HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 9 Case :- WRIT - C No. - 35257 of 2015 Petitioner :- Om Prakash Respondent :- State Of U.P. & 3 Others Counsel for Petitioner :- Lal Pratap Singh,Amit Upadhyaya Counsel for Respondent :- C.S.C. And Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 35233 of 2015 Petitioner :- Rafiq Ahmad Respondent :- State Of U.P. & 4 Others Counsel for Petitioner :- Shashi Prakash Rai,Arvind Srivastava Counsel for Respondent :- C.S.C.,Manish Goyal Hon'ble Arun Tandon,J.
Hon'ble Mrs. Sunita Agarwal,J.
The writ petition and the connected public interest litigation, have been filed basically for challenging the action of the State-authorities in granting renewal, in respect of the leases for excavation of minor minerals under the Uttar Pradesh Minor Minerals (Concession) Rules 1963 (hereinafter referred to as the 'Rules, 1963'), as well as in respect of extensive use of heavy machineries by such lease holders for excavation of minor minerals contrary to the mining plan/environmental clearance issued in their favour in clear violation of the judgment of the Apex Court in case of Deepak Kumar Vs. State of Haryana reported in 2012 (4) SCC 629.
The writ petition and the public interest litigation raise common question of public interest and have therefore, been clubbed together.
Will this Court wait for indefinite period so that the officers of the State may understand that they owe their allegiance to the State and its public and not to their political bosses and the Contractors of mines.
Repeatedly, writ petitions are being filed before this Court pointing out that the judgments delivered by Division Benches of this Court are being flouted with impunity by the highest officers of the State including the Secretary, what to talk about the District Magistrate.
A Division Bench in the case of Nar Narain Mishra Vs State of U.P. and others reported in 2013(2) ADJ 166 after interpreting the Government Order dated 31.5.2012 recorded as principle of law, that once notification has been published by the State Government in exercise of powers under Rule 23 of the Rules 1963, for vacant areas being available for grant of leases under Chapter IV of Rules, 1963, no grant/renewal on the pending applications can be made, after 31.5.2012. The State was not satisfied with the legal position so explained. It came out with a Government Order dated 26.2.2013, which provided that pending applications, for renewal/grant in respect of which orders of approval have already been made by the State Government or by the competent authority shall not be controlled by the judgment in the case of Nar Narain Mishra (Supra) such cases may be processed further.
This Government Order dated 26.2.2013 came up for consideration before another Division Bench of this Court in the case of Sukkhan Singh Vs. State of U.P. and others reported in 2014(11) ADJ 89. The Division Bench has held that the Government Order dated 26.2.2013cannot deviate from the legal position, as has been explained in the case of Nar Narain Mishra (Supra).
It, therefore, follows that no application which was pending on 31.5.2012 can be proceeded with for grant/renewal of lease under Chapter II/VI of the Minor Minerals Concession Rules, 1963 after 31.5.2012. The grant, if any, after 31.5.2012 can only be made under Chapter IV of the Rules of 1963 i.e. by e-auction or tendering. The State and its Officers have shown little or no respect to the orders of this Court.
Civil Misc. Writ petition No.35257 of 2015 has been filed for quashing of the orders dated 9th October, 2013 and dated 14th October, 2013 issued by the State Government and the District Magistrate, Fatehpur respectively in respect of mining plot situate at Khand No.A-5, Village Ardhawal, Pargana Muttaur, District Fatehpur. Petitioner also seeks quashing of the execution/registration of mining lease in favour of respondent no.4 as per order dated 17th October, 2013.
Public Interest Litigation (PIL) No.35233 of 2015 has been filed for quashing the orders/letters dated 17th April, 2013 issued in favour of respondent no.4 for Zone No.12, Khand No.15, Zone No.11 and Khand No.31 and in favour of respondent no.5 in respect of Zone No.12, Khand No.13 and letter/notice dated 1st May, 2013. Petitioner has also prayed for a writ of certiorari cancelling the lease deed executed on 27th April, 2013 and dated 29th may, 2013 for Zone no.11 and Khand no.29.
We further find that writ petitions are filed both before the Lucknow Bench as well as before this Bench in respect of grant of lease of minor minerals, as well as in respect of use of heavy machines in excavation. Orders passed by Lucknow Bench as well by this Bench, at times create a difficult situation becuse of the conflict therein. Directions issued by the different Benches in different writ petitions on identical issues, complicate the matter instead of resolving the controversy.
We are of the considered opinion that, all the issues in respect to grant of lease of minor minerals, subsequent to issuance of the Government Order dated 31.5.2012, in the light of the judgments of this Court in the case of Nar Narain Mishra (Supra) and Sukkhan Singh (Supra) must be resolved once for all, so that the Officers of the State may act in accordance with law as declared by the High Court and further excavation is undertaken in accordance with the directions of the Apex Court in the case of Deepak Kumar (Supra).
We, therefore, request Hon'ble the Chief Justice to constitute a Special Bench for hearing all the writ petitions pertaining to grant of leases of minor minerals in the State of Uttar Pradesh as may be pending; both before the High Court at Allahabad as well as before the Lucknow Bench. The hearing of these writ petitions may be taken up on day to day basis.
We, further request Hon'ble The Chief Justice to issue appropriate orders for listing of all such petitions pertaining to minor, minerals, if possible in the 3rd week of July, 2015, itself.
An affidavit has been filed by Sri Mukesh Prasad stating that the lease had been granted in favour of his clients with reference to an advertisement published in the year 2008 and that their applications remained pending during all this period of about five years. It is also stated that lease has been approved as per Chapter VI on 11.5.2012, and, therefore, the judgment and order passed in the case of Nar Narayan Mishra (Supra) and Sukkhan Singh (Supra) has no application in the present case.
Prima facie, we find no substance in the contention raised. In our opinion, once a notification dated 31.5.2012 had been issued declaring that all the vacant areas are available for grant of lease only under Chapter IV, no lease subsequent thereto under Chapter VI could be executed. The area remains vacant till the execution of the lease deed. The Execution of the lease in the facts of the case has taken place after 31.5.2012. Mere grant/approval in our opinion will not alter the legal position.
The concern of the Court is both, in respect of best use of natural resources by the State as well as for avoiding the degradation of environment, especially near the river beds.
In the facts of the case we find that leases have actually been executed in favour of the persons on the basis of the application which were admittedly pending on 31.5.2012. Therefore, in view of the judgment of the Division Benches of this Court in the cases of Nar Narain Mishra and Sukhan Singh (referred to above), which judgments are stated to have been approved by the Apex Court with the dismissal of the S.L.P. filed against the said orders, we are satisfied, that a case for grant of interim order is made out.
We may record that this Court is conscious of the fact that one of basic principle for grant of interim order is that the petitioner must approach the Court at the earliest. We are also conscious of the fact that interim orders are granted to maintain the status as is prevailing on the date of institution of the proceedings. But both these principles admit of exceptions e.g. when larger public interest is involved.
We, therefore, direct that till the next date of listing no further excavation of minor minerals shall be permitted to be undertaken by respondent No.4 in respect of the lease deed executed on 17.10.2013.
Order Date :- 18.6.2015 Dev/-
(Mrs. Sunita Agarwal,J.) (Arun Tandon,J.)