Disposed
V.Ganesan v. the District Collector
Madras HCWA(MD)/31/2011
Case brief
from the order text
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BENCH OF MADRAS HIGH COURT DATED: 05.09.2011…
What the court decided
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.09.2011 CORAM:
THE HONOURABLE Mr.JUSTICE P.JYOTHIMANI
and
THE HONOURABLE Mr.JUSTICE M.M.SUNDRESH W.A.(MD)No.31 of 2011 and
M.P.(MD)No.1 of 2011
V.Ganesan
... Appellant
Vs.
3.The Project Director,
Nuclear Power Corporation of India Limited,
(A Government of India undertaking) Koodankulam, Tirunelveli District.
4.A.K.A.Rajan ...Respondents
Prayer: Appeal filed under Clause 15 of Letters Patent, against the order of this Court dated 19.10.2010 made in W.P.(MD)No.10571 of 2007.
WP.No.10571/2007 : This Writ Petition has been preferred under Article 226 of the Constitution of India, praying for the issue of a writ of certiorarified mandamus to call for the records of the first respondent in M1/39272/2006 dated 26.09.2007 quash the same from permitting the fourth respondent from quarrying within 5 kms radius of Koodankulam Nuclear Power Plan in violation of G.O.Ms.No.8291 dated 29.04.1991.
For Petitioner : Mr.T.S.R.Venkatramana For Respondents : Mr.K.Mahendran, Spl.G.P. for R1 and R2 Mr.Muthu Saravanan for R3 Mr.K.Srinivasan, Senior Counsel for Mr.S.P.Maharajan for R4
JUDGMENT
(Judgment of the Court was delivered by P.JYOTHIMANI,J.)
This Writ Appeal is directed against the order of the learned Single Judge in W.P.(MD)No.10571 of 2007 filed by the appellant herein, by which, the learned Single Judge has dismissed the Writ petition by order dated 19.10.2010 on the basis that in respect of grant of stone quarry lease to quarry rough stone / jelly over an extent of 5.24.0 hectares of patta lands in S.F.No.181 etc. of Irukanthurai Part III Village, Radhapuram Taluk based https://hcservices.ecourts.gov.in/hcservices/ on an application filed by the 4th respondent, the District Collector / first respondent has issued an order granting lease to quarry on 26.09.2006 for a period of 5 years. In the said order, the District Collector has
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also stated that the execution of the quarry lease is subject to the provision of Rules 19 and 20 of the Tamil Nadu Minor Mineral Concession Rules, 1959 and also subject to the further approval of the Kudankulam Local Committee for the period beyond 31.12.2007.
2.The learned Single Judge after going through the records, has found that the resolution of the Kudangulam Project Local Committee dated 15.02.2008, which is enclosed in the typed set of papers, shows that the Committee has granted no objection and therefore, as per G.O.Ms.No.829 Public Works Department, dated 29.04.1991, the Committees’ report has to be considered by the Collector with his discretionary power for using agricultural land for non agricultural purpose and has found that there is nothing wrong in granting such lease and accordingly, dismissed the Writ petition. It is against the said order of the learned Single Judge, the present Appeal is filed by the Writ petitioner, who has originally filed the Writ petition as a Public Interest Litigation.
3.Mr.T.S.R.Venkataraman, learned counsel appearing for the appellant would vehemently contend that his contention is not based on any of the rules under the Tamil Nadu Minor Mineral Concession Rules, 1959, but, mainly based on the confirmation of the provisions of G.O.Ms.No.829 Public Works Department, dated 29.04.1991, which contemplates the constitution of a Committee called as Kudangulam Project Local Committee, which has got a right to review and recommend to the Government regarding the provisions as stated in the said Government Order, which enables the Collector to decide about the grant off permission for quarry by converting any agricultural land to non agricultural lands. His further contention is that the Committee constituted as per the said G.O., has to consider the applications and give recommendations to the Collector. It is thereafter, if the Collector agrees with the recommendation, he has to issue the licence and if he fails to agree to the recommendations, he has to refer it to the Government, which has to ultimately decide. According to the learned counsel for the appellant, he is concerned about the improper constitution of the Committee as per the said Government Order. According to him, the Committee constituted is not in accordance with the said Government Order and therefore, the consequential impugned order, by which, the Collector has granted licence in favour of the 4th respondent, cannot be said to be legal.
4.On the other hand, it is the contention of Mr.K.Srinivasan, learned Senior Counsel appearing for the 4th respondent, whose application was considered by the Collector, who was granted the licence, that even though the licence was granted in the year 2006, since the licence period exceeds 2007, as per the condition imposed under the licence, the recommendations of the Committee is necessary and the matter is pending before the Committee and therefore, from 2009 onwards, the 4th respondent is not effecting any quarrying operation. According to him, the Committee was constituted as per the Government Order and if and when any recommendation is given by the Committee, which is not as if it is going to be final, ultimately, it has to be decided by the Collector and thereafter, with the Government, if the Collector disagrees and therefore, there are checks and https://hcservices.ecourts.gov.in/hcservices/ balances and protections everywhere as per the provisions of the Government Order and the appellant is not aggrieved by that.
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5.Mr.K.Mahendran, learned Special Government Pleader would submit that from 2009 onwards, the Government has not allowed anybody to quarry the land. He also would submit that there is no proposal to grant any quarrying operation to anyone in the said area. The learned Special Government Pleader would also submit that since the Committee has not cleared in granting lease in favour of the 4th respondent, no decision has been taken till date.
6.Considering the above said facts and circumstances of the case, we are of the view that there is certainly substance in the contention of the learned counsel for the appellant. It is true that the Collector has got power to grant licence for the purpose of granting of lease. But, that is restricted to based on the recommendations to be given by the Kudangulam Project Local Committee constituted by the Government as per G.O.Ms.No.829 Public Works Department, dated 29.04.1991. A reference to the said Government Order shows that the intention of the Government Order is to protect the nuclear power station at Kudangulam, Rathapuram Taluk, Tirunelveli District and also for the purpose of preventing the conversion of agricultural land for non agricultural purposes. It is for the purpose of putting a check over the said indiscriminate conversion, the Government has constituted the said Committee in the name of Kudangulam Project Local Committee consisting of the following members:
"(i) Project Engineer (Civil) Chairman Kudankulam Project, Nagercovil. (ii) Sub Collector / Revenue Divisional Member Officer, Cherankahadevi. (iii)Representative from Heal and Safety Member Division, Baba Automic Centre for Automic Energy / Nuclear Power Corporation. (iv) Divisional Development Officer, Member Cheranmahadevi. (v) Deputy Director of Town and Country Member Planning, Tirunleveli. (vi) District Heal Officer, Tirunelveli. Member (vii)Panchayat Union Commissioner, Secretary" Radhapuram.
7.A further reading of the said Government Order makes it very clear that the recommendation of the Committee is only recommendary in nature and ultimately, it is only for the Collector to grant licence. If the Collector disagrees with the Committee, the Government Order shows that he has to refer it to the Government for a final decision. Now, referring to the impugned order in the context of the Government Order and also taking note of the fact that from 2009 onwards, the 4th respondent has not been permitted to quarry, certainly, the object of the Writ petition becomes infructuous. It is also brought to the notice of this Court by the learned Special Government Pleader that in the meeting conducted on 25.02.2011, it has been resolved that quarry operation cannot be permitted to any one, since Kudangulam Nuclear Project is nearing operation status. The quarry lease, which has been granted for 5 years to the 4th respondent, was https://hcservices.ecourts.gov.in/hcservices/ executed on 01.11.2006 and the period of lease itself will be expiring on 31.10.2011. In spite of the same, it is, on fact, clear that from 2009 onwards, the 4th respondent is not effecting any quarrying operation. If
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any application of the 4th respondent is pending before the Kudangulam Project Local Committee constituted as per the Government Order as stated above, it is for the Committee to consider the case of the 4th respondent in which case, the appellant is also entitled to participate.
Sd/-
Assistant Registrar(AS)
/True copy/
Sub Assistant Registrar(CS)
To
nbj
| W.A..(MD)No.31 of 2011 and | |
|---|---|
| MP(MD)No.1 of 2011 | |
| 05.09.2011 | |
| TR : 28.09.2011 : 4P/5C |
2 issues framed by the court
Whether the Apex Court should quash the lease granted for quarrying within 5 kms of Kudankulam Nuclear Power Station due to procedural irregularities in the committee's composition.
Whether the lease holder is currently permitted to quarry given pending committee recommendations and proximity to nuclear operation.
V.Ganesan
District Collector, Tirunelveli
Deputy Director of Mines and Geology
Project Director, Nuclear Power Corporation of India Limited
A.K.A.Rajan
P.Jyothimani
M.M.Sundresh
As recorded by the court registry
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