Allowed

M/S Ismita Enterprises v. State of U.P. and 3 Others

Allahabad HC19 Feb 2020WRIC/23518/2019

Case brief

AI extract

What is this about?

The Court quashed an order cancelling a mining lease, forfeiting security money, and blacklisting the petitioner. The order was held void for violating natural justice by imposing penalties not stated in the show-cause notice, and for contravening statutory rules governing lease forfeiture.

What did the court decide?

The impugned order dated 21.06.2019 is quashed. The writ petition is allowed. The petitioner is free to initiate fresh proceedings only after affording an opportunity of personal hearing.

M/S Ismita Enterprises Vs State of U.P… — Pension and Retirement Benefits | Allahabad HC (2020)

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Court No. - 4 Case :- WRIT - C No. - 23518 of 2019 Petitioner :- M/S Ismita Enterprises Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Birendra Singh Counsel for Respondent :- C.S.C.

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Hon'ble Bala Krishna Narayana,J. Hon'ble Shamim Ahmed,J.

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(As per Hon'ble Shamim Ahmed, J.)

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The present writ petition has been filed by the petitioner with the

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following prayer:-

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(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 21.06.2019 passed by respondent no.3, District Magistrate, Prayagraj, (Annexure No.1 to the writ petition).

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(2) Issue a writ, order or direction in the nature of mandamus commanding the respondents, especially respondent no.3, District Magistrate, Prayagraj, to refund the entire amount deposited by petitioner along with 9 % interest from the date of deposit to actual date of payment pursuant to public notice dated 07.09.2017 in respect of Khand No.47 measuring area 4.00 hectares situated in villages Patharpur Kala to Bhagatpur and Tudiyar to Tiwaripur in District Allahabad (now Prayagraj) or in the alternative issue letter of Intent for mining in respect of some other dry area suitable for mining having same quantity of sand, area in lieu of aforesaid mining area.

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(3) Issue any other suitable writ, order or directions, as this Hon'ble Court deems fit and proper in the circumstances of the case.

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(D) Award the cost of the writ petition.

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Heard Sri Birendra Singh, learned counsel for the petitioner and Smt. Archana Singh, learned Additional Chief Standing Counsel representing all the respondents.

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Facts in brief as contained in the writ petition are that as per New Government Policy-2017, a Government order for settlement of lease under Chapter-IV by e-tender/e-auction dated 14.8.2017 was issued and the Uttar Pradesh Miner Minerals (Concession) (43 amendment) Rules, 2017 (hereinafter referred to as "the Amended Rules, 2017") framed

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thereunder. Mining leases were to be granted as per the procedure prescribed under the statutory Rules and the Government Order dated 14.8.2017. In pursuance of the same, an advertisement notice dated 7.9.2017 was issued by the District Magistrate, Prayagraj-respondent no.3 for settlement of mining leases of sand and morrum under the Amended Rules, 2017 in the District Prayagraj for several mining blocks by e-tendering.

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The petitioner after completing necessary formalities, submitted an application for the grant of mining lease for mining area in villagePatharpur Kalan to Bhagatpur and Tudiyar to Tiwaripur in Tehsil Koraon District Prayagraj, river Belan measuring four hectares for a quantity of 40,000/- cubic meters per year. In this regard, the petitioner has given a bid of Rs.227/- per cubic meter against the reserve price of Rs.65/- which being the highest. The same was duly accepted by the District Magistrate, Prayagraj/respondent No.3 and thereafter, a letter of intent dated 30.11.2017 was issued to the petitioner. After issuance of aforesaid letter of intent, he had deposited requisite amount namely security money and first installment of the annual lease amount. Subsequently, a lease deed was executed and registered in favour of the petitioner on 17.01.2018 for a period of five years, i.e., from 17.01.2018 to 16.01.2023.

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It is contended in paragraph 12 of the Writ Petition that after demarcation, when the petitioner entered in his mining area, he found most of the area submerged and only a small portion of the area of about one hectare was dry in which about 7040 cubic meters sand was available for mining. In this regard, he also approached the Senior Mining officer Prayagraj and he informed the petitioner that after rainy season, the situation will improve and the entire mining area will be available for mining.

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In this regard, the petitioner also moved several representations before the Senior Mine Officer, Prayagraj to get the spot inspection of

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the area allocated to the petitioner to verify that area of the petitioner is submerged and to cancel the lease deed and refund the amount deposited by him. It is further contended that after expiry of the rainy season, the petitioner went to his mining area to start mining operation but he found that the situation was the same and only about 25% of the mining area was available for mining. In this background, the petitioner again submitted a representation dated 13.05.2019 addressed to the District Magistrate/Senior Mines Officer, Prayagraj with a request to either issue another letter of intent for mining in respect of some other dry area suitable for mining having same quantity of sand and area in lieu of aforesaid mining lease area in favour of the petitioner or cancel the tender (lease of the petitioner) and refund the entire money deposited by the petitioner copy of the representation dated 13.05.2019 is annexed as Annexure-7 to the writ petition.

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It is further contended in paragraph 21 of the writ petition that surprisingly, instead of taking any action on the representation of the petitioner and making the entire area available to the petitioner for carrying out mining operation, the Senior Mines Officer, Prayagraj (respondent no.4) issued demand notice on 26.04.2019 demanding installments of lease amount without addressing the issue of the petitioner regarding non-availability of the complete mining area allotted to the petitioner.

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It is further contended that respondent No.3/District Magistrate, Prayagraj without inspecting the spot and without considering the representation of the petitioner and giving any show-cause notice or opportunity of personal hearing, passed the impugned order dated 21.06.2019 cancelling the lease of the petitioner forfeiting the security amount and blacklisting the petitioner for a period of two years in exercise of power conferred under Rules 58 and 60 of the U.P. Mines Minerals (Concession) Rules, 1963 (hereinafter referred to as the Rules, 1963) on the ground of non deposition of the installment of the lease

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amount treating the same as the breach of the lease conditions and rules.

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It is contended by Sri Birendra Singh, learned learned counsel for the petitioner that the order impugned passed by the respondent No.3 is arbitrary, unjust, illegal and is against the Rule 58 of U.P. Minor Mineral (Concession) Rules, 1963 (hereinafter referred to as the Rules 1963) and also against the provisions of Clause 19(3) of the Government Order dated 14.08.2017 which does not permit the forfeiture of the security money deposited by the lessee/petitioner and only provides for the realization of the said amount as arrears of land revenue along with the interest prescribed and the same is liable to be set aside by this Hon'ble Court due to the following reason:-

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(i) No opportunity of personal hearing was given to the petitioner before passing the order impugned by which not only the lease of the petitioner was cancelled but also security amount was forfeited.

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(ii) The show cause notice was issued to the petitioner by Senior Mines Officer but the order impugned has been passed by the District Magistrate.

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(iii) Nothing has been stated in the show cause notice regarding blacklisting of the petitioner but by the impugned order, the petitioner was also blacklisted for two years without giving any opportunity of hearing as such the order of blacklisting the petitioner is in complete violation of principles of natural justice.

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(iv) The impugned order has been passed in violation of the Rule 58 of the Rules, 1963 wherein it has been provided that if the lessee will not pay the royalty or dead rent then after giving the notice, the lease shall be determined and the said amount shall be realized as arrears of land revenue along with interest prescribed under sub-rule (2), as such while passing the order under Rule 58 of the Rules, 1963 for cancelling the lease deed, security amount deposited by lessee could not be forfeited. The impugned order is also in violation of the Clause 19(3) of the Government Order dated 14.08.2017 which does not provide forfeiture of the security amount on the ground of non deposition of the lease amount.

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Learned counsel for the petitioner further contended that identical issue was already decided by this Court in Writ C No.24217 of 2019 (M/S Kamal Kumar Shukla Vs. State of U.P. and 2 Others), vide judgment and order dated 25.07.2019.

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On the other hand, it is contended by Smt.. Archana Singh, learned Additional Chief Standing Counsel, that since terms and conditions contained in the lease deed were violated by the petitioner, therefore, the action was rightly taken by the respondent No.3. It is further contended by her that the order impugned in the present writ petition is absolutely perfect and valid order does not warrant any interference specially under Article 226 of the Constitution of India.

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Heard learned counsel for the parties and perused the record. With the consent of learned counsel for the parties, this writ petition is disposed of finally at the admission stage itself.

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The petitioner has assailed the order dated 21.06.2019 passed by respondent No.3/District Magistrate, Prayagraj by which reply submitted by the petitioner was rejected and the lease deed was cancelled and an order was passed directing the petitioner to deposit a sum of Rs.3,03,22,500/- towards installments of lease amount for first and second year apart from Rs.4,66,500/- towards T.C.S. and Rs.23,32,500/- as contribution to District Mineral Foundation Trust. It was further ordered that otherwise the same will be realized as per the provisions of the Land Revenue Act. Apart from the same, the petitioner was also blacklisted for a period of two years.

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From perusal of the record it is clear that before passing the impugned order no opportunity of hearing was given to the petitioner. It is also clear from perusal of the record that notices were issued by the Senior Mines Officer but the impugned order was passed by the respondent No.3, i.e. District Magistrate Prayagraj. Apart from the same, it is also clear that although nothing is contained in the show cause notice regarding factum of blacklisting of the petitioner or

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forfeiting the security amount, but while passing the order impugned, the petitioner was blacklisted for a period of two years, and the security amount deposited by him was also forfeited.

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The order impugned is in three parts:-

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(i) recovery against the petitioner and cancelling the lease deed.

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(ii) blacklisting of the petitioner for two years.

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(iii) Forfeiting the security amount deposited by the petitioner.

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Insofar as the first part is concerned, it is clear from the record that the notices were issued to the petitioner by the Senior Mines Officer, Prayagraj but the order was passed by District Magistrate Prayagraj, in this view of the matter, we are of the opinion that the order passed by the District Magistrate Prayagraj is complete in violation of principles of natural justice.

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Insofar as the blacklisting of the petitioner and regarding forfeiting the security amount deposited by the petitioner is concerned, from perusal of the impugned order, we find that the respondents have proceeded on the basis of a show cause notice. Nothing has been stated in the show cause notice regarding blacklisting of the petitioner nor anything has been stated regarding forfeiting the security money deposited by the petitioner. Learned Standing Counsel has not been able to refute this fact on record. In our opinion, the issue which was not raised even in the show cause notice, therefore, could not be made the basis for blacklisting of the petitioner and forfeiting the security money deposited by the petitioner.

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In our view, as per Rule 58 of the Rules, 1963 and Clause 19(3) of the Government Order dated 14.08.2017 which clearly says that if the lessee will not pay the royalty or dead rent then after giving the notice the lease shall be determined and the said amount shall be realized as arrears of land revenue along with interest prescribed under sub-rule (2), as such while passing the order under Rule 58 of the Rules 1963 for

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cancellation of lease deed, security amount deposited by the lessee/petitioner could not be forfeited. In this regard, Rule 58 of the Rules 1963 is being quoted below :-

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Consequences of non payment of royalty rent or other dues;

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(1) The State Government or any officer authorized by it in this behalf may determine 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 realize such dues form the lessee as arrears of land revenue.

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(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).

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Similarly as per the Government Order dated 14.08.2017 the consequence of non deposit of the lease amount/royalty in time by the lessee has been clearly provided in Clause 19(3) which clearly says that if the lease amount will be not deposited by the lessee within time then same shall be recovered along with the interest as provided under the Rules 1963 and the forfeiture of the security money has not been permitted in the said Government Order on the ground of non deposition the lease amount.

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It is further observed that in the impugned order, the District Magistrate, Kaushambi has treated the non deposit of the royalty / lease amount in time as violation of the condition of the lease deed and rule by the petitioner which is absolutely baseless as consequences of the non deposition of the lease amount/royalty in time has been provided under Rule 58 of the Rules 1963 and Clause 19(3) of the Government Order dated 14.08.2017 which does not permit the forfeiture of

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the security money deposited by the lessee/petitioner and only provided the realization of the said amount as arrears of the land revenue along with the interest prescribed. Security amount deposited by the petitioner was liable to be adjusted towards the dues/liability fixed upon the petitioner after the cancellation of the lease deed vide order dated 21.06.2019.

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The central issue, however, pertains to the requirement of stating the action which is proposed to be taken. The fundamental purpose behind the serving of show cause notice is to make the noticee understand the precise case set up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same. Another requirement, according to us, is the nature of action which is proposed to be taken for such a breach. That should also be stated so that the notice is able to point out that proposed action is not warranted in the given case, even if the defaults/ breaches complained of are not satisfactorily explained. When it comes to black listing, this requirement becomes all the more imperative, having regard to the fact that it is harshest possible action. In the case of Gorkha Security Services Vs. Government (NCT of Delhi) and others (2014) 9 SCC 105, the Supreme Court was pleased to hold that it is incumbent on the part of the department to state in show cause notice that the competent authority intended to impose such a penalty of blacklisting, so as to provide adequate and meaningful opportunity to show cause against the same. Relevant paragraph namely paragraph 27 of the aforesaid judgement is quoted below:-

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"27. We are, therefore, of the opinion that it was incumbent on the part of the Department to state in the show cause notice that the competent authority intended to impose such a penalty of blacklisting, so as to provide adequate and meaningful opportunity to the appellant to show cause against the same. However, we may also add that even if it is not mentioned specifically but from the reading of the show cause notice, it

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can be clearly inferred that such an action was proposed, that would fulfill this requirement. In the present case, however, reading of the show cause notice does not suggest that notice could find out that such an action could also be taken. We say so for the reasons that are recorded hereinafter."

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In the case of Erusian Equipment & Chemicals Ltd. Vs. State of West Bengal (1975) 1 SCC 70, it was held by the Supreme Court that blacklisting has the affect of preventing a person from the privilege and advantage of name into relationship with the Government for purpose of aim. It was held by the Supreme Court in the aforesaid case that the fundamentals of fair play require that a person concerned should be given an opportunity to represent his case. Paragraphs 12 and 20 of the said judgment is quoted below :-

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"12. Under Article 298 of the Constitution the executive power of the Union and the State shall extend to the carrying on of any trade and to the acquisition, holding and disposal of property and the making of contracts for any purpose. The State can carry on executive function by making a law or without making a law. The exercise of such powers and functions in trade by the State is subject to Part III of the Constitution. Article 14 speaks of equality before the law and equal protection of the laws. Equality of opportunity should apply to matters of public contracts. The State has the right to trade. The State has there the duty to observe equality. An ordinary individual can choose not to deal with any person. The Government cannot choose to exclude persons by discrimination. The order of blacklisting has the effect of depriving a person of equality of opportunity in the matter of public contract. A person who is on the approved list is unable to enter into advantageous relations with the Government because of the order of blacklisting. A person who has been dealing with the Government in the matter of sale and purchase of materials has a legitimate interest or expectation. When the State acts to the prejudice of a person it has to be supported by legality.

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Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that a disability is created by the order of

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blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist."

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Again in the case of Raghunath Thakur Vs. State of Bihar [(1989) 1 SCC 229] the aforesaid principles was reiterated in the following manner: (SCC p. 230, para 4).

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"4. ........ But it is an implied principle of the rule of law that any order having civil consequence should be passed only after following the principles of natural justice. It has to be realised that blacklisting any person in respect of business ventures has civil consequence for the future business of the person concerned in any event. Even if the rules do not express so, it is an elementary principle of natural justice that parties affected by any order should have right of being heard and making representations against the order. In that view of the matter, the last portion of the order insofar as it directs blacklisting of the appellant in respect of future contracts, cannot be sustained in law.........." 20. Thus, there is no dispute about the requirement of serving showcause notice. We may also hasten to add that once the show-cause notice is given and opportunity to reply to the show-cause notice is afforded, it is not even necessary to give an oral hearing. The High Court has rightly repudiated the appellant's attempt in finding foul with the impugned order on this ground. Such a contention was specifically repelled in Patel Engg. [Patel Engg. Ltd. v. Union of India, (2012) 11 SCC 257 : (2013) 1 SCC (Civ) 445]."

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In the case of M/s Mahabir Auto Stores & Ors. Vs. Indian Oil Corporation Ltd. (1990) 3 SCC 752 it was held by the Supreme Court that arbitrariness and discrimination in every matter is subject to judicial review. Paragraph 11 of the aforesaid judgement is quoted below :-

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"It is well settled that every action of the State or an instrumentality of the State in exercise of its executive power, must be informed by reason. In appropriate cases, actions uninformed by reason may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution. Reliance in this connection may be placed on the

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observations of this Court in M/s Radha Krishna Agarwal & Ors. v. State of Bihar & Ors., [1977] 3 SCC 457.1t appears to us, at the outset, that in the facts and circumstances of the case, the respondent-company IOC is an organ of the State or an instrumentality of the State as contemplated under Article 12 of the Constitution. The State acts in its executive power under Article 298 of the Constitution in entering or not entering in contracts with individual par- ties. Article 14 of the Constitution would be applicable to those exercises of power. Therefore, the action of State organ under Article 14 can be checked. M/s Radha Krishna Agarwal v. State of Bihar, (supra) at p. 462, but Article 14 of the Constitution cannot and has not been construed as a charter for judicial review of State action after the contract has been entered into, to call upon the State to account for its actions in its manifold activities by stating reasons for such actions. In a situation of this nature certain activities of the respondent company which constituted State under Article 12 of the Constitution may be in certain circumstances subject to Article 14 of the Constitution in entering or not entering into contracts and must be reasonable and taken only upon lawful and relevant consideration, it depends upon facts and circumstances of a particular transaction whether heating is necessary and reasons have to be stated. In case any right conferred on the citizens which is sought to be interfered, such action is subject to Article 14 of the Constitution, and must be reasonable and can be taken only upon lawful and relevant grounds of public interest. Where there is arbitrariness in State action of this type of entering or not entering into contracts, Article 14 springs up and judicial review strikes such an action down. Every action of the(1975) 1 SCC 70. State executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, in such monopoly or semi-monopoly dealings, it should meet the test of Article 14 of the Constitution. If a Governmental action even in the matters of entering or not entering into contracts, fails to satisfy the test of reasonableness, the same would be unrea- sonable. In this connection reference may be made to E.P. Royappa v. State of Tamil Nadu & Anr., [1974] 4 SCC 3; Maneka Gandhi v. Union of India & Anr., [1976] 1 SCC 248; Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors., [1981] 1 SCC 722; R.D. Shetry v. International Airport Authority of India &

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Ors., [1979] 3 SCC 1 and also Dwarkadas Marlaria and sons v. Board of Trustees of the Port of Bombay, [1989] 3 SCC 293. It appears to us that rule of reason and rule against arbitrariness and discrimination, rules of fair play and natural justice are part of the rule of law applicable in situation or action by State instrumentality in dealing with citizens in a situation like the present one. Even though the rights of the citizens are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play, natural justice, equality and nondiscrimination in the type of the transactions and nature of the dealing as in the present case."

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In view of the law laid down by the Hon'ble Apex Court and the case narrated by the learned counsel for the petitioner, we consider it fit to interfere in the impugned order on the ground that there is a complete violation to follow due process of law and the impugned order was passed in violation of the principles of natural justice, therefore, the impugned order dated 21.06.2019 passed by respondent no.3-District Magistrate, Prayagraj is not sustainable in the eyes of law and is liable to be quashed.

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We, accordingly, quash the impugned order dated 21.06.2019 passed by respondent no.-District Magistrate, Prayagraj and allow the present writ petition. We further clarify that in case the respondents do choose to initiate fresh proceedings against the petitioner, we leave it open to them to do so subject to the observation that the proceedings if initiated shall be undertaken in accordance with law and the observations appearing herein above after affording opportunity of personal hearing to the petitioner.

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Order Date :- 19.02.2020 SFH/P.S. Parihar

M/S Ismita Enterprises v. State of U.P. and 3 Others

Case brief

What is this about?

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M/S Ismita Enterprises v. State of U.P. and 3 Others

Case brief

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