Jagpal Sharma, Meerut vs The D.M./Collector, Meerut And ...
2015 Latest Caselaw 2315 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 34
 

 
Case :- FIRST APPEAL No. - 668 of 1994
 

 
Appellant :- Jagpal Sharma 
 
Respondent :- The D.M./Collector, Meerut And Others
 
Counsel for Appellant :- G.C. Bhattacharya,Bharat Pratap Singh,M.L. Shukla
 
Counsel for Respondent :- S.C.
 

 
Hon'ble Sudhir Agarwal, J.

Hon'ble Brijesh Kumar Srivastava-II, J.

1. This is plaintiff's appeal under Section 96 of Code of Civil Procedure (hereinafter referred to as "CPC") arising from judgment dated 09.09.1994 and decree dated 13.09.1994 passed by Sri Anurag Kumar, Civil Judge, Meerut dismissing Original Suit No. 455 of 1993.

2. Plaintiff, Jagpal Sharma, instituted aforesaid suit vide plaint dated 06.05.1993 impleading District Magistrate/Collector, Meerut; State of U.P. through Collector, Meerut; Prabhari Adhikari (Khanij), Meerut; Additional District Magistrate (Finance), Meerut; Sub-divisional Officer, Tehsil Baghpat, Meerut; and, Tehsildar, Tehsil Baghpat, Meerut as defendants 1, 2, 3, 4, 5 and 6 respectively. Plaint case set up by plaintiff is that vide auction/ tender notice dated 13.04.1991, defendants advertised auction of mining rights to excavate sand of Yamuna River in the area detailed at the foot of plaint in Schedule-A, which comprised of following:

Name of Tehsil

Name of

Village

Gata No.

Area

in Hactare

Baghpat

Sankrod Khadar668 of

25 to 28, 30, 113, 114, 127 to 129, 132, 154, 155, 159, 161, 162

18.439 Hectare

Ma668 ofvi Kala

1326,1357 to 1362, 1364,1367 to 1379, 1385, 1386, 1389, 1390

5.570 Hectare

Jagos Khadar

101 to 104

3.808 Hectare

Chhaprauli Khadar

1 Minjumla

61.000 Hectare

Gauri Pur

-1/2

12.899 Hectare

Sisana Khadar

164 to 194,

278 to 303,

715 to 721,

784, 744,

750 to 779

40.025 Hectare

Khandwari Khadar

2 to 108,

194, 284, 263

35.075 Hectare

Baghpat Khadar

188, 193 to 226, 334, 335, 487 to 491, 402

73.046 Hectare

3. The auction was held on 13.05.1991. Plaintiff participated in the auction and offered highest bid, which was accepted by order dated 20.06.1991 of defendant 1 communicated by defendant 3 vide letter dated 29.06.1991. The bid was for Rs. 27,05,000/-. The mining rights were given for a period expiring on 30.09.1992. Plaintiff deposited Rs. 6,76,250/-, 1,50,250/-, 5,26,000/-, 1,56,000/- and 6,76,250/- (total Rs. 21,84,750/-). Defendants, however, despite their obligation to execute a lease-deed in favour of plaintiff under Rule 29, U.P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as "Rules, 1963") failed to execute the same and also did not allow plaintiff to undertake mining activities. Mining area spread over eight villages having total area of 249.862 hectares. Possession thereof was to be given to plaintiff, free from all hurdles and disputes, but defendants failed to do so. After a great difficulty plaintiff was handed over possession of only 5.5 hectares land in village Mavi Kalan and 10.5 hectares in Village Baghpat. When plaintiff proceeded for mining activities, found that entire area handed over to him had crop cultivation like sugarcane, watermelon, cucumber, wheat etc. besides several dwelling units of villagers. On inquiry, plaintiff was informed by villagers that entire land was given on Patta to those villagers, long back, who were socially backward people. In fact, defendants had already executed Pattas in respect to some of land, to others, for crop cultivation etc. For the aforesaid reason, plaintiff was not able, either to take possession or undertake any excavation of sand, in the said area. Defendants have grossly flouted and violated terms and conditions of statute as well as terms and conditions of auction. Defendants are guilty of having perpetrated fraud upon plaintiff by taking money in respect to land which was never available for mining lease. Several representations were given by plaintiff on 25.07.1991, 19.11.1991 and 16.03.1992 but no response was given by defendants. The Officer-in-charge (Mining) sought a report from Tehsildar who submitted report stating that land was already under crop cultivation and in possession of other lease holders, hence could not be given in possession to plaintiff. Despite that, defendants have raised demand of Rs. 6,76,250/- upon plaintiff vide demand notice dated 15.05.1992, though it was wholly illegal and barred by Section 92 of Indian Contract Act, 1872 (hereinafter referred to as "Act, 1872). In fact, plaintiff has suffered loss of Rupees sixteen lacs per month for non excavation etc. Though lease was for a period of three years but it was illegally cancelled by defendants on 22.06.1992 causing serious loss to plaintiff. Plaintiff filed Writ Petition No. 3167 of 1992, but the same was dismissed on the ground of alternative remedy vide judgment dated 23.09.1992 observing that petitioner has alternative remedy to file suit for damages in Civil Court. Plaintiff took the matter to Apex Court, but it has also dismissed appeal taking the same view. Plaintiff, therefore, sought a decree of permanent injunction (mandatory injunction) directing defendants to execute lease-deed in favour of plaintiff pursuant to auction held on 13.05.1991 regarding area detailed in Schedule-A at the foot of plaint and deliver possession thereof. He further sought a decree of prohibitory injunction restraining defendants from proceeding to recover Rs. 6,76,250/- pursuant to demand notice dated 15.05.1992. A further mandatory injunction was sought against defendants for refund of Rs. 31,85,750/- (Rs. 21,84,750/- deposited by plaintiff and interest thereon). It also sought a permanent injunction against defendants to pay Rupees sixteen lacs with interest towards damages by way of compensation and also interest at the rate of 24 per cent per annum, pendent lite till the date of payment.

4. Defendants contested the suit filing their combined written statement dated 06.07.1993 stating that plaintiff has deposited Rs. 20,28,750/- against bid money of Rs. 27,05,000/-. A sum of Rs. 1,56,000/- deposited by plaintiff was not part of bid money but deposited by him towards payment of sand excavation allowed to him on day to day basis for 27 days, i.e., from 24.05.1991 to 19.06.1991 at the rate of Rs. 5,780/- per day. It was pursuant to an interim order dated 09.05.1991 passed by this Court in Writ Petition No. 23222 of 1992 filed by plaintiff wherein confirmation of auction was stayed for six weeks. Plaintiff made a prayer that during this period he may be allowed to excavate sand on per day basis which was permitted. In the auction notice, it was mentioned that participant may inspect area notified for excavation of sand and thereafter participate. Plaintiff, therefore, after inspection of area mentioned in the auction notice, participated in auction. He had already inspected area wherein sand was available for mining and had no reason to raise any complaint thereafter. The entire area was handed over to plaintiff for excavation of sand. No fraud has been played with plaintiff and there is no breach of terms and conditions of auction at any point of time. Plaintiff has not suffered any loss on account of alleged act on the part of defendants and instead himself is guilty of not depositing entire bid amount. Since plaintiff failed to make payment of installments, hence in terms of conditions of lease, it was cancelled on 22.06.1992 whereagainst plaintiff sought a stay order from Court and continued with mining.

5. Trial Court formulated ten issues as under:

^^1- D;k oknh uhyke dh dk;Zokgh fnukad 13&5&1991 ds vuqlkj izfroknhx.k ds Bsdkukek rgjhj] rdehy djkus ,oa okn fu'kkunsgh ekSds ij dCtk ikus dk vf/kdkjh gS\^^

"1. Whether, as per auction proceedings dated 13.5.1991, the plaintiff is entitled for the contract of the defendants to be written and executed; and to get the possession over the spot as shown in the suit?"

^^2- D;k oknh ,oa izfroknhx.k ds chp ckyw jsr dh fuoklh uhyke dh vof/k ds nkSjku fnu izfr fnu Bsds dh /kujkf'k dh vnk;xh ds vk/kkj ij r; ik;k vkSj izfroknh oknh }kjk tek /kujkf'k 1]56]000&00 Bsds dh /kujkf'k ds vykok ikus dk vf/kdkjh gS] ;fn gkWa rks izHkko\^^

"2. Whether a contract between the plaintiff and the defendants came to be settled on the basis of day-to-day payment of the contractual amount during the auction period of the extraction of sand; and whether the defendant is entitled to get Rs. 1,56,000/- deposited by the plaintiff in addition to the contractual amount?"

^^3- D;k oknh dks izfroknh }kjk uheke 'kqnk dqy {ks= ij dCtk u fnyk;s tkus ds dkj.k Bsds dh vof/k esa dk;Z iwjk ugha dj ldk vkSj oknh viuh Bsds dh tek /kujkf'k okfil ikus dk vf/kdkjh gS\^^

"3. Whether the defendant could not complete the work within the contractual period on account of possession of the entire auctioned area not being handed over to the plaintiff; and whether the plaintiff is entitled to recover his contractual amount so paid?"

^^4- D;k izfroknh] oknh ls vadu 6]76][email protected]& cdk;k /kujkf'k Bsdk ds :i esa ikus dk vf/kdkjh gS\^^

"4. Whether the defendant is entitled to get the remaining contractual amount of Rs. 6,75,250/- from the plaintiff?"

^^5- D;k oknh izfroknhx.k ls /kujkf'k vadu 16]00][email protected]& e; lwn Msestt ikus ds vf/kdkjh gSa\^^

"5. Whether the plaintiff is entitled to recover as damages from the defendants an amount of Rs. 16,00,000/- with interest thereon?"

^^6- D;k oknh izzfroknhx.k ls /kujkf'k lw; nkSjku eqdnek rkolwy ;kuh 24 izfr'kr izfro"kZ dh nj ls ikus dk vf/kdkjh gS\^^

"6. Whether, during the period of the pendency of the suit, the plaintiff is entitled to get from the defendant an amount of interest i.e. at the rate of 24 percent per annum?"

^^7- D;k ekuuh; U;k;ky; dks okn ds fu.kZ; dk vf/kdkj ugha gS] tSlk dh okni= dh /kkjk 40 esa dgk x;k gS\^^

"7. Whether the Hon'ble Court has no jurisdiction to decide the suit, as stated in para 40 of the plaint?"

^^8- D;k okn /kkjk 38] 41] 42 LisflfQd fjyhQ ,DV ls ckf/kr gS\^^

"8. Whether the suit is barred by Sections 38, 41 and 42 of The Specific Relief Act?"

^^9- D;k okn dk ewY;kadu cgqr de fd;k x;k rFkk U;k; 'kqYd de vnk fd;k\^^

"9. Whether the suit is considerably undervalued and the court fee is underpaid?"

^^10- oknh fdl vuqrks"k ds ikus dk vf/kdkjh gS\^^

"10. What relief the plaintiff is entitled to get?"

(English Translation by Court)

6. Issues 1, 2 and 3 were taken together and have been answered against plaintiff and in favour of defendants. Issue 4 then has been answered in favour of defendants. Issues 5 and 6 have been answered against plaintiff. While dealing with Issue 8, Court has held that suit is barred by Section 38, 41 and 42 of Specific Relief Act, 1963 (hereinafter referred to as "Act, 1963") and ultimately answering Issue 10, it has decided the same against plaintiff and consequently dismissed the suit.

7. Counsel for appellant contended that there was no compliance of Rules 29, 35 and 67 of Rules, 1963 and Court below has erred in law in taking an otherwise view. He further contended that lease-deed in accordance with Rule 29 read with 35 of Rules, 1963 was not executed, leased out area was not demarcated and actual possession was not handed over to appellant, hence, respondents cannot recover entire bid amount from appellant. Instead the amount paid by plaintiff deserves to be refunded with interest.

8. Points of determination for adjudication of this appeal, which have arisen, are:

(I) Whether there is any default on the part of defendants-respondents in execution of lease-deed and handing over possession of auctioned area by non complying procedure prescribed in Rules, 1963, and, in particular, Rules 29, 35 and 67?

(II) Whether plaintiff-appellant could not carry out mining in the auctioned area?

(III) if Point-II is answered in affirmative, whether it was for any fault on the part of defendants?

(IV) Whether plaintiff has rightly been denied relief by Court below?

9. Plaint case set up by appellant itself shows that lease was granted to appellant since he was highest bidder and mining rights were settled with plaintiff-appellant for excavation of sand vide order dated 20.06.1991 passed by District Magistrate, Meerut. The pleadings of appellant in this regard in para 4 of plaint read as under:

"The lease was granted to the petitioner as he was the highest bidder. By virtue of acceptance of his bid mining rights were settled with the plaintiff for excavation of sand by order dtd. 20-06-1991 passed by the Distt. Magistrate, Meerut."

10. It is then said in para 8 of plaint that vide Rule 35, defendants were bound to execute in favour of appellant a lease-deed accompanied by a site-plan so as to enable him to identify the land. The contention is that such a deed was not executed.

11. Rule 35 of Rules, 1963, as it stood during the period of dispute, reads as under:

"35. Erections and maintenance of boundary marks:

The lessee shall at his own expense erect and at all times maintain and keep in good repair boundary marks and pillars necessary to indicate the demarcations shown in the plan annexed to the lease."

12. We do not find that Rule 35 at all require execution of any lease-deed in a particular manner. On the contrary, Rule 35 lays an obligation upon lessee himself to erect and maintain all times boundary marks and pillars necessary to indicate demarcations shown in the plan annexed to lease. In para 12 of plaint, it is also stated by plaintiff-appellant that possession of auctioned area was handed over to him but what he claims is that this area was not entire auctioned area, but a smaller one, and, that too, only in two villages, i.e., Mavi Kalan and Baghpat. This shown that his contention that no possession was given is not correct. Possession is admitted and the dispute raised is about area. In support of this contention that only part of auctioned land was handed over to him and not entire, our attention has not been drawn to any evidence, whatsoever, led by plaintiff to prove that only part of auctioned land was given in his possession and not the entire area.

13. Once the factum of handing over of possession is admitted by plaintiff-appellant, onus lay upon him to prove that this possession was not in respect to entire auctioned area, but only part thereof.

14. Counsel for appellant submitted that in oral deposition of P.Ws.- 1, 2 and 3 it has been said that possession of entire area was not given, but we find, when possession is admitted to plaintiff, it was his responsibility to show that it was a partial possession and not the entire one.

15. PW-1 is plaintiff-appellant himself. He said in examination-in-chief that period of auction was 13.05.1991 to 30.09.1992. He deposited first installment of bid amount on 13.05.1991, i.e., Rs. 6,76,250/-, second instrumental on 27.05.1991 and third installment on 12.12.1991. He also stated that defendants-respondents gave possession only in villages Mavi Kalan and Baghpat though he was entitled for possession in eight villages. He thereafter explained that in remaining villages, cultivators had grown different kinds of crops and had also raised their hutments, therefore, mining work of sand was not possible. His statement to this effect reads as under:

^^iz'kklu us eq>s dsoy eoh dyk esa 5 ½ gsDVs;j rFkk ckxir esa 10 ½ gsDVs;j ij dCtk fn;k tcfd 8 xkaoksa ds dqy 250 gsDVs;j {ks= ij eq>s dCtk feyuk FkkA bu ckdh {ks=ksa ij tks fd uhyke gq, Fks dk'rdkjksa ds dCts Fks tks mUgsa mDr xkao ds Xkkao lHkk rFkk ts-,l-lh- us dk'rdkjksa dks iV~Vs ij fn, Fks ftl ij dk'rdkjksa dh Qly xUuk] xsgwWa isyt vkfn [kM+h Fkh rFkk mUgksaus viuh >ksiM+h Hkh Mky j[kh FkhA dk'rdkjksa dks mDr iV~Vs izfroknh la[;k 5 rFkk 6 dh vuqefr ls igys ls gh fn, tk pqds Fks rFkk mDr {ks= ij ckyw fudkyus dk dke ugha gks ldrk FkkA^^

"The administration gave me possession of only 5.5 hectare at Mavi Kala and 10.5 hectare in Baghpat while I should have been given possession of 250 hectare in 8 villages. The rest of these areas which were auctioned, had been in the possession of the cultivators, in whose favour such areas had been leased out by the Gram Sabha and the JSC of the said village on which they had their standing crops of sugar cane, wheat, etc and had put up their huts. The said leases had been allotted earlier itself to the cultivators with the consent of the defendants 5 and 6, and the extraction of sand was not possible to be done on the said area."

(English Translation by Court)

16. He also admits that he has excavated sand and monthly returns were submitted with mining authority. Thus, on the one hand he admits that he carried out mining work but in respect to some part of auctioned area his claim was that mining was not possible since crops were standing thereon and, therefore, he could not carried out mining thereat. The two statements are self contradictory and vague. He also admitted that before participation in auction, he did not visited auctioned area for inspection at all. The Rules permit that before auction, intending participants may inspect the area proposed to be auctioned and then may participate in auction. The purpose is that before participating in auction, participants be well aware of actual area where minting would be possible or can be carried out. When a particular area is put for auction, authorities denote the area in the condition of 'as is where is' and successful bidder has to take it in the same condition. This is fortified from what has been said in Rules 40 and 41 of Rules, 1963. The contradictory statements on the part of appellant is writ large from the fact that in para 12 of plaint, he has averred that only 16 hectares of land in two villages was handed over in possession to him while in his representation dated 25.07.1991 (Paper No. 34Ga), he has said that after making payment of compensation to land owners, he is carrying on mining work in 20 acres of land. The statement in the aforesaid representation reads as under:

^^Jheku th izkFkhZ dks 10 ,dM+ dk dCtk xzke eoha dky esa o 10 ,dM+ ckyw ds {ks= dk dCtk ckxir esa fn;k x;k gSA izkFkhZ HkwLokfe;ksa dks eqvkotk nsdj nksuksa txg 20 ,dM+ {ks= esa dCtk ikdj [kuu dk dk;Z dj jgk gSA^^

"Sir, the applicant has been given the possession of 10 acres of land in village Mavin Kal and of 10 acres of sand area in Baghpat. The applicant, after having given compensation to the landowners, is carrying on mining work, getting possession of 20 acres of area at both the locations."

(English Translation by Court)

17. His further complaint was that some other persons were carrying on illegal mining which should be stopped. Thereafter, in his second representation dated 19.11.1991 he has said that report of Tehsildar, Baghpat is that possession of auctioned area was taken by plaintiff-appellant on 13.05.1991, but fact is that plaintiff with his own efforts paid compensation to land owners and with their consent has started mining work in Villages Mavi Kalan Khadar and Baghpat Khadar. In other six villages, no measurement has been done by Tehsildar and possession has not been given, hence mining work thereat cannot be started. He further said that measurement is necessary for the reason that without thereof, it cannot be estimated as to how much quantify of sand is sanctioned and permitted to be taken away. In his representation dated 12.03.1992, he requested defendants-respondents to cancel Asami lease granted to poor people and hand over possession of that land to plaintiff-appellant. Nothing has been shown to us that while granting mining permit, defendants-respondents would be liable to cancel lease granted to other persons on agricultural land for the purpose of cultivation etc. and, on the contrary, a cumulative reading of various provisions of Rules, 1963 shows that a particular area, when notified for grant of mining permit, it would mean that bidder would take the said area as it is and without any further change in its existing position. If certain constructions are existing thereon or crops etc. are standing or some persons in their capacity of being owner are carrying on agricultural activities or persons having lease for agricultural purposes or residential purposes etc. are exercising their rights in accordance therewith, those rights can be affected so as to make it convenient for successful bidder to carry on mining operations. It is for this reason that a provision has specifically been made permitting intending bidder to inspect proposed auctioned area to find out its existing conditions and thereafter with open eyes participate in auction having a fair idea about quantity of minor mineral which they can take away after auction, if their bid is accepted.

18. Moreover, possession of the purpose of mining lease does not mean that entire area is handed over to person who is granted mining lease so as to have exclusive ingress and egress over such land. The lease is only for the purpose of extracting minor minerals from auctioned land. It does not affect rights of owners or other lessees of such land with regard to cultivation, carrying on other agricultural activities or if there are existing construction etc. It should not cause any otherwise impact upon such other persons. If minor mineral is available on such land, person who is granted mining lease may excavate such mineral and transport the same, without affecting existing rights of other persons. If the minor mineral is not existing or available, he cannot claim an otherwise right over the land. This is also clear from liberties, powers, privileges, restriction and conditions to be exercised by such person, as provided in Rules 40 and 41 of Rules, 1963 which read as under:

"40. Liberties, Powers and privileges-

Subject to the restrictions and conditions mentioned in Rule 41, a person holding a mining lease under these rules may have the liberty, power and privilege-

(a) to enter upon the lands mentioned in the lease and to search for mine, bore dig, drill or win, work, dress, process, convert, carry away and dispose of the mineral for which the lease is held;

(b) to make in the said lands any pits, shafts, inclines, drifts, levels waterways or other works;

(c) to erect and construct on the lands and machinery, plant dressing, floors, furnances, brick-klins, workshops, store house and other buildings of the like nature;

(d) to make any roads and other ways over the said lands and to use and pass over the same;

(e) to quarry and get stone gravel and other building and road materials and clay and to use the same and to manufacture such clay into bricks or tiles and to use such bricks or tiles but not to sell any such material, bricks or tiles;

(f) to use a sufficient part of the surface of the said lands for the purpose of storing or depositing any produce of the mines or works carried on and any tools, equipment, earth and materials and substance dug or raised, and

(g) subject to the existing rights of others and save as provided in clause (d) of Rule 41, to clear, undergrowth and brush-wood and to fell, and utilize any trees or timber standing or found on the said lands, provided that the lessee may be asked by the District Officer to pay for any trees or timber felled and utilized by him at the rates to be determined, having regard to their market value by District Officer.

41. Restrictions and conditions as to exercise of the liberties, powers and privileges of lessee-

The holder of a lease shall exercise the liberties, powers and privileges mentioned in Rule 40 subject to the following restrictions and conditions:

(a) nothing shall be erected or set up and no surface operations shall be carried on-

(i) in or upon any public pleasure ground, burning or burial ground, or any place held (sacred) by any class of persons, or any house or village site, public road or other place which may be declared by the District Officer as public place, and

(ii) in such a manner as to injure or prejudicially affect any buildings, works, property or rights of other persons;

(b) no land shall be used for surface operations, which is already occupied by persons, other than the State Government for works purposes not included in the lease;

(c) no right of way, well or tank shall be interfered with;

(d) no entry shall be made on any reserved, protected or vested forest without the previous sanction in writing of the Divisional Forest Officer, nor shall any trees or timber be filled, cut or used without obtaining the sanction in writing of that Officer nor otherwise than in accordance with such conditions as the State Government may impose in this behalf;

(e) no mining operation shall be carried on at or to any point within a distance 50 metres from any railway line except with the previous written permission of the Railway Administration concerned, or from any reservoir, canal or other public works, such as public roads and buildings or inhabited site, except with the previous written permission of the District Officer or any other officer authorised by the State Government in this behalf and otherwise than in accordance with such instructions and conditions either general or special, which may be attached to such permission. The said distance of 50 metres shall be measured in the case of railway, reservoir, road or canal horizontally from the outer toe of the Bank or the outer edge of the cutting, as the case may be, and in case of a building horizontally from the plinth thereof, provided that the distance in the case of a village road shall be 10 metres from the outer edge of the cutting.

Explanation: For the purpose of this sub-rule, the expression 'public road', shall mean a road which has been constructed after being artificially surfaced as distinct from a track resulting from repeated use, and 'village road' will include any track shown in the revenue records as village road;

(f) the existing and future holders of Government lease or permit in respect of any land which is comprised in or adjoins or is reached by the land held by the leassee shall be allowed reasonable facilities of access thereto. In case any loss or damage is caused by such lease or permit-holders by exercise of this liberty, a fair compensation (as may be mutually agreed upon or in the event of disagreement as may be decided by the State Government) shall be payable therefore by such lease or permit-holder to the lessee;

(g) the lessee is bound to keep vigilance for not polluting the environment of the lease-hold area and nearby area in connection with mining operation and also maintain ecological balance of the area. If at any time it is found that the mining operation are leading to environmental pollution or imbalance of ecology, then after giving an opportunity of being heard, the lease may be prematurely terminated."

19. Paper No. 70-C, a letter sent by appellant to Collector on 06.04.1992, shows that actual claim made by appellant was that asami lease granted to poor persons for agricultural purposes should be cancelled and thereafter possession of such land should be given to plaintiff-appellant. This claim set up by appellant is clearly inconsistent with conditions, restrictions etc. imposed upon person granted mining rights, vide Rules 40 and 41 of Rules, 1963.

20. Moreover, various documents available on record also show that most of time some part of auctioned land due to diversion of river become part of State of Haryana or the area was submerged in or crops were standing thereon. This was also a part of existing condition of auctioned area. If some part of area was not capable of mining, plaintiff-appellant cannot absolve himself from liability of payment of bid amount for such reasons since he had opportunity to inspect auctioned area before auction and thereafter to participate therein. Auctioned area, therefore, was available to him in the condition as it was, with all existing advantages or disadvantages, as the case may be. Mere fact that plaintiff-appellant could not carry out mining operations on some part of auctioned area cannot justify his reluctance in payment of entire bid amount.

21. It is true that respondents could not show that a lease-deed, as contemplated under Rule 29, was executed in favour of plaintiff-appellant and to this extent, we find non compliance of Rule-29 but consequence provided therein for non execution of deed, that if there is a default on the part of bidder, authority may revoke order accepting bid and in that event security deposited by bidder shall be forfeited to State Government, has not been observed by defendants-respondents. The plaintiff was allowed to carry on mining immediately after auction and mining permission has been revoked when he failed to deposit last installment.

22. In other words, plaintiff was allowed mining operations on auctioned land without execution of lease-deed and for that reason alone, competent authority did not cancel auction. Non execution of lease-deed, therefore, in this case has not operated to the prejudice of plaintiff-appellant for the reason that purpose of lease was to allow highest bidder, whose bid has been accepted, to carry on mining operations, which in the case in hand has been permitted to plaintiff-appellant. The factum that plaintiff-appellant has carried out certain mining operations on the auctioned land is admitted. The lease, therefore, in fact, without execution of deed was acted upon. Hence plaintiff-appellant cannot wriggle out of his liability of payment of entire bid amount for the reasons that he has not suffered at all by non execution of lease-deed.

23. Therefore, we are of the view that despite non execution of lease-deed, as contemplated under rule 29, plaintiff-appellant cannot claim that he is not liable to pay entire bid amount when, as a matter of fact, he was given possession and allowed to carry on mining operation in the auctioned area.

24. All the points for determination, formulated above, are answered accordingly, i.e. against plaintiff-appellant.

25. No other point has been argued. We find no error, factual, legal or otherwise in the impugned judgment warranting interference.

26. Appeal lacks merits. Dismissed with cost.

27. Interim order, if any, stands vacated.

Dt. 15.09.2015

MVS Chauhan/PS