- (1.) HEARD Counsel for the parties.
(2.) IN the instant writ petition the petitioner has assailed the order dated 27.7.2009 passed by the respondent no.1 [Secretary Department of Geology and Mines] and the consequential order dated 25.8.09 passed by the District Magistrate, Barabanki whereby a joint mining leases have been granted in favour of respondents nos. 7 to 9, namely,Dharmendra Kumar Singh son of Bhagwati Prasad, Dharmendra Kumar Singh son of Mukhtar Singh and Azad Singh son of Late Harihar Singh. The facts giving rise to the present writ petition are that a notification dated 18.7.08 was issued inviting applications under the provisions of Chapter-II of the U.P. Minor Mineral (Concession) Rules, 1963 [ in short referred to as the '1963 Rules' ]wherein four areas of District Barabanki were shown to be available for grant of mining lease. As per the notification, applications were to be received in the office from 18.8.09 to 25.8.08 and the areas which were notified were, namely, Khand-1 village Tapesipah, Tehsil Ram Nagar measuring 90 acres, Khand-II, village Tepesipah Dhokaria, Tehsil Ram Nagar, measuring 90 acres, Khand III village Dhokaria, Tehsil Ram Nagar measuring 32 acres and Khand-IV village Tapesipah, Tehsil Ram Nagar, measuring 90 acres. It was also provided in the notification that the applicants should submit the details of their financial resources etc. for the determination of preferential rights under Rule 9. Pursuant to the aforesaid notification, petitioners applied for grant of mining lease of the Khand no.1, Khand no.2 and Khand No.4 on 22.8.08. Respondents no. 7 to 9 jointly applied for grant of mining lease of Khand No.1, Khand No.2 and Khand No.4 on 18.8.2008. In respect of Khand no.1 total 4 applications were received, in respect of Khand no.2 also four applications were received whereas in respect of Khand no.4 total 5 applications were received. None of the applications which were received on the first date, were complete and accordingly a notice under Rule 6(2) of the U.P. Minor Minerals (Concession) Rules, 1963 was issued to the applicants for completion of necessary formalities as per Rule 6(1) of the Rules of 1963. Pursuant to the notice dated 18.9.08 under Rule 6(2) of the Rules of 1963, petitioners as well as respondents nos. 7 to 9 completed some of the formalities as provided under Rule 6(1) of the 193 Rules on 3.10.2008. Respondent no.3 on the basis of the recommendations of the respondent no.6 dated 10.11.2008 and 11.11.2008 forwarded the matter to the State Government. Consequently, the Director, Geology and Mining vide impugned order dated 27.7.2009 granted the prior approval for grant of mining lease in favour of the respondent no. 7 to 9 with the condition that the respondent no.3-District Magistrate shall ensure that the provisions of U.P. Minor Mineral (Concession) Rules, 1963 are adhered to but without completing the necessary formalities as required under the aforesaid 1963 Rules, the District Magistrate issued grant order of the lease in favour of respondents nos. 7 to 9. Counsel for the petitioner has vehemently argued that the Assistant Geologist, Regional Office, Faizabad has considered the application of the respondent no. 7 to 9 vis-a-vis Mohsin Ali and illegally determined the preference under Rule 9(2) in favour of the respondent no.7 to 9 whereas the application of the petitioners have not been considered at all treating the same as not having been received on the first date. According to her, the application of the petitioners as also of the respondent nos. 7 to 9 remains incomplete even after issuance of notice under Rule 6(2) of 1963 Rules which could not have been condoned and if it was to be considered then both the applications ought to have been considered as having preferential rights of each candidates vis-a-vis the other should have been examined under Rule 9(2) 1963 rules. Moreover, after coming into force of the 29th Amendment, the applications could not have been entertained without compliance of Rule 6(1)(g). The State Authorities are not vested with the power to dispense with the mandatory provisions which requires documents, referred to in Rule 6(1)(g) and when the applications of all the candidates were incomplete, no preferential rights on the basis of said incomplete applications could have been determined. Elaborating her arguments, learned Counsel for the petitioner submitted that respondent no.7 only has mining experience on the basis of permit granted in his favour whereas the respondents no. 8 and 9 have no mining experience. In the chart prepared by the opposite parties, the respondent no.7 has been shown to have mining experience and financial solvency of Rs. 30 lacs has been furnished but on an application by the petitioners under Right to Information Act, the information tendered indicates that the respondent no. 7 has a solvency of Rs. 30 lacs, whereas a perusal of the chart would indicate that there exists no solvency of the respondent no. 8 at all.
(3.) ON the strength of the decisions rendered in Ashok Kumar Tripathi vs. State of U.P. 2007 (25) LCD 1674, Jumma vs. State of U.P. 2007(4)ALJ 225 and Dinesh Pratap Dwivedi vs. State of U.P. and others; 1995 ALL.L.J. 872, learned Counsel for the petitioner argued that the date of completion of the application would be the date of receipt of application, and therefore, the interpretation given by the respondent no.6 was absolutely erroneous and on the basis of the same, no recommendation of preferential determination of rights could have been passed in favour of the respondents no. 7 to 9. Summing up her arguments, learned Counsel submitted that lease grant order and the impugned order being not in conformity with the 1963 Rules is wholly illegal apart from being in gross violation of Section 19 of the Mines and Mineral (Development and Regulation )Act, 1957 and as such both the orders are liable to be set-aside. ;