PREM NATH SHARMA Vs. STATE OF U P

JUDGEMENT

(1.) U. P. Singh, J. The controversy in these writ petitions centres round the true scope and interpretation of Rule 72, as amended by the U. P. Minor Minerals Con cession (21st. Amendment) Rules, 1994, as also, Rule 9 of the U. P. Minor Mineral (Concession) Rules, 1963. The amended Rule 72 may be noticed : "72. Availability of area for re-grant on mining lease to be notified.- (i), If any area, which was held under a mining lease under Chapter II or on reserved under Section 17-A of the Act becomes available for regrant on mining lease the District Officer shall notify the availability of the area through a notice inviting for applications for grant of mining lease specifying a date, which shall not be earlier than thirty days from the date of notice and giving description of such area and a copy of such notice shall be displayed on the Notice Board of his office and shall also be sent to Tehsildar of such area and the Director. (ii) The applications for grant of mining lease under sub-rule (i) shall be received within seven working days from the date specified in the notice referred to in the said sub-rule. If, however, the number of applications received for any area is less than three, the District Officer may further extend the period for seven more working days and if even thereafter, the number of applications remains less than three, the District Officer shall notify the availability of the area afresh in accordance with the said sub-rule. (iii) An application for grant of mining lease for such area which is already held under a lease or notified under sub-rule (1) of Rule 23 or reserved under Section 17-A of the Act and whose availability has not been notified under sub-rule (1) shall be deemed to be premature and not paid shall be refunded. " Rule 9 of the U. P. Minor Mineral (Concession) Rules, 1963 reads: "9. Preferential right of certain persons.- (1) 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 gr-nt of lease over the applicant whose applica tion was received later: Provided that where such applications are received on the same day, the State Govern ment may after taking into consideration the matters specified in sub-rule (2), grant the mining lease to such one of the applicants as it may deem fit. (2) The matters referred to in sub-rule (1) are: (a) any special knowledge or experience in mining operations possessed by the ap plicant (b) the financial resources for the applicant; (c) the nature and quality of the technical staff employed or to be employed by the applicant; (d) the conduct of the applicant in carrying out mining operations on the basis of any previous lease or permit and in complying with conditions of such lease or permit or the provisions of any law in connection therewith; and (e) such other matters as may be considered necessary by the State Government. "

(2.) IN Writ Petitions No. 15290 of 1995 and 16886 of 1995 the petitioner is Prem Nath Sharma and in Writ Petition No. 15338 of 1995 the petitioner is one Achintya Kumar Tripathi and respondent No. 3 is Prem Nath Sharma. IN the first writ petition the petitioner seeks a writ of mandamus to command the respondents to execute the lease deed in his favour pursuant to the sanction for grant of lease dated 5- 5-95. During the pendency of this writ petition a fresh notice dated 30-5-1995 (Annexure-10) was issued by the Government cancelling the grant of lease in favour of the petitioner. That gave a fresh cause of action and the petitioner challenged the validity of Annexures-8 and 10 by filing the subsequent Writ Petition No. 16886 of 1995. The other writ petition No. 15358 of 1995 was filed by Achintya Kumar Tripathi also during the pendency of this writ petition seeking a writ of mandamus restraining the respondents not to execute the lease deed in favour of the petitioner but to issue a direction to grant the mining lease in question to him on the basis of preferential right claimed under Rule 9 of 1963 Rules.

(3.) IT may be stated that the petitioner was holding the mining lease of the area in question uninterruptedly since 1977 till the expiration of his last lease on 31-3-1995. Hi is a Mechanical Engineer holding a mechanical degree having pursued higher studies in United Kingdom and he had been engaged in such mining opera tion over this plot of land since the year 1977. He invested huge amount in setting up the requisite machineries and in building up the infra-structure for carrying out the mining operations. Thus he claimed to have possessed enough experience in this field. He further claimed that Sri Achintya Kumar Tripathi the petitioner in the second writ petition was a newcomer to the field. .