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Madhya Pradesh High Court · body

2015 DIGILAW 654 (MP)

Ramswaroop Chaturvedi v. State of M. P.

2015-06-26

A.M.KHANWILKAR, K.K.TRIVEDI

body2015
ORDER 1. Heard counsel for the parties on admission. 2. Two substantive reliefs have been claimed in this petition. The first relief is to direct the Collector to allow the petitioner to enjoy full tenure of 2 years of sand mining and to extend the period of lease agreement till 1.2.2017. The second relief is to quash the order dated 30.3.2015 (Annexure P-14) and to direct the respondents to refund the amount deposited by the petitioner in compliance of the same. 3. The petitioner had participated in the auction process, which was commenced on the basis of auction notice dated 21.2.2013. The auction notice clearly indicated that the period during which participants would be entitled to avail of sand mining permission, will be till 31.3.2015. No doubt, the petitioner was the highest bidder and was, therefore, entitled for grant of trade quarry. The petitioner, however, was unable to execute the agreement till 2.2.2015 on account of circumstances, which, according to the petitioner, were beyond his control. 4. It is not in dispute that the agreement as executed by the petitioner is for the remainder auction period upto 31.3.2015. The petitioner, however, whilst executing the agreement registered protest and executed the agreement without prejudice on the assertion that the petitioner was entitled for minimum 2 years of tenure and not the remainder tenure upto 31.3.2015. The authorities have not acceded to that request. As a result, the petitioner has approached this Court for direction against the Collector to allow the petitioner to avail of full tenure of 2 years of sand mining and therefore to extend lease agreement till 1.2.2017. 5. According to the petitioner, as per the mandate of rule 7, the lease agreement for grant of trade quarry cannot be for less than 2 years’ tenure from the date of taking over possession. For that the petitioner is relying on rule 7 of the M.P. Minor Mineral Rules, 1996 (for brevity “Rules of 1996”) and drawing analogy from rule 22 of the Rules of 1996. Rule 7 of the Rules of 1996 reads thus :- “7. For that the petitioner is relying on rule 7 of the M.P. Minor Mineral Rules, 1996 (for brevity “Rules of 1996”) and drawing analogy from rule 22 of the Rules of 1996. Rule 7 of the Rules of 1996 reads thus :- “7. Power to grant trade quarry.- (1) The quarries of Minerals specified in serial number 5 of Schedule I and serial numbers 1, 3 and 4 of Schedule II, situated in Government land, shall be allotted only by auction: Provided that quarry lease of mineral specified in serial number 1 of Schedule II may be granted in favour of the Madhya Pradesh State Mining Corporation Limited (Government of Madhya Pradesh Undertaking). (2) The quarry of minerals specified in serial number 5 of Schedule I shall be auctioned for five years and quarry of minerals specified in serial numbers 1, 3 and 4 of Schedule II shall be auctioned for two years : Provided that if contractor establishes cutting and polishing industry, for minerals specified in serial No.5 of Schedule I, within one year, then period of contract shall be exceeded to ten years at the place of five years and in such condition contract money shall be increased by 10% every year excluding first year. (3) The auction of quarries mentioned in sub-rule (1) shall be conducted in a transparent manner by the Collector/Additional Collector (Senior IAS Scale). (4) The power to sanction and control the quarries mentioned in sub-rule (1) shall vest with the Collector/Additional Collector Senior IAS Scale. Provided that where the bid in an auction is less than the upset price filed by the Government the Collector/Additional Collector, shall submit a proposal to the Government. The decision of the Government thereon shall be final and binding on the bidder.” 6. On a bare reading of rule 7, in particular clause (2), it does give an impression that the auction for grant of trade quarry covered by serial No.1 in Schedule 2 should be for 2 years. The question is : whether the expression “for 2 years” must be construed as “minimum 2 years”, as is contended by the petitioner. 7. In the first place, the petitioner has not challenged the terms specified in the auction notice. No such relief has been claimed in the present petition. The question is : whether the expression “for 2 years” must be construed as “minimum 2 years”, as is contended by the petitioner. 7. In the first place, the petitioner has not challenged the terms specified in the auction notice. No such relief has been claimed in the present petition. If so, it is not open to the petitioner to argue contrary to the said term specified in the auction notice under which the petitioner is claiming right for grant of trade quarry. Further, the auction notice, we find, is in consonance with the statutory notice specified in Form 15 of the Rules. The statutory Form 15 stipulates that the contractor will be allotted by public auction trade quarry for period ending 31st of March of the concerning financial year from the date of taking over the possession of the quarry. Moreover, the minimum period specified for grant of quarry lease in rule 22 is applicable to the minerals referred to in the said Rule. Admittedly, grant of trade quarry is not referred to such minerals for which rule 22 has no application in the fact situation of the present case. This position is fairly accepted by the counsel for the petitioner. 8. Considering the fact that specific time frame (period) has been provided in respect of quarry of minerals referred to in rule 22 and no such specific period is provided in respect of grant of trade quarry, it is not possible to countenance the argument of the petitioner that the minimum tenure of 2 years should be granted even in case of grant of trade quarry notwithstanding the period specified in the auction notice (statutory notice issued as per Form 15). The expression “for 2 years” in case of trade quarry must, therefore, be construed to mean as upto to 2 years or the time period as specified in the auction notice itself. 9. Suffice it to observe that there is no legal provision, which mandates the tenure of 2 years period for trade quarry after execution of the agreement even if specific time frame is provided in the auction notice issued in consonance with Format 15 specifying the outer limit to the contrary. 10. As noted earlier, the petitioner has executed agreement pursuant to the auction notice and the agreement is in consonance with the period specified in the auction notice itself. 10. As noted earlier, the petitioner has executed agreement pursuant to the auction notice and the agreement is in consonance with the period specified in the auction notice itself. The fact that the petitioner protested or executed the agreement without prejudice, will not make any difference in the application of rule 7 and more particularly enforcement of auction notice dated 21.2.2013, which specifies the outer limit for the grant of lease as 31.3.2015. The petitioner having participated in the auction process with open eyes and without prejudice to the said condition, cannot be permitted to approbate and reprobate. The fact that the petitioner was unable to execute the agreement because of fortuitous circumstances until 22.2.2015 will be of no avail to the petitioner. There is no express provision in the Rules of 1996 empowering the authority to extend the tenure specified in the auction notice because of the grounds as are pressed into service. As aforesaid, the petitioner having failed to challenge the tenure specified in the auction notice dated 21.2.2013 and also acted upon the same with open eyes cannot be heard to complain the said condition or seek relief contrary to such condition specified in the auction notice. 11. Reverting to the second relief claimed in this writ petition by way of amendment, the petitioner has asked for quashing the order dated 30.3.2015 (Annexure P-14). As a matter of fact, by that communication the tenure of trade quarry has been extended until 30.6.2015 in exercise of power under rule 41(6) of the Rules of 1996. Sub-rule (6) stipulates that if the Authorities have failed to conduct auction due to reasons beyond the control of the State Government, the tenure of the contractor, who has already been awarded mining lease and whose mining lease is subsisting, could be given extension for maximum 3 months on enhancement of 10% in contract money. 12. We have also noted earlier that there is no express provision, which mandates the authority to consider the representation for extending the period already notified in the auction notice and after execution of the agreement in terms of such auction notice. If the order dated 30.3.2015 (Annexure P-14) is quashed the limited benefit which has been extended to the petitioner as a result of non conducting auction within time, will also stand withdrawn. If the order dated 30.3.2015 (Annexure P-14) is quashed the limited benefit which has been extended to the petitioner as a result of non conducting auction within time, will also stand withdrawn. Presumably, the grievance of the petitioner appears to be that the period should have been much more than 3 months and commensurate with 2 years tenure from the date of taking over possession under the agreement executed by the petitioner. That claim having been rejected in the earlier part of judgment, we must rest this order with the finding that no infirmity can be found in the order dated 30.3.2015 (Annexure P-14) for having limited the period of extension of 3 months because of the application of the situation specified in sub-rule (6) of rule 41 to the fact situation of the present case. 13. The second part of prayer clause 2A is to direct the respondents to refund the amount deposited by the petitioner in the event which obviously is on the assumption that the offer given by the petitioner was at the understanding that the petitioner would be given lease for minimum 2 years period. Thus, commensurate reduction for the period which has been lost by the petitioner, must be refunded to the petitioner. This is a matter which arises from the terms and conditions specified in the agreement. Any dispute in that behalf is amenable to remedy under clause 26 of the agreement by way of Arbitration. As efficacious and alternative remedy is available to the petitioner; and, more so, the circumstances, which may be pressed into service to justify the relief of refund may involve disputed questions of fact, it may not be appropriate to invoke writ jurisdiction under Article 226 of the Constitution. That relief can be pursued by the petitioner by way of Arbitration proceedings or any other proceedings which may be permissible in law. All questions in that behalf will have to be decided on its own merits in accordance with law. 14. While parting, learned counsel for the petitioner submitted that in the event the authorities were to accept the claim of the petitioner of commensurate reduction of quantum of contract amount because of reduced time period available to the petitioner for grant of trade quarry, the petitioner may be permitted to purse remedy of refund of commensurate stamp duty amount. 14. While parting, learned counsel for the petitioner submitted that in the event the authorities were to accept the claim of the petitioner of commensurate reduction of quantum of contract amount because of reduced time period available to the petitioner for grant of trade quarry, the petitioner may be permitted to purse remedy of refund of commensurate stamp duty amount. We are not expressing any opinion on the correctness of this submission. But, if the petitioner has any remedy available in the law for refund of principal amount or for that matter towards stamp duty, is free to pursue the same in accordance with law. All question which are not decided in the present proceedings will have to be decided on its own merits in accordance with law. If any representation is submitted by the petitioner, we have no manner of doubt that the concerned authority will decide the same expeditiously and preferably not later than two months from receipt thereof.