Madras High Court
Hari Traders Represented By Its ... vs Government Of India Represented By The ... on 4 June, 2002
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Since both the petitioners are questioning the very same order of the first respondent dated 24-9-2001, they are being disposed of by the following common order. Aggrieved by the order of the first respondent dated 24-9-2001, setting aside the mining lease granted in their favour by the State Government, and remanding the case to the State Government to consider the mining lease application of the third respondent herein-M/s. Thenpandi Minerals over the applied area of 8.89.5 Hectares on merits and in accordance with law, the petitioners have filed the above writ petitions to quash the same on various grounds.
2. The case of the petitioners is briefly stated hereunder:- The petitioners in both the writ petitions are family partnership firms. Both the partnership firms are carrying on business of quarrying and marketing limestone and lime for the past ten years. Both the firms are owning several patta lands and also owning limestone based factories at Bodinaickanur, Kappalur, Theni and Virudunagar. To cater the raw material requirements of their factories, the petitioners have applied and got limesotone quarry leases in the districts of Dindigul, Tuticorin and Tirunelveli. They are owning patta lands at Myladumparai village, Andipatti Taluk, Theni District. They obtained B-Memo pattas in respect of the adjacent revenue lands of the said patta lands and have grown cashew nut trees in the said adjoining poramboke lands and the said lands are in the possession of the petitioners for the past 10 years. By application dated 4-12-95, the petitioner in W.P.No.19026/2001 has applied to the second respondent for limestone quarry lease in respect of Survey Nos. 567/6 (0-35-0 hectares); 567/7 (1-05-0 hectares); 567/9 (0-04-5 hectares); 567/10 (0-06-0 hectares); 567/12 (0-02-0 hectares); 567/13 ((0-06-0); 567/14 (0-07-0 hectares); 567/15 (1-58-0); 567/16 (0-02-0 hectares); 567/17 (0-03-0 hectares) and 567/18 (0-98-0 hectares)=total extent 4-26-5 hectares. The petitioner in W.P.No.19027/2001 by application dated 24-11-95, has applied to the 2nd respondent for limestone quarry lease in respect of S.Nos. 570/2 (0-75-5 hectares); 570/5 (0-83-5 hectares); 570/6 (0-73-0 hectares); 570/7 (2-49-5 hectares) and 570/3 (1-19-0 hectares)=total area 6-00-5 hectares. The above survey numbers which are including the said B-Memo patta lands are situated in Myladumparai village, Andipatti taluk, Theni District. After getting report of the District Collector and after satisfying with the credentials and the bona fide requirements of the raw material to the petitioners' factories, the second respondent by G.O.3 (D) No.75, Industries (MMD.2) Department dated 31-7-2000 has granted lease to the petitioner in W.P.No.19026/2001 to quarry limestone in respect of 1-58-0 hectares in S.No. 567/15 and 0-98-0 hectares in S.No. 567/18=total extent 2-56-0 hectares; and to the petitioner in W.P.No.19027/2001 in respect of 0-75-5 hectares in S.No. 570/2 and 2-49-5 hectares in S.No. 570/7=total extent 3-25-0 hectares. Pursuant to the said grant, the second respondent executed a lease agreement on 23-8-2000 in respect of the said area in favour of the respective petitioner and duly registered. The said lease is for the period 20 years from 23-8-2000 to 22-8-2020. After the said execution of the lease deed, the respective petitioner has taken possession of the said quarry and commenced quarry operations. It seems that the third respondent has also applied for limestone quarry lease in respect of certain survey numbers for a total area of 8-89-5 hectares. The 2nd respondent by the same G.O., dated 31-7-2000 has directed the 3rd respondent to apply afresh after forming an approach road to the area for which mining lease is sought for. The third respondent has filed a revision application before the first respondent against the said G.O., dated 31-7-2000. By the impugned order dated 24-9-2001, the first respondent has allowed the said revision application filed by the third respondent and set aside the grant made in favour of the petitioners. Hence the above writ petitions.
3. The third respondent namely M/s Thenpandi Minerals,filed a separate but identical counter affidavit in both the writ petitions. It is stated that they applied for grant of mining lease for limestone quarrying for a period of 20 years on 6-11-95 in respect of various survey numbers. Even though the 3rd respondent has made application for several survey numbers, W.P.No.19026/2001 relates to only the S.Nos. 567/15, 567/18 and 569/3; and W.P.Nos. 19027/2001 relates to only Survey Nos. 570/2, 570/7 and 569/3. The third respondent has made an application for the grant of lease in respect of Survey Nos. 567/6 and 567/7 on 6-11-95. The petitioner in W.P.No.19027/2001 has also made an application in respect of same survey number on 24-11-95, except Survey No. 569/3. Based on the repost of the Collector, the Government of Tamil Nadu has passed an order on 31-7-2000, granting mining lease in favour of the writ petitioners subject to the condition that they should form an approach road at their own cost before commencing the mining activities. However, the Government rejected the request of the third respondent and advised them to apply afresh after forming an approach road to the area for which mining lease is sought for. The third respondent has got a preferential right than the writ petitioner, since they (3rd respondent) made an application on 6-11-95, whereas the writ petitioner in WPs.19026/2001 and 19027/2001 made an application only on 4-12-95 and 24-11-95 respectively. The 3rd respondent have adequate knowledge and experience in mining activities and their financial position is sound. Inasmuch as the petitioners are only encroachers and their occupation is not lawful, they cannot claim any preference and their request is liable to be rejected. After considering all those aspects, the first respondent has rightly set aside the grant made in favour of the petitioners and remitted the matter to the State Government for fresh disposal.
4. In the light of the above pleadings, I have heard Mr. M. Krishnappan, learned counsel for the petitioner in both the Writ Petitions and Mr. R. Krishnamoorthy, learned senior counsel for the third respondent as well as Mrs. G. Kavitha, learned Government Advocate for 2nd respondent.
5. The only point for consideration in these writ petitions is whether the first respondent-Government of India, Ministry of Mines, New Delhi is justified in passing the impugned order setting aside the grant of mining lease granted earlier in favour of the petitioners and remanding the matter back to the State Government to re-consider the mining lease application of the third respondent.
6. Mr. M. Krishnappan, learned counsel for the petitioner has raised a contention that the revision application filed by the third respondent before the first respondent is not maintainable, and that the impugned order was passed by the first respondent without application of mind; hence it cannot be sustained. In such a situation, the third respondent cannot claim preferential right. He also contended that though the second respondent has not assigned any special reason, it could be presumed that it was passed by exercising the powers vested under Section 11(5) of the Mines and Minerals (Development and Regulation) Act, 1957. On the other hand, Mr. R. Krishnamoorthy, learned senior counsel for the third respondent, after taking me through the various factual aspects, has contended that in the light of the statutory provisions, the application of the third respondent being earlier than that of the petitioners and inasmuch as the petitioners are encroachers of the Government land, the first respondent is fully justified in remanding the matter back to the state Government for consideration of the mining lease application of the third respondent herein.
7. I have carefully considered the rival submissions.
8. It is clear from the materials and records that the third respondent made an application on 6-11-95 for the grant of mining lease for the limestone in Mayiladumparai village in Andipatti Taluk, Theni District in respect of various survey numbers. M/s Baskar Lime Industries (petitioner in W.P.No. 19027/2001) and M/s Hari Traders (petitioner in W.P.No. 19026/2001) have also applied for similar limestone quarry lease on 24-11-95 and 4-12-95 respectively in respect of certain survey numbers. Even though both parties made applications in respect of several survey numbers, the writ petition relates to Survey Nos. 567/15, 567/18 and 569/3. Before considering the main question, it is to be noted that subsequent to the application made by the third respondent, according to him, on verification, he came to know that S.Nos. 567/6 and 567/7 have been sub-divided into various survey numbers and the lands covered in Survey No.567/6 and 567/7 have become Survey Nos. 567/15 and 567/18. According to him, a letter has been sent to the Government, and subsequently the said Survey Nos. have been changed to 567/15 and 567/18. This is also clear from the sketch supplied by the Village Administrative Officer. Accordingly, the third respondent requested the Government to process the application for the S.No. 567/15 and 567/18. This is also clear from the communication of the District Collector. Accordingly, though Mr. M. Krishnappan, learned counsel for the petitioners, contended that the third respondent did not apply for the land in S.Nos. 567/15 and 567/18, I am of the view that in the light of the information furnished, as well as the intimation sent to the concerned Government for correction of his application, the said contention is liable to be rejected. Regarding preferential right, admittedly the third respondent had applied for mining lease on 6-11-95. On the other hand, the petitioners have applied for mining lease of the very same Government lands along with the patta lands only on 4-12-95 and 24-11-95 respectively. As per sub-section (2) of Section 11 of the Mines and Minerals (Development and Regulation) Act, 1957 (in short "the Act"), the applicant whose application was received earlier shall have a preferential right to be considered for grant of reconnaissance permit, prospecting licence or mining lease as the case may be, over the applicant whose application was received later. I have already referred to the fact that among the three, the application of the third respondent dated 6-11-95 is earlier. So it gets preference from the other two applications.
9. A perusal of the order of the second respondent-State Government shows that after getting a report from the District Collector with reference to the three applications of the petitioners as well as the third respondent, the Government have simply accepted the report of the District Collector that mining lease for limestone in respect of Survey Nos. 570/2, 570/7, 570/3, 567/15, 567/18 may be granted in favour of the petitioners subject to the condition that they should form an approach road at their own cost before commencing mining operation. On the other hand, as rightly concluded by the first respondent, the second respondent has suggested the third respondent-M/s Thenpandi Minerals to apply afresh after forming an approach road to the area for which Mining lease is sought for. The perusal of the order of the second respondent would clearly show that it merely endorsed the view expressed by the District Collector and has not assigned any special reason for granting mining lease in favour of the petitioners when they are also encroachers of certain Government lands.
10. As rightly concluded by the Government of India, the state Government have not invoked its power under Section 11(5) of the Act since they have not given any special reason or reasons for granting mining lease in favour of the petitioners. Even according to the State Government, the third respondent is having adequate knowledge and experience in mining. It is clear that the application of the third respondent has not been rejected on the ground of lack of experience or financial resources or knowledge in mining. The only reason for rejection of the mining lease application of the third respondent is that they may not be in a position to get access to the land applied area. At the same time, even though the petitioners are found to be encroachers of Government land and have access to the applied area, mining lease have been granted in their favour. As rightly observed by the first respondent, the practice of giving preference to the encroachers cannot be appreciated. As stated earlier, since the petitioners are having encroached land along with their patta lands and have approached road to the applied area, the State Government considered their application and when the third respondent is also having the same benefit, namely, having encroached land adjacent to his patta land, his claim was rejected with a direction to apply afresh after forming an approach road to the applied area. I have already referred to the fact that though the State Government has power under Section 11(5) of the Act to grant lease by showing special circumstances, as rightly observed by the first respondent, no special reasons have been stated in the order of the State Government. In the light of what is stated above, the first respondent is fully justified in setting aside the grant made in favour of the petitioners and remitting the matter back to the State Government to consider the mining lease application of the third respondent over the applied area of 8.89.5 hectares on merits and in accordance with law. I am satisfied that the order of the first respondent does not suffer from any error of law or illegality and I am in agreement with the same. I have already referred to the fact that the State Government has committed an error in granting lease in favour of the petitioners with a direction to form an approach road. On the other hand, for the same facts and circumstances, it directed the third respondent herein to apply afresh after formation of access road to the applied area. The approach and the ultimate order of the State Government cannot be sustained and the Government of India is fully justified in remitting the matter to the State Government for re-consideration. Even if there is any mistake or confusion in the sub-division of land, it would be open to the State Government to get a specific report from the officer concerned and pass appropriate orders, as directed by the Government of India. In the light of what is stated above, I do not find any merit in these writ petitions; accordingly they are dismissed. No costs. Consequently, all the WPMPs., and WVMPs.,are closed.