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2019 DIGILAW 434 (ALL)

Arti Dwivedi v. State of U. P.

2019-02-18

PANKAJ KUMAR JAISWAL, YOGENDRA KUMAR SRIVASTAVA

body2019
JUDGMENT : Yogendra Kumar Srivastava, J. 1. Heard Sri Tejasvi Misra, learned counsel for the petitioner and Sri Pradeep Kumar Tripathi, learned Standing Counsel for the State respondents. 2. The present writ petition has been filed principally seeking to challenge the order dated 21.09.2017 passed by the District Magistrate, Banda in terms of which the claim of the petitioner and certain other lease holders with regard to grant of extension of mining lease for the 'obstructed period', was rejected. 3. The petitioner has also sought to challenge the notification dated 09.01.2019 in terms of which declaration has been made in exercise of powers under Rule 23(1) of the UP Minor Minerals (Concession) Rules, 1963 (The Rules, 1963) and the area in question has been notified for being given on lease by auction cum tender. 4. In the present case, the husband of the petitioner along with another person, were jointly granted a mining lease for excavation of sand/morrum for a period of 11.09.2009 to 10.09.2012 i.e. for a period of three years, under Chapter II of the Rules, 1963 in respect of Khand No.04 measuring 150.00 acres situate at village Marauli, Tehsil and District Banda. In the absence of requisite environmental clearance certificate, the mining operations were stopped from 01.07.2011. Thereafter the environmental clearance certificate was applied for and the same was granted on 21.02.2014. During this period, upon the death of her husband, the petitioner moved an application on 07.03.2014 before the District Magistrate, Banda for substitution of her name in the lease deed and thereafter claim was made for grant of extension of the lease for the 'obstructed period' i.e. the period for which the lease could not be operated due to lack of environmental clearance certificate. 5. The aforesaid claim of the petitioner and certain other lease holders came to be rejected vide order dated 21.09.2017 passed by the District Magistrate Banda and thereafter the present writ petition has been filed. 6. 5. The aforesaid claim of the petitioner and certain other lease holders came to be rejected vide order dated 21.09.2017 passed by the District Magistrate Banda and thereafter the present writ petition has been filed. 6. The writ petition refers to a notification dated 14.09.2006 issued by the Central Government in exercise of power conferred by subsection (1) and clause 5(2) of Section 3 of the Environment (Protection) Act, 1986 read with clause (d) of subrule (3) of Rule 5 of the Environment (Protection) Rules, 1986 in terms of which it was directed that on and from the date of its publication the required construction of new projects or activities or the expansion or modernization of existing projects or activities in the Schedule to the notification entailing capacity addition with change in process and/or technology shall be undertaken in any part of India only after prior environmental clearance from the Central Government or, as the case may be, by State Level Environment Impact Assessment Authority. The State Government directed the subsisting lease holders to apply for obtaining environmental clearance in view of the notification dated 14.09.2006. A Division Bench of this Court in Mohd. Kausar Jah Vs. Union of India & Ors., 2011 (5) ADJ 125 (DB) (LB) vide judgment and order dated 29.04.2011, directed that w.e.f. 01.07.2011, no person anywhere in the State will carry out any mining activity of minor minerals which does not have any environmental clearance under the notification dated 14.09.2006. 7. It is submitted that a letter/notice was issued to the lease holders to obtain environmental clearance as per the notification dated 14.09.2006 and the order of the High Court dated 29.04.2011 and also the notification dated 20.05.2011; however, since the lease holders had not obtained the same they were directed to stop mining operations from 01.07.2011. 8. Learned Standing Counsel appearing for the State has supported the order dated 21.09.2017 passed by the District Magistrate, Banda by submitting that the order has been passed in due compliance of the directions of the Hon'ble High Court issued vide order dated 28.07.2016 in the case of Amar Singh Vs. State of UP & Ors., PIL No.22482 of 2016. 9. Learned Standing Counsel has also drawn our attention to the order passed by a Division Bench of this Court in the case of Amitesh Kumar Shukla & Anr. Vs. State of UP & Ors., PIL No.22482 of 2016. 9. Learned Standing Counsel has also drawn our attention to the order passed by a Division Bench of this Court in the case of Amitesh Kumar Shukla & Anr. Vs. State of UP & 2 Ors., Writ-C No.17003 of 2018, decided on 21.05.2018 whereby a writ petition against a similar order dated 21.09.2017 seeking extension of time had been dismissed. The operative portion of the order dated 21.05.2018 reads as under : “This writ petition challenges the order dated 21.09.2017 passed by the second respondent, rejecting the petitioners' representation seeking extension of lease period on the ground that for a period of 1 year 2 months and 10 days, they were obstructed from carrying on any mining activities. The lease deed was executed on 11.09.2009 for a period of three years and it expired on 10.09.2012. Even if, it is assumed that petitioners were obstructed for a period commencing from 01.07.2011 to 10.09.2012 from carrying on mining operations, that by itself, will not entitle the petitioners to file writ petition and seek extension of time as of right. At the most, petitioners have a right to seek damages in appropriate proceedings, if the petitioners claim is correct. On the grounds mentioned above and also on the ground of laches, this petition deserves to be dismissed. Order accordingly.” 10. We have considered the submissions of the parties and perused the record. 11. The lease deed dated 11.09.2009, a copy whereof is part of the record of the writ petition, clearly indicates that the total period of lease was for three years. 12. It is the admitted case of the petitioner that in terms of the notification dated 14.09.2006 issued by the Central Government, and the order dated 29.04.2011 passed in the case of Mohd. Kausar Jah (supra) no mining activity of minor mineral could be carried out w.e.f. 01.07.2011 without environmental clearance certificate. It is also undisputed that the environmental clearance certificate was granted to the petitioner on 21.02.2014 i.e. after the expiry of the period of lease on 10.09.2012, and it was only thereafter on 01.04.2014 that an application was submitted before the District Magistrate, Banda requesting for permission to grant of extension of the lease period. 13. It is also undisputed that the environmental clearance certificate was granted to the petitioner on 21.02.2014 i.e. after the expiry of the period of lease on 10.09.2012, and it was only thereafter on 01.04.2014 that an application was submitted before the District Magistrate, Banda requesting for permission to grant of extension of the lease period. 13. The order dated 21.09.2017 where under the claim made by the petitioner and other lease holders for grant of extension for the obstructed period has been rejected, refers to a direction issued by this Court vide order dated 21.06.2016 in PIL No.22482 of 2016. We may note that the directions of this Court, referred to in the order impugned dated 21.09.2017, which have been extracted from the order dated 28.07.2016 passed in the case of Amar Singh (supra), were in fact directions issued in PIL No.28916 of 2016 (Vijay Kumar Dwivedi Vs. State of UP & Ors.), in terms of an order dated 20.06.2016, 2016 (9) ADJ 61 renewal of the expired lease. For ease of reference the directions issued in the case of Vijay Kumar Dwivedi are being reproduced below : “For the above noted reasons and having regard to the material which has been brought on record before us, we issue following directions in all the connected writ petitions in hand: (I) No person shall be permitted to excavate the minor minerals on the basis of the lease deeds or permission granted subsequent to 31st May, 2012 by whatever name it may be called. i.e. (a) (b) granting fresh lease (c) right to excavate for the obstructed period (d) extension of the term of the lease (II) It shall be the responsibility of the Collector, Senior Superintendent of Police and the District Mining Officer of all the above noted Districts to ensure that no illegal mining is permitted to be carried out within their territorial limits of jurisdiction. (III) No Form MM11 shall be issued in favour of any person possessed of any expired lease or an order granted subsequent to 31st May, 2012 in his favour for excavation of minor and minerals, i.e. in the name of renewal of the lease or extension of the term of the expired lease or permission for the obstructed period on the plea that a valid lease was granted but excavation could not be carried out for some days by the lease holder during the subsistence period of lease on account of the orders of this Court or of the Competent Authorities. (IV) The Collector of the respective Districts shall file their personal affidavits giving specific reply with reference to the photographs enclosed in support of the allegation of the illegal mining as well as to the averments made in respect thereof in all the writ petitions. We may record that in case it is found that any illegal mining activity is being permitted/carried on in collusion with the District Authorities, this Court will not hesitate to recommend action against the officers found responsible for the same.” 14. This Court in the case of Vijay Kumar Dwivedi (supra) issued the aforementioned directions after duly noticing the earlier Division Bench judgment in the case of Mohd. Yunus Hasan Vs. State of UP & Ors., 2016 (5) ADJ 365 (DB) where under the issue with regard to the claim for extension in respect of the obstructed period had been considered and it had been held that no such permission to continue with excavation once the lease has outlived its life could be granted on the ground that during the subsistence of the period of lease the lease holder was restrained from excavation of the minor mineral for a certain period under the order of the court or the competent authorities. 15. The aforementioned directions have also been extracted in the order dated 21.09.2017 passed by the District Magistrate, Banda wherein the claim of the petitioner and other lease holders have been rejected. 16. As we have noticed earlier the lease deed in the present case, admittedly, was for a period of three years i.e. from 11.09.2009 to 10.09.2012. 17. 15. The aforementioned directions have also been extracted in the order dated 21.09.2017 passed by the District Magistrate, Banda wherein the claim of the petitioner and other lease holders have been rejected. 16. As we have noticed earlier the lease deed in the present case, admittedly, was for a period of three years i.e. from 11.09.2009 to 10.09.2012. 17. Learned counsel for the petitioner has not been able to point out any provision under the lease deed or under the Rules, 1963 on the basis of which claim for extension of the time period of the lease deed could have been made. 18. We may, however, take note of the fact that the only provision with regard to relaxation of rules is provided under Rule 68 of the Rules, 1963 which reads 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 mineral on terms and conditions different from those laid down in these rules." 19. In terms of Rule 68, the State Government may, if it is of opinion that in the interest of mineral development it is necessary to do so, by order in writing and for reasons to be recorded authorise in any case the grant of any mining lease or the working of any mine for the purpose of winning any mineral on terms and conditions different from those laid down in the rules. 20. The discretion conferred upon the State Government for relaxation of rules is to be exercised in special cases where the State Government is of opinion that it is in the interest of mineral development necessary to do so. 21. Rule 68 of the Rules, 1963 came up for consideration before this Court in the case of Nar Narain Mishra Vs. State of UP & Ors. 2013 (2) ADJ 166 (DB), and it was held as follows: “52. The plain reading of the aforesaid rule indicates that for exercising powers under Rule 68 following conditions should exist. 21. Rule 68 of the Rules, 1963 came up for consideration before this Court in the case of Nar Narain Mishra Vs. State of UP & Ors. 2013 (2) ADJ 166 (DB), and it was held as follows: “52. The plain reading of the aforesaid rule indicates that for exercising powers under Rule 68 following conditions should exist. (a) The State Government is of opinion that in the interest of mineral development, it is necessary, and (b) By order in writing, and (c) For reason to be recorded authorise in any case grant of any mining lease or the working of any mine for the purpose of winning any mineral on terms and conditions different from those laid down in these Rules.” 22. We may refer to the judgment of this Court in Mohammad Yunus Hasan Vs. State of UP & Anr.,, 2016 (5) ADJ 365 (DB) wherein a similar claim for extension of the term of lease for the obstructed period was repelled by the Division Bench in the following terms : "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. 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 & 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. 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." 23. The aforementioned judgment has been followed in the subsequent judgment of a Division Bench of this Court in Uma Shankar Yadav Vs. State of UP & Ors., Writ-C No.55919 of 2016, decided on 11.04.2017, and the relevant extract from the judgment is as follows : “As is evident from the principles enunciated by the Division Bench in Mohammad Yunus Hasan, a prayer for extension of lease is neither referable to Rule 68 which was held to be clearly inapplicable for consideration of such requests. The Division Bench has further noted that no provision of the lease executed between the parties warranted or mandated an extension of the term of the lease in case it came to be obstructed by an act of the respondents. It was further noted that the right to seek extension of the lease period must flow either from statutory provisions or from and under the terms of the lease itself.” 24. We may also refer to the case of Smt. Prabhavati Devi Vs. State of U.P. & 3 Ors., Writ-C No.3944 of 2016, decided on 09.02.2016, where in a similar set of facts as in the present case, the petitioner was restrained from operating the mining lease for want of environmental clearance and thereafter upon obtaining the environmental clearance certificate a claim was raised for grant of extension for the obstructed period. State of U.P. & 3 Ors., Writ-C No.3944 of 2016, decided on 09.02.2016, where in a similar set of facts as in the present case, the petitioner was restrained from operating the mining lease for want of environmental clearance and thereafter upon obtaining the environmental clearance certificate a claim was raised for grant of extension for the obstructed period. Repelling the aforesaid claim, it was held that once the outer limit of the lease period in question had already expired then the request for grant of extension for the obstructed period could not be granted. The operative portion of the order passed by a Coordinate Division Bench of this Court in the case of Smt. Prabhavati Devi is being extracted below : “Accepted position is that lease life started w.e.f. 20.12.2011 and the said lease life came to an end on 19.12.2014 and the three years lease period has already expired on 19.12.2014 and in between once there was requirement of environment clearance and the same was not there, in view of this petitioner has been restrained from mining activity on 27.08.2013 and the petitioner has got said environment clearance in question admittedly after expiry of lease period in question, then petitioner cannot claim as a matter of right that for obstructed period i.e. one year three months and twenty three days she should be permitted to carry out mining activity. Once the outer limit of the lease period in question has already expired then the request as has been made by the petitioner cannot be accepted by us but it is made clear that in case petitioner has a feeling that injustice has been done to her, then she can always approach appropriate forum by preferring suit for claiming damages but certainly life of lease in question cannot be extended by us.” 25. In another judgment in the case of Sri United Crusher Vs. State of UP & Ors., 2018 (2) ADJ 657 the issue with regard to the grant of extension for the obstructed period again came up for consideration before a Division Bench of this Court, and taking into consideration the provisions contained under Rule 68 of the Rules, 1963, it was held as follows: “7B. State of UP & Ors., 2018 (2) ADJ 657 the issue with regard to the grant of extension for the obstructed period again came up for consideration before a Division Bench of this Court, and taking into consideration the provisions contained under Rule 68 of the Rules, 1963, it was held as follows: “7B. 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". 8. 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 leaseholder because of an order of the competent authority terminating the lease for whatever reasons it may be. 9. 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. 10. 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 ( 2013 (2) ADJ 166 ) (supra) and Sukhan Singh v. State of U.P. (2015 (2) ALJ 619) (supra). 11. 11. 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. ” 26. Reiterating the aforesaid legal position this Court in Radha Devi Vs. State of UP & Ors., 2018 (3) ALJ 346 has also held that extension for the obstructed period cannot be granted. 27. This Court is of the view that the power to grant relaxation under Rule 68 would not be attracted in the facts of the present case, as the said power for relaxation can be invoked only in a case where the State Government is of the opinion that in the interest of mineral development it is necessary to do so, and passes an order in writing with reasons. 28. In the present case the petitioners has also sought to raise a challenge to the notification dated 09.01.2019 in terms of which a declaration has been made in exercise of powers under Rule 23(1) of the Rules, 1963, and the area in question has been notified for being given on lease by auction cum tender. 29. In this regard it may be relevant to take notice of the fact that State Government had issued a Government Order dated 31.05.2012 whereby the entire vacant mining area in the State of Uttar Pradesh was brought under Chapter IV of the Rules, 1963 with a direction that the mining leases after 31.01.2012, would be settled through etendering. The validity of the Government Order dated 31.05.2012 was considered in the case of Nar Narayan Mishra (supra), and while upholding the Government Order it was directed that the applications seeking grant of lease and/or renewal thereof pending prior to 31.05.2012 would be treated as rejected. The Government Order dated 31.05.2012 was subsequently considered in a number of other petitions, including Sukhan Singh Vs. State & Ors., 2014 (11) ADJ 89 and the same view was reiterated. The Special Leave Petitions filed against the judgments in the case of Nar Narain Mishra and Sukhan Singh were dismissed by the Supreme Court. 30. It may be relevant to refer to the judgment in the case of Sulekhan Singh & Company Vs. State & Ors., 2014 (11) ADJ 89 and the same view was reiterated. The Special Leave Petitions filed against the judgments in the case of Nar Narain Mishra and Sukhan Singh were dismissed by the Supreme Court. 30. It may be relevant to refer to the judgment in the case of Sulekhan Singh & Company Vs. State of UP & Ors., (2016) 4 SCC 663 wherein the orders passed by the High Court quashing the mining leases on the ground that the said leases had been granted in violation of the Government Order dated 31.05.2012 and for the reason that mining leases could only be granted under Chapter IV of the Rules, 1963 by way of etendering, were sought to be questioned and the Supreme Court upon duly noticing the judgments in the case of Nar Narain Mishra and Sukhan Singh, dismissed the appeals. 31. The legal position, as it emerges is that once a notification has been issued under Rule 23(1) of Rules, 1963 making the provisions of Chapter IV of the Rules, 1963 applicable, no application referable to Chapter II is liable to be entertained. In this view of the matter also the claim of the petitioner for extension of the 'obstructed period' in respect of the lease which had been granted under Chapter II of the Rules, 1963, cannot be granted once a declaration has been made vide notification dated 09.01.2019 issued under Rule 23(1) making the provisions of Chapter IV applicable. 32. We may reiterate that the right to claim extension of the time period of the lease must either flow from statutory provisions or from the terms of the lease deed. In the instant case the lease having been granted for a period of three years i.e. w.e.f. 11.09.2009 to 10.09.2012, the order dated 21.09.2017 passed by the District Magistrate, Banda rejecting the claim of the petitioner and other lease holders for grant of extension in respect of the obstructed period, cannot be faulted with. 33. As regards the prayer made by the petitioner for a direction from this Court for permission to complete the entire period of three years granted in terms of the lease deed, we may take notice of the recent judgment of the Supreme Court in the case of Reji Thomas & Ors. Vs. 33. As regards the prayer made by the petitioner for a direction from this Court for permission to complete the entire period of three years granted in terms of the lease deed, we may take notice of the recent judgment of the Supreme Court in the case of Reji Thomas & Ors. Vs. State of Kerala & Ors., AIR 2018 SC 2236 , where the question as to whether the High Court in exercise of its power under Article 226 of the Constitution of India could have extended the statutory period in the context of a prescribed time schedule for preferring an election petition fell for consideration and it was held that once the mechanism provided under the statute provides for a time schedule, in absence of a provision in the statute for enlarging the time under any given circumstances, no Court can extend the time period and in such matters the Court has to adopt strict interpretation of the provisions. The observations made by the Supreme Court are as follows : "11. Section 69 of the Act is the mechanism provided by the State Legislature as contemplated under Article 243 ZK (2) of the Constitution of India. Once the mechanism provided under the Statute provides for a time schedule for preferring an election petition, in the absence of a provision in the Statute for enlarging the time under any given circumstances, no court, whether the High Court under Article 226 or this Court under Article 32, 136 or 142 of the Constitution can extend the period in election matters. In the matter of limitation in election cases, the Court has to adopt strict interpretation of the provisions. This Court in Smita Subhash Sawant Vs. Jagdeeshwari Jagdish Amin & Ors. reported in (2015) 12 SCC 169 , though in a different context, has held at paragraph 33 that "In the absence of any provision made in the Act for condoning the delay in filing the election petition, the Chief Judge had no power to condone the delay in filing the election petition beyond the period of limitation prescribed in law". 12. In Union of India & Anr. vs. Kirloskar Pneumatic Co. 12. In Union of India & Anr. vs. Kirloskar Pneumatic Co. Ltd. reported in (1996) 4 SCC 453 , at paragraph 10, this Court has held as under : ".....The power conferred by Articles 226/227 is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities, who are the creature of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendment. Maybe the High Court or a civil court is not bound by the said provisions but the authorities under the Act are. Nor can there be any question of the High Court clothing the authorities with its power under Article 226 or the power of a civil court. No such delegation or conferment can ever be conceived." 34. We may note that in the case of Smita Subhash Sawant Vs. Jagdeeshwari Jagdish Amin & Ors., (2015) 12 SCC 169 , referred to in the case of Reji Thomas (supra), while considering the delay of one day in filing an election petition, it was held that in absence of any provision made in the act for condoning the delay in filing the election petition, the Court had no power to condone the delay beyond the period prescribed in law. 35. In State of WB Vs. MR Mondal & Anr., (2001) 8 SCC 443 , the legality of the extension of a government contract governed under statutory rules fell for consideration and it was held as follows : ".....Thus, without the concurrence of the Central Government, which also has to be necessarily in conformity with the statutory Rules governing the same, there cannot be any extension granted in favour of the plaintiff and the High Court could not have directed the doing of a thing not permissible in or contrary to the statutory Rules. 36. Reference may also be had to the judgment of this Court in Anar Singh Vs. 36. Reference may also be had to the judgment of this Court in Anar Singh Vs. State of U.P. & Ors., Writ-C No.2297 of 2019, decided on 24.01.2019 wherein in the context of the mining permit under Rule 52A of the Rules 1963, it was held that the time period for grant of mining permit having been provided in terms of sub rule (3) thereof, no enlargement of the said time period could be granted. 37. In view of the aforesaid discussions, this Court is of the view that in the absence of any statutory provision or any term contained in the lease deed, no extension of time period for the 'obstructed period' as claimed by the petitioner can be granted. 38. The writ petition is devoid of merit and it is, accordingly, dismissed.