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2008 DIGILAW 1019 (PAT)

Mahendra Prasad v. State Of Bihar

2008-07-25

AJAY KUMAR TRIPATHI

body2008
Judgment Ajay Kumar Tripathi, J. 1. Petitioner wants quashing of the order dated 15.9.2006 issued by respondent No. 5 by virtue of which the lease/licence of mining of the petitioner has been brought to an end after expiry of five years, as an action not only arbitrary but de hors the lease agreement contained in annexure-1. 2. According to petitioner he entered into a lease agreement between the respondent State of Bihar and him for carrying out mining operation of stones for a period of 10 years vide an agreement dated 13.9.2001. A copy of the agreement has been annexed as Annexure-1 to the writ application as a proof of the said contention. The petitioner has therefore continued to carry out his mining operation in terms of the agreement. He suddenly received a communication dated 15.9.2006 contained in annexure-2 stating that his lease agreement has come to an end on expiry of five years on 12.9.2006. He was directed to surrender the various papers and also deposit the requisite royalty and outstanding dues against him. He approached the Collector, Sheikhpura through his application contained in annexure-3 protesting the action taken against him. He categorically asserted that since lease agreement has been executed for a period of 10 years which will only expire on 11.9.2011, the action of the Assistant Mining Officer was totally misplaced. 3. A counter affidavit has been filed by the respondents explaining the situation. They have justified issuance of annexure-2 against the petitioner by stating that on an application made by the petitioner on 17.7.1999 respondent authorities after due verification decided to grant lease for quarrying of stones over 1.55 acres of land for a period of 5 years. A letter contained in Memo No. 139 dated 24.1.2001 has been brought on record as the proof that the lease was sanctioned for a period of 5 years only. They stated that despite a clear cut decision taken in the file at every level to grant lease to the petitioner for a period of five years either through a clerical error or may be even mischief the period of 10 years was incorporated in the lease agreement. Not only this, by virtue of an amendment brought about by the State Government any lease of such kind could only be granted for a period of 5 years. This amendment has been brought about on 17.4.2001. Not only this, by virtue of an amendment brought about by the State Government any lease of such kind could only be granted for a period of 5 years. This amendment has been brought about on 17.4.2001. Even for the sake of argument if it is accepted that the lease agreement shows 10 years period the contract signed on 13.9.2001 after coming of the amendment in breach of the statutory provisions would not be binding upon the respondents. It is further contended that section 19 of the Mines and Minerals Concession ( Development and Regulation) Act, 1957 categorically states that any licence and mining lease granted in breach of the provisions of the statute renewed or acquired in contravention of the Act or the Rules shall be void. Section 19 is reproduced hereunder for ready reference. 19. Prospecting licences and mining leases to be void if in contravention of Act. - Any prospecting licence or mining lease granted, renewed or acquired in contravention of the provisions of this Act or any rules or orders made thereunder shall be void and of no effect. 4. It is submitted therefore by the respondents that in view of the above quoted provisions of law read with amendment brought about to Rule 9A of the Bihar Minor Mineral Concession (Amendment) Rule dated 17.4.2001 no lease beyond 5 years could be granted to any lessee. 5. Learned Counsel appearing on behalf of the petitioner then submits that some sanctity must be accorded to an agreement entered between the parties. If the respondent authorities granted him the benefit of a lease for 10 years the same cannot be repudiated and annulled in such a casual manner. In the normal course of things as a proposition of legal principle and the contention of the. petitioner would be correct but whether the said principle can be applied in the given state of facts and special law is yet another issue. 6. The Court has gone through the evidence which has been brought on record by the respondents. At various stages of decision making recommendation in favour of the petitioner with regard to the lease in question had fixed life span of 5 years. 6. The Court has gone through the evidence which has been brought on record by the respondents. At various stages of decision making recommendation in favour of the petitioner with regard to the lease in question had fixed life span of 5 years. The amended rule under Rule 9A of the Bihar Minor Mineral Concession Rules which has come into effect before lease agreement was signed lays down statutory period of 5 years and in addition to that, on plain reading of section 19 of the Mines and Minerals Concessions (Development and Regulation) Act clearly lays down the ambit of Such leases. If the lease agreement in question was executed for a period of 10 years in breach of the statute then the lease agreement will have to be read down to bring it in conformity with the statute. The Court would not like to delve in the area as to how the lease for 10 years came to be executed when all along in the decision making process the records show that the authorities had only approved grant of lease for 5 years. 7. On a plain reading of the statutory provisions indicated above, as well as the material brought on record, the Court is of the opinion that the communication contained in annexure-2 is not misplaced and despite 10 years period indicated in annexure-1 the same should be read down to mean only 5 years as no lease for such kind can be granted or issued to any lessee for more than 5 years. The writ application therefore is dismissed as being devoid of any merit.