M/S Baburam Construction Thru. ... vs State Of U.P. Thru. Secy. Geology ...
2022 Latest Caselaw 4033 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 17
 
Case :- WRIT - C No. - 26076 of 2021
 
Petitioner :- M/S Baburam Construction Thru. Prop. Shrichand Chaudhary
 
Respondent :- State Of U.P. Thru. Secy. Geology Of Mining Lko.And Ors.
 
Counsel for Petitioner :- Uttam Kumar Pathak,Pragati Mehrotra
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Shree Prakash Singh,J.

1. Heard Sri Uttam Kumar Pathak, learned counsel for the petitioner, Sri S. K. Khare, learned Standing Counsel for the State and perused the record.

2. Instant writ petition has been filed assailing the order dated 8.10.2021 passed by the respondent no.1 and the orders dated 24.5.2021 and 1.6.2021 passed by the respondent no.2.

3. Learned counsel for the petitioner submits that in the month of May 2017, policy for minerals were framed by the State Government by 43rd amendment in U.P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as 'the Rules 1963'). He submits that after the aforesaid amendment, the State Government issued instructions to all the District Magistrates on 14.8.2017 to furnish information about the area of mining available in their concerned districts. On 4.4.2018 a notification was published by the District Magistrate under Rule 72 of the Rules 1963 for granting of mining lease for Gata No. 117 dha, 1306 situated in Village Gajrauliya Beltikar, Tehsil Naugarh, District Siddharthnagar. While publication of the notification, the total mining area reserve was 1,42,000 cubic meter. After the aforesaid notification published in the Newspaper, petitioner participated in e-tendering and being highest bidder of amount, i.e., Rs.622/- per cubic, the letter of intent dated 1.5.2018 for mining of 1,42,000 cubic meter was issued in favour of the petitioner for mining of the aforesaid.

4. Later on, cluster certificate was also issued by the Senior Mines Officer, Sidharthnagar on 4.5.2018 in accordance with E.I.A. notification dated 15.1.2016. Mining plan was approved on 14.5.2018 by the Senior Mines Officer on behalf of the Director, Geology & Mining, Khanij Bhawan, Lucknow for quantity of 1,42,000 cubic meter as per the notification and letter of intent. Thereafter, on 12.11.2018, environmental clearance was also issued in respect of the mining of Gata No. 117 dha 1306 Mi Village Gujarauliya, Beltikar, Tehsil Naugarh, District Sidharthnagar, but the mineable quantity was reduced upto 48,400 cubic meter whereas the notified quantity was 1,42,000 cubic meter.

5. After environmental clearance lease deed was executed on 7.12.2018 for mineable quantity of 48,400 cubic meter for a period of five years starting w.e.f. 7.12.2018 to 6.12.2023. He submits that on 30.9.2020, he moved an application before the District Magistrate, Siddharth Nagar that area of mining may be re-assessed as due to the rainy season, area of mining has been changed. He added to his argument that on his application, as per the Rules, a Committee is said to have constituted but to the best of his knowledge of the petitioner, the Committee did not submit its report.

6. After the aforesaid application, when no action was taken, as the Committee did not submit its report, the petitioner, under the compelling circumstances, approached the Director Environment and filed an application with regard to the aforesaid wherein the Deputy Director written a letter to the District Magistrate, Siddharth Nagar on 5.2.2021 and sought factual report from him. He added that prior to that on 27.10.2020, a demand notice was issued by the District Magistrate wherein month-wise due royalties, DMF and TCS was demanded from the petitioner. Being aggrieved with the demand notice dated 27.10.2020, the petitioner filed a revision before the revisional authority which was decided, vide order dated 19.3.2021. While deciding the aforesaid revision, the revisional authority has directed to the District Magistrate for issuance of notice to the petitioner and for cancellation of the lease immediately.

7. On the aforesaid order, the District Magistrate issued a notice on 12.4.2021 to the present petitioner and thereafter the petitioner submitted his reply dated 10.5.2021 on 15.5.2021. He submitted that the District Magistrate, without considering the aforesaid reply of the notice, has passed the order impugned wherein neither any of the objection of the petitioner was mentioned nor the same was decided by the District Magistrate.

8. He submits that since it was the direction of the revisional court for taking decision after issuance of the notice meaning thereby it was incumbent upon the District Magistrate to call upon the reply and after considering the reply the order has to be passed. In such view of the matter, the order dated 24.5.2021 passed by the District Magistrate assails illegality and infirmity and is liable to be quashed.

9. Learned counsel for the petitioner further added that the petitioner has raised the aforesaid plea that his objection was not considered by the District Magistrate in revision filed before the Revisional Authority but the Revisional Authority did not consider the aforesaid plea of the petitioner though passed the order for de-blacklisting of the petitioner and further security amount was also adjusted but so far as the royalty, DMS, TCS are concerned that kept on due on the petitioner and order for recovery was issued and, as such, on the strength of the aforesaid revisional order, the District Magistrate has passed the recovery order on 1.6.2021.

10. He submits that since the order passed by the District Magistrate dated 24.5.2021 itself is vitiated in the eyes of law, therefore, consequential order is void ab initio. He further submits that there is clear cut violation of principles of natural justice as the objection of the petitioner was not taken into consideration and the same was ignored and the heavy amount of recovery has been imposed upon the petitioner which is against the settled proposition of law.

11. In support of his submissions, learned counsel for the petitioner has placed reliance on Judgements/orders dated 11.1.2021 and 9.8.2021 passed by this Court in Writ-C No. 17258 of 2020, Vipul Tyagi Vs. State of U.P. and others and Writ Petition No. 17066 (MS) of 2021, M/s Vishnu Traders Vs. State of U.P. & others. Placing the aforesaid Judgment, he submits that it is well settled that the royalty for the period when the mining was not done cannot be charged from such lease holder in view of Section 15 (3) of the Uttar Pradesh Mines and Minerals (Regulation and Development) Act, 1957. Ignoring the aforesaid, the orders impugned were passed. In such view of the matter, he submits that the order dated 8.10.2021 passed by the revisional court and the orders dated 24.5.2021 and 1.6.2021 passed by the District Magistrate are liable to be quashed.

12. On the other hand, learned counsel for the State has very vehemently opposed the contention aforesaid and submits that in fact the mining area is settled after the environment clearance and the area, which is mineable, cannot be disputed on the ground that the reserve mining area was larger than the area mineable. He has drawn attention of the Court towards demand notice wherein it has been mentioned that the royalty has been sought since December 2018 though the same has been wrongly mentioned as 2019 and, as such, argument of the learned counsel for the petitioner that the mining is to be done from the date of execution of the lease deed, has very well been complied with. He further argued that in fact, after the 47th amendment, royalty was started to be taken month-wise.

13. He submits that there is no any example in the district where such concession for rainy season was ever granted.

14. On the query asked by the Court whether objection filed by the petitioner was considered by the District Magistrate while passing the impugned order, he fairly admitted that from perusal of the order of the District Magistrate, the same cannot be said to have been considered.

15. Considering the rival submissions of the counsel for the parties and after perusal of record, I find that the order passed by the District Magistrate is without considering the objection of the petitioner and huge liability has been imposed over the petitioner. In such view of the matter, the order dated 8.10.2021 passed by the respondent no.1 and the orders dated 24.5.2021 and 1.6.2021 passed by the respondent no.2 do not sustain in the eyes of law.

16. Accordingly, the order dated 8.10.2021 passed by the respondent no.1 and the orders dated 24.5.2021 and 1.6.2021 passed by the respondent no.2 are hereby quashed.

17. The matter is remanded back to the District Magistrate, Sidharthnagar to decide the matter afresh within a period of six weeks from the date certified copy of this order is produced before him after taking into account the objection dated 10/15.5.2020 submitted by the petitioner.

18. It is made clear that if such order is not produced before the District Magistrate within a period of fifteen by the petitioner, the benefit of this order will not be extended to the petitioner.

19. The Standing Counsel is also directed to communicate this order to the District Magistrate concerned within a week.

20. The writ petition is allowed accordingly.

Order Date :- 25.5.2022/Ram Murti