Pirithi Panchayat vs Commissioner/Director And Ors

The application which was originally filed as writ petition W.P.No.17878 of 2016 in the High Court of Madras challenges G.O.(3D) No.11, Industries (MMB.2) Department, dated 23.1.2016.

Under the impugned G.O, the Government of Tamil Nadu has sanctioned quarry lease in favour of the 3rd respondent - M.P Granite to quarry multi colour granite which is a minor mineral in S.F.Nos.41/2A (0.23.0 ha), 41/2B (0.34.5 ha), 41/2C (0.49.5 ha), 41/2D (0.22.0 ha), 41/2E (0.51.0 ha), 106/1-p (0.17.0 ha) and 106/3-p (0.14.0 ha) to an extent of 2.11.0 ha of patta land in Elayampalayam Village, Tiruchengode Taluk, Namakkal District for a period of twenty years. The impugned G.O refers to an application made by the 3rd respondent - M/s. M.P. Granite dated 16.7.2015 who applied for granite quarry lease for a period of 20 years under Rule 19A of Tamil Nadu Minor Mineral Concession Rules, 1959 (Rules). The District Collector, Namakkal District as well as the Commissioner, Mines and Geology, the 2nd and 1st respondents respectively, have recommended and forwarded the application to the government. The government, on considering the said recommendation, has requested the project proponent to furnish the approved mining plan, as per sub-rule 13 of Rule 19A of the Rules and also to produce Environmental Clearance (EC) from the State Level Environment Impact Assessment Authority (SEIAA). The Commissioner of Geology and Mining has approved the mining plan as per his communication dated 13.11.2015 in accordance with the Rules, subject to the condition that the project proponent shall obtain EC as per the orders of the Supreme Court in the case of DEEPAK KUMAR & OTHERS VS STATE OF HARYANA & OTHERS (2012) 4 SCC 629 followed by the Office Memorandum of MoEF & CC dated 18.5.2015. The SEIAA - 5th respondent has granted EC for the said project in favour of the project proponent on 5.1.2016.

After considering the approved mining plan of the Commissioner of Geology and Mining and the EC issued by SEIAA, the government has granted lease to the project proponent in respect of the above said land situated at Elayampalayam Village, Tiruchengode Taluk, Namakkal District for a period of 20 years, subject to the conditions contained in the G.O, apart from following the special conditions imposed by SEIAA in the EC dated 5.1.2016. The conditions contained in the impugned G.O also stipulate a safety distance of 7.5 m to be left out to the adjoining patta lands and not to cause any hindrance while quarrying, apart from leaving a safety distance of 50 m to the low tension electric power line passing at a distance of 25 m parallel to the southern boundary of the applied area. The conditions also contemplate a duty on the part of the project proponent to fence the leased area with barbed wire before execution of the lease deed by erecting pillar posts firmly grounded with concrete foundation of height not less than 2 m with a condition that the distance between two pillars shall not be more than 3 m. Apart from that, the conditions stipulate that the lessee shall strictly adhere to the statutory and safety requirements and the waste materials generated during quarrying operation shall be dumped only in the area granted under lease and the quarrying shall be done strictly as per the approved mining plan etc.

The grievance of the applicant - Panchayat viz., Pirithi Panchayat, represented by its President, is that there are residential houses situated within the prohibited distance of 300 m from the land for which quarry lease was granted and within 70 m of the land the government has issued patta to the Harijan people and the Village Panchayat has constructed overhead tank for storing 30,000 litres of water. That apart, there are temples situated adjacent to the land and according to the applicant people made representation to the District Collector, Namakkal not to grant quarry lease and on the direction of the 2nd respondent - District Collector, Namakkal, the Revenue Divisional Officer, Thiruchengode, the Assistant Director of Mines, Namakkal made personal inspection and submitted a report. However, the fact of existence of residential houses and electric lines have been suppressed, since the 3rd respondent is an influential person.

The 4th respondent has filed reply dated 9.8.2016 on his behalf and on behalf of respondents 1 and 2. While narrating the fact of recommendation of the District Collector and Commissioner of Geology and Mining and granting of EC by SEIAA, it has been stated that the government has issued the impugned G.O granting multi-colour granite quarry lease to the 3rd respondent, followed by 'consent to establish' granted by the Tamil Nadu Pollution Control Board (Board) dated 8.2.2016.

It is stated that the applicant, as the President of Pirithi Village Panchayat has made a representation on 4.2.2016 stating that 30 house site pattas were issued to Harijan people which are situated within 70 m from the lease applied area and that there is an overhead tank in existence within 70 m with water storage capacity of 30,000 litres and the water will be affected by the quarry operations. It was in those circumstances, the District Collector, Namakkal directed the Revenue Divisional Officer, Tiruchengode and the Assistant Director of Mines, Namakkal to inspect the area and submit a report. There was a joint inspection conducted on 12.2.2016 in the presence of the applicant, village people and submitted a report stating that there is an overhead water storage tank and Adi-Dravidar habitation is located at a distance of 170 m in S.F.No.59/2 of Kumarapalayam Village on the western side of the applied area and there are no permanent structures such as village roads, tanks, temples, monuments, graveyards etc situated within a distance of 50 m from the applied area and a low tension electric line is located at a distance of 25 m from the Southern boundary. Apart from the above, there are no habitations located within a radius of 300 m and in respect of the low tension electric line, a special condition has been imposed in the government order stating that a safety distance of 50 m should be left out and no quarrying operation should be carried on within the safety distance.

This reply also refers to G.O.No.166 Industries (MMC-1) Department dated 16.6.1994 by which rule 36(1) was introduced to the Rules stating that the quarry permit holder or lessee shall not work or carry on any mining operation within a distance of 50 m from any railway line except with the previous permission of the railway administration or under or beneath any ropeway or any ropeway trestle or station except in accordance with the written permission of the authority.

Further, as per the amendment issued by G.O.Ms.No.88 Industries (MMC.1) Department dated 1810.2002, sub-rule 1-A has been inserted to rule 36 stating that no lease shall be granted for quarrying stone within 300 m from any inhabited site. The term 'stone' is explained to mean rough stones, including khandas, boulders, size-reduced (broken or crushed) materials, including metal jelly, ballasts, mill stones, hand chakkais and building and road construction stones other than red, pink, grey, green, white or other coloured or multi coloured granites or any other rocks suitable for use as ornamental and decorative stones.

Therefore, according to the said respondents, apart from the fact that the multi colour granite, the subject matter of lease in this case, are not defined as 'quarrying stone' , even otherwise, as per the rules, a safety distance of 50 m has been provided. It is also stated that the applicant Mr. P. Manickam was called for a personal hearing on 12.2.2016 and he has submitted a written statement before the District Collector and on scrutinising the written statement it was found that the distance of surrounding structures in the earlier representation dated 4.2.2016 was entirely different from the distance mentioned in the written statement dated 12.2.2016 and after examining the representation in the light of the inspection report, the District Collector has rejected the plea of the applicant as baseless and informed the same to the applicant on 19.2.2016 stating that if the applicant is aggrieved, he can file appeal before the Appellate Authority viz., Commissioner of Geology and Mining, Chennai and consequently the District Collector has executed the lease deed in favour of the 3rd respondent.

It is stated that the applicant has also filed an appeal before the Commissioner of Geology and Mining on 23.1.2016 and while the appeal was pending, he filed a writ petition W.P.No.9833 of 2016 with the same prayer when there is an alternative remedy existing for filing an appeal. The District Collector has filed counter in the said writ petition. In the mean time, the applicant has filed W.P.No.17878 of 2016 with the prayer as elicited above and the Hon'ble High Court has transferred the writ petition to this Tribunal which was numbered as Application No.236 of 2016. It is reiterated that the overhead water storage tank and Adi-Draidar habitation is located 170 m away from the quarry site and there are no permanent structures such as village road, temple etc., within a radial distance of 50 m. Under the Rules, the lease is prohibited for quarrying stone within 300 m from inhabited site and the term 'stone' does not include coloured or multi-coloured granite which is the subject matter of the present application.

The SEIAA after making impact study has granted EC and the Board has granted 'consent to operate' the multi-coloured granite quarry. The High Court in W.M.P.No.15573 of 2016 in W.P.No.17878 of 2016 in the order dated 20.6.2016 has directed that the impugned GO shall remain stayed until further orders and if ultimately the impugned order is upheld, the period during which the order of interim stay was in operation, shall stand excluded, while computing lease period.

The 3rd respondent/project proponent in its reply dated 9.5.2016 has raised the issue of maintainability stating that when the applicant has filed the statutory appeal against the order of the District Collector dated 19.2.2016 before the Appellate Authority viz., Commissioner of Geology and Mining, Chennai on 2.2.2016 and W.P.No.9833 of 2016 proceeding with the same order of the District Collector without exhausting alternative remedy of appeal and both are pending, the present application filed as writ petition, is not maintainable.

While reiterating the representation of the applicant to the District Collector dated 4.3.2016 stating about the site allotted to the Harijan people and also the water tank to the capacity of 30,000 litres and that on the direction of the District Collector, the Revenue Divisional Officer and the Assistant Director of Mines have conducted the joint inspection in the presence of the applicant on 12.2.2016 and submitted a report stating that the habitation is at a distance of 170 m away from Survey No.59/2 of Kumarapalayam Village on the western side it is stated that the joint inspection report has also referred to the provisions of 36(1) apart from sub rule 36(1-A)(a) of the Rules which states that stone quarry lease shall not be granted within 300 m from the inhabitation site and that the quarrying stone excludes multi-coloured granite which is the subject matter of the present application. It is stated by the 3rd respondent that under rule 36(1) of the Rules stringent conditions have been stipulated for the grant of mining lease in patta land It is also stated that against the order of the District Collector - 2nd respondent granting lease, there is an appeal provision available to the Commissioner of Geology and Mines and the second appeal to the State Government under Rule 36(C) of the Rules. It is stated that the application of the 3rd respondent dated 4.2.2016 was forwarded to the official respondents.

The Revenue Divisional Officer and the Assistant Director of Mines have inspected the site to find out whether the site in question is qualified as mining lease. It was recommended by the 1st and 2nd respondents to the State Government after obtaining mining plan from the 3rd respondent and on production of EC obtained from SEIAA and the recommendation was on 13.11.2015 to the State Government and after the EC was obtained from SEIAA on 5.1.2016, the same was also forwarded and after consideration of those aspects the impugned GO dated 23.1.2016 came to be issued by the government with various conditions.

Pursuant to the issue of mining lease and after execution of the lease deed, the 3rd respondent has made preliminary work and that was obstructed by the applicant and his henchmen and that was complained by the 3rd respondent to the 2nd respondent - District Collector and there was another inspection made and the allegations made by the applicant were proved to be false and rejected on 3.2.2016 and the same is pending with the 1st respondent, by way of appeal. It is also denied that the 3rd respondent is connected with PRP Granites. The 3rd respondent is a native of Krishnagiri. The mining operation is to be carried on based on scientific procedure and in a systematic manner.

The 5th respondent SEIAA has filed a memo dated 30.1.2017 wherein it is stated that in respect of M.P. Granite to quarry multi coloured granite at S.F.No.41/2A, 2B, 2C, 2D, 2E, 2D, 2E,106/1(P), 106/3(P) in Elampalayam Village, Tiruchencode Taluk, Namakkal District, EC was granted by SEIAA after obtaining approved mining plan and the precise area communication approved by the District Collector.

It is the contention of Mr. C. Prakasam, learned counsel appearing for the applicant that what is challenged is the G.O granting mining lease in favour of the 3rd respondent and pendency of any appeal against the order of the District Collector or writ petition is not a bar for the present relief claimed. It is his submission that when the granite quarry lease is granted in favour of the 3rd respondent and the same is situated near the human habitation, as a responsible President of the Village, the applicant is duty bound to protect the people of the Village and therefore he has locus standi to file the writ petition which was subsequently transferred to this Tribunal. It is his further submission that what has happened for granite quarries in Madurai should not be continued and that will result in environmental degradation and therefore as a matter of precautionary principle, the writ petition was filed before the High Court and it was transferred to this Tribunal which is a green court and this Tribunal must take note of the damage going to be caused and protect the environment and ecology of the area.

Per contra, it is the contention of Mr. Thankasivan, learned counsel appearing for the project proponent that the writ petition as such was not maintainable before the High Court, since the appeal against the order of the District Collector rejecting the representation of the applicant is already pending and in fact in respect of the same relief the applicant has filed W.P.No.9833 of 2016 and before any decision is taken in those cases, the filing of the present writ petition is an abuse of process of law. According to the learned counsel, in any event, when the matter has been transferred to this Tribunal and the impugned G.O itself has been issued after the statutory authority under the EIA Notification, 2006 viz., SEIAA has issued EC for the proposed project, in the absence of any challenge to the EC, the present application is to be rejected at the threshold. He would further submit that even on merits of the matter, the multi-colour granite stones do not come under the term 'stone quarry' and therefore the distance criteria is not applicable. Even otherwise, the Rules contemplate 300 m and the proposed quarry site is situated beyond 300 m from the human habitation and there is no human habitation within 300 m distance. Therefore, the application should be rejected.

The learned counsel appearing for MoEF & CC has also reiterated the stand taken in the memo and contended that the SEIAA, being a statutory authority, has granted EC in accordance with the EIA Notification, 2006 after the study made and approved mining plan and therefore the mining lease granted, based on the EC, cannot be assailed independently.

We have heard the learned counsel appearing for the parties, perused the pleadings and documents filed and given our anxious thought to the issue involved in this case. The only issue that is to be decided in this case is as to whether the impugned G.O.(3D) No.11, Industries (MMB- 2) Department, dated 23.1.2016 granting mining lease for a period of 20 years over an extent of 2.11.0 ha of patta land for multi-colour granite in favour of the 3rd respondent by the Government of Tamil Nadu, is valid or not.

At the outset, the facts are almost not disputed. It is also not in dispute that before the impugned G.O was passed, the authority empowered under the EIA Notification, 2006 viz., SEIAA, the 5th respondent has issued EC for the project of multi-colour granite quarry in an extent of 2.11.0 ha of patta land in Elayampalayam Village, Tiruchengode Taluk, Namakkal District in favour of the 3rd respondent - project proponent. It is admitted that the EC granted by SEIAA in favour of the 3rd respondent - project proponent dated 5.1.2016 is not under challenge in any proceeding, particularly before this Tribunal which is the authority to decide about the validity of such EC as per Section 16(h) of the National Green Tribunal Act, 2010. In the background of the above said facts of non challenge of EC granted by SEIAA, we have to decide the legality of the prayer made by the applicant challenging the impugned G.O.(3D) No.11, Industries (MMB-2) Department, dated 23.1.2016 granting quarry lease for multi-colour granite in S.F.No.41/2A, 2B, 2C, 2D, 2E, 2D, 2E,106/1(P), 106/3(P) in a total extent of 2.11.0 ha in Elampalayam Village, Tiruchencode Taluk, Namakkal District in accordance with the powers conferred under the State Government under Rule 19-A of the Rules. A reading of the above G.O makes it abundantly clear that the government has exercised the power of granting multi-colour granite lease in favour of the 3rd respondent based on an approved mining plan issued by the Commissioner of Geology and Mining by exercising its statutory powers as per sub-rule 30 of Rule 19-A of the Rules and the EC granted by SEIAA as per the EIA Notification, 2006. Therefore the grant of multi-colour granite lease in favour of the 3rd respondent, apart from being statutory, is not independent but dependent upon and based on the EC granted by the SEIAA.

As an environmental court, this Tribunal is concerned more about the EC, since it is a permission given by SEIAA by following the environmental norms and procedures prescribed under the EIA Notification, 2006. Precisely, the SEIAA issued the EC after taking note of the environmental impact and making study about the ecology of the area and therefore it is a scientific process moulded with legal effects. Such EC granted by SEIAA or MoEF & CC, as the case may be, are liable to be challenged before the National Green Tribunal under Section 16(h) of the NGT Act, 2010. In such event, the NGT takes into consideration the environmental issues raised in the grant of such EC and decides as to whether the grant of EC is benign and is in accordance with the provisions of EIA Notification, 2006 which itself was framed by the Central Government based on the powers conferred under the Environment (Protection) Act, 1986.

Therefore, in the absence of any challenge to the statutory EC granted by SEIAA and as the EC remains valid, the reliance placed by the State Government on the said EC for the grant of quarry lease and passing of order is more of consequential and the State Government while passing such order under Section 19-A of the Rules, takes into consideration the legality of granting of such lease while environmental issues have already been finalised in the EC. Therefore, in our considered view and as an Environmental Court, rendering environmental justice, in the absence of any challenge to the EC in the manner know to law, the impugned G.O cannot be assailed, particularly on the environmental grounds.

Even otherwise, on the factual matrix of this case, the joint inspection of the Revenue Divisional Officer and the Assistant Director of Mines, as directed by the District Collector has clearly found that the Harijan Colony is located at a distance of 70 m and the overhead water storage tank is also at a radial distance of 70 m from the leased area which is beyond 50 m and no other approved housing plots or houses are noticed within 300 mt, therefore permissible in law. But there is one other important legal issue under the Rules viz., that the rule, as amended on 18.10.2002 has introduced Rule 36(1-A) which reads as follows:

"(a). No lease shall be granted for quarrying stone within 300 meters (three hundred meters) from any inhabited site."

The term 'stone' is defined in sub-rule (ii-a) which is as follows:

"(ii-a) 'stone' shall mean rough stones including khandas, boulders, size-reduced (broken or crushed) materials including metal jelly, ballasts, mill stones, hand chakais and building and road construction stones other than black , red, pink, grey, green, white or other coloured or multi coloured granites or any other rocks suitable for use as ornamental and decorative stones"

On a reading of the above said provision of the Rules, it is clear that 300 m distance is applicable for lease relating to quarrying of stones whereas while defining the term 'stone' multi-coloured granite has been excluded along with other coloured and ornamental and decorative stones. Therefore, by considering the construction of the provisions of the rule, multi coloured stone, which is the subject matter of dispute in this case is not covered under the stone quarry and therefore the distance criteria may not be strictly applicable for the multi coloured stone quarry.

The EC granted by the SEIAA dated 5.1.2016 has also clearly stated that the proposed activity is multi-colour granite in the mining area of 2.11.0 ha with an approved quantum of 13,524 cu.m of multi-colour granite and depth of 13 m covered under 'B2' category. The EC granted by SEIAA has also taken into consideration the mining plan approval granted by the Commissioner of Geology, Chennai dated 13.11.2015 for the said project. The source of water requirement, power requirement have also been taken into consideration. The EC also refers to the appraisal by State Expert Appraisal Committee (SEAC) dated 29.12.2015, 30.12.2015 and 31.12.2015 and valid for a maximum period of five years with conditions to be complied with before commencing mining operations and general conditions to be followed. The EC granted is as per the judgment of the Hon'ble Supreme Court in DEEPAK KUMAR's case.

There is another issue viz., that admittedly against the proceedings of the District Collector dated 19.2.2016 which is after the impugned G.O challenged in this proceedings, the applicant has filed an appeal before the Commissioner of Geology and Mining which is pending. Further, against the same proceedings of the District Collector it is stated that the applicant has approached the Hon'ble High Court of Madras by filing W.P.No.9833 of 2016 and both, the appeal as well as the writ petition, are pending. Having approached the appropriate Appellate Authority and without waiting for a decision from the said Authority, the applicant has chosen to file the present writ petition which has been transferred to this Tribunal which in our considered view is also not maintainable.

Accordingly, looking into any angle, we are of the considered view that the applicant is not entitled for any relief as claimed in this application and consequently the application stands dismissed. There shall no order as to cost.

The Interim order passed, pending the present application as well as the writ petition which was transferred to this Tribunal, stand vacated.