IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28..01..2011 CORAM THE HON’BLE Mr.M.Y.EQBAL, CHIEF JUSTICE and THE HON’BLE Mr.JUSTICE T.S.SIVAGNANAM W.A.No.765 of 2010 and M.P.No.1 of 2010 ------------ 1. State of Tamil Nadu, rep. by Secretary to Government, Industries Department, Fort St.George, Chennai – 9. 2. The District Collector, Namakkal District, Namakkal. ..Appellants. Vs. T.R.Mohan, S/o. Sri Ranganatha Gowder, 134-C.K.Colony, New Shidapudur, Coimbatore. ..Respondent. PRAYER: Appeal filed under Clause 15 of the Letters Patent against the order of the learned single Judge dated 21.03.2007 passed in W.P.No.1951 of 2007. Presented under Article 226 of the Constitution of India to issue writ of mandamus, directing the respondents to execute lease agreement for a period of six months on deposit of Rs. 14,88,000/- being the proportionate lease amount in respect of sand quarry measuring 10-00-0 Hectares, comprised inSurey S.F.No. 643, situated in ORUWANDHUR village, Namakkal taluk, namakkal district pursuant to the orders of the Supreme Court passed in C.A.No.5572 of 2005 etc., dated 24.3.2006. ------------- For Appellants :: Mr.J.Raja Kalifulla, Govt. Pleader Assisted by M.Sneha, Govt. Advocate For Respondent :: No appearance -------------- https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T The Hon’ble Chief Justice This appeal is directed against the judgment and order dated 21.03.2007 passed in W.P.No.1951 of 2007, whereby the learned single Judge allowed the writ petition and directed the appellants/State Government to execute lease agreement for the period of 6 months on deposit of proportionate lease amount in respect of the sand quarry measuring 10.00.0 Hectares comprised in Survey No.643 situated in Oruwandhur Village, Namakkal Taluk, Namakkal District in the light of the order of the Supreme Court passed in C.A.No.5572 of 2005 dated 24.03.2006. 2. The respondent/writ petitioner sought the aforesaid relief on the basis of the facts briefly stated herein below. The respondent’s case is that he participated in the tender- cum-auction conducted by the District Collector, Namakkal District in respect of sand quarry measuring 10.00.0 Hectares comprised in S.F.No.147/1 situated in Devarayasamudram Village, Paramathi-Velur Taluk, Namakkal District, and was declared as a successful bidder for the period from 01.11.1996 to 31.03.1999. It is alleged that by proceedings dated 22.11.1996 the District Collector, Namakkal granted mining lease in favour of the respondent for the aforesaid period. Since, there was a delay in confirmation, the respondent alleged to have requested the appellants to exclude the delayed period for which the 2nd respondent – District Collector declined to do so. The respondent, thereafter, filed a writ petition being W.P.No.70 of 1997 before this Court, which was allowed on 28.02.1997 directing the 2nd respondent – District Collector to exclude the period till December, 1996, and to execute the lease deed for a period of five months from 01.03.1997, and to collect the proportionate lease amount. The said order was subsequently modified to collect proportionate lease amount and to execute lease deed for two years i.e., from 01.03.1997 to 31.03.1999. The respondent’s case is that he again moved this Court by filing writ petition being W.P.No.33863 of 2002 for an alternate area for the reason that by virtue of the subsequent amendment in the rule the area in question was declared as prohibitory safety area and sand quarry lease could not be granted because of a bridge and tank within the prohibitory distance. The said writ petition was disposed of with a direction to grant an alternative area of equivalent sand quarry in Oruwandhur Village, Namakkal District. Against the said order the appellants preferred an appeal being W.A.No.3576 of 2002, which was dismissed, and finally, the appellants moved Supreme Court by filing S.L.P.Nos.5728-5729 of 2003, which were also dismissed on 14.07.2003. 3. In the meantime, a new rule being Rule 38A in the Tamil Nadu Minor Mineral Concession Rules was inserted prohibiting sand quarry by private persons both in patta lands and government lands. https://hcservices.ecourts.gov.in/hcservices/ The said rule was challenged in several writ petitions, which were finally decided by a Division Bench of this Court upholding the validity of the said Rule with a direction that the respective lease holders and the persons having court orders can continue the quarry operations till the expiry of the period of respective leases and respective periods covered by the court orders. Against the said judgment and order, the appellants/State Government preferred appeal before the Supreme Court in C.A.No.5572 of 2005. The Supreme Court also upheld the validity of the rule and modified the rest of the order to the effect that the non-operative period of respective leases shall be allowed to be operated for a period of six months. In the light of the observation made by the Supreme Court in the aforesaid case viz., C.A.No.5572 of 2005, the learned single Judge held that the petitioner viz., the respondent herein is entitled to get the sand quarry lease. Hence, this appeal by the respondent – State Government. 4. Mr.Raja Kalifulla, learned Government Pleader assailed the impugned order passed by the learned single Judge mainly on the ground that the observations made by the Supreme Court in paragraph-36 of the decision in the case of State of Tamil Nadu v. P.Krishnamurthy reported in 2006 (4) SCC 517 does not apply to the facts of the present case. Learned Government Pleader submitted that in spite of the order passed by this Court in the earlier writ petition for the grant of lease in favour of the writ petitioner- respondent, the respondent did not deposit the lease amount, and thereby the lease was never executed in his favour. 5. As noticed above in the writ petition, which is the subject matter of this appeal, the writ petitioner sought a direction for consideration of his case for grant of lease as per the observations made by the Supreme Court in paragraph-36 of the judgment in P.Krishnamurthy’s case (supra). In the case before the Supreme Court, the Rule namely, Rule 38-A of the Tamil Nadu Minor Mineral Concession Rules, 1959 was challenged. The Rule prohibited quarrying of sand by private persons both in the patta lands as well as in the Government lands. While upholding the said Rule, their Lordships of the Supreme Court made the following observations and directions in paragraph-36 of the judgment: - (page 537) “In regard to mining leases subsisting as on 2- 10-2003, we have read down Rule 38-A as terminating 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 https://hcservices.ecourts.gov.in/hcservices/ 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.” 6. The only question that falls for consideration is as to whether the writ petitioner-respondent is entitled to the benefit of the directions given by the Supreme Court in paragraph-36 of the judgment, which is quoted herein before. 7. Admittedly, the writ petitioner participated in the tender- cum-auction for sand quarry conducted in the year 1996 and was declared a successful bidder, and thereafter, because of the delay occurred in granting mining lease, the writ petitioner moved this Court by filing two writ petitions one after another and in those writ petitions, directions were issued for grant of lease on deposit of lease amount and security. Despite the aforesaid directions, the writ petitioner did not deposit either the lease amount or the security amount. Since the writ petitioner did not deposit the lease amount, in spite of the order of this Court, the lease could not be executed in his favour. Prime facie, therefore, we are of the view that neither any lease in favour of the respondent was subsisting on 2.10.1993 nor the benefit was available to the respondent. From the record, it reveals that the writ petitioner never fulfilled the condition for the grant of lease in his favour in spite of the order passed by this Court in earlier writ petitions. In that view of the matter, the learned single Judge has not correctly appreciated the facts of the case and has come to a wrong conclusion in allowing the writ petition, and directing grant of sand quarry lease on the basis of the auction held in the year 1996. The impugned order therefore, in our view, cannot be sustained in law. 8. The writ appeal is allowed. The impugned order passed by the learned single Judge is set aside. No costs. Consequently, miscellaneous petition is closed. Sm/pv Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ Copy to: 1. The Secretary to Government, Industries Department, Fort St.George, Chennai – 9. 2. The District Collector, Namakkal District, Namakkal. + 1 cc to Government Pleader, SR No.6619 TEJ(CO) SR/23.2.2011 Judgment in W.A.No.765 of 2010 https://hcservices.ecourts.gov.in/hcservices/