Madras High Court
A.Arumugam vs The State Of Tamil Nadu on 17 December, 2021
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.No.36962 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 10.12.2021
PRONOUNCED ON : 17.12.2021
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.No.36962 of 2016
A.Arumugam ... Petitioner
-Vs-
1. The State of Tamil Nadu,
Represented by its Principal Secretary to Government,
Energy Department,
Secretariat,
Chennai - 600 009.
2. The Chairman,
Tamil Nadu Electricity Board / TANGEDCO,
Anna Salai,
Chennai - 600 002.
3. The Chief Engineer,
Personnel,
Tamil Nadu Electricity Board / TANGEDCO,
Anna Salai,
Chennai - 600 002.
Page 1 of 16
https://www.mhc.tn.gov.in/judis
W.P.No.36962 of 2016
4. The Chief Engineer,
Mettur Thermal Power Project - II,
Mettur Dam - 636 406.
Salem District.
5. The District Collector,
Salem District,
Salem.
6. The Deputy Collector /
Revenue Divisional Officer,
Mettur Revenue Division,
Mettur Dam,
Salem District.
7. The Tashildar,
Mettur Taluk,
Mettur Dam,
Salem District. ... Respondents
Prayer :- Writ Petition filed under Article 226 of the Constitution of
India praying for the issuance of a Writ of Certiorarified Mandamus,
calling for the records of the impugned order passed by the fourth
respondent vide Letter No.Tha.Po/Me.A.Mi.Ni.-
II/Me.Po/C/Che.Po/Me.A.Mi.Thi/U.Ko.VIII/Ko.Thani/A.No.111/15 dated
01.10.2015 quash the same, consequently direct the respondents 1 to 4 to
acquire the petitioner's land in S.No.386/2 and 386/3 total an extent of
5.3 acres in the revenue village of P.N.Patty, Mettur Taluk, Salem
District based on the recommendations of the respondents 5 and 7 dated
21.05.2015 and 19.01.2015 respectively.
Page 2 of 16
https://www.mhc.tn.gov.in/judis
W.P.No.36962 of 2016
For Petitioner : Mr.M.R.Jyothimanian
For R1, R3 to R7 : Mr.M.Muthusamy
Government Advocate.
For R2 : Mr.Anand Gopalan for
M/s.T.S.Gopalan and Co.
ORDER
This Writ Petition has been filed for the issuance of Writ of Certiorarified Mandamus, calling for the records of the impugned order passed by the fourth respondent vide LetterNo.Tha.Po/Me.A.Mi.Ni.- II/Me.Po/C/Che.Po/Me.A.Mi.Thi/U.Ko.VIII/Ko.Thani/A.No.111/15, dated 01.10.2015 quash the same, consequently direct the respondents 1 to 4 to acquire the petitioner's land in S.No.386/2 and 386/3 totally to an extent of 5.3 acres in the revenue village of P.N.Patty, Mettur Taluk, Salem District based on the recommendations of the respondents 5 and 7 dated 21.05.2015 and 19.01.2015 respectively.
2. The petitioner owned agricultural land comprised in Survey No.386/2 and 386/3, totally to an extent of 5.3 acres situated at P.N.Patty, Mettur Taluk, Salem District, which is adjoin to the Mettur Page 3 of 16 https://www.mhc.tn.gov.in/judis W.P.No.36962 of 2016 Thermal Power Project - II Plant. The petitioner is unable to cultivate the said land for the reason that 4 Silos are in operation adjoin to his land and causes hindrances to his cultivation. In the year 2007, the respondents 1 to 4 had extended the Mettur Thermal Power Project i.e. 1*600 Mega Watt stage -II and therefore there are 4 silos installed in S.No.387 in P.N.Patti Village, Mettur Taluk, Salem District. Therefore, the fly ashes are spreading over the subject land and had emanated in the mango trees which are cultivated by the petitioner. Therefore, the petitioner sustained heavy loss and the subject land is not in use for any cultivation for the past 10 years. Therefore, the petitioner made representation on 15.05.2007, requesting the respondents to acquire the subject land for the Thermal Power Project on payment of compensation and also to provide employment to any one of his family members.
3. On receipt of the same, the fifth respondent forwarded the said representation to the sixth respondent for consideration. The sixth respondent directed the seventh respondent to conduct inspection and submit a report. The seventh respondent conducted inspection on 11.11.2014 and submitted report on 19.01.2015 and 23.01.2015. In Page 4 of 16 https://www.mhc.tn.gov.in/judis W.P.No.36962 of 2016 turn, the fifth respondent also recommended to the fourth respondent by the communication dated 21.05.2015. Thereafter, the fourth respondent did not consider the said representation and no order has been passed. Therefore, the petitioner filed writ petition before this Court in W.P.No.28732 of 2015 for direction. This Court by an order dated 11.09.2015, disposed of the writ petition thereby, directed the fourth respondent to take decision with regard to the recommendation of the fifth respondent, dated 21.05.2015. However, the petitioner's claim was rejected by the fourth respondent by the impugned order dated 01.10.2015.
4. The learned counsel for the petitioner submitted that the action of the fourth respondent is violation of property right guaranteed under 300A of the Constitution of India and the right of the petitioner's livelihood guaranteed under Article 21 of the Constitution of India. On seeing the report of the respondents 6 and 7 herein, the fly ash coming out from the silos heavily caused hindrances to the agricultural activities in the subject land. The reasons stated by the fourth respondent for rejecting the claim of the petitioner is that the cultivation would not be Page 5 of 16 https://www.mhc.tn.gov.in/judis W.P.No.36962 of 2016 affected and also safety measures were taken to control the fly-ashes emanated in the trees. All the reasons are totally illegal and against the report submitted by the Revenue officials. He further submitted that two sides of the petitioner's subject land are surrounded by Mettur Thermal Power Project – II, one side is surrounded by hill and another side is adjacent to water canal. Therefore, there is no access to the subject land and the only way to enter the subject land is through sloppy mountain or otherwise through the Thermal Power Station. Therefore, it is impossible for the petitioner to cultivate the subject land and as such the fourth respondent ought to have acquired the subject land with adequate compensation. He also relied upon the Advocate Commissioner's Inspection report filed by the Standing Counsel for the fourth respondent in W.P.No.28732 of 2015 and photographs which were taken from the subject land.
5. Per contra, the fourth respondent filed counter and submitted that, in thermal power plants, coal is used to generate electricity. After burning, coal is converted into ash. The ash generated below the furnace of the thermal plant, called the "Bottom Ash" (Wet Ash). The fly ash is Page 6 of 16 https://www.mhc.tn.gov.in/judis W.P.No.36962 of 2016 collected through a conveyor which is completely enclosed and transported to silos. The silos are structures capable of storing ashes with high temperature. However, the petitioner alleged that the subject land has been affected owing to the activities being carried out adjacent to the subject land, that the fly ash dust is collected on the agricultural crops. Though, the fourth respondent is amenable to the writ jurisdiction given the fact that the right sought to be enforced is one of a private right and not any public duty cast in the fourth respondent. Therefore, the writ petition is not maintainable and it is liable to be dismissed.
6. The writ of mandamus can be issued only to enforce a right conferred in the Constitution of India. The hindrances caused to the petitioner's land in any event, doesn't amount to infringement of any fundamental right or a duty cast upon the fourth respondent to the general public. Therefore, the writ of mandamus can be issued only to compel performance of a public duty which may be administrative or statutory in nature. Hence, the direction sought for by the petitioner cannot be issued to acquire the subject property belong to the petitioner. Further revealed that the pathway or access to the subject land of the Page 7 of 16 https://www.mhc.tn.gov.in/judis W.P.No.36962 of 2016 petitioner remains unaffected even as on date. Therefore, the claim of the petitioner that the pathway or access to his lands is not at all affected. In fact, the report submitted by the Revenue officials recommended only for payment of compensation for mango trees. The Revenue officials never recommended for the acquisition of the subject land.
7. The learned counsel for the fourth respondent also produced latest photographs which were taken in the subject lands and CD was also produced consisting videographs with regard to the subject property.
8. Heard Mr.M.R.Jyothimanian, learned counsel appearing for the petitioner, Mr.M.Muthusamy, learned Government Advocate appearing for the respondents 1, 3 to 7 and Mr.Anand Gopalan, learned counsel appearing for the second respondent.
9. This Court have seen the photographs and also the videographs produced by the petitioner as well as the fourth respondent. Page 8 of 16 https://www.mhc.tn.gov.in/judis W.P.No.36962 of 2016
10. A perusal of the Inspection Report submitted by the Standing Counsel for the fourth respondent in W.P.No.28732 of 2015 revealed that the petitioner's land comprised in Survey No.386/2 and 386/3, ad- measuring 5.3 acres is situated adjacent to the fly ash silos. The fourth respondent had constructed a compound wall dividing the fly ash silos and the petitioner's subject land. The subject land is situated in the center part of the fourth respondent's Mettur Thermal Power Project - II covering 3 sides of the petitioner's land and other side is a sloppy mountain which is only access to the petitioner's subject land which makes the cultivation and other plantations in the petitioner's land. The fly ash which comes out of the silos is getting accumulated in the front portion of the flowers and leaves of the mango trees near the compound wall and the rear portion of the tree covered with ash is lesser when compared to ash in the front portion. Few trees which are away from the silos are not accumulated by the fly ash.
11. Whereas, the Advocate Commissioner's Report revealed as follows.
Page 9 of 16 https://www.mhc.tn.gov.in/judis W.P.No.36962 of 2016 "i) It was found that the petitioner's land in S.No.386/2 and S.No.386/3 measuring to an extent of 5.3 acres is situated adjacent to the fly ash silos.
ii) I found there are 4 silos installed in the S.No.387 of P.N.Patti Village, Mettur Taluk, Salem District which are adjoining to the petitioner's land. The Compound wall was constructed dividing the fly ash silo and the petitioner's land.
iii) The Petitioner's land situated at western side of silos and I found the mango trees in the petitioner's land which numbers to around 52 trees.
iv) Out of 5.3 acres, the Mango trees are planted in 1½ acres and the remaining area is kept vacant without any cultivation.
v) At the time of inspection the silos are in operation and the fly ash is emanated slightly from the 2 silos and the fly ash spreading in the air lightly.
vi) At the time of inspection while taking photos which are furnished, it is seen that the fly ash through air was already existing on the front side leaves of 7 mango trees, which are adjacent to the compound wall and other sides of the above said 7 trees are in a good condition and no fly ash was found.
vi) I found that fly ash already exists on the front side leaves of 7 mango trees, which are adjacent to the compound wall and rear, inner and outer parts of the above said 7 mango trees are well and good.
vi) There are 40 to 42 mango trees are planted nearby the compound wall, which is adjacent to the fly ash silos. And also there are nearby 10 other mango trees are planted away from the silos that trees not accumulated by the fly ash and they are in a good condition.
Page 10 of 16 https://www.mhc.tn.gov.in/judis W.P.No.36962 of 2016
vii) It is seen that the fly ash which comes out of the silos is gradually getting accumulated in the front portion of few leaves of the 7 mango trees only nearby the compound wall and rear, inner and outer parts of the above said 7 mango trees are well and good.
vii) I had not found fly ash on the mango trees planted in the middle portion and inside of the mango trees. Except the above said 7 mango trees other trees are looking greenly and I found flowers in two mango trees in the middle portion of the petitioner's land. Other portion of the land kept by vacant without cultivating any crops and land is fit for cultivation."
12. As rightly pointed by the learned counsel for the fourth respondent that the Advocate Commissioner's report as well as the Standing Counsel's report were filed in the year 2016. The latest photographs and videographs revealed that the 4 silos erected by the fourth respondent in the land comprised in Survey No.387, is adjacent to the subject land. However, no fly ash is spread over the crops or any plantations. The fourth respondent have taken safety measures with regard to the fly ash by erecting sheet for western side of silo bottom to avoid the ash deposition in the nearby areas. Accordingly, the permission was accorded and tender called for to erect the sheet to cover silos bottom.
Page 11 of 16 https://www.mhc.tn.gov.in/judis W.P.No.36962 of 2016
13. It is also seen from the photographs all the adjacent lands are fully cultivated by paddy and other crops. If at all any agricultural crops are damaged due to fly ash, which are planted by the petitioner or any other adjacent owners, they are entitled for damages.
14. Further, the fly ash level is under the control within the limits fixed by the Tamil Nadu Pollution Control Board. The construction of the Mettur Thermal Power Station, had already completed and it is running in power generation of full Mega Watts. Therefore, the fourth respondent does not require any more land for any construction. Insofar as the pathway or access to the subject land is concerned, one side of the land is surrounded with sloppy hill. The petitioner can very well reach the subject land through the sloppy hill area. It is the access for all the adjacent land owners. As such, the pathway of the subject land of the petitioner remains unaffected as per the report of the Revenue officials.
15. It is also seen from the Revenue records, including by way of payment to the Government for having cultivated the subject land all along even upto the year 2016. Whereas, the petitioner alleged that he Page 12 of 16 https://www.mhc.tn.gov.in/judis W.P.No.36962 of 2016 could not cultivate the subject land from the year 2007. It is pertinent to note here that the establishment work of thermal station was commenced in the year 2008 and the station was put to trial run only in the year 2012. In fact, the silos were installed and put into beneficial operation only from 14.08.2012. Therefore, there is absolutely no possibility of emanation of fly ash from the year 2007.
16. That apart, the subject land was leased out to one M/s. BGRESL, who was awarded with the EPC contract to establish the Mettur Thermal Power Station -II for storing yard and stock yard of BGRESL. Therefore, the petitioner would have profited as lease rent from the year 2008 to 2013. That apart, if any damages caused to the agricultural crops, it is disputed question of fact and it cannot be decided under Article 226 of Constitution of India.
17. As stated supra, the petitioner can very well seek for damages before the Civil Court, if any damages is caused to his crops due to fourth respondent's activities.
Page 13 of 16 https://www.mhc.tn.gov.in/judis W.P.No.36962 of 2016
18. As rightly pointed by the learned counsel for the fourth respondent, the writ of mandamus, cannot be issued as against the fourth respondent to acquire the subject land. Since, it can be issued only to compel performance of a public duty which may be administrative or statutory in nature.
19. Therefore, the fourth respondent rightly rejected the claim of the petitioner and this Court finds no infirmity or illegality in the order passed by the fourth respondent and the writ petition is devoid of merits and is liable to be dismissed. Accordingly, this writ petition stands dismissed. There shall be no order as to costs.
17.12.2021 ½ Internet : Yes Index : Yes/No Speaking order/Non-speaking order mn Page 14 of 16 https://www.mhc.tn.gov.in/judis W.P.No.36962 of 2016 To
1. The Principal Secretary to Government, The State of Tamil Nadu, Energy Department, Secretariat, Chennai - 600 009.
2. The Chairman, Tamil Nadu Electricity Board / TANGEDCO, Anna Salai, Chennai - 600 002.
3. The Chief Engineer, Personnel, Tamil Nadu Electricity Board / TANGEDCO, Anna Salai, Chennai - 600 002.
4. The Chief Engineer, Mettur Thermal Power Project - II, Mettur Dam - 636 406.
Salem District.
5. The District Collector, Salem District, Salem.
6. The Deputy Collector / Revenue Divisional Officer, Mettur Revenue Division, Mettur Dam, Salem District.
7. The Tashildar, Mettur Taluk, Mettur Dam, Salem District.
Page 15 of 16 https://www.mhc.tn.gov.in/judis W.P.No.36962 of 2016 G.K.ILANTHIRAIYAN, J.
mn W.P.No.36962 of 2016 17.12.2021 Page 16 of 16 https://www.mhc.tn.gov.in/judis