Research › Search › Judgment

Allahabad High Court · body

2008 DIGILAW 2480 (ALL)

RAJ KARAN NISHAD, ETC v. STATE OF UTTAR PRADESH

2008-12-05

A.P.SAHI, AMITAVA LALA

body2008
JUDGMENT By the Court.—The petitioners in all the three writ petitions have come up assailing the vires of the amended Rule 10 of the U.P. Minor and Mineral (Concession) Rules, 1963, a copy of the Notification containing the said Rule dated 22nd June, 2004 is on record of the leading writ petition as Annexure 1 To appreciate the controversy, the existing rule and the substituted rule are reproduced below : “3. Amendment of Rule 10.—In the said rules, for Rule 10 set out in Column-I below, the rule as set out in the Column-II below, shall be substituted, namely : Column I Column II Existing rule Rule as hereby substituted 10. Maximum area for which a 10. Maximum area for which a mining lease may be granted : mining lease may be granted : No person shall acquire in res- No person shall acquire in res- pect of any minor mineral one pect of any minor mineral, or more mining leases covering except sand or morrum or a total area of more than thirty bajri or boulder or any of acres : these in mixed state, one Sa Audyogik Vikas-2 or more mining leases co- vering a total area of more than thirty acres : 2. Sri Dev Brat Mukherjee, learned counsel for the petitioners, contends that the State Government had no legislative competence to amend the said rules inasmuch as the amendment runs counter to Section 2 of the Mines and Mineral (Regulation and Development) Act, 1957. To appreciate the said submission, Section 2 of the said Act is quoted below : “2. Declarations as to expediency of Union Control.—It is hereby declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided.” 3. It is urged that the rule making power conferred on the State under Section 15 of the 1957 Act does not allow the State to bring about any such amendment by creating a different class. It is urged that the exception in respect of the minor minerals namely sand, morrum, bajri and boulder or any one of these in mixed state has been carved out, which is irrational and on the other hand, it tends to create a monopoly of settlement in large areas. It is urged that the exception in respect of the minor minerals namely sand, morrum, bajri and boulder or any one of these in mixed state has been carved out, which is irrational and on the other hand, it tends to create a monopoly of settlement in large areas. This according to Sri Mukherjee would deprive small intenders like the petitioners from participating in any process of grant of permit or lease inasmuch as Mafias would enter the field and would eclipse the hope of the petitioners. He has further submitted that the petitioners belong to Boatmen Community and, therefore, they have a preferential right under Rule 9(2)(e) which preferential right would also stand obliterated in case the rules are allowed to stand. Reliance has been placed by the learned counsel for the petitioners on three judgments : (1) AIR 1961 SC 459 (Para 23), Hingir-Rampur Coal Co. Ltd. and others v. State of Orissa and others. (2) AIR 1964 SC 1284 (Paras 5, 11 and 12), State of Orissa and another v. M/s. M.A. Tulloch and Co and another, and (3) AIR 1970 SC 1436 (Paras 11 to 21), Baijnath Kedia v. State of Bihar and others. 4. On the other hand, the learned Standing Counsel urged that the provisions of Section 15 of the 1957 Act clearly empower the State Government to frame the rules and the amendment brought about in Rule 10 is neither beyond the legislative competence of the State nor does it create any monopoly or impinge the fundamental rights guaranteed under Articles 14 and 19 of the Constitution of India. He further submits that none of the legal rights of the petitioners are affected in any way and the opening up of the area in larger tracts is in the interest of the State and in order to ensure the maximum return of revenue to the State. 5. We have heard learned counsel for the parties in all the three writ petitions and have perused the Notification bringing about the amendment. The said rules have been framed in exercise of the powers under Section 15 of the 1957 Act. Section 15 of the Act 1957 recites as follows : “15. 5. We have heard learned counsel for the parties in all the three writ petitions and have perused the Notification bringing about the amendment. The said rules have been framed in exercise of the powers under Section 15 of the 1957 Act. Section 15 of the Act 1957 recites as follows : “15. Power of State Government to make rules in respect of minor minerals.—(1) The State Government may, by notification in the official Gazette make Rule for regulating the grant of quarry leases and mining leases or other mineral concessions in respect to minor minerals and for purposes connected therewith. Section 15 of the Act 1957 recites as follows : “15. Power of State Government to make rules in respect of minor minerals.—(1) The State Government may, by notification in the official Gazette make Rule for regulating the grant of quarry leases and mining leases or other mineral concessions in respect to minor minerals and for purposes connected therewith. (1-A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely : (a) the person whom and the manner in which, applications for quarry leases and mining leases or other mineral concessions may be made and the fees to be paid therefor; (b) the time within which, and the form in which, acknowledgment of the receipt of any such applications may be sent; (c) the matters which may be considered where applications in respect of the same land are received within the same day; (d) the terms on which, and the conditions subject to which and the authority by which quarry leases, mining leases or other mineral concession may be granted or renewed; (e) the procedure for obtaining quarry leases, mining leases or other mineral concessions; (f) the facilities to be afforded by holders of quarry leases, mining leases or other mineral concession to person deputed by the Government for the purpose of undertaking research or training in matters relating to mining operation; (g) the fixing and collection of rent, royalty, fees, dead rent, fines or other charges and the time within which and the manner in which these shall be payable; (h) the manner in which rights of third parties may be protected (whether by way of payment of compensation or otherwise) in cases where any such party is prejudicially affected by reason of any prospecting or mining opera-tions : (i) the manner in which rehabilitation of flora and other vegetation such as trees, shrubs and the like destroyed by reason of any quarrying or mining operation shall be in the same area or in any other area selected by the State Government (whether by way of reimbursement of the cost of rehabilitation or otherwise) by the person holding the quarrying or mining lease; (j) the manner in which and the conditions subject to which, a quarry lease, mining lease or other mineral concession may be transferred; (k) the construction, maintenance and use of roads, power transmission lines, tramways, aerial, ropeways, pipelines and the making of passage for water for mining purposes on any land comprised in a quarry of mining lease or other mineral concession; (l) the form of registers to be maintained under this Act; (m) the reports and statement to be submitted by holders of quarry or mining leases or other mineral concession and the authority to which such reports and statements shall be submitted; (n) the period within which and the manner in which and the authority to which applications for revision of any order passed by any authority under these rules may be made, the fees to be paid therefor, and the powers of the revisional authority; and (o) any other matter which is to be, or may be, prescribed. (2) Until rules are made under sub-section (1), any rules made by a State Government regulating the grant of quarry leases, and mining leases or other mineral concessions in respect of minor minerals which are in force immediately before the commencement of this Act, shall continue in force. (3) The holder of a mining lease or any other mineral concessions granted under any rule made under sub-section (1) shall pay royalty or dead rent, whichever is more in respect of minor mineral removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee at the rate prescribed for the time being in the rules framed by the State Government in respect of minor minerals : Provided that the Government shall not enhance the rate of royalty or dead rent in respect of any minor mineral for more than once during any period of three years.” 6. A perusal of the said provisions leaves no room for doubt that the State Government has ample powers to frame rules on the subject as referred to in particular in sub-section (1-A) of Section 15 of the Act 1957. The said rule, in our opinion, encompasses the extent and area and the manner in which any minor mineral has to be settled by way of a lease. Section 2 of the Act, in our opinion, is a declaratory provision empowering the Central Government to take under its control and regulate to the extent provided under the Act. The same Act under Section 15 provides for framing of rules. Section 2 of the Act does not in any way abridge the authority of the State to frame rules on the subjects as provided for under Section 15 of the Act. We were unable to find out any repugnancy between the amended rule under challenge and Section 2 of the 1957 Act. In our opinion, merely because there is an apprehension of creation of a monopoly without there being any facts available on record to support the same, the amendment in the rule cannot be said to be hit by any of the provisions of Part-III of the Constitution of India. It is to be noted that the rules were floated in the year 2004, and has lasted for more than 4 years successfully without there being in successful challenge to the same. It is to be noted that the rules were floated in the year 2004, and has lasted for more than 4 years successfully without there being in successful challenge to the same. Thus, we neither find any want of legislative competence or any element of violation of fundamental rights, Constitutional rights or legal rights so as to declare the amended rule ultra-vires. 7. The judgments which have been cited on behalf of the learned counsel for the petitioner do not in any way lay down that the rule can be struck down as ultra-vires even if no repugnancy can be demonstrated. According to the Schedules under the Constitution, particularly entry 23 of list 2 and entry 54 of list 1, the Central Government has been empowered to regulate and control the settlement of mining operations subject to the rules framed by the appropriate legislature in this regard. As pointed out hereinabove, the rules under challenge derive their source and authority from Section 15 of the 1957 Act and upon a careful scrutiny of the same, it cannot be said that the State Government has trenched upon the powers of the Central Government or has stepped out of its jurisdiction to frame the rules. There is no material which would indicate that the Central Government has retained absolute authority for framing of such rules or any rules exist to the contrary. On the other hand, the conclusions drawn hereinabove on the basis of the recital contained in Section 15, there can be no doubt that State Government was well within its competence to amend the rules. 8. The argument that one cannot be permitted to do indirectly what is prohibited to be done directly, is totally unfounded and has no basis. 9. Apart from this, it is still open to the petitioners to participate for grant of lease in case there is a Notification under the 1963 Rules. 10. The writ petitions lack complete merit and are hereby dismissed. 11. However, no order is passed as to costs. ———