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2024 DIGILAW 1685 (ALL)

Banketeshwar Prasad Chaturvedi v. Union of India

2024-07-16

ANJANI KUMAR MISHRA, JAYANT BANERJI

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JUDGMENT Anjani Kumar Mishra, J. Heard Shri. Dev Brat Mukherjee, for the petitioner and Shri. M. C. Chaturvedi, learned Additional Advocate General for the State, Shri. Navin Sinha, Senior Advocate for the sixth respondent and Shri. Amit Saxena Senior Advocate, for respondent no.7. 2. The petition seeks a writ of mandamus commanding third respondent (State of U.P. through Secretary, Industrial Development, Civil Secretariat, Lucknow) to renew the prospecting license issued to the petitioner for an area of 1.45 hectares and to execute a fresh lease for an area 5.63 hectares in village Billi Markundi, Pargana Agori, Tehsil Robertsganj, District Sonbhadra, as directed by the order of the Government of India, Ministry of Mines, dated 26.07.2010. 3. The facts briefly stated are that on 22.12.1998, the petitioner filed application under Rule 9(1) of Mineral Concession Rules, 1960, for a prospecting license for an area of 10 hectares in village Billi Markund, Pargana Agori, Tehsil Robertsganj, District Sonbhadra over plot No. 3688 (New No. 7985k). 4. It appears that the State Government required the petitioner to obtain a no objection certificate from the U.P. State Mineral Development Corporation, UPSMDC in whose name the plot in question was recorded. 5. It is stated that the petitioner replied, stating that the plot in question was recorded in the name of the State Government and that the entry in favour of the UPSMDC had already been expunged. 6. On 04.08.2000, the State Government is stated to have granted a prospecting license to the petitioner which was for an area of three hectares only, as opposed to the application of the petitioner which was for ten hectares. The petitioner deposited the requisite fee for demarcation of this area. The Forest Department also issued a no objection certificate to the petitioner for the plot in question. Thereafter, on 07.03.2002, a prospecting mining lease was executed in favour of the petitioner for a period of two years. 7. The petitioner applied for renewal of this prospecting license in accordance with Rules 8, 9 and 11 of Mineral Concession Rules, 1960 on 01.01.2004. Since a fresh demarcation would be required, the petitioner deposited demarcation fee as well. 8. Consequent to the application for renewal, the Director, Geology and Mining is stated to have written to District Magistrate on 05.04.2004 enquiring whether the area in question was covered by the Forest Conservation Act, 1980. 9. Since a fresh demarcation would be required, the petitioner deposited demarcation fee as well. 8. Consequent to the application for renewal, the Director, Geology and Mining is stated to have written to District Magistrate on 05.04.2004 enquiring whether the area in question was covered by the Forest Conservation Act, 1980. 9. The District Magistrate is stated to have recommended renewal of the prospecting license. However, the prospecting/mining license was not renewed. As no formal order in this regard was passed, as was required by the State Government by Rule 11 of the Mineral Concession Rules, 1960, the petitioner, under the circumstances and on account of in-action of the State Government filed another application for grant of a mining lease under Rule 22(3) of the Mineral Concessions Rules, 1960. This application was received on 20.03.2006. 10. On 05.02.2007, the petitioner filed yet another application for grant of prospecting license under Rule 9(1) of the Mineral Concessions Rules, 1960. 11. Despite, the aforesaid applications and on account of inaction on the part of the respondents, the petitioner filed a Civil Misc. Writ Petition No. 2610 of 2008, which was disposed of 30.12.2008 directing the State Government to pass appropriate orders on the application for renewal filed by the petitioner, within a period of six weeks from the date a certified copy of the order is filed before the State Government. 12. Thereafter, the State Government, by the order dated 12.01.2009, rejected the renewal application, as barred by time. 13. Aggrieved by this rejection, the petitioner filed a revision before the Central Government which was decided by final order No. 228 of 2010 dated 26.07.2010. The order rejecting the renewal application was set aside and a further direction was issued to the State Government to renew the prospecting license for an area of 1.45 hectares and to execute a fresh deed for 5.3 hectares, within a period of 60 days. 14. The instant writ petition has therefore, been filed, seeking compliance of this order of the Central Government dated 26.07.2010 as the same has not been complied with. 15. It has additionally been averred in the writ petition that the prospecting license granted to the petitioner was for limestone, which is a major mineral and the power in this regard vests with the Central Government. 15. It has additionally been averred in the writ petition that the prospecting license granted to the petitioner was for limestone, which is a major mineral and the power in this regard vests with the Central Government. However, for the procedural aspects like processing of applications, the State Government has to act as per the directions of the Central Government. 16. In the afore-noted factual background, it has been submitted by learned counsel for the petitioner that the area in question has been leased out by the State Government to the UPSMDC. J.P. Associates, respondent no.7, has been exploiting this area since 2007 without having obtained any environmental clearance which is mandatorily required under the 2006, Rules. It is the Central Government which alone is the competent authority as regards grant of prospecting/mining leases for mining limestone, which is a major mineral and the State authorities have no say in this matter. The State Government merely executes the will of the Central Government and its role is ministerial. 17. It has been submitted that 350 hectares of land had been given out by the State without following the rules and provisions of the Mines & Minerals (Regulation & Development) Act 1957, especially Sections 2, 13, 13A and 19, thereof. It is also submitted that under Section 15 of the Act, the State Government can make Rules only with regard to minor minerals. Section 13 of the Act pertains to major minerals like limestone and in this regard, the Central Government is the only competent authority to make rules etc. and any prospecting/mining lease or license issued in contravention of the Act or Rules framed thereunder is void as provided under section 19 of the Act. 18. It is next contended that 17 hectares of land has been leased out on 09.10.2007 by the UPSMDC which body is not in existence. Another 333.228 hectares have been transferred to the respondents by the UPSMDC by means of Government Order dated 07.11.2007. 19. It is additionally submitted that in 1970, UPSMDC applied for a limestone mineral lease under Chapter 3 of Rules 1960 for an area of 384 hectares. The lease was granted in 1977 for a period of 20 years. Another 333.228 hectares have been transferred to the respondents by the UPSMDC by means of Government Order dated 07.11.2007. 19. It is additionally submitted that in 1970, UPSMDC applied for a limestone mineral lease under Chapter 3 of Rules 1960 for an area of 384 hectares. The lease was granted in 1977 for a period of 20 years. Despite such grant, no lease deed was actually executed and therefore, the grant was inconsequential because Rule 31 of Rules, 1960 provides that a lease deed has to be executed within a period of six months. Since no lease deed had been executed in favour of the UPSMDC, it had no right to lease the land to respondent no. 6 in 2007 or to the respondent no.7. 20. It is next submitted that on 05.11.1969, a notification was issued under section 4 of the Indian Forest Act, declaring the area in question to be a reserve forest. Out of 384 hectares of land allegedly granted to the UPSMDC, the respondents admit that only 18.458 hectares is not forest land. Under the circumstances, transfer of 333 hectares of land to the 6th respondent is colourable exercise of power. 21. In any case, it is stated, the lease in favour of the UPSMDC was for a period of 20 years which expired in the year 1997 and therefore, the UPSMDC had no right to lease out 17.155 hectares on 14.12.2001 to the 6th respondent. Even the remaining 333 hectares of land has been given to the J.P. Associates, the 6th respondent. 22. To sum up, the submission of learned counsel for the petitioner is that though there was a grant in favour of the UPSMDC, the same is of no consequence and no lease deed was actually executed in favour of the UPSMDC. The area, in any case, is a forest area. The lease granted in favour of the 6th respondent is contrary to the provisions of law and therefore, void in view of Section 19 of the Act, 1957. The State respondents have failed to comply with the directions of the Central Government for renewal and execution of a lease in favour of the petitioner which directions are binding upon the State Government as the matter pertains to a prospecting lease as also a mining lease for mining limestone, which is a major mineral. 23. The State respondents have failed to comply with the directions of the Central Government for renewal and execution of a lease in favour of the petitioner which directions are binding upon the State Government as the matter pertains to a prospecting lease as also a mining lease for mining limestone, which is a major mineral. 23. Shri. M. C. Chaturvedi, Learned Additional Advocate General appearing for State of U.P., to rebut the submissions made by learned counsel for the petitioner, placed reliance upon the order of the Company Court as also the personal affidavit of the Secretary to the State Government. He has submitted that the arguments as regards the alleged illegal grant of leases in favour of the respondents, is beyond the pleadings in the writ petition. It has not been alleged in the writ petition that any environmental clearance was required or was not obtained. In any case, the personal affidavit of the Secretary has not been controverted by the petitioner. 24. It is lastly submitted that the land leased out to the 6th respondent was not the asset of the U.P. Cement Corporation but was added to the assets as a bouquet by the State Government, by way of concession. In any case, the controversy being raised with regard to the lease to the 6th respondent is concluded by the orders dated 20.09.2006 and 14.02.2007 passed by the Company Court. Copies of these orders have been made available for perusal by the Court. 25. Shri. Navin Sinha has submitted that the relief claimed in the petition is for compliance of the order dated 26.07.2020 passed by the Central Government. The lease in favour of the 6th respondent was executed on 30.01.2008. The application filed by the petitioner for renewal of prospecting license/lease was for an area of 10 hectares but no action was taken thereon till 2008 by the State Government. The petitioner had suppressed the factum of applications filed by him on 20.03.2006 for grant of mining lease over 4.55 hectares of land, as also the application dated 05.02.2007 for grant of a prospecting license over 5.63 hectares. Only the application dated 01.01.2004 was pressed before the Union Government. There was also no disclosure before the Union Government that third party rights have already intervened. 26. Only the application dated 01.01.2004 was pressed before the Union Government. There was also no disclosure before the Union Government that third party rights have already intervened. 26. He has next submitted that it is true that in accordance with the Section 31 of the Mineral Concession Rules 1960, a lease deed is required to be executed within six months. However, the State Government condoned this delay on 18th September, 2001 by its order. 27. It is lastly submitted that insofar as the second part of the relief regarding quashing the lease executed in favour of the J.P. Associates is concerned, the only pleading in this petition in this regard is to be found in paragraph 43 of the writ petition. Under the circumstances, the second relief cannot be considered. 28. What survives is only compliance of the directions contained in the order of the Central Government. Any direction for its compliance would be an exercise in futility as no land is available on the spot. Therefore, the writ petition merits dismissal. In support of this contention, he has placed reliance upon the decision of the Apex Court in S. L. Kapoor v. Jagmohan and others, (1980) 4 SCC 379 , especially paragraph 17 thereof. 29. Shri. Amit Saxena has submitted that no rejoinder have been filed to the counter-affidavits dated 18.10.2019 and 06.01.2020. Therefore, the assertions in these affidavits are to be accepted as correct. 30. In rejoinder, learned counsel for the petitioner has reiterated that the settlement in favour of the 7th respondent would be hit by doctrine of lis pendens and that the directions contained in the order of the Central Government dated 26.07.2020 are necessarily to be complied with. In support of this contention, he has placed reliance upon the decision of the Supreme Court in Gannon Drunkerley and Co. Ltd. v. Union of India AIR 1976 SC 1433 especially paragraphs 2 and 4 thereof. 31. The case of the respondents as set out in the counter affidavits filed by them is that 384 hectares of plot no.3688 situated in village Billi Markundi, Pargana Agori, Tehsil Robertsganj, District Sonbhadra new no.7985 was leased out to the UPSMDC on 15.07.1997 by the State Government for mining limestone. 32. Earlier in time, a notification was issued under Section 4 of the Forest Act on 05.11.1965, wherein plot no.3688 was also proposed to be declared a reserve forest. 32. Earlier in time, a notification was issued under Section 4 of the Forest Act on 05.11.1965, wherein plot no.3688 was also proposed to be declared a reserve forest. On an objection filed by the UPSMDC, the Forest Settlement Officer, by order dated 03.09.1993, passed in Case No.588 of 1993 and 7985 of 1993, excluded plot no.3688 from the area to be declared reserve forest. 33. It is also stated that this plot was also subject matter of the proceedings before the Apex court in the case of Banvasi Seva Ashram v. State of U.P. In accordance with the procedure prescribed by the Apex court in Banvasi Seva Ashram (supra), an appeal came to be registered before the Additional District Judge, Obra, Sonbhadra being Appeal No.39 of 1993, which upheld the order of the Forest Settlement Officer excluding plot no.3688 from the proposed reserve forest. 34. It is also submitted that on account of the dispute between the Forest Department and the Revenue Department, actual demarcation of the area leased out to the UPSMDC, could not take place and possession was not handed over. However, the State Government, by order dated 18.09.2002 condoned the delay in execution of the lease deed in favour of the UPSMDC This order dated 18.09.2002 also excluded 18.958 hectares of forest land and only the balance was leased to the UPSMDC. The actual lease was executed on 04.12.2001. The State Government included this land leased to the UPSMDC in the bouquet of properties of the U. P. Cement Corporation under the relief and concession clause for sale of the U.P. Cement Corporation as a going concern in winding up proceedings. This therefore, included the entire 384 hectares of land situated in village Billi Markundi, Pargana Agori, Tehsil Robertsganj, District Sonbhadra. 35. The 6th respondent was the highest bidder in the auction sale of U.P. Cement Corporation Limited and the bid was accepted. Accordingly, a transfer deed dated 09.10.2007 was executed in favour of the respondent no.6, whereby Leasehold Rights conferred upon UPSMDC by the lease deed dated 13.12.2001 stood transferred to the 6th respondent. 36. Subsequently, on 07.11.2007 State Government directed execution of lease deed in favour of the 6th respondent for an area of 333.228 hectares out of original area of 384 hectares, as 31.814 hectares has been declared a reserve forest. 37. 36. Subsequently, on 07.11.2007 State Government directed execution of lease deed in favour of the 6th respondent for an area of 333.228 hectares out of original area of 384 hectares, as 31.814 hectares has been declared a reserve forest. 37. In the afore-noted facts, it is submitted that there was no occasion for a prospecting licence being granted to the petitioner for a part of plot no.3688 and that this order was collusive, the prospecting licence having been granted to the petitioner on 07.03.2002. The application for renewal filed by the petitioner was actually dismissed in the year 2009. On 07.11.2007, 333.228 hectares of the plot in question were ordered to be leased in favour of the 6th respondent and in pursuance thereof, the lease was executed on 30.01.2008. 38. On the strength of the above, it is submitted that there is no land available for which the prospecting licence of the petitioner can be renewed. It is in this context that allowing the writ petition will be an exercise in futility and that the petition merits, dismissal. 39. Additionally, in the un-rebutted personal affidavit of the Principal Chief Secretary, it has been stated that limestone is not mentioned in the 1st Schedule of the Mines and Minerals (Development and Regulation) Act, 1957. Therefore, for transferring the lease granted in favour of the State Mineral Development Corporation, no permission of the Central Government was necessary. 40. Rule 31 (2) of the Mineral Concession Rules, 1960 provides that the date of commencement of the period for which the mining lease is granted shall be the date on which a lease deed is duly executed and registered as provided under sub-rule (1). 41. Rule 37 thereof, provides that a lease cannot be transferred without the previous consent in writing of the State Government. Prior approval of the Central Government for a transfer of a lease is required only as regards the minerals mentioned in Part A and Part B of the Ist Schedule of the Mines and Minerals (Development and Regulation) Act, 1957. Limestone, the mineral in question in the instant writ petition is mentioned at Sr. no. 8 of Part C of the 1st Schedule. 42. Limestone, the mineral in question in the instant writ petition is mentioned at Sr. no. 8 of Part C of the 1st Schedule. 42. The actual lease in favour of the UPSMDC could not be executed earlier on account of the pendency of the litigation in Banvasi Seva Ashram (supra) before the Apex court and on account of the dispute between the forest and the revenue department. Therefore, the delay was condoned in the year 2001 and lease deed was thereafter, executed. Such a lease could be transferred in favour of J.P. Industries, respondent no.6 without previous sanction/approval of the Central Government in view of Rule 37 of the Mineral Concession Rules, 1960. 43. Under the circumstances, there is substance in the submissions of the respondents that as on date only 333 and odd hectares of land in the plot in question are available for grant of mining lease, the remaining area having being declared a reserve forest and this area has already been leased out to the respondents in the year 2008. Therefore, there is no land in the plot in question, available on the spot, regarding which a prospecting licence, earlier granted to the petitioner, can be renewed or any fresh lease for 5 hectares and odd can be executed in favour of the petitioner. It is therefore, right for the respondents to allege that any direction for compliance of the order passed by the Central Government as is sought in relief A and B of the writ petition is not liable to be granted. 44. Relief D prayed in the writ petition is for a certiorari for quashing the mining lease dated 30.05.2008 executed by the State Government in favour of the J.P. Associates, respondent no.6 also cannot be granted because there was a valid lease in favour of the UPSMDC executed in the year 2001, which has been transferred in favour of the 6th respondent, in accordance with law, as submitted herein above. 45. Under the circumstances, we find no merit in the writ petition. It is accordingly dismissed.