Judgment · High Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.04.2009CORAMThe Hon'ble Mr. Justice K.MOHAN RAMandThe Hon'ble Mr. Justice M.DURAISWAMYW.A.No.457 of 2008and M.P.No.1 of 2008 The District CollectorThiruvallur District, Thiruvallur... AppellantVs.P.Suresh Babu .. RespondentWrit Appeal filed under Section 15 of the Letters Patent against theorder dated 11.01.2008 made in W.P.No.1088 of 2008.W.P.No.1088 of 2008. filed under Article 226 of the Constitution ofIndia to issue a writ of certiorarified mandamus calling for therecords of the respondent in Rc.No. 541/2006/G & M-1 dated27.11.2007 and quash the same and further direct the respondent toissue dispatch slips for remaining 1927 lorry loads of savudu to thepetitioner to quarry and transport the same in P.W.D. lake comprisedin S.No. 311 of Pandeswaram Village, Ambattur Taluk, ThiruvallurDistrict .For appellant..Mr.A.Arumugam, Spl.G.P.For respondent..No appearanceJ U D G M E N T(Judgment of the Court was delivered by K.MOHAN RAM, J.)The above writ appeal is directed against the order of thelearned single Judge dated 11.1.2008 passed in W.P.No.1088 Of 2008.The respondent in the Writ Petition is the appellant in the abovewrit appeal. 2.It is seen that the respondent herein was grantedpermission to quarry 3000 lorry loads of sand and he claims to havepaid the entire fee of Rs.2,40,000/- towards 3000 lorry loads. According to the respondent, during the period of one month for https://hcservices.ecourts.gov.in/hcservices/ which permission was granted, the petitioner could quarry only 700lorry loads. Hence, he sent a representation dated 25.5.2007 andon inspection by the Revenue Divisional Officer, it was found thatthe respondent had quarried 1073 lorry loads from the tank and theremaining lorry loads to quarry is 1927. The authorities hadconsidered the request of the respondent and granted permission toquarry the remaining quantity. But the respondent had not utilisedthat opportunity, but again he sought for extension of time, whichcame to be rejected and being aggrieved by that the Writ Petitionwas filed.3.The learned Single Judge basing reliance on the orderspassed in W.P.Nos.34268 and 11538 of 2007, directed the appellantherein to extend the time for quarrying as per the permissiongranted in favour of the respondent/writ petitioner originally andthe time limit was also fixed. Being aggrieved by that, theappellant herein has filed the above writ appeal.4.When the above appeal was taken up for hearing, though thename of the respondent/writ petitioner is shown in the cause list, he is neither appearing in person nor representing through anycounsel. Hence, the Appeal is taken up for disposal on merits.5.Mr.A.Arumugam, learned Special Government Pleader, submitted that in W.P.No.34268 of 2007, no positive direction wasissued and the learned Single Judge has mistakenly placed relianceon the same. In fact a perusal of the order passed in W.P.No.34268of 2007 shows that the said writ petition was filed by the very samepetitioner seeking for a direction to consider his representationand the same was allowed by directing the authorities concerned todispose of his representation; only thereafter the present impugnedorder was passed which was challenged before the learned SingleJudge. As far as the order passed in W.P.No.11538 of 2007, the sameis not made available.6.The learned Special Government Pleader submitted that theimpugned proceedings being one passed under Rule 12 of the TamilNadu Minor Mineral Concession Rules, 1959, (hereinafter called as'the Rules') which is appelable as per the provisions under Rule 36C (2) of the Rules.7.Rule 36-C (2) of the Tamil Nadu Minor Mineral ConcessionRules, 1959, reads as under:"Rule 36-C (2) APPEAL AND SECOND APPEAL(1)......... https://hcservices.ecourts.gov.in/hcservices/ (2)Any person aggrieved by any order made by theDistrict Collector in exercise of the powers conferredon him by the date rules, except on appeals under sub-rule (1)may, within 30 days from the date ofcommunication of the order to him, appeal to theDirector of Geology and Mining against such order. Incase, the aggrieved person is not satisfied with thedecision of the Director of Geology and Mining, he mayprefer a second appeal to the State Government within 30days from the date of receipt of the order of theDirector of Geology and Mining."8.The learned Special Government Pleader relying upon Rule36 C (2) of the Rules, submitted that if a statutory remedy ofappeal is available, the respondent/ writ petitioner could not bepermitted to move this Court without exhausting such an alternativeand effective remedy. The learned Special Government Pleaderfurther submitted that it is also not the case of the writpetitioner that the remedy by way of appeal is not an effectiveremedy.9.We have considered the said submissions made by thelearned Special Government Pleader.10.In our considered view, the submissions of the learnedSpecial Government Pleader merit acceptance. The settled propositionof law is that when an effective and alternative remedy is providedunder the Rules, the respondent ought to have exhausted such aremedy and without exhausting such remedy, it is not open for him tostraight-away approach this Court under Article 226 of theConstitution of India. As rightly contended by the learned SpecialGovernment Pleader, it is not the case of the respondent/writpetitioner before the learned Single Judge that the remedy providedunder Rule 36 C of the Rules, is not effective or efficacious. Insuch circumstances, in our considered view, the Writ Petition oughtnot to have been entertained.11.Further, on merits also, the respondent/writ petitioner isnot entitled for extension of time sought for. Admittedly, afterthe original period expired, one extension was granted for quarryingthe remaining quantity, but the respondent/writ petitioner had notavailed that opportunity also. The respondent/writ petitioner cannotbe again and again permitted to seek extension of time. Therefore, we are unable to agree with the reasoning of the learned SingleJudge. https://hcservices.ecourts.gov.in/hcservices/

#12. Accordingly, the order dated 11.01.2008 made inW.P.No.1088 of 2008 is set aside and the Writ Appeal is allowed. However, there will be no order as to costs. Consequently, connected Miscellaneous Petition is closed. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarrpaToThe District CollectorThiruvallur District, Thiruvallur.1 cc to Government Pleader, SR. 19136W.A.No.457 of 2008 and M.P.No.1 of 2008SRS (CO)kk 14/5