HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 39 of 2009 State of Uttarakhand and others. …Appellants Versus M/s Kilkileshwar Mining Company And another. …Respondents Shri L.P. Naithani, Advocate General assisted by Shri Subhash Uppadhyay, Brief Holder for the State/appellants. Shri B.P. Nautiyal, Advocate for the respondents. Dated: April 2, 2010 CORAM :Hon’ble Tarun Agarwala, J. Hon’ble V.K. Bist, J. (Delivered by Hon’ble V.K. Bist, J. ) This appeal has been preferred against the judgment and order dated 23.10.2008 passed by the Hon’ble Single Judge of this Court in Writ Petition no. 76 (M/S) 2008 ‘M/s Kilkileshwar Mining Company and another vs. State of Uttarakhand and others’ whereby the writ petition filed by the respondents was allowed and the impugned orders passed by the appellants were quashed. By the said judgment, the mining lease of the respondents was restored for the remaining period. However, it was clarified that if the respondents violate the conditions of the mining agreement, which was granted in their favour, the same could be cancelled after giving adequate opportunity of hearing to them, as provided in the Uttaranchal Minor Mineral (Concession) Rules,2001. 2 2. Brief facts, as emerge from the record, are that on 08-05-1987 a mining lease was executed between the Governor of Uttar Pradesh and one M/s Rajendra Rawat & Co., proprietor Ramesh Singh Rawat under the provisions of U.P Minor Mineral (Concession) Rule, 1963 (hereinafter referred to as the ‘Rules’) in respect of land measuring 24 Acres of land (479 Nali, 7 Muthi) situated in village Naithana, Pati Chauras, Tehsil Devprayag, District Tehri Garhwal. The lease was for a period of ten years. Supplementary mining lease was granted in favour of respondent no.1 - M/s Kilkileshwar Mining Company in place of M/s Rajendra Rawat & Co. on 01.06.1994. Another mining lease was initially executed in favour of C.V. Singh & Co. proprietor Shri Chandra Beer Singh on 16-05-1987 in respect of 24.4 Acres land (488 Nali, 2 Muthi ) situated in village Rani Hat, Patti Chauras, Tehsil Devprayag, Pargana Kirti Nagar, District Tehri Garhwal, which was also for a period of ten years. Supplementary lease deed was executed on 21- 06-1994 in favour of Shri Satye Singh Rana son of Shri Matbar Singh Rana and Smt. Sushila Devi in place of C.V. Singh & Co. The lease period of both the supplementary lease deeds was fifteen years. Both the lease deeds of respondents nos.1&2 were renewed for a period of 10 years on 21-07-2000 & on 01-08-2000 respectively. 3. On 12-01-2001 the State Government issued a circular directing the District Magistrate, in the State of Uttarakhand not to renew any 3 contract/agreement/lease deed including the mining lease deeds after the expiry of such deeds and not to grant any new lease till further orders. In pursuance of the circular dated 12.01.2001, the District Magistrate, Tehri Garhwal passed an order on 25-01-2001 by which the renewal of lease done on 21-07-2000, in favour of the petitioner no.1 was cancelled. The order dated 25.01.2001 was challenged by the respondent no.1 before this Court in writ petition no.526 (M/B) of 2001-M/s Satish Singh Bachan Singh Vs. State Government of Uttranchal & another. The Writ petition was disposed of on 28-03-2001 with the following directions: “In view of the fact that the delegatee has cancelled the renewal of the lease made by the delegator, we set aside the order dated 25-01-2001 passed by him (respondent no.2). However, it is left open to the State Government to pass an appropriate order in relation to the renewal of the lease of the petitioner as it thinks fit and appropriate and in accordance with law." 4. After the disposal of the writ petition the respondent no.1 made representation before the appellant no.2 with a prayer to recall the order dated 25-01-2001 in the light of the judgment dated 28-03-2001 passed by this Court. The appellant no.2 instead of recalling the order dated 25-01-2001, stopped the respondents from carrying on mining operation work after 07-05- 2002, though according to them the mining lease deed was initially renewed upto 15-05-2002. The appellant no.2 also passed an order on 04-10- 4 2002 rejecting the application of the respondent nos.1&2 declining to interfere with the order passed by him earlier on 25-01-2001. The order dated 04-10-2002 was challenged before the Commissioner in Appeal no.7/2002-03, which was allowed vide order dated 03-06-2003. The respondent no.1 made a representation on 05-06-2003 to the appellant no.2 for restoring the mining lease and also not to interfere in the mining operation. But when nothing was done, the respondents filed a Writ Petition no. 777 (M/B) of 2003 before this Court for a direction to appellant no.2 to allow them to carry on mining operation work. On 09-10-2003 Division Bench of this Court disposed of the Writ Petition in the following manner: “Since the Collector has yet to take decision in compliance of the order passed by the Appellate Court i.e. Commissioner, therefore, the relief prayed for cannot be granted to the petitioners. However, it is provided that the Collector shall take a decision in the matter as directed by the Appellate Court with in a period of 10 days from the date of production of Certified copy of this order.” 5. Thereafter the appellant no.2 passed an order dated 27/28-10-2003 rejecting the application of the respondents. Aggrieved by the said order the respondents filed a Writ Petition no.1216 of 2003(M/S), wherein liberty was given to the respondents to file an appeal. Thereafter, the respondents filed an appeal before the Commissioner, who vide order dated 20-09- 2004 dismissed the appeal. The order of 5 Commissioner dated 20.09.2004 was challenged by the respondents in Writ Petition no. 948 of 2004(M/S). The same was dismissed as withdrawn with liberty to file a revision. The respondents preferred a revision before the State Government which was dismissed on 20-12- 2007. Thereafter, the respondents filed a Writ Petition no.76 of 2008(M/S) before this Court challenging the orders dated 25-01-2001/ 28-10- 2003/ 20-10-2004 and 20.12.2007. The Writ Petition was allowed by the Hon’ble Single Judge of this Court on 23-10-2008 and the orders passed by the respondents were quashed. Aggrieved by the said order, the present Special Appeal has been preferred. 6. The Hon’ble Single Judge in his Judgment referred the order dated 28-03-2001 passed by this Court in Writ Petition no.526(M/B) of 2001 by which the order dated 25-01-2001 was set aside and liberty was given to the State Government to pass an appropriate order regarding the renewal of the lease of the respondents as it thought fit and appropriate in accordance of law. The Hon’ble Single Judge observed that the appellants had utterly failed to establish that the State Government ever passed independent order and appropriate order in the light of the observations made in the order dated 28-03-2001. The Hon’ble Single Judge further observed that the circular dated 12-01-2001 issued by the State Government nowhere 6 provided that any such agreement, which had already been executed earlier for the purposes of renewal of lease deeds, should be cancelled. The circular only stated that no renewal would be made in future. The Hon’ble Single Judge quashed the order passed by the appellants on the ground that the agreement between respondent no.2 and State was complete on execution of renewal of lease deed dated 01-08- 2000 and also on the ground that the provisions of the ‘Rules’ were not violated by the respondents. 7. We have heard Shri L.P. Naithani, the learned Advocate General assisted by Shri Subhash Uppadhyay, the learned Brief Holder for the appellants and Shri B.P. Nautiyal, the learned counsel for the respondents and perused the entire material for on record. 8. Shri L.P. Naithani, Advocate General submitted that the decision for the creation of State of Uttarakhand was taken by the Parliament in the month of July 2000. The respondents managed to get the lease renewed in the month of August 2000 i.e. before the creation of State of Uttarakhand. He argued that since the decision for the creation of State of Uttarakhand was already taken and mining lease of the respondents was upto May,2002, the State of U.P. should not have renewed the mining leases for a further period of 10 years from May,2002 7 and the matter of further renewal from May,2002 should have been left open for the new State Government i.e. the State of Uttarakhand to decide. He argued that infact State of U.P. had no power to renew the lease which was going to expire in the year 2002 in respect of the area falling under the new State of Uttarakhand. The learned Advocate General further argued that the Hon’ble Single Judge erred in restoring the mining lease of the respondents. According to him the Hon’ble Single Judge could not have restored the mining lease, but could have only directed that the matter be referred to the State Government to decide independently. Thus, according to him, the Hon’ble Single Judge erred in issuing a direction for the renewal of the lease. He further submitted that there was no mining lease in existence in favour of the respondents because mining lease granted in their favour stood cancelled on 25.01.2001. The mining lease could only be granted under the order of the State Government which was never done. The High Court could not restore it and in the present case the Hon’ble Single Judge erred in restoring the mining lease in favour of the respondents. 9. On the another hand, Shri B.P. Nautiyal, learned counsel for the respondents submitted that circular dated 12-01-2001 issued by the State Government did not authorize the appellant no.2 to cancel lease deeds which had already been granted. It simply authorized the authority not to renew any lease deed further. He argued that 8 existing lease deeds could be cancelled only on the ground of violation of the rules. 10. The first argument advanced by the learned Advocate General cannot be accepted because at the time of the renewal of lease deed i.e. in the month of August, 2000 the State of U.P. was fully competent to take a decision in respect of the renewal of the lease. Thus, it cannot be said that the State of U.P. had no power to renew the mining lease in favour of the respondents or committed any illegality in renewing the lease. The second argument of the learned Advocate General also does not have any force as from a simple reading of the circular dated 12-01-2001 issued by the State Government, it is clear that the circular does not provide cancellation of existing lease deeds. The circular only states that on the expiry of the lease, no renewal shall be made. For proper appreciation, the circular dated 12.01.2001 is reproduced below: “mRrjkapy ’kklu m|ksx foHkkx] lfpoky; Hkou] nsgjknwu la[;k-178/4-1/ l.m. /2000-2001 12 tuojh] 2001 leLr ftykf/kdkjh] mRrjkapy] mRrjkapy esa orZeku esa mRrj izns’k ’kklu dh [kuu uhfr ds vUrxZr vusd mi [kfut ds ifjgkj ds fy, Bsds/vuqcU/k/vuq+Kk Ik= vkfn fn;s x;s gS] ’kklu Lrj ij fy;s x;s fu.kZ; ds vuqlkj mRrjkapy ds fy;s vyx ls ,d [kuu uhfr fu/kkZfjr dh tk jgh gSA 9 vr bl dze esa eq>s ;g dgus dk funZs’k gqvk gS fd orZeku esa mRrjkapy esa ou ,oa flfoy Hkwfe esa mi [kuu ds ifjgkj ds fy;s vFkok pqxku ds fy;s tks Hkh Bsds/vuqcU/k/vuq+Kk Ik= vkfn fuxZr fd;s x;s gSa] mudh fe;kn lekIr gks tkus ij mudks vkxs dh vof/k ds fy;s uohfudj.k ugha fd;k tk;s vkSj dksbZ u;s Bsds/vuqcU/k/vuq+Kk Ik= vkfn fuxZr u fd;s tk;saA ;g vkns’k rRdkfyd izHkko ls vfxze vkns’kksa rd izHkkoh jgsaxsA (ih. lh. ’kekZ ) lfpo, m|ksx la[;k-178/4-1/ l.m. /2000-2001 izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko’;d dk;Zokgh gsrq izsf’r : 1. izfrfyfi uksMy vf/kdkjh] [kuu funs’kky;] 144-Qst-2, clar fcgkj, nsgjknwu A 2. futh lfpo, m|ksx ea=h dks ekuuh; m|ksx ea=h th ds voyksdukFkZA 3. vkS|ksfxd fodkl ’kk[kk ds leLr vuqHkkxA (ih. lh. ’kekZ )” lfpo 11. In the present case, the renewal by the Competent Authority was already there and it was not the case of the appellants that the respondents violated any condition of lease renewal agreement or any condition of the ‘Rules’. In our view, existing lease can only be cancelled by adopting due process of law which has not been done in the present case. The 10 Hon’ble Single Judge, rightly quashed the orders passed by the respondents and has rightly restored the lease of the respondents for the remaining period. We find the order passed by the Hon’ble Single Judge is correct. 12. Consequently, the Special Appeal is dismissed. No order as to costs. (V.K. Bist, J.) (Tarun Agarwala, J.) 02.04.2010 02.04.2010 NCM: