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2017 DIGILAW 574 (UTT)

Sunder Singh Chauhan v. State of Uttarakhands

2017-10-31

SERVESH KUMAR GUPTA

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JUDGMENT : Servesh Kumar Gupta, J. This writ petition has been filed with the prayer to issue the writ, order or direction in the nature of certiorari quashing the impugned office memorandum dated 25.9.2013 (Annexure-18) issued by the Addl. Chief Secretary refusing to renew the mining lease in favour of the petitioner and thus his representation dated 08.4.2013 was disposed of. 2. Another prayer has been made to issue the appropriate writ extending the period of mining lease for 8 months 29 days as recommended by the District Collector, Pauri Garhwal by his letter dated 16.7.2012 (Annexure-5) and further renewing such lease after taking into consideration the recommendation as made in the joint inspection report which was summarized in the letter sent by the Sub Divisional Magistrate, Lansdown Garhwal to the District Collector dated 30.10.2012. 3. Having heard the rival contentions, it transpires that the lease deed was executed on 28.10.2002 between the writ petitioner and the District Collector, Garhwal pertaining to the mining in the river eastern Nayar which flows through different villages nearby Satpuli in Tehsil Lansdown. 4. The area of the mining disclosing the particular Khet Numbers were disclosed in the lease deed as well the letter of District Collector dated 19.8.2002 written to the writ petitioner. The petitioner deposited the requisite charges making him entitled for mining upto the period 10.02.2013. The petitioner continued to perform such mining. Before the period came to an end the letter was sent by the District Collector on 16.7.2012 (Annexure-5) to the Principal Secretary, Industrial Development, Government of Uttarakhand which adverts that the mining remains closed in the forest areas for three months in a year and the lease rent is charged for 9 months out of the whole year. 5. It was apprised that Mr. Chauhan could not perform the mining work for 8 months 29 days ever since the lease deed was executed in his favour so the necessary directions be issued in this regard. 6. Mr. Chauhan also applied for renewal of such lease for again 10 years as was contemplated in one of the stipulations of the lease deed that if both the parties do so agree then the lease may be renewed for further ten years. 7. 6. Mr. Chauhan also applied for renewal of such lease for again 10 years as was contemplated in one of the stipulations of the lease deed that if both the parties do so agree then the lease may be renewed for further ten years. 7. It has been argued that the learned Sub Divisional Magistrate of the area vide his letter dated 31.10.2012 sent to the District Collector, Pauri Garhwal recommended the mining because the sand, boulder and other mining materials were available in abundance in the river and the mining of the same was essential in order to earn the revenue as well as to prevent the theft of such natural resources from the river. 8. It appears that despite of such recommendations the District Collector (since the lease period had been expired) directed to close the mining after evening of 10.02.2013. So, the writ petition no. 182/2013 (M/S) was filed by Mr. Chauhan where the coordinate Bench passed an order dated 30.01.2013 to the Principal Secretary, Industrial Development to decide the representation of the petitioner dated 10.02.2012 as well as 12.6.2012 in accordance with law within a period of 10 days. 9. Pursuant to the previous representations Mr. Chauhan reiterated his grievance in another representation dated 01.02.2013 to the Principal Secretary. When moving such representation could not be taken into consideration then another writ petition no. 466/2013 (M/S) was presented by Mr. Chauhan which was also disposed of by the coordinate Bench of this court directing the Principal Secretary to consider the petitioner’s application for renewal and/or extension of period of mining lease and the same shall be done after rendering hearing to the petitioner by passing a speaking order and the Principal Secretary was asked to complete the entire exercise within three weeks from the date of communication of the order. 10. 10. It appears that after receiving such order of this court, the Secretary sought the report of the Joint Director, Geology and Mining Unit who opined that prayer of the petitioner to extend the period of 8 months 29 days for mining did not appear to be maintainable because the new policy in this regard had been framed by the Government of Uttarakhand, which was applicable w.e.f 18.11.2011 and as per such policy the mining could have been permitted only through Garhwal Mandal Vikas Nigam in that area and alternately by the State Marketing Federation or through Labour Contract Societies or Cooperative Societies and then in the last by private persons for maximum period of five years at one time. 11. The report of the Joint Director also revealed that obtaining the no objection certificate from Union Environmental Ministry was essential w.e.f. 22.3.2013 so from that angle also neither the lease could be renewed nor it could be extended in favour of the petitioner. Such policy depicts that the mining in the rivers could be permitted only through invoking tender procedure. 12. Pursuant to the report of the Addl. Director, the Addl. Chief Secretary disposed of the representation of the petitioner by way of passing the impugned order dated 25.9.2013. 13. Learned counsel of the writ petitioner has relied upon the law laid down by the Hon’ble Apex Court in Doiwala Sehkari Shram Samvida vs. State of Uttaranchal and others reported in (2007) 11 SCC 641 . 14. I think the law down by the Hon’ble Apex Court is in such eventuality where the period of entitlement of mining was sanctioned for ten years and such period had not been expired. The new policy of the State had been imposed before the expiry of such mining period and the private persons were also not absolutely excluded under the new mining policy. Therefore, it was held that the appellant was entitled for mining uptill the expiry of lease period of ten years. 15. In the present facts and circumstances, I feel the letter of District Magistrate dated 16.7.2012 makes it abundantly clear that during the rainy season, the mining kept closed for three months each year and this is done for security measures. The rent is charged only for nine months. 16. 15. In the present facts and circumstances, I feel the letter of District Magistrate dated 16.7.2012 makes it abundantly clear that during the rainy season, the mining kept closed for three months each year and this is done for security measures. The rent is charged only for nine months. 16. That apart, when the lease deed was executed on 28.10.2002 for ten years it was inherent that these ten years would not mean 120 months but such period would exclude the period of rainy season when the water current in the river reaches to the dangerous level so, the human life which may be of even labourers who are manually indulged by the contractor in performing the task of mining cannot be put at stake. 17. Since the new policy of the Government had come into effect since 2011 and even thereafter the mining work of the petitioner was closed by the evening of 10.02.2013 hence, from any angle the petitioner is not entitled either to get his lease renewed or to extend the period of lease. 18. This is yet another aspect that the Government is slow or is in slumber in not carrying out the mining work in the Nayar river after the new policy came into operation on 18.11.2011 because the whole hierarchy who is responsible for this task is reluctant in ensuring the environmental clearance as per directions of the Hon’ble Apex Court dated 27.02.2012 and such reluctance is causing the big revenue loss to the Government which has the adverse effect even for the development of the local hilly area as well as plain areas of this new state which is cash starved too. 19. Writ petition is hereby dismissed. 20. If any excess amount has been paid by Mr. Chauhan in the Government revenue, the same shall be calculated by the District Collectorate and after due verification the process shall be adopted for the return of the same.