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SMT. NIRMALA DEVI versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Smt. Nirmala Devi v. State Of U.P. And Others - WRIT - C No. 62712 of 2006 [2006] RD-AH 20257 (29 November 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon.R.P.Misra, J.

Hon.Shishir Kumar, J.

Rejoinder affidavit filed today by the learned counsel for the petitioner be kept on record.

An application was filed by the petitioner on the basis of declaration and public notice for grant of mining lease, which was published on 29.5.2003.  The petitioner has submitted an application as required under Rule 72 of the U.P. Minor  Mineral (Concession) Rules, 1963 on 30.6.2003. The application was kept pending in spite of the fact that the complete formalities as required under the rules was done by the petitioner.  The Forest Officer has given his no objection certificate on 19.1.2005 and the respondent No.3 has also given a recommendation in favour of the petitioner vide its order dated 2.4.2005.  In spite of the aforesaid recommendation, the application of the petitioner was kept pending, as such, the petitioner has approached this Court by means of the Writ Petition No.57717 of 2006 which was disposed of finally vide its order dated 17.10.2006 directing the respondent No.2 i.e. District Magistrate, Allahabad to decide the said application of the petitioner for grant of mining lease within a period of three weeks.

It has been submitted by the petitioner that now on the basis of the direction issued by this Court the application has been rejected vide its order dated 3.10.2006 only on the ground that  proper procedure as provided under Rule 72 of the Act has not been complied with.  It has further been submitted on behalf of the petitioner that the order passed by the respondents is a non-speaking order without assigning any reason.  It has been submitted that immediately after the notification by the respondents, the petitioner has submitted an application for Plot No.179-Ga of village Kharka Dabar, measuring 10 acres Tehsil Meja, District Allahabad, immediately after the first day of expiry of 30 days. The said application was  conformity with Rule 72, therefore, the report to this effect submitted by the Mines Officer that as the application has been filed in 2003, and according to Rule 72 Sub-Clause 2 of the U.P. Minor Minerals (Concession) Rules, 1963, if the numbers of applications are less than three for granting of mining lease, there is a requirement of seven days further clear notice, therefore, as the same is not strict compliance of Rule 72 and about three years have already passed, therefore, at this stage, it will not be feasible to extend the seven days period and as such, fresh advertisement be made.  The aforesaid observation is not correct.  From the record it is clear that the application of the petitioner for grant of mining lease was strictly in accordance with Rule 72 of the Rules.

A counter affidavit has been filed.  It has been stated in the counter affidavit that under Rule 72 Sub Clause 2, there is a condition that if number of applications received for any areas is less than three, the District Officer may further extend the period for seven more working days and even thereafter the number of applications remain less than three, the District Officer will notify the availability of the area as a fresh in accordance with the Rule 72.  In the present case, it has been submitted that there was only one application against the notification-dated 29.5.2003.  The aforesaid short coming was notified by the Mines Officer on 14.9.2006, as such, a report has been given on the note sheet on the same day.  The District Magistrate has considered the matter and vide its order dated 27.9.2006 has cancelled the application of the petitioner and directed the case to be notified again under Rule 72 of the Rules.  It has further been submitted in the counter affidavit that the requirement of Rule 72 Sub clause 2 of the Uttar Pradesh Minor Minerals (Concession) Rules, 1963, there is a mandatory requirement that at least three applications must be received for grant of mining lease against the notification issued under the said rule.  If the said requirement is not fulfilled then the rule provides that fresh notification under the said rule shall be made and a fresh notification be made. The District Magistrate in such circumstances has rejected the application and is intending to issue a fresh notification for area which has already been notified in the year 2003.

We have heard learned counsel for the parties and have perused the record.

From the perusal of record, it appears that the Mines Inspector while considering the application of the petitioner for grant of mining lease has noticed that the requirement of Rule 72, Sub-Clause 2 of the Rules has not strictly been followed when the application of the petitioner was submitted, as admittedly, there was only one application of the petitioner, therefore, according to Rules, seven days further clear notice should have been given but as the same was not done immediately after expiry of one week from 30.6.2003, therefore, at this stage, he was of the opinion that now at this belated stage this will not be feasible as such, he has given his opinion that fresh notification for the area for which the petitioner has made an application should be again notified.

Apart from the aforesaid fact, without going into the merits and demerits of the aforesaid contention raised on behalf of the petitioner as the order dated 3.10.2006 (Annexure 1 to the writ petition), which has been passed on the basis of the direction issued by this Court appears to be an order without assigning any reason, therefore, we are of the opinion that the impugned order is liable to be quashed only on the ground that the respondents have passed an order without assigning any reason. Therefore, it will be presumed that order-dated 3.10.2006 is an order of non application of mind without assigning any reason.  It is well settled in law that in view of the Constitutional Bench Judgment of the Apex Court in S.N.Mukherjee Vs. Union of India reported in A.I.R.1990 S.C. 1984 the administrative authorities are also required and obliged to record a reason while passing an order.  It is only for the purposes that an administrative authority has recorded a reason while passing an order. The recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and assures a decree of fairness in the process of decision-making.

In view of the aforesaid fact, as the counter and rejoinder affidavits have already been exchanged, the writ petition can be disposed of at the admission stage. As such, we are of the opinion that the order dated 3.10.2006 (Annexure 1 to the writ petition) passed by the respondent No.3 is liable to be set aside only on the ground that no reasons have been recorded and the matter should be remanded back to the authority concerned to decide as a fresh.

In view of the aforesaid fact, the order dated 3.10.2006 (Annexure 1 to the writ petition) passed by the respondent No.3 is hereby set aside and the matter is remanded back to the respondent No.2 i.e. District Magistrate, Allahabad to pass appropriate detailed and reasoned order according to law within a period of three weeks from the date of production of the certified copy of this order.  

   

With these observations the writ petition is disposed of.

 

29.11.2006

SKD/62712/2006


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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