Hon'ble Sanjay Misra, J.
Hon'ble Anant Kumar, J.
Counter and rejoinder affidavits have been exchanged between the parties.
We have heard Sri. Shashi Nandan, learned Senior Counsel assisted by Sri. M.L Srivastava, learned counsel for the petitioners and learned Standing Counsel for the State-respondents.
The petitioners being aggrieved by an earlier order passed by the District Magistrate, Sonebhadra had filed a Writ Petition No. 54211 of 2011 (Manoj Kumar Sood v. State of U.P) which was allowed on 13.02.2012 wherein a direction was issued to the Director, Geology and Mines to pass orders within four weeks with respect to settling lease rights in favour of the petitioner over Plot Nos. 4478-Cha and 6229-Kha area 3 and 5 acres respectively for the purpose of mining operations. Learned counsel states that in pursuance thereof the Director had passed an order on 17.03.2012 wherein he found that the District Magistrate is the competent authority for grant of lease for mining operations hence the District Magistrate, Sonebhadra was directed to issue Form-A and take steps to execute the lease. Learned counsel states that the respondent authorities required the petitioner to produce the Environmental Clearance Certificate which the petitioner had obtained from the State Level Environmental Impact Assessment Authority and he filed the certificate dated 11.10.2013 wherein he was granted the environmental clearance for Khasra No. 6229-Kha area 5 acres.
According to learned counsel for the petitioner in spite of having completed all the formalities and complied with all the directions the respondents are not executing the mining lease in favour of the petitioner and hence this writ petition.
A counter affidavit has been filed on behalf of the State-respondents wherein they have stated that a Government Order dated 31.05.2012 has been issued to the effect that when an area in excess of 5 acres is to be given for mining operation it has to be done by e-Tendering Process. A further defence has been taken in the counter affidavit to state that under a notification dated 23.12.2012 it has been decided that mining leases should not be granted for an area of less than 5 hectares. Learned Standing Counsel has referred to the notification dated 23.12.2012 which has been filed as Annexure CA-3 to the counter affidavit.
From the averments made in the counter affidavit we find that there are two main grounds taken in the counter affidavit. The first being that under the Government Order dated 31.05.2012 mining rights over an area of more than 5 hectares are to be determined by the e-Tendering process and the second is based on the Government notification dated 23.12.2012 where it has been decided that the mining leases should not be granted for an area less than 5 hectares.
The present writ petition relates to an advertisement for grant of mining rights over the plot in question issued in the year 2009 (09.09.2009) where after it appears that the matter has travelled upto the High Court and now at this stage the defence taken by the State-respondents is based on the Government Order dated 31.05.2012 which has not been brought on record and the notification dated 23.12.2012 which has been filed as Annexure CA-3.
In any event the notification dated 23.12.2012 indicates that it shall be effective from the date of publication in the official gazette. There is nothing on record of the counter affidavit to indicate that the said notification has been published in the official gazette.
There is also no pleading in the counter affidavit to indicate as to how the Government Order dated 31.05.2012 wherein leases have to be granted by e-Tendering process would apply to an advertisement which has already been published in the newspaper by the respondents on 09.09.2009
Similar situation arises with respect to the Government notification dated 23.12.2012 of not granting mining lease in an area of less than 5 hectares since the amendment to the Rules has been notified in the year 2012 and even if presuming that it has been published in the official gazette there after whether it could apply to an advertisement for settlement of mining rights issued on 09.09.2009 Clearly, clause 2 of the notification indicates that it will have prospective effect.
Under such circumstances, we are unable to understand as to why when the Government itself has directed the District Magistrate, Sonebhadra to proceed for purpose of grant of mining lease to the petitioner the matter is being delayed for reasons which are not convincing.
Under such circumstances, we find it appropriate to order that the District Magistrate, Sonebhadra should either comply with the directions issued by the State Government (Director) or show cause by 19.05.2014
Let the matter be listed in the cause list as a date fixed matter on 19.05.2014 by which time learned Standing Counsel may file supplementary counter affidavit in light of this order failing which the entire record of the advertisement in question be produced in person on the said date.