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CHHOTEY LAL PASWAN versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Chhotey Lal Paswan v. State Of U.P. And Others - PUBLIC INTEREST LITIGATION (PIL) No. 13899 of 2007 [2007] RD-AH 4521 (15 March 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

CJ's Court

Civil Misc. Writ Petition No.13899 of 2007

Chhotey Lal Paswan ........    Petitioner

Versus

State of U.P & others            ........     Respondents

...........

Counsel for the petitioner     : Mr. W.H.Khan  

Counsel for the respondent  : Learned standing counsel

Hon'ble H.L.Gokhale, C.J

Hon'ble Ashok Bhushan, J.

1.  Heard Mr. W.H.Khan in support of this petition filed as P.I.L  and the Learned standing counsel for the State.

2.  The petition seeks to challenge the letter dated  19.7.2006.  The Special Secretary of the State Government has addressed this letter to the District Collector Sonbhadra, granting  permission to the respondent No. 5 to have a partnership  of his mining lease with respondent No.6.

3. The short facts leading to this Public Interest Litigation  are this wise.          Under the government scheme and the U.P Minor Mineral(Concession) Rules 1963,  there is a scheme to give preference to the persons belonging to the socially and educationally backward  classes  residing in particular District  in respect of mining lease for Sand  or  Morrum or bajri or boulder or any of these in mixed state, exclusively found in the river bed.  Respondent No. 5 is one such person belonging to socially and educationally backward classes.  He has been  granted such a mining lease in District Sonebhadra.  He has taken respondent No. 6 in partnership.  As far as this taking of somebody else in partnership is concerned,  Rule 19 is relevant Rule which governs such  transfer or assignment.    This Rule 19 read as follows:

" 19.  Transfer of lease (1) A lessee shall not -

  (a)  assign sublet, mortgage or in any other manner transfer the mining             lease or any right, title or interest therein; or

              (b)  enter into or make any arrangement, contract or understanding where by the lessee may be directly or indirectly financed to a substantial extend or may be substantially controlled in mining operations by any person or body of persons other than himself;

Provided that a lessee may with the prior approval of the State Government and subject to such conditions and restrictions as may be imposed by it, mortgage to a finance corporation owned and controlled  by the State Government or to a scheduled Bank as defined in clause (a) of section 2 of the Reserve Bank of India Act, 1934 or a Bank specified in column of the first schedule to the Banking Companies (Acquisition and transfer of undertaking) Act, 1970, or assign to any other person a mining lease or any right, title or interest therein. "

5. The respondent No.5 has taken respondent No.6 in partnership and respondent No.6 will have 60% share in the arrangement between the two.   That has been permitted by the State Government under the impugned communication.  

6. Mr. Khan, learned counsel for the petitioner  submits that respondent No.6  is a office bearer  of the Samajwadi Party which is a ruling party in the State.  He has placed a letter of the respondent No.6  on record.  He has submitted that it is for this reason that this partnership has been permitted by the State Government.  He submits that this a colour-able exercise of the power. That apart, in his submission this is not  permissible since in his interpretation the person who is to be taken into this partnership or  any arrangement or assignment has to be a person of the same  District, and respondent No.6 is not from district Sonbhadra.  

6. When we examine the second  submission first, as far as the original allotment is concerned, there is no difficulty in accepting that the person concerned has to be a resident of the  District  from which the application has been given. That has been specifically stated in Rule 9(3)(e) of the aforesaid mining rules.  As far as the first submission on further transfer is concerned,  the proviso to Rule 19(1)(b)  (which has been quoted above) provides that the transfer in this particular manner may be permitted with the approval of the State Government.  It is as however, to be subject to such conditions and restrictions as may be imposed by the Government.  It is provided that this transfer has to be-

i)by way of mortgage to a finance corporation owned and controlled by the State Government

or

ii)to a scheduled Bank as defined  in clause (a) of section 2 of Reserve Bank of India Act, 1934 or a Bank specified in column of the first schedule to the Banking Companies (Acquisition and transfer of undertaking) Act, 1970 or a nationalised Bank.

or

iii)assignment to any other person  or a mining lease or any right, title or interest.

The submission of petitioner is that the third category is to be read as ejusdem-generis to other  two categories.

It is not possible to accept these submissions. The first two categories are all together different.  One is a Corporation owned by the State Government. The second is a scheduled Bank or a nationalised Bank  and the third is any other person.   The object of making this provision is to see to it that a person who is not financially strong  takes in such a corporation or a Bank or a person as his partner.   Undoubtedly, a government corporation or a scheduled Bank or a nationalised Bank is preferable.  However, it is equally possible that a person may prefer joining on individual as a partner rather than  joining a public corporation or a nationalised Bank. That option  is kept available under the clause.  The idea is to provide such a person from weaker section to take the assistance of a government corporation or a nationalised  Bank or  any other person.  In the instance case he has joined respondent no. 6 along with him.  On the face of the rule, it cannot be said that it is impermissible.

7. Mr. Khan then drawn our attention to the observation of the Apex Court  in paragraph 36 of  Onkar Lal Bajaj and others versus Union of India and another  reported at (2003) 2  Supreme Court Cases   673. That was a matter concerning the wrong allotment of the dealership of petroleum products to various individuals  irrespective  of any merit or scheme.  In paragraph 36 what is observed is that though on the face of it, a decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve  popular accolade. Such a decision cannot be allowed to operate.

8. In the present case, it is permissible under the existing rules to take some such third person as a partner.  The joining of an office bearer of a political party cannot  by itself be considered as a negative factor for rejecting the claim of such a person. No favour is being made towards such a person in the present matter as was done in Onkar Lal's case.

9. The petition is rejected.  

Date 15.3.2007                                                                                (Chief Justice)

IB

                                                                                          (Ashok Bhushan,J)


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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