IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.02.2008 CORAM THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN AND THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN W.A.No.1203 of 2003 M/s.Gem Granites rep.by its General Manager 76,78, Cathedral Road Chennai – 600 086. .. Appellants/Petitioner Versus 1.The Secretary to Government Industries Department Fort St.George Clhennai – 600 009 2.The Director of Geology and Mining Industrial Estate,Guindy, Chennai-32. 3.The District Collector Madurai District Madurai. ... Respondents /Respondents Prayer: Writ Appeal filed filed under Clause 15 of the Letters Patent against the order of the learned single Judge of this Court dated 5.2.2003 made in W.P.No.7467 of 2001 Writ of Mandamus direcing the respondents to refund the amounts deposited towards lease amount, Security Deposit, area assessment, first year dead rent and stamp duty totaling to Rs. 2,78,13,700/- towards the grant of lease in G.O.3(D) No. 38 Industries Department, dated 20.4.1998 with interest at 24% p.a. Calculated from the date of deposit to the date of settlement in full. For Appellants : Mrs.Nalini Chidambaram Senior Counsel, for Mr.S.Silambanan For Respondents: Mr.G.Masilamani, https://hcservices.ecourts.gov.in/hcservices/ Advocate General,assisted by Mr.R.Thirugnanam, Special Government Pleader. JUDGMENT K.RAVIRAJA PANDIAN, J. In this appeal, the correctness of the order dated dated 5.2.2003 made in W.P.No.7467 of 2001 rejecting the appellant's request for issuance of a mandamus to direct the respondents to refund the amount deposited by the appellant towards lease amount, security deposit, area assessment, first year dead rent and stamp duty totalling a sum of RS.2,78,13,700/- for the grant of lease in G.O.3(D) NO.38 Industries Department dated 20.4.1998 with interest at the rate of 24% per annum from the date of deposit till the date of settlement, has been questioned. 2. Mrs.Nalini Chidambaram, learned Senior Counsel appearing for the appellant has assailed the order by contending that when a Division Bench of this Court, in a public interest litigation in W.P.No.16876 of 2000, has granted the very same relief and the correctness of the same is pending consideration before the Supreme Court by way of Civil Appeal at the instance of the respondents, on the principle of comity, the learned single Judge would have merely followed the same, leaving the State to take up the matter on further appeal to the Supreme Court to be disposed of along with the Civil Appeal. The judgment of the Division Bench of this Court dated 6.9.2001 being inter-parties, though not attained finality or operate as res judicata, on the principle of bar of re-litigation precluded the Court from making decision against the appellant. 3. On merits, the learned Senior Counsel for the appellant has contended that the grant of mining lease is governed by the Tamil Nadu Minor Mineral Concession Rules. The procedure followed in this case is not in conformity thereof, particularly, Rule 8A(3)(b) and Rule 8A(8)(c) and Form VI-A, in the sense, that the area offered for lease has not been demarcated. The parties were not on consensus as to the area. No binding concluded agreement has come into force. Consequently, the appellant is entitled for refund of deposit. The entire correspondence shows the dispute as to the identity of the area has been in existence contemporaneously and not as an after thought. The learned single Judge has erred in relegating the appellant to common law remedy, as there is neither concluded contract nor disputed question of fact in existence or involved. When the notification itself required the intending bidders to https://hcservices.ecourts.gov.in/hcservices/ ascertain the quarry and satisfy about the nature and availability of the minerals, the respondent cannot grant the land as per their whims and fancies. The writ petition is maintainable even for an action for recovery of money. 4. Per contra, Mr.G.Masilamani, learned Advocate General appearing for the respondents has submitted that the public interest litigation now seized of by the Supreme Court does not deter this Court from deciding this issue independently and as a matter of fact, the writ petition was disposed of as per the direction of the apex Court by its order dated 18.1.2002. The area offered for lease has already been identified and demarcated by yellow colour wash. The Gazette notification requiring the indenting bidders to ascertain and satisfy themselves about the quality of the mineral available in it cannot be construed that the appellant is required to identify the area to be taken on lease. The procedure contemplated under Rule 8A has been followed. Having aware of the area, the appellant submitted his tender, obtained the lease and executed the lease deed on 7.10.1998. The area offered in lease has been clearly demarcated in Field Measurement Book and it was annexed along with the lease deed. The subsequent demarcation made by the Tahsildar in a different area by mistake cannot be taken advantage of by the appellant. The statutory rules as well as the lease deed entered into by the appellant specifically prohibits change over of the area and further prohibits the appellant from raising any dispute with regard to the survey number or demarcation of the area given in lease. If there was a real dispute or no consensus as to the identity of the area, the appellant ought to have protested the same before execution of the lease deed. Alternatively he contended that the dispute now raised by the appellant is a disputed question of fact and that cannot be adjudicated by means of averments contained in the affidavit and counter affidavit. It requires evidence in the form of oral and documentary. The order of the learned single Judge requires no interference. 5. We heard the argument of the learned counsel on either side and perused the materials on record. The files relating to the case also are placed before us. 6. The material facts, which are necessary to resolve the dispute, are as follows: The appellant, a pioneer in granite quarrying operation in India, pursuant to the notification issued in the District https://hcservices.ecourts.gov.in/hcservices/ Gazette, Madurai offering as many as 15 different areas for grant of lease for quarrying colour granite, has submitted its tender in respect of an area over an extent of 4 hectares in S.No.80 (Part) at Idayapatti village, which is item No.14 in the Schedule to the Gazette notification. The respondent Government by its G.O.3(D) No.38 dated 20.4.1998 granted quarrying permission to the appellant for a sum of RS.2,51,00,000/-. The appellant paid the amount and thereafter requested the District Collector to have the area demarcated. As per the direction of the District Collector, the Tahsildar demarcated the land and submitted his report on 27.10.1998. Even prior to the receipt of the said report, the required lease deed was executed by the appellant on 7.10.1998 with the Collector and the same was sent to the Sub-Registrar for registration on 14.10.1998. 7. The sketch of the land annexed along with the lease deed did not correspond with the area demarcated by the Tahsildar. Hence the appellant requested the Registering authority not to register the lease deed. When the discrepancy was pointed out, the Assistant Director of Geology and Mining on 18.12.1998 confirmed that the leasehold sketch annexed to the lease deed is the correct area offered for quarrying and rejected the request of the appellant to modify the sketch of the land as demarcated by the Tahsildar. All the efforts made by the appellant to the higher authorities went in vain. When the matter stood thus, one Mr.Bose filed a public interest litigation writ petition in W.P.No.16876 of 2000 for a mandamus directing the respondents No.1 and 3 herein to allot 4.00.0 hectares of the area to the appellant herein outside the Kuttai area in Survey No.80/Part of Idayapatti village, Madurai North Taluk, and the writ petition ended with a direction to the respondent to refund the deposit with 24 percent interest. In these factual basis, the appellant filed writ petition for refund of the amount. 8. The respondents filed counter, admitted the fact as to the grant of lease and execution of document, however contended that the subject area among other areas were earlier identified and demarcated in the Field Measurement Book as well as in the land before the publication of the Gazette by the Assistant Director Mineral Investigation Team of the office of the Director of Geology and Mining, Chennai. The demarcation so made has been approved by the Director of Geology and Mining and the Government. Based on the technical report, the land availability report and approval granted by the Government, the area was offered for quarrying minerals, after duly demarcating the area on land. In Survey No.80, two areas were offered for sale. One is the subject area and the other one is over an extent of 0.88.0 https://hcservices.ecourts.gov.in/hcservices/ hectares. The appellant after satisfying themselves on personal inspection of the area applied for and obtained the lease in his favour. For the reasons best known to him, it has now come forward with a false claim on untenable grounds. The writ petition was rightly rejected and no interference is called for. 9. Now let us consider the issue. 10. We are not able to accept the first part of the contention of the appellant, as a Division Bench of this Court in a Public Interest Litigation granted the very same relief now sought for in the present writ petition, the present writ petition should have been allowed leaving the State to agitate the matter before the apex Court along with Civil Appeal preferred against the order of the Division Bench for more than one reason. Firstly, the writ petition was disposed of independently in obedience of the direction given by the apex Court in its order dated 18.01.2002, which is evident from the observations in the order impugned which read as under : ".....As regards the order of the Division Bench dated 06.09.2002 in writ petition No.16876 of 2000, it can only be said that in the public interest litigation, the claim of the local people was that 'poromboke kuttai' should not be allotted for mining purpose. In any event, in the light of the direction of the Hon'ble Supreme Court dated 18.01.2002 in SLP preferred by the first respondent State and others to dispose of the present writ petition, the order of the Division Bench directing the refund in the public interest litigation having not determined the core issue involved as between the petitioner and the third respondent, the said order does not deter this Court from deciding the issue independently in this writ petition." 11. Secondly, when the relief sought for in the present writ petition has already been granted by the Division Bench in favour of the appellant by its order dated 06.09.2001 in a Public Interest Litigation, there is no necessity on the part of the appellant to pursue the present writ petition seeking for the very same relief already granted, even though the writ petition has been filed a few months prior to the disposal of the public interest litigation. It might be stated as a reason that the relief sought for in the Public Interest Litigation was only for issuance of the writ of mandamus directing the State Government and the District Collector to allot four hectares of area to the fourth respondent, the appellant herein outside the 'kuttai' https://hcservices.ecourts.gov.in/hcservices/ area in survey No.80 (part) of the Idayapatti village, but the fact remains that though the prayer of the above nature was sought for, the Division Bench granted the relief as under : "Under the above facts and circumstances, we are of the considered view that the fourth respondent is entitled to get back the amount deposited way back in 1998 with interest. Accordingly, we direct respondents 1 and 2 to effect refund of the aforesaid sum of Rs.2,78,13,700/- with interest thereon at the rate of 12% per annum from the date of deposit till the payment within three weeks from the date of receipt of a copy of this order or on production of the same by the fourth respondent, whichever is earlier. Since the sum of Rs.1,75,700/- reflecting the stamp duty was deposited by the fourth respondent only on 07.10.1998, we make it clear that the interest at 12% per annum will accrue only with effect from 07.10.1998. The writ petition is ordered accordingly. No costs." 12. The relief granted in the Division Bench judgment is once again sought for by the appellant in the writ petition. It is not as if the appellant was not a party to the proceedings. It was the fourth respondent therein and it is also accepted across the bar that it is also party to the civil appeal pending before the Supreme Court. Hence the contention of bar of re- litigation put forth against the respondent is directly staring at the appellant. Having obtained the very same relief in the so called pubic interest litigation, there is no compelling reason for the appellant to pursue this case for the very same relief. The action of the appellant thus creates suspicion in the mind of the Court as to the bonafide of the appellant and there are matters more than what apparently meeting eyes. In the above said circumstances, we are of the view that the first part of the contention of the appellant has no legs to stand and is liable to be rejected. 13. That leaves us to consider the second part of the contention as to the correctness of the identity of the area granted in favour of the appellant with reference to the statutory provisions. Rule 8A of the Tamil Nadu Minor Mineral Concession Rules provided for lease of quarry to private persons https://hcservices.ecourts.gov.in/hcservices/ in respect of red, pink, grey, green, white or other coloured or multi-coloured granites or any other rock suitable for use as ornamental and decorative stones (as obtained during relevant point of time). Sub-Rule (3)(a) to Rule 8A provided that the District Collector shall publish a notice in the District Gazette and also issue an advertisement in two dailies one in Tamil and another in English having wide circulation in the State of Tamil Nadu inviting tender applications in sealed cover for (grant of lease of areas where the existence of granite has been established to quarry the mineral) specified in sub rule (1). Sub Rule (4)(a) provided that all applications made in response to any notice or advertisement shall be in the form prescribed in Appendix VI-A to the Rules. Sub Rule (5) (c) provided that if any application is made in an area when there is no invitation of application under sub-rule (3), it may be summarily rejected as premature application. If the conditions incorporated in the said Rules are satisfied and if the State Government is of the opinion that the amount offered is reasonable, the State Government shall as per Rule 8A(8)(iv) issue the order granting the lease along with the copy of the draft lease deed in Form Appendix I of the Rules for the purpose of execution of the lease deed. Sub-Rule (8) (c) to Rule 8A provided that the lease deed shall be executed by the applicant with the District Collector concerned within one month from the date of receipt of the order of the State Government or within such further period not exceeding a period of thirty days as the District Collector may allow in this behalf. The lease deed shall be executed by the applicant on the appointed date and time with a map of the demarcated leased out area signed by the District Collector and the lessee, appended it. Sub Rule (9)(d) provided that no lessee is entitled to raise any dispute with reference to the survey and demarcation of the area leased out to him after execution of the lease deed. 14. Though the phraseology "grant of lease of areas where the existence of granite has been established to quarry the mineral" has been incorporated in sub rule (3) to Rule 8A by G.O. Ms. No.86 Industries dated 22.02.2001. Even prior to such incorporation, before-ever any area is offered for quarrying, in consonance with Mines and Mineral (Regulation and Development) Act, 1957, the Department of Director of Geology and Mining used to conduct prospective mining activity, i.e., surveying and identifying the area, which bears minerals, the land availability for excavation and make a report to the Government for approval for the purpose of offering the area for excavation of minerals. https://hcservices.ecourts.gov.in/hcservices/ 15. In this case, such prospective activities, i.e., area identification exercise has been conducted by the technical team of the department of Geology and Mining and identified the areas and submitted a report on 06.03.1997. As the report is having significance in this case, we consider that the reproduction of the same is necessary : From To A.Palnivel, The Director of Geology Asst Director, and Mining, Dept. of Geology and Mining, Guindy, Chennai 32 Guindy, Chennai 32. Sir, Sub : Geological investigation work for multi coloured granted bearing areas in Madurai District–Report submitted – reg. Ref : Memo RC No.2291/B4/97 dated 13.2.97 from Director of Geology and Mining Chennai 32. As per the memo cited in the reference above, I proceeded to Madurai for taking up of geological investigation work for multi coloured granite bearing areas to be brought out for the ensuing tender cum auction system. As per the instruction of Deputy Director (Granite investigation) I have compiled the particulars of areas available for multi coloured granite bearing area in Madurai District as follows : 1)Areas preferred under the erstwhile rule 39 of TNMMCR 1959 for which Govt have rejected the application. 2) The areas already identified during the year 89-90 for bringing the areas under III phase tender. 3) Fresh areas 4) The areas covered under application by TAMIN In the above process a total extent 88.965 hectares of areas in parts of Idaiyapatti village in Madurai North Taluk, Thiruvathavoor, Keelavalavoo, https://hcservices.ecourts.gov.in/hcservices/ Kottampatti, Ayyapatti, Chokkalingapuram, Thiruchunnai, Kambur villages of Melur Taluk, A.Kokkulam village of Thirumangalam taluk, Sankarappanaickanur village of Usilampatti taluk have been identified. The list showing the areas for individual field are enclosed. Three coloured variety of raw silk, tiger skin and kashmir white granite have been identified. All the above areas identified for coloured granite are free from from any litigation as per available records in D.D (mines) office, Madurai. There are no permanent structures and habitation in the nearby areas. The Deputy Director of Geology and Mining, Madurai has been requested to arrange for obtaining the village records, FMB sketch and land availability reports for the areas identified for bringing them under tender cum auction system. Yours faithfully, Sd/- 6.3.97 Asst. Director Granite Areas inspected for bringing the areas under tender cum auction system. Sl.Taluk Village SF Total Proposed No. extent Extent in in hec in hec 1. Madurai North Idayapatti 78/3 1.83.5 1.83.5 & 11 2. " " 1/1 35.12.0 4.00.0 3. " " 80 59.37.5 4.00.0 4. " " 79 127.21.5 0.89.0 80 59.37.5 0.88.0 ---------- 1.97.0 ---------- 5. Melur Thiruvathavoor 556/1 13.15.0 2. 80.5 6. " " 525/1 41.64.5 6.00.0 A B 6.00.0 7. " " 535/2 1.33.0 1.33.0 8. " " 525/6,7 1.72.0 1.72.0 9. " " 529/1 0.64.0 0.64.0 10. " Keelavalavoo 272/1&4 2.38.0 2.38.0 https://hcservices.ecourts.gov.in/hcservices/ 11. " Kottampatti 140/1 11.33.5 6.00.0 12. " " 115/2A 13.01.0 6.00.0 13. " Ayyapatti 402 6.34.5 3.00.0 14. " " 498 3.72.0 1.65.0 15. " Chokkalingapuram 106 7.46.5 4.00.0 16. " " 477 25.61.5 10.00.0 17. " " 422 26.65.0 4.40.0 18. " Thiruchunai 83 3.03.5 3.03.5 19. " Kambur 32/2 -- 6.00.0 20. " Thirumangalam A.Kokkulam 1/1 18.35.0 10.00.0 21. " Usilampatti 84/1 6.76.0 2.00.0 Sakkarappanaickanur ---------- 88.965 ---------- Diary for the month of February 97 ...... 20.2.97 Madurai Idaiyapatti and back halt - inspected the granite bearing areas in SF.1/1,80, 79 and other surrounding fields. 21.2.97 Preparation of maps and report for the areas inspected. ........" 16. From the above, it is evident that the disputed quarry in this case, which is shown as Sl.No.2 in the report has been identified, demarcated on land and maps to that effect have been prepared. As per the map (sketch) appended to the report in respect of survey No.80 of Idayapatti village over an extent of 59.37.5 hectares, two areas have been identified and demarcated - one is over an extent of 4.00.0 hectares and another is 0.88.0 hectares. The area under dispute is found demarcated in square shape. Pursuant to the said report, the land availability report has been obtained from the Tahsildar, Madurai North, which is dated 24.06.1997. The report is in the form of format. Sl. No.12 of the format requires details about fresh FMB sketch and combined sketch in triplicate prepared by the surveyor and the details of the recommendations for grant of lease, encroachments, nearby houses, electric lines, near water courses, approach road facility, etc., to be marked in the sketches in colour and the https://hcservices.ecourts.gov.in/hcservices/ sketches should be attested by the Tahsildar. Against that serial number, it is stated that fresh FMB sketch in triplicate has been enclosed and there is no objection from the public. In the plan appended to the land availability report in respect of S.No.80 (Part) also, the area identified has been demarcated with specific measurements on all sides. The two areas demarcated in the plan appended to the land availability report are identical as that of the (area) plan appended to the "Area identification report" submitted by the Assistant Director of Geology and Mining. The disputed land is only in square shape. 17. On the basis of these two reports, the District Collector has sent a proposal to the Government for approval of the said area to be brought under tender-cum-auction system through the Director of Geology and Mining, by his letter dated 08.08.1997. The Government by its proceedings dated 14.10.1997 has granted its approval. Pursuant to the same, the District Collector caused a publication in the Madurai District Gazette dated 04.11.1997 in issue No.13. The quarries offered for tender cum auction in the Schedule to notification is exactly the re- production of the quarries identified and demarcated by the Assistant Director of Geology and Mining in his "Area identification report dated 6.3.1997" which is extracted above barring four areas i.e., Kambur, A.Kokulam and Sakkarappanaickanur and Kizhavalavu. So far as the disputed quarry in the survey Number 80 (Part) is concerned, there is no difference in the area. 18. Pursuant to the notification, the appellant filed his tender application in the form prescribed in Appendix VI under Rule 8A. Sl. No.10 of the Form requires the applicant to state the details of the area for which tender application was made. In its application the appellant has stated in col. III 'the village' as Idayaaptti village, in col. IV, survey number 80 (part) and in column V, area in hectares, the appellant has stated as 4.00.0 hectares. In respect of the column 'any other particulars which the applicant wishes to furnish', the appellant has stated that the Government should hand over the leasehold area for peaceful possession and operation of quarry without any restriction/objection by any of the Government departments and without any unauthorised encroachments. The Government should also provide proper area for formation of roads to approach the quarry to conduct quarrying operations as well as to transport the blocks without any problem or any difficulty. It also declared in the Form that the particulars furnished by the appellant are correct and the appellant is ready to furnish any other details and security deposit as may be required by the https://hcservices.ecourts.gov.in/hcservices/ department or District Collector and it further sweared that it knows very well about the provisions contemplated under the Tamil Nadu Minor Mineral Concession Rules, 1959 in respect of granting of quarry lease and other conditions stipulated in connection with the quarrying and other operations. Thus, the statutory requirements as provided in the Tamil Nadu Minor Mineral Concession Rules, 1959 has been complied with by the respondents in this case. The appellant also submitted its tender application as required by the rules without any doubt about the area