| SooperKanoon Citation | sooperkanoon.com/463361 |
| Subject | Commercial |
| Court | Allahabad High Court |
| Decided On | Dec-11-1997 |
| Case Number | C.M.W.P. No. 27945 of 1997, along with C.M.W.P. Nos. 23762, 23808 and 23832 of 1997 |
| Judge | Palok Basu and; M.L. Singhal, JJ. |
| Reported in | 1998(1)AWC779 |
| Acts | Uttar Pradesh Minor Minerals (Concession) Rules, 1963 - Rules 6, 20, 23(1), 24, 24(4) and (5), 24A , 25, 56 and 72 |
| Appellant | Jagmohan Dutt Sharma |
| Respondent | State of U.P. and Others |
| Appellant Advocate | P. Sahai, Adv. |
| Respondent Advocate | S.C., ;S.G. Hasnain, ;M.K. Rajvanshi and ;S.P. Singh, Advs. |
Palok Basu and M.L. Singhal, JJ.
1. While coming to hear the mining mineral matters, three sets of writ petitions came up for discussion. Since some of the counsel were appearing in many of the cases inasmuch as quite a few factual questions were over-lapping, all the writ petitions of three respective sets were heard together. But, in order to facilitate disposal of the respective petitions in the three sets, those shall be decided by separate judgments, one set following the other.
In this set of writ petitions, the preliminary question involved is, the validity of the G.O, of the State Government, dated 25.5.1995, wherein it has been made possible to issue a lease in favour of a person who Is found to be the discoverer of a new area, which contains mining minerals, in pursuance of which lease is executable in his favour without publication of any notice.
2. Jagmohan Dutt Sharma petitioner, in Writ Petition No. 27945 of 1977 heard along with the Writ Petition No. 14329 of 1990, is aggrieved by a proposed action of the respondents trying to grant mining lease in favour of any person with regard to village Nivada. Tahsil Bagpat, district Meerut without deciding the application of the petitioner dated 5.8.1977. It may be mentioned here that the petitioner has also made the ancillary prayer that the respondents should be asked to decide the question as to who first discovered the mining area, for which, the petitioner made his application dated 5.8.1997.
3. It may be mentioned here that this writ petition was filed on 21.8.1997 and during the pendency of the writ petition, wherein no interim order has been passed, admittedly, lease deed has been executed on 22.10.1997 in favour of one Brij Pal Singh, who has made an impleadment application in this case and has filed affidavit as well as counter-affidavit as the contingency required. In paragraph 15 of the supplementary counter-affidavit, it has been stated that:
'........ the District Magistrate sanctioned the lease in favour ofthe deponent on 13.10.1997 and lease has been executed on 22.10.1997. The deponent has deposited the requisite royalty and the deponent is excavating and lifting the sand.'
Shri Murlidhar assisted by Shri P. Sahai, has been heard at considerable length for the petitioner Jagmohan Dutt Sharma. Shri N. C. Rajvanshl and Shri S. P. Singh have been heard on behalf of the Impleaded opposite parry Brij Pal Singh, and Shri S. G. Hasnain and Shri Virendra Kumar have been heard for the State and State officials.
4. In Writ Petition No. 23762 of 1997, a mining area said to have been found out by Moti, son of Jhabban, has been settled by the order of the Additional District Magistrate. Jyotiba Phulley Nagar, dated 11 July, 1997. This mining area Is situated in village Gandawali, district Jyotiba Phulley Nagar.
5. Similarly. In Writ Petition No. 23808 of 1977 a mining area said to have been found out by Chhuttan, son of Moti, has been settled by the order of the Additional District Magistrate. Jyotiba Phulley Nagar dated 11 July. 1997. The said mining area is situated in village Kabirpur (Atmail).
6. Likewise, in Writ Petition No. 23832 of 1997, a mining area said to have been found out by Kaley, son of Moti, has been settled by the order of the Additional District Magistrate, Jyotiba Phulley Nagar, dated 11 July, 1997. The said mining area is situated in village Dayawall, district Moradabad, now under District Jyotiba Phulley Nagar.
7. One additional fact may be noted since that relates to the writ petition of Jagmohan Dutt Sharma. It has been stated that the petitioner had made an application as early as on 14.10.1988 relating to grant of mining lease in his favour. A series of litigations took place beginning with a writ petition which was disposed of by Division Bench of this Court on 12.10.1988 asking the respondents to deal with the application of the petitioner if 'all the plots have not been auctioned and there are some plots which are still lying vacant, in respect of which lease can be granted under the Mining Minerals (Concession) Rules, 1963. In case the petitioner has moved such an application before the appropriate authority, the same shall be dealt with in accordance with the rules.
8. The aforesaid application came to be decided, against which the petitioner went up to the Tribunal and orders were passed with no relief to the petitioner. In the meantime, however, the policy with regard to grant of mining lease underwent a drastic change in the State of Uttar Pradesh. By the order dated 27.4.1994 State of Uttar Pradesh came out with new mining policy, doing away with the old rules and making available all the mining area for settlement by lease. Simultaneously, the State Government took a further decision, as noted above, vide its order dated 25.5.1995, which provides that any person who will find out a new mining area, his application shall be decided on the basis of 'first come first serve (Prarham Aawat Pratham Pawat). A combined reading of the provisions contained in the Central Act and the State Rules lead to the irresistible conclusion that when a new area comes into being and is available or is made available for settlement by lease as a new mining area. Rule 72 of State Rules will not apply.
9. Before going into further discussions, it may be mentioned that when the petitioner Jagmohan Dutt Sharma's Revision before the Tribunal against the order of the District Magistrate failed and was dismissed on 31.1.1990, the petitioner filed Writ Petition No. 14329 of 1990. This Writ Petition No. 14329 of 1990 has been dismissed in default by a Division Bench of this Court on 7.7.1997, in which restoration application is pending. As prayed by the learned counsel for the parties, the said writ petition was also summoned and is being heard together.
10. The changed policy of the State Government requires an application in a particular form only which may Justify an applicant to claim a settlement of lease in his favour. The petitioner alleges that he made an application on 5.8.1997 and that what he wishes should be decided by the respondents through this Court's writ. The objection raised on behalf of the respondents is that this application is neither an application according to the present rules nor requires to be taken note of because of two further reasons. The application of the petitioner related to village Nivada, Slsana, Khandwari and Nagla Bahlolpur. The District Magistrate already granted lease with regard to the area in villages Sisana and Khandwari vide orders passed on 17.2.1990. Similarly, for the year 1991, the Prabhari Adhikari granted lease on 29.6.1991. It Is argued that the petitioner's earlier writ petition was disposed of with the direction that if any area is remaining then only his application may be considered. From what has been stated above, it emerges that with regard to villages Sisana and Khandwari as well as- Nagla Bahlolpur, orders have been passed. Niyada village was also included in the application, but no order concerning any area of Nivada was passed.
11. The petitioner, therefore, could make an application in accordance with the rules as applicable today, if he had claimed to be a discoverer of any areain Nivada, which became subject-matter of lease which has been granted to Brij Pal Singh, it has already been noted that the respondents have found opposite party Brij Pal Singh as the applicant for the area, for which lease has been settled in Nivada by the order dated 13.10.1997.
12. Even if the matter on restoration is allowed, the petitioner Jagmohan Dutt Sharma cannot get any relief concerning those plots of village Nivada, for which settlement has been made in favour of Brij Pal Singh. In this view of the matter, there is force in the arguments of the respondents that the aforesaid order in favour of Brij Pal Singh puts an end to the controversy in regard to the claim of petitioner Jagmohan Dutt Sharma for the plots settled already by the District Magistrate.
13. There is neither any material nor any basis on which this Court can interfere with the finding of fact recorded by the District Magistrate that Brij Pal Singh is the discoverer for the area for which he has made an application for lease. It was pointed out that Nivada village has excessive mining area and only that portion which has been claimed by Brij Pal Singh as being the discoverer thereof has become the subject-matter of the order dated 23.10.1997.
14. The question, therefore, in all the writ petitions which survives to be examined is, whether the policy of the State Government in declaring a person as 'first come first serve' being the discoverer is valid and can be sustained in law?
15. Shri Vijendra Singh appearing for the petitioners Dharmveer, Satyavrat and Raja Ram, vehemently argued that a combined look at the provisions of Central Act and the Rules will not make, it permissible for the State Government to rely upon the G.O., dated 25 May. 1995 in order to settle an area with a person claiming to be discoverer thereof. Likewise, the argument of Shri Murlidhar was that the very purpose of change in the mining policy of the State brought about in the year 1994 is likely to be frustrated if such a choice which is arbitrary according to him, is left to the mining authorities for settling areas with the persons claiming to be discoverers thereof. It was contended by both the learned counsel that the said G.O. should be declared ultra wires Articles 14 and 19 of the Constitution of India.
16. Reliance was placed on Rule 72 of the State Rules on the basis of which it was contended that even if a new area comes into existence, it should be taken to be a mining area within the meaning of Rule 72 and, therefore, since that rule makes notice mandatory, in the instant cases the alleged settlement with the respondents treating them as discoverer, should be interfered with.
17. For ready reference Rule 72 as it exists is quoted below :
' 72. Availability of area for regrant on mining lease to be notified :
(1) If any area, which was held under a mining lease under Chapter II or on reserved under Section 17A of the Act, becomes available for regrant, the District Officer shall notify the availability of the area through a notice on mining lease inviting for applications for grant of mining lease specifying a date, which shall not be earlier than thirty days from the date of notice and giving description of such area and a copy of such notice shall be displayed on the notice board of his office and shall also be sent to the Tahsildar of such area and the Director.
(2) The applications for grant of mining lease under sub-rule 1 shall be received within seven working days from the date specified in the notice referred to in the said sub-rule, if, however, the number of applications received for any area is less than three, the District Officer may further extend the period for seven more working days and If even thereafter, the number of applications remain less than three, the District Officer shall notify the availability of the area afresh in accordance with the said sub-rule.
(3) An application for grant of mining lease for such area which is already held under a lease or notified under sub-rule 1 of Rule 23 or reserved under Section 17A of the Act, and whose availability has not been notified under sub-rule 1 shall be deemed to be premature and shall not be considered and the application fee thereon if paid shall be refunded.'
18. Shri S. G. Hasnain and Shri Virendra Kumar appearing for the State, however, very rightly drew attention of the Court to the three provisions in the State Rules contained in Rules 20, 25 and 56. It may be mentioned here that Chapter II of the State Rules deals with the grant of mining lease and by Rule 20 in that Chapter, declared mining area available to the State Government for the purposes of lease is mentioned. Likewise, Rule 25 exists in Chapter IV which deals with the auction lease and, therefore, the said Rule 25 maintains the area in the register, notified for auction or tender-cum-auction. Chapter VI deals with the mining permits and Rule 56 exists therein which talks of maintaining a register for the mining area available for grant of mining permit.
19. In other words, the entire mining area in the State has to be covered within the mining area as described in the three registers maintained under the aforesaid three rules.
20. What should happen, therefore. If some further mining area for the purposes of said rules is found out? Rule 72 has already been quoted above. It takes note of area which is available for re-grant. Even if it is assumed that regrant may include the word 'grant', the notice requirement will be necessary only if the area is already notified as mining area. So long as the area found as new' area is not maintained and notified as mining area in any of the three registers maintained, it is bound to be declared a new area. This being so, the State Government is called upon to deal with the area for the grant of mining lease under the existing provisions of the Mining Minerals (Concession) Rules, as already referred to above. Of the said rules. Rule 6 is very specific in this regard. It permits an application to be made for grant of lease, whenever an area is available. Consequently, the State Government is empowered to deal with an application for mining lease whenever an applicant comes and tells that there is an area available for mining lease. This being the position, the sovereign rights of the State come into play and for the first term of lease of three years as Is generally permissible to grant concerning sand lease, the discoverer, if he is found to be the discoverer really, can be saddled with the rights of said lease or for the lesser term which the State Government may deem necessary on the facts and circumstances.
21. Rule 6 of the U. P. Minor Minerals (Concession) Rules, 1963 may be useful which is being quoted below:
'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 of one thousand rupees ;
(b) a deposit of two thousand rupees for meeting the preliminary expenses, other than those specified in Rule 17 ;
(c) four copies of the cadastral survey map on which the area applied for is clearly marked and in case such area is not covered by cadastral survey, four copies of topographical survey map on a scale of atleast 4' = 1 mite, 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 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 State ; and
(e) a certificate of caste and residence of the applicant where the application is for mining Jease of sand or morrum or bajart or boulder or any of these in mixed state.
(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 notice, require the applicant to complete the application in all respects or, to deposit the fee or furnish the documents within such time as may be specified in the notice, and for the purpose of Rule 9 or Rule 9A, the date on which the application is completed in all respect, shall be deemed to be the date of receipt of application.'
22. It was contended by the learned counsel for the petitioners that it is too much to permit a mining area to be declared as new discovery because sand is always notable by all and sundry, and this will give arbitrary powers to mining officers if such choice is left to them to pick up a man of their liking and choice. Therefore, even such an area should be made available subject to the provisions of notice as envisaged by Rule 72.
23. The physical noticing of an area which may contain sand or the like, is not the only thing which requires at the time of deciding an application of an applicant as a new comer or discoverer of the area unless it is the decision of the State Government to grant a lease of that area which was never on lease as mining area. That is the basis on which the discoverer has to be decided. Assuming that a large track of sand area may be lying, a part only of which is subject-matter of mining lease by a notification of the State Government. If in a given contingency, the State Government wants to make an increase in the mining area, the additional part thereof must be taken to be a new mining area. Likewise, if the new mining area is covered by cultivation of watermelon, etc. and subsequently comes out to be termed as mining area by the State Government for grant of lease, the person applying thereof can and should be taken as the discoverer claiming that the right be saddled with him.
24. In this connection. It was pointed out by Shri Vijendra Singh that since there is no provision in the Central Act permitting any grant of lease contrary to the provisions of the Act and the Rules, there being no rule for such new area being added, the grant of lease to alleged discoverer will be against the provisions of the Central Act and the State Rules. Shri Dinesh Dwivedi in one of the matters argued that the provisions contained in the Act and the Rules will not permit such an action on the part of the State Government or the mining officers under it. Rule 24 of the Rules framed under the Central Act enacts the provisions relating to the application for grant of mining lease. The said rule is quoted here for ready reference.
'24. Disposal of application for mining lease.--(1) An application for grant of a mining lease shall be disposed of within two years from the date of its receipt.
(2) (* * *) (3) If any application Is not disposed of within the period specified in sub-rule (1), It shall be deemed to have been refused.
(4) Where an application for a mining lease for a mineral or minerals not specified in the existing mining lease or mining leases is made for the whole or part of the area held under mining lease by a person otherthan the lessee, the State Government shall notify this fact by Registered post/acknowledgement due to the person who already holds mining leases for another mineral in the land applied for.
(5) (a) If on the receipt of information referred to in sub-rule (4), from the State Government, the lessee applies either for prospecting licence or mining lease for newly discovered mineral or minerals within six months from the date of communication of the information by the State Government, the lessee shall be preferred in respect of such grant.
(b) If the lessee falls to apply for prospecting licence or mining lease within six months, then this fact will be intimated to the applicant by the State Government and the State Government will consider the original application in accordance with the rules.
(6) The period of two years referred to in sub-rule (1) in respect of applications received under sub-rule (4) shall be counted from the date of communication to the applicant of the information regarding the failure of the lessee to apply for prospecting licence or mining lease within the period of six months mentioned in sub-rule (5).'
Having quoted the aforesaid rule, it may only be mentioned that under Rule 24A, renewal of mining lease is dealt, which may support the theory that the State Government will be within the power to deal with the application in accordance with the provisions contained in Rule 24 thereof.
25. It may be mentioned here, Shri Dwivedi wanted to argue that principles underlying the sub-rules (4) and (5) of the aforesaid Rule 24, framed under the Central Act, will not be applicable for dealing with an application for mining minerals for which the State Government is empowered to.
26. The argument, as it is, is correct. However, the principle on which reliance by the learned counsel for the respondents underlying Rule 24 has not been clearly taken a note of when the learned counsel for the petitioner advanced the said argument. The Central Act makes a provision for a new discoverer. An applicant who makes certain survey or takes recourse to the antecedents in sub-rule (4) of Rule 24, may be preferred under sub-rule (5) of Rule 24. It is not that the provisions are bodily lifted and are applied to the mineral concession area coming to the notice of the State Government for the first time but it is the principle underlying the said sub-rules (4) and (5) which has been made the basis apparently by the State Government in settling such lease matters, which appears to be lawful basis.
27. There is no doubt in the mind of this Court that the State Government officials do not have more power than to grant a lease for about two or three years and, thereafter, the said area does come for notification after first term is over because then it automatically drifts the area which has to be entered in register maintained under Rule 20 or 25 as the case may be.
28. In view of the aforesaid detailed discussions on the facts stated in these cases and the reasons found by the District Magistrate or the mining officer, as the case may be, a valid basis has been noted while settling the rights in the newly found area with the persons chosen and found by them as the discoverer of the area. Therefore, no illegality can be found out in the order.
29. In view of what has been stated above, the Writ Petition Nos. 14329 of 1990 and 27945 of 1997, Jagmohan Dutt Sharma v. State of U. P. and others are dismissed.
30. The Writ Petition No. 23762 of 1997 filed by Satyavrat. Writ Petition No. 23808 of 1997 filed by Raja Ram and the Writ Petition No. 23832 of 1997 filed by Dharmveer are also dismissed.