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2017 DIGILAW 2362 (ALL)

Radha Devi v. State of U. P.

2017-10-12

DILIP B.BHOSALE, MANOJ KUMAR GUPTA

body2017
JUDGMENT : 1. The petitioner seeks the following relief:- “I. Issue the writ, order or direction in the nature of mandamus commanding the respondents to extend lease the lapse period of the lease for the period 1 year 7 months 16 days for the gata no.860 and 1 years 8 month 9 days for the gata no.861 and also issue MM-11 for the plot no. 860, 861, situated in Village Simaria Tehsil Orai District Jalaun.” 2. The petitioner was grantee of two mining leases over gata no. 860 area 3.25 acres and gata no. 861 area 4 acres from 6.8.2008 to 5.8.2011 i.e. for 3 years. After expiry of period of lease, the petitioner was granted renewal for the period 25.11.2011 to 24.11.2014. The petitioner claims that she could not operate the lease in respect of gata no. 860 for period of 1 year 7 months and 16 days and in respect of gata no. 861 for 1 year 8 months and 9 days. She has placed reliance on a judgment of the Supreme Court in Beg Raj Singh vs. State of U.P., 2003 (1) SCC 726 in contending that the petitioner has a right to seek extension of lease for the obstructed period. 3. We have carefully gone through the judgement of the Supreme Court and we find that the same is not applicable to the facts of the instant case for more than one reason. In the matter before the Supreme Court, the lessee of the mining lease was a person who had identified and explored a new mining area and had made huge expenditure in making the area approachable. The policy of the State Government at the relevant time was to grant lease to such persons on 'first come first serve basis' for period extending from 3 to 5 years. However, the petitioner was granted lease only for one year and after its expiry, he applied for extension of lease for two years contending that under the Government order, he was entitled for lease for a minimum period of 3 years. The District Magistrate allowed his request and extended the lease for two years. In the meantime, a revision came to be filed by a third party, contending that the mining rights should have been settled by auction. The District Magistrate allowed his request and extended the lease for two years. In the meantime, a revision came to be filed by a third party, contending that the mining rights should have been settled by auction. The revision was allowed by the State Government holding that in case the mining rights are settled by auction, it is likely to fetch higher revenue. The order passed in revision was challenged before the High Court. Although the High Court agreed with the petitioner that the lease, as initially granted, should have been for a period of 3 years but still no relief was granted to the petitioner, as the High Court was of the opinion that the settlement of the lease by public auction would subserve public interest, by fetching more revenue. The matter was thereafter agitated before the Supreme Court, which in the facts and circumstances of that case held that once there was Government policy for grant of lease for a total period of 3 years and the High Court having found that the order passed in revision setting aside the order of the Collector granting extension of two years was invalid, it was not justified in refusing to grant consequential relief to the petitioner. The Supreme Court, while allowing the Special Leave Petition specifically took notice of the fact that no mistake was attributable to the petitioner; that no third party interest came to be created in the meantime; that the State Government was bound by the policy decision to grant initial lease for a period of 3 years; and delay in decision by the court cannot be made a ground to deny relief to the petitioner, whose rights stood crystallized on the date he approached the court. It was observed thus :- “Having heard the learned counsel for the petitioner, as also the learned counsel for the State and the private respondent, we are satisfied that the petition deserves to be allowed. The ordinary rule of litigation is that the rights of the parties stand crystallized on the date of commencement of litigation and right to relief should be decided by reference to the date on which the petitioner entered the portals of the Court. The ordinary rule of litigation is that the rights of the parties stand crystallized on the date of commencement of litigation and right to relief should be decided by reference to the date on which the petitioner entered the portals of the Court. A petitioner, though entitled to relief in law, may yet be denied relief in equity because of subsequent or intervening events, i.e., the events between the commencement of litigation and the date of decision. The relief to which the petitioner is held entitled may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law. There may be other circumstances which render it inequitable to grant the petitioner any relief over the respondents because of the balance tilting against the petitioner on weighing inequities pitted against equities on the date of judgments. Third party interests may have been created or allowing relief to the claimant may result in unjust enrichment on account of events happening in between. Else the relief may not be denied solely on account of time lost in prosecuting proceedings in judicial or quasijudicial forum and for no fault of the petitioner. A plaintiff or petitioner having been found entitled to a right to relief, the Court would as an ordinary rule try to place the successful party in the same position in which he would have been if the wrong complained against would not have been done to him. The present one is such a case. The delay in final decision cannot, in any manner, be attributed to the petitioner. No auction has taken place. No third party interest has been created. The sand mine has remained un-operated for the period for which the period of operation falls short of three years. The operation had to be stopped because of the order of the State Government intervening which order has been found unsustainable in accordance with stipulations contained in the mining lease consistently with the G.O. issued by the State of Uttar Pradesh. Merely because a little higher revenue can be earned by the State Government that cannot be a ground for not enforcing the obligation of the State Government which it has incurred in accordance with its own policy decision.” 4. In the present case, concededly the first lease in favour of the petitioner expired on 5.8.2011. Merely because a little higher revenue can be earned by the State Government that cannot be a ground for not enforcing the obligation of the State Government which it has incurred in accordance with its own policy decision.” 4. In the present case, concededly the first lease in favour of the petitioner expired on 5.8.2011. During operation of the first lease, according to the petitioner, there was obstruction from 29 January 2010 until 5 June 2010 when she resumed the mining operations. It appears from the report of A.D.M. (Finance & Revenue) dated 14.8.2011 (Annexure 4) submitted to the Director, Geology & Mining, U.P., Lucknow that during this period, the petitioner herself did not operate the lease. The report further states that the application filed by the petitioner for renewal was under consideration. Concededly, thereafter the earlier lease was not extended but a fresh mining lease was granted to the petitioner for a period of 3 years. The petitioner accepted the same without any objection. After the period under renewal came to end, the petitioner once again agitated the issue relating to grant of extension for the obstructed period. In the said request, the petitioner also included certain period which remained obstructed during the subsistence of the renewed lease. Once again the District Magistrate, Jalaun by letter dated 10 October 2014 informed the State Government that during operation of initial lease, there was no obstruction from the authorities and the petitioner herself did not operate the lease. The petitioner, instead of approaching the court of law agitating her rights, preferred to keep quiet for considerable time but recently on 27.9.2017, she again raked up the same issue by filing a fresh application and has now approached this Court. Thus the facts of the instant case are altogether different from those which were under consideration by the Supreme Court. Secondly, the first lease had expired in the year 2011 and the second in the year 2014, whereas the instant petition has been filed in the year 2017. Thirdly, a Division Bench in Mohammad Yunus Hasan v State of U.P. and 4 others, 2016(5) ADJ 365 in identical facts and circumstances, after considering the judgment of the Apex Court in Beg Raj Singh (supra), has held that there is no provision under the Act nor under the lease deed which empowers the authorities to grant extension for obstructed period. It has further been held that now there has been a sea change in the procedure relating to settlement of lease of minor minerals which also do not permit entertainment of a claim for extension of term of lease. The relevant extract from the said judgment is quoted below :- “The counsel for the petitioner has referred to the judgment of the Apex Court in the case of Beg Raj Singh Vs. State of U.P. and others (supra), J.P. Yadav Vs. Kanhaiya Singh and others (supra) as well as to the Division Bench Judgment of this Court in the case of Rajendra Singh Vs. 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. 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." 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". In our opinion the crucial words under Rule 68 are "in the interest of mineral development". 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 & 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. 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. 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 Vs. State of U.P. and others (supra) and Sukhan Singh Vs. State of U.P. (supra). 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. 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. Counsel for the petitioner had also placed reliance upon the judgment in the case of Provash Chandra Dalui and another Vs. 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 Vs. Counsel for the petitioner had also placed reliance upon the judgment in the case of Provash Chandra Dalui and another Vs. 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 Vs. State of U.P. and others, 2007(102) RD 574, specifically paragraph 13 wherein the judgment of the Provash Chandra Dalui and another Vs. 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. 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. 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 Vs. 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............." We are also of the opinion that the judgments of the Apex court in the case of Beg Raj Singh Vs. State of U.P and others (supra) and J.P. Yadav Vs. Kanhaiya Singh and others (supra) as also the Division Bench Judgment in the case of Rajendra Singh Vs. 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 Vs. State of Haryana and others (supra).” In the instant matter, the petitioner has not brought on record the lease deeds nor her counsel has placed before us any provision where under the petitioner was entitled for extension of lease for the obstructed period. Having regard to these facts, we do not find any force in the instant petition and it is accordingly dismissed, leaving it open to the petitioner to claim damages, if permissible, by seeking appropriate remedy as may be advised.