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V.Ganesan vs The District Collector on 19 October, 2010

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.

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