The liability of the petitioner to pay dead rent even if the petitioner was unable to extract mineral, on account of non-availability of clearances, would not cease.

ORDER :

The petitioner herein had been granted a mining lease for Silica Sand over an extent of Ac.260.00 in Sy.No.20 & 38 of Siddawaram Village, Kota Mandal, Nellore District in the year 2003, for a period of 20 years, vide G.O.Ms.No.236, Ind. & Com. (Mines) Department, dated 06.08.2003. The petitioner commenced quarrying operations after obtaining the said lease. On 14.09.2006, an environment impact assessment notice was issued under the Environmental Protection Act, 1986 making it mandatory for lessees for excavating minor minerals also to obtain environment clearance before the commencement of mining operations. On account of this notification, the petitioner had to stop quarrying operations from 01.05.2013 and could recommence the quarrying operations only after obtaining the said environment clearance. It is the case of the petitioner that such clearance was not required, in the case of the petitioner, as the quarrying operations of the petitioner had commenced even prior to the date of the notification and such a clearance would have to be necessary only at the time of obtaining renewal of the lease. However, the petitioner does not appear to have taken any steps to obtain relief on this basis.

2. The petitioner despite not carrying on any quarrying operations had paid dead rent till 2017-18. The petitioner stopped paying dead rent for the years 2018-19 onwards. The petitioner has now approached this court by way of the present writ petition for a declaration that the action of the respondents in insisting for payment of dead rent for the period 2013-20, even though the quarry was not in operation, as illegal and arbitrary and violative of Articles 14, 19 and 300A of the Constitution of India.

3. Sri N. Vijay, learned counsel appearing for the petitioner, would submit that the grant of a mining lease cannot be equated with a lease defined under the Transfer of Property Act. It must be understood to mean a grant of two rights, i.e., a right to enter the leased/licensed area and a right to extract minerals from the leased/licensed area. He would further submit that the transaction is a transaction in the nature of “ Profit a prendre”. He would further submit that once the petitioner’s right to extract minerals had been suspended, on account of lack of environment clearance, there would be no liability on the petitioner to pay dead rent.

4. Sri N. Vijay, learned counsel for the petitioner, would also submit that the delay in obtaining the environment clearance was on account of the inaction of the authorities of the State in granting necessary No Objection Certificates for obtaining the environment clearance for taking up quarrying operations. He would submit that on this count also, the petitioner cannot be made liable for payment of dead rent during the said period. He relies upon the following judgments for this proposition.

1. Shrimati Shantabai vs. State of Bombay and Ors., 1959 SCR 265 = AIR 1958 SC 532;

2. Katyayani Debi vs. Udoy Kumar Das, AIR 1925 PC 97;

3. India Nilakantha Pati vs. Kshitish Chandra Satpati and Ors., AIR 1951 CALCUTTA 338

4. Surendra Nath Bibra vs. Stephen Court Ltd., AIR 1966 SC 1361;

5. Budge Budge Co. Ltd., vs. Jute Corporation of Ltd., 2001 Law Suit (Cal) 601;

6. Raichurmatham Prabhakar and anr., vs. Rawatmal Dugar, AIR 2004 SC 3625

5. Sri N. Vijay, learned counsel for the petitioner, would also rely upon a circular issued by the Government of India bearing No.16(2-1) 2001-MVI, dated 09.10.2001 wherein it was directed that the Mining Department would not be entitled to recover any money including dead rent, over the leased area, for the period during which physical possession of the leased area is not with the lessee and where the lessee ceased to have legal right over the mining area.

6. Respondents 1 to 3 have filed a counter affidavit. In this counter affidavit, the contention of the petitioner, that the grant of environment clearance got delayed on account of inaction of the authorities of the State,