IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.08.2010 CORAM: THE HONOURABLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA and THE HONOURABLE Mr. JUSTICE M.M.SUNDRESH WRIT APPEAL No.2374 OF 2004 ----- 1. The District Collector, Kamarajar District at Virudhunagar. 2. The Assistant Director of Mines, Department of Mining & Geology, Kamarajar District at Virudhunagar. .. Appellant. /versus/ M.P.Ram Mohan Raja .. Respondent. Writ Appeal filed under Clause 15 of the Letters Patent against the order of the learned single Judge made in W.P.14981 of 1996 dated 17.4.2004. Petition presented under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus, calling for the records relating to the order of the first respondent made in No.EV1/1897/91 dated 20.9.1996 and quash the same and consequently direct the respondents to execute the lease deed for five years in favour of the petitioner in respect of lands measuring 8 acres in S.Nos.188 and 194 in Solaiseri Village, Rajapalayam Taluk and 2.32 acres in S.No.683/1, Singammalpuram Village, Srivilliputhur Taluk, so as to enable the petitioner to carry on quarrying operation to pay the lease amount for the remaining four years. https://hcservices.ecourts.gov.in/hcservices/ For appellant : Mrs.Malarvizhi Udayakumar, Special Government Pleader. For respondent : No appearance. ----- (JUDGMENT OF THE COURT WAS DELIVERED BY M.M.SUNDRESH,J. ----- This Writ Appeal has been filed by the appellant against the order of the learned single Judge, wherein the order passed by the first appellant directing the respondent to pay the lease amount after refusing to extent the period of lease, was set aside. 2. The facts of the case in brief are that by the District Gazette (Extra-ordinary) No.29, dated 16.7.1991 bids were invited for the public auction on the scheduled dates to quarry stones in Survey No.683/1 of Singammalpuram village in Srivilliputhur Taluk to an extent of 2.32 acres and in Survey No.188 and 194 of Solaiseri village in Rajapalayam Taluk to an extent of 8 acres. In pursuance of the auction conducted on 16.7.1991, the respondent became the successful bidder and the auction was confirmed on 17.9.1991 in his favour. 3. However, before the execution of the lease deed, the respondent filed a writ petition No.14700 of 1991 and obtained an order of interim injunction restraining the appellant herein from interfering with his right to quarry and transport rough stones from the areas confirmed in his favour. After expiry of the lease period, a demand notice was issued to the respondent by the appellant directing him to pay arrears of the lease amount for the Fasli years 1402 to 1405 on the ground that he continued to have the pleasure of the lease quarry in pursuance of the interim order covering the entire lease period. A representation was made by the respondent on 19.4.1996 requesting to drop the demand and to extend the period of lease. Thereafter, another writ petition was filed. This Court had directed the appellant to consider the representation on merits and in accordance with law. 4. The first appellant after consideration of the said order, has passed an order reiterating the demand made earlier for the lease period and further rejected the request for extension of lease period. Challenging the said order, the respondent filed writ petition No.14981 of 1996. https://hcservices.ecourts.gov.in/hcservices/ 5. The learned single Judge has allowed the writ petition on the ground that the interim order obtained in W.P.14700 of 1991 did not prevent the appellants from executing the lease deed and in the absence of the lease deed, the demand cannot be sustained. It was further observed that the respondent has not quarried during the lease period and in view of the non-execution of the lease deed, the same has to be extended for another period of five years. Challenging the said order the present appeal has been filed. 6. Learned Special Government Pleader appearing for the appellant submitted that the terms of the auction conditions and the period mentioned therein cannot be varied or modified. Admittedly, auction is for a period of five years and the auction is only to quarry rough metal/jelly. There is no condition permitting the respondent to quarry any rough stone block. The object of the lease was to quarry the rough stone/jelly which could be used for construction of building and rough stone blocks could not be used directly in construction purpose and the same could not be used directly for decorative and ornamental purposes. It is further submitted that the respondent was in a position to quarry the lands confirmed in his favour before the entire lease period. There was interim order in his favour. He has to pay the lease amount for the entire period. In view of the fact that the respondent was in a position to quarry, it could not be allowed to anybody and the question as to whether it was used or not is not relevant, for the purpose of payment of lease amount. In support of her contention that the period once fixed for the auction, the same cannot be varied or modified, the learned Special Government Pleader relied upon the following judgments of this Court and the Hon'ble Supreme Court:- (i) PAUL RAJ,J. v. DISTRICT COLLECTOR, KANYAKUMARI DISTRICT AT NAGERCOIL (1995 (2) L.W.,437). (ii) VERIGAMTO NAVEEN v. GOVT. OF ANDHRA PRADESH (A.I.R.2001 S.C., 3609). 7. From the records we have seen that on the earlier occasion, a counsel has filed Vakalath for the respondent. Thereafter, change of Vakalath has been filed. However, the counsel for the respondent has not appeared for the two consecutive hearings. Therefore, this Court has directed to serve fresh notice on the respondent. Accordingly, the appellant has effected service on the respondent. Even though notice has been served and the name of the respondent is printed in the cause list, neither the respondent nor the counsel has appeared on his behalf. Therefore, we are constrained to proceed with the appeal on merits. https://hcservices.ecourts.gov.in/hcservices/ 8. As contended by learned Special Government Pleader, law is well settled that the period mentioned in the auction notification cannot be extended or altered. Admittedly, the notification mentions the period of five years. The respondent was also aware of the fact that the lease was confirmed for a period of five years. In the decision reported in 1995 (2) L.W., 437, supra, it has been held that even in a case of delay which in turn resulted in the execution of lease deed, it cannot be claimed that the lease has to be executed for a fresh period starting from the execution of the lease. It was held there that lease can only be granted in accordance with the statute and as per the terms of auction notification and for the period stated therein. The said issue has been considered by the Division Bench of this Court wherein after considering the earlier judgment of this Court as well as the Hon'ble Supreme Court, it was observed that the Court shall not extend the period of the lease mentioned in the notification. Therefore, applying the said ratio, we are of the opinion that the order of the learned single Judge in directing the first appellant to execute the lease deed, cannot be sustained. 9. The other observations made by the learned single Judge cannot also be sustained. It is the respondent who approached this Court and obtained the interim order contrary to the conditions of lease. He was also in possession pursuant to the orders of this Court. Possession of the respondent was not disturbed during the lease period. When the demand of lease amount was for the period in occupation which has relevance for quarrying operation, it is for the respondent to quarry or to keep the land unused. There is no condition stipulated that only when the land is used for quarrying, the lease amount has to be paid. Admittedly, the respondent was in possession for a period of five years. As a result of the same, the lands covered by the auction notice, could not be leased out to any other third party. Therefore, for the mistake committed by the respondent, the appellant cannot be found fault with. 10. The other ground on which the writ petition was allowed was that the appellant has not executed the lease deed and therefore, the demand cannot be made also cannot be sustained. When the respondent without co-operating for execution of the lease, rushed to the Court and obtained an order of injunction contrary to the lease deed and Rules. It cannot be said that the appellants should execute the lease deed in spite of interim orders obtained during the pendency of the writ petition. When it is the specific case of the appellants that the respondent is not entitled to quarry any operation, the question of execution of the lease deed during the pendency of the writ petition, would defeat the very stand taken by them. Further there is no direction by this Court to execute the lease deed. As observed earlier, it is the respondent who was https://hcservices.ecourts.gov.in/hcservices/ allowed to be in possession pursuant to the orders of this Court and it is he who obtained orders from this Court. Therefore, the respondent cannot take advantage of the orders of this Court. 10. For the above said reasons, we are of the opinion that the order of the learned single Judge has to be set aside. Accordingly, the same is set aside and the writ appeal is allowed. sai Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The District Collector, Kamarajar District at Virudhunagar. 2. The Assistant Director of Mines, Department of Mining & Geology, Kamarajar District at Virudhunagar. + 1 cc to Government Pleader, SR No.62037 JRG(CO) SR/21.9.2010 W.A.NO.2374/2004 https://hcservices.ecourts.gov.in/hcservices/