Rameshwar vs Zila Adhikari/Prabhari Adhikari and Others

R.K. Mahajan, J.—The Petitioner has moved this writ petition seeking a writ in the nature of certiorari quashing the impugned order dated 22.1.1996 passed by the Respondent No. 1 (Annexure No. 2 to the writ petition) and he also seeks a writ in the nature of mandamus commanding the Respondent No. 1 not to allow the Respondent No. 3 to excavate "morrum" as the renewal of permit dated 22.1.96 is bad in law and not in consonance with the Rule 55 of the U.P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as the Rules).

This writ petition has arisen out from the following facts. Admittedly, the Petitioner was granted permit on 8.11.1995 for three months to excavate 45755 cubic meter "moram" on payment of royalty of Rs. 5,49,060/- from 8.11.1995 to 7.2.1996, in area Koro Kanak, Pargana Muttor, District Fatehpur. At the time of granting permit, there were other applicants also who competed with the Petitioner.

It is alleged that on 6.1.1996, Mining Inspector inspected the area and found that Sri Gopi Nishad, Respondent No. 3 had excavated 1908 cubic meter "moram" more than what he was permitted to excavate and the report was submitted on 10.1.1996 to the Respondent No. 1. On 11.1.1996, an order was issued to the Respondent No. 3 asking him to stop excavation immediately and deposit Rs. 22,896/- for excess excavation of morrum than mentioned in the original permit. A copy of the aforesaid letter dated 11.1.1996 (Annexure No. 1 to the writ petition) was also sent to the S.H.O. P. S. Lalauli, Fatehpur with a direction to stop the mining operation of Sri Gopi Nishad, Respondent No. 3. The aforesaid letter was received by the Respondent No. 3 on 12.1.1996. It appears that according to allegation in para No. 7 of the writ petition, Sri Gopi Nishad stopped excavation as a result of police intervention on 12.1.1996. It is alleged that according to Rule 55 of the Rules, excavation had been completed of the requisite quantity allowed in the original permit. A new permit under Rule 55 or extension of the same could not have been allowed and as such the order dated 22.1.1996 (Annexure No. 2 to the writ petition) allowing the Respondent No. 3 by Zila Adhikari, Fatehpur, Respondent No. 1 is illegal, arbitrary and collusive and deserves to be quashed.

The Respondent No. 3 filed counter affidavit and stated that he had filed objections on 12.1.1996 against the report of the Mining Inspector and later on, he also filed an application dated 12.1.1996 before the District Magistrate, Fatehpur to grant him mining permit vide Annexure Nos. CA-1 and CA-2 of the counter affidavit. It is also alleged that mining permit was issued to Respondent No. 3 for 10,000 cubic metres "morrum" on payment of royalty of Rs. 1,40,000 vide Annexure No. CA-3 to the counter affidavit and the Respondent No. 3 deposited the amount and he is entitled to excavate morrum upto 7.2.1996. The plea of Respondent No. 1 is that fresh application could not be invited as the period of three months has not expired as envisaged under Rule 55 of the Rules as it was to come to an end on 7.2.1996. Since the Government was to suffer a loss, so permit was given again for a month considering that the State would suffer a loss of huge royalty. The permit-holder was allowed on the same permit upto 7.2.96 to excavate more quantity of "morrum" on payment of royalty as per Rules. There is interesting development in this case that Rameshwar has filed an application that he has not filed the petition nor engaged the counsel. Learned counsel for Respondent No. 3 has argued that the application has been filed by imposter so it should be rejected outrightly. The only short question for determination Is the interpretation of the Rule 55 of the Rules.

The plea of the Petitioner is that once the excavation of requisite quantity of "morrum" is completed, permit expires and the maximum period for excavation is three months and if earlier it is excavated, new permit cannot be issued or the permit-holder cannot be allowed to excavate more. The submission of the counsel for the Respondent is that even more quantity has been excavated than mentioned in the original permit given to the original permit holder, even then the permit can be renewed within three months. We are afraid to agree with the counsel for the Respondent. We are of the opinion that renewal will not be in public interest and against the Rules. There are two contingencies laid down in the Rule, i.e., the permit so issued shall be valid until the date of the expiry of permit specified in the permit or till such date when the permitted quantity of "morrum" is removed, whichever is earlier. On a plain interpretation of the Rule, it is clear that if the quantity is excavated earlier than three months, the permit expires. The Rule envisages that outer limit is three months for excavation of the "morrum" granted in the permit and no other interpretation can be put. There is Rule u/s 27A of the Rules for procedure of grant of lease by tender. To understand more clearly, Rule 27A of the Rules is quoted with advantage:

27A. Procedure for grant of lease by tender.--(1) In respect of an area or areas declared under Sub-rule (1) of Rule 23, as area for grant of lease by tender, the following shall be the procedure:

(i) The District Officer or the Committee shall at least thirty days before the last date of submission of tenders, invite tenders by publishing a tender notice in a daily Hindi Newspaper having circulation in the district, in which the area or areas is/are situate. The tender notice shall contain the term and conditions of the lease and the details of area or areas alongwith the last date and time up to which and the place where the tenders may be submitted.

(ii) Copies of tender notice shall also be put up on the Notice Board at the office of the District Officer and at some convenient place close to area.

Rule 27 lays down procedure for grant of lease by auction. It is quoted with advantage:

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 the auction:

These rules safeguard the interest of the public money and fair opportunity is given to future bidders or prospective tenderers. In public contracts/tenders, every body has a right to bid or offer a tender, if he fullfils the conditions.

The Supreme court has laid down in catena of authorities right from Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, and held that:

...the Government is not like a private individual who can pick and choose the person with whom it will deal, but the Government is still a Government when it enters into contract or when it is administering largesse and it cannot, without adequate reason, exclude any person from dealing with it or take away largesse arbitrarily.

In Fertilizer Corporation Kamgar Union (Regd.), Sindri and Others Vs. Union of India (UOI) and Others, , the Supreme Court observed as follows (Paras 22 and 23 of AIR):

If and when a sale of public property is found to be vitiated by arbitrariness or mala fides, it would be necessary to consider the larger question as to who has the right to complain of it.

If public property is dissipated, it would require a strong argument to convince the court that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligation. Public enterprises are owned by the people and those who run them are accountable to the people.

There is latest ruling in Sterling Computers Limited and Others Vs. M and N Publications Limited and Others, , the Supreme Court observed as follows (Paras 14, 26 and 29 of AIR):

The action or the procedure adopted by the authorities which can be held to be State within the meaning of Article 12 of the Constitution, while awarding contracts in respect of properties belonging to the State, can be judged and tested in the light of Article 14 of the Constitution, is settled by the judgments of this court.

The Government, therefore, cannot, for example, give a contract or sell or lease out its property for a consideration less than the highest that can be obtained for it, unless of course there are other considerations which render it reasonable and in public interest to do so."

...Once the State decides to grant any right or privilege to others, then there is no escape from the rigour of Article 14, the executive does not have an absolute discretion, certain precepts and principles have to be followed, the public interest being the paramount consideration. It has also been pointed out that for securing the public interest one of the methods recognized is to invite tenders affording opportunity to submit officers for consideration in an objective manner.

The rationale behind inviting tender is that a public property is not fettered or looted or grabbed or dissipated by following unfair procedure and there should be transparency in the transaction of lenders. The rationale behind inviting tenders is to raise the highest possible revenue for the State. Following the ratio of the rulings and statutory provisions of Rule 27 and Rule 27A of the Rules, the best and legal course was to invite fresh tenders and not to renew it which renewal is illegal and impugned document dated 22.1.1996 Annexure No. 2 is quashed.

We do not agree with the submission forwarded by the learned counsel for the Respondent that the petition has been filed by an imposter nor we would like to enter into that controversy. Information has been received by the court and we would like to safeguard the property in the public interest.

In view of the above discussion, we allow this writ petition and quash the impugned order dated 22.1.96. A copy of the judgment be sent to the Secretary (Mining), Government of U.P. for information and necessary action.