Madras High Court
K. Dhanasekar vs The District Collector on 24 September, 2014
Author: B. Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24-09-2014 Coram THE HONOURABLE MR. JUSTICE B.RAJENDRAN W.P. No. 10562 of 2013 and M.P. No. 1 of 2013 K. Dhanasekar .. Petitioner Versus The District Collector Kancheepuram District Kancheepuram .. Respondent Petition filed under Article 226 of The Constitution of India praying for issuing a Writ of Mandamus directing the respondent to permit the petitioner to quarry stone from the leasehold land bearing Survey No.68 part (Quarry No.2) admeasuring 4.00.0 Hectares in Edayankodumanthangal Village, Chengalpat Taluk, Kancheepuram District for a period of 47 days from the date of issue of transport permit after 17.04.2013 i.e., the date of expiry of lease. For Petitioner : Mr. V. Sanjeevi For Respondent : Mr. K.V. Dhanapalan Additional Government Pleader ORDER
The petitioner seeks for issuance of a Mandamus to direct the respondent to permit him to carry out stone quarrying for a period of 47 days, being the period during which he could not carry out the quarrying operations.
2. The petitioner was granted lease for a period of 10 years under Rule 8 (1) of the Tamil Nadu Minor Mineral Concession Rules, as per District Gazzette No.31 dated 19.12.2002. The petitioner also paid the entire lease amount of Rs.65 lakhs. As per the proceedings dated 09.01.2003, the petitioner was permitted to carry out the quarrying operation for a period of ten years commencing from 18.04.2003 to 17.04.2013. The petitioner also executed a lease agreement. While the petitioner was carrying out the quarrying operation, on 27.07.2008, certain third parties in Chettipunniyam Village indulged in criminal activities and dug the road by using JCB machines, thereby prevented the vehicles of the petitioner from entering into the lease hold area. Notwithstanding the same, the third parties have also threatened the workers, who were quarrying in the site, with the result, the quarrying operations were completely stopped. The petitioner has therefore given a complaint to the Maraimalai Nagar Police Station based on which a case in Crime No. 470 of 2008 came to be registered for the offences punishable under Sections 147, 148, 341, 385, 481 and 506 (ii) of IPC read with Sections 2 and 3 of Tamil Nadu Public Property (Prevention of Damages and Loss) Act. The petitioner also made a representation dated 31.07.2008 to the respondent herein requesting to take appropriate action against the third parties so as to enable him to carry on the quarrying operations. The respondent, in his proceedings dated 08.08.2008, instructed the Superintendent of Police, Kancheepuram to look into the matter by taking action against the persons concerned so as to enable the petitioner to carry on the quarrying operation. The Revenue Divisional Officer also, in his proceedings dated 09.08.2008 informed the Inspector of Police, Maraimalai Nagar Police Station that right to use the panchayat road cannot be interfered with by any one or to stop the vehicles plying there carrying minerals from government approved quarrying site. In and by the said letter dated 09.08.2008, the Revenue Divisional Officer also directed the Inspector of Police, Maraimalai Nagar to take appropriate action against the offenders. Subsequently, on 04.09.2008, a peace committee meeting was held which was attended by the Sub-Collector, Chengalpattu along with the officials from the Directorate of Geology and Mining and also the Police Authorities. In the meeting, it was resolved that the petitioner must be permitted to carry out the quarrying operation without any disturbance. Accordingly, the petitioner resumed the quarrying operation on 05.09.2008. Thus, from 28.07.2008 to 04.09.2008, for about 47 days, the petitioner could not carry out the quarrying operation, which, according to the petitioner, cannot be attributed due to his fault, however, he was unresonably prevented from carrying out the quarrying operation.
3. The learned counsel for the petitioner would contend that admittedly, out of the 10 years period, the petitioner was reasonably prevented from carrying out the quarrying operations for 47 days and only after the intervention by the respondent and other officials, he could resume the quarrying operation from 05.09.2008. The petitioner also invited the attention of the respondent by sending a representation dated 03.04.2013 requesting to permit him to continue the quarrying operation for 47 days, but so far no order has been passed. According to the counsel for the petitioner, the petitioner had invested huge amount in the quarrying operation and in view of the fact that he could not carry out the quarrying operation for 47 days, he sustained heavy loss. Therefore, the respondent is duty bound to compensate the petitioner by permitting him to carry out the quarrying operation in the lease hold area for the remaining 47 days and he prayed for allowing the writ petition.
4. On the other hand, the learned Additional Government Pleader, appearing for the respondent, on written instructions from the respondent, would contend that the petitioner had enjoyed the full period of lease for 10 years. Even though the petitioner would contend that he was prevented from carrying out the quarrying operations for 47 days from 28.07.2008 to 04.09.2008, he did not, during the course of the lease period, seek to extend the period of lease by 47 days but continued the quarrying operation. Rather, only after completion of the lease period of ten years, the petitioner sent a representation for extension of the lease period. According to the learned Additional Government Pleader, there is no provision in the Tamil Nadu Minor Mineral Concession Rules for extension of lease period, as prayed for by the petitioner. Further, the respondent cannot be held responsible for the period during which the petitioner could not carry out the quarrying operation, which has emanated out of a dispute between the petitioner and some third parties. Therefore, according to the learned Additional Government Pleader, the relief sought for by the petitioner in this writ petition need not be granted and prayed for dismissal of the writ petition.
5. I heard the learned counsel for the petitioner as well as the learned Additional Government Pleader appearing for the respondent. It is not in dispute that the petitioner was granted lease for a period of 10 years commencing from 18.04.2003 to 17.04.2013. The petitioner also completed the lease period except 47 days, during which period, he was prevented from carrying out the quarrying operation. According to the petitioner, the reason for not quarrying the lease during the period from 28.07.2008 to 04.09.2008 cannot be attributable on his part and he was reasonably prevented from carrying out the quarrying operation. It is also an admitted fact that at the intervention of the respondent and other officials, the petitioner resumed the quarrying operation on 05.09.2008. Therefore, after completion of the lease period of 10 years, the petitioner sought for extending the lease period for 47 days, but it was not considered by the respondent on the ground that there is no provision in the Tamil Nadu Minor Mineral Concession Rules for granting such extension.
6. With this backdrop, the question that falls for consideration in this writ petition is whether the petitioner is entitled for extension of lease for 47 days, during which period, he was prevented from carrying on the quarrying operations by the local Villagers.
7. Under law, if it is shown that the petitioner was prevented from carrying out the quarrying operation due to a reasonable cause and it is not attributable due to his part, then this Court, in exercise of power under Article 226 of The Constitution of India, can issue appropriate direction to the respondent. Or in the alternative, the petitioner is entitled for payment of compensation for the period during which he could not utilise the lease hold land. According to the respondents, the petitioner did not seek for extension during the subsistence of lease and therefore he is estopped from making any claim for extension of lease thereafter. In this context, the learned counsel for the petitioner relied on the decision of the Division Bench of this Court in the case of The District Collector, Namakkal District vs. K. Anbarasi) reported in (2011 (1) CWC 673) wherein it was held that even though there is no provision under which an extension can be granted, if it is shown that the petitioner could not carry on the quarrying operation due to reasonable cause and not due to his fault, directions can be issued by this Court and it would not amount to re-writing the terms of the lease conditions. In Para No.27 of this decision, the Division Bench held as follows:-
27. In the writ petition in W.P.No.5734 of 2010, the petitioner was the highest bidder in a tender conducted by the District Collector, Salem in respect of a stone quarry lease in S.F.No.9, P.N.Patty Village, Mettur Taluk, Salem District. The petitioner paid the lease amount of Rs.2,51,000/- and Security Deposit of Rs.25,100/- and lease deed was executed on 09.07.2005 for a period of five years from 09.07.2005 to 08.07.2010. Based on a complaint received from a third party, official respondents in the writ petition directed the petitioner to stop quarrying operation. Subsequently, test audits were conducted by the Department of Mining Engineering, Anna University, Chennai and the report of the expert appears to have revealed that the allegation in the complaint made by the third party is not tenable. Thereupon, the writ petitioner was permitted to commence quarrying operation and in that process for a period of 18 months and 18 days (i.e.) from 15.12.2006 to 03.07.2008, the writ petitioner was unable to quarry on account of the order of suspension passed by the official respondent. Thus the case of the writ petitioner in W.P.No.5734 of 2010, is also identical to that of the case of the respondents in the writ appeals. The case of T.Paulraj vs. The District Collector, Kanyakumari District @ Nagercoil, referred supra is couched entirely on different set of facts. The petitioner in the said case sought for a direction to extend the period of lease as there was a delay in confirmation of the auction. In such circumstances, this Court following the earlier decisions held that in the absence of any rules, it is not possible to grant any relief to the appellant therein. However, the case before us is different as indicated above. Considering the peculiar facts and circumstances of the case, we may at this stage observe that by permitting the respondent/writ petitioner to quarry for the unutilized period cannot be stated to be rewriting the terms of the lease.
8. In this case, the quarrying operations carried on by the petitioner was stopped due to the indulgence of third parties in Chettipunniyam Village. Subsequently, the petitioner has given a complaint to the respondent and other authorities, at whose instance, the petitioner was permitted to resume the quarrying operation. Therefore, in such circumstances, even though there is no provision for extension of lease, still the respondent can consider extending the lease in favour of the petitioner.
9. Similarly, in the order dated 05.09.2013 passed by this Court in WP No. 13028 of 2013 (K.A. Gunasekaran vs. The District Collector, Krishnagiri District), this Court, after referring to the decision of the Division Bench of this Court in The District Collector, Namakkal District vs. K. Anbarasi mentioned supra, this Court held that the petiitoner therein is entitled for a direction to permit him to carry out the quarrying operations for the non-operative period of three years and ten months. In Para No.28 this Court passed the below mentioned order:-
28. A prerogative writ, like, a Mandamus cannot be demanded ex debito justiatiae but it can be issued by the Court in its discretion, for which, it must be shown that, there is a non-discretionary legal duty upon the authority against whom, the relief is sought for and that the person approaching the High Court under Article 226 of The Constitution of India, has to prove that he has a legal right to be enforced against the authority, for the failure of performance of a legal or statutory duty, by the authority against whom, the relief is sought for.
10. As held by this Court in the aforesaid case, if there is infringment of a legal or statutory right, this Court can issue a Mandamus. In this case, the petitioner was reasonably prevented from quarrying the lease hold lands. Thus, the petitioner has a legal right to be asserted to enforce his lease hold right to the extent to which he was prevented from quarrying the lands. Such a right is a legal right and for enforcement of the same, he has filed the present writ petition.
11. In the Judgment dated 26.04.2012 made in W.A. Nos. 2770 of 2011 and 542 of 2012, the Division Bench of this Court considered a similar claim made by a leaseholder. The said writ appeals have been filed by the Government against the order passed by the learned single Judge of this Court. While dismissing the writ appeals, the Division Bench held that when the period during which the writ petitioner was not permitted to quarry, his request cannot be rejected on the ground that the Rules did not provide for extension of lease period or any reason whatsoever. Ultimately, the Division Bench issued appropriate directions for resuming the lease by the writ petitioner therein.
12. In this case, as mentioned above, the petitioner could not carry out the quarrying operation due to intervention of the local villagers and his quarrying operations came to a stand still. The petitioner also given complaint to the local police and also the respondent praying to facilitate him to resume his work. Thereafter, a peace committee meeting was conducted and ultimately at the intervention of the respondent and other officials, on 05.09.2008, the petitioner resumed the quarrying operations. In the interregnum, the petitioner could not carry out the quarrying operation from 28.07.2008 to 04.09.2008 for 47 days. Thus, the period during which the petitioner could not carry out the quarrying operations cannot be put against him to deny him the lease hold right.
13. The respondent opposes the writ petition mainly on the ground that the petitoiner, after completion of his lease period, has sent a representation and such representation could not be considered in view of the fact that there is no provision for extension of lease in the Tamil Nadu Minor Mineral Concession Rules. As mentioned by this Court in the decisions cited supra, even though there is no provision for extension of lease, having regard to the fact that the petitioner was prevented from carrying out the quarrying operations for 47 days, which cannot be attributable due to his part, this Court can issue a direction to the respondents to consider his claim for extension of lease for 47 days. The petitioner also sent a representation dated 03.04.2013 to the respondent seeking extension of lease for 47 days, but so far, no order has been passed.
14. Though the prayer in this writ petition is to direct the respondents to permit the petitioner to carry out the quarrying operations for 47 days, it is to be stated that when the writ petition was filed by the petitioner on 12.04.2013, the lease period was very much in existence and it came to an end on 17.04.2013. Now, the lease period has come to an end and therefore, it has become necessary that the respondent has to issue licence to the petitioner for continuing the lease. It is for the respondent to consider issuing such licence taking note of the attendant facts and circumstances on the basis of the representation dated 03.04.2013 submitted by the petitioner. In the above facts and circumstances, this Court directs the respondent to consider the representation dated 03.04.2013 of the petitioner seeking extension of lease period for 47 days, examine whether the petitioner is entitled for such extension of lease and pass orders thereon on merits and in accordance with law within a period of two months from the date of receipt of a copy of this order. The writ petition is disposed of in the above terms. No costs. Consequently, connected miscellaneous petition is closed.
24-09-2014 rsh Index : Yes / No Internet : Yes / No To The District Collector Kancheepuram District Kancheepuram B. RAJENDRAN, J rsh WP No. 10562 of 2013 24-09-2014