engaged in active quarrying of sand in patta land adjacent to the river banks and that this removal of sand adjacent to the river banks has caused fluctuation of water level in the neighbouring wells. Even though the rule prohibits removal of sand upto 50 meters from the boundary of the river, sand is removed in the safety zone area on either side of the banks at many places along the Kosasthalaiyar river ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the construction industry and thereby illegal quarrying is stopped. ..... 2.2.2 Gadilam, Pennaiyar and Malattar River beds in Cuddalore and Villupuram Districts In Gadilam river in Thirumanikuzhi village, a lease granted was stopped by the district authorities due to indiscriminate mining. The committee also felt that the action taken was justified. In the Pennaiyar riverbed, the quarry site at Melpattambakkam and Pulavanoor villages were visited. In this river course the centre of the river forms the district boundary for Cuddalore and Villupuram districts. While bringing the sand bearing areas for auction the authorities from the two districts do not bring the adjacent areas for auction simultaneously. Therefore a lessee having lease in one-district removes the sand in the adjacent area of the neighbouring district also. This sort of illicit removal can be avoided by the district authorities by bringing the adjacent areas for simultaneous leasing. It is also reported that the persons quoting for auction manipulate to stop the auction of the adjacent area so that they could have access to availability of sand in the adjacent district and to create a monopoly. The maxim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was noticed inside the riverbed for removal of sand from the lease hold area. The road is seen running to a distance of 3 to 5 km covering mostly non-lease hold area. Such formation of road in the riverbed not only encourages illicit mining but also has a negative impact on the flow, contour of the river and biota of the ecosystem. .... The committee also visited a sand quarry in the Cauvery riverbed near Nanjaithottakurichi village in Karur District. This quarry is being operated under the directions of the court. The examination of the area clearly reveals that the lessee removed sand beyond 2 to 3m depths as large water-stagnated pits created due to sand mining were noticed in the riverbed. Several hutments are also seen in the riverbed. The lessee has also indulged in illicit quarrying in the adjacent Namakkal district in the same riverbed. ... The committee visited the sand quarries in the Cauvery bed in Namakkal district. In Manapalli village where a lease has been sanctioned in the riverbed, the area leased out only reveal exposure of rocks and pebbles. The lessee has taken this area only with a high hope to remove sand from the same riverbed in the adjacent Karur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this riverbed. It is interesting to note that in Vaigai river in some areas sand is available for removal but no action has been taken because of objections from the public. Near Kirungakottai village in the same Vaigai riverbed the river has lost its face due to sand removal which has been permitted in the erstwhile Rule 39. The committee also visited the adjacent Sirugudi village wherein sand quarrying was seen in a patta land. Here the lessee has removed sand for more than 10-m depth. This large-scale removal of sand will definitely hamper the river flow since the patta land adjoins the Vaigai riverbed and thereby cause serious impairment to flow of water in the river. This in turn will cause serious damages to agriculture production downstream. Therefore, the committee feels that in patta land adjacent to the river no quarrying should be allowed within 250m distance of river boundary on either side. In Thoothukkudi District a sand quarry lease in Vaippar riverbed near Kilnattukkurichi village was visited. The district authorities have issued show cause notice to the lessee as he has indulged in quarrying outside the leasehold area. But the Hon'ble Court has stayed orders of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his has caused depletion of sand bed and consequential seepage of polluted water. The committee is of the opinion that in all places where TWAD board has such water wells, areas around 500 meters should be handed over to TWAD, so that they can protect the area. They should be given powers to take penal action against persons engaged in illicit removal of sand from their protected area. 47. Though, the report of the committee was part of judicial pronouncements, the illegal mining was not curbed. Therefore, several petitions alleging illegal mining has been raised before this court on various occasions. In the case of M.Periyasamy Vs The State and others in W.P No 11182/2010, the Division Bench of this Court, while considering a plea to ban mining in the Tamirabarani river bed, after analyzing the pitiable condition and the rampant illegal mining, banned the mining for five years by its order dated 02/12/2010 and directed for a constitution of a state level monitoring committee to inspect the river beds in the state and only upon the inspection and recommendation of the committee, future mining can be permitted. The usage of poclains or heavy machinery was also banned. 48. Similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mandatory requirements under the relevant rules. The quarrying operation on ground had carried out in a most unorganized manner and in violation of the conditions of SEIAA clearance and terms and conditions of permission granted by the competent authority. The inspection team has identified a uniform pattern of illegal mining in all the quarries excepting the virgin quarries. As a matter of routine, first the mining of sand is done beyond the boundary of permitted site by misusing the quarry license. Mining of sand has been done in a most haphazard manner without any respect to the extent and depth parameters. Excess and illegal mining had taken place in all quarries and operations as mentioned above and beyond the boundary and beyond the depth level causing severe environmental disturbance and degradation. The national mineral wealth was looted out without any hindrance in the illegal quarry near the Chinthalaivaadi and the inspection team has also found that not even a single complaint from the officials side about the illegal mining at Chinthalaivaadi which will shock the conscience of any reasonable man and the methodology adopted for illegal mining ingenious. • The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gle 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 Judgment of the Apex Court relied upon by the appellants, this Court is of the view that the judgment is not applicable to the present facts and circumstances for the following reasons: a. The directions issued are not in the nature of legislative directions but only in exercise of power under Article 226 of the Constitution of India because of the failure of the state to protect the river beds and curb illegal sand mining which has gone beyond resurrection. b. The directions are in the nature of the directing the authorities to comply with the statutory provisions and to safe guard the river beds. c. In the case decided by the Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or directions, not only in matters relating to fundamental rights but also to protect the constitutional rights enshrined in the constitution. In that sense, the power of High Courts under Article 226 of the Constitution have been held by the Apex Court in various judgments to be superior than that of the Apex Court under Article 32 of the Constitution. Right to life and liberty is the basic fundamental right guaranteed by the constitution under Article 21. The scope of the Article has been widely interpreted by the Supreme Court in the following cases to ensure that all plausible conditions are prevalent in the society for the man kind to survive, which run thus:- (i) Kharak Singh v. State of UP (AIR 1963 SC 1295) : "By the term "life" as here used something more is meant than mere animal existence". (ii) Shantistar Builders v. N.K.Toitame (1990) 1 SCC 520: "9. Basic needs of man have traditionally been accepted to be three-food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in." (iii) Chamel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects in his report as follows: "Effects of Physical Impact These impacts may cause: 1. the undercutting and collapse of river banks, 2. the loss of adjacent land and/or structures, 3. upstream erosion as a result of an increase in channel slope and changes in flow velocity, and 4. down erosion due to increased carrying capacity of the stream, downstream changes in patterns of deposition, and changes in channel bed and habitat type. Impact on Ground Water Water quality • Sand mining and dredging activities, • poorly planned stockpiling and uncontrolled dumping of overburden, • and chemical / fuel spills affects the adjoining groundwater system will cause • reduced water quality for downstream users, • increased cost for downstream water treatment plants • and poisoning of aquatic life. Ground Water • Apart from threatening bridges, sand mining transforms the riverbeds into large and deep pits; as a result, the groundwater table drops leaving the drinking water wells on the embankments on these rivers dry. • Bed degradation from in stream mining lowers the elevation of stream flow and the floodplain water ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by dredging activities includes generation of noise, which can interrupt nesting / breeding activities. • Other effects include destruction of habitat for foraging and nesting, increased exposure to re-suspended toxicants, human disturbance from mining operations and increased predator use of recently dredged areas. Riparian habitat, flora and fauna • In stream mining can have other costly effects beyond the immediate mine sites. • Many hectares of fertile land are lost, as well as valuable timber resources and wildlife habitats in the riparian areas. • Degraded stream habitats result in lost of fisheries productivity, biodiversity and recreational potential. • Severely degraded channels may lower land and aesthetic values. • All species require specific habitat conditions to ensure longterm survival. • Factors that increase or decrease sediment supply often destabilize bed and banks and result in dramatic channel readjustments. • Mining-induced changes in sediment supply and channel form disrupt channel and habitat development processes. Biological environment • Introduction of abnormal volumes of organic mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limit to the capacity of the environment to service...growth, both in providing raw materials and in assimilating by-product wastes due to consumption. The largesse of technology can only postpone or disguise the inevitable." Professor Barbara Ward has written of this ecological imperative in particularly vivid language: We can forget moral imperatives. But today the morals of respect and care and modesty come to us in a form we cannot evade. We cannot cheat on DNA. We cannot get round photosynthesis. We cannot say I am not going to give a damn about phytoplankton. All these tiny mechanisms provide the preconditions of our planetary life. To say we do not care is to say in the most literal sense that "we choose death." There is a commonly-recognized link between laws and social values, but to ecologists a balance between laws and values is not alone sufficient to ensure a stable relationship between humans and their environment. Laws and values must also contend with the constraints imposed by the outside environment. Unfortunately, current legal doctrine rarely accounts for such constraints, and thus environmental stability is threatened. Historically, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty rights in rivers, the sea, and the seashore. That history has been given considerable attention in the legal literature, need not be repeated in detail here. But two points should be emphasized, First, certain interests, such as navigation and fishing, were sought to be preserved for the benefit of the public; accordingly, property used for the those purposes was distinguished from general public property which the sovereign could routinely grant to private owners. Second, while it was understood that in certain common properties - such as the seashore, highways, and running water - "perpetual use was dedicated to the public," It has never been clear whether the public had an enforceable right to prevent infringement of those interests. Although the state apparently did protect public uses, no evidence is available that public rights could be legally asserted against a recalcitrant government. 17.The Public Trust Doctrine primarily rests on the principle that certain resources like air sea, waters and the forests have such a great importance to the people as a whole that it would be wholly*** onjustilled to make them a subject of private ownership. The said resou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any governmental conduct which is calculated either to relocate that resource to more restricted uses or to subject public uses to the self- interest of private parties". 19.In Gould vs. Greylock Reservation Commission 350 Mass 410 (1966), the Supreme Judicial Court of Massachusetts took the first major step in developing the doctrine applicable to changes in the use of lands dedicated to the public interest. In 1888 a group of citizens interested in preserving Mount Greylock as a unspoiled natural forest, promoted the creation of an association for the purpose of laying out a public park on it. The State Ultimately acquired about 9000 acres, and the legislature enacted a statute crating the Greylock Reservation Commission. In the year 1953, the legislature enacted a statute creating an Authority to construct and operate on Mount Greylock an Aerial Tramway and certain other facilities and it authorised the commission to lease to the Authority any portion of the Mount Greylock Reservation. Before the project commenced, five citizens brought an action against both they Greylock Reservation Commission and the licency Authority. The plaintiffs brought the sult us beneficiaries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the people for recreational purposes." 20.In Robbins vs. Department of Public Works 244 N.E. 2d 577, the Supreme Judicial Court of Massachusetts restrained the Public Works Department from acquiring Fowl Meadows, "Wet lands of considerable natural beauty ... often used for nature study and recreation" for highway use. 21.Professor Sax in the article (Michigan Law Review) refers to Prieweys. WisconSin State Land and Improvement Company 93 Wis 534 (1896), Crawford County Lever and Drainage district Nos. 1, 182, Wis 404, city of Milwaukee vs. State 193 Wis 423, State vs. Public Service Commission 275 Wis 112 and opines that the Supreme Court of Wisconsin has probably made a more conscientious effort to rise above rhetoric and la work out a reasonable meaning for the public trust doctrine than have the courts or any other State". 22.Professor Sax stated the scope of the public trust doctrine in the following words:- If any of the analysis in this Article makes sense, it is clear that the judicial techniques developed in public trust cases need not be limited either to these few conventional interests or to questions of disposition of public properties. Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public trust, under which the sovereign owns "all of its navigable waterways and the lands lying beneath them as trustee of a public trust for the benefit of the people." 24.The Court explained the purpose of the public trust as under: "The objective of the public trust has evolved in tandem with the changing public perception of the values and uses of waterways. As we observed in Marks v. Whitney, supra, 6 Cal.3d 251, "[public trust easements [were] traditionally defined in terms of navigation, commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes. We went on, however, to hold that the traditional triad of uses-navigation, commerce and fishing-did not limit the public interest in the trust res. In language of special importance to the present setting, we stated that "[t]he public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs. In administering the trust the state is not burdened with an outmo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessity the state may have to approve appropriations despite foreseeanie harm to public trust uses. In so doing, however, the state must bear in mind its duty as trustee to consider the effect of the taking on the public trust (see United Plainsmen v. N.D. State Water Cons. Comm'n, 247 N.W. 2d 457, 462-463 (N.D. 1976), and to preserve, so far as consistent with the public interest, the uses protected by the trust." 25.The Court finally came to the conclusion that the plaintiffs could rely on the public trust doctrine in seeking reconsideration of the allocation of the waters of the Mono basin. 26.It is no doubt correct that the public trust doctrine under the English Common Law extended only to certain traditional uses such as navigation, commerce and fishing. But the American Courts in recent cases have expanded the concept of the public trust doctrine. The observations of the Supreme Court of California in Mono Lake case clearly show the judicial concern in protecting all ecologically important land,s for example fresh water, wetlands or riparian forests. The observation of the Court in Mono Lake case to the effect that the protection of ecological values is among t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto private ownership or for commercial use. The esthetic use and the prestime glory of the natural resources, the environment and the eco-systems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public goods and in public interest to encroach upon the said resources. 29.Coming to the facts of the present case, large area of the bank of river Beas which is part of protected forest has been given on a lease purely for commercial purposes to the Motels. We have no hesitation in holding that the Himachal Pradesh Government committed patent breach of public trust by leasing the ecologically fragile land to the Motel management. Both the lease - transactions are in patent breach of the trust held by the State Government. The second lease granted in the year 1994 was virtually of the land which is a part of river-bed. Even the board in its report has recommended deleasing of the said area. 30.This Court in Vellore Citizens Welfare Forum v. Union of India & Ors. JT 1996(7) S.C.375 explained the "Precautionary Principle" and "Polluters Pays principle" as under:- Some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cost of restoring the environmental of the damaged environment is part of the process of "Sustainable Development" and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of the reversing the damaged ecology. The precautionary principle and the polluter pays principle have been accepted as part of the law of the land." (ii) M.C.Mehta v. Union of India (UOI) and others (AIR 2004 SC 4016): "45.The natural sources of air, water and soil cannot be utilized if the utilization results in irreversible damage to environments. There has been accelerated degradation of environment primarily on account of lack of effective enforcement of environmental laws and non-compliance of the statutory norms. This Court has repeatedly said that the right to live is a fundamental right under Article 21 of the Constitution and it includes the right to of enjoyment of pollution-free water and air for full enjoyment of life. (See Subhash Kumar v. State of Bihar [AIR 1991 SC 420]. 46.Further, by 42nd Constitutional Amendment, Article 48-A was inserted in the Constitution in Part IV stipulating that the State shall endeavour to protect and improve the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se to township which has tendency to degrade environment and are likely to effect air, water and soil and impair the quality of life of inhabitants of the area, there would be greater responsibility on the part of the entrepreneur. The fullest disclosures including the potential for increased burdens on the environment consequent upon possible increase in the quantum and degree of pollution, has to be made at the outset so that public and all those concerned including authorities may decide whether the permission can at all be granted for carrying on mining activity. The regulatory authorities have to act with utmost care in ensuring compliance of safeguards, norms and standards to be observed by such entrepreneurs. When questioned, the regulatory authorities have to show that the said authorities acted in the manner enjoined upon them. Where the regulatory authorities, either connive or act negligently by not taking prompt action to prevent, avoid or control the damage to environment, natural resources and peoples' life, health and property, the principles of accountability for restoration and compensation have to be applied. 50. The grant of mining lease is governed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activity on forest, land surface and environment including air and water pollution; details of the scheme of restoration of the area by afforestation, land reclamation, use of pollution control devices and such other measures as may be directed by the Central Government or the State Government from time to time. A tentative scheme of mining and annual programme and plan for excavation from year to year for five years is also required to be incorporated in the mining plan. Rule 22(5) was inserted in the Rules by notification dated 27th September, 1994 to which certain amendments were made in terms of notification dated 17th January, 2000 also inserting by same notification Rule 22(4A). Sub-rule(4) to Rule 22 ad been earlier inserted by notification dated 27th September, 1994. 52.The grant of permission for mining and approving mining plan and the scheme by the Ministry of Mines, Government of India by itself does not mean that mining operation can commence. It cannot be accepted that by approving Mining Plan and Scheme by Ministry of Mines, Central Government is deemed to have approved mining and it can commence forthwith on such approval. Section 13 of the MMRD Act and the Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e undertaken which work shall be completed before the conclusion of mining operations and the abandonment of mine. Air pollution due to fines, dust and smoke or gaseous emissions during mining operations and related activities shall be controlled and kept within 'permissible limits' specified under various environmental laws of the country including the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 by the holder of mining lease. Further, noise arising out of such operations shall be abated or controlled by the lessee at the source so as to keep it within the permissible limit. The mining operations shall be carried out in such a manner so as to cause least damage to the flora of the area and nearby areas. Every holder of mining lease shall take immediate measures for planting in the same area or any other area as selected by the authorized officer and not less than twice the number of trees destroyed by reason of any mining operation and look after them during the subsistence of the licence/lease and restore, to the extent possible, other flora destroyed by mining operations. 54.The aforesaid measures are not required to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources." "74. The forest policy has a statutory flavour. The nonfulfillment of aforesaid principle aim would be violative of Articles 14 and 21 of the Constitution. The basic objectives of the Forest Policy, 1988 are: "2.1 The basic objectives that should govern the National Forest Policy are the following: -- Maintenance of environmental stability through preservation and, where necessary, restoration of the ecological balance that has been adversely disturbed by serious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, deforestation, loss of biodiversity and environmental pollution have become subjects of serious global concern. The overall impact of these phenomena is likely to result in depletion of ozone layer, change of climate, rise in sealevel loss of natural resources, reduction in their productivity ultimately leading to an ecological crisis affecting livelihood options for development and over all deterioration in quality of life." "88.The national development agenda must recognize the necessity of protecting the long-term ecological security. The problem area is the growing population, high degree of mechanism and steep rise in energy use which has led to activities that directly or indirectly affect the sustainability of the environment." "89.It is recognized that the sustainable use of bio-diversity is fundamental to ecological sustainable. The loss of bio-diversity stems from destruction of the habitat, extension of agriculture, filling up of wet lands, conversion of rich bio-diversity sites for human settlement and industrial development, destruction of coastal areas and uncontrolled commercial exploitation. It is thus evident that the preservation of eco- systems, bio-diver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titute part of the natural environment necessary for healthy life of persons living in the State of Goa. The right to life under Article 21 of the Constitution is a guarantee against the State and for enforcing this fundamental right of persons the State, which alone has a right to grant mining leases of the mines located inside the State, can be directed by the Court by an appropriate writ or direction not to grant mining leases or not to allow mining that will be violative under Article 21 of the Constitution. In Re: Construction of Park at NOIDA near Okhla Bird Sanctuary [(2011) 1 SCC 744] a three-Judge Bench (Forest Bench) of this Court has observed: "…… Environment is one of the facets of the right to life guaranteed under Article 21 of the Constitution. Environment is, therefore, a matter directly under the Constitution and if the Court perceives any project or activity as harmful or injurious to the environment it would feel obliged to step in. …." Thus, the submissions of learned counsel for the lessees that until a notification is issued under the Environment (Protection) Act, 1986 and the Rules made thereunder prohibiting mining activities in an are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry and face the wrath of Article 14 of the Constitution. Hence, rather than prescribing or proscribing a method, we believe, a judicial scrutiny of methods of disposal of natural resources should depend on the facts and circumstances of each case, in consonance with the principles which we have culled out above. Failing which, the Court, in exercise of power of judicial review, shall term the executive action as arbitrary, unfair, unreasonable and capricious due to its antimony with Article 14 of the Constitution." (v) State of NCT of Delhi v. Sanjay (2014 10 SCC 101): "55. There cannot be any two opinions that natural resources are the assets of the nation and its citizens. It is the obligation of all concerned, including the Central and the State Governments, to conserve and not waste such valuable resources. Article 48-A of the Constitution requires that the State shall endeavour to protect and improve the environment and safeguard the forests and wild life of the country. Similarly, Article 51-A enjoins a duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for all the living creatures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a given case should be permitted or not, barring "No Go" areas (whose identification would again depend on undertaking of due diligence exercise). In such cases, the Margin of Appreciation Doctrine would apply. 20. Making these choices necessitates decisions, not only about how risks should be regulated, how much protection is enough, and whether ends served by environmental protection could be pursued more effectively by diverting resources to other uses. Since the nature and degree of environmental risk posed by different activities varies, the implementation of environmental rights and duties require proper decision making based on informed reasons about the ends which may ultimately be pursued, as much as about the means for attaining them. Setting the standards of environmental protection involves mediating conflicting visions of what is of value in human life. 30. Time has come for us to apply the constitutional "doctrine of proportionality" to the matters concerning environment as a part of the process of judicial review in contradistinction to merit review. It cannot be gainsaid that utilization of the environment and its natural resources has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the tragedy is that despite all warnings, the mines continued their operations without Environment Management Plan. That, right from 18.3.2004, when this Court pronounced the judgment in M.C. Mehta case (supra), till date, number of Reports came to be submitted as the Court tried to balance mining activity on one hand with protection of environment on the other hand. In fact, in para 57 of the said judgment, this Court stated that so long as it is possible to undertake mining operations on the sustainable development principle, the Court should not impose complete ban on mining as it generates revenue for the State. However, vide para 89, a warning was given that if despite imposition of stringent conditions, the degradation of environment continuous and reaches a stage of no-return, then this Court may have to consider at a later date the closure of mining activity. This prediction has come true. The consequence is that the State now has decided to close the mining activity. Para 89 is also important from another angle. The judgment in M.C. Mehta case (supra) has left it to this Court to consider at a later date the closure of mining activity. Even in para 96(6), this Court obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in order to operate mining inside the forest area, the lessee is required to possess clearances under Mines and Minerals (Development and Regulation) Act, 1957 ("1957 Act"); under Section 2(ii) of Forest (Conservation) Act, 1980; and to Environment Clearance under EIA Notification which applies to mining of major minerals and to the areas exceeding 5 hectares. In case of mining projects, a Site Clearance is also required which is issued either by the Central Government or the State Government depending upon the area of land let out on lease. Further, Section 2(ii)of Forest (Conservation) Act, 1980 prohibits grant or renewal of mining lease without prior approval of Central Government. 20. At this stage, we may also note that under Section 13(2) (qq) of 1957 Act, Rules have been framed for rehabilitation of flora and other vegetation destroyed by reason of any prospecting or mining operations. Under Section 18 of the 1957 Act, Rules have been framed for conservation and systematic development of minerals in India and for the protection of environment by preventing or controlling pollution caused by prospecting or mining operations which also form part of Mineral Concessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 26.1.1950 did not contain any express provision for protection of environment and ecology, the people continued to treat it as their social duty to respect the nature, natural resources and protect environment and ecology. After 26 years, Article 48-A was inserted in Part IV of the Constitution and the State was burdened with the responsibility of making an endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. By the same amendment, Fundamental Duties of the citizens were enumerated in the form of Article 51-A (Part-IV A). These include the duty to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures [Article 51-A(g)]. 5. The Courts in different jurisdictions have, time and again, invoked the public trust doctrine for giving judicial protection to environment, ecology and natural resources. This Court also recognized the importance of the public trust doctrine and applied the same in several cases for protecting natural resources which have been treated as public properties and are held by the Government as trustee of the people. The judgment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vironment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources." 55. From the above judgments, it is clear 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 the doctrine of public trust has been discussed elucidated by the Apex Court in M.C Mehta's case (supra). 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 ecolo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
