Mr.M.Azhagaiya v. The State of Tamil Nadu

For Petitioner in WP 29185 of 2008& : Ms.ArunaFor Petitioner in WP551 : Mr.V.T.Gopalan, of 2009 Senior Counsel for Mr.M.Ravikumar (WP.29185/08) & Mr.R.Ramanlaal.(WP.551/09)For Respondents in both WPs : Mr.P.S.Raman, Addl. Advocate General Assisted by Ms.D.Geetha, Addl. Government Pleader.For Impleading Petitioner in M.P.3 of 2009 in W.P.551 of 2009 : Mr.P.V.S.Giridhar COMMON ORDERBy a notification published in the District Gazette, dated19.12.2002, the District Collector, Kancheepuram, invitedapplications for the grant of lease to quarry stones, throughtender/auction in the lands comprised in various Survey Numbers inseveral villages of Kancheepuram District. The notification containedthree schedules, with (i) Schedule-A comprising of quarries in fourdifferent villages in Tambaram and Chinglepet Taluk, which weredescribed to be old stone quarries, (ii) Schedule-B comprising ofquarries in nine villages in Chinglepet, Uthiramerur, Maduranthakamand Cheyyur Taluks, which were described to be new stone quarries and(iii) Schedule-C comprising of quarries in Chinglepet, Maduranthakamand Sriperumbudur Taluks, described as Gravel Quarries. 2. One Mr.K.Kathir Kamaraj, the petitioner in W.P.No.551 of2009 applied for the quarry at Serial No.4 under Schedule-A to thenotification, in respect of Quarry No.4 in Survey No.25/2B,Tirusoolam Village, of the extent of 1.32.0 hectares, described asHill Poromboke. In the tender-cum-auction held on 8.1.2003, his offerwas found to be the highest and accepted. Therefore he paid thesecurity deposit of Rs.5 lakhs and also paid the lease amounts interms of Rule 8(6)(c) of The Tamil Nadu Minor Mineral ConcessionRules, 1959. 3. A deed of lease in the prescribed format (Appendix-I) wasexecuted by the District Collector in favour of the said K.KathirKamaraj on 16.9.2003, granting lease of quarrying rights in respectof the aforesaid quarry for a period of 5 years and the lease deedwas also registered in the Office of the Sub Registrar, Tambaram. Theperiod of lease was to expire on 15.9.2008. 4. Towards the end of the period of lease, the Lessee K.KathirKamaraj, made a request to the District Collector on 15.5.2008,seeking extension of the lease for a further period of 5 years on theground that the quarry granted to him on lease was a virgin quarryand that therefore by virtue of Rule 8(8) of The Tamil Nadu MinorMineral Concession Rules, the lease ought to have been for a periodof 10 years in the case of virgin quarries. After more than twomonths of making the said representation, the petitioner filed a writpetition in W.P.No.22068 of 2008, claiming that the application for https://hcservices.ecourts.gov.in/hcservices/ renewal is pending and seeking a Writ of Mandamus to forbear therespondent from interfering with his right to continue quarryingoperations till the expiry of another 5 years from the date of expiryof the original lease. Pending disposal of the writ petition, aninterim order of injunction was granted in favour of K.KathirKamaraj, in M.P.No.1 of 2008 on 8.9.2008. 5. But by the time the interim order was granted in the saidwrit petition, the District Collector had already passed an orderdated 2.9.2008, rejecting the request for extension of the period oflease on the ground that the quarry in question was not a virginquarry. Therefore, challenging the order of rejection dated 2.9.2008,the Lessee K.Kathir Kamaraj has come up with the writ petitionW.P.No.551 of 2009, praying for a Writ of Certiorarified Mandamus, toquash the order of rejection dated 2.9.2008 and to direct therespondent to permit the petitioner to continue the quarryingoperations for a further period of 5 years in terms of Rule 8(8) ofThe Tamil Nadu Minor Mineral Concession Rules, 1959. 6. In view of the order of rejection dated 2.9.2008, the firstwrit petition filed by the petitioner W.P.No.22068 of 2008 wasdismissed and the interim order granted therein also perished alongwith the said order. Therefore the Lessee K.Kathir Kamaraj filedalong with the main writ petition W.P.No.551 of 2009, twomiscellaneous petitions in M.P.Nos.1 and 2 of 2009, seeking (i) aninterim stay of the order of rejection and (ii) an interim injunctionrestraining the respondent from interfering with his rights tocontinue to quarry.7. On 12.1.2009, when W.P.No.551 of 2009 came up for admissionalong with the two miscellaneous petitions, the learned AdditionalGovernment Pleader took notice and requested time to getinstructions. Therefore the writ petition was adjourned withoutgranting any interim order. Subsequently, the respondent filed acounter affidavit and the writ petition itself was requested to betaken up for disposal.8. In the meantime, it was brought to my notice that aresident of the locality where the quarry is situate, had also fileda writ petition in W.P.No.29185 of 2008, seeking the issue of a Writof Mandamus, to direct the respondents to consider his representationdated 6.12.2008 for the conduct of an auction in respect of the verysame quarry, which is the subject matter of the other writ petition.Therefore this writ petition W.P.No.29185 of 2008 was also directedto be tagged along with W.P.No.551 of 2009. 9. Meanwhile, an elected member of the local body (TirusoolamPanchayat) filed a miscellaneous petition in M.P.No.3 of 2009,seeking to implead himself as a party to the writ petition W.P.No.551of 2009, for the purpose of opposing the prayer of the LesseeK.Kathir Kamaraj for extension of the period of lease. Therefore thismiscellaneous petition was also taken up. https://hcservices.ecourts.gov.in/hcservices/

10. I have heard Mr.V.T.Gopalan, learned Senior Counselappearing for the Lessee, who is the petitioner in W.P.No.551 of2009, Mr.P.S.Raman, learned Additional Advocate General for theofficial respondent, Mr.P.V.S.Giridhar, learned counsel appearing forthe person seeking to implead himself (petitioner in M.P.No.3 of 2009in W.P.No.551 of 2009) and Ms.Aruna, learned counsel for thepetitioner in W.P.No. 29185 of 2008.11. Since the prayer made in W.P.No.29185 of 2008 depends uponthe outcome of the other writ petition, viz., W.P.No.551 of 2009, letme take it up first.W.P.No.551 of 2009:12. The main grievance of the petitioner in W.P.No.551 of 2009is that the quarry in question is a virgin quarry and that thereforein terms of Rule 8(8) of The Tamil Nadu Minor Mineral ConcessionRules, 1959, the period of lease ought to be 10 years. According tothe petitioner, though the notification for the grant of quarryinglease described the quarry in question as an old quarry, it was notcovered by any prior lease. The petitioner claims that he came toknow of its virginity, only after he started operating the quarry andthat immediately he made a representation dated 15.3.2004, seekingextension of the lease. 13. In support of the above contentions, Mr.V.T.Gopalan,learned Senior Counsel appearing for the petitioner, placed strongreliance upon the judgment of the Division Bench of this Court inA.Srinivasan vs. District Collector {2008 (3) CTC 800} and anunreported decision dated 18.9.2008, passed in W.P.(MD) No.6140 of2008 by K.Suguna, J. 14. Sub Rule (8) of Rule 8 of The Tamil Nadu Minor MineralConcession Rules, 1959, as amended by G.O.Ms.No.391, Industries (MMC-I) Department, dated 17.11.2000, reads as follows:-"(8) The period of lease for quarrying stonein respect of the virgin areas, which have not beensubjected to quarrying so far, shall be ten years.The period of lease for quarrying stone in respect ofother areas shall be five years. The period of leasefor quarrying sand and other minor minerals, otherthan the minerals covered under Rules 8-A and 8-C ofthe said Rules, shall not exceed three years andshall not be less than one year and shall be subjectto the following conditions, namely:(i) The date of commencement of the period oflease granted under this Rule shall be the date onwhich the lease deed is executed.(ii) The lease shall expire on the date specified inthe lease deed and in no case extension of the periodof lease shall be made." https://hcservices.ecourts.gov.in/hcservices/

15. Prior to the above amendment, the District Collector wasempowered to grant lease for quarrying stones, only for a period of 5years. The Amendment to Sub Rule (8) was introduced in the year 2000and hence a question arose as to whether persons who were grantedleases for 5 years before the amendment, were entitled to take thebenefit of the amendment. The issue went before the Division Bench ofthis Court in A.Srinivasan's case. 16. Construing the words "which have not been subjected toquarrying so far", appearing in the amended Rule 8(8), the DivisionBench held in paragraph-13 of its judgment as follows:-"A lease is known to be virgin by the factwhether it was virgin at the time when it wasgranted for quarrying. So long as the lease periodis in force, the area would be only known to bevirgin till such time the lease is over. The words"which have not been subjected to quarrying so far"in the amended Rule shall relate only to date onwhich the lease was granted and not subsequently.The intention of the legislature is clear ingranting ten years for virgin quarries and only forfive years in respect of other quarries. Thedecision to grant ten years is with reference tovirgin quarries. We do find any intention of thelegislature to restrict the period to existingvirgin quarries and in fact by that rule, there isno such restriction. This would be the correctinterpretation as the Government had duly taken intoconsideration of the representations of the lesseeswho could not exploit the mineral for the entirefull period of five years. As the area being virgin,they had to develop the area before commencement ofthe quarrying operation and in that process, theywould lose a substantial portion of the leaseperiod. Keeping the above grievance of the lesseesonly, the Government had extended the period oflease to ten years in respect of virgin areas.Hence, the lessees are entitled to the lease for aperiod of ten years provided the areas that wereleased to them were virgin and there were no priorleases granted and the said quarries were not putinto operation earlier."17. After holding that the amendment to Rule 8(8) would haveretrospective operation so as to confer a benefit upon the existingholders of leasehold rights, the Division Bench also took up the caseof those whose leases came into existence after the amendment wasintroduced. In so far as their cases are concerned, the DivisionBench held in paragraph-17 that the terms of the contract should bein accordance with statutory rules and that when the Rule prescribesa period of 10 years in respect of virgin quarries, it cannot beabridged to 5 years by contract. https://hcservices.ecourts.gov.in/hcservices/

18. In M.Joseph Rathinasamy vs. The District Collector,Madurai {WP(MD) No.6140 of 2008, dated 18.9.2008}, the petitioner wasgranted a lease quarry stones in S.F.No.83, Part-8 in KodayampattiVillage, Vadipatti Taluk, Madurai District. On the ground thatvarious portions of S.F.No.83 had already been leased out forquarrying operations and that therefore the quarry leased out to thepetitioner cannot be construed as a virgin quarry, his applicationfor extension was rejected. But the learned Judge held that thoughthe other parts of the same survey number S.F.No.83 had been leasedout earlier, Part-8 of S.F.No.83 had not been leased out earlier andthat therefore Part-8 of S.F.No.83 was only a virgin quarry. Whileholding so, the learned Judge observed as follows:-"As per Rule 8(8) of the Tamil Nadu MinorMineral Concession Rules, 1959, the period of leasefor quarrying stone in respect of the virgin areas,which have not been subjected to quarrying so far,shall be ten years. So even as per the Rule 8(8) ofthe Tamil Nadu Minor Mineral Concession Rules, 1959,is concerned, the virginity has to be decided onlyin respect of area only which has been leased outand not with reference to S.F. Number. Consequently,the arguments of the learned Government Advocatethat if the portion of the area in S.F. Number isleased out, the area comprised in the entire S.F.Number has to be treated as non virgin area will nothold good."19. Therefore based upon the above two judgments, it wasvehemently contended on behalf of the petitioner in W.P.No.551 of2009 that the petitioner was entitled to extension of the period oflease by 5 years so as to make the lease in tune with Rule 8(8). Tosubstantiate the contention that the quarry in question viz., QuarryNo.4 in Survey No.25/2B of Tirusoolam Village, was not the subjectmatter of any prior lease and that quarrying operations started forthe first time thereon, the learned Senior Counsel for the petitioneralso invited my attention to the following:-(a) Under Clause 6(3) of the lease deed dated 16.9.2003, theLessee is obliged to remove the surface soil, before digging andopening any part of the demised pieces of land, so that the land canbe restored, after the period of lease, to be fit for cultivation.Under Clause 6(7), the Lessee is obliged to keep correct accounts,showing the quantity and other particulars of the mineral obtainedfrom the land. The accounts maintained by the petitioner would showthat from the date of grant of lease, the petitioner was able toremove only the earth and the surface soil, for a full period of 2years, which itself established that the quarry in question was avirgin, first time quarry. The petitioner has also produced, in thetyped set of papers, the details of transport permits issued by theDeputy Director (Mines) from 22.9.2003 upto 30.12.2005. Thesetransport permits indicate that what the petitioner could do for afull period of 2 years (even a little more than that), was only thepreparatory work of removing the surface soil. Therefore, accordingto the petitioner, the quarry in question could not have been an old https://hcservices.ecourts.gov.in/hcservices/ quarry at all, in the light of the fact that the petitioner could notget anything out of the quarry except surface soil and earth for theinitial period of 2 years out of the total period of lease of 5years. (b) The petitioner also engaged the services of oneDr.S.Rajendran, a Geologist, from the Department of Earth Sciences,Annamalai University, to make Geophysical Studies on the land inquestion and he filed a report, after inspection, that the area is aplain virgin land.(c) The petitioner had also made a representation dated15.3.2004 at the earliest point of time, pointing out that it was notthe virgin quarry and seeking the extension of the lease.(d) The petitioner, before coming to Court, approached theDeputy Director of Geology and Mining under The Right to InformationAct, seeking certain documents, so as to find out the exact areas,which were leased out earlier. The Deputy Director has also furnishedthe copies of certain documents and sketches, showing the portions ofland that were the subject matter of previous leases. These documentsand sketches have now been produced by the petitioner. On the basisof one of the sketches signed by the Assistant Director of Geologyand Mining, showing the residences within the 500 meter radius inSurvey No.25/2B, it was pointed out that only a small portion of thelarger extent in Survey No.25/2B had been granted by way of leaseearlier to Anna Harijan Contract Labour Cooperative Society and thatthe land in entirety in Survey No.25/2B was not the subject matter ofany prior lease.(e) The petitioner also drew my attention to another combinedsketch which formed part of the lease deed. That sketch shows thequarry portions situate outside the 300 meter radius of theresidential area. By inviting my attention to the sketch, it wascontended that the portion of land leased out to the petitioner couldnever have been the subject matter of any prior lease, consideringthe restrictions earlier placed and later modified to 300 meters. (f) The petitioner also relies upon an Inspection Reportsubmitted by the Assistant Director of Geology and Mining, on30.1.1993, at the time of scrutinising the application of TirusoolamAnna Harijan Blue Metal Works Labour Contract Cooperative SocietyLtd., for the grant of lease to quarry blue metal in Survey No.25/2B.It was pointed out in the Inspection Report, that there were nopermanent structures any where within the radius of 500 meters in thearea under reference. The subsequent proceedings of the DistrictCollector dated 12.3.1993, also contained a statement that there arestill vacant spaces available for quarrying, out of the 20 acres ofland in Survey No.25/2B. Therefore there are overwhelming materials according to thepetitioner, to show that the particular quarry leased out to thepetitioner was in fact a virgin quarry at the time of the grant andthat therefore in view of Rule 8(8), as interpreted by the DivisionBench, the petitioner was entitled to extension of the lease. https://hcservices.ecourts.gov.in/hcservices/

20. However, in response to the above contentions, Mr.P.S.Raman, learned Additional Advocate General, contended that once thevery notification inviting applications described the quarry inquestion as an old quarry and the petitioner obtained lease only inpursuance of the said notification, the petitioner was estopped fromclaiming the contrary. The petitioner cannot request this Court torewrite the tender conditions or the lease deed. The learnedAdditional Advocate General also distinguished the decision of theDivision Bench and the decision of the learned single Judge, on theground that in those cases, there was no finding of fact recorded,that the quarries in question were non-virgin quarries. Therefore,the learned Additional Advocate General justified the impugned orderand submitted that it did not call for any interference. 21. I have carefully considered the rival submissions. Unlikethe cases before the Division Bench in Srinivasan.A.'s case and thecase before Justice K.Suguna, a serious disputed question of fact hasarisen in the present case, as to whether Quarry No.4 in SurveyNo.25/2B, Tirusoolam Village, was a virgin quarry or not, even at thetime when the lease was granted in September 2003 in favour of thepetitioner. This is borne out by the following facts:-(i) In the Kancheepuram District Gazette notificationpublished on 19.12.2002, inviting applications for tender/auction,the quarry in question was listed at Serial No.4 under Schedule-A,under the heading "old stone quarries eligible for the grant of leasefor 5 years under Rule 8(8) of The Tamil Nadu Minor MineralConcession Rules, 1959". It is in pursuance of this notification thatthe petitioner applied and obtained a lease.(ii) In the order of rejection dated 2.9.2008, the DistrictCollector has taken a definite stand that the quarry in question isnot a virgin quarry. He has stated that the Tirusoolam Anna HarijanBlue Metal Workers Labour Contract Cooperative Society Ltd., wasoriginally granted a lease to quarry, in an extent of about 50.40acres in S.No.25/2B for the period ending 16.11.1984 and that suchlease was subsequently extended from 17.11.1984 to 16.11.1987 and15.2.1988 to 14.2.1991. It is further stated in the said letter thatthe same Society was granted lease over an extent of about 20 acres,after restricting the area and that another extent of 23.62 acres wasalso leased out from 2.1.1996 to 1.1.2001 to the same Society, on theWestern side of the quarry area. (iii) Even in the counter affidavit filed by the DistrictCollector in the first writ petition W.P.No.22068 of 2008, therespondent has furnished elaborate details of the previous leases. 22. By inviting my attention to (i) the Inspection Report ofthe Assistant Director of Geology and Mining, dated 30.1.1993, (ii)the Report of the Private Geologist engaged by the petitioner, (iii)the transport permits over a period of 2 years from September 2003 toDecember 2005 and (iv) the sketches enclosed to the lease deed withparticular reference to the prohibited distance changing from 500meters to 300 meters, the petitioner seeks to establish in this writpetition that the quarry is actually a virgin quarry in fact. https://hcservices.ecourts.gov.in/hcservices/

23. In other words, the petitioner has invoked the writjurisdiction of this Court to decide a seriously disputed question offact, with reference to the rival contentions and documents producedon either side. This, I am afraid, is not within the realm of thewrit jurisdiction of this Court. The petitioner cannot now seek todisprove a fact, that was admitted by both parties at the time ofentering into the lease, especially before a writ Court. 24. In the decision of the Division Bench in Srinivasan.A.'scase, the Bench recorded in paragraph-12 the submission that therewas no denial that the areas granted to the Lessees, which were thesubject matter of the writ appeals and the writ petitions, werevirgin on the date when they were granted. Again in paragraph-21 ofits decision, the Division Bench observed that the respondent-authorities had not denied the fact that at the time when the leaseswere granted to the Lessees, the areas were virgin. In paragraph-26of the judgment, the Division Bench pointed out that in so far as onewrit appeal and a few writ petitions were concerned, the Bench wasnot in a position to find out as to whether at the time when thelease was granted, the areas were virgin or not. Therefore that onewrit appeal and those few writ petitions were not allowed, but merelydisposed of, giving liberty to the appellant/petitioners to approachthe Government and establish the question of fact relating to thevirginity of the quarry. 25. A careful reading of the judgment of the Division Benchshows that the Bench was dealing with two sets of cases viz., (i)cases where there was no dispute that the quarries were virgin at thetime of the grant in favour of the petitioners/appellants before theBench and (ii) cases where this question of fact was not borne outdue to the absence of a counter affidavit from the respondents. It isonly in the first set of cases that the Division Bench granted therelief. In respect of the second set of cases, the Division Benchmerely directed the petitioners to go before the authorities andinvite a finding on the question of fact. In other words, theDivision Bench did not grant relief even to petitioners whoseassertion in their respective affidavits, was not controverted by anycounter affidavit by the respondents. In such circumstances, it isimpossible to think that the Division Bench judgment is in favour ofthe petitioner. 26. Similarly, in the case of M.Joseph Rathinasamy, it was anadmitted fact that Survey No.83 comprised of several parts, one ofwhich namely Part 8 alone was the subject matter of the writpetition. Even by the pleadings, it was established that only theother parts of Survey No.83 were leased out earlier. Therefore, thelearned Judge had no difficulty in breaking the Da Vinci Code andrecording a finding that the quarry in question was a virgin quarry. 27. But the case on hand poses serious disputes on the veryessential question of fact. In so far as a writ Court is concerned,the area relating to disputed questions of fact, is a no fire zone,into which thou shall not enter. https://hcservices.ecourts.gov.in/hcservices/

28. Apart from the fact that there are disputed questions offact, there is one more difficulty for the petitioner. The petitionerapplied for the grant of lease, in response to a notificationpublished in the Kancheepuram District Gazette, on 19.12.2002. Asstated earlier, Quarry No.4 in Survey No.25/2B, Tirusoolam Village,was listed at Serial No.4 in Schedule-A to the notification. Thecaption under Schedule-A made it clear that the quarries coming underSchedule-A are "old quarries". The quarries coming under Schedule-Bwere indicated to be "new quarries". The offer made by the petitionerfor the grant of lease, was certainly with the impression that it wasfor an old quarry. All persons who applied and participated in thetender/auction, in response to the said notification, would have alsoquoted a lease amount, only with the impression that it is an oldquarry. Among the persons who made offers, the petitioner happened tobe the highest bidder. One of the main considerations that weighed inthe minds of all the participants in the tender process, was the factthat it was an old quarry. Therefore, the prices quoted by all theofferors, were greatly influenced by this important fact, that it isan old quarry and that the duration of the lease would be 5 years.After having allowed all the players viz., the participants in theauction-cum-tender, a level playing field, with the rules of the gameclearly enunciated in the Gazette notification, it is not permissiblefor the winner, to change the rules of the game, after his victory,so as to reap a larger benefit. To do so would amount to hoodwinkingthe other participants in the tender-cum-auction process. 29. Moreover, it is by now well settled that a person whoparticipates in a tender process, is bound by the tender conditions.The duration of the lease stipulated in the tender, may be aprocedural aspect of the grant, which should fall in line with thestatutory rule {Rule 8(8)}, as held by the Division Bench inSrinivasan.A.'s case. But the statement made in the Gazettenotification that the quarry in question was an old quarry, isneither a procedural matter nor an empty statement, but a substantialissue, since the duration of the lease depends solely upon the same.On this issue of fact, admitted by both parties at the time ofentering into the contract, neither of the parties should be allowedto go back, after a long time. In other words, the petitioner, whobid in the auction for a quarry which was stated to be an old quarry,is estopped from contending otherwise, after bagging the contract.30. The present stand of the petitioner can be tested easilybe applying an inverted situation. If the Government had notified thequarry to be a virgin quarry and granted a lease for 10 years andlater on came up with a plea that it was wrongly notified as such,the very same petitioner would have pleaded estoppel against theGovernment. Therefore, what is sauce for the goose must be sauce forthe gander also. 31. Despite the fact that the leases of quarries fall withinthe realm of Government largesse, they do not completely lose thetrappings of contracts enforceable specifically on either side. Thegrants made by the Government, are elevated by Courts, from the levelof mere contracts, so as to test their validity on the touch stone offundamental rights, principles of fairness, reasonableness andproportionality. But they are never reduced from being contracts in https://hcservices.ecourts.gov.in/hcservices/ nature essentially. To put it differently, the Courts have never heldthat the fundamental principles of the law of contracts are neverapplicable to the grants made by the Government. 32. Viewed from the above perspective, it may be seen that thepetitioner and the respondent were parties to a contract. TheDistrict Gazette notification, was the invitation to offer. Thepetitioner and many others made their offers, accepting the terms andconditions prescribed in the "invitation to offer", viz., the Gazettenotification. We must note carefully that neither the petitioner norany other offeror, made a conditional offer. Out of the many offersmade in response to the Gazette notification, the respondent selectedthe petitioner and accepted his offer. This offer and acceptance gavebirth to the lease deed dated 16.9.2003. It is an elementaryprinciple of the law of contracts that "consensus ad idem" forms thefoundation of a contract. At the time when the petitioner's offer wasaccepted, both parties to the contract, had an identity of mind thatit was an old quarry. The invitation to offer, the offer and itsacceptance were only on that basis. As a matter of fact, the Gazettenotification dated 19.12.2002, clearly stipulated in the preamblethat all interested parties should make an inspection of the quarrysites and satisfy themselves both about the quality and about theavailability of the minerals. Therefore the offers made by allparties, including the petitioner, should be presumed to have beenmade only after such inspection. It was the duty of the petitioner tohave carried out the "virginity test" at that time, before evermaking an offer. After having made the offer and after having datedwith the bride, it is not open to the petitioner to turn round nowand claim that it was a virgin quarry. 33. In Har Shankar vs. Dy. Excise and Taxation Commissioner{1975 (1) SCC 737}, the Supreme Court held that those who offeredtheir bids in the auctions, with full knowledge of the terms andconditions, cannot be allowed to wriggle out of their contractualobligations arising out of the acceptance of their bids. Inparagraph-16 of its decision, the Supreme Court held that "those whocontract with open eyes must accept the burdens of the contract alongwith its benefits". 34. In New Bihar Biri Leaves Co. vs. State of Bihar {1981 (1)SCC 537}, the Supreme Court applied the maxim "qui approbat nonreprobat" {one who approbates cannot reprobate} and held that if aperson, of his own accord, accepts a contract on certain terms andworks out the contract, he cannot be allowed to adhere to and abideby some of the terms of the contract which proved advantageous to himand repudiate the other terms of the contract which might bedisadvantageous to him. 35. In Tata Cellular vs. Union of India {1994 (6) SCC 651},the Supreme Court held in paragraph-94(4) that "the terms of theinvitation to tender cannot be open to judicial scrutiny because theinvitation to tender is in the realm of contract". Again in Air IndiaLtd vs. Cochin International Airport Ltd {2000 (2) SCC 617}, theSupreme Court pointed out as follows:- https://hcservices.ecourts.gov.in/hcservices/ "The award of a contract whether it is by aprivate party or by a public body or the State, isessentially a commercial transaction. In arriving ata commercial decision, considerations which areparamount are commercial considerations."36. In Puravankara Projects Ltd vs. Hotel Venus Internationaland Others {2010 SCC 33}, the Supreme Court, while noting that thereis a vital distinction between the administrative and contractual lawdecisions, cited the above cases with approval and held in paragraph-33 as follows:-"33. Just as the principles of naturaljustice ensure fair decision where function isquasi-judicial, the doctrine of fairness is evolvedto ensure fair action when the function isadministrative. But the said principle cannot beinvoked to amend, alter or vary the expressed termsof the contract between the parties."37. Therefore, while it may be open to the petitioner, in viewof the judgment of the Division Bench in Srinivasan.A.'s case, toassail the duration of the lease, on the strength of the statutoryRule 8(8), if on facts it is a virgin quarry, it may not certainly beopen to the petitioner to challenge the categorical statementcontained in the tender notification that the quarry in question wasan "old quarry". To permit him to do so would amount to allowing himto rewrite the tender condition. Unfortunately for the petitioner, itis not permissible in law. 38. Therefore in brief, the petitioner is not entitled to therelief prayed for, on account of the fact (i) that a writ petitionraises a seriously disputed question of fact (ii) that the petitionercannot be permitted to rewrite the tender condition which describedthe quarry in question as an old quarry and (iii) that the petitioneris estopped from challenging the very tender condition, in respect ofwhich he became a beneficiary and enjoyed the fruits of the contractfor five full years. Hence the writ petition deserves to bedismissed. Accordingly, it is dismissed. Consequently, M.P.Nos.1 and2 of 2009 for stay and injunction are also dismissed. No costs. 39. The petition for impleading, M.P.No.3 of 2009 is by anelected member of the Panchayat. Though I permitted the learnedcounsel for the impleading petitioner to make submissions, I am ofthe considered view that he is not a necessary party to the writpetition, in view of the fact that the respondent had chosen todefend himself on facts and on law. Therefore M.P.No.3 of 2009 isdismissed.W.P.No.29185 of 2008:40. The prayer in this writ petition, as observed in the firstpart of this order, is to direct the respondent to consider theapplication of the petitioner for the grant of lease to quarry. Nowthat the writ petition filed by the former Lessee W.P.No.551 of 2009is dismissed, the respondent is duty bound to issue a Gazettenotification inviting applications for tender-cum-auction. At that https://hcservices.ecourts.gov.in/hcservices/ stage, the petitioner in this writ petition can always participate,if he is qualified and if he fulfils the eligibility criteria forparticipating in the tender. 41. Therefore W.P.No.29185 of 2008 is merely disposed of, witha direction to the District Collector, Kancheepuram (2nd respondent)to go ahead with the process of notifying the quarry in question forthe purpose of grant of lease and act in accordance with law.Consequently connected miscellaneous petitions are closed.Sd/-Asst. Registrar./true copy/ Sub Asst. Registrar. SvnTo1.The Secretary to the Department of Industries, State of Tamil Nadu, Fort St. George,Chennai – 600 009.2.The District Collector, Kancheepuram District, Kancheepuram.3.The Commissioner of Geology and Mining, Guindy, Chennai – 600 032.+ 1 CC to Mr.Ravikumar,Advocate,SR.19329+ 2 CC to Mr.R.Ramanlaal,Advocate,SR.19548+ 1 Cc to M/s.P.V.S.Giridhar & Sai,Advocate,SR.19933 W.P.Nos.29185 of 2008 and 551 of 2009RJ(CO)EM/30.4