IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:06.04.2009
CORAM:
THE HON'BLE MR.JUSTICE P.JYOTHIMANI
AND
THE HON'BLE MRS.JUSTICE ARUNA JAGADEESAN
..
WRIT APPEAL NO.132 of 2008
and M.P.No.1 of 2008
..
1. The State of Tamil Nadu
rep. By its Commissioner
and Secretary to Government
Industries Department
Fort St.George, Chennai 9.
2. The District Collector
Tiruchi District
Tiruchi. .. Appellants
vs.
C. Velayutham .. Respondent
Writ Appeal is filed against the order of the learned single Judge made in W.P.No.5253 of 1998 dated 02.01.2007.
For appellants : Mr.R.Thirugnanam
Spl.Govt.Pleader
For respondent : Mr.AR.L.Sundaresan,Sr.Counsel
for Mr.V.Sanjeevi
..
JUDGEMENT
P.JYOTHIMANI,J.
The respondents in the writ petition have filed the present appeal against the order in W.P.No.5253 of 1998 dated 2.1.2007, by which the learned Judge has allowed the writ petition based on the decision of the Supreme Court reported in State of Tamil Nadu v. P.Krishnamoorthy [(2006) 4 SCC 517], directing that the respondent herein, viz., the writ petitioner, would be entitled to quarry for the period of 6 months in respect of the area given in lease in the proceedings of the District Collector dated 20.3.2001.
2. The second appellant, District Collector has notified calling for applications for sand quarry on the left bank of Cauvery river from miles 13/0 to 15/2 in between Karakkadu and Thailampalayam villages in Musiri taluk, in District Gazette notification dated 17.3.1993, for a period of three years under Rule 8(1) of the Tamil Nadu Minor Mineral Concession Rules, 1959. The total extent is stated to be 227.0 hectares. The respondent herein is stated to be the highest bidder and in spite of it, the second appellant rejected the respondent’s application by order dated 7.4.1994 on the basis that the respondent is an affluent person. Against that order, the respondent/writ petitioner has filed an appeal before the Director of Geology and Mining, who dismissed the appeal on 6.10.1994. It was, thereafter, the respondent filed W.P.No.19645 of 1994 in which there was an order of interim injunction restraining the appellants from leasing out the quarry pending the said writ petition.
3. It appears that the respondent had made several representations to the second appellant which were not considered and the respondent also filed W.P.No.15111 of 1996 for Mandamus to dispose of the said representation and the writ petition was disposed of on 28.10.1996 directing the second appellant to dispose of the representation of the respondent. It is stated that the second appellant, while considering the representation, has insisted the respondent to withdraw the earlier writ petition and it was, in those circumstances, the earlier writ petition came to be withdrawn. By order dated 6.2.1997 the second appellant, District Collector has granted lease for a period of three years by raising the amount to Rs.27 lakhs and restricting the area to 10 hectares out of 227 hectares. The respondent appears to have made a representation to the Government stating that originally he quoted Rs.7 lakhs which was arbitrarily increased by the second appellant to Rs.27 lakhs and the said plea came to be rejected by the Government on 3.3.2008. It was, as against the said order of rejection, the present writ petition came to be filed.
4. While admitting the writ petition, there was an interim order of injunction restraining the appellants from leasing out the remaining area which order came to be extended subsequently. Pending the writ petition, the respondent herein has filed WP.M.P.No.30491 of 2000 praying for permission to quarry the sand from the notified area viz., from miles 13/0 to 15/2 between Karaikkadu and Thailampalayam villages on the left bank of Cauvery river in Musiri taluk excluding 10 hectares for which lease was already granted. By order dated 19.12.2000, a learned single Judge of this Court directed the appellants to allow the respondent herein to quarry the area notified in the gazette notification dated 17.3.1993 less the area already granted on lease on 6.4.1997 by enhancing the lease amount by 20% over and above the lease amount fixed in the order dated 6.2.1997. The order is as follows:
“…. the second respondent is directed to allow the petitioner to quarry the area notified in the Gazette Notification dated 7.3.1993 less the area already granted on lease on 6.4.1997 by enhancing the lease amount by 20% over and above the lease amount fixed in the order dated 6.2.1997.”
5. The present appellants, on the impression that the lease amount in respect of larger extent viz., 217 acres should be proportionately increased, filed clarification petitions in WP.M.P.Nos.16925 and 10752 of 2001 to clarify the earlier order dated 19.12.2000 passed in WP.M.P.No.30491 of 2000. The learned Judge has passed the order on the said clarification petitions on 18.7.2001.
6. When the writ petition was pending, by virtue of issuance of G.O.Ms.No.95,Industries (MMC.1) dated 1.10.2003, the Government took over all sand quarrying rights by itself. The said G.O. was challenged by way of filing writ petition and the Government Order was ultimately upheld by the Supreme Court on appeal filed by the Government in State of Tamil Nadu v. P.Krishnamoorthy [(2006) 4 SCC 517]. While construing Rule 38A which was incorporated with effect from 1.10.2003, the Supreme Court has passed the following order (paragraph-36 of the judgment):
“In regard to mining leases subsisting as on 2.10.2003, we have read down Rule 38A as terminating such leases in terms of the contract (lease deeds) by six months, without assigning cause and without any liability to pay compensation. Such of those writ petitioners (the respondents herein) whose leases were subsisting on 2.10.2003 (and whose activities were stopped with effect from that day) will be entitled to carry on the quarrying activities for a period of six months or for the actual unexpired period of the lease (as on 2.10.2003), whichever is less. This benefit will be available to even those who have orders of the court for grant of mining leases, but where mining leases were not executed for one reason or the other. It is, however, made clear that the State Government is at liberty to prematurely terminate the leases for any of the causes mentioned in section 4A(2), by giving a notice and hearing under section 4A(3), if they want to terminate any lease within the said period of six months.”
In the said operative portion, the Supreme Court has held that in respect of cases where leases was subsisting as on 2.10.2003, such lessees would be entitled to quarrying activities for a period of six months or for the actual unexpired period of the lease whichever is less. It is also stated that the said benefit would be available even to those who were not granted lease, but were doing mining operations by orders of the Court.
7. While hearing the writ petition, the learned Judge, by taking note of the earlier order of clarification dated 19.12.2000, found that pursuant to the earlier order dated 19.12.2000, the second appellant, the District Collector, in his proceedings dated 20.3.2001, granted lease for a period of three years, however the lease deed was not executed. The fact remains that the respondent was not allowed to quarry. It was, in those circumstances, the above G.O. has come into existence. The learned Judge, taking note of paragraph 36 of the Supreme Court judgment, has permitted the respondent to quarry for a period of six months. It was, against the said order, the appellants have filed the present appeal.
8. The order of the learned Judge is assailed on the ground that as per the judgment of the Supreme Court, especially with reference to paragraph 36, the benefits were given only to the parties before the Supreme Court and even though the respondent may be a similarly situated person, the respondent is not entitled for the benefit. It is the further case of the appellants, as submitted by the learned Special Government Pleader, that even after the clarifications were made, the respondent has not paid the lease charges which should be proportionate to the amount of lease which was earlier prescribed for 10 hectares of land. According to the learned Special Government Pleader, the payment made by the respondent to the extent of Rs.32,40,000/- stated to be the lease amount with 20% increase can only be construed to be the amount paid in respect of 10 hectares of land and therefore, the same cannot be taken as being in conformity with the order of clarification passed by this Court. According to the learned Special Government Pleader, the respondent is not entitled for the benefit of the Supreme Court even otherwise.
9. His further contention is based on Rule 8(6)(e) of the Tamil Nadu Minor Mineral Concession Rules, 1959, which contemplates that the lease deed shall be executed by the applicant on the appointed day and the respondent has never come forward to execute the lease deed and therefore, it cannot be said that the respondent is having any right. The learned Special Government Pleader would also rely upon Rule 8(7) which empowers the District Collector to cancel the lease in case of any violation on the part of the applicant.
10. On the other hand, Mr.AR.L.Sundaresan, learned senior counsel appearing for the respondent/writ petitioner would submit that admittedly, out of 227 hectares of land, 10 hectares of land was granted on lease for a period of three years and on the third year the amount of lease was Rs.38,88,000/-. His submission is that an interim order was passed by this Court by which there was a direction to permit the respondent to quarry the remaining extent of land, viz., 217 hectares, on the payment of the above Rs.38,88,000/- with a further increase of the amount by 20%. In fact, the Government was on the assumption that the said order was not proper, and hence, it filed petition for clarification, in which the learned Judge has clearly held that the said amount of Rs.38,88,000/- denotes the lease charges for the remaining 217 hectares. He also submits that in the meantime, the respondent has chosen to restrict the extent of land to 25 hectares and in the clarification it is stated that the amount of Rs.38,88,000/- with additional increase by 20% should be taken as the amount in respect of the restricted 25 hectares and therefore, in view of the order of clarification which has become final, it is not open to the appellants to construe the same to their convenience. It is also his submission that the judgment of the Supreme Court in paragraph 36, as stated supra, is applicable to the case of respondent since he is similarly situated as that of the respondents before the Supreme Court wherein specific direction has been given permitting those persons who are either having subsisting lease or operating the quarry as on 2.10.2003, are to continue the same for a period of six months or till the period of lease whichever is less. He further submits that even by applying Article 141 of the Constitution of India, the respondent is entitled to the benefit of the above judgment of the Supreme Court.
11. We have heard the learned Special Government Pleader for the appellants and the learned senior counsel for the respondent and perused the entire records.
12. It is not in dispute that on the appointed date viz., 2.10.2003, the respondent was having a valid lease to quarry which is made clear from the order of the District Collector dated 20.3.2001. In the said order, the District Collector, while narrating that based on the earlier notification of the year 1993, the petitioner was granted lease for 10.00.0 hectares out of total extent of 227 hectares on yearly lease, stated that for the first year, the lease charge should be Rs.27 lakhs, for the second year it should be Rs.32,40,000/- and for the third year, with the further increase of 20%, the lease charge should be Rs.38,88,000/-. In fact, the order states that the respondent has paid the entire amount of Rs.98,28,000/- for the whole period of quarrying viz., from 14.2.1997 to 13.2.2000. It was, after completion of the said period, the respondent filed this writ petition, viz., W.P.No.5253 of 1998 and pending the writ petition, in WP.M.P.No.30491 of 2000 this Court directed that the entire remaining extent of land should be permitted by the appellants herein to quarry in favour of the respondent herein. While passing the interim order, by elaborately discussing various points raised by both the parties, the learned Judge has passed the following order:
“8. Hence, the second respondent is directed to allow the petitioner to quarry the area notified in the Gazette notification dated 7.3.1993 less the area already granted on lease on 6.2.1997 by enhancing the lease amount by 20% over and above the lease amount fixed in the order dated 6.2.1997. The petitioner is also liable to pay other legal dues which the lessee is liable to pay under the provisions of the Act.”
directing the second respondent therein viz., the District Collector to permit the respondent herein to quarry the area notified as per the Gazette notification dated 7.3.1993 less the area already granted on lease on 6.2.1997 by enhancing 20% over and above the lease amount fixed by order dated 6.2.1997.
13. By the above said order dated 6.2.1997, the District Collector, as stated above, has permitted the respondent to quarry 10 hectares of land out of total extent of 227 hectares. A reading of the order dated 20.3.2001 passed by the District Collector makes it very clear that the District Collector has understood the order of this Court passed in WP.M.P.No.30491 of 2000 dated 19.12.2000 that the direction was to permit the respondent herein to quarry the remaining extent viz., 217 hectares for an increased lease amount by 20% over and above the amount prescribed by the District Collector in the order dated 6.2.1997. However, the District Collector, having found that the extent being more than 10 hectares, he has no jurisdiction, referred the matter to the Government. After permission was granted by the Government, the District Collector has passed the order dated 20.3.2001 permitting the respondent to quarry the remaining extent of 217 hectares for a period of three years for the increased lease amount by 20%. In the said order it is made clear by the District Collector that if the amount is not paid, the lease will be cancelled. Along with the letter dated 28.3.2001 the respondent has enclosed challan for payment of the amount of Rs.32,40,000/- stated to be the lease amount with 20% increase. He has also enclosed challan for payment of other seigniorage, area assessment charges, etc.
14. It is true that the amount of Rs.32,40,000/- which the respondent was asked to pay does not actually denote the amount as directed by this Court as stated above in the interim order. Under the earlier lease for three years, the lease amount for the third year payable by the respondent would be Rs.38,88,000/- and therefore, the respondent should have paid the said amount with an addition of 20% increase which would come to Rs.45,65,600/- and instead of paying the said amount, by mistake, the respondent has paid Rs.32,40,000/-. However, the fact remains that the District Collector, the second appellant, has not chosen to refuse to receive the said amount or cancelled the earlier order dated 20.3.2001 on the basis that the terms of the order have not been complied with by the respondent.
15. In the clarification petitions filed by the appellants in WP.M.P.Nos.16925 and 10752 of 2001 in W.P.No.5253 of 1998, the learned Judge, by order dated 18.7.2001, again after elaborately discussing the earlier orders, has held that the earlier order is unambiguous, and ultimately disposed of the petitions in the following words:
“6. The earlier order is unambiguous. The respondents are directed to permit the petitioner to quarry the entire area as published in Gazette dated 17.3.93 minus what has been grated to him in the earlier instance, on the petitioner making 20% over and above what he has paid for the earlier three years as lease amount. Now the petitioner himself filed an application restricting the area to 25 hectares. The area can very well be restricted to 25 hectares but the lease amount cannot be restricted. The respondents are directed to demarcate the 25 hectares specifically after issuing prior notice to the petitioner. The lease amount directed to be paid by the petitioner for the area would be 20% over and above the lease amount paid for last of the three years for which he was granted quarry lease in the year 1997. This 20% over and above of 38,88,000/- covers the area of 25 hectares. The petitioner has to pay 20% more for each of the following two years.
7. The petitioner has to make not only the 20% enhanced lease amount but also the seigniorage fee and other legal dues which are leviable by the Government from time to time. Any amount paid pursuant to the order of this Court dated 19.12.2000, has to be given credit to the amount directed to be paid by the petitioner by this order. The respondent, the District Collector is directed to execute the lease deed without any further delay.
16. A reading of the said order on clarification petitions makes it clear that though the respondent has restricted his claim of area to 25 hectares, the lease amount cannot be restricted. The learned Judge has further made it abundantly clear that the 20% over and above of Rs.38,88,000/- covers the area of 25 hectares. While so, it is certainly not open to the appellants to turn back and say that the amount of Rs.38,88,000/- with an addition of 20% cannot be taken as the amount for the land to the extent of 25 hectares. The said order of the learned Judge has become final in respect of the clarification sought for by the appellants themselves. Thereafter, the learned Judge, while disposing of the writ petition, has made it clear that the respondent is entitled for permission to quarry for a period of six months on the enhanced amount. In such view of the matter, it is certainly not open to the appellants now to say that the amount of lease should be much more and it should be proportionate to the amount fixed for the earlier 10 hectares of land.
17. It is also not open to the appellants now to state that the respondent was not ready in executing the lease deed, inasmuch as he did not pay the amount as per the calculation of the Government and therefore, by applying Rule 8(6)(e), the respondent is not entitled for the benefit. Rule 8(6)(e) of the Tamil Nadu Minor Mineral Concession Rules, 1959 reads as follows:
“A lease deed shall be executed by the applicant on the appointed day and time with a map of the demarcated leased out area appended to it.”
Even by applying the said rule, it is not the case of second appellant viz., the District Collector that he has asked the respondent to execute lease deed with an appointed day. As far as the power of the District Collector under Rule 8(7) which is as follows:
“8(7). Whether the District Collector has granted a quarrying lease to an applicant, if the applicant fails to produce the original challan for remittance of the amounts specified in the lease granting order or fails to produce the signed copy of the demarcated map of the area or fails to produce the required stamp papers for preparing the lease deed or fails to execute the lease deed within the stipulated time, the District Collector may cancel the order granting the lease to the defaulter and forfeit the earnest money deposit and all amounts paid by him to the State Government. In the case of an area for which there are two or more applicants, after cancellation of an order granting the quarrying lease to the defaulter, the District Collector may grant the quarrying lease [in favour of next below highest bidder or tenderer, subject to the provisions of sub rule 6(b)]. If the next highest bidder or tenderer is not communicating his acceptance of such offer of the District Collector within 10 days from the date of receipt of the District Collector’s offer, the District Collector shall issue fresh notification in the District Gazette calling for re-tender applications for the area concerned.”
the District Collector is certainly entitled to cancel the order granting quarry lease to a defaulter. Even assuming in the present case that the respondent has committed default in payment as per the calculation of the appellants, the District Collector has never invoked his powers under Rule 8(7) of the the Tamil Nadu Minor Mineral Concession Rules, 1959 to cancel the lease granted in favour of the respondent on the ground that the respondent has committed default. In such view of the matter, it is not possible to accept the contention of the learned Special Government Pleader that the order of the learned Judge is liable to be set aside.
18. One other contention raised by the learned Special Government Pleader that the benefit granted in the judgment of the Supreme Court in State of Tamil Nadu v. P.Krishnamoorthy [(2006) 4 SCC 517], especially in paragraph 36, would only go to the respondents before the Supreme Court and that cannot be automatically extended to the respondent herein is also not sustainable. It may be true that the benefit was given by the Hon’ble Supreme Court to the respondents therein whose lease was subsisting as on 2.10.2003. But, it is not the case of the appellants that the case of the respondent herein is not similarly placed as that the case of the respondents before the Supreme Court. Even by applying the principles enunciated under Article 141 of the Constitution of India, the judgment of the Supreme Court in (2006) 4 SCC 517 would apply to the similarly situated circumstances and therefore, by no stretch of imagination it can be held that the respondent herein is not entitled for the benefit of the judgment of the Supreme in (2006) 4 SCC 517. In such view of the matter, there is absolutely no reason to interfere with the order of the learned Judge.
In the light of what is stated above, the writ appeal fails and the same is dismissed. No costs. Connected miscellaneous petition is closed.
Index:Yes/No Internet:Yes/No (P.J.M.J.,)(A.J.J.,) kh 06.04.2009 To 1. The Commissioner and Secretary to Government Industries Department Fort St.George, Chennai 9. 2. The District Collector Tiruchi District Tiruchi. P.JYOTHIMANI,J. and ARUNA JAGADEESAN,J. WRIT APPEAL NO.132 of 2008 06.04.2009