Rakesh Kumar and Another vs State of Uttar Pradesh and Others

Rakesh Sharma, J.—Heard Ms. Pushpila Bisht, learned Counsel for the applicants-petitioners, learned Standing Counsel appearing for the respondents 1 and 2 and Dr. L. P. Misra learned Counsel for the private respondents 3 to 16.

This is an application submitted by the applicants seeking transfer of Revision No. 76 (R) of 2007 along with other connected revisions filed by the private respondents 3 to 16, pending before the Respondent No. 2 to the Respondent No. 1 or any other Secretary of any other department nominated/appointed by the Chief Secretary, Government of U.P., Lucknow.

According to the petitioners-applicants, the authority, Mr. M. V. S. Reddy, Secretary, Geology & Mining, Civil Secretariat, Lucknow is biased and is adamant to uphold his earlier order passed on the administrative side, which was quashed by a Division Bench of this Court in Writ Petition No. 7467 (MB) of 2008 Pratibha Karnwal and Anr. v. State of Uttar Pradesh and Ors. on 8.9.2008. The Revisional Authority, respondent No. 2, Secretary, Geology & Mining, Lucknow is acting with a pre-determined mind and pre-judging the issues before hearing the case finally. In Bijnore, several mining leases were granted to the respondents 3 to 16, who were involved in large scale of illegal mining, thus, stopping the natural flow of the river ''Ganges''. The State Government sent a team which carried out a joint inspection of the mining site areas-under operation of private respondents 3 to 16 in November, 2007. A detailed inspection report was submitted on 4.12.2007 to the District Magistrate, Bijnore, who had issued show-cause notices to the private respondents 3 to 16, indicating therein that appropriate action may be taken against them and they were also asked to deposit the amount as per the Inspection Report.

Being aggrieved of the aforesaid notice dated 4.12.2007, the respondents 3 to 16 filed separate Revisions before the State Government and in response to the same, the State Government, after considering the same, has passed a common order in January, 2008 directing the District Magistrate to dispose of the matter, after taking into account the version of the concerned authorities, including the private respondents 3 to 16. The District Magistrate had found the charges proved against the private respondents 3 to 16 and a recommendation was sent on 16.4.2008 for cancellation of their leases. The respondents 3 to 16 were interested in lingering the matter to enable them to carry out illegal mining by creating several obstructions. However, the District Magistrate had finally recommended to the State Government for cancelling the leases. When the State Government did not take any decision on the recommendation of the District Magistrate, a reminder was sent to the State Government on 28.5.2008 by the District Magistrate, but the State Government in the department of Geology & Mining, continued to slumber over the matter and no directions were issued to the District Magistrate.

Being aggrieved of the said action, the petitioners-applicants moved an application for impleadment in the Revisions. A formal application was submitted. An order was passed on the administrative side, but the private respondents 3 to 16, who were carrying on illegal mining, had submitted an application on 13.8.2008, which was entertained by the Secretary, Geology & Mining by passing an order, which had effect of nullifying all the recommendations of the District Magistrate. He granted relief to the private respondents 3 to 16 on the administrative side to carry-on with the mining operations. However, the statutory Revision No. 76 (R) of 2007 along with other connected revisions were pending disposal before the Government, under Rule 78 of the Uttar Pradesh Mining & Mineral (Concession) Rules, 1963. There is no provision in the Scheme of Rules to make interference on the administrative side by the present Secretary. On 19.8.2008, the aforesaid order was communicated to the District Magistrate by the Special Secretary to the Government of U.P.

Feeling aggrieved of the aforementioned order dated 19.8.2008, allowing the private respondents 3 to 16 to carry-on with the illegal mining operations in the riverbed, the petitioners-applicants had filed a Writ Petition No. 7467 (MB) of 2008 in this Court. On 8.9.2008, this Court had allowed the writ petition and quashed the order dated 19.8.2008. A copy of the judgement rendered by the Division Bench of this Court in Writ Petition No. 7467 (MB) of 2008 Pratibha Karnwal and Anr. v. State of U.P. and Ors. has been annexed to this application. Following observations were made against the respondent No. 2, i.e. Secretary, Geology & Mining, Lucknow:

We are of the view that it was not desirable for the revisional authority to entertain any representation preferred by the respondents 6 to 19 on administrative side when the revision petitions were fixed for 2.8.2008, for hearing. The notices dated 4.12.2007 reveal that amount in Crores is outstanding against the private respondents 6 to 19 and in spite of the order of the District Magistrate dated 19.4.2008, no decision was taken by the State Government even though a reminder was sent by the District Magistrate on 28.5.2008. The impugned communication dated 19.8.2008 on the basis of the order dated 13.8.2008 passed by the revisional authority on administrative side is legally not maintainable.

In the result, the writ petition succeeds and is hereby allowed. The impugned communication dated 19.8.2008 sent by the opposite party No. 2 to the opposite party No. 4, a copy of which has been annexed as Annexure - 1 to the writ petition is hereby quashed.

Above findings and observations are still in vogue. The respondents 3 to 16 had moved similar application in the pending revisions on 15.9.2008 before the Secretary, Geology & Mining, Lucknow and without any notice to the petitioners-applicants, the Secretary had fixed the revisions for 22.9.2008, although the application seeking impleadment filed by the petitioners was pending. However, with much persuasion and under the orders of this Court and as per the directions contained in the judgment and order passed by this Court, the application for impleadment filed by the petitioners-applicants was entertained on 22.9.2008. However, in place of one week, as sought for, only three days'' time was allowed by the opposite party No. 2 and the matter was fixed for hearing on 25.9.2008. On 25.9.2008, the petitioners'' counsel had filed reply to the objections and now the opposite party No. 2 has fixed the case for 3.10.2008.

Accordingly, learned Counsel for the petitioners-applicants, the opposite party No. 2 is acting in utter haste and is adamant to pass the same order in revision, which he had passed on the administrative side, nullifying the recommendations of the District Magistrate, who had specifically recommended always to cancel the mining leases issued to the respondents 3 to 16, who were carrying out in the mining site of riverbed. The operations were detrimental to the environment and causing obstructions in the free flow of river. Several other allegations have been levelled against the respondent No. 2, the present Secretary, Mr. M. V. S. Reddy, Secretary, Geology & Mining, Lucknow.

Dr. L. P. Misra, learned Counsel appearing for the respondents 3 to 16 has raised preliminary objections that the application for transfer of the revision is not maintainable in this Court. The Revisional Authority, i.e. Secretary, Geology & Mining, Government of U.P., Lucknow is not a subordinate Court, as defined in Section 3 of the Code of Civil Procedure. Such transfer application is not amenable to the jurisdiction of this Court u/s 24 of the Code of Civil Procedure, as the Revisional Authority is neither a Court nor a Tribunal.

Dr. L. P. Misra has drawn the attention of this Court towards several provisions of the Uttar Pradesh Mining & Mineral (Concession) Rules, 1963. According to him, the application is not maintainable. He while holding brief for opposite parties 3 to 16 has tried to defend the action of the Secretary, Geology & Mining, Lucknow and submitted that no inference of bias or mala fide can be drawn against the Secretary, who has not been arrayed as party in person and only Secretary, Geology and Mining has been arrayed as respondent.

While dealing with the preliminary objections, this Court has asked Dr. L. P. Misra, whether he is holding brief for private litigants or for the State of U.P., Secretary, Geology & Mining, Lucknow. The answer was in negative that he was not holding brief for the Secretary, but he is espousing the cause of the respondents 3 to 16.

On being asked as to how the alleged rights of respondents 3 to 16 shall be effected, if the revisions are dealt with and disposed of by any other Secretary or Chief Secretary when allegations of bias and mala fide have been levelled against the present Secretary, who is dealing with revisions and acting with pre-determined mind. He also failed to explain as to what harm is going to be caused to the contesting respondents, if the revision is transferred to any other Secretary when one of the litigating parties has come to this Court complaining that he has no hope of justice before whom the revision is pending at present.

Dr. L. P. Misra has insisted that the revision should be dealt with by the present Secretary and the revisions could not be transferred to some other officer.

In response to the submissions of Dr. L. P. Misra, learned Counsel for the petitioners Ms. Pushpila Bisht has placed reliance on the cases of S.K. Sarkar, Member, Board of Revenue, U.P., Lucknow Vs. Vinay Chandra Misra, and a Full Bench of this Court reported in Kamla Yadav v. Smt. Sushma Devi and Ors. 2004 (22) LCD 40.

According to Ms. Pushpila Bisht, learned Counsel for the petitioners-applicants, the phrase ''courts subordinate to it'' used in Section 10 is wide enough to include all courts which are judicially subordinate to the High Court, even though administrative control over them under Article 235 of the Constitution of India does not vest in the High Court. Under Article 227 of the Constitution, the High Court has the power of superintendence over all courts and tribunals throughout the territories to which it exercises its jurisdiction. As per Scheme contained in Uttar Pradesh Mining & Mineral (Concession) Rules, 1963, statutory revision lies in the Government. Under Rule 78 of the Rules, the Revisional Authority is a Subordinate Court or Forum, as such, the Revisional Authorities, i.e. Chief Secretary, Government of U.P. and Secretary, Geology & Mining can be defined as Court subordinate to the High Court.

Learned Counsel for the petitioners-applicants has submitted that if the transfer application is not maintainable, the same can be treated as writ petition under Article 227 of the Constitution of India. This Court has ample powers to exercise its discretion under Article 227 of the Constitution of India to undo the wrong.

In the case of Kamla Yadav v. Smt. Sushma Devi (supra), while dealing with the question "whether in view of the provision of Section 3 of the CPC for the purposes of the CPC only the Courts referred to in Section 3 are the Civil Courts subordinate to the High Court and the District Court as the case may be and no other, i.e. the authorities and that Tribunals such as one constituted under Motor Vehicles Act do not come within the framework of expression "Courts subordinate to High Court for the purpose of 115 of the Code?, the Full Bench has answered that the only ingredient, which has to be seen is that whether an authority is exercising the judicial powers. The Full Bench has further recorded in the said judgment that the Courts mentioned in Section 3 CPC are not the Civil Courts, other Courts and Tribunals can also be Civil Courts subordinate to the High Court for the purpose of Section 115 Code of Civil Procedure. It has recorded the detailed findings and reasons for arriving at this conclusion.

After hearing learned Counsel for parties and perusing the material on record and especially the aforementioned chronological events, which have been indicated in foregoing paragraphs and the various orders passed by the present Secretary, Geology & Mining, it can be gathered that the Revisional Authority is not exercising its jurisdiction properly. A Division Bench of this Court, in its order dated 8.9.2008, has recorded its views against the Revisional Authority that it was not desirable for him to entertain any representation preferred by the private respondents 3 to 16 on administrative side, when the revisions were fixed for hearing. There is a discussion about the conduct of the Revisional Authority in the judgment rendered by the Division Bench also. Several allegations have been levelled against the Secretary, Geology & Mining in the application.

This Court is taking note of the allegations and the findings recorded by the Division Bench of this Court. This Court cannot be persuaded to keep its hands off, guided by the technical reasons. This Court is also having jurisdiction to deal with the matters, writ petitions and applications, which are being filed for adjudication under Article 227 of the Constitution of India. Article 227 of the Constitution of India also empowers the High Court to have powers of superintendence over all the Courts and Tribunals in the State. It also has a power to prescribe rules or forms etc. for the tribunals and Courts. Therefore, the mere contention that the revisional authority dealing with a statutory revision brought before it under the provisions of Uttar Pradesh Mining & Mineral (Concession) Rules, 1963 would not be subordinate to the High Court is not sustainable. The subordinate of a Court or Tribunal or Statutory Forum is dependent on various factors.

In the present case, it has emerged from the pleadings that this Court should interfere in the matter where serious allegations of bias and mala fide have been levelled against the Revisional Authority, dealing with the case. The Case has now been fixed for 3.10.2008.

In the typical facts and circumstances of the case and considering the chronology of events, this Court thinks it appropriate that the matter may be dealt with by some other officer, not by the one, who is presently holding the post of Secretary, Geology & Mining, Government of U.P., Lucknow. The respondent No. 1, the Chief Secretary, Government of U.P. is directed to call for the records of the aforementioned Revisions and pass appropriate order in the matter. The Revisions shall be dealt with by the Chief Secretary himself or he can assign these matters for disposal and hearing to some other Secretary or officer of equivalent rank in the Government, having powers to deal with such statutory revisions. Necessary order shall be passed within a week from the date of presentation of a certified copy of this order. Till such an arrangement is made and matters are assigned to some other Secretary or to be dealt with by the Chief Secretary, no order shall be passed by the present Secretary, Geology & Mining, Lucknow (Mr. M.V.S. Reddy, as has been informed by the learned Counsel for the petitioners-applicants) who is dealing with the Revisions at present.

The application is allowed with the above directions.