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2024 DIGILAW 1086 (ALL)

Rakesh Kumar Jaiswal v. State of U. P.

2024-04-19

ANJANI KUMAR MISHRA, JAYANT BANERJI

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JUDGMENT: Heard Sri. M.D. Mishra, learned counsel for the petitioner and the learned Standing Counsel, appearing for the respondents. 2. This petition had been initially filed seeking the following reliefs: "(i) Issue a writ in the nature of mandamus commanding the respondents to decide the applications of the petitioner for cancellation of lease. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to realise the royalty in respect of leased area to the petitioner after 15.6.2004." 3. The case in the petition is that pursuant to an advertisement dated 20.11.2002, an auction was held on 7.1.2003 for extracting sand from certain river Ghats situated in Tehsil Farenda, District Maharajganj. The petitioner made the highest bid of Rs. 1,95,000/ which was accepted on annual premium of Rs. 1,95,000/. The petitioner deposited the entire amount of bid by 15.6.2004. A lease deed was executed on 16.6.2003 which was registered on 17.6.2003. It is alleged that due to drought, there was no sand in the leased mining area of the petitioner and there was no approach road to extract the sand from the leased area and as such, the petitioner made an application to the respondent no.3, District Magistrate on 15.6.2004 under Rule 16 of the U.P. Minor Minerals (Concession) Rules, 1963 Rules, 1963. to cancel his mining lease. Further, applications dated 14.9.2004 and 28.9.2004 were also submitted by the petitioner to cancel the lease granted in his favour. Another detailed application dated 22.12.2004 was filed seeking cancellation of the lease. On failure of respondents to cancel the lease deed, the present petition was filed. During the pendency of this petition, a citation dated 5.4.2004 was issued by the Tehsildar, Tehsil Nautanwa, district Maharajganj and therefore, on an application filed on behalf of the petitioner, the prayer was permitted to be amended and the following prayer was added as prayer no. 2A. "2A. To issue a writ, order or direction in the nature of certiorari quashing the impugned citation dated 5.4.2005, issued by Tehsildar, Tah-Nautanwa, District Maharajganj." 4. It is pertinent to mention here that another amendment application was filed on behalf of the petitioner on 5.7.2019 which was allowed by the order of the Court dated 4.3.2004. Thereafter, prayer no. 2A was amended to read as follows: "2A. It is pertinent to mention here that another amendment application was filed on behalf of the petitioner on 5.7.2019 which was allowed by the order of the Court dated 4.3.2004. Thereafter, prayer no. 2A was amended to read as follows: "2A. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 7.8.2004 (Annexure no. SA-1) and consequential citation dated 5.4.2005 issued by Tehsildar, Tehsil Nautanwa, district Maharajganj." 5. In a supplementary affidavit filed by the petitioner, it has been stated that the petitioner has been discriminated against inasmuch as by an order dated 25.5.2005, the State Government had directed the District Magistrate, Maharajganj to take steps for cancellation of the lease deed in view of the fact that there was opposition of farmers due to which sand could not be mined. 6. In the counter affidavit filed on behalf of the respondents, it has been stated that in the auction held on 7.1.2003, four persons including the petitioner had participated, in which the petitioner was the highest bidder. On acceptance of the bid of the petitioner, a lease deed in favour of the petitioner was executed which was duly registered and it was for a period of three years; that the petitioner voluntarily had submitted stamp papers and got the lease deed executed. Under Rule 40 of the Rules, 1963, the petitioner himself is responsible for arranging of road for transportation of mines mineral; that it was evident from a site inquiry report that a straight public road goes upto the sand extraction site in the concerned villages and there is no inconvenience in extraction and transportation of the sand (minerals). Despite all these, when the petitioner did not deposit the requisite charges and royalty and without using the Ravanna form in adequate numbers and indulged in illegal extraction of sand and theft, notices were issued to the petitioner on 29.11.2003 and 15.4.2004 directing him to deposit the charges within a week, failing which the amount shall be recovered as arrears of land revenue. 7. It is also stated that after receipt of the aforesaid notices, on 15.6.2004, the petitioner moved an application for cancellation of the lease on which an order dated 7.8.2004 was passed by the Additional District Magistrate, Maharajganj dismissing the same on merits and the petitioner was asked to deposit due amounts. 7. It is also stated that after receipt of the aforesaid notices, on 15.6.2004, the petitioner moved an application for cancellation of the lease on which an order dated 7.8.2004 was passed by the Additional District Magistrate, Maharajganj dismissing the same on merits and the petitioner was asked to deposit due amounts. It is stated that without filing an appeal before the statutory authorities, the writ petition has been directly filed before this Court. 8. The submission of the learned counsel for the petitioner is that his application dated 15.6.2004 was moved under Rule 16 of the Rules, 1963 and therefore, the order dated 7.8.2004 passed by the Additional District Magistrate, Maharajganj rejecting the application on the ground that providing road is the responsibility of the lease holder and, there is no responsibility of the State Government for the same, is illegal and unwarranted since the application was required to be considered under the provision of Rule 16. 9. Learned Standing Counsel has opposed the writ petition and has stated that the petitioner being the highest bidder is liable to pay royalty and all other charges as payable under the Rules. It is stated that the petitioner set up a specious plea with regard to the road for transporting minerals not being made available by the State Government as, firstly, under the terms of the lease and the Rules, 1963, it is the liability and responsibility of the petitioner to arrange for transportation of minerals and, secondly, as is reflected from the counter affidavit, a straight road was available to the petitioner right upto the site of the mining to enable him to extract the sand. Learned Standing Counsel has further stated that the application dated 15.6.2004 moved by the petitioner is not an application under Rule 16 inasmuch as Rule 16 provides for notice in writing of not less than six months to the State Government. 10. The point for consideration in this petition is whether the application filed by the petitioner dated 15.6.2004 was required to be considered by the respondents under Rule 16 of the Rules, 1963 or, could they have dismissed the application by the impugned order dated 7.8.2004 citing reason that it was the responsibility of the petitioner to arrange for transportation and passage of minerals from the mining site. 11. Rule 16 of the Rules, 1963 reads as follows: "16. 11. Rule 16 of the Rules, 1963 reads as follows: "16. Restriction on determination of mining lease.- No lessee shall determine a mining lease except after giving a notice in writing of not less than six months to the State Government." Thus, Rule 16 itself provides option to the lessee for determination of mining lease, but only after giving a notice in writing of not less than six months to the State Government. 12. The application of the petitioner dated 15.6.2004 seeking cancellation of contract/lease reads as follows:- 13. Thus, for all fact and purposes, the petitioner did seek determination of the lease. Albeit, the notice did not specify that it was a six months notice as required under Rule 16. Once the respondents had received the aforesaid notice dated 15.6.2004, seeking determination of the lease, on whatever be the ground for seeking such determination, the respondents ought to have exercised their discretion and treated it to be a notice of six months as provided in Rule 16 for determination of the lease and after taking into account the terms and conditions of the lease and the Rules, 1963. The rejection of the application dated 15.6.2004 by the impugned order dated 7.8.2004 is not warranted as it deprives the petitioner its right to seek determination of mining lease in terms of Rule 16. 14. Under the circumstances, the order impugned dated 7.8.2004 passed by the Additional District Magistrate, Maharajganj rejecting the application of the petitioner dated 15.6.2004 cannot stand and is hereby quashed. The respondents are directed to consider the application dated 15.6.2004 filed by the petitioner seeking determination of mining lease treating it to be a six months notice as provided under Rule 16 of the Rules, 1963 and pass appropriate orders thereon. 15. This petition is, accordingly, allowed in terms of the aforesaid observations.