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CASE NO.: Appeal (civil) 6459  of  1998

PETITIONER: M/S. A-ONE GRANITES

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT:       16/02/2001

BENCH: G.B. Pattanaik & B.N. Agrawal

JUDGMENT:

B.N.AGRAWAL,J. L...I...T.......T.......T.......T.......T.......T.......T..J     This  appeal  by special leave is directed  against  the judgment  dated  6.11.1998  of   the  Allahabad  High  Court rendered  in  a writ application filed by respondent no.   4 whereby  the same has been allowed and order dated 24.9.1997 passed  by the State Government sanctioning mining lease  of granite  sized dimensional stone in favour of the  appellant for  a  period of 15 years in relation to 10 acres  of  land comprising  of Plot No.  1 situate in Baghwa Mahoba and that dated  4.10.1997 passed by the District Magistrate,  Mahoba, showing  inability  to  decide   the  application  filed  on 4.7.1995  by respondent no.  4 for grant of mining lease  in view  of  the  aforesaid  order   of  the  State  Government sanctioning  mining  lease in favour of the  appellant  have been  quashed and a direction has been given to the District Magistrate  to  follow  rule 72 of the Uttar  Pradesh  Minor Minerals  (Concession) Rules, 1963 (hereinafter referred  to as  the  Rules) and dispose of the  aforesaid  application filed by the respondent no.  4 on 4.7.1995.

   The  short  facts  giving rise to this appeal  are  that respondent  no.  4 applied for grant of mining lease in plot no.   1,  Baghwa Mahoba measuring 10 acres and on  17.8.1977 the  same was granted in his favour under Chapter II of  the Rules  for a period of 10 years w.e.f.  September 17,  1977. On  the  expiry of the said period, respondent no.   4  once again  applied  for re-grant of the lease which was  granted this  time for a period of five years, which period  expired on  1.5.1992.  In the year 1992 a declaration was made under rule  23  of the Rules which is in Chapter IV declaring  the area  of Bhagwa Mahoba for grant of lease by way of  auction or  by  tender  or  by auction-cum-tender  and  thereby  the provisions contained in Chapters II, III and VI of the Rules were  made  inapplicable to the said area.  In view  of  the aforesaid  declaration, mining lease was granted by  auction in  favour of respondent no.  4 on 22.5.1992 in relation  to the aforesaid area of 10 acres for mining of minerals, viz., Khanda,  Gitty and Boulder for a period of three years.   On 30.3.1995  the  respondent   District Magistrate  issued  a notification  under  rule 24 of the Rules withdrawing  along

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with  other areas the area which was subject matter of lease granted  in  favour  of respondent No.  4  from  Chapter  IV w.e.f.   1.4.1995 and making provisions of Chapters II,  III and  VI of the Rules applicable to the area in question.  In the  meantime, on 27.8.1994 the Rules were amended by virtue of  20th amendment inserting therein rules 72 to 79.   Under rule  72 a procedure was provided for giving 30 days  notice for  re-  grant  of mining lease which rule was  amended  on 11.2.1995  by 21st amendment.  Under the amended rule 72 for re-grant  of mining lease, apart from 30 days notice,  seven working days time for receipt of applications is required to be  given and the said rule in effect and substance does not relate to mining leases granted under Chapter IV.

   After  amendment  of  the  said  rule,  the  respondent- District  Magistrate  issued a notice dated 31.3.1995  under rule  72 of the Rules calling for applications for grant  of mining leases after 30 days from the date of the issuance of notice,  i.e.,  2-5-1995 in relation to the area  which  was subject  matter  of  lease of respondent no.  4  along  with other areas.  Pursuant to the said notice, respondent no.  4 applied  for  grant  of  lease  in  his  favour  and  before completion  of period of seven days from the date specified, i.e.,  2.5.1995  an  order  was   passed  by  the   District Magistrate  on 6.5.1995 sanctioning lease in his favour.  As pursuant  to the said order no lease deed was executed,  the same   necessitated  respondent  no.   4  to  file  a   writ application  on  24.5.1995 before the Allahabad  High  Court being  C.W.P.   No.   15290/95 for directing  the  authority concerned  to execute a lease deed in his favour.  After the filing of the said writ application, the State Government on 29.5.1995  cancelled the said notice dated 31.3.1995  issued by  the District Magistrate on the ground that according  to the   policy  decision  of   the  State  Government  certain guidelines  were  provided  for   grant  of  granite  lease. Thereafter,  the District Magistrate issued fresh notice  on 30.5.1995  under rule 72 of the Rules inviting  applications for grant of mining lease which was challenged by respondent no.   4  in  a separate writ application  filed  before  the Allahabad  High Court being C.W.P.  No.16886/95.  In view of the  said  notice,  on 4-7-1995 respondent  no.   4  applied afresh  for  grant  of lease in his favour.  Both  the  writ applications  were heard and dismissed by the High Court  on 24.4.1996  holding  that  the  notice  dated  31.3.1995  was invalid,  being  contrary  to rule 72 of the  Rules  as  the period  of  seven  days  was   not  specified  therein  and, therefore,  there  was no illegality in cancellation of  the said  notice  and  issuance  of   fresh  one  on  30.5.1995. Challenging  the  said  order respondent no.   4  filed  two Special  Leave Petitions in which leave was granted and  the Civil Appeals were disposed of by a common judgment rendered on  9.4.1997 whereby the appeals were dismissed, but it  was observed  that the High Court was not justified in declaring that  the  notice  dated  31.3.1995 was invalid  as  in  the opinion of this Court the said notice was in accordance with the  provisions of rule 72 of the Rules, but cancellation of the  same  and  issuance of fresh notice  on  30-5-1995  was justified  as  the lease was sanctioned on  6.5.1995,  i.e., before  the expiry of the period of seven days.  This  Court while disposing of the said appeals granted liberty to issue a fresh notice for grant of lease in accordance with law.

   Though  according  to  the  observation  of  this  Court referred  to  above the District Magistrate was required  to

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issue  a  fresh notice, but respondent no.  4 was  insisting that  decision should be taken upon his application filed on 4.7.1995  pursuant  to notice dated 30.5.1995 and as he  did not  take  any step the said respondent filed an  appeal  on 30-4-1997  before the Divisional Commissioner under rule  77 of  the  Rules  making a prayer therein  for  directing  the District  Magistrate to dispose of his aforesaid application dated  4.7.1995 for grant of mining lease on merit.   During the  pendency of the said appeal, the District Magistrate on 20.8.1997  issued a fresh notice under rule 72 of the  Rules inviting  applications for grant of mining lease.  The  said notice  was  challenged  by respondent no.  4 by way  of  an application  filed in the said appeal before the  Divisional Commissioner.   On  11.9.1997  the  Divisional  Commissioner decided  the appeal and directed the District Magistrate  to decide  the  aforesaid  application  filed  on  4.7.1995  by respondent no.  4.

   Against  the  said order one Anil Kumar Shukla  filed  a revision before the State Government which is still pending. Thereafter,  on 24.9.1997 the State Government sanctioned  a mining  lease of granite sized dimensional stone in relation to  the  area in question in favour of the appellant  for  a period   of  15  years   without  following  the   procedure prescribed  under rule 72 of the Rules.  In accordance  with the aforesaid order of the Divisional Commissioner passed on 11.9.1997   when  respondent  no.   4  moved  the   District Magistrate  for  considering his application dated  4.7.1995 for  grant  of  mining lease, by order  dated  4.10.1997  he expressed  inability  to decide the application on merit  in view  of  the  lease  granted  on  24.9.1997  by  the  State Government  in  favour of the appellant.  Respondent no.   4 challenged the aforesaid order dated 24.9.1997 passed by the State  Government  and order dated 4.10.1997 passed  by  the District  Magistrate  by filing a writ petition  before  the Allahabad  High  Court being C.M.W.P.  No.  34381  of  1997. One  A.K.  Tripathi also filed two writ petitions.  All  the three  writ petitions were heard and disposed of by the High Court  on  6.11.1998.  The writ applications filed  by  A.K. Tripathi  were dismissed on the ground that he did not  file any  application pursuant to the notice.  So far as the writ application filed by the respondent No.  4 is concerned, the same  was allowed, order dated 24.9.1997 passed by the State Government  and that dated 4.10.1997 passed by the  District Magistrate  were  quashed  and the District  Magistrate  was directed  to  take  a decision upon  the  application  dated 4.7.1995  filed by the respondent no.  4 in accordance  with law  as  the lease was sanctioned on 24.9.1997 by the  State Government  in favour of the appellant without following the procedure   prescribed   under  rule  72   of   the   Rules. Challenging  the  aforesaid decision of the High Court,  the appellant  filed Special Leave Petition before this Court in which  leave  to  appeal having been  granted,  the  present appeal is placed before us.

   Mr.   Govind  Das and Mr.  G.L.  Sanghi, learned  Senior Counsel, appearing on behalf of the appellant, in support of the  appeal  submitted  that  rule 72 of the  Rules  had  no application for sanctioning lease in favour of the appellant by  the State Government under its order dated 24.9.1997  as earlier  lease  in  relation  to the area  in  question  was granted  under Chapter IV and not under Chapter II  inasmuch as  under  rule 72, as amended by the 21st  amendment,  only that  area  becomes  available for re-grant which  was  held under  a mining lease under Chapter II or was reserved under

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Section  17A  of  the Mines and  Minerals  (Development  and Regulation)  Act, 1957 and not the area which was held under mining lease under Chapter IV, like the present one.  It was further  submitted  that in view of the observation of  this Court  on the earlier occasion, the District Magistrate  was required  to issue a fresh notice under rule 72 of the Rules and,  therefore,  the  High  Court   was  not  justified  in directing  him to consider application dated 4.7.1995  filed by respondent no.  4 for grant of lease.

   Mr.   Gaurab  Banerjee,  learned  counsel  appearing  on behalf  of the State Government, supported the stand of  the appellant.

   Mr.   Shanti Bhushan, learned Senior Counsel,  appearing on  behalf of respondent no.  4, submitted that the question regarding  applicability of rule 72 is no longer res integra as  this question is concluded by the decision of this Court in  the  earlier appeals, as aforesaid.   Alternatively,  he submitted  that rule 72 was applicable in a case of re-grant of  mining lease irrespective of the fact that mining  lease was  granted  previously either under Chapter II or  Chapter IV.   He  further  submitted that the High Court  was  quite justified  in  giving  a direction to  consider  application dated  4.7.1995  filed by respondent no.  4 as according  to the  earlier decision of this Court there was no  illegality in  the  notice pursuant to which the said  application  was filed by respondent no.  4.

   The first question which falls for consideration of this Court  is as to whether the question regarding applicability of  rule 72 of the Rules in relation to the present lease is concluded  by the earlier decision of this Court rendered in Prem  Nath  Sharma vs.  State of U.P.  & Anr., (1997) 4  SCC 552.  From a bare perusal of the said judgment of this Court it  would  be clear that the question as to whether rule  72 was  applicable or not was never canvassed before this Court and the only question which was considered was whether there was violation of the said rule.

   This  question was considered by the Court of Appeal  in Lancaster  Motor  Co.   (London) Ltd.   vs.   Bremith  Ltd., (1941)  1  KB  675,  and  it was  laid  down  that  when  no consideration was given to the question, the decision cannot be  said  to  be  binding and precedents  sub  silentio  and without  arguments  are  of no moment.  Following  the  said decision, this Court in the case of Municipal Corporation of Delhi vs.  Gurnam Kaur, 1989 (1) SCC 101 observed thus:-

   In  Gerard v.  Worth of Paris Ltd.(k), (1936) 2 All  ER 905  (CA),  the  only point argued was on  the  question  of priority of the claimants debt, and, on this argument being heard,  the  court granted the order.  No consideration  was given  to  the  question  whether a  garnishee  order  could properly  be made on an account standing in the name of  the liquidator.   When, therefore, this very point was argued in a  subsequent  case before the Court of Appeal in  Lancaster Motor Co.  (London) Ltd.  v.  Bremith Ltd., (1941) 1 KB 675, the  court  held itself not bound by its previous  decision. Sir  Wilfrid  Greene,  M.R.,  said that he  could  not  help thinking  that  the point now raised had  been  deliberately passed  sub  silentio by counsel in order that the point  of substance  might  be  decided.  He went on to say  that  the

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point had to be decided by the earlier court before it could make  the  order which it did;  nevertheless, since  it  was decided  without argument, without reference to the crucial words  of the rule, and without any citation of  authority, it  was  not binding and would not be followed.   Precedents sub  silentio  and without argument are of no moment.   This rule has ever since been followed.

   In State of U.P. & Anr. vs.  Synthetics and Chemicals Ltd.  & Anr., (1991) 4 SCC 139, reiterating the same view, this Court laid down that such a decision cannot be deemed to be a law declared to have binding effect as is contemplated by Article 141 of the Constitution of India and observed thus:

   A  decision which is not express and is not founded  on reasons  nor it proceeds on consideration of issue cannot be deemed  to be a law declared to have a binding effect as  is contemplated by Article 141.

   In  the case of Arnit Das vs.  State of Bihar, 2000  (5) SCC  488,  while  examining  the binding effect  of  such  a decision, this Court observed thus:-

   A  decision  not expressed, not accompanied by  reasons and  not proceeding on a conscious consideration of an issue cannot  be  deemed  to be a law declared to have  a  binding effect  as  is contemplated by Article 141.  That which  has escaped in the judgment is not the ratio decidendi.  This is the  rule  of  sub silentio, in the technical sense  when  a particular point of law was not consciously determined.

   Thus  we  have  no  difficulty in holding  that  as  the question  regarding  applicability of rule 72 of  the  Rules having  not  been even referred to, much less considered  by this  Court  in the earlier appeals, it cannot be said  that the point is concluded by the same and no longer res integra and  accordingly  this  Court is called upon to  decide  the same.

   By  virtue  of  Entry 54 of Union List  to  the  Seventh Schedule  of  the  Constitution  of  India,  the  Parliament enacted  the Mines and Minerals (Development and Regulation) Act,  1957 (hereinafter referred to as the Act) to provide for  the  development and regulation of mines  and  minerals under  the  control  of the Union.  Section 15  of  the  Act provides  that  the  State  Government may  make  rules  for regulating  the  grant  of quarry leases, mining  leases  or other  mineral concessions in respect of minor minerals  and for  purposes  connected therewith.  In exercise  of  powers conferred  under  the aforesaid section, the  Government  of Uttar  Pradesh  made rules called The Uttar  Pradesh  Minor Minerals  (Concession) Rules, 1963 which were published  in the U.P.  Gazette on 14.9.1963.  Expression Minor Minerals was defined under rule 2(7) of the Rules which reads thus:-

   ‘Minor   minerals  means   building  stones,   gravel, ordinary  clay,  ordinary  sand  other than  sand  used  for prescribed purposes, and any other mineral which the Central Government has declared from time to time or may declare, by notification in the official Gazette, to be a minor mineral, under  clause  (e)  of Section 3 of the Mines  and  Minerals (Regulation  and  Development)  Act, 1957 (Act  No.   67  of 1957). Chapter III provides for payment of royalty and dead

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rent.   Under  rule 21 of the Rules, which is under  Chapter III,  a holder of mining lease is required to pay royalty in respect  of any mineral removed by him from the leased  area at  the  rates  for the time being specified  in  the  First Schedule  appended to the Rules.  On 25.11.1993 an amendment was  made  whereby  granite   sized  dimensional  stone  was incorporated in item (5) of the Schedule as (v).  Conditions of  mining  leases  have been enumerated in  Chapter  V  and Chapter  VI prescribes procedure for grant of mining permit. In  the  original Rules there were 71 rules.  Thereafter  on 27.8.1994  by 20th amendment rules 72 to 79 were inserted in Chapter  VIII  of  the  Rules out of which rule  72  may  be referred to which reads thus:-

   R.72.-   Availability  of  area   for  regrant  to   be notified.-  (1)  If any area, which was held under a  mining lease  or  reserved  under section 17-A of the  Act  becomes available  for regrant the District Officer shall notify the availability   of  the  area   through  a  notice   inviting applications  for grant of mineral concessions specifying  a date,  which shall not be earlier than thirty days from  the date  of  notice and giving description of such area  and  a copy  of such notice shall be displayed on the notice  board of  his  office and shall also be sent to the  Tehsildar  of such area and the Director.

   (2).  An application for grant of mining lease or mining permit  for such area which is already held under a lease or notified  under  sub-rule (1) of rule 23 or  reserved  under section  17-A of the Act and whose availability has not been notified under sub-rule (1) shall be premature and shall not be  considered and the application fee thereon if paid shall be  refunded.  Subsequently, on 11.2.1995 by 21st  amendment rule 72 was amended and substituted as follows:-

   R.72.- Availability of area for regrant on mining lease to be notified.-

   (1)  If  any area, which was held under a  mining  lease under  Chapter  II or on reserved under section 17-A of the Act,  becomes  available for regrant, the  District  Officer shall  notify the availability of the area through a  notice on  mining  lease  inviting for applications  for  grant  of mining  lease specifying a date, which shall not be  earlier than  thirty  days  from  the  date  of  notice  and  giving description  of such area and a copy of such notice shall be displayed  on the notice board of his office and shall  also be sent to the Tehsildar of such area and the Director.

   (2)  The  applications for grant of mining  lease  under 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 for  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 remain less than three, the district officer shall notify the availability of the area afresh in accordance with the said sub-rule.

   (3)  An  application for grant of mining lease for  such area  which is already held under a lease or notified  under sub-rule  1 of rule 23 or reserved under section 17-A of the Act  and  whose  availability has not  been  notified  under sub-rule  1 shall be deemed to be premature and shall not be considered  and the application fee thereon if paid shall be

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refunded.

   Under  the  Rules,  mining operation in respect  of  any minor  mineral can be undertaken only in accordance with the terms  and  conditions  of a mining lease or  mining  permit granted  under  the  Rules.  Such a lease could  be  granted under  Chapter II, which prescribes the procedure and rule 9 provides  for a preferential right when two or more  persons apply  for a mining lease in respect of the same land.   The mining  lease could also be granted under Chapter IV by  way of  auction/tender/auction-cum-tender when State  Government by  special  or  general  order declare  that  the  area  in question  could be leased out by auction or by tender or  by auction-cum-tender,  as provided in rule 23.  The  procedure for  grant  of lease by auction is provided under  rule  27. Rule  24 empowers the State Government to withdraw any  area which  had  been declared under sub-rule (1) of rule 23  and once the area is withdrawn under rule 24, then the procedure prescribed  in Chapter II for grant of mining lease  becomes applicable.  Thus the procedure provided under Chapter II of the  Rules  being  the normal procedure, Chapter  IV  is  an exception  to the same.  It may be useful to quote rules  23 and 24 hereunder which are under Chapter IV:-

   R.23.-    Declaration    of     area    for    auction/ tender/auction-cum-tender/lease:-

   (1)  The  State  Government may by  general  or  special order,  declare the area or areas which may be leased out by auction or by tender or by auction-cum-tender.

   (2)  Subject to direction issued by the State Government from  time to time in this behalf no area or areas shall  be leased  out by auction or by tender or by auction-cum-tender for  more  than  five years at a time:   Provided  that  the period  in respect of in siturock type mineral deposit shall be  five  years and in respect of river bed mineral  deposit shall be one year at a time.

   (3)  On  the  declaration  of the area  or  areas  under sub-rule  (1)  the provisions of Chapters II, III and VI  of these  rules shall not apply to the area or areas in respect of  which  the  declaration has been issued.  Such  area  or areas may be leased out according to the procedure described in this Chapter.

   (4)  The  District Officer shall get the area  or  areas declared  under  sub-rule  (1), evaluated  for  quality  and quantity  of mineral for fixing minimum bid or offer by  the Director, Geology and Mining, Uttar Pradesh or by an officer authorised  by  him  before the date fixed  for  auction  or tender or auction-cum-tender, as the case may be.

   R.24.-  Withdrawal  of area from auction or  tender  or auction-cum-tender:- The State Government may by declaration withdraw  any  area or areas declared under sub-rule (1)  of rule 23 or part thereof from any system of lease referred to there  and  from  the date of withdrawal  specified  in  the declaration  which  shall  not  be   the  date  during   the subsistence  of  a  lease granted under  this  Chapter,  the provisions  of  Chapter II, III and VI of these rules  shall become applicable to such area or areas.

   By  20th  amendment whereby rule 72 was incorporated  in the  Rules certain restrictions were put to the effect  that

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if  any area which was held under a mining lease or reserved under  Section 17A of the Act became available for re-grant, the District Officer was required to notify its availability through  a notice inviting applications for grant specifying a date which shall not be earlier than 30 days from the date of  the  notice  and  the said notice  was  required  to  be displayed on the notice board of the District Office and was also  required to be sent to Tehsildar of such area and  the Director.   According to the aforesaid rule, if an area  was held  under  mining lease either under Chapter II  or  under Chapter  IV,  the  procedure  prescribed   in  rule  72  was applicable.   By  21st  amendment, rule 72  was  substituted which prescribes the procedure of notifying the availability of  the area through a notice, inviting for applications for grant  of  mining lease, specifying the date when  the  said area which was held under a mining lease under Chapter II or reserved under Section 17-A of the Act becomes available for re-grant  on mining lease.  Further amendment was made  that the  applications for grant of mining lease were required to be received within 7 working days from the date specified in the notice referred to in sub-rule (1) of rule 72.

   The  language  used in rule 72(1) on a  literal  meaning being given, would undoubtedly support the contention of Mr. Das  and Mr.  Sanghi, appearing for the appellant that  this procedure would not apply when the area in question had been held  under  a lease not under Chapter II but under  Chapter IV.   But such an interpretation should be avoided  inasmuch as  the very purpose for which rule 72 has been engrafted in the Rules will totally get frustrated.  The object of having such  provision  is transparency in the matter  of  granting mining  lease  and restrict any under-hand dealing with  the minerals  by  the permit granting authority.  The object  of notifying  the availability through a notice by the District Officer is to bring it to the notice of the public at large, so  that an interested applicant can make an application and such  application could be considered on its own merit, when more  than  one applications are received in respect of  the same area.  The lease under Chapter II of the Rules could be granted for a period not exceeding ten years, as provided in sub-rule  (1) of Rule 12 and under sub-rule (2) of Rule  12, if  the State Government is of the opinion that it would  be necessary  in  the interest of mineral development,  it  may grant  the lease for any period exceeding ten years but  not exceeding fifteen years.  The Rules also contemplate renewal of  such lease.  Rule 19(2) empowers the State Government to determine  any  lease on the grounds  indicated  thereunder, after  giving the lessee a reasonable opportunity of stating his  case.   The area which was being operated upon  on  the basis  of  a  lease obtained under Chapter II  when  becomes available  for  re-grant if the prescribed  procedure  under rule  72 is not followed, then it may lead to favourtism and bias,  ultimately  resulting  in corruption  of  the  permit granting  authority.   It  is  to prevent  such  abuse,  the Legislature  have  brought  into the  Rules,  the  procedure prescribed  under  rule  72,  the   duty  of  notifying  the availability  of the area by the District Officer.  In  case of  auction lease, it is not necessary, since the  procedure prescribed  for  grant  of auction lease in rule  27  itself indicates  that  the  District   Officer  or  the  Committee authorised  is duty bound to at least give a notice 30  days before the date of auction in the manner indicated under the Rules  by providing the date, time and place of auction  and if  for  any  reason, the auction is not  completed  on  the notified  date,  then  a fresh auction could be  held  after

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giving  a  shorter notice of at least seven days.  Thus  the procedure followed for grant of lease by auction as provided under  rule  27  or tender as provided under rule  27(A)  or auction-cum-tender,  as provided under rule 27(B) is  itself sufficient   notice  to  the  public   to  enable  them   to participate  in  the auction/ tender/auction-cum-tender  and question  of any clandestine dealing in such case would  not arise.   But  in  a  case  when  the  area  was  held  under auction/tender/auction-cum-tender  under Chapter IV and  the State Government withdraws the area from the said procedure, whereafter  provisions  of Chapter II, the normal  procedure for  granting  lease  becomes applicable as in the  case  in hand,  then  if  Rule 72 is interpreted in  the  manner,  as contended  by the learned counsel for the appellant, then it would  frustrate  the purpose of transparency and  open-ness engrafted  in  rule  72 and such an interpretation  will  be against  the legislative intent.  It is a cardinal principle of  construction  that the courts must adopt a  construction which  would  suppress the mischief and advance the  remedy. In   other  words,  the  court   must  adopt   a   purposive interpretation  of  the provisions under consideration.   So construed,  it is difficult for us to accept the  contention of  Mr.  Das appearing for the appellant that rule 72 has no application  to the case in hand merely because the area  in question  had  been  held by the previous  lessee  for  some period   under  auction/tender  basis   under  Chapter   IV, particularly  when  on  30th  of March,  1995  the  District Magistrate  withdrew  the  area  held  under  auction/tender system  to  the  normal procedure of grant of  mining  lease under Chapter II w.e.f.  01.4.1995.

   Thus,  we  are  of the opinion that rule 72  shall  have application  in the case in hand and the High Court has  not committed  any  error  in quashing the order passed  by  the State  Government sanctioning mining lease in favour of  the appellant  without following the procedure prescribed  under rule 72 of the Rules.

   The  last  question  which falls  for  consideration  is whether  the High Court was justified in giving a  direction to the District Magistrate to consider the application dated 4.7.1995  filed by the respondent no.  4 for grant of mining lease.   It is true that on the earlier occasion this  Court found  that the notice was valid, but the order for grant of mining  lease  being  contrary to rule 72, was  held  to  be invalid.   In  the operative portion of the judgment it  was specifically  directed  that  the respondents  will  be  at liberty  to  issue a fresh notice for the grant of lease  in accordance  with  law and keeping in view  the  observations contained  herein, which would obviously mean that a  fresh notice  for  grant  of lease was required to  be  issued  in accordance  with  rule  72  of the  Rules.   As  this  Court observed  for  issuance of fresh notice, we do not find  any reason  as  to  how  the application filed  on  4.7.1995  by respondent  No.  4 pursuant to notice dated 30.5.1995  could be  considered.  If a fresh notice is issued, all  concerned persons  including  the appellant and respondent no.  4  can apply for the grant.

   This  being  the position, we are of the view  that  the High  Court  was not justified in quashing the order of  the District  Magistrate dated 4.10.1997 and giving a  direction to  him  to  consider  application  dated  4.7.95  filed  by respondent  no.   4.  In our view, the authorities  are  now required  to  issue fresh notice in terms of rule 72 of  the

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Rules and consider the applications for grant of lease filed pursuant  thereto in accordance with law and no  application filed  earlier  either  pursuant  to  previous  notices   or otherwise shall be considered.

   In  the  result, the appeal is allowed in  part.   While upholding  that  portion of the judgment of the  High  Court whereby  lease  sanctioned  in favour of the  appellant  was quashed,  we set aside other part of the judgment, directing consideration  of  the  application dated  4.7.1995  of  the respondent  No.   4  and application, if any filed,  by  the appellant  pursuant to the impugned judgment.  There will be no order as to costs.

[G.B.PATTANAIK] @@ IIIIIIIIIIIIIIII

[B.N.AGRAWAL]

FEBRUARY 16, 2001.