திரு.வைகுண்டராஜன் அவர்களை சந்தித்து தற்போதைய வழக்குகள் முதலியவை பற்றி பேசும் போது அவர் உயர்நீதிமன்றத்தில் அவர் சார்பில் தாக்கல் செய்த வாதுரை நகலை வழங்கினார். 99 பக்கம் உள்ள மேற்கண்ட வாதுரை நகலில் அவர் தரப்பில் எந்த தவறும் இல்லை என்பதும் எல்லா நிபந்தனைகளும் பூர்த்தி செய்யப் பட்டுள்ளதும் அனைத்து அனுமதிகளும் பெற்று இயங்கும் ஒரே நிறுவனம் விவி மினரல் என்பதும் ஆதாரபூர்வமாக எடுத்து வைக்கப் பட்டுள்ளது. இவற்றில் எதனையாவது மறுத்து உயர்நீதிமன்ற தீர்ப்பில் இருக்கிறதா என நான் தேடி பார்த்தேன். எதுவும் இல்லை. இதனை துரதிஷ்டம் என்பதை தவிர வேறு என்ன சொல்ல. ஆர்வம் உள்ளவர்கள் வாசியுங்களேன்.
*************************
IN THE HIGH COURT OF
JUDICATURE AT MADRAS
W.P. 1592 of 2015 (Suo
Motu PIL)
Registrar
General
…..Petitioner
Vs
Union of India and
others
…..Respondents
Written Submission filed
by the 22nd
Respondent (Managing
Partner
of 8th Respondent)
The 22nd
respondent submits as follows:
(a) Business
Motive and Family Enmity also reason for this PIL
1. This
is not a public interest litigation, but motivated writ petition filed by 24th
to 26th Respondent who is business competitor to the 8th Respondent.
There is business motive between 26th Respondent and 8th Respondent in
capturing Garnet market from 1988 onwards. It is already reported by 8th
Respondent to the 1st Respondent. Brief fact about the writ appeal
and the motive behind litigations, first 8 pages and Anx – 1, 2, 3 and 28 which
will establish the business motive.
2. Due
to some family problems, brothers and partners of VV Mineral have divided
separately.
• One
partner / brother Mr. Sukumar left with Beach Mineral Company (BMC) during 2002
(Respondents 10, 16, 17, 18, 19).
• Other
partner / brother Mr.S.Chandresan left with Industrial Mineral Company (IMC)
during 2011. (Respondent no. 15)
• Other
partner / brother Mr.S.Jegatheesan left with Transworld Garnet India Pvt (TGI)
and Industrial Mineral India Pvt ltd (IMIPL) and Special Economic Zone unit
during 2018. (Respondents 9, 13, 14).
3. In
all the villages, each company owns its own land, often adjacent to other
mining lease areas. Numerous civil and criminal cases have been filed against
the 8th and 22nd Respondents in various forums by other brothers, as well as by
a half-brother who filed an implead petition in the PIL. The said implead
petition was rejected by this Court with the statement, "The present proceedings are really in the
nature of court proceedings. We do not want to reduce it to an inter-family
fight," as per the order dated 20.09.2016. These family-related issues
also are the primary reasons behind the
current litigations
4. The
8th Respondent has filed a lawsuit against the Government for the
expedited processing of mining lease applications on its own land. The case is
currently pending in court, so there is no need to bring up illegal mining, as
the Respondent already holds several mining leases.
5. There
is no demand in India for Garnet and Ilmenite. Only export market alone for
these minerals. Export documents will be available
i.
Concerned parties foreign exchange bank
ii.
Reserve Bank of India
iii.
Customs Commissionerate
iv.
Director General of Foreign Trade (DGFT)
v.
Concerned Port Trust
vi.
Prior to 2007, the said documents are available
with Atomic Mineral Department, Trivandrum office who issue the Monazite Test
Certificate.
6. All
the records will be kept minimum 12 years. In case, any default or violation is
found out the concerned exporter will be block listed, thereafter he cannot do
import export business.
7. There
is intense competition between Indian producers and Chinese producers, followed
by Australia and South Africa. India became the top producer of garnet and
ilmenite due to the private beach mineral industries in Tamil Nadu. As a
result, mining companies in other developed countries lost their market share,
which resulted in falling down of their share prices in the stock Market. To
counter this, some foreign agencies have been engaged in India to file false
complaints against Indian beach mineral producers. Additionally, family
rivalries have also contributed to the litigations against the 8th
Respondent.
8. It
is worth noting that the Government of India has recognized the 8th
Respondent's achievements by awarding them the Special Export Award for over 20
consecutive years. There may be possibility for illegal mining by some of the
people. Whereas, the 8th Respondent is concerned, it has number of
mining leases and number of pending applications for his own land in
Tirunelveli, Kanyakumari and Tuticorin Districts and filed case for early
process and disposal of the application. Therefore, it is irrelevant to involve
the issue of illegal mining in this matter.
9. As
per MMDR Act, the State Govt., can empower its subordinate officers and its
authorities to seize the mineral, vehicles, tools etc., in case they involved
in the illegal mining under section 21(4) of MMDR Act. All the Deputy
Tahsildar, all the Mines Deputy Tahsildar, all the RDO, DROs and Assistant
geologist, Assistant Director, Deputy Director have been empowered to seize the
vehicle, mineral, tool etc., within their respective jurisdiction under section
21(4) MMDR Act by notifying in the official gazette in respect of any illegal
mining.
10.
The District Collector is empowered to compound
the offence under section 23-A of MMDR Act, after collecting the penalty, cost
etc., or to file complaint in the Special court under section 22 of MMDR
Act.
11.
The Tahsildar, all the Mines Deputy Tahsildar,
All the RDO, DROs and Assistant geologist, Assistant Director, Deputy Director
have been authorised to inspect a mine for the compliance of the conditions of
the mining lease deed under Rule 27 of MCR, 1960 within their respective
jurisdiction by notification in the official gazette.
12.
All District Collectors are authorized to
inspect mines within their respective jurisdictions under Section 24(1) of the
MMDR Act. None of the officials or authorities mentioned above have submitted
any adverse remarks or reports against the 8th Respondent.
(B) Statutory compliance by the 8th Respondent
(i)
The 8th Respondent has valid mining
lease from the State Government with the previous approval of the Central
Government as well as Atomic Energy Department.
(ii)
It has valid mining plan duly approved by Atomic
Minerals Directorate for Exploration (AMD).
(iii) It
has valid mining plan duly approved by Indian Bureau of Mines (IBM).
(iv) It
has valid scheme of mining duly approved by IBM
(v)
It has valid Environmental Clearance from
Ministry of Environment and Forest (MoEF&CC) for all its mining leases.
(vi) It
has valid consent under Air Act from TNPCB
(vii) It
has valid consent under Water Act from TNPCB
(viii) 8th
Respondent production is within the limit of Environmental Clearance as well as
approved mining / Scheme of mining (Index
to common typeset papers
S.No. 1 & 2 page no. 1 to 7)
13.
Meanwhile, though this Hon’ble Court
expanded the scope of the PIL to all Coastal Districts, the Amicus Curiae did
not highlight any violations committed by Indian Rare Earths Limited (herein
after called IREL) a company in Kanyakumari District. On the other hand, Amicus
pointed out imaginary violations, without providing any statutory documents
related to the 8th Respondent's mining leases in that district.
IREL has three mining leases
(a) G.O. 1085
expired during 1999.
(b) G.O. 1114
expired during 2001
(c) G.O.3(D)
No. 6 dt. 28.1.00 renewed 20 years from 1990.
So expired on 2010
14.
As per Supreme Court Judgement, the deemed
extension period is only for two years. However, IREL have continued their
mining operations while disregarding the judgment of the Hon’ble Supreme
Court.
This respondent bringing to
the kind attention of this Hon’ble Court
that IREL has committed the following violations:
(i) No
valid mining leases or valid deemed extension period or valid extension order
from competent court.
(ii) Did
not get environmental clearance from MoEF
(iii) Did
not get consent under Air Act from TNPCB (iv) Did not get consent under water Act from
TNPCB (v) Did not get approved mining plan from IBM.
(vi)
Did not get Scheme of mining from IBM.
(vii)
IREL have transported more than the permitted
quantity as per their own royalty settlement order. (Index to common type set serial
no. 49 page no. 269 to 301).
(viii) IREL
did not get Gate Pass II for processed mineral as per State Govt., guidelines.
(VVM
and TGI - Volume – 4 – Convenience Type set details S.No. 12 page no. 287).
(ix)
IREL did not account for the monazite production
correctly every year. (Index to common type set serial no. 46
page no. 264 to 266).
(x)
As per the reverse calculation method adopted by
Amicus Curie, IREL has involved illegal mining of the following quantity (Index
to common type set serial no. 46 page no. 264 to 266).
15.
When they produce 20 M.Tons of Monazite
during the year 2006-07 they produce 63,500 M.Tons of Ilmenite 7060 M.Ton of
Zircon, 2,450 M.Ton of Rutile, 8,559 M.Ton of Garnet. Their total production of
monazite form 1996 to 2012-13 is 22,513 M.Ton. Considering the reverse
calculation method adopted by Amicus, IREL’s total production should be the
following Quantity.
63500 / 20 =
3175 x 22513 = 7,14,78,775 M.Ton of
Ilmenite. Whereas they have accounted only 11,67,943 M.Ton. So the balance
7,03,10,832 M.Ton i.e.., 7.03 Crore
M.Ton of Ilmenite
is illegally mined unaccounted.
As per Amicus
formula the following quantity of minerals were illegally mined by IREL which was not brought to the notice of this Hon’ble
Court by the Amicus.
|
Ilmenite
=
|
7,03,10,832.00
M.Ton
|
|
Zircon
=
|
78,53,294.00 M.Ton
|
|
Rutile
=
|
27,19,899.50 M.Ton
|
|
Garnet
=
|
95,09,687.15 M.Ton
|
|
Sillimanite =
|
1,33,906.00 M.Ton
|
|
Total =
|
9,05,27,618.65
M.Ton
|
16.
So, the cost of mineral alone will come Rs.
4,52,63,80,93,250 i.e.., 45,000 Crores to
be recovered from IREL in addition to 2% of the Royalty Rs.900 Crores. But the
amicus did not use this reverse calculation method against IREL as, Amicus very
well know that, the reverse calculation method is not correct. Amicus using the
reverse calculation method and projecting it as Massive illegal mining, which
is totally impractical and baseless, only to prejudice this
Hon’ble court and highlight the same in Media to tarnish the
image of this Respondent, on this score the reverse calculation should be
rejected.
17.
In Trichy District the 24th and
25th Respondent ML area contain 0.5% of Monazite. The 6th
Respondent filed affidavit before this Hon’ble Court about the content of
monazite in CMP Nos. 17246, 17247 of 2000 in contempt appeal no. 15 and 16 of
2000 filed by 6the Respondent. The mining plan duly prepared by Mr. Victor Raja
Manickam and approved by IBM. Their mining lease area contain Ilmenite,
Monazite etc.
(page no. 2 of mining plan.). As per the order of the Hon’ble High Court,
the statutorily empowered and competent officials inspected the lease area and
found illegal mining of 3.9 million M.Tons. Further, the 24th and 25th
Respondents have obtained only Gate Pass-I alone for 2,000 M.Tons. So 18,500
M.Ton of monazite was illegal removed by 23rd and 24th
Respondent. But Amicus or BEDI did not point out this. This will show that, the
Amicus and Bedi are not acted fairly.
18.
As a Court appointed person to assist the
court, it is the duty of the Learned Amicus Curiae to act impartially. But
unfortunately, He did not act impartially. The following facts will establish
the same.
• Vide
G.O. 173, Bedi committee was directed to inspect Tirunelveli, Kanyakumari,
Madurai and Trichy Districts. But Bedi committee did not inspect Trichy and
Madurai districts.
• The
Government advocate misrepresented before this Court that, all the leases are
terminated prior to 2013, hence the inspection does not arise, the Bedi did not
say this reason in any of his Affidavits or in the writ Appeal no.1168 and
1169/2015 which was tagged with this PIL. It is an afterthought and misleading
the court. Only five leases are terminated for Indian Garnet Sand Company and
Southern Enterprises and another six leases are there in Trichy for 1) Indian
Garnet Sand Company, Maruthi Minerals, Nexus Corporate, 4) SS Minerals 5)
Riverway Minerals Pvt Ltd. Moreover, the 24 and 25th Respondent
challenged the termination which is tagged along with PIL and pending before
this court. Nothing prevented Mr. Bedi or Amicus to look into the Leases in
respect of the same minerals in Trichy and Madurai District. Even after
bringing to their knowledge, Amicus conveniently kept silent about Trichy
especially with regard to Mining Leases
in respect of respondent nos.24th and 25th, the reason
behind this is best known to him only.
• Though
Amicus discussed about the Bedi Committee in his volume of charts, amicus did
not point out that, Bedi has violated the Government G.O. by ignoring Trichy
and Madurai Districts.
• The
G.O. 156 and 173 para 3 last sentence will establish that, “the team members
will be nominated by the Respective Secretary to the Government”. But such
nomination was not done by Revenue Secretary, Environment and Forest Secretary,
Secretary relating to Survey and Settlement and Pollution Control Board.
• The
above violation is not pointed out by the Amicus before the Hon’ble High Court.
• Gagandeep
Singh Bedi, as well as the Learned Amicus Curiae, did not raise any concerns
regarding Trichy District, likely because most of the Trichy leases belong to
Mr. Dhayadevadoss, who has been involved in the following serious violations: ((Brief
facts of the writ petitions and motive behind the litigations Anx -6 and
7 page no. 22 to 92)
(i)
They have involved in large scale illegal mining
to tune of 3.9 million M.Tons (page no.65)
(ii)
They have damaged the road at the time of mining
work
(iii) They
have damaged of bank of Eri and there by damage the agriculture at the time of
mining.
(iv) They
have damaged the Vari and Odai
(v)
They have damaged the bank of river
(vi) They
did not make green belt as per MoEF Condition, thus violated the conditions
(vii) They
have illegally stored 14 Lakhs M.Ton of ROM in their factory without valid
transport permit
(viii) They
have not obtained the transport permit for finished minerals as per Government
guidelines
(ix) They
did not obtain Gate Pass II for processed mineral as per State Govt.,
guidelines.
(x)
They did not get approved mining plan from AMD
though their lease area contains Atomic Minerals as per their own acceptance.
(xi) The
Hon’ble High Court vide its order W.P.No. 761 of 2010 (Anx-48) directed the
State Government to pass order in accordance with law within three months for
violating section 4A(4) of MMDR Act. But no order passed by the State
Government.
(xii) No
Scheme of mining for Periyathalai Mining lease
(xiii) No
Air Act consent from TNPCB for all their mining leases
(xiv) No
Water Act consent from TNPCB for all their mining leases
Unfortunately, when
the writ petition filed by the 24th and 25th Respondents was argued, the
Government advocate did not provide any response to those petitions. He seemed
particularly focused on responding only to the 8th Respondent’s case.
(c) Violation of
Principles of Natural Justice with respect to 8th Respondent
19.
The violation of the principles of natural
justice applies solely to the 8th Respondent. Inspections of both the 24th,
25th Respondents, and the 8th Respondent were conducted based on directions
from the Hon’ble High Court. However, for the 24th and 25th Respondents, the
following procedure was adopted:
(1) prior
register post notice sends for inspection
(2) the
company Chief Manager Thirumalai Raja and Representatives permitted to
accompany the inspection
(3) The
company advocate is permitted to accompany the inspection
(4) All the
inspections and measurements are taken in the presence of the company
representative and advocates.
(5) All the
inspections were video graphed.
But none of the
above procedures were followed with respect to 8th respondent by the
government authorities as well as Bedi Committee. So, the Principles of Natural
Justice is violated only for 8th respondent.
20.
As a court-appointed Amicus, it was his duty to
highlight the violations before this Hon’ble Court, especially since he had
presented G.O. 156 and 173 before the court. Unfortunately, he failed to point
out these illegalities and violations. The Amicus did not mention the
significant quantity of illegally mined minerals or the non-accounting of
monazite by the 24th and 25th Respondents in his report or annexures. This was
despite the Hon’ble High Court expanding the scope of illegal mining to include
all mining leases, and despite the 8th Respondent having submitted the mining
plan along with objections in the type-set paper as early as 2018.
• The
Learned Amicus curiae did not work out the value of the mineral of Forty-five
thousand Crore rupees (Rs. 45,000 Crores) IREL as per his reverse calculation
method.
• He
did not bring to the notice about the Rs.900 Crore royalty at the rate of 2%
for the above said amount for IREL.
• He
did not prepare chart about the violations by IREL.
• He
did not make any comments against IREL even after the PIL against IREL is
transferred from Madurai to Chennai and tagged along with this PIL.
All the
above-mentioned reasons will establish that, Amicus as well as State Government
did not use the same yardstick to measure all companies in a same manner with
respect to violations. There is no provision under MMDR Act or Rule framed
there under, to take such vindicative actions against 8th Respondent
alone.
21.
Mr. Dhayadevadoss engaged Retd. Officials also
to make complaint. One of the Retd. IAS officer Mr.V.Sundaram was engaged make
complaint against 8th Respondent, the full detail video is available
in https://beachmineral.com/category/video/page/2/. The said video
V.Sundaram IAS himself confessed that, he has influenced Ashish Kumar IAS (District Collector, Tuticorin) to take
action against 8th Respondent. The said Sundaram IAS filed implead
petition in the above said batch cases through the present Amicus-curie Mr.V.Suresh and produced the Atomic Energy
Department application copies before the court which were obtained by Mr.
Dhayadevadoss under RTI Act. (Index to common typeset of papers filed by
8th and 22nd Respondent S.No. 52 page no. 379).
This will establish the nexus between both of them. The Videos in PEN DRIVES
are attached along with this written Submissions.
22.
Total 40 allegations were levelled against 8th
Respondent. All the allegations were
thoroughly enquired and rejected by the State Government and reported to Govt.,
of India vide its Principal Secretary letter No. 7810/MMD2/2011-1 dated
23.07.2013. (Anx-28 to Brief Facts about writ
appeal and motive behind the litigations)
23.
The 8th Respondent has enmity with
IREL, the IREL stolen the minerals from 8th Respondent land without
consent of the 8th Respondent. Since no authority is ready to take
action, the 8th Respondent approached this Hon’ble High Court which
directed the police to register a theft case and directed the Revenue
authorities to take action against illegal mining. Accordingly many Criminal
cases were registered against IREL and Revenue authorities-initiated action
against IREL for illegal mining carried out in the lands of 8th
Respondent. There are civil and writ petitions and writ appeals pending between
IREL and 8th Respondent. So IREL colluded with Dhayadevadoss and
others. The person who is accused in the Criminal case was deputed to Monitor
the PIL particularly when the arguments on behalf of 8th Respondent
and Amicus curie.
24.
Based on the Amicus memo, to find out actual
export etc., lot of departments were impleaded as Respondents.
Accordingly, Customs Department was
impleaded as Respondents and they submitted party wise export details before
this court along with their affidavit.
25.
During the pendency of this PIL, the Government
constituted three level committee vide G.O. 179 dated 27.7.2015 to enquire into
the illegal mining complaints. Accordingly, complaints should be forwarded to
Taluk Committee it will enquire. In case no action taken by Taluk Committee,
the District Committee will enquire. Otherwise, District Committee will act as
appellate authority if appeal is filed. The State Committee has the revisional
power including Suo-moto revision.
26.
Surprisingly two complaints against Industrial
Mineral Company by one Mr. S.Kumaresan and Mr. Dhayadevadas alleging that, they
have stored lot of material illegally in Tuticorin District. Similarly, other
mining lessees, like VV Mineral etc., also stored lot of material in various
place of Tuticorin District. The Tuticorin District Committee after enquiry
through Taluk Committee rejected the complaint petitions as false. (Index
to common type set papers filed by 8th and 22nd
Respondent S.No. 31, page no. 122 to
124)
27.
With ulterior motive, the above complaints were
referred by Tirunelveli District Collector to Radhapuram Taluk committee
without jurisdiction. Since they have mentioned about other lessees, the Taluk
Committee enquired the complaint and verified the records, carried out field
inspection and submitted report that, the complaint has no material evidence,
all the lessees have obtained proper permission from the competent authorities,
the lessees total export, local sales all are within the royalty paid quantity
and finally rejected the complaint
petition.
28.
Even though the 8th Respondent specifically
requested personal hearing and to inform the hearing date vide its letter
dated 10.10.2016 (Index to the type set of papers
filed by Government Pleader dated ---Nov, 2019 S.No.63 page no. 269 to 272),
no reply given by the District Collector and adverse order passed without
following the Principles of Natural Justice on 9.11.2016 and subsequently
17.2.2017.
(d) The Amicus Report as well as Bedi Report attacked the 8th
Respondent
in the following counts which all are not correct.
I.
The royalty is fixed very low – But it is fixed by Central Government for
all the lessees on State-wise.
II.
The mining plans are approved without any
verification – But they were approved
only after inspection in accordance with the IBM manual. (Index
to common type set of papers submitted by 8th Respondent serial no.
59 page no. 405 to 426 particular page 418).
III. Central
Government failed to take action for illegal mining – But the Central Government deputed so many times for inspection on the
illegal mining complaint and the State, Central Joint inspection also carried
out so many times available in various typesets.
IV.
Permitted to operate mining operations
without environmental clearance – But
the 8th Respondent is having valid Environmental Clearance from MoEF
for all its operative mines. Only IREL alone operating without environmental
clearance and without approved mining plan and Scheme of mining etc.,
V.
Large scale illegal transportation which
amount illegal mining without Environmental Clearance and without valid mining
plan – But the 8th Respondent
having Environmental clearance, having valid approved mining plan and valid
scheme of mining approved by the competent authority. (Index to common type set of
papers submitted by 8th Respondent serial no. 1 page no. 1 to 6 )
(e) The Amicus
Statement that, he collected documents from Government
office is not fully correct.
29. The
Learned Amicus Curiae in his report dated 12.11.2021 named as, Key Issues in
the Suo-Moto PIL: Summary of Salient features submitted by the Amicus Curie (Government typeset served on 22.02.2022
page no. 416 to 430) he has mentioned in para 419
Methodology for study adopted by the Amicus Curie (AC) –
All conclusions of the Amicus are based on primary data and information
provided by the official agencies. The following records were obtained
(i)
Mining
Plans, Schemes of Mining and Annual Returns filed by the mining companies from
the Indian Bureau of Mines (IBM), Chennai Regional office
(ii)
Mining
plans for atomic minerals as approved by Atomic Minerals Directorate (AMD),
Hyderabad functioning under the Department of Atomic Energy (DAE)
(iii)
Export
data from Commissioner of Customs, Tuticorin; and
(iv)
Mining
Leases and Transport permits from Department of Geology and Mining, TN
especially the 3 District offices of Geology and Mining from Thoothukudi,
Tirunelveli and Kanyakumari
(v)
Royalty
payments from District Collectors
30. But
none of the information provided by the official agencies reveals the violation
by the 8th Respondent. He has falsely mentioned that he has
collected the date from Government office. Vide letter dated 02.01.2024 the
Amicus as well as Govt., pleader was requested to produce the following
documents.
(i)
Inspection Report of Tirunelveli (other than
K.C.Pudur)
(ii)
Notes of Total Station Measurement
(iii) Copy
of FIR No. 15/2022 and current status thereof
(iv) Copy
of Crime FIR No. 14/2022 and current status thereof
(v)
The allegation of copy of Crime FIR No. 2/2022
and 3/2022 registered under 204 IPC in Thermal Nagar Police station, and
current status thereof. (This Respondent wishes to state that to the best of
its knowledge, both the crime numbers were dismissed by the Judicial Magistrate
Court, Tuticorin even before filing this affidavit by the 6th
Respondent). Therefore, the current status assumes relevance.
(vi) Copy
of correspondence between the learned Amicus Curiae and the Assistant Director
of Geology and Mining, Tirunelveli, Kanyakumari, Tuticorin districts, in
relation to Transport Permits, Stocks, and other details and information, and
also in relation to the present reassessment.
(vii) Copy
of correspondence between the learned Amicus Curiae and the Indian Bureau of
Mines officials, Chennai, Bangalore and Nagpur relating to the 8th
Respondent.
(viii) Copy
of correspondence between the learned Amicus Curiae and the Atomic Minerals
Directorate, Hyderabad officials, relating to the 8th Respondent.
(ix) Copy
of correspondence between the learned Amicus Curiae and the Atomic Energy
Regulatory Board, relating to the 8th Respondent.
(x)
Copy of correspondence between the learned
Amicus Curiae and the Atomic Energy Department at Mumbai, relating to the 8th
Respondent.
(xi) Copy
of correspondence between the learned Amicus Curiae and the Ministry of Mines
at New Delhi, relating to the 8th Respondent.
(xii) Copy
of correspondence between the learned Amicus Curiae and the Ministry of
Environment and Forest and Climate Change at New Delhi, relating to the 8th
Respondent.
(xiii) Copy
of correspondence between the learned Amicus Curiae and the Indian Rare Earths
Limited, relating to the matters which are subject of the present PIL.
Documents (i) to (v)
above, have been referred in the Report 1st Cited above. Documents
(vi) to (xiii) have been referred in the Report 2nd Cited above. The
above said documents have not been furnished along with the Reports Cited
above. The said documents are necessary for a complete adjudication of the
issues in the present proceedings. (Brief
fact about the writ appeal and motive behind the litigations Anx 34, page no.
246 to 249).
31. It
is humbly submitted that the said letter was received on 04.01.2024. But till
today the said documents are not produced by Amicus or by the Government
Pleader. The copies of the said documents also not attached along with Amicus
Report or Annexures. Hence his entire report against 8th Respondent
is without any statutory document.
Amicus has mentioned
that he has obtained
(i) Mining Plans, Schemes of Mining and Annual Returns
filed by the mining companies from the
Indian Bureau of Mines (IBM),
Chennai Regional office, and
(ii) Mining plans for Atomic minerals as approved by
Atomic Minerals Directorate (AMD),
Hyderabad functioning under the
Department of Atomic Energy
(DAE),
32.
The Amicus has misrepresented before the
Hon’ble Court that he has obtained all the records from IBM as well as AMD. The
Amicus has requested IBM certain details which were furnished by IBM vide its
letter dated 23.03.2017.
(Index to common typed set of papers filed by
8th and 22nd Respondents serial no. 56, page no. 385 to
394). He has obtained certain
documents from AMD. (Index to common typed set of papers filed by
8th and 22nd Respondents serial no. 58, page no. 403,
404)
But none of the
said documents pointed out any violation by the 8th Respondent.
33.
The 8th Respondent has obtained mining plan
approval by AMD and IBM and Scheme of approval by IBM and Environmental
Clearance from Ministry of Environment and Forest and consent under Air Act and
Water Act from TNPCB. The 8th Respondent mining quantity also less
than the approved mining plan / Scheme of mining quantity and within the
Environmental Clearance quantity (Index to typesets of papers filed by 8th
and 22nd Respondent S.No.
1, 2, 24 to 27, page 1 to 7 and
107 to 115)
34.
All the mining plan / scheme of mining
relevant pages along with a mining plan is submitted in the typeset paper. The
above documents will establish that, the amicus allegation against the 8th
Respondent is without any basis.
35.
The 8th Respondent submitted
transport permit along with Transport permit number and quantity of mineral for
all the 98,80,600 M.Ton transported with valid transport permit with advance
payment of royalty.
36.
With respect to his claim that, he has
obtained (iii) Export data from Commissioner of Customs, Tuticorin, is a false one.
The amicus did not produce the copies either along with the reports or
annexures or based on the request made by the 8th Respondent vide
its letter dated 08.01.2024.
37.
As per Customs report along with their
affidavit, the 8th Respondent total export is 33,95,569 M.Ton as per page no. 517. (Index to typeset of consolidated
pleadings Vol-2 submitted by Amicus Page no. 457 to 518) . The 8th respondent declared
total export is 52,39,306 M.Ton. (Index to common type set of papers submitted
by 8th
Respondent serial no. 7 page no. 23)
So the customs report is not against the 8th Respondent.
38.
As per Customs statement, there is no excess
export than the permit obtained quantity by the 8th Respondent. (Index
to common type set of papers submitted by 8th Respondent serial no.
2 page no. 7). The Customs department did not point out any
irregularities against 8th Respondent.
39.
But the 24th to 25th Respondent export is
more than the permit obtained quantity and IREL exported after lapsing of
mining lease and more than 30 number of parties are exporting without any
mining lease. The Amicus did not make any comments against the said
parties.
40.
Amicus Claim that he has obtained, (iv)
Mining Leases and Transport permits from Department of Geology and Mining, TN
especially the 3 District offices of Geology and Mining from Thoothukudi,
Tirunelveli and
Kanyakumari are also
false. He did not collect any details such as transport permit etc., from the
District Office. Though specifically requested vide letter dated 02.01.2024, he
did not produce the same or they are not part of his report. On the other hand,
the 8th Respondent produced all the transport permit details along
with mineral-wise quantity for the total minerals of 98,80,600 M.Ton of
transported minerals.
41.
With respect to contention that he has
collected, (v) Royalty payments from
District Collectors, it is true. It is attached as Vol-15A Annexures to his
3rd report. But none of the said order has violated any of the
provisions of Act.
Amicus himself did
not point out any specific violation under the specific Act or Rules.
42.
So, the Learned Amicus Curiae contention
that, he has collected the above said five information from the Government
officials is not fully correct and none of the statutory documents pointed out
any specific violation against 8th Respondent.
(f) Amicus
Method of calculation is wrong with respect to 8th
Respondent
43.
In his report, the Learned Amicus Curiae stated
that a large quantity of minerals was illegally transported by VV Mineral. The
Amicus outlined the method of calculation in the explanatory note on pages 3
and 4 as follows:
“Total quantum of mineral transported in M.Ton
and based on the calculation arrived the quantum of mineral unlawfully
transported”.
In the Explanatory Note, he has
mentioned, the quantity determined to be unlawfully transported is
calculated as follows :-
(1) The
quantity transported beyond the quantity permitted to be mined and transported
as per the Approved Mining plan / Scheme of Mining.
(2) Quantity
transported during the period when there was no approved scheme of mining or
where the period had lapsed.
(3) Quantity
of minerals transported for which the lessee had no approval to mine or
transport”.
44.
So, without any statutory empowered official’s
inspection report and without any statutory document, only on imaginary
calculations, he has arrived that, 8th Respondent has carried out
illegal mining.
45.
With respect to Amicus first ground of
calculation, “The quantity transported beyond the
quantity permitted to be mined and
transported as per the Approved Mining plan
/ Scheme of Mining” is wrong for the following grounds.
In terms of legal position
(a) There is
no quantity restriction specified in the MMDR Act or the rules framed under it.
However, the lessee is required to achieve the quantity outlined in the
approved mining plan.
(b) According
to Rule 22(5)(v) of the MCR, 1960, the quantity mentioned in the approved
mining plan is tentative for a period of five years, specifically for the
excavated quantity. It is not required to include details about mining of
replenishable deposit minerals.
(c) As per the
order of the Hon’ble High Court in W.A. 69 of 1998 dated 30.4.1998, the lessee
has the right to the mineral deposited by wind in the lease area, but he should
not prevent the transportation of the same to other Patta land mining leases.
(d) No
violation of rules framed under section 23C, as, no such rules framed for major
minerals by State Government vide State Govt., RTI letter No.
14353/MMD.2/2017-1 dated
06.11.2017.
In terms of facts
(a) All the
quantity transported by the 8th Respondent is below the quantity
permitted by the MoEF and permitted by the mining plan / Scheme of mining. (Index
to common typed set of papers filed by 8th and 22nd
Respondents S.No.
2 & 7 page no. 7 and 23)
(b) The
variation is solely due to the replenishable deposit. Replenishable deposits
can be mined, with the only requirement being that the quantity must be
reflected in the monthly returns, as per the 4th Respondent's letter No.
656(5)/83-Mds dated 29.3.96.
(c) All the
quantities of 98,80,600 M.Ton were transported with valid transport permit
issued by the Competent authority. (Transport permit details with permit
number, date and minerals permitted are produced in separate typeset along with
permit copy.
(d) Royalty
settlement orders also passed (AC-III
15-A (Page No. 43 to 130). Hence
with respect to Amicus ground no.1, is not applicable to 8th Respondent.
46. With respect to Amicus 2nd
ground of calculation “Quantity transported during the period when
there was no approved scheme of mining or where the period had lapsed” also
will not be applicable to 8th Respondent for the following reasons.
In terms of legal position
(a) As per
Rule 22(6) of Mineral Concession Rules, 1960 the mining plan once approved
shall be valid for the entire duration of the lease. Provided that the modified
mining plan shall remain valid for the balance duration of the lease period.
(b) According
to 12(4) of MCDR, 1988 once Scheme submitted it deemed to be approved until
final order is passed.
In terms of facts
(a) All the
mining leases of the 8th Respondent having mining plans / Scheme of
mining and environmental clearances. (Index to common typed set of papers filed
by 8th and 22nd Respondents S.No. 2 page no.
7)
(b) The 8th
Respondent has valid mining plan as well as Scheme of mining.
(c) The Scheme
of mining and relevant production page of scheme of mining duly approved by IBM
submitted as
Typeset – The above
documents will establish that, the 8th Respondent has complied the
statutory requirement, hence 2nd point also will not applicable to 8th
Respondent.
With respect to
Amicus 3rd ground of calculation “the quantity of minerals transported for which the lessee has no
approval to mine or transport” also not applicable to 8th
Respondent.
In terms of Legal Position
(a) All the
seven minerals are associated minerals as per rule 69(x) of MCR, 1960.
(b) Prior to
2005, as per rule 66A of MC Rules all the major mineral mining lessees are free
to carry out the mining operation for atomic minerals available within their
lease area and they dispose it on payment of royalty.
(c) Subsequently
Rule 66A was amended during 2005. Accordingly, permission from Atomic Energy
Department is required to dispose the Atomic Mineral if the lessee has no
mining lease for atomic minerals.
(d) When
minerals are produced from tailings, the only requirement is to remit the
royalty under Rule 64C of MCR, 1960 at the time of sale of mineral which is
complied.
In terms of facts
(a) The 8th
Respondent is permitted to produce other minerals from the existing tailings
accumulated vide competent authority 2nd Respondent letters dated 5.5.2000, 5.6.2000 without fresh mining
lease. It is in line with the act and Rules.
(Index to common typed set of
papers filed by 8th and 22nd Respondents S.No. 21 &
22 page no.100 and 101)
(b) The 1st
Respondent also vide his letter dated 16.8.2000 confirmed the same (Index to common typed set of papers filed
by 8th and 22nd Respondents S.No. 23 page no.104)
(c) Based on
the above said approval letters issued by the competent authorities 2nd
and 1st Respondents, the 6th and 7th
Respondents permitted the 8th Respondent to produce the minerals
from the existing accumulated tailings available with the 8th
Respondent. It is in line with Act and Rules.
(d) Subsequent
to 2005, all the minerals are mined and transported with valid transport
permit, valid mining lease and mining plan, valid scheme of mining, valid
environmental clearance, valid consent under Air Act and Water Act and the
quantity also within the permitted quantity of environmental clearance and
mining plan / scheme. (Index to common typed sets of papers filed
by the 8th and 22nd
Respondents Serial No. 1, 2 page
no. 1 to 7).
47.
So all the three grounds to determine the
quantity of unlawful transportation made by the amicus against 8th
Respondent is without application of mind and not supported by any government
officials records or relevant act or rules or any statutory empowered
authorities reports.
(g) Common Cause Judgement referred by Amicus will not applicable to 8th Respondent.
48.
The Learned Amicus Curiae has mentioned that, as
per
Common Cause Judgement,
the cost should be collected from 8th Respondent. The Hon’ble
Supreme Court in its Judgement in Common Cause Vs Union of India in para 128
clarified as follows:
128. The simple reason for not accepting this interpretation is that
Rule 2(ii a) of the MCR was inserted by a notification dated 26th July, 2012
while we are concerned with an earlier period. That apart, as mentioned above,
the holder of a mining lease is required to adhere to the terms of the mining
scheme, the mining plan and the mining lease as well as the statutes such as
the EPA, the FCA, the Water (Prevention and Control of Pollution) Act, 1974 and
the Air (Prevention and Control of Pollution) Act, 1981. If any mining
operation is conducted in violation of any of these requirements, then that
mining operation is illegal or unlawful. Any extraction of a mineral through an
illegal or unlawful mining operation would become illegally or unlawfully extracted
mineral.
49. Whereas as far as 8th
Respondent is concerned, it obtained
(a) Clearance
from MoEF even though it is exempted by the CRZ Notification as well as by this
Hon’ble High Court made in W.P. 11971 and 15451 of 1995 dated 9.9.1996.
(b) Having
valid mining lease and mining plan duly approved by Government of India, Indian
Bureau of Mines and Atomic Minerals Directorate for Atomic Minerals.
(c) Scheme
of mining approval from the competent authority IBM under rule 12(4) of MCDR,
1988 (Index
to common type set of papers filed by 8th and 22nd
Respondent S.No.
1 page no. 1)
(d) Obtained
consent from State Pollution Control Board under Water (Prevention and Control
of Pollution) Act, 1974.
(e) Obtained
consent under Air (Prevention and Control of pollution) Act, 1981 (Index
to common type set of papers filed by 8th and 22nd
Respondent S.No. 24 to 27 page no. 107 to 114).
(f) The
variation also less than 20% as permitted by the Hon’ble Supreme Court.
(g) In
the mining plan the 8th Respondent have mentioned about the tentative excavation quantity under
Rule 22(5)(v) of
MCR, 1960 which is not
exceeded.
The 8th
Respondent has only collected the replenishable deposit, in accordance with the
order of the Hon’ble Division
Bench of the Madras High
Court in its ruling in W.A. 69 of 1998 dated 30.4.98. Even so, the total
production remains within the limits specified in the approved mining plan,
scheme of mining, and environmental clearance.
50.
So, the said judgement will not be applicable to
8th Respondent. But, the common cause judgement precisely applicable only to
IREL Ltd, Kanyakumari who are operating without valid mining lease, without
environmental clearance, without consent from TNPCB and without approved mining
plan and scheme of mining from IBM. Unfortunately, The Learned Amicus Curiae
did not make any comments about the said violation committed by IREL.
51.
On 21.01.2025 at the time of argument he has
raised the following issues to be decided by this Honorable Court.
a.
Has illegal mining taken place between 2001 to
2016?
b.
If yes, then what is the quantum of the illegal
mining? Is it more than what is stated in the Mining Leases?
c.
What is the action taken by the Government in
respect of the Mining Leases?
d.
What is the quantum of Minerals as of 2016?
e.
The Miners state that they have suffered Royalty
and therefore, it is valid mining. Is it correct to state that?
f.
Is the constitution of Bedi Committee and his
findings, correct?
g.
Has Monazite been extracted and exported?
h.
Is there a Royalty scam?
i.
If there is illegal mining, to whom does the
current stocks belong?
With respect to
• Has
illegal mining taken place between 2001 to 2016?
• If
yes, then what is the quantum of the illegal mining? Is it more than what is
stated in the Mining Leases?
• What
is the action taken by the Government in respect of the Mining Leases?
52.
Number of statutorily empowered officials
reports established that, there is no illegal mining by the 8th
Respondent. In case any authority found illegal mining, the 8th
Respondent is ready to face the consequences. With respect to 8th
Respondent, there is enmity with Bedi committee and Bedi committee also not
statutorily valid. In case, this Hon’ble Court decided that Bedi committee is
statutorily valid, the 8th Respondent is ready to face the action
initiated by the competent authorities in accordance with law.
d What is the quantum of Minerals as of 2016,
Already Sahoo
Committee got the declaration from all the lessees and inspected the physical
stock. Samples were analyzed by AMD. Accordingly, the 8th Respondent
declared quantity is 42,11,032.85 M.Ton. The team found that, 38,77,391,.05
M.Ton available with 8th Respondent. (Sahoo Committee final report
page no. 30, serial no.6) There is no excess stock with respect to 8th
Respondent.
1. Has
Monazite been extracted and exported?
(a) Monazite
also associated mineral under Rule 69(x) of MC Rules, 1960.
(b) As per the
policy on beach mineral, para 4(f), if monazite is produced in the process of
exploitation of beach sand minerals, such monazite shall be disposed of by the
entity concerned at its cost, in accordance with the instructions / directives
of the Atomic Energy Regulatory Board or any person / body authorized by the
competent authority in accordance with the provisions of the Atomic Energy
Act. (Index to common typed set of
papers filed by 8th and 22nd Respondents serial no. 35
page no. 214 to 218, page 218)
(c) The
same condition incorporated in the mining lease granting order also. (Index
to common typed set of papers filed by 8th and 22nd
Respondents serial no. 12 page no.49 to 57, page 50 para 4(ii))
In case the monazite
content in tailing is less than 5% it should be backfilled and more than 5% it
should be stored in separate place. Accordingly, 8th Respondent and
some others were permitted to store separate place. That quantity under the
institutional control of Government of India. No monazite is exported by
blending with other minerals. The customs authority confirms the same. Monazite
is available all over the world at a lesser cost. So IREL itself stop the
production of monazite and the report of illegal export is wrong. The Minister
replied in the parliament. (Index to common typed set of papers filed by
8th and 22nd Respondents serial no. 36 to 39-page no. 219
to 227)
(d) There are
no possibilities for the export of monazite, as there are no countries where
thorium is used for any purpose. All seaports and airports are equipped with
radiation monitoring devices to detect the export of radioactive minerals. The
allegation of export of monazite by VV Mineral is wrong. DAE Deputy Secretary
letter to National Security advisor. (Index to common typed set of papers filed by
8th and 22nd Respondents serial no. 40 to 42-page no. 228
to 238).
(e) On
the other hand, the IREL exported Monazite till 2011, even after the monazite
processing facility stopped its operation in 2004. The arguments placed before
this Hon’ble Court that the Monazite is a Strategic and National importance,
and it should not fall in the wrong hands. These arguments were placed only to
prejudice the court and to get the media’s attention. Therefore, the Monazite
is not used inside India or outside India, only it is all at research
stage.
(f) The
8th Respondent itself requested DAE to setup a monitoring cell in
Chennai, Tuticorin, Vizak port at the expense of exporter which was not agreed
by 2nd Respondent. (Index to common typed set of papers filed by
8th and 22nd Respondents serial no. 44 page no. 257 to
262, page 260(iii))
(g) Most
of the countries prohibited import of monazite due to the radiation hazard and
available within their country.
(h) All the
importers of other minerals get undertaken from Indian Producers that; the
monazite content should not be above the tolerance limit in the mineral
products. Otherwise, their customs will not permit the imported cargo.
Hence, this
allegation is without any basis. Only to prejudice the judiciary this
allegation is made.
h. Is there
a Royalty scam?
(a) With
respect to 8th Respondent, as per the rate fixed by the Central
Government by following the relevant rules.
(b) All the
royalty fixation orders were scrutinized by the accountant general audit team,
in case any wrong they will point out the deficit which should be remitted by
the lessee. The royalty settlement orders attached by Amicus in his 3rd
report AC Vol-15A Annexures will establish that, no violation by the 8th
Respondent.
(c) The Amicus
raise one doubt that, for Tamil Nadu State the royalty rate is fixed very low
while comparing to Orissa. The 8th Respondent has no control over
the same. It is 1st Respondent duty to carryout in accordance with
section 9 of MMDR Act.
I If there is illegal mining, to
whom does the current stocks belong?
(a) The 8th
Respondent produced transport permit copy which contains royalty remittance
challan details also.
(b) It
produced typeset to establish that; the quantity is within the permitted limit
of the mining plan with relevant pages of the scheme.
(c) All
the 98,80,600 M.Ton were transported with proper transport permit.
(d) All the
quantities have suffered royalty and royalty settlement orders also passed.
(e) The
available stock is 8th Respondents royalty suffered stock.
(f) In
case any illegal mining, the empowered authorities have the power to seize the
material and file petition before the competent court for confiscation of the
same to the government which will not be applicable with respect to 8th
Respondent.
53. At
the time of argument, The Learned Amicus Curiae told that, no person has
objected his report, even though reports were submitted very early, which is
completely wrong.
i.
The Learned Amicus Curiae Report dated
20.06.2017 was received by the Respondent Advocate on 22.03.2018 - For which 8th
and 22nd respondents submitted objections on --April 2018 in the
name of “MEMO OF OBJECTIONS TO THE
REPORT DATED 20.6.2017 FILED BY THE LEARNED AMICUS CURIAE - INCLUDING
OBJECTIONS TO THE ANNEXURES TO THE SAID REPORT (COPY OF WHICH WAS RECEIVED BY
THE RESPONDENTS 8 AND 22 ON
22.3.18)”
ii.
Subsequently another objection was submitted
on
20.01.2024 for the Amicus Report in the
name of “MEMO OF OBJECTIONS TO THE
REPORT SUBMITTED BY LEARNED AMICUS CURIAE”.
iii.
Vide letter dated 02.01.2024, the Amicus
curiae as well as Government Pleader were requested to produce the following
documents in addition to some other documents.
iv.
Copy
of correspondence between the learned Amicus Curiae and the Assistant Director
of Geology and Mining, Tirunelveli, Kanyakumari, Tuticorin districts, in
relation to Transport Permits, Stocks, and other details and information, and
also in relation to the present reassessment.
v.
Copy
of correspondence between the learned Amicus Curiae and the Indian Bureau of
Mines officials, Chennai, Bangalore and Nagpur relating to the 8th Respondent.
vi.
Copy
of correspondence between the learned Amicus Curiae and the Atomic Minerals
Directorate, Hyderabad officials, relating to the 8th Respondent.
vii.
Copy
of correspondence between the learned Amicus Curiae and the Atomic Energy
Regulatory Board, relating to the 8th Respondent.
viii. Copy of correspondence between the learned
Amicus Curiae and the Atomic Energy Department at Mumbai, relating to the 8th
Respondent.
ix.
Copy
of correspondence between the learned Amicus Curiae and the Ministry of Mines
at New Delhi, relating to the 8th Respondent.
x.
Copy
of correspondence between the learned Amicus Curiae and the Ministry of
Environment and Forest and Climate Change at New Delhi, relating to the 8th
Respondent.
xi.
Copy
of correspondence between the learned Amicus Curiae and the Indian Rare Earths
Limited, relating to the matters which are subject of the present PIL
54.
The said memo was received by Amicus on
04.01.2024 at 3.52 pm.
(Brief facts about writ appeal and motive
behind the litigations Anx-34, page no. 245 to 248)
Till today, none of
the said documents were produced by either the Learned Amicus Curiae or by the
Government Pleader.
55.
The affidavit and export data submitted before
this Hon’ble Court as Annex-II by the Customs Department for the period 2006 to
07.01.2017 (Index to typed set of
consolidated pleading Vol-II (page no. 403 to 689) submitted by Amicus on
06.07.2018 serial no.28, page no. 452 to 519) will confirm that, there
is no illegal export by the 8th Respondent or its associates and 8th
Respondent has exported total 33,95,569.23 + 23,260 = 34,18,829.23 M.Ton of
Ilmenite, Rutile, Garnet, Zircon (page no. 517, 518).
56.
Meantime, Index to common typed set of paper filed by
8th and 22nd Respondents serial no. 7, page no. 23 shows
52,39,306.86 M.Ton of export from 2001 to 2015-16 (49,78,858.17 M.Ton of Total
heavy minerals for the period 2006 to 2015-16) So there is no wrong with
respect to 8th respondent.
57.
Furthermore, the Bedi Committee conducted a
physical inspection of all the lands and reported that approximately 95 lakh MT
of raw sand had been illegally mined. Meanwhile, the court-appointed Sahoo
Committee, a statutory and officially notified committee, also carried out an
inspection and determined the physical stock. Accordingly, more than 85 lakhs
M.Ton of raw sand are available with particular two respondents. As per Sahoo
Committee report, the 8th Respondent stock is within the declared
quantity and within the statement (Index to common type set of papers submitted
by 8th Respondent serial no. 7 page no. 23 )
(H) Amicus stand of heavy
mineral content will be less than 50% is
wrong.
In terms of facts
(1) After
Tsunami, in Tamil Nadu beach mineral deposits jumped from 14% to 70% as per the
Geologist Mr.Victor Raja Manikkam who was filed the writ petition. (Index
to common typeset of papers S.No. 3, page no. 8 to12 page no. 9)
(2) The heavy
mineral percentage will vary from place to place. More than 70% of heavy
mineral also available in certain areas.
(Index to common typeset of papers S.No. 4, page no. 13).
(3) The heavy
mineral percentage will vary from place to place. Principle Secretary letter to
Government of India (Common type set of papers by 8th
and 22nd Respondent Anx 28page no. 210 to 224 – page no 214) and
(Brief facts about PIL with Annexures filed by 8th Respondent Anx-
22 page no. 80 to 88 page no. 81
para 3)
(4) Even 275%
increase also reported by the 24th Respondent in his mine. (Index
to common typeset of papers S.No.
5, 6, page no. 16 to 22)
In terms of legal position
(1) The mining
lease is only for mineral. Hence there is no need to consider about the
percentage.
(2) As per
Rule 64C of MC Rules, the waste of subgrade mineral should be stacked in
separate place, and it will attract royalty when it is marketed.
(3) The lessee
has to pay royalty only for the mineral under section 9(2) of MMDR Act.
(4) While
issuing 1st stage Gate Pass the tentative quantity to be taken into
account subsequently exact mineral recover to be taken into account for royalty
fixation. (AC
Vol-15A annexures – Consolidated index to the
typed set of papers for the third report
submitted by Amicus Curie, Serial No. 1, Page No. 1 to 3)
(I) The Amicus Reverse
calculation is wrong
58. Amicus 2nd Report dated
09.07.2018 In page no. 17, para 45, he has made one calculation as backward
calculation based on the recovery of monazite which will comes upwards 6 to 7
Crore tons of raw sand which is completely wrong.
In terms of facts
(1)
The reverse calculation is not based on the
physical verification or inspection or seizer by the competent empowered
officials or actual illegally mined.
(2)
He mentioned in para 45 that, on reverse
calculation method the figure will goes up to 6 to 7 Crore Tons of ROM (Raw
sand). He attached index to typeset papers for Amicus second report 1 to 17
total heavy minerals found in the stock of 8th Respondent and
monazite content etc.,
(3)
Amicus own document will establish that, his
backward calculation method in para 45 is completely wrong.
(4)
As per the physical inspection and analysis
attached to his report (Total heavy mineral percentage found in stock VV
Mineral) and the quantity mentioned in para 45, the existing stock of 38,77,391
M. Ton found by Sahoo Committee team contain 15,000 M. Ton of Monazite. (The
relevant chart is available in Amicus report dated 9.7.2018 from typeset page
No. 1 to 16). This will establish that;
his reverse calculation method is not work out.
The physical stock content is in line with the already export stock. In
case his 0.05% is taken into account, 38,77,391 x 0.05% = 1,938.69 M. Ton alone
monazite should be available. Whereas actual stock is 15,000 M. Ton as per the
physical analysis report submitted by Amicus.
(5)
The 8th Respondent total sales are
57,71,688 M. Ton. 15,000 divided by 38,77,391 = 0.0038685 x 57,71,688 =
22327.77 M. Tons of monazite should be available. Whereas the 8th Respondent having
the following quantity of Monazite.
|
Actual stock
38,77,391 M. Ton
|
Content of
Monazite 15,000
M. Ton
|
|
Already export local sales
quantity
57,71,688 M. Ton
|
23,408 M. Ton instead of 22327
M. Ton
|
This will establish that; his reverse
calculations are wrong according to his own analysis report documents.
(6)
The excess quantity is the quantity collected
from the already sold minerals prior to 2000. So, the reverse calculation
method adopted by Amicus is defeated by his own analysis documents produced
from AMD.
(7)
If the reverse calculation method is agreed,
IREL during 2006-07 produced 63,500 M. Ton of Ilmenite, 20 M. Ton of Monazite,
7060 M. Ton of Zircon, 2450 M. Ton of Rutile, 8559 M. Ton of Garnet, 120 M. Ton
of Sillimanite. (Index to common typed set of papers filed by 8th and 22nd
Respondent Serial no. 46 page no. 264). So,
per ton of Monazite, IREL produced the following quantity.
3175 M. Ton of Ilmenite, 353 M. Ton of
Zircon, 122.5 M. Ton of Rutile, 427.5 M. Ton of Garnet, 6 M. Ton of
Sillimanite. IREL total production of monazite is 22,513.05 M. Ton. So, the
reverse calculation quantity and actual quantity is given below.
|
Mineral
|
As per Reverse
calculation (in M. Ton)
|
As per
account
shown by
IREL (in M. Ton)
|
Un accounted quantity
worked out on Reverse
Calculation (in M. Ton)
|
|
Ilmenite
|
7,14,78,775
|
11,67,943
|
7,03,10,832
|
|
Zircon
|
79,47,089
|
93,795
|
78,53,294
|
|
Rutile
|
27,57,842.5
|
37,943
|
27,19,899.5
|
|
Garnet
|
96,24,307.5
|
1,24,750.85
|
94,99,556.65
|
|
Sillimanite
|
1,35,078
|
1,172
|
1,13,906
|
|
|
|
|
9,05,17,488.15
|
So, 9,05,17,488.15 M. Ton of heavy
minerals were illegally mined by IREL if the reverse calculation method is
adopted. In terms of raw sand, it amounts to approximately 18 crore metric
tons. In terms of the mineral's cost, this would translate to around Rs. 45,000
crore, with a royalty of approximately 900 crore rupees. This calculation is
solely intended to demonstrate that the reverse calculation method is
incorrect.
(8)
All the three districts Bedi Committee inspected
and submit report. The Bedi Committee contain more than 120 officials and two
tier inspections prior to Bedi and they have visited all the lands, and they
have calculated total 96 lakhs M. Ton of raw sand is illegally mined in various
places. Whereas Amicus Reverse calculation without measurement is goes to 6 to
7 Crore M. Ton of raw sand only for 8th Respondent. This will
establish that; the reverse calculation method is wrong.
(9)
As per Bedi Committee 100% verification report
more than 96 lakhs M. Ton of illegal mining was found Tirunelveli, Kanyakumari
and Tuticorin Districts. As per Sahoo Committee 100% verification about the
physical stock available with all the lessees, the 8th Respondent
quantity is 38,77,391.005 M. Ton which is within the declared quantity of
42,11,032.85 M. Ton as per Sahoo Committee final report page no. 30. But the
illegally mined 96 Lakhs M. Ton as reported by Bedi committee is available with
other parties in various stages as per Sahoo Committee report page no. 32 which
is given below.
|
S
.
N
o
|
Co mp
any Na me
|
Raw Sand
|
Semi Proc esse d sand
|
Se mi
pro
cess ed min
eral
enri che d
wit h
Gar
net
|
Se mi
pro
cess ed min
eral
enri che d
wit h
Ilme nite
|
Gar
net
|
Ilme nite
|
Zir con
|
Ru til e
|
Silli man ite
|
Total
|
|
1
|
VV Min
eral
|
3036
290.6
85
|
7230
34.6
2
|
0
|
400
.05
|
696 09.
25
|
4425
3.09
8
|
29
94.
7
|
80
9.
3
|
0
|
38773
91.70
3
|
|
2
|
Oth er
part ies
|
9531
669.0
15
|
1886 707.
38
|
377
5.5
6
|
0
|
850 70.
85
|
1460
22.6
02
|
23
24.
67
|
59
1.
69
|
154. 1
|
11671
288.1
78
|
Therefore, the Amicus reverse calculation
is wrong with respect to 8th Respondent.
In terms of legal position
1) According
to MCR, 1960 “illegal mining” means,
Rule 2[(iia) “illegal mining” means any reconnaissance or prospecting
or mining operation undertaken by any person or a company in any area without
holding a reconnaissance permit or a prospecting licence or as the case may be,
a mining lease as required under sub-section (1) of section 4 of the Act. Explanation – For the purpose of this
clause, - (a) Violation of any rules, other than the rules made under section
23C of the Act, within the mining lease area by a holder of a mining lease
shall not include illegal mining. (b) Any area granted under a reconnaissance
permit or a prospecting licence or a mining lease, as the case shall be
considered as an area held with lawful authority by the holder of such permit
of licence or a lease, while determining the extension of illegal mining.]
2) The
Hon’ble Supreme Court in CIVIL APPEAL NOS. 10373 10374 OF 2010 STATE OF GUJARAT
AND OTHERS ETC. .....APPELLANT(S) VERSUS JAYESHBHAI KANJIBHAI KALATHIYA ETC.
decided that, “42) It is in this context the words transportation and storage in
Section 23-C are to be interpreted. Here the two words are used in the context
of illegal mining. It is clear that it is the transportation and storage of
illegal mining and not the mining of minor minerals like sand which is legal
and backed by duly granted license, which can be regulated under this
provision. Therefore, no power flows from this provision to make rule for
regulating transportation of the legally excavated minerals”.
59.
Hence, if the above said rule is violated or the
order of the Hon’ble Supreme Court is violated, then only it amounts illegal
mining. The State Government or the Amicus cannot give a new definition for
illegal mining with respect to major mineral. As for as 8th
Respondent he has complied all the statutory requirements and its production
also within the limit. (Index to common type set of papers filed by
8th Respondent serial no. 1, 2, 7, 24 to 27 page no. 1 to 7, 23 and
107 to 115) So the statutory requirement is complied by the 8th
Respondent.
60.
As per Section 21(4) of MMDR Act, the specially
empowered officers or authorities can search and seize the illegally mined
minerals or equipment, tools or the minerals stored in any place. Whereas the 8th
Respondent stock is completely transported with valid transport permit obtained
from the statutory authority. The transport permit details with transport
permit copy submitted in separate typed set.
61.
All the transport permits are issued by proper
inspection by the competent authorities in the model format of inspection. (Index
to common typed set of papers filed by the 8th and 22nd
Respondent Serial no. 13 page no.
58).
62.
The transport permits are issued only with
proper inspection by the authorities. (Index to common typed set of papers filed
by the 8th and 22nd Respondent Serial no.
32 page no. 125 to 136 – page
127).
(J) With
respect to Amicus allegation about mining plan
In terms of legal position
(a) As per
section 5(2)(b) of MMDR Act, the State Govt., cannot grant the mining lease
without the approved mining plans.
(b) As per Rule 22(5) of MCR, 1960 the mining plan
should contain the tentative scheme of
mining – That means the quantity mentioned
in the mining plan is only tentative. The quantity and annual program are
only tentative and the replenishable quantity can be collected by the lessee if
it is deposited within the lease hold area as already decided by the Hon’ble
Court in
W.A. 69 of 1998 and W.P.No. 5386 of 97. (VVM, TGI
Convenient type set Vol-2, serail
no. 2)
(c) As per
Rule 22(6) of MCR, 1960 the mining plan once approved will valid for the entire
lease period – 8th Respondent has the valid mining plans for all its
mines.
(d) As per
Rule 9(2) of Mineral Conservation and Development Rules, 1988 (MCDR, 1988) the
Controller General or the authorized officer may require the holder of a mining
lease to make such modification in the mining plan or impose such conditions as
he may be consider necessary by an order in writing, if such modification or
imposition of conditions are considered necessary. Accordingly, 8th
Respondent has obtained modified mining plan also for certain lease areas.
(e) Government
of India, Indian Bureau of Mines issued separate manual for preparation and
approval of mining plans which is attached (IBM Manual para 3.1.7 to 3.3 will
establish that the inspection will be carried out by the Regional office before
approval of mining plan - All the areas are virgin area as, all the leases are
granted only after 1988. Therefore, approval of mining plan is pre-condition
for grant of mining lease. (Index
to common typeset of papers S.No. 59, page no. 405 particular page 418)
The above manual and the procedure will
establish that, without verification no mining plan will be approved. Hence,
this allegation has no base.
(f) With
Respect to Atomic Minerals, the mining plan approval power delegated vide
Gazette notification dated 1.2.1990 – Approval obtained by the 8th
Respondent from AMD .
(g) As per
Rule 12(5) of MCDR, 1988, Review of
mining plan : -
Rule 12(5) If approval or refusal of
the scheme of mining is not conveyed to the holder of the mining lease within
the stipulated period the scheme of mining shall be deemed to have been
provisionally approved and such approval shall be subject to final decision
whenever communicated-
Accordingly, all the Scheme of mining
were submitted to IBM in some cases the approval delayed more than two years.
So as per their direction, the quantity produced during the pendency period
also mentioned in the Scheme of mining and approved by the competent
authorities. A Scheme of mining and all other schemes of mining production
chart submitted before this Hon’ble High Court by way of typeset which will
establish that, the Amicus report against 8th Respondent is
completely wrong.
(h)As
per Rule 16(1) of MCDR, 1988 the over burden and waste material obtained during
mining operation shall not be allowed to be mixed with non-saleable or subgrade
minerals / ores – This is the only statutory requirement.
(i) As
per Rule 33 of MCDR, 1988 every holder of a mining lease shall take steps to
store the tailings and fines produced during sizing, sorting and beneficiation
or meteorological operation shall be storing separate dumps and it should be
secured to prevent escape of material. As per sub rule 4, it shall be
backfilled in the mine excavation with a view to resorting the land to its
original use.
63. So
once scheme of mining submitted, if it is delayed on any reason, the lessee can
continue the mining operation on deemed approval status under rule 12(4) of
MCDR and at the final copy, the quantity removed will be mentioned and approved
by the competent authority at the time of approving the scheme. So, there is no
illegality on this aspect.
In terms of facts
(a) The
Amicus Report is not based on the primary data and information provided by the
official agencies. He did not produce a
slender piece of documents to establish that the official agency reports are
against the 8th Respondent.
(b) All
the mining leases of 8th Respondent has valid mining plan / Scheme
of mining. (Index to common typed set of papers filed by 8th and 22nd
Respondent serial no. 1, page no.1)
(c) The
8th Respondent has produced copy of mining plan / scheme of mining
with relevant pages of the approved schemes for all its mines in separate
typeset. Thus, the allegation against 8th Respondent is completely
wrong in terms of factual position.
The Learned Amicus Curiae’s Allegations
1. The
amicus Report along with annexures dated 20.06.2017
2. Third
Report of Amicus (AC Vol-15A dated 11.09.2019) :
3. AC
Vol-15A Miscellaneous Annexures:
4. Amicus
Report dated 09.07.2018 regarding allegation of Monazite and Thorium:
5. Key
issued mentioned by The Learned Amicus Curiae in his report dated 20.6.2017
page no. 9 to 11 (i)Mining of violation of mine plan / leases :
(ii)
Issue of Transport permit :
(iii) Illegalities
in grant of EC violation of conditions :
(iv) Illegal
inclusion of Monazite and other heavy minerals in existing mining leases
without prior approval of Govt., of India.
(v)
Escape under assessment of royalty payments
(vi) Continued
Mining / Transport and export after the imposition of the Ban in August /
September 2013.
(vii) Export
Oriented Units, Special Economic Zones
(viii) Failure
to monitoring functions and objections of responsibilities by Government
agencies tasked with monitoring BSM.
(ix) Political
patronage and collation of state government officials with specific mining
companies and providing official protection form enforcement action despite
evidence of violations and illegalities.
64.
The Learned Amicus Curiae in his index to
additional type set papers II (corrected) dated 6.8.2018 attached certain
documents with the following headings.
1)
Green belt not developed
2)
Sand tailings not refilled.
3)
Depth criterion not followed
4)
Mechanical method used in mining.
5)
A mud road was formed in coastal poramoboke in
CRZ-1, without clearance from MoEF.
6)
A sea water drawl plant was installed without clearance from MoEF
7)
Entire lease area falls under CRZ (Inter Tidal
Zone)
8)
Natural mouth of Nambiar river was narrowed by
15 Mtrs
9)
The lessee has been permitted to mine the
mineral Ilmenite & Rutile in addition to Garnet. But the lessee has not
given details of Ilmenite & Rutile mined so far. (It is a violation under
Rule 66A(i) of the Mineral Concession Rules, 1960).
10) Lease
rent @ 14% of land value per annum to be collected from the lessee for the
entire 461.40 Acres.
11) It
has to be examined how the lease was given for lands under the control of NPCIL
Koodankulam
12) Illicit
mining reported in the adjacent Patta land.
65.
All the above allegations were met out along
with documentary evidence along with annexures in the “Brief facts about the PIL with Annexures” submitted by the counsel
for the 22nd respondent. The above documents will establish that,
all the above allegation levelled against 8th Respondent is
completely wrong.
In addition
1) The Amicus is not acting neutrally. Several
violations were carried out by the 23rd to 26th Respondents, yet the Amicus did
not raise any concerns.
2) Statutory
violations by Bedi Committee and District Committee
were also explained with documentary evidences in the above said
documents. The Hon’ble Court may kindly go through the said documents.
The Amicus
acted as partially:
(i)
The Customs Assistant Commissioner Affidavit and
the details regarding various companies which exported beach sand minerals from
the year 2006 onwards available in Amicus Index to Type Set of consolidated pleadings
Vol-II submitted on
6.7.2018 (Page no. 458 to 518.
If go through the mineral export data available on it, the following companies
were exported.
1)
Balamurugan company, Chennai, Tamilnadu
2)
Beach Mineral company, Chennai, Tamilnadu
3)
Beach Mineral Company India Ltd, Kuttam,
Tamilnadu
4)
Beach Mineral Company Private Limited, Chennai,
Tamilnadu
5)
Beach Mineral Sands Company, Kuttam, Tamilnadu
6)
Beach Sand
Mineralsaranya, Perurkad,
Thiruvananthapuram
7)
DCW Ltd, Sahupuram, Tuticorin, Tamilnadu
8)
MS.Vasantham and Co, Nagercoil, Tamilnadu
9)
Golden Garnet, Tuticorin, Tamilnadu
10) Indian
Garnet Sand Company, Velachery, Chennai,
Tamilnadu (Page
475)
11) Indian
Garnet Supply Company, Tuticorin, Tamilnadu
12) Indian
Mineral Resources, Ranimeiyammai Tower, Chennai, Tamilnadu
13) Indian
Ocean Garnet Sand Company, Tuticorin, Tamilnadu
14) Indian
Rare Earth Limited (IREL), Manavalakurichi, Tamilnadu
15) Industrial
Mineral Company, Tuticorin, Tamilnadu
16) Insyc
consulting trading, Pune
17) Kamman
corporation, Chennai, Tamilnadu
18) Kerala
Refractory Industries, Thiruvananthapuram,
Kerala
19) King
Hydroponics, Tuticorin, Tamil Nadu
20) Micro
Abrasive Company, Chennai, Tamil Nadu
21) Miracle
Sands Company, Tuticorin, Tamil Nadu
22) Omega
weldrode systems, Coimbatore, Tamil Nadu
23) Rishikesh
Exports, Dhane, Maharashtra
24) Santron
systems, Coimbatore, Tamil Nadu
25) Sree
Exports, Chennai, Tamil Nadu
26) Surya
Trading Company, Nagercoil, Tamil Nadu
27) Southern
Enterprises, Chennai, Tamil Nadu (page 501)
28) Suveno
Exports, Mumbai and Madras
29) SVM
Exports, Tuticorin
30) Tamil
Nadu Titanium Industries, Tuticorin
31) TATA
Steel Limited, Mumbai
32) Transworld
Garnet India Pvt Ltd, Tuticorin, Tamilnadu
33) VV
Marine Product, Tisaiyanvilai, Tamilnadu
34) VV
Mineral (VetriVel Mineral) Tisaiyanvilai (Page 511)
35) VV
Mineral, Tisaiyanvilai (Page No. 517)
36) Vetrivel
Minerals, Tisaiyanvilai (Page No. 518)
(ii) It
is humbly submitted; the amicus did not make any comments or remarks about the
other exporters other than 8th Respondent even though this Hon’ble
court expand the scope of the writ petition illegal mining of beach mineral all
the coastal districts.
(iii) The
Amicus did not point out any remarks about Indian Garnet Sand Company and
Southern Enterprises who exported more than 90,000 M.Ton when they obtained
transport permit Gate Pass-I only for
raw sand. (Index to common typeset of papers S.No. 9, page no. 25 to 44, page no.
42(i))
(iv) The
Amicus did not point out any violations against IREL who’s mining leases were
lapsed early in 2012. But obtained transport permit up to 2021. The Chart
submitted by customs will establish that, the 8th Respondent and its
associate companies total export is less than the royalty suffered material
produced and transported with valid transport permit. The Chart attached as (Index
to common typeset of papers S.No. 2, 7-page no. 7 and 23) will establish that, the Amicus allegation
against 8th Respondent is without any basis.
66. Hence,
none of the official agency document is against 8th Respondent. On
imaginary work, amicus has made allegations against 8th Respondent.
(k) Amicus Allegation about
illegal transportation by 8th Respondent
In terms of
Facts :
(i)
The Index to common typeset of papers S.No. 2,
7-page no. 7 and 23 will establish that, all the materials were
transported with valid transport permit.
(ii) The
Transport permit details also attached with transport permit number and the
minerals quantity transported etc., along with a transport permit copy.
(iii) In
the transport permit the details of the royalty payment details vide challan
date and the mineral quantity permitted for transport is mentioned.
(iv) Moreover,
for the dispatch slips Government emblem with hologram with serial numbers also
mentioned. For all the 98,80,600 M.Ton 8th Respondent obtained such
transport permit, and the details were produced before this Hon’ble Court very
early while submitting WMP for getting permission to export the mineral. None
of the Government agency or Amicus refute the above said permit details.
(v) The
amicus did not produce a slender piece of document to establish his allegation
against 8th Respondent has transported without transport permit.
(vi) Amicus
own report will establish that, the 8th Respondent has transported
the material with valid transport permit and royalty accounts were also settled
which all were filed in Amicus AC Vol-15A of Annexures page no. 44
to 117 (Royalty settlement orders passed by the District Collectors)
In terms of
legal position :
(a) There is
no provision either in the MMDR Act or MC Rules to obtain a transport permit
for transportation of minerals. The State Government also did not frame any
rules under section 4(A1) of MMDR for transportation of minerals.
(Index to common typeset of papers S.No. 11,
page no. 46)
(b) Till today
the State Government did not frame any rule for transportation under section
23C of MC Rules with respect to major minerals.
(c) While
granting mining lease, the State Government will impose a condition that, the
transport permit bulk permit if any will be issued only on collection of
royalty and it will be incorporated in the mining lease deed also. (Index
to common typeset of papers S.No. 12, page no. 49 to 57, page no. 54)
(d) The mining
lessee must comply with the conditions mentioned in Rule 27(1) and 27(2) of
MCR, 1960, in addition to the mining lease deed conditions and lease granting
order condition.
(e) As
per Rule 27(1)(i) and (j), the lessee shall keep accurate and faithful accounts
showing the quantity and other particulars of all minerals obtained and
dispatched from the mine and shall allow any officer authorized by Central
Government or the State Government in this behalf to examine at any time any
accounts, plans, records maintained by him.
(f) As per MCR, 1960, Rule 27(1)(j) the lessee
shall keep accurate records of all trenches, pits and drillings made by him in
the course of mining operations carried on by him under the lease and shall
allow any officer authorised by the Central or the State Government to inspect
the same. Such reports shall contain the following particulars, namely:-
(a) the subsoil and strata through which such
trenches, pits or drillings pass.
(b) any mineral encountered.
(c)
such
other particulars as the Central or the State Government may from time to time
require.
(g) As per Rule 27(1)(n) of MCR, 1960 The lessee
shall store properly the unutilized or non-saleable sub-grade ores or minerals
for future beneficiation.
(h) As per
Rule 64C, removal of the tailings or rejects from the lease area for dumping
purpose not for sale or consumption outside the lease area such tailings or
rejects shall not be liable for payment of royalty.
Provided, that in
case so dumped tailings or rejects or used for sale or consumption on any later
date after the date of such dumped, then such tailings or rejects shall be
liable for payment of royalty.
(i) The
lease deed in Form-K executed between the Governor and the lessee give lot of
liberties and privileges and restrictions and conditions etc., Accordingly part
-II of the mining lease deed give lot of liberties to the lessee subject to the
conditions, restrictions mentioned thereafter.
No Rule or covenant contain that, the mineral should be transported with
valid transport permit.
(j) On
the request of the 8th Respondent, the State Government framed
certain guidelines vide Government letter No. 131. Subsequently since MCR, 1960
amended by Govt., of India, the said circular become infructuous which was
reported by the Commissioner of Geology and Mining and Government forwarded the
same to all the District Collectors vide letter No. 155. All are available in Index
to typeset filed by the State Government dated
November 2019 as serial No. 12 to 14 from page no. 21 to 38.
(k) But the 8th
Respondent transported all the minerals on payment of royalty in advance and
getting valid transport permit from the competent authorities and permit
details submitted in separate typeset.
67. The
8th respondent complies the above said statutory requirements and
the royalty settlement orders available with Amicus Report III Vol-15 Annexures
will establish the same. Therefore, this allegation against 8th
Respondent is without any basis.
(l) Allegation of Royalty payments In terms of
facts :
(i)
Once the minerals are mined from the in-situ
reserve or from the replenishable deposit, they are heaped within the mining
lease area. Then the lessee has to give request letter to get transport permit
mentioning the quantity. The statutorily
empowered officers such as Special Revenue Inspector or Special Deputy
Tahsildar, Mines and Assistant Geologist, Mines will inspect and take
measurement and if it is found correct, they will submit the inspection report
in the prescribed format prescribed by the department (Index to common typeset of
papers S.No. 13, page no. 58)
(ii) Based
on the inspection report remarks, the authorities signed the challan for
remittance of royalty. Once royalty is paid and original challan produced
before the competent authorities, they will issue the transport permit
mentioning the payment details and quantity to be transported along with
hologram.
(iii) Every
year the account will be submitted to the authorities, they will check with
their office records and the royalty settlement orders will be passed in
accordance with law. All the royalty
settlement orders available in Amicus own records AC Vol-15A will establish
that, the royalty accounts were settled in accordance with law - So all the
allegations leveled against 8th
Respondent is
without any basis or any statutory valid documents.
(iv) The
8th Respondent through his advocate Mr.Bagavath Krishna served a memo to
produce the following documents in addition to some other documents. (Brief
fact about and motive behind litigations Anx-34, page no. 245 to 247)
(i)
Copy of correspondence between the learned
Amicus Curiae and the Assistant Director of Geology and Mining, Tirunelveli,
Kanyakumari, Tuticorin districts, in relation to Transport Permits, Stocks, and
other details and information, and also in relation to the present
reassessment.
(ii)
Copy of correspondence between the learned
Amicus Curiae and the Indian Bureau of Mines officials, Chennai, Bangalore and
Nagpur relating to the 8th Respondent.
(iii) Copy
of correspondence between the learned Amicus Curiae and the Atomic Minerals
Directorate, Hyderabad officials, relating to the 8th Respondent.
(iv) Copy
of correspondence between the learned Amicus Curiae and the Atomic Energy
Regulatory Board, relating to the 8th Respondent.
(v)
Copy of correspondence between the learned
Amicus Curiae and the Atomic Energy Department at Mumbai, relating to the 8th
Respondent.
(vi) Copy
of correspondence between the learned Amicus Curiae and the Ministry of Mines
at New Delhi, relating to the 8th Respondent.
(vii) Copy
of correspondence between the learned Amicus Curiae and the Ministry of
Environment and Forest and Climate Change at New Delhi, relating to the 8th
Respondent.
(viii) Copy
of correspondence between the learned Amicus Curiae and the Indian Rare Earths
Limited, relating to the matters which are subject of the present PIL.
68. But the amicus or the government
advocate did not produce the above said documents as, none of the said
documents are against 8th Respondent.
In terms of
legal position :
(1) As per
section 9(2) of MMDR Act, the lessee has to remit the
royalty for the minerals consumed or removed from
the mine.
(2) Government,
through letter No. 488 issued clarification guidelines for collection of
royalty stating that, the tentative quantity of minerals mentioned in the
approved mining plan to be collected at first and subsequently at the time of
issuing actual transport permit the royalty should be collected for actual
minerals. (Index to the type set of paper by Govt., pleader dated –--November
2019 serial no. 11 page no. 16 to 20)
(3) Previously
the royalty on sale price after deducting certain approved expenditures. At
that time, the audit team from Commissioner of Geology and mining will audit
all the documents and based on the audit team report, the competent authority
will collect the royalty. Subsequently the royalty collection method is changed
by Government of India by amending MCR, 1960. Accordingly, the royalty should
be collected on Advalrrom basis at the sale price published by IBM for each
month for each state. Then the said procedure is adopted. While passing royalty
orders instead of taking every month quantity on every month sale price, the
state government take the highest sale price of the year for the whole year and
highest rate of royalty for all the minerals. This is to avoid any audit
objection by the Accountant General. AC
Vol-15A Royalty settlement Proceedings will establish the same.
(4) In case,
any difference in payment of royalty etc., the accountant general will make
objection for which notices will be issued by the competent authorities. In
case, the lessee does not accept the same, they can file revision under section
30 of MMDR Act before the Government of India. (AC Vol-15A, serial no. 22 page
no. 117 to 124 in page no. 124).
We can find out the pending revision in the accountant general audit
objections. (Index to typeset of papers Serial no. 27 page 80)
(5) Hence
there is no illegalities either in fixing up the royalty or remitting the
royalty for all the minerals removed and transported with valid transport
permit, royalty settlement orders also passed by the competent authorities.
(m) The
Learned Amicus Curiae claim that his report is based on Government agencies record is incorrect
(1) In fact,
amicus wrote a letter to IBM by sending a model format. The 22nd
Respondent came to know that, when the IBM officials prepared the format,
Amicus orally advised to submit another model format and get the reports to use
it as against the 8th Respondent.
(2) Accordingly,
IBM vide letter No. 654/(2/2015) dated 23.03.2017 send the following documents
to Amicus Curie which were received by him on 24.03.2017 in person.
|
S.No.
|
Name of the document
|
|
1
|
Rejoinder to the Reply
Status report filed by the Amicus
Curie dated 21.11.2016
|
|
2
|
Mining lease wise
details of reserves, production, bulk density, depth of mining, recovery
percentage and proposals given in the mining plan / Scheme of mining /
modified mining plan
|
|
3
|
One model copy of the
Judgement in Writ petitions filed by VV Mineral and Transworld Garnet India
Pvt Ltd challenging the scheme of mining rejection
|
|
4
|
One model copy of the
Judgement in Writ appeal filed by
Indian Bureau of Mines
|
|
5
|
One model copy of the
Affidavit filed by Indian Bureau of
Mines in Writ appeal
|
|
6
|
One model copy of the
Counter Affidavit filed by Indian
Bureau of Mines in Writ petition
|
|
7
|
CD
containing the approved documents of Kudankulam Garnet Sand mines area 1.15
het (Proc.No. 7495) of
M/s.VV Mineral
|
|
8
|
One
copy of the approved scheme of mining (MS 442) of Karichuthu pudur &
Ovari Garnet mines of area 36.42.2
Hect of M/s. V.V.Mineral
|
|
9
|
One copy of approved
modified mining plan & Progressive mine closure plan of Levenjipuram
Garnet Sand mine over an area of 3.78.5 hect of M/s. VV Mineral (MMP
1751) for remining period
|
|
10
|
Model
copy of approval letter, one for V.V.Mineral and one for Transworld Garnet
India Pvt Ltd
|
(3) None of
the documents produced by IBM is not produced before this Hon’ble Court or not
attached along with his fanciful reports. The main reason is all documents will
establish that the 8th Respondent has complied all the statutory
requirements.
(4) Though
Amicus in his letter dated 06.03.2017, and his mail dated 09.03.2017, requested
to furnish details relating to all the lessees, IBM submitted certain details
only with regard to 8th and 9th Respondent alone as, they
are the main competitors to 24th Respondent.
(5) The
learned Amicus did not point out the non-submitting of details requested by him
in the prescribed format or for not submitting to other lessees’ details.
(6) It is
humbly submitted that, the AC-Vol-10A and 10B mining plan approved by IBM in
respect of 8th Respondent was produced by the Amicus before this
Honorable Court. But the Amicus did not mention the source of the receipt of
the above said mining plans, as ongoing though the IBM letter mentioned above,
IBM did not send the said copies to Amicus.
(7) It is
humbly submitted the AMD has furnished certain details to Amicus Curie. (Index
to common typeset of papers S.No. 58, page no. 403)
(8) None of
the copy of the AMD or IBM reports were furnished by Amicus even though
specifically requested by 8th Respondent vide its memo dated
02.01.2024. The reason for non-furnishing of above document is, if the above
said documents are furnished, it will establish that, 8th Respondent
has complied all the statutory requirements and there is no violation with
respect to 8th Respondent.
(n)
Gagandeep Singh Bedi is not acted impartially
In terms of facts
(1) Bedi has
enmity with 8th Respondent which was clearly proved before this
Hon’ble court which will reflected in the Single Judge order.
(2) (a) In
Thiruvambalapuram village another company involved illegal mining for which the
District Collector vide letter No.66736/02 dated 16.9.2003 issued show cause
notice and the concerned company approached the Hon’ble High Court by way of
writ petition.
(b) In
K.Pudur village one more another company involved illegal mining. For which the
district Collector imposed penalty and based on the direction of the Hon’ble
High Court, now the matter is pending before the Mines Tribunal.
(c) In
K.Ovari village, one Trustee of a Temple involved illegal mining. For which the
district collector imposed penalty vide Proceeding No. M2/33502/2012 dated
14.12.2012 and HRNC removed the trustee from the trusteeship - But Bedi accused 8th Respondent
since his lease is nearby, there is possibilities to involve the illegal mining
by 8th Respondent.
(3) Bedi
failed to verify the records, particularly Revenue records. If he verified, he
may find out that, in all the villages all the mining companies having their
own land and most of the lands were illegal mining carried out belongs to other
companies, not belongs to 8th Respondent.
(4) No
authority empowered under MMDR Act and Rules, has submit report against 8th
Respondent about illegal mining or any other violation. The empowered officers
of State and Central Government inspected so many times and submitted reports
that, there is no illegal mining on 8th Respondent. All the reports
available in the Joint Inspection Report of Mining lease hold areas and their
adjoining areas in Tirunelveli, Tuticorin and Kanyakumari Districts (MoEF
Director Report available in the Madras High Court).
(5) On the
other hand, the inspection done on 24th and 25th
Respondents all are with empowered officers and authorized officers having
jurisdiction. Moreover, their report copies also attached along with Collector
Report to Government. The Bedi Committee report did not contain copy of reports
submitted by the inspection team or by any statutorily empowered officials.
Under the RTI Act, except for one officer, all other members replied that while
they accompanied the inspection, they did not take any measurements nor submit
any report.
In terms of legal
position
(1) The State
and Central Government power delegation details available in the DGM office
website obtained under RTI Act (Index to common typeset of papers S.No. 15,
page no. 65 to 83)
(2) Central
Government under section 26(1) vide notification dated 29.3.1965 authorized the
Chief Controller of Mines, Regional Controller of Mines, Regional Mining
Geologist and other officials to exercise the duties mentioned under section
24(1) of MMDR Act which was renotified by Govt., of Tamil Nadu vide G.O.MS. No.
2072 Industries Labour and Cooperative Department dated 17.4.1965 – (S.No.
17, page no. 80)
(3) The
Central Government delegated its powers under various sections and Rules to IBM
officials by notification in the Gazette of India. (Index to common typeset of
papers S.No.16, page no. 84)
(4) The State
Govt., also authorized to all the District Collectors to inspect the mine under
section 24(1) of MMDR Act vide G.O. 63 dated 11.5.2005 and the Gazette
notification. (Index to common typeset of papers S.No.
17, page no. 88)
(5) Appointment
of Kasirajan Committee and Sahoo Committee also by way of Gazette notification
authorizing under section 24(1) of MMDR Act.
(Index to common typeset of papers S.No. 18 & 19, page no. 90 to
93)
(6) The above
said statutory requirements are not complied with respect to G.O. 156 and G.O.
173 and G.O. 179. But they have complied before and after.
(7) Para 3.1
of the said G.O. 156 and 173, will show that, “the
team members will be nominated by the
respective secretaries”. Whereas,
except Industries Department, none of the team members either from survey,
Revenue and pollution control Board, Environmental and Forest department
members are not nominated by the respective secretaries or they are not
nominated in G.O. 156 and G.O.
173. Hence the committee
is not a legal committee.
“13……..The object of publication in the Gazette is not merely to give
information to public. Official Gazette, as the very name indicates, is an
official document. It is published under the authority of the government.
Publication of an order or rule in the Gazette is the official confirmation of
making of such an order or rule” -
(I.T.C. Bhadrachalam Paperboards and Ors.
Vs.Mandal Revenue Officer, A.P. and Ors. (1996VIIAD(SC )398,
JT1996(8)SC 67, 1996(6)SC ALE551, (1996)6SC C 634,
[1996]Supp5SC R643, [1998]110STC 590(SC ))
“The object of publication in the Gazette is not merely to give
information to public. Official Gazette, as the very name indicates, is an
official document. It is published under the authority of the government.
Publication of an order or rule in the Gazette is the official confirmation of
making of such an order or rule. The version as printed in the Gazette is
final. The same order or rule may also be published in the newspapers or may be
broadcast by radio or television. If a question arises when was a particular
order or rule was made, it is the date of Gazette publication that is relevant
and not the date of publication in a newspaper or in the media” - Pankaj Jain
Agencies v.Union of India MANU/SC/0073/1995 : 1994ECR28(SC) .
“When the Act and Rule specify notification is mandatory, without
notification an executive order has no legal legs. When the Act and Rule
specify notification in the official gazette, the executive order cannot go
against the Rules. Hence it is invalid. In case, conflict between State
Legislation and Central Legislation only the Central Legislation alone valid”
- (2022 SCC Online SC 1382 In the
Supreme Court of India (BEFORE D.Y. CHANDRACHUD AND HIMA KOHLI, JJ.) Civil
Appeal No. 6706 of 2022 State of West Bengal … Appellant; Versus Anindya Sundar
Das and Others … Respondents.
69.
G.O. 156, 173 and 179 appointments of Bedi
Committee and District Committee is to find out the illegal mining under
section 24(1) of the MMDR Act and to enquire about the illegal mining complaint
petitions.
70.
As per Section 23C of MMDR Act, the State
Government may by notification in the official gazette make rules for
preventing illegal mining, transportation and storage of minerals and for the
purposes connected therewith.
71.
Bedi committee was appointed to find out the
illegal mining by inspection, checking and search of minerals which comes under
23C(2)(d) of MMDR Act.
72.
District Committee is appointed for other
matters i.e.., enquiry of complaint petitions which comes under 23C(2)(g) of
MMDR Act.
73.
As per section 23(1) of MMDR Act, the State
Government can make it only by notification. In this Bedi appointment as well
as District Committee appointment the requirement of notification in the
official gazette is not complied. Whereas it is complied with respect to Sahoo
Committee vide G.O. 42.
74.
In case any illegal mining / transportation, the
authority empowered under section 21(4) can seized the vehicles, minerals,
tools etc.,
(i)
Such empowerment under section 21(4) of MMDR
Act, have been given to the State Government officials for minor minerals by
notifying in the official gazette by following section 26(2) of MMDR Act. The
power delegated list S.No. 4 vide G.O.Ms.No. 4 Industries (MMC.1) department
dated 2.1.1998.
(ii)
Vide G.O.(Ms) No. 560 Industries (MMC.1)
Department dated 28.6.1990 delegated power to the Deputy and Assistant
Directors posted in the Districts, Assistant Geologists, Special Tahsildar
(Mines), Special Deputy Tahsildar (Mines) for
performing functions as specified
in subsection (4) of 21 of MMDR
Act,1957 within their respective
Jurisdiction. (Serail No.6)
(iii) Vide
Government of India notification dated 29.3.1965, the IBM officials have been
authorized to perform the functions under section 24(1) of MMDR Act (Serial No.
12 & 17).
(iv) They
have been delegated power vide Notification dated 19.9.1962 to file complaints
under section 22 (Serial No.15 & 19).
(v)
Vide G.O.Ms.No. 85 dated 21.1.1974, the
Tahsildar,
Special Tahsildar (Mines), Special Deputy
Tahsildar (Mines) were authorized for inspection of areas authorized by the
State Government. (Serial No. 21)
(vi) Officers
not below the rank of Deputy Tahsildar appointed as Executive Magistrate to
exercise powers under section 21(4) within their respective Jurisdiction vide
G.O.Ms.No. 1664 dated 8.12.1981 (Serial No. 23)
(vii) With
respect to major mineral, all the District
Collectors, and all the DROs all the RDOs
and Tahsildars, Deputy Director / Assistant Director AG are having power under
section 21(4) of MMDR Act, within their
jurisdiction and the Director of Geology and Mining, Additional Director
Geology, Joint Director, DD and AD and
AG functioning in the Head office shall have the jurisdiction for the whole of
Tamilnadu.
75. Moreover,
the authorization under 24(1) can be made only in general not special. The
special authorization power has been omitted by Act No. 38 of 1999. Whereas in
this case, the authorization is special only for private beach mineral mining
lessees.
76. Every
lessee has to submit annual return to the Controller General and other
authorities in Form-H8. It contains lot of information. The requirement is name
of the mineral / ore excavated and production despatch of stock.
There is no need to mentioned about the waste material.
77. As
per MCDR, 1988, certain show cause notices were issued. For certain cases,
refusal of mining plans was ordered and certain cases, direction to submit
modified mining plans were ordered. Some cases, suspension ordered. 8th
Respondent filed writ petition and set-aside the order and IBM filed writ
appeal and the 1st bench issue certain directions to both parties.
Accordingly, both parties complied and all the schemes were approved and the
matter settled as per the order of this Hon’ble Court in W.A.No.1057 to 1088 of
2015 dated 11.08.2015, no appeal filed against the said order. So that is
final.
(n) Amicus
Allegation against Royalty fixation
In terms of facts
(1) Royalty
fixation orders available in AC Vol-15A
Annexures, it can be found out that, the 8th Respondent has
submitted full and correct records and for some years, the DGM office audit
party audited the accounts and submit report and based on the above said
reports, royalty settlement order is reconciled.
(2) For some
time, the accountant general has point out certain lapses which is met out by
the lessee either on payment or by filing revision before competent authority,
Government of India.
(3) None of
the above said proceedings have been cancelled or modified either by the
account general office audit team, or from the order of the Government of India
under section 30 either Suo-moto or on revision filed by a party or from the
order of the competent court.
(4) Amicus
allegation is that, the royalty rate is fixed very low for Tamil Nadu which is
not the fault of the 8th Respondent. The 8th Respondent
comply the statutory requirements.
In terms of legal position
(1) As per
section 9(2) of MMDR Act, the royalty to be paid for the mineral consumed or
removed from the mine – which is complied.
(2) As per
Rule 27(1)(i) and (j) of MCR, 1960 correct and accurate accounts to be
maintained by the lessees - which is complied.
(3) As per
Government letter no. 488 , the royalty should be paid on the tentative
percentage of the mineral and subsequently it should be reconciled – which is
complied.
(4) The Amicus
himself in AC Vol-15A Annexures produced all the royalty settlement orders.
(5) As per
Rule 56 of MC Rules, 1960 any mistake in any order passed by the government or
any authority or officer under these rules and any error arising there in from
accidental slip or omission may within two years from the date of the order be
corrected by the government authority or officer. No such order passed within the said time
limit of two years by any of the authorities.
(6) The
District Committee constituted vide G.O. 179 also not notified by complying the
statutory requirement of section 26(2) of MMDR Act and not placed in the
legislative assembly under section 28(3) of MMDR Act.
(7) The said
G.O. was issued during 2015 to enquire the illegal mining complaint. But it
created a bogus minute without following the procedure for the period between
2008-09 to 2011-12. The said committee
is not constituted with retrospective power to enquire the complaint relating
to the old period prior to 2015 when the matter was sub-judice in the PIL 1592
of 2015.
(8) No power
delegated to the District Committee to review the royalty settlement order
passed by the competent authority.
(9) So with
respect to royalty or with respect to mining or with respect to getting
clearances and mining plan scheme approvals or Clearances from MOEF&CC, all
the requirements have been complied with by the 8th Respondent and
all his 98,80,600 M.Ton have been transported with valid transport permit from
the mine. Meantime, 24th , 25th Respondent and IREL did
not follow the guidelines issued by the Government. There are no remarks by
Bedi or Amicus about the non-following of the said guidelines.
78. None of the act and rules for payment of
royalty or mining operation have been violated by the 8th Respondent
and the Amicus also did not point out any violation by the 8th
Respondent.
(P) With respect to Third
Report of Amicus (AC Vol-15A dated 11.09.2019)
(1)
He has made a work sheet mentioning 8th
Respondent has made the royalty payment less amount when the export value is
higher. Amicus has attached lot of statement, enclosures in AC Vol- 15B he has
attached lot of charts and historical timeline law and procedures from Page No.
1 to 5. From Page No. 6 to 62 he attached lot of comparative charts with other
companies and other state.
These all are only to
prejudice the Judiciary.
(2)
Amicus did not mention that the 8th
Respondent has produced incorrect account to the authorities at the time of
getting royalty settlement order.
(3)
He did not point out that, the correct and
faithful accounts is not maintained by the 8th Respondent as
required under Rule 27(1)(i) of MCR, 1960.
(4)
He did not mention on the above said chart or
any other chart or report that, the royalty settlement orders are passed by
violating specific rules or section of the Rules and Act by the authorities.
(5)
The Royalty settlement orders attached by the
Amicus in AC Vol-15A (Page No. 43 to 130) will establish that, the 8th
Respondent has complied the statutory requirements of maintaining correct and
accurate account under rule 27(1)(i) of MCR, 1960 and he produced the correct
account before the authority which was also confirmed by the Accountant General
audit team. So, on any part, the 8th respondent has not committed
any violation.
(6)
According to Rule, 64(d), the royalty should be
paid on ad-volorem basis state-wise sale price published by Indian Bureau of
Mines – Which is complied by the 8th Respondent.
(7)
AC
Vol-15A Annexures Page No. 1, 2, 3: In page 3, Govt., letter No. 488 dt.
12.8.1998 it is specifically mentioned, the royalty is only for mineral and on
approximate basis based on the approved mining plan advance royalty should be
collected and after separation, the royalty amount will be remitted. This will
establish that, royalty only for mineral.
(8)
AC
Vol-15A Annexures Page No. 4 to 8: In page 5, third para will establish that,
the royalty is only for separated mineral.
The said letter and guidelines are issued based on the request of the
8th Respondent. Subsequently due to the Amendment to the MCR, 1960 it become
infectious.
(9)
The grade and quality also vary from place to
place. That is why, Government of India
has fixed different royalty rates in different states under Rule 64(d) of MCR,
1960. So, this cannot be compared with
other state price or other party.
(10) AC Vol-15A
Miscellaneous Annexures: The
Learned Amicus Curiae attached Minutes of District Committee dated
14.02.2017.
(a)
Only to prejudice the Judiciary he attached the
unlawful minutes. He did not attach the notification of the committee in the
official Gazette delegating powers to the committee under section 26(2) of the
Act.
(b)
The State Government itself confirm
noncompliance of the statutory requirements vide Industries Letter No.
15053/MMD.1/2017-1 dated
16.02.2018.
(c)
Without appeal the District Committee has no
power as per the G.O. and as confirmed by Government vide letter No.
15161/MMD.1/2017-1 dated 16.02.2018. The said letter available in VVMTGI Vol-II
Convenience type set Serial no. 24.
(d)
No appeal filed against the decision of the
Taluk committee vide Assistant Director, Tirunelveli letter No. M1/49/2018
dated 29.10.2018.
(e)
On going through the above said reply,
allegation against 8th respondent is he has stored illegal mineral
in various places in Tuticorin district. But the Tirunelveli District Committee
illegally prepared the minutes only based on the advice of the Amicus through
one Thangamuniasamy.
(f)
The Tuticorin District Committee decided that
there is no illegality.
(g)
There is no provision to get transport permit
either in MMDR Act or Rule.
(h)
The quantity
mentioned in the mining plan is tentative
for five years of excavation. So, there is no restriction for mining
replenishable deposit. The replenishable deposit quantity and grade may
increase or decrease as per District Collector letter dated 29.9.2012
(i)
The Replenishable Quantity may vary as per 6th
Respondent letter dated 23.7.2017 (page 5 & 6) and Joint Inspection report IBM, AMD, State.
(j)
Export value cannot be taken for settlement of
royalties as the royalties to be paid for the
minerals removed or consumed from the mines.
Accordingly, as per rule 64B, royalty settlement orders were passed, and all
the orders were scrutinized by the Accountant General office as well as DGM
office Audit team. In case they point out any short collection, accordingly
notices will be issued, and the amount will be remitted.
79.
Therefore, the entire report of Amicus 3rd
report is without any statutory violation. But to prejudice the judiciary make
a fancy work. He did not point out a slender piece of violation either in the
royalty settlement order or in the transport permit obtained etc., against 8th
Respondent. So, the 3rd Report of the Learned Amicus Curiae
regarding Royalty and his enclosures 15A and 15B has no legal value.
Amicus Report dated 09.07.2018 regarding allegation of Monazite and Thorium:
80.
He has mentioned that most of the ROM and Semi
processed monazite content greater than 0.25% as permitted and there are
possibilities to export the same to other countries. Accordingly, he attached
the analysis report of each sample obtained from AMD and his work sheet etc.,
(a)
The Percentage of occurrence of monazite in
beach sand minerals is a natural phenomenon (DAE letter No.
4/5(26)/2017-PSU/9524 dated 17.7.2017) (Index to common type set of papers filed by
8th and 22nd Respondent S.No. 34 page no. 213)
(b)
As per policy on beach mineral notified by
Govt., of India during 1998 para 4(f), “if monazite is produced it should be
disposed off in accordance with the directions issued by the AERB”. (Index to common type set of papers filed by
8th and 22nd
Respondent S.No. 35 page no. 215
to 218)
(c)
Vide AERB letter dated 19.12.2012, “if
the monazite is less than 5%, the tailings have to be disposed by mixing with
silica rich sand and back filled. If monazite is more than 5%, it should be
stored in a separate place” which is complied by the 8th
Respondent. (Index to common type set of papers filed by 8th and 22nd
Respondent S.No. 36 page no.
219 to 222)
(d)
The 8th Respondent also got the
proper license from the authorities. The letter will establish the same.
(e)
8th Respondent is permitted to store
the monazite tailings, they are under the institutional control of the
Government of India – Reply to Parliament Lok shaba question no. 2654. (Index to common type set of papers filed by
8th and 22nd Respondent S.No. 37 page no. 223)
(f)
Though one more company in Tamilnadu is
permitted to store monazite, the amicus did not make any comments to that
company.
(g)
As per customs, Tuticorin letter dated
22.6.2015, no unwanted materials were deducted in the Export consignment. (Index
to common type set of papers filed by 8th and 22nd
Respondent S.No. 38 page no. 224)
(h)
IREL stopped processing of monazite as it is
available much lower cost in other Asian countries. Parliament replies to
Qus.No. 420 – To establish there is no need to export or smuggle the same to
other countries. (Index to common type set of papers filed by 8th and 22nd
Respondent S.No. 39 page no. 227)
(i)
Illegal export of Thorium is false. It cannot be
export without the permission of DAE. Moreover, any country other than India is
planning significant use of Thorium either in the reactors or any other
development – Parliament replies to Qus. No. 1872 (Index to common type set of
papers filed by 8th and 22nd Respondent S.No. 40 page no.
228)
(j)
All the seaports and airports equipped with
gadget to find out radioactive material through 56 major cities and connected
900 Police stations – Parliament question No. 896. (Index to common type set of
papers filed by 8th and 22nd Respondent S.No. 41 page no.
231)
(k)
The complaint of export of monazite is wrong –
DAE Additional Secretary letter to National Security Advisor dated 01.06.2013
received under RTI on 06.09.2017 (Index to common type set of papers filed by
8th and 22nd Respondent S.No. 42 page no. 233)
(l)
Government of India permitted even foreign
companies and Indian Nationals and Indian companies to handle prescribed
substances under handling license rules – DAE RTI letter dated 12.02.2021 – To
establish that, lot of people involved even handling of prescribed substances. (Index
to common type set of papers filed by 8th and 22nd
Respondent S.No. 43 page no. 239)
(m) Record
of Discussion – DAE letter dated 06.01.2014 – To establish that, monazite is a
natural available mineral – the allegations are wantonly made and to avoid such
allegations DAE was requested to post officials in Tuticorin Chennai, Visak
ports on exporter’s cost. (Index to common type set of papers filed by
8th and 22nd Respondent S.No. 44 page no. 257)
(n)
Government of India pass order on 05.05.2022
only that export consignment of other minerals should contain upto 0.25%
monazite. So, the restriction is only for export. (Index to common type set of
papers filed by 8th and 22nd Respondent S.No. 45 page no.
263)
(o)
Rule 69(x) of MCR, 1960 monazite also available
in the associated minerals.
(e) Schedule I Part-B of MMDR Act, beach
mineral includes monazite which is added in the Atomic Mineral list during 2016
only based on the present PIL.
(f) IREL
sold the monazite only to other countries. 2nd respondent also
confirms the same (Index to common type set of papers filed by 8th and 22nd
Respondent S.No. 47, 48 page no. 266, 267) So there is no strategic use
for monazite.
(g) Amicus 2nd Report dated
09.07.2018 he has mentioned about the availability of monazite in all the
minerals and a worksheet, chart etc., which all are completely irrelevant.
(h)The
Amicus in any place did not mention which are the Act or Rule violated, which
are the conditions violated by the 8th Respondent – The 8th
Respondent has complied all the statutory requirements including terms and
conditions.
(i) During
the argument Mr. Amicus told that even final products also contain more than
0.25% of Monazite. But he wantonly failed to mention that even the IREL final
product also have the same but not in the private company’s beach mineral
mining lessees.
(Q) Written Submissions of Government Respondents do not point out any violation with respect to 8th Respondent.
1st Respondent written
submission:
81.
The first respondent (Ministry of Mines) did not
point out any violation against 8th Respondent. On the other hand,
para 13(ii) it has mentioned that the monazite should be disposed of by the
entity concerned at its own cost as per the directions of the AERB which is
complied by the 8th Respondent.
The 8th Respondent has complied all the statutory requirements mentioned
in their written submissions.
2nd Respondent written
submission:
82.
The written Argument para 33 will establish
that, the royalty is only for mineral on recovery percentage and hence the
miscalculated report submitted by the Amicus to be rejected summarily.
83.
The 2nd Respondents (Atomic Energy
Department) also in its written submission mentioned that, if 0.05% is taken
into account, the amicus reserve calculation may be correct. (If 0.01% is taken
into account, the quantity may go more than 35 to 40 Crore Raw material). Calculation is not the basis. But the actual
mining and actual availability is the basis. Their written submission is
against their own analysis report submitted at the time of Sahoo Committee
inspection.
84.
The 2nd Respondent in his additional
affidavit dated 5.1.2017 para 4.1 stated as follows: ... Further to the above, the
respondents 8 & 22 have furnished the quantity of tailings and percentage
of monazite in the said tailings in page number 16 and 17 of their letters
dated 04.12.2016 as under:
|
|
Quantity of Monazite rich tailings stored
|
|
Year
|
Quantity of tailings in Te
|
% of monazite in tailings
|
Total quantity of monazite (MT)
(computed by R2)
|
|
2007
|
2397.5
|
23.04
|
552.4
|
|
2008
|
4167.5
|
22.84
|
951.9
|
|
2009
|
4681.5
|
2397
|
1122.2
|
|
2010
|
4433
|
30.28
|
1342.3
|
|
2011
|
4406.55
|
30.84
|
1359.0
|
|
2012
|
10964
|
31.98
|
3506.3
|
|
2013
|
10995
|
28.05
|
3084.1
|
|
2014
|
15262
|
30.17
|
4604.5
|
|
2015
|
13643
|
29.26
|
3991.9
|
|
2016
|
9775
|
30.15
|
2947.2
|
|
Total
|
80725.05
|
|
23461.7
|
85.
It is
submitted that the data provided by the said respondents 8 & 22 regarding
concentration of monazite in the feed material is in accordance with the
information submitted to AERB (Atomic Energy Regulatory Board constituent wing
of the second respondent) in their licence applications and periodical Heal the
Physics Report”. ……..
This also will
establish that; Amicus Reverse calculation is completely wrong. It is not a
basis to find out the illegal mining.
86.
In case, the reverse calculation method is
adopted, IREL illegal mining quantity of heavy minerals will comes more than 9
Crores M. Ton of heavy minerals. In terms of raw sand, it will come more than
45 Crores as per the approved mining plan approved by AMD it contains only 20%
of the heavy mineral and the cost of mineral to be collected from IREL is works
out Forty Five Thousand Crores rupees in addition to Nine hundred Crore Rupees
as royalty. But the Amicus did not use
the same method with respect to other Respondents.
87.
The 4th Respondent written submission did not make any allegation
against 8th Respondent. It
admits approval of scheme of mining in favour of 8th Respondent. The
4th Respondent chart and affidavit will establish that, the 8th
respondent has valid mining plan / scheme of mining and its mined quantity also
within the permissible limit. The mined
quantity and removed from the mine quantity and the balance to be mentioned in
the monthly and annual returns submitted to IBM based on the month wise and
financial year wise.
88.
The transport permit is issued with one month
validity. So definitely there may small variations within the two statements.
In case any violation automatically IBM will issue notice and act, Rule 53 of
MCDR confer power to IBM even for prosecution and penalty.
89.
The letter of 6th Respondent dated
23.7.2013 (Brief note about writ appeal and the motive behind the litigations
Serial no. 28 Page no. 210 to 224) and District Collector dated 29.09.2012 and AMD, IBM, DGM office
joint inspection report (Index to common typeset filed by 8th
Respondent serial no. 32, 33 page no. 125 to 212) establish the quantity may vary from place to
place time to time and hence
all the allegations levelled against 8th
Respondent by Amicus is illegal.
Key issues mentioned by the Learned Amicus Curiae in
his report dated
20.6.2017 page no. 9 to 11
(i) Mining of
violation of mine plan / leases:
(ii) Issue of
Transport permit:
The above said two
points already explained in detail.
(iii) Illegalities in grant of EC violation of
conditions:
(a) 8th
Respondent have obtained valid environmental clearance for all its working
mines from MoEF even through this Hon’ble court has decided that, this is a
water front industry and directly needing foreshore facilities and no need to
get clearance in Indian Garnet Sand Company Vs. Union of India in W.P. No.
11971 and 15451/95 dated 09.09.1995.
(b) The MoEF
Committee report will establish that, there is no violation by the 8th
Respondent.
(c) The 26th
Respondent, through his henchman namely Thiyagi Ponnaiah Pillai filed a PIL
before this Hon’ble court. After detailed hearing this Hon’ble court dismissed
the PIL vide its order W.P. 25807 of 2006 dated 17.11.2006. Hence the issues
raised by the amicus as well as Bedi are completely without jurisdiction and
irrelevant.
(iv)
Illegal inclusion of Monazite and other heavy minerals in existing mining leases without prior approval of Govt., of India.
(a)For granting mining lease, prior
approval under section 5(1) of MMDR Act is mandatory which is obtained and
leases were granted to 8th Respondent.
(b) For
inclusion under rule 27(i)(b) of MC Rules, 1960 there is no need to get
approval from Central Government one more time.
(c) The
above position has also been confirmed by the Hon’ble Supreme Court in Common
Cause Vs. Union of India case, that, in case, the Central Government approval
is obtained for one mineral, there is no need to get again approval from
Central Government for inclusion of Associated minerals for the same area.
(d) In this
case, the inclusion referred by the amicus all are associated minerals for
which Govt., of India approval obtained area. Only inclusion under rule
27(i)(b) of MCR, 1960 with proper conditions, that the monazite should not be
disposed of without the permission of the 2nd Respondent alone
included.
(e) Hence
there is no illegality on this inclusion.
(v) Escaping royalty and under
assessment of royalty payments
90.
The above said issue has been explained in
detail and there is no violation with respect to 8th Respondent. All
were already discussed. His report AC Vol-15A annexes itself established this
allegation is wrong.
(vi) Continued Mining / Transport and export after
the imposition of the Ban in August /
September 2013.
(a) There is no ban on mining operations. It
was only a temporary stoppage until the Bedi Committee inspection was
completed. According to the Bedi Committee report, the inspection was completed
before 31.12.2013.
(b)MMDR Act and MC Rules, 1960 and MCDR,
1988 did not confer any power to the State Government to stop the mining
operation for major minerals.
(c) Reading
the G.O.156 and 173 will establish that, stop the mining operation and the
transport permit issue till the inspection is completed.
(d) According
to Amicus own report dated 20.06.2017 page no. 78, Bedi Committee completed its
super check inspection on 08.11.2013 and 09.11.2013 even though there is a stay
order against him by the Hon’ble High Court, he submitted the report during
2014. So
automatically the stoppage provision become infructuous.
(e) But 8th
Respondent did not carry out any mining operation after the G.O. date. Its
factories which are available with royalty suffered minerals produced the same
and export it. There is no ban for export either by State or Central
Government. If the learned amicus curiae read the G.O. he will find out the
same.
(f) The
8th Respondent continued to export the royalty-paid minerals through its
associated firms, even after the stoppage of mining operations. The said export
will also know to the 6th Respondent. The details are available in (VVM & TGI Convenance type set Vol-4 serial
no.8.) If 6th Respondent office file no.
10212/MMD.2/2014 is produced before this court, the above fact will be
established.
(g) The
royalty settlement orders in favour of IREL, produced by the 8th Respondent,
will establish that IREL transported more than the permitted quantity. However,
at the time of royalty settlement, it is specifically mentioned that only the
royalty was collected. This also demonstrates that there is no mandatory
provision requiring a transport permit. (Index to common type set of papers filed by
8th and 22nd Respondent S.No. 49 page no. 269)
(h)With respect to 8th
Respondent is concern, he has obtained proper transport permit for all the
98,80,600 M.Ton on payment of advance royalties and royalty settlement orders
also passed by the competent authorities. Hence the entire allegation is
without any facts.
General :
91.
The only requirement is the mining lessee has to
carry out the mining operation in accordance with the mining plan and scheme of
mining. Otherwise, IBM will send violation notice and directions if not
complied they will take penal action under Rule 58 of MCDR. Already they have
implemented the same to all the lessees.
92.
The lessee has to keep correct and accurate
account and remit the royalty. In case any violations, they will prosecute
under rule 52 of MCR, 1960.
93.
After the amendment of 2nd Schedule
during 2008, the royalty is on ad-valorem basis of sale price fixed by
Government of India, IBM. Hence, the royalty will be paid on sale price fixed
by Government. The waste and subgrade mineral will attract royalty in
accordance with Rule 64C of MCR, 1960. So according to law, the royalty is on
sale price fixed by the Central Government not by any others.
94.
All lessees are required to comply with the
conditions outlined in the mining lease granting order, the mining lease deed
covenants, and the conditions specified under Rule 27 of the MCR, 1960. No
violations have been pointed out against the 8th Respondent by either the Bedi
Committee, the District Committee, or the Amicus.
95.
In the case of any illegal mining, the
Government can take action through the empowered or competent authorities,
provided the statutory requirements are met. Due to business and family
motives, repeated complaints have been made against various parties. To prevent
such false complaints, it is respectfully requested that this Hon’ble Court
grant the victim the right to file a police complaint against the false
complainant, once the authorities have determined the complaint to be false.
96.
The lease-granting area is a rain-shadow region,
which is one of the most industrially backward areas, as declared by both the
State and Central Governments. With the 8th Respondent alone, over 8,000
employees were employed, all of whom lost their jobs due to the stoppage of
mining operations. Moreover, our huge natural resources are being wasted,
because of this stoppage, the other countries are getting the resources and
foreign exchange earnings.
97.
The Central Government loses valuable foreign
exchange worth over 2,000 crore rupees per year, and the GST revenue is reduced
by 540 crore rupees per year at a rate of 28%.
98.
Even according to the Bedi Committee report,
approximately 96 lakh metric tons of illegal mining has taken place in various
locations across all the villages. However, based on assumptions, he has
attributed the illegal mining to the 8th Respondent, as the mining leases and
factories are nearby. In reality, all the companies have land in all these
villages, which are in close proximity.
99.
On the other hand, as per the order of this
Hon’ble Court, the Sahoo Committee was appointed to ensure compliance with
statutory requirements. After 100% verification, the committee found the
following quantity of minerals available with various parties, as outlined in
his report on page 30.
|
S.
No
|
Lease / Plant
Owners
|
Quantity declared in
the Affidavits (in M.Tons)
|
Quantity estimated by
Sahoo committee in page No.30 (In
M.Tons)
|
Remarks
|
|
1
|
Transworld
Garnet
India Pvt
Ltd
|
17,75,761
|
16,30,724.5
|
|
|
2
|
Earth Mineral
Company
|
2,52,366
|
45,107
|
|
|
3
|
Indian Ocean
Garnet Sands
Company
Pvt Ltd
|
12,10,325
|
3,74,941.803
|
|
|
4
|
Miracle
Sands and Chemicals
|
1,576
|
1,423
|
|
|
5
|
Miracle Sands
and Metals
|
4,430
|
2,750
|
|
|
6
|
VV Mineral
|
42,11,032.85
|
38,77,391.05
|
|
|
7
|
Industrial
Mineral
India Pvt
Ltd
|
66,530
|
64,494
|
|
|
8
|
Industrial
Mineral
Company
|
4,42,080
|
25,58,169.93
|
|
|
9
|
Beach
Mineral Company India
Ltd
|
9,441
|
64,40,028.93
|
|
|
10
|
Bala Murugan
Company
|
2,168
|
1,193
|
|
|
11
|
DCW Ltd
|
2,368
|
4,094
|
|
|
12
|
IREL,
Manavalakurichi
|
5,80,656.27
|
5,48,363.44
|
|
|
|
Grand Total
|
85,58,734.12
|
1,55,48,680.61
|
|
100.
The chart mentioned above will establish that
the quantity of minerals attributed to the 8th Respondent (Serial No. 6) is
below the declared quantity. All the transport permit details and royalty
fixation orders have already been submitted before this Hon’ble Court.
101.
The Sahoo Committee report page no. 32 will
establish with whom the 96 Lakhs M.Tons are available. (But not with
8th
Respondent)
102.
Therefore, it is respectfully requested that
this Hon’ble High Court release the 8th Respondent from the clutches of the
other Respondents and permit the 8th Respondent to dispose of the minerals in
accordance with the law, as these are royalty-paid minerals. Furthermore, as
per the Supreme Court judgment in the case of Kaveri Chetty Vs. Union of India
– AIR 1995 SC 858, the State Government has no control over royalty-paid
minerals.
103.
With respect to the other respondents and the
stocks available with them, it is respectfully requested that this Hon’ble
Court direct the government to take appropriate action in accordance with the
law.
For the reasons
stated above, the PIL may kindly be dismissed with the aforementioned
observations, thus ensuring justice is served.
Counsel for 22nd Respondent.
IN THE HIGH COURT OF
JUDICATURE AT MADRAS
(CIVIL APPELLATE JURISDICTION)
W.P. 1592 of 2015 (Suo Moto PIL)
Registrar
General
...
petitioner
Vs
Union of india & ors.
… Respondent
NOTES ON SUBMISSIONS
M/s. KINGSLY SOLOMON J
Counsel for 22nd Respondent
9444270295
