Allahabad High Court
Nar Narain Mishra vs The State Of U.P. And Others on 29 January, 2013
Equivalent citations: AIRONLINE 2013 ALL 28
Bench: Ashok Bhushan, Abhinava Upadhya
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 13.12.2012. Delivered on 29.1.2013 Case :- WRIT - C No. - 37725 of 2012 Petitioner :- Nar Narain Mishra Respondent :- The State Of U.P. And Others Petitioner Counsel :- Mukesh Prasad Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 32828 of 2012 Petitioner :- Shailendra Singh Respondent :- State Of U.P. And Others Petitioner Counsel :- Birendra Singh Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 56827 of 2012 Petitioner :- Mohar Singh Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Ashish Malhotra,Pushpila Bisht Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 41415 of 2012 Petitioner :- Sanjai Kumar Singh Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- R.D. Tiwari,M.D. Singh "Shekhar" Respondent Counsel :- C.S.C.,A.S.G.I.(2012/4091),Abusufiyan Azmi With Case :- WRIT - C No. - 47724 of 2012 Petitioner :- Gauri Shankar Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Dev Brat Mukherjee Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 33464 of 2012 Petitioner :- Ambika Nishad And Another Respondent :- State Of U.P. Thru Special Secy. And Another Petitioner Counsel :- Siddharth Verma,Santosh Kumar Mishra Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 32955 of 2012 Petitioner :- Ivrcl Thru. Project Manager Respondent :- State Of U.P. And Others Petitioner Counsel :- Madan Lal Srivastava Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 34548 of 2012 Petitioner :- Ivrcl Thru Its Project Manager (Mines) Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Madan Lal Srivastava Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 34499 of 2012 Petitioner :- Ivrcl Thru Its Project Manager (Mines) Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Madan Lal Srivastava Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 35036 of 2012 Petitioner :- Chandra Prakash Mall Respondent :- State Of U.P. Thru Special Secy. And Another Petitioner Counsel :- S.K. Dwivedi Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 33718 of 2012 Petitioner :- Satyendra Kumar Rai Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Madan Lal Srivastava Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 28352 of 2012 Petitioner :- Sarwan Kumar Yadav Respondent :- State Of U.P. And Others Petitioner Counsel :- Ashish Kumar Nagvanshi Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 26455 of 2012 Petitioner :- Durga Prasad Upadhyaya Respondent :- The State Of U.P. Thru Secy. And Another Petitioner Counsel :- Mukesh Prasad Respondent Counsel :- C.S.C.,A.K. Singh With Case :- WRIT - C No. - 26456 of 2012 Petitioner :- Jitendra Nishad Respondent :- The State Of U.P. Thru Secy. And Another Petitioner Counsel :- Mukesh Prasad Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 26458 of 2012 Petitioner :- Deepak Kumar Respondent :- The State Of U.P. Thru Secy. And Another Petitioner Counsel :- Mukesh Prasad Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 27356 of 2012 Petitioner :- Ram Nayan Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Ashish Malhotra Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 27357 of 2012 Petitioner :- Smt. Prabhawati Devi Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Ashish Malhotra Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 27358 of 2012 Petitioner :- Smt. Vindu Devi Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Ashish Malhotra Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 27433 of 2012 Petitioner :- Ram Nayan And Another Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Ashish Malhotra Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 28583 of 2012 Petitioner :- Gorakh Nand Yadav Respondent :- The State Of U.P. Thru Secy. And Another Petitioner Counsel :- Mukesh Prasad Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 28585 of 2012 Petitioner :- Gorakh Nand Yadav Respondent :- The State Of U.P. Thru Secy. And Another Petitioner Counsel :- Mukesh Prasad Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 28587 of 2012 Petitioner :- Gorakh Nand Yadav Respondent :- The State Of U.P. Thru Secy. And Another Petitioner Counsel :- Mukesh Prasad Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 28589 of 2012 Petitioner :- Ghisiyavan Respondent :- The State Of U.P. Thru Secy. And Another Petitioner Counsel :- Mukesh Prasad Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 28591 of 2012 Petitioner :- Rajesh Singh Respondent :- The State Of U.P. Thru Secy. And Another Petitioner Counsel :- Mukesh Prasad Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 28730 of 2012 Petitioner :- Anil Nishad Respondent :- The State Of U.P. Thru Secy. And Another Petitioner Counsel :- Mukesh Prasad Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 28732 of 2012 Petitioner :- Shankar Nishad Respondent :- The State Of U.P. Thru Secy. And Another Petitioner Counsel :- Mukesh Prasad Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 28870 of 2012 Petitioner :- Ram Narendra Yadav And Another Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Ashish Malhotra Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 28874 of 2012 Petitioner :- Dilip And Another Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Ashish Malhotra Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 28218 of 2012 Petitioner :- Ram Narendra Yadav Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Ashish Malhotra Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 31471 of 2012 Petitioner :- Arvind Kumar Tripathi Respondent :- State Of U.P. And Another Petitioner Counsel :- S.K. Dwivedi Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 28784 of 2012 Petitioner :- Ram Nayan Respondent :- State Of U.P. Thru Special Secy. And Another Petitioner Counsel :- S.K. Dwivedi Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 31468 of 2012 Petitioner :- Ram Nayan Respondent :- State Of U.P. And Another Petitioner Counsel :- S.K. Dwivedi Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 16206 of 2012 Petitioner :- Shyam Narain Nishad Respondent :- State Of U.P. Thru Special Secy. And Others Petitioner Counsel :- S.K. Dwivedi,S.R. Dwivedi Respondent Counsel :- C.S.C.,A.K. Singh With Case :- WRIT - C No. - 37212 of 2012 Petitioner :- Ved Prakash Yadav Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- J.H. Khan,Gulrez Khan Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 36120 of 2012 Petitioner :- Ravindra Pratap Singh Respondent :- State Of U.P. And Others Petitioner Counsel :- S.K. Shukla Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 38771 of 2012 Petitioner :- Kant Lal Respondent :- State Of U.P. And Others Petitioner Counsel :- Ashok Malviya Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 2921 of 2012 Petitioner :- Shailesh Pandey Respondent :- State Of U.P. Thru' Principal Secretary & Others Petitioner Counsel :- Paritosh Kumar Malviya Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 39509 of 2012 Petitioner :- Rishi Kumar Tiwari Respondent :- State Of U.P. And Others Petitioner Counsel :- Madan Lal Srivastava Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 37998 of 2012 Petitioner :- Ram Milan Dwivedi Respondent :- The State Of U.P. And Others Petitioner Counsel :- Mukesh Prasad Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 39816 of 2012 Petitioner :- Prem Chandra Tripathi Respondent :- State Of U.P. Thru Secy. And Another Petitioner Counsel :- Bhupendra Kumar Tripathi Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 40229 of 2012 Petitioner :- Geetesh Kr. Dwivedi Respondent :- State Of U.P. And Others Petitioner Counsel :- Ramesh Rai,Sudhir Kumar Chandraul Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 41067 of 2012 Petitioner :- Lakhvinder Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Deo Prakash Singh Respondent Counsel :- C.S.C.,A.S.G.I.(2012/4084),Vivek Kumar With Case :- WRIT - C No. - 41055 of 2012 Petitioner :- Rajendra Singh Sirohi Respondent :- The State Of U.P. And Others Petitioner Counsel :- V.K. Jaiswal Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 42887 of 2012 Petitioner :- Dipti Chauhan Respondent :- State Of U.P. Thru Special Secy. And Others Petitioner Counsel :- S.K. Dwivedi Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 43630 of 2012 Petitioner :- Santosh Kumar Tripathi Respondent :- The State Of U.P. And Others Petitioner Counsel :- Mukesh Prasad Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 41669 of 2012 Petitioner :- Pradeep Kumar Respondent :- State Of U.P. Thru Secy. And Another Petitioner Counsel :- Ramesh Upadhyaya Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 42103 of 2012 Petitioner :- Ram Sewak Respondent :- State Of U.P. And Others Petitioner Counsel :- S.K. Singh Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 44685 of 2012 Petitioner :- Vinod Kumar Respondent :- State Of U.P. Thru Special Secy. And Others Petitioner Counsel :- Santosh Kumar Pandey Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 46003 of 2012 Petitioner :- Manish Kumar Misra Respondent :- The State Of U.P. And Others Petitioner Counsel :- Mukesh Prasad Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 46005 of 2012 Petitioner :- Subedar Yadav Respondent :- The State Of U.P. And Others Petitioner Counsel :- Mukesh Prasad Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 46811 of 2012 Petitioner :- Sandeep Kumar Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Ashish Malhotra Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 46422 of 2012 Petitioner :- Ramakant Dwivedi Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Deo Prakash Singh,W.H. Khan Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 47359 of 2012 Petitioner :- Kallu Respondent :- State Of U.P. And Others Petitioner Counsel :- Deo Prakash Singh Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 47868 of 2012 Petitioner :- Ajay Kumar Singh Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Deo Prakash Singh Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 47867 of 2012 Petitioner :- Rameshwar Respondent :- State Of U.P. And Others Petitioner Counsel :- Mukesh Prasad,Rahul Srivastava Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 41472 of 2012 Petitioner :- Ramesh Nishad Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Dev Brat Mukherjee Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 48428 of 2012 Petitioner :- Ashwani Kumar Dwivedi Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Deo Prakash Singh,S.P. Singh Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 49594 of 2012 Petitioner :- Jagdish Singh Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Shailesh Tripathi Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 49392 of 2012 Petitioner :- Dharambir Singh Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Sunil Pratap Singh Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 47008 of 2012 Petitioner :- Ravindra Pratap Singh Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- S.K. Shukla Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 50143 of 2012 Petitioner :- Phool Badan Nishad Respondent :- State Of U.P. Thru Special Secy. And Another Petitioner Counsel :- S.K. Dwivedi Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 50401 of 2012 Petitioner :- Moti Lal And Others Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Deo Prakash Singh,M.D. Singh Shekhar Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 50870 of 2012 Petitioner :- Moti Lal Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Deo Prakash Singh,Suneel Pratap Singh Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 47291 of 2012 Petitioner :- Smt. Devendra Kaur And Others Respondent :- State Of U.P. And Others Petitioner Counsel :- Dr. S.B. Maurya,Mrs. Mamta Maurya Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 49760 of 2012 Petitioner :- Vishwanath And Others Respondent :- State Of U.P. And Others Petitioner Counsel :- Syed Imtiyaz Ali Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 54031 of 2012 Petitioner :- Brij Mohan Singh Respondent :- State Of U.P. And Others Petitioner Counsel :- R.K. Gupta Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 53333 of 2012 Petitioner :- Smt. Shakuntala And Another Respondent :- State Of U.P. & Others Petitioner Counsel :- Deo Prakash Singh Respondent Counsel :- C. S. C. With Case :- WRIT - C No. - 54684 of 2012 Petitioner :- Bhawar Singh Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Sunil Pratap Singh Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 54643 of 2012 Petitioner :- Radhe Shyam Prasad Nishad Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Dev Brat Mukherjee Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 54458 of 2012 Petitioner :- Naveneet Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Rajesh Yadav Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 54605 of 2012 Petitioner :- Mangal Respondent :- State Of U.P. And Others Petitioner Counsel :- Shiv Sagar Singh Respondent Counsel :- C.S.C.,A.S.G.I.(2012/5434) With Case :- WRIT - C No. - 54863 of 2012 Petitioner :- Mohan Lal Respondent :- State Of U.P. And Others Petitioner Counsel :- Om Prakash Tripathi,Abhishek Rai,Umesh Narain Sharma Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 56830 of 2012 Petitioner :- Dilip Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- Pushpila Bisht,Sandeep Kumar Srivastava Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 59526 of 2012 Petitioner :- M/S Vilayati Ram Mittal Respondent :- The State Of U.P. And Others Petitioner Counsel :- Mukesh Prasad Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 59876 of 2012 Petitioner :- Ram Ashrey Nishad Respondent :- State Of U.P. Thru Secy. And Others Petitioner Counsel :- H.M. Srivastava,Neeraj Srivastava Respondent Counsel :- C.S.C. With Case :- WRIT - C No. - 59852 of 2012 Petitioner :- Zakir Hussain Respondent :- State Of U.P. And Others Petitioner Counsel :- Rajesh Yadav Respondent Counsel :- C.S.C. _________ Hon'ble Ashok Bhushan,J Hon'ble Abhinava Upadhya,J
(Delivered by Hon'ble Ashok Bhushan, J.) The petitioners, in all these writ petitions are claiming grant/renewal of mining lease of minor minerals in accordance with the provisions of Uttar Pradesh Minor Minerals (Concession) Rules, 1963 hereinafter called the "Rules, 1963". In several writ petitions, there is challenge to the Government Order dated 31/5/2012 and subsequent Government Orders dated 02/7/2012, 05/7/2012, 26/7/2012 and 05/9/2012. The questions raised in all these writ petitions being inter-connected, all these writ petitions have been heard together and are being decided by this common judgment.
In Writ Petition No.37725/2012, Nar Narain Mishra Vs. State of U.P. counter affidavit and rejoinder affidavits have been exchanged in which the State has also filed its written submission, hence the said writ petition is being treated to be the leading writ petition and reference to the pleadings in the said writ petition shall suffice to decide the controversy raised in all the writ petitions. Apart from noticing the fact that in the leading writ petition, facts in certain other writ petitions shall also be noted to fully appreciate all the issues raised in this bunch of writ petitions.
Writ Petition No. 32828/2012, has been filed by Shailendra Singh praying for a writ of mandamus directing the respondents, especially respondent no.2, to decide the mining lease renewal application dated 23/3/2011 in respect of Gata No. 2451 area 6.50 acre, situate in Village Jarar, Tehsil Naraini, District Banda. Petitioner, Shailendra Singh, claims to have been granted a mining lease on 16/10/2001, in the aforesaid plot for a period of 10 years. The petitioner is claiming a direction for deciding his aforesaid renewal application.
Counter affidavit has been filed by the State in which reference has been made to the Government Order dated 31/5/2012, by which it is claimed that the entire area in the State has been declared to be settled by E-Tendering. A Government Order dated 05/9/2012, was also annexed clarifying the stand of the State regarding renewal application. It has been stated in the said Government Order that as and when the period of lease expires, the same shall be settled by E-Tendering. Copy of the notice dated 06/7/2012, has also been annexed along with the counter affidavit. In pursuance of which Government Order dated 31/5/2012, the District Magistrate, Banda has issued notice for grant of lease by E-tendering. Details of the area along with the names of mineral and reserved price has been mentioned in the notice. It has been further pleaded that the application of the petitioner for renewal has already been rejected and the plot with regard to which the petitioner had claimed right for renewal is covered by the notice dated 06/7/2012. While hearing the Writ Petition No.32828/2012, this court passed a detailed order on 31/7/2012, asking the State to clarify its stand by filing affidavit of Principal Secretary, Geology and Mining, U.P. Lucknow. Following is the order passed on 31/7/2012:
"Heard Sri Birendra Singh and Sri Mukesh Prasad, counsel for the petitioner and Sri Yashwant Varma appearing for the State.
By this writ petition, the petitioner has prayed for a mandamus directing the respondents to decide the mining lease renewal application dated 23.3.2011. Along with this writ petition, there are other writ petitions listed . In some of the petitions, there are prayer for grant of fresh lease under Chapter II of the U.P.Minor Mineral Concession Rules, 1963. The State Government has issued a Government Order dated 31.5.2012 which has been brought on record as Annexure-CA-1 to the counter affidavit. The subject matter of the Government Order is as follows:
"Vishay: Pradesh Mein Balu, Moram, Bajari evam Bolder Ke Rikt Kshetron Ko Uttar Pradesh Up Khanij (Parihari), Niyamawali, 1963 Ke Adhyay-4 Ke Providhono Ke Antargat e-tendering Pranali Ke Madhyam Se Parihar Par Sweekreet Kiye Jane Ke Sambhandh Mein"
The Government Order provides that with intent to bring more transparency and towards more revenue, it has been decided to declare all the vacant area bearing Sand, Moram, Bajari and Bolder in the State under Chapter IV to be settled by method of e-tendering. Para (2) of the Government order further states that all the Government Orders issued for grant of lease under Chapters II and VII are cancelled. However, in the next sentence of para (2), it has been stated that by earlier Government Order dated 1.11.2011, the District Magistrates were entitled to grant lease and renewal of lease at their level, which Government Order shall continue to operate.
A plain reading of the Government Order indicates that the main purpose and object of the Government Order was to declare the vacant area under Chapter IV, that is, within the meaning of Rule 23 (1) of the U.P. Minor Minerals (Concession) Rules, 1963. What was meant by continuing the Government Order dated 1.11.2011 and upto what extent is not very clear from the Government Order and has not been explained in the counter affidavit filed by the Director, Geology and Mining, U.P.Lucknow. After declaration of area under Rule 23(1) for auction lease by virtue of rule 23 sub-rule (3), the provisions of Chapter II and VI are inapplicable. Rule 23(3) of the Uttar Pradesh Minor Minerals (Concession) Rules, 1963 is as follows:
"On the declaration of the area or areas under sub-rule (1), the provisions of Chapters II, III and Vi of these rules shall not apply to the area or areas in respect of which the declaration has been issued. Such area or areas may be lease out according to the procedure described in this Chapter."
It has been further stated in the affidavit that leases in respect of which an application for renewal has been made, the same shall be considered and disposed of in accordance with the statutory provisions. Whether the areas with regard to which the period of lease has expired on the relevant date and renewal application is pending shall be area vacant or not, this question has to be answered by the State.
Sri Yashwant Varma, prays for and is allowed two weeks' further time to file an affidavit of respondent no.1, i.e., Principal Secretary, Geology and Mining, U.P. Lucknow.
List this petition on 22.8.2012."
Subsequent to the order of this court, detail counter affidavit has been filed.
As noted above, in Writ Petition No.32828/2012, the only prayer pressed by the petitioner was for a writ of mandamus directing the respondent no.2, the District Magistrate to decide the mining lease renewal application dated 23/3/2011.
Now, the facts of the leading writ petition being Writ Petition No.37725/2012 are to be noted. The petitioner, Nar Narain Mishra was granted a mining lease under Chapter II of the Rules, 1963, on 17/5/2007, for a period of 3 years for an area known as Yamuna Zone No. 10, Plot No. 34A measuring 30 acres, P.S. Sarai Akil, District, Kaushambi. Petitioner made an application for renewal of the mining lease which is said to be pending. Petitioner has referred to notification dated 14/9/2006, issued by the Central Government in exercise of power conferred by sub-section (1) and Clause 5 (2) of section 3 of the Environment (Protection) Act, 1986, read with clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986. The said Notification directs that on and from the date of its publication, the required construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule to this notification entailing capacity addition with change in process and/or technology shall be undertaken in any part of India only after the prior environmental clearance from the Central Government or, as the case may be, by the State Level Environment Impact Assessment Authority.
The State Government directed the subsisting lease holders to apply for and obtaining environmental clearance in view of the notification dated 14/9/2006. A Division Bench of this Court in Writ Petition No.l9416 (M/B) 2010 Mohd. Kausar Jah Vs. Union of India and Ors, vide judgment and order dated 29/4/2011, directed that w.e.f. 01/7/2011, no person anywhere in the State will carry out any mining activities of minor mineral which do not have any environmental clearance under the notification dated 14/9/2006. The writ petition also makes reference to the judgment of the Apex Court dated 27/2/2012, in Deepak Kumar & Ors. Vs. State of Haryana & Ors, (2012) 4 SCC 629, by which the Apex Court directed that leases of minor minerals including their renewal for an area less than 5 hectare be granted by the States/Union Territories only after getting environmental clearance from the Ministry of Environment and Forest. The Apex Court also issued certain other directions in the said judgment which shall be hereinafter noticed in detail. The State Government issued a Government Order dated 31/5/2012, for granting mining lease on the vacant area of sand, moram, bajri and boulder under Chapter IV of the Rules, 1963 by E-tendering method. After the Government Order dated 31/5/2012, District Magistrate, Kaushambi issued a notice dated 06/7/2012, inviting applications by E-tendering for grant of mining lease and the last date for receiving the tender was 23/8/2012. In the notice dated 06/7/2012, details of area, plot nos., reserved price along with the terms and conditions were given by the District Magistrate, copy of which has been enclosed as Annexure-2 to the writ petition. Another Government Order dated 26/7/2012, was issued by the State Government by which it was provided that the period of lease of auction shall be three years instead of one year, and for E-tendering in place of earnest money of Rs. 2000/- the same shall be 25% of the reserved price. The petitioner, Nar Narain Mishra, filed the writ petition praying for following reliefs:
"(a) to issue a writ, order or direction in the nature of certiorari, quashing the Government Order No.1277/86-2012-278/2011 dated 31.5.2012 (Annexure-1 to the writ petition).
(b) to issue a writ, order or direction in the nature of certiorari, quashing the Government Order dated 26.07.2012. (Annexure-6 to the writ petition).
(c) to issue a writ, order or direction in the nature of certiorari, quashing the notice dated 6.07.2012, published in the daily Hindi news paper dated 9.7.2012 (Annexure-2 to the writ petition).
(d) to issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(e) to award cost of the petition to the petitioner."
Counter affidavit has been filed by the State in the writ petition, contents of which shall be hereinafter noticed in detail. Rejoinder affidavit to the counter affidavit has also been filed.
In Writ Petition No.56827/2012, Mohar Singh Vs. State of U.P. & Ors, the petitioner claims to be engaged in the business of mines and mineral and is fully eligible for being granted the lease under the Rules, 1963. The petitioner challenging the Government Orders issued form time to time after the Government Order dated 31/5/2012, has prayed for following reliefs in the writ petition:
"(i) Issue a writ, order or direction or writ in the nature of certiorari, quashing the government order dated 31.5.2012, as contained in Annexure No.1 to the writ petition.
(ii) Issue a writ, order or direction or writ in the nature of certiorari, quashing the government orders dated 02.7.2012 and 5.7.2012 as contained in Annexure No.2 and 3 to the writ petition.
(iii)Issue a writ, order or direction or writ in the nature of certiorari, quashing the notification dated 6.7.2012, as contained in Annexure No.4 to the writ petition.
(iv)Issue a writ, order or direction or writ in the nature of certiorari, quashing the government order dated 26.7.2012, as contained in Annexure No.5 to the writ petition.
(v)Issue a writ, order or direction or writ in the nature of mandamus commanding the respondents no.1 to 4 to settle the mining leases/rights in accordance with law after making compliance of the Hon'ble Supreme Court's order dated 27.02.2012 passed in the Special Leave Petition No.19628-19629 of 2009.
(vi)Issue a writ, order or direction or writ in the nature of mandamus commanding the respondents no.1 to 4 to seek the environmental clearance under the EIA Notification dated 14.09.2006 and thereafter notify the area for grant of leases.
(vii) Issue any other writ, order or direction as may deem fit ad proper in the circumstances of the case;
(viii) Also award the cost of this petition to the Petitioner."
Writ Petition No.41415/2012, has been filed by Sanjai Kumar Singh claiming to be a prospective bidder. The petitioner is challenging the notice dated 07/7/2012, published in the newspaper "Hindustan" dated 10/7/2012 inviting tenders for grant of mining lease in the vacant areas of District Chandauli. Prayer has also been made for quashing the Government Order dated 31/5/2012. Further, a prayer was made for issuing a writ of mandamus directing the respondents to proceed with the settlement of mining leases in accordance with the directions issued by the Hon'ble Apex Court in Deepak Kumars Case (supra) as well as this Hon'ble Court time to time.
In Writ Petition No.47724/2012, Gauri Shanker Vs. State of U.P. & Ors, the petitioner claims to be engaged in the profession of excavation of sand, found in River Bed-side. Petitioner has also claimed preferential right while granting mining lease being a person belonging to socially and educationally backward class. The petitioner has challenged by means of the writ petition the Government Order dated 31/5/2012 as well as the notice dated 07/7/2012 and amended notice dated 31/7/2012, inviting applications by e-tendering for various Mining Plots of Tehsil Sakaldiha District-Chandauli. A writ of mandamus has also been prayed directing the respondents to grant Mining Lease of River Bed-side minerals such as Sand, Moram, Bajri or Bounder under Chapter II of Rules, 1963.
We have heard Shri Mukesh Prasad, Shri M..D.Singh Shekhar, learned Senior Advocate, Shri Dev Brat Mukerji, Pushpila Bisht, Deo Prakash Singh and several other learned counsel appearing for the petitioners in this bunch of writ petitions, Shri S.P. Gupta, learned Advocate General has appeared for the State assisted by Shri Yashwant Verma, learned Chief Standing Counsel and Shri Bal Krishna, learned Standing Counsel.
As noticed, above, the challenge in most of the writ petitions are to the Government Orders dated 31/5/2012 and 26/7/2012 and consequential tender notice issued by the District Officer inviting applications by E-tendering method for grant of mining lease under Chapter IV of the Rules, 1963. The writ petitions mainly falls in following three categories:
(i)The petitioners who were earlier granted mining lease under Chapter II of the Rules, 1963 and had made applications for renewal, which renewal applications were pending at the time when Government Order dated 31/5/2012 was issued.
(ii)The petitioners who have made applications for grant of mining lease in pursuance of earlier notice of the District Officer inviting applications for grant of mining lease under Chapter II of the Rules, 1963 which applications were pending at the time of Government Order dated 31/5/2012.
(iii)The petitioners who claim to be engaged in the business of excavation of sand and or other minor minerals and are intending applicants/bidders who are aggrieved by the government Order dated 31/5/2012 and the other Government Order dated 26/7/2012 and the consequential notice issued by the District Magistrate inviting applications for grant of mining lease by E-tendering.
Learned counsel for the petitioners in support of their writ petitions have made following submissions:
The Government Order dated 31/5/2012, at best is a policy decision of the State for adopting E-tendering for the purposes of grant of mining lease under Chapter IV of the Rules, 1963, but the Government Order dated 31/5/2012, cannot be termed as a declaration within the meaning of Rule 23 of the Rules, 1963, hence the right of the petitioners whose renewal applications are pending or those applications for grant of mining lease are pending under Chapter II of the Rules, 1963 are unaffected and may be disposed of in accordance with the provisions of Chapter II of the Rules, 1963. That the Government Order 31/5/2012, at best shall apply to vacant areas, those areas for which applications for renewal have been made within time and which are pending cannot be treated to be vacant area and shall not be covered by the Government Order 31/5/2012, or by consequential tender notice.
That vide Government Order 31/5/2012, the earlier Government Order 01/11/2011, which authorized the District Magistrate to approve/renew the mining lease having been continued, the right of the applicants whose mining leases application or application for renewal are pending is unaffected and should be proceeded with in accordance with the Government Order dated 01/11/2011.
The process of E-tendering which has been introduced by the Government Order 31/5/2012, for grant of mining lease under Chapter IV of the Rules, 1963 is not contemplated by Rules, 1963 nor the E-tendering is permissible according to Rules, 1963.
That inviting applications by E-tendering is a cumbersome procedure which has been adopted only with an intent to harm the interest of the poor persons who are socially and educationally backward and are engaged in traditional occupation of excavation of sand and other minor minerals. It shall not be possible for intending bidders situated in far of corner of States to apply by E-tendering.
The Government Order 26/7/2012, by which the period of lease has been increased from 1 year to 3 years and the earnest money from Rs. 2000/- to 25% of the reserved price is in breach of the statutory Rules, 1963 and is liable to be set-aside. The State Government cannot justify the Government Order dated 26/7/2012, by which the period of lease has been increased and the amount of earnest money as fixed in the Rules, 1963 has been changed.
Statutory Rules, 1963 provide for only Rs.2000/- earnest money whereas by Government Order dated 26/7/2012 the earnest money has been increased up to 25% of the reserved price which is exorbitant and has been introduced to deny the claim of the majority of the intending purchasers. The said clause has been added only to benefit the big contractors or moneyed people. This clause has virtually deprived majority of persons to participate in the E-tendering process.
Rule 68 of the Rules, 1963 is a power given to the State Government to grant relaxation from the terms and conditions of the lease in special cases and there cannot be any general order for relaxing the statutory rules and the condition as prescribed in the Rules, 1963. The State Government by the aforesaid Government Order cannot change the statutory conditions of rules as provided under Chapter IV of the Rules, 1963 for grant of mining lease and the Government Order issued contrary to the aforesaid rules are no-nest and inoperative.
The State Government cannot exercise any power under Article 162 of the Constitution of India since it has no legislative power with regard to the development of minerals which is a field covered by the Mines and Minerals (Regulation and Development) Act, 1957 hereinafter called the "Act, 1957". The Government Order 31/5/2012, has not been issued as per the requirement of Article 166 of the Constitution of India.
The Apex Court in Deepak Kumar's case (supra) has issued various directions to the State of U.P. and all other States to amend the rules framed under Section 15 of the Act, 1957 in accordance with the recommendations of the Ministry of Environmental and Forest as noted in the judgment as well as in the model guidelines issued by the Ministry of Mines, Government of India within six months. The State Government without complying with the directions of the Apex Court as issued in Deepak Kumar's case (supra) has issued the Government Order 31/5/2012, which is contrary to the spirit of the order of the Apex Court. The State Government ought to have proceeded with the settlement of mining rights only after amending the Rules, 1963 according to the directions issued by the apex court.
Shri S.P. Gupta, learned Advocate General refuting the submission of the learned counsel for the petitioners supported all the actions of the State Government. He submitted that the Government Order dated 31/5/2012, is a declaration as contemplated under Rule 23 of the Rules, 1963 in respect of vacant area alone. Vacant area is only such area in respect of which no lease is subsisting and will also exclude those area in respect of which application for renewal has been granted up to 05/9/2012. The notices issued by the District Officer in pursuance of the Government Order dated 31/5/2012, do not pertain to any area which may be subject to any subsisting lease, nor it pertain to any area in respect of which an application for renewal may have been made or pending. Rule 23 of the Rules, 1963 as amended requires declaration to be made by the State Government by general or special order. He submits that there is no requirement of publication of declaration in the Gazettee which was required prior to amendment of the Rule 23 of the Rules, 1963. In the general declaration there is no requirement of mentioning any specific area. It is open to the State Government to issue general declaration for the entire State of U.P. or to issue an order in respect of the particular class of an area as in the present case, the vacant area.
Supporting the E-tendering which has been resorted to by the Government Order dated 31/5/2012, it is submitted that the E-tendering shall ensure transparency into the entire process. Reference has also been made to the judgment of the learned Single Judge in Chandrika Prasad Nishad Vs. State of U.P. & Ors, 2006 (24) LCD 1243, where detail directions were issued by the Court for bringing transparency into the allocation of the Government contract. It is submitted that the State Government had already issued Government Orders dated 02/11/2006 and 11/1/2008 setting out in detail the process to be adopted in the case of settling of contract by E-tendering.
Chapter IV of the Rules, 1963 clearly empowers the State Government to settle the mining rights either by auction or by tender or by auction-cum-tender. Rules, 1963 thus, clearly permits the settlement of mining rights by E-tendering process. The E-tendering process is not fundamentally different from the system of inviting tenders.
Refuting the submissions made by the learned counsel for the petitioners Shri S.P. Gupta submitted that conditions which have been brought by Government Order dated 26/7/2012, are not contrary to the rules. The State is fully empowered to grant any mining lease on terms and conditions which may be different from those as laid down in the Rules. Rule 68 of the Rules, 1963, although describes the power of relaxation to be exercised in special cases in fact confers wide power on the State to alter the terms and conditions upon which a mining lease may be granted. These altered terms and conditions may be different from those laid down in these rules.
Provisions of Rule 68, of the Rules, 1963 cannot be read in a restrictive manner with reference to the heading of the provisions, but the provision is to be given full effect. The terms and conditions which have been imposed are for justifiable reasons and has been added for the mineral development. The increase of the lease period from one year to three years would result in the lessee undertaking the mining operations in a planned and systematic, scientific manner. The condition regarding payment of security deposit and earnest money has been altered to ensure that only serious prospective investor enters the fray and participate in the bidding. The condition with regard to forfeiture of the deposit of the amount has been put in place to ensure that the area provisionally settled in favour of the bidder is not left vacant and to ensure that the selected bidder takes expeditious steps to obtain environmental clearance.
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.
The Apex Court's judgment in Deepak Kumar's case (supra) is basically with regard to environmental clearance which has been made compulsory even for leases of less than 5 hectares area. The judgment in Deepak Kumar's case (supra) cannot be read as an injunction operating against the State Government in settling the mining rights in the interragnum period. The recommendation of the Ministry of Environment and Forest did not deal with or touch upon the mode and manner of settlement of mining rights. The submission that the Government Order 31/5/2012, takes away the preferential right conferred under Chapter II of the Rules, 1963 is violative of Article 15 sub-clause 4 of the Constitution of India is not correct.
Article 15 of the Constitution of India is in the nature of enabling provision. The petitioners cannot claim as a matter of right that preferential right as enshrined under Chapter II of the Rules, 1963 may also be extended by the State Government while settling the rights under Chapter IV of the Rules, 1963. The preferential right are not to be found in Chapter IV of the Rules, 1963. The preferential right is relevant so long as the area proposed to be leased is contemplated to be settled under Chapter II.
Shri S.P. Gupta, learned Advocate General submits that the Court may permit the District Officers to proceed with the settlement of rights by E-tendering, since the area with regard to which tender notices have been issued in different districts are the vacant area and are not included in any subsisting lease.
Learned counsel for the petitioners as well as Shri S.P. Gupta, learned Advocate General in support of their respective submissions have placed reliance on various decisions of this Court as well as of the Supreme Court which shall be hereinafter referred to while considering the submissions in detail.
We have carefully considered the submissions of the learned counsel for the parties and have perused the records.
From the submissions of the learned counsel for the parties and pleadings on the record following are the main issues which arise for consideration in this bunch of writ petitions:
(1) Whether the Government Order dated 31/5/2012, is only a policy decision of the State Government or can be treated to be a declaration within the meaning of Rule 23 sub-rule (1) of the Rules, 1963.
(2) Whether the application filed by the applicants for renewal of mining leases under Chapter II of the Rules, 1963 pending on 31.5.2012 are required to be considered and decided in accordance with Chapter II of the Rules, 1963, even if the Government Order dated 31/5/2012, is treated to be a declaration under Rule 23 sub-rule 1of the Rules, 1963.
(3) Whether the area with regard to which an application for renewal of mining lease or an application for grant of lease under Chapter II of the Rules, 1963 is pending can be treated to be vacant area within the meaning of Government Order dated 31/5/2012.
(4) Whether the settlement of mining rights under chapter IV of the rules, 1963 is permissible by E-tendering.
(5) Whether the action of the State Government in resorting to E-tendering is arbitrary or shall prejudice the rights of person residing in villages and small cities to participate in the process.
(6) Whether the changed conditions by Government Order dated 26/7/2012, i.e. changing the period of lease from one year to three years and increasing the earnest money from Rs. 2000/- to 25% of the reserved price is in violation of the Rules, 1963 and is impermissible.
(7) Whether the State Government in exercise of its power under Rule 68 can change the conditions of grant of lease as has been vide Government Order dated 26/7/2012.
(8) Whether the precondition for exercise of power under Rule, 68 were present in the facts of the present case to enable the State Government to change the conditions for applying for grant of lease under Chapter IV of the Rules, 1963.
(9) Whether the Government Order dated 31/5/2012, is referable to the executive power of the State under Article 162 of the Constitution of India and whether the Government Order dated 31/5/2012, is in consonance with the requirement of Article 166 of the Constitution of India.
(10) Whether the "Imarti Patthar" or "Building Stone" are also covered by the Government Order dated 31/5/2012.
(11) Whether the Government Order dated 31/5/2012, and the notices issued by the District Magistrate inviting applications for grant of lease by E-tendering is not in consonance with the directions issued by the Apex Court in Deepak Kumar's case.
(12) Reliefs, if any.
Before we proceed to consider the issues as noted above, it is relevant to note the statutory provisions covering the field. The Parliament enacted The Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as 1957 Act) to provide for the development and regulations of mines and minerals under the control of the Union. Section 2 of the Act declares that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent provided under the Act. Section 4(1) provides as follows:
"4. Prospecting or mining operations to be under licence or lease.- (1) No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of reconnaissance permit or of a prospecting licence or, as the case may be, a mining lease, granted under this Act and the rules made thereunder."
Section 15 of the Act empowers the State Government by notification in the official gazette to make rule for regulating the grant of query lease or other mineral lease in respect of miner minerals. Under section 15 of the Act, 1957 Rules have been framed namely; U.P. Minor Minerals (Concession) Rules, 1963. Rule 3 of the Rules provides as follows:
"3. Mining operations to be under a mining lease or mining permit.-(1) No person shall undertake any mining operations in any area within the State of any minor mineral to which this rules are applicable except under and in accordance with the terms and conditions of a mining lease or mining permit granted under these rules;
Provided that nothing shall affect any mining operations undertaken in accordance with the terms and conditions of a mining lease or permit duly granted before the commencement of these rules.
(2) No mining lease or mining permit shall be granted otherwise than in accordance with the provisions of these rules."
Chapter II relates to "Grant of Mining Lease". Rule 5 provides that an application in Form MM-1 for grant of mining lease or in form MM-1(a) for renewal shall be addressed to the State Government. Rule 6A provides that an application for renewal of mining lease may be made at least six months before the date of expiry of the mining lease. Rule 9 provides for preferential rights of certain persons and Rule 9A provides for preferential right of certain persons in respect of sand. Chapter III contained provisions for Payment of Royalty and Dead Rent. Chapter IV is for Auction Lease. Rule 23 provides for Declaration of Area for auction/Tender/Auction-cum-tender lease. Rule 23 which is relevant for the present purpose is as follows:
"23.- Declaration of area for auction/ tender/auction-cum-tender/lease:- (1) The State Government may by general or special order, declare the area or areas which may be leased out by auction or by tender or by auction-cum-tender.
(2) Subject to direction issued by the State Government from time to time in this behalf no area or areas shall be leased out by auction or by tender or by auction-cum-tender for more than five years at a time:
Provided that the period in respect of in situ rock type mineral deposit shall be five years and in respect of river bed mineral deposit shall be one year at a time.
(3) On the declaration of the area or areas under sub-rule (1) the provisions of Chapters II, III and VI of these rules shall not apply to the area or areas in respect of which the declaration has been issued. Such area or areas may be leased out according to the procedure described in this Chapter.
(4) The District Officer shall get the area or areas declared under sub-rule (1), evaluated for quality and quantity of mineral for fixing minimum bid or offer by the Director, Geology and Mining, Uttar Pradesh or by an officer authorised by him before the date fixed for auction or tender or auction-cum-tender, as the case may be."
Rule 26 contains certain restrictions on grant of lease. Rule 27 contains procedure for Grant of lease by auction. Rule 27A contained procedure for grant of lease by tender. Rule 27-C contains group lease by Auction Cum Tender. Rule 29 provides for Execution of lease Deed. Chapter V contains provisions with heading "Conditions of Mining Lease". Chapter VI relates to Mining Permit. Chapter VII provides Contraventions, Offences and Penalties and Chapter VIII contains Miscellaneous. Rule 68 provides for "Relaxation of rules in special cases". Rule 71 provides for Delegation which provides that State Government may by notification direct that any power exercisable by it under the rules may be exercisable by such officer or authority as State Government may specify in the notification.
The first three issues being inter connected are being taken together. The first ground to the challenge of the notification dated 31.5.2012 issued by the State Government is that the State Government has not made any declaration within meaning of Rule 23 of the Rules hence, provisions of Chapter II are still in force entitling the applicants whose renewal application as well as lease applications are pending to be considered in accordance with law. Learned counsel for the petitioners submits that the Government Order dated 31.5.2012 is at best a policy decision of the State to resort to e-tendering. It is submitted by the petitioners that policy decision has been taken by the State Government in pursuance of the direction of this Court in Chandrika Prasad Nishad's case (supra) as has been stated in the counter affidavit filed by the State Government. It is submitted that Government order only reiterates the policy decision taken by the State and is not a declaration under Chapter IV for which there is no indication in the Government Order. Rule 23(1) empowers the State Government to declare the area or areas which may be leased out by auction or by tender or by auction-cum-tender by general or special order. Rule 23(1) was amended by notification dated 26.9.1990. It is useful to note the unamended and amended Rule 23(1) Unamended Amended
23. Notification of area for auction lease- (1) The State Government may notify in the Gazette specific area which may be leased out by auction .
23.- Declaration of area for auction/ tender/auction-cum-tender/lease:- (1) The State Government may by general or special order, declare the area or areas which may be leased out by auction or by tender or by auction-cum-tender.
Earlier the Rule provided notification in the gazette of specific areas which may be leased out by auction. By amendment made in Rule 23(1), the requirement of gazette publication and requirement of mentioning specific areas has been deleted and now Government is empowered by general or special order to declare the area or areas which may be leased out by auction. No particular format or language is required to be expressed for declaration contemplated by Rule 23(1). The order itself has to be looked into to find out the real intendment of the order. Prior to the Government order dated 31.5.2012 the area was being settled under Chapter II for grant of lease. A policy decision was taken by the State to declare the vacant area in the State for settlement under Chapter IV by auction. Paragraph 1 of the Government Order dated 31.5.2012 clearly records the decision taken by the Government in this context and the reasons for resorting to the said decision. Paragraph 2 provides that all earlier Government Orders issued for grant of mining lease under Chapter II and VI are canceled. Further paragraph 3 provides the various steps to be taken for initiating process of settlement of mining right by e-tendering.
A Division Bench of this Court had occasion to consider a similar issued in 1992 AWC 1506 M/s Bundelkhand Minerals and Alkali Pvt. Ltd. Vs. State of U.P. In the said case, the State Government has issued a Government Order dated 5.9.1990 by which a decision was taken to grant lease of all minerals available in the State through the system of auction tender in continuation of which a Government Order dated 16.11.1990 was issued. A similar submission was raised that the Government Order dated 16.11.1990 cannot be treated to be a declaration within the meaning of Rule 23(1). Repelling the arguments of the petitioners following was laid down in paragraphs 8,9 and 10:
"8. We have carefully examined the G.O. dated November 16, 1990, and in our opinion it amounts to a general declaration to the effect that the entire area of minor minerals in the State shall be leased out on the basis of auction/tender/auction-cum-tender as contemplated by Sub-rule (1) of Rule 23. Since the State Government has issued a declaration under Sub-rule (1) of Rule 23 with regard to the entire mining area available in the State, provisions of Chapter IT, III and VI shall not apply to any mining area in the state in view of Sub-rule (3) of Rule 23. The effect of the declaration made by the Stale Government is that lease of mining area can be granted only in accordance with the procedure prescribed by Rules 27, 27-A or 27-B of the Rules The Petitioner had moved the application on 9-3-1987 in Form MM-1 for grant of mining lease in accordance with Chapter II. In view of this development such an application could not have been allowed by the State Government as the provisions of Chapter II do not apply to the area for which application was moved In this view of the matter we are of opinion that the Petitioners application was rightly rejected and there is no illegality in the order dated 4-10-1991 passed by the State Government.
9. Learned Counsel for the Petitioner has vehemently contended that the G.O. dated 16th November, 1990, does not amount to a general declaration as required by Rule 23(1) of the Rules and, therefore, the provisions of Sub-rule (3) will not apply and consequently Chapters II, III and VI of the Rules shall continue to be in operation in our opinion the contention of the learned Counsel for the Petitioner is wholly unfounded. What Sub-rule (1) of Rule 23 requires is that the State Government may by general special order declare the area or areas which may be leased out by auction or by tender or by auction-cum-tender. The Rules have not laid down any particular from in which the requisite declaration is to be made nor the manner of making declaration has been laid down Prior to amendment, Sub-rule (1) of Rule 23 provided that (he State Government may notify in the gazette specific areas which may be leased out by auction Therefore, prior to amendment the specific areas had to be mentioned and the order of the State Government had to be notified in the gazette. However, the word ''specific" has been omitted in the amended rule and the requirement of notification in the gazette has also been omitted What the rules provides now is that the State Government may declare the area which may be leased out by auction or by tender or by auction-cum-tender. This order may be general or a special order The meaning of the word "declaration" as given in different dictionaries is as follows:
Chambers Twentieth Century Dictionary:
Declare-to make known; to announce to make a full statement of, to make a statement, to announce one's decision.
Declaration--act of declaring; that which is declared; a formal announcement.
Websters Third New International Dictionary:
Declare--to make clear ; to make known publicly, formally or explicitly, especially by language: announce, proclaim or publish specially by formal statement or official pronouncement; communication to others : to make evident : serve as a means of revealing : to make a formal acknowledgment of The New Lexicon Webster's Dictionary:
Declare--to make known explicitly or formally; announce; to give particulars of Wharton's Law Lexicon:
Declaration--a proclamation or affirmation, open expression or publication.
Collins Dictionary:
Declare--a formal statement or announcement : explicit and methodic statement : formal announcement.
Law Lexicon by P. Ramanatha:
Declare--a formal announcement : a deliberate statement.
The word "declare as used in Sub-rule (1) of Rule 23 would, therefore, mean "to make known or to announce or to make a statement". By the G.O. dated November 16, 1990, the State Government has made a statement and has made it known publicly that entire areas of minor minerals in the State of U.P. shall be leased out on the basis of auction/tender/auction-cum-tender. It has been further announced that the lease will be given in accordance with the procedure prescribed by Rule 27, 27-A or 27-B which is in Chapter IV of the Rules. It cannot, therefore be said that the G.O. dated November 16, 1990, does not amount to a general declaration as contemplated by Sub-rule (1) of Rule 23.
10. Learned Counsel for the Petitioner has contended that under Sub-rule (1) of Rule 23 the State Government is required to declare the specific area which have to be leased out by auction or by tender or by auction-cum-tender and since in the G.O. aforesaid specific areas have not been mentioned therefore it will not amount to a general declaration as required by Rules. The submission is that the details, namely, the plot nos., name of village and district, should have been given in the order Para 2 of the order shows that a direction has been given with regard to the entire mining area available in the State. Since the State Government has made a declaration with regard to entire mining area of the State under Sub-rule (1) of Rule 23, and mining area has been left out, it was not at all necessary to give the details like plot numbers, village or district. The position may have been different if the order had been issued with regard to some specific areas. The submission made by learned Counsel, in our opinion, has no substance."
The Government order dated 31.5.2012 uses the word "Rikt Kshetron" (Vacant areas). The areas in which no mining lease/licence is subsisting under Chapter II or Chapter VI shall be vacant area with regard to which there is no dispute. The contention of learned counsel for the petitioner is that in the areas with regard to which an application for renewal has been filed six months before expiry of the lease and the said renewal applications are pending can not be treated to be a vacant area since the applicant's right for renewal of the lease subsists and for those areas right of consideration being still there, it has to be taken out of the ambit of the Government order dated 31.5.2012. In certain cases applications for grant of mining lease in accordance with the notices issued inviting applications were submitted and are still pending. The said area should also be kept out of purview of the Government order dated 31.5.2012. "Vacant" has been defined in Webster Comprehensive Dictionary as follows:
" Va-cant (va'kent) adj. 1. Containing of holding nothing: being without contents of occupants; especially, devoid of occupants; empty. 2 Occupied with nothing; unemployed; unencumbered; free. 3 Being or appearing without intelligence; inane. 4 Having no incumbent; unfilled; a vacant office. 5 Law unoccupied or unused, as land; also, abandoned; having neither claimant nor heir, as an estate."
Rule 23(3) provides that on declaration of area or areas under sub rule (1), the provisions of Chapters II, III and VI shall not apply to the area or areas in respect of which the declaration has been issued. The stand taken by the State is that even areas which are on the lease at the time of issuance of the Government Order dated 31.5.2012 shall also to be settled by auction under Chapter IV as and when the periods comes to an end. The State stand is that there is no inviolable rights of renewal in a lease and the right of consideration of the renewal and the claim of renewal of the lease have to be dealt with in accordance with the Rules as existing at the relevant time. It is submitted that declaration under Chapter IV having been issued all areas stand notified for settlement under Chapter IV, the renewal of lease cannot be granted since renewal can be granted only in accordance with the procedure prescribed under Chapter II which provision is no more applicable. When the State issued the Government Order on 31.5.2012 applying the same to all vacant areas, it intended to apply the Government Order on the areas which were not occupied. No exception has been provided in the Government order exclude out those areas in respect of which renewal applications are pending. An application for renewal of lease is in essence an application for grant of lease and same principle has to be applied with regard to applications which are pending for grant of lease and on similar analogy, if the submissions of the petitioners are to be accepted those areas on which applications for grant of lease have been submitted should also be kept out of purview of the Government Order dated 31.5.2012. No such intention or object is decipherable from the Government order. By subsequent Government Order dated 5.9.2012, the State Government has provided that those areas where renewal has been sanctioned or granted on or before 5.9.2012, shall not be settled under Chapter IV. The cases where renewal has been granted are on different footings. However, in writ petitions before us, there is no such applicant in whose favour renewal has been granted on or before 5.9.2012 nor in favour of any such person whose renewal was granted before 5.9.2012 is under challenge thus, it is not necessary for us to express any opinion in these writ petitions regarding the correctness of the exception created by the State with regard to exemption of those applicants whose renewal was granted or sanctioned by 5.9.2012. Three years lease was granted to Nar Narain Misra, the petitioners of writ petition No. 37725 of 2012 (Leading writ petition) which came to an end on 16.5.2010. The petitioners claim to have applied for the renewal under Rule 6-A within the time prescribed which applications were said to be pending. In writ petition No. 32828 of 2012, one year's lease was granted to the petitioners, which came to an end on 15.10.2011 and the application for renewal was submitted on 20.3.2011. The petitioner has claimed for a mandamus commanding the respondents to decide the lease renewal application dated 20.3.2011.
Whether the petitioners have any right on the basis of which a mandamus can be issued to the respondents to consider the renewal applications, is the question to be answered. Learned Advocate General has relied on the judgment of the apex Court reported in (1981) 2 SCC 205 State of Tamilnadu Vs. M/s Hind Stone and others. The apex Court had occasion to consider the provisions of Tamilnadu Minor Mineral Concessions Rules, 1959. Rule 8-C was inserted in the Rule on December 2,1977 which provided that on and from 7th December, 1977 no lease for quarrying black granite shall be granted to private persons. Rule 9 provided for renewal of the lease. Several persons who held leases for querying the black granite belonging to the State Government and whose lease was about to expire applied for renewal. Some applications were made long prior to insertion of Rule 8-C. Some applications were made after Rule 8-C came into force. All the applications were rejected in view of the Rule 8-C, which was challenged in the High Court. The writ petition was allowed by the High Court taking the view that the power of the State under the Rules framed under section 15 was to only regulate and not to prohibit mining lease. Appeal was filed by the State challenging the judgment of the High Court. One of the questions which was considered by the apex court was as to whether the amended provisions of Rule i.e. Rule 8-C was attracted when the applications for renewal of the lease were to be dealt with. It was held that Rule 8-C is attracted for considering the applications for renewal. It was also held by the apex Court that the applicants cannot claim any right to have the applications disposed of on the basis of the rule in force at the time of making of the applications. Following was laid down in paragraphs 12 and 13 of the judgment:
"12. The next question for consideration is whether Rule 8C is attracted when applications for renewal of leases are dealt with. The argument was that Rule 9 itself laid down the criteria for grant of renewal of leases and therefore rule 8C should be confined, in its application, to grant of leases in the first instance. We are unable to see the force of the submission. Rule 9 makes it clear that a renewal is not to be obtained automatically, for the mere asking. The applicant for the renewal has, particularly, to satisfy the Government that the renewal is in the interests of mineral development and that the lease amount is reasonable in the circumstances of the case. These conditions have to be fulfilled in addition to whatever criteria is applicable at the time of the grant of lease in the first instance, suitably adapted, of course, to grant of renewal. Not to apply the criteria applicable in the first instance may lead to absurd results. If as a result of experience gained after watching the performance of private entrepreneurs in the mining of minor minerals it is decided to stop grant of leases in the private sector in the interest of conservation of the particular mineral resource, attainment of the object sought will be frustrated if renewal is to be granted to private entrepreneurs without regard to the changed outlook. In fact, some of the applicants for renewal of leases may themselves be the persons who are responsible for the changed outlook. To renew leases in favour of such persons would make the making of Rule 8C a mere exercise in futility. It must be remembered that an application for the renewal of a lease is, in essence an application for the grant of a lease for a fresh period. We are, therefore, of the view that Rule 8C is attracted in considering applications for renewal of leases also.
13. Another submission of the learned counsel in connection with the consideration of applications for renewal was that applications made sixty days or more before the date of G.O.Ms. No. 1312 (2-12-1977) should be dealt with as if Rule 8C had not come into force. It was also contended that even applications for grant of leases made long before the date of G.O.Ms. No. 1312 should be dealt with as if Rule 8C had not come into force. The submission was that it was not open to the Government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable tune clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. None has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of G.O.Ms. No. 1312 should be dealt with as if Rule 8C did not exist."
In view of the above pronouncement of the apex Court, it is clear that the applicants whose application for renewal is pending cannot claim that their application for renewal be considered under Chapter II and those areas be kept out of purview of the Government order dated 31.5.2012. The areas having been declared under Rule 23(1), the provisions of Chapter II under which renewal of lease can be granted becomes inapplicable. The new state of affairs which have been brought into existence by declaration under Rule 23(1) has to be given its full effect and no rider or exception can be read specially when the Government Order dated 31.5.2012 does not contemplate any such exception. Thus, the submission of the applicants that their renewal applications which were pending at the time of issuance of declaration on 31.5.2012 shall be considered according to Chapter II cannot be accepted and the areas in respect of which the applications for renewal were pending on 31.5.2012, cannot be said to be not vacant.
The issues No. 4 and 5 which relate to e-tendering are taken together. E-tendering is nothing but electronic tendering. The Government Order dated 31.5.2012 contains a declaration that vacant areas of the State containing Balu, Morang, Bajri and boulders shall be settled by e-tendering. Paragraph 3 of the Government Order itself contains the various steps to be taken by the Government before issuing the tender. The Government Order dated 31.5.2012 refers to an earlier Government Order dated 11.1.2008 by which for enforcing e-tendering in the State of U.P. Electronic Corporation was nominated as nodal body. In the counter affidavit reference to a judgment of Lucknow Bench of this Court in Chandrika Prasad Nishad Vs. State of U.P. And others 2006(24) LCD 1243 has also been made. Lucknow Bench of this Court, while considering the case of Chandrika Prasad Nishad after noticing the report of Pattnaik Committee has issued certain directions. In paragraph 30 of the judgment one of the recommendations of the Pattnaik Committee was noticed i.e. "tendered document should be allowed to be filed online (electronically) in addition to hard copies as is the practice at present." The Court in Chandrika Prasad Nishad's case issued direction to implement the various recommendations of the Pattnaik Committee including the filling the tenders electronically. Copy of the Government order dated 2.11.2006 as well as copy of the order dated 11.1.2008 have been brought on record by the State in the counter affidavit filed in the leading writ petition. The State of U.P. issued guidelines by Government order dated 2.11.2006 to take steps to curb the activities of certain organised group mafias who adopt various methods to stop eligible person to submit tenders in the Government contract. Subsequently, by Government Order dated 11.1.2008, e-procurement system was introduced. The Government Order dated 11.1.2008 has been referred to in the Government order dated 31.5.2012. By government order dated 11.1.2008, in certain contracts, the State Government had already decided to take all steps regarding electronic tendering. Learned Counsel for the petitioner submitted that e-tendering is not contemplated or permissible by 1963 Rules. Rule 27(a) provides procedure for grant of lease by tender. Rule 27- A is quoted as below:
"27. Procedure for grant of lease by auction.- In respect of an area or areas declared under Sub-rule (1) of Rule 23 as area for grant of lease by auction the following shall be the procedure :
(a) The District Officer or the Committee authorised by the State Government under Rule 71 hereinafter referred to as the Committee, shall at least thirty days before the date of auction, give notice in the manner given below indicating the date, time and place of auction :
Provided that where for any reason the auction is not completed a fresh auction may be held after giving a shorter notice of at least seven days:
Word "tender" is a wide word which shall include e-tendering also. The submission of the learned counsel for the petitioners cannot be accepted that e-tendering is not included within the concept of tendering as statutorily recognised under Rule 27-A. The submission of the learned counsel for the petitioner that e-tendering is against the statutory rules cannot be accepted. Learned counsel for the petitioners has also contended that several persons living in far off villages shall be deprived from participating in the process they being not well versed with the electronic modes. To develop the scientific temper is one of the fundamental duties as recognized by Article 51A(h) of the Constitution of India. Wide-spread use of computers and other modern gadgets is increasing day by day. The submission of learned counsel for the petitioners cannot be accepted that person living in the villages shall be deprived to participate in the process. E-tendering has been resorted to extend facility and opportunity to person situated at remote places to participate in the process. The contrary submission of the learned counsel for the petitioners does not appeal to the reason. Inviting tenders electronically is with purpose and object to provide facility to all interested person to participate in the process unhampered by any kind of threat and pressures which were being frequently noticed by the State Government in the process of grant of contract and the lease.
Issues no. 6,7 and 8 being inter-connected are being taken together. All the above issues center round exercise of power under Rule 68 by the State Government. When the tender notices were issued by the District Officers inviting tender electronically to grant mining lease under Chapter IV, there was no such condition that mining lease for sand shall be granted for a period of three years. Further there was no condition that earnest money of 25% of the reserved price shall be payable. A copy of the tender notice issued by the different Districts have been annexed along with the counter affidavit of the State filed in writ petition No. 32828 of 2012. A copy of the model tender document was circulated by the State Government vide letter dated 2.7.2012 copy of which has been filed as Annexure-2 in writ petition No. 56827 of 2012. In the model tender document, the condition of lease being granted for one year regarding the minerals in the river bed was mentioned and further earnest deposit of Rs. 2000/- was required to be paid by bank draft with regard to each mining area separately. The change in the aforesaid condition was effected by the Government Order dated 26.7.2012, copy of which has been annexed as Annexure-6 to the leading writ petition. By Government Order dated 26.7.2012, two conditions were changed in the Government order dated 31.5.2012 which were to the following effect:
(i)The period of lease of minerals under e-tendering shall be three years in place of one year and;
(ii)In place of earnest money of Rs. 2,000/- the earnest money shall be 25% of the reserved price.
Challenge to the aforesaid conditions has been made by leaned counsel for the petitioners basically on two grounds; firstly they submits that the said conditions introduced by the Government Order are contrary to the statutory provisions of Chapter IV hence, are illegal. Secondly, the State Government cannot change the conditions of grant of mining lease in exercise of powers under Rule 68. Learned Counsel for the petitioner submits that present is not a case where power under Rule 68 can be exercised in the manner in which it has been exercised. It is submitted that conditions for applying for lease under chapter IV cannot be changed by exercise of power under Rule 68 and further the power under Rule 68 has to be exercised in particular cases and same cannot be generalized. In so far as first submission of learned counsel for the petitioner is that the said provisions is contrary to the statutory provisions reference is made to Rule 23(2) which provides for period of lease . Rule 23 (2) provides as follows:
"23. (2) Subject to direction issued by the State Government from time to time in this behalf no area or areas shall be leased out by auction or by tender or by auction-cum-tender for more than five years at a time:
Provided that the period in respect of in situ rock type mineral deposit shall be five years and in respect of river bed mineral deposit shall be one year at a time.
Rule 27 A provides procedure for grant of lease by tender. Rule 27A(b) (i) provides that any person who is not ineligible under Rule 26 may submit a tender under his signature in a sealed cover addressed to the District Officer or the Committee containing -(d) " A bank draft of Rupees two thousand in favour of the District Officer towards earnest money" Thus, the period of lease as well as the earnest money are statutorily provided. The State Government by Government Order cannot provide a different period of lease and a different earnest money which is not in accordance wit the statutory provision. Statutory provision entitled a person to submit a tender by annexing a bank draft of Rs. 2,000/-. Asking the petitioners to submit earnest money to the extent of 25% of the reserved price is a provision which seriously affects the right of applicants to participate in the tendering process. The State could not have by Government Order diluted the statutory requirements as contained under Chapter IV.
Sri S.P. Gupta, learned Advocate General being faced with the above contention submits that Rule 68 of the Rules empowers the State Government to relax the Rules and to provide different conditions for grant of lease. Rule 68 of the Rules reads as follows:
"68. Relaxation of rules in special cases.- The State Government may, if it is of opinion that in the interest of mineral development it is necessary so to do, by order in writing and for reasons to be recorded authorise in any case the grant of any mining lease or the working of any mine for the purpose of winning any mineral on terms and conditions different from those laid down in these rules."
The plain reading of the aforesaid rule indicates that for exercising powers under Rule 68 following conditions should exist.
(a)The State Government is of opinion that in the interest of mineral development, it is necessary, and
(b)By order in writing, and
(c)For reason to be recorded authorise in any case grant of any mining lease or the working of any mine for the purpose of winning any mineral on terms and conditions different from those laid down in these Rules .
A plain reading of the rules indicates that relaxation of Rules is contemplated for grant of any mining lease for the purpose of winning any mineral on terms and conditions different from those laid down under Rules. Chapter IV contains a heading "Conditions of Mining Lease" Rule 68 uses the words "for the purpose of winning any mineral on terms and conditions different from t those laid down in these rules." The above phrase clearly referred to the terms and conditions as laid down under Chapter V and by exercise of powers under rule 68, the State cannot change the rules for grant of lease as contained under Chapter IV or Chapter II. Had the Legislature intended that by exercising power under Rule 68, the State can relax any rule contained in 1963 Rules, the wording of the Rules would have been otherwise. The power of relaxation has been expressly limited to terms and conditions as laid down in the Rules in Chapter V of the Rules.
The Division Bench vide its judgment dated 23.1.1978 in writ petition No. 1079 of 1977 Shiv Charan Sharma Vs. State of U.P. while explaining the scope of Rule 68 laid down following page:
"A perusal of the above rule would show that it does not contain any provisions for making an application. Any person desirous to obtain mining lease has to make an application in accordance with Rules 5,6 and 7. Rule 68 only states that, while dealing with such an application the State Government may, by an order in writing and for reasons to be recorded, authorise the grant of mining lease on terms and conditions different from those laid down in this rule. In other words, Rule 68 provides for relaxation of terms and conditions subject to which the lease can be granted and not for making an application for mining lease."
Rule 68 of the Rules came for consideration before this Court on several occasions. Learned Counsel for the petitioners and learned Counsel for the respondents placed heavy reliance on Division Bench of this Court reported in 1981 ALJ 641 Shiv Charan Sharma Vs. State of U.P. In the aforesaid case, the petitioners had made an application for grant of mining lease on 9.7.1979. A further application was made on 6.2.1980. Respondents no. 3 and 4 had also made application on 12.9.1979 and 6.1.1980. The State Government passed an order on 16.2.1980 granting lease to the respondents no. 3 and 4. The petitioners filed revision before the Central Government which was dismissed. All the aforesaid orders granting lease as well as the order rejecting revision was challenged in the High Court. State placed heavy reliance on Rule 68 . The Division Bench held that Rule 68 does not permit the State Government to grant a mining lease to any person of its choice ignoring the requirements of Chapter II or Chapter IV. It was held that it only entitles the State Government to make relaxation in regard to the terms and conditions laid down in the rules in respect of a grant to be made if the State Government is of the opinion that it is necessary so to do in the interest of mineral development. Following was laid down in paragraph 9:
"Rule 68 on which considerable reliance has been placed by counsel for the respondent, in our opinion, does not provide for a third procedure in the matter of granting a mining lease, apart from the two procedures contained, as already pointed out above, in Chapter II and Chapter IV of the rules. On a plain reading of Rule 68, it is apparent that it only gives the State Government a power if, it is of opinion that in the interest of mineral development, it is necessary so to do to authorise by order in writing and for reasons to be recorded in any case the grant of any mining lease or the working of any mine for the purposes of winning any mineral on terms and conditions different from those laid down in these rules. The words 'if it is of opinion that in the interest of mineral development, it is necessary so to do' as also the words 'on terms and conditions different from those laid down in these rules' are important in Rule 68. This rule, in our opinion, does not permit the State Government to grant a mining lease to any person of its choice ignoring the requirements of Chapter II or Chapter IV, as the case may be. It only entitles the State Government to make relaxation in regard to the terms and conditions laid down in these rules in respect of a grant to be made if the State Government is of the opinion that it is necessary so to do in the interest of mineral development. The procedure for the grant contemplated either in Chapter II or Chapter IV will have to be followed even if relaxation of the rules is to be granted. In other words, if no notification under Rule 23 had been issued, applications will have to be invited for the grant of a mining lease as provided by Chapter II and these applications will have to be considered in accordance with the procedure prescribed by that Chapter. If it has been decided that lease in accordance with Chapter II deserves to be granted to a particular person and the State Government is of opinion that in the interest of mineral development it is necessary so to do as contemplated by Rule 68, it may authorise the grant of lease to such a person on terms and conditions different from those laid down in the rules. Likewise, if a notification under Rule 23 (1) has been issued and the Government proposes to grant a mining lease, it will have to conduct an auction and the person to whom the mining lease is to be granted will have to be determined in accordance with Chapter IV of the rules. If it has been decided that the lease has to be granted to a particular person, the Government may again, if it is of opinion that in the interest of mineral development it is -necessary so to do, as contemplated by Rule 68, authorise the grant of any mining lease on terms and conditions different from those laid down in these rules."
Against judgment of this Court dated 24.11.1980 in Shiv Charan Sharma Vs. State of U.P., the State of U.P. filed a Civil appeal in which the apex Court set aside the judgment of the High Court and directed the State of U.P. as well as Union of India to hold auction permitting Shiv Charan Sharma and respondents to bid against each other reserving bid of minimum 1,50,000/-. The apex Court in State of U.P. Vs. Shiv Charan Sharma and others 1981 (Supp.) SCC 85 specifically noted following:
"It would have been necessary for us to examine the relevant rules and the notification issued under the relevant rule. However, before be under took to examine the same, we directed on the earlier date by abundant caution to assure us about the bona fides of the rival contenders that in any event, the State does not lose what it has already obtained, that Shiv Charan Sharma does deposit Rs. 1,50,000/- and Ashok Kumar and Asha Ram do deposit Rs. 2,00,000/- and the deposit will be treated as minimum offer by them for a licence for a period of one year. "
Again the Division Bench of this Court had occasion to consider Rule 68. Following was laid down in AIR 1994 ALLAHABAD 34 Abdul Malik Vs. State of U.P. "Chapter II is relevant for granting applications made for obtaining a lease for carrying on a mining operation. The procedure laid down in that Chapter for granting a lease has got to be followed and without that no lease can be granted even under Rule 68, which simply refers to the relaxation of the terms and conditions of a lease, which is granted in accordance with the Rules."
A Division Bench of this Court in Achhe Lal Vs. District Officer/Collector, (Civil Misc. Writ petition No. 15354 of 1997) decided on 30.5.1997 had considered Rule 68. After referring to the earlier Division Bench judgment in Shiv Charan Sharma's case (supra) following was laid down in paragraph 10:
"10. The power under the proviso to Rule 10 of Rules, 1963 is to be exercised in particular cases, where the State Government is of the opinion that in the interest of mineral development it is necessary to do so. The relaxation under Rule 68 can be granted to a particular person where the State Government is of the opinion that in the interest of mineral development it is necessary so to do. The relaxation under Rule 68 has to be given at the time of granting lease and not at the time of inviting applications. It may also be observed that Clause (3) of the Government Order dated September 8, 1995 (Annexure 'C.A. 2', to the counter-affidavit) in categorical terms lays down that lease of Sand/Moram shall be granted in small viable lots and in normal circumstances no person shall be given lease in respect of a lot comprising land exceeding 50 acres. As rightly observed by Division Bench of this Court, in Kamlesh Nishad's case (supra), by twentieth amendment the State Government intends to give more and more benefits to the persons who are traditionally engaged in the excavation of Sand/Moram and with that object Rule 9A has been inserted in the Rules, 1963. Such object can be achieved only when lots as contemplated by Rule 10 are made and published by the Respondent. If area as big as 300 acres in District Mau is notified, then the people entitled to preferential treatment under Rule 9A would be by implication excluded from making applications inasmuch as they will not be able to deposit security equal to 25% of annual deed rent or annual lease amount of the leased area as required by amended Rule 13 and that would be subversive, to the scheme and policy of the State Government. It need not be stressed that as provided by Sub-rule (2) of Rule 3. no mining lease or mining permit shall be granted otherwise than in accordance with the provisions of Rules, 1963. Thus, the impugned notice so far as it relates to lot No. 4 notifying 300 acres is not according to the Rules, 1963 and as such has to be set aside."
The apex Court had also occasion to consider similar Rule 66 of Karnatak Mineral Mines Rules in (1996) 7 SCC 416 Alankar Granites Industries and others Vs. P.G. R. Scindia. Rule 3 of Karnatak Mining Mineral Concession Rules conferred power on the Department of Miner Mineral to grant query lease with prior approval of the Government. Rule 3A was introduced restricting grant of querying lease in respect of black granite. There was challenge to Rule 3A as amended from time to time. In High Court there was interim order. Because of pendency of the litigation the State Government found that there is no bar to act under Rule 3 until the validity or otherwise of Rule 3 is pronounced. 203 query leases were granted by the State Government. The said grant was challenged before the High Court which was sought to be supported by aid of Rule 66. The apex Court held that in the said case that Rule 66 could not have been pressed in service. Following was laid down by the apex Court in paragraphs 5 and 6:
"5. These grants were expressly made under Rule 3 by virtue of the Government Order dated 18.6.1991. However, an attempt was made in the High Court to support these grants on the basis of Rule 66 which confers on the Government the power of relaxation of Rules in special cases. The High Court has rejected the submission that these grants can be sustained on the basis of Rule 66.
6. The High Court has held that Rule 66 does not apply in the field covered by Rule 3A and since these leases could not be granted because of the prohibition contained in Rule 3A, the power of relaxation of the Rules conferred by Rule 66 is not available. In our opinion, in the present case even this further question does not arise. A plain reading of the Government Order dated 18.6.1991 leaves no doubt that it was the power only under Rule 3 which was exercised for making these grants and this conclusion was reached on the basis of legal opinion obtained by the Government for this purpose. There is a clear statement in the order that the Government had decided to resort to Rule 3 for the purpose of making these grants on applications which had been made expressly under Rule 3 of the 1969 Rules. In such circumstances, the belated attempt at the hearing of the matters in the High Court to support the grant under Rule 66 is clearly untenable when power was exercised only under Rule 3 without even a reference to Rule 66. It is difficult to accept the submission that Rule 66 is available to support these grants. Even otherwise Rule 66 requires the Government to form its opinion that public interest requires the grant of quarrying leases on such terms and conditions other than those prescribed in these rules, as the Government may, by order, specify. It is implicit in Rule 66 that such opinion of the Government must be formed after considering the question of making such a grant with reference to the facts and circumstances of each case and on reaching the conclusion that it was the requirement of public interest to authorise the grant of a quarry lease on such terms and conditions other than those prescribed in these rules as may be specified by the Government. This requirement precedes the making of the grant on the terms and conditions specified for the purpose and it cannot be subsequent to the grant for the purpose of justifying the grant without prior satisfaction to this effect leading to the relaxation of the rules. More-over, by its very nature, the power of relaxation is to be exercised separately in each individual case, which too has not been done in the case of these 203 leases. The Government order dated 18.6.1991 merely authorises grant of mining leases under Rule 3, notwithstanding the prohibition contained in Rule 3A and it is thereafter that the Director of Mines and Geology proceeded to consider the total of 2350 applications made under Rule 3 for making the grant in 203 cases only. The ultimate power of granting the quarry leases was exercised by the Director in each case and not by the Government in individual cases as is required by Rule 66. There is, thus, no basis to uphold the grant of any of these 203 quarry leases under Rule 66, particularly, when that rule was not even resorted to by the Government for making any of these grants."
In view of the ratio of the Division Bench judgments of this Court as noticed above and judgment of the apex Court in Alankar Granites (supra), we are of the view that State could not fall upon rule 68 to save the changed conditions which have been introduced by Government order dated 26.7.2012. None of the conditions for exercise of power under Rule 68 were present in the facts of the present case and the submission of Advocate General that State under Rule 68 could have relaxed any conditions as contained in Chapter IV of the Rules is wholly untenable and against the clear pronouncement of the Division Bench of this Court as noticed above. Thus, the State could not have changed the conditions of period of lease and earnest money by taking aid of Rule 68 of the Rules. It is relevant to note that in Deepak Kumar's case (supra), the apex Court had directed the State Government to amend its rule to incorporate the recommendation of Ministry of Forest and Environment. One of the recommendation was that period of lease should be made to five years. It is true that State while amending the rule can very well enhance the period of lease to five years but till the Rules are amended lease cannot be granted for a different period than the one which is statutorily provided in the Rules.
The judgment in present bunch of writ petitions was reserved on 13.12.2012 on which date learned Advocate General has stated that amendments in U.P. Minor Minerals (Concession) Rules, 1963 are under active consideration and the Rules are likely to be amended shortly. After judgment was reserved, learned Chief Standing Counsel brought into our notice that 1963 Rules have been amended by U.P. Minor Minerals (Concession) (Thirty-Fifth Amendment) Rules, 2012 which have been published in the official gazette on 23.12.2012. The Rule making authority has carried out amendments in various rules including Rule 12 and Rule 27-A. Rule 12 (1) has been substituted providing that a mining lease in respect of sand or morrum or bajari or bounder exclusively found in the riverbed shall not be granted for a period less than three years. Thus, the period of lease which according to earlier rules was only one year has now been statutory prescribed as three years. Rule 27-A has been amended by providing that amount of earnest money shall be 25% of the reserved price of the area for which E-tender is submitted. Under Rule 27-A now E-tendering has been statutorily prescribed. Rule 27-A (b), (d) are quoted below:
"(b) The District Officer may appoint any officer subordinate to him as Presiding Officer for conducting the E-tender proceedings.
(d) A bank draft of Rupees equal to twenty five percent of reserved price of the area for which E-tender is submitted in favour of the District Officer towards earnest money."
Rule 1 (2) of the amended Rules 2012 provide that "they shall come into force with effect from the date of their publication in the gazette". From the above it is clear that the conditions of period of lease and amount of earnest money which was earlier sought to be introduced by the Government order dated 26.7.2012 has now been incorporated in the statutory rules. The amendment in the Rules which have been enforced w.e.f. 23.12.2012 are not relevant with regard to process of E-tendering initiated by the District Magistrate while issuing tender notice in July, August 2012 after the Government order dated 31.5.2012, nor the amendment in Rules can cure the defects in the process which had been noticed above.
The next submission which has been advanced by Shri Dev Brat Mukerji, is that the State Government has no jurisdiction to issue any executive instruction in exercise of its power under Article 162 of the Constitution of India since the legislative power of the State is denuded by virtue of Act, 1957. He submits that the Government Order dated 31/5/2012, can neither be saved under Rule 68, nor it can be saved as an executive action of the State under Article 162 of the Constitution of India.
In 7th Schedule of the Constitution of India, Entry No.54 in list I is as follows:
"Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared By Parliament by law to be expedient in the public interest".
Entry 23 of List II of the 7th Schedule of the Constitution of India, vests the power in the State Legislature to enact law on the said subject. Entry 23 of List II is as under:
"Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union."
Thus while regulation of mines and mineral development is ordinarily a subject for State legislation, Parliament may, by law, declare the extent to which control of such regulation and development by the Union is expedient in the public interest and, to, that extent, it becomes a subject for Parliamentary legislation.
That the Parliament has accordingly enacted the Mines and Minerals (Regulation and Development) Act, 1957, hereinafter referred to as the MMRD Act, 1957 in short.
By Section 2 of the Act, 1957 a declaration is made that the Union should take under its control the regulation of mines and the development of minerals to the extent here-in-after provided. The legislative power of the State under Entry 23 of List II is subject to the provisions of List I. When the Parliament has already enacted the Act, 1957 legislative power of the State is denuded to that extent.
The Parliament had occasion to consider the Act, 1957, in the context of legislation by State of Orissa in State of Orissa Vs. M.A. Tulloch & Company, AIR 1964 SC 1284. Paragraphs 5 and 6 of the said judgment are quoted below:
"5. Before proceeding further it is necessary to specify briefly the legislative power on the relevant topic, for it is on the precise wording of the entries in the 7th Schedule to the Constitution and the scope, purpose and effect of the State and the Central legislations which we have referred to-earlier that the decision of the point turns. Article 246(1) reads:
"Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to-make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the 'Union List')"
and we are concerned in the present case with the State power in the State field. The relevant clause in that context is clause (3) of the Article which runs :
"Subject to clauses (1) and (2), the Legislature of any State......has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List 11 in the Seventh Schedule (in this Constitution referred to as the 'State List')."
Coming now to the Seventh Schedule, Entry 23 of the State List vests in the State legislature power to enact laws' on the subject of 'regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union'. It would be seen that "subject" to the provisions of List I the power of the State to enact Legislation on the topic of "mines and mineral development" is plenary. The relevant provision in List I is, as already noticed. Entry 54 of the Union List. It may be mentioned that this scheme of the distribution of legislative power between the Centre and the States is not new but is merely a continuation of the state of affairs which prevailed under the Government of India Act, 1935 which included a provision on the lines of Entry 54 of the Union List which then before the number item 36 of the Federal List and an entry corresponding to Entry 23 in the State List which bore the same number in the Provincial Legislative List. There is no controversy that the Central Act has been enacted by Parliament in exercise of the legislative power contained in Entry 54 or as regards the Central Act containing a declaration in terms of what is required by Entry 54 for it enacts by Section. 2:
"It is hereby declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided".
It does not need much argument to realise that to the extent to which the Union Government had taken under "its control" "the regulation and development of minerals" so much was withdrawn from the ambit of the power of the State Legislature under Entry 23 and legislation of the State which had rested on the existence of power under that entry would to the extent of that "control" be superseded or be rendered ineffective, for here we have a case not of mere repugnancy between the provisions of the two enactments but of a denudation or deprivation of State legislative power by the declaration which Parliament is empowered to make and has made.
6.It would, however, be apparent that the States would lose legislative competence only to the "extent to which regulation and development under the control of the Union has been declared by Parliament to be expedient in the Public interest." The crucial enquiry has therefore to be directed to ascertain this "extent" for beyond it the legislative power of the State remains unimpaired. As the legislation by the State is in the case before us the earlier one in point of time, it would be logical first to examine and analyse the State Act and determine its purpose, width and scope and the area of its operation and then consider to what " extent" the Central Act cuts into it or trenches on it."
The next case in which the issue of legislative competence of the State under Entry 23 of List II was examined was a case of Baijnath Kadio Vs. State of Bihar & Ors,1969(3) SCC 838. Following was laid down by the Apex Court in paragraphs 13,14 and 15.
"13.Although these supplementary arguments were raised it is obvious that they can arise according as the two main arguments are allowed or disallowed. Therefore it is necessary to address ourselves to the first argument that the legislative competence to enact the amendment was made after Act 67 of 1957 we have to consider the position in relation to it. Entry 54 of the Union List speaks both of regulation of mines and minerals development and Entry 23 is subject to entry 54. It is open to parliament to declare that it is expedient in the public interest that the control should rest in Central Government. To what extent such a declaration can go is for Parliament to determine and this must be commensurate with public interest. Once this declaration is made and the extent laid down, the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament. Any legislation by the State after such declaration and trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative competence of the State Legislature. This proposition is also self-evident that no attempt was rightly made to contradict it. There are also two decisions of this Court reported in the Hingir-Rampur Coal Co. Ltd. & Ors. v. State of Orissa and Ors., and State Orissa v.M. A. Tulloch & Co., in which the matter is discussed. The only dispute, therefore, can be to what extent the declaration by Parliament leaves any scope for legislation by the State Legislature. If the impugned legislation falls within the ambit of such scope it will be valid; if outside it, then it must be declared invalid.
14. The declaration is contained in Section 2 of Act 67 of 1957 and speaks of the taking under the control of the Central Government the regulation of mines and development of minerals to the extent provided in the Act itself.We have thus not to look outside Act 67 of 1957 to determine what is left within the competence of the State Legislature but have to work it out from the terms of that Act. In this connection we may notice what was decided in the two cases of this Court. In the Hingir-Rampur case (supra) a question had arisen whether the Act of 1948 so completely covered the field of conservation and development of minerals as to leave no room for State legislation. It was held that the declaration was effective even if the rules contemplated under the Act of 1948 had not been made. However, considering further whether a declaration made by a Dominion law could be regarded as a declaration by Parliament for the purpose of entry 54, it was held that it could not and there was thus a lacuna which the Adaptation of Laws Order, 1950 could not remove. Therefore, it was held that there was room for legislation by the State Legislature.
15.In the M. A.Tulloch case (supra) the firm was working a mining lease granted under the Act of 1948. The State Legislature of Orissa then passed the Orissa Mining Areas Development Fund Act, 1952, and levied a fee for the development of mining areas within the State. After the provisions came into force a demand was made for payment of fees due from July 1957 to March 1958 and the demand was challenged. The High Court held that after the coming into force of Act 67 of 1957 the Orissa Act must be held to be non-existent.It was held on appeal that since Act 67 of 1957 containedthe requisite declaration by Parliament under entry 54 and that Act covered, the same field as the Act of 1948 in regard to mines and mineral development, the ruling in Hingir Rampur's case applied and as Sections 18(1) and (2) of the Act 67 of 1957 were very wide they ruled out legislation by the State Legislature. Where a superior legislature evinced an intention to cover the whole field, the enactments of the other legislature whether passed before or after must be held to be overborne. It was laid down that inconsistency could be proved not by a detailed comparison of the provisions of the conflicting Acts but by the mere existence of two pieces of legislation. As Section 18 (1) covered the entire field, there was no scope for the argument that till rules were framed under that section, room was available."
In the present case, the State has not come up with the stand that the Government Order dated 31/5/2012, has been issued in exercise of executive power of the State under Article 162 of the Constitution. The State's stand throughout is that the Government Order dated 31/5/2012, is a declaration by the State under Rule 23 (1) of the Rules,1963. It is further submitted that the State has also exercised its power under Rule 68 of the Rules, 1963 in issuing the subsequent Government Order dated 26/7/2012. The State having not taken the stand that the Government Order dated 31/5/2012 has been issued in exercise of executive power, the issue raised by Shri Dev Brat Mukerji, does not arise.
Admittedly, the State Government under Section 15 of the Act, 1957 has framed the Rules, 1963 and the State has ample power under the Rules, 1963 to effectuate and give effect to various statutory rules. The power of the State Government exercised in this context by Rules, 1963 cannot be objected nor the instruction issued towards giving effect to the powers under the aforesaid Rules can be challenged. This can be explained by giving illustration. Rule 23 (1) of the Rules,1963 empowers the State to issue a general or special order declaring the area or areas which may be leased out by auction. When the State has been empowered to issue general or special order under Rule 23 of the Rules, 1963, it can very well issue an order in exercise of said power and the order issued under the said power need not flow from the executive power of the State under Article 162 of the Constitution, rather the power flows from the exercise of its jurisdiction under Rule 1963, itself.
The Government Order dated 31/5/2012, being not claimed to have been issued under Article 162 of the Constitution of India, there is no occasion to examine as to whether the same conforms to the requirement of Article 166 of the Constitution of India.
One of the submissions raised by Pushpila Bisht is that the "Imarti Patthar" or "Building Stone" is not covered by the Government Order dated 31/5/2012. In Writ Petition No.56827/2012, reference has been made to the Government Order dated 05/7/2012, by which a tender document has been annexed in paragraph 13 in which "Imarti Patthar" has been mentioned.
Petitioner's case in the writ petition is that the "Imarti Patthar" or the "Building Stone" is an "In situ rock deposit" which has been defined in Rule 2 (3-a) of the Rules, 1963. It is submitted that the Government Order dated 31/5/2012, uses the word "Boulder" which refers to large stones which are displaced from its place of origin and are found in the River Bed whereas the "Imarti Patthar" are "In situ rock deposit" and are not found in the river bed, hence they cannot be covered under the Government Order dated 31/5/2012.
Government Order dated 31/5/2012, uses the word "Boulder". However, the Government Order dated 31/5/2012, does not confine to the word "Boulder" which is found in the Riverbed. The word "Boulder" can be used for the minerals which is found in the Riverbed as well as the mineral which is found "In situ rock deposit". Petitioner's case in the writ petition is that since the word "Boulder" is found only in the Riverbed, the Government Order dated 31/5/2012, does not cover "Imarti Patthar" is misconceived since the Government Order dated 31/5/2012, does not confine the word "Boulder" to one which is found in the Riverbed. In this context a look of 1st Schedule and 2nd Schedule to the Rules, 1963 makes it clear that the word "Boulder" is included in the heading "Building Stone" as well as when found in mixed form in the Riverbed. Item No. 5 of the 1st Schedule and Item No. 4 of the 2nd Schedule, both uses the word "Boulder" as building stones as well as when found in mixed form in the Riverbed. Item No. 5 of the 1st Schedule and Item No. 4 of the 2nd Schedule of the Rules, 1963 are quoted below:
"FIRST SCHEDULE Minerals Rate of Royalty
1. 2.
1........
2........
3.........
4.........
5.Building Stone
(i) Sized dimensional stone including slabs and ashlar, (sandstone, quartzite)
(ii) Millstone and Hand Chakis (Sandstone, Quartzite)
(iii) Khandas and Boulders Rs. 180.00 per cubic metre Rs. 200.00 per cubic metre
(a)Rs.33.00 per cubic metre of Granite and Dolostone sized up to 25 cm. x 25 cm. x 25 cm.
(b)Rs.30.00 per cubic metre of sandstone and quartzite sized up to 25 cm. x 25 cm. x 25 cm.
SECOND SCHEDULE (See Rule 22) Name of Minor Mineral Name of Districts Rate of dead rent per acre per annum 1 2 3
1............
2............
3.............
4. Such Building Stone, Ballast, Bajri and ordinary Sand as are found in mixed form in the river bed Bijnor, Sharanpur, Bahraich, Lakhimpur Kheri and other districts, if any.
Boulder Rs. 8000.00 Bajri Rs. 8000.00 Ordinary Sand Rs.4,000.00. The separate rate will be charged on each minerals."
Thus the above argument of the learned counsel for the petitioners cannot be accepted.
The last issue raised by the learned counsel for the petitioner is that the non-compliance of the order of the Apex Court in Deepak Kumar's case (supra) by the State Government. The submission which has been pressed by the learned counsel for the petitioner is that when the Supreme Court directed the State Government to frame rules and to give effect to the recommendations of the Ministry of Environment and Forest, which were approved by the Supreme Court in its judgment, it was not open for the State Government to proceed with the grant of mining leases without complying with the directions of the Supreme Court. It is submitted that the judgment of the Supreme Court had highlighted Environmental and Ecological Degradation by the State Government while permitting to carry on mining operations. It shall be useful to refer to paragraphs 9,10,11,13 and 14 of the Deepak Kumar's case (supra) in which following was observed:
"9.Extraction of alluvial material from within or near a streambed has a direct impact on the stream's physical habitat characteristics. These characteristics include bed elevation, substrate composition and stability, in-stream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Altering these habitat characteristics can have deleterious impacts on both in-stream biota and the associated riparian habitat. The demand for sand continues to increase day by day as building and construction of new infrastructures and expansion of existing ones is continuous thereby placing immense pressure on the supply of the sand resource and hence mining activities are going on legally and illegally without any restrictions. Lack of proper planning and sand management cause disturbance of marine ecosystem and also upset the ability of natural marine processes to replenish the sand.
10. We are expressing our deep concern since we are faced with a situation where the auction notices dated 3.6.2011 and 8.8.2011 have permitted quarrying mining and removal of sand from in-stream and upstream of several rivers, which may have serious environmental impact on ephemeral, seasonal and perennial rivers and river beds and sand extraction may have an adverse effect on bio-diversity as well. Further it may also lead to bed degradation and sedimentation having a negative effect on the aquatic life. Rivers mentioned in the auction notices are on the foothills of the fragile Shivalik hills. Shivalik hills are the source of rivers like Ghaggar, Tangri, Markanda etc. River Ghaggar is a seasonal river which rises up in the outer Himalayas between Yamuna and Satluj and enters Haryana near Pinjore, District Panchkula, which passes through Ambala and Hissar and reaches Bikaner in Rajasthan. River Markanda is also a seasonal river like Ghaggar, which also originates from the lower Shivalik hills and enters Haryana near Ambala. During monsoon, this stream swells up into a raging torrent, notorious for its devastating power, as also, river Yamuna.
11. We find that it is without conducting any study on the possible environmental impact on/in the river beds and else- where the auction notices have been issued. We are of the considered view that when we are faced with a situation where extraction of alluvial material within or near a river bed has an impact on the rivers physical habitat characteristics, like river stability, flood risk, environmental degradation, loss of habitat, decline in biodiversity, it is not an answer to say that the extraction is in blocks of less than 5 hectares, separated by 1 kilometre, because their collective impact may be significant, hence the necessity of a proper environmental assessment plan.
13.Situations referred to earlier prevail not only in the State of Haryana but also in the neighbouring and other States of the country as well and those issues had come up for serious deliberations before the Government of India, on various occasions.
14. The Government of India was receiving various reports regarding the adverse impacts on riverbeds and groundwater due to quarrying/mining of minerals. The Mines and Minerals (Development & Regulation) Act 1957, empowers the State Governments to make rules in respect of minor minerals. It was noticed that proposals for mining of major minerals typically undergo environment impact assessment and environmental clearance procedure, but due attention has not been given to environmental aspects of mining of minor minerals. Environmental Impact Assessment Notification of 1994 did not apply to the mining of minor minerals, noticing that minor minerals were brought under the ambit of the Environmental Impact Assessment Notification of 2006 and as per the said notification mining of minerals with a lease area of 5 hectares and above require prior environmental clearance."
The Apex Court in the said case extracted the recommendations of the Environment and Forest. Paragraph 19 of the judgment quotes the recommendation of the Ministry of Environment and Forest which is as under:
"19.For an easy reference, we may extract the issues and recommendations made by the MoEF, which are as follows:
"4.0 Issues and recommendations 4.1 Definition of Minor Mineral:
The term 'minor mineral' is defined in clause (e) of Section 3 of MMDR Act, 1957 as:
'3(e) "minor minerals" means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes and any other material which the Central Government may, by Notification in the Gazette of India declare to be a minor mineral;' The term `ordinary sand' used in clause (e) of Section 3 of the MMDR Act, 1957 has been further clarified in rule 70 of the MCR, 1960 as:
'70.Sand not be treated as minor mineral when used for any of the following purpose.- Sand shall not be treated as a minor mineral when used for any of the following purposes, namely:
(i) purposes of refractory and manufacture of ceramic, (ii) metallurgical purposes,
(iii) optical purposes,
(iv) purposes of stowing in coal mines,
(v) for manufacture of silvicrete cement,
(vi) manufacture of sodium silicate and
(vii) for manufacture of pottery and glass.
Additionally, the Central Government has declared the following minerals as minor minerals: (i) boulder, (ii) shingle, (iii) chalcedony pebbles used for ball mill purposes only, (iv) limeshell, kankar and limestone used in kilns for manufacture of lime used as building material, (v) murrum, (vi) brick-earth, (vii) fuller's earth, (viii) bentonite, (ix) road metal, (x) reh-matti, (xi) slate and shale when used for building material, (xii) marble, (xiii) stone used for making household utensils, (xiv) quartzite and sandstone when used for purposes of building or for making road metal and household utensils, (xv) saltpetre and (xvi) ordinary earth (used or filling or levelling purposes in construction or embankments, roads, railways building).
It may thus be observed that minerals have been classified into major and minor minerals based on their end use rather than level of production, level of mechanization, export and import etc. There do exist some minor mineral mines of silica sand and limestone where the scale of mechanization and level of production is much higher than those of industrial mineral mines. Further, in terms of the economic cost and revenue, it has been estimated that the total value of minor minerals constitutes about 10% of the total value of mineral production whereas the value of non metallic minerals comprises only 3%. It is, therefore, evident that the operation of mines of minor minerals need to be subject to some regulatory parameters as that of mines of major minerals.
Further, unlike India there does not exist any such system based on end usage in other countries for classifying minerals into major and minor categories. Thus, there is a need to re-look at the definition of 'miner minerals' per se.
It is, therefore, recommended that Ministry of Mines along with Indian Bureau of Mines, in consultation with the State Governments may re-examine the classification of minerals into major and minor categories so that the regulatory aspects and environment mitigation measures are appropriately integrated for ensuring sustainable and scientific mining with least impacts on environment.
4.2 Size of the Mine Lease:
Area for grant of mine lease varies from State to State. Maximum area which can be held under one or more mine lease is 2590 ha or 25.90 sq.miles in Jammu and Kashmir. Rajasthan prescribed a minimum limit of 1 ha for a lease. Maximum area prescribed for permit is 50x50 m. In most of the States area of permit is not specified in the rules. It has recently been observed by Punjab and Haryana High Court in its order dated 15.5.2009 that State Government are apparently granting short term permits by dividing the mining area into small zones in effect avoids environmental norms.
There is, thus a need to bring uniformity in the extent of area to be granted for mine lease so as to ensure that eco- friendly scientific mining practices can be adopted. It is recommended that the minimum size of mine lease should be 5 ha. Further, preparation of comprehensive mine plan for contiguous stretches of mineral deposits by the respective State Governments may also be encouraged. This may suitably be incorporated in the Mineral Concession Rules, 1960 by Ministry of Mines.
4.3 Period of Mine Lease:
The period of lease varies from State to State depending on type of concessions, minerals and its end use. The minimum lease period is one year and maximum 30 years. Minerals like granite where huge investments are required, a period of 20 years is generally given with the provisions of renewal. Permits are generally granting for short periods which vary from one month to a maximum one year. In States like Haryana, minor mineral leases are auctioned for a particular time period. Mining is considered to be capital intensive industry and considerable time is lost for developing the mine before it attains the status of fully developed mine. If the tenure of the mine lease is short, it would encourage the lessee to concentrate more on rapid exploitation of mineral without really undertaking adequate measures for reclamation and rehabilitation of mined out area, posing thereby a serious threat to the environment and health of the workers and public at large.
There is thus, a need to bring uniformity in the period of lease. It is recommended that a minimum period of mine lease should be 5 years, so that eco friendly scientific and sustainable mining practices are adopted. However, under exceptional circumstances arising due to judicial interventions, short term mining leases / contracts could be granted to the State Agencies to meet the situation arising there from.
4.4 Cluster of Mine Approach for Small Sized Mines:
Considering the nature of occurrence of minor mineral, economic condition of the lessee and the likely difficulties to be faced by Regulatory Authorities in monitoring the environmental impacts and implementation of necessary mitigation measures, it may be desirable to adopt cluster approach in case of smaller mine leases being operated presently. Further, these clusters need be provided with processing/crusher zones for forward integration and minimizing excessive pressure on road infrastructure. The respective State Governments / Mine Owners Associations may facilitate implementation of Environment Management Plans in such cluster of mines.
4.5 Requirement of Mine Plan for Minor Minerals:
At present, most of the State Governments have not made it mandatory for preparation of mining plan in respect of minor minerals. In some States like Rajasthan, eco friendly mining plans are prepared, which are approved by the State Mining Department. The eco friendly mining plans so prepared, though conceptually welcome, are observed to be deficient and need to be made comprehensive in a manner as is being done for major minerals. Besides, the aspects of reclamation and rehabilitation of mined out areas, progressive mine closure plan, as in vogue for major minerals could be introduced for minor minerals as well.
It is recommended that provision for preparation and approval of mine plan, as in the case of major minerals may appropriately be provided in the Rules governing the mining of minor minerals by the respective State Governments. These should specifically include the provision for reclamation and rehabilitation of mined out area, progressive mine closure plan and post mine land use.
4.6 Creation of Separate Corpus for Reclamation / Rehabilitation of Mines of Minor Minerals:
Mining of minor minerals, in our country, is by and large unorganized sector and is practiced in haphazard and unscientific manner. At times, the size of the leasehold is also too small to address the issue of reclamation and rehabilitation of mined outs areas. It may, therefore, be desirable that before the concept of mine closure plan for minor minerals is adopted, the existing abandoned mines may be reclaimed and rehabilitated with the involvement of the State Government. There is thus, a need to create a separate corpus, which may be utilized for reclamation and rehabilitation of mined out areas. The respective State Governments may work out a suitable mechanism for creation of such corpus on the `polluter pays' principle. An organizational structure may also need to be created for undertaking and monitoring these activities.
4.7 Depth of Mining:
Mining of minerals, whether major or minor have a direct bearing on the hydrological regime of the area. Besides, affecting the availability of water as a resource, it also affects the quality of water through direct run of going into the surface water bodies and infiltration / leaching into groundwater. Further, groundwater withdrawal, dewatering of water from mine pit and diversion of surface water may cause surface and sub surface hydrologic systems to dry up. An ideal situation would require that quarrying should be restricted to unsaturated zone only above the phreatic water table and should not intersect the groundwater table at any point of time. However, from the point of view of mineral conservation, it may not be desirable to impose blanket ban on mining operation below groundwater table.
It is, therefore, recommended that detailed hydro-geological report should be prepared in respect of any mining operation for minor minerals to be undertaken below groundwater table. Based on the findings of the study so undertaken and the comments/ recommendations of Central Ground Water Authority/ State Ground Water Board, a decision regarding restriction on depth of mining for any area should be taken on case to case basis.
4.8 Uniform Minor Mineral Concession Rules:
The economic value of the minor minerals excavated in the country is estimated to contribute to about 9% of the total value of the minerals whereas the non metallic minerals contribute to about 2.8%. Keeping in view the large extent of mining of minor minerals and its significant potential to adversely affect the environment, it is recommended that Model Mineral Concession rules may be framed for minor minerals as well and the minor minerals may be subjected to a simpler regulatory regime, which is, however, similar to major minerals regime.
4.9 River Bed Mining:
4.9.1 Environment damage being caused by unregulated river bed mining of sand, bazari and boulders is attracting considerable attention including in the courts. The following recommendations are therefore made for the river bed mining.
(a)In the case of mining leases for riverbed sand mining, specific river stretches should be identified and mining permits/lease should be granted stretch wise, so that the requisite safeguard measures are duly implemented and are effectively monitored by the respective Regulatory Authorities.
(b)The depth of mining may be restricted to 3m/water level, whichever is less.
(c) For carrying out mining in proximity to any bridge and/or embankment, appropriate safety zone should be worked out on case to case basis, taking into account the structural parameters, locational aspects, flow rate etc. and no mining should be carried out in the safety zone so worked out.
5.0 Conclusion:
Mining of minor minerals, though individually, because of smaller size of mine leases is perceived to have lesser impact as compared to mining of major minerals. However, the activity as a whole is seen to have significant adverse impacts on environment. It is, therefore, necessary that the mining of minor minerals is subjected to simpler but strict regulatory regime and carried out only under an approved framework of mining plan, which should provide for reclamation and rehabilitation of the mined out areas. Further, while granting mining leases by the respective State Governments "location of any eco-fragile zone(s) within the impact zone of the proposed mining area, the linked Rules/Notifications governing such zones and the judicial pronouncements, if any, need be duly noted. The Union Ministry of Mines along with Indian Bureau of Mines and respective State Governments should therefore make necessary provisions in this regard under the Mines and Minerals (Development and Regulation) Act, 1957, Mineral Concession Rules, 1960 and adopt model guidelines to be followed by all States. (emphasis supplied)"
The Apex Court in Deepak Kumar's case (supra) also noticed that the Minister for (Environment and Forests) wrote a DO letter dated 01/6/2010 to all the Chief Ministers of the State to examine the Report and to issue necessary instructions for incorporating the recommendations made in the report in the Mineral Concession Rules for mining of minor minerals under Section 15 of the MMDR Act, 1957. The Ministry of Mines, Government of India prepared a draft rules namely: Minor Minerals Conservation and Development Rules, 2010, which were also put on the website. The Apex Court in the said judgment issued directions in paragraph 27 to all the States to give effect to the recommendations made by the Ministry of Environment and Forest in its report of March, 2010. Following are the directions which were issued in paragraph 27:
"27.The State of Haryana and various other States have not so far implemented the above recommendations of the MoEF or the guidelines issued by the Ministry of Mines before issuing auction notices granting short term permits by way of auction of minor mineral boulders, gravel, sand etc., in the river beds and elsewhere of less than 5 hectares. We, therefore, direct to all the States, Union Territories, MoEF and the Ministry of Mines to give effect to the recommendations made by MoEF in its report of March 2010 and the model guidelines framed by the Ministry of Mines, within a period of six months from today and submit their compliance reports."
Minerals resource constitute nations natural wealth. The directive principles of the State policy, Article 39 of the Constitution of India enjoins the State to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common goods. Article 39 sub-clause (b) is quoted below:
"Art.39. The State shall, in particular, direct its policy towards securing-
(a)...........
(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common goods."
One of the fundamental duties of every citizen as enshrined under Article 51-A sub-clause (g) is to protect and improve the natural environment including forest, lakes, rivers and wildlife, and to have compassion for living creatures. Article 51-A sub-clause (g) is quoted below:
"Art.51A.It shall be the duty of every citizen of India-
(a).....
(b).....
(c)......
(d)....
(e)....
(f).....
(g) to protect and improve the natural environment including forest, lakes, rivers and wildlife, ad to have compassion for living creatures."
The Apex Court in State of Tamil Nadu Vs. M/s Hind Stone & Ors, (1981) 2 SCC 205, had sounded a caution that every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. Following observations were made in paragraph 6 of the said judgment which is quoted below:
"6. Rivers, forests, Minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation. It is recognised by Parliament."
A perusal of the directions of the Apex Court in Deepak Kumar's case (supra) as quoted above in paragraphs 19 and 27 indicates that several measures have been recommended by the Ministry of Environment and Forest and Ministry of Mines regarding the manner in which the minerals and concessions have to be given by the State Government and requirement of mining plan for minor minerals have also been highlighted and detail recommendation regarding Riverbed mining have been made. The State was required to act in accordance with the directions of the Supreme Court which directions were to improve the Environmental, Ecological Degradation and River hydrology. It was incumbent on the State to have acted with expedition to comply with the directions which were to subserve the common goods. When the Supreme Court had directed implementation of the recommendation within six months, it was the outer limit fixed, the State should have acted with urgency and expedition to implement the directions which was not done by the State of U.P. It is submitted that in case a person who has been approved for granting mining lease fails to obtain environmental clearance within a period of six months, the order granting lease shall stand cancelled is arbitrary and unjustifiable since for environmental clearance more than six months time is statutorily provided and further a person applying for environmental clearance has no control on the authorities who are entrusted to grant environmental clearance. Such condition is unjust and shall cause great prejudice to a person who has been granted lease after completion of all formalities.
Shri S.P. Gupta, learned Advocate General submitted that the State Government is taking steps and is in process of the amendment of the rules, as per the direction of the Supreme Court in Deepak Kumar's case (supra), but till date when the hearing in this writ petitions were concluded, the amended rules were not brought before the court. In these writ petitions, we have passed an interim order permitting the process of E-tendering to proceed in pursuance of the various tender notices, but the finalization of the grant was stayed. The action of the State Government and the District Magistrate which consequently allowed all the District Magistrates to proceed by issuing tender notice cannot be said to be in accordance with the spirit and the direction of the Supreme Court in Deepak Kumar's case (supra). When the directions were issued by the Apex Court which were to subserve the common goods and were to benefit all nature, environment and natural resources there should not have been any hurry to proceed with the settlement in the name of earning revenue.
Shri S.P. Gupta, learned Advocate General submitted that non-settlement of mining rights leads to illegal mining. Illegal mining is a menace which has to be controlled by the State by its machinery and in the name of stopping of illegal mining, the State could not have rushed through the entire process in blatant disregard of the directions of the Supreme Court issued on 27/2/2012 in Deepak Kumar's case (supra) as observed above.
We are of the considered opinion that the State should have proceed with actual grant of mining leases under Chapter IV of the Rules, 1963 as was declared by Government Order dated 31/5/2012, after implementing the directions given by the Supreme Court on 27/2/2012 in Deepak Kumar's case (supra).
We, thus find substance in the submissions of the learned counsel for the petitioners that the State proceeded to grant mining leases in disregard to the directions issued by the Supreme Court on 27/2/2012 in Deepak Kumar's case (supra) which cannot be sustained.
As noted above, Rules have been amended by 35th Amendment Rules 2012 w.e.f. 23.12.2012. Amendment in different rules have been effected by 35th Amendment Rules including the period of lease. Rule 34 regarding mining operations and in Rule 41 which contain restrictions and conditions as to exercise of the liberties, power and privilege of lease. The rules having been amended subsequent to the date when judgment was reserved in the present case, it is not necessary for us to express any opinion with regard to 35th Amendment except the factum of noticing the amendment.
Now, after considering the various issues raised in these bunch of writ petitions, we have to consider as to what reliefs the petitioners are entitled.
From the discussions made above, it is clear that those petitioners who have claimed mandamus for directing consideration of their lease renewal application which were pending on 31/5/2012, cannot be granted any relief similarly applications for grant of fresh lease under Chapter II of the Rules, 1963 which were pending on 31/5/2012 cannot also be directed to be considered. We have already held that the Government Order dated 31/5/2012, is a valid declaration within the meaning of Rule 23 (1) of the Rules, 1963 declaring vacant area in the State for being settled under Chapter IV of the Rules, 1963. We have further held that the change of conditions for grant of lease under Chapter IV of the Rules, 1963, by Government Order dated 26/7/2012, are clearly contrary to the statutory rules and are unsustainable and the change of conditions cannot be justified by the State by taking aid of Rule 68 of the Rules, 1963. Although, we do not find any error in the Government Order dated 31/5/2012, but subsequent change of conditions specially incorporating the condition of submitting the earnest money to the extent of 25 percent of the reserved price has adversely affected large number of intending bidders, who due to above conditions could not have submitted their application, the entire process after changed conditions was vitiated and cannot be sustained.
We are thus of the considered view that the tender notices issued for grant of mining leases in compliance of the Government Order dated 31/5/2012, cannot be allowed to proceed further and has to be set-aside with liberty to the respondents to take fresh steps for grant of mining right under Chapter IV of the Rules, 1963 as per the declaration dated 31/5/2012.
In the result, all the writ petitions are disposed with the following directions:
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.
4)Parties shall bear their own costs.
Order date: 29.1.2013 LA/SB