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Madhya Pradesh High Court · body

2008 DIGILAW 300 (MP)

NAIN SINGH v. STATE OF MADHYA PRADESH

2008-02-25

R.S.GARG, S.C.SHARMA

body2008
Judgment ( 1. ) BY this petition under article 226 of the Constitution of India, the petitioners are challenging the constitutional validity of the amendment made in M. P. Minor Mineral Rules, 1996, published in M. P. Gazette dated 30-5-2001 (Annexure-P/5)and are also challenging the correctness, validity and propriety of the communication dated 31-12 2001 (Annexure-P/6) and the order dated 6-2-2002 (Annexure-P/8) under which the quarry permit issued in favour of the Society of which the present petitioner is the President was cancelled. ( 2. ) ACCORDING to the learned counsel for the petitioners, the original Chapter-VI of m. P. Minor Mineral Rules, 1996 containing rule 38 (4) which related to preferential right reads as under :- "38 (4) A quarry permit shall be granted only to the residents of the Panchayat where the quarry is located in the following order of preferences :- (a) Co-operative Society/ Association of scheduled Tribe / Scheduled Caste. Backward Classes, educated unemployed youths or individuals where more than 50 percent of the members belong to the concerned category and also where the executive committee have representation in the ratio of the members of the concerned category and hail from below poverty line families listed in the district Rural Development Agency or educated unemployed youth belonging to scheduled Tribe/scheduled Caste/backward classes in that order; (B) An educated unemployed youth belonging to below poverty line families listed in the District Rural Development Agency; (c) any other person belonging to below poverty line families listed in the District development Agency; (d) Any other applicant. " ( 3. ) THE say of the petitioner is that the society headed by him is a Co-operative Society. The members of which are belonging to Scheduled Tribe and in view of preferential rights they were entitled to and were infact granted the quarry permit. According to them, vide Gazette Notification No. F-19-10-99-XII-2 published on 30-5-2001, original Chapter-VI has been amended and instead of grant of quarry permit on basis of preferential rights, the quarries are required to be auctioned. According to them, vide Gazette Notification No. F-19-10-99-XII-2 published on 30-5-2001, original Chapter-VI has been amended and instead of grant of quarry permit on basis of preferential rights, the quarries are required to be auctioned. The submission of the petitioner is that the validity of their permit was upto 23-3-2002 but before the expiry of the period vide order dated 6-2-2002, the quarry permit was cancelled and this action on the part of the respondent is bad, firstly because the petitioners were not allowed to exploit the permit till the date of expiry and because the provisions of Rules 36 to 40 as amended, are ultra vires the constitution. ( 4. ) A perusal of Rule 38 (4) would make it clear that a quarry permit was required to be granted only to the residents of the panchayat where the quarry is located, in a particular order of preference. Undisputedly, the preference were fixed by the State Government and the present petitioners became beneficiary under the said policy /rules. The state Government vide Annexure-P/5 has made certain amendments in the M. P. Minor Mineral rules. 1996. It appears that the action of the Government in changing the preferences was to earn more revenue in favour of Gram Panchayats, Janpad panchayats and Zila Panchayats who in their i turn are required to provide facilities and amenities to the local residents. ( 5. ) WHEN some preference and priorities are given, grant of preferences and priorities can always be withdrawn by the competent Government because the Government giving it would always be entitled to say that such people would not be entitled to preference. One must not forget that there is always a distinction between benefits flowing from a policy of reservation and a policy relating to preferences or priorities. In case of the reservation a policy is made for giving the benefits but in case of priority or preference there is no right except some better rights are conferred upon a particular class which otherwise stand equal with all the others. In the present case, if the Government felt that the quarry should be auctioned so that the Panchayats which are engaged in the public welfare etc. are benefited then no wrong in the policy should be found. ( 6. In the present case, if the Government felt that the quarry should be auctioned so that the Panchayats which are engaged in the public welfare etc. are benefited then no wrong in the policy should be found. ( 6. ) SO far as the argument of the petitioner in relation to distributive justice is concerned, the same should not detain this court unnecessarily because the policy/ principles of distributive justice would have no application in this case. Assuming for a minute that such policy is applicable to the present case then the benefit should always flow in favour of the large number of people in comparison to a small body which is a part of the society. ( 7. ) ONCE it is held that the policy is valid and the amendment in the rules is not ultravires then the action taken by the respondents cant be challenged as bad. ( 8. ) TAKING into consideration the totality of the circumstances and the policy of the government we are unable to hold that the provisions contained in Chapter-VI which relate to "grant of Trade Quarries" are ultra vires the Constitution or offend the spirit of the Constitution of India. ( 9. ) THE petition deserves to and is accordingly dismissed. Petition dismissed.