Madras High Court
S.Petchiammal vs The Government Of Tamil Nadu on 28 June, 2023
W.A.No.1131 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.06.2023
CORAM
THE HON'BLE MR.SANJAY V.GANGAPURWALA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.A.No.1131 of 2023
1.S.Petchiammal
2.M.Valli
3.S.Sundari
4.M.Seetha
5.K.Sivakami
6.S.Paramasiva Iyyappan .. Appellants
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
Prayer: Appeal filed under Clause 15 of the Letters Patent against the
order of the learned Single Judge dated 24.1.2023 passed in
W.P.No.5243 of 2010.
Page 1 of 10
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W.A.No.1131 of 2023
For the Appellants : Mr.V.Sanjeevi
For the Respondents : Mr.P.Muthukumar
State Government Pleader
assisted by
Mrs.R.Anitha
Spl. Government Pleader
for respondents 1 to 3
JUDGMENT
(Delivered by the Hon'ble Chief Justice)
We have heard Mr.V.Sanjeevi, learned counsel for the appellants
and, Mr.P.Muthukumar, learned State Government Pleader, assisted by
Mrs.R.Anitha, learned Special Government Pleader for respondents 1
to 3.
2. The appellants assail the order of the learned Single Judge
dated 24.01.2023 in W.P.No.5243 of 2010 to the extent of granting
relief of refund of the licence fee and interest on the said amount only
up to 30.04.2004 and not granting it till 26.11.2004.
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W.A.No.1131 of 2023
3. Learned counsel for the appellants submits that the period
of quarrying lease was up to 26.11.2004, however, in view of the
operation of Rule 38A of the Tamil Nadu Mines and Mineral
Concession Rules, 1959 (for short, “1959 Rules”) and the judgment
of the Apex Court, the period of licence was restricted for a period
of six months or unexpired lease period, whichever was less, and
would commence from 1.10.2003.
4. The learned Single Judge, in view of that, directed refund of
the licence fee qua the period 02.10.2003 to 30.04.2004.
According to learned counsel for the appellants, the same ought to
be for the unexpired period of lease i.e. 26.11.2004.
5. Learned Government Pleader submits that, in fact, the writ
petitioner would not be entitled to any refund of the amount,
inasmuch as the lease was cancelled on or about 20.07.2004 for
violation of the terms and conditions. Learned Government Pleader
further, in alternate, submits that if at all it is held that the writ
petitioner is entitled to refund, then the period of refund cannot be
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W.A.No.1131 of 2023
more than what has been granted by the learned Single Judge.
6. We have considered the submissions.
7. There is no dispute that as per the terms of lease, the
period of lease of the writ petitioner was up to 26.11.2004. During
the midst of the said period, Rule 38A of the 1959 Rules was
introduced. By virtue of which, the licence granted for quarrying
abruptly came to an end. The matter went up to the Apex Court in
the case of State of Tamil Nadu and another v. P.Krishnamurthy
and others, (2006) 4 SCC 517, wherein the following order was
passed:
“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
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W.A.No.1131 of 2023
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.”
8. The Apex Court in the said judgment clarified 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.
9. The six months period as per the judgment of the Apex
Court came to an end on 30.04.2004. Even as per the judgment of
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W.A.No.1131 of 2023
the Apex Court, the State Government could not have cancelled the
lease after a lapse of six months.
10. The learned Single Judge has rightly held about the
entitlement of the writ petitioner for refund of the amount for the
unexpired period, however, has calculated the period up to
30.04.2004.
11. Paragraph 37 of the judgment of the Apex Court in the
case of P.Krishnamurthy, supra, needs to be considered. The Apex
Court observed as under:
“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
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W.A.No.1131 of 2023
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.”
12. The Apex Court specifically observed that the provision in
Rule 38A of the 1959 Rules for refund of the proportionate lease
amount for the unexpired period of lease and unadjusted
seigniorage fee shall remain undisturbed. In view of that, the writ
petitioner was entitled to refund of the proportionate lease amount
for the unexpired period of lease and unadjusted seigniorage fee.
In view of that, we modify the order of the learned Single Judge to
the extent as under:
“The appellants, who are the legal heirs of the
original writ petitioner, are entitled to refund of
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W.A.No.1131 of 2023
licence fee qua the period 02.10.2003 to
26.11.2004, less the amount of penalty.”
13. The appellants further seek interest on the said amount of
refund. On the amount to be recovered by the appellants, the
respondent State authority shall pay interest at the rate of 6% per
annum (simple interest). The State Government may deduct the
amount of penalty with interest as on 26.11.2004 and then pay the
amount of refund of the licence fee for the period 02.10.2003 to
26.11.2004 with interest at 6% per annum (simple interest).
14. With these observations, the writ appeal is partly allowed.
In case, the State Government has retained the Kisan Vikas Patra
(KVP) as security, then the same be returned to the appellants.
There will be no order as to costs.
(S.V.G., CJ.) (P.D.A., J.)
28.06.2023
Index : Yes/No
Neutral Citation : Yes/No
bbr
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W.A.No.1131 of 2023
To
1.The Secretary,
Government of Tamil Nadu,
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.
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W.A.No.1131 of 2023
THE HON'BLE CHIEF JUSTICE
AND
P.D.AUDIKESAVALU, J.
bbr
W.A.No.1131 of 2023
28.06.2023
https://www.mhc.tn.gov.in/judis
