- (1.) B. D. Agarwal, J. This is a petition under Article 226 of the Constitution. On July 31, 1948 the petitioner was granted a prospecting licence under the U. P. Mining Concessions and Mineral Development Rules, 1948. Dispute arose between the parties with respect to the grant of a mining lease. This culminated in a compromise entered into on July 15, 1962. Lease deed was executed by the Stale Government in petitioner's favour on 26th August, 1968 for a period of twenty years reckoned from 15th July, 1962. The area covered under the lease lies in district Dehradun and the petitioner was granted therein the right to operate and win limestone, gypsum and dolomite in the leased area. The petitioner had continued to operate in the area during the intervening period of 15th July, 1962 to 25th August, 1968 for which royalties and other charges were also paid. On June 30, 1981 the petitioner applied under Rule 28 (1) of the Mineral Concession Rules, 1960 for the renewal of lease for another term of 20 years commencing on July 15, 1982. The application not being disposed of by the State Government the petitioner moved this Court in January, 1983 contending that in terms of Rule 31 (2) of the Mineral Concession Rules, 1960 the 20 year's period of the lease is to be deemed as having commenced on 26th August, 1968 when the instrument was executed and not 15th July, 1962 as stipulated therein. The petitioner has sought mandamus directing the respondents to treat the lease as subsisting up to August 25, 1988 and, in the alternative that the lease be renewed in accordance with law.
(2.) TWO questions were raised by the the petitioner's learned Counsel in this case - one whether the lease executed on 26th August, 1968 is to be considered as valid up to 25th August, 1988 and, secondly, in the alternative, whether the petitioner is entitled to renewal of the lease as per application made on June 30, 1981. Affidavits have been exchanged and with the consent of the parties' learned Counsel we dispose of the petition finally at the preliminary hearing. Learned Counsel for the petitioner referred to Rule 31 (2) of the Mineral Concession Rules, 1960 in support of his contention that the lease executed on 26th August, 1968 is valid for 20 years commencing from that date. Rule 31 (2) says - "the date of commencement of the period for which a mining lease is granted shall be the date on which the deed is executed under sub-rule (1)". 3a. Sub-rule (1) of Rule 31 provides that where on an application for the grant of a mining lease, an order has been made for the grant of such lease, a lease deed in Form K or in a form as near thereto as circumstances of each case may require, shall be executed within six months of the order or within such further period as the State Government may allow in this behalf. The petitioner's learned counsel argued that Rule 31 (2) is mandatory; in terms thereof the mining lease must be construed as having commenced on the date of its execution and the provision contained therein namely that the period be reckoned as commencing from 15th July, 1962 be discarded since this is in departure from Rule 31 (2) and arbitrary. We have given careful thought to the contention but are unable to agree. The law is settled that the use of the word "shall" is not conclusive. The governing factor is "the meaning and intent of the legislature, which should be gathered not merely from the words used by the legislature but from a variety of other circumstances and considerations. " The construction of this expression depends upon the provisions of a particular Act, the setting in which the expression appears, the consequences that would flow from the infringement of the direction and such other considerations: (See Govind Lal Chaggan Lal Patel v. Agriculture Produce Market Committee (AIR 1976 SC 263); Khub Chand v. State of Rajasthan (AIR 1967 SC 1074 at p. 10771 ). The same principle was expressed in Haridwar Singh v. Begum Sumbrui (1973) 3 SCC 889 at p. 895: (AIR 1972 SC 1242 at p. 1247) stating that "in each case one must look to the subject matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. "
(3.) IN Re. Presidential Election (19742 SCC 33 at p. 49) : (AIR 1974 SC 1682 at p. 1686) the principle stated is - "in determining the question whether a provision is mandatory or directory the subject matter, the importance of the provision the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duty of the Court to get at the real intention of the Legislature by carefully attending the whole scope of the provision to be construed. "the key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole. " " This was reiterated in Sharif-ud-Din v. Abdul Gani, (AIR 1980 SC 303) : (at p. 305-6) observing: - "in order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of the law is to be defeated by non compliance with it, it has to be regarded as mandatory. ";