{"id":267441,"date":"2010-06-18T00:00:00","date_gmt":"2010-06-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/samarpal-singh-vs-state-of-u-p-and-others-on-18-june-2010"},"modified":"2016-12-27T09:09:10","modified_gmt":"2016-12-27T03:39:10","slug":"samarpal-singh-vs-state-of-u-p-and-others-on-18-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/samarpal-singh-vs-state-of-u-p-and-others-on-18-june-2010","title":{"rendered":"Samarpal Singh vs State Of U.P. And Others on 18 June, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Samarpal Singh vs State Of U.P. And Others on 18 June, 2010<\/div>\n
                                                                   Court No.10\n                       Writ Petition No. 35946 of 2010\nSamarpal Singh & others                   Vs.     State of U.P. & others\n                                --------------------\nHon'ble Rakesh Sharma, J.\n<\/pre>\n
       Learned Standing Counsel has accepted notice on behalf of the
\nrespondents.      He prays for and is allowed six weeks’ time to file counter
\naffidavit.    Rejoinder affidavit, if any, may be filed within four weeks’ next
\nthereafter.\n<\/p>\n
       List in the last week of September, 2010.\n<\/p>\n
       Heard learned counsel for the petitioners and the learned Standing
\nCounsel, appearing for the respondents.\n<\/p>\n
       The petitioners were granted leases for excavation of Sand, Bajari and
\nMurrum etc. for a period of three years, in respect of the plots indicated in the
\nwrit petition on 9.12.2005, 30.11.2005 and 23.6.2006.         The period of the
\nmining lease of the petitioners were further extended by the State.        As per
\nRule 6A of the Minor Minerals (Concession) Rules, 1963, the petitioners, after
\ncompleting all the necessary formalities, have submitted applications for
\nrenewal of their mining leases on the prescribed Form. The applications were
\nsubmitted within time, that is, on 25.11.2008, but no action was taken on the
\napplication seeking renewal and as such the petitioners had filed revision
\nbefore the State Government requesting therein that the leases may be
\nextended\/renewed.       Emphasis had been laid down by the petitioners that
\nduring       the entire period of mining lease, their performance remained
\nsatisfactory without there being any complaint and they had always acted in
\naccordance with law. The State Government without appreciating the extreme
\nurgency in the mater did not issue any direction to the District Magistrate for
\nrenewing the leases sought for, fixed a long date for hearing of the matter.
\nThe petitioners were indicated that because of an interim order passed by the
\nLucknow Bench of this Court on 3.5.2010 in Writ Petition No. 3967 (M\/B) of
\n2010, Abdul Haq vs. State of U.P. and others<\/a>, the mining leases in entire U.P.
\ncannot be renewed, though the petitioners have submitted before the
\nrespondents that as per the Statutory Rules, the leases have to be renewed.
\nThe petitioners have discharged their burden in a legal and valid manner.
\nMoreover, the Statutory Rules shall prevail over some observations made in an
\ninterim order, that too in a particular case.\n<\/p>\n
       The attention of the Court has been drawn that the Rainy Season is
\napproaching and during the Rainy Season, that is, for about for four months,
\nmining operations on river beds remain stalled.\n<\/p>\n
       Heard learned counsel for the parties and perused the record.
\n       A similar controversy has been raised in Writ -C No.34910 of 2010,
\nVikas Agarwal Vs. State of U.P. and others, before a Division Bench of this
\n                                                                                   2<\/span><\/p>\n
Court at Allahabad where the similarly circumstanced petitioner has also
\nsought renewal of his mining lease.      The Division Bench of this Court, while
\ndealing with the controversy, has passed following order on 17.6.2010:-\n<\/p>\n
“This writ petition has been filed praying for issuance of a writ of mandamus
\ncommanding the respondent authorities to accept and process the application
\nfor renewal of mining lease of the petitioner and further to renew the mining
\nlease. Further prayer made is that a writ of mandamus be issued commanding
\nthe respondent authorities to settle the minor minerals bearing areas in the
\nState of U.P. by way of grant of lease application i.e. by adopting the
\nprovisions contained in Chapter II of the U.P. Minor Minerals (Concession)
\nRules, 1963 (hereinafter referred to as the 1963 Rules) as per the policy laid
\ndown by the Government Order dated 16.10.2004.\n<\/p>\n
The petitioner claims to have been granted a mining lease, executed on
\n29.3.2008, for a period of three years for extraction of sand from Khasra
\nNo.228 situate at village Bidauli, Tahsil Kairana, District Muzaffarnagaar
\nmeasuring 20.480 hecteres. Copy of the lease deed has been filed as Annexure\n<\/p>\n
4. As stated above, the period of lease being three years it was to come to an
\nend on 28.3.2011.\n<\/p>\n
Chapter II of 1963 Rules, provides for grant of mining lease on application and
\nalso for renewal of mining lease. For the said purpose the applications for
\nrenewal are to be submitted in form MM-1(A) to be submitted at least 6
\nmonths prior to the expiry of lease. The petitioner has submitted an application
\non 01.06.2010 for renewal of his mining lease for sand which is due to expire
\nin March, 2011, well within time. However the same is not being entertained
\nby the respondents. According to the petitioner there is a hurdle in
\nconsideration of the said application in view of the interim order dated
\n3.5.2010 passed by a Division Bench of the Lucknow Bench of this Court in
\nWrit Petition No.3967 of 2010 (M\/B), Abdul Haq versus State of U.P. and
\nothers which has relied upon the following decisions-\n<\/p>\n
(i) 2006 (24) LCD 59 Ram Kumar and others versus State of U.P. and others
\n(FB).\n<\/p>\n
(ii) 2004 (22) LCD 86 Feru versus State of U.P. and others (FB).\n<\/p>\n
(iii)2006 (24) LCD 1243 Chandrika Prasad Nishad versus State of U.P. and
\nothers.\n<\/p>\n
By the said interim order the State Government has been restrained from
\ngranting any mining lease through negotiation or renewal without publication
\nin newspapers. Faced with this situation the present writ petition has been filed
\nfor appropriate direction.\n<\/p>\n
We have heard Sri H.R. Mishra, learned Senior Advocate assisted by Sri
\nRakesh Pandey, Advocate on behalf of the petitioner, Sri S.G. Hasnain, learned
\nAdditional Advocate General assisted by Sri A.B. Shukla, learned Standing
\nCounsel on behalf of the respondent nos.1 to 5.\n<\/p>\n
The respondents are granted a months’ time to file counter affidavit. Petitioner
\nwill have two weeks thereafter to file rejoinder affidavit. List after the expiry of
\nthe aforesaid period.\n<\/p>\n
The submissions advanced on behalf of the petitioner is that reliance on the
\nFull Bench decisions placed upon by the Division Bench in the case of Abdul
\nHaq (supra) while passing the said interim order dated 3.5.2010 is misplaced
\n                                                                                   3<\/span><\/p>\n
and is liable to be ignored for the reason that the two Full Bench decisions
\nrelied upon in the said interim order do not relate to the cases arising out of
\nthe 1963 Rules but relate to grant of Fisheries Lease under various
\nGovernment Orders compiled in the U.P. Gram Sabha Manual. Further
\naccording to the learned counsel for the petitioner under 1963 Rules, there is a
\nspecific provision for grant of renewal of the mining lease granted under the
\nprovisions of Chapter II of the 1963 Rules.\n<\/p>\n
On the other hand learned counsel for the respondents sought to justify the
\norder passed in the case of Abdul Haq (supra) and according to them till such
\ntime as the Writ Petition is not finally disposed of, any direction issued by this
\nCourt would be in conflict with the interim order dated 3.5.2010 as such the
\nhearing of this writ petition be deferred till final decision in the case of Abdul
\nHaq (supra).\n<\/p>\n
Having heard the submissions we may record at the out set
\nthat the interim orders are not binding and a bench of
\ncoordinate jurisdiction can always pass a different interim
\norders subject to the reasons being recorded for not
\nfollowing the interim order in the earlier pending cases. Such
\nan order would not amount to any impropriety nor would in
\nany manner affect the judicial discipline.\n<\/p>\n
The State of U.P. has framed the 1963 Rules, under section 15<\/a> of the Mines
\nand Minerals (Development and Regulation) Act<\/a>, 1957. The mining rights with
\nregard to the minor minerals are granted under the provisions of the 1963
\nRules. The Chapter II and Chapter IV of the 1963 Rules deal with the
\nprocedure to be adopted for grant of mining rights. Under Chapter II mining
\nrights can be granted on an application and there is provision for renewal also.
\nWhereas under Chapter IV grant can be made only by way of public auction. It
\nis at the discretion of the State Government to notify the areas for grant of
\nmining rights whether to fall under Chapter II or Chapter IV. In the present
\ncase the area covered by the mining lease of the petitioner falls under Chapter
\nII as such we are dealing with the procedure provided under chapter II of the
\n1963 Rules. The scheme of Chapter II will be apparent from the Rule 5, 6 & 6A
\nthereof. The same are quoted hereunder.\n<\/p>\n
“5. Application for grant of renewal of mining lease.-(1) An application Form
\nMM-1 for grant of mining lease or in Form MM-1(a) for renewal there shall shall
\nbe addressed to the State Government.\n<\/p>\n
(2) The application referred to in sub-rule (1) shall be submitted in
\nquadruplicate to the District Officer or to the officer authorised in this behalf by
\nthe State Government. Such officer shall endorse the receipt of the application
\non all the four copies entering the place, time and date of receipt. One copy
\nshall be returned immediately to the person presenting the application.\n<\/p>\n
(3) The application referred to in sub-rule (1) shall be entered in a register of
\nmining application in Form MM-2.\n<\/p>\n
6. Application fee and deposit for grant of mining lease.-(1) Every application
\nfor grant of a mining lease shall be accompanied by-\n<\/p>\n
(a) a fee one thousand rupee,\n<\/p>\n
(b) a deposit of two thousand rupees for meeting the preliminary expenses,
\nother than those specified in Rule 17, and\n<\/p>\n
(c) four copies of the cadastral survey map on which the areas applied for is
\nclearly marked and in case such area is not covered by cadastral survey, four
\n                                                                                   4<\/span><\/p>\n
copies of topographical survey map on a scale a least 4″=1 mile, on which the
\narea applied for is accurately marked.\n<\/p>\n
(d) a certificate, issued by the District Officer or by such officer as may be
\nauthorised by the District Officer in this behalf, showing that no mining dues
\nare outstanding against the applicant;\n<\/p>\n
Provided that further that such certificate shall not be required where the
\napplicant has furnished an affidavit to the satisfaction of the State
\nGovernment, stating that he does not hold or had not held any mining lease or
\nany other mineral concession in the territory of the Sate.\n<\/p>\n
(e) a certificate of caste and residence of the applicant, where the application
\nis for mining lease of sand or morrum or bajri or boulder or any of these in
\nmixed state.\n<\/p>\n
(f) a character certificate given by the District Officer of the District, where the
\napplicant permanently resides.\n<\/p>\n
(2) If the application is not complete in any respect or is not accompanied by
\nthe fee deposit or the documents mentioned in sub-rule (1) the district Officer
\nor the officer authorised by the State Government in this behalf, shall, by
\nfifteen days notice require the applicnat to complete the application in all
\nrespect or, to deposit the fee or furnish the documents within such time as
\nmay be specified in the notice and jf the applicant to do so within the specified
\ntime such application shall not be considered.\n<\/p>\n
6-A Application fee etc. for renewal of mining lease.-(1) An application for
\nrenewal of mining lease may be made atleast six months before the date of
\nexpiry of the mining lease alongwith four copies of the map of lease hold areas
\nshowing clearly the area applied for renewal and the provisions of clause (a)
\nand (d) of sub-rule (1) of Rule 6 shall mutatis mutandis apply .\n<\/p>\n
(2) The State Government may condone the delay cause in making the
\napplication for renewal of mining lease after the period specified in sub-rule
\n(1).”\n<\/p>\n
We thus, find that there is a statutory provision under Rule 6A for renewal of
\nmining lease granted under the provisions of Chapter II. Further the question
\nwith regard to notifying the various areas under Chapter II and Chapter IV
\nunder the provisions of rules 23 and 24 of the 1963 Rules at the direction of
\nthe State Government has also been held to be valid by the various
\npronouncements. Reference may be had to the following decisions-\n<\/p>\n
(i) Civil Misc. Writ Petition No.5033 of 2005, Brajesh Singh versus State of U.P.
\nand others decided on 04.02.2005.\n<\/p>\n
(ii) C.M.W.P. Nos. 46770, 49799, 50312, 50418, 50606 and 50561 of 2004,
\nSatyendra Kumar Tripathi and etc. State of U.P. and Anr. etc. decided on
\n23.12.2004.\n<\/p>\n
(iii) Civil Appeals No.14748-49 of 1996, Prem Nath Sharma versus State of
\nU.P. and another decided on 09.04.1997.\n<\/p>\n
The interim order dated 3.5.2010 passed in the case of Abdul Haq (supra),
\ndoes not deal with the aforesaid provisions and the judicial pronouncements. It
\n                                                                                5<\/span><\/p>\n
has merely relied upon the two Full Bench decisions with regard to the grant of
\nfisheries lease. The grant of fisheries lease is provided under Para 60 and its
\nsub paras of the U.P. Gram Sabha Manual which is a compilation of
\nGovernment Orders under the provisions of the U.P. Zamindari Abolition and
\nLand Reforms Act, 1952, the Rules framed thereunder, the U.P. Panchayat Raj
\nAct, 1947, and the Rules framed thereunder as also by the Board of Revenue
\nfrom time to time. The two Full Bench decisions have held that Para 60(2) (ka)
\nwhich provides for renewal is ultra vires Article 14<\/a> of the Constitution. Based
\non the same a blanket injunction order has been issued restraining the State
\nGovernment to grant mining lease through renewal or negotiation without
\nnotifying in the daily newspaper or public auction.\n<\/p>\n
The statutory rules 5, 6 and 6A of the 1963 Rules have not been held to be
\nultra vires. They have not been struck down by any pronouncement. So long
\nas they remain on the statute Book they cannot be ignored, nor will they lose
\ntheir force. The basis of the interim order dated 03.05.2010 in the case of
\nAbdul Haq (supra) appears to be misplaced.\n<\/p>\n
We are thus, unable to agree with the reasoning given in the interim order
\ndated 3.5.2010 and therefore, as an interim measure we direct that the
\nrespondents shall entertain and process the renewal application submitted on
\n1.6.2010 in Form MM-1(A) (Annexure 1 to the writ petition) by the petitioner
\nin accordance with law, under the provisions contained in Chapter II of 1963
\nRules, ignoring the interim order dated 03.05.2010 passed in the case of Abdul
\nHaq (supra).”\n<\/p>\n
      This Court is in respectful agreement with the findings and observations
\nrecorded by the Division Bench of this Court at Allahabad on 17.6.2008. The
\nrenewal application cannot be kept pending for such a long time. There
\nappears to be no legal hurdle in processing the application.\n<\/p>\n
      Accordingly, in respectful agreement with the findings and observations
\nrecorded by the Division Bench of this Court at Allahabad in its order dated
\n17.6.2010, as an interim measure, till further orders of the Court, operation
\nand execution of the notice dated 20.8.2009, Annexure-8 to the writ petition
\nand the letter dated 28.4.2010 shall remain stayed and it is provided that the
\nrespondents shall entertain and process the application of the petitioners for
\nrenewal of the lease, (copies of which are annexed as Annexure-7 to the writ
\npetition), within two weeks’ from the date of presentation of a certified copy of
\nthis order, keeping in mind above observations and ignoring the interim order
\ndated 3.5.2010, passed in the case of Abdul Haq (Supra) by a Division Bench
\nat Lucknow. All the necessary consequences including execution of lease deed
\nand further actions shall follow.   The revisional Authority\/State Government
\nshall now be guided by the order passed by the Division Bench of this Court
\non 17.6.2010 and this order while deciding the matter.
\n18.6.2010
\nbgs\/-\n<\/p>\n
 6<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Samarpal Singh vs State Of U.P. And Others on 18 June, 2010 Court No.10 Writ Petition No. 35946 of 2010 Samarpal Singh & others Vs. State of U.P. & others ——————– Hon’ble Rakesh Sharma, J. Learned Standing Counsel has accepted notice on behalf of the respondents. He prays for and is allowed […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-267441","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nSamarpal Singh vs State Of U.P. 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