Over 2 lakh Indian cases. Search powered by Google!

Case Details

SATYA DEO DIKSHIT & ANOTHER versus STATE OF U.P.& OTHERS

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


Satya Deo Dikshit & Another v. State Of U.P.& Others - WRIT - C No. 39234 of 2002 [2007] RD-AH 9679 (21 May 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

   Reserved

  Court No.35

Civil Misc. Writ Petition No. 39234 of 2002

Satya Deo Dikshit and another

     Versus

 The State of U.P. & others  

Hon.R.P.Misra, J.

Hon.Shishir Kumar, J.

The present writ petition has been filed in the nature of mandamus declaring the Uttar Pradesh Minerals (Prevention of Illegal Mining Transportation and Storage) Rules, 2002, as prospective in its operation.  Further a writ in the nature of  mandamus directing the respondents not to interfere in the storage, selling and transporting of morrum, stored by the petitioners prior to coming into force of new Rules.

The brief facts of the case are that the petitioners are traders of sand/morrum and gitti.  Petitioner No.1 stored minor minerals on plots No.105 and 106 in village Badanpur, Tehsil and District Hamirpur for the purposes of selling it in the open market.  Petitioner No.2 has stored minerals on plots Nos. 76 and 77 belonging to one Sri Kamesh Chaurasiya in village Shitalpur, plots Nos. 78 and 333 belonging to one Sri Laxmi Narain Singh in Tehsil- Helapur and plot No.354/2 belonging to one Sri Ram Kishun in village Kanauta in Tehsil & District Hamirpur.   The petitioners purchased the above mentioned minerals from the open market and also from various lease/permit holders in the district Hamirpur and Mahoba for selling to various customers who take into for the purposes of private consumption.  The petitioners purchase the said minerals from the lease holders and transport it to the business places.  On 22.2.2002, the petitioner No.1 received a notice from the mines officer by which the petitioners were directed to clarify the position of genuineness of the stock of morrum.  According to the notice under Section 4(1-A) of the Act, no person can stock or transport minerals without permission, otherwise action will be taken under Section 21 of the Act.

Since no rules were framed regulating the storage of minor minerals, petitioners filed a writ petition before this Court and a Division Bench of this Court passed the following orders:-

"Heard the learned counsel for the parties.

 It has been alleged in para 9 of the writ petition that no rules have been framed under section 4 (1-A) of the Mines and Minerals (Regulation and Development) Amendment Act, 1999 and hence there is no ban to storage of sand.

In the circumstances, we direct that the respondents shall not interfere with petitioner's storage of sand unless some rules have been made under Section 4(1-A) of the Act prohibiting or regulating such storage in which case those rules have to be followed."  

That subsequently on 23.8.2002, further direction was issued to the respondents not to interfere with the transportation and selling morrum except in accordance with law.  Now the State Government in purported exercise of powers  under Section 23-C of the Mines and Minerals (Development and Regulation), 1957 (hereinafter referred to as the Act), has framed the Uttar Pradesh Minerals (Prevention of Illegal Mining Transportation and Storage )Rules, 2002, which has been published in the official gazettee on 2.9.2002.  After framing the aforesaid rules, the respondent No.2 the District Magistrate Hamirpur without giving any show cause notice to the petitioners had directed the mines officer, Hamirpur not to permit the petitioners to transport or sell the stock of minerals stored by them, prior  to coming into force the new rules, since according to the respondent No.2, the stock of minerals stored by the petitioners have become illegal in view of the provisions of Rule 11 of the new Rules, which provides for obtaining a license prior to the storing of any mineral.  The petitioners have been storing the minerals prior to the coming into force the new rules and the new rules does not provide for disposal of minerals stored prior to coming into force of the new rules, as such, the new rules are not applicable on the stock of the minerals already stored by the petitioners.  Any person who commits  a breach of the new rules and the provisions of Section 4(1-A) of the Mines and Minerals (Regulation and Development) Act, 1957, under which the new rules have been framed, shall be punished under Section 21 of the Act with imprisonment for a term which may extend for two years or with fine which may extend to Rs.25,000/- or with both .  Section 4 (1-A) and Section 21 (1) are being quoted below:-

"Section 4(1-A) - No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.

Section 21(1)  - Whoever contravenes the provisions of sub-section (1) or sub-section (1-A) of Section 4 shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twenty-five thousand rupees, or with both."

Since storage of minerals without obtaining a license entails penal consonance under the provisions of the Act and the rules framed thereunder,   the nature of new rules cannot be retrospective in operation and will not apply on minerals already stored by the petitioners, prior to the coming into force of new rules that is  on 2.9.2002.  The action of the respondents in preventing the petitioners from disposing of stock of morrum stored prior to the coming into force of the new rules is wholly illegal, arbitrary and without authority of law.  The intention of the legislature while amending the aforesaid  Section 4 was to safeguard its royalty, which was being evaded by the lease and permit holders by storing minerals within the mining area and removing them  after expiry of mining lease or permit, without any payment of royalty.

The further submission has been made by the petitioners that the respondent No.2  District Magistrate, Hamirpur without giving any show cause notice to the petitioners,  has directed the authority not to permit the petitioners to transport or sell the stock of minor minerals stored by them, prior to coming into  force  of the new Rules.  According to the respondents the stock of minor minerals stored by the petitioners is illegal in view of the provisions of Rule 11 of the new Rules, which provides for obtaining a licence  prior to storing of any mineral.  Moreover, the new rules does not brought  for disposal of minerals stored prior to coming into force of new rules, therefore, the new rules are not applicable on the stock of the minerals already stored by the petitioners. As the new rules, storage of minerals without obtaining a licence entails penal consequences, therefore, the nature of new rules cannot be retrospective in operation.  The intention of the legislature while amending the aforesaid Section 4 is for the purposes of safeguarding its  royalty which was being evaded by the lease and permit holders by storing minerals within the mining area.  The substantive law is only prospective in its operation and will not apply retrospectively.  The action of the respondents are in clear violation of principle of natural justice.

The writ petition was entertained and by order dated 13.9.2002, the learned Standing Counsel granted time to file counter affidavit and the respondents were directed not to interfere in transportation and sell of morrum by the petitioners stored prior to coming into force of the new rules.

The petitioners have placed reliance upon a judgement in M.P. Contractors Sangh, Indore and others Vs. State of Madhya Pradesh and others reported in AIR 1987, Madhya Pradesh 74.  Taking support of the aforesaid decision, the learned counsel for the petitioners submits that admittedly, the minor minerals removed from the quarries is the property of the Government.  There is no dispute to this effect that minerals excavated from the quarries cannot be removed therefrom without payment of royalty.  It is the duty of the State Government to protect its property  and to see that no theft of minor minerals is committed nor such minor minerals are removed therefrom without payment of royalty.  The Division Bench of the Madhya Pradesh has  held that in absence of term in contract or rule framed thereunder, the Government cannot insist that contractor  should produce  royalty paid receipts before his bills are cleared for payment.  It is the duty of the state Government to engage adequate staff to avoid thefts to minor minerals from the quarries.  Reliance has been placed upon para 13 of the said judgement.  The same is being quoted below:-

"13. Admittedly the minor minerals removed from the quarries is the property of the Government. It is also not in dispute that such minor minerals excavated from the quarries cannot be removed therefrom without payment of  royalty.  The quarries also undisputedly belong to the Government. Therefore, it is the duty of the Government to protect its property and see that no theft of minor minerals is committed nor such minor minerals are removed therefrom without payment of royalty.  It is the duty of the State Government to keep adequate staff at every quarry so that an effective control and check could be put up and the leakage could be avoided.  We are surprised at the argument advanced by the learned Government Advocate that because only one Chowkidar is posted at the quarry to check the removal of the minor minerals from the quarries and that because at times he is not available on the spot  that such thefts are being committed.  Therefore, it is clear that the State Government is aware of the fact and in what circumstances minor minerals are being removed without payment of royalty.  As a matter of fact the concerned Department in order to have an effective check should keep adequate staff and in fact call upon the quarry holder to pay royalty after the minor minerals are excavated and before they are removed from the place. But, in our opinion, this cannot be a valid argument that because the Government is not able to put up an effective check or control, for which they are alone responsible, the building contractors should produce the royalty paid receipts before their bills are cleared for payment at least in those cases where the minor minerals are supplied by such contractors through petty contractors or to her merchants.  It is for the Government to engage more staff and see that no such thefts are committed, though it also cannot be and was not disputed that it is the duty of every citizen to help the Government in its laudable efforts.  But , in our opinion, merely because the Government is not in a position to check such thefts, a doubt cannot be cast on the building contractors nor they could be blamed for that.  If the Government wants to adopt such a measure so far as such building contractors are concerned, then the State Government ought to make such a provision in the contract entered into with such building contractors or they should make rules to that effect under the provisions of the said Act so that a building contractor who is given such Government contract will be duty bound to obtain the royalty paid receipt and submit the same or in such minor minerals from the quarry holders themselves directly.  It is, therefore, difficult to agree with the submission made by the learned Government Advocate that, vide Annexure R2 or Annexures A and B the respondents have taken administrative steps to implement Annexure RI."

A counter affidavit has been filed on behalf of the respondents.   It has been submitted that the petitioners are not able to produce any certificate or any document to this effect that from whom this mineral has been purchased.  Whether the minerals which are stored by the petitioners for the purposes of selling to the customers is after payment of royalty or not.  Under the U.P. Minor Minerals (Concession) Rules, 1963, according to rule 70 there is a restriction of transporting of minerals.  The holder of mining lease or permit or a person authorised by him in this behalf may issue a pass or Form MM-11 to every person carrying a consignment of mineral by a vehicle, animal or any other mode of transport.  Sub Clause 2 of Clause 70 clearly states that no person shall carry, within the State, a minor mineral by a vehicle, animal or any other mode of transport, excepting railway, without carrying a pass in Form MM-11 issued by Sub Rule (1). It further provides that every person carrying any minor minerals shall, on demand by any officer authorised under Rule 66 or such officer as may be authorised by the State Government in this behalf, show the said pass to such officer and allow him to verify the correctness of the particulars with reference to quantity of the minor mineral. Further it provides  that any person found to have contravened any provision of this rule is liable for punishment.

The storage which has been done by the petitioners is in contravention of the provision of the Rules.  The petitioners have not disclosed any source that from where they have purchased it, therefore, there is a clear possibility that they are selling the minerals without payment of royalty. The petitioners without obtaining any permission has stored the minerals  without payment of royalty which is not permissible. As such, a notice was given but the petitioners have not submitted any reply to this effect specifying the reasons what they are stating before this Court.  The petitioners were given notice under Section 70 of the Rules and in case the petitioners were aggrieved they should have filed an appeal  under Rule 77 of the Rules.  The petitioners have clearly violated the provision of Uttar Pradesh Minerals (Prevention of Illegal Mining Transportation and Storage) Rules 2002.  If the stock which has been kept by the petitioners is prior to 2.9.2002, the liability of the petitioners is to specify the authorities regarding the stores of minerals that from whom they  have purchased.  As the petitioners have not submitted any document and has not produced form MM-11 therefore, the stock kept by the petitioners will be treated to be unauthorised and they are liable for payment of royalty.  The petitioners have also not submitted any document to show that they have been registered or have been permitted to stock the minerals and they are registered traders. The storing the minerals is offence under Section 4 (1-A) of the Act.  The petitioners have not produced any document to show that the storage of minerals is prior to 2.9.2002.  The introduction of new rules of 2002  is not only to safeguard its royalty which was being evaded by lease and permit holders by storing minerals within the mining areas and removing them  after expiry of mining lease or permit without payment of royalty.  It has been introduced for that purposes also to those persons who are indulge in such business without any permission from the State Government.  

In view of the aforesaid fact, the respondents submits that the petitioners have got no case and the writ petition is liable to be dismissed.

We have heard Sri Mukesh Prasad,learned counsel for the petitioners and learned Standing Counsel and have perused the record.

From the record, it appears that the petitioners are involved in purchase and selling the minerals which are being purchased by the petitioners from various lease permit holders in the districts of Hamirpur and Mahoba for selling it to the various customers who take the minerals for private consumption.  It appears that in spite of the restriction there was no check, therefore, the State Government think it proper to frame rules as Uttar Pradesh Minerals (Prevention of Illegal Mining Transportation and Storage) Rules 2002 which clearly provides that there will be a restriction for transport, carry or cause to be transported, carried any mineral by any means from its raising place to any other place without a valid transit pass issued by the holder of mining lease or the mining permit or prospecting license as the case may be.  Therefore it is clear that after enforcement of the aforesaid rule, which was published in gazettee notification dated 2nd September, 2002 after the said date any person cannot transport, carry or cause to be transported minerals without obtaining any permit or valid transit pass.  But prior to that there was a provision of Section 4 (1-A) of the Mines and Minerals (Regulation and Development) Act 1957,  that no person shall transport or store or cause to be transported  or stocked any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.  Rule 70 of the U.P. Minor Minerals (Concession) Rules, 1963 also puts a restriction of transporting of minerals which restricts that no person shall carry, within the  State, a minor mineral without carrying a pass in Form MM-11.  The submission of the learned counsel for the petitioners is that Section 4 (1-A) of the Mines, Minerals (Regulation and Development) Act, 1957 has been inserted by Amendment  Act 1999 provides that no person shall transport or store or cause to be transported or stocked any minerals otherwise than in accordance with the provisions of this Act and the rules made thereunder.  It was submitted by the petitioners that Section 4 (1-A) is enabling provision and cannot be enforced unless rules are made making it obligatory to obtain  a license or permit to store or cause to be transported or stored any mineral by a person not being to lease or permit holder.  The contention  of the petitioners was that no such rules have been framed  under the Act either by the Central Government or by the State Government which prohibits the storing and selling of the minerals by wholesale or retail dealers who are not lessee  or permit holders and who are not carrying on their business outside the mining areas.  The expression otherwise than in accordance with the provisions of the Act and rules made thereunder occurring in Section 4 (1-A) of the Act is significant in the sense that if both the Acts and Rules are silent about the procedure for transportation or storage etc. then Section 4 (1-A) of the Act may be challenged on the ground of vagueness and arbitrariness.  From the perusal of the Act and Rules of 1957 and 1963, no rules have been framed either by the Central Government or by the State Government.

Admittedly, the legislature has framed rules which were notified in September, 2002.  Now the question is for consideration by this Court is whether a person  involved in selling the minerals after purchasing it from the lease holders and stored it in his go-downs  for selling it to the customers whether it can be called as an offence in view of the provision of Section 4 (1-A) of Act, 1957 or in view of the provision of Rule 70 of 1963 Rules, because 63 rules clearly provides that immediately after excavation of minerals from the quarries, Form MM-11 is necessary and it cannot be sent outside the mining area unless and until the royalty is paid and unless and until  the requirement given in Form MM-11 is complete.  There is also a criteria that two counter filed by MM-11 form will be given to the person in charge of consignment, one of which will be removed by the Government servant for checking the pass.  It clearly indicates that immediately when the minerals is excavated and it is shifted to other place the royalty has to be paid because if a person who is like petitioner in storing the minerals and selling  it to the customers they will get only a receipt of purchase of the articles  and they will not be able to get any royalty receipt. As the petitioners do not purchase  these articles or excavate in whose favour the  auction is knocked down by the government. As the government has fixed the rate of royalty which is to be paid before the goods are taken out  by the purchaser from the quarries and the persons who purchase these articles from the quarries in terms to  sale them to different persons.  In this way these goods were coming to the market through several hands with the result that obviously the subsequent purchaser do not have and cannot have the royalty pay receipt relating to these articles.

Admittedly, after September, 2002, after coming into force of the Uttar Pradesh (Prevention of Illegal Mining Transportation and Mining) 2002 there is a requirement that no person will be involved in transport, carrying or cause to be transported any minerals without obtaining any license and if they violates the provisions of the aforesaid rules, they are liable for punishment.  Sub Clause 2 of Clause 5 also provides that the holder of license for storage of minerals shall issue the transit pass in Form C for lawful transportation of minerals from the storage. The power has also been given in the aforesaid rules for inspection and seizure by him to the person from whose possession or control, it is seized.  A procedure to this effect regarding obtaining license has also been provided.  From the perusal of the aforesaid rules, it is also clear that it will be effective from the date of gazettee notification dated 2nd September, 2002 not prior to that date.  Admittedly, the nature of the aforesaid rules  are not retrospective then whether without framing any rules, whether the respondents can charge royalty of storage of minerals, cannot be sustained.

In view of the aforesaid fact and circumstances of the present case, we are of the view that the minerals stored by the petitioners prior to second of September 2002 for the purposes of selling it to customers will not be a n offence  or they are not liable to pay any royalty.

In view of the aforesaid fact, the writ petition is allowed.  The  respondents are restrained from recovering any amount of the stock of minerals, stored by the petitioners prior to 2nd of September, 2002.  It is open to the respondents to proceed according to the aforesaid rules  in case it is found that stock is subsequent to 2nd September, 2002.

No order as to costs.

Dt. May   21  , 2007

SKD                          


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.