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W.P.Nos.26808 of 2019 and batch IN THE HIGH COURT OF JUDICATURE AT MADRAS ORDER RESERVED : 28.02.2020 ORDER PRONOUNCED : 12.06.2020 CORAM : THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN W.P. Nos. 26808, 27182, 27183, 27735, 27741, 27743, 27746, 27787, 27788, 27790, 27792, 27791, 27794, 27795, 27796, 27806, 27812, 27817, 27822, 27913, 27915, 27927, 27928, 27955, 27958, 27961, 28065, 28070, 28071, 28073, 28091, 28096, 28099, 28104, 28125, 28126, 28129, 28130, 28234, 28239, 28241, 28245, 28293, 28297, 28300, 28304, 28545, 28549, 28552, 28546, 28547, 28550, 28645, 28650, 28652, 28657, 28707, 28714, 28718, 28720, 28745, 28733, 28740, 28749, 28795, 28803, 28810, 28906, 28911, 28915, 28917, 28918, 28931, 28933, 28987, 28989, 28992, 28997, 29003, 29147, 29149, 29166, 29168, 29171, 29172, 29175, 29232, 29235, 29241, 29249, 29260, 29264, 29261, 29456, 29469, 29489, 29490, 29494, 29495, 29507, 29512, 29514, 29518, 29522, 29528, 29515, 29516, 29519, 29521, 29523, 29526, 29554, 29557, 29559, 29561, 29563, 29564, 29567, 29568, 29570, 29846, 30006, 30098, 30184, 30188, 30190, 30195, 30198, 30200, 30254, 30257, 30259, 30262, 30267, 30446, 30484, 30486, 31235, 32013, 32017, 32209, 32211, 32213, 32498, 32563, 27182, 27183, 32820, 32889, 33394, 33397, 33400, 33403, 33506, 33538, 33755 and 35203 of 2019, 431, 448, 889, 894, 1770, 1772, 1773, 1776, 1781, 1815, 2031, 2234, 2358, 2842, 2843, 4172, 3345 and 4588 of 2020 and W.M.P. Nos. 27263, 26583, 26581, 26582, 27268, 27276, 27278, 27322, 27324, 27328, 27329, 27330, 27332, 27334, 27335, 27353, 27360, 27366, 27373, 27501, 27503, 27512, 27514, 27542, 27544, 27548, 27686, 27689, 27690, 27693, 27713, 27717, 27721, 27725, 27768, 27772, 27775, 27776, 27903, 27908, 27914, 27918, 1/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 27972, 27977, 27980, 27983, 28287, 28292, 28295, 28286, 28289, 28290, 28294, 28408, 28410, 28413, 28418, 28458, 28464, 28473, 28475, 28482, 28490, 28496 28500, 28546, 28549, 28552, 28650, 28654, 28660, 28663, 28665, 28678, 28681,28749, 28750, 28755, 28756, 28759, 28761, 28772, 28932, 28937, 28967, 28970, 28972, 28975, 28977, 29035, 29037, 29043, 29060, 29063, 29062, 29297, 29315, 29344, 29345, 29347, 29354, 29375, 29379, 29381, 29386, 29393, 29398, 29380, 29383, 29385, 29389, 29391, 29394, 29432, 29435, 29438, 29440, 29441, 29442, 29446, 29447, 29449, 29751, 29910, 30043, 30147, 30153, 30158, 30164, 30168, 30169, 30230, 30234, 30236, 30239, 30244, 30454, 30458, 30512, 30515, 31377, 32263, 32266, 32493, 32498, 32500, 32830 and 32937, 26581, 26582, 26583, 33247, 33318, 33862, 33853, 33856, 33859, 33976, 33998, 34241 and 35992 of 2019 and 488, 505, 1069, 2044, 2049, 2054, 2061, 2050, 2118, 2374, 2371, 2613, 2755, 3284, 3285, 3345 & 4930 of 2020 In W.P.No.26808 of 2019:- P.Soundarrajan ...Petitioner Vs 1.The District Collector, Tiruvannamalai District, Tiruvannamalai. 2.The Deputy Director, Geology and Mining Department, Tiruvannamalai District. ...Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records of the 1st respondent in Na.Ka.No.438/Minerals/2019-29 dated 31.07.2019 and to quash the same. 2/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch For Petitioner : M/S.S.Ambigapathi For Respondents : Mr.Ms.Narmadha Sampath Additional Advocate General assisted by Mr.R.Govindasamy, Special Government Pleader Ms.P.Rajalakshmi and Mr.M.Inbanathan, Additional Government Pleaders COMMON ORDER In these batch of writ petitions, the petitioners have questioned the memos issued by the respective District Collectors, calling upon the petitioners herein to pay 100% cost of the mineral lifted for the period from 15.01.2016 to 10.01.2017 towards the cost of mineral, on the ground that, the respective petitioners have operated the mines without prior Environment Clearance from the Ministry of Environment and Forest, Government of India. The demands by the respective District Collectors were also based on the order of the Hon' ble Supreme Court of India in Civil.No.114 of 2014, wherein, by order dated 02.08.2017, the Hon'ble Supreme Court had stated that in the event of any overlap that is illegal or unlawful mining without environment clearance or without both would attract only 100% compensation and not 200% compensation. 3/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 2.It had been stated that the Director of Geology and Mining, Chennai, had instructed the respective District Collectors to comply with the orders of the Hon'ble Supreme Court of India and consequently, memos had been issued to the writ petitioners seeking as aforesaid payment of 100% cost of the mineral lifted for the period from 15.01.2016 to 10.01.2017. 3.The writ petitioners have questioned the order of the respective District Collectors on more or less the same grounds. The facts are also similar. Arguments were also advanced in common by the learned counsels. All the writ petitions had already been clubbed together. A common order is therefore passed. 4.As an illustration, the facts in W.P.Nos.27735, 27741, 27182 and 27183 of 2019 and W.P.Nos.889, 894 and 2031 of 2020 are narrated. W.P.No.27735 of 2019:- 5.The writ petitioner, M.Duraisamy, was the successful bidder in respect of 4/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Government Rough stone, Cut stone, Chakkai and Jelly quarry measuring 1.00.0 Hectares in S.F.No.383/2B (Part) (Pit-7) in Erumapalayam Village, Salem Taluk and District for a bid amount of Rs.9,55,000/-. Pursuant to the said bid, by proceedings bearing R.O.C.No.112/2011/Mines-A, dated 01.03.2011, the District Collector, Salem District, confirmed the bid and granted Rough stone quarrying lease in his favour with respect to the said land. Necessary lease agreement was also executed on 05.05.2011, which was for a period of 5 years, to expire on 04.05.2016. 6.In the affidavit filed in support of the writ petition, it had been stated that the writ petitioner commenced quarry operations and was transporting the quarried minerals with valid transport permits issued by the 2nd respondent on payment of necessary seigniorage. It had been further stated that the Secretary to Government, Industries Department, Government of Tamilnadu, by G.O.Ms.No.79, Industries (MMC-1) Department, dated 06.04.2015, published in the Government Gazette, dated 22.04.2015, inserted Rules 41 and 42 to the Tamilnadu Minor Mineral Concession Rules, 1959. Rule 41 dealt with submission 5/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch of approved Mining Plan and Rule 42 dealt with submission of Environment Clearance from the State Level Environmental Impact Assessment Authority (SEIAA), represented by its Chairman, Chennai. In Rule 42 (iii), the existing lessees like the petitioner were also directed to submit Environment Clearance from SEIAA or from the Ministry of Environment and Forest (MoEF), as the case may be. 7.Initially, the existing lease holders were granted 180 days from 22.04.2015 to submit Environment Clearance. This time period was subsequently extended again and again and finally, fixed as 630 days from 22.04.2015. This period ended on 10.01.2017. 8.It had been further stated in the affidavit that the Chairperson and Members of the Environmental Committee were not appointed and consequently, applications submitted by existing lessees were not processed by the said Authority. The petitioner did not apply for Environment Clearance. The lease of the petitioner expired on 04.05.2016. The petitioner claimed that the quarry 6/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch operations carried on by him till 04.05.2016 were legal and lawful. However, the impugned memo, dated Nil-06-2019, was issued, by the 2nd respondent / The District Collector, Salem District, levying and demanding a sum of Rs.8,33,625/-, claiming that the amount represents 100% penalty for the total quantity of 2565 cbm of Rough stone quarried and transported during the period from 15.01.2016 to 10.01.2017. 9.The petitioner had challenged the said memo issued to him on the ground that the 2nd respondent / the District Collector, Salem District, had not taken note of the fact that the lease period had expired on 04.05.2016 and till that date, the petitioner had a subsisting lease agreement, permitting him to quarry the stones. It was stated that the reference in the notice to the order of the Hon'ble Supreme Court was misconceived. It was also stated that the 2nd respondent had not considered the fact that the time had been extended for a period of 630 days by the successive amendments to Rule 42 (iii) of the Tamilnadu Minor Mineral Concession Rules, 1959. 7/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 10.The primary ground for challenging the impugned memo was that the petitioner was not put on notice or issued with a show cause notice prior to the demand for payment of penalty. The petitioner claimed that had such notice been issued, the petitioner would have had an opportunity to explain the facts. The petitioner claimed that the impugned memo will have to be set aside as the same was totally arbitrary, against law and perse illegal. The petitioner claimed that the writ petition should be allowed. W.P.No.27741 of 2019:- 11.The writ petitioner, S.Krishnappa, was the successful bidder in respect of Government Rough stone and Jelly quarry measuring 4.11.0 Hectares in S.F.No.122 (Part) in Ullatti Village, Hosur Taluk, Krishnagiri District for a bid amount of Rs.11,10,000/-. Pursuant to the said bid, by proceedings bearing R.O.C.No.129/2008 (Mines-2), dated 29.05.2008, the District Collector, Krishnagiri District, confirmed the bid and granted Rough stone quarrying lease in his favour with respect to the said land. Necessary lease agreement was also executed on 29.06.2009, which was for a period of 10 years to expire on 8/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 28.06.2019. 12.In the affidavit filed in support of the writ petition, it had been stated that the writ petitioner commenced quarry operations and was transporting the quarried minerals with valid transport permits issued by the 2nd respondent on payment of necessary seigniorage. It had been further stated that the Secretary to Government, Industries Department, Government of Tamilnadu, by G.O.Ms.No.79, Industries (MMC-1) Department, dated 06.04.2015, published in the Government Gazette, dated 22.04.2015, inserted Rules 41 and 42 to the Tamilnadu Minor Mineral Concession Rules, 1959. Rule 41 dealt with submission of approved Mining Plan and Rule 42 dealt with submission of Environment Clearance from the State Level Environmental Impact Assessment Authority (SEIAA), represented by its Chairman, Chennai. In Rule 42 (iii), the existing lessees like the petitioner were also directed to submit Environment Clearance from SEIAA or from the Ministry of Environment and Forest (MoEF), as the case may be. 9/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 13.Initially, the existing lease holders were granted 180 days from 22.04.2015 to submit Environment Clearance. This time period was subsequently extended again and again and finally, fixed as 630 days from 22.04.2015. This period ended on 10.01.2017. 14.It had been further stated in the affidavit that the petitioner had submitted a duly filled application, dated 31.12.2015, by online, to the 3 rd respondent / SEIAA, seeking Environment Clearance, but no orders have been passed, till the expiry of the stipulated period of 630 days fixed for submission of Environment Clearance. However, the 2nd respondent / The District Collector, Krishnagiri District, stopped quarrying operations on and from 11.01.2017, by the impugned memo bearing R.O.C.No.1042-7/2018/Mines, dated 02.08.2019, levying and demanding a sum of Rs.3,76,45,590/-, claiming that the amount represents 100% penalty for the total quantity of 1,17,930 cbm of Rough stone quarried and transported during the period from 15.01.2016 to 10.01.2017. 15.The petitioner had challenged the said memo issued to him on the 10/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch ground that the 2nd respondent / the District Collector, Krishnagiri District, had not taken note of the fact that the period mentioned in the impugned memo ie., from 15.01.2016 to 10.01.2017 was covered by the period of 630 days stipulated in Rule 42 (iii) of the Tamilnadu Minor Mineral Concession Rules, 1959. 16.The primary ground for challenging the impugned memo was that the petitioner was not put on notice or issued with a show cause notice prior to the demand for payment of penalty. The petitioner claimed that had such notice been issued, the petitioner would have had an opportunity to explain the facts. The petitioner claimed that the impugned memo will have to be set aside as the same was totally arbitrary, against law and perse illegal. The petitioner claimed that the writ petition should be allowed. W.P.Nos.27182 and 27183 of 2019:- 17.Both the writ petitions have been filed by M/s.Madhucon Granite Limited, Khammam, Andhra Pradesh, questioning the notice dated 09.07.2019, passed by the District Collector, Thiruvannamalai District and the notice dated 11/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 15.07.2019 passed by the 2nd respondent. 18.The petitioner was granted quarry lease on 18.02.2008, vide G.O.Ms.No.3. On 29.10.2015 and on 27.01.2016, Government Orders were passed, extending the time limit for furnishing the Environmental Clearance Certificate as required under Rules 41 and 42 of the Tamilnadu Minor Mineral Concession Rules, 1959. The petitioner claimed that on 06.07.2016, Environment Clearance Certificate was issued to them. Further dispatch permits were also issued by the 2nd respondent till July, August and September 2018. The 3rd respondent forwarded the 2nd scheme of approval to the 2nd respondent on 06.09.2018 and it was claimed that it is still pending. The petitioner filed an application for issuance of dispatch / transport permit on 24.10.2018. Since till 20.12.2018, the 3rd respondent had not issued the permit, the petitioner submitted a representation for issuance of dispatch permit. Another representation was given on 02.02.2019. 19.The petitioner, then, filed W.P.No.7536 of 2019 seeking a direction to 12/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch issue transport permit. It was stated that the 3rd respondent filed a status report in the said writ petition claiming that the approval for the 2nd scheme of Mining was pending before the 2nd respondent. This Court passed orders in W.P.No.7536 of 2019 on 21.06.2019, directing the 2nd respondent to pass orders in the 2nd scheme of Mining approval application. On 09.07.2019, the 1st respondent had issued the demand notice impugned in W.P.No.27182 of 2019. The petitioner filed a reply on 18.07.2019. However, the 2nd respondent passed the impugned notice dated 15.07.2019 and the petitioner claimed that opportunity of personal hearing was not granted. It was stated that since Environment Clearance had been obtained, the 1st and 2nd respondents have no right to issue both the notices impugned in both the writ petitions. It was claimed that the writ petitions should be allowed. W.P.Nos.889 and 894 of 2020:- 20.Both the writ petitions have been filed by M/s.Dalmia Bharat Sugar and Industries Limited, having registered office at Dalmiapuram, Trichy District, carrying on business in the name and style of Dalmia Magnesite Corporation at Salem. 13/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 21.W.P.No.889 of 2020 had been filed in the nature of Certiorari to quash the compensation demand raised in the memo dated 18.06.2019 vide R.O.C.No.45/2018/D-1/Mines-A of the 2nd respondent / the District Collector, Salem. W.P.No.894 of 2020 had been filed seeking a declaration that the petitioner has a subsisting lease for mining of Magnesite and Dunite up to 31.03.2030, in view of Section 8A of the Mines and Minerals (Development and Regulation) Act, 1957. 22.In the affidavit filed in support of W.P.No.889 of 2020, the Managing Director of the petitioner company stated that originally 1,314 acres (531.98 hectares) of land in S.No.6 in Chetty Chavadi Village, Salem Taluk and District was taken on lease by the petitioner for a period of 20 years from 20.08.1966 to 19.08.1986. Thereafter, by a lease deed dated 30.03.1998, the lease was extended retrospectively from 20.08.1986 to 19.08.2006. The permits of the lease for Magnesite and Dunite was for a period of 20 years. The petitioner made an application for renewal of the lease on 11.07.2005, enclosing all requisite 14/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch documents. This application was received by the District Collector, Salem on the same day itself. The petitioner applied for a second renewal of mining lease for an area of 449.364 hectares and surrendered an area measuring 82.616 hectares. It was claimed in the affidavit that the mining plan of the petitioner was approved by the Controller of Mines (South Zone), Indian Bureau of Mines, Bangalore, by letter dated 01.09.2005 and the final mine closure plan for the area of 82.616 hectares, which was surrendered, was also approved by the Controller of Mines (South Zone), Indian Bureau of Mines, Bangalore, by letter dated 05.01.2006. Since the Government did not pass any order on the application seeking renewal, the petitioner filed W.P.No.25518 of 2006 seeking a mandamus, restraining the respondents therein from interfering with the mining of minerals by the petitioner. 23.It was claimed in the affidavit that this Court had admitted the said writ petition and also granted an order of injunction in M.P.No.1 of 2006 in W.P.No.25518 of 2006, by order dated 17.08.2006, which order is said to be still in force. It had been further claimed in the affidavit that the petitioner had applied for Environment Clearance on 09.02.2006 to the Ministry of 15/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Environment, New Delhi, through the Secretary, Industries Department, Government of Tamilnadu, in accordance with the requirements of the Environment Impact Assessment Notification, 2004. A revised application was submitted on 12.10.2011 and it was claimed that the Expert Appraisal Committee had conducted a hearing on 17.04.2012, but however, though it was claimed that the terms of reference had been approved and published in the Ministry of Environment and Forest, New Delhi website, the order was not communicated to the petitioner. 24.It was claimed that in 2015, Section 8A had been inserted in the Mines and Minerals (Development and Regulation) Act, 1957, relating to the period of grant of mining lease for minerals other than Coal, Lignite and Atomic Minerals. It was claimed that all mining leases granted before the commencement of the said amendment shall be deemed to have been granted for a period of 50 years. It was also claimed that the period of lease shall be extended and be deemed to have been extended up to 31.03.2030. 16/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 25.The petitioner claimed that they come within the stipulations required for renewal of the lease. It was also claimed that since the lease stands automatically extended, Environment Clearance was not required. It was stated that only if the petitioner applies for renewal and orders are to be passed by the Government, then alone, Environment Clearance would be required. The petitioner also claimed that while winning Magnesite ore, the petitioner has to mine the parent rock, Dunite. It was claimed that there was no separate mining operation, since both the minerals are co-exist in nature and are inseparable. 26.The 2nd respondent / the District Collector, Salem, had issued R.O.C.No.45/2018/D-1/Mines-A, dated 18.06.2019, stating that the petitioner had requested for issuance of No Objection Certificate for further processing of their application for getting Environment Clearance. The Director of Geology and Mining, Chennai, by letter dated 31.10.2018, had called upon the petitioner to furnish the details in compliance with the directions of the Hon'ble Supreme Court of India. Since the details were not furnished, Environment Clearance was also not issued. 17/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 27.Under these circumstances, the District Collector, Salem, had issued notice, calling upon the petitioner to pay a sum of Rs.11,44,30,605/- being 100% cost of the minerals for the quantity of 1,75,159.309 CBM. The petitioner, however, claimed that there is deemed extension of the lease period and therefore, obtaining Environment Clearance was not required. The petitioner also claimed that there is a subsisting lease till 31.03.2030. 28.Questioning the demand notice of the District Collector, Salem, the writ petition in W.P.No.889 of 2020 had been filed and seeking a direction that the petitioner's lease is deemed to have been extended till 31.03.2030, W.P.No.894 of 2020 had been filed. The petitioner claimed that both the writ petitions should be allowed. W.P.No.2031 of 2020:- 29.This writ petition has been filed by Ramco Cements Limited, in the 18/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch nature of Certiorari to quash the memorandum bearing Reference R.C.No.70/2019/Mines dated 26.08.2019, issued by the 1st respondent / the District Collector, Perambalur, levying 100% cost of mineral on the petitioner for operating the mines without Environment Clearance from 15.01.2016 to 10.01.2017. 30.In the affidavit filed in support of the writ petition, it had been claimed that the petitioner was granted mining lease by the 3rd respondent / Industries (MMC.1) Department, represented by the Principal Secretary to the Government of Tamilnadu, by G.O.Ms.No.582, dated 28.10.1992, for mining of limestone for its cement plant at Ariyalur District, over an extent of 18.11.5 Hectares in S.F.No.169/1, 169/2, 169/3, etc., in Varagupadi Village, Kunnam Taluk, Perambalur District for a period of 20 years. A lease deed dated 24.10.1993 was also executed. The petitioner surrendered a portion of its mining lease and retained 4.68.0 Hectares on 15.09.2012. This was also approved by the 3rd respondent vide G.O.Ms.No.165 dated 15.09.2012. 19/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 31.It was claimed that the petitioner had applied for renewal of mining lease to the District Collector, Perambalur on 18.10.2012. It was claimed that consents were also obtained from the Tamilnadu Pollution Control Board on 08.06.2013 under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 as well as under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974. It was further claimed that these consents were periodically renewed till 30.06.2016. The petitioner submitted a notice of temporary dis- continuation of mine in Form-D1 to the Indian Bureau of Mines on 09.07.2016 and claimed that they have stopped mining activities from 22.07.2016. 32.It was further stated in the affidavit that the Ministry of Environment and Forest (MoEF) had issued a notification on 14.03.2017, directing that applications for Environment Clearance have to be applied within a period of six months. It was also stated that mining lease period without obtaining Environment Clearance after 15.01.2016 would be considered as a violation. The petitioner applied for Environment Clearance on 30.05.2017. The petitioner sent a representation on 25.10.2017 to the Regional Controller of Mines, Indian 20/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Bureau of Mines, Chennai, requesting processing and approval of the mining plan and it was claimed that approval was granted by the Indian Bureau of Mines. However, on 17.03.2018, the State Level Environmental Impact Assessment Authority (SEIAA) had directed the petitioner to submit details for specific terms of reference for its mine in Varagupadi Village and the petitioner claimed that they have submitted the details on 14.06.2018. However, the 1st respondent / the District Collector, Perambalur, had issued the impugned memorandum, levying 100% cost claiming that the petitioner has to pay a total cost of Rs.6,58,79,985/- for Limestone production of 144505 Metric Tons for the period from January 2016 to July 2016 without Environment Clearance. 33.The petitioner had questioned the said impugned memorandum on the ground that there had been no fact finding exercise or adjudication of liability and the memorandum had been issued merely on the basis of the orders of the Hon'ble Supreme Court of India. It had been stated that there was total non application of mind. It had been further stated that the petitioner had been operating under valid 21/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch transport permits from January 2016 to July 2016 and had remitted the royalty fee from time to time for the minerals mined during the said period. It had also been stated that the petitioner had not operated mine and had also issued a notice of temporary discontinuance of mine in Form-D1. 34.It had been claimed that the 1st respondent had overlooked the fact that no guidelines were issued by the Ministry of Environment and Forest (MoEF) in respect of Environmental Clearance for lease of major minerals with less than 5 Hectares area. It had been stated that there was no complaint against the petitioner for carrying out mining operations and it was therefore claimed that the judgment of the Hon'ble Supreme Court would not apply to the petitioner. It was stated that the writ petition should be allowed. Counter affidavits filed by the respective District Collectors in the respective Writ Petitions:- W.P.No.27735 of 2019 – The District Collector, Salem:- 35.In the counter affidavit, it had been stated that the petitioner was the 22/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch successful bidder with respect to quarry of Government Rough stone, Cut stone, Chakkai and Jelly in 1.00.0 Hectares in S.F.No.383/2B (Part) (Pit-7) in Erumapalayam Village, Salem Taluk and District and by proceedings bearing R.O.C.No.112/2011/Mines-A, dated 01.03.2011, the bid was confirmed and lease agreement was also executed on 05.05.2011. The lease was for a period of 5 years from 05.05.2011 to 04.05.2016. 36.It was further stated in the counter affidavit that the Hon'ble Supreme Court, by order dated 27.02.2012, in I.A.No.12-13 of 2011 in S.L.P. (C) No.19628-19629 of 2019 in the matter of Deepak Kumar Vs. State of Haryana and others had ordered that lease of minor minerals including the renewal for an area less than 5.00.0 Hectares, be granted by the State / Union Territory only after getting Environment Clearance from the Ministry of Environment and Forest (MoEF). To ensure compliance, an Office Memorandum dated 18.05.2012 was issued by the MoEF, stating that all mining projects of minor minerals including the renewal, irrespective of the size of the lease would require prior Environment Clearance and that the project of the minor minerals with lease area less than 5 23/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Hectares would be treated as category “B” and would be considered by the respective State Environment Impact Assessment Authorities notified by Ministry of Environment and Forest and following the procedure under the Environment Impact Assessment Notification, 2006. With respect to the time period granted for submission of Environment Clearance, it had been stated that the period was extended at regular intervals and finally for a period of 630 days. 37.It had been stated that when the State Government sought further time, the National Green Tribunal, by order dated 04.05.2016, in Rev.Aplc.No.1 of 2016 in Original Application No.34 of 2016 in the matter of Ramakant Gautam Vs. State of Madhya Pradesh, had directed that the Environmental Impact Assessment Authorities must dispose the pending applications by 31.05.2016 and that no further time would be granted. With respect to the applications, which were deficient and where the applicants have not submitted all requisite documents, one week time was granted for regularizing the applications. It had been stated that violating establishments shall be liable to be shutdown without 24/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch any further notice. The State Authorities were directed to upload in the respective websites, details of the applications pending before them as on 31.03.2016. 38.It had been further stated in the counter affidavit that the State Government had filed M.A.No.260 of 2017 in O.A.No.123 of 2014, seeking further extension of one year period for implementation of the said directions. However, the National Green Tribunal, by order dated 18.04.2017, refused to grant any further time and directed the State Government to expedite the compliance as expeditiously as possible and ensure that no mining activity was carried on without obtaining prior Environment Clearance. 39.It had been stated that the petitioner herein had not even submitted his application seeking Environment Clearance, it had also been stated that the Hon'ble Supreme Court had stated that Section 21 (5) of the Mines and Minerals (Development and Regulation) Act, 1957, is applicable when any person raises, without any lawful authority, any mineral from any land. The Hon'ble Supreme Court had further held that there can be no compromise on the quantum of 25/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch compensation that should be recovered and that it should be 100%. 40.It had been stated that the District Collectors had been requested by the Director of Geology and Mining by letter Rc.No.1375/LC/2016, dated 18.06.2019, to take necessary action for recovery of 100% cost of the mineral for the violative cases. It had been stated that following these directions, the impugned demand notice had been issued for the relevant period to the petitioner. It had been further stated that the petitioner had failed to submit the application form, seeking Environment Clearance and therefore, the petitioner is liable to comply with the demand raised. It had also been stated that since the demand was made in compliance of the directions of the Hon'ble Supreme Court of India and the National Green Tribunal and the directions of the Director of Geology and Mining and since the petitioner was very well aware of the fact that he cannot quarry without getting Environment Clearance, there was no issue of granting notice to the petitioner. It had been stated that the notice is valid and it was stated that the writ petition should be dismissed. 26/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch W.P.No.27741 of 2019 – The District Collector, Krishnagiri District:- 41.In the counter affidavit, it had been stated that the petitioner was the successful bidder with respect to quarry of Government Rough stone in 4.11.0 Hectares in S.F.No.122(P) in Ullati Village, Hosur Taluk, Krishnagiri District and by proceedings bearing R.O.C.No.129/2008/Mines-2, dated 29.03.2008, the bid was confirmed and lease agreement was also executed on 29.06.2009. The lease was for a period of 10 years from 29.06.2009 to 28.06.2019. 42.It was further stated in the counter affidavit that the Hon'ble Supreme Court, by order dated 27.02.2012, in I.A.No.12-13 of 2011 in S.L.P. (C) No.19628-19629 of 2019 in the matter of Deepak Kumar Vs. State of Haryana and others had ordered that lease of minor minerals including the renewal for an area less than 5.00.0 Hectares, be granted by the State / Union Territory only after getting Environment Clearance from the Ministry of Environment and Forest. To ensure compliance, an Office Memorandum dated 18.05.2012 was issued by the Ministry of Environment and Forest, stating that all mining projects of minor minerals including the renewal, irrespective of the size of the lease would require 27/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch prior Environment Clearance and that the project of the minor minerals with lease area less than 5 Hectares would be treated as category “B” and would be considered by the respective State Environment Impact Assessment Authorities notified by Ministry of Environment and Forest and following the procedure under the Environment Impact Assessment Notification, 2006. With respect to the time period granted for submission of Environment Clearance, it had been stated that the period was extended at regular intervals and finally for a period of 630 days. 43.It had been stated that when the State Government sought further time, the Hon'ble National Green Tribunal, by order dated 04.05.2016, in Rev.Aplc.No.1 of 2016 in Original Application No.34 of 2016 in the matter of Ramakant Gautam Vs. State of Madhya Pradesh, had directed that the Environmental Impact Assessment Authorities must dispose the pending applications by 31.05.2016 and that no further time would be granted. With respect to the applications, which were deficient and where the applicants have not submitted all requisite documents, one week time was granted for regularizing 28/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch the applications. It had been stated that violating establishments shall be liable to be shutdown without any further notice. It had been stated that the State Authorities were directed to upload in any respective websites, details of the applications pending before them as on 31.03.2016. 44.It had been further stated in the counter affidavit that the State Government had filed M.A.No.260 of 2017 in O.A.No.123 of 2014, seeking further extension of one year period for implementation of the said directions. However, the National Green Tribunal, by order dated 18.04.2017, refused to grant any further time and directed the State Government to expedite the compliance as expeditiously as possible and ensure that no mining activity was carried on without obtaining prior Environment Clearance. 45.It had been stated that the petitioner herein had given an incomplete form and had not submitted the requisite documents seeking Environment Clearance. It had also been stated that the Hon'ble Supreme Court had stated that Section 21 (5) of the Mines and Minerals (Development and Regulation) Act, 29/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 1957, is applicable when any person raises, without any lawful authority, any mineral from any land. The Hon'ble Supreme Court had further held that there can be no compromise on the quantum of compensation that should be recovered and that it should be 100%. 46.It had been stated that the District Collectors had been requested by the Director of Geology and Mining by vide letter Rc.No.1375/LC/2016, dated 18.06.2019, to take necessary action for recovery of 100% cost of the mineral for the violative cases. It had been stated that following these directions, the impugned demand notice had been issued for the relevant period to the petitioner. It had been further stated that the petitioner had not filed his application form with requisite documents, seeking Environment Clearance and therefore, the petitioner is liable to comply with the demand raised. It had also been stated that since the demand was made in compliance of the directions of the Hon'ble Supreme Court of India and the National Green Tribunal and the directions of the Director of Geology and Mining and since the petitioner was very well aware of the fact that he cannot quarry without getting Environment Clearance, there was 30/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch no issue of granting notice to the petitioner. It had been stated that the impugned demand notice is valid and it was stated that the writ petition should be dismissed. W.P.Nos.27182 & 27183 of 2019 – The District Collector, Thiruvannamalai:- 47.In the counter affidavit, the respondents justified the notice dated 09.07.2019 impugned in W.P.No.27182 of 2019 and the notice dated 15.07.2019 impugned in W.P.No.27183 of 2019. 48.According to the respondents, the petitioner had been granted quarry lease on 18.02.2008. The Government had extended the time limit for furnishing Environment Clearance Certificate as required under Rules 41 and 42 of the Tamilnadu Minor Mineral Concession Rules, 1959. The petitioner had submitted a 2nd scheme for approval to the 2nd respondent on 06.09.2018. The respondents have brought to the notice of the petitioner that the papers submitted by the petitioner were not in order and that several documents are required. It is a fact that the petitioner was issued with Environment Clearance on 06.07.2016, but however, subsequent to the submission of the 2nd scheme for approval, 31/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Environment Clearance had not been issued to the petitioner. The petitioner had therefore no right to continue with quarrying operations. However, the petitioner had continued with quarrying operations. 49.The petitioner had filed W.P.No.7536 of 2019 seeking issuance of transport permit. Even in the said writ petition, the respondents had filed a status report stating that the approval for the 2nd scheme of mining was pending before the 2nd respondent. A direction was issued by this Court to pass orders on the said application. However, it is claimed that the application was not in order. The requisite documents had not furnished. Therefore, order granting approval was not passed. The petitioner had been issued with notice dated 09.07.2019, which had been impugned in W.P.No.27182 of 2019. The impugned order in W.P.No.27183 of 2019 was passed on 15.07.2019, after affording an opportunity to the petitioner for answering the notice dated 09.07.2019. The petitioner replied only on 18.07.2019, after the second demand dated 15.07.2019 had been issued. Since 32/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch the petitioner did not obtain Environment Clearance for the 2nd scheme, the respondents justified the demand and stated that the writ petitions should be dismissed. W.P.Nos.889 & 894 of 2020 – The District Collector, Salem:- 50.In the counter affidavit filed by the 2nd respondent / the District Collector, Salem, in W.P.No.889 of 2019, it had been stated that originally K.Rengasari and Ramasami, Jahirdars of the Chetti Chavadi Village, Salem Taluk and District, had entered into an agreement with the District Collector, Salem, to mine Magnesite and Chromite in the Jaghir area of Salem. Subsequently, the Mangesite Corporation of India Limited, Trichy, had purchased the village from the registered holders and requested the District Collector, Salem, to transfer the mining lease agreement. Thereafter, the Magnesite Corporation of India Limited, had entered into an agreement with the District Collector, Salem, to carry out mining operations over an area of 493.26 acres and the agreement was registered on 10.11.1945. 33/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 51.The Dalmia Cements (Bharat) Limited, Trichy, had carried out the mining operations over an extent of 893.10 acres by way of temporary permission granted in Government Proceedings No.5303 (Development) dated 28.12.1950, in addition to the area held by M/s.Magnesite Corporation of India Limited. The entire estate of Chetti Chavadi Jaghir was taken over by the Government under the Madras Inam Estate (Abolition and Conversion into Ryotwari) Act, 1963. The Government granted mining lease to the Dalmia Cements (Bharat) Limited, Trichy, treating the land as Government land originally, to an extent of 1986.36 acres, by G.O.No.903, Department of Industries, Labour and Corporation, dated 25.02.1966 and later the area was amended as 1419.08 acres in Chetti Chavadi Jaghir Village for a period of 20 years. Further lease was granted to Dalmia Cements (Bharat) Limited, Trichy, on 26.06.1976 for a period of 10 years for an extent of 1314 acres. This lease expired on 19.08.1986. 52.Dalmia Cements (Bharat) Limited, Trichy, applied for renewal of mining lease for a period of 20 years over the said area. The Government decided to reserve the area in favour of TANMAG (A State Government undertaking). 34/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Dalmia Cements (Bharat) Limited, Trichy, then, filed W.P.No.12358 of 1986, seeking renewal of lease and seeking protection from interference with possession. An interim injunction was granted on 17.11.1986. Further application to renew the license was also filed and W.P.No.7531 of 1987 was filed, seeking orders be passed in the renewal of lease application. It was stated that the Government, by G.O.Ms.No.74 Industries (MMD-1), Department, dated 11.03.1997, had granted the first renewal mining lease for mining Magnesite and Dunite and making them co-terminus in the area in S.F.No.6 of Chetti Chavadi Village, Salem District for a period of 20 years from 20.08.1986 to 19.08.2006. 53.This Court passed orders on 01.08.1997 in W.P.No.12358 of 1986 with a direction to execute a lease deed in favour of Dalmia Cements (Bharat) Limited, Trichy. It was stated that the Director of Ministry of Environment and Forest, by letter dated 03.04.2017, had informed the State Government that as per Notification S.O.No.141 (E) dated 15.01.2016, all the mining leases (major mineral as well as minor minerals) operating in the country were required to obtain Environment Clearance after 15.01.2016 as per the provisions contained in 35/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Environment Impact Assessment Notification, 2006. Further, the Hon'ble Supreme Court, by order dated 02.08.2017, in the matter of Common Cause Vs. Union of India and others had also held that if there is violation of any of the statutory requirements, then, the mining operation was illegal and unlawful. 54.It was stated that the Hon'ble Supreme Court had directed that 100% compensation must be recovered from the defaulting lessee. It had been specifically stated by the respondents that the petitioner had mined and transported a total quantum of 1,75,159.309 Metric Tons of Dunite from the Magnesite and Dunite lease area without obtaining Environment Clearance. It was stated that the demand in the impugned notice was based on the order of the Hon'ble Supreme Court of India and it was stated that there is no violation in the issuance of the impugned notice. 55.It was stated that though the petitioner can seek to exercise the provisions under Section 8A(5) of Mines and Minerals (Development and Regulation) Act, 1957, as amended in 2015, the petitioner has to still produce 36/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Environment Clearance Certificate, which is a statutory requirement to execute a lease deed and to start mining operations. It was specifically stated that the petitioner had not obtained Environment Clearance Certificate. It was stated that though the petitioner had stated about the difference between Magnesite and Dunite minerals, the petitioner had not stated anything in the affidavit with respect to the cost of the mineral, but had only reiterated about renewal of the lease. 56.It was stated that the cost of the mineral was calculated only according to the base year 1993-94 and had been calculated from 01.04.2000 to 31.08.2018 as per the directions of the Hon'ble Supreme Court of India in W.P.(Civil) No.114 of 2014, dated 02.08.2017 and the subsequent guidelines issued by the Government of India, Ministry of Environment, Forest and Climate Change. It was therefore stated that the writ petitions have no merit and should be dismissed. 57.With respect to the averments in W.P.No.894 of 2020, it had been stated that there cannot be any automatic renewal of license under Section 8A of the 37/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Mines and Minerals (Development and Regulation) Act, 1957, since the petitioner had not obtained Environment Clearance, which is mandatory under the directions of the Hon'ble Supreme Court of India and also by the notification issued by the Government of India, Ministry of Environment, Forest and Climate Change, It had been stated that the petitioner had continued mining the minerals without obtaining Environment Clearance and therefore, in accordance with the directions of the Hon'ble Supreme Court, the petitioner had been served with the notice, calling upon them to pay 100% cost of the mined and quarried. 58.With respect to the claim of the petitioner that there must be a deemed renewal of license, it had been stated that there cannot be any deemed renewal of license without submission of the Environment Clearance Certificate as directed by the Hon'ble Supreme Court. It was therefore stated that the writ petitions should be dismissed. W.P.No.2031 of 2020 – The District Collector, Perambalur:- 59.In the counter affidavit filed by the District Collector, Perambalur, it had 38/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch been contended that the petitioner, Ramco Cements Limited, had submitted an application on 18.10.2012 for renewal of mining lease for mining limestone over an extent of 4.68.0 Hectares in Varagupadi Village, Kunnam Taluk, Perambalur District and carried out mining operations under deemed extension in accordance with Rule 24A (6) of Mineral Concession Rules, 1960. 60.The petitioner had contended that they had been issued with terms of reference by letter dated 14.06.2018 and amended terms of reference by letter dated 30.07.2018. The petitioner had, however, not obtained Environment Clearance in respect of the lease hold lands and the respondents therefore contended that mining operations carried out by the petitioner from 15.01.2016 in the lease hold area was an illegal mining operation as clarified by the letter of the Ministry of Environment and Forest, dated 03.04.2017. The petitioner was therefore issued with the impugned notice for recovery of cost of minerals mined and transported for the period from 15.01.2016 to July 2016 alone. 61.The claim of the petitioner that the demand was made from 15.01.2016 39/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch to 10.01.2017 was not correct was denied by the respondents. The petitioner had actually carried on mining operations over an extent of 18.11.5 Hectares in Varagupadi Village, Kunnam Taluk, Perambalur District from 24.10.1993 without obtaining Environment Clearance. The respondents therefore justified the issuance of the demand notice, impugned in the writ petition, towards cost of minerals and the quantum of limestone mined and transported without Environment Clearance for the period from 2000-2001 based on the base year production of 1993-94 as directed by the Hon'ble Supreme Court of India in the matter of Common Cause Vs. Union of India and others. 62.The respondents also denied all other contentions raised by the petitioner and stated that obtaining Environment Clearance is mandatory and that the petitioner cannot seek exemption of the same and also seek renewal of license. It was stated that mining operations conducted by the petitioner from January 2016 to July 2016 were illegal and therefore, the impugned notice had been issued to the petitioner. It was stated that the writ petition should be 40/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch dismissed. Counter affidavits filed on behalf of the State Level Environment Impact Assessment Authorities:- 63.The learned Standing Counsels on behalf of the State Level Environmental Impact Assessment Authority had filed a detailed chart with respect to the applications said to have been filed seeking Environment Clearance for each one of the writ petitions, where, the State Level Environmental Impact Assessment Authority had been impleaded as a respondent. 64.With respect to W.P.No.27735 of 2019, it had been stated that the petitioner had not submitted any application seeking Environment Clearance. With respect to W.P.No.27741 of 2019, it had been stated that there was a violation in the project and the petitioner had not submitted all the relevant details in the application form and the file had been recorded. 65.With respect to W.P.Nos.27182 & 27183 of 2019, it had been stated that 41/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch the petitioner had applied for 2nd scheme of mining. However, the application was not in proper format. It is a fact that the petitioner was granted Environment Clearance, but subsequently, the petitioner had submitted a 2nd scheme for mining under Rule 41 of the Tamilnadu Minor Mineral Concession Rules, 1959 and had not obtained Environment Clearance, but had continued with the mining. It was therefore stated that the demand made by the District Collector was justified. With respect to W.P.Nos.889 & 894 of 2020, it was stated that the petitioner had not obtained Environment Clearance and the petitioner was carried on mining operations under the deemed extension provision. However, such deemed extension cannot be presumed by the petitioner, in view of the fact that there was no prior Environment Clearance from the Ministry of Environment, Forest and Climate Change, New Delhi. It was stated that the writ petition should be dismissed. 66.With respect to W.P.No.2031 of 2020, the petitioner had not impleaded the State Environmental Impact Assessment Authority. The application for Environment Clearance had not been granted and in spite of the same, the 42/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch petitioner had continued with mining operations from January 2016 to July 2016, for which period, the impugned notice had been issued. 67.Heard arguments advanced by Mr.K.Ramakrishna Reddy, Mr.V.Sanjeevi, Mr.P.Sengottuvel, Mr.V.Ramana Reddy, Mr.M.Muthappan, Mr.T.Ramesh, Mr.G.Arul Murugan, Mr.K.R.Krishnan, Mr.T.Poornam and Mr.T.Rahul Balaji, learned counsels on behalf of the petitioners and Ms.Narmadha Sampath, Additional Advocate General assisted by Mr.R.Govindasamy, Special Government Pleader, Ms.P.Rajalakshmi and Mr.M.Inbanathan, Additional Government Pleaders for the 1st and 2nd respondents and Mr.K.Srinivasa Murthy, Mr.V.Chandrasekaran, Mr.Venkataswamy Babu and Ms.Sunithakumari, learned Standing Counsels for the 3rd / 4th respondents. 68.Mr.K.Ramakrishna Reddy, who led the arguments on behalf of the petitioners, pointed out that originally, approved mining plan as envisaged under Rule 41 of the Tamilnadu Minor Mineral Concession Rules, 1959 and 43/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Environment Clearance as envisaged under Rule 42 of the said Rules, were not required in respect of mining leases of minor minerals of less than 5.00.0 Hectares. However, Environment Clearance was made mandatory by the Hon'ble Supreme Court of India in the judgment reported in 2012 (4) SCC 629 (Deepak Kumar and others Vs. State of Haryana and others), even for minor minerals of less than 5.00.0 Hectares. 69.The writ petitions related to stone quarry leases granted with respect to both Government land and patta land. For Government land, the leases were granted under Rule 8 of the Tamilnadu Minor Mineral Concession Rules, 1959 by following Tender cum Auction system. For patta land, leases were granted on application filed under Rule 19 of the said Rules. 70.The learned counsel pointed out that pursuant to the judgment in Deepak Kumar's case (referred supra), the State of Tamilnadu, by G.O.Ms.No.79, Industries, (MMC-1), Department, dated 06.04.2015, inserted Rules 41 and 42 to the Tamilnadu Minor Mineral Concession Rules, 1959. As 44/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch stated above, Rule 41 dealt with submission of approval of mining plan and Rule 42 dealt with submission of Environment Clearance. Originally, 180 days was granted for submission of Environment Clearance under Rule 42 (iii). 71.The learned counsel pointed out that the State of Tamilnadu did not constitute the authority for grant of Environment Clearance and did not also appoint the Chairman of the State Level Environmental Impact Assessment Authority. Therefore, the petitioners could not obtain the Environment Clearance within the stipulated period of 180 days. Thereafter, being aware of the situation, the State Government extended the time periodically and finally fixed 630 days and amended Rule 42 (iii) on 14.07.2016. The period of 630 days came to an end on 10.01.2017. Subsequently, all the District Collectors stopped quarrying operations in all the quarries throughout Tamilnadu on and from 11.01.2017. 72.The learned counsel pointed out that most of the writ petitioners had actually submitted the application forms seeking Environment Clearance. 45/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch However, the respondents had not issued Environment Clearance. The learned counsel stated that the blame cannot be shifted on the petitioners for continuing quarry operations without Environment Clearance. The petitioners can only apply for Environment Clearance. They have done so. The onus then shifts to the respondents to either grant the Environment Clearance or to reject the application and calling upon the petitioners, if the application is not in proper format, to rectify the mistakes. However, the respondents did not take any step and they have kept the applications pending. They extended the time for submission of Environment Clearance and finally, granted time up to 630 days. Even on the expiry of 630 days, the applications were kept pending. It was stated that all the quarry works stopped on 11.01.2017. 73.It was pointed out by the learned counsel that the respondents / the District Collectors have not applied their mind to examine whether the lease period in most of the cases had actually expired even before 11.01.2017. As an instance, the learned counsel pointed out that the case of the petitioner, M.Duraisamy, in W.P.No.27735 of 20019. The lease period of the petitioner had 46/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch expired on 04.05.2016 and he stopped the quarrying operations on 04.05.2016. However, the demand notice had claimed amounts up to 10.01.2017. The learned counsel pointed out that this showed total non application of mind on the part of the District Collector, Salem. Similarly, in other writ petitions also, the respective District Collectors, had not even considered the fact that whether the petitioner had applied for Environment Clearance and whether the Environment Clearance applications were pending before the concerned authorities, but had issued impugned notices in printed form by filling the blanks namely, name of the company, name of the lessee and the quantity of mines quarried and the amount demanded. 74.The learned counsel also pointed out that the impugned notices suffer, because prior notice was not issued to any of the petitioners. Pointing out this fact, the learned counsel stated that if only the District Collectors had issued notices, then, the writ petitioners would have had an opportunity to explain the correct position and then, the District Collectors might even have taken a conscious decision to drop further proceedings. The learned counsel very 47/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch seriously questioned the lack of opportunity granted and stated that the principles of natural justice have been violated by the respondents herein. 75.The learned counsel also stated that the petitioners were also permitted to continue the quarrying operations until 10.01.2017. The District Collector also issued transport permits for transport of quarried minerals on payment of necessary seigniorage till 10.01.2017. The learned counsel therefore stated that the impugned notices suffer from total non application of mind and also on violation of principles of natural justice. 76.The learned counsel pointed out that under the notices, 100% penalty has been levied and the petitioners have been put to very serious hardship owing to the said notices. The learned counsel again reiterated that stereo type notices have been issued demanding huge amounts alleging that the quarrying operations were carried on from 15.01.2016 to 10.01.2017 even in the case of lessees, whose lease period had expired earlier to 10.01.2017. 48/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 77.The learned counsel stated that even in the notice, it had been mentioned that the petitioner have paid royalty fee and other statutory dues to the Government. They have paid the seigniorage charges and royalty fee and the District Collector had issued the transport permits. In spite of the same, the printed forms have been issued demanding 100% cost of the mineral lifted from the entire period from 15.01.2016 to 10.01.2017. 78.The learned counsel also referred to the judgment of the Hon'ble Supreme Court in Deepak Kumar's case (referred supra) and pointed out that the Hon'ble Supreme Court was considering extraction of minor minerals in the District of Panchkula and Haryana for quarrying in the riverbeds of Yamuna, Tangri, Markanda, Ghaggar, Krishnavati River basin, Dohan River basin, etc., There were also complaints of illegal mining in the State of Rajasthan and Uttar Pradesh. 79.The learned counsel stated that after examining the rival contentions, the Hon'ble Supreme Court had, in paragraph No.26, stated that it was necessary to 49/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch have an effective framework of mining plan, which will take care of all environmental issues and also evolve a long term rational and sustainable use of natural resource base and also the bio-assessment protocol. 80.The Hon'ble Supreme Court also directed that all the States, Union Territories, the Ministry of Environment and Forest and the Ministry of Mines must give effect to the recommendations made by the Ministry of Environment and Forest in the report of March 2010 and the Modal Guidelines framed by the Ministry of Mines, within a period of six months from the date of judgment. Finally, in paragraph No.29, the Hon'ble Supreme Court had stated that the leases of minor minerals including their renewal even for an area of less than 5 Hectares can be granted by the States / Union Territories, only after getting Environment Clearance from the Ministry of Environment and Forest. 81.In view of the fact that there were two directions namely, to submit a mining plan and to obtain Environment Clearance, the Tamilnadu Government inserted Rules 41 and 42 in the Tamilnadu Minor Mineral Concession Rules, 50/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 1959, by G.O.Ms.No.79, Industries (MMC-1) Department, dated 06.04.2015. 82.The said Government Order specifically referred to the Hon'ble Supreme Court in Deepak Kumar's case (referred supra) and inserted Rule 41 namely submission for approval of mining plan for minor minerals other than Granite and Rule 42 namely, submission of Environment Clearance for the grant of quarry lease for minor minerals including Granite. It was stated that the holders of lease including Granite shall submit Environment Clearance within a period of 180 days from the date of commencement of the Rules. Thereafter, by periodical amendments, the time was finally extended to 630 days. 83.The learned counsel pointed out that the Government of Tamilnadu had filed M.A.No.260 of 2017 in O.A.No.123 of 2014 before the National Green Tribunal, Principal Bench, New Delhi, seeking extension of time for implementation of the directions of the judgment of the Tribunal dated 13.01.2015 for a further period of one year and sought extension of further time more than 630 days. However, the National Green Tribunal had refused extension 51/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch of time and stated that the Government of Tamilnadu had exhibited inaction in complying with the judgment and the guidelines and for protection of environment ecology. 84.The learned counsel referred to the judgment of the Hon'ble Supreme Court of India in W.P. (C) No.114 of 2014 in the matter of Common Cause Vs. Union of India dated 02.08.2017 and drew reference to paragraph Nos.90 and 91 and stated that though paragraph No.90 had been referred in the impugned notices, in the said paragraph, the Hon'ble Supreme Court had stated that the Environment Clearance will be required only if the existing mining project does not have No Objection Certificate from the State Pollution Control Board. 85.The learned counsel stated that the impugned notices issued by the respective District Collectors, have been issued without any application of mind in printed forms, completely violating the principles of natural justice and therefore, the learned counsel stated that the writ petitions should be allowed. In this connection, the learned counsel relied on the judgment of the Hon'ble 52/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Supreme Court in (2011) 5 Supreme Court Cases 553 (Radhy Shyam (dead) through legal heirs and others Vs. State of Uttar Pradesh and others) and drew specific reference to paragraph 40, which is as follows:- 40.Before adverting to the precedents in which Section 5A has been interpreted by this Court, it will be useful to notice development of the law relating to the rule of hearing. In the celebrated case of Cooper v. Wandsworth Board of Works, (1863) 143 ER 414, the principle was stated thus: "Even God did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam" says God, "where art thou? hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat". Therein the District Board had brought down the house of the plaintiff's (Cooper), because he had failed to comply with The Metropolis Local Management Act. The Act required the plaintiff to notify the board seven days before starting to build the house. Cooper argued that even though the board had the legal authority to tear his house down, no person should be deprived of their property without notice. In spite of no express words in the statute the court recognized the right of hearing before the plaintiff's house built without permission was demolished in the exercise of statutory powers. Byles J stated: 53/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch “....Although there are not positive words in a statute requiring that the party shall be heard, yet the justice of the common law shall supply the omission of the legislature”. 86.The learned counsel therefore stated that the notices issued violating the principles of natural justice should be struck down by this Court. The learned counsel also relied on the judgment of the Hon'ble Supreme Court in (2014) 16 Supreme Court Cases 392 (Nisha Devi Vs. State of Himachal Pradesh and others) and drew specific reference to paragraphs 3, 4 and 5, which are as follows:- “3.The narration of the complicated and convoluted sequence of events is not essential for deciding the present Appeals for the simple reason that the impugned Judgments accept the Report of the Tehsildar, Kullu, which was itself predicated only on the revenue records and was arrived at without hearing the Appellant. In the said Report the Income Certificate issued to the Appellant, to the effect that her income was less than Rupees twelve thousand per annum, thereby making her eligible for appointment as a Anganwadi Worker, was cancelled on the predication that she was the owner of 1-19 Bighas of land which was in addition to her father’s ownership of 6 Bighas of land. 4. In the course of arguments addressed before us, the fervent submission of counsel of the Appellant that she was not afforded any opportunity of being heard has not been controverted, inasmuch as it has been contended that the 54/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Report of the Tehsildar was based on revenue records, which, therefore, was presumed to be correct. The High Court has acted upon this one sided or unilateral Report of the Tehsildar in arriving at the conclusion that the Appellant indeed had an income in excess of Rupees twelve thousand per annum and, accordingly, was ineligible for appointment as an Anganwadi Worker. 5.Trite though it is, we may yet again reiterate that the principle of audi alteram partem admits of no exception, and demands to be adhered to in all circumstances. In other words, before arriving at any decision which has serious implications and consequences to any person, such person must be heard in his defence. We find that the High Court did not notice the violation and infraction of this salutary principle of law. Accordingly, on this short ground, the impugned Judgments and Orders require to be set aside, and are so done. The matter is remanded back to the Divisional Commissioner for taking a fresh decision after giving due notice to the Appellant and affording her an opportunity of being heard. The Divisional Magistrate, Kullu, shall complete the proceedings expeditiously, and not later than six months from the date on which a copy of this Order is served on him.” 87.The learned counsel again reiterated that the Hon'ble Supreme Court had consistently upheld the view that any order passed violating the principles of natural justice and denying the opportunity of personal hearing, must be struck 55/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch down. 88.The learned counsel also relied on the judgment of the Hon'ble Supreme Court of India in (1990) 3 Supreme Court Cases 223 (Shri Sitaram Sugar Company Limited and another Vs. Union of India and others) and drew specific reference to paragraph No.46, which is as follows:- “46.Any arbitrary action, whether in the nature of a legis- lative or administrative or quasi-judicial exercise of power, is liable to attract the prohibition of Article 14 of the Constitution. As stated in E.P. Royappa v. State of Tamil Nadu & Anr., (1974) 4 SCC 3, "equality and arbi- trariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch." Unguided and unrestricted power is af- fected by the vice of discrimination: Mrs. Maneka Gandhi v. Union of India & Anr., (1978) 1 SCC 248. The principle of equality enshrined in Article 14 must guide every state action, whether it be legislative, executive, or quasi-judicial: Ramana Dayaram 'Shetty v. The International Airport Authority of India & Ors., (1979) 3 SCC 489; Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors.. (1981) 1 SCC 722 and D.S. Nakara & Ors. v. Union of India, (1983) 1 SCC 305.” 89.The learned counsel stated that the action of the District Collectors in issuing the notices arbitrarily and without affording an opportunity of hearing, has 56/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch to be interfered with by this Court, since the notices were arbitrary in nature and violated the principles of equality enshrined in Article 14 of the Constitution of India. The learned counsel therefore stated that the writ petitions should be allowed. 90.Mr.V.Sanjeevi, learned counsel argued elaborately, questioning the notices issued by the respective District Collectors claiming 100% compensation for the quantity of the minerals quarried and lifted and transported during the period from 15.01.2016 to 10.01.2017. 91.The learned counsel pointed out that the date ie., 15.01.2016 had been fixed based on the date of notification of the Ministry of Environment and Forest and there was also a reference in the impugned notice to the judgment of the Hon'ble Supreme Court in Common Cause's case (referred supra) in 2017 (9) SCC 499 and to the letter of Director of Geology and Mining, calling upon the respective District Collectors to issue the impugned notices. The learned counsel stated that the regulation of mines and minerals comes under List I in Serial 57/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch No.54 of the VIIth Schedule of the Constitution of India. 92.In the Mines and Minerals (Development and Regulation) Act, 1957, it had been provided under Section 2 that mines and minerals come under the control of Union of India and in Section 15, it had been stated that the State can frame rules for minor minerals. Section 4 related to prospective or mining operations under lease or license. Section 4 (1-A) provided that there can be no transport or storage, unless specific permission is granted. Section 21 gave the penalties for violation of any of the provisions under Sections 4 and 4 (1-A). It provided an imprisonment of 5 years and a fine of Rs.5 lakhs. Section 21 (5) stated that without any lawful authority, if there has been mining and lifting of minerals, then the State Government can collect the price of the minerals lifted and also the rent, loyalty and taxes payable. This Section has been interpreted in the Common Cause's case referred supra by the Hon'ble Supreme Court of India. The learned counsel stated that in Deepak Kumar's case (referred supra), it was only in the last paragraph it had been stated that there can be no renewal for the 58/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch stone quarries, unless Environment Clearance is obtained even when the area is less than 5 Hectares. 93.However, in the Official Memorandum dated 18.05.2012 issued by the Ministry of Environment and Forest, it had been stated that even for leases for less than 5 hectares, existing leases would not come under the purview of the regulations. Under the notification dated 15.01.2016, it had been stated that the District level and State level Authorities should be constituted. However, this notification came to be interpreted by the National Green Tribunal and in its order dated 11.12.2018, it has been very specifically stated that the notification dated 15.01.2016 was not consistent with the decision in Deepak Kumar's case (referred supra). It was very specifically stated that the notification should not be acted upon. 94.The learned counsel therefore pointed out that the date ie., 15.01.2016, mentioned in the impugned notice itself is a misconception and on this ground alone, the notice will have to be struck down. The learned counsel also stated 59/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch that the end date namely, 10.01.2017 had also been arbitrarily fixed as no such date been mentioned in any one of the judgments of the Hon'ble Supreme Court. Thereafter, the State Government had introduced Rules 41 and 42 to the Tamilnadu Minor Mineral Concession Rules, 1959. Rule 41 relates to production of mining plan and Rule 42 (iii) relates to obtaining Environment Clearance. The learned counsel stated that the petitioners had applied seeking Environment Clearance, but the State Government had not provided the Environment Clearance. The onus was on the State Government to provide Environment Clearance. If the applications were not in order, then, the Appropriate Authority should have informed the respective applicants regarding the defects in the applications, so that, rectifications can be made. However, after receiving the applications, the Authority had kept silent and the learned counsel urged that the date ie., 10.01.2017 had been arbitrarily fixed. 95.The learned counsel pointed out that till that date, the District Collectors had not come forward to cancel the lease or the license granted in favour of the petitioners. Even the Government had not taken such step. The learned counsel 60/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch pointed out that the Government had not directed the District Collectors to issue the impugned notices. The learned counsel pointed out that the State Government had not filed counter affidavit in the writ petitions. The learned counsel argued that the District Collectors have no authority to take a stand on behalf of the State Government. The learned counsel also pointed out that the Director of Mining also had no authority. However, he directed the Collector to issue the impugned notices. The learned counsel stated that there was no application of mind by the Collector, before issuing on notice. The learned counsel pointed out that under Rule 36 A provides for penalty and Rule 36 C of the Tamilnadu Minor Mineral Concession Rules, 1959, provides for appeal to the District Collector. The learned counsel also pointed out the fact that the State Level Environmental Impact Assessment Authority had not been formed and hence obtaining Environment clearance was an impossibility and that the petitioners cannot be faulted for not submitting them. The learned counsel stated that the writ petitions should be allowed. 96.Mr.P.Sengottuvel, learned counsel also put forth his arguments. The 61/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch learned counsel also adopted the arguments of Mr.K.Ramakrishna Reddy and Mr.V.Sanjeevi. The learned counsel pointed out that Rule 42 (4) provides for termination of the lease, but for reasons best known to the respondents, they have not resorted to that option. They should have issued prior notice before issuing the impugned notices. However, the demand has been raised claiming that it is based on the judgment of the Hon'ble Supreme Court of India. The learned counsel stated that there had been inordinate a delay on the part of the State Level Environmental Impact Assessment Authority in granting Environment Clearance and therefore, stated that the petitioners could not be faulted. 97.The learned counsel pointed out that the respective District Collectors had actually granted transport permits and therefore, there can be no illegality in the quarrying of the mines or in transporting them even during the period from 15.01.2016 to 10.01.2017. The learned counsel also urged that the writ petitions should be allowed. 98.Mr.T.Ramesh, learned counsel for the writ petitioner in W.P.Nos.27182 and 27183 of 2019 stated that the petitioners had actually obtained Environment 62/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Clearance. Thereafter, they have submitted a 2nd mining plan. That was kept pending by the respondents. The learned counsel stated that the petitioner had filed a writ petition seeking a mandamus to issue Environment Clearance and to issue transport permit. A direction was issued. However, the respondents have not granted Environment Clearance. The learned counsel stated that the writ petitions should be allowed and had also faulted the impugned notices on the grand of non application of mind. 99.Mr.T.Poornam, learned counsel for the writ petitioner in W.P.Nos.889 and 894 of 2020 stated that there is no reference to the judgment of Deepak Kumar case (referred supra), in the impugned notices. The learned counsel stated that the judgment in Common Cause (referred supra) has no connection with the judgment of Deepak Kumar case (referred supra). The learned counsel also stated that the judgment in Common Cause (referred supra) was lessee specific and product specific. It was also territory specific. The said judgment related to a specific lessee, who had mined Iron and Manganize in Odisha. The learned counsel stated that Iron and Manganize were major minerals. The learned 63/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch counsel therefore stated that the said judgment cannot give cause to the respective District Collectors to issue the impugned notices. 100.The learned counsel relied on the judgment of the Hon'ble Supreme Court in AIR 1978 SC 851 (Mohinder Singh Gill and others Vs. The Chief Election Commissioner, New Delhi and others), wherein, a Constitution Bench while examining the issue of ordering fresh poll with respect to Ferozepore Parliamentary Constitution for the elections held on 16.03.1977 also had an occasion to examine an administrative order and in paragraph No.8 of the said judgment, had stated that “public orders, publicly made in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or what was in his mind, or what he intended to do.” The Constitution Bench had for the purpose of that proposition placed reliance on the observations in AIR 1952 SC 16 (The Commissioner of Police, Bombay Vs. Gordhandas Bhanji). 64/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 101.The learned counsel also relied on the judgment of the Hon'ble Supreme Court in AIR 2010 Supreme Court 2794 ( East Coast Railway and another Vs. Mahadev Appa Rao and others with K.Surekha Vs. Mahadev Appa Rao and others), again for the proposition that “an order passed by the public authority exercising administrative / executive or statutory powers must be judged by the reasons stated in the order or in any record or file contemporaneously maintained”. The Hon'ble Supreme Court in this case had also relied on the judgment in AIR 1952 SC 16 (The Commissioner of Police, Bombay Vs. Gordhandas Bhanji) and also on the judgment of the Constitution Bench in AIR 1978 SC 851 (Mohinder Singh Gill and another Vs. Chief Election Commissioner, New Delhi and others). 102.The learned counsel also placed reliance on the judgment of the Hon'ble Supreme Court in AIR 2005 Supreme Court 3520 (Hindustan Petroleum Corporation Limited Vs. Darius Shapur Chennai and others), wherein, again reference was made to Mohinder Singh Gill (referred supra). The learned counsel questioned the order passed by the District Collector on the 65/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch ground that reasons were not given in the same and that prior notice was not issued. 103.The learned counsel pointed out the judgment of the Jharkhand High Court in W.P.(C) No.7286 of 2017 (M/s.Hindalco Industries Limited Vs. The State of Jharkhand and others), wherein, a similar issue had been raised with respect to Bauxite and Copper and wherein, interim orders had been granted and the matter had been posted for final hearing. The learned counsel stated that the petitioner was deemed to have been granted extension of license. He also stated that prior show cause notice was not issued. The learned counsel pointed out the writ petition in W.P.No.29275 of 2016 filed by the petitioner, wherein, interim orders were granted and thereafter, W.A.No.72 of 2017 had been filed. Further another writ petition in W.P.No.25518 of 2006 had also been filed. A contempt petition had also been filed. The learned counsel pointed out that Magnesite and Dunite are minerals, which are co-terminus and found in same rock. The learned counsel stated that the petitioner is entitled to continue to operate since there is a 66/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch deemed extension of the lease period in view of the fact that the respondents have kept the applications pending without answering it. The learned counsel stated that the writ petitions should be allowed. 104.Mr.Rahul Balaji, learned counsel for the writ petitioner in W.P.No.2031 of 2020 during the course of his arguments referred to the written submission submitted and stated that the judgment in Deepak Kumar (referred supra) held that Environment Clearance was required for leases of minor minerals including renewals for an area less than 5 hectares and that the Ministry of Environment and Forest had issued an Office Memorandum on 04.01.2013, pursuant to a clarification sought by the State Level Environmental Impact Assessment Authority, Karnataka stating that there was no requirement for Environment Clearance for major minerals in mining area of less than 5 hectares. 105.The learned counsel claimed that the petitioner was mining limestone, which is a major mineral for its own cement plant in Varagupadi Village, Kunnam 67/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Taluk, Perambalur District. The learned counsel also relied on another clarificatory letter dated 08.01.2016 issued by the Ministry of Environment and Forest, wherein, it had been stated that after 07.10.2014, all new mining operations required prior Environment Clearance and for existing mines, Environment Clearance must be obtained at the time of renewal of mining leases. It had been also clarified that mines of major minerals with lease area of less than 5 hectares, which have been operating before 07.10.2014, may continue with mining operations with the consented capacity and that there shall be no enhancement of the production capacity without prior Environment Clearance. 106.The learned counsel also pointed out the notification dated 15.01.2016 of the Ministry of Environment and Forest, which referred only to minor minerals. The learned counsel contended that the said notification was not applicable for mining leases for major minerals. 107.The learned counsel relied on the order dated 19.02.2016 passed by the National Green Tribunal, Principal Bench in Jatinder Singh Vs. Union of India 68/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch and others, in O.A.No.495 of 2015. The learned counsel claimed that there was no notification issued even as on 19.02.2016 for mandatory Environment Clearance for mining major minerals in lease area of less than 5 hectares. The learned counsel stated that in January 2017, the District Authorities had directed the petitioner to stop mining operations and refused to issue transport permits. The petitioner had, then, applied for Environment Clearance with the State Level Environmental Impact Assessment Authority. The learned counsel stated that inconsistent positions were taken by the Ministry of Environment and Forest on the applicability of the Environment Impact Assessment Notification dated 15.01.2016 to major minerals with less than 5 hectares. 108.The learned counsel pointed out that in the communication dated 03.04.2017, the Ministry of Environment and Forest had addressed the Principal Secretary, Industries Department, Tamilnadu, stating that the notification of the year 2006 would be applicable to mining leases for major minerals with mining area of less than 5 hectares. The learned counsel also drew the notice of this Court to the notification dated 15.01.2016, in which, both major and minor minerals 69/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch were mentioned. However, by the clarification issued to the Tamilnadu Small Mine Owners Federation, the Ministry of Environment and Forest had addressed a response on 17.08.2017 stating that the notification dated 15.01.2016 was applicable to minor minerals and with respect to major minerals, the procedure was as per schedule 'A' of Environment Impact Assessment Notification, 2006. However, by the communication dated 04.10.2017, which was in response to the communication issued by the petitioner, the respondents have stated that all mining leases both major and minor minerals were required to obtain Environment Clearance. The learned counsel lamented at the inconsistent stands taken by the officials. 109.The learned counsel further pointed out that the State of Tamilnadu had approached the National Green Tribunal, Principal Bench, seeking extension of time. That was rejected. In the said application, the State of Tamilnadu had submitted that the delay in implementation was owing to the fact that the Chairman of State Level Environmental Impact Assessment Authority, Tamilnadu was yet to be appointed and that applications for grant of Environment Clearance 70/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch were pending. The learned counsel also pointed out the order of National Green Tribunal, Principal Bench in Satendra Pandey Vs. Ministry of Environment and Forest and others (O.A.No.186 of 2018), dated 13.09.2018, wherein, it was stated that the notification dated 15.01.2016 was not in consonance with the judgment of the Hon'ble Supreme Court in Deepak Kumar case (referred supra). By a subsequent order dated 11.12.2018, in Vikrant Tongad Vs. Union of India, the National Green Tribunal, Principal Bench, in E.A.No.55 of 2018 in O.A.No.520 of 2016, has also suspended the operation of the notification dated 15.01.2016 and consequently, the learned counsel stated that no penalties can be levied on the basis of the notification dated 15.01.2016. 110.The learned counsel stated that there is still ambiguity on the applicability of the notification dated 15.01.2016 to major minerals in mining lease area of less than 5 hectares. The learned counsel also stated that the order levying penalty had been passed without any determination / adjudication of liability and without any fact finding exercise and without any finding of violation. The learned counsel questioned the reliance placed on the judgment of 71/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Common Cause (referred supra) in the impugned notice stating that the said judgment was not applicable to mining major minerals in lease area of less than 5 hectares. The learned counsel also pointed out that the penalty levied based on the Common Cause (referred supra), had been challenged before the Hon'ble High Court of Jharkhand in W.P.(C) No.7286 of 2017 by Hindalco Industries and interim orders had been granted by the said High Court. 111.The learned counsel stated that the petitioner was granted an approval by the Indian Bureau of Mining, by letter dated 08.11.2017. The learned counsel stated that the impugned order has to be struck down on all the above grounds and also particularly because it violated the principles of natural justice. The learned counsel therefore urged that the writ petition should be allowed. 112.The learned Additional Advocate General, Ms.Narmadha Sampath, assisted by Mr.R.Govindasamy, Additional Government Pleader in her reply to the arguments advanced by the learned counsel for the petitioners stated with respect to the charge that the impugned notices had been issued without issuing 72/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch show cause notice and without providing an opportunity of hearing, that the impugned notices issued by the respective District Collectors were based on the judgment of the Hon'ble Supreme Court of India dated 02.08.2017 in the matter of Common Cause (referred supra) and based on the instructions issued by the Ministry of Environment, Forest and Climate Change in the Office Memorandum dated 30.05.2018. 113.The learned Additional Advocate General stated that prior notice is not required in the matter of recovery of cost of mineral under Section 21 (5) of the Mines and Minerals (Development and Regulation) Act, 1957. The learned Additional Advocate General also stated that the issuance of a prior show cause notice and providing an opportunity of hearing would be a futile exercise, since the judgment of the Hon'ble Supreme Court is binding on all and the petitioners cannot claim any special privilege on that issue. The learned Additional Advocate General also stated that a show cause notice and a reasonable opportunity of being heard has to be provided only when there is termination of the mining lease 73/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch under Section 4-A (1) and under Section 4-A (2) of the Mines and Minerals (Development and Regulation) Act, 1957. 114.The learned Additional Advocate General further stated that if the lessee does not permit the entry of inspection by the authorities, then, under Rule 27-4 of the Mineral Concession Rules, 1960, a notice is required to be issued, questioning why the lease should not be determined. More over, if the lessee makes any default in the payment of royalty or payment of dead rent or commits breach of any of the conditions specified under Rule 27 (1), 27 (2) and 27 (3) of the Mineral Concession Rules, 1960, then, notice is required and the Government may determine the lease and forfeit the whole or part of the security deposit as provided under Rule 27 (5) of the Mineral Concession Rules, 1960. It was also pointed out that the District Collectors may cancel a lease after granting opportunity of hearing under Rule 36 (5) (h) of the Tamilnadu Minor Mineral Concession Rules, 1959. The learned Additional Advocate General reiterated that the demand notices have been issued only under Section 21 (5) of the Mines and 74/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Minerals (Development and Regulation) Act, 1957, which does not contemplate issuance of prior notice and therefore, urged that show cause notice or an opportunity of hearing is not required. 115.With respect to the contention raised by the learned counsels for the petitioners that the mining operations carried on till the end of 630 days, which was stipulated under Rule 42 (iii) of the Tamilnadu Minor Mineral Concession Rules, 1959, cannot be treated as illegal, the learned Additional Advocate General stated that the Hon'ble Supreme Court had very categorically stated in the matter of Deepak Kumar (referred supra) that every mining operation carried on without obtaining Environment Clearance is to be declared as illegal. 116.The learned Additional Advocate General stated that a long period of 630 days was granted for obtaining Environment Clearance and if the petitioners have chosen not to obtain the same or to submit only partially filled applications, then their activity of mining is certainly to be categorized as illegal. The learned Additional Advocate General also relied on the order of the National Green 75/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Tribunal dated 18.04.2017 in M.A.No.260 of 2017 in O.A.No.123 of 2014 and reiterated that grant of prior Environmental Clearance is mandatory by the judgment of the Hon'ble Supreme Court of India, by the orders of the National Green Tribunal and under the Tamilnadu Minor Mineral Concession Rules, 1959. The learned Additional Advocate General also pointed out that the Ministry of Environment, Forest and Climate Change, by letter dated 03.04.2017, had informed that all mining leases both major as well as minor minerals have to obtain Environmental Clearance after 15.01.2016 and that no mining leases are to operate without prior Environmental Clearance. 117.The learned Additional Advocate General very specifically stated that while calculating the cost of the minerals, mined and transported the period of 180 days stipulated in Rule 42 (3) in G.O.Ms.No.79, Industries (MMC-1) Department, dated 06.04.2015, was not taken under the account. The learned Additional Advocate General also stated that as directed by the Ministry of Environment, Forest and Climate Change, by letter dated 03.04.2017, the mining carried out without Environment Clearance from 15.01.2016 to 10.01.2017 was 76/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch considered as a violation and the quantum of minerals mined and transported from 15.01.2016 to 10.01.2017 was taken into account for the purpose of recovery of the cost of minerals under Section 21 (5) of the Mines and Minerals (Development and Regulation) Act, 1957. The learned Additional Advocate General therefore justified the demand issued by the respective District Collectors. 118.With respect to the submission that no penalty can be levied against the lessees, who had actually obtained the Environmental Clearance before 10.01.2017, the learned Additional Advocate General stated that the Environmental Clearance will have only prospective effect and will not have retrospective effect and therefore, for the period till the Environmental Clearance was not obtained, the penalty had been issued. The learned Additional Advocate General stated that the period, for which mining was carried on without Environment Clearance alone, had been taken into account for the purpose of recovery of the cost of the minerals. The learned Additional Advocate General therefore justified the demands made by the respective District Collectors. 77/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 119.With respect to the submission that the leases could have been terminated under Rule 42 (4) of the Tamilnadu Minor Mineral Concession Rules, 1959 and levy of penalty was not proper, the learned Additional Advocate General stated that Rule 42 (4) stipulates that when the existing lease holders fail to submit Environment Clearance within a stipulated period, the lease can be cancelled after giving opportunity of hearing. However, the present demands have been made consequent to the orders of the Hon'ble Supreme Court in Common Cause (referred supra), wherein, a direction was issued that 100% cost of the minerals must be collected from the defaulting lessees. 120.With respect to the submission made by the learned counsels for the petitioners that the judgment in the matter of Common Cause (referred supra) was not applicable to the writ petitioners because the said judgment related to Iron and Manganize in Odisha and therefore, it is mine specific and State specific, the learned Additional Advocate General stated that interpretations given by the Hon'ble Supreme Court for illegal mining will be applicable to all the minerals 78/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch both major as well as minor minerals. She further stated that under Section 14 of the Mines and Minerals (Development and Regulation) Act, 1957, only Sections 5 to 13 will not be applicable to the minor minerals. She further stated that demand notices are perfectly valid and the levying cost of the minerals for a quantum of minor minerals mined and transported. 121.With respect to the contentions of the learned counsel in W.P.Nos.27182 and 27183 of 2013, the learned Additional Advocate General pointed out that the petitioner therein had applied for a 2nd mining scheme, but the relevant documents were not furnished and had continued to mine even without obtaining Environment Clearance. The learned Additional Advocate General therefore justified the impugned notices and stated that the writ petitions should be dismissed. 122.With respect to the issue for recovery of cost for mining Dunite as 79/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch raised in W.P.Nos.889 and 894 of 2020, the learned Additional Advocate General stated that the leases can be extended till 31.03.2030 only subject to the compliance of all terms and conditions of the lease. There cannot be any deemed renewal of the lease under Section 8A (5) of the Amendment Act, 2015. The learned Additional Advocate General pointed out that the petitioners had applied for Environment Clearance on 09.02.2006 and had submitted a revised application on 12.10.2011. Thus, it is seen that they had mined the minerals without obtaining Environment Clearance. It was stated that for that the demand notices have been issued for the quantum of Magnesite mined and transported for the period 2000-2001, based on the base year of 1993-1994 as ordered by the Hon'ble Supreme Court of India in the matter of Common Cause (referred supra). The learned Additional Advocate General therefore justified the demand made. 123.With respect to the contention raised by the learned counsel in W.P.No.2031 of 2020, the learned Additional Advocate General stated that even according to the petitioner, they had been issued with terms by letter dated 80/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 14.06.2018 and with amended terms of reference by letter dated 17.03.2018 by the State Level Environmental Impact Assessment Authority. The petitioner herein did not have Environment Clearance for carrying out mining operations from 15.01.2016. It was stated that the petitioner had carried out mining operations over an extent of 18.11.5 Hectares in S.F.No.169/1, 169/2, 169/3, etc., in Varagupadi Village, Kunnam Taluk, Perambalur District from 24.10.1993 onwards without obtaining Environment Clearance and therefore, the mining operations will have to be declared as illegal and the learned Additional Advocate General justified the demand notices on the said petitioners. The learned Additional Advocate General finally stated that the demand notices are sustainable and urged that the writ petitions should be dismissed. 124.The learned counsels on behalf of the State Level Environmental Impact Assessment Authority pointed out that whenever the applications have been properly filled and submitted, the Environment Clearance has always been granted by the Authorities. It had been pointed out that most of the writ petitioners had sent their applications for Environment Clearance by partially 81/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch filled applications. The learned counsels therefore stated that the Authority could not issue Environment Clearance on the basis of such applications filed by the petitioners in the said manner. The learned counsels therefore justified the demand notices and urged that the writ petitions should be dismissed. 125.Mr.K.Ramakrishna Reddy and Mr.V.Sanjeevi, learned counsels for the petitioners advanced arguments in reply to the submissions of the learned Additional Advocate General. 126.The learned counsels stated that there was no appeal provision available to the petitioners. They again urged that show cause notices should have been issued. They stated that the respondents should have granted an opportunity to the petitioners to explain the actual facts of each and every case. On the other hand, the respective District Collectors have issued a printed demand notice and have filled in the name of the petitioners. With respect to the amount as calculated, it was pointed out that no separate calculation sheet had been annexed 82/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch to show as to how the amounts had been arrived at. The learned counsels also pointed out that the Environment Clearance could not be obtained since the Authority was not functioning effectively and therefore they urged that the writ petitions should be allowed. 127.I have carefully considered the arguments advanced on either side. 128.The writ petition in W.P.No.26808 of 2019 had been filed in the nature of certiorari questioning the notice issued by the District Collector, Tiruvannamalai, dated 31.07.2019 in Na.Ka.No.438/Minerals/2019-29 to the petitioner calling upon him to pay a sum of Rs.24,99,525/- towards the cost of minerals quarried between 15.01.2016 and 22.11.2016. 129.The petitioner had been permitted to quarry minor minerals in the land measuring 2 hectares in S.No.1 of Kolamanjanur village, Thandarmapattu Taluk by the proceedings of the District Collector, Tiruvannamalai in 83/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch R.C.No.230/Minerals-2/2009 dated 31.03.2009 for a period of 10 years from 31.03.2009 to 30.03.2019. The petitioner had continued quarry till 11.12.2016. The petitioner had not obtained Environment Clearance till the date he stopped quarrying. In these circumstances, the impugned notice was issued to the petitioner. 130.Similar notices had been issued by the District Collectors of the respective Districts against the petitioners in all the writ petitions. Common arguments were advanced questioning the impugned notices on various grounds particularly on the ground of violation of principles of natural justice and also that obtaining Environment Clearance was an impossibility in view of the fact that a structured State Level Environmental Impact Assessment Authority (SEIAA) was not established by the Government. 131.In several writ petitions, it had been stated that though applications had been made seeking Environment Clearance, the applications have not been processed and the fault lay with SEIAA in not issuing the Environment Clearance. 84/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 132.The impugned notices were issued primarily based on the observations of the Hon'ble Supreme Court of India in the judgment reported in 2017 (9) SCC 499 (Common Cause Vs. Union of India) dated 02.08.2017. The petitioners have also questioned the locus of the District Collectors to issue the impugned notices. 133.The petitioners in W.P.Nos.889 and 894 of 2020 had also questioned the reliance placed by the District Collector on the judgment of the Hon'ble Supreme Court of India in Common Cause (referred supra) by putting forth an argument that the said judgment was State centric, mineral centric and territory area centric and therefore, the principles enunciated therein would not be applicable to the writ petitioners. 134.The petitioner in W.P.No.2031 of 2020 had raised an issue that the petitioner therein was quarrying limestone, which was a major mineral and therefore, doubted the sanctity of the proceedings initiated against the petitioner 85/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch herein. 135.Before addressing the issues raised, which require very deep consideration, I am under an obligation to place on record a few facts. 136.The oral arguments in this batch of writ petitions concluded late in the evening on 28.02.2020. Thereafter, from 03.03.2020, I had been directed to preside in the Madurai Bench of the Madras High Court. In Madurai, I was informed that a batch of writ petitions on the same issue was also pending and since I was holding a similar portfolio, that batch was listed on 13.03.2020. I enquired the learned counsels whether I can proceed to deliver judgment in the already heard batch of cases or whether they would argue the issues raised in those batch of cases. 137.It was generally stated in the Bar that arguments would be advanced so that a common order can be passed in both batches, since the issues involved were the same. However, even before the next hearing date on 30.03.2020, when 86/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch the matter was listed for arguments, a complete lockdown of the Courts were announced owing to the COVID-19 pandemic. Thereafter, it was possible to list the batch again only on 04.06.2020. The learned Senior Counsel, who had been engaged, stated that final arguments would be advanced on 18.06.2020 and this date was also consented by the Additional Advocate General, who appeared for the respondents. 138.Unfortunately, a further restriction of the Court hearing was announced and the hearings in Madurai Bench were restricted to one Division Bench and three single Judges to hear urgent cases through 'Video Conferencing' on rotation basis every week. My turn would end on 14.06.2020. On and from 15.06.2020, the portfolio regarding writ jurisdiction would be taken over by my brothers and sisters Judges as indicated by the Hon'ble Administrative Judge. Consequently, hearing arguments in the batch matters pending in Madurai Bench on 18.06.2020 has now become an impossibility. Therefore, left with no other alternative, I have taken up a conscious decision to deliver a common as hereunder in the batch of writ petitions in which arguments have been heard in full. 87/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch 139.Before proceeding to address the issues raised, it would be worthwhile to examine the provision of the Mines and Minerals (Development and Regulation) Act, 1957, (67 of 1957). 140.The Mines and Minerals (Development and Regulation) Act, 1957, (MMDR) came into effect on 28.12.1957 and is an Act to provide for the development and regulation of mines and minerals under the control of the Union. 141.Article 246 of the Constitution of India, which is in Part XI, which deals with the relationship between the Union and the States and in which Chapter I relates to Distribution of Legislative Powers, deals with the power of the Parliament and the Legislature to make laws. Article 246 (1) provides that the Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the VII Schedule. Article 246 (1) of the Constitution of India is as follows:- “246. Subject matter of laws made by Parliament and by the Legislatures of States:- 88/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”).” 142.In List I, which is the Union List as provided in the VII Schedule, Item No.54 is as follows:- “54.Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.” 143.The first amendment to the MMDR Act, 1957, was brought about by Amendment Act, 1958, in view of the importance of coal as a basic fuel and the position it occupies in the economy of the country and the necessity to treat it differently from other minerals. Necessary amendments were incorporated on that ground. 144.A further amendment to the MMDR Act, 1957 was brought about by 89/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Amendment Act, 56 of 1972, wherein, new provisions like imposition of a ceiling on individual holdings of prospecting licenses and mining leases, imposition of a specific obligation on holders of mining leases with respect to payment of royalty, provision of a statutory basis for calculation of dead rent and several other issues were brought about. 145.There was a further amendment to the MMDR Act, 1957, by Amendment Act 37 of 1986, wherein, adverse effect of mining operation on ecology and environment came to be noticed and it was found that mining operations had been undertaking without proper prospecting results in unscientific mining. Therefore, further features to provide for premature termination of prospecting licenses and mining leases on ecological and other grounds and also the necessity to prepare the mining plan as a precondition for grant of mining leases were introduced. 146.There was a proposal for further amendment to MMDA Act, 1957, by Amendment Act 10 of 2015. But the Bill could not be passed before the 90/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch dissolution of the 15th Lok Sabha and consequently lapsed. In view of the urgent need to address the issues relating to auction of mineral concession, which was affecting the manufacturing sector, which obtained the raw materials provided by the mining sector, the Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015 was promulgated on 12.01.2015. In this ordinance, apart from other provisions, a provision to establish District Mineral Foundation in the Districts affected by mining related activities to safeguard the interest of the affected persons was introduced. The MMDR Amendment Act 10 of 2015 came into effect from 26.03.2015. 147.The relevant definitions in Section 3 of the MMDR Act, 1957 are as follows:- “3. Definitions.—In this Act, unless the context otherwise requires,— (a) “leased area” means the area specified in the mining lease within which mining operations can be undertaken and includes the non mineralised area required and approved for the activities falling under the definition of mine as referred to in clause(i); (aa) “minerals” includes all minerals except mineral oils; (b)“mineral oils” includes natural gas and petroleum; 91/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch (c)“mining lease” means a lease granted for the purpose of undertaking mining operations, and includes a sub-lease granted for such purpose; (d)“mining operations” means any operations undertaken for the purpose of winning any mineral; (e)“minor minerals” means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral;” ........
148.Section 4 (1) of the MMDA Act, 1957, is as follows:-
“4.Prospecting or mining operations to be under license or lease:- (1) No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder.”
149.Section 4 (1-A) of the MMDA Act, 1957, is as follows:-
“4.(1-A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.” 92/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch
150.Section 21 of the MMDA Act, 1957, relates to penalties. Section 21 (5) is as follows:-
“(5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.”
151.From a perusal of the amendment made to the MMDR Act, 1957, it is seen that the Parliament was conscious to the adverse effects of mining operation on ecology and environment. Further, by the Amendment Act 10 of 2015, the Parliament made provision to safeguard the interest of the affected persons by establishing a District Mineral Foundation in the Districts affected by mining related activities.
152.It is with pride that it can be stated that the attention of the Parliament had been drawn to take steps to protect ecology and environment from the 93/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch onslaught of mining operation only, due to the efforts taken by the Hon'ble Supreme Court of India, who in their wisdom had striven to protect ecology from the ill-effects of various manufacturing establishments.
153.In AIR 1986 SC 1086 (M.C.Mehta Vs. Union of India), when the Hon'ble Supreme Court was examining the issue of leakage of Oleum gas from Sri Ram Food and Fertiliser Corporation of Delhi on 05.12.1985, owing to which, one person died on the spot and several others were taken ill, the Hon'ble Supreme Court of India had held as follows:-
“We have to evolve new principles and lay down new norms, which would adequately deal with the new problems which arise in a highly industrialized economy.”
154.The Hon'ble Supreme Court directed the said industrial establishment to either shift their factory premises or to create a green belt surrounding the establishment. These conditions were imposed to restart the establishment. The Hon'ble Supreme Court further directed that a sum of Rs.35,00,000/- must be deposited in a bank and also directed that a sum of Rs.15,00,000/- must be 94/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch provided as bank guarantee, so that compensation can be paid to the persons, who had suffered owing to the leakage of Oleum gas. This principle evolved by the Hon'ble Supreme Court of India in that landmark judgment came to be called as “polluter pays principle”.
155.The Hon'ble Supreme Court had further occasion to restate the said principle in (1996) 2 JT (SC) 196 (Indian Council for Enviro-Legal Action Vs. Union of India), wherein, again it had been held that sustainable development must be initiated and the redemption of damaged environment as well as the reversing damaged ecology must be the burdened on the Polluter, who must pay the cost of the individual sufferers as well as the cost of reversing the damaged ecology. Therefore, expanding the principle to provide compensation to the sufferers, the Hon'ble Supreme Court evolved further obligation namely, to reverse the ecology, which had been damaged owing to the industrial establishment.
156.The said case related to five chemical industries, which were producing 95/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch H-Acid. They discharged Azo dye and untreated toxic sludge into the open compound which flowed through a canal and the rain water also washed the sludge deep into the earth. This caused pollution of river water and underground water up to 70 feet below the ground within a radius of 7 miles of the village Bichhari. The lands became infertile. The villagers migrated to other place. It is, under these circumstances, taking up the responsibility to compensate the sufferers and also to provide the cost of reversing the damage, the Hon'ble Supreme Court again reiterated the principle “polluter pays principle”.
157.The Supreme Court was again called upon to come to the rescue of innocent sufferers of pollution in AIR 1996 SC 2715 (Vellore Citizens Welfare Forum Vs. Union of India), where, they evolved another new principle namely, precautionary principle and stated that the 'precautionary principle' and the 'polluter pays principle' are part of the environmental jurisprudence of this country.
158.In this case, untreated effluent from more than 550 tannery units were 96/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch discharged causing water pollution and land pollution in 59 villages in 3 Districts.
As many as 467 Wells in 2 Districts, which had potable water which were also used for irrigation purpose, were totally polluted. This created acute shortage of potable water. The Hon'ble Supreme Court directed the closure of the tannery units. They also imposed a fine of Rs.10,000/- on each tannery in the area and a direction was also given to the polluter to deposit the amount under the head “Environment Protection Fund”. This can be utilized for compensating the affected persons and also for restoring the damaged environment.
159.Further, evolution of the principle was enunciated by the Hon'ble Supreme Court of India in AIR 1997 SC 734 (M.C.Mehta Vs. Union of India), which related to “yellowing and decaying of the Taj Mahal”. The Hon'ble Supreme Court observed that the Mathura Refinery, Foundaries and Chemicals were hazardous industries and were a major source of damaging the Taj Mahal.
The Hon'ble Supreme Court directed that the industries must shift away from the environment or must use the gas as fuel. The industries, which did not comply, 97/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch were directed to be closed down by 31.12.1997. The Hon'ble Supreme Court further evolved that the 'polluter pays principle' would also provide 'compensatory benefits' to the workers of the industries, who shifted to other States / Sites. The continuity of employment with full back wages for the period from closure to restart of the industries and shifting bonus and compensation as per Section 25-F (b) of the Industrial Disputes Act and 6 years' wages and gratuity were all indicated by the Hon'ble Supreme Court as “compensatory benefits” for the workers. The Hon'ble Supreme Court recognized that not only the general public but also the workers themselves were victims of pollution.
160.The principles enunciated by the Hon'ble Supreme Court of India is also reflected in Article 21 of the Constitution of India, which guarantees protection of life and personal liberty. Protection of life would necessarily include safeguarding a pollution free atmosphere. The protection from pollution would necessarily imply that polluting industries must be put to task by compensating the sufferers of such pollution, which include not only the public but also the 98/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch workers and also the Mother Earth herself.
161.Article 48 (A) of the Constitution of India, which was inserted by the 42nd amendment, is as follows:-
“48A. Protection and improvement of environment and safeguarding of forests and wild life:-
The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.”
162.Article 51-A, which comes in Part IV A relating to fundamental duties, also placed an obligation on every citizen of India to protect and improve the natural environment. Article 51-A (g) is as follows:-
“51-A. A Fundamental Duties:- It shall be the duty of every citizen of India.
a) ....
b) ....
c) ....
d) ....
e) ....
f) ....
g) to protect and improve the natural environment including forests, 99/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch lakes, rivers and wild life, and to have compassion for living creatures;”
163.In the background of the evolving law of protection of environment and of directing the offending industries to pay compensation, the judgment of the Hon'ble Supreme Court in 2012 (4) SCC 629 (Deepak Kumar and others Vs. State of Haryana and others) and in 2017 (9) SCC 499 (Common Cause Vs. Union of India and others) will have to be examined. Both these judgments have a direct bearing on the mining industries and on the petitioners herein.
164.In 2012 (4) SCC 629 (Deepak Kumar and others Vs. State of Haryana and others), the Department of Mines and Geology, Government of Haryana had issued an auction notice dated 03.06.2011 to auction the extraction of miner minerals, boulders, gravel and sand quarries of an area not exceeding 4.5 hectares in each case in the District of Panchkula. Auction notices were also issued for similar quarrying of land exceeding 5 hectares in several other Districts. The auction notices were challenged before the Hon'ble Supreme Court.
There was also a complaint of illegal mining in the States of Rajasthan and Uttar 100/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Pradesh.
165.The Hon'ble Supreme Court had directed local inspection with prior notice to the Ministry of Environment and Forest to examine the allegations raised. A report was also submitted. But the Hon'ble Supreme Court observed that it was silent with respect to “disturbing trend” of serious illegal mining operations, upstream and instream and the degradation of the sites and environment. The report stated that since the lease was for an area of less than 5 hectares, Environment Clearance was not required as per the notification dated 14.09.2006 by the Ministry of Environment and Forest (MoEF). The Hon'ble Supreme Court suspected that the area was sub divided into pieces of less than 5 hectares only to “flout the notification”. The Hon'ble Supreme Court sought a detailed report from MoEF. Finally, the Hon'ble Supreme Court had held as follows:-
“26. We are of the considered view that it is highly necessary to have an effective framework of mining plan which will take care of all environmental issues and also evolve a long term rational and sustainable use of natural resource base and also the bio-assessment protocol. Sand mining, it may be noted, may have an adverse effect on bio-diversity as loss of habitat caused by 101/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch sand mining will effect various species, flora and fauna and it may also destabilize the soil structure of river banks and often leaves isolated islands. We find that, taking note of those technical, scientific and environmental matters, MoEF, Government of India, issued various recommendations in March 2010 followed by the Model Rules, 2010 framed by the Ministry of Mines which have to be given effect to, inculcating the spirit of Article 48A, Article 51A(g) read with Article 21 of the Constitution.
27.The State of Haryana and various other States have not so far implemented the above recommendations of the MoEF or the guidelines issued by the Ministry of Mines before issuing auction notices granting short term permits by way of auction of minor mineral boulders, gravel, sand etc., in the river beds and elsewhere of less than 5 hectares. We, therefore, direct to all the States, Union Territories, MoEF and the Ministry of Mines to give effect to the recommendations made by MoEF in its report of March 2010 and the model guidelines framed by the Ministry of Mines, within a period of six months from today and submit their compliance reports.
28. Central Government also should take steps to bring into force the Minor Minerals Conservation and Development Rules 2010 at the earliest. State Governments and UTs also should take immediate steps to frame necessary rules under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 taking into consideration the recommendations of MoEF in its Report of March 2010 and model guidelines framed by the Ministry of Mines, Govt. of India. Communicate the copy of this order to the MoEF, Secretary, Ministry of Mines, New Delhi, Ministry of Water Resources, Central 102/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch Government Water Authority, the Chief Secretaries of the respective States and Union Territories, who would circulate this order to the concerned Departments.
29. We, in the meanwhile, order that leases of minor mineral including their renewal for an area of less than five hectares be granted by the States/Union Territories only after getting environmental clearance from the MoEF. Ordered accordingly.”
166.The direction that the leases of minor minerals including their “renewal” for an area of less than 5 hectares can be granted only after getting Environment Clearance is the issue now before this Court. The petitioners herein have continued to mine without getting Environment Clearance and have not stopped their mining activity. They continued merrily. The judgment of the Hon'ble Supreme Court in Deepak Kumar (referred supra) directly let to insertion of Rules 41 and 42 of the Tamilnadu Minor Mineral Concession Rules, 1959.
167.By G.O.Ms.No.79, Industries (MMC-1) Department, dated 06.04.2015, published in the Tamilnadu Government Gazette in Part III, Section 1 (a), Issue No.16, Pages 22-24 dated 22.04.2015, Rules 41 and 42 were added after Rule 40 103/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch of the Tamilnadu Minor Mineral Concession Rules, 1959.
168.The Tamilnadu Minor Mineral Concession Rules, 1959, was brought about by G.O.Ms.No.3757, Industries, Labour and Co-operation, dated 24.09.1959, in exercise of the power conferred under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 and in supersession of the Tamilnadu Minor Mineral Concession Rules, 1959. These Rules related to grant of quarrying permits to Government lands, in which, the minerals belonged to the Government and in Ryotwari lands, in which, the minerals belonged to the Government and in lands, in which, the minerals do not belong to the Government.
169.Rule 36 (A) relates to penalties and Rule 36 (C) relates to appeal and second appeal. Rule 38 relates to reservation of area for exploitation in the public sector, namely, by the Government, a Corporation established by any Central, State or Provincial Act or a Government Company. Rule 38 (A) relates to 104/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch quarrying of sand by the State Government. Newly inserted Rule 41 stipulated that mining plan is a pre-requisite to the grant of lease and also related to submission and approval of mining plan for minor minerals other than Granite.
170.During the course of arguments, the learned counsel for the petitioners, in unison, stated that the present writ petitions do not relate to Rule 41 but relate to Rule 42 and more particularly to Rule 42 (iii) and (iv).
171.I disagree.
172.Rule 41 is very much essential for deciding the issues raised in the writ petitions. Rule 41 of the said Rules is as follows:-
41.Mining plan is a pre-requisite to the grant of lease and submission and approval of mining plan for minor minerals other than Granite:-
1) No lease shall be granted or renewed by the District Collector concerned unless there is a mining plan duly approved by the concerned Assistant Director or Deputy Director of Geology and Mining, as the case may be, of the district concerned by way of a proceedings under rules 6, 7, 8, 8-A, 12, 17, 18, 19 and 38-A of these rules.105/179
http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch
2) The Assistant Director or Deputy Director of Geology and Mining, as the case may be, of the district is vested with the powers to approve the mining plan for the precise area communicated by the District Collector for the grant of lease for minor minerals except granite.
3) Mining Plan to be prepared by a recognized person:-
i) No mining plan shall be approved unless it is prepared by a qualified person recognized in this behalf by the State Government or by a qualified person recognized by the Indian Bureau of Mines;
ii) No person shall be granted recognition for the purpose of clause (i) by the State Government or by the Indian Bureau of Mines in respect of minor minerals unless he holds-
a) a degree in Mining Engineering or a Post-
Graduate Degree in Geology granted by a University established or incorporated by or under a Central Act or State Act or any Institution recognized by the University Grants Commission established under Section 4 of the University Grants Commission Act, 1956 (Central Act 3 of 1956) or any qualification equivalent thereto; and
b) Professional experience of three years of working in a supervisory capacity in the field of mining or mineral administration after obtaining a degree or equivalent prescribed under clause (a);
4) Approval and submission of mining plan:-
On submission of application for grant of quarry lease under these rules, the District Collector shall take a decision on the grant of lease and 106/179 http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch communicate the precise area to the applicant if the application is in order in all respects and the area is available for grant of mining lease.
5) On receipt of the precise area communication from the District Collector, the applicant shall submit the draft mining plan for approval to the Assistant Director or Deputy Director of Geology and Mining, as the case may be, of the District within a period of ninety days. The draft mining plan submitted by the applicant shall be scrutinized and accorded approval or returned to the applicant for modification and resubmission within a period ninety days from the date of receipt of the draft mining plan.
6) If no decision is conveyed to the applicant within the stipulated period, the draft mining plan or the modified draft mining plan furnished by the applicant shall be deemed to have been provisionally approved and such approval shall be subject to the final decision whenever communicated.
7) While considering the approval of mining plan, the Assistant Director or Deputy Director of Geology and Mining, as the case may be of the district concerned has to consider the (i) level of production, (ii) level of mechnization, (iii) type of machinery used in the mining of minor mineral, (iv) quantity of diesel consumption, (v) number of trees uprooted due to mining operation, (vi) export and import of the minor mineral, and (vii) storage of mine waste or dump, etc.
8) The draft mining plan should contain the following details namely:-
107/179http://www.judis.nic.in W.P.Nos.26808 of 2019 and batch