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2002 DIGILAW 618 (ALL)

INAM v. STATE OF U. P.

2002-04-26

LAKSHMI BIHARI, S.R.SINGH

body2002
S. R. SINGH AND LAKSHMI BIHARI, JJ. ( 1 ) PETITIONER herein seeks the relief of certiorari to quash the Government Order dated 31. 3. 2002 (Annexure-1) and also for issuance of a writ of mandamus commanding the respondent No. 2 not to grant any extension of the term of mining lease granted to respondent No. 4 beyond 15. 4. 2002 by which the District Magistrate extended the period of lease upto 30. 4. 2002 in continuation of the earlier order dated 15. 3. 2002. The three-year term of the mining lease granted in favour of the 4th respondent came to an end by efflux of time on 5. 4. 2001. ( 2 ) INDISPUTABLY, under the mining policy of the Government, mining leases for minor mineral prior to 27. 8. 1994 used to be granted by auction/tender-cum-auction as provided in Chapter IV of the U. P. Minor Minerals (Concession) Rules, 1963 but by means of a G. O. dated 27. 8. 1994, it was decided to grant mining lease for operating minor minerals by inviting applications under chapter II of the Rules. But by means of G. O. dated 16. 3. 1999, the auction/tender-cum-auction system as provided in Chapter IV was again Introduced. However, it could not last long and by g. O. dated 30. 12. 2000, the system of grant of mining lease as provided under Chapter II of rules was again brought about. Rule 9a of the rules, as substituted by Notification No. 5471/18. 12. 1994-10-9 T. C. dated 22. 2. 1995, which visualised that notwithstanding Rule 9, preference shall be given to socially and educationally backward classes of citizens engaged in carrying on the occupation of excavation of sand or morram as a profession and who are residents of the same district came to be struck down by a Full Bench of this Court in Writ petition No. 256 (M/b) of 1997, Ram Chandra v. State of U. P. and others, vide Judgment dated 27. 3. 2001. However, by G. O. dated 13. 6. 2001, it was made clear that the leases executed prior to 27. 3. 2001 would not be affected by the judgment. By means of public notice dated 8. 3. 2001, the area in question had been notified for grant of lease under Chapter II of the rules. But by radiogram dated 30. 3. However, by G. O. dated 13. 6. 2001, it was made clear that the leases executed prior to 27. 3. 2001 would not be affected by the judgment. By means of public notice dated 8. 3. 2001, the area in question had been notified for grant of lease under Chapter II of the rules. But by radiogram dated 30. 3. 2001 it stopped concession of minor minerals through lease/patta with immediate effect till further orders. Subsequently, by G. O. dated 15. 12. 2001, Government decided to extend the term of the leases which had already expired by one month on terms and conditions stipulated therein. By means of an amendment application, the petitioner has prayed for quashing the order dated 15. 4. 2002. It brooks no dispute that Government order dated 31. 3. 2002, came to be issued in continuation of Government order dated 15. 12. 2001 and 8. 3. 2002 in the purported exercise of power under Rule 68 of the U. P. Minor Minerals [concession) Rules, 1963 (hereinafter referred to as the rules ). These Government orders, it would transpire, were issued in view of the fact that the Full Bench of this Court in Writ Petition no. 256 (M/b) of 1997, Ram Chandra v. State of U. P. and others, had struck down Rule 9a inserted by 28th Amendment Rules, 1994 providing for preference in the matter of grant of leases in favour of socially and educationally backward classes of citizens traditionally engaged in the vocation of excavating sand or morrum. The State Government preferred Special Leave petition (In short the S. L. P.) before the Supreme Court against the Full Bench decision of this court but lateron, retreated by applying for withdrawal of the appeals and the Apex Court was pleased to dismiss the appeal as withdrawn vide order dated 8. 1. 2002, however, some private persons had also filed S. L. Ps. against the judgment of the Full Bench and the S. L. Ps. filed by private persons are hanging fire in the Apex Court and their Lordships in the Supreme Court had initially passed an interim order of status quo which was subsequently modulated to the extent that the Government would be at liberty to amend the Rules. ( 3 ) THE term of the mining lease granted in favour of 4th respondent namely, M/s. Saharanpur associate, Saharanpur expired on 5. 4. ( 3 ) THE term of the mining lease granted in favour of 4th respondent namely, M/s. Saharanpur associate, Saharanpur expired on 5. 4. 2001 but pursuant to the impugned Government orders, it has since been extended upto 30. 4. 2002. It is not repudiated that Chapter IV of the Minor minerals (Concession) Rules provides for grant of mining leases by auction or by tender or by auction-cum-tender. Chapter II of the Minor Minerals (Concession) Rules, 1963, on the other hand, provides for grant of mining lease by inviting application on the basis of the applications given by the individuals subject to fulfilment of conditions postulated under Chapter II of the U. P. Minor Minerals (Concession) Rules, 1963. The application for grant of mining lease under chapter II of the rules is given in Form MM-I as provided in Rule 5 of the rules. Rule 6 prescribes fee that has to be deposited by an applicant applying for grant of mining lease and rule 17 provides for enquiry and report. Rule 8 provides disposal of application and Rule 9 provides for preferential rights of certain person. Rule 9a substituted by Notification No. 5471/18. 12. 94-10-9 T. C. dated 22. 2. 1995, visualised that in the matter of grant of mining lease for sand or morrum or Bajari or boulder or any of these in mixed state exclusively found in the river bed preference shall be given to a person or group of persons whether or not incorporated, who (a) belong to socially and educationally backward classes of citizens engaged in carrying out the occupation of excavations of sand or morrum as a profession and are residents of the same district in which the lease is applied for; is situate; (b) have established or intend to establish the aforesaid minor mineral based industry. This rule, as stated hereinabove, has been struck down by the Full Bench of the Court and the matter is now pending decision before the apex Court. Rule 23, Chapter IV of the rules, on the other hand, provides for declaration of area for grant of mining lease by auction or by tender or by auction-cum- tender. This rule, as stated hereinabove, has been struck down by the Full Bench of the Court and the matter is now pending decision before the apex Court. Rule 23, Chapter IV of the rules, on the other hand, provides for declaration of area for grant of mining lease by auction or by tender or by auction-cum- tender. The mining lease in favour of 4th respondent was granted under Chapter IV and as stated supra; the term of the mining lease granted in favour of 4th respondent expired long back but the same has been extended in view of impugned Government orders. ( 4 ) WE have heard Sri W. H. Khan for the petitioner, standing counsel for the State and Sri S. P. Singh for respondent No. 4, Sri W. H. Khan, appearing for the petitioner assailed the impugned government orders basically on the ground that the U. P. Minor Minerals (Concession) Rules, 1963, did not provide for extension of mining lease granted under Chapter IV and that the impugned Government orders providing for extension of the term of the mining leases beyond the period for which such leases were granted, were shorn of jurisdiction being outside the scope and ambit of Rule 68 of the rules. The learned counsel submits that Rule 68 of the rules empowers the State Government to authorise in any case the grant of any mining lease or the working of any mine for the purpose of winning any mineral on terms and conditions different from those laid down in the rules provided that the State Government is of the opinion that it is necessary so to do, in the interest of mineral development. The burden of the submission is that rule 68 permits relaxation in respect of terms and conditions and not in respect of the manner of grant. The submission made by the learned counsel is loaded with substance. ( 5 ) IN Shiv Charon v. Union of India, 1981 All LJ 641, a Division Bench of this Court has held as under : "rule 68 on which considerable reliance has been placed by counsel for the respondent, in our opinion, does not provide for a third procedure in the matter of granting a mining lease, apart from the two procedures contained, as already pointed out above, in Chapter II and Chapter IV of the rules. On a plain reading of Rule 68, it is apparent that it only gives the State Government a power if, it is of opinion that in the interest of mineral development, it is necessary so to do to authorise by order in writing and for reasons to be recorded in any case the grant of any mining lease or the working of any mine for the purposes of winning any mineral on terms and conditions different from those laid down in these rules. The words if it is of opinion that in the interest of mineral development, it is necessary so to do as also the words on terms and conditions different from those laid down in these rules are important in Rule 68. This rule, in our opinion, does not permit the State Government to grant a mining lease to any person of its choice ignoring the requirements of Chapter II or Chapter IV, as the case may be. It only entitles the State Government to make relaxation in regard to the terms and conditions laid down in these rules in respect of a grant to be made if the State Government is of the opinion that it is necessary so to do in the interest of mineral development. The procedure for the grant contemplated either in Chapter II or Chapter IV will have to be followed even if relaxation of the rules is to be granted. In other words, if no notification under Rule 23 had been issued, applications will have to be invited for the grant of a mining lease as provided by Chapter II and these applications will have to be considered in accordance with the procedure prescribed by that chapter. If it has been decided that lease in accordance with Chapter II deserves to be granted to a particular person and the State Government is of opinion that in the interest of mineral development it is necessary so to do as contemplated by Rule 68, it may authorise the grant of lease to such a person on terms and conditions different from those laid down in the rules. Likewise, if a notification under Rule 23 (1) has been issued and the Government proposes to grant a mining lease, it will have to conduct an auction and the person to whom the mining lease is to be granted will have to be determined in accordance with Chapter IV of the rules. If it has been decided that the lease has to be granted to a particular person, the Government may again, if it is of opinion that in the interest of mineral development it is -necessary so to do, as contemplated by Rule 68, authorise the grant of any mining lease on terms and conditions different from those laid down in these rules. ( 6 ) RULE 3 of the rules clearly interdicts undertaking mining operations in any area within the state of any minor minerals to which the rules are applicable "except under and in accordance with the terms and conditions of a mining lease or mining permit granted under these rules. Sub-rule (2) of Rule 3 provides in no uncertain terms that no mining lease or permit shall be granted otherwise than in accordance with the provisions of the rules. The mode, other than the one prescribed under Chapter II or Chapter IV of the rules, is by necessary implication, excluded. The prohibition contained in Sub-rule (2) of Rule 3, in our opinion, will apply to a case of renewal of a lease or as the case may be, extension of lease for the same involves grant of lease. The rule is that what cannot be done directly ought not to be done indirectly. The mining lease, as stated above, can be granted under either Chapter II or Chapter IV. It is not disputed that the area in question became available for grant of mining lease for undertaking mining operation in respect of sand, bajari, boulder with effect from 6. 4. 2001. The term of lease granted in favour of the 4th respondent had expired long back and the extension of the term of the lease, to our mind, is unauthorised in law. 4. 2001. The term of lease granted in favour of the 4th respondent had expired long back and the extension of the term of the lease, to our mind, is unauthorised in law. However, the extended period too is about to expire on 30th april, 2002 and in that view of the matter, the impugned orders have nearly stood exhausted and have out-lived their utility but since leases can be granted only in the manner as provided either in Chapter II or Chapter IV of the rules, further extension of the term of the lease already granted would be one militating against the law. However, since the matter is subjudice before the Apex court, it is provided that no further extension of the term shall be granted in the leases which have already expired except with the leave of the Supreme Court. ( 7 ) THE writ petition is finally disposed of in terms of the above directions .