- (1.) R. Dayal, J. Respondent No. 1 granted a mining lease of Gitti, Boulder and Morram in respect of 50. 584 hectare of Gata Mo. 367 of village Khohi Pargana and Tahsil Naraini, District Banda vide lease- deed dated 8-6 1994 for a period of 10 years under the Uttar Pradesh Minor Minerals (Concession) Rules, 1963 (herein-in- after referred to as the Rules ). Respondent No. 1 issued a notice dated 25-4-1996 (Annexure 2 to the writ petition) alleging that the petitioner had illegally excavated minerals to the extent of 7105 cubic metres whereas he paid royalty only in respect of 1905 cubic metres and he had committed theft of royal ty and so he was liable to pay royalty for 5200 cubic metres at the rate of Rs. 10 per metre amounting to Rs. 52,000. By this notice the petitioner was required to pay Rs. 52,000 alongwith interest at the rate of 24% per annum by 19-10-1995. The petitioner was further required to clarify the circumstances in which the offence of committing theft of royalty had been committed. By this notice, the petitioner was further informed that in case of petitioner's failure to deposit the amount and making the required clarifica tion, the lease-deed would be cancelled and the amount would be recovered as arrears of land revenue. To this notice, the petitioner sent a reply dated 10-6-1996 (Annexure 3 to the writ petition) denying the allegations made in the notice and making a request to cancel the notice. Respondent No. 1 passed an order on 12-7-1996 (Anneuxre 4 to the writ petition) to the effect that the petitioner had excavated minerals to the extent of 7105 cubic metres whereas he paid royalty for 1905 cubic metres only and, therefore, he was liable to pay royalty on 5200 cubic metres at the rate of Rs. 10 per cubic metre amounting to Rs. 52,000. A direction was issued to the officer incharge, Mining to issue notice for recovery of the amount and in case of non-receipt of the amount to issue recovery certificate. Fur thermore, keeping in view the previous con duct and also the habit of committing theft of royalty the lease-deed granted in favour of the petitioner was cancelled.
(2.) BY this writ petition, the petitioner seeks a writ of certiorari quashing the order dated 12-7-1996 (Annexure 4 to the writ petition) and also a writ of mandamus directing the respondents not to interfere in the working of the petitioner's lease. The petitioner has alleged that respondent No. 1 does not have any jurisdiction or authority to come to a conclusion that the lease holder has done any illegal mining and it was only after taking the proceedings in civil court that royalty could be recovered in pur suance of a decree that could be passed by the civil court. It is further alleged that the impugned order has been passed in viola tion of the procedure prescribed in the order dated 13-12-1991 (Annexure 5 to the writ petition) issued by the Director, Geol ogy and Mining, U. P. Khanij Bhawan, Luck-now. Further, it is pleaded that under Rule 58 a lease can be determined only if a demand is raised for the payment of royalty and if royalty is not paid within the period fixed for such payment; but in the present case the Collector has sent a composite notice raising a demand and determining the lease simultaneously which is illegal and without any authority of law. In the counter-affidavit filed on be half of the respondent1, it is alleged that the petitioner has paid royalty for 1905 cubic metres of Gitti whereas excavation has been done to the extent of 7105 cubic metres and the petitioner did not deposit royalty even after the demand had been made vide letter dated 25-4-1996 (Annexure 2 to the writ petition) and failure to comply with the notice dated 25-4-1996 resulted in cancella tion of the lease under the provisions of Rules 58 and 60. Further, it is pleaded that the petitioner has the alternative remedy to approach the Commissioner of the Division under Rule 77 of the Rules or before the State Government under Rule 78 and the petition is liable to be dismissed on the ground of alternative remedy being avail able to the petitioner. We have heard Sri Mukesh Prasad, learned counsel for the petitioner and Sri Pradeep Kumar Gupta, learned Standing Counsel for the respondents, on the ques tion whether an alternative remedy of ap peal was available to the petitioner.
(3.) TO appreciate the submissions made by the learned counsel for the parties it is necessary to refer to a few rules. Under Rule 8. "the State Government or the Officer authorised by it in this behalf may" refuse or grant a mining lease. Rules 58 (1), 71 and 77, which are material, states as under: "58. Consequences of non-payment of royalty, rent or other dues.- (1) The State Government or any Officer authorised by it in this behalf may determine the mining or auction lease after serv ing a notice on. the lessee to pay within thirty days of the receipt of the notice any amount due or deed rent under the lease including the royalty due to the State Government if it was not paid within fifteen days next after the date fixed for such payment. This right shall be in addition to and without prejudice to the right of the State Government to realise such dues from the lessee as arrears of land revenue. 71. Delegation.- The State Government may, by notification direct that any power excercisable by it under these rules may in relation to such matters and subject to such conditions, as may be specified in the notification, be exercisable also by such officer or authority subordinate to the State Government as may be specified in the notification. 77. Appeal - An appeal against an order -passed under these rules by the District Officer of the Committee shall lie to the Divisional Commis sioner within a period of sixty days from the date of communication of such order to the party ag grieved. " Learned counsel for the petitioner has submitted that under Rule 77 an appeal lies only against an order passed by the Dis trict Officer or the Committee, but in the present case the impugned order was passed by the District Officer in exercise of the power delegated by the State Government under Rule 71 and as such the order passed by the District Officer was, in fact, the order passed by the State Government and as such no appeal lay against the impugned order. On the other hand, the learned Standing Counsel has submitted that the impugned order was passed by the District Magistrate in his own right and as such appeal lay against his order under Rule 77. Both the learned counsel have referred to notifica tion No. 4343-1/18-12-89-601/87, dated 29-8-1990 issued by the Special Secretary to U. P. Government in the name of Governor. By this notification the District Magistrate has been vested with the power in respect of Rules 8, 36, 37, 44 and 52 for the minerals except lime and marble within the district other than reserve forest area making it clear that this power shall be exercisable also by the State Government. The notification does not provide for the power in respect of Rule 58. In does not also say that the power would be exercised by the Officer mentioned therein on behalf of the State Government. In fact, the notification makes it clear that power is to be exercised in addi tion to the State Government, by the specified officer. Moreover, the notification does not purport to have been issued under Rule 71. This makes it manifest that the power is to be exercised under this notifica tion by the District Magistrate not on behalf of the State Government as delegate of the State Government, but as an officer authorised by the State Government, being the specified officer under Rules 8,36,37,44 and 52.;