- (1.) M. L. Singhal, J. This is a writ peti tion filed under Article 226 of the Constitu tion of India for quashing the notice dated 3-4-1997 (Annexure T to the writ petition), issued by the respondent District Of ficer/collector, Mau inviting applications for grant of lease for excavation of sand under the provisions of U. P. Minor Minerals (Concession) Rules, 1963 (hereinafter, for brevity, referred to as Rules, 1963 only)
(2.) THE respondent District Of ficer/collector Mau by impugned notice dated 3-4-1997 invited applications for granting mining lease of the sand under Chapter II of 1963 Rules. THE petitioner a 'mallah' by caste claiming preferential right in respect of the grant of lease under Rule 9-A of the 1963 Rules has two-fold grievance against the said notice. Firstly, in the said notice Khasra No. of the mining area has not been spelled out as required under Statutory Form MM-1, which is sub mitted under Rule 5 of 1963 Rules for grant of mining lease. THE area for which lease is to be granted not being well defined in the notice, it will not be possible for the petitioner or any other person to file a proper application for the grant of lease, according to the rules contained in Chapter II of Rules, 1963 and the application being defective will ultimately entail in its rejec tion. Another serious consequence would be that it will not be possible for the respon dent to determine the priority amongst the applicants. THE respondent has also not is sued any guideline to the prospective leases so as to enable the petitioner to ascertain the area. THE petitioner will also not be able to file four copies of the cadastral survey map as required by Rule 6 (c) of the 1963 Rules. Secondly, in the impugned notice lot No. 4 is for 300 acres, which contravenes statutory limit of 30 acres fixed in Rule 10 by the Legislature in Rules, 1963. THE State Government by Twentieth Amendment has inserted Rule 9-A and Rule 53-A by which preferential rights have been given to per sons of certain castes/class who are socially and educationally backward and are actually engaged in mining operations. By forming lot of land exceeding 30 acres, the applicants who are socially and educationally back ward, will not be able to deposit 25% of the total amount of lease immediately, required under Rule 14 (3), frustrating the purpose of Twentieth Amendment. THE impugned notice also does not disclose that in the interest of mineral development the areas were being increased from 30 acres. On the aforesaid two grounds the petitioner has prayed for quashing the aforesaid impugned notice. A counter-affidavit has been filed on behalf of the respondent District Officer Collector, Mau. On behalf of the respon dent it has been contended that the im pugned notice is in accordance with the Rules, 1963 Rule 6 of the Rules 1963 speaks of two types of map-cadastral map and topographical map. The Mines Officer, Area Office, Gorakhpur through his letter dated 23rd March, 1995 (vide Annexure 'c. A.-1') had informed the respondent that in case of topographical map it was not necessary to mention the khasra No. in the notice. By the impugned notice applications have been invited for grant of mining lease under topographical map and so khasra No. was not required to be spelled out in the notice. It is true that under Rule 10 the limit of 30 acres had been fixed by the Legislature but by the Government order dated 8-9-1995 (vide Annexure 'c. A.-2') the said limit has been raised up to 50 acres. Further, clause (3) of the said Government Order only fixed the outer limit of the area, the respondent is not prohibited from granting mining lease beyond 50 acres. The lot men tioned in the notice has been prepared by the Mines Officer, Area Office, Gorakhpur. By notification dated 29-5-1985 issued by the State Govt. (vide Annexure C. A. 3) power has been delegated to the District Officer/collector to grant lease in excess of the statutory limit prescribed in Rule 10. Thelot No. 4of300 acres assailed in the writ petition was prepared after taking into con sideration the problems and other condi tions of the area. Even the wife of the petitioner has filed application for allot ment of the disputed lot. The dispute in the instant writ petition relates to allotment of mining lease in river bank, the provisions of Rule 11 are not applicable in the case. We have heard the learned counsel for the petitioner Shri Mukesh Prasad and learned Standing Counsel for the State and have gone through the record.
(3.) AS regards the first grievance that the impugned notice does not contain the khasra No. of the mining areas, a perusal of the impugned notice (Annexuret) shows that No. of the lots, the area of the lot and sufficient details of the said lots, have been given. Since the applications have been in vited for grant of mining lease under typo graphical map, mention of the khasra No. is not necessary, as also written by the Mines Officer, Area Office, Gorakhpur to the respondent on 23-3-1995 (vide Annexure 'c. A.- 1 ). The learned counsel for the petitioner placed reliance upon a Division Bench decision of this Court in Kamlesh Nishad v. District Officer/district Magistrate, Gorakhpur, AIR 1995 All 374. In the said case the area for which the applications were invited also not specified in the notice nor the guidelines were given to the ap plicants to collect the details in respect of such area, the notice was considered vague and quashed. However, a perusal of the paras 17, 18, 19, 20, 21 and 22 of the judg ment of the Division Bench shows that the defence taken on behalf of the respondent was different. In that case it was conceded on behalf of the State Government by the learned additional Advocate General that lease eventually was to be granted for smaller areas than the areas specified in the impugned notice. Here in the present case, no such statement has been made by the learned Standing Counsel on behalf of the respondent. On the outer hand, the defence raised is that the upper limit of 30 acres fixed in Rule 10 of Rules 1963 has been relaxed initially under the provision to Rule 10 and later on under Rule 68 of the Rules 1963 by the State Government. Here it is not the case that eventually the lease would be granted for smaller areas than the area of the lots specified in the imputed notice. So when the lease has to be granted in respect of the whole lot, further identification of the lot by the applicants is not required. The details regarding the identity of the lot in the impugned notice are sufficient. The priority under Rules 9 and 9-A of the Rules can be determined among the applicants for the grant of lease. So the facts and contentions raised in Kamlesh Nishad's case (supra) being different, the decision in that case does not help the petitioner. It is true that in the Statutory Form MM-1 of the applica tion for grant of lease, there is a column for mention of Kiiasra No. and in Rule 6 (C) of the Rules, 1963 there is a requirement for filing of a cab astral map, but the said Rule 6 (C) provides that in case the area is not covered by cadastral survey, copies of the topographical survey map are to be filed with the application for grant of mining lease. Further, in para 14 of the counter-af fidavit, the respondent has also alleged that in the instant case the office of the respon dent is issuing topographical map to each and every claimants and therefore, the ques tion of submitting cadastral map along with the application does not arise. The wife of the petitioner in her application for gram of lease has also annexed topographical map along with her application. Furthermore, the respondent himself is not pressing for those requirements, it is expected that the respondent shall not reject the application for failure to comply the aforesaid two re quirements. So the impugned notice cannot be said to be vague. The argument raised by the learned counsel for the petitioner assail ing the said notice being vague, has no force, and is rejected. Coming to the second argument, namely, that the impugned notice abridges the provisions of Rule of Rules, 1963; the said Rule 10 is extracted hereunder: - "10. Maximum area for which, naming lease may be granted.-No person shall acquire in respect of any minor mineral, one nr more mining leases covering a total area of more ;hand thirty acres; Provided that if the State Government is of opinion that in the interests of mineral develop ment it is necessary so to do, it may, for reasons to be recorded, permit any person to acquire one or more mining leases covering an area in excess of the aforesaid maximum of thirty acres. Explanation-For the purpose of these rules, a person acquiring by or in the name of any other person a mining lease which is intended for himself shall be deemed to be acquiring it him self. ";