The State of Tamil Nadu v. C. Velayutham

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:06.04.2009CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIANDTHE HON'BLE MRS.JUSTICE ARUNA JAGADEESANWRIT APPEAL NO.132 of 2008and M.P.No.1 of 20081. 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/Respondentsvs.C. Velayutham.. Respondent/PetitionerWrit Appeal is filed against the order of the learned singleJudge made in W.P.No.5253 of 1998 dated 02.01.2007 presented to thisCourt under Article 226 of the Constitution of India to issue a Writof Certiorarified Mandamus direction in the nature of Writ callingfor records of the 1st respondent relating to the letterNO.32162/MMC-2/97-4, dated 03.03.1998 and consequently direct therespondents to refix the lease amount of Rs.7 lakhs for the 1st yearlease amount and refund the excess amount paid by the petitioner andgrant the area as notified without any reduction in respect of quarrybetween miles 13/0 to 15/2 miles in Karaikadu to ThailampalayamVillage falling in S.F.No.354 and 360 of Revenue Villages of Arasalurand Thailampalayam respectively on the left bank of Cauvery river inMusiri Taluk, Tiruchirappalli District.For appellants: Mr.R.Thirugnanam Spl.Govt.PleaderFor respondent : Mr.AR.L.Sundaresan,Sr.Counsel for Mr.V.Sanjeevi https://hcservices.ecourts.gov.in/hcservices/ JUDGEMENTP.JYOTHIMANI,J.The respondents in the writ petition have filed the presentappeal against the order in W.P.No.5253 of 1998 dated 2.1.2007, bywhich the learned Judge has allowed the writ petition based on thedecision of the Supreme Court reported in State of Tamil Nadu v.P.Krishnamoorthy [(2006) 4 SCC 517], directing that the respondentherein, viz., the writ petitioner, would be entitled to quarry forthe period of 6 months in respect of the area given in lease in theproceedings of the District Collector dated 20.3.2001.2. The second appellant, District Collector has notified callingfor applications for sand quarry on the left bank of Cauvery riverfrom miles 13/0 to 15/2 in between Karakkadu and Thailampalayamvillages in Musiri taluk, in District Gazette notification dated17.3.1993, for a period of three years under Rule 8(1) of the TamilNadu Minor Mineral Concession Rules, 1959. The total extent isstated to be 227.0 hectares. The respondent herein is stated to bethe highest bidder and in spite of it, the second appellant rejectedthe respondent's application by order dated 7.4.1994 on the basisthat the respondent is an affluent person. Against that order, therespondent/writ petitioner has filed an appeal before the Director ofGeology and Mining, who dismissed the appeal on 6.10.1994. It was,thereafter, the respondent filed W.P.No.19645 of 1994 in which therewas an order of interim injunction restraining the appellants fromleasing out the quarry pending the said writ petition. 3. It appears that the respondent had made severalrepresentations to the second appellant which were not considered andthe respondent also filed W.P.No.15111 of 1996 for Mandamus todispose of the said representation and the writ petition was disposedof on 28.10.1996 directing the second appellant to dispose of therepresentation of the respondent. It is stated that the secondappellant, while considering the representation, has insisted therespondent to withdraw the earlier writ petition and it was, in thosecircumstances, the earlier writ petition came to be withdrawn. Byorder dated 6.2.1997 the second appellant, District Collector hasgranted lease for a period of three years by raising the amount toRs.27 lakhs and restricting the area to 10 hectares out of 227hectares. The respondent appears to have made a representation tothe Government stating that originally he quoted Rs.7 lakhs which wasarbitrarily increased by the second appellant to Rs.27 lakhs and thesaid plea came to be rejected by the Government on 3.3.2008. Itwas, as against the said order of rejection, the present writpetition came to be filed. https://hcservices.ecourts.gov.in/hcservices/

4. While admitting the writ petition, there was an interim orderof injunction restraining the appellants from leasing out theremaining area which order came to be extended subsequently. Pendingthe writ petition, the respondent herein has filed WP.M.P.No.30491 of2000 praying for permission to quarry the sand from the notified areaviz., from miles 13/0 to 15/2 between Karaikkadu and Thailampalayamvillages on the left bank of Cauvery river in Musiri taluk excluding10 hectares for which lease was already granted. By order dated19.12.2000, a learned single Judge of this Court directed theappellants to allow the respondent herein to quarry the area notifiedin the gazette notification dated 17.3.1993 less the area alreadygranted 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 thepetitioner to quarry the area notified in the GazetteNotification dated 7.3.1993 less the area already granted onlease on 6.4.1997 by enhancing the lease amount by 20% overand above the lease amount fixed in the order dated 6.2.1997." 5. The present appellants, on the impression that the leaseamount in respect of larger extent viz., 217 acres should beproportionately increased, filed clarification petitions inWP.M.P.Nos.16925 and 10752 of 2001 to clarify the earlier order dated19.12.2000 passed in WP.M.P.No.30491 of 2000. The learned Judge haspassed the order on the said clarification petitions on 18.7.2001.6. When the writ petition was pending, by virtue of issuance ofG.O.Ms.No.95,Industries (MMC.1) dated 1.10.2003, the Government tookover all sand quarrying rights by itself. The said G.O. waschallenged by way of filing writ petition and the Government Orderwas ultimately upheld by the Supreme Court on appeal filed by theGovernment in State of Tamil Nadu v. P.Krishnamoorthy [(2006) 4 SCC517]. While construing Rule 38A which was incorporated with effectfrom 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 termsof the contract (lease deeds) by six months, without assigningcause and without any liability to pay compensation. Such ofthose writ petitioners (the respondents herein) whose leaseswere subsisting on 2.10.2003 (and whose activities werestopped with effect from that day) will be entitled to carryon the quarrying activities for a period of six months or forthe actual unexpired period of the lease (as on 2.10.2003),whichever is less. This benefit will be available to even https://hcservices.ecourts.gov.in/hcservices/ those who have orders of the court for grant of mining leases,but where mining leases were not executed for one reason orthe other. It is, however, made clear that the StateGovernment is at liberty to prematurely terminate the leasesfor any of the causes mentioned in section 4A(2), by giving anotice and hearing under section 4A(3), if they want toterminate any lease within the said period of six months."In the said operative portion, the Supreme Court has held that inrespect of cases where leases was subsisting as on 2.10.2003, suchlessees would be entitled to quarrying activities for a period ofsix months or for the actual unexpired period of the lease whicheveris less. It is also stated that the said benefit would be availableeven to those who were not granted lease, but were doing miningoperations by orders of the Court. 7. While hearing the writ petition, the learned Judge, by takingnote of the earlier order of clarification dated 19.12.2000, foundthat pursuant to the earlier order dated 19.12.2000, the secondappellant, the District Collector, in his proceedings dated20.3.2001, granted lease for a period of three years, however thelease deed was not executed. The fact remains that the respondentwas not allowed to quarry. It was, in those circumstances, the aboveG.O. has come into existence. The learned Judge, taking note ofparagraph 36 of the Supreme Court judgment, has permitted therespondent to quarry for a period of six months. It was, against thesaid order, the appellants have filed the present appeal.8. The order of the learned Judge is assailed on the ground thatas per the judgment of the Supreme Court, especially with referenceto paragraph 36, the benefits were given only to the parties beforethe Supreme Court and even though the respondent may be a similarlysituated person, the respondent is not entitled for the benefit. Itis the further case of the appellants, as submitted by the learnedSpecial Government Pleader, that even after the clarifications weremade, the respondent has not paid the lease charges which should beproportionate to the amount of lease which was earlier prescribed for10 hectares of land. According to the learned Special GovernmentPleader, the payment made by the respondent to the extent ofRs.32,40,000/- stated to be the lease amount with 20% increase canonly be construed to be the amount paid in respect of 10 hectares ofland and therefore, the same cannot be taken as being in conformitywith the order of clarification passed by this Court. According tothe learned Special Government Pleader, the respondent is notentitled for the benefit of the Supreme Court even otherwise. 9. His further contention is based on Rule 8(6)(e) of the TamilNadu Minor Mineral Concession Rules, 1959, which contemplates thatthe lease deed shall be executed by the applicant on the appointed https://hcservices.ecourts.gov.in/hcservices/ day and the respondent has never come forward to execute the leasedeed and therefore, it cannot be said that the respondent is havingany right. The learned Special Government Pleader would also relyupon Rule 8(7) which empowers the District Collector to cancel thelease in case of any violation on the part of the applicant.10. On the other hand, Mr.AR.L.Sundaresan, learned seniorcounsel appearing for the respondent/writ petitioner would submitthat admittedly, out of 227 hectares of land, 10 hectares of land wasgranted on lease for a period of three years and on the third yearthe amount of lease was Rs.38,88,000/-. His submission is that aninterim order was passed by this Court by which there was a directionto permit the respondent to quarry the remaining extent of land,viz., 217 hectares, on the payment of the above Rs.38,88,000/- with afurther increase of the amount by 20%. In fact, the Government wason the assumption that the said order was not proper, and hence, itfiled petition for clarification, in which the learned Judge hasclearly held that the said amount of Rs.38,88,000/- denotes the leasecharges for the remaining 217 hectares. He also submits that in themeantime, the respondent has chosen to restrict the extent of land to25 hectares and in the clarification it is stated that the amount ofRs.38,88,000/- with additional increase by 20% should be taken asthe amount in respect of the restricted 25 hectares and therefore, inview of the order of clarification which has become final, it is notopen to the appellants to construe the same to their convenience. Itis also his submission that the judgment of the Supreme Court inparagraph 36, as stated supra, is applicable to the case ofrespondent since he is similarly situated as that of the respondentsbefore the Supreme Court wherein specific direction has been givenpermitting those persons who are either having subsisting lease oroperating the quarry as on 2.10.2003, are to continue the same for aperiod of six months or till the period of lease whichever is less.He further submits that even by applying Article 141 of theConstitution of India, the respondent is entitled to the benefit ofthe above judgment of the Supreme Court.11. We have heard the learned Special Government Pleader for theappellants and the learned senior counsel for the respondent andperused 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 ismade clear from the order of the District Collector dated 20.3.2001.In the said order, the District Collector, while narrating that basedon the earlier notification of the year 1993, the petitioner wasgranted lease for 10.00.0 hectares out of total extent of 227hectares on yearly lease, stated that for the first year, the leasecharge should be Rs.27 lakhs, for the second year it should beRs.32,40,000/- and for the third year, with the further increase of https://hcservices.ecourts.gov.in/hcservices/ 20%, the lease charge should be Rs.38,88,000/-. In fact, the orderstates that the respondent has paid the entire amount ofRs.98,28,000/- for the whole period of quarrying viz., from 14.2.1997to 13.2.2000. It was, after completion of the said period, therespondent filed this writ petition, viz., W.P.No.5253 of 1998 andpending the writ petition, in WP.M.P.No.30491 of 2000 this Courtdirected that the entire remaining extent of land should be permittedby the appellants herein to quarry in favour of the respondentherein. While passing the interim order, by elaborately discussingvarious points raised by both the parties, the learned Judge haspassed the following order:"8. Hence, the second respondent is directed to allow thepetitioner to quarry the area notified in the Gazettenotification dated 7.3.1993 less the area already granted onlease on 6.2.1997 by enhancing the lease amount by 20% overand above the lease amount fixed in the order dated 6.2.1997.The petitioner is also liable to pay other legal dues whichthe lessee is liable to pay under the provisions of the Act."directing the second respondent therein viz., the District Collectorto permit the respondent herein to quarry the area notified as perthe Gazette notification dated 7.3.1993 less the area already grantedon lease on 6.2.1997 by enhancing 20% over and above the lease amountfixed by order dated 6.2.1997.13. By the above said order dated 6.2.1997, the DistrictCollector, as stated above, has permitted the respondent to quarry 10hectares of land out of total extent of 227 hectares. A reading ofthe order dated 20.3.2001 passed by the District Collector makes itvery clear that the District Collector has understood the order ofthis Court passed in WP.M.P.No.30491 of 2000 dated 19.12.2000 thatthe direction was to permit the respondent herein to quarry theremaining extent viz., 217 hectares for an increased lease amount by20% over and above the amount prescribed by the District Collector inthe order dated 6.2.1997. However, the District Collector, havingfound that the extent being more than 10 hectares, he has nojurisdiction, referred the matter to the Government. Afterpermission was granted by the Government, the District Collector haspassed the order dated 20.3.2001 permitting the respondent to quarrythe remaining extent of 217 hectares for a period of three years forthe increased lease amount by 20%. In the said order it is madeclear by the District Collector that if the amount is not paid, thelease will be cancelled. Along with the letter dated 28.3.2001 therespondent has enclosed challan for payment of the amount ofRs.32,40,000/- stated to be the lease amount with 20% increase. Hehas also enclosed challan for payment of other seigniorage, areaassessment charges, etc. https://hcservices.ecourts.gov.in/hcservices/

14. It is true that the amount of Rs.32,40,000/- which therespondent was asked to pay does not actually denote the amount asdirected by this Court as stated above in the interim order. Underthe earlier lease for three years, the lease amount for the thirdyear payable by the respondent would be Rs.38,88,000/- andtherefore, the respondent should have paid the said amount with anaddition of 20% increase which would come to Rs.45,65,600/- andinstead of paying the said amount, by mistake, the respondent haspaid Rs.32,40,000/-. However, the fact remains that the DistrictCollector, the second appellant, has not chosen to refuse to receivethe said amount or cancelled the earlier order dated 20.3.2001 on thebasis that the terms of the order have not been complied with by therespondent. 15. In the clarification petitions filed by the appellants inWP.M.P.Nos.16925 and 10752 of 2001 in W.P.No.5253 of 1998, thelearned Judge, by order dated 18.7.2001, again after elaboratelydiscussing the earlier orders, has held that the earlier order isunambiguous, and ultimately disposed of the petitions in thefollowing words:"6. The earlier order is unambiguous. The respondentsare directed to permit the petitioner to quarry the entirearea as published in Gazette dated 17.3.93 minus what has beengrated to him in the earlier instance, on the petitionermaking 20% over and above what he has paid for the earlierthree years as lease amount. Now the petitioner himself filedan application restricting the area to 25 hectares. The areacan very well be restricted to 25 hectares but the leaseamount cannot be restricted. The respondents are directed todemarcate the 25 hectares specifically after issuing priornotice to the petitioner. The lease amount directed to bepaid by the petitioner for the area would be 20% over andabove the lease amount paid for last of the three years forwhich 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 followingtwo years.7. The petitioner has to make not only the 20% enhancedlease amount but also the seigniorage fee and other legal dueswhich are leviable by the Government from time to time. Anyamount paid pursuant to the order of this Court dated19.12.2000, has to be given credit to the amount directed tobe paid by the petitioner by this order. The respondent, theDistrict Collector is directed to execute the lease deedwithout any further delay. https://hcservices.ecourts.gov.in/hcservices/

16. A reading of the said order on clarification petitionsmakes it clear that though the respondent has restricted his claim ofarea to 25 hectares, the lease amount cannot be restricted. Thelearned Judge has further made it abundantly clear that the 20% overand 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 thatthe amount of Rs.38,88,000/- with an addition of 20% cannot be takenas the amount for the land to the extent of 25 hectares. The saidorder of the learned Judge has become final in respect of theclarification sought for by the appellants themselves. Thereafter,the learned Judge, while disposing of the writ petition, has made itclear that the respondent is entitled for permission to quarry for aperiod of six months on the enhanced amount. In such view of thematter, it is certainly not open to the appellants now to say thatthe amount of lease should be much more and it should beproportionate to the amount fixed for the earlier 10 hectares ofland. 17. It is also not open to the appellants now to state that therespondent was not ready in executing the lease deed, inasmuch as hedid not pay the amount as per the calculation of the Government andtherefore, by applying Rule 8(6)(e), the respondent is not entitledfor the benefit. Rule 8(6)(e) of the Tamil Nadu Minor MineralConcession Rules, 1959 reads as follows:"A lease deed shall be executed by the applicant on theappointed day and time with a map of the demarcated leased outarea appended to it."Even by applying the said rule, it is not the case of secondappellant viz., the District Collector that he has asked therespondent to execute lease deed with an appointed day. As far asthe power of the District Collector under Rule 8(7) which is asfollows:"8(7). Whether the District Collector has granted aquarrying lease to an applicant, if the applicant fails toproduce the original challan for remittance of the amountsspecified in the lease granting order or fails to produce thesigned copy of the demarcated map of the area or fails toproduce the required stamp papers for preparing the lease deedor fails to execute the lease deed within the stipulated time,the District Collector may cancel the order granting the leaseto the defaulter and forfeit the earnest money deposit and allamounts paid by him to the State Government. In the case of https://hcservices.ecourts.gov.in/hcservices/ an area for which there are two or more applicants, aftercancellation of an order granting the quarrying lease to thedefaulter, the District Collector may grant the quarryinglease [in favour of next below highest bidder or tenderer,subject to the provisions of sub rule 6(b)]. If the nexthighest bidder or tenderer is not communicating his acceptanceof such offer of the District Collector within 10 days fromthe date of receipt of the District Collector's offer, theDistrict Collector shall issue fresh notification in theDistrict Gazette calling for re-tender applications for thearea concerned."the District Collector is certainly entitled to cancel the ordergranting quarry lease to a defaulter. Even assuming in the presentcase that the respondent has committed default in payment as per thecalculation of the appellants, the District Collector has neverinvoked his powers under Rule 8(7) of the the Tamil Nadu MinorMineral Concession Rules, 1959 to cancel the lease granted in favourof the respondent on the ground that the respondent has committeddefault. In such view of the matter, it is not possible to acceptthe contention of the learned Special Government Pleader that theorder of the learned Judge is liable to be set aside. 18. One other contention raised by the learned SpecialGovernment Pleader that the benefit granted in the judgment of theSupreme Court in State of Tamil Nadu v. P.Krishnamoorthy [(2006) 4SCC 517], especially in paragraph 36, would only go to therespondents before the Supreme Court and that cannot be automaticallyextended to the respondent herein is also not sustainable. It may betrue that the benefit was given by the Hon'ble Supreme Court to therespondents therein whose lease was subsisting as on 2.10.2003. But,it is not the case of the appellants that the case of the respondentherein is not similarly placed as that the case of the respondentsbefore the Supreme Court. Even by applying the principles enunciatedunder Article 141 of the Constitution of India, the judgment of theSupreme Court in (2006) 4 SCC 517 would apply to the similarlysituated circumstances and therefore, by no stretch of imagination itcan be held that the respondent herein is not entitled for thebenefit of the judgment of the Supreme in (2006) 4 SCC 517. In suchview of the matter, there is absolutely no reason to interfere withthe order of the learned Judge. https://hcservices.ecourts.gov.in/hcservices/ In the light of what is stated above, the writ appeal fails andthe same is dismissed. No costs. Connected miscellaneous petitionis closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkhTo1. The Commissioner and Secretary to Government Industries Department Fort St.George, Chennai 9.2. The District Collector Tiruchi District Tiruchi.1 cc To The Government Pleader, SR.12853.1 cc To Mr.V.Sanjeevi, Advocate, SR.12526. WRIT APPEAL NO.132 of 2008RSY(CO)RVL 20.04.2009