The petitioner has taken out present petition seeking below mentioned reliefs: “26(A) YOUR LORDSHIPS may be pleased issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions directing the concerned respondent authorities to hand over peaceful and vacant possession of entire 7 Hectors of land, situated at Survey Nos.94 to 100, River Bhader forthwith; (B) YOUR LORDSHIPS May be pleased issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside letter dated 15.09.2011 (at ANNEXUREN hereto);”
2. Mr. H.J.Karathiya, learned advocate, has appeared for Mr. Majmudar, learned advocate for the petitioner. He submitted that the petitioner's request and representation, particularly letter dated 28.3.2011 has not been properly responded by the competent authority and the same has remained pending. He submitted that, at this stage, all that the petitioner requests is that the said request and representation may be decided.
3. From the record of petition and from submissions of learned advocate for the petitioner, it comes out that the petitioner has approached the Court with the allegation that though the petitioner has been granted lease in respect of land bearing Survey Nos.94 to 100 near river Bhadar, village Segras, the possession of the said land (admeasuring about 7 Hectors), as described in the lease agreement, is not handed over to the petitioner and certain local persons have encroached upon the land in question. On such allegation, the petitioner has preferred present petition and challenged the communication dated 15.9.2011.
3.1 On perusal of the said communication dated 15.9.2011, it emerges that after the lease agreement was entered into between the petitioner and the respondent, the petitioner was supposed to make payment of Rs.35,55,501/ towards royalty and out of the said amount, initially, 25% of the said amount, i.e.
Rs.8,53,875/, was to be deposited immediately and subsequently, installment of Rs.8,53,875/ was to be paid on or before 23.6.2011 and thereafter, further installments were to be paid by the petitioner in accordance with the terms of the agreement.
It also appears that though the petitioner deposited amount of Rs.8,53,875/ on 10.3.2011, the petitioner, thereafter, ignored to make payment of subsequent installments and until now, the petitioner has not made payment of any subsequent installments after having initially paid Rs.8,53,875/.
4. In this view of the matter, the petitioner was informed that unless and until, the petitioner clears the entire outstanding dues, which have become payable until now and receives certificate from the competent authority with regard thereto, petitioner's request made vide letter dated 28.3.2011, can not be considered.
5. In response, learned advocate for the petitioner has, today, shown readiness to deposit the said amount and submitted that within two weeks, the petitioner will make payment of entire outstanding dues which have become payable (as per the terms of the agreement) and upon payment of such dues, the respondent authority may take appropriate steps for removal of encroachment and to hand over possession of the lease area in question to the petitioner.
6. In view of said submissions by learned advocate for the petitioner, without going into the disputes as to whether the petitioner has or has not taken steps to take possession of the land in question and/or whether the alleged encroachment has taken place after allotment to the petitioner and during the period of nonpayment of installments and/or whether the possession of the land in question has not been given to the petitioner on account of alleged encroachment or on account of defaults by the petitioner in payment of due installments or on account of noncompliance of requisite condition or the possession has not been handed over due to any lapse on the part of the respondents, present petition is disposed of, at this stage, with below mentioned observations and directions:
6.1 As expressed by learned advocate for the petitioner, the entire outstanding dues, which have become payable as of 15.9.2012, will be paid by the petitioner within two weeks, i.e. on or before 30.9.2012.
6.2 After such amount is paid, the competent authority will issue certificate in favour of the petitioner that amounts due and payable by the petitioner until 15.9.2012 have been paid.
6.3 The petitioner shall also submit an undertaking in form of affidavit to the respondent authority declaring that the petitioner will make the payment, if any, required to be made in accordance with the terms of the agreement, regularly and without any default on any ground whatsoever.
6.4 After the competent authority issues “No Due Certificate” and the undertaking, as aforesaid is submitted to the respondent authority, the respondent authority will, within two weeks thereafter, take into account the petitioner's request made vide letter dated 28.3.2011 and if the authority finds that any action or any steps are required to be taken so as to make available the possession of the land in question to the petitioner, then, appropriate decision and action in connection with the said request may be taken by the competent authority.
7. With the aforesaid observations and direction, present petition stands disposed of. Rule is made absolute to the aforesaid extent. Adinterim / interim relief, if any, granted earlier, stands vacated forthwith.
(K.M.Thaker, J.)
8. After aforesaid order was dictated, but before it could be typed and signed, Mr. Majmudar, learned advocate, has appeared and submitted that the petitioner is not willing to make any statement or stipulation or admission about payment and that order on basis of petitioner's statement may not be made. He also submitted that the petitioner may consider the option of payment only if and after respondent removes the encroachment and hands over possession.
Therefore, aforesaid order stands recalled and cancelled. Instead, following order is passed:
9. It emerges from the record, particularly from the contract / agreement dated 23.3.2011 (AnnexureA Page25) that the petitioner is obliged to pay a sum of Rs.35,55,501/ towards consideration for the grant of 07.00.00 Hectare area for mining of ordinary sand. The said condition was accepted by the petitioner. Further condition, i.e. to deposit 25% of the amount at the outset and to pay remaining 75% of bid amount (in next three monthly equal installments) was also consciously accepted by the petitioner.
9.1 It is not in dispute that the petitioner paid a sum of Rs.8,53,875/, being 25% of bid amount, vide challan No.17 dated 10.3.2011.
9.2 However, it is also not in dispute that the petitioner did not pay the balance 75% bid amount which the petitioner was obliged to pay (in next three monthly equal installments) i.e. on or before 10.6.2011.
9.3 It is also not in dispute that the said default and nonpayment has continued until now and after March2011, the petitioner has not paid any amount (except the first payment for Rs.8,53,875/).
9.4 Having committed default in discharging her own obligation, the petitioner has come out with allegation about encroachment. So as to justify and support such allegation, she has tried to rely on the socalled complaints alleged filed by her, however, there is no independent evidence to establish and prove the allegations about encroachment.
10. Under the circumstances, the disputed question which would arise is as to whether the alleged encroachment was existing when the petitioner submitted the bid or on the date on which the petitioner's bid was accepted, i.e.
prior to the date of agreement between the parties or the alleged encroachment took place subsequently. Further question also arise as to whether the petitioner is trying to hide behind the allegation about encroachment or is trying to conceal her own default in maying payment of balance bid amount by making allegation about encroachment.
10.1 In view of the undisputed fact that since March 2011, the petitioner has not discharged her obligation of making payment of balance bid amount and thereby of her own conduct invited action of automatic termination of the agreement and in view of the fact that the petition raises disputed question of facts in light of the allegations about encroachment, which are urged by the petitioner, the petition does not deserve to be entertained.
10.2 When the petitioner is in default and has committed breach of the obligation to pay balance bid amount (in next three monthly equal installments), this Court is not inclined to exercise prerogative writ jurisdiction and to exercise discretionary jurisdiction in favour of the petitioner who is in default in making payment of balance bid amount. Therefore, the petition should fail.
The Court is not inclined to entertain the petition and the petition is, accordingly, dismissed. Rule is discharged. Adinterim / interim relief, if any, granted earlier, stands vacated forthwith.
(K.M.Thaker, J.) kdc