# M/S Alpine Recourses L.L.P., M.P v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 282
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-23
- **Case number:** Writ-C No. 5636 of 2022
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-alpine-recourses-l-l-p-m-p-v-state-of-u-p-ors-49655
- **Pages:** 9

## Headnote

Law
-
UP
Minor
Minerals
(Concession) Rules, 1963 - Ch. IV - Grant
of mining lease - Auction finalized -
Certain mining activities was found to be
taken place on the allocated area -
Reassessment of estimated quantity of
minerals claimed - However, security
amount forfeited on refusal of executing
lease deed - Legality challenged - Held,
the area, as was allotted to the petitioner,
was found overlapping with the area of
another person to whom a lease deed had
already been executed approximately two
months
prior.
Considering
this
the
petitioner requested for reassessment of
the estimated minerals which was not
acceded to by the authorities rather the
insistence was for execution of the lease
deed which the petitioner refused to
execute - Held further, Insistence on the
part of the respondents for execution of
the lease deed by the petitioner and upon
refusal of the petitioner, the forfeiture of
the security deposit and the royalty
amount, cannot be said to be legally
sustainable in the eyes of law. (Para 24)
Writ petition allowed. (E-1)
List of Cases cited :-
2 All. M/S Alpine Recourses L.L.P., M.P. Vs. State of U.P. & Ors.
283

## Text

282 INDIAN LAW REPORTS ALLAHABAD SERIES
02.12.2021 as such the said order also
merits to be quashed.

27. This aspect of the matter has also
been considered by the Apex Court in the
case of Assistant Forest Conservator and
Ors Vs. Sharad Ramchandra Kale
reported in (1998) 1 SCC 48 wherein the
Apex Court has held as under:-

"The truck of the respondent was
ordered to be confiscated by the Assistant
Conservator of Forest, as it was found
involved in commission of a forest offence.
The
order
was
confirmed
by
the
Conservator of Forest. Against this order,
the respondent preferred an appeal to the
Session Court but it was dismissed.
Therefore, he approached the High Court
with a petition under Article 227 of the
Constitution. The High Court set aside the
order of confiscation on the ground that
the authorities had failed to establish that
the owner of the truck had any knowledge
that his truck was likely to be used for
carrying forest produce in contravention
of the provision of the Forest Act. This
finding was based upon the evidence on
the record. Therefore, we do not consider
it proper interfere with such finding."

28. Accordingly, keeping in view
the
aforesaid
discussion,
the
Writ
Petition is allowed. The impugned
orders dated 02.12.2021 and 04.03.2020,
copies of which are annexures 1 & 2
respectively to the petition, are quashed.
The authority is directed to release the
vehicle of the petitioner in accordance
with law within a period of six weeks
from the date of receipt of certified copy
of this order provided there is no legal
impediment.
----------
(2023) 2 ILRA 282
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.01.2023

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-C No. 5636 of 2022

M/S Alpine Recourses L.L.P., M.P.
 ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Rahul Srivastava

Counsel for the Respondents:
C.S.C.

A.
Civil
Law
-
UP
Minor
Minerals
(Concession) Rules, 1963 - Ch. IV - Grant
of mining lease - Auction finalized -
Certain mining activities was found to be
taken place on the allocated area -
Reassessment of estimated quantity of
minerals claimed - However, security
amount forfeited on refusal of executing
lease deed - Legality challenged - Held,
the area, as was allotted to the petitioner,
was found overlapping with the area of
another person to whom a lease deed had
already been executed approximately two
months
prior.
Considering
this
the
petitioner requested for reassessment of
the estimated minerals which was not
acceded to by the authorities rather the
insistence was for execution of the lease
deed which the petitioner refused to
execute - Held further, Insistence on the
part of the respondents for execution of
the lease deed by the petitioner and upon
refusal of the petitioner, the forfeiture of
the security deposit and the royalty
amount, cannot be said to be legally
sustainable in the eyes of law. (Para 24)
Writ petition allowed. (E-1)
List of Cases cited :-
2 All. M/S Alpine Recourses L.L.P., M.P. Vs. State of U.P. & Ors.
283
1. Special Leave to Appeal (C) Nos. 1961919620 of 2017; in re: M/s Planet Steel Pvt Ltd
Vs The St. of Har. & ors decided on 10.04.2018.
(Delivered by Hon'ble Abdul Moin, J.)

1. Heard Shri Rahul Srivastava,
learned counsel for the petitioner and Dr.
Uday Veer Singh, learned Additional Chief
Standing Counsel for the respondents no. 1
to 4.

2. The instant petition has been filed
praying for the following main reliefs:

"1. Issue a writ, order or
direction in the nature of certiorari
quashing the order dated 29.06.2022
passed by the Respondent no. 1 / State
Government in revision No. 36 (R) / S.M of
2022 "M/S Alpine Resources LLP vs
Commissioner Chitrakoot Dham Mandal
Banda & others" contained as Annexure
no. 1.

2. Issue a writ, order or direction
in the nature of certiorari quashing the
order dated 30.04.2022 passed by the
Commissioner Chitrakoot Dham Mandal
Banda in appeal no. 00132 / 2020, order
dated 08.01.2020 passed by the District
Magistrate,
Hamirpur,
contained
as
Annexure No. 2 & 3 respectively.

3. Direct the respondents to
refund the security amount + first quarterly
installment of lease amount deposited by
the revisionist along with the 18% of
interest from the date of the deposit to the
date of the refund.
or

Direct the respondents to execute
the mining lease in favour of the revisionist
for the area in question at the present
available and assessed quantity of the
mineral i.e. 2,59,104 cubic meter / year and
accordingly issue amended letter of intent
to the revisionist."

3. The case set forth by the petitioner
is that on 14.08.2017 a Government Order
had been issued by the State Government
providing that henceforth mining leases
were to be granted by e-tender-cum-eauction under Chapter IV of the U.P. Minor
Minerals
(Concession)
Rules,
1963
(hereinafter referred to as the Rules 1963).
In pursuance to the said government order a
notice / advertisement dated 09.05.2018, a
copy of which is annexure 5 to the petition,
was issued by the District Magistrate,
Hamirpur for settlement of mining leases of
sand / mourram under the Rules 1963 in
District Hamirpur for several mining blocks
by e-tendering. As per the Condition no.
13(6) of the Government Order the
applicants had to deposit Rs 15,000/- as
application fee and 25% of the bid amount
as earnest money for each area separately.

4.

In
pursuance
to
the
said
advertisement the petitioner claims to have
participated in the auction proceedings for
grant of the mining lease situated in the
area in Tehsil Sarila, Village Bheri Kharka,
Khand No. 23/21 total area 24.291 hectares
for the assessed quantity of mineral of
3,88,608/- cubic meter per year. In the
second round of bidding the bid of the
petitioner @ Rs 302 per cubic meter was
declared highest and an e-mail to the said
effect had been sent to the petitioner by the
auctioning authority. The petitioner claims
to have completed the formalities and on
07.06.2018 a letter of intent had also been
issued to the petitioner requiring him to
deposit the amount of Rs 2,93,44,704/- i.e.
security deposit equal to one quarterly
installment of lease amount for first year
and Rs 2,93,44,704/- for the first quarterly
installment of lease amount of first year
totaling Rs 5,86,89,408. The aforesaid
amount was deposited by the petitioner.
Subsequent
thereto
an
environment
284 INDIAN LAW REPORTS ALLAHABAD SERIES
clearance certificate was also issued to
petitioner on 31.01.2019, a copy of which
is annexure 7 to the petition.

5. When the petitioner visited the
allotted mining site he found certain mining
activities taking place on his allocated area.
This fact was also admitted as per the letter
dated 21.02.2019 sent by the District
Magistrate, Hamirpur to the Director,
Geology
and
Mining
of
the
U.P.
Government, a copy of which is annexure 8
to the petition. In the said letter various
areas were mentioned but so far as the area
of the petitioner was concerned, which was
23/21, it was indicated that a person to
whom an area namely 23/12 had been
allocated namely M/s Yadav and Sons and
to whom a lease deed has been executed on
11.12.2018, was found to be working in the
area of the petitioner. The letter also stated
that the demarcation which had been
carried out by the authorities has not been
correctly done. Consequently, the District
Magistrate required a fresh demarcation to
be carried out for all the areas as indicated
in the said letter including the area of the
petitioner and the area allocated to M/s
Yadav and Sons namely areas numbers
23/21 and 23/12 respectively. Through a
letter dated 09.03.2019, a copy of which
annexure 9 to the petition, which is a letter
issued to all the leaseholders, it was
indicated that the demarcation work has
been carried out.

6. As the case of the petitioner was
that in terms of the letter issued by the
District Magistrate dated 21.02.2019 the
area allocated to the petitioner was also
overlapping with the area allotted to M/s
Yadav and Sons and as the lease deed had
been executed on 11.12.2018 to M/s Yadav
and Sons as such certain extractions must
have
taken
place,
consequently,
the
petitioner
through
his
letter
dated
23.12.2019, a copy of which is annexure 11
to the petition, approached the District
Magistrate for reassessment of the quantity
of minerals.

7. No heed was paid to the said letter
rather a notice was issued to the petitioner
by the District Magistrate on 26.12.2019, a
copy of which is annexure 14 to the
petition, contending that as per the
notification, a particular quantity of the
mineral had been indicated and on the basis
of the bid of the petitioner, the letter of
intent had been issued as such the petitioner
was required to have the lease deed
executed failing which the letter of intent
shall
be
cancelled
and
the
amount
deposited shall be forfeited.

8. Considering the aforesaid peculiar
situation that had arisen, the lease deed was
not executed by the petitioner which
resulted in the amount deposited by the
petitioner
of
Rs
5,86,89,408/-
being
forfeited vide impugned order dated
08.01.2020.

9. Being aggrieved the petitioner filed
an appeal which was rejected vide the
impugned order dated 30.04.2022, a copy
of which is annexure 2 to the petition. Still
being aggrieved the petitioner filed a
revision before the State government which
has also been rejected by the order dated
29.06.2022, a copy of which is annexure 1
to the petition. Still being aggrieved the
instant petition has been filed.

10. The contention of learned counsel
for the petitioner is that when the
respondents had issued the bid inviting
applications and the estimated quantity of
mineral was specified in the said notice as
3,88,608 cubic meter per year so far as it
2 All. M/S Alpine Recourses L.L.P., M.P. Vs. State of U.P. & Ors.
285
pertained to the area of the petitioner and as
per the letter dated 21.02.2019 issued by
the District Magistrate to the Director,
Geology and mining it emerged that the
area of the petitioner namely the area no.
23/21 was overlapping with the area of M/s
Yadav and Sons whose area was 23/12 to
whom the lease deed had already been
executed on 11.12.2018 i.e. two months
earlier to the said letter as such certain
extractions must have already been made
by M/s Yadav and Sons which thus reduced
the quantity of mineral for which the
petitioner had bid and had also deposited
the royalty amount which fact should have
been considered by the authorities while
compelling the petitioner to execute the
lease deed.

11. Elaborating the same, learned
counsel for the petitioner contends that the
initial e-bid had been issued on 09.05.2018
in which the petitioner had participated per
which the estimated mineral quantity of
area namely 23/21 was 3,88,604 cubic
meter per year. Subsequent thereto the
respondents have issued an e-bid on
21.04.2022, a copy of which is annexure 16
to the petition, per which, so far as the area
of
the
petitioner
namely
23/21
is
concerned, the estimated quantity of
mineral had been indicated as 2,59,104
cubic meter per year which itself is
indicative of the fact that the estimated
quantity of mineral has reduced.

12. He also contends that it is amply
clear from the fact that once the petitioner
did not execute any lease deed and the said
area namely 23/21 was never put to e-bid
or e-auction and there was no other person
who mined the said area barring M/s Yadav
& Sons whose area was overlapping with
the area of the petitioner as such the
reduction of quantity from 3,88,604 cubic
meter per year to 2,59,104 cubic meter per
year over a period of almost 4 years is
indicative of the fact that mining activity
had taken place clandestinely or otherwise
which has resulted in reduction of the
estimated quantity of mineral which fact
has not been considered by the authorities
while passing the impugned orders and as
such on this ground alone the impugned
orders merit to be quashed and the
respondents be directed to return the
amount
forfeited
by
the
authorities
alongwith interest to the petitioner.

13. In this regard reliance has been
placed on the judgment of Hon'ble the
Apex Court passed in Special Leave to
Appeal (C) Nos. 19619-19620 of 2017 in
re: M/s Planet Steel Pvt Ltd vs The State
of Haryana & ors decided on 10.04.2018.

14. On the other hand, Dr. Uday Veer
Singh, learned Additional Chief Standing
Counsel appearing for the respondents, on
the basis of the averments contained in the
counter affidavit, argues that the terms and
conditions of the auction itself stipulated
that the petitioner was required to deposit
the security amount as well as the first
quarterly installment of the yearly royalty
based on the estimate of mineral as was
specified in the notice which in fact was
deposited by the petitioner. However,
subsequently it is the petitioner who
refused to have the lease deed executed
which entailed forfeiture of the deposited
amount in order to prevent loss of revenue
to the State and consequently the petitioner
is not entitled for refund of the security
amount and royalty amount which has been
deposited as it is on account of his lapse
that the aforesaid area allocated to the
petitioner could not be put to another
auction and the State Government having
suffered a loss, the authority has correctly
286 INDIAN LAW REPORTS ALLAHABAD SERIES
proceed to forfeit the amount through the
impugned orders and which also conforms
to Rule 59 of the Rules 1963.

15. So far as the overlapping of the
area of the petitioner vis a vis M/s Yadav
and Sons is concerned, placing reliance on
the averments contained in paragraphs 12
and 13 of the counter affidavit learned
Additional Chief Standing Counsel argues
that
the
directorate
has
done
the
demarcation subsequently and all the lease
holders have been put in their respective
allocated areas.

16. So far as substantial reduction in
quantity of mineral is concerned, reliance
has been placed on the averments made in
paragraph 26 of the counter affidavit to
argue that the estimated quantity of
minerals got reduced on account of heavy
rain.

17. Heard learned counsel for the
parties and perused the record.

18. From a perusal of the record it
emerges that bids were invited by the State
Government
through
notice
dated
09.05.2018 for the purpose of mining for
various areas. So far as the present
controversy is concerned it pertains to area
no. 23/21 situated in Tehsil Sarila, Village
Bheri Kharka. As per the notice dated
09.05.2018 the estimated quantity of
mineral was specified as 3,88,604 cubic
meter per year. The security deposit and the
first quarterly installment of yearly royalty
was to be paid by the successful bidders, in
this case the petitioner, which the petitioner
deposited for a total amount of Rs
5,86,89,408/-. The petitioner also got an
environment
clearance
certificate
for
mining the said area. The controversy arose
when the District Magistrate sent a letter to
the Directorate, Geology and Mining on
21.02.2019 indicating that there was
overlapping in various allotted areas. So far
as the present controversy is concerned, the
area of the petitioner namely area no 23/21
was found to be overlapping with area
allocated to one M/s Yadav and Sons
whose area was 23/12. The said letter also
indicated that the lease deed with respect to
M/s Yadav and Sons has been executed on
11th December 2018. The letter having
been sent on 21.02.2019 meaning thereby
that substantial period of time had already
lapsed as lease deed of M/s Yadav & Sons
had already been executed and there was
overlapping of areas so far as it pertained to
M/s Yadav and Sons and as such the
natural assumption was that M/s Yadav and
Sons must have mined the area of the
petitioner which was overlapping with their
own area. Though the respondents have
carried out a demarcation of the respective
areas, as was required in the order of the
District Magistrate dated 21.02.2019 and as
would be apparent from the perusal of the
letter dated 09.03.2019, a copy of which is
annexure 9 to the petition yet the
controversy which remained was that once
the area of the petitioner was overlapping
with the area for which the lease deed had
been executed to M/s Yadav and Sons
much earlier as such the estimated quantity
of minerals, as found place in the notice
dated 09.05.2018 and for which the
petitioner had bid and had also deposited
the security amount and installment of
royalty would have reduced. Keeping this
into consideration the petitioner made
various requests for reassessment of the
estimated quantity of minerals but to no
avail. The respondents compelled the
petitioner to execute the lease deed which,
taking into consideration the aforesaid
facts, the petitioner refused to do so. After
sending of a notice to the petitioner by the
2 All. M/S Alpine Recourses L.L.P., M.P. Vs. State of U.P. & Ors.
287
District Magistrate on 26.12.2019 and the
petitioner having refused to have the lease
deed executed, the impugned order dated
08.09.2020 was passed by the District
Magistrate forfeiting the amount of security
deposit and the quarterly installment of the
royalty amounting to Rs 5,86,89,408/-. The
appeal and the revision filed by the
petitioner indicating the aforesaid facts and
grounds were also rejected by means of the
orders dated 30.04.2022 and 29.06.2022
and hence the instant petition.

19. The crux of the issue is that when
the respondents through the e-bid dated
09.05.2018 had invited applications for
various areas including the area of the
petitioner and the estimated quantity of
mineral was indicated as 3,88,604 cubic
meter per year and admittedly the said area
of the petitioner namely area no. 23/21 was
found overlapping with the area allotted to
M/s Yadav and Sons which was area no.
23/12 and admittedly M/s Yadav and Sons
was already having lease deed in their
favour and this fact was discovered after a
period of almost two months as would be
apparent from the letter of the District
Magistrate dated 21.02.2019 consequently
whether the estimated quantity of minerals
should have been re-estimated by the
respondents
prior
to
compelling
the
petitioner to execute the lease deed?

20. The amount of mineral having
reduced substantially would be apparent
from the fact that the date of earlier
application inviting e-bid was 09.05.2018
so far as it pertained to area of the
petitioner namely area no. 23/21 and when
the respondents have invited the fresh e
bids as would be apparent from perusal of
notice dated 21.04.2022, it is apparent that
the estimated quantity of minerals stood
reduced from 3,88,604 cubic meter per year
to 2,59,104 cubic meter per year which is a
reduction
of
approximately
33%.
Admittedly the said area had not been put
to auction subsequent to the notice dated
09.05.2018 rather it was only sought to be
done on 21.04.2022. Admittedly, the lease
of
the
area
of
the
petitioner
was
overlapping with the area of M/s Yadav &
Sons for the period from 11.12.2018 till the
re-demarcation of the areas was done on
01.03.2019 as would be apparent from a
perusal of letters issued by the District
Magistrate, Hamirpur and Mining Officer
dated
28.02.2019
and
09.03.2019
respectively. It is not that the petitioner was
not willing to have the lease deed executed
rather all along he was calling upon the
respondents to re-estimate the quantity of
mineral so as to have the lease deed
executed as the petitioner was already
having an environment clearance certificate
in his favour. However the insistence on
the part of the respondents was for
execution of the lease deed (despite the
estimated mineral deposits having reduced
substantially, in this case, by approximately
33% as emerged subsequently). Thus, by
no stretch of imagination or law the order
dated 08.01.2020 issued by the District
Magistrate, a copy of which is annexure 3
to the petition, forfeiting the amount under
deposit
by
the
petitioner
can
be
appreciated. On the same analogy the
orders
impugned
dated
30.04.2022
whereby the appeal has been rejected and
the order dated 29.06.2022 whereby the
revision of the petitioner are also not
legally sustainable in the eyes of law.

21. In this regard, the Court may refer
to judgment of Hon'ble the Apex Court in
the case of M/s Planet Steel (Supra)
wherein the Apex Court, considering
similar circumstances, was of the view that
the entire amount merits to be refunded
288 INDIAN LAW REPORTS ALLAHABAD SERIES
alongwith 9% interest from the date of
deposit till the date of payment.

22. For the sake of convenience, the
judgement of Hon'ble the Apex Court in the
case of M/s Planet Steel (Supra) is
reproduced below:

"It is submitted by learned
counsel appearing on behalf of the State of
Haryana that the area auctioned for mining
purposes was 558.53 hectares. Actually,
what was available for mining was 141.76
hectares. He says that on the basis of
instructions given to him by Mr. R.K.
Sharma,
Mining
Engineer
of
the
Government of Haryana.

This submission is also confirmed
from the response given to an application
made under the Right to Information Act,
which appears on pages 531 to 535 of the
paper book.

It is under these circumstances
that
the petitioner
refused
to
take
possession of the area sought to be
auctioned.

Learned counsel for the State of
Haryana refers to Clause 5 of the terms
and conditions of the auction and submits
that it was the duty of the petitioner to
ascertain whether the land was actually
558.53 hectares or not. Clause 5 of the
terms and conditions reads as follows:

"5. All prospective bidders are
expected and presumed to have surveyed
the areas to make their own assessment for
the potential of the areas for which bids are
to be offered. The State Government shall
not be responsible for any kind of loss to
the bidders/contractors at any point of time
(before or after grant of contract). Further
the bidders are also expected to have gone
through the terms and conditions of auction
notice and also the applicable Acts and
Rules for undertaking mining."

On a plain reading of Clause 5, it
is quite clear that there is no requirement
on the prospective bidder to survey the
area for the purpose of measurement. The
prospective bidder can make an assessment
for the potential of the area for which bids
are to be offered.

It is the duty and responsibility
of the State to ensure that the area sought
to be auctioned for mining purposes is as
per the advertisement.

This view has also been taken by
the Punjab and Haryana High Court in the
case of M/s. Haryana Royalty Company Vs.
State of Haryana & Anr. [CWP No.15431
of 2014] decided on 15th January, 2015.
The admitted position is that this decision
of the Punjab and Haryana High Court has
attained finality.

It is, therefore, incorrect to
contend by the State that the sole
responsibility for measuring the area
sought to be auctioned for mining
purposes was that of the petitioner.

Consequently, we are of the view
that the decision of the High Court is
required to be set aside and the petitioner
is entitled to the refund of the deposited
amount. This amount may be refunded to
the petitioner within a period of four
weeks from today along with interest at
9% per annum from the date of deposit till
the date of payment in view of the vast
discrepancy of the area of the land
mentioned in the advertisement and the
area made available.

The special leave petitions are
disposed of. Pending application, if any,
stands disposed of."

(emphasis by the Court)

23. A perusal of the judgement of
Hon'ble the Apex Court in the case of M/s
Planet Steel Pvt Ltd (Supra) would
indicate that Hon'ble the Supreme Court in
2 All. M/S Alpine Recourses L.L.P., M.P. Vs. State of U.P. & Ors.
289
the aforesaid case was seized of a matter
wherein the area auctioned for mining
purpose was at variance to the actual area
which was made available for mining i.e.
the area had reduced substantially. The
successful bidder refused to take possession
of the area sought to be auctioned which
resulted in forfeiture of the amount
deposited by the successful bitter. The
Apex Court held that the refusal by the
successful bidder to take possession of the
area sought to be auctioned was valid as the
area had reduced and thus the successful
bidder was entitled to refund of the
deposited amount alongwith interest.

24. In the instant case also the area, as
was allotted to the petitioner, was found
overlapping with the area of another person
to whom a lease deed had already been
executed approximately two months prior.
Considering this the petitioner requested
for reassessment of the estimated minerals
which was not acceded to by the authorities
rather the insistence was for execution of
the lease deed which the petitioner refused
to execute. The stand of the petitioner for
reassessment of the estimated mineral
quantity on account of rejection stands
fortified by the orders issued by the
respondents themselves as would be
apparent from the two e-bids dated
09.05.2018 vis a vis 21.04.2022 whereby
the estimated quantity of mineral stood
reduced by approximately 33%. Thus the
insistence on the part of the respondents for
execution of the lease deed by the
petitioner
and
upon
refusal
of
the
petitioner, the forfeiture of the security
deposit and the royalty amount, cannot be
said to be legally sustainable in the eyes of
law.

25. Taking into consideration the
aforesaid discussion the writ petition is
allowed. The orders impugned dated
29.06.2022, 30.04.2022 and 08.01.2022,
copies of which are annexures 1, 2 & 3
respectively to the petition, are quashed.
The respondents are directed to refund the
amount of Rs.5,86,89,408/- alongwith
interest @9% per annum from the date of
deposit till the date of actual payment.
While awarding interest @ 9% this Court is
following the judgement of Hon'ble the
Apex Court in the case M/s Planet Steel
Pvt Ltd (Supra). Let the amount be
refunded within a period of three months
from the date of receipt of a certified copy
of this order.

26. Before parting with the matter the
Court may take judicial notice of the fact
that the estimated mineral deposit for the
area in question reduced by almost 33%
from 2018 till 2022. Admittedly no mining
activity took place over the said area as the
petitioner failed to execute the lease deed
and the said area was not allocated to any
third person in the interregnum except for
the period when the area of the petitioner
overlapped with the area of M/s Yadav &
Sons. The plea taken in the counter
affidavit, more particularly, in paragraph 26
of the estimated mineral deposit having got
reduced on account of heavy rains does not
inspire confidence rather is laughable.

26. Be that as it may, the fact of the
matter remains that valuable mineral
deposits of the State have been allowed to
be frittered away prima facie on account of
inaction
/
connivance
/
collusion
/
carelessness of the authorities concerned
vis a vis the persons who might have
carried out the illegal mining over the
aforesaid area. This being an important
public issue, the Court requires the Chief
Secretary of the State of U.P. to hold an
inquiry into the matter as to how the
290 INDIAN LAW REPORTS ALLAHABAD SERIES
valuable mineral deposits have frittered
away and have reduced substantially over
the aforesaid area over a period of four
years. For the said purpose it is open for the
Chief Secretary to either conduct the
inquiry himself or form a three member
committee of responsible senior officers of
which one should be of the rank of
Principal Secretary to hold the said inquiry.

27. Let an inquiry report be submitted
to the Senior Registrar of this Court within
three months from today.

28. This case shall be listed for the
said purpose alone on 25.04.2023 before
the appropriate Court.

29. Let a copy of the order be sent by
the Office to the Chief Secretary of the
State within 10 days.
----------
(2023) 2 ILRA 290
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2023

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE JAYANT BANERJI, J.

Writ-C No. 16538 of 2018

Shyam Narayan Ram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan (Sr. Advocate), Sri
Udyaan
Nandan,
Sri
Kamlesh
Kumar
Tripathi

Counsel for the Respondents:
Sri
M.C.
Chaturvedi,
Addl.
Advocate
General, Sri Vineet Pandey, Chief Standing
Counsel, Sri Sudhanshu Srivastava, Addl.
Chief Standing Counsel, Sri Saiful Islam
Siddiqui

A. Local body - Constitution of India -
Article 243-B - U.P. (Kshetra Panchayats
and Zila Panchayats) Adhiniyam 1961 -
Section 15 - Kshettra Panchayat - No
Confidence Motion - Oath of office could
not be taken by the members - Effect on
membership - Held, such an elected
member will not cease to be elected
member nor his seat would be deemed to
be vacant - The elected members do not
cease
to
hold
their
office
for
not
subscribing to the oath of office. (Para 23
and 31)

B. Local body - U.P. (Kshetra Panchayats
and Zila Panchayats) Adhiniyam 1961 -
Elected members - Meaning - Elected
members are those who are chosen by
direct
election
from
territorial
constituencies in the Panchayat area.
(Para 31)

C. Local body - U.P. (Kshetra Panchayats
and Zila Panchayats) Adhiniyam 1961 -
Section 15 - Kshettra Panchayat - No
subscription of oath of office by the
members - Entitlement of such members
to sign no confidence motion and vote in
the meeting for no confidence motion -
Held, A meeting held for considering
motion of no confidence is a special
meeting with specific purpose and is
distinct from a meeting of a Kshettra
Panchayat held for transacting its ordinary
business. An elected member even if has
not subscribed to oath is entitled to
participate in a meeting of no confidence,
although
would
not
be
entitled
to
participate
in
the
meeting
held
for
transacting the ordinary business of the
Kshettra Panchayat. (Para 40 and 42)

D. Lacuna in legislation - How to be
dealt
with
-
The
legislative
casus
omissus cannot be supplied by process
of judicial interpretation - High Court
hoped that necessary corrective steps
will be taken without further delay.
(Para 26 and 30)