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2014 DIGILAW 3641 (MAD)

R. Periyannan v. Government of Tamil Nadu

2014-09-25

V.M.VELUMANI

body2014
Judgment 1. This civil revision petition has been filed to set aside the order passed by the learned District Munsif, Musiri, dated 20.06.2014, in I.A.No.496 of 2014 in I.A.No.454 of 2010 in O.S.No.98 of 2010. 2. The petitioner is the plaintiff, whereas the respondents are the defendants in O.S.No.98 of 2010 on the file of the District Munsif Court, Musiri. The suit has been filed by petitioner in a representative capacity. The suit is for permanent injunction against the respondents preventing them to permit the Quarry Operator for quarrying the sand in the suit property and for mandatory injunction to remove the Poclain machineries from the suit property. Along with the suit, the petitioner filed I.A.No.453 of 2010 for injunction pending suit. In the said application, conditional injunction was granted partly allowing the said application. The learned Judge has stated that while the sand is taken from the Sand Quarry, the ground water level in the Village of the petitioner and the environment should not be affected. 3. The petitioner also filed I.A.No.454 of 2010 for appointment of an Advocate Commissioner. In the said application, the Advocate Commissioner was appointed on 15.4.2010. The Advocate Commissioner inspected the suit property and filed his report on 22.4.2010. 4. The petitioner after four years again filed application in I.A.No.496 of 2014 in I.A.No.454 of 2010 for re-issue of warrant directing the Advocate Commissioner to inspect the suit property along with competent Officer from the Tamil Nadu Environment Protection and Valuation Department and to file his report. 5. According to the petitioner, the respondents have violated the interim injunction granted in I.A. No. 454 of 2010 by permitting sand quarry operators quarrying huge quantity of sand affecting the ground water and also the environment in the locality. The petitioner further contended that contrary to rules and order of Court, the respondents have permitted the quarry operation to quarry large quantities of sand more than the permitted level affecting ground water level and surrounding environment in the locality. For these reasons, the petitioner had prayed for re-issue of warrant to the commissioner to prove that sand quarry had been done contrary to the rules and the orders of this Court. 6. The third respondent filed counter affidavit and the same was adopted by respondents 1 and 2. The respondents denied the various allegations made in the affidavit of the petitioner. 6. The third respondent filed counter affidavit and the same was adopted by respondents 1 and 2. The respondents denied the various allegations made in the affidavit of the petitioner. The respondents have stated that the respondents were not prevented to continue mining quarry operations, but were imposed certain restrictions in permitting the quarry operations. They have also stated that the petitioner did not file any authenticated documentary proof to show that water level on the earth decreased due to mining of sand and the petitioner did not produce any certificate from the Tamil Nadu Pollution Control Board. It is for the petitioner to prove various allegations made by him. They also denied that they have committed contempt of Court by violating interim injunction granted by the learned Judge. 7. The learned Judge considering all the materials on record and arguments of the learned counsel for the petitioner and the respondents, dismissed the application on 20.6.2014. The learned Judge considering the matter on merits, has held that the petitioner has not proved the necessity for re-issue of warrant of commission. Against the said order, dated 20.06.2014, the petitioner has filed the present civil revision petition. 8. Heard Mr. N. Dilip Kumar, learned counsel for the petitioner. 9. The learned counsel for the petitioner argued that the learned Judge erred in dismissing the application to re-issue warrant of commission with qualified Officer from the Tamil Nadu Environment Protection and Valuation Department to inspect the suit property to file a report regarding sand quarry. The learned counsel for the petitioner further argued that the respondents have permitted sand quarrying to a large quantity of sand more than the permitted level which has affected the ground water level and environment. He also contended that the Advocate Commissioner already has filed a specific report about the unlawful sand quarrying than the permitted level which is affecting environment by depleting the water level. The learned Judge ought not to have considered the judgment reported in 2013(2) TNLJ 465 (Civil) [Rajalakshmi and Others Vs. Pon.Muthuramalingam and Another] referred by the respondents. The facts and circumstances of the said case is not relevant to the facts and circumstances of the present case. He vehemently contended that the learned Judge committed irregularity in holding that the petitioner has filed I.A. for re-issue of warrant with an intention to collect evidence for the suit. 10. Pon.Muthuramalingam and Another] referred by the respondents. The facts and circumstances of the said case is not relevant to the facts and circumstances of the present case. He vehemently contended that the learned Judge committed irregularity in holding that the petitioner has filed I.A. for re-issue of warrant with an intention to collect evidence for the suit. 10. I have carefully perused all the materials on record and arguments of the learned counsel for the petitioner. 11. From the records, it is seen that interim injunction was granted with condition namely, the respondents can permit sand quarrying which will not affect the ground water level as well as surrounding environment. The learned Judge has not fixed any quantity of sand that can be quarried. Now, the petitioner has come out with the present application stating that the respondents permitted quarrying contrary to the rules and regulations and contrary to the interim injunction granted by the Court below. 12. Further, the petitioner has stated that by quarrying of large quantities of sand, the ground water level has been reduced and environment has been affected. The petitioner has stated that it is necessary to re-issue of warrant of commission with a direction to the Commissioner to inspect the suit property and to file a report to prove the statement of the petitioner. 13. This reveals that intention of the petitioner is only to collect evidence to prove his case. It is well settled that a party must prove his case on his own by evidence. The Advocate Commissioner cannot be appointed to collect evidence to prove the case of party to the suit. In addition to this, it is well settled that once an Advocate Commissioner has been appointed and has filed his report, it is for the party to file his objections if any and it is for the Court to consider and pass orders either accepting or rejecting the said report. This has been held by the Court in the decision reported in 2013 (5) MLJ 310 [S. Ramo Rao Vs. Government of Tamil Nadu and Others]. Paragraphs 6 and 7 of the order reads as follows: "6. It is seen that the suit filed by the petitioner is one for declaration, permanent injunction and also for mandatory injunction. Already, an application filed by the petitioner seeking for appointment of the Advocate Commissioner was allowed in I.A.No.128 of 2009. Government of Tamil Nadu and Others]. Paragraphs 6 and 7 of the order reads as follows: "6. It is seen that the suit filed by the petitioner is one for declaration, permanent injunction and also for mandatory injunction. Already, an application filed by the petitioner seeking for appointment of the Advocate Commissioner was allowed in I.A.No.128 of 2009. It is also seen that the Advocate Commissioner has filed a report on 7.10.2009. It is also represented before this Court that the petitioner has already filed an objection to the report filed by the Advocate Commissioner. If that be the position, it is for the Court below to consider the report of the Advocate Commissioner as well as the objection filed by the petitioner and thereafter to decide the issue based on the materials placed before the Court. 7. When I perused the affidavit filed in support of the application filed seeking for re-issuance of warrant, I find that certain allegations are made by the petitioner to seek re-issuance of warrant to the Commissioner. If at all he is aggrieved, it is for him to file his objection to the Commissioner's report, which he has already done by filing an objection before the Court below. It is for the Court below to either accept the report or reject the same based on the objections raised by the petitioner. When that being the factual position, seeking re-issue of warrant to the Commissioner does not arise at this stage. I find no irregularity or infirmity in the order passed by the Court below. Accordingly, the Civil Revision Petition is dismissed. Consequently, the connected M.P. is closed. No costs." 14. It is also well settled that the report of the Advocate Commissioner will not finally decide the issue in the suit. It can only to assist the Court in deciding the issue. In the present case, the petitioner himself has admitted that the re-issue of warrant of commission is necessary to prove his case that ground water level has been reduced and environment had been affected due to the action of the respondents. The Advocate Commissioner cannot be appointed for collecting evidence to prove the case of the party to the suit. The suit filed by the petitioner is for permanent injunction with regard to granting of permission for sand quarrying and for mandatory injunction to remove the Poclain machineries. The Advocate Commissioner cannot be appointed for collecting evidence to prove the case of the party to the suit. The suit filed by the petitioner is for permanent injunction with regard to granting of permission for sand quarrying and for mandatory injunction to remove the Poclain machineries. The learned Judge has considered all the materials on record in proper perspective and dismissed the application filed by the petitioner for re-issue of warrant of commission. 15. There is no material irregularity or infirmity in the said order. The learned Judge has exercised his power properly. 16. For the reasons stated above, the Civil Revision Petition is dismissed. No costs.