(Prayer: This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the entire records leading to the impugned order Na.Ka.D.No.034313/2011 dated 08.12.2011 passed by the respondent and quash the same.)
1. This writ petition is filed by the petitioner Company seeking to challenge an order dated 08.12.2011 issued by the District Collector, Udagamandalam. By the said order, the petitioner was informed that their request to remove the tea plant in the Ulikkal Village, Kunoor Taluk in S.Nos.102/6 and 36/2B by using JCB machines and for levelling the field cannot be considered in the light of the report of the Revenue Divisional Officer, Kunoor, wherein it was informed that even for agricultural purposes, JCB machines cannot be used. Hence the petitioner Estate was denied permission to use JCB machines for the removal of tea plants in the said survey numbers.
2. When the matter came up on 26.6.2012, this court directed the learned Special Government Pleader Mr.Jayaprakash Narayanan to get instructions from the respondent. Accordingly, a counter affidavit dated Nil (July, 2012) was filed by the respondent District Collector, Nilgiris.
3. The Contention raised by the petitioner was that the order passed by the authority was arbitrary and he ought not to have placed reliance on the report of the Revenue Divisional Officer. He had abdicated his power and discretion. The RDO, Kunoor had not given the details of the writ petition referred to in his report and presumably, it referred to the order passed by this court in W.P.No.9860 of 2008, dated 18.11.2009 by the division bench. The order of this court will not apply to the case on hand. That was the public interest litigation filed by the organisation interested in environment. The main prayer of that writ petition was not to allow the mining and quarrying operations anywhere in the hills of Nilgiris District. It was with a view to protect the environment and pollution in the Nilgiris. The Court after hearing all parties had issued certain directions to check the use of JCBs for the purpose of mining and quarrying activities. The court never had an occasion to consider the case of persons like the petitioner who are carrying on business of cultivating tea, for permitting the use of JCBs for replanting operations. This was never the issue before the division bench. Therefore, there was no total ban on the use of JCBs, particularly in respect of agricultural operations.
4. In the counter affidavit filed by the respondent, a reference was made to the decision passed by this court. It was stated that this court had clearly made observations in paragraphs 9 and 10 and that the order of this court has to be understood in its right perspective and cannot be misconstrued. The order was to protect the ecology and to prevent the irreparable damage and harm to the existing stability of the Nilgiris hills and to protect ecology. In fact, it was stated that subsequent to the division bench order, an another writ petition was filed by the Nilgiris Potato and Vegetable Grower's Association in W.P.No.13397 of 2011 seeking for a direction to permit the farmers residing in the Nilgiris District to avail the use of their machinery devices like the Pocline or JCB earth movers exclusively for agricultural purposes in their existing fields. That writ petition was dismissed with costs. The division bench by its order dated 6.6.2011 had observed as follows :
"This writ petition, under the grab of public interest litigation, has been filed for the issue of a Writ of Mandamus directing respondents 1 to 8 herein to permit the farmers residing in the Nilgiri District to avail use of their machinery devices like the Pocline or JCB earth movers for exclusively agricultural purposes in their existing agricultural fields and consequently grant such other relief.
In our view, the relief sought for is wholly misconceived and mis-use of forum of public interest litigation. Hence, this writ petition is dismissed with costs of Rs.10,000/- to be deposited with the Tamil Nadu State Legal Services Authority, Chennai-104. Consequently, miscellaneous petition is closed."
5. It was also stated in the counter affidavit as follows :
".... Permitting heavy machineries like JCB in these tiny hillocks will certainly cause irreparable damages to the existing stability of the hills which cannot be reverse back at any point of time, if destroyed...."
6. Since the petitioner has referred to the earlier order of the division bench, it is also necessary to refer to the said decision, wherein there was clear stipulation that whether it is agricultural or non agricultural, prohibition must be there. In that case, an impleading application was filed in M.P.No.5 of 2008 by the Nilgiris District JCB and Pocline Owners Association stating that they were using the vehicle only for carrying on construction and agricultural activities. The division bench in paragraph 10 had observed as follows :
"10.....In fact, for the purpose of maintaining its forest and ecology, it is desirable that no mining is made in the area, much less illegal mining. This Court has not made any observations against one or other individual, either officer or organisation, but it cannot be accepted that JCB, tipper lorries or Pocline are used for agricultural activities, that too in a hilly region like Nilgiris. The buildings may be constructed or demolition may be made, but it should be done only with the permission of the competent authority like Corporation or local Panchayat or Collector. If permission is granted for construction of a building or demolition of a building, in such case, one may use heavy vehicle like JCB, tipper lorries or Pocline on permission, but otherwise we find no ground made out as to why JCB, t
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ipper lorries and Pocline should be used for agriculture or any other purpose. If the respondents intends to check illegal mining activities and for that if they intend to regulate the movement of JCB, tipper lorries, Pocline and other heavy vehicles, we leave it open for the competent authorities, who may do so in the interest of administration and protection of ecology." (Emphasis added) 7. In view of the above, there is no case made out to interfere with the impugned order passed by the respondent District Collector. Hence the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petition stands closed.