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2011 DIGILAW 219 (UTT)

MAYA DIXIT v. STATE OF UTTARAKHAND

2011-03-27

B.S.VERMA

body2011
JUDGMENT This is delay condonation application no. 1964 of 2010 for condoning the delay in filing the counter affidavit. 2. Application is allowed. Delay is condoned. 3. Counter affidavit filed on behalf of the respondent No. 5 be taken on record. 4. Heard learned counsel for the parties and perused the record. 5. Despite of sufficient opportunities given to the State. No Counter affidavit has been filed by the Additional C.S.C. for the State till today. 6. By means of this writ petition, the petitioner has sought following reliefs :- (i) Issue a writ, order or direction in the nature of certiorari quashing the orders dated 17th November 2008 and 30th December 2008 passed by the Respondents No. 1, as contained in Annexure No. 4 to the writ petition, after summoning the same in original. (ii) Issue a writ order or direction in the nature of certiorari quashing the orders dated 17th August 2009, 12th May 2009 and 6th January 2009 passed by the Respondent No. 3, as contained in Annexure No. 1 to 3 to the writ petition, after summoning the same in original. (iii) Issue a writ, order or direction in the nature of mandamus commanding the Respondent No. 1 to 4 not to extend, renew the period lease of the Respondent No. 5 and 6 in respect of the area in question. (iv) Issue a writ, order or direction in the nature of mandamus commanding the Respondent No. 1 to 4 to restrain the Respondent No. 5 and 6 from undertaking mining operation or lifting of sand, bajri boulder etc. from the area leased out in the favour. (v) Issue a writ, order or direction in the nature of mandamus commanding the Respondent No. 1 to 4 to settle the mineral bearing private measurement land, in accordance with law, as per the provisions of Uttaranchal Minor Mineral Concession Rules, 2001 after adopting the procedure of advertisement. (vi) Issue any other writ, order or direction as may deem fit and proper in the circumstances of the case. (vii) Also award the cost of this petition to the petitioner. 7. According to the petitioner, the lease was granted to respondent Nos. 5 and 6 de-hors the Rule 72(1) of Uttarakhand Minor Minerals (Concession) Rules, 2001 (hereinafter referred to as the ‘Act’). 8. (vii) Also award the cost of this petition to the petitioner. 7. According to the petitioner, the lease was granted to respondent Nos. 5 and 6 de-hors the Rule 72(1) of Uttarakhand Minor Minerals (Concession) Rules, 2001 (hereinafter referred to as the ‘Act’). 8. Learned counsel appearing for the petitioner has contended that in case of Chapter-II, the period of 30 days is applicable and in case of short-term permit the period is seven days. 9. Learned counsel for the petitioner has relied upon the judgment of the Apex Court, A-one Granites Vs. State of Uttar Pradesh and others reported in 2001 (3) SCC 537. The relevant Para 19 of the said Judgment is quoted below :- “The language used in Rule 72(1) on a literal meaning being given would undoubtedly support the contention of Mr. Das and Mr. Sanghi appearing for the appellant that this procedure would not apply when the area in question had been held under a lease not under Chapter II but under Chapter IV. But such an interpretation should be avoided inasmuch as the very purpose for which Rule 72 has been engrafted in the Rules will totally get frustrated. The object of having such provision is transparency in the matter of granting mining lease and restrict any underhand dealing with the minerals by the permit-granting authority. The object of notifying the availability through a notice by the District officer is to bring it to the notice of the public at large, so that an interested applicant can make an application and such application could be considered on its own merit, when more than one applications are received in respect of the same area. The lease under Chapter II of the Rules could be granted for a period not exceeding ten years, as provided in sub-rule (1) of Rule 12 and under sub-rule (2) of Rule 12, but if the State Government is of the opinion that it would be necessary in the interest of mineral development it may grant the lease for any period exceeding ten years but not exceeding fifteen years. The Rules also contemplate renewal of such lease. Rule 19(2) empowers the State Government to determine any lease on the grounds indicated thereunder, after giving the lessee a reasonable opportunity of stating his case. The Rules also contemplate renewal of such lease. Rule 19(2) empowers the State Government to determine any lease on the grounds indicated thereunder, after giving the lessee a reasonable opportunity of stating his case. The area which was being operated upon the basis of a lease obtained under Chapter II when becomes available for regrant if the prescribed procedure under Rule 72 is not followed, then it may lead to favouritism and bias, ultimately resulting in corruption of the permit-granting authority. It is to prevent such abuse the legislature has brought into the Rules, the procedure prescribed under Rule 72 the duty of notifying the availability of the area by the District Officer. In case of auction-lease, it is not necessary, since the procedure prescribed for grant of auction-lease in Rule 27 itself indicates that the District Officer or the Committee authorised is duty-bound to at least give a notice 30 days before the date of auction in the manner indicated under the Rules by providing the date, time and place of auction and if for any reason, the auction is not completed on the notified date, then a fresh auction could be held after giving a shorter notice of at least seven days. Thus the procedure followed for grant of lease by auction as provided under Rule 27 or tender as provided under Rule 27-A or auction-cum-tender, as provided under Rule 27-B is itself sufficient notice to the public to enable them to participate in the auction/tender/auction-cum-tender and question of any clandestine dealing in such case would not arise. But in a case when the area was held under auction/tender/auction-cum-tender under Chapter IV and the State Government withdraws the area from the said procedure, whereafter provisions of Chapter II, the normal procedure for granting lease becomes applicable as in the case in hand, then if Rule 72 is interpreted in the manner, as contended by the learned counsel for the appellant, it would frustrate the purpose of transparency and openness engrafted in Rule 72 and such an interpretation will be against the legislative intent. It is a cardinal principle of construction that the courts must adopt a construction which would suppress the mischief and advance the remedy. In other words, the court must adopt a purposive interpretation of the provisions under consideration. So construed, it is difficult for us to accept the contention of Mr. It is a cardinal principle of construction that the courts must adopt a construction which would suppress the mischief and advance the remedy. In other words, the court must adopt a purposive interpretation of the provisions under consideration. So construed, it is difficult for us to accept the contention of Mr. Das appearing for the appellant that Rule 72 has no application to the case in hand merely because the area in question had been held by the previous lessee for some period under auction/tender basis under Chapter IV, particularly when on 30.03.1995 the District Magistrate withdrew the area held under auction/tender system to the normal procedure of grant of mining lease under Chapter II w.e.f. 1.4.1995.” 10. In the case at hand, the shot term permit was granted to the respondent Nos. 5 and 6 on 13.11.2007 and thereafter on the application of the respondent Nos. 5 and 6, the respondent No. 1 i.e. Secretary has granted one year lease to the respondent Nos. 5 and 6 on 30.12.2008. The order of the Secretary has been annexed as annexure No. CA-2 to the Counter affidavit filed by respondent No. 5. 11. By a perusal of the order, it shows that the lease was granted from 29.12.2008 for a period of one year only and thereafter there is no mention in the counter affidavit, that the lease was further renewed. 12. Since, the lease period had already been elapsed and the respondents have already carried out the mining activities. No useful purpose has been served to pass any order against the respondents at this stage. 13. It was next contended that the lease could be granted even after the policy came into force formed by the State of Uttarakhand as has been held in Doiwala Sehkari Shram Samvida Samiti Ltd. Vs. State of Uttaranchal and others reported in 2007 Vol. 11 SCC 641. The relevant Para 18 of the said judgment is quoted below :- “In Para 2.5 provisions have been made for sanction of mining/collection leases/short-term mining licenses on private “NAAP” land under which short-term mining leases/temporary mining licenses have been sanctioned in the different districts in Uttaranchal State. In our view, no monopoly of mining of minerals in favour of the government corporations/departments has been created, nor have the fundamental rights as enshrined under the Constitution been violated. In our view, no monopoly of mining of minerals in favour of the government corporations/departments has been created, nor have the fundamental rights as enshrined under the Constitution been violated. As already noticed, by Government Order No. 3498 dated 17.10.2002 in Para 2.5 there is a provision for grant of licence permitting private parties for mining of the minerals and nowhere the general and full restriction has been imposed. In the instant case, the State Government has exercised its right as conferred under Section 87 of the U.P. Reorganisation Act, 2000 for the first time and the U.P. Sub-Mineral Regulations (Exemption), 1963 were adapted and in sequence of which the Government’s Order No. 1187 dated 30.4.2001 has been issued. The newly created Uttaranchal State in view of making mineral policy more effective and developing for ensuring the mining/collection work of sub-minerals available in the State in a scientific manner while keeping the environment preserved and for ruling out the possibility of monopoly in mining area covered with the sub-minerals as far as practicable, provisions to sanction river wise mining/collection leases to the government corporations so that better coordination and control might be ensures. The Mineral Policy, 2001 of Uttaranchal State has been declared by the Government Order dated 30.4.2001 under which in the forest areas, keeping in view the forest conservation, provisions have been made for getting the work of mining and collection of the sub-minerals, done through Uttaranchal Forest Development Corporation. The area in question applied for by the appellant is concerned with forest area.” 14. It was further contended by the learned counsel for the petitioner that the Division Bench of this Court in Special Appeal No. 218 of 2009 wherein the review application was filed by the Garhwal Mandal Vikas Nigam, (Review Application No. 1056 of 2009). After hearing the review application in SPA No. 218 of 2009 dated 03.12.2009 was clarified and it has been held in para 5 “that the State Government shall in the first instance, endeavour to grant lease for mining minerals in terms of the policy, instructions dated 30.4.2001 as amended on 17.10.2002 and in case a viable lease does not emerge from its efforts, only then the public notice contemplated in the order passed by this Court on 03.12.2009”. 15. 15. I have perused the judgment of the Apex Court and in view of the Apex Court, the Rule 72(1) is also applicable in case of the Chapter-II and 30 days notice is mandatory and in view of the judgment rendered in the Special Appeal, if the State Government does not choose to give the lease to the Corporation as per the policy and prefer to give to private individuals then the public notice contemplated under Rule 72(1) of the Act is to be given. The provisions be also complied with in case of short term permit/renewal of lease/fresh grant of lease. 16. With the said direction and observation, the writ petition is disposed of accordingly. 17. All pending applications stand disposed of accordingly.