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2004 DIGILAW 1152 (ALL)

PARMATMA YADAV AND RAJESH SHAHI v. STATE OF U. P

2004-05-28

JAGDISH BHALLA, KAMAL KISHORE

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( 1 ) BY the impugned order dated 24. 1. 2004 issued by the State government in pursuance whereof the District Officer/district Magistrate has granted permit to the opposite party- Chaturbhuja Nand Yadav, has been challenged by the petitioner on the ground that the permit has been granted without inviting general applications through News Paper and without following the procedure prescribed in Rules 51 to 56 of the U. P. Minor Mineral (Concession) Rules, 1963. ( 2 ) ACCORDING to learned Counsel for the petitioner, the opposite party no. 3 has been granted mining permit for 10. 2 acres relating to sand area situated in amauli to Barhaj, which was earlier subjected to an auction on 4. 2. 2003 in which eight persons participated and the highest bid of Rs. 7,70,000/- was of one Vijay Pathak. Approval was sought of the State Government but it declined. ( 3 ) THE area in question, therefore, should have been put to re-auction but according to the petitioner, it was not done and in the meantime opposite party no. 4 made an undated application directly to the State Government for grant of mining permit for a period of six months. On this application, the State government passed an order directing the District Magistrate, Gorkahpur to make recommendations after scrutiny. The District Magistrate while recommending the grant of mining permit in favour of opposite party-Chaturbhuja Nand Yadav mentioned that efforts were made to put the sand area on re-auction by advertising and dates were fixed but no one participated and the area is lying vacant for auction, which was being subjected to illegal mining. ( 4 ) LEARNED Counsel for the petitioner has submitted that this recommendatory note in favour of opposite party- Chaturbhuja Nand Yadav was sent without any public notice or inviting applications from the interested persons and when he came to know about this development, he made an application to the State Government on 13. 1. 2004 whereby the petitioner offered Rs. 7,53,000/- against the sand area but till date no order has been passed by the State Government on this application of the petitioner. However, the District Officer on 29. 1. 2004 issued a letter mentioning therein that opposite party- Chaturbhuja Nand Yadav has applied to excavate the sand to the extent of 1500 cubic meter. 7,53,000/- against the sand area but till date no order has been passed by the State Government on this application of the petitioner. However, the District Officer on 29. 1. 2004 issued a letter mentioning therein that opposite party- Chaturbhuja Nand Yadav has applied to excavate the sand to the extent of 1500 cubic meter. Thus the action of the opposite parties is in complete departure of the U. P. Minor Mineral (Concession) Rules,1963 and in particular Rules 52 and 53 which deals with the procedure for making application to the District Officer and its disposal. ( 5 ) IN contrast, learned Counsel appearing on behalf of opposite party no. 4 has submitted that there is no illegality in grant of permit to the opposite party no. 4 as Concession Rules, 1963 provides for making an ad interim arrangement for increasing the revenue of the State Government. The impugned permit was granted to the opposite party no. 4 in pursuance to the order dated 7. 1. 2004 issued by the Director, Mining Directorate as such the contention of the petitioner that the mining permit was granted to the opposite party-Chaturbhuja Nand Yadav contrary to the Concession Rules, 1963 is absolutely false and incorrect. Furthermore, the proper application was given by the answering respondent on the Form as prescribed in MM-8. ( 6 ) LEARNED Standing Counsel defended the impugned order by saying that since no one participated in the re-auction, the State Government looking to the loss of revenue, in accordance with the provisions of U. P. Minor Mineral (concession) Rules, 1963 decided to grant mining permit for a short period. Thus there is no illegality in the impugned order dated 24. 1. 2004. ( 7 ) WE have examined the materials on record and the original record, which was reluctantly produced by the District Authorities through Standing counsel. ( 8 ) THE record produced by the District Authorities is sketchy one. The register, which is meant for making entries of applications, is a fresh register having no entries except the entry relating to opposite party- Chaturbhuja nand Yadav. This register starts with the first entry in the name of opposite party- Chaturbhuja Nand Yadav. Earlier registers were not produced inspite of the directions. There are no signatures of the officer/official concerned on every item. This register starts with the first entry in the name of opposite party- Chaturbhuja Nand Yadav. Earlier registers were not produced inspite of the directions. There are no signatures of the officer/official concerned on every item. When the representative of District Officer were asked relating to other registers, the Officer informed that for number of years no register has been maintained. The application for opposite party- Chaturbhuja Nand Yadav was received by the authorities in December, 03 but, it appears, that entry has been made in the Register when this court summoned the original record. Thus the record produced by the District Authorities does not inspire confidence. Keeping the complete record of applications is mandatory in nature as provided in Rule 56 of the Concession Rules, which requires that a register of all application for mining permits, with details of permits issued, shall be maintained in Form MM-9. ( 9 ) IT has also been brought to our notice that the State is suffering huge loss of revenue as for such a vast area only Rs. 22,500/- @ Rs. 15/- cubic meter has been received. Generally, this court avoids in entering into the calculations of amount but from the record it clearly transpires that had the authorities followed the proper procedure for grant of permit, the Sate would have fetched handsome revenue. ( 10 ) WHERE an area becomes available for grant of mining lease or permit, if the prescribed procedure as envisaged under U. P. Minor Minerals (Concession)Rules, 1963 is not followed, then it may lead to favourtism and bias, ultimately resulting in corruption. It is hard to digest that when the area was put to re-auction no one participated and it was for this reason, the District Authorities requested for grant of permit to opposite party- Chaturbhuja Nand Yadav and that too on a very petty amount. On other hand, the petitioner had offered Rs. 7,53,000/- against the entire sand area of 102 acres as is evident from the nilami dated 4. 2. 2003 and even made an application to the State Government on 13. 1. 2004 offering Rs 7,53,000/- against the sand area but no decision was taken by the authorities concerned. Because of the conduct of the State and district authorities, the only looser is the State Government. The rule is that what cannot be done directly ought not to be done indirectly. 1. 2004 offering Rs 7,53,000/- against the sand area but no decision was taken by the authorities concerned. Because of the conduct of the State and district authorities, the only looser is the State Government. The rule is that what cannot be done directly ought not to be done indirectly. ( 11 ) IT would also be relevant to mention that during the course of final arguments on 25. 5. 2004, a copy of the public notice published in daily newspaper has been produced whereby the mining area in question has also been included and the applications from the interested persons have been invited for excavation of sand. Had this procedure been adopted by the District officer while granting mining permit to opposite party- Chaturbhuja Nand yadav, the State would not have suffered revenue losses. Needless to mention that rule does not permit the State Government to grant mining permit to any person of its choice ignoring the requirements of the provisions of U. P. Minor mineral (Concession) Rules, 1963. In view of the above, we are of the view that permit was granted to the opposite party- Chaturbhuja Nand Yadav ignoring the provisions of Concession Rules. The District Officer, it appears, had not applied its independent mind to the entire matter but has passed the impugned order on the dictates of some other authorities. ( 12 ) FOR the reasons aforesaid, both the aforesaid writ petitions are allowed and the impugned order dated 24. 1. 2004 contained in Annexure-1 issued by the opposite party and the order dated 8. 2. 2004 granting mining permit to the opposite party- is hereby quashed. ( 13 ) BEFORE parting with, we deprecate the practice and conduct of the district Authorities. We are avoiding to direct any enquiry in the matter and suitable action against the officer/officials concerned, as it would put them in peril. However, hence forth, they should be vigilant and follow the proper procedure strictly while granting permit, maintaining the records relating to grant of permit, applications and other necessary records. .