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Before the Madurai Bench of Madras High Court Dated : 6-08-2014 Coram The Honourable Mr.Justice V.RAMASUBRAMANIAN and The Honourable Ms.Justice V.M.VELUMANI Writ Petition (MD) No.7146 of 2014 Writ Petition (MD) No.7147 to 7157, 7767 to 7772 of 2014, 9265 & 9654 of 2012, 16789 of 2013 & 9153 of 2014 & M.P.(MD)Nos.3 and 3 of 2014 respectively in WP.Nos.7146 and 7147 of 2014 & all other connected pending MPs W.P.No.7146 to 7157 of 2014 Kollidam Aaru Pathukappu Nala Sangam rep.by its President R.Subramanian ...Petitioner W.P.Nos.7767 to 7772 of 2014 P.Ettikkan ...Petitioner Vs 1.The Union of India, rep.by its Secretary to Government, Ministry of Environment & Forests, New Delhi-110011. 2.The Member Secretary, State Level Environment Impact Assessment Authority III Floor, Panagal Maaligai, Chennai-15. ...Respondents in all WPs 3.The Executive Engineer, Public Works Department/WRO, R.C.Division, Cantonment Trichy. ...Respondent in WPs.7146 to 7149, 7151 to 7157 and 7767 to 7772/2014 4.The Executive Engineer, Public Works Department/WRD, Cauvery Basin Division, Thanjavur-613001. ...Respondent in WP.No.7150/2014 5.The National Green Tribunal, Southern Zone rep.by its Registrar, Arumbakkam, Chennai. ...Respondent in all WPs 6.Tamilnadu Sand Lorry Owners Federation rep.by its President Mr.Sella Rajamani ...Proposed Party in WP.7146/2014 7.M.Anand ...Proposed Party in WP.7147/2014 W.P.No.7146 of 2014 Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.73 of 2013 dated 24.2.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.595/E/1(a)/40/2012 dated 30.11.2012 and direct the third respondent to abstain from quarrying at Mangammalpuram sand quarry in River Kollidam at Mile 20/0 to 20/1 at S.F.No.217, Mangammalpuram Village in Lalgudi Taluk of Trichy District forthwith. W.P.No.7147 of 2014 Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.74 of 2013 dated 24.2.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.558/E/1(a)/23/2012 dated 8.11.2012 and direct the third respondent to abstain from quarrying at Ayyampalayam sand quarry in River Kollidam at Mile 103/3+65m to 103/5+15m at S.F.No.540/2, Ayyampalayam Village in Musiri Taluk of Trichy District forthwith. W.P.No.7148 of 2014 Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.75 of 2013 dated 24.2.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.561/E/1(a)/25/2012 dated 28.11.2012 and direct the third respondent to abstain from quarrying at Perugamani sand quarry in River Cauvery at Mile 107/4 to 107/6 + 100m at S.F.No.116, Perugamani Village in Srirangam Taluk of Trichy District forthwith. W.P.No.7149 of 2014 Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.76 of 2013 dated 24.2.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.566/E/1(a)/12/2012 dated 26.10.2012 and direct the third respondent to abstain from quarrying at Valavanur sand quarry in River Kollidam at Mile 11/6 to 12/1 at S.F.No.131, Valavanur Village in Lalgudi Taluk of Trichy District forthwith. W.P.No.7150 of 2014 : Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.79 of 2013 dated 24.2.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.585/E/1(a)/18/2012 dated 26.10.2012 and direct the third respondent to abstain from quarrying at Thiruchennampoondi sand quarry in River Kollidam at Mile 21/6 to 22/1+50m at S.F.No.1/1, Thiruchennampoondi Village in Thiruvaiyaru Taluk of Thanjavur District forthwith. W.P.No.7151 of 2014 Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.82 of 2013 dated 24.2.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.565/E/1(a)/36/2012 dated 28.11.2012 and direct the third respondent to abstain from quarrying at Sevathinathapuram sand quarry in River Kollidam at Mile 14/6 to 15/1 at S.F.No.110, Sevathinathapuram Village in Lalgudi Taluk of Trichy District forthwith. W.P.No.7152 of 2014 Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.83 of 2013 dated 24.2.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.557/E/1(a)/21/2012 dated 7.11.2012 and direct the third respondent to abstain from quarrying at Amoor sand quarry in River Cauvery at Mile 106/5+50m to 106/7+30m at S.F.No.131, Amoor Village in Musiri Taluk of Trichy District forthwith. W.P.No.7153 of 2014 : Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.85 of 2013 dated 24.2.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.567/E/1(a)/34/2012 dated 28.11.2012 and direct the third respondent to abstain from quarrying at Koohur sand quarry in River Kollidam at Mile 19/0 to 19/3 at S.F.No.144, Koohur Village in Lalgudi Taluk of Trichy District forthwith. W.P.No.7154 of 2014 Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.81 of 2013 dated 24.2.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.566/E/1(a)/35/2012 dated 28.11.2012 and direct the third respondent to abstain from quarrying at Appathurai sand quarry in River Kollidam at Mile 9/7 to 10/2+100m at S.F.No.135, Appathurai Village in Lalgudi Taluk of Trichy District forthwith. W.P.No.7155 of 2014 : Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.86 of 2013 dated 24.2.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.566/E/1(a)/22/2012 dated 9.11.2012 and direct the third respondent to abstain from quarrying at Natham sand quarry in River Cauvery at Mile 86/5+40m to 86/7 at S.F.No.383, Natham Village in Thottiam Taluk of Trichy District forthwith. W.P.No.7156 of 2014 : Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.89 of 2013 dated 24.2.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.568/E/1(a)/24/2012 dated 8.11.2012 and direct the third respondent to abstain from quarrying at Edayathumangalam sand quarry in River Kollidam at Mile 15/4 to 16/2+100m at S.F.No.160/6, Edayathumangalam Village in Lalgudi Taluk of Trichy District forthwith. W.P.No.7157 of 2014 : Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.80 of 2013 dated 24.2.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.569/E/1(a)/9/2012 dated 26.10.2012 and direct the third respondent to abstain from quarrying at Thirumanamedu sand quarry in River Kollidam at Mile 13/6 to 14/1 at S.F.No.161, Thirumanamedu Village in Lalgudi Taluk of Trichy District forthwith. W.P.No.7767 of 2014 : Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.164 of 2013 (SZ) dated 7.3.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.554/EC/1(a)/13/ 2012 dated 26.10.2012 and direct the third respondent to abstain from quarrying at Rajendram sand quarry in River Cauvery at Mile 99/6 to 100/0 +100m at S.F.No.337/1 (part) of Rajendram Village in Kulithalai Taluk of Karur District forthwith. W.P.No.7768 of 2014 : Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.165 of 2013 (SZ) dated 7.3.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.550/EC/1(a)/41/ 2012 dated 30.11.2012 and direct the third respondent to abstain from quarrying at Nerur South sand quarry in River Cauvery at Mile 79/4+50m to 79/5m at S.F.No.2596/B of Nerur South Village in Karur Taluk of Karur District forthwith. W.P.No.7769 of 2014 : Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.166 of 2013 (SZ) dated 7.3.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.549/EC/1(a)/7/2012 dated 26.10.2012 and direct the third respondent to abstain from quarrying at Nanniyur sand quarry in River Cauvery at Mile 70/7+50m to 71/2+150m at S.F.No.539 of Nanniyur Village in Karur Taluk of Karur District forthwith. W.P.No.7770 of 2014 : Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.167 of 2013 (SZ) dated 7.3.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.548/EC/1(a)/4/2012 dated 26.10.2012 and direct the third respondent to abstain from quarrying at Achammapuram (Tirumukkudalur) sand quarry in River Cauvery at Mile 80/2+100m to 80/6+25m at S.F.No.265/1 of Achammapuram (Tirumukkudalur) Village in Karur Taluk of Karur District forthwith. W.P.No.7771 of 2014 : Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.168 of 2013 (SZ) dated 7.3.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.553/EC/1(a)/39/ 2012 dated 30.11.2012 and direct the third respondent to abstain from quarrying at Vaiganallur sand quarry in River Cauvery at Mile 98/7+99/1m at S.F.No.1/2 (part) of Vaiganallur Village in Kulithalai Taluk of Karur District forthwith. W.P.No.7772 of 2014 : Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the fourth respondent in Appeal No.169 of 2013 (SZ) dated 7.3.2014, quash the same by setting aside the order of the second respondent in letter No.SEIAA/TN/F.552/EC/1(a)/5/2012 dated 26.10.2012 and direct the third respondent to abstain from quarrying at Kallapalli sand quarry in River Cauvery at Mile 70/1+50m to 71/2+50m at S.F.No.1 (part) of Kallapalli Village in Krishnarayapuram Taluk of Karur District forthwith. !For Petitioner in W.P.Nos.7146 to 7157 of 2014 : Mr.T.Mohan for Mr.Renga Nandakumar For Petitioner in W.P.Nos.7767 to 7772 of 2014 : Mrs.U.Nirmala Rani : Mr.A.L.Somayaji, Advocate For State General assisted by Mr.S.Abdul Saleem and Mr.A.Baskarapandian, AGP ^For Central Government : Mr.K.K.Senthilvelan, ASG For State Level Environment Impact Assessment Authority : Mr.R.Muthukumarasamy, SC for Mr.S.Sethuraman For Proposed Party in MP.No. 3/2014 in WP.No.7146/2014 : Mr.M.Subash Babu For Proposed Party in MP.NO. 3/2014 in WP.No.7147/2014 : Mr.V.Karuna :COMMON ORDER V.RAMASUBRAMANIAN,J All these writ petitions question the correctness of the orders passed by the Southern Regional Bench of the National Green Tribunal dated 24.2.2014. 2. We have heard Mr.T.Mohan and Mrs.U.Nirmala Rani, learned counsel appearing for the petitioners, Mr.A.L.Somayaji, learned Advocate General appearing for the State, Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the State Level Environment Impact Assessment Authority (hereinafter referred to as the SEIAA), Mr.K.K.Senthilvelan, learned Assistant Solicitor General appearing for the Union of India and Mr.M.Subash Babu and Mr.V.Karuna learned counsel appearing for the parties, who seek to implead themselves in the writ petitions. 3. After intensive quarrying in the volumes and volumes of papers filed before us, the factual matrix unearthed could be summarized as follows : (a) In exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986, read with clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986, the Central Government issued The Environment Impact Assessment (hereinafter referred to as the EIA) Notification, on 14.9.2006, directing that on and from the date of its publication, the construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule to the notification entailing capacity addition with change in process and or technology, shall be undertaken in any part of India only after the prior environmental clearance from the Central Government or as the case may be, by the State Level Environment Impact Assessment Authority, duly constituted by the Central Government under sub- section (3) of section 3 of the said Act, in accordance with the procedure specified hereinafter in this notification. (b) On 27.2.2012, the Supreme Court passed an order in Deepak Kumar and Others Vs. State of Haryana & Others [2012 (4) SCC 629] holding that leases of minor minerals as well as their renewal, be granted by the States/Union Territories in certain cases only after getting environmental clearance. (c) On 3.8.2012, this Court passed an order in a batch of cases in W.P. No.4699 of 2012 etc., mandating environmental clearance before commencement of sand mining. The SEIAA was also directed to pass orders within 2 months on the project proposal of the Public Works Department of the State Government. (d) Therefore, on 28.8.2012, a joint meeting was convened between the SEIAA and the State Experts Appraisal Committee on formulation of interim guidelines. (e) Thereafter, the SEIAA filed a petition for extension of time for processing the proposal of the PWD. However, it was not effectively pursued. (f) But on 27.09.2012, the SEIAA issued a set of adhoc interim guidelines for processing applications/project proposals, till the MOEF issued revised guidelines. On the basis of those guidelines, the SEIAA also granted Environmental Clearances to the Public Works Department of the State of Tamilnadu on 30-11-2012 valid for a period of 5 years. (g) Consequently, the review applications filed by the Government before this court, seeking a review of the order dated 3-8-2012 were dismissed on 12.12.2012 and the copies of the environment clearances were handed over to the concerned writ petitioners. (h) Challenging the said environment clearances, appeals were filed before the National Green Tribunal, South Zone at Chennai in February 2013. (i) During the pendency of the appeals, the Ministry of Environment and Forests (hereinafter referred to as the MoEF) issued revised guidelines on 24.12.2013 on sub-categorisation of B projects. (j) On 24.2.2014, the National Green Tribunal, Southern Regional Bench disposed of all the appeals holding that after the issue of the revised guidelines by the MoEF, the Public Works Department of the State has to get clearance only under those guidelines and that since it would take time, the State Government can continue to quarry for 6 months (that is upto 24-8-2014) on the basis of the Environmental Clearances granted by the SEIAA. (k) As against the order of the Southern Regional Bench of the National Green Tribunal dated 24.2.2014, the petitioners have come up with the above writ petitions. 4. The first batch of writ petitions were admitted on 23.4.2014 and we ordered notice in the petitions for stay. After notice, we passed a very limited order on 30.4.2014 in all the above writ petitions, (i) restraining the respondents from carrying on in-stream mining and (ii) also restraining the respondents from carrying on mechanized mining. 5. As against the said order, the State filed civil appeals in Civil Appeal Nos.5531 to 5548 of 2014. On 9.5.2014, the Supreme Court disposed of the civil appeals, vacating the interim orders passed by us and directing the High Court to dispose of the writ petitions finally. Therefore, the writ petitions were taken up for hearing and we have heard all parties concerned. 6. Before proceeding to consider the rival contentions on merits, it is necessary to deal with the question of maintainability first. MAINTAINABILITY : 7. The National Green Tribunal was constituted in terms of the provisions of the National Green Tribunal Act, 2010, with the object of providing for the establishment of a Tribunal for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources, including enforcement of any legal right relating to environment. The Tribunal is supposed to consist of (i) a full time Chairman; (ii) not less than 10 but subject to a maximum of 20 full time Judicial Members; and (iii) not less than 10 but subject to a maximum of 20 full time Expert Members. 8. Under Section 5(1) of the Act, a person shall not be qualified for appointment as the Chairperson or Judicial Member of the Tribunal unless he is or has been a Judge of the Supreme Court or Chief Justice of a High Court. However, the proviso to Section 5(1) states that a person, who is or who has been a Judge of the High Court shall also be qualified to be appointed as a Judicial Member. 9. The Tribunal is conferred with both Original as well as Appellate jurisdiction. Under Section 14(1), the Tribunal has jurisdiction over all civil cases where a substantial question relating to environment is involved and such question arises out of the implementation of the Enactments specified in Schedule-I. Section 16 also confers Appellate jurisdiction on the Tribunal, over the orders passed either by the Board or by the Appellate Authority or by the State Government under the provisions of the Water (Prevention and Control of Pollution) Act, 1974. The Appellate jurisdiction extends to any order passed under the Forest (Conservation) Act, the Air (Prevention and Control of Pollution) Act as well as the Environment (Protection) Act. The nature of the reliefs that could be granted by the Green Tribunal is indicated in Sections 15 and 17. Section 19 indicates that the Tribunal shall not be bound by the procedure laid down by the Civil Procedure Code, but shall be guided by the principles of natural justice. The Tribunal can regulate its own procedure and it is not bound by the rules of evidence contained in the Evidence Act. Section 20 states that while passing any order or taking any decision, the Tribunal should apply the principles of sustainable development, precautionary principle and the polluter pays principle. 10. Section 22 of the Act provides for a remedy of appeal to the Supreme Court as against an order of the Tribunal. It reads as follows : "Any person aggrieved by any award, decision or order of the Tribunal, may file an appeal to the Supreme Court, within ninety days from the date of communication of the award, decision or order of the Tribunal, to him, on any one or more of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (5 of 1908) : Provided that the Supreme Court may entertain any appeal after the expiry of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal." 11. Section 25 makes an award or order or decision of the National Green Tribunal, executable as a decree of a civil court. Section 29 bars the jurisdiction of the civil court and it reads as follows : "(1) With effect from the date of establishment of the Tribunal under this Act, no civil court shall have jurisdiction to entertain any appeal in respect of any matter, which the Tribunal is empowered to determine under its appellate jurisdiction. (2) No civil court shall have jurisdiction to settle dispute or entertain any question relating to any claim for granting any relief or compensation or restitution of property damaged or environment damaged which may be adjudicated upon by the Tribunal, and no injunction in respect of any action taken or to be taken by or before the Tribunal in respect of the settlement of such dispute or any such claim for granting any relief or compensation or restitution of property damaged or environment damaged shall be granted by the civil court." 12. Section 33 contains a declaration to the effect that the provisions of the Act will have overriding effect and it reads as follows : "The provisions of this Act, shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act." 13. In the light of the above provisions, it is contended by the learned Advocate General and Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the SEIAA that the writ petitions are not maintainable. However, Mr.A.L. Somayaji, learned Advocate General also brought to our notice that another Division Bench of this Court has held at least prima facie that a writ petition challenging the order of the National Green Tribunal is maintainable. 14. This decision was in Vijayalakshmi Shanmugam Vs. Secretary to Government [W.P.SR.Nos.7001, 7004 and 7006 of 2014] dated 4.2.2014. In the said decision, the Division Bench relied upon the decision of the Constitution Bench of the Supreme Court in L.Chandrakumar Vs. Union of India [1997 (3) SCC 261] and a decision of the Full Bench of this Court in Sanjos Jewellers Vs. Syndicate Bank [2007 (5) CTC 305]. Moreover, in an order passed by the Supreme Court in S.L.P.(Civil) Nos.27886 -27887 of 2012 arising out of the orders of the Armed Forces Appellate Tribunal, the Supreme Court made it clear that the pendency of the special leave petitions will not be an impediment for the High Courts to entertain the writ petitions against the orders of the Armed Forces Tribunal. 15. Therefore, the learned Advocate General stated that the issue of maintainability is not so far finally decided, either by this Court or by the Supreme Court. Hence, we may have to deal with it in extenso, which we shall do at present. 16. The creation of every Tribunal or an alternative forum and the exclusion of jurisdiction of normal civil courts have always given rise to a vexed question about the nature and extent of ouster of jurisdiction of courts. So long as the ouster of jurisdiction was confined only to the normal civil courts, the issue did not assume larger proportions. But, the moment the creation of a Tribunal led to the bar of jurisdiction of the Constitutional Court itself, the question assumed greater significance. 17. Part XIV-A with the heading "Tribunals" was inserted in The Constitution, under The Constitution (42nd Amendment) Act, 1976. This part comprises of two Articles namely 323A and 323B. While Article 323A empowered the Parliament to create Administrative Tribunals, by law, for the adjudication or trial of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or any local or other authority, Article 323B empowers the Parliament to create Tribunals for the resolution of any disputes, complaints or offenses with respect to taxation, foreign exchange, labour dispute, land reforms, elections, essential goods, etc. 18. In pursuance of the power so vested under Article 323A, the Parliament enacted the Administrative Tribunals Act, 1985. The Act created the Tribunal as a substitute for the High Court and ousted the jurisdiction of all courts including that of the High Court under Article 226. Therefore, a challenge to the vires of the Act was made before the Supreme Court under Article 32 in S.P.Sampathkumar Vs. Union of India & Others [1987 (1) SCC 124]. While upholding the validity of the Act, the Supreme Court pointed out in S.P.Sampathkumar that to create a Tribunal as an additional forum, from where the parties could go to the High Court, would certainly have been a retrograde step. The only silver-lining indicated by the Supreme Court in S.P.Sampathkumar was that certain things have to be done for making the Administrative Tribunal a real substitute for the High Court, not only in form and de jure, but also in content and de facto. 19. After S.P.Sampathkumar, the next case to come up before the Supreme Court was the one in R.K.Jain Vs. Union of India [1993 (4) SCC 119]. In the said decision, K.Ramaswamy,J, in his independent opinion, indicated in paragraph 67 that the Tribunals set up under Articles 323A and 323B of The Constitution or under an Act of Legislature are creatures of the Statute and that in no case can they claim the status of Judges of the High Court or parity or claim to be substitutes. It would be of interest to note that the learned Judge referred to the decision of the Constitution Bench in S.P.Sampathkumar and still pointed out in paragraph 66 that what was meant by the Court in S.P.Sampathkumar was that the Tribunals are created as an institutional alternative mechanism to adjudicate service disputations. The learned Judge held towards the end of paragraph 66 of the report in R.K.Jain that ?this Court did not appear to have meant that the Tribunals are substitutes of the High Court under Articles 226 and 227 of The Constitution.? Consequently, the Bench pointed out in paragraph 70 that ? judicial review is the basic and essential feature of the Indian Constitutional Scheme entrusted to the Judiciary? and that ?it cannot be dispensed with by creating a Tribunal under Articles 323A and 323B of The Constitution.? The Court further held that ?any institutional mechanism or Authority in negation of a judicial review is destructive of basic structure.? 20. An argument was advanced before the Supreme Court in R.K.Jain that many of the Statutes creating such Tribunals either in terms of Article 323A or in terms of Article 323B, provided for a right of appeal to the Supreme Court and that therefore, the High Court cannot exercise the power of judicial review under Article 226. But, the said argument was rejected in clear terms by K.Ramaswamy,J in paragraph 76 of the report in R.K.Jain. The relevant portion of paragraph 76 of the report in R.K.Jain reads as follows : ?The remedy of appeal by special leave under Article 136 to this Court also proves to be costly and prohibitive and far-flung distance too is working a constant constraint to litigant public who could ill afford to reach this Court. An appeal to a Bench of two Judges of the respective High Courts over the orders of the Tribunals within its territorial jurisdiction on questions of law would assuage a growing feeling of injustice of those who can ill afford to approach the Supreme Court.? Therefore, the argument that a remedy of appeal is available to the Supreme Court was clearly rejected in R.K.Jain. A careful look at the majority opinion rendered in R.K.Jain would show that they did not express any dissent on the views expressed by K.Ramaswamy,J with regard to the availability of the power of judicial review under Articles 226/227. 21. After R.K.Jain came the decision of the Supreme Court in L.Chandrakumar. In L.Chandrakumar, the Supreme Court held that the power of judicial review over legislative action vested with the High Courts under Article 226 and the Supreme Court under Article 32 is an integral and essential feature of The Constitution, constituting part of its basic structure. In paragraph 79, the Supreme Court specifically held that ?the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of The Constitution.? As a consequence of the aforesaid conclusion, the Larger Bench of the Supreme Court struck down as unconstitutional, in L.Chandrakumar, Clause (2)(d) of Article 323A and Clause (3)(d) of Article 323B, to the extent they excluded the jurisdiction of the High Courts and the Supreme Court. The Supreme Court also declared as unconstitutional, Section 28 of the Administrative Tribunals Act, to the extent that it excluded the jurisdiction of the High Court. More specifically, the Larger Bench held in paragraph 99 as follows : ?Section 28 of the Administrative Tribunals Act, 1985 and the 'exclusion of jurisdiction' Clauses in all other legislations enacted under the aegis of Articles 323A and 323B are, to the same extent, unconstitutional.? 22. The Supreme Court emphasized in L.Chandrakumar that ?the jurisdiction conferred upon the High Court under Articles 226 and 227 and upon the Supreme Court under Article 32 is a part of the inviolable basic structure of The Constitution.? In paragraphs 91 and 92, the Supreme Court held as follows : "We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Article 226/227 cannot wholly be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of The Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of The Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Article 226/227 of The Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter. It has also been contended before us that even in dealing with cases which are properly before the Tribunals, the manner in which justice is dispensed by them leaves much to be desired. Moreover, the remedy provided in the parent statutes, by way of an appeal by special leave under Article 136 of The Constitution, is too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a First Appellate Court. We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of Tribunals under Article 227 of The Constitution. In R.K.Jain's case, after taking note of these facts, it was suggested that the possibility of an appeal from the Tribunals on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls, be pursued. It appears that no follow-up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the afore-stated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323A or Article 323B of The Constitution, will be subject to the High Court's writ jurisdiction under Articles 226/227 of The Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls." 23. It should be noted that though the Supreme Court was mainly concerned with the scope of judicial review of the orders of the Administrative Tribunals, the Supreme Court declared as unconstitutional, all the 'exclusion of jurisdiction' clauses in all similar enactments. This is perhaps the reason why the National Green Tribunal Act, does not specifically exclude the jurisdiction of the High Courts. The National Green Tribunal Act specifically excludes the jurisdiction of the civil courts under Section 29, but, it does not exclude the jurisdiction of the High Court. It nevertheless provides for a right of appeal under Section 22 to the Supreme Court. But, this right of appeal provided to the Supreme Court has to be understood in the context of the observations made in paragraph 76 of the decision in R.K.Jain. 24. After L.Chandrakumar, which emanated from Madras Bar, it was the turn of the Delhi Bar in Union of India Vs. Delhi High Court Bar Association [2002 (4) SCC 275]. The said case related to the challenge to the constitutional validity of the Recovery of Debts due to Banks and Financial Institutions Act, 1993. While upholding the validity of the Act, the Supreme Court pointed out in paragraph 25 that the 1993 Act provided for a remedy of appeal to an Appellate Tribunal, whose decision was also not final in view of the fact that the same could be subjected to judicial review by the High Court under Articles 226 and 227. In other words, one of the grounds, on which the 1993 Act was saved was that the power of judicial review of the High Court was not taken away by the creation of the Tribunal. 25. In State of Karnataka Vs. Vishwabharathi House Building Cooperative Society [2003 (2) SCC 412], the Supreme Court was concerned with the constitutionality of the Consumer Protection Act, 1986. After taking note of various provisions of the Act, the Supreme Court pointed out in paragraph 41 that ?by reason of the provisions of the Act, the power of judicial review of the High Court, which is a basic feature of The Constitution, has not been nor could be taken away.? In paragraph 53 of its decision in Vishwabharathi, the Supreme Court pointed out as follows : ?The provisions relating to power to approach the Appellate Court by a party aggrieved by a decision of the Forums/State Commissions as also the power of the High Court and this Court under Articles 226/227 of The Constitution of India and Article 32 of this Court apart from Section 23 of the Act provide for adequate safe-guards.? 26. Therefore, it is clear from the decision of the Three Member Bench of the Supreme Court in Vishwabharathi that the provision of a three tier mechanism, the first at the District Level, the second at the State Level and the third at the National Level, did not take away the power of judicial review of this Court under Articles 226 and 227. This decision is of significance, in view of the fact that the Consumer Protection Act 1986 provides for a remedy of appeal to the State Consumer Commission against an award of the District Consumer Forum and it also provides for a remedy of further appeal against the order of the State Commission to the National Commission. The provision of such a three tier mechanism alone was not taken by the Supreme Court as sufficient to uphold the validity of the Act. The availability of the power of judicial review to the High Court under Articles 226 and 227 was also taken as a factor by the Supreme Court for upholding the validity of the Act. 27. The next decision of the Supreme Court was that of a Nine Member Bench in I.R.Coelho (dead) by L.Rs. Vs State of Tamilnadu [2007 (2) SCC 1]. What led to a reference to the Nine Judges Bench was the question as to whether the protection afforded by Article 31B of The Constitution, was available to the laws added to the 9th Schedule by way of amendments issued after 24.4.1973, the date on which, the decision in Kesavananda Bharati Vs. State of Kerala [AIR 1973 SC 1461] came. The necessity for such a reference arose in view of the attempts made by the Parliament to include several laws in the 9th Schedule, so as to get over the difficulty posed by the basic structure theory propounded and accepted in Kesavananda Bharati. In paragraphs 135 and 136 of its decision in I.R.Coelho, the Supreme Court dealt with the question as to whether the exclusion of judicial review was compatible with the doctrine of basic structure. It was held in paragraphs 135 and 136 as follows : ?Exclusion of Judicial review if compatible with the doctrine of basic structure ? concept of judicial review : 135. Judicial review is justified by combination of 'the principle of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review' (Democracy Through Law by Lord Styen, p.131). 136. The role of the judiciary is to protect fundamental rights. A modern democracy is based on the twin principles of majority rule and the need to protect fundamental rights. According to Lord Styen, it is job of the judiciary to balance the principles ensuring that the Government on the basis of number does not override fundamental rights.? 28. Though the decision of a Five Judges Bench of the Supreme Court in State of West Bengal & Others Vs. Committee for Protection of Democratic Rights, West Bengal & Others [2010 (3) SCC 571] arose in a different context with regard to the power of the High Court to order an investigation by the Central Bureau of Investigation, the Supreme Court considered in that case, the question whether the power under Articles 226/227 was part of the basic structure. In paragraph 39 of its decision, the Supreme Court pointed out that the power of judicial review stands on a different pedestal and that being part of the basic structure of The Constitution, it cannot be ousted or abridged even by a Constitutional amendment. Again in paragraph 51, the Court pointed out that the power of judicial review vested in the Supreme Court and the High Courts is an integral part and essential feature of The Constitution, constituting part of its basic structure. While eliciting the conclusions that the Constitution Bench reached in the said decision, the Supreme Court held in paragraphs 68(iii) and (v) as follows : ?In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of The Constitution the power of judicial review being an integral part of the basic structure of The Constitution, no Act of Parliament can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of The Constitution embodied in Part III and other parts of The Constitution. Moreover, in a federal constitution, the distribution of legislative powers between Parliament and the State Legislature involves limitation on legislative powers and therefore, this requires an authority other than Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of 'the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review.' ....
Restriction on Parliament by The Constitution and restriction on the Executive by Parliament under an enactment do not amount to restriction on the power of the Judiciary under Articles 32 and 226 of The Constitution.?
29. In A.K.Behera Vs. Union of India & another [2010 (11) SCC 322], the decision of the Government of India to abolish the post of Vice Chairman of the Central Administrative Tribunal and the insertion of Section 10A into the Administrative Tribunals Act, 1985 was under challenge. By a 2:1 majority, the Supreme Court rejected the challenge. However, in his dissenting opinion, Dalveer Bhandari,J indicated in paragraph 74 of the decision that the power of judicial review is a basic and essential feature of The Constitution and that no law passed by the Parliament can abrogate it or take it away. The learned Judge pointed out that if the power of judicial review is abrogated or taken away, The Constitution will cease to be what it is.
30. In Indra Das Vs. State of Assam [2011 (3) SCC 380], the Supreme Court was concerned with the conviction of a person under Section 3(5) of Terrorist and Disruptive Activities (Prevention) Act. In paragraph 24 of the said decision, it was pointed out by the Court that the Constitution is the highest law of the land and that no statute can violate it. If there is a statute, which appears to violate The Constitution, the Court can either declare it unconstitutional or read it down to make it constitutional.
31. Therefore, from all the above decisions, it is quite clear that the power of judicial review conferred upon this Court under Articles 226/227, is part of the basic structure of The Constitution, which cannot be taken away even by a law enacted by the Parliament. As a matter of fact, the National Green Tribunal Act, 2010 does not expressly exclude the jurisdiction of this Court under Articles 226/227. Though it excludes the jurisdiction of the normal civil courts under Section 29, there is no express exclusion of the jurisdiction of this Court. The respondents seek to read into Section 22 of the National Green Tribunal Act, 2010, an implied exclusion of the jurisdiction of this Court. As we have pointed out earlier, Section 22 provides for a remedy of appeal to the Supreme Court, to any person aggrieved by any award, decision or order of the Tribunal. As seen from the language of Section 22, the appeal is almost like a second appeal on a substantial question of law.
32. As we have pointed out earlier, the National Green Tribunal exercises both Original jurisdiction (under Section 14) as well as Appellate jurisdiction (under Section 16). Irrespective of whether an order passed by the National Green Tribunal was in its Original or Appellate jurisdiction, the right of appeal to the Supreme Court under Section 22 is put to the same tests as that of a Second Appeal under Section 100 of the Civil Procedure Code.
33. As a matter of fact, Section 29 of the National Green Tribunal Act, bars the jurisdiction of the civil courts. It can be compared with the language of Section 28 of the Administrative Tribunals Act, 1985 as it stood before the decision of the Supreme Court in L.Chandrakumar. Section 28 of the Administrative Tribunals Act, read as follows :
?Exclusion of jurisdiction of courts except the Supreme Court under Article 136 of The Constitution :
On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any service or post or service matters concerning members of any service or persons appointed to any service or post, no court except, (a) the Supreme Court; or (b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for time being in force, shall have or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters.?
34. As we have pointed out earlier, the Supreme Court not merely struck down Clause (2)(d) of Article 323A and Clause (3)(d) of Article 323B, but also struck down Section 28 of the Administrative Tribunals Act, to the extent it excluded the jurisdiction of this Court under Articles 226/227. The Constitution Bench did not stop there. The Supreme Court went to the extent of declaring all 'exclusion of jurisdiction' clauses in all similar enactments also as unconstitutional.
35. Therefore, if the Parliament had actually included in Section 29 of the National Green Tribunal Act, 2010, a specific exclusion of the jurisdiction of the High Courts under Articles 226/227, the same would have been hit by the express declaration made in L.Chandrakumar. If an express exclusion could have been burnt to ashes in the fire ignited in L.Chandrakumar, we do not know how an implied exclusion could survive.
36. However, Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the SEIAA, relied upon two decisions of the Supreme Court, one in T.Sudhakar Prasad Vs. Government of A.P. [2001 (1) SCC 516] and another in R.Mohajan Vs. Shefali Sengupta [2012 (4) SCC 761].
37. In T.Sudhakar Prasad, the Supreme Court was concerned with two fundamental questions. One was as to whether the Administrative Tribunals have the power to punish a person for its contempt. The second question was whether, after the decision in L.Chandrakumar, Section 17 of the Administrative Tribunals Act survived or had been rendered otiose.
38. The facts leading to the decision of the Supreme Court in T.Sudhakar Prasad are note worthy. In that case, an application was filed before the Andhra Pradesh Administrative Tribunal under Section 17 of the Administrative Tribunals Act, invoking its contempt jurisdiction. The Tribunal issued notice and the State of Andhra Pradesh challenged before the High Court, the jurisdiction of the Tribunal to take cognizance of the alleged contempt. In yet another matter, a contempt petition was filed directly on the file of the High Court of Andhra Pradesh, complaining of willful disobedience of the order of the Andhra Pradesh Administrative Tribunal, ignoring Section 17 of the Administrative Tribunals Act, 1985. When both the matters were taken up together by a Division Bench of the Andhra Pradesh High Court, the High Court held that after the decision of the Supreme Court in L.Chandrakumar, Section 17 of the Administrative Tribunals Act did not survive and that consequently the Administrative Tribunals cannot exercise contempt jurisdiction under Section 17. The High Court further held that a person, complaining of disobedience of the orders of the Administrative Tribunal, could as well approach the High Court under the provisions of the Contempt of Courts Act, 1971, which empowers the High Court to punish a person for contempt of orders of the Subordinate Courts.
39. Aggrieved by the decision of the Andhra Pradesh High Court, the employee went on appeal to the Supreme Court. After taking note of the discussion in L.Chandrakumar, the Supreme Court held in paragraph 17 as follows :
?The Supreme Court in the case of L.Chandrakumar has nowhere said that orders of the Tribunal holding the contemner guilty and punishing for contempt shall also be subject to judicial scrutiny of the High Court under Articles 226/227 of The Constitution in spite of remedy of statutory appeal provided by Section 19 of the Contempt of Courts Act being available. The distinction between orders passed by the Administrative Tribunal on matters covered by Section 14(1) of the Administrative Tribunals Act and orders punishing for contempt under Section 19 of the Contempt of Courts Act read with Section 17 of the Administrative Tribunals Act, is this : as against the former there is no remedy of appeal statutorily provided, but as against the latter statutory remedy of appeal is provided by Section 19 of the Contempt of Courts Act itself.?
40. The aforesaid decision rendered by a Three Member Bench in T.Sudhakar Prasad was followed by the Supreme Court in R.Mohajan. After extracting the decision in T.Sudhakar Prasad, the Supreme Court held in R.Mohajan that as against a notice issued by the Central Administrative Tribunal in exercise of its contempt jurisdiction under Section 17 of the Administrative Tribunals Act, an appeal to the Supreme Court would directly lie.
41. Therefore, it is contended by Mr.R.Muthukumarasamy, learned Senior Counsel for the SEIAA that cases where a statutory remedy of appeal is provided, would stand on a different footing than cases where no such statutory remedy of appeal is provided. According to the learned Senior Counsel, a statutory remedy of appeal to the Supreme Court is provided by Section 22 of the National Green Tribunal Act, 2010 and that therefore, the ratio laid down in L.Chandrakumar may not apply to orders passed by the National Green Tribunal.
42. But, we do not think that it is the correct way of understanding the decision in T.Sudhakar Prasad. In paragraph 19 of its decision in T.Sudhakar Prasad, the Supreme Court clarified that ?jurisdiction should not be confused with status and subordination.? After drawing such a fine distinction, the Supreme Court nevertheless pointed out towards the end of paragraph 19 that there is no anathema to the Tribunal exercising the jurisdiction of the High Court and in that sense, being supplemental or additional to the High Court, but at the same time not enjoying the status equivalent to the High Court and also being subject to judicial review and judicial superintendence of the High Court.
43. If we have a careful look at Sections 17 and 28 of the Administrative Tribunals Act, 1985, it would be clear that any order passed by the Administrative Tribunal under Section 17, would have been amenable to the jurisdiction of the Supreme Court under Section 28, before L.Chandrakumar read down Section 28. The only difference brought forth by L.Chandrakumar was that if a person had been punished under Section 17 of the Administrative Tribunals Act, 1985, he could have challenged the same under Articles 226/227 of The Constitution, without invoking the remedy under Section 19 also.
44. What the Supreme Court took exception to, in T.Sudhakar Prasad was the decision reached by the Andhra Pradesh High Court that Section 17 of the Administrative Tribunals Act had also been rendered otiose by the decision in L.Chandrakumar. In L.Chandrakumar, the Constitution Bench of the Supreme Court merely struck down two Sub-Clauses of Articles 323A and 323B and read down Section 28 of the Administrative Tribunals Act, 1985. The Supreme Court did not hold in L.Chandrakumar that the power under Section 17 was not available to the Administrative Tribunals. But, the Andhra Pradesh High Court read into the decision of the Supreme Court in L.Chandrakumar that Section 17 had also been rendered redundant. This is why the Supreme Court clarified in T.Sudhakar Prasad that Section 17 survived despite L.Chandrakumar and that if Section 17 survived, the remedy of appeal under Section 19 of the Contempt of Courts Act also survived. If the power under Section 17 of the Administrative Tribunals Act survived despite L.Chandrakumar and if the right of appeal under Section 19 of the Contempt of Courts Act also survived as a consequence, then there was only one question left open to be decided. It was as to whether a person can directly go to the Supreme Court under Section 19 of the Contempt of Courts Act or should first go before the High Court under Article 226. On this question, the answer is too obvious to state. The statutory remedy of appeal under Section 19 of the Contempt of Courts Act, provided a larger scope for canvassing the correctness of an order punishing a person for contempt. The jurisdiction under Articles 226 and 227 is confined only to the parameters, on which, a judicial review is permissible under The Constitution. Therefore, the Supreme Court came to the conclusion in T.Sudhakar Prasad that it is not possible to exclude the availability of a larger right statutorily conferred, on the ground of availability of a lesser right in terms of the power of superintendence conferred upon this Court.
45. For understanding the decision of the Supreme Court in T.Sudhakar Prasad, it is necessary to have a look at Section 19 of the Contempt of Courts Act, 1971 and have the same compared with Section 22 of the National Green Tribunal Act, 2010. Section 19 of the Contempt of Courts Act reads as follows :
?Appeals. (1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt-
(a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court ;
(b) where the order or decision is that of a Bench, to the Supreme Court :
Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court.
(2) Pending any appeal, the appellate court may order that-
(a) the execution of the punishment or order appealed against be suspended ;
(b) if the appellant is in confinement, he be released on bail and
(c) the appeal be heard notwithstanding that the appellant has not purged his contempt.
(3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub- section (2).
(4) An appeal under sub-section (1) shall be filed-
(a) in the case of an appeal to a Bench of the High Court, within thirty days ;
(b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against.?
46. We have already extracted Section 22 of the National Green Tribunal Act, 2010. We have also pointed out that the right of appeal under Section 22 of the National Green Tribunal Act, 2010 is subject to a very serious restriction namely that it should pass the same test as stipulated in Section 100 of the Civil Procedure Code namely the existence of a substantial question of law. But, an appeal under Section 19 of the Contempt of Courts Act, 1971 is as a matter of right. As can be seen from the language employed in Section 19(1) of the Contempt of Courts Act, 1971, an appeal shall lie ?as of right?.
47. Therefore, the distinction between cases arising under Section 19 of the Contempt of Courts Act and those arising under Section 22 of the National Green Tribunal Act, 2010, is too easy to be seen and deciphered. What is conferred by Section 19 of the Contempt of Courts Act, 1971 is a right, the exercise of which does not depend upon any discretion in the matter of admission of the appeal. In contrast, what is conferred by Section 22 of the National Green Tribunal Act, 2010 , is only a remedy, the availability of which is subject to very serious restrictions and discretion. The availability of a remedy, which is subject to serious restrictions, cannot be equated to a right conferred by the Statute. In T.Sudhakar Prasad, the Andhra Pradesh High Court interpreted the decision of the Supreme Court in L.Chandrakumar in such a manner as to extinguish a statutory right and elevate a discretionary remedy. This is why the Supreme Court stepped in to clear the air of confusion.
48. As we have pointed out earlier, the National Green Tribunal Act, 2010 contains two provisions, one in Section 22 and another in Section 29, with the former providing for a remedy of appeal and the latter barring the jurisdiction of civil courts and not Constitutional Courts. What the respondents want us to do is to read into Section 22, an exclusion of jurisdiction of this Court under Articles 226 and 227. If the National Green Tribunal Act itself had contained a specific provision excluding the jurisdiction of this Court under Articles 226 and 227, the same would have been obviously invalid in view of the specific declaration made in L.Chandrakumar. If an express exclusion, assuming that it had been provided, cannot be saved, we do not know how an implied exclusion could be saved. In view of the above, we reject the objections made by the respondents to the maintainability of the writ petitions.
ON MERITS :
49. Having settled the question of maintainability of the writ petitions, let us now move on to the merits.
50. At the cost of repetition, the brief facts that led to the impugned order of the National Green Tribunal, are summarized with reference to certain historic facts, as follows :
(a) By an order dated 26.7.2002 passed in a contempt petition in Cont.P.No. 561 of 2001, arising out of a writ petition in W.P.No.985 of 2000, this Court directed the State Government to constitute a Committee of Experts comprising of Geologists, Environmentalists and Scientists to study the river and river beds in the State with particular reference to the damage caused on account of indiscriminate sand quarrying operations;
(b) Accordingly, the Government constituted a Six Member High Level Committee. On the basis of the recommendations made by the Committee, the Government inserted Rule 38A of the Tamilnadu Minor Mineral Concession Rules, whereby all existing leases for quarrying sand in Government lands and the permissions granted in ryotwari lands ceased to be effective from 2.10.2003. The right to quarry sand vested with the Government. Therefore, on and from 2.10.2003, all sand quarries in Government lands started getting operated only by the Public Works Department;
(c) The validity of Rule 38A was upheld by the Supreme Court in State of Tamilnadu Vs. P.Krishnamurthy [2006 (4) SCC 517];
(d) By order in G.O.Ms.No.327 Industries dated 1.12.1997, the Government prohibited the use of machinery for quarrying sand from river beds. By another Government Order in G.O.Ms.No.19 Industries Department dated 19.4.2004, Sub-Rule (6) was inserted under Rule 36A of the Tamilnadu Minor Mineral Concession Rules. The said Sub-Rule prohibited the use of machinery for quarrying sand from river beds, except with the permission of the Secretary to Government, Industries Department or anyone authorized by him;
(e) In the year 2010, a batch of writ petitions came to be filed on the file of the Madurai Bench of the Madras High Court in W.P.(MD).No.11182 of 2010 batch of cases, with regard to indiscriminate sand quarrying operations in the river Tamirabarani. By a common order dated 2.12.2010, a Division Bench of this Court issued certain directions, which were applicable also to the quarrying of sand in the other rivers of the State of Tamilnadu. One of the directions issued in paragraph 86 of the said decision was that no poclain or other heavy machinery should be used for sand quarrying and that an amendment in this regard should be made to the Rules within six months;
(f) The Government came up with an application for review of the order. Considering the request, the Division Bench of this Court, by an order dated 10.1.2011, modified its earlier order dated 2.12.2010 and permitted two poclains to be used, during restricted timings.
(g) Thereafter, a batch of writ petitions came to be filed in W.P.(MD).Nos. 4699 of 2012 etc. cases, praying for the issue of Writs of Mandamus to forbear the respondents from carrying on sand quarrying operations along side the stretches of the rivers of Cauvery and Kollidam in Karur, Trichy, Thanjavur, Nagapattinam and Thiruvarur Districts. In the course of hearing of those writ petitions, the Government pointed out that there were about 42 sand quarrying operators operating in the river Cauvery across five districts namely Karur, Trichy, Thanjavur, Thiruvarur and Nagapattinam. Therefore, this Court directed the District Collectors of those five districts to file independent reports giving details about the quarries in operation. Accordingly, those details were filed by the District Collectors.
(h) Thereafter, the Division Bench of this Court disposed of the said writ petitions by a common order dated 3.8.2012. The effect of the order of the Division Bench was that permission for fresh sand quarrying operations in the river Cauvery could be granted by the State Government only after getting environmental clearance from the SEIAA, as per the Notification on the EIA dated 14.9.2006 and the Office Memorandum of the MoEF dated 18.5.2012. The Bench directed some of the existing quarries to be either stopped for ever or to be started after getting environmental clearance. The Bench also directed that quarrying operations are to be carried out only between 7 AM and 5 PM, in areas specifically earmarked by the Public Works Department. The Bench further directed the SEIAA to consider the applications of the State Government/Public Works Department for appropriate permission and to pass orders within a period of two months from the date of receipt of the applications.
(i) It appears that in pursuance of the said order, the Public Works Department started filing project proposals before the SEIAA. Since the Division Bench granted only two months' time to the SEIAA for processing those applications and for passing orders, the SEIAA appears to have sent a letter to the Secretary to Government, MoEF, Government of India on 21.8.2012, requesting them to issue guidelines for processing the applications and project proposals. It was followed by another letter dated 30.8.2012 making a similar request on the ground that the time fixed by the High Court was running out.
(j) By a communication dated 27.9.2012, the SEIAA informed the MoEF that in the absence of any guidelines issued by the MoEF, the SEIAA itself would adopt certain guidelines. The guidelines sought to be adopted by the SEIAA as an interim measure and which were indicated in their letter dated 27.9.2012 to the MoEF, are as follows :
"(i) All mining projects wherein the boundary of the proposed mining area is at least 1.0 KM away form the human habitation/other sensitive areas will be considered for sanction of Environmental Clearance subject to satisfaction of other guidelines.
(ii) If the boundary of the proposed mining area is less than 1.0 KM, the SEAC will inspect the site and assess the various environmental impacts and then recommend/ reject with specific conditions/reasons.
(iii) In case, if the proposed mining area is less than 25.0 Hec, it will be considered as B2 category with Environmental Management Plan, and processed further.
(iv) In case, if the proposed mining area is more than 25.0 Hec, it will be considered as B1 category, which will require preparation of the EIA as per revised model TORs issued by MoEF, Government of India and Public Hearing will be undertaken and the same will be examined in detail for taking a decision on the issue of Environmental Clearance, strictly adhering to Government of India guidelines."
Thereafter, finding no response from the MoEF, the SEIAA granted environmental clearances on 30.11.2012, on the basis of the above adhoc guidelines.
(k) These clearances granted on 30.11.2012 by the SEIAA to the Executive Engineer of the Public Works Department of the Government of Tamilnadu were challenged by various Farmers' Associations and Environmentalists by way of appeals in Appeal Nos.64 to 69, 73 to 76 and 78 to 89 of 2013, under Section 16 of the National Green Tribunal Act, 2010. During the pendency of these appeals, the MoEF issued a fresh Notification dated 24.12.2013. Therefore, these guidelines were placed before the National Green Tribunal, in the course of hearing.
(l) Thereafter, the National Green Tribunal disposed of all the appeals by a common order dated 24.2.2014, holding that in view of the guidelines issued by the MoEF on 24.12.2013, the guidelines issued by the SEIAA and the environmental clearances granted on the basis of those guidelines actually lapsed. However, considering the economic and social needs and public interest at large, the National Green Tribunal allowed the State Government to continue quarrying operations for a period of six months on the basis of the environmental clearances granted by the SEIAA and on the basis of the of the guidelines framed by them on 27.9.2012.
(m) In the meantime, the Public Works Department was directed by the Tribunal to make fresh applications to the MoEF as per the guidelines dated 24.12.2013 and obtain clearances in accordance with law. The operative portion of the order of the Southern Regional Bench of the Green Tribunal requires reproduction. Hence, it is reproduced as follows : "In view of the economic and social needs and public interest at large, the environmental clearances originally granted by the 2nd respondent/State Level Environment Impact Assessment Authority based on the adhoc guidelines shall continue for a period of six months with a direction to the 4th respondent to make necessary applications for obtaining environmental clearances based on the new guidelines issued by the MoEF which have come into force from 24.12.2013. The Authorities issuing environmental clearances are directed to process the applications following the new guidelines cited above as per law for the grant of environmental clearances. During the period of six months, the adhoc arrangements have to continue and the 4th respondent are directed to strictly follow and ensure the compliance of conditions attached to the environmental clearances. This order will apply only to the sand quarries which are in operation pursuant to the grant of impugned environmental clearances."
51. Neither the Executive Engineer of the Public Works Department nor the SEIAA nor the Lorry Owners' Association, which has come up with an application for impleading, probably as a co-sponsor, have come up with any writ petition against the order of the National Green Tribunal dated 24.2.2014. None of them have also gone to the Supreme Court by way of an appeal under Section 22 of the National Green Tribunal Act, 2010. Therefore, it is clear that the State Government, the SEIAA as well as the Lorry Owners' Association have accepted the verdict of the Southern Regional Bench of the National Green Tribunal.
52. The consequence of the State Government and the SEIAA not challenging the order of the Green Tribunal dated 24.2.2014 is of great significance. The significance is that the State Government as well as the SEIAA are now bound by the order of the Green Tribunal. By the said order, the National Green Tribunal allowed the Executive Engineer of the Public Works Department to carry on sand quarrying operations, as per the environmental clearances granted by the SEIAA, only for a period of six months. This period of six months will expire on 23.8.2014. Before the said date, namely 23.8.2014, the Public Works Department is supposed, by the order of the Green Tribunal, to approach the MoEF for environmental clearances afresh.
53. But, according to the learned Advocate General, the Public Works Department has not so far filed any application before the MoEF for environmental clearances in terms of the guidelines issued by them on 24.12.2013. Therefore, it is admitted by Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the SEIAA that the Public Works Department of the State cannot continue quarrying operations as per the order of the Green Tribunal, beyond 24.8.2014. This date is hardly one month away from now.
54. In other words, out of the total period of six months granted by the National Green Tribunal (perhaps as a moratorium) to the Public Works Department, a period of five months has already expired. The Public Works Department of the State has enjoyed the fruits of the order of the National Green Tribunal for five months out of the period of six months granted by them and they have not taken any steps to get environmental clearance beyond 24.8.2014 in accordance with the new guidelines.
55. Mr.A.L.Somayaji, learned Advocate General contended that though with the issue of the guidelines dated 24.12.2013 by the MoEF of the Government of India, the adhoc guidelines issued by the SEIAA on 27.9.2012 would have lapsed, the environmental clearances granted by the SEIAA in terms of those adhoc guidelines would not lapse. In other words, he tried to contend that the environmental clearances granted on 30.11.2012 by the SEIAA in terms of their adhoc guidelines would survive for a full period of five years (upto 31-10-2017), despite the adhoc guidelines themselves facing a natural death.
56. But, Mr.R.Muthukumaraswamy, learned Senior Counsel appearing for the SEIAA did not agree with the above contention. In response to a pointed query made by us, the learned Senior Counsel conceded that such an argument as advanced by the learned Advocate General was not raised before the National Green Tribunal. The National Green Tribunal did not opine that the environmental clearances granted by the SEIAA on 30.11.2012 would survive. As a matter of fact, the National Green Tribunal was of the view that the environmental clearances granted on 30.11.2012 by the SEIAA in terms of its own adhoc guidelines dated 27.9.2012, perished, the moment the MoEF issued the guidelines dated 24.12.2013. This is why the National Green Tribunal assumed to itself the power to grant a new lease of life to the already dead licenses, for a period of six months from 24.2.2014 upto 23.8.2014, to enable the State to make applications in terms of the MoEF notification dated 24-12- 2013. Since the State Government has accepted the order of the National Green Tribunal, it is not open to the State Government to contend that despite the order of the Green Tribunal, the environmental clearances obtained by them will survive upto the year 2017.
57. Before we proceed to test the correctness of the order of the National Green Tribunal, we may have to take note of one more development that had taken place in the recent past. It appears that certain applications were filed before the Principal Bench of the National Green Tribunal, sitting in Circuit at Shimla, challenging the Notification of the MoEF dated 24.12.2013. The Principal Bench of the National Green Tribunal appears to have passed an order on 28.3.2014, staying the operation of the Office Memorandum dated 24.12.2013. The order of the Principal Bench of the National Green Tribunal reads as follows :
"We have heard learned counsel appearing for the parties. The Ministry of Environment and Forest (MoEF) has not been able to explain as to how the Office Memorandum dated 24th December 2013 is in conformity with the order of the Hon'ble Supreme Court in Deepak Kumar's case, order of the NGT and the Notification dated 9th September 2013 issued by the MoEF itself. We do not think that the MoEF could have issued such memorandum.
The Notification issued by the MoEF is an act of subordinate legislation and was issued in exercise of statutory powers. The Office Memorandum is an administrative order and cannot frustrate the legislative act. In fact, it falls beyond the scope of administrative powers. Consequently, we stay the operation and effect of the order of Office Memorandum dated 24th December 2013. In so far as it relates to the minor minerals like sand etc., list these matters on 30th May 2014 for hearing."
58. Therefore, on the basis of the order of the Principal Bench of the National Green Tribunal staying the operation of the MoEF Notification dated 24.12.2013, it was contended that the environmental clearances cannot be obtained as per the order of the Green Tribunal impugned in these writ petitions.
59. But, we do not think that we can resolve the said problem. If the State Government is of the opinion that they may not be now able to apply for environmental clearances as per the Notification of the MoEF dated 24.12.2013 and in pursuance of the order of the Green Tribunal dated 24.2.2014, they should only take it up with the Principal Bench of the National Green Tribunal, for vacating the order of stay. Therefore, as things stand today, there is no escape from the conclusion that once we dismiss all the writ petitions, the order of the Green Tribunal dated 24.2.2014, which is impugned in all these writ petitions, will continue to bear fruit for the State Government only upto 23.8.2014 and not thereafter.
CONTENTIONS ON MERITS :
CONTENTION 1:
60. It is contended by Mr.T.Mohan, learned counsel appearing for the petitioner in the first batch of writ petitions, that as per the EIA Notification dated 14.9.2006, issued by the MoEF, in exercise of the powers conferred by Sub-Section (1) and Clause (v) of Sub-Section (2) of Section 3 of the Environment (Protection) Act, 1986, environmental clearances for mining minor minerals in an area of more than 50 hectares, classified as category A projects, have to be obtained from the MoEF. If the area in question is of the extent of more than 5 hectares but less than 50 hectares, the project for mining minor minerals in those areas are classified as category B projects, for which, environmental clearances could be obtained from the SEIAA.
61. Though the Notification on EIA dated 14.9.2006 came into force on 14.9.2006, the State of Tamilnadu did not take care to obtain environmental clearances, till this Court issued a mandate on 3.8.2012 in a batch of writ petitions in W.P.Nos.4699 of 2012 etc.cases. Thereafter, the Public Works Department applied for clearances to the SEIAA. Under the pretext of complying with this Court's directions, SEIAA framed draft guidelines on 27.9.2012. Under these draft guidelines, the SEIAA sub-classified category B projects into B1 and B2 projects. Quarries in an area of less than 25 hectares were categorized as B2 projects and quarries in an area of more than 25 hectares were classified as B1 projects. Therefore, in essence, the contention of Mr.T.Mohan, learned counsel for the petitioner is that SEIAA usurped the power of the MoEF.
62. The usurpation powers by the SEIAA are sought to be defended on two grounds, namely
(a) that they were racing against the time limit of 2 months fixed by this Court in its common order dated 3.8.2012 for framing guidelines and examining the proposals of the State Government; and
(b) that the SEIAA of the Andhra Pradesh as well as other States have issued similar adhoc guidelines.
63. But, we do not think that the SEIAA can, under any pretext, actually usurp the powers not conferred upon it. This can be well appreciated only if we have a look at the source of power for the SEIAA. The SEIAA was actually constituted in terms of paragraph 3 of the Notification on EIA dated 14.9.2006 issued by the Central Government in exercise of the power conferred under Section 3(1)(v) and Section 3(2) of the Environment (Protection) Act, 1986 read with Clause (d) of Sub-Rule 3 of Rule 5 of the Environment (Protection) Rules, 1986. Since the SEIAA is a creature of the Notification on EIA, the source of power flows only out of the Notification and not otherwise.
64. It is under the very same Notification on EIA dated 14.9.2006 (paragraph 4) that all projects and activities are broadly classified into A and B categories, based on (i) the spatial extent of potential impacts and
(ii) potential impacts on human health and natural and man made resources. The Schedule to the Notification on EIA dated 14.9.2006 contains a Table that lists out (i) the projects or activities; (ii) the category to which, each of them belongs; and (iii) the conditions that would apply. In so far as the mining of minerals is concerned, it is covered by S.No.1(a) of the Table given in the Schedule to the Notification on EIA dated 14.9.2006.
65. In Column Nos.3 and 4 of the Table under the Schedule to the Notification on EIA, it is indicated as against S.No.1(a) that mining of minerals in a lease area of 50 hectares and above would be categorized as A projects and mining of minerals in a lease area of 5 hectares and above, but below 50 hectares would be categorized as B projects. In Column No.5 of the same Table, it is made clear that general conditions would apply to both A and B category projects. Below the Table, under the Schedule to the Notification, there is a note, which indicates general condition as well as specific condition. The general condition reads as follows : "Any project or activity specified in Category B will be treated as Category A, if located in whole or in part within 10 Kms from the boundary of
(i) protected areas notified under the Wild Life (Protection) Act, 1972; (ii) critically polluted areas as notified by the Central Pollution Control Board from time to time; (iii) notified eco-sensitive areas; (iv) Inter State and International boundaries."
66. Paragraph 4(iii) of the Notification on EIA dated 14.9.2006 makes it clear that all projects or activities included as Category B in the Schedule will require prior environmental clearances from the SEIAA and that the SEIAA should base its decision on the recommendations of a State Level Expert Appraisal Committee (hereinafter referred to as the SEAC). This paragraph makes it clear that in the absence of a duly constituted SEIAA or SEAC, a Category B project shall be treated as a Category A project. But, this portion of the Notification on EIA dated 14.9.2006 [last line of paragraph 4(iii)], was amended by a Notification dated 1.12.2009 to enable the Category B projects to be considered at the Central Level, in the absence of SEIAA or SEAC.
67. Under paragraph 7 of the Notification on EIA dated 14.9.2006, as amended by the Notification dated 1.12.2009, the environmental clearance process for new projects will comprise of a maximum of four stages, in the sequential order as follows :
(i) Screening (only for Category B projects);
(ii) Scoping;
(iii) Public Consultation; and
(iv) Appraisal.
68. Paragraph 5 of the Notification on EIA dated 14.9.2006 makes it clear that the Expert Appraisal Committee at the Central Level and the SEAC at the State Level shall screen, scope and appraise the projects or activities in Category A as well as Category B respectively. It is of interest to note that under paragraph 5(e) of the Notification on EIA, the Expert Appraisal Committees at the Central level and those at the State level (SEACs) are obliged to function on the principle of collective responsibility.
69. In other words, they are supposed to work in tandem. But unfortunately, in the case on hand, they have worked at cross purposes. The Central Government has taken a stand both before the National Green Tribunal and before this Court that the environmental clearances granted by the SEIAA in accordance with the adhoc guidelines, are contrary to law. But, the SEIAA, which is actually a creature of the Central Government, has gone against its own creator and contested the case, both before the National Green Tribunal and before this Court, like a private party would do, virtually advancing the cause of the lorry owners engaged in the transportation of sand.
70. The fact that the SEIAA overreached its mandate and went against the very purpose of its creation, can be appreciated from the very adhoc guidelines framed by the SEIAA on 27.9.2012 on the specious plea that the MoEF had not issued any guidelines. At the risk of repetition, the guidelines issued by the SEIAA on 27.9.2012 are again extracted as follows : "(i) All mining projects wherein the boundary of the proposed mining area is at least 1.0 KM away form the human habitation/other sensitive areas will be considered for sanction of Environmental Clearance subject to satisfaction of other guidelines.
(ii) If the boundary of the proposed mining area is less than 1.0 KM, the SEAC will inspect the site and assess the various environmental impacts and then recommend/ reject with specific conditions/reasons.
(iii) In case, if the proposed mining area is less than 25.0 Hec, it will be considered as B2 category with Environmental Management Plan, and processed further.
(iv) In case, if the proposed mining area is more than 25.0 Hec, it will be considered as B1 category, which will require preparation of the EIA as per revised model TORs issued by MoEF, Government of India and Public Hearing will be undertaken and the same will be examined in detail for taking a decision on the issue of Environmental Clearance, strictly adhering to Government of India guidelines.
It is also informed that the above said guidelines will cease to be in force from the date of Notification/ Memorandum to be issued by the MoEF, GOI on the subject."
71. The above adhoc guidelines issued by the SEIAA would shock the conscience of any person, as it goes far beyond the Notification on EIA dated 14.9.2006 and the directions issued by the Supreme Court in Deepak Kumar. The above adhoc guidelines issued by the SEIAA actually tend to over-reach and also destroy the requirements of the Notification on EIA, as seen from the following :
(i) These guidelines divide mining projects first into two categories, one located at least 1.0 KM away from human habitation and another located within a distance of 1.0 KM from human habitation. Such a classification is not to be found in the Notification on EIA dated 14.9.2006. We do not know where from the SEIAA, which derives its powers from the Notification on EIA, got the power to create one more classification based upon the distance or the location from human habitation. No residual powers have been conferred upon the SEIAA by the Notification on EIA; and
(ii) The adhoc guidelines of the SEIAA classify B category projects into B1 and B2 category projects. Projects on proposed mining area of less than 25 hectares are classified as B2 and projects on a proposed mining area of more than 25 hectares are classified as B1 category projects. After doing so, the adhoc guidelines issued by the SEIAA dated 27.9.2012 have completely dispensed with the requirements of paragraph 7 read with paragraph 5 of the Notification on EIA dated 14.9.2006, in respect of projects on proposed mining area of less than 25 hectares. Therefore, the adhoc guidelines dated 27.9.2012, on the basis of which, the SEIAA granted the environmental clearances in the cases on hand, were completely contrary to the Notification on EIA dated 14.9.2006, as amended by the Notification dated 1.12.2009. They were also completely contrary to the dictum of the Supreme Court in Deepak Kumar.
72. In paragraphs 25 and 26 of its judgment in Deepak Kumar, the Supreme Court observed as follows :
"Quarrying of river sand, it is true, is an important economic activity in the country with river sand forming a crucial raw material for the infrastructural development and for the construction industry but excessive in-stream sand and gravel mining causes the degradation of rivers. In-stream mining lowers the stream bottom of rivers which may lead to bank erosion. Depletion of sand in the stream-bed and along coastal areas causes the deepening of rivers which may result in destruction of aquatic and riparian habitats as well. Extraction of alluvial material as already mentioned from within or near a stream-bed has a direct impact on the stream's physical habitat characteristics.
We are of the considered view that it is highly necessary to have an effective framework of mining plan which will take care of all environmental issues and also evolve a long term rational and sustainable use of natural resource base and also the bio-assessment protocol. Sand mining, it may be noted, may have an adverse effect on biodiversity as loss of habitat caused by sand mining will affect various species, flora and fauna and it may also destabilize the soil structure of river banks and often leaves isolated islands. We find that, taking note of those technical, scientific and environmental matters, MoEF, Government of India, issued various recommendations in March 2010 followed by the Model Rules, 2010 framed by the Ministry of Mines which have to be given effect to, inculcating the spirit of Article 48-A and Article 51-A(g) read with Article 21 of The Constitution."
73. But, the adhoc guidelines issued on 27.9.2012 by the SEIAA completely overlooks the above observations of the Supreme Court, as it tends to grant environmental clearances blind-fold, if the proposed mining area is less than 25 hectares.
74. Therefore, the first contention of Mr.T.Mohan, learned counsel appearing for the petitioner in the first batch of writ petitions, that the environmental clearances issued by SEIAA on the basis of the adhoc guidelines dated 27-9-2012 that were completely contrary to the Notification on EIA, ought to be upheld. The Notification on EIA dated 14.9.2006, as amended by the Notification dated 1.12.2009, empowered the SEIAA to process the proposals for projects in a mining area of 5 hectares and above, but below 50 acres. The EIA Notifications dated 14-9-2006 and 1-12-20009 did not empower the SEIAA to annul the effect of paragraphs 5 and 7 of the Notification dated 14.9.2006 and grant environmental clearances, without screening, scoping, public consultation and appraisal to projects where the proposed mining area is less than 25 hectares. In as much as the adhoc guidelines of the SEIAA permit the grant of clearances to projects on proposed mining area of less than 25 hectares without screening, scoping, public consultation and appraisal, they are completely contrary to the Notification, by which, the SEIAA was created. Even the Union of India, in the counter filed before the National Green Tribunal, clearly admitted that the SEIAAs are not empowered to sub-categorize B projects into B1 and B2 categories. CONTENTION NO.2 :
75. In Deepak Kumar, the Supreme Court issued three directives. They are (i) the Central Government should take steps to bring into force The Minor Minerals Conservation and Development Rules, 2010 at the earliest; (ii) the State Governments should take immediate steps to frame necessary rules under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957, taking into consideration the recommendations of the MoEF in its report of March 2010; and (iii) in the meanwhile, the leases of minor minerals including their renewal for an area of less than 5 hectares be granted by the States/Union Territories only after getting the environmental clearances from the MoEF. Therefore, the second contention of the petitioners is that the SEIAA is neither competent to issue adhoc guidelines nor competent to grant environmental clearances for areas equivalent to or more than 5 hectares.
76. In order to test the correctness of the above contention, it is necessary to have a look at paragraphs 28 and 29 of the decision of the Supreme Court in Deepak Kumar. They read as follows :
"The Central Government also should take steps to bring into force the Minor Minerals Conservation and Development Rules, 2010 at the earliest. The State Governments and UTs also should take immediate steps to frame necessary rules under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 taking into consideration the recommendations of MoEF in its report of March 2010 and model guidelines framed by the Ministry of Mines, Government of India. Communicate the copy of this order to MoEF, Secretary, Ministry of Mines, New Delhi, Ministry of Water Resources, Central Government Water Authority; the Chief Secretaries of the respective States and Union Territories, who would circulate this order to the Departments concerned. We, in the meanwhile, order that leases of minor minerals including their renewal for an area of less than five hectares be granted by the States/Union Territories only after getting environmental clearance from MoEF."
77. In pursuance of the decision of the Supreme Court in Deepak Kumar rendered on 27.2.2012, the MoEF issued certain directions on 18.5.2012. Paragraph 3 of the Office Memorandum dated 18.5.2012 issued by the MoEF reads as follows :
"In order to ensure compliance of the above referred order of the Hon'ble Supreme Court dated 27.2.2012, it has now been decided that all mining projects of minor minerals including their renewal irrespective of the size of the lease would henceforth require prior environment clearance. Mining projects with lease area up to less than 50 hectares including projects of minor mineral with lease area less than 5 hectares would be treated as category 'B' as defined in the EIA Notification, 2006 and will be considered by the respective SEIAAs notified by MoEF and following the procedure prescribed under EIA Notification, 2006."
78. Therefore, the second contention of the petitioners that the SEIAA granted environmental clearances, contrary to the judgment of the Supreme Court in Deepak Kumar, is too obvious.
CONTENTION NO.3 :
79. The third contention of Mr.T.Mohan, learned counsel, is that it was not within the jurisdiction of the National Green Tribunal to compare the adhoc guidelines dated 27.9.2012 issued by the SEIAA with the guidelines issued by the MoEF dated 24.12.2013 and come to a conclusion that those issued by SEIAA were far better.
80. We are in agreement with the above contention of Mr.T.Mohan, learned counsel. In paragraph 41 of its order dated 24.2.2014, the National Green Tribunal presented in a tabular form, a comparative statement of the adhoc guidelines issued by the SEIAA and those issued by the MoEF. Even a bare perusal of the very same tabular statement would show that as per the Notification of the MoEF, mining activity is to be done only manually. But, the environmental clearances granted by the SEIAA, permit mining activity even mechanically. We do not know how such a prescription in the adhoc guidelines could be taken to be more stringent than the guidelines issued by the MoEF, restricting mining only to manual operations.
81. As a matter of fact, the National Green Tribunal ought to have tested the adhoc guidelines dated 27.9.2012 on the touchstone of the parent Notification dated 14.9.2006. If so done, it would have become very clear that the adhoc guidelines actually overreached and even nullified the effect of the original Notification. Another important aspect omitted to be taken note of by the Green Tribunal, while making a comparison, is that in the latest guidelines dated 24.12.2013 issued by the MoEF, the requirement of public hearing is dispensed with, only due to the fact that it permitted manual mining alone for such projects. The National Green Tribunal has not appreciated this most crucial aspect. Therefore, the third contention of the petitioners is also to be upheld.
CONTENTION NO.4 :
82. The fourth contention of the petitioners is that even as per the environmental clearances granted by the SEIAA on 30.11.2012, the project proponent (Public Works Department of the State in this case) should undertake adequate safeguard measures during extraction of river bed material and ensure that due to this activity, the hydro geological regime of the surrounding area is not affected. But, this study has not been undertaken and no report so far submitted to the MoEF. Hence, it is contended by Mr.T.Mohan, learned counsel that in any case, the respondents cannot continue to quarry sand from the river beds, as they are guilty of violating the conditions for the grant of clearance.
83. For an assessment of the above contention, it is essential to have a look at the environmental clearance granted by the SEIAA on 30.11.2012. The environmental clearance is actually for quarrying 2,28,453 cubic meters of sand, at the rate of (i) 44,608 cubic meters in the first year; (ii) 50,000 cubic meters per annum for the years 2013-2016; and (iii) 33,843 cubic meters for the years 2016 and 2017. Paragraph 6 of the environmental clearance dated 30.11.2012 contains general conditions, subject to which, the clearance was granted. Clauses (ix) and (x) of paragraph 6 of the environmental clearance dated 30.11.2012 read as follows:
"The project proponent shall undertake hydro geological study through reputed institution/organization within six months. The proponent shall undertake adequate safeguard measures during extraction of river bed material and ensure that due to this activity the hydro geological regime of the surrounding area shall not be affected.
Regular monitoring of ground water level and quality shall be carried out around the mine lease area by establishing a network of existing wells and installing new piezometers during the mining operation. The periodic monitoring [(at least four times in a year - pre- monsoon (April-May), monsoon (August), post-monsoon (November) and winter (January); once in each season)] shall be carried out in consultation with the State Ground Water Board/Central Ground Water Authority and the data thus collected may be sent regularly to the Ministry of Environment and Forests and its Regional Office Bangalore, the Central Ground Water Commission and the Regional Director, Central Ground Water Board. If at any stage, it is observed that the groundwater table is getting depleted due to the mining activity, necessary corrective measures shall be carried out, which includes immediate stopping of mining."
84. We do not know whether the respondents have complied with the above conditions. But this question has become one of mere academic importance in view of the fact that even according to the SEIAA, the environmental clearances granted by them will not survive beyond 23.8.2014. Therefore, we do not wish to go into that question.
CONTENTION NO.5 :
85. The next contention raised by Mr.T.Mohan, learned counsel appearing for the petitioner, is that the environmental clearance granted by the SEIAA was on the basis of the consent given by the Tamilnadu Pollution Control Board. But, the consent has actually expired.
86. In response to the above contention, the respondents produced two consent orders bearing Nos.669 and 630 dated 1.4.2013. The consent orders are normally valid for one year. We do not know whether the consent orders were extended beyond 1.4.2014. But, we do not wish to attach too much of a significance to this aspect, in view of our finding (i) that the very guidelines of the SEIAA, on the basis of which, they granted the environmental clearances, are ultra vires the Notification on EIA; and (ii) that in any case, the environmental clearances now in favour of the respondents would automatically expire, by virtue of the order of the National Green Tribunal, on 23.8.2014.
CONTENTION NOS.6 and 7 :
87. Mrs.U.Nirmalarani, learned counsel appearing for the petitioner in the second batch of writ petitions, contended (i) that a mining plan in accordance with Annexure I of the draft rules, which received a seal of approval from the Supreme Court in Deepak Kumar, was not prepared by the Competent Authority in the format prescribed and hence, the environmental clearances were illegal; and (ii) that even according to the studies conducted by the Government of Tamilnadu themselves, the ground water level in the areas, in which, mechanized mining is now permitted, has reached a critical stage, threatening to explode like a time bomb at any time.
88. We will now take up these contentions one after another.
88. According to Mrs.U.Nirmalarani, learned counsel appearing for the petitioner in the second batch of writ petitions, the concept of preparing a mining plan was evolved in paragraph 4.5 of the recommendations made by the MoEF, on the basis of the report of the Core Group constituted by an order dated 22.3.2009. This recommendation of the MoEF finds a place in paragraph 19 of the decision of the Supreme Court in Deepak Kumar and it reads as follows :
"Requirement of mine plan for minor minerals :
At present, most of the State Governments have not made it mandatory for preparation of mining plan in respect of minor minerals. In some States like Rajasthan, eco-friendly mining plans are prepared, which are approved by the State Mining Department. The eco-friendly mining plans so prepared, though conceptually welcome, are observed to be deficient and need to be made comprehensive in a manner as is being done for major minerals. Besides, the aspects of reclamation and rehabilitation of mined out areas, progressive mine closure plan, as in vogue for major minerals could be introduced for minor minerals as well.
It is recommended that provision for preparation and approval of mine plan, as in the case of major minerals may appropriately be provided in the rules governing the mining of minor minerals by the respective State Governments. These should specifically include the provision for reclamation and rehabilitation of mined out area, progressive mine closure plan and post mine land use."
90. In paragraph 20 of its judgment in Deepak Kumar, the Supreme Court recorded with approval that as per the report of the MoEF, the operation of mines of minor minerals needs to be subjected to strict regulatory parameters as that of mines of major minerals. The Supreme Court specifically stated in paragraph 20 of its judgment as follows :
"The necessity of the preparation of 'comprehensive mines plan' for contiguous stretches of mineral deposits by the respective State Governments may also be encouraged and the same be suitably incorporated in the Mineral Concession Rules, 1960 by the Ministry of Mines."
91. The Supreme Court also recorded in paragraph 22 of its judgment in Deepak Kumar, the letter dated 1.6.2010 issued by the Minister of Environment and Forests to the Chief Ministers of all States, so that the recommendations made in the report could be incorporated in the Mineral Concession Rules for the mining of minor minerals.
92. In Annexure-I to the Draft Minor Minerals Conservation and Development Rules, 2010, issued by the Ministry of Mines, Indian Bureau of Mines, by the proceedings bearing No.296/7/2000/MRC dated 16.5.2011, a particular format is prescribed for applying for a mining plan. Rule 13 of the Draft Rules stipulates that a mining plan shall not be approved unless it is prepared by a qualified person recognized by the State Government or authorized by the State Government or by a recognized person under Rule 22B of the Mineral Concession Rules, 1960.
93. According to Mrs.U.Nirmalarani, learned counsel appearing for the petitioner, the mining plan submitted by the Public Works Department was (i) neither in the format as specified in Annexure I to the Draft Rules (ii) nor approved by a person as stipulated in Rule 13 of the Draft Rules. In this case, the mining plan was prepared by the Executive Engineer of the Public Works Department. Moreover, as per the circular issued by the Commissioner of Geology and Mining in Rc.No.3868/LC/2012 dated 19.11.2012, the Draft Mining Plan should be prepared by a qualified person recognized by the State Government or Indian Bureau of Mines. In this case, the respondents prepared a mining plan only on 15.2.2013 and got it approved by the District Collector rather than by the Assistant Director of Mines, as seen from their own statement. Therefore, it is contended by the learned counsel that the very basis, on which the environmental clearance was granted by the SEIAA, was contrary to (i) the Draft Rules issued by the MoEF; and (ii) the directions issued by the Supreme Court in Deepak Kumar to follow the prescription contained in the Draft Rules.
94. In response to the above contention, it is claimed by the learned Advocate General that the circular of the Commissioner of Geology and Mining dated 19.11.2012 came only after applications were filed before the SEIAA by the Public Works Department and that therefore, the instructions issued therein cannot affect the applications already made. The learned Advocate General also submitted that on facts, the date of submission of mining plan was not 15.2.2013 as claimed by Mrs.U.Nirmalarani, learned counsel, but was actually 13.8.2012.
95. We have carefully considered the rival contentions.
96. We are prepared to go by the submissions made by the learned Advocate General (a) that the mining plan was submitted on 13.8.2012 and not on 15.2.2013; and (b) that the circular of the Commissioner of Geology and Mining dated 19.11.2012 cannot have retrospective effect, so as to affect the applications already submitted by the Public Works Department. But still, the learned Advocate General has no answer to one fundamental question. As per Rule 13 read with Annexure I of the Draft Rules, approved by the Supreme Court in Deepak Kumar, the mining plan should be in a prescribed format and approved by a qualified person recognized in this behalf by the State Government. We do not know how the State Government authorized the Executive Engineer of the Public Work Department to approve the mining plan.
97. The proposals for the grant of environmental clearances were made by the Executive Engineer, Public Works Department, Water Resources Organization, River Conservancy Division, Trichy. If the mining plan is approved by another Executive Engineer of a different wing of the very same Department, the sanctity of Rule 13 of the Draft Rules is completely lost. When the Public Works Department is the proponent of the project for the grant of environmental clearance, the State Government could not have recognized one of the officers of the very same Department to be a recognized qualified person in terms of Rule 13 of the Draft Rules. Therefore, the applications submitted by the Executive Engineer, Public Works Department for environmental clearances to the SEIAA were obviously not in accordance with the mandate of the Supreme Court in Deepak Kumar.
98. The next contention of Mrs.U.Nirmalarani, learned counsel appearing for the petitioner is that even according to the Government Orders, the ground water resources in the panchayat union blocks, within which areas, the environmental clearances have been granted, are now classified as over exploited. But, this has not been taken into consideration.
99. It is seen from G.O.Ms.No.51 Public Works Department dated 11.2.2004 that based on the development of ground water resources, the panchayat union blocks in Tamilnadu were categorized into dark and grey areas. Blocks with more than 85% ground water development were categorized as dark blocks. Blocks with ground water development between 65% to 85% were categorized as grey blocks. Thereafter, a State Level Working Group was constituted for the assessment of the ground water potential in Tamilnadu. On the basis of the report submitted by them, the Government approved and categorized all panchayat union blocks in Tamilnadu as (i) over exploited;
(ii) critical; (iii) semi critical; and (iv) safe blocks. After such categorization, the Government ordered in paragraph 6 of the said Government Order, that no schemes shall be formulated in over exploited and critical blocks.
100. Thottiyam is one of the villages, which fell within the category of 'safe area' in the year 2004, under G.O.Ms.No.51 Public works Department dated 11.2.2004. But, within a period of ten years, it has now gone from "safe zone" to the over exploited region. This is one of the villages, in respect of which, the environmental clearance is now granted. But, this has not been taken note of either by the Public Works Department, when proposing a project or by the SEIAA while granting clearance. Hence, Mrs.U.Nirmalarani, learned counsel is right in contending that the environmental clearance granted by the SEIAA was not in accordance with law.
101. As a matter of fact, there was no mechanical mining of sand in the State of Tamilnadu, upto the year 2003. It was started only in the year 2003 and contrary to the original order of this Court dated 3.8.2012, large scale mechanized mining appears to be taking place.
102. Though it is submitted by the respondents that mechanized mining is taking place only with two poclains and that no in-stream mining is taking place, the said claim appears to be false. That it is false, could not have been realized by this Court, but for the fact that the lorry owners' association has come with a petition for impleading themselves as parties. In W.P.(MD).No.7146 of 2014, the Tamilnadu Sand Lorry Owners Federation has come up with M.P.(MD).No.3 of 2014 for impleading themselves as a contesting respondent in the writ petition.
103. It is claimed in paragraph 2 of the affidavit in support of the impleading petition that the federation was registered as an association in the year 2010 and that the federation has a membership of about 1000. The members of the federation, as per the affidavit, own 75,000 lorries in the State and all these lorries are specially built for the transportation of sand and that they cannot be used for any other purposes. It is further claimed in the impleading petition that the members of the federation employ about 2,00,000 workers, who are engaged only in the transportation of sand. It is also claimed that the members of the federation and about 2,00,000 workers depend entirely upon the transportation of sand for their livelihood. In paragraph 5 of the affidavit in support of the impleading petition, the federation claims that the capacity of the lorries depends upon the laden weight of each vehicle ranging from 2 units to 3 units and that therefore, sand cannot be loaded manually.
104. The federation claims that unless there are two stand-by poclains in each quarry, it is not possible to load sand and retrieve the vehicles, whenever a vehicle is stuck. In paragraph 5 of the affidavit in support of the impleading petition, it is also claimed by the federation that it is impossible to quarry 7,000 lorry loads of sand per day manually.
105. These statistics make it clear (i) that there has been indiscriminate mechanical mining carried out by the State of Tamilnadu, perhaps under pressure from the lorry owners; and (ii) that the quantities of sand quarried are not correctly projected by the Department. The actual statistics appear to have been buried deep into the very same sand. The pressure exerted by the sand lorry owners federation upon the Government and the SEIAA appears to have increased, in geometric portions, the pressure exerted on environment and ecology. Otherwise, we see no reason as to why the SEIAA should actually take a stand contrary to the stand taken by the Central Government in this case.
CONCLUSION:
106. Therefore, we are of the view that the environmental clearances granted by SEIAA are actually contrary to law. But, today, there is no point in setting aside the same, for the reasons stated below:
(i) The National Green Tribunal has held by its impugned order that based upon the environmental clearances, the State Government can continue to quarry only up to 23.8.2014 (six months from the date of the order of the National Green Tribunal dated 24.02.2014). This period is coming to an end soon;
(ii) The order of the National Green Tribunal dated 24.02.2014, permitting the State Government to make use of these environmental clearances only for a period of six months, came to be challenged in these writ petitions, only after two months. The writ petitions were filed and they came up for hearing for the first time only on 23.4.2014, by which time, a period of two months out of the total period of six months had already expired;
(iii) By an interim order passed on 30.4.2014, we granted an interim stay of the order of the Tribunal. But, our order dated 30.4.2014 was set aside by the Supreme Court, by an order dated 09.5.2014 and the Supreme Court directed us to take up the impugned writ petitions and dispose them of within a period of one month. Therefore, the writ petitions were taken up for hearing after the Court re-opened after summer recess on 04.6.2014. But, the respondents took time to file counter affidavit and the counter affidavit was filed on 16.6.2014. Thereafter, the arguments were heard on 25.6.2014 and 26.6.2014 and judgment reserved by us on 26.6.2014. Thereafter, written submissions were circulated on 03.7.2014. By this time, a period of four months, out of the total period of six months granted by the Tribunal had already expired;
(iv) Therefore, we do not find any useful purpose being served in setting aside the impugned orders, at this distance of time. Therefore, these writ petitions are dismissed. No costs.
(v) The petitions for impleading, filed by the Tamil Nadu Sand Lorry Owners Federation and by one M.Anand are also liable to be dismissed, for the reason that what is challenged before us are the orders of the National Green Tribunal, relating to the validity of the environmental clearances granted in favour of the State Government. These persons are neither necessary nor proper parties. Therefore, M.P.Nos.3 and 3 of 2014 in W.P.Nos.7146 and 7147 of 2014 are dismissed. Other connected M.Ps. are closed.
To
1.The Secretary to Government Ministry of Environment & Forests New Delhi-110011.
2.The Member Secretary, State Level Environment Impact Assessment Authority III Floor, Panagal Maaligai, Chennai-15.
3.The Executive Engineer, Public Works Department/WRO, R.C.Division, Cantonment Trichy.
4.The Executive Engineer, Public Works Department/WRD, Cauvery Basin Division, Thanjavur-613001.
5.The Registrar National Green Tribunal, Southern Zone Arumbakkam, Chennai.