296 INDIAN LAW REPORTS ALLAHABAD SERIES [2002 ORIGINAL JURISDICTION preferential basis for a further period of CIVIL SIDE 3 years. DATED: ALLAHABAD 11.01.2002 Case law discussed w.p. 256 (MB)/97 decided on 27.03.2001(FB) BEFORE THE HON'BLE G.P. MATHUR, J. (Delivered by Hon'ble G.P. Mathur, J.) THE HON'BLE U.S. TRIPATHI, J. 1. The petitioner was granted a Civil Misc. Writ Petition No. 44196 of 2001 mining lease to excavate sand for a period of 3 years from 28.10.1998 to 29.10.2001. Katwaru …Petitioner Before the expiry of his lease he made an Versus application on 19.3.2001 for renewal of Special Secretary Industrial Development Anubhag 5 U.P. Govt., the lease for a further period of 3 years. Lucknow and others …Respondents The District Officer, Gorakhpur, by his order dated 1.10.2001 sanctioned renewal Counsel for the Petitioner: of lease for a further period of 3 years, Sri S.P. Singh which was to expire on 26.10.2004. Virendra Singh, respondent no. 6 moved Counsel for the Respondents: an application before the State Sri Ajit Kumar Singh Government that in view of subsequent S.C. Government Order dated 22.9.2001, the lease granted in favour of the petitioner Mines and Minerals (Regulation and on 24.10.1998 could not be renewed for a Development) Act 1957- read with U.P. further period of 3 years. The State Minor Minerals (Concession) Rules 1963- rule 9-A- Preferential Rights- grant of Government, thereafter, passed an order mining lease for sand or morrow or on 7.12.2001 by which the operation of Bajari or Boulder found in river bad- the order dated 1.10.2001 passed by provision for giving preference to certain District Officer, Gorakhpur was case, mentioned under the section suspended. By the same order, the District questioned- full Bench held- Provision of Officer was directed to submit his Section 9A and 53 A are ultra vires- Hon'ble Supreme Court in S.L.P. directed comments on the application moved by to maintain status Quo- Does not mean Virendra Singh so that further action in to grant renewal for another 3 years the matter may be taken. Thereafter, the after expiry of the original lease period. District Officer, Gorakhpur, passed an order on 14.12.2001 directing that the Held- Para 7 petitioner shall not be permitted to The earlier lease which had been granted excavate sand until further orders as the in favour of the petitioner on 24.10.1998 renewal of lease granted in his favour on expired on 23.10.2001 subsequent to the 1.10.2001 had been suspended by the order of Hon'ble Supreme Court dated State Government. The present writ 10.9.2001. In terms of the said order, petition under Article 226 of the the petitioner became entitled to Constitution has been filed for quashing excavate the mineral even after the the order dated 7.12.2001 of the State decision of the Full Bench on 27.3.2001 till the expiry of his lease. However, the Government and the order dated interim order does not mean that he can 14.12.2001 of the District Officer, get a fresh lease in his favour on Gorakhpur. 2 All] Katwaru Vs. Special Secretary Industrial Development, Lucknow & others 297 2. In exercise of power conferred by carrying on the occupation of excavation section 15 of the Mines and Minerals of sand or morrum as a profession and are (Regulation and Development) Act, 1957, resident of the same district in which the the State Government made the U.P. lease is applied for; is situate; Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as the Rules). (b) have established or intend to Sand is a minor mineral within the establish the aforesaid minor mineral meaning of Rule 2 (7) of the Rules. Rule based industry in the State. 3 provides that no person shall undertake any mining operations in any area within Explanation:- For the purpose of clause the State of any minor mineral to which (a) the persons belonging to socially and the Rules are applicable except under and educationally backward classes of in accordance with the terms and citizens, engaged in carrying on the conditions of a mining lease or a mining excavation of sand or morrum as permit granted under these Rules. Chapter profession means Mallah, Kewat, Bind, II lays down the procedure for grant of Nishad, Manjhi, Batham, Dhiwar, mining lease and Chapter VI lays down Themar, Chai, Sorahia, Turha, Raikwar, the procedure for grant of mining permit. Kaiwrat, Khulwat, Tiyar, Gaudia, Godia Rule 6 provides for moving an application and Kashyap and includes such other for grant of a mining lease and Rule 6-A persons as are specified as such by the provides that an application for grant of a State Government by notification in the mining lease and Rule 6-A provides that Official Gazette." an application for renewal of mining lease may be made at least six months before 3. The petitioner, Katwaru, belongs the date of expiry of the mining lease. to one of the castes mentioned in the Rule 8 lays down the manner of disposal explanation and, therefore, he is entitled of an application moved under Rule 6 for to the benefit of Rule 9-A of the Rules. It grant of a mining lease and under Rule 6- is not in dispute that the original lease A for renewal of a mining lease. Sub-rule granted in his favour on 24.10.1998 and (1) of Rule 9-A, which has a bearing on which expired on 23.10.2001 had been the controversy in hand, reads as follows: granted in view of his preferential right under Rule-9-A of the Rules. The "9-A. Preferential right of certain constitutional vires of Rule 9-A and Rule persons in respect of sand etc.:- (1) 53-A of the Rules was challenged in Writ Notwithstanding anything contained in Petition No. 256 (M/B) of 1997 (Ram Rule 9, in respect of mining lease for sand Chand Versus State of U.P. and another) or morrum or bajari boulder or any of and the matter was referred to a Full these in mixed state exclusively found in Bench. The Full Bench by the judgment the river bad, preference shall be given in and order dated 27.3.2001 held that Rules the following order to a person or group 9-A and 53-A are ultra vires to the of persons, whether or not incorporated Constitution of India and the provisions of who; Mines and Minerals (Regulation and Development) Act, 1957. Thereafter, the (a) belong to socially and educationally State Government issued a Government backward classes of citizens, engaged in Order on 13.6.2001, copy of which has 298 INDIAN LAW REPORTS ALLAHABAD SERIES [2002 been filed as Annexure-6 to the writ 6. The petitioner claimed petition Para 3 of this Government Order preferential right for grant of a mining lays down that there would be no restrain lease under Rule 9-A of the Rules as he or embargo on the mining leases which belongs to a caste which is enumerated in had been sanctioned executed before explanation appended to sub-rule 1 27.3.2001. It further provided that there is thereof. He was granted a mining lease on no prohibition in entertaining applications a preferential basis on 24.10.1998 for a for renewal of mining leases where the period of 3 years. The period of his lease question of grant of preference does not expired on 23.10.2001. Prior to the expiry arise. The State Government also filed of the lease, the Full Bench of this Court Special Leave Petition in Hon'ble by the judgment and order dated Supreme Court challenging the decision 27.3.2001 struck down Rule 9-A of the of the Full Bench in Writ Petition No. Rules as being violative of the 256(M/B) of 1997. It is stated in para 14 Constitution of India and the provisions of of the writ petition that on 10.9.2001, the Mines and Mineral (Regulation and following order was passed: Development) Act, 1957. In view of the this decision, the petitioner cannot claim "Permission to file S.L.P. allowed. any preferential right to get a mining lease. Rule 6-A of the Rules no doubt Since the validity of rule 9-A and 53- provides for renewal of a mining lease but A is subject matter of consideration in this the effect of renewal of a mining lease bunch of cases. Leave granted. which had been granted on preferential basis would be that a right acquired under Status quo as on today be Rule 9-A on preferential basis would be maintained. perpetuated or get a fresh lease of life for Intervention applications are a further period of 3 years. The copy of allowed." the order passed by the District Officer on 1.10.2001 shows that the renewal had 4. Thereafter, the State Government been granted on the same terms and issued another Government Order on conditions on which the original lease had 22.9.2001 to the effect that in view of the been granted and in addition some other order passed by the Hon'ble Supreme conditions of miner nature has also been Court, status quo be maintained. imposed. The effect of the renewal would be that the mining area would continue to 5.