Chhoga Ram Mundoliya Vs. the State of Rajasthan and ors. - Court Judgment

Excerpt:
constitution of india - article, 226 and mines minerals (regulation & development) act, 1957--section 10--royalty and dead rent--discretion between--held, lease money not to be paid for period lease was cancelled.;there is difference between royalty and dead-rent. royalty is a kind of rent which the lessor of a mine charges from the lessee, the charge varying with the quantity of minerals etc. reduced during each year. dead rent is thus a kind of mineral rent of royalty with this difference that the rent called royalty is a varying charge based on the value of the product and the rent called dead-rent is a minimum annual payment which is usually not enforced if the amount payable as annual royalty is more than the amount of dead-rent fixed for the year. royalty in this sense is thereefore the genus of which dead rent is species.;the prayer of the petitioner that as he could not operate or excavate the lease area inspite of his best efforts, & also repeated request to the department, he should not be asked to pay lease money for all this period before the lease deed was cancelled, seems to be justified.;writ partly allowed - - the said mining lease was cancelled vide order dated 12.8.85 as the petitioner failed to deposit dead-rent for the period from 20.1.84 to 19.1.1985, amounting to rs. the said application was dismissed by the court on 26.2.1985. thereafter also, he filed a revision petition before the state government which was also dismissed on 21.10.1986. it has further been submitted that writ petition should be dismissed in limine because the petitioner has failed to avail another alternative remedy which was also equally efficacious, by filing a revision petition under section 30 of the mines & minerals (regulation and development) act, 1957 (in short 'the act of 1957'). in the reply, it has further been submitted that the petitioner was handed over possession reply, it has further been submitted that the petition was handed over possession of the area and the area was also demarcated and if thereafter, any hindrance has been made in the leased area by certain strangers, that would not justify non payment of dead-rent, in any manner. 6. petitioner has also filed a copy of the plaint as well as the written statement submitted in the trial court. 10. he has also submitted that is was the duty of the government to have put the petitioner in possession of the property and if once the petitioner would have been put in possession then, it would have been his duty to restore the property back to the government in as good condition as it was at the time when he was put in possession. i have perused the record as well. the petitioner did his level best and also approached the department if he could be given possession but he did not succeed and for this reason, the petitioner did not pay the dead rent & because he did not pay the dead-rent, the lease has been cancelled. the prayer of the petitioner that as he could not operate or excavate the lease area inspite of his best efforts, & also repeated request to the department, he should not be asked to pay lease money for all this period before the lease deed was cancelled, seems to be justified.s.n. bhargava, j.1. as per the facts mentioned in the memo of writ petition petitioner deposited security amount of rs. 1500/- and also paid quarterly dead-rent amounting to rs. 1500/- in advance on 20.1.1984. lease deed was registered in his favour on 16.1.1984 and the annual dead-rent was fixed at rs. 6,000/-, the petitioner had been granted mining lease for ten years w.e.f. 20.1.1984 for mineral marble, near dhani of village narmanpur, distt. ajmer, for an area measuring 100x100 meters in khasra no. 786. the site of the aforesaid mining area was shown on the papers but no physical or actual possession was delivered to the petitioner by the department. sultan singh and his son ajeet singh obstructed as they were cultivators of neighbouring field and therefore, the matter was referred to the concerned authorities of the department and it was requested to evict those persons from the mining area so that mining operations could be started. the petitioner made his all efforts by contacting all the concerned authorities but with no result. however, the tehsildar, ajmer, inspected the site and proceeded under section 91 of the rajasthan land revenue act, 1956. the s.d.m. ajmer also rejected the regularisation proceedings of the aforesaid trespassers. a case under section 447 ipc was also registered at p.s. gegal against those persons for committing tress pass in the mining area allotted to the petitioner. assistant mining engineer, markrana, illegally cancelled the mining lease and forfeited the security deposited by the petitioner vide order dated 12.8.1985 and the petitioner was ordered to deliver possession of the area to the mining department. the petitioner has further been penalised for payment of annual dead-rent amounting to rs. 9000/- plus penal interest thereon. the petitioner submitted a revision petition against the said order dated 12.8.1985 before the deputy secretary to government. mines department which was also dismissed on 21.10.1986 and it is against this order that the present writ petition has been filed in this court on 15.12.1986. notices were issued on 18.12.1986 as to why this writ petition should not be admitted.2. reply has been filed on behalf of ajeet singh, respondent no.4 on 25.8.1988 wherein he has submitted that the petitioner was never handed over physical possession of the land in dispute: sultan singh or his son ajeet singh (respondent no. 4) never put any obstructions but the answering respondent is in occuptation of the said lund in his own rights and had been cultivating the same and had also got a boda in a portion of the land bearing khasra no. 786 from the life time of his father, for the last forty years or so. he had not encroached upon any land nor had trespassed nor put any obstruction and the matter is still pending for regulation before the s.d.o. and challan under section 446 ipc is also pending adjudication, he has further submitted that the petitioner had filed a suit for mandatory injunction and damages against the state of rajasthan which is till pending & since the petitioner has already an alternative remedy by filing the above suit, the present writ petition deserves to be dismissed on this ground alone. it has futher been submitted that the land bearing khasra no. 786 is a part of land known as durga mataji ki doongari which is a sacred and religious place for the residents of nearby village and there also exists an old temple of durga mataji.3. separate reply has been filed on behalf of the respondent nos. 1 to 3 wherein it has been submitted that the petitioner had applied on 18.4.1983 for a mining lease for mineral marble, a minor mineral. the said application was allowed and the petitioner was sanctioned a mining lease by an order of the mining engineer, dated 21.9.1983. the said mining lease was granted on an annual dead-rent of rs. 6,000/-. the petitioner deposited rs. 130/- as demarcation fees on 9.11.1983 and also deposited advance dead-rent amounting to rs. 1500/- on 13.12.1983. the sanctioned lease area was demarcated in the presence of the petitioner on 4.1.1984 and the demarcation report so prepared was also signed by the petitioner. thereafter, a mining lease was executed on 16.1.1984 and registered on 20.1.1984. the respondents no. 1 to 3 in their reply have further asserted that the contention of the petitioner that only the site was shown to the petitioner but the area was not demarcated and no physical or actual possession of the site was delivered and only paper possession was delivered, is vehemently denied. the said mining lease was cancelled vide order dated 12.8.85 as the petitioner failed to deposit dead-rent for the period from 20.1.84 to 19.1.1985, amounting to rs. 4500/- for which notice was also issued by the mining engineer. it has also been mentioned that the petitioner had also filed a civil suit before the learned district judge. ajmer. an application was also filed for temporery injunction under order 39 rules 1 and 2 cpc, praying that the respondent be restrained from realishing the amount of dead-rent. the said application was dismissed by the court on 26.2.1985. thereafter also, he filed a revision petition before the state government which was also dismissed on 21.10.1986. it has further been submitted that writ petition should be dismissed in limine because the petitioner has failed to avail another alternative remedy which was also equally efficacious, by filing a revision petition under section 30 of the mines & minerals (regulation and development) act, 1957 (in short 'the act of 1957'). in the reply, it has further been submitted that the petitioner was handed over possession reply, it has further been submitted that the petition was handed over possession of the area and the area was also demarcated and if thereafter, any hindrance has been made in the leased area by certain strangers, that would not justify non payment of dead-rent, in any manner.4. a rejoinder to the said reply has been filed by the petitioner on 28.9.1989 wherein it has again been asserted that physical possession of the lease area was never given to him but only paper possession was handed over to him since the department itself was not having actual physical possession for the leased area at the time of the grant or prior to it. it has further been submitted that the mining department has played a fraud and mis represented that the area was available with them for grant of mining lease and since physical possession of the lease area was never handed over to the petitioner, the petitioner is not liable to pay any dead rent. the petitioner has enclosed with the rejoinder a copy of his application dated 14.2.1984 which was duly received by the mining engineer, ajmer. the petitioner had also filed a copy of the return for the month of jaunary, 1984 and subsequent periods showing that no mining operations could be done because sultan singh was in actual physcial possession and he was not allowing the petitioner to do any mining operation. he has quoted instance of one girwar lal who also could not do mining operations due to obejctions by forest department and it was held that dead-rent for such period was not recorverable.5. it has been submitted that the petitioner filed the civil suit mainly for the relief of possession of the lease area but since his lease had been cancelled, the suit had become infructuous and therefore, he had to file the present writ petition.6. petitioner has also filed a copy of the plaint as well as the written statement submitted in the trial court.7. arguments have been heard and case file has been perused.8. learned counsel for the petitioner shri n.k. maloo has placed reliance on calcutta discount co. v. income tax officer : [1961]41itr191(sc) wherein it has been held that existence of an alternative remedy is not, however, always a sufficient reason for refusing a party quick relief in a writ under article 226. where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthly proceedings and un-necessary harassment, or is likely to subject a person to lengthy proceedings and un-necessary harassment, prevent such consequences. to the same effect is l. hirday narain v. income tax officer : [1970]78itr26(sc) wherein their lordships have observed that once writ petition has been admitted and given hearing on merits, petition should not be rejected on the ground that statutory remedy was not availed.9. he has further drawn my attation to section 20 of the contract act which provides that where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void.10. he has also submitted that is was the duty of the government to have put the petitioner in possession of the property and if once the petitioner would have been put in possession then, it would have been his duty to restore the property back to the government in as good condition as it was at the time when he was put in possession. in this connection, he drew my attention to section 108 (b) and (m) of the transfer of proerty act.11. my attention has also drawn to ahmedar rehman v. janu niranjan air 1930 calcutta 385 and jogesh chanda v. emdad meah air 1932 pc 28 wherein their lordships have held that where there is no dispute as to the identity subjects lets, but the tenant denies that he has ever got possession of the subjects, it is for the landlord to prove that he has discharged his obligation to put the tenant in possession before he can enforce the tenant's obligation to pay rent.12. he was further submitted that under the rajasthan minor mineral concession rules, 1986, the mining engineer/assistant mining engineer is obliged to maintain a register of mining lease applications and mining lease shall be granted for such area as the government may, deem fit. the area has to be demarcated and the demarcation report has to be prepared but if the department is not in actual physical possession, it cannot handover actual physical possession to the leasseee and, it is only a paper possession which is usually handed over to the lessee. it is only when actual physical posssession is handed over to a lessee that the lessee is obliged to handover possession of leased property to the mining engineer on expiry of the lease period on termination of the lease, as per rule 18 of the rules of 1986. he has further submitted that the plea taken by the petitioner in rejoinder can be looked into at the time of giving relief to the petitioner, as has been observed by this court in smt. geeta bajaj and ors. v. the state of rajasthan and ors. 1982 rlr 67.13. it has further been submitted by the petitioner that the suit was filed by him before cancellation of lease and it was prayed that the lease should not be cancelled but during the pendency of the suit, the lease had been cancelled and the prayer sought in the present writ petition could not have been sought in the suit filed by the petitioner.14. on the other hand, learned counsel for the department has also very vehemently submitted that the writ petition should be dismissed on the sole ground that no revision petition was filed by the petitioner against the impugned order before the central government. in this connection, he has placed reliance on champa lal v. state of rajasthan . moreover, in the present case, lease was cancelled for non payment of dead-rent and it is not the case of the petitioner that he had paid dead-rent or that the amount of dead-rent was not due. his only plea is that since he could not get possession, he could not operate the mining area & therefore, he was not expected to pay any dead-rent which plea cannot be accepted because the department had done whatever was possible and necessary for it to do.15. learned counsel for the department has also placed reliance on the order dated 26.2.1985 dismissing application under order 39 rule 1 and 2 cpc. filed in the court of distt. judge, in the suit and this order has become final, as no appeal or revision had been filed and is binding on the parties and also is res judiciata between the same parties. he has further submitted that the question as to whether the possession was handed over or not is a disputed question of fact which cannot be decided in extra-ordinary writ jurisdiction and the only proper remedy or course open to the petitioner is to pursue his remedy by way of suit. in this connection, he has placed reliance on jai singh v. union of india : [1977]2scr137 . he has further submitted that since it is not a case of ordinary lease but it is a case of statutory lease as the minerals vest in the state government and therefore, it is the state government alone which can grant lease for operating the area and as per the rules, it was the petitioner who had applied for grant of a lease. the department had demarcated the area and the petitioner also deposited advance dead-rent. thereafter, the lease was executed and registered and the lease-deed became effective from the date it was registered and the petitioner was liable to pay dead rent from that day.16. i have given my thought full consideration to the whole matter and have also considered various sumbission made at the bar. i have perused the record as well.17. there is difference between royalty and dead-rent. royalty is a kind of rent which the lessor of a mine charges from the lessee, the charge varying with the quantity of minerals etc. reduced during each year. dead rent is thus a kind of mineral rent of royalty with this difference that the rent called royalty is a varying charge based on the value of the product and the rent called dead-rent is a minimum annual payment which is usually not enforced if the amount payable as annual royalty is more than the amount of dead-rent fixed for the year. royalty in this sense is therefore the genus of which dead-rent is a species, as has been observed in atma ram bilochi v. state of rajasthan 1980 rlw 588. in the present case, it is an admitted fact that the petitioner could not operate and did not excavate and could not utilise the leased property. the reason is also obvious that the person who was the cultivator and had actual physcial possession of the land did not allow the petitioner to operate the area. the petitioner did his level best and also approached the department if he could be given possession but he did not succeed and for this reason, the petitioner did not pay the dead rent & because he did not pay the dead-rent, the lease has been cancelled. the petitioner filed a civil suit with a prayer that the department may be directed to handover possession of the lease area and also that till the possession is handed over to him, he may not be required to pay the lease money. the petition to the petitioner. during the pendency of the suit, the lease-deed was cancelled and he has been asked to pay the lease money for the whole period and therefore, the petitioner filed the present writ petition wherein he had prayed that the order cancelling the lease may be quashed and it may be declared that he is not liable to pay the lease money as possession was not handed over to him. during the pendency of the writ petition, realising that it will not be possible for the department to hand over possession to the petitioner and therefore it will not be practicable or possible for him to excavate and operate the area, the petitioner in his rejoinder, additional affidavit and also during the course of arguments has given up his prayer for declaring the order cancelling his lease, as invalid and has confined his prayer only for a declaration that he should not be required to pay lease money. in this view of the matter, i do not propose to deal various questions raised in the writ petition. it is not disputed that the petitioner could not operate and did not excavate anything from the lease area because he could not get the actual physical possession of the lease area. i do not propose to go into the question as to who is responsible or as to whether it was petitioner's fault or the department's fault. the prayer of the petitioner that as he could not operate or excavate the lease area inspite of his best efforts, & also repeated request to the department, he should not be asked to pay lease money for all this period before the lease deed was cancelled, seems to be justified.18. in the result, i allow this writ petition in part and declare that the mining department is not entitled to recover any money for the lease area upto the period lease of the petitioner was cancelled. the department may however retain a sum of rs. 1500/- which was paid as advance lease money by the petitioner. the petitioner has assured this court that in case this prayer is granted, he will not pursue his remedy by way of civil suit. therefore, petitioner is directed to make a proper application in the concerned court for withdrawing his suit in this regard. no order as to costs.