R.P.Misra, Shishir Kumar - (1.) THE present writ petition has been filed for issuing a writ of certiorari quashing the order dated 26.12.2005, which was issued in pursuance of amended Rule 10 of U. P. Minor Mineral Rules, 1963. Further issuing a writ in the nature of mandamus declaring the amended Rule 10 of U. P. Minor Mineral Concession Rules, 1963, as ultra vires, which was incorporated in the Rules by twenty-six amendments. Further issuing a writ in the nature of mandamus directing the respondents to renew the mining lease of the petitioner for Lot No. 5 of Aarzi No. 1 of Village Pardrach, Tehsil Robertsganj, district Sonbhadra in pursuance of the order passed by the learned appellate authority dated 16.6.2006.
(2.) THE facts arising out of the present writ petition are that the petitioner by means of the present writ petition challenging the legality and validity of Rule 10 of the Rules, 1963, which was amended by (Twenty-Six Amendment) Rules, 2004, vide notice dated 26.12.2005, which was issued under the aforesaid amended Rule by office of respondent No. 2 by which he had consolidated the entire mining plot measuring area about 130 acres for grant of mining lease to a single person of his choice, which is totally unconstitutional and against the ambit and spirit of Mines and Mineral (Regulation and Development) Act, 1957, under which the aforesaid Rules of 1963, was enacted. THE petitioner is engaged in the profession of excavation of minor mineral such as moram and sand, from river of district Sonebhadra and this is the only livelihood of the petitioner. Throughout the State of Uttar Pradesh the excavation of Minor Mineral is governed by U. P. Minor Mineral Concession Rule 1963, which is enacted under Section 15 of the Central Act known as Mines and Mineral (Regulation and Development) Act, 1957. According to Rules, 1963, river bed side mineral such as, sand, moram is also one of the 'Minor Minerals' defined under the aforesaid rule of 1963, as such, the said rule is applicable. In the aforesaid rule there are two provisions of granting of concession. The first one is mining lease which comes under Chapter II of the aforesaid Rule 1963 and second one is auction lease which comes under Chapter IV of the aforesaid Rules, 1963. It is provided that the minings concession cannot be granted by way of Chapter II and Chapter IV simultaneously, it means that if Chapter II is applicable the procedure laid down under Chapter IV of the Rules shall not be applicable. On 30th December, 2000, the entire area of Uttar Pradesh was declared for the grant of Mining lease and in pursuance of aforesaid Government order, State Government withdraws auction lease system and imposed mining lease system according to Rule 24 of the Rules for the purposes of granting mining lease. In pursuance of the aforesaid Government order, the availability of the area were further declared under Rule 72 of the Rules, 1963 by various District Magistrate for grant of mining lease and same procedure was adopted by the office of the District Magistrate, Sonebhadra. On 19.1.2001, a public notice was issued by which applications were invited from the public at large for setting the various vacant mining area of district Sonebhadra by way of mining lease provided under Chapter II, of Rules, 1963. The said notice clearly goes to show that applications were invited on prescribed proforma that is Form MM-I. In pursuance of the aforesaid notice, the petitioner moved an application on duly prescribed proforma for Lot No. 5 Arazi No. 1 of Village Pardrach, Tehsil Robertsganj, district Sonebhadra on 27.1.2001 after completing the all requisite formalities. There was no other application neither of general category nor the category provided under Chapter 9A of the Rules, 1963 (at that time), as such, the petitioner was sole applicant for the aforesaid mining lot, mentioned above. The petitioner was granted the aforesaid lot for the purposes of mining lease by the respondent No. 2 on 27.2.2001. After fulfilling the criteria the petitioner was granted lease for the period 12.3.2001 to 11.3.2004 as on 12.3.2001 and he had started the mining business according to Rules. The lease of the petitioner was going to expire on 11.3.2004, as such, the petitioner had moved an application for renewal which was duly received by the office of respondent No. 2 on 8.9.2003. In spite of the best efforts made by the petitioner, the renewal application of the petitioner was not decided. Aggrieved by the aforesaid arbitrary action of the respondents, the petitioner preferred a Writ Petition No. 42200 of 2005, Shiv Shankar and others v. State of U. P. and others, which was disposed of finally by its order dated 26.5.2005, directing the respondents to dispose of the application of the petitioner. In spite of the aforesaid order, the application for renewal of the petitioner was not disposed of within time as directed by this Court. Then on 5.12.2005, the application was disposed of without application of mind holding therein that as the initial lease which was granted in favour of the petitioner that was under Rule 9A of the Rules, 1963, as such, it cannot be renewed. The petitioner submits that although the respondents have failed to understand that no preference was given to the petitioner, as the petitioner was a sole applicant of the aforesaid plot. Further it has been held that as Rule 9A has been declared ultra vires on 27.3.2001, as such, there is no occasion to renew of the application of the petitioner. If the finding to this effect recorded by the respondent No. 2 assumes to be correct that the petitioner was granted mining lease under Rule 9A which was subsequently declared ultra vires, then why the respondents have not cancelled the mining lease of the petitioner and has permitted to continue for its full tenure, which clearly goes to show that the aforesaid mining lease of the petitioner was not granted under Rule 9A of the Rules. In Writ Petition No. 12578 of 2005, Vijay Kumar Nishad v. State of U. P. and others, it has been held that where there is only one application for mining plot, it cannot be said that the mining lease was granted under the preferential right. Aggrieved by the aforesaid order passed by the respondent No. 2 dated 5.12.2005, the petitioner preferred an appeal before the Commissioner, Vindhyachal Division, Mirzapur under Rule 77 of the Rules, 1963. The said appeal was allowed vide its order dated 16.6.2006 and the order dated 5.12.2005 was set aside and the respondent No. 2 was directed to pass appropriate orders on the renewal application of the petitioner. In spite of the aforesaid fact, no action was taken on the application filed for renewal by the petitioner. In the meantime the respondent No. 2 wanted to settle the mining area of the petitioner which has been consolidated alongwith other 12 plots to one of his favourities namely Devi Dayal Gupta S/o Sri Govardhan Das Gupta by ignoring and misinterpretation of Rules, 1963 and recommended to grant entire mining area to the aforesaid person and recommended the same to the State Government for approval of the same. The petitioner submits that if the mining lease is finalized in favour of the person mentioned above, the petitioner will be deprived to get renewed of his mining lease. Further the respondents on 29.11.2005 have issued a notice for 13 mining lots of Arazi No. 1 for inviting application forms from 30.12.2005 and when the respondents found that many applications may be filed and the respondents will not be in a position to grant mining lease to their favourites, notice was cancelled and a further notice dated 24.12.2005 was issued. The notice shows that the respondents just want to give the mining lease to one single person, which is more than 130 acres. The aforesaid action clearly shows the arbitrariness on the part of the respondents.
(3.) THE respondents taking the shelter of amended Rule 10 of Rules, 1963, for consolidating the entire mining lot of the village which consist of 130 acres and want to settle with one single person only and the effect of this will be to curtail the right of poor persons, cannot apply and get the mining lease of the aforesaid consolidated lot as the dead-rent of consolidated lot will be thirteen times high than single lot. THE petitioner's lot No. 5 which was given to the petitioner has also been consolidated in the aforesaid impugned notice, as such, in spite of the order of the Commissioner dated 16.6.2006, the petitioner could not get renewed of his mining lease, if it is settled in favour of the respondent No. 4. It has further been submitted by the petitioner that Rule 10 was amended by way of 26 Amendments dated 22.6.2004 by which previous Rule 10 has been amended and power has been given to District Magistrate to grant mining lease for Moram and Sand for more than thirty acres, although regarding grant of mining lease of boulders and gitti were kept same. A bare perusal of the aforesaid amended Rule 10 clearly goes to show that it is a clear violation of Article 19 (1) (g) of the Constitution of India as due to the aforesaid amended Rule, the District Magistrate can notify the entire mining area of the District after consolidating the same and can grant it to any one single person of his choice and no other poor person who is having an interest to get the mining lease shall be deprived to get the same. It clearly creates monarchy and as such, it is a clear interference and against the well-settled principle of law as the District Magistrate has been authorized by the aforesaid amended Rule to grant mining lease by way of pick and choose policy. Due to the aforesaid amended Rule, a single person can get a mining lease of entire district which is not the ambit and spirit of the Act under which the aforesaid Rule of 1963 is framed shall be frustrated. The rule making power of the State cannot travel beyond the statutory provisions of the Act which has already put restriction by way of mentioning maximum area regarding granting concession to the major minerals under Section 6 of Mines and Minerals (Regulation and Development) Act, 1957 but under amended Rules, the State Government can grant mining lease to any person of his choice irrespective the area, which clearly shows that they have amended aforesaid rule without legislative competency and against the norms of statutory provisions, as such, the aforesaid rule is not sustainable in law. But excessive power has been given by the amended rule to the Sanctioning Authority and there is no limit for area and also there is no limit for having lease by single person, as it relates to sand and morum. For the convenience of this Court, old Rule 10 as well as new Rule 10 and Section 6 of the Mines, Minerals (Regulation and Development) Act, 1957 are being reproduced below : Amended Rule 10 of 1963 Rules : Maximum area for which a mining lease may be granted- No person shall acquire in respect of any minor mineral, one or more mining leases covering a total area of more than thirty acres : Provided that if the State Government is of opinion that in the interests of mineral development it is necessary so to do, it may for reasons to be recorded, permit any person to acquire one or more mining leases covering an area in excess of the aforesaid maximum of thirty acres. Explanation.-For the purpose of these rules, a person acquiring by or in the name of another person a mining lease which is intended for himself shall be deemed to be acquiring it himself." Amended Rule : In the said rules, for Rule 10 set out in Column I below, the rule as set out in Column II below, shall be substituted, namely : Column I Column II Existing rule Rule as hereby substituted 10. Maximum area for which a mining lease may be granted : 10. Maximum area for which a mining lease may be granted : No person shall acquire in respect of any minor mineral one or more mining leases covering a total area of more than thirty acres : No person shall acquire in respect of any minor mineral, except sand or morum or bajri or boulder or any of these in mixed state, one or more mining leases covering a total area of more than thirty acres : "Section 6. Maximum area for which a prospecting licence or mining lease may be granted : (1) No person shall acquire in respect of mineral or prescribed group of associated minerals (in a State) : (a) one or more prospecting licences covering a total area of more than twenty-five square kilometres ; or (aa) one or more reconnaissance permit covering a total area of ten thousand square kilometres ; Provided that the area granted under a single reconnaissance permit shall not exceed five thousand square kilometres, or (b) one or more mining leases covering a total area of more than ten square kilometres : Provided that if the Central Government is of opinion that in the interest of the development of any mineral, it is necessary so to do, it may, for reasons to be recorded by it in writing, permit any person to acquire one or more prospecting licences or mining leases covering an area in excess of the aforesaid total area : (c) any reconnaissance permit, mining lease or prospecting licence in respect of any area which is not compact or contiguous : Provided that if the State Government is of opinion that in the interests of the development of any mineral, it is necessary so to do, it may, for reasons to be recorded in writing, permit any person to acquire a reconnaissance permit, prospecting licence or mining lease in relation to any area which is not compact or contiguous. (2) For the purposes of this section, a person acquiring by, or in the name of, another person a (reconnaissance permit prospecting licence or mining lease) by a person as a member of a co-operative society, company or other corporation, or a Hindu undivided family or a partner of a firm shall be deducted from the area referred to in sub-section (1) so that the sum total of the area held by such person, under a (reconnaissance permit prospecting licence or mining lease) whether as such member or partner, or individually, may not, in any case, exceed the total area specified in sub-section (1)." ;