- (1.) PALOK Basu, J. Raghunath petitioner claims through this writ petition under Article 226 of the Constitution of India that since he is entitled to the right to excavate the area sanctioned -under the order of the District Magistrate, Jalaun dated 1-12-1995, a mandamus should issue commanding the respondents to execute the lease deed and issue Form MM 11 and restrain them from interfering with petitioner's mining activities in the demised area.
(2.) WHEN the writ petition was filed on 16-4-1996 a counter affidavit was called which has been filed to which a rejoinder affidavit has also been filed. Looking at the urgency involved and as jointly requested by the parties. the writ petition is being finally disposed of at the admission stage. Shri B. N. Agrawal, learned Counsel for the petitioner and Shri K. S. Kushwaha, Standing Counsel on behalf of the opposite parties have been heard at length and the entire material has been perused. The short facts are that there was an advertisement in the local Newspaper dated 27-9-1995 declaring 31 areas available for grant of lease under Chapter II of the U. P. Minor Minerals (Concession) Rules, 1963, for short hereinafter referred to as the Rules, for excavating sand/moram. The petitioner is president of village Sikri Vyas, Tfehsil Orai, District Jalaun and consequently he made an application for grant of mining lease with regard to sub-division No. 4 measuring 50 acres in Plot No. 1191-M of village Sikri Vyas Teshil Orai, District Jalaun. Petitioner pleads that he belongs to social y and economically backward class. He also claims preferential rights under Rule 9-A of the Rules. His case is that the District Magistrate accepted his application and issued an order on 1-12-1995 saying that lease in favour of the petitioner has been sanctioned and therefore the petitioner should deposit the re quired royalty and complete necessary formalities. The period of lease was to be for three years on payment of annual royalty of Rs. 1,85,500. On 8-12-1995 the petitioner deposited Rs. 46,375 as was required under the Rules and further he deposited a sum of Rs. 1,250 for getting demarcation done. The grievance of the petitioner is that in spite of all these formalities having been completed, so much so that the petitioner also supplied stamps etc. for execution of the lease deed, the District Magistrate and Mines Officer, Jaulan sat tight over the matter and did not proceed to get the lease deed executed and further, possession of the land was also not given to the petitioner. This forced the petitioner to go on making repre sentation after representation before the District Magistrate the last one being dated 25-1-1996 (Annexure-4) and they also having failed to move either the District Magistrate or the Mines Officer, the petitioner was left with no other alternative remedy except to approach this Court. In the OK inter affidavit the case pleaded by the respondents two-fold. First, there is rt stay order passed by the Lucknow Bench of this Court staying operation of the provisions contained in" Rule 9-A which was added by the 21st Amendment Rules, 1994 and promulgated w. e. f. U-2-1%'5. A copy of the order of the Lucknow Bench has been appended as Annexure-1 to the rejoinder affidavit filed by the petitioner though its details are available even in the counter affidavit filed by the respondents. In this connection the State Government has issued a radiogram direct ing District Magistrates not to execute lease deeds because of the directions con tained in the interim order of this Court passed by the Lucknow Bench on j 0-1-1996. Second, the petitioner is not entitled to the preferential rights even on facts because his caste is not covered by the class of persons mentioned in the "explanation" added to Rule 9-A. On these two grounds the District Magistrate is desisting from execut ing the lease deed in favour of the petitioner. It is admitted that if these two grounds are not available to the District Magistrate he is also to follow the rules and get the lease deed executed and further hand over possession of the plots to the petitioner so that he can continue with the excavation.
(3.) THE short question to be decided in the instant case, therefore, is whether the petitioner's allegations have to be interpreted as if he gets the benefit of the "ex planation" added to Rule 9-A or that on the facts of the present case the Explanation to Rule 9-A is not attracted. The only pleading in this connection is to be found in paragraph-3 of the writ petition. For ready reference the said paragraph is quoted hereinafter: "para-3. That the petitioner belongs to the scheduled caste which is one of the socially and economically backward class categories specified under Rule 9-A of the U. P. Minor and Mineral (Concession) Rules, 1963. ";