Hon'ble Shyam Shankar Tiwari,J.
1. Heard Sri Dev Brat Mukherjee, learned counsel for the petitioner and Sri Vishnu Pratap,learned Standing Counsel.
2. Counter Affidavit and Rejoinder Affidavit have been exchanged between the parties. Supplementary Affidavit and Supplementary Counter Affidavit has also been filed.
3. Brief facts of the case is that District Officer issued notice dated 22.4.2001 was issued under Rule 72 of U.P. Minor Mineral Concession Rule 1963 inviting applications for grant of mining lease under Chapter(2) of the Rules with regard to the several plots situate in different villages. One of the plots which was included in the notice was plot no.1251. In plot no.1251 there were two parts, first part(Khand) 2 to 6 of five acres each and second part- Khand 7 of 7.5 acres. Petitioner made an application for grant of lease of plot no.1251 of 30 acres. The applications remained pending and a recommendation was also made in favour of the petitioner for grant of 20 acres on lease as indicated in the map. The notice dated 22.4.2001 mentioned that application shall be received within seven days from 21.5.2001. An order dated 14.2.2007 was communicated to the petitioner informing that his application for grant of mining lease has been rejected. The petitioner has filed the present writ petition praying for following reliefs: (I) To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 14.2.2007 passed by(respondent no.3) and the order of Distt. Magistrate Dt.3.2.2007, if any, after summoning the 2 record.
(ii) To issue a writ, order, or direction in the nature of mandamus directing the respondent to grant the Mining Lease of Plot No. 1251 of Vill. Kohdar, the. Meja, District Allahabad, measuring area about 20 acres to petitioner, as per recommendation made by the Respondent No.3.
(iii) To issue any other writ, Order or direction and this Hon'ble Court may deem fit and proper under the circumstances of the case.
(iv) To award costs of the Writ petition to the petitioner against the respondents.
4. Sri D.B. Mukherjee, learned counsel for the petitioner in support of the writ petition raised the following submissions: (1) There were more than one application in response to the notice dated 22.4.2001, hence the order of District Officer that there was single application of the petitioner , is incorrect. He submits that apart from the application of the petitioner, one application was submitted by Manoj Kumar Singh with regard to five acres of area of plot no.1251. There was another application of Smt.Firoj Begum of plot no.1251 and another application of Sri Ashfaq for same plot no.1251. He submits that there being thus four applications with regard to plot no.1251, the reasons given for rejection of the application is incorrect. (2) The District Officer in the impugned Order has taken an incorrect view that in response to the notice dated 22.4.2001 only one application was received and since no notice was issued for extending the period for receiving the applications by one week as required by Rule 72(2) the application is liable to be rejected.
3 (3) The respondent cannot be allowed to take the benefit in not extending the period of one week for receiving the application and no benefit can be taken by the District Officer of the aforesaid fact. Reliance has been placed on the judgements of Apex Court in 2007(11) Supreme Court Cases 447 Kusheshwar Prasad Singh Vs. State of Bihar and others, 1996(4) Supreme Court Cases 127 Union of India and others Vs. Major General Madan Lal Yadav and AIR 1961 Supreme Court 1353, Mrutunjay Pani and another Vs. Narmada Bala Sasmal and another.
5. Sri Vishnu Pratap, learned counsel for the respondent refuting the submissions of learned counsel for the petitioner contended that in response to the notice dated 22.4.2001 the application submitted by the petitioner only mention the area of 30 acres and no Khand was mentioned in the application. He submits that according to Clause(6) of notice, applicant has to apply only against one Khand. He submits that application of Manoj Kumar Singh which was against the same notice was for an area of of 5 acres 1251 and even if it is accepted the said application was for the same area the situation does not improve for the petitioner. The application of Smt.Firoj Begum and Ashfaq were against the different notice and were not in response to the notice dated 22.4.2001,hence they were not relevant. He submits that under Rule 72 of the Rules when there are less than three applications, the District Officer is obliged to issue a fresh notice in case he decide not to extend the period of seven days. He submits that the requirement of Rule 72(2) of the Rules for extension of further period of one week is "directory", Where as the requirement of issuing a fresh notice is "mandatory". He submits that District Officer did not commit any error in rejecting the application. The reliance has been placed by learned Standing Counsel on the judgement 2008(1) Supreme 756 Smt.Bachahan Devi & another Vs. Nagar Nigam,Gorakhpur & another.
6. We have heard learned counsel for the parties and perused the record.
7. The submissions made by learned counsel for the parties hinges on 4 the interpretation of Rule 72(ii) of the U.P. Minor Mineral(Concession) Rules 1963. It is useful to quote the said Rule to the following affect: " The applications for grant of mining lease sub-rule(1) shall be received within seven working days from the date specified in the notice referred to in the said sub-rule. If, however, the number of applications received fro any area is less than three, the District Officer may further extend the period for seven more working days and if even thereafter, the number of applications remains less than three, the District Officer shall notify the availability of the area afresh in accordance with the said subrule."
8. Rule 72(2) provide that application for grant of mining lease under sub Rule(i) of Rule 72 that if the numbers of applications received for any area is less than 3, the District Officer may further extend the period for seven more working days and if even thereafter also the numbers of applications remains less than 3, the District Officer shall notify the availability of the area afresh in accordance with rule. From the facts which emerge from the pleadings of the writ petition, it is clear that notice dated 22.4.2001 issued by the District Officer has notified the availability of the area and application has to be received for seven days w.e.f.21.5.2001and no extension for further period of seven days by the District Officer was granted, which is not in dispute.
9. The first submission pressed by learned counsel for the petitioner is that there were four applications with regard to plot no.1251 the rejection of application on the ground that there is a single application, is erroneous. The petitioner had brought on record the notice dated 22.4.2001 Annexure-2 to the writ petition. The copy of the application submitted by the petitioner as Annexure-2-A and the copy of the recommendation submitted with regard to the application of Manoj Kumar Singh as Annexure-6. A report of Mines Inspector on the application of Smt.Firoj Begum and Ashfaq which is 5 Annexure-5 to the writ petition. According to the notice dated 22.4.2001 as mentioned in paragraph-6 one applicant is required to apply only for one Khand. The details of plot no.1251 as contained in the notice is as follows: dz0la 0 xzke dk uke rglhy Hkw0la0 [k.Mksa dh la0 {ks=Qy 1- dksgM+kj estk 1255 1 5 ,dM+ 1251 2 ls 6 rd 5 ,dM+ izR;sd 1251 7 7-5 ,dM+ 2- fiijkao estk 584 1 o 2 5 ,dM+ izR;sd 3- dsoyiqj estk 01 [email protected] 3 ,dM+ 4- estk [kkl estk 1129 7 5 ,dM+ 5- eaMjk estk 637 3 2-50 ,dM+ 6- /kko dksjkao 839d 2 o 4 ls 7 rd 5 ,dM+ izR;sd 7- iFFkjrky dksjkao 241 1 4 ,dM+ 8- c<-okjhdyk dksjkoa 658 1 ls 5 rd 5 ,dM+ izR;sd 9- dksgfM+;k ckjk 6 ds&6 5 ,dM+ 10- m 41 2 7 ,dM+ 42 3 5-50 ,dM+ 34 4 6 ,dM+ 45 5 4 ,dM+ 11- xht ckjk 407 4 4 ,dM+ 12- iwjs cStukFk ckjk 01 1 5 ,dM+ 1168 2 5 ,dM 167] 170 3 5 ,dM+ 172 4 5 ,dM+ 173] 174] 180 5 5 ,dM+ 180 o 176 13- vloka ckjk 522 1 3 ,dM+ 14- lySb;k ifu;kjh ckjk 04 1 o 2 5 ,dM+ izR;sd Para 6 of the notice is also relevant to be quoted as under: ** ¼6½ ,d vkosnd dks ,d gh [k.M fey ldrk gSA blds fy, vkosnd vkosnu i= 6 esa ,d gh [k.M ds fy, vkosnu djsxkA ,d O;fDr dks ,d gh [kuu iVVk 'kklukns'k fnukad 30-12-2000 ds vuqlkj Lohd`r fd;k tk;sxk**
10. The application filed by the petitioner has been brought as Annexure-2A to the writ petition which mentioned 30 acres area. The copy of the application which was submitted by the petitioner has also been filed on behalf of respondent along with Counter Affidavit as Annexure-1. In the application which has been filed by the State, there was no mention of Khands 3,4,5 and 6 which finds mentioned in the photo copy of the application filed by the petitioner. The petitioner has explained inconsistency in his Supplementary Affidavit dated 24.9.2010. Paragraphs 4 and 6 of the Supplementary Affidavit are as follows:
Para-4 : That petitioner here submitted that the Khand Sankhya 3,4,5,6 at Internal page-2 of Mining Lease Application has been endorsed by him in his copy, for keep it for his memory and subsequently when the impugned Order dated 14.2.2007 was passed, challenging the same petitioner filed photocopy of aforesaid mining lease application in the Writ Petition, as such there is no deliberate fault of petitioner as the present controversy does not relates with Application and petitioner had not claim any advantage of his Application, more ever the controversy is not regarding the same as the area has already been recommended by District Magistrate.
Para-6: That petitioner here submitted in the Notice the Plot of 1251 was bifurcated for 5 Blocks each having 5 Acres, and one more Block which have 7.5 Acre although in the certified copy of the Map Block were not mentioned as such each and every applicant was presume to marked the area for which he was interested, as such petitioner had marked 30 Acres out of 1251 Plot and for his memory he had stated in his acknowledgement, copy of 7 application that the Khand Sankhya 3,4,5,6 may be within the area for petitioner for which he had marked, more ever the real controversy or relief sought by petitioner is different and petitioner cannot get any benefit for endorsing the Khand Sankhya in his application as the matter has already been recommended by Geological Mines and District Magistrate considering the same recommendation refer it to State Govt. vide letter Dt.27.7.2002. A copy of Letter dt. 27.7.2002 of District Magistrate is being filed herewith and marked as Annexure No. S.A.-2 to this affidavit.
11. From the averments of the affidavit it is clear that the Khands were mentioned in the copy of the application which was kept by the petitioner for his own memory and the said Khands were not the original lease application of the petitioner.
12. As noticed above, according to Clause -6 of notice dated 22.4.2001 the applicant has tp apply for one Khand. The petitioner in his application mentioned the total area of 30 acres without mentioning any Khand. It is true that Manoj Kumar Singh has also made an application for five acres of plot no.1251. Copy of the application of Manoj Kumar Singh is not on record, but there is recommendation of Mines Inspector on the record. Even if it is assumed that the application of Manoj Kumar Singh was for same part of area that will be the second application of Manoj Kumar Singh. Although the petitioner has made an application for 30 acres and Manoj Kumar Singh only for five acres. The application of Smt.Firoz Begum dated 16.7.2001 cannot be treated to be an application in response to the notice dated 22.4.2001 for the period of making an application was one week from 22.4.2001. Similarly application of Ashfaq dated 8.10.2001 also cannot be treated to be an application in response to the notice dated 22.4.2001. The application of Smt.Firoz Begum and Ashfaq are mentioned in the report of Mining Inspector filed along with Annexure-6 to the writ petition.
13. According to Rule 72(ii) as quoted above, if the number of 8 applications are less than three, the District officer has to again notify the area and not to grant the lease if number of applications are less than three, Thus the submission of the petitioner that there was four applications in response to the notice dated 22.4.2001 cannot be accepted.
14. Now comes the submission of the petitioner that only on the ground that since the District Officer had not granted the extension of one week period the rejection erroneous and against the Rules. From the order dated 14.2.2007, it is clear that after issuing of the notice dated 22.4.2001 no further extension was granted. In case the Rule 72(ii) is interpreted in the manner that extension of one week period is mandatory. The submission of learned counsel for the petitioner may be right that not following the mandatory condition and then taking benefit of non compliance of Rule may not be possible. Thus the crux of the matter is as to whether the requirement of Rule 72(ii) that- " District Officer "may" further extend the period for seven more working days" is mandatory or directory.
15. In support of the preposition that no one can take benefit of one's own wrong the reliance has been placed by the petitioner on Kusheshwar Prasad Singh(Supra) the paragraphs 12,14,15 which are following affects.
12.Having considered the rival submissions of the learned counsel for the parties, in our opinion, the appeal deserves to be partly allowed. So far as the contention of the appellant that the proceedings had been initiated in 1973-1974 and final order was passed on 7.1.1976 is not disputed and cannot be disputed. If it is so, submission of the appellant is well founded that final statement as required by sub-section(1) of Section 11 ought to have been issued and effect ought to have been given to the final order. Admittedly, no appeal was filed. Nor the order was challenged by any party. The appellant is right in contending that final statement ought to have been issued immediately or in any case within 9 "reasonable time". The authority cannot neglect to do that which the law mandates and requires doing. By not issuing consequential final statement under Section 11(1) of the Act, the authority had failed to discharge its statutory duty. Obviously, therefore, the appellant is justified in urging that such default in discharge of statutory duty by the respondents under the Act cannot prejudice him. To that extent, therefore, the grievance of the appellant is well founded.
13.The appellant is also right in contending before this Court that the power under Section 32-B of the Act to initiate fresh proceedings could not have been exercised. Admittedly, Section 32- B came on the statute book by Bihar Act 55 of 1982. The case of the appellant was over much prior to the amendment of the Act and insertion of Section 32-B. The appellant, therefore, is right in contending that the authorities cannot be allowed to take undue advantage of their own default in failure to act in accordance with law and initiate fresh proceedings.
14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutanjay Pani v. Narmada Bala Sasmal wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong).
10 To the same effect reliance has been placed on the judgement of Mrutunjay Pani and another(SC).Para 5 of the judgement is relevant as follows:
" The section, read with illustration(c), clearly lays down that where an obligation is cast on the mortgagee and in breach of the said obligation he purchases the property for himself, he stands in a fiduciary relationship in respect of the property so purchased for the benefit of the owner of the property. This is only another illustration of the well settled principle that a trustee ought not to be permitted to make a profit out of the trust. The same principle is comprised in the latin maxim commodum ex injuria sua nemo habere debet, that is, convenience cannot accrue to a party from his own wrong. To put it in other words, no one can be allowed to benefit from his own wrongful act.
16. The preposition as laid down in the aforesaid case that one can not be allowed to take benefit of his own wrong i.e. when a statutory authority is oblige to perform a duty and by not performing the duty the said authority cannot take any benefit of his inaction, but the question is as to whether the requirement of extension of one week from receiving the application is mandatory or directory. It is to be noted that in Rule 72(ii) rule making authority has used both the words " may and shall", while District Officer has been empowered by using the word "may" to further extend the period for seven days in the same sub-rule and in event number of applications remains less than three. The District Officer has been obliged to issue fresh notice by using the word " shall" in Rule 72. It is to be presumed that the legislature using the two words is well aware and signify two different concept. The above preposition is fully supported by the judgement placed by leaned Standing Counsel in Smt.Bachahan Devi 's case, as laid down in para 34 which is quoted below:
11 "Obviously where the legislature uses two words "may" and "shall" in two different parts of the same provision prima facie it would appear that the legislature manifested its intent on to make one part directory and another mandatory. But that by itself is not decisive. The power of court to find out whether the provision is directory or mandatory remains unimpaired."
17. We thus conclude that the requirement of extension of period of seven days is directory. The requirement of notifying the availability of area is mandatory when the number of applications is less than three. Thus after issuing the notice dated 22.4.2001 and after expiry of the said period and when the period is not extended it was obligatory for the District Officer to notify the area again since the number of applications was less than three. Learned counsel for the petitioner submits that the whole foundation of the impugned order has been made on the ground that since extension was not granted for one week the application is rejected.
18. Learned counsel for the petitioner has also placed reliance on the report of District Officer dated 27.7.2002 Annexure-1 to the Supplementary Affidavit by which the District Officer has submitted a report to the State Government with regard to the extension of period of lease of one Vinay Kumar Divedi for plot no.1251. In the said letter the District Officer has referred the application of the petitioner, Firoz Begum ,Ashfaq and Manoj Kumar Singh. District Officer in the said letter has stated that applications regarding 40 acres have been received and area 7.5 acres is still left. The said letter does not help the petitioner in any manner since the said letter was written by District Officer in the context of extension of period of lease of one Vinay Kumar Divedi and mention of four applications including the petitioner were in the above context. The said letter does not mention that the application of all the four persons were in response to the notice dated 22.4.2001. In response to the notice dated 22.4.2001 applications were submitted by only 12 the petitioner and Manoj Kumar Singh at best hence the said letter does not help the petitioner.
19. Considering the entire facts and circumstances and interpretation of Rule 72(2) we are of the view that the petitioner's application was not entitled to be considered since the number of applications for area was less than three and mandatory duty of the District Officer was to notify the area again. Learned counsel for the petitioner further contended that the application remained pending for such a long time and authorities were required to be decide the same earlier. The petitioner in the writ petition has also claimed of writ of mandamus directing the respondent to grant mining lease to the petitioner. We have taken the view that the petitioner is not entitled for grant of lease because the applications were less than three and hence no mandamus can be issued, the delay on the part of the respondent in deciding the application could not be said to have any adverse effect on the petitioner. Further it was open for the petitioner to take appropriate steps for an early decision on his application if he was so advised immediately after recommendations were made.
20. In view of the above, we being satisfied that the applications were less than three and hence no error has been committed by the District Officer in rejecting the application of the petitioner. The petitioner is not entitled for any relief..
21. The writ petition is dismissed.
OrderDate:-5.1.2011 Hsc/