- (1.) U. P. Singh, J. Petitioner No. 1 in the first case is the District Samiti, the parent body being U. P. Bhudan Samiti, constituted under Bhudan Yagya Adhiniyam, 1952 and is a body corporate under the aforesaid Act and the petitioner No. 2 is the office bearer of the said Samiti. The said Samiti owned a private forest measuring about 745 bighas and 3 biswas. The said land is covered with thick Foliage and plants. The forest being a hilly tract, sand stones and other gravel are found as deposits in its sub soil. In 1987 the mining lease for an area of about 30 acres was granted from the, above said land for a period of 10 years, in favour of a private company. For the purpose of excavation the said company cut the trees and disturbed the ecological balance of the area and the petitioners filed the Writ Petition No. 7814 of 1988 (U. P. Bhudan Yagya Samiti v. The District Magistrate, Allahabad and others ). In the said writ petition this Court vide its order dated 26-4-88 restrained the said company from cutting any trees from the said area. The said writ petition is still pending for hearing before this Court.
(2.) ON 27th August, 1994, the Uttar Pradesh Minor Mineral (Concessions) Rules, 1963 (hereinafter called 'the Rules') were amended by the U. P. Minor Minerals (Concession) (Twentieth Amendment) Rules, 1994 (hereinafter referred to as 'the amended Rules' ). The newly inserted Rule 72 read as under : "availability of area for regrant to be notified.- (1) If any area, which was held under a mining lease or reserved under Section 15-A of the Act, becomes, available for regrant, the District Officer shall notify the availability of the area through a notice inviting application for grant of mineral concessions specifying a date, which shall not be earlier than thirty days from the date of notice and giving description of such area and a copy of such notice shall be displayed on the notice board of his office and shall also be sent to the Tehsildar of such area and the Director. (2) An application for the grant of a mining permit for such area which is already held under a lease or notified under sub-rule (1) of Rule 23 or reserved under Section 17-A of the Act and whose availability has not been notified under sub rule (1), shall be premature and shall not be considered and the application fee thereon, if paid shall be refunded. " It appears from the record of the case that on 21-2-95 respondent No. 1, District Magistrate, Allahabad, granted a lease of 5 acres area in favour of the respondent No. 3 and the same was confirmed vide letter dated 23-2-95 (Annexure-1 to the writ petition ). In pursuance of the said order the respondent No. 3 started working in the said area and the petitioners filed the first writ petition before this Court mainly on the ground that the grant of mining lease in favour of respondent No. 3 was in contravention of Rule 72 as the District Officer had not notified the availability of Area through a notice inviting applications for grant of mineral concessions as man-datorily required under the said rules and the impugned order dated 23-2-95 had been passed without following the procedure laid down under the said rules and thus was totally arbitrary and illegal. This Court vide its order dated 18-4-95 granted the interim relief as under: "until further order, the lease, if any, executed in favour of respondent No. 3 by the impugned order dated 23-2-95 will not be operated by the said respondents, provided availability of area contemplated under Rule 72 inserted by Twentieth Amendment Rules, 1994 in the U. P. Minor Minerals (Concession) Rules, 1963 is not declared. "
(3.) IN pursuance of this order the respondent No. 3 was restrained from excava tion and, thus, the respondent No. 3 filed the another Writ Petition No. 15749 of 1995. The respondents filed the counter affidavit and the case of the State as well as the respondent No. 3 is that the area had become available much prior to the date of the commencement of the said amended rules and the applications had been entertained in pursuance of the Government Order dated 23-11-93, and hence as the applications had been made and processed, though not finalised prior to the com mencement of the amended rules in force, the provisions of Rule 72 were not re quired to be followed and according to the respondents, there is no restriction under the Twentieth Amended Rules that any process started for grant of lease before 27th August, 1994, the date of the enforcement of the amended rules, shall automatically become obsolete and redundant. According to the Government Order dated 23-11-93 for the excavation of the land stone (building stones and gray-nite), the right to excavate would be created by granting the mining lease and the procedure of auction as provided under Rule 23 was withdrawn in exercise of the power enshrined in Rule 24 o)' the said rules. Learned Counsel for the petitioner submits that, if any, application had been filed prior to 27-8-1994, it could not have been considered in view of the mandatory provisions of sub-rule (2) of Rule 72 which provides that such application shall be premature and shall not be considered and the application fee thereon, if paid, shall be refunded. The further contention made on behalf of the learned Counsel for the petitioner is that once the amended rules came into force the respondents No. 1 and 2 were bound to adopt the procedure laid down in the said amended rules and the availability of area for the regrant had to be notified under sub-rule (1) of Rule 72, which admittedly has not been done in the instant case and thus, the order dated 23-2-1995 (Annexure-1 to the writ petition) is illegal and invalid and does not confer any right of mining in favour of respondent No. 3. Respondents have not stated anywhere that in pursuance of the said order dated 23-2-1995, the lease deed has been registered and executed in favour of respondent No. 3. As per the rules, the lease will come into operation only after the lease has been executed in favour of the grantee. The learned Counsel for the respondent No. 3 has submitted that as the area h,id become available for regrant as early as in 1993 and the application had been made and processed prior to 27-8-1994 the provisions of the amended rule would not apply as the lease has been granted in favour of respondent No. 3 in pursuance of the Government Order dated 23-11-1993.;