Madras High Court
The District Collector And Ors. vs S.R. Pitchai on 15 December, 1989
Equivalent citations: (1990)1MLJ106
ORDER Sathiadev, J.
1. The three respondents in W.P. No. 9485 of 1989 are the appellants and the writ petitioner is the sole respondent herein. (Ranking of parties as in writ petition).
2. The petitioner filed the writ petition to quash the order of the first respondent Collector of Tiruchirapalli dated 30.6.1989 and to direct him to renew the lease in his favour for a further period of three years under Tamil Nadu Minor Mineral Concession Rules, 1959 (hereinafter called as the Rules)
3. Petitioner claimed that he had taken on lease the sand quarry in Coleroon River in Madhavaperumal Koil Village in Lalgudi Taluk for three faslis (fasli 1396 to 1398) in public auction held on 14.7.1986 by the third respondent and confirmed by the first respondent by order dated 28.7.1986. As the lease was coming to end, on 22.3.1989 he applied to the first respondent under Rule, for renewal for a further period of three years. He also agreed to pay the lease amount for each succeeding year by an increase of 10%. Since he did not receive any reply to the said application, he sent another letter on 23.6.1989 as the lease was coming to an end on 30.6.1989. In spite of it, first respondent having not passed any order, he filed W.P.No. 8680 of 1989 for issue of a writ of mandamus to direct the first respondent to renew the lease. By order dated 5.7.1989, this Court had directed the first respondent to dispose of the renewal applications filed by him on 22.3.1989 and 23.6.1989 within a period of eight weeks. First respondent was telegraphically informed about this order on 5.7.1989 itself. On 7.7.1989 he received an order dated 30.6.1989 from first respondent rejecting the renewal of lease as asked for. This was followed by a publication in the District Gazette of Tiruchirapalli dated 12.7.1989 proposing to hold an auction of the sand quarry on 20.7.1989. Even though in the impugned order it is stated that he has a right of appeal, since it is not efficacious remedy, he has filed the present writ petition for the relief as prayed for. As for the Government's decision spelt out in its letter dated 5.12.1984, even though he had asked for a renewal of lease for three years, he is entitled to have an extension of two years from 1.7.1989 to 30.6.1991 subject to such enhancement in lease amount for the extended period.
4. Pending disposal of the writ petition, in W.M.P.No. 13637 of 1989, Learned Judge having permitted the petitioner to quarry on his paying the lease amount at 25% of the lease amount within four weeks from 25.8.1989, this writ appeal had been preferred by the respondents claiming that in the absence of any provision in this regard under the Rules, the direction given is contrary to law and against public interest and that the application for renewal dated 23.6.1989 was received by the Collector on. 26.6.1989, and it having not been filed three months before the date of expiry of the lease as per Rule 9 (2), petitioner cannot get relief in the main writ petition, and therefore, he cannot secure such an order pending disposal of the writ petition.
5. Learned Counsel Mr. R. Krishnamurthy appearing for the petitioner, in his extensive submissions, would state that the impugned order did not take into account R.9 (2) in the manner now put forth and that an application having been sent on 22.3.1989 for renewal, the first respondent has come forward with a false claim that the only renewal application received by him is the application dated 23.6.1989 and it was received only on 26.6.1989 and that the period of lease was to come to an end on 30.6.1989, and therefore, whatever had been sent by petitioner on 23.6.1989 was a reminder letter of the application already sent on 22.3.1989. He would also submit that under the impugned order, different factors having been taken into account to reject the application, and when those grounds cannot exist on the date when an application is made for renewal under Rule 9, there was no illegality in the order of the learned Judge which is under appeal. Lastly, he would submit that the objection taken in this appeal is an aspect which will have to be decided in the main writ petition and therefore prima facie petitioner had made out a case for getting the relief as ordered. For whatever quarrying operations carried on, when he is liable to pay and that too at an enhanced rate, there could be no loss of revenue to the State.
6. On behalf of the respondents learned Government Pleader by placing the original records before Court, submits that the so called application for renewal sent on 22.3.1989 had never been received and the only application received was the one dated 23.6.1989 and it was received by the first respondent on 26.6.1989, and a Division Bench of this Court having already held that unless a renewal application is received within three months before expiry of the lease as per Rule 9 (2), it is not a valid renewal application; irrespective of whatever be the other grounds relied upon by the first respondent to reject the application and in law when such an application is liable to be rejected, the conclusion arrived at by him is justified.
7. A Division Bench of this Court has already held in A. Eswaramurthy v. Government of Tamil Nadu represented by Commissioner & Secretary, Industries Department, Madras & Others etc. (in W.P.Nos. 8073 to 8077 of 1989, order dated 19.10.1989) that if as per Rule 2 an application for renewal is not made within three months prior to the date of expiry of the lease, it is not valid application for renewal. Therefore, the primordial point that calls for consideration is, whether petitioner had made an application on 22.3.1989 as claimed by him or not. In the supporting affidavit filed in the writ petition, in three places, he has sworn before Court that he had sent an application for renewal on 22.3.1989 to the first respondent. He states that as he did not receive any reply, he sent another letter on 23.6.1989 as the lease was coming to an end on 30.6.1989. In support of this claim, in the typed set of papers, he has filed two certificates of posting bearing the postal seal as 22.3.1989 one addressed to the Collector of Tiruchirapalli District and the other to the Joint Director of Mines and Minerals, Tiruchirapalli. It is not known as to why he should have sent a communication to the second respondent. He has not marked a copy of the letter dated 23.6.1989 to the second respondent. If he had really, sent any other separate communication to him regarding the renewal on the same date, he could have placed before Court a copy of the said communication. Further if he had really sent a renewal application on 22.3.1989, in the affidavit when he claims that in the absence of any reply, he had sent "another letter on 23.6.1989", he would have definitely made a reference therein to the application already made by him. A copy of the letter dated 23.6.1989 as filed into Court reads as if it is an application filed seeking for extension of lease for a further period of three years, and agreeing to pay for each succeeding year at an increase of 10%. There is absolutely no indication that he had earlier sent any application for renewal of the lease, and that this was a reminder letter. Records produced by the respondents would show that this communication was received by the Collector on 26.6.1989.
8. One other significant aspect is that, even though before the Division Bench he had filed these certificates of posting and had sworn in the affidavit filed in support of the writ petition in three places that he had sent the renewal application on 22.3.1989 and has further asserted to the same effect in para 4 of the affidavit filed before this Division Bench in C.M.P.No. 14613 of 1989; while filing the typed set of papers in W.P.No. 8680 of 1989 he had filed xerox copies of the alleged petition for renewal sent on 22.3.1989. At the top of this communication he had typed in capital letters "RPAD". If he had really sent the renewal application by registered post with acknowledgement due, he should have produced before Court the acknowledgement receipt or proved the fact that he had sent the application by registered post by furnishing the particulars obtained from the Postal Department regarding the date on which he had sent the communication. Whereas his claim is that, he had sent the renewal application by certificate of posting. This clearly shows the falsity of his claim about forwarding the renewal application on 22.3.1989. Evidently, utilising some other communication sent by him by certificate of posting on that date, he had filed W.P.No. 8680 of 1989 in this Court by filing a xerox copy that he had sent the renewal application on 22.3.1989 by registered post with acknowledegment due, whereas in the subsequent writ petition filed viz., W.P.No. 9485 of 1989 he has stated that he had sent it by certificate of posting. This is a clear case of perjury for which he deserves to be proceeded against.
9. There is yet another aspect of perjury committed by him which is in respect of the xerox copy of the letter dated 23.6.1989 filed in W.P.No. 8680 of 1989. The original of this communication in the file of the first respondent bears the signature which is quite different from the signature in the copy filed into Court. When party to a proceeding invokes the jurisdiction of this Court under Article 226 of the Constitution of India, he is always expected to come to court with clean hands. When writ petitions and writ appeals are heard they are disposed of on sworn-affidavits, and by relying upon the documents filed by parties. Hence any attempt made to misguide the Court or to file concocted documents or to swear to false statements, in affidavits or to file documents with a full knowledge that they have been created to abuse the process of Court, will have to be sternly dealt with. It is by making a patent false claim before the learned Judge that he had sent an application for renewal of the lease on 22.3.1989, he secured an order of mandamus directing the first respondent/Collector to consider that application along with the application dated 23.6.1989. He also obtained an order to continue to carry on quarrying operations till the disposal of the application within eight weeks from 5.7.1989. Not stopping with this, on filing W.P.No. 9485 of 1989, he has now secured an order in W.M.P.No. 13637 of 1989 dated 25.8.1989 to continue to carry on quarrying operations. He has made unjust enrichment by abusing the process of Court. Respondents have claimed that on an average he has been removing 300 lorry loads of sand every day, whereas as per records he had obtained transport permits only for 5,700 lorry loads monthly. In the order dated 30.6.1989 the Collector had stated that the petitioner had not maintained correct accounts nor produced them for scrutiny. Under the Rules, he had no right to carry on quarrying operations, on and from 1.7.1989. It is only by abuse of process of Court, he had secured the orders above referred to. Therefore for whatever loss the State had suffered hitherto, he would have to be proceeded against for recovering the loss, and any other action permissible in law could also be taken against him.
10. Before concluding, it is necessary to state that when a definite period is fixed for a mining lease, on it's expiry a party to such a lease transaction cannot secure the nature of order as obtained by the petitioner either in W.P.No. 8680 of 1989 or in W.P.No. 9485 of 1989 or in W.M.P.No. 13637 of 1989. When the rules contemplate renewal and in the absence of an order for renewal, it is not for the court to permit any quarrying operations against the rules, by imposing the conditions in the manner as done. Learned Judge had relied upon the earlier order of this Court pending disposal of W.P.No. 7808 of 1989. Such directions and enablement cannot be ordered under these rules, once it is shown that the period of lease has come to an end. The discretionary powers of courts do not go to the extent of re-writing the terms of the lease and by imposing conditions which are not permissible under the rules.
11. As stated above the eradication of perjury which is of late indulged in more often than not, this is a fit matter wherein notice will have to be issued to the respondent to show cause as to why he should not be prosecuted for perjury. Hence, the Registrar is directed to issue notice to him returnable by 8.1.1990.
12. For the reasons above stated, this writ appeal is allowed with exemplary costs of Rs. 2,000 payable by writ petitioner/respondent herein.