IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16/09/2010 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.7671 OF 2009 AND M.P.NO.1 OF 2009 Vijayalakshmi Nallasamy ... Petitioner Versus 1. State of Tamil Nadu, rep. by the Secretary to Government, Industries (MMC-1) Department, Secretariat, Fort St. George, Chennai – 600 009. 2. The Commissioner of Geology and Mining, Industrial Estates, Guindy, Chennai – 600 032. 3. The District Collector, Erode District, Erode-11 ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, calling for the records of the second respondent culminated in and by his proceedings in Rc.No.15001/MM2/2008, dated 11.11.2008, quash the same and consequently direct to issue quarry lease to the petitioner for survey numbers 80/5,6, 82/1B, 1E, 1F, 82/2,3,4, 83/4,5, 85/1,2,3,4 and 86/1,2 in Kandhampalayam Village, Perundurai Taluk, Erode District. For Petitioner : Mr.Vijay Narayan Senior Counsel for Mr.V.S.Kesavan For Respondents: Mrs.Lita Srinivasan Government Advocate O R D E R The petitioner has filed the present writ petition seeking to quash the order dated 11.11.2008 of the second respondent and for a consequential direction to the respondents https://hcservices.ecourts.gov.in/hcservices/ to issue her quarry lease for Survey numbers 80/5,6, 82/1B, 1E, 1F, 82/2,3,4, 83/4,5, 85/1,2,3,4 and 86/1,2 in Kandhampalayam Village, Perundurai Taluk, Erode District. 2.The case of the petitioner is as follows: (a) The petitioner is residing at No.16, Indragandhi Street, Palayapalayam Road, Erode Town, Erode Taluk. She made an application dated 02.03.2007 to the third respondent for rough stone and gravel quarrying lease for 10 years in Survey Nos.80/5,6, 82/1B, 82/1E, 1F, 82/2,3,4, 83/4,5, 85/1,2, 85/3,4, 86/1 and 86/2 over an extent of 6.83.50 hectares in Kandampalayam Village, Perundurai Taluk of Erode District. According to her, the said application was for renewal of lease, as she has been quarrying the fields from the year 1986. The last lease was for the period from 22.04.2002 to 21.04.2007. Hence, she made the said application dated 02.03.2007 for renewal. (b) Since no order was passed by the third respondent on the renewal application made by the petitioner, she filed a Writ Petition in W.P.No.6828 of 2008, seeking for a direction to the respondents to consider her application and to issue fresh license. This Court passed an order dated 19.03.2008 directing the third respondent herein, to dispose of her application on merits and in accordance with law, within a period of 10 weeks from the date of receipt of a copy of the said order. (c) Pursuant to the order dated 19.03.2008 passed in W.P.No.6828 of 2008, the third respondent herein conducted an enquiry on 08.04.2008. In the said enquiry, the petitioner appeared in person. She explained that licenses of two other adjoining quarry operators namely, M/s.Sudakar Constructions and M/s.Sri Sai Constructions, were suspended initially and that pursuant to the order of this Court in W.A.No.1529 of 2007 preferred by M/s.Sudakar Constructions, an Advocate Commissioner was appointed and based on the report of the Advocate Commissioner, test blast was conducted by the Professors of Anna University and based on the report of the test blast, the suspension of licenses of those quarry operators were revoked. Hence, she requested the third respondent to grant her lease as requested in her application dated 02.03.2007. (d) The third respondent passed an order dated 16.06.2008 rejecting the application dated 02.03.2007 made by the petitioner. (e) Against the said order dated 16.06.2008 of the third respondent, the petitioner filed a writ petition in W.P.No.15566 of 2008 before this Court. This Court, on 10.09.2008 https://hcservices.ecourts.gov.in/hcservices/ passed an order, directing the petitioner to prefer appeal before the Director of Geology and Mining, the second respondent herein, on or before 19.09.2008. (f) Accordingly, the petitioner preferred an appeal before the second respondent. The second respondent passed the impugned order dated 11.11.2008, remanding the matter to the third respondent herein and directing the third respondent to consider the application afresh, after getting detailed report from the Assistant Director of Mines and clearance certificate from PWD authorities of LBP canal. Hence, this writ petition. 3.Heard Mr.Vijay Narayan, learned Senior counsel for the petitioner and Mrs.Lita Srinivasan, learned Government Advocate for the respondents. The second respondent filed counter affidavit. 4.The learned senior counsel for the petitioner submitted that the second respondent is not correct in ordering test blast in the impugned order dated 11.11.2008, as no test blast is provided under any Statute or Rules. The test blast conducted by the Professors of Anna University Professors was pursuant to the order of this Court dated 07.01.2008 passed in W.A.No.1529 of 2007, based on the report of the Advocate Commissioner. Hence, that cannot be a reason for ordering test blast by the second respondent, while passing the impugned order dated 11.11.2008. Further, it is submitted that when the suspension of quarry licenses were revoked in the case of adjacent quarry operators viz., M/s.Sudakar Constructions, M/s.Sri Sai Constructions and Mr.Kirubasankar, based on the test blast conducted pursuant to the order dated 03.12.2007 in W.A.No.1529 of 2007 preferred by M/s.Sudakar Constructions, there is no necessity for conducting of another test blast for granting lease to the petitioner. It is also submitted that the test blast costs about Rs.10,00,000/-. The second respondent is not justified in ordering a test blast as a condition for grant of lease. The learned senior counsel did not assail the other conditions imposed by the second respondent. 5.On the other hand, the learned Government Advocate submitted that the application dated 02.03.2007 of the petitioner is for fresh license and not for renewal of lease. The learned Government Advocate submitted that when the test blast was conducted relating to the quarry operations of M/s.Sudakar Constructions, pursuant to the order dated 03.12.2007 passed in W.A.No.1529 of 2007, the same was erroneously applied to M/s.Sri Sai Constructions and Mr.N.Kirubasankar and the suspension imposed on their quarry operations were also revoked. It is https://hcservices.ecourts.gov.in/hcservices/ further submitted that the vibrations caused by the blast affects the Lower Bhavani Project Canal (in short "LBP Canal") as the quarries of M/s.Sri Sai Constructions and Mr.N.Kirubasankar were operated near to the LBP Canal, while the quarry operation of M/s.Sudakar Constructions was far away from the LBP Canal. Hence, there was no renewal of lease and they are not operating the quarries, when the lease period of M/s.Sri Sai Constructions and Mr.N.Kirubasankar expired on 16.11.2008 and 24.08.2008 respectively. The learned Government Advocate further submitted that while the quarry operations of M/s.Sudakar Constructions are far away from LBP canal, the lands, where the petitioner seeks to quarry, lie just adjacent to the LBP canal and she relied on the relied on the village sketch enclosed at page No.51 of the typed set of the petitioner in this regard. She also referred to the report of the Advocate Commissioner appointed by an order dated 03.12.2007 in W.A.No.1529 of 2007. 6.The learned Government Advocate submitted that since the quarry operations sought to be carried out by the petitioner is near to the LBP canal and since there are serious complaints from the public, the second respondent was justified in ordering a test blast. She also submitted that the fee for the test blast is only Rs.86,000/- as per the record and that therefore, the claim of the learned senior counsel for the petitioner that test blast costs Rs.10,00,000/-, is exaggerated. 7.I have considered the submissions made on either side and perused the materials available on record. 8.The only objection of the learned senior counsel for the petitioner is relating to the order of the second respondent for test blast. 9.The quarry of M/s.Sudakar Constructions is located in Survey Nos.245/1 and 245/2 of Mullampatti Village and they were granted lease for quarrying operations for the period from 26.12.2006 to 25.12.2011. M/s.Sri Sai Constructions was carrying on quarry operations in Survey No.84/1 and they were granted lease for quarrying operations for the period from 17.11.2006 to 16.11.2008. Likewise, Mr.N.Kirubasankar, the son of the petitioner, was carrying on quarry operations in Survey Nos.83/3 and 85/3 and he was granted lease for quarrying operations for the period from 21.04.2003 to 20.04.2008. These details are found from the report of the Advocate Commissioner that is filed in the typed-set of the petitioner. 10.When M/s.Sudakar Constructions, M/s.Sri Sai Constructions and Mr.N.Kirubasankar were carrying on quarrying https://hcservices.ecourts.gov.in/hcservices/ operations, there were complaints against them that they used high intensity explosives causing damage to the LBP canal, residential buildings as well as to the cattle. Based on those complaints, their licenses ware suspended. 11.M/s.Sudakar Constructions questioned the order suspending the license and the matter was taken to the Division Bench of this Court in W.A.No.1529 of 2007. The Division Bench of this Court appointed an Advocate Commissioner on 03.12.2007 and the Advocate Commissioner submitted a report on 15.12.2007. In the said report, the Advocate Commissioner suggested for a test blast. Based on the same, the Division Bench of this Court passed an order dated 07.01.2008 in W.A.No.1529 of 2007 for a test blast. Thereafter, the Professors of the Department of Mining Engineering from Anna University, conducted a test blast. Based on the report of the test blast, not only the order of suspension of lease of M/s.Sudakar Constructions was revoked on 21.02.2008, but also the orders of suspension of lease of M/s.Sri Sai Constructions and Mr.N.Kirubasankar were also revoked, by the orders dated 12.03.2008 and 26.03.2008, respectively. The revocation of suspension orders were relied on heavily by the learned senior counsel for the petitioner. 12.The learned senior counsel for the petitioner also relied on Clause 9 (iv) of the conclusions and recommendations of the test blast report. Clause 9(iv) of the test blast report is as follows: "The present studies also indicate that there is no effect of blast vibrations on Lower Bhavani Canal". 13.According to the learned senior counsel for the petitioner, since there is no statutory provision for ordering test blast for grant of lease to quarry operations, there is no justification for the second respondent to order test blast. 14.The distance between the quarry site of M/s.Sudakar Constructions and the LBP canal is 222 meter, as found in the report of the Advocate Commissioner. But the Advocate Commissioner stated that the Survey Nos.83 and 84 are just along the banks of the LBP canal. That is, the quarry sites of M/s.Sri Sai Constructions and Mr.N.Kirubasankar were adjacent to the LBP Canal. Para-V of the report of the Advocate Commissioner is extracted here-under in this regard: "V.Topography: https://hcservices.ecourts.gov.in/hcservices/ 5.The quarry is located in S.No.245/1 and 245/2 of Mullampatti Village. The northern end of the quarry site is 222 meters from the Lower Bhavani Project (LBP) canal which is an irrigation canal. This distance was physically verified by a measuring tape with the assistance of the Head Surveyor. To the east of the said quarry site running alongside the LBP canal are two other quarries in S.Nos.83/2 and 85/3 run by one Kripashankar S/o Nallasami and another in S.No.84/1 by one Sri Sai Constructions. Since all the three quarry sites are adjacent to each other there are huge valley like craters in the lands alongside the LBP canal. Survey Nos.83 and 84 are located just along the banks of the LBP canal. While the distance from the quarry of the appellant from the national highway will be approximately 750 to 800 meters the distance from the other two quarries will be less than 200 to 300 meters. These distances have been roughly calculated on the basis of the field map provided by the Head Surveyor drawn to a scale of 1 mm / 5000 mm." 15.At this juncture, it is relevant to note that the petitioner sought lease to quarry in her lands at Survey Nos.80/5, 80/6, 82/1B, 82/1E, 82/1F, 82/2, 82/3, 82/4, 83/4, 83/5, 85/1, 85/2, 85/3, 85/4, 86/1 and 86/2 over an extent of 6.83.5 hectares in Kandampalayam Village, Perundurai Taluk of Erode District. The survey numbers are adjacent to the LBP canal, as per the Village Sketch enclosed at page No.51 of the typed-set of the petitioner. The sketch makes it very clear that while the quarry site of M/s.Sudakar Constructions is far away from the LBP canal, the survey numbers referred to above by the petitioner in her application dated 02.03.2007 are very near to the LBP canal. The report of the Advocate Commissioner referred to above and the Village Sketch make it clear that the lands of the petitioner, where she seeks license for quarrying operations, are very near to the LBP canal. 16.Further, as rightly contended by the learned Government Advocate, the application dated 02.03.2007 was not for renewal of license, as argued by the learned senior counsel for the petitioner, whereas the said application was for a fresh lease. In fact, in the affidavit, at one place it is stated that the petitioner sought direction to the third respondent to consider her application for issuance of fresh license and at https://hcservices.ecourts.gov.in/hcservices/ other place, it is stated that the petitioner sought for renewal of lease. It is also seen from the records that the said letter dated 02.03.2007 is meant for fresh lease. 17.In view of the aforesaid facts, I do not find any infirmity in the order of the second respondent ordering for a test blast. I am not in agreement with the submissions made by the learned senior counsel for the petitioner that since the Rules do not provide for test blast, the order of the second respondent ordering for a test blast is without jurisdiction. Particularly, when the lands of the petitioner are very near and along side the bank of the LBP canal, the order of the second respondent ordering for a test blast is fully justified. The other reason given by the learned senior counsel that the suspension of lease relating to M/s.Sri Sai Constructions and Mr.N.Kirubasankar were revoked by orders dated 12.03.2008 and 26.03.2008 respectively, based on the test blast report and that therefore, the same should be applied in the case of the petitioner, is also not acceptable to me. 18.As rightly contended by the learned Government Advocate that while the suspension order was revoked on 12.03.2008 in the case of M/s.Sri Sai constructions, the lease came to end on 16.11.2008 and that thereafter, M/s.Sri Sai Constructions was not granted renewal, likewise, the lease period of Mr.N.Kirubasankar came to end on 20.04.2008, while the suspension was revoked on 26.03.2008 and that thereafter, Mr.N.Kirubasankar was not granted renewal. According to the learned Government Advocate, the lease was not renewed in their cases, as their quarry operations were conducted adjacent to the LBP Canal. 19.As rightly contended by the learned Government Advocate that besides conducting test blast, the third respondent should get a specific clearance from the PWD authorities, as the quarry operations are to be carried on near LBP canal. 20.The submissions of the learned senior counsel for the petitioner that subsequent non-grant of further lease, after the expiry of lease period, is not the relevant factor and the revocation of the suspension of lease, is the relevant factor and that therefore, the same should be applied in the case of the petitioner, is not acceptable to me. The revocation of suspension orders in the case of M/s.Sri Sai Constructions and Mr.N.Kirubasankar could not relied on by the learned senior counsel for the petitioner, since the test blast was confined only to M/s.Sudakar Constructions. https://hcservices.ecourts.gov.in/hcservices/ 21.In my considered view, the third respondent was not correct in revoking the orders of suspension in the case of M/s.Sri Sai Constructions and Mr.N.Kirubasankar, based on the test blast report relating to M/s.Sudakar Constructions, particularly, when the quarry operations carried on by them were near to the LBP canal. M/s. Sri Sai Constructions and Mr.N.Kirubasankar did not proceed further against the suspension of lease imposed against them, whereas M/s.Sudakar Constructions alone questioned the suspension. The Village Sketch which is enclosed at page No.51 of the typed-set of the petitioner shows that the quarry site of M/s.Sudakar Constructions are far away from LBP canal, when compared with the quarry sites of M/s.Sri Sai Constructions and Mr.N.Kirubasankar. The lands of the petitioner, where she seeks to have quarry operations are also adjacent to and along side the LBP canal, as seen from the sketch produced by the petitioner. Hence, I am not inclined to interfere with the impugned order dated 11.11.2008 of the second respondent and the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. RNS/TK To 1. The Secretary to Government Government of Tamil Nadu Industries (MMC-1) Department Secretariat, Fort St. George, Chennai – 600 009. 2. The Commissioner of Geology and Mining Industrial Estates, Guindy, Chennai – 600 032. 3. The District Collector Erode District, Erode-11. 1 cc to the Government Pleader, Sr. 68164 1 cc to Mr.V.S. Kesavan, Advocate, Sr,. 68360 GG (CO) KK 24/9 W.P.NO.7671 OF 2009 https://hcservices.ecourts.gov.in/hcservices/