The central legal point established in the judgment is the requirement for the appellate authority to consider the Government Notification and the need for State Government approval for the grant of mining lease for an area less than 5 hectares.

1. 1. Challenge has been made by the petitioner by this petition under Article 226 of the Constitution to the orders annexure 7 passed by Director, Mines & Geology Department, Rajasthan, Udaipur dated 28.8.95 and Annexure 8 dated 29.3.97 passed by Dy. Secreary, Mines Department, Government of Rajasthan, Jaipur. The Director Mines and Geology Department, Udaipur has cancelled the auction made by the Mining Engineer Karouli of grant of patta for mineral sand stone in favour of the petitioner under the order Annexure 7. The petitioner filed appeal against this order before the State Government which came to be rejected vide order dated 29.3.97. Learned counsel for the petitioner contended that the appellate authority accepted that mining lease can be granted for the plot. of size of less than 5 hectares with the permission of the Government and the reference has been made to the letter of Government dated 12.2.95. It is contended that if the size of the plot for which mining lease was granted to the petitioner is taken to be less than 5 hectares, the appellate authority instead of rejecting the appeal should have sent for approval or sanction of the Government. As per Government notification dated 26th Feb. 1998, it is contended that the mining lease for mineral sand stone can be granted for the plot of area of less than 5 hectares. Learned counsel for the respondent on the other hand supported the orders passed by both he authorities.

2. I have given my thoughtful consideration to the rival submissions of the learned counsel for the parties. The petitioner has not produced the copy of notification dated 26th February, 1996 for consideration of the appellate authority. This is the fault of the petitioner. If notification was in favour of the petitioner it should have been produced for the perusal of the appellate authority. However, it is a Government Notification and can be permitted to be produced in these proceedings. The question does fall for consideration is whether court has to consider this matter at this stage or the matter is to be remanded to appellate authority to give the decision afresh in appeal of the petitioner after considering this notification. In the facts of this case, I am of the opinion that the matter is to be remanded back for the consideration of first appellate authority to decide if afresh. There is yet another reason for which this matter is to be remanded back to the appellate authority. The appellate authority has made reference to the Government letter and accepted the position that the mining lease for the area less than 5 hectares can be granted with the approval of the Government. In view of this Government letter, the appellate authority instead of rejecting the appeal should have sent the matter for the approval of the State Government. In case where State Government approved the matter of grant of mining lease in favour of the petitioner for the area less than 5 hectares there would not have been any difficulty for the petitioner. If this exercise would have been undertaken, no prejudice would have been caused to the petitioner.

3. In the result, this petition succeeds and the same is allowed in part and the order of Deputy Secretary to Government. Mines (Gr.2) Department, Rajasthan, Jaipur passed in appeal No. P.15(220) Mines/Group-II/95 dated 29.3.97 is quashed and set aside and the matter is remanded back to that Officer to decide the appeal of the petitioner after considering Government Notification dated 26th February, 1996, the copy of which is to be produced by the petitioner and pass an order in the light of the observations made in this judgment. No order as to costs.Petition allowed in part-case remanded.

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