Madras High Court
V.Sankarasubbu (Died) vs The Government Of Tamil Nadu on 24 January, 2023
2023/MHC/340
W.P.No.5243 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.01.2023
CORAM :
The HONOURABLE DR.JUSTICE ANITA SUMANTH
W.P.No.5243 of 2010
1.V.Sankarasubbu (died)
2.S.Petchiammal
3.M.Valli
4.S.Sundari
5.M.Seetha
6.K.Sivakami
7.S.Paramasiva Iyyappan
(P2 to P7 substituted as LRs of
deceased sole petitioner vide order
dated 06.01.2023 made in
WMP No.34257/22 in WP 5243/10
by ASMJ) .. Petitioners
vs
1.The Government of Tamil Nadu,
Rep. By its Secretary,
Industries Department,
Fort St.George, Chennai – 600 009.
2.The Director of Geology and Mining,
Guindy, Chennai – 600 032.
3.The District Collector,
Tirunelveli District,
Tirunelveli. .. Respondents
Petition filed under Article 226 of the Constitution of India
praying to issue a writ of certiorarified mandamus to call for the
records of the first respondent relating to G.O.(D)No.452, Industries
(MMC.1) Department, dated 8.12.2009 confirming the order of the
second respondent in Rc.No.8857/MM5/2007 dated 2.6.2008 and
the order of the 3rd respondent in Roc.M3/94816/03 dated
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1/10
W.P.No.5243 of 2010
20.07.2004, quash the same and direct the 3rd respondent to refund
the proportionate lease amount for the unexpired period of lease
i.e., one year and two months (from 1.10.2003 to 26.11.2004) with
interest from 1.10.2003, and return the Security deposit furnished
in the form of KVP in respect of the leasehold area of the petitioner
in S.F.No.115 (Part-II) of Kansapuram Village, Palayamkottai Taluk,
Tirunelveli District.
For Petitioner(s) : Mr.V.Sanjeevi
For Respondents : Mr.B.Vijay
Additional Government Pleader
ORDER
1. The petitioner is deceased as on date and is represented
by his legal heirs who have been impleaded pending writ petition.
The petitioner is a successful applicant to the tender application for
grant of lease for quarrying of land. He had been allocated land ad-
measuring 10.00.0 hectares in S.F.Nos.115 (Part-II) in Kansapuram
Village, Palayamkottai Taluk, Tirunelveli District for a period of three
years. The period of licence is 27.11.2001 to 26.11.2004.
2. During the tenure of lease, Rule 38A came to be
inserted as part of Tamil Nadu Minor Mineral Concession Rules,
1959 (in short, '1959 Rules'). This Rule, recognizing the damage
caused to the environment by virtue of unbridled, unfettered and
uncontrolled quarrying of sand, directed that the permission / lease
granted in ryotwari land for quarrying of sand shall cease to be
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W.P.No.5243 of 2010
effective on and from the date of coming into force of the Rule. To
be noted, the effective date was 3.10.2003. The Rule further
stipulates that the proportionate lease amount for unexpired period
of lease and unadjusted seigniorage fee, if any, shall be refunded to
the lease holder.
3. The Rule was subject-matter of challenge before a
learned Single Judge, who had granted an interim direction in
favour of the lease holders. As against the interim direction, the
State of Tamil Nadu filed Writ Appeals, at which juncture, the First
Bench of this Court called to its file the writ petitions that were
pending on this score as well.
4. A consolidated order was passed in the case of State of
TamilNadu and another v P.Krishnamoorthy and ors (2004-3- LW
738) upholding the constitutionality of the Rule. Since the lis in this
case relates to the prayer of refunding the licence fee for the
unexpired period of lease, the relevant observations of the Division
Bench on this count are extracted below:-
“3.The respective District Collectors shall issue
notices to the petitioners with regard to the
mining leases where there is an allegation of
infraction of environmental laws and if there is
a contest, then hold an enquiry by affording
opportunity to them and then pass orders
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W.P.No.5243 of 2010
basing on the material on record. The above
exercise shall be made by the District Collector
within a period of two months from the date of
receipt of a copy of this order and until then,
the status quo with regard to mining operations
as obtained on this day, shall be maintained.”
5. To be noted that, the State had filed further appeals
before the Hon'ble Supreme Court and in the case of State of Tamil
Nadu and another v P.Krishnamurthy and others (2006) 4 SCC 517,
the decision of the Division Bench was modified marginally.
Paragraphs 36 and 37 of the judgment of the Supreme relevant and
extracted below:-
“36. 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 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.
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W.P.No.5243 of 2010
37.We, accordingly, allow these appeals in part.
In place of the conditions stipulated by the
Division Bench while upholding the validity of
Rule 38-A, we hold and direct as follows:
(i) That part of Rule 38-A which vests the
exclusive right to quarry sand, in the State
Government, is upheld.
(ii) That part of Rule 38-A which purports to
terminate quarrying leases / permissions
forthwith (from 2.10.2003) is read down in
terms of para 26 above.
(iii) The provision in Rule 38-A for refund of
proportionate lease amount for the unexpired
period of lease and unadjusted seigniorage fee,
shall remain undisturbed.
(iv) It is made clear that except to the limited
relief as a consequence of reading down as per
para 26 above, the respondents will not be
entitled to any other reliefs which have been
granted by the High Court.
(v) Parties to bear their respective costs.”
6. Qua the lis, what is relevant to note is that while the
Rule stipulated that the licence holder would be entitled to a refund
of the licence fee for the entirety of the unexpired lease period, the
Hon'ble Supreme Court reduced the period to six months. Thus, the
entitlement of licence holders to refund of lease rent for the period
of six months or unexpired lease period, whichever was less, would
commence from 01.10.2003. In this case, the lease expires on
26.11.2004 and thus the period would be six months, spanning till
30.04.2004. With the achievement of the aforesaid date, i.e.,
30.04.2004, I am of the considered view that the transaction of
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W.P.No.5243 of 2010
lease qua the petitioner and the State would stand determined by
operation of statute and this chapter closed, once and for all.
7. The petitioner does not appear to have made any
request for refund of the licence fee for the unexpired period
proximate to the determination of lease. While this is so,
proceedings came to be initiated by the respondents commencing
from July, 2000 and thereafter, and culminating in order dated
20.07.2004 terminating the lease agreements executed and on
22.12.2006 levying penalty for excess quarrying in the said land.
8. Though a tentative attempt is made to state that the
levy of penalty had commenced even earlier, this Court is not
persuaded to accept that submission, seeing as the initiative in this
regard transpired only after April 2004, and actively only from June
2006 onwards, qua the levy of penalty. The petitioner has suffered
an order of imposition of penalty and has not challenged the same
by way of appeal. It is the categoric statement of the petitioners
that they have acceded to the levy of penalty and now seek only
refund of licence fee after debiting the penalty imposed.
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W.P.No.5243 of 2010
9. The question that arises is of the entitlement of the
petitioner for refund of the fee. The argument of the State is that no
refund is contemplated in a situation where the activity carried on
by the licence holder is in violation of licence conditions. However,
the fact remains that the State has woken to the violations
committed by the petitioner long past the determination of lease by
operation of Rule 38A.
10. Had there been any move by the State to initiate and
conclude the proceedings for levy of penalty, prior to 30.04.2004,
the respondents could well have maintained their case that the
petitioner is not entitled to the refund as sought for. In this
connection, useful reference may be made to the observations of
the Division Bench and the Hon'ble Supreme Court as extracted
earlier. This is clear from the last line of paragraph 36 of the
Judgment being '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.'
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W.P.No.5243 of 2010
11. Thus, it is clear that, if at all, the licence holders were
suspected to be defaulters, such defaults were to be enquired into
and order passed deciding such issues, within a period of six months
from 01.10.2003. In the present case, though the order levying
penalty refers in the reference column to certain proceedings in
2002, the State has neither putforth the argument that such
proceedings are germane nor has produced a copy thereof.
Admittedly, and in any event, nothing was done in this regard till
2006 which is long past the effective date of 30.04.2004. In light of
the discussion as aforesaid, I am of the view that, the petitioner is
entitled to refund of licence fee qua the period 02.10.2003 to
30.04.2004, less the amount of penalty.
12. This writ petition is allowed to the extent as indicated
hereinabove. The amount as indicated in paragraph 8 above shall be
quantified and paid over to petitioner within a period of four weeks
from the date of receipt of a copy of this order.
13. At this stage, learned counsel for the petitioner stakes
his claim for interest in regard to the amount of refund sought for,
and ordered above, relying upon the decision in re
M.Shanmughasundaram v The District Collector and others
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W.P.No.5243 of 2010
(W.P.(MD) No.11164 of 2016 dated 21.09.2017) which is factually
distinguishable from the present case. Likewise, learned counsel for
the respondents stakes his claim for interest on the demand or
penalty under order dated 22.11.2006. On balance, I would
conclude that neither party is entitled to interest. No costs.
24.01.2023
Index:Yes
Neutral Citation:Yes
ssm
To
1.The Secretary,
Industries Department,
Fort St.George, Chennai – 600 009.
2.The Director of Geology and Mining,
Guindy, Chennai – 600 032.
3.The District Collector,
Tirunelveli District,
Tirunelveli.
https://www.mhc.tn.gov.in/judis
W.P.No.5243 of 2010
DR. ANITA SUMANTH,J.
ssm
W.P.No.5243 of 2010
24.01.2023
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