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2024 DIGILAW 593 (ALL)

Raghunath Dubey v. State of U. P.

2024-02-26

SHEKHAR B.SARAF, SIDDHARTHA VARMA

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JUDGMENT : 1. The petitioners, who are seven in number, and the respondent no. 5 are co-sharers of plot no. 454 area 0.5190 hectare; plot no. 460 area 0.0760 hectare; plot no. 461-Ka area 0.9360 hectare and plot no. 461-kha area 0.4020 hectare. Out of the total area of these four plots which exceeded 1.1 hectare, an area of 1.100 hectare was found, after inspection, fit for mining of Situ Rock (Dolostone) and it was decided by the District Magistrate to invite bids by way of e-tender for mining of the minerals found in the four plots which were situated in village Billi Markundi, Pargana Agori, Tehsil Obra, District Sonbhadra. 2. Before the e-tender took place to get the highest bid for the mineral available, the petitioners and the respondent no. 5 had given their consent to the District Mining Officer, Sonbhadra that they were ready and willing to get the minerals excavated from their private land as per Rule 23(2)(d) of the Uttar Pradesh Minor Mineral (Concession) Rules, 2021 (hereinafter referred to as the “Rules”). Rule 23(2)(d) of the Rules is being reproduced here as under: “23. Declaration of area for e-tender/e-auction/e-tender-cum-e-auction lease: (1)................. (2) Subject to direction issued by the State Government from time to time in this behalf: (a)................. (b)................. (c)................. (d) Naturally available in-situ-rock type mineral found in private land of minimum area one hectare shall be leased out for a maximum period of ten years through e-tender/e-auction/e-tender cum e-auction: Provided that in respective mine area the District Officer after confirming the availability of mineral, suitability of area, certificate of land ownership, land owner's affidavit for consent, shall process e-tender/e-auction/e-tender cum e-auction after determination of quantity and period not exceeding ten years. The land owner/owners after completion of e-auction process of the are will take cognizance of the highest bid and within seven working days get an opportunity to present an offer higher than the highest bid before the District Officer having territorial jurisdiction over the concerned area. If this right of first refusal is not exercised by the land owner/owners, the lease will be approved in favour of the highest bidder and the land owner/owners will have the right to receive a compensation equal to the amount as decided by the State Government from time to time, which will be in addition to the amount payable to the State Government. Payment to land owner/owners will be mandatory along with the payment to the State Government.” 3. After the land owners had given their consent for excavation of the minerals from the four plots which were in their ownership, they had waited for the tenders to be made public and when it was found that the highest bidder i.e. the respondent no. 4 had given a tender for Rs. 400 per cubic meters then the petitioners and the respondent no. 5 were put to notice on 19.8.2023 by the District Magistrate, Sonbhadra as per the proviso to Rule 23(2)(d) as to whether they were ready to take the mining rights at a rate higher than Rs. 400 per cubic meters. In response to the notice dated 19.8.2023, the petitioners submitted their consent for taking the lease and for doing the mining work on the plots in question at the rate of Rs. 401 per cubic meters. This meant that the petitioners had offered that the lease be finally executed in their favour at a rate which was Rs. 1/- higher than the rate which was offered by the highest bidder. However, the respondent no. 5, who was also a co-sharer along with the seven petitioners, backed out and he did not give any rate for the minerals which were to be mined from the plots in question. Resultantly thereof, the District Magistrate on 4.9.2023 approved the lease in favour of respondent no. 4-M/s. Mahadev Mining and passed the impugned order on 4.9.2023, which is under challenge in this writ petition. 4. Assailing the order passed by the District Magistrate on 4.9.2023, learned Senior Counsel appearing for the petitioners Sri H.N. Singh assisted by Sri Anil Kumar Shukla and Sri Abhishek Kumar, Advocates essentially raised the following grounds: (i) If the land owners, who had given their consent for their land to be auctioned, did not accept the mining right at a price over and above the highest bid then they would be given the compensation as would be decided and given by the State Government. In the instant case, learned counsel for the petitioners submitted that if the petitioners were given the mining rights then the respondent no. 5 who was also a co-sharer and had not offered to mine at a rate higher than the highest bidder then he would definitely be given the compensation as per his share. In the instant case, learned counsel for the petitioners submitted that if the petitioners were given the mining rights then the respondent no. 5 who was also a co-sharer and had not offered to mine at a rate higher than the highest bidder then he would definitely be given the compensation as per his share. This is the compensation he would have received had the highest bidder been given the lease. (ii) Learned counsel for the petitioners has submitted that when initially the petitioners and the respondent no. 5 were ready to give the land, which was in their possession, for mining purposes then definitely the respondent no. 5, in the event he decided not to take the mining lease, would only get the compensation commensurate to his share. (iii) Learned counsel for the petitioners has submitted that if the respondent no. 5 was submitting, as it had been stated in the short counter affidavit, that the petitioners had in fact entered into an agreement with one Balwant Singh, son of Paras Singh, who according to the respondent no. 5 would actually mine the minerals, then it mattered a little, as firstly the alleged agreement was an unregistered agreement and also if the petitioners would sub-lease, they would suffer the consequences of sub-letting the lease rights and, therefore, the grounds raised in the counter affidavit were of no consequence. (iv) What is more, the petitioners had submitted that the approval dated 4.9.2023 would enable the respondent no. 4 to get the letter of intent which meant that the respondent no. 4 would get the lease in his favour and the respondent no. 5 would get the compensation as would be fixed by the State Government. Learned counsel, therefore, submitted that if the petitioners got the lease to mine from the land in question then also the respondent no. 5 would only get the compensation fixed by the Government. (v) Under such circumstances, it was submitted by the petitioners that if the land was to be mined by the petitioners then the respondent no. 5 was only to get a compensation. It mattered little as to who would mine, the highest bidder or the owners who had given a bid higher than the highest bid. 5. Sri Shashi Nandan, learned Senior Counsel assisted by Sri A.K.S. Parihar, learned counsel appearing for respondent no. 5 was only to get a compensation. It mattered little as to who would mine, the highest bidder or the owners who had given a bid higher than the highest bid. 5. Sri Shashi Nandan, learned Senior Counsel assisted by Sri A.K.S. Parihar, learned counsel appearing for respondent no. 5, however, has submitted that the petitioners if were aggrieved by the impugned order, which had been passed by the District Magistrate, then they had a right of Appeal under Rule 79 of the Rules and thereafter they had a right to file a Revision. He has submitted that even though Ram Ji Dubey had 1/3rd share in the property, the family settlement dated 30.4.1992 which was being depended upon by the petitioners had given the respondent no. 5 a lesser share. Learned Senior Counsel for the respondent no. 5 further submitted that the petitioners had in fact sold their mining rights to Balwant Singh without the consent of respondent no. 5. 6. Learned Additional Chief Standing Counsel Ms. Priyanka Midha supported the impugned order and submitted that the petitioners could not get any right once one co-sharer had refused to get the mining rights. 7. Having heard Sri H.N. Singh, learned Senior Advocate assisted by Sri Anil Kumar Shukla and Sri Abhishek Kumar, learned counsel for the petitioners; Ms. Priyanka Midha, learned Additional Chief Standing Counsel appearing for respondent nos.1, 2 and 3 and Sri Shashi Nandan, learned Senior Advocate assisted by Sri A.K.S. Parihar, learned counsel for respondent no. 5, we are of the view that the order dated 4.9.2023 cannot be sustained in the eyes of law. 8. The petitioners along with the respondent no. 5 had with open eyes consented to the mining of their land which was their Bhumidhari. The petitioners and the respondent no. 5 would be entitled for the compensation if the respondent no. 4 mined the minerals from the land in question. Also such of the owners who did not give a higher bid would get the compensation while the owners who gave a higher bid would get into the mining work. We are also of the view that the ground which had been taken by the respondent no. 5 that there was no family settlement dated 30.4.1992 is not tenable. Also such of the owners who did not give a higher bid would get the compensation while the owners who gave a higher bid would get into the mining work. We are also of the view that the ground which had been taken by the respondent no. 5 that there was no family settlement dated 30.4.1992 is not tenable. The earlier “no objection” was given on the basis of the settlement which had settled the share and now it did not lie the mouth of respondent no. 5 to say he was being given a lesser share. If the respondent no. 4 mines, the respondent no. 5 would get only such compensation as he was entitled for. Therefore, it was wrong on the part of the respondent no. 5, to say that the petitioners were lessening his share in the property and, therefore, they may not be given the right to mine. We are also of the view that the partnership which the respondent no. 5 alleges had been entered into by the petitioners and one Balwant Singh was not to come in the way of the mining lease to the petitioners. If the petitioners had entered into in a partnership with any outsider and if sub-letting was not allowed then they would suffer the consequences. However, since this ground was not taken by the District Magistrate, it is not required to be dealt with in this order. Still further, the ground taken by the respondents that the petitioners had an alternative remedy of filing an Appeal and thereafter a Revision has no legs to stand. The petitioners and the respondent no. 5 had offered their lands to the District Magistrate for mining purposes as per Rule 23(2)(d) of the Rules. The bids were invited and when the petitioners had offered their bid which was higher than the highest bid then nothing further had to be decided. The respondent no. 5 would get the compensation as per the proviso to Rule 23(2)(d) of the Rules just as he would have got had the highest bidder in the tender got the lease. Since nothing further had to be decided and only the question that who should be granted the mining lease had to be looked into when the respondent no. 5 would get the compensation as per the proviso to Rule 23(2)(d) of the Rules just as he would have got had the highest bidder in the tender got the lease. Since nothing further had to be decided and only the question that who should be granted the mining lease had to be looked into when the respondent no. 5 had refused to take the mining rights despite the fact that he had earlier given his consent, we are of the view that nothing further could have been decided by the Appellate Court and thus the case was not required to be relegated to the Appellate or Revisional forum. 9. Under such circumstances, the order dated 4.9.2023 passed by the District Magistrate, Sonbhadra is quashed and is set-aside. The petitioners may now be given the mining lease for mining on the land in question comprising plot no. 454 area 0.5190 hectare; plot no. 460 area 0.0760 hectare; plot no. 461-Ka area 0.9360 hectare and plot no. 461-kha area 0.4020 hectare situated in village Billi Markundi, Pargana Agori, Tehsil Obra, District Sonbhadra forthwith. The respondent no. 5 would be given the compensation as is envisaged in the proviso to Rule 23(2)(d) of the Rules. 10. With these observations, the writ petition stands allowed.