Prem Kanwar vs State of Raj. and Others

Jaishree Thakur, J.

The present D.B. Civil Special Appeal filed under Rule 134 of the High Court Rules, 1952 has been preferred against the order dated 05.10.2012 passed by learned Single Bench in S.B. Civil Writ Petition No. 11999/2011.

The appellant-petitioner was issued and granted mining lease on 12.01.1984 for mining of minerals namely corundum, Mica, Asbestos and Quartz near village Jodhpur, Amer for a period of 20 years in an area measuring 900 hectares. Subsequently, by an agreement dated 08.10.1986, the petitioner was also allowed to mine other minerals namely calcite, feldspar and soapstone. The mining lease in favour of the petitioner was from 12.01.1984 to 11.01.2004.

On 19.12.1987, a notice was issued to the petitioner to deposit dead rent and interest amounting to Rs. 30,699.41 at revised rate. The petitioner deposited the dead rent on 14.12.1988 for a period from 12.07.1988 to 11.01.1989 but against the demand notice dated 19.12.1988 asking the petitioner to deposit the dead rent and interest amounting to Rs. 30,699.41 at revised rates, the appellant preferred a writ petition before this Court being S.B. Civil Writ Petition No. 2857/1989. In the said writ petition, no interim order was granted by the court. Since, the appellant did not deposit the demand raised, the mining lease of the petitioner was canceled vide order dated 12.04.1990. In pursuance of the order of cancellation, possession was taken from the appellant on 18.05.1990.

Against the order of cancellation dated 12.04.1990, the petitioner filed a revision petition before the competent authority. The revision petition was disposed of in view of the statement given by the counsel for the appellant that he would be ready and willing to deposit the amount of dead rent under protest and the lease to be restored thereafter the revision was disposed of with the following or:

"we thereby direct that the State Government shall communicate to the petitioner the final payment payable within one month of receipt of this order and the petitioner shall deposit the due amount with the State Government within a period of three months of such limitation. On receipt of the due amount the State governments impugned order will stand vacated and the mining lease will stand restored".

(emphasis supplied).

Since the petitioner did not hear from the respondents she voluntarily deposited a sum of Rs. 50,081/- on 19.7.1993 towards the dead rent on the basis of her own calculation. The S.B. Civil Writ Petition No. 2857/1989 filed by the petitioner before the Single Bench challenging the demand of Rs. 30,699.41 vide notice dated 19.12.1987, was disposed of on 04.10.1996 with direction to the State Government to decide the representation of the petitioner within a period of six months after affording opportunity of hearing. Thereafter, the petitioner submitted representation and a number of reminders and for deciding representation of the petitioner but to no avail.

In the meantime, there was an amnesty scheme floated by the mining department which was availed of by the appellant and in pursuance to the said scheme, the appellant deposited on 7.4.2004 a sum of Rs. 91,778/- towards demand created prior to 31.3.1996 and a sum of Rs. 1,64,900/- payable towards the interest was waived.

The respondents after a huge gap of almost 14 years decided the representation of the petitioner vide order dated 03.11.2011 holding that concessional rate of dead rent is not applicable to the mines and that the petitioner has not produced any evidence to show that she had not operated the mine in question and that general rate of dead rent would be applicable. In the said order, it was also stated that the original period had expired and the petitioner had not submitted any renewal application.

Against the order dated 3.11.2011 the petitioner submitted a representation stating that the mining lease was canceled on 12.04.1990 and the possession of the said mine was taken on 18.05.1990. The appellant also submitted that she was not liable to pay dead rent for the period the possession was not with her. Fearing that the respondents were going to declare the mine in question as vacant, the petitioner preferred a writ petition being S.B. Civil Writ Petition No. 11999/2011 before the Single Bench inter-alia on the ground that she would not be liable to pay dead rent as per the circular dated 14.03.2008 for the period the possession of the mine did not remain with the appellant. A challenge was also made to the order dated 03.11.2011 contending that the Hon''ble High Court vide order dated 04.10.1996 had directed the respondents to decide representation of the appellant-petitioner after giving due opportunity of hearing. The petitioner inter alia also prayed for the restoration of the mining lease as per the order dated 29.10.1992 passed by the revisional authority.

The respondent State also filed its reply controverting the contentions and submissions made in the writ petition. As per the reply, it was contended that the petitioner''s license period had since expired and the appellant had also not moved any application for extension of lease.

After hearing the arguments, the learned Single Bench came to the conclusion that the mining lease could not be restored to the appellant since the same stood determined as far back as 12.04.1990. The learned Single Bench was also of the opinion that the appellant-petitioner remained silent for about 13 years and did not move any representation for consideration of restoration of the mining lease. The learned Single Bench was also not inclined to extend the period of mining lease for the period from the date of termination till the date of restoration of the mining lease. Refusing to exercise extraordinary jurisdiction under Article 226 of the Constitution of India, the writ petition came to be dismissed. Aggrieved against said order of dismissal, the present appeal has been filed by the appellant.

We have heard the counsel for the parties and also gone through the record of the case.

Admittedly, the appellant had been granted the mining lease for the period from 12.01.1984 till 11.01.2004. The respondents on the basis of the notification dated 05.05.1987 issued a revised demand for depositing dead rent of Rs. 30,699.41. Against this demand, the appellant filed a writ petition before this Hon''ble Court being S.B. Civil Writ Petition No. 2857/1989 since the appellant failed to deposit the sum of Rs. 30,699.41 against the demand of dead rent, the mining lease was canceled and possession of the said area was taken over by the department on 18.05.1990. The lease was canceled on account of non deposit of dead rent. Cancellation was challenged before the revisional authority and the same was disposed of on 29.10.1992 with a direction that the dead rent amount payable would be communicated to the petitioner who in turn would deposit the same within a period of three months. A direction was also issued for the restoration of the mining lease on deposit of the dead rent. Since the respondent failed to communicate the amount payable the petitioner deposited the dead rent of Rs. 50081/-.00 payable as per her own calculation on 19.7.1993. The Civil Writ Petition in the High Court was disposed of on 04.10.1996 with a clear cut direction to the State Government to decide the representation of the appellant preferably within six months after affording an opportunity of hearing to the appellant and by giving a reasoned speaking order.

The appellant submitted a representation on 07.11.1996 itself which was followed by subsequent representations dated 31.12.2009 and 06.04.2011 but despite the fact that there was a categoric direction given by Revisional authority to restore the mining lease on payment of dead rent and a direction by the Single Bench of this Court, the respondents neither restored possession nor decided representation of the appellant. After a lapse of almost 14 years, the letter dated 03.11.2011 came to be issued wherein the appellant was informed that notification dated 5.5.1987 would be applicable and that the appellant would not be entitled for concessional rate of dead rent for mines and as the appellant had not been able to show evidence that the mine was not functional for all these years, the appellant would be liable to pay general rate of dead rent. The learned Single Bench while dismissing the writ petition came to the conclusion that the appellant would not be entitled to any relief on account of the fact that there was an inordinate delay in moving the representation after decision of the writ petition and held that the order dated 12.04.1990 had attained finality and any challenge to the said order after inordinate delay of 20 years could not be entertained.

The learned Single Bench has failed to appreciate and take note of the fact that after disposal of the revision petition it was incumbent on the State to inform about the dead rent payable within a period of one month. The State failed in its duty to inform about the dead rent payable with the result the appellant deposited the same as per her own calculations as far back as 19.7.1993. The writ petition was also disposed of on 04.10.1996, with a direction given to the State Government to decide the representation made within a period of six months after affording due opportunity of hearing to the appellant. The relevant portion of the order dated 04.10.1996 is quoted as under:--

"In view of the aforesaid submission made by the learned counsel for the parties the instant writ petition is finally disposed of with a direction to the State Government to decide the representation of the petitioner preferably within six months from today after affording an opportunity of hearing to the petitioner by speaking order".

In consonance with the order dated 04.10.1996, the petitioner moved a detailed representation on 07.11.1996. A copy of which is enclosed as Annex. 11 with the writ petition wherein it was stated that the petitioner had deposited a sum OF Rs. 50081/vide receipt dated 19.07.1993. It was also mentioned that possession had been taken over by the Mining Engineer, Rajsamand on 15.05.1990 and that the appellant would not be liable to pay the dead rent against the period for which possession was not with the appellant. There are other representations on record. It is also to be noted that the appellant had deposited a sum of Rs. 91,978/- vide challan dated 7.04.2004 and the same was accepted by the Mining Engineer, Rajsamand (Div. II). The appellant moved another representation on 6.4.2011 requesting for being given possession of the mine so that the appellant could continue with the mining operations. In pursuance of that, the order dated 03.11.2011 also came to be passed.

After the appellant had deposited dead rent in 1993 itself as per the order of the revisional authority, the mining lease was to be restored.

The Engineer even accepted the sum of Rs. 91,778/- as far as back on 30.03.2001 for a period up to 31.03.1999 but this fact has not been taken note of by the learned Single Bench while dismissing the writ petition. It cannot be said that the appellant is at fault or has kept quiet for a period of 20 years. In fact, it is the respondent State that failed in its duty to either comply with the order passed by the revisional authority or comply with the order passed by the High Court before passing the order impugned dated 03.11.2011.

We find that the appellant herein has been actively pursuing her case and it is only after the impugned dated 03.11.2011 came to be passed, cause of action arose to the appellant-petitioner to challenge the same in the writ petition. Thus, the finding of the learned Single Bench to the effect that the petitioner has approached the Court after an inordinate delay of 20 years is not sustainable.

The appellant has relied upon several judgments of the Hon''ble Supreme Court to contend that no dead rent can be realized from her for the period she did not remain in physical possession of the lease area. We find merit in the contention raised and hold that the appellant is not liable to pay dead rent from the period when possession of the mining area was taken i.e. from 11.05.1990. The order dated 03.11.2011 is a non-speaking order in so far as it does not decide or take note of any of the contentions raised by the appellant in the detailed representation filed by her on 7.11.1996, the same is set aside. The mining lease of the appellant was canceled on account of non payment of dead rent. It is noticed that the appellant had deposited the sum of Rs. 50081/- vide receipt dated 19.07.1993 based on the orders passed in the revision petition and subsequent thereto, the dead rent has been paid and accepted by the Mining Engineer in the year 2004 for a period upto 31.3.1996. Subsequently, after accepting the dead rent, the respondents are hereby estopped from raising the plea that the appellant had not deposited the dead rent nor had she applied for renewal of the mining lease.

Therefore, we are of the opinion that the appellant-petitioner is entitled to be restored the mining lease which had been canceled on 12.04.1990 pursuant to the order passed by the revisional authority. The mining lease would be operative for the balance period of the original lease. Possession of the mining area is to be handed over to the appellant within a period of four weeks from the date of receipt of copy of this order.

With the above observations, the appeal is allowed. The order dated 05.10.2012 passed by learned Single Bench is hereby set aside with no order as to costs.