Jai Shakti Realcon vs State Of U.P. And 3 Others
- Court
- Allahabad High Court
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - C No. - 3056 of 2020
AFR
Reserved on 02.12.2025
Delivered on 08.05.2026
Jai Shakti Realcon
…..Petitioner(s)
Versus
State of U.P. and 3 others
…..Respondent(s)
Counsel for Petitioner(s) : Adarsh Bhushan, Amit Upadhyay,
Mukesh Prasad(senior Adv.), Syed
Safdar Ali Kazmi
Counsel for Respondent(s) : C.S.C.
Along with :
WRIT - C No. - 18896 of 2019
Jai Shakti Realcon
…..Petitioner(s)
Versus
State of U.P. and 3 others
…..Respondent(s)
Counsel for Petitioner(s) : Adarsh Bhushan, Amit Upadhyay,
Shri Mukesh Prasad (Senior
Advocate)
Counsel for Respondent(s) : C.S.C.
HON'BLE SARAL SRIVASTAVA, J.
HON'BLE SUDHANSHU CHAUHAN, J.
(Delivered by Hon’ble Saral Srivastava,J.)
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WRIC No. - 3056 of 2020
1. Heard learned counsel for the petitioner and Sri Kartikey Saran,
learned Additional Advocate General assisted by Sri Rajeshwar Tripathi,
learned Chief Standing Counsel-II for the State-respondents.
2. In Writ-C No.18896 of 2019, the petitioner has assailed the show
cause notice dated 24.04.2019 and notice dated 21.05.2019 issued by
District Magistrate, District Fatehpur seeking recovery of
Rs.7,74,18,000/- of second and third installment towards royalty due on
01.01.2019 and 01.04.2019.
3. The petitioner in Writ-C No.3056 of 2020 has assailed the order
dated 01.01.2020 passed by the District Magistrate, Fatehpur by which
the mining lease of the petitioner has been determined and petitioner’s
firm has been blacklisted for two years.
4. For convenience, the facts have been delineated from Writ-C
No.3056 of 2020.
5. The facts, in brief, are that a lease deed was executed on
29.11.2018 and registered on 30.11.2018 for a period commencing from
29.11.2018 to 28.11.2023 for mining sand/moram with regard to the area
known as Khand No.K-4, Gata No.391 Mi, measuring 40.48 hectares
situated in Village Korrakanak, Tehsil and District Fatehpur at a price of
Rs.255/- per cubic meter. The petitioner before execution of lease deed
deposited Rs.3,87,09,000/- towards security and an equal amount as first
installment of royalty.
6. According to the petitioner, after commencement of mining
operation, the District President of Bhartiya Janta Party (BJP) filed a
complaint against the petitioner for illegal mining. The District
Magistrate taking cognizance of the said complaint, sent a team of
SDM, Fatehpur alongwith the team of Revenue Officers to inspect the
mining area of the petitioner.
7. The District Magistrate, thereafter, submitted a report on
31.12.2018 to the Principal Secretary, Geology and Mining, U.P., stating
therein that no illegal mining activity was found in the petitioner’s area.
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WRIC No. - 3056 of 2020
The State Government also constituted a team which conducted spot
inspection and found no illegal mining operation.
8. The petitioner states that he on 08.02.2019 submitted an
application before the District Magistrate, Fatehpur stating therein that
since most part of land allotted to the petitioner had submerged in the
water, and in the remaining area on excavation upto one meter, water
comes out due to which mining operation is arduous, therefore, the
quantity of mineral be reduced accordingly.
9. It is stated that pursuant to the application of petitioner, a survey
by Regional Office, Prayagraj on 06.03.2019 was conducted. As per
survey report, some area of the petitioner was across the river towards
boundary of District Banda.
10. The petitioner, thereafter, again on 11.03.2019 submitted an
application to the District Magistrate, Fatehpur on the basis of survey
report dated 11.03.2019 requesting him to get the mining area re-
surveyed and demarcated again. It is stated that the District Magistrate,
Fatehpur in pursuance to the petitioner’s letter dated 11.03.2019 sent a
letter dated 14.03.2019 to the District Magistrate, Banda to appoint a
team of competent authorities of district Banda for demarcation of the
area.
11. Thereafter, an inspection was conducted by the team of Naib
Tehsildar, Fatehpur, District Mines Officer, Fatehpur and Surveyor,
Regional Office, Prayagraj, Lekhpal Revenue Inspector etc. who
submitted a report dated 02.04.2019. However, the revenue team of
District Banda was not present on the spot at the time of inspection on
02.04.2019.
12. It transpires that the petitioner did not deposit the second and third
installment of royalty of first year amounting to Rs.7,74,18,000/- which
led the District Magistrate, Fatehpur to issue a notice dated 12.04.2019
asking the petitioner to deposit the second and third installment
otherwise the same shall be recovered as arrears of land revenue.
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WRIC No. - 3056 of 2020
13. In the meantime, the District Magistrate, Fatehpur wrote a letter
dated 20.04.2019 to the District Magistrate, Banda again requesting him
to constitute a team for demarcating the mining area allotted to the
petitioner.
14. The petitioner, thereafter, submitted his reply dated 25.04.2019 to
the notice dated 12.04.2019 stating therein that he had not been given the
entire mining area allotted to him and requested the District Magistrate,
Fatehpur to either return the amount deposited by him or to give
possession of the entire area allotted to him.
15. The petitioner was again issued a demand notice dated 24.04.2019
asking the petitioner to deposit second and third installment. The
petitioner, thereafter, challenged the notice dated 24.04.2019 in Writ-C
No.18896 of 2019.
16. The petitioner further stated that Director, Geology and Mining,
Lucknow vide order dated 25.04.2019 directed for demarcation and
resurvey of the mining areas known as K-3 and K-4. As per petitioner’s
case, it was found in the resurvey and demarcation of land done from
08.05.2019 to 10.05.2019 that some part of the area was on the other
side of the river.
17. Further it is the case of the petitioner that petitioner while
constructing the approach road near the border of District Banda for
transporting mineral from other side of the river was stopped from
carrying out mining by the S.D.M., Sadar, Banda on the orders of
Commissioner, Chitrakoot Dham, Banda which were passed on a
complaint of one Sri Rakesh Tiwari, Proprietor of M/s Radhika
Construction, Indira Nagar, Banda. The order of Commissioner,
Chitrakoot Dham Banda also states that unless a joint team of high level
officers inspects and demarcates the disputed area in village Jauharpur,
no mining work should be done.
18. The petitioner also states that if respondents were satisfied that the
petitioner had defaulted in paying the due installments, the District
Magistrate should have determined the mining lease under Rule 58 (1) of
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WRIC No. - 3056 of 2020
U.P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as
‘Rules, 1963’) expeditiously, but instead the District Magistrate,
Fatehpur issued another show cause notice dated 21.05.2019 to the
petitioner to explain why due installments mentioned in the notice dated
12.04.2019 and 24.04.2019 have not been paid.
19. In the said notice, the District Magistrate, Fatehpur also called
upon the petitioner to show cause as to why action for illegal mining be
not taken against him.
20. It transpires that the District Magistrate, Fatehpur again vide
notice/order dated 25.07.2019 directed the petitioner to pay
Rs.14,10,300/- as an amount of illegal mining and Rs.7,74,18,000/-
alongwith interest of second and third installment.
21. The petitioner in paragraph nos.32 and 33 of the writ petition has
given the details of mining done by him and royalty paid. The petitioner
was served upon another notice dated 09.12.2019 asking him to deposit
the due installments, and in the event of failure to make the deposit, the
proceeding for termination of lease deed shall be undertaken. Thereafter,
the District Magistrate passed an order dated 01.01.2020 determining the
lease of the petitioner and blacklisting the firm of petitioner for two
years.
22. A counter affidavit has been filed by the respondent-State denying
the averments made in the writ petition. It is stated that petitioner was
continuously doing mining work but was not depositing the due
installments despite repeated notices. Thus, the petitioner had
deliberately caused loss of revenue to the State by blocking the leased
mining area and has also caused obstruction in proper supply of
sand/moram to the general public.
23. It is further stated that one, Anand Shekhar Singh has challenged
the recovery certificate dated 13.10.2020 in Writ Petition No.10943 of
2021 which was dismissed by this Court by judgement and order dated
10.08.2021.
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WRIC No. - 3056 of 2020
24. The respondent also stated that the petitioner was doing mining
work and was satisfied by the demarcation report and had deposited
Rs.50 lacs on 17.10.2019, which had been adjusted in the fourth
installment due on 01.07.2019. It is further stated that after giving notice
to the petitioner, the order dated 03.01.2020 terminating the lease of the
petitioner has been passed in a just and fair manner.
25. It is also stated that the advertisement dated 17.02.2018 was
published in furtherance of the Government Order dated 14.08.2017
which provides that the candidate before participating in E-Tender-cum-
E-Auction should inspect the proposed mining area and be satisfied
about the quantity of available mineral and the way for transportation.
26. Further, the case of the respondents is that the mining area was
available to the petitioner and the petitioner did mining work up to
23.05.2019 and excavated 39329 cubic meters of moram. The
respondent also stated that petitioner in his application dated 19.04.2019
informed that mining work could not be done upon the leased area
whereas as per E-MM-11 Portal, the petitioner excavated 22448 cubic
meter sand/moram in the month of December, 2018, 11059 cubic meter
in the month of January, 2019, 3687 cubic meter in the month of
February, 2019, 936 cubic meter in the month of March, 2019, 170 cubic
meter in the month of April, 2019 and 1039 cubic meter in the month of
May, 2019.
27. The respondent stated that on 06.03.2019, on 02.04.2019 and
again on 13.05.2019, the petitioner was informed by the team of
Directorate regarding demarcation of his leased area, and he was
satisfied with the same. The survey report shows that the area of village
Kurra Kanak and boundaries of village Jauharpur were not overlapping
each other. The petitioner was found involved in doing illegal
mining/transportation of mineral due to which, the State suffered loss of
revenue to the tune of Rs.14,10,300/-, which was the cost of mineral
excavated by illegal mining.
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WRIC No. - 3056 of 2020
28. Since the petitioner did not deposit the due installments, therefore,
for non-payment of due installments, illegal mining and for violating the
conditions of lease and Rules, 1963, the lease of the petitioner was
determined under Rule 58 of Rules, 1963 and recovery certificate was
directed to be issued against the petitioner and petitioner was blacklisted
for two years vide order dated 03.01.2020 in a just, fair and legal
manner.
29. Rejoinder affidavit has been filed by the petitioner denying the
averments made in the counter affidavit. It is stated that filing of Writ
Petition No.10943 of 2021 by Anand Shekhar Singh has no effect on the
present petition challenging the order dated 03.01.2020 passed by the
respondent no.3.
30. Learned counsel for the petitioner has contended that Section
15(3) of the U.P. Mines and Minerals (Development and Regulation)
Act, 1957 (hereinafter referred to as ‘Act, 1957’) provides for payment
of royalty of the actual quantity of mineral, which has been excavated by
the lessee. He submits that condition no.1 of Part-II of the lease deed
also stipulates that the lessee is liable to pay royalty only for the quantity
of sand/moram removed by him.
31. It is submitted that the petitioner has given the details of quantity
excavated by him in paragraph no.32 of the writ petition and the amount
of royalty paid by him in respect to the said quantity in paragraph no.33
of the writ petition, and since the petitioner has already paid the royalty
of the mineral removed by him, therefore, the petitioner cannot be
saddled with any further liability to pay the royalty with respect to the
minerals not removed by him. Accordingly, it is submitted that the
impugned recovery is illegal and without jurisdiction.
32. It is also submitted that the averments contained in the writ
petition and materials enclosed in support thereof clearly establishes that
the mining operation on the area allotted to the petitioner was impossible
inasmuch as the river had changed it’s course due to which certain area
allotted to the petitioner fell in the area of adjoining village Jauharpur in
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WRIC No. - 3056 of 2020
District Banda, and obstructions were created by the authorities of
District Banda in carrying out the mining operation by the petitioner.
33. Accordingly, it is submitted that in view of the aforesaid fact, the
petitioner cannot be faulted for not carrying out any mining operation,
and thus, no recovery of royalty can be made from the petitioner by the
respondents for the mineral, which has not been excavated or removed
by him.
34. It is lastly urged that Rule 58 (1) of the Rules, 1963 confers power
upon the authority to determine the lease deed in case lessee does not
deposit the lease rent or any amount due. It is contended that if, for any
reason, petitioner did not deposit the installments on the due date, and
30 days notice given to the petitioner to pay due installments has elapsed
and the petitioner did not deposit the said installment, the respondents
should have immediately invoked power under Rule 58 of the Rules,
1963 and should have determined the lease deed of the petitioner instead
of protracting the proceeding to determine the lease resulting in
increasing the liability of petitioner manifold. In other words, it is urged
that Rule 58(1) of the Rules, 1963 does not give discretion to the District
Magistrate, Fatehpur not to cancel the lease if the due quarterly
installment is not paid .
35. Per contra, learned counsel for the respondents would contend that
so far as the first contention of learned counsel for the petitioner with
regard to Section 15(3) of the Act, 1957 is concerned, the said
controversy is covered by the judgement of this Court in the case of M/S
Sharad Enterprises Vs. State Of U.P. And 4 Others passed in Writ-C
No.14386 of 2019.
36. He submits that on the request of petitioner, the survey of the area
was done and survey report was prepared. He submits that it is evident
from the survey report dated 13.05.2019 that there was no overlapping of
the boundaries of village Kurra Kanak and village Jauharpur.
Accordingly, it is contended that the contention of learned counsel for
the petitioner that the petitioner was not given the entire area is incorrect.
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WRIC No. - 3056 of 2020
37. He further submits that the river changes its course during the
rainy season and not during winter season, therefore, the case set up by
the petitioner that due to the change of course of river, certain area of the
petitioner fell in District Banda is fallacious and has been set up only to
avoid the liability to pay the royalty.
38. He further submits that the order of the Commissioner, Banda
dated 14.05.2019 discloses that the Commissioner, Banda had directed
the District Magistrate, Banda to stop illegal mining activity in village
Jauharpur, and since the area allotted to the petitioner fell in village
Kurra Kanak, District Fatehpur, therefore, he was not affected by the
order dated 14.05.2019 passed by the Commissioner, Banda.
39. He further submits that it is evident from the letter of the petitioner
dated 20.05.2019, appearing on page 86 of the paper book that the
petitioner has not disputed the demarcation report dated 13.05.2019
appearing on page-76 of the paper book which categorically states that
there is no overlapping of boundary of village Kurra Kanak and village
Jauharpur, and some private persons are interfering in carrying out
mining activity. It is pointed out by learned Additional Advocate General
that the representation of the petitioner dated 20.05.2019 does not state
that some area of land allotted to the petitioner falls in District Banda,
therefore, the narration set up by the petitioner that he could not do any
mining activity for the reason that some area of petitioner fell in District
Banda is incorrect and false.
40. Lastly, he submits that the petitioner is liable to pay the
installments due till the lease of the petitioner is terminated in
accordance with law. Therefore, neither the recovery notices issued to
the petitioner are illegal nor the order determining the lease deed of the
petitioner is illegal. Accordingly, he submits that the contentions
advanced by the learned counsel for the petitioner are misconceived, and
the writ petition deserves to be dismissed.
41. We have considered the rival submission advanced by the learned
counsel for the parties and perused the record.
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WRIC No. - 3056 of 2020
42. The similar contention as raised by the learned counsel for the
petitioner based on Section 15(3) of the Act, 1957 in the present case
that petitioner is liable to pay royalty only to the actual quantity of
mineral excavated by him has been repelled by this Court in the case of
M/s Sharad Enterprises Vs. State of U.P. and Others passed in Writ-C
No.14386 of 2019. Paragraph nos.92 and 93 of the said judgement are
reproduced herein below:-
“92. If the interpretation of Section 15(3) put forth by the learned
counsel for the petitioner that the petitioner is liable to pay royalty for
the quantity of mineral consumed by the petitioner is accepted, that
would lead to absurdity since it could never be the intention of the
legislature, further such interpretation would render the other
provision of Rules, 1963 and the terms and condition of the lease deed
which is in Form MM6 as per Rule 29 of Rules, 1963 redundant.
93. The Division Bench of this Court in paragraph no.38 of the
judgement in the case Raj Pratap Yadav Vs. State of U.P. and Others
passed in Writ-C No.28087 of 2023 has held that Section 15(3) of the
MMDR Act cannot be interpreted in a manner so as to confer benefit
upon the lessees for not paying installments where mineral has not
been removed or consumed by him. Paragraph no.38 of the said
judgement is reproduced herein below:
“38. In the backdrop of the aforesaid discussion, in a case of
auction lease that is covered by Chapter IV of the Rules, 2021,
to say that while considering an application of surrender of
mining lease, ‘royalty’ would be payable only to the extent of the
mineral removed or consumed, would not be appropriate.
Doubtless, where there occurs violation of the terms and
conditions of the mining lease which is not promptly attended to
by the lessee, the authorities are required to take steps without
delay for termination of the lease in the interest of all
concerned. But where the mining lease deed executed in Form
MM-6 or in similar format under the Rules made under the
provisions of Section 15 (1) and (1-A) of the Act, 1957 provides
for the quantity of minor mineral to be excavated annually in
cubic meters, and the highest bid offered by the lessee, and the
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WRIC No. - 3056 of 2020
total amount of instalments payable in the first year and
subsequent years, which also form the consideration for the
contract, then the instalments would be payable under the terms
of the lease. Therefore, the provisions of Section 15 (3) of the
Act, 1957 cannot be read or interpreted in a manner to confer a
benefit on the lessee for not paying the installments where no
mineral has been removed or consumed by him. Thus, to this
extent, the judgment of this court in Vipul Tyagi when read in the
light of the judgment of the Supreme Court in D.K. Trivedi, the
provisions of the Act 1957, and of the Rules of the State
Government framed under the powers delegated by the Act
1957, would not operate as a binding precedent.”
43. So far as the argument of learned counsel for the petitioner that
material on record establishes that because of change in the course of
river, it was impossible to carry out any mining operation is concerned,
we find that the said contention also lacks merit. The reason for our
aforesaid view is delineated below.
44. According to petitioner’s case, after commencement of mining
operation, the District President of Bhartiya Janata Party (BJP) filed a
complaint of illegal mining against the petitioner. The District Magistrate
acting upon the said complaint sent a team of SDM, Fatehpur alongwith
the team of revenue officers to inspect the mining area of the petitioner.
Thereafter, they submitted a report to the Principal Secretary, Geology
and Mining, U.P. stating therein that no illegal mining activity was found
in the petitioner’s area.
45. The record further reflects that the petitioner was allowed to carry
on mining operation and no hindrance was created by the respondents.
46. It transpires from the record that for the reason best known to the
petitioner, he submitted an application dated 08.02.2019 before the
District Magistrate, Fatehpur stating that most part of the land allotted to
the petitioner has submerged in water, and on excavation upto one meter
on the available area for mining, water comes out due to which mining
12
WRIC No. - 3056 of 2020
operation is difficult. Accordingly, he prayed that quantity of mineral be
reduced accordingly.
47. On the application of petitioner, a survey by the Regional Office,
Prayagraj was conducted on 06.03.2019. As per Geo-Coordinates, Point-
C and Point-D is abutting the boundary of District Banda. The inspection
report of Regional Office, Prayagraj is reproduced herein below:-
" सर्वे क्षण आख्या
आज दि नाँक -06.03.2019 को मे० जय शक्त्ति ! रि#यलकॉन प्रा०लिल० के पक्ष में स्र्वेीकृत
खनन पट्टा क्षेत्र ग्राम-को#ा2कनक तहसील-स # जनप -फतेहपु# के बालू/मो#म खण्ड
सं०-के/4 के गाटा सं0-391 दिम० #कबा-40.48 हे० क्षेत्र का सीमाकंन काय2 प्रतितदिनतिA
श्री आशुतोष प्रताप सिंसह पुत्र श्री शिशर्वेप्रताप सिंसह की उपक्त्तिस्Hतित में दिकया गया जो पट्टादिर्वेलेख
के समय न ी का जलस्त# अतिAक होने के का#ण दिनांक -26.11.2018 को सीमाकंन के
समय दिबन् ु C एर्वें दिबन् ु D का भू-दिन शांक (Geo-Coordinates) Geo-Coordinates) ) नही दि खाया जा सका
Hा । दिर्वेन् ु C एर्वें दिबन् ु D का भू-दिन शांक (Geo-Coordinates) Geo-Coordinates) ) र्वेत2मान में न ी की
जलAा#ा के ूस#ी त#फ जनप बाँा की सीमा से लगा हुआ है , जो यमुना न ी की जलAा#ा
के उस पा# जनप बाँा की ओ# है। जिजसका भू -दिन शांक (Geo-Coordinates) Geo-Coordinates) ) इस
प्रका# हैं-
क्र० सं० अक्षांश ेशांत#
0 0
A 25 43.766’N 80 34.551’E
0 0
B 25 43.915’N 80 34.435’E
0 0
C 25 43.449’N 80 34.043’E
0 0
D 25 43.289’N 80 34.204’E
48. Again a joint inspection was conducted on 02.04.2019 by the team
consisting of several authorities, who submitted a report on 02.04.2019.
The Joint Inspection report dated 02.04.2019 is reproduced herein
below:-
“ संयुक्त जाँच आख्या
सेर्वेा में
जिजलातिAका#ी
फतेहपु#।
महो य ,
13
WRIC No. - 3056 of 2020
कृपया अर्वेगत क#ाना है दिक मेसस2 जयशदिक्त रि#यलकॉन प्राo लिलo प्रोo श्री
शिशर्वेप्रताप सिंसह चन् ेल के पक्ष में जनप र्वे तहसील फतेहपु# Hान - ललौली क्त्तिस्Hत
ग्राम-कु#ा2कनक के गाटा संo 391 दिम० (Geo-Coordinates) खण्ड स०-के/4) #कर्वेा 40.48 हेo में
स्र्वेीकृत बालू/मो#म का खनन प ट्टा क्षेत्र की संयुक्त जांच आज दि नांक 02.04.2019
को की गयी। जाँच के समय उक्त खनन प ट्टा का कुछ भाग यमुना न ी की जलAा#ा की
उस त#फ तहसील र्वे जनप -बां ा ग्राम -जौह#पु# की सीमा से लगा हुआ है। संयुक्त
सर्वे क्षण के समय मौके प# खान अतिAका#ी फतेहपु# मय सर्वेक्षक / मानतिचत्रका# के साH
#ाजस्र्वे टीम क्षेत्रीय लेखपाल , #ाजस्र्वे दिन#ीक्षक , नायब तहसील ा# फतेहपु# एर्वें Hाना
प्रभा#ी ललौली र्वे पट्टाAा#क / प्रतितदिनतिA की उपक्त्तिस्तशिH में तहसील र्वे जनप बांा की
#ाजस्र्वे टीम की अनुपक्त्तिस्तशिH में जनप फतेहपु# की सीमा का दिनAा2#ण क# गाटा सं o-
391 दिम० (Geo-Coordinates) खण्ड स० - के /4) #कर्वेा 40.48 हे o का सीमा बंAन क# पट्टाAा#क द्वा#ा
मौके का स्Hाई स्तम्भ लगर्वेा दि या गया है।
आंख्या आर्वेश्यक काय2र्वेाही हेतु सेर्वेा में सा # प्रेदिषत है। "
49. Again on the request of petitioner, a survey was conducted as per
the direction of Director of Geology and Mining, Lucknow dated
25.04.2019 by a team consisting of Surveyor, District Jhansi, Surveyor
Headquarter, Assistant Geo-Science Headquarter, Mining Officer Head
Quarter and Senior Mining Officer, District Mahoba. The process of
demarcation continued from 08.05.2019 to 10.05.2019. The Joint
Inspection team submitted a report on 13.05.2019. As per the report
dated 13.05.2019, there was no overlapping between the boundaries of
Village Kurra Kanak in which the petitioner’s area falls and Village
Jauharpur falling in the jurisdiction of District Banda. The Joint
Inspection report dated 13.05.2019 is reproduced herein below:-
" संयुक्त सीमांकन आख्या
भूतत्र्वे एर्वें खदिनकम2 दिन ेशालय के काया2लय आेश सं० 120/ एम-21
सीमाबन्Aन/2018, दि नाँक 25.04.2019 के अनुपालन में जनप फतेहपु# के ग्राम
कु#ा2 कनक में स्र्वेीकृत खनन प ट्टा क्षेत्रों एर्वें जनप बाँा के ग्राम जौह#पु# के बालू /मौ#म
खनन क्षेत्रो के सीमा दिर्वेर्वेा के दिनर्वेा#ण के सम्बन्A में दिनेशालय की गदिuत टीम द्वा#ा
दि नाँक 08.05.2019 से 10.05.2019 के मध्य संयुक्त सीमांकन दिकया गया। उक्त
सीमांकन के समय श्री न#ेन्द्र कुमा#, #ाजस्र्वे लेखपाल, ग्राम कु#ा2 कनक, फतेहपु#/श्री
कमलेश बाबू, लेखपाल, ग्राम जौह#पु#, जनप बाँा तHा जनप बाँा में तैनात खान
अतिAका#ी श्री शैलेन्द्र कुमा# सिंसह एर्वें जनप फतेहपु# में तैनात खान अतिAका#ी श्री
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WRIC No. - 3056 of 2020
सौ#भ गुप्ता मौके प# उपक्त्तिस्Hत Hे। प्रश्नगत प्रक#ण जनप फतेहपु# के ग्राम कु#ा2कनक के
खण्ड सं. 3 एर्वें 4 में स्र्वेीकृत खनन प ट्टों के जनप बाँा की सीमा दिर्वेर्वेा से सम्बक्त्तिन्Aत
है। आ ेशानुसा# जनप फतेहपु# के स्र्वेीकृत खनन प ट्टा क्षेत्रों का संयुक्त सीमांकन
जनप फतेहपु# एर्वें जनप बाँा के #ाजस्र्वे दिर्वेभाग द्वा#ा उपलब्A क#ाये गये खस#ा
मानतिचत्रों के आAा# प# दिकया गया, जिजसकी आख्या दिनम्नर्वेत् है :-
1. जनप 0 391 दिम०, खण्ड सं0-4 #कबा
फतेहपु# के ग्राम कु#ा2 कनक गाटा सं
40.48 हे० क्षेत्र मे० जयशदिक्त रि#यल कॉन प्रा०लिल० प्रो०/पाट2न#/दिन ेशक , श्री शिशर्वे
प्रताप सिंसह चन् 0. 20 ए, गौतमनग#, सह# कोतर्वेाली फतेहपु#
ेल पुत्र श्री कल्लू सिंसह दिन
एर्वें ग्राम कु#ा2कनक के गाटा सं0. 383 दिम0, 391 खण्ड सं0 3, #कबा 40.48 हे0 क्षेत्र
मे0 तिडलि~जयाना माइनिंनग का#पो#ेशन प्रा० लिल० दिन ेशक , श्री सुख ेर्वे सिंसह Aुम्मन सिंसह
पुत्र श्री सुच्चा सिंसह दिन0 233-दिर्वेशनूपु#ी एने स, इन् ौ# , म०प्र० के पक्ष में 5 र्वेष2 की
त है। प्रश्नगत ोनो खनन पट्टा क्षेत्रों का सीमांकन क्षेत्रीय
अर्वेतिA हेतु स्र्वेीकृत/दिनष्पादि
लेखपाल द्वा#ा बताये गये सं 376
भ2 दिबन्ु जो ग्राम कु#ा2कनक एहतमाली के गाटा सं०
के उ!#ी पूर्वे‚ एर्वें , को सं
तिक्षणी पूर्वे‚ के मेड़ों के दिमलन दिबन्ु है भ2 दिबन्ु मानक#
जनप
फतेहपु# के त#फ से सीमांकन काय2 दिकया गया। संयुक्त सीमांकन में यह पाया
गया दिक यमुना न ी की जलAा#ा को पा# क# जनप बाँा के ग्राम जौह#पु# की सीमा
तक खनन पट्टा क्षेत्र है। पट्टाAा#क को पट्टा क्षेत्र के सभी सीमांस्तम्भ तिचक्त्तिन्हत क# मौके
प# बता दि ये गये। उक्त सीमांकन की पुदि„ जनप बाँा के खस#ा मानतिचत्र से भी दिमलान
क# ली गयी है। मौके प# उपक्त्तिस्Hत खान अतिAका#ी, फतेहपु#, खान अतिAका#ी, बाँ ा ,
ा द्वा#ा भी सीमांकन में सहयोग दिकया
क्षेत्रीय लेखपाल, ग्राम कु#ा2कनक एर्वें जौह#पु#, बाँ
गया। सभी पक्ष सीमांकन से संतु„ है। जनप
फतेहपु# के ग्राम कु#ा2 कनक के खस#ा
मानतिचत्र से दिकये गये सीमांकन काय2 एर्वें जनप बाँा के खस#ा मानतिचत्र प# दिकये गये
सीमांकन काय2 संलग्न मानतिचत्र प# अंदिकत क# दि या गया है।
संयुक्त सीमांकन से यह
-4 में पूर्वे2 के सीमांकन में बताये गये
स्प„ होता है दिक ग्राम कु#ा2 कनक के खण्ड सं०
सीमादिबन्
ु मौके प# सही पाये गये। ग्राम कु#ा2 कनक की सीमा एर्वें ग्राम जौह#पु# की
सीमा में कोई ओर्वे#लैनिंपग नही है।
आख्या सा # सेर्वेा में अर्वेलोकनाH2 प्रेदिषत की जा #ही है। "
50. The report also states that the leaseholders have been told about
the boundary pillar of the leased area after marking the same.
51. Despite the fact that several surveys had been conducted on the
request of the petitioner, and the survey report indicates that there was
no overlapping of the boundaries of Village Kurra Kanak and Village
15
WRIC No. - 3056 of 2020
Jauharpur, and there is no reduction of mining area allotted to the
petitioner, the petitioner again wrote a letter to the District Magistrate,
Fatehpur stating that some part of the area allotted to the petitioner in
Village Kurra Kanak fell on the other side of the river and some persons
of Jauharpur Khand nos.3 & 4 who did not have any lease were
interfering with the mining operation of the petitioner as they were not
accepting three survey reports and had stopped the mining operation of
the petitioner. Accordingly, petitioner prayed that some assistance may
be provided so that petitioner could carry out mining operation
uninterruptedly.
52. The three surveys had been conducted on the request of the
petitioner. All three reports extracted above clearly falsify the claim of
the petitioner that he did not have the entire area of mining operation.
The submission of successive applications by the petitioner for the
survey of allotted area reflects the malafide intention of the petitioner to
set up a story to wriggle out of his liability to pay royalty under the lease
deed for the minerals auctioned to him.
53. For reasons stated above, we are of the view that the entire story
set up by the petitioner by filing several applications to demonstrate his
difficulty in carrying out mining operation was only a Peshbandi to
wriggle out of his liability to pay royalty.
54. We do not find from the record that the respondents at any time
obstructed or created hindrance in carrying out the mining operations by
the petitioner, therefore, we reject the contention of learned counsel for
the petitioner that mining operations could not be conducted by the
petitioner for the reasons beyond his control, therefore, petitioner is not
liable to pay royalty for the minerals, which have not been excavated by
him.
55. Now, coming to the last submission of learned counsel for the
petitioner that if the petitioner had not been able to pay royalty for
whatever reason, then the respondents were under obligation to invoke
16
WRIC No. - 3056 of 2020
powers under Rule 58 of Rules, 1963 expeditiously and determine the
lease deed of the petitioner.
56. To appreciate the said argument, it would be useful to have a
glance at Rule 58 of the Rules, 1963 which is being reproduced herein
below:-
“ 58. Consequences of non-payment of royalty, rent or other dues .-
(1) The State Government or any officer authorised by it in this
behalf may determine the mining lease after serving a notice on the
lessee to pay within thirty days of the receipt of the notice any
amount due or dead rent under the lease including the royalty due
to the State Government if it was not paid within fifteen days next
after the date of fixed for such payment. This right shall be in
addition to and without prejudice to the right of the State
Government to realise such dues from the lessee as arrears of land
revenue.
(2) Without prejudice to the provisions of these rules, simple interest
at the rate of 18 percent per annum may be charged on any rent,
royalty, demarcation fee and any other dues under these rules, due
to the State Government after the expiry of the period of the notice
under sub-rule (1).”
57. Part-3 of General Conditions of the lease deed also stipulates that
if there is any violation of Rules, 1963 or breach of terms and conditions
of the lease deed, the State Government can determine the lease. Part-3
of the General Condition of the lease deed is reproduced herein below:-
“ -3
भा ग
सा मान्य उपबन्ध
1. ,
नि यमा प्रसा विदाओं और शर्तों को भाग कोर पर प ट्टा सामाप्त किकोय जा
:: ( ) 1963
साकोर्तों है$ यकिदा प ट्टा दार उत्तर प्रदा श उप खनिजा परिरहै र नि यमाली) को
किकोसा) नि यमा य इसा पट्टा को+ किकोसा) प्रसाविदा र्तोंथा किकोसा) शर्तों- को भाग कोर.
र्तों रज्य सारकोर प ट्टा सामाप्त कोर साकोर्तों) है$ और प्रनिर्तोंभा0निर्तों जामा को प0र्ण-र्तों2
य अंशर्तों2 जाब्र्तों कोर साकोर्तों) है$ किकोन्र्तों5 प्रनिर्तोंबन्ध यहै है$ किको प ट्टा सामाप्त किकोय
17
WRIC No. - 3056 of 2020
जा को प0- पट्टा दार को उन्है. भाग कोर को स्पष्टी)कोरर्ण दा को निलीए
"
यथा नि9र्तों अंसार किदाय जाय ग।
58. Form MM-6 is Model Form of Auction Lease for Mining. As per
Rule 29, the lease deed is to be executed in Form MM-6 which is titled
as ‘Model Form of Auction for Mining’, therefore, the lease deed is a
statutory lease deed.
59. Rule 58 of Rules, 1963 and the lease deed executed in Form MM-
6 confers power upon the State Government to determine the lease deed
if, the conditions enumerated in Rule 58 or under relevant clause of lease
deed providing determination of lease deed exist. However, neither
Rules, 1963 nor lease deed permit the lessee to exit from the lease deed
if for any reason, the lessee is unable to carry out mining operation. To
this extent, Rules 1963 as well as lease deed are lopsided inasmuch as on
the one hand Rules, 1963 as well as lease deed permit the State
Government to determine the lease deed, but on the other hand, the
lessee has no recourse to exit from the lease deed.
60. In such circumstances, the lessee has no bargaining power to exit
from the lease even if he is not able to do mining and his liability to pay
royalty soars. The lessee has no option but to succumb to the terms and
conditions of the lease deed and has to wait till the authority invokes
power under Rule 58 of Rules, 1963 to determine the lease deed.
61. One of the party to the lease deed is the State. It is trite law that
the action of the State must be in conformity with the object enshrined in
Article 14 of the Constitution of India which means that the action of
the State must be free from malice, arbitrariness and discrimination.
62. In the present case, State under Rule 58 of Rules, 1963 as well as
under the lease deed has power to terminate the lease deed if the
conditions enumerated in Rule 58 or conditions set out in the relevant
clause under the lease deed on which lease can be terminated are present.
If the State does not act in the spirit of Rule 58 or clause of the lease
deed providing termination of lease deed, and because of inaction of the
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WRIC No. - 3056 of 2020
State, the liability of the lessee soars manifold, whether in such
circumstances the inaction of the State in invoking Rule 58(1) to
determine the lease falls within the ambit of arbitrary action of State is a
question which arise for determination in the instant case.
63. To appreciate as to when an action is said to be an arbitrary action,
it would be useful to have a glance at a few judgements of the Apex
Court defining when the action of the State is termed as arbitrary action.
The Apex Court in the case of Kumari Shrilekha Vidyarthi and Others
Vs. State of U.P. and Others, (1991) 1 SCC 212 has eloquently
explained as to what constitute arbitrariness. Paragraph nos.35 & 36 of
the said judgement are reproduced herein-below:-
“35. It is now too well settled that every State action, in order to
survive, must not be susceptible to the vice of arbitrariness which is
the crux of Article 14 of the Constitution and basic to the rule of
law, the system which governs us. Arbitrariness is the very negation
of the rule of law. Satisfaction of this basic test in every State action
is sine qua non to its validity and in this respect, the State cannot
claim comparison with a private individual even in the field of
contract. This distinction between the State and a private individual
in the field of contract has to be borne in the mind.
36. The meaning and true import of arbitrariness is more easily
visualized than precisely stated or defined. The question, whether
an impugned act is arbitrary or not, is ultimately to be answered on
the facts and in the circumstances of a given case. An obvious test
to apply is to see whether there is any discernible principle
emerging from the impugned act and if so, does it satisfy the test of
reasonableness. Where a mode is prescribed for doing an act and
there is no impediment in following that procedure, performance of
the act otherwise and in a manner which does not disclose any
discernible principle which is reasonable, may itself attract the vice
of arbitrariness. Every State action must be informed by reason and
it follows that an act uninformed by reason, is arbitrary. Rule of law
contemplates governance by laws and not by humour, whims or
caprices of the men to whom the governance is entrusted for the
19
WRIC No. - 3056 of 2020
time being. It is trite that ‘be you ever so high, the laws are above
you'. This is what men in power must remember, always.”
64. The Apex Court in paragraph 21 of the judgement in the case of
Verigamto Naveen Vs. Govt. of A.P. and Others, (2001) 8 SCC 344 has
held as under:
“21. On the question that the relief as sought for and granted by the
High Court arises purely in the contractual field and, therefore, the
High Court ought not to have exercised its power under Article 226
of the Constitution placed very heavy reliance on the decision of the
Andhra Pradesh High Court in Y.S.Raja Reddy v. A.P. Mining
Corpn. Ltd., 1988(2) ALT 722, and the decisions of this Court in
Harshankar v. Dy. Excise & Taxation Commissioner (1975) 1 SCC
3737, Radhakrishna Agarwal v. State of Bihar, (1977) 3 SCC 457,
Ram Lal & Sons v. State of Rajasthan (1976) 1 SCC 112, Shiv
Shankar Dal Mills v. State of Haryana (1980) 2 SCC 437, Ramana
Dayaram Shetty v. International Airport of India (1979) 3 SCC 489
and Basheshar Nath v. CIT AIR 1959 SC 149. Though there is one
set of cases rendered by this Court of the type arising in
Radhakrishna Agarwals case, much water has flown in the stream of
judicial review in contractual field. In cases where the decision-
making authority exceeded its statutory power or committed breach
of rules or principles of natural justice in exercise of such power or
its decision is perverse or passed an irrational order, this Court has
interceded even after the contract was entered into between the
parties and the Government and its agencies. We may advert to three
decisions of this Court in Dwarkadas Marfatia & Sons v. Board of
Trustees of the Port of Bombay, (1989) 3 SCC 293,Mahabir Auto
Stores v. Indian Oil Corpon. (1990) 3 SCC 752 and Shrilekha
Vidyarthi (Kumari) v. State of U.P. (1991)1 SC 212. Where the
breach of contract involves breach of statutory obligation when the
order complained of was made in exercise of statutory power by a
statutory authority, though cause of action arises out of or pertains
to contract, brings it within the sphere of public law because the
power exercised is apart from contract. The freedom of the
Government to enter into business with anybody it likes is subject to
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WRIC No. - 3056 of 2020
the condition of reasonableness and fair play as well as public
interest. After entering into a contract, in cancelling the contract
which is subject to terms of the statutory provisions, as in the present
case, it cannot be said that the matter falls purely in a contractual
field. Therefore, we do not think it would be appropriate to suggest
that the case on hand is a matter arising purely out of a contract
and, therefore, interference under Article 226 of the Constitution is
not called for. This contention also stands rejected.”
65. The Apex Court in the case of M.P. Power Management
Company Limited, Jabalpur Vs. SKY Power Southeast Solar India
Private Limited and Others (2023) 2 SCC 703 after referring to the
judgement of East Coast Railway Vs. Mahadev Appa Rao (2010) 7 SCC
678 in paragraph no.74 of the judgement has held in paragraph no.75
that if an action lacks good faith and is actuated with an oblique motive,
it could be characterized as being arbitrary. Paragraph nos.74 & 75 of the
said judgement are being reproduced herein below:-
“74. We may notice that as to what constitutes arbitrariness fell for
consideration by this Court in a case which involved cancellation of
the examination held as part of a recruitment process, in East Coast
Railway v. Mahadev Appa Roa (2010) 7 SCC 678. We notice the
following passages which are apposite for this case: (SCC pp.685-
87, paras 19-20 & 23)
“19. Black's Law Dictionary describes the term “arbitrary” in
the following words:
‘arbitrary. adj.-1. Depending on individual discretion; specif.,
determined by a Judge rather than by fixed rules, procedures, or
law.
2. (Of a judicial decision) founded on prejudice or preference
rather than on reason or fact. This type of decision is often
termed arbitrary and capricious.’
20. To the same effect is the meaning given to the expression
“arbitrary” by Corpus Juris Secundum which explains the term
in the following words:
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WRIC No. - 3056 of 2020
“Arbitrary.—Based alone upon one's will, and not upon any
course of reasoning and exercise of judgment; bound by no law;
capricious; exercised according to one's own will or caprice and
therefore conveying a notion of a tendency to abuse possession
of power; fixed or done capriciously or at pleasure, without
adequate determining principle, non-rational, or not done or
acting according to reason or judgment; not based upon
actuality but beyond a reasonable extent; not founded in the
nature of things; not governed by any fixed rules or standard;
also, in a somewhat different sense, absolute in power, despotic,
or tyrannical; harsh and unforbearing. When applied to acts,
“arbitrary” has been held to connote a disregard of evidence or
of the proper weight thereof; to express an idea opposed to
administrative, executive, judicial, or legislative discretion; and
to imply at least an element of bad faith, and has been compared
with “willful.”
23. Arbitrariness in the making of an order by an authority can
manifest itself in different forms. Non-application of mind by the
authority making the order is only one of them. Every order
passed by a public authority must disclose due and proper
application of mind by the person making the order. This may be
evident from the order itself or the record contemporaneously
maintained. Application of mind is best demonstrated by
disclosure of mind by the authority making the order. And
disclosure is best done by recording the reasons that led the
authority to pass the order in question. Absence of reasons
either in the order passed by the authority or in the record
contemporaneously maintained is clearly suggestive of the order
being arbitrary hence legally unsustainable.”
75. We would, therefore, sum up as to when an act is to be treated as
arbitrary. The Court must carefully attend to the facts and the
circumstances of the case. It should find out whether the impugned
decision is based on any principle. If not, it may unerringly point to
arbitrariness. If the act betrays caprice or the mere exhibition of the
whim of the authority it would sufficiently bear the insignia of
22
WRIC No. - 3056 of 2020
arbitrariness. In this regard supporting an order with a rationale
which in the circumstances is found to be reasonable will go a long
way to repel a challenge to State action. No doubt the reasons need
not in every case be part of the order as such. If there is absence of
good faith and the action is actuated with an oblique motive, it could
be characterised as being arbitrary. A total non-application of mind
without due regard to the rights of the parties and public interest
may be a clear indicator of arbitrary action. A wholly unreasonable
decision which is little different from a perverse decision under the
Wednesbury doctrine would qualify as an arbitrary decision under
Article 14. Ordinarily visiting a party with the consequences of its
breach under a contract may not be an arbitrary decision.”
66. From the aforesaid judgements defining what constitutes arbitrary
action, it can be culled out that an arbitrary exercise of power is the use
of authority based on personal whims, caprice or irrationality rather than
established laws, fairness or reason. In other words, the arbitrary power
refers to unjustified power by the authority without limits leading to
oppressive action against the individuals or groups.
67. Another facet of arbitrariness is that if a statute confers power
upon an authority with a purpose to achieve the object of the Act and
prescribes the manner and time frame within which such power is to be
exercised and there is no legal impediment in following the manner and
time frame prescribed in the statute for performance such act, then delay
in performance of such act without disclosing any bonafide and plausible
reason causing injury to an individual or groups may itself attract the
vice of arbitrariness.
68. Rule 58 of Rules, 1963 authorises the State Government or any
Officer authorised by it in this behalf to determine the mining lease after
serving a notice on the lessee to pay within thirty days of receipt of
notice any amount due under the lease including the royalty due to the
State Government, if it was not paid within fifteen days next after the
date fixed for such payment.
23
WRIC No. - 3056 of 2020
69. In our view, the power of determination of lease deed under Rule
58 of Rules, 1963 is to be exercised immediately without any delay after
the expiry of fifteen days period after the date fixed for such payment in
the notice for the benefit of both the State as well as lessee. As after
determination of lease deed, the State may re-auction as per procedure
contemplated under the Act, 1957 and Rules, 1963 the land allotted to
the petitioner so that it may not suffer any loss of revenue and at the
same time the liability of the lessee to pay royalty under the lease deed
may not soar manifold.
70. We may at the cost of repetition state that the lessee neither under
Rules, 1963 nor under the lease deed is allowed to determine the lease
deed, therefore, it is expected of the authority to act expeditiously in the
spirit of Rule 58 of Rules, 1963 for determining the lease if the
conditions enumerated under Rule 58 (1) of Rules, 1963 are present for
determining the lease deed. The inaction or delay on the part of the
authority in not invoking power under Rule 58 of Rules, 1963 despite
existence of conditions contemplated under such rule to invoke power of
determination of lease deed results in causing serious prejudice to the
lessee as on the one hand, he cannot exit from the lease deed, and on the
other hand, his liability continues to soar for no fault of his. Therefore,
delay in invoking power under Rule 58 of Rules, 1963 to determine lease
without informing or disclosing reason for delay in exercise of such
power entails element of arbitrariness on the part of authority.
71. Therefore, if there is delay in exercise of such power, the
authority must inform or disclose the reason for delay in invoking such
power so that it can be ascertained whether the delay in exercising such
power is bonafide or it is malicious. If it is found that the action of the
authority in not invoking power within the period prescribed in Rule 58
of Rules, 1963 is malicious, the delay in invoking such power to
determine the lease is nothing but an abuse of power and falls within the
ambit of arbitrary action as the delay in exercise of such power causes
significant injury to the lessee. Therefore, the action of the State in
24
WRIC No. - 3056 of 2020
determining the lease deed must conform to spirit of Rule 58 of Rules,
1963 and should not reflect malice.
72. Now, we turn to find out whether in the instant case, delayed
action of the State in determining the lease of petitioner amounts to an
arbitrary exercise of power by the authority.
73. The petitioner’s specific case in paragraph no.26 is that if the
authorities were satisfied that there was no reason for the petitioner for
not paying due installments, the District Magistrate should have
immediately determined the lease. Similar averment has been made by
the petitioner in paragraph no.41 of the writ petition. Paragrpah nos.26 &
41 of the writ petition are being reproduced herein below:-
“26. That instead of taking any action under rule 58(1) of the 1963
Rules, the respondents, if they were satisfied that there was no
reason for not paying the due installments, the District Magistrate
should have determined the mining lease, but surprisingly the
District Magistrate, issued another show-cause notice dated
21.05.2019 to show-cause as to why the due installments mentioned
in the notices dated 12.04.2019 and 24.04.2019 have not been paid
and in the said notice frivolous allegations of illegal mining, without
any notice or opportunity was also made. The said notice dated
21.05.2019 is also under challenge in the aforesaid Writ-C
No.18896 of 2019.
41. That rule 58(1) of the 1963 Rules, does not give discretion to the
District Magistrate, Fatehpur, not to cancel a lease if the due
quarterly installment is not paid. The lease should be cancelled after
30 days notice, but in the present case the respondents kept the
matter pending, without taking any decision either on the
applications of the petitioner, survey reports or on the notices issued
to the petitioner, with the sole purpose of illegally fastening the
liability of payment of installments of lease amount, even though
they had stopped all mining operations.”
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74. The respondent has replied the para no.26 & para 41 of the writ
petition in paragrpah nos.26 & 38 of the counter affidavit, which are
being reproduced herein below:-
“26. That the contents of Paragraph No.26 of the writ petition are not
admitted as stated hence denied. In reply it is submitted here that the
power to determine the lease is in addition to the power of recovery of
the due amount as per the arrears of land revenue and further the
petitioner was continuously doing mining work and the area of the
petitioner was demarcated on 06.03.2019 and 02.04.2019, 08.05.2019
to 10.05.2019 by the team of Directorate and the petitioner was
satisfied with the aforesaid demarcation reports and even after doing
the mining work, the petitioner was not depositing the due installments
and as such notice dated 21.05.2019 was given to him in accordance
with law.
38. That the contents of Paragraph No.41, 42 and 43 of the writ
petition are not admitted as stated hence denied. In reply it is
submitted here that the petitioner was continuously doing mining work
and was not depositing the installments and as such notices were
issued to him for depositing the aforesaid amount and the petitioner
had deposited a part of due installment to the tune of Rs.50,00,000/-
on 17.10.2019 and as such after giving final notice dated 10.12.2019,
the lease of the petitioner was determined and recovery citation was
directed to be issued and the petitioner was blacklisted for 2 years. At
the cost of repetition, it is submitted here that the power to determine
the lease is in addition to the power of recovery of the due amount as
arrears of land revenue.”
75. In the paragraph, extracted above, the respondent has not
disclosed the reason for the delay in invoking powers under Rule 58 of
Rules, 1963 and under the lease deed after the petitioner failed to comply
with the two notices dated 24.04.2019 and 21.05.2019.
76. The respondent in para no.38 has stated that the petitioner was
continuously doing mining work and was not depositing the
installments, but such an averment is only a general averment and does
not specify the period, the petitioner had done mining.
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77. The petitioner in paragraph no.32 has given details of mining from
December, 2018 to April, 2019.
78. In response to that, respondent in paragraph no.30 of the counter
affidavit has stated that petitioner has mined/transported 39239 cubic
meter of sand/moram from December, 2018 to May, 2019.
79. The respondent has not disclosed any detail about mining alleged
to have been carried out by the petitioner after May, 2019. As per record,
the petitioner had carried out mining till May, 2019. Under the notice
dated 21.05.2019, the respondent has demanded the installment due from
the petitioner on 01.01.2019 and on 01.04.2019.
80. As the petitioner had failed to deposit the two installments dated
01.01.2019 and 01.04.2019 and as per the respondents, petitoner had
conducted mining till May, 2019, we are of the view that respondents
should have immediately invoked the power under Rule 58 of Rules,
1963 to determine the lease.
81. The respondents do not disclose in the counter affidavit the reason
for not invoking powers under Rule 58 of the Rules, 1963 immediately
after expiry of period given in the notice calling upon the petitioner to
deposit installments dated 01.01.2019 and 01.04.2019.
82. Since, it is only the respondent-State who is authorised to
determine the lease deed under Rule 58 of Rules, 1963 and in the lease
deed, there is no exit-way given to the petitioner from the lease deed,
therefore, it is expected of the authority to exercise the power of
determination of lease diligently, and petitioner cannot asked to
discharge his obligations under the lease deed because of the slackness
on the part of respondents in determining the lease.
83. The respondents are under an obligation to explain the reason for
the delay in invoking power of determination of lease so as to find out
whether the delay in determining the lease is bonafide and genuine. Non-
disclosure of reason for delay in not determining the lease of the
petitioner would definitely be an arbitrary exercise of power and is
against the spirit of Rules, 1963. Therefore, the petitioner cannot be
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forced to pay installments demanded by the respondent, which he
otherwise would not have been liable to pay if, the respondent-authority
had acted promptly and invoked the power under Rule 58 of Rules, 1963
to determine the lease immediately after the petitioner failed to comply
with the demand made by the respondents under the notice dated
21.05.2019.
84. Thus, for the reasons given above, we are of the view that since
petitioner has not done any mining after May, 2019 and if, the power to
determine the lease had been invoked by the authority promptly, the
lease deed would have been determined before 01.07.2019, and
petitioner would not have been liable to pay any royalty after
01.07.2019, therefore, we hold that recovery of installments due from
the petitioner on 01.07.2019 and on 01.10.2019 is not justified.
Accordingly, we set aside the impugned order to the extent it demands
recovery of installments due on 01.07.2019 and on 01.10.2019.
85. The petitioner has deposited Rs.50 lacs on 15.10.2019 and Rs.20
lacs on 26.11.2019, total amounting to Rs.70 lacs for adjustment towards
arrears of earlier installments for which recovery had already been
issued. However, respondents have adjusted the said amount in the
installments of October, 2019.
86. Since, we have already held above that recovery of installments
due on 01.07.2019 and on 01.10.2019 is illegal, therefore, we are of the
view that aforesaid amount is liable to be adjusted towards the
installments payable on 01.01.2019 and on 01.04.2019.
87. By the impugned order, the lease deed has been determined by the
District Magistrate, Fatehpur. We are of the view that petitioner has
failed to make out any case for quashing the order determining the lease
deed inasmuch as the case of the petitioner challenging the recovery of
installments due on 01.07.2019 and on 01.10.2019 is based upon the
argument that if, the petitioner had failed to discharge his obligation to
deposit the installments, the authorities should have immediately
exercised the power terminating the lease deed under Rule 58 of Rules,
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1963, therefore, we do not find any good ground to set aside the finding
of the authority determining the lease deed.
88. By the impugned order, petitioner’s firm has also been blacklisted
for two years, and period of blacklisting has passed, therefore,
punishment of blacklisting of petitioner’s firm has lost it’s significance,
and in future, if petitioner is eligible to participate in auction proceedings
as per law, the blacklisting of two years by the impugned order should
not come in the way of petitioner in participating in future auction.
89. Thus, for the reasons given above, the Writ-C No.3056 of 2020 is
partly allowed and Writ-C No.18896 of 2019 is dismissed with no order
as to costs.
(Sudhanshu Chauhan,J.) (Saral Srivastava,J.)
May 8, 2026
Sattyarth/NS
Digitally signed by :-
SATTYARTH ANAND
High Court of Judicature at Allahabad