Madras High Court
A.K.Rajasekaran vs The District Collector on 29 July, 2019
Author: G.Jayachandran
Bench: G.Jayachandran
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 17.07.2019
PRONOUNCED ON : 29.07.2019
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Writ Petition Nos.3458, 3634, 7638, 7684 and 7689 of 2019 and
W.M.P.Nos.3758, 3759,3981, 3983, 8276, 8277, 8314, 8316,
8321 and 8322 of 2019
A.K.Rajasekaran ... Petitioner in W.P.No.3458/2019
R.Vinodraj ... Petitioner in W.P.No.3634/2019
K.Agoram ... Petitioner in W.P.No.7638/2019
K.Iyappan ... Petitioner in W.P.No.7684/2019
M.Mahesh ... Petitioner in W.P.No.7689/2019
Vs
1.The District Collector,
Nagapattinam,
Collectorate,
Nagapattinam District.
2.Assistant Director,
Industries and Mines,
Nagapattinam District.
3.Revenue Divisional Officer,
Mayiladudurai,
Nagapattinam.
4.Assistant Executive Engineer,
Public Works Department,
Mayiladudurai.
5.The Project Director,
District Rural Development Agency,
Nagapattinam. ... Respondents in all W.Ps
http://www.judis.nic.in
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Prayer in W.P.No.3458 of 2019 :- This Writ Petition is filed under
Article 226 of the Constitution of India for a writ of Certiorarified Mandamus
calling for the records pertaining to the impugned order of the first
respondent passed in Na.Ka.No.378/Mines/2018 dated 04.01.2019 and
quash the same and consequently direct the respondents to permit clearance
of 65 units of Silt/savudu quarried and lifted consequent to the permission
granted by the third respondent.
Prayer in W.P.No.3634 of 2019 :- This Writ Petition is filed under
Article 226 of the Constitution of India for a writ of Certiorarified Mandamus
calling for the records pertaining to the impugned order of the first
respondent passed in Na.Ka.No.378/Mines/2018 dated 04.01.2019 and
quash the same and consequently direct the respondents to permit clearance
of 92 units of Silt/savudu quarried and lifted consequent to the permission
granted by the third respondent.
Prayer in W.P.No.7638 of 2019 :- This Writ Petition is filed under
Article 226 of the Constitution of India for a writ of Certiorarified Mandamus
calling for the records pertaining to the impugned order of the first
respondent passed in Na.Ka.No.378/Mines/2018 dated 04.01.2019 and
quash the same and consequently direct the respondents to permit clearance
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of 208 units of Silt/savudu quarried and lifted consequent to the permission
granted by the third respondent.
Prayer in W.P.Nos.7684 & 7689 of 2019 :- These Writ Petitions are filed
under Article 226 of the Constitution of India for a writ of Certiorarified
Mandamus calling for the records pertaining to the impugned order of the
first respondent passed in Na.Ka.No.378/Mines/2018 dated 04.01.2019 and
quash the same and consequently direct the respondents to permit the
petitioner to take the permitted quantity of silt/savudu quarried by him
pursuant to the permission of the third respondent.
In W.P.Nos.3458, 7638, 7684 & 7689 of 2019:-
For petitioner :Mr.AR.L.Sundaresan, Senior Counsel
for Mr.N.Gnanalingam
For Respondents :Mrs.P.Rajalakshmi,
Additional Government Pleader
In W.P.No.3634 of 2019:-
For petitioner :Mr.AR.L.Sundaresan, Senior Counsel
for Mr.K.Arunagiri
For Respondents :Mrs.P.Rajalakshmi,
Additional Government Pleader
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COMMON ORDER
The five writ petitions are filed for certiorarified mandamus challenging the communication of the first respondent dated 04/01/2019. The facts are identical and the grounds in support of the prayer is also identical. Hence, after considering the averments in the affidavits, counter affidavits and reply affidavit, the following common order is passed.
2.In the affidavit filed by A.K.Rajasekaran, petitioner in W.P.No.3458 of 2019, it is stated that, based on G.O.Ms.No.50 Industries (MMC-1) dated 27/04/2017, the 3rd respondent vide his order dated 14/08/2018 permitted him to quarry clay, silt, savudu and gravel at free of charges from the Government pond in Radhanallur village subject to conditions. Accordingly, he spent money and quarried clay, silt, savudu and gravel from the said pond for improving the soil of his agricultural land. Since, it was harvest season and also rainy, he stored the 65 units of silt/savudu quarried from the pond in the vacant land of one Agoram to use it in his agricultural land later, after harvest is over.
3.Similarly, for the same reason, other permit holders also stored the mineral in the vacant land of Agoram. Noticing huge storage of silt/savudu in the land of Agoram, the Police attached to Thiruvengadu Police Station viewed it as illegal storage of river sand and formally seized 1800 units of http://www.judis.nic.in 5 sand on registering criminal case under sections 379, 420 IPC and Section 3(1) of the Tamil Nadu Property Prevention of Damage and Loss Act, (TNPPDL Act) and Section 21 (1) of the Mines and Minerals (Development and Regulations) Act 1957.
4.The petitioners contention is that, when the material seized by the Police was subjected to laboratory test, it was found to be un-fit for construction and is of poor quality. Thus, it is established that, it is not river sand and it is silt/savudu. On receipt of the laboratory report, the first respondent (District Collector, Nagapattinam) ought to have permitted clearance of the silt/savudu. Instead, the first respondent has unilaterally and arbitrarily had passed order dated 04/01/2019 directing the 5 th respondent (the Project Director, District Rural Development Agency, Nagapattinam) to lift the said sand and use it for Government projects.
5.The other writ petitioners have also challenged the same communication of the first respondent dated 04/01/2019 and sought identical relief except the quantity of silt/savudu alleged to have quarried by them and stored at the vacant land of Agoram are different. For easy reference, the quantity of mineral sought to be returned by these writ petitioners is extracted below:-
http://www.judis.nic.in 6 S.No W.P.Number Petitioner Date of Units name permit admitted to have quarried 1 W.P 3458/2019 A.K.Rajasekaran 14/08/2018 65 units. 2 W.P.3634/2019 R.Vinodraj 20/07/2018 92 units. 3 W.P.7638/2019 K.Agoram 25/06/2018 208 units.
& 20/07/2018
4. W.P.7684/2019 K.Iyyappan 24/08/2018 ---
5. W.P.7689/2019 M.Mahesh 24/08/2018 ---
6.The first respondent in his counter has stated that Agoram, the writ petitioner in W.P.No.7638 of 2019 and 12 others got permission to desilt the ponds and water source areas in Thiruvengadu, Kuchipalayam, Illayamadhukudam and Radhanallur Villages of Sirkazhi Taluk, Nagapattinam District. Instead of destilting sand and clay within the permitted depth, they exceeded the depth and quarried the sand according to their whims and fancies. The Tiruvengadu Police registered case against Agoram, writ petitioner in W.P.No.7638 of 2019 and 12 others in Crime No.218/2018 for quarrying mineral without permission from the Government and stocking in the land of Agoram to sell it for higher rate. Three lorries which were used for tranporting illegally quarrying mineral were also seized. The mineral stocked in the lands of Agoram was measured and based on the report from http://www.judis.nic.in 7 the Revenue Divisional Officer, Mayiladuthurai, the District Collector (first respondent) ordered to take appropriate action to sell the 1800 units of seized sand through public auction and remit the collected amount into the Government account.
7.The Assistant Executive Engineer, Public Works Department, Mayiladuthurai in his letter dated 05.12.2018, informed the District Collector, Nagapattinam that, the seized sand is not having the required standard quality to sell through public auction. In the mean while, the fifth respondent requested the District Collector to permit him to use the seized sand for the Government scheme. Accordingly, the District Collector directed the fifth respondent to remit the cost for 1800 units sand into Government account and take the sand for use of Government scheme.
8.According to the first respondent, the petitioners have no locus standi to question the lawful action taken by the authorities against the illegal quarry and stocking of sand. If the cost of the said sand is not collected from the fifth respondent, who is ready to use the sand, Exchequer will have to face financial loss.
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9.In response to this counter, the petitioners have filed a reply affidavit wherein, the averment made by the District Collector (first respondent) that they have excavated the soil more than the permitted depth is denied and also the nature of mineral excavated is also disputed by them. According to the petitioners, the mineral excavated by them were all silt/savudu/clay. Whereas, the respondents in spite of report from the laboratory that the mineral is not sand fit for construction, still considering it as river sand valuing it at the rate of Rs.1,300/- per unit and trying to dispose it to the fifth respondent. The petitioners emphasise that they quarried the mineral within the permissible limit and the mineral stocked by them were not illegal sand.
10.The learned Senior Counsel appearing for the petitioners would submit that the petitioners have removed silt/savudu as per the permission granted by the authorities and for the reasons stated, they have stocked the excavated mineral in the vacant land of Agoram (writ petitioner in W.P.No.7638 of 2019), for using it at a later point after the change of season. Even after the finding of the laboratory that the mineral stocked by the petitioners are not fit for construction and the attempt taken by the petitioners to auction the mineral end in futile, still, the first respondent consider the mineral as 'sand' and directed the fifth respondent to take away http://www.judis.nic.in 9 the sand after paying the cost of Rs.1330/- per unit which is the market rate for high quality sand. Further, the learned Senior Counsel also circulated the proceedings issued by the third respondent causing notice to the permit holders who have excavated excess savudu mineral fixing the value of the savudu @ Rs.140 and seigniorage charge @ Rs.120 as penalty and making demand to pay the said money.
11.The main contention of the petitioners through their consel is that Rule 12(2)(a) of Tamil Nadu Minor Mineral Concession Rules, 1959 which reads as below permits them to quarry mineral free of charges.
12. Removal of sand, etc., from lands and tanks in- charge of some departments :-
(1) The preceding rules, however, do not govern the removal of sand, etc., from works and lands in-charge of the Public Works Department and tanks in-charge of Revenue Department.
(2) The public may be allowed to quarry free to charge for bonafide domestic or agricultural purposes sand, earth or silt from the beds of tanks under the control of the Public Works Department or Revenue Department which are notified by the Collector under this rule without obtaining permits for quarrying provided that the dwelling place, or http://www.judis.nic.in 10 agricultural land of the person concerned and the quarrying place shall be in the same revenue village or in the adjoining revenue village. Quarrying for other than bonafide domestic or agricultural purposes shall be subject to the previous permission being obtained from the District Collector concerned and to the payment of seigniorage fee for the quantity of the mineral sought to be removed at the rates specified from time to time in Appendix II to these rules. Any removal of mineral from these lands shall be subject to the restrictions mentioned below:-
(i) pits shall be at a distance of atleast twice the height of the bund from the toe of the bund and they shall not be more than one metre in depth (the depth shall be less, if pits one metre deep are likely to expose porus strata);
(ii) earth shall not be carted along the tank bund unless the 35 bund is a recognised road or cart-track;
(iii) bunds shall not be cut to enable to pass;
(iv) silt removed not to be stacked on tank beds, sluice or any other masonary works of the tanks and cause ways or slopes of bunds; and http://www.judis.nic.in 11
(v) carts shall not touch any portion of the revetment, sluice or any masonary works of the tanks and cause damage to them]1 (3) Before issuing the notification mentioned in the sub-rule (2) the Collector shall consult the Executive Engineer concerned in respect of tanks in-
charge of Public Works Department.
(4) The village officer shall, every year, report to the Tahsildar or Deputy Tahsildar concerned, the tanks in-charge of both the Public Works Department and Revenue Department from which further removal of sand, earth or silt should be prohibited temporarily. They shall also send a report about the tank in-charge of the Revenue Department from which such removal may be permitted again. The Tahsildar or Deputy Tahsildar shall scrutinise the lists and submit his proposals to the Collector on receipt of the reports from the Tahsildar or Deputy Tahsildhar the Collector shall, every year, issue a revised notification if he considers the revision necessary. Extracts from the revised notification shall be sent to the Executive Engineers whenever tanks incharge of Public Works Department are excluded from the list of tanks from which removal of sand, earth or silt had been permitted.” http://www.judis.nic.in 12
12.The claim of the petitioners is that, following the Government Order issued by the Government, villagers were permitted to desilt the tanks and ponds upto a specific quantity. Accordingly, these petitioners, after obtaining permit from the authorities, removed mineral from the ponds situated at Thiruvengadu, Kuchipalayam, Illayamadhukudam and Radhanallur Villages of Sirkazhi Taluk, Nagapattinam District and stored in the land belonging to Agoram. The petitioners were forced to keep it in a common place owned by Mr.AGoram since, the notification for quarrying sand was issued during the middle of cultivating season, so, after the harvesting, the farmers decided to use the savudu. This has been mistook as illegal storage of sand. The communication of the Assistant Executive Engineer, Public Works Department, dated 05.12.2018 clearly shows that the mineral found in the land of Agoram collected and kept by the petitioners were found to be unfit for construction work and therefore, the said mineral cannot be put to public auction or sold by the Mines and Minerals Department.
13.While facts being so, the first respondent sent a communication to the fifth respondent to utilise the sand on payment of cost of Rs.1,330/- per unit, is improper and illegal. The prime contention of the learned Senior Counsel appearing for the petitioner is that, what the petitioners have quarried is only silt/savudu within the permissible depth. In fact, they have http://www.judis.nic.in 13 documents to show that what they have excavated and stored at the vacant site of Agoram is substandard mineral, unfit for construction work.
14.In the light of the above contention, it is necessary to find out 'whether the units of mineral claimed to have been excavated and stored by these petitioners, were within the permissible limit.
15.A.K.Rajasekaran, the petitioner in W.P.No.3458 of 2019 was granted permission by the third respondent on 14.08.2018 to excavate silt/savudu between 15.08.2018 and 19.08.2018 from the Government poromboke pond situated at S.No.6/1, Radhanallur Village, Nagapattinam District. In that proceedings, the Revenue Divisional Officer, Mayiladuthurai has specifically directed the petitioner that he can excavate only 4 units of savudu, per acre of land and sand excavated by him shall be utilised for his land in S.No.286/1,2,3, 287/5,6,7,8,9, 289/14, 292, 11, 293 total extent area of 1.045 hectare. The petitioner in his affidavit states that he has excavated 65 units of savudu. When the petitioner was permitted to excavate only 4 units per acre and the holding is only 1.045 hectare, which is less than 3 acres of and, the petitioner should not have excavated more than 12 units mineral, at the most. Whereas, in this case, in his own affidavit, admits that he has excavated 65 units of silt/savudu.
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16.R.Vinodraj, the petitioner in W.P.No.3634 of 2019 was permitted to excavate savudu between 21.07.2018 and 23.07.2018 to fill his land in S.No.287/1,2,3 to an extent of 2.82.0 hectare. He was permitted to take the savudu from the Government pond in S.No.51/5, Radhanallyur Village. As per the permission proceedings, he is entilted to excavate four units per acre. As per the permission order, he is holding nearly 7 acres of land. At the most he should have excavate only 28 units. Whereas, even according to his own affidavit, he has excavated 92 units and stored in the land of Agoram.
17.K.Agoram is the writ petitioner in W.P.No.7638 of 2019. In his land, 1800 units of sand mineral was found and seized. He was permitted to excavate savudu by four proceedings dated 25.06.2018; 02.07.2018; 04.07.2018 and 08.07.2018 in the different ponds situated at Radhanallur Village, and to fill the savudu in his agricultural land at S.No.286 to an extent of one hectare each.
18.Without going into the veracity of the permits so issued for a single person on four different dates for the very same land, even assuming that, the same are genuine permissions issued in accordance with law, the petitioner Agoram was permitted to take four units of savudu per acre for http://www.judis.nic.in 15 the very same S.No.286 to an extent of one hectare each. Four permits were issued to him on four different dates and even according to these four permits, he should have excavated only 4 units per acre and for four hectare, it is around 10 acres and at the most, he should have excavated only 40 units. Whereas, in his affidavit he admits out of 1800 units of sand stores at his land 208 units of sand was excavated by him.
19.As far as K.Iyyappan, the writ petitioner in W.P.No.7684 of 2017 is concerned, the permission granted by the third respondent dated 24.08.2018 indicates that he was permitted to desilt the pond in S.No.6/1 at Radhanallur village to fill the sand in S.No.286/1,2,3, 287/5,6,7,8,9, 289/14, 292, 11, 293 total extent area of 1.045 and was permitted to take only 4 units per acre. Even as per this permission, he should have excavated only 10 units of mineral. In the writ petition, he has not mentioned the actual quantity of mineral which he has excavated but only sought for return of mineral quarried by him and stored in the land of Agoram, pursuant to the permission granted to him.
20.As far as M.Mahesh, the writ petitioner in W.P.No.7689 of 2019 is concerned, permission was granted by the third respondent on 24.08.2018 to take savudu from the pond in S.No.6/1, Radhanallur Village to fill http://www.judis.nic.in 16 silt/savudu in S.No.286/1,2,3, 287/5,6,7,8,9, 289/14, 292, 11, 293 total extent area of 1.045 hectare. He was permitted to take only 4 units per acre. If this permit is to be considered as valid and genuine, this petitioner should have excavated only 10 units of minerals. Whereas, he has not mentioned the actual extent of savudu in his land but sought for return of savudu to the extent which he was permitted to excavate.
(a)At this juncture, it is pertinent to note that for the utilisation/filling up of very same survey numbers of land both Mr.K.Iyappan (Petitioner in W.P.No.7684 of 2019) and Mr.Mahesh (Petitioner in W.P.No.7689 of 2019), were given permits.
21.On scrutinizing the permission proceedings issued by the third respondent to all these petitioners and the extent of permission granted to them to excavate mineral, primarily, it is obviously clear that for the very same survey numbers, several permits were issued to different persons or to same person on different dates. The overlap of survey numbers in the proceedings of the third respondent to these petitioners and particularly for the very same survey numbers, Agoram has been given four permits on various dates, clearly indicates that a fraud has been committed by the petitioners in connivance with the third respondent. http://www.judis.nic.in 17
22.Next, even if the permits are assumed to be genuine, the extent of sand which should have been excavated is far far less what been found by the Police and seized from the land of Agoram. The Police authorities have rightly initiated criminal proceedings against them and intimated to the first respondent about the illegal storage of mineral. The quality of the mineral stored might be of substandard quality but, that does not anyway mean that the petitioners' act of excavating minerals excessively and storing it in unauthorised place can be legal.
23.Being the resource of the State, it is for the State to decide how it should be utilised. The petitioners who are violators of law, cannot have any say in it. In fact, the first respondent herein should have taken appropriate action against the third respondent, who has issued multiple permits to very same person and multiple permits to different persons for the same land.
24.As it is demonstrated above, multiple permits were issued to very same person for the very same land and multiple permits were issued to various persons for the same land. The quantity of mineral which ought to have been excavated does not match or proportionate to the mineral found in the land of Agoram and seized by the authorities concerned. http://www.judis.nic.in 18
25.For all these reasons, this Court finds no merit in the writ petitions. The writ petitions are dismissed. The first respondent herein is directed to enquire and take suitable action against the officials who have issued permits for same land to different persons and multiple permits for same person to same land. No costs. Consequently, connected miscellaneous petitions are closed.
29.07.2019 jbm Index: Yes/No Speaking order/non speaking order To
1.The District Collector, Nagapattinam, Collectorate, Nagapattinam District.
2.Assistant Director, Industries and Mines, Nagapattinam District.
3.Revenue Divisional Officer, Mayiladudurai, Nagapattinam.
4.Assistant Executive Engineer, Public Works Department, Mayiladudurai.
5.The Project Director, District Rural Development Agency, Nagapattinam.
http://www.judis.nic.in 19 G.JAYACHANDRAN.J., jbm Pre delivery Order made in W.P.Nos.3458, 3634, 7638, 7684 and 7689 of 2019 29.07.2019 http://www.judis.nic.in