Allahabad High Court
Amar Singh vs State Of U.P. And 4 Ors. on 9 September, 2016
Author: Dilip B Bhosale
Bench: Dilip B. Bhosale, Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Case:- PUBLIC INTEREST LITIGATION (PIL) No. 22482 of 2016 Petitioner:- Amar Singh Respondents:- State of U.P. & 4 Ors.
Counsel for petitioner:- Mr. M.D. Singh "Shekhar", Senior Advocate, assisted by Mr. Sunil Pratap Singh; Mr. M.C. Chaturvedi, Senior Advocate, assisted by Mr. Abhishek Srivastava; Mr. D.P. Singh, Mr. Vijay Kumar Dwivedi, Mr. Dev Brat Mukherjee, Syed Rafat Ali.
Counsel for Respondents:- Mr. Raju Ramachandran, Senior Advocate, Mr. Vijay Bahadur Singh, Advocate General, assisted by Mr. Alok Singh, Standing Counsel, Mr. U.P. Singh, Standing Counsel.
Mr. Amit Mishra, learned counsel for CBI.
Hon'ble Dilip B. Bhosale, Chief Justice Hon'ble Yashwant Varma, J Order on C.M. Stay Vacation Application No. 249798 of 2016 This civil miscellaneous stay vacation application has been filed by the respondents, seeking vacation of the interim order dated 28.07.2016 passed by this Court and for dismissal of Public Interest Litigation (PIL) No. 22482 of 2016.
The relevant portion of the order dated 28.07.2016 reads thus:
"The affidavit in question that has been so filed in pith and substance also clearly reflects that there is no intention of the State Government to introduce the technological intervention for curbing the illegal mining in question, such stand taken by the Principal Secretary, Geology and Mines, Civil Secretariat, Government of U.P., at Lucknow, cannot be appreciated by us. In our considered opinion the State Government should come with a scheme wherein technological intervention is to be introduced so that illegal mining can be kept on hold by technology intervention. We accordingly direct the State of U.P. to forthwith frame scheme for introducing technology intervention and inform this Court of the steps taken in the said direction.
Coupled with the present case, we see that in bunch of writ petitions that virtually covers entire State of U.P. for all practical purpose wherein mining activity is being carried out and once we find from the record in question that virtually in each district complaint of illegal mining being carried out is there and therein it has been contended that the State Authorities are soft on the spot and with their active connivance such activity is on.
Consequently, in the facts of the case, we deem it proper that an independent agency should submit report before this Court as to whether once there is a precise order of this Court in PIL No.28914 of 2016; 28905 of 2016, 28912 of 2016, 28906 of 2016, 28915 of 2016, 28904 of 2016 and in PIL No.28916 of 2016 the order passed is as follows:-
"For the above noted reasons and having regard to the material which has been brought on record before us, we issue following directions in all the connected writ petitions in hand:-
(I) No person shall be permitted to excavate the minor minerals on the basis of the lease deeds or permission granted subsequent to 31st May, 2012 by whatever name it may be called, i.e.
(a) renewal of the expired lease
(b) granting fresh lease
(c) right to excavate for the obstructed period
(d) extension of the term of the lease (II) It shall be the responsibility of the Collector, Senior Superintendent of Police and the District Mining Officer of all the above noted Districts to ensure that no illegal mining is permitted to be carried out within their territorial limits of jurisdiction.
(III) No Form MM-11 shall be issued in favour of any person possessed of any expired lease or an order granted subsequent to 31st May, 2012 in his favour for excavation of minor and minerals, i.e. in the name of renewal of the lease or extension of the term of the expired lease or permission for the obstructed period on the plea that a valid lease was granted but excavation could not be carried out for some days by the lease holder during the subsistence period of lease on account of the orders of this Court or of the Competent Authorities.
(IV) The Collector of the respective Districts shall file their personal affidavits giving specific reply with reference to the photographs enclosed in support of the allegation of the illegal mining as well as to the averments made in respect thereof in all the writ petitions.
We may record that in case it is found that any illegal mining activity is being permitted/carried on in collusion with the District Authorities, this Court will not hesitate to recommend action against the officers found responsible for the same."
In spite of said order, even then illegal mining activity is being carried out though there is restrain order passed by this Court then in our considered opinion, in case, in spite of the order passed by this Court, illegal mining is being carried out then certainly action is required and intervention of this Court is also certainly required as natural resources cannot be permitted to be loosely looted.
Consequently, we proceed to pass an order asking the Central Bureau of Investigation, New Delhi to submit report as to whether in the State of U.P, illegal mining is being carried out with the collusion of State Authorities or not and the report in question be submitted before this Court after six weeks'."
(Emphasis supplied) The respondent - State has filed the instant application against an interim direction to the Central Bureau of Investigation, New Delhi (for short 'CBI') to submit its report as to whether in the State of Uttar Pradesh, illegal mining is being carried out with the collusion of State authorities, within a period of six weeks before this Court. In the stay vacation application, the respondents have stated that no case, whatsoever, is made out for asking CBI to investigate into the allegations of illegal mining in the State of Uttar Pradesh with the collusion of State authorities.
Before we proceed further, we may observe, as submitted by learned counsel for CBI, that the CBI has already started investigation as per the directions issued by this Court and they are already half way through.
It has come on record and it is not in dispute, that there are several writ petitions filed and pending before this Court, alleging illegal mining almost all over the State of Uttar Pradesh and in most of the petitions, mining activity has been stayed. We have, by our order dated 17.08.2016, with the consent of learned counsel for the parties, clubbed all such petitions and they are all before the Court along with Public Interest Litigation (PIL) No. 22482 of 2016, in which the instant stay vacation application has been filed.
Having regard to the order, reproduced in the order dated 28.07.2016, passed in PIL Nos. 28916 of 2016 and other connected matters such as in PIL Nos. 28905 of 2016, 28912 of 2016, 28906 of 2016, 28915 of 2016, 28904 of 2016 and 28916 of 2016, we have perused the judgement of this Court (comprising Ashok Bhushan and Abhinava Upadhya, JJ.) in Nar Narain Mishra Vs. State of U.P. & Ors.1. While disposing of a bunch of writ petitions vide order dated 29.01.2013, the Division Bench considered the challenge to the Government Orders dated 31.05.2012 and 26.07.2012 and consequential tender notice issued by the District Officer inviting applications for grant of mining leases by way of e-tendering under Chapter IV of Uttar Pradesh Minor Minerals (Concession) Rules, 1963 (for short 'Rules, 1963')2. After categorizing the writ petitions in three parts, the Division Bench formulated eleven questions for consideration, as reproduced in paragraph 35 of the judgement, and after dealing with the questions in depth, in the light of several judgements of the Supreme Court and the High Courts, issued the following directions in paragraph 92:-
"(1) The prayers made by the petitioners/applicants for considering their applications for renewal of their mining leases which were pending on 31/5/2012, and the applications for grant of fresh leases which were pending on 31/5/2012 are refused.
2) The Government Order dated 26/7/2012 and all consequent steps taken thereunder are quashed.
3) Notices issued by the District Magistrate inviting applications by E-tendering consequent to the Government Order dated 31/5/2012, cannot be allowed to be finalized and are quashed with liberty to the respondents to issue fresh notices in accordance with law."
In this backdrop, PIL No. 22482 of 2016 has been filed to stop illegal mining which is going on, in defiance of and contrary to the orders of this Court, alleging that every day, more than one thousand trucks illegally transport sand to several parts of the State. The petitioner has also given details of several PILs and interim orders passed therein, so as to demonstrate how illegal mining is systematically going on in the State of Uttar Pradesh, contrary to and in defiance of the orders of this Court, including the judgement in Nar Narain Mishra.
The State Government issued a Government Order dated 31.05.2012, whereby the entire mining area of the State of U.P. was brought under Chapter IV of the Rules, 1963 with a direction that mining leases after 31.05.2012, would be settled through e-tendering. The validity of the Government Order dated 31.05.2012 was considered in Nar Narain Mishra. While upholding the challenge, the Division Bench directed that the applications seeking extension of leases and/or renewal thereof pending prior to 31.05.2012 would be treated as rejected. Thereafter, the Government Order dated 31.05.2012 was also considered in several other petitions, including in Sukhan Singh Vs. State of U.P. & Ors3. The judgements in Nar Narain Mishra and Sukhan Singh were affirmed by the Supreme Court, holding that extension or renewal of mining leases after 31.05.2012 under Chapter II of the Rules, 1963 is illegal. It is also stated in the petition that despite aforementioned orders of this Court and the Supreme Court, the State authorities, not only granted but also renewed mining leases after the Government Order dated 31.05.2012. These grants and renewals were all based upon applications which were stated to be pending as on 31.05.2012. The petitioner has placed details/list of leases granted after 31.05.2012 on the basis of the application made on or before this date. This disclosure, it becomes relevant to note, was brought on record of PIL No. 6968 of 2016 [Sudhir Kumar Vs. State of U.P.] by way of an affidavit of the Principal Secretary Geology and Mines Government of U.P. pursuant to directions issued by the Court on 17.02.2016. It has also come on record that all such mining leases, granted or renewed on the basis of the applications pending before 31.05.2012, have been stayed by this Court in several writ petitions, including the writ petitions clubbed with the instant PIL. The petitioner has also stated that illegal mining of sand has not stopped and it is continuously going on in several parts of the State. At this stage, we may observe that in the instant PIL, the focus of the petitioner is on illegal mining in district - Kaushambi. But, having regard to the nature of the allegations, and that several writ petitions making similar allegations, are filed and pending, in the order dated 28.07.2016, it is observed that these petitions cover the entire State of Uttar Pradesh for all practical purposes, wherein mining activity is going on in full swing, and that the State authorities are soft on the spot, and with their active connivance, such activities are continuously going on. In this backdrop, the order dated 28.07.2016 has been passed, asking CBI to investigate and submit its report within six weeks from the date of the order.
In Sukhan Singh, this Court observed that no person has a vested right to the grant or renewal of a mining lease or to have an application considered or disposed of in a particular manner. An application for the grant of a lease has to be dealt with in accordance with the rules prevailing on the date of disposal of the application. Further observation is more relevant for our purpose, which reads that mere pendency of an application on 31.05.2012, either for the grant of a fresh lease or for the renewal of an existing lease, did not confer a vested right either to the grant of or, for that matter, the renewal of the lease. Thus, it is clear that once the government issued a declaration under Rule 23 of the Rules, 1963 by its notification dated 31.05.2012, the procedure for the grant of mining leases, both fresh as well as renewals, had to necessarily abide by Chapter IV of the Rules, 1963.
It has also come on record that the government issued a Government Order dated 26.02.2013, referring to the decision of this Court in Nar Narain Mishra and clarified that all applications for the grant of mining leases or for renewals, which were pending as on 31.05.2012, should be treated as rejected, since the provisions of Chapter IV of the Rules, 1963 came into force. In Sukhan Singh, a reference to another Government Order dated 26.02.2013 was made, which states that those applications, in respect of which approval has been granted by the competent authority prior to 05.09.2012 would, for the purposes of renewal, be treated as valid. The Division Bench, while commenting on this Government Order, observed that it does not and cannot detract from the plain legal position, as it emerges, that once a notification has been issued under Rule 23 of the Rules, 1963 making the provision of Chapter IV of the Rules, 1963 applicable, no pending applications referable to Chapter II were liable to be entertained or granted. Once a declaration has been issued in terms of Rule 23 (1) of the Rules, 1963, the Court ruled, the provisions of Chapter IV of the Rules must necessarily apply both to fresh applications for the grant of a mining lease as well as to applications for renewal, including all applications which were pending on the date of issuance of the Government Order. Thus, the Division Bench, while allowing the petition, held that the grant of leases to the contesting respondent therein as well as renewal was contrary to law and invalid and, accordingly, set aside the orders issued by the concerned authority.
This High Court in Udaypal Singh Vs. State of U.P. & Ors.,4 while dealing with a similar challenge in a PIL, observed that there can be no dispute that the grant of a mining lease is distinct from the execution of a lease deed for it is only after the grant, that a lease dead can be executed. It was further observed that under the Government Order dated 31.05.2012, no mining lease can be granted or renewed after that date. After so observing, the lease deeds under challenge were set aside.
The Supreme Court in Sulekhan Singh & Co. & Ors. Vs. State of U.P. & Ors.,5 considered the question whether the High Court was justified in quashing the mining leases granted in favour of the appellants vide orders dated 24.05.2014 and 26.05.2014, on the ground that the said leases were granted in violation of the Government Order dated 31.05.2012. The Supreme Court, after considering several judgements, including its judgement in Deepak Kumar Vs. State of Haryana,6, and so also the judgement of this Court in Nar Narain Mishra, dismissed the appeals. While doing so, the Supreme Court did not approve the stand of the State of U.P. in supporting the appellants. The Supreme Court also observed that the submission that the applicants had acquired a vested right prior to the Government Order dated 31.05.2012, cannot be accepted. Order dated 31.05.2012 was issued by the State of U.P. to bring about transparency and to safeguard the government revenue and was consistent with the decisions of the Supreme Court on Article 14 of the Constitution. A detailed interim order passed by the Court in Rafiq Ahmad was upheld by the Supreme Court in Ramakant Dwivedi Vs. Rafiq Ahmad7 reaffirming the principles enunciated in Nar Narain Misra and Sukhan Singh.
This Court in Jitendra Kumar Vs. State of U.P. & Ors.,8 after referring to Nar Narain Mishra and Sukhan Singh, directed that no excavation of minor minerals shall be carried out in pursuance of the lease which had been granted to the contesting respondent on 17.10.2013. Similarly, in Vijai Kumar Dwivedi Vs. State of U.P. & Ors.,9 this Court, while dealing with seven PILs challenging the grant of lease for excavation of minor minerals subsequent to 31.05.2012, either in the shape of extension of the term of the expired lease, its renewal or by grant of permission to continue with mining for the obstructed period, observed as reproduced in the impugned order dated 28.07.2016.
The respondents seek vacation of the direction asking CBI to investigate and submit its report, mainly contending that apart from the fact that no such investigation is necessary, in any case, such order was premature. In the stay vacation application, they have also tried to demonstrate, that the order appointing CBI was not necessary and that the Government is taking steps to curb the menace of illegal mining.
In this backdrop, we have heard learned counsel for the parties and with their assistance gone through the materials placed on record.
Mr. Raju Ramachandran, learned Senior Counsel for the State of U.P., submitted that the order asking CBI to investigate, is not only prejudicial to the interest of the State but it is also contrary to the judgements of the Supreme Court. He submitted that a direction for investigation can be given only if an offense is, prima facie, found to have been committed or when a person's involvement is, prima facie, established. The direction to CBI to investigate, whether any person has committed an offense, cannot be given and, since such a direction is given by way of an interim order without allowing the respondents to file their counter affidavit, the same is illegal and deserves to be vacated or kept in abeyance till disposal of the main writ petition. In short, it was submitted that the impugned direction is in complete negation of various decisions of the Supreme Court. It was further submitted that the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, cannot issue a direction to CBI to investigate within the territory of a State without the consent of that State. It may be true that the High Court has the power under Article 226 to direct an enquiry/investigation by CBI, but such power can be exercised only in cases where there is sufficient material to establish, prima facie, that there is a need for such investigation. He further submitted that it is not sufficient to have such material in the pleadings but it is necessary for the Court to come to a conclusion that the material before it, is sufficient to direct such an investigation. In the present case, it was vehemently submitted that no such material is either pleaded or placed before the Court and, hence, the order impugned is not only premature but it is wrong and illegal and, therefore, deserves to be vacated. In support of these contentions, learned Senior Counsel for the respondents placed reliance upon the judgements of the Supreme Court in Common Cause, A Registered Society Vs. Union of India & Ors.10; State of West Bengal & Ors. Vs Committee for Protection of Democratic Rights, West Bengal & Ors.11; and Secretary, Minor Irrigation & Rural Engineering Services, U.P. & Ors. Vs. Sahngoo Ram Arya & Anr.12 Sri Ramachandran elaborating upon his submissions with regard to the contours of the jurisdiction of this Court to refer the matter to the CBI for investigation laid stress upon the following principles as enunciated by the Supreme Court in Common Cause:-
"174. The other direction, namely, the direction to CBI to investigate "any other offence" is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person's involvement is prima facie established, but a direction to CBI to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of "LIFE" and "LIBERTY" guaranteed to a person under Article 21 of the Constitution. This direction is in complete negation of various decisions of this Court in which the concept of "LIFE" has been explained in a manner which has infused "LIFE" into the letters of Article 21."
He then stressed upon the following principles as enunciated by the Supreme Court in Committee for Protection of Democratic Rights:-
"69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations."
Sri Ramachandran then drew our attention to the following observations of the Supreme Court in Secretary, Minor Irrigation & Rural Engineering Services:-
"5. While none can dispute the power of the High Court under Article 226 to direct an inquiry by CBI, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such inquiry. It is not sufficient to have such material in the pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an inquiry by CBI. This is a requirement which is clearly deducible from the judgment of this Court in the case of Common Cause. This Court in the said judgment at paragraph 174 of the Report has held thus: (SCC p. 750, para 174) "174. The other direction, namely, the direction to CBI to investigate 'any other offence' is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person's involvement is prima facie established, but a direction to CBI to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of 'LIFE' and 'LIBERTY' guaranteed to a person under Article 226 of the Constitution. This direction is in complete negation of various decisions of this Court in which the concept of 'LIFE' has been explained in a manner which has infused 'LIFE' into the letters of Article 21."
6. It is seen from the above decision of this Court that the right to life under Article 21 includes the right of a person to live without being hounded by the police or CBI to find out whether he has committed any offence or is living as a law-abiding citizen. Therefore, it is clear that a decision to direct an inquiry by CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. In the instant case, we see that the High Court without coming to a definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of "ifs" and "buts" and thought it appropriate that the inquiry should be made by CBI. With respect, we think that this is not what is required by the law as laid down by this Court in the case of Common Cause."
The learned Advocate General who also appeared for the State while adopting the submissions advanced by Sri Ramachandran, further submitted that the material before the Court clearly did not warrant the issuance of a direction commanding the CBI to investigate in the matter. It was his submission that no mala fides could be attributed to the State or its authorities in the facts and circumstances of the case. He submitted that the legal position with regard to pending applications as also applications seeking extension of leases for the obstructed period was in a state of flux. In the prevailing state of uncertainty, the State bona fide proceeded to grant, renew and extend leases. This position, in his submission, attained a quietus only on 4 January 2016 with the Supreme Court in Sulekhan Singh clarifying the legal position and upholding what was held in Nar Narain Misra and Sukhan Singh. He referred to the Government Order dated 21 January 2016 issued thereafter to contend that the State took all steps as mandated to ensure that illegal mining was brought to a halt. He then referred to various materials brought on record by way of a counter affidavit to submit that the same would establish that regular surprise inspections were undertaken throughout the State to curb the menace of illegal mining, directions were issued for the constitution of monitoring committees at the District level, complaints registered and compounding fee recovered. All this in his submission evidenced the resolve of the State to curb illegal mining thus obviating the need for an investigation by the CBI.
The legal position insofar as the impact of the Government Order dated 31 May 2012 is concerned is clearly settled. In Nar Narain Misra, this Court in unequivocal terms declared the law to be that once the declaration came to be issued under Chapter IV all pending applications referable to either Part II or Part IV stood shelved. The Government Order ushered in a completely new regimen for the disposal of applications for grant of mining leases by way of e-tendering. This paradigm change in the statutory scheme and its impact upon pending applications was categorically declared to result in the rejection of all pending applications for grant, renewal or extension. The Court in no uncertain terms held that no applicant could claim a vested right to have his application considered or disposed of in accordance with a procedure which held and governed the field prior to 31 May 2012. It was held that on and after 31 May 2012 grant of mining leases would have to be made by way of e-tendering and in accordance with the provisions of Chapter IV of the 1963 Rules.
Significantly it becomes relevant to note that while arriving at this conclusion, the Court accepted the submissions advanced by none other than the learned Advocate General who appeared for the State. The Court noted the submission thus:-
"Use of word "in any case" in Rule 68 of the Rules, 1963 is not the power to be exercised in an individual case alone, but can be exercised generally also. Replying the submissions of the learned counsel for the petitioners who are claiming renewal of their mining leases it is submitted by Shri S.P. Gupta that the Government Order dated 31/5/2012, has taken away the right of renewal since after the area having been declared under Rule 23 Chapter II of the Rules, 1963 is no more applicable. Once the area has been declared as falling under Chapter IV, it can no more be settled under Chapter II of the Rules, 1963 and the right of renewal if any, is lost. The eclipse of the right of renewal is sanctioned by statutory provisions itself and in fact comes into play the moment the declaration under Rule 23 is made. The right of renewal is not an inviolable right, it is always subject to change in Government policy. An application for renewal pending is liable to be considered in accordance with the statutory provisions applicable on the date of their consideration and mere moving an application for renewal neither confers nor creates any valuable right in favour of the applicant."
From the above extract it is apparent that the stand of the State itself was that all pending applications would have to be treated as disposed of and a completely new and fresh procedure adopted. The State contended and urged that existing applicants had no right to have their applications processed or disposed of in accordance with rules which prevailed prior to 31 May 2012. It was this very contention which was upheld by the Court in Nar Narain Misra. In this backdrop, we find ourselves unable to either appreciate or accept the submission of the learned Advocate General that a state of uncertainty or flux prevailed. Insofar as the State was concerned, it had successfully argued that post 31 May 2012 no pending application was liable to be considered or granted in accordance with the procedure prevailing prior to 31 May 2012. Clearly, therefore, it cannot now contend that it was unclear of the legal position. This becomes further evident in light of its first Government Order dated 26 February 2013 when it issued instructions to all authorities to abide by the judgment and the directions issued therein. Clause 5 of the said Government Order, which reads thus, further dispels the submission of a state of uncertainty-
" मा. उच्च न्यायालय, इलाहाबाद ने अपने निर्णय दिनांक २९.०१.२०१३ में यह अवधारित किया है दिनांक ३१.०५.२०१२ तक खनन पट्टे अथवा उनके नवीनीकरण हेतु अनुलम्बित प्राथर्ना पत्र वाले सभी क्षेत्र रिक्त समझे जायेंगे तथा वे शासनादेश दिनांक ३१.०५.२०१२ द्वारा की गयी सामान्य घोषणा से आच्छादित होने के कारण ऐसे क्षेत्र नियमावली, १९६३ के अध्याय-४ के प्राविधानों के अन्तर्गत स्वीकृत होंगे. अतएव ऐसे सभी लंबित प्राथर्ना पत्र अस्वीकृत समझे जाए."
What then followed is of course a separate issue. The subsequent Government Order dated 26 February 2013 was in our considered opinion a clear overreach or at least an attempt at obfuscation. It is in fact from hereon that the action of the State comes under cloud and the motives become oblique. The subsequent steps taken by the State Government must necessarily be viewed bearing always in mind that its contention before the Court in Nar Narain Misra was that pending applications would stand rejected and a fresh procedure liable to be adopted post 31 May 2012. Despite this stated stand taken before the Court, the State Government issued the second Government Order dated 26 February 2013 containing the following directions:-
"उपर्युक्त विषयक शासनादेश संख्या -2371/86-12-278/2011, दिनांक 05 सितंबर , 2012 के अनुक्रम में मुझे यह कहने का निर्देश हुआ है क़ि ऐसे खनन पट्टे, जिनको नवीनीकृत किये जाने हेतु सहमति दिनांक 05 सितम्बर 2012 के पूर्व सक्षम अधिकारी द्वारा दी गयी है, वे अपनी पूर्ण अवधि तक प्रभावी रहेंगे परंतु ऐसे खनन पट्टों के नवीनीकृत पट्टा विलेख का निष्पादन पर्यावरण स्वच्छता पत्र के प्राप्त होने के पश्चात् ही किया जाएगा."
These directions ex facie fly in the face of the submissions advanced before and accepted by the Court in Nar Narain Misra. The submission of the learned Advocate General that the State had misunderstood or had failed to appreciate the import of the law as declared in Nar Narain Misra is not liable to be sustained for other reasons which we record hereafter.
As would be evident from the operative directions extracted hereinabove, the Court in Nar Narain Misra in unequivocal terms declined the prayer of the petitioners for consideration of their applications for renewal or grant of mining leases which were pending prior to 31 May 2012. These directions in clear and unambiguous terms clearly represent and embody the law declared by the Court to be that all pending applications would stand refused upon the promulgation of the Government Order dated 31 May 2012. We then note that on 12 September 2014, a Division Bench of this Court in Sukhan Singh again clarified the position in the following terms:-
"Finally, and for the sake of completeness, we would also refer to a Government Order dated 26 February 2013 which refers to the decision of this Court in Nar Narain Mishra (supra) and clarifies that all applications for the grant of mining leases or for renewals which were pending as on 31 May 2012 should be treated as rejected since the provisions of Chapter IV of the Rules came into force. The attention of the Court has been drawn to another Government Order dated 26 February 2013 which states that those applications in respect of which approval has been granted by the competent authority prior to 5 September 2012 would for the purposes of renewal be treated as valid. In our view, the subsequent clarification of the State Government on 26 February 2013 does not and cannot detract from the plain legal position as it emerges once a notification has been issued under Rule 23 of the Rules making the provisions of Chapter IV of the Rules applicable. Once a declaration has been issued in terms of Rule 23(1) of the Rules, the provisions of Chapter IV of the Rules must necessarily apply both to fresh applications for the grant of a mining lease as well as to applications for renewal, including all applications which were pending on the date of issuance of the Government Order."
This, in our opinion, was sufficient to dispel any confusion, even assuming that the same existed. Insofar as the issue of grant of extension or what is described as a lease for the obstructed period is concerned, this was also negatived by an authoritative pronouncement of a Division Bench of the Court in Mohammad Yunus Hasan13. The very judgments that are pressed into aid on behalf of the State for grant of extension for the obstructed period were noticed, distinguished and held that no such extension of the term of the lease could be granted. This is evident from the following observations of the Division Bench in Mohammad Yunus Hasan:-
"We are also of the opinion that the judgments of the Apex court in the case of Beg Raj Singh Vs. State of U.P and others (supra) and J.P. Yadav Vs. Kanhaiya Singh and others (supra) as also the Division Bench Judgment in the case of Rajendra Singh Vs. State of U.P. and others (supra) relied upon by the counsel for the petitioner are clearly distinguishable in the facts of the present case as also in view of the change in law regarding grant of mining leases subsequent to the judgment of Apex Court in the case of Deepak Kumar and other Vs. State of Haryana and others (supra)."
The above narration of facts and the repeated directions of this Court clearly establish that there was no uncertainty in the legal position. This Court despite having authoritatively pronounced and ruled upon the issue, however, was deluged with writ petitions alleging the continuance of mining operations as well as grants, renewals and extensions of leases being effected by the State Government and its officials.
This then takes us to the submission advanced on behalf of the State to the effect that there did not exist even prima facie material to warrant the transfer of the investigation to the CBI. As was submitted by Mr. Ramachandran, a direction to the CBI to investigate must be preceded by the Court coming to a conclusion, prima facie, that an offense had been committed. It was his submission that the direction issued by the Division Bench on 28 July 2016 recorded no such conclusion and therefore, the direction so issued was liable to be vacated. We are unable to accept the said submission for the following reasons.
The writ petition before the Division Bench itself carried allegations that despite the various interim orders and binding final judgments rendered by this Court, illegal mining was continuing throughout the State of U.P. To buttress the said assertion, the writ petition referred to various receipts issued by the concerned Zila Panchayats as well as photographs which showed large scale mining activity being undertaken as late as in April, 2016. Receipts issued by the Zila Panchayat, we may note, were in respect of the collections effected by it from vehicles carrying minor minerals in terms of bye laws framed. The issuance of these receipts evidenced collection of fees by the Zila Panchayat from vehicles carrying minor minerals during a period when the State respondent contended and asserted that all illegal mining had been brought to a stop. The Division Bench while passing the directions on 28 July 2016 noted that these allegations stood contained not just in the instant writ petition but also in connected matters. The complicity of the State respondents which is evident from this and other material fade into the background when one views the disclosures made by the Principle Secretary, Geology in Sudhir Kumar the extracts of which stood appended to the present writ petition as Annexure-2. It become relevant to note that pursuant to the interim directions issued by the Court on 17 February 2016 in the PIL referred to above, the Principal Secretary was called upon to disclose on affidavit the details of all leases granted by the State Government after 31 May 2012. The disclosures made by the Principal Secretary in the form of a chart shocks the conscience of this Court. An examination of the disclosure made establishes that post 31 May 2012, the State Government granted 149 leases in 23 districts throughout the State. 82 approvals for execution of lease deeds were issued by the State Government after the decision in Nar Narain Misra. Of the total 149 leases granted by the State, 67 leases were executed after the promulgation of its own Government Order dated 26 February 2013 ostensibly directing implementation of the directions issued by this Court. In the district of Hamirpur 48 of the total 54 leases were granted and executed after 26 February 2013. Similarly in District Kaushambi, 8 out of the total 11 leases were executed after 26 February 2013. The above facts and figures which are borne out from the disclosures made by the State Government itself clearly establishes that scant regard was paid to the judgments rendered by this Court, the directions issued from time to time and that the State followed a course of conduct which was in clear breach of the same. The orders issued for implementation of the directions issued by the Court in Nar Narain Misra were flouted openly by the State Government itself. We are pained to note that while the learned Advocate General contends that strict prohibitory orders were issued and decisions taken post 4 January 2016, 2 leases in Chitrakoot and 1 lease in Fatehpur were executed even after this date. The lack of conviction of the State Government to check illegal mining is further evidenced from the following assertions made by the Principal Secretary Geology and Mines in his personal affidavit filed in these proceedings. The assertions are in the following terms:-
"It is submitted that in the State of Uttar Pradesh, due to litigation, almost all areas of sand and morrum are being vacant and the persons, without having any authority, lift the mineral, without obtaining any transit pass, when they feel comfortable to do so. Hence, the system as introduced in the State of Orissa is not suitable in Uttar Pradesh, unless and until the areas are not settled in favour of the lessees."
One may then refer to the material based upon which the State Government seeks vacation of the order dated 28 July 2016 along with the affidavit filed in support of the application for vacation of the directions. The State Government in Annexure CA-4 has filed charts seeking to disclose the number of references received by it in respect of illegal mining in the years 2013-14, 2014-15 and 2015-16. These are set forth herein below in a form of a chart:-
YEAR TOTAL REFERENCES COMPOUNDED 2012-13 9871 9703 2013-14 8718 8518 2014-15 10024 9398 2015-16 11575 10868 As would be evident from the table appearing above in majority of the cases the offenses were compounded. Whether the illegally mined mineral was confiscated is not disclosed. In fact a Division Bench of this Court in Rajendra Singh Vs. State of U.P.14 came down heavily on the acts of the District Magistrate in disposing of seized minerals without an order of the Court as contemplated under section 21 (4A) of the Mines and Minerals (Regulation and Development) Act, 1957.
The affidavit of compliance filed by the District Magistrate on 27 July 2016 brings on record various inspection reports. These are stated to be inspection reports of premises where minor minerals were stored. In one such report relating to the inspection of the premises of one Goverdhan Prasad in district Kaushambi, it is recorded that out of the stock found present, 9314 cubic meters of sand was new while 187.50 cubic meter of sand alone was of old character. A similar inspection report in respect of premises of one Lav Kush shows that out of the total quantity stored, 10,445/- cubic meters of sand was of new character and 8017 cubic meters of sand alone was old stock. More striking is the inspection report in respect of one Om Prakash wherein during the course of inspection, it was found that 15,240.50 cubic meters of sand was new while 1758.40 cubic meter of sand alone was of old stock. The separate inspection reports dated 26 July 2016 of the District Magistrate, Kaushambi only records that due to heavy monsoons, the banks of the river are submerged and that no illegal mining was found to be taking place. This obviously on account of the fact that the monsoon by this time had already set in and had flooded the river banks. The above facts, in the opinion of this Court, clearly demonstrate the existence of a larger design to pay only lip service to the injunctions and restraints issued by the Courts from time to time and seem to indicate and at least prima facie establish a complicity of officers at the highest echelons of the State Government to overreach the directions issued by this Court from time to time and to overcome verdicts which had come to attain finality inter partes.
Before parting we also note a submission advanced on behalf of the State to the effect that the prayer for investigation being handed over to CBI already stood rejected by this Court and therefore also the direction issued on 28.07.2016 is unsustainable. The learned Advocate General refers to the order passed by a Division Bench of the Court in PIL 13661 OF 216 [Manish Kumar Singh Vs. State of U.P.]. The Division Bench while disposing of the said public interest litigation observed thus:-
"We are not inclined to entertain a writ petition of this nature seeking reference to the CBI/IB/National Level Agency for an enquiry in regard to illegal mining and transportation in the entire State of Uttar Pradesh. The relief which has been sough and the material which has been brought on the record is diffuse. Moreover, we would refer to the fact that in a public interest litigation, PIL 6968 OF 2016 : Sudhir Kumar Vs. State of Uttar Pradesh & ors., this Court passed an order on 17 February 2016, directing the Principal Secretary in the Department of Geology and Mines of the State Government to file an affidavit setting out the number and details of the leases which have been entered into by the State Government after 31 May 2012 other than by the process of e-tendering. The State was directed to set out a complete chart containing all details, including the names of the lease holders, the land to which the lease pertains and the term of the leases.
The learned Standing Counsel states that the affidavit of the Principal Secretary has already been filed in the aforesaid case.
Since the Court is monitoring the grant of mining leases, specifically with regard to the allegation that the provisions of e-tendering have been breached, it is not necessary to entertain the present public interest litigation. However we leave it open to the petitioner to intervene in the aforesaid proceedings, so as to assist the Court, if he so desires." (emphasis supplied) As would be evident from the above order, the Court found that there was not sufficient material on record to justify the issuance of the directions as prayed for. It described the allegations and material referred to in the said petition to be diffuse. The Court further thought it fit not to entertain the said petition bearing in mind the fact that it was already monitoring the grant of leases in another public interest litigation and left it open to the petitioner to intervene therein. There was thus no outright rejection of the prayer for a CBI investigation nor does the said order, in our opinion, permanently shut out such a direction being issued in an appropriate case and where circumstances so warrant.
From the above narration of facts it is clear and apparent that mining leases were granted and renewed despite the binding judgments rendered by this Court. The action and steps taken by the State were directly contrary to its own stand that all applications pending as on 31 May 2012 shall stand rejected. Despite Nar Narain Misra attaining finality it continued to grant approvals for the execution of mining leases. The conflicting directions issued by it on 26 February 2013 were clearly aimed at overreaching a judicial verdict. While it issued directions to comply with Nar Narain Misra, it continued to grant and renew mining leases on the basis of pending applications. The 149 leases granted after 31 May 2012 clearly shows that the State failed to abide by its own policy. These leases, it appears, were approved at the level of the State Government. It shows that its own policy decision taken on 31 May 2012 was deliberately and wantonly disregarded. It granted as many as 82 leases after the decision of this Court in Nar Narain Misra. While on the one hand it issued a Government Order to implement the directions of the Court, the very same hand granted as many as 67 leases after 26 February 2013. All these facts are, prima facie, clearly indicative of large scale complicity of officials at all levels. The Principal Secretary in his own personal affidavit admits that persons continue to mine "when they feel comfortable to do so". The various directions issued by the State to curb illegal mining remained dead letter and were followed only in breach. While this Court was informed that illegal mining had been stopped, the receipts issued by the Zila Panchayats established a continued transportation of minerals throughout the State. The own reports of the State of inspections carried out show that mining operations were continuing on a large scale. These facts were highlighted not just in this petition but stood reiterated in the various other PIL's which were before the Division Bench. On this state of the record, we are of the view that an enquiry cannot be entrusted to a committee comprising of officials of the State Government. Since the complicity and connivance of its own officials across levels is prima facie evident, no independent or impartial enquiry can possibly be entrusted to it. It is for these reasons that the Court was constrained, and in our opinion rightly so, to entrust the enquiry to the CBI. We, therefore, hold that the directions issued by the Division Bench on 28.07.2016 were justified in the facts and circumstances of the case. The submissions advanced and the material brought on record by the State respondents would not justify a vacation of the said directions. C.M. Stay Vacation Application No. 249798 of 2016 shall consequently stand rejected.
We note that the Division Bench has called upon the State respondents to suggest new technological tools and interventions which may be employed to curb the menace of illegal mining in the State. For that and consideration of other issues which stand raised in this group of petitions, we post this batch of writ petitions for hearing after 4 weeks.
09.09.2016 AHA/LA (Dilip B Bhosale, CJ) (Yashwant Varma, J)