Allahabad High Court

Niranjan Sewa Samiti And Another vs State Of U.P. And 4 Others on 10 July, 2018

Bench: Dilip B. Bhosale, Chief Justice, Yashwant Varma




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Chief Justice's Court
 

 
Case :- WRIT - C No. - 23153 of 2018
 

 
Petitioner :- Niranjan Sewa Samiti And Another
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Madan Lal Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Dilip B. Bhosale,Chief Justice
 
Hon'ble Yashwant Varma,J.

Heard Mr. S.G. Hasnain, learned Senior Advocate with Mr. Madan Lal Srivastava, Advocate for the petitioner and Mr. Pradeep Kumar Tripathi, learned Standing Counsel for the respondents-State.

This petition has been preferred seeking a direction upon the second respondent to permit the petitioner to offer a higher bid after the finalisation of the e-tendering process in light of the provisions of Rule 23 (2) (b) and (c) of the U.P. Minor Minerals (Concession) Rules, 19631. A further direction is sought for the issuance of a certificate by the District Magistrate attesting that the petitioner is entitled to the benefits contemplated under the Rule aforementioned. The prayers themselves are addressed in the following backdrop.

According to the petitioner, he was the holder of a mining lease granted by the second respondent for the excavation of minor minerals. The lease deed, a copy of which has been placed on the record, was to run from 23 December 2006 to 22 December 2016. It is the admitted position that the lease was never extended after December 2016. Sri Hasnain further submits that the petitioner carried on no mining operations after 22 December 2016.

The State of U.P. in 2017 promulgated a new mining policy and also introduced various amendments in the 1963 Rules to enable the settlement of leases for minor minerals by way of e-tendering. The 43rd Amendment to the 1963 Rules recast Rule 23. The relevant parts of amended Rule 23 are extracted hereinbelow:

"23. Declaration of area for e-tender/e-auction/e-tender cum e-auction lease-

(2) ........

(a) ........

(b) New area of natural rocks of building stones and earlier leased area/areas, which has/have been treated as redeemed after expiration of period of lease and will not be renewed, may be leased for a maximum period of twenty years only through the process of e-tender/e-auction/e-tender cum e-auction:

Provided that the earlier lease-holder of the concerned lease area whose lease had determined recently has to be accommodated an opportunity to offer bid of higher amount than the highest bid shorted out for the concerned lease, within one working-day after the finalization of the entire process of e-tender/e-auction/e-tender cum e-auction and before issuance of letter of Intent, before the District Magistrate having terriotrial jurisdiction over the concerned lease area however with conditions that:-

(i) the character of the earlier lease-holder bears good conduct;

(ii) he has abided fairly all the norms during the course of the entire lease period;

(iii) he has no any due amount concerning mineral/mining;

(iv) his name is not mentioned inter alia black list;

(v) he has been a lease-holder of the concerned area or more than that area and has produced certified document/s concerning the same;

(vi) he has participated for bid as per the prescribed process/procedures through e-tender/e-auction/e-tender cum e-auction with the required proper document/s concerning the e-tender/e-auction/e-tender cum e-auction.

(c) Naturally available rock type such mining deposit which had been defined earlier as major mieral and that has been declared minor mineral, vide Notification no. 422 dated 10.02.2015 issued by the Government of India and new mining area containing embedded granites (sized dimensional) shall be leased out as prospecting license cum mining lease for the maximum period of thirty two years in one term through the proper process of e-tender/e-auction/e-tender cum e-auction, however out of the above mentioned period of thirty two years, two years period will be reserved for prospecting works and on being proved availability of mining the lease period shall be for maximum thirty years.

If any area has remained on lease since before or availability of mineral has already been approved within the concerned area then in such cases the mining lease will be approved directly for a maximum period of thirty years;

Provided that the earlier lease-holder of the concerned lease area whose lease had determined recently has to be accommodated an opportunity to offer bid of higher amount than the highest bid shorted out for the concerned lease, within one working-day after the finalization of the entire process of e-tender/e-auction/e-tender cum e-auction and before issuance of Letter of Intent, before the District Magistrate having territorial jurisdiction over the concerned lease area with conditions that:-

(i) the character of the earlier lease-holder bears good conduct;

(ii) he has abided fairly all the norms during the course of the entire lease period;

(iii) he has no any due amount concerning minreal/mining;

(iv) his name is not mentioned inter alia black list;

(v) he has been a lease-holder of the concerned area or more than that area and has produced certified document/s concerning the same;

The claim of the petitioner is based on the proviso to sub-clause (b), which confers a right on an earlier lease holder to offer a bid of an amount higher than the highest bid received in the e-tendering process within one working day of the finalistion of the tender process. The said facility, which is accorded to an earlier lease holder is subject to him fulfilling the conditions prescribed therein. The crucial issue, which therefore needs to be answered, is whether the petitioner is entitled to the benefits flowing from the proviso appended to clause (b).

Even if we proceed on the assumption that the petitioner bears good conduct, had fairly abided by all the norms during the course of the entire lease period, has not been blacklisted, has no other dues outstanding, the answer to the question framed would clearly turn upon whether the petitioner is entitled to be treated as an earlier lease holder, "whose lease had determined recently". As noticed hereinabove, the earlier lease granted to the petitioner had ended on 22 December 2016. It is also not in dispute that this lease was not renewed and in any case, was not subsisting on the date when the area in question came to be included in the e-tender. It is also not the case of the petitioner that he was working the lease after its expiry.

While dealing with an identical issue relating to Rule 23 where too the interpretation of the phrase "....determined recently" had arisen, this Court while disposing of K.K. Stone Products Vs. State of U.P. & Ors.2 held that it must be interpreted to mean "in close proximity". In normal parlance, the word 'recently' would mean not long ago, newly or freshly or even a little while back. Essentially it would be liable to interpreted and understood as not being remote in point of time from the present.

The Oxford English Dictionary too defines the expression "recent" as under:-

"1. Lately done or made; that has lately happended to taken place etc.

3 a. Belonging to a (past) period of time comparitively near to the present.

4 a. Of a point or period of time: Not much earlier than the present; not long past."

Applying the meaning ascribed and noticed above, we are of the considered view that in order for a lease to qualify as being one which stood "...determined recently" it must necessarily be one whose term came to an end not long ago. The proximity and connect between its expiry and the present cannot be remote and in fact and to the contrary should be closer to what may be reasonably viewed as immediate. This we also hold since in the State of U.P. there was for quite a period of time, a complete ban on mining operations consequent to the injunctions issued by this Court on various petitions till the State came forward with a new mining policy which marked a paradigm shift from the procedure followed earlier for settlement of mining rights in respect of minor minerals.

Viewed from this angle, we find ourselves unable to hold that a lease, which had expired in December 2016 could for the purposes of Rule 23 (2) (b) or (c), be accepted or recognised as a lease which had determined recently. In view of the above we find the petitioner clearly not entitled to the benefits of Rule 23 (2) (b) or (c) and the provisos appended thereto.

Accordingly for the aforesaid reasons, we find no merit in the instant writ petition which shall consequently stand dismissed.

Order Date :- 10.7.2018

VKS

(Dilip B Bhosale, CJ)

(Yashwant Varma, J)