M/S Kilkieshwar Mining Company ... vs State Of Uttarakhand And Others
2014 Latest Caselaw 2189 Del

      IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL
        Writ Petition No. 2303 of 2013 (M/S)

M/s Kilkieshwar Mining Company
And another                                    .....Petitioners
                       Versus
State of Uttarakhand and others                .....Respondents
                                With
        Writ Petition No. 1894 of 2013 (M/S)

M/s Kilkieshwar Mining Company
And another                                    .....Petitioners
                       Versus
State of Uttarakhand and others                .....Respondents
Mr. B.P. Nautiyal, Senior Advocate assisted by Mr. Manokam Nautiyal and
Mr. Mohd. Matloob, Advocates for the petitioners.
Mr. Shailendra Singh Chauhan, Deputy Advocate General for the State /
respondents.

Hon'ble Alok Singh, J.

Both the writ petitions are interconnected and in both the writ petitions identical questions of fact and law are involved, therefore, both the writ petitions were heard together and are being disposed of by this common judgment.

Present petitions are filed assailing the orders dated 23.07.2013, whereby renewal of the lease deeds in favour of the petitioners by the Collector, District Tehri Garhwal on 14.06.2012 till 2020 was cancelled and petitioners were black listed for having done illegal mining activities as well as consequential order dated 11.10.2013 placing the name of the petitioners in the black list.

Brief undisputed facts of the present case, inter alia, are that petitioners were carrying on the business of mines and minerals in District Tehri Garhwal.

Petitioner No.1 was granted mining lease on 8th May, 1987 while petitioner No.2 was granted mining lease on 16th May, 1987 initially for the period of ten years. Both the leases were renewed for five years vide order dated 27th June, 1994. Lease in favour of petitioner No.1 was renewed for further period of ten years on 21.07.2000 while lease in favour of petitioner No.2 was renewed for further period of ten years on 01.08.2000. Meanwhile, vide order dated 25.01.2001, leases in favour of the petitioners were cancelled and petitioners were stopped in carrying on mining operation. Order dated 25.01.2001, was challenged before the Appellate Authority. Appellate Authority was pleased to dismiss the appeal filed by the petitioners. Thereafter, representations/revisions were filed, however, same were also dismissed. Feeling aggrieved, petitioners approached this Court by way of filing Writ Petition 76 of 2008 (M/S). Writ Petition No. 76 of 2008 (M/S) was allowed by the Coordinate Bench of this Court vide judgment dated 23rd October, 2008 quashing the impugned order of cancelling the leases and restoring the leases in favour of the petitioners for the remaining period of renewed mining lease with liberty to the State Government to take appropriate action against the petitioners, if petitioners were found violating the conditions of the mining lease after giving adequate opportunity of being heard to the petitioners.

Order dated 23rd October, 2008, was challenged by the State Government in the Special Appeal No. 39 of 2009 before the Division Bench of this Court. Division Bench of this Court, vide judgment dated 2nd April, 2010

was pleased to dismissed the Appeal so filed by the State Government thereby confirming the judgment of the Coordinate Bench of this Court. After the judgment passed by the Coordinate Bench of this Court dated 23rd October, 2008, as confirmed by the Division Bench of this Court, petitioner moved representation before the Collector for restoration of the lease for remaining period of ten years with the stipulation that petitioners should be allowed to work for the remaining period of lease since petitioners were not allowed to work after the order dated 25th January, 2001. Thereafter, in compliance of the judgment passed by the Coordinate Bench of this Court dated 23rd October, 2008, as confirmed by the Division Bench of this Court vide judgment dated 2nd April, 2010, learned Collector Tehri Garhwal, was pleased to restore the lease vide order dated 10th June, 2010. Learned Collector, Tehri Garhwal, having obtained legal opinion from the District Government Counsel, on the representation of the petitioners, was pleased to renew the leases to the petitioners vide order dated 14.06.2010 till 09.06.2020. Thereafter, State Government vide order dated 6th February, 2013, was pleased to cancel the order of the Collector dated 14.06.2010 renewing the lease till 09.06.2020 with the further direction to recover the damages from the petitioners for undertaking the illegal mining pursuant to the illegal renewal of the lease. Order dated 6th February, 2013, passed by the State Government was challenged by the petitioner in Writ Petition No. 359 of 2013 (M/S). Coordinate Bench of this Court vide order dated 22.03.2013, directed the

respondents to pass order afresh after giving opportunity of being heard to the petitioners with the condition, meanwhile, impugned order dated 6th February, 2013 shall be kept in abeyance.

After the order passed by the Coordinate Bench of this Court dated 22nd March, 2013, in WPMS No. 359 of 2013, again State Government, was pleased to pass order dated 23.07.2013 cancelling the order of Collector dated 14.06.2013 renewing the lease till 09.06.2012 and on the same day another order was passed by the State Government to black list the petitioners. Feeling aggrieved, petitioners have approached this Court by way of filing the present writ petitions.

Meanwhile, during the pendency of the present writ petitions, another order came to be passed on 11th October, 2013 placing the name of the petitioners in the black list.

I have heard Mr. B.P. Nautiyal, Senior Advocate assisted by Mr. Manokam Nautiyal and Mr. Mohd. Matloob, Advocates for the petitioners, Mr. Shailendra Singh Chauhan, Deputy Advocate General for the State / respondents and have carefully perused the record.

In view of the undisputed facts as narrated hereinbefore following questions arose for the adjudication:-

(i) As to whether learned Collector was within his jurisdiction to renew the leases from 10.06.2010 to 09.06.2020, in the peculiar facts and circumstances of the case that renewed leases for ten years on 21.07.2000 and 01.08.2000 were

cancelled on 25.01.2001 and this Court was pleased to quash cancellation order dated 25.01.2001 with direction to restore the lease for remaining period, hence petitioners could not carry out mining operation between 25.01.2001 to 10.06.2010 ?

(ii) As to whether black listing of the petitioners is justified ?

Hon'ble Apex Court in the case of Beg Raj Singh Vs. State of U.P. and others, (2003) 1 SCC 726 in paragraphs Nos. 6 and 7 has held as under:-

"6. Having heard the learned counsel for the petitioner, as also the learned counsel for the State and the private respondent, we are satisfied that the petition deserves to be allowed. The ordinary rule of litigation is that the rights of the parties stand crystallized on the date of commencement of litigation and right to relief should be decided by reference to the date on which the petitioner entered the portals of the Court. A petitioner, the though entitled to relief in law, may yet be denied relief in equity because of subsequent or intervening events, i.e. the events between the commencement of litigation and the date of decision. The relief to which the petitioner is held entitled may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law. There may be other circumstances which render it inequitable to grant the petitioner any relief over the respondents because of the balance tilting against the petitioner on weighing inequities pitted against equities on the date of judgment. Third party interests may have been created or allowing relief to the claimant may result in unjust enrichment on account of events happening in between. Else the relief may not be

denied solely on account of time lost in prosecuting proceedings in judicial or quasi- judicial forum and for no fault of the petitioner. A plaintiff or petitioner having been found entitled to a right to relief, the Court would as an ordinary rule try to place the successful party in the same position in which he would have been if the wrong complained against would not have been done to him. The present one is such a case. The delay in final decision cannot, in any manner, be attributed to the petitioner. No auction has taken place. No third party interest has been created. The sand mine has remained un-operated for the period for which the period of operation falls short of three years. The operation had to be stopped because of the order of the State Government intervening which order has been found unsustainable in accordance with stipulations contained in the mining lease consistently with the G.O. issued by the State of Uttar Pradesh. Merely because a little higher revenue can be earned by the State Government that cannot be a ground for not enforcing the obligation of the State Government which it has incurred in accordance with its own policy decision.

7. For the foregoing reasons, the petition is allowed with costs. The impugned order of the High Court, dismissing the petition filed by the petitioner, is set aside. Instead, it is directed that the petitioner shall be allowed to operate mine for a full period of three years subject to adjustment for the period for which he has already operated. The petitioner shall remain liable to pay royalty and make other payments to the State Government in accordance with the terms of the lease. The petition stands disposed of in the abovesaid terms."

As per the dictum of the Apex Court in the case of Beg Raj Singh (Supra), if mining lease is granted for a period of three years and meanwhile lessees not allowed to work for any unjustified or illegal reasons,

then at the time of setting aside the order of stopping the mining activities, Court must permit the lessee to carry out the mining activities for the full period of the lease subject to the adjustment for the period which he has already operated.

Let me now examine present case in the light of the dictum of the Apex Court in the case of Beg Raj Singh (Supra). Admittedly, lease in favour of the petitioner No.1 was renewed for a period of ten years vide order dated 21.07.2000 while lease in favour of the petitioner No.2 was renewed for further period of ten years vide order dated 01.08.2000, however, both the petitioners were not allowed to undertake mining activities w.e.f. 25.01.2001, when lease were cancelled till 10.06.2010, when lease were restored pursuant to the orders passed by the Coordinate Bench of this Court dated on 22nd March, 2013 duly confirmed by the Division Bench in Special Appeal on 2nd April, 2010. Therefore, petitioners were not allowed to work for nine years and 136 days for no fault of them, therefore, petitioners ought to have been allowed to work in view of the dictum of the Apex Court in the case of Beg Raj Singh (Supra) for further period of nine years and 136 days. Learned Collector, Tehri Garhwal, therefore, seems to be justified in renewing the lease for the further period.

In my considered opinion, instead of renewing the lease till 09.06.2020, learned Collector ought to have said that lease stood renewed w.e.f. 10.06.2010 for further period of nine years and 136 days. Question No.1 is answered accordingly.

Undisputedly, petitioners did not do any mining activities after 25.01.2001 till 10.06.2010. No document is produced or made available on the record to suggest that petitioners were undertaking any mining activities between 25.01.2001 to 10.06.2010. No show cause notice was ever issued to the petitioners for showing cause as to why they may not be black listed for such and such reasons.

Therefore, order to black list the petitioners seems to be outcome of non application of mind, totally arbitrary and unjustified. Q.No. 2 is also answered in favour of the petitioners.

Consequently, both the writ petitions are allowed. Impugned orders are hereby quashed. In view of the dictum of the Apex Court in the case of Beg Raj Singh (Supra), petitioners shall be allowed to undertake mining activities for full period of ten years excluding the period petitioners have already undertaken the mining activities prior to 25.01.2001.

In the peculiar facts and circumstances of the case, no order as to cost.

(Alok Singh, J.) Dated 1st May, 2014 Shiv