- (1.) VINEET Saran, J. Heard Sri S. P. Singh learned Counsel for the petitioner as well as learned Standing Counsel appearing for respondents No. 1, 2 and 3 and Sri Prakash Padia, learned Counsel appearing for the contesting respondent No. 4. Pleadings between the contesting parties have been exchanged and with the consent of the learned Counsel for the parties, this writ petition is being disposed of at this stage.
(2.) THE petitioner claims that he had filed an application on 13- 2-2001 for grant of mining lease of Plots No. 485 and 486. However, after considering the applications of all the applicants, the lease of plot No. 485 was granted on 19-6-2001 in favour of respondent No. 4-Ram Jaishree. THE said order granting mining lease in favour of respondent No. 4 was challenged in appeal by the petitioner and one other applicant Bharat Lal. THE appeal of the petitioner was dismissed by the Commissioner vide order dated 28-5-2002. However, by the same order, the appeal filed by the other applicant Bharat Lal was allowed. Challenging the order passed in appeal of the said Bharat Lal, the respondent No. 4-Ram Jaishree filed a revision under Rule 78 of the U. P. Minor Minerals (Concession) Rules, 1963, which was dismissed by the State Government on 18-9-2002. Challenging the said order, the respondent No. 4, Ram Jaishree filed Writ Petition No. 41124 of 2002, which was allowed by this Court on 31-3-2003 and the claim of Bharat Lal for renewal of lease for mining of plot No. 485 was not accepted and the lease granted on 19-6-2001 in favour of respondent No. 4 was found to be legal and justified. THE said Bharat Lal thereafter challenged the judgment and order dated 31-3-2003 before the Apex Court in a Petition for Special Leave to Appeal (Civil) No. 10574 of 2003, which was dismissed on 19-6-2003. Thus, the matter with regard to grant of mining lease of Plot No. 485 became final. Now the question remains with regard to grant of mining lease of Plot No. 486 regarding which the petitioner claims to have applied on 13-2-2001 alongwith the grant of mining lease of Plot No. 485. The petitioner has thus now challenged the order dated 28-5-2002 passed by the Commissioner in appeal filed by him and also the order dated 19-6-2001 granting lease for mining in favour of the respondent No. 4. It is noteworthy that this writ petition has been filed on 13-8-2003, which is more than a year after the passing of the impugned order, and even after the order dated 28-5-2002, with regard to the appeal of Bharat Lal had been set aside in writ petition on 31-3-2003 and affirmed by the Supreme Court on 19-6-2003. The petitioner claims that he was the first applicant for grant of lease of both the plots. However, on being asked, the petitioner could not place the advertisement in response to which he had applied for grant of mining lease of Plots No. 485 and 486. From the record it appears that the first advertisement for grant of lease for plot No. 485 was issued on 1-3-2001. It is not understood as to how the petitioner had made an application for grant of mining lease on 13-2-2001 and claims to be the first applicant in response to the advertisement dated 1-3-2001. The application can be made only after the notification is issued and not in anticipation of the issuance of such notification. As such, his claim of being the first applicant for grant of lease and the claim of preferential right under Rule 9 of the Rules of 1963 does not have any basis.
(3.) THE only justification for having filed an application for plots No. 485 and 486 on 13-2-2001 has been given in paragraph 10 of the rejoinder affidavit. In the said paragraph, it has been stated that a notification was issued by the District Magistrate on 5-2-2001. No mention of any such notification has been made in the writ petition and only reference of the same is in the counter-affidavit of respondent No. 4. A perusal of the said notification also does not indicate that application for grant of mining lease of Plot No. 486 had been invited by the said notification. From the record, learned Counsel for the petitioner could not show any notification inviting applications for grant of mining lease of plot No. 486. Neither the notification dated 5-2-2001 nor the one dated 1-3-2001 (which have both not been filed by the petitioner but by respondent No. 4 in his counter-affidavit as Annexures C. A. 2 and C. A. 1 respectively) relate to grant of lease of plot No. 486. For the first time it was in the order of the Divisional Commissioner dated 28-5-2002 that, while dismissing the appeal of the petitioner, it was observed that in case if the petitioner so desires then he may file an application for grant of mining lease for plot No. 486. Such observation in the order of the Divisional Commissioner passed in the appeal (even when the issue of grant of mining lease of plot No. 486 was not involved in such appeal) cannot be enforceable in law. The same can only be said to be advisory in nature and would not create any right in favour of the petitioner. Accordingly, such prayer for a direction to grant mining lease of plot No. 486 (although made orally and not in the writ petition) also cannot be granted. It is only when any notification is issued for grant of mining lease of plot No. 486 that the petitioner shall be entitled to apply for the same and if found eligible, his application may be considered by the competent authority, in accordance with law, alongwith the applications made by the other persons.;