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Judgment
M. Chockalingam, J.—A challenge is made to an order of the first respondent made in C. No. 12014(4)P/Tr/01/14947-50, dated
10.08.2005 by way of this writ petition seeking for the issue of a writ of certiorari.
The affidavit filed in support of the petition and also the counter affidavit filed by the respondents, denying the allegations found in the original
affidavit of the petitioner are perused. The court heard the learned Counsel on either side.
(4)The following facts would emerge as the facts admitted. The petitioner, who is in the business of manufacturing salt, entered into a lease
agreement with the first respondent on 13.6.2001 in respect of the land measuring 173.11 acres in the Covelong Salt Factory in the village of
Kelambakkam, Kancheepuram District on a consideration of a sum of Rs. 346.22 as the ground rent and a sum of Rs. 36400/- being the
assignment fee for one year, which was deposited as security. The lease was for a period of 20 years commencing from 7.5.2001. The total extent
of licensed area was 146.57 acres and incidental area was 26.54 acres and totally measuring about 173.11 acres. The license No. 9 contained the
survey numbers, boundaries and extent of the area with the plan. As per the agreement, the entire area was handed over to the petitioner for the
operation of his business. The factory officer, without conducting survey showed the approximate boundaries of the area, leased out the same to
the petitioner. In view of certain circumstances, namely unexpected flood and also he has to arrange for finance, he could not commence the
business in time and the delay had occasioned. The petitioner sent a letter on 24.3.2004, requesting the first respondent to survey the lease area
and fix his boundaries, since according to him, there were certain encroachments made in the leasehold land. In the meantime, the first respondent
called upon him to make payment of Rs. 97,160/- by letter dated 6.1.2004. The petitioner made payment of Rs. 82,548/- towards ground rent
and the assignment fee upto 2003. While the matter stood thus, there was default on the part of the petitioner in making the entire payment. Under
these circumstances, the lease was determined by the respondents and the entire possession was taken over. On payment of the entire amount, the
original order of determination of lease was cancelled and the petitioner resumed the entire possession of land. While the matter stood thus, a
communication was addressed to him that the land measuring 13.21 acres in S. No. 1B was utilised as approach road not only by the petitioner,
but also by the fourth respondent and it was inadvertently included in the original lease agreement and hence, in respect of the portion of 13.21
acres, the petitioner must surrender the same to the respondents. Immediately, the petitioner gave a reply, denying that it was not so and therefore,
it is a part and parcel of the lease deed and hence, it could not be done. While the matter stood thus, an order came to be passed on 10.08.2005
that an extent of 13.21 acres of land was to be resumed, which is the subject matter of challenge before this Court.
Advancing arguments on behalf of the petitioner, the learned Counsel would submit that in the instant case, he took 173.11 acres of land on
lease in the year 2001 and the entire area of the land was handed over to him. It is true, there was default in payment; that there was an occasion
when the entire lease was determined and subsequently, on payment, he resumed the entire land, including 13.21 acres of and, which is in question.
The fourth respondent has come into existence only in 2002. It is true, there was an approach road and it is actually situated within the land given
on lease to the petitioner. The fourth respondent has got separate approach road and in order to oblige the fourth respondent, the Department
comes forward to state that this 13.21 acres is the approach road to the entire field leased out to the petitioner and also to the fourth respondent
and it is commonly used and apart from that this 13.21 acres of land was inadvertently included in 173.11 acres. But, once it is a part and parcel of
the lease agreement, no question of resuming the land by the respondent would arise. It is true, on 10.08.2005, the impugned order has been
passed and according to the respondent, it was resumed on 11.8.2005. A perusal of the memorandum of resumption would clearly reveal that the
fourth respondent was the witness of the same. The total area including 13.21 acres is actually in possession of the petitioner continuously and
apart from that, there was an arbitration clause and originally, the matter was referred to the arbitrator. While the matter is pending arbitration, the
first respondent, who is the Deputy Salt Commissioner and who is also a party before the arbitrator, cannot pass any such order and under these
circumstances, the order has got to be quashed on that ground also and hence, the order has got to be quashed.
In reply, it is contended by the learned Counsel for the respondents/department that it is true, in the instant case, originally the lease was to an
extent of 173.11 acres. 13.21 acres in S. No. 1B was actually the road leading to the entire salt field, which is not only for the petitioner, but also
for the fourth respondent. The lease agreement was entered into between the fourth respondent and the department in the year 2002 and only at
that time, the mistake was found. Immediately, a notice was issued calling upon the petitioner to surrender his possession, but he has not done so
and under these circumstances, the order was passed and even after, he has not surrendered. 13.21 acres of land was resumed on 11.8.2005 and
thus, once that part of the land was actually resumed and it was in possession of the respondents/department, the petitioner must come forward for
recovery and even if at all, he has got any dispute over the same, there is an arbitration clause. The earlier arbitration, which was made by the
petitioner, has got no relevance at all for the reason that it was for determination of lease and subsequently, against the order dated 10.08.2005 in
respect of 13.21 acres of land, which is in question, no reference has been made to the arbitrator. In a given case like this, where there is specific
arbitration clause, the petitioner has to approach the arbitrator, who is actually the Salt Commissioner of if the court appoints any arbitrator, before
whom the matter could be referred to for resolving the dispute and hence, he cannot approach the court. The learned Counsel, relying on a
decision of the Supreme Court reported in Hindustan Petroleum Corpn. Ltd. Vs. Pinkcity Midway Petroleums, would submit that the writ petition
has got to be dismissed.
The court has paid its anxious consideration on the submissions made. It is not in controversy that there was lease agreement entered into
between the petitioner and the first respondent on 13.6.2001. It would be quite clear that the entire area covered under the lease agreement was
173.11 acres. It is pertinent to point out at the outset that before leasing out the particular area for the manufacturing of the salt, a duty was cast
upon the authority to make out survey and only on the basis of the report, they could enter into a lease agreement like this. The first contention of
the department that there was a mistake crept in in respect of 13.21 acres of land and it was only an approach road and it was inadvertently
included, cannot be countenanced. Apart from that, 173.11 acres of land, including 13.21 acres of land, were actually the subject matter of lease
between the parties. If to be so, the first respondent or any other authority in the department cannot make determination of only a part of the land
according to their desire. Further, in the instant case, the fourth respondent has entered into a lease agreement with the department only in 2002.
It is pertinent to point out that pursuant to the lease deed entered into between the petitioner and the first respondent on 13.6.2001, the
petitioner was put in possession of entire field of 173.11 acres, which is not in controversy. It is also true that subsequent to the default on the part
of the petitioner in making necessary payment, the entire lease came to be determined and thereafter, he has also made payments and it is also
admitted in the counter that the entire field, namely 173.11 acres was actually handed over to him and he resumed possession on 13.8.2004.
Subsequently, while admitting that the petitioner was in possession, an order came to be passed on 10.08.2005. A perusal of the order would
indicate that 13.21 acres of land was resumed. Originally, there was a letter addressed to the petitioner, stating that 13.21 acres of land in S. No.
1B was actually an approach road and it was inadvertently included and hence, it has got to be surrendered, but the petitioner was not willing for
the same. If to be so, the department cannot determine that part of the lease or take possession of the same unilaterally, because it was the subject
matter of the lease. It is not in controversy that the lease period during the relevant time was actually in force. It is not the pleasure of the first
respondent or the authority to take back the land, which is the subject matter of lease, without following the course of law.
Apart from that, in the instant case, what is noticed is that on 10.08.2005, the order of resumption has been passed. It is a matter of surprise to
note that on the very next day, on 11.08.2005, the land has been resumed and according to the petitioner, one of the witnesses is the fourth
respondent. According to the Department, the fourth respondent was also having right to pass through 13.21 acres of land as a common passage.
The order of resumption of land has not been properly done. Now, the petitioner comes forward to state that the entire field is continued to be in
his possession. The materials would indicate that originally, 173.11 acres of land was handed over to the petitioner, who continues to be in
possession of the same and it was taken back on determination of lease and he resumed the entire field and it continues to be in his possession. It is
true, originally, arbitration clause was invoked by the petitioner when there was determination of entire lease of 173.11 acres of land due to the non
payment. But, the invoking of arbitration clause has nothing to do with the present situation.
The rulings cited by the learned Counsel for the respondents/department cannot have any application to the present facts of the case for the
reason that in the instant case, it is specifically stated by the respondents 1 to 3 that the fourth respondent is having the right over the said land, as
the common passage. So far as the fourth respondent is concerned, the arbitration clause found in the agreement entered into between the
petitioner and the first respondent, would not be binding on the fourth respondent. So long as the fourth respondent is the party, the arbitration
clause cannot have any force at all and it cannot be applied to the present facts of the case. But, so far as the issues whether 13.21 acres of land is
the part and parcel of the lease deed, whether a mistake has crept in and whether there was an approach road are concerned, these could be
solved by the arbitrator only, who is appointed by the court.
So far as the order of resumption of land is concerned, the alleged resumption cannot have any sanction in law and hence, the impugned order
has got to be quashed. Accordingly, the impugned order is quashed. The dispute over the same could be resolved only before the Arbitrator. The
court is of the considered opinion that it is a fit case where arbitrator could be appointed by this Court, before whom the matter could be referred
to for the purpose of deciding the issues. Accordingly, Mr. Mohandass, District Judge (Retd.) is appointed as arbitrator. His remuneration is fixed
at Rs. 15000/- (Rupees fifteen thousand only) payable by the petitioner. The parties are directed to take up the matter before the said arbitrator
for settling the issues between them. Accordingly, this writ petition is disposed of. No costs. Consequently, the connected miscellaneous petitions
are closed.