Dismissed

Anar Singh v. State of U.P. and 3 Others

Allahabad HC24 Jan 2019WRIC/2297/2019

Case brief

AI extract

What is this about?

The court held that in the absence of a statutory provision permitting extension, the court cannot enlarge the three-month period prescribed for a mining permit under Rule 52-A of the Uttar Pradesh Minor Minerals Rules, 1963, nor can relaxation under Rule 68 be invoked for such permits.

What did the court decide?

The writ petition was disposed of with observations; no extension of the period was granted.

Anar Singh Vs State of U.P. and 3 Others — Specific Performance | Allahabad HC (2019)

AFR

Court No. - 38

Case :- WRIT - C No. - 2297 of 2019

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Petitioner :- Anar Singh

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Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Santosh Kumar Tiwari Counsel for Respondent :- C.S.C.

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Hon'ble Abhinava Upadhya,J.

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Hon'ble Dr. Yogendra Kumar Srivastava,J.

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(Per Dr. Yogendra Kumar Srivastava,J.)

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Heard Sri S.K.Tiwari, learned counsel for the petitioner and Sri Ramanand Pandey, learned Additional Chief Standing Counsel for the State respondents.

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The petitioner, who claims to be a bhumidhar of plot no. 378 area 0.344 hectare, 3/31 area 0.183 hectare, 3/34 area 0.113 hectare, 3/38 area 0.372 hectare situated in village Chandwa Pukhta, Tehsil Sahawar, District Kashganj, applied for grant of mining permit for removal of sand accumulated due to flood on his agricultural land, and pursuant thereto he was granted mining permit on 7.6.2018 for a period of three months which period expired in the month of September, 2018. The petitioner submits that due to some procedural delay, he was not able to commence the mining operations immediately upon grant of the mining permit and in view thereof, he has not been able to excavate the total quantity of the sand for which

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permission had been granted, accordingly a representation dated 26.10.2018 is said to have been filed before the District Magistrate, Kashganj for grant of extension of time. The present petition has been filed seeking a direction to the authorities to extend the period of permit and to decide pending representation in this regard.

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Sri Ramanand Pandey, learned Additional Chief Standing Counsel submits that there is no provision under the relevant rules for grant of extension of the period of mining permit.

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In order to appreciate the rival contentions of the parties, we may refer to the relevant statutory provisions.

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Under Rule 15 of the Mines and Minerals (Regulation and Development) Act, 1957¹ , the State Government has been empowered to make rules in respect of minor minerals, and in terms thereof the Uttar Pradesh Minor Minerals (Concession) Rules, 1963² were notified. Chapter VI of the aforementioned rules relates to mining permits and Rule 52-A under the said Chapter provides the procedure for grant of mining permit on an agricultural land. For ease of reference, Rule 52-A of the Rules, 1963 is being extracted below:

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"52-A. Procedure for grant of mining permit on agricultural land - (1) Notwithstanding anything contained in Rule 72, the bhumidhar of agricultural land may apply for grant of mining

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1 the Act, 1957

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2 the Rules, 1963

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permit for removal of sand and morrum accumulated due to flood on his agricultural land in Form MM-8, in triplicate, to the District Officer, accompanied by a fee of Rs. 2000 (Rupees Two thousand) only, and two copies of a Cadastral Survey Map on which the area, applied for, is clearly marked.

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(2) The District officer shall cause an enquiry, if deemed necessary, through concerned Tehsildar and Mines Officer/Mines Inspector on the following points -

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(a) Whether the sand and morrum have been accumulated on the applied land due to flood;

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(b)Whether the name of the applicant/applicants is/are recorded as bhumidhars on the applied area;

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(c) Whether due to accumulation of sand and morrum, the applicant/applicants is/are suffering loss on account of non-utilization of such applied land;

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(d) Whether such land was utilized for agricultural purposes during the past years;

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(e) Whether the quantity of the minor mineral, applied by the applicant, is available on the applied area;

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(f) Whether the applied area for mining permit is suitable for mining.

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(3) In the light of aforementioned point-wise report submitted by the Tehsildar/Mines Officer or Mines Inspector, as the case may be, the District Officer may grant the mining permit for a period not more than three months in a Fasli year in favour of the bhumidhar, after realizing the amount of royalty in advance.

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4. Except abovementioned provisions, the other provisions of these rules will apply mutatis mutandis to the mining permit granted under this rule."

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In terms of the aforementioned Rule 52-A, an application for grant of mining permit for removal of sand and morrum accumulated due to flood on an agricultural land may be submitted and upon due enquiry and in the light of a point-wise report

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submitted under sub-rule (2) the District Officer may grant the mining permit for a period not more than three months in a Fasli year in favour of the bhumidhar after realizing the amount of royalty in advance as provided for under sub-rule (3) of Rule 52-A.

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It appears that the State Government in order to give effect to the aforementioned Rule 52-A issued a Government Order dated 2nd November, 2017 which also provides for grant of mining permit for a period not more than three months in a Fasli year after following the procedure under Rule 52-A.

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In the present case, the order dated 7th June, 2018 issued by the Additional District Magistrate/Incharge Officer, District Kashganj is on record which contains reference of the order of the District Magistrate dated 6.6.2018 granting approval to the mining plan submitted by the petitioner.

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Rule 52-A begins with non obstante clause and in terms thereof the provisions for grant of mining permit over the agricultural land to a bhumidhar for removal of sand and morrum accumulated due to flood on his agricultural land, have been given an overriding effect over Rule 72 which provides for a notification of the availability of an area which was held under mining lease through a notice inviting applications for grant of mining lease.

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It has been consistently held that the non obstante nature of a provision although may be of wide amplitude, a non obstante clause must be confined to

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the legislative policy and it cannot be given effect beyond the same.

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While interpreting a non obstante in the case of Central Bank of India Vs. State of Kerala and others³ , it was held as follows :-

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"A non obstante clause is generally incorporated in a statute to give overriding effect to a particular section or the statute as a whole. While interpreting non obstante clause, the Court is required to find out the extent to which the legislature intended to do so and the context in which the non obstante clause is used. This rule of interpretation has been applied in several decisions."

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In the case of ICICI Bank Ltd. Vs. SIDCO Leathers Ltd. and others⁴ , the Supreme Court held as follows :-

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"36. The non-obstante nature of a provision although may be of wide amplitude, the interpretative process thereof must be kept confined to the legislative policy. …....................

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37 A non-obstante clause must be given effect to, to the extent the Parliament intended and not beyond the same."

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The overriding effect given to Rule 52-A in terms of the provisions contained therein is for the purpose of granting mining permit to a bhumidhar for removal of sand and morrum accumulated due to flood on his agricultural land and the period of the mining permit having been specified as being for not more than three months, any interpretation which would seek enlargement of the said period would be contrary to the intent of the rule and as per the settled principles of statutory construction such an interpretation is to be avoided.

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In terms of sub-rule (3) of Rule 52-A the maximum

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3 (2009) 4 SCC 94

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4 (2006) 10 SCC 452

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period for grant of such mining permit being three months, this Court is of the view that in absence of any provision permitting extension of the said period, no grant of extension of the period of mining permit issued under Rule 52-A can be made.

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In a recent judgment in the case of Reji Thomas and others Vs. State of Kerala and others⁵ , the question as to whether the High Court in exercise of its power under Article 226 of the Constitution of India could have extended the statutory period in the context of a prescribed time schedule for preferring an election petition fell for consideration and it was held that once the mechanism provided under the statute provides for a time schedule, in absence of a provision in the statute for enlarging the time under any given circumstances, no Court can extend the time period and in such matters the Court has to adopt strict interpretation of the provisions. The observations made by the Supreme Court are as follows :-

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"11. Section 69 of the Act is the mechanism provided by the State Legislature as contemplated under Article 243 ZK (2) of the Constitution of India. Once the mechanism provided under the Statute provides for a time schedule for preferring an election petition, in the absence of a provision in the Statute for enlarging the time under any given circumstances, no court, whether the High Court under Article 226 or this Court under Article 32, 136 or 142 of the Constitution can extend the period in election matters. In the matter of limitation in election cases, the Court has to adopt strict interpretation of the provisions. This Court in Smita Subhash Sawant Vs. Jagdeeshwari Jagdish Amin & Ors. reported in (2015) 12 SCC 169, though in a different context,

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5 AIR 2018 SC 2236

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has held at paragraph 33 that "In the absence of any provision made in the Act for condoning the delay in filing the election petition, the Chief Judge had no power to condone the delay in filing the election petition beyond the period of limitation prescribed in law".

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12. In Union of India & Anr. vs. Kirloskar Pneumatic Co. Ltd. reported in (1996) 4 SCC 453, at paragraph 10, this Court has held as under :-

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".......The power conferred by Articles 226/227 is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities, who are the creature of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendment. Maybe the High Court or a civil court is not bound by the said provisions but the authorities under the Act are. Nor can there be any question of the High Court clothing the authorities with its power under Article 226 or the power of a civil court. No such delegation or conferment can ever be conceived."

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We may note that in the case of Smita Subhash Sawant Vs. Jagdeeshwari Jagdish Amin and others⁶ referred to in the case of Reji Thomas and others (supra), while considering the delay of one day in filing an election petition, it was held that in absence of any provision made in the act for condoning the delay in filing the election petition, the Court had no power to condone the delay beyond the period prescribed in law.

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In State of W.B. Vs. M.R. Mondal and another⁷ , the legality of the extension of a government contract governed under statutory rules fell for consideration and it was held as follows :-

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".......................Thus, without the concurrence of the

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6 (2015) 12 SCC 169

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7 (2001) 8 SCC 443

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Central Government,which also has to be necessarily in conformity with the statutory Rules governing the same, there cannot be any extension granted in favour of the plaintiff and the High Court could not have directed the doing of a thing not permissible in or contrary to the statutory Rules.

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We are thus of the view that the maximum time period for grant of mining permit under Article 52-A of the Rules, 1963 having been provided in terms of subrule (3) thereof, this Court cannot grant enlargement of the said time period.

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This Court may also take notice of the provisions under Rule 68 wherein the State Government is empowered to grant relaxation of the rules in special cases. Rule 68 of the Rules, 1963 reads as follows :-

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“68. Relaxation of rules in special cases – The State Government may, if it is of opinion that in the interest of mineral development it is necessary so to do, by order in writing and for reasons to be recorded authorised in any case the grant of any mining lease or the working of any mine for, the purpose of winning any mineral on terms and conditions different from those laid down in these rules.”

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In terms of Rule 68, the State Government may, if it is of opinion that in the interest of mineral development it is necessary to do so, by order in writing and for reasons to be recorded authorise in any case the grant of any mining lease or the working of any mine for the purpose of winning any mineral on terms and conditions different from those laid down in the rules.

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A plain reading of Rule 68 would show that the discretion conferred upon the State Government for

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relaxation of rules is to be exercised in special cases where the State Government is of the opinion that it is in the interest of mineral development necessary to do so. The provision to grant relaxation under Rule 68 would not be applicable in the case of a mining permit granted under Rule 52-A which is only for the purpose of enabling the bhumidhar of an agricultural land to remove the sand and morrum which has accumulated due to flood on his agricultural land.

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The scope of Rule 68 has been considered by this Court in Mohammad Yunus Hasan Vs. State of U.P. and others⁸ , wherein repelling the claim raised by the petitioner therein for extension of the term of the lease, it was held as follows :-

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“12. Since, the contention raised on behalf of the petitioner revolves around the interpretation of Rule 68 of the Minor Minerals (Concession) Rules, 1963, it would be appropriate for this Court to deal with the said provisions itself at the first instance. Rule 68 of the Minor Minerals (Concession) Rules, 1963 read as follows:-

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"68. Relaxation of rules in special cases.- The State Government may, if it is of opinion that in the interest of mineral development it is necessary so to do, by order in writing and for reasons to be recorded authorised in any case the grant of any mining lease or the working of any mine for, the purpose of winning any minerals on terms and conditions different from those laid down in these rules."

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13. From a simple reading of the aforesaid Minor Minerals (Concession) Rules, it is apparent that it confers a discretionary power upon the State Government i.e. "if it is of the opinion that in the interest of mineral development it is necessary so to do, by order in writing and for reasons to be recorded, authorize in any case the grant of any mining lease or the working of any mine for, the purpose of winning any minerals on terms and conditions different from those laid down in the Rules".

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8 2016 (5) ADJ 365 (DB)

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14. In our opinion the crucial words under Rule 68 are "in the interest of mineral development". Rule 68 does not confer a power upon the State Government, to extend the term of the lease beyond the contracted period, without following the procedure prescribed under Chapter II & IV of the Minor Minerals (Concession) Rules, 1963. The main object of Rule 68 is to provide special power to the State Government in the interest of mineral development and not to compensate the loss if any caused to a lease holder because of an order of the competent authority terminating the lease for whatever reasons it may be.

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15. Rule 68 cannot be read in the manner to suggest that the State Government, without forming any opinion that it is in the interest of mineral development to grant leases, can extend the term of an expired lease on the ground that certain loss has been caused to the lease holder because of curtailment of the term of the lease granted.”

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The aforementioned judgment has been followed in a subsequent judgment of this Court in Uma Shankar Yadav Vs. State of U.P. And others⁹ .

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In view of the aforementioned discussion, this Court is of the view that the power to grant relaxation under Rule 68 would not be attracted in the case of a mining permit granted under Rule 52-A which is for the limited purpose of enabling the bhumidhar of an agricultural land to remove the sand and morrum which has accumulated due to flood over his agricultural land.

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We may reiterate that the right to seek extension of the time period under the mining permit must either flow from the statutory provisions or from the terms of the grant of permit.

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Despite repeated queries, the counsel for the

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9 Writ-C No.55919 of 2016/decided on 11.04.2017

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petitioner has not been able to point out any other statutory provision or any condition under the terms of the mining permit whereunder the time period granted under Rule 52-A could be extended. He, however, submits that in view of the fact that due to some procedural delay he could not commence the mining operations on time and he has not been able to excavate the total quantity of the sand for which permission was granted to him under the mining permit, and a representation in this regard is pending consideration before the District Magistrate, Kashganj, a direction may be issued for disposal of the same.

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Be that as it may, in case, the petitioner's application is pending before the District Magistrate Kashganj, it is open to the authority concerned to dispose of the same in accordance with law.

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It is made clear that this Court has not expressed any view on the merits of the claim which is sought to be made by the petitioner in his application.

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With the aforesaid observations/directions, this writ petition is disposed of.

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Order Date :- 24.1.2019

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Pratima

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(Dr. Y.K.Srivastava,J.) (Abhinava Upadhya,J.)

Anar Singh v. State of U.P. and 3 Others

Case brief

What is this about?

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Anar Singh v. State of U.P. and 3 Others

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