DINESH PRATAP DWIVEDI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THE petitioner was, admittedly, granted lease for mining operation for a period of five years in respect of plot nos. 148, 149, 150, 151 and 222, total area being 3.80 acres, situate: in village Misirpur, Tappa Manda, Pergana Khalragarh, Tahsil Meja, district; Allahabad, by respondent no. 1 on 21-4-1989 under the U. P. Minor Minerals (Concession) Rules, 1963 ('the Rules', for short). THE said lease was due to expire on 20-4-1994 and, therefore, the petitioner applied afresh vide application dated 21-3-1994 for obtaining lease in respect of the aforesaid plots Respondent no. 5 also applied vide application dated 2-3-1994 for obtaining lease in respect of plot nos. 149, 151. 222, 217-Ka and 217-Kha. In this report dated 18-4-1994 (Annexure "5" to the writ petition) the Geological Officer, respondent no. 4. stated that the topographical map, which was not attached with the application dated 2-3-1994, was supplied by respondent no. 5 with an application dated 24-3-1994 in which he further prayed that in place of plot no. 217. plot nos. 148 and 150 be included in the application dated 2-3-1994, As in the opinion of the Geological Officer application dated 2-3-1994 of respondent no. 5 was completed on 24-3-1994 he therefore, reported that the application of respondent no. 5 be deemed to have been completed in all respects on 24-3 -1994 within the meaning of sub-rule (2) of Rule 6 for the purpose of Rule 9 of the Rules.

(2.) IN paragraph 6 of the counter-affidavit it is submitted that there were two applications only-one by the petitioner and the other by respondent no. 5 for obtaining lease of the plots in respect of which lease was earlier granted for five years to the petitioner.

(3.) FROM the impugned order (Annexure "4" to the writ petition) it is manifest that the sole basis to accept: the application of respondent no. 5 was the consent having been given by i:he land owners. It is not disputed that there was no consent, in favour of the petitioner for the relevant period commencing from 1994. The question for consideration is whether the application of the petitioner dated 21-3-1994 (Annexure "2" to the writ petition) was validly rejected by the respondents Sub-rule (1) of Rule 9 of the Rules clearly provides where two or more persons have applied for a mining lease in respect of the same land, the applicant whose application was received earlier shall have a preferential right for the grant of lease over an applicant whose application was received later. It clearly follows from this Rule that if two or more persons apply for identical land, then the applicant who applied earlier than others shall be preferred. The petitioner applied for plot nos. 148 to 151 and 222, for which lease was granted to him for five years in the year 1989, on 21-3-1994. Respondent no. 5 vide application dated 2-3-1994 (Annexure "3" to the writ petition) firstly applied for plot nos. 149, 151. 222. 217-Ka and 217- Kha. By another application dated 24-3-1994, which is referred to by respondent no- 4 in his report dated 18-4-1994 (Annexure "5*' the writ petition), respondent no. 5 sought amendment in his application dated 2-3-1994 that in place of plot no. 217, plot nos. 148 and 130 be substituted in the application dated 2-3-1994. This is how the petitioner contends that application dated 2-3-1994 of respondent no. 5 was not complete and the same was completed in so far as plot nos. 148 and 150 are concerned, only on 24-3-1994. It is further contended by the petitioner that if application dated 2-3-1994 is read without amendment sought by respondent no. 5 cm 24-3-1994, then if cannot be said that application dated 2-3-1994 of respondeat no. 5 and the petitioner's application dated 21-3 1994 were "in respect of the same land" within the meaning of sub rule (1) of Rule 9. FROM the amendment sought on 24-3-1994 by respondent no, 5 for adding plot nos. 148 and 150 in bis application dated 2/3/1994 In place of plot nos. 217Ka and 217-Kha. it is amply clear that application of respondent no. 5 dated 2-3-1994 was cot for the same land for which the application dated 21-3-1994 was made by the petitioner and that the description of land in the application of responded no. 5 became matching to that of the petitioner's application only on 24-3-1994. This being so the application of the petitioner dated 21/3/1994 was certainly first in point of time and, therefore, the petitioner shall have a preferential light for the giant of lease over respondent no. 5, who applied for the same land much later on 24-3-1994.