Madras High Court
M. Ramasamy vs State Of Tamil Nadu on 22 September, 2014
Author: B. Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22-09-2014
Coram
THE HONOURABLE MR. JUSTICE B.RAJENDRAN
W.P. No. 181 of 2013
and
M.P. No. 1 of 2013
M. Ramasamy .. Petitioner
Versus
1. State of Tamil Nadu
Rep. by Secretary to Government
Industries Department
Fort St. George
Chennai 600 009
2. The District Collector
Sivagangai District
Sivagangai .. Respondents
Petition filed under Article 226 of The Constitution of India praying for issuing a Writ of declaration declaring that the proportionate lease amount of Rs.45,15,273/- representing the non-operated area of 24-00-0 hectares out of the total lease granted area of 40-82-5 Hectares, comprised in Survey S.F. No. 200 of Kirungakottai Village, Sivagangai District (formerly Pasumpon Muthuramalinga Thevar District) as illegal and consequently direct the respondents to refund the said sum of Rs.45,13,655/- together with interest of Rs.1,58,65,409/- calculated @ 24% per annum from the date of deposit till 04.12.2012 totalling to Rs.2,03,80,682/- and to pay further interest @ 24% per annum on Rs.45,15,273/- from 05.12.2012 to till the date of payment.
For Petitioner : Mr. K. Ramakrishna Reddy
For Respondents : Mr. K.V. Dhanapalan
Additional Government Pleader
ORDER
The petitioner seeks for a declaration to declare that he is entitled for proportionate lease amount of Rs.45,15,273/- towards the non-operated area of land covered under the lease agreement, measuring 24-00-0 hectares out of the total extent of 40-82-5 hectares, with interest.
2.(i) The petitioner was granted a sand quarry lease by the first respondent by issuing G.O. 3(D) No. 331, Industries (MMC-2) Department dated 22.11.1995 in respect of the land measuring 40-82-5 hectares comprised in Survey No. 200 of Kirungakottai Village, Sivagangai District. The lease was for a period of five years commencing from 04.12.1995 to 03.12.2000. The petitioner also executed a lease agreement on 04.12.1995 and it was duly registered. The petitioner also paid the lease amount for the entire extent of land covered under the lease agreement. Even though the order passed by the first respondent in G.O. 3(D) No. 331, Industries (MMC-2) Department dated 22.11.1995 as well as the lease agreement executed by the petitioner on 04.12.1995 indicate the extent of the land covered under the lease as 40-82-5 hectares, in the proceedings dated 04.12.1995 of the second respondent, the area of land was reduced to 16-00-0 hectares thereby the petitioner was deprived of leasehold land measuring about 24-00-0 hectares of land.
(ii) According to the petitioner, the second respondent had unilaterally reduced the extent of land covered under the lease agreement without any notice and it is illegal. Notwithstanding such reduced extent of land permitted to be quarried, the petitioner continued the quarrying operation in the reduced extent of land and completed the lease period of five years. Thereafter, the petitoiner filed W.P. No. 20636 of 2000 before this Court praying to direct the respondents to permit him to quarry and transport sand from the balance area of land measuring 24-82-5 hectares which was unilaterally reduced by the second respondent. This Court, by an order dated 07.12.2000, granted interim injunction restraining the respondents from interfering with the petitioner's right to quarry the land measuring an area of 24-82-5 covered under the lease agreement. Even thereafter, the second respondent permitted the petitioner only to quarry the land in an area measuring 2.00 acres or 0-82-5 hectares on the ground that the remaining extent of the lands covered under the lease agreement are situate within the prohibitory distance from the drinking water wells. Therefore, by letters dated 20.06.2001, 10.07.2001 and 16.07.2001, the petitioner requested the second respondent to allot alternative land towards the balance non-operated area, but the petitioner was not provided with any such alternative land on the ground that there is no provision in the Tamil Nadu Minor Mineral Concession Rules for grant of such alternative land. According to the petitioner, even though there are alternative lands available for quarrying, the petitioner was not provided with such alternative lands. The petitioner therefore filed another writ petition in WP No. 14373 of 2001 before this Court praying for issuance of a Mandamus directing the respondents to allot alternative sand quarry of 24-00-0 hectares either in S. No. 263 out of the total area of 50-67-5 Hectares and in S.No.163 measuring 8-10-5 Hectares, situated in Seikalathur Village. By order dated 31.10.2001, this Court allowed the said writ petition No. 14373 of 2001 directing the second respondent to allot the alternative sand quarry.
(iii) While the facts are so, the Government issued G.O. (Ms) No.95, Industries Department dated 01.10.2003 introducing Rule 38-A in the Tamil Nadu Minor Mineral Concession Rules, whereby the Government ordered to take over all the sand quarrying sites in the State and vested it with the Public Works Department. The validity of the Government order has been challenged before this Court and the Division Bench of this Court upheld the said Government Order, however, it was held that the existing lease holders can continue the quarrying operations till the expiry of the lease period. Aggrieved by the same, the Government has filed Special Leave Petition and the Honourable Supreme Court, in the decision reported in (2006) 4 SCC 517 modified the order and granted only six months time for quarrying the existing lease. Following the above judgment of the Honourable Supreme Court, the petitioner claims that he is also entitled to the benefits of the order passed by the Honourable Supreme Court.
3. According to the learned counsel for the petitioner, the respondents did not provide alternative site to the petitioner even though the petitioner paid the entire amount towards the entire extent of land covered under the lease agreement. Therefore, the petitioner is entitled for refund of the amount proportionate to the non-operated quarrying site with interest.
4.(i) The learned Additional Government Pleader appearing for the respondents would contend that the area of land covered under the lease deed as well as the lease agreement was reduced because of the fact that a portion of the land allotted to the petitioner is situate within the prohibitory distance of water sources, therefore, the petitioner was not permitted to carry on the quarrying operation in those lands. According to the learned Additional Government Pleader, if the petitioner was aggrieved by the reduction in area of land, he ought to have filed a statutory appeal as contemplated under Section 36-D of the Tamil Nadu Minor Mineral Concession Rules, 1959 soon after the execution of the lease deed, but he did not do so. Rather, after completing the period of lease in the portion of the land allotted to him, he filed WP No. 20636 of 2000 before this Court and obtained an interim order on 07.02.2000. For non-compliance of the order dated 07.02.2000 in WP No. 20636 of 2000, the petitioner also filed Contempt Petition No. 789 of 2000. In other words, the petitioner carried on the quarrying operation in whatever area allotted to him without raising any objection and after expiry of the period of lease, he filed the writ petition and obtained an interim order. The petitioner also did not question the order passed by the second respondent by which the area of quarrying site was reduced.
(ii) The learned Additional Government Pleader also would contend that the petitioner also filed another writ petition No. 14373 of 2001 seeking to allot alternative site . While WP No. 20636 of 2000 was dismissed on 31.10.2001, the othe WP No. 14373 of 2001 was disposed of directing the respondents to consider providing alternative site to the petitioner. As against the same, the respondents filed W.A. Nos. 2818 of 2001 and it was disposed of on 26.09.2007 following the order passed by the Honourable Supreme Court in the case of State of Tamil Nadu vs. V. Krishnamoorthy reported in 2006 4 SCC 517. Pursuant to the said order passed by the Division Bench, an order dated 04.03.2008 was passed by the second respondent holding that there is no provision for grant of alternative site from one quarry to the other. As far as the prayer for refund of the amount, since the lease deed was executed on 04.12.1995 and the lease period also expired and the petitioner also carried on the quarrying operations without questioning the reduced area of land allotted to him, he is not entitled for refund of the lease amount and he prayed for dismissal of the writ petition.
5. The petitioner has filed a reply affidavit. Relying on the reply affidavit, the learned counsel for the petitioner would contend that for non-compliance of the order dated 26.09.2007, the petitioner filed a contempt Petition No. 428 of 2010, but it was dismissed on 09.04.2010 on the ground that the respondents have preferred special leave petitions in SLP (C) No. CC No. 4346 of 2011. The Special Leave Petition was dismissed by the Honourable Supreme Court on 14.03.2011, thereby the order passed by the Division Bench on 26.09.2007 was upheld. Consequently, the respondents are bound to allot alternative area equivalent to 24-00-00 hectares, but the same was not granted. Further, Rule 38-A of the Minor Mineral Concession Rules contemplates refund of amount and therefore it cannot be said that there is no provision for refund of the lease amount. Therefore, the respondents have to refund the amount with interest for the delay in refunding the amount. The respondents, having received the lease amount even during the year 1995 and having failed to allot the extent of land covered under the lease deed, are bound to refund the amount when they did not provide alternative site to the petitioner.
6. I heard the counsel for both sides and perused the materials placed on record. This is a peculiar case where the government granted lease to the petitioner in respect of the land measuring a total extent of 40-82-5 hectares. However, admittedly, a leasser extent of land alone was allotted to the petitioner on the ground that the remaining lands are situated within the prohibitory distance of water sources. The petitioner also did not question the reduction of area of land and continued the quarrying operation in whatever extent of land allotted to him for five years. It is stated in the counter affidavit that the petitioner was directed to ventilate his grievance by filing a statutory appeal as contemplated under Section 36-D of The Tamil Nadu Minor Mineral Concession Rules, but the petitioner did not exhaust such remedy. The petitioner, after completion of the five year of lease period, has approached this Court by filing a writ petition in WP No. 20636 of 2000 and obtained an order of injunction restraining the respondents from interfering with his possession and right to excavate the land measuring 24.82.5 hectares. Pursuant to the order of injunction, the respondents did not permit the petitioner to quarry 24.82.5 hectares of land but only 0.82.5 hectares land. This writ petition was withdrawn by the petitioner in the year 2001. Later, the petitioner filed another writ petition in WP No. 14373 of 2001 and this Court, by an order dated 31.10.2001, directed the second respondent to allot alternative site to the petitioner. Against this order dated 31.10.2001, the respondents filed W.A. No. 2818 of 2001. In the meantime, the Government issued G.O. Ms. No.95, Industries Department dated 01.10.2013 and introduced Rule 38-A to the Tamil Nadu Minor Mineral Concession Rules thereby all the quarrying sites have been taken over by the Public Works Department. The validity of the said Government Order was upheld by the Division Bench of this Court, but permitted the then existing lesses to complete the period of lease. Against this order, Special Leave Petitions have been filed and the Honourable Supreme Court, while confirming the order of the Division Bench, modified the same to the effect that the then existing lessees and those who have approached the Court for execution of lease agreements can quarry for a period of six months inasmuch as the Government did not cancel the existing lease in the Government Order. Therefore, according to the petitioner, in view of the order passed by the Honourable Supreme Court, he is entitled for allotment of alternative site.
7. It is needless to mention that the petitioner has asserted his right by filing writ petitions before this Court at different stages. At the same time, it has to be stated that in none of the writ proceedings, the petitioner sought for refund of the lease amount. Only for the first time in this writ petition filed during January 2013, the petitioner made such a claim for refund. Therefore, there is lacuna on the part of the petitioner. On the one hand, the petitioner pleads that only because of the fact that the respondents permitted him to carry out the quarry in a lesser extent of land, than what was stated in the lease agreement, he was prejudiced. On the other hand, the petitioner did not assert his right to seek for refund of the amount. Equally, the respondents are also to be blamed. The respondents contend that the petitioner kept quite till the completion of lease period for five years and carried on the quarrying operation in whatever extent of land allotted to him and therefore, he is estopped from claiming refund at this stage. It is also the case of the respondents that as there is no provision for grant of alternative site, the claim of the petitioner for refund cannot be considered.
8. Be that as it may, at the first instance, the respondents ought not to have notified the land situated within the prohibited area of water source for lease. The respondents not only notified such lands which are situate in prohibitory distance near the water source, but also received the lease amount from the petitioner for the entire extent of land, even though a reduced extent of land was made available to the petitioner for his quarrying operation, which is contrary to the lease agreement. When the lease was notified, the respondents must have been fully aware of the fact that some of the portion of the lands leased out to the petitioner is situate within a prohibited distance near the water source. Therefore, the respondents ought not to have either notified such lands or allotted it to the petitioner for quarrying. In such circumstances, in all fairness, the respondents ought to have refunded the proportionate lease amount for the area to which the petitioner was not allowed to quarry even during the year 1995, but that was not done. As mentioned above, the petitioner must also be blamed for not questiioning the reduced extent of land made available to him before taking up the quarrying work or atleast within the period of five years period of lease. The petitioner conveniently enjoyed the quarrying lease granted to him and thereafter sought alternative site to carry out the quarrying operation in the non-operated area of land covered in the leaase agreement. Further, the petitioner was also granted lease to quarry an area of 0.82.5 hectares after the expiry of the five year period of lease on the basis of the order passed by this Court. The fact remains that the petitioner was not permitted to carry out quarrying operation in the entire extent of land covered in the leaase agreement, even though the respondents received the entire lease amount. Therefore, I am of the view that the petitioner is entitled for refund of the amount proportionate to the area of land which he was not permitted to quarry.
9. In this writ petition, the petitioner not only claims refund of the amount proportionate to the non-operated area of land but also seeks interest thereof. It is therefore necessary to consider whether the petitioner is entitled for payment of interest. In the ordinary circumstances, this Court would have directed the respondents to pay interest as claimed by the petitioner especially when the lease amount for the entire extent of land paid by the petitioner was in the hands of the respondents for a long time. But in this case, as mentioned above, the petitioner is also to be blamed for remaining silent without asserting his right atleast till the completion of the five year period of lease. The petitioner is pretty well aware of his right to seek for refund when he was not permitted to carry out the quarrying operation in respect of the entire extent of land covered in the lease agreement. But the petitioner never asserted such right atleast till January 2013 when he filed the present writ petition. Only in this writ petition, for the first time, the petitioner seeks for refund of the amount along with interest. In the earlier two writ petitions filed by the petitioner, such a relief was not sought for by the petitioner. Rather, the petitioner only sought for alternative site to carry out quarrying operations. After having failed in all his attempt to get lease hold right towards the non operated area, the petitioner has filed this writ petition. In other words, the petitioner ought to have sought for the relief prayed for in this writ petition even in the year 1995, but he did not do so. But as mentioned above, only for the first time in this writ petition, the petitioner claimed refund of the amount towards interest. Therefore, at best, the petitioner is entitled for payment of interest only from the date of filing the present writ petition viz., 03.01.2013 till the date of payment.
In the result, the writ petition is partly allowed directing the respondents to refund the amount proportionate to the area of land which the petitioner was not permitted to quarry together with interest at the rate of 12% per annum from the date of filing the present writ petition viz., 03.01.2013 till the date of payment. No costs. Consequently, connected miscellaneous petition is closed.
22-09-2014 rsh Index : Yes / No Internet : Yes / No To
1. State of Tamil Nadu Rep. by Secretary to Government Industries Department Fort St. George Chennai 600 009
2. The District Collector Sivagangai District Sivagangai B. RAJENDRAN, J rsh WP No. 181 of 2013 22-09-2014