Court No.10
Writ Petition No. 35946 of 2010
Samarpal Singh & others Vs. State of U.P. & others
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Hon'ble Rakesh Sharma, J.
Learned Standing Counsel has accepted notice on behalf of the
respondents. He prays for and is allowed six weeks’ time to file counter
affidavit. Rejoinder affidavit, if any, may be filed within four weeks’ next
thereafter.
List in the last week of September, 2010.
Heard learned counsel for the petitioners and the learned Standing
Counsel, appearing for the respondents.
The petitioners were granted leases for excavation of Sand, Bajari and
Murrum etc. for a period of three years, in respect of the plots indicated in the
writ petition on 9.12.2005, 30.11.2005 and 23.6.2006. The period of the
mining lease of the petitioners were further extended by the State. As per
Rule 6A of the Minor Minerals (Concession) Rules, 1963, the petitioners, after
completing all the necessary formalities, have submitted applications for
renewal of their mining leases on the prescribed Form. The applications were
submitted within time, that is, on 25.11.2008, but no action was taken on the
application seeking renewal and as such the petitioners had filed revision
before the State Government requesting therein that the leases may be
extended/renewed. Emphasis had been laid down by the petitioners that
during the entire period of mining lease, their performance remained
satisfactory without there being any complaint and they had always acted in
accordance with law. The State Government without appreciating the extreme
urgency in the mater did not issue any direction to the District Magistrate for
renewing the leases sought for, fixed a long date for hearing of the matter.
The petitioners were indicated that because of an interim order passed by the
Lucknow Bench of this Court on 3.5.2010 in Writ Petition No. 3967 (M/B) of
2010, Abdul Haq vs. State of U.P. and others, the mining leases in entire U.P.
cannot be renewed, though the petitioners have submitted before the
respondents that as per the Statutory Rules, the leases have to be renewed.
The petitioners have discharged their burden in a legal and valid manner.
Moreover, the Statutory Rules shall prevail over some observations made in an
interim order, that too in a particular case.
The attention of the Court has been drawn that the Rainy Season is
approaching and during the Rainy Season, that is, for about for four months,
mining operations on river beds remain stalled.
Heard learned counsel for the parties and perused the record.
A similar controversy has been raised in Writ -C No.34910 of 2010,
Vikas Agarwal Vs. State of U.P. and others, before a Division Bench of this
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Court at Allahabad where the similarly circumstanced petitioner has also
sought renewal of his mining lease. The Division Bench of this Court, while
dealing with the controversy, has passed following order on 17.6.2010:-
“This writ petition has been filed praying for issuance of a writ of mandamus
commanding the respondent authorities to accept and process the application
for renewal of mining lease of the petitioner and further to renew the mining
lease. Further prayer made is that a writ of mandamus be issued commanding
the respondent authorities to settle the minor minerals bearing areas in the
State of U.P. by way of grant of lease application i.e. by adopting the
provisions contained in Chapter II of the U.P. Minor Minerals (Concession)
Rules, 1963 (hereinafter referred to as the 1963 Rules) as per the policy laid
down by the Government Order dated 16.10.2004.
The petitioner claims to have been granted a mining lease, executed on
29.3.2008, for a period of three years for extraction of sand from Khasra
No.228 situate at village Bidauli, Tahsil Kairana, District Muzaffarnagaar
measuring 20.480 hecteres. Copy of the lease deed has been filed as Annexure
4. As stated above, the period of lease being three years it was to come to an
end on 28.3.2011.
Chapter II of 1963 Rules, provides for grant of mining lease on application and
also for renewal of mining lease. For the said purpose the applications for
renewal are to be submitted in form MM-1(A) to be submitted at least 6
months prior to the expiry of lease. The petitioner has submitted an application
on 01.06.2010 for renewal of his mining lease for sand which is due to expire
in March, 2011, well within time. However the same is not being entertained
by the respondents. According to the petitioner there is a hurdle in
consideration of the said application in view of the interim order dated
3.5.2010 passed by a Division Bench of the Lucknow Bench of this Court in
Writ Petition No.3967 of 2010 (M/B), Abdul Haq versus State of U.P. and
others which has relied upon the following decisions-
(i) 2006 (24) LCD 59 Ram Kumar and others versus State of U.P. and others
(FB).
(ii) 2004 (22) LCD 86 Feru versus State of U.P. and others (FB).
(iii)2006 (24) LCD 1243 Chandrika Prasad Nishad versus State of U.P. and
others.
By the said interim order the State Government has been restrained from
granting any mining lease through negotiation or renewal without publication
in newspapers. Faced with this situation the present writ petition has been filed
for appropriate direction.
We have heard Sri H.R. Mishra, learned Senior Advocate assisted by Sri
Rakesh Pandey, Advocate on behalf of the petitioner, Sri S.G. Hasnain, learned
Additional Advocate General assisted by Sri A.B. Shukla, learned Standing
Counsel on behalf of the respondent nos.1 to 5.
The respondents are granted a months’ time to file counter affidavit. Petitioner
will have two weeks thereafter to file rejoinder affidavit. List after the expiry of
the aforesaid period.
The submissions advanced on behalf of the petitioner is that reliance on the
Full Bench decisions placed upon by the Division Bench in the case of Abdul
Haq (supra) while passing the said interim order dated 3.5.2010 is misplaced
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and is liable to be ignored for the reason that the two Full Bench decisions
relied upon in the said interim order do not relate to the cases arising out of
the 1963 Rules but relate to grant of Fisheries Lease under various
Government Orders compiled in the U.P. Gram Sabha Manual. Further
according to the learned counsel for the petitioner under 1963 Rules, there is a
specific provision for grant of renewal of the mining lease granted under the
provisions of Chapter II of the 1963 Rules.
On the other hand learned counsel for the respondents sought to justify the
order passed in the case of Abdul Haq (supra) and according to them till such
time as the Writ Petition is not finally disposed of, any direction issued by this
Court would be in conflict with the interim order dated 3.5.2010 as such the
hearing of this writ petition be deferred till final decision in the case of Abdul
Haq (supra).
Having heard the submissions we may record at the out set
that the interim orders are not binding and a bench of
coordinate jurisdiction can always pass a different interim
orders subject to the reasons being recorded for not
following the interim order in the earlier pending cases. Such
an order would not amount to any impropriety nor would in
any manner affect the judicial discipline.
The State of U.P. has framed the 1963 Rules, under section 15 of the Mines
and Minerals (Development and Regulation) Act, 1957. The mining rights with
regard to the minor minerals are granted under the provisions of the 1963
Rules. The Chapter II and Chapter IV of the 1963 Rules deal with the
procedure to be adopted for grant of mining rights. Under Chapter II mining
rights can be granted on an application and there is provision for renewal also.
Whereas under Chapter IV grant can be made only by way of public auction. It
is at the discretion of the State Government to notify the areas for grant of
mining rights whether to fall under Chapter II or Chapter IV. In the present
case the area covered by the mining lease of the petitioner falls under Chapter
II as such we are dealing with the procedure provided under chapter II of the
1963 Rules. The scheme of Chapter II will be apparent from the Rule 5, 6 & 6A
thereof. The same are quoted hereunder.
“5. Application for grant of renewal of mining lease.-(1) An application Form
MM-1 for grant of mining lease or in Form MM-1(a) for renewal there shall shall
be addressed to the State Government.
(2) The application referred to in sub-rule (1) shall be submitted in
quadruplicate to the District Officer or to the officer authorised in this behalf by
the State Government. Such officer shall endorse the receipt of the application
on all the four copies entering the place, time and date of receipt. One copy
shall be returned immediately to the person presenting the application.
(3) The application referred to in sub-rule (1) shall be entered in a register of
mining application in Form MM-2.
6. Application fee and deposit for grant of mining lease.-(1) Every application
for grant of a mining lease shall be accompanied by-
(a) a fee one thousand rupee,
(b) a deposit of two thousand rupees for meeting the preliminary expenses,
other than those specified in Rule 17, and
(c) four copies of the cadastral survey map on which the areas applied for is
clearly marked and in case such area is not covered by cadastral survey, four
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copies of topographical survey map on a scale a least 4″=1 mile, on which the
area applied for is accurately marked.
(d) a certificate, issued by the District Officer or by such officer as may be
authorised by the District Officer in this behalf, showing that no mining dues
are outstanding against the applicant;
Provided that further that such certificate shall not be required where the
applicant has furnished an affidavit to the satisfaction of the State
Government, stating that he does not hold or had not held any mining lease or
any other mineral concession in the territory of the Sate.
(e) a certificate of caste and residence of the applicant, where the application
is for mining lease of sand or morrum or bajri or boulder or any of these in
mixed state.
(f) a character certificate given by the District Officer of the District, where the
applicant permanently resides.
(2) If the application is not complete in any respect or is not accompanied by
the fee deposit or the documents mentioned in sub-rule (1) the district Officer
or the officer authorised by the State Government in this behalf, shall, by
fifteen days notice require the applicnat to complete the application in all
respect or, to deposit the fee or furnish the documents within such time as
may be specified in the notice and jf the applicant to do so within the specified
time such application shall not be considered.
6-A Application fee etc. for renewal of mining lease.-(1) An application for
renewal of mining lease may be made atleast six months before the date of
expiry of the mining lease alongwith four copies of the map of lease hold areas
showing clearly the area applied for renewal and the provisions of clause (a)
and (d) of sub-rule (1) of Rule 6 shall mutatis mutandis apply .
(2) The State Government may condone the delay cause in making the
application for renewal of mining lease after the period specified in sub-rule
(1).”
We thus, find that there is a statutory provision under Rule 6A for renewal of
mining lease granted under the provisions of Chapter II. Further the question
with regard to notifying the various areas under Chapter II and Chapter IV
under the provisions of rules 23 and 24 of the 1963 Rules at the direction of
the State Government has also been held to be valid by the various
pronouncements. Reference may be had to the following decisions-
(i) Civil Misc. Writ Petition No.5033 of 2005, Brajesh Singh versus State of U.P.
and others decided on 04.02.2005.
(ii) C.M.W.P. Nos. 46770, 49799, 50312, 50418, 50606 and 50561 of 2004,
Satyendra Kumar Tripathi and etc. State of U.P. and Anr. etc. decided on
23.12.2004.
(iii) Civil Appeals No.14748-49 of 1996, Prem Nath Sharma versus State of
U.P. and another decided on 09.04.1997.
The interim order dated 3.5.2010 passed in the case of Abdul Haq (supra),
does not deal with the aforesaid provisions and the judicial pronouncements. It
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has merely relied upon the two Full Bench decisions with regard to the grant of
fisheries lease. The grant of fisheries lease is provided under Para 60 and its
sub paras of the U.P. Gram Sabha Manual which is a compilation of
Government Orders under the provisions of the U.P. Zamindari Abolition and
Land Reforms Act, 1952, the Rules framed thereunder, the U.P. Panchayat Raj
Act, 1947, and the Rules framed thereunder as also by the Board of Revenue
from time to time. The two Full Bench decisions have held that Para 60(2) (ka)
which provides for renewal is ultra vires Article 14 of the Constitution. Based
on the same a blanket injunction order has been issued restraining the State
Government to grant mining lease through renewal or negotiation without
notifying in the daily newspaper or public auction.
The statutory rules 5, 6 and 6A of the 1963 Rules have not been held to be
ultra vires. They have not been struck down by any pronouncement. So long
as they remain on the statute Book they cannot be ignored, nor will they lose
their force. The basis of the interim order dated 03.05.2010 in the case of
Abdul Haq (supra) appears to be misplaced.
We are thus, unable to agree with the reasoning given in the interim order
dated 3.5.2010 and therefore, as an interim measure we direct that the
respondents shall entertain and process the renewal application submitted on
1.6.2010 in Form MM-1(A) (Annexure 1 to the writ petition) by the petitioner
in accordance with law, under the provisions contained in Chapter II of 1963
Rules, ignoring the interim order dated 03.05.2010 passed in the case of Abdul
Haq (supra).”
This Court is in respectful agreement with the findings and observations
recorded by the Division Bench of this Court at Allahabad on 17.6.2008. The
renewal application cannot be kept pending for such a long time. There
appears to be no legal hurdle in processing the application.
Accordingly, in respectful agreement with the findings and observations
recorded by the Division Bench of this Court at Allahabad in its order dated
17.6.2010, as an interim measure, till further orders of the Court, operation
and execution of the notice dated 20.8.2009, Annexure-8 to the writ petition
and the letter dated 28.4.2010 shall remain stayed and it is provided that the
respondents shall entertain and process the application of the petitioners for
renewal of the lease, (copies of which are annexed as Annexure-7 to the writ
petition), within two weeks’ from the date of presentation of a certified copy of
this order, keeping in mind above observations and ignoring the interim order
dated 3.5.2010, passed in the case of Abdul Haq (Supra) by a Division Bench
at Lucknow. All the necessary consequences including execution of lease deed
and further actions shall follow. The revisional Authority/State Government
shall now be guided by the order passed by the Division Bench of this Court
on 17.6.2010 and this order while deciding the matter.
18.6.2010
bgs/-
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