1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR LETTERS PATENT APPEAL NO.46 OF 2010 IN WRIT PETITION NO.2845 OF 2008 (Altaf Ahmed s/o A. Majeed Ahmed vs. State and others) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri S. Zia Qazi, Advocate for the appellant. Shri A.S. Fulzele, Assistant Government Pleader for the respondent nos. 1 and 2. Shri P.C. Madkholkar, Advocate for the respondent no.4. ------ CORAM : D.B. BHOSALE AND P.B.VARALE, JJ. DATED : JUNE 24, 2010 This letters patent appeal is directed against the judgment and order dated 3.8.2009 passed by the learned Single Judge in Writ Petition No.2845/2008 whereby the petition filed by the appellant challenging the order dated 3/1/2008 in Case No.49/0407 passed by the Hon'ble Revenue Minister, Government of Maharashtra confirming 2 the order made by the Collector granting lease to respondent nos. 4 to 6 came to be rejected. Shri Qazi, learned Counsel for appellant, at the outset, invited our attention to Rule 39-C of the Bombay Minor Mineral Extraction Rules, 1998 (for short, “the Rules). Under this Rule, prior recommendation of the Panchayat or Panchayat Samiti or Zilla Parishad, as the case may be, is required before granting lease for extracting minor minerals in the scheduled areas. In view thereof, he submitted that in the present case, prior recommendation of the Panchayat ought to have been obtained by the Collector before considering the applications before him in respect of Khasra No.195. The learned Single Judge has rejected this submission by recording his reasons in paragraph (6) of the order. Paragraph (6) reads thus : “6. This Rule opens with non obstante clause. The effect of the said clause is such that the competent officer does not even get authority to grant any licence or mining lease except with the prior recommendation of the Panchayat. 3 Looking to the above wordings of the Rule, I have no hesitation in holding that the recommendations of Panchayat by way of No Objection Certificate along with the application is a pre-requisite and that provision is mandatory. Further submission of Mr. Rizwy that it is for the Government Officers to run after the Panchayats and get such recommendations is wholly misconceived. This Rule does not anywhere indicate adoption of such course. It is for the applicant to produce the required documents including the recommendations, working map, etc. along with the application. In the present case, petitioner has failed to provide recommendation of Gram Panchayat along with the application form. It is he who must thank himself. In my opinion, the application filed by him for grant of lease was incomplete and incompetent and could not have been accepted by Collector. The submission made by Mr. Rizwy therefore that such a recommendation was not required, is rejected.” We do not find any reason to disagree with the view expressed by the learned Single Judge. Learned Counsel for appellant further submitted that recommendation/no objection certificate as contemplated by Rule 39-C of the Rules was necessary only to see whether a particular land is available for extraction of minor minerals and 4 once such recommendation/no objection certificate is on record, irrespective of the fact as who placed it on record, the concerned Authority should consider all applications in respect of a particular site, even if “no objection certificates” were not filed along with the applications. In other words, he submitted that rejection of the appellant's application on the ground that recommendation/no objection certificate from the Gram Panchayat was not placed along with application was wrong since such recommendation/ no objection certificate was placed on record by the respondent nos. 4 to 6 along with their applications. There is no dispute that “no objection certificate” was issued by the Gram Panchayat in favour of respondent nos. 4 to 6. The appellant wanted benefit of the said “no objection certificate” to be extended to him also by examining his case on merits. Such contention was not urged before the learned Single Judge. There is nothing on record to show that how many applications, apart from the appellant, were before the Collector at the relevant time and what was the nature of “no objection certificate” on record and since such material is not 5 before the Court, it is not possible to appreciate this contention for the first time in this appeal. That apart, the lease granted in favour of respondent nos. 4 to 6 is for five years and about four years have already passed. In the circumstances, we find no merit in the appeal and hence, the same is dismissed. JUDGE JUDGE khj