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2013 DIGILAW 3852 (MAD)

Singaravelu v. District Collector, Vellore

2013-11-07

S.MANIKUMAR

body2013
JUDGMENT 1. Petitioner, has made an application dated 06.08.2013 under Rule 19 (2) of the Tamilnadu Minor Minerals Concession Rules, 1959, in Form-I, to the District Collector, Vellore District, the 1st respondent, for removal of brick earth from a lake. Pursuant to the same, the District Collector, vide proceedings in R.C.No.678/2013 (Minerals) dated 14.08.2013, has directed the Executive Engineer, Water Resources Irrigation Deptt., Mal Palar Division, Katpadi, Vellore District, to grant a 'No Objection Certificate', and to send a Field Inspection Report. 2. Material on record, further discloses that when the request for granting permission was pending before the District Collector, Vellore, a lawyer's notice dated 02.09.2013, has been sent to the District Collector and other respondents. In response to the same, the Revenue Divisional Officer, Ranipet, has sent a reply dated 13.09.2013 to Mr.Nanda Kumar, Advocate stating that, vide letter dated 30.08.2013, the Tahsildar, Wallaja Taluk, Vellore, has been directed to conduct an enquiry and submit a report. 3. Contending inter alia that the request of the petitioner, for grant of permission to take sand from the lake in S.No.667, is pending consideration with the District Collector, Vellore District, the petitioner has come forward with the present writ petition for a mandamus, directing the respondents to grant permission for taking lake sand in Mangkuppam Village lake Survey No.667, for production of country bricks, in Survey No.592/2b 31.0 Ares, 592/3b 61.5 Ares, 592/3C, 3.0 Ares and 593/2 11.5 Ares situated at Nanthialayam Village, Walaja Taluk, Vellore District. 4. Heard the learned counsel for the petitioner and perused the materials available on record. 5. Before adverting to the facts of this case, let me extract few decisions on mandamus. (a) In the decision reported in (1996) 9 SCC 309 (State of U.P. and Ors. v. Harish Chandra and Ors.) in paragraph 10, the Apex Court held as follows: 10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition.... ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition.... (b) In the decision reported in (2004) 2 SCC 150 (Union of India v. S.B. Vohra) the Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so. (c) In the decision reported in (2008) 2 SCC 280 (Oriental Bank of Commerce v. Sunder Lal Jain) in paragraphs 11 and 12 the Supreme Court held thus, 11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.: Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed. Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. 6. When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows: “Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective." (emphasis supplied) 7. As the application, is stated to have been filed under Rule 19(2) of the Tamilnadu Minor Minerals Concession Rules, 1959, this Court deems it fit to have a cursory look, at the abovesaid rule, which is as follows: (2) Notwithstanding anything contained in sub-rule (1), the procedure for quarrying brick earth shall be as follows:- (a) Every brick manufacturing unit shall for quarrying brick earth, apply to the District Collector concerned for quarrying permit in Form-I in Appendix-IV-A along with a copy of certificate of registration issued by the District Collector concerned, the consent letter from the pattadar from whose land it is proposed to quarry the earth for the manufacture of bricks, a non-refundable application fee of Rs.1500/- (Rupees one thousand and five hundred only ) and the brick mineral annual fee at the rate specified below remitted in the District Treasury by way of chalan:- i) For kiln upto 16 chambers: Rs.28,000/-(Rupees twenty eight thousand only) per kiln per annum. ii) For kiln with 17 and more chambers but not exceeding 26 chambers: Rs.35,000/- (Rupees thirty five thousand only) per Kiln per annum. iii) For kiln with 27 and more chambers: Rs.40,000/- (Rupees forty thousand only) per kiln per annum. iv) For country kiln upto 15 firing vents: Rs.5,000/- (Rupees five thousand only) per kiln per annum. ii) For kiln with 17 and more chambers but not exceeding 26 chambers: Rs.35,000/- (Rupees thirty five thousand only) per Kiln per annum. iii) For kiln with 27 and more chambers: Rs.40,000/- (Rupees forty thousand only) per kiln per annum. iv) For country kiln upto 15 firing vents: Rs.5,000/- (Rupees five thousand only) per kiln per annum. v) For Country kiln with more than 15 firing vents: Rs.6,000/- (Rupees six thousand only) per kiln per annum. (b) On receipt of an application for grant of a quarrying permit under clause (a), the District Collector if he sees no valid objection, may grant quarrying permission to the applicant. If there is any valid objection, the District Collector shall give the applicant an opportunity of hearing before rejecting the application. (c) The permit to be granted under clause (a) shall be subject to the following conditions, namely:- i) the permit holder shall intimate to the District Collector about the details of patta lands from which the earth for manufacture of brick is proposed to be quarried fifteen days before commencement of quarry of earth. Whenever there is a change of location (survey field) of quarrying it shall be intimated in the manner indicated above. ii) quarrying shall be done only for an optimum depth to be specified by the District Collector so that the land shall be restored to a state fit for cultivation. iii) quarrying shall be carried out without affecting the interest of the adjoining land owners. iv) a safety distance of 10 Mts. from the village road, cart track and stream courses shall be left and maintained, and also a safety distance of 50 Mts. from the highways and railway lines should be left and maintained. v) an agreement in non-judicial stamp paper, in Form till in Appendix IV-A shall be executed within fifteen days from the date of receipt of the permit from the District Collector or within such further period as may be allowed by the District Collector. vi) the permit shall be valid for a period of one year from the date of execution of the agreement. vii) quarried earth shall be transported to the kiln of the permit holder only with a way permit issued by the permit holder himself in Form II in appendix-IV A. viii) The permit holder shall keep correct accounts showing the quantity of brick earth removed and transport. vii) quarried earth shall be transported to the kiln of the permit holder only with a way permit issued by the permit holder himself in Form II in appendix-IV A. viii) The permit holder shall keep correct accounts showing the quantity of brick earth removed and transport. ix) In case of breach by the permit holder of any of the conditions specified above, the penal provision in the said Rules shall apply. 8. A bare reading of the rule makes it clear that an application under Rule 19(2) of the Tamilnadu Minor Minerals Concession Rules, 1959, can be made to the District Collector, only by a brick manufacturing unit, and that the applicant has to enclose the copy of the registration certificate issued by the District Collector concerned. Removal of brick earth, is permitted only from patta lands. A consent letter from the pattadar from whose land, it is proposed to quarry brick has to be produced. In addition to the above, the brick manufacturing unit, who seeks permission to quarry brick earth, should pay brick manufacturing annual fee, at the rate stated supra. 9. When permit is granted by the District Collector, the permit holder, shall intimate to the District Collector about the details of patta lands from where the earth for manufacture of brick is proposed to be quarried, fifteen days, before commencement of quarry of earth. In addition to the above, quarrying should be carried out without affecting the interest of the adjoining land owners. 10. Though, the petitioner has made an application under Rule 19(2) of the said rules, perusal of the proceedings in R.C.B.No.678/2013 (Minerals) dated 14.08.2013 of the District Collector, Vellore District, addressed to the Executive Engineer, Water Resources Irrigation Deptt., Mal Palar Division, Katpadi, Vellore District, shows that the petitioner has intended to remove brick from Manguppam lake, measuring 26.70.0 hectares in S.No.667, Manguppal Village, Wallaja Taluk, Vellore District. For better appreciation, this Court deems it fit to extract the letter dated 14.08.2013, stated supra, “TAMIL” Translated version of the above, is as follows: From To Dr.P.Shankar, I.A.S., The Executive Engineer, District Collector, Water Resources Irrigation Deptt. Vellore District, Mel Palaru Basin Division, Vellore 9. Katpadi, Vellore District. For better appreciation, this Court deems it fit to extract the letter dated 14.08.2013, stated supra, “TAMIL” Translated version of the above, is as follows: From To Dr.P.Shankar, I.A.S., The Executive Engineer, District Collector, Water Resources Irrigation Deptt. Vellore District, Mel Palaru Basin Division, Vellore 9. Katpadi, Vellore District. R.C.B.678/2018 (Minerals) dated 14.08.2013 Sir, Sub: Mines and quarries Vellore district sand Wallajah Taluk Application of Thiru.S.Singaravel, S/-.Chinnapaiyan for the grant of permit to quarry sand from Manguppam lake and for using the same in the country Brick Kiln, in the are of an extent of 26.70.0 hectares in S.No.667 of Manguppam Village, Wallaja Taluj Reg. Ref: Application dated 12.08.2013, from Thiru S.Singaravel, S/o.Chinnapaiyan. xxx The petition cited under reference and its contents are enclosed. Thiru.S.Singaravel, S/o.Chinnapiyan, in his application, cited under reference, has requested to grant permission for quarrying sand from Manguppam Village, Walajah Taluk, Vellore District and to use the same for the country Brick Kiln to be constructed in the patta land measuring a total extent of 0.14.5 hectares in S.No.592/3C, 593/2, Nandhiyalam Village in the aforesaid taluk. Therefore, in order to grant permission for quarrying the sand from the aforesaid lake, you are requested to give "No Objection Certificate" from your department and the report of the field sketch. Office of the Executive Engineer, W.R.I.D., Mel Palaru Basin Division, Vellore 6. E.No.Va.A.D.101/Sand/375M/2013 dated 22.08.2013 Copy is sent to the Assistant Executive Engineer, W.R.I.D., Melpalaru Basin Division, Ranipet for necessary action and submit the report to the division with regard to the aforesaid subject. Sd/-.M.Kesavalu Executive Engineer, W.R.I.D., Melpalaru Basin Division, Vellore 632 006. To The Assistant Executive Engineer, W.I.R.D., Melpalaru Basin Division, Ranipet //True Copy Forwarded by Order// Senior Draughtsman. 11. First of all, rule 19(2) of Tamilnadu Minor Minerals Concession Rules, 1959, enables only a brick manufacturing unit to apply for quarry rights, for removal of brick earth, from the patta lands and not from a lake and when the rule mandates, a copy of the certificate of registration issued by the District Collector to be appended alongwith the application submitted under Rule 19(2) of the said rules, it is not known as to how the District Collector, has directed the Executive Engineer, Water Resources Irrigation Deptt., Mal Palar Division, Katpadi, Vellore District, to grant a 'No Objection Certificate' for removal of brick earth from Manguppam lake. 12. 12. As stated supra, the rule enables, only a manufacturing unit to apply for quarrying brick earth in respect of patta lands only. When, the statutory rule 19(2) (C)(iii) imposes a condition that in case of permit granted by the District Collector, quarry can be carried out without affecting the interest of the adjoining landowners also, and that the permit holder shall intimate to the District Collector about the details of patta lands from where the earth for manufacturing of brick is proposed to be quarried, this Court is of the view that the District Collector is not right in directing the Executive Engineer, Water Resources Irrigation Deptt., Mal Palar Division, Katpadi, Vellore District, to grant 'No Objection Certificate', to remove brick earth from the lake. 13. The petitioner, is not able to substantiate as to whether he has any right under the Tamilnadu Minor Minerals Concession Rules, 1959, to seek for permission, for removal of brick earth from a lake in a village. Writ of mandamus cannot be issued merely because a person is praying for. One must establish the legal right first and then, he must seek for a prayer to enforce the said right. If there is failure in discharging the duty by the authorities or inaction, one can approach the Court for a mandamus. 14. In the light of the statutory provisions, this Court is not inclined to issue any mandamus. Therefore, the writ petition is dismissed. No costs.