RAM PREET Vs. DISTRICT OFFICER

JUDGEMENT

(1.) PALOK Basu J. Civil Misc. , Writ Petition No. 19880 of 1997, Ram Preet v. District Officer/collector Gorakhpur and others connected with Civil Misc Writ Petition No. 20010 of 1997, Brigunath Mallan v. District Officer/collector, Gorakhpur on others, raise similar issues. It may be mentioned have that in both these writ petitions the only question which has arisen for consideration is as to whether the notice dated 28/29-4-1997 (Annexure-1 to the writ petition) is lawful and valid or not. Shri S. P Singh, learned counsel for the petitioner in both the matters have been heard at substantial legth. Shri S. G Hasnain, learned Additional Chief Standing counsel has opposed the writ petition at the admission stage who also has been heard perhaps at equal length. In view of the fact that the petitioners in both the cases are challenging the same notice, the write petitions were heard together and are being disposed of by this common judgment as prayed by the learned counsel for the parties.

(2.) BEFORE adverting to the facts mentioned in the writ petition and the relevant discussions on the points argued it may be mentioned that Uttar Pradesh Minor Minerals (Concession) Rule 1963, have been framed by the State of Uttar Pradesh on August 26, 1963 in pursuance of the powers delegated by virtue of Section 15 of the Mines and Minerals (Regulations and Development) Act, 1957. For ready reference the Uttar Pradesh Minor Minerals (Concession) Rules, 1963 is hereinafter referred to as the Concession rules. In the concession rules various amendments were incorporated from time to time inasmuch as by the 20th and 21st amendment preferential rights concerning certain section of the population have been incorporated. By the same amendemtns Rule 72 has been added and by the 20th amendment appeal and revision have been provided under rule 77 and 78 of the Concession rules. In nutshell the entire scheme f rules has been devided into eight chapters. In the instant case it is chapter 2 which is relevant because the two instant petitions relate to an advertisement calling applications for grant of mining lease. However chapter 4 deals with auction lease and chapter 6 deals with mining permit. Chapters 5 and 7 are ancillary chapters incorporating other provisions concerning the conditions which may be incorporated in the lease or the permits as the case may be. Chapter 8 has the miscellaneous provisions which incor porates Rules 61 to 79 of the concession rules out of which Rule 72 has been men tioned above a detailed reference to which shall be made little later. 4. In order to appreciate the arguments advanced with tenacity by Shri S. P. Singh it will be necessary to note here the exact con tent of the notice which is under challenge in the instant petitions. Translated into english the said notice will read as under- Sub : Declaration of ordinary moram (Baloo) area in; he river beds. All concerned are hereby informed that in the District of Gorakhpur ordinary moram avail able in the river bed in Gorakhpur in accordance with the provisions contained in Rule 24 of the Minor, Minerals (Concession) Rules 1963, notification of the State Government No. 3880/18-12-94-10/90 dated 22-9-94 which was published in the dated 27-4-94 in accordance gazette notification whereof the said, areas, for the purposes of being given on lease, are hereby declared to be available for that purpose. The description of which are given here under. In pursuance of Rule 72 ( 1) notifications made under Rule 72 (2) for the period 29-4-1997 to 28-5-1997 and for Rule 72 (2) applications may be made between 29-5- 97 and 6-6-97 in the office. The other conditions shall remain the same as are indicated in the aforesaid government notifica tion. The other informations can be obtained from the office during working hours. SI. No. Tehsil Village (Name Of Division the area) Area Name of the Mini-eral 1. Sadar Taalbalraha Inderwar 2. Sadar Jagdishpur Netwar alias pandey 3. 4. Sadar 5. Sadar 6. Sadar 7. Sahlanwa 8. Chori Chaura 9. Khajnee 10. Bansgaon 11. Goola 12. Goola Moglaha Laxhmipur Bargadhi Mohanag Kolya to Gahasaand Sihodwa (North) Mathramgiri Garya Kol Beriya Khas 1 18-01 ICha 1-00 1- Lot No. 1 From Amoli (excluding Amoli) to Barhaz 120 acre 2- Lc. No. 2 From Barhaz to Nakta 103 acre Lot No. 3 From Nakta (excluding Nakta) to Mukundwar 84 acre Lot No. 4 Mukundwar to Rajauli Bujurga 102acre Lot No. 5 From Rajauli Bujurga to Soharawar 105 acre Lot No. 6 From Soharawar (exculding Soharwar) to Ghagra river in Bunpul 120 acre Sd/- Sanjeev Saran District Magistrate Copies forwarded to: (1)All the SDMS, Tehsildar and Regional Mines Officer, Gorakhpur for information and for pasting it on the notice boards (2)Director of Information and Public Relations Directorate, Uttar Pradesh, Luck-now with the request that he may get this printed and published through the public Relation Officer, Gorakhpur in the Local Newspapers without any charges. (3)Nazir Sadar is directed to paste the notice on the notice board. Sd. /- (Sanjeev Saran) (True copy) District Magistrate 5. Three principal arguments have been advanced by Shn S. P. Singh challeng ing the correctness and validity of the notice. Those arguments are- (1) The notice is vague because it does not specify the area with regard to the item Nos. 3, 4, 5, 6, 8, 10andl2. (2) The notice is vague and defective and also contrary to Rule 10 of the Concession Rules because it mentions area more than 30 acres con-erning : item nos. 1 and alt the different areas incorporated in item No. 13 concerning the six lots mentioned therein. (3) The notice is bad, vague and defective for it does not specify the Khasra Nos. of the respective area in as much as it has omitted to specify that some individuals may be granted iease only to the extent of 30 acres which is provided in Rule 10 of the Concession Rules. 6. In order to lend support to aforesaid three arguments reliance was placed by Shri Singh on two decisions of this Court. The first one is Kamlesh Nishad v. District Of ficer/district Magistrate, Hamirpur and another, AIR 1995 Allahabad 374 and the other one is the decision of a Division Bench in Writ Petition No. 15354 of 1997, Achchey Lal v. The District Officer/collector, Mau. It is good that one of us was a member in the subsequent decision. 7. In order to appreciate whether there is force in the aforesaid three arguments some provisions have to be noted. But before doing so it may be mentioned here that Shri S. G. Hasnain, learned Additional Chief Standing Counsel has refuted all the three arguments on various grounds. He also said that the petitioner has chosen to wait till last day. Consequently he said that the petitioner's case should be dismissed on the ground of latches. However considering the arguments made for and against the petition it is not necessary to decide the issue only on the ground that the petition suffers from latches. It was further con tended by Shri Hasnain that in view of the provisions contained in the Concession rules the arguments advanced by Shri Singh have absolutely no legs to stand. He also said that the rulings cited by Shri Singh should be confined to the facts of those cases. The relevant provisions are contained in Chapter 2 and Chapter 8 which will deter mine the fate of the arguments of Shri Singh. The notice which is impugned in the petitions has already been referred to above. . It refers specifically to have been issued under the provisions contained in Section 72 of the Concession Rules. For ready refer ence only that part of Rule 72 (1) may be quoted. It reads- "72 (1 ). If any area which was held under a mining lease or reserved under Sec. 17-A of the Act, becomes, available for regrant, the District Officer shall notify the availability of the area through a notice inviting application for grant of mineral concessions 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 the Tehsildar of such area and the Director. " Sub-rule (2) provides that the District Officer shall notify the availability of the area for the purpose of receiving applica tions. Sub-rule (3) provides as to under what circumstances an application may be deemed to be premature. Sub-rule (5) provides-that an ap plication in Form MM1 for grant of a mini ng lease shall be addressed to the State Government. Sub Rule (2) provides that the application referred to in sub-rule (1) (above) shall be submitted in quadruplicate to the District Officer and said Officer shall endorse the receipt of the application and return one copy immediately to the person presenting the application. Under sub-rule (3) the application shall be entered in a register. 8. The provisions contained in Rule 6 of the Concession Rules are important. It lays down that every application shall be accompanied by- (a) a fee of one thousand rupees. (b) a deposit of two thousand rupees for meeting preliminary expenses, other than those specified in Rule 17, and (c) Four copies of the cadastral survey map on which the area applied for is clearly marked and in case such area is not covered by cadastral survey, four copies of topographical survey map on a scale of at lease 4" = 1 mile, on which the area applied for is accurately marked. (d) A certificate, issued by the District Officer or by such officer as may be authorised by the District Officer in this behalf, showing that no mining dues are outstanding against the applicant. In view of what has been stated above the law requires that the airea for which applications may be invited, has to be notified under Rule 72. There is no restric tion or qualification concerning the calling of the applications and publication of the said notice/notification. 9. It is common knowledge that it is after the applications have been scrutinised that the question of granting, refusing or amending the application and then leasing out the area claimed by an applicant will come up for consideration. Consequently, Rule 10 is to be attracted the moment the Mining Officer makes up his mind to settle lease with an applicant. Rule 10 reads as under- "rule 10.-Maximum area for which a min ing lease may be granted. No person shall acquire in respect of any minor mineral, one or more mining leases covering a total area of more than thirty acres. Provided that if the State Government is of opinion that in the interest of mineral develop ment it is necessary so to do it may, for reasons to be recorded, permit any person to acquire one or more mining lease covering an area in excess of the aforesaid maximum of thirty acres. Explanation.-For the purpose of these Rules, a person acquiring by or in the name of another person a mining lease which is intended for himself shall be deemed to be acquiring it himself. " Not only this, the provisions contained in Rule 8 leave the discretion to the Mining Officer to deal with application of an ap plicant on merits before making up his mind to settle an area by the lease. It provides that the Officer/authority may subject to the provisions of these rules make enquiry as it may consider necessary for dis posal of application for grant of mining lease. Sub-clauses (a) and (b) of clause (1) of Rule 8 provides as under- "rule 8-Disposal of application.- (1) The State Government or the authority authorised by it in this behalf may, subject to the provisions of these rules and after making such further enquiry as it may consider necessary: (a) In the case of application for grant of a mining lease refuse or grant the mining lease for the whole or part of the area applied for and for such period as it may consider proper; (b) In the case of application for renewal of a mining lease, refuse or renew the mining lease for the whole or part of the area applied for and for such period, not exceeding the period of the original lease, as it may consider proper; provided that where an application for grant or renewal of mining lease is refused for the area is reduced reasons therefor shall be recorded and communicated to the applicant". 10. The provisions as noted in sub-clause (1) are abundantly clear. It leaves no doubt that absolute discretion is available to the Mining Officer/authority to determine on the spot how applications received in pursuance of a notice have to be dealt with by him. He may refuse the mining lease or may grant it for the whole or part of the area applied for. In view of this provision the person who makes an application has ob viously to apply for a particular area for which he wants to obtain the mining lease. It has already been noted above that under Rule 6 an applicant has to pay the required fees and also submit map etc. indicating his minds to have the lease deed of a particular area. It goes without saying that only after the applications are invited by the Mining Officer/authority the citizens may make ap plication for grant of mining lease for areas as they may think necessary. There is no need or justification to curtail the said right of the Mining Officer or of an applicant who may in a given case always claim to have a lease-deed for area more than 30 acres and also simultaneously claim exemption from the State Government on the ground men tioned in those provisions noted above as delineated in Rule 10 of the Concession Rules. 11. In view of what has been stated above there is absolutely no force in the arguments of Shri S. P. Singh that by not specifying the "thirty acres area" against the lots or blocks allegedly prepared at the time of notice, there is inherent illegality in the notice. The purpose of notice is fully secur ed by the type of notice which has been pub lished in the instant case vide Annexure-1. 12. Coming now to the question as to what will happen to the preferential rights as envisaged by twentieth amendment which have substantially altered the existing Rules 9 and 9-A of the Concession Rules, it may be mentioned here that such a question will arise only when the duplications are being taken up for consideration. The sub sequent action of dealing with the applica tions cannot be pre- supposed or prejudged on any suppositions or hypothesis. When ever the authority or the officer will find it necessary to extend the advantage as is en visaged by Rules 9 and 9-A it will so act under Rule 10 of the Concession Rules. But this is a subsequent act which he will be called upon to go into only after the applications have been made. The arguments of Shri Singh in trying to by-pass Rule 10/rule 6 while challenging the notice under Rule 72, cannot but be rejected with appreciation. 13. Coming now to the two decisions, it may be mentioned here that in Kamlesh Nishad the facts were that the earlier notification ca Iling for application was done away with by the District Magistrate and the subsequent notification was put in. This was done because thirty days notice was not provided in the first notice. However in the second notice area and Khasra Nos. were not mentioned. It may be mentioned here that the Division Bench itself has gone into the issue in para 19 of the decision. It has been observed- "paras 19.-The case of the respondents as set up in paragraph 18 and other paragraphs of the counter- affidavit, is that Rule 10 will apply at the time of grant of mining lease aad that this provision is not applicable at the time of inviting applications for mining lease. In para 36 of the counter-affidavit, the stand taken by the respon dents is rather strange, inasmuch as, it is averred by them that at the time of filing of the application, it is the duty of the applicant to identify the area for which he is interested to apply. " 14. Having made the aforesaid com ments about the practical stand of the respondents the court held in continuation: "how can an applicant identify the area on his own? From the notice dated 17-10-1994 it is amply clear that even block is not mentioned there in every share, but the areas far in excess of the limit of 30 acres, have been mentioned. How can an applicant choose the area out of the area men tioned in the impugned notice? We want to under stand the mechanism being followed by the respondents at the stage of scrutiny of the applica tions made by protective lessees pursuant to the notice which simply, specified much larger areas even without specifying blocks everywhere and no satisfactory explanation has been given at the time of hearing as to who can a prospective lessee apply in respect of the area for which he intended to take lease. " The aforesaid conclusion of the Division Bench in the decision of Kamlesh Nishad is further reinforced by referring to pare 21 of the judgment which reads: "it may be said that the details of Khasra number and the area thereof may be too cumber-sotr". to the mentioned in the notice and, therefore, it is convenient to specify the blocks only and further details may be gathered either in the office of the District Officer or at a particular place. No case has been set up by the respondents that the details of Khasra number and areas thereof were omitted from being mentioned in the notice be cause they could not be conveniently reproduced in the noticed. Rather, the case set up by the respondents is that no area need be specified as per Rule 10. The case of the respondents is that "it is the duty of the applicant to identify the area for which he is interested to apply. "it may be the duty of the applicant to identify the area but the ques tion is whether the respondents have taken any steps to enable a prospective lessee to identify the area. Except the details furnished in the impugned notice, nothing else has been brought to out notice by the respondents to enable the applicants to identify the area. " It leaves no doubt in the mind of this Court that the mentions about description of the area in the notice which was chal lenged in Kamlesh Nishad's case (supra) were totally insufficient to indicate to an applicant the details for which he has to make an application for grant of mining lease. On this ground the aforesaid case of Kamlesh Nishad is not attracted to the facts of the present case inasmuch as in the in stant case the village Lot No. , the area and even the Zone have been mentioned in the notice which is more than sufficient infor mation/intimation to inform the applicant who wants to apply for grant of mining lease. 15. Coming to the second case it may be noted here that relying upon Kamlesh Nishad Judgment, the Division Bench held that the notice in the said case was also not enough to give a proper notice to the ap plicant therein as to for what area he was going to apply for mining lease. It has been held by the Division Bench in the case of Achchey La/ (supra) that even relaxation is permissible under Rule 10. It may be relevant to quote here few lines from the said paragraph- "the power under the provisions to Rule 10 of Rules, 1963 is to be exercised in particular cases where the State Government is of the opinion that in the interests of mineral development it is neces sary to do so. The relaxation under Rule 68 can be granted to a particular person where the State Government is of the opinion that in the interest of mineral development it is necessary so to do. The relaxation under Rule 68 has to be given at the time of granting lease and not at the time of inviting applications. " 16. The Division Bench again went on to uphold the objective behind Rule 9-A and it has been observed: "such object can be achieved only when lots as contemplated by Rule 10 are made and pub lished by the respondent. If area as big as 300 acres in district Mau is notified, then the people entitled to preferential treatment under Rule 9-A would be by implication excluded from making applica tions inasmuch as they will not be able to deposit security equal to 25% of annual deed rent or annual lease amount of the leased area as re quired by amended Rule 13 and that would be subversive to the scheme and policy of the State Government. It need not be stressed that as provided by sub-rule (2) of Rule 3, no mining lease or mining permit shall be granted otherwise than in accordance with the provisions of Rule 1963. Thus, the impugned notice so far as it re lates to lot No. 4 notifying 300 acres, is not accord ing to the Rules, 1963 and as such has to be set aside. " It was emphasised in the aforesaid paragraph that since one of the plots measured 300 acres all-told, it contravend the rules and, therefore, the aforesaid notification under challenge in that case was set aside. It is admitted to all the parties that Rule 72 was neither placed before the Bench nor has been consider in the judgment. Fur ther, on the factual basis as to the contents of the notice concerned under these two writ petitions, and the notice as was under challenge in Achchey Lai's case are different and therefore, the said decision also does not help Shri Singh. 17. Let is be emphasised again that in the instant two petitions, the notices have been issued in accordance with the provisions of Rule 72, in response to which any one can apply under Rule 6 specifying the measurements and details of the area from out of the notified area that he wants on lease, the applications then shall have to be scrutinised and finalised under Rule 10 adhering to Rule 9 or 9-A whenever ap plicable and thereafter the lease-deeds shall have to be executed in accordance with the relevant provisions of the Concession Rules. There is thus no error in the notice at all. The three arguments of Sri S. P. Singh have to be rejected as being without any factual basis. 18. No other point has been argued. In view of the aforesaid discussions, the writ petitions are dismissed summarily. Petition dismissed. .