Allahabad High Court
Kanhaiya Singh vs State Of U.P. And Ors. on 20 July, 2006
Equivalent citations: AIR2006ALL324, 2007(1)AWC195, AIR 2006 ALLAHABAD 324, 2006 (5) ALL LJ EE 665, (2006) 1 CGLJ 488, (2006) 45 ALLINDCAS 809 (CHH), (2006) 64 ALL LR 803, (2007) 1 ALL WC 195
Author: A.K. Yog
Bench: A.K. Yog, V.C. Misra
JUDGMENT A.K. Yog, J.
1. Kanhaiya Singh (petitioner) filed present writ petition, under Article 226, Constitution of India and prays for:
A. An order, direction or writ in the nature of Certiorari quashing the order dated 8-2-2006 (Annexure-4 to the writ petition) passed by the State Government and the order dated 18-2-2006 (Annexure-5 to the writ petition) passed by the District Magistrate, Sonbhadra.
B. An order, direction or writ in the nature of mandamus restraining the respondent No. 4 from carrying out any mining operations in respect of plot No. 518/Ga Area 60 Acres of village Korgi, District Sonbhadra in pursuance to the impugned orders dated 8-2-2006 and 18-2-2006 and to issue a further writ of mandamus directing the respondents to settle the contract in respect of plot No. 518/Ga situated in village Korgi, District Sonbhadra in accordance with the provisions of law in pursuance to the notice dated 29-12-2005 issued by the District Magistrate, Sonbhadra.
C. Such other and further order, direction or writ of suitable nature which this Hon'ble Court may deem fit and proper in the circumstances of the case.
D. An order awarding cost of this petition to the petitioner.
2. Brief facts of the case, required for adjudicating the issue raised in the present writ petition, are being recapitulated hereinafter.
3. A mining lease was granted in favour of one J. P. Yadav/respondent No. 4 on 10-2-2003 for a period of three years in respect of following area:
1. Plot No. 1 of village Khokha, Tehsil Duddhi, District Sonbhadra (Area 30 Acres).
2. Plot No. 1 of village Bodhadih, Tehsil Duddhi, District Sonbhadra (Area 30 Acres).
3. Plot No. 518 Ga of village Korgi, Tehsil Duddhi, District Sonbhadra (Area 60 Acres).
4. In order to carry on 'Minor-Mineral' mining operations, over the plots situate in village Khokha and Bodhadih (total area 60 acres) respondent No. 4 had to pass through 'Forest-Road'. Hence, he applied for 'permit' to the concerned Forest Authority which was granted vide order dated 15-3-2003 (Annexure-CA 1 to the counter-affidavit of respondent No. 4) which was valid upto 15-3-2004. This permit was cancelled and permission to use said Forest-Road was withdrawn on the complaint/report made by Forest Range Officer dated 1-2-2004 who had found that 'permit-condition' was violated by respondent No. 4/J.P. Yadav. The Forest Officer in his said report dated 1-2-2004 (addressed to Pra-bhagiya Vanadhikari, Renukoot, Van Prabhag) informed that 'permit-holder' had damaged 'Forest-Road' as well as trees on the side of the road by digging earth. Since 'forest-property' was damaged, Range Cases No. 4, 5, 22, 24 and 26 of 2003-04 were got registered against him and others. Said report is part of original record produced by the learned Standing Counsel (Shri Vishnu Pratap, Advocate) in pursuance to an earlier Court order in this respect. Taking cognizance of the said report Prabhagiya Vanadhikari in his letter (addressed to Van Kshetradhikari, Duddhi) dated 7-2-2004/Annexure RA-1 to the rejoinder affidavit (filed in reply to the counter-affidavit of respondent No. 4) informed that 'permission' granted in favour of respondent No. 4 to use forest-road (under order dated 15-3-2004, referred to above) has been cancelled. By means of the order dated 19-2-2004 (Annexure RA-2 to the aforesaid rejoinder affidavit) it was further mentioned that 'security-money' given by J. P. Yadav has been confiscated. It may be mentioned that aforesaid documents -- 'Annexures RA-1' and 'RA-2' are part of original record placed by the learned Standing Counsel before us. According to Photocopy of 'Question and Answer' (Annexure RA-3), J. P. Yadav and his party-men-Ram Das, Mukesh Yadav, Dina Yadav were convicted and fined under Section 5/26, Forest Act, vide judgment and order dated 4-12-2004. Nothing has been brought on record or otherwise to controvert that the order cancelling his 'permit' to use 'Forest-Road' or the order of 'conviction' under Forest Act was challenged in any competent Court of law.
5. It appears that on 29-12-2005 the concerned District Magistrate issued 'Notice' inviting applications for grant of 'mining lease' in respect of plot No. 518 Ga (area 60 acres) in village Korgi as well as other two plots No. 1 situate in Village Khokha and Bodhadih in District Sonbhadra. According to the petitioner, he filed an application in the prescribed form, with respect to Plot No. 518 Ga.
6. J. P. Yadav/respondent No. 4, on the other hand, filed application dated 12-1-2006, addressed to the concerned Secretary of U.P. Government at Lucknow (Annexure CA-4 to the counter-affidavit of respondent No. 4) praying for extension of period to carry on Mining operation over Plot No. 518 GA (area 60 acres) Village Korgi in lieu of the period during which he had failed to operate 'Mining operation' over plots situate in village Khokha and Bodhadih. The State Government referred the matter to the District Magistrate, Sonbhadra vide letter dated 25-1-2006 and the District Magistrate, in its turn, wrote another letter dated 28-1-2006 to the said Secretary (Annexure CA-5 to the counter-affidavit of respondent No. 4). The District Magistrate categorically observed that there is no provision for considering prayer for extension on a different place/site in case lessee was unable to operate lease over some other plots but still recommended that respondent No. 4 be given extension of lease over Plot No. 518 Ga, village Korgi (60 acres) for one year eleven months and twenty five days i.e. the period during which the respondent No. 4 allegedly failed to carry on mining operation over Plot No. 1 of village Korgi (30 acres) and Bodhadih (30 acres).
7. The District Magistrate, however, conveniently ignored and failed to mention the 'circumstances' and the 'reasons' for which J. P. Yadav/respondent No. 4 failed to carry on mining operation, i.e. cancellation of his permit to use 'forest-road' for his willful act of damaging 'forest-property' (as noted above).
8. According to J. P. Yadav/respondent No. 4 (para 9 of the counter-affidavit of respondent No. 4) he was denied 'permit' for subsequent period and unable to carry on mining operation because of order passed by Hon'ble Supreme Court in writ petition No. 202 of 1995 as mentioned in the letter of Forest Department dated 16-7-2004 (Annexure CA-2 to the counter-affidavit Of respondent No. 4). Said letter of Forest Department is with reference to same letter dated 29-6-2004 of J. P. Yadav/respondent No. 4. In spite of repeated enquiry by this Court, this letter dated 29-6-2004 (in reference to which aforesaid letter dated 16-7-2004 was written by the Forest Authority), has not been brought on record nor any request made by the respondent No. 4 to place the same for perusal of the Court. Moreover, no attempt has been made by respondent No. 4 or the learned Standing Counsel to place said judgment of Supreme Court in the said writ petition No. 202 of 1995, referred in letter dated 16-7-2004. Interestingly, respondent No. 4 has also not disclosed as to why said order was not challenged.
9. Be that as it may, respondent No. 4 acquiesced to this order. It is fully established on record that the 'permit' in favour of respondent No. 4 to use 'Forest-Road' was cancelled because of his violating 'terms and conditions' of the permit.
10. The Deputy Secretary, Government of U.P. by means of impugned order dated 8-2-2006/Annexure 4 to the writ petition extended permission in favour of respondent No. 4 to carry on mining operation for a period of one year eleven months and twenty five days over Plot No. 518 Ga in village Korgi in lieu of he having failed to carry on mining operation with respect to Plots situate in village Khokha and Bodhadih for non-availability of 'forest-road'. In pursuance of the said order, the District Magistrate, Sonbhadra issued consequential order for granting lease for aforesaid period vide impugned order dated 18-2-2006/Annexure 5 to the writ petition.
11. Before we advert to the arguments made at the Bar, it will be useful to refer to 'terms and conditions' of lease (Annexure 1 to the writ petition). Relevant Clauses 6, 10 and 11 of the same are reproduced hereunder.
(Vernacular matter omitted)
12. Clause 10 of the 'Lease Deed' contemplates 'lease' to be cancelled in case of breach/violation of 'terms and conditions' of the Deed. Clause 11 of the said Deed further shows that for any natural cause ('flood' or 'any other reason'), if lessee is unable to carry on mining operation, he shall not be liable for extension of time.
13. When 'road-permit' was cancelled for own wrongful act of the respondent No. 4, he cannot claim any extension for that period and that too over other plot.
14. Sri V. C. Misra, Senior Advocate appearing for respondent No. 4, conceded that there is no specific provision for 'extension of time' under relevant Rules, 1963 (referred to above).
15. Reliance, however, has been placed on Apex Court decision in the case of Beg Raj Singh v. State of U.P. . Facts of the case of Beg Raj Singh (supra) are entirely different and ratio decidendi laid down therein cannot be applied to the facts of the instant case. In the aforesaid case of Beg Raj Singh lease was granted for one year whereas it was liable to be granted for three years. Beg Raj challenged it before Court and Supreme Court observed--"...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..."
16. In the instant case, J. P. Yadav/respondent No. 4 had deliberately violated 'terms and conditions' of permit to use 'forest-road' and hence cannot complain of his inability to carry 'mining operation' over the plots at village Khokha and Bodhadih.
17. We may refer to the decision of Kamla Kant Pandey v. State of U.P. . In the said case Division Bench considered following question:
(i) Whether the disputed leased area lies within the Kaimur Wild Life Sanctuary ?
(ii) Whether permission should be granted to the petitioner to perform mining operation in the leased area under Section 29 of the Wild Life (Protection) Act, 1972 if it is found that the disputed leased area is situate within the sanctuary ?
(iii) Whether the petitioner is entitled to refund of the money deposited by him for obtaining the above lease if it is found that the leased area is situate within the sanctuary and that no permission should be accorded to him under Section 29 of the above Act ?
18. On the basis of the said decision, respondent No. 4, can at best, claim refund of his money in case Forest Department refused to grant permit vide order dated 16-7-2004. State Government/District Magistrate is under an obligation to carry on process of considering applications for grant of mining lease over Plot No. 518 (60 acres) at village Korgi in accordance with statutory provisions and that could not be side tracked by granting extension to the respondent No. 4.
19. Before we close the judgment, we may record that Sri W. H. Khan, Advocate appearing for respondent No. 4 requested that the security money deposited by respondent No. 4 in lieu of grant of extension or otherwise, may be refunded by the respondent authority. For this purpose, the respondent No. 4 may approach the concerned Authority and we have no doubt that his request shall be considered in accordance with law.
20. In view of the discussion made above, the impugned order dated 18-2-2006 (Annexure 5 to the writ petition) cannot be sustained and consequently set aside with direction to the respondent authority to complete the process of 'grant of lease' in accordance with Rules, 1963.
21. Writ petition stands allowed.
22. In the facts of the case, there shall be no order as to costs.