Uttarakhand High Court
Jafar Malik vs State Of Uttarakhand And Others on 28 March, 2022
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 2500 of 2020
Jafar Malik .....Petitioner
Versus
State of Uttarakhand and others .... Respondents
Present :
Mr. M.C.Kandpal, Senior Advocate, assisted by Mr. Tarun Mohan, Advocate, for the
petitioner.
Mr. Pradeep Hairiya, Standing Counsel, for the State of Uttarakhand.
Dated: 28th March, 2022
JUDGEMENT
Hon'ble Sharad Kumar Sharma, J.
As a consequence of invitation of bids for lifting of the
RBM, the petitioner participated in the open bidding process
as it was held on 14th June, 2019, and his bid was accepted
for lifting of 40000 quebec meters of silt for a total auction
amount of Rs.51,75,000/-.
2. The petitioner contends, that he had deposited
certain amount by way of security money on 19th June, 2019,
but on the measurement of the auction lots site, which was
conducted by the official of the respondents, the lots were
earmarked by the inspecting team, and thereafter, only the
petitioner was actually allowed later on to undertake the
mining activities under the auction, which was settled in his
favour on 19th June, 2019.
3. It is an admitted case of the petitioner, that due to
torrential rains in 2019, there had been certain obstructions
which were caused in the petitioner's activities of lifting of
RBM, as settled in June 2019, and he could not lift the silt to
quantity of 33912.25 quebec meters. Time and again, the
petitioner has contended that he approached before the
respondents seeking a permission to permit him to lift the
remaining RBM, by grant of an extension to the licence
already executed in his favour, when the same was not done,
he preferred a Writ Petition before this Court, being Writ
Petition No. 721 of 2020, for the following reliefs :-
"(i) Issue a writ, order or direction in the nature of
mandamus to respondent no.2 to grant permission to lift
remaining Silt/Earth measuring 33912.25 Quebec Miter
from Sukhi Nadi in furtherance to the auction
sanctioned order dated 25.06.2019 Annexure No.-4 to
the writ petition in view of recommendation of the
inspecting team dated 18.11.2019 Annexure No. 14 to
the writ petition.
(ii) That in alternate a writ order or direction in
the nature of mandamus directing the respondent to
return back the outstanding balance amount Rs.
4335000/- (Forty Three Lacks Thirty Five Thousand) to
the petitioner in case of not granting time for lifting the
remaining 33912.25 Quebec Miter Silt/Earth."
3. In fact, if relief No. 2 is taken into consideration,
it happens to be akin, to the relief No. 2 of the present Writ
Petition, where permission is being sought to lift the same
quantity of the silt deposit from Sukhi Nadi, on the basis of
the recommendations which were then made by inspecting
team on 18th November, 2019, but the Coordinate Bench of
this Court by a judgment dated 15th October, 2020, directed
the District Magistrate, to take a decision on the letter which
was issued by the Joint Magistrate on 11th November, 2019,
consequent to which, the impugned decision has been taken
and the extension of time for lifting of the RBM, as was
claimed to be granted to the petitioner under the terms of
contract was denied to be extended.
4. Consequently, the petitioner has prayed for
quashing of the order dated 7th November, 2020, and for the
remittance of the balance amount of Rs.43,35,000/-.
5. The Writ Petition was preferred on 22nd
December, 2020. The counter affidavit was called for and no
interim order was granted.
6. After the exchanged of pleadings, the Writ
Petition is being taken up today.
7. In fact, logically, climatically and geographically
too, a right of lifting of RBM from the river bed which is
granted to a contractor, is always based on the terms of the
licence or the contract which is executed in his favour in
relation to the identified lots, pertaining to the year 2019, but
now we are in 2022.
8. It goes without saying that the nature must have
taken its own course and the river must have been flowing
ever since the grant of licence to the petitioner in 2019, and
the deposit of silts must have undergone a consistent and
massive change due to the natural phenomena and the lot,
which was executed in favour of the petitioner in 2019, may
not be even in existence on the spot, which could be
permitted to be lifted, now in 2022.
9. There is another reason not to interfere, because
the petitioner had earlier approached the Writ Court almost
for similar relief, seeking permission to lift 33912.25 quebec
metres of RBM, under the licence which was granted to him
in 2019. But the Writ Petition was disposed of leaving it open
for the respondent No.2, to decide the claim of the petitioner
based on the recommendations made, the same has been
rejected by the impugned order of 7th November, 2020.
10. This Court is of the view that once the petitioner
has submitted to the decision taken by the Coordinate Bench
of this Court on 15th October, 2020, for getting his claim
decided by the District Magistrate, without making any
efforts before the Court to press for the reliefs which were
actually earlier prayed for by way of writ of mandamus,
either for lifting of the silt and for the payment of the balance
outstanding amount, it would be deemed that the said relief
stood denied and bar of Order 2 Rule 2 of the CPC will come
into play.
11. Be that as it may. This Court is of the view that
what right stood vested with the petitioner and upto what
extent, it could be extended to be exercised in the instant case
and the circumstances herein, would always depend upon the
factual appreciation of the situation prevailing at the place of
lot, which was assigned to the petitioner in 2019.
12. Hence, in view of the covenants of the licence
granted to the petitioner on 25th June, 2019, since the
controversy pertaining to the permission for lifting of the
remaining silt deposits, i.e. RBM or for the payment of the
amount of deposit made by the petitioner has claimed in
relief No. 3 of the Writ Petition, that would be falling within
the zone of consideration under Clause 12 of the licence
granted to the petitioner and the appropriate recourse which
would available to the petitioner would be to approach the
District Court of District Udham Singh Nagar, for the
redressal his grievance, which he would be bound by it,
because it was under the said terms of the same licence that
he had undertaken the mining activities partially.
13. In that view of the matter and for the aforesaid
reason, this Court is not inclined to exercise its inherent
jurisdiction under Article 226 of Constitution of India, where
it entails an appreciation of fact, with the changed natural
circumstances, which could be best addressed by him before
the competent Civil Court under Clause 12 of the licence
executed in the favour of the petitioner.
14. Consequently, the Writ Petition lacks merits and
the same is dismissed on the ground of availability of an
agreed remedy of approaching before the District Court
Udham Singh Nagar.
(Sharad Kumar Sharma, J.)
28.03.2022
Shiv
