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2015 DIGILAW 1617 (ALL)

Shiv Prasad v. State of U. P.

2015-06-24

ANIL KUMAR, ARUN TANDON

body2015
JUDGMENT Arun Tandon and Anil Kumar, JJ. Learned Standing Counsel represents respondent nos. 1 and 2. Notice on behalf of respondent no.3 has been accepted by Sri Shirish Chandra, Advocate. 2. Respondents pray for and are granted a week's time to file counter affidavit. Rejoinder affidavit, if any, may be filed within three days thereafter. List this matter on 13th July, 2015 when the matters pertaining to grant of lease of minor minerals are to be listed before the Bench of Hon'ble The Chief Justice at Lucknow. 3. Petitioner, before this Court, seeks quashing of the order of the State Government dated 14th February, 2014 as well as the order of the District Magistrate, Siddhartha Nagar dated 21st May, 2014 (Annexure Nos. 4 and 5 to the present writ petition respectively). 4. Facts in short leading to the present writ petition are that respondent no. 3 Mewa Lal is stated to have been granted mining lease for a period of three years i.e. from 4th August, 2009 to 3rd August, 2012. Respondent no.3 could under law make an application for renewal of the lase six months prior to the expiry of the term of the earlier lease. It is stated that the application of respondent no.3 or renewal of the lase remained pending upto 31st May,2012 on which date the State Government came out with a notification under Rule 23 of the U.P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as the "Rules, 1963") declaring all vacant areas in the State of Uttar Pradesh to be available for grant of mining lease under Chapter IV of Rules, 1963 i.e. by auction/e-tendering. 5. A Division Bench of this Court in case of Nar Narayan Mishra Vs. State of U.P. and others reported in 2013 (2) ADJ 166 (DB), had held that with the issuance of the notification dated 31st May, 2012 under Rule 23 of the U.P. Minor Minerals (Concession) Rules, 1963, notifying the vacant areas as now available to be settled only under Chapter IV of the U.P. Minor Minerals (Concession) Rules, 1963, all pending applications in the matter of grant of lease/renewal of lease under Chapter II stood rejected automatically. What logically followed is that subsequent to 31st May, 2012, even if there had been an order of approving the renewal of the term of the earlier lease but actual lease deed had not been executed then such execution could not have been done, inasmuch as on 31st May, 2012, the area covered by such expired leases was vacant within the mining of U.P. Minor Minerals (Concession) Rules, 1963 as nobody had lease-rights over the area on the relevant date i.e. 31st May, 2012. 6. The State Government however came out with another Government Order dated 26th February, 2013 which provided that if orders of approval have been made by the competent authority prior to 5th September, 2012 then such renewal would be valid notwithstanding the judgment in the case of Nar Narayan Mishra (Supra). 7. The correctness of the said Government Order was examined by another Division Bench of this Court in the case of Sukhan Singh Vs. State of U.P. And others (Public Interest Litigation (PIL) No. 31643 of 2014), the Division Bench held as follows: - "Finally, and for the sake of completeness, we would also refer to a Government Order dated 26 February 2013 which refers to the decision of this Court in Nar Narain Mishra (supra) and clarifies that all applications for the grant of mining leases or for renewals which were pending as on 31 May 2012 should be treated as rejected since the provisions of Chapter IV of the Rules came into force. The attention of the Court has been drawn to another Government Order dated 26 February 2013 which states that those applications in respect of which approval has been granted by the competent authority prior to 5 September 2012 would for the purposes of renewal be treated as valid. In our view, the subsequent clarification of the State Government on 26 February 2013 does not and cannot detract from the plain legal position as it emerges once a notification has been issued under Rule 23 of the Rules making the provisions of Chapter IV of the Rules applicable. In our view, the subsequent clarification of the State Government on 26 February 2013 does not and cannot detract from the plain legal position as it emerges once a notification has been issued under Rule 23 of the Rules making the provisions of Chapter IV of the Rules applicable. Once a declaration has been issued in terms of Rule 23(1) of the Rules, the provisions of Chapter IV of the Rules must necessarily apply both to fresh applications for the grant of a mining lease as well as to applications for renewal, including all applications which were pending on the date of issuance of the Government Order. The basic position in law is that the mere filing of an application either for the grant of a lease or for the renewal of a lease does not confer a vested right for the grant or renewal of a lease and, an application has to be disposed of on the basis of the rules as they stand on the date of the disposal of the application. This being the clear position in law which has been enunciated in the judgment of the Supreme Court in State of Tamil Nadu (supra), it would be impermissible to accept the contention of the fourth respondent that its applications were liable to be disposed of, not on the basis of the provisions of Chapter IV but under Chapter II of the Rules. Besides, the acceptance of any such submission would be contrary to the law laid down by a Division Bench of this Court in Nar Narain Mishra (supra) which follows the decision of the Supreme Court." 8. From the law so declared by the Division Benches of this Court, it cannot be disputed that mere filing of an application for grant of lease/ for renewal of a lease will not confer any vested right for grant or renewal of the lease right and that an application has to be disposed of on the basis of the rules as it stands on the date of the disposal of the application. 9. We may clarify that execution of the lease is a condition precedent for right of excavation to be enforced, mere approval for such grant is not sufficient. 9. We may clarify that execution of the lease is a condition precedent for right of excavation to be enforced, mere approval for such grant is not sufficient. Admittedly in the facts of the case the execution of the lease has been affected subsequent to 31st May, 2012 under Chapter II of Rules 1963 on the basis of an order of renewal said to have been passed earlier. 10. In view of the law so declared by the Division Benches referred to above, it is contended that there could not have been any renewal of the lease of respondent no. 3 subsequent to 31st May, 2012. It is therefore, submitted that the order passed by the State Government dated 14th February, 2014 as well as the order of the District Magistrate, Siddhartha Nagar dated 21st May, 2014 are patently illegal and in teeth of the judgment of the Division Benches of the High Court and Apex Court. 11. In view of the aforesaid, we are prima facie satisfied that this is a fit case for grant of interim order. Till the next date of listing operation of the State Government dated 14th February, 2014 as well as the order of the District Magistrate, Siddhartha Nagar dated 21st May, 2014 shall remain stayed and respondent no.3 shall not exercise any rights in terms of the aforesaid orders. Interim Order Granted.