Hon'ble Ashwani Kumar Mishra, J.
(Delivered by Hon'ble Krishna Murari, J.) Heard Shri M.D. Singh Shekhar, learned Senior Counsel assisted by Shri Deo Prakash Singh for the petitioner, learned Standing Counsel for the State respondents and Shri K.R. Sirohi, learned Senior Counsel assisted by Shri Rahul Mishra for respondent no. 5.
The petitioner has approached this Court seeking the following reliefs.
"(i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 15.10.2013 passed by the respondent no. 1 and the consequential order dated 11.11.2013 passed by the respondent no. 3 as contained in Annexure no. 1 and 2 respectively to this writ petition.
(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 1 and 4 not to allow the respondent no. 5 to undertake any mining activity in pursuance to the orders dated 15.10.2013 and 11.11.2013.
(iii) Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 3 to notify the area in question a fresh as per the provisions of U.P. Minor Mineral (Concession) Rules, 1963.
(iv) Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in view of the facts and circumstances of the case.
(v) Award the cost of writ petition throughout in favour of the petitioner."
Factual matrix of the case leading to the filing of the writ petition claiming the above quoted reliefs are as under.
An advertisement dated 27.11.2002 was issued by the respondents fixing 28.12.2002 for auction of the mining lease under Chapter IV of the Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as Rules, 1963) for excavation of the minor minerals from river bed situate in various tehsils of district Bijnor. The period specified was three years. Opposite party no. 5, being the highest bidder, was granted mining lease vide order dated 27.01.2003 for a period of three years w.e.f. 03.02.2003. The lease was to come to an end on 02.02.2006. Just about a month prior to expiry of the period of lease, respondent no. 5 moved an application dated 02.01.2006 seeking extension of lease period by 231 days on the allegations that he was not allowed to undertake the mining operations for the said period and, thus, the same was liable to be extended. Respondent no. 3, District Magistrate, Bijnor vide order dated 06.01.2006 rejected the application. Respondent no. 5 went up in revision before the State Government, which was also rejected vide order dated 05.04.2006. The two orders were challenged by respondent no. 5 by filing Writ Petition No. 2481 (M/s) of 2006 before Lucknow Bench of this Court. Following reliefs were claimed by respondent no. 5 in the said writ petition.
"(1) issue a writ, order or direction in the nature of certiorari quashing the orders impugned dated 5.4.2006 passed by the opposite party no. 1 and order dated 4.1.2006 passed by the opposite party no. 2 as are contained in Annexure no. 1 and 2 to this writ petition.
(2) to issue a writ, order or suitable direction in the nature of mandamus commanding the opposite parties to allow the petitioner to operate mining for a further period of 231 days for the 14 river areas of Tehsil Nazibad and three river areas of Tehsil Nagina, Distt. Bijnor for which the lease was granted to the petitioner for a period of 3.2.2003 to 2.2.2006.
(3) to issue any other order or suitable direction which this Hon'ble Court may deem just and proper under the circumstances of the case.
(4) to award the cost of this petition in favour of the petitioners."
At the time of hearing of the writ petition, respondent no. 5 gave up his claim for extension of lease for a further period of 231 days and restricted the same only to the extent of refund of royalty for the said period of 231 days. Noticing the fact that respondent no. 5 has given up his claim for extension of lease and has confined it only to the extent of refund of royalty, the said writ petition filed by respondent no. 5 was disposed of by Lucknow Bench of this Court by making following observations.
"Dr. L.P. Mishra, learned counsel submits that the petitioner does not press the relief No. 1 and 2 as prayed by him in the instant writ petition, but he confined his relief only to the extent that his case for refund of the royalty for the period as stated above may be considered by the appropriate authority in accordance with law.
Sri Rakesh Srivastava, learned Standing Counsel does not dispute the fact that the mining lease has been granted to the petitioner but he submits that due to illegal mining the demarcation was done and for the said purpose, the petitioner was not allowed mining during the intervening period when the work of demarcation is carried out and thereafter he was allowed to do so. However, as agreed between the parties that the present writ petition may be disposed of only in respect to the relief as claimed by the petitioner for refund back of the royalty for the period which is stated hereinabove.
Sri Rakesh Srivastava, learned counsel for the opposite parties does not dispute the request made on behalf of the petitioner by Dr. L.P. Mishra as stated above.
I have heard counsel for the parties and perused the record, taking into consideration the fact that the petitioner does not want to press the relief Nos. 1 and 2 as claimed by him in the present writ petition and only wants that his case may be considered for refund of the royalty for the period during which he has not done the excavation.
For the foregoing period, the petitioner is directed to make fresh representation before District Magistrate, Bijnore/O.P. No. 2 annexing all relevant documents and materials in support of his case within a period of three weeks from today and taking the plea that he was restrained from mining during the period of lease for the reason which were beyond his control and after receiving the same, O.P. No. 2/District Magistrate/District Officer, Bijnor shall consider and dispose of the same with speaking orders within a period of eight weeks thereafter after providing opportunity of hearing to the petitioner.
With the above observations, the writ petition is finally disposed of."
It is worth taking note of the fact that during the pendency of the Writ Petition No. 2481 (M/S) of 2006 before Lucknow Bench of this Court, respondent no. 5 himself moved an application for disposal of the writ petition, wherein an affidavit was filed by his pairokar making the following averments in paragraphs 5, 6, 7 and 8.
"5. That during the pendency of the writ petition, the lease of which excavation was sought has been granted to others namely Sri Rajesh Agarwal, Sri Kamlesh Singh, Sri Jai Prakash, Sri Ram Kishore, Sri Harikesh Singh and Sri Pankaj Singh and they are excavating the mining which is mentioned in para 27 of the counter affidavit filed by the opposite parties.
6. That it is settled law of the Hon'ble Apex Court that the 3rd party rights have already been intervened and in their absence direction may be issued to the State Government to refund the royalty for the period he has not excavated the mining work which finds support by the judgment of Subhash Chandra Chaudhary and other Versus Ram Milan reported in AIR 1997 SCC 1286.
7. That there also various other judgments of this Hon'ble Court as well as the Hon'ble Apex Court in which it has been held that if the 3rd party rights have been intervened and the lease have been granted to the others, the petitioner is entilted for the refund of his royalty with 18% interest.
8. That in view of the aforesaid facts and circumstances stated hereinabove, the petitioner is entitled for refund of his royalty for the period during which he has not excavated the mining work and in the interest of justice, the writ petition deserves to be allowed by this Hon'ble Court."
It appears that in the meantime, since the right to excavate the minor mineral from the area, for which an extension of 231 days was being sought by respondent no. 5, came to be settled in favour of 3rd parties, respondent no. 5 gave up his relief seeking extension of the period for which he could not excavate and confined the relief for the refund of royalty for the said period. As already noticed above, the writ petition was disposed of by the Court giving liberty to respondent no. 5 to make a representation before the District Magistrate, Bijnor within a period of three weeks, taking the plea that he was restrained from mining for the reasons beyond his control with the direction to the District Magistrate/District Officer, Bijnor to consider and dispose of the same by means of a speaking order.
Surprisingly, after about three years of the disposal of the writ petition filed by respondent no. 5 and taking shelter behind the order of the Lucknow Bench of this Court, respondent no. 1, Special Secretary, Department of Geology and Mining passed an order dated 15.10.2013 directing the District Magistrate, Bijnor to extend the period of lease for the desired period after calculating the royalty and obtaining environment clearance certificate. In pursuance to the aforesaid order, the District Magistrate, Bijnor passed an order dated 11.11.2013 requiring the respondent no. 5 to produce the environmental clearance certificate in order to permit him to carry out excavation of the minor minerals for a further period of 231 days.
Aggrieved by the aforesaid two orders, the petitioner herein, claiming to be a prospective applicant with respect to grant of mining lease, in case, it was advertised, approached this Court by filing instant petition. A Division Bench of this Court noticing the aforesaid facts vide order dated 10th March, 2014 allowed two weeks' time to respondent no. 5 to file counter affidavit. A personal counter affidavit of the officer, who had passed the order dated 15.10.2013 was called for explaining as to under what circumstances, the order granting extension of lease period was passed, despite order of the High Court dated 01.09.2010.
Respondent no. 5 has filed his counter affidavit. One Shri Santosh Kumar Rai, Special Secretary, Department of Geology and Mining, U.P. has also filed counter affidavit. However, before proceeding to deal with the averments made in the counter affidavit, one more fact is worthy being noticed at this stage.
The two orders impugned in this petition were also subject matter of challenge in another Writ Petition No. 66984 of 2013 filed by one Manoj Karnwal. A Division Bench of this Court while noticing that respondent no. 5 was only given liberty to represent for refund of royalty for the period of 231 days and having given up the prayer for extension of period, the State Government was wholly unjustified in granting extension of period vide order dated 15th October, 2013, while calling for a counter affidavit, stayed the effect and operation of the order dated 15th October, 2013 as well as dated 11th November, 2013 passed by District Magistrate, Bijnor, on 09.12.2013.
Surprisingly, said Shri Manoj Karnwal withdrew the writ petition and the same was dismissed as withdrawn on 29.01.2014. Though the reason for withdrawing the writ petition have not been specified, but the same are writ large and anybody can read between the lines.
In the counter affidavit filed by respondent no. 5, it has been stated that since during the pendency of the writ petition, mining lease for certain temporary period as per Rule 51 was granted to different persons, he was legally advised that since 3rd party rights have been created, thus, he should press his prayer for refund of royalty. In view of the said legal advise given to him, he did not press relief nos. 1 and 2 made in the writ petition. It is further submitted that in pursuance to the liberty given to the petitioner, he made a representation before the District Magistrate on 04.10.2010.
Again, it is noteworthy that the copy of the representation has not been annexed with the counter affidavit.
Respondent no. 5 has further stated in the counter affidavit that the District Magistrate kept the application of the answering respondent pending and did not take any decision and in the meantime, he was again given a legal advise that grant of mining lease for temporary period, by no means, can be held to be creation of 3rd party right as the same is only for temporary period and, thus, the right of the respondent no. 5 to claim extension of 231 days very much existed. In view of the legal advise, respondent no. 5 again made representations, one dated 13.01.2012 and other one on 08.05.2013 before the District Magistrate requesting him to permit the extension for a further period of 231 days to compensate the loss suffered by him on account of the inability to excavate and carry out mining for the said period. It is further stated that on the said representation, the District Magistrate, Bijnor submitted a report before the Director, Department of Geology and Mines vide letter 23.09.2013 making a recommendation for extension of lease in favour of respondent no. 5 for a period of 231 days and based upon the said recommendation, respondent no. 1 passed the impugned order dated 15.10.2013 and in compliance thereof, a consequential order dated 11.11.2013 was passed by the District Magistrate, Bijnor.
A very interesting plea has been set up by respondent no. 1 in his counter affidavit. Apart from referring to and annexing the judgment of Madhya Pradesh High Court wherein the petitioner was allowed to operate the sand quarry for a full period of two years by extending the period which has no application in the facts of present case and Hon'ble Apex Court judgment in the case of Beg Raj Singh Vs. State of U.P. [2003 (1) SCC 726] that relief could not be denied solely on account of the time lost in prosecuting proceedings in judicial or quasi judicial forum and for no fault of the petitioner, which is again irrelevant in the facts of this case, it has been stated in paragraph 12 that this Court vide order dated 01.09.2010 had not put any restriction for not extending the period to the respondent no. 5 and respondent no. 5 was petitioner in the aforementioned writ petition and no order was passed against him.
It may be relevant to quote paragraph 12 of the counter affidavit of respondent no. 1, wherein the aforesaid averments have been made.
"12. That the contents of paragraph no. 17 and 18 of the writ petition are not admitted, as alleged. It is submitted that the Civil Misc. Writ Petition No. 2481 (M/S) of 2006 was filed by the respondent no. 5 before this Hon'ble Court at Lucknow; and this Hon'ble Court vide order dated 01.09.2010 directed the respondent no. 5 to make a fresh representation before the District Magistrate, Bijnore annexing all the relevant documents and material in support of his case within a period of three weeks from the date of the order, i.e., from 10.09.2010, taking the plea that he was restrained to conduct the mining operations during the subsistence of lease for the reasons which were beyond his control; and after receiving the representation, the District Magistrate/ District Officer, Bijnore shall consider and dispose of the same by speaking order within a period of 8 weeks thereafter, after providing an opportunity of hearing to the petitioner therein. This Hon'ble Court, vide order dated 01.09.2010 has not put any restriction for not extending the period to the respondent no. 5. The respondent no. 5 was petitioner in the aforementioned writ petition and no order was passed against him. In view of above, it is evident that the facts placed before this Hon'ble Court by the petitioner are twisted and misconceived, hence, denied, being incorrect."
Learned counsel for the petitioner contended that the extension of 231 days has been granted to respondent no. 5 without any authority of law in an illegal manner by respondent no. 1 without considering the fact that once the relief in respect of extension of the period of lease was given up by respondent no. 5 in the writ petition and this Court confined the consideration of his claim only in respect of refund of royalty, respondent no. 1 could not have extended the period. He further submitted that extension of lease granted under Chapter II of the Rules, 1963 is directly in the teeth of Division Bench judgment of this Court in the case of Nar Narain Mishra Vs. State of U.P. & Ors. reported in 2013 (2) ADJ 166.
Learned counsel appearing for respondent no. 5 has tried to justify the impugned order by submitting that this Court while disposing of the Writ Petition No. 2481 (M/S) of 2006 had not barred the answering respondent from requesting the relief of extension, but left it open to District Magistrate, Bijnor to pass fresh orders on the representation of the answering respondent. It is further submitted that since the respondent no. 5 was restrained from carrying out mining operations for 231 days for none of his fault and he had paid the royalty for the said period, as such, he was legally entitled for extension of the lease for the period he was restrained from carrying out mining operations.
This argument has been advanced on behalf of respondent no. 5 only to be rejected. Once he gave up his prayer before this Court for extension of the lease, the matter is not open for reconsideration by any authority.
Learned Standing Counsel representing respondent no. 1 has also tried to justify the impugned order by urging that on the recommendation made by Director, Geology and Mining, the State Government exercising its power has extended the period of lease of respondent no. 5. However, he has failed to point out a single justification as to when respondent no. 5 himself gave up the prayer before this Court seeking extension of lease and confined his relief only to refund of royalty for the period during which he was restrained from carrying out mining operations, under what circumstances, respondent no. 1, after about 7 years of the expiry of the lease, extended the period, that too, when State Government itself has taken a policy decision not to either grant or extend the mining lease under Chapter II of the Rules, 1963 and to grant of mining lease only under Chapter IV by means of E-auction.
In neither of the counter affidavit filed on behalf of the respondents, there is any explanation as to how and under what circumstances, the District Magistrate, who was under an obligation only to consider the representation of the petitioner for refund of the royalty within 8 weeks from the date of making of the same, after about three years made a recommendation to the Director, Department of Geology and Mining, who in turn, recommended the case of respondent no. 5, on the basis of which respondent no. 1 passed the impugned order.
This Court vide order dated 10.03.2014 passed in this petition required the respondent no. 1 to explain under what circumstances, the order granting extension of lease period was passed, despite the order of the High Court dated 01.09.2010. No explanation even worth the name is there in his counter affidavit. Not only that, we note with deep anguish the allegations which have been made in the counter affidavit, even questioning the authority of this Court to entertain the writ petition of the petitioner on the ground that there is no judicially enforceable right available for the enforcement to the petitioner on the basis of which the writ jurisdiction is resorted to.
The facts and circumstances under which the impugned orders have been passed not only speaks volumes about a nexus between the then District Magistrate, the then Director, Department of Geology and Mining, the then Special Secretary and respondent no. 5 in order to extend undue benefit to respondent no. 5.
We also express our deep concern over the understanding of a Senior Officer of the State Government of the rank of the Special Secretary of the order dated 01.09.2010 passed by Division Bench of this Court on Writ Petition No. 2481 (M/S) of 2006, which is crystal clear. The most surprising part is that respondent no. 1 passed the order for extension of the lease of respondent no. 5 taking shelter behind the said order.
Further, once the relief of extension was given up by respondent no. 5, for all purposes writ petition filed by him for the said relief, stands dismissed. It is beyond our comprehension how the District Magistrate made a recommendation and under which authority of law, respondent no. 1 passed the impugned order granting extension. Besides above, the impugned orders are also totally against the policy promulgated by the State Government vide Government Order dated 31.05.2012 providing that mining lease of vacant area of land shall be granted under Chapter IV by E-Tendering. Division Bench of this Court in the case of Nar Narain Mishra (supra) while considering the policy of the State Government has made following observations in respect of the applications for lease renewal as also for grant of fresh lease under Chapter II of the Rules, 1963 pending on 31.05.2012.
"From the discussions made above, it is clear that those petitioners who have claimed mandamus for directing consideration of their lease renewal application which were pending on 31.5.2012, cannot be granted any relief similarly applications for grant of fresh lease under chapter II of the Rules, 1963 which were pending on 31.5.2012 cannot also be directed to be considered. We have already held that the Government Order dated 31.5.2012, is a valid declaration within the meaning of Rule 23(1) of the Rules, 1963 declaring vacant area in the State for being settled under Chapter IV of the Rules, 1963."
Thus, viewed from any angle, either in the light of the judgment and order dated 01.09.2010 passed on Writ Petition No. 2481 (M/S) of 2006 as well as Government Order dated 31.05.2012 and the judgment and order passed in the case of Nar Narain Mishra (supra), lease of respondent no. 5 could not have been extended by the impugned order passed on 15.10.2013.
Thus, the impugned order dated 15.10.2013 passed by respondent no. 1 as well consequential order dated 11th November, 2013 passed by District Magistrate, Bijnore, being totally illegal and without jurisdiction, cannot be sustained and are hereby quashed.
The writ petition is hereby allowed with the cost to the petitioner, which is assessed as Rs.20,000/-. A sum of Rs.10,000/- shall be liable to be paid by respondent no. 5 and the balance Rs.10,000/- shall be paid by respondent no. 1. The costs shall be deposited by both the respondents with the Registrar General of this Court within three weeks from today. The State of U.P. is at liberty to recover the same from the salary of the Officer, whosoever was holding the post at the relevant time.
September 12th , 2014 VKS