VIRENDRA SAHNEY Vs. DISTRICT OFFICER COLLECTOR MAU

JUDGEMENT

(1.) In this writ petition brought under Article 226 of the Constitution, primary question for consideration is whether the District Officer/Collector has the jurisdiction to set aside and cancel his earlier order granting mining lease in favour of a person merely because the applications of certain others had not been considered at the time of granting the earlier lease as those applications were defective and no opportunity had been granted to remove the defects.

(2.) The Collector, Mau issued a notice dated 24-4-1995 inviting applications for grant of mining lease under Chapter II of the U. P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred as the Rules). In pursuance of that notice, 26 applications including the two made by the petitioners were received by the Collector. By an order dated 5-7-1995 mining leases were granted in favour of the petitioners. Accordingly, petitioner No. 1 was directed to deposit Rs. 3,21,300.00 and petitioner No. 2 Rs. 86,062.50p. within a period of seven days. The petitioners deposited the said amount within the specifiedperiod. In all, petitioner No. 1 has deposited Rs. 6,42,600.00 and petitioner No. 2 Rs. 1,72,125.02. On 15-7-1995, respondent No. 2 who is Khaniz Prabhari/Mines Officer Incharge district Mau, issued orders permitting petitioner No. 1 to do mining work in lot No. 1 and petitioner No. 2 in lot No. 2. Both the petitioners started mining work on 18-7-1995 and have been doing work of mining/excavation/lifting of sand since then, Form MM-11 duly signed by the District Officer was also issued to the petitioners to enable them to take away the minerals. There is no dispute that the petitioners complied with all the directions issued by respondents 1 and 2 and no default of any type was committed by them. Thereafter, complaints were received from several persons by the Collector stating that their applications for grant of mining lease had not been considered and the same had been rejected on account of clerical mistake. Thereupon, the Collector issued a notice dated 31-7-1995 to the petitioners inviting their replies. Accordingly, the petitioners filed their replies. By the impugned order dated 14-8-1995, the District Officer, Mau cancelled all the proceedings which had resulted in grant of the two leases concerning lot Nos. 1 and 2 on 5-7-1995 in favour of the petitioners and directed the issue of a fresh notice inviting applications. More than one ground was raised by the persons who challenged the grant of mining leases in favour of the petitioners. However, only one ground found favour with the District Officer. The impugned order (Annexure 13) states that when the applications were received, they were treated to be complete, but subsequently when they were scrutinised under Rule 7, it came to light that they were incomplete and so they were rejected, but if they had not been treated to be correct initially, the applicants would have removed the defects and thus a clerical mistake had occurred and so, the impugned other needed to be corrected under Rule 61 of the Rules. The petitioners have alleged that under Rule 61 only clerical and arithmetical mistakes can be corrected and since no such mistake had occurred, the power exercised by respondent No. 1 is without jurisdiction. The petitioners have also averred that besides depositing more than Rs. 8 lac towards royalty and security they have further invested more than Rs. 5 lac" in making the approach road up to the river side as there was a big cavity and big land heap and any vehicle was not able to approach the river bank for loading of the sand" and all this had to be done in view of Rule 40 of the Rules. The case of the petitioners is that if the respondents are not restrained from interfering with the mining work of the petitioners on the basis of the leases granted to them, irreparable loss and injury would be caused to them. They have sought a writ, direction or order in the nature of certiorari quashing the order dated 14-4-1995 (Annexure 13 to the writ petition) and the notice of the same date, i.e. 14-8-1995 (Annexure 14) inviting fresh applications and also a writ, direction or order in the nature of mandamus commanding and directing the respondents not to interfere with the mining work of the petitioners on the basis of the leases granted to them, in view of the impugned order passed by respondent No. 1

(3.) One counter affidavit has been filed by the Additional District Magistrate (F), Mau. He has stated that the order dated 14-8-1995 was passed to correct the mistake in exercise of the powers under Rule 61 read with section 151 of the Code of Civil Procedure as the Collector found that the applications of other persons had been rejected on account of clerical mistake. Further, it is averred that the petitioners should have availed of the remedy of appeal as provided under Rule 77 and ought not to have approached this Court by way of writ petition. A counter affidavit has also been filed by Rajendra Nishad, respondent No. 3, who was one of the applicants and at whose instance the mining leases in favour of the petitioners were cancelled by the impugned order dated 14-8-1995. He has stated that his application was complete but was illegally rejected as incomplete and no notice whatsoever was given to him to complete his application as contemplated under Rule 6 (2) of the Rules. Further, he has pleaded that respondent No. 2 had no jurisdiction to permit the petitioners to start mining operations since no mining work can take place without execution of a lease deed. A few more grounds have also been pleaded in an attempt to show that the leases were granted in favour of the petitioners in contravention of some other rules. However, we do not propose to deal with those grounds since we are not considering as to whether the leases should have or should have not been granted to the petitioners. We are primarily concerned with the question as to whether the impugnedorder had been passed by the District Officer without jurisdiction. Respondent No. 3 has also taken the plea that power of review is inherent in the authorities passing orders.