IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.09.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.22625 of 2009 and M.P.No.2 of 2009 R.Santhosham ...Petitioner Vs. 1.State of Tamil Nadu, Rep. By its Secretary to Government, Industries Department, Fort St.George, Chennai -9. 2.The Director of Geology and Mining Guindy, Chennai -32. 3.The District Collector Ariyalur District Ariyalur ...Respondents Writ Petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified mandamus calling for the records on the file of the 3rd respondent in his proceeding in R.C. No. 2632/G&M/2008 dated 13.1.2009 quash the same and direct the respondents herein to grant refund of proportionate lease amount for the unexpired period of 31 months and 2 days in respect of sand quarry situated in S.F. No.302 (part) over an extent of 10.00.0 Hectares in Sannasinallur Village, Sendurai Taluk, Perambalur District as per the order of the Honourable Supreme Court of India in C.A. No. 5572-5644/2005 dated 24.3.2006. For Petitioner : Mr.K.R.Krishnan For Respondents : Mr.V.Subbiah, Spl.G.P O R D E R The petitioner has filed the present writ petition, seeking to challenge an order dated 13.01.2009 passed by the third respondent viz., the District Collector, Ariyalur and after setting aside the same seeks for a direction to the respondents to grant refund of https://hcservices.ecourts.gov.in/hcservices/ proportionate lease amount for the unexpired lease period of 31 months and 2 days in respect of sand quarry situated in S.F. No.302 (part) to an extent of 10.00.0 Hectares in Sannasinallur Village, Sendurai Taluk, Perambalur District as per the orders of the Supreme Court in C.A.Nos.5572-5644/2005 dated 24.3.2006. 2. When the writ petition came up for admission on 09.11.2009, this Court directed the learned Additional Government Pleader to take notice. Subsequently, the the writ petition was admitted on 11.01.2010. Initially, the application for grant of interim direction was dismissed for default on 05.02.2010. Subsequently on an application being filed in M.P.No.1 of 2010, the same was restored vide order dated 13.04.2010. But no orders have been passed in the application for interim direction. 3.On notice from this Court, the respondent District Collector has filed a counter affidavit dated 21.03.2011. 4. The case of the petitioner was that he was granted lease for quarrying sand in respect of S.F.No.302(part) to an extent of 10.00.0 Hectares in Sannasinallur Village. The lease is for a period of three years commencing from 28.08.2003 to 24.08.2006 and necessary lease deed was executed in favour of the petitioner on 25.08.2003. In the meanwhile, the State Government issued G.O.Ms.No.95 Industries Department, dated 01.10.2003, by which sand quarrying, both in respect of Revenue and Patta lands were cancelled and the right to quarry vested with the State Government. The said GO came to be challenged by the lessees before this Court. A Division Bench of this court in W.A.Nos.3241 of 2003 and batch cases by a judgment dated 11.05.2004 partially upheld the GO with certain directions in favour of the lessees. 5. Aggrieved by the same, the State Government preferred appeals before the Supreme Court. The Supreme Court vide its judgment in State of T.N. v. P.Krishnamurthy reported in (2006) 4 SCC 517 dismissed the appeals. The State Government filed a Review Petition before the Supreme Court and the same was also dismissed on 29.11.2006. After dismissal of the Review petition, the State Government issued consequential proceedings for implementing the orders of the Supreme Court. Accordingly, the third respondent has issued proceedings dated 02.01.2007 and permitted the petitioner to carry on quarrying operation for a period of six months from 20.01.2007 to 19.07.2007. 6. It was stated that prior to the issuance of G.O.Ms.No.95 dated 01.10.2003, as per the original lease agreement, the petitioner could carry on quarrying operations only for 38 days from August 2003 to October 2003. After the orders of the Supreme Court dated 24.03.2006, he had quarried for a period of 6 months. Out of 36 months lease granted, the petitioner was able to carry on quarrying only for a period of one month and 2 days. Hence, it is contended that the petitioner is entitled to get refund of https://hcservices.ecourts.gov.in/hcservices/ proportionate amount for the unquarried period of 31 months and 2 days. It was stated that at the time of executing the lease deed, he had deposited Rs.32,00,000/- towards lease amount, Rs.3,20,000/- towards Security Deposit and Rs.1,000/- towards area assessment. 7. It was stated that as per Rule 38-A of the Tamil Nadu Minor Mineral Concession Rules 1959, the petitioner is entitled for the refund of the proportionate lease amount for the unexpired period of lease. The petitioner made a representation dated 11.09.2008 requesting the third respondent for refund of the said amount. Since the representation has not been disposed of, the petitioner filed a writ petition being W.P.No.24609 of 2008, seeking for a direction to refund the said amount. This Court by an order dated 14.10.2008 directed the respondents to dispose of the petitioner's representation. It is pursuant to the said direction, the impugned order came to be passed on 13.01.2009. 8. In the impugned order, it was indicated that it is only such of those persons whose leases were subsisting on 02.10.2003 and whose activities were stopped with effect from that date will be entitled to carry on the quarrying activities for a period of six months or for the actual unexpired period of lease, whichever is less. Therefore, the benefit will be available to those who have got orders of Court for grant of mining leases, but where mining leases were not executed for one reason or the other and that the State Government was at liberty to prematurely terminate the leases for any one of the causes mentioned in Section 4A(2) by giving notice and hearing under Section 4A(3), if they want to terminate the leases within the said period of six months. 9. Subsequent to the judgment of the Supreme Court in P.Krishnamurthy's case (cited supra), the lease area in S.F.No.302 (Part) in Sannasinallur Village was re-surveyed and demarcated by the officials of the Revenue, Survey, Public Works Department and Mines Department in the presence of the petitioner. Based on the direction of the Supreme Court, he was given permission to quarry sand for a further period of six months from 20.01.2007 to 19.07.2007 subject to the provisions of the Act. The direction for refund will apply only in case where persons were prevented from continuing the quarry operation, but not for persons who were subsequently allowed to complete their term, to them the judgment is silent. Therefore, the petitioner is not eligible for refund of any lease amount. It was also stated as against the order passed by the District Collector, the petitioner has a remedy by way of appeal to the Commissioner of Geology and Mining under Rule 36-C(2) of the Tamil Nadu Minor Mineral Concession Rules 1959 and he had not availed any such remedy. 10. The operative portion of the judgment of the Supreme court in P.Krishnamurthy's case (cited supra) reads as follows:- "36. In regard to mining leases subsisting as on 2- 10-2003, we have read down Rule 38-A as terminating https://hcservices.ecourts.gov.in/hcservices/ such leases in terms of the contract (lease deeds) by six months, without assigning cause and without any liability to pay compensation. Such of those writ petitioners (the respondents herein) whose leases were subsisting on 2-10-2003 (and whose activities were stopped with effect from that day) will be entitled to carry on the quarrying activities for a period of six months or for the actual unexpired period of the lease (as on 2-10- 2003), whichever is less. This benefit will be available to even those who have orders of the court for grant of mining leases, but where mining leases were not executed for one reason or the other. It is, however, made clear that the State Government is at liberty to prematurely terminate the leases for any of the causes mentioned in Section 4-A(2), by giving a notice and hearing under Section 4-A(3), if they want to terminate any lease within the said period of six months. 37. We, accordingly, allow these appeals in part. In place of the conditions stipulated by the Division Bench while upholding the validity of Rule 38-A, we hold and direct as follows: (i) That part of Rule 38-A which vests the exclusive right to quarry sand, in the State Government, is upheld. (ii) That part of Rule 38-A which purports to terminate quarrying leases/permissions forthwith (from 2-10-2003) is read down in terms of para 26 above. (iii) The provision in Rule 38-A for refund of proportionate lease amount for the unexpired period of lease and unadjusted seigniorage fee, shall remain undisturbed. (iv) It is made clear that except to the limited relief as a consequence of reading down as per para 26 above, the respondents will not be entitled to any other reliefs which have been granted by the High Court. (v) Parties to bear their respective costs" 11. Therefore, if it is seen in the light of the said judgment and the explanation offered by the respondents, this Court do not find any case is made out for ordering refund of the unexpired portion of the lease amount. The petitioner had the benefit of six months quarrying subsequent to the judgment of the Supreme Court. Therefore, he was not a person, who was prevented from quarrying sand after the termination of lease. The petitioner has also not filed any appeal against the said order passed by the respondents. 12. In the light of the above, writ petition stands dismissed. https://hcservices.ecourts.gov.in/hcservices/ However, there will be no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki To 1.The Secretary to Government, Industries Department, Fort St.George, Chennai -9. 2.The Director of Geology and Mining Guindy, Chennai -32. 3.The District Collector Ariyalur District, Ariyalur 1 CC to Mr.K.R.Krishnan, Advocate, S.R.No.58511 1 cc To The Government Pleader, SR.59039 ORDER IN W.P.No.22625 of 2009 KK(CO) SRA(28/9/2011) https://hcservices.ecourts.gov.in/hcservices/