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1996 DIGILAW 665 (ALL)

RAGHU NATH v. STATE OF U P

1996-05-23

M.C.AGARWAL, PALOK BASU

body1996
PALOK BASU, J. Raghunath petitioner claims through this writ petition under Article 226 of the Constitution of India that since he is entitled to the right to excavate the area sanctioned -under the order of the District Magistrate, Jalaun dated 1-12-1995, a mandamus should issue commanding the respondents to execute the lease deed and issue Form MM 11 and restrain them from interfering with petitioners mining activities in the demised area. 2. When the writ petition was filed on 16-4-1996 a counter affidavit was called which has been filed to which a rejoinder affidavit has also been filed. Looking at the urgency involved and as jointly requested by the parties. the writ petition is being finally disposed of at the admission stage. Shri B. N. Agrawal, learned Counsel for the petitioner and Shri K. S. Kushwaha, Standing Counsel on behalf of the opposite parties have been heard at length and the entire material has been perused. 3. The short facts are that there was an advertisement in the local Newspaper dated 27-9-1995 declaring 31 areas available for grant of lease under Chapter II of the U. P. Minor Minerals (Concession) Rules, 1963, for short hereinafter referred to as the Rules, for excavating sand/moram. The petitioner is president of village Sikri Vyas, Tfehsil Orai, District Jalaun and consequently he made an application for grant of mining lease with regard to sub-division No. 4 measuring 50 acres in Plot No. 1191-M of village Sikri Vyas Teshil Orai, District Jalaun. Petitioner pleads that he belongs to social y and economically backward class. He also claims preferential rights under Rule 9-A of the Rules. His case is that the District Magistrate accepted his application and issued an order on 1-12-1995 saying that lease in favour of the petitioner has been sanctioned and therefore the petitioner should deposit the re quired royalty and complete necessary formalities. The period of lease was to be for three years on payment of annual royalty of Rs. 1,85,500. On 8-12-1995 the petitioner deposited Rs. 46,375 as was required under the Rules and further he deposited a sum of Rs. 1,250 for getting demarcation done. The grievance of the petitioner is that in spite of all these formalities having been completed, so much so that the petitioner also supplied stamps etc. 1,85,500. On 8-12-1995 the petitioner deposited Rs. 46,375 as was required under the Rules and further he deposited a sum of Rs. 1,250 for getting demarcation done. The grievance of the petitioner is that in spite of all these formalities having been completed, so much so that the petitioner also supplied stamps etc. for execution of the lease deed, the District Magistrate and Mines Officer, Jaulan sat tight over the matter and did not proceed to get the lease deed executed and further, possession of the land was also not given to the petitioner. This forced the petitioner to go on making repre sentation after representation before the District Magistrate the last one being dated 25-1-1996 (Annexure-4) and they also having failed to move either the District Magistrate or the Mines Officer, the petitioner was left with no other alternative remedy except to approach this Court. 4. In the OK inter affidavit the case pleaded by the respondents two-fold. First, there is rt stay order passed by the Lucknow Bench of this Court staying operation of the provisions contained in" Rule 9-A which was added by the 21st Amendment Rules, 1994 and promulgated w. e. f. U-2-1%5. A copy of the order of the Lucknow Bench has been appended as Annexure-1 to the rejoinder affidavit filed by the petitioner though its details are available even in the counter affidavit filed by the respondents. In this connection the State Government has issued a radiogram direct ing District Magistrates not to execute lease deeds because of the directions con tained in the interim order of this Court passed by the Lucknow Bench on j 0-1-1996. Second, the petitioner is not entitled to the preferential rights even on facts because his caste is not covered by the class of persons mentioned in the "explanation" added to Rule 9-A. On these two grounds the District Magistrate is desisting from execut ing the lease deed in favour of the petitioner. It is admitted that if these two grounds are not available to the District Magistrate he is also to follow the rules and get the lease deed executed and further hand over possession of the plots to the petitioner so that he can continue with the excavation. 5. It is admitted that if these two grounds are not available to the District Magistrate he is also to follow the rules and get the lease deed executed and further hand over possession of the plots to the petitioner so that he can continue with the excavation. 5. The short question to be decided in the instant case, therefore, is whether the petitioners allegations have to be interpreted as if he gets the benefit of the "ex planation" added to Rule 9-A or that on the facts of the present case the Explanation to Rule 9-A is not attracted. 6. The only pleading in this connection is to be found in paragraph-3 of the writ petition. For ready reference the said paragraph is quoted hereinafter: "para-3. That the petitioner belongs to the scheduled caste which is one of the socially and economically backward class categories specified under Rule 9-A of the U. P. Minor and Mineral (Concession) Rules, 1963. " 7. The reply contained in paragraph-5 of the counter affidavit to the aforesaid averment is interesting, which says as follows : "in reply to para-3 of the writ petition this averment is correct that the petitioner belongs to scheduled caste and is socially and economically backward. This averment is admitted. The remaining averment that the petitioner is entitled to get preference under Rule 9-A is not admitted. In order of preference citizens belonging to the castes Kevat, Mallah etc. have to be preferred as against the petitioner because they will be governed by the first category and the petitioner would be covered by subsequent category. " (translation by Court) 8. Before proceeding further it may be mentioned here that Shri K. S. Kush-waha, Standing Counsel wanted further time to file supplementary counter affidavit to inform the Court as to whether some others made applications or not concerning the plot demised to the petitioner. It is not necessary because of the reply of the opposite parties to the specific averment of the petitioner contained in paragraph-2 of the petition. In the said paragraph-2 the petitioner pleads as under: "para-2. That in pursuance of the aforesaid advertisement, the petitioner applied for grant of mining lease deed for sand/moram with regard to sub-division No. 4 measuring 50 acres of land in plot No. 1191-M of village Sikri Vyas landhsit Orai, District Jalaun. " 9. In the said paragraph-2 the petitioner pleads as under: "para-2. That in pursuance of the aforesaid advertisement, the petitioner applied for grant of mining lease deed for sand/moram with regard to sub-division No. 4 measuring 50 acres of land in plot No. 1191-M of village Sikri Vyas landhsit Orai, District Jalaun. " 9. The opposite parties in reply say in paragraph-4 of their counter affidavit as under: That the averments made in paragraph-2 of the writ petition does not require any comment. " (Translation by Court) In view of the aforesaid statements of fact that the petitioner made application and claimed benefit only to the extent of being a citizen socially and economically backward but never claimed the benefit of the explanation, has to be accepted. 10. It may be mentioned that the question of preference would arise only when there would be more than one applicant. It is no bodys case that there was any other applicant who was covered in the instant case by the explanation and therefore the petitioner could not get the right under Rule 9-A benefit of the explanation. Under the circumstances, the first argument of the opposite parties that the petitioner was not entitled to get benefit of Rule 9-A is without any substance and stands rejected. 11. Coming to the second objection sought to be argued by Shri Kushwaha on behalf of the opposite parties it may be mentioned that on the facts there was no applicability of the explanation, the petitioners case stood covered by 9-A as it stands without explanation. No preferential advantage was claimed by the petitioner by relying upon the explanation but his claim was confined to the benefit under Rule 9a without the Explanation. Under the circumstances the interim order of the Luck-now Bench dated 10-1-1996 has absolutely no application to the present facts and the District Magistrate should have no apprehension so as to hold the view that the petitioners case should remain isolated because of the aforesaid interim order. 12. Under the circumstances the interim order of the Luck-now Bench dated 10-1-1996 has absolutely no application to the present facts and the District Magistrate should have no apprehension so as to hold the view that the petitioners case should remain isolated because of the aforesaid interim order. 12. It may be mentioned that an explanation is not a substantive provision in a sense of the term but it merely meant to explain and clarify certain ambiguities which may have crept in statutory provision, (see AIR 1985 S. C. 582-Sundaram Pillai v. Pattabiraman, V K. , Similarly, an explanation does not either restrict or extend the enacting part; it does not enlarge or narrow down the scope of the original section that it is supposed to explain, (see Kishan Singh v. Pem Singh, AIR 1939 Lkw 587 Ram Kishore v. Shayam Sunder Lai, AIR 1951 All. 155 . The construction of the explanation must depend upon its terms and no theory of its purpose can be enter tained unless it is to be inferred from the language used. (See 1983 Kerala 193 ). An explanation must be interpreted according to its own tenor; that it is meant to explain and not vice versa. It is an error to explain the explanations with the aid of the provisions, to which it is attached, because this reverses its role. It must be so read as to harmonies with and clear up any ambiguity in the main section. It should not be construed as to widen the ambit of the section, (see Bihar Cooperative Depart ment v. Bank of Bihar, 1967 page 389. 13. Shri B. N. Agrawal, learned Counsel for the petitioner has made a statement on behalf of the petitioner that should it be found that there is some deficiency in payment or he is required to pay some demand the petitioner shall deposit the same within two months from the date a demand is made by the opposite parties after execution of the lease deed. 14. In view of the aforesaid discussions the writ petition succeeds and is al lowed. The opposite parties are commanded by a writ of mandamus to complete all formalities of executing the lease deed and handing over possession of area demised through the said acceptance of the petitioners application for grant of the said lease. 14. In view of the aforesaid discussions the writ petition succeeds and is al lowed. The opposite parties are commanded by a writ of mandamus to complete all formalities of executing the lease deed and handing over possession of area demised through the said acceptance of the petitioners application for grant of the said lease. Action shall be taken within two weeks of production of a certified copy of this order. Parties will bear their own costs. Let a certified copy of the order may be furnished to the learned Counsel for the parties on payment of usual charges within a week from today. Petition allowed. .