- (1.) This is plaintiffs appeal under Sec. 96 of Code of Civil Procedure (hereinafter referred to as "CPC") arising from judgment dated 9.9.1994 and decree dated 13.9.1994 passed by Sri Anurag Kumar, Civil Judge, Meerut dismissing Original Suit No. 455 of 1993. Plaintiff, Jagpal Sharma, instituted aforesaid suit vide plaint dated 6.5.1993 impleading District Magistrate/Collector, Meerut; State of U.P. through Collector, Meerut; Prabhari Adhikari (Khanij), Meerut; Additional District Magistrate (Finance), Meerut; Sub -divisional Officer, Tehsil Baghpat, Meerut; and, Tehsildar, Tehsil Baghpat, Meerut as defendants 1, 2, 3, 4, 5 and 6 respectively. Plaint case set up by plaintiff is that vide auction/tender notice dated 13.4.1991, defendants advertised auction of mining rights to excavate sand of Yamuna River in the area detailed at the foot of plaint in Schedule -A, which comprised of following: JUDGEMENT_258_LAWS(ALL)9_2015.jpg
(2.) The auction was held on 13.5.1991. Plaintiff participated in the auction and offered highest bid, which was accepted by order dated 20.6.1991 of defendant 1 communicated by defendant 3 vide letter dated 29.6.1991. The bid was for Rs. 27,05,000/ -. The mining rights were given for a period expiring on 30.9.1992. Plaintiff deposited Rs. 6,76,250/ -, 1,50,250/ -, 5,26,000/ -, 1,56,000/ - and 6,76,250/ - (total Rs. 21,84,750/ -). Defendants, however, despite their obligation to execute a lease -deed in favour of plaintiff under Rule 29, U.P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as "Rules, 1963") failed to execute the same and also did not allow plaintiff to undertake mining activities. Mining area spread over eight villages having total area of 249.862 hectares. Possession thereof was to be given to plaintiff, free from all hurdles and disputes, but defendants failed to do so. After a great difficulty plaintiff was handed over possession of only 5.5 hectares land in village Mavi Kalan and 10.5 hectares in Village Baghpat. When plaintiff proceeded for mining activities, found that entire area handed over to him had crop cultivation like sugarcane, watermelon, cucumber, wheat etc. besides several dwelling units of villagers. On inquiry, plaintiff was informed by villagers that entire land was given on Patta to those villagers, long back, who were socially backward people. In fact, defendants had already executed Pattas in respect to some of land, to others, for crop cultivation etc. For the aforesaid reason, plaintiff was not able, either to take possession or undertake any excavation of sand, in the said area. Defendants have grossly flouted and violated terms and conditions of statute as well as terms and conditions of auction. Defendants are guilty of having perpetrated fraud upon plaintiff by taking money in respect to land which was never available for mining lease. Several representations were given by plaintiff on 25.7.1991, 19.11.1991 and 16.3.1992 but no response was given by defendants. The Officer -in -charge (Mining) sought a report from Tehsildar who submitted report stating that land was already under crop cultivation and in possession of other lease holders, hence could not be given in possession to plaintiff. Despite that, defendants have raised demand of Rs. 6,76,250/ - upon plaintiff vide demand notice dated 15.5.1992, though it was wholly illegal and barred by Sec. 92 of Indian Contract Act, 1872 (hereinafter referred to as "Act, 1872). In fact, plaintiff has suffered loss of Rupees sixteen lacs per month for non excavation etc. Though lease was for a period of three years but it was illegally cancelled by defendants on 22.6.1992 causing serious loss to plaintiff. Plaintiff filed Writ Petition No. 3167 of 1992, but the same was dismissed on the ground of alternative remedy vide judgment dated 23.9.1992 observing that petitioner has alternative remedy to file suit for damages in Civil Court. Plaintiff took the matter to Apex Court, but it has also dismissed appeal taking the same view. Plaintiff, therefore, sought a decree of permanent injunction (mandatory injunction) directing defendants to execute lease -deed in favour of plaintiff pursuant to auction held on 13.5.1991 regarding area detailed in Schedule -A at the foot of plaint and deliver possession thereof. He further sought a decree of prohibitory injunction restraining defendants from proceeding to recover Rs. 6,76,250/ - pursuant to demand notice dated 15.5.1992. A further mandatory injunction was sought against defendants for refund of Rs. 31,85,750/ - (Rs. 21,84,750/ - deposited by plaintiff and interest thereon). It also sought a permanent injunction against defendants to pay Rupees sixteen lacs with interest towards damages by way of compensation and also interest at the rate of 24 per cent per annum, pendent lite till the date of payment.
(3.) Defendants contested the suit filing their combined written statement dated 6.7.1993 stating that plaintiff has deposited Rs. 20,28,750/ - against bid money of Rs. 27,05,000/ -. A sum of Rs. 1,56,000/ - deposited by plaintiff was not part of bid money but deposited by him towards payment of sand excavation allowed to him on day to day basis for 27 days, i.e., from 24.5.1991 to 19.6.1991 at the rate of Rs. 5,780/ - per day. It was pursuant to an interim order dated 9.5.1991 passed by this Court in Writ Petition No. 23222 of 1992 filed by plaintiff wherein confirmation of auction was stayed for six weeks. Plaintiff made a prayer that during this period he may be allowed to excavate sand on per day basis which was permitted. In the auction notice, it was mentioned that participant may inspect area notified for excavation of sand and thereafter participate. Plaintiff, therefore, after inspection of area mentioned in the auction notice, participated in auction. He had already inspected area wherein sand was available for mining and had no reason to raise any complaint thereafter. The entire area was handed over to plaintiff for excavation of sand. No fraud has been played with plaintiff and there is no breach of terms and conditions of auction at any point of time. Plaintiff has not suffered any loss on account of alleged act on the part of defendants and instead himself is guilty of not depositing entire bid amount. Since plaintiff failed to make payment of installments, hence in terms of conditions of lease, it was cancelled on 22.6.1992 whereagainst plaintiff sought a stay order from Court and continued with mining.;