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BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN REGION, CHENNAI
APPEAL No.97 of 2013(SZ)
In the matter of:
M/s. Indian Rare Earths Limited (A Govt. Of India Undertaking) Manavalakurichi 629 252 Kanyakumari District. .. Appellant
and
1. District Environmental Engineer Kanyakumari District Tamil Nadu Pollution Control Board 30, Kesari Street, Mathias Nagar Nagercoil-629 001.
2. District Coastal Zone Management Authority Rep.by its Chairman Office of the Senior District Collector Kanyakumari District.
3. M/s. V.V. Minerals
Keeraikaranthattu Thisaiyanvilai Tirunelveli District 627 657 Through its Managing Partner Shri S. Vaikuntarajan .. Respondents
(Praying for to set aside the order of rejection of the Appellant’s CRZ clearance
Application in Ref: IRELMK/Res/CRZ-44.6212/2012-13/887 dated 9th February
2013 as contained in the Minutes of the 59th Meeting of the 2nd respondent of
Kanyakumari District held on 10th July 2013 and communicated to the Appellant
vide 1st Respondent’s Letter No. NGL-CRZ 01 (161)/2012-13/887 dated 19th July
2013 and consequently allow the Appellant’s CRZ Clearance Application Ref.
IRELMK/Res/CRZ-44.6212/2012-13/887 dated 9th February 2013 under CRZ 2011
Notification and etc.,)
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Counsel Appearing: For Appellant : M/s. Ramasubramaniam Associates, Advocates, Chennai For respondents: Shrimathi Rita Chandrasekar, Advocate for Respondent No.1 M/s. M.K. Subramanian and M.R. Gokul Krishnan, Advocates for Respondent No.2, M/s. Srinath Sridevan for Respondent No. 3.
APPLICATION NO. 419 Of 2013 (SZ) In the matter of: 1. M/s. V.V. Minerals
Rep. by Shri S. Vaikuntarajan Managing Partner Keeraikaranthattu Thisaiyanvilai Tirunelveli District 627 657 .. Applicant
and
1. The Ministry of Environment and Forests (GOI) Rep. by its Director/MoEF/Member Secretary of Experts Appraisal Committee Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi- 110 003.
2. M/s. Indian Rare Earths Limited
Manavalakurichi Kanyakumari. .. Respondents
(Praying for to declare that the 1st Respondent is not entitled to recommend the
grant of Environmental Clearance in respect of a mining project in violation of
MMDR Act and MCR to wit, the requirement set out in paragraph (x) of Form J of
the MCR and consequentially set aside the recommendation made by the 1st
Respondent herein in paragraph 2.26 of its Minutes of Eighth Meeting of the
Reconstituted Committee of Experts Appraisal Committee for Environmental
Appraisal of Mining Projects constituted under EIA Notification 2006 and etc.,)
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Counsel Appearing: For Applicant : M/s. Srinath Sridevan, Advocate For Respondents: Shrimathi C. Sangamithirai, Advocate for respondent No.1, M/s. Ramasubramaniam Associates, Advocates, Chennai
JUDGMENT
Present:
(1) Hon’ble Shri Justice M. Chockalingam, Judicial Member
(2) Hon’ble Prof. Dr. R. Nagendram, Expert Member
Date: 24th February, 2014
_________________________________________________________________
(Hon’ble Shri Justice M. Chockalingam, Judicial Member)
Appeal No. 97 of 2013 (SZ)
This appeal is preferred challenging an order of rejection of the application
made by the appellant seeking Coastal Regulation Zone ( for short ‘ÇRZ’)
clearance in the 59th meeting of District Coastal Zone Management Authority of
Kanyakumari District shown as 2nd respondent held on 10th July 2013 and
communicated in Letter No. F-NGL-CRZ 01(161)/13 dated 19.07.2013.
2) Short facts necessary for the disposal of this appeal can be stated
thus:
The appellant, a full-fledged Govt of India undertaking and incorporated in
1950 is under the administrative control of the Department of Atomic Energy. It
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operates a number of mining plants across the country engaged in mining and
separation of beach sand minerals such as IIimenite, Rutile, Zircon, Monazite,
Sillimanite and Garnet apart from a number of value added products. This appeal
is concerned with only a portion of appellant’s mining lease area located at
Midalam and Manavalakurichi of Kanyakumari District. The appellant made
application for CRZ clearance under CRZ Notification, 2011 by the 1st respondent.
In respect of mining area totally measuring 44.6212 ha (a) 2978.12 ha falls under
deemed extension G.O. Ms. No. 1085 dated. 21.9.1977 and (b) 14.84 ha falls
under fresh mining lease grants – G.O. (3D) No. 74 dated 17.6.1998.
3) In 2007, an organization under the name the Coastal Environmental and
Ecological Conservation Committee filed a W.P. 5678/2007 in the High Court of
Madras seeking a writ of mandamus against the 2nd respondent to forbear the 9th
respondent “the appellant herein” from carrying on mining operations/activities at
Manavalakurichi, Kanyakumari District which fell within CRZ for not obtaining
clearance under CRZ Notification and also to direct the 4th respondent to withdraw
the consent, if any, granted . The appellant filed a detailed counter pointing out
that the Environment Impact Assessment (for short ‘EIA’) Notification 2006 and
CRZ 1996 Notification were not applicable to the mining operations for the
appellant at Manavalakurichi since the same was established long before the
issue of the said notifications. It was also stated that there have been no setting up
of facilities or expansion of the existing facilities after the said notification came
into force. However, by way of abundant caution, the appellant applied for
Environmental Clearance (EC) before the Ministry of Environment and Forests (for
short ‘” MoEF) under the EIA Notification, 2006. When the same was brought to
the notice of the High Court, the Writ Petition was disposed of with an order stating
that in the event of filing such application by the 9th respondent (the appellant
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herein), the 2nd respondent was directed to consider and pass orders on the same
in accordance with law after giving an opportunity to the writ petitioner. On receipt
of the order, it was noticed that the High Court had directed the 2nd respondent
namely the Chairman, Tamil Nadu Coastal Zone Management Authority and the
Secretary, Department of Environment and Forests, Government of Tamil Nadu to
pass orders on the application for clearance as and when filed. The clearance
under CRZ Notification, 1991 was to be granted by the MOEF, Government of
India who was also the authority for granting EC under EIA Notification, 2006.
Hence the appellant filed a Miscellaneous Petition in M.P.No.1 of 2010 seeking
modification of the earlier order dated 18th Oct 2010 and accordingly the said order
was modified directing the 1st respondent to consider and pass orders on the same
in accordance with law after giving an opportunity to the petitioner within a period
of 4 weeks from the date of submission of the application. In compliance of the
order, the appellant submitted 3 applications for clearance to MoEF for 4 mining
lease areas as follows:
(1) 29.78.12 ha : The mining lease was executed on 15.10.1979 and the
lease was under renewal with effect from 16.10.1999. The renewal
application in Form J was submitted on 16.10.1999 and it was under
deemed extension as per rule 24 b A(6) of the Miner Concession Rules,
1960.
(2) 14.84.0 ha: A fresh mining lease was granted to the appellant on
17.06.1998 for 20 years. The mining lease deed was not executed for
want of environmental clearance.
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(3) 141.22.69 ha: Existing mining lease granted on 12.08.1981 by the
Government of Tamil Nadu and under renewal with effect from
26.06.2004.
(4) 7.06.0 ha: This mining lease area was granted under the Government
order in Industries Department and the lease deed was executed on
31.08.1970. The Government of Tamil Nadu recommended renewal of
mining lease for a further period 20 years. Presently the same is under
deemed extension with effect from 31.08.2010.
4) The MoEF granted Terms of Reference (for short ‘ToR’) for all the
applications. In so far as the subject mining lease was concerned the ToR came to
be issued by the Ministry’s letter dated 16.05.2011. The TOR Nos. 9 and 10 read
as follows:
“9. Identification of CRZ area. A CRZ map duly authenticated by one of
the authorized agencies demarcating LTL, HTL. CRZ area, location of
the mine lease and other project activities with reference to CRZ,
coastal features such as mangroves, if any. Recommendations of the
State Coastal Zone Management Authority for the project should also
be furnished.
10. NOC from State Pollution Control Board as required under CRZ
Notification, 2011 should also be furnished.”
5) Since the CRZ Notification, 2011 superseded the CRZ Notification, 1991
the ToR required the appellant to seek also a recommendation from the State
Coastal Zone Management Authority. On receipt of the ToR, the appellant took
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steps for a comprehensive EIA for all the applications. Public hearings as required
by law were conducted. Thereafter, the appellant submitted the particulars of
compliance with the ToR to the MoEF. In so far as the requirement of favourable
recommendation from the State Coastal Management Authority under CRZ
Notification, 2011 was concerned, the appellant submitted 3 applications for 4
mining leases to the 2nd respondent through 1st respondent under cover of his
letter dated 9th February 2013. One of the applications submitted to the District
Coastal Zone Management Authority pertained to the subject mining lease area
namely 29.78 ha. and 14.84 ha together.
6) The Expert Appraisal Committee (for short ‘EAC’) of MoEF reviewed the
appellant’s EIA report during its meeting held on 27th and 28th June 2013 and
recommended for Environmental Clearance (EC) under EIA Notification, 2006 to
the appellant for all 4 mining leases subject to certain conditions including that
necessary clearance from the State Coastal Zone Management Authority should
be secured.
7) After the application for CRZ clearance was filed in February 2013, the
1st respondent by a letter dated 08.04.2013 forwarded a copy of the minutes of
56th meeting of the District Coastal Zone Management Authority (the second
respondent herein) held on 28.03.2013. The minutes reflected that the
consideration of the application was being deferred for want of (1) land ownership
documents, and (2) consent letters from the land owners of the subject mining
area for commencement of mining operation. Consequently, the 1st respondent
returned the application and requested the appellant to resubmit the application
with the above details. The appellant replied to the 1st respondent by his letter
dated 23.05.2013 stating that the CRZ Notification, 2011 or the prescribed
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application from (Form 1) did not mandate the furnishing of land ownership details
or consent from the land owners at the time of submission of application for CRZ
clearance. However, the appellant furnished the details of land ownership to the 1st
respondent. In so far as the extent of mining area in 29.78 ha is concerned, the
appellant owned 4.46 ha the 3rd respondent owned about 14.77 ha and the
balance is owned by other individual pattadars and some come under Government
poromboke land. The other extent in 14.84 ha is entirely owned by the appellant. It
was also informed to the 1st respondent that the appellant should furnish the
consent from the third party lands owners only at the time of commencement of
actual mining operation as per the Minor Mineral Development and Regulation Act,
1957 (for short ‘ MMDR Act, 1957’) and Mineral Concession Rules, 1960 (for short
‘MCR,1960). It is pertinent to note that the grant of CRZ clearance alone was not
sufficient requirement to commence the mining operation. The 1st and 2nd
respondents should not have insisted on furnishing the consent by the land
owners at a premature stage since the appellant has to necessarily obtain such
consent prior to commencement of the mining operation as required by the above
act and rules. It was not germane to the merits of the appellant’s application for
clearance under CRZ Notification, 2011. It is relevant to note that even EAC of
MoEF has recommended the grant of EC under EIA Notification, 2006 subject to
the condition that in the private patta lands which are not owned by the appellant,
the mining will be carried out only after obtaining the consent from the concerned
land owners as per the provisions of MCR, 1960 and MMDR Act, 1957. The
appellant was of the fond hope that the 2nd respondent would proceed to
favourably consider the application. But, the 1st respondent communicated to the
appellant by a letter dated 11.06.2013 referring to the objection letter dated
27.03.2013 by the 3rd respondent. A copy of the letter was not furnished to the
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appellant, but it was stated in the letter dated 11.06.2013 of the 1st respondent that
the 3rd respondent had filed a suit in O.S.No.83/2005 before the Sub Court,
Tirunelveli against the Tamil Nadu Government and obtained a judgment and
decree forbearing the Tamil Nadu Government from considering and granting any
mining lease to third parties in respect of the land belonging to 3rd respondent and
also that the 3rd respondent had already obtained CRZ clearance from MoEF on
21.03.2006 for the lands in S. Nos. 55/2A, 2B, 4, 9A, 56/3A, 4A, 5, 82/2A, 83/9A,
89/5, 90/1,2,3,4,5, and 91/1,2,3 in Keezhimadalam village, Vilavancode Taluk of
Kanyakumari District.
8) The 1st respondent after narrating of the objection by the 3rd respondent,
even without any consideration, scrutiny or analysis of the said objection
straightaway demanded the appellant to exclude those lands in the above
mentioned S. Nos. in respect of which the 3rd respondent had allegedly granted
CRZ clearance and in connection with O.S.No.83/2005 which was pending. The
appellant sent a detailed reply stating that the Sub Court’s order did not disable
the 2nd respondent from considering the application of the appellant on merits. It
was also stated that the grant of CRZ clearance to 3rd respondent for the land
falling within 29.78 ha extent did not handicap the appellant’s request for CRZ
clearance in respect of the very same land as it was the appellant alone who
enjoyed the mining rights for those lands by virtue of statutory deemed extension.
The appellant alone enjoyed the exclusive mining rights as on date for the subject
mining area. Though comprehensive details were given by the appellant, all fell on
deaf ears. But, the 1st respondent forwarded, by his letter dated 19.07.2013, the
minutes of the 59th meeting of the 2nd respondent held on 10.07.2013 which
reflected that subject application was rejected for the reasons that the appellant
had not furnished the consent of the 3rd party land owners for commencement of
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mining operation; that the CRZ clearance had already been given to 3rd
respondent for some of the lands in 29.78 ha extent; that the land dispute was
pending in respect of the land in 29.78 ha extent at the instance of the 3rd
respondent; that the appellant had no mining rights in view of the injunction issued
against the Government granting mining lease in respect of the lands of the 3rd
respondent to any 3rd party and that the appellant had not excluded those survey
numbers in respect of which the above qualifications were applicable.
9) It is pertinent to point out that the 1st respondent had rejected the
application even in respect of 4.84 ha which was entirely owned by the appellant
and in respect of which no 3rd party was required to give consent for
commencement of mining operation. No environmental or scientific objection was
raised so far to the appellant’s application for CRZ clearance in respect of the
subject mining area. Under the circumstances, the appellant was constrained to
file this appeal challenging the rejection of CRZ clearance application dated
09.02.2013.
10) The 1st respondent filed reply affidavit with the following
averments:
11) The appellant has established the industry for mineral processing at
Manavalakurichi in Kanyakumari District in the year 1965 for which he obtained
consent from the Tamil Nadu Pollution Control Board (for short ‘Board’) under the
Water (Prevention and Control of Pollution) Act, 1974 (for short ‘Water Act”) and
Air (Prevention and Control of Pollution) Act, 1981 (for short ‘Air Act’) for
manufacturing limonite, Rutile, Zircon, Monazite, Garnet, Zirconium Oxide,
Zirconium dry fit, Zirconium Oxy Chloride, and Zirconium fusion fit. At present the
unit is manufacturing limonite, Rutile, Zircon, Monazite, Garnet by separating the
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minerals from the beach sand. However, the unit has not obtained separate
consent for its mining activities. It filed an application for Clearance under Coastal
Regulation Zone Notification, 1991 for mining activities in Manavalakurichi,
Lakshmipuram, Colachel, Keezhmidalam, Midalam, Keezhkulam, Ezhudesam,
and Kollancode villages in Kanyakumari District in the year 2002 and the subject
was placed before the District Coastal Zone Management Authority, Kanyakumari
District at its meeting held on 11.09.2004 and the proposal was submitted to the
State Coastal Zone Management Authority along with the schedule II on
07.10.2004. Subsequently, the appellant/unit filed 3 separate applications for the
EC under EIA Notification, 2006 for its mining projects based on mining leases in
the year 2011. The MoEF requested the appellant/unit to conduct public hearing
and to obtain CRZ Clearance under CRZ Notification, 2011 and the consent of the
State Pollution Control Board. Accordingly, the unit applied for conducting public
hearing and the public meeting was conducted on 22.03.2013. The minutes of the
public hearing was submitted to the State Environment Impact Assessment
Authority (for short ‘SEIAA’) through the Tamil Nadu Pollution Control Board. The
appellant/unit submitted 3 separate applications to the District Coastal Zone
Management Authority, Kanyakumari District for CRZ Clearance under CRZ
Notification as follows:
Application 1 For Government lands (sea coastal poromboke) on the south of
S.Nos. 378, 379, 387, 388, 402, 403, 404 and 652 of Manavala-
kurichi village, Kalkulam Taluk, Kanyakumari District-
Area 7.06 ha.
Application 2 S.N os. 108,110,112,371,374,375,376 at Manavalakurichi
village, Kalkulam Taluk, 14.84 ha.
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S.N os. 56/2A, 2B,3A, 4B, 5A, 5B; S. No.55/2A, 2B, 3, 4, 5, 6,
9A, 9B, 10; S. No. 82/2B, S. No.83/9B, 9A part, 10A part; S.
No.89/5A part; S. No.90/1, 2, 3 45, 91/1 part, 2 part, 3 part, 4
part, and 5 part in Keezhmidalam village- 12.89.48 ha.
S. Nos. 181/1A, 1B, 2, 3, 4, 5; 182/1A, 1B, 2A, 3, 4, 5, 6; S. Nos.
S.No.180/1A,1B,2A,3,4,5,6; S. No.179/1 part, 2 part, 3, 4, 5, 6, 7
part, 8, 9, 10, 11A, 12A, 12B, 12C, S. No.178/1 part, 2 part, 3, 4,
5, 6, 7, 8A, 8B, 9, 10, 11, 12 part, 13, 14, 15, 16, 17. S. Nos.
177/3, 4, 5 part, S.No.164/1,2,3,4,5A,5B, 6A, 6B, 7A, 7B, 8, 9,
10, 11, 12, 13, 14, 15, 15; S. No. 166;/3 part, 4 part, 176/1 part,
2 part, 3 part; and S .Nos. 165, 163/1, 2, 3 of Midalam village,
Vilavancode Taluk- 16.88.64 ha.
Application 3 S. Nos. 100 to 105, 109, 111, 377 to 380, 384 to 392, 396 to
404, 410, 411, 650 to 654 of Manavalakurichi village, Kalkulam
Taluk.
S. Nos. 867/1, 2, 3, 4, 5; S. No.868/1, 2, S. No.787/1, 2, 3 , 4 of
Lakshmipuram village, Kalkulam Taluk.
T.S.No.D1-3 to 20, 21 part, 22, 23, 31 part of Colachel Town,
Kalkulam Taluk, Kanyakumari District.- 141.22.869 ha.
12) The applications for the consent of the Board were returned to the
appellant/unit for want of CRZ Clearance under CRZ Notification, 2011 and valid
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mining lease. The application submitted to the District Coastal Zone Management
Authority for CRZ Clearance under CRZ Notification, 2011 was placed before the
District Coastal Zone Management Authority in its 56th meeting conducted on
28.03.2013. The Committee decided to defer the subject for want of land
ownership documents and consent letters from the land owners of the mining
areas. The decision was communicated to the appellant/unit with a request to
furnish the land ownership documents and consent letters from the land owners.
The unit furnished the land documents and consent letters from all land owners in
the Application Nos. 1 and 3. The subject was placed before the District Coastal
Zone Management Authority in its 59th meeting on 10.07.2013. The Committee
decided to recommend the subject to the Tamil Nadu Coastal Zone Management
Authority and the proposal was submitted to the Tamil Nadu Coastal Zone
Management Authority. In so far as the Application No. 2, the unit submitted the
land ownership documents and consent letters from the land owners except from
the Respondent No.3.
13) The 3rd respondent raised objections stating that the 28.78 ha of his
land was included in the area claimed by the appellant/unit and he has not given
consent to the appellant/unit. Apart from that, the 3rd respondent had obtained the
CRZ Clearance under CRZ Notification for a portion of his land for carrying on the
mining activities. This fact was informed to the appellant with a request to furnish
fresh applications after deleting the lands owned by the 3rd respondent. But, the
appellant did not delete the lands owned by the 3rd respondent and the 3rd
respondent replied that the surface right of the land should be insisted only at the
time of actual mining operation. The appellant quoted a letter issued by the Under
Secretary, Ministry of Mines of the Government of India. A clarification was sought
for from the Deputy Director (Mines), Kanyakumari District who furnished a reply
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stating that the 3rd respondent had obtained an order from the Sub Court,
Tirunelveli in O.S.No.83/2005 restraining grant of mining lease to any third party
on the lands owned by them. Both the Tata Steel Limited and the appellant had
filed revision petition before the Hon’ble High Court in Madurai Bench against the
order of the Sub Court, Tirunelveli which was dismissed. Hence, the Deputy
Director (Mines) replied that the request of the appellant for CRZ clearance might
be considered only for the land owned by the appellant for which the appellant
obtained consent letters. The facts were placed before the District Coastal Zone
Management Authority in its 59th meeting held on 10.07.2013 when the Committee
decided to reject the proposal since the District Coastal Zone Management
Authority has considered the proposal furnished by the appellant as a whole and
cannot delete a portion of the proposal on its own and the same was informed to
the appellant and hence, suitable orders may be passed in the appeal.
14) The 2nd respondent filed reply affidavit with the following
averments:
15) The appellant applied for CRZ clearance under CRZ Notification, 1991
for mining activities in the year 2002 which was prior to the EIA Notification, 2006.
The subject was placed before the District Coastal Zone Management Authority in
the meeting held on 11.09.2004 and the proposals were submitted to the Tamil
Nadu State Coastal Management Authority on 07.10.2004. As per the ToR issued
by the MoEF, the appellant applied for conducting a public hearing for its mining
activities. Accordingly, the public hearing was conducted on 22.03.2013 and at the
time of the public hearing itself the 3rd respondent had raised objection for granting
EC to the appellant for the lands owned by the 3rd respondent. The appellant had
also filed 3 separate applications for CRZ clearance under CRZ Notification, 2011
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for mining operation and the same was placed before the Committee in its 56th
meeting held on 28.03.2013 and the Committee decided to defer the proposal for
want of land ownership documents and consent letters from the land owners of the
mining area. The decision was intimated to the appellant and the applications were
returned to the appellant requesting to resubmit along with the ownership
documents and consent letters from the land owners. The appellant resubmitted
the applications stating that furnishing of land ownership documents and consent
letters from the land owners was not mandatory at the time of filing the
applications under CRZ Notification, 2011. However, the appellant had submitted
the land ownership documents and consent letters from the land owners for the
applications made in 1 and 3. The appellant has claimed that the surface right is
not mandatory only in Serial No. 2 in the tabular column stated supra at the time
of filing application under CRZ Notification, 2011. It is necessary to point out that
the appellant had obtained the CRZ clearance under CRZ Notification, 1991 for a
portion of lands which were included by the appellant for carrying on the mining
activities. The 3rd respondent had also raised objection for granting the CRZ
clearance under CRZ Notification, 2011 to the appellant in respect of the lands
owned by the 3rd respondent. It is necessary to mention that the surface rights is
not mandatory for processing the application for mining lease only and it did not
mention anything about processing of the application under CRZ Notification,
2011. The contentions of the appellant made in paragraphs 23-30 are not correct.
16) The MCR, 1960 and the MMDR Act, 1957 provide ‘for a statement in
writing that the applicant has when the land is not owned by him obtained a
surface rights over the area or has when the land is not owned by him obtained
consent of the owner for staring mining operations.’ It is also further stated therein
that no further consent would be required in the case of renewal when the consent
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has already been obtained during the grant of lease. In the instant case, the 3rd
respondent who is the land owner raised objection for granting the environmental
clearance to the appellant. Hence, the contention of the appellant cannot be
accepted. The application of the appellant in Application No. 2 was placed before
the District Coastal Zone Management Authority in its 59th meeting held on
10.07.2013. The Committee deferred the proposal for want of land documents and
consent letters from the land owners. Apart from that, in view of the objection
raised by the 3rd respondent and also in view of the pendency of O.S.No.83 of
2005 before the Sub Court, Tirunelveli, which restrained the granting of lease to
third parties and the District Coastal Zone Management Authority can consider the
proposal only as a whole and cannot delete a portion on its own, the District
Coastal Zone Management Authority rejected the proposal submitted by the
appellant. In view of the all the above, the 2nd respondent prays that necessary
orders have to be passed.
17) The 3rd respondent filed the reply affidavit with the following
averments:
18) The appellant’s primary and only contention is that there is absolutely
no prohibition for a person to apply for a mining lease or renewal thereof in some
one’s land and all that is required is to obtain that person’s consent before
commencing actual mining operation and it is on this basis that it is contended that
the Tamil Nadu Coastal Zone Management Authority erred in rejecting the
appellant’s CRZ clearance application. In G.O. Ms. No. 1085, Industries
Department dated 21.09.1977, the appellant was granted a mining lease over an
extent of 27.78.12 ha in Keel Midalam and Midalam villages in Vilavancode Taluk
of Kanyakumari District from 15.10.1979 to 14.10.1999 and the appellant’s case is
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that it applied for renewal on 16.09.1998 and when the application for renewal was
not rejected by virtue of rule 24 A (6) of MCR,1960, the appellant is entitled to
deemed extension of the mining lease. But, the lands in respect of which the
appellant has applied for renewal of its mining lease do not at all belong to the
appellant, but to various individuals including the 3rd respondent. The real
question is whether the appellant can obtain a renewal of the mining lease over a
third party’s land. The 3rd respondent owns land in the specified survey numbers
as noted in paragraph 4.4 of the reply affidavit in Keezhmidalam village and
Midalam village and objected to the grant of any kind of CRZ clearance and
refused to give consent for the appellant to undertake any mining activity over the
lands of the 3rd respondent. The Tahsildar, Padmanabapuram also recorded the
fact that barring a minor extent of land, the rest of land was owned by private
pattadars and the appellant had not obtained any consent from any of those
persons. Further, the 3rd respondent had already applied for and obtained CRZ
clearance for undertaking mining activity in S. Nos. 178/10, 178/11, 179/9, 179/10,
179/11, 113/1(part), 115/3B, 115/3C, 115/3D, 115/5, 115/6A, 115/10 (part), and
the same was granted in Letter No. F.No.J17011/44/98-IA-III, dated 12.11.2003
issued by the MoEF and for this reason also the 3rd respondent opposed the grant
of CRZ clearance in respect of these lands. Apart from the 3rd respondent, the
farmers who were cultivating lands also opposed to the grant of any clearance to
the appellant for its proposed mining activity. Meanwhile, on 21.03.2000, the 3rd
respondent filed mining lease application in their patta lands over an extent of
3.63.0 ha in S. No. 113 and 115 of Midalam villages in Vilavancode Taluk.
Thereafter, the 3rd respondent filed another mining lease application over an
extent of 321.09.0 ha in Keel Midalam, Midalam, Keel Kulam villages in
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Vilavancode Taluk including lands belonging the 3rd respondent over which the 3rd
respondent is having a prior mining lease. On 10.03.2004, the Government of
Tamil Nadu granted mining lease to the appellant over an extent of 3.63 ha in
S. Nos. 113 and 115 of Midalam village. The 3rd respondent preferred a revision
against the order passed by the Government of Tamil Nadu. On 05.10.2004, the
revisional authority set aside the order passed by the Government of Tamil Nadu
and directed the Government to consider the mining lease application submitted
by the appellant afresh. The appellant preferred W.P. 31885 of 2004 before the
Hon’ble Madras High Court challenging the order passed by the revisional
authority dated 05.10.2004. As on date, the mining lease application of the
applicant both in respect of 3.63 ha and 321.09 ha are pending. The appellant is
therefore, attempting to spin out his theory that the mining lease can be granted
over the lands of others. This theory is against the mining laws. In this case, the
reference to rule 22(3) of the MCR, 1950 will be of no avail to the appellant as he
never obtained the consent from the land owners at the time of grant of original
lease. Right from the year 1850, the law in this country has been that the
proprietor of the land is the owner of all the sub surface minerals. Most recently,
the Hon’ble Supreme Court of India in C.A. Nos. 4540-4548 of 2013, held on
08.07.2013 that there is nothing in the law which declares that all mineral wealth of
sub -soil rights vest in the State. On the other hand, the ownership of sub-
soil/mineral wealth should normally follow the ownership of the land, unless the
owner of the land is deprived of the same by some valid process. It is this legal
position which is recognised and reiterated in rule 22 of the MCR (with respect to
applications for lease) and rule 24 A of the MCR (with respect to applications for
renewal of lease). Under rule 24 A of the MCR, an application for renewal of the
19
lease should be in Form J, a statutory form, and therefore must be strictly
complied with. Paragraph (x) of the From J reads as under:
“(x). Brief description of the area with particular reference to the
following:
(a) Does the applicant has surface right over the area for which he is
making an application for grant of a mining lease.
(b) If not, has he obtained the consent of the owner, and the occupier
of the land for undertaking mining operation. If so, the consent of
the owner and occupier of the land be obtained in writing and be
filed.
19) Therefore, a person is not even entitled to apply for a mining lease
or renewal of lease in respect of a particular piece of land unless and until he
possess either (a) the surface rights over that piece of land or (b) the consent
of the holder of such surface rights. Therefore, a conjoint reading of the above
would make it clear that the appellant’s contention that he can get post facto
consent from the landowners is legally wrong.
20) By the year 2005, the appellant began giving out that they would
usurp the leases obtained by the 3rd respondent and since the 3rd respondent
apprehended that the mining leases would be granted to third parties over the
lands belonging to it, the 3rd respondent filed a civil suit in O.S.No.83/2005 for
enforcement of its surface rights in the minerals lying in its lands. The 2nd
respondent herein sought to implead himself in the said proceedings, but the
said application was dismissed by the Hon’ble Madurai Bench of Madras High
Court on 24.03.2006. The suit also came to be decreed subsequently.
20
21) The 3rd respondent was keen to safeguard its rights over the lands
owned by it by ensuring that no third party, such as the appellant herein, was
granted any kind of mining related approvals over the lands owned by it.
Especially, the 3rd respondent was keen to ensure that no EC is applied for or
granted to any third party in respect of the lands belonging to the 3rd
respondent, since that would jeopardize its rights in the event of the 3rd
respondent seeking an EC in respect of its own lands. Till date, the appellant
has neither applied to the 3rd respondent for any consent as envisaged in
paragraph (x) of the application for mining lease or renewal thereof. An
applicant for mining lease/renewal of lease must possess surface rights.
Otherwise, they are not even entitled to apply for a mining lease/renewal.
Therefore, the theory which is propounded that post facto consent from the
surface right owners can be obtained prior to actual mining is a bogus theory
and is against law. The appellant has not filed the mining lease and renewal
application in the prescribed form accompanied by the prescribed statutory
requisite documentary evidences. The appellant alleged that they have
applied for renewal of mining lease in respect of entire survey number which
also comprises area to which mining lease granted to the 3rd respondent. In
other words, the lands in S.Nos. 178/10, 178/11, 179/9, 179/10, and 179/11
do not belong to the appellant and the lands are owned by the 3rd respondent.
22) In the matter of Pallava Granites vs Government of Andhra
Pradesh (AIR 1997 SC 209), the Hon’ble Apex Court has held as follows:
“The right to excavate mines from the land of private owner is
based on the agreement; unless the lessor gives his consent,
no lessee has a right to enter upon his land and carry on mining
21
operation. The right to grant mining lease to excavate the mines
beneath the surface is subject to the agreement of the land
owners. Therefore, with a view to ensure that there will not be
any obstruction in working of the mining lease and also for the
peaceful operation to the excavation of the mines, insistence on
the consent of the landlord is necessary.”
23) This principle enunciated with respect to the lessors and the lessees
applies a fortiori to land owners and third parties. The unreported judgment of the
Madras High Court in S. Ramasamy vs Union of India in W.P. No. 3091 of 2010
dated 29.09.2010 proceeds further that the reading of rule 22 (3) (h) and Rule 24
A of the MCR would make it clear that a consent once given, cannot continue
forever and that separate express consent should be obtained for renewal of
mining lease. Hence, the entire application submitted by the appellant is invalid in
the eye of law. While filling the application for EC, the appellant has described the
property instead of describing the properties by survey numbers, given only the
latitude and longitude of the land since if the survey numbers are shown, it would
be very easy for the 3rd respondent to demonstrate that he is the owner of the
lands in question and the appellant is not the rightful lessee of the lands. It is an
admitted fact by the appellant that it had not carried out any mining operations for
the whole lease period of 20 years. As per section 4A (4) of the MMDR Act, 1957
the mining lease automatically lapsed. The appellant did not file the application for
revival of the lease within a period of 6 months from the date of lapse of the mining
lease. The Appellant had not taken any steps to process his renewal application
from the year 1999, on the reasons of the appellant enjoying the deemed
provisions under rule 24 A (6) of the MCR. As such, the 3rd respondent has
already obtained EC for the lands owned by the 3rd respondent for the existing
22
mining lease as well as pending lease application and hence for all the above
submissions the Tamil Nadu Coastal Zone Management Authority has acted
validly, properly and in correct exercise of powers in rejecting the appellant’s
application for CRZ clearance and there is nothing perverse, capricious or fanciful
in the order warranting any interference of the Tribunal and the 3rd respondent
seeks to dismiss the appeal.
Application No. 419/2013:
24) The applicant herein has sought for a declaration that the EAC of the 1st
respondent, MoEF is not entitled to recommend the grant of EC in respect of the
mining project in violation of MMDR, 1957 and MCR, 1960 and consequently to
set aside the recommendation made by the 1st respondent in its 8th meeting of the
reconstituted committee of the EAC for environmental appraisal of the mining
project constituted under EIA Notification, 2006 with the following averments:
25) The applicant, namely V.V. Minerals owns several extents of lands in
Kanyakumari District in respect of which mining leases have been granted for the
mining of beach sand minerals and those leases are subsisting. The 2nd
respondent, namely M/s. Indian Rare Earths Ltd., was also granted certain leases
in respect of certain adjacent lands and the period of mining leases for those lands
came to an end. The mining activities of the applicant and the 2nd respondent are
governed by the MMDR Act, 1957. According to section 4 of the said Act, any
person desirous of undertaking mining activity should do so only after obtaining
mining lease as per the rules. Rule 22 of MCR, 1960 refers to the requirement of a
person to have a lawful right over the land in respect of which mining activities are
to be carried on. It requires a scrutiny of an application for a mining lease and
grant thereof. It also prescribes that the application should only be in Form I. In the
23
instant case, the question involved is in respect of an application for renewal of
mining lease. Under Rule 24 A, an application for renewal for lease should be in
Form J, a statutory one, which must be strictly complied with. Form J requires in
paragraph (x) a brief description of the area with particular reference to the
following:
(a) Does the applicant have surface right over the area for which
he is making an application for grant of a mining lease.
(b) If not, has he obtained the consent of the owner, and the
occupier of the land for undertaking mining operation. If so, the consent
of the owner and occupier of the land be obtained in writing and be
filed.
26) Thus, it would be clear that a person is not entitled for mining lease or
renewal of lease in respect of a particular piece of land unless and until he
possesses either surface rights over the piece of land or consent of the holder of
such surface rights.
27) The 2nd respondent applied to the 1st respondent/MoEF for EC for
increasing his production capacity from 90,000 TPA to 1,50,000 TPA showing the
very same land in the application. The application was rejected on 22.10.2008 and
the 2nd respondent remained silent for few years. The officials of the 2nd
respondent were giving out that they would usurp the lands obtained by the
applicant. Apprehending that the mining lease would be granted over the
applicant’s land to third parties, the applicant filed a suit in O.S.No.83/2005 for
enforcement of surface rights in the minerals lying in his lands. The application
filed by the 2nd respondent seeking impleadment was dismissed by the Hon’ble
Madurai Bench of the Madras High Court. Subsequently, the said suit was
24
decreed. Till date the 2nd respondent has not applied to the applicant nor has the
applicant given any consent for mining lease or renewal of the mining lease in
favour of the 2nd respondent. An application for mining lease/renewal of lease
should possess surface rights. Otherwise, they are not entitled to apply for the
same. Hence, the theory that consent from the surface right owners can be
obtained prior to actual mining is against law.
28) When the 2nd respondent applied for EC in respect of the very same
lands and sought for issuance of ToR, one Non Governmental Organisation called
‘Coastal Environmental and Ecological Conservation Committee’ filed a PIL
against the 2nd respondent in W.P.No.5678 of 2007 before the Madras High Court
and the Hon’ble High Court by an order dated 18.10.2010 passed the following
orders:
“In the event of ... such filed by the 9th respondent (the 2nd respondent
herein), the 2nd respondent is directed to consider and pass orders on
the same in accordance with law after giving an opportunity to the writ
petitioner.”
29) By a subsequent order the word “R2” was replaced with the words “R1”
who is the 1st respondent herein. The 1st respondent passed an order on
16.05.2011 stating that the concerns raised by the public must be properly
addressed and accordingly prescribed 35 new items for inclusion in the ToR. Of
these 35 points, the following are relevant:
“3. A copy of the documents in support of the fact that the proponent is
the rightful lessee of the mines should be given.
25
34. Details of litigations pending against the project, if any with
directions/orders passed by any Court of law against the project should
be given.”
30) It is pertinent to point out that the 2nd respondent did not comply with
the directions. Instead, the 2nd respondent filed an application for clearance on
09.02.2013 and in parallel he also applied to the 1st respondent for EC. The 1st
respondent took up the application for consideration without awaiting CRZ
clearance from the Tamil Nadu Coastal Zone Management Authority before taking
up the issue for consideration. It chose to hastily proceed to dispose of the matter.
While the matter stood thus, the Tamil Nadu Coastal Zone Management Authority
has rejected the application of the 2nd respondent which is a subject matter of the
Appeal No.97 of 2013 (SZ) pending on the file of this Tribunal. It is also pertinent
to point out that according to the amendment made in the EIA Notification on
01.12.2009 in column No. 6 of Appendix I, the following is found:
“Note: The projects involving clearance under CRZ Notification, 1991
shall submit with the application, a CRZ map duly demarcated by one of
the authorised agencies showing the project activities with reference to
CRZ (at the stage of TOR) and the recommendation of the State
Coastal Zone Management Authority (at the stage of environmental
clearance).”
31) Thus, the EAC is liable to check for availability of the CRZ approval
before making their recommendation to the MoEF. However, the EAC erroneously
made their recommendations without checking the CRZ approval. At that juncture,
the applicant submitted a detailed objection to the 1st respondent on 25.06.2013
stating the lands in respect of which the EC was sought for were the lands over
26
which the 2nd respondent did not have the valid lease. Apart from that, the applicant
had also placed on record the materials to show that there were litigations on the
very same lands. The same was not disclosed by the 2nd respondent while applying
for EC.
32) On the date of hearing, the applicant was also present before the 1st
respondent with his counsel and was ready to make his submissions. The
representative of the Coastal Environmental and Ecological Conservation
Committee was also present to espouse the case of the public. When they were
ready to make their submissions, the representative of the applicant was directed
to go out of the hall; otherwise, they would be forcibly evicted by the security
personnel. The letter of the applicant’s counsel is filed to prove the said fact.
Subsequently, the representatives of the Coastal Environmental and Ecological
Committee were forcibly evicted. Thereafter, the 1st respondent hastily proceeded
to decide the application of the 2nd respondent favourably by the impugned order.
There is a recording that in respect of the private patta lands, which were not
owned by the 2nd respondent, mining could be carried out after obtaining the
consent from the land owners. The impugned order was not communicated to the
applicant and the applicant came to know about the impugned order only when the
2nd respondent preferred the Appeal No. 97 of 2013 (SZ) before this Tribunal.
Under such circumstances, the applicant has filed the application under the
National Green Tribunal Act, 2010 seeking the above declaration and
consequential relief.
33) On the pleadings placed by the parties the following points are
formulated for decisions:
27
Appeal No. 97 of 2013 (SZ):
1) Whether the order of rejection of the CRZ clearance to the appellant
made in F-NGL-CRZ 01(161)/13 dated 19.07.2013.by the 2nd respondent/DZCMA
is liable to be set aside on all or any of the grounds set out in the appeal.
2) Whether the appellant is entitled for the consequential relief of the CRZ
clearance on the application made by the appellant dated 09.02.2013 under CRZ
Notification, 2011.
3) Whether the appellant is entitled to any other relief.
Application No. 419 of 2013 (SZ):
1) Whether the applicant is entitled for a declaration that EAC was not
entitled to recommend for the grant of EC in respect of the mining project of the
appellant in violation of the MMDR, 1957 and MCR, 1960 and consequently the
impugned recommendations made by the EAC is liable to be set aside in respect of
the subject mining project of the appellant.
2) Whether the applicant is entitled to any other relief.
34) As could be seen above, the appellant namely the Indian Rare Earths
Ltd., has preferred the appeal challenging an order of rejection of its CRZ
clearance application dated 09.02.2013 while the 3rd respondent in the appeal has
sought for a declaration that the recommendation made by the EAC of MoEF-I.A.
Division in paragraph 2.26 of the minutes of Eighth Meeting of the Reconstituted
Committee of EAC for Environmental Appraisal of the mining project constituted
under EIA, 2006 is not valid since it is in violation of MMDR, 1957 and MCR, 1960
28
and consequently to set aside the same. On the request made by the parties, both
in the Appeal No. 97 of 2013 (SZ) and the Application No. 419 of 2013 (SZ) were
taken up for a joint enquiry for the sake of convenient discussion. The applicant in
Application No. 419 of 2013 (SZ) will be termed as the 3rd respondent. The 1st
respondent in the application, MoEF will be termed as MoEF and the 2nd
respondent in the application will be termed as the appellant. The parties in Appeal
No. 97 of 2013 (SZ) will be called as it is as shown in the appeal.
35) On completion of the pleadings in both the appeal and application, the
parties placed their documentary evidences. The parties were given sufficient
opportunity to place the submissions. The written submissions made by the parties
were also taken on record.
36) The Tribunal paid its anxious consideration on the submissions made by
the learned counsel on either side and also looked into all materials available.
Admitted facts which would emerge from the pleadings and available materials can
be stated as follows:
37) The appellant, a full-fledged Govt of India undertaking and incorporated
in 1950, is under the administrative control of the Department of Atomic Energy. It
operates a number of mining plants across the country engaged in mining and
separation of each sand mineral such as Iimonite, Rutile, Zircon, Monazite,
Sillimanite and Garnet apart from number of value added products. Equally, the 3rd
respondent owns large extent of lands in Kanyakumari District in respect of which
mining leases have been granted for the mining of beach sand minerals. The
appellant submitted 3 applications for clearance to MoEF for 4 mining lease areas
as follows:
29
1. 29.78.12 ha : The mining lease was executed on 15.10.1979 and
the lease was under renewal with effect from 16.10.1999. The
renewal application in Form J was submitted on 16.10.1999 and it
was under deemed extension as per rule 24 A (6) of the Miner
Concession Rules, 1960.
2. 14.84.0 ha: A fresh mining lease was granted to the appellant on
17.06.1998 for 20 years. The mining lease deed was not executed
for want of environmental clearance.
3. 141.22.69 ha: Existing mining lease granted on 12.08.1981 by the
Government of Tamil Nadu and under renewal with effect from
26.06.2004.
4. 7.06.0 ha: This mining lease area was granted under the
Government order in Industries Department and the lease deed
was executed on 31.08.1970. The Government of Tamil Nadu
recommended renewal of mining lease for a further period 20
years. Presently, the same is under deemed extension with effect
from 31.08.2010.
38) The MoEF granted ToR for all the applications. In so far as the subject
mining lease was concerned, the ToR came to be issued by the Ministry’s letter
dated 16.05.2011. The ToR Nos. 9 and 10 were to the effect for furnishing the
recommendation of the State Coastal Management Zone Authority (for short
‘SCZMA’) and also a No Objection Certificate from the State Pollution Control
Board. The CRZ Notification, 2011 which superseded the CRZ Notification, 1991,
made it clear that under Clause 4 (1) (b), the projects which are listed under the
notification also attract EIA Notification, 2006, for such projects clearance under
EIA Notification only shall be required subject to being recommended by the
30
concerned State/Union Territory Coastal Zone Management Authority. Thus, a
necessity arose for the appellant to seek a recommendation from SCZMA. On
receipt the ToR, the appellant took steps for an EIA study in respect of all
applications and also public hearing. Following the same, appellant submitted a
compliance of ToR to MoEF. Apart from that, the appellant made 3 applications for
the above for 4 mining lease areas to the 2nd respondent through the 1st
respondent, dated 09.02.2013. One of those 3 applications submitted to the
DCZMA is the subject mining lease areas in 29.78 ha and 14.84 ha together.
While the matter stood thus, the Environmental Appraisal Committee (for short,
EAC) of MoEF, on the strength of the appellant’s EIA report, during its meeting
held on 27 and 28.06.2013 recommended that the EC under EIA Notification, 2006
could be granted to the appellant for all 4 mining lease areas subject to certain
conditions. One of those conditions was that necessary clearance from SCZMA
should be secured. It is in respect of the recommendation made by the EAC of
MoEF- I.A. Division in the paragraph 2.26 of the minutes of Eighth Meeting of the
Reconstituted Committee of EAC for Environmental Appraisal of the mining project
constituted under EIA, 2006 for grant of EC to the appellant in respect of the
subject matter mining lease area the 3rd respondent has sought for a declaration in
his application as invalid.
39) After the receipt of the applications for CRZ clearance which were made
in February 2013, the DCZMA/ the 2nd respondent in its 56th meeting held on
28.03.2013 deferred the application concerning with the subject matter mining
lease area for want of land ownership documents and consent letters from the
land owners of the subject matter mining lease area for commencing the mining
operation. The 1st respondent/ District Environmental Engineer of the Tamill Nadu
Pollution Control Board returned the said application requesting the appellant to
31
resubmit the application with details as found in the minutes of the 56th meeting of
the DCZMA. The appellant issued a reply by way of letter dated 23.05.2013 that
the particulars asked for were not necessary for the clearance of application for
CRZ. However, the appellant furnished details in respect of the land ownership of
the subject matter mining lease area to the 1st respondent. At this juncture, it is
pertinent to point out that it is admitted by the appellant that in so far as 29.78 ha,
which is the subject matter mining lease is concerned, the appellant owned 4.46
ha. The 3rd respondent owned 14.77 ha and the balance is owned by other
individual pattadars and some come under Government poromboke land. Thus, it
would be abundantly clear that the appellant while making the application was not
the owner of the entire extent of the subject matter mining lease area, but only a
part of it. It is also admitted by the appellant that the part of the extent belonged to
3rd respondent.
40) It is not in controversy that the 3rd respondent filed a civil suit in O.S.No.
83/2005 before the Sub Court, Tirunelveli with the prayer that the grant of mining
lease should not be made in favour of a 3rd party. The lands which were shown as
belonging to the 3rd respondent in O.S.No. 83/2005 included the part of the land of
the subject mining lease area and the suit came to be decreed. Though an appeal
was preferred therefor, no stay of the decree given by the Sub Court was granted
by the District Court. The 3rd respondent on coming to know that the application
filed by the appellant for CRZ clearance was pending, the 3rd respondent raised
his objections stating that the extent of 29.78 ha of that land was included in the
appellant’s project and the 3rd respondent had not given any consent letter to the
appellant and also the 3rd respondent already obtained CRZ clearance from MoEF
in the year 2006 for some part of their land along with a request of the 3rd
respondent to delete the lands of 3rd respondent from the appellant’s project.
32
Though the same was communicated to the appellant the appellant was not ready
to delete the same. Under the stated circumstances, the DCZMA made an order of
rejection of application made by the appellant, in its 59th meeting held on
10.07.2013. The said rejection is the subject matter of the Appeal No. 97 of 2013
(SZ) herein.
41) The appellant has challenged an order of rejection of the application
made seeking CRZ clearance in respect of the subject mining lease area. The
application was made on the strength of the recommendations made by
EAC/MoEF-I.A. Division in paragraph 2.26 in minutes of the 8th meeting of the
reconstituted EAC for mining projects. The said recommendation made by the 1st
respondent is challenged by the 3rd respondent by way of an application before
this Tribunal and hence, it would be proper to consider the question whether the
grant of recommendations suffers in law and in fact as contended by the 3rd
respondent/applicant before adverting to the contentions put forth in the appeal.
42) The appellant has categorically admitted that when the application was
made in respect of 29.78 ha which is the subject matter mining lease area, the
appellant owned 4.40 ha; 3rd respondent owned 14.77 ha and the balance owned
by other individual pattadars. It is not the case of the appellant that in respect of
the lands owned by the 3rd respondent and others i.e., except the land owned by
the appellant, the appellant had obtained consent of the land owners at any point
of time during the duration of the lease period. Such a case was neither pleaded
nor substantiated by any evidence. On the contrary, the 3rd respondent has raised
his objections stating that he owned specific extent of the land covered in the
application made by the appellant even while he applied for EC. There is evidence
to indicate that he filed a suit in O.S.No.83/2005 before the Sub Court, Tirunelveli
33
that the land belonged to the 3rd respondent should not be considered in favour of
a 3rd party for grant of the mining lease. It is not disputed that the part of the land
in respect of which EC was sought for by the appellant for mining operations was
shown as one of the subject matter land in the said suit. The injunction which was
originally granted in the said suit became final when the suit was decreed. . It is
also contended by the 3rd respondent that no stay of operation of decree was
granted by appellate forum. Thus, it would be quite clear that an injunction
restraining the consideration in favour of third parties for grant of mining lease
continue to be in force. The contentions put forth by the learned counsel for the
appellant that the said suit was in respect of right to property and has nothing to do
either with the grant of EC or with consideration of its application for the CRZ
clearance, though attractive at first sight does stand to the scrutiny of law. What
are all contended by the learned counsel for the appellant is that the requirement
of obtaining consent from the 3rd party land owners for commencement of mining
operations pursuant to the grant of mining lease in respect of 14.84 ha or by virtue
of renewal as in the case of 29.78 ha can arise only immediately prior to
commencement of actual mining operations and not at the time of applying for
renewal. In order to substantiate his contentions, the learned counsel relied on the
rule 22(3) (1) (h) of MCR 1960. It is also contended by the learned counsel for the
appellant that the 3rd respondent cannot be aggrieved by the impugned
recommendations as its rights have been fully protected and the appellant cannot
start mining operation on the lands of 3rd respondent without his consent as this is
made clear in the recommendations, nor it can do so without necessary clearance
of Tamil Nadu Coastal Zone Management Authority (for short ‘TNCZMA). Thus,
the rights of the 3rd respondent are not abridged or interfered with in any manner
and they have been duly protected by the EAC recommendations. Pointing to
34
paragraph 7 in respect of the stages in the prior EC process for new projects in
EIA, 2006, the counsel would submit that in so far as the appraisal is concerned,
on conclusion of the proceedings, the EAC should make categorical
recommendations to the regular authorities either for the grant of prior EC on
stipulated terms and conditions or reject the appraisal and thus the notification
would make it clear that it enables the EAC to make conditional recommendations
as has been done in this case. Thus, there is no scope for insistence of land
owners’ consent at the stage of the EC under EIA Notification, 2006. The EC in
this instant case was granted subject to obtaining of consent from the private patta
land owners before commencing the mining operations. The 3rd respondent was
represented by his Managing Partner during the public hearing proceedings of the
EC and also filed his objections. Thereafter, the appellant submitted the final
EIA/EMP reports to the MoEF on 08.05.2013 after incorporating the issues raised
by the public including the 3rd respondent along with a detailed reply. Based on the
report submitted by the appellant, the MoEF fixed the EC application for
consideration on 27.06.2013 and 28.06.2013. While the appellant’s
representatives made technical presentation before the EAC on the aforesaid
dates, the counsel for the 2nd respondent were also present on 27.06.2013. When
the applications for the appellant were scheduled for consideration, the members
of the EAC informed that lawyers were not required to attend the technical meeting
when only the Project Proponent was expected to complete the presentation of the
project and the counsel for the appellant was informed that they would be called in
only when legal submissions were required during the course of the day. Equally,
when the counsel for the 3rd respondent and Coastal Environment and Ecological
Conservation Committee requested to be heard when the technical presentation
was commenced, they were informed that the respective written objections were
35
already received and they would be heard after the technical session concluded.
But, both the 3rd respondent and the Coastal Environment and Ecological
Conservation Committee were present. Now, the 3rd respondent complains that he
was denied the opportunity of being heard. Thus, the EAC after a thorough
scrutiny of the final EIA and EMP reports which took into account all the terms and
conditions specified in the ToR and after a thorough application of mind, made its
recommendations and thus the 3rd respondent cannot have any grievance to
ventilate either in law or on facts in respect of the recommendations that the
request of the 3rd respondent for a declaration that the recommendation of EAC
was not in accordance with law has to be rejected.
43) Countering the contentions put forth by the appellant’s side, the counsel
for the 3rd respondent would submit that the appellant originally obtained the
mining lease over an extent of 27.8.12 ha for a period from 15.10.1979 to
14.10.1999. But, the appellant was not the owner of the entirety of the land
covered by the lease. Neither there was pleading nor evidence that the appellant
has obtained the consent from the land owners at any point of time during the
period of lease. The lease came to an end on 14.10.1999. When the appellant
made application for renewal of the lease on 16.09.1998, the 3rd respondent was
the owner of the land which was subject to renewal. But the appellant has not
pleaded or averred that he has consent for such renewal. The contention of the
appellant is that he was entitled to renewal even without consent of the owner and
hence he could seek EC for land mining. Even in the year 2000, when the
appellant applied for EC initially, the 3rd respondent raised his objections. In the
meanwhile, the State Government instead of renewal in respect of the full extent of
land sought for by the appellant, granted only in respect of the portion in which the
appellant has title. The same was challenged before the Central Government.
36
Though the same was allowed and remanded, they are all pending consideration.
While the matter stood thus, the EAC examined the appellant’s application for EC
at its meeting held on 26.02.2011. The MoEF issued ToR along with a number of
conditions of which 2, 3 and 4 are relevant for the purpose of this case. Condition
No. 3 specifically directed the appellant to produce evidence of lawful possession
of lease properties over which he was seeking clearance. But, the same was not
produced. Even in the public hearing on 13. 5 .2013, the 3rd respondent raised
objections. During the meeting of the EAC, the 3rd respondent was not given an
opportunity. But the minutes of the meeting of EAC dated 26.06.2013 would
disclose that the objections of the 3rd respondent were available. But, they were
never considered. On the contrary, the EAC made the recommendations giving a
go-bye to the earlier condition imposed in the ToR. The learned counsel
emphatically stressing that the EAC should not have given the recommendations
for the grant of EC without the production of evidence of the consent of the 3rd
respondent which was a condition precedent and thus the recommendations
would suffer and got to be declined. In order to substantiate his contentions, the
learned counsel took the Tribunal to the relevant part of the ToR, the
recommendations made by EAC and also the different rules in MCR, 1960.
44) The counsel placed reliance on (i) W.P.No. 3091 of 2013, S. Raman vs.
Union of India, (ii) Pallava Granites vs. State of Tamil Nadu, AIR 1997 1081. It
could be seen from a communication addressed by MoEF to the appellant/Indian
Rare Earths Ltd., dated 16.05.2011 that it was in response to the application made
by the appellant along with a copy of prefeasibility report to obtain a ToR to
undertake a EIA study for the purpose of obtaining EC under EIA Notificiation,
2006 in respect of mining of rare minerals in CRZ area located at Manavalakurichi,
Midalam, Keezhmidalam villages in Kanyakumari District. It is also seen from the
37
communication dated 16.05.2011 of the MoEF addressed to the appellant that the
proposal for renewal of lease mine which fell due in October 1999 and addition of
another lease area.
45) It is admitted by the parties that the renewal application in respect of the
EC was sought for also included the subject matter mining lease area. While
prescribing the ToR, the MoEF made the conditions of which the following pertain
to the subject:
2. All the issues raised in the petition of the Coastal Environment and
Ecological Conservation Committee should be addressed in the
EIA report and point wise details and how it has been complied
with/addressed should be given.
3. A copy of the document in support of the fact that the proponent is
the rightful lessee of the mine should be given.
4. All documents including approved mine plan, EIA and public
hearing should be compatible with one another in terms of the
mine lease area, production levels, waste generation and its
management and mining technology and should in the name of
the lessee.
46) It is pertinent to point out that the document in support of the fact that
the Project Proponent, namely the appellant was the rightful lessee of the mine
should be given. One would reasonably hope that such a condition imposed by
the MoEF in the ToR was meaningful, relevant, and significant. It is not only
reasonable, but the production of a document to substantiate that the Project
38
Proponent is the rightful lessee of the mine was a condition precedent. If not such
a condition is imposed, anybody for that matter without any right or even a
trespasser, who is not in lawful possession can make an application and ask for
EC for mining in other man’s land. Pursuant to said ToR, a public hearing was
conducted on 13.05.2013. The representative of the 3rd respondent who was
present at the public hearing raised the objection that the appellant was not the
owner in respect of the entire extent, but the 3rd respondent had ownership in
respect of a part of the land. The same was also recorded in the minutes of the
public hearing. Naturally, at the time of consideration whether to grant EC or not
by MoEF, the entire proceedings of the public hearing should have been placed.
In its reconstructed Committee of EAC for environmental appraisal of the mining
projects during 26th to 28th June, 2013, the subject matter was taken for
consideration. Paragraph 2.26 reads as follows:
“ ****
The proposal was considered by EAC in its meeting held during 23rd-
25th February 2011 to determine ToR for undertaking detailed EIA
study. The TORs were issued by the MoEF vide letter No. J-
11015/62/2011-IA.II(M), dated 16th May 2011. While granting TOR, it
was informed to the Committee that the proposal is a Category B
project; however, it was decided to consider the proposal in MoEF
because of adjoining mining leases of the same Project Proponent
being dealt with at the Centre. The total mine lease area is 44.6212 ha,
spread over the said two leases of 29.7812 ha (existing lease) and
14.84 ha (fresh lease). No forest land is involved. The total production
from both the leases put together will be 0.4 million TPA of beach sand
39
mineral (Iimonite, Rutile, Zircon, Monozite and Garnet). The area is
located in CRZ.
******
The Public Hearing was conducted at Revenue Divisional Office.
Padmanabhapuram, Kanyakumari District on 22.03.2013. The PH was
chaired by Sri Palanisamy, District Revenue Officer (ADM rank). The
issues raised during PH were discussed by the Committee specifically
with reference to the objections raised, demands of the public, radiation
hazards etc., The proponent informed that they have been undertaking
CSR and other welfare activities in and around the existing ML Areas
since inception and 2% to 3% of the net profit is always allocated for
these activities. In addition to the above, proponent reported that the
fisherman village society members of Kurumapanai, Midalam and Mel
Midalam will be engaged for collection of replenished mineral sand from
beach areas for which a budget of Rs. 100 lakh per annum will be
allocated thereby substantially improving their living standards and
economic conditions. As per the villagers’ requirements, it was informed
by the PP that they would take care of local employment, health issues
etc., as per the Government guidelines and directions. These have
been incorporated in the Project Action Plan with budgetary provisions.
Proponent informed that majority of the public who attended the Public
Hearing supported the IREL mining and mineral separation activities.
The objections raised during PH by an organisation named Coastal
Environment and Ecological Conservation Committee and M/s. V.V.
Minerals were addressed by PP. It was informed that these issues were
40
mostly related to land disputes (ML disputes and surface right disputes).
The proceedings of the PH, reply to issues raised by the Coastal
Environment and Ecological Conservation Committee and reply to the
written objections are available in the EIA/EMP document. It was
ensured that the mining over the private patta lands, which are not
owned by M/s. IREL, mining will be carried out only after obtaining the
consents from the concerned land owners as per the provisions of the
MCR, 1960 and MMDR Act 1957. Compensation for such lands will be
paid to the land owners as per the agreed terms and conditions prior to
mining. After mining, the mined out lands will be backfilled and handed
over to the concerned land owners. “
***
47) From the very reading of the above, it would be quite clear that the
representative of the 3rd respondent along with his lawyer and also the President of
Coastal Environment and Ecological Conservation Committee were present to brief
the Committee on the proposal of the appellant, but they were not heard. The
counsel for the appellant would submit that when the Committee took up the matter
in the evening hours, while the representative of the appellant was present, the
representatives of the 3rd respondent and Coastal Environment and Ecological
Conservation Committee were not available and hence, the EAC took a decision
after hearing the submissions made by the Project Proponent. Not only the
representative of the 3rd respondent was never heard, but also there is nothing to
indicate that the objections raised by the 3rd respondent all along in the past which
was placed before the Sub Court, Tirunelveli by way of a suit, by way of objection
41
before the public hearing, and by way of objection before EAC at the time of the
meeting were considered.
48) The EAC was satisfied by imposing a condition that in private patta
lands which are not owned by M/s. IREL, the mining activity will be carried out only
after obtaining the consent from the concerned land owners as per MCR, 1960 and
MMDA, 1957. The reading of the said condition would clearly indicate the fact that
the MoEF in its meeting never considered the question of the appellant’s
possession, but only the ownership in respect of the lands, which in itself is
inconsistent to the 3rd condition found in the ToR which needs the submission of a
copy of the documents in support of the fact that the Project Proponent is the
rightful lessee of the mine. It is a matter of surprise to note that EAC before passing
the resolution for recommendation did not take into consideration the lawful
possession criteria, but also it has given up the original condition No. 3 imposed by
it in the ToR. Even if it is believed that it would be a compliance of MCR, and the
consent was not available at the time of renewal, but it would be sufficient if the
consent was available only at the time of mining, it would not satisfy law as
envisaged under relevant statutory provisions.
49) It would be apt and appropriate to reproduce the relevant statutory
provisions as per MCR, 1960 in this regard.
“22. Application for granting mining lease: ***
(3)(i) **
(a)***
(d)***
42
(e)***
(g)***
(h) a statement in writing that the applicant has, where the land is not
owned by him, obtained surface rights over the area or has obtained
consent of the owner for starting mining operations.
Provided that no such statement shall be necessary where the land is
owned by the Government.
Provided further that such consent of the owner for starting mining
operations in the area or part thereof may be furnished after execution
of the lease deed but before entry into the said area.
Provided also that no further consent would be required in the case of
renewal where consent has already been obtained during the grant of
the lease.
***
24A. Renewal of mining lease: An application for the renewal of a
mining lease shall be made to the State Government in Form J, at least
twelve months before the date on which the lease is due to expire,
through such officer or authority as the State Government may specify
in this behalf.
***
43
Chapter X
Form J (To be submitted in duplicate)
Application for renewal of mining lease
(see rule 24 A)
*** *** *** (xA) (a): Does the applicant continue to have surface rights over the area of the land for which he requires renewal of the mining lease.
(b): If not, has he obtained the consent of the owner and occupier for undertaking mining operations. If so, the consent of owner and occupier of the land obtained in writing.
*** *** 50) Rule 22 (3) deals with the documents to be filed along with application
for a mining lease. One of the documents to be filed as set out in sub rule (h) is a
statement in writing that the applicant has obtained consent from the owners for
starting mining operations. Where a land is not owned by the applicant applying for
a mining lease, no doubt, the consent from the land owner can be obtained after
the grant of lease, but before starting mining operations. The rule makes it clear
that a statement that the applicant has obtained surface rights over the area and
the consent obtained from the land owners should be filed along with the
application. This would clearly indicate that the applicant should have obtained
surface rights or is not required in the case of renewal provided that consent has
already been obtained during the grant of lease. A reading of rule 24 A makes is
mandatory that an application of renewal of mining lease shall be made in Form J.
44
51) Form J of MCR, 1960 makes it obligatory that the land owner’s consent
must accompany the renewal application. The learned counsel for the appellant,
pointing to the above rules would submit that the consent of the owner need to be
filed only if such a consent was available and if not available, it could be filed even
before the commencement of mining operations. This contention cannot be
countenanced for the simple reason that if that is allowed, any one neither with
ownership nor with lawful possession or without consent can get a renewal.- .By
refusing to file the necessary consent. A harmonious construction of rule 22 (3)
and 24 A of MCR, 1960 would lead only the conclusion acceptable and reasonable
that the consent of the land owner is sine quo non for seeking renewal of the
mining lease. The above legal position got affirmation by the High Court of Madras
in the judgement dated 29.09.2010 in W.P.No. 3091 of 2003 in the matter of S.
Ramasamy vs. Union of India wherein it has been held as follows:
“17.1. In order to appreciate the interpretation of the rule 22(3)(h) and
rule 24A of the MCR,1960, it is worth to extract the above said
provisions. (omitted).
17.2. Rule 22 provides for an application for grant of a mining lease. It
also provides for an application to be made in specific Forms while
applying grant of mining lease and also for the grant of renewal of
mining lease. For the grant of mining a fresh lease, Form I is
prescribed. Similarly, for grant of a renewal of a mining lease Form J is
prescribed under rule 24A of the MCR, 1960. Rule 22 also speaks
about the requirements to be accompanied in the application for the
grant of renewal. The requirements are also applicable to the fresh
lease as well as the renewal. Rule 22 (3) (h) mandates that a consent is
required from the land owner. Therefore, such consent is mandatory
under the rules. The proviso to rule 22 (3) (h) speaks about not
requiring further consent when the consent has already been obtained
during the grant of lease. In other words, when there is a consent
already obtained during the grant of lease which continues to be in
45
force, then no further consent is required while seeking renewal for the
reason the said consent is also covering the period of renewal.
17.3. Therefore, the rule prescribes that when there is a valid and
proper consent covering the period of renewal as well, the procedural
formality of getting a further consent once again for the renewal is not
required. This position has been made clear by a perusal of Form J
which is applicable to the renewal. Form J specifically provides as
follows:
“( xA) (a) Does the applicant continue to have surface rights over the area of the land for which he requires renewal of the mining lease.
(a) If not, has he obtained the consent of the owner and
occupier for undertaking mining operations. If so, the consent of owner and occupier of the land obtained in writing.”
17.4. The above said prescription would make it very clear that
consent is not required for renewal only when the same has already
been given during the lease period covering the period of renewal
sought for. Therefore, a combined reading of rule 22 (3) (h) and rule
24 A read with Form J makes it clear that in a case where the
consent expires a fresh consent has to be obtained. Further, the 2nd
proviso to rule 22 (3) (h) makes it very clear that without a consent
the lessee cannot indulge in quarrying operation. Hence, a right to
quarry mandates a valid consent which is a pre-requisite and a
condition precedent.”
52) The Tribunal is able to see sufficient force in the contentions put forth
by the learned counsel for the 3rd respondent that the 3rd respondent is admittedly
the owner of the part of the land who, no doubt has surface right and preferential
mineral right and only in view of that reason, the consent of the 3rd respondent
should be given much importance. This contention gets strengthened by a
46
decision of the Apex Court in 1997 SC 1081 in the matter of Pallava Granites vs.
State of Tamil Nadu whereby it was held as follows:
“We find no force in the contention. The right to excavate the mines
from a land of a private owner is based on the agreement; unless the
lessor gives his consent, no lessee has a right to enter upon his land
and carry on mining operations. The right to grant mining lease to
excavate the mines beneath the surface is subject to the agreement of
the land owners. Therefore, with a view to ensure that there will not be
any obstruction in the working of the mining lease and also for the
peaceful operation of the excavation of mines, insistence on the
consent of the landlord is necessary. Therefore, we do not find any
illegality in the view taken by the High Court warranting interference.”
53) The Apex Court had an occasion to consider the nature of sub surface
right on the land owner and has recognised the same as absolute in its report AIR
2013 SC 3215 in the matter of Thressiama Jacob vs. Geologist and has held as
follows:
“57. We are of the opinion that there is nothing in the law which
declares that all mineral wealth sub-soil rights vest in the State, on the
other hand, the ownership of sub-soil/mineral wealth should normally
follow the ownership of the land, unless the owner of the land is
deprived of the same by some valid process. In the instant case, no
such deprivation is brought to our notice and therefore, we hold that the
IRELs are the proprietors of the minerals obtaining in their lands. We
make it clear that we are not making any declaration regarding their
liability to pay royalty to the State as that issue stands referred to a
larger Bench.”
54) From the decisions cited above it is very clear that the consent of the
land owner is a pre-requisite for applying for renewal and if not filed along with the
application, the said application is liable to be rejected.
47
55) In this connection, it would be very relevant and more useful to refer a
decision of the Division Bench of the Hon’ble High Court of Andhra Pradesh in the
matter of Andhra Pradesh Mineral Development Corporation, Hyderabad vs. M/s.
RLP Granite Pvt. Ltd., reported in AIR 2005, A.P. 298, where it has been held as
follows:
“35. The Mineral Concession Rules, 1960 also provide the requirement
of obtaining consent of the land owner and the same to be made
available along with the application seeking rant of mining lease but the
third proviso to rule 22 (3) (i) (h) of the Mineral Concession Rules, 1960
specifically carves out an exception that in case of renewal no further
consent would be required where consent has already been obtained at
the time of grant of lease, no further is required to be obtained in case
of renewal. …
36. In Pallava Granites Industrial India (P) Ltd., (AIR 1997 SC 2098)
(supra) the Supreme Court while repelling the contention that there was
no need to obtain the consent of the owner of the land before grant of
mining lease under the provisions of the said rules observed:
“The right to excavate the mines from the land of private owner is
based on the agreement; unless the lessor gives his consent, no lessee
has a right to enter upon his land and carry on mining operations. The
right to grant mining lease to excavate the mines beneath the surface is
subject to the agreement of the landowners. Therefore, with a view to
ensure that there will not be any obstruction in the working of the mining
lease and also for the peaceful operation of the excavation of the
mines, insistence on the consent of the land is necessary.
48
37. The right to grant quarry lease to excavate the minerals beneath the
surface of the land is subject to agreement of the owners of the land. In
the absence of consent, no quarry lease could be granted in favour of
any individual.
38. In State of Tamil Nadu V. M.P.P. Kavery Chetti, (1995) 2 SCC 402:
(AIR 1995 SC 858), the Supreme Court while considering the
Constitutional validity of Rule 19-A of the Tamil Nadu Mineral
Concession Rules, 1959, as amended, which did not provide for
consent of the owner of the land as a condition for grant of quarry
lease,……
39. It is a case where the Rule itself did not provide the requirement of
the consent of the owner of the surface rights or occupier of the land. In
the case on hand, the Rules mandate the consent of the owner and the
occupier of the land as a condition precedent for grant of a quarry
lease.
40. Section 24-A (1) of the Act upon which reliance was placed by the
learned counsel for the petitioners provides that “on the issue of a
reconnaissance permit, prospecting license or mining lease under the
Act and the Rules made thereunder, it shall be lawful for the holder of
such permit, license or lease, his agents or servants or workmen to
enter the lands over which permit, lease or license had been granted at
all times during its currency and carry out all such operations as may be
prescribed.” Its meaning is clear and simple that once the prospecting
license or mining lease is issued under the Act and the Rules made
thereunder, the holder of license or mining lease is entitled to enter into
49
the lands over which such permit, lease, or license has been granted, at
all times, during its currency and carry out all such operations as may
be prescribed. It means that after the grant of license or the lease, as
the case may be, no further consent of the owner of the land or the
occupier is required to be obtained for entering into the land so as to
undertake quarry operations, since the grant of license or lease, as the
case may be, is based on prior consent given by the owners of the land.
The consent of the owner of the land enabling the grantee to enter into
the land and carry on the quarry operations is implicit in the grant of
lease or license itself. The provision deal with rights of the holder of
permit, license or lease to enter the lands over which such permit, lease
or licence has been granted and enables such holder to carry on the
quarry operations. It deals with post-grant situation.
41. Section 24-A (1), in our considered opinion, in no manner deals with
the pre-condition of a requirement of a consent from the land owner for
grant of quarry lease for granite, particularly in cases, where such
requirement is made mandatory by the Rules framed in exercise of the
Rule making power under the provisions of the Act.”
56) In order to substantiate his contention that consent of the owner of the
land is not necessary before grant of EC and it can be made available before
commencing the mining operations, the learned counsel for the appellant placed a
reliance on the decision of the Hon’ble Apex Court reported in 1995(2)SCC 401-
State of Tamil Nadu vs. Kaveri Chetty. The Supreme Court in the said case dealt
with the validity of rule 19-A of the Tamil Nadu Minor Mineral Concession Rules,
1959. The observation made by the Apex Court in respect of the consent of the
owner or occupier is required only when the holder of the lease desires entry into
50
any building or enclosed court, or garden, has to be understood in the context of
the Tamil Nadu Minor Mineral Concession Rules, 1959. In the instant case, it is
not governed by the provisions of Tamil Nadu Minor Mineral Concession Rules,
1959, because the mineral in question i.e, garnet sand etc., is governed by the
provisions of the MMDR, 1957 and rules made thereunder and hence, the decision
relied on by the appellant cannot have any application to the present case.
57) The provisions make it clear that in a given case where consent was not
obtained, it can be produced before the commencement of mining operations.
Even in that case, a statement of the applicant, if he is not the owner of the land
has to be filed. Hence, in a given case, if the application is made by a person who
is not the owner of the land, he has to make a statement for not producing the
consent at the time of making the application and obtain the consent before the
commencement of mining operations. Hence, the rule mandated the production of
statement under what circumstances the applicant could not produce the consent
of the land owners at that time. In the instant case, it is not the case of the
appellant that he ever filed the statement along with the application nor there is
any material available to indicate that such a statement was made. The rule
envisages only a situation where consent is not obtained and definitely not a
situation where there is a refusal to give consent by the owners of the land. It
makes a vast difference between ‘consent not obtained’ and ‘consent refused to
be given’. Hence, the intention of the Legislature is made explicit that in a given
case, when consent is not obtained, it should accompany a statement by the
applicant. The decisions relied on by the appellant can be applied to those cases
where consent was not obtained, but not to the case where consent was refused
by the owner of the land which is covered under the subject matter mining lease
area. It remains to be stated in the instance case that the 3rd respondent not only
refused to give consent but also the appellant has categorically admitted that part
of the land which is the subject matter mining lease area extent is owned by the 3rd
respondent.
51
58) Assuming that though the EAC was under the impression that the
consent of the owner of the land, even if not available at the time of renewal, it
would be sufficient to produce the same before commencement of the mining
activities it would not only untenable, but also would satisfy law as envisaged in
the statutory provisions. So long as the applicant has not given a statement as
contemplated under the above rule, the application for EC is inchoate and
defective which does not require consideration by EAC. On that ground the
application itself should have been rejected. In respect of item No. 2, the appellant
could not produce any document in respect of ownership or possession since he
had no documents. Admittedly, the part of the lands is owned by third parties
including the 3rd respondent.
59) From all the above, it can be safely concluded that the
recommendations made by the EAC of the MoEF in paragraph 2.26 of the
Minutes of Eighth Meeting of the Reconstituted Committee of EAC of Mining
Projects Constituted under EIA Notification, 2006 in favour of the appellant suffers
for the following reasons:
(a) Taking into consideration the application made by the appellant
without consent of the owner or a statement that he has obtained
surface rights over the land.
(b) By non production of the documents in support of the fact that the
Project Proponent is the rightful lessee of the subject matter
mining lease area extent despite the fact that a specific condition
was imposed in the ToR.
(c) Non consideration of the objections raised by the 3rd respondent
who is admittedly the owner of the part of the land in the subject
matter mining lease area extent.
52
(d) Recommending the EC in favour of the appellant with a condition
that the private patta lands which were not owned by the
appellant, mining should be commenced only after obtaining
consent from the land owners which is against legal mandate.
60) In view of all the above, the Tribunal has to necessarily agree with the
case of the applicant to declare that the EAC is not entitled to recommend for the
grant of EC in the Minutes of Eighth Meeting of the Reconstituted Committee of
EAC of Mining Projects Constituted under EIA Notification, 2006 in respect of the
mining project, in violation of MMDR, Act 1957 and MCR, 1960 and consequently
to set aside the EC granted by the MoEF to the 2nd respondent in the Eighth
meeting of the Reconstituted Committee of Experts Appraisal Committee for
Environmental Appraisal of Mining Projects under EIA Notification, 2006 as sought
for in the Application.
61) In so far as the Appeal No 97 of 2013 (SZ) is concerned, a challenge is
made to an order of rejection of the CRZ clearance of the appellant dated
09.02.2013 in the 59th meeting of the 2nd respondent/DCZMA dated 10.07.2013.
62) Admittedly, the 1st respondent/ District Environmental Engineer, Tamil
Nadu Pollution Control Board, Kanyakumari District sent a letter dated 19.07.2013
which reflected the order of rejection of DCZMA on the following reasons:
(a) The appellant had not furnished the consent of the third party land
owners for commencement of the mining operations.
(b). CRZ clearance had already been granted to the 3rd respondent for
some the lands in the 29.78 ha extent.
53
(c) Land dispute was pending in respect some of the lands in 29.78
ha extent, at the instance of the 3rd respondent.
(d) The appellant has no mining rights as the Sub Court, Tirunelveli
had issued an injunction restraining the Government from granting
mining lease in respect of the 3rd respondent’s land to any third
party.
(e). The appellant had not excluded those survey numbers in respect
of which the above qualifications were applicable.
63) The prime contention put forth by the learned counsel for the appellant
is that the 2nd respondent/DCZMA has travelled beyond its lawful jurisdiction and
competence of granting clearance under CRZ Notification since the rejection of the
application of the appellant on the basis of the issues which were completely
irrelevant to CRZ Notification, 2011 and when germane only to the MMDR Act,
1957 and MCR, 1960. The requirement of obtaining consent from the 3rd party
land owners for commencement of mining operations pursuant to the grant of
mining lease can arise only immediately prior to the commencement of actual
mining operation and not at the time of applying for renewal
64) Advancing the arguments on behalf of the 3rd respondent, the learned
counsel would submit that the TNCZMA is the authority charged with enforcing the
provisions of CRZ Notification, 1991 as amended. Paragraph 3 of the CRZ
Notification sets out that all the activities mentioned thereby are prohibited
activities in the CRZ area. Paragraph 3 (x) of the CRZ Notification, however,
carves out an exception for the mining of rare mineral which are not found outside
the CRZ areas. Therefore, the TNCZMA when approached for
clearance/recommendation under CRZN by a Project Proponent for the purpose of
carrying on mining activity in CRZ area is entitled to satisfy itself whether the
54
activity is a bona fide mining activity, whether the mining is for rare minerals and
whether the rare minerals cannot be found outside CRZ areas. Of these three,
when the TNCZMA checks if the Project Proponent is carrying on mining activity it
goes without saying that the TNCZMA is entitled to satisfy itself that the proposed
mining activity is a lawful activity unless the TNCZMA satisfies itself of the above,
it cannot come to the conclusion that the Project Proponent is within the exception
engrafted in paragraph 3 (10) of the CRZ. Therefore, the contention of the
appellant is untenable in law and order of rejection of the application by the
TNCZMA has to be sustained.
65) The appellant has assailed that the 2nd respondent had gone beyond
his jurisdiction and competence of granting a recommendation under CRZ
Notification, 2011. On the contrary, it is contend by the respondents’ side that the
rejection of the application seeking CRZ clearance was thoroughly within their
jurisdiction
66) Admittedly, the application made by the appellant for CRZ clearance
was rejected on the grounds that in some of the land in 29.78 ha extent which is
the subject matter mining lease area extent, the appellant had not furnished
consent of the 3rd party land owners for commencing the mining operations, that
the clearance had already been granted to the 3rd respondent, that land dispute
was pending in respect of some of the lands in 29.78 ha extent at the instance of
the 3rd respondent, but the appellant cannot be allowed to mine since an order of
injunction granted by the Sub Court, Tirunelveli restraining the Government for
granting mining lease in respect of the land owned by the 3rd respondent to any
third party and also that the appellant had not excluded those survey numbers in
respect of which the above qualifications were applicable.
67) The following provisions of CRZ Notification, 2011 are relevant for the
purpose of this appeal:
55
“... the Central Government hereby declares the following areas as CRZ
and imposes with effect from the date of the notification the following
restrictions on the setting up and expansion of industries, operations or
processes and the like in the CRZ,-
(i) the land area from High Tide Line (hereinafter referred to as the HTL)
to 500 mts on the landward side along the sea front.
(ii) CRZ shall apply to the land area between HTL to 100 mts or width of
the creek
whichever is less on the landward side along the tidal influenced water
bodies that are connected to the sea and the distance up to which
development along such tidal
influenced water bodies is to be regulated shall be governed by the
distance up to which the tidal effects are experienced which shall be
determined based on salinity concentration of 5 parts per thousand
(ppt) measured during the driest period of the year and distance up to
which tidal effects are experienced shall be clearly identified and
demarcated accordingly in the Coastal Zone Management Plans
(hereinafter referred to as the CZMPs).
Explanation.- For the purposes of this sub-paragraph the expression
tidal influenced water bodies means the water bodies influenced by tidal
effects from sea, in the bays, estuaries, rivers, creeks, backwaters,
lagoons, ponds connected to the sea or creeks and the like.
56
(iii) the land area falling between the hazard line and 500 mts from HTL
on the landward side, in case of seafront and between the hazard line
and 100 mts line in case of tidal influenced water body the word ‘hazard
line’ denotes the line demarcated by Ministry of Environment and
Forests (hereinafter referred to as the MoEF) through the Survey of
India (hereinafter referred to as the SoI) taking into account tides,
waves, sea level rise and shoreline changes.
(iv) land area between HTL and Low Tide Line (hereinafter referred to
as the LTL) which will be termed as the intertidal zone.
(v) the water and the bed area between the LTL to the territorial water
limit (12 Nm) in case of sea and the water and the bed area between
LTL at the bank to the LTL on the opposite side of the bank, of tidal
influenced water bodies.
2. For the purposes of this notification, the HTL means the line on the
land up to which the highest water line reaches during the spring tide
and shall be demarcated uniformly in all parts of the country by the
demarcating authority(s) so authorized by the MoEF in accordance with
the general guidelines issued at Annexure-I. HTL shall be demarcated
within one year from the date of issue of this notification.
3. Prohibited activities within CRZ,- The following are declared as
prohibited activities within the CRZ,-
i) Setting up of new industries and expansion of existing industries
except,-
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(a) those directly related to waterfront or directly needing foreshore
facilities;
Explanation: The expression “foreshore facilities” means those activities
permissible under this notification and they require waterfront for their
operations such as ports and harbours, jetties, quays, wharves, erosion
control measures, breakwaters, pipelines, lighthouses, navigational
safety facilities, coastal police stations and the like.; for implementation
of ameliorative and restorative measures in relation to environment as
may be stipulated by MoEF.
Provided that facilities for receipt and storage of fertilizers and raw
materialsrequired for manufacture of fertilizers like ammonia,
phosphoric acid, sulphur, sulphuric acid, nitric acid and the like, shall
be permitted within the said zone in the areas not classified as CRZ-I
****
(x). Mining of sand, rocks and other sub-strata materials except,-
(a) those rare minerals not available outside the CRZ area,
(b) exploration and exploitation of Oil and Natural Gas.
4. Regulation of permissible activities in CRZ area.- The following
activities shall be regulated except those prohibited in para 3 above,-
(1)(a), clearance shall be given for any activity within the CRZ only if it
requires water front and foreshore facilities;
58
(b) for those projects which are listed under this notification and also
attract EIA notification, 2006 (S.O.1533 (E), dated the 14th September,
2006), for such projects clearance under EIA notification only shall be
required subject to being recommended by the concerned State or
Union territory Coastal Zone Management Authority (hereinafter
referred to as the CZMA).
68) After looking into the above rules and also hearing the submissions
made by the counsel on either side, the Tribunal is of the considered opinion that
the order of rejection has to be sustained for more reasons than one. The
TNCZMA is the authority charged with enforcing the provisions of the CRZ
Notification. As could be seen, paragraph 4 of the CRZ Notification, 2011 stated
supra envisages regulation of permissible activity in CRZ and also except those
activities prohibited in paragraph 3, the following activities mentioned in paragraph
4 should be regulated.
(i) Clearance shall be given for any activity within the CRZ only if it
requires water front and foreshore facilities; and.
(ii) If the projects are listed under CRZ Notification, 2011 and also
attracts EIA Notification, 2006 for such projects clearance under
EIA Notification only shall be required that it should be subject to
being recommended by the concerned State Government/Union
Territories.
59
69) A reading of the above in respect of the projects which require clearance
under CRZ Notification, 2011 and also attracting EIA Notification, 2006, for those
projects EC under EIA Notification, 2006 would be sufficient. But, it would be
subject to recommendation of the concerned SCZMA. In the instant case, the
MoEF granted EC in favour of the appellant and after obtaining so the appellant
applied for CRZ clearance which was rejected on the above grounds. The
rejection of application was made by the DCZMA. A perusal of the impugned order
would indicate the Committee of DCZMA was headed by the District Collector who
is as well the Revenue Head of the District. What is required under the above
provision is a recommendation to be made by the CZMA. The legislature in its
wisdom has employed the word ‘recommended’ and not ‘forwarded’. The word
‘recommendation’ by the CZMA would certainly have its significance. The act of
recommendation cannot be done without being satisfied in respect of the proposed
mining activity. If the contention of the appellant has to be accepted it cannot look
into the necessary aspects which are to be satisfied before making a
recommendation. The basic requirement for recommendation by the authority is
the satisfaction in respect of the requisites regarding the aspects in respect of a
subject matter.
70. Hence, it goes without saying that the CZMA should satisfy itself that the
proposed mining activity was a lawful mining activity. In the instant case, while
rejecting the application, the DCZMA inter alia has pointed out that the CRZ
clearance was already given to the 3rd respondent and also other reasons. The
appellant while sought CRZ clearance in respect of 3 items, admittedly has
produced necessary documents from the owners of private patta lands in respect
of item Nos. 1 and 3 only. But, the appellant did not do so in the case of item No. 2
60
which is the subject matter mining lease area. It is not as if, the DCZMA rejected
the application merely on the objection raised by the 3rd respondent. The authority
requested the appellant to produce the necessary documents stating the
objections raised, the appellant gave a reply stating the production of documents
was not necessary. The production of documents in respect of item Nos. 1 and 3
would be only indicative of the fact that the appellant was conscious that before
making the recommendation the authority should be satisfied that the mining
activity proposed to be carried out on the land which was in lawful possession. The
authority has even required the appellant to delete the land of the 3rd respondent
to which course the appellant was not amenable, but was adamant to pursue his
application as it was. Being a law enforcing authority, the DCZMA was perfectly
correct in rejecting the application since the appellants’ proposed mining activity in
the land of 3rd respondent in respect of which objection was raised and also
injunction was in force cannot be termed as lawful. Having failed to satisfy the
DCZMA with necessary legal requirements as stated above, the appellant cannot
expect the authority to give its recommendations mechanically and in perfunctory
manner. Hence, the contentions put forth by the learned counsel for the appellant
have got to be rejected as untenable and order of rejection by DCZMA has to be
sustained. Apart from the above, the request of the appellant to set aside the order
of rejection of the appellant’s CRZ clearance application Ref: IRELMK/Res/CRZ-
44.6212/2012-13/887 dated 09.02.2013 as contained in the minutes of the 59th
meeting of the 2nd respondent/DCZMA, Kanyakumari District held on 10th July
2013 and communicated to the appellant vide the first respondent/the
District Environmental Engineer, Kanyakumari, of the Tamil Nadu
61
Pollution Control Board letter No. F-NGL-CRZ 01(161)/13, dated 19.03.2013 has
to be rejected since the application filed by the 3rd respondent is allowed.
Appeal No. 97 of 2013 (SZ) :
In the result, the Appeal No. 97 of 2013 (SZ) is dismissed leaving the parties
to bear their cost.
Application No. 419 of 2013 (SZ):
The Application No. 419 of 2013 (SZ) is allowed granting a declaration that
the EAC is not entitled to recommend the grant of EC in respect of a mining
project in violation of MMDR Act, 1957 and MCR, 1960 to wit the requirement set
out in paragraph (x) of Form J of the MCR, 1960 and consequentially the
recommendation made by EAC as in paragraph 2-20 of the 8th Meeting of the
Reconstituted Committee of the EAC for Environmental Appraisal of mining
projects constituted under the EIA Notification, 2006 is set aside.
The parties have to bear the respective cost.
(Justice M. Chockalingam)
Judicial Member
Prof. Dr. R. Nagendran
Expert Member
Chennai
24th February 2014.
.
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