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2010 Supreme(SC) 1544
SUPREME COURT OF INDIA
ALTAMAS KABIR, A.K. PATNAIK, JJ.
Kalpnath Singh – Appellant
Versus
Udai Nath – Respondent
Civil Appeal No. 6520 of 2010
Decided On : 11-08-2010
Advocate Appeared:
For the Appellants : D.K. Singh, Pradeep Shukla, T. Mahipal.
For the Respondents: Joydeep Mazumdar, Pinaky Addy, Chiraranjan Addey.
Headnote:
Constitution of India - Article 226 - Appeal against judgment and order - Financial resources for applicant – Evidence - District Magistrate Varanasi sent recommendations of Mine Supervisor Varanasi to State Government for grant of mining lease for excavation sand area in favor of appellant - State Government granted permission to District Magistrate to execute lease in favor of appellant for a period of years acres in village subject to completion of all formalities stipulated in amendment to Rules – Held, Court are of considered opinion that High Court was not right in taking view that State Government could not have granted mining lease in favor of appellant when appellant had not furnished No Objection Certificate along with application or after notice was issued by District Magistrate to him to furnish same – Sub Rule provides that if application for mining lease is not complete such application shall not be considered - When appellant filed his application there was no provision in Rule requiring person to furnish along with his application No Objection Certificate - It was only thereafter notification was issued by Government introducing Rule which requires that in case area applied for has an annual lease amount or dead rent as case may be rupees two or more then applicant shall also furnish No Objection Certificate from authorities mentioned therein - Since appellant was not required to furnish No Objection Certificate when he submitted his application on his application could not be to be not complete and nothing prohibited District Magistrate or State Government to consider application of appellant for mining lease - Respondent in his reply however has relied on in Chapter of Rules which provides that no person shall be allowed to bid at auction or take part in tender proceeding for lease if he has not furnished No Objection Certificate from authorities mentioned therein - This provision as court have noticed applies to an auction or tender proceeding for lease Chapter of Rules and does not apply to lease granted Chapter of Rules - There was therefore nothing in Rules which prohibited State Government to grant permission District Magistrate to execute lease in favor of appellant subject to his furnishing - Appeal Allowed
JUDGMENT :
A.K. PATNAIK, J.
1. Leave granted.
2. This is an appeal against the judgment and order dated 21.5.2008 passed by the Allahabad High Court in Civil Miscellaneous Writ Petition No. 49158 of 2007.
3. The facts very briefly are that on 4.1.2007, the District Magistrate, Varanasi, issued a public notice inviting applications from the general public for settling six vacant sand mining areas of District Varanasi under the Uttar Pradesh Minor Minerals (Concession) Rules, 1963 (for short “the Rules”). On 5.2.2007 the appellant and respondent No. 1 and two others applied for one of the six mining areas, namely, Mokalpur, Khand-I, Plot No. 349 measuring about 30 acres and furnished the documents mentioned in the public notice. By a notification dated 15.2.2007, Rules 6 (1)(g) was introduced in the Rules requiring that in case the area applied for is having annual lease amount or dead rent, as the case may be, of rupees two lacs or more, then the applicant shall also furnish “No Objection Certificate” from the authorities mentioned therein. The Collector, Varanasi, issued a notice dated 2.4.2007 to all the applicants including the appellant and the respondent No. 1 to submit No Objection Certificate by 12.5.2007. While the respondent No. 1 submitted “No Objection Certificate” beyond the time stipulated in the notice of the District Magistrate, the appellant did not submit the “No Objection Certificate.” Thereafter, the Mine Supervisor, Varanasi, submitted a verification report on the merits of the four applicants and in this verification report inter-alia stated that all the four applications were complete and have been received on the same date and therefore their comparative preference will have to be determined under Rule 9 (2) (e) of the Rules and on such determination the appellant, who has a better financial status than the respondent No. 1 and who also has experience of mining work and no other candidate had such experience in mining work, had to be given preference for grant of said mining lease. On 3.8.2007 the District Magistrate, Varanasi, sent the recommendations of the Mine Supervisor, Varanasi, to the State Government for grant of the mining lease for excavation of the sand area in favour of the appellant. On 21.9.2007, the State Government granted permission to the District Magistrate to execute lease in favour of the appellant for a period of 3 years for 30 acres in village Mokalpur, Khand-I, Plot No. 349 subject to completion of all formalities stipulated in the amendment to the Rules.
4. Aggrieved, the respondent No. 1 filed Writ Petition No. 49158 of 2007 under Article 226 of the Constitution of India in the Allahabad High Court and contended inter-alia that he belongs to the Nishad community, which is a Socially Educationally Backward Class, and under Rule 9 (2) (e) of the Rules was entitled to preference in respect of mining lease of sand exclusively found in the river bed and that the appellant did not submit “No Objection Certificate” in accordance with the amended Rule 6 (1) (g) of the Rules by 12.5.2007 as stipulated in the notice dated 2.4.2007 of the District Magistrate and therefore his application was incomplete. The High Court accepted the contentions of the respondent No. 1 and quashed the order dated 21.9.2007 of the State Government granting permission as well as the recommendation dated 3.8.2007 of the District Magistrate for grant of mining lease of the area in favour of the appellant and directed the District Magistrate, Varanasi to grant the mining lease of the area in favour of respondent No. 1 as per his entitlement under Rule 9 (2) (e) of the Rules.
5. Since the main dispute between the parties in this case is with regard to interpretation of Rule 9 of the Rules, we quote Rule 9 of the Rules herein-below:
“9. Preferential right of certain persons - (1) Where two or more persons have applied for a mining lease in respect of the same land the applicant whose application was received earlier shall
