Full Judgment Text
2023INSC763
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.5171-5172 OF 2023
(Arising out of Special Leave Petition (Civil) Nos.17891-17892 of 2023)
State of U.P & Others … Appellants
Versus
Vinay Kumar Singh … Respondent
J U D G M E N T
MANOJ MISRA, J.
1. The State of Uttar Pradesh (in short “the State
of U.P.) is in appeal against the orders of the High
Court of Judicature at Allahabad (in short, “the High
Court”) dated 30.09.2022 and 12.05.2023 passed in
Writ C No.37749 of 2019 and Civil Misc. Review
Application No.525 of 2022 respectively.
FACTS
2. The respondent (original petitioner) was
granted a mining lease to excavate five lakhs cubic
meter of sand. The lease was for a period of five years
viz., from 13.02.2019 to 12.02.2024. The royalty
Signature Not Verified
payable for the first year was Rs.26,35,00,000 and for
Digitally signed by
Deepak Singh
Date: 2023.08.24
15:10:41 IST
Reason:
each succeeding year it was to be higher by 10%.
Civil Appeal Nos.5171-5172 of 2023 Page 1 of 14
3. The mining area was 25 hectares falling in plot
nos.5 and 9 in village Bilharka, Tehsil Naraini, District
Banda (State of U.P.).
4. Pursuant to the grant, the original petitioner
obtained environmental clearance for mining in the
area and in terms thereof the mining lease was
executed appending therewith a map of the mining
area.
5. According to the original petitioner, when he
commenced mining operations, the district
administration of Chhatarpur, State of Madhya
Pradesh (in short, the State of M.P.) raised an
objection to the mining operations conducted by the
original petitioner on the ground that 300 meters of
the demised mining area fell within the territorial
limits of the State of M.P.
6. It is the case of the original petitioner that
objection of the district administration of Chhatarpur
was duly reported to the officers of the State of U.P.
but they failed to resolve the boundary dispute.
Rather, the State of U.P raised a demand of
Rs.6,58,25,000/- as next instalment payable towards
royalty. Aggrieved therewith, the original petitioner
invoked the jurisdiction of the High Court under
Article 226 of the Constitution of India by filing Writ C
No.18794 of 2019 seeking a direction upon the State
Civil Appeal Nos.5171-5172 of 2023 Page 2 of 14
of U.P. as well as the State of M.P. – (a) to resolve the
boundary dispute in the demised area and (b) to
permit the original petitioner to continue mining
operations in the demised area. In the alternative it
was prayed that if the boundary dispute is not
resolved, and the original petitioner is not permitted to
carry out mining operations, further realization of
royalty be suspended.
7. In Writ C No.18794 of 2019, the High Court
called for instructions from the counsel representing
the State of U.P. In response thereto, the Additional
Chief Standing Counsel representing the State of U.P.
produced a letter, dated 15.07.2019, written by the
Chief Secretary, Government of U.P. to the Director,
Geology and Mines, Government of U.P. wherein, with
reference to the concerned mining area, a request was
made to ban mining/mineral extraction till the mining
area is properly demarcated.
8. By taking notice of the aforesaid letter dated
15.07.2019, the High Court disposed of Writ C No.
18794 of 2019 with a direction to the State of U.P. to
resolve the dispute expeditiously in terms of the letter
dated 15.07.2019. It was also directed that till the
dispute is resolved, no coercive action be taken against
the original petitioner to recover the royalty.
Civil Appeal Nos.5171-5172 of 2023 Page 3 of 14
9. After disposal of Writ C No.18794 of 2019, a
second writ petition i.e., Writ C No.37749 of 2019 was
filed by the original petitioner before the High Court,
claiming, inter alia , that since the State of U.P. could
not resolve the boundary dispute, the State of U.P. and
its officers be directed to refund the amount already
deposited by the appellant including expenses
amounting to Rs.26,65,66,666/- with 9% interest.
10. By the impugned order dated 30.09.2022, the
High Court allowed Writ C No.37749 of 2019 on the
ground that since the State had failed to deliver
possession of the demised mining area, the amount of
money paid for gaining mining rights was liable to be
refunded. While allowing the writ petition, the
submission made on behalf of the State of U.P. was
noticed in paragraph 6 of the judgment, which is
extracted below:
“6. On the other hand, learned counsel for the
respondents submitted that after the order dated July
18, 2019 was passed by this Court in the earlier
petition filed by the petitioner, a communication
dated December 26, 2019 was sent by the District
Magistrate, Banda, U.P. to the Collector, Chatarpur,
M.P. requesting him to constitute a joint inspection
team consisting of Sub Divisional Magistrate of
concerned Tehsil, Police and Mining Departments for
joint inspection/measurement of the disputed area
and fix a date for inspection, so that the Sub
Divisional Magistrate of concerned Tehsil as well as
the officials of Police and Mining Departments of State
of U.P. may remain present at the spot on the said
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date along with the relevant records for joint
demarcation. However, no response was received
thereto. Thereafter, vide order dated March 21, 2020,
District Magistrate, Banda granted permission for
carrying out mining operations in the undisputed
area of the land leased out to the petitioner in terms
of the government letter dated March 17, 2020.
Hence, the petitioner is not entitled to refund of the
amount deposited.”
The High Court then proceeded to notice two
letters (i.e., dated December 26, 2019 and March 21,
2020) of the District Magistrate Banda in paragraph 9
of its order, which is extracted below:
“9. In the aforesaid writ petition, this Court vide order
dated July 18, 2019 directed the State to resolve the
dispute with reference to the letter dated July 15,
2019. It is thereafter that the communication dated
December 26, 2019 was sent by the District
Magistrate, Banda, U.P. to the Collector, Chatarpur,
M.P. with a request to constitute a team of concerned
official for conducting joint inspection/measurement
of the disputed area. However, when no response was
received thereto, vide order dated March 21, 2020,
District Magistrate, Banda granted permission for
carrying out mining operations in the undisputed
area of the land leased out to the petitioner in terms
of the government letter dated March 17, 2020.”
Thereafter, the High Court considered a
supplementary affidavit filed by the original petitioner
wherein a stand was taken that the undisputed area
is full of pebbles, small particles of boulders and rocks
with no sign of sand, therefore, mining operation is not
possible. Based on that, the High Court briefly
recorded its reasons in paragraph 12 and allowed Writ
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C No. 37749 of 2019 in terms of the directions
contained in paragraph 13 of the impugned order
dated 30.09.2022. For a quick reference, the contents
of paragraphs 12 and 13 of the impugned judgment
are extracted below:
“12. The stand taken by the respondents seems to be
that the petitioner was allowed to carry out excavation
of minor minerals in the undisputed area out of total
area of 25 hectares, which itself establishes that the
interstate boundary dispute was not resolved.
Besides this, nothing has been pointed out from the
record that possession of aforesaid undisputed area
was handed over to the petitioner. However, the
petitioner may have opted for taking lease of a
particular plot for carrying out excavation of minor
minerals keeping in view the total plot and the
availability of minor minerals therein, which may or
may not be commercially viable for a part of the area.
13. For the reasons mentioned above, in our view,
the respondents having failed to hand over the
possession of the area allotted to the petitioner for
carrying out excavation of minor minerals, in our
opinion, the petitioner is entitled to get refund of the
entire amount deposited for the purpose along with
interest @ 6% per annum from the date of deposit of
the said amount till the date it is refunded. The
needful shall be done by the authorities concerned
within a period of three months from the date of
receipt of copy of the order. In case, the amount is
not refunded within the prescribed period, any
interest payable to the petitioner thereafter, shall be
the responsibility of the officer(s)/official(s), who may
be responsible for delay in compliance of the order.”
11. After the impugned order dated 30.09.2022
was passed, a review application was filed on behalf of
the State of U.P. and its officers (respondents in the
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writ petition) stating, inter alia , that in the writ petition
there was no averment to the effect that possession of
the area allotted to the petitioner for carrying out
excavation of sand/morum was not handed over to
him. It was claimed that the observation in paragraph
13 of the judgment that the respondents had failed to
handover the possession of the area for carrying out
excavation of minerals is based on no material. It was
also stated in the review application that the prayer for
refund of Rs.26,65,66,666/- was completely
misconceived as the writ petitioner had never
deposited the said amount. The amount deposited by
the petitioner was only Rs.6,58,75,000/- as security
and Rs.6,58,75,000/- as first installment for the first
year’s royalty. Thus, the total amount deposited by
the original petitioner was only Rs.13,17,50,000/- and
not Rs.26,65,66,666/- for refund of which, prayer was
made in the writ petition. In addition to above, in the
review application, it was stated that the original
petitioner had already excavated a total of 22,820
cubic meters of sand/morum between 15.02.2019 up
to 26.05.2019. Additionally, it was pleaded in
paragraph 8 of the review application that the
advertisement inviting bids for the concerned mining
area had clearly specified that the prospective bidder
may inspect the mining area as also the approach road
Civil Appeal Nos.5171-5172 of 2023 Page 7 of 14
to the mining area before participating in the bidding
process. In paragraph 9 of the review application, it
was submitted that if the writ petitioner had
participated in the bid after verifying the mining area
and had himself submitted the mining plan along with
the environmental clearance certificate disclosing the
estimated quantity of mineral available, it cannot now
lie in his mouth to claim that he was not given
possession of the mining area or that the area was
such where no mining was possible.
12. This review application was allowed in part
vide impugned order dated 12.05.2023 whereby the
earlier order dated 30.09.2022 was modified in terms
below:
“5. Considering the facts and circumstances, as it is
apparent from the face of the record, we accordingly
modify the order dated 30.09.2022 to the effect that
the opposite party would be at liberty to deduct the
amount from the total outstanding amount to the
effect (should be read as extent) of total excavated
sand/morum of 22,820 cubic meters, as it is alleged
the same has been excavated by the petitioner with
effect from 15.02.2019 to 26.05.2019 and
accordingly, the rest of amount along with requisite
interest may be returned.”
13. Aggrieved by the orders dated 30.09.2022 and
12.05.2023, the appellants are before us.
14. We have heard Ms. Garima Prashad, Senior
Additional Advocate General for the State of U.P. and
its officers (the appellants herein) and Ms. Meenakshi
Civil Appeal Nos.5171-5172 of 2023 Page 8 of 14
Arora, learned senior counsel for the respondent (the
original petitioner).
SUBMISSIONS ON BEHALF OF THE APPELLANTS
15. On behalf of the appellants it was submitted
that the High Court proceeded to decide the matter on
an assumption that the State had failed to deliver the
possession of the mining area to the original petitioner
(the respondent herein). It was submitted that the
stand of the original petitioner was not that the State
had failed to deliver possession. Rather, his case was
that officers of the State of M.P. were causing
hindrance in the mining operations of the original
petitioner by claiming that a portion of the mining area
fell within the territorial limits of the State of M.P. It
was also urged on behalf of the appellants that the
original petitioner had bid for the mining area after
being satisfied that it could be mined and had also got
an environmental clearance certificate in respect
thereof which indicated that the entire area was
mineable to the extent indicated in the lease. In these
circumstances, according to the appellants’ counsel,
there was no frustration of the contract and, therefore,
the question of refund does not arise. According to the
appellants’ counsel, the High Court has failed to
address the issues in the correct perspective and
thereby erred in law by issuing a direction for refund
Civil Appeal Nos.5171-5172 of 2023 Page 9 of 14
of the money after deducting the value of the
sand/morum already excavated from the mining area.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
16. Per contra, on behalf of the respondent (i.e.,
original petitioner), it was submitted that from the own
letter of the State Government dated July 15, 2019,
which finds mention in the first order of the High
Court dated 18.07.2019 passed in Writ C No.18794 of
2019, the mining operations were suspended till
resolution of the boundary dispute. Therefore, as
admittedly the boundary dispute with the State of M.P.
could not be resolved, there was no option but to treat
the mining contract as frustrated warranting refund of
the amount.
DISCUSSION
17. We have considered the rival submissions and
have perused the record.
18. A plain reading of the order of the High Court
dated 30.09.2022 would reflect that it was passed on
an assumption that the respondents in the writ
petition, namely, the appellants herein, had failed to
deliver possession of the area allotted to the original
petitioner for excavation of minerals. Interestingly, in
the writ petition, copy of which has been brought on
record as Annexure P-9, we could not find any specific
Civil Appeal Nos.5171-5172 of 2023 Page 10 of 14
statement that the State of U.P. and its officers had
failed to handover possession of the mining area.
Rather, in paragraph 7 of the writ petition, the stand
taken by the petitioner is that when the petitioner,
after having all the documents in hand, went to the
spot, he found Patwari of district Chhatarpur (State of
M.P.) along with Station House Officer of Police Station
Bansiya, district Chhatarpur, who informed the
petitioner that 300 meters of the demised area fell
within the boundaries of the State of M.P. and,
therefore, no mining could be allowed on that portion.
In paragraph 7, it is also stated that the State of M.P.
permitted its residents to install Pockland Machine for
excavation and they have started mining the area
leased out to the original petitioner by the State of U.P.
Paragraph 7 of the writ petition is extracted below:
“7. That after having all the documents in hand,
when the petitioner just went to start the preliminary
methodology of mining and reached the spot, he
found that patwari of Chhatarpur, State of M.P. along
with Station House Officer, Police Station Bansiya of
District Chhatarpur entered 300 meter in the lease
area of the petitioner indicating that this area is in
M.P. and there cannot be mining by State of U .P. and
they permitted the persons of State of M.P. to install
Pockland Machine for excavation and they started
mining in the leased area of the petitioner. Officers of
M.P. State crossed mid stream of Ken River towards
State of U.P. State side, which falls in District Banda.
This act of the officers of M.P. State is clear violation
of river mapping. The petitioner at once informed the
Officers of State of U.P. on 23.02.2019. True copy of
the representation of the petitioner dated 23.02.2019
Civil Appeal Nos.5171-5172 of 2023 Page 11 of 14
is being annexed herewith and marked as Annexure
No. 6 to this writ petition.”
19. In paragraphs 10 and 11 of the writ-petition it
is stated by the original petitioner that there is a
boundary dispute between the two States i.e., State of
M.P. and State of U.P. and that both States have failed
to resolve the dispute. Interestingly, in the second part
of paragraph 11 of the writ-petition, the original
petitioner stated:
“11. … The petitioner on the basis of scrutiny of
papers and revenue maps of both the States is very
much sure that the stand of State Government of M.P.
is wrong and if G.P.S. Survey Mapology is used
alongwith electronic surveillance of flow of water, then
it will be seen that the map prepared by State of M.P.
is wrong and it requires to be corrected, but the
thinking and saying of the petitioner falls on deaf ear,
as the petitioner is a little Indian.”
20. On a careful reading of the writ-petition filed
by the original petitioner, as noticed above, prima
facie , it appears that the State of U.P. was justified in
taking a stand in the review petition that the High
Court had wrongly observed that the State of U.P. (i.e.,
respondents in the writ petition) had failed to
handover possession of the area allotted to the
petitioner for carrying out mining operations.
However, while deciding the review petition, this
aspect of the matter has not been dealt with by the
High Court. Further, the High Court failed to address
the ground no.8 in the review petition wherein it was
Civil Appeal Nos.5171-5172 of 2023 Page 12 of 14
stated that in the advertisement dated 16.02.2018 the
bidder was advised to inspect and satisfy itself
regarding the mining area before participating in the
bidding process. As to what would be the effect of that
clause on the relief claimed by the original petitioner
is a matter which requires consideration. But there
appears no discussion in that regard in the orders
impugned. That apart, there is no determination of the
area, if any, which falls in the disputed territory i.e.,
within the State of M.P. There is also no discussion
on the plea of the appellants that the amount of which
refund was sought was far in excess of the amount
paid by the original petitioner.
21. Having found that the High Court has not
properly addressed all the issues raised before it, we
deem it appropriate to remand the matter to the High
Court by restoring the writ petition to its original
number so that it is decided afresh in accordance with
law.
22. Consequently, these appeals are allowed. The
impugned orders dated 30.09.2022 and 12.05.2023
are set aside. Writ C No.37749 of 2019 is restored to
the file for fresh adjudication. It is made clear that if
parties have not already exchanged their affidavits in
the said writ petition, they may do so within six weeks
from today. We request the High Court to decide the
Civil Appeal Nos.5171-5172 of 2023 Page 13 of 14
matter in the light of our observations above,
expeditiously, preferably, within a period of three
months from the date a copy of this order is furnished
before it.
23. We, however, clarify that we have not
expressed our opinion on the merits of any of the
issues that may arise for adjudication by the High
Court.
…....................................... CJI.
(Dr Dhananjaya Y Chandrachud)
…......................................... J.
(J B Pardiwala)
……...................................... J.
(Manoj Misra)
New Delhi;
August 23, 2023
Civil Appeal Nos.5171-5172 of 2023 Page 14 of 14