Madras High Court
D.Jayakumar vs The District Collector on 22 February, 2019
Author: S.Manikumar
Bench: S.Manikumar, Subramonium Prasad
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.02.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.No.18872 of 2017
D.Jayakumar .. Petitioner
Vs.
1.The District Collector,
Tiruvallur,
Tiruvallur District.
2.The Revenue Divisional Officer,
Tiruvallur Taluk,
Tiruvallur District.
3.The Tahsildar,
Tiruvallur Taluk,
Tiruvallur District.
4.The Assistant Director (Mines),
Tiruvallur District.
5.The Executive Engineer,
Water Resources (Tank),
Public Works Department,
Tiruvallur District.
6.G.Kumar .. Respondents
(Respondent No.6 impleaded vide order
dated 22.02.2019, made in WMP.37969 of 2018
in W.P.No.18872 of 2017)
http://www.judis.nic.in
2
Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
issuance of a Writ of Mandamus, forbearing the respondents from removing
the soil, clay, savudu and gravel or issue any contract for soil, clay, savudu
and gravel in the Velliyur tank situate in Survey No.274, Velliyur Village,
Tiruvallur Taluk and District, strictly in compliance with sub rule (2) (a) of
Rule 12 of the Tamil Nadu Minor and Mineral Concession Rules, 1959 as
published in G.O.Ms.No.50, Industries (MCC.1) Department, dated
27.04.2017.
For Petitioner : Mr.R.Bharanidharan
For Respondents : Mr.E.Manoharan
Additional Government Pleader
ORDER
(Order of this Court was made by SUBRAMONIUM PRASAD, J.) The instant public interest litigation has been filed for a Writ of Mandamus, forbearing the respondents from removing the soil, clay, savudu and gravel or issue any contract for soil, clay, savudu and gravel in the Velliyur tank situated in Survey No.274, Velliyur Village, Tiruvallur Taluk and District, strictly in compliance with sub rule (2) (a) of Rule 12 of the Tamil Nadu Minor and Mineral Concession Rules, 1959 as published in G.O.Ms.No.50, Industries (MCC.1) Department, dated 27.04.2017.
2. Petitioner is a resident of Velliyur Village. He has filed this writ petition stating that the second respondent has issued a notification for http://www.judis.nic.in 3 quarry of savudu in respect of Survey No.274 (PWD Tank) of Velliyur "B" Village of Tiruvallur Taluk, Thiruvallur District. According to the petitioner, the application of one Mr.G.Kumar, was processed for grant of permission to quarry savudu for the period of 40 days in Survey No.274, PWD Tank, to an extent of 115 meter in width and depth of 0.90 meters in Velliyur "B Village, Thiruvallur Taluk, Thiruvallur District on payment of necessary fees and charges under Rule 12 of Tamil Nadu Minor Mineral Concession Rules, 1959.
3. Mr.G.Kumar, the successful applicant has filed an application in W.M.P.No.37969 of 2018, for being impleaded as party respondent, claiming that his application has been short listed for grant of permission for quarrying soil, clay, savudu and gravel in Survey No.274 (PWD Tank) of Velliyur "B" Village of Tiruvallur Taluk, Thiruvallur District. The said application was ordered on 22.02.2019.
4. The contention of the petitioner is that the respondents cannot grant permission to Mr.G.Kumar. The said permission is violative of Rule 12(2)(a) of the Tamil Nadu Minor and Mineral Concession Rules, 1959. The petitioner would state that Rule 12 of the Tamil Nadu Minor and Mineral Concession Rules, 1959 was amended by G.O.Ms.No.233, Industries (MMC.2) http://www.judis.nic.in 4 Department, dated 23.09.2015. Rule 12(2) of the said Act, was substituted to read as under:-
"2) For quarrying silt, savudu and gravel from the beds of tank under the control of Public Works Department or Rural Development and Panchayat Raj Department, the Tahsildars shall prepare the list of tanks and submit their proposal to the District Collector. The list of tanks shall be referred by the District Collector to the Executive Engineer, Public Works Department or Executive Engineer, Rural Development and Panchayat Raj Department as the case may be in respect of tanks in-charge for demarcation of eligible areas and for estimation of quantum of mineral to be removed in respect of each area along with the conditions to be stipulated for removal of mineral from the tanks.
The public may be allowed to quarry free of charge for bonafide domestic or agricultural purposes earth, silt, savudu, etc., fromthe beds of tanks under the control of the Public Works Department or Rural Development and Panchayat Raj Department which are notified by the Collector in the District Gazette under this Rule after obtaining permission from the District Collector for quarrying, provided that the dwelling place or agricultural land of the person concerned and the quarrying place shall be in the same revenue village or in the adjoining revenue village. http://www.judis.nic.in 5 “Provided that the quantity of mineral proposed to be removed from the tanks shall not exceed 30 Cu.mtrs. (or 5 lorry loadsof 200 cft each)” “Provided further that prior permission shall be obtained from the District Collector for removal of such quantity of mineral from the tanks and the period of permission shall not exceed 10 days”.
“Provided further that quarrying shall be permitted only in the area demarcated by the Public Works Department/RuralDevelopment and Panchayat Raj Department for this purpose”.
Any removal of mineral from these lands shall be subject to the following restrictions, namely:-
(i)Pits shall be at a distance of at least twice the height of the bund from the toe of the bund and they shall not be more than one metre in depth (the depth shall be less, if pits one metre deep are likely to expose porous strata);
(ii)Earth, silt, savudu, etc., shall not be carted along the tank bund unless the bund is a recognized road or cart-track;
(iii)Bunds shall not be cut to enable to pass;
(iv)Earth, silt, savudu, etc., removed should not be stacked on tank beds, sluice or any other masonry works of thetanks and causeways or slopes of the bunds; and
(v)Vehicles and carts shall not touch any portion of the http://www.judis.nic.in 6 revetment, sluice or any masonry works of the tanks and cause damage to them."
5. However by notification in G.O.Ms.No.50, Industries (MMC-1) Department, dated 27.04.2017, Rule 12(2)(a) of the said Act, was substituted, to read as under:-
"(2) (a) Notwithstanding anything contained in these rules, for quarrying clay, silt, savudu and gravelfrom the beds of tanks, channels and reservoirs in the State (except Chennai, Kancheepuram and Tiruvallur Districts) under the control of Public Works Department or Rural Development and Panchayat Raj Department,the Executive Engineer, Public Works Department or the Executive Engineer of the Rural Development and Panchayat Raj Department, as the case may be, shall prepare the list of tanks, channels and reservoirs and submit their proposal to the District Collector for removal of clay, silt, savudu and gravel from the beds of tanks,channels and reservoirs with demarcation of eligible areas and the estimation of quantum of such mineral to be removed in respect of each area along with the conditions to be stipulated for removal of such mineral from the tanks, channels and reservoirs. The District Collector shall notify the said list in the District Gazette.
(b) Any person engaged in the making of pots or any registered http://www.judis.nic.in 7 Pottery Labourers Co-operative Society registered under the Tamil Nadu Co-operative Societies Act,1983 (Tamil Nadu Act 30 of 1983) for making pots, the public for bonafide domestic purpose and the farmers for agriculture purpose be allowed to quarry clay, silt, savudu and gravel, on free of charges from the beds of tanks, channels and reservoirs under the control of the Public Works Department or Rural Development and Panchayat Raj Department which are notified by the District Collector in the District Gazette under this rule after obtaining permission from the District Collector for quarrying:
Provided that the dwelling place or agricultural land of the person concerned and the quarrying place shall be in the same revenue Village or in the adjoining revenue Village. For removal of the above said minerals by any person for agricultural purpose shall produce a certificate issued by the Village Administrative Officer to the effect that they are holding lands in their name or a cultivating tenant as per Adangal Register:
Provided further that the quantity of silt and clay proposed to be removed for agricultural purpose from the beds of tanks, channels and reservoirs shall not exceed 75 Cubic meters per acre (185 Cubic meters per Hectare) for wet lands and a quantum not exceeding 90 Cubic meters per acre (222 Cubic meters per Hectare) for dry lands http://www.judis.nic.in 8 once in two years. The quantity of earth, savudu and gravel proposed to be removed for other domestic purposes shall not exceed 30 cubic meters. The quantity of clay proposed to be removed for making pots shall not exceed 60 cubic metres:
Provided also that prior permission shall be obtained from the District Collector for removal of such quantity of minerals from the tanks, channels and reservoirs and the period of permission shall not exceed20 days:
Provided also that quarrying shall be permitted only in the area demarcated by the Public Works Department or Rural Development and Panchayat Raj Department, as the case may be, and the minerals shall be loaded in the Vehicles brought by the applicant by the Public Works Department or Rural Development and Panchayat Raj Department, as the case may be.
(c) Any removal of mineral from these lands shall be subject to the following restrictions, namely :—
(i)Pits shall be at a distance of at least twice the height of the bund from the toe of the bund and they shall not be more than one metre in depth (the depth shall be less, if pits one metre deep are likely to expose porous strata);
(ii)Clay, silt, savudu and gravel shall not be carted along the tank bund unless the bund is arecognized road or cart-track;
http://www.judis.nic.in 9
(iii)Bunds shall not be cut to enable to pass;
(iv)Clay, silt, savudu and gravel removed should not be stacked on tank beds, sluice or any other masonry works of the tanks and causeways or slopes of the bunds; and
(v)Vehicles and carts shall not touch any portion of the revetment, sluice or any masonry worksof the tanks and cause damage to them.”; and(2) in sub-rule (2-A), in clause (a), for the expression “30 cubic meters”, the expression “222 cubic meters”shall be substituted”.
(emphasis supplied)"
6. A perusal of the amendment dated 27.04.2017 would show that for quarrying clay, silt, savudu and gravel from bets of tank, channels and reservoirs in the State (except Chennai, Kancheepuram and Tiruvallur Districts) under the control of Public Works Department or Rural Development and Panchayat Raj Department, the Executive Engineer, Public Works Department or the Executive Engineer of the Rural Development and Panchayat Raj Department, as the case may be shall prepare the list of tanks, channels and reservoirs and submit their proposal to the District Collector for removal of clay, silt, savudu and gravel from the beds of tanks, channels and reservoirs with demarcation of eligible http://www.judis.nic.in 10 areas and the estimation of quantum of such mineral to be removed in respect of each area along with a conditions to be stipulated for removal of such mineral from the tanks, channels and reservoirs.
7. A perusal of the said amendment would also show that the beds of tanks, channels and reservoirs in Chennai, Kancheepuram and Tiruvallur Districts, are specifically excluded from applicable to Rule 12(2)(a) of the Tamil Nadu Minor and Mineral Concession Rules, 1959.
8. The petitioner has yet not been given the work. In the light of the amendment to Rule 12(2)(a) of the Tamil Nadu Minor and Mineral Concession Rules, 1959 excluding the districts of Chennai, Kancheepuram and Tiruvallur form ambit of Rule 12(2)(a) of the said Act, no work can be awarded for quarrying of silt, savudu and gravel from the beds of tanks in these three districts.
9. There is no vested right in favour of Mr.G.Kumar, (impleaded respondent), In fact he cannot claim that the amended government order, will not apply to him. In view of the fact that Rule 12(2)(a) of the Tamil Nadu Minor and Mineral Concession Rules, 1959, has specifically excluded the right to quarry of silt, savudu and gravel from the beds of tanks, http://www.judis.nic.in 11 channels and reservoirs in Chennai, Kancheepuram and Tiruvallur Districts, permission cannot be granted to said Mr.G.Kumar.
10. In view of this amendment, the writ petition has to be allowed. The respondents are restrained to give permission from removing the soil, clay, savudu and gravel in Survey No.274, Velliyur Village, Tiruvallur Taluk and District. No Costs.
[S.M.K., J.] [S.P., J.] 22.02.2019 Index: Yes Internet: Yes dm Note: Issue order copy on 11.03.2019 To
1.The District Collector, Tiruvallur, Tiruvallur District.
2.The Revenue Divisional Officer, Tiruvallur Taluk, Tiruvallur District.
3.The Tahsildar, Tiruvallur Taluk, Tiruvallur District.
4.The Assistant Director (Mines), Tiruvallur District.
5.The Executive Engineer, Water Resources (Tank), Public Works Department, http://www.judis.nic.in Tiruvallur District.
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S.MANIKUMAR, J.
AND SUBRAMONIUM PRASAD, J.
dm W.P.No.18872 of 2017 22.02.2019 http://www.judis.nic.in