ORDER Om Prakash, J.
1. The short question for consideration in this writ petition is whether impugned notice dated 17-10-1994 (Annexure '6' to the writ petition) inviting applications for granting lease in respect of the areas as mentioned therein, is valid.
2. The facts, briefly, stated are that the U.P. Minor Minerals (Concession) Rules, 1963 (the Rules, for short) were amended by the U.P. Minor Mineral (Concession) 20th Amendment Rules. 1994 inserting Rule 9A giving preference to socially and educationally backward classes of citizens in granting lease for excavation of sand and morum from the river beds. After the aforesaid 20th Amendment in the Rules in respect of which notification was issued on 27-8-1994, a G.O. dated 22-9-1994 (Annexure '3' to the petition) was issued to all the District Magistrates by the Government directing them to grant lease onwards only under the amended rules. Thereafter, District Magistrate, Hamirpur, respondsent No. I issued a notice dated 24-9-1994 (Annexure '4' to the petition) inviting applications for excavating sand and morum in respect of the areas in the bed of rivers, mentioned therein. Purusant to the said notice, the petitioner who belongs to Nishad caste sent an application dated 1-10-1994 (Annexure '5' to the petition). When 20th Amendment was made by notification dated 27-8-1994, a declaration was also made under Rule 24 of the Rules denotifying the areas which were earlier notified under Rule 23 of the Rules. The notice dated 24-9-1994 Annexure '4' to the petition) is said to have been issued in respect of the areas for which the declaration dated 27-8-1994 was made under Rule 24 of the Rules.
3. The area of different river beds as mentioned in the said notice, ranges from 20 acres to 3208 acres.
4. Some other persons filed writ petition No. 32206 of 1994 challenging the notice dated 24-9-1994 on the ground that as provided by new Rules 72 inserted in the Rules, the notice was not of 30 days. In that writ petition, this Court granted an interim order stating that until further orders, applications invited pursuant to notice 24-9-1994, would not be finalised, but it would be open to the respondents to issue a fresh notice giving 30 days' time as envisaged by Rule 72 for inviting applications to grant a lease. Since finalistion of applications received pursuant to the notice dated 24-9-1994 was stayed, respondent No. 1 issued another notice dated 17-10-1994 giving 30 days time for inviting applications for grant of lease (See Annexure '6' to the writ petition). The areas mentioned in the notice dated 24-9-1994 was reproduced verbatim in the notice dated 17-9-1994. The only differnce was that earlier notice dated 24-9-1994 did not afford 30 days time to prospective applicants to make applications, but the subsequent notice dated 17-10-1994 permitted 30 days clear time to the prospective applicants to make applications. Since so many formalities were to be completed while making applications and since the petitioner already made an application pursuant to notice dated 24-9-1994, he made an application to the respondents stating that his application dated 1-10-1994 submitted pursuant to the notice dated 24-9-1994, be treated to have been given pursuant to subsequent notice dated 17-10-1994, in case notice dated 24-9-1994 is found to be illegal.
5. In para 17 of the writ petition, it is averred that unless the area for which applications are invited is identified or demarcated in accordance with the Rules 10 and 11 of the Rules, the applications made by the applicants would be rendered defective and absence of identification/demarcation of the land in accordance with the Rules 10 and 11 of the Rules would seriously jeopardise the interest of the petitioner and other applicants.
6. In para 19 of the writ petition, it is pleaded that notice dated 17-10-1994 does not refer to plot numbers, but the area of entire Tehsil in one lump and, therefore, it is not only difficult but will nigh impossible for any persons who intends to make an application, to identify the plots before making an application. It is averred that by issuing notice dated 17-10-1994 which does not specify plots etc., the respondents are forcing the petitioner to resort to a defective procedure viz. to make an application without specifying the area and, thereby making his application liable to be rejected for that reason itself. In para 21, it is averred that the respondents have resorted to such a defective procedure with the sinister motive to eliminate the petitionen and other persons, belonging to socially and educationally backward classes.
7. In paras 27 and 28 of the writ petition, it is clearly pleaded that by inviting applications for the areas exceeding the limit as mentioned in Rule 10, the respondents are acting contrary to the objective, sought to be achieved by the 20th Amendment made in the Rules. It is averred that immediately upon acceptance of the application for grant of lease, one has to deposit 25% of the total amount of lease immediately and that if an application is accepted for an area far exceeding the limit mentioned in Rule 10, when one would be required to deposit far more amount which a person belonging to socially and educationally backward class, will not be able to deposit.
8. Respondent No. 2 filed counter-affidavit on his own behalf and on behalf of respondent No. 1 stating excavation of sand and murum is usually done by (he inhibitants of rever bank who normally being to socially and educationally backward class and who are, infact, enagaged in carrying on occupation of excavation of sand and morum; that auction lease system which was introduced from the year 1990 in Chapter IV of the Rules did not benefit such class of persons and that gave rise to and more litigation adversely affecting the mineral development and Government revenue and therefore, the State Government deemed it proper to amend the rules and to bring out uniformity, 20th Amemdment was made in the Rules with an avowed object that benefit from excavcation of sand and morum from the river bed may (sic) to the persons belonging to socially and educationally backward classes, who are normally engaged in that occupation and not to the intermediaries viz. auction bidder, who can afford the bid for any amount and any area.
9. In para 18 of the counter-affidavit it is averred that the "provisions of Rule 10 and f 1 will apply at the time of grant of mining lease. These provisions are not applicable at the time of inviting the application of mining lease."
10. In para 30 of the counter-affidavit it is averred that length and width of the area as envisaged by Rule 11 will also be considered at the time the lease is settled and not at the time of inviting applications
11. In para 31 of the counter-affidavit it is averred that the notice dated 24-9-1994 was issued by the District Magistrate in accordance with the direction/order of the State Government,
12. In para 36 of the counter-affidavit it is reiterated that "the provisions of Rule 10 will be applicable at the time of grant of mining lease and not at the time of filing of the application. "It is further stated in the said paragraph that" at the time of filing of the application, it is the duty of the applicant to identify the area for which he is interested to apply. If any information is required then he can contact the office of the District Magistrate........"
13. In para 7 of the supplementary counter-affidavit, it is stated that in the notice dated 17-10-1994 only those areas were mentioend in respect of which declaration dated 27-8-1994 was made. In para 8 of the supplementary counter-affidavit respondents stated that in the notice dated 17-10-1994, no separale new blocks (khand) were made and that the blocks in the said notice are just the same which were earlier notified in chapter IV. In the same paragraph it is further pleaded, "Every applicant is free to apply any area in any shape and size according to his own choice. As such the point of shape and size of the area in the notice raised at this stage appears to be premature because while granting a lease the provisions of Rules, 1963 shall be followed by the District Officer."
14. We have reproduced the pleadings of the parties extensively in order to have a full and clear idea of the case of the parties.
15. The pith and substance of the pleadings of the petitioner is that areas mentioned in the notice dated 17-10-1994 which is nothing but a verbatim copy of the earlier notice dated 24-9-1994, are not in accordance with the Rules and, therefore, it is not possible for the petitoner or any other person to make a proper application for grant of a lease under Chapter II of the Rules and any application made pursuant to such notice on the basis of the areas mentioned in the said notice which are not specified as per the Rules, will be defective and ultimately, liable to be rejected for that reason.
16. Upon persual of the impugned notice dated 17-10-1994 (Annexure 6 to the writ petition), it appears that applications were invited in respect of 3208 acres falling in the bed of the two rivers namely, Betwa and Yamuna situate in Tehsil Himirpur. Besides this, the applications were invited for the following areas falling in several blocks, situate in the bed of Betwa river in Tehsil Raath:
Block Area Block-1 630 Acres Block-2 1482 Acres Block-3 1266 Acres Block -4, 5 and 6 778 Acres and for 2420 acres situate in other villages for which no block is specified.
Applications are further invited in respect of 4700 acres falling in the bed of river Dhawan in Tehsil Raath. No block is specified for this area as well. In addition to these areas, the applications are invited for other areas as well.
17. The short question for consideration is whether prospective lessees are required to apply for the aforesaid area in entirety or a part thereof. It is not the case of the respondents that power was exercised by the District Officer under the proviso to Rule 10 to increase the area from 30 acres to the extent of the areas above-mentioned. Under the proviso to Rule 10, the State Government is empowered to permit any person to acquire one or more mining leases covering an area in excess of the maximum limit of 30 acres. The case of the respondent is that the State Government delegated this power to the Districat Officer. The power may have been delegated to the District Officer and he may be competent in increase the areas from the limit of 30 acres, but It is not significant inasmuch as, no case has been set up by the respondents that the District Officer, in fact, exercised this power and increased the limit of 30 acres. So the question, whether prospective lessees are required to apply for the entire area as mentioned in the notice dated 17-10-1994 or a part thereof, is to be considered on the basis of the pleadings as they exist, in absence of the case of the respondent that the District Officer ever increased the limit of 30 acres to the extent the areas arc specified in the impugned notice.
18. Sri Rakesh Dwivedi learned Additional Advocate General, rather, frankly submitted before us that leases eventually would be granted for smalller areas than the areas specified in the impunged notice dated 17-10-1994. It follows from his submission that the District Officer did not exercise power delegated to him to increase the limit of 30 acres.
19. The case of the respondents as set up in paragraph 18 and other paragrpahs of the counter-affidavit, is that Rule 10 will apply at the time of grant of mining lease and that this provision is not applicable at the time of inviting applications for mining lease. In para 36 of the counter-affidavit, the stand taken by the respondents is rather strange, inasmuch as, it is averred by them that at the time of filing of the application, it is the duty of the applicant to identify the area for which he is interested to apply. How can an applicant identify the area on his own? From the notice dated 17-10-1994 it is amply clear that even block is not mentioned therein every share, but the areas far in excess of the limit of 30 acreas, have been mentioned. How can an applicant choose the areas out of the areas mentioned in the impunged notice? We wanted to understand the mechanism being followed by the respondents at the stage of scrutiny of the applications made by prospective lessees pursuant to the notices which simply, specified much larger areas even without specifying blocks every where and no satisfactory explanation has been given at [he time of hearing as to who can a prospective lessee apply in respect of the area for which he intended to take lease. The contention of the petitioner is that as he belonging to socially and educationally backward class, is not capable to apply for the entire area of Tehsil Hamirpur as specified in the impunged notice and that he could apply for the area for which the respondents inteded to grant lease if that had been properly specified in the impunged notice. From the pleadings of the respondents and the arguments of Shri Dwivedi learned Additional Advocate General, it is clear that the respondents did not intend to grant lease for the areas in entirciv which have been specified in the impunged notice. Sri Dwivedi argued that the notification made under Rule 24 states that the details of areas having become available for lease under Chapter II could be gathered from the notice board put up in the office of the District Officer or from the registers, maintained in from MM-5 under Rule 25. Such details are of the areas which are available for lease and not of the areas for which applications are invited by the respondents by impunged notice to grant lease. He then argued that areas are well identified, inasmuch as, blocks are mentioned in the impunged notice and that with the help of the blocks, the applicants could have gone to the spot and then they could have chosen the plots/Khasra Nos. for which they intended to take lease. Is it legally possible? Rule 9(1) clearly slates that where two or more persons applied for mining least in respect of the same land the applicant whose application was received earlier, shall have a preferential right for the grant of lease over the applicant whose application was received later. If the area for which a lease is to be granted by the respondents is not well specified in the notice issued for inviting applications for grant of lease, then the question is how can the two or more persons apply for the same area and if that is not done how can priority be determined amongst them. The priority can be determined only when the applications are made by two or more persons precisely for one and the same area and applications for the identical areas are possible only when the lots for which leases would be granted are duly specifid in the notice issued for inviting applications. The impugned notice neither specifies the area nor gives guidelines to the prospective lessees as to how to ascertain the area in respect of which the applications are invited and for which leases will be granted by the respondents.
20. Application for granting lease Is required to be made in Form MM-1 as prescribed in third Schedule, appended to the Rules. Column 5 and 6 of the said Form enjoins upon an applicant to disclose Khasra number and the area for which he wants to apply. This is possible only when Khasra numbers and precise area thereof area specified in the noiice. The Impunged notice simply mentions the areas and not the Khasra number and the area thereof.
21. It may be said that the details of Khasra numbers and the area thereof may be too cumbersome to be mentioned in the notice and, therefore, it is convenient to specify the blocks only and further details may be gathered either in the office of the District Officer or at a particular place. No case has been set up by the respondents that the details of Khasra number and areas thereof were omitted from being mentioned in the notice because they could not be conveniently reproduced in the notice. Rather, the case set up by the respondents is that no area need be specified as per Rule 10. The case of the respondent is that "it is the duty of the applicant to identify the area for which he is interested to apply. "It may be the duty of the applicant to identify the area but the question is whether the respondents have taken any steps to enable a prospective lessee to identify the area. Except the details furnished in the Impunged notice, nothing else has been brought to our notice by the respondents to enable the applicants to identify the area.
22. The notice as it stands, will leave every appl.xant guessing as to for which area he is required to apply. This being the state of affairs, we fail to understand as to how the priority will be determined under Rule 9. Unless the area in respect of which a lease is to be granted, is well specified in the notie no one can make a proper application and determination of priority under Rule 9 in that situation is not at all possible. Unless two or more persons make applications for the areas well specified and identified by the respondents either in the notice itself or the details regarding identity of which are furnished otherwise for which applications are invited, priority under Rule 9 cannot be legally determined.
23. On the facts and circumstances of the case, we are of the considered view that the impunged notice (Annexure-6 to the writ petition) is vague, inasmuch as, it does not specify the area nor does it give guidelines to the applicants to collect further details in regard to the ared for which the applications are invited.
24. We have already pointed out that after having made a declaration dated 27-8-1994 under Rule 24, the respondents did not do any further exercise, but they issued the impunged notice specifying exactly the same areas which were earlier specified for the purposes of Chapter IV. The scheme of Chapter IV and the new Scheme as envisaged by the amended Rules are quite different. The focus of the twentieth amendment is on the persons belonging to socially and educationally backward classes. As stated in the counter-affidavit itseif, the State Government wanted to give more and more benefits to the persons who are traditionally engaged in the excavation of sand and Moram and that is why Rule 9A has been inserted in the Rules. Such objective can be achieved only lots as contemplated by Rule 10 are made and published by the respondents. Because, if area as big as 3208 acres as specified in the Tehsil Hamirpur in the impugned notice, is notified, then the people belonging to the classes entitled to preferential treatment, would be precluded from making applications in as much as, they will not be able to deposit security equal to 25% of annual dead rent or annual lease amount of the leased area as required by amended Rule 13 and that would be subversive to the scheme and policy of the Government.
25. It is regreted that the respondents chose to contest such a wholly indefensible case. By order dated 21-11-1994, we stayed further proceedings pursuant to the impunged notice dated 17-10-1994 and gave opportunity to the respondents to issue fresh notice specifying the area in respect of which they intended to grant lease. Though it was argued before us that leases were not intended to be granted in respect of the areas specified in the impunged notice, yet the respondents took no steps for issuing a fresh notice curing the defect and chose to pursue the litigaion relentlessly. It is a classic example that bureaucrates do not seriously implement the loudable statutory schemes of the Government. The best course for the respondents was to issue a fresh notice immediately after the interim order dated 11-11-1994, specifying the area in that notice and if incorporation of cumbersome details of Khasra numbers and the area thereof in the notice was not possible, then some other guidelines should have been given in the notice to enable the applicants to collect details of the identity of the area for which they were required to apply. Without taking such recourse, the respondents chose to contest the writ petition with wholly untenable pleas.
26. In the result, the petition succeeds and is allowed. The impunged notice dated 17-10-1994 (Annexure 6 to the writ petition) is quashed and the respondents are directed to issue a fresh notice specifying the areas in respect of which leases are intended to be granted by them.
27. Petition allowed.