V.N. Khare, J. - (1.) The petitioner, who is a prospective participant at the proposed auction for settlement of right to excavate sand in the district of Gorakhpur, challenges the notice given by the District Magistrate, Gorakhpur for holding auction on 21st September, 1991. It is prayed that a writ in the nature of certiorari be issued, quashing the impugned notice and also for issue of a writ of mandamus directing the respondents not to lease out the right to excavate sand in pursuance of auction notice published on 22nd August, 1991.
(2.) The facts necessary for the decision of the writ petition are that the State of U.P. in exercise of its power conferred on it by Section 15 of the Mines and Minerals (Regulation & Development) Act, 1957 framed the U.P. Minor Minerals (Concession) Rules 1963. For the purpose of this case, it is not necessary to advert all the rules except rules contained in Chapter IV of the Rules, which deal with the disposal of right to excavate sand by auction system. Rule 23 provides that the State Government may by general or special order declare the area or areas which may be leased out by auction or tender or by auction-cum-tender. It is not disputed that in the present case proposed lease for excavation of sand has to be settled by auction system. The other rule relied upon by the counsel for the petitioner is rule 27, which is extracted below:- 27. Procedure for grant of lease by auction:-In respect of an area or areas declared under sub-rule (1) of Rule 23 as area for grant of lease by auction the following shall be the procedure: (a) The District Officer or the Committee authorised by the State Government under Rule 7 hereinafter referred to as the Commissioner shall at least thirty days before the date of auction, give notice in the manner given below indicating the date, time and place of the auction: Provided that where for any reason the auction is not completed a fresh auction may be held after giving a shorter notice of at least seven days; (i) Copies of a notice shall be put up on the notice Board at the office of the District Officer and at some convenient place close to the area; (ii) a copy of the notice shall be sent to the Gaon Sabha or any other local authority in whose jurisdiction the area is situate; (iii) the notice for general information shall be given by beat of drum in the locality where the area is situate; and (iv) in any other manner as may be directed by the State Government. (b) The District Officer may appoint any officer subordinate to him as the Presiding Officer for the auction. (c) The details of the area or areas and the terms and conditions of lease shall be read out to the intending bidders at the time of auction. (d) ....
(3.) On the strength of Rule 27, it was argued that the proposed auction for settlement of right to excavate the sand is not conformity with the Rule 27 of the Rules, therefore, no such auction can take place on 21st September, 1991. In nutshell the argument is that there is neither thirty days notice as required to be given before the date of auction nor the notice indicate the terms and conditions of the lease on which the right to excavate sand is to be settled, therefore, proposed auction is illegal. Under Rule 27-a, the District Officer is required to give at least thirty days notice before the date of auction in the manner enumerated in Clause-a of the Rule 27 of the Rules. Admittedly notice was published in daily Aaj in its issue on 22nd August, 1991 that auction is to be held on 21st September, 1991 and prospective bidders can obtain the details of terms and conditions of auction from officer incharge (Mines). No doubt there is no thirty days notice before the proposed date of auction, as the period of notice falls short by three days. The question arises for consideration is, can it be said that proposed auction is illegal not being in conformity with Rule 27 providing for thirty days notice before the date of auction. It is not disputed that minor mineral vests in the State and State being owner of minerals expects adequate price for parting with its right to excavate the minor minerals. Judged in the background the primary intention behind the giving of thirty days notice before the date of auction is to attract more bidders at the auction and make the auction more comparative so that State may get best price for its minerals and further no prejudice is caused to it due to lack of notice to the people. The breach of rule does not render the proposed auction void in all cases in the absence of prejudice to the State. See N.C. Kapoor v. D.F.O., 1972 AWR 265 while holding that the proposed auction is not void on account of the fact that period of notice falls short by days or week in absence of prejudice caused to the State, we may not be taken to have held that no notice is required to be given of such auction. Large number of citizens are engaged in the trade of minor minerals and State is expected to give fair opportunity to its citizens to participate in such auction. In other words State must ensure that auction is fair. In the present case petitioner has notice of proposed auction and he cannot be permitted to challenge the proposed auction. We are, therefore, of opinion that the proposed auction cannot be said to be illegal on the ground that no thirty days clear notice has been given prior to the date of holding of auction for settlement of right to excavate sand.;