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Babu Lal v. The State Of U.P. & Others - WRIT - C No. 35911 of 2006 [2007] RD-AH 2045 (8 February 2007)


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(Judgement Reserved on 7.11.2006)

(Judgement delivered on 8.2.2007)

Civil Misc. Writ Petition No.35911 of 2006

Babu Lal  vs. State of U.P. and others

Hon'ble S.U. Khan, J.

Heard learned counsel for the parties.  Previously petitioner was granted mining lease in respect of an area (Zone no.14/12) which is not in dispute in the instant writ petition.  It appears that petitioner also raised the minerals unauthorisedly from the adjoining area (Zone no.14/11) which was not  allotted to him hence District Magistrate, Allahabad issued a notice to the petitioner on 31.3.2004 calling upon the petitioner to show cause as to why total amount of Rs.9 lacs must not be directed to be deposited by him.  In the said notice price of the illegally raised mineral was stated to be Rs.1,80,000/- and it was further stated that royalty  comes to five times of the price hence under Section 21(5) of Mines and Minerals (Regulation and Development) Act 1957 petitioner should deposit Rs.9 lacs.  Thereafter in terms of the said notice an order was passed by the District Magistrate on 21.6.2004 determining that petitioner was liable to pay Rs.9 lacs as indicated in the notice.  Section 21(5) of the aforesaid Act is quoted below:

"Whenever any person raise, without any lawful authority, any, mineral from any land, the State Government may recover from such person the mineral so raised, or where such mineral has already been disposed of, the price thereof, and may also recover from such person rent, royalty or tax as the case may be, for the period during which the land was occupied by such person without any lawful authority."

Against the order dated 21.6.2004 petitioner filed appeal before  Commissioner being appeal no. 1 of 2005.

Appeal was dismissed by Commissioner, Allahabad division Allahabad on 19.12.2005.  Thereafter petitioner filed an application in the said appeal.  The said application was in the nature of recall, review and modification of earlier order of Commissioner dated 19.12.2005(copy of order dated 19.12.2005 is Annexure-4 to the writ petition).  On the said application some orders were passed on different dates including order dated 7.2.2006.  Through the said order petitioner was directed to show the provision under which Commissioner could review his order.  District Magistrate, Allahabad was also directed to show the provision under which royalty amounting to  5 times of the price  of illegally raised mineral could be recovered.  Ultimately on 11.2.2006 Commissioner passed another order in the appeal.  Under interim orders passed by Commissioner after decision of appeal (dated 19.12.2005) petitioner had been directed to deposit Rs.1,80,000/- which he had deposited.  Through order dated 11.2.2006 Commissioner directed the petitioner to deposit an additional amount of 10% of Rs.1,80,000/- within 15 days.  Commissioner further directed that the remaining amount shall be recovered by the District Magistrate only after obtaining clear orders in that regard by the Government.  It was further directed that until clear direction by the government, petitioner shall not be treated to be defaulter and shall not be precluded to do anything on the basis of  non-payment of the said amount.  Copy of order dated 11.2.2006 is Annexure-6 to the writ petition.

During pendency of aforesaid appeal of the petitioner before Commissioner, advertisement for grant of mining lease in respect of another area had been issued by the District Magistrate on 30.10.2005.  Petitioner had also applied for grant of lease under the said advertisement.  Respondent no.3 Vinod Kumar was the other applicant.  A previous defaulter cannot be granted fresh lease or another lease.  After the order of Commissioner dated 11.2.2006 petitioner contended before the District Magistrate that he was no more a defaulter hence lease should be granted to him.  The District Magistrate accepted the said contention and in pursuance of advertisement dated 30.10.2005 granted mining lease to the petitioner on 25.3.2006. In pursuance of advertisement dated 30.10.2005 formal lease deed was executed in favour of the petitioner on 1.4.2006 copy of which is Annexure-8 to the writ petition.  The lease was granted for Zone 16 khand no.101-A of river Yamuna situate in village Talilaganj Tehsil Manjhanpur District Kaushambi area 60 acres. The said grant was challenged before the State Government in revision by Vinod Kumar in the form of revision no.26/35 (R)  of 2006.  Respondent no.4 Dilip Kumar through  an order passed by this court in his writ petition had also been permitted to object to grant of lease to the petitioner through order dated 25.3.2006 before the Government.    Therefore, he also filed objection before the Government in the revision of Vinod Kumar.  The Government through Special Secretary decided the revision on 30.6.2006.  Through the said order it was held that lease was wrongly granted to the petitioner on 25.3.2006.  The Government held that petitioner was defaulter and at the time of submitting his application in pursuance of advertisement dated 30.10.2005 he had not filed no dues certificate.  The said order dated 30.06.2006 passed in revision has been challenged through this writ petition.  Revision was filed under Rule 78 of U.P. Minor Minerals (Concession) Rules, 1963.  Under the aforesaid Rules of 1963 it has been provided under Rule-9 that if two or more  persons apply on the same date then preference must be given on the basis of principles mentioned under sub rule (2).     Rule 9(2)(d) of the Rules of 1963 is quoted below:-

  "The conduct of the applicant in carrying out mining operations on the basis of any previous lease or permit and in complying with conditions of such lease or permit or the provisions of any law in connection therewith."

Earlier petitioner was granted mining lease for another zone(no.14/12) and he was found to be raising minerals unauthorisedly from the adjoining zone (no.14/11). This conduct of the petitioner was such that it dis-entitled him for grant of any mining lease in future.  If a person has once abused the terms of the lease then there is no guarantee that he will not do the same  thing again if he gets an opportunity for the same.  Illegal raising of minerals by a completely unconcerned person may easily be detected but if lessee of a particular portion illegally raises the mineral from the adjoining portion then it is not always easy to detect the illegal  action.  Accordingly, such lessees are liable to be dealt with more severely.  The finding of District Magistrate in his order dated 21.6.2004 that petitioner illegally raised minerals from the land which was not allotted to him but was adjacent to the land allotted to him has been confirmed in appeal by the Commissioner and has become final.  According to the learned counsel for the petitioner only the quantum of damages has not been finalised yet.  Even if this argument is accepted, petitioner is not entitled to grant of another mining lease as finding of illegal raising of mineral has become final against him.

Accordingly, there is no merit in the writ petition hence it is dismissed.  

Fresh advertisement for grant of lease with effect from 1.4.2007 shall at once be published by the District Magistrate, Allahabad.  Petitioner shall be permitted to operate the lease till 31.3.2007.   For the period from 1.4.2006 till 31.3.2007 if any amount payable under the lease deed has not yet been paid by the petitioner then the same shall at once be recovered.  Through order dated 7.11.2006 petitioner was directed to deposit Rs.75,000/- more.  Out of the said amount of Rs.75,000/- an amount of Rs.50,000/- shall be returned to the petitioner.  The remaining amount of Rs.25,000/- shall not be returned to the petitioner.





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