IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 17.03.2011 Coram: The Honourable Mr.M.Y.EQBAL, CHIEF JUSTICE and The Honourable Mr.Justice T.S.SIVAGNANAM W.A.Nos.1018 & 1019 of 2010 and W.P.No.5734 of 2010 and connected miscellaneous petitions -------- W.A.Nos.1018 & 1019 of 2010 The District Collector, Namakkal District, Namakkal. ... Appellant in both the appeals vs. 1.K.Anbarasi .. Respondent in W.A.No.1018/2010 2.S.Senthil Kumar .. Respondent in W.A.No.1019/2010 W.P.No.5734 of 2010 G.Selvaraj ... Petitioner vs. The District Collector, Salem District @ Salem .. Respondent Appeals filed under Clause 15 of the Letters Patent against the order passed in W.P.Nos.15846 & 15847 of 2010 dated 02.04.2009 on the file of this Court. (i) to issue a Writ of Mandamus, or any other appropriate writ, order or direction, directing the Respondent to extend the lease of the quarry in S.F.No.1 (Bit I) admeasuring 4.90.0 hectare in Kondamanaickenpatti Village, Namakkal Taluk and District for a period of 283 days from 18.09.2008 which is the date of expiry of the existing lease executed in favour of the Petitioner pursuant to the proceedings of the Respondent dated 19.09.2003 having Ref.No.664/2003 Mines-C in compliance with the https://hcservices.ecourts.gov.in/hcservices/ order of the Honble High Court dated 08.08.2005 in W.P.No.23972 of 2005 (WP.No.15846/08) (ii) to issue a Writ of Mandamus, or any other appropriate writ, order or direction, directing the Respondent to extend the lease of the quarry in S.F.No.11 (Bit 2) admeasuring 1.25.0 hectare in Kondamanaickenpatty Village, Namakkal Taluk and District for a period of 283 days from 18.09.2008 which is the date of expiry of the existing lease executed in favour of the Petitioner pursuant to the proceedings of the Respondent dated 19.09.2003 having Ref.No.663/2003 Mines-C in compliance with the order of the Honble High Court dated 08.08.2005 in W.P.No.23971 of 2005 (WP.No.15847/08) Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus directing the respondent to grant permission to the petitioner to carry on quarrying operations in respect of stone quarry situated in S.F.No.9 over an extent of 2.73.0 hectares in Government Poromboke Land in P.N.Patty Village, Mettur Taluk, Salem District for which the petitioner was illegally prevented by the respondent for a period of 18 months and 18 days (from 15.12.2006 to 03.07.2008). For Appellant in both the appeals & :::Mr.J.Raja Kalifulla For Respondent in W.P. Government Pleader, Assisted by Mrs.M.Sneha, Govt. Advocate. For Respondent in both the appeals :::Mr.Arun Natarajan for Ms.C.Uma For Petitioner in W.P.No.5734/2010 ::: Mr.A.L.Somayaji, Senior Counsel for Mr.K.R.Krishnan COMMON JUDGMENT THE HON'BLE CHIEF JUSTICE & T.S.SIVAGNANAM,J. Since common questions of law and facts are involved in both the appeal and the writ petition, they have been heard and disposed of by this common judgement. 2. W.A.Nos.1018 & 1019 of 2010 arises out of a common order passed in W.P.Nos. 15846 & 15847 of 2008, whereby the learned single Judge allowed the writ petitions and directed the respondent- appellant to extend the lease of quarry in respect of the land in question. https://hcservices.ecourts.gov.in/hcservices/ 3. W.P.No.15846 of 2008 was filed seeking a direction upon the respondent-appellant to extend the lease of quarry in S.F.No.1 (Bit 1) admeasuring 4.90.0 hectare in Kondamanaikenpatti Village, Namakkal Taluk for a period of 283 days from 18.9.2008, which is the date of expiry of the existing lease executed in favour of the writ petitioner. 4. A similar relief was claimed in W.P.No.15847 of 2008 seeking a direction for extension of lease of quarry in S.F.No.II (Bit 2) admeasuring 1.25.0 hectares in Kondamanaickenpatti Village, Namakkal Taluk for a period of 283 days from 18.9.2008. 5. It appears that pursuant to the tender notice issued by the appellant under the Tamil Nadu Minor Mineral Concession Rules, 1959, the petitioner beings the successful bidders were granted quarry lease for a period of five years from 19.9.2003 to 18.09.2008. By proceeding dated 11.7.2005, the respondent-appellant issued the order of suspension to quarry until the leasehold lands are surveyed and demarcated. The petitioners challenged the said order by filing writ petition being W.P.No.23972 of 2005 and W.P.No.23971 of 2005. The said writ petitions were disposed of on 8.8.2005 directing the respondent-appellant to measure and handover the property, which has been leased out to them, within a period of three weeks. It was, further, observed that the extension of such period has to be considered on account of suspension of the lease period. After the aforesaid direction, the lands were measured on 24.8.2005 and the report was submitted by the respondent-appellant. The respondent -appellant then issued a show cause notice on 2.9.2005 pointing out certain defects. The petitioners replied to the said notice and thereafter, an enquiry was conducted, but no order was issued. The writ petitioners thereafter again filed writ petitions being W.P.Nos.34567 and 34568 of 2005 for a mandamus directing the respondent to pass final orders on the show cause notice. The said writ petitions were disposed of on 26.10.2005 directing the respondents to pass final orders within two weeks. In spite of the aforesaid direction, no orders were passed and again the petitioners moved this Court by filing W.P. Nos. 1207 and 1208 of 2006 for quashing the order dated 11.7.2005. It was only thereafter the petitioners were allowed to carry on mining operation on 20.04.2006. 6. On these facts, the petitioners moved this Court by filing the aforementioned writ petitions being W.P. Nos. 15846 & 15847 of 2008 seeking for a direction to the respondent-appellant to extend the period of 283 days, since the petitioners could not carry on the mining operations from 11.7.2005 to 20.04.2006. The contention of the petitioners was that the lease have been granted for a period of five years from 19.9.2003 to 18.9.2008, but by virtue of the order of suspension dated 11.7.2005, the petitioners could not carry on https://hcservices.ecourts.gov.in/hcservices/ the mining operation, and finally after filing several writ petitions, they have been permitted to quarry only on 20.4.2006. Thus, according to the petitioners, from 11.7.2005 to 20.04.2006 i.e., for 283 days, the petitioners could not quarry on the said land, because of the order of suspension. Hence, the petitioners are entitled to extension of lease for the period of 283 days. 7. The only issue therefore in the writ petition was as to whether the petitioners-lessees could be granted quarrying operation for 283 days, which could not be utilized by them in view of the order of suspension passed by the respondent-appellant on 11.7.2005. The learned single Judge held that the un-utilised period of 283 days undoubtedly is not due to the fault of the petitioners, and therefore, it is but reasonable and justifiable to allow the petitioners to carry on the quarrying operation for the said un- utilised period. Accordingly, the writ petitions were allowed and a direction was issued to extend the lease period of 283 days thereby permitting the petitioners to quarry on the said lands. 8. A somewhat similar issue was involved in W.P.No.5734 of 2010. In this case, a notification for retender-cum-auction was published in the Salem District Gazette Extra Ordinary issue No.1 dated 11.1.2005 proposing to lease out stone quarry in respect of S.F.No.9 over an extent of 2.73 hectares in Government Poromboke Land in P.N.Patty Village, Mettur Taluk, Salem District. The writ petitioner being the highest bidder was granted lease by proceeding dated 16.3.2005. The petitioner paid the lease amount of Rs.2,51,000/- and security deposit of Rs.25,100/-, and the lease was executed on 9.7.2005 for a period of five years from 09.07.2005 to 08.07.2010. The petitioner’s case is that since from the date of execution of the lease deed by the respondent, the petitioner has been carrying on quarrying operations in accordance with the terms of lease and never violated any of the terms and conditions. However, the petitioner received the notice dated 15.12.2006 alleging that one T.M.P.Muruganantham has alleged that quarrying in places like Ramamoorthy Nagar, Thengalvarai, Kottaikaradu in P.N.Patty Panchayat is endangering the cattle, etc. and may affect the Mettur Dam since quarries are situated near the water spread area. The respondent, therefore, directed the petitioner and other lessees to stop quarrying operation carried on by them. However, based on the test studies and conclusion of the Department of Mining Engineering, Anna University, Chennai, the respondent in his proceedings Roc.1087/2006/Mines-A dated 3.7.2008 again granted permission to the petitioner to carry on quarrying operation. The petitioner, therefore, alleged that for no fault of him, he could not carry on the quarrying operation from 15.12.2006 to 3.7.2008. Thus, for a period of 18 months and 18 days, which period the respondent temporarily suspended the quarrying activities of the petitioner. It is stated that having paid the lease amount for a full period of five years, the respondent ought not to have stopped https://hcservices.ecourts.gov.in/hcservices/ the petitioner’s quarrying operations for 18 months and 18 days, and the petitioner has to be granted permission to carry on quarrying operation. The petitioner, therefore, sought a mandamus directing the respondent to allow the petitioner to carry on the quarrying operation for a further period of 18 months and 18 days. 9. Mr.J.Raja Kalifulla, learned Government Pleader assailed the impugned judgement passed by the learned single Judge as contrary to law and without jurisdiction. He firstly submitted that the learned single Judge has failed to take into consideration the legal position that under Rule 8(8)(i) of the T.N.Minor Mineral Concession Rules, 1959 after the period of expiry of the lease, there cannot and shall not be any extension of the lease period. According to the learned Government Pleader in no case the period of lease shall be extended. It was contended that there is no provision for extension of lease under the aforesaid Rules. Learned Government Pleader further submitted that the appellant State Government is empowered to control the quarry operations and in the event litigations arose regarding the lease boundary, government is empowered to conduct survey work in the lease area by suspending the quarrying operations. He relied upon the decisions of the Madras High Court in the case of L.Boomiraja Vs. The District Collector, Dindigul District, (2005) 3 M.L.J. 280, R.Govindasamy Vs. The District Collector, Erode District, 2004 (1) CTC 139 and A.Kumar & Others Vs. The District Collector, Kancheepuram, 2010 Writ L.R. 285. 10. On the other hand, learned counsel appearing for the respondent submitted that the provision of Rule 8(8) of the said Rules does not apply to the facts of the present case. According to the learned counsel since the suspension of quarry operation was not because of the fault of the lessee he is entitled to get extension of lease period. 11. Mr.A.L.Somayaji, learned Senior Counsel appearing for the petitioner in the writ petition viz., W.P.No.5734 of 2010 submitted that the petitioner is carrying on quarry operations in accordance with the terms of the lease and never faulted any of the terms and conditions. All of a sudden the respondent issued notice to the petitioner and other lessees dated 15.12.2006 directing them to stop the quarry operations on the ground that one person has alleged that quarrying in the place in question is endangering the cattle, etc. and may affect the Mettur Dam since quarries are situated near the water spread area. However, based on the test studies and conclusion of the Department of Mining Engineering, Anna University, Chennai the petitioner was granted permision to carry on the quarrying operations. According to the learned counsel, therefore, for no fault of the petitioner he could not carry on quarrying operations for 18 months and 18 days because of the suspension of the quarrying activity by the respondents. Hence, the petitioner is entitled to carry on the quarrying operations for the remaining period of lease. https://hcservices.ecourts.gov.in/hcservices/ Learned Senior Counsel lastly submitted that in the similar facts and circumstances, one Mr.K.Selvam, another lessee, filed W.P.No.27912 of 2008, which was allowed by this Court by judgment dated 03.04.2009 and directed the respondents to grant permission to carry on the quarrying operations for a period of 16 months. It is stated by the learned Senior Counsel that the respondent did not challenge the aforesaid order rather implemented the same by granting permission to the lessee to carry on quarrying operations for the period when he was stopped from carrying on mining operations. 12. Before deciding the issue involved in these cases, we would like to first discuss the decisions referred to by the learned Government Pleader in support of the fact that period of lease cannot in any event be extended after the expiry of the period of lease. 13. In L.Boomiraja vs. The District Collector, Dindigul reported in 2005 (3) L.W 91=(2005) 3 MLJ 280, a Division Bench of this Court considered the power of the Court to direct extension of lease. In that case, the lease deed under the Mineral Concession Rules was executed by the Government in favour of the petitioner on 26.9.2001 for a period from 1.4.1998 to 31.3.2003. The lease deed was executed on 26.9.2001 and registered on 13.10.2001. The petitioner filed the writ petition praying for extension of period of lease alleging that it should have deemed to have commenced from the date of execution of lease deed. In other words, the petitioner claims that the lease had commenced from 26.9.2001 for a period of five years upto 26.9.2006. The learned single Judge treated the lease deed having been executed on 8.10.1998. When the matter came up before the Division Bench, it was held that Clause (ii) of Rule 8 of the Rules is mandatory and that the Court has no power to extend the lease. The Court was of the opinion that the only relief the lessee can get his to get direction for refund of the proportionate amount of the lease amount/damages/compensation in accordance with law, but not the extension of lease. 14. In the case of Govindasamy, R v. The District Collector, Erode District reported in 2004 (1) CTC 139, the petitioner, who was a successful bidder, was granted lease to quarry ordinary rough stones for a period of five years from 20.1.1998 to 19.1.2003. The petitioner-lessee contended that they could not effectively operate the impugned quarry area for a period of nine months due to heavy rainfall and hence, he sought direction for extension of lease. The learned single Judge of this Court dismissed the writ petition holding that the ground taken by the petitioner for extension of lease cannot be accepted. 15. In the case of A.Kumar & Others Vs. The District Collector, Kancheepuram, 2010 Writ L.R.285 the fact was that the petitioners https://hcservices.ecourts.gov.in/hcservices/ being successful bidders were granted lease of quarrying of rough stone for a period of 5 years from the date of execution of lease deeds. The case of the petitioners was that though the lease deeds were executed during February, 2003 on the said date they could not start quarrying operations because they had to do preliminary works like cleaning the quarry and other incidental development activities. They also contended that pursuant to amendment in Rule 8 (8) of the T.N.Minor Mineral Concession Rules they became entitled for extension of lease period. Rejecting the prayer made by the writ petitioners a Division Bench of this Court held that the period of lease for quarrying rough stone cannot be extended for further period as because they have enjoyed the rights of quarrying for the full period. 16. It is, therefore, clear that the ratio decided by this Court in the aforesaid three judgements cannot be made applicable in the facts of the present case. 17. As noticed above, the respondents in the appeals and the petitioner in the present writ petition were granted quarry lease for a period of five years. But, in the midst of the lease period the lease was suspended and/or lessees were stopped from doing quarrying operations. The respondents in the writ appeals had to move this Court by filing writ petitions for the issuance of necessary direction to the appellants and further stating that because of the suspension of the lease period the appellants will have to consider extension of the period of lease. 18. In the case of V.Karnal Durai vs. District Collector reported in 1999 (1) SCC 475, the District Collector, Tuticorin by notification invited tender for grant of lease of sand quarry for a period of two years from 1.1.1995 to 31.3.1997. The said advertisement was amended and a modified as a lease for three years i.e., upto 31.3.1998 rather than for two years. On 23.2.1995, the petitioner submitted his tender and offered a sum of Rs.1,60,000/- p.a which was the highest amount. The Collector did not accept the offer, but rejected the same by order dated 22.3.1995 in exercise of the power under Rule 8(6)(b)(ii) of the Tamil Nadu Minor Mineral Concession Rules, 1959. The Collector felt that the appellant’s offer even though was the highest, was less than the upset price as estimated by the Department. The appellant preferred an appeal to the Director of Geology and Mines, which was allowed by order dated 1.4.1997 on the ground that by closing the date of the tenders, namely, 6.3.1995, the upset price was not fixed by the Assistant Geologist. The Director also held that the offer of the petitioner ought to have been accepted. By the date when the Director allowed the appeal on 1.4.1997, part of the lease period from 1.4.1995 to 1.4.1997 had already expired. Therefore, the Director granted lease only for the remaining period from 1.4.1997 to 31.3.1998. Aggrieved by the said order to the extent that the full three years lease was https://hcservices.ecourts.gov.in/hcservices/ not granted by the Director, the petitioner filed writ petition contending that the Director should have given the benefit of amended Rule 8(8)(a), which stated that the lease should run for a period of three years from the date of execution of the lease deed. The learned single Judge dismissed the writ petition holding that the petitioner could not claim that the three years period was to run as per amended 8(8)(a) of the Rules. The matter ultimately went to the Supreme Court. The question before the Supreme Court was as to whether the petitioner is entitled to quarry of lease for three years from the date of execution of the lease deed as per Rule 8(8) (a) of the Rules, as amended by G.O.Ms.No.235 dated 19.12.1996. The Supreme Court observed:- “20. In this context, we may point out that Rule 8 (8)(a)(i) as it stood before the amendment had a proviso that the lease amounts for the second and subsequent financial years shall be fixed by way of an annual increase of 20%. We find, however, that the said proviso was dropped w.e.f. 19-12-1996. This is clear from the fact that the amendment states “for sub-clause (i) including the provisos, the new amendment is substituted”. 21. In the present case, the appellant’s tender was rejected on 22-3-1995 and the provision for periodic increases was there till 19-12-1996 only. In the circumstances of the case, we have put it to the appellant’s Senior Counsel that in the event the appeal is to be allowed, we will apply the old Rule up to at least 19-12-1996 so far as the rate is concerned. Learned Senior Counsel agreed for such enhancement. The enhancement would be roughly for 2 years. In the peculiar circumstances of the case, we direct that the lease amount will stand increased, to start, by 40% of the offer, i.e., instead of Rs.1.60 lakhs, it will be Rs.2.24 lakhs per annum. The period of lease will run for a period of 3 years from the date of execution of the lease as stated in the amended Rule, at the rate of Rs. 2.24 lakhs per annum. The appellant shall have to pay the seigniorage also as per the amended Rules in addition to the lease amount. Time for payment of the enhancement in the lease amount or any balance of the lease amount or seigniorage will be one month from today.” 19. In the case of Beg Raj Singh – Vs – State of U.P. & Ors. (2003 (1) SCC 726), the petitioner applied for sand mining lease in accordance with the policy decision contained in the relevant GO. The Collector granted the said lease to the petitioner. The lease was executed for a period of one year w.e.f. 3.6.1998. Before the https://hcservices.ecourts.gov.in/hcservices/ expiry of the term of the lease, the petitioner sought for a renewal for another period of two years. The Collector granted such extension vide order dated 20.12.2000; the principal consideration for granting such renewal being that the lease, as originally executed, should have been for a minimum period of three years which having not been done and erroneously the lease having been executed for a period of one year, the petitioner was entitled to such extension for two years. Around the time when the petitioner was allowed the extension of two years, the Government had taken a decision to hold an auction of the sand mining lease. Respondent 3, a competitor aspirant of the petitioner, preferred a revision before the State Government against the order of the Collector dated 20.12.2000. The revision was filed after expiry of one year and four months from the date of the order of extension. The State Government condoned the delay in filing the revision on the ground that the revision was filed within the period of limitation calculated from the date of the knowledge of Respondent 3. The issue as to locus standi was also decided in favour of Respondent 3. The State Government, vide its order dated 22.4.2002, set aside the order of the Collector influenced mainly by the consideration that the State Government having decided to hold an auction of the mining rights, it was likely to gain higher revenue and therefore it was in public interest to transfer mining rights by holding an auction. The petitioner preferred a writ petition before the High Court which was dismissed. Though the High Court opined that the order of the Collector granting two years’ extension of mining rights to the petitioner was justified and the State Government was not justified in interfering and setting aside the order of the Collector but it denied the relief to the petitioner on the ground that auction would subserve public interest by fetching higher royalty to the State Government and further, because the period of three years calculated from the date of the original grant had in any case come to an end and therefore, no relief could be allowed to the petitioner. Against such order, the petitioner filed the Special Leave Petition before the Supreme Court. Allowing the Special Leave Petition, their Lordships of the Supreme Court observed as under :- “5. The only submission made by the learned counsel for the petitioner is that the petitioner has been given a very rough deal by the State Government and the injustice done to the petitioner the High Court has failed to redeem. He had identified and explored the new mining area and made huge expenditure in making the mining area approachable and therefore it was the legitimate expectation of the petitioner that he would be entitled to operate the mine for a minimum period of three years as per the declared policy of State Government. The State Government should not have interfered with the order of the Collector and that too at the instance of a third party--the respondent No. 3, when no auction https://hcservices.ecourts.gov.in/hcservices/ was held and no right was created in favour of the respondent No. 3. Matter as to the grant or renewal of the lease for a total period of three years was in accordance with the policy of the State Government and was a matter between the State and the petitioner. It was submitted at the end that the petitioner has been agitating his right diligently throughout and the time lost in prosecuting legal proceedings upto the High Court wherein the plea raised by the petitioner laying challenge to the order of the