Smt. Pushpa v vs State Of Uttarakhand & Others

Ramesh Ranganathan, C.J.

This special appeal is preferred against the judgment passed by the learned Single Judge in Writ Petition (M/S) No.757 of 2018 dated 27.09.2018.

The appellant-writ petitioner had invoked the jurisdiction of this Court filing Writ Petition (M/S) No.757 of 208 seeking the following reliefs:-

"(i)issue a writ, order or direction in the nature of certiorari quashing the Notification No.1207/VII-1/24-Kha/2017 dated 07.08.2015, which was further followed by another notification dated 26.02.2016 and 19.05.2016 (annexure nos.1, 2 and 3), whereby the rates of royalty have been revised.

(ii) issue a writ, order or direction in the nature of certiorari quashing the impugned show cause demand order dated 09.11.2017 & 07.12.2017 whereby the permission of mining operation granted vide order dated 12.03.2015 has been kept in abeyance.

(iii) issue a writ, order or direction in the nature of mandamus directing the respondents not to put hindrance under the grab of demand notice in carrying out the mining operations by the petitioner as per the terms and conditions of lease deed issued in his favour."

The notifications, which the appellant-writ petitioner requested this Court to quash, are those whereby the rates of royalty payable by a lessee, for quarrying minerals (sand and boulders), have been revised periodically from time to time.

This case has had a chequered history. Writ Petition (M/S) No.757 of 2018 was heard earlier by a learned Single Judge of this Court and, by order dated 22.03.2018, the learned Single Judge disposed of the writ petition holding that the matter stood covered by the judgment and order passed on 21.03.2018 in Writ Petition (M/S) No.3077 of 2017 (Narendra Pal Singh vs. State of Uttarakhand and other connected matters), whereby the Secretary, Mining, Government of Uttarakhand was directed to look into the matter. The writ petition was disposed of in terms of the order passed in Writ Petition (M/S) No.3077 of 2017 and batch dated 21.03.2018.

Aggrieved thereby, the appellant-writ petitioner preferred Special Appeal No.401 of 2018. A Division Bench of this Court, in its order dated 10.07.2018, took note of the reliefs sought for in the writ petition and, thereafter, observed that the appellant-writ petitioner was granted a mining lease on 04.02.2015 (Mr. A.S. Rawat, learned Senior Advocate appearing for the appellant, would submit that the date in the appellate order is a typographical error, and the actual date on which the mining lease was granted was 20.03.2016).

Be that as it may, the Division Bench noted that, among the reliefs prayed for in the writ petition, included the appellant-writ petitioner's complaint about not being permitted to carry on quarrying operations, despite a lease having been granted in their favour; the appellant-writ petitioner had also challenged several proceedings by which royalty was demanded; Special Appeal No.272 of 2018 was filed against the judgment passed in Writ Petition (M/S) No.216 of 2018 which came to be decided along with Writ Petition (M/S) No.3077 of 2017; the relief sought for in Writ Petition (M/S) No.3077 of 2017 was entirely different from what was sought for in Writ Petition (M/S) No.216 of 2018; the issues which arose for consideration in Writ Petition (M/S) No.757 of 2018 could not be compared with the issues which arose in Writ Petition (M/S) No.3077 of 2017; the learned Single Judge should not have disposed of Writ Petition (M/S) No.757 of 2018 in the light of the judgment rendered in Writ Petition (M/S) No.3077 of 2017; and the matter should have been considered independently. The appeal was allowed; the order of the learned Single Judge, in so far as it related to Writ Petition (M/S) No.757 of 2018, was set-aside; and the writ petition was remitted back for consideration afresh.

Thereafter, by the order under appeal dated 27.09.2018, the learned Single Judge observed that the appellant-writ petitioner was given the mining license to mine the riverbed material on private land; the petitioner's case was that, subsequently, by a general order the appellant-writ petitioner was restrained from carrying on mining activities; she was unable to carry on mining operations despite government orders, and the work orders issued to her; by the impugned notifications, the rate of royalty had been increased; a demand notice has been issued to the appellant-writ petitioner to pay the outstanding amount of royalty; and the recovery proceedings had been initiated against her. The learned Single Judge, thereafter, observed that, since the dispute involved appreciation of disputed questions of fact as to what extent the appellant-writ petitioner had carried on mining etc., it would be better that the appellant-writ petitioner approaches the State Government. The writ petition was disposed of with a direction that, if the appellant-writ petitioner approached the State Government, her case should be considered as expeditiously as possible by passing a speaking and reasoned order, and after providing her an opportunity of hearing.

As noted hereinabove, the relief which the appellant-writ petitioner sought in the writ petition, among others, is to quash the notifications dated 07.08.2015, 26.02.2016 and 19.05.2016, whereby the rates of royalty had been revised from time to time. At least, in so far as this prayer is concerned, it does not relate to the actual extent of land on which mining operations are being carried on, but to the power of the authorities to issue these notifications revising the rates of royalty, and in making the revised rates applicable to the appellant-writ petitioner with whom a mining lease agreement was entered into prior to when these notifications were issued. These questions can only be examined by this Court, in proceedings under Article 226 of the Constitution, albeit on the limited grounds of judicial review. The prescribed authority, in terms of the notifications, cannot be directed to consider the appellant-writ petitioner's representation, as the authority would be bound by the notifications issued by the State Government in this regard. The validity of the notifications, which are under challenge in the writ petition, ought to have been examined by the learned Single Judge. We are satisfied, therefore, that the learned Single Judge ought not to have relegated the appellant-writ petitioner to approach the authorities concerned.

While Mr. S.S. Chauhan, learned Deputy Advocate General appearing for the State, would submit that the order of the learned Single Judge has already been given effect to by the authorities concerned, it is not even contended before us that the appellant-writ petitioner had belatedly invoked our jurisdiction. The appeal was filed within time. The mere fact that the order of the learned Single Judge has been given effect to by the respondents would not justify the appellant-writ petitioner being deprived of her right to prefer an appeal against the order of the learned Single Judge.

The order under appeal is, accordingly, set-aside, and the writ petition is again restored to file. We request the learned Single Judge to examine the appellant-writ petitioner's challenge, to the validity of the various notifications, after the respondents file their counter affidavits. Learned Deputy Advocate General submits that the respondents will file their counter affidavits within four weeks from today. It is open to Mr. A.S. Rawat, learned Senior Counsel appearing on behalf of the appellant-writ petitioner, to request the learned Single Judge, any time after four weeks from today, to take up the writ petition for an early hearing.

The appeal stands disposed of, accordingly.