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2023 DIGILAW 1722 (ALL)

Gauri Shankar Singh v. State of Uttar Pradesh

2023-07-18

ARUN KUMAR SINGH DESHWAL, SIDDHARTHA VARMA

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JUDGMENT : Arun Kumar Singh Deshwal, J. 1. Heard learned counsel for the parties. 2. Upon an agreement having been signed between the petitioner and the respondents on 03.04.2018, the petitioner was granted a lease for excavating sand from 03.04.2018 to 02.04.2023. The petitioner in pursuance of the lease deposited the Security money of Rs.33,87,500/-. He also deposited the royalty for the period beginning on 03.4.2018 and ending on 30.6.2018. Thereafter, the rainy season intervened with effect from 01.07.2018 and the petitioner refrained from mining till the 30.09.2018. The mining work was to commence from 01.10.2018 and when the petitioner started off with the mining from the land in question, he found that because of the inundation by the river Ghaghra, the entire area was covered by mud. He, therefore, informed the District Magistrate about the impediment in the mining on 24.10.2018. The petitioner hoped that the District Magistrate could get an inspection done as to whether the land on which the lease was granted for mining had sand only or whether the area was covered by mud as had been alleged by the petitioner in his application dated 24.10.2018. 3. In pursuance of the application of the petitioner, on 03.12.2018 an inspection was ordered by the District Magistrate, Gorakhpur. However, immediately, thereafter, on 16.01.2019, a notice was issued to the petitioner under Rule 58 of the Uttar Pradesh Minor Mineral (Concession) Rules, 1963, directing the petitioner to deposit arrears of installments and royalty failing which his mining lease could be cancelled after forfeiting the security. Also it was provided that the outstanding amount could be recovered as arrears of land revenue. The petitioner did not reply to the notice as the petitioner had, as per the petition, never received the notice. However, on 01.02.2019 the lease was canceled and the Security money was forfeited and certain installments were ordered to be recovered. This was done without waiting for the report which was to be submitted after the inspection which was ordered on 03.12.2018. Aggrieved thereof the petitioner filed an appeal. 4. However, on 01.02.2019 the lease was canceled and the Security money was forfeited and certain installments were ordered to be recovered. This was done without waiting for the report which was to be submitted after the inspection which was ordered on 03.12.2018. Aggrieved thereof the petitioner filed an appeal. 4. Before the appellate Court it was vehemently argued by the petitioner that in pursuance of the report asked for on 03.12.2018 by the District Magistrate, Gorakhpur, a report had in fact subsequently been submitted on 25.02.2019 and that report could not be considered at the time of the passing of the order dated 01.02.2019 as it was passed in hot haste and in contravention of the Rule 58 of the 1963 Rules which contemplates that before passing the order for termination of the lease, the District Magistrate should at least wait for 30 days. In fact it had been argued that the show cause notice itself had to contemplate that payment of arrears had to be made within 30 days of the notice. He had argued that the report regarding the mine having other minerals was in fact submitted on 25.02.2019. The Appellate Court on 15.11.2019 though had dismissed the appeal, remanded the matter for re-adjudication and directed the District Magistrate, Gorakhpur to reconsider the case after looking into the inspection report dated 25.02.2019. Since the appeal had been dismissed in so many words, the petitioner instead of pursuing the matter before the District Magistrate filed a revision and when the revision was dismissed on 03.03.2020, the instant writ petition was filed. 5. The Revisional Court, however, modified the order of the District Magistrate, Gorakhpur and instead of confiscating the Security money, permitted the adjustment of the royalty from the Security money. 6. Learned counsel for the petitioner while assailing the impugned orders submitted as under:- i. The petitioner, when had commenced with the mining on 01.10.2018 and had found that the mining area was covered by mud, had reported the matter to the District Magistrate, Gorakhpur on 24.10.2018 and, thereafter, the District Magistrate had also asked for a report on 03.12.2018 and when the report was submitted on 25.02.2019, it was clearly found that there was more mud than sand at the mining site. ii. ii. Learned counsel for the petitioner further submits that when the report as per the direction dated 03.12.2018 was awaited, the lease could not have been cancelled on 01.02.2019 and definitely no confiscating of security could have been ordered. iii. He further submits that the Appellate Court also erred in law while remanding the matter as it had dismissed the Appeal. iv. Learned counsel for the petitioner submits that the Revisional Court did not consider any of the points as were raised by the petitioner. He submits that the Revisional Court did not consider the report dated 25.02.2019 which had stated that in fact the mining area was covered by mud and, therefore, the mineral 'sand' was hardly available. v. Learned counsel for the petitioner relying upon the judgement of this Court dated 11.01.2021 passed in Writ-C No.17258 of 2020 (Vipul Tyagi vs. State of Uttar Pradesh And 6 Others) has submitted that as per Section 15(3) of the Mines & Minerals (Regulation & Development) Act, 1957, royalty for such period in which the Mineral from the Mines was not removed could not be charged. Since the learned counsel for the petitioner relied upon the Section 15(3) of the 1963 Act is being reproduced here asunder:- “"[(3) The holder of a mining lease or any other mineral concession granted under any rule made under sub-section (1) shall pay ][royalty or dead rent, whichever is more], in respect of minor minerals removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee at the rate prescribed for the time being in the rules framed by the State Government in respect of minor minerals: Provided that the State Government shall not enhance the rate of [royalty or dead rent] in respect of any minor mineral for more than once during any period of [three years]." ” vi. Learned counsel for the petitioner further relied upon the decision of the Supreme Court in the case of M/s. Planet Steel Pvt. Ltd. Vs. The State of Haryana and Ors., decided on 10.04.2018 and submitted that the royalty could be charged only for the mineral as was available at the mining site. Learned counsel for the petitioner states that since the mining area was covered by mud, sand could not have been excavated at all. vii. The State of Haryana and Ors., decided on 10.04.2018 and submitted that the royalty could be charged only for the mineral as was available at the mining site. Learned counsel for the petitioner states that since the mining area was covered by mud, sand could not have been excavated at all. vii. Learned counsel for the petitioner states that if Rule 58 of the Uttar Pradesh Minor Mineral (Concession) Rule is seen then it becomes obvious that the District Magistrate after issuing notice on 16.01.2019 ought to have waited for at least 30 days before passing the order, which was passed on 01.02.2019, i.e. only after about 15 days. 7. Since learned counsel had relied immensely on Rule 58 of the Uttar Pradesh Minor Mineral (Concession) Rules, 1963 the same is being reproduced here asunder:- “58. Consequences of non-payment of royalty rent or other dues. -(1) The State Government or any officer authorised by it in this behalf may terminate the mining lease after serving a notice on the lessee to pay within thirty days of the receipt of the notice any amount due or dead rent under the lease including the royalty due to the State Government if it was not paid within fifteen days next after the date fixed for such payment. This right shall be in addition to and without prejudice to the right of the State Government to realise such dues from the lessee as arrears of land revenue. (2) Without prejudice to the provisions of these rules, simple, interest at the rate of 18 per cent per annum may be charged on any rent, royalty, demarcation fee and any other dues under these rules, due to the State Government after the expiry of the period of notice under sub-rule (1).” 8. Learned Standing Counsel, however, in reply submitted that when the petitioner did not mine on his own after 01.10.2018 then there was no other option left with the respondents but to cancel the lease and order for recovery of the outstanding installments and the royalty. 9. Learned Standing Counsel further submitted that when the report as was submitted on 25.02.2019 came to the notice of the District Magistrate after the lease was canceled, the District Magistrate was under no obligation to consider the same. 10. 9. Learned Standing Counsel further submitted that when the report as was submitted on 25.02.2019 came to the notice of the District Magistrate after the lease was canceled, the District Magistrate was under no obligation to consider the same. 10. Having heard the learned Senior Counsel Sri Mukesh Prasad assisted by Sri Amit Upadhyay, Advocate and the learned Standing Counsel Sri Anubhav Chandra, we are of the view that the orders impugned cannot be sustained in the eyes of law; the petitioner was granted a lease on 03.04.2018 for a period commencing from 03.04.2018 and ending on 02.03.2023. The petitioner had commenced work on 03.04.2018 and had stopped the work on 30.06.2018 because of the monsoon season. When he commenced work on 01.10.2018, he discovered that there was hardly any sand available in the mining area in question because of the inundation of the river and, therefore, he reported his grievance on 24.10.2018 to the District Magistrate, who in his turn had ordered an inspection of the area on 03.12.2018. Definitely when a report was asked for on 03.12.2018 by the District Magistrate then he ought to have waited for the report and he should not have hurriedly issued the notice on 16.01.2019 and, thereafter, should not have canceled the lease on 01.02.2019. Also we filed that the report in fact was submitted on 25.02.2019 but the District Magistrate had already, without waiting for it, hurriedly passed the order on 1.2.2019. 11. Still further we find that under Rule 58 of the Uttar Pradesh Minor Mineral (Concession) Rule, 1963 after the issuing of notice on 16.1.2019, the District Magistrate ought to have waited for a period of 30 days and, thereafter, should have canceled the lease. Having not done so, we find that the District Magistrate, Gorakhpur definitely acted in hot haste. He did not wait for the report as he had asked for by his own order dated 03.12.2018 and also did not wait for the statutory period of 30 days after the issuing of the notice. Also we find that the Appellate Court and the Revisional Court which ought to have considered the report dated 25.2.2019 did not consider the same and dismissed the appeal and the revision wrongly. Also we find that the Appellate Court and the Revisional Court which ought to have considered the report dated 25.2.2019 did not consider the same and dismissed the appeal and the revision wrongly. We do find that as per the judgement and order dated 11.01.2021 passed in writ petition being Writ-C No.17258 of 2020 (Vipul Tyagi vs. State of Uttar Pradesh And 6 Others) royalty was chargeable only for the period for which minerals were removed by the petitioner. 12. Under such circumstances, the order of the District Magistrate, Gorakhpur dated 01.02.2019, the order of the Appellate Court dated 15.11.2019 and the order of the Revisioinal Court dated 03.03.2020 are quashed. The consequential recovery certificate dated 20.03.2020 is also quashed and is set aside. 13. Since we have quashed the impugned order and also the order of recovery initiated by the District Magistrate, Gorakhpur we direct that any amount recovered from the petitioner be also returned to the petitioner. 14. With these observations, accordingly, the writ petition is allowed.