# Vijay Kumar Dwivedi v. State Of U.P. & Ors - **Citation:** (2016) 6 ILRA 362 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-06-20 - **Bench:** Arun Tandon, Mrs. Sunita Agarwal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-kumar-dwivedi-v-state-of-u-p-ors-43967 - **Pages:** 6 ## Headnote MINOR MINERALS - Grant of mining leases - Government Order dated 31.5.2012 - Mandatory etendering under Rule 23, U.P. Minor Minerals (Concession) Rules, 1963 - No fresh lease, renewal, extension or permission for obstructed period permissible thereafter (Paras 4-6, 14) MINING LEASES - Applications pending prior to 31.5.2012 - No vested right to renewal or grant - Applications to be governed by rules in force on date of consideration (Paras 5, 6) ILLEGAL MINING - Excavation without subsisting lease - Issuance of Form MM-11 without authority - Collusion of district authorities alleged - Court directions for strict enforcement and accountability (Paras 3, 14-15) EXTENSION FOR OBSTRUCTED PERIOD - Lease expired - No right to continue excavation on plea of earlier restraint by Court or authorities - Only compensation in money permissible, not extension of term (Paras 13-14) JUDICIAL PRECEDENTS - Binding nature of earlier Division Bench judgments and Supreme Court decisions - State cannot overreach judicial pronouncements by executive amendments (Paras 5-9) ADMINISTRATIVE ACCOUNTABILITY - Collector, SSP and District Mining Officer made personally responsible to prevent illegal mining - Affidavits directed to be filed (Paras 14-15) PUBLIC INTEREST LITIGATION - Protection of natural resources - Directions issued to ensure compliance of statutory scheme - Clarification that valid leases prior to 31.5.2012 unaffected (Paras 14, 16) List of Cases cited: Nar Narain Mishra vs. State of U.P. and others, 2013 (2) ADJ 166 (DB) Sukhan Singh versus State of U.P., 2014 (11) ADJ 89 Deepak Kumar v. State of Haryana, 2012 (4) SCC 629 Ramakant Dwivedi vs. Rafiq Ahmad and others, 2016 (3) SCC 352 6 All. Vijay Kumar Dwivedi Vs State Of U.P. & Ors. 363 Sulekhan Singh and Co. and others vs. State of U.P., 2016 (2) AWC 1102 (SC) Beg Raj Singh Vs. State of U.P. and others, AIR 2003 SC 833 J.P. Yadav Vs. Kanhaiya Singh and others, Civil Appeal No. 8621 of 2013 (arising out of S.L.P. (C) No. 16316 of 2006) Provash Chandra Dalui and another Vs. Biswanath Banerjee and another, AIR 1989 SC 1834 Gopal Swarup Chaturvedi Vs. State of U.P. and others, 2007 (102) RD 574 State of U.P. and others Vs. Lalji Tandon (Dead) through L.R.S., 2004 1 SCC 1 ## Text 362 INDIAN LAW REPORTS ALLAHABAD SERIES ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 20.06.2016 BEFORE THE HON'BLE ARUN TANDON, J. THE HON'BLE MRS. SUNITA AGARWAL, J. Public Interest Litigation (PIL) No.- 28916 Of 2016 Vijay Kumar Dwivedi ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioner: Devbrat Mukherjee, Syed Rafat Ali Counsel for the Respondents: C.S.C. MINOR MINERALS - Grant of mining leases - Government Order dated 31.5.2012 - Mandatory etendering under Rule 23, U.P. Minor Minerals (Concession) Rules, 1963 - No fresh lease, renewal, extension or permission for obstructed period permissible thereafter (Paras 4-6, 14) MINING LEASES - Applications pending prior to 31.5.2012 - No vested right to renewal or grant - Applications to be governed by rules in force on date of consideration (Paras 5, 6) ILLEGAL MINING - Excavation without subsisting lease - Issuance of Form MM-11 without authority - Collusion of district authorities alleged - Court directions for strict enforcement and accountability (Paras 3, 14-15) EXTENSION FOR OBSTRUCTED PERIOD - Lease expired - No right to continue excavation on plea of earlier restraint by Court or authorities - Only compensation in money permissible, not extension of term (Paras 13-14) JUDICIAL PRECEDENTS - Binding nature of earlier Division Bench judgments and Supreme Court decisions - State cannot overreach judicial pronouncements by executive amendments (Paras 5-9) ADMINISTRATIVE ACCOUNTABILITY - Collector, SSP and District Mining Officer made personally responsible to prevent illegal mining - Affidavits directed to be filed (Paras 14-15) PUBLIC INTEREST LITIGATION - Protection of natural resources - Directions issued to ensure compliance of statutory scheme - Clarification that valid leases prior to 31.5.2012 unaffected (Paras 14, 16) List of Cases cited: Nar Narain Mishra vs. State of U.P. and others, 2013 (2) ADJ 166 (DB) Sukhan Singh versus State of U.P., 2014 (11) ADJ 89 Deepak Kumar v. State of Haryana, 2012 (4) SCC 629 Ramakant Dwivedi vs. Rafiq Ahmad and others, 2016 (3) SCC 352 6 All. Vijay Kumar Dwivedi Vs State Of U.P. & Ors. 363 Sulekhan Singh and Co. and others vs. State of U.P., 2016 (2) AWC 1102 (SC) Beg Raj Singh Vs. State of U.P. and others, AIR 2003 SC 833 J.P. Yadav Vs. Kanhaiya Singh and others, Civil Appeal No. 8621 of 2013 (arising out of S.L.P. (C) No. 16316 of 2006) Provash Chandra Dalui and another Vs. Biswanath Banerjee and another, AIR 1989 SC 1834 Gopal Swarup Chaturvedi Vs. State of U.P. and others, 2007 (102) RD 574 State of U.P. and others Vs. Lalji Tandon (Dead) through L.R.S., 2004 1 SCC 1 (Delivered by Hon'ble Arun Tandon, J. & Hon'ble Mrs. Sunita Agarwal, J.) 1. Connect with the PIL Nos. 28914 of 2016, 28905 of 2016, 28912 of 2016, 28906 of 2016, 28915 of 2016 and 28904 of 2016. 2. These seven writ petitions have been filed challenging the grant of leases for excavation of minor minerals subsequent to 31st May, 2012 either in the shape of extension of the term of the expired lease, its renewal or by grant of permission to continue with the mining for the obstructed period i.e. the period during which lease rights could not be examined on account of the interim orders passed by the High Court or the order of the Competent Authorities. 3. Other grievance raised by means of these writ petitions is in respect of illegal mining being carried out in the Districts namely Hamirpur, Deoria, Shamli, Fatehpur and Siddhartha Nagar. It is the case of the petitioner that despite there being no subsisting lease in favour of any person for excavation of minor minerals specifically sand, excavation of minor mineral is being carried out by Sand Mafias in collusion with the District Authorities. Form MM-11 are being issued by the District Authorities without there being any subsisting lease in favour of any persons only for circumventing the orders/direction issued by the Hon'ble High Court in various Public Interest Litigation/Writ Petitions. 4. The admitted facts of the matter are that the State Government had issued a Government Order dated 31st May, 2012 declaring that the entire vacant areas would be made available for grant of lease for excavation of minor minerals only by adopting the procedure of e-tendering in terms of the Rule 23 of the Uttar Pradesh Minor minerals (Concession) Rules, 1963 (hereinafter referred to as Rules 1963). 5. This Government Order came up for consideration in the case of Nar Narain Mishra vs. State of U.P. and others1. A Division Bench of this Court held that subsequent to 31st May, 2012 i.e. after the declaration has been issued under Rule 23 of the Rules, no application for grant of fresh leases including the pending applications on the said date of notification could be considered for the purpose of grant of lease under Chapter II of the Rules. 6. The applications qua which sanctions had been granted by the State Government prior to 31.5.2012 but actual leases/lease deeds had not been executed till issuance of the Government order 364 INDIAN LAW REPORTS ALLAHABAD SERIES dated 31st May, 2012, came up for consideration before a Division Bench of this Court in the case of Sukhan Singh versus State of U.P.2 wherein it was held as under:- "Consequently, the view of the Division Bench was that no mandamus could be granted, directing the consideration of those applications for renewal of leases which were pending on 31 May 2012 under Chapter II of the Rules, once a declaration has been issued under Rule 23 of the Rules, making the provisions of Chapter IV of the Rules applicable. Similarly, on and after 31 May 2012, it was held, applications for the grant of fresh leases, even though they were pending, would not be governed by Chapter-II of the Rules as claimed by the petitioner. The view which has been taken by the Division Bench in Nar Narain Mishra (supra) is plainly in accord with both the Act and the Rules. Under Section 4(1) of the Act, there is a prohibition on any person undertaking mining operations in any area, except under and in accordance with the mining lease. Under Rule 3(1) of the Rules, there is a similar prohibition on undertaking any mining operations in any area within the State, of a minor mineral "except under and in accordance with the terms and conditions of a mining lease". In the decision of the Supreme Court in the State of Tamil Nadu (supra), the position in law was set out in the following observations:- "While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the 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 the rules in force at the time of the 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 anyone, an application for a lease has necessarily to be dealt with according to the 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 the application." 7. We may record that the Special Leave Petition (Civil) No. 35075 of 2014 filed by the State against the judgment of this Court in the case of Sukhan Singh (supra) was dismissed on 5th January, 2015. Similarly the Special Leave to Appeal filed against the judgment in the case of Nar Narain Mishra (supra) filed by the State was also dismissed by the Apex Court. 8. The State Government in order to overreach the above pronouncements made amendments in the Minor Minerals (Concession) Rules 1963 on 22.10.2014 thereby introduced Rule 9A in the Rules 1963. The validity of the same came up for consideration in the case Gulab Chandra Mishra vs. State of U.P. and others (Civil Misc. Writ Petition No. 1498 of 2015) and other connected matters before a Division Bench of this Court. The Division Bench vide its judgment and order dated 3rd April, 2015 held that Rule 9A introduced by means of the 37th amendment to the Concession Rules, 1963 was bad being in conflict with Rule 23 (3) of the Minor Minerals (Concession) Rules 1963, the District Magistrates were restrained from granting any 6 All. Vijay Kumar Dwivedi Vs State Of U.P. & Ors. 365 leases in terms thereof. Certain other directions were also issued by the Division Bench. Against this pronouncement, Special Leave to Appeal filed by the State is pending but no interim order has been granted by the Apex Court, till date. 9. We have been informed that various issues with regard to grant of leases subsequent to 31.5.2012 came up for consideration before another Division Bench of this Court in the case of Om Prakash vs. State of U.P. and others namely Writ Petition No. 35257 of 2015 connected with Public Interest Litigation (PIL) No. 35233 of 2015 (Rafiq Ahmad vs. State of U.P. and others), wherein after noticing the earlier pronouncements in the case of Nar Narain Mishra and Sukhan Singh as well as the judgment of the Apex Court in the case of Deepak Kumar v. State of Haryana3, this Court proceeded to pass a detailed interim order restraining further excavation of minor minerals with reference to the leases executed after 31.5.2012. This interim order was challenged before the Apex Court by one Ramakant Dwivedi. The Apex Court has refused to interfere in the interim order, this judgment is reported in Ramakant Dwivedi vs. Rafiq Ahmad and others4. 10. In another case of Sulekhan Singh and Co. and others vs. State of U.P.5 wherein the question for consideration was whether the High Court was justified in quashing mining lease granted in favour of the appellants vide orders dated 24th May, 2014 and 26th May, 2014 on the ground that these leases were granted in violation of the Government Order (G.O.) dated 31st May, 2012 and the mining leases could only be granted under Chapter IV of the U.P. Minor Minerals (Concession) Rules, 1963 by way of e-tendering process, the Apex Court not only upheld the judgment of the High Court while dismissing the appeal but also directed the State to assess and issue recovery of the pecuniary benefits drawn by the appellants on the basis of illegal right granted in the matter of excavation of minor minerals subsequent to 31st May, 2012. 11. We find that the Government Order dated 21.1.2016 has been issued to the effect that in all the pending matters of lease, after 31st May, 2012, no lease deed shall be executed even if sanction/approval of any manner has been granted by the State Government earlier. 12. We may also refer to the pronouncement of the Division Bench of the Hon'ble High Court dated 25.1.2016 in the case of Jitendra Kumar vs. State Of U.P. And 6 Others Writ Petition No.- 3069 of 2016 wherein the Court has restrained the excavation activities of minor minerals with reference to the lease granted on 17th October, 2013 with a further direction to the Principal Secretary, Mining to file an affidavit after making assessment of the pecuniary advantages received by the private respondents by carrying out illegal excavation activity in terms of leases granted to them after 31st May, 2012. 13. So far as District Hamirpur is concerned, we may record that in the Public Interest Litigation (PIL) No. 19379 of 2016 (Vijay Bahadur Singh vs. State Of U.P. And 12 Ors.), this Court had noticed that several leases have been cancelled in pursuance to the interim and final orders of the Court in Writ Petition No. 19958 of 2015 (Udai Pal Singh vs. State of U.P. and others) decided on 16.10.2015. A direction was issued to the Collector, Hamirpur, the Senior 366 INDIAN LAW REPORTS ALLAHABAD SERIES Superintendent of Police, Hamirpur and District Mining Officer, Hamirpur to take immediate steps to ensure that no illegal mining activity is carried out in pursuance to the earlier mining leases which have been cancelled or even otherwise in the District. The District Authorities were directed to file their affidavits explaining the steps undertaken by them to ensure compliance of the directions of this Court. 14. So far as the issue with regard to the permission granted by the State in favour of lease holders to continue with the excavation for the obstructed period i.e. the period during which they were restrained from carrying out such activities during the subsistence of the leases, because of the orders of the Court or of the Competent Authorities, has been examined by a Division Bench of this Court in the case of Mohammad Yunus Hasan vs. State Of U.P. & 4 Others being Writ Petition No. 2558 of 2016. The provisions of Rule 68 of the Rules 1963 and the judgments of Apex Court in the case of Beg Raj Singh Vs. State of U.P. and others6 and J.P. Yadav Vs. Kanhaiya Singh and others being Civil Appeal No. 8621 of 2013 (arising out of S.L.P. (C) No. 16316 of 2006) as well as in the case of Provash Chandra Dalui and another Vs. Biswanath Banerjee and another7 have been taken note of, therein. The writ court also took note of the judgment in the case of Gopal Swarup Chaturvedi Vs. State of U.P. and others8 as well as the judgments in the case of State of U.P. and others Vs. Lalji Tandon (Dead) through L.R.S.9, and opined that no permission to continue with excavation, once the lease has out-lived its life can be granted, on the ground that during the subsistence period of lease, the lease holder was restrained from excavation of the minor minerals for a certain period under the order of the Court or the Competent Authorities. The Division Bench has also observed that in such cases, only relief which can be granted to the lease holder by the State Government is by payment of suitable compensation in terms of money. 15. For the above noted reasons and having regard to the material which has been brought on record before us, we issue following directions in all the connected writ petitions in hand:- (I) No person shall be permitted to excavate the minor minerals on the basis of the lease deeds or permission granted subsequent to 31st May, 2012 by whatever name it may be called. i.e. (a) renewal of the expired lease (b) granting fresh lease (c) right to excavate for the obstructed period (d) extension of the term of the lease (II) It shall be the responsibility of the Collector, Senior Superintendent of Police and the District Mining Officer of all the above noted Districts to ensure that no illegal mining is permitted to be carried out within their territorial limits of jurisdiction. (III) No Form MM-11 shall be issued in favour of any person possessed of any expired lease or an order granted subsequent to 31st May, 2012 in his favour for excavation of 6 All. Akhil Bhartiya Manav Kalyan Evam Samajothhan & Anr. Vs State Of U.P. & Ors. 367 minor and minerals, i.e. in the name of renewal of the lease or extension of the term of the expired lease or permission for the obstructed period on the plea that a valid lease was granted but excavation could not be carried out for some days by the lease holder during the subsistence period of lease on account of the orders of this Court or of the Competent Authorities. (IV) The Collector of the respective Districts shall file their personal affidavits giving specific reply with reference to the photographs enclosed in support of the allegation of the illegal mining as well as to the averments made in respect thereof in all the writ petitions. 16. We may record that in case it is found that any illegal mining activity is being permitted/carried on in collusion with the District Authorities, this Court will not hesitate to recommend action against the officers found responsible for the same. 17. We clarify that the directions given herein above will not affect the existing valid leases granted prior to 31st May, 2012 in the respective Districts. 18. Let notices be issued to all the private respondents in the connected petitions except respondent no. 4 of Writ Petition no. 28916 of 2016 at this stage. 19. Steps be taken within ten days by Speed Post. 20. All the respondents shall file their counter affidavit by the next date fixed. 21. List on 18.7.2016 alongwith connected matters. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 01.07.2016 BEFORE THE HON'BLE ARUN TONDON, J. THE HON'BLE MRS. SUNITA AGARWAL, J. Public Interest Litigation (PIL) No.- 29592 Of 2016 & Writ C No.- 49534 Of 2015 Akhil Bhartiya Manav Kalyan Evam Samajothhan & Anr. ...Petitioners Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioners: Amar Nath Singh