V.Venkatanarayanan & Ors. v. The District Collector Villupuram District Villupuram

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:14.08.2009CORAM:THE HON'BLE MR. JUSTICE P.JYOTHIMANIWRIT PETITION Nos.525 & 527 of 2009and connected miscellaneous petitions...V.Venkatanarayanan .. Petitioner in W.P.No.525 of 2009V.Sathiyanarayanan .. Petitioner in W.P.No.527 of 20079vs.The District CollectorVillupuram DistrictVillupuram. .. Respondent in both the Wps.Writ petitions filed under Article 226 of the Constitution ofIndia praying for issuance of Writ of Certiorari as stated therein. For petitioners: Mr.K.Ramakrishna ReddyFor respondent: Mr.V.Arun Addl.Govt.Pleader.. COMMON ORDERThese writ petitions are directed against the orders ofthe respondent, the District Collector, Villupuram dated 22.12.2008,by which the respondent has cancelled the lease granted in favour ofthe petitioners. 2. The petitioner in W.P.No.525 of 2009, was granted stonequarry lease in respect of his patta land measuring 0.08.0 hectaresin survey No.47/2 and 1.22.5 hectares in survey No.48/1 totalling1.30.5 hectares in Ambhuzhukkai village, Vanur taluk, VillupuramDistrict. The lease deed was executed on 21.3.2006 for a period of https://hcservices.ecourts.gov.in/hcservices/ five years from 21.3.2006 to 20.3.2011. Likewise, the petitionerin W.P.No.527 of 2009 was granted stone quarry lease in respect ofGovernment land measuring 0.40.5 hectares in survey No.108/2 inThiruvakkarai village, Vanur taluk, Villupuram District. The leasedeed was executed on 19.9.2005 for a period of five yers from19.9.2005 to 18.9.2010. 2(a). Under Rule 36 of the Tamil Nadu Minor Mineral ConcessionRules, 1959, (in short, "the Rules") in respect of granting oflease, originally there must be 500 metres of distance from thehabitation to the place of quarry, whether it is patta land orGovernment land. It was, only after inspection that there was nohabitation for a distance of 500 mts. the lease was granted infavour of the petitioners. It is stated that in respect of thesequarries when anti-social elements have encroached by putting uphuts within the prohibited distance, the matter was taken up to theSupreme Court and ultimately, the Supreme Court directed the StateGovernment to frame necessary rules regarding habitation and also toreduce the safety distance from 500 to 300 metres. It was,thereafter, Rule 36 was amended by G.O.Ms.No.88, Industries, dated18.10.2002, by which the distance is reduced from 500 metre radiusto 300 metre redius and the term 'inhabited site' is defined, whichwould not include encroachers. 2(b). It is the case of the petitioners that the respondent hasnot taken any steps to remove the encroachers who have put upunauthrosied huts within the prohibited distance, however, show-cause notices were issued on 27.03.2008 to the petitioners by therespondent asking them to show-cause as to why quarry lease shouldnot be cancelled on the ground encroachments have been made withinthe prohibited distance. Explanations were submitted on 8.4.2008stating that the quarry is not situate within the prohibiteddistance of 300 metres of inhabitation and asking for inspection ofthe quarry sites. When the respondent, by issuing show-causenotice, stopped the petitioners' quarrying operations, thepetitioners filed W.P.Nos.25658 and 25649 of 2008 for Mandamusagainst the respondent from interfering with the right of quarryingoperations by the petitioners. The said writ petitions weredisposed on 28.10.2008 with direction to complete enquiry on theissue and pass orders. 2(c). It is the case of the petitioners that in spite of suchdirection, the respondent has not inspected the quarrying sites andconducted enquiry to find out as to whether the quarrying places arelying within the prohibited distance and without conducting anyenquiry, the leases were cancelled under the impugned orders.3. The impugned orders are challenged on the ground that thehuts are put up by the encroachers and they are not the lawful https://hcservices.ecourts.gov.in/hcservices/ occupants and the respondents should have taken steps to remove theencroachers and the show-cause notice was issued to avoid somecontempt proceedings. It is also stated that the respondent has noright or jurisdiction to permit any encroacher to put up anydwelling hut within the prohibited distance of 300 metres after theleases for quarry were granted. The jurisdictional authority is theDirector of Geology and Mining and not the respondent and therefore,the orders of cancellation are without jurisdiction. It is alsothe case of the petitioners that the encroachers cannot be treatedas lawful occupants for the purpose of cancelling the leases, byrelying upon the judgment of the Supreme Court and therefore, theimpugned orders are challenged as violative of Articles 14 and 19(1)(g) of the Constitution of India. The impugned orders are violativeof the principles of natural justice, since no personal hearing wasgiven and no enquiry was conducted in the manner known to law andthe authority should have acted as per the statutory rules framed. 4. It is the contention of Mr.K.Ramakrishna Reddy, learnedcounsel for the petitioners in the writ petitions that even afterthe direction issued by this Court on earlier occasion, there was noproper enquiry conducted by the respondent and in the enquirycontemplated under the Rules an opportunity must be given to thepetitioners to submit explanation and there should be physicalverification to find out whether tenements had been put up withinthe prohibited distance and if so, whether such tenements had beenput up after the leases were granted to the petitioners and also tofind out as to whether such occupants are encroachers and whetherthe leased places can be termed as "inhabited sites".5. On the other hand, it is the contention of Mr.V.Arun,learned Additional Government Pleader appearing for the respondentthat the earlier order passed by this Court was only to pass ordersafter conducting enquiry and after personal hearing was given to thepetitioners and after obtaining statements from the petitioners, theimpugned orders came to be passed and therefore, the impugned ordersare well within the direction given by this Court earlier and nointerference is warranted. He would also submit that the impugnedorders themselves provide for an effective appellate remedyavailable and without resorting to the appellate remedy, which is tobe made before the Director of Geology and Mining, the present writpetitions have been filed, which are liable to be dismissed.6. The fact that the Tamil Nadu Minor Mineral Concession Rules,1959 came to be amended by G.O.Ms.No.88, Industries, dated18.10.2002 and G.O.Ms.No.286, Industries, dated 1.4.1999 is not indispute. By virtue of the said Government Orders, Rule 36 of theTamil Nadu Minor Mineral Concession Rules, 1959 which is captionedas 'General restrictions in respect of quarrying operations' wasamended. Sub Rule 1-A of the said Rule is as follows: https://hcservices.ecourts.gov.in/hcservices/ "Rule 36. General restrictions in respect ofquarrying operations-(1) xxxx(1-A) (a) No lease shall be granted for quarryingstone within 300 metres (three hundred metres) from anyinhabited site:Provided that the existing quarries which aresubsisting under current leases shall be entitled forcontinuance till the expiry of the lease period. Thelessees whose quarries lie within a radius of 300 metresfrom the inhabited site shall undertake blastingoperations only after getting permission of the Directorof Mines Safety, Corgaum:Provided further that the new and existing units ofquarries shall also be required to comply with thepollution control measures [(i.e.) dust control measures]besides complying with the other conditions in regard toPollution Control Measures.(b) The methodology specified in column (2) of theTable shall be adopted in respect of the operationalsources specified in column (1) thereof for rock quarryingoperations.TABLESl.No.OperationalSourcesMethodology to be adopted for controlling thedust.-1(2)(3)1DrillingLiquid injection (water with a wetting agent)of capturing and venting emissions to acontrol device.2BlastingAdoption of good blasting practices.3Loading (atmines)Water wetting.4TransportWatering treatment with surface agents, soilstabilisation on paving.(c) No new layout, building plans falling within 300metres from any quarry should be given approval by anyagency unless prior clearance of the Director of Geologyand Mining is obtained. On receipt of proposals foraccording clearance, the Director of Geology and Mining https://hcservices.ecourts.gov.in/hcservices/ shall decide upon the continuance or closure, as the casemay be, of any quarry which is situated within 300 metresfrom the new layout, buildings sought for such clearance.]"7. It is not in dispute that the prohibited distance of 500metres for the purpose of granting lease has been reduced to 300metres from any 'inhabited site'. As stated above, after the saidamendments, the authorities who grant lay out or building plancannot grant such approval within 300 metres from the quarry, unlessprior clearance from the Director of Geology and Mining is obtained.It is in such circumstances, when an application is received for layout or building plan within the distance of 300 metres from quarrysite, the Director of Geology and Mining should decide either tocontinue or to close the quarry which is situate within 300 mts.from the new lay out or building. It is also significant to notethat the term, 'inhabited site' which is mentioned in Rule 36(1-A)is defined in the said rule as follows:"'inhabited site' shall mean a village site or townsite or a house site as referred to in the revenue recordsor a house site or layout approved by a Local Body or Townor Country or Metropolitan Planning Authority, where thesaid Body or Authority is created under a statute andempowered to approve such an area as a house site or lay-out area."8. The said rule also imposes an obligation on the permitholder or lessee or his tenant to keep correct account showing thequantity and other aspects of the minerals obtained and despatchedfrom the quarry. It also imposes various restrictions includingthat only at the place where the permission is granted the quarryoperations should be done and after the expiry of permit, themineral should not be removed. Rule 36(5)(h) which is as follows:"Rule 36. General restrictions in respect ofquarrying operations-(1) to (4) xxx(5) (a) to (g) xxxx(5) (h) In case of breach by the quarrying permit-holder or quarrying lease holder or his transferee orassignee of any of these rules or of the conditions of thelease, the Director of Geology and Mining or the ChiefConservator of Forests, as the case may be, or theDistrict Collector or the District Forest Officer, a thecase may be, without prejudice to any other penalty whichmay be imposed in respect of such breach, may cancel thelease after granting an opportunity of hearing to the said https://hcservices.ecourts.gov.in/hcservices/ person."which enables the Director of Geology and Mining or the DistrictCollector or the District Forest Officer to cancel the lease aftergiving an opportunity of hearing to the said lessee.9. A reference to the original orders by which the permit wasgranted to the petitioners show that on the basis of theapplications of the petitioners and based on the technical report ofthe Deputy Director of Geology and Mining, Villupuram, the lease wasgranted for five year period which, admittedly, has not expired ason date. It is not the case of the respondent in the impugnedorders that there was any violation of conditions of permit grantedearlier. The objection, as it is seen in these cases is that withinthe prohibited area of 300 metres some local people have encroachedeither by attempting to put up permanent structure or temples. Inview of such encroachments, the respondent having found itsinability in removing the encroachers, has given show-cause noticeto the petitioners for cancellation of leases, instead of removingthe encroachers. In fact, in the reply to the show-cause notices,the petitioners have disputed the contents of the show-cause noticesthat there has been encroachment within the prohibited distance of300 metres from the place of quarry. 10. In similar circumstances when licence was cancelled, thisCourt in W.P.No.11396 of 2005 in the order dated 2.7.2008 held thatbefore cancelling such lease, it requires a proper enquiry aftergiving opportunity to the parties and with that direction, the writpetition came to be allowed. In similar circumstances after issuingshow-cause notice in respect of same patta land, when the respondentattempted to stop issuing permission to stone quarrying withoutconducing enquiry, the petitioner in W.P.No.525 of 2009 filedW.P.No.25658 of 2008 to forbear the respondent, the DistrictCollector from preventing the petitioner from carrying on quarryingoperations in survey No.47/2 and 48/1 of Ambuzukkai village, Vanurtaluk, Villupuram District. In that case, it was admitted by therespondent that the petitioner was sought to be prevented fromquarrying only due to the reason that the encroachers are livingnearby and till the enquiry is completed, the quarrying by thepetitioner should be stopped. While disposing of the said writpetition, this Court has observed that,"7. Simply because this Court passed an orderdirecting the respondent to remove encroachers byconducting enquiry, it is not proper for the respondent todeprive right of the petitioner in continuing thequarrying operation, unless and until the licence isterminated in the manner known to law."Ultimately, this Court has directed the respondent to complete the https://hcservices.ecourts.gov.in/hcservices/ enquiry initiated as per the show-cause notice dated 27.3.2008 andto pass orders, which is in the following words:"9. Therefore, the writ petition is disposed of with adirection to complete the enquiry initiated by givingsecond show cause notice dated 27.03.2008 to thepetitioner and pass appropriate orders on merits and inaccordance with law expeditiously, in any event within aperiod of four weeks from the date of receipt of a copy ofthis order. It is made clear that till the respondent,District Collector passes appropriate final order, therespondent shall not prevent the petitioner fromproceeding with the quarrying operation and ultimately, itis the duty of the respondent to issue permit for thepurpose of removal of the stones, which have been quarriedby the petitioner, pursuant to the licence. No costs.The Connected miscellaneous petition is closed."11. The contention of the respondent in these writ petitions isthat the impugned orders themselves came to be passed only as perthe above directions of this Court. It is also stated that afterthe above said order, the petitioners were served with notices, forwhich written explanation was submitted and the petitioners weregiven opportunity to appear in person and after obtaining jointwritten statement from the petitioners along with other three quarryowners and after considering the safety of the life and property ofthe encroachers, the quarry lease was terminated. The relevantportion of the counter affidavit filed by the respondent is asfollows:" 12. The contention of the petitioner in para 14 and15 of the affidavit is not correct. The petitioner wasserved with show cause notice and written explanation hasbeen obtained, the writ petitioner have been givenopportunity of personal hearing and joint writtenstatement has been obtained from the petitioner along withthree other quarry owners and after considering the safetyof the life and property of the encroachers, the quarrylease was terminated."Therefore, it is clear that the only reason assigned for the purposeof terminating the lease under the impugned orders is the safety oflife and property of encroachers. 12. As per the conditions of lease, it is not in dispute thatthere are various conditions given which are to be followed by thelicensee and encroachment does not form part of the conditions forthe lease granted. In any event, when there was encroachment by https://hcservices.ecourts.gov.in/hcservices/ third parties within the prohibited distance of 300 metres from theplace of quarrying for which the lease was granted, fairnessrequires that after the issue of show-cause notice, the respondentshould have found first as to whether there is encroachment withinthe prohibited area and whether such encroachment was made eitherbefore or after the grant of lease to the petitioners. Therespondent being the District Collector should take proper action toremove the encroachers to safeguard their interest. The duty on thepart of the District Collector to remove the encroachers cancertainly be presumed by referring to the term, 'inhabited site'defined under rule 36 as stated above. The inhabited site must bein a lay out approved by the Local Body or Town and Country PlanningAuthority. Therefore, any occupation by encroachers which isunauthorised can never be termed as 'inhabited site'. Further, therule contemplates that no new lay out can be approved by thecompetent authority if it is within 300 metres of prohibited area ofquarry site unless a clearance is given by the Director of Geologyand Mining. Therefore, even in a case where a person owning hisland within the prohibited area seeks to have approval of lay outand building plan, the same cannot be granted by the authorityconcerned without obtaining clearance from the Director of Geologyand Mining. It means that even in those cases, on receipt of suchapplication for approval of lay out within the prohibited area of300 metres, the Director of Geology and Mining has to conduct anenquiry and find out as to whether such approval to the lay out canbe given and it is he who has to decide as to whether the lease hasto be cancelled or the lay out proposal has to be rejected. Thatdecision can be arrived at by the Director of Geology and Miningonly by conducting a proper enquiry, which means that he or hisofficials should visit the site and find out the physical nature ofthe property.13. While so, in case of encroachment, the respondent/DistrictCollector being the authority of the district administration has tonecessarily find out by way of enquiry after conducting localinspection through his officials as to whether there is encroachmentat all and if such encroachment is within the prohibited distance of300 metres, it is his duty to take action to remove the encroachersas such site will not be stated as a approved lay out area since theplace of encroachment cannot be termed as 'inhabited site' as perthe rules.14. On the facts and circumstances of the case, the respondenthas not properly implemented the earlier order of this Court bywhich a specific direction was given to conduct enquiry, which meansan enquiry as per rule 36 of the Tamil Nadu Minor Mineral ConcessionRules, 1959 as stated above, which must be in relation to 'inhabitedsite'. As it is seen in the impugned orders and also the counteraffidavit filed by the respondent, it is not the case of the https://hcservices.ecourts.gov.in/hcservices/ respondent that such enquiry was conducted. It is common knowledgethat even in respect of approved sites which are situate within theprohibited distance of 300 metres, only on the spot inspection, therespondent can find out as to whether the approval of lay out issought for after the lease was granted and in such case, it is forthe respondent to take appropriate action in consultation with theDirector of Geology and Mining as found in rule 36(1-A)(c) of theRules as elicited above. When that is the position as to theapproval of lay out, the present case which relates to encroachersstands on a different and much lower footing. 15. The reason adduced as it is seen in the impugned orders andcould be culled out from the counter affidavit filed by therespondent that the respondent is unable to remove the encroachersand therefore to safeguard the life and property of encroachers, thelease should be cancelled is not the one acceptable as per law,especially with reference to rule 36 of the Tamil Nadu Minor MineralConcession Rules, since such decision has not been arrived at basedon proper enquiry after giving opportunity to the petitioners toprove that the encroachers have no right to continue and that bycontinuing the lease, such encroachers' life is not in jeopardy. Inthe absence of such proper and full-fledged enquiry, it is notpossible to accept the contents of the respondent in the counteraffidavit and also the contention of the learned AdditionalGovernment Pleader that the impugned orders are sustainable in law.16. In such circumstances, when the basic principles of enquiryhave not been followed, it is a case of violation of the principlesof natural justice which is explicit on the facts, I am of the viewthat merely because an alternative remedy of appeal is available,the petitioners must be driven to file appeal. In the absence of thebasic principles of law relating to enquiry being followed, nouseful purpose will be served in driving the petitioners to fileappeal. Even though it has been oft-repeatedly held that wheneffective alternative remedy is available, the writ petition is notmaintainable under Article 226 of the Constitution of India, it isequally well settled that mere availability of alternative remedyis not a bar for enforcing the right under Article 226 of theConstitution of India where the principles of natural justice arenot followed and there is violation of fair play and justice.Further, it is relevant to note that the jurisdiction of therespondent to cancel the lease is only subject to the finding anddecision of the Director of Geology and Mining, who is the ultimateauthority and who is technically qualified to assess the correctsituation. While admitting the writ petitions, this Court has alsogranted an order of interim stay which continues to be in force tilldate.In such view of the matter, the writ petitions are allowed and https://hcservices.ecourts.gov.in/hcservices/ the impugned orders are set aside with direction to the respondentto conduct proper enquiry as stated above and pass appropriateorders after giving opportunity to the petitioners on merits and inaccordance with law. No costs. Connected miscellaneous petitionsare closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkhToThe District CollectorVillupuram DistrictVillupuram.+2cc to Mr.K.Ramakrishna Reddy, Advocate Sr 38313,38314+1cc to Govt. Pleader Sr 38799TEJ(CO)km/27.8. W.P.Nos.525 & 527/09