Karnataka High Court
P.V. Balakrishana Reddy vs Director Of Mines And Geology on 30 January, 1990
Equivalent citations: ILR1990KAR1858
JUDGMENT K.A. Swami, J.
1. This Writ Appeal is preferred against the order dated 13th June, 1983 passed in W.P.No. 4751/1983. The appellant/petitioner sought for the following reliefs in the Writ Petition:
"a) to declare that the petitioner is entitled to enjoy the lease hold rights over the leased area covered by lease deed bearing No. 1924 for a further period of 1 year 9 months and 16 days from 9-3-1983 by the issue of a Writ of Mandamus or any other appropriate order.
b) to issue a Writ of Mandamus directing the respondents its Officers subordinates and men not to prevent the petitioner from enjoying the lease hold rights over the leased area for a further period of 1 years 9 months and 16 days from 9-3-1983.
c) to award costs of the petitioner;
d) to pass such further or other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."
2. In this Judgment the appellant will be referred to as the petitioner.
3. The petitioner was granted a quarry lease on 8-3-1978 for a period of five years to quarry black granite in an area of 3 acres and 10 guntas comprised in S.No. 243 of Melamala village, Chamarajanagar Taluk under a quarry lease deed bearing No. 1924 under the provisions of the Karnataka Minor Mineral Concession Rules, 1969 (hereinafter referred to as the 'Rules'). The lease was for a period of five years from 8-3-1978, Thus, the lease was to expire on 8-3-1983. During the subsistence of the lease the Deputy Director of Mines and Geology, Government of Karnataka terminated the lease on 22-5-1981 on the ground that the petitioner failed to pay the royalty. The order of the Deputy Director of Mines and Geology was confirmed by the Director of Mines and Geology. The petitioner preferred Writ Petition No. 12129/1982 challenging the validity of the order passed by the Director of Mines and Geology and also that of the Deputy Director. The Writ Petition was allowed on 3rd August 1982. The orders of the Director and the Deputy Director of Mines and Geology were quashed. Thereafter, it appears, the petitioner operated the quarry upto the expiry of the lease period i.e., 8-3-1983. He filed the Writ Petition out of which the appeal in question arises on 7-3-1983 for the aforesaid reliefs. The petitioner placed reliance on Clause 1 of Part VIII and Clause 7 of Part IX of the lease deed entered into between the petitioner and the Government under the Rules. The learned Single Judge took a view that Clause 1 of Part VIII and Clause 7 of Part IX of the lease did not cover the case therefore, the petitioner was not entitled to the relief sought for. Accordingly, dismissed the Writ Petition. The relevant portion of the order of the learned Single Judge reads thus:
"5. Clause (1) of part VIII does not enable the petitioner to seek for extension of lease. Clause (7) of part IX of the lease on which very strong reliance is placed by Sri Achar reads thus:
FAILURE TO FULFIL THE TERMS OF LEASE DUE TO "FORCE MAJEURE":- Failure on the part of the lessee/lessees to fulfil any of the terms and conditions of this clause against the lessee/lessees or be deemed a breach of this lease, in so far as such failure is considered by the State Government to arise from 'Force majeure', and if through 'Force majeure' the fulfilment by the lessee/ lessees of any of the terms and conditions of this Lease be delayed, the period of such delay shall be added to the period fixed by this lease. In this clause, the expression "force majeure" means Act of God, war, insurrection, riot, civil commotion, strike, earth-quake, tide, storm, tidal wave, flood, lightning, explosion, fire, earth-quake and any other happening which the lessee lessees could not reasonably prevent or control."
The failure to perform the terms of the lease by the lessee must arise out of 'Force Majeure' as defined in this clause to be so decided by Government. Any prevention to operate the leased area by reason of an order made by an authority or Court, which is later considered by another superior authority or Court as illegal and unwarranted cannot be said to be arise out of 'force majeure' and more so within the meaning of that term that is defined in this clause. The residuary words ' any other happening which the lessee/lessees could not reasonably prevent or control' occurring in this clause must be read as analoguous to the matters earlier referred in that clause and cannot be read as extending to a fact situation as in the present case.
6. On any legal principle, it is difficult to hold that the petitioner is entitled for extension of lease and the reliefs sought in this Writ Petition. In these circumstances, this Writ Petition is liable to be rejected. I, therefore, reject this Writ Petition. But in the circumstances of the case, I direct the parties to bear their own costs."
4. Sri B.R.G.K. Achar, learned Counsel for the petitioner submits that as the action of respondents 1 and 2 In determining the lease was arbitrary, the petitioner was entitled to operate the quarry for the period during which he was prevented from operating viz., for a period of 1 year 9 months and 16 days; that in case of arbitrary action the remedy by way of damages is not an appropriate or adequate remedy; that the matter is not purely one of contract, inasmuch as it is covered by the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as the 'Act') and the Rules. Therefore, there is no justification to deny the relief sought for by the petitioner either on the ground that it is not covered by Clause 1 of part VIII and Clause 7 of part IX of the lease deed, or on the ground that the proper remedy is to seek damages.
5. On the contrary it is contended on behalf of the respondents that the determination of the lease was not an act of Force Majeure nor it was an act similar to that, therefore, it did not fall under Clause 7 of part IX of the lease deed; that it did not also fall under Clause 1 of part VIII of the lease deed because what was assured under that clause was only the enjoyment of the lease uninterruptedly for the period for which it was granted; that the case is one of pure breach of contract and the one in which the damages are assessable; therefore, it is not a case for granting extension of the lease; that the extension of the lease for a period of 1 year 9 months and 16 days amounts to substitution of the lease; that leasing of black granite is not permissible from 13-9-1979 as It is reserved for State exploitation under Rule 3A of the Rules introduced with effect from 13th September 1979 and that Rule has been held valid by this Court in the Writ Petition. Hence, it is submitted on behalf of the respondents that the proper remedy for the petitioner would have been to seek damages in an appropriate Civil Court.
6. In the light of the aforesaid contentions the point that arises for consideration in this appeal is as to whether the petitioner is entitled to extension of lease for a period of 1 year 9 months 16 days in view of the fact that he was not allowed to operate the lease during that period.
7. Though the lease is granted under the provisions of the Rules and the Act, no provision of the Act or the Rules is brought to our notice which enables the petitioner to seek extension of and compels the respondents to extend, the lease after the expiry of the lease period, equivalent to the period during which the lessee was not permitted to operate the quarry. Therefore, the case wholly depends upon the terms of the lease and the provisions of the Specific Relief Act. As far as the terms of the lease are concerned Clause 1 of part VIII and Clause 7 of part IX are as follows:
"PART VIII The Covenants of the State Government.
1. Lessee may hold and enjoy rights quietly:-The lessee/lessees paying the rents and royalties hereby reserved and observing and performing all the covenants and agreements herein contained and on the part of the lessee/ lessees to be observed and performed shall and may quietly hold and enjoy the rights and premises hereby demised for and during the term hereby granted without any unlawful interruption from or by the State Government, or any person rightfully claiming under it."
PART IX
7. Failure to fulfil the terms of lease due to "force mazeure". - Failure on the part of the lessee/lessees to fulfil any of the terms and conditions of this clause against the lessee/lessees or be deemed a breach of this Lease in so far as such failure is considered by the State Government to arise from "force mazeure", and if through "force mazeure" the fulfilment by the lessee/lessees of any of the terms and conditions of this Lease be delayed, the period of such delay shall be added to the period fixed by this Lease. In this clause, the expression "force majeure" means act of God, war, insurrection, riot, civil commotion, strike, earth-quake, tide, storm, tidal wave, flood, lightening, explosion, fire, earth-quake and any other happening which the lessee/lessees could not reasonably prevent or control."
The aforesaid Clause 1 of part VIII only ensures the lessee the enjoyment of the lease for the period for which it is granted without any unlawful interruption from or by the State Government or any person rightfully claiming under it, if the lessee pays rents and Royalties and observes and performs all the covenants of the agreement. This does not mean that in the event of determination of the lease before the expiry of the lease period on a ground which is subsequently found by the Court as unsustainable, the lessee would be entitled, as of right to an extension of the lease equivalent to the period during which the lessee was prevented from operating the quarry. Such an act cannot be construed as amounting to unlawful interruption. At the most in the light of the aforesaid Clause 1 of part VIII of the lease deed it might enable the lessee to claim damages for the loss caused to him during the period he was prevented from operating the quarry as the lessee under the aforesaid clause was assured of quiet and uninterrupted enjoyment of the lease for the period for which the quarry was leased.
8. Clause 7 of part IX only enables the lessee to seek extension of the lease in the case of failure on the part of the lessee to fulfil any of the terms and conditions of the lease due to force majeure. The learned Single Judge has held that the facts of the case do not bring it within the scope of Clause of part IX of the lease. Clause 7 relates to failure to fulfil the terms of the lease by the lessee due to force majeure. The termination of the lease due to non-performance of the conditions of the lease either on valid ground or invalid ground cannot be held to bring the case under Clause 7 of part IX of the lease deed because it is due to the act of the parties and not due to the act of force majeure. The clause further elucidates the expression "Force Majeure" and states that it means an act of God, war, insurrection, riot, civil commotion, strike, earth-quake, tide storm, tidal wave, flood, lightning, explosion, fire, earthquake and any other happening which the lessee could not reasonably prevent or control. Hence, the conclusion reached by the learned Single Judge that Clause 7 of part IX of the lease is not attracted to the facts of the case wherein the lease is terminated by the act of one of the parties and not arising from "Force Majeure", is correct and we agree with that view.
9. Learned Counsel for the appellant, placed reliance on a decision of this Court in BALAKRISHNA v. STATE OF KARNATAKA AND ANR., WP 10772 of 1988 DD 10-3-1989. and also on a decision of a Division Bench dated 21st September 1989 in Writ Appeal No. 1682/1989 confirming the aforesaid decision in Writ Petition 10772/1988 State of Karnataka v. Balakrishna. The validity of the action regarding determination of the lease was challenged in Writ Petition No. 7938/1986. There was no interim order passed in favour of the petitioner therein and the Writ Petition was disposed of on 27th May 1986. Thereafter the Writ Petition 10772/1988 was filed for a direction to extend the lease for the period for which the operation of the lease was suspended or the lessee was forced to stop operation of the quarry for no fault of him. The learned Single Judge held as follows:
"The contention in this Writ Petition was, that the petitioner was entitled to an extension of lease to an extent of the period of mining was suspended or forced to stop for no fault of his. As has already indicated, after cancellation of the lease in his favour on 5-2-1985 till the disposal of the Writ Petition, the petitioner could not have possibly worked on account of the cancellation and it was only after restoration of lease on 14-7-1986 the petitioner was able to resume mining. He has been prevented from working for the above period for no fault of his. The petitioner was prevented from working by cancelling the lease, raising an unjust demand which was quashed by this Court. Hence, he is entitled to the extension of the said period."
The learned Single Judge In that Writ Petition also took a view that such a case was not covered by Clause 7 of part IX of the lease deed. The State of Karnataka and the Deputy Director of Mines went up in appeal against the aforesaid decision of the learned Single Judge in W.A. 1682/1989. The Writ Appeal was dismissed at the stage of admission/preliminary hearing. The order passed by the Division Bench reads thus:
"We respectfully agree with the view taken by the learned Single Judge that as the respondent was prevented from quarrying granite from 5-2-1985 upto 14-7-1986 on account of the order passed by the appellants, the period of lease should be extended to the extent the respondent was deprived of from quarrying the mineral.
2. In the circumstances, we find no merit in this appeal. In view of this, it is unnecessary to consider T.A.I. Therefore, it is dismissed. Consequently, the Writ Appeal also is dismissed."
It appears to us that the aforesaid decisions either of the learned Single Judge or of the Division Bench cannot be held to constitute a binding precedent as the same are given per-incuriam. The attention of the Court had not been drawn to the relevant law having a bearing on the subject. A decision of the Court is not a binding precedent if given per incuriam i.e., without the Court's attention having been drawn to the relevant authorities or statutes. As per the provisions contained in the Specific Relief Act, where the loss is assessable the damages is the only remedy. Further, the subsequent development in law as to preserving the black granite for State exploitation only had not been noticed. Any decision rendered without taking into consideration the relevant law cannot constitute as an authority for the legal principle embodied in it. Therefore, we are of the view that the aforesaid decisions cannot be held to lay down the law so as to constitute a binding precedent. After the lease is executed the parties are governed by the terms of the lease and the provisions of the Act and the Rules governing the lease. If any breach of the conditions of the lease takes place or the lease is terminated unless the Act or the Rules specifically provide to meet such a situation the matter will be governed by the common law. As in the instant case there is no provision either in the Act or in the Rules enabling the lessee and directing the lessor to extend the lease in a case where the lessee is prevented from operating the quarry by reason of termination of the lease which is subsequently found to be wrong. Further it is a case in which it cannot be held that the loss is not assessable. Therefore it squarely falls under the provisions of the Specific Relief Act. As such claiming of damages is the only remedy in a case like this. In addition to this in the absence of any provision contained in the Act and the Rules if the lease has to be extended it amounts to substitution of the lease which the Court cannot do. Further on introduction of Rule 3A of the Rules black granite is reserved for State exploitation with effect from 13th September 1979. The granite quarry in question is of black granite. Therefore an extension of lease is neither possible nor permissible on the expiry of the lease period i.e., on 15-2-1933. It is also not possible to determine the damages in this Writ Petition because the Writ Petition is not framed seeking such a relief. The issues relating to damages cannot be settled without proper pleadings and evidence in terms of Section 73 of the Contract Act. The damages are to be determined with reference to the rates that were prevailing during the period during which the petitioner was prevented from operating the quarry and not with reference to the rates prevailing as on today. In addition to this, the quantity of the minor mineral in question, which the petitioner would have removed during the period he was prevented from operating the quarry has to be proved by cogent evidence. These matters cannot satisfactorily be examined and determined in a petition under Act 226 and 227 of the Constitution.
10. Further, the petitioner filed the present Writ Petition on 7-3-1983 and the same was dismissed on 13th June 1983. He had enough time to seek damages in a competent Civil Court, but he did not avail that remedy. Under these circumstances as on today the remedy is barred by time, immediately, on the dismissal of the Writ Petition the petitioner ought to have approached the competent Civil Court to seek damages which he has failed to do. Mere filing of Writ Appeal did not operate as a bar for, and it also did not prevent him from, filing a suit for damages. Therefore failure on the part of the petitioner to seek appropriate relief in a competent Civil Court cannot itself be pleaded as a merit because of the pendency of the Writ Appeal for a long period. Hence, the submission that the damages should be awarded cannot be accepted.
For the reasons stated above the point that is raised for determination is answered in the negative. Consequently, the Writ Appeal fails and the same is dismissed.