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K.Dakshinamurthy v. District Collector - Writ Petition No.1186 of 2005  RD-TN 807 (5 March 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 05.03.2007
THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN
Writ Petitions Nos.1186 and 4137 of 2005
K.Dakshinamurthy ..Petitioner in both the writ petitions Vs.
The District Collector
Villupuram. ..Respondent in both the writ petitions Writ Petition No.1186 of 2005 filed under Article 226 of the Constitution of India for the issue of writ of mandamus directing the respondent to execute the lease in favour of the petitioner herein for a period of five years in respect of stone quarry situated in survey No.97/19 Part 7 over an extent of 6.19.0 hectares in Tiruvakkarai village, Vanur taluk, Villupuram District. Writ petition No.4137 of 2005 filed under Article 226 of the Constitution of India for the issue of writ of certiorarified mandamus calling for the records on the file of the respondent in his proceedings in Ref. A/G & M/402/94 dated 30.01.2005, quash the same and direct the respondent herein to execute the lease in favour of the petitioner herein for a period of five years in respect of stone quarry situated in survey No.97/19 part 7 over an extent of 6.19.0 hectares in Tiruvakkarai village, Vanur taluk, Villupuram District.
For Petitioner : Mr.M.Muthappan
For Respondent : Mr.Thirugnanam, Spl. G.P.
The parties, the relief sought for and the cause of action in both the writ petitions are one and the same and on consent both the writ petitions are taken up together for disposal.
2. The petitioner challenges the proceedings of the respondent in Ref. A/G & M/402/94 dated 30.01.2005 by which the respondent rejected the request of the petitioner to execute the lease deed in his favour for a period of five years in respect of stone quarry situated in survey No.97/19 part VII over an extent of 6.19.0 hectares in Tiruvakkarai village, Vanur Taluk, Villupuram District and further the 50 of the bid amount paid by him was forfeited to Government on the ground that the petitioner violated the auction sale conditions by not remitting the balance bid amount in time. The petitioner also sought for mandamus by way of direction to the respondent to execute the lease in favour of the petitioner by quashing the above proceedings.
2. The precise facts on which the writ petitions have been filed proceed as follows : The respondent issued a gazette notification in the district gazette No.3 dated 27.12.1993 notifying several stone quarries situated at Villupuram district and calling for tenders for the same. The petitioner's bid in a sum of Rs.80,300/- was accepted as the highest bid and the petitioner has been declared as the highest bidder in respect of the above quarry on 20.01.1994. The petitioner paid a sum of Rs.1,000/- as Earnest Money Deposit and a sum of Rs.40,150/- being 50 of the lease amount on 21.01.1994 and he paid another sum of Rs.15,000/- on 02.02.1994.
3. The petitioner being the highest bidder as per the notification has to pay local cess and local cess surcharge on the bid amount. As the levy of local cess and local cess surcharge by the State Government was held to be incompetent by the Supreme Court, the petitioner filed writ petition No.1520 of 1994 seeking the levy of local cess and local cess surcharge on the lease amount to be illegal, in which writ petition, interim order of demand of local cess and local cess surcharge was granted in favour of the petitioner. When the petitioner offered to pay the balance lease amount, he was informed that one Sevanammal and other ceylon repatriates have filed the writ petitions Nos.687 to 689 of 1994 on 07.01.1994 claiming preferential treatment under the provisions of the Tamil Nadu Minor Mineral Concession Rules, 1959. As their application for the preferential treatment was pending before the authorities concerned in respect of the subject quarry, they sought for quashing the tender proceedings. Pending those writ petitions they also obtained an order of stay of confirmation of the lease in favour of the petitioner. Thus, because of the pendency of those writ petitions further proceedings remained in a stalement. While that being so, it was brought to the notice of the petitioner on 18.01.1994 some other third parties (M.Subramanian and others) have filed writ petitions Nos.823 to 825 of 1994 challenging the very notification under which tender has been granted in favour of the petitioner and in those writ petitions also interim order of stay of all further proceedings of the notification was granted.
4. In the meanwhile, on 18.07.1994 the writ petition filed by the petitioner in W.P. No.1520 of 1994 challenging the demand of local cess and local cess surcharge was allowed and it has become final. The interim orders granted in writ petitions Nos.823 to 825 of 1994 was made absolute on 31.03.1995. Because of the orders granted in writ petitions Nos.823 to 825 of 1994 and 687 to 689 of 1994 further proceedings have been completely deferred. Subsequently, writ petitions Nos.823 to 825 of 1994 filed by the third parties came to be dismissed by this Court on 22.09.1997. Likewise, the writ petitions Nos.687 to 689 of 1994 came to be dismissed by this Court as infructuous on 27.04.2000.
5. Thereupon, the petitioner made a representation on 24.02.2004 to the effect that as all the legal impediments stalling the further proceedings has now been cleared up, the lease granted in favour of the petitioner may be confirmed and further proceeding of execution of lease deed may be proceeded with. Pursuant to the same, the respondent by a notice on 05.01.2005 called upon the petitioner to appear for enquiry on 17.01.2005. The petitioner attended the enquiry and reiterated his stand that he is ready to pay the balance lease amount and lease may be confirmed and the petitioner may be allowed to quarry. However, by proceedings dated 30.01.2005 the respondent informed the petitioner that the amount paid by the petitioner had been forfeited as the petitioner had not paid the balance amount within the time stipulated in the auction conditions. The correctness of the said order is canvassed in these writ petitions and a further a direction to execute the lease deed in his favour on the petitioner making payment of the balance amount is the relief sought for by the petitioner in one of these petitions.
6. In the above stated sequence of events, the non payment of the balance amount as required by the gazette notification which is a reason stated by the respondent to forfeit the amount paid by the petitioner and to non suit the petitioner for grant of lease, cannot be attributed to the petitioner, as all the acts and deeds of the vested and interested persons with desparate attitude to knock down the quarry by filing writ petitions and obtaining interim orders, were not prevented by the respondent. Apart from that, Rule 8(6)(a) & (c) of the Tamil Nadu Minor Mineral Concession Rules, provide that after payment of 50 of the lease amount, the Collector has to confirm the lease in favour of the petitioner and thereafter call upon the petitioner to execute the lease deed by annexing a draft sale deed after making the payment of balance amount of 50% of the lease amount. In this case, no such direction was issued by the District Collector. Of-course, he was legally prevented by means of Court orders and all those writ petitions have been disposed off only in the year 2000. Hence, the action of the respondent in forfeiting the amount already paid and denying to grant the lease in favour of the petitioner by executing the lease deed is not only against the statutory provision, but also against the law law laid down by the Supreme Court in the case of S.Ganesan v. District Collector, Tiruchirapalli, 2002 (6) Supreme 145 and in the case of V.Karnal Durai v. District Collector, Tuticorin, (1999) 1 SCC 475, which decisions were followed by this Court in writ petition No.38730 of 2003 dated 07.02.2004, in which in almost identical set of facts, this Court directed the respondent to execute the lease deed in favour of the highest bidder for a period of three years by following the above referred to supreme court judgments. However in view of the lapse of several years, this court directed the petitioner therein to pay 100% over and above the lease amount paid in that case. The petitioner in the present writ petitions is willing to have the same order, in the sense that the petitioner in this case also is also willing to pay 100% over and above the amount offered by him.
7. On the other hand, the respondent filed a counter stating that the petitioner, though became a successful bidder in the auction held on 20.01.1994 has not paid the balance amount. From 16.04.1994 onwards tender cum lease procedures have been introduced so as to get maximum revenue to the Government. If the auction is confirmed in favour of the petitioner, the revenue loss to the Government would be very high. Only the confirmation of the auction has been stayed by the earlier proceedings and hence, the petitioner ought to have paid the balance amount of 50 of the lease amount which he did not do and thus, he rendered himself disentitled.
8. Heard the learned counsel on either side and perused the materials available on record.
9. From the facts narrated above, it could be seen that the two objections on the part of the respondent is that (1) the petitioner, in spite of the interim orders granted by the High Court, at the instance of two third parties one staying the confirmation order and the other staying all further proceedings of the notification, ought to have paid the balance amount within ten days from the date of auction and (2) that from 1994 the rule position has been changed by introducing tender cum lease.
10. From the totality of the circumstances of the case, I am not able to sustain the arguments of the learned Government Pleader to non suit the petitioner.
11. The Rule position at the relevant point of time was : Section 8. Leasing of lands for quarrying minor minerals other than the minerals covered under rules 8-a and 8-C of these Rules -- (1) ....
(3) Every tender application made for grant of a quarrying lease shall be accompanied by --
(b) twenty five per cent of the tender amount offered in the application as earnest money deposit which shall be remitted through a demand draft obtained from any nationalised bank and it shall be drawn in favour of the District Collector concerned by designation only; ......
(6) (a) ...
(6) (b) ...
(6)(c)The order of the District Collector granting the lease in favour of any applicant shall be communicated to him accompanied with a copy of the draft lease deed as in the Form in Appendix I to these rules and a map of the area and demarcated area granted on lease to him. On receipt of the above order of the District Collector, the applicant shall produce the original chalan for the remittance of the balance amounts indicated in the order of the Collector, the draft lease deed and the map of the area with the signature of the applicant within the stipulated time along with the required stamp papers for preparing the original lease deed and also deposit as security ten percent of the annual lease amount or five thousand rupees, whichever is greater.
12. In view of the pendency of the writ petitions filed by the third parties, it is obvious that the respondent has not followed Rule 8(6)(c) of the Tamil Nadu Minor Mineral Concession Rules, 1959. There is no statutory provision which requires that the 50 of the balance lease amount has to be paid within ten days except in the tender notification, which was the subject matter of challenge in the earlier writ petitions filed by the third parties and its further proceedings were stayed. Even assuming for a moment that the interim orders granted by this Court has not to be taken as a legal impediment, the respondent, on the expiry of the reasonable time from the date of auction, would have taken action against the petitioner calling upon the petitioner to pay the balance amount by informing that the amount already deposited would be forfeited in case of default. Such an action has been taken by the respondent only after the petitioner requested for execution of the lease deed, in the year 2004. Hence, the inaction on the part of the respondent till 2005 and passing of the order of forfeiture thereafter, makes it clear that even the respondent was alive to the occasion that the interim orders passed by this Court have tied the hands of the parties from proceeding further. Hence, the non payment of 50% of the amount within ten days from the date of auction was because of the crucial factual circumstances of interim orders passed by this Court in the writ petition filed at the instance of the third parties was in force and cannot be attributed as a default on the part of the petitioner. That was the reason for the Supreme Court for issuing direction to execute the lease deed even after the expiry of the lease period, in the case of S.Ganesan v. District Collector, Tiruchirapalli, 2002 (6) Supreme 145, which in turn followed the decision of the apex Court in the case of V.Karnal Durai v. District Collector, Tuticorin, (1999) 1 SCC 475, which decisions were followed by this Court in writ petition No.38730 of 2003 cited supra.
13. Further, in a comparable case, in the case of Mohammed Gazi v. State of MP, (2000) 4 SCC 342 the tender for disposal of tendu leaves was granted to the lessee, but was not able to collect the leaves because of the stay order granted by the High Court at the instance of a third party. Tendu leaves, being perishable item, became useless. But the respondent, by an order compelled the petitioner to execute the contract by lifting the tendu leaves and to deposit the balance contract amount. That action of the respondent was questioned by the highest bidder before the Court. The High Court took the view that there was no fault on the part of the appellant, but as the State could not also be held responsible for the fault, directed the refund of the earnest money deposit to the appellant after deducting a sum of Rs.30,000/- therefrom. The Supreme Court held that the High Court was not correct in deducting the same by holding that a person cannot be penalised for no fault of his. On account of the pendency of the writ petition filed by another party, in which the stay order granted by the Court, such a person cannot be directed to forfeit a part of the security amount deposited by him particularly when the Court itself found that even the equities were equally balanced between the State and such person. The maxim of equity, i.e., actus curiae neminem gravabit an act of the Court shall prejudice no man shall be applicable is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia the law does not compel a man to do what he cannot possibly perform and so stating the Supreme Court granted the relief in favour of the petitioner therein.
14. It is equally well settled that an order of stay granted pending writ petition comes to an end with the dismissal of the substantive proceedings and it is the duty of the Court in such cases put the parties in the same position they would have been but for the interim orders of the Court. Any other view would result in the order of the Court prejudicing the party for no fault of its and would also mean rewarding a writ petitioner inspite of his failure. Any such unjust consequences could not be countenanced by the Court (See ESI Corporation v. All India TIAC Employees Union, 2006 (3) LW 179).
15. The said decisions of the Supreme Court apply in all force to the case on hand. There was no fault on the part of the petitioner. Some third parties filed writ petitions against the Government restraining the respondent from confirming the auction and subsequently, the writ petitions were dismissed. The Government has not taken any action to demand the balance amount from the petitioner even thereafter. The legal maxim actus curiae neminem gravabit an act of the Court shall prejudice no man is equally applicable. The other maxim is, lex non cogit ad impossibilia the law does not compel a man to do what he cannot possibly perform is also applicable to this case as in this case, when there was an order of stay, the law shall not compel the respondent to commit contempt by accepting the amount from the petitioner for confirming the auction in his favour.
16. When all these points are decided in favour of the petitioner, one more point is swinging in the mind of the Court. That is as to whether for the extent of 6.19.0 hectares of land knocked down by the petitioner in the year 1994, a sum of Rs.80,300/- could be regarded as sufficient or justifiable revenue to the Government, which has parted its unreplenishable natural wealth for augmenting its income at this point of time. This Court is of the view that the amount offered in the year 1994, at any stretch of imagination, be considered as a reasonable amount to grant the relief now. The argument of the petitioner agreeing to pay 100 over and above the amount offered could also only be insufficient. In order to strike the balance between the revenue and the petitioner, I am of the view that the petitioner can very well be directed to pay 150% over and above the amount what was offered to have the benefit of the relief sought for in this writ petition.
17. For the foregoing reasons and in the light of the decisions cited supra, the writ petitions are disposed off with the direction to the petitioner to pay 150 more of the offered amount for the first year apart from other amounts the lessee is liable to pay as of now, within one month from the date of receipt of a copy of this order. On such payment, the respondent is directed to execute the lease deed for a period of three years from the date of execution of the lease deed. If the amount is not paid within the time granted, the petitioner will not be entitled to the relief. In as much as the lease period of five years for stone quarry was incorporated from 19.12.1996 onwards, the relief for five years' lease prayed for cannot be granted, as the notification for quarry lease was issued and auction was held well prior to the date of incorporation of five years in the Rules. No costs. mf
The District Collecor
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