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HARI MOHAN RAI versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Hari Mohan Rai v. State Of U.P. And Others - WRIT - C No. 18354 of 2006 [2007] RD-AH 1331 (24 January 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.35

Civil Misc.Writ Petition No. 18354 of 2006

Hari Mohan Rai

      Versus

    State of U.P. and others

Hon.R.P.Misra, J.

Hon.Shishir Kumar, J.

By means of the present writ petition the petitioner has approached this Court for quashing the order dated 28.1.2006 passed by the District Magistrate, Varanasi, respondent No.2 contained as Annexure 1 to the writ petition. Further issuing a writ in the nature of mandamus directing the State Government to adjust the proportionate royalty of Chandpur, block-2 in future royalty of the petitioner's mining lease.

The facts arising out of the present writ petition are that in view of the existing policy of the State Government regarding grant of mining rights through auction, an auction notice was issued on 25.11.2002  by the respondent No.2 inviting applications for grant of mining lease.  It may be stated here that out of which large number of areas had been advertised but the controversy in the present writ petition is in respect of to the area Chandpur Block 2 having an area of 152 acres.  The aforesaid area is situated in Gram Panchayat Chandpur.  The petitioner came to know recently on 23.4.2002 in a meeting of Gaon Sabha a resolution was adopted that there should not be any mining lease in the area Chandpur Khand 2 in Plots Nos. 411, 414, 415 M having an area of 152 acres.  The Gaon Sabha adopted the resolution for tree plantation keeping in mind the environmental pollution.  The District Magistrate and Sub-Divisional-Officer Varanasi have ignored the said resolution of Gaon Sabha and advertised the area inviting the applications for grant of mining lease through auction vide auction notice dated  26.11.2002.  The auction took place on 30.1.2003 and the petitioner participated in the said auction and became successful for all the six areas namely Tarapur Khand-I,  Tarapur Khand-2, Saraidangar Khand-I, Tikari, Mokalpur Khand-1 and Chandpur Khand-2.  It may be stated here that according to the Government Order dated 2.11.2002, initially the auction was held for individual area and at that time total bid amount offered was Rs.38,52,000.00.  Taking this amount as a meagre amount the whole area was put as one unit then total highest bid amount became Rs.61,11,000/-.  As the petitioner was the highest bidder, the bid of the petitioner was accepted.  The matter was referred to the State Government and the approval was granted.  The forest department after getting information that the District Magistrate has included Chanpur Block-2 for the purposes of grant of mining lease through auction,  the Divisional Forest Officer on 10.3.2003 wrote a letter to the District Magistrate, Varanasi to make the position clear whether the soil conservation work be made complete for forest plantation or not.  The aforesaid letter has been annexed as Annexure 5 to the writ petition.  After approval given by the State Government, the mining lease was executed on 24.1.2004. At the time of execution of the lease deed this fact came to the knowledge of the petitioner that there was no mineral available in Chandpur Block-2 and plantation by Gaon Sabha and forest department are available.  Though this fact was indicated at the time of auction but the district officer informed that after having report of the Geologist the matter shall be adjusted in respect of other areas.  The petitioner submitted a representation to this effect that there is no mineral available in Chandpur Block-2 and the proportionate royalty fixed for Chandpur Block-2 be got adjusted against the royalty for which the petitioner has a lessee, is duty bound to pay according to terms of future installments.  On the representation filed by the petitioner, the Additional District Magistrate directed the Assistant Geologist for demarcation and to  give immediate report.  A report was submitted by the Assistant Geologist on 17.8.2004 and it has clearly been stated in the said report that there is no mineral available for mining work.

After the report submitted by the Assistant Geologist, the petitioner submitted a representation before the State Government clearly indicating that there is no mineral available in Chandpur block-2, therefore,  the royalty may be adjusted and the petitioner has prayed for adjustment of the proportionate royalty of Chandpur Block 2 in the future royalty.  Nothing was done then the petitioner filed a writ petition before this Court as Writ Petition No.55264 of 2005  and the writ petition was disposed  of finally with a direction that the petitioner may file a fresh representation  before the respondent No.2 and the same may be decided by a reasoned order, if possible, within a period of two months from the date of receipt of representation.  In pursuance of the order passed by this Court, the District Magistrate, respondent No.2 has rejected the application by its order dated 28.1.2006 and it has been held that without sanction of the State Government, no other area can be allotted to the petitioner and there is no provision for adjustment of the royalty.

It has been argued on behalf of the petitioner that Rule 27 contained in Chapter IV of U.P. Minor Mineral Rules (Concession) Rules, 1963 clearly indicates that copy of the auction notice shall be sent to Gaon Sabha or any other local authority in whose jurisdiction the area is situated.  The other condition given in Rule 27 is that the notice for general information shall be given by beat of drum in the locality.  In the present case, copy of the notice was never given to the Gaon Sabha.  There was a strong protest of the Gaon Sabha not to declare Chandpur Block-2 for the purposes of mining lease.  The view taken in the impugned order that it was the duty of the petitioner for being satisfied regarding the area, is wholly unjustified for the simple reason that any intending prospective bidder of other area than district Varanasi will read the line of auction notice which is published in newspaper as the auction notice clearly indicates regarding availability of mineral and it is a composite phenomenon and only compact area full of mineral are available for declaration, the authority taking this view technically rejection of petitioner's representation is wholly illegal.  The District Magistrate vested with the power of the State Government in exercise of delegation of power is a responsible officer for execution of lease deed as provided in Rule 14 of the U.P.Minor Mineral (Concession) Rules, 1963.  Now this fact raised was informed by the District Magistrate and a report of that effect was informed from the Geologist, who is appropriate authority regarding the dispute of availability of mineral.   The report of the Assistant Geologist has been ignored without assigning any reason.  Once a finding has been recorded by the District Magistrate while deciding the representation of the petitioner that without having consent/approval of the State Government there cannot be any adjustment of reduction of royalty or proportionate adjustment of royalty then there cannot be any occasion for the District Magistrate in rejecting the representation of the petitioner.  In such situation, the petitioner submits that the State Government be directed to adjust the proportionate royalty of Chandpur Block-2  in future royalty  of the petitioner's mining lease otherwise the petitioner will suffer irreparable loss.  Aggrieved by the rejection of the representation of the petitioner by the respondent No.2, the petitioner has approached this Court.

By order-dated 4.4.2006 the learned Standing Counsel was granted one-month time to file a counter affidavit.  The counter and rejoinder affidavits have been exchanged, as such, with the consent of the parties the writ petition is being disposed of finally.

In the counter affidavit, filed on behalf of the respondents the allegation made in the writ petition has been denied and it has been submitted that on the basis of the direction issued by this Court, the petitioner has submitted a representation and the representation of the petitioner has already been decided with a reasoned and detailed order and the District Magistrate has given a valid reason in not accepting the contention of the petitioner.  It has further been submitted by Sri Alok Kumar Singh, Learned Standing Counsel that the State Government is the owner of mineral  found within the State, therefore, the State Government go for the purposes of development of mineral and getting maximum amount of revenue, may lease out any area for excavation of mineral unless prohibited by law.  The State Government has notified the mining area of Chandpur  Block-2 along with other areas.  The Gaon Sabha or any local authority have not authority or jurisdiction under the law to create any hindrance upon the power of the State Government.  It is incorrect to state that there was any resolution and if any resolution was there it was never received in the office of the respondents.  As the proceeding for grant of auction lease has already been initiated vide notification dated 26.11.2002, and auction of the area has also taken place on 30.1.2003, therefore, in view of this clarification sought by forest department has got no relevance.  It is also incorrect to state that any assurance was given to the petitioner by the auctioning authority at the time of auction in respect of adjustment of area.  It has further been submitted on behalf of the respondents that the survey made by the Geologist was in the month of August, 2004 when the water level of the river was raised.  However, after  receding of the water level,  large amount of sand is accumulated.  It is noteworthy that the area Chandpur Khand 2 is divided in two parts.  First is the riverbed other is the upper crest of the riverside.  On the upper crest of river side there may be a layer of earth over the sand but in the river bed considerable amount of sand is found after the water of river recedes. In view o the aforesaid fact, the contention of the petitioner is completely against the facts and ground situated on spot.  There is no provision under the U.P. Minor Mineral (Concession) Rules 1963 for adjustment or return of royalty as the petitioner has participated in the auction willfully and knowingly after inspecting the area as provided under paragraph 13 of the auction notice itself know after obtaining  the lease and after obtaining the deed.  Now the petitioner is estopped for raising any objection.  Further it has been stated that the petitioner has got an alternative remedy by way of filing an appeal and revision under Rules 77 and 78 of the Concession Rules 1963 before the Divisional Commissioner and the State Government.  In view of the aforesaid fact the writ petition is liable to be quashed.

We have perused the submission made on behalf of the parties and have perused the record.

There is no dispute to this respect, which is apparent from the record that on the basis of auction the petitioner was highest bidder. He was granted the mining lease.  The limited dispute before this Court is whether the area Chandpur Khand 2 having an area of 152 acres, the minerals are available or not.  This is a question of fact, which cannot be decided by this Court.  Admittedly, the petitioner as provided under the Rules has participated in the auction after verification of the areas to the effect that whether in the particular areas the minerals are available or not.  From the perusal of the paragprah 13 of the auction notice, it is a presumption that the petitioner has inspected the areas regarding availability of the minerals. As such, whether the petitioner can be given benefit as he claimed in the writ petition. The petitioner is not able to show before this Court regarding any provision under the Rules that in such situation the royalty amount can be adjusted in another mining lease and another area allotted to the petitioner for the purposes of loss as the petitioner submits.  The District Magistrate, respondent No.2 while deciding the representation of the petitioner of the grievances raised by the petitioner has recorded a finding and  has clearly held that the aforesaid areas were given in auction and before the auction every bidder was informed that they may be satisfied regarding the availability of the minerals in the notified areas.    Clause 13 of the auction notice clearly states that every participant should be satisfied regarding the areas and regarding the availability of the minerals.  As the petitioner was fully satisfied and participated in the auction and the lease deed was executed in his favour out of the free will and it was not imposed upon the petitioner as such the request of the petitioner cannot be acceded.

These findings have been recorded by the respondent No.2 on the basis of relevant record and the condition laid down in the clause 13 of the Condition of auction notice, binds the petitioner that the petitioner cannot raise objection subsequently after grant of lease in his favour.

But one thing is relevant to note in the order passed by the District Magistrate that the authority regarding the adjustment of areas as well as adjustment of royalty vested in the State and the respondent No.2 has got no authority.

In view of the aforesaid fact, we are of the view that in case, the petitioner approaches the State Government respondent No.1 regarding his grievances, the respondent No.1 may consider the same on the basis of the relevant record and on the basis of the relevant provisions of the Rules.  

In view of the aforesaid fact, the present writ petition is disposed of with an observation that in case, the petitioner approaches the respondent No.1, the respondent No.1 will consider the grievances of the petitioner and pass a detailed and reasoned order according to law if possible, within a period of three months from the date of filing of the representation by the petitioner.

There shall be no order as to costs.

24.1.2007

SKD


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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