# Rajani Pandey v. The Chief of Army Staff, New Delhi and others

- **Citation:** (2005) 2 ILRA 797
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-06
- **Case number:** Civil Misc. Writ Petition No.49394 of 2004
- **Bench:** Dr. B.S. Chauhan, Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajani-pandey-v-the-chief-of-army-staff-new-delhi-and-others-40538
- **Pages:** 5

## Headnote

Constitution of India, Art. 226-Grant of
mining lease-Petitioner discovered new
area of mining applied for grant of leaseApplication remained pending for 8 yrs.-
decided only after the interference of
High Court-the G.O. 25.05.1995 relied by
petitioner-modified by subsequent G.O.
dated 16.10.04-No such provision to
grant lease to those who discovered new
mines-during this period the person to
whom lease granted-not impleaded-No
malafide
allegation
against
the
authority-Court declined to interfere.

Held: Para 12

Thus, the District Magistrate, Deoria was
required to consider the provisions of
Government Order applicable on the date
the decision was to be taken. From the
records, we find that by Government
Order dated 27th August, 2002, the
Government had taken a decision not to
grant mining lease in future on the basis
of the earlier Government Order dated
25th
May,
1995
and
even
in
the
subsequent Government Order dated
16th October, 2004, there is no provision
for grant of mining lease in favour of a
person who has discovered the mining
lease. The District Magistrate, Deoria has
passed a detailed order rejecting the
representation of the petitioner on this
ground. We see no infirmity in the said
order.
Case law discussed:
1997 (7) SCC-314
AIR 1981 SC-711
1999 (1) SCC-475
2004 (1) SCC-663
1992 (3) SCC-455
1995 (5) SCC-125
1998 ACJ 590

## Text

2 All] Rajani Pandey V. The Chief of Army Staff, New Delhi and others 797
refusing her request to produce the
certificate, the result of which was
available on the Internet. Even otherwise
this certificate of the course pursued by
her as additional qualification was not
essential for appointment. She had passed
the test and was declared selected. She,
therefore,
could
not
be
refused
appointment.

9. The writ petition is allowed. The
order of appointment of Sri Jitendra
Kumar, respondent no. 4 placed at third in
the merit list is set aside. The petitioner
shall be given appointment without any
delay with seniority with effect from the
date she was entitled to be appointed if
her candidature was not struck out.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No.49394 of 2004

Smt. Srikanti Nishad

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri A.K. Singh
Counsel for the Respondents:
Sri S.N. Singh
Sri Vishnu Pratap
S.C.

Constitution of India, Art. 226-Grant of
mining lease-Petitioner discovered new
area of mining applied for grant of leaseApplication remained pending for 8 yrs.-
decided only after the interference of
High Court-the G.O. 25.05.1995 relied by
petitioner-modified by subsequent G.O.
dated 16.10.04-No such provision to
grant lease to those who discovered new
mines-during this period the person to
whom lease granted-not impleaded-No
malafide
allegation
against
the
authority-Court declined to interfere.

Held: Para 12

Thus, the District Magistrate, Deoria was
required to consider the provisions of
Government Order applicable on the date
the decision was to be taken. From the
records, we find that by Government
Order dated 27th August, 2002, the
Government had taken a decision not to
grant mining lease in future on the basis
of the earlier Government Order dated
25th
May,
1995
and
even
in
the
subsequent Government Order dated
16th October, 2004, there is no provision
for grant of mining lease in favour of a
person who has discovered the mining
lease. The District Magistrate, Deoria has
passed a detailed order rejecting the
representation of the petitioner on this
ground. We see no infirmity in the said
order.
Case law discussed:
1997 (7) SCC-314
AIR 1981 SC-711
1999 (1) SCC-475
2004 (1) SCC-663
1992 (3) SCC-455
1995 (5) SCC-125
1998 ACJ 590

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition has been filed
for
quashing
the
order
dated
8th
November, 2004 passed by the District
Magistrate,
Deoria
rejecting
the
representation filed by the petitioner for
grant of mining lease and for a direction
upon the respondents to grant the mining
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
798
lease to the petitioner on the basis of the
Government Order dated 25th May, 1995.

2. The facts and circumstances
giving rise to this case are that the
petitioner discovered a mining area
measuring 7.50 acres in Mahal Nadi of
Chhoti Gandak situate in Majhauliraj,
Tahsil Salempur, District Deoria and on
the basis of the Government Order dated
25th May, 1995, submitted an application
on 4th June, 1996 for grant of mining
lease in her favour. However, instead of
granting mining lease to the petitioner, the
District Magistrate, Deoria passed an
order granting the mining lease in favour
of one Shri Mundrika Prasad Nishad for a
period of three years. This order was
challenged by the petitioner in Writ
Petition No. 3566 of 1989, which was
dismissed as infructuous vide judgment
and order dated 01.04.2004 but liberty
was given to the petitioner to make a
representation as permissible under law
for grant of mining rights. The petitioner
then submitted an application dated 15th
May, 2004 before the District Magistrate,
Deoria for grant of mining lease on the
basis of Government Order dated 25th
May, 1995. This application was rejected
by the District Magistrate vide order dated
19th August, 2004. The petitioner then
filed Writ Petition No.40990 of 2004 for
quashing the order dated 9th August,
2004. The petition was dismissed by this
Court vide order dated 6th October, 2004
since the petitioner did not press the
petition as he had already approached the
concerned authority. The Court, however,
observed that the representation filed by
the petitioner would be decided within
three weeks from the date of receipt of the
order. The representation filed by the
petitioner was rejected by the District
Magistrate, Deoria vide order dated 8th
November, 2004. Hence the present
petition.

3. Mr. A.K. Singh, learned counsel
for the petitioner submitted that the
petitioner is entitled to grant of mining
lease in her favour on the basis of the
Government Order dated 25th May, 1995
as she had discovered the mining area in
question and, therefore, the District
Magistrate was not justified in rejecting
her representation. He further submitted
that the application for grant of mining
lease had been filed on 4.6.1996, though it
had been considered and rejected on 1st
April,
2004
after
expiry
of
an
unreasonable power of 8 years. The
petitioner is entitled to get her application
disposed of as per the law existing on the
submission of her application.

4. Learned Standing Counsel, on the
other hand, submitted that in view of the
subsequent Government Order dated 27th
August, 2002, the mining lease could not
have been granted in favour of the
petitioner merely on account of the fact
that she had discovered the mining area
and even the subsequent Government
Order dated 16th October, 2004 does not
provide for grant of any such mining
lease. He further submitted that there was
no error in the order dated 8th November,
2004 passed by the District Magistrate,
Deoria rejecting the representation of the
petitioner on the ground that the earlier
Government Order dated 25th May, 1995
did not survive after the issuance of
Government Orders dated 27th August,
2002 and 16th October, 2004.

We have carefully considered the
rival submissions advanced on behalf of
the learned counsel for the parties and
have perused the record.
2 All] Smt. Srikanti Nishad V. State of U.P. and others 799

5. The sole contention raised by the
learned counsel for the petitioner is that
she is entitled to grant of mining lease on
the basis of the Government Order dated
25th May, 1995 as she has discovered the
mining area. The application for grant of
such mining lease was considered by the
District
Magistrate,
Deoria
on
8th
November, 2004. The Hon'ble Supreme
Court in Union of India & Ors. Vs. Indian
Charge Chrome & Anr., (1997) 7 SCC
314 has clearly held that the law which is
to be applied in a case is the law
prevailing on the date of decision making.

6. In State of Tamil Nadu Vs. M/s.
Hind Stone & Ors., AIR 1981 SC 711,
while dealing with a similar issue the
Hon'ble Supreme Court held that mere
pendency of an application does not
create any legal right in favour of the
applicant and the application is to be
decided as per the law applicable on the
date of decision. The Court held as
under:-

"While it is true that such application
should be dealt with within a reasonable
time, it cannot on that account be said that
right to have an application disposed of in
a reasonable time, clothes an applicant for
a lease with a right to have the application
disposed of on the basis of rules in force
at the time of making of the application.
No one has a vested right to the grant or
renewal of a lease and none can claim a
vested right to have an application for the
grant or renewal of a lease dealt with in a
particular way, by applying particular
provisions. In the absence of any vested
rights in any one, an application for a
lease has necessarily to be dealt with
according to rules in force on the date of
the disposal of the application despite the
fact that there is a long delay since the
making of application."

7. The said judgment has been
approved and a similar view has been
reiterated by the Hon'ble Supreme Court
in V. Karnal Durai Vs. District Collector,
Tuticorin & Anr., (1999) 1 SCC 475,
wherein it has been held that if during the
pendency of an application for grant of a
mining lease the rules are amended, the
application is to be decided as per the
amended rules.

8. Similar view has been reiterated
in Howrah Municipal Corporation & Ors.
Vs. Ganges Rope Company Ltd. & Ors.,
(2004) 1 SCC 663, wherein reliance had
been placed on the judgment of its earlier
judgment in Usman Ganij. Khatri of
Bombay Vs. Cantonment Board & Ors.,
(1992) 3 SCC 455 and State of West
Bengal Vs. Terra Firma Investment &
Trading Pvt. Ltd, (1995) 1 SCC 125,
wherein the Apex Court had held that
application is to be decided on the basis of
the law existing on the date of decision
and not on the basis of the law prevailing
on the date of submission of the
application.

9. In view of the above, we are of
the considered opinion that even if the
application of the petitioner has been filed
on 4.6.1996 and was disposed of after a
lapse of 8 years, and that is too by the
direction of this Court, mere pendency of
her application for 8 years could not
create any vested right in her favour to get
the application decided as per the law
existing on the date of submission of her
application.

10. Learned counsel for the
petitioner has placed a very heavy
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
800
reliance
upon
the
Division
Bench
judgment of this case in Jagmohan Dutt
Sharma & Ors. Vs. State of U.P. & Ors.,
1998 All. C.J. 590, wherein this Court has
taken a view that a person if discovers a
new area, he shall be entitled for grant of
mining lease in his favour by virtue of the
provisions of Government Order dated
25.5.1995.

11. In view of the fact that the said
Government Order was not in existence
on the date of consideration of her
application, petitioner cannot derive any
benefit of the said judgment. The law laid
down by the said judgment that is
Jagmohan Dutt Sharma (Supra) has lost
its rigor on 27th August, 2002, the date on
which the State Government issued
another order not issuing a direction not
to grant any lease in pursuance of the
Government Order dated 25th May, 1995.

12. Thus, the District Magistrate,
Deoria was required to consider the
provisions
of
Government
Order
applicable on the date the decision was to
be taken. From the records, we find that
by Government Order dated 27th August,
2002, the Government had taken a
decision not to grant mining lease in
future on the basis of the earlier
Government Order dated 25th May, 1995
and even in the subsequent Government
Order dated 16th October, 2004, there is
no provision for grant of mining lease in
favour of a person who has discovered the
mining lease. The District Magistrate,
Deoria has passed a detailed order
rejecting
the
representation
of
the
petitioner on this ground. We see no
infirmity in the said order.

13. Petitioner herself has mentioned
in paragraph 14 of her petition that
instead of granting the lease in the said
area, the mining lease of the same land
had been granted in favour of Shri
Mundrika Prasad Nishad vide order dated
18.9.1996. We fail to understand under
what circumstances petitioner could claim
any relief if in respect of the same land
mining lease had been granted in favour
of the said person, that is too without
impleading him as a respondent. The
respondent no. 4 Mining Officer has been
impleaded by him, but no allegations of
mala fides have been alleged against him.
We could not understand the purpose of
impleading the respondent no. 4 by him as
a party is required to be impleaded by
name also in case there are allegations of
mala fide against him.

In view of the above, we do not find
any ground to interfere with. Petition
lacks merit and is accordingly dismissed.
There shall be no order as to costs.
Petition Dismissed.
---------
2 All] Smt. Srikanti Nishad V. State of U.P. and others 801
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 48778 of 2005

Smt. Sukhraji Devi

...Petitioner
Versus
Babu Ram Kanaujia and others

 Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Singh

Counsel for the Respondents:
S.C.

Constitution of India, Art. 226-Practice
of Procedure-order of status Quo-passed
by
S.D.M.
to
maintain
the
peace
aggrieved party can file separate suit or
to take the recourse of filing application
under Order 39 rule I C.P.C.-but can not
be interfered under writ jurisdictionvarious reasons disclosed.

Held: Para 14

In
view
of
the
above,
we
reach
inescapable conclusion that in a matter
where the issue of title is involved, the
party has to get the grievance redressed
through the Civil Court. Petitioner ought
to have resorted to the same, and it is
still open to him, even today, to do so.
Case law discussed:
AIR 1962 SC 527
1972 ALJ 379
AIR 1989 Ker. 81
AIR 1995 Ker. 74
AIR 1989 Ker. 164
AIR 1975 Ker. 137
AIR 1955 SC-566
AIR 1971 SC-1244
AIR 1996 SC-339
2002 (8) SCC-87
AIR 1982 SC-1081
1995 Suppli. (2) SCC-290
AIR 1968 SC-1165

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition has been filed
for quashing the order dated 05.06.2005
(Annex.18) passed by the Sub Divisional
Magistrate, Gyanpur, Sant Ravidas Nagar;
holding an enquiry and till then to
maintain status quo regarding possession,
over the property in dispute.

2. The facts and circumstances
giving rise to this case are that the
petitioner on the one hand and the
respondents no. 4 and 5 on the other, have
a dispute in respect of a particular piece of
land. The petitioner claims that she had
been granted a Patta in respect of the said
land under the scheme of Family Planning
and
she
is
in
possession
thereof.
Respondents no. 4 and 5 claim ownership
over the said land and filed a Civil Suit
No. 525 of 2004 for permanent injunction
against the present petitioner. However,
their application for interim relief under
Order XXXIX Rule 1 of the Code of Civil
Procedure (hereinafter called the ''C.P.C.')
is still pending and no order has yet been
passed. The respondents no. 4 and 5
approached
the
Sub
Divisional
Magistrate,
Gyanpur
and
the
Sub
Divisional Magistrate has passed the
order dated 05.06.2005 that the parties
shall maintain status quo. Hence, the
present petition.

3. Learned counsel for the petitioner
has submitted that the order passed by the
Sub Divisional Magistrate is without
jurisdiction and nullity. No order could be
passed by him as no interim order has yet
been passed in favour of the said plaintiff-