Madras HC affirms ban on Sand Mining and Quarrying in Tamil Nadu

The Madurai Bench of the Madras High Court has dismissed the state’s appeal against its order directing that all sand mining and quarrying activities in the state be wound up within six months..The order was affirmed by a Division Bench of Justices K Kalyanasundaram and T Krishnavalli..In November last year, Justice R Mahadevan had issued the impugned direction, while considering a plea against state restriction on transport of silica sand, that had been imported by the petitioner from Malaysia..The state adopted the stance that it was well within its powers to do so under state laws, namely the Tamil Nadu Minor Mineral Concession Rules, 1959 and the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011..The petitioners, however, pointed out that the import of sand did not fall within the purview of these laws, and that they had already complied with the legal requirements under the Central laws operating in the field..While disposing off the writ petition in favour of the petitioner, the Court also issued a series of directions against illegal mining and sand quarrying within the state. Inter alia, the Court had also directed that,.“The State shall stop all sand mining/quarrying activities in the State of the Tamil Nadu within six months from today and shall not open any new sand quarries/mines in future.”.In an order pronounced on Friday, the Court dismissed the appeal preferred by the state against the single judge order after considering three primary questions..(1) Whether the writ petitioner is liable to register and seek permits for storage, transportation and sale of imported sand from outside india as per the MMDR Act, 1957, TNMMR 1959 and Tamil Nadu Prevention of Illegal Mining, Transportation and storage of Minerals and Mineral Dealers Rules 2011?.The Court noted that the single judge had carefully scrutinized all the relevant legal provisions to come to the conclusion that the import of sand did not fall within the purview of the said state laws. The state had no power to prohibit the import of sand. Agreeing with the single judge on the first query, the Division Bench held,.“Therefore, under the above facts and circumstances, this Court finds that the existing Act and Rules are applicable only to sand and minerals quarried in India and the Learned Single Judge had rightly rejected the contentions of the appellants and held that the appellants cannot rely upon the existing provisions to insist the respondents / writ petitioners to obtain permits for storage and transportation of Imported Sands and the appeal on this question fails.”.(2) Whether the directions issued by the writ court exercising its powers under Article 226 of the Constitution of India needs interference?.The state had argued that the direction of the learned single judge was in the nature of legislating laws, which cannot be issued. Such action would amount to transgression into the powers of Legislature and make the separation of powers redundant. It was further contended that such general direction in the public interest could be issued only by a Division Bench and not by a single judge..The Court, however, dismissed these contentions, holding that the Constitutional powers vested with the judges, including a single judge, under Article 226, was wide enough to issue the said instructions, particularly given the rampant breach of existing laws..The Court observed that despite its frequent intervention, the state had not been able to curb illegal mining..“The State of Tamil Nadu has a long history of illegal mining. So far umpteen number of cases have been filed before this Court for the release of vehicle involved in illegal mining and transportation. It is not in dispute that the state has been unsuccessful in curbing the illegal mining.”.The Court has therefore gone on to hold,.“…this Court is of the view that the directions are not legislative directions but only directions issued for non-compliance of statutory provisions and for failure to safeguard the environment and the ecology, which in the opinion of this Court, is duty enshrined on the High Court under Article 226 of the constitution of India. .Further, when there is an alternate source of sand, which is permissible in law, this Court is of the view that the directions cannot be termed as beyond the scope of the writ petition.”.(3) Whether this Court has a legal obligation/mandate to preserve ecology, i.e Sand, Forests, Water, Air, etc for the present and for future generations as guaranteed under Article 21 of the Constitution of India by issuing appropriate directions?.The Court observed that High Courts, which have wide powers to safeguard the Constitution under Article 226, have often been called to step in to to protect the environment by curbing mining activity, whenever the state has failed in its duty under Article 48A and 51A..The Bench noted that from the various reports on record, it is evident that Court orders have been violated time and again. Illegal mining activity has not been curbed and the mining has been continued beyond permissible limits. As a result, irreparable ecological damage has followed..Taking note of a multitude of judgments emphasizing on ecological rights, particularly under Article 21, the Court deemed it appropriate to intervene in the matter, invoking the doctrine of public trust as laid down in MC Mehta’s case. It was held,.“The scope of judicial review is not limited to validity of enactments alone but would also be applicable to policy decisions when the decisions either directly or indirectly violate the fundamental rights, more so in cases where the interest of the public is at stake. If the ecology is not protected, there is no doubt that it will endanger the very existence of human life and we might not even have a future generation. .Therefore, as a custodian of the fundamental rights and the constitutional rights, it is the duty of this court to ensure that environment is protected and is not subjected to degradation, when the authorities have failed. Hence, the third question is answered in affirmative.”.Feature image taken from here.