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2021 DIGILAW 842 (ALL)

Continental Granite v. State of U. P.

2021-08-09

JAYANT BANERJI, MANOJ MISRA

body2021
JUDGMENT : Heard Shri Pratik Chandra, learned counsel for the petitioner and Shri Pradeep Kumar Tripathi, learned Standing Counsel for the State-respondents. 2. By means of this petition, the petitioner has challenged the order dated 4.2.2021 passed by the respondent No. 1 communicating to the respondent No. 3-District Magistrate that it is not possible to execute the lease-deed for renewal of lease granted to the petitioner nor is it possible to have anyone as a partner in the lease-deed. Further challenge is to the communication dated 22.2.2021 sent by the District Magistrate (respondent No. 3) to the petitioner informing it of the aforesaid order dated 4.2.2021 and also communicating that pursuant to a Government Order dated 19.12.2019, the vacant mining areas pertaining to minor minerals granite/dimensional stone, have to be arranged on the basis of e-tendering-cum-e-auction in pursuance of Rule 23(1) of theUttar Pradesh Minor Minerals (Concession) Rules, 1963 (Rules of 1963). Further challenge is to the communication dated 22.2.2021, whereby the approval granted to the petitioner on 3.6.2016 for renewal of the mining lease was cancelled and the relevant plot numbers were declared as vacant for purposes of its arrangement on the basis of e-tendering-cum-e-auction. The petitioner has also challenged the notice dated 24.2.2021 inviting bids by e-tendering-cum-e-auction for granite mining pertaining to the plots of land previously leased to the petitioner. 3. It is contended that pursuant to permission granted by the respondent No. 1 in favour of the petitioner for commencing mining operations in respect of sheet rock (granite size dimensional stone), a lease-deed was executed by the State Government in favour of the petitioner for the said mining operations for a period of fifteen years on 13.8.1998 in respect of several plots of land having an area of 10.00 acres in Village-Toriya, Tehsil & District Lalitpur. The petitioner filed an application for renewal of the lease on 8.2.2013, which was forwarded by the District Magistrate to the State Government for directions. It is contended that entire amount of royalty was paid by the petitioner and environment clearance certificate for granite size dimensional stones was also obtained. The petitioner filed an application for renewal of the lease on 8.2.2013, which was forwarded by the District Magistrate to the State Government for directions. It is contended that entire amount of royalty was paid by the petitioner and environment clearance certificate for granite size dimensional stones was also obtained. A recommendation for renewal of the lease was sent by the District Magistrate by means of his letter dated 19.12.2013 and by means of an order dated 3.6.2016, the State Government communicated to the District Magistrate its decision to renew the lease for the period of fifteen years with additional conditions. It is contended that an application was submitted on behalf of the petitioner before the respondent No. 3 to add the names of three persons in the lease deed to be executed since the proprietor of the petitioner was keeping ill-health. By a letter dated 13.1.2017, the District Magistrate sought clarification from the State Government in this regard. In the meanwhile, by means of an order dated 20.6.2016 passed in a Public Interest Litigation (PIL) No. 28916 of 2016 (Vijay Kumar Dwivedi v. State ofUttar Pradesh and others), 2016 (9) ADJ 61 (DB), the High Court had restrained the excavation of minor minerals on the basis of lease deeds or permission granted subsequent to 31.5.2012 by whatever name it be called, i.e. (a) renewal of the expired lease; (b) grant of fresh lease; (c) right to excavate for the obstructed period; and (d) extension of the term of the lease. Pursuant to the aforesaid order of the High Court in the PIL, the State Government issued a Government Order dated 18.11.2016 imposing ban on the mining operations undertaken under the mining leases subject to decision of the Court. Pursuant to the aforesaid order of the High Court in the PIL, the State Government issued a Government Order dated 18.11.2016 imposing ban on the mining operations undertaken under the mining leases subject to decision of the Court. It is contended that the Division Bench of this Court in the case of M/s. Peethambra Granite (P) Ltd. v. State ofUttar Pradesh and others, Writ-C No. 30066 of 2017, vide its judgment dated 18.2.2020, distinguished the judgment in the aforesaid PIL of Vijay Kumar Dwivedi and held that the Government Order dated 31.5.2012 would have no application insofar as the minor mineral 'granite building stone' is concerned and the Government Order dated 18.11.2016 issued by the State Government pursuant to the directives issued under the order dated 20.6.2016 passed in the aforesaid PIL of Vijay Kumar Dwivedi, would have to be read accordingly, as not being in respect of minor mineral 'granite building stone'. It is, therefore, contended that the decision of the State Government cancelling the approval for renewing the lease granted to the petitioner and proceeding for e-tendering-cum-e-auction of the plots of land allotted to the petitioner under the previous lease, is contrary to the judgment of this Court in M/s. Peethambra Granite (supra) and the petitioner is entitled to renewal of the lease inasmuch as the approval for renewal of the lease by the State Government on 3.6.2016 conferred a right on the petitioner for renewal and that the execution of a lease-deed was a mere consequential formality. 4. The learned Standing Counsel has strongly opposed the writ petition stating that mere communication by the State Government of its decision to renew the lease of the petitioner does not confer any vested right on the petitioner for getting the lease-deed executed. He has referred to the amendments in the Rules of 1963 and has contended that in view of the fact that the lease was not executed in favour of the petitioner when the amendments in the Rules of 1963 came into force, the petitioner is not entitled to claim any vested right for execution of the lease-deed. It is contended that post the amendments to the Rules of 1963 in the year 2017, all mining leases are required to be executed in favour of the successful bidder pursuant to e-tendering-cum-e-auction proceeding put in place by virtue of the amendments in the year 2017. It is contended that post the amendments to the Rules of 1963 in the year 2017, all mining leases are required to be executed in favour of the successful bidder pursuant to e-tendering-cum-e-auction proceeding put in place by virtue of the amendments in the year 2017. The learned Standing Counsel has referred to a judgment dated 7.6.2018 passed by a coordinate Bench of this Court in the case of Ajay Kumar Prajapaati v. State ofUttar Pradesh and others, Writ-C No. 21120 of 2018, to support his contention which judgment was been followed by another Division Bench of this Court in the case of Gopal Das Gupta v. State ofUttar Pradesh and others, Writ-C No. 13689 of 2020, decided on 9.9.2020. It is further contended that the Supreme Court in its judgment in the matter of Dharmendra Kumar Singh v. State ofUttar Pradesh and others, (2021) 1 SCC 93 ; AIR 2020 SC 5360 , has considered the judgment in the case of M/s. Peethambra Granite (supra) with regard to grant of extension of time for obstructed period of mining lease, but, held that in view of the new Mining Policy of 2017 issued by the State of U.P., it would weigh in favour of not exercising jurisdiction to extend leases for the obstructed period. 5. In the present case, the point for consideration of this Court is whether the communication by the State on 3.6.2016 of its decision to renew the lease for a period of fifteen years would vest a right in the petitioner for renewal of the lease and whether the petitioner would be entitled to any benefit of the judgment passed by this Court in the case of M/s. Peethambra Granite (supra). 6. As far as the judgment of this Court in M/s. Peethambra Granite, is concerned, it is noticed that the challenge in that petition was to a Government Order dated 18.11.2016 by means of which, while relying upon an order of this Court dated 20.6.2016 passed in the case of Vijay Kumar Dwivedi (supra), the mining of granite size dimensional stone was stopped. The writ petition of M/s. Peethambra Granite (P) Ltd. was the leading writ petition in a group of six writ petitions in which the mining lease of the petitioner therein was renewed for a period of fifteen years from 31.12.2013 to 30.12.2028 and a lease-deed was accordingly executed. The writ petition of M/s. Peethambra Granite (P) Ltd. was the leading writ petition in a group of six writ petitions in which the mining lease of the petitioner therein was renewed for a period of fifteen years from 31.12.2013 to 30.12.2028 and a lease-deed was accordingly executed. The Mining Policy of 2017 formulated by the State Government was noticed in which it was mentioned that the leases which were already granted shall continue upto their term and thereafter no renewal shall be made, and that after the expiry of the existing lease when the area becomes vacant, the same shall be granted on lease by way of e-tender/e-auction/e-bidding. The Court, therefore, went on to observe that the directions issued in the case of Vijay Kumar Dwivedi (supra) would have no application insofar as the minor mineral 'granite-building stone' is concerned and the Government Order dated 18.11.2016 issued by the State Government pursuant to the directives issued under the order dated 20.6.2016 passed in the case of Vijay Kumar Dwivedi would have to be read, as not being in respect of the minor mineral 'granite-building stone'. 7. Thus, the case of M/s. Peethambra Granite (supra) is distinguishable on facts with regard to the present case inasmuch as, in the present case, the lease has not been renewed. 8. Next, the petitioner's contention of a vested right having accrued in its favour in view of the order of the State Government dated 3.6.2016 has only to be discarded. 9. Admittedly, after the order dated 3.6.2016 was passed by the State Government, till the Mining Policy of the State Government came into force in the year 2017, no lease-deed was executed in favour of the petitioner. While relying upon the various judgments of this Court as well as the Supreme Court, this Court in Ajay Kumar Prajapaati observed that since the amendment to the Rules of 1963 had come into force in the year 2017 whereas the application for grant of lease-deed was pending, the pending application cannot be considered or acted upon. Reliance was also placed upon a judgment of the Supreme Court in Sulekhan Singh and Co. Reliance was also placed upon a judgment of the Supreme Court in Sulekhan Singh and Co. and others v. State of U.P., (2016) 4 SCC 663 , in which, the Supreme Court, while relying upon its observations in the case of Monnet Ispat and Energy Limited v. Union of India and others, (2012) 11 SCC 1 , pertaining to the doctrines of promissory estoppel and of legitimate expectation, upheld the decision of the High Court that pendency of the application did not create any right in favour of the applicants and rejected the plea that the applicants had acquired a vested right in their favour prior to the Government Order dated 31.5.2012. In Ajay Kumar Prajapaati (supra), further reliance was placed on a judgment of this Court in the matter of Sukhan Singh v. State of U.P., 2014 (11) ADJ 89 ; in which it was observed as follows : ''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.'' 10. The copy of the Mining Policy 2017 has been enclosed in the writ petition as Annexure No. 33. Clause 8 of the Mining Policy 2017 deals with the policy with regard to approval of mining concessions. It provides that all mining concessions would be approved only on the basis of e-tender/e-auction/e-biding. For every permit or lease, no objection pertaining to forest and environment would be essential. Sub-clause (3) of Clause 8 of the Mining Policy 2017 deals with the granite size dimensional stone. This states that to promote mining based industries and for arrangement of mining areas in a transparent and competitive manner, the approved mining leases would be valid till the period of the lease. After conclusion of the period of the mining lease, the mining lease would not be renewed. As and when the mining areas would become vacant, the mining leases for those areas would be approved for a maximum period of thirty years on the basis of e-tender/e-auction/e-bidding. After conclusion of the period of the mining lease, the mining lease would not be renewed. As and when the mining areas would become vacant, the mining leases for those areas would be approved for a maximum period of thirty years on the basis of e-tender/e-auction/e-bidding. It may be iterated that the Supreme Court in the case of Dharmendra Kumar Singh (supra) refused extension of mining lease for the obstructed period in view of the 'transparent' Mining Policy of 2017. 11. In the present case, the petitioner claims renewal of the lease. Its lease for mining operations of granite size dimensional stone was valid only till 12.8.2013. Therefore, in view of the extant Rules of 1963 and the Mining Policy of 2017, the petitioner cannot sustain its claim for renewal of the lease in its favour pursuant to the approval granted to it by the State Government on 3.6.2016. The orders/notice impugned in the present petition are in consonance and in keeping with the extant Rules of 1963 as well as the Mining Policy of 2017. The Mining Policy of 2017 is not under challenge, and, in any view of the matter, it has been repeatedly considered and approved by judgments of this Court as well as of the Supreme Court, a recent one being the decision in the case of Dharmendra Kumar Singh (supra). Moreover, the petitioner has failed to demonstrate any statutory or other legal existing obligation of the respondents, or, any such illegality, perversity or arbitrariness meriting a mandamus or certiorari, respectively. 12. This writ petition is, accordingly, dismissed.