Punjab-Haryana High Court
Lalit Kumar vs State Of Haryana on 23 April, 2002
Author: K.C. Gupta
Bench: K.C. Gupta
JUDGMENT K.C. Gupta, J.
1. This writ petition has been filed by Lalit Kumar, petitioner, under Articles 226/227 of the Constitution of India, for issuing a writ of mandamus directing the official respondent to correct/rectify the middle line, wrongly shown in the site plan attached with the agreement, as North-South and to show it as East-West regarding khasra No. 103 min.
2. Briefly stated, the facts are that the State of Haryana (respondent No. 1) issued a public notice by way of Haryana Govt. Gazette Extra Ordinary dated 6.1.1999, declaring the different mining areas including the one measuring 3130 Kanals 7 Marias of Khasra No. 103 situate in village Chharora, District Gurgaon, available for the grant of mining lease for extraction of road metal and masonary stone (minor mineral), under the Punjab Minor Mineral Concession Rules, 1964 (hereinafter referred to as the 'Rules') with effect from 10.2.1999. The petitioner applied to the respondent-authority on 10.2.1999 on the prescribed from, for the grant of mining lease for road metal and missionary stone with respect to the above mentioned Khasra number along with all requisite docu-ments. Respondent No. 4 Ashok Kumar Gupta proprietor of M/s Shriram Minerals also applied for this very mining area along with other applicants.
3. Instead of granting the above said mining area to one person, the authorities, for the reasons best known to them, divided the above said area into two plots i.e. plot No. 1 and 2 granted the mining lease of plot No. 2 in favour of the petitioner and that of plot No. 1 in favour of respondent No. 4, for a period of 10 years-. In this regard letter dated 21.5.1999 was issued in favour of the petitioner. He also submitted that stamp papers worth Rs. 18750/- alongwith copies of the draft agreement, Akash Shajra and a demand draft for Rs. 10 lacs as security, before respondent No. 2 for the purpose of execution of the lease agreement, pursuant to the above said letter of grant dated 21.5.1999. Copy of the Akash Shajra dated 29.5.1999 prepared by the Patwari Halqa pertaining to village Chharora is annexed herewith as Annexure P-2. The lease agreement (copy annexure P-4) was executed according to which the petitioner was granted the mining lease of plot No. 2 in village Chharora, District Gurgaon of Khasra No. 103 min towards Chilla, measuring 86.8125 hectares, for a period of 10 years commencing from 2.6.1999. The symbolic possession was handed over to him on 12.7.1999. Lateron the Mining Officer wrote a letter (copy Annexure P-5) to the Naib Tehsildar to get the above said mining area demarcated including its boundaries between Chharora and Chilla queries. The actual possession of the above said mining area was handed over to the petitioner on 19.7.1999, vide Rapat Roznamcha No. 520 dated 19.7.1999 (copy Annexure P-6), pertaining to the lease area of Plot No. 2. It was further averred that respondent No. 4 was also handed over the possession of his lease area on 14.10.1999 vide Rapat Roznamcha No. 74 dated 14.10.1999 (copy Annexure P-7), in pursuance of his lease agreement over an area of 70 hectares in Plot No. 1 of Khasra No. 103 min towards village Sikho side.
4. It was next averred that the petitioner had just started his mining operation when respondent No. 4 with a mala fide intention blocked his passage available for the queries claiming' that the same falls in his lease area. He also colluded with one Shri M.K.Sud, Surveyor of the Department and put a demarcation line from North to South between Plots No. 1 and 2 instead of West of East in the Akash Shajra (Annexure P4) attached with the lease agreement. By the proposed bifurcation, the entire mining area of the petitioner had become totally unworkable for the simple reason that no passage was available to his mining area from any side.
5. It was further averred that it was made to understand at the time of the execution of the lease agreement that his mining area would be towards village Chilla side while the miling area of respondent No. 4 would he towards village Silkho side and this mate-
rial fact has been further substantiated by Rapat Roznamcha that there is only one path available to the petitioner to Khasra No. 103 which is through the mining area of respondent No. 4 and by diving the mining area from North to South there remains no passage available to his mining area and as such his mining area has become totally unworkable and useless.
6. It was also averred that the petitioner submitted various representations (copies annexures P10, P11 and P12) asking the official respondents to change the middle line from C-D and A-B in blue print (copy Annexure P-9) which has been drawn behind his back but to no effect. With these allegations, the present writ petition was filed.
7. The respondents contested the petition. Respondents No. 1 to 3 filed joint written statement while respondent No. 4 filed a separate written statement. Respondent No. 1 to 3 in their written statement, took preliminary objection that the petitioner and respondent No. 4 were granted mining lease for Chharora Plot No. 2 and Plot No. 1 respectively for extraction of stone for a period of 10 years. These two plots were carved out by dividing Khasra No. 1023 of village Chharora into two plots by a North-South line. Along-with the lease deed executed by the petitioner with the respondent State of Haryana, a copy of the map (Annexure R-l) showing the demarcation was also attached.
8. On merits, they controverted the allegations of the petitioner and stated that when the lease deed was executed by the petitioner, a revenue map of the area showing the demarcation of the two plots was also attached which was duly signed by the petitioner as well as by the executing authority i.e. the Director Mines and Geology. They further stated that after execution of the lease deed on 2.6.1999, the petitioner took over the physical possession of the plot and operated the same on short term permits obtained from the Mining Officer, Gurgaon, for the period of 12.11.1999 on 30.12.1999 and 3.2.2000 to 19.2.2000. During this period, he did not raise the issue of demarcation of the plots. They further stated that in the Roznamcha of Halqa Patwari the petitioner colluded with the Patwari and managed to get entered 'North' in the Roznamcha but no such entry was made when the possession was given to respondent No. 4 vide Roznamcha entry (Annexure P-7).
9. Respondent No. 4 in his written statement took preliminary objection; hat since the disputed questions of fact were involved, so, the present writ petition was not maintainable. On merits, he stated that after taking possession of his plot No. l, he had spent about Rs. 15 lacs which included the amount of security towards the plot. He also stated that he was placing on record the site plan (copy annexure P-4/1) duly attested by the local Patwari which clearly shows that on the northern side of the Plot, there is katcha Rasta which is connected with a metalled road which reaches very close to the plot of the petitioner and if the same was followed by the petitioner, then he (respondent No. 4) had to give a short passage to the petitioner to reach his plot which was acceptable to him. But instead of the above said passage, the petitioner wants a passage in between the mining area of his (respondent No. 4) plot and due to that passage, his mining operations would be adversely affected.
10. I have heard Mr. Rameshwar Malik, learned counsel for the petitioner, Mr. Gautam Datt, Advocate proxy for Mr. R.S. Rai, Advocate for the respondent No. 4 and Mr. Girish Agnihotri, Addl. A.G. Haryana with Mr. S.S. Brar, D.A.G., Haryana, for respondents No. 1 and 3 and carefully gone through the file.
11. It is an admitted fact that Haryana Govt. vide Gazette notification dated 6.1.1999 had declared the mining area measuring 3130 Kanals 7 Marias of Kashra No. 103 of village Chharora, District Gurgaon, available for the grant of mining lease for extraction of road metal and massonary stone under the Rules with effect from 10.2.1999. It is also an admitted fact that the said Khasra No. 103 min was divided into two plots. Plot No. 2 was allotted to the petitioner towards Chilla side measuring 86.8125 hectares for a period of 10 years and the lease was to start from 2.6.1999. Respondents No. 4 was allotted plot No. 1 measuring about 70 hectares towards village Silkho side of Khasra No. 103 Win.According to the official respondents, this Khasra number was divided from North to South while according to he petitioner it was divided from West to East. Annexure P-8 is the copy of the Akash Shajra. It is signed by the petitioner. It shows that the said Khasra number was divided from North to South and not for West to East.PIot No. 2 i.e. on village Chilla side was granted to the petitioner while plot No. 1 situated towards village Silkho was allotted to respondent No. 4. In the lease deed there is no mention that the petitioner had been allotted plot towards Northern side while respondent No. 4 had been allotted plot towards Southern side. Village Chilla is situated towards North-Eastern side while village Silkho is situated towards South-Western side. If the division had been from West to East then it would have mentioned in the lease deed that the plot situated towards Northern side had been leased out to the petitioner while plot No. 1 situated towards Southern side had been leased out to respondent No. 4. Having not mentioned so, it clearly shows the intention of the authorities was to divide the two plots from North to South. The allegation of the petitioner is that the line in Akash Shajra (Annexure P-8) was not drawn at the time of execution of the lease deed but it was put on later on by the Surveyor in connivance with respondent No. 4. The Akash Shajra (Annexure P-8) is signed by the petitioner, so it will be presumed that the line was drawn from North to South at the time of execution of the lease deed in favour of the petitioner.
12. Learned counsel for the petitioner contended that by the proposed dividing line from North to South the plot of the petitioner has been rendered unworkable as no path has been provided to approach the mining area and the path which was constructed, is not workable and is also situated at a distance of 7-1/2 Kms (15 Kms to and fro) from the man road. Shri M.M. Monga, Mining Officer, of the Mines and Geology Department, Gurgaon, has filed an affidavit dated 8.2.2002, which reads as under:-
"1. That Kacha Path shown in the plan in blue colour does actually exist on the spot. The averments made in the affidavit by the petitioner are incorrect.
2. that in reply to para 2 of the affidavit of the petitioner, it is submitted that the mining area of the petitioner is located at about 400 meters from the pond. It is also stated that this old village pond exists along the Kacha Path but does not cause any obstruction to the passage. This access was being used even before the grant of mining lease to the petitioner. The other averments made in this para of the affidavit by the petitioner are incorrect.
3. That in reply to para 3 of the affidavit of the petitioner it is submitted that the boundary of Chilla mine granted to M/s Gupta & Co. adjoins the boundary of the mining area of the petitioner. It is incorrect that the entire path passes through the leased area of the lessee of the Chila mine, however, at some places it passes through the leased area near the boundary tine of this mine, which is not unusual. The length of metalled link road is approximately 3 K.M. from the Taura-Nuh Road and the kacha path after the metalled road is about 1 K.M. It is further submitted that the Kacha path does not actually passes through the village abadi. However, the village abadi adjoins the kacha path for about 200-300 meters. It is incorrect that the one trip to and fro on this path cannot be less than 15 K.M. The defendant actually measured the distance by Govt. Jeep and to and from the mining area of the petitioner is around 8 K.M.
4. That in reply to para 4 of the affidavit of the petitioner, it is submitted that there are some sand dunes in the area but the passage is independent of those sand dunes. It is incorrect that the use of this path is impossible, rather this path is available in the area and is in workable condition. It is further submitted that even before the grant of mining leases of Chilla and Chharora mines, when these mines were operated on mining contracts, this path was being used by both contractors of these mines, the proposed path is working and is being used for last many years."
13. Therefore, according to this affidavit, there is a distance of 4 Kms. from the mining area of the petitioner upto Tauru-Nuh metalled road and further the said path is available and is in workable condition. It is also stated that even before the grant of mining leases of villages Chilla and Chharora mines, these mines were operated on mining contracts, this path was being used by the contractors of these mines. On the other hand, the petitioner had denied that the distance from Tauru-Nuh road is only 4 Kms on one. side and further there is a workable path. Hence, there are disputed questions of fact whether the distance from Tauru-Nuh metalled road to the mining area of the petitioner is 4 Kms from one side and further whether the said path is workable or not. The petitioner had already been operating the mining area by taking short permits. He did not raise any question relating to the passage at that time. Since the petitioner had raised disputed questions of fact, so the same cannot be decided in this writ petition.
14. Therefore, the writ petition is dismissed. If at all the petitioner is feeling ag grieved, then he can resort to civil remedy by way of filing a civil suit.