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Judgment
D. Murugesan, J.—Since the issues involved in the above writ petitions are common, all the writ petitions are taken up together for disposal
by this common order.
For better appreciation, the facts relating to W.P.No.14431 of 1994 may be referred to first in this order. The petitioner is Sri Kaleeswari
Metal Powder Private Limited represented by its Managing Director, Sivakasi. The petitioner is the owner of the lands comprised in S.Nos.477/1
to 8, 479/1A, 1B and 2, 499, 500/2B1, 500/2B2, 500/5, 6, 8 and 9 at Injar Village, Virudhunagar. Before establishing the factory to manufacture
aluminium powder at the above lands, the petitioner obtained permission from the first respondent panchayat on 6.6.91 for construction of factory
buildings. Pursuant to the said permission, the petitioner completed the construction during February 1994. Before commencing the production, the
petitioner applied for licence under the provisions of the Explosives Act, 1884 on 27.8.93. By a communication of the Deputy Controller of
Explosives, who is empowered to grant licence under the said Act, dated 13.9.93, the petitioner was informed that no licence is required under the
provisions of the Explosives Act to manufacture aluminium powder. However, as per the requirement of the Act, the petitioner should inform the
Government of India, Ministry of Industry as to its manufacturing activities in aluminium powder. Accordingly, the petitioner intimated its activity to
the Government of India and such intimation was acknowledged. In the meantime, the petitioner also obtained a consent from the Tamil Nadu
Pollution Control Board by its proceedings dated 3.9.92 under the provisions of Section 25 of the Water (Prevention and Control of Pollution)
Act, 1974 and u/s 21 of the Air (Prevention and Control of Pollution) Act, 1974 initially for a period upto 31.3.93 which was subsequently
renewed for a further period upto 30.4.94. The petitioner also applied to the first respondent on 21.1.94 for issue of necessary licence for
installation of machinery and also for running the factory. Though initially the said request was rejected by the first respondent on 25.1.94 quoting
some pendency of writ petitions, later the licence was issued to the petitioner on 29.4.94 subject to the petitioner obtaining consent from the Tamil
Nadu Pollution Control Board. On the strength of the said licence, the petitioner commenced its production on and from 23.6.94. The said licence
has been cancelled by the impugned proceedings dated 10.8.94 without any notice. Hence, the petitioner has filed W.P.No.14431 of 1994
seeking to quash the impugned order dated 10.8.94 and for a consequential direction to forbear the first respondent from in any manner interfering
with the petitioner carrying on the manufacture of aluminium powder in its factory situate at Injar Village, Virudhunagar Taluk.
W.P.No.19449 of 1993 has been filed by certain agriculturists of Injar and other villages seeking for a direction to the respondents 1 to 7 to
cancel the licence granted in favour of Sri Kaleeswari Metal Powder Private Limited, who has been cited as eighth respondent in the writ petition.
The said writ petition has been filed on the ground that the establishment of the factory is hazardous for human habitation and also injurious not only
to human beings but also affect the soil, water, crops, plants and animals due to pollution of water and air.
W.P.No.10671 of 1994 has been filed by one V. Ramasamy, questioning the proceedings of the Commissioner, Sivakasi Panchayat Union
dated 10.6.94 communicated to one K. Sakthivel Thevar of Injar Naduvapatty Village informing him that since there was no interim order against
M/s Sri Kaleeswari Metal Powder Private Limited, it has been granted licence. This writ petition is also filed on the ground that if the licence is
granted and the company starts its production, air and water in the area will be polluted.
W.P.No.18997 of 1994 has been filed again by certain agriculturists of Injar and other villages seeking for a direction to the fifth respondent,
viz., Sri Kaleeswari Metal Powder Private Limited to remove illegal encroachment of the lands made by it in S.Nos.465, 477, 478, 479, 480,
498, 499, 500, 505 and 564 of Injar Revenue Village, Virudhunagar Taluk. It is alleged in the affidavit filed in support of the writ petition that the
fifth respondent company had encroached the lands belonging to the panchayat in S.No.500 by blocking water channel and have put up the
factory to manufacture aluminium powder. To support their contentions, certain details as to the ownership of the lands have been cited basing
revenue records. In this connection, representations dated 13.1.94 and 14.2.94 were also sent to the authorities to prevent the construction of the
factory. On the basis of their representations, the Assistant Engineer, Public Works Department, Sivakasi by communication dated 13.2.94
informed the first petitioner that he had inspected the site along with the V.A.O. on 11.2.94 and along with the V.A.O.''s report, he had also sent
his report to the Assistant Executive Engineer, Virudhunagar for taking suitable action. Similarly, a further communication dated 3.5.94 was also
received by the first petitioner from the Executive Engineer, P.W.D., Virudhunagar Division intimating him that the District Revenue Officer,
Virudhunagar has been requested to take steps to remove the encroachment of blocking water channel. Since no further action was taken, the
petitioners have filed the said writ petition.
Pending the above writ petition, since no action was taken by the respondents, the petitioners sent further representations dated 16.4.93,
24.9.93 etc., to the Tahsildar of Virudhunagar District complaining about the illegal encroachment of the lands by Sri Kaleeswari Metal Powder
Private Limited and requested him to take suitable action. Accordingly, by communication dated 1.8.95, the Tahsildar of Virudhunagar District
directed the management of Sri Kaleeswari Metal Powder Private Limited to remove the encroachment within seven days. Since no action was
taken, the petitioners filed W.P.No.17211 of 1995 seeking for a direction to the respondents 1 to 5 to implement the order dated 1.8.95 of the
second respondent with a further direction not to grant, extend or renew the licence for manufacture of aluminium powder in favour of the sixth
respondent company.
Heard the respective learned counsel for the petitioners and the respondents.
From the rival contentions as pleaded, the following two issues arise for our consideration.
(1)Whether the impugned order dated 10.8.94 passed against the petitioner in W.P.No.14431 of 1994 could be sustained and whether the
petitioner is entitled to carry on its business?
(2)Whether the lands in S.Nos.477/1 to 8, 479/1A, 1B and 2, 499, 500/2B1, 500/2B2, 500/5, 6, 8 and 9 at Injar village belong to the petitioner
or it is an Odai Poromboke which vests with the panchayat and it is encroached by the petitioner in W.P.No.14431 of 1994?
Insofar as the first issue is concerned, the panchayat permitted the petitioner in W.P.No.14431 of 1994 by order dated 6.6.91 to put up
buildings in the lands in question for manufacture of aluminium powder. Pursuant to the said permission and the approved plan, the petitioner
completed the construction of buildings as early as on February 1994. When the petitioner approached the authorities for grant of licence under the
Explosives Act 1884, it was informed that no licence is required under the Act for manufacture of aluminium powder. The Pollution Control Board
also gave its consent upto the period 30.4.94. Thereafter, whether the petitioner obtained further consent from the Pollution Control Board is not
made clear. However, the petitioner was issued with a licence by the first respondent to carry out the manufacturing activities in metal powder on
29.4.94 subject to obtaining consent from the Pollution Control Board. The said licence was issued to the petitioner under paragraph 49 of
Chapter IV of Manual on Panchayat Administration relating to form and conditions of licences, permissions, etc. The said licence can be modified,
suspended or cancelled by the Commissioner of Panchayat under sub para 3 of Paragraph 49 which reads thus:-
Sub Para 3(1): Any licence or permission granted under the Act or any rule, by law made thereunder may at any time be modified, suspended or
cancelled by the Commissioner if any of its restrictions, limitations or conditions is evaded or infringed by the grantee or if the granted is convicted
of breach of any of the provisions of the Act or any rule, bye-law or regulation made thereunder in any matter to which such licence or permission
relates, or if the grantee has obtained the same by misrepresentation or fraud, an appeal shall lie to the Panchayat Union Council against any order
of the Commissioner under this rule, modifying, suspending or canceling a licence and no such appeal shall be heard unless it is received in the
office of the panchayat union within ten days after the date of receipt by the grantee of the order appealed against.
In terms of the above paragraph, a licence could be suspended in case the restrictions, limitations or conditions of licence are evaded or
infringed by the licensee or the licensee is convicted of breach of any of the provisions of the Act or any rule, by-law or regulations made
thereunder. Such a power could be exercised only after due opportunity to the beneficiary of licence as any variation, suspension or cancellation of
the licence would amount to civil consequences. It is but necessary to point out that on the strength of the planning permission and the licence to
run the factory, the petitioner invested nearly Rs.3 crores to establish the factory and also employed 30 workers. The petitioner also obtained loan
of Rs.80 lakhs from State Bank of India, Sivakasi Branch. Such an order also is amenable by way of appeal to the Panchayat Union Council. A
bare reading of the impugned order reveals that except mentioning that the licensee has not carried on the business within the conditions of licence,
no specific violation of conditions of licence is mentioned in the impugned order. Moreover, our attention was not drawn to the source of power of
the respondent to temporarily suspend the licence. We are unable to sustain the impugned order temporarily suspending the licence granted to the
petitioner on the ground of violation of audi alteram partem rule as well in the absence of any provision for the first respondent to temporarily
suspend the licence granted to the petitioner. In that view of the matter, the impugned order dated 10.8.94 is liable to be set aside.
Coming to the second issue, it is the specific case of the petitioner in W.P.No.14431 of 1994 that the lands in S.Nos. 477/1 to 8, 479/1A, 1B
and 2, 499, 500/2B1, 500/2B2, 500/5, 6, 8 and 9 at Injar village belong to the petitioner. However, the petitioners in W.P.No.18997 of 1994
and W.P.No.17211 of 1995 claim that the lands in S.Nos. 465, 477, 478, 479, 480, 498, 499, 500, 505 and 564 of Injar Revenue Village,
Virudhunagar Taluk are Odai Poramboke and vest in the panchayat union. The said disputed question as to the ownership of the land cannot be
adjudicated upon in the writ proceedings under Article 226 of the Constitution of India. Though there are communications from the Assistant
Engineer of Sivakasi Division and Executive Engineer, P.W.D. of Virudhunagar Division and the Tahsildar of Virudhunagar Taluk for removal of
encroachment, in view of the specific claim of the petitioner in W.P.No.14431 of 1994 as to the ownership of the lands in S.Nos. 477/1 to 8,
479/1A, 1B and 2, 499, 500/2B1, 500/2B2, 500/5, 6, 8 and 9 at Injar village, we are not impressed by the submissions made on behalf of the
petitioners in W.P.Nos.18997 of 1994 and 17211 of 1995 seeking for a direction to remove the encroachment allegedly made by the petitioner in
W.P.No.14431 of 1994. Such disputed question can be very well adjudicated by the parties before the civil Court. Hence, for all these reasons,
we issue the following directions:-
(1)The impugned order dated 10.8.94 passed by the first respondent in W.P.No.14431 of 1994 is set aside and the writ petition is allowed.
However, we make it clear that the order in the writ petition will not stand in the way of the first respondent to initiate fresh action. In the event
such action is contemplated, the petitioner shall be given opportunity to put forth its contentions. We make it clear that if any, objections are made
by the villagers on the licence granted to the petitioner, the same shall be also considered and those objectors shall also be given opportunity of
hearing. The first respondent shall also ensure as to whether the petitioner has obtained fresh consent from the Tamil Nadu Pollution Control
Board. Accordingly, we answer the first issue in favour of the petitioner in W.P.No.14431 of 1994. In view of the above finding in
W.P.No.14431 of 1994, we find that no further orders are necessary in W.P.No.19449 of 1993 and in W.P.No.10671 of 1994 and the same
are dismissed.
(2)All the parties to the writ proceedings are at liberty to approach the civil Court to establish the title over the disputed lands as to whether the
said lands belong to the company or it is Odai Poromboke which vests with the Panchayat Union. Accordingly, we leave the second issue open to
be decided in the appropriate civil proceedings.
With these observations, W.P.No.14431 of 1994 is allowed, W.P.Nos.19449 of 1993, 10671 of 1994 are dismissed and W.P.Nos.18997
of 1994, 17211 of 1995 are disposed of. No costs. Consequently, W.M.P.Nos.30297 of 1993, 6354 of 1994, 16097 of 1994, 28993 of 1994
and 27284 of 1995 are closed.