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2006 DIGILAW 2097 (ALL)

Jagdish v. State Of U. P.

2006-08-25

B.B.AGARWAL, PRADEEP KANT

body2006
JUDGMENT : Pradeep Kant, B.B. Agarwal, JJ. Heard Sri Akhilesh Kalra for the petitioner. Sri A.K. Verma, Additional Chief Standing Counsel for the State and Sri Uttam Kumar Pathak for the respondent No. 4. 2. This writ petition by a person who is engaged in mining activities and is aspiring for the mining lease of the area in question, has been filed questioning the jurisdiction of the State Government to renew the lease of the respondent No. 4. Chahat Ram, who was granted lease in terms of the Government order dated 25.5.1995 under para 5 (3) of the said order for a period of five years with effect from 14.6.2001 and had applied for renewal under the provisions of Rule 6A of the U.P. Minor Mineral (Concession) Rules, 1963 (hereinafter referred to as Rules of 1963). 3. The petitioner had moved a representation/objection against the application for renewal of the lease by the petitioner before the State Government but since he was not being heard, therefore, he filed the present petition for a direction to be issued to the State Government for giving him a hearing before renewal of the lease was considered and granted. A prayer was also made that the renewal should not be allowed to be made and the area, in question, be directed to be settled afresh as per Government order dated 16.10.2004 read with relevant provisions of Rules of 1963. 4. During the pendency of the writ petition the State Government passed an order on 7.8.2006 allowing the renewal of the lease for a period of further three years. The lease had come to an end on 13.6.2006 which was initially granted for five years in 2001 and by virtue of the aforesaid renewal, the lease period stood extended up to 13.5.2009. By means of the amendment application the aforesaid order dated 7.8.2006 has also been brought under challenge. This amendment has been allowed. 5. Contesting respondent namely, respondent No. 4 had filed counter-affidavit opposing the writ petition and the prayers made, justifying the renewal of the lease by the State Government. 6. By means of the amendment application the aforesaid order dated 7.8.2006 has also been brought under challenge. This amendment has been allowed. 5. Contesting respondent namely, respondent No. 4 had filed counter-affidavit opposing the writ petition and the prayers made, justifying the renewal of the lease by the State Government. 6. The State despite opportunity being granted has not filed any counter-affidavit and prayer made by Sri A.K. Verma, learned Additional Chief Standing Counsel for grant of further time need not detain us from proceeding with the hearing of the writ petition for the simple reason that the controversy involved in this case stands squarely covered by a judgment of this Court delivered on 21.8.2006 by us in Writ Petition No. 970 of 2006 (MB), Kulwant Singh and Anr. v. State of U.P. and Ors. and also by two other Division Bench judgments, namely, Jagmohan Dutt Sharma Vs. State of U.P. and others, (1998) 1 AWC 779 (1998) 2 AWC 1396 and Vijai Bahadur Vs. State of U.P. and others, Besides, the issue in question, is simply a pure legal question which does not require any counter-affidavit to be filed by the State on facts and, therefore, we have given opportunity to Sri A.K. Verma, learned Additional Chief Standing Counsel for advancing arguments on legal issue, namely, whether a lease granted under the provisions of para 5 (3) of the Government order dated 25.5.1995 can be renewed under Chapter II, Rule 6A of the 1963 Rules or not. 7. This is the only issue which requires to be decided. Hence for this controversy the State's counter-affidavit would be of no assistance particularly in view of the admission of the respondent No. 4 in his counter-affidavit that the lease in question, was granted under the aforesaid provisions of the Government order dated 25.5.1995. 8. In the counter-affidavit filed by contesting respondent in paras 3 and 6 the following statements of fact have been made: 3. That in reply to contents of paragraph 4 of the writ petition, it may be stated here that the deponent was granted mining lease in the area in question. 8. In the counter-affidavit filed by contesting respondent in paras 3 and 6 the following statements of fact have been made: 3. That in reply to contents of paragraph 4 of the writ petition, it may be stated here that the deponent was granted mining lease in the area in question. This area was first discovered by the deponent and in pursuance of the Government order dated 25.5 1995 (paragraph 5 (3)) the mining lease was granted to the deponent and another ground for grant of mining lease to the deponent was that in this area for the first time due to change in river Yamuna sand was accumulated. 6. That it may be stated here that the mining lease was granted to the deponent on 14.6.2001 in pursuance of the provision contained in paragraph 5(3)(2) of the Government order dated 25.5.1995. True copy of the order granting mining lease to the deponent on 14.6.2001 along with Government order dated 25.5.1995 is being filed herewith and the same is being marked as Annexures-1 and 2 to this affidavit. 9. The order sanctioning lease dated 14.6.2001 has also been annexed which shows that the lease was granted to the petitioner since he discovered said area under the aforesaid Government order. That being so, there is no dispute that the lease in question, was granted under the Government order aforesaid and the State could not have improved the nature of grant of lease even by filing a counter-affidavit. 10. The question as to whether such a lease can be renewed or not has been argued in full length by the counsel for the parties on the basis of the Rules and relevant law. 11. Sri Uttam Kumar Pathak appearing for the respondent No. 4 made a feeble and half hearted attempt in his argument to bring initial grant of his lease within the scope of Chapter II of the Rules of 1963 and on this premise he urged that since the initial grant of lease is referable to Chapter II, therefore, lease can very well be renewed under Rule 6A. He has also argued that even in the Government order dated 25.5.1995 under which the lease was granted to the petitioner the provision of renewal has been prescribed and therefore, also, the State Government was fully competent to renew the aforesaid lease under the provision of said G.O. of 1995. 12. He has also argued that even in the Government order dated 25.5.1995 under which the lease was granted to the petitioner the provision of renewal has been prescribed and therefore, also, the State Government was fully competent to renew the aforesaid lease under the provision of said G.O. of 1995. 12. It has also been urged by him that the sanction order passed by the D.M. on 14.6.2001 since it recites about the Rules of 1963 in the opening sentence, therefore, it can be presumed that the lease was granted under Chapter II and, therefore, was liable to be renewed also under the same chapter. 13. In regard to the plea that lease as granted under para 5 (3) of Government order dated 25.5.1995. whether can be renewed under Rule 6A, it would be sufficient to say that this controversy has already been concluded by the aforesaid three judgments and no argument has been advanced nor any material has been placed before us in this case so as to take a different view. In the case of Kulwant Singh (supra) it has been held that a lease granted under para 5 (3) of the aforesaid G.O. dated 25.5.1995 cannot be renewed under Rule 6A of Chapter II. 14. A perusal of paragraph 5 (3) of the G.O. makes it abundantly clear that the State Government was of the view that there was no provision under the Rules 1963, for granting lease, in respect of the area, which is newly discovered. Hence it directed that the principle of 'First come First serve' be followed with respect to the area which has been discovered by any person. Such a lease was, therefore, to be granted independent of those Rules on the aforesaid principle. This manner of granting lease on the basis of 'First come and first serve was introduced in the aforesaid G.O. as the State Government was of the view that the Rules of 1963 do not cover such area which is newly discovered. 15. Rule 3 of the Rules of 1963 reads as under: 3. Mining operations to be under a mining lease or mining permit. 15. Rule 3 of the Rules of 1963 reads as under: 3. Mining operations to be under a mining lease or mining permit. - (1) No person shall undertake any mining operations in any area within the State of any minor mineral to which these rules are applicable except under and in accordance with the terms and conditions of a mining lease or mining permit granted under these rules: Provided that nothing shall affect any mining operations undertaken in accordance with the terms and conditions of a mining lease or permit duly granted before the commencement of these rules. (2) No mining lease or mining permit shall be granted otherwise than in accordance with the provisions of these rules. 16. The aforesaid rule provides that no mining can be allowed in any area covered by the Rules unless lease or mining permit is granted under the Rules. Sub-clause (2) specifically prohibits the grant of lease of mining permit otherwise than in accordance with the provisions of these Rules. Thus, no area can be let out on lease unless a lease or mining permit is granted under the Rules of 1963 permitting the excavation of minor minerals. 17. Initially lease having not been granted under the aforesaid Rules, 1963, it cannot be subjected to renewal under any of the provisions of 1963 Rules in particular Chapter II. 18. Argument of Sri Pathak that grant of lease is referable to Chapter II of the 1963 Rules is complete misreading of the order passed by the District Magistrate on 14.6.2001. The District Magistrate has only in the opening sentence of the order has recited that on the application moved under chapter II for the grant of lease on 31.8.1998, the lease has been granted to him under para 5 (3) of the Government order dated 25.5.1995. This specific recital and the provision under which the Collector had granted the lease does not call for any further interpretation for holding that the lease was granted to the respondent No. 4 under the para 5 (3) of G.O. dated 25.5.1995. 19. In the counter-affidavit of respondent No. 4 in para No. 3 in unequivocal terms (quoted above) it has been stated that the lease was granted to him on the area being discovered by him. 19. In the counter-affidavit of respondent No. 4 in para No. 3 in unequivocal terms (quoted above) it has been stated that the lease was granted to him on the area being discovered by him. Likewise in para 6 of the counter-affidavit he has again reiterated that the lease had been granted to him on 14.6.2001 in pursuance of the provisions contained in paragraph 5 (3) of the Government order dated 25.5.1995. In view of the aforesaid specific admission of respondent No. 4 coupled with the recital made in the sanction of lease it is no more open for the respondent No. 4 to assert that the initial grant of lease was not under the aforesaid provision of Government order but was made under the provisions of Chapter II of 1963 Rules. 20. Apart from the aforesaid facts, the area in question being newly discovered by the petitioner was never advertised, nor the provisions of Rule 72 were ever complied with, which necessarily concludes that the lease was not granted under any of the provisions of Rules of 1963, but under the Government order of 1995 para 5 (3). 21. In regard to the plea that the Government order dated 25.5.1995 itself speaks about the renewal of lease granted under the said order, therefore, irrespective of fact that whether the lease of the petitioner could be renewed under Rule 6A of 1963 Rules or not, was liable to be renewed and has rightly been renewed by the State Government in terms of the aforesaid Government order, suffice it would be to mention that whole reading of the Government order would reveal that the aforesaid argument is again based on misreading of the Government order. The provision of renewal of lease has been mentioned in the said Government order relating to all those leases which were granted under the provision of Chapter II of 1963 Rules after due publication by following provisions of Rule 72. The grant of lease on the basis of 'First come first serve' with respect to the newly discovered area to the person who discovers the area is an exception clause in the entire scheme of the Government order in para 5 (3). The grant of lease on the basis of 'First come first serve' with respect to the newly discovered area to the person who discovers the area is an exception clause in the entire scheme of the Government order in para 5 (3). Once the State Government has already found that the provision for grant of lease of the newly discovered area by any person is not provided under the 1963 Rules and therefore it has to be granted on following the principle of "First come First serve' it establishes beyond doubt that this grant can in no way be referable to Chapter II of Rules 1963 which do not contain any such criteria for the grant of lease. 22. The procedure prescribed under the aforesaid Rules is entirely different which necessarily requires the District Magistrate to follow the provisions of Rule 72 with a view to minimize the corruption with the permit granting authorities and also to give wide publicity so that all eligible and willing persons can apply when a lease is to be granted with respect to a particular area In the matter of grant of lease under para 5(3) of the G.O. dated 25.5.1995, there is no requirement of making any publicity and there is no right or opportunity to any other eligible and willing person to participate in the matter of grant of lease of newly discovered area had rather the person who discovered the area has been given not only the preference but an exclusive right of having the lease. 23. This can also be seen with another angle, namely, when a person discovers a new area he would be the only person who has the knowledge of such an area and, therefore, he would be the first person of the newly discovered area to approach the D.M. In such a situation the principle of First come First serve' also loses its importance as normally there would be no other person who would be in a position to put his claim after the area has been discovered by any person. Thus, it creates a sort of monopolistic right in favour of the person who discovers the area for granting lease without making it open for other persons. 24. Thus, it creates a sort of monopolistic right in favour of the person who discovers the area for granting lease without making it open for other persons. 24. In the instant case the petitioner had already enjoyed the lease for five years and now the said renewal permits him to have the benefit of the lease for another period of three years. 25. Further argument has been raised by Sri Pathak that though in the Government order dated 27.8.2002 prohibition has been made that no lease be granted on the basis of preferential right to the discoverer of new area but the word "Khoji" (discoverer) has not been deleted nor the said Government order can be treated to be effective with retrospective effect as it is prohibitive in nature. Therefore, the petitioner's lease has rightly been renewed. 26. In support of the aforesaid argument he has also relied upon the Rule 32 of Chapter V of the Rules, 1963 which reads as under: 32 Discovery of other minerals. - (1) The lessee shall report to the State Government the discovery in the leased area of any mineral not specified in the lease, within thirty days of such discovery. (2) If any mineral not specified in the lease is discovered in the leased area, the lessee shall not win and dispose of such mineral unless a separate lease is obtained therefor. 27. Interpreting the aforesaid Rule the learned Counsel submitted that the discoverer of new area is permitted under the Rules. to get the area discovered allotted in his favour and such a lease if granted would be referable to Rules 1963 and thus deserves to be renewed under Rule 6A. 28. The argument is wholly misconceived based on absolute misreading of the aforesaid Rule. The said rule provides that the lessee shall report to the State Government the discovery in the leased area of any mineral not specified in the lease within thirty days of discovery. In Sub-rule (2) clear embargo has been placed upon the right of the lessee to win and dispose of such mineral which he discovers and which is not specified in his lease unless a separate lease is obtained. In Sub-rule (2) clear embargo has been placed upon the right of the lessee to win and dispose of such mineral which he discovers and which is not specified in his lease unless a separate lease is obtained. Cumulative effect of Sub-rules (1) and (2) is that if any lessee discovers any mineral which is not specified in his leased area, he cannot win and dispose of such mineral unless a separate lease is obtained therefor. 29. Once the lease is to be obtained under the Rules of 1963, the mandatory procedure prescribed and referred to above in the judgment has necessarily to be followed. Thus, according to Rule 32 also the Government order dated 25.5.1995 cannot allow in any case the renewal of the lease. We clarify that we have not considered the right of the State Government to grant even initial lease on the aforesaid principle 'First come First serve' ignoring the Rules 1963. 30. Even assuming that if the Government order of 25.5.1995 or any other subsequent Government order prescribed for the renewal of the lease granted under para 5(3) of the Government order dated 25.5.1995, there still would be no authority with the State Government to renew any such lease. The reason being that the State shall have no authority to carve out a new procedure for renewal of the lease which otherwise does not find mention in the Statutory Rule, Any Government order which militates against statutory provision and statutory rule providing grant of lease and renewal therefore cannot be made effective nor can be applied or acted upon as it would amount super session of the Statutory Rules by a Government order. 31. For the reasons recorded in the judgments of Kulwant Singh, Jagmohan Dutt Sharma and Vijay Bahadur (supra,) coupled with the additional reasons given hereinabove we are of the view that a lease granted under para 5 (3) of the Government order dated 25.5.1995, cannot be renewed, either under the provisions of the aforesaid G.O. or under the Rules of 1963. 32. No other point has been pressed. 33. The order passed by the State Government dated 7.8.2006 renewing the lease in favour of respondent No. 4, thus is liable to be set aside and is hereby quashed. 32. No other point has been pressed. 33. The order passed by the State Government dated 7.8.2006 renewing the lease in favour of respondent No. 4, thus is liable to be set aside and is hereby quashed. We further issue a writ of mandamus directing the District Magistrate Ghaziabad to initiate proceedings following the provisions of Rule 72 for the grant of lease expeditiously as per his discretion. The writ petition is allowed. Costs easy.