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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Petitioner : Dev Brat Mukherjee For the Respondents : C.S.C.
  • Shashi Nandan and Madan Lal Srivastava.
Judges
  • Tarun Agarwala
  • Narayan Shukla, JJ.
Acts
  • Uttar Pradesh Minor Mineral (Concession) (37 Amendment) Rules,
  • provisions of 37 Amendment of the Rules of 1963. Several
  • provisions 2, 3 and 6 of the Rules of 1963
  • Regulation) Act, 1957 (in short the Act)
  • Rule 23(1) of the Rules of 1963
  • Rule 24 of the Rules, 1963
  • Rule 78 of the Rules, 1963
  • Rule 23(1) of the Rules.
  • Sub-rule (1) of Rule 23
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Petitioner : Dev Brat Mukherjee For the Respondents : C.S.C.
  • Shashi Nandan and Madan Lal Srivastava.
Judges
  • Tarun Agarwala
  • Narayan Shukla, JJ.
Acts
  • Uttar Pradesh Minor Mineral (Concession) (37 Amendment) Rules,
  • provisions of 37 Amendment of the Rules of 1963. Several
  • provisions 2, 3 and 6 of the Rules of 1963
  • Regulation) Act, 1957 (in short the Act)
  • Rule 23(1) of the Rules of 1963
  • Rule 24 of the Rules, 1963
  • Rule 78 of the Rules, 1963
  • Rule 23(1) of the Rules.
  • Sub-rule (1) of Rule 23
See more information ...
Smart Summary

Judicial Opinion — Summary

Factual and Procedural Background

This opinion concerns petitions challenging mining leases granted by the District Magistrate, Sonebhadra (respondent no. 2) dated 24.05.2014 and 26.05.2014 in favour of respondents no. 4 and 5 over Plot No. 6229 (kha) measuring five acres at Village Billi Markundi, Obra, Tahsil-Robertsganj, District-Sonebhadra. The petitions seek quashing of those leases on the ground that they contravene directions in the Supreme Court judgment in Deepak Kumar v. State of Haryana and an earlier decision of this Court in Nar Narain Mishra v. State of U.P.

Background chronology, based on the material in the opinion:

  • 16.10.2004 — The State's entire mining area was declared for grant of mining leases under Chapter II of the U.P. Minor Minerals (Concession) Rules, 1963.
  • 17/18.07.2009 — District Magistrate, Sonebhadra issued a notice inviting applications (Advertisement No. 279 dated 17.07.2009 / 18.07.2009) for settling two mining plots, including the plot in question. The petitioner and others applied by Form MM-1; 34 applicants in total.
  • 10.08.2010 — The District Magistrate issued a letter intimating that the 17/18.07.2009 notice was rejected, with the consequence that applications pursuant to that notice stood rejected.
  • 09.09.2009 — Respondents no. 4 and 5 had submitted applications (the District Magistrate later entertained those applications), and mining leases were ultimately granted to them in May 2014.
  • 27.02.2012 — The Supreme Court in Deepak Kumar directed that no mining lease shall be granted/renewed for less than five hectares without obtaining an Environmental Clearance Certificate (EC).
  • 31.05.2012 — The State issued a Circular/Declaration under Rule 23(1) applying the Supreme Court directions; the validity of that order and consequential notices were challenged in Nar Narain Mishra. This Court upheld the Government Order but quashed certain notices and directed e-tendering after amending the Rules.
  • During pendency — The State introduced the 35th Amendment to the Rules fixing "Minimum area for grant of mining lease shall be 5 hectares."
  • Thereafter — A sequence of administrative and judicial steps followed (including writ petitions, revisions, an order of the Director of Mining dated 17.03.2012 authorising the District Magistrate to grant leases, and further directions requiring ECs). Respondent no.4 submitted an EC and subsequent orders led to leases being executed in May 2014 over a five-acre plot.
  • 22.10.2014 — A Government Order (referenced in the opinion) reportedly superseded earlier Government Orders (including that of 31.05.2012), revoked earlier declarations, and stated that applications submitted pursuant to different Government Orders stood cancelled.

Legal Issues Presented

  1. Whether mining leases granted on 24.05.2014 and 26.05.2014 to respondents no. 4 and 5 (for a plot measuring five acres) were legally valid in view of the Supreme Court's direction in Deepak Kumar that no lease be granted/renewed for less than five hectares without an Environmental Clearance Certificate.
  2. Whether applications for grant of fresh leases or renewals that were pending on 31.05.2012 (the date of the State's declaration under Rule 23(1)) conferred any vested right to have those applications considered or to obtain leases despite subsequent statutory changes and court directions (as interpreted in Nar Narain Mishra and subsequent orders).
  3. Whether leases granted after the cancellation of the specific notice inviting applications (dated 17/18.07.2009 and cancelled by letter dated 10.08.2010) could be validly executed in favour of applicants who had applied under that cancelled notice.

Arguments of the Parties

Petitioner's Arguments (as advanced by Mr. Dev Brat Mukherjee)

  • The leases dated 24.05.2014 and 26.05.2014 were contrary to the Supreme Court judgment in Deepak Kumar and the decision in Nar Narain Mishra.
  • After the State Government's declaration under Rule 23(1) (and the Court's directions in Nar Narain Mishra), applications pending as of 31.05.2012 were to be treated as cancelled and could not be considered for grant of leases.
  • The State issued the 35th Amendment prescribing a minimum area of five hectares for mining leases; the leases granted in May 2014 were for an area less than that threshold (five acres) and therefore impermissible under the evolved legal framework and Circulars.
  • The respondent-authority had no occasion to grant the leases because the original notice inviting applications (17/18.07.2009) was cancelled, and subsequent legal developments precluded consideration of applications filed pursuant to that notice.

Respondents' Arguments

  • Respondents no. 2 and 3 (state authorities) admitted cancellation of Advertisement No. 279 (17.07.2009) but stated that applicants were required to file fresh applications; they noted a subsequent advertisement published on 11.08.2010.
  • Respondents no. 4 and 5 relied on a sequence of litigation and administrative orders: an order of this Court disposing of Civil Misc. Writ Petition No. 51321 of 2010 (directing them to seek alternate remedy under Rule 78), rejection of their revision by the State Government, a subsequent writ (No. 54211 of 2011) in which this Court quashed a State Government order and directed the Director of Mining to proceed with the District Magistrate's recommendation dated 20.07.2010, and the Director of Mining's order dated 17.03.2012 authorising the District Magistrate to grant leases and proceed with execution.
  • Respondents no. 4 and 5 claimed that, on the basis of their preferential right arising from applications made pursuant to the 18.07.2009 notice and subsequent judicial directions/orders, their entitlement to the lease had been determined in their favour; they asserted that the leases were granted under the cover of orders passed by the Court at different stages.
  • Respondents no. 4 and 5 did not deny the cancellation of the earlier notice but relied on the protective effect of the judicial orders (including the Director of Mining's directions and related court orders) to justify grant and operation of the leases.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Deepak Kumar v. State of Haryana, (2012) 4 SCC 629 (Special Leave Petition No. 19628-19629 of 2009) The Supreme Court directed that no mining lease shall be granted/renewed for less than five hectares without obtaining an Environmental Clearance Certificate from the competent authority. The court relied on this Supreme Court direction to emphasise the requirement of environmental clearance for leases below five hectares and to scrutinise the legality of leases granted in May 2014 that pertained to a five-acre plot.
Nar Narain Mishra v. State of U.P., 2013 (2) ADJ 166 (DB) This Court upheld the State Government's declaration dated 31.05.2012 but quashed certain notices for e-tendering and directed the State to amend the Rules; additionally, it held that applications pending on 31.05.2012 for grant or renewal could not be directed to be considered. The court applied the Nar Narain Mishra holding to conclude that applications pending as of 31.05.2012 did not confer a right to have those applications considered and that grants made after that date (including the May 2014 grants) could not stand where they conflicted with the declared legal position and subsequent rule changes.
Sukhan Singh v. State of U.P., PIL No. 31643 of 2014 This Court reiterated that mere filing of an application for grant or renewal of a lease does not create a vested right; applications must be disposed of in accordance with the rules as they stand on the date of disposal. The court cited this principle to reject claims that a pending application itself conferred an enforceable right to a lease despite intervening legal changes and to support the conclusion that respondents could not rely solely on the fact of an earlier-filed application to sustain their leases.

Court's Reasoning and Analysis

The court's analysis proceeded by reference to the statutory scheme (the Mines and Minerals (Development and Regulation) Act, 1957 and the U.P. Minor Minerals (Concession) Rules, 1963) and the sequence of administrative and judicial events recorded in the record. Key points of the reasoning as set out in the opinion:

  1. The Rules of 1963 provide different routes for grant of mining leases (Chapter II by application in Form MM-1 and Chapter IV by auction/tender). After a State declaration under Rule 23(1), Rule 24 empowers withdrawal of areas and renders Chapters II, III and VI applicable to declared areas.
  2. The court examined the administrative history: a notice of 17/18.07.2009 invited applications (which included the plot in question), those applications were pending, but the District Magistrate's letter dated 10.08.2010 indicated the notice was rejected, which led to rejection of those applications.
  3. Subsequent actions by the State (declaration under Rule 23(1) on 31.05.2012), judicial scrutiny in Nar Narain Mishra, and the Supreme Court's directions in Deepak Kumar (requiring EC for leases under five hectares) altered the legal landscape governing the grant of leases. The State introduced the 35th Amendment prescribing a minimum area of five hectares for grants.
  4. The court noted authoritative rulings (Nar Narain Mishra and Sukhan Singh) that an application pending as at 31.05.2012 could not itself be enforced to obtain a lease, and that mere filing of an application does not create a vested right; applications must be considered under the rules as they stand on the date of disposal.
  5. Given that the notice inviting applications was cancelled on 10.08.2010, and given the declaration and subsequent rule amendments and judicial directions, the court concluded there was "no occasion" for the District Magistrate to consider and grant leases in favour of applicants who had applied pursuant to the cancelled notice, particularly after the declarations and rule changes.
  6. The court took account of subsequent administrative developments (including a Government Order dated 22.10.2014 and the 37th Amendment of the Rules of 1963) which, according to the State, superseded earlier declarations and required a fresh exercise for grant of leases under the newly applicable terms. These developments reinforced the court's view that respondents no. 4 and 5 could not continue to operate under the leases in question.
  7. On the basis of the above, and consistent with the cited precedents, the court found the leases granted on 24.05.2014 and 26.05.2014 to be unlawful and therefore liable to be quashed. For related writ petitions seeking mandamus to execute leases in favour of other applicants, the court concluded such relief could not be granted in view of the declared legal position and intervening changes.

Holding and Implications

Holding:

Writ Petition Nos. 38034 of 2014 and 38064 of 2014 are allowed. The leases granted in favour of respondent nos. 4 and 5 by the District Magistrate, Sonebhadra by orders dated 24.05.2014 and 26.05.2014 on Plot No. 6229 (Kha) measuring five acres are quashed. The District Magistrate is directed to stop the mining forthwith. In view of this outcome, Writ Petition Nos. 12622 of 2014 and 12663 of 2014 are dismissed.

Implications:

  • Direct effect: The specific mining leases dated 24.05.2014 and 26.05.2014 are quashed and operations under those leases are to be stopped by the District Magistrate. The petitioners who sought quashing of those leases have succeeded; petitioners who sought mandamus to execute other leases (WPs 12622 and 12663) have been denied relief.
  • Broader legal impact: The court applied and relied on existing Supreme Court and High Court decisions (Deepak Kumar; Nar Narain Mishra; Sukhan Singh) to determine that pending applications as of 31.05.2012 do not create vested rights and that environmental clearance and statutory rule requirements control the validity of leases. The opinion does not purport to establish a novel legal principle beyond applying those precedents and the statutory/regulatory framework.

This summary is drawn exclusively from the content of the provided judicial opinion and does not introduce facts or inferences beyond those contained in that opinion.

Show full summary ...

    Mohammad Aakil Petitioner v. State Of U.P & 4 Others S

    Hon'ble Tarun Agarwala, J.

    Hon'ble Shri Narayan Shukla, J.

    Heard Mr. Dev Brat Mukherjee, the learned counsel for the petitioner, Mr. Shashi Nandan, the learned Senior Advocate along with Mr. Madan Lal Srivastava for the respondents and the learned Standing Counsel for the State.

    For facility, the facts of Writ Petition No. 38034 of 2014, Mohammad Aakil v. State Of U.P. are being taken into consideration.

    The petitioner has prayed for the quashing of the mining leases dated 24.05.2014 and 26.05.2014 granted in favour of respondents no. 4 and 5 at Plot No. 6229 (kha) admeasuring 5.00 Acres Village-Billi Markundi, Obra, Tahsil-Robertsganj, District-Sonebhadra being in violation of the judgement of the Hon'ble Supreme Court in Deepak Kumar v. State of Haryana, (2012) 4 SCC 629 as well as Nar Narain Mishra v. State of U.P, 2013 (2) ADJ 166 (DB) decided by this Court.

    The grant of mining leases is governed under the Mines and Minerals (Development and Regulation) Act, 1957 (in short ‘the Act’) as well as the Rules framed thereunder i.e U.P Minor Minerals (Concession) Rules, 1963 (in short ‘the Rules, 1963’). The Rules, 1963 provide two method for grant of lease: one is under Chapter-II on the applications moved in form MM-1, another is under Chapter-IV by auction or by tender or by auction-cum-tender. After declaration of the State Government, Rule 24 of the Rules, 1963 empowers the State Government to withdraw any area by declaration made under Sub-rule (1) of Rule 23 from any system of lease referred under the Rules and, after declaration, the provisions of chapter second, third and sixth of the Rules becomes applicable to area or areas.

    The facts as undraped by the petitioner are that on 16.10.2004, the entire mining of the State was declared for grant of mining lease in accordance with the provisions provided under Chapter-II of the Rules, 1963. On 18.07.2009, the District Magistrate, Sonebhadra invited applications from public at large for settling two mining plots under Chapter-II of the Rules. Pursuant to the Government Order dated 16.10.2004 The said Notification also included the plot in question. The petitioner applied for mining lease on the prescribed form i.e MM-1 after completing all the requisite formalities. There were 34 applicants for grant of leases. These applications were pending consideration. In the meantime, the District Magistrate, Sonebhadra issued letter dated 10.08.2010 intimating that the notice dated 17.07.2009/18.07.2009 was rejected. Consequently all the applications moved for grant of lease pursuant to the said notice stood rejected. However, the respondent no. 2 entertained the applications of the respondents no. 4 and 5 dated 09.09.2009 and granted mining leases to them in the month of May, 2014.

    Learned counsel for the petitioner, Mr. Dev Brat Mukharjee, submitted that in the meanwhile, the State Government on 30.05.2012 declared the entire mining area of Uttar Pradesh for grant of lease under Rule 23(1) of the Rules. The validity of the Government Order dated 31.05.2012 as well as consequential notices issued by the District Magistrate were challenged before this Court in Nar Narain Mishra v. State of U.P (supra). This Court upheld the validity of the Government Order dated 31.05.2012 but having found certain discrepancies in issuing notice for E-Tendering it quashed the same and directed the State Government for ETendering after amending the Rules of 1963. It is worth mentioning here that during the pendency of the case of Nar Narain Mishra (supra), the State Government notified the 35th Amendment in the Rules of 1963 by which it incorporated a limited amendment under Rule 10 as under:-

    “Minimum area for grant of mining lease shall be 5 hectares”

    The learned counsel for the petitioner submitted that the respondent no. 2 granted lease in favour of the respondents no. 4 and 5 contrary to the judgment of this Court as the area of lease granted to them was less than five hectares. It was contended that the State Government issued a Circular dated 26.02.2013 to all the District Magistrates to the effect that all the applications for grant or renewal of mining leases, which were pending consideration on 31.05.2012 shall be treated as cancelled in compliance of order passed in Nar Narain Mishra's case (supra).

    On the basis of the aforesaid factual backdrop, the learned counsel for the petitioner stated that once a notice for grant of lease itself was cancelled on 31.05.2012 inasmuch as this Court in Nar Narain Mishra's case restricted the grant of mining leases of the area less than five hectares, there was no occasion for the respondent no. 2 to grant the lease in favour of the respondents no. 4 and 5.

    Counter affidavit filed on behalf of the respondents no. 2 and 3 admits the cancellation of Advertisement No. 279 dated 17.07.2009 on the condition that all the applicants, who had filed application for grant of mining lease pursuant to the Advertisement dated 17.07.2009 were required to move fresh applications. The subsequent advertisement was published on 11.08.2010 One Mr. Sulekhan Singh and company along with respondents no. 4 and 5 challenged the said publication of inviting the applications through Civil Misc. Writ Petition No. 51321 of 2010. This Court disposed of the writ petition on 13.01.2011 directing the respondents no. 4 and 5 to avail the alternate remedy under Rule 78 of the Rules, 1963 before the State Government. Consequently they filed revision before the State Government, who rejected the same.

    Aggrieved respondents no. 4 and 5 filed Civil Misc. Writ Petition No. 54211 of 2011. This Court quashed the order passed by the State Government and issued direction to the Director of Mining to proceed with the recommendation forwarded by the District Magistrate as per his letter dated 20.07.2010 in accordance with law. This Court also made certain observations for consideration of the Director of Mining in compliance of the order passed by this Court. The Director of Mining passed an order on 17.03.2012 and authorised the District Magistrate to grant the leases and further issued direction to take further action for execution of lease on the format-‘Ka’.

    Since the Hon'ble Supreme Court in Special Leave Petition (Civil) No. 19628-19629 of 2009, Deepak Kumar v. State of Haryana (supra) had issued a direction on 27.02.2012 to the effect that no mining lease shall be granted/renewed for less than five hectares without obtaining Environmental Clearance Certificate from the concerned authority, the State Government also issued a Circular on 31.05.2012 to the District Magistrate of the State to comply with the directions of the Hon'ble Supreme Court.

    Aggrieved respondent no. 5 filed another writ petition i.e Civil Misc. Writ Petition No. 44813 of 2012. As his application was complete in all respect, this Court on 28.05.2013 issued direction to the District Magistrate to issue letter to the respondent no. 4 for bringing Environmental Clearance Certificate from the competent authority. In furtherance thereof, the respondent no. 4 was asked to submit Environmental Clearance Certificate. The State Government also introduced an amendment in the Rules of 1963 known as the 35 Amendment whereby it fixed the minimum area of five hectares for grant of a mining lease. The respondent no. 4 submitted the Environmental Clearance Certificate and also filed another writ petition bearing No. 12622 of 2012 in which this Court passed the order on 23.04.2014 in compliance of which the mining lease over the plot no. 6229-kha admeasuring an area of five acres was granted.

    The respondents no. 4 and 5 had come forward to contest the matter and filed a counter affidavit. They have stated that pursuant to the notice dated 18.07.2009, they applied for grant of mining lease and, on the basis of the preferential right, the lease in question had been determined in their favour. They do not deny the factum of cancellation of notice, filing of the writ petition no. 51321 of 2010 as well as the order passed by this Court on 29.09.2010 dismissing the writ petition on the ground of alternate remedy. They have also admitted the fact of filing of the revision before the State Government as well as its dismissal by the State Government then again filing another writ petition no. 54211 of 2011 in which direction was issued by this Court to the Director of Mines to pass an appropriate order as also the direction issued by the Director of Mines to the District Magistrate to take necessary action for execution of lease. Thus, it is stated that the leases have been granted to them under the cover of order passed by this Court at different stages over which the declaration made by the State Government under Rule 23(1) of the Rules of 1963 has had no force. These answering respondents in order to save their leases claimed the protection of order passed by this Court at different stages.

    It is not in dispute that their applications for grant of lease had not been disposed of prior to the date of declaration made under Rule 23(1) of the Rules of 1963 and they had been granted the lease by means of order dated 24.05.2014 and 26.05.2014, after the date of declaration, i.e 31.05.2012 In Nar Narain Mishra's case, this Court held that those petitioners, who have claimed mandamus for directing consideration of their lease renewal application, which were pending on 31.05.2012 could not be granted any relief. Similarly applications for grant of fresh lease under Chapter-II of the Rules 1963, which were pending on 31.05.2012 could also not be directed to be considered.

    In Public Interest Litigation (PIL) No. 31643 of 2014, Sukhan Singh v. State of U.P This Court has considered the judgment of the Hon'ble Supreme Court rendered in Deepak Kumar's case (supra) as well as judgment of this Court in Nar Narain Mishra's case (supra) and has held that “The basic position in law is that the mere filing of an application either for the grant of a lease or for the renewal of a lease does not confer a vested right for the grant or renewal of a lease and, an application has to be disposed of on the basis of the rules as they stand on the date of the disposal of the application.”

    In the case on hand, the respondents no. 2 and 3 granted lease in favour of the respondents no. 4 and 5 ignoring the facts that the notice dated 18.07.2009, which invited the applications itself was cancelled on 10.08.2010 After cancellation of the notice inviting applications, there was no occasion for the respondents no. 2 and 3 to consider the matter for grant of lease in favour of the applicants, who had applied pursuant to the said notice that too after declaration of area under Rule 23(1) of the Rules of 1963 and issuance of the Government Order dated 22.10.2014 whereby the earlier Government Orders including the Government Order dated 31.05.2012 issued under Rule 23(1) of the Rules of 1963 have been superseded and the declaration made by the State Government under those orders have been revoked with immediate effect. The Government Order further speaks that all the applications submitted pursuant to the different Government Orders mentioned therein as well as proceeding initiated pursuant thereto stood cancelled.

    Through supplementary affidavit, the respondents no. 2 and 3 have brought on record the 37 Amendment of the Rules of 1963, which is called “The Uttar Pradesh Minor Mineral (Concession) (37 Amendment) Rules, 2014”.

    By this amendment, several directions issued by this Court as well as Hon'ble Supreme Court have been incorporated. The State Government has also issued a Government Order dated 22.10.2014 whereby provisions 2, 3 and 6 of the Rules of 1963 have been made applicable. The Government Order also requires a fresh exercise for grant of lease under the terms of Government order dated 22.10.2014 as well as under the provisions of 37 Amendment of the Rules of 1963. Several subsequent developments in the matter as has been made as discussed above, do not lead us to permit the respondents no. 4 and 5 to operate their leases further.

    The issue raised in Writ Petition No. 38064 of 2014 is the same as in Writ Petition No. 38034 of 2014. In Writ Petition Nos. 12622 of 2014 and 12663 of 2014, the petitioners have prayed for issuance of a writ of mandamus commanding the District Magistrate concerned to execute the mining lease in their favour in respect of the plots in question. Therefore, in the terms discussed above, we are of the view that the relief as sought by the petitioners, in these two writ petitions, cannot be granted.

    In the result, Writ Petition Nos. 38034 of 2014 and 38064 of 2014 are allowed. The lease granted in favour of respondent nos. 4 and 5 by the District Magistrate, Sonebhadra, respondent no. 2, by orders dated 24.05.2014 and 26.05.2014 on plot no. 6229(Kha) measuring five acres in Village-Billi Markundi, Obra, Tahsil-Robertsganj, District-Sonebhadra is quashed. The District Magistrate is directed to stop the mining forthwith.

    In view of the aforesaid, Writ Petition Nos. 12622 of 2014 and 12663 of 2014 are dismissed.

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    Mohammad Aakil Petitioner v. State Of U.P & 4 Others S
    (Dec 15, 2014)