Raj Kumar Barai Vs Mines And Geological Survey

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 2116 of 2016

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Raj Kumar Barai s/o Late Durga Prasad Barai, Resident of Near Old LIC Office, Barganda P.O. Giridih, P.S. Giridih (T), District-Giridih (Jharkhand).

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… … Petitioner Versus

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The State of Jharkhand.

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The Secretary, Department of Mines & Geology, Government of Jharkhand, Nepal House, P.O. Doranda, P.S. Doranda, DistrictRanchi.

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The Director, Department of Mines & Geology, Government of Jharkhand, Nepal House, P.O. Doranda, P.S. Doranda, DistrictRanchi.

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The Deputy Commissioner, Giridih, P.O. Giridih, P.S. Giridih (T), District-Giridih.

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The District Mining Officer, Giridih, P.O. Giridih, P.S. Giridih(T), District-Giridih.

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The Divisional Forest Officer, Giridih, P.O. Giridih, P.S. Giridih (T), District-Giridih.

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The Circle Officer, Bengabad, P.O. Bengabad, P.S. Bengabad, District-Giridih.

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… ... Respondents

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE NAVNEET KUMAR

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For the Petitioner : Mr. Shray Mishra, Advocate For the Respondents : Mrs. Darshana Poddar Mishra, AAG-I

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ORAJ JUDGMENT 09/Dated: 03^rd October, 2024

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Per Sujit Narayan Prasad, J.

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Prayer:

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The writ petition under Article 226 of the Constitution of India

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has been filed seeking following reliefs:

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“A) To issue a direction in the nature of Mandamus directing upon the Respondent authorities, in particular Respondent No.2 to forthwith decide the Application for consideration of Renewal of Lease filed within the period on 19.06.2000 for the land situated at Mauza Tikleto, under Bengabad P.S. in Plot No.49-Part and 216-Part measuring an area of Department 6.40 acres Quarring Quartz and Felspar Minerals as per the statement on Affidavit recorded in para-13 of the Supplementary Show Cause Affidavit

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filed on behalf of the Secretary, Department of Mines & Geology, Jharkhand, Ranchi as Opp. Party No. 2 in Contempt Case(Civil) No. 442 of 2012 (Arising out W.P.(C) No. 5372 of 2012 )because the petitioner was earlier granted a Prospecting License on 19.08.1978 for a period of one year after getting permission from the Government of Bihar and thereafter getting clearance from the Circle Officer, Bengabad and Divisional Forest Officer, Giridih vide their letter no.528 dated 03.02.1978 wherein the Forest Department had stated that the land in question is outside the Forest Land and therefore no permission is required and further the Petitioner was granted Mining Lease w.e.f. 27th day of December, 1986 for a period of 15 years and the same was executed amongst the Petitioner, the District Mining Officer, Giridih and the Deputy Commissioner, Giridih on behalf of the Governor, Bihar presently being Jharkhand.

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B) To issue an order in the nature of Certiorari for Go Quashing of the order vide letter no. 111/Go 21.01.2009 issued by the Deputy Commissioner, Giridih directing stoppage of Mining work(Quarrying Quartz and Felspar Minerals).

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C) To issue an order in the nature of Certiorari for Quashing of the order vide letter no. 109/M dated 29.01.2009 issued by the District Mining Officer, Giridih whereby acting on the letter of the Deputy Commissioner, Giridih, the above said authority has directed to stop the Mining Work (Quarring Quartz and Felspar Minerals).

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D) To issue an order in the nature of Mandamus directing upon the authorities to forthwith allow Mining Work (Quarring Quartz and Felspar Minerals) in view of the reports of the District Administration verifying on different aspects to establish the genuineness of license and also on the ground of Revenue Loss to the Exchequer.

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E) To issue an order in the nature of Mandamus directing upon the respondent Authorities to decide based on the Inspection Report dated 25.05.2010 submitted by Assistant Mining Officer, Giridih to the Deputy Commissioner, Giridih for taking immediate steps for Mining Work in favour of the petitioner in the facts and circumstances of the case but the same has been referred to the relevant authority for "Marg Darshan" by the Deputy Commissioner, Giridih.”

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Mr. Shray Mishra, learned counsel for the petitioner has submitted that vakalatnama has been filed after getting NOC.

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The same is available on record.

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Factual Matrix:

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The brief facts of the case as per the pleading made in the writ petition which requires to be enumerated, read as under:

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The petitioner was granted mining lease at Mauza-Tikleto, P.S. Bengabad, Plot No.49-Part and 216-Part area measuring 6.40 acres Quarrying and Quartz and Felspar after getting permission

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from the Government of Bihar, whereby, on 19.08.1978, he was granted prospecting licence for a period of one year and thereafter, getting clearance from Circle Officer, Bengabad and Divisional Forest Officer, Giridih wherein it was stated that the land is outside the forest area and therefore, no permission is required and further the petitioner was granted mining lease w.e.f. 27.12.1986 for a period of 15 years.

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The petitioner, prior to expiry of the lease period, applied for grant of renewal on 19.06.2000.

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On the complaint made on 19.11.2007 which was sent to Additional Collector, Giridih to investigate and submit a report which was submitted vide letter dated 18.02.2008 and thereafter, the Deputy Commissioner, Giridih referred the aforesaid report to the District Mining Officer, Giridih to reconsider the renewal application afresh.

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The Deputy Commissioner, Giridih vide letter dated 21.01.2009 directed the Assistant Mining Officer, Giridih to submit a report in the light of the complaint and thereafter, the petitioner has not been allowed to continue with the mining work w.e.f. 21.01.2009 without waiting for the enquiry report.

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The petitioner made representation before the Deputy Commissioner, Giridih apprising about the facts and circumstances of the case and when no action was taken, again a representation dated 19.05.2009 was sent to the Deputy Commissioner, Giridih and a copy of the same was forwarded to the Assistant Mining Officer, Giridih.

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In the light of the representation, a report was called for from the Assistant Mining Officer, Giridih, in turn thereof, a report was submitted requesting the competent authority to take a decision in the matter and further opinion from the Government Pleader, Giridih was also sought for which was submitted vide report

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dated 04.02.2010 to the District/Assistant Mining Officer, Giridih.

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In addition to the aforesaid report, the Circle Officer, Bengabad also submitted his independent report on 23.04.2010 after inspection and Joint Inspection report was also submitted by the Assistant Mining Officer, Giridih and the Circle Officer, Bengabad wherein it was stated that the land in question is not under the forest area.

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Based upon the same, again a representation was submitted to the Deputy Commissioner, Giridih to allow him to continue with the mining work but the petitioner was not allowed to continue with the said mining work.

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Being aggrieved thereof, the instant writ petition has been filed.

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It is evident from the factual aspect that the petitioner was granted mining lease for area measuring 6.40 acres Quarrying and Quartz and Felspar after getting permission from the Government of Bihar, whereby, on 19.08.1978, he was granted prospecting licence for a period of one year and after getting clearance, petitioner was granted mining lease w.e.f. 27.12.1986 for a period of 15 years.

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The petitioner, prior to expiry of the lease period, applied for grant of renewal on 19.06.2000.

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The Deputy Commissioner, Giridih vide letter dated 21.01.2009 directed the Assistant Mining Officer, Giridih to submit a report in the light of the complaint and thereafter, the petitioner has not been allowed to continue with the mining work w.e.f. 21.01.2009 without waiting for the enquiry report.

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The petitioner made representation before the Deputy Commissioner, Giridih apprising about the facts and circumstances of the case on 19.05.2009.

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In the light of the representation, a report was called for from the Assistant Mining Officer, Giridih, in turn thereof, a report was submitted requesting the competent authority to take a decision in the matter.

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In addition to the aforesaid report, further the Circle Officer, Bengabad also submitted his independent report on 23.04.2010 after inspection and Joint Inspection report was also submitted by the Assistant Mining Officer, Giridih and the Circle Officer, Bengabad wherein it was stated that the land in question is not under the forest area.

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Based upon the report of the circle officer, again a representation was submitted to the Deputy Commissioner, Giridih to allow him to continue with the mining work but the petitioner was not allowed to continue with the said mining work.

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Argument on behalf of the Petitioner:

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Learned counsel for the petitioner has submitted that the direction may be given by allowing the writ petitioner to carry out the mining operation for the further period on the ground that the application which was filed for renewal of lease was within the period on 19.06.2000 but no decision was taken on the same, as such, there is no laches committed on the part of the petitioner, therefore, the period for which the petitioner has been deprived from carrying out the mining operations, needs to be extended after granting renewal.

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Argument on behalf of the Respondent:

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Mrs. Darshanna Poddar Mishra, learned AAG-I appearing for the respondent-State has vehemently opposed the prayer based upon the following stand inter alia taken in the counter affidavit.

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(i) The stand has been taken that the petitioner was asked to submit the Environment Clearance Certificate vide letter no.2776 dated 17.12.2014 for the applied area and was also asked to submit Forest Clearance from MoEF & CC.

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(ii) It has further been stated none of the requisite papers were submitted by the petitioner before the constituted committee, hence, on 12.01.2015 committee recommended for cancelation of renewal application of the aforesaid mining lease.

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(iii) It has also been stated that the petitioner failed to submit the necessary certificates and documents relating to statutory clearances with regard to the land in question, as such, no renewal of lease can be granted to the petitioner.

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In addition to the aforesaid, ground has also been taken that the renewal order cannot be passed in view of the amendment in the statute wherein as per the provision as contained under Rule 9(1)(cha) of the Jharkhand Minor Mineral Concession (Amendment) Rules, 2017, mining lease which have been granted is not to be renewed initially on or after 31.03.2020 and subsequently not after 31.03.2022.

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It has been contended that when there is embargo as per the statutory provision then the said direction may not bee passed.

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Analysis:

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We have heard the learned counsel for the parties, perused the material available on record as also the pleading made in the writ petition and in the counter affidavit of the respondent-State.

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The prayer which has been made on behalf of the petitioner is for renewal of the lease to allow him to carry out the mining operations over the land situated at Mauza Tikleto, under Bengabad P.S. in Plot No. 49-Part and 216-Part.

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The objection has been raised by raising the legal issue that the concept of renewal having been done away by amending statutory provision.

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This Court, therefore, requires to consider that when there is statutory bar in renewal of the lease to carry out the mining operations rather the same is to be settled on the basis of auction,

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can the High Court grant such direction in exercise of power conferred under Article 226 of the Constitution of India.

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This Court in order to answer the aforesaid issue, needs to refer herein the power which is to be exercised by the High Court under Article 226 of the Constitution of India. The power which is to be exercised by the High Court under Article 226 of the Constitution of India is by way of issuance of prerogative writs and one of the same is writ of mandamus which is the subject matter in the present writ petition.

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The purpose of a writ of mandamus is to ensure to compel action and prevent arbitrary or unlawful inaction by those in authority. Mandamus serves to promote the rule of law, protect individual rights, and ensure that the government functions in accordance with the law. Its ability to compel the performance of a specific duty or act. It is a remedy used to enforce a clear legal right, ensuring that public officials, or government agencies fulfill their obligations in accordance with the law.

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The writ of mandamus is closely associated with the power of judicial review. It allows the higher courts to examine the actions or inactions of public officials or authorities to ensure they are in compliance with the law. The court reviews the legality and validity of the actions and may issue the writ to correct any deficiencies or omissions.

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But it is equally settled that the writ of mandamus cannot be issued merely because a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for mandamus. The said position is well settled by in series of decisions.

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In the case of State of U.P. and Ors. v. Harish Chandra and Ors. (1996) 9 SCC 309 at paragraph 10, the Apex Court held as follows:

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“ 10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition....”

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Further, in the decision reported in Union of India v. S.B. Vohra

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(2004) 2 SCC 150 the Hon’ble Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.

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In the decision reported in Oriental Bank of Commerce v. Sunder Lal Jain , (2008) 2 SCC 280 the Hon’ble Apex Court held that Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty. The relevant paragraph are being quoted as under:

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“11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:

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“Note 187.—Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.

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Note 192.—Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary,

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however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.

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Note 196.—Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned—an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances.

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Note 206.— … The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his

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12. These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145 : AIR 1977 SC 2149] after referring to the earlier decisions in Lekhraj Sathramdas Lalvani v. N.M. Shah [AIR 1966 SC 334] , Rai Shivendra Bahadur (Dr.) v. Nalanda College [AIR 1962 SC 1210] and Umakant Saran (Dr.) v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964] this Court observed as follows in para 15 of the Reports (SCC): (Sipahi Singh case [(1977) 4 SCC 145 : AIR 1977 SC 2149] , SCC pp. 152-53)

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“15. … There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. … In the instant case, it has not been shown by Respondent 1 that there is any statute or rule having the force of law which casts a duty on Respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that Respondent 1 was not entitled to apply for grant of a writ of mandamus under Article 226 of the Constitution and the High Court was not competent to issue the same.”

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The mandamus which is being sought for by the High Court in exercise of power conferred under Article 226 of the Constitution of India is to be issued if there is in-action on the part of the State and if such action is statutorily been directed to be performed by the State authority. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Hari Krishna Mandir Trust vs. State of Maharashtra and Ors., (2020) 9 SCC 356 wherein at paragraphs-100 and 101, it has been observed which reads as under:

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“100. The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a writ of mandamus or in the nature of mandamus, but are dutybound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a statute, or a rule, or a policy decision of the Government or has exercised such discretion mala fide, or on irrelevant consideration.

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101. In all such cases, the High Court must issue a writ of mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority.”

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It is, thus, evident that the mandamus is to be issued under Article 226 of the Constitution of India if there is any in-action on the part of the State.

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This Court, in the backdrop of the aforesaid settled position is now adverting to the facts of the case in order to consider as to whether there is any in-action on the part of the State so as to issue mandamus in the present case to issue direction upon the State to renew the lease.

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It further needs to refer herein that the issue of mining lease was the subject matter before the Hon'ble Apex Court wherein the Hon'ble Apex Court in the case of Goa Foundation v. Union of India & Others, reported in 2014 (6) SCC 590 , has observed and direction has also been given, relevant paragraphs are being reproduced as under:

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“ 87. In the result, we declare that:

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87.1. The deemed mining leases of the lessees in Goa expired on

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22-11-1987 and the maximum of 20 years renewal period of the

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deemed mining leases in Goa expired on 22-11-2007 and consequently mining by the lessees after 22-11-2007 was illegal and hence the impugned Order dated 10-9-2012 of Government of Goa and the impugned Order dated 14-9-2012 of MoEF, Government of India are not liable to be quashed.

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88. And we direct that:

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88.1. MoEF will issue the notification of eco-sensitive zones around the national park and wildlife sanctuaries of Goa after following the procedure discussed in this judgment within a period of six months from today.

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Further, the Hon'ble Apex Court in the judgment rendered in Goa Foundation vs. Sesa Sterlite Limited, (2018) 4 SCC 218 wherein the issue of renewal of the mining lease was the subject matter, by taking into consideration the fact in entirety has laid down the proposition that the renewal of the lease cannot be said to be just and proper rather the lease is to be allotted on the basis of the fresh auction. Relevant paragraph of the said judgment is being reproduced as under:

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“ 154.1. As a result of the decision, declaration and directions of this Court in Goa Foundation [Goa Foundation v. Union of India, (2014) 6 SCC 590] , the State of Goa was obliged to grant fresh mining leases in accordance with law and not second renewals to the mining leaseholders.

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154.2. The State of Goa was not under any constitutional obligation to grant fresh mining leases through the process of competitive bidding or auction.”

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The legislation has also been amended and the State of Jharkhand has also come out with the amended legislation by making amendment in the Jharkhand Minor Mineral Concession Rules, 2004 amended in the year 2017, whereby and whereunder, the following amendment has been inserted as under Rule 9(1)(cha) which reads as under:

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“9(1)(च) सरकारी एवं 05.00 हे० से अधिक के रैयती पर ्ቚा्቎ वैसे खनन प्ሾे , जो नवीकरण अ्ቌ र्गत थे एवं पयागवरणीय ीकृधत/खनन योजना ्ቚा्቎ नहीं रहने के कारण कालधतरोधहत हो र्ये हो, उनके प्ሾे की अवधि प्ሾा ीकृधत/नवीकरण की धतधथ से 31 माचग, 2022 तक के धलए अवधि धव्ቜ ाररत मानी जाएर्ी, वशते धक अधिसूचना की धतधथ के पूवग खनन प्ሾा के अ्ቭ ीकृधत/र्ቌ / यर्त होने का आदेश नहीं पाररत धकया र्या है,

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पर्ቌु वैसे खनन प्ሾे पर कोई खनन तब तक नहीं धकया जा सकेर्ा, जबतक धक खनन हेतु आव्ብ क पयागवरणीय ीकृधत/वन एवं पयागवरण धवभार् की ीकृधत/खनन योजना ीकृधत ्ቚा्቎ नहीं हो जाता है । आवेदक को सभी वांधित अनाप्ቈी 180 धदनों के अ्቎ र समधपगत करना होर्ा ।“

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It is evident from the aforesaid proposition that the mining lease is not to be renewed rather all the mining lease is to be settled on the basis of auction, however, cut-off date was provided initially up to 31.03.2020 and thereafter, it was extended up to 31.03.2022 with the specific stipulation that after the aforesaid cut-off date, the mining lease will be settled only through auction.

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Adverting to the factual aspect herein, the case of the petitioner is that the renewal application was filed on 19.06.2000 but the same, by one reason or the other, has not been renewed and in the meanwhile, amendment has come in the statute.

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The contention has been raised that there is no laches committed on the part of the petitioner then why the petitioner will be made to suffer.

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This Court is of the view that it is not a case of suffering of the petitioner rather it is the case of action to be taken on the basis of the judgment passed by the Hon'ble Apex Court in Goa Foundation v. Union of India & Others (supra) and the subsequent amendment in the Statute.

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The judgment so passed by the Hon'ble Apex Court in Goa Foundation (supra) and as per the provision of Article 141 of the Constitution of India even though no amendment is being incorporated in the statutory provision then also the judgment pronounced by the Hon'ble Apex Court laying down the proposition will be the rule of land. Therefore, this Court is of the view that once the Hon'ble Apex Court has laid down the proposition not to renew the lease rather to settle the lease on the basis of auction, the same will have its effect from the date of the

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judgment passed by the Hon'ble Apex Court in the case of Goa Foundation (supra).

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Conclusion:

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Admittedly herein, the mining work of the petitioner was stopped and petitioner made several representations to allow him to continue with the mining operations but the same was pending consideration and after the judgment pronounced by the Hon'ble Apex Court and the statute having been amended by the State of Jharkhand by putting embargo in renewal of lease on the basis of the law laid down by the Hon'ble Apex Court, this Court is of the view that merely the application for renewal was pending that does not confer any right to the petitioner to get the lease renewed contrary to the proposition laid down by the Hon'ble Apex Court as also the provision as contained under rule 9(1)(cha) of the Rules, 2017.

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It needs to refer herein that the protection is to be given to a person concerned only where the right will be said to be vested on the principle of accrued right. It requires to refer the definition/meaning of vested/accrued right.

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Rights are 'vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights.

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In Webster's Comprehensive Dictionary (International

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Edition) at page1397, the word 'vested' is defined as a tenure subject to no contingency; complete; established by law as a permanent right, vested interest.

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The word 'vested' is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word 'vest' has also acquired a meaning as "an absolute or indefeasible right". It had a

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'legitimate' or "settled expectation" to obtain right to enjoy the property etc. Such "settled expectation" can be rendered impossible of fulfilment due to change in law by the legislature. Besides this, such a "settled expectation" or the so-called "vested right" cannot be countenanced against public interest and convenience which are sought to be served by amendment of the law.

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Thus, "vested right" is a right independent of any contingency. Such a right can arise from a contract, statute or by operation of law. A vested right can be taken away only if the law specifically or by necessary implication provide for such a course.

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In the light of the definition of the "vested right", it is evident that right accrues to person or persons attached to an institution or building or anything whatsoever, meaning thereby, if an incumbent is claiming a vested right, he is to substantiate before the court of law that the right has been created in his favour by an order passed by the competent authority in accordance with law.

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It is evident from the definition of the vested right that right would be said to be vested right, permanent and continuous in nature and if that be so, the question of prejudice or following of principles of natural justice will arise.

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The settled position of law is that once the right has been accrued, the subsequent rule framed carving out the eligibility criteria will not be considered to be a reason to recall the benefit already granted due to the reason that a vested right has been created. Here, it is relevant to refer the definition of vested right as has been held by Hon'ble Apex Court in MGB Gramin Bank v. Chakrawarti Singh [(2014) 13 SCC 583] at paragraph 11, 12 and 13, which read hereunder as:-

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“ 11 . The word “vested” is defined in Black's Law Dictionary (6th Edn.) at p. 1563, as:

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“Vested.—fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not

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contingent; not subject to be defeated by a condition precedent. Rights are ‘vested’ when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest inproperty founded on anticipated continuance of existing laws, does not constitute ‘vested rights’.”

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12. In Webster's Comprehensive Dictionary (International Edition) at p. 1397, “vested” is defined as law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest.

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13. Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision/scheme could be changed.”

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Further, so far as the question of taking away the vested right is concerned, the Hon'ble Apex Court has laid down the proposition in the case of Chairman, Railway Board and Others v. C.R. Rangadhamaiah and Others reported in (1997) 6 SCC 623 at paragraph 24 which reads hereunder as :-

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“ 24. In many of these decisions the expressions “vested rights” or “accrued rights” have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon [AIR 1967 SC 1889], B.S. Vedera [AIR 1969 SC 118] and Raman Lal Keshav Lal Soni [(1983) 2 SCC 33].”

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This Court is now to examine that merely keeping the application pending will be said to create a right said to be vested right.

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The answer of this Court will be in negative because of the reason that merely making an application cannot be said to be accrual of right and hence, in view of the judgments passed by the Hon'ble Apex Court in Goa Foundation cases (supra) and in absence of

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15

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W.P.(C) No. 2116 of 2016

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any right having been accrued in favour of the petitioner, no relief can be granted contrary to the statutory provision.

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