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2025 DIGILAW 1128 (ALL)

Gurbaj Singh v. State Of U. P.

2025-09-11

AMITABH KUMAR RAI, SARAL SRIVASTAVA

body2025
JUDGMENT : 1. Heard Sri Syed Mohd. Fazal, learned counsel for the petitioner and Sri Rajeshwar Tripathi, learned Chief Standing Counsel-II for State-respondents. 2. The petitioner by means of the present writ petition has assailed the order dated 26.09.2019 passed by the respondent no.1 in Revision No.12(R)/VSM/2019, the recovery certificate dated 14.11.2019 issued by the respondent no.2 and the order dated 17.12.2018 issued by respondent no.2. The petitioner has further prayed for a writ of mandamus directing the respondents to allow the application of the petitioner dated 25.06.2018 and refund the security amount of Rs.4,27,96,100/-. 3. The facts, in brief, are that the petitioner participated in e-auction for carrying out mining activity in respect to Khasra Nos.8Mi-13Mi, 17Mi, 18-19, 20Mi-22Mi, 25Mi-27Mi, 30Mi, 37Mi, 38Mi-41Mi, 53Mi- 57Mi, 237Mi-238Mi, 239Mi-240Mi situated in Village Pachayara, Khand-I, Tehsil Loni, District Ghaziabad (River Yamuna) for a period of five years. The petitioner, being the highest bidder, was granted tender to carry out mining operation on the aforesaid plots. Accordingly, a lease was executed by the petitioner with the respondents on 02.02.2018 for a period of five years. The petitioner, thereafter, started mining operation, excavating sand and minor mineral. 4. The case of the petitioner is that the petitioner had been stopped from carrying out mining operation by the respondents illegally from 20.03.2018 to 10.04.2018, and thereafter, from 09.06.2018 to 25.06.2018, due to which petitioner suffered financial loss, therefore, the petitioner submitted an application on 25.06.2018 for surrendering the lease because it was not viable for the petitioner to carry out mining activity. It is pertinent to note that the petitioner, after executing the lease deed, deposited the security amount and first installment. However, the petitioner did not deposit the second installment due on 01.04.2018. Consequently, the District Mining Officer, Ghaziabad, issued a notice dated 25.05.2018 asking the petitioner to deposit the second installment of Rs. 4,27,96,100/- by 31.05.2018. 5. The petitioner did not deposit the second installment due on 01.04.2018 despite the notice dated 25.05.2018. Another notice dated 30.07.2018 was issued by the District Mining Officer, Ghaziabad directing the petitioner to deposit the third installment within ten days from the notice. 6. 4,27,96,100/- by 31.05.2018. 5. The petitioner did not deposit the second installment due on 01.04.2018 despite the notice dated 25.05.2018. Another notice dated 30.07.2018 was issued by the District Mining Officer, Ghaziabad directing the petitioner to deposit the third installment within ten days from the notice. 6. It transpires from the record that the Additional District Magistrate (F/R), on behalf of the District Magistrate, Ghaziabad, passed an order dated 28.06.2018 rejecting the application of the petitioner dated 25.06.2018 for surrender of lease and directed the petitioner to deposit the second installment. Against the said order, the petitioner preferred statutory appeal before the Commissioner, Meerut Division, Meerut, registered as Appeal No.01139 of 2018. 7. It appears that during the pendency of appeal, petitioner preferred Writ-C No.26776 of 2018 in which this Court passed an order on 24.08.2018 directing the Appellate Authority to decide the application of the petitioner with reference to Section 4-A(4) of the Mines and Minerals (Regulation & Development) Act, 1957 (hereinafter referred as 'Act, 1957'). 8. The Appellate Authority, thereafter, passed an order dated 01.10.2018 in Appeal No.01139 of 2018 whereby the Appellate Authority remanded the matter to the District Magistrate, Ghaziabad to decide the application of the petitioner in the light of the direction of this Court in Writ-C No.26776 of 2018. 9. The District Magistrate, thereafter, in compliance with the order passed by the Appellate Authority, passed an order on 17.12.2018 holding that Section 4-A(1) of the Act, 1957, is not applicable in respect to minor minerals. Consequently, he rejected the application of the petitioner dated 25.06.2018 and held that the petitioner is liable to pay the second and third installments due on 01.04.2018 and 01.07.2018 respectively. 10. The petitioner, thereafter, preferred statutory revision bearing Revision No.12(R)/VSM/2019 before the Revisional Authority under Rule 78 of the U.P. Minor Mineral (Concession) Rules, 1963 (hereinafter referred to as 'Rules, 1963') against the order dated 17.12.2018 passed by the District Magistrate, Ghaziabad. The petitioner has averred in paragraph nos.10 and 13 in the revision that because of the hindrance created by the respondent-authority, petitioner could not carry out mining activity between 20.03.2018 to 10.04.2018 and 09.06.2018 to 25.06.2018, and in such view of the fact, the petitioner cannot be penalised for the fault of the respondents who did not permit the petitioner to carry out mining operation. 11. The Revisional Authority partly affirmed the order dated 17.12.2018. 11. The Revisional Authority partly affirmed the order dated 17.12.2018. The Revisional Authority, while passing the impugned order, has directed the District Magistrate to consider the issue whether there was obstruction by the respondents in carrying out the mining operation from 01.04.2018 to 30.06.2018, and if it is correct, the District Magistrate, Ghaziabad, should adjust the security amount in the installments of the petitioner. 12. Pursuant to the order passed by the Revisional Authority dated 26.09.2019 in Revision No.12(R)/VSM/2019, the District Magistrate passed another order on 14.11.2019 modifying his earlier order of recovery and directed the petitioner to deposit the two installments due to the petitioner on 01.04.2018 and 01.07.2018. 13. It also transpires from the record that in the meantime, the lease deed of the petitioner was terminated by order dated 29.09.2018 of the District Magistrate, Ghaziabad. 14. The State-respondent has filed counter counter-affidavit contending inter alia that there was no obstruction/hindrance by the State-authority in carrying out the mining operation by the petitioner. It has been further averred that the petitioner voluntarily participated in the tender and executed the lease deed; therefore, the petitioner is bound by the terms and conditions of the lease deed. It has further been stated that there was a stipulation in the lease deed that a 360 ° CCTV Camera was to be installed in the leased area, the petitioner installed the same, but it was not operational and petitioner continued the mining in the main water stream of the river. For the said illegal mining by the petitioner, a proceeding was initiated against the petitioner and an order imposing fine of Rs.15 lacs was passed on 30.03.2018, which the petitioner deposited. 15. It is further averred that the second installment was due on the petitioner on 01.04.2018 as per the terms and conditions of the mining lease, and accordingly, a demand notice dated 25.05.2018 was rightly issued to the petitioner to deposit the royalty. It is further averred that the petitioner deposited a cheque of Rs.1 Crore bearing Cheque No.00008 dated 08.06.2018, which was returned by the State Bank of India, Branch Raj Nagar, Ghaziabad, with the remarks 'Drawers Signature Differs'. Accordingly, it is pleaded that the conduct of the petitioner is not fair and proper. 16. It is further averred that the petitioner deposited a cheque of Rs.1 Crore bearing Cheque No.00008 dated 08.06.2018, which was returned by the State Bank of India, Branch Raj Nagar, Ghaziabad, with the remarks 'Drawers Signature Differs'. Accordingly, it is pleaded that the conduct of the petitioner is not fair and proper. 16. The respondents further stated that there is no provision under the Rules, 1963, for surrendering mining lease granted under Chapter IV of the Rules, 1963, therefore, the application of the petitioner for the surrender of the lease could not be allowed. The respondents further averred that there was no disruption by the respondents in the mining operation of the petitioner, and the mining operation was not stopped by the respondents, and the same was stopped due to the conditions mentioned in the Environmental Clearance Certificate/Mining Lease Certificate that no mining operation can be carried out during the monsoon season i.e. 01.07.2018 to 30.09.2018. 17. The respondents further stated that Rule 58 of the Rules, 1963, provides for the recovery of installments/dues and also provides for the cancellation of the mining lease. The right to cancel the lease is in addition to and without prejudice to the right of the State Government to realize such dues from the lessee as arrears of land revenue. On the basis of the aforesaid pleadings, the respondent has stated that the writ petition lacks merit and deserves to be dismissed. 18. A rejoinder affidavit has been filed by the petitioner denying the averments made in the counter affidavit. 19. Challenging the aforesaid order, learned counsel for the petitioner has vehemently contended that the finding returned by the District Magistrate, Ghaziabad, as well as the Revisional Authority, that there is no provision under the Rules, 1963, to surrender the lease is incorrect. He further submits that Section 4-A(4) of the Act, 1957 confers power upon the authority to consider the application for surrender of lease, and in such view of the fact, the findings returned by the authorities are illegal and in contravention of the provisions of Section 4-A(4) of the Act, 1957. He further submits that Section 4-A(4) of the Act, 1957 confers power upon the authority to consider the application for surrender of lease, and in such view of the fact, the findings returned by the authorities are illegal and in contravention of the provisions of Section 4-A(4) of the Act, 1957. Accordingly, it is submitted that it was incumbent upon the authority to have considered the application of the petitioner under Section 4-A(4) of the Act, 1957, for surrendering of the lease on merit, particularly in view of the fact that the petitioner was not able to carry out the mining operation for the reason beyond his control. 20. He further contends that even otherwise, the petitioner cannot be asked to deposit the 2 nd & 3 rd installments when he did not carry out any mining activity, and no notice as contemplated under Rule 58 of the Rules, 1963 was given to the petitioner before passing any order of recovery. He further contends that if the authority was of the opinion that there is no provision which permit the authorities to consider the application for surrender of lease of the petitioner, then the only mode by which the petitioner could be stopped from carrying out mining operation was to terminate the lease deed of the petitioner in accordance with law, and since in the instant case, termination of lease was not done in accordance with Rule 58 of the Rules, 1963, therefore, the consequence thereof culminating into the recovery of 2 nd and 3 rd installments is also illegal. Accordingly, it is submitted that the impugned order is not sustainable in law. 21. Learned counsel for the petitioner has placed reliance upon the judgement of the Apex Court in the case of State of Haryana Vs. Ram Kishan and Others AIR 1988 SC 1301 , as well as the judgement of this Court in the case of Vipul Tyagi Vs. State of U.P. & Others passed in Writ-C No.17258 of 2020 22. 21. Learned counsel for the petitioner has placed reliance upon the judgement of the Apex Court in the case of State of Haryana Vs. Ram Kishan and Others AIR 1988 SC 1301 , as well as the judgement of this Court in the case of Vipul Tyagi Vs. State of U.P. & Others passed in Writ-C No.17258 of 2020 22. Per contra, learned Chief Standing Counsel-II would contend that in the instant case, the petitioner did not carry out the mining operation from 20.03.2018 because of the fact that he did not comply with the terms and conditions of the mining lease inasmuch as though, he had installed 360 0 CCTV Camera in the mining area, but that was not functional and proceedings for violation of the terms and conditions of the mining lease was initiated against the petitioner, and fine of Rs.15 lacs was imposed upon the petitioner by order dated 30.03.2018. 23. He submits that against the order dated 30.03.2018, the petitioner preferred revision, which was also dismissed by the Revisional Authority, and thereafter, the petitioner deposited Rs.15 lacs in compliance with the order of the District Magistrate dated 30.03.2018. Accordingly, he submits that the respondent-State did not obstruct in carrying out the mining operation by the petitioner, and it was solely on account of the fault of the petitioner that he did not carry out the mining operation for the period from 20.03.2018 to 10.04.2018. 24. He further submits that so far as the contention of the petitioner that he did not carry out mining operation from 09.06.2018 to 25.06.2018 because of the obstruction created by the respondent-State, the said contention is contrary to the pleading of the petitioner in the memo of revision inasmuch as in the memo of revision, he has categorically stated in para-30 of the revision that till 25.06.2018 i.e. the date of submission of surrender application of the petitioner, he had carried out mining operation. Accordingly, he submits that in such view of the fact, the contention advanced by the learned counsel for the petitioner that the petitioner was obstructed by the respondent authority in carrying out the mining operation is incorrect, which is manifest from the record. 25. Accordingly, he submits that in such view of the fact, the contention advanced by the learned counsel for the petitioner that the petitioner was obstructed by the respondent authority in carrying out the mining operation is incorrect, which is manifest from the record. 25. He further submits that the petitioner's conduct is not fair inasmuch it is admitted on record that the petitioner had deposited a Cheque of Rs.1 Crore bearing Cheque No.00008 dated 08.06.2018 towards part payment of 2 nd installment dated 01.04.2018 which was dishonoured with remark 'Drawers Signature Differs', and in such view of the fact, the petitioner is not entitled to get any relief. 26. It is further contended that Section 4-A(4) of the Act, 1957 is not attracted in the instant case for the reason that reading of Section 4-A of the Act, 1957 reveals that the said section sets out the condition when the lease would lapse. It prescribes that where the holder of mining lease fails to undertake mining operations for a period of two years after the date of execution of the lease or if he had commenced mining operations and is discontinued the same for a period of two years, the lease shall lapse on expiry of the period of two years from the date of execution of the lease or as the case may be, discontinuance of the mining operations. Accordingly, it is submitted that the authority below has not committed any error in holding that Section 4-A(4) of the Act, 1957 is not attracted in the present case. 27. He further submits that so far as the argument of learned counsel for the petitioner that lease deed of the petitioner had not been terminated in accordance with Rule 58 of the Rules, 1963, he contends that the lease deed of the petitioner had been cancelled by the District Magistrate by order dated 29.09.2018 and the petitioner in para-30 of the writ petition has categorically stated that against the said order, the petitioner preferred an appeal which was also dismissed in May, 2019. It is submitted that the order terminating the lease of the petitioner has attained finality, and in such view of the fact, the petitioner is barred from taking any plea with regard to the legality of the order cancelling/terminating the lease deed. 28. It is submitted that the order terminating the lease of the petitioner has attained finality, and in such view of the fact, the petitioner is barred from taking any plea with regard to the legality of the order cancelling/terminating the lease deed. 28. We have considered the rival submissions advanced by the learned counsel for the parties and perused the record. 29. The facts in detail have already been delineated above, therefore, they need not be reiterated to unnecessarily burden the judgement. Accordingly, this Court proceeds to consider the submissions advanced by the learned counsel for the parties. 30. So far as the contention of the learned counsel for the petitioner that the finding of the authority below that there is no provision under the Act, 1957 and the Rules, 1963 to surrender the lease whereas Section 4-A(4) of the Act, 1957 provides for surrendering the lease, and thus, the order impugned is contrary to law is concerned, we do not find any merit in the aforesaid contention for the reasons delineated below. For the convenience, Section 4-A(4) of the Act, 1957 is reproduced herein-below:- "Section 4-A.Termination of prospecting licences of mining leases.- (4)Where the holder of a mining lease fails to undertake mining operations for a period of [two years] after the date of execution of the lease or, having commenced mining operations, has discontinued the same for a period of [two years] the lease shall lapse on the expiry of the period of [two years] from the date of execution of the lease or, as the case may be, discontinuance of the mining operations: [Provided that the State Government may, on an application made by the holder of such lease before it lapses and on being satisfied that it will not be possible for the holder of the lease to undertake mining operations or to continue such operations for reasons beyond his control, make an order, with a period of three months from the date of receiving of such application, subject to such conditions as may be prescribed, to the effect that such lease shall not lapse: Provided further that such lease shall lapse on failure to undertake mining operations or inability to continue the same before the end of a period of six months from the date of the order of the State Government: Provided also that the State Government may, on an application made by the holder of a lease submitted within a period of six moths from the date of its lapse and on being satisfied that such non-commencement or discontinuance was due to reasons beyond the control of the holder of the lease, revive the lease within a period of three month from the date of receiving the application from such prospective or retrospective date as it thinks fit but not earlier than the date of lapse of the lease: Provided also that no lease shall be revived under the third proviso for more than twice during the entire period of the lease.". 31. The caption of Section 4-A(4) of the Act, 1957 is "Termination of Prospecting Licences of Mining Lease". The petitioner in the instant case has not placed reliance upon sub-sections (1), (2) & (3) of Section 4-A of the Act, 1957, and has placed reliance upon sub-section (4) of Section 4-A. 32. 31. The caption of Section 4-A(4) of the Act, 1957 is "Termination of Prospecting Licences of Mining Lease". The petitioner in the instant case has not placed reliance upon sub-sections (1), (2) & (3) of Section 4-A of the Act, 1957, and has placed reliance upon sub-section (4) of Section 4-A. 32. Perusal of Section 4-A(4) of the Act, 1957 reveals that the said sub-section deals with lapse of mining lease on the conditions enumerated under sub-section (4). The condition is that if the holder of the mining lease could not take mining operations for a period of two years after the date of execution of lease or, if he had commenced the mining operations, but discontinued the same for a period of two years, the lease shall lapse on the expiry of two years from the date of execution of the lease or, as the case may be, discontinuance of mining operations for two years from the date of discontinuance of mining operations. 33. There is difference between 'lapse' and 'surrender'. In legal parlance, a 'lapse' refers to the termination of right, privilege, interest, or benefit due to failure to meet conditions, a change in circumstances, the passage of time or neglect whereas 'surrender' signifies a voluntary act of relinquishment. 34. Section 4-A (4) of the Act, 1957 refers to lapse of mining lease on the existence of certain conditions enumerated in the said sub-section. We could not find any provision either in the Act, 1957 or in Rules, 1963, which permits a leaseholder to submit a surrender application. Learned counsel for the petitioner could not point out any other provision either in the Act, 1957 or in the Rules, 1963 which permits the petitioner to move an application for surrendering the lease, and the authorities are bound to consider the same. In such view of the fact, the contention of learned counsel for the petitioner that authorities are authorized to consider surrender application under Section 4-A (4) does not stand to merit and is hereby rejected. 35. In such view of the fact, the contention of learned counsel for the petitioner that authorities are authorized to consider surrender application under Section 4-A (4) does not stand to merit and is hereby rejected. 35. The contention of the learned counsel for the petitioner on the strength of Rule 58 of the Rules, 1963 is also misconceived for the reason that the lease deed of the petitioner has been terminated by the District Magistrate by order dated 29.09.2018 which order was assailed by the petitioner in appeal as has been averred by him in para-30 of the writ petition which is reproduced herein-below:- "30. That being aggrieved by the order dated 29.09.2018 the petitioner had filed an appeal before the Commissioner, Meerut Mandal, Meerut, which was dismissed in May, 2019." 36. The appeal of the petitioner against the termination order of the lease has attained finality inasmuch as the petitioner could not point from the record that the order passed by the Appellate Authority rejecting the appeal of the petitioner against the termination order of the lease has been assailed by the petitioner in any appropriate proceeding and the said order has been set aside. 37. So far as the contention of the learned counsel for the petitioner that he was obstructed by the respondents in carrying out the mining operation is concerned, it has come on record that because of the fact that the petitioner did not comply with the terms and conditions of the lease inasmuch as though he had installed 360 0 CCTV Camera on the mining site, but on inspection it was found that it was not operational, and thus, the act of the petitioner was in violation of the terms and conditions of the lease, and thereafter, the respondent authority initiated the proceeding against the petitioner for violation of the terms and conditions of the lease and passed an order dated 30.03.2018 imposing a penalty of Rs.15 lacs, which order was assailed by the petitioner in revision before the Revisional Authority, which was also dismissed, and thereafter, the petitioner had acquiesced to the order of the District Magistrate dated 30.03.2018 and deposited Rs.15 lacs in compliance of the order of the District Magistrate, Ghaziabad. 38. 38. So far as the averment of the petitioner that the petitioner was not allowed to carry out mining operation from the period 09.06.2018 to 25.06.2018 by the respondents is concerned, it is pertinent to note that said contention is contrary to the record as the petitioner in the memo of revision in paragraph 30 has categorically stated that he continued mining operation till 25.06.2018. Para-30 of the memo of revision is reproduced below:- "30. That it is relevant to submit here in that till 25.06.2018 (date of submission of surrender/termination application) the revisionist had carried out mining to the tune of 91490 cubic meter for which the mining department has issued Form MM11 against which a royalty of Rs. 4,27,69,210/- is determined." 39. From the aforesaid discussion, it is manifest from the record that the petitioner did not carry out mining operation because of his fault as he had violated the terms and conditions of the lease deed. Thus, the petitioner has failed to establish that the obstruction in carrying out mining operation was created by the respondent-State. 40. So far as the judgement of the Apex Court in the case of State of Haryana (supra) relied upon by the learned counsel for the petitioner is concerned, the said judgement has been rendered in different facts inasmuch as in the said case, the appeal was preferred by the State of Haryana against the order of High Court by which the High Court has set aside the order passed by the State Government terminating the lease of the respondent. The Apex Court found that since the provision of Section 4-A of the Act, 1957 has not been complied with, therefore, the cancellation of lease prematurely by the State is illegal, and the action of the State in cancelling the lease was also in violation of principles of natural justice, therefore, the order passed by the High Court was correct and accordingly, the High Court rightly dismissed the appeal. In the said case, the Apex Court in para-11 has also held that a lease in respect of minor minerals could also be terminated in appropriate cases. 41. The Apex Court in the said judgement records that Section 4-A of the Act, 1957, is meant for termination of the lease and does not permit the lessee to submit a surrender application for surrendering the lease. 41. The Apex Court in the said judgement records that Section 4-A of the Act, 1957, is meant for termination of the lease and does not permit the lessee to submit a surrender application for surrendering the lease. The issue before the Apex Court in the aforesaid judgement was whether termination of lease by State was in accordance with law, and it did not consider the issue whether an application for surrender of lease by a leaseholder would be maintainable under Section 4-A(4) of the Act, 1957, and the competent authority is bound to consider the said application, therefore, the judgement of the Apex Court in the case of State of Haryana (supra) does not render any assistance to petitioner's case. 42. So far, the judgement relied upon by the learned counsel for the petitioner in the case of Vipul Tyagi (supra) in respect of his contention that petitioner is liable to pay royalty only for the mineral excavated and consumed by the petitioner in view of Section 15(3) of the Act, 1957, we may point out that the judgment of co-ordinate Bench of this Court in Writ-C No.28087 of 2023 ( Raj Pratap Yadav Vs. State of U.P. And 4 others ) in para-38 has held that judgement of Vipul Tyagi (supra) is not binding precedent. Para-38 of the judgment is reproduced herein as under:- "38. In the backdrop of the aforesaid discussion, in a case of auction lease that is covered by Chapter IV of the Rules, 2021, to say that while considering an application of surrender of mining lease, 'royalty' would be payable only to the extent of the mineral removed or consumed, would not be appropriate. Doubtless, where there occurs violation of the terms and conditions of the mining lease which is not promptly attended to by the lessee, the authorities are required to take steps without delay for termination of the lease in the interest of all concerned. Doubtless, where there occurs violation of the terms and conditions of the mining lease which is not promptly attended to by the lessee, the authorities are required to take steps without delay for termination of the lease in the interest of all concerned. But where the mining lease deed executed in Form MM-6 or in similar format under the Rules made under the provisions of Section 15 (1) and (1-A) of the Act, 1957 provides for the quantity of minor mineral to be excavated annually in cubic meters, and the highest bid offered by the lessee, and the total amount of installments payable in the first year and subsequent years, which also form the consideration for the contract, then the installments would be payable under the terms of the lease. Therefore, the provisions of Section 15 (3) of the Act, 1957 cannot be read or interpreted in a manner to confer a benefit on the lessee for not paying the installments where no mineral has been removed or consumed by him. Thus, to this extent, the judgment of this court in Vipul Tyagi when read in the light of the judgment of the Supreme Court in D.K. Trivedi, the provisions of the Act 1957, and of the Rules of the State Government framed under the powers delegated by the Act 1957, would not operate as a binding precedent." 43. In view of the judgement of Raj Pratap Yadav (supra ) , the petitioner cannot contend that he is liable to pay the royalty on the mineral which has been excavated and consumed by him in view of Section 15 (3) of the Act, 1957. Thus, the judgement of Vipul Tyagi (supra) , which has been held to be not a binding precedent in the case of Raj Pratap Yadav (supra) is of no help to the petitioner. 44. Thus, for the reasons given above, we do not find any merit in the present writ petition. It is accordingly dismissed without any order as to costs.