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