Judicial scrutiny not excluded even if mining lease granted as per law; Govt can't arbitrarily give away hill for exploitation: Madras High Court

Natural resources such as hills and hillocks cannot be arbitrarily given away for mining unless there are public interest considerations involved, ruled the Madras High Court recently (K Santhanam and anr v. The District Collector, Virudhunagar and ors)..Justice GR Swaminathan added that even if mining licences are granted in line with statutory rules, mining activity carried out pursuant to the same would not be immune from judicial scrutiny.."We are a democratic republic. It is not open to the Government of the day to arbitrarily give away hills and hillocks for exploitation. Merely because the process of issuance of mining lease was conducted in consonance with the statutory procedure, that would not confer any immunity against judicial scrutiny. Unless there are supervening public interest considerations, hills and hillocks cannot be given away for mining," stated the order passed on April 26..The Court made the observation while ordering the halt of mining and quarrying activities carried out on 30-meter hillock in a Thiruppani hillock at Rajapalayam, Virudhunagar district. The dome-structured rock at the centre of the controversy was rich in blue metal, which is used as part of construction material and as a source for M-sand. .While dismissing contentions made defending the exploitation of the hillock in question, the Court also added a note of caution that the environmental impact of such exploitation is sometimes realised too late. ."Poramboke land cannot be arbitrarily given away for private exploitation by the Government. The ways of Nature are inscrutable. Only after tsunami struck us, we were told that mangrove forests act as natural barriers against such oceanic onslaughts. Villages in a particular District never faced storms because a hill range acted as protection wall. The recent catastrophic events at Uttarakhand are a direct fall-out of construction of huge dams. We do not know the purpose served by such rock formations ... It is facile to assume that destroying the hillock in question is of no consequence," the Court said. .In all such cases, it must be demonstrated that all other avenues have been exhausted and that in the interest of the general public, it is necessary to carry out limited mining in the hillock, the Court went on to hold. .In this case, it was not shown why the hillock in question should be destroyed to "enrich the exchequer of the day by a few million rupees", the Court observed. It is not as if such minerals are not available or cannot be sourced from elsewhere and no compelling public interest has been shown to exist, the Court added. .The petition before the Court was filed by brothers, K Santhanam and K Sabarimalai, who contended that powerful explosives were being used for quarrying operations at the Thiruppani rock, in violation of permit conditions. .The blasting operations were endangering the lives of farmhands in nearby fields and causing air pollution. It was also submitted that the leaseholder had encroached a water body and blocked a customary pathway earlier used by the villagers. .The petitioners' claims were disputed by the leaseholder as well as the local authority. The Court also noted that there was no statutory prohibition against mining or quarrying such mounds..All the same, the possible environmental cost of continuing the mining activity prompted the High Court to intervene in the matter in the petitioners' favour. ."Of course the Government will be getting royalty and seigniorage fee from out of the quarry operations. But the result will be the destruction of yet another geological formation. It takes probably a million years for such rocks to be formed while it takes a few minutes to destroy them," the Court noted..The Court referred to a series of landmark cases on environmental law to emphasize:It is well settled that the government as well as the citizens have a constitutional obligation to protect environment and ecology (Article 48-A and Article 51-A(g) of the Constitution). The doctrine of inter generational equity adumbrates that environment is not only for the benefit of the present but also the future generations. Resources meant for public use cannot be converted into private ownership. The health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution of India. Mountains, forests, hills, hillocks and rivers are nature's gifts and it is the duty of the Government and the administration to ensure that they are preserved for future generations. This principle of inter-generational equity has been highlighted in a catena of cases. We cannot lose sight of the harm caused to the present generation. It is not as if the benefits of exploitation are equitably distributed among all. Invariably a minuscule minority corners the benefits, while the burden falls on the rest. That is why, the Supreme Court has read the right to environment as embedded in the right to life enshrined in Article 21 of the Constitution of India. No right can be enforced absolutely. The need may often arise to balance the said right with the right to development. But then, the onus lies on the executive to demonstrate that there is a need to subordinate the right to environment to the right to development.."I have culled out the case facts and the applicable legal principles. It is now time for me to walk the talk. Otherwise, I will be one more character mouthing platitudes," Justice Swaminathan commented..The Judge went on to record that he is conscious that "every judicial verdict must be anchored only in law and logic." .A judge must also exhibit awareness of what is going on. His inner antenna should catch the signals. To create such an ambiance, before dictating this Judgment, I listened to TM Krishna's “poramboke padal”.Justice GR Swaminathan."But a judge must also exhibit awareness of what is going on. His inner antenna should catch the signals. To create such an ambiance, before dictating this Judgment, I listened to TM Krishna's “poramboke padal”. I recalled the words of Nithyanand Jeyaraman that while encroachment of water bodies may be regularised by law by issuing pattas, “Nature” will not take note of the same. I think it was Pt. Deen Dayal Upadhyaya who said that we must treat Nature like a milk-yielding cow. We must milk it and not slaughter it. Of course, the capacity of Nature to put up with what we are doing is immense," he added..In this case, the Court remained unconvinced of the respondents' submission that the mining activity will not have any adverse impact. .The Court noted that the hillock had earlier been leased to a women's self-help group and that the present leaseholder was the third entity exploiting the rock. .Pertinently, the Court pointed out that the manner of exploitation carried on by the present leaseholder is not the same as when the rock was being manually quarried by self-help groups. Rather, the present leaseholder used explosives, the Court noted. Two hectares of the eight-hectare area was being quarried in this manner. As such, the Court expressed concern that the hillock itself will become extinct in a few years if such exploitation continues.."In Madurai region, many such hillocks have been totally destroyed within a period of a little over a decade from 2000 to 2010. The ecological degradation is so visible if only we care to see. Right in front of the Madurai Bench of Madras High Court, there is a hill known as Yanaimalai. It houses a temple dedicated to Lord Narasimha. The hill was also an abode for Jain monks. In 2008, it was rumored that the hill was to be handed over to the mining mafia. It provoked an uproar and the proposal was dropped," the Court observed further..The Judge highlighted that while a hill can be allowed to be exploited under certain circumstances, "post-exploitation, the hill must still remain." .Since the present case involved exploitation beyond this threshold, the Court opined that further quarry operations must be stopped. The leaseholder was, therefore, restrained from carrying on further quarrying operations on the said rock. .However, the Court allowed the leaseholder to make a representation to the authorities for a refund of the lease amount paid for the unexpired period of lease. .Advocate V Malaiyendran appeared for the petitioners, Government Advocate M Rajeswari appeared for State authorities and advocate H Arumugam appeared for the leaseholder. .[Read Order]