Madras High Court
V.Ganesan vs The District Collector on 19 October, 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19/10/2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)No.10571 of 2007
and
M.P.(MD)No.1 OF 2007
V.Ganesan
... Petitioner
Vs
1.The District Collector,
Tirunelveli.
2.The Deputy Director of Mines and Geology,
Collectorate, Tirunelveli District.
3.The Project Director,
Nuclear Power Corporation of
India Limited (A Govt. of India Undertaking),
Koodankulam, Tirunelveli District.
4.A.K.A.Rajan
.. Respondents
This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the first respondent in M1/39272/06 dated 26.09.2007 quash the same from permitting the fourth respondent from quarrying within 5 Kms. radius of Koodankulam Nuclear Power Plant in violation of G.O.Ms.No.829, dated 29.4.1991.
!For Petitioner ... Mr.T.S.R.Venkatramana
^For Respondents ... Mr.R.Janakiramulu, Spl.G.P. for R1 and 2 Mr.S.Ramasubramaniam for R-3
Mr.S.P.Maharajan for R-4
:ORDER
The petitioner has filed the present writ petition, seeking to set aside the order dated 26.09.2007 wherein and by which the fourth respondent was permitted to quarry. This challenge is on the ground that the quarrying area granted to the petitioner is situated within 5 kms radius of the Koodankulam Nuclear Power plant and such a grant of license is in violation of G.O.Ms.No.829 Public Works Department dated 29.04.1991.
2. Notice of motion was ordered on this writ petition on 14.12.2007. Pending the writ petition, this Court by an order dated 25.11.2008 appointed an Advocate Commissioner to visit the suit property and measure the property with the help of the Surveyor and to submit a report. Subsequently, by a further order dated 28.07.2009, the Taluk Surveyor of Irukkandurai and Koodankulam were directed to be present on 19.08.2009 at Irukkandurai Village in S.Nos.181/1, 183, 184/3, 184/7 and 185 along with respective Field Map Books.
3. The Advocate Commissioner so appointed submitted an interim report dated 10.12.2008 and a final report dated 26.08.2009. In the final report, he had stated that the disputed quarries in S.Nos. 181/1, 183, 184/3, 184/7 and 185 are all situated within the radius of 5 km from the Nuclear Reactor. He also submitted 3 Annexures along with the report.
4. On behalf of the first respondent, a counter affidavit dated 05.11.2008 was filed. The third respondent, Project Director of Nuclear Power Corporation of India Limited had also filed a counter affidavit dated 15.11.2008 together with a typed set of documents containing the copy of minutes of Koodankulam Project Local Committee meeting held on 14.07.2006, 14.02.2007 and 15.02.2008. The fourth respondent quarrying operator had filed a counter affidavit dated 14.09.2008 as well as an additional counter affidavit dated 17.11.2008. He had also filed a typed set of documents dated 23.09.2008
5. The petitioner was a neighbouring land owner. According to the petitioner, by G.O.Ms.No.829 Public Works Department dated 29.04.1991, had prohibited any quarrying operation within 5 kms radius of the Nuclear Power Plant as it comes with the 'Sterilization zone' and any permission for any activity cannot be done without the concurrence of the Koodankulam Project Local Committee. The 4th respondent quarrying operation is not only within the prohibited zone, it will also destroy the Coconut Thoppu owned by him in the Irukkanthurai village. It is also brought to the notice that the Collector did not carry out the earlier order passed by this Court in W.P.No.3293 of 2005 for granting permission.
6. The first respondent in his counter affidavit denied these allegations. In paragraphs 4 and 5, it was averred as folows:-
4.It is respectfully submitted that the area applied for quarry lease was inspected by Tahsildar, Radhapuram, Revenue Divisional Officer, Cheranmahadevi and the Assistant Director of Geology and Mining, Tirunelveli and reported that the above lease applied areas are situated at a distance of 4.8 kilometres from the Atomic Reactor of Koodankulam Atomic Power Plant. Quarry lease for rough stone was granted earlier in favour of Tmt.Sakthi and the quarry lease had expired on 29.10.2003 and after the expiry of the lease Thiru AK.A.Rajan has purchased the above lands and applied for lease. Based on the reports of the field officers, who had recommended the quarry lease, after getting the clearance from Koodankulam Atomic Reactor Project Local Committee's concurrence. The Chairman, Koodankulam Project Local Committee and Project Engineer (Civil) Koodankulam Project, Nagercoil has been addressed as per this office letter No.M.1/39272/06 dated 02.06.2006 with a request to place the subject before "Koodankulam Project Local Committee" for clearance as per G.O.Ms.No.829 PWD Dated 29.04.1991. The Commissioner, Radhapuram Panchayat Union, Radhapuram, in his letter No.A4/3213/04, dated 14.08.2006 has stated that in the meeting of Koodankulam Project Local committee was conducted on 14.07.2006 and in the meeting the proposal of stone quarrying lease in S.F.NO.181/1, 183, 184/3 and 7 of Irukkanthurai Village, Radhapuram Taluk, placed and the committee has approved the grant of this proposal for the period upto 31.12.2007.
5.It is respectfully submitted that considering all the factors framed in the Rules and Acts in force, recommendations of the field officers, concurrence of the Koodankulam Project Local committee as per G.O.Ms.No.829 PWD dated 29.04.1991, the stone quarry lease to quarry rough stone/jelly over an extent of 5.24.0 hectares of patta lands in S.F.No.181/1, 183 and 185 of Irukkanthurai Part II Village, Radhapuram taluk, has been granted to the applicant and 4th respondent of this writ - Thiru AK.A.Rajan, son of A.Kirubanathi, 58, Veeramani Nagar, Kovilambakkam, Chennai -117 as per the Collector, Tirunelveli's order No.M.1/39272/06 dated 26.09.2006 for a period of five years from the date of execution of lease subject to the further approval of the Koodankulam Project Local committee, Koodankulam beyond 31.12.2007. Subsequently, the clearance of the local committee is being granted by the committee every year. Now the committee has given its clearance upto 28.02.2009. This is intimated by the Block Development Officer, Radhapuram vide his letter No.A4/3213/02 dated 18.09.2008.
7. The third respondent Nuclear Power Corporation of India Limited, in their counter affidavit in paragraphs 9 and 10 averred as follows:- "9. ...The Kudankulam Local Committee met at Block Development Office on 14.07.2006. In that meeting, out of 07 members only 05 numbers of Committee members were present as per G.O. The Committee members recommended for Quarry Licence to Mr.A.K.A.Rajan under Survey No.181/1, 183, 184/3 and 184/7 at Irukkandurai Village up to a period of 31.12.2007. On 14.02.2007, Mr.A.K.A.Rajan (4th respondent) again applied for Quarry Mining under Survey No.181/2B. The Kudankulam Local Committee Members gave permission up to 28.02.2008 with a condition that if need arises within a short notice of one month the Quarry operation need to be suspended. On 15.02.2008, the Kudankulam Local Committee had given only an extension for a further period up to 28.02.2009.
10. Since Natural Growth cannot be prevented, Housing and Shops Construction requests are being normally recommended by the Kudankulam Local Committee. However, for some of the Quarry operation, it is also recommended by the Kudankulam Local Committee with an observation that the safety care has to be adhered without disturbing the nearby areas of the villagers. Based on the Dy.Director of Mines and Geology review and clearance in all these issues, an ultimate decision is being taken by the Collector after giving an opportunity of being heard by the affected persons as per G.O."
8. The Resolution of the Koodankulam Project Local committee dated 15.02.2008 produced in the typed set found at Pages 23 to 33 in Resolution No.5 has granted 'No Objection'. The Quarry operator in his additional counter affidavit had also raised the plea of alternative remedy for the petitioner to move in terms of Section 36-C(2) of the Tamil Nadu Minor Mineral Concession Rules ,1959. He also denied that there was any violation in the quarrying operation to be carried out by him.
9. With reference to the violation of the order passed by this Court in W.P.No.3293 of 2005, in Paragraph 11 of the counter, the District Collector, Tirunelveli had stated as follows:-
11. It is submitted that the order of the High Court of Madras, Madurai Bench, Madurai, in W.P.No.3293/2005 and Director of Geology and Mining, Chennai dated 01.06.2005 does not relate to this issue. In this case after obtaining the approval of the Koodankulam Project Local committee as per G.O.Ms.No.829 dated 29.04.1991, the stone quarry lease had been granted subject to further approval o the committee beyond 31.12.2007 and every year committee reviews its permission. No objection petitions was received on publication of 'A1" Notice in the village and the writ petitioner is the one and only person raising objection that to after a lapse of nearly two years from the date of grant of quarry lease in this area. Further it is state that no quarry lease has been granted in S.F.No.184/3 and 7 of Irukkanthurai II Village, Radhapuram Taluk."
10. G.O.Ms.No.829 Public Works Department ,dated 29.04.1991 in P.2(iii) gives discretion to the Collector for using the agricultural land for non- agricultural purpose or for executing any mining operations after consulting the Koodankulam Project Local committee and the same has been done in the present case as set out above.
11. Therefore, even if the Advocate Commissioner's finding was that the survey lands are situated within 5 kms radius from the Koodankulam Nuclear Power Plant, since necessary approval from the committee has been obtained, the prayer made by the petitioner cannot be countenanced by this Court.
12. In the light of the above, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
svki
To
1.The District Collector,
Tirunelveli.
2.The Deputy Director of Mines and Geology,
Collectorate, Tirunelveli District.
3.The Project Director,
Nuclear Power Corporation of
India Limited (A Govt. of India Undertaking),
Koodankulam, Tirunelveli District.