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Himachal Pradesh High Court · body

2018 DIGILAW 2155 (HP)

Rajesh Thakur v. State of H. P.

2018-12-05

AJAY MOHAN GOEL, SURYA KANT

body2018
JUDGMENT : Surya Kant, J. 1. The petitioner applied on 26th April, 2013, for grant of 'mining lease' over a specified piece of land situated within the Revenue Estate of Mohal Mijhli Band, Mauza Surduwan, Tehsil Indora, District Kangra for extraction of Sand, Stone and Bajri. His application has been rejected almost after five years vide impugned order dated 19th February, 2018, on the ground that no such lease can be granted merely on an application as the mining rights are to be "auctioned" over the Government land. 2. The petitioner urges that the land in question is 'Shamlat Deh' and not a Government land and therefore, he is entitled to the grant of mining lease over the subject land. 3. Having heard learned counsel for the parties, we do not find any merit in this petition. We say so, for the reasons that 'minor minerals' belong to the State and are public property. No one can claim right to extract such minerals without passing through a transparent mode of awarding of such rights. If such rights are granted, merely on an application, it will promote favouritism and nepotism and is likely to lead to abuse or colourable exercise of powers. 'Auction' may not be the best but is one of the transparent mode of awarding rights in public property and the decision of the State Government to adhere to such mode to award mining lease, is fair, just and equitable. No interference in this regard, is thus, called for. 4. The reliance placed on by the petitioner on Rule 7 read with Rule 67 of the Himachal Pradesh Minor Minerals (Concession) and Minerals (Prevention of illegal Mining, Transportation and Storage) Rules, 2015 is wholly misconceived and misplaced. Rule 7 read with Rule 67 of the 2015 Rules has to be construed in conformity with Article 14 of the Constitution. Mere submission of application does not and cannot clothe an applicant to seek 'mining lease' as a matter of right. The application only brings the applicant within the ambit of consideration and the State Government is obligated to adopt a transparent mode to consider all the eligible applications through a fair mechanism like auctioning of the site so as to maximise the revenue. 5. The application only brings the applicant within the ambit of consideration and the State Government is obligated to adopt a transparent mode to consider all the eligible applications through a fair mechanism like auctioning of the site so as to maximise the revenue. 5. It will be useful to rely upon the Constitution Bench decision in Natural Resources Allocation, In re: Special Reference No. 1 of 2012, (2012) 10 SCC 1 , laying down that though 'auction' is not the only legitimate means of disposal of natural resources "however, all the same, auction cannot be called ultra vires for the said reasons and continues to be an attractive and preferred means of disposal of natural resources especially when revenue maximisation is a priority. Therefore, neither auction, nor any other method of disposal can be held ultra vires the Constitution, merely because of a potential abuse." 6. These very principles were reiterated in Manohar Lal Sharma vs. Principal Secretary and others, (2014) 9 SCC 516 . 7. In Bharti Airtel Ltd. vs. Union of India, (2015) 12 SCC 1 , the Apex Court again approved 'auction' as a preferred mode of awarding contractual rights by the State. In this regard, it will be useful to reproduce para 70 of the judgment, which reads as follows: "70. The impugned decision of the Government, which in fact resulted in huge inflow of revenue in the auctions conducted during the pendency of this litigation, cannot be said to be a totally irrational or irrelevant consideration in the context of the spectrum management, more particularly, in the light of decision of this Court in Centre for Public Interest Litigation vs. Union of India, (2012) 3 SCC 1 ." 8. The plea that the land is 'Shamlat Deh' and not 'Government Land' is also misconceived. Assuming that the land is 'Shamlat' in nature, yet it vests in Gram Panchayat and is meant to be used for 'common purposes' of the village community. It thus partakes the character of a public property and cannot be leased out as a State's largess for the benefit of a private individual at the cost of public exchequer. 9. For the reasons afore-stated, we do not find any merit in this petition and the same is accordingly dismissed alongwith pending applications, if any.