IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.6.2009 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR WRIT PETITION NO.23779 OF 2008 AND M.P.NO.1 OF 2008 B.C. Krishnan ..Petitioner Vs. 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. ..Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus forbearing the respondents 3 and 4 from carrying out any mining operation in S.No.383/1 in Sendarapalli Village, Krishnagiri Taluk, Krishnagiri District till providing safeguards to the petitioner's right to enjoy his adjacent patta lands. For Petitioner : Ms. P. Selvi For R1 and R2 : Mr. K. Balakrishnan, AGP For R3 and R4 : Ms. A.V. Bharathi https://hcservices.ecourts.gov.in/hcservices/ O R D E R The prayer in this writ petition is to issue a Writ of Mandamus forbearing the respondents 3 and 4 from carrying out any mining operation in S.No.383/1 in Sendarapalli Village, Krishnagiri Taluk, Krishnagiri District, till providing safeguards to the petitioner's right to enjoy his adjacent patta lands. 2. The case of the petitioner is that he is the owner of the lands in Survey Nos.382/7A, 8, 9A, 9B, 9C, 10, 11, 5B, 6C and 7B in patta Nos.1131 and 744. According to the petitioner, the said lands were purchased by various Sale Deeds and the total extent of land is 10 acres 27 cents and in the said Survey No.382, the petitioner carried the quarrying operation after obtaining permission from the authorities and the lease period is already over. After expiry of the lease period, according to the petitioner, he is doing agricultural work in his patta lands. Adjacent to the above said lands, there is a Government poromboke land in Survey No.383/1 and the Tamil Nadu Minerals Limited got lease of the said lands for quarrying. The fourth respondent is in charge of the quarrying operation, who has entrusted the same to the private contractors. The petitioner in his affidavit stated that he has no grievance for doing quarrying operation after leaving the safety distance from the boundary line, however, the TAMIN had not provided the safety distance. The petitioner earlier filed W.P.No.32076/2002 and by order dated 2.8.2002 and this Court directed the petitioner to make a representation to the respondents and the respondents were directed to do survey by following Section 10(2) of the Tamil Nadu Survey and Boundaries Act and dispose of the representation on merits. The petitioner submitted a representation before the second respondent and thereafter, survey was conducted and direction was issued to TAMIN to lay the survey stones and to remove the wastages dumped there. It is also averred in the affidavit that the TAMIN without complying with the directions started quarrying operation and therefore, the petitioner filed a writ petition for a mandamus forbearing the respondents from carrying out any mining operation without complying with the statutory requirements, such removal of wastages, which were dumped in the patta lands of the petitioner and for demarcation of the boundary line by laying survey stones. This Court granted interim injunction originally, which was subsequently vacated and appointed an Advocate Commissioner to find out the dividing line for the limited purpose and report as to whether TAMIN has dumped any waste materials and if available, the quantity of such dumped materials. 3. The learned Advocate Commissioner filed an interim report saying that there are dumped waste materials in the petitioner's patta lands and prayed for further time to fix the boundary line. According to the petitioner, in the meanwhile, the lease granted to the 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 first respondent dated 14.1.2008. After dismissal of the above writ petition, the petitioner has now filed this writ petition with the above said prayer. 4. The third respondent has filed a counter affidavit by stating that the extent of land owned by the petitioner is only 8.02 acres and not 10.27 acres as claimed. It is denied in the counter affidavit that no direction was issued to the TAMIN to remove the dumped waste materials as there was no dumping of waste materials in the petitioner's patta lands. The petitioner prevented the Government machinery when the team of surveyors attempted to survey the lands on 18.6.2003 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 writ petition filed earlier, namely, W.P.No.14110 of 2003, while hearing the writ petition, it was reported that there is no stock of waste granite debris along the disputed boundary line. Therefore, the cause of action for maintaining the said writ petition does not survive. Relying upon the said order passed, it is stated in the counter affidavit that there is a natural water course surrounding the western boundary of the field except S.F.No.382 of the petitioner, which is connected to nearby pond where the evacuated water is now letting into. The said odai was damaged due to the mining activities taken up by the petitioner in his lease hold area of S.F.No.382 and due to the breach in the odai, the rain water which is supposed to reach the pond through the odai has entered the land of the petitioner in S.F.No.382 and thereafter, entering into the quarry site of the TAMIN in Survey No.383/1 also. 6. It is further stated that due to the violation and statutory safety rules by not maintaining the safety zone of 7.5 metres as common boundary between the two mining leases, the rain water is standing as a single water body connecting both the survey fields of S.F.No.382 of the petitioner and 383/1 of TAMIN and in the absence of any barricade between the two fields, TAMIN could not separate the water in S.F.No.383/1, which is practically not possible. The above violation of the statutory safety rules by the petitioner, while doing quarrying operation of his land, is the cause of action for water seepage. The third respondent has prayed for dismissal of the above writ petition. 7. I have heard the learned counsel for the petitioner as well as the learned counsel for the respondents. 8. Admittedly, the third respondent was granted permission to quarry in S.F.No.383/1. There is a dispute with regard to not leaving 7.5 metres as a common boundary between the two mining leases by the petitioner 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 Metalliferous Mines Regulations, 1961. Therefore, the rain water is standing as a single water body. The third respondent's contention is that due to the fault of the petitioner in not following the statutory safety rules and not leaving the safety zone while he was doing quarrying operation in his land, the water logging has occurred. Thus, the facts are in dispute. If the facts are in dispute, no writ petition is maintainable under Article 226 of the Constitution of India and the aggrieved person can approach the appropriate authority or the civil Court to redress his grievance, if any. 9. Whether the High Court is entitled to go into the disputed questions of fact in a writ petition filed under Article 226 of Constitution of India, is already decided by the Honourable Supreme Court. (a) In (1976) 1 SCC 292 (Arya Vyasa Sabha and Others v. The Commissioner of Hindu Charitable and Religious Institutions & Endowments, Hyderabad and Others) the view taken by the High Court that disputed questions of fact are to be left open to be decided before the Civil Court was upheld by the Supreme Court. (b) In the decision reported in (2003) 4 SCC 317 (Rourkela Shramik Sangh v. Steel Authority of India Ltd. and Another) it is held that the disputed questions of fact could not be entertained in the writ proceedings. In paragraph 19, the Supreme Court held as follows: "19. The question as to whether the workmen concerned had been continuously working for a period of ten years so as to enable them to derive benefit of the judgment of this Court in R.K.Panda case ((1994) 5 SCC 304) was essentially a question of fact. ......" In paragraph 22, the Honourable Supreme Court further held as follows: "22. ...... a disputed question of fact normally would not be entertained in a writ proceeding. This aspect of the matter has also been considered by a Constitution Bench of this Court in Steel Authority of India Ltd. v. National Union Waterfront Workers ((2001) 7 SCC 1). ........." (c) In (2006) 9 SCC 256 (Himmat Singh v. State of Haryana and Others), the Honourable Supreme Court held that 'the statement of the appellant or the 5th respondent was correct or not could not ordinarily 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 not be entertained'. (d) In yet another decision reported in (2007) 7 MLJ 687 (Food Corporation of India v. Harmesh Chand), the Supreme Court held as follows: "Since the facts were seriously disputed by the appellant and no factual finding could be recorded without consideration of evidence adduced by the parties, it was not an appropriate case in which the High Court ought to have exercised its writ jurisdiction. The parties could have approached a civil court of competent jurisdiction to adjudicate the matter." 10. The Supreme Court in the decision reported in 2009 (1) SUPREME 52 (Ranjit Singh vs. State of Punjab and Others) also taken a similar view. 11. In view of the admitted position that there are factual disputes in this case, the writ petition filed seeking the mandamus cannot be maintained and consequently, the writ petition is dismissed. If the petitioner's right is aggrieved, it is open to the petitioner to move the appropriate forum or the civil Court to vindicate his grievance. No costs. Connected miscellaneous petition is also dismissed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar kb To 1. 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 2008 MG (CO) SRA 25.06.2009. https://hcservices.ecourts.gov.in/hcservices/