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2017 DIGILAW 2970 (ALL)

SUNIL KUMAR MISHRA v. UNION OF INDIA

2017-12-18

DEVENDRA KUMAR UPADHYAYA, RAJESH SINGH CHAUHAN

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JUDGMENT : DEVENDRA KUMAR UPADHYAYA, J. 1. Heard Sri Amol Kumar, learned counsel for the petitioner, learned Standing Counsel representing the State-respondents and Sri A.Z. Siddiqui, learned counsel appearing for Lucknow Development Authority. 2. The petitioner appears to have applied for grant of mining permit for excavating the earth on certain land situate in village Alinagar Sunehra, Pargana Bijnor, Tehsil Sarojini Nagar, Lucknow which was required in connection with construction of retaining walls, buildings and other allied works in relation to doubling of Alamnagar-Utratia bypass railway line of Lucknow Division of Northern Railway. The petitioner was accordingly granted mining permit, a copy of which has been annexed as annexure No. 1 to the writ petition. According to the said permit, the petitioner was given permission for excavation of 55,000 cubic meter of earth between 25.02.2017 to 24.05.2017. The petitioner was granted the said permit after depositing a sum of Rs. 16,50,000/- towards royalty and also another sum of Rs. 16,50,000/- to the Nagar Nigam. The petitioner started excavation work pursuant to the said permit granted to him, however, on 06.04.2017, the police authorities of local Police Station concerned stopped the petitioner from excavating the earth. 3. It is on record (annexure CA-1 annexed with counter affidavit filed by Nagar Nigam) that the Officer In-charge (Mining) in the office of District Magistrate, Lucknow wrote a letter to the Additional Municipal Commissioner, Nagar Nigam, Lucknow that some information has been received that the petitioner has been violating the terms of the mining permit and as such an inquiry be conducted and accordingly appropriate action be taken against the petitioner. 4. It appears that pursuant to the said letter dated 06.04.2017 written from the office of District Magistrate to the Additional Municipal Commissioner, the authorities of the district administration and Nagar Nigam took some action which has resulted in stoppage of work of excavation by the petitioner on the direction of the local police authorities w.e.f. 06.04.2017 itself. 5. 4. It appears that pursuant to the said letter dated 06.04.2017 written from the office of District Magistrate to the Additional Municipal Commissioner, the authorities of the district administration and Nagar Nigam took some action which has resulted in stoppage of work of excavation by the petitioner on the direction of the local police authorities w.e.f. 06.04.2017 itself. 5. The fact that the police authorities of Police Station Krishna Nagar had stopped the petitioner from excavating the earth is clear from Clauses 2 and 3 of the letter dated 22.06.2017 written by the District Magistrate, Lucknow to the Principal Secretary of the State Government in the Department of Geology and Mining wherein it has clearly been indicated that the police personnel of Police Station Krishna Nagar had stopped the excavation work on the spot on 06.04.2017 itself. The Additional Municipal Commissioner thereafter wrote a letter to the Officer In-charge (Mining) in the office of District Magistrate, Lucknow stating therein that after inquiry, it was found that the petitioner had excavated only 14,663 cubic meter of earth though the permit granted to him was for the quantity of 55,000 cubic meter. 6. It appears that after inquiry, it was found that no illegality in excavation was committed by the petitioner pursuant to the mining permit granted to him. However, on account of stoppage of work at the instance of police authorities and also on the strength of letter dated 28.04.2017 issued by the Nagar Nigam, Lucknow to the petitioner (annexure No. 6 to the writ petition), the petitioner could not excavate the entire earth which has resulted in the work of laying of railway track being put to a halt. 7. The petitioner appears to have approached the authorities and it is in background of the aforementioned facts that the District Magistrate, Lucknow has written a letter on 22.06.2017 to the State Government bringing to its notice that despite the entire royalty amount having been deposited by the petitioner, he could excavate only 14,663 cubic meter of earth out of the total permitted volume of earth of 55,000 cubic meter on account of the fact that the petitioner was stopped from excavating the earth w.e.f. 06.04.2017. The said letter also states that after inquiry, the Additional Municipal Commissioner, Lucknow has permitted the petitioner on 24.05.2017 to excavate rest of volume of earth i.e. 40,337 cubic meter. The said letter also states that after inquiry, the Additional Municipal Commissioner, Lucknow has permitted the petitioner on 24.05.2017 to excavate rest of volume of earth i.e. 40,337 cubic meter. It has also been stated by the District Magistrate in the said letter dated 22.06.2017 that on account of stoppage of work by the police, the petitioner could not execute the excavation work w.e.f. 06.04.2017 to 24.05.2017 i.e. for a period of 49 days. It is also relevant to observe at this juncture that the term of mining permit lasted on 24.05.2017 and it is on account of these facts that the District Magistrate had written the letter dated 22.06.2017 seeking appropriate instructions/guidance from the State Government. 8. The State Government, however, without taking into account the facts and reasons which forced the petitioner, without there being any fault on its part, to stop the excavation work has written the letter dated 12.07.2017 to the District Magistrate, Lucknow informing him that there is no provision under the Rules for extension of the term of mining permit for obstructed period. The District Magistrate has accordingly been directed by the State Government to decide the matter. 9. It has been contended by learned Standing Counsel representing the State-respondents that mining permits are granted under Chapter-VI of Uttar Pradesh Minor Minerals (Concession) Rules, 1963 and according to Rule 55 a mining permit issued is valid until the date of expiry of the period specified in the permit or till such date when the permitted quantity of the mineral is removed, whichever is earlier. He has further stated that the permit was valid in the instant case till 24.05.2017 and by the said date, the petitioner did not extract the permitted volume of earth i.e. 55,000 cubic meter and there being no provision for extension of the period of permit for obstructed period, the prayer being made by the petitioner to permit him to excavate rest of the permitted volume of earth cannot be acceded to. He has further stated that the petitioner now needs to apply afresh for grant of fresh mining permit and in case he makes any such application, the same shall be considered in accordance with law and the rules applicable thereto by the authorities concerned. 10. He has further stated that the petitioner now needs to apply afresh for grant of fresh mining permit and in case he makes any such application, the same shall be considered in accordance with law and the rules applicable thereto by the authorities concerned. 10. On the inquiry conducted by the Nagar Nigam, it is clear that the petitioner has not been found indulging in any kind of illegal mining or excavation of earth. It is also not in dispute that the petitioner has not extracted the permitted volume of earth and out of permitted quantity of 55,000 cubic meter, the petitioner has extracted only 14,663 cubic meter of earth from the site. It is also not in dispute that the petitioner was forced to stop the excavation work on 06.04.2017 i.e. before expiry of the term of permit and further that ultimately the petitioner has not been found to have indulged in any illegality so far as the excavation of earth under the permit granted to him is concerned. 11. We, at this juncture, may also observe that it is only on account of the fact that the police authorities of Police Station Krishna Nagar had got the excavation work stopped that the petitioner could not extract the entire volume of earth. It is not on account of any lapse or incompetence or slackness on the part of the petitioner that the quantity permitted to be extracted could not be removed from the site. 12. It is also noticeable that the earth is required to be extracted only for the purposes of making certain constructions in connection with laying of railway track. The earth work, thus, is required to complete the said project in public interest. 13. All these facts, as discussed above, lead us to observe that in ordinary course, the petitioner ought to have been given extension for the obstructed period, however, the State Government has now taken a plea that under the Rules there is no provision for extension of mining permit for the obstructed period. 14. Uttar Pradesh Minor Minerals (Concession) Rules, 1963 have been framed under the provisions of Uttar Pradesh Mines and Minerals (Regulation and Development) Act, 1957 and as such they have statutory force. 15. 14. Uttar Pradesh Minor Minerals (Concession) Rules, 1963 have been framed under the provisions of Uttar Pradesh Mines and Minerals (Regulation and Development) Act, 1957 and as such they have statutory force. 15. It is true that Rule 55 of the said Rules provides that the mining permit shall be valid till the date of expiry of the period of the permit or till such date when the permitted quantity of the mineral is removed, whichever is earlier. However, in a situation which the present case has presented, the State Government is not powerless to redeem the situation on account of which the petitioner has been unable to extract the earth, though the petitioner has not been found erring on any count. 16. Rule 68 of Uttar Pradesh Minor Minerals (Concession) Rules, 1963 specifically empowers the State Government to authorize, in any case, the grant of any mining lease or the working of any mine on terms and conditions different from those laid down in the said rules. Thus, in appropriate case, the State Government is fully empowered to deviate from the said Rules, 1963. 17. Reference at this juncture, may be made to a Division Bench judgment of this Court in the case of Jagdish Prasad Nishad v. State of U.P. and others, reported in (2015) ADJ 519 wherein it has been held that a clear reading of Rule 68 indicates that the State Government is vested with the power to grant mining lease or for working of any mine in the interest of minerals development. 18. Looking to the overall facts and circumstances of the case and also taking into account the background in which the petitioner was stopped from excavation work by the police authorities without there being any illegality which can be said to have been committed on his part and also taking into account the public interest involved in completing the construction relating to laying of railway track, we are of the considered opinion that it is a case fit for invoking the provision of Rule 68 of Uttar Pradesh Minor Minerals (Concession) Rules, 1963 by the State Government. 19. Such a power of deviation from the rules has been vested with the State Government only to meet such exigencies, one of which has presented itself in this case, looking to the public interest involved herein. 20. 19. Such a power of deviation from the rules has been vested with the State Government only to meet such exigencies, one of which has presented itself in this case, looking to the public interest involved herein. 20. At this juncture, learned Standing Counsel for the State has attempted to submit that Rule 68 of the said Rules talks about of mining lease and not mining permit and hence, the State Government is permitted to deviate from the Rules only in case of mining lease and not in respect of mining permit. 21. The aforesaid submission made by learned Standing Counsel is wholly misconceived being based on complete misreading of Rule 68 of the Rules and merits rejection. 22. In this regard, we may only observe that under Uttar Pradesh Mines and Minerals (Regulation and Development) Act, 1957 read with Uttar Pradesh Minor Minerals (Concession) Rules, 1963, no one is permitted to indulge in any mining operation in any area without either a valid mining permit or a valid mining lease which are granted under the provision of Rules, 1963. 23. Be it a mining permit or mining lease, it would ultimately be lease holder or the person in whose favour the mining permit has been granted, who executes mining operations. The difference which can be found between the mining lease and mining permit under Rules, 1963 is only that of the form and not that of the contents. The difference lies in the fact that generally while granting mining lease the quantity of minerals to be removed is not specified whereas while granting the mining permits, the quantity of minor mineral to be removed is specified. 24. For the aforesaid reasons, we are unable to accept the submission made by learned Standing Counsel that Rule 68 of Rules, 1963 can be taken aid of by the State Government for extension of the period of mining lease only and not in the case of mining permits. 25. In view of the aforesaid facts, we dispose of the petition with the direction to the State Government to take a decision into the grievance of the petitioner by taking conscious decision invoking Rule 68 of Uttar Pradesh Minor Minerals (Concession) Rules, 1963. 25. In view of the aforesaid facts, we dispose of the petition with the direction to the State Government to take a decision into the grievance of the petitioner by taking conscious decision invoking Rule 68 of Uttar Pradesh Minor Minerals (Concession) Rules, 1963. While taking decision under this order, the State Government shall keep in mind the observations made here-in-above and also the public interest element involved in permitting the petitioner to extract the earth for the purpose of making construction in connection with railway track. The decision under this order shall be taken by the State Government within a period of three weeks from the date of production of a copy of this order. 26. Costs made easy.