Heard Shri Uttam Kumar Pathak, learned counsel for the petitioner and the learned standing counsel for the State-respondents.
By means of the instant petition, the petitioner assails the impugned order dated 05.04.2019 passed by the respondent no.3 whereby the lease executed in favour of the petitioner has been cancelled and a sum of Rs.57,35,500/- along with interest @ 18% per annum is sought to be recovered from the petitioner. The aforesaid order was assailed by the petitioner in revision which has been partly allowed by means of the order dated 16.08.2019 whereby a minuscule relief was granted to the petitioner to the extent that the security of the petitioner deposited with the respondents be adjusted towards the fourth installment, which became due on 01.01.2019 and with the aforesaid modification the remaining part of the order dated 05.04.2019 remained untouched.
Learned counsel for the petitioner while assailing the two orders has submitted that the petitioner in pursuance of a notification dated 04.04.2018 participated in e-auction relating to mining lease for excavation of 2550 cubic meters of sand and submitted his bid at 450 per cubic meter in Village Anjani, Tehsil Avanla, District Bareilly.
The petitioner being the highest bidder was issued a letter of intent on 31.05.2018. In furtherance of the same, the petitioner deposited the security many as well as first installment of advance royalty as directed by the District Magistrate, Bareilly. The petitioner got the mining plan on 05.06.2018 and thereafter made an application for environment clearance which was issued on 21.06.2018 in respect of 1.275 hectares in Gata No.5 situate at Village Anjani A, Tehsil Avanla, District Bareilly for excavation of 2250 cubic meters of sand. This was followed by registered lease which was executed on 23.06.2018 and the petitioner was thereafter permitted to commence his mining operations w.e.f. 27.06.2018.
The further submission of the learned counsel for the petitioner is that he could barely continuous his mining operation for three days as w.e.f. 01.07.2018 as per the Government Order mining operations are not permitted during rainy season.
The petitioner moved a representation before the District Magistrate, Bareilly informing that the area under the mining lease is submerged due to flood water, the petitioner is unable to excavate. No action was taken and the petitioner followed the aforesaid letter with reminders. It is only on 15.11.2018, an enquiry was conducted by Tehsildar Avanla which found that the area under mining lease was submerged due to flood water and the petitioner was for the aforesaid reason to could not carry out its mining operations.
In November, 2018, the Sub-Divisional Magistrate directed the Mining Officer, Bareilly to submit a spot report in respect of the land in question and in compliance thereof on 24.12.2018, again spot report was submitted which indicated that 75% of the area was still submerged in flood water and about 25% of the area is dry.
In the aforesaid backdrop, the third installment of royalty amounting to Rs.28,68,750/- become due and a notice of demand was issued. The petitioner replied to the same indicating that the area covered by the mining lease was submerged with water and for the said reason, he was unable to deposit the same. It is alleged that the petitioner also submitted an application to surrender the mining lease for the aforesaid reason, however, the same remained pending and in the meantime the District Magistrate proceeded to recover the third installment by means of notice dated 08.02.2019.
Since the petitioner failed to deposit the third installment, consequently, the District Magistrate in exercise of powers contained under Rule 58 of the Rules of 1963, the mining lease of the petitioner was cancelled and after forfeiting a sum of Rs.28,68,750/- deposited as security, a sum of Rs.57,35,500/- was sought to be recovered along with interest @ 18% per annum as arrears of land revenue.
The petitioner being aggrieved preferred a revision before the opposite party No.1 which was registered as Revision No.78(R)BSM/2019. The revisional authority partly allowed the revision and by permitting the security deposited to be adjusted towards the fourth installment which become due on 01.01.2019 and the remaining part of the order passed by the District Magistrate was not disturbed. It is in the aforesaid backdrop that the petitioner has approached this Court and submits that where both the authorities had found that the mining lease area was submerged and the petitioner could not carry out the mining operations, thus, the demand for royalty was illegal. Since, the petitioner could merely carry out the mining operations for three days alone i.e. 27.06.2018 till 30.06.2018 and thereafter by virtue of the Government Order, the mining operations were stopped because of the rainy season, hence, the demand was illegal including the termination of the lease.
Learned standing counsel refuting the aforesaid submissions and relying upon the counter affidavit submits that admittedly the petitioner failed to deposit the third and fourth installments of advance royalty which became due on 01.10.2018 and 01.01.2019. Thus, in terms of the conditions of the lease as well as, as per the Rule 60 of the Rules of 1963, the lease has rightly been terminated and the petitioner is liable to pay the outstanding amount.
The petitioner has filed his rejoinder affidavit reiterating his stand as mentioned in the writ petition. However, he has further stated that the petitioner is ready to deposit all the outstanding sum along with interest within a week provided the cancellation order is set aside.
The aforesaid submission of the learned counsel was recorded by a Coordinate Bench of this Court in its order dated 12.01.2021 and the learned standing counsel was granted time to seek instructions.
Today, it has been informed by the learned standing counsel that insofar as the lease is concerned the same has been cancelled in accordance with rules and the powers vested with the District Magistrate in terms of Rule 58 of the Rules of 1963. It is also stated that it is true that the petitioner could not carry out mining operations on account of submergence of the mining lease area with flood water.
Considering the submissions as well as the material on record, this Court finds that primarily the submission as well as the statement made by the petitioner that he could only carry out the mining operations for three days i.e. from 27.06.2018 to 30.06.2018 and thereafter the mining operations could not commence firstly on account of the rainy season and thereafter as the area of mining lease was submerged in flood water. The said submission could not be disputed by the State. The State also could not dispute the fact that twice a fact finding authority had visited the area and have submitted a spot inspection report which clearly indicated that 75% of the mining lease area was submerged in flood water.
So far as 25% area which is said to be dry and as stated by the State upon which the petitioner could carry out its mining operations has been denied by the petitioner stating that the aforesaid 25% area was across the riverbed where to reach that the petitioner was required to cross the submerged area which was not possible. This factual matrix is also not disputed by the State. This fact has also been accepted by the revisional authority in the impugned order that because of the mining lease area being submerged, the petitioner could not carry out the mining operations yet it only modified the order passed by the District Magistrate by permitting the security deposited to be adjusted towards the fourth installment of the amount, thereafter, it maintained the order passed by the District Magistrate.
Considering the facts and circumstances as well as the willingness expressed by the petitioner that he is ready to pay the entire amount along with interest within ten days subject to reviving of his lease, as well as the fact that the mining lease of the petitioner was for a period of five years and is valid till 2023 as well as also protecting the interest of the State so that it realizes the revenue expeditiously.
In the aforesaid peculiar circumstances, this Court is of the view that the impugned orders deserve to be set aside. The petitioner is directed to deposit the total outstanding sum along with interest within ten days from today with the District Magistrate, Bareilly, who upon receipt of up to date amount shall issue necessary orders within a week thereafter permitting the petitioner to commence his mining operations for the remaining period of his lease thereafter.
With the aforesaid directions, the petition is allowed. The impugned orders are set aside subject to the aforesaid conditions. In the facts and circumstances, there shall be no order as to costs.
Order Date :- 27.1.2021 Rakesh/-