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2006 Supreme(All) 479
[2006(2) ADJ 536 (All)(DB)]
ALLAHABAD HIGH COURT
(Division Bench)
BEFORE : YATINDRA SINGH AND R.K. RASTOGI, JJ.
GOPAL PRASAD GUPTA, ETC. ......Petitioner
Versus
STATE OF U.P. AND OTHERS ...Respondents
(Civil Misc. Writ Petition Nos. 3501 of 2004 and 72493 of 2005,
decided on 15th February, 2006)
Counsel :
W.H. Khan, S.P. Singh, J.H. Khan, Dev brat Mukerjee for the Petitioner; S.M.A. Kazmi, Mukesh Prasad, Ram Kishor Gupta and Madan Lal Srivastava for the Respondents.
Headnote:(A) U.P. Minor Mineral (Concession) Rules, 1963—Rule 9-A—Mining lease—Allotment, grant, renewal and cancellation of—Preferential right of certain class of persons—Applicability of Rule 9-A of U.P. Minor Minerals (Concession) Rules, 1963—Which was added by 20th Amendment Rules of 1994, providing for preference to certain classes of persons—Category, in which petitioners applied, was reserved for a particular class of persons, there was no opportunity for a person of general category to apply for grant of mining lease in that category—Because their applications were liable to be rejected under Rule 9-A—Therefore, it cannot be said that lease in favour of petitioners was not granted under Rule 9-A—And so, judgment of Full Court, reported in (2001) 1 SAC 475(All)(FB), striking down said Rule 9-A, has got no effect, upon lease, granted in his favour. [Paras 10 and 11]
(B) Lease—Mining lease—Cancellation of—No opportunity of heard given, denying principles of natural justice—Question of—Rule 9-A of U.P. Minor Mineral (Concession) Rules, was declared to be ultra vires by High Court in a case reported in (2001) 1 SAC 475(All)(FB)—And that order applies to all those persons, in whose favour mining lease were granted, on basis of provisions of Rule 9-A—There was no necessity to give opportunity of hearing to each and every lease-holder, prior to passing of cancellation order, in compliance of decision of High Court in that case—Therefore, order of cancellation of renewal of lease, passed by Government was valid. [Paras 15 and 16]
(C) Lease—Mining lease—Deposit of royalty by petitioners—Cancellation of renewal of lease—Refund—As no relief could be granted to petitioners for permitting them to continue mining lease/operations, but petitioners have deposited royalty, lease amount, security money and stamp duty, on execution of renewed lease-deed, they were entitled to rateable refund of royalty and lease-money, after making deduction, for period during which they had performed mining work, in accordance with renewed lease—Also, they were entitled to full refund of security money and stamp duty paid by them, for execution of renewed lease agreement. [Para 18]
(D) Lease—Mining lease—Grant of, and its renewal—Relief sought by petitioner was that directions may be issued to Government, not to renew mining lease, which were granted, in accordance with Rule 9-A of U.P. Minor Mineral (Concession) Rules, 1963, and to grant such lease by way of auction, after advertising same in newspapers, it was held that same can be granted—And a direction can be issued to Government, not to renew leases, which had been granted, in accordance with said Rule 9-A of Rules, which was declared ultra vires in a case reported in (2001) 1 SAC 475(All)(FB)—As regards second part of relief, regarding granting of mining lease, Government can grant such leases, in accordance with provisions of law. [Para 19]
(E) Lease—Mining lease—Cancellation of, renewal of lease—Petition for quashing notice, issued by D.M.—Petition allowed to extent of rateable refund of royalty and lease money, for a period during which petitioner could not perform mining operations, due to order passed by D.M., and for refund of amount of stamp duty, utilised in execution of lease deed and amount of security money—Also, petitioner entitled to interest on said amounts, for periods amounts remained with Government, at rate applicable to F.D.Rs. of those periods in nationalised Banks. [Para 20]
(F) Lease—Mining lease—Renewal of—Government was restrained from renewing mining lease of those persons, whose cases were covered by Rule 9-A of U.P. Minor Mineral (Concession) Rules, 1963, which was declared ultra vires in Ram Chandra’s case—(2001) 1 SAC 475(All)(FB)—Government directed to take necessary steps for granting mining leases of those areas in accordance with law. [Para 21]
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.
2. 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 v. State of U.P. and another, (2001) 1 SAC 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 undertaking 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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 ultra vires?
(iii)To what relief, if any, is the petitioner entitled in Writ Petition No. 72493 of 2005 ?
8. In writ petition No. 3501 of 2005 the only point that arises for determination is
