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BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN REGION, CHENNAI

APPEAL No.97 of 2013(SZ)

In the matter of:

M/s. Indian Rare Earths Limited (A Govt. Of India Undertaking) Manavalakurichi 629 252 Kanyakumari District. .. Appellant

and

1. District Environmental Engineer Kanyakumari District Tamil Nadu Pollution Control Board 30, Kesari Street, Mathias Nagar Nagercoil-629 001.

2. District Coastal Zone Management Authority Rep.by its Chairman Office of the Senior District Collector Kanyakumari District.

3. M/s. V.V. Minerals

Keeraikaranthattu Thisaiyanvilai Tirunelveli District 627 657 Through its Managing Partner Shri S. Vaikuntarajan .. Respondents

(Praying for to set aside the order of rejection of the Appellant’s CRZ clearance

Application in Ref: IRELMK/Res/CRZ-44.6212/2012-13/887 dated 9th February

2013 as contained in the Minutes of the 59th Meeting of the 2nd respondent of

Kanyakumari District held on 10th July 2013 and communicated to the Appellant

vide 1st Respondent’s Letter No. NGL-CRZ 01 (161)/2012-13/887 dated 19th July

2013 and consequently allow the Appellant’s CRZ Clearance Application Ref.

IRELMK/Res/CRZ-44.6212/2012-13/887 dated 9th February 2013 under CRZ 2011

Notification and etc.,)

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Counsel Appearing: For Appellant : M/s. Ramasubramaniam Associates, Advocates, Chennai For respondents: Shrimathi Rita Chandrasekar, Advocate for Respondent No.1 M/s. M.K. Subramanian and M.R. Gokul Krishnan, Advocates for Respondent No.2, M/s. Srinath Sridevan for Respondent No. 3.

APPLICATION NO. 419 Of 2013 (SZ) In the matter of: 1. M/s. V.V. Minerals

Rep. by Shri S. Vaikuntarajan Managing Partner Keeraikaranthattu Thisaiyanvilai Tirunelveli District 627 657 .. Applicant

and

1. The Ministry of Environment and Forests (GOI) Rep. by its Director/MoEF/Member Secretary of Experts Appraisal Committee Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi- 110 003.

2. M/s. Indian Rare Earths Limited

Manavalakurichi Kanyakumari. .. Respondents

(Praying for to declare that the 1st Respondent is not entitled to recommend the

grant of Environmental Clearance in respect of a mining project in violation of

MMDR Act and MCR to wit, the requirement set out in paragraph (x) of Form J of

the MCR and consequentially set aside the recommendation made by the 1st

Respondent herein in paragraph 2.26 of its Minutes of Eighth Meeting of the

Reconstituted Committee of Experts Appraisal Committee for Environmental

Appraisal of Mining Projects constituted under EIA Notification 2006 and etc.,)

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Counsel Appearing: For Applicant : M/s. Srinath Sridevan, Advocate For Respondents: Shrimathi C. Sangamithirai, Advocate for respondent No.1, M/s. Ramasubramaniam Associates, Advocates, Chennai

JUDGMENT

Present:

(1) Hon’ble Shri Justice M. Chockalingam, Judicial Member

(2) Hon’ble Prof. Dr. R. Nagendram, Expert Member

Date: 24th February, 2014

_________________________________________________________________

(Hon’ble Shri Justice M. Chockalingam, Judicial Member)

Appeal No. 97 of 2013 (SZ)

This appeal is preferred challenging an order of rejection of the application

made by the appellant seeking Coastal Regulation Zone ( for short ‘ÇRZ’)

clearance in the 59th meeting of District Coastal Zone Management Authority of

Kanyakumari District shown as 2nd respondent held on 10th July 2013 and

communicated in Letter No. F-NGL-CRZ 01(161)/13 dated 19.07.2013.

2) Short facts necessary for the disposal of this appeal can be stated

thus:

The appellant, a full-fledged Govt of India undertaking and incorporated in

1950 is under the administrative control of the Department of Atomic Energy. It

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operates a number of mining plants across the country engaged in mining and

separation of beach sand minerals such as IIimenite, Rutile, Zircon, Monazite,

Sillimanite and Garnet apart from a number of value added products. This appeal

is concerned with only a portion of appellant’s mining lease area located at

Midalam and Manavalakurichi of Kanyakumari District. The appellant made

application for CRZ clearance under CRZ Notification, 2011 by the 1st respondent.

In respect of mining area totally measuring 44.6212 ha (a) 2978.12 ha falls under

deemed extension G.O. Ms. No. 1085 dated. 21.9.1977 and (b) 14.84 ha falls

under fresh mining lease grants – G.O. (3D) No. 74 dated 17.6.1998.

3) In 2007, an organization under the name the Coastal Environmental and

Ecological Conservation Committee filed a W.P. 5678/2007 in the High Court of

Madras seeking a writ of mandamus against the 2nd respondent to forbear the 9th

respondent “the appellant herein” from carrying on mining operations/activities at

Manavalakurichi, Kanyakumari District which fell within CRZ for not obtaining

clearance under CRZ Notification and also to direct the 4th respondent to withdraw

the consent, if any, granted . The appellant filed a detailed counter pointing out

that the Environment Impact Assessment (for short ‘EIA’) Notification 2006 and

CRZ 1996 Notification were not applicable to the mining operations for the

appellant at Manavalakurichi since the same was established long before the

issue of the said notifications. It was also stated that there have been no setting up

of facilities or expansion of the existing facilities after the said notification came

into force. However, by way of abundant caution, the appellant applied for

Environmental Clearance (EC) before the Ministry of Environment and Forests (for

short ‘” MoEF) under the EIA Notification, 2006. When the same was brought to

the notice of the High Court, the Writ Petition was disposed of with an order stating

that in the event of filing such application by the 9th respondent (the appellant

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herein), the 2nd respondent was directed to consider and pass orders on the same

in accordance with law after giving an opportunity to the writ petitioner. On receipt

of the order, it was noticed that the High Court had directed the 2nd respondent

namely the Chairman, Tamil Nadu Coastal Zone Management Authority and the

Secretary, Department of Environment and Forests, Government of Tamil Nadu to

pass orders on the application for clearance as and when filed. The clearance

under CRZ Notification, 1991 was to be granted by the MOEF, Government of

India who was also the authority for granting EC under EIA Notification, 2006.

Hence the appellant filed a Miscellaneous Petition in M.P.No.1 of 2010 seeking

modification of the earlier order dated 18th Oct 2010 and accordingly the said order

was modified directing the 1st respondent to consider and pass orders on the same

in accordance with law after giving an opportunity to the petitioner within a period

of 4 weeks from the date of submission of the application. In compliance of the

order, the appellant submitted 3 applications for clearance to MoEF for 4 mining

lease areas as follows:

(1) 29.78.12 ha : The mining lease was executed on 15.10.1979 and the

lease was under renewal with effect from 16.10.1999. The renewal

application in Form J was submitted on 16.10.1999 and it was under

deemed extension as per rule 24 b A(6) of the Miner Concession Rules,

1960.

(2) 14.84.0 ha: A fresh mining lease was granted to the appellant on

17.06.1998 for 20 years. The mining lease deed was not executed for

want of environmental clearance.

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(3) 141.22.69 ha: Existing mining lease granted on 12.08.1981 by the

Government of Tamil Nadu and under renewal with effect from

26.06.2004.

(4) 7.06.0 ha: This mining lease area was granted under the Government

order in Industries Department and the lease deed was executed on

31.08.1970. The Government of Tamil Nadu recommended renewal of

mining lease for a further period 20 years. Presently the same is under

deemed extension with effect from 31.08.2010.

4) The MoEF granted Terms of Reference (for short ‘ToR’) for all the

applications. In so far as the subject mining lease was concerned the ToR came to

be issued by the Ministry’s letter dated 16.05.2011. The TOR Nos. 9 and 10 read

as follows:

“9. Identification of CRZ area. A CRZ map duly authenticated by one of

the authorized agencies demarcating LTL, HTL. CRZ area, location of

the mine lease and other project activities with reference to CRZ,

coastal features such as mangroves, if any. Recommendations of the

State Coastal Zone Management Authority for the project should also

be furnished.

10. NOC from State Pollution Control Board as required under CRZ

Notification, 2011 should also be furnished.”

5) Since the CRZ Notification, 2011 superseded the CRZ Notification, 1991

the ToR required the appellant to seek also a recommendation from the State

Coastal Zone Management Authority. On receipt of the ToR, the appellant took

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steps for a comprehensive EIA for all the applications. Public hearings as required

by law were conducted. Thereafter, the appellant submitted the particulars of

compliance with the ToR to the MoEF. In so far as the requirement of favourable

recommendation from the State Coastal Management Authority under CRZ

Notification, 2011 was concerned, the appellant submitted 3 applications for 4

mining leases to the 2nd respondent through 1st respondent under cover of his

letter dated 9th February 2013. One of the applications submitted to the District

Coastal Zone Management Authority pertained to the subject mining lease area

namely 29.78 ha. and 14.84 ha together.

6) The Expert Appraisal Committee (for short ‘EAC’) of MoEF reviewed the

appellant’s EIA report during its meeting held on 27th and 28th June 2013 and

recommended for Environmental Clearance (EC) under EIA Notification, 2006 to

the appellant for all 4 mining leases subject to certain conditions including that

necessary clearance from the State Coastal Zone Management Authority should

be secured.

7) After the application for CRZ clearance was filed in February 2013, the

1st respondent by a letter dated 08.04.2013 forwarded a copy of the minutes of

56th meeting of the District Coastal Zone Management Authority (the second

respondent herein) held on 28.03.2013. The minutes reflected that the

consideration of the application was being deferred for want of (1) land ownership

documents, and (2) consent letters from the land owners of the subject mining

area for commencement of mining operation. Consequently, the 1st respondent

returned the application and requested the appellant to resubmit the application

with the above details. The appellant replied to the 1st respondent by his letter

dated 23.05.2013 stating that the CRZ Notification, 2011 or the prescribed

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application from (Form 1) did not mandate the furnishing of land ownership details

or consent from the land owners at the time of submission of application for CRZ

clearance. However, the appellant furnished the details of land ownership to the 1st

respondent. In so far as the extent of mining area in 29.78 ha is concerned, the

appellant owned 4.46 ha the 3rd respondent owned about 14.77 ha and the

balance is owned by other individual pattadars and some come under Government

poromboke land. The other extent in 14.84 ha is entirely owned by the appellant. It

was also informed to the 1st respondent that the appellant should furnish the

consent from the third party lands owners only at the time of commencement of

actual mining operation as per the Minor Mineral Development and Regulation Act,

1957 (for short ‘ MMDR Act, 1957’) and Mineral Concession Rules, 1960 (for short

‘MCR,1960). It is pertinent to note that the grant of CRZ clearance alone was not

sufficient requirement to commence the mining operation. The 1st and 2nd

respondents should not have insisted on furnishing the consent by the land

owners at a premature stage since the appellant has to necessarily obtain such

consent prior to commencement of the mining operation as required by the above

act and rules. It was not germane to the merits of the appellant’s application for

clearance under CRZ Notification, 2011. It is relevant to note that even EAC of

MoEF has recommended the grant of EC under EIA Notification, 2006 subject to

the condition that in the private patta lands which are not owned by the appellant,

the mining will be carried out only after obtaining the consent from the concerned

land owners as per the provisions of MCR, 1960 and MMDR Act, 1957. The

appellant was of the fond hope that the 2nd respondent would proceed to

favourably consider the application. But, the 1st respondent communicated to the

appellant by a letter dated 11.06.2013 referring to the objection letter dated

27.03.2013 by the 3rd respondent. A copy of the letter was not furnished to the

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appellant, but it was stated in the letter dated 11.06.2013 of the 1st respondent that

the 3rd respondent had filed a suit in O.S.No.83/2005 before the Sub Court,

Tirunelveli against the Tamil Nadu Government and obtained a judgment and

decree forbearing the Tamil Nadu Government from considering and granting any

mining lease to third parties in respect of the land belonging to 3rd respondent and

also that the 3rd respondent had already obtained CRZ clearance from MoEF on

21.03.2006 for the lands in S. Nos. 55/2A, 2B, 4, 9A, 56/3A, 4A, 5, 82/2A, 83/9A,

89/5, 90/1,2,3,4,5, and 91/1,2,3 in Keezhimadalam village, Vilavancode Taluk of

Kanyakumari District.

8) The 1st respondent after narrating of the objection by the 3rd respondent,

even without any consideration, scrutiny or analysis of the said objection

straightaway demanded the appellant to exclude those lands in the above

mentioned S. Nos. in respect of which the 3rd respondent had allegedly granted

CRZ clearance and in connection with O.S.No.83/2005 which was pending. The

appellant sent a detailed reply stating that the Sub Court’s order did not disable

the 2nd respondent from considering the application of the appellant on merits. It

was also stated that the grant of CRZ clearance to 3rd respondent for the land

falling within 29.78 ha extent did not handicap the appellant’s request for CRZ

clearance in respect of the very same land as it was the appellant alone who

enjoyed the mining rights for those lands by virtue of statutory deemed extension.

The appellant alone enjoyed the exclusive mining rights as on date for the subject

mining area. Though comprehensive details were given by the appellant, all fell on

deaf ears. But, the 1st respondent forwarded, by his letter dated 19.07.2013, the

minutes of the 59th meeting of the 2nd respondent held on 10.07.2013 which

reflected that subject application was rejected for the reasons that the appellant

had not furnished the consent of the 3rd party land owners for commencement of

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mining operation; that the CRZ clearance had already been given to 3rd

respondent for some of the lands in 29.78 ha extent; that the land dispute was

pending in respect of the land in 29.78 ha extent at the instance of the 3rd

respondent; that the appellant had no mining rights in view of the injunction issued

against the Government granting mining lease in respect of the lands of the 3rd

respondent to any 3rd party and that the appellant had not excluded those survey

numbers in respect of which the above qualifications were applicable.

9) It is pertinent to point out that the 1st respondent had rejected the

application even in respect of 4.84 ha which was entirely owned by the appellant

and in respect of which no 3rd party was required to give consent for

commencement of mining operation. No environmental or scientific objection was

raised so far to the appellant’s application for CRZ clearance in respect of the

subject mining area. Under the circumstances, the appellant was constrained to

file this appeal challenging the rejection of CRZ clearance application dated

09.02.2013.

10) The 1st respondent filed reply affidavit with the following

averments:

11) The appellant has established the industry for mineral processing at

Manavalakurichi in Kanyakumari District in the year 1965 for which he obtained

consent from the Tamil Nadu Pollution Control Board (for short ‘Board’) under the

Water (Prevention and Control of Pollution) Act, 1974 (for short ‘Water Act”) and

Air (Prevention and Control of Pollution) Act, 1981 (for short ‘Air Act’) for

manufacturing limonite, Rutile, Zircon, Monazite, Garnet, Zirconium Oxide,

Zirconium dry fit, Zirconium Oxy Chloride, and Zirconium fusion fit. At present the

unit is manufacturing limonite, Rutile, Zircon, Monazite, Garnet by separating the

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minerals from the beach sand. However, the unit has not obtained separate

consent for its mining activities. It filed an application for Clearance under Coastal

Regulation Zone Notification, 1991 for mining activities in Manavalakurichi,

Lakshmipuram, Colachel, Keezhmidalam, Midalam, Keezhkulam, Ezhudesam,

and Kollancode villages in Kanyakumari District in the year 2002 and the subject

was placed before the District Coastal Zone Management Authority, Kanyakumari

District at its meeting held on 11.09.2004 and the proposal was submitted to the

State Coastal Zone Management Authority along with the schedule II on

07.10.2004. Subsequently, the appellant/unit filed 3 separate applications for the

EC under EIA Notification, 2006 for its mining projects based on mining leases in

the year 2011. The MoEF requested the appellant/unit to conduct public hearing

and to obtain CRZ Clearance under CRZ Notification, 2011 and the consent of the

State Pollution Control Board. Accordingly, the unit applied for conducting public

hearing and the public meeting was conducted on 22.03.2013. The minutes of the

public hearing was submitted to the State Environment Impact Assessment

Authority (for short ‘SEIAA’) through the Tamil Nadu Pollution Control Board. The

appellant/unit submitted 3 separate applications to the District Coastal Zone

Management Authority, Kanyakumari District for CRZ Clearance under CRZ

Notification as follows:

Application 1 For Government lands (sea coastal poromboke) on the south of

S.Nos. 378, 379, 387, 388, 402, 403, 404 and 652 of Manavala-

kurichi village, Kalkulam Taluk, Kanyakumari District-

Area 7.06 ha.

Application 2 S.N os. 108,110,112,371,374,375,376 at Manavalakurichi

village, Kalkulam Taluk, 14.84 ha.

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S.N os. 56/2A, 2B,3A, 4B, 5A, 5B; S. No.55/2A, 2B, 3, 4, 5, 6,

9A, 9B, 10; S. No. 82/2B, S. No.83/9B, 9A part, 10A part; S.

No.89/5A part; S. No.90/1, 2, 3 45, 91/1 part, 2 part, 3 part, 4

part, and 5 part in Keezhmidalam village- 12.89.48 ha.

S. Nos. 181/1A, 1B, 2, 3, 4, 5; 182/1A, 1B, 2A, 3, 4, 5, 6; S. Nos.

S.No.180/1A,1B,2A,3,4,5,6; S. No.179/1 part, 2 part, 3, 4, 5, 6, 7

part, 8, 9, 10, 11A, 12A, 12B, 12C, S. No.178/1 part, 2 part, 3, 4,

5, 6, 7, 8A, 8B, 9, 10, 11, 12 part, 13, 14, 15, 16, 17. S. Nos.

177/3, 4, 5 part, S.No.164/1,2,3,4,5A,5B, 6A, 6B, 7A, 7B, 8, 9,

10, 11, 12, 13, 14, 15, 15; S. No. 166;/3 part, 4 part, 176/1 part,

2 part, 3 part; and S .Nos. 165, 163/1, 2, 3 of Midalam village,

Vilavancode Taluk- 16.88.64 ha.

Application 3 S. Nos. 100 to 105, 109, 111, 377 to 380, 384 to 392, 396 to

404, 410, 411, 650 to 654 of Manavalakurichi village, Kalkulam

Taluk.

S. Nos. 867/1, 2, 3, 4, 5; S. No.868/1, 2, S. No.787/1, 2, 3 , 4 of

Lakshmipuram village, Kalkulam Taluk.

T.S.No.D1-3 to 20, 21 part, 22, 23, 31 part of Colachel Town,

Kalkulam Taluk, Kanyakumari District.- 141.22.869 ha.

12) The applications for the consent of the Board were returned to the

appellant/unit for want of CRZ Clearance under CRZ Notification, 2011 and valid

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mining lease. The application submitted to the District Coastal Zone Management

Authority for CRZ Clearance under CRZ Notification, 2011 was placed before the

District Coastal Zone Management Authority in its 56th meeting conducted on

28.03.2013. The Committee decided to defer the subject for want of land

ownership documents and consent letters from the land owners of the mining

areas. The decision was communicated to the appellant/unit with a request to

furnish the land ownership documents and consent letters from the land owners.

The unit furnished the land documents and consent letters from all land owners in

the Application Nos. 1 and 3. The subject was placed before the District Coastal

Zone Management Authority in its 59th meeting on 10.07.2013. The Committee

decided to recommend the subject to the Tamil Nadu Coastal Zone Management

Authority and the proposal was submitted to the Tamil Nadu Coastal Zone

Management Authority. In so far as the Application No. 2, the unit submitted the

land ownership documents and consent letters from the land owners except from

the Respondent No.3.

13) The 3rd respondent raised objections stating that the 28.78 ha of his

land was included in the area claimed by the appellant/unit and he has not given

consent to the appellant/unit. Apart from that, the 3rd respondent had obtained the

CRZ Clearance under CRZ Notification for a portion of his land for carrying on the

mining activities. This fact was informed to the appellant with a request to furnish

fresh applications after deleting the lands owned by the 3rd respondent. But, the

appellant did not delete the lands owned by the 3rd respondent and the 3rd

respondent replied that the surface right of the land should be insisted only at the

time of actual mining operation. The appellant quoted a letter issued by the Under

Secretary, Ministry of Mines of the Government of India. A clarification was sought

for from the Deputy Director (Mines), Kanyakumari District who furnished a reply

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stating that the 3rd respondent had obtained an order from the Sub Court,

Tirunelveli in O.S.No.83/2005 restraining grant of mining lease to any third party

on the lands owned by them. Both the Tata Steel Limited and the appellant had

filed revision petition before the Hon’ble High Court in Madurai Bench against the

order of the Sub Court, Tirunelveli which was dismissed. Hence, the Deputy

Director (Mines) replied that the request of the appellant for CRZ clearance might

be considered only for the land owned by the appellant for which the appellant

obtained consent letters. The facts were placed before the District Coastal Zone

Management Authority in its 59th meeting held on 10.07.2013 when the Committee

decided to reject the proposal since the District Coastal Zone Management

Authority has considered the proposal furnished by the appellant as a whole and

cannot delete a portion of the proposal on its own and the same was informed to

the appellant and hence, suitable orders may be passed in the appeal.

14) The 2nd respondent filed reply affidavit with the following

averments:

15) The appellant applied for CRZ clearance under CRZ Notification, 1991

for mining activities in the year 2002 which was prior to the EIA Notification, 2006.

The subject was placed before the District Coastal Zone Management Authority in

the meeting held on 11.09.2004 and the proposals were submitted to the Tamil

Nadu State Coastal Management Authority on 07.10.2004. As per the ToR issued

by the MoEF, the appellant applied for conducting a public hearing for its mining

activities. Accordingly, the public hearing was conducted on 22.03.2013 and at the

time of the public hearing itself the 3rd respondent had raised objection for granting

EC to the appellant for the lands owned by the 3rd respondent. The appellant had

also filed 3 separate applications for CRZ clearance under CRZ Notification, 2011

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for mining operation and the same was placed before the Committee in its 56th

meeting held on 28.03.2013 and the Committee decided to defer the proposal for

want of land ownership documents and consent letters from the land owners of the

mining area. The decision was intimated to the appellant and the applications were

returned to the appellant requesting to resubmit along with the ownership

documents and consent letters from the land owners. The appellant resubmitted

the applications stating that furnishing of land ownership documents and consent

letters from the land owners was not mandatory at the time of filing the

applications under CRZ Notification, 2011. However, the appellant had submitted

the land ownership documents and consent letters from the land owners for the

applications made in 1 and 3. The appellant has claimed that the surface right is

not mandatory only in Serial No. 2 in the tabular column stated supra at the time

of filing application under CRZ Notification, 2011. It is necessary to point out that

the appellant had obtained the CRZ clearance under CRZ Notification, 1991 for a

portion of lands which were included by the appellant for carrying on the mining

activities. The 3rd respondent had also raised objection for granting the CRZ

clearance under CRZ Notification, 2011 to the appellant in respect of the lands

owned by the 3rd respondent. It is necessary to mention that the surface rights is

not mandatory for processing the application for mining lease only and it did not

mention anything about processing of the application under CRZ Notification,

2011. The contentions of the appellant made in paragraphs 23-30 are not correct.

16) The MCR, 1960 and the MMDR Act, 1957 provide ‘for a statement in

writing that the applicant has when the land is not owned by him obtained a

surface rights over the area or has when the land is not owned by him obtained

consent of the owner for staring mining operations.’ It is also further stated therein

that no further consent would be required in the case of renewal when the consent

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has already been obtained during the grant of lease. In the instant case, the 3rd

respondent who is the land owner raised objection for granting the environmental

clearance to the appellant. Hence, the contention of the appellant cannot be

accepted. The application of the appellant in Application No. 2 was placed before

the District Coastal Zone Management Authority in its 59th meeting held on

10.07.2013. The Committee deferred the proposal for want of land documents and

consent letters from the land owners. Apart from that, in view of the objection

raised by the 3rd respondent and also in view of the pendency of O.S.No.83 of

2005 before the Sub Court, Tirunelveli, which restrained the granting of lease to

third parties and the District Coastal Zone Management Authority can consider the

proposal only as a whole and cannot delete a portion on its own, the District

Coastal Zone Management Authority rejected the proposal submitted by the

appellant. In view of the all the above, the 2nd respondent prays that necessary

orders have to be passed.

17) The 3rd respondent filed the reply affidavit with the following

averments:

18) The appellant’s primary and only contention is that there is absolutely

no prohibition for a person to apply for a mining lease or renewal thereof in some

one’s land and all that is required is to obtain that person’s consent before

commencing actual mining operation and it is on this basis that it is contended that

the Tamil Nadu Coastal Zone Management Authority erred in rejecting the

appellant’s CRZ clearance application. In G.O. Ms. No. 1085, Industries

Department dated 21.09.1977, the appellant was granted a mining lease over an

extent of 27.78.12 ha in Keel Midalam and Midalam villages in Vilavancode Taluk

of Kanyakumari District from 15.10.1979 to 14.10.1999 and the appellant’s case is

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that it applied for renewal on 16.09.1998 and when the application for renewal was

not rejected by virtue of rule 24 A (6) of MCR,1960, the appellant is entitled to

deemed extension of the mining lease. But, the lands in respect of which the

appellant has applied for renewal of its mining lease do not at all belong to the

appellant, but to various individuals including the 3rd respondent. The real

question is whether the appellant can obtain a renewal of the mining lease over a

third party’s land. The 3rd respondent owns land in the specified survey numbers

as noted in paragraph 4.4 of the reply affidavit in Keezhmidalam village and

Midalam village and objected to the grant of any kind of CRZ clearance and

refused to give consent for the appellant to undertake any mining activity over the

lands of the 3rd respondent. The Tahsildar, Padmanabapuram also recorded the

fact that barring a minor extent of land, the rest of land was owned by private

pattadars and the appellant had not obtained any consent from any of those

persons. Further, the 3rd respondent had already applied for and obtained CRZ

clearance for undertaking mining activity in S. Nos. 178/10, 178/11, 179/9, 179/10,

179/11, 113/1(part), 115/3B, 115/3C, 115/3D, 115/5, 115/6A, 115/10 (part), and

the same was granted in Letter No. F.No.J17011/44/98-IA-III, dated 12.11.2003

issued by the MoEF and for this reason also the 3rd respondent opposed the grant

of CRZ clearance in respect of these lands. Apart from the 3rd respondent, the

farmers who were cultivating lands also opposed to the grant of any clearance to

the appellant for its proposed mining activity. Meanwhile, on 21.03.2000, the 3rd

respondent filed mining lease application in their patta lands over an extent of

3.63.0 ha in S. No. 113 and 115 of Midalam villages in Vilavancode Taluk.

Thereafter, the 3rd respondent filed another mining lease application over an

extent of 321.09.0 ha in Keel Midalam, Midalam, Keel Kulam villages in

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Vilavancode Taluk including lands belonging the 3rd respondent over which the 3rd

respondent is having a prior mining lease. On 10.03.2004, the Government of

Tamil Nadu granted mining lease to the appellant over an extent of 3.63 ha in

S. Nos. 113 and 115 of Midalam village. The 3rd respondent preferred a revision

against the order passed by the Government of Tamil Nadu. On 05.10.2004, the

revisional authority set aside the order passed by the Government of Tamil Nadu

and directed the Government to consider the mining lease application submitted

by the appellant afresh. The appellant preferred W.P. 31885 of 2004 before the

Hon’ble Madras High Court challenging the order passed by the revisional

authority dated 05.10.2004. As on date, the mining lease application of the

applicant both in respect of 3.63 ha and 321.09 ha are pending. The appellant is

therefore, attempting to spin out his theory that the mining lease can be granted

over the lands of others. This theory is against the mining laws. In this case, the

reference to rule 22(3) of the MCR, 1950 will be of no avail to the appellant as he

never obtained the consent from the land owners at the time of grant of original

lease. Right from the year 1850, the law in this country has been that the

proprietor of the land is the owner of all the sub surface minerals. Most recently,

the Hon’ble Supreme Court of India in C.A. Nos. 4540-4548 of 2013, held on

08.07.2013 that there is nothing in the law which declares that all mineral wealth of

sub -soil rights vest in the State. On the other hand, the ownership of sub-

soil/mineral wealth should normally follow the ownership of the land, unless the

owner of the land is deprived of the same by some valid process. It is this legal

position which is recognised and reiterated in rule 22 of the MCR (with respect to

applications for lease) and rule 24 A of the MCR (with respect to applications for

renewal of lease). Under rule 24 A of the MCR, an application for renewal of the

19

lease should be in Form J, a statutory form, and therefore must be strictly

complied with. Paragraph (x) of the From J reads as under:

“(x). Brief description of the area with particular reference to the

following:

(a) Does the applicant has surface right over the area for which he is

making an application for grant of a mining lease.

(b) If not, has he obtained the consent of the owner, and the occupier

of the land for undertaking mining operation. If so, the consent of

the owner and occupier of the land be obtained in writing and be

filed.

19) Therefore, a person is not even entitled to apply for a mining lease

or renewal of lease in respect of a particular piece of land unless and until he

possess either (a) the surface rights over that piece of land or (b) the consent

of the holder of such surface rights. Therefore, a conjoint reading of the above

would make it clear that the appellant’s contention that he can get post facto

consent from the landowners is legally wrong.

20) By the year 2005, the appellant began giving out that they would

usurp the leases obtained by the 3rd respondent and since the 3rd respondent

apprehended that the mining leases would be granted to third parties over the

lands belonging to it, the 3rd respondent filed a civil suit in O.S.No.83/2005 for

enforcement of its surface rights in the minerals lying in its lands. The 2nd

respondent herein sought to implead himself in the said proceedings, but the

said application was dismissed by the Hon’ble Madurai Bench of Madras High

Court on 24.03.2006. The suit also came to be decreed subsequently.

20

21) The 3rd respondent was keen to safeguard its rights over the lands

owned by it by ensuring that no third party, such as the appellant herein, was

granted any kind of mining related approvals over the lands owned by it.

Especially, the 3rd respondent was keen to ensure that no EC is applied for or

granted to any third party in respect of the lands belonging to the 3rd

respondent, since that would jeopardize its rights in the event of the 3rd

respondent seeking an EC in respect of its own lands. Till date, the appellant

has neither applied to the 3rd respondent for any consent as envisaged in

paragraph (x) of the application for mining lease or renewal thereof. An

applicant for mining lease/renewal of lease must possess surface rights.

Otherwise, they are not even entitled to apply for a mining lease/renewal.

Therefore, the theory which is propounded that post facto consent from the

surface right owners can be obtained prior to actual mining is a bogus theory

and is against law. The appellant has not filed the mining lease and renewal

application in the prescribed form accompanied by the prescribed statutory

requisite documentary evidences. The appellant alleged that they have

applied for renewal of mining lease in respect of entire survey number which

also comprises area to which mining lease granted to the 3rd respondent. In

other words, the lands in S.Nos. 178/10, 178/11, 179/9, 179/10, and 179/11

do not belong to the appellant and the lands are owned by the 3rd respondent.

22) In the matter of Pallava Granites vs Government of Andhra

Pradesh (AIR 1997 SC 209), the Hon’ble Apex Court has held as follows:

“The right to excavate mines from the land of private owner is

based on the agreement; unless the lessor gives his consent,

no lessee has a right to enter upon his land and carry on mining

21

operation. The right to grant mining lease to excavate the mines

beneath the surface is subject to the agreement of the land

owners. Therefore, with a view to ensure that there will not be

any obstruction in working of the mining lease and also for the

peaceful operation to the excavation of the mines, insistence on

the consent of the landlord is necessary.”

23) This principle enunciated with respect to the lessors and the lessees

applies a fortiori to land owners and third parties. The unreported judgment of the

Madras High Court in S. Ramasamy vs Union of India in W.P. No. 3091 of 2010

dated 29.09.2010 proceeds further that the reading of rule 22 (3) (h) and Rule 24

A of the MCR would make it clear that a consent once given, cannot continue

forever and that separate express consent should be obtained for renewal of

mining lease. Hence, the entire application submitted by the appellant is invalid in

the eye of law. While filling the application for EC, the appellant has described the

property instead of describing the properties by survey numbers, given only the

latitude and longitude of the land since if the survey numbers are shown, it would

be very easy for the 3rd respondent to demonstrate that he is the owner of the

lands in question and the appellant is not the rightful lessee of the lands. It is an

admitted fact by the appellant that it had not carried out any mining operations for

the whole lease period of 20 years. As per section 4A (4) of the MMDR Act, 1957

the mining lease automatically lapsed. The appellant did not file the application for

revival of the lease within a period of 6 months from the date of lapse of the mining

lease. The Appellant had not taken any steps to process his renewal application

from the year 1999, on the reasons of the appellant enjoying the deemed

provisions under rule 24 A (6) of the MCR. As such, the 3rd respondent has

already obtained EC for the lands owned by the 3rd respondent for the existing

22

mining lease as well as pending lease application and hence for all the above

submissions the Tamil Nadu Coastal Zone Management Authority has acted

validly, properly and in correct exercise of powers in rejecting the appellant’s

application for CRZ clearance and there is nothing perverse, capricious or fanciful

in the order warranting any interference of the Tribunal and the 3rd respondent

seeks to dismiss the appeal.

Application No. 419/2013:

24) The applicant herein has sought for a declaration that the EAC of the 1st

respondent, MoEF is not entitled to recommend the grant of EC in respect of the

mining project in violation of MMDR, 1957 and MCR, 1960 and consequently to

set aside the recommendation made by the 1st respondent in its 8th meeting of the

reconstituted committee of the EAC for environmental appraisal of the mining

project constituted under EIA Notification, 2006 with the following averments:

25) The applicant, namely V.V. Minerals owns several extents of lands in

Kanyakumari District in respect of which mining leases have been granted for the

mining of beach sand minerals and those leases are subsisting. The 2nd

respondent, namely M/s. Indian Rare Earths Ltd., was also granted certain leases

in respect of certain adjacent lands and the period of mining leases for those lands

came to an end. The mining activities of the applicant and the 2nd respondent are

governed by the MMDR Act, 1957. According to section 4 of the said Act, any

person desirous of undertaking mining activity should do so only after obtaining

mining lease as per the rules. Rule 22 of MCR, 1960 refers to the requirement of a

person to have a lawful right over the land in respect of which mining activities are

to be carried on. It requires a scrutiny of an application for a mining lease and

grant thereof. It also prescribes that the application should only be in Form I. In the

23

instant case, the question involved is in respect of an application for renewal of

mining lease. Under Rule 24 A, an application for renewal for lease should be in

Form J, a statutory one, which must be strictly complied with. Form J requires in

paragraph (x) a brief description of the area with particular reference to the

following:

(a) Does the applicant have surface right over the area for which

he is making an application for grant of a mining lease.

(b) If not, has he obtained the consent of the owner, and the

occupier of the land for undertaking mining operation. If so, the consent

of the owner and occupier of the land be obtained in writing and be

filed.

26) Thus, it would be clear that a person is not entitled for mining lease or

renewal of lease in respect of a particular piece of land unless and until he

possesses either surface rights over the piece of land or consent of the holder of

such surface rights.

27) The 2nd respondent applied to the 1st respondent/MoEF for EC for

increasing his production capacity from 90,000 TPA to 1,50,000 TPA showing the

very same land in the application. The application was rejected on 22.10.2008 and

the 2nd respondent remained silent for few years. The officials of the 2nd

respondent were giving out that they would usurp the lands obtained by the

applicant. Apprehending that the mining lease would be granted over the

applicant’s land to third parties, the applicant filed a suit in O.S.No.83/2005 for

enforcement of surface rights in the minerals lying in his lands. The application

filed by the 2nd respondent seeking impleadment was dismissed by the Hon’ble

Madurai Bench of the Madras High Court. Subsequently, the said suit was

24

decreed. Till date the 2nd respondent has not applied to the applicant nor has the

applicant given any consent for mining lease or renewal of the mining lease in

favour of the 2nd respondent. An application for mining lease/renewal of lease

should possess surface rights. Otherwise, they are not entitled to apply for the

same. Hence, the theory that consent from the surface right owners can be

obtained prior to actual mining is against law.

28) When the 2nd respondent applied for EC in respect of the very same

lands and sought for issuance of ToR, one Non Governmental Organisation called

‘Coastal Environmental and Ecological Conservation Committee’ filed a PIL

against the 2nd respondent in W.P.No.5678 of 2007 before the Madras High Court

and the Hon’ble High Court by an order dated 18.10.2010 passed the following

orders:

“In the event of ... such filed by the 9th respondent (the 2nd respondent

herein), the 2nd respondent is directed to consider and pass orders on

the same in accordance with law after giving an opportunity to the writ

petitioner.”

29) By a subsequent order the word “R2” was replaced with the words “R1”

who is the 1st respondent herein. The 1st respondent passed an order on

16.05.2011 stating that the concerns raised by the public must be properly

addressed and accordingly prescribed 35 new items for inclusion in the ToR. Of

these 35 points, the following are relevant:

“3. A copy of the documents in support of the fact that the proponent is

the rightful lessee of the mines should be given.

25

34. Details of litigations pending against the project, if any with

directions/orders passed by any Court of law against the project should

be given.”

30) It is pertinent to point out that the 2nd respondent did not comply with

the directions. Instead, the 2nd respondent filed an application for clearance on

09.02.2013 and in parallel he also applied to the 1st respondent for EC. The 1st

respondent took up the application for consideration without awaiting CRZ

clearance from the Tamil Nadu Coastal Zone Management Authority before taking

up the issue for consideration. It chose to hastily proceed to dispose of the matter.

While the matter stood thus, the Tamil Nadu Coastal Zone Management Authority

has rejected the application of the 2nd respondent which is a subject matter of the

Appeal No.97 of 2013 (SZ) pending on the file of this Tribunal. It is also pertinent

to point out that according to the amendment made in the EIA Notification on

01.12.2009 in column No. 6 of Appendix I, the following is found:

“Note: The projects involving clearance under CRZ Notification, 1991

shall submit with the application, a CRZ map duly demarcated by one of

the authorised agencies showing the project activities with reference to

CRZ (at the stage of TOR) and the recommendation of the State

Coastal Zone Management Authority (at the stage of environmental

clearance).”

31) Thus, the EAC is liable to check for availability of the CRZ approval

before making their recommendation to the MoEF. However, the EAC erroneously

made their recommendations without checking the CRZ approval. At that juncture,

the applicant submitted a detailed objection to the 1st respondent on 25.06.2013

stating the lands in respect of which the EC was sought for were the lands over

26

which the 2nd respondent did not have the valid lease. Apart from that, the applicant

had also placed on record the materials to show that there were litigations on the

very same lands. The same was not disclosed by the 2nd respondent while applying

for EC.

32) On the date of hearing, the applicant was also present before the 1st

respondent with his counsel and was ready to make his submissions. The

representative of the Coastal Environmental and Ecological Conservation

Committee was also present to espouse the case of the public. When they were

ready to make their submissions, the representative of the applicant was directed

to go out of the hall; otherwise, they would be forcibly evicted by the security

personnel. The letter of the applicant’s counsel is filed to prove the said fact.

Subsequently, the representatives of the Coastal Environmental and Ecological

Committee were forcibly evicted. Thereafter, the 1st respondent hastily proceeded

to decide the application of the 2nd respondent favourably by the impugned order.

There is a recording that in respect of the private patta lands, which were not

owned by the 2nd respondent, mining could be carried out after obtaining the

consent from the land owners. The impugned order was not communicated to the

applicant and the applicant came to know about the impugned order only when the

2nd respondent preferred the Appeal No. 97 of 2013 (SZ) before this Tribunal.

Under such circumstances, the applicant has filed the application under the

National Green Tribunal Act, 2010 seeking the above declaration and

consequential relief.

33) On the pleadings placed by the parties the following points are

formulated for decisions:

27

Appeal No. 97 of 2013 (SZ):

1) Whether the order of rejection of the CRZ clearance to the appellant

made in F-NGL-CRZ 01(161)/13 dated 19.07.2013.by the 2nd respondent/DZCMA

is liable to be set aside on all or any of the grounds set out in the appeal.

2) Whether the appellant is entitled for the consequential relief of the CRZ

clearance on the application made by the appellant dated 09.02.2013 under CRZ

Notification, 2011.

3) Whether the appellant is entitled to any other relief.

Application No. 419 of 2013 (SZ):

1) Whether the applicant is entitled for a declaration that EAC was not

entitled to recommend for the grant of EC in respect of the mining project of the

appellant in violation of the MMDR, 1957 and MCR, 1960 and consequently the

impugned recommendations made by the EAC is liable to be set aside in respect of

the subject mining project of the appellant.

2) Whether the applicant is entitled to any other relief.

34) As could be seen above, the appellant namely the Indian Rare Earths

Ltd., has preferred the appeal challenging an order of rejection of its CRZ

clearance application dated 09.02.2013 while the 3rd respondent in the appeal has

sought for a declaration that the recommendation made by the EAC of MoEF-I.A.

Division in paragraph 2.26 of the minutes of Eighth Meeting of the Reconstituted

Committee of EAC for Environmental Appraisal of the mining project constituted

under EIA, 2006 is not valid since it is in violation of MMDR, 1957 and MCR, 1960

28

and consequently to set aside the same. On the request made by the parties, both

in the Appeal No. 97 of 2013 (SZ) and the Application No. 419 of 2013 (SZ) were

taken up for a joint enquiry for the sake of convenient discussion. The applicant in

Application No. 419 of 2013 (SZ) will be termed as the 3rd respondent. The 1st

respondent in the application, MoEF will be termed as MoEF and the 2nd

respondent in the application will be termed as the appellant. The parties in Appeal

No. 97 of 2013 (SZ) will be called as it is as shown in the appeal.

35) On completion of the pleadings in both the appeal and application, the

parties placed their documentary evidences. The parties were given sufficient

opportunity to place the submissions. The written submissions made by the parties

were also taken on record.

36) The Tribunal paid its anxious consideration on the submissions made by

the learned counsel on either side and also looked into all materials available.

Admitted facts which would emerge from the pleadings and available materials can

be stated as follows:

37) The appellant, a full-fledged Govt of India undertaking and incorporated

in 1950, is under the administrative control of the Department of Atomic Energy. It

operates a number of mining plants across the country engaged in mining and

separation of each sand mineral such as Iimonite, Rutile, Zircon, Monazite,

Sillimanite and Garnet apart from number of value added products. Equally, the 3rd

respondent owns large extent of lands in Kanyakumari District in respect of which

mining leases have been granted for the mining of beach sand minerals. The

appellant submitted 3 applications for clearance to MoEF for 4 mining lease areas

as follows:

29

1. 29.78.12 ha : The mining lease was executed on 15.10.1979 and

the lease was under renewal with effect from 16.10.1999. The

renewal application in Form J was submitted on 16.10.1999 and it

was under deemed extension as per rule 24 A (6) of the Miner

Concession Rules, 1960.

2. 14.84.0 ha: A fresh mining lease was granted to the appellant on

17.06.1998 for 20 years. The mining lease deed was not executed

for want of environmental clearance.

3. 141.22.69 ha: Existing mining lease granted on 12.08.1981 by the

Government of Tamil Nadu and under renewal with effect from

26.06.2004.

4. 7.06.0 ha: This mining lease area was granted under the

Government order in Industries Department and the lease deed

was executed on 31.08.1970. The Government of Tamil Nadu

recommended renewal of mining lease for a further period 20

years. Presently, the same is under deemed extension with effect

from 31.08.2010.

38) The MoEF granted ToR for all the applications. In so far as the subject

mining lease was concerned, the ToR came to be issued by the Ministry’s letter

dated 16.05.2011. The ToR Nos. 9 and 10 were to the effect for furnishing the

recommendation of the State Coastal Management Zone Authority (for short

‘SCZMA’) and also a No Objection Certificate from the State Pollution Control

Board. The CRZ Notification, 2011 which superseded the CRZ Notification, 1991,

made it clear that under Clause 4 (1) (b), the projects which are listed under the

notification also attract EIA Notification, 2006, for such projects clearance under

EIA Notification only shall be required subject to being recommended by the

30

concerned State/Union Territory Coastal Zone Management Authority. Thus, a

necessity arose for the appellant to seek a recommendation from SCZMA. On

receipt the ToR, the appellant took steps for an EIA study in respect of all

applications and also public hearing. Following the same, appellant submitted a

compliance of ToR to MoEF. Apart from that, the appellant made 3 applications for

the above for 4 mining lease areas to the 2nd respondent through the 1st

respondent, dated 09.02.2013. One of those 3 applications submitted to the

DCZMA is the subject mining lease areas in 29.78 ha and 14.84 ha together.

While the matter stood thus, the Environmental Appraisal Committee (for short,

EAC) of MoEF, on the strength of the appellant’s EIA report, during its meeting

held on 27 and 28.06.2013 recommended that the EC under EIA Notification, 2006

could be granted to the appellant for all 4 mining lease areas subject to certain

conditions. One of those conditions was that necessary clearance from SCZMA

should be secured. It is in respect of the recommendation made by the EAC of

MoEF- I.A. Division in the paragraph 2.26 of the minutes of Eighth Meeting of the

Reconstituted Committee of EAC for Environmental Appraisal of the mining project

constituted under EIA, 2006 for grant of EC to the appellant in respect of the

subject matter mining lease area the 3rd respondent has sought for a declaration in

his application as invalid.

39) After the receipt of the applications for CRZ clearance which were made

in February 2013, the DCZMA/ the 2nd respondent in its 56th meeting held on

28.03.2013 deferred the application concerning with the subject matter mining

lease area for want of land ownership documents and consent letters from the

land owners of the subject matter mining lease area for commencing the mining

operation. The 1st respondent/ District Environmental Engineer of the Tamill Nadu

Pollution Control Board returned the said application requesting the appellant to

31

resubmit the application with details as found in the minutes of the 56th meeting of

the DCZMA. The appellant issued a reply by way of letter dated 23.05.2013 that

the particulars asked for were not necessary for the clearance of application for

CRZ. However, the appellant furnished details in respect of the land ownership of

the subject matter mining lease area to the 1st respondent. At this juncture, it is

pertinent to point out that it is admitted by the appellant that in so far as 29.78 ha,

which is the subject matter mining lease is concerned, the appellant owned 4.46

ha. The 3rd respondent owned 14.77 ha and the balance is owned by other

individual pattadars and some come under Government poromboke land. Thus, it

would be abundantly clear that the appellant while making the application was not

the owner of the entire extent of the subject matter mining lease area, but only a

part of it. It is also admitted by the appellant that the part of the extent belonged to

3rd respondent.

40) It is not in controversy that the 3rd respondent filed a civil suit in O.S.No.

83/2005 before the Sub Court, Tirunelveli with the prayer that the grant of mining

lease should not be made in favour of a 3rd party. The lands which were shown as

belonging to the 3rd respondent in O.S.No. 83/2005 included the part of the land of

the subject mining lease area and the suit came to be decreed. Though an appeal

was preferred therefor, no stay of the decree given by the Sub Court was granted

by the District Court. The 3rd respondent on coming to know that the application

filed by the appellant for CRZ clearance was pending, the 3rd respondent raised

his objections stating that the extent of 29.78 ha of that land was included in the

appellant’s project and the 3rd respondent had not given any consent letter to the

appellant and also the 3rd respondent already obtained CRZ clearance from MoEF

in the year 2006 for some part of their land along with a request of the 3rd

respondent to delete the lands of 3rd respondent from the appellant’s project.

32

Though the same was communicated to the appellant the appellant was not ready

to delete the same. Under the stated circumstances, the DCZMA made an order of

rejection of application made by the appellant, in its 59th meeting held on

10.07.2013. The said rejection is the subject matter of the Appeal No. 97 of 2013

(SZ) herein.

41) The appellant has challenged an order of rejection of the application

made seeking CRZ clearance in respect of the subject mining lease area. The

application was made on the strength of the recommendations made by

EAC/MoEF-I.A. Division in paragraph 2.26 in minutes of the 8th meeting of the

reconstituted EAC for mining projects. The said recommendation made by the 1st

respondent is challenged by the 3rd respondent by way of an application before

this Tribunal and hence, it would be proper to consider the question whether the

grant of recommendations suffers in law and in fact as contended by the 3rd

respondent/applicant before adverting to the contentions put forth in the appeal.

42) The appellant has categorically admitted that when the application was

made in respect of 29.78 ha which is the subject matter mining lease area, the

appellant owned 4.40 ha; 3rd respondent owned 14.77 ha and the balance owned

by other individual pattadars. It is not the case of the appellant that in respect of

the lands owned by the 3rd respondent and others i.e., except the land owned by

the appellant, the appellant had obtained consent of the land owners at any point

of time during the duration of the lease period. Such a case was neither pleaded

nor substantiated by any evidence. On the contrary, the 3rd respondent has raised

his objections stating that he owned specific extent of the land covered in the

application made by the appellant even while he applied for EC. There is evidence

to indicate that he filed a suit in O.S.No.83/2005 before the Sub Court, Tirunelveli

33

that the land belonged to the 3rd respondent should not be considered in favour of

a 3rd party for grant of the mining lease. It is not disputed that the part of the land

in respect of which EC was sought for by the appellant for mining operations was

shown as one of the subject matter land in the said suit. The injunction which was

originally granted in the said suit became final when the suit was decreed. . It is

also contended by the 3rd respondent that no stay of operation of decree was

granted by appellate forum. Thus, it would be quite clear that an injunction

restraining the consideration in favour of third parties for grant of mining lease

continue to be in force. The contentions put forth by the learned counsel for the

appellant that the said suit was in respect of right to property and has nothing to do

either with the grant of EC or with consideration of its application for the CRZ

clearance, though attractive at first sight does stand to the scrutiny of law. What

are all contended by the learned counsel for the appellant is that the requirement

of obtaining consent from the 3rd party land owners for commencement of mining

operations pursuant to the grant of mining lease in respect of 14.84 ha or by virtue

of renewal as in the case of 29.78 ha can arise only immediately prior to

commencement of actual mining operations and not at the time of applying for

renewal. In order to substantiate his contentions, the learned counsel relied on the

rule 22(3) (1) (h) of MCR 1960. It is also contended by the learned counsel for the

appellant that the 3rd respondent cannot be aggrieved by the impugned

recommendations as its rights have been fully protected and the appellant cannot

start mining operation on the lands of 3rd respondent without his consent as this is

made clear in the recommendations, nor it can do so without necessary clearance

of Tamil Nadu Coastal Zone Management Authority (for short ‘TNCZMA). Thus,

the rights of the 3rd respondent are not abridged or interfered with in any manner

and they have been duly protected by the EAC recommendations. Pointing to

34

paragraph 7 in respect of the stages in the prior EC process for new projects in

EIA, 2006, the counsel would submit that in so far as the appraisal is concerned,

on conclusion of the proceedings, the EAC should make categorical

recommendations to the regular authorities either for the grant of prior EC on

stipulated terms and conditions or reject the appraisal and thus the notification

would make it clear that it enables the EAC to make conditional recommendations

as has been done in this case. Thus, there is no scope for insistence of land

owners’ consent at the stage of the EC under EIA Notification, 2006. The EC in

this instant case was granted subject to obtaining of consent from the private patta

land owners before commencing the mining operations. The 3rd respondent was

represented by his Managing Partner during the public hearing proceedings of the

EC and also filed his objections. Thereafter, the appellant submitted the final

EIA/EMP reports to the MoEF on 08.05.2013 after incorporating the issues raised

by the public including the 3rd respondent along with a detailed reply. Based on the

report submitted by the appellant, the MoEF fixed the EC application for

consideration on 27.06.2013 and 28.06.2013. While the appellant’s

representatives made technical presentation before the EAC on the aforesaid

dates, the counsel for the 2nd respondent were also present on 27.06.2013. When

the applications for the appellant were scheduled for consideration, the members

of the EAC informed that lawyers were not required to attend the technical meeting

when only the Project Proponent was expected to complete the presentation of the

project and the counsel for the appellant was informed that they would be called in

only when legal submissions were required during the course of the day. Equally,

when the counsel for the 3rd respondent and Coastal Environment and Ecological

Conservation Committee requested to be heard when the technical presentation

was commenced, they were informed that the respective written objections were

35

already received and they would be heard after the technical session concluded.

But, both the 3rd respondent and the Coastal Environment and Ecological

Conservation Committee were present. Now, the 3rd respondent complains that he

was denied the opportunity of being heard. Thus, the EAC after a thorough

scrutiny of the final EIA and EMP reports which took into account all the terms and

conditions specified in the ToR and after a thorough application of mind, made its

recommendations and thus the 3rd respondent cannot have any grievance to

ventilate either in law or on facts in respect of the recommendations that the

request of the 3rd respondent for a declaration that the recommendation of EAC

was not in accordance with law has to be rejected.

43) Countering the contentions put forth by the appellant’s side, the counsel

for the 3rd respondent would submit that the appellant originally obtained the

mining lease over an extent of 27.8.12 ha for a period from 15.10.1979 to

14.10.1999. But, the appellant was not the owner of the entirety of the land

covered by the lease. Neither there was pleading nor evidence that the appellant

has obtained the consent from the land owners at any point of time during the

period of lease. The lease came to an end on 14.10.1999. When the appellant

made application for renewal of the lease on 16.09.1998, the 3rd respondent was

the owner of the land which was subject to renewal. But the appellant has not

pleaded or averred that he has consent for such renewal. The contention of the

appellant is that he was entitled to renewal even without consent of the owner and

hence he could seek EC for land mining. Even in the year 2000, when the

appellant applied for EC initially, the 3rd respondent raised his objections. In the

meanwhile, the State Government instead of renewal in respect of the full extent of

land sought for by the appellant, granted only in respect of the portion in which the

appellant has title. The same was challenged before the Central Government.

36

Though the same was allowed and remanded, they are all pending consideration.

While the matter stood thus, the EAC examined the appellant’s application for EC

at its meeting held on 26.02.2011. The MoEF issued ToR along with a number of

conditions of which 2, 3 and 4 are relevant for the purpose of this case. Condition

No. 3 specifically directed the appellant to produce evidence of lawful possession

of lease properties over which he was seeking clearance. But, the same was not

produced. Even in the public hearing on 13. 5 .2013, the 3rd respondent raised

objections. During the meeting of the EAC, the 3rd respondent was not given an

opportunity. But the minutes of the meeting of EAC dated 26.06.2013 would

disclose that the objections of the 3rd respondent were available. But, they were

never considered. On the contrary, the EAC made the recommendations giving a

go-bye to the earlier condition imposed in the ToR. The learned counsel

emphatically stressing that the EAC should not have given the recommendations

for the grant of EC without the production of evidence of the consent of the 3rd

respondent which was a condition precedent and thus the recommendations

would suffer and got to be declined. In order to substantiate his contentions, the

learned counsel took the Tribunal to the relevant part of the ToR, the

recommendations made by EAC and also the different rules in MCR, 1960.

44) The counsel placed reliance on (i) W.P.No. 3091 of 2013, S. Raman vs.

Union of India, (ii) Pallava Granites vs. State of Tamil Nadu, AIR 1997 1081. It

could be seen from a communication addressed by MoEF to the appellant/Indian

Rare Earths Ltd., dated 16.05.2011 that it was in response to the application made

by the appellant along with a copy of prefeasibility report to obtain a ToR to

undertake a EIA study for the purpose of obtaining EC under EIA Notificiation,

2006 in respect of mining of rare minerals in CRZ area located at Manavalakurichi,

Midalam, Keezhmidalam villages in Kanyakumari District. It is also seen from the

37

communication dated 16.05.2011 of the MoEF addressed to the appellant that the

proposal for renewal of lease mine which fell due in October 1999 and addition of

another lease area.

45) It is admitted by the parties that the renewal application in respect of the

EC was sought for also included the subject matter mining lease area. While

prescribing the ToR, the MoEF made the conditions of which the following pertain

to the subject:

2. All the issues raised in the petition of the Coastal Environment and

Ecological Conservation Committee should be addressed in the

EIA report and point wise details and how it has been complied

with/addressed should be given.

3. A copy of the document in support of the fact that the proponent is

the rightful lessee of the mine should be given.

4. All documents including approved mine plan, EIA and public

hearing should be compatible with one another in terms of the

mine lease area, production levels, waste generation and its

management and mining technology and should in the name of

the lessee.

46) It is pertinent to point out that the document in support of the fact that

the Project Proponent, namely the appellant was the rightful lessee of the mine

should be given. One would reasonably hope that such a condition imposed by

the MoEF in the ToR was meaningful, relevant, and significant. It is not only

reasonable, but the production of a document to substantiate that the Project

38

Proponent is the rightful lessee of the mine was a condition precedent. If not such

a condition is imposed, anybody for that matter without any right or even a

trespasser, who is not in lawful possession can make an application and ask for

EC for mining in other man’s land. Pursuant to said ToR, a public hearing was

conducted on 13.05.2013. The representative of the 3rd respondent who was

present at the public hearing raised the objection that the appellant was not the

owner in respect of the entire extent, but the 3rd respondent had ownership in

respect of a part of the land. The same was also recorded in the minutes of the

public hearing. Naturally, at the time of consideration whether to grant EC or not

by MoEF, the entire proceedings of the public hearing should have been placed.

In its reconstructed Committee of EAC for environmental appraisal of the mining

projects during 26th to 28th June, 2013, the subject matter was taken for

consideration. Paragraph 2.26 reads as follows:

“ ****

The proposal was considered by EAC in its meeting held during 23rd-

25th February 2011 to determine ToR for undertaking detailed EIA

study. The TORs were issued by the MoEF vide letter No. J-

11015/62/2011-IA.II(M), dated 16th May 2011. While granting TOR, it

was informed to the Committee that the proposal is a Category B

project; however, it was decided to consider the proposal in MoEF

because of adjoining mining leases of the same Project Proponent

being dealt with at the Centre. The total mine lease area is 44.6212 ha,

spread over the said two leases of 29.7812 ha (existing lease) and

14.84 ha (fresh lease). No forest land is involved. The total production

from both the leases put together will be 0.4 million TPA of beach sand

39

mineral (Iimonite, Rutile, Zircon, Monozite and Garnet). The area is

located in CRZ.

******

The Public Hearing was conducted at Revenue Divisional Office.

Padmanabhapuram, Kanyakumari District on 22.03.2013. The PH was

chaired by Sri Palanisamy, District Revenue Officer (ADM rank). The

issues raised during PH were discussed by the Committee specifically

with reference to the objections raised, demands of the public, radiation

hazards etc., The proponent informed that they have been undertaking

CSR and other welfare activities in and around the existing ML Areas

since inception and 2% to 3% of the net profit is always allocated for

these activities. In addition to the above, proponent reported that the

fisherman village society members of Kurumapanai, Midalam and Mel

Midalam will be engaged for collection of replenished mineral sand from

beach areas for which a budget of Rs. 100 lakh per annum will be

allocated thereby substantially improving their living standards and

economic conditions. As per the villagers’ requirements, it was informed

by the PP that they would take care of local employment, health issues

etc., as per the Government guidelines and directions. These have

been incorporated in the Project Action Plan with budgetary provisions.

Proponent informed that majority of the public who attended the Public

Hearing supported the IREL mining and mineral separation activities.

The objections raised during PH by an organisation named Coastal

Environment and Ecological Conservation Committee and M/s. V.V.

Minerals were addressed by PP. It was informed that these issues were

40

mostly related to land disputes (ML disputes and surface right disputes).

The proceedings of the PH, reply to issues raised by the Coastal

Environment and Ecological Conservation Committee and reply to the

written objections are available in the EIA/EMP document. It was

ensured that the mining over the private patta lands, which are not

owned by M/s. IREL, mining will be carried out only after obtaining the

consents from the concerned land owners as per the provisions of the

MCR, 1960 and MMDR Act 1957. Compensation for such lands will be

paid to the land owners as per the agreed terms and conditions prior to

mining. After mining, the mined out lands will be backfilled and handed

over to the concerned land owners. “

***

47) From the very reading of the above, it would be quite clear that the

representative of the 3rd respondent along with his lawyer and also the President of

Coastal Environment and Ecological Conservation Committee were present to brief

the Committee on the proposal of the appellant, but they were not heard. The

counsel for the appellant would submit that when the Committee took up the matter

in the evening hours, while the representative of the appellant was present, the

representatives of the 3rd respondent and Coastal Environment and Ecological

Conservation Committee were not available and hence, the EAC took a decision

after hearing the submissions made by the Project Proponent. Not only the

representative of the 3rd respondent was never heard, but also there is nothing to

indicate that the objections raised by the 3rd respondent all along in the past which

was placed before the Sub Court, Tirunelveli by way of a suit, by way of objection

41

before the public hearing, and by way of objection before EAC at the time of the

meeting were considered.

48) The EAC was satisfied by imposing a condition that in private patta

lands which are not owned by M/s. IREL, the mining activity will be carried out only

after obtaining the consent from the concerned land owners as per MCR, 1960 and

MMDA, 1957. The reading of the said condition would clearly indicate the fact that

the MoEF in its meeting never considered the question of the appellant’s

possession, but only the ownership in respect of the lands, which in itself is

inconsistent to the 3rd condition found in the ToR which needs the submission of a

copy of the documents in support of the fact that the Project Proponent is the

rightful lessee of the mine. It is a matter of surprise to note that EAC before passing

the resolution for recommendation did not take into consideration the lawful

possession criteria, but also it has given up the original condition No. 3 imposed by

it in the ToR. Even if it is believed that it would be a compliance of MCR, and the

consent was not available at the time of renewal, but it would be sufficient if the

consent was available only at the time of mining, it would not satisfy law as

envisaged under relevant statutory provisions.

49) It would be apt and appropriate to reproduce the relevant statutory

provisions as per MCR, 1960 in this regard.

“22. Application for granting mining lease: ***

(3)(i) **

(a)***

(d)***

42

(e)***

(g)***

(h) a statement in writing that the applicant has, where the land is not

owned by him, obtained surface rights over the area or has obtained

consent of the owner for starting mining operations.

Provided that no such statement shall be necessary where the land is

owned by the Government.

Provided further that such consent of the owner for starting mining

operations in the area or part thereof may be furnished after execution

of the lease deed but before entry into the said area.

Provided also that no further consent would be required in the case of

renewal where consent has already been obtained during the grant of

the lease.

***

24A. Renewal of mining lease: An application for the renewal of a

mining lease shall be made to the State Government in Form J, at least

twelve months before the date on which the lease is due to expire,

through such officer or authority as the State Government may specify

in this behalf.

***

43

Chapter X

Form J (To be submitted in duplicate)

Application for renewal of mining lease

(see rule 24 A)

*** *** *** (xA) (a): Does the applicant continue to have surface rights over the area of the land for which he requires renewal of the mining lease.

(b): If not, has he obtained the consent of the owner and occupier for undertaking mining operations. If so, the consent of owner and occupier of the land obtained in writing.

*** *** 50) Rule 22 (3) deals with the documents to be filed along with application

for a mining lease. One of the documents to be filed as set out in sub rule (h) is a

statement in writing that the applicant has obtained consent from the owners for

starting mining operations. Where a land is not owned by the applicant applying for

a mining lease, no doubt, the consent from the land owner can be obtained after

the grant of lease, but before starting mining operations. The rule makes it clear

that a statement that the applicant has obtained surface rights over the area and

the consent obtained from the land owners should be filed along with the

application. This would clearly indicate that the applicant should have obtained

surface rights or is not required in the case of renewal provided that consent has

already been obtained during the grant of lease. A reading of rule 24 A makes is

mandatory that an application of renewal of mining lease shall be made in Form J.

44

51) Form J of MCR, 1960 makes it obligatory that the land owner’s consent

must accompany the renewal application. The learned counsel for the appellant,

pointing to the above rules would submit that the consent of the owner need to be

filed only if such a consent was available and if not available, it could be filed even

before the commencement of mining operations. This contention cannot be

countenanced for the simple reason that if that is allowed, any one neither with

ownership nor with lawful possession or without consent can get a renewal.- .By

refusing to file the necessary consent. A harmonious construction of rule 22 (3)

and 24 A of MCR, 1960 would lead only the conclusion acceptable and reasonable

that the consent of the land owner is sine quo non for seeking renewal of the

mining lease. The above legal position got affirmation by the High Court of Madras

in the judgement dated 29.09.2010 in W.P.No. 3091 of 2003 in the matter of S.

Ramasamy vs. Union of India wherein it has been held as follows:

“17.1. In order to appreciate the interpretation of the rule 22(3)(h) and

rule 24A of the MCR,1960, it is worth to extract the above said

provisions. (omitted).

17.2. Rule 22 provides for an application for grant of a mining lease. It

also provides for an application to be made in specific Forms while

applying grant of mining lease and also for the grant of renewal of

mining lease. For the grant of mining a fresh lease, Form I is

prescribed. Similarly, for grant of a renewal of a mining lease Form J is

prescribed under rule 24A of the MCR, 1960. Rule 22 also speaks

about the requirements to be accompanied in the application for the

grant of renewal. The requirements are also applicable to the fresh

lease as well as the renewal. Rule 22 (3) (h) mandates that a consent is

required from the land owner. Therefore, such consent is mandatory

under the rules. The proviso to rule 22 (3) (h) speaks about not

requiring further consent when the consent has already been obtained

during the grant of lease. In other words, when there is a consent

already obtained during the grant of lease which continues to be in

45

force, then no further consent is required while seeking renewal for the

reason the said consent is also covering the period of renewal.

17.3. Therefore, the rule prescribes that when there is a valid and

proper consent covering the period of renewal as well, the procedural

formality of getting a further consent once again for the renewal is not

required. This position has been made clear by a perusal of Form J

which is applicable to the renewal. Form J specifically provides as

follows:

“( xA) (a) Does the applicant continue to have surface rights over the area of the land for which he requires renewal of the mining lease.

(a) If not, has he obtained the consent of the owner and

occupier for undertaking mining operations. If so, the consent of owner and occupier of the land obtained in writing.”

17.4. The above said prescription would make it very clear that

consent is not required for renewal only when the same has already

been given during the lease period covering the period of renewal

sought for. Therefore, a combined reading of rule 22 (3) (h) and rule

24 A read with Form J makes it clear that in a case where the

consent expires a fresh consent has to be obtained. Further, the 2nd

proviso to rule 22 (3) (h) makes it very clear that without a consent

the lessee cannot indulge in quarrying operation. Hence, a right to

quarry mandates a valid consent which is a pre-requisite and a

condition precedent.”

52) The Tribunal is able to see sufficient force in the contentions put forth

by the learned counsel for the 3rd respondent that the 3rd respondent is admittedly

the owner of the part of the land who, no doubt has surface right and preferential

mineral right and only in view of that reason, the consent of the 3rd respondent

should be given much importance. This contention gets strengthened by a

46

decision of the Apex Court in 1997 SC 1081 in the matter of Pallava Granites vs.

State of Tamil Nadu whereby it was held as follows:

“We find no force in the contention. The right to excavate the mines

from a land of a private owner is based on the agreement; unless the

lessor gives his consent, no lessee has a right to enter upon his land

and carry on mining operations. The right to grant mining lease to

excavate the mines beneath the surface is subject to the agreement of

the land owners. Therefore, with a view to ensure that there will not be

any obstruction in the working of the mining lease and also for the

peaceful operation of the excavation of mines, insistence on the

consent of the landlord is necessary. Therefore, we do not find any

illegality in the view taken by the High Court warranting interference.”

53) The Apex Court had an occasion to consider the nature of sub surface

right on the land owner and has recognised the same as absolute in its report AIR

2013 SC 3215 in the matter of Thressiama Jacob vs. Geologist and has held as

follows:

“57. We are of the opinion that there is nothing in the law which

declares that all mineral wealth sub-soil rights vest in the State, on the

other hand, the ownership of sub-soil/mineral wealth should normally

follow the ownership of the land, unless the owner of the land is

deprived of the same by some valid process. In the instant case, no

such deprivation is brought to our notice and therefore, we hold that the

IRELs are the proprietors of the minerals obtaining in their lands. We

make it clear that we are not making any declaration regarding their

liability to pay royalty to the State as that issue stands referred to a

larger Bench.”

54) From the decisions cited above it is very clear that the consent of the

land owner is a pre-requisite for applying for renewal and if not filed along with the

application, the said application is liable to be rejected.

47

55) In this connection, it would be very relevant and more useful to refer a

decision of the Division Bench of the Hon’ble High Court of Andhra Pradesh in the

matter of Andhra Pradesh Mineral Development Corporation, Hyderabad vs. M/s.

RLP Granite Pvt. Ltd., reported in AIR 2005, A.P. 298, where it has been held as

follows:

“35. The Mineral Concession Rules, 1960 also provide the requirement

of obtaining consent of the land owner and the same to be made

available along with the application seeking rant of mining lease but the

third proviso to rule 22 (3) (i) (h) of the Mineral Concession Rules, 1960

specifically carves out an exception that in case of renewal no further

consent would be required where consent has already been obtained at

the time of grant of lease, no further is required to be obtained in case

of renewal. …

36. In Pallava Granites Industrial India (P) Ltd., (AIR 1997 SC 2098)

(supra) the Supreme Court while repelling the contention that there was

no need to obtain the consent of the owner of the land before grant of

mining lease under the provisions of the said rules observed:

“The right to excavate the mines from the land of private owner is

based on the agreement; unless the lessor gives his consent, no lessee

has a right to enter upon his land and carry on mining operations. The

right to grant mining lease to excavate the mines beneath the surface is

subject to the agreement of the landowners. Therefore, with a view to

ensure that there will not be any obstruction in the working of the mining

lease and also for the peaceful operation of the excavation of the

mines, insistence on the consent of the land is necessary.

48

37. The right to grant quarry lease to excavate the minerals beneath the

surface of the land is subject to agreement of the owners of the land. In

the absence of consent, no quarry lease could be granted in favour of

any individual.

38. In State of Tamil Nadu V. M.P.P. Kavery Chetti, (1995) 2 SCC 402:

(AIR 1995 SC 858), the Supreme Court while considering the

Constitutional validity of Rule 19-A of the Tamil Nadu Mineral

Concession Rules, 1959, as amended, which did not provide for

consent of the owner of the land as a condition for grant of quarry

lease,……

39. It is a case where the Rule itself did not provide the requirement of

the consent of the owner of the surface rights or occupier of the land. In

the case on hand, the Rules mandate the consent of the owner and the

occupier of the land as a condition precedent for grant of a quarry

lease.

40. Section 24-A (1) of the Act upon which reliance was placed by the

learned counsel for the petitioners provides that “on the issue of a

reconnaissance permit, prospecting license or mining lease under the

Act and the Rules made thereunder, it shall be lawful for the holder of

such permit, license or lease, his agents or servants or workmen to

enter the lands over which permit, lease or license had been granted at

all times during its currency and carry out all such operations as may be

prescribed.” Its meaning is clear and simple that once the prospecting

license or mining lease is issued under the Act and the Rules made

thereunder, the holder of license or mining lease is entitled to enter into

49

the lands over which such permit, lease, or license has been granted, at

all times, during its currency and carry out all such operations as may

be prescribed. It means that after the grant of license or the lease, as

the case may be, no further consent of the owner of the land or the

occupier is required to be obtained for entering into the land so as to

undertake quarry operations, since the grant of license or lease, as the

case may be, is based on prior consent given by the owners of the land.

The consent of the owner of the land enabling the grantee to enter into

the land and carry on the quarry operations is implicit in the grant of

lease or license itself. The provision deal with rights of the holder of

permit, license or lease to enter the lands over which such permit, lease

or licence has been granted and enables such holder to carry on the

quarry operations. It deals with post-grant situation.

41. Section 24-A (1), in our considered opinion, in no manner deals with

the pre-condition of a requirement of a consent from the land owner for

grant of quarry lease for granite, particularly in cases, where such

requirement is made mandatory by the Rules framed in exercise of the

Rule making power under the provisions of the Act.”

56) In order to substantiate his contention that consent of the owner of the

land is not necessary before grant of EC and it can be made available before

commencing the mining operations, the learned counsel for the appellant placed a

reliance on the decision of the Hon’ble Apex Court reported in 1995(2)SCC 401-

State of Tamil Nadu vs. Kaveri Chetty. The Supreme Court in the said case dealt

with the validity of rule 19-A of the Tamil Nadu Minor Mineral Concession Rules,

1959. The observation made by the Apex Court in respect of the consent of the

owner or occupier is required only when the holder of the lease desires entry into

50

any building or enclosed court, or garden, has to be understood in the context of

the Tamil Nadu Minor Mineral Concession Rules, 1959. In the instant case, it is

not governed by the provisions of Tamil Nadu Minor Mineral Concession Rules,

1959, because the mineral in question i.e, garnet sand etc., is governed by the

provisions of the MMDR, 1957 and rules made thereunder and hence, the decision

relied on by the appellant cannot have any application to the present case.

57) The provisions make it clear that in a given case where consent was not

obtained, it can be produced before the commencement of mining operations.

Even in that case, a statement of the applicant, if he is not the owner of the land

has to be filed. Hence, in a given case, if the application is made by a person who

is not the owner of the land, he has to make a statement for not producing the

consent at the time of making the application and obtain the consent before the

commencement of mining operations. Hence, the rule mandated the production of

statement under what circumstances the applicant could not produce the consent

of the land owners at that time. In the instant case, it is not the case of the

appellant that he ever filed the statement along with the application nor there is

any material available to indicate that such a statement was made. The rule

envisages only a situation where consent is not obtained and definitely not a

situation where there is a refusal to give consent by the owners of the land. It

makes a vast difference between ‘consent not obtained’ and ‘consent refused to

be given’. Hence, the intention of the Legislature is made explicit that in a given

case, when consent is not obtained, it should accompany a statement by the

applicant. The decisions relied on by the appellant can be applied to those cases

where consent was not obtained, but not to the case where consent was refused

by the owner of the land which is covered under the subject matter mining lease

area. It remains to be stated in the instance case that the 3rd respondent not only

refused to give consent but also the appellant has categorically admitted that part

of the land which is the subject matter mining lease area extent is owned by the 3rd

respondent.

51

58) Assuming that though the EAC was under the impression that the

consent of the owner of the land, even if not available at the time of renewal, it

would be sufficient to produce the same before commencement of the mining

activities it would not only untenable, but also would satisfy law as envisaged in

the statutory provisions. So long as the applicant has not given a statement as

contemplated under the above rule, the application for EC is inchoate and

defective which does not require consideration by EAC. On that ground the

application itself should have been rejected. In respect of item No. 2, the appellant

could not produce any document in respect of ownership or possession since he

had no documents. Admittedly, the part of the lands is owned by third parties

including the 3rd respondent.

59) From all the above, it can be safely concluded that the

recommendations made by the EAC of the MoEF in paragraph 2.26 of the

Minutes of Eighth Meeting of the Reconstituted Committee of EAC of Mining

Projects Constituted under EIA Notification, 2006 in favour of the appellant suffers

for the following reasons:

(a) Taking into consideration the application made by the appellant

without consent of the owner or a statement that he has obtained

surface rights over the land.

(b) By non production of the documents in support of the fact that the

Project Proponent is the rightful lessee of the subject matter

mining lease area extent despite the fact that a specific condition

was imposed in the ToR.

(c) Non consideration of the objections raised by the 3rd respondent

who is admittedly the owner of the part of the land in the subject

matter mining lease area extent.

52

(d) Recommending the EC in favour of the appellant with a condition

that the private patta lands which were not owned by the

appellant, mining should be commenced only after obtaining

consent from the land owners which is against legal mandate.

60) In view of all the above, the Tribunal has to necessarily agree with the

case of the applicant to declare that the EAC is not entitled to recommend for the

grant of EC in the Minutes of Eighth Meeting of the Reconstituted Committee of

EAC of Mining Projects Constituted under EIA Notification, 2006 in respect of the

mining project, in violation of MMDR, Act 1957 and MCR, 1960 and consequently

to set aside the EC granted by the MoEF to the 2nd respondent in the Eighth

meeting of the Reconstituted Committee of Experts Appraisal Committee for

Environmental Appraisal of Mining Projects under EIA Notification, 2006 as sought

for in the Application.

61) In so far as the Appeal No 97 of 2013 (SZ) is concerned, a challenge is

made to an order of rejection of the CRZ clearance of the appellant dated

09.02.2013 in the 59th meeting of the 2nd respondent/DCZMA dated 10.07.2013.

62) Admittedly, the 1st respondent/ District Environmental Engineer, Tamil

Nadu Pollution Control Board, Kanyakumari District sent a letter dated 19.07.2013

which reflected the order of rejection of DCZMA on the following reasons:

(a) The appellant had not furnished the consent of the third party land

owners for commencement of the mining operations.

(b). CRZ clearance had already been granted to the 3rd respondent for

some the lands in the 29.78 ha extent.

53

(c) Land dispute was pending in respect some of the lands in 29.78

ha extent, at the instance of the 3rd respondent.

(d) The appellant has no mining rights as the Sub Court, Tirunelveli

had issued an injunction restraining the Government from granting

mining lease in respect of the 3rd respondent’s land to any third

party.

(e). The appellant had not excluded those survey numbers in respect

of which the above qualifications were applicable.

63) The prime contention put forth by the learned counsel for the appellant

is that the 2nd respondent/DCZMA has travelled beyond its lawful jurisdiction and

competence of granting clearance under CRZ Notification since the rejection of the

application of the appellant on the basis of the issues which were completely

irrelevant to CRZ Notification, 2011 and when germane only to the MMDR Act,

1957 and MCR, 1960. The requirement of obtaining consent from the 3rd party

land owners for commencement of mining operations pursuant to the grant of

mining lease can arise only immediately prior to the commencement of actual

mining operation and not at the time of applying for renewal

64) Advancing the arguments on behalf of the 3rd respondent, the learned

counsel would submit that the TNCZMA is the authority charged with enforcing the

provisions of CRZ Notification, 1991 as amended. Paragraph 3 of the CRZ

Notification sets out that all the activities mentioned thereby are prohibited

activities in the CRZ area. Paragraph 3 (x) of the CRZ Notification, however,

carves out an exception for the mining of rare mineral which are not found outside

the CRZ areas. Therefore, the TNCZMA when approached for

clearance/recommendation under CRZN by a Project Proponent for the purpose of

carrying on mining activity in CRZ area is entitled to satisfy itself whether the

54

activity is a bona fide mining activity, whether the mining is for rare minerals and

whether the rare minerals cannot be found outside CRZ areas. Of these three,

when the TNCZMA checks if the Project Proponent is carrying on mining activity it

goes without saying that the TNCZMA is entitled to satisfy itself that the proposed

mining activity is a lawful activity unless the TNCZMA satisfies itself of the above,

it cannot come to the conclusion that the Project Proponent is within the exception

engrafted in paragraph 3 (10) of the CRZ. Therefore, the contention of the

appellant is untenable in law and order of rejection of the application by the

TNCZMA has to be sustained.

65) The appellant has assailed that the 2nd respondent had gone beyond

his jurisdiction and competence of granting a recommendation under CRZ

Notification, 2011. On the contrary, it is contend by the respondents’ side that the

rejection of the application seeking CRZ clearance was thoroughly within their

jurisdiction

66) Admittedly, the application made by the appellant for CRZ clearance

was rejected on the grounds that in some of the land in 29.78 ha extent which is

the subject matter mining lease area extent, the appellant had not furnished

consent of the 3rd party land owners for commencing the mining operations, that

the clearance had already been granted to the 3rd respondent, that land dispute

was pending in respect of some of the lands in 29.78 ha extent at the instance of

the 3rd respondent, but the appellant cannot be allowed to mine since an order of

injunction granted by the Sub Court, Tirunelveli restraining the Government for

granting mining lease in respect of the land owned by the 3rd respondent to any

third party and also that the appellant had not excluded those survey numbers in

respect of which the above qualifications were applicable.

67) The following provisions of CRZ Notification, 2011 are relevant for the

purpose of this appeal:

55

“... the Central Government hereby declares the following areas as CRZ

and imposes with effect from the date of the notification the following

restrictions on the setting up and expansion of industries, operations or

processes and the like in the CRZ,-

(i) the land area from High Tide Line (hereinafter referred to as the HTL)

to 500 mts on the landward side along the sea front.

(ii) CRZ shall apply to the land area between HTL to 100 mts or width of

the creek

whichever is less on the landward side along the tidal influenced water

bodies that are connected to the sea and the distance up to which

development along such tidal

influenced water bodies is to be regulated shall be governed by the

distance up to which the tidal effects are experienced which shall be

determined based on salinity concentration of 5 parts per thousand

(ppt) measured during the driest period of the year and distance up to

which tidal effects are experienced shall be clearly identified and

demarcated accordingly in the Coastal Zone Management Plans

(hereinafter referred to as the CZMPs).

Explanation.- For the purposes of this sub-paragraph the expression

tidal influenced water bodies means the water bodies influenced by tidal

effects from sea, in the bays, estuaries, rivers, creeks, backwaters,

lagoons, ponds connected to the sea or creeks and the like.

56

(iii) the land area falling between the hazard line and 500 mts from HTL

on the landward side, in case of seafront and between the hazard line

and 100 mts line in case of tidal influenced water body the word ‘hazard

line’ denotes the line demarcated by Ministry of Environment and

Forests (hereinafter referred to as the MoEF) through the Survey of

India (hereinafter referred to as the SoI) taking into account tides,

waves, sea level rise and shoreline changes.

(iv) land area between HTL and Low Tide Line (hereinafter referred to

as the LTL) which will be termed as the intertidal zone.

(v) the water and the bed area between the LTL to the territorial water

limit (12 Nm) in case of sea and the water and the bed area between

LTL at the bank to the LTL on the opposite side of the bank, of tidal

influenced water bodies.

2. For the purposes of this notification, the HTL means the line on the

land up to which the highest water line reaches during the spring tide

and shall be demarcated uniformly in all parts of the country by the

demarcating authority(s) so authorized by the MoEF in accordance with

the general guidelines issued at Annexure-I. HTL shall be demarcated

within one year from the date of issue of this notification.

3. Prohibited activities within CRZ,- The following are declared as

prohibited activities within the CRZ,-

i) Setting up of new industries and expansion of existing industries

except,-

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(a) those directly related to waterfront or directly needing foreshore

facilities;

Explanation: The expression “foreshore facilities” means those activities

permissible under this notification and they require waterfront for their

operations such as ports and harbours, jetties, quays, wharves, erosion

control measures, breakwaters, pipelines, lighthouses, navigational

safety facilities, coastal police stations and the like.; for implementation

of ameliorative and restorative measures in relation to environment as

may be stipulated by MoEF.

Provided that facilities for receipt and storage of fertilizers and raw

materialsrequired for manufacture of fertilizers like ammonia,

phosphoric acid, sulphur, sulphuric acid, nitric acid and the like, shall

be permitted within the said zone in the areas not classified as CRZ-I

****

(x). Mining of sand, rocks and other sub-strata materials except,-

(a) those rare minerals not available outside the CRZ area,

(b) exploration and exploitation of Oil and Natural Gas.

4. Regulation of permissible activities in CRZ area.- The following

activities shall be regulated except those prohibited in para 3 above,-

(1)(a), clearance shall be given for any activity within the CRZ only if it

requires water front and foreshore facilities;

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(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.

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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

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which is the subject matter mining lease area. It is not as if, the DCZMA rejected

the application merely on the objection raised by the 3rd respondent. The authority

requested the appellant to produce the necessary documents stating the

objections raised, the appellant gave a reply stating the production of documents

was not necessary. The production of documents in respect of item Nos. 1 and 3

would be only indicative of the fact that the appellant was conscious that before

making the recommendation the authority should be satisfied that the mining

activity proposed to be carried out on the land which was in lawful possession. The

authority has even required the appellant to delete the land of the 3rd respondent

to which course the appellant was not amenable, but was adamant to pursue his

application as it was. Being a law enforcing authority, the DCZMA was perfectly

correct in rejecting the application since the appellants’ proposed mining activity in

the land of 3rd respondent in respect of which objection was raised and also

injunction was in force cannot be termed as lawful. Having failed to satisfy the

DCZMA with necessary legal requirements as stated above, the appellant cannot

expect the authority to give its recommendations mechanically and in perfunctory

manner. Hence, the contentions put forth by the learned counsel for the appellant

have got to be rejected as untenable and order of rejection by DCZMA has to be

sustained. Apart from the above, the request of the appellant to set aside the order

of rejection of the appellant’s CRZ clearance application Ref: IRELMK/Res/CRZ-

44.6212/2012-13/887 dated 09.02.2013 as contained in the minutes of the 59th

meeting of the 2nd respondent/DCZMA, Kanyakumari District held on 10th July

2013 and communicated to the appellant vide the first respondent/the

District Environmental Engineer, Kanyakumari, of the Tamil Nadu

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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.

.