Ram Milan vs State of U.P.and Others

U. R Singh, J.—The petitioner has challenged the validity of the order dated 6th December, 1994, contained in Annexure7A of the writ petition, whereby, the Additional District Magistrate, Mau granted lease in favour of respondents No. 6 to 15, for excavating sand from the river Tons. He has also challenged the order passed by the Special Secretary, Department of Heavy Industries, Government of U.P., dated 2331995, whereby, the revision preferred by respondents Nos. 6 to 15, challenging the decision of the Commissioner, Azamgarh Division, Azamgarh, was allowed.

While challenging the order dated 6121994, contained in Annexure7A, whereby, the lease was granted in favour of respondents No. 6 to 15, it was contended that it was a grant of lease only in respect of Tehsil Sadar, District Mau, although, the notice dated 2nd November, 1994 was for the entire district; that it did not specify the area to be allotted; that it did not specific the quantity of the royalty to be paid nor the rate of royalty was constituted; that the order was passed by the Additional District Magistrate, who has no authority to do so and it was, accordingly, without jurisdictions ; that the order granting lease had not been considered by the Committee, nor was it passed by the Chairman of the Committee, and that even if the notice dated 2111994 be treated as valid, the last date for filing applications was 1121994 and a large number of applications were pending from 2121994 to 6121994, but till that date no meeting was held.

The order dated 6121994 was challenged by the petitioner in Civil Misc. Writ Petition No. 41476 of 1994 and the order passed thereon is Annexure9 to this petition, by which, that petition was dismissed in view of the alternative remedy open to the petitioner to approach the Divisional Commissioner by filing an appeal under Rule 77 of the U.R Minor Mineral (Concession Twentieth Amendment) Rules, 1994. The petitioner then approached the Divisional Commissioner, who, by his order contained in Annexure10 to the writ petition, cancelled the order dated 5121994, passed by the Collector, granting lease in favour of the respondents and it also cancelled the order dated 6121994 passed by the Additional District Magistrate. The Commissioner directed the Collector to grant lease in accordance with the Rules.

Aggrieved by the said order of the Commissioner dated 1721995, respondents No. 6 to 15 preferred Revision before the State Government under Rule 78 of the U.P. Minor Mineral (Concession) Rules. The State Government allowed the revision by its order dated 2331995, which is contained in Annexure11. The State Government considered each and every aspect of the matter on record and found that the lease granted in favour of respondents No. 6 to 15 was legal and valid and, the contentions raised by the petitioner was legally unsustainable. It is an elaborate order, giving reasons for its conclusions, which are found to be valid and justified in the facts of the present case.

The said order of the State Government dated 2331995 has been questioned in this writ petition on the ground that it is contrary to Rule 72 and the said order was passed due to political pressure. It was further contended that since the Collector has now issued another notice on 24th March, 1995 (Annexure12), for District Mau, inviting applications, therefore, the leases granted in favour of the respondents do not survive.

It may be stated that in the present writ petition the impugned order dt. 23395 (Annexure11 to the petition), allowing the revision of the respondents, was stayed by this Court on 2141995 and, since then, the respondents No. 6 to 15 had stopped their mining operations. Respondents No. 6 to 15 thus, carried on mining operation only for a period of about two months and the excavated sand, worth lacs of Rupees, are lying stored at the mining site.

It appears that on 22nd July, 1995 a notice had been issued by respondent No. 2, the Collector of District Mau for grant of mining permits over the areas over which mining lease had been granted to respondents No. 6 to 15. The notice dated 2271995 has been annexed with the Supplementary Affidavit marked as Annexure SA1. The respondents No. 6 to 15 have thus, prayed that they are poor persons having no other means of livelihood and if any mining permit for the same area is granted over which they had been granted mining lease, they will suffer irreparable loss and injury and, therefore, this Court may restrain the respondentauthorities from granting any mining lease over the said area in pursuance of the notice dated 22nd July, 1995.

It appears that earlier on 2691994 notice had been issued by the Collector, Mau, for grant of mining lease in the District Mau. This was challenged before this Court in a Writ Petition filed by Sri Shyam Singh and on 19101994 an interim order was passed that "until further orders, applications invited pursuant to the impugned notice dated 2691994 will not be finalised. However, the respondents will be free to issue notice afresh giving 30 days ''time as envisaged by Rule 72 inserted by the U.P. Minor Mineral (Concession) (20th Amendment) Rules 1994."Thus, in pursuance of the said order dated 19101994 another notice was issued on 2111994, giving 30 days clear time for inviting the applications for grant of lease.

The said Sri Shyam Singh again challenged the said notice in W.P. No. 38347 of 1994, on the ground, that it was contrary to Rules 10 and 11 of the U.P. Minor Minerals (Concessions) Rules, 1963 and further that it was not in accordance with ScheduleII of the Government Order dated 2291994 On 30111994 this Court passed in interim order that until further orders, further proceedings for granting lease pursuant to impugned notice dt. 2111994 shall remain stayed, provided no area in accordance with Rule 10 of the U.P. Minor Mineral (Concession) Rules, 1963 has been specified in the notice. However, it will be open to the respondents to issue a fresh notice specifying the area of less than 30 acres or 30 acres ,or more than 30 acres in respect of which applications to grant lease are invited.

The petitioner alleges that the notice dated 2111994 had been issued for the entire district Mau but, on 7121994 respondents No.6 to 15 started the mining work in view of the lease granted to them by the Additional District Magistrate, Mau. It is further alleged by the petitioner that prior to the order dated 6121994 granting the lease in favour of the respondents, the petitioner had given an application that till the lease is finalised, the petitioner is interested to deposit 5% more revenue and he be given mining permit or lease. The petitioner claimed preferential right in view of the amended Rule 9A of the U.P. Minor Mineral (Concession) Rules, 1963 and has challenged the order dated 6121994 contained in Annexure 7Aon various grounds, which have been enumerated in the earlier paragraphs.

The allegations made by the petitioner have been refuted in the counter affidavit and unfounded factual inaccuracies have been demonstrated and it has been contended that the respondent Nos. 6 to 15 were granted valid leases and Divisional Commissioner had exceeded in his jurisdiction in deciding the matter, which was validly reversed by the State Government in revision. The findings recorded by the Divisional Commissioner were illegal and arbitrary and since respondent Nos. 6 to 15 had the preferential right under Rule 9A, their applications being first in point of time, the Collector had not violated Rule 72 of the said Rules and had validly granted lease in favour of respondents 6 to 15. The State Government, while disposing of the revisionapplication, has validly accepted the contention of the respondents and affirmed the order of the Collector.

The respondents No. 6 to 15 belong to the socially and educationally backward class, as contemplated under the Rules. They were granted mining lease only in respect of lots No. 1, 17,18,20,21,22,23,24, 25 and 26 since they were the only applicants and had moved the first application under Rule 9A of the Rules. The petitioner was never the first applicant and could not claim a preferential right. Respondents No. 6 to 15 had moved the applications on 7.11.1994, whereas, the petitioner had moved his application on 8111994. The impugned order dated 6121994 was absolutely legal and valid. The names, addresses and the lots for which the respondents had applied, were all available in the office of the mining Department. There is no prescribed pro forma for sanctioning the mining lease. The areas etc. are all specified in the applications submitted by the applicants in FormMMI. The rate of royalty is not necessary to be mentioned in the order, since the rate of royalty, is given under the Schedule of the 1963 Rules. The allegation that the Committee had not granted the lease and, therefore, the lease was not validly granted, is fit to be rejected, since the areas were not in respect of any reserved forest area.

The Divisional Commissioner exceeded his jurisdiction, inasmuch as, the deposit of royalty, etc. are to be seen by the local authorities after the grant of lease. The royalty under Rule 21 of the Rules is paid only after the mineral is removed from the leased area. The Divisional Commissioner had no jurisdiction to go into this aspect of the matter. Further, under the Rules, there is no specific pro forma for the approval of the application for grant of mining lease. The Divisional Commissioner has recorded a categorical finding that the Collector had passed order granting lease to respondents No. 6 to 15. The State Government, therefore, in its elaborate reasoned order has correctly reversed the findings of the Divisional Commissioner. From a bare perusal of the notice dated 2111994 and the notice dated 2431995, it appears that these two notices are for different areas and not for the same area of which lease was granted to respondents No. 6 to 15, and were issued absolutely in accordance with law.

The application of the petitioner was rightly rejected since respondents No. 6 to 15 had preferential right under Rule 9A (2) of the Rules.

The provisions of amended Rule 9A may be noticed:

"9A. Preferential right of certain persons in respect of sand and morram.(1) Notwithstanding anything contained in Rule 9, in respect of mining lease of sand or morrum or both exclusively found in the river bed, preference shall be given in the following order to a person or group of persons, whether nor incorporated who:

(a) Belong to socially and educationally backward classes of citizens are engaged in carrying on the occupation of excavation of sand or morrum or both as a profession and are resident of the same district in which the area in respect of which the lease is applied for is situated;

(b) Have established or intend to establish the aforesaid minor mineral based industry in the State.

Explanation.For the purpose of clause (a) the persons belonging to socially and educationally backward classes of citizens engaged in carrying on the excavation of sand or morrum or both as profession means Mallah, Kewat, Bind, Nishad, Manjhi, Batham, Dhiwar, Thamayses, Chai, Sorbhai, Turha, Raikwar,Kaiwrat, Khulwat, Tiyar, Gaindia, Godia and Kashyap and includes such other persons as are specified as such by the State Government, by notification in the Official Gazette.

(2) Where two or more persons or group of persons belonging to any of the categories specified in subrule (1) have applied for a mining lease in respect of the same land the applicant whose application was received earlier shall have the preferential right;

Provided that where such applications are received on the same day preference shall be decided by draw of lots."

The said amendment known as U.P. Minor Minerals (Concession) (Twentieth Amendment) Rules, 1994 came into force with effect from the date of publication in the Gazette dated 27th August, 1994. This amendment was introduced in the U.P. Minor Minerals (Concession) Rules, 1963. This provides for a preferential right to be given to certain persons in respect of grant of mining lease of sand and morrum. On a bare reading of clause (2) of Rule 9A. it is clear that if an application has been made for the grant of mining lease in respect of the same land by two or more persons, or group of persons, belonging to any of the categories specified in subrule (1), then the applicant whose application was received earlier, will have the preferential right, and, where, such applications have been received on the same day, then the preferential rights shall be decided by draw of lots.

In the facts of the present case, respondents No. 6 to 15 had me ed such an application for grant of mining lease on 711 1994, whereas, the petitioner had made such an application on 8 111994. Therefore, in terms of the provisions contained in sub rule (2) of Rule 9A the respondents No.6 to 15 were justified in claiming the preferential right over the petitioner. The respondents are the socially and educationally backward class citizens.

On a controversy having been raised during the course of arguments on the ascertainment of fact as to actual receipt of the copy of the applications, this Court vide its direction on 2141995, required respondents No. 6 to 15 to file a supplementary counter affidavit, Annexing a copy of the order of the District Magistrate, showing the acceptance of the applications. The supplementary counter affidavit was, accordingly, filed. A photostat copy of the application filed by the petitioner on 8111994 was annexed as AnnexureSCA2 to the supplementary counter affidavit, which shows that the application submitted by the petitioner was received on 8111994. The application of respondents No. 6 to 15 dated 7111994 for grant of mining lease for different lots, was earlier in point of time and, therefore, their applications were rightly recommended for approval. Thus, the claim of the petitioner for preferential right was validly rejected. Respondents No. 6 to 15 were legally granted the mining lease and they claim to have deposited Rs. 6,30,000 out of total royalty of Rs. 12,53,343 as fixed by the authorities after the survey of different lots. The Treasury Challans, showing the deposit of the aforesaid amount, have been filed as Annexure to the supplementary counter affidavit.

It appears that by his order dated 2771995 the Collector had cancelled the notice dated 2271995 and again issued a fresh notice on 2871995. On 2871995 this Hon''ble Court passed an order, directing that if any settlement is made in respect of such areas which are in dispute in the present writ petition, it should not finalised till further orders of this Court. In compliance of the said order dated 2871995 the notice dated 28.71995 was cancelled and no mining permit under Chapter VI has been issued. Thus, in compliance of the interim orders dated 21 41995, 15595 and 2871995 passed in the present writ petition, neither respondents No. 6 to 15 are operating the mines nor any other person has been granted mining permit under Chapter VI and the area is vacant.

In this view while dismissing the writ petition it is directed that in case the area originally granted to respondents No. 6 to 15 under the mining lease has not been operated by them in full and the mining permit does not subsist then the amount deposited by way of royalty etc. by respondents No. 6 to 15 in pursuance of the mining permit may be returned back to them without further delay and the vacant area may be notified for fresh auction in accordance with law.

In the result, the writ petition is dismissed with the directions indicated above. There shall, however, be no order as to costs. Petition dismissed.