GOPI NISHAD Vs. DISTRICT MAGISTRATE DISTRICT OFFICER

JUDGEMENT

(1.) THE core question that arises for consideration in this case is whether in the judgment rendered on 19th of February, 1996 in Civil Misc. Writ Petition No. 3659 of 1996, Rameshwar v. Zila Adhikari/Prabhari Adhikari (Khanij) Fatehpur and others, (since reported in 1996 (2) AWC 681). This Court has laid down as a proposition of law that for grant of short-term mining permit under Chapter VI of the U. P. Minor Minerals (Concession) Rules, 1963 (for short, the Rules), notice of not less than thirty days as laid down in Rules 27 and 27A of the said Rules has to be given and if so, whether that is the correct position of law?

(2.) THE factual backdrop of the case necessary for proper appreciation of the question may be stated thus : In pursuance of the notice dated 11.3.1996 issued by the District Magistrate, Fatehpur inviting applications for grant of mining permit for excavation of Moram from plot No. 10, area 294.10 acres of plot No. 21 of village Datauli by 18.3.1996, the petitioner Gopi Nishad submitted an application in the prescribed form MM-8 on 18.3.1996, filed treasury challan of Rs. 400 along with the application and deposited by bank draft and treasury challan a further sum of Rs. 3,25,000 on the same day. When all the applications received were examined, the rate quoted by the petitioner was found to be the highest and, therefore, the respondent No. 2, Officer Incharge Mines, Fatehpur, recommended the petitioner's case to the District Magistrate/District Officer, Fatehpur, for acceptance of the offer and grant of mining permit to him. When the matter stood thus, on 19.3.1996 one Ram Bali Kewat filed an application before the District Magistrate/District Officer, Fatehpur stating, inter alia, that the notice dated 11.3.1996 issued giving only seven days' time for submitting applications for grant of mining permit was contrary to the judgment of this Court in Civil Misc. Writ Petition No. 3659 of 1996, Rameshwar v. Zila Adhikari and others (supra) and the action of the authorities may amount to contempt of Court. On receiving the said application, the District Magistrate/District Officer, Fatehpur deferred the matter. Faced with the inaction on the part of the District Magistrate/District Officer, Fatehpur in the matter, the petitioner submitted an application on 23.3.1996 bringing to his notice that the judgment in Civil Misc. Writ Petition No. 3659 of 1996 does not apply to grant of mining permit under Chapter VI of the Rules and the said judgment is not an impediment in the way of granting mining permit in his favour ; but the authority took no further action in the matter.

(3.) WHEN the case was taken up by the Division Bench and attention of the Bench was drawn to the judgment in Civil Misc. Writ Petition No. 3659 of 1996, Rameshwar v. Zila Adhikari and others, the Bench felt that the case should go before a larger Bench for decision. The relevant portion of the reference order runs as follows: "While it is true that Rules 27 and 27A had absolutely no application, it is not perhaps open to this Court to say that no comparison between a procedure applicable for mining lease and procedure applicable for mining permit could not have been made by the Court. It is true that the judgment does not indicate such a comparison. It is also true that it is not very clear as to whether the mention to the lease-procedure was casual or purposive, yet the fact remains that since the copy of the judgment has also been forwarded to the Government, it is not open to this Court or atleast the propriety does not require that the said judgment be bypassed by this Division Bench on the principles of or by inviting the theory of per incuriam. Not only the propriety but the Rules of the Court would require that the matter should go before large Bench." In pursuance of the said order, the case has been listed before us.