# M/s Gauri Shankar Singh v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 1149
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-18
- **Case number:** Writ-C No. 12041 of 2020
- **Bench:** Salil Kumar Rai, Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-gauri-shankar-singh-v-state-of-u-p-ors-49308
- **Pages:** 6

## Headnote

Law
-
U.P.
Minor
Mineral
(Concession) Rules, 1963 - Rule 58 -
Mines and Minerals (Development and
Regulation) Act, 1957 - Section 15(3) -
Mining Lease Cancellation - Royalty -
Security Forfeiture - Natural Justice
The petitioner, M/s Gauri Shankar Singh,
challenged the cancellation of its sand mining
lease, forfeiture of security money, and recovery
of royalty arrears, ordered by the District
Magistrate on 01.02.2019, upheld by the
Appellate Court (15.11.2019) and Revisional
Court
(03.03.2020).
The
petitioner
faced
impediments due to mud covering the mining
area post-monsoon, reported on 24.10.2018,
prompting an inspection ordered on 03.12.2018.

Held: (1) The writ petition was allowed,
quashing
the
orders
dated
01.02.2019,
15.11.2019, 03.03.2020, and the recovery
certificate dated 20.03.2020. (2) The District
Magistrate acted in haste, cancelling the lease
within 15 days of the notice issued on
16.01.2019, violating Rule 58's mandatory 30day notice period. (3) The District Magistrate
failed
to
consider
the
inspection
report
(25.02.2019), confirming mud coverage, before
cancelling the lease. (4) The Appellate and
Revisional Courts erred in not considering the
inspection report, which showed no sand was
available, negating royalty liability under Section
15(3) of the MMDR Act, 1957, as per Vipul Tyagi
Vs St. of U.P.. (5) Royalty cannot be charged for
periods when minerals were not removable, per
M/s. Planet Steel Pvt. Ltd. Vs St. of Haryana. (6)
Any recovered amount was ordered to be
returned to the petitioner.

Case Law Cited:

## Text

10 All. M/s Gauri Shankar Singh Vs. State of U.P. & Ors..
1149

(p) orders in interpleader-suits
under Rule 3, Rule 4 or Rule 6 of Order
XXXV;

(q) an order under Rule 2, Rule 3 or
Rule 6 of Order XXXVIII ;

(r) an order under Rule 1, Rule 2, [Rule
2-A], Rule 4 or Rule 10 of Order XXXIX;

(s) an order under Rule 1 or Rule 4 of
Order XL

(t) an order of refusal under Rule 19 of
Order XLI to readmit, or under Rule 21 of Order
XLI to rehear, an appeal;

(u) an order under Rule 23 [or Rule 23A] of Order XLI remanding a case, where an
appeal would lie from the decree of the Appellate
Court ;

(v) [***]

(w) an order under Rule 4 of Order
XLVII granting an application for review."

18. The power to grant interim order or
temporary injunction is provided under the Order
39 of CPC. Under this Order, the Court can grant
the interim order/injunction and the Court can also
grant an ex-parte interim order/temporary
injunction and an order for injunction can be
discharge, varied or set aside by the Court.
Refereable Rules are Rule 1, Rule 2, Rule 3 and
Rule 4 of Order 39 of CPC. The Court under this
Order can also punish for disobedience/breach of
injunction as appears from Rule 2A. A conjoint
reading of Order 43 Rule 1(r) and referred Rules
of Order 39 of CPC, indicates that the order
passed under Rule 1, Rule 2, Rule 2 or Rule 4 of
Order 39 of CPC is appellable.

19. In the instant case, the interim order was
passed ex-parte on 08.03.2022 and an application
dated 21.03.2022 preferred by the opposite party
No.3, the same was recalled. As such, the order
dated 06.02.2023 would fall under Rule 4 of
Order 39 of the C.P.C. Thus, to the view of this
Court, the appeal under Section 207 of the Code
of 2006 would lie against the order dated
06.02.2023.

20. For the aforesaid reason, the order dated
20.03.2023 passed by the revisional authorityAdditional
Commissioner
(Administration),
Ayodhya Region, Ayodhya in a revision filed
under Section 210 of the Code of 2006 by the
petitioner, whereby the revision filed by the
petitioner was dismissed after observing that the
revision is not maintainable, is just and proper and
is not liable to be interfered with.

21. For the aforesaid reasons, this
Court is not inclined to entertain the
present petition challenging the impugned
orders dated 06.02.2023 and 20.03.2023.
Accordingly, it is disposed of with liberty
to the petitioner to file an appeal under
Section 207 of the Code of 2006
challenging the order dated 06.02.2023.
----------
(2023) 10 ILRA 1149
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Writ-C No. 12041 of 2020

M/s Gauri Shankar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amit Upadhyay, Sri Mukesh Prasad (Sr
.Adv.)
1150 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C.

Civil
Law
-
U.P.
Minor
Mineral
(Concession) Rules, 1963 - Rule 58 -
Mines and Minerals (Development and
Regulation) Act, 1957 - Section 15(3) -
Mining Lease Cancellation - Royalty -
Security Forfeiture - Natural Justice
The petitioner, M/s Gauri Shankar Singh,
challenged the cancellation of its sand mining
lease, forfeiture of security money, and recovery
of royalty arrears, ordered by the District
Magistrate on 01.02.2019, upheld by the
Appellate Court (15.11.2019) and Revisional
Court
(03.03.2020).
The
petitioner
faced
impediments due to mud covering the mining
area post-monsoon, reported on 24.10.2018,
prompting an inspection ordered on 03.12.2018.

Held: (1) The writ petition was allowed,
quashing
the
orders
dated
01.02.2019,
15.11.2019, 03.03.2020, and the recovery
certificate dated 20.03.2020. (2) The District
Magistrate acted in haste, cancelling the lease
within 15 days of the notice issued on
16.01.2019, violating Rule 58's mandatory 30day notice period. (3) The District Magistrate
failed
to
consider
the
inspection
report
(25.02.2019), confirming mud coverage, before
cancelling the lease. (4) The Appellate and
Revisional Courts erred in not considering the
inspection report, which showed no sand was
available, negating royalty liability under Section
15(3) of the MMDR Act, 1957, as per Vipul Tyagi
Vs St. of U.P.. (5) Royalty cannot be charged for
periods when minerals were not removable, per
M/s. Planet Steel Pvt. Ltd. Vs St. of Haryana. (6)
Any recovered amount was ordered to be
returned to the petitioner.

Case Law Cited:

1. Vipul Tyagi Vs St. of U.P. & ors., Writ-C No.
17258 of 2020 (Allahabad HC, 11.01.2021);

2. M/s. Planet Steel Pvt. Ltd. Vs The St. of Har.
& ors., (SC, 10.04.2018).

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard learned counsel for the
parties.

2. Upon an agreement having been
signed between the petitioner and the
respondents on 03.04.2018, the petitioner
was granted a lease for excavating sand
from 03.04.2018 to 02.04.2023. The
petitioner in pursuance of the lease
deposited
the
Security
money
of
Rs.33,87,500/-. He also deposited the
royalty for the period beginning on
03.4.2018 and ending on 30.6.2018.
Thereafter, the rainy season intervened
with effect from 01.07.2018 and the
petitioner refrained from mining till the
30.09.2018. The mining work was to
commence from 01.10.2018 and when the
petitioner started off with the mining from
the land in question, he found that because
of the inundation by the river Ghaghra, the
entire area was covered by mud. He,
therefore, informed the District Magistrate
about the impediment in the mining on
24.10.2018. The petitioner hoped that the
District Magistrate could get an inspection
done as to whether the land on which the
lease was granted for mining had sand only
or whether the area was covered by mud as
had been alleged by the petitioner in his
application dated 24.10.2018.

3. In pursuance of the application of
the petitioner, on 03.12.2018 an inspection
was ordered by the District Magistrate,
Gorakhpur.
However,
immediately,
thereafter, on 16.01.2019, a notice was
issued to the petitioner under Rule 58 of the
Uttar Pradesh Minor Mineral (Concession)
Rules, 1963, directing the petitioner to
deposit arrears of installments and royalty
failing which his mining lease could be
cancelled after forfeiting the security. Also
it was provided that the outstanding amount
could be recovered as arrears of land
10 All. M/s Gauri Shankar Singh Vs. State of U.P. & Ors..
1151
revenue. The petitioner did not reply to the
notice as the petitioner had, as per the
petition,
never
received
the
notice.
However, on 01.02.2019 the lease was
canceled and the Security money was
forfeited and certain installments were
ordered to be recovered. This was done
without waiting for the report which was to
be submitted after the inspection which was
ordered on 03.12.2018. Aggrieved thereof
the petitioner filed an appeal.

4. Before the appellate Court it was
vehemently argued by the petitioner that in
pursuance of the report asked for on
03.12.2018 by the District Magistrate,
Gorakhpur,
a
report
had
in
fact
subsequently been submitted on 25.02.2019
and that report could not be considered at
the time of the passing of the order dated
01.02.2019 as it was passed in hot haste
and in contravention of the Rule 58 of the
1963 Rules which contemplates that before
passing the order for termination of the
lease, the District Magistrate should at least
wait for 30 days. In fact it had been argued
that the show cause notice itself had to
contemplate that payment of arrears had to
be made within 30 days of the notice. He
had argued that the report regarding the
mine having other minerals was in fact
submitted on 25.02.2019. The Appellate
Court on 15.11.2019 though had dismissed
the appeal, remanded the matter for readjudication and directed the District
Magistrate, Gorakhpur to reconsider
the
case
after
looking
into
the
inspection report dated 25.02.2019.
Since the appeal had been dismissed
in so many words, the petitioner
instead of pursuing the matter before
the District Magistrate filed a revision
and when the revision was dismissed
on
03.03.2020,
the
instant
writ
petition was filed.

5. The Revisional Court, however,
modified
the
order
of
the
District
Magistrate, Gorakhpur and instead of
confiscating the Security money, permitted
the adjustment of the royalty from the
Security money.

6. Learned counsel for the petitioner
while assailing the impugned orders
submitted as under:-

i. The petitioner, when had
commenced with the mining on 01.10.2018
and had found that the mining area was
covered by mud, had reported the matter to
the District Magistrate, Gorakhpur on
24.10.2018 and, thereafter, the District
Magistrate had also asked for a report on
03.12.2018 and when the report was
submitted on 25.02.2019, it was clearly
found that there was more mud than sand at
the mining site.

ii. Learned counsel for the
petitioner further submits that when the
report as per the direction dated 03.12.2018
was awaited, the lease could not have been
cancelled on 01.02.2019 and definitely no
confiscating of security could have been
ordered.

iii. He further submits that the
Appellate Court also erred in law while
remanding the matter as it had dismissed
the Appeal.

iv. Learned counsel for the
petitioner submits that the Revisional Court
did not consider any of the points as were
raised by the petitioner. He submits that the
Revisional Court did not consider the
report dated 25.02.2019 which had stated
that in fact the mining area was covered by
mud and, therefore, the mineral 'sand' was
hardly available.
1152 INDIAN LAW REPORTS ALLAHABAD SERIES

v. Learned counsel for the
petitioner relying upon the judgement of
this Court dated 11.01.2021 passed in WritC No.17258 of 2020 (Vipul Tyagi vs. State
of U.P. And 6 Others) has submitted that as
per Section 15(3) of the Mines & Minerals
(Regulation & Development) Act, 1957,
royalty for such period in which the
Mineral from the Mines was not
removed could not be charged. Since
the learned counsel for the petitioner
relied upon the Section 15(3) of the
1963 Act is being reproduced here
asunder:-

""[(3) The holder of a mining
lease or any other mineral concession
granted under any rule made under
sub-section (1) shall pay ][royalty or
dead rent, whichever is more], in
respect of minor minerals removed or
consumed by him or by his agent,
manager, employee, contractor or sublessee at the rate prescribed for the
time being in the rules framed by the
State Government in respect of minor
minerals:

Provided
that
the
State
Government shall not enhance the rate
of [royalty or dead rent] in respect of
any minor mineral for more than once
during any period of [three years]." "

vi. Learned counsel for the
petitioner
further
relied
upon
the
decision of the Supreme Court in the
case of M/s. Planet Steel Pvt. Ltd. Vs.
The State of Haryana and Ors., decided
on 10.04.2018 and submitted that the
royalty could be charged only for the
mineral as was available at the mining
site. Learned counsel for the petitioner
states that since the mining area was
covered by mud, sand could not have been
excavated at all.

vii. Learned counsel for the
petitioner states that if Rule 58 of the U.P.
Minor Mineral (Concession) Rule is seen
then it becomes obvious that the District
Magistrate
after
issuing
notice
on
16.01.2019 ought to have waited for at
least 30 days before passing the order,
which was passed on 01.02.2019, i.e.
only after about 15 days.

7. Since learned counsel had relied
immensely on Rule 58 of the Uttar
Pradesh Minor Mineral (Concession)
Rules, 1963 the same is being reproduced
here asunder:-

"[58. Consequences of nonpayment of royalty rent or other dues. -
(1) The State Government or any officer
authorised by it in this behalf may
terminate the mining lease after serving a
notice on the lessee to pay within thirty
days of the receipt of the notice any
amount due or dead 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.

(2) Without prejudice to the
provisions of these rules, simple, interest
at the rate of 18 per cent per annum may
be
charged
on
any
rent,
royalty,
demarcation fee and any other dues under
these rules, due to the State Government
after the expiry of the period of notice
under sub-rule (1). "
10 All. M/s Gauri Shankar Singh Vs. State of U.P. & Ors..
1153

8.

Learned
Standing
Counsel,
however, in reply submitted that when the
petitioner did not mine on his own after
01.10.2018 then there was no other option
left with the respondents but to cancel the
lease and order for recovery of the
outstanding installments and the royalty.

9. Learned Standing Counsel further
submitted that when the report as was
submitted on 25.02.2019 came to the notice
of the District Magistrate after the lease
was canceled, the District Magistrate was
under no obligation to consider the same.

10. Having heard the learned Senior
Counsel Sri Mukesh Prasad assisted by Sri
Amit Upadhyay, Advocate and the learned
Standing Counsel Sri Anubhav Chandra,
we are of the view that the orders
impugned cannot be sustained in the eyes
of law; the petitioner was granted a lease
on 03.04.2018 for a period commencing
from
03.04.2018
and
ending
on
02.03.2023. The petitioner had commenced
work on 03.04.2018 and had stopped the
work on 30.06.2018 because of the
monsoon season. When he commenced
work on 01.10.2018, he discovered that
there was hardly any sand available in the
mining area in question because of the
inundation of the river and, therefore, he
reported his grievance on 24.10.2018 to the
District Magistrate, who in his turn had
ordered an inspection of the area on
03.12.2018. Definitely when a report was
asked for on 03.12.2018 by the District
Magistrate then he ought to have waited for
the report and he should not have hurriedly
issued the notice on 16.01.2019 and,
thereafter, should not have canceled the
lease on 01.02.2019. Also we filed that the
report in fact was submitted on 25.02.2019
but the District Magistrate had already,
without waiting for it, hurriedly passed the
order on 1.2.2019.

11. Still further we find that under
Rule 58 of the U.P. Minor Mineral
(Concession) Rule, 1963 after the issuing
of notice on 16.1.2019, the District
Magistrate ought to have waited for a
period of 30 days and, thereafter, should
have canceled the lease. Having not done
so, we find that the District Magistrate,
Gorakhpur definitely acted in hot haste. He
did not wait for the report as he had asked
for by his own order dated 03.12.2018 and
also did not wait for the statutory period of
30 days after the issuing of the notice. Also
we find that the Appellate Court and the
Revisional Court which ought to have
considered the report dated 25.2.2019 did
not consider the same and dismissed the
appeal and the revision wrongly. We do
find that as per the judgement and order
dated 11.01.2021 passed in writ petition
being Writ-C No.17258 of 2020 (Vipul
Tyagi vs. State of U.P. And 6 Others)
royalty was chargeable only for the period
for which minerals were removed by the
petitioner.

12. Under such circumstances, the
order of the District Magistrate, Gorakhpur
dated
01.02.2019,
the
order
of
the
Appellate Court dated 15.11.2019 and the
order of the Revisioinal Court dated
03.03.2020 are quashed. The consequential
recovery certificate dated 20.03.2020 is
also quashed and is set aside.

13. Since we have quashed the
impugned order and also the order of
recovery
initiated
by
the
District
Magistrate, Gorakhpur we direct that any
amount recovered from the the petitioner
be also returned to the petitioner.
1154 INDIAN LAW REPORTS ALLAHABAD SERIES

14.

With
these
observations,
accordingly, the writ petition is allowed.

----------
(2023) 10 ILRA 1154
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2023

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Writ-C No. 12304 of 2021

Meena Jaiswal ...Petitioner
Versus
Indian Oil Corp. Ltd., Varanasi
 ...Respondent

Counsel for the Petitioner:
Sri Vinayak Mithal

Counsel for the Respondent:
Sri Pramod Kumar Rai

Civil Law -Specific Relief Act, 1963 -
Section 26 - Indian Oil Corporation
Guidelines for Selection of Dealers -
Clause 4(v), Clause 14E(ix) and (x) -
Rectification
Deed
-
Retail
Outlet
Dealership - Eligibility Criteria - Natural
Justice
The petitioner, Meena Jaiswal, challenged the
Indian Oil Corporation's order dated 30.03.2021,
rejecting her candidature for a retail outlet
dealership under the OBC category due to
incorrect land dimensions in the lease deed,
despite a rectification deed dated 01.02.2019
correcting the error.

Held: (1) The writ petition was allowed, and the
impugned order dated 30.03.2021 was quashed.
(2) The rectification deed, correcting minor
dimensional errors in the lease deed dated
24.12.2018 without altering the land's identity,
boundaries, or area, related back to the original
lease deed's date under Section 26 of the Specific
Relief Act, 1963. (3) The respondent-Corporation
erred in rejecting the petitioner's candidature under
Group 1, as the Guidelines permit rectification of
curable
deficiencies,
including
post-application
amendments like sub-lease provisions, under
Clauses 4(v)(b) and 14E(ix) and (x). (4) The
petitioner's initial application correctly St.d the
required dimensions (35m x 35m), and the
rectification deed, submitted before field verification,
complied with the Guidelines. (5) The Corporation's
failure to consider the rectification deed and provide
a hearing violated natural justice. (6) The
respondent-Corporation was directed to proceed
with field verification of the petitioner's credentials
within six weeks and finalize the dealership process
per the Guidelines.

(Delivered by Hon'ble Manoj Kumar Gupta,
J.)

FACTS :

1. An advertisement was issued on
25.11.2018, by the Indian Oil Corporation
Limited, inviting applications for appointment
of retail outlet dealers in various districts of
Uttar Pradesh. The dispute in the instant case
relates to the retail outlet dealership between
Km. Stone 18 to 23 on State Highway (SH)
87, Varanasi, Bhadohi Road (Sl. No. 1023),
reserved for OBC Category. The application
was to be submitted online on the website
www.petrolpumpdealerchayan.in. The last
date for submission of the application form
along
with
non-refundable
fee
was
24.12.2018.

2. The petitioner submitted online
application for the said dealership on
24.12.2018 along with requisite fee under
OBC Category.

3. The petitioner offered land of
Gata no. 667, Village Gaurai, Pargana
Kaswar, Tehsil Raja Talab, District
Varanasi, admeasuring 1328.99 sq. meters,
located between Km. Stone 18 to 23 on
State Highway (SH) 87, Varanasi, Bhadohi
Road, as required in terms of the