JUDGMENT 1. - The present case reflects total callousness and lack of coordination between the two departments of the State Government and the petitioner is being harassed for their in action. This litigation could have been avoided if the Mining and Public Works Department had acted as per the directions given by the State Government in order dated 26.6.1967 (Annexure 1) in the appeal filed by the petitioner against the cancellation of mining lease vide order dated 10.6.1966. In order to appreciate the real controversy between the parties, the necessary and undisputed facts may be given as under. 2. The petitioner was granted a mining lease at Dev-road hills, Tehsil Chirawa, District Jhunjhunu for excavation of minor mineral and stone grit (RODI-PATHAR) for a period of five years from 3.8.1964 to 2.8.1969. The petitioner was required to pay yearly dead-rent @ Rs. 6,500/- in four quarterly instalments in lieu of the royalty and in case the royalty was in excess he was required to pay the royalty amount. The lease was cancelled on 10.6.1966 by the Director of Mines and Geological Department on the ground of non-payment of dead-rent, though in fact the amount outstanding was deposited on 9.9.1966. But this fact was not brought to the notice of the Director of Mines. If this fact had been brought to his notice by the Mining Department the petitioner would have been liable only to pay a penalty amount for late payment of instalments. 3. During the lease period a road of strategy importance was being constructed from Bikaner-Delhi via Sardarshahar and Rajgarh by Public Works Department through the contractors. Huge quantity of stone-ballast and grit was required for the construction of the road for about 50 miles and the quarry was the only place available for the material for the use of the contractors of the Public Works Department for construction of the road. It appears that in the aforesaid quarry under the orders of Executive Engineer,, Public Works Department (B & R) Project Rajgarh vide his letter dated 10.12.1965 plots were demarcated on 19.12.1965 and possession was handed over to the Contractors of the Public Works Department. 4. In the background of the above facts the petitioner filed an appeal to the State Government-Secretary to the Government, Industries (B) Department. 4. In the background of the above facts the petitioner filed an appeal to the State Government-Secretary to the Government, Industries (B) Department. The appeal was allowed vide order dated 26.6.1967 (Annexure 1) in the following terms: "It is a fact, the P.W.D, is constructing a road from Bikaner to Delhi via Sardar Shahar and Rajgarh which is of strategic importance. Huge quantity of stone ballast and grit is required for this material for about 50 miles has to be taken from the quarry of the appellants as no free land was available for the use of the contractors of the P.W.D. The appellant was called by the Mining Engineer, Jaipur. He said that he had no objection to allow the P.W.D. contractors to work in his lease area but that the net profit made by the P.W.D. contractors after deducting the labour charges and royalty should be given to him because the work of supply of ballast is not being made departmentally, but by the P.W.D. contractors. It is correct that the appellant did not pay the Govt. dues within 30 days notice period but at the same time it is also correct that he paid the Govt. dues before the cancellation order. Had the Mining Engineer, Jaipur informed the Directorate in time, the lease could not have been cancelled but only a penalty as usual would have been imposed on the party by the Directorate for late payment of Government dues. It is learnt from the Mining Engineer, Jaipur that the P.W.D. contractors took permit for excavation of ballast from the Office of the Mining Engineer, Jaipur only once or twice on payment of only royalty which means that the Mines Department has been put to a great loss of revenue which could have accrued in the form of excess royalty had the area remained with the contractor of the Mines Department. In other words, the P.W.D. contractors are making profit at the cost of the Mining Department. In view of these reasons Government is pleased to restore the lease of the party with a penalty of 10% of the dues outstanding against him with the condition that he will pay dead rent for the intervening period although he has not worked the mines during this period and also allow the Public Works Department contractors, to work the quarry. Royalty at the prescribed rate on the material taken away by the P.W.D. Contractors will be deducted from their bills by the Officers of P.W.D. and credited to the Mining Department. After deducting the royalty and the amount paid to the labour, the net profit will be distributed between the contractor of the Mines Department and that of the P.W.D. in the ratio of 75 : 25 or in such ratio as may be fixed by the Mining Engineer, Jaipur and the Executive Engineer concerned jointly. The contractor of the Mines Department will be bound by the terms and conditions of the lease agreement, before handing over possession of the area to the appellant, undertaking in writing to abide by all the conditions mentioned above, should be taken form him by the Mining Engineer, Jaipur." 5. From the above order these facts are borne out: (1) No dues were outstanding against the petitioner when his lease was cancelled and if this fact has been brought to the notice of the Director in time by the Mining Engineer, Jaipur, the lease could not have been cancelled and a penalty as usual of late payment could be imposed on the petitioner; (2) On the intervention of the Mining Engineer, Jaipur, the petitioner had allowed P.W.D. contractors to work in the lease area on the condition that after deducting the labour charges and royalty, the remaining net profit shall be paid to him as the supply of ballast was not being made Departmentally to the P.W.D. contractors. (3) The lease was restored to the petitioner on the following conditions: (i) he shall allow the P.W.D. contractors to work the quarry. Royalty at the prescribed rate on the material taken by the P.W.D. contractors will be deducted from their bills by the officers of the P.W.D. and credited to the Mining Department. After deducting the royalty and the amount paid to the labour the net profit will be distributed between the contractor of the Mines Department and that of the P.W.D. in the ratio of 75 : 25 or in such ratio as my be fixed by the Mining Engineer and the Executive Engineer concerned jointly. (ii) he will pay penalty of 10% of the dues outstanding against him and will also pay deadrent for the intervening period. 6. (ii) he will pay penalty of 10% of the dues outstanding against him and will also pay deadrent for the intervening period. 6. The aforesaid order in appeal was not challenged by any party and it was a final document between the parties regard to the terms and conditions detailed out in the said order. This order clearly mentioned that the petitioner was bound to allow the P.W.D. contractors to work the quarry and the officers of the P.W.D. were bound down to deduct the cost of the material excavated from his leased area and out of the said amount royalty at the prescribed rate was to be credited to the Mining Department and further after deducting the amount of labour the net profit was to be shared in the ratio of 75 : 25 between the petitioner (Mining Contractor) and the P.W.D. contractors. As per the aforesaid order this was to be done by the two departments of the State Government. Unfortunately it has not been done vide order (Annexure 9) the petitioner was asked to deposit Rs. 36,098.52. The break up of the aforesaid amount is a under : (i) Balance of dead rent between 3.8.1964 to 23.1.1971 Rs. 29,064.51 (ii) Excess royalty charged from Y.W.D. contractors. Rs. 6,871.51 (iii) Penalty on the outstanding amount @ 10% Rs. 162.50 7. The petitioner made several representations stating therein that he was not liable for the aforesaid amount. His contention was that upto 2.11.1966 he had paid the deadrent and that he remained out of possession of the aforesaid quarry from 10.6.1966 to 17.1.1969. On 18.1.1969, though, he was given possession in papers but actually the possession was of the trespassers and they were not removed by the department and as per the condition of the appellate order in fact he was entitled to get the amount of profit. Ultimately, the Assistant Mining Engineer, Neem-ka-thana made a demand of Rs. 36,098,52 vide his letter dated 9.12.1988 (Annexure 11) and in pursuance to an auction notice of the same day (Annexure 12), the properties of the petitioner were attached to be put for auction for the recovery of the amount. Hence, the petitioner filed the writ petition. 8. Ultimately, the Assistant Mining Engineer, Neem-ka-thana made a demand of Rs. 36,098,52 vide his letter dated 9.12.1988 (Annexure 11) and in pursuance to an auction notice of the same day (Annexure 12), the properties of the petitioner were attached to be put for auction for the recovery of the amount. Hence, the petitioner filed the writ petition. 8. It was contended by the learned counsel for the petitioner that no amount is due against the petitioner and in fact he has to be paid amount of profits as per order dated 26.6.1967 (Annexure 1) passed by the State Government. Learned counsel contended that as per order the Mining Department, P.W.D. and the petitioner were bound down to allow P.W.D. contractors to excavate the quarry on the condition that the P.W.D. will deduct the cost of ballast and grit from the running bills of the contractors as per the quantity taken away by them and out of that amount the royalty amount was to be credited to the Mining Department. Then after deducting the amount of labour charges, from the net profit 75% amount was to be paid to the petitioner and this was not done. It was also contended by the learned counsel for the petitioner that admittedly from 10.6.1966 to 17.1.1969 the petitioner was not in possession of the quarry and he was only given paper possession on 17.1.1969 while trespassers were holding till the possession is said to have been taken by the department on 23.1.1971. Learned counsel appearing for the Mining Department did not dispute the fact that the petitioner was out of possession of the quarry from 10.6.1966 to 17.1.1969 but for the remaining period i.e. 18.1.1969 to 23.1.1971 his contention was that the petitioner was in possession. It was also not disputed before me that the petitioner has not been paid the amount of profit as per the appellate order but according to him the liability to making payment of the dead-rent was fixed in the order and the petitioner was liable to pay the amount. 9. I have given may careful consideration to the above submissions. As stated earlier some facts are not in dispute. The petitioner was granted mining lease from 3.8.1964 to 2.8.1969. The lease was cancelled on 10.6.1966 on the ground of outstanding dues but in fact no dues were outstanding. The lease was restored on 26.6.1967 on certain conditions. 9. I have given may careful consideration to the above submissions. As stated earlier some facts are not in dispute. The petitioner was granted mining lease from 3.8.1964 to 2.8.1969. The lease was cancelled on 10.6.1966 on the ground of outstanding dues but in fact no dues were outstanding. The lease was restored on 26.6.1967 on certain conditions. The petitioner was to be put in possession of the quarry immediately after the order and the petitioner was also liable to pay the penalty for late payment and also the unpaid deadrent between the intervening period upto 26.6.1967. Another important condition was that out of the bills of P.W.D. contractors the cost of the ballast and grit taken out by them from the quarry of the petitioner was to be deducted by P.W.D. Out of that amount the royalty was to be credited to the Mining Department and from the balance amount, after deducting the amount of labour charges, the net profit was to be shared by the mining contractor (petitioner) and the P.W.D. contractors in the ratio of 75 : 25. It is also not in dispute that the petitioner was not restored possession of the quarry after the order of the State Government in appeal admittedly upto 17.1.1969 though there is dispute for the remaining period from 18.1.1969 to 23.1.1971. Form the letter dated 12.2.1971 by Senior Mining Foreman to Mining Engineer, Jaipur which has been referred in para 12 of the petition it is further clear that the petitioner did not make any use of the quarry upto 23.1.1971 when the possession was again taken by the department and that the persons of the area unauthorisedly worked in the quarry. It may be stated here that contents of para 12 were admitted by the non-petitioner in their reply. In the background of the aforesaid undisputed facts the question is whether the demand raised by the Mining Department is justified. The answer is quite simple 'no'. It may be stated here that contents of para 12 were admitted by the non-petitioner in their reply. In the background of the aforesaid undisputed facts the question is whether the demand raised by the Mining Department is justified. The answer is quite simple 'no'. It is really surprising, that the petitioner was forced to allow P.W.D. contractors to excavate the quarry and take away ballast and grit for their use for construction of Bikaner-Delhi road and intervention of the Mining Department and a duty was cast on the concerned department by the appellate order dated 26.6.1967 (Annexure 1) to deduct the cost of the ballast and grit out of the running bills of P.W.D. contractors and out of the said amount royalty was to be credited to the Mining Department. From the balance amount after deduction of the amount of labour charges, the petitioner was entitled to get 75% as net profit. If both the departments have failed to perform their duty and obligation, the petitioner cannot be held liable to make the payment of the deadrent. The argument of Mr. Dhankar has force that in fact the petitioner has to be paid the amount of profit as per the appellate order and for the royalty amount he cannot be liable and it was to be recovered by the Mining Department from P.W.D. contractors out of their bills. It also appears from the material on record that from the bills of P.W.D. contractors the amount of cost of ballast and grit has been deducted by the P. W.D. but curiously even then the petitioner has not been paid his profit and the Mining Department instead claiming from P.W.D. is claiming deadrent from the petitioner. The liability of the petitioner can be fixed only after the terms and conditions of the appellate order is carried out and given effect and not before that. Further, admittedly the possession was not handed over to the petitioner after the appellate order. As per the department he was given possession on 17.1.1969 i.e. after 18 months of the said order, though as per the petitioner he never got actual possession and the possession was in papers only. Further, admittedly the possession was not handed over to the petitioner after the appellate order. As per the department he was given possession on 17.1.1969 i.e. after 18 months of the said order, though as per the petitioner he never got actual possession and the possession was in papers only. As stated earlier, from the averments made in para Nfo.12, in which there is a reference of letter pointing out that the petitioner did not carry any work in the quarry upto 23.9.1971 and the persons of the locality unauthorisedly continued to have the possession of the quarry. Therefore, I am of the confirmed view that from 26.6.1967 (order in appeal) till 23.1.1971 the petitioner remained out of possession of the quarry and as such he cannot be held liable for payment of any deadrent or royalty. It is also not in dispute that upto 2.11.1966 the amount of dead rent has been paid by the petitioner and from 2.11.1966 to 26.6.1967, though his liability for the deadrent exists but at the same time he is also entitled to get his profit in terms of the order dated 26.6.1967. Till the entire exercise is made by the department concerned in relation to the ballast and grit taken away by the P.W.D. contractors from the quarry of the petitioner and the profit of the petitioner is determined in accordance with the order dated 26.6.1969 (Annexure 1) and royalty amount is paid to the Mining Department no liability can be fastened on the petitioner for any amount. The liability of payment of royalty amount as per the order dated 26.6.1967 during the relevant period was on P.W.D. from the cost deducted from the bills of P.W.D. contractors. As the Mining Department itself was a party to force the petitioner to allow P.W.D. contractors to take ballast and grit from the quarry after excavating from it and the State Government in appeal passed the order, taking into consideration every aspect of the matter, the Mining Department cannot be permitted to fall back and demand the amount of deadrent/royalty from the petitioner instead of from P.W.D. or its contractors. 10. Thus, the net result of the above discussion is that the demand in question raised against the petitioner is wholly unjustified. 10. Thus, the net result of the above discussion is that the demand in question raised against the petitioner is wholly unjustified. The appellate order dated 26.6.1967 should be given full effect by the Mining Department as well as P.W.D. No dead-rent can be claimed from the petitioner even from 26.6.1967 to 23.1.1971 also as he was never put in actual possession of the quarry. For the deadrent from 2.11.1966 to 26.6.1967, after giving effect to the order dated 26.6.1967 (Annexure 1), the concerned department can be fix liability afresh if any amount is still found due against the petitioner. The share of the petitioner in net profit as per the aforesaid order should also be determined and if the petitioner is found to be entitled to get any amount, the same be paid to him. The petitioner shall also be entitled to get the costs of this petition which is quantified Rs. 2,000/-. 11. The petition is allowed as stated above.Petition allowed with costs. *******