Davendra Singh vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

By virtue of the mining lease dated 7th March, 2014, the petitioner was granted a mining lease for the period of five years to be operated from the land as included in Appendix-1 of the said lease dated 07.03.2014. As per the Appendix-1, which constituted part of the lease, it was naap land, which was belonging to the petitioner was under his ownership as was recorded in Shreni 1-ka, over which, the mining rights was given to be exercised by the petitioner.

The petitioner instead of conducting the mining operation over and on the area, lying over land in Shreni 1ka, i.e. khasra Nos. 32/1, 33 and 34, having a total area of 1.504 hectares, in fact, after removing the pillars, which was demarcated and placed by the mining authority, had rather in fact had started the excavation of the mining material, i.e. RBM from the river bed areas, which fell to be in Shreni 6(1) of the Land Revenue Manual.

For the said purpose, an inspection was conducted and report has been submitted against the petitioner on 5th May, 2014, whereby, it has been recorded that the petitioner has illegally mined 16420 cubic meter of RBM from khasra No. 55/1, having a an area of 1.042 hectares recorded as Shreni 6(1) and, hence, it was illegally mined from the area which was not falling within the area demarcated in his favour by the mining lease dated 7th March, 2014, and as a consequence thereto, the respondents have determined the payment of royalty @ Rs.450 per cubic meter, which totalled to a sum of Rs.73,89,000/-.

Based on the aforesaid report as submitted by the Inspecting Team constituting of Tehsildar and S.D.M, a notice as contemplated under the Rules of 2005, which stood amended in 2011, was issued to the petitioner on 15th May, 2014, calling upon him to submit his explanation, to the report submitted against him for conducting an illegal mining from an area of land which was outside the area which was leased to him and he was directed to submit his explanation by 9th June, 2014. In pursuance to the notice as issued on 15th May, 2014, Case Nos. 52/16 and 52/18 of 2014, State Vs. Devendra Singh and others was registered against the petitioner. The same was contested by the petitioner by filing an objection on 7th May, 2017 and, ultimately, the District Magistrate, while considering the explanation dated 07.05.2017 given by the petitioner to the show cause notice dated 15.05.2014 and also considering the finding which has been recorded in the report dated 09.05.2014, had affirmed the imposition of the royalty @ Rs.450 per cubic meter and, ultimately, the District Magistrate by the impugned order had imposed the royalty at the said rate along with a penalty as provided under Section 47 of the Act and, consequently, the petitioner was directed to deposit a sum of Rs.15,02,800/-.

Being aggrieved against the said order dated 20th August, 2014, the petitioner had preferred an Appeal before the Commissioner, Kumaon Division, which was numbered as Appeal No. 16/2014-15, Devendra Singh Vs. State of Uttarakhand through District Magistrate, Udham Singh Nagar. Simultaneously, during the pendency of the Appeal, itself, the petitioner has also filed a Writ Petition No. 492 of 2015, Davendra Singh Vs. State of Uttarakhand and others, which was disposed of by the Coordinate Bench of this Court, directing the Appellate Authority to decide the Appeal exclusively on its own merits within a period of 60 days. However, the recovery proceedings in pursuance to the impugned order in appeal dated 20th August, 2014, as passed by the District Magistrate was kept in abeyance till the appeal is decided.

Consequently, the Commissioner considered the Appeal, being Appeal No. 16/2014-15, Davendra Singh Vs. State of Uttarakhand and after considering the rival contentions, i.e. the report which found place on record as paper No. 3/3 and the report of the Revenue Inspector, which finds place on record as paper No. 3/4 and considering the objection of the petitioner had affirmed the order of District Magistrate by the impugned judgment dated 30th May, 2015, holding thereof that looking to the covenants of the report submitted by the S.D.M. and Tehsildar, the petitioner was held responsible for undertaking the illegal mining operations over a land which stands recorded in Shreni-6 and which was not part of the land contained in Appendix, annexed with the lease dated 7th March, 2014, executed in favour of the petitioner.

Consequently, considering the report dated 9th May, 2014, the Appellate Court by the impugned judgment has affirmed the order of the District Magistrate dated 20th August, 2014 and has dismissed the appeal by the judgment dated 30th May, 2015. Consequently, the petitioner has preferred the present Writ Petition, praying for the following reliefs :

"(i) Issue a writ, order or direction in the nature of certiorari, calling for the original record and pleased to quash the impugned orders dated 20-8-2014 (Annexure-7) along with 30-5-2015 (Annexure -9) issued by the respondent no. 2 and 3 respectively in case no. 52/16 & 52/18 of 2014, State Vs. Davendra Singh and others as well as Appeal No. 16/2014-15, Davendra Singh Vs. State, respectively.

(ii) Issue a writ, order or direction in the nature of mandamus, directing and commanding the respondents that they shall not interfere in mining activities being carried out by the petitioner in leased area without any reason.

(iii) Pass any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

(iv) Award the cost of the writ petition."

Admittedly, as per the terms of the mining lease, the same has been granted to the petitioner for a period of five years w.e.f. 7th March, 2014, but owing to the report dated 9th May, 2014, and after having been held to have indulged in illegal mining of 16420 cubic meter of RBM, the royalty as well as twenty times penalty as contemplated under Section 47 of the Act and the Rules framed thereunder has been imposed on him.

When the Writ Petition was entertained, an interim order was granted in favour of the petitioner on 8th September, 2015, it was subject to the condition that if the petitioner deposits a sum of Rs.10 lacs, the recovery of the balance amount as directed to be paid by the impugned order would be kept in abeyance. The same was not complied with, consequently, a time enlargement application was preferred, which was numbered as Application No. 11864 of 2015, wherein, a prayer was made that the time to deposit the amount as directed by the interim order may be enlarged and the amount may be accepted in part, i.e. by depositing of draft No. 396503 as issued by the PNB Branch, Sitarganj, in favour of the Registrar General of this Court for sum of Rs.5,00,000/-.

As far as the interim order is concerned, this Court is not concerned with it at this stage when the writ petition is being heard and adjudicated upon finally. The respondents have filed their counter affidavit on 28th June, 2016, wherein, the respondent No. 2 had supported the report dated 09.05.2014 submitted against the petitioner with regard to his illegal mining activities being conducted outside the naap land belonging to the petitioner for which lease was granted to him and had contended that the action taken in pursuance to the impugned order of imposing the royality @ Rs.450 per cubic meter and the penalty on the same which is contemplated under the Statute, itself was rightly imposed upon the petitioner, hence, the Writ Petition deserves dismissal.

After having heard learned counsel for the petitioner and having gone through the contents of the report as well as the appendix annexed with the lease deed granted in favour of the petitioner on 7th March, 2014, it has been consistently held and found by documents that the petitioner had indulged himself in conducting the mining operation from the area of land which was not his naap land and was not falling in Shreni 1-ka but rather the same was being operated from the land lying in the river bed classified under Revenue Law as land under Shreni 6(1).

Since the District Magistrate as well as the Appellate Authority, after considering the evidence on record and after considering the rival contentions raised by the parties had upheld the contents of the report and the mode and manner in which the mining operation was carried by the petitioner on the land outsie the lease deed under the garb of the lease granted to him on 7th March, 2014, this Court does not find any merit in the Writ Petition and, consequently, dismisses the same.

However, it is directed that the amount thus deposited by the petitioner in pursuance to the interim order passed by this Court before the Registrar General would be remitted back to the respondents District Magistrate.

After the dictation of the judgment, the other learned counsel for the petitioner, who appeared later after the dictation of the judgment, has drawn attention of this Court to the contents of para 13 of the Writ Petition, wherein, he has questioned the competence of the Tehsildar and the Deputy Collector conducting the inspection on 9th May, 2014, and thus doubts the propriety of the report submitted by them on 9th May, 2014. First of all, the said contention pertaining to the propriety of the report and the competence of the Officers who have conducted the inspection, was not a ground which was raised either before the District Magistrate or even in an Appeal. Hence, for the first time, the same cannot be raised in the Writ Petition.

The learned counsel for the petitioner has further made reference to the amended Rules as notified under Section 23 C of Mines and Minerals (Development and Regulation) Act, 1957 on 31st July, 2015 and specifically reliance has been placed on the amended Rule 13 of the Rules brought into the effect w.e.f.31.07.2015.

Before making any observation on the amendment, this Court is conscious of the fact that the mining lease stood granted in favour of the petitioner on 7th March, 2014, and the inspection, regarding illegal mining activity was conducted prior to enforcement of the Rules, which was conducted earlier thereto as the report was submitted on 9th May, 2014, which happens to be prior to the enforcement of the amended Rules which as per the amendment contemplates that the District Officers or Senior Mining Officer / Authorities of the State not below the rank of S.D.M. would be the Officers who would be entitled to conduct the inspection. The Rules as framed and enforced by the notification No.1031/VII-I/2015/158-Kha/2004 dated 31st July, 2015, under Section 23 C of the Act of 1957, is not a substantive provision but rather procedural in nature because it only contemplates and provides with an Authority who would be responsible for conducting the inspection. As on the date when lease was granted or as on the date on which inspection was conducted and the report was submitted on 09.05.2014, these Rules were not in existence, hence, would not apply retrospectively and furthermore, it is clarified that since the amended Rules of 31.07.2015 being procedural in nature, they will not have a retrospective operation on the action of inspection which has already been taken and concluded. Hence, this argument of the learned counsel for the petitioner is not accepted, apart from the fact that it was not a ground raised before the Authority concerned at either of the stages, rather it is being raised for the first time before the Writ Court. This Court is of the view that since the amended rules notified on 31.07.2015, being procedural would be applicable prospectively on any future contemplated inspections.

Even otherwise also, Rule 13 C, as mended on 31st July, 2015, which is being sought to be enforced for questioning the inspection conducted on 9th May, 2014, was by a Revenue Official, who had given the report of illegal mining, as per the Rule 13(1). Furthermore, the amended rule relates for the purpose of questioning of "stored mineral" or for any other purpose connected with the act. This provision will not apply or govern the present dispute.

Thus this Court finds no merits in the Writ Petition and the same is accordingly dismissed.

However, there would be no order as to costs.