RAM VRIKSHA YADAV Vs. DISTRICT MAGISTRATE AND ANOTHER

JUDGEMENT

(1.) The petitioner, who is a prospective participant at the proposed auction for settlement of right to excavate sand in the district of Gorakhpur, challenges the notice given by the District Magistrate, Gorakhpur for holding auction on 21st Sept., 1991. It is prayed that a writ in the nature of certiorari be issued, quashing the impugned notice and also for issue of a writ of mandamus directing the respondents not to lease out the right to excavate sand in pursuance of auction notice published on 22nd Aug., 1991.

(2.) The facts necessary for the decision of the writ petition are that the State of U.P. in exercise of its power conferred on it by Sec. 15 of the Mines and Minerals (Regulation & Development) Act, 1957 framed the U.P. Minor Minerals (Concession) Rules 1963. For the purpose of this case, it is not necessary to advert all the rules except rules contained in Chapter IV of the Rules, which deal with the disposal of right to excavate sand by auction system. Rule 23 provides that the State Government may by general or special order declare the area or areas which may be leased out by auction or tender or by auction-cum-tender. It is not disputed that in the present case proposed lease for excavation of sand has to be settled by auction system. The other rule relied upon by the counsel for the petitioner is rule 27, which is extracted below:-

(3.) On the strength of Rule 27, it was argued that the proposed auction for settlement of right to excavate the sand is not conformity with the Rule 27 of the Rules, therefore, no such auction can take place on 21st Sept., 1991. In nutshell the argument is that there is neither thirty days notice as required to be given before the date of auction nor the notice indicate the terms and conditions of the lease on which the right to excavate sand is to be settled, therefore, proposed auction is illegal. Under Rule 27-a, the District Officer is required to give at least thirty days notice before the date of auction in the manner enumerated in Clause-a of the Rule 27 of the Rules. Admittedly notice was published in daily Aaj in its issue on 22nd Aug., 1991 that auction is to be held on 21st Sept., 1991 and prospective bidders can obtain the details of terms and conditions of auction from officer incharge (Mines). No doubt there is no thirty days notice before the proposed date of auction, as the period of notice falls short by three days. The question arises for consideration is, can it be said that proposed auction is illegal not being in conformity with Rule 27 providing for thirty days notice before the date of auction. It is not disputed that minor mineral vests in the State and State being owner of minerals expects adequate price for parting with its right to excavate the minor minerals. Judged in the background the primary intention behind the giving of thirty days notice before the date of auction is to attract more bidders at the auction and make the auction more comparative so that State may get best price for its minerals and further no prejudice is caused to it due to lack of notice to the people. The breach of rule does not render the proposed auction void in all cases in the absence of prejudice to the State. See N.C. Kapoor Vs. D.F.O., 1972 AWR 265 while holding that the proposed auction is not void on account of the fact that period of notice falls short by days or week in absence of prejudice caused to the State, we may not be taken to have held that no notice is required to be given of such auction. Large number of citizens are engaged in the trade of minor minerals and State is expected to give fair opportunity to its citizens to participate in such auction. In other words State must ensure that auction is fair. In the present case petitioner has notice of proposed auction and he cannot be permitted to challenge the proposed auction. We are, therefore, of opinion that the proposed auction cannot be said to be illegal on the ground that no thirty days clear notice has been given prior to the date of holding of auction for settlement of right to excavate sand.