- (1.) THE present Writ Petition has been filed under Article 226 of the Constitution of India, inter-alia, praying for quashing the Order dated 22.5.2008 passed by the District Magistrate, Etawah (respondent no.2). It appears that mining lease was granted in favour of the petitioner by the Lease-Deed dated 29.8.2006 for a period of 3 years.
(2.) A complaint was made by the respondent no.5 that the petitioner had entered into a partnership with the respondent no.5 and his wife Smt. Deepti Chaturvedi for operating the aforesaid mining lease. Thereupon, a Notice dated 20.3.2008 was issued to the petitioner requiring the petitioner to show-cause as to why the mining lease in his favour be not cancelled on account of violation of Rule 19 of the U.P. Minor Mineral (Concession) Rules, 1963 (in short "The 1963 Rules"). The petitioner submitted his Reply dated 26.3.2008. Thereafter, the petitioner approached this Court by filing a Writ Petition being Civil Misc. Writ Petition No.18725 of 2008. This Court by the Order dated 8.5.2008 disposed of the said Writ Petition with direction to the District Magistrate, Etawah to dispose of the Objections of the petitioner, and pass appropriate orders within the period mentioned in the said Order dated 8.5.2008. The petitioner, thereafter, filed further Objections dated 13.5.2008 and 21.5.2008. The respondent no.5 also submitted its version by Application dated 14.5.2008. The District Magistrate, Etawah (respondent no.2) considered the version of both the sides and passed the Order dated 22.5.2008. By the said Order dated 22.5.2008, the District Magistrate, Etawah (respondent no.2) cancelled the mining lease in favour of the petitioner in view of the provisions of sub-rule (1) of Rule 60 of the 1963 Rules on account of violation of Rule 19 of the 1963 Rules. The District Magistrate, Etawah (respondent no.2) further black-listed the petitioner for a period of 5 years in exercise of powers under sub-rule (2) of Rule 60 of the 1963 Rules. The petitioner has, thereupon, filed the present Writ Petition seeking the reliefs, as mentioned above. Affidavits have been exchanged between the parties. We have heard S/Shri Gulab Chandra and Ankit Saran, learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent nos. 1 to 4, and perused the record. From a perusal of the respective version of the petitioner and that of the respondent no.5, it is evident that the controversy involved in the present Writ Petition is factual in nature, namely, as to whether the petitioner entered into partnership with the respondent no.5 and his wife for operating the aforesaid mining lease. Such factual controversy cannot appropriately be decided in Writ Petition under Article 226 of the Constitution of India. Rule 77 of the 1963 Rules provides that an Appeal against an order passed under the 1963 Rules by the District Officer (i.e. Collector) shall lie to the Divisional Commissioner within a period of 60 days from the date of communication of such order to the party aggrieved. The petitioner has thus got an alternative remedy by filing Appeal before the Divisional Commissioner against the said Order dated 22.5.2008 passed by the District Magistrate, Etawah (respondent no.2).
(3.) IN view of the nature of controversy involved in the present Writ Petition, we are of the opinion that it will be appropriate that the petitioner be relegated to the alternative remedy of filing Appeal under Rule 77 of the 1963 Rules, which is available to the petitioner. We accordingly dismiss the Writ Petition on the ground that the petitioner has an alternative remedy by filing an Appeal before the Divisional Commissioner against the Order dated 22.5.2008 passed by the District Magistrate, Etawah (respondent no.2). As the petitioner has pursued the remedy before this Court by filing the Writ Petition, we observe that in case the petitioner files an Appeal before the Divisional Commissioner concerned within two months from today, the Divisional Commissioner? will entertain the same and decide the same on merits without raising any objection as to the limitation for filing such Appeal.;