Rajasthan High Court - Jodhpur

Hari Ram Bishnoi vs State Of Rajasthan And Ors. ... on 7 December, 2023

Author: Nupur Bhati

Bench: Nupur Bhati

[2023:RJ-JD:42652]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                  S.B. Civil Writ Petition No. 2613/2018

Hari Ram Bishnoi S/o Shri Sohan Lal, B/c Bishnoi, R/o Village
Koshana, Tehsil Bhopalgarh, District Jodhpur
                                                                           ----Petitioner
                                        Versus
1.       State Of Rajasthan Through The Principal Secretary,
         Mines Department, Jaipur
2.       The      Additional       Director        Mines         Environment         And
         Development,            Directorate       Of      Mines          And     Geology
         Department, Government Of Rajasthan, Udaipur
3.       The     Assistant       Mining     Engineer,        Mines        And     Geology
         Department, Jodhpur Zone, Jodhpur
                                                                      ----Respondents


For Petitioner(s)            :     Mr. Baljinder Singh Sandhu
For Respondent(s)            :     Mr. Digvijay Singh Jasol



                 HON'BLE DR. JUSTICE NUPUR BHATI

Judgment

07/12/2023

The present writ petition has been preferred under Article

226 of the Constitution of India with the following prayers:-

a. Quashed the impugned order dated 27-09-2017 (Annex-3) passed by the Non-Petitioner No.2: and b. That the Non-Petitioner No.2 may be directed to consider the application of the Petitioner for condonation of delay on it's own merit and then decide the appeal in accordance with Law: and c. any other appropriate relief which this Hon'ble Court deem just and proper in the facts and circumstances of this case, may kindly be also granted in favour of the Petitioner: and d. award the cost of this writ petition to the Petitioner.

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Brief facts of the case are that a mining lease for mineral

lime stone was allotted in favour of the petitioner vide order No.

2914 dated 03.11.1995 in Mining Lease No. 1283/1995 situated

near village Ransi Gaon, Tehsil Bilara, District Jodhpur. The

petitioner fulfilled all the requisite conditions and started operating

the mining lease which was allotted for the period of 20 years. The

petitioner approached the concerned Officer of the Mining

Department for depositing the due amount in the month of

September, 2014 and came to know that on 09.11.1998, the

mining lease had been revoked on account of default on the part

of the petitioner in depositing the royalty. The petitioner being

aggrieved of the aforementioned order dated 09.11.1998

(Annexure-1), preferred an appeal before the Additional Director

(Mines), Mines and Geology Department, Jodhpur Zone, Jodhpur,

which was transferred to the Additional Director (Mines)

(Environment and Development), Directorate of Mines and

Geology Department, Government of Rajasthan, Udaipur. The said

appeal preferred by the petitioner was rejected on the ground that

it was time barred. The petitioner being aggrieved of the order

dated 27.09.2017 (Annexure-3), has preferred the present writ

petition.

Learned counsel for the petitioner places reliance upon the

order dated 06.11.2017 passed by this Court in S.B. Civil Writ

Petition No. 14717/2016 (M/s Sojat Lime Company Vs. State of

Rajasthan & Ors.), the relevant portion of the said order is

reproduced hereunder :-

"For proper adjudication of the matter, it would be appropriate to reproduce the Rule 18 (21) (a) of the

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Rules of Rajasthan Minor Mineral Concession Rules, 1986, which reads as under:

" 18(21) (a) : In case of any breach on the part of the lessee of any covenant or condition contained in the lease, the competent authority may determine the lease and take possession of the said premises and forfeit the security money or in the alternative may impose payment of a penalty not exceeding twice the amount of annual dead rent of the lease. Such auction shall not be taken unless the lessee has failed to remedy the breach after serving of 15 days notice."

A perusal of the said Rule shows that the respondents had directly cancelled the lease instead of adopting the alternative method of levying penalty to the extent of twice the amount of annual dead rent of the lease. This view is expressed by this Court in the case of M/s Neel Kanth Chemical Works, Jodhpur Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.1241/1980 decided on 10.10.1980, wherein the law with regard to cancellation of mining lease was considered and the order of cancellation of the lease deed was set aside by observing as under:

" After this second question would arise whether extreme penalty of determination of lease is necessary in the interest of justice or alternative penalty by imposing the amount not exceeding twice the amount of the annual dead rent of the lease, would meet the ends of justice. There should be application of mind on this aspect of the case also, and the impugned order or order of determination should show that the authority has applied its mind and come to the conclusion that because the lessee has failed to remedy the defects pointed out to the lessee within 15 days time allowed to him, and because the defect or contraventions of the clause are of such a nature that the alternative penalty requiring him to pay double the amount of dead rent, is not enough and the circumstances and the contraventions are so grave that it wants extreme penalty of determination of the lease and taking

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possession of the said premised, therefore, the lease is being determined."

Reply has been filed. In the reply, it is not denied that the petitioner eventually deposited a sum of Rs. 20,10,501/-. Though, the same was deposited after the passing of the impugned order dated 17.11.2016.

Thus, it appears that the respondents were in a hurry to cancel the lease deed. An opportunity should have been granted to the petitioner to pay the amount along with the penalty in terms of the Rule 18 (21) (a) of the Rules of Rajasthan Minor Mineral Concession Rules, 1986.

In view of the above, the result is that this writ

petition is accepted and the impugned order dated

17.11.2016 of cancellation of lease deed of the

petitioner is quashed. However, the petitioner shall be

allowed to proceed with the mining subject to his

deposit of the balance amount along with the penalty

etc. as calculated by the respondent-authority in terms

of the Rule 18 (21) (a) of the Rules of Rajasthan Minor

Mineral Concession Rules, 1986. The said amount shall

be determined within one month from today and the

petitioner shall deposit the said amount within one

month thereafter".

Learned counsel for the petitioner submits that the case in

hand is squarely covered with the aforequoted order passed in M/

s Sojat Lime Company (Supra), as the respondents vide order

dated 09.11.1998, cancelled the mining lease granted in favour of

the petitioner without affording the petitioner a reasonable

opportunity of hearing and in violation of the provisions as laid

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down in Rule 18(21)(a) of the Rajasthan Minor Mineral Concession

Rules, 1986 and the same is reproduced hereunder:-

" 18(21) (a) : In case of any breach on the part of the lessee of any covenant or condition contained in the lease, the competent authority may determine the lease and take possession of the said premises and forfeit the security money or in the alternative may impose payment of a penalty not exceeding twice the amount of annual dead rent of the lease. Such auction shall not be taken unless the lessee has failed to remedy the breach after serving of 15 days notice."

Learned counsel for the petitioner submits that in the stay

application, the details of the amount due to the respondents and

the amount paid by the petitioner has been mentioned and

learned counsel for the petitioner further fairly submits that the

outstanding amount due to the respondent was Rs. 83,500/- out

of which, an amount of Rs. 30,000/- has already been deposited

by the petitioner and the remaining amount due is to the tune of

Rs. 53,500/-.

Upon perusal of the reply of the stay application, it is

reflected that the respondents had not denied the said payment

made by the petitioner to the tune of Rs. 30,000/-.

A perusal of Rule 18(21)(a) reflects that the respondents

have cancelled the mining lease of the petitioner without invoking

Rule 18(21)(a) of the Rules of 1986.

Thus, in view of the submissions made and having gone

through the order dated 06.11.2017, passed by this Court in S.B.

Civil Writ Petition No. 14717/2016 (M/s Sojat Lime Company

Vs. State of Rajasthan & Ors.) and in the case of M/s Neel

Kanth Chemical Works, Jodhpur Vs. State of Rajasthan &

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Ors. (S.B. Civil Writ Petition No.1241/1980) decided on

10.10.1980 wherein, the law with regard to cancellation of mining

lease was considered and the order of cancellation of the lease

deed was set aside by observing as under :-

" After this second question would arise whether extreme penalty of determination of lease is necessary in the interest of justice or alternative penalty by imposing the amount not exceeding twice the amount of the annual dead rent of the lease, would meet the ends of justice. There should be application of mind on this aspect of the case also, and the impugned order or order of determination should show that the authority has applied its mind and come to the conclusion that because the lessee has failed to remedy the defects pointed out to the lessee within 15 days time allowed to him, and because the defect or contraventions of the clause are of such a nature that the alternative penalty requiring him to pay double the amount of dead rent, is not enough and the circumstances and the contraventions are so grave that it wants extreme penalty of determination of the lease and taking possession of the said premised, therefore, the lease is being determined."

In view of the above, the writ petition is allowed and the

impugned order dated 09.11.1998 (Annexure-1) and the order

dated 27.09.2017 (Annexure-3) passed by the Additional Director

(Mines) (Environment and Development), Directorate of Mines and

Geology Department, Udaipur is quashed and set aside. The

respondents are directed to restore the Mining Lease No.

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1283/1995 situated near village Ransi Gaon, Tehsil Bilara, District

Jodhpur in favour of the petitioner and the petitioner shall be

allowed to proceed with the mining, subject to his deposition of

the amount due to the respondents.

The respondents would be at liberty to impose penalty, if