Annalakshmi vs The State of Tamil Nadu and Others

Swamidurai, J.—The civil revision petition is taken up for final disposal by consent of parties. The plaintiff in O.S. No. 109 of 1993 on the

file of the learned Subordinate Judge, Tiruvallur is the petitioner in the civil revision petition. He has filed I.A. No. 432 of 1993 in the lower court

for an interim injunction restraining the respondents from interfering with her rights of quarrying land in S. No. 72 in Arakampattu village and in S.

No. 284 in Guruvoyal village till the disposal of the suit. The suit is for a declaration that the respondents/defendants are not entitled to enforce the

alleged order of the 1st respondent in Rc.416(A)87/C5, dated 15.11.1988 as it is void and ultra vires, illegal and unenforceable and also for a

permanent injunction restraining the defendants from in any way interferring with S. No. 284 of Guruvoyal and S. No. 72 of Arukampattu village

with the right of the plaintiff to quarry for a further period of three years and thereafter until evicted by due process of law in any manner

whatsoever. The plaintiff states that she is a Ceylon Repatriate having settled in India in or about the year 1976 and that she is eking out her

livelihood out of casual labour. Under the Tamil Nadu Minor Minerals Concession Rules, Rule 10 gives preferential treatment to Ceylon Repatriate

in giving lease of quarry belonging to the State. The petitioner submits that under Rule 10 of the said rules, the petitioner is having a right to apply

for the quarry lease and the State of Tamil Nadu by its Rule has made it clear for such repatriates as the petitioner the Rules 8 and 9 will not apply

except the lease amount to be fixed as an amount of equal to the average of lease amount for the proceeding 10 years or the average proceeding

10 years which ever is higher in addition to the ordinary amount. The petitioner applied for lease of the land quarry in the suit property and the first

respondent has sanctioned the lease and executed the lease deed and confirmed the same in its Order Ma.416(A) 870 dated 16.6.1987 for a

period of three years. The plaintiff quarried the same from 19.6.1987 to 2.7.1987 as per the order of the first respondent and as per the order of

stay granted in the Writ Petition No. 8176 of 1987. W.P. No. 8176 of 1987 could not reach from 3.7.1987 to 21.7.1987 and the plaintiff could

not quarry and this Court made the stay absolute on 21.1.1987 and from 22.7.1987 onwards, the plaintiff began quarrying the sand. The first

respondent with a view to prevent the petitioner from quarrying the sand has seized 58 lorries between 22.7.1987 and 26.7.1987 with the aid of

police force and the same were released subsequently as no case was made out. Then the first respondent issued a show cause notice dated

4.8.1987 which was served on 10.8.1987 stating that the petitioner had quarried sand in a place other than the lease land and on the basis of the

said notice dated 4.8.1987, the first respondent stopped quarrying the sand. The petitioner gave an explanation on 17.8.1987 and the petitioner

could not quarry the sand from 4.8.1987 due to the interference of the first respondent. The present Collector of the District has set up one Mr.

Loganathan to cancel the order of grant of lease. The order of District Collector was passed on 25.5.1987 and any appeal against that order ought

to have been preferred within 30 days i.e. before 23.6.1987. But after a long lapse of three months, an appeal was filed before the Director of

Industries and Commerce who ought to have dismissed the appeal on the simple ground that the appeal has become time barred and could be

entertained. But the Director of Industries and Commerce without giving any opportunity and without following the principles of natural justice has

cancelled the order granting lease by the Collector. The lease deed was a registered one. The petitioner filed an appeal before the Government

which was also dismissed. Then the petitioner filed W.P. No. 5389 of 1988 against the orders of the Director of Industries and Commerce and the

Government and obtained interim stay on 13.6.1988. According to the petitioner, there is no violation of the lease terms and the order of the

government dated 15.11.1988 has not been served on the petitioner. The petitioner came to know of the order of the Government only on the

previous day prior to filing of the plaint when a typed copy of the order was produced by the Tahsildar. The order of the Government was not

served upon the petitioner. The petitioner has to enjoy the full terms of three years of lease. But she was allowed to quarry sand only for 87 days.

The petitioner has not been evicted by due process of law and she is a statutory tenant. The petitioner is entitled to be put in possession of the sand

quarrying till the period of three years is over and till the petitioner is evicted by due process of law.

The third respondent has filed a counter contending that it is true that the petitioner has applied for grant of lease for quarryings and in S. No.

284 at Guruvoyal Village and in S. No. 72 at Arakkambattu village over an extent of 139.34 acres of Government land for a period of three years.

The first respondent granted a lease for quarrying and transporting sand in S. No. 284 of Guruvoyal Village over an extent of 15 acres and in S.

No. 72 of Arakkampattu Village for an extent of 25 acres totalling 40 acres for a period of three years. The lease was granted subject to certain

conditions. The petitioner was directed to remit the lease amount of Rs. 1,05,000 i.e. Rs. 35,000 per year and other charges amount to Rs.

4,31,795 and to execute a lease agreement by way of confirmation of the lease. The petitioner remitted only Rs. 4,057.50 on 20.5.1987 which

include the lease amount of Rs. 35,000 Rs. 720 towards land revenue, L.C. and L.C.S. Rs. 1,837.50 towards sales tax and Rs. 3,500 being 10%

security deposit for one year. The petitioner without complying other either conditions has rushed up to this Court by filing W.P. No. 5677 of 1987

and filed W.M.P. No. 8176 of 1987 seeking for stay of collections of the balance amount from the petitioner and obtained an interim stay on

2.7.1987. The petitioner produced security furnished by one V.R. Pandian for a sum of Rs. 3,00,000 and the grant of lease was confirmed on

16.6.1987.

Aggrieved by the confirmation of lease in favour of the petitioner R. Loganathan, residing at Guruvoyal village filed an appeal on 17.8.1987 to

the Director of Industries and Commerce challenging the lease granted in favour of the petitioner and the Director of Industries and Commerce by

order dated 3.2.1988, has cancelled the lease granted by the first respondent to the petitioner observing that the lease in favour of the petitioner is

violative of Rule 8(i)(a) of Tamil Nadu Minor Mineral Concessions Rules of 1959 and directed the first respondent to calculate the amount due for

the period actually quarried by the petitioner and refund the balance. Accordingly, a notice was issued of the petitioner to produce the accounts for

verification. But he has not complied with the notice, but instead, the petitioner has filed an appeal to the Government and the same was rejected

by the Government in G.O.Rt. No. 301, Industries (K. 1) Department, dated 11.4.1988.

It is stated that the petitioner was doing sand quarry indiscriminately even in areas outside the lease hold area. Again a notice was given to the

petitioner and after giving due opportunity the first respondent by order dated 15.11.1988 cancelled the lease in favour of the petitioner. The

petitioner filed W.P. No. 5389 of 1988 and obtained an order of stay in W.M.P. No. 7908 of 1988 against the order of the Commissioner and

Director of Industries and Commerce. The petitioner filed a suit O.S. No. 297 of 1988 in the court of the District Munsif, Tiruvallur and in I.A.

No. 538 of 1988 sought for Interim injunction restraining the first respondent and Director of Industries and Commerce, Madras from interfering

with the right to quarry sand. The petitioner herein failed in these proceedings, the petitioner has again filed O.S. No. 371 of 1990 before the Sub

Court, Kancheepuram and obtained an ex parte order of interim injunction in I.A. No. 1654 of 1990. Later the ex parte order of interim has been

vacated and the petitioner has filed an appeal in C.M.A. No. 69 of 1991 in the District Court at Chengalpattu. There also, the petitioner filed I.A.

No. 1348 of 1991 for interim injunction. The District Court dismissed the appeal and the petitioner has filed C.R.P. No. 1326 of 1992 in this

Court and this Court also disposed of the same on 16.7.1992 observing that it is open to the petitioner to take up the trial itself for disposal and a

direction to that effect has been given to the trial court. The petitioner, without proceeding with the suit O.S. No. 371 of 1990 has vexatiously filed

the present suit.

It is not true that the petitioner could not quarry sand from 3.7.1987 to 27.7.1987 since the Writ Petition No. 8176 of 1987 has not reached.

The proceedings are with reference to collection of the balance amount and there was no impediment for the petitioner for quarrying sand during

that period. In fact, the petitioner had been continuously operating quarry during that period also. The third respondent denies that the first

respondent has seized 38 lorries with the aid of the police force. It is not true that Loganathan has been set up the first respondent with a view to

prevent the petitioner from quarrying the sand. The respondents deny the allegations that the lease in favour of the petitioner had been cancelled

without giving proper opportunity and the order dated 15.11.1988 has not been served upon her. In fact the order dated 15.11.1988 cancelling

the lease has been sent to the petitioner by registered post acknowledgement due on 18.11.1988 and the third respondent is in possession of

necessary evidence for the same. The balance of convenience is in favour of the respondents.

The petitioner has marked Exs. A-1 to A-3 and the respondents have marked Exs. B-1 to B-7. There was no oral evidence on either side.

Learned Subordinate Judge dismissed the application I.A. No. 432 of 1993 on 21.9.1993. As against that order, the present civil revision petition

is filed.

Mr. N.R. Chandran learned Senior Counsel for the petitioner submitted at the outset that an appeal lies as against the order made in I.A. No.

432 of 1993 before the learned District Judge and that the civil revision petition has been filed on a bona fide mistaken legal advise. He further

submits that the civil Revision Petition now filed u/s 115, C.P.C. could be convered as one filed under Article 227 of the Constitution of India.

Learned Additional Government Pleader (Civil Side) submitted that the value of the suit is Rs. 15,100 and so that an appeal against the order

made under Order 39 Rule 1, C.P.C. would lie only before the District Court, Chengalpattu. According to him, the civil revision petition is not

maintainable and that the civil revision petition might be returned for presentation before proper court. At this juncture, Mr. N.R. Chandran,

learned senior counsel relied upon the judgment Seethalakshmi Ammal Vs. The State of Tamil Nadu and another, , Md. Isha Haque Vs. Md.

Azadur Rahman Hazarika and Others, and A. Ali Akbar Vs. The District Munsiff, Pattukottai and others, , for the proposition that when an appeal

lies to the appellate court that an appeal has not been filed but a civil revision petition is filed u/s 115, C.P.C. the civil revision petition could be

converted as one under Article 227 of the Constitution of India and disposed of according to lawon merits. In view of the above decisions, I am

permitting the petitioner to treat the civil revision as one filed under Article 227 of the Constitution of India subject to payment of deficit court-fee.

Accordingly, the civil revision petition is in order.

The next question that arises is whether the impugned order dated 15.11.1988 has been passed after giving an opportunity to the petitioner and

whether the said order is against the principles of natural justice and is therefore, null and void and unenforceable in law. The impugned order dated

15.11.1988 is found at page 15 of the typed set filed along with the civil revision petition. That order was passed by the Collector of Chengalpattu

at Kancheepuram, the first respondent herein. A portion of the impugned order is extracted as below:

During the surprise raid conducted on 28.7.1987, it was discovered that there were no quarrying by the lease in the land allotted to Tmt.

Annalakshmi in Guruvoyal and Arkkampattu Village. Instead of that, the quarying was carried in S. No. 404 of Thirukkandalam village of

Uthukottai Taluk. The lorries were seized and later released, as the lessee has allowed to quarry there. A show cause notice was issued in this

office Rc.416(a)/87-05, dated 4.8.1987. A reply dated 14.8.1987 was received from Thiru Jeevarathinam. Advocate to the lessee.

The following charges were framed against the lessee is as detained below:

(i) That the lessee has committed an offence aginst the Section 4(1) of Mines and Minerals (Regulation and Development) Act by quarying in S.

No. 404 of Thirukandalam Village, where no authorised permit or lessee was granted under T.N.M.C. Rules, 1959.

(ii) That the lessee has violated the conditions of the lease as she had not quarried in the land which was granted to her as per the lease agreement

executed by her.

(iii) That she had allowed indiscriminate quarrying outside the area leased out to her. The explanation given by the lessee''s advocate was

considered carefully. The explanation given by the advocate is not true and the charges are proved as detained below

At the end, the first respondent found that the lessee has violated the conditions of grant and so the lease granted for quarrying sand by the

Collector''s proceedings dated 16.6.1987 had been cancelled. Then at the end of that order, it is stated as follows:

It is clearly proved that the lessee has violated the conditions of grant under various sections of T.N.M.M.C. Rules, 1959 also. In the above

circumstances stated the lease granted for the quarrying right of sand in Guruvoyal and Arkkampattu village in Kusathalai river sanction in

Collector''s proceedings dated 16.6.1987 is hereby cancelled with immediate effect. This order is issued without prejudice to the order of Director

of Industries and Commerce, Madras, in his proceedings and Government Order in G.O.Ms.Rt. 301, F-1, dated 11.4.1988. The Tahsildar,

Tiruvallur is directed to take possession of the quarry immediately besides serving the notice under Rule 9(a) of T.N.M.M.C. Rules, 1959. If it has

not been done already. The Revenue Divisional Officer, Tiruvallur, is requested to watch the implementation of the orders immediately.

The lessee is directed to produce the accounts and the used despatch slips for verification of his accounts for refunding the lease amount, if any.

The Government reserves the right to recover the cost of damages, if any, and cost of refilling charges due to violation of conditions. The Executive

Engineer, P.W.D. Saidapet Division is requested to assess the damage and report the cost to be recovered.

This order does not prohibit the Collector to take action for any other offence committed in the process as per Rule 36 of T.N.M.M.C. Rules,

1959.

On a perusal of this order, I do not find that the first respondent has given any opportunity to the petitioner to lei in any oral or documentary

evidence after reply dated 14.8.1987 of the petitioner was received from her advocate Mr. Jeevarathinam. Three charges were framed by the first

respondent found that the explanation of the petitioner is not true and that the charges were proved. This order, on the face of it is against the

principles of natural justice and the petitioner was not at all given any opportunity after charges were framed to put forth his defence either

personally and also by letting in evidence oral and documentary. Therefore, on the face of the impugned order, the said order is illegal and it cannot

be justified in a court of law. Learned Subordinate Judge on a consideration of other technical grounds dismissed the application without

considering the fact that the order was passed by the first respondent cancelling the lease which s quasi judicial in nature.

Learned Additional Government Pleader (Civil side) brought to my notice a decision reportd in Satyanarayan Laxminarayan Hegde and Others

Vs. Millikarjun Bhavanappa Tirumale, , for the proposition that this Court will not exercise its jurisdiction under Article 227 of the Constitution of

India to the facts and circumstances of this case. According to him, there is no error in the order of the lower court which is apparent on the face of

the records so as capable of being corrected by writ of certiorari under Article 227 of the Constitution of India. The facts of that case are that the

respondent made an application to the Revenue Court for delivery of possession from his tenant, the appellant on the footing that the latter failed to

pay the rent for three consecutive years and so was entitled to get possession from him as per the terms of the lease. The appellant pleaded inter

alia that the respondent was not entitled to an order for possession as he had not given notice that he was entitled to obtain possession of the same

under rent agreement and that he had terminated the tenancy. The Revenue Court made an order in favour of the respondent, but on appeal, the

Collector set aside the order. The Collector''s order was confirmed by the Bombay Revenue Tribunal which took the view that the Bombay

Tenancy and Agricultural Lands Act, 1948, was applicable to the lands in question but that the respondent must fail because he had failed to

terminate the tenancy by notice before taking proceedings for ejectment. The respondent then applied to the High Court of Bombay under Article

227 of the Constitution of India, praying that it might exercie its power of superintendence over the Bombay Revenue Tribunal and set aside its

order. The High Court was of the opinion that the Tribunal had committed an error which was apparent on the face of the record in holding that an

order of possession could not be made unless a notice terminating the tenancy has been given before the institution of proceedings and,

accordingly, it quashed the order of the Tribunal and restored that of the Revenue Court. In order to decide whether it was necessary for the

landlord to give notice to the lessee of his intention to determine the lease the relevant provisions of the Bombay Tenancy and Agricultural Act,

1948 and the Transfer of Property Act 1882, had to be considered and the rival contentions of the parties showed that the point was far from

being self evident and could be established only by lengthy and complicated arguments. The Supreme Court held that the High Court was wrong in

thinking that the alleged error in the judgment of the Bombay Revenue Tribunal was one apparent on the face of the record so as to be capable of

being corrected by a writ of certiorari. The Supreme Court observed that an error which has to be established by a long drawn process of

reasoning on points where there may conceivably be two opinions cannot be said to be a error apparent on the face of the record.

In the judgment in AIR 1975 1297 (SC) , the Supreme Court held that the power of superintendence of High Court under Article 227 being

extraordinary is to be exercised most sparingly and only in appropriate cases. This power, as in the case of certiorari jurisdiction, cannot be

invoked to correct as error of fact which only a superior court can be in exercise of its statutory power as a court of appeal. The High Court

cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of Appeal when the legislature has not conferred a right of

appeal and made the decision of the subordinate court or tribunal final on facts. The High Court cannot, while exercising jurisdiction under Article

227 interfere with findings of fact recorded by the Subordinate Court or tribunal. Its function is limited to seeing that the Subordinate Court or

tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and reappreciating it. The same

principle is reiterated in the decision in Chandrasarkar Sita Rama Rao v. Ashalta N. Suram, 1987 R.C.J. 321, where the Supreme Court held that

it is well-settled that the High Court can set aside or ignore the findings of fact of an appropriate court if there was no evidence to justify such a

conclusion and if no reasonable person could possibly have come to the conclusion which the courts below have come or in other words finding

which was perverse in law.

Mr. N.R. Chandran, learned senior counsel appearing for the petitioner referred to the judgment A. Ali Akbar Vs. The District Munsiff,

Pattukottai and others, , AR. Lakshmanan, J. In that case is a suit filed by the plaintiff for injunction restricting the performance of religious rights at

a particular place, there was an ex pane decree. The defendant had not filed an appeal. The third party who is aggrieved with the ex pane decree

passed by the trial court filed C.R.P. No. 2230 of 1992 in this Court for issue of a certiorari for quashing the order under Article 227 of the

Constitution of India. In the facts and circumstances, this Court held that a third party, a member of the community aggrieved by such restriction

can file petition under Article 227 of the Constitution of India for correcting the illegality of the judgment of the trial court. Learned Counsel for the

petitioner also relied upon the judgment reported in Md. Isha Haque v. Md. Azadur Rahman Hazrika AIR 1993 Gait. 72 , for the proposition that

a decree granted without discussion existence of the grounds for eviction mentioned under the provisions of the Act can be set aside under Article

227 of the Constitution of India. In that decision, the learned single judge of Gauhati High Court followed the judgment reported in Sushil Kumar

Mehta Vs. Gobind Ram Bohra (Dead) through his Lrs., .

In view of the above discussion, I am of the opinion as stated above that the lower court has committed illegality by refusing to grant interim

injunction when it has got jurisdiction to do so. In the facts and circumstances of this case and in view of the above decisions. I am of the opinion

that this Court can interfere under Article 227 of the Constitution of India. Accordingly, the order of the lower court is set aside and there will be

an order of interim injunction as prayed for till the disposal of the suit. The petitioner has paid only Rs. 100 towards court fee since it was only filed

u/s 115, C.P.C. Since the petitioner is permitted to convert the civil revision petition to one under Article 227 of the Constitution of India, she is

directed to pay additional court-fee of Rs. 90 before she receives a copy of this order from this Court. The revision petition is allowed. However,

there is no order as to costs.