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2004 DIGILAW 117 (ALL)

RAM PAL ALIAS RAMPA v. STATE OF U. P.

2004-01-27

M.KATJU, POONAM SRIVASTAVA

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B. K. ROY, D. R. CHAUDHARY. JJ. ( 1 ) HEARD learned counsel for the parties. ( 2 ) THE writ petition has been filed challenging the Circular dated 13-6-2001 issued by the State of U. P. through Secretary Industrial Development Government of U. P. and order dated 25-4-2001 (Annexure 4 to the writ petition) whereby the A. D. M. Fatehpur had renewed the licence in favour of the contesting respondent No. 4 granting lease on preferential basis. ( 3 ) COUNTER and rejoinder affidavits have been exchanged between the parties and are on record. ( 4 ) THE petitioner has challenged the orders on the ground that Rule 9-A has been held to be ultra vires by a Full Bench of this court in Writ Petition" No. 256 (MB) 1997. Ram Chandra v. State of U. P. and other connected writ petitions, and hence no mining lease can be granted by the respondents under the U. P. Minor Minerals (Concession) Rules, 1963. ( 5 ) RULE 9-A of the U. P. Minor Minerals (Concession) Rules, 1963 was inserted by the 20th Amendment Rules, 1994, whereby preferential right was granted to certain socially and educationally backward castes for excavating sand etc. The Full Bench quashed the aforesaid rule rejecting the contention of the State of U. P. that the Rule were effected to serve the cause of social order for the promotion of welfare of the people as contained in Article 39 of the Constitution of India. It was observed by the Full Bench that the M. M. R. D. Act pertaining to conservation of minerals and production/ exploitation of the minerals can not be ignored. The observation of the Full Bench was that the Government can not under Clause (b) of Article 39 issue an order, as has been done by the State Government in conflict with the provisions of Section 15 of M. M. R. D. Act. A true copy of the Full Bench decision is Annexure-1 to the petition. The Full Bench held that Rules 9a and 53a are irrational, arbitrary, unreasonable and discriminatory. ( 6 ) THE contesting private respondents were granted mining lease on preferential basis under Rule 9-A of the U. P. Minor minerals (Concession) Rules 1963. However, after the decision by the Full Bench, a ban was imposed by the State Government in granting lease under the Rules. ( 6 ) THE contesting private respondents were granted mining lease on preferential basis under Rule 9-A of the U. P. Minor minerals (Concession) Rules 1963. However, after the decision by the Full Bench, a ban was imposed by the State Government in granting lease under the Rules. By virtue of government Order dated 13-6-2001, the state Government realized certain difficulties and lifted the ban on the renewal of the leases granted prior to 27-3-2001. The Government Order in its Clause 3 has clearly granted permission for renewal of the licence even to such lease holders who were granted lease on. preferential basis under Rule 9-A of the Rules, and finally the authority concerned renewed the lease in favour of Ganga Dayal, respondent No. 4 vide order dated 25-4-2001 which is also under challenge. The present writ petition was filed challenging the Government order dated 13-2-2001 and consequential order 25-4-2001 passed by the concerned authority. An interim order was passed by this Court staying the two orders which are still operating in the present writ petition. ( 7 ) IT is relevant to point out that a new development had taken place during the pendency of the writ petition. An application was moved allegedly on behalf of the petitioner for withdrawing the writ petition as not pressed and an order was passed on 8-2-2002 dismissing the petition as not pressed. Subsequently on a recall application the Division Bench of Hon. B. K. Roy and Hon. D. R. Chaudhary. JJ. dismissed the Civil Misc. Recall Application No. 3538 of 2002 on 5-4-2002, Aggrieved, petitioner approached the Apex Court challenging the orders dated 8-2-2002 and 5-4-2002. The apex Court set aside the two orders and remanded the case of decision on merit. Hence the present writ petition is being decided finally. ( 8 ) THE stand of the State Government is that the Government Order dated 13-6-2001 was issued on account of the reason that despite the Full Bench holding that no lease can be granted on a preferential basis under Rule 9-A as it has been held to be ultra vires yet the Full Bench had not stopped the renewal of the leases granted earlier. In clause 3 of the Government Order it has specifically been stated that the lease which has already been granted earlier, can be renewed and there is no restriction in renewal of such lease granted prior to 27-3-2001. As a result of the Government Order dated 13-6-2001, the order dated 25-4-2001 was passed in favour of Ganga Dayal son of Burail, respondent No. 4. ( 9 ) A Division Bench of this Court in Civil misc. Writ Petition No. 44196 of 2001 reported in 2002 (46) All LR 475 : (2002 All LJ 579) Katwaru v. Special Secretary Industrial, has considered the question and legality of the renewal of such lease which was granted earlier on preferential basis under Rule 9-A of the Rules. The Division Bench clearly held that since Rule 9-A has been struck down in favour of one who had got a mining lease on preferential basis under Rule 9-A of the rules such person can not claim renewal of his lease under Rule 6-A. The order of the supreme Court to maintain status-quo in the S. L. P. granted against the decision of the Full Bench will in no way benefit such claimants who claim renewal on preferential basis. The effect of the order of statusquo will only be limited to the extent that any one who had been granted lease under rule 9-A of the Rules or granted renewal under Rule 9-A at the time when the order of the status-quo was passed, would continue to have the right to excavate the minerals even after expiry of the lease on renewal. The order maintaining status-quo does not mean that lessee could continue to excavate the minerals till the expiry of the lease. Paragraph 5 of the Judgment of the Katwaru (2002 All LJ 579) (supra) is as under :"the petitioner claimed preferential right for grant of a mining lease under Rule 9-A of the Rules as he belongs to a caste which is enumerated in explanation appended to sub-rule 1 thereof. He was granted a mining lease on a preferential basis on 24-10-1998 for a period of 3 years. The period of his lease expired on 23-10-2001. He was granted a mining lease on a preferential basis on 24-10-1998 for a period of 3 years. The period of his lease expired on 23-10-2001. Prior to the expiry of the lease, the Full Bench of this Court by the judgment and order dated 27-3-2001 struck down Rule 9-A of the rules as being violative of the Constitution of India and the provisions of Mines and Mineral (Regulation and Development) Act 1957. In view of this decision, the petitioner cannot claim any preferential right to get a mining lease. Rule 6-A of the Rules no doubt provides for renewal of a mining lease but the effect of renewal of a mining lease which had been granted on preferential basis would be that a right acquired under Rule 9-A on preferential basis would be perpetuated or get a fresh lease of life for a further period of 3 years. The copy of the order passed by the district Officer on 1-10-2001 shows that the renewal had been granted on the same terms and conditions on which the original lease had been granted and in addition some other conditions of minor nature have been imposed. The effect of the renewal would be that the mining ore would continue to be operated by a person on the basis of a preferential right with effect from 24-10-2001, though the very foundation of a preferential right as provided under Rule 9-A of the Rules has disappeared after the decision of the Full bench on 27-3-2001 when the said provision was declined to be ultra vires. Therefore, any one who had got a mining lease on preferential basis under Rule 9-A of the rules cannot claim renewal of his lease under Rule 6-A after the decision of the Full Bench. " ( 10 ) A perusal of the counter affidavit filed by Ganga Dayal, respondent No. 4 will show that he claimed his renewal only on the basis of the order of status-quo of the Apex Court, whereas the Division Bench in the case of Katwaru (2002 All LJ 579) (supra)has clearly clarified the position and as such the contesting respondent has no right to continue the lease on the basis of order dated 25-4-2001. The order has not been defended by the Standing Counsel in his counter affidavit. The order has not been defended by the Standing Counsel in his counter affidavit. The only stand taken in paragraph 2 of the counter affidavit is relating to the government orders dated 30-3-2001/ 4-4-2001 whereby all the District Magistrates were stopped from granting mining lease. ( 11 ) THE provisions of Rule 9 and Rule 23 of the Rules of 1963 are still available to the State Government to grant mining lease as and when it is necessary. In the circumstances, the orders dated 25-4-2001 and the renewal of the lease on the basis of Government Circular dated 13-6-2001 in favour of such persons who were granted mining lease on preferential basis under Rule 9-A are quashed. The writ petition is allowed. There shall be no order as to cost. Petition allowed. .