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2011 DIGILAW 396 (UTT)

Darban Singh Dangi v. State of Uttarakhand

2011-06-30

TARUN AGARWALA

body2011
Judgment : The petitioner was granted a mining lease for a period of 20 years under Chapter IV of the Mineral Concession Rules, 1960 (hereinafter referred to as ‘the Rules’) over an area of 27.27 hectares to mine soap stone from the land situate at Rie Agar in Pargana Didihat, District Pithoragarh in the State of Uttarakhand. On 7th June, 2003, the petitioner applied for the renewal of the lease under Rule 24-A of the Rules on a reduced area of 5 hectares. The renewal application was rejected by the authority by an order of 26th June, 2004 indicating that the land owners are protesting against the renewal of the land and that an Enquiry Committee was set up which made a spot inspection and found that the mining had been done in an unscientific manner without considering the impact which it would have on the environment and that the passage for the villagers had been damaged and that the conditions of the lease had not been complied with. 2. The petitioner, being aggrieved, filed Writ Petition No. 253 of 2004 which was dismissed by an order of 25th August, 2006 on the ground of alternative remedy directing the petitioner to file a revision under Rule 54 of the Rules. Accordingly, the petitioner filed a revision, which was allowed by an order of 29th February, 2008 on the short ground that no opportunity of hearing was provided to the petitioner before passing the impugned order. Upon remand, the petitioner was directed to submit various information which he did and, various dates were fixed for hearing but no orders were passed which led the petitioner to file Writ Petition No. 2203 of 2009. This petition was disposed of by an order of 10th March, 2010 directing the authority to decide the matter within eight weeks. It is alleged that in spite of the direction, the matter was not decided and eventually, the petitioner had to file a contempt application and during the pendency of the contempt application, the application of the petitioner for renewal of the lease was rejected by an order on 27th August, 2010. The petitioner, being aggrieved by the said order, has filed the present writ petition. 3. Heard Sri Paresh Tripathi, the learned counsel for the petitioner and Sri Rakesh Thapliyal, the learned Additional Advocate General for the respondents. 4. The petitioner, being aggrieved by the said order, has filed the present writ petition. 3. Heard Sri Paresh Tripathi, the learned counsel for the petitioner and Sri Rakesh Thapliyal, the learned Additional Advocate General for the respondents. 4. The learned counsel for the petitioner contended that no opportunity of hearing was provided by the State Government while rejecting the application for the renewal of the lease. The learned counsel submitted that an opportunity to rebut the allegations made by the land owners ought to have been provided after the authorities made an attempt to verify the No Objection Certificates given by the land owners. The learned counsel further submitted that assuming without admitting that the consent was not given by the land owners, the same was redundant in view of the fact that the land owners had given their consent earlier at the time of the grant of the lease and consequently, no fresh consent was required to be obtained nor was the consent required to be reconsidered or verified in view of the provision of Rule 22(3)(i)(h) of the Rules. 5. On the other hand, the learned Additional Advocate General submitted that the petitioner has an alternative remedy of filing a revision before the Central Government under Rule 54 of the Rules which he could avail of and therefore, on this short ground, the writ petition was liable to be dismissed. The learned Additional Advocate General submitted that proper opportunity of hearing was provided as is clear from the impugned order and that the petitioner has nowhere alleged in the writ petition that he was not given a proper opportunity of hearing. Consequently, it is not open to the petitioner to urge that no proper opportunity of hearing was provided. The learned Additional Advocate General submitted that the impugned order clearly indicates the reasons for the refusal to renew the lease on account of many irregularities found which are mentioned in the impugned order itself and consequently, the learned Additional Advocate General prayed that the writ petition was devoid of merit and was liable to be dismissed. 6. The learned Additional Advocate General submitted that the impugned order clearly indicates the reasons for the refusal to renew the lease on account of many irregularities found which are mentioned in the impugned order itself and consequently, the learned Additional Advocate General prayed that the writ petition was devoid of merit and was liable to be dismissed. 6. In the light of the aforesaid, the Court finds that under Chapter IV of the Rules, the lease is required to be granted in which the mineral vest in the Government, that is to say, that the land does not belong to the Government but the minerals found below the land vest with the Government and a lease could be issued. The Rules provide that adequate compensation is paid to the land owners by way of royalty, etc. Rule 22 provides that a person may file an application for the grant of a lease. Rule 24-A provides for the renewal of the lease. Rule 22(3) provides the procedure for the renewal of a lease and Rule 22(3)(i)(h) provides that the consent is required to be taken from the land owners. The State Government may refuse to renew the lease under Rule 26. Rule 54 provides a remedy of filing a revision against the order of the State Government. In the light of the aforesaid, it would be appropriate to extract the provision of Rule 22(3)(i)(h) of the Rules. For facility, the said provision is extracted below:- “22(3)(i)(h)- a statement in writing that the applicant has, where the land is owned by him, has obtained surface rights over the area or has obtained the consent of the owners for starting mining operations : Provided that no such statement shall be necessary where the land is owned by the Government : Provided further that no such consent of the owner for starting mining operations in the area or part thereof may be furnished after execution of the lease deed but before entry into the said area : Provided also that no further consent would be required in the case of renewal where consent has already been obtained during grant of the lease. Provided that where any injunction has been issued by a Court of law or any other competent authority staying the recovery of any such mining dues; the non-payment thereof shall not be treated as a disqualification for the purpose of granting or renewing the said mining lease; Provided further that where a person has furnished an affidavit to the satisfaction of the State Government stating that he does not hold [and has not held] a mining lease, it shall not be necessary for him to produce the said valid clearance certificate : Provided also that the grant of a clearance certificate under sub-clause (d) shall not discharge the holder of such certificate from the liability to pay the mining dues which may subsequently be found to be payable by him under the Act or rules made thereunder. Provided that a properly sworn affidavit stating that no dues are outstanding shall suffice subject to the condition that the certificate required as above shall be furnished within ninety days of the date of application and the application shall become invalid if the party fails to file the certificate within the said ninety days.” 7. Before proceeding further, it would be appropriate to narrate the sequence of events which is culled out from the impugned order itself. The impugned order indicates that upon remand and pursuant to the direction of the High Court, the matter was heard on 3rd June, 2010 in the presence of the petitioner, on which date the petitioner produced the No Objection Certificates issued by the land owners contemplated under Rule 22 (3)(i)(h) of the Rules. On this basis, the State Government by an order of 11th June, 2010, directed the District Magistrate, Pithoragarh, to submit a report. It seems that on the directions of the District Magistrate, the ADM, in turn, directed the Tehsildar, who, in turn, directed the Patwari to verify the veracity of the No Objection Certificates. The Tehsildar submitted the report on 23rd June, 2010 based on the verification made by the Patwari verifying 17 certificates issued by the land owners giving their consent for the renewal of the lease. The Tehsildar submitted the report on 23rd June, 2010 based on the verification made by the Patwari verifying 17 certificates issued by the land owners giving their consent for the renewal of the lease. The impugned order indicates that the ADM was not satisfied with it and subsequently, directed fresh verification, on the basis of which, the Tehsildar submitted a fresh report on 6th July, 2010 indicating that 12 land owners had given their consent for renewal, but 8 land owners had objected to the renewal of the lease. The first report of the Tehsildar dated 23rd June, 2010 was forwarded by his letter of 14th July, 2010 and the second report of the Tehsildar dated 6th July, 2010 was forwarded by the District Magistrate to the State Government by its letter dated 13th July, 2010. 8. In view of two contradictory reports, the State Government, by an order dated 30th July, 2010, directed the District Magistrate to verify the facts afresh and based on that direction, the District Magistrate submitted a report on 9th August, 2010 on the basis of the report of the ADM dated 6th August, 2010. The ADM in the first report of 6th August, 2010, indicated that the report of the Tehsildar dated 23rd June, 2010 was not prepared on the basis of the actual inspection and that the second report of the Tehsildar dated 6th July, 2010 was made on the basis of a spot inspection. The ADM further contended that the Revenue Inspector was sent to the spot to verify the genuineness of the No Objection Certificates and that the Inspector found that the No Objection Certificates submitted earlier by the petitioner were from those persons who were not staying in the area concerned but living far away in Delhi and in Bombay and some of them were not even staying there for the last three years. Further, some of the No Objection Certificates were from the land owners of village Rie Agar, whereas the mining was being done in village Belda Agar and consequently, No Objection Certificates filed earlier by the petitioner was of no consequences. The report also indicated that 18 land owners of village Belda Agar had objected to the renewal of the lease. 9. The report also indicated that 18 land owners of village Belda Agar had objected to the renewal of the lease. 9. The report of the ADM dated 6th August, 2010 was forwarded by the District Magistrate to the Government by its letter of 9th August, 2010, on the basis of which, the State Government by an order of 13th August, 2010, directed the District Magistrate to take action against the erring officials who had filed a false report. Based on the directions of the State Government, the District Magistrate submitted a fresh report on 17th August, 2010 indicating that on the basis of fresh inspection made by the ADM who personally met the objectors of village Belda Agar, who confirmed that they had filed their earlier objections and that four of these land owners contended that the land excavated by the petitioner was done in such a way that it could no longer be used for agricultural purpose and that no compensation was paid nor any employment was given to them. The report also suggested that other land owners of the village also came who indicated that the mining operations were being carried out through machines, namely, JCB, which created large holes which are still existing and have not been filled up thereby putting the lives of the children and villagers in danger during the rainy season. The report further indicated that on account of illegal excavation, the passage for the village had been damaged and further indicated that the petitioner had subleased the mining work to others who were mining the area illegally. 10. In view of the reports submitted by the District Magistrate, the State Government was of the opinion that the land owners having not given their consent, the lease cannot be renewed in favour of the petitioner and consequently, rejected the application. 11. In the light of the aforesaid findings given in the impugned order, the learned counsel for the petitioner submitted that no opportunity of hearing was provided to the petitioner. The learned counsel submitted that the report submitted by the District Magistrate ought to have been provided to him and an opportunity to rebut these allegations should have been given which admittedly were not given as is clear from the impugned order itself. The learned counsel submitted that the report submitted by the District Magistrate ought to have been provided to him and an opportunity to rebut these allegations should have been given which admittedly were not given as is clear from the impugned order itself. The Court finds from the impugned order that the hearing was done on 3rd June, 2010, on which date, the petitioner was provided an opportunity of hearing and on which date, the petitioner produced the No Objection Certificates. These certificates were required to be verified which the State Government did directing the District Magistrate to submit a report. One of the reports of the Tehsildar dated 23rd June, 2010 was produced by the petitioner himself vide his letter dated 14th July, 2010. These facts have not been controverted by the petitioner in the writ petition, therefore, it gives a clear indication that the petitioner was pursuing and following the matter with regard to the verification of the No Objection Certificates being done by the authorities. The petitioner himself produced the report of the Tehsildar dated 23rd June, 2010 because the said report was admittedly in his favour but when the ADM did not agree and called for a fresh report, the same was done and submitted before the State Government. These facts clearly indicate that the petitioner was aware of the proceedings. The question of rebutting the findings given by the revenue authorities did not arise as the petitioner himself was following the matter. 12. In any case, the Court is of the opinion that the opportunity of hearing was provided and the consent letters produced by the petitioner were only required to be verified which had been done, in which it was found that the land owners had objected and had not given their consent. It has been found that certain No Objection Certificates were of those persons who were not residing there for several years. These findings have not been controverted by the petitioner before this Court and only an averment has been made that the land owners who objected are the alleged owners of a small piece of land which can be excluded while renewing the lease. These findings have not been controverted by the petitioner before this Court and only an averment has been made that the land owners who objected are the alleged owners of a small piece of land which can be excluded while renewing the lease. In the light of the aforesaid coupled with the fact that there is no averment in the writ petition alleging that proper opportunity of hearing was not given, the contention of the petitioner cannot be accepted by this Court. It is trite law that the petitioner is required to make a specific averment in his petition, without which, it is not possible to consider such contention. Consequently, the Court is of the opinion that the contention of the petitioner that no proper opportunity of hearing was provided to the petitioner cannot be accepted. 13. The learned counsel submitted that the petitioner was not required to produce a fresh consent from the land owners for the purpose of the renewal of the lease when consent from the land owners had already been obtained at the time of the grant of the lease which was sufficient and in this regard, the petitioner has relied upon the provision of Rule 22(3)(i)(h) of the Rules. Necessary averments in this regard have been made in paragraphs 23 and 24 of the writ petition. In paragraph 23, it has been stated that the petitioner had taken the consent from the villagers at the time of getting the mining lease and in paragraph 24, it has been stated that since consent of the land owners was taken at the time of the grant of the lease, no fresh consent was required. 14. In my opinion, the contention of the learned counsel for the petitioner is patently misconceived and bereft of merit. A perusal of Rule 22(3)(i)(h) and its proviso indicates that the consent of the land owners is required to be obtained at the time of the grant of the lease and for starting mining operations and that a fresh consent is required to be obtained where a lease is required to be renewed. The third proviso to clause (h) clearly indicates that where consent had been obtained during the grant of the lease, no fresh consent is required to be obtained for the purpose of the renewal of the lease. The third proviso to clause (h) clearly indicates that where consent had been obtained during the grant of the lease, no fresh consent is required to be obtained for the purpose of the renewal of the lease. The said proviso indicates that the words “where consent has already been obtained during grant of the lease” indicate consent taken during the subsistence of the lease and not the consent taken prior to the execution of the lease for mining operation. There is a distinction between obtaining consent for starting mining operations which is required to be obtained before the lease is executed and for renewal, a fresh consent is required to be obtained. Consequently, the contention of the petitioner that since the petitioner had already obtained the consent from the land owners at the time of the grant of the lease, no fresh consent was required to be taken, is patently erroneous and cannot be accepted. 15. The Court further finds that even though no specific averment has been made in the writ petition as to when the consent letters were obtained by the petitioner from the land owners, but from the documents annexed in the writ petition, one finds that the consent letters were of February, 2004 and June, 2010. Two sets of the consent letters were obtained by the petitioner after the expiry of the lease and not during the grant of the lease. In the light of this, it became essential for the State Government to verify the consent letters. The Court finds that the land owners who were living at the spot had vehemently objected to the renewal of the lease. The land belongs to the private owners and their consent is mandatory. It is only when the consent is given by the land owners, that the State Government could proceed to renew the lease. Since the land owners had objected to it, the State Government could not renew the lease in favour of the petitioner. In the light of the aforesaid, the Court finds that equity is not in favour of the petitioner. 16. The writ petition, consequently, fails and is dismissed.