Madras High Court
Moon Rock And Marble Company ... vs The State Of Tamil Nadu And Ors. on 13 January, 1995
Equivalent citations: (1995)1MLJ572
ORDER Srinivasan, J.
1. The prayer in the writ petition is for issue of a writ of mandamus, directing the respondents not to interfere with the petitioner's right to carry on quarrying in the demised quarry measuring 30-63 acres in S. No. 446, Alapuram village, Harur Taluk in Dharmapuri District and removing the quarried stones outside till the lease period expires on 2.2.1987.
2. On the face of it, the prayer has worked itself out in 1987 and nothing survives in the writ petition. Hence, it has become infructuous.
3. However, the petitioner has come forward with a miscellaneous petition (W.M.P. No. 18671 of 1994) for amending the prayer in the writ petition in the following terms:
To issue a writ of mandamus directing the respondents to permit the writ petitioner to commence and execute the quarrying works subject to the terms and conditions of the lease granted and agreement executed from the date of agreement to a period of 6 years and 6 months and 13 days, which period the petitioner was prevented from enjoying his rights by carrying out the quarrying operations in the demised quarry measuring an extent of 30-63 acres in S. No. 446 Alapuram Village, Harur Taluk, Dharmapuri District.
4. The facts set out in the affidavit filed in support of the petition for amendment are not admitted and a detailed counter-affidavit has been filed by the 3rd respondent. As the facts are in dispute, it is not for this Court, sitting under Article 226 of the Constitution, to decide disputed questions of fact, particularly, when it will require detailed evidence, including oral evidence, for establishing the case of either party. I am not inclined to widen the scope of the writ petition by granting the amendment and allowing the parties to adduce evidence, oral and documentary, in this proceeding.
5. The petitioner has got a remedy by filing appropriate proceeding for damages in the proper forum. If really, as alleged by him, he has been prevented from enjoying his rights under the lease he can certainly claim damages against the authorities concerned. In these circumstances, I do not think it proper to grant the amendment and enlarge the scope of the writ petition.
6. Learned senior counsel for the petitioner places reliance on a judgment of the Mysore High Court in Dassappa v. The Additional District Magistrate and Deputy Commissioner and Ors. . Reliance is placed on the following passage in the judgment:
On these grounds, he contended that this order should be set aside. I must confess that there is considerable force in the said contentions urged before us on the merits of the order passed by the District Magistrate. It however seems to us that in view of the fact that the order has already spent its force no useful purpose would be served by giving any decision on the said contentions. This court may have power as observed by their Lordships in Siddagowda v. Kullegowda , to quash an order although it has spent its force but whether or not this Court would exercise such power would depend on the circumstances of the case. We do not feel justified in the circumstances of this case in making an order quashing the order of the Additional District Magistrate of Tumkur dated 7th November, 1958.
Even on a reading of it, it does not help the petitioner in any manner in this case. The court has rightly pointed out that exercising of power would depend on the facts and circumstances of each case.
7. Learned senior counsel invited my attention to the judgment of the Supreme Court in Rasbihari Panda, etc. v. State of Orissa . In para 22, the Supreme Court said, During the pendency of these proceedings the entire year for which the contracts were given has expired. The persons to whom the contracts were given are not before us, and we cannot declare the contracts which had been entered into by the Government for the sale of Kendu leaves for the year 1968 unlawful in these proceedings. Counsel for the appellants agrees that it would be sufficient if it be directed that the tenders for purchase of Kendu leaves be invited by the Government in the next season from all persons interested in the trade. We trust that in accepting tenders, the State Government will act in the interest of the general public and not of any class of traders so that in the next season the State may get the entire benefit of the monopoly in the trade in Kendu leaves and no disproportionate share thereof may be diverted to any private agency. Subject to these observations we make no further order in the petitions out of which these appeals arise.
Learned Senior Counsel made an inferential argument by stating that in that case the Supreme Court did not give the relief because the parties in whose favour contracts were given were not impleaded in the appeals and the Supreme Court did not dismiss the appeals on the ground that it had become infructuous. Such an argument is not acceptable. The judgment has to be understood in the light of the facts of the case and it is only the proposition of law which is laid down by the court that has to be taken into account. It cannot be said that had the facts been different, the Supreme Court would have issued some other order and that should be taken as the position in law. What is expressed in the judgment should be considered as binding proposition of law and what is not expressed cannot be taken into account. Hence, that case does not help the petitioner herein.
8. It is next contended that in Assam Sillimanite Limited v. Union of India , the court granted relief by appointing an arbitrator to decide the question of damages. The reasoning of the Court is found in the following passage:
The next question regarding the relief to be granted to the petitioner. Shri Datar submits that in the writ petition the only prayer made by the petitioners is for the quashing of the order dated 7.12.1972 and that no further claim has been made in the writ petition. He submits that if the petitioners are aggrieved because of the premature termination of the leases, it is open to them to file a suit or take other appropriate remedies for obtaining compensation in respect of the unlawful termination. We do not think that this is a fair course to be adopted in this case. The writ petition was filed by the petitioner company as early as in February, 1973 and has been pending in this Court for about 17 years. It is true that the petitioner could have filed a suit for the same purpose with a prayer for additional relief by way of compensation or damages. But we do not think that it should now be asked to go back to file a suit for compensation or damages which may be barred by limitation. After the lapse of such a long time, in our opinion, the proper course is to adopt some method for deciding the quantum of relief that could be granted to the petitioner by way of compensation and damages which can at once be simple and expeditious and which will avoid further unnecessary litigation. We think that the request of the learned Counsel that the matter may be referred to arbitration is a fair one and indeed this course is also not seriously resisted by the respondents. The short question that remains to be decided is whether the petitioners have suffered any damages as a result of the premature termination of the three leases in their favour either in the shape of loss of profits for the unexpired periods of the leases or in any other material respect. We, however, direct that, having regard to the circumstances of the case, the compensation/ damages should be restricted to a period of five years from the date of termination of the leases or up to the date of expiry of the original lease deeds referred to above whichever is less and not for the entire unexpired period of all the leases. We refer this issue to arbitration.
The Supreme Court has referred to the relevant facts and pointed out that what remained to be considered was only the quantum of damages and therefore thought it fit to refer the matter to arbitration. The position in this case is entirely different and without deciding the facts in dispute, it is not possible to grant any relief to the petitioner herein. The proper forum for deciding such questions of fact is only a civil court and not Article 226 of the Constitution of India.
9. Ultimately, learned Counsel for the petitioner places reliance on the judgment of this Court in the case of S. Palaniyandi and Anr. v. The District Collector and Anr., Salem 1994 Writ L.R. 719. On the facts of the case, the learned Judge found that the petitioners were entitled to quarry, remove and transport rough stones in big sizes or blocks also in accordance with law on the basis of the leases granted to them and they were entitled to quarry for the full actual duration of lease from the date of registration of the lease agreements, notwithstanding the period mentioned in the lease agreements. The decision turned entirely on the facts of the case and cannot govern this case. The facts are in dispute and the petitioner cannot claim any relief unless and until the facts in dispute are established in a manner known to law.
10. In the result, the writ petition is dismissed, as infructuous. Consequently, W.M.P. Nos. 18671 and 18672 of 1994 are also dismissed. No costs.