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2016 DIGILAW 973 (ORI)

Ganeswar Sahoo v. State of Odisha

2016-10-25

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : Dr. B.R. SARANGI, J. The Tahasildar, Bhuban-opposite party no.3 floated an auction notice dated 08.05.2014 for Sand Quarry operation at Kanapal Samil Mahulpal appertaining to Khata No.442, Plot No.4267 measuring an area Ac.1.000 decimals under the provisions of Orissa Minor Minerals Concessions Rules, 2004. Pursuant to such notice, the petitioner participated in the auction sale held on 21.05.2014 vide Touzi Misc. Case No.11 of 2014-15 and being a successful bidder deposited the bid amount of Rs.9,51,591/-vide money receipts no.0870282 dated 21.05.2014 and no.0870308 dated 29.08.2014. The lease agreement was executed between the petitioner and opposite party no.3-Tahasildar-cu.m.-competent authority on 30.05.2014, which was valid till 31.03.2015. Thereafter, the petitioner was accorded permission for carrying out the quarrying operation on the terms and conditions specified in the lease agreement. The petitioner, after due execution of the lease agreement, was also issued with eight transit permit books to be filled up and handed over to the authorities for transmission of the minor minerals in accordance with provisions contained in Orissa Minor Minerals Concessions Rules 2004 (hereinafter referred to as the ‘2004 Rules’). But, before the petitioner could transact the business for the quarry operation, opposite party no.3 on 29.06.2014 directed the petitioner to return the transit permit books and restrained him from carrying on the operation of sand quarry on the ground that the Collector, Dhenkanal-opposite party no.2 had issued a letter on 29.06.2014 stating therein that in view of the direction of the Addl. Chief Secretary, Revenue and Disaster Management Department, Govt. of Odisha, the operation of all sand mining quarries below 5 hectares was to be stopped with immediate effect and the transit permit books issued to the auction holder were to be seized till receipt of further communication from the district office. As the petitioner could not operate the quarry after 29.06.2014, he sought for refund of the bid amount of Rs.9,51,591/- deposited at the time of auction sale or in alternative to allow him to operate the quarry in question. But, due to inaction of the authorities, the petitioner has approached this Court by filing the present application. 2. Mr. Soumya Mishra, learned counsel for the petitioner urged that the petitioner being the highest bidder, pursuant to auction sale held on 21.05.2014 in Tauzi Misc. But, due to inaction of the authorities, the petitioner has approached this Court by filing the present application. 2. Mr. Soumya Mishra, learned counsel for the petitioner urged that the petitioner being the highest bidder, pursuant to auction sale held on 21.05.2014 in Tauzi Misc. Case No.11 of 2014-15, deposited the entire bid amount of Rs.9,51,591/- with opposite party no.3, and for no fault of his own the petitioner having been prevented from carrying on quarry operation, he is entitled to get refund of the bid amount deposited with opposite party no.3. He further contended that the petitioner was issued with eight number of transit permit books containing 50 pages each, (at the rate of 6 cu.m. of sand per page of such transit permit book) and the maximum capacity of sand that could be lifted vide one such transit permit book being 300 cu.m., the petitioner could have lifted 2400 cu.m. of sand in 8 transit permit books. But, the determination of the opposite parties that the petitioner has excavated 6548 cu.m. of sand on the basis of report given by the Revenue Inspector, who is a field functionary, is absolutely a misconceived one and without any basis and more so the said report has been received by opposite party no.3 on 06.04.2015, when the quarry operation has already been stopped pursuant to letter dated 29.06.2014. The manner of determination of excavation of 6548 cu.m. of sand after passing of rainy season could not have been done. Thereby, the authorities are deliberately and willfully causing harassment to the petitioner in refunding his legitimate dues for non-operation of the quarry in question. 3. Mr. P.K. Muduli, learned Additional Government Advocate admitted the factum of auction sale and execution of agreement with the petitioner by opposite party no.3 and acceptance of Rs.9,51,591/- towards bid amount on 21.05.2014 and 29.05.2014. But, he urged that the petitioner having excavated 6548 cu.m. of sand, as per the report of the field functionary dated 06.04.2015, he is not entitled to get refund of amount as claimed in the writ petition. But, he urged that the petitioner having excavated 6548 cu.m. of sand, as per the report of the field functionary dated 06.04.2015, he is not entitled to get refund of amount as claimed in the writ petition. While admitting that due to the letter under Annexure-4 issued by the Collector, Dhenkanal, the petitioner has stopped the mining operation with effect from 29.06.2014, he also urged that the petitioner having executed an agreement for operation of the sand quarry below 5 hectares, he was not eligible to operate the sand quarry allotted in his favour in the tender held in pursuance of Annexure-1 and, thereby, the transit permit books issued in favour of the petitioner have rightly been seized by the authorities. Consequentially, no illegality or irregularity has been committed by the authorities and, as such, the petitioner is not entitled to get refund of the amount as claimed in the writ petition. 4. Having heard learned counsel for the parties and after going through the records, since pleadings have been exchanged between the parties, with their consent, this writ petition is being disposed of finally at the stage of admission. 5. In view of the facts pleaded above, there is no dispute that the petitioner participated in the auction of Sairat pursuant to the notification dated 08.05.2014 and he being a successful bidder had deposited an amount of Rs.9,51,591/- on 21.05.2014 and 29.05.2014 by two separate money receipts granted by the authorities. It is also not disputed that the petitioner has been issued with eight transmit permit books containing fifty pages each to carry on the quarrying operation in accordance with the provisions contained in 2004 Rules. But the reason for stopping of quarrying operation emanates from the letter issued by the Collector on 29.06.2014, in view of the direction of the Addl. Chief Secretary, Revenue and Disaster Management Department, Govt. of Odisha that the operation of the sand quarry having less than five hectares shall be stopped with immediate effect. The agreement which has been executed between the petitioner and opposite party no.3, being valid for the period from 30.05.2014 to 31.03.2015, in the midst of the agreement period, the petitioner was directed to stop the mining operation on 29.06.2014. of Odisha that the operation of the sand quarry having less than five hectares shall be stopped with immediate effect. The agreement which has been executed between the petitioner and opposite party no.3, being valid for the period from 30.05.2014 to 31.03.2015, in the midst of the agreement period, the petitioner was directed to stop the mining operation on 29.06.2014. As such, the petitioner had hardly got opportunity to operate the quarry, if at all, for the period from 30.05.2014 and 29.06.2014 on the basis of the transit permit books, which have admittedly been seized by the opposite parties from the petitioner on receipt of the communication from the Collector on 29.06.2014. 6. On the basis of the report of the Revenue Inspector, Mahulpal dated 06.04.2015, a new case has been attempted to be made out by the opposite parties stating inter alia that as on 05.04.2015, the excavation of 6548 Cu.m. of sand has been made from the said quarry. But, it is the admitted fact that the petitioner was prevented from operating the quarry w.e.f. 29.06.2014 and whatever quarrying operation had been done by him between 30.05.2014 and 29.06.2014 that was done in accordance with the provisions of 2004 Rules by utilizing the transit permits issued in his favour by the opposite party no.3. After seizure of the transit permit books on 29.06.2014, the petitioner had not made any quarrying operation. Thereby, the report furnished by the Revenue Inspector that the petitioner has excavated 6548 cu.m. of sand as on 05.04.2015 from the quarry in question is absolutely misconceived one, as the quarrying operation was stopped w.e.f. 29.06.2014. The report furnished by the Revenue Inspector on 06.04.2015 and the so called determination of excavation of the sand made therein being based on no material, the same cannot be accepted, particularly when rainy season had already passed in between. 7. Mr. Soumya Mishra, learned counsel for the petitioner states that for the quantity of excavation of sand made by the petitioner during the period of operation, i.e., 30.05.2014 to 29.06.2014 on the basis of the transit permits, he is liable to pay the royalty and other statutory dues in terms of Rules 2004. Therefore, after deducting the said amount, the balance amount should be refunded to the petitioner. Therefore, after deducting the said amount, the balance amount should be refunded to the petitioner. Even otherwise also, it is urged that assuming eight transit permit books had been issued containing fifty pages each, the minimum lift capacity of each book being 300 cu.m. of sand, by eight books, if the excavation is taken into account, it cannot exceed 2400 cu.m. of sand. Even determining the amount on total excavation of 2400 cu.m. of sand pursuant to the transit permit, the petitioner is still entitled to get refund of the balance amount from the deposited amount of Rs.9,51,591/-. In our view, the contention of learned counsel for the petitioner has force. 8. In the counter affidavit filed by the State, a new case has been made out stating that pursuant to the order of the Tahasildar, Bhuban dated 30.05.2014, the petitioner has not deposited Rs.19,250/- in favour of the Chairman, SEIAA in shape of demand draft along with the forms, for receipt of environment clearance and, as such, the said amount may be deducted from the amount already deposited with the authority. 9. The report given by the Revenue Inspector that the petitioner had excavated 6548 cu.m. of sand as on 05.04.2015 cannot be accepted, when the petitioner had already stopped the quarrying operation w.e.f. 29.06.2014. In absence of any material, it can at best be assessed that the petitioner could have excavated 2400 cu.m. of sand as per the transit permits issued in his favour. Therefore, the report of the Revenue Inspector is nothing but an outcome of non-application of mind, inasmuch as the reliance placed thereon by the opposite parties in the counter affidavit also cannot be sustained in the eye of law. 10. We are not accepting the report of the Revenue Inspector dated 06.04.2015, which indicates that quantity of sand excavated was 6548 cu.m. till 05.04.2015, as the petitioner had already stopped the quarrying operation w.e.f. 29.06.2014 and during that period the rainy season had already passed. The determination of such quantity being without any basis, the determination has to be made on the basis of transit permits issued in favour of the petitioner to be utilized by him during the quarrying operation. The determination of such quantity being without any basis, the determination has to be made on the basis of transit permits issued in favour of the petitioner to be utilized by him during the quarrying operation. If the eight transit permit books had not been recovered from the petitioner, then pursuant to such eight number of transit permit books, the maximum determination of excavation of sand could have been 2400 cu.m. 11. In Chambers Dictionary New Edition, the meaning of ‘refund’ has been clarified to the following effect: “Refund: to pour back (now rare); to repay, to restore what was taken – n refund (re’fund or ri-fund’). – adj refundable”. The Concise Oxford Dictionary, New Seventh Edition, meaning of ‘refund’ states as follows: “Refund-v.t. pay back (money received or taken, expenses incurred by another, or abs.); reimburse;-n. pour bank”. Collins English Dictionary, states as follows: “Refund-1. to give back (money), as when an article purchased is unsatisfactory, 2. to reimburse (a person), n. refundment, 3. return of money to a purchaser or the amount so returned.” Cambridge English Dictionary, states as follows: “Refund-an amount of money that is given back to you, especially because you are not happy with a product or service that you have bought. To give someone a refund. Merriam Webster Dictionary, meaning of ‘refund’ states as follows: “Refund-To give or pour back, to return (money) in restitution, replacement, or balancing of account. n. an amount of money that is given back to someone who has returned a product, paid too much, etc.” P. Ramanatha Aiyar’s Advanced Law Laxicon 4th Edition, states as follows: “Refund. To repay; to give back; to restore; reimburse. To return goods or money, to retire an existing issue of bonds by selling a new issue. 12. In Sandrik Asia Ltd. v. CIT, (2006) 2 SCC 508 at para-18 of page 531-32, while considering Section 244(1-A) under the Income Tax Act (43 of 1961), the apex Court held as follows:- “The concept of ‘refund’ under Section 244(1-A) of the Act does not admit of a limited meaning but must be held to mean any amount payable by the Department to an assessee whether as and by way of ‘refund’ or ‘interest’.” 13. Applying the above meaning to the present context and in view of the facts discussed above, as the petitioner has not been permitted to operate the quarry for the full term of the agreement, i.e., 30.05.2014 to 31.03.2015 and he was directed to stop the quarrying operation w.e.f. 29.06.2014, for the period he has been allowed to operate the quarry, i.e., 30.05.2014 to 29.06.2014, if any excavation of sand has been made by utilizing the transit permits issued in his favour, the same shall be determined and the amount shall be quantified accordingly and whatever statutory dues in shape of royalty, etc., the petitioner is liable to deposit, the same shall be calculated and deducted from the deposited amount and the balance amount shall be refunded to the petitioner within six weeks of filing of a certified copy of this order before the Tahasildar, Bhuban-opposite party no.3. 14. For the foregoing discussions, the writ petition is allowed to the extent indicated above. No order to cost.