Madras High Court
S.Sivananthavadivel vs The District Collector on 4 October, 2013
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.10.2013
CORAM:
THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN
Writ Petition No.32045 of 2012
& M.P.Nos.1 of 2012 and 1 and 2 of 2013
S.Sivananthavadivel .. Petitioner
Vs.
1. The District Collector,
Tiruppur, Tiruppur District.
2. The Commissioner,
Vellakovil Municipality,
Vellakovil, Tiruppur District. .. Respondents
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Prayer : Writ Petitions filed under Article 226 of the Constitution of India for the issuance of writ of Certiorarified Mandamus calling for the records of the first respondent vide his proceedings Na.Ka.470/2011/Kanimam, dated 30.10.2012 and quash the same and direct the respondents to grant licence to the petitioner's quarry situated at Survey Nos.1033/A1A, 1033/C1, 1034/A1 and 1035/3, Vellakovil Village, Kangeyam Taluk, Tiruppur District.
* * *
For Petitioner : Mr.N.R.Chandran, Senior Counsel
for M/s.R.Kannan
For Respondents : Mr.V.Jayaprakash Narayanan,
Special Government Pleader for R1
Mr.K.Rajkumar for R2
O R D E R
One Dhanvanth Blue Metals, a partnership firm, was granted lease to quarry rough stone and gravel in the patta lands in Survey F.Nos.1033/A1A, 1033/C1, 1034/A1 and 1035/3 over an extent of 3.57.0 hectares at Vellakovil Village, Kangeyam Taluk, Tiruppur District, for a period of five years from 29.09.2006 to 28.09.2011.
2. The lease was granted in favour of Tmt.P.K.Geetha and Thiru.R.Palanisamy, partners of Dhanvanth Blue Metals. After the expiry of the said lease period, Thiru.K.Sivanandavadivel, applied for the licence before the District Collector, the first respondent, on 25.09.2011.
3. The District Collector called for a report from the Municipal Commissioner, Vellakovil Municipality, the second respondent, as to whether there is any habitation and approved layout falling within the radial distance of 300 metres from the quarrying site.
4. The Municipal Commissioner has not recommended for grant of rough stone quarry in the said area, since a crematorium is being constructed and the same falls within a distance of 100 metres from the site of the quarry.
5. The Chairman and the Members of the Municipality also raised their objection for granting of stone quarry lease in the subject area vide their objection dated 17.03.2012 before the district administration.
6. While so, the petitioner filed W.P.No.3740 of 2012 before this Court seeking for direction to the District Collector to grant licence to the petitioner to quarry stones from the patta lands in Survey Nos.1033/A1A, 1033/C1, 1034/A1 and 1035/3 measuring to an extent of 3.57.0 hectares in Vellakovil Village, Kangeyam Taluk, Tiruppur District.
7. The said writ petition W.P.No.3740 of 2012 was disposed of on 20.03.2012 directing the District Collector to consider the representation of the petitioner dated 25.09.2011 for the grant of permission to continue the quarrying operations in the lands belonging to the petitioner, and to pass appropriate orders thereon, on merits and in accordance with law, after hearing the petitioner, the Municipal Commissioner, Vellakovil and the other parties concerned within a period of eight weeks from the date of receipt of a copy of that order. The District Collector was also directed to consider the objections raised by the concerned parties in respect of granting lease for quarrying operations in the lands belonging to the petitioner, while passing appropriate orders, as directed by this Court.
8. In the circumstances, the District Collector, passed the impugned order dated 30.10.2012 rejecting the application of the petitioner for grant of lease. The reason for rejection is that the Gasifier Crematorium is being constructed within 100 metres from the quarry site and the Chairman and other Ward Members of the Vellakovil Municipality objected for granting lease, in view of construction of the crematorium. The order also states that the petitioner could file an appeal before the appellate authority within a period of 30 days.
9. The petitioner has filed this writ petition to quash the aforesaid order dated 30.10.2012 of the District Collector rejecting the application for grant of lease of rough stone and gravel.
10. While admitting this writ petition, this Court on 30.11.2012 granted interim order in M.P.No.1 of 2012 in W.P.No.32045 of 2012 that no further activities should be taken until further orders of this Court.
11. The municipality filed a counter-affidavit refuting the allegations and also filed M.P.No.1 of 2013 in W.P.No.32045 of 2012 seeking to vacate the interim order dated 30.11.2012.
12. The District Collector also filed counter-affidavit refuting the allegations and filed M.P.No.2 of 2013 in W.P.No.32045 of 2012 seeking to vacate the interim order granted in M.P.No.1 of 2012 in W.P.No.32045 of 2012.
13(i). The Municipality filed a detailed counter-affidavit. The following are the averments in the counter affidavit:
13(ii). It is averred that the Vellakovil town is a Second Grade Municipality and it consists of 21 Wards and 10 hamlets and having the population of 40,500. There are 20 big spinning mills and 10,000 power looms in operation. Due to growing population, the disposal of human dead bodies is a great problem for years together. The village people are using the road side poromboke land as cremation grounds and burial grounds and burning the dead bodies on the road side causes a serious health hazard and also panic among the school going children and also causes hindrance to traffic and also environmental pollution. The municipality enclosed many photographs along with their counter.
13(iii). It is also stated in the counter-affidavit that Section 280 of the District Municipalities Act mandates that the municipal council shall provide crematorium and burial ground for public.
13(iv). The Government of Tamil Nadu issued G.O.Ms.No.37, Municipal Administration and Water Supply Department, dated 30.01.2008 and accorded sanction for construction of 12 gasifier crematorium at a total estimated cost of more than Rs.8 Crores in two corporations and 10 municipalities. The Vellakovil municipality has been chosen as one among the ten municipalities for construction of gasifier crematorium. Accordingly, Rs.60 lakhs was sanctioned for the said purpose. Based on the sanction, the municipality passed a resolution to set up Gasifier crematorium in the space donated by one Murugesan in survey No.1049/1C, Ganapathypalayam Road, measuring an extent of 1.10 acres on 28.12.2011. The local member of Parliament also released some funds for additional construction to do rituals and mandapam for public to sit and do obsequies.
13(v). This petitioner earlier filed W.P.No.2277 of 2012 against the construction of Gasifier crematorium in the above said survey No.1049/1C and when the writ petition was about to be dismissed, he withdrew the writ petition without any liberty to file fresh writ petition in respect of above case. The petitioner is, thus, legally barred from raising the same issue, namely, construction of gasifier crematorium in Vellakovil Municipality.
13(vi). Under the guise of challenging the rejection of granting the lease in this writ petition, the petitioner had obtained interim order not to proceed further with the activities of construction of gasifier crematorium. The interim relief obtained by the petitioner is beyond the main relief in the writ petition. Hence, the interim order is to be vacated.
13(vii). It is further averred that the construction work in the gasifier crematorium is almost over and installation of equipment at the cost of Rs.20 lakhs alone is pending. At this stage, the petitioner obtained the interim order for his personal interest overlooking public interest. But for the interim order, the crematorium would have been operational.
13(viii). It is also stated that the lease obtained by M/s.Dhanvanth Blue Metals for five years expired on 28.09.2011. The petitioner also failed to pay property tax to the municipality. In these circumstances, the petitioner cannot seek to sustain the interim order. The municipality objected for the grant of lease for stone quarry to the petitioner, in view of the construction of gasifier crematorium. Based on the objection, the District Collector, has correctly passed the impugned order rejecting the application.
13(ix). The petitioner could have filed an appeal has provided under the 36(C)2 of the Tamil Nadu Minor Mineral Concession Rules, 1959 (for short "the Rules"). But the petitioner has straight-away came to this Court without exhausting the appeal remedy. Hence, the writ petition is liable to be dismissed.
13(x). The quarry site is within the prohibited distance of 300 metres from the crematorium, i.e., inhabited site, as per Rule 36 (1-A)(a) of the Rules. The quarry site is within the prohibited distance from the crematorium building. If quarrying operation is permitted, it would involve huge explosives and the same would cause serious damage to the crematorium and cause loss of human life.
13(xi). The petitioner filed civil suit in O.S.No.13 of 2012 on the file Sub Court, Dharapuram, and failed to get an interim injunction against construction of crematorium. Hence, the writ petition on the same subject matter is liable to be dismissed.
14. The District Collector also filed a detailed counter-affidavit in the same lines.
15. This Court, while so, passed an order on 22.03.2013 directing the parties to find out some amicable solution in the matter and any decision thereon shall be reported to the Court on 04.04.2013.
16. In order to comply with the aforesaid direction of this Court, a Joint Inspection Committee consisting of the Revenue Divisional Officer, Dharapuram, the Assistant Director (Mines), Tiruppur, the Commissioner (I/c), Vellakovil Municipality, the Regional Deputy Director, Town and Country Planning Department, Salem, and the Tahsildar, Kangeyam, was constituted to inspect the quarry site. The Joint Inspection Committee visited the site in the presence of the writ petitioner and gave a report on 09.05.2013.
17. The Joint Inspection Committee found that the construction of gasifier crematorium in Survey No.1049/1C2 is at the final stage. The Taluk Surveyors measured the distance between the gasifier crematorium and the quarry site. It was found that the distance between crematorium in survey No.1049/1C and quarry site in Survey No.1035/3 is 91.0 metres. The distance between the crematorium and Survey Nos.1033/A1A and 1033/C1 is 266 metres. All the survey numbers stated above are, thus, less than 300 metres from the crematorium.
18. The Joint Inspection Committee also noted that as per Section 164 of the Mettaliferous Mines Regulations Act, 1961, the area falling within 300 metres radial distance has been defined as dangerous zone. The people of Vellakovil municipality and 28 village surrounding the municipality would use the crematorium. If quarry operation is carried out, the blasting would take place and the stone blown during blasting would hit the public, who would come to gasifier crematorium. The people of the municipality, the Chairman and Councilors of the Vellakovil Municipality opposed for the grant of lease to quarry stone to the petitioner near the gasifier crematorium.
19. After the report of the Joint Inspection Committee, the first respondent District Collector filed additional counter-affidavit incorporating the views of the Joint Inspection Committee in their report.
20. Heard both sides.
21. The learned Senior Counsel for the petitioner has vehemently contended that the lease could be denied, as per Rule 36 1(A)(a) of the Rules, if there is an "inhabited site" within 300 metres from the quarry. According to him, the crematorium could in no way be described as "inhabited site". He relied on Explanation (iii) to Rule 36(1-A) of the Rules that defined "inhabited site". It is contended that the crematorium cannot be an inhabited site as per the aforesaid explanation.
21.1. He also relied on Rule 36(c) of the Rules and submitted that no new lay out or building plan falling within 300 metres from the quarry site shall be approved by any agency without prior clearance of the Director of Geology and Mining. The Director of Geology and Mining shall decide upon the continuance or closure of the quarry which is situated within 300 metres from the new layout or building.
21.2. The learned Senior Counsel submitted that the petitioner is willing to abide by any condition for the operation of the quarry. According to him, the quarry operation may be permitted between 6.00 p.m. and 8.00 am. and the same could not affect the people coming to the crematorium.
21.3. It was submitted that the impugned order is in violation of Articles 14, 19, 300-A and 21 of the Constitution of India.
21.4. It was also submitted that the impugned order is against the "promissory estoppel" and "legitimate expectation".
21.5. The learned Senior Counsel submitted that the petitioner invested huge amount by obtaining loan from the national bank.
21.6. The learned Senior Counsel has heavily relied on the following three judgments of this Court :
(1)V.Venkatanarayanan and Another V. The District Collector, Villupuram District, reported in CDJ 2009 MHC 3603 ;
(2)P.Jagannathasamy V. District Collector, Coimbatore reported in (2008) 3 MLJ 439 ; and (3)S.Shenbagavalli V. The District Collector, Theni District, Theni, reported in 2008 (2) TNLJ 629 (Civil).
22. On the other hand, learned Special Government Pleader as well as the learned counsel appearing for the second respondent/Vellakovil Municipality submitted that the Government sanctioned Rs.60 lakhs for the construction of gasifier crematorium in the Vellakovil municipality pursuant to G.O.Ms.No.37, Municipal Administration and Water Supply Department, dated 30.01.2008. Based on such sanction, a resolution was passed by the municipality for construction of gasifier crematorium. One Mr.Murugesan of Vellakovil donated land measuring 1.10 acres in Survey No.1049/1C2 at Ganapathypalayam road for the purpose of construction of gasifier crematorium. The Member of Parliament also donated Rs.20 lakhs for additional construction.
22.1. It was submitted that the crematorium is for the benefit of the people living in Vellakovil and also in the 28 surrounding villages. The crematorium would prevent environmental pollution and also health-hazards and it is for the public and on the other hand, in order to safeguard the private interest, the petitioner has filed this writ petition.
22.2. It was submitted that having withdrawn the earlier writ petition with the same prayer, the petitioner cannot file another writ petition on the same cause of action.
22.3. It was also submitted that the petitioner having approached the civil court, namely, Sub Court, Dharapuram, by filing O.S.No.13 of 2012 and without exhausting the appellate remedy, ought not to have invoked the extraordinary jurisdiction.
22.4. This Court in the order dated 22.03.2013 in this writ petition directed to find out some amicable solution and report the same to this Court on 04.04.2013. Accordingly, a Joint Inspection Committee consisting of the Revenue Divisional Officer, Dharapuram, the Assistant Director (Mines), Tiruppur, the Commissioner (I/c), Vellakovil Municipality, the Regional Deputy Director, Town and Country Planning Department, Salem, and the Tahsildar, Kangeyam, was constituted and the Committee gave its report.
22.5. The Joint Inspection Committee found that the construction of gasifier crematorium in Survey No.1049/1C2 is at the final stage and after the Taluk Surveyors measuring the distance between the gasifier crematorium and the quarry site, found that the distance between crematorium in survey No.1049/1C and quarry site in Survey No.1035/3 is 91.0 metres and the distance between the crematorium and Survey Nos.1033/A1A and 1033/C1 is 266 metres and the quarry site is, thus, less than 300 metres from the crematorium.
22.6. Rule 36 (1-A)(a) of the Rules stipulates that no lease shall be granted for quarrying stone within 300 meres from any inhabited site. The Commissioner of Municipal Administration issued proceedings granting administrative sanction, the Chief Engineer, Commissionerate of Municipal Administration, accorded technical sanction and the Deputy Director, Town and Country Planning, Salem Region, granted approval for construction of building relating to gasifier crematorium. Hence, according to them, the crematorium shall be classified as an approved building and it is an inhabited site and no quarry operation could be permitted within 300 metres.
22.7. They relied on the photographs and also the report of the Joint Inspection Committee to establish that the construction is almost over.
22.8. As regards the submission of the learned Senior Counsel for the petitioner that the quarry may be permitted to operate between 6.00 p.m. and 8.00 a.m., it was submitted that Rule 10(5) of the Explosive Rules, 2008, prohibits handling of explosives between the hours of sunset and sunrise.
22.9. They also brought to my notice the conditions imposed in Form 30, Shot Firer's Permit issued by the Department of Explosives, Government of India. One of the conditions imposed therein is that the blasting should be carried out only during sunrise to sunset.
22.10. When there is prohibition to quarry between 6.00 p.m. and 6.00 a.m., the quarrying operations cannot be permitted. They submitted that the dead bodies could come for burial at 7.00 a.m. and preparatory work could be commenced by 6.00 a.m. Hence, quarrying operations cannot be permitted between 6.00 p.m. and 8.00 a.m. on the next day.
22.11. They also distinguished the judgments stating that those judgments could not be applied to this case.
23. I have considered the submissions made by either side.
24. The Dhanvanth Blue Metals was granted licence for quarrying operations to rough stone and gravel in the patta lands in S.F.Nos.1033/A1A, 1033/C1, 1034/A1 and 1035/3 over an extent of 3.57.0 hectares in Vellakovil village, Kangeyam Taluk, Tiruppur District, for a period of five years from 29.09.2006 to 28.09.2011. After 28.09.2011, there was no licence. They applied for a fresh licence on 25.09.2011.
25. In the meanwhile, the Government issued G.O.Ms.No.37, Municipal Administration and Water Supply Department, dated 30.01.2008, sanctioning funds for construction of gasifier crematoriums to two corporations and ten municipalities and the Vellakovil municipality is one among the municipalities.
26. The Commissioner of Municipal Administration, Chennai, issued the proceedings in K.Dis.No.38684/P2/2001-1, dated 21.11.2011 granting administrative sanction and allotting funds of Rs.42.85 lakhs out of estimated cost of Rs.60 lakhs for the purpose of construction of gasifier crematorium at L.K.C. Nagar, Vellakovil Municipality, and the balance amount of Rs.17.15 lakhs would me utilized from the local body fund.
27. Since it was felt that the land at L.K.C. Nagar was not suitable for construction of gasifier crematorium, the Vellakovil municipality accepted the gift deed dated 28.12.2011 from one Mr.Murugesan donating land measuring 1.10 acres in S.No.1049/1C2, Ganapathypalayam Road and the Vellakovil Municipality passed a resolution on 02.01.2012 for the construction of gasifier crematorium at the place donated by one Mr.Murugesan by way of the gift deed dated 28.12.2011, in the land measuring 1.10 acres in S.No.1049/1C, Ganapathypalayam Road.
28. Accordingly, the Commissioner of Municipal Administration issued proceedings in K.Dis.No:1257/P2/2011, dated 11.01.2012 partially modifying the Administrative sanction to construct modern gasifier crematorium at Ganapathypalayam Road.
29. Thereafter, the Chief Engineer, Commissionerate of Municipal Administration, Chepauk, Chennai, in the proceedings in Roc.No.51878/2011/DO3, dated 23.01.2012 accorded revised technical sanction for construction of gasifier crematorium at Ganapathypalayam Road in Vellakovil, subject to the following conditions:
1.The Regional Executive Engineer, Tiruppur is permitted to give approval for the structural design and the copy of the design should be sent this office.
2.Before execution of the work the necessary permission should be obtained from the Tamil Nadu Pollution Control Board and the copy of the same should be sent this office.
3.Prior permission should be obtained from the Technical Sanction Authority for additional items / additional quantity of works to be executed if necessary.
4.Before execution of the work the soil test report and structural design should be obtained from the any Govt. Institutions.
5.All the construction materials including cement, steel, aggregates, Bitumen, gravel etc., for the above work should be tested in the Govt. owned / approved lab to ensure the quality and strength and test certificate should be obtained.
6.All works should be carried out as per TNBP specifications.
7.The Regional Executive Engineer, Tiruppur,is permitted to test check the works at various levels and super check and completion report approval should be obtained from the Chief Engineer, O/o.CMA, Chennai.
8.The PERT chart should be got approved from the Technical sanction authority to monitor with the progress of the work regularly.
9.During execution of RCC works, concrete cubes should be prepared and quality should be checked in the Govt. Engg. Colleges/Authorized laboratories.
10.Photos at each and every levels regarding the improvement of the scheme should be kept ready and produced during the inspection of the Chief Engineer, O/o.CMA, Chennai-5.
11.Progress report of the above work should be sent twice at every month to this office and also in online.
12.The Trust should be formed before the completion of the project to get proper training during O&M period.
13.The Commissioner should arrange to supervise during the O&M period for proper Maintenance and Operation of the system."
30. The Deputy Director of Town and Country Planning, Salem Region, issued the proceedings in ROC No.301/2012 SR3, dated .02.2012 approving the proposed construction of RCC Roof Gasifier Crematorium Ganapathypalaiam Road S.F.No.1049/1C2, Vellakovil Municipality, Tiruppur District. The order of the Deputy Direction of Town and Country Planning, Salem Region, dated ...02.2012 is extracted hereunder:
"With reference to the letter cited above the drawings indicating the plan, elevation cross section etc., for the project of construction of RCC roof Gasifier crematorium in Ganapathipalayam road, SF No.1049/1C2 of Vellakoil Municipality have been now approved by this office and numbered as B.P/R(S)No.2/2012 and the same are sent herewith the following conditions:
1.The measurement adopted in these drawings are those supplied by the Municipality Town Panchayat Special Panchayat details obtained from the Revenue Dept. and any defects found in them if pointed out by concerned personnel shall be suitably rectified.
2.These drawings indicate the layout pattern of the project proposals. Engineering details such as the size and depth of foundation, the size of beams and coloumns. Thickness of roof slab etc. shall be designed by the Public Works Department or the Executing Agency. These details need not be called for from this Department."
31. In the meantime, the petitioner filed W.P.No.2277 of 2012 seeking to forbear the respondents from constructing the crematorium in Survey No.1049 of Vellakovil municipality without considering the objection given by the petitioner dated 01.01.2012. However, the writ petition was dismissed as withdrawn on 01.02.2012.
32. Thereafter, the petitioner filed another writ petition in W.P.No.3740 of 2012 seeking for a direction to the District Collector to grant licence to the petitioner to quarry stones from his patta lands in Survey No.1033/A1A, 1033/C1, 1034/A1, 1035/3, to an extent of 3.57.0 hectares.
33. The writ petition was disposed of on 20.03.2012 directing the District Collector to consider the representation of the petitioner dated 25.09.2011 for the grant of licence to carry quarrying operations in the lands belonging to the petitioner, and to pass appropriate orders therein, on merits and in accordance with law. Based on the order, the District Collector, rejected the application of the petitioner for grant of lease for carrying quarry operations, by the impugned order dated 30.10.2012. The reason given in the impugned order is that a crematorium is being constructed within the prohibited distance of the quarry site. The Municipal Chairman and the Councillors opposed for granting lease to the petitioner.
34. Thereafter, the petitioner filed this writ petition to quash the order dated 30.10.2012 and for a direction to the respondents to grant permission to the petitioner to quarry in the lands situated at Survey No.1033/A1A, 1033/C1, 1034/A1, 1035/3, Vellakovil Village, Kangeyam Taluk, Tiruppur District, to an extent of 3.57.0 hectares.
35. This Court, while admitting the writ petition, granted interim direction that no further activities should be taken until further orders of this Court on 30.11.2012. Thereafter, the municipality filed an application dated 07.02.2012 in M.P.No.1 of 2013 seeking to vacate the interim order dated 07.02.2012. The District Collector filed an application dated 28.01.2013 in M.P.No.2 of 2013 seeking to vacate the interim order.
36. This Court passed an interim order on 22.02.2013 in this writ petition in W.P.No.32045 of 2012 which reads hereunder:
"Heard learned counsel for the parties.
Post the case "for orders", after two weeks.
In the meanwhile, the learned Special Govt. Pleader shall apprise the respondent what should be the best possible efforts between the parties for an amicable solution in the matter and any decision thereon to be reported to this Court on 04.04.2013."
37. In view of the aforesaid order dated 22.02.2013, a Joint Inspection Committee consisting of the Revenue Divisional Officer, Dharapuram, the Assistant Director (Mines), Tiruppur, the Commissioner (I/c), Vellakovil Municipality, the Regional Deputy Director, Town and Country Planning Department, Salem, and the Tahsildar, Kangeyam, was constituted. The Joint Inspection Committee visited the site on 09.05.2013 in the presence of the writ petitioner and the Town Surveyors measured the distance between the quarry site and the crematorium. Thereafter, the Joint Inspection Committee gave a report.
38. The following passage from the report is extracted hereunder:
@nkw;go jzpf;ifapd;nghJ 1049-1C2?y; mikj;Jf; bfhz;Ls;s jfdnkilahdJ Vwf;Fiwa Koa[k; jUthapy; cs;sJ/ nkw;fz;l jddnkilapy; ,Ue;J Fj;jif nfhhpa g[y vz;fSf;F ,ilnaahd Jhu';fs; jhYfh epy msth;fshy; mstPL bra;ag;gl;lJ/ nkw;go mstPl;od;nghJ fy;Fthup Fj;jif nfhhpa g[y vz;/1035-3 MdJ jfdnkilapy; ,Ue;J 91/0 kP Jhuj;jpYk;. g[y vz; 1033-A1A kw;Wk; 1031-C1 Mfpait 266 kP Jhuj;jpYk; mike;Js;sJ/ jfdnkilapypUe;J fy;Fthup Fj;jif nfhupa g[y';fs; midj;Jk; jfdnkil mike;Js;s ,lj;jpy; ,Ue;J 300 kP Jhuj;jpw;Fs; tUfpwJ/ bkl;lhyp bgu!; ikd;!; tpjp 164?d;go 300 kP Rw;wst[ MdJ Dangerous zone Mf tifg;ghL bra;ag;gl;Ls;sJ/ nkYk; jfdnkilahdJ bts;snfhtpy; efuhl;rpf;Fl;gl;l gFjpapy; tUtjhYk;. nkYk; mjid Rw;wp gy fpuhk';fs; cs;s epiyapy;; nkw;go jfdnkilapy; bghJkf;fs; cgnahfk; mjpfstpy; ,Uf;f tha;g;g[fs; cs;sJ/ nkYk; bts;snfhtpy; efuhl;rpf;F brhe;jkhd kahdkhdJ fU:u; beL";rhiyf;F mUfpy; cs;sjhy; ,dp tU';fhy';fspy; mij cgnahfg;gLj;Jtjw;F beL";rhiyj; Jiwapdh; kw;Wk; bghJkf;fs; vjpu;g;g[ cs;sjhy; ,e;j etPd jfdnkil cgnahfk; kpft[k; Kf;fpakhf fUjg;gLfpd;wJ/ bts;snfhtpy; efuhl;rp kw;Wk; mjid Rw;wpa[s;s 28 fpuhk bghJkf;fshy; nkw;go jfdnkil cgnahfg;gLj;Jk; epiy cUthfpa[s;sJ/ ,jdhy; nkw;go jfdnkilapy; bghJkf;fs; Tl;lk; mt;tg;nghJ TLk; R{H;epiy cUthFk; tha;g;g[fs; mjpfk;/ nkYk; rk;ke;jg;gl;l Fj;jif nfhhpa g[y';fs; kw;Wk; kDjhuUf;F cupikahd ,ju g[y';fs;aht[k; 300 kP Rw;wstpw;Fs;nsna tUfpwJ/ 300 kP Rw;wstpw;Fs; fy;Fthhp eilbgWk;nghJ mjdhy; Vw;gLk; fw;rpjuy;fshy; bghJkf;fSf;F Mgj;J Vw;gLk; epiy cUthtJld;. murpd; bgUepjpapy; ,Ue;J cUthf;fg;gl;l ,j;jpl;lkhdJ gadw;WnghFk; jd;ik cUthf VjthFk; vdt[k; jzpf;ifapy; bjupa tUfpwJ/ vdnt murpd; epjpapy; ,Ue;J bfhz;Ltug;gl;l jfdnkilahdJ kpft[k; ghJfhg;ghd Kiwapy; bghJkf;fshy; cganhfg;gLj;j Vjthf nkw;go Fj;jif nfhhpa g[y';fs; kw;Wk; 300 kP Rw;wstpw;F vt;tpj fy;Fthup Fj;jifa[k; tH';f ntz;lhk; vd efuhl;rp epu;thfk; Ml;nrgid bjhptpj;Js;sJ/ vdnt nkw;go Fj;jif nfhUk; g[y';fs; aht[k; 300 kP Rw;wstpw;Fs; tUtjhy; jfdnkilf;F tUk; bghJkf;fSf;F ghJfhg;ghf jdJ cwtpdh;fspd; ,Wjp rl';fpy; fye;Jbfhs;s VJthf nkw;go Fj;jif nfhhpa g[y vz;/1031-C1, 1033-A1A, 1035-A1 kw;Wk; 1035-3 Mfpa g[y';fspy; fy;Fthup Fj;jif VJk; tH';f ntz;lhk; vd Tl;Lg;g[yj;jzpf;if mYtyh;fshy; jPh;khdpf;fg;gLfpwJ/ nkYk; bts;snfhtpy; efuhl;rpapd; fl;Lg;ghl;ow;Fs; cs;s bkhj;j gug;gst[ 64/75 rJu fpnyh kPl;lh; cs;sJ/ nkYk; $dj;bjhif 52000 Mf cs;sJ/ ,Jnghf mjid Rw;wpa[s;s 28 fpuhk bghJkf;fSf;Fk; ,e;j jfdnkilia cgnahfg;gLj;jt[k; cs;sjhf efuhl;rp eph;thfk; bjuptpj;Js;sJ/ jfdnkilf;F bry;y ghij kw;Wk; rhiy trjpfs; cs;sd/ nkYk; Mtz';fis Ma;t[ bra;jjpy; jfdnkil mike;Js;s 13?tJ thh;L ft[d;rpyh; kw;Wk; efuhl;rp ,ju ft[d;rpyh;fs; kw;Wk; jiyth;. nkYk; efuhl;rp bghJkf;fshy; nkw;go jfdnkilf;F mUfpy; fy;Fthhp mikg;gjw;F fLikahd vjph;g;g[fs; cs;sJ bjhpa tUfpwJ/@
39. The aforesaid report of the Joint Inspection Committee makes it clear that the entire construction relating to crematorium almost came into existence. I have also seen the photographs. It is quite a massive construction. Rs.60 lakhs was utilised for the same and a person by name Murugesan donated land for the construction of the modern gasifier crematorium. There is a technical approval issued by the Chief Engineer, Commissionerate of Municipal Administration, and the approval was also granted by the Deputy Director, Town and Country Planning, Salem Region, as stated above.
40. But the learned Senior Counsel has submitted that as per Rule 36(1-A)(a) of the Rules, there is a prohibition for operation of quarry only if the inhabited site is within 300 metres from the quarry site. According to him, the crematorium cannot be termed as inhabited site. Rule 36(1-A)(a) of the Rules is usefully extracted in this regard:
"36. General restrictions in respect of quarrying operations-
(1-A)(a) No lease shall be granted for quarrying stone within 300 metres (three hundred metres) from any inhabited site:
Provided that the existing quarries which are subsisting under current leases shall be entitled for continuance till the expiry of the lease period. The Lessees whose quarries lie within a radius of 300 metres from the inhabited site shall undertake blasting operations only after getting permission of the Director of Mines Safety, Gorgaum :
Provided further that the new and existing unites of quarries shall also be required to comply with the pollution control measures (i.e., dust control measures) besides complying with the other conditions in regard to Pollution Control Measures."
41. It is relevant that Explanation (iii) to sub-rules (1) and (1-A) of Rule 36 of the Rules defines "inhabited site" and the same is extracted as hereunder:
"(iii) 'inhabited site' shall mean a village site or town site or a house site as referred to in the revenue records or a house site or layout approved by a Local Body or Town or Country or Metropolitan Planning Authority, where the said Body or Authority is created under a statute and empowered to approve such an area as a house site or layout area."
42. In view of the technical approval accorded by the Chief Engineer, Commissionerate of Municipal Administration, Chepauk, Chennai, in ROC No.51878/2011/DO3, dated 23.01.2012 and the approval accorded by the Deputy Director, Town and Country Planning, Salem Region, for the construction of RCC Roof Gasifier Crematorium at Ganapathypalayam Road S.F.No.1049/1C2, Vellakovil Municipality, Tiruppur District, in ROC No.301/2012 SR3, dated ..02.2012 , I have no hesitation to hold that the Gasifier Crematorium shall be termed as "inhabited site".
43. It is not in dispute that if it is inhabited site, then there cannot be any mining activities within 300 metres as per Rule 36(1-A)(a) of the Rules. The crematorium is 91 metres away from quarry site in Survey No.1035/3 and 266 metres away from other Survey Nos.1033/A1A and 1033/C1. Hence, there is no infirmity in the order dated 30.10.2012 passed by the District Collector rejecting the application for grant of lease.
44. However, learned Senior Counsel has heavily relied on three judgments, namely, (I) V.Venkatanarayanan and Another V. The District Collector, Villupuram District, reported in CDJ 2009 MHC 3603; (II) P.Jagannathasamy V. District Collector, Coimbatore reported in (2008) 3 MLJ 439 ; and (III) S.Shenbagavalli V. The District Collector, Theni District, Theni, reported in 2008 (2) TNLJ 629 (Civil).
45. These judgments are dealt with hereunder:
(I) V.Venkatanarayanan and Another V. The District Collector, Villupuram District, reported in CDJ 2009 MHC 3603:
(i) There were two writ petitions. One writ petitioner was granted stone quarry lease in respect of his patta land. The lease deed was executed on 21.03.2006 for a period of five years. Another writ petitioner was granted stone quarry lease in respect of Government land. The lease was executed on 19.09.2005 for a period of five years.
(ii) It was an admitted fact that some anti-social elements have made encroachments by putting up huts within the prohibited distance. Instead of removing the encroachments, show-cause notices were issued to the petitioners to show-cause as to why quarry lease should not be cancelled on the ground that the encroachments were made within the prohibited distance. Ultimately, the lease were cancelled by the impugned orders. Those orders were impugned and interfered with by this Court taking into account the fact that instead of removing encroachments, leases were cancelled in the case of the petitioners on the ground that the same was for the safety of the encroachers.
(iii) The following passages in paragraphs 9 and 15 of the order in CDJ 2009 MHC 3603 is extracted in this regard:
"9. A reference to the original orders by which the permit was granted to the petitioners show that on the basis of the applications of the petitioners and based on the technical report of the Deputy Director of Geology and Mining, Villupuram, the lease was granted for five year period which, admittedly, has not expired as on date. It is not the case of the respondent in the impugned orders that there was any violation of conditions of permit granted earlier. The objection, as it is seen in these cases is that within the prohibited area of 300 metres some local people have encroached, either by attempting to put up permanent structure or temples. In view of such encroachments, the respondent having found its inability in removing the encroachers, has given show-cause notice to the petitioners for cancellation of leases, instead of removing the encorachers. ....
15. The reasons adduced as it is seen in the impugned orders and could be culled out from the counter affidavit filed by the respondent that the respondent is unable to remove the encroachers and therefore to safeguard the life and property of encroachers, the lease should be cancelled is not the one acceptable as per law, especially with reference to rule 36 of the Tamil Nadu Minor Mineral Concession Rules, since such decision has not been arrived at based on proper enquiry after giving opportunity to the petitioners to prove that the encroachers have no right to continue and that by continuing the lease, such encroachers' life is not in jeopardy. ...."
(iv) Therefore, in my considered view, the said judgment cannot be applied to the facts of this case. Here, in this case, firstly, the lease granted to the petitioner expired in the year 2011 itself. Secondly, the modern gasifier crematorium was constructed pursuant to the government order and the approval was granted by the planning authorities and the same could never be stated to be encroachment.
II. P.Jagannathasamy V. District Collector, Coimbatore reported in (2008) 3 MLJ 439 :
(i) The petitioner therein filed three writ petitions, namely, W.P.Nos.22442, 27972 and 27973 of 2007.
(ii) In 27972 of 2007, he sought to quash the lease granted to the quarry operator Thiru.Elangovan, in respect of Survey No.519/1, Myvadi Village, Udumalaipet Taluk, Coimbatore District. In W.P.No.27973 of 2007, he sought to quash the lease granted to the quarry operator Tmt.Jeyalakshmi, in respect of Survey No.513/2A, Myvadi Village, Udumalaipet Taluk, Coimbatore District. In W.P.No.22442 of 2007, he sought for the issuance of mandamus directing the respondent therein to prevent quarrying of any mineral in the above said survey numbers by the lessees.
(iii) The case of the petitioner therein was that he owns land in Survey No.531/2, Myvadi Village, Udumalaipet Taluk, Coimbatore District, to an extent of 3.84.5 hectares. The said land is an agricultural land, wherein, he built up a house as well as poultry farm. He paid property tax. According to him, the land in Survey No.513/2A and 519/1 are adjacent to his land in Survey No.531/2 and therefore, the quarry operations therein greatly affected the poultry farm and the poultry farm is within 300 metres from the quarry site. Hence, according to him, the quarry site is within the prohibited distance as per Rule 36(1-A) of the Rules.
(iv) On facts, this Court found that the subject quarry in Survey No.519/1 was in operation since 1995. There was also another stone quarry in Survey No.520 in the government promboke land from 1999 to 2004. The quarry operations were carried out in yet another Survey No.518, which is closer to the petitioner property. More importantly, it was found that the petitioner himself applied for grant of lease to quarry stone in Survey No.531/2 (part) over an extent of 0.97.0 hectares vide his application dated 12.12.2005. Later, he withdrew the same. Further, he put up his house in the agricultural land and the same is not inhabited site as per the rules. In those circumstances, this Court, taking into account all these facts, came to the conclusion that the petitioner approached this Court with malafide intention to curtail the fundamental rights of the lessees in their lawful activity. Hence, writ petitions were dismissed.
(v) In this case, the local body, namely, Town and Country Planning authority has granted approval for construction of a crematorium, while, the petitioner therein in (2008) 3 MLJ 439 did not have any such approval. Further the petitioner therein in that case himself sought for lease, while he objected for others having lease on the ground that the same could cause disturbance to his poultry farm. He also did not question the operation of some other quarry which are nearby to his poultry farm. Thus, the aforesaid judgment cannot of any use to the petitioner herein.
III. S.Shenbagavalli V. The District Collector, Theni District, Theni, reported in 2008 (2) TNLJ 629 (Civil):
(i) It is a Public Interest Litigation. The petitioner therein sought for a writ of mandamus directing the respondents to stop auction proceedings for stone quarry for a site in Survey No.2202/1 (part IV) to an extent of 10.67 hectares situated in Allinagaram Village, Theni District.
(ii) According to the petitioner therein, she owns lands in Survey No.261/13, 262/7, 262/2 and 307/13B and the lands are fertile and there are mango trees. The Government land dry lands in Survey No.2202/1 is adjacent to the petitioner's agricultural land and grant of lease for stone quarry to the adjacent land would affect the agricultural operation.
(iii) This Court found that Survey No.2202/1 is comprised of five parts, each measuring 10.67.5 hectares of government poramboke land. Out of five parts in survey No.2202/1, in Allinagaram village, the petitioner's husband is quarrying in Survey No.2202/1 (part 3) which is located closer to the petitioner's agricultural land, for which, the petitioner has not made any objection. In these circumstances, the PIL was dismissed.
(iv) Therefore, the aforesaid case reported in 2008 (2) TNLJ 629 (Civil) cannot be relied on by the petitioner in support of his submissions. In this case, admittedly, the modern gasifier crematorium is constructed by the Government for the benefit of public in accordance with law and the quarry site of the petitioner is within the prohibited distance of 300 metres.
Hence, the judgments relied on cannot be of any use to the petitioner.
46. For all the above said reasons, this writ petition fails and the same is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
04.10.2013
Index : Yes / No
Internet: Yes / No
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Note : Issue order copy
on 07.10.2013
To
1. The District Collector,
Tiruppur,
Tiruppur District.
2. The Commissioner,
Vellakovil Municipality,
Vellakovil, Tiruppur District.
D.HARIPARANTHAMAN, J.
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Order in
W.P.No.32045 of 2012
& M.P.No.1 of 2012
and M.P.Nos.1 & 2 of 2013
04.10.2013