IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.11.2008 CORAM THE HON'BLE MR. JUSTICE S.MANIKUMAR W.P.No.4782 of 2001 R.A.Jayasingh ... Petitioner vs 1. The Director of Geology and Mining, Guindy, Chennai-32. 2. The District Collector, Kancheepuram District, Kancheepuram. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus, to call for the records and other connected records of the first and second respondents relating to their proceedings in Roc.16412/MM5/1998, dated 30.01.2001 and Rc.No.1442/Q.1/96, dated 06.10.1998 respectively, quash the said orders and consequently to direct the second respondent to measure and demarcate the leasehold area of the petitioner as was shown to him before the auction after giving an opportunity of personal hearing and to direct the second respondent to allow the petitioner to quarry in the leasehold area for the full block period of five years from the date on which, the second respondent allows the petitioner to be re-commence quarrying in the said lands by compensating the loss of period from 01.04.1996 to 07.11.1996 and the loss of period due to the lease cancellation order of the second respondent. For Petitioner ... Mr.R.Muthukumarasamy, Senior Counsel for M/s.G.Munirathinam For Respondent ... Mr.A.Arumugam, Additional Government Pleader O R D E R The petitioner has sought for a Writ of Certiorarified Mandamus to quash the orders of the first and second respondents, relating to their proceedings in Roc.16412/MM5/1998, dated 30.01.2001 and Rc.No.1442/Q.1/96, dated 06.10.1998 respectively and to direct the second respondent to measure and demarcate his leasehold area, as was shown to him before the auction, after giving him an opportunity of personal hearing and also direct the second respondent to allow him to quarry in the leasehold area for the full block period of five years from the date on which, the second respondent allows him to be re-commence quarrying in the said lands by compensating the loss of period from 01.04.1996 to 07.11.1996 and the loss of period due to the lease cancellation order of the second respondent. 2. Facts leading to the Writ Petition are as follows: Stone quarry comprised in Survey No.49, in Poondi Village, Chengalpattu Taluk, divided into two bits as Quarry No.1 and Quarry No.2, over an extent of 3.00.0 and 4.14.5 Hectares respectively, were brought for tender-cum-auction on 29.10.1996. The petitioner has participated in the said auction and was declared as successful bidder for Rs.7,00,000/-, in respect of stone quarry No.2. After remittance of bid amount and other charges, a lease deed was executed in favour of the petitioner for a period of five years, ending on 31.03.2001. Similarly, Stone Quarry No.1 was granted on lease to Thiru.Mahendran for Rs.2,40,000/-. It is the case of the petitioner that the authorities have failed to measure and demarcate the area in respect of quarry Nos.1 and 2, prior to public auction. The demarcated map and the draft lease deed with respect to quarry No.2 were not enclosed along with the confirmation order of the second respondent, dated 04.11.1996. Even the Deputy Tahsildar has signed the necessary sketch only on 11.11.1996, after the execution of the lease deed, dated 08.11.1996. 3. The petitioner was shocked to see that as per the sketch, attached to the lease deed, the area allotted to him was a barren area and deposit of stone was available only in 20 cents. Whereas, the lessee in Quarry No.1 was permitted to quarry in a rocky area. The petitioner has represented the above discrepancy to the authorities and the District Collector, vide his letter, dated 13.12.1996, directed the Tahsildar, Chengalpattu to demarcate the area with proper boundaries, so as to enable the lessees to carry on quarrying operations in their respective quarries. After repeated requests, the Tahsildar, Chengalpattu, responded to the directions of the Collector, dated 13.12.1996 and on 07.02.1997, the area was measured and demarcated by the concerned Surveyor to the dismay of the petitioner. Since the area allotted to the petitioner, as per the sketch submitted to the Sub Registrar along with the lease deed for registration, was different from the area shown to him by the Mines Department prior to the auction, he submitted a representation, dated 12.02.1997 to the District Collector to demarcate the area correctly in the presence of some responsible officer and allot the area properly. Inspite of repeated requests, no action was taken and therefore, the petitioner was forced to quarry in a limited area of 20 Cents, out of the total extent of 4.14.5 Hectares leased out to him. 4. The petitioner has further submitted that as megre deposits of stone were found in the limited area of 20 Cents in Quarry No.2 allotted by the officials, he was constrained to dig earth in the adjacent area, allotted to him. But, the lessee of Quarry No.1 with his men, forcibly obstructed the petitioner's workers from doing the work, stating that the said area is required for him as pathway to transport his quarried stones. This fact was also informed to the District Collector and there was no action. It is the case of the petitioner that it is highly irregular and improper on the part of the officials, as they have failed to mention the boundaries on four sides of the leasehold area, even though there is a specific provision in the lease deed. However, without resolving the dispute with regard to the division of leasehold area and without passing any orders on the representations referred to above, the District Collector, Kancheepuram District, has issued a notice, dated 10.03.1997, for remittance of second year's lease amount. Though the above said position was informed by the petitioner to the District Collector, through reminders, dated 20.05.1997 and 08.08.1997, he has issued a show cause notice, dated 10.11.1997, for cancellation of the lease, alleging that the petitioner has failed to pay the second year's lease amount on the pretext, that the area was not measured and demarcated. In the said show cause notice, the District Collector has referred to a letter of the Tahsildar, dated 24.05.1997, wherein the Tahsildar has stated that the area was measured and demarcated in the presence of both the lessees. 5. The petitioner has further submitted that in response to the said show cause notice, he submitted a reply, dated 17.11.1997 to the Collector for suitable action. Without resolving the dispute, the Collector, in his second show cause notice, dated 21.08.1998, again directed the petitioner to pay the second and third years' lease amounts and threatened to cancel the lease and forfeit the security deposit, if the petitioner fails to pay the lease amounts. The petitioner also submitted a detailed reply on 31.08.1998. However, without considering the facts and without passing any order on the dispute raised by the petitioner, the District Collector, in his proceedings dated 06.10.1998, has arbitrarily cancelled the petitioner's lease. Against which, the petitioner preferred an appeal before the Director of Geology and Mines, Chennai, the first respondent herein and the same was dismissed. Aggrieved by the orders of respondents 1 and 2, the petitioner has preferred the present Writ Petition. 6. The respondents in their counter affidavit have submitted that the petitioner was granted quarry lease in respect of rough stone jelly etc., to an extent of 4.14.5 Hectares in Survey No.49(No.2) of Poondi Village for the period from 08.11.1996 to 31.03.2001 for the first year's lease amount of Rs.7,00,000/-. Since the petitioner failed to remit the lease amount for the second and third year of the lease period from 01.04.1997 to 31.03.1998 and from 01.04.1998to 31.03.1999 respectively, he was issued with a show cause notice, as to why the lease should not be cancelled for non-payment of the lease amount. The petitioner submitted his explanation, stating that the area was not measured properly and the area map was not furnished to him. But the Tahsildar, Chengalpattu in his statement has clearly stated that the area was properly measured and demarcated in the presence of the lessees. Further, a copy of the sketch, showing Quarry Nos.1 and 2 was already displayed in the office Notice Board before the sale took place. A copy of the sketch was also furnished to the petitioner on 11.11.1996. However, the petitioner, without making payment of lease amount for the second and third years, has been repeatedly stating that the area was not properly measured and on that pretext, evaded payment. Therefore, for non-payment, the lease granted to the petitioner was cancelled by the District Collector, in his proceedings dated 06.10.1998. Aggrieved by the same, the petitioner preferred an appeal before the Director of Geology and Mining, Chennai, first respondent and said appeal was dismissed on 30.01.2001. 7. The respondents have further submitted that the Tahsildar in his report, dated 24.05.1997, has categorically reported that he had measured the area and demarcated the same in the presence of lessees, Tvl.R.Mahendran and the petitioner and a copy of the sketch was also furnished along with the lease deed to the petitioner. The alleged delay in signing the sketch by the Deputy Tahsildar on 11.11.1996, cannot be taken into cognizance, since the lease deed had already been executed on 08.11.1996, after satisfying with the area to be leased out in public auction. The area was made available for inspection by the intending bidders even before the sale took place. 8. The respondents have denied the contention of the petitioner that he was forced to quarry in a limited area of about 20 Cents and further submitted that the area obtained by the petitoiner through tender cum auction, was already shown to him, before the sale took place and having accepted the availability of the stone deposits in the site allotted to him, it is not open to the petitioner to contend that he was forced to quarry in a limited area of about 20 cents. Further, as per the lease deed, the boundaries of the area were also shown to him. It is further submitted that the repeated representations of the petitioner on the flimsy ground, would go to show that he was certainly evading payment. Further, there is no discrepancy in the sketch already notified and furnished to the petitioner. Moreover, the petitioner was given sufficient opportunity by issuing show notices, dated 10.03.1997 and 21.08.1998, before cancellation of the lease and therefore, there is no violation of the principles of natural justice. For the above said reasons, the respondents have prayed for dismissal of the Writ Petition. 9. The submissions of Mr.R.Muthukumarasamy, learned senior counsel appearing for the petitioner are as follows: (i) The appellate authority has failed to note that the second respondent has cancelled the lease of the petitioner, without giving an opportunity of personal hearing and therefore, there is a violation of Rule 36(5)(H) of the Tamil Nadu Minor Mineral Concession Rules, 1959. (ii) The appellate authority has also failed to consider that the sketch pertaining to the Survey No.49 was furnished only on 11.11.1996. (iii) Both the District Collector and the appellate authority have not considered the genuine grievance of the petitioner that the disputed area was measured by the surveyor only on 07.02.1997, on the instructions of the Tahsildar, Chengalpattu and not before the date of execution of the lease deed. On receipt of the challan for payment of the balance amount, the District Collector ought to have sent a copy of the draft lease deed, as in form of Appendix-I to the Rules, along with the copy of the sketch of the surveyed and demarcated area. (iv) When the petitioner had specifically brought to the notice of the District Collector that the draft lease deed and the map of the area, to be leased out, were not enclosed with the District Collector's confirmation order, dated 04.11.1997, which is a requirement as per Rule 8(5)(c) of the Tamil Nadu Minor Mineral Concession Rules, the said authority ought to have considered the objection in proper prospective and mere recording a statement by the appellate authority that the report of the Tahsildar cannot be ignored, amounts to failure to exercise their jurisdiction. (v) The leased out area of two stone quarries in Survey No.49, viz., Stone Quarries 1 and 2 were measured and demarcated, only after the grant of lease, i.e., after the petitioner made a complaint to the District Collector about the favouritism shown by the Officials to the lessee of Quarry No.1. (vi) Neither the District Collector nor the Appellate Authority, had taken it seriously and failed to consider whether the Tahsildar had measured and demarcated the area in the presence of the parties, prior to execution of the lease deed. They have failed to advert to the dispute regarding improper and invalid demarcation of the area. (vii) The officials had shown a rough sketch, indicating the division of hilly and rocky areas almost equally divided for Quarry Nos.1 and 2 and the petitioner was made to believe that the quarry areas 1 and 2 were equally divided and on that legitimate expectation, he had invested huge amount in the tender. (viii) With a closed mind, the appellate authority has erroneously and arbitrarily concluded that the petitioner should have satisfied himself about the availability of the stones in the area and participated in the tender cum auction. (ix) The conclusion of the appellate authority that the petitioner wanted to evade payment of lease amount, for which, he had taken the tool of survey and demarcation of the area, reveals the closed mind of the appellate authority. When the petitioner had invested huge money to the tune of Rs.7,00,000/- per annum as lease amount for Quarry No.2, naturally, he would like to excavate stones in the area earmarked to him under the lease. (x) When improper demarcation of the area and violation committed by the authorities were pointed out, it is the duty of the appellate authority to examine the grievance as to whether the officials have failed to furnish draft lease deed and the draft map of the area, before execution of the lease deed. On the contrary, the appellate authority has merely reproduced the remarks of the District Collector and passed the impugned order causing serious prejudice to the case of the petitioner. (xi) The respondents have failed to furnish the draft lease deed and the map along with the confirmation order, dated 04.11.1996 and surreptitiously enclosed an unsigned map of the area only on 11.11.1996. When a dispute was raised as per the Condition No.8(d) of the Lease Deed about the absence of recording the boundaries of the lease hold area, to the schedule to the property leased out, it is the bounden duty of the respondents to address themselves to the objections and ought to have rectified their mistake by conducting a detailed enquiry, by giving an opportunity of personal hearing to the petitioner. (xii) The observations of the appellate authority that the Tahsildar had measured the disputed area is factually incorrect and it was only the surveyor who had done the work of demarcation. 10. The total period of lease fixed and notified in the District Gazettee was for five years. Due to the dispute, the petitioner could not quarry for the period from 01.04.1996 to 07.11.1996 and sustained severe loss. Therefore, he prayed that the impugned orders be set aside and be permitted to continue to quarry as per the lease deed. 11. Reiterating the averments made in the Vacate Stay Petition, Mr.A.Arumugam, learned Additional Government submitted that the area was properly measured and demarcated in the presence of two lessees (Tvl.R.Mahendran and the petitioner). He further submitted that the area in Survey No.49 was divided into two portions and that the petitioner was fully satisfied with the demarcated area before participating in the tender cum auction. He further submitted that the areas of Quarry Nos.1 and 2 have been clearly indicated in the Gazettee Notification before the public auction was invited. He has also denied the contention of the petitioner that sketch was tampered with to show favouritism to the other lease holder. He further submitted that the copy of the sketch was also handedover to the petitioner on 11.11.1996. 12. Referring to Clause 5(2)(a) in the lease deed, dated 08.11.1996, learned Additional Government Pleader further submitted that under the lease conditions, the petitioner is obliged to pay the lease amount for every year on or before 15th day of March in advance with escalation of 20% of previous year's lease amount for the succeeding year without fail. 13. Learned Additional Government Pleader further submitted that if the petitioner was really aggrieved about non-furnishing of the sketch and demarcation of the area, as notified in the office Notice Board, he could have very well terminated the lease, either whole or in part of the premises by issuing six months notice in writing. Admittedly, the petitioner has failed to exercise the option to terminate the lease deed, but taken up the defence of non-furnishing the draft lease deed, so as to avoid his contractual obligations under Clause 5(2)(a) of the lease deed to pay the yearly lease amount. He further submitted that the petitioner has been provided with sufficient opportunity to put forth his case and therefore, there is no violation of the principles of natural justice. 14. Learned Additional Government Pleader further submitted that as the petitioner has failed to pay the lease amount for the above said quarry, for the second and third lease years, show cause notices, dated 10.03.1997 and 21.08.1998 were issued to the petitioner calling upon him to explain as to why the lease should not be cancelled and for deducting the amount already remitted. The explanation of the petitioner was considered with reference to the records and a detailed order was passed by the District Collector, Kancheepuram, on 06.10.1988, cancelling the lease. He further submitted that the appellate authority, while examining the statutory appeal, found that demarcation was made in the presence of both the lessees and taking into consideration the report of the Tahsildar, has categorically held that the petitioner, with an intention to evade payment of lease amount for the succeeding years, had taken up a false ground of not surveying the leasehold area before execution of the lease. 15. Learned Additional Government Pleader further submitted that as against the order of the appellate authority, a Second Appeal is provided under the Tamil nadu Minor Mineral Concession Rules. As the question whether the measurement was taken prior to the gazette notification and display in the Office Notice Board, being a matter of fact, cannot be agitated in Writ Petition and therefore, for the reasons stated supra, prayed for dismissal of the Writ Petition. Heard the learned counsel for the parties and perused the materials available on record. 16. Before adverting to the facts of this case, it is relevant to have a cursory look at some of the provisions of the Tamil Nadu Minor Mineral Concession Rules, 1959. Rule 8 of the said Rules deals with leasing of lands for quarrying minor minerals other than the minerals covered under rules 8-A and 8-C of these rules. As per the Rule, the District Collector shall publish a notice in the District Gazette, inviting tender applications in sealed cover for grant of lease of areas for quarrying minor minerals other than the minerals covered under Rule 8-A and 8-C of these rules. Rule 8-A deals with the lease of quarries to private persons in respect of granite. Rule 8-C deals with the quarrying of granite by the State Government and granting of lease to a State Government Company or Corporation. Rules 8-A and 8-C are not relevant for the purpose of the case. The District Collector shall give further publicity to the invitation of tender applications. Every notice and advertisement published under Clauses (a) and (b) shall inter alia specify (i) Survey number, extent, village and Taluk of the area offered for lease and the name of the mineral allowed for quarrying in the area; (ii) last date and time for receipt of tender applications. There shall be atleast fifteen clear days between the date of publication of the notice in the District Gazette and the last date for receipt of the tender applications. 17. As per Rule 8(3), every tender application made for grant of a quarrying lease shall be accompanied by a demand draft for the total amount, which is equivalent to Rs.25,000/- payable towards Earnest Money Deposit and 10% of the tendered amount being the advance deposit (towards adjustment for initial payment if the tender applicant is eventually declared as successful person to obtain the lease subject to the other conditions laid down in this rule. As per Rule 8(5)(a)(ii), all persons who have made applications for participating in the auction and the tender offering shall be present during the entire auction-cum-tender proceedings so as to know as to who is declared as the successful person eligible to obtain the lease of the area and to make 10% of the bid or tender amount as initial payment immediately after the declaration made by the District Collector. 18. As per Rule 8(5)(b)(vi), after the name of the successful bidder or tenderer, as the case may be, is declared by the District Collector, such person shall pay 10% of the bid amount or tender amount, as the case may be immediately. If he fails to pay the 10% of such amount immediately, he shall lose his bid or tender, as the case may be, and his earnest money deposit shall forfeited to the Government. As per Rule 8(5)(b)(vii), the remaining 90% of the tendered amount or bid amount, deducting the earnest money deposit already made, shall be paid within a week's time thereafter. If the balance amount is not paid within the above stipulated time, 10% amount already paid immediately after the auction or tender opening along with the earnest money deposit shall be forfeited to the Government. 19. Clauses 6(c) to (f) of Rule 8 read as follows: "(c) On receipt of the original challan for payment of the balance 90% of the bid amount or tendered amount from the successful bidder or tenderer, the order of the District Collector granting the lease in favour of the said person shall be communicated to him accompanied with (i) a copy of the draft lease deed as in the Form in Appendix I to these rules; and (ii) a map of the surveyed and demarcated are granted on lease to him. On receipt of the above order of the Collector, the grantee of the lease shall produce with the stipulated time (i) the original challan for remittance of the balance amount indicated in the order of the District Collector towards security deposit which is payable at 10% of the lease amount or five thousand rupees whichever is greater; (ii) the draft lease deed; (iii) the map of the area granted on lease with the signature of the applicant; and (iv) required stamp papers for preparing the original lease deed. (d) The District Collector is empowered to make additions or modifications or deletions to the extent necessary in the lease deed in the Form in Appendix I to these rules. (e) The lease deed shall be executed by the applicant on the appointed day and time with a map of the demarcated leased out area appended to it. (f) No lessee is entitled to raise any dispute with reference to survey and demarcation of the area leased out to him after execution of the lease deed." 20. Coming to the facts of this case, in respect of Quarries 1 and 2 in Survey No.49 of Poondi Village, Saidapet Taluk, Kancheepuram District, there was a Gazette Notification and an advertisement was given in the Newspaper on 14.10.1996. In the tender cum public auction conducted under Sub Rule 1 of Rule 8 of the Tamil Minor Mineral Concession Rules, the petitioner was declared as the successful bidder for grant of quarrying rights, for rough stone over an extent of 4.14.5 Hectares in