IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 2.3.2010 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMARAO AND THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR Writ Petitions No.4227, 4638, 13724 and 21852 of 2008 and M.P.No.1 of 2010 in W.P.No.4638 of 2008 A.Kumar ... Petitioner in W.P.No.4227/2008 R.Gurunathan ... Petitioner in W.P.No.4638/2008 G.Krishna Mohan Rao ... Petitioner in W.P.No.13724/2008 P.Mariadoss ... Petitioner in W.P.No.21852/2008 Vs. The District Collector, Kancheepuram, Kancheepuram District ... Respondent in all the W.Ps. * * * M.P.No.1 of 2010 in W.P.No.4638 of 2008: 1.E.Sekar 2.K.S.Mohan ... Petitioners/Proposed Respondent Vs. 1.R.Gurunathan 2.The District Collector, Kancheepuram, Kancheepuram District ... Respondents/Petitioner and Respondent W.P.No.4227 of 2008 has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus , praying to forbear the respondent, his agents, subordinates and men from in anyway interfering with the petitioner's right to continue quarry operations in respect of petitioner's blue metal Quarry No.3B, measuring 1.30.0 hectares, comprised in S.No.234/2 of Tiruneermalai village, Tambaram Taluk, Kancheepuram District and consequently to transport the quarried material on payment of seigniorage fee, for a period of five years from 20.2.2008 to 19.2.2013 as per Rule 8(8) of the Tamil Nadu Minor Mineral Concession Rules, 1959. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.4638 of 2008 has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, to forbear the respondent, his agents, subordinates and men from in anyway interfering with the petitioner's right to continue quarry operations in respect of petitioner's blue metal Quarry No.2 measuring 1.82.0 hectares, comprised in S.No.234/2 of Tiruneermalai village, Tambaram Taluk, Kancheepuram District and consequently to transport the quarried material on payment of seigniorage fee, for a period of five years from 26.2.2008 to 25.2.2013 as per Rule 8(8) of the Tamil Nadu Minor Mineral Concession Rules, 1959. W.P.No.13724 of 2008 has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus to call for he records comprised in the proceedings of the respondent dated 20.5.2008 in RC.No.555/05-Q1, and quash the same and consequently direct the respondent to issue necessary sanction to the petitioner, by granting stone quarry lease in respect of Quarry No.1 in Survey No.234/2 in Thiruneermalai village, Tambaram Taluk, Kancheepuram District, measuring 1.12.0 hectares for a further period of five years beyond 31.1.2008 in compliance with Rule 8(8) of the Tamil Nadu Minor Minerals and Concession Rules, so as to enable the petitioner to quarry and transport the quarried materials on payment of seignorage fee and other charges. W.P.No.21852 of 2008 has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, praying to forbear the respondent, his agents, subordinates and men from in anyway interfering with the petitioner's right to continue quarry operations in respect of petitioner's blue metal quarry No.3A, measuring 1.30.0 hectares, comprised in S.No.234/2 of Tiruneermalai village, Tambaram Taluk, Kancheepuram District and consequently to transport the quarriedmaterial on payment of seigniorage fee, for a period of five years from 16.9.2008 to 15.9.2013 as per Rule 8(8) of the Tamil Nadu Minor Mineral Concession Rules, 1959. M.P.No.1 of 2010 in W.P.No.4638 of 2008 has been filed praying to implead the petitioners as party respondents 2 and 3. * * * For petitioner in : Mr.R.Thiyagarajan, W.P.No.4227/2008 : Sr.Counsel for Mr.P.Arivudainambi For petitioner in : Mr.V.T.Gopalan, Sr.Counsel for W.P.No.4638/2008 : Mr.K.Ramakrishna Reddy For petitioner in : Mr.N.R.Chandran, Sr.Counsel for W.P.No.13724/2008 Mr.B.K.Singh https://hcservices.ecourts.gov.in/hcservices/ For petitioner in : Mr.N.Jothi, for W.P.No.21852/2008 : Mr.V.Karthikeyan For respondent in : Mr.P.S.Raman, all the W.Ps. : Advocate General assisted by Mr.Thirugnanam, Spl.G.P. and Mr.L.S.M.Hasan Fazil, G.A. For petitioners in M.P.No.1/2010 in : M/s.T.Mohan & S.Devika W.P.No.4638/2008 * * * COMMON ORDER ELIPE DHARMARAO, J. Since all these matters are inextricably interconnected with each other, they were heard together and are disposed of by this common order. 2. The petitioners are the successful bidders for quarrying rough stone for a period of five years in Survey No.234/2 of Thiruneermalai village, Kancheepuram District, from the date of execution of lease deeds. The details of quarry number, extent, lease period etc. in respect of the writ petitioners are tabulated hereunder for better understanding Sl.No. Name of the lessee Quarry No. Extent Lease Period One time lease amount for first five years 1 A.Kumar (Petitioner in W.P.No.4227/2008) 3B 1.30.0 hect. 20.2.2003 to 19.2.2008 Rs.15 lakhs 2 R.Gurunathan (Petitioner in W.P.No.4638/2008) 2 1.82.0 hect. 26.2.2003 to 25.2.2008 Rs.72 lakhs 3 G.Krishna Mohan Rao (Petitioner in W.P.No.13724 of 2008) 1 1.12.0 hect. 1.2.2003 to 31.1.2008 Rs.75,60,000 https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Name of the lessee Quarry No. Extent Lease Period One time lease amount for first five years 4 P.Mariadoss (Petitioner in W.P.No.21852 of 2008) 3A 1.30.0 hect. 16.9.2003 to 15.9.2008 Rs.31 lakhs 3. The case of the petitioners, in one voice, is that though the lease deeds were executed during February, 2003 (and in respect of W.P.No.21852of 2008 it during September, 2003), since they have to do preliminary works like cleaning the quarry and effect other such incidental developmental activities in the quarry, they could not commence the quarrying operations and in the process substantial time has elapsed. The petitioner's further case is that their quarries have been carved out from and out of the major extent of old quarry or earlier quarry and thus only a smaller portions, that is bits of portions of virgin quarry forming part of the larger extent of area in favour of the petitioners and the said area is fully a virgin area, having not been subjected to quarrying till the date of grant of lease to the petitioners; that the subject matter of the quarry has been sub-divided only in the year 2003 i.e. prior to the conduct of the public auction held on 8.1.2003 mainly for the purpose of granting more number of leases in the same survey number, by dividing number of quarries so as to get more revenue to the Government. 4. The petitioners would further contend that pursuant to G.O.Ms.No.391, dated 17.11.2000, an amendment was brought into Rule 8 (8) of the Tamil Nadu Minor Mineral Concession Rules, 1959. For the sake of convenience and better appreciation, we shall now extract the said Rule, which reads as under: "The period of lease for quarrying stone in respect of the virgin areas, which have not been subjected to quarrying so far, shall be ten years. The period of lease for quarrying stone in respect of other areas shall be five years. The period of lease for quarrying sand and other minor minerals,other than the minerals covered under Rules 8-A and 8-C of the said Rules, shall not exceed three years and shall not be less than one year and shall be subject to the following conditions, namely:- (i)The date of commencement of the period of lease granted under this Rule shall be the date on which the lease deed is executed (ii)The lease shall expire on the date specified in the lease deed and in no case extension of the period of lease shall be made." https://hcservices.ecourts.gov.in/hcservices/ 5. Placing heavy reliance on the above said Rule, the petitioners have sought for extension of the lease period for five more years in conformity with the above said Rule by submitting representations to the District Collector, Kancheepuram and in W.P.No.13724 of 2008, the said request of the petitioner therein was rejected by the District Collector, which is being impugned in that writ petition and in the other writ petitions, alleging that no orders have been passed by the District Collector on their representations, the petitioners have come forward to file the writ petitions. 6. Heard Mr.R.Thiyagarajan, learned senior counsel for Mr.P.Arivudainambi for the petitioner in W.P.No.4227 of 2008; Mr.V.T.Gopalan, learned senior counsel for Mr.K.Ramakrishna Reddy for the petitioner in W.P.No.4638 of 2008; Mr.N.R.Chandran, learned senior counsel for Mr.B.K.Singh for the petitioner in W.P.No.13724 of 2008; Mr.N.Jothi for Mr.V.Karthikeyan in W.P.No.21852 of 2008 and M/s.T.Mohan and S.Devika for the petitioners in the impleadment petition in M.P.No.1 of 2010 in W.P.No.4638 of 2008 and Mr.P.S.Raman, Advocate General assisted by Mr.Thirugnanam, Special Government Pleader and Mr.L.S.M.Hasan Fazil, Government Advocate for the respondent/State in all the writ petitions. 7. While on the part of the writ petitioners, it has been strenuously argued that the lands over which the quarry rights have been leased out to them are 'virgin lands' and therefore they are very well entitled to wreak the benefits under Rule 8(8) of the Tamil Nadu Minor Mineral Concession Rules, 1959 (hereinafter referred to as the Rules), on the part of the respondent/Government it has been submitted that the stone quarry lease was previously granted for a total extent of 77 acres in S.No.234/2 at Thiruneermalai to various persons and therefore the said quarry is an existing quarry, and there is no justification on the part of the petitioners in praying to grant extension of lease as virgin quarry. It has further been submitted on the part of the Government that the Government in their G.O.Ms.No.88, Industries, dated 18.10.2002 have amended the Rule 36 (1A) of the Rules, restricting the grant of lease within 300 meters from the residential area instead of the rule prohibiting the distance of 500 meters which were in existence earlier and in pursuance of the above said amendment, restricting the radial distance to 300 meters from the residential inhabitation site and also to get more revenue to Government for the benefit of the Panchayat, the admissible total area was divided into four parts as Quarry No.1 (1.12.0 hect.); Quarry No.2 (1.82.0 hect.); Quarry No.3A (1.30 hect.) and Quarry No.3B (1.30 hect.) and brought under tender- cum-public auction on 8.1.2003. It is the specific contention of the Government that the stone quarry lease in S.No.234 over an extent of 78.78 acres comprising the entire area in Thiruneermalai was granted to one K.Arunachalam s/o.Kannan, Thiruneermalai for a period of three https://hcservices.ecourts.gov.in/hcservices/ years for the period ending 30.6.1987 in Collector's proceedings Rc.1752/84 Q dated 2.8.1984 and subsequently the lease was granted to one Arumugam for the period ending 30.6.1994 and therefore, the quarries are not virgin as has been submitted on the part of the petitioners but are old ones, existing in the same location and the minerals were exploited for more than ten years prior to the occupation of the petitioners. 8. While these writ petitions are pending on the file of this Court, another Writ Petition in W.P.No.26985 of 2009 has been filed before this Court as a probono publico by the General Secretary of the Tamil Nadu Vivasayigal Sangam, Chennai, praying to issue a Writ of Declaration to declare that the leases granted to respondents 7 to 10 therein [A.Kumar (the petitioner in W.P.No.4227/2008) as R.7; R.Gurunathan (the petitioner in W.P.No.4638/2008) as R.8 and Mariadoss (the petitioner in W.P.No.21852/2008) as R.9] in Quarry Nos.1,2,3, 3A and 4 in S.No.234/2 in Thiruneermalai village, Tambaram Taluk, Kancheepuram District as illegal and consequently to direct the official respondents from in any manner permitting the respondents 7 to 10 therein from continuing to quarry in the said areas with appropriate directions for remediation of the site and compensation to restore the temple and the buildings and the health of the people of the said village. In this writ petition an impleadment petition was filed by one E.Sekar and S.Mohan, praying to implead them as respondents 11 and 12 and the said petition having been allowed by us, they were brought on record as respondents 11 and 12 therein. Though, at the first instance, the said writ petition No.26985 of 2009 was also tagged with the present writ petitions, as the issue involved appears to be similar for the reason that the quarry operations in the same survey number is in dispute, since the questions of law that are to be dealt with are quite different and different yardsticks and parameters are required to be adopted, the said writ petition No.26985 of 2009 was ordered to be de-linked from this batch of writ petitions and to post the same after the disposal of the present writ petitions. 9. In the present W.P.No.4638 of 2008 also, the above said E.Sekar and K.S.Mohan have filed a petition to implead them as respondents 2 and 3. Their case is that the quarry operations are being carried out without following any safety measures and at times during blasting operation, huge stones get thrown up into the village and hurt people and several persons have been injured due to this, further developing cracks in the ancient temple in the area and causing air and noise pollution and that necessary permission under Rule 36 of the Rules has not been obtained from the Railways or the Highways Department. The points urged by these persons are the points to be considered in the probono publico W.P.No.26985 of 2009 pending on the file of this Court, wherein these persons were already brought on record as party respondents. As has already been observed supra, the said writ petition was ordered to be posted after the https://hcservices.ecourts.gov.in/hcservices/ disposal of the present writ petitions, since the legal points that need to be considered are different in both these sets of writ petitions. Therefore, in our considered opinion, no purpose will be served by impleading these persons as party respondents to the present W.P.No.4638 of 2008. Hence, this petition is dismissed. However, the petitioners in M.P.No.1 of 2010 in W.P.No.4638 of 2008, can very well rake up all their pleas in W.P.No.26985 of 2009, wherein they have already been impleaded as party respondents. 10. Mr.V.T.Gopalan, the learned senior counsel appearing for the petitioner in W.P.No.4638 of 2008 would argue that since the lands are virgin lands, the Court can very well order extension of lease, by acceding to the request of the petitioners in these writ petitions and since the rights of the parties are as per the contract entered into, the State cannot claim any immunity and further since substantial period of time has elapsed in bringing the land fit for quarry operations, since being a virgin land, that period should also be taken into consideration. The learned counsel appearing for other writ petitioners also would argue on the same lines. 11. On behalf of the learned counsel appearing for the petitioners, the following judgments are relied on: 1. BABUBHAI MULJIBHAI PATEL vs. NANDLAL KHODIDAS BAROT AND OTHERS [(1974) 2 SCC 706] 2. HAR SHANKAR AND OTHERS vs. THE DY.EXCISE AND TAXATION COMMR. AND OTHERS [(1975) 1 SCC 737]; 3. NEW HORIZONS LIMITED AND ANOTHER vs. UNION OF INDIA AND OTHERS [(1995) 1 SCC 478]; 4. TAMIL NADU ELECTRICITY BOARD AND ANOTHER vs. N.RAJU REDDIAR AND ANOTHER [(1996) 4 SCC 551] 5. UNION TERRITORY, CHANDIGARH, ADMN. AND OTHERS vs. MANAGING SOCIETY, GOSWAMI, GDSDC [(1996) 7 SCC 665; 6. DWARIKESH SUGAR INDUSTRIES LTD. vs. PREM HEAVY ENGINEERING WORKS (P) LTD. AND ANOTHER [(1997) 6 SCC 450] 7. V.KARNAL DURAI vs. DISTRICT COLLECTOR, TUTICORIN AND ANOTHER [(1999) 1 SCC 475]; 8. STYLE (DRESS LAND) vs. UNION TERRITORY, CHANDIGARH AND ANOTHER [(1999) 7 SCC 89; 9. TVL SUNDARAM GRANITES vs. IMPERIAL GRANITES LTD. AND OTHERS [(1999) 8 SCC 150]; 10. S.GANESAN vs. DIST.COLLECTOR, TIRUCHIRAPALLI [JT 2002 (3) SC 90]; 11. BEG RAJ SINGH vs. STATE OF U.P. AND OTHERS [(2003) 1 SCC 726]; 12. SALIGRAM KHIRWAL vs. UNION OF INDIA AND OTHERS [(2003) 7 SCC 689]; 13. JAYASWALS NECO LIMITED vs. COMMISSIONER OF CENTRAL EXCISE, NAGPUR [(2007) 13 SCC 807] 14. A.SRINIVASAN AND 25 OTHERS vs. THE DISTRICT COLLECTOR, KANCHEEPURAM AND 9 OTHERS [2008 (3) CTC 800]; 12. In the first judgment cited above, reported in (1974) 2 SCC https://hcservices.ecourts.gov.in/hcservices/ 706, the Honourable Apex Court has held: "The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Article 226, it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner’s right of relief, questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition (see Gunwant Kaur v. Bhatinda Municipality (1969) 3 SCC 769 = AIR 1970 SC 802). If, however, on consideration of the nature of the controversy, the High Court decides, as in the present case, that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles, this Court would not interfere in appeal with the order made by the High Court in this respect." 13. In the second judgment cited above, reported in (1975) 1 SCC 737, the Honourable Apex Court has held: "The terms and conditions of auctions were announced before the auctions were held and the bidders participated in the auctions without a demur and with full knowledge of the commitments which the bids involved. The announcement of conditions governing the auctions were in the nature of an invitation to an offer to those who were interested in the sale of country liquor. The bids given in the auctions were offers made by prospective vendors to the Government. The Government’s acceptance of those bids was the acceptance of willing offers made to it. On such acceptance, the contract between the bidders and the https://hcservices.ecourts.gov.in/hcservices/ Government became concluded and a binding agreement came into existence between them. The successful bidders were then granted licences evidencing the terms of contract between them and the Government, under which they became entitled to sell liquor. The licensees exploited the respective licences for a portion of the period of their currency, presumably in expectation of a profit. Commercial considerations may have revealed an error of judgment in the initial assessment of profitability of the adventure but that is a normal incident of all trading transactions. Those who contract with open eyes must accept the burdens of the contract along with its benefits. The powers of the Financial Commissioner to grant liquor licences by auction and to collect licence fees through the medium of auctions cannot by writ petitions be questioned by those who, had their venture succeeded, would have relied upon those very powers to found a legal claim. Reciprocal rights and obligations arising out of contract do not depend for their enforceability upon whether a contracting party finds it prudent to abide by the terms of the contract. By such a test no contract could ever have a binding force." 14. In the third judgment cited above reported in (1995) 1 SCC 478, the Honourable Apex Court has held that: "The State, in exercise of its various functions, is governed by the mandate of Article 14 of the Constitution which excludes arbitrariness in State action and requires the State to act fairly and reasonably. The action of the State in the matter of award of a contract has to satisfy this criterion. Moreover a contract would either involve expenditure from the State exchequer or augmentation of public revenue and consequently the discretion in the matter of selection of the person for award of the contract has to be exercised keeping in view the public interest involved in such selection. The decisions of this Court, therefore, insist that while dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and like a private individual, deal with any person it pleases, but its action must be in conformity with the standards or norms which are not arbitrary, irrational or irrelevant. It is, however, recognised that certain measure of “free play in the joints” is necessary for an administrative body functioning in an administrative sphere." 15. In the fourth judgment cited above, reported in (1996) 4 SCC 551,the Honourable Apex Court has held: https://hcservices.ecourts.gov.in/hcservices/ "At the outset it must be borne in mind that the agreement between the parties was a written agreement and therefore the parties are bound by the terms and conditions of the agreement. Once a contract is reduced to writing, by operation of Section 91 of the Evidence Act, 1872 it is not open to any of the parties to seek to prove the terms of the contract with reference to some oral or other documentary evidence to find out the intention of the parties. Under Section 92 of the Evidence Act where the written instrument appears to contain the whole terms of the contract then parties to the contract are not entitled to lead any oral evidence to ascertain the terms of the contract. It is only when the written contract does not contain the whole of the agreement between the parties and there is any ambiguity then oral evidence is permissible to prove the other conditions which also must not be inconsistent with the written contract." 16. In the fifth judgment cited above, reported in (1996) 7 SCC 665, the Honourable Apex Court has held: "A contract in violation of the mandatory provisions of law can only be read and enforced in terms of the law and in no other way. The question of equitable estoppel does not arise in this case because there can be no estoppel against a statute." 17. In the sixth judgment cited above, reported in (1997) 6 SCC 450, the Honourable Apex Court has held: "When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops." 18. In the seventh judgment cited above, reported in (1999) 1 SCC 475, an advertisement was issued inviting tenders for quarrying sand for three years from 1.1.1995 to 31.3.1998 and the appellant therein stood as a highest offer, which was rejected by the Collector on 22.3.1995 in exercise of powers under Rule 8(6)(b)(ii) of the Tamil Nadu Minor Mineral Concession Rules, 1959 and the appeal filed by the allottee was allowed by the Director on 1.4.1997, by which time, part of the lease period from 1.4.1995 to 1.4.1997 was already expired, therefore, lease was granted by the Director only for the remaining period of 1.4.1997 to 31.3.1998. In the meantime, Rule 8(8) (a)(i) was amended w.e.f.19.12.1996 providing that lease period of https://hcservices.ecourts.gov.in/hcservices/ three years should be from the date of execution of the lease deed. In such circumstances, the Honourable Apex Court has held that 'the amended rule is