IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 17.03.2011 Coram: The Honourable Mr.M.Y.EQBAL, CHIEF JUSTICE and The Honourable Mr.Justice T.S.SIVAGNANAM W.A.Nos.1018 & 1019 of 2010 and W.P.No.5734 of 2010 and connected miscellaneous petitions -------- W.A.Nos.1018 & 1019 of 2010 The District Collector, Namakkal District, Namakkal. ... Appellant in both the appeals vs. 1.K.Anbarasi .. Respondent in W.A.No.1018/2010 2.S.Senthil Kumar .. Respondent in W.A.No.1019/2010 W.A.No.5734 of 2010 G.Selvaraj ... Petitioner vs. The District Collector, Salem District @ Salem .. Respondent Appeals filed under Clause 15 of the Letters Patent against the order passed in W.P.Nos.15846 & 15847 of 2010 dated 02.04.2009 on the file of this Court. Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus directing the respondent to grant permission to the petitioner to carry on quarrying operations in respect of stone quarry situated in S.F.No.9 over an extent of 2.73.0 hectares in Government Poromboke Land in P.N.Patty Village, Mettur Taluk, Salem District for which the petitioner was illegally prevented by the respondent for a period of 18 months and 18 days (from 15.12.2006 to 03.07.2008). For Appellant in both the appeals & ::: Mr.J.Raja Kalifulla For Respondent in W.P. Government Pleader, Assisted by Mrs.M.Sneha, Govt. Advocate. For Respondent in both the appeals ::: Mr.Arun Natarajan for Ms.C.Uma For Petitioner in W.P.No.5734/2010 ::: Mr.A.L.Somayaji, Senior Counsel for Mr.K.R.Krishnan COMMON JUDGMENT THE HON'BLE CHIEF JUSTICE & T.S.SIVAGNANAM,J.
Since common questions of law and facts are involved in both the appeal and the writ petition, they have been heard and disposed of by this common judgement.
2. W.A.Nos.1018 & 1019 of 2010 arises out of a common order passed in W.P.Nos. 15846 & 15847 of 2008, whereby the learned single Judge allowed the writ petitions and directed the respondent-appellant to extend the lease of quarry in respect of the land in question.
3. W.P.No.15846 of 2008 was filed seeking a direction upon the respondent-appellant to extend the lease of quarry in S.F.No.1 (Bit 1) admeasuring 4.90.0 hectare in Kondamanaikenpatti Village, Namakkal Taluk for a period of 283 days from 18.9.2008, which is the date of expiry of the existing lease executed in favour of the writ petitioner.
4. A similar relief was claimed in W.P.No.15847 of 2008 seeking a direction for extension of lease of quarry in S.F.No.II (Bit 2) admeasuring 1.25.0 hectares in Kondamanaickenpatti Village, Namakkal Taluk for a period of 283 days from 18.9.2008.
5. It appears that pursuant to the tender notice issued by the appellant under the Tamil Nadu Minor Mineral Concession Rules, 1959, the petitioner beings the successful bidders were granted quarry lease for a period of five years from 19.9.2003 to 18.09.2008. By proceeding dated 11.7.2005, the respondent-appellant issued the order of suspension to quarry until the leasehold lands are surveyed and demarcated. The petitioners challenged the said order by filing writ petition being W.P.No.23972 of 2005 and W.P.No.23971 of 2005. The said writ petitions were disposed of on 8.8.2005 directing the respondent-appellant to measure and handover the property, which has been leased out to them, within a period of three weeks. It was, further, observed that the extension of such period has to be considered on account of suspension of the lease period. After the aforesaid direction, the lands were measured on 24.8.2005 and the report was submitted by the respondent-appellant. The respondent -appellant then issued a show cause notice on 2.9.2005 pointing out certain defects. The petitioners replied to the said notice and thereafter, an enquiry was conducted, but no order was issued. The writ petitioners thereafter again filed writ petitions being W.P.Nos.34567 and 34568 of 2005 for a mandamus directing the respondent to pass final orders on the show cause notice. The said writ petitions were disposed of on 26.10.2005 directing the respondents to pass final orders within two weeks. In spite of the aforesaid direction, no orders were passed and again the petitioners moved this Court by filing W.P. Nos. 1207 and 1208 of 2006 for quashing the order dated 11.7.2005. It was only thereafter the petitioners were allowed to carry on mining operation on 20.04.2006.
6. On these facts, the petitioners moved this Court by filing the aforementioned writ petitions being W.P. Nos. 15846 & 15847 of 2008 seeking for a direction to the respondent-appellant to extend the period of 283 days, since the petitioners could not carry on the mining operations from 11.7.2005 to 20.04.2006. The contention of the petitioners was that the lease have been granted for a period of five years from 19.9.2003 to 18.9.2008, but by virtue of the order of suspension dated 11.7.2005, the petitioners could not carry on the mining operation, and finally after filing several writ petitions, they have been permitted to quarry only on 20.4.2006. Thus, according to the petitioners, from 11.7.2005 to 20.04.2006 i.e., for 283 days, the petitioners could not quarry on the said land, because of the order of suspension. Hence, the petitioners are entitled to extension of lease for the period of 283 days.
7. The only issue therefore in the writ petition was as to whether the petitioners-lessees could be granted quarrying operation for 283 days, which could not be utilized by them in view of the order of suspension passed by the respondent-appellant on 11.7.2005. The learned single Judge held that the un-utilised period of 283 days undoubtedly is not due to the fault of the petitioners, and therefore, it is but reasonable and justifiable to allow the petitioners to carry on the quarrying operation for the said un-utilised period. Accordingly, the writ petitions were allowed and a direction was issued to extend the lease period of 283 days thereby permitting the petitioners to quarry on the said lands.
8. A somewhat similar issue was involved in W.P.No.5734 of 2010. In this case, a notification for retender-cum-auction was published in the Salem District Gazette Extra Ordinary issue No.1 dated 11.1.2005 proposing to lease out stone quarry in respect of S.F.No.9 over an extent of 2.73 hectares in Government Poromboke Land in P.N.Patty Village, Mettur Taluk, Salem District. The writ petitioner being the highest bidder was granted lease by proceeding dated 16.3.2005. The petitioner paid the lease amount of Rs.2,51,000/- and security deposit of Rs.25,100/-, and the lease was executed on 9.7.2005 for a period of five years from 09.07.2005 to 08.07.2010. The petitioners case is that since from the date of execution of the lease deed by the respondent, the petitioner has been carrying on quarrying operations in accordance with the terms of lease and never violated any of the terms and conditions. However, the petitioner received the notice dated 15.12.2006 alleging that one T.M.P.Muruganantham has alleged that quarrying in places like Ramamoorthy Nagar, Thengalvarai, Kottaikaradu in P.N.Patty Panchayat is endangering the cattle, etc. and may affect the Mettur Dam since quarries are situated near the water spread area. The respondent, therefore, directed the petitioner and other lessees to stop quarrying operation carried on by them. However, based on the test studies and conclusion of the Department of Mining Engineering, Anna University, Chennai, the respondent in his proceedings Roc.1087/2006/Mines-A dated 3.7.2008 again granted permission to the petitioner to carry on quarrying operation. The petitioner, therefore, alleged that for no fault of him, he could not carry on the quarrying operation from 15.12.2006 to 3.7.2008. Thus, for a period of 18 months and 18 days, which period the respondent temporarily suspended the quarrying activities of the petitioner. It is stated that having paid the lease amount for a full period of five years, the respondent ought not to have stopped the petitioners quarrying operations for 18 months and 18 days, and the petitioner has to be granted permission to carry on quarrying operation. The petitioner, therefore, sought a mandamus directing the respondent to allow the petitioner to carry on the quarrying operation for a further period of 18 months and 18 days.
9. Mr.J.Raja Kalifulla, learned Government Pleader assailed the impugned judgement passed by the learned single Judge as contrary to law and without jurisdiction. He firstly submitted that the learned single Judge has failed to take into consideration the legal position that under Rule 8(8)(i) of the T.N.Minor Mineral Concession Rules, 1959 after the period of expiry of the lease, there cannot and shall not be any extension of the lease period. According to the learned Government Pleader in no case the period of lease shall be extended. It was contended that there is no provision for extension of lease under the aforesaid Rules. Learned Government Pleader further submitted that the appellant State Government is empowered to control the quarry operations and in the event litigations arose regarding the lease boundary, government is empowered to conduct survey work in the lease area by suspending the quarrying operations. He relied upon the decisions of the Madras High Court in the case of L.Boomiraja Vs. The District Collector, Dindigul District, (2005) 3 M.L.J. 280, R.Govindasamy Vs. The District Collector, Erode District, 2004 (1) CTC 139 and A.Kumar & Others Vs. The District Collector, Kancheepuram, 2010 Writ L.R. 285.
10. On the other hand, learned counsel appearing for the respondent submitted that the provision of Rule 8(8) of the said Rules does not apply to the facts of the present case. According to the learned counsel since the suspension of quarry operation was not because of the fault of the lessee he is entitled to get extension of lease period.
11. Mr.A.L.Somayaji, learned Senior Counsel appearing for the petitioner in the writ petition viz., W.P.No.5734 of 2010 submitted that the petitioner is carrying on quarry operations in accordance with the terms of the lease and never faulted any of the terms and conditions. All of a sudden the respondent issued notice to the petitioner and other lessees dated 15.12.2006 directing them to stop the quarry operations on the ground that one person has alleged that quarrying in the place in question is endangering the cattle, etc. and may affect the Mettur Dam since quarries are situated near the water spread area. However, based on the test studies and conclusion of the Department of Mining Engineering, Anna University, Chennai the petitioner was granted permision to carry on the quarrying operations. According to the learned counsel, therefore, for no fault of the petitioner he could not carry on quarrying operations for 18 months and 18 days because of the suspension of the quarrying activity by the respondents. Hence, the petitioner is entitled to carry on the quarrying operations for the remaining period of lease. Learned Senior Counsel lastly submitted that in the similar facts and circumstances, one Mr.K.Selvam, another lessee, filed W.P.No.27912 of 2008, which was allowed by this Court by judgment dated 03.04.2009 and directed the respondents to grant permission to carry on the quarrying operations for a period of 16 months. It is stated by the learned Senior Counsel that the respondent did not challenge the aforesaid order rather implemented the same by granting permission to the lessee to carry on quarrying operations for the period when he was stopped from carrying on mining operations.
12. Before deciding the issue involved in these cases, we would like to first discuss the decisions referred to by the learned Government Pleader in support of the fact that period of lease cannot in any event be extended after the expiry of the period of lease.
13. In L.Boomiraja vs. The District Collector, Dindigul reported in 2005 (3) L.W 91=(2005) 3 MLJ 280, a Division Bench of this Court considered the power of the Court to direct extension of lease. In that case, the lease deed under the Mineral Concession Rules was executed by the Government in favour of the petitioner on 26.9.2001 for a period from 1.4.1998 to 31.3.2003. The lease deed was executed on 26.9.2001 and registered on 13.10.2001. The petitioner filed the writ petition praying for extension of period of lease alleging that it should have deemed to have commenced from the date of execution of lease deed. In other words, the petitioner claims that the lease had commenced from 26.9.2001 for a period of five years upto 26.9.2006. The learned single Judge treated the lease deed having been executed on 8.10.1998. When the matter came up before the Division Bench, it was held that Clause (ii) of Rule 8 of the Rules is mandatory and that the Court has no power to extend the lease. The Court was of the opinion that the only relief the lessee can get his to get direction for refund of the proportionate amount of the lease amount/damages/compensation in accordance with law, but not the extension of lease.
14. In the case of Govindasamy, R v. The District Collector, Erode District reported in 2004 (1) CTC 139, the petitioner, who was a successful bidder, was granted lease to quarry ordinary rough stones for a period of five years from 20.1.1998 to 19.1.2003. The petitioner-lessee contended that they could not effectively operate the impugned quarry area for a period of nine months due to heavy rainfall and hence, he sought direction for extension of lease. The learned single Judge of this Court dismissed the writ petition holding that the ground taken by the petitioner for extension of lease cannot be accepted.
15. In the case of A.Kumar & Others Vs. The District Collector, Kancheepuram, 2010 Writ L.R.285 the fact was that the petitioners being successful bidders were granted lease of quarrying of rough stone for a period of 5 years from the date of execution of lease deeds. The case of the petitioners was that though the lease deeds were executed during February, 2003 on the said date they could not start quarrying operations because they had to do preliminary works like cleaning the quarry and other incidental development activities. They also contended that pursuant to amendment in Rule 8(8) of the T.N.Minor Mineral Concession Rules they became entitled for extension of lease period. Rejecting the prayer made by the writ petitioners a Division Bench of this Court held that the period of lease for quarrying rough stone cannot be extended for further period as because they have enjoyed the rights of quarrying for the full period.
16. It is, therefore, clear that the ratio decided by this Court in the aforesaid three judgements cannot be made applicable in the facts of the present case.
17. As noticed above, the respondents in the appeals and the petitioner in the present writ petition were granted quarry lease for a period of five years. But, in the midst of the lease period the lease was suspended and/or lessees were stopped from doing quarrying operations. The respondents in the writ appeals had to move this Court by filing writ petitions for the issuance of necessary direction to the appellants and further stating that because of the suspension of the lease period the appellants will have to consider extension of the period of lease.
18. In the case of V.Karnal Durai vs. District Collector reported in 1999 (1) SCC 475, the District Collector, Tuticorin by notification invited tender for grant of lease of sand quarry for a period of two years from 1.1.1995 to 31.3.1997. The said advertisement was amended and a modified as a lease for three years i.e., upto 31.3.1998 rather than for two years. On 23.2.1995, the petitioner submitted his tender and offered a sum of Rs.1,60,000/- p.a which was the highest amount. The Collector did not accept the offer, but rejected the same by order dated 22.3.1995 in exercise of the power under Rule 8(6)(b)(ii) of the Tamil Nadu Minor Mineral Concession Rules, 1959. The Collector felt that the appellants offer even though was the highest, was less than the upset price as estimated by the Department. The appellant preferred an appeal to the Director of Geology and Mines, which was allowed by order dated 1.4.1997 on the ground that by closing the date of the tenders, namely, 6.3.1995, the upset price was not fixed by the Assistant Geologist. The Director also held that the offer of the petitioner ought to have been accepted. By the date when the Director allowed the appeal on 1.4.1997, part of the lease period from 1.4.1995 to 1.4.1997 had already expired. Therefore, the Director granted lease only for the remaining period from 1.4.1997 to 31.3.1998. Aggrieved by the said order to the extent that the full three years lease was not granted by the Director, the petitioner filed writ petition contending that the Director should have given the benefit of amended Rule 8(8)(a), which stated that the lease should run for a period of three years from the date of execution of the lease deed. The learned single Judge dismissed the writ petition holding that the petitioner could not claim that the three years period was to run as per amended 8(8)(a) of the Rules. The matter ultimately went to the Supreme Court. The question before the Supreme Court was as to whether the petitioner is entitled to quarry of lease for three years from the date of execution of the lease deed as per Rule 8(8)(a) of the Rules, as amended by G.O.Ms.No.235 dated 19.12.1996. The Supreme Court observed:-
20. In this context, we may point out that Rule 8(8)(a)(i) as it stood before the amendment had a proviso that the lease amounts for the second and subsequent financial years shall be fixed by way of an annual increase of 20%. We find, however, that the said proviso was dropped w.e.f. 19-12-1996. This is clear from the fact that the amendment states
for sub-clause (i) including the provisos, the new amendment is substituted.
21. In the present case, the appellants tender was rejected on 22-3-1995 and the provision for periodic increases was there till 19-12-1996 only. In the circumstances of the case, we have put it to the appellants Senior Counsel that in the event the appeal is to be allowed, we will apply the old Rule up to at least 19-12-1996 so far as the rate is concerned. Learned Senior Counsel agreed for such enhancement. The enhancement would be roughly for 2 years. In the peculiar circumstances of the case, we direct that the lease amount will stand increased, to start, by 40% of the offer, i.e., instead of Rs.1.60 lakhs, it will be Rs.2.24 lakhs per annum. The period of lease will run for a period of 3 years from the date of execution of the lease as stated in the amended Rule, at the rate of Rs. 2.24 lakhs per annum. The appellant shall have to pay the seigniorage also as per the amended Rules in addition to the lease amount. Time for payment of the enhancement in the lease amount or any balance of the lease amount or seigniorage will be one month from today.
19. In the case of Beg Raj Singh Vs State of U.P. & Ors. (2003 (1) SCC 726), the petitioner applied for sand mining lease in accordance with the policy decision contained in the relevant GO. The Collector granted the said lease to the petitioner. The lease was executed for a period of one year w.e.f. 3.6.1998. Before the expiry of the term of the lease, the petitioner sought for a renewal for another period of two years. The Collector granted such extension vide order dated 20.12.2000; the principal consideration for granting such renewal being that the lease, as originally executed, should have been for a minimum period of three years which having not been done and erroneously the lease having been executed for a period of one year, the petitioner was entitled to such extension for two years. Around the time when the petitioner was allowed the extension of two years, the Government had taken a decision to hold an auction of the sand mining lease. Respondent 3, a competitor aspirant of the petitioner, preferred a revision before the State Government against the order of the Collector dated 20.12.2000. The revision was filed after expiry of one year and four months from the date of the order of extension. The State Government condoned the delay in filing the revision on the ground that the revision was filed within the period of limitation calculated from the date of the knowledge of Respondent 3. The issue as to locus standi was also decided in favour of Respondent 3. The State Government, vide its order dated 22.4.2002, set aside the order of the Collector influenced mainly by the consideration that the State Government having decided to hold an auction of the mining rights, it was likely to gain higher revenue and therefore it was in public interest to transfer mining rights by holding an auction. The petitioner preferred a writ petition before the High Court which was dismissed. Though the High Court opined that the order of the Collector granting two years extension of mining rights to the petitioner was justified and the State Government was not justified in interfering and setting aside the order of the Collector but it denied the relief to the petitioner on the ground that auction would subserve public interest by fetching higher royalty to the State Government and further, because the period of three years calculated from the date of the original grant had in any case come to an end and therefore, no relief could be allowed to the petitioner. Against such order, the petitioner filed the Special Leave Petition before the Supreme Court. Allowing the Special Leave Petition, their Lordships of the Supreme Court observed as under :-
5. The only submission made by the learned counsel for the petitioner is that the petitioner has been given a very rough deal by the State Government and the injustice done to the petitioner the High Court has failed to redeem. He had identified and explored the new mining area and made huge expenditure in making the mining area approachable and therefore it was the legitimate expectation of the petitioner that he would be entitled to operate the mine for a minimum period of three years as per the declared policy of State Government. The State Government should not have interfered with the order of the Collector and that too at the instance of a third party–the respondent No. 3, when no auction was held and no right was created in favour of the respondent No. 3. Matter as to the grant or renewal of the lease for a total period of three years was in accordance with the policy of the State Government and was a matter between the State and the petitioner. It was submitted at the end that the petitioner has been agitating his right diligently throughout and the time lost in prosecuting legal proceedings upto the High Court wherein the plea raised by the petitioner laying challenge to the order of the State Government was found to be meritorious and the order of the State Government held liable to be set aside, the petitioner should not have been denied relief and should have been allowed to operate the mine for that period by which the mining operation by the petitioner fell short of three years time.
6. Having heard the learned counsel for the petitioner, as also the learned counsel for the State and the private respondent, we are satisfied that the petition deserves to be allowed. The ordinary rule of litigation is that the rights of the parties stand crystallized on the date of commencement of litigation and right to relief should be decided by reference to the date on which the petitioner entered the portals of the Court. A petitioner, the though entitled to relief in law, may yet be denied relief in equity because of subsequent or intervening events, i.e. the events between the commencement of litigation and the date of decision. The relief to which the petitioner is held entitled may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law. There may be other circumstances which render it inequitable to grant the petitioner any relief over the respondents because of the balance tilting against the petitioner on weighing inequities pitted against equities on the date of judgment. Third party interests may have been created or allowing relief to the claimant may result in unjust enrichment on account of events happening in between. Else the relief may not be denied solely on account of time lost in prosecuting proceedings in judicial or quasi-judicial forum and for no fault of the petitioner. A plaintiff or petitioner having been found entitled to a right to relief, the Court would as an ordinary rule try to place the successful party in the same position in which he would have been if the wrong complained against would not have been done to him. The present one is such a case. The delay in final decision cannot, in any manner, be attributed to the petitioner. No auction has taken place. No third party interest has been created. The sand mine has remained un-operated for the period for which the period of operation falls short of three years. The operation had to be stopped because of the order of the State Government intervening which order has been found unsustainable in accordance with stipulations contained in the mining lease consistently with the G.O. issued by the State of Uttar Pradesh. Merely because a little higher revenue can be earned by the State Government that cannot be a ground for not enforcing the obligation of the State Government which it has incurred in accordance with its own policy decision.
20. In the case of S.Ganesan Vs District Collector, Tiruchirappalli (JT 2002 (3) SC 90), pursuant to the notification calling for tender for grant of leasehold rights to quarry sand jelly in SF No.61 in Manamedu Village, Tiruchi District in the State of Tamil Nadu for a period of three years from 14.1.1996 to 31.3.1999, the appellant was the highest bidder offering an amount of Rs.19 Lakhs per year and he deposited the amount towards the first year. One unsuccessful bidder, however, filed writ petition before the High Court in which interim injunction was granted restraining the respondents from granting lease. In the meanwhile, the bid in favour of the appellant was confirmed. Learned single Judge, subsequently, dismissed the writ petition on 29.10.1999 as having become infructuous because the lease period for which the lease was granted itself had expired. Thereafter, the appellant made a representation to the State Government to direct grant of leasehold right as there was no impediment in the way of the Government. The appellant, relying upon Rule 8-A sought quarry of the lease for three years from the date on which the lease was executed. The Collector rejected the representation on the ground that the new rules had come into force and in the new rules, lease could not be granted in favour of the appellant. The appellant, therefore, filed a writ petition before the High Court and the matter ultimately went to the Supreme Court. Allowing the appeal, their Lordships held as under :-
6. In somewhat identical circumstances when a peculiar situation arose, this Court in V.Karnal Durai v. District Collector, Tuticorin and Anr. (1999) 1 SCC 475 taking note of the fact that for no fault of the appellant the lease period having expired, the lease could not be granted in his favour and, therefore, directed grant of lease of the land in question on appropriate terms. In this matter, land is still available for being leased as per letter of the deputy director (G&M), Tiruchirapalli to which we have adverted to earlier. In the circumstances arising in this case, we think the order made by the High Court in the writ petition and in the writ appeal should be set aside and the writ be allowed as was done in V. Karnal Durai’s case but subject to the condition that the appellant shall make further payment in respect of the lease amount per year by enhancing the same by 50% of the earlier bid. This amount is fixed by us taking note of the fact that the money paid by the appellant has been with the respondent for more than a period of 5 years. All other terms shall be governed by the new rules. The department shall now give reasonable time to the appellant to deposit the amount of lease for the entire period of 3 years which shall not be less than four weeks from today.
21. We have given our anxious consideration to the submission made on either side and have taken note of a law declared by the Hon’ble Supreme Court in the Judgments mentioned supra. Hence, it can safely be concluded that the ratio decided by this Court in the cases of L.Boomiraja Vs. The District Collector, Dindigul District, (2005) 3 M.L.J. 280, R.Govindasamy Vs. The District Collector, Erode District, 2004 (1) CTC 139 and A.Kumar & Others Vs. The District Collector, Kancheepuram, 2010 Writ L.R. 285 are distinguishable.
22. As noticed above, the case of the respondents in W.A.Nos.1018 and 1019 of 2010 is that the appellant issued a tender notice under Rule 8(1)(a) of the Tamil Nadu Mines and Mineral Concession Rules, 1959, in respect of various stone quarries in Namakkal District. The respondents participated in the tender and became the successful bidders. Thereafter, lease deeds were executed on 19.09.2003 for a period of five years. The said lease was suspended by an order dated 11.07.2005, which was challenged by filing two writ petitions. A learned single Judge of this Court by order dated 08.08.2005, directed the appellant to measure the property (quarry site) and hand over the same to the respondents within three weeks and further observed that the period of suspension suffered by the respondents shall be taken into consideration for extending the grant of the lease period by the appellant herein.
23. The learned Senior counsel appearing for the respondent/writ petitioner submits that the order passed in the writ petition dated 08.08.2005, has become final and no appeal was filed by the appellant against the said order. Based on the direction issued in the writ petition, the lands were measured on 24.08.2005 and a report was submitted. Based on such report a show cause notice was issued to the respondents and an enquiry was also conducted however no final orders were passed. Therefore, the respondents approached this Court by filing a writ petition and this Court by order dated 26.10.2005, directed the appellant to pass final order within two weeks. Since no final order was passed, the respondents challenged the order of suspension dated 11.07.2005 and an order of interim injunction was granted by this Court and subsequently, on 20.04.2006, the respondents were granted permission to quarry. Thus, it appears that for the period between 12.07.2005 to 20.04.2006, the respondents could not quarry.
24. The learned Single Judge, who heard the writ petition opined that during the said period, the respondents were prevented from quarrying and they cannot be blamed for the same and therefore, it is reasonable and justifiable to allow them to quarry for the unutilized period. This direction is called in question in the present writ appeals.
25. In the preceding paragraph of this judgment, we have extensively indicated the law laid down by the Hon’ble Supreme Court and this Court in various decisions in the matter of extension of lease. One common feature in all those cases are that the Hon’ble Supreme Court as well as this Court analyzed the facts and circumstances of each case and granted relief or declined to grant relief. No doubt the settled legal position is that the period of lease cannot be extended as there is no rule providing for such extension. Yet, there has been some departure from the said rule in the decisions referred to supra.
26. As noticed in the case of Beg Raj Singh Vs State of U.P. & Ors. (2003 (1) SCC 726), the Hon’ble Supreme Court granted the relief in favour of the lessee by observing that the sand mine could not be operated as it has been stopped because of the order of the State Government and such order having been unsustainable in accordance with stipulations contained in the mining lease, the Supreme Court granted the benefit to the lessee therein. The Supreme Court also took note of the fact that in the interregnum, no third party interest has been created. In the case of the respondents also, the quarry could not be operated for a period of 283 days on account of the order of suspension. As noticed above, this Court by order 26.10.2005 in W.P.Nos.34567 & 34568 of 2005, directed the appellant to pass final orders on the show cause notice issued to the respondents. Despite direction issued, no final orders were passed, which compelled the respondents to approach this Court once again by way of the two writ petitions in W.P.Nos.1207 & 1208 of 2006, challenging the order of suspension dated 11.07.2005, and in the said writ petition, an order of interim injunction was also granted. Therefore, it is clear that the appellant did not avail the opportunity granted by this Court in its order dated 26.10.2005 and chose to remain dormant in the matter. Thus, as in the case of Bag Raj Singh, referred supra, the respondent herein cannot be blamed for the period during which the quarry could not be operated.
27. In the writ petition in W.P.No.5734 of 2010, the petitioner was the highest bidder in a tender conducted by the District Collector, Salem in respect of a stone quarry lease in S.F.No.9, P.N.Patty Village, Mettur Taluk, Salem District. The petitioner paid the lease amount of Rs.2,51,000/- and Security Deposit of Rs.25,100/- and lease deed was executed on 09.07.2005 for a period of five years from 09.07.2005 to 08.07.2010. Based on a complaint received from a third party, official respondents in the writ petition directed the petitioner to stop quarrying operation. Subsequently, test audits were conducted by the Department of Mining Engineering, Anna University, Chennai and the report of the expert appears to have revealed that the allegation in the complaint made by the third party is not tenable. Thereupon, the writ petitioner was permitted to commence quarrying operation and in that process for a period of 18 months and 18 days (i.e.) from 15.12.2006 to 03.07.2008, the writ petitioner was unable to quarry on account of the order of suspension passed by the official respondent. Thus the case of the writ petitioner in W.P.No.5734 of 2010, is also identical to that of the case of the respondents in the writ appeals. The case of T.Paulraj vs. The District Collector, Kanyakumari District @ Nagercoil, referred supra is couched entirely on different set of facts. The petitioner in the said case sought for a direction to extend the period of lease as there was a delay in confirmation of the auction. In such circumstances, this Court following the earlier decisions held that in the absence of any rules, it is not possible to grant any relief to the appellant therein. However, the case before us is different as indicated above. Considering the peculiar facts and circumstances of the case, we may at this stage observe that by permitting the respondent/writ petitioner to quarry for the unutilized period cannot be stated to be rewriting the terms of the lease.
28. The learned Senior counsel appearing for the petitioner would submit that the action of the appellant in not extending the benefit to the respondent/writ petitioner is discriminatory and violation of Article 14 of the Constitution of India, as the appellant has implemented the direction issued by this Court in W.P.No.27912 of 2008, and the petitioner therein is also a similarly placed person as that of the respondents/writ petitioner. The petitioner in W.P.No.27912 of 2008, challenged an order passed by the District Collector, Salem and sought for a direction upon him to grant permission to carry on quarrying operation in the stone quarry for a period of 16 months during which the quarry was suspended. The Government resisted the prayer in the writ petition by raising certain grounds which have been raised by the appellant herein in these appeals. The learned Single Judge by relying on the decision of the Hon’ble Supreme Court in Bag Raj Singh, and considering the facts of the case allowed the writ petition and directed the District Collector, Salem to grant permission to quarry for a period of 16 months. The said order and direction issued in the said writ petition being W.P.No.27912 of 2008, was implemented by the District Collector, Salem by his proceedings dated 19.06.2009, and the petitioner therein was permitted to quarry for a period of 16 months. Therefore, the Government cannot adopt different yardstick in respect of two cases, where the facts and circumstances are substantially similar.
29. Therefore, we are persuaded to accept the submission made by the learned counsel appearing for the respondent/writ petitioner in this regard as denying benefit to the writ petitioner would amount to discrimination. We may at this stage reiterate that the reasoning given by us in these appeals/writ petition are confined to the facts and circumstances of the case and cannot be read in isolation are treated as a precedent.
30. For all the above reasons, the writ appeals filed by the appellant are dismissed and the order passed by the learned Single Judge is confirmed and the writ petition in W.P.No.5734 of 2010 is allowed as prayed for. Considering the facts and circumstances of the case, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
gln/pbn/sm
To
The District Collector,
Salem District @
Salem