UDAI NATH Vs. STATE OF U P

JUDGEMENT

(1.) THE questions that arise for consideration in these two petitions (Civil misc. Writ Petition No. 49158 of 2007 being leading petition) are whether the amendment made in Rule 10 of U. P. Minor Minerals (Concession) Rules, 1963 (in brief the Rules)in 2004 authorising the Collector to grant mining lease for some of the minerals, namely, sand, morrum, bajri, boulders or any of these in mixed state, without any limit of area, is beyond the rule making powers of the State and is ultra vires; whether such grant of power without any guideline is arbitrary and violative of Article 14 of the Constitution; whether lifting of restrictions for grant of mining leases for a maximum area of 30 acres is likely to create monopoly which is against the constitution and public policy; whether preferential right of applicants applying on the same day on financial resources in Rule 9 (2) (b) of the Rules is bad being vague; whether the requirement of filing, 'no Objection Certificate' from the Senior Superintendent of Police where, the applicants reside introduced in the Rule 6 (1) (g) (iv) by Twenty Ninth (Amendment)Rules, 2007 is mandatory or directory, if it is mandatory whether Collector could have entertained the application of respondent and in any case whether the direction of the state Government to ensure its compliance by respondent before grant of lease was valid and in accordance with Rules?

(2.) FACTS in brief are that the petitioner who belongs to socially and educationally backward community of Nishad, applied for grant of mining lease on 5-2-2007 in Form mm-1 for excavating sand from plot No. 394 of village Mokalpur, Khand-1 for an area of 30 acres in pursuance of notice dated 4-1-2007 issued by the Collector for settling various vacant mining leases in the district varanasi. The time fixed for making application was between 5-2-2007 to 13-2-2007. Apart from the petitioner three other persons, namely, the petitioner in civil misc. writ petition No. 55442 of 2007, Kalpnath singh the respondent No. 4 and one Brijesh kumar Singh applied on the same day i. e. , on 5-2-2007 in Form MM-1. From the comparative chart prepared by District Mining officer it is clear that respondent was placed at serial No. 1 and petitioner at serial No. 2. In the chart the financial status of petitioner no. 1 was shown as Rs. 25 lakhs. He was doing mining since 1990. The financial status of the petitioner was shown as Rs. 10 lakhs and he was to carry on excavation in partnership of a lessee. He had filed a certificate in Form MM-14 that he traditionally carried on the profession of excavating sand, morrum etc. He claims that even his father and forefather carried the profession.

(3.) RULE 6 (1) of the Rules was amended by twenty Ninth (Amendment) Rule, 2007 and published in the gazette on 15-2-2007. It added sub-rule (g) to Rule 6 (1), with four sub-clauses. Sub-clause (iv) provided that the applicant should file No Objection Certificate from the Senior Superintendent of police. A notice dated 2-4-2007 was issued, in furtherance of the amended rule to all the applicants, by the Collector Varanasi, to file the aforesaid certificate within time mentioned in the notice. The petitioner filed the certificate within time. But the respondent failed to do so. He filed it on 28-9-2007, even after the date when the State Government approved the grant of lease in his favour. The petitioner, also, filed relevant documents including certificate in Form MM-14 claiming preference available to socially and educationally backward classes along with the application. The lease rent for the first year for the area in dispute was fixed at Rs. 7,08,400/- with 10% enhancement in future years. Since the lease was for more than rs. 2. 00 lakhs, therefore, the recommendation was made by the Collector, Varanasi on 13-8-2007 to the State Government for approval and acceptance of mining lease in favour of respondent.