IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30-04-2009 CORAM: THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.No.29185 of 2008 And M.P.No.1 of 2008 And W.P.No.551 of 2009 And M.P.Nos.1,2 and 3 of 2009 Mr.M.Azhagaiya .. Petitioner in WP 29185/2008 K.Kathir Kamaraj .. Petitioner in WP 551 of 2009 vs. 1.The State of Tamil Nadu, represented by its Secretary to the Department of Industries, Fort St. George, Chennai – 600 009. 2.The District Collector, Kancheepuram District, Kancheepuram. 3.The Commissioner of Geology and Mining, Guindy, Chennai – 600 032. .. Respondents in WP 29185/2008 The District Collector, Kancheepuram, Kancheepuram District. .. Respondent in WP 551/2009 WP No.29185/2008: Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, directing the respondents to consider the representation of the petitioner dated 6.12.2008 in the matter of conducting an auction for the Quarry No.4, situated in Survey No.25/2B of Tirusoolam Village, Kancheepuram District to an extent of 1.32.0 hectares as early as possible. WP No.551 of 2009: Petition under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records from the file of the respondent and quash the order passed by the respondent in proceeding RC.No.402 of 2008 dated 2.9.2008 and permit the petitioner quarry operations as well as to transport the quarried materials in respect of Quarry No.4 measuring an extent of 1.32 Hectares, comprised in Survey No.25/2B Part of Tirusoolam Village, Tambaram Taluk, Kancheepuram District on payment of seigniorage fee for a period of 16.9.2008 to 15.9.2013 as per Rule 8(8) of The Tamil Nadu Minor Mineral Concession Rules, 1959. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in WP 29185 of 2008 & : Ms.Aruna For Petitioner in WP551 : Mr.V.T.Gopalan, of 2009 Senior Counsel for Mr.M.Ravikumar (WP.29185/08) & Mr.R.Ramanlaal. (WP.551/09) For Respondents in both WPs : Mr.P.S.Raman, Addl. Advocate General Assisted by Ms.D.Geetha, Addl. Government Pleader. For Impleading Petitioner in M.P.3 of 2009 in W.P.551 of 2009 : Mr.P.V.S.Giridhar COMMON ORDER By a notification published in the District Gazette, dated 19.12.2002, the District Collector, Kancheepuram, invited applications for the grant of lease to quarry stones, through tender/auction in the lands comprised in various Survey Numbers in several villages of Kancheepuram District. The notification contained three schedules, with (i) Schedule-A comprising of quarries in four different villages in Tambaram and Chinglepet Taluk, which were described to be old stone quarries, (ii) Schedule-B comprising of quarries in nine villages in Chinglepet, Uthiramerur, Maduranthakam and Cheyyur Taluks, which were described to be new stone quarries and (iii) Schedule-C comprising of quarries in Chinglepet, Maduranthakam and Sriperumbudur Taluks, described as Gravel Quarries. 2. One Mr.K.Kathir Kamaraj, the petitioner in W.P.No.551 of 2009 applied for the quarry at Serial No.4 under Schedule-A to the notification, in respect of Quarry No.4 in Survey No.25/2B, Tirusoolam Village, of the extent of 1.32.0 hectares, described as Hill Poromboke. In the tender-cum-auction held on 8.1.2003, his offer was found to be the highest and accepted. Therefore he paid the security deposit of Rs.5 lakhs and also paid the lease amounts in terms of Rule 8(6)(c) of The Tamil Nadu Minor Mineral Concession Rules, 1959. 3. A deed of lease in the prescribed format (Appendix-I) was executed by the District Collector in favour of the said K.Kathir Kamaraj on 16.9.2003, granting lease of quarrying rights in respect of the aforesaid quarry for a period of 5 years and the lease deed was also registered in the Office of the Sub Registrar, Tambaram. The period of lease was to expire on 15.9.2008. 4. Towards the end of the period of lease, the Lessee K.Kathir Kamaraj, made a request to the District Collector on 15.5.2008, seeking extension of the lease for a further period of 5 years on the ground that the quarry granted to him on lease was a virgin quarry and that therefore by virtue of Rule 8(8) of The Tamil Nadu Minor Mineral Concession Rules, the lease ought to have been for a period of 10 years in the case of virgin quarries. After more than two months of making the said representation, the petitioner filed a writ petition in W.P.No.22068 of 2008, claiming that the application for https://hcservices.ecourts.gov.in/hcservices/ renewal is pending and seeking a Writ of Mandamus to forbear the respondent from interfering with his right to continue quarrying operations till the expiry of another 5 years from the date of expiry of the original lease. Pending disposal of the writ petition, an interim order of injunction was granted in favour of K.Kathir Kamaraj, in M.P.No.1 of 2008 on 8.9.2008. 5. But by the time the interim order was granted in the said writ petition, the District Collector had already passed an order dated 2.9.2008, rejecting the request for extension of the period of lease on the ground that the quarry in question was not a virgin quarry. Therefore, challenging the order of rejection dated 2.9.2008, the Lessee K.Kathir Kamaraj has come up with the writ petition W.P.No.551 of 2009, praying for a Writ of Certiorarified Mandamus, to quash the order of rejection dated 2.9.2008 and to direct the respondent to permit the petitioner to continue the quarrying operations for a further period of 5 years in terms of Rule 8(8) of The Tamil Nadu Minor Mineral Concession Rules, 1959. 6. In view of the order of rejection dated 2.9.2008, the first writ petition filed by the petitioner W.P.No.22068 of 2008 was dismissed and the interim order granted therein also perished along with the said order. Therefore the Lessee K.Kathir Kamaraj filed along with the main writ petition W.P.No.551 of 2009, two miscellaneous petitions in M.P.Nos.1 and 2 of 2009, seeking (i) an interim stay of the order of rejection and (ii) an interim injunction restraining the respondent from interfering with his rights to continue to quarry. 7. On 12.1.2009, when W.P.No.551 of 2009 came up for admission along with the two miscellaneous petitions, the learned Additional Government Pleader took notice and requested time to get instructions. Therefore the writ petition was adjourned without granting any interim order. Subsequently, the respondent filed a counter affidavit and the writ petition itself was requested to be taken up for disposal. 8. In the meantime, it was brought to my notice that a resident of the locality where the quarry is situate, had also filed a writ petition in W.P.No.29185 of 2008, seeking the issue of a Writ of Mandamus, to direct the respondents to consider his representation dated 6.12.2008 for the conduct of an auction in respect of the very same quarry, which is the subject matter of the other writ petition. Therefore this writ petition W.P.No.29185 of 2008 was also directed to be tagged along with W.P.No.551 of 2009. 9. Meanwhile, an elected member of the local body (Tirusoolam Panchayat) filed a miscellaneous petition in M.P.No.3 of 2009, seeking to implead himself as a party to the writ petition W.P.No.551 of 2009, for the purpose of opposing the prayer of the Lessee K.Kathir Kamaraj for extension of the period of lease. Therefore this miscellaneous petition was also taken up. https://hcservices.ecourts.gov.in/hcservices/ 10. I have heard Mr.V.T.Gopalan, learned Senior Counsel appearing for the Lessee, who is the petitioner in W.P.No.551 of 2009, Mr.P.S.Raman, learned Additional Advocate General for the official respondent, Mr.P.V.S.Giridhar, learned counsel appearing for the person seeking to implead himself (petitioner in M.P.No.3 of 2009 in W.P.No.551 of 2009) and Ms.Aruna, learned counsel for the petitioner in W.P.No. 29185 of 2008. 11. Since the prayer made in W.P.No.29185 of 2008 depends upon the outcome of the other writ petition, viz., W.P.No.551 of 2009, let me take it up first. W.P.No.551 of 2009: 12. The main grievance of the petitioner in W.P.No.551 of 2009 is that the quarry in question is a virgin quarry and that therefore in terms of Rule 8(8) of The Tamil Nadu Minor Mineral Concession Rules, 1959, the period of lease ought to be 10 years. According to the petitioner, though the notification for the grant of quarrying lease described the quarry in question as an old quarry, it was not covered by any prior lease. The petitioner claims that he came to know of its virginity, only after he started operating the quarry and that immediately he made a representation dated 15.3.2004, seeking extension of the lease. 13. In support of the above contentions, Mr.V.T.Gopalan, learned Senior Counsel appearing for the petitioner, placed strong reliance upon the judgment of the Division Bench of this Court in A.Srinivasan vs. District Collector {2008 (3) CTC 800} and an unreported decision dated 18.9.2008, passed in W.P.(MD) No.6140 of 2008 by K.Suguna, J. 14. Sub Rule (8) of Rule 8 of The Tamil Nadu Minor Mineral Concession Rules, 1959, as amended by G.O.Ms.No.391, Industries (MMC- I) Department, dated 17.11.2000, reads as follows:- "(8) The period of lease for quarrying stone in respect of the virgin areas, which have not been subjected to quarrying so far, shall be ten years. The period of lease for quarrying stone in respect of other areas shall be five years. The period of lease for quarrying sand and other minor minerals, other than the minerals covered under Rules 8-A and 8-C of the said Rules, shall not exceed three years and shall not be less than one year and shall be subject to the following conditions, namely: (i) The date of commencement of the period of lease granted under this Rule shall be the date on which the lease deed is executed. (ii) The lease shall expire on the date specified in the lease deed and in no case extension of the period of lease shall be made." https://hcservices.ecourts.gov.in/hcservices/ 15. Prior to the above amendment, the District Collector was empowered to grant lease for quarrying stones, only for a period of 5 years. The Amendment to Sub Rule (8) was introduced in the year 2000 and hence a question arose as to whether persons who were granted leases for 5 years before the amendment, were entitled to take the benefit of the amendment. The issue went before the Division Bench of this Court in A.Srinivasan's case. 16. Construing the words "which have not been subjected to quarrying so far", appearing in the amended Rule 8(8), the Division Bench held in paragraph-13 of its judgment as follows:- "A lease is known to be virgin by the fact whether it was virgin at the time when it was granted for quarrying. So long as the lease period is in force, the area would be only known to be virgin till such time the lease is over. The words "which have not been subjected to quarrying so far" in the amended Rule shall relate only to date on which the lease was granted and not subsequently. The intention of the legislature is clear in granting ten years for virgin quarries and only for five years in respect of other quarries. The decision to grant ten years is with reference to virgin quarries. We do find any intention of the legislature to restrict the period to existing virgin quarries and in fact by that rule, there is no such restriction. This would be the correct interpretation as the Government had duly taken into consideration of the representations of the lessees who could not exploit the mineral for the entire full period of five years. As the area being virgin, they had to develop the area before commencement of the quarrying operation and in that process, they would lose a substantial portion of the lease period. Keeping the above grievance of the lessees only, the Government had extended the period of lease to ten years in respect of virgin areas. Hence, the lessees are entitled to the lease for a period of ten years provided the areas that were leased to them were virgin and there were no prior leases granted and the said quarries were not put into operation earlier." 17. After holding that the amendment to Rule 8(8) would have retrospective operation so as to confer a benefit upon the existing holders of leasehold rights, the Division Bench also took up the case of those whose leases came into existence after the amendment was introduced. In so far as their cases are concerned, the Division Bench held in paragraph-17 that the terms of the contract should be in accordance with statutory rules and that when the Rule prescribes a period of 10 years in respect of virgin quarries, it cannot be abridged to 5 years by contract. https://hcservices.ecourts.gov.in/hcservices/ 18. In M.Joseph Rathinasamy vs. The District Collector, Madurai {WP(MD) No.6140 of 2008, dated 18.9.2008}, the petitioner was granted a lease quarry stones in S.F.No.83, Part-8 in Kodayampatti Village, Vadipatti Taluk, Madurai District. On the ground that various portions of S.F.No.83 had already been leased out for quarrying operations and that therefore the quarry leased out to the petitioner cannot be construed as a virgin quarry, his application for extension was rejected. But the learned Judge held that though the other parts of the same survey number S.F.No.83 had been leased out earlier, Part-8 of S.F.No.83 had not been leased out earlier and that therefore Part-8 of S.F.No.83 was only a virgin quarry. While holding so, the learned Judge observed as follows:- "As per Rule 8(8) of the Tamil Nadu Minor Mineral Concession Rules, 1959, the period of lease for quarrying stone in respect of the virgin areas, which have not been subjected to quarrying so far, shall be ten years. So even as per the Rule 8(8) of the Tamil Nadu Minor Mineral Concession Rules, 1959, is concerned, the virginity has to be decided only in respect of area only which has been leased out and not with reference to S.F. Number. Consequently, the arguments of the learned Government Advocate that if the portion of the area in S.F. Number is leased out, the area comprised in the entire S.F. Number has to be treated as non virgin area will not hold good." 19. Therefore based upon the above two judgments, it was vehemently contended on behalf of the petitioner in W.P.No.551 of 2009 that the petitioner was entitled to extension of the period of lease by 5 years so as to make the lease in tune with Rule 8(8). To substantiate the contention that the quarry in question viz., Quarry No.4 in Survey No.25/2B of Tirusoolam Village, was not the subject matter of any prior lease and that quarrying operations started for the first time thereon, the learned Senior Counsel for the petitioner also invited my attention to the following:- (a) Under Clause 6(3) of the lease deed dated 16.9.2003, the Lessee is obliged to remove the surface soil, before digging and opening any part of the demised pieces of land, so that the land can be restored, after the period of lease, to be fit for cultivation. Under Clause 6(7), the Lessee is obliged to keep correct accounts, showing the quantity and other particulars of the mineral obtained from the land. The accounts maintained by the petitioner would show that from the date of grant of lease, the petitioner was able to remove only the earth and the surface soil, for a full period of 2 years, which itself established that the quarry in question was a virgin, first time quarry. The petitioner has also produced, in the typed set of papers, the details of transport permits issued by the Deputy Director (Mines) from 22.9.2003 upto 30.12.2005. These transport permits indicate that what the petitioner could do for a full period of 2 years (even a little more than that), was only the preparatory work of removing the surface soil. Therefore, according to the petitioner, the quarry in question could not have been an old https://hcservices.ecourts.gov.in/hcservices/ quarry at all, in the light of the fact that the petitioner could not get anything out of the quarry except surface soil and earth for the initial period of 2 years out of the total period of lease of 5 years. (b) The petitioner also engaged the services of one Dr.S.Rajendran, a Geologist, from the Department of Earth Sciences, Annamalai University, to make Geophysical Studies on the land in question and he filed a report, after inspection, that the area is a plain virgin land. (c) The petitioner had also made a representation dated 15.3.2004 at the earliest point of time, pointing out that it was not the virgin quarry and seeking the extension of the lease. (d) The petitioner, before coming to Court, approached the Deputy Director of Geology and Mining under The Right to Information Act, seeking certain documents, so as to find out the exact areas, which were leased out earlier. The Deputy Director has also furnished the copies of certain documents and sketches, showing the portions of land that were the subject matter of previous leases. These documents and sketches have now been produced by the petitioner. On the basis of one of the sketches signed by the Assistant Director of Geology and Mining, showing the residences within the 500 meter radius in Survey No.25/2B, it was pointed out that only a small portion of the larger extent in Survey No.25/2B had been granted by way of lease earlier to Anna Harijan Contract Labour Cooperative Society and that the land in entirety in Survey No.25/2B was not the subject matter of any prior lease. (e) The petitioner also drew my attention to another combined sketch which formed part of the lease deed. That sketch shows the quarry portions situate outside the 300 meter radius of the residential area. By inviting my attention to the sketch, it was contended that the portion of land leased out to the petitioner could never have been the subject matter of any prior lease, considering the restrictions earlier placed and later modified to 300 meters. (f) The petitioner also relies upon an Inspection Report submitted by the Assistant Director of Geology and Mining, on 30.1.1993, at the time of scrutinising the application of Tirusoolam Anna Harijan Blue Metal Works Labour Contract Cooperative Society Ltd., for the grant of lease to quarry blue metal in Survey No.25/2B. It was pointed out in the Inspection Report, that there were no permanent structures any where within the radius of 500 meters in the area under reference. The subsequent proceedings of the District Collector dated 12.3.1993, also contained a statement that there are still vacant spaces available for quarrying, out of the 20 acres of land in Survey No.25/2B. Therefore there are overwhelming materials according to the petitioner, to show that the particular quarry leased out to the petitioner was in fact a virgin quarry at the time of the grant and that therefore in view of Rule 8(8), as interpreted by the Division Bench, the petitioner was entitled to extension of the lease. https://hcservices.ecourts.gov.in/hcservices/ 20. However, in response to the above contentions, Mr.P.S. Raman, learned Additional Advocate General, contended that once the very notification inviting applications described the quarry in question as an old quarry and the petitioner obtained lease only in pursuance of the said notification, the petitioner was estopped from claiming the contrary. The petitioner cannot request this Court to rewrite the tender conditions or the lease deed. The learned Additional Advocate General also distinguished the decision of the Division Bench and the decision of the learned single Judge, on the ground that in those cases, there was no finding of fact recorded, that the quarries in question were non-virgin quarries. Therefore, the learned Additional Advocate General justified the impugned order and submitted that it did not call for any interference. 21. I have carefully considered the rival submissions. Unlike the cases before the Division Bench in Srinivasan.A.'s case and the case before Justice K.Suguna, a serious disputed question of fact has arisen in the present case, as to whether Quarry No.4 in Survey No.25/2B, Tirusoolam Village, was a virgin quarry or not, even at the time when the lease was granted in September 2003 in favour of the petitioner. This is borne out by the following facts:- (i) In the Kancheepuram District Gazette notification published on 19.12.2002, inviting applications for tender/auction, the quarry in question was listed at Serial No.4 under Schedule-A, under the heading "old stone quarries eligible for the grant of lease for 5 years under Rule 8(8) of The Tamil Nadu Minor Mineral Concession Rules, 1959". It is in pursuance of this notification that the petitioner applied and obtained a lease. (ii) In the order of rejection dated 2.9.2008, the District Collector has taken a definite stand that the quarry in question is not a virgin quarry. He has stated that the Tirusoolam Anna Harijan Blue Metal Workers Labour Contract Cooperative Society Ltd., was originally granted a lease to quarry, in an extent of about 50.40 acres in S.No.25/2B for the period ending 16.11.1984 and that such lease was subsequently extended from 17.11.1984 to 16.11.1987 and 15.2.1988 to 14.2.1991. It is further stated in the said letter that the same Society was granted lease over an extent of about 20 acres, after restricting the area and that another extent of 23.62 acres was also leased out from 2.1.1996 to 1.1.2001 to the same Society, on the Western side of the quarry area. (iii) Even in the counter affidavit filed by the District Collector in the first writ petition W.P.No.22068 of 2008, the respondent has furnished elaborate details of the previous leases. 22. By inviting my attention to (i) the Inspection Report of the Assistant Director of Geology and Mining, dated 30.1.1993, (ii) the Report of the Private Geologist engaged by the petitioner, (iii) the transport permits over a period of 2 years from September 2003 to December 2005 and (iv) the sketches enclosed to the lease deed with particular reference to the prohibited distance changing from 500 meters to 300 meters, the petitioner seeks to establish in this writ petition that the quarry is actually a virgin quarry in fact. https://hcservices.ecourts.gov.in/hcservices/ 23. In other words, the petitioner has invoked the writ jurisdiction of this Court to decide a seriously disputed question of fact, with reference to the rival contentions and documents produced on either side. This, I am afraid, is not within the realm of the writ jurisdiction of this Court. The petitioner cannot now seek to disprove a fact, that was admitted by both parties at the time of entering into the lease, especially before a writ Court. 24. In the decision of the Division Bench in Srinivasan.A.'s case, the Bench recorded in paragraph-12 the submission that there was no denial that the areas granted to the Lessees, which were the subject matter of the writ appeals and the writ petitions, were virgin on the date when they were granted. Again in paragraph-21 of its decision, the Division Bench observed that the respondent- authorities had not denied the fact that at the time when the leases were granted to the Lessees, the areas were virgin. In paragraph-26 of the judgment, the Division Bench pointed out that in so far as one writ appeal and a few writ petitions were concerned, the Bench was not in a position to find out as to whether at the time when the lease was granted, the areas were virgin or not. Therefore that one writ appeal and those few writ petitions were not allowed, but merely disposed of, giving liberty to the appellant/petitioners to approach the Government and establish the question of fact relating to the virginity of the quarry. 25. A careful reading of the judgment of the Division Bench shows that the Bench was dealing with two sets of cases viz., (i) cases where there was no dispute that the quarries were virgin at the time of the grant in favour of the petitioners/appellants before the Bench and (ii) cases where this question of fact was not borne out due to the absence of a counter affidavit from the respondents. It is only in the first set of cases that the Division Bench granted the