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2015 DIGILAW 3726 (MAD)

B. Ponnidurai v. District Collector, Salem

2015-12-08

R.MAHADEVAN

body2015
ORDER : This Writ Petition is filed by the Petitioner challenging the order of the 1st Respondent dated 27.11.2010, cancelling the quarry lease granted to him. 2. The facts, in a nutshell of the case of the Petitioner, are that by notification dated 28.1.2009, the 1st Respondent called for tenders for stone quarries in the lands in S.No.383/2B (Part 2) measuring 2.00.0 hectares in Erumapalayam Village, Salem Taluk and District under the Rule 8(1) of the Tamil Nadu Minor Mineral Concession Rules, 1959. The Petitioner submitted his tender on 23.2.2009, participated in the auction held on 24.2.2009, offered Rs.20,15,000/, became the highest bidder and paid 10% of the bid amount on the same day. Thereafter, the Petitioner paid the balance 90% of the bid amount on 4.3.2009. By proceedings dated 19.5.2009, 1st Respondent granted quarry lease for the said lands for a period of 10 years from the date of the execution of the lease deed. However, the 1st Respondent did not furnish the demarcated map and the draft lease deed for signature and return. But, the 1st Respondent, without complying with the mandatory requirements, issued a notice dated 29.10.2010, requiring the Petitioner to appear before him to show cause as to why the lease granted to the Petitioner shall not be cancelled and the entire lease amount paid by him shall be forfeited under Rule 8(7). The Petitioner appeared before the 1st Respondent on 22.11.2010 and offered his explanation. However, the 1st Respondent has passed the impugned order, cancelling the lease granted to the Petitioner and forfeiting the amount of Rs.20,15,000/-, security deposit of Rs.2,01,500/-and the area assessment fee of Rs.22,200/-under Rule 8(7) of the Tamil Nadu Minor Mineral Concession Rules, 1959, on the ground that the lease deed was not executed. Hence, this Writ Petition has been filed. 3. Hence, this Writ Petition has been filed. 3. The learned counsel for the Petitioner contended that cancellation of lease and forfeiture of the lease amount, security deposit and area assessment amount will not arise, since the 1st Respondent has not complied with the Rule 8(6)(C), which mandates the communication of draft lease deed and sketch showing the lease hold area and that failure to execute the lease deed is not on account of the fault on the part of the Petitioner, but it is on the failure on the part of the Respondents to comply with the mandatory requirements, as stipulated in Rule 8(6)(C) and that the other requirements to be complied with by the Petitioner will arise only after receipt of the draft lease deed and the sketch and hence, the impugned order is illegal and sought for quashing of the impugned order. 4. The learned Special Government Pleader for the Respondents submitted that since the Petitioner did not pay the security deposit and area assessment and furnish the required stamp papers, within time of 15 days as stipulated in the proceedings dated 19.5.2009 and in terms of the auction tender notification, the quarry lease granted to the Petitioner has been cancelled by the impugned order, apart from forfeiting the security deposit, lease amount and area assessment amount, which warrants no interference by this court. 5. This court heard and considered the submissions made by the learned counsel on either side and also perused the materials placed on record. 6. It is not in dispute that the Petitioner is the successful bidder and by proceedings dated 19.5.2009, the Petitioner was granted lease for a period of 10 years. The Petitioner also paid the entire lease amount, which is also not disputed. However, the lease granted was cancelled by the impugned order, forfeiting the lease amount and security deposit, on the grounds that the Petitioner did not pay the security deposit and area assessment fee, within time of 15 days and that the lease deed was not executed. 7. The Petitioner also paid the entire lease amount, which is also not disputed. However, the lease granted was cancelled by the impugned order, forfeiting the lease amount and security deposit, on the grounds that the Petitioner did not pay the security deposit and area assessment fee, within time of 15 days and that the lease deed was not executed. 7. It is the specific case of the Petitioner that when the 1st Respondent has not complied with the provisions of Rule 8(6)(C), which mandates the communication of draft lease deed and sketch, showing the lease hold area, the other requirements to be complied with by the Petitioner will arise only after receipt of the draft lease deed and the sketch and hence, the impugned order is illegal. 8. At this juncture, it is necessary to refer to the relevant conditions, provisions and rules. Rule 8(6)(C) reads as under:- (C) On receipt of the original challan for payment of the balance 90% of the bid amount or tendered amount from the successful bidder or tenderer, the order of the district Collector granting the lease in favour of the said person shall be communicated to him accompanied with (i) a copy of the draft lease deed as in the form in Appendix I to these rules and (ii) a map of the surveyed and demarcated area granted on lease to him. On receipt of the above order of the Collector, the grantee of the lease shall produce within the stipulated time (i) the original challan for remittance of the balance amount indicated in the order of the District Collector towards security deposit which is payable at 10% of the lease amount or five thousand rupees whichever is greater; (ii) the draft lease deed; (iii) the map of the area granted on lease with the signature of the applicant and (iv) required stamp papers for preparing the original lease deed.” 9. Conditions (M) and (,) of Part III of the Tender Notification dated 30.01.2009 read as under:- 10. Conditions (M) and (,) of Part III of the Tender Notification dated 30.01.2009 read as under:- 10. Rule 8(7) reads as under:- “(7) Where the District Collector has granted a quarrying lease to an applicant, if the applicant fails to produce the original chalan for remittance of the amounts specified in the lease granting order or fails to produce the signed copy of the demarcated map of the area or fails to produce the required stamp papers for preparing the lease deed or fails to execute the lease deed within the stipulated time, the District Collector may cancel the order granting the lease to the defaulter and forfeit the earnest money deposit and all amounts paid by him to the State Government In the case of an area for which there are two or more applicants, after cancellation of an order granting the quarrying lease to the defaulter, the District Collector may grant the quarrying lease in favour of the next below highest bidder or tenderer, subject to the provisions of sub-rule 6(b). If the next highest bidder or tenderer is not communicating his acceptance of such an offer of the District Collector within ten days from the date of receipt of the district Collector's offer, the District Collector shall issue fresh notification in the District Gazette calling for retender applications for the area concerned. ” 11. As per Rule 8(7), the Authority is empowered to cancel the lease and forfeit the lease amount, etc. on failure of production of necessary documents by the assessee. As per Rule 8(6)(C), on payment of the lease amount, a copy of the draft lease deed in required Form and a map of the surveyed and demarcated area granted on lease are to be furnished to the lessee and thereafter, on receipt of the said documents, the lessee shall produce the draft lease and the map, along with the required stamp papers for preparing the original lease deed. Similar conditions are also stipulated in Conditions (M) and (,) of Part III of the Tender Notification dated 30.01.2009. 12. Similar conditions are also stipulated in Conditions (M) and (,) of Part III of the Tender Notification dated 30.01.2009. 12. When it is the specific case of the Petitioner that he was not given the draft lease deed along with the map of the surveyed and demarcated area granted on lease, in the absence of any evidence produced on the side of the Respondents to show that the said documents were furnished to the Petitioner, it can be safely held that as the said documents were not served to the Petitioner so as to enable him to comply with the other provisions, there was no default on the part of the Petitioner as alleged by the Respondents and the question of non execution of the lease deed by the Petitioner as observed in the impugned order, does not arise and the non execution of the lease deed is only a failure on the part of the Respondents by not furnishing the draft lease deed, despite the fact that the Petitioner had paid the entire lease amount and consequently, the other requirements does not arise. In other words, when there was no compliance of Rule 8(6)(c), invoking the provisions of Rule 8(7) is not sustainable. The Petitioner has also stated that he is also ready and willing to furnish the non judicial stamp papers and to execute the lease deed, after receipt of the draft lease and the sketch. 13. In view of the above reasons and the relevant provisions, as discussed above, this court is of the view that the impugned order is liable to be set aside and the entire proceedings has to be redone. Accordingly, the impugned order is set aside and the matter is remanded back to the Respondents for fresh consideration. The Respondents are directed redo the entire proceedings, after giving opportunity to the Petitioner, on merits and in accordance with law, within a period of six weeks from the date of receipt of a copy of this order. 14. With the above directions, this Writ Petition is disposed of. No costs. Consequently, the connected MPs are closed.