High Court · 2006

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 13.11.2006Coram :THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANWrit Petition No.10529 of 2000M/s.Saketh India Ltd., represented by its Executive Director K.S.Rao, Bangalore.Petitionerv.1. State of Tamil Nadu, rep. bySecretary to Government, Industries Department, Fort St. George, Madras 9.2. The District Collector, Vellore District, Vellore. RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia for the issue of writ of declaration declaring that the leaseamount and the security deposit totalling to Rs.44,55,000/- retainedby the first respondent paid for the quarry lands measuring 6.54.0hectares comprised in survey No.1/2 of Thokkiam village, ThirupathurTaluk, Vellore District (formerly North Arcot District) and thedemand for dead rent and area assessment in respect of the said landis illegal and consequently direct the respondents to refund thesaid sum together with interest @ 24% per annum. For Petitioner:Mr.K.Ramakrishna ReddyFor Respondents:Mr.R.Thirugnanam,Special Government PleaderORDERThe writ petitioner has approached this Court by filing thiswrit petition seeking for the relief for issuance of writ ofdeclaration or any other writ to declare that the lease amount andthe security deposit totalling Rs.44,55,000/-, retained by the firstrespondent paid for the quarry lands measuring 6.54.0 hectarescomprised in survey No.1/2 of Thokkiam village, Thirupathur Taluk,Vellore District (formerly North Arcot District) and the demand fordead rent and area assessment in respect of the said land is illegaland consequently direct the respondents to refund the said sum https://hcservices.ecourts.gov.in/hcservices/ together with interest @ 24% per annum. 2. The facts giving raise to the filing of the writ petitionis as follows :The second respondent, as per the then existing Rule 8A of theTamil Nadu Minor Mineral Concession Rules, invited tenders inrespect of several granite quarries situated in the Governmentporomboke lands. As the petitioner is having an existing industry,which is a pre requisite requirement for having a granite quarrylease, it submitted a tender application in respect of the quarryover an extent of 6.54.0 hectares in survey No.1/2 in Thokkiamvillage and has become the highest bidder. The bid was confirmed infavour of the petitioner. Consequently, the petitioner depositedthe entire bid amount of Rs.44,55,000/-, which included 10% of thebid amount, paid at the time of submitting the tender. Necessarylease agreement has been executed on 29.05.1992 for a period of tenyears from 29.05.1992 to 28.05.2002. Immediately after execution ofthe lease deed, the petitioner requested the second respondent tohand-over possession of the lease area so as to enable it to carryon the quarrying operation. But the petitioner came to know thatthe said area is a forest area and belongs to the forest departmentand the process of declaring the said area as reserve forest areawas also going on. 3. According to the petitioner, the respondents invited tenderand granted lease to the petitioner without obtaining necessarypermission from the forest department which is a statutoryrequirement. Inspite of several requests made by the petitioner,the second respondent has not handed over possession of the saidquarry land for a considerable period of time. Hence, thepetitioner, having realised the difficulty of the respondent inhanding over of the leased land for the purpose of quarryinggranite, requested the respondents to refund atleast the amount paidby it, pursuant to the tender. Having received the letter of thepetitioner, the second respondent made a demand for a dead rent andarea assessment on the premise that the petitioner has not carriedon the quarrying operations in the said land. The respondentsneither handed over possession of the said quarry land nor refundedthe tender amount. Apart from the above said amount ofRs.44,55,000/- the petitioner has also spent a sum of Rs.3,17,000/-towards stamp charges and a sum of Rs.40,500/- towards registrationcharges for getting the lease deed registered. 4. It is the basic requirement that before-ever quarry landsare offered for tender for quarrying granite, to have the landssurveyed and find as to whether quarry is viable and the quarry landis a government poromboke land, as there was no provision forprospective mining in the Tamil Nadu Minor Mineral Concession Rules,and the respondents are the authority who are having possession ofthe revenue records to locate the quarry and find out the quarryland is a government poromboke land or the forest land. If the land https://hcservices.ecourts.gov.in/hcservices/ is a forest land, prior permission from the conservator of forestsfor bringing the land for quarrying ought to have been obtained bythe respondents. The respondents, without following any of thestatutory requirements, offered the quarry lands for tender and thepetitioner believing that the action of the respondents would be inconformity with the statutory requirements, participated in thetender and paid the amount. The petitioner has not benefitted inthe quarrying operations as it was not even allowed to enter uponthe quarry, rather it was not been handed over possession of thequarry land. On the above said grounds, the present writ petitionis filed. 5. The District Collector, the second respondent has filed acounter affidavit almost accepting the averments contained in theaffidavit bringing the quarry land for public auction and payment oflease amount as stated by the petitioner. However, it is contendedthat the lessee has accepted the lease deed condition No.5 whichprovides that the lessee should pay seigniorage fee or dead rentwhich ever is more in respect of the actual quantity of the mineralremoved or consumed and besides the above said charges, the lesseeshall also pay the other levies as may be prescribed by the StateGovernment from time to time. The petitioner having kept quite forquite a long number of eight years, almost at the end of the leaseperiod has filed the present writ petition. It is theresponsibility of the tenderer to ascertain the viability of thedeposit available in the area. Before inviting tenders, the landavailability report was called for from the Tahsildar, Thirupathur,who by his report dated 25.06.1990, has reported that the saidquarry land is eligible for auction and the village records revealedthat the subject quarry is classified as "unreserved forest". Itwas further contended that after the execution of the lease deed on29.05.1992 automatically the demised premises comes under thepossession of the lessee and if the petitioner was of the opinionthat the quarry land comes under the reserve forest, the petitionerought to have surrendered the quarry at the initial stage itself,but it failed to do so. On that basis, the respondents sought todismiss the writ petition.6. At the time of admission of the writ petition, interim orderwas granted as prayed for and after hearing the learned counsel oneither side and upon perusing the counter filed by the respondents,this Court made the stay absolute by its order dated 06.11.2000.7. From the above pleadings, the point to be resolved iswhether the petitioner is entitled for the refund of the amount, asclaimed by it.8. There is no dispute that the subject quarry land has beengiven in lease to the petitioner by G.O. Ms.2D No.155 IndustriesDepartment dated 07.06.1991 for a period of ten years from29.05.1992 to 28.05.2002. The lease deed was executed on29.05.1992. However, it is the case of the petitioner that https://hcservices.ecourts.gov.in/hcservices/ possession has not been handed over to him inspite of the grant inhis favour and execution of the sale deed. A specific allegationhas been made in paragraph 5 of the affidavit filed in support ofthe writ petition to the effect that the petitioner had beenrequesting the second respondent to fix the boundary lines and hand-over possession of the leased area. In the counter affidavit filed,it is not specifically stated as to whether the subject land hasbeen demarcated and possession has been handed over to thepetitioner. However, an evasive reply that on execution of the saledeed automatically the demised premise comes under the possession ofthe lessee, has been made. In order to verify the fact whetherpossession has been handed over to the petitioner by demarcating thearea, this Court directed the Special Government Pleader to producethe file before this Court and accordingly the file has beenproduced. On a complete scrutiny of the file, this Court finds thatthere is no material available in the file to prove that possessionhas been handed over to the petitioner. Even the original leasedeed is not available. Only a copy of the lease deed was availablein the file. Thus, it is clear that possession has not been handedover to the petitioner.9. As per 8A(8)(c) of the Tamil Nadu Minor Mineral ConcessionRules, which was then prevailing during the relevant period of time,the lease deed shall be executed within one month from the date ofreceipt of the order of the State Government or within such furtherperiod, not exceeding a period of thirty days, as the DistrictCollector may allow in this behalf. The lease deed executed by theapplicant on the appointed day and time with the map of thedemarcated leased out area signed by the District Collector and thelessee, appended to it. In the file produced before this Court, nosuch map is available. That also fortifies the case of thepetitioner that the area has not been demarcated and handed overpossession to it. Further, it is admitted in the counter affidavitthat the said area has been classified as unreserved forest area.Sub Rule 13 of Rule 8A of the Minor Mineral Concession Rulesprovides that in the case of lease for quarrying of any mineralspecified in clause (a) of sub rule (1) in any forest declared to bereserved under section 16 of the Tamil Nadu Forest Act, 1882 or inany land at the disposal of the Government in respect of which rulesunder section 16 of the said Act have been made, the District ForestOfficer concerned shall exercise the power and discharge the dutiesof the District Collector under this rule. But, in this case, theentire exercise has been done by the District Collector and not bythe District Forest Officer, as provided. As per the provisions ofSection 2 of the Forest (Conservation) Act, 1980, notwithstandinganything contained in any other law for the time being in force, noState Government or the other authority shall make, except with theprior approval of the Central Government, any order directing (ii)that any forest land or any portion thereof may be used for any non-forest purpose, (iii) that any forest land or any portion thereofmay be assigned by way of lease or otherwise to any private personor to authority, Corporation, agency or any other organisation not https://hcservices.ecourts.gov.in/hcservices/ owned, managed or controlled by the Government. "Non forestpurposes" has been explained to mean breaking up or clearing of anyforest land or any portion thereof for (a) the cultivation of tea,coffee, spices, rubber, palms, oil rearing plants, horticulturalcrops or medicinal plaints; (b) any purpose other than reforestationbut does not include any work relating to or ancillary toconservation, development and management of forests and wild life,namely, the establishment of check posts, fire lines, wireless,communications and construction of fencing, bridges and culverts,dams, water holds, trench marks, boundary marks, pipelines or otherlike purposes.10. Thus, the power vested with the State Government under Rule8 of the Tamil Nadu Minor Mineral Concession Rules or any other lawcontaining the similar provision is exercisable subject to the priorapproval of the Central Government. There is absolutely no materialin the file or in the counter affidavit whether the State Governmenthas obtained the prior approval of the Central Government as persection 2 of the Forest (Conservation) Act, 1980.11. Presumably, that might be the reason for the respondentsfor not putting the petitioner on possession in the said area. Itis also accepted by the respondents that the petitioner has not beenin possession of the leased out area and he has not quarried anymaterial from that area. 12. The petitioner has averred in the affidavit that he hasrepeatedly requested the respondents to hand-over possession of thequarry land to enable him to carry on the quarrying operations. Itis normal expectation that the petitioner who has paid a huge sum ofRs.44.55,000/- is anxious to get along with the quarryingoperations, having obtained an order for quarrying granite, butthere is no reason attributed against the petitioner for notcarrying on the quarrying operations. In order to prove thepersistent request made by the petitioner to put him in possession,the petitioner made available before this Court a copy of the letterin SIL/HSR/QY/97-98/551 dated 09.12.1997 wherein the petitionerrequested the respondent to give possession of survey No.1/2,Thokkiam village, Thirupathur Taluk. In that letter, the earlierletter of the petitioner has also been referred to. This fact isnot disputed by the respondents. Hence, the materials madeavailable before this Court categorically prove that the respondentshave not put the petitioner in possession in the subject quarry landas the land is unreserved forest land. As per the provisions ofsection 2(i) of the Forest (Conservation) Act, even the unreservedforest land is also the forest land for which also prior permissionfor any non forest activities is essential.13. Now, in the aforesaid background, if we consider whetherthe petitioner is entitled to get back the amount paid, as thisCourt has come to the conclusion that the petitioner was not put inpossession of the demised property, in view of the fact that the https://hcservices.ecourts.gov.in/hcservices/ respondents have not obtained prior permission of the CentralGovernment to do quarrying operations, the petitioner cannot befaulted for not carrying on the quarrying operations. If at allanybody has to be found fault with, then it is the secondrespondent, who has committed a mistake by bringing the said landfor public auction, without obtaining prior permission from theCentral Government as aforesaid. Even today it is not the case ofthe respondents that necessary permission has been obtained from theCentral Government. The petitioner was not able to do quarryingoperations inspite of the fact that it has become a successfulbidder and paid the entire amount in a sum of Rs.44,55,000/-. Inthe above said factual situation, the petitioner cannot be penalisedfor no fault of it, merely by resorting to the equity clause infavour of the respondent State, particularly, when the petitioner isfound to have not benefitted. Now, the quarrying in the forest areahas become impossible in view of the non obtaining of the priorpermission from the Central Government. Hence, the respondentscannot compel the petitioner to pay for the impossibility. Anuseful reference can be made to the judgment of the Supreme Court inthe case of Mohammed Gazi v. State of Madhya Pradesh, (2000) 4 sCC342 and Rajkumar Dey v. Tarapada Dey, (1987) 4 SCC 398 and GursharanSingh v. New Delhi Municipal Committee, (1996) 2 SCC 459. 14. The respondents have taken yet another point that thepetitioner approached this Court belatedly for the refund. Asalready stated, in the previous paragraphs, in December, 1997, thepetitioner repeatedly requested the respondent with the fond hopethat it will do the quarrying operations to make profit, but havingfailed in all its attempts to take possession of the quarry land, itfinally approached the authorities on 15.06.2000 by writing a letterfor refund of the amount. As the petitioner has not obtained therelief sought for from the respondents, it was compelled to file thepresent writ petition in the year 2000 itself. Even the demand ofdead rent has been stayed by this Court absolutely. The matter hasbeen pending in this Court for more than six years. As alreadystated, the petitioner has complied with all requirements and alsopaid a huge sum of Rs.44,55,000/- and executed a lease deed andthereafter, it is only on the default committed by the respondent,in not putting the petitioner in possession, the petitioner was notcarrying on the quarrying operations. Even today, the respondentsare not coming forward to put the petitioner in possession and thatshows their inability in view of the statutory bar. Apart fromthat, the petitioner being a company, which participated in theauction and paid huge amount as aforesaid, is always ready andwilling to carry on the quarrying operations. Hence, I am of theview that the petitioner is entitled to have the refund ofRs.44,55,000/-. An useful reference can be made to the case ofSalonah Tea Company Ltd. v. The Superintendent of Taxes, Nowgong,AIR 1990 SC 772; Shree Baidyanath Ayurved Bhawan Pvt. Ltd. v. Stateof Bihar, (1996) 6 SCC 86; and Mafatlal Industries Ltd. vs. Union ofIndia, (1997) 5 SCC 536. https://hcservices.ecourts.gov.in/hcservices/

15. As I have come to the conclusion that the quarrying couldnot be carried on by the petitioner only on the default committed bythe respondents, I am of the considered view that the respondentscannot legally claim the dead rent or the area assessment in lieu ofthe seigniorage fee which is leviable on the mineral quarried, whenthe petitioner was not put in possession of the property to carry onthe quarrying operations. 16. Learned Government Pleader relied on a Division Benchjudgment of this Court in N.A.Thangavelu v. The State TransportAppellate Tribunal (2005) 1 MLJ 430 to contend that when theapplication is pending before the Government for repayment of theamount paid to the petitioner, a writ petition cannot be maintained.That was a case in which the appellant was a permit holder inrespect of a stage carriage plying on the road Vellore to SathanurDam via Kannamangalam, Polur, Thiruvannamalai and Thandrampattu forthe portions lying in Thiruvannamalai district since 1972. On12.01.2000 the appellant submitted a joint application along withone M.K. Velu for the transfer of the permit in the name oftransferee, namely, the appellant. Since that application has notbeen disposed off, the writ petition was filed in this Court. Inthat factual situation, the Division Bench held that the High Courtcannot issue permit or licence for the same which is the function ofthe statutory authority. The facts of the said case are not evencomparable to the facts of the present case. Hence, the saidjudgment, by any stretch of imagination, cannot be regarded asadvancing the case of the respondents to non suit the petitioner.Though the petitioner sought for the refund of the amount with 24%interest per annum, having regard to the peculiar facts andcircumstances of the case, I am of the view that a direction can beissued to the respondents to refund the lease amount in a sum ofRs.44,55,000/- alone and the petitioner is not entitled to anyinterest over it since the infraction of the Government as referredto above, is not intentional as the second respondent was of theopinion that unreserved forests can be regarded as a poromboke land,which is manifest from the averment contained in the counteraffidavit. The refund of Rs.44,55,000/- shall be made by therespondents to the petitioner within 12 weeks from the date ofreceipt of a copy of this order. The writ petition is orderedaccordingly. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarmf https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government, Government of Tamil Nadu, Industries Department, Fort St. George, Madras 9.2. The District Collector, Vellore District, Vellore.+1cc to Mr.K.Ramakrishna Reddy, Advocate Sr 54298AVM (CO)km/23.11.W.P. No.10529 of 2000