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Gopal Prasad Gupt v. State Of U.P.And Others - WRIT - C No. 3501 of 2004  RD-AH 3516 (15 February 2006)
Civil Misc. Writ Petition No. 3501 of 2004
Gopal Prasad Gupta . . . Vs. . . . .State of U.P. and others.
Civil Misc. Writ Petition no. 72493 of 2005
Krishna Kumar . . . . . Vs. . . . . . State of U.P. and others.
Hon'ble Yatindra Singh,J.
(Delivered by Hon'ble R.K.Rastogi, J)
In both these writ petitions a common question of law regarding applicability of Rule 9-A of The U.P. Minor Minerals (Concession) Rules ,1963 ( the Rules) is involved , hence we have heard both of them together and now we are deciding them by a common judgment.
The facts relevant for disposal of both these writ petitions are that The U.P. Minor Minerals (Concession) Rules,1963 were amended by the 20th Amendment Rules on 7.8.1994 and Rule 9-A was added which provides for preference to certain class of persons in the matter of grant of mining leases. This amendment was challenged in a writ petition and was declared ultra-vires by Full bench decision of this Court in the case of 'Ram Chandra Vs. State of U.P. and another' reported in (2001) 1 SAC page 475. A Special Leave Petition was filed against this order before the Hon'ble Apex Court. Later on this appeal was disposed of on 9.9.2002 on the under taking given by the State Government that no preference will be given to any one in granting the mining leases. It is relevant to point out that some leases had already been granted in pursuance of the 20th Amendment dated 7.8.1994. These leases were permitted to complete their terms. In these leases there was also a provision for renewal of the lease. Some persons to whom the leases had been granted applied for renewal of the leases . Civil Misc. Writ Petition no. 3501 of 2004 has been filed more or less for restraining the grant of renewal of the leases.
A notice was issued on 19.1.2001 advertising Lot no. 2 Khand No. 871 village Piper Deeh Tehsil Dudhi District Sonbhadra for grant of mining lease. The mining lease was granted to Kirshna Kumar, the petitioner in W.P. no. 72493 of 2005 on 27.2.2001. This lease itself was for three years . Krishna Kumar applied for renewal of the lease on 15.9.2003. This lease was renewed for a further period of three years on 10.7.2005. The lease deed was also executed on 18.7.2005. This was cancelled on 14.10.2005 without giving any opportunity of hearing to Krishna Kumar. Hence, he has filed Writ Petition no. 72493 of 2005.
After the lease of Krishna Kumar had been renewed on 10.7.2005 one Kuldeep Prasad Yadav had filed Civil Misc. Writ Petition no. 54636 of 2005 challenging this renewal. In this writ petition interim order was granted on 10.8.2005 staying operation of the renewal in favour of Krishna Kumar. In this writ petition counter and rejoinder affidavits were exchanged. However, after cancellation of the renewal by the District Magistrate on 14.10.2005 this writ petition was dismissed as infructuous on 20.10.2005.
We have heard Sri W.H. Khan, counsel for Gopal Prasad Gupta, petitioner in Writ Petition no. 3501 of 2004 and Sri Dev Brat Mukerjee, counsel for the person seeking impleadment in this writ petition. We have also heard Sri Dev Brat Mukerjee, counsel for Krishna Kumar, petitioner in Writ Petition no. 72493 of 2005, Sri W.H. Khan, counsel for caveator respondent and the Standing Counsel for the State of U.P. and State Officials in both the writ petition.
The counsel for Krishna Kumar, petitioner in Writ Petition no.72493 of 2005 submitted that the order of cancellation of the lease deed was passed without giving any opportunity of hearing to the petitioner. Sri W.H. Khan and the Standing Counsel submitted that though no opportunity has been given to the petitioner yet this lease granted under the provisions of Rule 9-A was rightly cancelled .
The following points arise for determination in writ petition No. 72493 of 2005:
(i)Whether the petitioner was granted the mining lease without allowing any preferential right to him as provided in Rule 9-A of the Rules ?
(ii)Whether the order cancelling his lease without giving any opportunity of show cause to him is illegal and ultravires ?
(iii)To what relief , if any, is the petitioner entitled in Writ Petition No. 72493 of 2005 ?
In writ petition No. 3501 of 2005 the only point that arises for determination is whether the relief sought by the petitioner can be granted.
First of all we take up the first point of writ petition no. 72493 of 2005.
The petitioner's case is that though there was a provision for preferential right of certain class of persons in respect of grant of mining lease as provided in Rule 9-A of the Rules, yet he did not get allotment of the lease on the basis of this Rule because none from the general category had applied for grant of lease, and so his application for grant of lease was allowed. So the order for grant of lease in his favour can not be deemed to have been passed under Rule 9-A. As such the lease granted in his favour was not liable to be cancelled.
After careful consideration of the record and the relevant provisions, we do not find any force in the above contention. When the category, in which the petitioner applied for grant of mining lease was reserved for a particular class of persons, there was no opportunity for a person of the general category to apply for grant of mining lease in that category because their applications were liable to be rejected under Rule 9-A. Hence no body from the general category applied for grant of mining lease in that category which was reserved for a certain class of persons and so the petitioner's application ,who was a candidate of the preferential category, was allowed. Subsequently when the above Rule being unconstitutional and ultravires, has been struck down by a Full Bench of this court in the case of Ram Chandra (supra), the petitioner can not take this plea that since there was no candidate of the general category his lease shall not be affected. The ratio of the above judgment as well as of the subsequent orders passed by the Government in respect of the leases, which were granted in accordance with the above Rule 9-A, shall apply to the case of the petitioner also. In this way there is no force in the contention of the petitioner that the lease in his favour was not granted under Rule 9-A, and so the Full Bench judgment of this court striking down the above Rule has got no effect upon the lease granted in his favour.
Now, we take up point no. 2.
The case of the petitioner is that since no opportunity was given to him prior to cancelling the lease in his favour, the order passed by the Government is in violation of the principle of natural justice, and so it was illegal. The learned Standing Counsel for State conceded that no opportunity of hearing was given to the petitioner prior to passing of the impugned order, but their contention is that there was no necessity to do so. In this connection it would be useful to go through the following date chart mentioning the dates of relevant incidents which are as under:
27.2.01 A mining lease was granted in favour of the petitioner for a period of three years.
17.3.01 A lease deed was executed between the petitioner and State.
27.3.01 The Full Bench of this court held in writ petition No. 256 of 1997 (Ram Chandra Vs.State of U.P.) that Rule 9-A of the Rules was unconstitutional and ultravires.
10.9.01 The State Government filed an appeal against the judgment of the Full Bench of this court before the Hon'ble Apex Court and in that S.L.P. an interim order was passed by the Hon'ble Apex Court directing that " Status quo as on today be maintained".
11.1.02 A Division Bench of this court interpreted the aforesaid interim order regarding status quo ( passed by the Hon'ble Apex Court ) in Civil Misc. Writ Petition No.44196/01, Katwaru Vs. Spl. Secretary, Industrial Development Anubhag, U.P. Govt. and others, decided on 11.1.02 reported in 2002(1), AWC 657 holding that the leases already granted before the Full Bench judgment of this Court were not to be affected but fresh mining lease on preferential basis under Rule 9-A could not be granted nor renewal of any such lease was to be granted after decision of the Full Bench .
15.9.03 The petitioner applied for renewal of the lease.
10.7.05 The lease was renewed for a further period of three years.
18.7.05 The lease deed was executed .
7.10.05 A letter was issued by Sri S.B. Misra Under Secretary of the Industrial development, Section -5, directing the District Magistrate ,Sonebhadrato cancel the renewal of the lease in favour of the petitioner.
14.10.05 The order was passed by the District Magistrate Sonebhadra cancelling the renewal of the lease in favour of the petitioner.
It is, thus, apparent from the above date chart that the lease in favour of the petitioner was granted on 27.2.2001 when Rule 9-A of the Rules was in the Statute book, and was in force, and as such the lease was validly granted in favour of the petitioner on that date. Even after decision of the Full Bench in the case of Ram Chandra (surpa) on 27.3.01, the lease in the petitioner's favour which was granted prior to the above date validly continued for a period of three years i.e. up to 17.3.04. However, in view of the Ruling of this court in Katwaru Vs. Special Secretary Industrial Development Anubhag, U.P. and others : 2002 (1) AWC 657, this lease could not be renewed after 17.3 .04 and the order for its renewal was illegal.
The petitioner's contention is that no opportunity of hearing was given to him prior to passing of the impugned cancellation order dated 14.10.05 and so this order being in violation of the principles of natural justice is illegal and it should be set aside, and a fresh opportunity of hearing should be granted to him. The State Government has conceded that no opportunity of hearing was given to the petitioner, but its case is that the above order was validly passed in pursuance of the Full Bench decision of this Court and so there was no necessity to give any opportunity of hearing to the petitioner.
After a careful consideration of the facts and circumstances of the case, we are in agreement with the aforesaid submission of the learned Standing Counsel. It is to be seen that in the present case Rule 9A of the Rules was declared to be ultravires by this Court, and that order applies to all those persons in whose favour the mining leases were granted on the basis of provisions of Rule 9A. There was no necessity to give opportunity of hearing to each and every lease holder prior to passing of the cancellation order in compliance of the decision of this Court. It is also to be seen that in this case the petitioner enjoyed benefits of the mining lease originally granted in his favour for a period of about 3 years even after decision of the Full Bench of this Court, and he also applied for renewal of the lease, though he must have been aware of this fact that in view of the decision of the Full Bench of this court as well as of the order of Hon'ble Apex Court, no renewal could be granted in his favour . The Renewal was granted in his favour by the Government in violation of the direction of this Court as well as of the Hon'ble Apex Court in the case referred to above. However, when this mistake was pointed out, the Government , taking into consideration the decision of this court as well as the order of Hon'ble Apex Court, decided to cancel renewal of the lease. It did not commit any illegality by doing so, nor it was necessary to give any opportunity of hearing to the petitioner when orders for cancellation of lease were passed in compliance of the direction of the Court. As such, we do not find any force in the second contention also of the petitioner, and hold that the order of cancellation of renewal of lease passed by the Government is valid.
Now, we take up to the third point.
It is to be seen that in view of the findings on points no. 1 and 2, no relief for permitting the petitioner to continue the mining operations can be granted. However, it is to be seen that the petitioner must have deposited the royalty , the lease amount, the security money and the stamp duty on execution of the renewed lease deed. Since these amounts were incurred by the petitioner in pursuance of renewal of the lease granted by the Government, we are of the view that the petitioner is entitled to rateable refund of the royalty, and the lease money after making deduction for the period during which the petitioner had performed the mining work in accordance with the renewed lease. He shall also be entitled to full refund of the security money and the stamp duty paid by him for execution of renewed lease agreement . In the case of Kamla Kant Pandey Vs. State of U.P. and others in Writ Petition No. 43774 of 2005 decided on 16.12.2005 [ 2006(1) A.D.J. 142] we have allowed interest on this amount at the rate which was applicable to F.D.Rs. in the nationalised Banks for the periods during which the amount remained with the Government, and the Government while passing orders for return of rateable royalty and lease money and full stamp duty and caution money, shall allow interest on these amounts for the periods the amounts remained with it at the rate applicable to F.D.Rs. of those periods in the nationalised Bank.
Now, we come to Writ Petition No. 3501 of 2004. In this writ petition the relief sought by the petitioner was that directions may be issued to the Government not to renew the mining leases which were granted in accordance with Rule 9-A of the Rules , and to grant such leases by way of auction after advertising the same in the widely circulated news papers. We are of the view that so far as the first part of the relief sought by the petitioner is concerned , the same can be granted and a direction can be issued to the Government not to renew the leases which had been granted in accordance with Rule 9A of the Rules that has now been declared ultravires. So far as second part of the relief regarding grant of mining leases is concerned, the Government can grant such leases in accordance with the provisions of law. With these observations, this writ petition is liable to be disposed of.
Writ petition No.72493 of 2005 is partly allowed. It is dismissed so far it relates to grant of relief for quashing the order dated 14.10.2005 passed by the District Magistrate, Sonebhadra cancelling the renewal of lease in favour of the petitioner and for quashing the notice dated 18.10.2005 inviting applications for grant of fresh lease. However, the writ petition is allowed to the extent of rateable refund of royalty and lease money for the period during which the petitioner could not perform the mining operations due to the order passed by the District Magistrate , Sonebhadra on 14.10.2005, and for full refund of amount of the stamp duty utilised in execution of the lease deed and the amount of security money. The petitioner shall also be entitled to interest on the above amount for the periods the amount remained with the government at the rate applicable to F. D. Rs. of those periods in the nationalised Banks.
Writ Petition No. 3501 of 2004 is also partly allowed and the Government is restrained from renewing mining leases of those persons whose cases are covered by Rule 9A of the Rules now declared ultravires. The Government shall take necessary steps for granting mining leases of these areas in accordance with law.
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