IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.04.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.25116 OF 2009 and connected miscellaneous petitions. M/s.Indian Garnet Sand Company Pvt. Ltd., rep. By its Managing Director D.Dhaya Devadoss. .. Petitioner vs. 1.State of Tamil Nadu rep. By its Secretary Industries Department Fort St.George, Chennai 9. 2.The Geology & Mining Department rep. By its Commissioner Guindy Industrial Estate Post Guindy, Chennai 32. 3.The District Collector Trichy District, Trichy. 4.M/s.Cauveri Garnet Pvt., Ltd., 64 Lakshmikanthapuram Extension Thuraiyur, Trichy District. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari as stated therein. WP.No.25116/2009 : Petition filed under Article 226 of the Constitution of India, call for the the records of the second respondent pertaining to their proceeding Proc.No.17060/MM7/2002 and to quash the order dated 23.10.2009 made in favour of the 4th respondent and pass such further or other orders. For petitioner : Mr.V.Shanmugam For respondents : Mrs.Lita Srinivasan Govt.Advocate for R.1 to R.3 Mr.V.Sanjeevi for R.4 https://hcservices.ecourts.gov.in/hcservices/ ORDER The writ petition is directed against the order of the second respondent dated 23.10.2009, by which the second respondent granted mining lease for garnet to an extent of 2.08.0 hectares in Appanallur Village, Thottiam taluk, Trichy District in favour of the fourth respondent for a period of 20 years. The relevant survey numbers and extent as per the order reads as follows: Village S.F.No. Extent Appanallur 57/10F 0.11.5 58/8E1 0.14.5 58/8E4 0.05.5 58/8E5 0.17.5 59/1E 0.28.5 59/1F 0.16.0 59/3C 0.07.5 59/2E 0.82.0 59/3A 0.25.5 Total 2.08.0 2. The petitioner, a company registered under the Companies Act carrying on the business of mining of garnet sand in patta and Government lands, has applied for the grant of mining lease for garnet sand in the said village and Poolancheri village in Trichy District in the year 1996. After making necessary survey and obtaining a report from the Geologist, no lease was granted and hence, the petitioner approached this Court earlier and there was a direction to consider the application of the petitioner and even thereafter, the application was not considered which resulted in filing a contempt application and when the contempt application was pending, the first respondent returned the application of the petitioner. a) In the said contempt application, on filing a sub-application by the petitioner, the order of return was set aside and this Court directed the first respondent to grant lease. It is stated that against the said order, the first respondent filed an appeal before the Division Bench, which directed the respondents to consider the application of the petitioner and pass orders. It was, thereafter, on 16.8.2005, the lease was granted, under which the petitioner commenced the mining operations. https://hcservices.ecourts.gov.in/hcservices/ b) It is the case of the petitioner that the 4th respondent is a rival company, against whom certain complaints were given and public interest litigations were filed on the basis that the 4th respondent was disturbing the lawful mining operations of the petitioner in various places like, Tuticorin and Trichy. The petitioner has realized that the 4th respondent applied for mining operations in the land to an extent of 2.07 hectares in Appanallur village and 2.08.5 hectares in Poolancheri village in Trichy District and the said applications were hurriedly considered by the second respondent, who granted the clearance in respect of Appanallur village lands. c) It is stated that the mining plan has been approved by the third respondent and the lease is yet to be granted by the District Collector, who has to execute the lease deed. In those circumstances, the petitioner made a representation to the respondents stating that if the 4th respondent is granted mining lease in the adjacent land, there would be every possibility for the 4th respondent to interfere with the mining operations of the petitioner which may result in law and order problems. d) Even though such a representation was made by the petitioner, the first respondent without adhering to the provisions of the Mines and Minerals (Development and Regulation) Act,1957 and the Mineral Concession Rules,1960 granted clearance to the 4th respondent in respect of the non-garnet areas overlapping three private lands belonging to the petitioner. It is stated that in respect of the lands, there has been some dispute regarding ownership with one M/s.Beach Minerals Company which has taken over the 4th respondent with an ulterior motive to prevent the lawful mining operations of the petitioner. e) It is stated that the 4th respondent has artificially diverted the water flow of the river course into their patta land and in respect of 201.65.5 hectares mining lease was granted in favour of the sister concern of the petitioner, by name, M/s. Southern Enterprises in Thottiyam and Musiri taluk, Trichy District. 3. The grant of lease in favour of the 4th respondent is challenged on the ground that the application filed by the 4th respondent for 1.05 hectares is not maintainable since the minimum area must be 2 hectares and the garnet sand is not available in 1.05 hectares. It is also the complaint of the petitioner that the mining lease granted in favour of the 4th respondent is relating to the lands which are well within the boundaries of the lands in respect of which lease was granted to the petitioner and there is absolutely no scope for the deposit of garnet sand far away from the water course and therefore, the second respondent should have rejected the https://hcservices.ecourts.gov.in/hcservices/ application. The impugned order of lease which has been passed against the law in favour of the 4th respondent is challenged by the petitioner on the ground that the first respondent has failed to consider and give reasons to differ with the findings of the third respondent,the competent authority and that the lease has been granted in gross violation and without consideration of the valid objection raised and as per the Mining Rules, before passing the impugned order, it has to be ascertained that the safety distance of 7.5 metres is provided from the adjacent patta lands, that the mining lease has been granted in respect of 2.08 hectares of lands, abetting the river which is under the control of Public Works Department. No safety distance of 50 metres has been provided in the river bank as per the Rules, that there is no possibility of existence of garnet outside the river bank, that the mining lease has been granted by the first respondent against the finding of fact that no garnet sand is available and that the inclusion of non-mineral area is to cover the minimum area of 2 hectares against the provisions of law, apart from many other grounds. 4. In the counter affidavit filed by the third respondent, it is stated that the writ petition is not maintainable since the petitioner has got a right of revision before the Central Government against the order of the second respondent as per section 30 of the Mines and Minerals (Development and Regulations) Act, 1956 read with the Mineral Concession Rules, 1960. That apart, on merits, it is stated that the 4th respondent made an application on 17.1.2002 to the Government through the District Collector, Tiruchirapalli for mining garnet sand from the patta land measuring an extent of 1.07.5 hectares in S.F.Nos.59/2E and 59/3A of Appanallur village, Thottium Taluk, Trichy District for a period of 30 years and subsequently, an order was passed under section 26(1) of the Mines and Minerals (Development and Regulations) Act, 1957 (in short, "the Act") rejecting the application on the ground that the minimum required area for mining lease is 2.00.0 hectares as per Rule 22D of the Mineral Concession Rules, 1960. a) It is stated that the 4th respondent acquired additional extent of lands to cover the required 2 hectares of land and thereafter, sought for the grant of mining lease to the total extent of 2.08.0 hectares of patta lands in S.F.Nos.57/10F, 58/8E, 58/E4, 58/8E5, 59/1E, 59/1F, 59/3C, 59/2E and 59/3A in Appanallur village, Thottium Taluk, Trichy District. It is, after spot inspection and on the recommendations of the third respondent-District Collector, the second respondent by a communication dated 29.5.2009, informed his decision for the grant of mining lease for garnet sand and required the 4th respondent to furnish the mining plan for approval by the Government of India, through Indian Bureau of Mines. https://hcservices.ecourts.gov.in/hcservices/ b) Thereafter, the 4th respondent prepared the mining plan and submitted the same for approval by the Controller of Mines (South Zone), Indian Bureau of Mines, Bangalore, who, after inspection, approved the plan on 13.10.2009. It is stated that the Government by G.O.Ms.No.133, Industries Department dated 4.5.1998 delegated the powers to the second respondent for the purpose of granting mining lease in respect of the patta lands for major minerals, by virtue of the powers under section 26(2) of the Act, 1957 and it was, thereafter the second respondent under the impugned order dated 23.10.2009, granted the mining lease to the 4th respondent in respect of 2.08 acres in S.F.Nos.57/10F, 58/8E, 58/8E4, 58/8E5, 59/1E, 59/1F, 59/3C, 59/2E and 59/3A in Appanallur village, Thottium Taluk, Tiruchirapalli District for the period of 20 years. c) Thereafter, the third respondent required the 4th respondent to remit a sum of Rs.10,000/- towards security deposit and Rs.4160/- towards surface rent and also to furnish non-judicial stamp papers to the value of Rs.45,960/- for the execution of lease deed and to produce bank guarantee for Rs.1 lakh. It is stated that the 4th respondent complied with all the requirements and the lease deed as per the Mineral Concession Rules, 1960 also came to be executed between the District Collector/third respondent and the 4th respondent on 27.10.2009 and registered as document No.3132 of 2009 in the office of the Sub-Registrar, Musiri and upon execution of the lease deed, the 4th respondent has commenced the mining operations from 2.11.2009. d)It was, suppressing the above facts, the petitioner filed the writ petition and obtained an ex parte order in this Court on 8.12.2009 by giving false information as if the District Collector was yet to execute the lease deed. It is stated that V.V. Minerals, Beach Minerals and the 4th respondent are different entities and the 4th respondent was constituted as a company in the year 2002 and Mr.S.Sukumar and Tmt.S.Kalaiarasi, who were holding the management of the 4th respondent have not continued and stepped down and the present management assumed charge and is running the management of the company. e) It is stated that M/s.Beach Mineral Sands Company is not the sister concern of the 4th respondent. While the application was made in the year 2002 by the 4th respondent, it was on 29.5.2009, only after seven years, the second respondent approved the precise area clearance. The mining plan has to be approved by the Controller of Mines, Bangalore, Indian Bureau of Mines and not by the District Collector who is not the authority. It is stated that the lease granted to the petitioner is in respect of Government poramboke land bearing S.F.Nos. 55,60 and 61 measuring 7.02.0 hectares, whereas the https://hcservices.ecourts.gov.in/hcservices/ permission granted to the 4th respondent is relating to patta lands and the distance between the petitioner’s lands and the patta lands of the 4th respondent is 25 metres and there is a bund at a height of 12 ft. in between the patta lands of the 4th respondent and the lease- hold poramboke lands of the petitioner and the bund is strengthened and supported by stones and there is absolutely no possibility for the 4th respondent to prevent the right of mining by the petitioner and there is no overlapping of the lands of the petitioner. f) It is stated that the 4th respondent originally applied for mining garnet in the lands to an extent of 1.07.5 hectares on 17.1.2002 and that was not considered for the reason that it was less than the minimum extent as required under Rule 22D of the Mineral Concession Rules, 1960 and therefore, a notice was issued under Rule 26(1) of the Mineral Concession Rules to comply with the requirements and thereafter the 4th respondent acquired additionally the patta lands to an extent of 1.00.5 hectares of patta land in S.F.Nos.57/10F, 58/8E1, 8E4, 8E5, 59/1E, 1F and 3C in Appanallur village and fulfilled the minimum area requirement and the mining lease was then granted to the 4th respondent by the second respondent after going through the entire records based on the orders of the Indian Bureau of Mines, Bangalore. g) It is stated that there are various inherent reasons such as, high tide, cyclone, heavy rain flow and other natural calamities etc. which may promote the deposit of minerals in the lease hold land of the 4th respondent and the lease was granted for 20 years and not for 25 years. It is stated that various litigations stated by the petitioner with regard to the sister concerns which relates to Vembar Village, Tuticorin District. It is stated that necessary safety distance has been left out and it is only the petitioner who wants to create a monopoly and with that view, the present writ petition has been filed. 5. After the said counter affidavit was filed by the 4th respondent wherein the 4th respondent has stated that the third respondent-District Collector has already executed the lease deed on 27.10.2009, the petitioner filed M.P.No.2 of 2010 for amendment of the prayer so as to include the lease deed dated 27.10.2009 executed by the third respondent-District Collector in favour of the 4th respondent consequent to the impugned order of the second respondent dated 23.10.2009. In this miscellaneous petition, the 4th respondent in the writ petition filed a counter affidavit stating that the mining lease application of the 4th respondent has satisfied all the conditions required for the grant of mining lease in respect of the area applied for. The 4th respondent has also denied the various https://hcservices.ecourts.gov.in/hcservices/ allegations raised by the petitioner in the reply affidavit. It is stated in the mining plan approved by the Controller of Mines (South Zone), Indian Bureau of Mines, Bangalore that the minable reserve estimated in the applied area is 1,75,216 tonnes. It was only after considering the same, the second respondent granted the lease. The approved mining plan is the sine quo non for granting mining lease which has been followed in this case and therefore, it is stated by the 4th respondent that the petitioner cannot challenge the subsequent lease deed dated 27.10.2009. 6. Mr.V.Shanmugam, learned counsel appearing for the petitioner, while referring to the provisions of the Mines and Minerals (Development and Regulations) Act, 1957, especially section 5 read with rule 22D of the Mineral Concession Rules, 1960, would submit that when the minimum area required for mining lease is 2 hectares, since the 4th respondent admittedly filed application for mining lease in respect of 1.07.5 hectares, that application ought to have been rejected for the entire extent and the action of the 4th respondent in subsequently purchasing some other extent of land to make it as if the mining lease was sought for 2 hectares of land is not correct and according to him, it would amount to violation of the rules. It is submitted that when the application for mining of lesser extent of land was rejected and no lease was granted for more than 2 hectares, it is not open to the 4th respondent to claim that he is entitled to go for mining operations in respect of 2.08.0 hectares. It is his contention that the construction of the rules should be made in the sense that if an application is made for a minimum extent of land, it must be proved that the entire extent of land of minimum requirement contains the minerals. It is his submission that the mere existence of alternative remedy is not a rule of law and it is a rule of discretion, by relying upon the judgment in Voltas Volkart Employees Union vs. Voltas Limited [2000(1) CTC 184]. 7. On the other hand, it is the contention of Mr.V.Sanjeevi, learned counsel for the 4th respondent that in the absence of violation of the principles of fundamental rights, natural justice or for want of jurisdiction, the proper remedy for the petitioner is to file a revision which is available as per section 30 of the Act. He would refer to the judgment in Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai [AIR 1999 SC 22] Harbanslal Sahnia vs. Indian Oil Corporation Ltd., [(2003) 2 SCC 107], N.Narayanan vs. Securities and Exchange Board of India (SEBI) [2009 (8) MLJ 960] and State of Goa vs. M/s.A.H.Jaffar and Sons [AIR 1995 SC 333] to substantiate his contention that the facts are not admitted and under the disputed factual position, the writ petition would not lie. He would also refer to the merits of the case and referring to section 5(2)(a) of the Act dealing with the availability of minerals in the land in https://hcservices.ecourts.gov.in/hcservices/ question, his contention is that the quantity may be less or more and it is not necessary that every part of the land should have the minerals in entirety especially when the variation is a natural one. It is his submission that the documents which are relied upon by the petitioner are all relating to the period in which the permission was granted. It is his submission that the provisions of Rule 22(4) have been fully complied with by the 4th respondent and according to him, under rule 26(3) any mistake can be rectified and omission can be supplied. 8. I have heard the learned counsel for the petitioner and the learned counsel for the respondents and perused the entire records and given my anxious thoughts to the issue involved in this case. 9. Pursuant to the impugned order of the second respondent dated 23.10.2009, the lease deed was executed in favour of the 4th respondent in the writ petition on 27.10.2009 for a period of 20 years in respect of 2.08.0 hectares for mining the land and it is not in dispute that the 4th respondent, pursuant to the lease, is carrying on the mining operations. Admittedly, the impugned mining lease has been granted to the 4th respondent in respect of his patta lands. 10. The complaint of the petitioner, however, is that he has been the mining operator in respect of Government Poramboke lands which are stated to be situate adjacent to the patta lands of the 4th respondent. It is the case of the petitioner that the impugned order of granting quarry lease and licence in favour of the 4th respondent is against the Act as well as the Rules, whereas it is the case of the 4th respondent that the writ petition itself is filed by the petitioner who is a rival operator of mining in poramboke lands only to prevent the 4th respondent from carrying out the terms of the lease somehow or other. 11. On the admitted fact of execution of lease deed in favour of the 4th respondent in respect of 2.08.0 hectares in S.F.Nos.59/3A, etc. in Appanallur village, Thottiyam taluk, Trichy District, the issues to be decided are, as to whether the present application in which the lease has been granted is maintainable, particularly when an application made earlier by the 4th respondent on 17.1.2002 for mining a lesser extent of land of 1.07.5 hectares in the same land was rejected, that too, after the rule 22-D came to be introduced by way of amendment in the year 2003, stipulating the minimum extent of land required for mining shall be 2 hectares and whether the impugned https://hcservices.ecourts.gov.in/hcservices/ order passed granting the mining lease after the 4th respondent fulfilling the requirement of minimum extent of land by acquiring the adjacent lands is valid or not. 12. Before going into this aspect, since the 4th respondent has raised a preliminary issue regarding the maintainability of the writ petition on the basis of availability of alternative remedy of filing a revision, it is necessary to traverse to the said jurisdiction issue first which requires a reference to various provisions of Mines and Minerals (Development and Regulations) Act, 1957 and the Mineral Concession Rules, 1960. 13. It is true that at the time when the 4th respondent applied for permission to quarry garnet sand on 17.1.2002, there was no condition in existence to the effect that the lands in respect of which quarrying operation was sought for, should be more than 2 hectares. When the proposal was pending, rule 22-D of the Mineral Concession Rules, 1960 came to be introduced with effect from 10.4.2003 stipulating 2 hectares as minimum extent of land in respect of mining of beach sand or other placers and the said rule 22-D is as follows: “ Rule 22D. Minimum size of the mining lease.- Minimum area for grant of mining lease shall not be less than- (a) One hectare, in respect of small deposits (not fragmented portions of larger ones), shallow in nature, isolated and not exceeding more than 200 metres in strike length. These deposits are small by virtue of either origin or mode of emplacement or dislocation due to geological disturbances. Small deposits shall also include float deposits (transported) formed due to mechanical weathering and deposition, alluvial or eluvial placers (buried or otherwise), which generally have peculiar configurations excepting beach sands or placers; (b) Two hectares, in respect of beach sands or placers. Beach sands or placers are mono or multi-mineral concentrations, including the dunes occurring on and off the coastal shore line. These deposits are the products of ebb and flow of tides, waves and inshore currents, and at places semi- consolidated to consolidated in nature; https://hcservices.ecourts.gov.in/hcservices/ (c) Four hectares, in respect of all mineral deposits other than those specified under clauses (a) and (b):] [Provided that in the case of renewal of mining lease, the restrictions of minimum area for grant of mining lease shall not be applicable.]” 14. Rule 26 of the Mineral Concession Rules, 1960 is as follows: “ Rule 26. Refusal of application for grant and renewal of mining lease.- (1) The State Government may, after giving an opportunity of being heard and for reasons to be recorded in writing and communicated to the applicant, refuse to grant or renew a mining lease over the whole or part of the area applied for. (2) An application for the grant or renewal of a mining lease made under rule 22 or rule 24A, as the case may be, shall not be refused by the State Government only on the ground that Form I or Form J, as the case may be, is not complete in all material particulars, or is not accompanied by the documents referred to in sub-clauses (d), (e), (f), (g) and (h) of clause (i) of sub-rule 22. (3) Where it appears that the application is not complete in all material particulars or is not accompanied by the required documents, the State Government shall, by notice, require the applicant to supply the omission or, as the case may be, furnish the documents, without delay and in any case not later than thirty days from the date of receipt of the said notice by the applicant.” 15. While sub-rule (1) of Rule 26 enables the State Government to give opportunity if it is decided to refuse to grant mining lease as enumerated above, rule 26(3) enables the Government to ask for more particulars if the application is bereft of certain information giving 30 days’ time. It is seen that based on the said powers, there was some correspondence between the Government and the Department of Geology and Mining on the point as to whether the entire extent of 2 hectares of land should contain the trace of minerals applied for, when the 4th respondent purchased additional land and gave particulars so as to make the total extent of land as 2.08.0 hectares. In the communication of the Director of Geology and