BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT
DATED: 19/04/2012
CORAM
THE HONOURABLE MR.JUSTICE K.MOHAN RAM
W.P.(MD)No.12038 of 2011
and
M.P.(MD)No.1 of 2011
Mrs.K.Seetha ... Petitioner
Vs.
The District Collector,
Thoothukudi District,
Thoothukudi. ... Respondent
PRAYER
Writ Petition filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Certiorarified Mandamus, to call for the
records of the respondent's order bearing Na.Ka.G.M.1/277/2011, dated
01.07.2011, quash the same and direct the respondent to issue transport permits
on payment of necessary seigniorage to transport the total quantity of 1,778.948
cbm of marketable granite quarried during the currency of the lease and now
lying at the said quarry lands measuring 2.29.5 hectares, comprised in Survey
Nos.17/9A, 9B, 10A, 18/9, 10,19/4,6,7,8,12 (part) and 460/13 (part) situated in
Keelamangalam and Pasuvanthanai Villages, Ottapidaram Taluk, Thoothukudi
District.
!For Petitioner... Mr.K.Ramakrishna Reddy
^For Respondent... Mr.K.Mahendran
Special Government Pleader
********
:ORDER
******
By consent of the learned counsel appearing on either side, the Writ
Petition itself is taken up for final disposal.
2. The brief facts, which are necessary for the disposal of the
above Writ Petition, are set out hereunder:
(a) The petitioner was granted a granite quarrying lease by the
Government of Tamil Nadu by G.O.(3D) No.89, Industries (MMB2) Department, dated
04.11.1999, in respect of the petitioner's patta lands measuring 2.29.5
hectares, comprised in Survey Nos.17/9A, 9B, 10A, 18/9, 10, 19/4, 6,7,8,12
(part) and 460/13 (part) situated in Keelamangalam and Pasuvanthanai Villages,
Ottapidaram Taluk, Thoothukudi District. Necessary lease agreement has been
executed on 22.11.1999 and duly registered on 20.12.1999. The said lease was for
a period of ten years that was from 22.11.1999 to 21.11.2009.
(b) Pursuant to the lease granted, the petitioner had quarried and
transported the mineral from the said quarry strictly by following the
conditions of the lease and Rules, after obtaining necessary transport permits
and after paying the required seigniorage fee. There was no violation whatsoever
on the part of the petitioner during the currency of the lease. The lease
period expired on 21.11.2009. During the currency of the lease, the petitioner
is said to have quarried marketable material and the materials sold to the
buyers have been removed and transported from the quarry with valid transport
permits issued by the respondent. On the date of the expiry of the lease as per
the stock register of the petitioner, there is a stock of total quantity of
1,778.948 cbm of marketable granite lying at the quarry. The said stock has been
verified and counter-signed by the Assistant Director of Geology and Mining,
Thoothukudi. According to the petitioner, she is entitled to remove and
transport the said quantity of 1,778.948 cbm. Since the request of the
petitioner to issue transport permits to transport the said materials on payment
of necessary seigniorage fee was not considered by the respondent, a
representation dated 04.04.2011 was sent to the respondent seeking transport
permit. By order dated 01.07.2011, the request was rejected. The said order of
rejection is challenged in the above Writ Petition.
3. On behalf of the respondent, a counter-affidavit sworn to by
Mr.Ashish Kumar, the District Collector of Tuticorin District has been filed on
07.03.2012. In the said counter-affidavit, it is stated that the petitioner
informed in her petition dated 18.11.2006 that she had stopped the quarrying
operations for the last two months and requested to treat the quarry as closed
and as such, the petitioner stopped quarrying three years before the expiry of
lease period on 21.11.2009. It is stated that the petitioner has submitted the
petition dated 04.04.2011 after a lapse of more than 3 + years.
4. It is further stated that the petitioner filed W.P.(MD)No.7003 of
2011 before this Court seeking for the issue of a Writ of Mandamus, directing
the first respondent therein to issue transport permits without fixing any time
limit to the petitioner for transporting 216 blocks of granite quarried during
the subsistence of lease period i.e., prior to 21.11.2009 measuring 1,778.948
cpm from the above mentioned quarry site. But the Writ Petition was dismissed
as withdrawn on 18.10.2011.
5. It is further contended that the averments contained in paragraph
No.2 of the affidavit are denied as incorrect. In paragraph No.7 of the counter-
affidavit, it is stated that as per Rule 36(5)(f) of the Rules, no person is
entitled to remove any mineral from any land after expiry of the period of
quarrying permit or quarrying lease granted. Therefore, in accordance with this
Rule, the Writ Petitioner is not entitled to transport the mineral quarried,
after the expiry of the lease period. Hence, the request of the petitioner made
in her petition dated 04.04.2011 was rejected. The orders of this Court in
individual cases, taking into account the special circumstances, cannot be taken
as general rule. It is further submitted that the petitioner ought to have
transported the stocks within the currency of lease which ended on 21.11.2009
and she is not entitled for the same after lapse of three years from the date of
volunteer closure on 18.11.2006. On the aforesaid contentions, the respondent
has sought for dismissal of the above Writ Petition.
6. Heard the learned counsel appearing for the petitioner and the
learned Special Government Pleader appearing for the respondent.
7. Mr.K.Ramakrishna Reddy, learned counsel for the petitioner
submitted that there is no dispute that on the date of expiry of the lease as
per the stock register of the petitioner, there was a stock of total quantity of
1,778.948 cbm of marketable granite lying at the quarry site. There is also no
dispute that the said stock has been verified and counter-signed by the
Assistant Director of Geology and Mining, Thoothukudi. The stock register, which
is counter-signed by the Assistant Director of Geology and Mining, Thoothukudi,
is enclosed in the typed-set of papers at page Nos.22 to 32. The learned
counsel, placing reliance on the orders dated 12.08.2003 made in W.P.No.22575 of
2003, order dated 20.02.2008 made in W.A.No.3092 of 2003 and the order dated
23.11.2009 made in W.P.(MD)No.11935 of 2009, submitted that the learned Single
Judges and a Division Bench of this Court have held that Rule 36 never prohibits
for issuance of transport permit in respect of the mineral quarried during the
currency of the earlier lease period. The learned counsel further submitted that
in W.P.(MD)No.11935 of 2009, Mr.K.Mahendran, the present Special Government
Pleader was the counsel for the petitioner and in that Writ Petition also, a
similar prayer that has been sought for by the petitioner therein has been
granted.
8. The learned counsel further submitted that in the counter-
affidavit filed on behalf of the respondent, the District Collector, it has not
been stated that the quantity mentioned in the stock register has either not
been counter-signed by the Assistant Director of Geology and Mining, Thoothukudi
or the quantity in respect of which the transport permit is now sought for by
the petitioner had already been removed. The learned counsel further submitted
that it is also not the case of the respondent that after the closure of the
quarry, the petitioner continued to quarry beyond the period of lease.
Therefore, according to the learned counsel, when admittedly, the quantity
mentioned in the stock register, which has been counter-signed by the Assistant
Director of Geology and Mining, had been quarried during the currency of the
lease period, the petitioner is entitled to get transport permit to transport
the minerals.
9. Countering the said submission, Mr.K.Mahendran, learned Special
Government Pleader made the following submissions:
When admittedly, the petitioner had informed by her petition dated
18.11.2006 that she had stopped quarrying operations for the last two months and
requested to treat the quarry as closed, she is not entitled to seek transport
permits by her petition dated 04.04.2011 to transport 1,778.948 cbm of
marketable granite. Contending that the said quantity had been quarried after
the stoppage of work in the quarry and Rule 36(5)(f) of the Rules does not
permit the removal of any mineral after the expiry of the period of quarrying
permit or quarrying lease granted, the impugned order was sought to be
sustained. The learned Special Government Pleader further submitted that the
petitioner already filed a Writ Petition in W.P.(MD)No.7003 of 2011, which was
dismissed on 18.10.2011 and hence, the present Writ Petition is not
maintainable. Except the aforesaid submissions, no other submissions have been
made.
10. I have considered the aforesaid submissions made on either side
and perused the materials available on record.
11. There is no dispute that by G.O.(3D) No.89, Industries (MMB2)
Department, dated 04.11.1999, the petitioner was granted a granite quarrying
lease in respect of the petitioner's lands measuring 2.29.5 hectares comprised
in Survey Nos.17/9A, 9B, 10A, 18/9, 10, 19/4, 6,7,8,12 (part) and 460/13 (part)
situated in Keelamangalam and Pasuvanthanai Villages, Ottapidaram Taluk,
Thoothukudi District and necessary lease agreement had also been executed on
22.11.1999 and it was duly registered on 20.12.1999. It is also admitted that
the lease was for a period of ten years from 22.11.1999 to 21.11.2009. It is
also admitted that during the currency of the lease, the petitioner was
quarrying and transporting the mineral quarried. It is also not in dispute that
the petitioner had submitted a letter dated 18.11.2006 informing the respondent
that she had stopped quarrying operations.
12. Now, the limited question that arises for consideration in the
above Writ Petition is as to whether the petitioner is entitled to get transport
permit to transport 1,778.948 cbm of marketable granite claimed to have been
quarried by her before the stoppage of mining activities in November, 2006.
13. According to the petitioner, the said quantity was quarried
before 18.11.2006 that is prior to the stoppage of quarrying operations. The
said quantity is mentioned in the stock register maintained by the petitioner
with respect to the quarry in question and the same has been counter-signed by
the Assistant Director of Geology and Mining, Thoothukudi on various dates and
the last of such counter signature has been affixed on 04.05.2011. On 13.10.2010
it is mentioned in the stock register as follows:
"As on 13.10.2010, 216 blocks having 1778.948 cbm are the expired lease
area granted in favour of K.Seetha, Chennai vide G.O.(3D) No.89, Industries
(MMB2) Department, dated 04.11.1999."
Therefore, the contention that the said quantity had been quarried only during
the currency of the lease and before stoppage of the mining operations has to be
accepted, for the reason that if the said quantity had been quarried either
after the stoppage of quarrying operations or after the expiry of the lease
period, the Assistant Director of Geology would not have counter-signed the
stock register. It is also pertinent to point out that it is not the case of the
respondent in the counter-affidavit filed on 07.03.2012 that the petitioner had
quarried the aforesaid stock after stoppage of mining or after the expiry of the
period of lease. Thus, there is no dispute that the stock in respect of which
now the transport permit is sought for had been quarried during the currency of
the lease period and before the stoppage of the quarrying operations in the
quarry.
14. The main contention of the Special Government Pleader is that
under Rule 36(5)(f) of the Rules, the petitioner is not entitled to remove any
mineral from any land after expiry of the period of quarrying permit or
quarrying lease granted. The said contention is stated to be rejected for the
reason that a Division Bench of this Court in the order dated 20.02.2008 had
considered a similar contention put forth on behalf of the Government and
rejected the same. In the said order, in paragraph No.4, it is stated as
follows:
"We are not able to countenance any of the grounds taken against the order
of the learned Single Judge. The existing rule 36 of Tamil Nadu Minor Mineral
Concession Rules, 1959, even as on today, never prohibits for issuance of the
transport permit in respect of the minerals quarried during the currency of the
earlier lease period."
The said order has been passed in W.A.No.3092 of 2003, which was filed against
the order of the learned Single Judge dated 12.08.2003 passed in W.P.No.22575 of
2003. By yet another order dated 23.11.2009 made in W.P.(MD)No.11935 of 2009, a
learned Single Judge of this Court, after hearing the submissions of
Mr.K.Mahendran, the present Special Government Pleader, who had appeared for the
petitioner in that Writ Petition, has considered the similar contentions and had
directed issue of transport permits.
15. In view of the aforesaid various orders passed by the learned
Single Judges of this Court as well as by a Division Bench of this Court and in
view of the facts stated above, I am of the considered view that Rule 36(5)(f)
of the Rules does not prohibit the issuance of transport permit in respect of
the minerals quarried during the currency of the earlier lease period.
Therefore, the contentions of Mr.K.Ramakrishna Reddy, learned counsel for the
petitioner are well founded and the same are accepted. The contentions put forth
by the learned Special Government Pleader are rejected.
16. For the reasons stated above, the impugned order of the
respondent bearing Na.Ka.G.M.1/277/2011, dated 01.07.2011 is hereby quashed and
the respondent is directed to issue transport permit on payment of necessary
seigniorage fee to transport the total quantity of 1,778.948 cbm of marketable
granite quarried during the currency of the lease and now lying at the said
quarry lands measuring 2.29.5 hectares, comprised in Survey Nos.17/9A, 9B, 10A,
18/9, 10,19/4,6,7,8,12 (part) and 460/13 (part) situated in Keelamangalam and
Pasuvanthanai Villages, Ottapidaram Taluk, Thoothukudi District. The respondent
is directed to issue the transport permits for the quantity, for which such
permits are sought for, on payment of necessary seigniorage fee, within a period
of four weeks from the date of receipt of a copy of this order.
17. Thus, the Writ Petition is allowed. Consequently, the connected
miscellaneous petition is closed. However, there is no order as to costs.
SML
To
The District Collector,
Thoothukudi District,
Thoothukudi.
