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RAM ADHAR versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Ram Adhar v. State Of U.P. And Others - WRIT - C No. 71103 of 2005 [2007] RD-AH 3200 (26 February 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

     Court No.24

CIVIL MISC. WRIT PETITION NO.71103 OF 2005

Smt. Shanti Devi and another    Vs.    Sohan Lal and others

---------------------------------------  

Hon'ble Tarun Agarwala, J.

The District Magistrate, Kushi Nagar, issued a notice dated 19.1.2005 under Rule 72 of the U.P.Minor Minerals [Concession] Rules 1963 [ hereinafter referred to as the Rules  of 1963] inviting applications for grant of a mining lease. The petitioner applied for a mining lease of sand for plot No.2, as indicated at serial no.2 of the notice, which showed an area of 15 acres from Pipra to Chhitauni. The petitioner alleged that his application was complete in all aspects, as provided under Rule 6 of the Rules of 1963. It was also alleged that an enquiry was conducted by the District Officer and a report of the Mines Officer was also obtained. It is alleged that the report of the Mines Officer dated 16.3.2005 was incorrect and since, other complaints were made before the Commissioner, a fresh order was issued by the Commissioner, pursuant to which the Mines Officer, Gorakhpur submitted a  fresh report indicating that the application of the petitioner was found to be complete in all aspects. It is also alleged that apart from the application being complete, the petitioner had a preferential right and, based on this, the District Magistrate granted a mining lease to the petitioner on 11.5.2005. Based on the aforesaid order, the petitioner deposited the requisite stamp and royalty and a lease-deed was executed on 20.5.2005 in accordance with the provisions of Rule 14 of the Rules of 1963.

The respondent no. 5, being aggrieved by the grant of a mining lease in favour of the petitioner, filed a revision before the State Government under Rule 78 of the said Rules, bypassing the provision of an appeal before the Commissioner, as contemplated under Rule 77 of the said Rules. The revisional authority, by the impugned order dated 19.10.2005, allowed the revision and cancelled the mining lease in favour of the petitioner and further directed the District Magistrate to grant a fresh mining lease in accordance with the provisions of the Rules of 1963 and Government Order dated 16.10.04. The petitioner, being aggrieved by the impugned order, has filed the present writ petition.

Heard Sri S.P. Singh, the learned counsel for the petitioner, Sri S.K.Dwivedi, the learned counsel appearing for respondent no.5 and Sri Chandra Shekhar Singh, the learned  Additional Chief Standing Counsel for respondent nos.1 to 4.

The revisional authority in the impugned order, held that the revisionist's map tallied with the cadastral  map kept with the State Government and that the map filed by the petitioner did not tally either with the cadastral map or the topographical map. Consequently, the application of the petitioner was not complete as contemplated under Rule 6 of the Rules of 1963. The revisional authority further found that the demarcation of the area of the site in question was not mentioned, which was a fatal error and that a comparative chart was not prepared while arriving at a conclusion that the petitioner was  entitled to be given a preferential treatment.

The learned counsel for the petitioner submitted that the impugned order of the State Government was manifestly erroneous in law, inasmuch as, the petitioner's application was complete in all aspects, as contemplated under Rule 6 of the Rules of 1963 and the finding that the petitioner's map did not tally either with the cadastral map or with the topographical map was wholly erroneous and against the material on record. The State Government has produced the original record and this Court had the benefit of perusing  the map filed by the petitioner with the map kept with the State authorities. A bare perusal of the  map filed by the petitioner indicates that it does not tally with the map kept by the authorities.

The question before the Court, is whether the map filed by the petitioner is a map which is contemplated under Rule 6 of the Rules of 1963 or not ? In order to dwell  on this aspect of the matter, it is necessary to peruse the relevant provisions of Rule 6 which reads as under :

"6. Application fee and deposit for grant of mining lease-- [1] Every application for grant of a mining lease shall be accompanied by--

(c )     four copies of the cadastral survey map in which the area applied for is clearly marked and in case such area is not covered by cadastral survey, four copies of topographical survey map on a scale at least 4" = 1 mile, on which the area applied for is accurately marked."

A perusal of the aforesaid provisions indicates that one of the requirement is, that four copies of the cadastral survey map is required to be filed  and if that area is not covered by a cadastral survey map, in that case, four copies of a topographical  survey map is required to be filed. As per Webster's Dictionary Deluxe Encyclopaedic 1987 edition, a cadastral map means-

"a large scale map showing the extent and value of real estate for the purposes of taxation."

and a Topographical map means "a map of surface features, natural and artificial, of a particular region."

As per Longman Dictionary of Geography by Audrey N. Clark, 1988 edition, a cadastral map means-

"1. loosely applied to any map on a scale large enough to show every field or plot of land and building.  

2. specifically- a large scale map sufficiently accurate for exact boundaries and (if necessary) the ownership of real property (CADASTRE) to be shown on it."

The same dictionary defines a Topographic map- as

"a map, usually on a fairly large scale ( e.g. 1:50 000) representing surface features, e.g. Landforms and other natural phenomena as well as features produced by human activities."

From the aforesaid, a cadastral map is a land map showing the exact boundaries and number of the plot. It is basically a revenue map, whereas a topographical map displays  surface features, e.g. landforms and other natural  and artificial  features of a particular region. From a perusal of Chapter-18 of the book "Law and Principles of Survey" written by Girja Shanker Srivastava [Second Edition ], a cadastral map is prepared by a theodolite instrument  whereas, a topographical maping is done by an official agency namely, the Survey of India which provides a  picture of the land scape namely,  physical and cultural features, whereas in a cadastral  map, the plot number/khasra numbers are shown. In a topographical map, only the latitude and longitude is shown and, at a times, the height of the land in question is also shown but plot numbers are not shown.

In view of the aforesaid, this Court is of the opinion, that the basic requirement under Rule 6 is that the application should be accompanied by four copies of the cadastral map and if there is no cadastral survey map of that area, in that case, in the alternative, a topographical survey map is required to be filed. In the present case, there exists a cadastral survey map of the area . The petitioner has not filed a cadastral map and had only filed a map, which in the opinion of the Court, is not a cadastral map as contemplated under Rule 6(1)(c) of the Rules of 1963. Consequently, the application of the petitioner could not have been accepted in the first place. In the opinion of the Court, the usage of the word  "shall" under Rule 6(1) of the Rules makes it apparently clear that the requirement contemplated under Rule 6 is mandatory in nature.

In view of the aforesaid, this Court is of the opinion, that the application of the petitioner was not complete, as contemplated under Rule 6(1)(c) of the Rules of 1963. Consequently, the District Magistrate, Kushinagar committed an error in granting a lease to the petitioner.

The learned counsel for the petitioner submitted that if the application was not complete, in that event, an opportunity ought to have been given to the petitioner to remove the defect as contemplated under Rule 6(2) of the said Rules which reads as under :

"6. (2) If the application is not complete in any respect or is not accompanied by the fee-deposit or the documents mentioned in sub-rule (1) the District Officer or the officer authorised by the State Government in this behalf, shall, by fifteen days a notice require the applicant to complete the application in all respect or, to deposit the fee or furnish the documents within such time as may be specified in the notice and if the applicant to do so within the specified time such application shall not be considered."

No doubt, the aforesaid provision contemplates that an opportunity is required to be given to the petitioner to remove the defect. However, in the present case, I find that even the application of the respondent no.5 was also defective and was not complete. Consequently, after a lapse of almost two years, no useful purpose would be served in permitting the parties to remove the defect. The revisional court had rightly directed the Collector to start the process afresh after complying with the provisions of Rule 6 of the Rules of 1963 read with Government order dated 16.10.2004.

The learned counsel for the petitioner also submitted that the revision filed by the respondent no.5 before the State Government was not maintainable and that the petitioner had a remedy of filing an appeal under Rule 77 of the Rules. The learned counsel further submitted that the provision of an appeal could not be bypassed  by the respondents nor a revision  could be filed straightaway.  Rule 78 of the Rules reads as under :

"78. Revisions-  The State Government  may either suo moto at any time or on an application made within ninety days from the date of communication  of the order, call for an examination of the record relating to any order passed proceeding taken by the District Officer Committee, Director or the Divisional Commissioner under these rules and pass such orders as it may think fit."

From the aforesaid, it is clear that a revision could be filed bypassing the remedy of an appeal and there is no embargo that a revision could only be filed after the appeal is decided. In any case, in the present case, certain directions were issued by the Commissioner asking for the report from the Mines Officer. Consequently, the Court is of the opinion that in the facts and circumstances of the present case, the revision was rightly filed and that the impugned order could not be set aside on the sole ground that an appeal was not filed by the respondent no.5.

The learned counsel for the petitioner further submitted that the lease was for a period of three years and that almost two years have passed and therefore, the petitioner should be permitted to continue till the expiry of the lease. In my opinion, the petitioner had been permitted to operate the mining lease by an interim order of the Court. The petitioner's application was not complete and therefore, the petitioner could not be permitted to operate the mining lease. Allowing the continuation of the lease, when infact, the petitioner was not competent would be a traversity of justice. Consequently, the submission of the learned counsel for the petitioner is bereft of merit.

For the reasons stated aforesaid, I do not find any merit in the writ petition. The writ petition is dismissed.

Dt.26.2.2007

Ak/71103/05


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