K.Raviraja Pandian - (1.) IN this appeal, the correctness of the order dated dated 5.2.2003 made in W.P.No.7467 of 2001 rejecting the appellant's request for issuance of a mandamus to direct the respondents to refund the amount deposited by the appellant towards lease amount, security deposit, area assessment, first year dead rent and stamp duty totalling a sum of RS.2,78,13,700/- for the grant of lease in G.O.3(D) NO.38 INdustries Department dated 20.4.1998 with interest at the rate of 24% per annum from the date of deposit till the date of settlement, has been questioned.
(2.) MRS.Nalini Chidambaram, learned Senior Counsel appearing for the appellant has assailed the order by contending that when a Division Bench of this Court, in a public interest litigation in W.P.No.16876 of 2000, has granted the very same relief and the correctness of the same is pending consideration before the Supreme Court by way of Civil Appeal at the instance of the respondents, on the principle of comity, the learned single Judge would have merely followed the same, leaving the State to take up the matter on further appeal to the Supreme Court to be disposed of along with the Civil Appeal. The judgment of the Division Bench of this Court dated 6.9.2001 being inter-parties, though not attained finality or operate as res judicata, on the principle of bar of re-litigation precluded the Court from making decision against the appellant. On merits, the learned Senior Counsel for the appellant has contended that the grant of mining lease is governed by the Tamil Nadu Minor Mineral Concession Rules. The procedure followed in this case is not in conformity thereof, particularly, Rule 8A(3)(b) and Rule 8A(8)(c) and Form VI-A, in the sense, that the area offered for lease has not been demarcated. The parties were not on consensus as to the area. No binding concluded agreement has come into force. Consequently, the appellant is entitled for refund of deposit. The entire correspondence shows the dispute as to the identity of the area has been in existence contemporaneously and not as an after thought. The learned single Judge has erred in relegating the appellant to common law remedy, as there is neither concluded contract nor disputed question of fact in existence or involved. When the notification itself required the intending bidders to ascertain the quarry and satisfy about the nature and availability of the minerals, the respondent cannot grant the land as per their whims and fancies. The writ petition is maintainable even for an action for recovery of money. Per contra, Mr.G.Masilamani, learned Advocate General appearing for the respondents has submitted that the public interest litigation now seized of by the Supreme Court does not deter this Court from deciding this issue independently and as a matter of fact, the writ petition was disposed of as per the direction of the apex Court by its order dated 18.1.2002. The area offered for lease has already been identified and demarcated by yellow colour wash. The Gazette notification requiring the indenting bidders to ascertain and satisfy themselves about the quality of the mineral available in it cannot be construed that the appellant is required to identify the area to be taken on lease. The procedure contemplated under Rule 8A has been followed. Having aware of the area, the appellant submitted his tender, obtained the lease and executed the lease deed on 7.10.1998. The area offered in lease has been clearly demarcated in Field Measurement Book and it was annexed along with the lease deed. The subsequent demarcation made by the Tahsildar in a different area by mistake cannot be taken advantage of by the appellant. The statutory rules as well as the lease deed entered into by the appellant specifically prohibits change over of the area and further prohibits the appellant from raising any dispute with regard to the survey number or demarcation of the area given in lease. If there was a real dispute or no consensus as to the identity of the area, the appellant ought to have protested the same before execution of the lease deed. Alternatively he contended that the dispute now raised by the appellant is a disputed question of fact and that cannot be adjudicated by means of averments contained in the affidavit and counter affidavit. It requires evidence in the form of oral and documentary. The order of the learned single Judge requires no interference.
(3.) WE heard the argument of the learned counsel on either side and perused the materials on record. The files relating to the case also are placed before us. The material facts, which are necessary to resolve the dispute, are as follows: The appellant, a pioneer in granite quarrying operation in India, pursuant to the notification issued in the District Gazette, Madurai offering as many as 15 different areas for grant of lease for quarrying colour granite, has submitted its tender in respect of an area over an extent of 4 hectares in S.No.80 (Part) at Idayapatti village, which is item No.14 in the Schedule to the Gazette notification. The respondent Government by its G.O.3(D) No.38 dated 20.4.1998 granted quarrying permission to the appellant for a sum of RS.2,51,00,000/-. The appellant paid the amount and thereafter requested the District Collector to have the area demarcated. As per the direction of the District Collector, the Tahsildar demarcated the land and submitted his report on 27.10.1998. Even prior to the receipt of the said report, the required lease deed was executed by the appellant on 7.10.1998 with the Collector and the same was sent to the Sub-Registrar for registration on 14.10.1998.;