CHENNAI: A division bench of the Madurai bench of Madras High Court has upheld an order dated November 29, 2017 of a single judge totally banning river sand quarrying within six months in the State and permitting import of sand from other countries, more particularly Malaysia.
“This court is of the view that the appellants - the administration of Thoothukudi, Kanniyakumari and Tirunelveli districts, police and other agencies -- have not made out any case for interference with the order of the single judge. Hence, the writ appeal is dismissed and the appellants are directed to strictly comply with the directives of the judge”, a bench of Justices K Kalyanasundaram and T Krishnavalli said on Friday.
The bench was dismissing the writ appeal, which contended that the provisions of TN Prevention of Illegal Mining and Transportation and Storage of Minerals and Mineral Dealer Rules 2011 are applicable and the definition of ‘sand’ under Rule 38 (c) of TN Minor Mineral Concession Rules, could be relied on, as both were framed by drawing power under the Mines and Minerals (Development and Regulation) (MMRD) Act.
The State has powers to control the storage and transportation of imported sand also and that the imported sand is silica sand and therefore, it could not be used for construction and it should be used only for industrial purposes and that the single judge had issued certain directives as if it was a public interest litigation, by travelling beyond the scope of the writ petition, the appeal contended.
Rejecting the contentions, the bench observed that the courts have stepped in to protect environment whenever the State has failed in its duty under Article 48 A and 51 A of the Constitution. Also, from various reports of the authorities concerned, it is evident that the directives and orders of the Supreme Court and this court had been violated and the illegal mining activity has not been curbed and the mining has been continuing beyond permissible limits, causing irreparable damage to the ecology.
The scope of judicial review is not limited to validity of enactments alone but would also be applicable to policy decisions when the decisions either directly or indirectly violate the fundamental rights, more so in cases where the interest of the public is at stake. If the ecology is not protected, there is no doubt that it will endanger the very existence of human life. Therefore, as a custodian of the fundamental rights and the constitutional rights, it is the duty of this court to ensure that the environment is protected and is not subjected to degradation, when the authorities have failed.
The bench also observed that illegal mining in the State has not stopped and the Environment Impact Assessment has also not been obtained by following the due procedures. The same is evident from the number of cases filed in 2017 for release of vehicles which illegally transported sand. “Under this background, when the directions issued by the single judge are examined, this court is of the view that the directions are not legislative directions but only directions issued for non-compliance of statutory provisions and for failure to safeguard the environment, which in the opinion of this court, is a duty enshrined on the High Court under the Constitution.
Further, when there is an alternate source of sand this court is of the view that the directions cannot be termed as beyond the scope of the writ petition. Insofar as the judgment of the Apex Court relied upon by the appellants, this court is of the view that the judgment is not applicable to the present facts of this case.
The directions issued are not in the nature of legislative directions but only in exercise of power under Article 226 of the Constitution because of the failure of the State to protect the river beds which have gone beyond resurrection, the bench further said.