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M.Sathyanathan v. The District Collector - WP.NO.37608 OF 2005  RD-TN 803 (22 November 2005)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HON'BLE MR.JUSTICE P.D.DINAKARAN
WP.NO.37608 OF 2005
WPMP.No.40317 of 2005
M.Sathyanathan .. Petitioner
1. The District Collector,
2. The Assistant Director,
(Geology & Mines),
Kancheepuram District .. Respondents
PRAYER :- Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus as stated therein.
For petitioner :: Mr.R.Sugumaran
For respondents :: Mr.R.Vijayakumar,G.A.
The question that arises in this writ petition is, "Whether it is obligatory on the part of the District Collector to grant lease in favour of the petitioner being the second highest bidder when the first highest bidder fails to perform his part of contract in terms of Rule 8(7) of the Tamil Nadu Minor Minerals Concession Rules, 1959, without resorting to calling for fresh tenders?"
2. The petitioner, having considerable experience in the field of stone quarrying, participated in the tender-cum-auction process called for by the respondents, in respect of the stone quarry No.2 in S.No.139 in Thalakkanancheri village, Tambaram taluk. In the said auction, one Mrs.Prabavathy Durairaj was the highest bidder and the petitioner was the second highest bidder. Since the said Mrs.Prabavathy Durairaj has not paid the remaining 90 of the bid amount within the stipulated period, her bid was impliedly cancelled automatically as per the terms of the Tamil Nadu Minor Mineral Concession Rules, 1959 ( for short, "the Rules"). Therefore, the petitioner, being the second highest bidder, made a representation dated 18.08.2004, before the first respondent, requesting to accept his bid and execute the lease deed in his favour. However, the first respondent issued a Notification dated 2.11.2005 calling for fresh tenders in respect of the impugned stone quarry, which is challenged in the present writ petition seeking a writ of certiorarified mandamus to quash the said Notification in so far as it relates to issuance of lease in respect of the impugned stone quarry and to direct the first respondent to consider the representation of the petitioner dated 18.08.2004 in accordance with law.
3. Mr.R.Sugumaran, learned counsel appearing for the petitioner challenges the impugned Notification on the following two grounds:- i) The District Collector ought to have granted the lease in favour of the petitioner being the second highest bidder, since the highest bidder has not pursued the lease by paying the balance bid amount. ii) The District Collector erred in calling for fresh tenders, without disposing the petitioner's representation seeking to confirm the bid in his favour.
4. On the other hand, the learned Special Government Pleader taking notice on behalf of the respondents justified the action of the District Collector in issuing the impugned notification. According to him, the confirmation of the second highest bid is not automatic in view of Rule 8(6)(b) of the Rules.
5. Before going into the question involved in the writ petition it is profitable to refer to the Tamil Nadu Minor Mineral Concession Rules, which are relevant for the purpose of this case.
"8(6)(a). Where only one tender application is received for an area, if there is no one to bid in the auction, the District Collector may grant the lease in favour of the single applicant if in his opinion the annual tender amount offered by the applicant is reasonable in the circumstances of the case and the grant of the lease to the applicant will be in the interests of mineral development. If the District Collector is not satisfied in the above aspects, he may reject the application communicating the reasons therefore in writing to the applicant and issue fresh notification in the District Gazette calling for re-tender applications for the area concerned. (b) Where two or more applications, are received for an area, the District Collector shall, ordinarily, grant the quarrying lease to the applicant who is declared as the offerer of the highest bid amount or highest tender amount whichever is greater;
Provided that where the District Collector is satisfied that the highest bid amount or tender amount fetched for an area is not reasonable in the circumstances of the case, it is open to the Collector to reject the said offer and refuse to accept the payment of 10 per cent of the bid amount/tender amount and the District Collector may order to bring the quarry for re-auction cum tender process. In such a case it is not necessary to pass any separate order for rejection of the highest bid/tender offer. (c) to (f) xxxxxxx
(7) Where the District Collector has granted a quarrying lease to an applicant, if the applicant fails to produce the original challan for remittance of the amounts specified in the lease granting map of the area or fails to produce the signed copy of the demarked 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 re-tender applications for the area concerned."
6. Now, let us consider the rival submissions of both the parties. According to the learned counsel for the petitioner, under Rule 8(7) of the Rules, the word 'may' employed in the expression, "the District Collector may grant the quarrying lease in favour of the next below highest bidder or tenderer", should be read as "shall".
7. It is true that though the word 'may' might connote merely an enabling or permissive power in the sense of the usual phrase "it shall be lawful", it is also capable of being construed as referring to a compellable duty, particularly when it refers to a power conferred on a court or other judicial authority, however, it depends upon the interpretation of statute in each case.
8. It is well-settled principle of interpretation that a statute is to be interpreted on its plain reading; in the absence of any doubt or difficulty arising out of such reading of a statute defeating or frustrating the object and purpose of an enactment, it must be read and understood by its plain reading. However, in case of any difficulty or doubt arising in interpreting a provision of an enactment, courts will interpret such a provision keeping in mind the objects sought to be achieved and the purpose intended to be served by such a provision so as to advance the cause for which the enactment was brought into force. If two interpretations are possible, the one which promotes or favours the object of the Act and purpose it serves, is to be preferred. At any rate, in the guise of purposive interpretation, the courts cannot rewrite a statute. A purposive interpretation may permit a reading of the provision consistent with the purpose and object of the Act, but the Courts cannot legislate and enact the provision either creating or taking away substantial rights by stretching or straining a piece of legislation. (vide: Sri Ram Saha v. State of W.B. (2004) 11 SCC 5080).
9. Further, as observed by Lord Campbell in Liverpool Borough Bank v. Turner reported in (1861) 30 LJ Ch 379, no universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope.
10. As held by the Supreme Court in Mansukhlal Vithaldas Chauhan v. State of Gujarat (1997) 7 SCC 622), what is determinative of the nature of duty, whether it is obligatory, mandatory or directory, is the scheme of the statute in which the duty has been set out. Even if the duty is not set out clearly and specifically in the statute, it may be implied as co-relative to a right.
11. Coming to the case on hand, Rule 8(7) of the Rules confers a discretion on the Collector to grant the lease to the next highest bidder in the event the highest bidder fails to produce the original challan for remittance of the amounts specified in the lease. The power conferred on the Collector is not obligatory or mandatory, but it is only discretionary, because the power conferred under Rule 8(7) is subject to the provisions of Rule 8(6)(b) of the Rules, whereunder it is specifically provided that in such a case it is not necessary to pass any separate order for rejection of the highest bid/tender offer.
12. I am therefore unable to accept the contention of the learned counsel for the petitioner that the word, 'may' in the expression, " the District Collector may grant the quarrying lease in favour of the next below highest bidder or tenderer" found in Rule 8(7) of the Rules should be read as 'shall', in view of the plain reading of Rule 8(7) read with Rule 8(6)(b) of the Rules.
13. On the facts of the case, the Collector having satisfied himself that there is no need to confirm the second highest bid, issued the impugned notification calling for fresh tenders, as the real intention of the Legislature in bringing the quarry in public auction is to augment the public revenue.
14. The court can only direct the authority to exercise discretion according to law, but, it is not for the court to direct the authorities, on which a statutory discretion is vested, to exercise such discretion in a particular manner. (vide:U.P.S.R.T.C. v. Mohd. Ismail reported in 1991(3) SCC 239).
15. In view of the above discussions, I am of the considered opinion that the District Collector has the discretion to issue the impugned notification calling for fresh tenders without considering the case of the petitioner being the second highest bidder, and accordingly, the contentions raised by the learned counsel for the petitioner fail. The writ petition stands dismissed. No costs. Consequently, connected W.P.M.P. is dismissed. To
1. The District Collector,
2. The Assistant Director,
(Geology & Mines),
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