Allahabad High Court
Raj Kumar Chaudhary vs State Of U.P. & Others on 15 March, 2012
Bench: Sunil Ambwani, Pankaj Naqvi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 37 Case :- WRIT - C No. - 7433 of 2008 Petitioner :- Raj Kumar Chaudhary Respondent :- State Of U.P. & Others Petitioner Counsel :- Dev Brat Mukherjee,Om Prakash Singh Respondent Counsel :- C.S.C. Hon'ble Sunil Ambwani,J.
Hon'ble Pankaj Naqvi,J.
1. We have heard Sri Dev Brat Mukherjee, learned counsel for the petitioner. Learned standing counsel appears for the State respondents.
2. The petitioner is aggrieved by order of the State Government by which it has rejected the petitioner's application for renewal of mining lease of sand (minor mineral) in respect of plot No. 1910 M, area 10 acres in Lot No. II. The area was allotted to the petitioner, and mining lease was executed in 2001. The lease period came to an end in the year 2003, on which applications were invited. The petitioner claimed for renewal under Rule 6-A of the U.P. Minor Minerals (Concession) Rules 1963, and alleges that since he has not breached any of the conditions or provisions of lease, he was entitled for renewal of the lease in accordance with law.
3. It is submitted that petitioner' application was forwarded by the District Magistrate, with his recommendation dated 31.1.2007, to the State Government. The State Government had earlier approved the renewal but that on account of elections to the State Legislative Assembly, and change of Government of the State, the opinion in renewal of mining lease was changed. The State Government is now of the opinion that since the petitioner was granted lease in the year 2001, in pursuance to the preferential rights given to him, as he belongs to 'Mallah' caste, under Rule 9-A, and which preferential rights to the complete exclusion of persons belonging to other castes have been declared as ultra vires by Full Bench of the Court in Ram Chandra Vs. State of U.P. and another (in writ petition No. 256 (M/B) of 1997, decided on 27.03.2001), and Rule 9-A has since been deleted from the Statute, the renewal of lease in favour of the petitioner cannot be considered.
4. The District Magistrate, rejected the application for renewal of mining lease, on which the petitioner approached the Court in Writ Petition No. 76980 of 2005. The writ petition was disposed of on 20.12.2005, with the directions to the petitioner, to avail alternative remedy. The Commissioner, Vindhyachal Region, Mirzapur by his order dated 16.06.2006, allowed the appeal, and while setting aside the order of the Licensing Authority dated 25.10.2005, by which the petitioner's application was rejected, directed the District Magistrate, Sonbhadra/Licensing Authority, to decide the application of the petitioner, afresh in accordance with law. The Commissioner found that from the records, it is confirmed that for the subject mining lease in the year 2001, the petitioner was the only applicant. His application for renewal was wrongly rejected, treating him to have availed preferential rights under Rule 9-A.
5. The District Magistrate, in the fresh proceedings again reiterated that the petitioner has availed preferential rights under Rule 9-A when the notification was made on 19.1.2001, prior to deletion of Rule 9-A. Even if the lease deed was executed, after deletion of Rule 9-A, since the petitioner was considered for grant of lease under the preferential right provided under Rule 9-A, there is no justification for renewal of the lease, in his favour, after the law has changed and preference cannot be claimed, unless all other things are equal to the other claimants.
6. Learned counsel for the petitioner submits that the petitioner was the only applicant in the year 2001. He did not avail the benefit of preferential rights, which according to him has been explained by the Supreme Court in para 10 of the decision in Secretary, A.P. Public Service Commission Vs. Y.V.V.R. Srinivasulu and others [2003 (5) SCC 341]. He submits that there was no other applications from the persons of unreserved category, general category or preferential caste. Since the petitioner was the only person, and by the time the lease deed was executed, the Rule 9-A was struck down, the presumption that he was given preferential right, is wholly uncalled for. Even if there was preference applicable under the Rule, since the petitioner was the only preferential person, who had applied for lease, it could not be said that he was given the benefit of Rule 9-A.
7. Learned counsel for the petitioner further submits that the same matter was taken by him upto the appellate stage, and the order of the Commissioner, by which it was held that the petitioner was not given preference under Rule 9-A has become final. He further submits that the State Government has not given any reason, in rejecting the petitioner's application for renewal. It has relied upon the order of the District Magistrate, who cannot override the reasons given by the Commissioner in allowing the appeal. Lastly, it is submitted that the petitioner has completed all the formalities of renewal, and had deposited the lease amount. The State Government acted illegally and arbitrarily in rejecting the application for renewal. The State Government was the only approving authority. The petitioner having satisfied with all the conditions, and that the Commissioner, has passed an order in favour of the petitioner, the State Government could not have disapproved the renewal of the lease.
8. Learned standing counsel, on the other hand, submits that in the facts and circumstances of the case, at the time when the petitioner had applied, in pursuance to the advertisement, on the strength of Rule 9-A, no one from general category could have applied. The preferential right was found to be arbitrary and violative of rights of equality, and was declared to be discriminatory by the Full Bench. The Full Bench had observed in the judgement that, on the applicability of Rule 9-A, no person from general category could have applied for grant of lease. He submits that the same question was considered by two Division Benches of the Court in Gopal Prasad Gupta Vs. State of U.P. and others in writ petition No. 3501 of 2004, decided on 15.02.2006; and in Rajan Nishad and another Vs. State of U.P. and others [2006 (2) AWC 1950]. He has also relied upon paragraphs 7 and 8 of the judgement in Rajan Nishad (Supra), quoted as follows:-
"7. Learned counsel for the petitioners submitted that each of the petitioners were the sole applicant in respect of the plots applied for by them and, therefore, the question of claiming any preference under Rule 9-A of the Rules did not arise. According to him, the question of preference is applicable only when there are more than one application for the same plot and as the petitioners were the sole applicant, the District Magistrate, Allahabad had erred in law in treating the sanction of the lease granted on 31.3.2001 to be under Rule 9-A of the Rules. According to the learned counsel for the petitioners, the lease is to be settled afresh in accordance with the provisions of Chapter II of the Rules, which was the case at the time of settlement made in favour of the petitioners. Thus, the petitioners are entitled for execution of the formal lease deed and the permission to carry out the excavation work in terms of the said lease for a period of three years from the date of execution of the lease deed. Sri Mukherjee further submitted that the direction given by the District Magistrate, Allahabad to include the plots in question for publication under Rule 72 of the Rules is wholly illegal, null and void inasmuch as the said plots are neither vacant nor available for being settled afresh. According to him, the petitioners cannot be made to suffer for no fault of theirs. In support of his various pleas, he has relied upon the following decisions:-
(i) Beg Raj Singh v. State of U.P. and others, (2003) 1 SCC 726; and
(ii) Vijay Kumar Nishad v. State of U.P. and others, Civil Misc. Writ Petition No.12578 of 2005, decided on 10.3.2005.
8. The learned Standing Counsel submitted that pursuant to the Government Order dated 30.12.2000, the District Magistrate, Allahabad had issued a public notice on 20.2.2001 inviting applications from the public at large for settling the vacant mining area relating to sand in the district of Allahabad under Chapter II of the Rules. Rule 9-A of the Rules provided for grant of preferential right to certain person in respect of sand. The validity of Rule 9-A was challenged by various aggrieved persons and the challenge was upheld by the Full Bench of this Court in the case of Ram Chandra (supra). Rule 9-A was declared ultra vires and void by the Full Bench of this Court on 27.3.2001. All the petitioners had mentioned the caste to which they belong, namely Mallah (boatman) in their application forms and had also attached the caste certificate in the prescribed form issued by the authority concerned. Clause (b) of sub-rule (1) of Rule 9-A specifically provides for obtaining a certificate in form MM 14 from the district officer concerned or such other officer authorised in this regard by the State Government certifying that such person/persons is/are traditionally engaged in excavation of sand/morrum for their livelihood and who are the residents of the district for which the application for mining lease has been given. According to him, all the petitioners enclosed the caste certificate in the prescribed pro forma and have also mentioned this fact in their application form. Thus, they had, in fact, claimed preferential right as available to them under Rule 9-A of the Rules. The sanction for grant of lease made by the District Magistrate on 31.3.2001 was with respect to the preference given/claimed in Rule 9-A and it is not correct to say that the petitioners have not claimed any preferential right. According to him, in view of the preference given in Rule 9-A, the general public did not make any application and as Rule 9-A has been declared ultra vires by the Full Bench of this Court in the case of Ram Chandra (supra), the authorities were fully justified in not executing the formal lease deed. He further submitted that in the Special Leave Petition filed by the State of U.P. before the Apex Court, the Apex Court had granted an order on 10.9.2001 to maintain status quo. As the lease deed had not been executed in favour of the petitioners, there was no question of executing the lease deed after Rule 9-A had been declared ultra vires. He further submitted that the State Government withdrew the Special leave Petition and decided to settle the mining right under Chapter IV of the Rules which provided for settling of mining lease by auction/tender/auction-cum-tender basis. This was done by the Government Order dated 2.11.2002 issued by the Government of Uttar Pradesh. The petitioners kept silent and did not challenge the switching over of the manner of settling the mining rights from Chapter II to IV as they were not at all aggrieved by the said change over. The State Government again reverted to settling of mining right under Chapter II vide Government Order dated 16.10.2004. It is not clear from the record of the writ petitions as to when the petitioners woke up from their slumber. However, when they came to know that the plots for which the mining rights had been sanctioned, are again going to be placed in the list of vacant plots for settling of mining rights afresh, they woke up and insisted upon the authorities for execution of the formal mining lease deed and for grant of permission to excavate sand in their respective plots. The request has been turned down by the District Magistrate, Allahabad vide order dated 23.11.2005 on the ground that Rule 9-A under which the sanction of the lease had been given, had been declared ultra vires by this Court in the case of Ram Chandra (supra). If the lease deed would have been executed on that date, the period of three years would have come to an end on 30.3.2004 for which no effort was made by the petitioners causing loss to the State Government. After the sanction of the lease on 31.3.2001, the State Government, vide Government Order dated 2.11.2002 had switched over to auction system and, thereafter, vide Government Order dated 16.10.2004 it had been again reverted to Chapter II for which steps are being taken. On these grounds, the District Magistrate came to the conclusion that the auction on the basis of preference granted under Rule 9-A cannot be taken. He accordingly cancelled the sanction granted on 31.3.2001 .
9. We have considered respective submissions, and do not find any weight in the arguments of the learned counsel for the petitioner that mining lease was not settled on the basis of Rule 9-A. It is not denied that the petitioner belongs to Mallah caste, which had the preference, at the relevant time, when the notification was made and the petitioner was allotted area for execution of the lease in his favour. The reasoning given in two Division Benches decisions in Gopal Prasad Gupta (Supra) and Rajan Nishad (Supra), that at the relevant time, when the applicability of Rule 9-A was in force, which give preference to particular caste, who was traditionally engaged in excavation of sand for their livelihood, there was no opportunity for any other person, who did belong to preferential caste to apply for grant of mining lease in that category because their applications were liable to be rejected under Rule 9-A. Nobody from the general and other category applied for grant of mining lease at the relevant time, which was reserved for a certain class of persons and thus the petitioner's application, as a person of preferential category, was allowed.
10. Learned counsel for the petitioner submits that the petitioner is claiming right for renewal of lease under Rule 6-A, which provides as follows:-
" 6-A Application fee etc., for renewal of mining lease:- (1) An application for renewal of mining lease may be made atleast six months before the date of expiry of the mining lease along with four copies of the map of lease hold area showing clearly he area applied for renewal and the provision of clause (a) and (d) of sub-rule (1) of Rule 6 shall mutatis mutandis apply.
(2) The State Government may condone the delay caused in making the application for renewal of mining lease after the period specified in sub-rule (1)."
11. The petitioner's right for renewal of lease under Rule 6-A could be considered under the subsisting rule, if the category, in which he had applied, was still allowed the exclusive right, for the purpose of fresh grant. He cannot claim grant of renewal, if he had taken benefit of any preference, which was no longer available at the time of renewal.
12. Since the petitioner has taken the benefit of preference, as no person of other category could apply at the relevant time when he was granted lease and the Rule of granting preference to certain class has been struck off by the Full Bench as ultra vires, the petitioner cannot claim any right for grant of renewal of licence. The principle that a person may have spent some amount for the purposes of development of area is no longer available inasmuch as it has been held by the Supreme Court in Centre for Public Interest Litigation and Others Vs. Union of India and others [Writ Petition No. (Civil) No. 423 of 2010, decided 2.2.2011) that State largesse are not to be confined to a few person, and certainly not on the rule of 'first-cum-first serve'. The right to be granted State largesse on the principle of 'first-cum-first serve' is an arbitrary exercise of powers. The State resources should be allowed to be exploited subject to environmental concerns by all those persons who are eligible in an open competition and that there should be open invitation of offer by competitive bidding for the amount to be paid to the State Government for prospecting the area. The Supreme Court observed that "every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner".
13. For the aforesaid reasons, we do not find that the State Government has acted arbitrary, or in violation of statutory rule of renewal in refusing approval on the recommendation of the District Magistrate, for renewal of the lease.
14. The writ petition is dismissed.
Order Date :- 15.3.2012 nethra