Madras High Court
V.Nagendran vs Hospital 'Z''). He Would Also Point Out ... on 13 June, 2023
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 30.08.2022
Pronounced on : 13.06.2023
CORAM
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
WP(MD)Nos.13822, 13823 & 13824 of 2022
V.Nagendran ... Petitioner in WP(MD)No.13822 of 2022
M.Baskaran ... Petitioner in WP(MD)No.13823 of 2022
K.Sivan ... Petitioner in WP(MD)No.13824 of 2022
v.
1.The District Collector, Dindigul District.
2.The Assistant Director (Geology & Mining),
Dindigul, Dindigul District.
3.The Revenue Divisional Officer, Dindigul.
4.The Tahsildar, Nilakottai, Dindigul District.
5.The Block Development Officer,
Batlagundu, Dindigul District.
6.The President,
Mallanampatti Village Panchayat,
Nilakottai Taluk, Dindigul District.
7.The Chairman cum Managing Director,
TANGEDCO, 6th Floor,
TANTRANSCO Building,
No.144, Annasalai, Chennai – 600 002.
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8.The Chief Electrical Inspector,
Electrical Licensing Board,
Thiru.Vi.Ka.Industrial Estate,
Guindy, Chennai – 600 032.
9.The Superintending Engineer,
Non Conventional Energy Sources (NCES),
TANGEDCO, No.102, Dhali Road,
Udumalpet – 642 126.
10.The General Manager,
M/s.F.Robin Power Solutions Private Limited,
Chinnupatti Main Road, Reddiapatti Post,
Nilakkottai Taluk, Dindigul District.
11.The Managing Director,
Palani Vijay Cottspin Private Limited,
203, Lakshmipuram, Palani Town,
Dindigul District – 624 601.
12.The Director,
Divyalakshmi Textiles Private Limited,
Kulasekaranallur Village,
Tiruchulli Road, Aruppukottai,
Virudhunagar District – 626 105.
13.The Managing Director,
Sri Jayajothi and Company Private Limited
70, Alagai Nagar, Rajapalayam Town,
Virudhunagar District - 626 117.
14.The Managing Director,
L.S Mills Limited, 351, Madurai Road,
Allinagaram, Theni Town, Theni District – 625 531.
15.The Director,
The Softex Processing Mills, 135A and R21,
SIPCOT Industrial, Growth Centre,
P.V.Palayam, Perundurai, Erode District – 638 052.
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16.The Managing Director,
Akshara Spinning Mills Private Limited,
No.883/1, 2 Pollachi Road, Chinnaputhur Village,
Dharapuram, Tiruppur District.
17.The Managing Director,
R.Robin Polymers Private Limited
No.6/600, Chinnupatti,
Reddiyapatti Post, Batlagundu,
Dindigul District – 624 202. ... Respondents in all cases
(R11 to R17 were impleaded vide court
order dated 14.07.2022)
Prayer in WP(MD)No.13822 of 2022 : Writ Petition filed under Article 226
of the Constitution of India, praying this Court to issue a Writ of Mandamus to
direct the respondents 1 to 9 herein to forthwith remove the Solar Power Plant
installed by the respondents Nos.10 to 17 and other unauthorised constructions
established by the respondents 10 to 17 which is situated within 500 meters
from the government poramboke quarry survey fields in S No.318/2 situated at
Mallanampatti Village, Nilakottai Taluk, Dindigul District by complying with
the proceedings issued by the second respondent in Na.Ka.No.44/2022 (Mines)
dated 31.01.2022 and consequently forbearing the respondents 1 to 9 from
permitting any unauthorised constructions whatsoever within the 500 meters
from the quarry operation areas.
Prayer in WP(MD)No.13823 of 2022 : Writ Petition filed under Article 226
of the Constitution of India, praying this Court to issue a Writ of Mandamus to
direct the respondents 1 to 9 herein to forthwith remove the Solar Power Plant
installed by the respondents Nos.10 to 17 and other unauthorised constructions
established by the respondents 10 to 17 which is situated within 500 meters
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from the government patta quarry survey fields in S Nos.304/3, 304/4, 304/5,
317/2B, 317/2C1, 317/2C2, 317/2C3, 318/1B2, 318/1C1 and 318/1C2 situated
at Mallanampatti Village, Nilakottai Taluk, Dindigul District and consequently
forbearing the respondents 1 to 9 from permitting any unauthorised
constructions whatsoever within the 500 meters from the quarry operation
areas.
Prayer in WP(MD)No.13824 of 2022 : Writ Petition filed under Article 226
of the Constitution of India, praying this Court to issue a Writ of Mandamus to
direct the respondents 1 to 9 herein to forthwith remove the Solar Power Plant
installed by the respondents Nos.10 to 17 and other unauthorised constructions
established by the respondents 10 to 17 which is situated within 500 meters
from the government patta quarry survey fields in S No.302/2(Part) situated at
Mallanampatti Village, Nilakottai Taluk, Dindigul District and consequently
forbearing the respondents 1 to 9 from permitting any unauthorised
constructions whatsoever within the 500 meters from the quarry operation
areas.
(Prayers were amended vide court order dated 14.07.2022)
in all cases : -
For Petitioners : Mr.M.Ravi
For Respondents : Mr.P.Thilakkumar, Government Pleader
for R1 to R4
Mr.V.Om Prakash, Government Advocate
for R5
Mr.S.Deenadhayalan, standing counsel
for R7 to R9
Mr.Ajmal Khan, Senior counsel
for M/s.Ajmal Associates for R10
No appearance for R6, R8, R11, R12,
R13, R14, R15, R16 & R17
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COMMNON ORDER
The relief sought for by the petitioners, namely, Thiru.N.Nagendran,
M.Baskran and Mr.K.Sivan is one and the same. They want this Court to direct
the official respondents to remove the Solar Power plant and other
constructions put up by the tenth respondent within 500 meters of the petition
mentioned quarry sites. The sites mentioned in WP(MD)Nos.13822 of 2022
and WP(MD)No.13824 of 2022 are comprised in government poramboke lands
whereas the quarry sites mentioned in WP(MD)No.13823 (M.Baskaran) are
comprised in Patta lands. While quarry license of Nagendran, petitioner in
WP(MD)No.13822 of 2022 has expired on 01.09.2022, the other applicants
have applied for license and they are at the various stages of considerations.
The apprehension of the petitioners is that since the tenth respondent had
established the solar power plant and the same is located within five hundred
meters of the quarry sites, their applications for grant/renewal would not be
considered. That led to the filing of these writ petitions.
2.The learned counsel for the petitioners reiterated all the contentions set
out in the affidavits filed in support of the writ petitions and called upon this
Court to grant relief as prayed for.
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3.The prime contestant is the tenth respondent. The tenth respondent
had put up the solar power plant and other constructions. The learned Senior
Counsel took me through the stand taken in their counter affidavit. His
contention is that the solar power plant was commissioned as early as on
24.03.2020. It is generating 70 MW of electricity and supplying to
TANGEDCO. According to him, while the quarries were in operation in some
of the survey numbers mentioned by the petitioners, they had been abandoned
quite some time back and there was no impediment for the tenth respondent to
establish the power plant in the year 2020. Thus, as on date, in view of the
installations made by the tenth respondent, if any application for quarry license
is to be considered, it would have to take into account the existence of the solar
power plant. His further contention is that even if there is conflict between the
fundamental rights of the petitioners to conduct business and that of the tenth
respondent, this Court should uphold that right which advances public good
and subserves larger public interest. Since the activities of the tenth
respondent generate green energy whereas the petitioners are engaged in
polluting activities, this Court ought to lean in favour of the tenth respondent.
He relied on the decisions of the Hon'ble Supreme Court reported in (2017) 4
SCC 397 (Asha Ranjan v. State of Bihar) and (1998) 8 SCC 296 (Mr.X vs.
Hospital 'Z''). He would also point out that a sum of Rs.400 crores had already
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been invested in the project and an order for removal of the power plant would
not be in public interest. He pressed for dismissal of these writ petitions. The
stand taken by the official respondents is also in favour of the tenth respondent.
4.I carefully considered the rival contentions and went through the
materials on record. The survey numbers mentioned in WP(MD)No.13823 of
2022 were the subject matter of WP(MD)No.558 of 2015. The following
prayer was sought in the said writ petition :
“This writ petition has been filed by M.Subramanian
seeking Writ of Mandamus forbearing the respondents no.1, 3 and
7 from granting any planning approval of building permission for
any construction / development of any building structure or hut
within 300 meters from the quarrying site of the petitioner in
Survey Nos.304/5, 305/1C, 317/2C3, 318/1C2, 319/2B, 318/2,
319/3, 302/2 and 320/1 of Mallanampatti Village, Nilakottai
Taluk and consequently direct the respondents to prevent any
illegal construction being made within the said safety distant in
light of Rule 36(1-A) of the Tamil Nadu Minor Mineral
Concession Rules, 1959 and the proceedings of the second
respondent in Na.Ka.No.185/2013 (Kanimam) dated 25.04.2013.”
The writ petition was allowed in the following terms :
“5.The 2nd respondent/District Collector, Dindigul District,
also on receipt of the objection from the petitioner issued a direction
to the planning authorities in his proceedings dated 25.04.2013 not
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to accord any direction or approval for any such layout or
construction within 300 meters of quarrying site as mandated under
Rule 36(1-A) (c) of the Tamil Nadu Minor Mineral Concession
Rules, 1959 for the reason that the petitioner has been quarrying in
the aforementioned survey lands. Similarly, the Block Development
Officer, Batlagundu, by his proceedings dated 09.05.2014 directed
the President of Malanampatti Village, 7th respondent herein to issue
a notification to the public that the lands within 300 mts from the
quarrying site ought not to be plotted out and no construction can
be carried out. Besides, the Tahsildar of Nilakottai Taluk, 6th
respondent herein in his proceedings dated 22.05.2014 taking note
of the fact that few real estate business persons are attempting to
sell the land within 300 mts from the quarrying site contrary to the
rules has intimated the Sub Registrar, Nilakottai, in his proceedings
dated 22.05.2014 that no property can be conveyed in respect of the
lands in question without prior permission from the Town and
Country Planning. In view of the aforementioned proceedings
issued by the District Collector, Block Development Officer,
Batlagundu, Tahsildar, Nilakottai Taluk, this Court has no hesitation
to forbear the respondent 1, 3 and 7 from granting planning
approval or building permission for any construction or
development of any building structure or hut within 300 meters
from the quarrying site of the petitioner's land in Survey Nos.304/5,
305/1C, 317/2C3, 318/1C2, 319/2B, 318/2, 319/3, 302/2 and 320/1
situated at Mallanampatti Village, Nilakottai Taluk.”
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It is relevant to note here that relief was sought in respect of patta lands. As
regards the conducting of rough stone quarry in S.No.302/2, Mallanampatti
Village, one Mary had raised objections. She filed WP(MD)No.11527 of 2020.
Vide order dated 14.09.2020 14.09.2020, I had directed the District Collector,
Dindigul to hear her before granting license. However, her objections were
overruled vide proceedings dated 24.05.2021. Subsequently, proceedings were
issued in favour of Thiru.K.Sivan, petitioner in WP(MD)No.13824 of 2022. He
was declared as the successful tenderer in the tender-cum-auction proceedings.
It was put to challenge in WP(MD)No.2495 of 2021. The said writ petition
was dismissed by a learned Judge of this Court in the following terms :
“13.As per Rule 36(1-A) of the Tamil Nadu Minor Mineral
Concession Rules, 1959, no stone quarrying lease can be granted
within 300 metres from any inhabited sites. According to the official
respondents, the stone quarrying operation in S.F.No.302/2 of
Mallanampatti Village had been carrying on for the past 40 years. It
is seen that since some of the owners of the lands situated within 300
metre radius of quarry sites in SF.Nos.304/5, 305/1C, 317/2C3,
318/1C2, 319/2B, 318/2, 319/3, 302/2 and 320/1, at Mallanampatti
Village, Nilakottai Taluk, attempted to plot out their lands and to
create residential ares in violation of Rule 36 of the above Rules, a
quarry lease holder had filed a writ petition before this Court in W.P.
(MD).No.558 of 2015 for a direction not to permit any construction
within 300 metres radius of the said quarry sites and this Court, by
order dated 28.09.2015, has specifically directed the Director of
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Town and Country Planning, Chennai; the Member Secretary,
Dindigul Local Planning Authority, Dindigul District and the
President of Mallampatti Village, Nilakottai Taluk, not to grant any
permission for construction of building or hut within 300 metres of
the abovesaid quarry sites.
17.It is needless to say that river sand was the main raw
material of the construction industry. Now, quarrying of river sand is
banned. The alternative source available to the construction industry
is the crusher of stone. It is stated that the rough stone quarry site in
S.F.No. 302/2 has been in operation for about 40 years and it was the
main source for construction industry in Nilakottai Taluk. Therefore,
the public interest at large must be taken into account. At the same
time, if any resolution passed by the Panchayat in respect of
quarrying of the land within their panchayat and produced, it must be
considered by the official respondents and their grievances must be
redressed possibly. In this case, it is seen that the resolution of
Mallanampatti Panchayat does not relates to quarry site in respect of
the land in Survey No.302/2, Mallanampatti Village. Further,
according to the report of the Block Development Officer, the
villagers have been fighting to stop the above said quarry site for the
past 20 years, but the quarry site stated to be in operation for the past
40 years. In view of the above, this Court is not in a position to
specifically direct the respondents to consider the resolution of the
Panchayat, before taking any decision for leasing out quarry site in
Survey No.302/2.”
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5.Even a mere look at the materials placed by the petitioners would show
that the petition mentioned survey numbers were quarry sites for a very long
period. It is the tenth respondent who has chosen to install the solar power
plant near them. As already noticed, while one of the petitioners is an existing
license holder, the applications submitted by others are pending consideration
at various stages. Whether to grant license to the petitioners to conduct quarry
in a patta land/poramboke land is a matter that is left to the discretion of the
authorities. It is made clear that their applications will not be rejected by citing
the installation of the solar power plant put up by the tenth respondent. The
tenth respondent having voluntarily established the plant near a known quarry
region, cannot now insist that license for conducting quarry operations should
not be issued. The distance Rule set out in the statutory rules cannot be applied
because the direction given by this Court in WP(MD)No.558 of 2015 is holding
the field. A learned Judge of this Court had issued such a direction only for the
reason that the quarry operations should not be hampered or prevented in
future by citing the fact that residential constructions have come up within the
prohibited distance. The solar power plant can be put up in any place. There is
no dearth of such places in India. The tenth respondent having voluntarily
chosen a site near an existing quarry site cannot now be heard to invoke the
distance rule. The petitioners would allege that the solar power plant has been
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put up without getting proper permission. If that be so, it is for the authorities
to take action. I decline to direct removal of the solar power plant put up by
the tenth respondent because the petitioners have no legal right to seek such
relief.
6.With this clarification in favour of the petitioners, the writ petitions are
disposed of. No costs.
13.06.2023
skm
To
1.The District Collector, Dindigul District.
2.The Assistant Director (Geology & Mining), Dindigul, Dindigul District.
3.The Revenue Divisional Officer, Dindigul.
4.The Tahsildar, Nilakottai, Dindigul District.
5.The Block Development Officer, Batlagundu, Dindigul District.
6.The President, Mallanampatti Village Panchayat,
Nilakottai Taluk, Dindigul District.
7.The Chairman cum Managing Director, TANGEDCO, 6th Floor,
TANTRANSCO Building, No.144, Annasalai, Chennai – 600 002.
8.The Chief Electrical Inspector, Electrical Licensing Board,
Thiru.Vi.Ka.Industrial Estate, Guindy, Chennai – 600 032.
9.The Superintending Engineer,
Non Conventional Energy Sources (NCES),
TANGEDCO, No.102, Dhali Road, Udumalpet – 642 126.
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G.R.SWAMINATHAN, J.
skm WP(MD)Nos.13822, 13823 & 13824 of 2022 13.06.2023 https://www.mhc.tn.gov.in/judis 13/13