P.Sivalingam v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 6.4.2009CORAMTHE HON'BLE MR.JUSTICE P.JYOTHIMANIANDTHE HON'BLE MRS.JUSTICE ARUNA JAGADEESANW.A.No.1041 of 20081. The State of Tamil Nadu rep. by its Secretary to Government Industries Department Fort St.George, Chennai-9.2. The District Collector Krishnagiri District Krishnagiri... Appellants/RespondentsVsP.Sivalingam .. Respondent/Petitioner PRAYER: Against the order of the learned Single Judge dated9.4.2007 made in W.P.No.10769 of 2007. filed under Art.226of Constitution of India to issue a Writ of Mandamusdirecting the respondents to permit the petitioner to doquarry operation in the sand quarry totally measuring11.36.5 hectares, comprised in Survey S.F.Nos.26,32 and 33situated in OTTAMPATTI Village, uthangarai(TIC) KrishnagiriDistrict pursuant to the orders of the Hon'ble SupremeCourt passed in C.A.5572 of 2005 etc date of 24.3.2006For Appellants:Mr.R.ThirugnanamSpecial Government PleaderFor Respondent :No appearanceJUDGMENT(Delivered by P.JYOTHIMANI,J.)The respondents in the writ petition have filed thepresent writ appeal against the order of the learned Judgedated 9.4.2007, by which the learned Judge has directed theappellants to confer the benefits given to the partiesbefore the Supreme Court in State of Tamil Nadu & anotherv. P.Krishnamurthy & Others, [2006] 4 SCC 517 to therespondent, by granting him lease. https://hcservices.ecourts.gov.in/hcservices/

2. It is the admitted case of the parties that in respect of thelands measuring an extent of 11.36.5 Hectares comprised inS.F.Nos.26, 32 and 33 situated in Ottampatti Village, and 5.50.0Hectares and 6.85.5 Hectares comprised in Survey Nos.134/Part-1 and134/Part-2 respectively, situated in Tiruvanapatti Village, inUthangiri Taluk, Krishnagiri District, the respondent was grantedlease and the lease came to be terminated due to the advent ofG.O.Ms.No.95, Industries Department, dated 1.10.2003, by which theleasing operations in the Government lands have been taken over bythe Government.3. When the above said Government Order was challenged, thevalidity of the same was upheld by the Division Bench of this Courtand ultimately, when the Government filed an appeal before theSupreme Court, the Hon'ble Supreme Court in State of Tamil Nadu &another v. P.Krishnamurthy & Others, referred supra, while upholdingthe validity of the Government Order, read down a portion of Rule 38Aof the Tamil Nadu Minor Mineral Concession Rules, 1959, which wasincorporated by amendment, which came into force from 2.10.2003. TheHon'ble Supreme Court in the judgement in State of Tamil Nadu &another v. P.Krishnamurthy & Others, referred supra, has held asfollows:"36. In regard to mining leases subsisting as on 2-10-2003, we have read down Rule 38-A as terminating suchleases in terms of the contract (lease deeds) by sixmonths, without assigning cause and without anyliability to pay compensation. Such of those writpetitioners (the respondents herein) whose leases weresubsisting on 2-10-2003 (and whose activities werestopped with effect from that day) will be entitled tocarry on the quarrying activities for a period of sixmonths or for the actual unexpired period of the lease(as on 2-10-2003), whichever is less. This benefit willbe available to even those who have orders of the courtfor grant of mining leases, but where mining leases werenot executed for one reason or the other. It is,however, made clear that the State Government is atliberty to prematurely terminate the leases for any ofthe causes mentioned in Section 4-A(2), by giving anotice and hearing under Section 4-A(3), if they want toterminate any lease within the said period of six months.37. We, accordingly, allow these appeals in part. Inplace of the conditions stipulated by the Division Benchwhile upholding the validity of Rule 38-A, we hold anddirect as follows:(i) That part of Rule 38-A which vests the exclusiveright to quarry sand, in the State Government, is upheld.(ii) That part of Rule 38-A which purports to terminate https://hcservices.ecourts.gov.in/hcservices/ quarrying leases/permissions forthwith (from 2-10-2003)is read down in terms of para 26 above.(iii) The provision in Rule 38-A for refund ofproportionate lease amount for the unexpired period oflease and unadjusted seigniorage fee, shall remainundisturbed.(iv) It is made clear that except to the limited reliefas a consequence of reading down as per para 26 above,the respondents will not be entitled to any otherreliefs which have been granted by the High Court.(v) Parties to bear their respective costs."(emphasis supplied)4. It is by virtue of the above said direction of the Hon'bleSupreme Court stating that, in cases where the lease was subsistingas on 2.10.2003, namely the date on which the above Government Orderhas come into force, the parties therein will be entitled to carry onquarry operations for a period of six months or for the actualunexpired period of lease, whichever is less, the learned SingleJudge, while concluding that the said judgment operates as a judgmentin rem, directed the appellants to execute lease deed in favour ofthe respondent, if there are no other legal impediments. It is asagainst the said order, the appellants have filed the present writappeal.5. The contention of the learned Special Government Pleader forthe appellants is that the judgment of the Supreme Court, referredsupra, especially paragraph 36, cannot be treated as a judgment inrem and therefore, the finding given by the learned Judge, taking thesame as a judgement in rem and giving the benefit to the respondentis not valid in law. He would also rely upon the judgment of theSupreme Court in Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju &Others, [2006] 1 SCC 212 to substantiate his contention that thejudgment of the Supreme Court in State of Tamil Nadu & another v.P.Krishnamurthy & Others, referred supra, cannot be treated as ajudgment in rem at all.6. A reading of the judgment of the Hon'ble Supreme Court inState of Tamil Nadu & another v. P.Krishnamurthy & Others, referredsupra, especially paragraph 36, makes it clear that the partiesbefore the Supreme Court, who were having subsisting lease as on2.10.2003, will be entitled to carry on quarry operations for aperiod of six months or for the actual unexpired period of lease,whichever is less. As submitted by the learned Special GovernmentPleader, it may not be correct to hold, by technically construing thewordings of the judgment, that the judgment is not a judgment in rem,but the fact remains that persons like the respondent herein, whohave been similarly situated and who were before the Supreme Court, https://hcservices.ecourts.gov.in/hcservices/ were given such benefits.7. In such view of the matter, even if it is taken that thejudgment of the Supreme Court, especially paragraph 36, is not ajudgment in rem, as held by the learned Single Judge, certainly, therespondent herein, who is similarly situated as that of the partiesbefore the Supreme Court, to whom benefits have been given, isentitled to claim such benefits to him. Moreover, by virtue ofthe Constitutional mandate under Article 141 of the Constitution ofIndia, the law declared by the Supreme Court shall be binding on allcourts within the territory of India.8. The judgment relied upon by the learned Special GovernmentPleader in Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju &Others, referred supra, relates to an election dispute, wherein,while declaring the election in respect of a party based on ScheduledTribe character, the Supreme Court has held that such a declarationeffected in E.P.No.13 of 1983 would not amount to a declaration ofstatus of the respondent in the election petition and it cannot besaid that such a finding on status would operate as a judgment in remso as to bind the whole world, in the following operative portion:"No doubt in EP No. 13 of 1983, the question waswhether the election petitioner therein who alleged thatthe appellant before us was not qualified to contest asa candidate belonging to a Scheduled Tribe, in aconstituency reserved for that tribe and to that extent,having relationship to the status of the appellant. Insuch an action under the Representation of the PeopleAct, 1951 what is decided is whether the electionpetitioner had succeeded in establishing that thesuccessful candidate belonged to a caste or community,that was not included in the Scheduled Tribes Order. Ina case where the election petitioner failed to establishhis claim, it could not be said that it amounted to adeclaration of the status of the respondent in thatelection petition, the successful candidate, and thatsuch a finding on status would operate as a judgment inrem so as to bind the whole world. It is also not one ofthe judgments specifically recognised by Section 41 ofthe Evidence Act. It has been held that the challenge toan election is only a statutory right. An electionpetition is not a suit of a general nature or arepresentative action for adjudication of the status ofa person. Even if we take it that the earlier judgmentis admissible in the evidence, on that, no objection wasraised even at the trial, it could be brought in underSection 42 of the Evidence Act on the basis that itrelates to a matter of a public nature or under Section43 of the Evidence Act. In either case, not being inter https://hcservices.ecourts.gov.in/hcservices/ partes, the best status that can be assigned to it is tosay that it is of high evidentiary value, whileconsidering the case of the parties in the presentelection petition."(Emphasis supplied)On the facts and circumstances of the present case, the judgment,referred to by the learned Special Government Pleader has noapplication.9. In any event, as we have stated earlier, inasmuch as therespondent is undoubtedly situated similarly to that of the partiesbefore the Supreme Court, to whom benefits have been given in similarcircumstances, we find no reason to interfere with the impugned orderof the learned Single Judge. In view of the same, this appeal standsdismissed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsasiTo:1. The Secretary to Government State of Tamil Nadu Industries Department Fort St.George, Chennai-9.2. The District Collector Krishnagiri District Krishnagiri.1 CC to the Government Pleader, SR NO.12867W.A.No.1041 of 2008kji(co)pmk.21.4.2009.