Madras High Court
State Of Tamil Nadu vs S. Thangapandiyan on 26 April, 2012
Author: T.S. Sivagnanam
Bench: M.Y. Eqbal, T.S. Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 26..04..2012 C O R A M The Honourable Mr. M.Y. Eqbal, Chief Justice and The Honourable Mr. Justice T.S. Sivagnanam Writ Appeal No.542 of 2012 and Writ Appeal No.2470 of 2011 W.A. No.542 of 2012 : 1. State of Tamil Nadu, rep. by its Secretary to Government, Industries Department, Fort St. George, Chennai-9. 2. Commissioner of Geology and Mining, Guindy, Chennai-32. 3. The District Collector, Kanchipuram District, Kanchipuram. .. Appellants versus S. Thangapandiyan .. Respondent W.A. No.2470 of 2011 : 1. The Commissioner, Geology and Mining, Guindy, Chennai-32. 2. The Collector, Villupuram District, Villupuram. .. Appellants versus C.R. Murugan .. Respondent - - - - - Prayer : Writ Appeals filed under Clause 15 of the Letters Patent against the orders of the learned single Judges of this Court - W.A. No.542 of 2012 against the order dated 22.7.2011 passed in W.P. No.23700 of 2010 and W.A. No.2470 of 2011 against the order dated 21.9.2011 passed in W.P. No.26358 of 2010. - - - - - For Appellants : Mr. T.N. Rajagopalan, A.G.P. For Respondents : Mr. A.L. Somayaji, Senior Counsel for Mr. R.C. Paul Kanagaraj (in W.A. No.542 of 2012) Mr. S.G. Poinathan (in W.A. No.2470 of 2011) - - - - - J U D G M E N T
( The Honourable the Chief Justice & T.S. Sivagnanam ) The State has preferred these appeals against the orders dated 22.7.2011 and 21.9.2011 passed in W.P. Nos.23700 of 2010 and 26358 of 2010 respectively.
2. In W.P. No.23700 of 2010, the petitioner sought a direction to the District Collector, Kancheepuram to grant him permission to carry on quarrying operations in respect of the Stone Quarry No.2 situated in Survey No.25/2B over an extent of 2.50.0 hectares in Thirusoolam Village, Tambaram Taluk, Kancheepuram District for a period of 18 months, for which the quarrying was suspended.
3. In W.P. No.26358 of 2010, the prayer was for a direction to the District Collector, Villupuram to grant quarrying lease for a further period of ten months in respect of the rough stone quarry measuring an extent of 1.62.0 hectares comprised in Survey No.49 part in the Government Poromboke land in Senalur Village, Tindivanam Taluk, Villupuram District.
4. The petitioners were successful bidders in the auctions conducted by the respondents for quarrying of stone in Kancheepuram and Villupuram Districts respectively. They were initially granted lease for a period of five years after having paid the lease amount for the respective periods.
5. It is the case of the petitioner in W.P. No.23700 of 2010 that during the currency of the lease, false complaints were levelled against him of causing nuisance while carrying out the quarrying operations. The petitioner preferred a complaint before the authorities concerned for granting police protection and carried on the quarrying operations under police protection. As his further prayer for police protection was not addressed, he preferred a writ petition before this Court in W.P. No.22025 of 2005 and this Court by order dated 7.7.2005, directed the District Collector to take appropriate action on the petitioner's complaint. In view of the complaint preferred by the petitioner, proceedings were initiated under Section 145 of the Criminal Procedure Code at the instance of the police. The Revenue Divisional Officer by his proceedings dated 16.9.2005 confirmed the petitioner's possession and recommended for appropriate action against the culprits and pursuant to this order, the petitioner gave a representation to the authorities concerned to take necessary action enabling him to carry on the quarrying operations. Since no action was taken, he filed W.P. No.32391 of 2005 seeking police protection, but it was dismissed. As against the same, he preferred W.A. No.2330 of 2005, wherein the Division Bench by order dated 3.1.2006 permitted the petitioner to run the quarry under police protection, pending disposal of Crl. R.C. No.1274 of 2005 filed by third party against the order of the R.D.O. The petitioner resumed quarrying pursuant to the order of the Division Bench under police protection. In the meanwhile, the above criminal revision was allowed by this Court on the ground of procedural irregularities committed by the R.D.O. and consequently, the quarrying was stopped.
6. The petitioner thereafter filed W.P. No.3326 of 2006, wherein this Court by order dated 7.2.2006 directed the R.D.O. to expedite the proceedings and accordingly, the R.D.O. passed an order in favour of the petitioner on 20.5.2006. The petitioner subsequently made a representation to the police to give police protection for running the quarry. Since no action was taken, he filed W.P. No.24444 of 2006 seeking police protection, which was granted by order dated 24.11.2006. Pursuant to that, the District Collector issued transport permit and the quarrying operations were again resumed on 22.12.2006. While so, another Crl. R.C. No.659 of 2006 filed by the third party against the subsequent order of the R.D.O. was allowed and the matter was remanded for fresh enquiry. As a result, the District Collector refused to issue the transport permit after 25.1.2007. The petitioner also filed W.P. No.4049 of 2007 and obtained an interim direction on 5.2.2007 for issuance of bulk transport permit and pursuant to that order, the petitioner was granted bulk transport permit on 9.2.2007 and he was carrying on the quarrying operations. However, after 19.6.2005, the petitioner was denied quarrying permission by the officials upto 8.2.2007, except the periods from 20.1.2006 to 1.2.2006 and 22.12.2006 to 25.1.2007, only at the instigation of third parties. On account of the frequent stoppage quarrying operations, the petitioner lost out on the quarrying operations for nearly 18 months during the lease period of five years. The petitioner approached the authorities for extension of the lease by 18 months during which he was not permitted to carry out the quarrying operations. However, the same was rejected as there was no provision for such an extension under the relevant rules and he preferred an appeal, which was also dismissed. He also preferred a second appeal, but since writ petitions had come to entertained by this Court for similar reliefs, the petitioner withdrew the second appeal. Citing the case of one K. Selvam of Karur who was granted permission pursuant to the order passed in W.P. No.27912 of 2008 on account of stoppage of quarrying operations for 16 months, against which no appeal had been filed by the State, the petitioner approached the learned single Judge by filing the writ petition on the above grounds.
7. The State opposed the writ petition contending that the writ petition itself is not maintainable since the petitioner had an alternative remedy of filing a second appeal as per Rule 36-C of the Tamil Nadu Minor Minerals Concession Rules, 1959 and instead of exhausting the alternative remedy, he is not entitled to invoke writ jurisdiction. It was stated that there was a specific bar under Rule 8(8) of the Rules for extending the period of lease after the expiry of the period specified in the lease deed and the specific bar under Rule 8(8)(ii) was not brought to the notice of the Division Bench which rendered the judgment in W.A. Nos.1018 and 1019 of 2010. Adverting to the specific terms and conditions in the lease deed, of which Clause 3 stated that in the event of any obstruction in the use and enjoyment of the rights under the lease, reasonable compensation for damages caused by any such obstruction shall be paid to the petitioner and in case of any difference, the matter has to be settled through arbitration, it was contended that since the petitioner claims that he was not able to carry on the quarrying operations due to the intervention of third parties, he has to resort to the arbitration clause available under the lease deed which is binding on him and the writ petition is not the remedy available to him.
8. The learned single Judge observed that the fact remains that the petitioner did not utilise the full period of lease as per the deed dated 4.12.2003. Though the lease was for the period from 4.12.2003 to 3.12.2008, the petitioner was prevented from carrying on with the quarrying operations owing to the intervention of third parties and initiation of proceedings under Section 145, Cr.P.C. and he had to face litigations in the form of writ petitions and criminal revisions for grant of transport permit for carrying out the quarrying operations. Thus, the petitioner was effectively prevented from quarrying for a total period of 18 months, i.e. from 19.6.2005 to 8.2.2007, which has not been disputed by the respondents. The learned single Judge pointed out that the petitioner even had to resort to police protection for carrying out the quarrying operations even during the currency of the legally granted lease in his favour and by no stretch of imagination the petitioner could be held responsible for non-utilization of the full lease period, which is also not the case of the respondents.
9. The learned single Judge, while rejecting the primary contention advanced on behalf of the respondent-State that there is a specific bar under Rule 8(8)(ii) of the Rules for extension of the lease after expiry of the lease period, observed that the petitioner was not seeking any extension beyond the initial lease period of five years, but he was only seeking permission to quarry for the unutilized period of 18 months and such relief could not be equated to extension of the lease period. The learned single Judge extensively quoted from the judgment rendered by this Bench in W.A. Nos.1018, 1019 of 2010 and W.P. No.5734 of 2010, wherein this Court had held that the State, having permitted a similarly situated person to quarry for an additional period of 16 months, although pursuant to a direction of this Court, cannot be allowed to adopt a different yardstick while deciding the case of the petitioner therein, and accepted the case of the petitioner in that case as denying the benefit to him would amount to discrimination. The learned single Judge held that the Government having granted similar relief to other persons, cannot apply a different yardstick to the petitioner herein who stands on the very same footing, and since non-utilisation of the entire lease period of five years was not due to any fault attributable on the part of the petitioner, but was only due to the circumstances pointed out earlier, denying that benefit to the petitioner would really amount to discrimination. Accordingly, the learned single Judge quashed the impugned order passed by the respondents and directed grant of permission to the petitioner to carry on the stone quarrying operations for the unutilized period of 18 months out of the five years' lease period. Aggrieved by the said order, the State has filed Writ Appeal No.542 of 2012.
10. Similarly, it is the case of the petitioner in W.P. No.26358 of 2010 that on account of an accident during the blasting operations at the quarry site, a show cause notice was issued to the petitioner to the effect that the transport permit issued to him was used to remove illicitly quarried materials and accordingly, the transport permit issued to the petitioner was stopped and he was prevented from quarrying from 7.8.2006 to 14.6.2007. It was later reported that the petitioner did not misuse the transport permit issued to him and that he was not connected with the illicit mining and he was, therefore, permitted to carry out the quarrying operations from 15.6.2007. As the petitioner had, in the interregnum, lost out on 10 precious months of quarrying, he prayed for a direction to equalize the lost period. His request was rejected by the respondent and the appeal preferred against such rejection was also rejected on the ground that the Rules did not provide for extension of lease period of any reason whatsoever and therefore, he filed the writ petition.
11. The learned single Judge observed that there was no dispute that the petitioner was not permitted to quarry from 7.8.2006 to 14.6.2007 at the instance of the respondents and non-operation of quarrying during the said period was not due to any fault on the part of the petitioner, but was only on account of the action taken by the respondents and therefore, in view of the judgment dated 17.3.2011 rendered by this Bench in W.A. Nos.1018, 1019 of 2010 and W.P. No.5734 of 2010, the petitioner was entitled to seek extension of the lease period. Accordingly, the learned single Judge allowed the writ petition and directed the respondents to grant lease for unutilized period of 10 months. Aggrieved by the said order, the State has come forward with Writ Appeal No.2470 of 2011.
12. In W.A. Nos.1018, 1019 and 5734 of 2010 (District Collector, Namakkal vs. Anbarasi & Others dated 17.3.2011), this Bench, after discussing and following the ratio decided by the Supreme Court in V. Karnal Durai vs. District Collector, (1999) 1 S.C.C. 475; S. Ganesan vs. District Collector, Tiruchirappalli, J.T. 2002 (3) S.C. 90; and Beg Raj Singh vs. State of U.P., (2003) 1 S.C.C. 726, observed as under :-
"26. As noticed in the case of Beg Raj Singh v. State of U.P. and Ors., 2003 (1) SCC 726, the Hon'ble Supreme Court granted the relief in favour of the lessee by observing that the sand mine could not be operated as it has been stopped because of the order of the State Government and such order having been unsustainable in accordance with stipulations contained in the mining lease, the Supreme Court granted the benefit to the lessee therein. The Supreme Court also took note of the fact that in the interregnum, no third party interest has been created. In the case of the Respondents also, the quarry could not be operated for a period of 283 days on account of the order of suspension. As noticed above, this Court by order 26.10.2005 in W.P. Nos. 34567 & 34568 of 2005, directed the Appellant to pass final orders on the show cause notice issued to the Respondents. Despite direction issued, no final orders were passed, which compelled the Respondents to approach this Court once again by way of the two writ petitions in W.P. Nos. 1207 & 1208 of 2006, challenging the order of suspension dated 11.07.2005, and in the said writ petition, an order of interim injunction was also granted. Therefore, it is clear that the Appellant did not avail the opportunity granted by this Court in its order dated 26.10.2005 and chose to remain dormant in the matter. Thus, as in the case of Bag Raj Singh, referred supra, the Respondent herein cannot be blamed for the period during which the quarry could not be operated.
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 v. 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.
28. The learned Senior counsel appearing for the Petitioner would submit that the action of the Appellant in not extending the benefit to the Respondent/writ Petitioner is discriminatory and violation of Article 14 of the Constitution of India, as the Appellant has implemented the direction issued by this Court in W.P. No. 27912 of 2008, and the Petitioner therein is also a similarly placed person as that of the Respondents/writ Petitioner. The Petitioner in W.P. No. 27912 of 2008, challenged an order passed by the District Collector, Salem and sought for a direction upon him to grant permission to carry on quarrying operation in the stone quarry for a period of 16 months during which the quarry was suspended. The Government resisted the prayer in the writ petition by raising certain grounds which have been raised by the Appellant herein in these appeals. The learned Single Judge by relying on the decision of the Hon'ble Supreme Court in Bag Raj Singh, and considering the facts of the case allowed the writ petition and directed the District Collector, Salem to grant permission to quarry for a period of 16 months. The said order and direction issued in the said writ petition being W.P. No. 27912 of 2008, was implemented by the District Collector, Salem by his proceedings dated 19.06.2009, and the Petitioner therein was permitted to quarry for a period of 16 months. Therefore, the Government cannot adopt different yardstick in respect of two cases, where the facts and circumstances are substantially similar."
13. In the light of the ratio decided by the Supreme Court and the Division Bench of this Court quoted hereinbefore, we are of the opinion that the reasonings given by the learned single Judge while allowing the writ petitions are fully justified and need no interference by this Court.
14. For the aforesaid reasons, there is no merit in either of these appeals and both the appeals are, therefore, dismissed. However, there shall be no order as to costs. Consequently, M.P. Nos.1 of 2012 and 1 of 2011 in the respective writ appeals are closed.
(M.Y.E., C.J.) (T.S.S., J.)
ab April 26, 2012
Index : Yes/No
Website : Yes/No
The Honourable the Chief Justice
and
T.S. Sivagnanam, J.
ab
Pre-delivery Judgment in
W.A. No.542 of 2012 and
W.A. No.2470 of 2011
Delivered on 26..04..2012