JUDGMENT 1. - Instant petition has been filed by the petitioner seeking mandamus against the respondents to decide the application filed by the petitioner in accordance with Section 11(2) of Mines & Minerals (Development & Regulation) Act,1957 ("Act, 1957") and at the same time it has also been prayed that respondents may be restrained from invoking Section 11(5) of the Act,1957. 2. It has been alleged in the instant petition that application for mineral silica sand for area measuring 187 hectares near village Shekhpura, Tehsil Sapotara, District Karauli was filed by the petitioner on 18.09.2008 to the Mining Engineer and certain deficiencies being pointed out on 17.02.2009 which the petitioner meted out and the revised map of 29.7185 hectares was submitted. 3. It has been further alleged that respondent-4 also filed two applications for ML No.17/09 & 18/09 for mineral silica sand for area measuring 45 hectares and 33.75 hectares and the area applied for by the petitioner was overlapping the area of the respondent-4 and certain departmental correspondence took place and a notice came to be issued to the petitioner & others on 06.01.2010 U/s 11(3) of the Act, 1957 and in the said notice reference has been made regarding memorandum of understanding which has been signed by the Government and respondent-4 wherein a request has been made to grant mining lease while exercising power U/s 11(5) of the Act,1957 and the petitioner pursuant to the notice dated 06.01.2010 submitted reply and apprehending that respondent might grant mining lease in favour of respondent-4 while invoking Section 11(5) of the Act and that may cause prejudice and that is the basic cause to approach this Court by filing instant petition. 4. The main thrust of submission of counsel for petitioner is that Section 11(5) is exception to Section 11(2) of the Act which can be exercised by the authority in certain contingencies stipulated under the statute and those special reasons are to be recorded while invoking Section 11(5) of the Act and has to be disclosed while the mining lease being granted to the applicant and the State authority has made up its mind to invoke Section 11(5) of the Act for granting mining lease to the respondent-4 but admittedly no order for grant of mining lease has been passed by the State Government either U/s 11(2) or Section 11(5) of the Act so far. 5. 5. Counsel further submits that U/s 11(2) of the Act,1957 the area which was notified in the official gazette for grant of reconnaissance permit or prospecting licence or mining lease as the case may be and if there being two or more applicants, it has to be allotted on first come first serve basis and that is the principle which the authority is under obligation to follow and Section 11(5) certainly being an exception to sub-section (2) that has to be exercised sparingly unless there are cogent & special reasons available for the respondent on record and if that is being exercised as a matter of course that will be nothing but a clear abuse of the power vested with the authority. 6. Mr. Ashok Gaur, Sr. Adv., assisted by Achintya Kaushik, while replying on behalf of respondent-4 has raised preliminary objection that as on today when the matter is being heard by this Court no adverse order has been passed and is still pending consideration with the state authority regarding grant of mining lease and the applications furnished by the applicants is yet to be examined for allotment U/s 11(2) or 11(5) of the Act,1957 and further submits that under the Rajasthan Industrial & Investment Promotion Policy,2010 for mining & mineral processing, it has been specifically noted down in para 7.3.3 which discloses the criteria laid down for allocation of mining lease to applicants on value addition basis U/s 11(5) of the Act. 7. Counsel has further brought to the notice of this Court that under the National mineral policy, 2008 certain guidelines have been issued and para 3.3 thereof regulates mineral concession of all types and norms have been laid down under Rajasthan Mineral Policy,2011 and to be more specific para 12 thereof provides for incentives for mineral based industries and certain guidelines under the mineral policy of the Central Government/State Government under which powers could be exercised U/s 11(5) of the Act. 8. In the instant case, applications have been submitted by the applicants for grant of mining lease but matter is still sub-judice with the state authorities and it is yet to be examined and the instant petition is wholly premature and in support of submissions placed reliance upon the judgment of the coordinate bench of this Court in M/s. Binani Zinc Ltd. & Anr. v. State of Raj. & Anr. v. State of Raj. & Anr. (1996(3) WLC (Raj.) Page 203 and submits that if mining lease being granted to any of the applicant by the competent authority that is always revisionable U/r 54 of Mineral Concession Rules,1960 and once the statutory remedy has been provided this Court would not like to exercise its equitable jurisdiction U/Art.226 of the Constitution. 9. Reply to the writ petition has been filed by the State of Rajasthan and it has been averred that no decision has so far been taken by the state authorities for grant of mining lease and if the State authority exercises power U/s 11(5) of the Act,1957 it is always expected that guidelines laid down under the state policies be adhered assigning special reasons and that is open for judicial scrutiny. 10. This Court finds substance in what has been urged by counsel for respondent that the matter is sub-judice and no order has so far been passed by the authorities for grant of mining lease which may adversely affect the right of the petitioner and apart from it against the grant of mining lease remedy has been provided under the Rules of 1960 and in these facts & circumstances there appears no justification for this Court to exercise its equitable jurisdiction U/Art.226 of the Constitution and the writ petition at this stage is premature. 11. Consequently, the writ petition is devoid of merit and accordingly dismissed. However, order if any being passed by the state authorities for grant of mining lease, the petitioner, if aggrieved, will be at liberty to take proper recourse available to him under the law. No cost.Petition dismissed. *******