- (1.) M. Katju, J. This writ petition has been filed against the impugned order dated 23-9-1986 Annexure 10 to the writ petition and for quashing the impugned recovery certificate dated 6-2-87 issued by the respondent No. 3 and sent to the respondent No. 4 for recovery of Rs. 3,55,000 from the petitioner. The petitioner has prayed for refund of an amount of Rs. 50,000 as well as Rs. 7,500.
(2.) HEARD learned counsel for the parties. An action was held by advertising right for mining lease of sand on the bank of the river Yamuna in Village Sandi Maanpur, District Ballia. It is alleged in para 2 of the petition that the petitioner was granted mining lease for sand on 21-9-77 for a period of 3 years ending on 30-6-80 for a total of Rs. 3,00,000. In para 8 of the petition it is stated that on 16-2-78 the petitioner submitted the lease deed with the challan of Rs. 7,500 as stamp fee but till today no lease deed duly signed by the respondent No. 3 has been delivered for registration nor any information about sining of the deed by the respondent No. 3 was given to him. It is alleged that the petitioner could not actually commence any work of taking out the sand. It is further alleged that neither any demarcation of the area was done nor possession over the mining area was given to the petitioner by the respondents. It is further alleged in para 4 that the entire area of mining of operation remained flooded with water for a considerable time in the year 1997-78 and neither any bridge could be made nor did it remain possible to carry out any mining operation in the area. It is alleged in para 5 of the petition that since the area was unfit for mining operation the petitioner went back to Banda where he came to know that fresh auction was to be held and reauction was done despite the petitioner's representation. The petitioner then made a representation on 19- 6-80 for refund of the money deposited by the petitioner vide Annexure 1. In para 7 it is stated that the respondent No. 2 Director, Mines and Minerals, U. P. sent a report dated 18-8-81 to the respondent No. 1 stating that the lease was signed by the witnesses on 27-2-78 and by respondent No. 3 District Magistrate, Banda on 28-2-78 having certain irregularities as stated in the said paragraph. True copy of the reply is Annexure 2. Thereafter respondent No. 1 called for reports from respondent No. 3 by two orders dated 31-12-85 and 7-6-86 vide Annexures 3 and 4. The respondent No. 3 in compliance with order dated 31-12-85 called for report from the concerned authorities. The Lekhpal by his report dated 22-3-86 and the Naib Tahsildar by report dated 5-4-86 and Pradhan in statement recorded on 30-6-86 stated that the petitioner was neither in possession nor did he carry out any mining operation during the aforesaid period. True copy of the report are Annexures 5, 6 and 7. On the basis of this report the respondent No. 3 submitted a detailed report to respondent No. 1 vide Annexure 8. It is alleged in para 12 that the report of the respondent No. 3 has been confirmed. It is alleged that the petitioner is not liable to pay anything to the State and on the contrary he is entitled to the refund of his entire amount of Rs. 50,000 deposited by him and that he could not carrying out any mining operations. The petitioner has relied upon Rule 14 of the U. P. Minor Minerals (Concession) Rules, 1963 and has alleged that there is no liability on him. The said Rule 14 has been quoted in para 14 of the writ petition. It is stated in Rule 14 that if the lease deed is not executed within 3 months of the communication of the order granting the mining lease due to any fault of the applicant, the State Government may revoke the order granting the lease and thereafter the application fee shall be forfeited. The period for execution of the lease deed is one month from the date of the order vide Rule 14 (3 ). Under Rule 14 (5) in the case of mining lease of sand 50% amount has to be deposited by the applicant in advance before the commencement of the mining lease and rest in two equal instalments. It is alleged by the petitioner that the lease deed was not executed nor did the petitioner commences actual work and hence he cannot be called upon to pay any amount. The petitioner has, therefore, challenged the impugned recovery.
(3.) A counter-affidavit has been filed by the respondents. In para 3 of the same it is stated that the mining lease deed for sand on the bank of river Yamuna in Village Saandi Madanpur (sic) sanctioned in favour of the petitioner for a period of 3 years for Rs. 5,00,000. The half amount of auction money for the year i. e. Rs. 50,000 was deposited by the petitioner by 15-2- 1978 in instalments. On 15-2-78 the petitioner also deposited a sum of Rs. 7500 as Stamp duty. In para 4 it is stated that the petitioner was given the lease deed after its preparation. Thereafter the petitioner was also issued a notice on 18-7- 1978 to the effect that after depositing the due instalments in accordance with the term and condition of the lease deed he could get the lease deed registered. It was also clarified in the said notice that in case the petitioner failed to fulfill the terms and conditions of the lease deed the same is liable to be cancelled and the remaining amount will be recovered as arrears of land revenue. Service of the notice was affected on the petitioner's representative on 2-8-78 and the petitioner replied to the same on 8-8- 78 in which he asserted that he was ill and will deposit the lease money at the earliest. In the said reply the petitioner nowhere stated that he had not received the lease deed. Thereafter the petitioner was again given notice dated 18-11-78 to which he replied on 29-12-78 and in this reply also the petitioner made no grievance about having not received the lease deed. The copy of the notices dated 18-7-1978 and 18-11-1978 are Annexures CA 1 and CA 2. The reply dated 8-8-1978 and 19-12-1978 of the petitioner are Annexure CA 3 and CA 4. It is further stated that as per the procedure, the concerned area for which the lease has to be granted is noticed under Rule 23 (1) of the U. P. Minor Mineral Concessions Rules, 1963 and therefore, subsequently after the grant of the lease there remains no necessity of making any demarcation nor the petitioner ever made any request in this regard. In para 5 of the counter-affidavit it is stated that in the rainy season of every year, the rivers get flooded and the petitioner is not entitled to seek any benefit on this basis. It is further stated that the mining work at this place is also carried out by boats even in rainy season. In para 6 it is stated that the lease in favour of the petitioner was for the period up to 30-6-1980 but since the petitioner did not deposit the remaining auction amount nor gave any satisfactory reply to the various notices, orders for cancellation were passed in accordance with the provisions of law and the orders were also passed for recovery. In para 8 it is stated that the enquiry reports from various level were sent to the State Government, and after due consideration of the same vide G. O. dated 23-9- 86, the State Government, passed an order stating that the petitioner is liable for payment of royalty only for the period of 21-9-1977 to 18-1-1979. Hence the impugned recovery certificate was issued. True copy of the G. O. dated 23-9-86 is Annexure C. A. 5. In para 9 of the counter-affidavit it is stated that the petitioner was a lease deed holder for the period in question in accordance with the provision of Chapter IV of the Rules. In Rule 23 (3) it has been stated that in the matter of auction lease the provisions of Chapter II will not apply. In the present case, the petitioner was an auction lease holder, but he is trying to seek the relief which is applicable to a mining lease holder. In para 10, it is stated that the petitioner got the lease deed prepared and signed before the witnesses and all the action taken against the petitioner is based upon the terms and conditions laid down in para 3 Part II of the lease deed. A true copy of the lease deed is Annexure CA 6. This lease deed was duly signed by the petitioner. Amendment application and supplementary affidavit were also filed and we have considered the same. We have also perused the rejoinder affidavit.;