1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:14.11.2011 CORAM THE HON'BLE MR.JUSTICE K.N.BASHA AND THE HON'BLE MR.JUSTICE M.VENUGOPAL WA(MD)No.237 of 2011 K.Kittusamy :Appellant/Petitioner -Vs- 1.The District Collector, Dindigul. 2.The Assistant Director of Geology and Mining, Dindigul :Respondents Prayer:Appeal filed under Clause 15 of the Letters Patent against the order of this Court in W.P.(MD)No.6310 of 2010 dated 26.10.2010. Writ Petition filed under article 226 of the Constitution of India to to issuance of a writ of certiorarified mandamus to call for the records relating to the impugned order passed by the 2nd respondent in Na.Ka.No.39/2002, Minerals dated 20.04.2004 and quash the same and further direct the 1st respondent to refund of Rs.3,34,079/- with the further interest at the rate of 24% per annum till the date of realization. For Appellant :Mr.K.P.S.Palanivel Rajan For Respondents:Mr.R.Anandharaj,Government Advocate JUDGMENT (Judgment of the Court was delivered by K.N.BASHA, J.) The appellant has come forward with this appeal challenging the order of the writ court dated 26.10.2010 made in W.P.(MD)No.6310 of 2010 dismissing the writ petition filed by the appellant seeking the relief of quashing the order passed by the second respondent herein with a consequential direction to the first respondent to refund an amount of Rs.3,34,079/- with further interest at the rate of 24% per annum till the date of realization. 2.The case of the appellant is that he has succeeded in getting quarry lease for quarrying sand to an extent of 10.00.0 Hectares comprised in Field No.540, situated at Keeranur Village, Palani Taluk, Dindigul District as he is the highest bidder with the lease amount of Rs.1,70,000/- and won the contract for the period from 01.04.1998 to 31.03.2001. After he commenced quarrying, a third party filed a writ petition in W.P.No.4373 of 1998 against the grant of lease to the appellant for sand quarry and the said writ petition was allowed on 11.06.1999 and as a result, the appellant has stopped quarrying operations. As against the said order of the writ court, https://hcservices.ecourts.gov.in/hcservices/ 2 the appellant preferred a writ appeal in W.A.No.1149 of 1999 and the writ appeal was dismissed by a Division Bench of this Court by the order dated 22.06.2001. However, the Division Bench held as follows: "We only would say that in this writ appeal, we may not go into the merits of the order of the obvious reason that no practical purpose would be served by going into the merits of the order since the lease period has itself expired on 31.03.2001. However considering that the appellant has suffered serious prejudice, he is free to make a representation before the concerned authority for the refund of his remaining consideration. It is pointed out that it is only for an year that the contract could be worked out and that the appellant has in fact made the payment for the whole period of three years and thus 2/3rd of the lease period still remained when he had to stop his mining activity. It will be for the Collector to consider all these questions. If a representation in that behalf is made by the appellant. Mr.Ramasubramanian therefore seeks permission to make such a representation. Permission is granted. If the representation is made within a month ...." 3.Accordingly, the appellant preferred representations on 03.08.2001 and 10.03.2003 for the refund of the security deposit amount with damages and interest. The second respondent passed the impugned orders dated 20.04.2004 ordering demurrage against the appellant for not quarrying the area for the year 1999-2000 and 2000-2001. Being aggrieved against the said orders, the appellant preferred a writ petition in W.P.(MD)No.6310 of 2010 and the said writ petition was dismissed by the writ court by the order dated 27.10.2010 and as against the same, the present writ appeal is preferred. 4.Mr.K.P.S.Palanivel Rajan, learned counsel for the appellant, would submit that there is absolutely no fault on the part of the appellant as he was not able to carry out the quarrying operations only because of the writ petition filed by a third party and the said writ petition was allowed and thereafter, writ appeal was filed and by that time, the writ appeal was disposed, the lease itself expired and as such, the Division Bench has given liberty to the appellant to prefer a representation to the respondents for claiming refund of the security deposit amount. It is contended that the appellant has preferred such a representation without any delay on 03.08.2001 itself and thereafter, another representation was preferred by him on 10.03.2003. The learned counsel would submit that in spite of such representations, no action was taken and no orders were passed and on the other hand, the second respondent passed the impugned orders dated 20.04.2004 claiming demurrage from the appellant which necessitated the appellant to challenge the said orders and seek the relief of direction to the first respondent to refund the security deposit amount with interest. It is contended that there is absolutely no lapse or delay on the part of the appellant in preferring the representations. It is contended that the writ court dismissed the writ petition on the ground of delay. https://hcservices.ecourts.gov.in/hcservices/ 3 5.Per contra, learned Government Advocate would submit that the appellant had not approached the respondents within the period stipulated by the Division Bench for seeking the relief of return of security deposit amount. It is submitted that a counter is also filed to that effect. It is further contended that the writ court has considered that the appellant has not preferred the representation within the time frame and he has preferred the representation as per his sweet will after a period of seven years and accordingly, dismissed the writ petition filed by the appellant. 6.We have given our careful and anxious consideration to the rival contentions put forward by either side and perused the order passed by the first respondent and the order of the writ court. 7.At the outset, it is to be stated that the appellant is the successful bidder in auction and accordingly, lease deed was entered into between the appellant and the first respondent for carrying out quarrying operations in sand quarry in respect of the area mentioned earlier. It is seen that accordingly the appellant also commenced the quarrying operations, but a third party filed a writ petition and the said writ petition was allowed setting aside the lease granted in favour of the appellant which necessitated the appellant to stop quarrying operations. The appellant had challenged the said order of the writ court by filing a writ appeal in W.A.No.1149 of 1999 and by the time, the writ appeal came to be heard, the lease period itself expired and as such, the Division Bench of this Court passed an order dated 22.06.2001 giving liberty to the appellant to prefer a representation within a period of one month for seeking the relief of refund of the security deposit. At this stage, it is relevant to refer that the appellant has preferred representations on 03.08.2001 and 10.03.2003. Such factor is not at all disputed or denied by the first respondent even in the counter filed in the writ appeal. It is also pertinent to note that even the writ court while dismissing the petition on the ground of delay in making the representation not referred the representation of the year 2001, i.e., 03.08.2001 preferred by the appellant. 8.The learned counsel for the appellant has rightly placed reliance on the provision under Section 36-E of the Tamil Nadu Mines and Mineral Concession Rules, 1959 which reads hereunder : "36-E. Refund of lease amount, etc. In certain cases – Where the State Government have made premature termination of a quarrying lease or permit under the provisions of sub-section (2) of Section 4-A of the Act, the District Collector or the District Forest Officer, as the case may be, shall fix the amount of proportionate lease amount or seigniorage fee, etc., that may be refunded to the quarrying lessee or permit holder for the un- expired portion of the lease or permit period with the approval of the State Government and make the refund to that person concerned within a reasonable period after the premature termination of the quarrying lease or permit." A reading of the said provision makes it abundantly clear that there is no time limit prescribed for making any claim for refund of the security deposit. But on the other hand, the appellant preferred the representation pursuant to the liberty given by the Division Bench by the order dated https://hcservices.ecourts.gov.in/hcservices/ 4 22.06.2001 in W.A.No.1149 of 1999 on 03.08.2001 itself and the said factor is not at all disputed by the respondents, as pointed out earlier. Such being the position, there is absolutely no justification for denying to refund the amount deposited by the appellant as security deposit for executing the lease deed for carrying out the sand quarry operations. 9.At this juncture, we are also constrained to state that in spite of the representations made by the appellant on 03.08.2001 and on 10.03.2003, even as per the admitted version of the respondents in their counter, the respondents have not raised their little finger to consider and pass any order on such representations and on the other hand, the impugned order was passed by the first respondent claiming demurrage against the appellant. We are of the considered view that such orders dated 20.04.2004 are nothing but the orders to defeat even the genuine claim of the appellant for refund of the security deposit, though it is stated in the counter that the respondents claimed demurrage only in order to collect dead rent for the respective period as per the Audit of Accountant General for the period 1999-2001. 10.In view of the aforesaid reasons, the writ appeal is allowed and the order of the writ court dated 26.10.2010 made in W.P.(MD)No.6310 of 2010 is set aside and the orders of the second respondent dated 20.04.2004 are also set aside. Consequently, the first respondent herein is directed to refund the security deposit amount of Rs.1,70,000/- to the appellant with interest at the rate of 12% per annum from the date of stopping the quarrying operations till the date of realization. It is made clear that the said exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order. No costs. Sd/- Deputy Registrar (Writs) / TRUE COPY / Assistant Registrar To: 1. The District Collector, Dindigul. 2. The Assistant Director of Geology and Mining, Dindigul. +1CC to The Special Government Pleader. SR.No.39776. Gg RP/07.12.2011/4P/4C. W.A.(MD)No.237 of 2011 14.11.2011 https://hcservices.ecourts.gov.in/hcservices/