Jubedha Bi v. District Collector Tiruvellore District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 02.04.2009CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIANDTHE HON'BLE MRS.JUSTICE ARUNA JAGADEESANWRIT APPEAL NO.633 of 2008and M.P.No.1 of 20081.Jubedha Bi2.Fatima Bi3.S.A.Habibullah4.S.Ahmad Hussain5.M.Kalesha6.A.Abdul Gaffar7.Maboo8.S.Kalesha9.S.Thameen10.A.Yousuf11.Akbar Basha ..Appellants/Petitionersvs.1. District Collector Tiruvellore District.2. Department of Geology & Mining rep. By its Director Guindy, Chennai 600 032.3. Assistant Director Department of Geology & Mining Tiruvellore District.4. State of Tamil Nadu rep. By its Secretary Industries Department Fort St.George, Chennai 600 009.5. S.Nandagopal6. The Revenue Divisional Officer Ponneri Taluk, Tiruvellore District. https://hcservices.ecourts.gov.in/hcservices/

7. The Tahsildar Gummidipoondi Tiruvellore District. ..Respondents/RespodentsWrit Appeal is filed against the order of the learned singleJudge made in W.P.No.33518 of 2007 dated 28.04.2008 filed underArticle 226 of the Constitution of India to issue a Writ ofDeclaration that the order of the 2nd respondent dated 27.9.2001bearing Ref.Rc.No.16709/MM3/2000 is illegal, contrary to the Minesand Minerals (Development and Regulation) Act, 1957 and The MineralConcession Rules, 1960 and the Tamil Nadu Minor Mineral ConcessionRules 1959, consequently direct the respondents from any mannerpermitting/continuing the mining operations in Survey Nos. 46/1A,46/1B, 47/1, 47/2, 47/3, 47/4, 48, 49/1, 49/1B, 49/1C, 49/2, 49/2,49/3, 51/2A, 51/2B, 51/2C, 51/2D, 51/2E, 51/3A, 46/2A to pay acompensation of Rs.5,00,000/- (Rupees Five Lakhs only) per petitionertogether with costs.For appellants: Mr.S.Vaidyanathan for Ms.R.SudhaFor respondents: Mr.R.Thirugnanam Special Govt.Pleader for R.1 to 4,6&7 Mr.S.Krishnasamy for R.5JUDGEMENTP.JYOTHIMANI,J.The unsuccessful writ petitioners before the learned Judge onWrit side has filed this appeal. On a perusal of the records, it isseen that the 5th respondent, Thiru S.Nandagopal, has applied forgrant of lease for mining the mineral 'silica sand' from surveyNo.46/1A and other survey numbers at Elavur village, Gummidipoonditaluk, Tiruvallur District to an extent of 4.16.0 hectares for aperiod of 20 years. 2. The case of the writ petitioners is that the said landbelonged to their forefathers and they have inherited the same afterthe demise of the original owners. The 5th respondent while filingthe application for grant of lease, appears to have sent all thenecessary particulars and fulfilled the formalities requiredincluding the production of lease deed dated 30.6.2000 stated to havebeen entered into between the 5th respondent and the petitionersagreeing to lease the land in favour of the 5th respondent. TheDistrict Collector, Tiruvallur is stated to have forwarded the saidapplication and all other materials to the Director of Geology andMining for his remarks. It appears that the Revenue DivisionalOfficer, Ponneri and the Tahsildar, Gummidipoondi were asked to give https://hcservices.ecourts.gov.in/hcservices/ their report about the agreement of lease stated to have been enteredby the 5th respondent with the petitioners. Further, it appears thatthe Tahsildar after conducting enquiry and calling for objectionsfor the grant of lease in favour of 5th respondent, has recommended inhis report dated 25.7.2000 and 25.8.2000, for the grant of permissionfor mining silica sand in favour of the 5th respondent. It is alsoseen that the District Collector in the enquiry, called forobjections from the public and there was no objection received inrespect of grant of mining lease and it was also reported that therewas no permanent structure, but there is an existing Odai on thewestern side adjacent to survey numbers 46 and 47 of the area appliedfor mining lease. The District Collector has recommended for thegrant of mining lease for the said land cautioning that the safetydistance of 10 metres should be left on the western side of the areaapplied for. 3. A reading of the order of the learned Judge against which thepresent writ appeal is filed makes it clear that the learned Judgehas called for the entire records and gone through the minute detailsof the records and the technical report submitted by the AssistantDirector, Mines, Tiruvallur, wherein it is stated that the areaapplied for mining lease is not compact but contiguous and therefore,it partly satisfies section 6(1) of the Mines and Minerals(Regulation and Development) Act, 1957 and the length of the areaapplied for mining lease is not exceeding four times the width of thearea applied for and therefore, it satisfies Rule 35 of the MineralConcession Rules, 1960. In the report it is also stated that thesilica sand available in the area applied for is estimated to beabove 1,29,150 metric tonnes, after deleting the safety distance areaof Odai. There was also a caution given to the effect that adjacentto the Odai, 10 metres should be left out. With the said report, theAssistant Director of Department of Geology and Mining sentrecommendations to the Director of Geology and Mining for the grantof lease in favour of the 5th respondent for a period of 20 yearssubject to the condition that 10 metres distance should be left outadjacent to Odai.4. There was even a revised technical report dated 11.6.2001,wherein the third respondent had stated that the silica sand isformed due to wind action and silica sand is dull coloured and thatit is found to occur below a thin layer of top soil, the thickness ofwhich ranges from ½ to 1 metre. It is further stated that thethickness of silica sand is above 3 metres and it occurs as loose andcompact material. The entire area which can be reserved for the samewas arrived at 3.93.0 hectares leaving a safety area of 0.23.0hectares for the Odai and the recovery percentage being taken up as60% and the reserve has been estimated to be 1,76,850 metric tonnes.Having considered the said report, the second respondent scrutinisedthe application, in exercise of his powers delegated underG.O.Ms.No.133, Industries (MMA 1) Department dated 4.5.1998 and https://hcservices.ecourts.gov.in/hcservices/ passed the impugned order dated 27.9.2001, granting mining lease forsilica sand for a period of 20 years in favour of the 5th respondentsubject to the condition that the safety distance of 10 metres to beleft out for the existing Odai on the western side of the areaapplied for mining lease. 5. The abovesaid facts, which have been culled out by thelearned Judge on perusal of the file, make it very clear that thetechnical requirements as per the Rules have been followedscrupulously. In such view of the matter, it can never be presumedthat in the grant of lease in favour of the 5th respondent by theauthorities, the provisions of Mines Act as well as Minerals Ruleshave been violated.6. Very peculiarly, it is seen that the petitioners have taken astand as if some of the joint owners have not authorised the 5threspondent to enter into the mining lease. The fact remains that theimpugned order was passed as early as 27.9.2001 and admittedly, fromthe date of the said order the 5th respondent has been carrying onmining operations as per the permission granted by the authoritiesand it is, only after several years, in 2007, the petitioners havechosen to challenge the impugned order with the peculiar reason thatthe 5th respondent has not been authorised by some of the owners atall. Even assuming that consent has not been obtained from some ofthe owners of the property for the purpose of 5th respondent carryingon mining lease, the long silence on the part of the petitionerswould itself go to show that they have also accepted the lease infavour of 5th respondent. 7. Further, a perusal of the order of learned Judge also makesit clear that the petitioners have signed the lease deed and the factthat some of the owners have not agreed to give the land on leasewould not be a ground to set aside the impugned order, especiallywhen it has been passed after having gone into the minute details asrequired under law. If really the petitioners are of the view thatthe 5th respondent has not been granted proper lease as per thecontract of lease entered into between them, they have to agitate thesame in appropriate forum and it is not open to them to approach thisCourt under Article 226 of the Constitution of India, as correctlyheld by the learned Judge in the order. 8. In support of his case, Mr.S.Vaidyanathan, learned counselfor the appellants would place reliance on section 4-A(2) of theMines and Minerals (Regulation and Development) Act, 1957 which isas follows:"Section 4-A. Termination of prospectinglicences or mining leases. https://hcservices.ecourts.gov.in/hcservices/ (1) ....(2) Where the State Government is of opinionthat it is expedient in the interest or regulationof mines and mineral development, preservation ofnatural environment, control of floods, preventionof pollution or to avoid danger to public healthor communication or to ensure safety of buildings,monuments or other structures or for such otherpurposes, as the State Government may deem fit, itmay, by an order, in respect of any minor mineral,make premature termination of prospecting licenceor mining lease with respect to the area or anypart thereof covered by such licence or lease."The said provision only enables the State Government to terminate thecontract of lease before the period on various emergent reasons forthe purpose of preservation of natural environment, control offloods, prevention of pollution or to avoid danger to public healthor communication or to ensure safety of buildings, monuments or otherstructures etc. The contention of the learned counsel for theappellants is that in view of the enabling provision, the Governmentshould have excluded the land from granting mining lease as the landhas been affected by Tsunami. First of all, this was not raised bythe petitioners earlier, at any point of time. The petitioners haveonly challenged the lease granted by the authorities in favour of the5th respondent. Further, it is for the Government to exercise itsdiscretion under section 4-A(2) in a fit case in the public interest.In such view of the matter, it is not possible to accept the abovecontention of the learned counsel for the appellants.9. The other ground which is insisted by the counsel for theappellants is that the 5th respondent himself has filed a suit inO.S.No.341 of 2007 on the file of District Munsif, Ponneri andinterim injunction was granted by the trial Judge and ultimately, thesuit was dismissed for default. Again, that is not a ground tochallenge the lease granted in favour of the 5th respondent. The meredismissal of suit does not take away the rights available to the 5threspondent, if the same have been conferred under the lease entered.As stated above, if the case of the petitioners is that such lease isvoid in law, it is for them to work out their remedy in appropriateforum and not by invoking Article 226 of the Constitution of Indiafor the purpose of holding that by virtue of section 19 of Mines andMinerals (Regulation and Development) Act, 1957 such contract shouldbe held as void. 10. One other ground raised by the appellant is that thefollowing five persons viz., Tvl. S.Akbar Basha, S.Basheer, (Tmt.)Southan Beevi, Sheik Abdul Khader and Abdul Latiff, owning an extentof 6.70 acres in toto have not entered into agreement with 5th https://hcservices.ecourts.gov.in/hcservices/ respondent and not given any authority to the 5th respondent andtherefore, the grant of licence in respect of the said extent of landshould be held invalid. Again, the said contention is notsustainable. As stated above, these are all the matters which cannotbe decided by this Court under Article 226 of the Constitution ofIndia since the same require appreciation of evidence. In view of the same, there is no ground to interfere with theorder of the learned Single Judge and the writ appeal fails and thesame is dismissed. No costs. Connected miscellaneous petition isclosed.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarkhTo1. The District Collector, Tiruvellore District.2. The Director Department of Geology & Mining Guindy, Chennai 600 032.3. The Assistant Director Department of Geology & Mining Tiruvellore District.4. The Secretary State of Tamil Nadu Industries Department Fort St.George, Chennai 600 009.5. The Revenue Divisional Officer Ponneri Taluk, Tiruvellore District.6. The Tahsildar Gummidipoondi Tiruvellore District.+ 1 c.c. to M/s. R. Sudha, Advocate. S.R.No.12393.+ 1 c.c. to M/s. S. Krishnasamy, Advocate. S.R.No.12057.+ 1 c.c. to The Government Pleader. S.R.No.11922. WRIT APPEAL NO.633 of 2008KJI (CO)GSK 18.04.2009.