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2023 DIGILAW 510 (UTT)

Balbeer Singh Negi v. State of Uttarakhand

2023-09-05

RAVINDRA MAITHANI

body2023
JUDGMENT : Ravindra Maithani, J. The challenge in this petition is made to Office Memorandum dated 01.12.2020, issued by the respondent no.1, by which, the representation given by the petitioner for extension of his mining lease has been rejected. The petitioner also seeks directions that the respondent no.1 may be directed to permit the petitioner to carry out mining operation for the remaining period of four years, for which, he was deprived for carrying out the mining operation. 2. Heard learned counsel for the parties and perused the record. 3. It is the case of the petitioner that in the year 2014, he was granted mining lease for lifting mines and minerals for a period of 05 years. The deed was registered on 24.01.2014. The mining was to be done for 09 months in a year. The petitioner carried out mining operation, but due to flood and other natural calamities he could not continue the operation after May, 2014 as the entire mining area was covered with flood water and it had become impossible for him to carry out the mining operation. Despite those situations the respondent- authorities demanded royalty amount plus interest from the petitioner. The petitioner on 23.04.2015 made a representation requesting the authorities to limit the demand to the extent the mines and minerals were lifted by him or else to permit the petitioner to surrender his lease deed. A lot of reports were sought on his representation. The reports were given by the officers of Mining Department; by the respondent no.2, the District Magistrate, in which, it was admitted that after May, 2014, the petitioner could not carry out mining operations. In view of all those reports according to the petitioner on 17.03.2017, the respondent-State of Uttarakhand further gave six months mining lease to the petitioner. This order of the respondent no.1-the State of Uttarakhand was enforced by the respondent no.2, the District Magistrate Uttarkashi by its communication dated 20.02.2018, by which the petitioner was required to deposit a particular amount and he was permitted to carry out the mining operations till the month of June, 2016 and a specific amount of mines and minerals was specified that was to be lifted by the petitioner. The petitioner did continue the activity till June and lifted the mines and minerals. 4. The petitioner did continue the activity till June and lifted the mines and minerals. 4. Thereafter, the petitioner gave a representation on 11.06.2018 to the respondent no.1-the State of Uttarakhand for extension of his lease deed on the ground that he could not continue mining operations for the four years due to flood and related natural calamities. That representation was never decided. Under those circumstances, the petitioner filed a writ petition WPMS No.986 of 2019, Balbeer Singh vs. State of Uttarakhand and others before this Court which was decided on 23.09.2020. The Court directed the petitioner to file a fresh representation to the authority, with the further directions to the authority that such representation may be decided within 08 weeks since then. The petitioner filed the representation, which has been rejected, it is impugned herein. 5. The respondent no.2 has filed its counter affidavit. The factual matrix is not much in dispute. In para no.6 of its counter affidavit submitted by the respondent no.2, the District Magistrate it is stated that the petitioner carry out the mining operations in the month of June 2014, December 2014, January 2015, February 2015, March 2015 and April 2015. In para 11 although, the respondent no.2 has further stated that the petitioner did carry out mining operation from the month of March 2018 upto June 2018 also. In its counter affidavit at para no.12, the respondent no.2 has stated that there is no provision of time extension for mining lease period in Uttarakhand Minor Mineral Concession Rules, 2001 (“the Rules”). 6. Learned Senior Counsel appearing for the petitioner would submit that the petitioner has always been dutiful in performance on his part under the mining lease. After grant of lease in the year 2014, he carried out the mining operation, but he could not do so beyond the month of June, 2014 because of natural calamities and other related events including flooding the mining area, change of course of the river Bhagirathi, which made impossible for even reaching at the lease area. He lifted some of the mines and mineral in the month of the January, 2015, but thereafter, he could not continue with the mining activities. He lifted some of the mines and mineral in the month of the January, 2015, but thereafter, he could not continue with the mining activities. It is argued that when the demand was raised by the respondent-authorities for deposition of royalty, the petitioner found it difficult to deposit the demanded royalty; he requested that either the demand be restricted to the mines and minerals that has been lifted by the petitioner or else the petitioner be permitted to surrender his mining lease. 7. Learned Senior Counsel would submit that various reports were asked by the respondent-authorities on the representation that was given by the petitioner on 23.04.2015. In all those reports, it is argued that, it has been admitted by the officers of respondent no.1 including the respondent no.2, the District Magistrate that, in fact, due to natural calamities including flood beyond May, 2014 the petitioner could not carry out mining operation. Despite that it is argued that no action was taken by the respondent-authorities. It is only on 17.03.2017 that finally an order was passed by the respondent no.1 whereby permitting the petitioner to carry out the mining operation for another six months. That order was enforced by the respondent no.2, the District Magistrate on 28.02.2018. 8. Learned Senior Counsel appearing for the petitioner would submit that the petitioner could not continue mining operation for the reason which was beyond his control. It was nature’s act; it was admitted by the respondent-authorities; the petitioner did file his representation on 23.04.2015, which was not decided for almost two years by the respondent no.1 and finally, it was decided on 17.03.2017. 9. Leaned Senior Counsel appearing for the petitioner would submit that the petitioner deserves extension of mining lease for the period for which he could not carry out the mining operations. This is so because of the two reasons namely, (i) The mining operation remains suspended for a long due to natural calamities and; (ii) Despites the petitioner’s representation on 23.04.2015 the respondents-authority did not decide it until 17.03.2017. 10. This is so because of the two reasons namely, (i) The mining operation remains suspended for a long due to natural calamities and; (ii) Despites the petitioner’s representation on 23.04.2015 the respondents-authority did not decide it until 17.03.2017. 10. In support of his contention, learned Senior Counsel appearing for the petitioner has placed reliance on the principles of law as laid down by the Hon’ble Supreme Court in the case of Beg Raj Singh vs. State of U.P. and others, (2003)1 SCC 726 and judgment of this Court passed in Special Appeal No. 485 of 2014, State of Uttarakhand and another vs. M/S Kilkileshwar Mining Company and another and related matters. 11. In the case of Beg Raj Singh (supra) despite grant of mining lease the petitioner in that case was not permitted to continue with the mining operation. He filed the petition, but the lease in the meanwhile had expired. Under those circumstances the Hon’ble Supreme Court observed as under:- “The ordinary rule of litigation is that the rights of the parties stand crystallized on the date of commencement of litigation and the right to relief should be decided by reference to the date on which the petitioner entered the portals of the court. A petitioner, though entitled to relief in law, may yet be denied relief in equity because of subsequent or intervening events i.e. the events between the commencement of litigation and the date of decision. The relief to which the petitioner is held entitled may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law. There may be other circumstances which render it inequitable to grant the petitioner any relief over the respondents because of the balance tilting against the petitioner on weighing inequities pitted against equities on the date of judgment. Third- party interests may have been created or allowing relief to the claimant may result in unjust enrichment on account of events happening in-between. Else the relief may not be denied solely on account of time lost in prosecuting proceedings in judicial or quasi-judicial forum and for no fault of the petitioner. Third- party interests may have been created or allowing relief to the claimant may result in unjust enrichment on account of events happening in-between. Else the relief may not be denied solely on account of time lost in prosecuting proceedings in judicial or quasi-judicial forum and for no fault of the petitioner. A plaintiff or petitioner having been found entitled to a right to relief, the court would as an ordinary rule try to place the successful party in the same position in which he would have been if the wrong complained against would not have been done to him. The present one is such a case. The delay in final decision cannot, in any manner, be attributed to the appellant. No auction has taken place. No third-party interest has been created. The sand mine has remained unoperated for the period for which the period of operation falls short of three years. The operation had to be stopped because of the order of the State Government intervening which order has been found unsustainable in accordance with stipulations contained in the mining lease consistently with GO issued by the State of Uttar Pradesh. Merely because a little higher revenue can be earned by the State Government that cannot be a ground for not enforcing the obligation of the State Government which it has incurred in accordance with its own policy decision.” 12. In the case of M/S Kilkileshwar Mining Company (supra), the petitioner, in that case, was also granted a mining lease which was cancelled and the petitioner was stopped from carrying out the mining operation. When the petition was allowed, this Court further issued directions that the petitioner, in that case, shall be allowed to undertake mining for full period for which he was granted mining lease. This judgment of the Coordinate Bench was upheld in the case of M/S Kilkileshwar Mining Company (supra) in the special appeal. 13. On the other hand learned State counsel would submit that the petitioner was never restrained to carry out the mining operation. He had carried out the mining operation for 23 months. But, in the year 2018 also, a specific amount was permitted to be excavated by the petitioner. In the year 2014 uptil May and in the year 2015 also, the petitioner excavated the mines and minerals. He had carried out the mining operation for 23 months. But, in the year 2018 also, a specific amount was permitted to be excavated by the petitioner. In the year 2014 uptil May and in the year 2015 also, the petitioner excavated the mines and minerals. He would also submit that after 2017, the lease is being awarded by public auctions. 14. The Court wanted to know from the learned State counsel, as to whether the petitioner was restrained from carrying out mining operation after May 2014 due to floods and natural calamities? He would answer that, “in between period the petitioner could not excavate mines and minerals because there was flood in that area.” 15. Learned Senior Counsel appearing for the petitioner would submit that the dead rent had already been submitted by the petitioner uptil year 2017 and for the year 2018 period, he had paid money as was demanded as royalty. 16. The factual matrix is not much in dispute. Mining lease was granted to the petitioner. He started the mining operation also. Thereafter the series of events may be summarized as follows:- (i) On 22.04.2015, the officers of Mining Department demanded royalty from the petitioner (Annexure No.4). (ii) On 23.04.2015, the petitioner replied that he could not lift the mines and minerals due to floods, he requested that either he be permitted to pay royalty based on the mines and minerals lifted by him or he sought permission to surrender his mining lease (Annexure No.5). (iii) On 21.05.2015, Additional District Magistrate, Uttarkashi directed the officers of Mining Department to submit a report on the application dated 23.04.2015 of the petitioner (Annexure No.6). (iv) On 07.06.2015, the officers of Mining Department submitted his report admitting that, in fact, due to natural calamities the petitioner could not carry out the mining operation (Annexure No.7). (v) On 06.01.2017, the officers of the State of Uttarakhand fixed a date and time for hearing the matter. The parties were given notice to join the hearing (Annexure No.15). (vi) On 17.03.2017, the matter was decided by the respondent no.1-the State of Uttarakhand, by which, the petitioner was granted six months time to carry out the mining operation after depositing the admissible dues (Annexure No. 16). The parties were given notice to join the hearing (Annexure No.15). (vi) On 17.03.2017, the matter was decided by the respondent no.1-the State of Uttarakhand, by which, the petitioner was granted six months time to carry out the mining operation after depositing the admissible dues (Annexure No. 16). (vii) On 20.02.2018, the respondent no.2 passed an order directing the petitioner to carry out mining operation specifying the quantity that may be lifted by the petitioner and also fixing the amount that was to be paid by the petitioner (Annexure No.18). (viii) In one of his communications dated 02.01.2017, the respondent no.2-the District Magistrate Uttarkashi had admitted that after 2014 the petitioner could not carry out the mining operation due to flood, etc. This Communication was made to the State of Uttarakhand (Annexure No.13). 17. If the petitioner could not carry out the mining operation due to the reasons beyond his control like flood, etc.; it cannot be said that he was not restrained by the respondent-authorities to carry out the mining operation. It is not the respondent-authorities, but the act of god, which had restrained the petitioner from carrying out mining operation for that period. 18. On 22.04.2015, when the petitioner was asked to deposit the royalty, the next day on 23.04.2015, he requested the respondent-authorities to demand royalty in proportion to the mines and minerals that he had lifted or he had sought permission to surrender his lease deed. No action was taken on his letter dated 23.04.2015 by the State-authorities at that moment. Neither the request was declined nor it was allowed. The only action that was taken after that was on 17.03.2017 by the respondent no.1 and which was put into implementation by an order dated 20.02.2018, passed by the respondent no.2. Pursuant to which for some more months, the petitioner was permitted to carry out the mining operation and to lift the mines and minerals which learned Senior Counsel for the petitioner admits that he had lifted. 19. Pursuant to which for some more months, the petitioner was permitted to carry out the mining operation and to lift the mines and minerals which learned Senior Counsel for the petitioner admits that he had lifted. 19. In the case of Beg Raj Singh (supra), the Hon’ble Supreme Court has considered a situation when a lessee was not permitted to carry out the operation related to lease, but when such lessee becomes successful the Hon’ble Supreme Court observed, “A plaintiff or petitioner having been found entitled to a right to relief, the court would as an ordinary rule try to place the successful party in the same position in which he would have been if the wrong complained against would not have been done to him.” 20. The petitioner cannot be faulted for not carrying out the mining operation for a long period. The reason was that the first demand that was raised on 22.04.2015, which the petitioner objected to on the ground that he could not carry out the mining operations for a certain period due to flood related problem. As stated, it was not decided then by the respondent- authorities. For complete two years it was kept pending. Initially the mining operation was to be done by the petitioner for 09 months in a year. Subsequently, by order dated 17.03.2017, it was restricted for 06 months, which was enforced by the order dated 20.02.2018 of the respondent no.2. The record reveals that, in fact, the petitioner continued mining operation till May, 2014 and he did some mining operation in the month of January, 2015 also. Even if it is about 06 months, he further was permitted to carry out the mining operation in the year 2018 by virtue of the order dated 20.02.2018, passed by the respondent no.2, pursuant to the order dated 17.03.2017, passed by the respondent no.1-the State of Uttarakhand. Broadly it may be considered that for 02 years the petitioner continued the mining operation. The mining lease for the petitioner was initially granted for five years, which means that for three years period the petitioner could not continue mining operation due to inaction on the part of the respondent-authorities or due to natural calamities. 21. What is argued is that now State has revised the policy for auctioning the mines. The mining lease for the petitioner was initially granted for five years, which means that for three years period the petitioner could not continue mining operation due to inaction on the part of the respondent-authorities or due to natural calamities. 21. What is argued is that now State has revised the policy for auctioning the mines. The same argument was raised in the case of Beg Raj Singh (supra), which was answered by the Hon’ble Supreme Court in the following words, “Merely because a little higher revenue can be earned by the State Government that cannot be a ground for not enforcing the obligation of the State Government which it has incurred in accordance with its own policy decision.” 22. In the instant case, it is not the policy decision, but it is an inaction on the part of the State Government. For complete two years, as stated from 23.04.2015 to 17.03.2017, the representation of the petitioner was kept pending. In addition to it, the natural calamities had restrained the petitioner to carry out the mining operation. Therefore, in view of the principle of law as laid down by the Hon’ble Supreme Court in the case of Beg Raj Singh (supra), this Court is of the view that the representation of the petitioner ought to have been allowed and he should have been permitted to carry out the mining operation for another three years. With the stipulation as lastly fixed by the communication dated 20.02.2018 by the respondent no.2 that he would carry out the mining operation only for six months in a year. Accordingly, the petition deserves to be allowed. 23. The petition is allowed. 24. The respondent no.1 is directed to permit the petitioner to continue the mining operation for another three years subject to conditions of the lease-deed. An order to that effect shall be passed by the respondent no.1-State of Uttarakhand forthwith.