IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.12.2007 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.Nos.22442, 27972 and 27973 of 2007 M.P.Nos.1, 1 and 1 of 2007 P.Jagannathasamy ... Petitioner in all W.Ps. vs. 1. The District Collector, Coimbatore District, Coimbatore. 2. The Assistant Director of Geology and Mines, Collector Office, Coimbatore. ... Respondents 1 and 2 in all W.Ps. 3. Jeyalakshmi ... 3rd respondent in W.P.Nos.22442 & 27973/07 4. Elangovan ... 4th respondent in WP.22442/07 ... 3rd respondent in WP.27972/07 5. The Village Administrative Officer, Myvadi Village, Udumalpet Taluk, Coimbatore District. ... 4th respondent in W.P.Nos.27972 & 27973/07 Prayer in W.P.No.22442 of 2007: Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus, directing the respondents 1 and 2 to prevent quarrying of any mineral in Survey Numbers 513 and 519 of Myvadi Village, Udumalpet Taluk, Coimbatore District by the respondents 3 and 4 or their men or agents or anyone claiming through them or by any other person and consequently to take immediate action to cancel any quarry lease or licence if already granted to the respondents 3 and 4 or any other person in respect of the lands in Survey Numbers 513 and 519 of Myvadi Village, Udumalpet Taluk, Coimbatore District. Prayer in W.P.No.27972 of 2007: Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, to call for the records of the first respondent in Na.Ka.No.1266/2005/MM2, dated 28.03.2007, quash the same and direct the respondents to stop all quarry activity in Survey Number 519/1, Myvadi Village, Udumalpet Taluk, Coimbatore District. Prayer in W.P.No.27973 of 2007: Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, to call for the records of the first respondent in Na.Ka.No.2133/2003/MM2, dated 28.03.2007, quash the same and direct the respondents to stop all quarry activity in Survey Number 513/2A, Myvadi Village, Udumalpet Taluk, Coimbatore District. For Petitioners : Mr.P.Srinivas For Respondents : Mr.A.Arumugam, Addl. Govt. Pleader For Respondents 3 & 4 : Mr.Muthappan COMMON ORDER In W.P.Nos.27972 and 27973 of 2007, the petitioner has sought a Writ of Certiorarified Mandamus to quash the lease granted to the quarry operators, viz., Mr.Elangovan, in respect of Survey No.519/1, Myvadi Village, Udumalpet Taluk, Coimbatore District and Mrs.Jeyalakshmi in respect of Survey No.513/2A, Myvadi Village, Udumalpet Taluk, Coimbatore District, as violative of Rule 36 of the Tamil Nadu Minor and Mineral Concession Rules and in W.P.No.22442 of 2007, the petitioner has sought a Mandamus directing the respondents 1 and 2 therein to prevent quarrying of any mineral in the above Survey numbers by the lessees. 2. For the purpose of convenience, contesting parties are described as petitioner and respondents 3 and 4, lessees. As all the three Writ petitions involve the common question of facts and law, they are disposed of by a common order. 3. Brief facts leading to the Writ Petitions are as follows: The petitioner is the owner of the land in Survey No.531/2, Myvadi Village, Udumalpet Taluk, Coimbatore District, to an extent of 3.84.5 Hectares. He has constructed a house in the said land, which is periodically assessed to Property Tax. Apart from occasional dry crops being raised, the land is also used for running a poultry farm to an extent of 25,000 Sq.ft. According to the petitioner, the poultry farm is a specialised farm, for breeding of birds and there are 10,000 breeding birds, each valued at Rs.1,000/-. These birds are not regular meat providers sold in the shops and therefore, they have to be kept in controlled environment, without any disturbance in the form of noise, vibration and pollution. The petitioner has valued the birds for more than Rs.1 crore and for the purpose of breeding, the birds need free and safe environment. 4. The petitioner has further submitted that he has been running the poultry farm for the past 10 years and even in the year 2001, he had put up some additional constructions with an approval of Myvadi Village Panchayat. The petitioner has further submitted that in order to provide proper facilities for breeding of chicks, he had obtained a loan of Rs.8,50,00/- from the Canara Bank and he is repaying the loan periodically from the income derived from the Farm. During the Month of December 2006, after obtaining permission from the Village Panchayat, he has constructed additional sheds for the Birds. 5. The petitioner has further submitted that during the last week of May 2007, respondents 3 and 4 have started quarrying operations by using explosives to burst the stones in Survey Nos.513/2A and 519/1, Myvadi Village, Udumalpet Taluk and it had caused huge noise, vibration, dust and smoke. The birds, which are kept for breeding, were greatly stressed and they suffered extensive injuries due to stampede. The petitioner and his relatives are also afraid of staying in their houses. The petitioner has further submitted that the distance between his land and the quarry site is less than 60 metres and since the quarry operations were carried out within the prohibited distance of 300 metres, as per Rule 36 of the Tamil Nadu Minor and Mineral Concession Rules, he made a representation dated 26.05.2007 to the District Collector, Coimbatore and the Assistant Director of Geology and Mines, Collector Office, Coimbatore, respondents 1 and 2 respectively, to take action against respondents 3 and 4. Aggrieved by the inaction, the petitioner was constrained to file W.P.No.22442 of 2007 for the relief as stated above. In the said Writ Petition, Mrs.Jeyalakshmi, the third respondent, has filed counter affidavit, stating that stone quarry lease was issued by the first respondent on 28.03.2007 for a period of 5 years. After getting the xerox copy of the quarry lease dated 28.03.2007, the petitioner has challenged the same by way of Writ Petition in W.P.No.27973 of 2007. Assailing the above lease agreement, the petitioner has submitted that respondents 1 and 2 have not issued any public notice and that they have not followed the proper procedure under the rules, before granting lease, thereby, depriving petitioner's legitimate rights and it affects the petitioner's right to live under Article 21 of the Constitution of India. He has further submitted that if adequate public notice was given, he would have given his objections. On the same lines the petitioner has challenged the lease granted to Mr.Elangovan, the third respondent in W.P.No.27972 of 2007. 6. Mrs.Jeyalakshmi, the third respondent, in her counter affidavit has submitted that she had applied for stone quarrying operations in patta lands comprised in S.No.513/2A (Part) over an extent of 0.34.0 Hec in Myvadi Village, Udumalai Taluk, Coimbatore District on 06.10.2003 and the District Collector, after obtaining necessary reports from the Revenue Inspector (Mines) as well as the Deputy Director of Geology and Mining and after publishing notice inviting objections from the public, has granted quarrying permission in his proceedings in Na.Ka.No.2133/2003/MM2, dated 28.03.2007 for a period of five years. Pursuant to the grant of permission, a lease deed was executed on 28.03.2007. The third respondent has further submitted that the land in Survey No.531/2 owned by the petitioner is classified as an Agricultural wet lands as per the patta issued to the petitioner. The subject quarry site in S.No.519 is not a new stone quarry and it was in existence from 1995. She has further submitted that there is no "inhabited site" within the prohibited distance of 300 metres from the quarrying site and the surrounding lands are only agricultural lands and under such circumstances, the objections are not tenable. 7. The third respondent has further submitted that as per Rule 36(1-A)(c) of the Tamil Nadu Minor Mineral Concession Rules, no new lay out or building plans shall be permitted to be established within 300 metres from any quarry, unless prior approval is given by the Director of Geology and Mining. If at all any permission or approval is granted by any authority, the same is contrary to the mining rules. The third respondent has further submitted that even assuming that any permission was granted to the petitioner, the same was only for industrial purpose and not for constructing a house. For establishing an Industry for construction of house on an agricultural land, certain procedures have to be followed and to her knowledge, no such permission has been granted to the petitioner by the competent authority in this regard. The third respondent has also submitted that the subject quarry in S.No.519/1 was in operation since 1995 and there was also a stone quarry in S.No.520 in the Government Promboke land for the period from 1999 to 2004, situated between her land and petitioner's land. Quarrying operations were carried on in yet another site is S.No.518, which is closer to petitioner's property. The third respondent has further submitted that since the petitioner could not secure stone quarry lease in respect of lands in Survey No.531/2, with an ulterior motive to prevent her from quarrying, has filed the present Writ Petition and for the reasons, prayed for dismissal. 8. The counter affidavit of Mr.S.Elangovan, fourth respondent herein is on the same lines as that of Jeyalakshmi and therefore, it is not necessary to reproduce the contentions. Apart from common objections, referring to the definition, "Inhabited site" as provided under Rule 36(1-A)(c)(iii) of the Tamil Nadu Minor and Mineral Concession Rules, he has submitted that the lands owned by the petitioner are agricultural wet lands as per the revenue records and the same are not approved as "house site" by any one of the competent authorities, viz., the local body or Town or Country Planning Authority. He has further submitted that there was quarrying in Government Promoboke land in Survey No.520, till 2004 and the said lands are situated closer to the petitioner's land. The petitioner did not make any serious objection over the location of the quarry but has chosen to object to the lease granted to the respondents 3 and 4 and it is nothing but a mala fide. The fourth respondent has submitted that when W.P.No.22442 of 2007 was taken up for hearing, it was brought to the notice of this Court that the petitioner himself had made an application for grant of mining lease in Survey No.513/1 and in order to overcome the objections raised in the Writ Petition, the petitioner has withdrawn his application on 19.07.2007. The fourth respondent has further submitted that mere assessment of house tax for an alleged construction put up by the petitioner on an agricultural land, will not fall within the ambit of "inhabited site", as defined in the Tamil Nadu Minor Mineral Concession Rules. 9. The District Collector, Coimbatore in his counter affidavit has submitted that Smt.Jeyalakshmi, wife of R.Krishnaswamy, was granted quarry lease to quarry rough stone/soil in S.No.513/2A (part) over an extent of 2.88.5 hectares in Myvadi Village, Udumalpet Taluk for a period of 5 years from 28.03.2007 to 27.03.2012, vide proceedings No.2133 of 2005 MM2 dated 28.03.2007. Likewise, Thiru.N.Elangovan, S/0.Nithiyanantham was also granted quarry lease for quarrying rough stone in Survey No.519/1, over an extent of 1.77.5 hectares in Myvadi Vilage, Udumalpet Taluk for a period of 5 years from 28.03.207 to 27.03.2012, vide proceedings No.1266/2005/MM2, dated 28.03.2007. The first respondent has denied the contention of the petitioner that respondents 3 and 4 have started quarrying suddenly. 10. He has further submitted that on receipt of separate applications for grant of quarry lease from respondents 3 and 4, objections were called for from the public by way of public notice duly published by the Village Administrative Officer, Myvadi Village and since no objections were received from any quarters within the stipulated time, respondents 3 and 4 were given separate lease to quarry rough stone in the above said Survey Numbers. The District Collector has further submitted that the petitioner himself had applied for grant of lease to quarry rough stone in Survey No.531/2 (part) over an extent of 0.97.0 hectare in Myvadi Village of Udumalpet Taluk, vide his application dated 12.12.2005 and the same was pending clearance from the Tamil Nadu Electricity Board. At this juncture, it is pertinent to note that the said application was withdrawn by the petitioner later on. The District Collector has further submitted that there is "no inhabited site" within the distance 300 metres and even though petitioner's land in Survey Number 531/2 is situated within the prohibited distance of 300 metres, it does not fall within the definition of "inhabited site". It is the case of the first respondent that the poultry farm said to have been constructed by the petitioner on the strength of approval of Myvadi Village, is not a "house site" under the Tamil Nadu Minor and Mineral Concession Rules. 11. Mr.P.Srinivas, learned counsel for the petitioner submitted that the disputed quarry site is within the prohibited distance of 300 meters, as per Rule 36 of the Minor Mineral Concession Rules. Referring to the receipts issued by the Village Administrative Officer, Myvadi Village for levying House tax for periods 2000-01 and 2001-02 and also the certificate of the Village Administrative Officer, Myvadi Village that there are houses in Survey Nos.513 and 519 of Myvadi Village, Udumalpet Taluk Coimbatore District, learned counsel for the petitioner submitted that the quarry site is in an objectionable place. Inviting the attention of this Court to the Survey Sketch issued by the Revenue Authorities in respect of Survey No.520 of the said village, he submitted that the distance between the quarry site and petitioner's property is within the prohibited distance of 300 metres. 12. Learned counsel for the petitioner further submitted that though the petitioner has made an application for grant of quarry lease in respect of Survey Nos.531/2, but considering the damage that is likely to be caused to the poultry in the event of quarrying operations, he has withdrawn his application on 19.07.1997. He further submitted that even otherwise, the proposal submitted by the petitioner to quarry is located on the eastern end of Survey No.513/2 whereas the poultry farm is located on the western side, the distance between the poultry farm and place proposed by the petitioner is 400 metres away from the poultry farm and therefore, even if the petitioner had pursued the request for stone quarry, that would not affected the poultry. He further submitted that in the absence of any public notice, calling upon the aggrieved person to object to the grant of quarry lease, the grant of stone quarry by the competent authority is arbitrary. 13. Learned counsel for the petitioner further submitted that in the poultry farm, chicken breeding is the primary activity and due to blasting of rocks by using explosives, the birds that are kept for breeding were greatly stressed and the environment is not safe, resulting in loss to the petitioner. In the above circumstances, he submitted that the activities of mining operation at Survey Nos.513 and 519 of Myvadi Village, Udumalpet Taluk, Coimbatore District, have to be stopped by quashing the orders of lease and that a Mandamus to be issued to the official respondents to prevent quarrying. 14. Mr.M.Muthappan, learned counsel for the lessees submitted that the District Collector, Coimbatore, after obtaining necessary report from the Revenue Inspector (Mines) as well as the Deputy Director of Geology and Mining granted stone quarry to the fourth respondent for a period of five years and that the respondents 3 and 4 have commenced their operations from March 2007 onwards. He further submitted that the lands in S.No.520, was already subjected to quarry operation between 1995 and 2000 and the petitioner did not make any objections to the public notice effected by the District Collector before the grant of quarry. He further submitted that the petitioner himself had applied for quarrying lease in respect of very same land in S.No.531/2 and withdrew his application only on 19.03.2007, when it was brought to the notice of this Court. Under such circumstances, with an ulterior motive to prevent the quarry operators from quarrying in the above said Survey Numbers, the petitioner has filed this present Writ Petitions. Learned counsel for the fourth respondent further submitted that the quarrying operations in the subject matter of lands continued from 1995 onwards and the unsuccessful petitioner with a mala fide intention has moved the authorities as well as this Court to prevent the quarry operators from engaging themselves in their lawful business. 15. Learned counsel for the quarry operators further submitted that the land in S.No.531/2 is classified only as an agricultural wet lands, in which, the petitioner has put up his residential house. According to the counsel, no authority would grant permission to construct a house on any agricultural land and even assuming that the petitioner had put up certain constructions, that by itself would not convert the area as an "inhabited site" within the meaning of Tamil Nadu Minor Mineral Concession Rules, 1959. In this context, learned counsel for the fourth respondent stressed that the meaning of words "inhabited site" as provided in the statute should not be extended to few houses constructed without proper planning permission from the local body or any other competent authority. 16. Referring to Rule 36(1-A)(c)(iii) of the Rules, learned counsel for the fourth respondent further submitted that as quarry operation was carried in Survey Nos.513 and 519 of Myvadi Village, Udumalpet Taluk, Coimbatore District, since 1995, the petitioner ought to have obtained a clearance certificate from the competent authority, and in the absence of any planning permission/clearance from the Director of Geology and Mining as contemplated under the Rules, setting up of a poultry farm, is contrary to the Rules and therefore, the petitioner cannot take advantage of his own error and object to the quarry operations of the fourth respondent. 17. As regards house tax receipts issued to the petitioner by Myvadi Village Panchayat, learned counsel for the lessees submitted that mere levy of house tax by the local authority, even for an unauthorised construction, would not legalise an illegality, in the absence of clear classification in the revenue records as a house site. Referring to the Survey sketch appended in the typed set of papers, learned counsel for the fourth respondent submitted that the quarrying operations existed in Survey No.520 in the Government Poromboke land, which is closer to petitioner's land in Survey Nos.531/2 of Myvadi Village, Udumalpet Taluk, Coimbatore District and the petitioner had never objected to such operation. He further submitted that the petitioner, having failed in his attempt to secure a lease for quarrying in respect of lands in the above said Survey Number, has filed the present Writ Petitions with an ulterior motive. Therefore, he submitted that when the petitioner has suppressed the existence of the quarry and not placed the entire facts before this court and hence not entitled to the equitable remedy. 18. Mr.A.Arumugam, learned Additional Government Pleader for the State submitted that on receipt of the application for grant of quarrying lease from the respondents 3 and 4, objections were called for, from the public by way of public notice in the village by the Village Administrative Officer and since no objections were received within the stipulated time, quarry lease was given to respondents 3 and 4 in the above mentioned Survey Numbers. He further submitted that when the petitioner had failed to make objections before the competent authority at the time of calling for objections, he has no locus standi to challenge the lease granted by the first respondent. 19. Learned Additional Government Pleader further submitted that the construction of the poultry farm on an agricultural land would not fall within the preview of the definition of "inhabited site" as defined under the Rules. He also submitted that the petitioner himself has applied for grant of quarry lease for quarrying rough stones in Survey No.531, vide his application dated 12.12.2005 and therefore, he submitted that as the intention of the petitioner is not genuine, but only to prevent the quarrying operations by the respondents 3 and 4 and he prayed for dismissal of the Writ Petition. 20. During the course of hearing of these Writ Petitions, this Court directed the learned Additional Government Pleader to verify and submit that there was any quarrying operation in Survey No.520 in the same village, said to be located close to the petitioner's property in Survey No.531/2 and whether any objections were received from the petitioner in respect of quarry in the above said Survey Number. The said direction was given in the light of the submissions made by the learned counsel appearing for the lessees that though Survey No.520 of Myvadi Village was located close to petitioner's property, he has not objected to the said quarry and only with a mala fide intention, the petitioner has raised objections only against respondents 3 and 4. 21. Pursuant to the above directions, learned Additional Government Pleader, produced a letter dated 27.10.2007, addressed to Special Government Pleader, High Court, Madras, in which, it is stated that Survey No.520 of Myvadi Village, is a Government land, measuring an extent of 4.32.0 hectares. Since high tension power lines are passing over the above Survey field, an extent of 0.80.0 Hectares alone were brought for tender cum auction and the same has been leased out to Thiru.P.Ponnusamy for quarrying rough stone, vide proceedings in Rc.No.459 of 1999, dated 01.04.1999 for a period of 5 years and the lease period was expired on 31.03.2004. After the expiry of lease, the above area has not been leased out for quarrying purposes. The copy of the Collector's proceedings dated 01.04.1999 granting permission to quarry and the copy of F.M.B. Sketch of S.F.No.520 are also enclosed along with letter. Heard the counsel appearing for the parties and perused the materials available on record. 22. Let me first consider the main objection of the petitioner that the quarry site in Survey Nos.513 and 519 of Myvadi Village are located within 300 metres from an"inhabited site" as defined under the Tamil Minor Mineral Concession Rules, 1959. 23. The general restrictions in respect of quarrying operations by the permit holder or the lessee as stated in Rule 36 of the Tamil Nadu Minor Mineral Concession Rules, 1989, is as follows: "36. General restrictions in respect of quarrying operations:- (1) The quarrying permit holder or the lessee or their men shall not work or carry on or allow to be worked or carried on any mining operations at or to any point within a distance of 50 metres from any railway line except with the previous written permission of the Railway administration concerned or under or beneath any ropeway or any ropeway trestle or station except under and in accordance with the written permission of the authority owning the ropeway or from any reservoir, canal or other public works such as public roads and buildings except with the previous written permission of the Collector of the District or any other officer authorised by the State Government in this behalf and otherwise than in accordance with such instructions, restrictions and conditions, either general or special, which may be attached to such permission. The said distance of 50 metres shall be measured in the case of railway, reservoir or canal horizontally from the outer toe of the bank or the outer edge of the cutting, as the case may be, and in case of building horizontally from the plinth thereof. In the case of village roads, no working shall be carried out within a distance of 10 metres and except with the previous permission of the Collector of the district or any other officer duly authorised by the State Government in this behalf and otherwise than in accordance with such directions, restrictions and additions, either general or special, which may be attached to such permission: Provided that notwithstanding anything contained in any law for the time being in force or any provision in any lease deed or agreement already executed under these rules,