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Sevak Ram v. Sachiv Udyog Bhtatwa Evam Khanikarm & Ors. - WRIT - C No. 48319 of 2004  RD-AH 1613 (3 December 2004)
Civil Misc. Writ Petition No.48319 of 2004
Sevak Ram Vs. Sachiv, Udyog, Bhutatwa Evam Khanikarm, Uttar Pradesh Shasan, Lucknow and others
Hon'ble R.P. Misra, J
Hon'ble A.P. Sahi, J
(Per Hon. A.P. Sahi, J)
The petitioner, who is a lessee of a certain area of land, leased out to the petitioner under Minor Mineral (Concession) Rules, 1963, has impeached the order passed by the respondent no.1 - Secretary, Industries, Geology and Mining, Government of Uttar Pradesh dated 8.10.2004 whereby the representation, filed by the petitioner in respect of his grievances, has been disposed of with a direction to the petitioner to make a deposit of the amount adjudicated therein within one month and directions have been issued to the District magistrate to modify the lease of the petitioner, accordingly, and in the event the petitioner complies with the order, he may be permitted to resume the mining operations.
The facts as disclosed in the writ petition reveal that the auction notice was published on 10.12.2002 under Chapter-IV of the Minor Mineral (Concession) Rules, 1963 for auction of certain areas of the land in district of Mathura for being leased out through auction for excavation and mining of the sand. The auction took place on 10.1.2003/18.1.2003 in which the petitioner turned out to be the highest bidder whose bid pertaining to 13 points was to the tune of Rs. 49 Lac. It has been stated that the said bid was approved on 29.3.2003 and the petitioner was intimated of the same on 30.3.2003. The deposits as required under the auction notice are alleged to have been made by the petitioner. From a perusal of the impugned order, it appears that the petitioner was called upon to deposit the stamp duty for the purpose of executing the lease-deed and according to the respondents inspite of repeated intimations and reminders, the petitioner took objection to the quantum of stamp duty to be paid by him which caused delay in the execution of the lease-deed. The lease-deed was ultimately executed on 15.10.2003 for a period of 3 years in favour of the petitioner and the petitioner was issued form MM-11 on 17.10.2003. A finding has been recorded in the impugned order also to the effect that as per report of the Mines Officer, Regional Office, Agra dated 9.7.2003, and the report of the team consisting of the Assistant Geologist Shri Apporva Kumar and Mines Officer Shri Manoj Kumar Singh dated 21.7.2003, it was found that the petitioner had indulged in illegal mining even prior to the execution of the lease-deed on 15.10.2003 and even before Form-MM-11 had been issued to the petitioner which amounted to violating the provisions of the Minor Mineral (Concession) Rules 1963.
Thereafter the petitioner claims that he was not given possession of the entire area under the lease and without carrying out proper demarcation proceedings, the petitioner was being compelled to make deposit of the balance of the amount under the Agreement. The dispute raised by the petitioner with regard to demarcation appears to have been taken up by the respondents - authorities and a team constituted in the presence of Mines Officer, Regional Office, Agra conducted a survey and consequential demarcation on 26.12.2003 and 27.12.2003. This demarcation is said to have been conducted as is evident from the recital in the impugned order in the presence of the petitioner and the complainant of the adjoining area. It is also recited in the impugned order that both the parties were satisfied with the demarcation proceedings but the petitioner's representative did not ultimately sign the report submitted in this regard. It also appears from the recital of the impugned order that the petitioner had approached the Assistant Geologist, who by his letters dated 3.1.2004, 13.1.2004 and 14.1.2004 invited the parties for comments and ultimately vide letter dated 18.1.2004 again referred the matter to the Addl. District Magistrate (Administration), Mathura for appropriate decision. The Addl. District Magistrate, Mathura called upon the petitioner and another aggrieved person, as well as the Officers for resolving the said dispute and for the said purpose fixed 5.2.2004 as the date of the said meeting. It is also evident from a recital in the said order that on 5.2.2004 neither the petitioner nor the complainant came to attend the meeting whereupon a decision was taken by the officials unanimously to permit the petitioner and the complainant to carry out their mining operation in accordance with the demarcation already carried on 26/27.12.2003.
At this juncture it is relevant to point out that the petitioner has not challenged the said decision dated 5.2.2004 in the present case for reasons which has been urged by the learned counsel for the petitioner in his argument to be discussed later on. The petitioner has not filed a copy of the said order dated 5.2.2004 and from a perusal of the pleadings, it is evident that the said order does not find mention in the writ petition nor is there any pleading putting the said order to challenge in the entire writ petition.
Thereafter the petitioner was called upon by way of notice dated 21.4.2004 to make the deposit of the balance amount which notice was put to challenge by the petitioner by filing Civil Misc. Writ Petition No.20848 of 2004 in which this Court called upon the respondents to file their counter-affidavit. A notice was again issued to the petitioner subsequently on 20.5.2004 to the same effect but it appears that the petitioner did not make the deposit as a result whereof orders were issued on 11.6.2004 restraining the petitioner from continuing with his minding operations followed by a radiogram on the same effect on 29.6.2004. The said orders were challenged by the petitioner in Civil Misc. Writ Petition No.23531 of 2004, which was directed to come up along with the previous writ petition filed by the petitioner. The third writ petition was filed by the petitioner being Civil Misc. Writ Petition No.29035 of 2004 praying for a mandamus from this Hon'ble Court to the effect that the demarcation of the area under lease allotted to the petitioner be carried out and complete possession be handed over to the petitioner.
During this period, the renewed request of the petitioner for carrying out demarcation proceedings was considered and another report was submitted on 15.7.2004 by a team constituted by the Directorate of Geology and Mining, Lucknow which in detail inquired into the specific complaints regarding demarcation and illegal mining of the petitioner. The petitioner had also complained of non-availability of certain area of the land under lease, which was also inquired into and a report in detail was submitted on 15.7.2004. This report was brought on record along with a counter-affidavit.
All the aforesaid three writ petitions were heard together and were disposed of by a common judgment dated 10.8.2004 directing the competent authority to consider the grievance of the petitioner after giving him an opportunity of hearing and to calculate the outstanding amount due from the petitioner where after the petitioner undertook to deposit the same within the period directed by the authority. It was further directed that in case the petitioner fails to make deposit, the respondents shall be at liberty to make the recovery in accordance with law. The said judgment has been appended as Annexure-15 to the writ petition. The petitioner thereafter has filed a detailed representation which is dated 23.8.2004 wherein he has specifically raised objections to the report dated 15.7.2004, a copy of the said writ petition has been filed as Annexure-16 to the writ petition.
After the said representation was moved, it appears that the petitioner was again served with a notice to deposit the balance amount and, as such, the petitioner again filed Civil Misc. Writ Petition No. 39554 of 2004 assailing the aforesaid notice of demand which was disposed of on 24.9.2004 with a direction that no co-ercive measures shall be taken against the petitioner for making the recovery till the matter is decided after re-consideration as directed by the Court vide its order dated 10.8.2004. The petition was disposed of on 24.9.2004, which is contained in Annexure-18 to the instant writ petition. The petitioner was thereafter issued notice to which the petitioner took some objections and filed another application, indicating the amount, which the petitioner was not liable to pay. The competent authority thereafter heard the matter and has rendered the impugned decision dated 8.10.2004, which is now under challenge by the petitioner.
We have heard Shri V.B. Upadhyay, learned Senior Counsel, assisted by Shri P.K. Mishra for the petitioner and Shri S.P. Keserwani, learned Standing Counsel for the respondents at length.
The main thrust of the submissions of Shri V.B. Upadhyay on behalf of the petitioner is to the effect that the reports submitted by the authorities after 5.2.2004 and before 15.7.2004 as referred to in the impugned order have not been considered by the State government while passing the impugned order and secondly the specific objections taken by the petitioner in his representation have not been dealt with while deciding the matter with specific reference to para 31 to 33 of the representation of the petitioner dated 23.8.2004 appended as Annexure-16 to the writ petition. Shri Upadhyay has urged that notice be taken also of the averments made in para 25 to 27 of the writ petition wherein it is indicated that the proceedings of hearing were conducted in a unfair manner as the petitioner's counsel Shri A.P. Pandey was not permitted to meet the submissions advanced on behalf of the authorities who were present to oppose the case of the petitioner before the Secretary, who has passed the impugned order. It has further been urged that the documents that were necessary for meeting the objection of the other side were also withheld and as a result whereof the proceedings were in violation of principle of natural justice. It has further been urged on behalf of the petitioner that the demand raised in the impugned order is absolutely unjust, as the petitioner has not been allowed to excavate the area for which the lease was granted and in respect thereof attention was drawn to para 30 to 32 of the writ petition. The contention advanced is that there is a totally wrong calculation on the part of the respondents and proceedings to recover the amount and the charge of interest from the petitioner is also illegal. The facts and figures as incorporated in the impugned order have also been disputed by the petitioner and it is, therefore, urged that the order is vitiated. To support the aforesaid submissions, Shri Upadhyay has relied on the Full Bench decision of this Court in the case of Nanha and another Vs. Deputy Director of Consolidation, Kanpur and others, reported in 1975 AWC 1, and has submitted that since irrelevant consideration have been taken into consideration while passing the impugned order and relevant material has been ignored which prejudices the case of the petitioner, therefore, the impugned order is vitiated and liable to be set aside. He has also urged that the earlier demarcation proceedings of 26/27.12.2003 and the order dated 5.7.2004 have lost their efficacy due to subsequent reports and hence the authority has erred in relying on the same.
Replying to the submissions of the petitioner, the learned Standing Counsel Shri Keserwani has invited the attention of the Court in detail the findings recorded in the impugned order and has submitted that all relevant aspects have been considered and the findings arrived at cannot be interfered with as they are supported by cogent reasons. The learned Standing Counsel has further urged that the scope of the instant writ petition is limited inasmuch as this Court would only investigate to the extent as to whether the decision making process has proceeded fairly or not and that this Court would not sit an appeal over the findings of fact recorded by the authority in respect of the dispute in question. While advancing his submissions Shri Kesarwani has clearly pointed out that the decision has been taken way back on 5.2.2004 in respect of demarcation as claimed by the petitioner and, as such, the complaint with regard to the same stood redressed and the matter did not require any further submission of the reports. He has relied on the report dated 15.7.2004 and has urged that the authority has taken due care to consider the objection raised by the petitioner with regard to the report dated 15.7.2004. The learned Standing Counsel has taken us through operative part of the judgment dated 10.8.2004 to indicate that the petitioner had given undertaking to deposit the amount calculated as per the orders passed under the said judgment and, therefore, it is not open to the petitioner to further question the orders passed by the State Government. In view of this, it is urged that the respondent - State is now at liberty to recover the amount in accordance with law.
Having heard the learned counsel for the parties, it would be appropriate to deal with the findings recorded in the order impugned vis-à-vis the argument advanced in this regard on behalf of both the sides.
The first question which requires to be examined is with regard to the findings on the question of the claim of demarcation and the exercise undertaken in respect there of by the respondents coupled with the conclusion drawn by the authority in the impugned order in respect of the mining operations conducted and undertaken by the petitioner.
The finding recorded in the impugned order is that after the bid of the petitioner was accepted and before the lease-deed was executed, the petitioner had indulged in illegal mining. This fact has not been successfully challenged as is evident from the pleadings in the writ petition. It has further been recorded in the impugned order that the contention of the petitioner that he had not been handed over possession of the entire mining area is also not correct inasmuch as the fact that the mining operations have been conducted stands established from the form MM-11 utilized by the petitioner. It has been specifically recorded that form MM-11 has been utilized by the petitioner in respect of at least 10 areas out of 13 that are subject matter of the lease. The said finding is contained at internal page 11 of the order dated 8.10.2004. The petitioner has not been able to question the said finding nor the evidence in support of the said finding has been refuted by the petitioner. Thus, it is evident that the petitioner was in possession of 12 out of 13 areas allotted to him under the lease and he was found to have operated upon the said areas and hence it cannot be said that the petitioner did not have possession over the area for which mining lease had been granted.
The next contention on behalf of the petitioner with regard to demarcation proceedings having not been completed also cannot be accepted inasmuch as an order was passed on 5.2.2004 on the basis whereof the petitioner was given liberty to operate the mining area allotted to him under the mining lease. The said order dated 5.2.2004 is founded on the basis of an earlier survey and demarcation conducted on 26/27.12.2003. It is recorded in the order that the parties to the said demarcation proceedings were satisfied even though the representative of the petitioner did not put his signature to the ultimate report submitted in this regard. However, in order to ensure fair play the petitioner and other concerned parties were put to notice prior to the decision taken on 5.2.2004. In spite of having been put to notice, the petitioner did not choose to appear as a result whereof a decision was taken on 5.2.2004 treating the demarcation proceedings to be final. Shri Upadhyay has submitted that the aforesaid demarcation proceedings cannot be treated to be final as subsequent reports had been submitted and, therefore, the earlier survey and report dated 26/27.12.2003 and the decision taken in pursuance thereof on 5.2.2004 have become irrelevant. The said contention of Shri Upadhyay cannot be accepted inasmuch as the subsequent reports do not negate the earlier demarcation proceedings. Not only this, the report dated 15.7.2004 re-affirms the earlier demarcation proceedings and objectively assesses the complaint made by the petitioner. The report dated 15.7.2004 also records findings specifically in respect of every issue raised by the petitioner. Merely because subsequent reports had been obtained, the same cannot obliterate the effect of the earlier reports and the decisions taken thereon. The State government while passing the order cannot be said to have committed any error while taking into consideration the earlier reports. The reason for the same is that the State Government while taking a decision has to assess objectively the evidence available in this regard. The satisfaction to be recorded by the State Government is not subjective satisfaction. The decision of the State government has to proceed objectively and keeping in view the said principle, the State Government was fully justified in considering the previous reports and the decision dated 5.2.2004 as well as the report dated 15.7.2004.
The next contention on behalf of the learned counsel for the petitioner to the effect that the objections of the petitioner against the report dated 15.7.2004 have not been considered objectively is equally devoid of any merit. A perusal of the impugned order would indicate that the objection of the petitioner has been taken notice of. While considering the objection of the petitioner against the report dated 15.7.2004, the impugned order has extracted the report dated 15.7.2004. At internal pages 4, 5 & 6 of the impugned order the objection in essence of the petitioner which were taken before the respondent - State Government were with regard to the same subject matter which was on the merits of the case. The findings in this regard have been recorded at internal pages 11 to 13 of the impugned order. Every aspect of the complaint of the petitioner has been objectively looked into by the State Government in detail. For example, it has been stated that no separate exercise had been undertaken for giving possession of part of the area allotted to the petitioner as was being claimed by him. The petitioner had claimed and which is also stated in the present writ petition that he had been given possession only 5 areas out of 13, which have been allotted, to him. The finding has been recorded that there was no exercise undertaken for giving possession for only 5 areas out of 13. The petitioner was claiming demarcation time and again which exercise was undertaken and the area was demarcated. What is most notable is that a clear finding has been recorded that the petitioner has operated the entire mining area under lease except one area, which has been excluded in the impugned order. Thus, in essence the grievance of the petitioner has been looked into and objectively dealt with. In view of this, it cannot be said that the objections of the petitioner to the report dated 15.7.2004 have not been adhered to.
It is further to be noted that the Apex Court in the decision of Zora Singh Vs. J. M. Tandon and others, reported in 1971 SC 1537 has held as follows:-
"10. Counsel for the appellant raised the very same contentions before us which were raised before the High Court. As regards the first contention the judgment of the Division Bench clearly holds that in its earlier judgment the High Court did not conclude the question of genuineness of the said two copies and that it remanded the case to the Commissioner only because the Commissioner, while considering the appellant's case, had not called for the record of the Deputy Secretary (Re-habilitation) containing the copies which, according to the appellant, were copies endorsed to him by the Deputy Commissioner, Lyallpur. This is quite clear from the extract from its earlier judgment quoted earlier. There is, therefore, no substance in the first contention. The second contention also was rejected, and in our view rightly. The High Court was right in holding that even if there were amongst the reasons given by the Commissioner, some which were extraneous, if the rest were relevant and could be considered sufficient, the Commissioner's conclusions would not be vitiated. The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applied to cases in which the conclusion is arrived at not on assessment of objective facts or evidence, but on subjective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfaction if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a superior Court to find out which of the reasons, relevant or irrelevant, valid or invalid, had brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a superior Court would not interfere if the finding can be sustained on the rest of the evidence. The reason is that in a writ petition for certiorari the superior Court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter into the question of sufficiency of evidence. There was, in our view, legal evidence before the Commissioner upon which he was entitled to rest his finding that the copies relied on by the appellant were not genuine."
Applying the aforesaid principles, the contention on behalf of the petitioner that irrelevant considerations have been taken into account deserves to be rejected. There is no extraneous material having been taken into account which may vitiate the impugned order. We are not inclined to accept the submission on behalf of the petitioner that the earlier reports and the decisions stood washed out and were irrelevant for deciding the controversy. This Court while remanding the matter on 10.8.2004 had not confined the inquiry to be undertaken by the respondent - State Government only to the subsequent reports as suggested by the petitioner.
The last submission made on behalf of the petitioner is that since they were restrained from operating the mines in June 2004, therefore, the respondents are not justified in proceeding to realize any amount from the petitioner, the default whereof is complained of after June 2004. In this regard the respondent - authority has taken into account an over all consideration of the mining operations conducted by the petitioner and has held that the petitioner would be entitled to reduction of such amount in respect of such area over which the petitioner was unable to carry out mining operations. So far as the question of realizing any amount after June 2004 is concerned, the respondents cannot be put at fault inasmuch as it is the petitioner who has been found to have not acted in accordance with the terms of the lease-deed. There does not appear to be any mistake on the part of the respondent in making the calculations and the appropriate reduction to which the petitioner was entitled has been made upon which this Court cannot sit in appeal. There is no material by which this Court can arrive at a different conclusion.
In view of the conclusions recorded herein above, we do not find any merit in the writ petition and it is, accordingly, dismissed.
Dt. Dec. 2004
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