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2003 DIGILAW 1562 (SC)

ABHIMANYV PRASAD v. State Of U. P.

2003-12-05

body2003
ORDER 1.Leave granted. 2. The appellants had applied for and were granted a mining lease for three years on 16-9-1998. The lease which was granted under the U.P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as "the Rules") was valid uptil 15-9-2001. It may be mentioned at this stage that the appellants had been granted the lease in terms of Rule 9-A of the said Rules which gave a preferential right to persons belonging to certain specified backward classes. 3. According to the appellants they had applied for renewal of the lease on 23-3-2001 prior to the date of its expiry. In the meanwhile the constitutional validity of Rule 9-A had been challenged before the High Court by certain other (third) persons. The provision was held to be unconstitutional by the High Court on 27-3-2001 and was accordingly struck down. A special leave petition was filed by the State Government as well as by those persons who had been granted preference under Rule 9-A. On 10-9-2001 this Court passed an order of status quo. 4. As already mentioned, the period of the appellants lease expired after three years from its grant, namely, on 15-9-2001 that is after the order of status quo was passed by this Court. An order was passed by the Additional District Magistrate on 27-10-2001 renewing the appellants lease for a further period of three years. A complaint was made by one Gulab Singh before the authorities concerned regarding the renewal. By an order dated 4-1-2002 the Special Secretary wrote to the District Magistrate, Varanasi, saying that in view of this Courts order dated 10-9-2001, a lease could not be renewed in accordance with Rule 9-A of the Rules and that in case there had been any renewal of lease in accordance with Rule 9-A after the order of this Court, the quarrying must be put to a stop and the grant of renewal of lease be stayed. 5. On 8-1-2002 the State of Uttar Pradesh which had challenged the order of the High Court striking down Rule 9-A prayed for withdrawal of its appeal before this Court. The said civil appeal was accordingly dismissed as withdrawn. In other words, the order of the High Court revived and Rule 9-A stood deleted from the Rules on the ground of its unconstitutionality. 6. The said civil appeal was accordingly dismissed as withdrawn. In other words, the order of the High Court revived and Rule 9-A stood deleted from the Rules on the ground of its unconstitutionality. 6. In the meanwhile in response to the letter of the Special Secretary dated 4-1-2002, the District Magistrate wrote a letter to the Secretary, Industrial Development Department of the State referring to an order dated 82-2002 circulated by the Government in which it had been stated that the order of this Court was self-explanatory and that immediate compliance with the same should be made. The letter of the District Magistrate also recorded that he had taken the opinion of the District Government Counsel who had opined that the renewal of the appellants lease was granted before the judgment of the High Court and the order of this Court and as such there was no legal hindrance in its implementation nor any contempt of any order of court. The District Magistrate accordingly recommended the appellants case for grant of permission for excavation of sand. There does not appear to have been any response of the State Government to the District Magistrates letter. However, construing the State Governments earlier letter dated 8-2-2002, the Additional District Magistrate held that the Government had by that letter directed the District Magistrate to allow the quarrying and accordingly the Additional District Magistrate directed the appellants to commence "the work of quarrying and transporting in sand area". 7. The Secretary, Industrial Development Department, was moved in revision by the said Gulab Singh against this order of the Additional District Magistrate. The Secretary was of the view that since the application for grant of lease as well as the application for renewal filed by the appellant were filed under Rule 9-A of the Rules, and since Rule 9-A stood invalidated, and since the renewal was made during the period when the order of this Court directing status quo was operating, the order of the Additional District Magistrate was illegal. The order of renewal of the appellants lease was accordingly set aside. 8. The appellant challenged the order of the revisional authority before the High Court by way of a writ petition. The writ petition was dismissed by the High Court on 7-3-2002 and the application for review was also rejected. 9. The order of renewal of the appellants lease was accordingly set aside. 8. The appellant challenged the order of the revisional authority before the High Court by way of a writ petition. The writ petition was dismissed by the High Court on 7-3-2002 and the application for review was also rejected. 9. The appellants have impugned the order of the High Court rejecting the application for review. It is contended firstly that the revisional authority had no power to exercise the power of review twice and that the power of review had already been exercised once by its order dated 8-2-2002. Reliance had been placed on the language of Rule 78 of the Rules. The second submission is that there was no violation of the order of this Court or of the High Court as wrongly held by the revisional authority as there was an automatic renewal of the appellants lease under Rule 8(2)(b) of the Rules. Finally, it is submitted that the revisional authority erred in holding that the application and the renewal had been made under Rule 9-A and that in any event Rule 9-A has been subsequently amended allowing preference to be given in respect of a portion of the area covered by the lease. 10. In the meanwhile the State Government held an auction-sale of the mining rights in respect of the areas which were the subject-matter of the appellants lease. The impleaded party was declared the successful bidder. a The impleaded party as well as the respondent State have submitted that the special leave petition should be dismissed on the ground, first, that the original order dated 7-10-2002 by which the writ petition had been dismissed had not been challenged. Second, that both the grant and the renewal of the appellants lease were under Rule 9-A which had been declared to be ultra vires. Third, that the renewal was made in the teeth of this Courts order of status quo and that there was no provision for automatic renewal as contended by the appellants, since Rule 8(2)(b) had been deleted w.e.f. 1-32001 i.e. much prior to the date of the application for renewal. Finally, it is submitted that there was no question of the revisional authority exercising a second power of revision under Rule 78. Finally, it is submitted that there was no question of the revisional authority exercising a second power of revision under Rule 78. The order dated 8-2-2002 was not a decision as such but merely a reiteration of the contents of this Courts order which was communicated to the parties concerned. This has been acknowledged by the District Magistrate in his letter dated 15~3-2002. Besides, the revisional authority has revised not only the order of the Additional District Magistrate dated 23-4-2002 which he was competent to do but also set aside the original order of renewal dated 27-10-2001. 11. We are of the view that the High Court was correct in dismissing the writ petition. We are unable to accept the appellants contention that the renewal was not under Rule 9-A. All the authorities proceeded on the basis that the application for renewal was under Rule 9-A. The forms prescribed for renewal also indicate that the caste has to be mentioned in the application for renewal. Besides, if the original grant was unconstitutional, the renewal would also be tainted and invalid. 12. As far as the power of review is concerned, the learned counsel for the respondents are correct in their interpretation of the order dated 8-2-2002. The order dated 8-2-2002 was really a reiteration of the direction to the District Magistrate to comply with this Courts order. The revisional authority had ample jurisdiction to revise the order of the Additional District Magistrate for grant of renewal of the appellants mining lease. As far as the, substance of the order is concerned, we cannot say that the reasoning of the revisional authority is in any way perverse. 13. On the question of the grant of lease to the appellants dehors the provision of Rule 9-A or under Rule 9-A as amended, since admittedly the State Government has already declared the areas under Rule 23(1) of Chapter 4 of the Rules to be leased out by auction, there was in fact no land available for being granted to the appellants. In any event the appellants application was not in any general provision nor under the amended Rule 9-A. In the circumstances of the case we dismiss the appeal without any order as to costs. Needless to say that all interim orders are vacated.