- (1.) BY the Court.Heard Sri Dev Brat Mukherjee, learned counsel for the petitioner and Sri Vishnu Pratap,learned Standing Counsel.
(2.) COUNTER Affidavit and Rejoinder-Affidavit have been exchanged between the parties. Supplementary Affidavit and Supplementary COUNTER-Affidavit has also been filed. Brief facts of the case is that District Officer issued notice dated 22.4.2001 was issued under Rule 72 of U.P. Minor Mineral Concession Rule 1963 inviting applications for grant of mining lease under Chapter(2) of the Rules with regard to the several plots situate in different villages. One of the plots which was included in the notice was plot No. 1251. In plot No. 1251 there were two parts, first part(Khand) 2 to 6 of five acres each and second part-Khand 7 of 7.5 acres. Petitioner made an application for grant of lease of plot No. 1251 of 30 acres. The applications remained pending and a recommendation was also made in favour of the petitioner for grant of 20 acres on lease as indicated in the map. The notice dated 22.4.2001 mentioned that application shall be received within seven days from 21.5.2001. An order dated 14.2.2007 was communicated to the petitioner informing that his application for grant of mining lease has been rejected. The petitioner has filed the present writ petition praying for following reliefs: (I) To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 14.2.2007 passed by(respondent No. 3) and the order of Distt. Magistrate Dt.3.2.2007, if any, after summoning the record. (ii) To issue a writ, order, or direction in the nature of mandamus directing the respondent to grant the Mining Lease of Plot No. 1251 of Vill. Kohdar, the. Meja, District Allahabad, measuring area about 20 acres to petitioner, as per recommendation made by the Respondent No. 3. (iii) To issue any other writ, Order or direction and this Hon'ble Court may deem fit and proper under the circumstances of the case. (iv) To award costs of the Writ petition to the petitioner against the respondents. Sri D.B. Mukherjee, learned counsel for the petitioner in support of the writ petition raised the following submissions: (1) There were more than one application in response to the notice dated 22.4.2001, hence the order of District Officer that there was single application of the petitioner, is incorrect. He submits that apart from the application of the petitioner, one application was submitted by Manoj Kumar Singh with regard to five acres of area of plot No. 1251. There was another application of Smt.Firoj Begum of plot No. 1251 and another application of Sri Ashfaq for same plot No. 1251. He submits that there being thus four applications with regard to plot No. 1251, the reasons given for rejection of the application is incorrect. (2) The District Officer in the impugned Order has taken an incorrect view that in response to the notice dated 22.4.2001 only one application was received and since no notice was issued for extending the period for receiving the applications by one week as required by Rule 72(2) the application is liable to be rejected. (3) The respondent cannot be allowed to take the benefit in not extending the period of one week for receiving the application and no benefit can be taken by the District Officer of the aforesaid fact. Reliance has been placed on the judgments of Apex Court in Kusheshwar Prasad Singh v. State of Bihar and others, 2007(11) SCC 447; Union of India and others v. Major General Madan Lal Yadav, 1996(4) SCC 127 and Mrutunjay Pani and anotherv. Narmada Bala Sasmal and another, AIR 1961 SC 1353.
(3.) SRI Vishnu Pratap, learned counsel for the respondent refuting the submissions of learned counsel for the petitioner contended that in response to the notice dated 22.4.2001 the application submitted by the petitioner only mention the area of 30 acres and no Khand was mentioned in the application. He submits that according to Clause(6) of notice, applicant has to apply only against one Khand. He submits that application of Manoj Kumar Singh which was against the same notice was for an area of of 5 acres 1251 and even if it is accepted the said application was for the same area the situation does not improve for the petitioner. The application of Smt.Firoj Begum and Ashfaq were against the different notice and were not in response to the notice dated 22.4.2001,hence they were not relevant. He submits that under Rule 72 of the Rules when there are less than three applications, the District Officer is obliged to issue a fresh notice in case he decide not to extend the period of seven days. He submits that the requirement of Rule 72(2) of the Rules for extension of further period of one week is "directory", Where as the requirement of issuing a fresh notice is "mandatory". He submits that District Officer did not commit any error in rejecting the application. The reliance has been placed by learned Standing Counsel on the judgment Smt. Bachahan Devi and another v. Nagar Nigam, Gorakhpur and another, 2008(1) Supreme 756. We have heard learned counsel for the parties and perused the record.;