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2005 DIGILAW 1038 (ALL)

Ansuiya, Dulare v. State of Uttar Pradesh

2005-05-25

ARUN TANDON

body2005
ARUN TANDON, J. ( 1 ) HEARD Sri Dev Prakash Singh Advocate on behalf of Raj Bahadur in both the writ petitions, sri Mukesh Prasad Advocate on behalf of Ansuiya in both the writ petitions and Standing counsel on behalf of the State respondents. ( 2 ) SMT. Ansuiya claims to have been granted a mining lease of sand/morrum under Chapter-II of the Uttar Pradesh Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as 1963 rules) in respect of Plot No. 60, Khasra No. 1/1, measuring 15 acres for the period of three years w. e. f. 1. 1. 2001. Even prior to the expiry of the said period, the petitioner moved an application for renewal of his mining lease on 31st December, 2003 with reference to Rule 6-A of the 1963 rules. It is claimed that the lease was renewed for a period of three years and a fresh lease deed in form MM-3 was executed in favour of the petitioner on 29th June, 2004. ( 3 ) DESPITE the aforesaid, necessary form MM-11 was not issued to the petitioner despite his request in writing. As a matter of fact, on 27thaugust, 2004 the Mines Officer, Ch akoot required the petitioner to deposit a sum of Rs. 5,36,625/- as arrears of royalty. It is in these circumstances petitioner Ansuiya filed Writ Petition No. 44128 of 2004 before this Honble court for writ of mandamus commanding the State Authorities to issue MM-11 to Smt. Ansuiya. The writ petition was disposed of with a condition that if the petitioner deposits her dues within 10 days, his application for issuance of MM-11 shall be decided in accordance with law. The petitioner served a copy of this order upon the District Magistrate. Still MM-11 was not issued. She therefore approached the Commissioner after depositing requisite amount. However, on 4th april, 2004 the District Magistrate passed an order whereby the renewed lease in favour of the petitioner (Ansuiya), under the order of the District Magistrate dated 19th May, 2003, was cancelled on the ground amongst other that the petitioner was involved in illegal mining and was in arrears of Government dues to the tune of Rs. 5,36,625/ -. ( 4 ) FEELING aggrived by the aforesaid order, the petitioner Ansuiya preferred an appeal under Rule 77 of the 1963 Rules. The appeal so filed was numbered as Appeal No. 01 of 2004-05. 5,36,625/ -. ( 4 ) FEELING aggrived by the aforesaid order, the petitioner Ansuiya preferred an appeal under Rule 77 of the 1963 Rules. The appeal so filed was numbered as Appeal No. 01 of 2004-05. In the said appeal, the Commissioner on 5th November, 2004 passed in interim order whereby the operation of the order dated 16th October, 2004, passed by the District Magistrate was stayed. Respondent nos. 4 and 5 Sri Raj Bahadur and Dwarika Prasad filed an impleadment application as well as an application for recall of the stay order dated 5. 11. 2004 in the said appeal. The appellate Authority, by means of the order dated 24th February, 2005 vacated the interim order dated 5. 11. 2004. ( 5 ) FEELING aggrieved by the aforesaid order, the petitioner Ansuiya filed Writ Petition No. 16455 of 2005 before this Court. The writ petition was allowed and the order dated 24th February, 2005 was quashed. on the ground of violation of principles of natural justice. The Appellate Authority was directed to decide the application filed by Dwarika Prasad and Raj Bahadur afresh by means of reasoned speaking order. The Commissioner by means of the order dated 24. 3. 2005 reaffirmed the interim order dated 5. 11. 2004 with a further direction that the respondent authority shall not interfere with the mining rights of the petitioner till the expiry of the term of the renewed lease qua the illegal mining done by Smt. Ansuiya, a pen y of Rs. 20,000/- was directed to be paid in addition to the amount, which may be due against the petitioner. The appeal was accordingly consigned to record. Against the said order of the Commissioner dated 24th March, 2005 passed in Appeal No. 1/2004-05, two writ petitions have been filed. One by ansuiya, being Writ Petition No. 27061 of 2005 and the other by Raj Bahadur, being Writ petition No. 37074 of 2005. Writ Petition No. 27061 of 2005 ( 6 ) SO far as the writ petition filed by Smt. Ansuiya is concerned, the relief prayed for is confined to the prayer that the order of the Commissioner, in so far as it directs deposit of 20,000/- as penalty as well as the order permitting impleadment of respondent nos. 4 and 5 Raj Bhadur and dwarika Prasad may be quashed. 4 and 5 Raj Bhadur and dwarika Prasad may be quashed. Writ Petition No. 37074 of 2005 ( 7 ) SO far as the Writ Petition No. 37074 of 2005 is concerned, the petitioner Raj Bahadur has prayed for quashing of the entire order passed by the Commissioner on the following ground (a)The Appellate Authority has consigned the appeal to the records without deciding the appeal on merit itself, (b) The Commissioner has totally ignored the findings recorded by the District magistrate while quashing the renewal granted in favour of the petitioner specifically with reference to the illegal mining being effected by Smt. Ansuiya, (C) Illegal mining was being carried out by the petitioner, is well established from the order of the Commissioner also inasmuch as Commissioner has provided for imposition of penalty of 20,000/-against the petitioner for such illegal mining. It is submitted that no orders for issuance of MM-11 to a person, who has done illegal mining, could have been issued by the Commissioner, (d) the fact that the petitioner was in arrears of Government revenue on the date she had obtained the renewal of his lease for a further period of three years to be precised on 29th June, 2004 is now an admitted position in view of the statement made by the petitioner. ( 8 ) I have heard counsel for the parties and have gone through the records of the writ petition. ( 9 ) SMT. Ansuiya in paragraph 14 of her writ petition has admitted that a sum of Rs. 5,36,625/was deposited by her subsequent to the order of this Court dated 15. 10. 2004, copy whereof was issued to petitioner only on 16th October, 2004. The finding of the District Magistrate that on the date the petitioner had obtained renewal of her lease, she was in arrears of government revenue is further established by the averment in paragraph 19 of the counter affidavit filed on behalf of smt. Ansuiya in Writ Petition No. 37074 of 2005, wherein in paragraph 19 it has been stated as follows : "that the contents of paragraph 22 of the writ petition as they stand are not admitted and in reply it is submitted that the respondent No. 4 had deposited the amount prior to passing of the order dated 16. 11. 2004, hence there was no concealment by the respondent No. 4. 11. 2004, hence there was no concealment by the respondent No. 4. Moreover, the respondent No. 4 had himself written to the Commissioner, Chitrakoot Dham, Bnada on 7. 10. 2004 requesting him to get the amount of Rs. 5,36,625-00 deposited, since the same was not being accepted by the District Magistrate. " ( 10 ) IT is thus proved beyond reasonable doubt that on the date Smt. Ansuiya had obtained renewal of her lease i. e. on 29th June, 2004 (reference paragraph 5 of the Writ Petition No. 27061 of 2005), petitioner was in arrears of State revenue and therefore totally ineligible for any lease of minor minerals being granted or renewed in her favour under the Rules of 1963. ( 11 ) ON 16th October, 2004 itself the District Magistrate had passed the order cancelling the renewal granted in favour of the petitioner on the ground of being in arrears of Government revenue and being involved in illegal mining. Counsel for the petitioner Sri Mukesh Prasad contested the contention raised on behalf of Sri Raj Bahadur with regards to illegal mining. However, he has admitted that the deposit of Rs. 5,36,625/- was made subsequent to the order of district Magistrate dated 16th October, 2004. Sri Mukesh Prasad has not been able to demonstrate before this Court that the said amount of Rs. 5,36,625/-was illegally demanded from the petitioner nor any facts have been referred to by the counsel quo the demand of said outstanding dues. ( 12 ) SIMILARLY, from the records of the present writ petition, the Court is satisfied that the finding recorded by the District Magistrate that the petitioner was involved in illegal mining of the minor minerals, is based on material evidence. The said finding of the District Magistrate stands affirmed under order of the Commissioner dated 18th February, 2005, whereby Smt. Ansuiya has been directed to deposit a further sum of Rs. 20,000/- as penalty towards illegal mining. The commissioner could not have permitted a person like Smt. Ansuiya (involved in illegal mining)to continue his illegal acts by permitting issuance of MM-11 after quashing the cancellation order. 20,000/- as penalty towards illegal mining. The commissioner could not have permitted a person like Smt. Ansuiya (involved in illegal mining)to continue his illegal acts by permitting issuance of MM-11 after quashing the cancellation order. ( 13 ) IN view of the aforesaid facts, the order passed by the Commissioner dated 24th March, 2005 cannot be legally sustained, in so far as it permits issuance of MM-11 in favour of Smt. Ansuiya, who was admittedly a defaulter and was involved in illegal excavation of minor minerals. Accordingly, the order passed by the Commissioner dated 24th March, 2005 is hereby quashed. ( 14 ) ON behalf of Smt. Ansuiya it is contended that Raj Bhadur, whose lease term has already expired, is still illegally mining the minor and minerals with the help of the authorities concerned and in that regard reference has been made to the report of Sub Divisional Magistrate dated 24th july, 2004, copy whereof has been enclosed as Annexure-CA-I of the counter affidavit filed in writ Petition No. 37074 of 2005. It is therefore submitted that persons like Raj Bahadur, who has filed Writ Petition No. 37074 of 2005 cannot be permitted to invoke extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. ( 15 ) IN the facts and circumstances of the case, as noticed herein above, petitioner Ansuiya, being involved in illegal mining as well as being a defaulter of government revenue on the date she has obtained renewal of the lease and similarly the lease granted in favour of Raj Bahadur having expired, neither Smt. Ansuiya nor Sri Raj Bahadur are entitled to be permitted to carry on excavation of minor minerals under the Uttar Pradesh Minor Minerals (Concession) Rules, 1963. Accordingly, it is directed that neither Smt. Ansuiya nor Raj Bahadur shall be permitted to carry on the excavation of minor and minerals and the District Authorities shall ensure the compliance of the aforesaid direction in letter and spirit. It is further directed that the grant of lease for minor minerals in respect of future years may be effected strictly in accordance with the Uttar Pradesh minor Minerals (Concession) Rules, 1963. ( 16 ) WITH the observations made herein above writ petitions stand disposed of. . .