Rampal vs State of Rajasthan and Others

Vineet Kothari, J.—The petitioner has approached this Court by way of present writ petition being aggrieved by the condition imposed in the impugned order dt. 02.01.2002 (Annex. 1) passed by the Deputy Secretary Mines, Government of Rajasthan, Jaipur while allowing petitioner''s appeal under Rule 43 of the Rajasthan Minor Mineral Concession Rules, 1986 (for short, hereinafter referred to as ''Rules of 1986''). The said appeal was filed by the petitioner against the order dt. 12.04.1999 of the Mining Engineer cancelling the mining lease of Plot No. 5, in Village-Nosra, for mining granite. The petitioner was given a show cause notice dt. 30.10.1998 for non-payment of ''Dead Rent'' for the period 25.05.1998 to 24.11.1998 of Rs. 13,220/- and also royalty for period 25.05.1996 to 24.05.1998. On account of such non-payment, the mining lease of the petitioner came to be cancelled by the Mining Engineer on 12.04.1999, which was, however, restored upon the appeal filed by the petitioner by the impugned order itself dt. 02.01.2002 on the ground that the petitioner thereafter upon service of show cause notice, and after cancellation of mining lease vide order dt. 12.04.1999 had deposited the entire dues of ''Dead Rent'' with interest amounting to Rs. 30,450/- on 12.12.2000.

The appellate authority i.e. the Deputy Secretary, Mines therefore, restored the mining lease by the order dt. 02.01.2002, however, while restoring the mining lease, the said authority also directed that for the interim period viz. from the date of cancellation of mining lease on 12.04.1999 till the date of its restoration on 02.01.2002, the petitioner should still pay the ''Dead Rent'' and another dues with interest, and this impugned part of the order is assailed by the petitioner in the present writ petition since it was otherwise final under the Act.

Mr. Amit Vyas for Mr. D.D. Thanvi, learned counsel for the petitioner submitted that in pursuance to the said order, the petitioner deposited a sum of Rs. 77,890/- for the said mine in question as penalty of Rs. 83,227/- as dead rent, under protest vide receipts Annex. 5 and Annex. 6 dt. 01.02.2002 in pursuance of the impugned order dt. 02.01.2002. He further submitted that in view of Circular dt. 14.03.2008 issued by the respondent-Mining Department itself and judgment of this Court in case of Ganpati Khanij Udhyog Vs. Union of India (UOI) and Others, and intra-Court appeal preferred against the said judgment of learned Single Judge being DBSAW No. 584/1998-State & Anr. vs. M/s Ganpati Khanij Udyog & Anr. also came to be dismissed by the Division Bench of this Court vide order dt. 17.07.1998, the petitioner is entitled to the refund of the said amount deposited by him under protest.

Learned counsel for the petitioner, Mr. Amit Vyas also submitted that the legal position is no more res-integra that the respondent-Mining Department is not entitled and authorized to demand any dead rent, or royalty, or any other charges for the period during which the mine had admittedly remained closed and in the possession of the respondent-Mining Department itself in pursuance of cancellation order dt. 12.04.1999 and thereafter, possession of mine taken by the Mining Department vide Annex.2 dtd. 18.05.1999, and till the date of impugned order dt. 02.01.2002. He, therefore, submitted that the amount deposited by the petitioner under protest now, deserves to be refunded back to the petitioner with interest @ 24% per annum as prayed in the writ petition.

On the other hand, Mr. R.K. Soni, learned counsel for the respondents submitted that though the legal position is undisputed that no dead rent and royalty for period for which the mine remained closed and in the possession of the Mining Department in pursuance of cancellation order dt. 12.04.1999, could be charged but he submitted that for period up to 18.05.1999 even after the cancellation of Mining Lease on 12.04.1999, is the period for which the dead rent and such royalty can be demanded since possession was taken back only on 18.05.1999. He also submitted that the petitioner never approached the respondent authorities for refund of said amount even during the pendency of the this writ petition; and even after the aforesaid Circular dt. 14.03.2008 was issued and since there was no stay of the proceedings, before the authority concerned granted by the Court, the respondents could have considered the request of the petitioner for refund of said amount in terms of the Circular dt. 14.03.2000 and the decision of this Court, but in the absence of the petitioner having approached the respondents, the said refund could not be made earlier. He, however, fairly submitted that the petitioner may even now approach the respondents, they would abide by the said Circular and the decision of this Court in the case of M/s. Ganpati Khanij Udhyog (supra) and the respondents would make necessary refund to the petitioner after adjustment of the dead rent and royalty for the period up to 18.05.1999 and no Dead Rent, royalty etc. would be taken up to the date when the possession was handed over back to the petitioner in pursuance of the order dt. 02.01.2002.

Having heard learned counsel for the parties, and in view of aforesaid settled legal position, the Circular dt. 14.03.2008, which is quoted herein below for ready reference, and so also, the judgment cited at bar, this Court is of the opinion that the present writ petition filed by the petitioner deserves to be allowed and the amount deposited by the petitioner under protest vide Annex. 5 and Annex.6 dt. 01.02.2002 also deserves to be refunded back to the petitioner with interest, however, after adjustment of dead rent and royalty, if any payable up to 18.05.1999. The Circular dt. 14.03.2008 reads as under: -

During the period for which the mine admittedly remained in the possession of Mining Department and the petitioner was not allowed to undertake any mining work, no such dead rent or royalty can be demanded by the respondent Mining Department from the petitioner for such interim period. Therefore, to that extent, the condition imposed in the impugned order dt. 02.01.2002 (Annex.l) deserves to be quashed.

This Court in the case of M/s Ganpati Khanij Udhyog (supra) held as under:-

Besides that, there cannot be any justification for the respondents to charge dead rent for the period the lease area remained in the possession of the State Govt. Dead rent is the minimum annual payment which is required to be made by the lessee even if there is no mining work in particular area. Royalty is the rent which the lessor of a mine charges from a lessee for the product taken out from the mine. It varies with the quantity of the minerals. When there is no mining work by the petitioner in the mining area and it was not in the possession of the petitioner there could not be any justification for charging dead rent from the petitioner. This Court has taken this view in the cases of Chhoga Ram and Radhey Shyam (supra). Even the Central Govt. in its order dt. 14.05.1984 in case No. 321/84 M/s. Chemical Limes vs. State of Rajasthan, held that the State Govt. was not entitled to claim dead rent for the period the possession of the lease area remained with the Govt.

The Division Bench of this Court also dismissed the intra. Court appeal (DBSAW No. 584/1998-State & Anr. vs. M/s Ganpati Khanij Udyog & Anr.) preferred by the State, against the judgment of learned Single Judge on 17.07.1998. In view of this settled legal position and there being no serious dispute on the same, from the side of the respondents, this writ petition is allowed to the extent indicated herein above and while upholding the impugned order Annex.1 dt . 02.01.2002, to the extent it set aside the limine cancellation order dt. 12.04.1999, the remaining impugned part of the order to the extent it directed the petitioner to deposit the dead rent and other dues for the interim period is quashed. The petitioner may appear before the concerned authority, namely. Mining Engineer, Jalore in the first instance on 11.02.2013 and the respondents shall pass a speaking order determining the dues, if any, of dead rent and royalty up to 18.05.1999 and after adjustment of the same against the amount in question, refund the due amount to the petitioner with interest @ 9% per annum from the date of deposit till the date of actual refund of amount. The said exercise may be undertaken and completed within a period of three months from today positively. No costs. A copy of this order be sent to the petitioner and respondents forthwith.