Chuhul vs State of U.P. and Others

Arun Tandon and Harsh Kumar, JJ.—Petitioner before this Court is stated to have made an application for grant of mining lease in respect of minor minerals with reference to the notification published by the District Magistrate, Kushi Nagar dated 30.9.2011, Annexure-1 to the present petition. It is his case that the application was not processed by the District Magistrate as required, therefore, he had to approach the Hon''ble High Court by means of Civil Misc. Writ Petition No. 65513 of 2012. This writ petition was dismissed vide order dated 19.12.2012 with the observation that the District Magistrate may proceed in accordance with the Government Order dated 31.5.2012 and the Government Orders issued from time to time. It is not in dispute that no further action could be taken only because of intervention of the Government Order which prohibited grant of any lease in respect of mining of minor minerals, which ban admittedly continued till 22.10.2014 when a decision has been taken to grant leases in accordance with the amended provisions.

We may also record that necessary amendments in the U.P. Minor Minerals (Concession) Rules, 1963 (herein after referred to as the Rules, 1963) and the conditions on which such leases are to be granted have been materially changed in view of the judgment of the Apex Court in the case of Deepak Kumar etc. Vs. State of Haryana and Others etc., , and in view of the orders of the National Green Tribunal.

With the issuance of the Government Order dated 22.10.2014 in conformity with the amendments made in the Rules, 1963, the District Magistrate, Kushi Nagar has now published a fresh Advertisement dated 8.12.2014 inviting applications in sealed cover in Part A and Part B from the prospective candidates.

The petition challenges the said tender notice on the ground that his earlier application made in response to the Advertisement dated 30.9.2011 must be processed first and the petitioner being ''Mallah'' by caste and a person traditionally engaged in mining of minor minerals is entitled to preference under the provisions now applicable. We have heard learned Counsel for the parties and have gone through the records of the present writ petition.

The application made by the petitioner in response to the Advertisement dated 30.9.2011 has lost all its efficacy for two reasons:

(a) The period for which such advertisement was published i.e. three years has exhausted itself.

(b) In the matter of grant of mining rights of minor minerals, there has been a sea change, as noticed herein above. Leases can only be granted in accordance with the amended provisions and the directions issued under the judgment of the Apex Court in the case of Deepak Kumar (supra) and in terms of the order of the Green Tribunal. Therefore, there cannot be any mandamus to consider the application made by the petitioner at this stage. The prayer in that regard is refused.

So far as the right of preference under the amended provisions is concerned, we leave it open to the petitioner to claim such right before the District Magistrate, Kushi Nagar while responding to tender notice, who shall examine all aspects of the matter at the time of settling the rights under the Advertisement in question. With the aforesaid observations, the present writ petition is disposed of.