THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO.20572 OF 2007 Dated 15th June, 2010 Between: Mutyala Veera Venkat Satyanarayana …Petitioner And The District Collector, East Godavari District, Kakinada And another …Respondents Counsel for the petitioner : Sri S.Subba Reddy Counsel for the respondents: AGP for Mines and Geology The Court made the following ORDER: At the interlocutory stage, the writ petition is taken up for hearing and disposal at the request of the learned counsel for the petitioner. The writ petition is filed for a Mandamus to declare the inaction of the respondents in returning Rs.9,89,645/- to the petitioner as illegal and arbitrary. I have heard Sri S.Subba Reddy, learned counsel for the petitioner, and learned Assistant Government Pleader for Mines and Geology representing the respondents. In pursuance of a notification issued for right to carry on sand mining in River Godavari from 06.10.2002 to 30.09.2003 for Package No.7, the petitioner submitted his bid amount for a sum of Rs.27,27,117/-. The bid was knocked down in favour of the petitioner and he was given permission to lift the sand in three reaches, namely; Mandapalli, Kothapeta-Kedarilanka and Vadapalem. A temporary permit was given to the petitioner permitting him to lift sand from 10.11.2002 to 24.11.2002. The petitioner pleaded that though such temporary permit was granted, he could not avail the same and lift the sand on account of an order passed by this Court in a writ petition filed by certain third parties against sand mining. The petitioner further pleaded that in view of his inability for reasons beyond his control to carry on mining operations, respondent No.2 decided to accept his offer only in respect of Vadapalem and Mandapalli reaches up to 30.09.2003 for a sum of Rs.4,30,000/- and to return balance of the part bid amount of Rs.5,28,278/- to him. A consequential order is stated to have been issued by respondent No.2 to the above effect. The petitioner stated that as the respondents failed to return the amount, he repeatedly approached them by way of representations and legal notice. It is his case that respondent No.1, through his letter dated 05.10.2004 addressed to the petitioner, sent a cheque for Rs.1,67,295/-. The petitioner seeks refund of the balance amount out of Rs.5,28,278/- apart from the sum of Rs.4,50,000/- towards the EMD paid by him. Though nearly three years had elapsed from the time of filing of the writ petition, no counter-affidavits have been filed by the respondents. At the hearing, Sri S.Subba Reddy, learned counsel for the petitioner, submitted that it is not in dispute that his client has paid a sum of Rs.9,69,645/- being 50% of the reduced bid amount of Rs.19,16,557/- apart from Rs.4,50,000/- paid by him towards EMD. He also placed reliance on proceedings in Reference No.E4/3838/P7/2002 dated -03-2003 of the District Panchayat Officer and Member Convenor of respondent No.2 Committee in support of his contention that having accepted the fact that the petitioner was disabled from carrying on mining operations on account of the orders passed in a writ petition filed by third parties, the lease was modified by restricting the mining operations by the petitioner only to two sand reaches, namely; Vadapalem and Mandapalli and permitting previous lessee to operate the disputed reach namely; Kothapeta-Kedarilanka. He submitted that while the respondents have rightly decided to refund the sum of Rs.5,28,278/- after adjusting the sum of Rs.4,30,000/- towards the accepted bid amount for Vadapalem and Mandapalli reaches did not take into consideration the amount of Rs.4,50,000/- representing the EMD amount of the petitioner for its refund. He also submitted that having agreed that the sum of Rs.5,28,278/- should be refunded, there was no rationale in returning only a sum of Rs.1,67,295/-. A perusal of the proceedings of the District Panchayat Officer referred to above clearly supports the abovementioned submissions of the learned counsel for the petitioner. In paragraph 9 of the said proceedings, it is stated as under: “9. The District Level Committee met on 18.02.2003 and discussed the issue in detail and while observing that: a. When the ryots are not allowing the vehicles through the path (which is passing through their zerioty lands) in Kothapeta-Kedarilanka sand ramp it is not possible to do business by the bidder and naturally he will be loss. b. Moreover it is not appropriate time to take up survey by Revenue, Irrigation and Panchayat Raj Depts to decide the path, because almost all nearly half of the season has been completed and there will be only four months left to do business (since nobody should operate the reach during the months of June, July and August). c. As per the bid, the amount for the leftover period of operation for all the three sand reaches covered by this package will be Rs.9,92,368/- (Rs.27,27,117/- divided by 360 x 131 (from 20.2.2003 to 28.2.2003 (9 days), March, April, May and September (122 days)). d. Now the bidder has come forward to take up the reaches Vadapalem and Mandapalli for Rs.4,30,000/- (Rupees four lakhs and thirty thousand only) is a considerabale amount. e. Moreover the motto behind auctioning the sand reaches is to utilise the sand seigniorage funds for providing civic amenities to be public in general. If the issue is not finalised there will be loss of revenue to Government. and keeping in view of all these aspects into consideration it has been decided by the District Level Committee for sand auctions to accept th offer of the bidder Sri M.V.V.Satyanarayana to take up the Sand Reaches Vadapalem and Mandapalli up to 30.09.2003 for Rs.4,30,000/- and to return the remaining amount of Rs.5,28,278/- (Rs.9,58,278/- already paid by the bidder minus Rs.4,30,000/- now offered to operate reaches Mandapalli and Vadapalem) (Rupees five lakhs twenty eight thousand two hundred and seventy eight only).” None of the facts pleaded by the petitioner have been controverted by the respondents. The learned counsel for the petitioner submitted that the respondents have not given replies to any of the petitioner’s representations and legal notice dated 26.03.2007, wherein the petitioner claimed refund of a sum of Rs.8,22,365/-. From the above uncontroverted facts, I am of the view that the respondents are not justified in withholding the amounts due to the petitioner which comprises the balance amount of Rs.5,28,278/- which was decided to be refunded to the petitioner and the sum of Rs.4,50,000/- which was held up with the respondents towards the EMD of the petitioner. The learned counsel for the petitioner placed reliance on the judgment of this Court in Alluri Narayana Murthy Raju v. District Collector, Visakhapatnam District, Visakhapatnam and others[1], to substantiate the petitioner’s plea that the respondents are bound to return the proportionate lease amount where the contract gets frustrated. Having carefully gone through the said judgment, I am of the view that the ratio laid down therein squarely applies to the present case. As the respondents are stated to have refunded Rs.1,67,295/-, the petitioner is entitled to refund of the balance sum of Rs.3,60,983/- apart from Rs.4,50,000/- paid towards EMD. Accordingly, the writ petition is allowed with the direction to the respondents to refund the sum of Rs.8,10,983/- to the petitioner, within a period of one month from today. Failing which the respondents are liable to pay interest at the rate of 18% per annum after the expiry of the one month till the date of payment. As a sequel to disposal of main petition, WPMP No.26606 of 2007 is disposed of as infructuous. C.V.NAGARJUNA REDDY, J Dated 15th June, 2010 vrn [1] 2008 (6) ALD 103