Achchey Lal vs District Officer/Collector

M.L. Singhal, J.—This is a writ petition filed under Article 226 of the Constitution of India for quashing the notice dated 3.4.1997 (Annexure ''1'' to the writ petition), issued by the Respondent District Officer/Collector, Mau inviting applications for grant of lease for excavation of sand under the provisions of U.P. Minor Minerals (Concession) Rules, 1963 (hereinafter, for brevity, referred to as Rules, 1963 only).

The Respondent District Officer/Collector, Mau by impugned notice dated 3.4.1997 invited applications for granting mining lease of the sand under Chapter IInd of 1963, Rules. The Petitioner a ''Mallah'' by caste claiming preferential right in respect of the grant of lease under Rule 9A of the 1963 Rules has two fold grievances against the said notice. Firstly, in the said notice Khasra No. of the mining area has not been spelled out as required under Statutory Form MM-1, which is submitted under Rule 5 of 1963 Rules for grant of mining lease. The area for which lease is to be granted not being well defined in the notice, it will not be possible for the Petitioner or any other person to file a proper application for the grant of lease, according to the rules contained in.... Chapter IInd of Rules, 1963 and the application being defective will ultimately entail in its rejection. Another serious consequences would be that it will not be possible for the Respondent to determine the priority amongst the applicants. The Respondent has also not issued any guideline to the prospective leases so as to enable the Petitioner to ascertain the area. The Petitioner will also not be able to file four copies of the cadastral survey map as required by Rule 6(c) of the 1963 Rules. Secondly, in the impugned notice lot No. 4 is for 300 acres, which contravenes statutory limit of 30 acres fixed in Rule 10 by the Legislature in Rules, 1963. The State Government by Twentieth Amendment has inserted Rule 9A and Rule 53A by which preferential rights have been given to persons of certain castes/class who are socially and educationally backward and are actually engaged in mining operations. By forming lot of land exceeding 30 acres, the applicants who are socially and educationally backward, will not be able to deposit 25% of the total amount of lease immediately, required under Rule 14 (3), frustrating the purpose of Twentieth Amendment. The impugned notice also does not disclose that in the interest of mineral development, the areas were being increased from 30 acres. On the aforesaid two grounds, the Petitioner has prayed for quashing the aforesaid impugned notice.

A counter-affidavit has been filed on behalf of the Respondent District Officers/Collector, Mau. On behalf of the Respondent, it has been contended that the impugned notice is in accordance with the Rules, 1963. Rule 6 of the Rules 1963 speaks of two types of map-cadastral map and topographical map. The Mines Officer, Area Office, Gorakhpur through his letter dated 23rd March, 1995 (vide Annexure ''C.A. '') had informed the Respondent that in case of topographical map, it was not necessary to mention the khasra No. in the notice. By the impugned notice, applications have been invited for grant of mining lease under topographical map and so khasra No. was not required to be spelled out in the notice. It is true that under Rule 10 the limit of 30 acres had been fixed by the Legislature but by the Government Order dated 8.9.1995 (vide Annexure ''C.A. 2''), the said limit has been raised upto 50 acres. Further, Clause (3) of the said Government Order only fixed the outer limit of the area, the Respondent is not prohibited from granting mining lease beyond 50 acres. The lot mentioned in the notice has been prepared by the Mines Officer, Area Office, Gorakhpur. By notification dated 29.5.1985 issued by the State Government (vide Annexure C. A. 3), power has been delegated to the District Officer/Collector to grant lease in excess of the statutory limit prescribed in Rule 10. The lot No. 4 of 300 acres assailed in the writ petition was prepared after taking into consideration the problems and other conditions of the area. Even the wife of the Petitioner has filed application for allotment of the disputed lot. The dispute in the instant writ petition relates to allotment of mining lease in river bank, the provisions of Rule 11 are not applicable in the case.

We have heard the learned Counsel for the Petitioner Shri Mukesh Prasad and learned standing counsel for the State and have gone through the record.

As regards the first grievance that the impugned notice does not contain the khasra No. of the mining areas, a perusal of the impugned notice (Annexure ''1'') shows that No. of the lots, the area of the lot and sufficient details of the said lots, have been given. Since the applications have been invited for grant of mining lease under topographical map, mention of the khasra No. is not necessary, as also written by the Mines Officer, Area Office, Gorakhpur to the Respondent No. 23.3.1995 (vide Annexure ''C.A. 1''). The learned Counsel for the Petitioner placed reliance upon a Division Bench decision of this Court in Kamlesh Nishad Vs. District Officer/District Magistrate, Hamirpur and another, . In the said case, the area for which the applications were invited was also not specified in the notice nor the guidelines were given to the applicants to collect the details in respect of such area, the notice was considered vague and quashed. However, a perusal of the Paras 17, 18, 19, 20, 21 and 22 of the judgment of the Division Bench shows that the defence taken on behalf of the Respondent was different. In that case, it was conceded on behalf of the State Government by the learned Additional Advocate General that lease eventually was to be granted for smaller areas than the areas specified in the impugned notice. Here in the present case, no such statement has been made by the learned standing counsel on behalf of the Respondent. On the other hand, the defence raised is that the upper limit of 30 acres fixed in Rule 10 of Rules, 1963 has been relaxed initially under the proviso to Rule 10 and later on under Rule 68 of the Rules, 1963 by the State Government. Here it is not the case that eventually the lease would be granted for smaller areas than the area of the lots specified in the impugned notice. So when the lease has to be granted in respect of the whole lot, further identification of the lot by the applicants is not required. The details regarding the identity of the lot in the impugned notice are sufficient. The priority under Rules 9 and 9A of the Rules can be determined among the applicants for the grant of lease. So the facts and contentions raised in Kamlesh Nishad''s case (supra) being different, the decision in that case does not help the Petitioner. It is true that in the Statutory Form MM-1 of the application for grant of lease, there is a column for mention of khasra No. and in Rule 6(c) of the Rules, 1963, there is a requirement for filing of a cadastral map, but the said Rule 6 (c) provides that in case the area is not covered by cadastral survey, copies of the topographical survey map are to be filed with the application for grant of mining lease. Further, in Para 14 of the counter-affidavit, the Respondent has also alleged that in the instant case, the office of the Respondent is issuing topographical map to each and every claimant and, therefore, the question of submitting cadastral map along with the application does not arise. The wife of the Petitioner in her application for grant of lease has also annexed topographical map along with her application. Furthermore, the Respondent himself is not pressing for those requirements, it is expected that the Respondent shall not reject the application for failure to comply the aforesaid two requirements. So the impugned notice cannot be said to be vague. The argument raised by the learned Counsel for the Petitioner assailing the said notice being vague, has no force, and is rejected.

Coming to the second argument, namely, that the impugned notice abridges the provisions of Rule 10 of Rules, 1963, the said Rule 10 is extracted hereunder:

Maximum area for which a mining lease may be granted. -- No person shall acquire in respect of any minor mineral, one or more mining leases covering a total area of more than thirty acres:

Provided that if the State Government is of opinion that in the interests of mineral development it is necessary so to do, it may, for reasons to be recorded, permit any, person to acquire one or more mining leases covering an area in excess of the aforesaid maximum of thirty acres.

Explanation. -- For the purpose of these rules, a person acquiring by or in the name of another person a mining lease which is intended for himself shall be deemed to be acquiring it himself.

A perusal of the Rule 10 clearly shows that the maximum area for which a mining lease may be granted in favour of a person is 30 acres. However, under the proviso to the said rule, the said limit of 30 acres can be relaxed when it is considered necessary so to do in the interest of the mineral development and for doing so, it is incumbent upon the Government to record reasons. In the present case, undisputedly the said limit of 30 acres is not being relaxed in any individual case in favour of a particular applicant, but in respect of a large area in the district. It has been urged on behalf of the State that by the Government Order dated September 8, 1995 (vinde Annexure ''C. A. 2''), this limit of 30 acres has been removed and now it is open to the Respondent to grant lease in respect of any area of land, the statutory limit of 30 acres no more exists. Government Order dated September 8, 1995 has been issued by the Government under Rule 68 of the Rules, 1963. Likewise, in Kamlesh Nishad''s case, the District Officer/Collector had issued notice inviting applications for much larger area, no lot as contemplated under Rule 10 were prepared. The Division Bench of this Court quashed the said notice observing that the said notice frustrates the very object of the Twentieth Amendment. The Division Bench of this Court observed:

The focus of the twentieth amendment is on the persons belonging to socially and educationally backward classes. As stated in the counter-affidavit itself, the State Government wanted to give more and more benefits to the persons who are traditionally engaged in the excavation of Sand and Moram and that is why Rule 9A has been inserted in the Rules. Such objective can be achieved only lots as contemplated by Rule 10 are made and published by the Respondents. Because, if area as big as 3208 acres as specified in the Tehsil Hamirpur in the impugned notice, is notified, then the people belonging to the classes entitled to preferential treatment, would be precluded from making applications inasmuch as, they will not be able to deposit security equal to 25% of annual dead 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 Government.

It may also be mentioned that Clause (3) of the said Government Order dated September 8, 1995 (Annexure ''C. A. 2) provides that the lease for excavation of Sand/Moram shall be given in viable lots and in no circumstances a lease for excavation of land in excess to 50 acres shall be granted but in special circumstances no approach passage being available or prepared for the area or in the absence of a willing person desired to take lease, the said limit of 50 acres can be relaxed. Rule 68 of the Rules, 1963 provides as under:

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.

A perusal of the aforesaid Rule 68 shows that the rule is meant for special and individual cases, not for exercise of blanket power in general. Furthermore, the provisions of Rule 68 are to be applied at the time of granting lease and not for making applications for mining lease. The said view has also been taken by two Division Benches of this Court, earlier in Shiv Charan v. Union of India 1981 ALJ 641, and in Shiv Charan Sharma v. State of U.P. and Ors. Civil Misc. Writ Petition No. 1079 of 1977, decided on 23 January, 1978 (unreported decision). It is, relevant to produce the observations made by the two Division Benches of this Court. Earlier in Shiv Charan v. Union of India, the Division Bench observed:

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 IInd and Chapter IVth 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 IInd or Chapter IVth, as the case may be. It only entitled 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 IInd or Chapter IVth 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 IInd 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 IInd 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 60 it may authorise me 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 IVth 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 60, authorise the grant of any mining lease on terms and conditions different from those laid down in these rules.

(Emphasis supplied).

In Civil Misc. Writ Petition No. 1079 of 1977, the Division Bench also observed as under:

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.

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.

In the result, the writ petition succeeds in part. The impugned notice dated 3.4.1997 (Annexure ''1'' to the writ petition) in so far as it relates to lot No. 4 comprising 300 acres is hereby quashed. The Respondent is directed to issue fresh notice specifying areas as contemplated by Rule 10 of Rules, 1963.

No order as to costs.