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2010 DIGILAW 758 (MAD)

The District Collector, Nagercoil v. P. Vijayan

2010-02-23

B.RAJENDRAN, PRABHA SRIDEVAN

body2010
Judgment :- PRABHA SRIDEVAN, J 1. There is no fundamental right to quarry minerals of whatever kind. The persons who want to quarry seem to be labouring under a misconception that there is such a right. The State permits quarrying by grant of licence and regulates the extraction of minerals. The State undoubtedly has the right to even curb quarrying. It may do so because of over-exploitation or environmental damage. The constitutional Courts may also in “public interest” stop quarrying. The Supreme Court has passed such an order as regards the Aravalli Range. Petitions are filed for interim directions to quarry. Some times even if ultimately the main petitions fail for lack of merit, the petitioners have happily achieved their ends by the interim orders. The Honble Mr. Justice R.V.RAVEENDRAN, Judge of the Supreme Court of India, has this to say about interim orders in his article “Rendering Judgments – Some Basics” in (2009) 10 SCC J1. “But what should not be lost sight of, is the fact that while in a private litigation, the sufferer on account of an unwarranted interim or final order may be only an individual, the entire public interest suffers where the interim or final order is against the Government.” Rocks which have been standing as witnesses to history are cut up like bread loaves by Man. Rapaciousness blinds him to the Truth that Nature may have the last laugh. The State holds these natural resources like water, minerals, forests in trust for the citizens of today and many many tomorrows, and must protect them. 2. The District Collector, Kanyakumari District, is the appellant. The writ petitioner/ respondent was granted a lease for quarrying jelly for a period of five years from 17.8.1999 to 16.8.2004. According to him, the quarrying operation could not be conducted for the entire five years period. For the period during which the quarry was not operative, he requested extension of lease. This was ordered in W.P.(MD)No.5971 of 2005 and the lease was extended from 7.12.2005 to 8.1.2008. According to him, the quarry was a "virgin quarry". According to him, the quarrying operation could not be conducted for the entire five years period. For the period during which the quarry was not operative, he requested extension of lease. This was ordered in W.P.(MD)No.5971 of 2005 and the lease was extended from 7.12.2005 to 8.1.2008. According to him, the quarry was a "virgin quarry". Therefore, when Rule 8(8) of the Tamilnadu Minor Mineral Concession Rules 1959, came into force, he was entitled to have a lease for a period of 10 years and the contention raised by the persons similar to him was upheld by a Division Bench of this Court in A.Srinivasan vs. The District Collector, Kanchipuram [ 2008 (3) CTC 800 ]. The writ petitioner gave a request on 24.11.2008 to consider his case on par with others who got the benefit of the order reported in 2008 (3) CTC 800 supra. According to him, no orders were passed and therefore, he filed the Writ Petition. 3. In the counter affidavit, it is stated that the writ petitioner was granted lease from 17.8.1999 to 16.8.2004. Therefore, the lease area cannot be treated as "virgin quarry". 4. The learned single Judge was pleased to allow the Writ Petition. Therefore, the appellant has filed this Writ Appeal. 5. Learned Special Government Pleader submitted that, against the order passed by the Division Bench, which was reported in 2008 (3) CTC 800 supra, a Special Leave Petition was filed wherein the Supreme Court has observed that the Special Leave Petition has been dismissed as having virtually become infructuous as the 10 years period expired in June, 2009 and only the question of law is left open. Therefore, according to the learned Special Government Pleader, the Supreme Court did not make any exception but treated the 10 years period as the block period which expired in 2009. 6. Learned counsel for the writ petitioner/respondent, on the other hand, would submit that in identical matters, the Division Bench has held that they were entitled to a further period of five years and had dismissed the Appeals filed by the District Collector and the same benefit should be given to him. According to the learned counsel, in actual fact, the writ petitioner had not quarried for 10 years and therefore, an extension has to be given. 7. According to the learned counsel, in actual fact, the writ petitioner had not quarried for 10 years and therefore, an extension has to be given. 7. The writ petitioner/respondent herein appears to think that he can take advantage of the Judgment reported in 2008 (3) CTC 800 supra and get another five years period for quarrying. The learned single Judge agreed with him. 8. The issue relating to applicability of Rule 8(8) of the Tamilnadu Minor Mineral Concession Rules, 1959 was decided in V.Karnal Durai v. The District Collector, Tuticorin and another [JT 1998 (8) SC 301]. The Supreme Court framed the following question. "Question for consideration is whether in cases where the application for lease is rejected by the Collector and an appeal is rejected by the Collector and an appeal is filed by the applicant before the Director, and the rules are amended during the pendency of the appeal, the above principle in Hind Stone can be applied?" The Supreme Court held as follows: "13. In our view, what applies to applications applies equally to appeals because, an appeal is nothing by the continuation of the proceeding which started with an application. In our view, it makes no difference whether the delay has occurred on account of keeping the applications pending or on account of an appeal being filed. In either case, Hind Stone becomes applicable." 9. Therefore, the Division Bench held that the benefit of the rule relating to "virgin quarry" should be given if the lease that is subsisting was granted in respect of quarry where no prior lease was granted and they held that if the lease granted in respect of such areas i.e. areas where there was being no quarrying earlier was in force and the period of lease was not over on the date when the amendment came into force on 17.11.2000, those areas should be considered to be "virgin". The legal point as to whether such areas should be considered as "virgin areas" has not been decided by the Supreme Court. They have specifically left it open. In fact the words in Rule 8(8) are “which have not been subjected to quarrying so far.” It is not “have not or had not”, So another construction contrary tot he Division Benchs construction in Srinivasans case, may be logical too. But, in this case, we are not going to that question. They have specifically left it open. In fact the words in Rule 8(8) are “which have not been subjected to quarrying so far.” It is not “have not or had not”, So another construction contrary tot he Division Benchs construction in Srinivasans case, may be logical too. But, in this case, we are not going to that question. Because, we are not called upon to do so. However, the Supreme Court, while dismissing the Special Leave Petition observed that for all the persons applicable period of 10 years was over. 10. In JT 1998 (8) SC 301 -an unsuccessful applicant challenged the grant of granite quarrying lease. The High Court found that the State had not acted fairly and had not kept the public interest and mineral development in view. Therefore directions were given for reconsideration of all the applications. We do not see how this judgment helps the petitioner. 11. In 2003(1)SCC 726 -Beg Raj Singh vs. State of U.P., the petitioner was granted lease for one year. Renewal sought for another two years was granted by the Collector when it should have been for a minimum period of three years. It was held that since the Government had in fact an obligation to grant lease for three years, it cannot decline to do so merely because more revenue could be earned. In that case, on facts, it was held that the petitioner was wrongfully denied and he is entitled for the full lease period and therefore he must be allowed to mine for the full period. It was also held that a litigant though entitled to relief in law may yet be denied relief in equity. In this case, the petitioner claims that he is entitled to 10 year period. The manner in which the 10 year period has to be calculated has been dealt with in A.Srinivasans Case and will be explained by us in the following paragraphs and therefore our decision is in conformity with the above case. 12. In 1996(5) SCC 460 -Rajendra Singh vs. State of M.P. and others, the Supreme Court dismissed the appeals filed by the bidder for liquor vending. The Supreme Court held that licensee had no fundamental right to trade in liquor and he had only a right to seek enforcement of terms of contract. This is actually not in favour of the petitioner herein. The Supreme Court held that licensee had no fundamental right to trade in liquor and he had only a right to seek enforcement of terms of contract. This is actually not in favour of the petitioner herein. We too hold that there is no fundamental right to quarry granite and all that the petitioner can pray for is to enforce the terms of contract. Here though by the contract he was granted five years, by taking advantage of of the judgment in A.Srinivasans case, he claims that he is entitled to quarry for 10 year block period that came to an end. The Supreme Court has confirmed that the 10 year period has come to an end. We do not see how the petitioner can have any complaint thereafter. 13. The counsel for the petitioner also produced an unreported judgment of the Division Bench of this Court in W.A.(MD)No.597 of 2009, dated 18.11.2009. There is nothing in this order, which is contrary to the view that we are going to take. All that the Division Bench says is that the respondent will be entitled to seek for quarry for a period of 10 years on the basis of the amended rule on the ground that the quarry is virgin. But, in fact, the Division Bench qualified it by saying that the expression "shall be 10 years” is not automatic and the period of 10 years is only an outer limit. This also does not come to the aid of the petitioner. 14. Rule 8(8) starts with words "the period of lease for quarrying stone in respect of virgin areas, which have not been subjected to quarrying so far, shall be 10 years.” This has to be understood in such a way where the original lease agreement provided for a quarrying operation for 5 years from the date of commencement of lease, it should be read as 10 years. That is the effect of the judgment. It is the block period of 10 years commencing from the date of lease deed. In the present case, the lease deed is dated 17.8.1999 and 10 years period came to an end on 16.8.2009. 15. The writ petitioner/respondent was allowed to quarry beyond the period of five years on the ground that he had not exploited the quarry for five years. In the present case, the lease deed is dated 17.8.1999 and 10 years period came to an end on 16.8.2009. 15. The writ petitioner/respondent was allowed to quarry beyond the period of five years on the ground that he had not exploited the quarry for five years. We are also not going into the correctness or the legality of these directions but the fact remains that he continued to operate the quarry. Admittedly, he was allowed to operate beyond 2005. Even in the judgment reported in 2008 (3) CTC 800 supra, the Division Bench took into account such extensions where they have said factually by various order of this Court that some of the lessees were allowed to quarry even beyond the period of five years and with the result, they were left with only one or two years period as the case may be. This can only mean that if a lessee is allowed to quarry even beyond the period of five years, because of the orders of the Court, then by invoking Rule 8(8), he will have that many years to quarry if 10 year period commenced on the date of the lease. This cannot mean, he will have another period of five years from the dates on which their periods extended by the High Court directions came to an end. 16. We will illustrate this by a concrete example. A person is given a lease on 1st January, 1999. His lease period was for 5 years and it would expire on 31.12.2003. Now, as per the decision reported in 2008 (3) CTC 800 supra, his lease period is deemed to be 10 years and will come to end on 31.12.2008. If because of Courts directions for whatever reason, he had continued to quarry upto 1.1.2007 notwithstanding the fact that his period expired on 31.12.2003, he cannot be heard to say that he will get five more years from 1.1.2007. His block period of 10 years starts on the date on which his lease commenced. He will have only two years period i.e. from 1.1.2007 till 31.12.2007 and 1.1.2008 till 31.12.2008 which is the 10 year period that he will be entitled to as per Rule 8(8) of the Tamilnadu Minor Mineral Concession Rules as considered in 2008 (3) CTC 800 supra. His block period of 10 years starts on the date on which his lease commenced. His block period of 10 years starts on the date on which his lease commenced. That is why the Division Bench even in 2008 (3) CTC 800 supra, which the writ petitioner relies has clearly stated that "they are left only with one or two years period as the case may be." Now that 10 year period has come to end as observed by the Supreme Court. 17. The writ appellant has no statutory obligation to extend the period beyond the 10 years period even by invoking Rule 8(8) of the Tamilnadu Minor Mineral Concession Rules 1959. When there is no statutory obligation, no mandamus can be issued. The order of the Writ Petition is set aside. 18. The writ appeal is allowed. Connected Miscellaneous Petition is closed. No costs.