IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 21.07.2008 CORAM THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR. JUSTICE M.VENUGOPAL W.P. NOS. 657 & 658 OF 2006 IN W.P. NO. 10908 OF 2005 AND CONTEMPT PETITION NO.437 OF 2005 and WP.MP.Nos.770, 771 of 2006, 498 and 499 of 2008, WP.MP.No.11867 and 11868/2005 and MVMP No.1621/05 and 497/08 W.P. NOS. 657 & 658 OF 2006 G.Neelammal Govindaraj .. Petitioner in WP 657/06 V.K.Ganapathy .. Petitioner in WP 658/06 - Vs - 1. The State of Tamil Nadu rep. by its Secretary Public Works Department Government of Tamil Nadu Secretariat, Fort St. George Chennai 600 009. 2. The District Collector Kanchipuram District. 3. The Chief Engineer Water Resources Organisation Public Works Department Chennai Region, Chennai 600 005. .. Respondents 1 to 3 in both the W.P's 4. Tahsildar Maduranthagam Taluk Kanchipuram District. .. 4th Respondent in W.P.No.657/06 5. The Revenue Divisional Officer Maduranthagam Taluk Kanchipuram District. ... 5th Respondent in W.P.No.657/06 https://hcservices.ecourts.gov.in/hcservices/ 6. The Assistant Director of Mines Mines Department, Kanchipuram. 7. E.Saravanan (R.7.Impleaded as per order dt.13.2.07 in WPMP 61 & 62/07 in WP.657 & 658/06 .. 6th and 7th Respondents in both W.P's 8. The Tahsildar, Thirukazhukundram Taluk, Kanchipuram District. 9. The Revenue Divisional Officer, Thirukazhukundram Taluk, Kanchipuram District. .. Respondents 4 and 5 in WP.No.658/06 W.P. NO. 10908 OF 2005 V.K.Govindan .. Petitioner - Vs - 1. The State of Tamil Nadu rep. by its Secretary Public Works Department Government of Tamil Nadu Secretariat, Fort St. George Chennai 600 009. 2. The District Collector Kanchipuram District. 3. The Sub Collector Thirukazhukundram Taluk Chengalpattu Kanchipuram District. 4. The Tahsildar Thirukazhukundram Taluk Kanchipuram District. 5. Mr. Shanmugam Village Administrative Officer Vallipuram, Kanchipuram District. 6. The Inspector of Police Thirukazhukundram Taluk Kanchipuram District. https://hcservices.ecourts.gov.in/hcservices/ 7. E.Saravanan (R7 impleaded as per order dt.13.2.07 in WPMP.61 & 62/07 in WP.657 & 658/06) .. Respondents CONTEMPT PETITION NO.437 OF 2005 V.K.Govindan .. Petitioner - Vs - 1. Mrs. Kavitha Raman Sub Collector Thirukazhukundram Taluk Chengalpattu Kanchipuram District. 2. Mr. Ramasamy Tahsildar Thirukazhukundram Taluk Kanchipuram District. 3. Mr. Shanmugam Village Administrative Officer Vallipuram Kanchipuram District. .. Respondents W.P. No.657 of 2006 filed for the issuance of a writ of mandamus directing the respondents not to quarry sand and to ensure that no sand quarrying is carried on within the Budur Village Panchayat or adjoining panchayats including Vilagam and Vallipuram, assess damages for the illegal quarrying and compensate the Budur Panchayat for the same. W.P. No.658 of 2006 filed for the issuance of a writ of mandamus directing the respondents to ensure that no road or path or other obstruction is constructed inside the Palar river bed commencing from Vilagam village, Thirukazhukundram Taluk, Kanchipuram District or its neighbourhood and to remove the road already constructed and remediate the area. W.P. No.10908 of 2005 filed for the issuance of a writ of mandamus directing the respondents not to quarry sand and to ensure that no sand quarrying is carried on in survey Nos.329, 329/1A and adjoining areas in the Palar river bed in Vallipuram Village Panchayat area, Vallipuram Village No.31, Thirukazhukundram Taluk, Kanchipuram District. https://hcservices.ecourts.gov.in/hcservices/ Contempt Petition filed under Section 10 and 12 of the Contempt of Courts Act, 70/71 to punish the respondents herein for committing contempt of the orders of this Hon'ble Court dated 1th April, 2005 and 7th April, 2005 in W.P.M.P. No.11867 of 2005 in W.P. No.10908 of 2005. For Petitioners : Mr. T.Mohan in WP 657 & 658/06 Mr. N.G.R. Prasad for M/s.Auxilia Peter in WP 10908/05 & Cont. Ptn. 437/05 For Respondents : Mr. P.S.Raman, AAG, for Mr.D.Srinivasan, AGP in all WPs COMMON ORDER S.J.MUKHOPADHAYA, J. All these public interest litigation relates to sand mining in the river Palar. Allegation of indiscriminate sand mining in different villages having made and in view of alleged violation of the Court's interim order, all the writ petitions and contempt application were heard together and disposed of by this common order. 2. Aggrieved by the rampant sand quarrying activities on Palar river bed, adjacent to Vallipuram village, the petitioner in W.P. No.10908/05 filed the writ petition seeking a writ of mandamus directing the respondents to ensure that no sand quarrying is carried out in survey No.329 and 329/1A, assess the damage for illegal quarrying and compensate the panchayat for the same. Similar prayer has been made in W.P. No.657/06, which relates to sand quarrying on the same river within Budur village panchayat and adjacent panchayat, including Vallipuram. In another writ petition, W.P. No.658/06, prayer has been made to direct the respondent to ensure that road or path or other obstruction is constructed inside the Palar river bed commencing from Vilagam village, Thirukalukundram Taluk, Kanchipuram District or its neighbourhood and to remove the road already constructed. 3. During the pendency of the writ petition, this Court passed an interim order of injunction restraining the respondents from quarrying on/permitting sand quarrying operation in survey No.329, 329/1A of Vallipuram village by order dated 1st April, 2005, which was subsequently extended. Having alleged that the said order was violated by the authorities, a contempt petition was preferred. In the said contempt petition, a Bench of this Court, vide order dated https://hcservices.ecourts.gov.in/hcservices/ 12th Sept., 2005, while held that there is no material to show that illicit quarrying is proceeding further, issued certain direction for posting police personnel to prevent illicit quarrying, if any. 4. As it was alleged that illegal mining is being made on the bed of the Palar river in different places/villages and that a road had been formed on the river bed for a width of atleast 10 feet and for a distance of 300 mtrs., leading to the quarrying site in Easur limit and that the sand was found removed upto the depth of 12 feet in certain areas, roughly 40 ft. X 100 ft., and that the sand nearer to a bridge has been removed, taking into consideration the gravity of allegation, this court, on the suggestion of the parties, by its order dated 21st Aug., 2007, constituted a three man committee of mr.N.G.Anuthaman, Lecturer (Selection Grade) CWR, Anna University, Mr.S.S.Rajagopal, Executive Engineer, Public Works Department, Ground Water Division, Chennai and Dr.C.Mohandoss, Retd. Professor of Anna University and requested the committee to inspect the Palar river near Easur, Budur and Vilagam villages and submit its report with specific finding whether illicit sand quarrying is going on affecting the ground water or polluting the river or causing any other difficulty, including availability of drinking water and agricultural water. The expert committee, in its meeting, decided to visit Vallipuram, Vilagam, Easur and Budur villages to observe the following :- "The first meeting of the expert committee was held on Tuesday the fourth of September and the members perused the court orders. It was resolved that the committee will visit the Vallipuram, Vilagam, Easur and Budur villages to observe the following :- "1. To conduct surprise visit to the villages to check the illegal sand mining, road in river bed, ground water quantity and quality, adequacy of water availability for drinking and agricultural activities. 2. The present water levels of ground water and comparing it with the past trend for identifying any abnormal changes. 3. The water samples will be collected from the wells located on the river bed, near the overhead tanks of the villages and also in the unused wells for checking its quality. 4. The agricultural details will be collected to determine the changes in ayacut areas and yield. 5. The stage of sand mining and any road formations in the river bed to enable illegal sand mining will be inspected. https://hcservices.ecourts.gov.in/hcservices/ 6. The views of the villages and that of the government agencies will be noted to determine its correlation with the realities." 5. After inspection of the aforesaid areas of different villages and spot verification, while a detailed report has been submitted giving the location, stream of flow, characteristic, etc., of Palar river, including its map showing the villages through which the river is crossing and characteristics of lakes, tanks, wells and villages adjacent to it, it has given its finding with regard to ground water quantity and quality, illicit sand quarrying, if any, and made the following recommendations :- "5. RECOMMENDATIONS : VILLAGEWISE The objectives for the investigation of illicit sand quarrying at Vallipuram, Budur, Easur and Vilagam Villages have been completed and detailed below. 1. Sand Quarrying : The site inspective indicates that illicit sand quarrying has taken place, especially in the down stream stretch. The southern side of down stream has a sand of deeper thickness and it is bounded by a clay and silt formation on either side of it. It signifies that the flow from the southern side confluences with the Palar River leading to a thicker sand formation as compared to the thickness of 2 m. This wedge of sand has been quarried and it has to be checked for exceeding the stipulated norms. The road in the middle of the river bed is at a height of 6.5 m (i.e., 20 feet) above the sand bed and parallel to the river course has to be removed as per the court order. 2. Ground water quantity and quality : The observations at the field and the views of the villagers indicate that the quantity of ground water is good. The long term ground water levels indicates that its follow a normal pattern. Therefore, the sand quarrying is not affecting the ground water resources at Valipuram, Budur and Easur villages. The bed level contours and water quality samples of these areas indicate that the quality within a permissible limit in the wells within the village and also on the river bed. 3. Drinking and Agricultural Activities : On verifying the crop pattern details it is seen that the crop pattern has remained same before and after the sand mining in the palar river. The wells utilised for both dry and wet seasons in Budur is 33, https://hcservices.ecourts.gov.in/hcservices/ while it is 78 wells during the dry season and 19 wells during the wet season in Easur indicating the influence of the Palar. The reasons for any reduction in irrigated areas may be attributed to self financial crunch, bank financial difficulties, non-availability of good seeds and labour reluctance to work and to some extend due to water availability at selected reaches. VILLAGE WISE RECOMMENDATIONS : Vallipuram & Vilagam : i) Location : These villages bounded on North by residual hills, East by Pondur village, South by Palar river. Southern boundaries lie on the middle of Palar river bed. ii) Water Availability : General water table in this area represented by ground water well no.U23078 at Elimichmpattu and water table on perusal show that there is marginal raise in water table. The entire length & breadth of village were inspected on 5.9.2007. As per enquiry, drinking water facility provided through over head tank is at a rate of 1,60,000 lts/3000 persons. With the water from lakes on the North the agricultural activities are continued and the bore wells augmenting the overall requirements. On erusal of ayacut details for the period 2002-2006, the indication is that literally there is no change in the agricultural activities. iii) Sand Mining : There has been a stay ordered for the mining of sand available in the river bed. During the time of field visit no illegal sand mining was physically seen though the visit made was surprise inspection. However there seems evidence of illegal sand mining and also as per the enquiry made. iv) Availability of sand : There seems to be appreciable depth of sand (more than 3 m) is available. v) Inference : Even though sand mining in the river bed adjoining Vallipuram village (Eastern area) has been mined heavily, there seems no effect on water table of this village, as the village is on higher elevation and water table in the village is more influenced by the lakes rather than the river. Further the village panchayats have sunk bore well in the river bed for water supply to the villages. The water quality is very good in the river bed compared https://hcservices.ecourts.gov.in/hcservices/ to quality of water in the well in the habitations. The water in the river bed has been tested and found to be very good as against the villager's petition that water in river has been polluted due to sand mining. Recommendations : Hence, the committee feels that the sand in the river bed belonging to Vallipuram river portion can be mined as per guidelines on hand in PED. The mining should be controlled and only in the portion specifically demarcated and to specific depth as decided by the authorities. There is scope for mining and consequently revenue to the government. In the event of sand mining not legally authenticated and resorted to in the controlled fashion, illegal sand mining will definitely will be promoted and will result in heavy loss to the Government. Easur – Budur : Easur village is in Budur Panchayat. i) Location : These villages are bounded on North & East by Palar river, South by Killiyar river and West by the river portion belonging to Easur village. ii) Water Availability : For agriculture purposes villagers tend to pump from bore wells sunk in the Palar river and are more dependent on the Killiyar river bed bore wells. The water quality in the bore wells in Palar bed is good and is being pumped for drinking water purpose by the Panchayat. There is no data available to check directly the water level but from the irrigation activities (photos enclosed) the availability of water for irrigation looks good and it has been verified that the agricultural ayacut is not affected after sand mining. This is simply because the water availability for agricultural purposes is not dependent on Palar River. But agricultural activities are influenced by Maduranthagam tank storage and Killiyar River. Recommendations : Approach road across river : The approach road has to be removed at least for 500 m from Vilagam village side to prevent illegal sand mining. This evident of such illegal sand mining is also prevalent. The portion below causeway can also be mined at the junction of Killiyar, wherever the deeper sand thicknesses are available. This has to https://hcservices.ecourts.gov.in/hcservices/ be demarcated by the relevant authority. Technically, the silty clay bed of Gondwana formations on eastern and western sides of this sand formation; with the flow from southern side and the illegal approach road on the northern side is indirectly helping in reducing erosion and building up of sand thickness. It also serves to augment the ground water resources on the northern side, which is utilised for drinking water supply to the villages. Therefore, the retaining of this approach serves as a conservation structure both for sand formation as well as a percolation device for the ground water. In the event of sand mining not legally authenticated and resorted to in the controlled fashion, illegal sand mining will definitely will be promoted and will result in not only heavy loss to the Government but also cause environmental disturbances. Hence the committee feels an overall assessment of availability of sand in various reaches may be got done with help of PWD, Mining department, etc., to assess and survey the availability of sand not only in Palar river bed but also in other river beds to assess the optimum river bed gradient and aquifer consideration for proper utilisation. Demarcation of extent should be made and mining of sand should be done as be to existing norms. Monitoring wells should be sunk either in the river bed or adjoining areas and level of ground water fluctuation and quality should be monitored periodically by Government agencies." The reports were also provided to the parties. 6. A counter affidavit was earlier filed on behalf of the 3rd respondent, Chief Engineer, Water Resources Division, Public Works Department, Chennai. In the said affidavit, it was brought to the notice that earlier in a public interest litigation, this Court, vide order dated 26th July, 2002, also constituted an expert committee consisting of geologist, environmentalist and scientist to study the river and river beds in the State with reference to impact of sand quarrying. Accordingly, the Government had appointed a high level committee as per the direction of the High Court, which, after due inspection and deliberation pointed out that illicit and haphazard sand mining had led to deepening of river beds, which damaged civil structures and depleted ground water table has also degraded ground water quality and damaged the river system reducing bio-diversity. https://hcservices.ecourts.gov.in/hcservices/ It also reported that illicit sand quarrying had created pools of water stagnation in the river beds hampering the water flow down stream, which in turn will have grave consequence on agricultural production. As per the recommendation of the expert committee, the Government, vide its G.O. Ms.95 Ind.(MMC-1) Dept., dated 1st Oct., 2003, amended Rule 38-A of Tamil Nadu Minor Mineral Concession Rules, 1959. All the existing leases for quarrying sand in Government lands and permission granted in ryoti lands were made ineffective from 2nd Oct., 2003. It was ordered that sand quarrying in Government poramboke lands and private patta lands will be undertaken by the Public Works Department of the State as a single agency pursuant to G.O. Ms. No.3D 51 PWD dated 12th Nov., 2003. The public works department since then commenced quarrying in a portion of Meyyur, Pazhamathur, Palayanoor, Budur villages of Madurantakam Taluk and Vilagam, Edayathur of Thirukalukundram Taluk. Subsequently, vide amended letter No.37002/W.Spl/2003-1 dated 10th Jan., 2004, public works department ordered to open quarry outlet in Easur in Palar river, Madurantakam Taluk and vide Government Order No.9229/1 Spl- 2/2005 dated 26th April, 2005, have ordered to open quarry in Vallipuram village in Palar river, Thirukalukundram Taluk. Accordingly, the public works department has opened an outlet storage point in the said area by using poclain to remove sand without affecting the river system to facilitate easy flow of water. In this endeavour, the private movement of vehicle in carrying sand, which requires approach road to facilitate the movement from place to place. The same approach road is being used for transportation of sand from river bed. Therefore, the approach to sand quarrying had been arranged without affecting the river course. In view of the recent report submitted by the experts in regard to Palar river, by order dated 14th Feb., 2008, this Court asked the respondent to inform whether the following orders could be passed in public interest :- "All these writ petitions relate to sand mining in Palar river. Pursuant to Court's order, expert committee had submitted its report in regard to Easur, Budur and Vilagam villages. In one of the affidavit, the respondents have taken plea that it is not mining sand in a particular village. As there is no policy with regard to water preservation, particularly with regard to underground water of river bed, for determination of the issues involved in these public interest litigations, the respondents are directed to inform as to whether the following orders could be passed in public interest :- i) The particular place where sand mining from river bed has already been made legally or illegally and now https://hcservices.ecourts.gov.in/hcservices/ it is not desirable to lift more sand sand from such place, whether the State Government intends to go for further mining of sand from such place. ii) Whether the respondents agree to take corrective measures in view of suggestion made by the expert committee in its report. iii) If sand mining from river bed is made by the respondents, whether it will follow all the guidelines for such sand mining as prescribed for permit holders/lessees under the Minor Mineral Concession Rules, 1959. For example, if permits required to be obtained for transportation through private carrier, whether the respondents will only allow such private carriers to lift sand, who have obtained such permits from the competent authority under the rule. Similarly, if quarrying is required to be made in a skilful, scientific and systematic manner keeping in view the proper safety of labourers, structures, the public and public works, etc., located in the vicinity of quarrying area for preserving environment and ecology, the respondents will follow those principles even if it makes mining of its own. iv) Whether the respondents intends to make any mining at a place prohibited under the rules. v) Whether, before taking a decision for mining at a new place, the respondents will get the matter enquired through any competent officer and proceed after obtaining clearance from the concerned panchayat/municipality. vi) Whether it will be desirable to constitute a committee consisting of State Government Officers and local bodies for deciding complaint, if any, made in regard to local sand mining. Counsel for the State will obtain instructions and may file an affidavit. Pursuant to the said order, on behalf of the State, the 3rd respondent has filed a counter affidavit, wherein while some of the suggestions were accepted, it has not agreed with regard to certain observation, particularly the involvement of local panchayat in the matter of sand quarrying, which is State subject under Entries 23 and 50 of List II of VII Schedule. With regard to the aforesaid query, the following reply has been made by the respondent :- "Rule 12 before issuing the notification mentioned in sub-rule (2) the Collector shall consult the Executive Engineer concerned in respect of tanks in/charge of public works department. https://hcservices.ecourts.gov.in/hcservices/ i) Regarding the authority who should suggest the fit place for quarrying or for further quarrying is that as per Rule 12 of the Tamil Nadu Minor Mineral Concession Rules the same shall be by the District Collector in respect of the lands in charge of Public Works Department and tanks in charge of Revenue Department. For the said the District Collector shall consult the Executive Engineer concerned in respect of tanks in charge of Public Works Department. ii) Regarding removal of sand in river beds as per Rule 15 the same shall be regulated by the conservator of rivers in the case of lands in river beds to which the Tamil Nadu Rivers Conservancy Act, 1884 (Tamil Nadu Act VI of 1884) has been extended and the concern District Collector shall decide the area to be permitted for quarrying after consultation with the conservator of rivers. Iii) As per the said Rule 15 regarding removal of sand from river beds in charge of Public Works Department to which the Tamil Nadu River Conservancy Act does not apply, the District Collector shall consult the Executive Engineer of the division before granting quarrying permission. iv) The above restrictions and regulatory measures are strictly tobe followed before sending recommendation to the State Government or to the Director of Geology and Mining for permission. v) Apart from the above stipulations as per the said Rule 15 the authority shall obtain certificate from the Tamil Nadu Water Supply and Drainage Board in respect of an area for quarrying of sand in river beds. vi) As per Rule 16 all quarrying shall be confined to the ground vertically and no under tunneling is permitted. The above restr4ictions, stipulations and regulations are strictly followed by the PWD since on and from 02.10.2003 PWD is undertaking quarrying operations. vii) The above mentioned authorities are periodically inspecting the areas in which sand quarrying is permitted to find out the ground realities and only on satisfactory report, further quarrying is permitted depending upon the requirement of desilting of the particular area in the river and depending upon the deposit of the sand in the subject area. https://hcservices.ecourts.gov.in/hcservices/ viii) Many of the river beds sand is scooped and not quarried. The scooped pits are regularly refilled with the receding flood waters in the river. Taking note of the flow of water and the periodical refilling the permitted depth of quarrying is decided by the above mentioned authorities keeping in view the environmental and ecological aspects. ix) Since the sand deposit occurs in the