Allowed

The Senior Geologist v. Thankachan M.S

Kerala HC18 Nov 2020WA/1478/2020

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the writ appeal filed by the Senior Geologist to set aside a single judge's order directing the validation of an expired quarrying permit. The court held that without a specific statutory provision for extension, the appellant could not be compelled to grant one, despite prior court interdictions. The respondent is free to apply for a fresh lease.

What did the court decide?

Writ appeal allowed; impugned judgment setting aside; respondent directed to approach authorities for a fresh grant of lease.

The Senior Geologist Vs Thankachan M.S — Environment and Pollution | Kerala HC (2020)

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W.A.1478/2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942

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WA.No.1478 OF 2020

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AGAINST THE JUDGMENT IN WP(C) 18726/2020(M) OF HIGH COURT OF KERALA

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APPELLANT/S:

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THE SENIOR GEOLOGIST DEPARTMENT OF MINING AND GEOLOGY, KOZHIKODE-673 001.

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BY SRI. S. KANNAN, GOVERNMENT PLEADER

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RESPONDENT/S:

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THANKACHAN M.S

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S/O SEBASTIAN, MATHALIKUNNEL HOUSE, KOOMBARA BAZAR P.O.KOODARANHI, KOZHIKODE DISTRICT, PIN673 603.

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OTHER PRESENT:

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SMT. SMITHA BABU, FOR RESPONDENT

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.1478/2020

“C.R.”

J U D G M E N T

Dated this the 18^th day of November, 2020

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S. Manikumar, CJ

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Instant writ appeal is filed by the respondent in W.P.(C) No. 18726 of 2020 challenging the judgment dated 13.10.2020, by which, a learned Single Judge of this Court allowed the writ petition, directing the appellant – Senior Geologist, Kozhikode, to validate Exhibit-P1 permit dated 14.03.2018, for a term equal to the term during which, the petitioner could not operate quarrying, on the strength of the permit, without insisting any further payment. It was also ordered that this shall be done within a period of one month from the date of receipt of a copy of the judgment.

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Facts leading to the filing of this appeal are that 1^st respondent/ writ petitioner is the owner of a granite quarry, conducted in 4.6963 hectares of land owned by him, on the basis of Exhibit-P1 quarrying permit dated 14.03.2018, for extraction of granite building stones. At the time of issuance of Exhibit-P1, he was directed to pay an amount of Rs.3,51,120/- as royalty and an amount of Rs.35,112/- being quarry safety fund. Accordingly, the

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respondent paid Rs.3,51,296/- and Rs.35,112/-, as evident from Exhibits-P2 and P3 challan receipts. The quarrying permit was issued by the State Environment Impact Assessment Authority, on the basis of environmental clearance. Immediately after the issuance of Exhibit-P1 permit, Exhibit-P4 stop memo dated 16.03.2018 was issued to the respondent, pursuant to an order passed by this Court in W.P.(C) No.8644 of 2018, stating that the quarrying is against the provisions contained in the Environmental Clearance. Hence, he had to stop the quarrying activities.

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Finally, W.P.(C) No. 8644 of 2018 was disposed of by judgment dated 29.01.2019 (Exhibit-P5), directing the State Environment Impact Assessment Authority (SEIAA) to consider the objections raised and to take a final decision in the matter. After hearing, SEIAA found that the objections have no basis and the respondent was issued with Exhibit-P6 environmental clearance on 04.11.2019, which will expire on 04.12.2024. Pursuant to ExhibitP6, respondent submitted Exhibit-P7 request to the appellant for extension of the period of quarrying permit, during which, the stop memo was issued. Due to the interdiction in carrying out the business, by issuance of the stop memo, the respondent could not

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undertake quarrying operations, and therefore, he again approached this Court.

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This Court, by Exhibit-P8 judgment dated 09.12.2019, disposed of W.P.(C) No.33481/2019 directing the appellant to consider the request of the respondent, in the light of Exhibit-P5 judgment dated 29.01.2019 and Exhibit-P6 environmental clearance issued by SEIAA, after affording the respondent an opportunity of being heard, within a period of two months. Pursuant to Exhibit-P8, Exhibit-P9 order dated 19.02.2020 was passed by the appellant stating that the request of the respondent for obtaining quarrying permit, on the basis of royalty already remitted, is rejected. It was also ordered that the respondent is permitted to apply for renewal and on submission of application, further action would be taken as per the Kerala Minor Mineral Concession Rules, 2015.

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Being aggrieved, W.P.(C) No.18726 of 2020 was filed for the following reliefs:-

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i) Call for the entire records leading up to Exhibit-P9 order passed by the Senior Geologist, the respondent, dated 19.02.2020, and quash the same by issuance of a writ of certiorari or any other appropriate writs, orders of directions;

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ii) Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the respondent to extend the period of Exhibit P1 quarrying permit dated 14.03.2018 for which period, the petitioner could not carry out the quarrying operations, even after paying the advance royalty and advance quarry safety fund and other charges;

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iii) Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the respondent to permit the petitioner to extract granite building stones for which the petitioner had already paid advance royalty and advance quarry safety funds and other charges.”

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Before the writ court, the grievance projected by the respondent/writ petitioner was that he could not carry out quarrying operations on the strength of Exhibit-P1 quarrying permit, which had already expired on 13.03.2019 and that, he wanted extension of the said permit. A counter affidavit has also been filed by the appellant, refuting the claim of the respondent.

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Adverting to the rival contentions, a learned Single Judge allowed the writ petition by ordering thus:

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“4. The fact that the petitioner has been issued Ext.P1 quarrying permit after collecting the requisite charges including the royalty, is not disputed. Similarly, the fact that the petitioner could not

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extract granite stones from the quarry on the strength of Ext.P1 quarrying permit in the light of the interim order passed by this Court in W.P.(C). No.8644 of 2018 is also not in dispute. As noted, the SEIAA did not interfere with the environmental clearance challenged in W.P.(C) No.8644 of 2018 pursuant to the judgment in the said case, as per Ext.P6 order. In other words, the interim order in W.P.(C) No.8644 of 2018, on the basis of which the petitioner was interdicted from conducting quarrying operations on the strength of Ext.P1 quarrying permit was unjustified. In the said circumstances, according to me, the maxim ' actus curiae neminem gravabit' meaning an act of court shall prejudice no man applies squarely to the facts of this case. Needless to say that the petitioner has to be compensated. In Velu V.K. and Others v. Anil Kumar and Others , 2017 (2) KHC 911, on similar facts, this court directed validation of the quarrying permit of the persons involved in the said case for a term equal to the term during which they had to stop their activities pursuant to the stop memos issued to them.

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True, Rule 10 of the Rules dealing with conditions subject to which quarrying permits are to be issued under the Rules, provides that a permit holder shall not be eligible for refund of any amount paid by way of application fee, rent, royalty or tax, as the case may be. The said Rule may not have any application to the facts of the present case as the petitioner is

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not claiming refund of any amounts paid for obtaining Ext.P1 permit. Instead, he is only seeking revalidation of the term of the permit. Similarly, in a case of this nature, I do not think that the petitioner would get any relief in an appeal under Rule 98 of the Rules.

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In the said view of the matter, the writ petition is allowed and the respondent is directed to validate Ext.P1 permit for a term equal to the term during which the petitioner could not operate the quarry on the strength of the said permit without insisting any further payment. This shall be done within one month from the date of receipt of a copy of this judgment.”

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Aggrieved by the said judgment, the Senior Geologist, Kozhikode, appellant, has filed this appeal on the following grounds:-

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“(a) Impugned judgment is passed without understanding the impact and statutory prohibitions enshrined in the KMMC Rules, 2015 and thereby is only to be set aside as the same is illegal, unjust and contrary to the applicable laws.

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(b) Writ court ought to have taken note of the fact that by virtue of Exhibit-P1 quarrying permit, respondent was permitted to extract granite building stones from the extent of land specified therein and for the quantity and time limit, as specified therein. Writ court should have noted the crucial aspect that the permit becomes

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invalid whenever the quantity permitted is exhausted or the validity period expires, whichever is earlier. Hence, the writ court should not have ventured to direct the appellant to extend an expired and invalid permit. The quarrying permit being an instrument granted after due verification, scrutiny, procedures and payments, cannot be extended any further after the expiry of the permit, without following the due process of law and complying with all due statutory procedures. Direction to the contrary contained in the impugned judgment is thus liable to be set aside.

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(c) Writ court ought to have considered that as per the Kerala Minor Mineral Concession Rules, 2015 (hereinafter referred to as KMMC Rules, 2015) quarrying permit is issued under Rule 9 and as per Rule 10(b), the maximum period for a quarrying permit is one year from the date of grant, which was from 14-3-2018 to 13-3-2019, and that the permit had already expired.

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(d) Writ court also omitted to note that once the period of the permit is over, it cannot be acted upon by the respondent. The respondent has no legal right to seek for an extension of an expired permit and by the impugned judgment, what has been done is to restore an invalid permit, which is not permissible in law. The respondent can only seek for renewal of the permit, as per Rule 12 of the KMMC Rules, 2015, strictly adhering to the stipulations contained in OA No.304/2019 of the National Green Tribunal and the interim directions of this Court contained in W.P.(C). Nos.15305, 15309,

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16367 of 2020 and connected cases. Renewal of quarrying permit de hors the above, would be contrary to law and the above legal position.

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(e) Moreover, in this context, it is also to be noted that as per Rule 10(o) of the KMMC Rules, 2015, every concessionaire is subject to all the rules and regulations, which may from time to time be issued by the State Government, regulating the working of quarries and other matters affecting the safety, health and convenience of the lessee's employees or of the public, whether under the Indian Mines Act or otherwise. Further, by virtue of Section 4 of the Mines and Minerals (Development & Regulation) Act, 1957 (hereinafter referred to as MMDR Act, 1957), no person shall undertake mining operations in any area except under and in accordance with the terms and conditions of a mining lease, reconnaissance permit etc, granted under the said Act and rules thereunder. Therefore, in the absence of a valid permit, respondent cannot indulge in mining activities in the said areas. For the purpose of extension, essentially a fresh permit has to be procured, as the terms of the original permit has already expired. Then also, all formalities for a fresh permit has to be complied with by the respondent, as contemplated under the KMMC Rules, 2015. Giving a casual go-by to these provisions are not contemplated under the above Act and Rules thereunder.

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(f) Writ court has also omitted to note that it has been categorically held by the Hon'ble Supreme Court in

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State of Tamil Nadu v. M/s Hind Stone and Others [(1981) 2 SCC 205] (paragraph 12) and in Geomin Minerals and marketing Pvt. Ltd. v. State of Orissa [(2013) 7 SCC 571] (paragraph 37), that an application of renewal of quarrying lease is in essence, an application for the grant of a lease, for a fresh period. Applying the legal dictum above, writ court should have unhesitatingly held that the application submitted by the respondent could only be treated as an application for a fresh permit and that the respondent had to comply with all required formalities and procedures contemplated under the MMDR Act and KMMC Rules.

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(g) That apart, relying on the decision in Dharmendra Kumar Singh v. State of Uttar Pradesh [2020 (5) KLT Online 1118 (SC)] (paragraph 36), appellant had contended that if there has been an obstructed period by reason of a judicial interdict, that itself will not give window to extend the lease by not following the statutory provisions, especially when, the terms of the lease do not provide for any consequences thereof. Applying this proposition, the methodology, discussion adopted, and the conclusion arrived at by the learned Single Judge in the impugned judgment were not correct and, as stated above, the learned single Judge ought to have unhesitatingly held that the application submitted by the petitioner could only be treated as an application for a fresh permit and that the petitioner has

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to comply with all required formalities and procedures as contemplated under the MMDR Act and KMMC Rules.

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(h) Appellant has also contended that the application of the maxim " actus curiae neminem gravabit " by the learned single Judge to the issue, noting that the respondent was interdicted conducting quarrying operations, on the strength of an interim order by this Court, cannot be justified. This legal maxim that has been taken recourse to cannot operate in a vacuum. It has to get the sustenance from the facts.

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(i) In this case, learned single Judge omitted to note that the quarrying permit had already expired and so much so, an authority conferred with powers under the statute cannot be compelled to perform something, he cannot possibly perform.

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(j) The maxim " lex non cogit ad impossibilia " viz: the law does not compel a man to do what he cannot possibly perform will apply to the facts at hand. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. Moreover, it is also to be seen that even in the case of a mere erroneous judgment of a Court, the principle of actus curiae cannot be invoked. So much so, the impugned judgment based on the maxim " actus curiae neminem gravabit " is misapplied

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and the consequential direction contained therein cannot be sustained.

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(k) Learned single Judge has specifically found that Rule 10(n) of the KMMC Rules, 2015 does not apply to the case on hand, for the fact that the respondent is not claiming any refund of the amounts already paid, but the writ court goes on to reach a conclusion that the respondent has to be duly compensated.

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(l) It is not understandable or discernible as to how such a conclusion is arrived at. The question of an erroneous judgment or order does not arise in this case. So, there was nothing to show that the respondent deserved any compensation. Moreover, Rule 10(n) is worded, in a deliberate and restrictive manner and this legislative intent ought not to be defeated, by diluting it or supplanting it with any other interpretation based on misapplied maxim.

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(m) So much so, the direction given by misplaced application of the maxim " actus curiae neminem gravabit " is to be set aside, as otherwise, it would lead to confusion and chaos, while implementing the said provision.

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(n) Moreover, in paragraph 4 of the impugned judgment, the learned Single Judge has referred to a decision reported in 2017 (2) KHC 911, which is seen to be a judgment in a batch of cases, to support the conclusions in the impugned judgment. In this context, the appellant has contended that the official

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respondents have challenged the judgment in WP(C). Nos. 610/2017; 12101/2012; 22237/2012; 12277/2012; 10238/2012: 613/2017: 644/2017, by filing W.A Nos. 1434 of 2017; 713, 480, 712, 714, 478 and 477 of 2018 respectively, and the same are pending consideration.”

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Inviting the attention to the grounds raised, Mr. Paul Abraham Vakkanal, learned Government Pleader for the appellant, contended that as per the judgment of the Hon'ble Supreme Court in Dharmendra Kumar Singh v. State of Uttar Pradesh [2020 (5) KLT Online 1118 (SC)] , there should be a provision in the statute or in the lease deed, for extension of the period for quarrying, in the event of any interdiction by a Court. He also submitted that in the absence of any such provision, in the statute or in the lease deed, direction issued by the writ court, granting extension of lease, requires to be interfered with.

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Per contra , though Smt. Smitha Babu, learned counsel for the respondent, vehemently argued that the decision in Dharmendra Kumar Singh 's case (cited supra) has been rendered with reference to the Minor Mineral Concession Rules, 1963 of the State of Uttar Pradesh and, therefore, it is not applicable to the facts of this case, we are not in agreement with the said contention, for the reason that in both the cases, there

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was an order, staying operation of quarrying lease, pending proceedings. In Dharmendra Kumar Singh 's case (cited supra) , it was an order passed by National Green Tribunal, whereas, in the case on hand, it is an interim order of this Court in W.P.(C) No.8644 of 2018. But, the only difference in both the cases is that Rule 40(h) of the Uttar Pradesh Minor Minerals (Concession) Rules, 1963 provides for the consequences of the disruption of mining operations in a lease area owing to any special circumstances and requires the DM, with the prior approval of the State Government, to adjust the amount equivalent to the installments payable during the disrupted period against forthcoming installments, whereas, as per Rule 10(n) of the KMMC Rules, 2015, there is no provision for refund of any amount paid the permit holder, by way of application fee, rent, royalty or tax, as the case may be.

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In both the cases, leaseholders have been interdicted from conducting quarrying operations, on the basis of environmental issues. Non refund of royalty or any amount towards quarry safety fund, for the period during which, leaseholder could not carry out quarrying operations, due to an order of Court or National Green Tribunal, as the case may be, is

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not relevant for deciding as to whether, there should be extension of quarrying lease or not. Issue that was considered in Dharmendra Kumar Singh 's case (cited supra) is whether, there was any provision in the rules or in the lease deed, enabling extension of lease, beyond the lease period, when there was an interdiction by a Court or NGT, as the case may be. After considering various decisions, the Hon'ble Apex Court in Dharmendra Kumar Singh 's case, held thus:-

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“Insofar as the question whether to adopt the course of extending the leases for the obstructed period or in some way compensating the Appellants for the same, is what was debated and we have already noted the rival contentions of the two parties. We have, at the inception, stated that we are conscious of the statutory provisions and, thus, would not like to infringe the same, apart from the fact that it may not be an appropriate course of action as it may open other floodgates as if these rounds are not enough!. The judicial opinions referred to by learned Counsel for the State of UP no doubt lead to a more or less consistent view that a mere filing of an application either for the grant of a lease or for the renewal of a lease does not confer a vested right for either grant or renewal of a lease (Sukhan Singh case). The statutory provision of Rule 68 of the Mining Rules, which has been strongly relied upon by learned Counsel for the Appellants, is in

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the nature of a relaxation Rule in special cases and has to be read with the Rules which provide the manner in which the exploitation of minerals should take place ( Mohammad Yunus Hasan v. State of U.P. and Ors. [2016 ( 5 ) ADJ 365]). Thus, the expression used is "in the interest of mineral development it is necessary so to do..." The idea, thus, is that the objective of exercising such power should be to aid the development of minerals and such judicial view is of significance as there was always a possibility of the misuse of such power, considering the history of mineral exploitation in our country. The statute was worded in a restrictive manner deliberately giving only a restricted window and this legislative intent ought not to be defeated by supplanting it with any other interpretation. It is a well settled principle of interpretation that when the words of a statute are clear and unambiguous, recourse to different principles of interpretation, other than the Rule of literal construction, cannot be resorted to. ( Delhi Transport Corporation v. Balwan Singh and Ors ., 2019 SCC Online SC 276). If a fresh grant or extension has to be made under the Mining Rules, it must be in accordance with Chapter II, and the provision for auction of leases in Chapter IV is in furtherance of a transparent procedure. We do find ourselves in agreement with the submission of the learned Counsel for the State that the right to extension of lease either flow from a statutory provision or from the terms of the lease between the concerned parties. If there has been an

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obstructed period by reason of a judicial interdict, that itself will not give a window to extend the lease by not following the statutory provisions, especially when the terms of the lease do not provide for any consequences thereof. We may notice that this view has been adopted by the Allahabad High Court in Vijay Kumar Dwivedi v. State of U.P. and Ors. 2016 (9) ADJ 61, where the same question was examined. The leaseholders were obstructed/restrained from carrying out the mining activity during the subsistence of their leases upon the orders of the High Court or of the competent authority. The High Court adopted the view that after the issuance of the G.O. dated 31.5.2012 this could not be done.”

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Ratio decidendi is clear that unless and until there is a provision in the rules or in the lease deed, enabling to extend the lease period, extension of lease cannot be granted. Thus, following the decision of the Hon'ble Apex Court in Dharmendra Kumar Singh 's case (cited supra), the direction of the learned single Judge in the impugned judgment that appellant shall validate Exhibit-P1 quarrying permit dated 14.03.2018 for a term equal to the term during which, the respondent/writ petitioner could not operate the quarry, on the strength of the said permit, without insisting for any further payment, requires interference.

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In the result, Writ appeal is allowed and the judgment of the learned single Judge in W.P.(C) No.18726 of 2020 dated 13.10.2020 is set aside. However, it is open to the respondent, to approach the appropriate authorities with a fresh application for grant of lease.

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Sd/-

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S. MANIKUMAR CHIEF JUSTICE

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Sd/SHAJI P. CHALY JUDGE

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///TRUE COPY///

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P. A. TO JUDGE