The Madras High Court seeks fresh profiling of Tamiraparani river sands and finds the extent of illegal sand quarrying alarming

Print edition : January 29, 2021

Indiscriminate excavation of inner bed sand in the Tamiraparani has remained unchecked. The looting of river sand in the 120-km-long Tamiraparani, as in other rivers across Tamil Nadu, has been a burning issue for long. Photo: by special arrangement

An aerial view of the check dam under construction across the Tamiraparani at Agaram Kudiyiruppu in Thoothukudi district. An agriculturist of Agaram village petitioned the court in October 2020 seeking an end to illegal quarrying of river sand.

K. Kalaivanan, the court-appointed Advocate Commissioner, conducting test pit measurements and inspection for presence of heavy minerals in the area around the new check dam construction site at Agaram Kudiyiruppu along with the taluk surveyor and other revenue officials of Thoothukudi district. Photo: BY SPECIAL ARRANGEMENT

Kalaivanan, accompanied by government officials, arrives for inspection of the check dam site. Photo: by special arrangement

The report surmised that the area where the check dam was coming up consisted of not only ordinary sand but also a substantial amount of heavy minerals and atomic minerals. Photo: BY SPECIAL ARRANGEMENT

An atomic minerals scientist taking sand samples from the Tamiraparani riverbed at Agaram Kudiyiruppu.

A report submitted to the High Court points to the presence of precious minerals in the Tamiraparani riverbed and the illegal mining activity there, adding a new dimension to Tamil Nadu’s mining policy.

A REPORT on the Tamiraparani in southern Tamil Nadu has not only exposed the indiscriminate and illegal excavation of river sand but revealed the fact that the river is rich in placer deposits comprising rare earth and atomic minerals. K. Kalaivanan, former Joint Director of the Department of Geology & Mining, Government of Tamil Nadu, submitted the report to the Madurai Bench of the Madras High Court on December 10, 2020.

In response to a writ petition, the court had, on November 23, appointed the geologist as its Advocate Commissioner and directed him ”to ascertain the actual and factual position on the excavation of sand at Agaram Kudiyiruppu, Vallanadu village, Srivaigundam taluk, Thoothukudi district”.

K. Balakrishnan, an agriculturist of Agaram village, filed the writ petition on October 8 seeking the court’s direction to the District Collector and other officials concerned of Thoothukudi district “to stop illegal sand mining going on at the construction site of the new check dam coming up across the Tamiraparani river” near Agaram Kudiyiruppu. The petitioner further claimed that there was no need for a new check dam as the one constructed upstream four years ago was located “just 500 metres away from the site” where the new one was coming up.

After accepting the Advocate Commissioner’s report, which sought fresh scientific profiling of rivers and sands by experts, the bench comprising Justices N. Kirubakaran and B. Pugalendhi suo motu impleaded senior officials of the Atomic Minerals Directorate for Exploration and Research and the Department of Atomic Energy (DAE), Government of India, and Secretaries of the Public Works Department (PWD) and the Industries Department, Government of Tamil Nadu, as additional respondents. Further hearings were posted for January 20, 2021, pending reports from the new respondents. Thus, the geologist’s report prompted the court to seek experts’ opinion on the presence of heavy minerals in the Tamiraparani sands. The judges appreciated the commissioner’s work for unearthing “this treasure of heavy rich minerals/atomic minerals from the river Tamiraparani, at least now. The value of the sand, in the present-day scenario, is equivalent to gold, and the illegal quarrying of sand is alarming.”

Also read: SANDRP report points to increasing violence by illegal sand miners and calls for urgent need to regulate riverbed mining

In the absence of adequate studies on the nature and quality of placer deposits in the river sands of Tamil Nadu, the Advocate Commissioner’s report on the Tamiraparani has added a new dimension to the State’s mining policy on rivers, especially those that originate from the Western Ghats. A large quantum of placer minerals are found in the beach sands of Tirunelveli, Thoothukudi and Kanyakumari districts. The commissioner’s finding that the Tamiraparani has rich placer deposits necessitates a fresh profiling of the Vaigai, the Vaippar and the Tamiraparani.

The contract to construct the new check dam was given to D. Shanmugavel of Salem, the sixth respondent in the petition. An agreement in this regard was executed on February 15, 2019. The PWD’s Water Resource Organisation (WRO), through its GO (D) No. 87, dated 28.3.2018, had accorded administrative sanction for the work of construction of 12 check dams in various districts of Tamil Nadu at a cost of Rs.5,151.87 lakh with loan assistance from NABARD under its RIDF (Rural Infrastructure Development Fund) XXIII Scheme for 2017-18. The new check dam across the Tamiraparani is one of them and its estimated cost is Rs.1,228.85 lakh. Tamil Nadu Chief Minister Edappadi K. Palaniswamy holds the Public Works portfolio.

The looting of river sand in the 120-kilometre-long Tamiraparani as in other rivers across the State, including the Cauvery, the Vaigai, the Thenpennai and the Palar, has been a burning issue for long. The general public and other stakeholders have been opposing the politically powerful sand mafias. Frequent judicial interventions have helped them in their battle to save waterbodies from destructive mining activities. The state, too, on many occasions, has been a partner in crime.
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The Tamiraparani flows from the Western Ghats in a south-easterly direction, meanders in the north-easterly direction for some distance and again flows towards the south and the east before draining into the Gulf of Mannar near Punnakayal, 15 km south of Thoothukudi. The river basin occupies an aerial extent of 5,382 square km. Of the total land area (4,016 sq. km) along the main river and along its drainage area, 67.4 per cent is agricultural land. Paddy is the main crop grown in these areas. The other crops include oilseeds, pulses, vegetables, sugarcane and plantain.

Sand mining banned in 2010

A decade ago, the Madurai Bench of the High Court, in its judgment on a batch of petitions, including one filed by the veteran Communist Party of India leader R. Nallakannu, had banned sand mining in the Tamiraparani for five years. Responding to their pleas on December 2, 2010, Justices R. Banumathi and S. Nagamuthu said that on a number of occasions, excessive sand quarrying in the Tamiraparani had been brought to the notice of the court. The court issued directions and expressed concern over the illegal, excessive and unscientific quarrying.

It directed that sand quarrying/mining should not be carried out in the entire stretch of the Tamiraparani for five years from the date of the order. The ban was subsequently extended following another batch of similar petitions. Justices Kirubakaran and Pugalendhi ruled that “Now the position has become worse”. Indiscriminate mining of river sand, both legally and illegally, remains unchecked. In fact, many activists who had taken on the sand mafias have lost their lives. A police constable was killed by an illegal miner in Thoothukudi district recently.

Commissioner’s report

As instructed by the court, the Advocate Commissioner carried out a detailed scientific study from November 30 to December 2, 2020, on the impact of sand mining in the river and submitted his report to the court. On the basis of the report, the court sought technical inputs from the DAE. It refused to lift the ban on sand quarrying imposed by the previous court order but permitted the contractor to complete the project by using m-sand (manufactured sand) or any other material. The commissioner studied the new check dam construction site and permanent features such as infiltration, collector wells, pipelines, graveyards and village sites by using a total station survey instrument with the assistance of the taluk surveyor and other revenue officials of Thoothukudi district.

In order to ascertain the damage, a series of satellite images of the check dam site—both during pre-construction and post-construction periods, from February 18, 2020, to August 27, 2020—were sourced and studied. Additionally, aerial photography was done using drones provided by the PWD. “Subsequently, in order to find out the lithology and the sand horizon, field studies have been carried out by trenching in four places,” the commissioner stated in the report.

A preliminary prospecting operation was carried out for the identification of light mineral sand and heavy minerals such as garnet, ilmenite, rutile and zircon along with a detailed survey to ascertain the volume of mining and quarrying operations while constructing the check dam. Revenue records and Survey of India toposheets were scrutinised. The geology of the river basin at the new dam site was studied.

Also read: A sand scam

The excavations, permitted by the PWD in the areas under study, for construction of the check dam and for sand mining, were measured. In the agreement, a special condition, Condition IV, was incorporated allowing the contractor to use the available sand in the riverbed and the areas near the construction site.

“For the usage of sand in this work by the contractor, necessary deduction should be made by the executive engineer of the PWD concerned from every bill after assigning the actual quantity of sand utilised for this work at the rate for sand as PWD schedule of rates,” the report noted.

But during the hearing, the petitioner reportedly placed before the court a copy of the original agreement with the contractor in which the special Condition IV was not mentioned. The report said the river sand, in the area where the check dam was being constructed, consisted of a “substantial percentage of heavy minerals such as garnet, ilmenite, rutile, zircon, leucoxene, sillimanite, kyanite and monazite”. It claimed that “the total quantity of the sand consumed by the contractor as furnished by the PWD is 42,325.15 m [cubic metre]. The cost of sand deducted from the bill amount due to the contractor as furnished by the PWD is Rs.10,95,987.”

Presence of minerals

But the report presented a shocking picture. “The total quantity of sand excavated from the subject area (dam site) by using total station survey during the inspection is arrived as 109077.17m.”

The commissioner submitted a detailed table showing the volume of sand that was mined at the check dam site and in the adjacent area, including the dam basin area, upstream and downstream cut-off wall areas, and upstream and downstream aprons. The report also meticulously recorded the presence of minerals in the sand.

Kalaivanan surmised that the area where the check dam was coming up consisted of not only ordinary sand but also a substantial amount of heavy minerals and atomic minerals, as prescribed under Part B of the I Schedule of the Mines and Mineral (Development and Regulation) Act, 1957, amended in 2016. Sub rule (1) of Rule 8 of the Atomic Mineral Concession Rule, 2016, prescribes: “No mining operations shall be undertaken with respect to a mining lease granted under Sub-rule (7) of Rule 6, except in accordance with a mining plan which has been approved by the Directorate pursuant to Clause (b) of Sub-section (2) of Section (5).”

Its Rule 37 prescribes: “Any contravention of these rules shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to five lakh rupees, or with both, and in the case of a continuing contravention, with additional fine which may extend to rupees fifty thousand for every day during which such contravention continues after conviction for the first such contravention.”
Also read: Beach sand mining at the Marina

The Mines and Mineral (Development and Regulation) Act, 1957, envisages the regulation of mines and the development of minerals under the control of the Central government.

The report said: “In order to exercise this control, no reconnaissance or mining operations in any area are allowed by any person except with the permission of the Central government and State government and as per the section 4 (1), 4 (2) and 5 of the Act and as per the Mineral Conservation Development Rule, 2017, and in respect of atomic mineral under the provisions of the Atomic Mineral Concession Rule, 2016.”

Any lease granted in contravention of the Act, the report pointed out, would be rendered void under Section 19 of the Act. The penal provision and compensation for contravention of the Act and rules in respect of mining, storage and transportation are also provided under Section 21 of the Mines and Mineral (Development and Regulation) Act, 1957, under Rule 37 of the Atomic Mineral Concession Rule, 2016, and Rule 62 the Mineral Conservation Development Rule, 2017.

As far as minor minerals were concerned, the State government was authorised to make rules under Section 15 of the Mines and Minerals (Development and Regulation) Act, the report said.

The State government could notify in the official gazette to make rules to regulate the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals, such as “building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central government may, by notification in the official gazette, declare to be a minor mineral”.

For quarrying, the State government introduced Rule 38A in the Tamil Nadu Minor Mineral Concession Rule, 1959, and it was vested in the PWD. However, the power to grant mining leases for quarrying ordinary sand vests with the District Collector as per the GO Ms.No110 Public Works (C.PA.2) Department dated 06.07.2006 subject to the mining plan, environmental clearance, consent of the Pollution Control Board under the Air and Water Acts, the Wildlife (Protection) Act and the River Conservancy Act.

No power to permit quarrying

Accordingly, the report stated that the PWD of Tirunelveli and Thoothukudi districts did not have the powers to grant permission to quarry, transport and consume the mineral-rich sand in the area without the permission of the State government and the Government of India and without a lease agreement under the provisions of the relevant Acts and Rules. During the inspection, the Advocate Commissioner noted that contrary to rules and regulations the sand quarrying operations were carried out near the village’s permanent structures such as water pipelines and infiltration/collector wells. Further, the quarrying activity was carried out within a 10 km radius of the Vallnadu Deer Sanctuary, which was in contravention of the Wildlife (Protection) Act, 1972, and other allied rules, the report observed.
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In its concluding chapter, the exhaustive report reiterated that a concentration of heavy minerals and atomic minerals was present in the river sand at the site area where the check dam was coming up.

The Advocate Commissioner noted that a survey report of the Geological Survey of India in 1942-43, published by the Government of Madras Development Department vide GO No.3088 dated July 15, 1944, revealed the presence of heavy minerals in Tirunelveli, Thoothukudi, Ramanathapuram, Thanjavur, Nagapattinam and Tiruvarur.

Therefore, Kalaivanan surmised in his report, that the permission the PWD authorities granted to the contractor to construct a check dam across the Tamiraparani in the subject area, consisting of high-value minerals, was contrary to the Mines and Minerals (Development and Regulation) Act, 1957 (67 of 1957); the Atomic Mineral Concession Rule, 2016; the Mineral Conservation Development Rule, 2017; the Tamil Nadu Minor Mineral Concession Rule, 1959; the Environment (Protection) Act, 1986; the Air (Prevention and Control of Pollution) Act, 1981, along with rules, 1982; the Water (Prevention and Control of Pollution) Act, 1974, along with rules, 1975; the Wildlife (Protection) Act, 1972; the River Conservancy Act, 1884; and the Atomic Energy Act, 1962; and to the various orders passed by the Supreme Court and the National Green Tribunal.

The report concluded: “Sand in the subject area is not ordinary sand used for construction purpose and it contains valuable strategic and critical mineral used for nuclear power programme and allied areas of high technology. The proper utilisation of these mineral abundantly available in the subject area and other places can play a vital role in developing the national socio-economic condition.”

Court expresses shock

Justices Kirubakaran and Pugalendhi observed that “the quantum of sand excavated, which is said to be 109077.17 cubic metre, is also quite alarming, as it would not have been possible without the knowledge of the authorities”. The judges expressed surprise, noting that they were unable to understand how the authorities allowed the contractor to excavate sand and minerals in the Tamiraparani. Since the report revealed that “the minerals found in the Tamiraparani are atomic /heavy minerals”, the court, suo motu, impleaded the Secretary, DAE; Director, Atomic Minerals Directorate for Exploration and Research, DAE; Secretary, Industries Department, Government of Tamil Nadu; and Secretary, PWD, Government of Tamil Nadu; as new respondents and asked them to file their responses on January 20.

The court ordered the officials concerned to ensure that “there shall not be any alteration or modifications on the site until the inspection by the newly impleaded respondents. Any mineral or sand or whatever excavated from the Tamiraparani, even for construction purpose, shall be preserved until the inspection and submission of report of the newly impleaded respondents.”

In fact, the presence of the placer mineral deposits was detected in 1942-43 by Dr K. Jacobson. Yet, the court said, the government had not detected these minerals in the river until now.

Also read: Forgotten lessons from the Western Ghats

The judges said the sand was allowed to be quarried without grant of lease or permit by the District Collector and permission from the State Environment Impact Assessment Authority (SEIAA) and in contravention of the orders of the National Green Tribunal. The court noted that the PWD had unilaterally permitted the contractor to quarry the sand without obtaining the necessary lease or permit.

The Tamiraparani Basin Circle has 60 drinking water wells upstream and three irrigation wells near the site of the new check dam, which served 637 rural habitations. “It is pertinent to mention that this court, in a batch of W.P. (i4D) Nos. 11182 of 2020, etc., dated [M. Periyasamy vs State of Tamil Nadu and others] has an order prohibiting quarrying operations in the river. This order holds good till date and no quarry operation is permitted in the river Tamiraparani since then,” the court observed.

It pointed out that the petitioner, an ordinary agriculturist, had approached the court to prevent the illegal quarrying of river sand. He was threatened for filing the petition. The court ordered police protection for him.

“But it was informed that the orders of this court have not been complied with and police protection was not provided, and again, the petitioner was intimidated. Therefore, this court has summoned the Superintendent of Police, Thoothukudi, and passed a detailed order on 23.11.2020 to provide necessary protection to the petitioner,” the judges observed

“Very rarely, people are coming forward to highlight such illegal quarry operations by the sand mining mafias. It is the duty of the police to protect every citizen and, more particularly, the persons, who have knocked at the doors of justice, for a genuine cause,” the court said.

PWD reacts sharply

However, the PWD (WRO) reacted sharply to the report. It filed a detailed objection report before the court on behalf of the Special Chief Engineer, Tamiraparani Basin Circle, PWD (WRO), on December 14. The PWD claimed in its report that certain errors, lapses, omissions and commissions were found the Advocate Commissioner’s report “in the manner of survey, incorrect findings and conclusions on extraneous reasons regarding excavating site, quantity excavated”. Hence, it asked the court to set aside his report.
Also read: Illegal riverbed mining in Tamil Nadu

Claiming that most of the findings were “highly exaggerated”, the PWD (WRO) said that the site in question “is neither a quarry site nor mining site, but construction site of a check dam under the government scheme for augmenting water supply and groundwater recharge”. It said the Advocate Commissioner was expected to give a report of the physical features of the site in question as directed by the court but was involved in making a statement on presumption and assumptions without any concrete proof, and gave his legal opinion and decision to the prejudice of the PWD. “Hence his findings and conclusions thereon are liable to be set aside,” it said. The Advocate Commissioner’s reference to laws, rules and judgments was unwarranted and uncalled for since he was not appointed to give any legal opinion or application of law or applicability of law against the government, the complaint said. It was beyond the work assigned to him and showed that he had taken personal interest. Besides, the report did not mention the volume of sand and earth extracted from the check dam site, it said.

On the reported presence of atomic minerals in the river sand, the PWD report said it was a subject matter for further appointment of an expert commission by the court for research and analysis. The court was seized of the matter and ordered a separate commission and inspection by experts of atomic mineral research, it noted.

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