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Allahabad High Court · body

2012 DIGILAW 181 (ALL)

JUMMAN ALI v. STATE OF U. P.

2012-01-19

ASHOK PAL SINGH, VINEET SARAN

body2012
JUDGMENT By the Court.—For grant of mining lease of the area in question (being Khand A-4 sitauated in village Adhawal, District Fatehpur) a notification was issued by the District Magistrate/District Officer on 25.9.2006. In total seven applications were received which included that of the petitioner Jumman Ali and the respondent No. 5 Shailendra Singh. On examination of the applications, the petitioner as well as respondent No. 5 were issued notice on 15.11.2006 under Rule 6(2) of the U.P. Mines and Minerals Concessions Rules 1963 for removal of defects in their applications within one week. Then on 28.6.2007 a recommendation was made by the office of the District Officer recommending that respondent No. 5 Sri Shailendra Singh be granted the lease on his production of the character certificate issued by the District Magistrate and completing certain other formalities. On 7.3.2008 the State Government approved the application of the petitioner for grant of mining lease subject to the respondent No. 5 producing the character certificate. Pursuant thereto the District Magistrate vide his order dated 19.3.2008 accepted the application of the petitioner for grant of mining lease to the respondent No. 5 on his depositing 1/4th of the dead rent which came to Rs. 1,34,918/- as well as another sum of Rs. 1,34,918/- towards security i.e. total Rs. 2,69,836/- within a period of one week. In compliance of such direction the respondent No. 5 deposited the said amount on 25.3.2008. 2. After the grant of approval by the State Government in favour of respondent No. 5, the petitioner, whose application was not accepted, filed a writ petition No. 15949 of 2008 challenging said approval dated 7.3.2008. The said writ petition was dismissed as premature as no order for grant lease in favour of the respondent No. 5 had been passed by the District Magistrate. However, it was left open to the petitioner to file a fresh writ petition in case any order was passed by the District Magistrate for grant of lease in favour of the respondent No. 5. Now after the order was passed by the District Magistrate for grant of lease on 19.3.2008, the petitioner filed this writ petition with the prayer for quashing the order dated 7.3.2008 whereby an approval has been accorded by the State Government and also order dated 19.3.2008 of the District Magistrate directing for grant of lease in favour of the respondent No. 5. 3. 3. We have heard Sri Sabhajeet Nishad, learned counsel for the petitioner as well as learned Standing Counsel for the State respondent and Sri Ramesh Upadhyay, learned counsel for the respondent No. 5 and have perused the record. 4. Although, Sri Nishad, learned counsel for the petitioner has raised several grounds in the writ petition but emphasis has been laid by him on the issue of non submission of the requisite character certificate by the respondent No. 5. It is contended that since the respondent No. 5 had not filed the character certificate of the District Officer within the time granted by the District Officer under Rule 6(2) of the Rules of 1963, the application of the petitioner could not have been considered. 5. Undisputed facts are that on the application of the petitioner and the respondent No. 5 having been received by the District Officer on 26.10.2006, a notice was issued to the petitioner as well as respondent No. 5 on 15.11.2006 for removal of certain defects. It is also not disputed that by the said order the respondent No. 5 was required to furnish the character certificate within one week of the issuance of the said letter. It is also not disputed that the character certificate, which was furnished by the respondent No. 5 was issued by the Superintendent of Police and not by the District Officer. It is also not disputed that the application of the respondent No. 5 was considered and the approval was granted on 7.3.2008 by the State Government and order passed by the District Magistrate on 19.3.2008 for grant of mining lease in favour of the respondent No. 5 without the respondent No. 5 having filed the character certificate issued by the District Officer till such time. 6. In the light of the aforesaid facts, we are now to consider the provisions of the Rules of 1963. Rule 6 provides for fee and deposit of documents for grant of mining lease. Sub rule (1) of Rule 6 provides that every application for grant of mining lease shall be accompanied by, besides other fees and documents, a character certificate given by the District Officer of the District, where the applicant permanently resides. Rule 6 provides for fee and deposit of documents for grant of mining lease. Sub rule (1) of Rule 6 provides that every application for grant of mining lease shall be accompanied by, besides other fees and documents, a character certificate given by the District Officer of the District, where the applicant permanently resides. Subrule (2) of Rule 6 reads as under: “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 authorized by the State Government in this behalf, by fifteen days notice require the applicant to complete the application in all respects or, to deposit the fee or furnish the documents within such time as may be specified in the notice and if the applicant fails to do so within the specified time, such application shall not be considered.” From the aforesaid sub-rule (2), it is clear that if there is any discrepancy and any fees is not paid or any document not furnished alongwith the application, the said applicant may be given time by the District Officer to provide such documents within a specified time. It further provides that if the applicant fails to provide the document within such time as may be provided to him, such application shall not be considered. 7. In the present case, what we find is that even after the notice was given to the respondent No. 5 under Rule 6(2) of the Rules 1963 on 15.11.2006, the respondent No. 5 did not furnish the character certificate issued by the District Officer within one week time as had been provided in the said notice or even till the passing of the impugned orders. The sub-rule (2) of Rule 6 mandates that if the document is not furnished within the specified time, the application shall not be considered. In the present case the application of the respondent No. 5 had been considered despite the respondent No. 5 having not fulfilled the conditions of the notice issued to him under sub-rule (2). 8. Sri Ramesh Upadhyay, learned counsel for the respondent No. 5 has vehemently argued that the character certificate issued by the Superintendent of Police would be sufficient as the District Officer ultimately issues the character certificate only on the basis of the report of the Superintendent of Police. 8. Sri Ramesh Upadhyay, learned counsel for the respondent No. 5 has vehemently argued that the character certificate issued by the Superintendent of Police would be sufficient as the District Officer ultimately issues the character certificate only on the basis of the report of the Superintendent of Police. In support of his submission, he has placed reliance on the character certificate of the petitioner, which has been filed alongwith Annexure 2 to the writ petition, wherein it is mentioned that the said character certificate of the petitioner was issued by the District Magistrate merely on the report of the Superintendent of Police issued in his favour. 9. Be that as it may, since the law requires the character certificate should be that of the District Officer, it would not be possible or proper for this Court to read something more than what is specified in the Rule and accept the character certificate of some other authority than that of the District Officer for the purpose of grant of mining lease. 10. As such, for the above reasons, we are of the view that the respondent authorities had wrongly considered and proceeded with the application of the respondent No. 5 for grant of mining lease without the respondent No. 5 having fulfilled the terms of the notice dated 15.11.2006 requiring him to furnish the character certificate, which could only be meant to be that issued by the District Officer and not the Superintendent of Police or any other authority. 11. The writ petition thus deserves to be allowed and is accordingly allowed. The approval of the State Government granted on 7.3.2008 as well as the order of the District Magistrate dated 19.3.2008 directing for grant of mining lease to the respondent No. 5, are both quashed. Considering that none of the applications received in response to the notification dated 25.9.2006 were complete, we direct that the respondent authorities shall issue a fresh notification under Rule 72 of the Rules of 1963 for grant of mining lease of the area in question, as expeditiously as possible. 12. No order as to costs. ——————