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2016 DIGILAW 760 (ALL)

MOHAMMAD YUNUS HASAN v. STATE OF U. P.

2016-03-02

ARUN TANDON, HARSH KUMAR

body2016
JUDGMENT By the Court.—This writ petition has been filed by Mohammad Yunus Hasan for a writ of mandamus commanding the State authorities to extend the mining lease of the petitioner dated 29.1.2006 for a further period of 2 years 10 months and 12 days commencing from 29.1.2016 and not to create any third party rights in respect of mining area in question for this period. 2. Sri W.H. Khan, learned Senior Counsel assisted by Sri J.H. Khan, learned counsel for the petitioner submitted that in the alternative the petitioner may be provided compensation for the loss which has been caused to him because of illegal curtailment of the period of lease, which was granted in favour of the petitioner, because of the wrongful action of the State authorities. 3. Facts in short leading to the writ petition are as follows : Petitioner before this Court was granted a lease for excavation of minor minerals on 29.1.2006 in accordance with the provisions of U.P. Minor Minerals (Concession) Rules, 1963. The lease was for a period of 10 years. A show-cause notice was issued to the petitioner on 11.9.2008, alleging therein that the petitioner has done illegal mining to the extent of 756 cubic meters. Petitioner submitted a reply. Respondent No. 4 i.e. the Collector, Banda made an order on 26.2.2009, cancelling the lease of the petitioner. Not being satisfied, the petitioner filed an appeal before the Commissioner, which appeal is stated to have been allowed vide order dated 24.1.2011 and the matter was remanded to the Collector to decide afresh. 4. After remand, by means of the order dated 1.7.2011, the Collector Banda held that the charge of illegal mining was not established. However, the petitioner was required to deposit a sum of Rs. 18,144/-, as royalty with the State Government. The petitioner is stated to have complied with the order, by depositing the said amount on 4.11.2011. 5. The petitioner on 2.12.2011 made an application for extending the term of the lease for the period it stood curtailed under the earlier order of the District Magistrate. No order was passed on his said application. The petitioner therefore approached the Commissioner. The Commissioner is stated to have passed an order holding therein that the appeal was not maintainable. The order so made by the Commissioner is not under challenge before us. No order was passed on his said application. The petitioner therefore approached the Commissioner. The Commissioner is stated to have passed an order holding therein that the appeal was not maintainable. The order so made by the Commissioner is not under challenge before us. However, the petitioner made an application before the State Government with reference to the judgments of the Apex Court in the case of Beg Raj Singh v. State of U.P. and others, AIR 2003 SC 833 , and in the case of J.P. Yadav v. Kanhaiya Singh and others, being Civil Appeal No. 8621 of 2013 (arising out of S.L.P.(C) No. 16316 of 2006) decided on 19.9.2013 for extension of the period of lease as per the prayer noted above. 6. Counsel for the petitioner submits that the application of the petitioner for grant of extension of the term of lease, be directed to be considered and granted in terms of the prayer clause of the writ petition. 7. We have heard learned counsel for the parties and examined the record. 8. It is not in dispute that the term for which the lease was granted in favour of the petitioner has expired on 28.1.2016. It is also not in dispute that the petitioner has enjoyed the benefits of the lease during the period of its subsistence, except for the period when the lease deed was cancelled under the order of Collector. The procedure and the conditions in the matter of grant of lease in respect of minor minerals has gone a sea change under the directions of the Apex Court as per judgment in the case of Deepak Kumar and others v. State of Haryana and others, (2012) 4 SCC 629 . 9. The State of Uttar Pradesh in terms of the direction of the Apex Court in the case of Deepak Kumar and others v. State of Haryana and others (supra) has affected various amendments in the Minor Mineral (Concession) Rules, 1963 being amendment Nos. 35th, 36th and 37th. 9. The State of Uttar Pradesh in terms of the direction of the Apex Court in the case of Deepak Kumar and others v. State of Haryana and others (supra) has affected various amendments in the Minor Mineral (Concession) Rules, 1963 being amendment Nos. 35th, 36th and 37th. These amendments have been taken note of by Division Benches of this High Court in the case of Nar Narain Mishra v. State of U.P. and others, 2013(2) ADJ 166 , as also in the case of Sukhan Singh v. State of U.P., 2014(11) ADJ 89 , wherein it has been held that all the pending applications as on 31.5.2012, shall stand rejected and fresh leases can only be granted now under Chaper IV of the Rules, 1963. 10. The aforesaid judgments in the case of Nar Narain Mishra v. State of U.P. and others (supra) as well as in the case of Sukhan Singh v. State of U.P. (supra) were subjected to challenge before the Apex Court and the Apex Court has dismissed the special appeals filed against the same [Ref. Civil Appeal No. 4 of 2016 (arising out of SLP (Civil) No. 28249 of 2015) decided on 4.1.2016]. The judgments therefore stand on record. The logical conclusion of the aforesaid judgments is that with the enforcement of the Government Order dated 31.5.2012, the grant of fresh leases as well as renewal of leases has to be done only in accordance with the provisions contained in Chapter IV of the Minor Minerals (Concession) Rules, 1963. 11. The counsel for the petitioner has referred to the judgment of the Apex Court in the case of Beg Raj Singh v. State of U.P. and others (supra), J.P. Yadav v. Kanhaiya Singh and others (supra) as well as to the Division Bench Judgment of this Court in the case of Rajendra Singh v. State of U.P. and others (Misc. Bench No. 1829 of 2015, decided on 18.3.2015). According to petitioner, Rule 68 of the Minor Minerals (Concession) Rules, 1963 confers a power upon the State Government to grant extension of the lease for certain reasons in the cases where the period of earlier lease granted in favour of leasee had been curtailed. 12. Bench No. 1829 of 2015, decided on 18.3.2015). According to petitioner, Rule 68 of the Minor Minerals (Concession) Rules, 1963 confers a power upon the State Government to grant extension of the lease for certain reasons in the cases where the period of earlier lease granted in favour of leasee had been curtailed. 12. Since, the contention raised on behalf of the petitioner revolves around the interpretation of Rule 68 of the Minor Minerals (Concession) Rules, 1963, it would be appropriate for this Court to deal with the said provisions itself at the first instance. Rule 68 of the Minor Minerals (Concession) Rules, 1963 read as follows : “68. Relaxation of rules in special cases.—The State Government may, if it is of opinion that in the interest of mineral development it is necessary so to do, by order in writing and for reasons to be recorded authorised in any case the grant of any mining lease or the working of any mine for, the purpose of winning any minerals on terms and conditions different from those laid down in these rules.” 13. From a simple reading of the aforesaid Minor Minerals (Concession) Rules, it is apparent that it confers a discretionary power upon the State Government i.e. “if it is of the opinion that in the interest of mineral development it is necessary so to do, by order in writing and for reasons to be recorded, authorize in any case the grant of any mining lease or the working of any mine for, the purpose of winning any minerals on terms and conditions different from those laid down in the Rules”. 14. In our opinion the crucial words under Rule 68 are “in the interest of mineral development”. Rule 68 does not confer a power upon the State Government, to extend the term of the lease beyond the contracted period, without following the procedure prescribed under Chapter II and IV of the Minor Minerals (Concession) Rules, 1963. The main object of Rule 68 is to provide special power to the State Government in the interest of mineral development and not to compensate the loss if any caused to a lease holder because of an order of the competent authority terminating the lease for whatever reasons it may be. 15. The main object of Rule 68 is to provide special power to the State Government in the interest of mineral development and not to compensate the loss if any caused to a lease holder because of an order of the competent authority terminating the lease for whatever reasons it may be. 15. Rule 68 cannot be read in the manner to suggest that the State Government, without forming any opinion that it is in the interest of mineral development to grant leases, can extend the term of an expired lease on the ground that certain loss has been caused to the lease holder because of curtailment of the term of the lease granted. 16. Even otherwise, we may record that the terms and conditions on which the lease was earlier granted to the petitioner in the year 2006, have now gone a sea change, as already noticed in the judgments in the case of Nar Narain Mishra v. State of U.P. and others (supra) and Sukhan Singh v. State of U.P. (supra). 17. We are more than satisfied that in the facts of the case, it would not be fair and just to direct any extension of the term of the lease in favour of the petitioner, for the period it stood curtailed because of the order of District Magistrate referred to above. 18. At the same time, we are conscious of the fact that if any loss has been caused to the petitioner because of any alleged illegality in order of the District Magistrate, he can always approach the State Government seeking compensation or may file a civil suit for the purpose, but direction for extension of the term of the lease in the changed scenario, would not be just and appropriate. 19. 19. Counsel for the petitioner had also placed reliance upon the judgment in the case of Provash Chandra Dalui and another v. Biswanath Banerjee and another, AIR 1989 SC 1834 , specifically paragraph 12 as well as upon the judgment of the Division Bench of this Court in the case of Gopal Swarup Chaturvedi v. State of U.P. and others, 2007(102) RD 574, specifically paragraph 13 wherein the judgment of the Provash Chandra Dalui and another v. Biswanath Banerjee and another (supra) has been applied for the proposition that extension of lease only mean prolongation of the term of the lease whereas renewal means a new lease, for fresh term. 20. There can be no dispute with regard to the legal position, which has been so explained by the Apex Court but the right of extension of the lease, must either flow from a statutory provisions or from the terms of the lease which has been executed between the parties. In the facts of the case, no such provision has been brought to the notice of the Court. Therefore, what is being prayed for in the facts of the case, is execution of a fresh lease for the period, the petitioner could not operate his earlier lease because of the order of the District Magistrate. 21. We may also record that under the lease which was executed between the parties, there was no provision for extension of the term of the lease. At least, no such clause has been brought to the notice of the Court. The distinction between extension of a lease and renewal of the lease is also required to be kept in mind. The legal position in that regard stand settled under the judgment in the case of State of U.P. and others v. Lalji Tandon (Dead) through L.R.S., (2004) 1 SCC 1 , ref. Para 13, relevant portion whereof reads as follows : “13. ...........There is a difference between an extension of lease in accordance with the covenant in that regard contained in the principal lease and renewal of lease, again in accordance with the covenant for renewal contained in the original lease. In the case of extension it is not necessary to have a fresh deed of lease executed, as the extension of lease for the term agreed upon shall be a necessary consequence of the clause for extension. In the case of extension it is not necessary to have a fresh deed of lease executed, as the extension of lease for the term agreed upon shall be a necessary consequence of the clause for extension. However, option for renewal consistently with the covenant for renewal has to be exercised consistently with the terms thereof and, if exercised, a fresh deed of lease shall have to be executed between the parties.............” 22. We are also of the opinion that the judgments of the Apex Court in the case of Beg Raj Singh v. State of U.P and others (supra) and J.P. Yadav v. Kanhaiya Singh and others (supra) as also the Division Bench Judgment in the case of Rajendra Singh v. State of U.P. and others (supra) relied upon by the counsel for the petitioner are clearly distinguishable in the facts of the present case as also in view of the change in law regarding grant of mining leases subsequent to the judgment of Apex Court in the case of Deepak Kumar and other v. State of Haryana and others (supra). 23. For all the aforesaid reasons, we do not find any good ground to issue any mandamus for deciding the application of the petitioner, with the prayer for grant of extension of lease. 24. However, we leave it open to the petitioner to approach the State Government for payment of suitable compensation, for the alleged loss of business, if any caused to him due to illegal order of the District Magistrate, cancelling his lease earlier. It is always open to the State Government to examine all aspects of the matter and take a decision in that regard. Otherwise, petitioner is at liberty to file a civil suit for compensation. 25. The writ petition is dismissed subject to the observations made. ——————