ORDER
1. These two writ petitions have been filed by the same petitioner under the following circumstances.
2. The petitioner claims to be a Ceylon Repatriate and he applied for a lease of sand quarrying in Kosasthalai River Poramboke bed over an extent of 53.27 acres on 15-4-
1986. Even at the time of inspection by the second respondent the villagers has raised certain objections. After considering all the aspect of the case, the second respondent granted lease in favour of the petitioner for a period of two years by an order dt. 18-12-1986 over an extent of 53.27 acres. The petitioner remitted the lease amount of Rs. 81,194-60 Ps. and the lease was also confirmed on 9-2-
1987. The petitioner started quarrying operations as and from 10-2-1987. According to the petitioner, his business rivals had instigated the villagers to obstruct the quarrying operations. This happened on 26-2-1987 and the petitioner immediately sent representations to the Revenue Division Officer, the
Collector, Deputy Superintendent of Police, seeking assistance. The petitioner was also forced to file W.P. No. 5420 of 1987 and this court directed the said officers to give adequate protection to the petitioner. It is the case of the petitioner that the said officers did not comply with the Court order. It is the specific case of the petitioner that he did not conduct quarrying operations and as from 26-2-1987. While so, the 2nd respondent passed orders on 22-8-1988 cancelling the lease by invoking S. 4(A) of Mines and Minerals (Regulation and Development) Act, 1957. Before passing the order, the Collector did not issue any show cause notice to the petitioner. When the petitioner approached this court by filing W.P. No. 11553/88, he was directed to file an appeal. Accordingly, an appeal was filed and the same was dismissed on 1-12-1988 and 15-2-1988. Writ Petition No. 2287 of 1989 is to quash the order of the first and second respondents dt. 22-8-1988 and 15-2-1988, respectively. In W.M.P. No. 3456 of 1989 this court granted stay, pending disposal of the W.P. However, an application for directions seeking cxtention of the lease period by which he was prevented for operating the quarry, was rejected by this court on the ground that the lease period itself is over. The petitioner was directed to approach the Government for relief. Accordingly, the petitioner filed a revision on 2.1-1-1990, the prayer portion of which is as follows :
“i. extend the lease period lor a period of 2 years from the date of commencement deducting 17 days already quarried.
ii. permit the petitioner to start quarrying of sand in S. No. 519 Vidayooi Village, Tiruvallur Taluk, pending issuance of order to the effect.
iii. make such further or other orders as the Hon’bie Minister Industries may deem fit and proper in the circumstances of the case.”
This request was rejected by the Government in G.O. Ms. No. 173 dt. 15-4-1991 holding that the Second Appeal preferred by the petitioner was out of time. W.P. No. 14829 of 1992 is to quash this order.
3. I am straight way state that the order of the Government in G.O. Ms. No. 173, dt. 15-4-1991 impugned in W.P. No. 14829 of 1992 is vitiated by apparent errors because the Government had considered their representations as a second appeal under R. 30(A)(2) of the Tamil Nadu Minor Mineral Concession Rules, 1959. On the other hand that representation was made in pursuance of the order of this court in W.M.P. No. 3457 of 1989 and the prayer portion of the representation I have already quoted. Therefore, it appears to me that the Government had wrongly considered the representation as second appeal and to this extent the Government Order dt. 15-4-1991 is vitiated and accordingly set aside.
4. However, this will not solve the problem of the petitioner unless the grievance made out in W.P. NO. 2?87 of 1989 is considered. At the time of argument Mr. C.S. Vaidyanathan, learned counsel for the petitioner raised a point which had not been referred to in the affidavit filed in support of the writ petition. This question of law goes to the root of the matter, and therefore, I was inclined to permit the petitioner to argue the point and I have (given?) time to the Government Advocate to look into the matter and submit his answer.
5. The point raised is that under S. 4(A)(4) which is a special provision under the Act power is vested with the State Government. The said sub-section is as follows:–
“4(A)(4) Where the holder of a mining lease fails to undertake mining operations for a period of one year after the date of execution of the lease or, having commenced mining operations, has discontinued the same for a period of one year, the lease shall lapse on the expiry of the period of one year from the date of execution of the lease or, as the case may be discontinuance of the mining operations:
Provided that the State Government may, on an application made by fhe holder of such lease before its expiry under this sub-section and on being satisfied that it will not be possible for the holder of the lease to
undertake mining operations or to continue such operations for reasons beyond his control make an order, subject to such conditions as may be prescribed, to the effect that such lease shall not lapse;
Provided further that the State Government may, on an application by the holder of a lease submitted within a period of six months from the date of its lease and on being satisfied that such non-commencement or discontinuance was due to reasons beyond the control of the holder of the lease, revive the lease from such prospective or retrospective date as it thinks fit but not earlier than the date of lapse of the lease :
Provided also that no lease shall be revived under the second proviso for more than twice during the entire period of the lease.”
6. A careful study of the said provision of taw suggests that the lapsing, contemplated under the main provision is automatic on the expiry of one year after the date of the lease during which period the lessee fails to undertake mining operations. The two provisos also suggest that it is only, if and when the lessee files an application giving satisfactory explanation for his failure to undertake mining operations, that the State Government is called upon to exercise its power either to direct that the lease shall not lapse or that the lease shall revive. In fact, the impugned orders also seem to take this view. The following passage in the order of the second respondent dt. 15-12-1988 makes this position clear :–
“It is also pointed out that ignorance of rules cannot be an excuse in such matters. It is true that a notice before cancellation of the lease is necessary if it was determined only for the failure of registration of the lease deed. In this case the lease was not cancelled on the above ground but based on the provisions contained in Sec. 4-A of the Mines and Minerals (Regulation and Development) Act, 1957 which provides for automatic lapsing of a lease for failure of operation of the quarry for a continuous period of one year. As the petitioner has not applied to the State Government for revival of the lease and obtained an order of revival of the lease the District Collector has passed the impugned orders since he cannot allow the petitioner to qarry in the area.”
Prima facie I was inclined to accept the stand taken by the respondents in the impugned orders. But the learned Senior Counsel for the petitioner has brought to my notice, though at a very late stage, Rr. 28 and 28-A of the Mineral Concession Rules, 1960 introduced on 10-2-1967. It has to be remembered that S. 4(A)(4) also comes into force with effect from 10-2-1987. It is sufficient to quote R. 28(1) of the Rules. It is as follows :
“28. Lapsing of leases :– (1) Subject to the other conditions of this rule, where mining operations are not commenced within a period of one year from the date of execution of the lease or is discontinued for a continuous period of one year after commencement of such operations, the State Government shall be an order, declare the mining lease as lapsed and communicate the declaration to the lessee.”
Therefore, I uphold the contentions raised by the petitioner that the third respondent has no jurisdiction to exercise power under S. 4(A)(4) of the Act and it is the State Government alone which can exercise the power. Once we come to this conclusion that the lapsing under the above provision of law requires a declaration by the State Government, it follows that the principles of natural justice have to be read into the said provision of law. Consequently, the second contention that there was no notice before the passing of the impugned orders also gains importance. In this view of the matter both the orders of the third and second respondents dt. 22-8-1988 and 15-12-1988 are quashed, and W.P. Nos. 2287 of 1989 is allowed to that extent. However, the second part of the prayer seeking permission to quarry sand in the lease hold area has to be considered separately. This is because the period of lease was only for two years and that period had expired long back. In this connection, learned counsel for the petitioner has brought to my notice the judgment of the Delhi High Court in Dharam Veer v. Union of India, . The Delhi High Court was considering a similar situation based on a premature termination of mining lease by the State Government. The Delhi High Court was confronted with a proposition that when a lease period was over, the same cannot be extended under any circumstances. It was also con tended that the remedy, if any, of the petitioner is to claim damages. Rejecting the contention it was observed that where there is a breach of statutory duty and the order of termination is held to be invalid and without jurisdiction and it is ultimately quashed, it must be held that the premature termination is non-existence. Therefore, the Delhi High Court held that the nature of the remedy should be considered from this angle. In that case a mandamus was not issued to the respondents to restore possession of the lessee and permit the lessee to quarry sand for the period of unlawful interruption. In other words, the period of unlawful interruption was directed to be excluded from the period of lease. I am in respectful agreement with the directions of the Delhi High Court.
7. Adotping the above principle of law I allow both the Writ Petitions and also direct the respondents to permit the petitioner to undertake quarrying operations for the period of unlawful interruption occasioned by the impugned orders. The Writ Petitions are allowed in the above terms. There will however, be no order as to costs.
8. Petitions allowed.