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VEER NARAIN BUDHOLIYA versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Veer Narain Budholiya v. State Of U.P. & Others - WRIT - C No. 39404 of 2001 [2006] RD-AH 4131 (21 February 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.26

CIVIL MISC. WRIT PETITION NO.39404 OF 2001

Veer Narain Budholiya

Versus

State of U.P. and others

HON. SHISHIR KUMAR, J.

The petitioner has approached this Court for quashing the order dated 28.5.2001, Annexure-7 to the writ petition and issuing a writ of mandamus directing the respondents to grant a mining lease in favour of the petitioner to the extent of 1/3rd of plot no.22 measuring about 10 acres.

The case of the petitioner is that in response to the advertisement the petitioner submitted an application before the District Magistrate, Jhansi for consideration of his application. The application was filed on 15.10.1997.It has further been submitted by the petitioner that the grant of mining lease is regulated under the U.P. Mines & Minerals (Concession) Rules 1963. Rule 10 relates to the disposal of the application filed by a person. Rule 8- 2 (A) provides that if the application made by a person concerned is not disposed of, or no order is passed within a period of six months, it will be deemed to be rejected. The District Magistrate has failed to consider and dispose of the application of the petitioner within the mandatory period provided under the rule and when the petitioner approached the Divisional Commissioner by way of filing an appeal, the Commissioner has remanded the matter to the District Magistrate to pass the appropriate orders according to law. The matter has been remanded to the District Magistrate with a direction to the effect whether according to rules the application of the petitioner has been decided or not or it will be deemed to be rejected in view of Rule 8. The District Magistrate by order dated 13.7.2000 has passed an order that as no decision has been taken and clearance has not been given by the Forest Department, therefore, the application filed on behalf of the petitioner will be deemed to be rejected without any order. The petitioner aggrieved by the aforesaid order has filed an appeal before the State Government. It has also been submitted on behalf of the petitioner that the other two persons who were also applicants have also filed an appeal and 30.3.2001 was fixed. A copy of the summons have been annexed asAnnexures-4 and 5 to the writ petition which clearly go to show that 30.3.2001 was fixed for taking a decision on the revision filed by the petitioner as well the other applicants. The petitioner submits that the appeal filed by one Rakesh Kumar Gupta was allowed and the matter has been remanded to the competent authority for taking decision and for consideration of granting Patta in his favour. But the appeal filed by the petitioner has been rejected only on the ground that as no clearance certificate has been submitted by the Forest Department and the petitioner has not taken any steps to obtain the said certificate and if within the period of six months, the same was not received, it was the duty of the petitioner to send a reminder. But as no reminder has been sent, it appears that the petitioner was not interested in obtaining the Patta in his favour.

It has been argued on behalf of the petitioner that in the appeal by Rakesh Kumar Gupta a finding to this effect has been recorded that the application of other applicants was not considered within a period of six months due to the fact that no objection certificate has not been received from the Forest Department as such, the application was deemed to be rejected. A finding to this effect has also been recorded that obtaining a no dues certificate is the duty of the competent authority while considering the application. It is not the duty of the applicant who has made an application for grant of the mining lease. It has further been submitted that as the delay is on the part of the competent authority, therefore, the person who has made an application should not suffer on the aforesaid technical ground. In such a situation the petitioner submits that the petitioner has been discriminated as in one place for the same fact, the burden has been laid upon the petitioner and in the case of other applicants the burden has been placed by the revisional authority upon the administration. The said action of the revisional court is not justified. It is an arbitrary act and the petitioner has been discriminated and the order passed by the revisional authority is against the principles of natural justice. In such circumstances, the petitioner submits that the order passed by the revisional authority is liable to be quashed.

I have heard the learned counsel for the petitoenr and the Standing Counsel. A counter affidavit has been filed in which in paras 16 and 19 it has been stated that in the case of Rakesh Kumar Gupta no objection certificate of the Forest Department was received but in the case of the petitioner no such certificate was received, as such the different decision has taken place which is perfectly just and legal. After hearing counsel for the parties and after perusal of the record prima facie the order passed by respondent no.1 can not be sustained in view of the fact that in the similar circumstances the revision of other applicants is being allowed and the matter is remanded back to the competent authority for decision as a fresh according to law and in case of the petitioner the burden has been shifted upon the petitioner to obtain no objection certificate. The respondent no.1 has got no jurisdiction to record a contrary finding in similar type of cases where the controversy involved in both the revisions was whether according to Rule 8, the application filed for the purpose of consideration of mining lease, if no order has been passed within six months whether the same may be treated to be rejected. Another question was whether the burden is upon the applicant who made an application for granting the lease to get no objection certificate from the Forest Department. If the respondent no.1 was of the opinion according to rules that the burden was upon the District Magistrate to obtain no objection certificate and the burden was not upon the applicant in case of Rakesh Kumar Gupta whether respondent no. 1 was justified in placing the burden upon the applicant for obtaining the no objection certificate from the Forest Department. These two findings are contradictory itself and in my opinion respondent no.1 without any application of mind has passed the two contradictory orders which is not permissible in the law.

In such circumstances in my opinion, the order passed by respondent no.1 dated 28.5.2001, Annexure-8 to the writ petition cannot be sustained and is hereby quashed and the writ petition is allowed. The matter is remanded to respondent no.1 to consider the same as a fresh case according to law taking into consideration the order passed in Revision No. 376 of 2000 dated 27.12.2000 and shall pass a detailed and reasoned order after affording full opportunity to the parties preferably within six weeks from the date of production of a certified copy of this order before him.

21.2.2006

V.Sri/-


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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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