IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.04.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI AND THE HON'BLE MRS.JUSTICE ARUNA JAGADEESAN WRIT APPEAL NO.633 of 2008 and M.P.No.1 of 2008 1.Jubedha Bi 2.Fatima Bi 3.S.A.Habibullah 4.S.Ahmad Hussain 5.M.Kalesha 6.A.Abdul Gaffar 7.Maboo 8.S.Kalesha 9.S.Thameen 10.A.Yousuf 11.Akbar Basha ..Appellants/Petitioners vs. 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.Nandagopal 6. The Revenue Divisional Officer Ponneri Taluk, Tiruvellore District. https://hcservices.ecourts.gov.in/hcservices/ 7. The Tahsildar Gummidipoondi Tiruvellore District. ..Respondents/Respodents Writ Appeal is filed against the order of the learned single Judge made in W.P.No.33518 of 2007 dated 28.04.2008 filed under Article 226 of the Constitution of India to issue a Writ of Declaration that the order of the 2nd respondent dated 27.9.2001 bearing Ref.Rc.No.16709/MM3/2000 is illegal, contrary to the Mines and Minerals (Development and Regulation) Act, 1957 and The Mineral Concession Rules, 1960 and the Tamil Nadu Minor Mineral Concession Rules 1959, consequently direct the respondents from any manner permitting/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 a compensation of Rs.5,00,000/- (Rupees Five Lakhs only) per petitioner together with costs. For appellants : Mr.S.Vaidyanathan for Ms.R.Sudha For respondents: Mr.R.Thirugnanam Special Govt.Pleader for R.1 to 4,6&7 Mr.S.Krishnasamy for R.5 JUDGEMENT P.JYOTHIMANI,J. The unsuccessful writ petitioners before the learned Judge on Writ side has filed this appeal. On a perusal of the records, it is seen that the 5th respondent, Thiru S.Nandagopal, has applied for grant of lease for mining the mineral 'silica sand' from survey No.46/1A and other survey numbers at Elavur village, Gummidipoondi taluk, Tiruvallur District to an extent of 4.16.0 hectares for a period of 20 years. 2. The case of the writ petitioners is that the said land belonged to their forefathers and they have inherited the same after the demise of the original owners. The 5th respondent while filing the application for grant of lease, appears to have sent all the necessary particulars and fulfilled the formalities required including the production of lease deed dated 30.6.2000 stated to have been entered into between the 5th respondent and the petitioners agreeing to lease the land in favour of the 5th respondent. The District Collector, Tiruvallur is stated to have forwarded the said application and all other materials to the Director of Geology and Mining for his remarks. It appears that the Revenue Divisional Officer, 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 entered by the 5th respondent with the petitioners. Further, it appears that the Tahsildar after conducting enquiry and calling for objections for the grant of lease in favour of 5th respondent, has recommended in his report dated 25.7.2000 and 25.8.2000, for the grant of permission for mining silica sand in favour of the 5th respondent. It is also seen that the District Collector in the enquiry, called for objections from the public and there was no objection received in respect of grant of mining lease and it was also reported that there was no permanent structure, but there is an existing Odai on the western side adjacent to survey numbers 46 and 47 of the area applied for mining lease. The District Collector has recommended for the grant of mining lease for the said land cautioning that the safety distance of 10 metres should be left on the western side of the area applied for. 3. A reading of the order of the learned Judge against which the present writ appeal is filed makes it clear that the learned Judge has called for the entire records and gone through the minute details of the records and the technical report submitted by the Assistant Director, Mines, Tiruvallur, wherein it is stated that the area applied 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 area applied for mining lease is not exceeding four times the width of the area applied for and therefore, it satisfies Rule 35 of the Mineral Concession Rules, 1960. In the report it is also stated that the silica sand available in the area applied for is estimated to be above 1,29,150 metric tonnes, after deleting the safety distance area of Odai. There was also a caution given to the effect that adjacent to the Odai, 10 metres should be left out. With the said report, the Assistant Director of Department of Geology and Mining sent recommendations to the Director of Geology and Mining for the grant of lease in favour of the 5th respondent for a period of 20 years subject to the condition that 10 metres distance should be left out adjacent to Odai. 4. There was even a revised technical report dated 11.6.2001, wherein the third respondent had stated that the silica sand is formed due to wind action and silica sand is dull coloured and that it is found to occur below a thin layer of top soil, the thickness of which ranges from ½ to 1 metre. It is further stated that the thickness of silica sand is above 3 metres and it occurs as loose and compact material. The entire area which can be reserved for the same was arrived at 3.93.0 hectares leaving a safety area of 0.23.0 hectares for the Odai and the recovery percentage being taken up as 60% and the reserve has been estimated to be 1,76,850 metric tonnes. Having considered the said report, the second respondent scrutinised the application, in exercise of his powers delegated under G.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 for silica sand for a period of 20 years in favour of the 5th respondent subject to the condition that the safety distance of 10 metres to be left out for the existing Odai on the western side of the area applied for mining lease. 5. The abovesaid facts, which have been culled out by the learned Judge on perusal of the file, make it very clear that the technical requirements as per the Rules have been followed scrupulously. In such view of the matter, it can never be presumed that in the grant of lease in favour of the 5th respondent by the authorities, the provisions of Mines Act as well as Minerals Rules have been violated. 6. Very peculiarly, it is seen that the petitioners have taken a stand as if some of the joint owners have not authorised the 5th respondent to enter into the mining lease. The fact remains that the impugned order was passed as early as 27.9.2001 and admittedly, from the date of the said order the 5th respondent has been carrying on mining operations as per the permission granted by the authorities and it is, only after several years, in 2007, the petitioners have chosen to challenge the impugned order with the peculiar reason that the 5th respondent has not been authorised by some of the owners at all. Even assuming that consent has not been obtained from some of the owners of the property for the purpose of 5th respondent carrying on mining lease, the long silence on the part of the petitioners would itself go to show that they have also accepted the lease in favour of 5th respondent. 7. Further, a perusal of the order of learned Judge also makes it clear that the petitioners have signed the lease deed and the fact that some of the owners have not agreed to give the land on lease would not be a ground to set aside the impugned order, especially when it has been passed after having gone into the minute details as required under law. If really the petitioners are of the view that the 5th respondent has not been granted proper lease as per the contract of lease entered into between them, they have to agitate the same in appropriate forum and it is not open to them to approach this Court under Article 226 of the Constitution of India, as correctly held by the learned Judge in the order. 8. In support of his case, Mr.S.Vaidyanathan, learned counsel for the appellants would place reliance on section 4-A(2) of the Mines and Minerals (Regulation and Development) Act, 1957 which is as follows: " Section 4-A. Termination of prospecting licences or mining leases. https://hcservices.ecourts.gov.in/hcservices/ (1) .... (2) Where the State Government is of opinion that it is expedient in the interest or regulation of mines and mineral development, preservation of natural environment, control of floods, prevention of pollution or to avoid danger to public health or communication or to ensure safety of buildings, monuments or other structures or for such other purposes, as the State Government may deem fit, it may, by an order, in respect of any minor mineral, make premature termination of prospecting licence or mining lease with respect to the area or any part thereof covered by such licence or lease." The said provision only enables the State Government to terminate the contract of lease before the period on various emergent reasons for the purpose of preservation of natural environment, control of floods, prevention of pollution or to avoid danger to public health or communication or to ensure safety of buildings, monuments or other structures etc. The contention of the learned counsel for the appellants is that in view of the enabling provision, the Government should have excluded the land from granting mining lease as the land has been affected by Tsunami. First of all, this was not raised by the petitioners earlier, at any point of time. The petitioners have only challenged the lease granted by the authorities in favour of the 5th respondent. Further, it is for the Government to exercise its discretion 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 above contention of the learned counsel for the appellants. 9. The other ground which is insisted by the counsel for the appellants is that the 5th respondent himself has filed a suit in O.S.No.341 of 2007 on the file of District Munsif, Ponneri and interim injunction was granted by the trial Judge and ultimately, the suit was dismissed for default. Again, that is not a ground to challenge the lease granted in favour of the 5th respondent. The mere dismissal of suit does not take away the rights available to the 5th respondent, if the same have been conferred under the lease entered. As stated above, if the case of the petitioners is that such lease is void in law, it is for them to work out their remedy in appropriate forum and not by invoking Article 226 of the Constitution of India for the purpose of holding that by virtue of section 19 of Mines and Minerals (Regulation and Development) Act, 1957 such contract should be held as void. 10. One other ground raised by the appellant is that the following five persons viz., Tvl. S.Akbar Basha, S.Basheer, (Tmt.) Southan Beevi, Sheik Abdul Khader and Abdul Latiff, owning an extent of 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 and therefore, the grant of licence in respect of the said extent of land should be held invalid. Again, the said contention is not sustainable. As stated above, these are all the matters which cannot be decided by this Court under Article 226 of the Constitution of India since the same require appreciation of evidence. In view of the same, there is no ground to interfere with the order of the learned Single Judge and the writ appeal fails and the same is dismissed. No costs. Connected miscellaneous petition is closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar kh To 1. 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 2008 KJI (CO) GSK 18.04.2009. https://hcservices.ecourts.gov.in/hcservices/