IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 29.09.2010 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NO.3091 OF 2003 1.S.Ramasamy Fit Person / Executive Officer Arulmighu Thanneer Kattu Perumal Thirukoil Veerachipalayam Village & Post Sankari Taluk Salem District – 637 303. 2.P.Kuppuswamy Hereditary Trustee Arulmighu Mariamman Thirukoil Kumaragoundampalayam Padaiveedu Post Sankari Taluk Salem – 637 303. .. Petitioners Versus 1.Union of India Represented by its Secretary Ministry of Coal and Mines Department of Mines New Delhi. 2.Government of Tamil Nadu Represented by its Secretary Department of Industries Fort St.George Chennai – 600 009. 3.Commissioner Hindu Religious and Charitable Endowments Department Nungambakkam Chennai – 600 034. 4.M/s.Karuna Mines & Minerals Represented by its Partner, E.Jayaraman No.32-B, West Street Komaraswamypatty Salem – 632 007. https://hcservices.ecourts.gov.in/hcservices/ 5.E.Jayaraman .. Respondents PRAYER: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of certiorari, calling for the records of the respondents culminating in the "present impugned order" of the first respondent dated 24.12.2002, bearing reference : Final Order No.138/2002 in Revision Application File No.27/29/2001/Rc-II, quash the same. For Petitioners : Shri.M.Sundar R-1 : No Appearance For Respondent-2 : Shri.N.Senthil Kumar, AGP For 3rdRespondent : Shri.T.Chandrasekaran Special Government Pleader For Respondents-4 : Shri.A.Thiagarajan Senior Counsel for Shri.M.Muthappan O R D E R In order to appreciate the issues involved in this writ petition, the factual matrix needs to be placed on record. 2.The lands admeasuring an extent of 20.80 acres comprised in Survey No.48/2 (part) in Veerachipalayam Village, Sankari Taluk, Salem District, have been owned jointly by two temples namely, Arulmighu Thanneer Kattu Perumal Thirukoil and Arulmighu Mariamman Thirukoil, the petitioners herein. 3.The petitioner temples are governed by the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as "H.R.&C.E. Act") right from the year 1966 and even prior to it. A letter was issued by two of the three trustees of the 2nd petitioner temple stating that consent has been given for the removal of limestone from the land situated in Survey No.48/2 in 14 acres belonging to the petitioners out of 20 acres and payment for the same at Rs.500/- per year. 4.After obtaining the said consent, an application was made by the respondent No.4 for the grant of mining lease to a large extent of area including the 14 acres belonging to the petitioners. By the Government Order passed in G.O.Ms.No.1109, Industries Department, dated 06.08.1974, the respondent No.2 granted permission to mine limestone to the respondent No.4 for a period of 20 years and a lease deed was executed on 23.09.1974. In the meanwhile, the Assistant Commissioner, H.R.&C.E. Board, Salem, recommended to the 3rd https://hcservices.ecourts.gov.in/hcservices/ respondent for the grant of consent by way of permission, since under Section 34 of the H.R.&C.E. Act, the 3rd respondent is the competent authority. However, no such permission was given and no order was passed. 5.On 15.07.1993, the respondent No.4 made an application seeking for renewal. Thereafter, a letter was sent on 10.02.1994 to the 3rd respondent seeking a letter of consent and the extension of lease for a period of 5 years from 24.09.1994. In the said letter, it has been stated that it has been paying a sum of Rs.500/- per year for a period of 20 years and it is ready and willing to pay Rs.1,000/- per year. The said request was rejected by the respondent No.3 and a report has been called for as to why even after the expiry of 20 years, the respondent No.4 was allowed to do the quarrying operation. 6.In pursuant to the order dated 08.10.1997, the 1st petitioner temple directed the 4th respondent to stop the mining operation. The petitioner temples also initiated auction proceedings. The auction was conducted and the respondent No.5 who is none other than a partner of the respondent No.4 became the successful bidder knocking the auction for a sum of Rs.50,00,000/- as against the earlier sum of Rs.500/- per year paid by the respondent No.4. However, the respondent No.4 filed writ petitions in W.P.Nos.10797 of 1998, 10798 of 1998 and 12461 of 1998 respectively, challenging the order passed by the 1st respondent, directing to stop the mining operation; seeking a direction to restrain the petitioners for bringing the surface rights to the public auction; and challenging the public auction. By the common order dated 17.09.1998, the writ petitions have been dismissed as infructuous. 7.The respondent No.2 in G.O.(D)No.273, Industries (MMD.I) Department, dated 02.09.1998 has rejected the renewal sought for by the respondent No.4 by holding that there is no consent in the eye of law and Section 34 of the H.R.&C.E. Act has been violated. Consequently, the District Collector, Salem, directed the respondent No.4 to stop the mining operation. A revision was filed by the respondent No.4 in which the Assistant Commissioner, H.R.&C.E., Salem, filed an application for impleadment. An interim order was passed in the revision not to create any third party rights but not satisfied with the same, the respondent No.4 approached the Honourable High Court which permitted it to do the mining operation on payment of Rs.1,00,000/- per month. The revision was allowed in favour of the respondent No.4 and challenging the same, the petitioners filed a writ petition in W.P.No.7777 of 1999. The Honourable High Court has held that the matter will have to be considered by the respondent No.2 on merits without being influenced by the order of the respondent No.1 by hearing all the parties including the petitioners. https://hcservices.ecourts.gov.in/hcservices/ 8.The respondent No.2 once again rejected the renewal by holding that there is no consent in the eye of law in as much as the erstwhile trustees were not competent to give such a letter contrary to the provisions contained in Section 34 of the H.R.&C.E. Act and such a letter cannot be relied upon by the respondent No.4 for seeking renewal as well. However once again the revision filed by the respondent No.4 was allowed by holding that the petitioners have no locus standi and the consent given by some of the erstwhile trustees of one of the petitioner temples is a valid consent and the petitioners are estopped from questioning the same. Challenging the said order in the revision, the petitioners have filed the present writ petition. 9.Submissions of the petitioners: 9.1.Shri.M.Sundar, learned counsel appearing for the petitioners submitted that the consent said to have been given by two of the three erstwhile trustees of the 2nd petitioner temple is not a consent in the eye of law. The said consent is in total contravention of Section 34 of the H.R.&C.E. Act. It is further submitted that the auction has fetched a sum of Rs.50,00,000/- and it would show that the respondent No.4 has in fact enriched itself at the cost of the petitioners and attempting to do so further. There is no formal lease deed between the parties except the alleged letter of consent given by two of the three trustees of the 2nd petitioner. 9.2.It is further submitted that admittedly, the property belongs to the petitioners jointly and the consent is also not valid consent in as much as no permission in whatever manner has been obtained from the 2nd respondent. In so far as the reliance made on behalf of the respondent No.4 under Rule 22(B) of the Mineral Concession Rules, 1960 is concerned, the learned counsel submitted that the same cannot be construed to mean that a consent given once would be made applicable for ever. 9.3.The learned counsel also submitted that Rule 22 is different from Rule 24 and therefore the conditions stipulated in condition No.2(xA)(a) in Form-J under Rule 24(A) has to be complied with by getting the consent from the owner of the surface land while seeking renewal. The learned counsel also submitted that there is no vested right on the respondent No.4 to seek renewal more so when an objection is raised by the respondent No.3 and the petitioners. Therefore, the learned counsel submitted that the writ petition will have to be allowed. 10.Submissions of the respondent no.4:- 10.1.Shri.A.Thiagarajan, learned senior counsel appearing for the 4th respondent submitted that when the lease was granted for a period of 20 years in the year 1974, the same was not objected or https://hcservices.ecourts.gov.in/hcservices/ challenged by the petitioners. There was also no challenge to the consent obtained from the erstwhile trustees of the 2nd petitioner. Therefore, it is not open to the petitioners to challenge the same and they are estopped from doing so. On the construction of Rule 22 vis-a-vis Rule 24(A), the learned senior counsel submitted that Rule 22 is also applicable to the renewal and Rule 22(3)(h) specifically provides that a consent given during the grant of lease will have to be extended for the period of renewal as well. Therefore, the learned senior counsel submitted that no interference needs to be called for as the 1st respondent has taken into consideration of all the relevant materials before passing the order impugned. 11.Heard Shri.M.Sundar, learned counsel appearing for the petitioners, Shri.N.Senthil Kumar, learned counsel appearing for the respondent No.1, Shri.T.Chandrasekaran, learned Special Government Pleader appearing for the respondents Nos.2 and 3 and Shri.A.Thiagarajan, learned senior counsel appearing for the respondent No.4. 12.The facts as narrated earlier are not in dispute. Admittedly, a letter was obtained giving consent from the two of the three trustees of the 2nd petitioner alone. Therefore, the 3rd trustee of the 2nd petitioner has not signed the consent letter and the 1st petitioner has not given any consent. It is also an admitted fact that the lands belong to both the petitioners jointly. The respondent No.4 clearly understood the provisions of the H.R.&C.E. Act and that is the reason why a request was made seeking consent from the 3rd respondent through the Assistant Commissioner, H.R.&C.E. 13.However even without a proper consent the Government Order was passed and a lease deed was executed granting mining lease for a period of 20 years. It is also to be seen that the government order deals with number of areas other than the petitioners land. Even the so called consent letter written on unregistered non- judicial stamp paper says that it is given for 25 years and no more. The respondent No.4 himself has sought for the subsequent consent from the 3rd respondent while seeking renewal for a period of 5 years only. The order of the 3rd respondent rejecting the request for consent has not been challenged. The respondent No.4 has also indulged in continuous quarrying operation even after the expiry of lease and the expiry of period of consent. The above said facts speak for themselves and they do not need any elaboration. It is a well established principle of law that no one has got any accrued or vested right in doing any operation in mining contrary to provisions of the Act and Rules. 14.Application of Section 34 of the H.R.&C.E. Act, 1959:- 14.1.Section 34 of the H.R.&C.E. Act is extracted hereunder for the better appreciation of the issue involved: https://hcservices.ecourts.gov.in/hcservices/ "34.ALIENATION OF IMMOVABLE TRUST PROPERTY: (1) Any exchange, sale, or mortgage and any lease for a term exceeding five years of any immovable property, belonging to, or given or endowed for the purposes of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. Provided that before such sanction is accorded, the particulars relating to the proposed transaction shall be published in such manner as may be prescribed, inviting objections and suggestions with respect thereto; and all objections and suggestions received from the trustee or other persons having interest shall be duly considered by the Commissioner. EXPLANATION: Any lease of the property above mentioned though for a term not exceeding five years shall, if it contains a provision for renewal for a further term (so as to exceed five years in the aggregate), whether subject to any condition or not, be deemed to be a lease for a period exceeding five years. (2) When according such sanction, the Commissioner may impose such conditions and give such directions as he may deem necessary regarding the utilisation of the amount raised by the transaction, the investment thereof and in the case of a mortgage, regarding the discharge of the same within a reasonable period. (3) A copy of the order made by the Commissioner under this section shall be communicated to the Government and to the trustee and shall be published in such manner as may be prescribed. (4) The trustee may within three months from the date of his receipt of a copy of the order, and any person having interest may, within three months from the date of the publication of the order, appeal to the Government to modify the order or set it aside. (5) Nothing contained in this section shall apply to the inams referred to in Section 41." https://hcservices.ecourts.gov.in/hcservices/ 15.A perusal of the above said section would show that a transaction involved in an immovable property without the sanction of the 3rd respondent as being necessary or beneficial to the institution concerned would be a nullity and a void one. Thus, it is clear that in the absence of any consent from the 3rd respondent, the alleged consent said to have been given by the erstwhile trustees is not a consent in the eye of law. Section 34 of the H.R.&C.E. Act is mandatory in nature and even for exercising such a power by the 3rd respondent conditions have been imposed which have to be complied with and thereafter on being satisfied with the same alone, the respondent No.3 can sanction the transaction. Therefore on a appreciation of Section 34 of the H.R.&C.E. Act and applying to the same on the facts on hand, it is crystal clear that there was no consent given in favour of the respondent No.4. Hence in as much as there is no consent in the eye of law such a consent cannot be extended to the renewal sought for by the respondent No.4. 16.It is a well established principle of law that there is no estoppel against a statute. Further the principle of estoppel cannot be raised against the 3rd respondent who is the competent authority and who has not given any consent earlier. As observed earlier, the 1st petitioner admittedly was not a party to the alleged consent. If at all the principle of estoppel can be applied it has to be applied against the respondent No.4 that for the reasons known to him, after making an application in the year 1974 has not pursued the same before the respondent No.3 and again thereafter in the year 1994 has not chosen to challenge the rejection of consent by the respondent No.3. Therefore in as much as there is no consent in the eye of law, the question of estoppel does not arise for consideration, since there is no estoppel against a void transaction. 17.Scope of Rule 22(3)(h) vis-a-vis Rule 24(A) of the Mineral Concession Rules, 1960. 17.1.In order to appreciate the Interpretation of Rule 22 (3)(h) and Rule 24(A) of the Mineral Concession Rules, 1960, it is worthwhile to extract the above said provisions: "22(3)(h) a statement in writing that the applicant has, where the land is not owned by him, obtained surface rights over the area or has obtained consent of the owner for starting mining operations: Provided that no such statement shall be necessary where the land is owned by the Government: https://hcservices.ecourts.gov.in/hcservices/ Provided further that no such consent of the owner for starting mining operations in the area or part thereof may be furnished after execution of the lease deed but before entry into the said area: Provided also that no further consent would be required in the case of renewal where consent has already been obtained during grant of the lease." "24(A).Renewal of mining lease.-(1) An application for the renewal of a mining lease shall be made to the State Government in Form J, at least twelve months before the date on which the lease is due to expire, through such officer or authority as the State Government may specify in this behalf." 17.2.Rule 22 provides for an application for grant of a mining lease. It also provides for an application to be made in specific Forms while applying for grant of mining lease and also for the grant of renewal of mining lease. For the grant of mining a fresh lease Form-1 is prescribed. Similarly, for the grant of a renewal of a mining lease Form-J is prescribed under Rule 24(A) of the Mineral Concession Rules, 1960. Rule 22 also speaks about the requirements to be accompanied in the application for the grant of renewal. The requirements are also applicable to the fresh lease as well as the renewal. Rule 22(3)(h) mandates that a consent is required from the land owner. Therefore such a consent is mandatory under the rules. The proviso to Rule 22(3)(h) speaks about not requiring further consent when consent has already been obtained during the grant of lease. In other words when there is a consent already obtained during the grant of lease which continuous to be in force, then no further consent is required while seeking renewal for the reason the said consent is also covering the period of renewal. 17.3.Therefore the rule prescribes that when there is a valid and proper consent covering the period of renewal as well, the procedural formality of getting a further consent once again for renewal is not required. This position has been made clear by a perusal of Form-J which is applicable to the renewal. Form-J specifically provides as follows: "[(xA)(a) Does the applicant continue to have surface rights over the area of the land for which he requires renewal of the mining lease. https://hcservices.ecourts.gov.in/hcservices/ (b) If not, has he obtained the consent of the owner and occupier for undertaking mining operations. If so, the consent of the owner and occupier of the land obtained in writing be filed." 17.4.The above said prescription would makes it very clear that a consent is not required for renewal only when the same has already been given during the lease period covering the period of renewal sought for. Therefore, a combined reading of Rule 22(3)(h) and Rule 24(A) read with Form-J makes it clear that in a case where the consent expires a fresh consent has to be obtained. Further, the 2nd proviso to Rule 22(3)(h) makes it very clear that without a consent the lessee cannot indulge in quarrying operation. Hence, a right to quarry mandates a valid consent which is a prerequisite and a condition precedent. 18.It is a well established principle of law that provisions will have to be construed in such a way that they are made to work supplementing and supporting each other. Such an harmonious construction is the proper and the best way of interpretation. A simple natural, literal, clear and unambiguous interpretation will have to be given to the provisions to make them workable. An interpretation which results in absurdity in meaning will have to be eschewed as against a natural and proper interpretation which makes the provisions workable. 19.If the interpretation given by the learned senior counsel for the 4th respondent is accepted then it can only mean that once a consent is given the same would continue for eternity for successive renewals. Admittedly, in the present case on hand even assuming the consent is true and genuine it was given only for 25 years right from the date of the quarrying operation and not beyond the same. By interpreting in the way the learned senior counsel wants this Court to read would mean causing irreparable damage to the petitioners and it amounts to extending the lease between the petitioners and the respondent No.4 by force and against the wishes of the owners. Admittedly in the present case on hand there is no agreement whatsoever about the terms and conditions of the lease between the petitioners and the respondent No.4 except a hand written letter said to have been given by the two of the three erstwhile trustees of the 2nd petitioner. There is also no consent for renewal. Further even the 4th respondent itself has sought for consent for only five years. 20.In UNION OF INDIA v. ALOK KUMAR [(2010) 5 SCC 349], the Honourable Apex Court applying the rule of contextual interpretation and harmonious interpretation has observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "61.It will be useful to apply the rule of contextual interpretation to the provisions of Rule 9. It would not be permissible to import any meaning or make additions to the plain and simple language of Rule 9(2) in relation to "other authority". The rule of contextual interpretation requires that the court should examine every word of the statute in its context, while keeping in mind the Preamble of the statute, other provisions thereof, pari materia statutes, if any, and the mischief intended to be remedied. Context often provides a key to the meaning of the word and the sense it carries. 62.It is also a well established and cardinal principle of construction that when the rules and regulations have been framed dealing with different aspects of the service of the employees, the courts would attempt to make a harmonious construction and try to save the provision, not strike it down rendering the provision ineffective. The court would normally adopt an interpretation which is in line with the purpose of such regulations. The rule of contextual interpretation can be purposely applied to the language of Rule 9(2), particularly to examine the merit in the contentions raised by the respondent before us. The legislative background and the object of both the Rules and the Act is not indicative of any implied bar in appointment of former employees as enquiry officers. These principles are well established and have been reiterated with approval by the courts, reference can usefully be made to the judgments of this Court in Gudur Kishan Rao v. Sutirtha Bhattachaarya, Nirmal Chandra Bhattacharjee v. Union of India, Central Bank of India v. State of Kerala, Housing Board of Haryana v. Employees' Union." 21.MAXWELL ON INTERPRETATION OF STATUTES (12th Edn., page 228), under the caption 'modification of the language to meet the intention' in the chapter dealing with 'Exceptional Construction' states as follows: "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or https://hcservices.ecourts.gov.in/hcservices/ injustice, which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftman's unskillfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used." 22.Further, the Honourable Apex Court in TIRATH SINGH v. BACHITTAR SINGH [AIR 1955 SC 830] has observed as follows: "....if one construction will lead to an absurdity while another will give effect to what common-sense would show was obviously intended, the construction which would defeat the ends of the Act must be rejected even if the same words used in the same section, and even the same sentence, have to be construed differently. Indeed, the law goes so far as to require the Courts sometimes even to modify the grammatical and ordinary sense of the words if by doing so absurdity and inconsistency can be avoided." 23.The above said reasoning of the