ORDER Abhay M. Naik, J. This petition has been preferred for quashment of order dated Facts giving rise to the writ petition are that Collector, Distt. Hoshangabad vide notification issued in January, 1994 invited tenders for extraction of sand from the land comprised in Survey No. 137/1 in area 2.023 hectares situated at Babrighat, Honshangabad for a period of three years. Tender of the Petitioner being the highest was accepted and the contract agreement for trade quarry was executed by the Petitioner and the Respondents on 15th April. 1994 as contained in Annexure/P-1. The Incharge, Mining Officer directed the Mining Inspector vide his letter with endorsement No. 537 Kh. Ni. Li. 3/94 dated 19-4-1994 to hand over the possession of the subject mine to the Petitioner after due demarcation. He was further directed to submit the demarcation report and receipt of possession after handing over the possession to the Petitioner. This letter is on record as Annexure/P-2. Since, the area of mining lease was submerged in the water of river Narmada, the demarcation could not have been made as reported vide Annexure/P-3 dated 25-4-1994. A Panchanama to the said effect was also prepared on 23-4-1994. Thus, the Respondents were unable to hand over the possession of the subject quarry to the Petitioner. Consequently, on 19-5-1994 the Petitioner submitted a dispute before the Collector, Hoshangabad under Clause 29 of the agreement (Annexure/P-1) and prayed that in lieu of the subject quarry other land for extraction of sand may be provided to him. His this request was declined vide Annexure/P-5 dated 28th June, 1994. Petitioner preferred an appeal before the Court of Commissioner Hoshangabad which was registered as Case No. 6/appeal/93-94. The appeal was allowed on 17-2-1995 vide Annexure/P-6. Learned Commissioner found that the Petitioner as well as Respondents were at fault in the grant of such a mine. He further observed that in case, if, the Petitioner foregoes his claim relating to the period when the possession could not have been handed over, the prayer for grant of possession of another land may be considered. It was also observed in Annexure/P-6 (Commissioner's Order) that at a distance of about 150 metres another mine of the same nature was available as per the report dated 20-12-1994. Learned Commissioner directed for consideration of the Petitioner's prayer for allotment of another land for the same purpose after due demarcation. It was also observed in Annexure/P-6 (Commissioner's Order) that at a distance of about 150 metres another mine of the same nature was available as per the report dated 20-12-1994. Learned Commissioner directed for consideration of the Petitioner's prayer for allotment of another land for the same purpose after due demarcation. Pursuant to the aforesaid, the Petitioner approached the Collector, Hoshangabad and made a request that possession of alternative site for extraction of sand may be handed over to him. This is revealed in Annexure/P-7. Simultaneously, the Petitioner submitted an undertaking that he would not claim any relief in relation to the period when the possession could not have been handed over to him. Copy of the agreement-cum-undertaking is on record along with Annexure/P-7. A spot inspection was also made on 6-7-1995 of the land proposed to be given to the Petitioner in lieu of the quarry allotted to him earlier. Petitioner vide his application dated 29-2-1996 again made a prayer for handing over the possession of the alternative site. This was not accepted, so, the Petitioner vide Annexure/P-10 asked for refund of security amount and the amount of first instalment which was already deposited. Application with identical prayer was further submitted vide Annexure/P-11 but of no avail. On the contrary, Addl. Tehsildar, Recovery Tahsil. Indore issued notice of demand dated 19-7-2001 for a sum of Rs. 4,56,010/-. Petitioner again submitted an application under Clause 29 of the agreement with a prayer to drop the proceedings for recovery on the ground that the possession of the subject mine was not handed over to him and the alternative site was also not provided. This application was rejected on 22-10-2001 by the Collector, Hoshangabad on the ground that he had ceased to have jurisdiction on account of issuance of Revenue Recovery Certificate on 27-4-2001. Appeal preferred against the same has also been dismissed by the Addl. Commissioner, Hoshangabad Division vide order dated 6-5-2002 contained in Annexure/P-16. In the light of the aforesaid facts and circumstances, the following reliefs have been claimed by the Petitioner: (i) A writ in the nature of certiorari may please be issued for quashing the orders dated 22-10-2001 (Annexure/P-14) and orders dated 6-5-2002 (Annexure/P-16) passed by Respondent No. 3 and 2, respectively. (ii) A writ in the nature of certiorari may please be further issued for quashing the R.R.C. dated 19-7-2001 (Annexure/P-12) issued by Addl. (ii) A writ in the nature of certiorari may please be further issued for quashing the R.R.C. dated 19-7-2001 (Annexure/P-12) issued by Addl. Tehsildar, Indore (Respondent No. 5). (iii) A writ in the nature of mandamus may be issued commanding the Respondents to refund a sum of Rs. 8.96,000/-, along with reasonable interest from April, 1994 till its payment to the Petitioner with a further direction to Respondent No. 1 to recover the interest part from the erring officers. (iv) Any other writ, direction or order suitable in the circumstances of the case may please be issued/passed. Respondents submitted their return. They mainly contended that the Petitioner was himself required to ensure about the possession of the subject mine and cannot be permitted to raise objection in this regard at later stages. Referring further to Clause 9 and 11 of Form-1 placed on record with Annexure/R-4, it has been contended that once the bid is accepted, the bidder is required to execute another agreement in Form-3 and 4 and take possession of the subject mine. On account of failure on the part of the Petitioner, the security amount deposited by him was rightly forfeited. It is further contended that the Petitioner is liable to make the payment of the entire sum as per the agreement and there being no provision for exchange of lease land, the Petitioner cannot be provided another land for mining purposes. Moreover, the Petitioner has participated in the auction and having executed the agreement in favour of the Petitioner, he is bound by the terms of the agreement. Thus, the Petitioner having participated in the auction proceedings with due knowledge, he is estopped from challenging the alleged demand. It has been specifically contended that neither under the law nor under the instructions another land in exchange of the initial lease land can be given. Accordingly, it has been prayed that the writ petition may be dismissed. Considered the submissions and perused the record. Shri P.R. Bhave, learned senior counsel contended that the Petitioner was not at fault at any point of time, since, the area of mining lease was submerged in the water of river Narmada and the Respondents were unable to handover the possession of the subject quarry to the Petitioner for want of demarcation. Considered the submissions and perused the record. Shri P.R. Bhave, learned senior counsel contended that the Petitioner was not at fault at any point of time, since, the area of mining lease was submerged in the water of river Narmada and the Respondents were unable to handover the possession of the subject quarry to the Petitioner for want of demarcation. A dispute was also timely raised by the Petitioner on 19-5-1994 before Collector, Hoshangabad which was ultimately decided in his favour in appeal on 17-2-1995 by the Commissioner, Hoshangabad Division, vide Annexure/P-6 who observed that in case, if, the Petitioner foregoes his claim with respect to the period when possession could not have been handed over, the prayer for grant of possession of another land may be considered. An undertaking pursuant to Annexure/P-6 was submitted by the Petitioner vide Annexure/P-7. Another mine of the same nature was found to be available at a distance of about 150 metres as revealed in Annexure/P-6. Since, it was not accepted by the Respondents, a refund was demanded of the security amount by the Petitioner vide Annexure/P-10. His this request was not accepted and. on the contrary, a notice of demand dated 19-7-2001 for a sum of Rs. 4,56,010/- was served upon the Petitioner. Shri Bhave, learned senior counsel contended that the demand made from the Petitioner is totally illegal and is liable to be quashed. This apart, the Petitioner is also entitled to the refund of security amount and the amount of instalment deposited by him. Shri Vinod Mehta, learned Government Advocate contended that the Petitioner was obliged as per the terms and conditions to ensure about the position of the subject mine and is liable to make payment as per the agreed terms. Thus, according to the learned Government Advocate the Petitioner is not entitled to any kind of refund and on the contrary, he cannot legally avoid the recovery sought to be made vide notice of demand dated 19-7-2001. Reliance has been placed by the learned Government Advocate on the decision of this Court in the case of Santosh Kumar Chopda v. State of M.P. and others, reported as 2002 (4) MPLJ 440 : 2003 (1) MPHT 343 . Reliance has been placed by the learned Government Advocate on the decision of this Court in the case of Santosh Kumar Chopda v. State of M.P. and others, reported as 2002 (4) MPLJ 440 : 2003 (1) MPHT 343 . This Court in the case of Santosh Kumar (supra) was dealing with the case of lifting of Tendu leaves which involved a question whether the Petitioner had committed a breach of tender notice or not and in case, the Petitioner had committed a breach of the same, whether he was liable to make good the loss caused to the State Government. This Court found that it was the duty of the Petitioner to have inspected Tendu leaves before offering the bid for whatever value they were there. Accordingly, the Petitioner in Santosh Kumar's case (supra) was found careless in not inspecting the Tendu leaves before offering his bid. Present writ petition relates to a mine of sand. Tenders were invited in January. 1994. Tender of the Petitioner being the highest was accepted and an agreement for the trade quarry was executed on 15th April, 1994. There is no iota on record to infer that at the time of offering of the tenders the subject mine was submerged in water of river Narmada and there was hardly any occasion for the Petitioner to refrain from offering the tender. Petitioner's tender for extraction of sand from the mine comprised the Survey No. 137/1 in area 2.023 hectares was accepted being the highest and the contract agreement for trade quarry was executed on 15th April, 1994. The Mining Inspector was directed on 19-4-1994 to hand over the possession of the subject mine to the Petitioner after due demarcation vide Annexure/P-2. The Mining Inspector expressed his inability since, the area of mine was submerged in river Narmada. This is revealed in the Panchnama dated 23-4-1994 and the report of the Mining Inspector dated 25-4-1994 contained in Annexure/P-3. Thus, the Respondents were unable to handover the possession of the subject quarry to the Petitioner and it was impossible for the Petitioner to obtain the possession. A dispute was also submitted on 19-5-1994 by the Petitioner informing the Collector, Hoshangabad under Clause 29 of the agreement Annexupre/P-1 that it was impossible to obtain possession of the subject land for the aforesaid reason. A dispute was also submitted on 19-5-1994 by the Petitioner informing the Collector, Hoshangabad under Clause 29 of the agreement Annexupre/P-1 that it was impossible to obtain possession of the subject land for the aforesaid reason. Shri Mehta, learned Government Advocate referred to Clause 3 of the contract agreement contained in Annexure/R-3 which makes it mandatory for the contractor to occupy and take possession of the land pursuant to the contract agreement. He further referred to clauses 5, 9 and 11 of auction notice contained in Annexure/R-4 which are to the following effect: Clause-5: The very intending tenderer shall satisfy himself fully about the possession of the quarry and availability of the mineral in the mine and no complaint would be entertained after offering of the tender. Clause-9: The successful bidder will not be permitted to withdraw the offer within 60 days from the date of auction. In case, if. the offer is withdrawn, earnest money and the security amount would be forfeited. However, if the mine is not allotted within 60 days from the date of auction, the tenderer shall be free to withdraw his offer and earnest money and the security amount would be refunded to him. Clause-11: After receipt of information about acceptance of the tender, the successful tenderer shall have to execute an agreement within a period of 30 days and shall have to obtain the possession. In case of failure, the earnest money and security amount would be liable to be forfeited and the mine would be re-auctioned. Any loss occasioned to the State Government in the auction will be recovered from the earlier successful bidder as arrears of rent revenue. In view of the aforesaid, it is contended by Shri Mehta, learned Government Advocate that the Petitioner has no right to claim refund or immunity from the recovery. After considering the submissions, I am of the considered opinion that the Petitioner after acceptance of his bid did execute the contract agreement in accordance with clause-11. As regards possession, it is seen that the same was to be handed over after due demarcation by the Mining Inspector. It was so directed to him by the In-charge, Mining Officer vide letter dated 19-4-1994. The Mining Inspector failed to make demarcation because the area of mining lease was submerged in the water of river Narmada. As regards possession, it is seen that the same was to be handed over after due demarcation by the Mining Inspector. It was so directed to him by the In-charge, Mining Officer vide letter dated 19-4-1994. The Mining Inspector failed to make demarcation because the area of mining lease was submerged in the water of river Narmada. Thus, it was impossible for the Mining Inspector to make the demarcation and deliver the possession in pursuance of the contract agreement. This Court has to bear in mind a well settled maxim "lex non cogit ad impossibilia- The law does not compel a man to do that which he cannot possibly perform. The law itself and the administration of it said Sir W. Scott, with reference to an alleged infraction of the revenue laws, must yield to that to which everything must bend, to necessity; the law, it its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of laws must adopt that general exception in the consideration of all particular cases." The maxim has been approved by the Hon'ble Supreme Court of India in various cases and was recently applied in the case of Mohammed Gazi Vs. State of M.P. and Others, . Case of Mohammed Gazi (supra), arose from Division Bench decision of this Court in LPA No. 270 of 1998 wherein a deduction of a sum of Rs. 30,000/- from the security amount deposited by the Petitioner was directed. Hon'ble Apex Court while reversing the decision of the Division Bench found that it was impossible for the Petitioner/Appellant to perform his part. It has been held that a person cannot be penalised for no fault of his merely by resorting to equity clause in favour of the Respondent State particularly when such person is found to have not been benefited. In the present case, the Petitioner, obviously was not put into possession of the subject quarry by the Respondents for want of demarcation, since, the subject mine was submerged in water. It was absolutely impossible to obtain the possession. This fact was immediately brought into notice by the Petitioner by submitting a dispute before the Collector. Hoshangabad on 19-5-1994. In the present case, the Petitioner, obviously was not put into possession of the subject quarry by the Respondents for want of demarcation, since, the subject mine was submerged in water. It was absolutely impossible to obtain the possession. This fact was immediately brought into notice by the Petitioner by submitting a dispute before the Collector. Hoshangabad on 19-5-1994. Moreover, his this plea was accepted by the Commissioner, Hoshangabad vide Annexure/P6 whereby it was directed that in case, if, the Petitioner foregoes his claim in respect of the period when the possession could not have been handed over, the prayer for grant of another land may be considered. The Petitioner having submitted an undertaking vide Annexure/P-7 in pursuance of Annexure/P-6 cannot be blamed any more. Thus, the maxim "lex non cogit ad impossibilia" applies to the facts and circumstances of the present case with full force and the clauses relied on by the learned Government Advocate cannot be invoked in the present case so as to deprive the Petitioner of earnest money and security amount. Since, the Respondents failed to deliver possession to the Petitioner in accordance with the contract agreement contained in Annexure/P-1, and the Petitioner did not derive any benefit from the contract agreement for no fault of his. the recovery vide Annexure/P-12 cannot be made from him. Such a demand from Petitioner is unreasonable, improper and consequently illegal in the facts and circumstances of the case. In the result, the writ petition is hereby allowed and the R.R.C. dated 19-7-2001 (Annexure/P-12), order dated 22-10-2001 (Annexure/P-14) and order dated 6-5-2002 (Annexure/P16) are hereby quashed. The Respondents are directed to refund the earnest money and security amount and the amount deposited by the Petitioner by way of instalment to the Petitioner within a period of three months. Since, the Respondents have failed to deliver possession in the pursuance to the contract agreement, right from the beginning and yet have retained the money of the Petitioner, simple interest @6% per annum would be payable to the Petitioner on the amount so retained until date of actual payment. Respondents would also be liable to pay Rs. 5,000/- towards the cost of the writ petition, if already certified. Petition allowed Final Result : Allowed