B.C. Krishnan v. The Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.6.2009CORAMTHE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMARWRIT PETITION NO.23779 OF 2008AND M.P.NO.1 OF 2008B.C. Krishnan ..PetitionerVs.1. The Government of Tamil Nadu rep. by its Secretary Industries Department Fort St. George Chennai – 600 009.2. The District Collector Krishnagiri District Krishnagiri.3. The Chairman cum Managing Director Tamil Nadu Minerals Limited Tamin House, Chennai – 600 005.4. The Divisional Manager Tamil Nadu Minerals Limited D.R.G. Madhapalli Post Krishnagiri Taluk Krishnagiri District. ..RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of Mandamus forbearing therespondents 3 and 4 from carrying out any mining operation inS.No.383/1 in Sendarapalli Village, Krishnagiri Taluk, KrishnagiriDistrict till providing safeguards to the petitioner's right to enjoyhis adjacent patta lands.For Petitioner : Ms. P. SelviFor R1 and R2 : Mr. K. Balakrishnan, AGPFor R3 and R4 : Ms. A.V. Bharathi https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe prayer in this writ petition is to issue a Writ of Mandamusforbearing the respondents 3 and 4 from carrying out any miningoperation in S.No.383/1 in Sendarapalli Village, Krishnagiri Taluk,Krishnagiri District, till providing safeguards to the petitioner'sright to enjoy his adjacent patta lands.2. The case of the petitioner is that he is the owner of thelands in Survey Nos.382/7A, 8, 9A, 9B, 9C, 10, 11, 5B, 6C and 7B inpatta Nos.1131 and 744. According to the petitioner, the said landswere purchased by various Sale Deeds and the total extent of land is10 acres 27 cents and in the said Survey No.382, the petitionercarried the quarrying operation after obtaining permission from theauthorities and the lease period is already over. After expiry of thelease period, according to the petitioner, he is doing agriculturalwork in his patta lands. Adjacent to the above said lands, there is aGovernment poromboke land in Survey No.383/1 and the Tamil NaduMinerals Limited got lease of the said lands for quarrying. Thefourth respondent is in charge of the quarrying operation, who hasentrusted the same to the private contractors. The petitioner in hisaffidavit stated that he has no grievance for doing quarryingoperation after leaving the safety distance from the boundary line,however, the TAMIN had not provided the safety distance. Thepetitioner earlier filed W.P.No.32076/2002 and by order dated2.8.2002 and this Court directed the petitioner to make arepresentation to the respondents and the respondents were directedto do survey by following Section 10(2) of the Tamil Nadu Survey andBoundaries Act and dispose of the representation on merits. Thepetitioner submitted a representation before the second respondentand thereafter, survey was conducted and direction was issued toTAMIN to lay the survey stones and to remove the wastages dumpedthere. It is also averred in the affidavit that the TAMIN withoutcomplying with the directions started quarrying operation andtherefore, the petitioner filed a writ petition for a mandamusforbearing the respondents from carrying out any mining operationwithout complying with the statutory requirements, such removal ofwastages, which were dumped in the patta lands of the petitioner andfor demarcation of the boundary line by laying survey stones. ThisCourt granted interim injunction originally, which was subsequentlyvacated and appointed an Advocate Commissioner to find out thedividing line for the limited purpose and report as to whether TAMINhas dumped any waste materials and if available, the quantity of suchdumped materials. 3. The learned Advocate Commissioner filed an interim reportsaying that there are dumped waste materials in the petitioner'spatta lands and prayed for further time to fix the boundary line.According to the petitioner, in the meanwhile, the lease granted tothe respondent had expired and on 21.1.2008, and this Court dismissed https://hcservices.ecourts.gov.in/hcservices/ the writ petition on the basis of the letter issued by the firstrespondent dated 14.1.2008. After dismissal of the above writpetition, the petitioner has now filed this writ petition with theabove said prayer.4. The third respondent has filed a counter affidavit by statingthat the extent of land owned by the petitioner is only 8.02 acresand not 10.27 acres as claimed. It is denied in the counter affidavitthat no direction was issued to the TAMIN to remove the dumped wastematerials as there was no dumping of waste materials in thepetitioner's patta lands. The petitioner prevented the Governmentmachinery when the team of surveyors attempted to survey the lands on18.6.2003 pointing out the pendency of the matter before this Court.Therefore, the survey team could not complete the survey. 5. It is also stated in the counter affidavit that in the writpetition filed earlier, namely, W.P.No.14110 of 2003, while hearingthe writ petition, it was reported that there is no stock of wastegranite debris along the disputed boundary line. Therefore, the causeof action for maintaining the said writ petition does not survive.Relying upon the said order passed, it is stated in the counteraffidavit that there is a natural water course surrounding thewestern boundary of the field except S.F.No.382 of the petitioner,which is connected to nearby pond where the evacuated water is nowletting into. The said odai was damaged due to the mining activitiestaken up by the petitioner in his lease hold area of S.F.No.382 anddue to the breach in the odai, the rain water which is supposed toreach the pond through the odai has entered the land of thepetitioner in S.F.No.382 and thereafter, entering into the quarrysite of the TAMIN in Survey No.383/1 also. 6. It is further stated that due to the violation and statutorysafety rules by not maintaining the safety zone of 7.5 metres ascommon boundary between the two mining leases, the rain water isstanding as a single water body connecting both the survey fields ofS.F.No.382 of the petitioner and 383/1 of TAMIN and in the absence ofany barricade between the two fields, TAMIN could not separate thewater in S.F.No.383/1, which is practically not possible. The aboveviolation of the statutory safety rules by the petitioner, whiledoing quarrying operation of his land, is the cause of action forwater seepage. The third respondent has prayed for dismissal of theabove writ petition. 7. I have heard the learned counsel for the petitioner as wellas the learned counsel for the respondents.8. Admittedly, the third respondent was granted permission toquarry in S.F.No.383/1. There is a dispute with regard to not leaving7.5 metres as a common boundary between the two mining leases by thepetitioner and the third respondent. The petitioner has not left out https://hcservices.ecourts.gov.in/hcservices/ the safety zone as prescribed in Rule No.111 of the MetalliferousMines Regulations, 1961. Therefore, the rain water is standing as asingle water body. The third respondent's contention is that due tothe fault of the petitioner in not following the statutory safetyrules and not leaving the safety zone while he was doing quarryingoperation in his land, the water logging has occurred. Thus, thefacts are in dispute. If the facts are in dispute, no writ petitionis maintainable under Article 226 of the Constitution of India andthe aggrieved person can approach the appropriate authority or thecivil Court to redress his grievance, if any.9. Whether the High Court is entitled to go into the disputedquestions of fact in a writ petition filed under Article 226 ofConstitution of India, is already decided by the Honourable SupremeCourt.(a)In (1976) 1 SCC 292 (Arya Vyasa Sabha and Others v. TheCommissioner of Hindu Charitable and Religious Institutions &Endowments, Hyderabad and Others) the view taken by the High Courtthat disputed questions of fact are to be left open to be decidedbefore the Civil Court was upheld by the Supreme Court.(b)In the decision reported in (2003) 4 SCC 317 (RourkelaShramik Sangh v. Steel Authority of India Ltd. and Another) it isheld that the disputed questions of fact could not be entertained inthe writ proceedings. In paragraph 19, the Supreme Court held asfollows:"19.The question as to whether the workmenconcerned had been continuously working for aperiod of ten years so as to enable them to derivebenefit of the judgment of this Court in R.K.Pandacase ((1994) 5 SCC 304) was essentially a questionof fact. ......"In paragraph 22, the Honourable Supreme Court further held asfollows:"22....... a disputed question of factnormally would not be entertained in a writproceeding. This aspect of the matter has alsobeen considered by a Constitution Bench of thisCourt in Steel Authority of India Ltd. v.National Union Waterfront Workers ((2001) 7SCC 1). ........."(c)In (2006) 9 SCC 256 (Himmat Singh v. State of Haryana andOthers), the Honourable Supreme Court held that 'the statement of theappellant or the 5th respondent was correct or not could notordinarily be tested in writ proceedings and it is well known that in https://hcservices.ecourts.gov.in/hcservices/ writ petition ordinarily such a disputed question of fact could notbe entertained'.(d)In yet another decision reported in (2007) 7 MLJ 687 (FoodCorporation of India v. Harmesh Chand), the Supreme Court held asfollows:"Since the facts were seriously disputedby the appellant and no factual finding couldbe recorded without consideration of evidenceadduced by the parties, it was not anappropriate case in which the High Court oughtto have exercised its writ jurisdiction. Theparties could have approached a civil court ofcompetent jurisdiction to adjudicate thematter."10. The Supreme Court in the decision reported in 2009 (1)SUPREME 52 (Ranjit Singh vs. State of Punjab and Others) also taken asimilar view.11. In view of the admitted position that there are factualdisputes in this case, the writ petition filed seeking the mandamuscannot be maintained and consequently, the writ petition isdismissed. If the petitioner's right is aggrieved, it is open to thepetitioner to move the appropriate forum or the civil Court tovindicate his grievance. No costs. Connected miscellaneous petitionis also dismissed. sd/-Asst.Registrar/true copy/Sub Asst.RegistrarkbTo1. The Secretary Government of Tamil Nadu Industries Department Fort St. George Chennai – 600 009.2. The District Collector Krishnagiri District Krishnagiri. https://hcservices.ecourts.gov.in/hcservices/

3. The Chairman cum Managing Director Tamil Nadu Minerals Limited Tamin House, Chennai – 600 005.4. The Divisional Manager Tamil Nadu Minerals Limited D.R.G. Madhapalli Post Krishnagiri Taluk, Krishnagiri District.+ 1 c.c. to Ms. A.V. Bharathi, Advocate. S.R.No.22823.+ 1 c.c. to Mrs. P. Selvi, Advocate. S.R.No.23172.+ 1 c.c. to The Government Pleader. S.R.No.22974. ORDER IN W.P.NO.23779 OF 2008 & M.P.NO.1 OF 2008MG (CO)SRA 25.06.2009.