Subedar vs The State of U.P. and Another

We have heard Sri Mukesh Prasad, learned Counsel for the Petitioner. Learned Standing Counsel appears for the Respondents.

In this writ petition, the Petitioner has prayed for the following reliefs:

(i) to issue a writ, order or direction in the nature of mandamus to the Respondent No. 2, the District Magistrate, Gorakhpur to decide the renewal application of the Petitioner, submitted on 30.03.2011, (Annexure-1 to the writ petition) for grant of mining lease in accordance with law, expeditiously.

(ii) to issue any other writ, order or direction which this Hon''ble Court may deem fit and proper in the circumstances of the case.

In paras 3 and 4, the Petitioner has stated as follows:

That the Petitioner, was granted a mining lease of sand, on 24.10.2007, in form MM-3, under Chapter-II of the 1963 Rules, for a period of three year, for an area known as Plot No. Rapti-2, tehsil Campierganj, Pargana Haveli, district Gorakhpur, measuring 20 acres. The said lease is to expire on 01.06.2011.

That the Petitioner, after completing all the requisite formalities as provided under the 1963 Rules, applied in form MM-1-A, on 30.03.2010, for the renewal of his mining lease of Plot No. Rapti-2, tehsil Campierganj, Pargana Haveli, district Gorakhpur, measuring 20 acres.

It is submitted that the District Magistrate, Gorakhpur is sitting tight over the application of the Petitioner for renewal of mining lease, and till date has not fixed priority and recommended the renewal of the lease of the Petitioner to the Directorate, Geology and Mining, Lucknow for obtaining a formal receipt as provided under the Government Order dated 27.05.2005, purportedly on account of interim orders passed in writ petition No. 3967 of 2010 (Misc. Bench) (Abdul Haq v. State of U.P. and Ors.), by which a Division Bench of the Lucknow Court, while admitting the writ petition, has formulated questions and expressed opinion as follows:

We propose to adjudicate the following question in public interest:

Whether Rule 6A as amended and incorporated in U.P. Minor Mineral (Concession) Rules, 1963 read with Government Order dated 16.10.2004 is unconstitutional, being violative of Articles 14, 16 and 21 of the Constitution of India as it permits grant of mining lease by renewing the earlier one through negotiation?

Keeping in view the fact that the two Full Bench judgments of this Court have been decided after considering the catena of judgments of Hon''ble Supreme Court prohibiting grant of lease through renewal without public auction, we restrain the State Government to grant mining lease through renewal or negotiation without publication in newspapers inviting open applications for public auction.

We also stay the operation of the impugned orders dated 15.12.2009 and 13.01.2010 as contained in Annexures No. 1 and 2 to the writ petition. We direct the opposite parties No. 1 to 4/State Government to make advertisement in newspapers with regard to grant of mining lease and proceed accordingly. The Rule in question as well as the Government Order shall not be given effect to by the State authorities.

It has been pointed out by the learned Counsel for the Petitioner that in Satyendra Kumar Tripathi Vs. State of U.P. and Another etc., , the policy of the Government was upheld. This Court by its judgment dated 23.12.2004 held as follows:

On the basis of the aforesaid findings and conclusions recorded by us, we find no justification to strike down the Rules as being unconstitutional and ultra virus the provisions of 1957 Act and the Rules framed therein. There is no repugnancy nor any discernible error so as to declare the Rules being contrary to law. There is no fact pleaded which may demonstrate in order to presume that the State Government has created a monopoly in favour of all castes and has also totally excluded the participation of persons of other castes who are not referred to in the impugned Rules. There is no basis tot-any such presumption. The learned Chief Standing Counsel has made if. clear during the course of his submissions that the State Government will grant preference only to those who are traditionally engaged irrespective of caste to which they belong and the preference will not. be narrowed down to the caste referred to in the impugned rule only. We do not see nor we do find any facts pleaded so as to disbelieve the aforesaid clear-cut stand taken by the learned Chief Standing Counsel on behalf of the Slate Government. The validity of the 26th Amendment. and the 27th Amendment Rules, 2004, in the Uttar Pradesh Minor Mineral (Concession) Rules, 1963 are upheld. The writ petitions, therefore, are devoid of merits and are hereby dismissed.

In Abdul Rahim Khan v. State of U.P. and Ors. writ petition No. 10905 (M/B) of 2008, the Lucknow Bench of the Allahabad High Court, passed an interim order on 4.12.2008, directing the State Government not to grant mining lease by negotiations or only on the basis of inviting applications, and no renewal of existing mining lease shall be done by the State authorities except by putting the same through public auction keeping in view the guidelines provided by the Court in writ petition No. 5018 (M/S) of 2005, reported in 2006 (24) LCD 1243 - Chandrika Prasad Nishad v. State of U.P. and Ors., and the consequential Government orders.

The State Government challenged the interim order dated 4.12.2008, in SLP (C) No. 30223 of 2008 (State of U.P. and Ors. v. Abdul Rahim Khan). The Supreme Court, after granting leave, decided the Civil Appeal No. 1354 of 2009 (arising out of SLP (C) No. 30223 of 2008], as follows:

Leave granted. Heard counsel.

Mr. Pradeep Misra, appearing for the sole Respondent, submitted that the main grievance made out by the Appellants is that they were not given an opportunity to file their counter-affidavit before the interim direction was issued. He stated that after the impugned order was passed, the State Government has filed its detailed counter affidavit before the High Court. He also stated that the Respondent has no objection for the impugned interim order being set aside and the matter being remitted to the High Court, for fresh consideration and decision on the interim prayer.

We accordingly set aside the impugned order dated 04.12.2008 in W.P. No. 10905/2008, except that part of the order which admits the writ petition. The High Court will now consider the interim prayer in accordance with law, uninfluenced by what it had earlier stated in the impugned order dated 04.12.2008. It is open to the parties to file additional pleadings or documents before the High Court. The appeal is disposed of accordingly.

All intervention applications are disposed of as having become in fructuous. A submission is made by the applicants for impleading party that several writ petitions filed by them are pending before the High Court on the issue. If so, it is open to them to request the High Court to take up those cases along with W.P. No. 10905/2008.

Sd/- Hon''ble R.V. Raveendran and Hon''ble J.M. Panchal, J.

We find that once the interim order dated 4.12.2008 was set aside by the Supreme Court, except that part of the order which admits the writ petition, and the High Court was required to consider the interim prayer in accordance with law. It was open to the Court to grant interim prayer afresh, only after taking into consideration the counter affidavit and hearing the counsel appearing for the State Government.

The interim order passed on the same premises, in another writ petition by the same bench [interim order dated 3.5.2010, passed in writ petition No. 3967 of 2010 (Misc. Bench) (Abdul Haq v. State of U.P. and Ors.)] after its earlier interim order was set aside by the Supreme Court, is not strictly in accordance with law and the constitutional limitations, under which the courts function. The orders of the Apex Court are binding on the courts and the authorities of the country. Once the interim order has been set aside, it was open to the court, to decide the interim application, only after considering the counter affidavit of the State.

In this writ petition, we are persuaded by the orders of the Supreme Court, by which the interim order dated 4.12.2008 passed in Abdul Rahim Khan v. State of U.P. and Ors. writ petition No. 10905 (M/B) of 2008 has been set aside. The interim order dated 3.5.2010, passed in writ petition No. 3967 of 2010 (Misc. Bench) (Abdul Haq v. State of U.P. and Ors.), is in the teeth of the order of the Supreme Court.

This Court again had an occasion to consider the orders, and clarified the legal position in Vikas Agarwal v. State of U.P. and Ors. in writ petition No. 34910 of 2010.

We may also observe that general orders cannot be passed by way of interim directions. The orders passed in Abdul Haq v. State of U.P. and Ors. in writ petition No. 3967 of 2010 (M/B) are applicable to that case only, and are not binding upon other cases to be decided on its own merits.

The writ petition is accordingly disposed of with directsions to the District Magistrate, Gorakhpur to send his recommendation for renewal of Petitioner''s mining lease, on merits, to the Director, Geology and Mining, Lucknow, within a period of one month from the date, a certified copy of this order is presented before him. The Director, Geology and Mining, Lucknow, thereafter, shall consider and decide the recommendation in accordance with law, and in accordance with the observations made by us in the judgment, within a period of one month. If the renewal of the mining lease, to be awarded, on lease amount exceeding Rs. 5 lacs, the Collector/Director, Geology and Mining, Lucknow, may refer the matter to the State Government with his recommendation, and in that event, the State Government may decide the recommendation, on merits, in accordance with law, very expeditiously and within one month.