- (1.) THE present writ petition has been filed for quashing the notice dated 16-2-2006 issued by the District Magistrate, Hamirpur (Annexure 1 to the writ petition ). Further a writ in the nature of mandamus commanding the District Magistrate, Hamirpur to issue fresh notice in accordance with 1963 Rules.
(2.) THE facts arising out of the present writ petition are that a notice dated 17th September, 2006 issued under Rule 72 of the U. P. Minor Minerals (Concession) Rules, 1963 is liable to be set aside as this is in contravention of Rule 24 of the Rules. THE aforesaid notice has never been pasted on notice board or any publication in two newspapers have been made. Rule 72 (1) of the 1963 Rules provides for a declaration that a particular area has become available for re-grant of mining leases specifying a date from which applications will be invited. THE said date shall not be earlier than thirty days from the date of notice. Rule 72 is being quoted below : "rule 72. Availability of area for re-grant of mining lease to be notified.- (1) In any area, which was held under a mining lease under Chapter-II or reserved under Section 17-A of the Act, becomes available for re-grant of mining lease, the District Officer shall notify the availability of the area through a notice inviting applications for grant of mining lease specifying a date, which shall not be earlier than thirty days from he date of notice and give a 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) THE applications for grant of mining lease under sub-rule (1) shall be received within seven working days from the date specified in the notice referred to in the said sub-rule. If however, the number of applications received for any area is less than three, the District Officer may further extend the period for seven more working days and if even thereafter, the number of applications remain less than three, the District Officer shall notify the availability of the area afresh in accordance with the said sub-rule. (3) An application for grant of mining lease 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 not be considered and the application fee thereon, if paid shall be refunded. " From the perusal of the aforesaid rule, it is clear that the notice should specify a date from which the applications for grant of mining lease are to be submitted. Its further provides that notice is to be issued after the area becomes available for re-grant and not during the subsistence of the mining lease, therefore, if any notice has been issued during subsistence of the lease is in contravention of Rule 72 and is liable to be quashed only on this ground. The petitioner who is a prospective applicant is engaged in mining for his livelihood and has been deprived of being granted the mining lease on account of illegal action of the respondents. The petitioner and other prospective applicants had no information regarding the alleged notice issued in September, 2006 and inviting application from 17-10-2006 to 27-10-2006. It was in the month of December, the petitioner came to know that the notice has already been issued. No priority list till date as contemplated under Rule 7 of the Rules has been prepared by the District Magistrate and the areas mentioned in the aforesaid notice are still lying vacant. If proper notice under Rule 72 is issued, the genuine applicants can make an application. According to Rules, no mining lease or permit can be granted otherwise in accordance with the provision of 1963 Rules.
(3.) IT has been submitted by the petitioner that the notice dated 16th September, 2006 for withdrawal of area from auction or tender or auction-cum-tender and mentioning that the area will be available for mining lease under sub-rule (1) of Rule 23. IT provides that withdrawal of specified area shall not be the date during the subsistence of a lease granted under this Chapter, the provisions of Chapters II, III and VI of these Rules shall become applicable to such area or areas. Rule 24 is being quoted below : "24. Withdrawal of area from auction or tender or auction- cum-tender.- The State Government may by declaration withdraw any area or areas declared under sub-rule (1) of Rule 23 or part thereof from any system of iease referred to therein and from the date of withdrawal specified in the declaration which shall not be the date during the subsistence of a lease granted under this Chapter, the provisions of Chapters II, III and VI of these rules shall become applicable to such area or areas. " According to rules it is not permissible. The intention of the Legislature is that during the existing lease no notification can be issued for the purposes of withdrawal or availability of an area under Rule 24 of the Rules. It is undisputed that on 16th September, 2006, the areas mentioned in notice was not available for the purpose of mining lease, therefore, the notice published itself is bad and is liable to be quashed.;