ASHOK KUMAR TRIPATHI Vs. STATE OF U P

JUDGEMENT

(1.) SABHAJEET Yadav, J. By means of this petition the petitioner has sought relief of certiorari for quashing the impugned order dated 21. 3. 2006 passed by respondent No. 1 contained in Annexure-1 of the writ petition and order dated 2. 12. 2005 and 19. 9. 2005 passed by respondents contained in Annexures-2 and 8 of the writ petition and further relief in the nature of mandamus has been sought for directing the respondents No. 1 to 4 decide all the applications according to the Rule 9 (2) of U. P. Minor and Mineral (Concession) Rules, 1963 hereinafter referred to as '1963 Rules' and restrain the respondent No. 5 from mining operation in respect of disputed mining lease.

(2.) THE relief sought in the writ petition rests on the fact that the petitioner has applied for grant of mining lease in Zone 16 Khand Sankhya 100 measuring 30 acres in respect of vacant notified area situated in District Kaushambi after completing all necessary formalities as contemplated under 1963 Rules. THE respondent No. 5 has also submitted application for grant of mining lease on the same day i. e. 1. 12. 2004. A true copy of the application of the petitioner in form MM-1 is on record as An-nexure-5 of the writ petition. Along with this application the petitioner has also annexed the chalan of deposit of requisite fee, domicile certificate, character certificate, Form MM-14, certificate of financial resources of Rs. 8,00,000/-, certificate of technical services, an affidavit in support of no dues certificate and to show that the petitioner is also an auction lease holder and has special experience about mining work. It is further stated that respondent No. 5 has neither any experience about the mining work nor he has better financial resources than the petitioner. After submission of the aforesaid application a chart scheduled was prepared by the competent authority as required under the rules. In chart schedule the petitioner having been recommendation by the authorities and respondent No. 5 has no such recommendation by any authority. It is further stated that even the petitioner having preferential right under Rule 9 (1) of 1963 Rules but in spite of it, recommendation was made by Additional District Magistrate/district Magistrate for grant of mining lease in favour of respondent No. 5 vide order of Additional District Magistrate dated 19. 9. 2005 and order of District Magistrate dated 21. 9. 2005. THE same are on record as Annexures-8 and 9 of the writ petition. THE aforesaid recommendation was sent after deciding the applications of all applicants on 19. 9. 2005. A general notice dated 14. 11. 2005 of all rejected applications were pasted on the notice board of Mines Office, Kaushambi on 27. 11. 2005, whereas Rule 8 (b) of 1963 Rules specifically provides that if application for grant of mining leasjj is refused, the reasons therefore should be recorded and communicated to the applicant. In the present case no reason has been communicated to the petitioner and only for information notice has been pasted on notice board.

(3.) IN support of his aforesaid submissions learned Counsel for the respondent No. 5 has pointed out that the averments made in paragraph 3 of the counter affidavit sworn by respondent No. 5. For ready reference the averments contained in para 3 (a), (b), (c), (d) and (e) of the counter affidavit are extracted as under: " 3. That before giving para wise reply to the writ petition certain facts are necessary to be brought in the notice of this Hon'ble Court which are. as follows: (a) The petitioner of the present writ petition has not approached this Hon'ble Court with clean hands and averred the things in such a mamier or with an aim to mislead this Hon'ble Court reason being, No Dues Certificate is not enclosed along with the application of the petitioner and hence the receiving Officer has marked the application for the petitioner as incomplete. (b) The petitioner has enclosed an affidavit along with the writ petition stating therein that No Dues Certificate is not being provided by the authorities despite repeated requests, meaning hereby it is admitted case of the petitioner that No Dues Certificate, was not there along with the application of the petitioner but the same has not been enclosed with any document. To show or to demonstrate that he has tried his level best to get the copy of the No Dues Certificate from the authorities, he simply prepared an affidavit and filed it just to escape from attaching the liability of annexing the No Dues Certificate. To the best of the knowledge of the deponent the petitioner has not approached any authorities for the purposes of issuance of No Dues Certificate in his favour. (c) The Rule 6 of the U. P. Minor Minerals (Concession Rules), 1963 deals with the documents required to be accompanied with the application for grant of mining lease and sub-rule 2 of Rule 6 clearly says that if the application is not complete in any respect or is not accompanied by the fee deposited or documents mentioned in sub-rule (1) the same will be treated to be received on the date, the application is completed, meaning hereby though the application filed by the petitioner and the deponent on the very same date but the application of the petitioner was incomplete due to non availability of document shown as per Rule 6 (1) (d ). To the best of the knowledge of the deponent it has not been completed or the No Dues Certificate has been annexed with the application then the receipt of the application will be treated from the date of formality was completed. Obviously the same would be subsequent to the application made by the deponent and if the application of the deponent is received prior to the application moved by the petitioner (in complete application not treated as received till the discrepancy be removed, treated to be received on the date that discrepancy was removed) then the deponent has rightly been given the lease for mining as per Rule 9 (1 ). IN the present case, the Rule (2) does not come into play or attracted. It is only attracted if the applications are moved on the same date and treated to be received on the same date, which is not the case here. (d) The petitioner has wrongly got form MM-14 served/issued in his favour, reason being it is to be issued in favour of particular caste and not to every one so the issuance of form MM-14 is not of any advantage to the petitioner. (e) For the facts and reason stated above, the present writ petition is devoid of merits and the petitioner has also not approached with clean hands before this Hon'ble Court, hence he is not entitled for any relief under Article 226 of the Constitution, and the present writ petition is liable to be dismissed. " 6. IN reply to the submissions made by learned Counsel for the respondents, learned Counsel appearing for the petitioner has further submitted that Rule 6 (2) of 1963 Rules specifically provides that if any application is incomplete in any respect or is not accompanied by fee, deposit or documents mentioned in sub-rule (1) of Rule 6 of 1963 Rules, the District Officer is under statutory obligation to give 15 days notice requiring the applicant to complete the application in all respects or to deposit the fee or furnish documents within such time as may be specified in such notice. IN case the applicant removes the defects or cures the discrepancies pointed out by the authorities or completes his application and furnishes the required documents or deposits fee etc. required by such notice within stipulated period of time, his application shall be treated to be in order and considered and only in case he fails to do so within specified time, such application shall not be considered or in other words can be rejected by the authority concerned. And since the petitioner has cured the discrepancies pointed by the authorities in his application, consequently his application was found in order and was considered by the authorities concerned and once his application was found in order, it was obligatory upon the concerned authorities to treat his application as registered on the date when it was made to the District Officer and it cannot be treated to be of the date when he has removed or cured the defects pointed out by the authorities. At any rate on treating the application of petitioner of the date when he had cured the discrepancies or defects in moving such application would virtually defeat the very purpose and object of Rule 6 (2) of 1963 Rules. Since the petitioner has better eligibility condition and financial resources than the respondent No. 5, therefore, while considering the application for grant of mining lease the authorities were bound to have regard of the preferential rights of consideration of the petitioner over respondent No. 5 under the proviso to Rule 9 (1) of the said Rules. IN support of his submission learned Counsel for the petitioner has also placed reliance upon a decision of Division Bench of this Court rendered in Jumma Ram v. State of U. P. and others. 2007 (103) RD 12 (DB) 7. I have heard Sri U. K. Pathak, learned Counsel for the petitioner, learned Standing Counsel for respondent and learned Counsel appearing for the respondent No. 5. 8. Having heard the submissions of learned Counsel for the parties and on perusal of record, it appears that the controversy is in very short compass. The questions which arise for consideration of this Court are that as to whether the petitioner's application which was admittedly defective and incomplete on the date it was filed shall be treated to be of the date on which it was filed or of the subsequent date when it was completed in all respects and defects/discrepancies were cured and if so as to whether his preferential right for grant of mining lease under the proviso to Rule 9 (1) was to be considered by taking into consideration the matters specified in Sub-rule (2) of Rule 9 of 1963 Rules or not? 9. IN order to answer the aforesaid questions, first of all it is necessary to have a look on the scheme of statute under which mining lease under Chapter II of 1963 Rules is granted. Rule 5 of said Rules provides provision for making application for grant or renewal of mining lease. Rule 6 provides provision for compliance of certain formalities while making application for grant of mining lease. Rule 7 deals with inquiry in respect of mining lease, Rule 8 deals with disposal of application and Rule 9 deals with preferential rights of certain persons which are extracted as under: " 5. Application for grant or renewal of mining lease: (1) An application in form MM-1 for grant of a mining lease or in Form MM-1 (a) for renewal shall be addressed to the State Government. (2) The application referred to in sub-rule (1) shall be submitted in quadruplicate to the District Officer or to the officer authorized in this behalf by the State Government. Such officer shall endorse the receipt of the application on all the four copies entering the place, time and date of receipt. One copy shall be returned immediately to the person presenting the application. (3) The application referred to in sub-rule (1) shall be entered in a register of mining lease application in form MM-2.