Ram Krishna Dwivedi vs State Of U.P. And 4 Others
2021 Latest Caselaw 8583 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 40
 

 
Case :- WRIT - C No. - 15643 of 2021
 

 
Petitioner :- Ram Krishna Dwivedi
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Shiv Sagar Singh
 
Counsel for Respondent :- C.S.C.
 

 

 
Hon'ble Manoj Misra,J.

Hon'ble Jayant Banerji,J.

Heard learned counsel for the petitioner and the learned Standing Counsel appearing for all the respondents.

This petition has been filed for a direction to the respondents to allow the petitioner to operate the mining lease in question for the obstructed period, that is, 19.05.2017 to 31.07.2019.

The case of the petitioner is that a lease was granted to him in respect of mining operations in granite mines over Plot No.2131, Khand No.1 extending over an area of 5.0 hectares situated at Village-Rauli Kalyanpur, Tehsil & Pargana-Karvi, District-Chitrakoot for a period of 10 years starting from 24.12.2011. The lease deed was duly executed. The petitioner obtained environmental clearance and was carrying out mining activities. However, due to an accident on 18.05.2017, which resulted in death of two labourers at the mining area, an FIR was lodged alleging that the accident had taken place due to blasting for mining of granite stones. By a notice dated 19.05.2017, the District Magistrate, Chitrakoot stayed the mining operations of the petitioner and asked him to show cause why the lease granted in his favour be not cancelled. It is stated that the petitioner submitted a reply to the show cause notice. The police submitted a final report on 30.12.2017 which was accepted by the Chief Judicial Magistrate, Chitrakoot by his order dated 02.08.2018. However, thereafter, the Director of Mines Safety, Government of India, imposed prohibition on the employment of persons in the mines. The site was inspected by the mining officials. Thereafter, pursuant to representations made by the petitioner and after vacation of the aforesaid prohibition order of the Director of Mines Safety, the District Magistrate, by an order dated 31.07.2019, permitted the petitioner to carrying out the mining operations in the leased area apart from the area in which the accident occurred. It is contended that by means of a notice dated 04.02.2020, dead rent amounting to ₹6.00 lakhs for the period from 24.12.2017 to 23.12.2018 has been demanded from the petitioner.

It is contended by the learned counsel for the petitioner that the petitioner is entitled to carry out mining operations for the obstructed period, since the obstruction had occurred due to no fault of the petitioner but only due to lodging of an FIR in which the police had submitted a final report which was duly accepted by the Magistrate concerned.

The learned Standing Counsel appearing for the respondents, on the other hand, has referred to a recent judgment of this Court dated 15.07.2021 passed in the case of Har Narayan Sharma & others v. State of U.P. & others1, by which a similar plea raised by the petitioners therein was rejected by this Court after relying upon a judgment of the Supreme Court in the case of Dharmendra Kumar Singh v. State of U.P. and others2.

Having considered the arguments of the learned counsel for the parties and on perusal of the record, we find that the plea of the petitioner seeking extended mining lease for the obstructed period cannot be acceded to.

In Dharmendra Kumar Singh (supra), after considering the gamut of case law on the subject including the cases of Vijay Kumar Dwivedi v. State of U.P. and others3 as well as the judgment dated 18.02.2020 passed by this Court in M/s Peethambra Granite (P) Ltd. Vs. State of U.P. and others4, the Supreme Court rejected the contention of the petitioner therein holding that the right to extension of lease either flows from a statutory provision or from the terms of the lease between the parties concerned. The Supreme Court observed as follows:-

"39. We are conscious of the fact that the G.O. dated 31.5.2012 also finds elucidation in certain other judicial pronouncements and that this aspect was clarified by the subsequent G.O. dated 26.2.2013 and then both the G.Os. were cancelled vide G.O. dated 22.10.2014, which would hold the field. In pursuance thereof, 35 mining leases are stated to have been issued but that itself would not make a difference because we have to see what are the subsequent developments and what course to adopt as on date. Even if we consider the interpretation sought to be put forth by learned Senior Counsel for the appellants of an expanded view of Rule 68, giving power to the State to extend the lease for the obstructed period, would it now be exercisable is the question.

40. The State of UP had issued a New Mining Policy on 12.6.2017 and this policy has no provision for grant of extension of time for obstructed period of mining lease and all mining leases were to be permitted by e- tendering or e-auction alone. If the mining lease is extended for the obstructed period, it would amount to violation of this New Mining Policy and since the extension would have to be granted now, we are unable to accept the contention of the learned Senior Counsel for the appellants that this should relate back to the date of the lease and not as on date.

41. We may also notice that the statutory rule, Rule 40(h) of the Mining Rules, extracted in para 16 itself, provides for the consequences of the disruption of mining operations in a lease area owing to any special circumstances and requires the DM, with the prior approval of the State Government, to adjust the amount equivalent to the installments payable during the disrupted period against forthcoming installments. Thus, monetary adjustment is all that has been provided for by the statute making the legislative intent obvious, i.e., that if some amounts have been paid as installments under the mining lease for the period when the beneficiary is not able to operate the mining area, only that amount is liable to be refunded. This is what forms the basis of the submission made on behalf of the State of UP that they are only liable to refund (i) any security deposit; or (ii) advance royalties paid to them, for this obstructed period - something to which the State of UP has already consented before us as recorded in our order dated 10.8.2020. The view taken by the High Court in Nar Narain Mishra case no doubt was in the context of the applicability of the G.O. dated 31.5.2012 and received the imprimatur of the Supreme Court in Sulekhan Singh case. But we have also to note that the observations dealt with the issue also on the submission advanced that ''imarti patthar or building stone' is not covered by the G.O. dated 31.5.2012 and that contention was not accepted. The word ''boulder' was held to be included in the heading of ''building stone' as well as when found in a mixed form in riverbeds and the prayer of the leaseholder was not accepted.

42. We are conscious of the fact, as already noticed, that the appellants have suffered in the second round and the plea advanced on their behalf that if there were interdicts posed by a competent court that should not put a party at a disadvantage. This rule is ordinarily to be accepted for placing a successful party in the same position, which they had been in, if the wrong complained against them would not have been done to them. However, this cannot be a blanket proposition and we have to consider the context in which the interdict was passed, i.e., to preserve the forest area. It is a different matter that some leases were ultimately found as within the restricted area and some outside (as is the case of the appellants). Even if we take the notification of the State of UP dated 31.7.2014 into account, and the authorisation of the DMs to extend the lease where no third party interest was created and the leases were prevented from operation for no fault attributable to the leaseholders, the subsequent transparent policy of 2017 would weigh in favour of not exercising the jurisdiction to extend the leases for the obstructed period.

43. We, thus, find that the appropriate course of action to be adopted in this case cannot be to extend the lease for the obstructed period but to direct that the security deposit, if not already refunded, should be refunded and the amount deposited by the appellants/leaseholders as advance royalties to the respondent/State be also paid back to them along with something more."

(emphasis by Court)

We have perused the lease-deed enclosed with the writ petition. The petitioner has not been able to point out any clause in the lease-deed executed in his favour stating the consequences emanating from the lease being obstructed.

This petition, therefore, cannot be sustained as far as the relief sought for in the petition is concerned. Accordingly, this petition is dismissed.

Dismissal of this petition shall be without prejudice to the right of the petitioner to claim for any other relief that may be available to him in law for the obstructed period.

Date :26.07.2021

SK