Madras High Court
K.Manthesh Kuttan vs The State Of Tamil Nadu on 3 August, 2012
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 3.8.2012
CORAM:
THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
Writ Petitions No.28406 of 2011 with M.P.Nos.1/2011; 2/2011 & 1/2012;
28447 of 2011 with M.P.No.1/2011 & 1/2012
and
M.P.Nos.1 & 2/2012 in W.P.No.9860 of 2008
W.P.No.28406 of 2011 :
--------------------
1.K.Manthesh Kuttan
2.S.Senthil Kumar
3.E.A.Ameerudheen
4.E.A.Naseerudeen
5.V.Balachandran
6.K.Manikandan
7.A.Sundaraj
8.A.Senthilkumar
9.N.Sukesh ... Petitioners
Vs.
1.The State of Tamil Nadu,
rep.by its Secretary to Government,
Department of Agriculture and Production,
Fort St.George,
Chennai-600009.
2.The District Collector,
Nilgiri District,
Nilgiri-643001.
3.The Revenue Divisional Officer,
Coonoor-Gudalur Taluk,
Nilgiri District-643001.
4. In Defence of Environment and Animals,
by its Managing Trustee, Elephant G.Rajendran,
No.24/51, South Usman Road,
T.Nagar, Chennai-600017 ... Respondents
(fourth respondent brought on record as per the
order passed today in this order in M.P.No.1/2012 in
W.P.No.28406/2011)
W.P.No.28447 of 2011 :
--------------------
Nilgiri Mavatta JCB & Poclain Owners Association,
rep.by its Secretary,
Denadu Combai,
1/99, Thuneri Post,
Deynadu Combai,
Nilgiri District-643206. ... Petitioner
Vs.
1.The State of Tamil Nadu,
rep.by its Secretary to Government,
Department of Agriculture and Production,
Fort St.George,
Chennai-600009.
2.The District Collector,
Nilgiri District,
Nilgiri-643001.
3.The Revenue Divisional Officer,
Coonoor-Gudalur Taluk,
Nilgiri District-643001.
4.In Defence of Environment and Animals,
by its Managing Trustee, Elephant G.Rajendran,
No.24/51, South Usman Road,
T.Nagar, Chennai-600017 ... Respondents
(fourth respondent brought on record as per the
order passed today in this order in M.P.No.1/2012 in
W.P.No.28447/2011)
M.P.No.1 of 2012 in W.P.9860/2008 :
---------------------------------
Nilagiri Mavatta JCB & Poclain Owners Association,
rep.by its Secretary,
Denadu Combai,
1/99, Thuneri Post,
Deynadu Combai,
Nilgiri District-643206 ... Petitioner
Vs.
1.In Defence of Environment and Animals
by its Managing Trustee
Elephant G.Rajendran,
No.24/51, South Usman Road,
T.Nagar, Chennai-600017.
2.The District Collector,
Ooty, The Nilgiris District.
3.The District Forest Officer,
Ooty, The Nilgiris District.
4.Deputy Director,
Geology and Mines,
Appleby Road, Coonoor,
Nilgiris District.
5.The Regional Transport Officer,
Ooty, The Nilgiris District.
6.The Superintendent of Police,
Ooty, The Nilgiris District. ... Respondents
M.P.No.2 of 2012 in W.P.No.9860/2008 :
------------------------------------
1.K.Manthesh Kuttan
2.S.Senthil Kumar
3.E.A.Ameerudheen
4.E.A.Naseerudeen
5.V.Balachandran
6.K.Manikandan
7.A.Sundaraj
8.A.Senthilkumar
9.N.Sukesh ... Petitioners
Vs.
1.In Defence of Environment and Animals
by its Managing Trustee
Elephant G.Rajendran,
No.24/51, South Usman Road,
T.Nagar, Chennai-600017.
2.The District Collector,
Ooty, The Nilgiris District.
3.The District Forest Officer,
Ooty, The Nilgiris District.
4.Deputy Director,
Geology and Mines,
Appleby Road, Coonoor,
Nilgiris District.
5.The Regional Transport Officer,
Ooty, The Nilgiris District.
6.The Superintendent of Police,
Ooty, The Nilgiris District. ... Respondents
* * *
W.P.Nos.28406 of 2011 and 28447 of 2011 have been filed praying to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the proceedings having Ref.No.Na.Ka.T5.No.018976/2011, dated 24.10.2011 issued by the 2nd respondent and quash the same and consequently direct the respondents to issue guidelines regulating the use/movement of JCB, Tipper Lorries and Pocline in Nilgiris District and permit the petitioners to use the JCB, Tipper Lorries and Pocline for legitimate agricultural operations in accordance with the said guidelines.
M.P.No.1 of 2012 in W.P.No.28406 of 2011 and M.P.No.1 of 2012 in W.P.No.28447 of 2011 have been filed by the respective writ petitioners, praying to implead the proposed respondent therein viz. In Defence of Environment and Animals, by its Managing Trustee, Elephant G.Rajendran, No.24/51, South Usman Road, T.Nagar, Chennai-600017 as fourth respondent in the respective writ petitions.
M.P.Nos.1 and 2 of 2012 in W.P.No.9860 of 2008 have been filed praying to grant leave to the petitioners therein to file Miscellaneous Petition before this Court in W.P.No.9860 of 2008, seeking clarification of para No.10 of the order dated 18.11.2009 in W.P.No.9860 of 2008.
* * *
For petitioners in Wps.28406
and 28407/11 and also for : Mrs.Nalini Chidambaram for M/s.C.Uma
petitioners in M.P.Nos.1 and
2 of 2012 in WP.9860/2008
For respondents in WPs. and : Mr.S.T.S.Moorthy and
R.2 to R.6 in M.P.Nos.1 and : Mrs.A.Srijayanthy,
2 of 2012 in WP.9860/2008 : Spl.Govt.Pleaders
For R.1 in M.P.Nos.1 and 2
of 2012 in WP.9860/2008
and for R.4 in : Mr.Elephant G.Rajendran
W.P.Nos.28406 and 28447/11
* * *
COMMON ORDER
ELIPE DHARMA RAO, J.
Interpretation of the order passed by a Division Bench of this Court in W.P.No.9860 of 2008, dated 18.11.2009 is the subject matter in these matters.
2. To better understand the present lis, short background of the cases need to be explained.
3. It all started in the year 2008, when an organisation called 'In Defence of Environment and Animals' (Respondent No.1 in M.P.Nos.1 and 2/2012 in WP.9860 of 2008 and impleaded party in both the above writ petitions) has filed a probono publico in W.P.No.9860 of 2008 against the district administration of The Nilgiris District (respondents 2 to 6 in M.P.Nos.1 and 2 of 2012 in WP.9860 of 2008), for a Writ of Mandamus directing the respondents therein not to allow any mining and quarry operations anywhere in the hills of Nilgiris. It was alleged in the said case that illegal quarrying and mining activities are rampant in the district of Nilgiris for which explosives are being used, driving the animals in the area to find their way into the residential areas and due to flying rock pieces as a result of blasting, some animals also died.
4. In the said matter, series of directions were issued by a Division Bench of this Court on various dates, towards protecting the flora and fauna of the area and also to curb the illegal mining. Nilagiri Mavatta JCB & Poclain Owners Association (the petitioner in W.P.No.28447 of 2011 and M.P.No.1 of 2012 in W.P.9860/2008) have filed M.P.No.5 of 2008 in the said writ petition for impleading themselves as parties to the said writ petition on the ground that in view of one or other observation of this Court in W.P.No.9860 of 2008, the respondents in the said writ petition are disturbing the members of their association, who are having JCB, tipper lorries, pocline for usage of the same only for carrying on construction and agricultural activities. Taking up the said impleadment petition along with the main Writ Petition, on 18.11.2009, the Division Bench of this Court has disposed of the said writ petition in the following manner:
"10. We have heard the learned counsel for the parties and perused the records. We may only mention that this Court was of the view that no illegal quarry should be made in the Nilgiris area. In fact, for the purpose of maintaining its forest and ecology, it is desirable that no mining is made in the area, much less illegal mining. This Court has not made any observations against one or other individual, either officer or organisation, but it cannot be accepted that JCB, tipper lorries or Pocline are used for agricultural activities, that too in a hilly region like Nilgiris. The buildings may be constructed or demolition may be made, but it should be done only with the permission of the competent authority like Corporation or local Panchayat or Collector. If permission is granted for construction of a building or demolition of a building, in such case, one may use heavy vehicle like JCB, tipper lorries or Pocline on permission, but otherwise, we find no ground made out as to why JCB, tipper lorries and Pocline should be used for agriculture or any other purpose. If the respondents intends to check illegal mining activities and for that if they intend to regulate the movement of JCB, tipper lorries, Pocline and other heavy vehicles, we leave it open for the competent authorities, who may do so in the interest of administration and protection of ecology.
11. So far as illegal mining is concerned, the authorities like the Administrative Officer, Tahsildar, officer-in-charge of the Department of Ecology and Mining at the District Level and the police officer in-charge of the area concerned are directed to be vigilant and to ensure that the Government guideline contained in G.O.Ms.No.135 dated 13th Nov., 2009, issued from the Industries (MMA.1) Department is followed and no illegal quarry be made in the Nilgiris; in case such illegal quarry is found in one or other area, the competent authority may hold such officer responsible for not taking proper action against the offenders and the District Collector, Nilgiris, will initiate departmental action against such erring officers in view of the Government decision as referred to above.
So far as the Government officials against whom CB CID has already ordered to take disciplinary action, whose names have already been brought to the notice of this Court, if no such action has been taken against any of such officer/employee by one or other department or the State Government, then in that case, they will take appropriate disciplinary action against such officer/employee within a period of one month from the date of receipt/production of a copy of this order.
The petitioner is also given liberty to bring to the notice of the District Collector any illegal quarrying, if any made at present or also in future in the Nilgiris.
The writ petition stands disposed of with the aforesaid observations and directions. Consequently, connected miscellaneous petitions are closed. But there shall be no order as to costs."
5. From the materials placed on record it is seen that after the above order of this Court, contending that the official respondents are preventing the usage of JCB, tipper lorries and Pocline and other heavy vehicles in Nilgiri District, even for using the machinery for construction and agricultural activities, the Nilgiri Potato and Vegetable Growers Association filed a Public Interest Litigation in W.P.No.11397 of 2011 before this Court, praying for issuance of a Writ of Mandamus directing the respondents therein to permit the farmers residing in the Nilgiri District to avail use of their machinery devices like the pocline or JCB earth movers for exclusively agricultural purposes in their existing agricultural fields. The said writ petition was dismissed by the Honourable First Bench of this Court on 6.6.2011 in the following manner:
"In our view, the relief sought for is wholly misconceived and misuse of forum of public interest litigation. Hence, this writ petition is dismissed with costs of Rs.10,000/= to be deposited with the Tamil Nadu State Legal Services Authority, Chennai-104. Consequently, miscellaneous petition is closed."
6. Thereafter, the present writ petitioners have come forward to file these two writ petitions on 7.12.2011. They have also filed M.P.Nos.1 and 2 of 2012 in W.P.No.9860 of 2008, on 3.1.2012, seeking Leave of this Court to file Miscellaneous Petitions seeking clarification of Para No.10 of the order dated 18.11.2009 made in W.P.No.9860 of 2008 (extracted supra).
7. The case of the writ petitioners is that the order passed by this Court in W.P.No.9860 of 2008 is being mis-interpreted by the official respondents and have banned the use of JCB, tipper lorries and Pocline in Nilgiris district and under the impugned orders, the permission sought for by the petitioners for usage of JCB, tipper lorries and Pocline in Nilgiris District for agricultural and construction purposes was rejected by the District Collector in an illegal manner.
8. As already stated above, these writ petitioners have also filed two miscellaneous petitions, praying to grant Leave for them to file miscellaneous petitions seeking clarification of the order passed by this Court in W.P.No.9860 of 2008. Along with the writ petitions, the writ petitioners have also filed separate miscellaneous petitions for impleading 'In Defence of Environment and Animals, by its Managing Trustee, Elephant G.Rajendran, No.24/51, South Usman Road, T.Nagar, Chennai-600017' as fourth respondent in the respective writ petitions on the ground that the said organisation is a necessary party to the proceedings.
9. Since, as already stated above, these matters involve interpretation of the order passed by this Court in W.P.No.9860 of 2008, dated 18.11.2009 and the proposed party is nothing but the petitioner in the said W.P.No.9860 of 2008, we allow M.P.No.1 of 2012 in W.P.No.28406 of 2011 and M.P.No.1 of 2012 in W.P.No.28447 of 2011, thus bringing 'In Defence of Environment and Animals, by its Managing Trustee, Elephant G.Rajendran, No.24/51, South Usman Road, T.Nagar, Chennai-600017' as fourth respondent in both the writ petitions.
10. Mrs.Nalini Chidambaram, learned senior counsel appearing for the writ petitioners would strenuously argue that though there is no specific direction by this Court, completely banning the usage of JCB, tipper lorries or pocline machines in the district of Nilgiris, the respondents, in their undesired over anxiety are implementing complete ban on the usage of JCB, tipper lorries and pocline machines, without regard to the ground realities that such machinery are very much needed in agricultural and construction works.
11. On the contrary, Mr.S.T.S.Moorthy and Mrs.A.Srijayanthy, learned Special Government Pleaders appearing on behalf of the official respondents and Mr.Elephant G.Rajendran, learned counsel appearing for the impleaded fourth respondent would strenuously argue that both the writ petitions are misconceived and are liable to be dismissed at the threshold for the simple reason that the authorities are strictly complying with the order passed by this Court in W.P.No.9860 of 2008, dated 18.11.2009. It is the common argument of all the respondents that the order passed by this Court in W.P.No.9860 of 2008, dated 18.11.2009, having not been challenged by the writ petitioners, even though the Nilgiri Mavatta JCB & Poclain Owners Association/petitioner in W.P.No.28447 of 2011, was a party to the said proceedings (since they have filed an impleadment petition), any order or direction issued in these matters would amount to reading between the lines. They would file separate and detailed counter affidavits, denying all the averments of the affidavits of the writ petitioners.
12. It is the strong argument of the petitioners that for agricultural and construction purposes, they should be permitted to use JCB, tipper lorries and Pocline in Nilgiris District, while on the part of the district administration, it has been maintained that there is no need to use the JCB and other such machineries for agricultural activities in Nilgiris District. In the detailed counter affidavit, the District Collector has mentioned that usage of heavy machines in the agriculture field in steep slopes not only trigger severe soil erosion and landslides thereby deteriorating the fragile eco-system and forests and the farmers can very well use tractors for agriculture use. It has further been submitted that contribution of JCB/pocline to agriculture in Nilgiris only limited to plowing the land; that Nilgiris soil has the depth of ten metres and any massive activity in the top and middle reaches of the hill will definitely result in dislocation and disturbances in the lower reaches and if the terraces are altered invariably without considering the soil test to ascertain the stability of the soil and non-adoption of the application of scientific suggestions, the steams and gulley starts from the upper reach will form a new course of water flow which ultimately result in flooding in the agriculture land as well as the habitations located in lower reaches and it poses danger to the property and life. It has further been submitted that majority of the tea fields are planted with cornel tea and some areas are planted with old china tea bushes and some other varieties and therefore, in order to have quality tea production, the old tea bushes are to be uprooted and new plantation has to be made for which the JCB's could be used and as a part of this grants and subsidies are allowed for purpose of JCB's; that the roots of china jar tea bushes are deep and usage of JCB for uprooting the tea bushes will be economical but it will lead to loosening the soil to the very depth making the land susceptible to landslides and serious soil runoff; that area under the old tea bushes is very minimal; that uprooting tea bushes is one time process and that too in the particular region and these kinds of activities may be taken up by utilizing the other soft machineries such as small tillers tractors and motor operated saws etc. and therefore, there is no need for operating JCB/pocline machines for uprooting the tea bushes. It has, however, been made clear by the District Collector in his counter that expeditious action is being taken by the district administration to give permission for usage of JCB/Pocline machines for construction related activities and only the request for JCB operations in agriculture field are not allowed with an objective to stop heavy JCB machines in steep terrain and to protect stable hills and landscape.
13. In this scenario, we have to see as to what exactly has been the direction of this Court in W.P.No.9860 of 2008, dated 18.11.2009 and is there any mis-interpretation of the said order of this Court or over-reach on the part of the district administration of the Nilgiris District.
14. As could be seen from the order of this Court in W.P.No.9860 of 2008, dated 18.11.2009, while passing the said order, this Court has also taken into consideration the plea urged by the petitioner in W.P.No.28447 of 2011, who was also a party by way of impleadment petition in W.P.No.9860 of 2008. In fact, referring to the said claim of the petitioner that JCBs and other such machineries are very much necessary for conducting agricultural operations in the district of Nilgiris, this Court has answered the said plea in negative as follows:
."....This Court has not made any observations against one or other individual, either officer or organisation, but it cannot be accepted that JCB, tipper lorries or Pocline are used for agricultural activities, that too in a hilly region like Nilgiris.... If permission is granted for construction of a building or demolition of a building, in such case, one may use heavy vehicle like JCB, tipper lorries or Pocline on permission, but otherwise, we find no ground made out as to why JCB, tipper lorries and Pocline should be used for agriculture or any other purpose."
15. There is no ambiguity in the order passed by this Court, so as to seek 'clarification' by the petitioners. Further, the plea of the present petitioner (i.e. petitioner in W.P.No.28447 of 2011) having been answered in the negative, he cannot be permitted to file either a petition for 'clairification' or a fresh writ petition on the same plea, without challenging the order in W.P.No.9860 of 2008, dated 18.11.2009. In fact, when a similar writ petition has been filed by the Nilgiris Potato and Vegetable Growers Association in W.P.No.11397 of 2011, the same was dismissed as wholly misconceived and misuse of forum of public interest litigation by the Honourable First Bench of this Court. The same reasoning will apply to the petitioner in W.P.No.28406 of 2011 also.
16. In our endeavour to find out as to whether really there is any need for usage of JCBs, tipper lorries and poclines for agricultural purposes in an area like Nilgiris, we have gone through the entire materials placed on record.
17. It is well within every prudent man's knowledge that Nilgiris houses one of the most unique ecosystem in our country and due to various reasons, particularly due to the illegal activities of greedy persons like illegal mining and commercial man's intrusion into the lives of flora and fauna of the area, the ecosystem of the area is in danger. This is one of the reasons why the Honourable Apex Court in a recent judgment banned tourism in core areas of tiger reserve, including Mudumalai Tiger Reserve. This shows the need and necessity to protect the ecosystem of the region standing as a beacon light. The drastic affects of JCBs, if used in agriculture, are depicted very clearly in the counter affidavit filed by the District Collector. When digging and ploughing for agricultural purposes can very well be done manually, without, in any manner, causing danger to the ecosystem, we are unable to appreciate the reasons offered on the part of the petitioners that since they are unable to get manpower for agricultural purposes, they want to use JCBs, tipper lorries and poclines for agricultural purposes. We have no hesitation to put on record that use of such machineries will only trigger landslidings in the area, endangering the flora and fauna of the area. Even otherwise, it is the settled law that the larger interest of the society should outweigh the interest/benefit of a smaller section of the society for the common good of one and all.
18. Only with a view to protect the ecosystem in the area and strictly following and complying with the order of this Court, the District Collector has passed the impugned orders, rejecting permission for usage of JCBs, tipper lorries and poclines for agricultural purposes. We find no ground either to 'clarify' the order passed in W.P.No.9860 of 2008, dated 18.11.2009 or to pass any other order or direction, prayed for by the writ petitioners in these writ petitions, since the district administration of Nilgiris has correctly understood the order of this Court and is carrying on the directions issued by this Court towards protecting the flora and fauna of the region and any intervention into the same would only amount to watering down the directions issued in W.P.No.9860 of 2008, dated 18.11.2009, which has attained finality since not challenged by any of the parties.
For all the above reasons, we have no hesitation to hold that there is no merit in any of the contentions raised on the part of the writ petitions. Accordingly, both the writ petitions and also the leave applications are dismissed. Connected M.Ps.are closed. No costs.
Rao To
1.The State of Tamil Nadu, rep.by its Secretary to Government, Department of Agriculture and Production, Fort St.George, Chennai-600009.
2.The District Collector, Nilgiri District, Nilgiri-643001.
3.The Revenue Divisional Officer, Coonoor-Gudalur Taluk, Nilgiri District-643001.
4.The District Forest Officer, Ooty, The Nilgiris District.
5.Deputy Director, Geology and Mines, Appleby Road, Coonoor, Nilgiris District.
6.The Regional Transport Officer, Ooty, The Nilgiris District.
7.The Superintendent of Police, Ooty, The Nilgiris District