V.D. Bhargava, J.
1. This is a petition under Article 226 of the Constitution by a firm named and styled Ch. Mansa Ram and Sons. It has been filed against the Secretary, Industries (B) Department, Government of Uttar Pradesh, Lucknow; The Secretary Forests Department, Government of Uttar Pradesh, Lucknow, Collector, Dehra Dun; Sri C. P. Sharma, Dehra Dun and Hindustan Sugar Mills, Ltd. (Cement Division) Branch Office, Dehra Dun.
2. According to the petition, the petitioner is a partnership firm consisting of three persons, Dr. Satya Prakash, Sri Vigyan, Prakash and Sri Dharam Prakash. They are all sons of Ch. Mansa Ram The managing partner is Vigyan Prakash through whom this writ petition has been filed by the firm. The firm holds' a certificate of approval granted to them by the State Government under Rule 5 of the Mineral Concession Rules, 1949. On 29-2-1952 the petitioner filed an application under Rule 6 of the Mineral Concession Rules to the Government, Uttar Pradesh through the Collector, Dehra Dun who has been authorised to receive such applications, for the grant of a mining lease covering an area of 360 acres comprising of Barkot village and Barkot Forest in the district of Dehra Dun. No orders on this application were passed.
Therefore on 25-4-1952 the firm again applied to the Collector, Dehra Dun for the grant of a temporary permit for extraction of lime stone in the aforesaid area pending the grant of a permanent mining licence. Another application was made on 31-3-1952 to the Divisional Forest Officer, Dehra Dun Forest Division for the grant of a mining lease for lime-stone in Sansaru Khala Block, a part of which fell in the Reserved Forest Area and the petitioner was under the impression that it was the Divisional Forest Officer, who. would grant the lease. The petitioner was informed that, according to the instructions, even the lease of this land was to be granted by the District Magistrate.
3. Upto the 21st May, 1955 no orders were passed either for the grant of a mining lease or a temporary permit to extract lime-stone. On that date, by letter No. XXX-130-9 he was informed that the matter was pending consideration of the Government. The petitioner had also been writing to the Industries Department. Again, yet by another letter No. 1467(1) EP/XVIII-B.M. 25/52 dated 16-4-1956, the petitioner was informed that the matter was receiving attention of the Government. Upto the date of filing the petition, according to the petitioner, i.e., till July 1957, no orders had been passed on the petitioner's two applications.
4. It was contended that according to Rule 32 the petitioner was to be given priority, because there was no other applicant prior to the petitioner who had applied for a mining licence. According to the petition it is after the inspection of the Mining Register that he is able to state this fact. By a letter No. 5524/22-14-16 5524/22-14-16 dated 30-1-1956 the petitioner was informed that his application had been rejected for granting of a mining lease, and the lease for five years to pick up lime-stone scattered in that area had been granted to Sri C. P. Sharma respondent No. 4 and as such none else could be considered for similar contract in that area. It was contended that the contention of the Government that his application had been rejected was not correct, and that actually his application is still pending.
5. It was further contended that though Mr. Sharma has been granted a lease for collecting limestone, he is actually quarrying, digging, working and carrying away lime-stone from the said area and also persons of the Hindustan Sugar Mills Ltd. (Cement Div.) Dehra Dun were also carrying on prospecting operations in the aforesaid area under some sort of arrangement. The petitioner has not been able to obtain copy of the lease issued to Mr. Sharma or the Hindustan Sugar Mills, respondent No. 5. Again, granting of lease to Mr. Sharma has been challenged in this writ petition.
6. The grounds upon which the lease is challenged are that the leases granted to respondents are not in accordance with the Mines and Minerals Regulation and Development) Act, 1948 or the Mineral Concession Rules, 1949 and therefore illegal, void and ultra vires, and that the leases have been granted in contravention of Rule 32 of the Mineral Concession Rules, as the petitioner has acquired statutory right of being granted lease in preference to any one else.
7. A counter affidavit has been filed of which different paragraphs have been sworn by different people. Sri H. K. Saxena is the Teh,sildar, Quarries, Dehra Dun, Sri Girja Dayal is the Assistant Conservator of Forests, Dehra Dun, and Sri Tajuddin Ah-mad is the Assistant, Industries (B) Department, U. P. Civil Secretariat, Lucknow. They have sworn the counter affidavit. It was sworn by three different persons because different facts were within the knowledge of three different persons. 'The application having been made by the petitioner for a mining lease is admitted. It is further admitted that there has been a delay in rejecting that application and it was contended that actually that application had been rejected and there was no application pending. The cause of the delay has been given in several paragraphs; inter alia the following reasons have been given :
(1) that when the Mineral Concession Rules of 1949 came into force the royalty charge was less and, therefore, there was correspondence going on between the State Government and the Central Government about enhancement of the rate of royalty, and it was by notification No. SRO-100 dated 9-1-1956, published in the Government of India Gazette Part II dated 14-1-1956 that the rate of royalty was revised to 5 per cent of the sale value at the pits' mouth subject to a minimum of annas six per ton;
(2) that the Geological Survey of India had undertaken survey of the marble and lime-stone deposits and they had directed by one of their letters not to enter into long term commitments regarding leasing of these deposits. The final report was not submitted by the Geological Survey of India till 5-11-1954;
(3) that before the application by the petitioner for mining lease, Sri Chatter Gun Gujral had applied for a prospecting licence for lime-stone in an area of about 590 acres, which included the areas for which the petitioner later on applied. That application was first rejected by the State Government and later on was directed to be allowed by the Government of India, and since that application of Sri Gujral was pending in appeal, no final decision could be taken on the application of the petitioner; and
(4) that in November 1955 the State Government was considering reservation of suitable areas of lime-stone as they wanted to establish a cement factory in that area and, therefore, they were deferring consideration of the mining licence.
8. Ultimately they rejected the application on the ground that quarrying of lime-stone in that area was likely to cause serious erosion, and 'destruction of a hill forest the maintenance of which is of utmost importance for conservation of soil and water. However. Sri C. P. Sharma was sanctioned a lease for five years by the Government to pick up lime-stone scattered in the entire area and 'as such no lease could be considered for similar contract in that area.
9. It was contended by learned counsel for the petitioner that there had been two Geological experts, Sri Ravi Prakash and Sri A. K. Zuberi of the Directorate of Geology and Mining, U. P. Luck-now, who reported that there was no likelihood of erosion in that area, and mining operations were carried on there and, therefore, it was suggested that the licence for mining should have been granted. We do not know when this report was submitted. If it had been submitted earlier, the Government may not have accepted that opinion. If it was after the rejection of this application, that the report was submitted, it is still open to the petitioner to apply afresh for the grant of a mining licence.
10. Moreover, there appears to be another difficulty, as a prospecting licence for this area has already been granted, it will not be possible both For mining and prospecting licences being granted For the same area. What Chattar Gun Gujral had been granted was not a mining licence but a prospecting licence. These are the only two licences which have been dealt with in the Mineral Concession Rules of 1949. Further, the present licence of Sri C. P. Sharma does not actually come strictly within these Rules, It is in the nature of a lease for collecting lime-stone and not for mining.
11. Learned counsel for the petitioner urged that mining lease as defined by the Rules means:
'A lease to mine, quarry, bore, dig and search for, operate, work and carry away any mineral specified therein.' According to the above definition, carrying away any minerals would be a mining lease.
Mining operation actually is to quarry, bore, dig and search for and after this has been done a right to cany has been given by the mining lease. The primary object of the lease is not the carrying away of any mineral which is lying there, but it is quarrying, boring, mining, digging and searching for the mineral and, therefore, a lease for mere collection would not be a mining lease.
12. Under Rule 32 priority is to be given to a person, who has applied for a mining lease prior in time. Similarly under Rule 18 of these Rules, priority is to be given to a person who has applied earlier in time for prospecting licence. So far as prospecting licence is concerned, there is no dispute that the petitioner had never applied for a prospecting licence, and the only person who had applied was Chatter Gun Gujral and he was entitled, under Rule 18, to the grant of prospecting licence. His prospecting licence, therefore, cannot be challenged. If once a prospecting licence has been granted, it would be difficult to grant a mining lease for the same area.
So far as the mining lease is concerned, no mining lease appears to have been granted to any one and, therefore, no question of grant of any mining lease arises at all. If a mining lease had been granted to some one, who had applied for it later, in preference to the petitioner, there may have been something to be said on the basis of Rule 32. But Rule 32 does not say that a mining licence has got to be granted to someone and that someone must be the person who has applied earliest. It only says that if a lease is to be granted, preference should be given tp one who has applied earlier. But if the Government decides not to grant mining leases at all, I do not think that this Court can compel the Government to grant leases of its own land. Under the circumstances there cannot be any objection to the Government refusing to grant mining lease to the petitioner.
13. As regards the lease granted to Mr. Sharma, as I have already mentioned, it is neither a prospecting licence nor a mining lease and, therefore, the present petitioner cannot get this right which has been given under an entirely different kind of lease. So far as collecting lime-stone is concerned, there is no provision like Rule 32 that priority is to be given to one who has applied for collecting lime-stone. Moreover, the present petitioner had never applied for it and the only applicant appears to be Mr. Sharma for that purpose and under the circumstances that lease also cannot be questioned.
14. I see no force in this petition; it is accordingly dismissed with costs.