Ashok Bhushan, J. - (1.) Heard Sri B.S. Pandey, learned Counsel for the petitioner and Sri A.P. Tewari, learned Counsel appearing for the respondent No. 4 as well as learned Standing Counsel.
(2.) By this writ petition, the petitioner has prayed for quashing the order dated 4.4.2006, passed by the Commissioner, Gorakhpur Division, Gorakhpur, deciding the appeal filed by the respondent No. 4 under Rule 77 of U.P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as '1963 Rules').
(3.) Brief facts of the case, which emerged from pleadings of the parties are; that the District Magistrate issued a notice dated 19.1.2005 for availability of area for grant of mining lease under Rule 72, which also included an area of 34.54 acres of land of village Marad Vindwaliya, district Kushi Nagar. The petitioner applied in pursuance of the said notification. The respondent No. 4 also made an application dated 21.2.2005 in response to the said notice. The District Magistrate issued another notice on 1.10.2005, notifying the same area of 34.54 acres of land of village Marar Vindwaliya, in response to which the petitioner as well as the respondent No. 4 moved applications. The respondent No. 4 after issuance of notice dated 1.10.2005, filed an appeal before the Commissioner being appeal No. 4 of 2005, challenging the notice dated 1.10.2005. The case of the respondent No. 4 before the Commissioner was that no decision having been taken for grant of lease in response to the notice dated 19.1.2005, the District Magistrate could not have issued a fresh notice. Comments were called for by the Commissioner from the District Magistrate. The District Magistrate in his comments, stated before the appellate authority that in view of Rule 8(2)(a) of the 1963 Rules, since six months period has elapsed from receipt of the earlier applications, no consideration could be made on the earlier applications due to which fresh notice has been issued. The appellate authority disposed of the appeal taking the view that the view of the Collector that since six months' period has elapsed from receipt of the earlier applications hence, they be treated to be rejected, is contrary to the provisions of U.P. Minor Mineral (Concession) Rules, 1963. The Commissioner disposed of the appeal vide impugned order dated 4.4.2006 and directed the District Magistrate to decide the applications received after notice dated 19.1.2005 and thereafter, if necessary proceed to decide the applications received after notice dated 1.10.2005.;