Mahendra Singh v. State of U. P — 1988 DIGILAW 1003 (ALL)

JUDGMENT S.K. Dhaon, J. - This and the companion writ petition No. 6644 of 1986 relate to the grant of a lease under the U.P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as the Rules) to excavate Morrum/sand in Tehsil of Hamirpur. In both the petitions, the legality of the same order dated 19th May, 1986, purported to have been passed by the Mines Tribunal, Union of India, Ministry of Steel and Mines, New Delhi (hereinafter referred to as the Mines Tribunal) under S. 30 of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as the Act) his being impugned. Hence the two petitions Here heard together and are being disposed of by a common judgment. In the instant petition the petitioner was granted a permit/lease by the State Government some time in 1979 for a period of six years. A lease deed was duly executed The term of this deed expired on 18th March, 1985. The petitioner asserted that he had been given an understanding that the period of lease deed would be really ten years. However, in the 1 deed a period of six years was mentioned and accepted by the petitioner on a clear understanding that the term will be extended to ten years after seeing his performance. A series of representations were made by the petitioner to the State Government. The last j was made on 17th January, 1985. This was rejected on 24th October 1985. On 19th May, 1986, the Mines Tribunal rejected the revision of the petitioner under section 30 of the Act. Hence a prayer too has been made for quashing the order dated 24th October, 1985, 1975; but the lease deed could not be based by the State Government. executed. On 9th January, 1976, the District 2. In the instant petition, the U.P. State Officer informed the petitioner that on Mineral Development Corporation account of an interim order of this Court in (hereinafter referred to as the Corporation) respect of minor mineral area of Kanauta and Nishad Balu Machhya Shramik Kalyan Block of Tehsil Hamirpur and in view of the Samiti (hereinafter referred to as the Samiti) fact that the State Government had already executed a lease of certain scattered minor the petitioners in the companion writ petition, have been impleaded as respondents Nos. 6 and 7 respectively upon applications made by them. 3. 6 and 7 respectively upon applications made by them. 3. In Writ Petition No. 6644 of 1986 the case set up by the petitioner is that it being a co-operative society it is entitled to be given a preferential treatment in the matter of grant of permit/lease for excavating sand in Tehsil Hamirpur as enjoined by sub-rule (3) of Rule 9 of the Rules., Initially it confined its prayer to the quashing of an order passed by the Mines Tribunal rejecting its application for being impleaded as one of the opposite parties in the revision preferred by Sri Mahendra Singh, the petitioner in Writ Petition No. 5%7 of 1986. A supplementary affidavit has been filed and a prayer has been made that the direction of the Mines Tribunal that the permit/lease should be given either to a public Sector Corporation or by open auction may be quashed. 4. Neither of the two petitions have been admitted as yet, affidavits have been exchanged between the parties and, therefore, with the consent of the learned counsel for the parties we heard them with a view to dispose them of finally and we are doing so. 5. In this petition the material averments are these. In January, 1975, the District Officer Hamirpur, made an attempt to lease minor mineral areas of the Tehsil of Hamirpur by means of a public auction. Then the process of negotiation started By its letter dated 5th December, 1975, the State Government accepted the offer made by the petitioner for leasing out the entire minor mineral area of Tehsil of Hamirpur for period of two years on payment of an annual royalty of Rs. 2,50,000/-. In pursuance of this letter, the petitioner deposited a sum of Rs. 1,25,000/- with the District Officer on 22nd December mineral areas of Tehsil Hamirpur in favour of the Bundelkhand Development Corporation, no lease deed in favour of the petitioner could be executed. The petitioner protested, but also agreed to the execution of a lease deed of an area minus the areas aforementioned; provided the term of the lease was extended from two years to five years. The District Officer, on 19th January, 1976, accepted the terms proposed by the petitioner. The petitioner protested, but also agreed to the execution of a lease deed of an area minus the areas aforementioned; provided the term of the lease was extended from two years to five years. The District Officer, on 19th January, 1976, accepted the terms proposed by the petitioner. However, the District Officer made it clear that initially the lease would be for a period of two years and after obtaining the formal approval of the State Government necessary changes incorporating a period of five years would be made in the lease deed. On 24th March, 1976, the District Officer sent a communication to the State Government to the effect that the period of the lease should be four years. This period had been mentioned due to an inadvertence. On 21st April, 1976, the State Government advised the District Officer to watch the performance of the petitioner for a period of one year and thereafter the question of the term of the lease being extended could be considered. On 20th February, 1978. the District Officer informed the petitioner that the period of the lease had come to an end and he should stop the quarrying operations. The revision preferred by the petitioner against the said communication/order was rejected as not maintainable. Feeling aggrieved, the petitioner preferred a Special Leave Petns. (Civil) Nos. 2945-2946 of 1978 before the Supreme Court. On 6th November, 1978, the petition was dismissed in the following words :- "The petition is dismissed. We are at a loss to know why the Government is not standing by what is said by the authorities in the letter dated 19th Jan. 1176 and 21st April. 1976. The petitioner shall be at liberty to take appropriate action in this matter. Stay order granted by this Court is vacated" 6. Armed with the aforequoted order, the petitioner saw the then Chief Minister of Uttar Pradesh (Sri Ram Naresh Yadav) who agreed to grant a mining lease to the petitioner for a period of ten years at the rate of Rs. 10,55,000/- per annum. Sri Yadav directed the petitioner to submit the terms of, the agreement in writing. This was done by the petitioner on 18th December, 1978. On 21st February, 1979, the State Government sent a communication to the District Officer to grant a mining lease to the petitioner for a period of six years. 10,55,000/- per annum. Sri Yadav directed the petitioner to submit the terms of, the agreement in writing. This was done by the petitioner on 18th December, 1978. On 21st February, 1979, the State Government sent a communication to the District Officer to grant a mining lease to the petitioner for a period of six years. On 23rd February, 1979, in pursuance of the said direction of the State Government a sum of Rs. 1,77,398/- was deposited by the petitioner, but under protest. On a protest being lodged by the petitioner, Sri Ram Naresh Yadav gave an assurance I that the period of the lease would be extended to ten years but after watching the performance of the petitioner. Acting on the assurance, the petitioner submitted a draft lease deed in the prescribed MM-III form to the District Officer. The petitioner submitted an undertaking, an application and also an affidavit "in terrorem". On 19th June, 1979, the Central Government dismissed the revision application of one M/s. Bal Kishan and Company wherein the order passed in 1979 for leasing out the minor mineral areas to the petitioner had been challenged. Undaunted, M/s. Bal Kishan and Company' preferred a writ petition in the Delhi High Court being Civil Misc. Writ Petn. No. 1186 of 1979. On l8th March, 1981, the Delhi High Court allowed the writ petition and directed the Central Government to decide the revision application of M/s. Bal Kishan and Company afresh. On 20th September, 1982, the Central Government again dismissed the revision application. The lease deed having not been executed in spite of several representations, the petitioner sent the last representation on 17th January, 1985. On 8th March, 1985, the petitioner was informed by the Officers of the State Government that in view of sub- rule (3) of Rule 9 of the Rules as amended, mining lease shall be given to the Co-operative Societies of Kewats and, therefore, the question of passing any order on the representation of the petitioner did not arise. On 31st January, 1985. the State Government issued a direction to the District Officer to grant mining lease to the Co-operative Societies of Kewats and others. Faced with that situation, the petitioner preferred a Writ Petn. No. 1112 of 1985 before this Court at Lucknow. On 31st January, 1985. the State Government issued a direction to the District Officer to grant mining lease to the Co-operative Societies of Kewats and others. Faced with that situation, the petitioner preferred a Writ Petn. No. 1112 of 1985 before this Court at Lucknow. On 21st March, 1985, this Court granted an interim order, inter alia, to the effect that till 12th April, 1985, or till such time as the lease is granted in terms of sub-rule (3) of Rule 9 in favour of Co-operative Societies, whichever is earlier, the petitioner shall be permitted to carry on mining operations in the area in question on the same terms and conditions on which he was granted the lease. The State Government may dispose of the representation of the petitioner in the meantime. This interim order was extended from time to time. The Minister of State for Industries in the Government of Uttar Pradesh (hereinafter referred to as the Minister) called the petitioner and on 6th June, 1985, made an offer that the lease would be extended for a period of four y ears subject to the condition that the petitioner will enhance the royalty as at the rate of 15% per annum and the writ petition No. 1112 of 1985 will be withdrawn. Though the terms offered by the Minister were onerous yet, the petitioner accepted the same with the condition that the writ petition would be withdrawn after the completion of the formalities for extending the period of lease. The Minister agreed to the terms proposed by the petitioner and passed an order in the presence of the petitioner thereby communicating the decision of the State Government to extend the period of lease for four years. Only the formalities remained to be complied with. The officials in the State Government and the District Officer did not complete the formalities regarding the "agreed extension of period of lease". On 22nd June, 1985, the petitioner made an application before the Minister. On 24th June, 1985 1st July, 1985, the Minister passed an order directing the Department to complete all the formalities relating to the "agreed extension of the period of lease in favour of the petitioner". The Minister, on 6th September 1985, again passed a detailed order reiterating is earlier order (directing the extension of ease by four years) and further directed that he formalities be completed. The Minister, on 6th September 1985, again passed a detailed order reiterating is earlier order (directing the extension of ease by four years) and further directed that he formalities be completed. After the said final settlement and the said order relating to the extension of the lease, the petitioner made huge investments in order to develop and to run the quarry in the next extended four years. In Writ Petition No. 1112 of 1985, the petitioner sought an amendment and prayed that a writ in the nature of mandamus may be issued commanding the respondents to complete the formalities relating to the extension of 'the lease for four years and execute all the necessary documents. However, the petitioner got the writ petition dismissed as not pressed. On 24th October, 1985, the State Government informed the petitioner that his representation had been dismissed. This order had been passed without any opportunity of a hearing to the petitioner. On 24th October, 1985, no representation was pending before the State Government. All the representations made by the petitioner stood exhausted on 6th June, 1985. In any view of the matter, the State Government had no jurisdiction to review its order. On 15th November, 1985, a writ petn. No. 17376 of 1985 was preferred by the petitioner challenging the order dated 24th October, 1985 of the State Government. Pending admission, this Court restrained the State Government and the District Officer from interfering with the mining operations of the petitioner in the area concerned. On 21st January, 1986, this Court dismissed the aforesaid writ petition and directed the petitioner to seek his remedy before the Central Government. The petitioner preferred a revision application. In the revision application the Mines Tribunal passed an interim order under which the petitioner continued the excavation of minor minerals in the concerned area The applications made by M/s. Bal Kishan and Company and the Samiti for being impleaded as parties were rejected by the Mines Tribunal On 19th May, 1986, the Mines Tribunal dismissed the revision application of the petitioner. 7. In the counter-affidavit filed on behalf of the State of Uttar Pradesh, the District Officer and the Officer-in-charge Mines Hamirpur the averments are these. On 5th December, 1975, no letter of acceptance was issued by the State Government. 7. In the counter-affidavit filed on behalf of the State of Uttar Pradesh, the District Officer and the Officer-in-charge Mines Hamirpur the averments are these. On 5th December, 1975, no letter of acceptance was issued by the State Government. It merely directed the petitioner to commence the proceedings in the office of the District Magistrate for the grant of a lease. The petitioner, on his own volition, agreed to the grant of a mining lease for a period of two years and a deed of lease to that effect was executed on 24th March, 1976. No assurance was given to the petitioner that the period of the lease would be extended by another three years. No agreement came into existence for extending the period of lease beyond two years. The Central Government, on 20th September, 1982, while dismissing the revision application of M/s. Bal Kishan and Company gave a direction that the State Government will not give any area by negotiation after the existing period of lease had expired The petitioner was given the possession of the area concerned and he enjoyed the mining rights for six years. The State Government did not receive any other representation except the one made by the petitioner on 17th January, 1985. No official of the State Government gave out to the petitioner that his case was not being considered on account of the amended sub-rule (3) of R. 9 of the Rules. However, the State Government issued a circular to All District .Officers to grant leases for excavating ordinary sand to the societies of Mallahs (Boatmen). In Writ Petition No. 1112 of 1985, the petitioner obtained an ex parte interim order. Records available in the Government reveal that the Minister had made a note for extension of period of lease. It was a mere proposal of the Minister on the file. It was not an order on behalf of the State Government. The proposal of the Minister was turned down by the Chief Minister "who is the overall in charge". Accordingly, the representation of the petitioner was rejected by the State Government. The letter dated 22nd June, 1985, of the petitioner was in continuation of the earlier representation dated 17th January, 1985. The Minister merely made an official note and did not pass any order. No assurance was ever given to the petitioner for the extension of the period of lease. The letter dated 22nd June, 1985, of the petitioner was in continuation of the earlier representation dated 17th January, 1985. The Minister merely made an official note and did not pass any order. No assurance was ever given to the petitioner for the extension of the period of lease. No demand for any royalty or lease money was ever made by the State Government after the expiry of the period of lease which had been granted for six years. The petitioner tendered the amounts thereafter at his own risk. The petitioner withdrew the Writ petition No. 1112 of 1985 filed at Lucknow because he had, in a subsequent writ petition filed at Allahabad, obtained an interim order. It was not necessary to give any hearing to the petitioner while disposing of his representation. After the expiry of the lease on 18th March, 1985, the petitioner had no subsisting right to continue mining operations in the area concerned. The State Government had passed only one order, viz., dated 24th October, 1985 and, therefore, the question of any order having been reviewed did not arise. The overall in charge of all the business of the State is the Chief Minister. The representation of the petitioner was rejected by the State Government after the approval of the Chief Minister. The petitioner, on 23rd February, 1979, accepted the period of lease as six years (true copy of the acceptance of the petitioner is filed as Annexure CA-1). The file of the State Government was before the Mines Tribunal. It examined it thoroughly and thereafter passed the impugned order. 8. The material findings recorded by the Mines Tribunal are these. By his letter dated 23rd February, 1979, addressed to the District Officer, the petitioner unequivocally accepted the lease for a period of six years. From 1979 to 1985 the petitioner did not make any representation to the State Government or to any other authority praying that he should have been given a lease for a period of ten years instead of six years. There is no provision in the Act or the Rules for extension or renewal of the lease. A perusal of the proceedings dated 24th June, 1985, shows that the Minister had merely recorded his opinion in the matter. There is no provision in the Act or the Rules for extension or renewal of the lease. A perusal of the proceedings dated 24th June, 1985, shows that the Minister had merely recorded his opinion in the matter. On a perusal of the relevant records produced by the representative of the State of Uttar Pradesh and after going through the notings therein, it appeared that the matter went to the Chief Minister and the Law Department of the State of Uttar Pradesh. On the basis of the opinion expressed by the Law Department and the decision taken by the Chief Minister and taking into account the direction given by the Central Government in its order dated 20th September, 1982, the State Government passed the order rejecting the representation of the petitioner. The opinion expressed by the Minister was neither accepted by the Cabinet Minister concerned nor by the Chief Minister. The notings of the Minister dated 24th June, 1985 and 6th September, 1985 are merely expression of opinion and can by no means be considered as an order under the Actor the rules. The lease was granted to the petitioner for a period of six years and he (the petitioner) was clearly aware of the period. The petitioner did not accept the lease under any protest. A perusal of the proceedings dated 23rd February, 1979, indicates that the petitioner had accepted the lease for six years unconditionally. This conclusion is fortified by the conduct of the petitioner. For, had he not agreed to the period of lease, he would have preferred a revision application before the Central Government under section 30 of the Act. He failed to do so. He did not agitate this matter by means of a writ petition either. The petitioner did not raise this issue in the revision application of M/s. Bal Kishan and Company in which he was arrayed as an opposite-party. The petitioner did not challenge the order dated 20th September, 1982, passed by the Central Government in which directions were given that the mining lease be given to a Public Sector Corporation or by an open auction after the expiry of the period of lease. This order of the Central Government has become absolute and the State Government as well as the petitioner are bound by the direction given in the order. There is no provision for renewal or extension of the lease. This order of the Central Government has become absolute and the State Government as well as the petitioner are bound by the direction given in the order. There is no provision for renewal or extension of the lease. The lease has expired on 18th March, 1985. The direction given on 20th September, 1982, is reiterated. The area should be exploited either in the public sector or the State Government should grant a lease by open auction. If open auction is resorted to, the petitioner will have an opportunity to participate in the same. It is highly deplorable that notings on files reached the hands of private parties. It is imperative that the State Government instituted an inquiry into the matter to curb such mal-practices. 9. The sheet-anchor of the case of the petitioner in this Court is that the nothings of the Minister dated 6th June, 1985, 24th June, 1985/ 1st July, 1985 and 6th September, 1985, on the file constitute a decision. Emphasis is laid on the fact that these notings were made in the presence of the petitioner and to his knowledge and, therefore, stood duly communicated to him. The submission is that it is immaterial that the order, at no stage, was passed or issued in accordance with the provisions of Article 166 which are directory and not mandatory. We may make it clear at once that no exception can be taken to the view that the non-expression of the order or decision in the form as laid down in Article 166 read with Article 154 (1) of the Constitution is not fatal It is well known that substance and not the form matters. 10. Let us, therefore, examine the aforementioned notings on the file. The notings of 6th June, 1985, are not before us as a true copy of the same has not been filed by the petitioner. As regard these notings the averments in paragraph 33 of the writ petition are these. 10. Let us, therefore, examine the aforementioned notings on the file. The notings of 6th June, 1985, are not before us as a true copy of the same has not been filed by the petitioner. As regard these notings the averments in paragraph 33 of the writ petition are these. In order to decide the representation of the petitioner, the Minister called him (the petitioner) and after perusing reports of the officials of the Department and after detailed discussion with the petitioner on 6th June, 1985, the Minister offered that the lease would be extended for a period of four years on the condition that the petitioner will enhance the lease money by 15% per annum and the petitioner will withdraw the pending writ petition No. 1112 of 1985. The petitioner agreed to the terms of the enhancement of the lease money by 15% per annum on the same day, but he made it clear that he would withdraw the writ petition only after all the formalities regarding the agreement relating to the period of extension of the lease have been completed. The Minister agreed to the terms and passed the order in presence of the petitioner thereby communicating the decision of the State Government. The notings of 24th June, 1985/1st July, 85, may be examined. The relevant portion runs.; "Sri Mahender Singh met me in this matter on 6-6-1985, Special Secretary Sri Rai Prakash Ji was also present in my Chamber at that time which fact has been mentioned on page 21. Now Sri Mahender Singh has given a letter dated 22-6-1985, which is flag 'cha giving the reference of previous settlement. He has written in that he is unable to complete the other formalities because the formal orders according to settlement have not been issued as agreed. It is correct that if the final decision is not taken in this case then the litigation will definitely continue and as a result of which Government will have to suffer loss of revenue. Therefore, I am of the opinion after considering all the aforesaid points that it would be proper,to extend the period of lease of Sri Mahender Singh by another 4 years. The orders be issued according 1 after getting the formalities completed. (Underlining by us). 11. Therefore, I am of the opinion after considering all the aforesaid points that it would be proper,to extend the period of lease of Sri Mahender Singh by another 4 years. The orders be issued according 1 after getting the formalities completed. (Underlining by us). 11. We have examined the entire notings of the said dates and our reading of the whole of it, particularly the first portion underlined by us, leaves no room for doubt in our mind that on 6th June, 1985, the Minister, had not taken any final decision. The second and the third portions, as underlined by us, indicate that even in the noting under consideration no decision was taken by the Minister. The 'Minister merely purported to make a recommendation. He had in his mind certain, formalities which had to be gone into. We shall make a reference to these formalities a little later. 12. Now the notings of 6th September, 1985, may be looked into. In these notings there is a reference to pages 25 and 26 which, it appears, record the proceedings of 6th June, 1985. The Minister observes that he passed the orders at pages 25 and 26 after entering into an agreement with the petitioner in the presence of the Special Secretary for extending, the period of mining lease by four years. He concludes : "I am still of the view that in the interest of the Government Revenue and Mineral Development the period of mining lease of Shri Singh be extended by 4 years according to the terms of agreement after getting all the formalities completed by him." (underlining by us). The notings read as a whole, particularly, the portion underlined by us, again gives an impression to us that the Minister purported to refer to his opinion. He did not purport to pass a final order. The notings of the Minister, therefore, remained mere proposals. 13. In the writ petition there is no averment whatsoever that the notings of 24th June 1985/1st July, 1985 and 6th September, 1985, were made either in consultation with the petitioner or in his presence or to his knowledge. There is no averment whatsoever as to in what manner these two notings were communicated to the petitioner. In State of Kerala v. Lakshmikutty, AIR 1987 SC 331 the relevant facts are these. There is no averment whatsoever as to in what manner these two notings were communicated to the petitioner. In State of Kerala v. Lakshmikutty, AIR 1987 SC 331 the relevant facts are these. The High Court of Kerala sent to the Chief Minister the panel of 14 names for appointment as District Judges from the Bar. There were five vacancies to be filled up by direct recruitment. On 31st January, 1985, the Chief Minister briefed the press as regards the decision taken at the meeting of the Council of Ministers held on the previous day and the news of the press conference was published in the newspaper to the effect that the Government had decided to fill up 4 posts of District Judges. Later on, the Government, it appears, decided not to make any appointment from the panel of names forwarded by the High Court. While answering the question as to whether the Council of Ministers could have reviewed their earlier decision the Court observes : "What the news item conveyed was that the Council of Ministers had taken a decision to advise the Governor to appoint respondents 3-6 as District Judges. The Governor has to act with the aid and advice of the Council of Ministers as required by Article 163(1). Whatever the Council of Ministers may say in regard to a particular matter, does not become the action of the State Government till the advice of the Council of ministers is accepted or deemed to be accepted by the Head of the 'State. Before an advice of the Council of Ministers amounts to an order of the State Government, there are two requirements to be fulfilled, namely, (1) the order of the State Government had to be expressed in the name of the Governor as required by Article 166(1), and (2) it has to be communicated to the persons concerned, See State of Punjab v. Sodhi Sukhdev Singh (1961) 2 SCR 371 : AIR 1961 SC 493 and Bachhittar Singh v. State of Punjab (1962) Suppl. (3) SCR 713: AIR 1963 SC 395 . It must therefore follow that unless and until the decision taken by the Council of Minister on January 30,1985 was translated into action by the issue of a notification expressed in the name of the Governor as required by Article 166(1), it could not be said to be an order of the State Government. It must therefore follow that unless and until the decision taken by the Council of Minister on January 30,1985 was translated into action by the issue of a notification expressed in the name of the Governor as required by Article 166(1), it could not be said to be an order of the State Government. Until then, the earlier decision of the Council of Ministers was only a tentative one and it was therefore fully competent for the High Court to reconsider the matter and come to a fresh decision." It is thus clear that two things have been emphasised by their Lordships of the Supreme Court. First, there has to be an order in accordance with Article 166(1) and (2). Secondly, the order has to be communicated to the person concerned In the case in hand, we have already indicated, no attempt was made to formulate the order in consonance with Article 166(1) and (2). No attempt was made to comply with the said provisions in any manner much less in a substantial manner. If a provision is directory it does not mean that it should be observed in its complete breach. The requirement of its substantial compliance is not done away with. Therefore, the first ingredient is clearly lacking in the three notings. The second ingredient also remains unfulfilled in the case of the notings of 24th June, 1985/1st July, 1985 and 6th September, 1985 as the petitioner has not even made a whisper of the fact that the same were communicated to him. The net result is that the petitioner cannot take any advantage whatsoever of the three notings. 14. As already stated the bed rock of the case of the petitioner is that the Minister passed the order extending the lease for an additional period of four years. On this premise, the argument is that the order of the Minister became final and was not subject to any review either by himself or by any other authority. We have already destroyed the foundation However, assuming that the same exists, the submission cannot be accepted for more than one reason. 15. On this premise, the argument is that the order of the Minister became final and was not subject to any review either by himself or by any other authority. We have already destroyed the foundation However, assuming that the same exists, the submission cannot be accepted for more than one reason. 15. On 15th May, 1982, the Governor in the purported exercise of powers under clauses (2) and (3) of Article 166 of the Constitution substituted Rule 3 of the U.P. (Allocation) (Amendment) Rules, 1982 Rules and the substituted Rule, which is relevant, provided that the Governor shall, on the advice of the Chief Minister, allot among the Ministers, the business of the Government by assigning one or more Departments to the charge of a Minister. It appears that the Minister-in-charge authorised the Minister to deal with the development of minor minerals. In the exercise of the same powers, the Governor made the Uttar Pradesh Rules of Business, 1975. In these Rules "Department" is defined to mean any of the Departments specified in the Business of Uttar Pradesh (Allocation) Rules, 1975. Rule 3 of these Rules enjoins that subject to the provisions of the Rules in regard to consultation with other Departments and submission of cases to the Chief Minister, the Cabinet and the Governor, all business allotted, to a Department under the Business of U.P. (Allocation) Rules, 1975, shall be disposed of by or under the general or special order of the Minister-in-charge. In these Rules, Rule 8 lays down that all cases of the nature specified in the 11 Schedule to these Rules shall, before the issue of orders thereon, be submitted to the Chief Minister or to the Governor or to the Governor and the Chief Minister as indicated therein. Thus, the disposal of the business by the Minister-in-charge is subject to Rule 8. It follows that in the instant case the disposal of business by the Minister is also subject to Rule 3. Of course, Rule 8 is applicable to cases of the nature specified in the II Schedule. In the II Schedule Item No. 27 provides : "Any other matter which the Chief Minister may from time to time, by general or special order, specify". It also provides that such matter had to be submitted to the Chief Minister. Of course, Rule 8 is applicable to cases of the nature specified in the II Schedule. In the II Schedule Item No. 27 provides : "Any other matter which the Chief Minister may from time to time, by general or special order, specify". It also provides that such matter had to be submitted to the Chief Minister. In the case in hand, there is no dispute that the matter was placed before the Chief Minister. There is no averment in the writ petition that the particular matter was not required to be submitted to the Chief Minister on account of any general or special order passed by him in that behalf. Therefore, there is a presumption that the matter was submitted to the Chief Minister under Rule 8 of the aforesaid Rules such a presumption can be drawn under section 114 of the Evidence Act read with illustration (e). the notings of the Minister dated 24th June, 1985/1st July, 19&5, that "orders be issued accordingly after getting the formalities completed" lend support to this presumption. 16. It is implicit in Rule 8 that mere sending of the file to the Chief Minister is not enough and what is imperative is the agreement or the disagreement of the Chief Minister. The disposal of a business by a Minister is tentative. It is a mere expression of his opinion. It cannot take the shape of an order unless the Chief Minister expresses his assent or dissent The condition precedent to the issue of an order is the concurrence or the disagreement of the Chief Minister. It is thus clear that the Chief Minister had the jurisdiction to negative the proposal of the Minister. It is also clear that the notings of the Minister all along had the status of a mere proposal or the expression of his individual opinion and no more. 17. Our Constitution has adopted the British Parliamentary system. The founding fathers adopted the cabinet form of Government as in vogue in the United Kingdom. Such a form of Government is based on the "West minister Model". England had and has no written Constitution. Therefore, for examining the powers of the President and the Governors in our country, apart from the express or the implied provisions of the Constitution, we are obliged to look into the conventions of the British Constitution. Such a form of Government is based on the "West minister Model". England had and has no written Constitution. Therefore, for examining the powers of the President and the Governors in our country, apart from the express or the implied provisions of the Constitution, we are obliged to look into the conventions of the British Constitution. The President as well as Governors are required to act upon the advice. tendered by the Council of Ministers except in certain specified matters with which we are not concerned at the moment. 18. In England the Queen has the right to be informed and to express her views on the questions involved. However, she cannot override the advice tendered to her by the cabinet. In Constitutional and Administrative Law, Second Edition, Professor De Smith says : "As Bagchot wrote, (the Queen) has the 'right to be consulted, the right to encourage, the right to warn, '.....To be more explicit, she has the conventional right to receive cabinet papers and minutes, to be kept ordinarily informed by the Prime Minister (with whom she has regular weekly audiences) on matters of national policy, to receive Foreign Office despatches and telegrams and other State papers (which take two or three hours a day to read)....... 19. Articles 78 and 167 of the Constitution, which respectively deal with the duties of the Prime Minister and the Chief Minister as respects the furnishing of information to the President and the Governor, reflect the conventions set out by Professor De Smith referred to above. Article 167 mandates that it shall be the duty of the Chief Minister of each State (a) to communicate to the Governor of the State all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation; (b) to furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for; and (c) if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council." 20. In Article 167 a duty has been cast upon the Chief Minister to do certain things in favour of the Governor. In Article 167 a duty has been cast upon the Chief Minister to do certain things in favour of the Governor. Therefore, a corresponding right is created in the Governor to at least expect the performance of the duty by the Chief Minister. In the case in hand we are really concerned with clause (c) of Article 167. It is implicit in the sub-clause under consideration that any matter on which a decision has been taken by a Minister and which has not been placed for the consideration of the Council of Ministers shall be submitted to the Governor. If the matter does not come to the knowledge of the Governor, he will not be in a position to exercise the power conferred upon him. It is to be remembered that the power which the Governor may exercise under the sub-clause is a constitutional power and such a power will be reduced to a mere decorative piece, if it is held that it is not imperative that decision taken by a Minister must be submitted to the Governor. 21. in the case in hand, indisputably no orders in accordance with Articles 166(1) and 166(2) had been issued. Had this been done, a presumption would have arisen that the proceedings had been conducted in accordance with the Constitutional requirements and in accordance with the Rules of Business etc. Therefore, there could be a presumption that sub-clause (c) of Article 167 had been complied with. In the instant case such a presumption is not available. It is not the petitioner's case, nor can it be, that the decision taken by the Minister and as contained in the notings was ever submitted to the Governor. On the other hand, the specific case of the State is that the Chief Minister turned down the proposal of the Minister and, therefore, the stage of forwarding the papers to the Governor did not arise. This, therefore, is an additional ground for taking the view that the notings 'remained a mere proposal or the opinion of the Minister as the formalities were not .complied with. 22. The submission is that the order of the Chief Minister stands vitiated as the same had been passed without affording any opportunity of a hearing to the petitioner and in violation of the principles of natural justice. 22. The submission is that the order of the Chief Minister stands vitiated as the same had been passed without affording any opportunity of a hearing to the petitioner and in violation of the principles of natural justice. It is admitted that there is no provision either express of implied either in the Act or in the Rules for giving a viva voce hearing. The representation made by the petitioner for the extension of the lease was a self-contained one. The State Government while dealing with that representation exercised its power under the Act and the Rules. The manner of the exercise of the power by the State Government is governed by the Constitution. There is no provision express or implied either in the Constitution or in the Rules of Business providing for a hearing at any stage. This should, therefore, be enough to sound a death-knell of the submission under consideration. However, in order to get over the difficulty, learned counsel argued that even the tentative opinion of the Minister gave rise to a "legitimate expectation" and therefore, justice and fair play demanded that the petitioner should have been heard by the Chief Minister. The argument is fallacious. The matter was before the State' Government. The ultimate authority to take a decision either way was the Chief Minister. Any recommendation made by the Minister in favour of the petitioner for being considered by the Chief Minister and which was subject to the approval of the Chief Minister could not instill any expectation in favour of the petitioner much less a legitimate expectation. 23. In Revision application of Bal Krishan and Company the petitioner was a party. The Central Government while disposing of that application had given a direction to the State Government that after the expiry of the lease in favour of the petitioner on 18th March, 1985, which, as already indicated, was for a period of six years, the area should either be exploited in the public sector or the State Government should grant lease by open auction. The petitioner acquiesced into that direction. It, therefore, became binding not only upon the petitioner but upon the State Government too. The State Government, therefore, could have had no jurisdiction to grant lease in disregard of the direction of the Central Government. If it had done so, it. would have exceeded its jurisdiction. The petitioner acquiesced into that direction. It, therefore, became binding not only upon the petitioner but upon the State Government too. The State Government, therefore, could have had no jurisdiction to grant lease in disregard of the direction of the Central Government. If it had done so, it. would have exceeded its jurisdiction. The Chief Minister, therefore, was justified in rejecting the proposal of the Minister. The impugned order, therefore, is unassailable on this score. 24. Neither in the Act nor in the Rules existed or exists any provision either for the renewal of a lease or for the extension of the term of the lease. It is to be remembered that all along the petitioner prayed for the extension of the lease from a period of six' 1 years to ten years. That was the precise prayer made by him in his representation dated 17th January, 1985. Therefore, the proceedings initiated by the petitioner for extending the period of the lease were misconceived. The impugned order, therefore, can also be (justified on this ground. 25. In paragraph 12 of the impugned order passed by the Mines Tribunal it is noted that 6000 acres of land was the subject matter of lease in favour of the petitioner and he was seeking-an extension of the lease with respect to this area of land. In paragraph 14 the Mines Tribunal has noted the fact that M/s. Bal Kishan and Company offered a sum of Rs. 35,00000/- {rupees thirty five lacks) for the area, whereas the Minister had proposed the extention of the lease in favour of the petitioner on an increase of 15% per annum of the then existing royalty, viz. 10,55000/-. Thus the total figure for which the Minister proposed the extension of the lease was Rs. 12,00,000/- only. The proposal of the Minister ex facie was against the interest of the revenue of the State. This is yet another ground for not interfering with the impugned order. Time and again the Supreme Court has emphasised that in such matters public interest should be the prime consideration and an attempt on the part of the executive to promote the interest of an individual at the cost of the State should be eschewed. Merits, apart, in our opinion, this is not a fit case for the exercise of jurisdiction under Article 226 of the Constitution. 26. Merits, apart, in our opinion, this is not a fit case for the exercise of jurisdiction under Article 226 of the Constitution. 26. In Writ Petition No. 6644 of 1986 the Samiti initially prayed that the order of the Mines Tribunal refusing its application for being impleaded as one of the parties in the revision application of the petitioner may be quashed Now the prayer is that a direction in the nature of mandamus may be issued to the respondents to grant a lease in favour of the Samiti. 27. The main plank of the Samiti case is that sub-rule (3) of Rule 9 of the Rules, which was introduced with effect from 11th January, 1985, provides that in respect of mining lease for excavation of sand, preference shall be given to a Co-operative Society, registered or deemed to be registered, of the same district under any law for the time being in force, consisting of persons who are engaged in carrying out the occupation of excavation of sand as a profession. The Explanation to this sub-rule contains a list of certain category of persons who may be deemed to be engaged in carrying out the excavation of sand as a profession. According to the Samiti, it fulfills the requirements of the lease. The submission is that in view of sub-rule (3) the direction given by the Mines Tribunal in the impugned order that minor minerals should be exploited either in the public sector or lease should be given by means of a public auction is-illegal. The further argument is that the expression 'sand includes Morrum. 28. Rule 9 falls in Chapter 11. This Chapter gives the details of the mode of the making of the application, the manner of disposing of the application, the maximum area to be covered, the period of the lease etc. Chapter III deals with the payment of royalty and dead rent. Chapter IV concerns the auction of lease. Chapter VI deals with mining permit. Rule 23, which falls in Chapter IV has, relevance. Sub-Rule (1) provides that the State Government may notify in the Gazette specific area which may be leased out by auction. Sub-rule (2) says that no area shall be leased out by auction for more than three years at a time. Chapter VI deals with mining permit. Rule 23, which falls in Chapter IV has, relevance. Sub-Rule (1) provides that the State Government may notify in the Gazette specific area which may be leased out by auction. Sub-rule (2) says that no area shall be leased out by auction for more than three years at a time. Sub-rule (3) is important and it says that on the publication of the notification under sub-rule (1) the provisions of Chapters 11, III and VI of the Rules shall not apply to the area or areas in respect of which the notification has been issued. Such area or areas may be leased out according to the procedure described in this chapter. 29. The Mines Tribunal has rejected the revision application of Mahender Singh, the petitioner in Writ Petition No. 5967 of 1986. Thereafter it has given two directions to the State Government. The first is that minor minerals should be exploited in the public sector and the second is that if that is not possible recourse should be had to public auction. In our opinion neither of the two directions run counter to sub-rule (3) of Rule 9. For the exploitation of the minor minerals through the public sector Chapter 11 will have application. In sub-rule (3) of Rule 9 no doubt the word 'preference' has been used, but it is implicit in the sub-rule that preference will be given only in a situation where other things are equal This word itself indicates that it will come into operation only when a balance has to be struck between rival contenders. On the practical plane the Samiti may claim a preference if lease is given through negotiations and the amount of the lease money or royalty offered by others, including the public sector, is equivalent to the amount of lease money or royalty which the Samiti may be prepared. to offer. However, if the authority decides to have recourse to Chapter IV, viz., the lease by auction, sub-rule (3) of Rule 9, which falls in Chapter.. H will have no application at all and the Samiti will have to participate in the auction, if it so desires, like any other contender for a lease or permit. to offer. However, if the authority decides to have recourse to Chapter IV, viz., the lease by auction, sub-rule (3) of Rule 9, which falls in Chapter.. H will have no application at all and the Samiti will have to participate in the auction, if it so desires, like any other contender for a lease or permit. Rule 68 empowers the State Government, after complying with certain formalities, to grant any mining lease or the working of any mine for the purpose of winning any mineral on terms and conditions different from those written in the Rules. But the rider is that the State Government has to form an opinion that it is in the interest of mineral development for doing so. At this stage we do not consider it necessary to give any opinion on the question as to whether sand includes Morrum. This is purely an academic question at present. If the authority concerned decides to proceed under Chapter II and if the Samiti is in the arena, then, this question may arise and if it arises, the authority concerned shall decide the same. 30. We are, therefore of the opinion that at this stage the Samiti cannot get any relief from us. 31. We have already indicated that the subject matter of the lease, which had been granted to Sri Mahender Singh, the petitioner in writ petition No. 5967 of 1986 was 6000 acres. The lease expired on 18th March, 1985 and on the same day the District Officer, Hamirpur, directed the petitioner to stop the excavation of the mineral. On 21st March, 1985, in Writ Petition No. 1112 of 1984 preferred by the petitioner before this Court at Lucknow an interim order was passed to the effect that till 12th April, 1985, the operation of the order of 18th March, 1985, passed by the District Officer was to remain stayed, the State Government was directed to dispose of the representation of the petitioner in the mean time and the petitioner was to be permitted to carry on mining operations on the same terms and conditions on which he was granted the lease. The said interim order was extended from time to time. The impugned order dated 24th October, 1985 was challenged by the petitioner in this Court on 15th November, 1985, by means of Writ Petition No. 17376 of 1985. The said interim order was extended from time to time. The impugned order dated 24th October, 1985 was challenged by the petitioner in this Court on 15th November, 1985, by means of Writ Petition No. 17376 of 1985. On that date Writ Petition No. 1112 of 1985 was pending at Lucknow Bench. On 15th November, 1985, this Court passed an interim order to the effect that till further orders the respondents in the writ petition were restrained from interfering with the mining operation of the petitioner, relating to the mining area of Tehsil Hamirpur, district Hamirpur. Thereafter, on 18th November, 1985, the District Officer, probably acting on the fact that on 18th November, 1985, the writ petition pending at Lucknow had been dismissed, restrained the petitioner from quarrying the minerals. This court on 29th November, 1985, in Writ Petition No. 17376 of 1985 made it clear that the petitioner would be entitled to continue the mining operation as he was doing before. This Court directed the District Officer not to interfere in any manner with the mining operations of the petitioner. On 21st January, 1986, the writ petition No. 17376 of 1985 was dismissed on the ground that the petitioner had a statutory remedy before the Mines Tribunal under section 30 of the Act. Before the Mines Tribunal, the petitioner made an application for interim relief and he got the same, with the result that he continued with the mining operations. As already stated, on 19th May, 1986, the Mines Tribunal dismissed the revision application of the petitioner. On 23rd May, 1986, the last working day of the Court before the commencement of the Summer Vacations, this petition was presented. On that date learned Standing Counsel prayed for three days' time to file counter-affidavit and the petitioner took another three days' time to file a rejoinder affidavit. It was directed that the petition should be listed for admission before the appropriate Bench on 2nd June, 1986. It was also directed that till 10th June, 1986, the status quo as obtaining on 23rd May, 1986 shall be maintained. On 30th May, 1986, this petition and Writ Petition No. 6644 of 1986 came up before this Court. On that date, the following order was passed : "List the writ petition for admission along with the stay matter for further consideration on 8-7-1986 along with writ petition no. On 30th May, 1986, this petition and Writ Petition No. 6644 of 1986 came up before this Court. On that date, the following order was passed : "List the writ petition for admission along with the stay matter for further consideration on 8-7-1986 along with writ petition no. nil of 1986, Nishad Balu Machhya Shramik Kaan Samiti v. State of U.P. & others moved today. Having heard the learned counsel for the petitioner, the learned Standing Counsel as well as Sri R.C. Srivastava who represents the party which has applied for impleadment in this petition as a respondent I am of the opinion that till the petition and the interim matter are taken up in July 1986 the following directions should be issued in order to preserve the rights claimed by various parties. The respondents Nos. 1 to 3 are restrained till 10th July 1986 from granting any permit or otherwise settling the right to do mining operations over the area in question in any manner whatsoever after the U. P. State Mineral Development Corporation has lifted the ten thousand cubic ft. of sand and morrum under the permit granted to it on the 22nd May, 1986, vide Annexure C.A. 3 to the counter affidavit of Sri Shiv Ram Shivhare. All these matters shall be listed peremptorily on the 8th July, 1986." Sd/- A.N.V. May 30, 1986." On 16th June, 1986, this Court passed the following order :- "List for further orders on 8-7-1986 along with the writ petition. . Meanwhile the opposite parties shall not interfere with the mining operation of the petitioner relating to the mining area of Tehsil & District Hamirpur provided he deposits Rs. 60,000/- with the opposite party No. 2 within three days. .............. On 16th December, 1986, we passed the following order : "We have heard the arguments piecemeal for three days. This case is likely to take time. We are receiving fresh petitions these days and Winter vacations are to commence from 20th December, 1986. There is no possibility of the case being finally heard before the commencement of the vacations. Learned counsel for the parties are agreed that this petition may be listed for hearing on 6th January, 1987. Let this be done. We are receiving fresh petitions these days and Winter vacations are to commence from 20th December, 1986. There is no possibility of the case being finally heard before the commencement of the vacations. Learned counsel for the parties are agreed that this petition may be listed for hearing on 6th January, 1987. Let this be done. Sri B.D. Agarwal, the learned Senior Counsel for the petitioner gives an undertaking that in the event of failure of the writ petition, the petitioner shall pay to the State such amount as this Court determines. The petitioner shall maintain day to day account of sand and morrum extracted and file the same before the Court. The Standing counsel shall produce the record in the court on the next date of hearing. Sd/- S.K.D. Sd/- D.S.S. 16-12-1986." 32. We have already indicated the reasons as to why this petition should be dismissed. Now, we have to determine damages payable by the petitioner to the State of Uttar Pradesh on the basis of the undertaking given by the learned counsel for the petitioner. There is no doubt that even the Mines Tribunal had noted the fact that M/s. Bal Kishan and Company was prepared to pay a sum of Rs. 35,00000/- per annum to the State for extracting minor minerals from the area in question. On 10th September, 1986, an application was made on behalf of the Corporation supported by an affidavit. In paragraph 9 of the affidavit it was averred that the Corporation had offered to pay royalty to the State Government for excavating minor minerals in the area in question at the rate of Rs. 4,00,000/- per month. This fact had earlier been mentioned by the Corporation in an affidavit filed in support of an application made on 16th June, 1986, praying that the interim order passed in writ petition may be vacated. At this stage, it may be mentioned that the case of the Corporation was that on 22nd May. 1986, that is before any order was passed by this Court in this writ petition, a lease for a period of 45 days had been granted by the State Government to the Corporation and in any view of the matter it was entitled to continue the mining operation for that limited period. The Corporation is a public sector organisation and, therefore, the question of its giving Ian inflated offer does not arise. The Corporation is a public sector organisation and, therefore, the question of its giving Ian inflated offer does not arise. It has an expertise in excavating minerals. It is a commercial enterprise and, therefore, it is to ,be presumed that it must have given the offer of Rs. 4,00,000/- per month or Rs. 48,00,000/- per annum on consideration of sound business principles. We have, therefore, no hesitation in coming to the conclusion that but for the interim orders passed by this Court in this writ petition, the Corporation would have been given a mining lease by the State Government at Rs. 4,00,000/- per month or Rs. 48,00,000/- per annum. The stay order has been in operation from 23rd May, 1986 and it is operating even now. The Corporation was granted a permit for 45 days on 22nd May, 1986, but its life was curtailed by this Court on 16th June, 1986. Therefore, the Corporation could carry out the mining operation only for a period of 26 days (22nd May and 16th June, 1986 being inclusive). Under our orders the petitioner commenced the quarrying of the minerals with effect from 24th May, 1988 and they continued to do so till 31st October, 1988. This comes to 29 months 9 days. Deducting the period of 26 days the period for which the petitioner is liable to pay damages is 28 months and 12 days. 33. The total amount payable by the petitioner to the State at the rate of Rs. 4,00,000/- per month, therefore, comes to Rs. 1,13,73,333.30 p. Out of this amount a sum of Rs. 60,000/- deposited by the petitioner under the orders of this Court shall be deducted. Therefore, the net amount payable is Rs. 1,13,13,333.30 p. 34. We direct the petitioner to stop the excavation of sand/Morrutn from the area in question forthwith. We also direct him (Sri Mahender Singh) to deposit a sum of Rs. 1,13,13,333.30 with the District Officer, Hamirpur, the respondent No. 2 within a period of one month from 1st November. 1988. If the petitioner fails to make the deposit within the time specified by us, he shall be liable to pay interest to the State of U. P. at the rate of 12% per annum from the date of default till the date of actual payment. 1988. If the petitioner fails to make the deposit within the time specified by us, he shall be liable to pay interest to the State of U. P. at the rate of 12% per annum from the date of default till the date of actual payment. Furthermore, the petitioner will also be liable to show cause as to why appropriate proceedings should not be drawn against him for disobeying our directions. 35. Writ petition No. 5967 of 1986 is dismissed with costs. Writ petition No. 6644 of 1986 is also dismissed, but without any order to costs.