Jagdish Prasad Nishad vs State Of U.P. & 6 Others
2015 Latest Caselaw 99 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 21                                                          A.F.R.       
 
Case :- WRIT - C No. - 12136 of 2015
 

 
Petitioner :- Jagdish Prasad Nishad
 
Respondent :- State Of U.P. & 6 Others
 
Counsel for Petitioner :- Anurag Khanna
 
Counsel for Respondent :- C.S.C.,Manoj Kumar Dwivedi,Mohit Kumar Shukla,Sudeep Harkauli
 

 
Hon'ble Vikram Nath,J.

Hon'ble Raghvendra Kumar, J.

(Delivered by Hon'ble Vikram Nath, J.)

This petition has been filed by one Jagdish Prasad Nishad, praying for issuance of writ of certiorari quashing four orders, collectively filed as Annexure 1, issued by the State Government dated 4.12.2012, bearing nos.3558, 3559, 3557 and 3599, whereby respondent nos.4 to 7 have been allowed to carry on mining activity for the obstructed period of their lease. Further relief claimed by the petitioner is to command the respondent authorities to restrain respondent nos.4 to 7 from carrying on any mining activity pursuant to the aforesaid four impugned orders, filed as Annexure 1. Lastly, it has been prayed that the respondent authorities be directed to settle the areas in question afresh in accordance with the provisions of the U.P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as the 1963 Rules).

In para 5 of the petition it has been stated that the respondent nos.4 to 7 were granted mining lease for a period of three years in the year 2010 and the respective lease period is given as follows-

"for respondent no.4- from 04/1.2010 to 03/01/2013

for respondent no.5- from 02/2.2010 to 01/02/2013

for respondent no.6- from 22/1.2010 to 21/01/2013

for respondent no.7- from 18/1.2010 to 17/01/2013"

The challenge to the impugned orders, extending the period of mining activity is firstly that the State Government had no competence or authority under the 1963 Rules framed under the powers conferred under Mines Minerals (Regulations and Development) Act, 1957 (hereinafter referred to as the 1957 Act). The petition also contains some averments to the effect that the petitioners are using machines for their mining work which is not otherwise permitted under law, and in particular in view of the judgment of the Apex Court dated 27.02.2012, passed in Special Leave Petition (Civil) Nos.19628 and 19629 of 2009, Deepak Kumar etc. Vs. State of Haryana and Others etc.

The State filed counter affidavit. State Government in its counter affidavit justified its competence and power as being flowing from Rule 68 of the 1963 Rules and further relied upon the judgment of the Apex Court dated 19.09.2013, passed in Civil Appeal No.8621 of 2013, J.P. Yadav vs. Kanhaiya Singh and others, wherein the Apex Court had held that any obstructed period could be extended by the State while exercising its powers under Rule 68 of 1963 Rules. The Counter Affidavit further mentions that in view of the judgment of the Division Bench of this Court in the case of Mohd. Kausar Jah vs. Union of India and others, reported in 2011 (5) ADJ 125 (DB)(LB) the mining activity of respondent nos.4 to 7 was stopped w.e.f. 1.7.2011 as the petitioners did not have the 'environmental clearance certificate' from the State Level Environment Impact Assessment Authority, but later on as the 'environmental clearance certificate' was obtained by the respondents 4 to 7 their request was duly considered and their period of mining for the obstructed period was extended. The State also took a preliminary objection that the petitioner had no locus to maintain the petition as it was not suffering from any legal injury.

The State also filed an affidavit duly sworn by the District Magistrate, Banda as was required by this Court.

The petitioner filed a very detailed rejoinder affidavit annexing large number of judgments alongwith it. An additional point was raised in the rejoinder affidavit that as the respondent nos.4 to 7 did not have the 'environmental clearance certificate' at the time of the initial grant of lease in the year 2010, their lease would be void ab initio as it was in violation of the circular of the Ministry of Environment and Forest dated 14.09.2006, which made it mandatory for all applicants for mining lease to obtain an 'environmental clearance certificate' from the State Level Environment Impact Assessment Authority. That being the situation of the original lease itself being void, no extension with regard to a void lease could be granted even for the obstructed period. It was also stated in the rejoinder affidavit that the judgment in the case of Mohd. Kausar Jah (supra) had declared all mining leases obtained without 'environmental clearance certificate' to be void only with a rider that two months time was granted to the subsisting lessees to obtain the 'environmental clearance certificate' till 30.06.2011. The Division Bench further restrained all mining activities with regard to the mining leases not accompanied by 'environment clearance certificates' w.e.f. 01.07.2011.

The respondents 4 to 7 have not filed any counter affidavit and have chosen to argue in opposition to the writ petition without counter affidavit.

We have heard Ms. Kamini Jaiswal, learned counsel assisted by Shri Anurag Khanna, Advocate for the petitioner, Shri Alok Kumar Singh, learned Standing Counsel representing State-respondents, Shri Ravi Kant, learned Senior Counsel assisted by Shri Mohit Kumar Shukla, Advocate for respondent no.5, Shri Sudeep Harkauli, Advocate representing respondent no.6 and Shri Amit Saxena, Advocate representing respondent no.7.

We have dealt with the arguments raised on behalf of the petitioner as also the preliminary objection raised by the respondents under respective headings-

LOCUS STANDI OF THE PETITIONER

Mining lease to the respondents 4 to 7 were issued in the year 2010. The present petition as it was originally filed did not challenge the validity of the original lease of 2010. The petitioner has not alleged that he was an applicant for grant of lease in the year 2010 against the advertisement issued by the State Authorities. In the writ petition the petitioner has described himself as prospective allottee for the area in question in case any fresh settlement is made. Such facts have been stated in paragraph 4 of the petition. This is the only interest or right claimed by the petitioner for maintaining the petition.

Sri Alok Kumar Singh, learned Standing Counsel has submitted that unless and until a person who has suffered or suffers legal injury alone can maintain challenge to an act, action or order of an authority in a Court of law. In support of his submission reliance has been placed upon a judgment of the Apex Court in the case of Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra and Ors. reported in AIR 2013 Supreme Court 58. In the said case the appellant was issued caste certificate that he belonged to Scheduled Tribe, to which challenge was given by respondent no.5 before Bombay High Court by way of writ petition. The said writ petition was disposed of and the matter was remitted to the scrutiny committee with a direction to hear all the parties concerned in accordance with law and to decide the matter within a period of six months. The said order of the Bombay High Court was assailed before the Apex Court. One of the questions raised was whether the complainant therein had right to maintain the writ petition. Supreme Court dealt with the issue of locus in detail as to whether the complainant was a person aggrieved or not and whether he has a legal right or not to maintain the petition. In paragraph 15 Apex Court summarised the law relating to the person aggrieved in the following words 'a person who raises the grievance, must show how he has suffered legal injury. Generally, a stranger having no right whatsoever to any post or property, cannot be permitted to intervene in the affairs of others.' Thereafter Supreme Court went on to deal with the issue of locus standi. In paragraph 22 the Apex Court after dealing with the law on the point summarised that 'a third person, having no concern with the case at hand, cannot claim to have any locus-standi to raise any grievance whatsoever. However, in the exceptional circumstances as referred to above, if the actual persons aggrieved, because of ignorance, illiteracy, inarticulation or poverty, are unable to approach the court, and a person, who has no personal agenda, or object, in relation to which, he can grind his own axe, approaches the court, then the court may examine the issue and in exceptional circumstances, even if his bona fides are doubted, but the issue raised by him, in the opinion of the court, requires consideration, the court may proceed suo motu, in such respect'.

On the other hand, Ms. Jaiswal, appearing for the petitioner submitted that as the action of the State respondents is violative of the rules, the petitioner had suffered legal injury. It is further submitted that the petitioner being prospective allottee, in case an area is settled afresh he could participate and as such has locus to maintain the petition. Reliance has been placed upon the following three judgments-

(i)Shiv Charan Sharma vs. Union of India and others, reported in 1981 ALL. L.J 641.

(ii) M.S. Jayaraj vs. Commissioner of Excise,

Kerala & Others reported in (2000) 7 SCC 552.

(iii) Satya Pal Tomar vs. State of U.P. and

others in Writ -C No.14098 of 2014.

In the judgment of Shiv Charan Sharma (supra) the petitioner therein was an applicant for grant of lease. We have no manner of doubt that the applicant for grant of lease would be an interested person to challenge the grant in case it is in violation of the established and laid down procedure or if he can establish that he had a better claim than the person in whose favour lease is granted. In the present case there is no averment that the petitioner was an applicant for grant of lease against the advertisement pursuant to which the respondents 4 to 7 were granted lease. This case is thus distinguishable on facts and does not help the petitioner.

In the case of M.S. Jayaraj (supra) the Apex Court was of the view that an order which has been passed in violation of law cannot be allowed to continue to remain alive and operative once it has come to the knowledge of the Court, only on the ground that the petitioner has no locus to maintain the petition. In the present case the respondent's contention that the State had the power to extend the period of lease for the obstructed period under Rule 68 of the 1963 Rules, and further that by granting the extension no violation has been done to the law laid down in the case of Mohd. Kausar Jah (supra). We are of the view that the present petition cannot be maintained by the petitioner and this judgment also cannot be of any help to the petitioner.

In the case of Satya Pal Tomar (supra) also we find that the original lease was granted in the year 2003 for a period of 3 years. In 2006 before expiry of 3 years the respondent no.5 therein moved application for extension of 231 days. Before the Lucknow Bench respondent no.5 gave up his claim for extension and only pressed for refund of royalty. It was in these circumstances the Court was of the view that the grant of extension to be totally illegal. The situation in the present case is quite different as such this judgment does not help to the petitioner. Further the judgment in the case of J.P. Yadav (supra) was not considered in as much as it was delivered later.

For all the reasons recorded above we hold that the petitioner being prospective allottee and having not participated in the proceeding for the grant of lease in the year 2010 is not a suitable person to challenge lease after five years taking a cue from the extension order, which is in continuation of the lease and not a fresh settlement.

INTERPRETATION AND THE FACTS OF THE JUDGMENT IN THE CASE OF MOHD. KAUSAR JAH

Copy of the judgement in the case of Mohd. Kausar Jah has been filed alongwith rejoinder affidavit filed by the petitioner as Annexure RA 1. The notification dated 14.09.2006 of the Ministry of Environment and Forest was issued in statutory exercise of powers conferred under the Environment Protection Act 1986 and Rules framed therein. It directed that on and from the date of its publication the required construction of new projects or activities listed in the schedule to the notification would be undertaken in any part of India only after prior environmental clearance from either the Central Government or the State Level Environmental Impact Assessment Authority. The said notification was not being implemented for grant of mining lease till 2011. It was only after the judgment in the case of Mohd Kausar Jah (supra) that in the State of U.P. it was made compulsory before the grant of lease on any mining activity. The 'environmental clearance certificate' from the State Level Impact Assessment Authority was made mandatory. The Government of U.P. stopped all mining activity under the leases which did not comply with this condition. The judgment in Mohd. Kausar Jah (supra) dealing with the subsisting leases had provided that such lease holders would continue with the mining activity till 30.06.2011 and in the meantime would approach and obtain the 'environmental clearance certificate' from the competent authority i.e. State Level Environment Impact Assessment Authority. It had further restrained all mining activity without the 'environmental clearance certificate' w.e.f. 1.7.2011. This judgment of the High Court was strictly followed by the State Government and the respondents 4 to 7 as they did not have the 'environmental clearance certificate', were restrained from continuing with any mining activity w.e.f. 01.07.2011. Relevant portion of the judgment in the case of Mohd Kausar Jah (supra) is reproduced below-

"55. We have, therefore, no hesitation in holding that the notification dated 14.09.2006 would cover mining which, if not project, will fall within the expression 'activity'. The last contention, therefore, must also to be rejected.

56. Having said so, the question that comes for our consideration is whether we should forthwith ban total mining in respect of mining leases who do not have the necessary clearances under the notification dated 14.9.2006. In our opinion, though prior clearance is mandatory, the approach of this Court on the present facts and circumstances while granting reliefs under Articles 226 and 227, must be to sub serve the larger public interest. Public interest also would mean availability of raw material to the public in general at reasonable rates and also not to deprive the workers; who are working, their right to life, guaranteed under Article 21 of the Constitution. Considering these two aspects, we pass the following directions in Writ Petition No.9614 (M/B) of 2010"

(A) In respect of mining leases whose period expired after coming into force of the notification dated 14.9.2006, as also in respect of new mining leases granted subsequent to 14.9.2006, it is mandatory to obtain environmental clearance under the Notification dated 14.9.2000. Many holders of mining leases from the district Saharanpur have applied for environmental clearance and their applications are pending and as there was some dispute as to whether minor minerals, include sand/silica falling within the definition of mining minerals, we grant time till 30.6.2011 to carry on the mining operations"

(B) The State Government to ensure as on 1.7.2011 that no person anywhere in the State will carry out any mining activity of minor minerals including sand/silica based on the mining leases, which do not have the environmental clearance under the notification of 14.9.2006.

(C) The State to take steps to implement the report of the Committee appoint4ed in Noor Mohammad v. State of U.P. (supra) pursuant to direction dated 6.3.2009 as referred in para 20 of the judgment and the letter dated 1st June, 2010 from the Ministry of Environment & Forest, Government of India".

From a perusal of the above, we may note that intention of the Division Bench in the judgment of Mohd. Kausar Jah (supra) was to ensure that mining activity with regard to subsisting leases would continue beyond 01.07.2011 only upon submission of 'environmental clearance certificate' from the competent authority i.e. State Level Environment Impact Assessment Authority. The Division Bench nowhere held that all the leases were void and liable to be cancelled. It simply provided that henceforth mining activity may not be carried out by the subsisting lease holders without obtaining 'environmental clearance certificate'. The State Government restrained the respondents 4 to 7 from carrying out any mining activity after 01.07.2011 as they did not possess the 'environmental clearance certificate' till then. Respondents 4 to 7 have admittedly obtained 'environmental clearance certificate' from the competent authority i.e. State Level Environment Impact Assessment Authority and it was only thereafter that they requested the State Government to extend their lease for the obstructed period. There were large number of similar cases before the State Government. The State Government in its turn has issued a Government Order dated 04.03.2013 whereby policy decision was taken that where mining activity has been stopped on account of lack of 'environmental clearance certificate', but which was subsequently obtained, such leased holders may be allowed his time for which he was obstructed. This Government Order is based upon the powers vested in the State under Rule 68 of 1963 Rules. The case of the petitioner is covered under the said provisions as contained in 1963 Rules as also the fact that the respondent 4 to 7 obtained 'environmental clearance certificate' and had only thereafter applied for extension. Since respondents 4 to 7 were squarely covered by the Government Order, they were granted extension.

In the case of J.P. Yadav (supra) the Supreme Court while dealing with Special Leave Petition preferred by the lease holders against the judgment of the High Court by which the extension period had been quashed the Apex Court set aside the order of the High Court and directed the State Government to give effect to the extension of lease. The lessee in the said case had also been stopped from carrying out any mining activity on the ground of the lack of any 'environmental clearance certificate'.

Having considered the submissions we are of the view that the arguments of the petitioners that lease granted without 'environmental clearance certificate' in view of the judgment of Mohd. Kausar Jah (supra) was void is also liable to be rejected.

CHELLENGE TO THE POWER OF THE STATE GOVERNMENT TO GRANT EXTENSION.

Rules 68 of 1963 Rules is reproduced as under under-

"68. Realisation of rules in special cases.- The State Government may, if it is of opinion that in the interest of mineral development it is necessary so to do, by order in writing and for reasons to be recorded authorise in any case the grant of any mining lease or the working of any mine for the purpose of winning any mineral on terms and conditions different from those laid down in these rules."

The clear reading of the rule clearly indicates that the State Government was vested with the power to grant mining lease or for working of any mine in the interest of mineral development.

In J.P. Yadav (supra) Supreme Court set aside the order of the High Court which had taken into consideration only clause 11 of the agreement and had ignored Rule 68 of the 1963 Rules. The Supreme Court directed the State to give effect to its extension order. This clearly meant that the Supreme Court had recognised the power of the State Government for extension of lease to be within the scope and ambit of Rule 68 of the 1963 Rules. The judgment in the case of J.P. Yadav (supra) of the Supreme Court was followed by the Division Bench of this Court in its order dated 18.03.2015 passed in Misc. Writ Petition No.1829 of 2015, Rajendra Singh vs. State of U.P. and others.

We find no reason so as to take a different view and doing so would be doing violation to the view taken by the Supreme Court in the case of J.P. Yadav (supra)

For all the reasons recorded above, petition lacks merit and is accordingly dismissed but without any order as to costs.

Order Date :- 24.4.2015

RPS