CW/189/1999 of NEMI CHAND Vs U O R on 9 February 1999

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH,JAIPUR

S.B.CIVIL WRIT PETITION NO.189/1998.Hari Singh Meena.VERSUSState of Rajasthan & Ors.

15.09.2006.

HON'BLE MR.JUSTICE DALIP SINGH

Mr.Vimal Choudhary, for the petitioner.Mr.B.K.Sharma, Deputy Government Advocate.

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In this writ petition, the petitioner has interalia prayedthat by an appropriate writ, order or direction the impugned orderdated 12.09.1995 dispatched on 13.11.1995 passed by the learnedDeputy Secretary to the Government be quashed and set aside to theextent of charging dead rent and payment of penalty for the periodthe petitioner did not remain in possession of the area under themining lease and to this extent the said order be modified andother order be maintained with a condition of payment of a penaltynot exceeding twice the amount of the dead rent from the petitioneras per Rule 18 of the Rajasthan Minor Mineral Concession Rules,1986.

The principal challenge of the petitioner is that thepetitioner cannot be charged with the liability for the dead rentfor the period the petitioner did not remain in the possession ofthe mining area. For the aforesaid contention, the petitioner hasrelied upon the judgments of this court in the case of Radha KishanSharma Vs. State of Rajasthan [S.B.Civil Writ PetitionNo.1108/2005] and Jai Singh Shekhawat Vs. State of Rajasthan &Others [S.B.Civil Writ Petition No.4647/1998]. It is submitted thataforesaid judgment of Jai Singh Shekhawat was challenged before theDivision Bench and the same was upheld by the Division Bench videjudgment dated 01.09.1999 and the S.L.P. filed against the aforesaid judgment was dismissed by the Hon'ble Supreme Court videorder dated 10.03.2000.

Thus, the principal point for determination is whether thepetitioner was in possession of the mining area under the leasegranted to the petitioner or was not in possession of the areaafter the order dated 08.01.1987. The petitioner in this regard asmade the averment in para 5 of the ground wherein it has beenstated that in the instant case neither the mineral nor the ore hasbeen excavated, removed or utilized w.e.f. 26.07.1987 till today.Therefore, it can neither be charged nor imposed.

When the matter came up before the court on 28.07.2006, thelearned counsel for the petitioner referred to the orders passed onthe application for temporary injunction filed in the suit, by thepetitioner and in the appeal which was filed against the order onthe application for grant of temporary injunction which order hasbeen filed as Annexure-2 to the writ petition.

Since this fact had come on the record that the petitioner hadin fact filed a suit for injunction against the respondents,learned counsel for the petitioner was asked to file the copy ofthe plaint and the copy of the application for temporary injunctionin order to see the averments made in the said plaint and theapplication for temporary injunction with regard to the factum ofthe possession over the area under the mining lease.

Learned counsel for the petitioner on 12.09.2006 filed thecopy of the plaint dated 24.11.1990 and had earlier filed the copyof the application for the grant of temporary injunction. As perthe averments made in the para 4 of the plaint filed before thiscourt on 12.09.2006, following averments have come to the notice.Para 4 of the plaint reads as under:- “(4) िसतमबर 1990यह िक वादी ने अपनी िःथित सुधारने पर इस वषर् से खनन कायर् आरम्भकरने हेतु 35 मजदर ूप थर क खदाई व खान खोदन क िलय लगा कर अपना काय आरमभ करिदयातथा प थर क “बब” हेतु खनन रव ना मूल देने तथा बकाया जमा कराने के िलये एक आवेदन11,545 “पयेूितवादी बमांक तीन के कायार्लय म” ूःतुत िकया तथा िनद शानुसार बकाया रािश 24.10.90 तथा 29.10.90 को जमा कराये िज हे ूितवादीगण ने ःवीकार करली ।"

In continuation of the above averments made in para 4 of theplaint, in para 7 of the plaint the petitioner has made thefollowing averments:-

“(7) 10.10.90 को एक िलिखत ूितवेदन उप शासनयह िक वादी ने इस सम्ब ध म िदनांक सिचव ारा खान एवं भू “व”ान “वभाग राजःथान रा”य जयपुर के सम ूःतुत िकया िजस परउ ह ने ूितवादी बमांक 2 व 3 से िट पणी मांगी िजसके स दभर् म ूितवादी बमांक तीन ने अपनीिट पणी पऽांक ख.प./करो/“र./अू/ख.प./नी-87/82/1302 िदनांक 8.11.90 कोिजसमे ूितवादी नं.3 ने वादी के ूितवेदन म” उि लिखत त य को स य पाया तथा नोिटस वादी कोूा नही होना पजशन वादी स नही लन,उ खनन को खाली होने, 11345/- “पये बकाया"होना माने हए खनन प”टे को रेःटोर िकया जाना राजक य िहत म माना है ।

Based upon the above, in the plaint, the petitioner-plaintiffmade the following prayer :- “(ख)ूितवादीगण को ःथाई िनषधा ा स पाब ध िकया जाव िक व वादी क खनन ऽ “लाट न.28 माम लोठदा तहसील करौली म वादी क ःवत”ऽ उपयोग तथा खनन काय म िकसी भी ूकार क बाधा या अवरोध ू य एवम परो “प स उ”प न नही कर....”

The learned counsel for the petitioner with a view to explainthe aforesaid position then submitted that the appellate court videAnnexure-2 dismissed the appeal filed by the petitioner on theground that lease granted to the petitioner had come to an end asthe same has not been renewed after 10.03.1993 and, therefore, thelease having come to an end, no relief could be granted to thepetitioner. It has then been submitted that since the lease hadcome to an end the possession of the petitioner had already beentaken by the respondents and since the possession has been taken by the respondents, no liability for the dead rent could have beenfastened on the petitioner in the light of the judgments referredto above.

The averments made in the writ petition in para 4 are alsorelevant and it is necessary to extract the same regarding thestand of the petitioner before this court, so far as the possessionis concerned. The same reads as under:- “4. That thereafter the petitioner went in the office ofthe Mining Engineer for issue of Rawanas and depositedthe balance amount of Rs.11,565/- on 24.10.1990 and29.10.1990. In connection with his aforesaid applicationthe office of the Mining Engineer apprised vide letterNo.Kha-Aa-Karauli/Re-Apra/Khan/Hi-52/80/1205dated6.10.1990 that the petitioner's mining lease has alreadybeen revoked on 17.7.1987 for non-compliance of noticedated 8.1.1987 and the possession has also been taken on26.7.1987.”

In ground No.(ii) of the writ petition, it has been stated bythe petitioner as follows:- “(ii) ..... In the instant case the competent authorityhas determined the lease with forfeiture of security andtook possession on 26.7.1987 in place of imposition ofpenalty.”

From the above facts it is clear that so far as the presentwrit petition is concerned, the petitioner with a view to challengethe impugned order imposing liability for payment of dead rent isconcerned, has taken a stand that possession of the mining area wastaken from the petitioner on 26.07.1987 whereas in the suit whichwas for the injunction filed on 24.11.1990, the stand taken in thesuit was that the plaintiff was in possession of the mining area indispute and this is corroborated even from the report sent by theMining Engineer to the Deputy Secretary. Thus, when it came to the -:5:-

filing of the suit for injunction it was in the interest of thepetitioner to allege in the plaint dated 24.11.1990 that thepetitioner was in possession of the mining area and he has employedlabourers and extracted the mineral and should be issued rawannasas stated in para 4 and 7 of the plaint and in the prayer extractedabove. As in the absence of the petitioner-plaintiff being inpossession of the mining area the question of grant of temporaryinjunction would not have arisen. On the other hand, in the presentwrit petition the petitioner alleged that he, not being in thepossession of the mining area since 26.07.1987, the petitionercould not be saddled with the liability of the dead rent for theperiod in question as he was not in possession of the area. Thus,the petitioner had been taking contradictory stand as it suits thepetitioner in various proceedings. Thus, in the light of the abovefacts the judgments relied upon by the petitioner cannot be appliedwhen the liability has been determined accepting the position thatthe petitioner has remained in possession even after the orderdated 08.01.1987.

In view of the above, I am not inclined to interfere with theimpugned order passed by the learned Deputy Secretary. The writpetition in the light of the above, is consequently dismissed. Thestay application also stands dismissed.

(DALIP SINGH),J.

Solanki DS, Jr.P.A.