# Katwaru v. Special Secretary Industrial Development, Lucknow & others

- **Citation:** (2002) 2 ILRA 296
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-01-11
- **Case number:** Civil Misc. Writ Petition No. 44196 of 2001
- **Bench:** G.P. Mathur, U.S. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/katwaru-v-special-secretary-industrial-development-lucknow-others-39820
- **Pages:** 5

## Headnote

Development) Act 1957- read with U.P.
Minor Minerals (Concession) Rules 1963-
rule 9-A- Preferential Rights- grant of
mining lease for sand or morrow or
Bajari or Boulder found in river badprovision for giving preference to certain
case,
mentioned
under
the
section
questioned- full Bench held- Provision of
Section 9A and 53 A are ultra vires-
Hon'ble Supreme Court in S.L.P. directed
to maintain status Quo- Does not mean
to grant renewal for another 3 years
after expiry of the original lease period.

Held- Para 7

The earlier lease which had been granted
in favour of the petitioner on 24.10.1998
expired on 23.10.2001 subsequent to the
order of Hon'ble Supreme Court dated
10.9.2001. In terms of the said order,
the
petitioner
became
entitled
to
excavate the mineral even after the
decision of the Full Bench on 27.3.2001
till the expiry of his lease. However, the
interim order does not mean that he can
get a fresh lease in his favour on
preferential basis for a further period of
3 years.
Case law discussed
w.p. 256 (MB)/97 decided on 27.03.2001(FB)

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2002
296
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2002

BEFORE
THE HON'BLE G.P. MATHUR, J.
THE HON'BLE U.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 44196 of 2001

Katwaru

...Petitioner
Versus
Special
Secretary
Industrial
Development Anubhag 5 U.P. Govt.,
Lucknow and others
 ...Respondents

Counsel for the Petitioner:
Sri S.P. Singh

Counsel for the Respondents:
Sri Ajit Kumar Singh
S.C.

Mines and Minerals (Regulation and
Development) Act 1957- read with U.P.
Minor Minerals (Concession) Rules 1963-
rule 9-A- Preferential Rights- grant of
mining lease for sand or morrow or
Bajari or Boulder found in river badprovision for giving preference to certain
case,
mentioned
under
the
section
questioned- full Bench held- Provision of
Section 9A and 53 A are ultra vires-
Hon'ble Supreme Court in S.L.P. directed
to maintain status Quo- Does not mean
to grant renewal for another 3 years
after expiry of the original lease period.

Held- Para 7

The earlier lease which had been granted
in favour of the petitioner on 24.10.1998
expired on 23.10.2001 subsequent to the
order of Hon'ble Supreme Court dated
10.9.2001. In terms of the said order,
the
petitioner
became
entitled
to
excavate the mineral even after the
decision of the Full Bench on 27.3.2001
till the expiry of his lease. However, the
interim order does not mean that he can
get a fresh lease in his favour on
preferential basis for a further period of
3 years.
Case law discussed
w.p. 256 (MB)/97 decided on 27.03.2001(FB)

(Delivered by Hon'ble G.P. Mathur, J.)

1. The petitioner was granted a
mining lease to excavate sand for a period
of 3 years from 28.10.1998 to 29.10.2001.
Before the expiry of his lease he made an
application on 19.3.2001 for renewal of
the lease for a further period of 3 years.
The District Officer, Gorakhpur, by his
order dated 1.10.2001 sanctioned renewal
of lease for a further period of 3 years,
which was to expire on 26.10.2004.
Virendra Singh, respondent no. 6 moved
an
application
before
the
State
Government that in view of subsequent
Government Order dated 22.9.2001, the
lease granted in favour of the petitioner
on 24.10.1998 could not be renewed for a
further period of 3 years. The State
Government, thereafter, passed an order
on 7.12.2001 by which the operation of
the order dated 1.10.2001 passed by
District
Officer,
Gorakhpur
was
suspended. By the same order, the District
Officer was directed to submit his
comments on the application moved by
Virendra Singh so that further action in
the matter may be taken. Thereafter, the
District Officer, Gorakhpur, passed an
order on 14.12.2001 directing that the
petitioner shall not be permitted to
excavate sand until further orders as the
renewal of lease granted in his favour on
1.10.2001 had been suspended by the
State Government. The present writ
petition
under
Article
226
of
the
Constitution has been filed for quashing
the order dated 7.12.2001 of the State
Government
and
the
order
dated
14.12.2001
of
the
District
Officer,
Gorakhpur.
2 All] Katwaru Vs. Special Secretary Industrial Development, Lucknow & others
297

2. In exercise of power conferred by
section 15 of the Mines and Minerals
(Regulation and Development) Act, 1957,
the State Government made the U.P.
Minor Minerals (Concession) Rules, 1963
(hereinafter referred to as the Rules).
Sand is a minor mineral within the
meaning of Rule 2 (7) of the Rules. Rule
3 provides that no person shall undertake
any mining operations in any area within
the State of any minor mineral to which
the Rules are applicable except under and
in accordance with the terms and
conditions of a mining lease or a mining
permit granted under these Rules. Chapter
II lays down the procedure for grant of
mining lease and Chapter VI lays down
the procedure for grant of mining permit.
Rule 6 provides for moving an application
for grant of a mining lease and Rule 6-A
provides that an application for grant of a
mining lease and Rule 6-A provides that
an application for renewal of mining lease
may be made at least six months before
the date of expiry of the mining lease.
Rule 8 lays down the manner of disposal
of an application moved under Rule 6 for
grant of a mining lease and under Rule 6A for renewal of a mining lease. Sub-rule
(1) of Rule 9-A, which has a bearing on
the controversy in hand, reads as follows:

"9-A. Preferential right of certain
persons in respect of sand etc.:- (1)
Notwithstanding anything contained in
Rule 9, in respect of mining lease for sand
or morrum or bajari boulder or any of
these in mixed state exclusively found in
the river bad, preference shall be given in
the following order to a person or group
of persons, whether or not incorporated
who;

(a) belong to socially and educationally
backward classes of citizens, engaged in
carrying on the occupation of excavation
of sand or morrum as a profession and are
resident of the same district in which the
lease is applied for; is situate;

(b) have
established
or
intend
to
establish the aforesaid minor mineral
based industry in the State.

Explanation:- For the purpose of clause
(a) the persons belonging to socially and
educationally
backward
classes
of
citizens, engaged in carrying on the
excavation of sand or morrum as
profession means Mallah, Kewat, Bind,
Nishad,
Manjhi,
Batham,
Dhiwar,
Themar, Chai, Sorahia, Turha, Raikwar,
Kaiwrat, Khulwat, Tiyar, Gaudia, Godia
and Kashyap and includes such other
persons as are specified as such by the
State Government by notification in the
Official Gazette."

3. The petitioner, Katwaru, belongs
to one of the castes mentioned in the
explanation and, therefore, he is entitled
to the benefit of Rule 9-A of the Rules. It
is not in dispute that the original lease
granted in his favour on 24.10.1998 and
which expired on 23.10.2001 had been
granted in view of his preferential right
under Rule-9-A of the Rules. The
constitutional vires of Rule 9-A and Rule
53-A of the Rules was challenged in Writ
Petition No. 256 (M/B) of 1997 (Ram
Chand Versus State of U.P. and another)
and the matter was referred to a Full
Bench. The Full Bench by the judgment
and order dated 27.3.2001 held that Rules
9-A and 53-A are ultra vires to the
Constitution of India and the provisions of
Mines and Minerals (Regulation and
Development) Act, 1957. Thereafter, the
State Government issued a Government
Order on 13.6.2001, copy of which has
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
298
been filed as Annexure-6 to the writ
petition Para 3 of this Government Order
lays down that there would be no restrain
or embargo on the mining leases which
had been sanctioned executed before
27.3.2001. It further provided that there is
no prohibition in entertaining applications
for renewal of mining leases where the
question of grant of preference does not
arise. The State Government also filed
Special
Leave
Petition
in
Hon'ble
Supreme Court challenging the decision
of the Full Bench in Writ Petition No.
256(M/B) of 1997. It is stated in para 14
of the writ petition that on 10.9.2001, the
following order was passed:

"Permission to file S.L.P. allowed.

Since the validity of rule 9-A and 53A is subject matter of consideration in this
bunch of cases. Leave granted.

Status
quo
as
on
today
be
maintained.

Intervention
applications
are
allowed."

4. Thereafter, the State Government
issued another Government Order on
22.9.2001 to the effect that in view of the
order passed by the Hon'ble Supreme
Court, status quo be maintained.

5. Sri S.P. Singh, learned counsel for
the petitioner has assailed the impugned
orders on the ground that in view of the
order passed by Hon'ble Supreme Court
for maintaining status quo the right of the
petitioner to have his mining lease
renewed cannot be taken away and,
therefore, the impugned order of the State
Government and also of the District
Officer, Gorakhpur, is illegal.

6.

The
petitioner
claimed
preferential right for grant of a mining
lease under Rule 9-A of the Rules as he
belongs to a caste which is enumerated in
explanation appended to sub-rule 1
thereof. He was granted a mining lease on
a preferential basis on 24.10.1998 for a
period of 3 years. The period of his lease
expired on 23.10.2001. Prior to the expiry
of the lease, the Full Bench of this Court
by
the
judgment
and
order
dated
27.3.2001 struck down Rule 9-A of the
Rules
as
being
violative
of
the
Constitution of India and the provisions of
Mines and Mineral (Regulation and
Development) Act, 1957. In view of the
this decision, the petitioner cannot claim
any preferential right to get a mining
lease. Rule 6-A of the Rules no doubt
provides for renewal of a mining lease but
the effect of renewal of a mining lease
which had been granted on preferential
basis would be that a right acquired under
Rule 9-A on preferential basis would be
perpetuated or get a fresh lease of life for
a further period of 3 years. The copy of
the order passed by the District Officer on
1.10.2001 shows that the renewal had
been granted on the same terms and
conditions on which the original lease had
been granted and in addition some other
conditions of miner nature has also been
imposed. The effect of the renewal would
be that the mining area would continue to
be operated by a person on the basis of a
preferential
right
with
effect
from
24.10.2001, though the very foundation of
a preferential right as provided under Rule
9-A of the Rules has disappeared after the
decision of the Full Bench on 27.3.2001
when the said provision was declined to
be ultra vires. Therefore, any one who had
got a mining lease on preferential basis
under Rule 9-A of the Rules cannot claim
2 All] Katwaru Vs. Special Secretary Industrial Development, Lucknow & others
299
renewal of his lease under Rule 6-A after
the decision of the Full Bench.

7. Sri Singh has submitted that
Hon'ble Supreme Court has granted
special leave against the decision of the
Full Bench on 10.9.2001 and has also
passed an order of maintaining status quo
and, consequently, the right of the
petitioner to get his mining lease renewal
under Rule 6-A continued to exist. We are
unable to accept the contention raised. It
is noteworthy that the Hon'ble Supreme
Court has not stayed the operation of the
judgment and order dated 27.3.2001
passed by the Full Bench. Had the
operation of the judgment and order been
stayed, the provisions of Rule 9-A of the
Rules which provide for grant of a
preferential right would have remained in
existence on the statute book. The interim
order only directs that "status quo as on
today be maintained." In our opinion, the
effect of this order is that the leases
already granted under Rule 9-A of the
Rules would not be effected and the
lessees would continue the right to
excavate the mineral till the expiry of the
lease. The interim order would only
protect the existing leaseholders. After the
order of renewal of lease is passed, a fresh
lease has to be executed again and fresh
rights are created in favour of the lessees.
The order of maintaining status quo
cannot mean that such lessees who had
got the right on preferential basis under
Rule 9-A would also get a right to have a
fresh lease executed in their favour which
would confer them right to excavate the
mineral for a further period of 3 years
with effect from a date subsequent to the
date on which the order of maintaining
status quo was passed namely, 10.9.2001.
The earlier lease which had been granted
in favour of the petitioner on 24.10.1998
expired on 23.10.2001 subsequent to the
order of Hon'ble Supreme Court dated
10.9.2001. In terms of the said order, the
petitioner became entitled to excavate the
mineral even after the decision of the Full
Bench on 27.3.2001 till the expiry of his
lease. However, the interim order does not
mean that he can get a fresh lease in his
favour on preferential basis for a further
period of 3 years.

8. Sri S.P. Singh has next submitted
that the District Officer having passed an
order on 1.10.2001 for renewal of lease in
his favour, the said order could not be
suspended
without
giving
him
an
opportunity of hearing. In our opinion, the
contention raised is wholly misconceived.
The impugned order has been passed in
view of the decision of the Full Bench.
The result thereof is that Rule 9-A no
longer remains on the statute book and,
consequently, the petitioner who had got
the mining lease on the basis of the said
provision, cannot claim to have his lease
renewed for a further period of 3 years. In
these circumstances, there was hardly any
occasion to give an opportunity of hearing
to the petitioner. It is noteworthy that after
the order dated 1.10.2001 had been passed
by the District Officer, the petitioner had
moved an application praying that the
requisite agreement be executed in his
favour (Annexure-11 to the writ petition).
But no agreement had in fact been
executed and, thus, no rights had accrued
to him.

9. Sri Singh has lastly urged that the
Government Order dated 22.9.2001 is
discriminatory inasmuch as it only
prohibits renewal of such leases of such
persons who had been initially granted
leases on preferential basis under Rule 9A but it does not prohibit renewal of other
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
300
leases. The contention has hardly any
merit. The Full Bench has merely struck
down Rule 9-A of the Rules which
provide for grant of a mining lease on
preferential basis and naturally this
decision can only effect the right of
renewal of only those persons who owe
their existence to a preferential right
under Rule 9-A of the Rules. The decision
cannot effect those who had got mining
leases without claiming any preferential
right and naturally the benefit of Rule 6-A
which provides for renewal of a mining
lease would still be available to such
category of persons. The question of
discrimination, therefore, does not arise.

10. It may also be mentioned here
that the impugned order passed by the
State Government on 7.12.2001 and the
order dated 14.12.2001 passed by the
District Officer have merely suspended
the operation of the order by which the
prayer of the petitioner for renewal of
lease had been granted. The last part of
the order passed by the State Government
shows that comments have been called far
from the District Officer to enable it to
take further decision in the matter. Being
merely an order of suspension, it is not at
all a fit case where this Court should
exercise discretion under Article 226 of
the Constitution at this stage.

11. For the reasons mentioned
above, we do not find any merit in the
writ petition, which is hereby dismissed
summarily at the admission stage.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18 JANUARY, 2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 44340 of 2000

Shahjahan Khan

...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri Rakesh Bahadur
Sri R.C. Deepak

Counsel for the Respondents:
S.C.

Government Conduct Rules 1956 Rule
29-(i)
Dismissal
order-
a
Police
Constable- despite of having living wife
started leaving with another woman for
the last 7 months-Tribunal found second
marriage not proved-held- not amount to
misconduct
of
bigamy-
considering
modern time- change of value- old can
not import old ideas into modern time-
dismissal order quashed.

Held - Para 5,6 and 12

In our opinion merely because a man
lived with a woman it does not mean
that he is married to her. Unless the
evidence proves the second marriage it
cannot be inferred that merely because
the petitioner lived with Champa Devi for
seven months he was married to her. In
paragraph
13
of
its
judgment
the
'Tribunal has stated that though the
second marriage is not strictly proved by
the evidence yet it is an act unbecoming
of a Government servant. In our opinion
Rule 29 of the Government Conduct
Rules will only apply if there was a
second marriage i.e. bigamy. Since the
Tribunal itself has held that the second
marriage was not proved we fail to