JUDGMENT Bharati Sapru, J.
1. Heard learned Counsel for the petitioner and learned Standing Counsel for the State. Learned Counsel for respondent No. 5 has not put in appearance.
2. The present petition has been filed seeking a writ of certiorari to quash the two orders 20.2.98 and 19.8.98 passed by respondent No. 2 & 1 respectively.
3. The admitted fact of the case are that an advertisement was issued by the concerned Department on 1.3.97 by which Khasra No. 302 having an area of 8 acres was advertised for mining. In pursuance of the said notification, the petitioner moved an application for grant of lease of Khasra No. 302, area 8 acres of a place by the name of Gora Machhiya in District Jhansi. The application of the petitioner was made for the plot of Khasra No. 302 having an area of 8 acres. It is the petitioner's contention that the petitioner was the first applicant to reach his application on 2.4.97. Thus, the petitioner states that under the provisions of Rule 9 of the U.P. Minor Mineral Concessions Rules 1963, he acquired preferential rights for the grant of lease over the other applicants whose application was received later. Other considerations were also taken into account arid it is also admitted to the State that lease was granted in favour of the petitioner on 31.8.87 by the respondent No. 3. This is contained in Annexure No. 9, page 88. Thereafter, the petitioners started excavating on the site.
4. Subsequently, the respondent No. 5, another applicant, who had also moved his application on 2.4.97 claimed that the lease should have been granted in his favour. He had applied for six acres of land. The respondent No. 5 moved an appeal before the appellate authority and an order was passed in appeal, by which the appellate authority by way of appellate order dated 20th February, 1998, bifurcated the lease and gave 4 acres each to the petitioner as well as to the respondent No. 5. The petitioner, being aggrieved by the appellate order, filed a revision under Rule 78 of the Rules aforesaid. The revisional or appellate order of the appellate authority and the revisional order dated 19.8.98, bifurcation of the lease was upheld.' From the perusal of the record of the case, it appears that an advertisement was made of plot No. 302 as a compact area of 8 acres and this being the case, the lease was settled on the petitioner by way of an order dated 31.8.97 as a compact area.
5. Learned Counsel for the petitioner has relied on decision rendered by the Andhra Pradesh High Court as reported in A.I.R. 1988 page 199 Dr. T.N and Gopal v. The state of A.P. Learned Counsel for the petitioner has argued that the lease was settled on him of the compact area, as he being the first applicant for the entire compact area has acquired the lease as per Rule 9 of the Rules and it has settled in his favour. Learned Counsel for the petitioner has also argued that once the lease has been settled in his favour as a compact area, it was not open to the appellate authority or revisional authority to divide the said compact area by bifurcating the lease into two parts. He has contended that, therefore, the order passed by the appellate authority as well as the revisional authority dividing the compact lease was arbitrary and without jurisdiction.
6. I have heard learned Standing Counsel also. It is not disputed fact that a compact lease was advertised by an advertisement, dated 1.3.97 and, subsequently, it was granted in favour of the petitioner in the same shape on 31.8.97.
7. Learned Standing Counsel has not been able to show anything to this Court that under the Act concerned or under the Rules, that the appellate authority or revisional authority has the jurisdiction while exercising revisional powers to bifurcate the original lease or to split the lease into bits and pieces or to modify the advertisement while exercising appellate or revisional jurisdiction.
8. The contention raised by the petitioner are, therefore well founded. Both the appellate authority and the revisional authority have indulged in exercising jurisdiction not vested in them and have acted in excess of jurisdiction.
9. While examining the matter in hand, if the appellate authority or revisional authority has come to the conclusion that the grant of mining lease was bad, then the old advertisement should have been cancelled and should have been peshly advertised again so that no arbitrariness was caused to anyone in the matter of fresh applications/ But while exercising the appellate and revisional jurisdiction under Rule 77 and 78, it was not open to the respondent authorities to divide the lease which had been advertised as compact areas of 8 acres.
10. For the reasons stated above contention of the petitioner's Counsel are accepted, the impugned order and the revisional order dated 20.2.96 and 19.8.98 are hereby set aside.
11. Lease was granted for a period of ten years. The State has not actively pursued the present petition and has allowed the petitioner to utilize the lease for a major portion of a period of ten years. Hence no useful purpose will be served in re-examining the matter any more, in view of the matter that respondent No. 5 has not appeared to oppose the present petition and it seems they have acquiesced in the matter. The matter has been heard in the revised list and learned Counsel for respondent No. 5 is not present although his name is shown in the cause list.
12. The petition is, therefore, allowed. No costs.