Jeet Mal Nishad vs State of U.P.and Others

R.K. Mahajan, J.—The petitioner has filed this writ petition with the following prayers:

"(1) issue a writ, order or direction in the nature of certiorari quashing the notice dated 1921996 issued by respondent No. 2 (Annexure No. 1 to this writ petition);

(2) issue a writ, order or direction in the nature of mandamus directing the respondents to decide the application of the petitioner dated 1611996 for plot No. 351 of Tehsil Karchana, District Allahabad within time stipulated;

(3) issue a writ, order or direction in the nature of mandamus commanding the respondents from issuing the mining permit of District Allahabad of the various mining area of river Yamuna even otherwise in accordance with law;

(4) issue such other and further order or direction in the nature of which this Hon''ble Court may deem fit and proper in the nature and circumstances of the present case."

The petitioner''s grievance is that from 2781994 auction lease system has come to an end and the District Magistrate have been directed to apply the provisions of Chapter II of U.P. Minor Mineral (Concession) Rules, 1963 (hereinafter referred to as Rules of 1963) and as such the respondents are not inclined to decide the application of the petitioner. He further alleges that issuing of notices dated 19021996 inviting application for grant of mining permit is illegal in view of the declaration of the area made under Rule 24 of Rules of 1963 dated 2781994 is still in operation and the area could not have been withdrawn from Chapter IV and included in Chapter II. The petitioner also alleged that he is a Mallah by caste and he has a preferential right under Rule 9A of Rules of 1963 for consideration of mining lease of sand. The public notice was issued by the Government on 1921996 with respect to areas near river Yamuna with certain conditions.

After hearing the learned counsel for the petitioner we are of the considered view that the writ petition is stillborn and is premature. From the prayer and the allegation it is apparent that the petitioner could also apply and there was no bar for consideration of his application. Secondly, the petitioner has not shown that what vested legal right he has which has been infringed and his allegations are only that certain orders arc not having any effect with respect to certain areas and it is a writ of general nature and he wants declaration that lease auction system has come to an end and it could not have been done by the Government with respect to certain plots and areas. The petitioner had an alternative remedy if his application would have been rejected to approach the competent authority by way of appeal under Rule 77 of Rules of 1963 as amended upto date. He could have also filed a representation that his application is not being disposed. The writ petition is based on surmises and hypothesis and it has also become infructuous with the passage of time as date of invitation of applications and consideration of the applications for grant of permit have already been expired. The petitioner wanted a writ of mandamus to prohibit the Government of issuing permit near river Yamuna except in accordance with law. It is also settled principle of law that no writ lies against notice and the petitioner could have taken all the pleas before the competent authority.

It is also mentioned in para No. 26 of the writ petition that Rule 9A of Rules of 1963 has been amended in 1994 which gives preference to the socially and economically backward communities engaged in the profession of excavating sand and living in the District and this is not legal. We are afraid to agree with this argument as the Government has power under Section 68 of the Rules of 1963 or even by issuing an instruction as under Article 162 of Constitution of India the power of the State Government is coextensive with the legislature and the instructions issued are having force of law. The Government framed policy to implement the socioeconomic justice to give effect to preamble of Constitution of India to achieve social justice and also to implement the principles of distributive justice under Article 38 of the Constitution of India. Under directive principle any rule framed to implement the directive principle would be valid which is not discriminatory which is not in this case. Mallah and the other communities mentioned under Rule

9A of Rules of 1963 would be preferred but they have to fulfil the conditions that they are professionally engaged in the excavation of sand and are residing within the District. This rule is not violative of any constitutional provision and the argument is devoid of force.

We are of the considered view that how a writ of mandamus cannot be issued to issue permit and how it can be assumed without material that Government has committed illegality. In the result the writ petition is dismissed.

This judgment will also dispose of writ petition No. 5914 of 1996 Ram Narayan Nishad v. State of U.P. and others.