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SURESH NISHAD AND OTHERS versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Suresh Nishad And Others v. State Of U.P. And Others - WRIT - C No. 3865 of 2007 [2007] RD-AH 8971 (10 May 2007)

 

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

Reserved

Court No.35

Civil Misc. Writ Petition No. 3865 of 2007

Suresh Nishad and others

   Versus

    State of U.P. & others

Hon.R.P.Misra, J.

Hon.Shishir Kumar, J.

By means of the present writ petition, the petitioners have approached this Court for quashing the order impugned passed by the State Government and the District Magistrate filed as Annexures 1, 2 and 3 to the writ petition.  Further issuing a writ in the nature of mandamus directing the respondents to grant and approve the mining lease to the petitioners in pursuance of the provision contained under Rule 9(1) and 9 (2)(e) of U.P. Mines and Mineral Concession Rules, 1963.  Further prayer in the nature of mandamus has been made directing the respondents not to execute the mining lease in favour of respondents Nos. 7, 8 and 9 and not to permit the respondents to carry mining operation.

The District Magistrate, Mathura, respondent No.3 has issued a notice dated 27th May, 2006, in accordance with the provision of Rule 72 of U.P. Mines and Minerals Concession Rules 1963 and the same was got published in  newspaper Amar Ujala on 21.6.2006 for grant of mining lease.  Various persons filed application and after consideration the lease has been granted in favour of the respondents Nos. 7 to 9.  It has been stated by the learned counsel for the petitioners that the applications of respondents Nos. 7, 8 and 9  belongs to general category and they do not have their independent solvency.  It has further been stated that the petitioners are engaged in the traditional business of excavation of sand and as such, they carry preferential right over  other and in this regard they were demanded Form MM-14 but the respondents due to delay tactics has not issued Form MM-14.  According to Rule 9(2) the petitioners carry preferential right as provided under the rules as the petitioners belong to the category of socially and economically backward classes, therefore, they have preference over the respondents Nos. 7, 8, and 9 but the District Magistrate has wrongly recommended on form 'ka' to the State Government in favour of respondents Nos. 7,8, and 9.  In para 26 it has been stated that the respondents  belong to the different districts.  The respondents do not carry any preferential right over the petitioners as the petitioners belong to socially and economically backward community as provided in Rule 9(2)(e).  The solvency certificate of the respondents are not up the mark.  The preference as provided as under Rule 9(2)(e) cannot be superseded  by the respondents.  The finding to this effect that the petitioners' application was not complete in spite of the fact that the notice as provided under Rule 9 (2) of the Rules, defects were not removed, as such, the petitioners do not come under the zone of consideration.

On the other hand, Sri Shashi Nandan, learned Senior Advocate                 learned counsel for State of U.P. has submitted that the questions raised in the present writ petition by the petitioners are the questions of fact on the basis of relevant documents submitted by the parties.  These are the questions which can only be considered and decided by the authorities below, it cannot be decided by this Court while exercising jurisdiction under Article 226 of the Constitution of India. As the petitioners have got an alternative remedy by way of filing an appeal under Section 77 of the U.P. Minor Minerals (Concession) Rules, 1963, as such, the writ petition should be dismissed on the ground of alternative remedy.

Sri Vishnu Pratap, learned counsel for the respondents has stated and brought on record by way of filing the counter affidavit that the contention of the petitioners is not correct that he was not issued notice for remove the defects.  The learned counsel for the respondents has brought to the notice Anneuxre 1 which was issued to the petitioners for the purposes of removing the defects as provided under Rule 6(2) of U.P. Minor Minerals (Concession) Rules.  

Further submission has been made by the learned counsel for the respondents that the points raised by the petitioners in the present writ petition are totally based on relevant documents which are to be considered whether the solvency certificate was correct or not whether the respondents were eligible for consideration and whether the application filed by respondents were complete according to rules.  These are the questions of fact to be considered by the relevant authority.  As the petitioners have got an clear efficacious alternative remedy, therefore, the writ petition should be dismissed on the ground of alternative remedy.

We have heard learned counsel for the parties and have perused the record.  The question raised by the learned counsel for the petitioners is regarding verification of the documents submitted by the parties.  Whether they were genuine  or not,  whether the solvency certificate filed by the  respondents and the petitioners were correct or not,  whether the application filed by the petitioners were complete according to rules or not and if there were any defect and notice was given and petitioners have not removed the defect, whether in spite of aforesaid fact they were entitled for consideration.  The another point raised by the learned counsel for the petitioners regarding malafide against the officers, that question cannot be considered by this Court as the petitioners have not impleaded any officer by name.  It is now well settled that unless  and until  the person against whom the malafide is alleged is impleaded by name and an opportunity to that effect is given to that person against whom the malafide has been alleged, the question of malafide cannot be taken by the consideration by the Court.

In view of the aforesaid fact, we are of the view that the present writ petition is liable to be dismissed on the ground of alternative remedy. The writ petition is dismissed.  In case the petitioners file an appeal, it is expected that may be decided expeditiously as  early as possible.

No order as to costs.

Dated:  May  10    , 2007  

SKD      


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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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