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Madhya Pradesh High Court · body

2013 DIGILAW 813 (MP)

Virendra Kumar Richhariya v. State of M. P.

2013-07-16

A.K.Shrivastava

body2013
ORDER 1. By this petition under Article 226/227 of the Constitution of India, the petitioner has sought the following reliefs:- I. Hon’ble Court may kindly be pleased to call for othe relevant records from the respondents No.3, 4 and 5 regarding the Stop Dam Projects of village Lugasi, Gursari and Khurda. II. The respondent be commanded to pay to the petitioner fair market price of 1562.97 cubic meters of sand lifted by them from the quarry leased out in favour of the petitioner which comes to RS.1,56,300.00. III. The respondent No.6 be restrained from lifting any sand from the leased quarry vide agreement (Annexure-P-1) without paying due fair market price and obtaining receipt from the petitioner. IV. That departmental and criminal proceedings be directed to be instituted against the respondent No.6 for his illegal act of lifting sand without payment of fair market price. V. Any other writ/order/direction which this Hon’ble Court deems fit in the facts and circumstances of the case may kindly be issued. VI. Costs of the petition may also be awarded. 2. The unfolded facts on bare perusal of the petition as well as return filed by the respondents are as follows:- (i) The petitioner entered into an agreement on 4.6.2005 (Annexure-P/1) with the State Government through Collector regarding the grant of sand quarry, the description whereof has been mentioned in para 5.1 of the petition; (ii) as per law and rules existing no person can lift any sand from such quarry without paying fair market price. (iii) the 6th respondent is Incharge of three Stop Dam Projects being undertaken at Village Lugasi, Gursari and Khurda. These projects involve approximate cost of Rs.9 lac, Rs.22.57 lac and Rs.15.10 lac respectively; and (iv) the 6th respondent, who was serving on the post of Sub Engineer, Rural Engineering Service at Naugaon uplifted sand 436.65 cubic meters for Stop Dam Lugasi, 567.87 cubic meters for Stop Dam Khurda and 558.45 cubic meters for Stop Dam Gursari (See Annexure-R/2 filed along with the return). 3. The contention of learned counsel for the petitioner is that the respondents are having right of pre-emption to uplift the sand which has been excavated by the petitioner from the quarry lease but they are required to pay fair market price. According to petitioner, the fair market price @100/- per cubic meter comes to Rs.1,56,300/-. 3. The contention of learned counsel for the petitioner is that the respondents are having right of pre-emption to uplift the sand which has been excavated by the petitioner from the quarry lease but they are required to pay fair market price. According to petitioner, the fair market price @100/- per cubic meter comes to Rs.1,56,300/-. In this regard there is pleading of the petitioner in para 6.4 of his memorandum of writ petition. This fact was added by way of amendment. However, there is no denial in the return and no additional return has been filed nor any amendment in the original return has been made controverting this figure. Hence, according to me, it shall be deemed that fair price of the sand was Rs.1,56,300/- and therefore it has been prayed that respondents may be directed to pay this amount. 4. On the other hand, Shri Vivek Agrawal, learned Government Advocate submitted that in terms of Rule 3(iii) of the M.P. Minor Mineral Rules, 1996 (in short “Minor Mineral Rules”), the exemption is given to utilize the minor mineral removed from the Government land for public works by Gram Panchayats, Janpad Panchayats and Zila Panchayats for work undertaken by respective Panchayats but the department shall require to deposit royalty under the revenue receipt as prescribed under sub-rule (iii) of Rule 10 and therefore the petitioner is not entitled for the fair market price of the sand which has been uplifted by the respondents for the aforesaid purposes. Hence, it has been submitted by learned Government Advocate that this petition be dismissed. 5. Having heard learned counsel for the parties, I am of the view that this petition deserves to be allowed. 6. Looking to the aforesaid factual position, the only question which crops up for determination is as to whether the petitioner is entitled for royalty in terms of Rule 3(iii) of the Minor Mineral Rules or the fair market price. True, sub-rule (iii) empowers to pay royalty of the minor minerals removed from the Government land for public works for Gram Panchayat, Janpad Pachayat, Zila Panchayat, etc. True, sub-rule (iii) empowers to pay royalty of the minor minerals removed from the Government land for public works for Gram Panchayat, Janpad Pachayat, Zila Panchayat, etc. but if this Rule is kept in juxtaposition and read conjointly with Rule 30(25) it would reveal that the State Government is having all times the right of pre-emption of the minerals won from the land in respect of which the lease has been granted, provided that a fair market price prevailing at the time of pre-emption shall be paid to the lessee for all such minerals. There is no obstante clause in order to debar lessee to claim only royalty and therefore according to me, the State Government can uplift the excavated material sand, etc. since having right of pre-emption, but, it had to pay fair market price. Looking to the excavated material which has been uplifted by the respondent No. 6 as mentioned in Annexure-R/2 filed along with the return and particularly when it has not been denied in the return that it would fetch a fair price of Rs.1,56,300/- I am of the view that this would be the fair market price of the sand which has been uplifted by the respondent No.6. The petitioner is entitled for this amount. Let it be paid by the State Government to the petitioner within a period of two months from the date of submitting a certified copy of this order by the petitioner to respondent No.2. It is further made clear that if the amount is not paid within the stipulated time, it shall carry simple interest @6% per annum from the date of passing of this order. 7. Accordingly, this petition is allowed and disposed of. No costs.