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2008 DIGILAW 194 (ALL)

Dwarika Prasad v. State of U. P.

2008-01-25

SUNIL AMBWANI

body2008
JUDGMENT : Sunil Ambwani, J. 1. Heard Shri S.P. Singh, learned Senior Advocate assisted by Shri Deo Prakash Singh and Shri Arvind Srivastava for the petitioner and learned Standing Counsel for the State. Shri U.N. Sharma, Senior Advocate assisted by Shri Mukesh Prasad appears for respondent No. 4. 2. A mining lease was settled with the petitioner, in an auction of 80 acres of area in Division No. 2, Araji No. 17 situate in Village Red; Bhusauli, Distt. Chitrakoot, on the highest bid of Rs. 35 lacs. The Addl. District Magistrate (F & R), Chitrakut submitted a report of the auction on 24.12.2002 to the District Magistrate, Chitrakut, on which the petitioner deposited 25% of the bid amount on the same day. The remaining 25% was to be deposited in next 30 days, and the balance amount was to be spread over in instalments. The bid with requisite documents were forwarded to the State Government on 24.12.2002. The State Government approved the auction on 10.1.2003. 3. One Shri Ram Milan filed Writ Petition No. 13156 of 2003 challenging the auction. On 27.3.2003 while entertaining the writ petition the parties were directed to maintain status quo. This writ petition was withdrawn by the petitioner on 8.8.2003. 4. It is alleged that the order of the State Government approving the lease was communicated by the District Magistrate to the petitioner by his notice dated 14.1.2003, for execution of the lease deed. The petitioner deposited the demarcation fees along with map on 20.9.2003. The lease deed was to be executed under Rule 29 of the U.P. Minor, Minerals (Concessions.) Rules, 1963 within a period of one month, or such further period as the District Officer or the Committee may have allowed. The consequences of default on the part of the bidder in Rule 29 (2) are that the sanction is to revoke and forfeit the sanction of the bid. The period of lease is to be calculated with effect from the receipt of the letter of acceptance of the bid or the tender by the bidder or the tenderer. In this present case the letter of acceptance was issued on 14.1.2003. 5. It is alleged that the petitioner purchased the stamp papers of the value of Rs. 8,80,000/- from the treasury on 31.3.2003, and deposited the same with the District Magistrate (F & R), Chitrakut on the same day. In this present case the letter of acceptance was issued on 14.1.2003. 5. It is alleged that the petitioner purchased the stamp papers of the value of Rs. 8,80,000/- from the treasury on 31.3.2003, and deposited the same with the District Magistrate (F & R), Chitrakut on the same day. It appears that thereafter another writ petition was filed by one Shri Raj Bhushan Dwivedi being No. 36791 of 2003 challenging the auction proceedings in which while issuing notices, an order was made on 27.8.2003 to the effect that the auction shall be subject to the result of the writ petition. The writ petition is still pending. 6. The petitioner was served with a notice dated 26.9.2003 by the Addl. Distt. Magistrate (F & R), Chitrakut stating that the petitioner has not filed the requisite stamps for execution of the lease deed and thus he is given a last opportunity to get the lease deed executed within 10 days, failing which the security amount was to be forfeited and approval be cancelled. The petitioner submitted a reply on 5.11.2003 stating that he had purchased and deposited the stamp paper on 31.3.2003 and that due to the filing of the writ petition and the status quo order the matter was pending and lease deed could not be executed. A show-cause notice was issued to the petitioner on 5.11.2003 to reply within 30 days as to why approval be not cancelled and bid amount be not forfeited for failure of execution of the lease deed. The petitioner submitted his reply to the notice on 15.12.2003 stating that he had deposited the stamp papers within the prescribed period. The District Magistrate by his order dated 30.1.2004 rejected petitioner's representation dated 15.12.2003, with the findings that stamp papers were not filed in the office nor any receipt was submitted, cancelled the approved lease and forfeited the amount of Rs. 17,50,000/-. 7. The petitioner did not challenge the order of the District Magistrate dated 30.1.2004 for two years and five months. He firstly filed a writ petition against the order on 27.4.2006, which Writ Petition No. 23054 of 2006 was dismissed on 27.4.2006 directing the petitioner to approach the Appellate Authority with a prayer to decide the interim application. 17,50,000/-. 7. The petitioner did not challenge the order of the District Magistrate dated 30.1.2004 for two years and five months. He firstly filed a writ petition against the order on 27.4.2006, which Writ Petition No. 23054 of 2006 was dismissed on 27.4.2006 directing the petitioner to approach the Appellate Authority with a prayer to decide the interim application. A direction was also issued to the Appellate Authority that it will decide the interim, application as expeditiously as possible but not later than three weeks from the receipt of the order, and that till that time the mining area shall not be settled with any person. The appeal against the order dated 30.1.2004 was filed on 10.7.2006. 8. An objection was taken to the maintainability of the appeal on the ground of delay of more than 2 years and 5 months. The Commissioner did not consider the objection and proceeded to decide the appeal with the observation that it is in the interest of justice to hear the appeal, and then recorded a finding that in pursuance of his direction to find out stamp papers, the Addl. District Magistrate (F & R) reported that the petitioner has not used these stamps purchased on 31.3.2003 for any other purpose. He, thereafter, issued another letter stating that now the stamp papers have been found in the office. Allowing the appeal the Commissioner observed that the lease deed may be restored for mining for a period of 30 years. He then directed the District Magistrate to decide the matter again on merits. 9. The respondent No. 4 challenged the order before the State Government. Notices were issued to the petitioner. The petitioner had appeared before the Revisional Authority. The Secretary, Industrial Development, U.P. exercising delegated powers of the State Government to decide the revision took the matter very seriously. He took into account the letter of the Addl. District Magistrate dated 8.12.2006, which referred to his talks with the Commissioner dated 6.12.2006, for finding out the stamp papers and reported that upon a fresh search made in the office, these papers were found at a distance of 3 feet from the door on the floor in a separate room in the campus of the office of the mining section. He further observed that these papers when found did not gather any dust nor were looking old. He further observed that these papers when found did not gather any dust nor were looking old. The room in which these were found was used for storing material, and had fallen to disuse. It was not opened regularly. The roof of the room was leaking and in such case it was not possible, that the stamp papers could be found in fresh condition after more than three years of its purchase. The Secretary, Industrial Development directed an enquiry to be made into the matter and recorded a finding that the petitioner did not deposit the stamp papers on 31.3.2003 or within specified time and somehow planted these papers from under the door in the room in an improper manner. While setting aside the order of the Commissioner the order of the District Magistrate was restored, and he was directed to proceed afresh in accordance with law. 10. Shri S.P. Singh, learned Counsel for the petitioner contends that the purchase of stamp papers was not denied. The time for deposit of stamp papers was extended by the District Magistrate and that once the stamp papers were found, the petitioner cannot be taken to be at fault to cancel the bid under Rule 29 of the Rules of 1963. The petitioner is not going to gain anything out of the allegations. He had deposited Rs. 17.5 lacs as bid amount and the stamp papers of Rs. 8.8 lacs and has not mined the area so far. He was not given an opportunity to lead the evidence. The letter of Addl. District Magistrate dated 6.12.2006 was not given to him for comments. It is submitted that the initiation of notice as well as the order of the State Government was illegal and is liable to be set aside. 11. Shri Umesh Narain Sharma on the other hand submits that the petitioner and his associates had acquired more and larger areas for mining in the year 2003, and concentrated their men and material in those areas. For reasons best known to the petitioner, he did not deposit the stamp papers. The letter of receipt appears to be prepared subsequently for the purposes of the case. It was not filed before the District Magistrate. The Commissioner brushed aside their objections about die delay in filing the revision. For reasons best known to the petitioner, he did not deposit the stamp papers. The letter of receipt appears to be prepared subsequently for the purposes of the case. It was not filed before the District Magistrate. The Commissioner brushed aside their objections about die delay in filing the revision. The Commissioner had no jurisdiction to condone the delay of 2 years and 5 months in filing the appeal. Section 5 of the Limitation Act does not apply to appeals under U.P. Minor Mineral (Concession) Rules, 1963. He has relied upon the judgment of this Court in Deo Raj v. State of U.P. and others, Writ Petition No. 1255 of 2005 decided on 3.3.2005 in which this Court has held that the authorities under the U.P. Minor Minerals (Concessions) Rules, 1963 are not Courts and that the Limitation Act, has not been made applicable by the Act or the Rules to the appeals and revisions. Section 5 of the Limitation Act would have application only if the competent authority is Court or that the statute provides for reference of Limitation Act. 12. Section 29 of the U.P. Minor Minerals (Concession) Rules, 1963 provides as follows:- "29. Execution of lease deed-(1) When a bid or offer is finally accepted a lease deed in respect of auction lease in Form MM-6 and in respect of tender or auction-cum-tender lease in a form as near thereto as the circumstances of each case may require shall be executed within one month of the receipt, by the bidder or the tenderer of the letter of acceptance or within such further period as the District Officer or the Committee, as the case may be, allow in this behalf. If no such deed is executed within the aforesaid period, due to any default on the part of the bidder or the tenderer the order accepting the bid or tender shall stand revoked and in that even the security deposited by the bidder or the tender shall be forfeited to the State Government. (2) The period of the lease shall be calculated with effect from the date of receipt of the letter of acceptance of the bid or the tender by bidder or the tenderer. (2) The period of the lease shall be calculated with effect from the date of receipt of the letter of acceptance of the bid or the tender by bidder or the tenderer. (3) A copy of the lease deed together with the map of the area shall be sent by the District Officer or the Committee, as the case may be, to the Director, Geology and Mining, Uttar Pradesh with fifteen days from the date of execution thereof." 13. I have gone through the record and find that though the petitioner had stated before the District Magistrate that he has submitted stamp papers, he could not produce the receipt before him. He challenged the order of the District Magistrate dated 30.1.2004 by filing the appeal before the Commissioner of the Division on 10.7.2006 under U.P. Minor Minerals (Concessions) Rules, 1963. There was a delay of 2 years 5 months and 10 days in filing the appeal. The objection regarding delay and maintainability of the appeal was taken before the Commissioner but the Commissioner brushed it aside on the ground that it was in the 'interest of justice' to hear the appeal without discussing the grounds or giving any reasons to condone the delay. The Commissioner had no jurisdiction to condone the delay in filing of the appeal. Section 5 of the Limitation Act did not apply to the proceedings. Though the State Government also did not discuss the issue, it is apparent that the Commissioner acted beyond his authority conferred upon him by the statute, in firstly condoning the delay without any authority and giving any reason or reasoning, and thereafter deciding the appeal-only on the ground that the stamp papers were discovered. He did not even care to mention as to how the stamp papers were found and whether these stamp papers were infact filed on 31.3.2003, when these were purchased. The Commissioner adopted a wholly casual approach in deciding the appeal. 14. In Deo Raj v. State of U.P. and others (supra) this Court examined the applicability of the Limitation Act to the revision filed by the State Government as statutory authority. Relying upon P. Sarthy v. State Bank of India, (2000) 5 SCC 355 , it was held that the provisions of condonation of delay under section 5 of the Limitation Act are not applicable to the proceedings. 15. Relying upon P. Sarthy v. State Bank of India, (2000) 5 SCC 355 , it was held that the provisions of condonation of delay under section 5 of the Limitation Act are not applicable to the proceedings. 15. The submission that the time for filing stamp papers was extended by the District Magistrate under Rule 23 of the Rules of 1963 and thus the consequences of Rule 29 will not be attracted is not a correct proposition. The bid was approved on 10.1.2003 and the approval of the State Government was communicated on 14.1.2003. The petitioner was required to deposit the stamp papers for execution of the lease deed under Rule 29, within 30 days. The extension of time, if any, could only be granted within the period in which the stamp papers were required to be deposited for execution of lease deed. This period could not be extended after six months. 16. The reasons for which the petitioner did not submit stamp papers are not known nor the Court would like to investigate the facts. Although the contesting respondent has made an attempt to provide these reasons but it is not necessary to make any comments on them. 17. It is suffice to say that the petitioner was grossly negligent in pursuing the matter for execution of the lease deed and in filing the appeal. The reasons for which he delayed execution of the lease deed, are not relevant for the purposes of this case. 18. In the end Shri S.P. Singh submitted that the respondents did not have locus standi to challenge the appellate orders in revision and that in fact they want to take benefit of the change of policy in the rules. The rules were amended giving up auction to settle the mining leases and providing for policy of 'first come first serve'. The amendment to the "rules have been upheld by this Court in Writ Petition No. 5033 of 2005, Brajesh Singh v. State of U.P. and others decided on 4.2.2005. 19. Any person aggrieved by lease or its consequence under the rules could have filed an application before the District Magistrate. The contesting respondent simply informed the State Government with the consequence of failure to execute the lease deed within a period of one month from the date of its approval and the consequent loss to the State Government. 19. Any person aggrieved by lease or its consequence under the rules could have filed an application before the District Magistrate. The contesting respondent simply informed the State Government with the consequence of failure to execute the lease deed within a period of one month from the date of its approval and the consequent loss to the State Government. The action was initiated by the District Magistrate and it was the State Government, which ultimately found that the order of the Commissioner could not be sustained. 20. The writ petition is dismissed. The original stamp papers alleged to be discovered from the office of the District Magistrate, shall be returned to the petitioner, on his making application for the same.