R.P. Misra and Shishir Kumar, JJ.@mdashThe present writ petition has been filed for issuing a writ of certiorari quashing the order dated 26.12.2005, which was issued in pursuance of amended Rule 10 of U.P. Minor Mineral Rules 1963. Further issuing a writ in the nature of mandamus declaring the amended Rule 10 of U.P. Minor Mineral Concession Rules 1963, as ultravires, which was incorporated in the Rules by twenty six amendments. Further issuing a writ in the nature of mandamus directing the respondents to renew the mining lease of the petitioner for Lot No. 5 of Aarzi No. 1 of Village Pardrach, Tehsil-Robertsganj, District, Sonbhadra in pursuance of the order passed by the learned appellate authority dated 16.6.2006.
2. The facts arising out of the present writ petition are that the petitioner by means of the present writ petition challenging the legality and validity of Rule 10 of the Rules, 1963, which was amended by (Twenty Six Amendment) Rules, 2004 vide notice dated 26.12.2005, which was issued under the aforesaid amended Rule by office of Respondent No. 2 by which he had consolidated the entire mining plot measuring area about 130 acres for grant of mining lease to a single person of his choice, which is totally unconstitutional and against the ambit and spirit of Mines and Mineral (Regulation and Development) Act, 1957, under which the aforesaid Rules of 1963, was enacted. The petitioner is engaged in the profession of excavation of Minor Mineral such as Moram and Sand, from river of District Sonebhadra and this is the only livelihood of the petitioner. Throughout the State of Uttar Pradesh the excavation of Minor Mineral is governed by U.P. Minor Mineral Concession Rule 1963, which is enacted u/s 15 of the Central Act known as Mines and Minerals (Regulation and Development) Act, 1957. According to Rules 1963, river bed side mineral such as, sand, moram is also one of the ''Minor Minerals'' defined under the aforesaid rule of 1963, as such, the said rule is applicable.
3. In the aforesaid rule there are two provisions of granting of concession. The first one is mining lease which comes under Chapter II of the aforesaid Rule 1963 and second one is auction lease which comes under Chapter IV of the aforesaid Rules, 1963. It is provided that the mining concession cannot be granted by way of Chapter II and Chapter IV simultaneously, it means that if Chapter II is applicable the procedure laid down under Chapter IV of the Rules shall not be applicable. On 30th December 2000, the entire area of Uttar Pradesh was declared for the grant of Mining lease and in pursuance of aforesaid Government Order, State Government withdraws auction lease system and imposed mining lease system according to Rule 24 of the Rules for the purposes of granting mining lease. In pursuance of the aforesaid Government Order, the availability of the area were further declared under Rule 72 of the Rules 1963 by various District Magistrate for grant of mining lease and same procedure was adopted by the office of the District Magistrate, Sonebhadra. On 19.1.2001 a public notice was issued by which applications were invited from the public at large for setting the various vacant mining area of District Sonebhadra by way of mining lease provided under Chapter II, of Rules 1963. The said notice clearly goes to show that applications were invited on prescribed proforma that is Form MM-I. In pursuance of the aforesaid notice, the petitioner moved an application on duly prescribed proforma for Lot No. 5 Arazi No. 1 of Village Pardrach, Tehsil Robertsganj, District- Sonebhadra on 27.1.2001 after completing the all requisite formalities. There was no other application neither of general category nor the category provided under Chapter 9-A of the Rules 1963 (at that time), as such, the petitioner was sole applicant for the aforesaid mining lot, mentioned above. The petitioner was granted the aforesaid lot for the purposes of mining lease by the respondent No. 2 on 27.2.2001. After fulfilling the criteria the petitioner was granted lease for the period 12.3.2001 to 11.3.2004 as on 12.3.2001 and he had started the mining business according to Rules. The lease of the petitioner was going to expire on 11.3.2004, as such, the petitioner had moved an application for renewal which was duly received by the office of respondent No. 2 on 8.9.2003. In spite of the best efforts made by the petitioner, the renewal application of the petitioner was not decided. Aggrieved by the aforesaid arbitrary action of the respondents, the petitioner preferred a Writ Petition No. 42200 of 2005 (Shiv Shankar and Ors. v. State of U.P. and Ors.) which was disposed of finally by its order dated 26.5.2005 directing the respondents to dispose of the application of the petitioner. In spite of the aforesaid order, the application for renewal of the petitioner was not disposed of within time as directed by this Court. Then on 5.12.2005, the application was disposed of without application of mind holding therein that as the initial lease which was granted in favour of the petitioner that was under Rule 9-A of the Rules, 1963, as such, it cannot be renewed. The petitioner submits that although the respondents have failed to understand that no preference was given to the petitioner, as the petitioner was a sole applicant of the aforesaid plot. Further it has been held that as Rule 9-A has been declared ultra vires on 27.3.2001, as such, there is no occasion to renew of the application of the petitioner. If the finding to this effect recorded by the respondent No. 2 assumes to be correct that the petitioner was granted mining lease under Rule 9-A which was subsequently declared ultra vires, then why the respondents have not cancelled the mining lease of the petitioner and has permitted to continue for its full tenure, which clearly goes to show that the aforesaid mining lease of the petitioner was not granted under Rule 9-A of the Rules. In Writ Petition No. 12578 of 2005 (Vijay Kumar Nishad v. State of U.P and Ors.), it has been held that where there is only one application for mining plot, it cannot be said that the mining lease was granted under the preferential right.
4. Aggrieved by the aforesaid order passed by the respondent No. 2 dated 5.12.2005, the petitioner preferred an appeal before the Commissioner, Vindhyachal Division, Mirzapur under Rule 77 of the Rules, 1963. The said appeal was allowed vide its order dated 16.6.2006 and the order dated 5.12.2005 was set aside and the respondent No. 2 was directed to pass appropriate orders on the renewal application of the petitioner. In spite of the aforesaid fact, no action was taken on the application filed for renewal by the petitioner. In the meantime the respondent No. 2 wanted to settled the mining area of the petitioner which has been consolidated along with other 12 plots to one of his favorites namely Devi Dayal Gupta S/o Sri Govardhan Das Gupta by ignoring and misinterpretation of Rules 1963 and recommended to grant entire mining area to the aforesaid person and recommended the same to the State Government for approval of the same. The petitioner submits that if the mining lease is finalized in favour of the person mentioned above, the petitioner will be deprived to get renewed of his mining lease. Further the respondents on 29.11.2005 have issued a notice for 13 mining lots of Arazi No. 1 for inviting application forms from 30.12.2005 and when the respondents found that many applications may be filed and the respondents will not be in a position to grant mining lease to their favourites, notice was cancelled and a further notice dated 24.12.2005 was issued. The notice shows that the respondents just wants to give the mining lease to one single person, which is more than 130 acres. The aforesaid action clearly shows the arbitrariness on the part of the respondents.
5. The respondents taking the shelter of amended Rule 10 of Rules 1963, for consolidating the entire mining lot of the village which consist of 130 acres and want to settle with one single person only and the effect of this will be to curtail the right of poor persons, cannot apply and get the mining lease of the aforesaid consolidated lot as the dead-rent of consolidated lot will be thirteen times high then single lot. The Petitioner''s lot No. 5 which was given to the petitioner has also been consolidated in the aforesaid impugned notice, as such, in spite of the order of the Commissioner dated 16.6.2006, the petitioner could not get renewed of his mining lease, if it is settled in favour of the respondent No. 4. It has further been submitted by the petitioner that Rule 10 was amended by way of 26 Amendments dated 22.6.2004 by which previous Rule 10 has been amended and power has been given to District Magistrate to grant mining lease for Moram and Sand for more than thirty acres, although regarding grant of mining lease of boulders and gitti were kept same. A bare perusal of the aforesaid amended Rule 10 clearly goes to show that it is a clear violation of Article 19(1)(g) of the Constitution of India as due to the aforesaid amended Rule, the District Magistrate can notify the entire mining area of the District after consolidating the same and can grant it to any one single person of his choice and no other poor person who is having an interest to get the mining lease shall be deprived to get the same. It clearly creates monarchy and as such, it is a clear interference and against the well settled principle of law as the District Magistrate has been authorized by the aforesaid amended Rule to grant mining lease by way of pick and choose policy. Due to the aforesaid amended Rule, a single person can get a mining lease of entire district which is not the ambit and spirit of the Act under which the aforesaid Rule of 1963 is framed shall be frustrated.
6. The rule making power of the State cannot travel beyond the statutory provisions of the Act which has already put restriction by way of mentioning maximum area regarding granting concession to the major minerals u/s 6 of Mines and Minerals (Regulation and Development) Act, 1957 but under amended Rules, the State Government can grant mining lease to any person of his choice irrespective the area, which clearly shows that they have amended aforesaid rule without legislative competency and against the norms of statutory provisions, as such, the aforesaid rule is not sustainable in law. But excessive power has been given by the amended rule to the Sanctioning Authority and there is no limit for area and also there is no limit for having lease by single person, as it relates to sand and morum. For the convenience of this Court, old Rule 10 as well as new Rule 10 and Section 6 of the Mines, Minerals (Regulation and Development) Act 1957 are being reproduced below:
Amended Rule 10 of 1963 Rules:
Maxinniin area for which a mining lease may be granted-
No person shall acquire in respect of any minor mineral, one or more mining leases covering a total area of more than thirty acres:
Provided that if the State Government is of opinion (hat in the interests of mineral development it is necessary so to do, it may for reasons to e recorded, permit any person to acquire one or more mining leases covering an area in excess of the aforesaid maximum of thirty acres.
Explanation- For the purpose of these rules, a person acquiring by or in the name of an other person a mining lease which is intended for himself shall be deemed to be acquiring it himself.
Amended Rule-
In the said rules, for Rule 10 set out in Column-I below, the rule as set out in Column II below, shall be substituted, namely:
Column I Column II
Existing rule Rule as hereby substituted
10, Maximum area for which 10. Maximum area for which
a mining lease may be granted: a mining lease may be granted:
No person shall acquire No person shall acquire in
in respect of any minor mineral respect of any minor mineral,
one or more mining leases covering except sand or morrum or bajri
a total area of more than thirty acres: or boulder or any of these
in mixed state, one or more
mining leases covering a total
area of more than thirty acres:
"Section 6. Maximum area for which a prospecting licence or mining lease may be granted-
(1) No person shall acquire in respect of mineral or prescribed group of associated minerals (in a State)-
(a) one or more prospecting licences covering a total area of more than twenty-five square kilometers; or
(aa)one or more reconnaissance permit covering a total area often thousand square kilometers;
Provided that the area granted under a single reconnaissance permit shall not exceed five thousand square kilometers, or
(b) one or more mining leases covering a total area of more than ten square kilometers:
Provided that if the Central Government is of opinion that in the interest of the development of any mineral it is necessary so to do, it may, for reasons to be recorded by it in writing, permit any person to acquire one or more prospecting licences or mining leases covering an area in excess of the aforesaid total area:
(c) any reconnaissance permit, mining lease or prospecting licence in respect of any area which is not compact or contiguous:
Provided that of the State Government is of opinion that in the interests of the development of any mineral, it is necessary so to do, it may, for reasons to be recorded in writing, permit any person to acquire a reconnaissance permit, prospecting licence or mining lease in relation to any area which is not compact or contiguous.
(2) For the purposes of this section, a person acquiring by, or in the name of, another person a (reconnaissance permit prospecting licence or mining lease) by a person as a member of a cooperative society, company or other corporation, or a Hindu undivided family or a partner of a firm shall be deducted from the area referred to in Sub-section (1) so that the sum total of the area held by such person, under a (reconnaissance permit prospecting licence or mining lease) whether as such member or partner, or individually, may not, in any case, exceed the total area specified in Sub-section (1).)
7. Act 1957 provides that while granting the lease the State will give preferential right to certain class of persons and under the aforesaid Act, the preferential right has to be given, therefore, by making the Rule as well as by way of amendment cannot be excessive power which is itself contradictory of the ambit and spirit of the Rules 1963. The amended Rule 10, State Government has made colourable exercise of his power, which is against the Act of 1957 and beyond the jurisdiction and legislative in-competency.
8. It is the duty of the respondents that if they want to invite the applications for mining lease by public notice, they must ascertain the mining area and further enquire whether sand are accumulated to that very area or not and inviting application and subsequently cancel the same on the basis of non-accumulation of sand clearly goes to show the malafide intention of the respondents. The petitioner submits that the entire mining lots of Village Pardrach, good sand is accumulated and various persons were interested to get the mining lease of 13 lots but the respondents by arbitrarily manner came to the conclusion that in various lots good-sand had not been accumulated as such, cancel the notice dated 29.11.2005, only to give the benefit to one person. Petitioner further submits that more than 30 acres mining lease cannot be granted by the District Magistrate, without recording a finding according to proviso of Rule 10, as such, the notice itself is bad inviting the total area of 130 acres,
9. In view of the aforesaid contention raised on behalf of the petitioner, the petitioner has raised three legal points for consideration by the Court.
(i) Whether amended Rule is ultra vires or not ?
(ii) Whether State Government under the Rule making power, empower to create monopoly ?
(iii) Whether the District Magistrate, Sonebhadra has power to consolidate entire mining plot of village Pardrach and settle it to only one single person by way of notice dated 26.12.2005?
(iv) Whether the lease of the person which was granted in the year 2001 is under Rule 9-A (at that time) as such, it could not be renewed ?
10. In support of the aforesaid contention the petitioner submits that amended Rule 10, the State Government empowered the District authorities to grant mining lease of river bed side for an infinite area, meaning thereby the district authorities can consolidate the entire mining area of their district into one single plot and can grant it to their favourites. Even the State Government also empower to consolidate the entire mining areas of State into one mining plot and grant it to only one single person, meaning thereby it creates monopoly, as far as mining lease of river bed side mineral is concerned. Emphasis has been given upon Ent. 23 of the list II of seventh schedule of the Constitution of India which provides Regulation of Mines and Minerals development subject to provision of list I with respect to Regulation and Development under the control of the union. Ent. 54 of the list I of seventh schedule of the Constitution of India provides Regulation of Mines and Minerals development to the extent to which such regulation and development under the control of Union is declared by Parliament by law to be expedient in the public interest. Thus while regulation of Mines and Minerals development is ordinarily a subject for State legislation, Parliament made by law declared the extent which control of such regulation and development by the Union is expedient in the public interest and to that extent, it becomes a subject for Parliamentary legislation.
11. Accordingly, the Parliament enacted the Act known as Mines and Mineral (Regulation and Development) Act, 1957 and by Section 2 of the aforesaid Act it has been declared by the Parliament that it is expedient in the public interest that the Union should take under its control the Regulation of Mines and Developments of the Minerals to the extent here-in-provided....
12. The effect of the aforesaid declaration made by the Parliament according to Section 2 of the Act of 1957, the State legislature are denuded of the whole of there legislative power with respect to regulation of Mines and Minerals Development and that the entire legislative field has been taken over by Parliament. The reliance has been placed upon two judgments of the Apex Court reported in 1970 Supreme Court, 1436 Baijnath Nath Kedia v. State of Bihar and Ors. The relevant paras 14 and 24 are being reproduced below:
14. Although these supplementary arguments were raised it is obvious that they can arise according as the two main arguments are allowed or disallowed. Therefore, it is necessary to address ourselves to the first argument that the legislative competence to enact the amendment to Section 10 of the Reforms Act was wanting. As the amendment was made after Act 67 of 1957 we have to consider the position in relation to it. Entry 54 of the Union List speaks both of Regulation of mines and minerals Development and entry 23 is subject to entry 54. it is open to Parliament to declare that it is expedient in the public interest that the control should rest in Central Government. To what extent such a declaration can go is for Parliament to determine and this must be commensurate with public interest. Once this declaration is made and the extent laid down, the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament. Any legislation by the State after such declaration and trenching upon the filed disclosed in the declaration must necessarily be unconstitutional because that filed is abstracted from the legislative competence of the State Legislature. This proposition is also self-evident that, no attempt was rightly made to contradict it. There are also two decisions of this Court reported in
24. The contention was that modification of existing leases was a separate topic altogether and was not covered by Section 15 of Act 67 of 1957, therefore if Parliament had not said anything on the subject the filed was open to the State Legislature. The other side pointed to the words ''and far purposes connected therewith'' in Section 15 and contended that those words were sufficiently wide to take in modification of leases. Mr. Lal Narain Sinha''s argument is unfortunately not tenable in view of the tow rulings of this Court. On the basis of those rulings we have held that the entire minerals had been withdrawn from the State Legislature. We have also held that vested rights could only be taken away by law made by a competent legislature. Mere rule-making power of the State Government was not able to reach them. The authority to do so must, therefore, have emanated from Parliament. The existing provision related to regulation of leases and matters connected therewith to be granted in future and not for alternation of the terms of leases which were in existence before Act 67 of 1957. For that special legislative provision was necessary. As no such parliamentary law had been passed the second sub rule to R.20 was ineffective. It could not derive sustenance from the second Proviso to Section 10(2) of the Land Reforms Act since that proviso was not validly enacted.
13. Another judgment in
11. On the other hand, Mr. Setalvad- learned Counsel for the respondent urged that the Central Act covered the entire filed of mineral development, that being the "extent" to which Parliament had declared by law that it was expedient that the Union should assume control. In this connection he relied most strongly on the terms of Section 18(1) which laid a duty upon the Central Government "to take all such steps as may be necessary for the conservation and development of minerals in India" and "for that purpose the central Government may, by notification make such rules as it deems fit". If the entire filed of mineral development was taken over that would include the prevision of amenities to workmen employed in the mines which was necessary in order to stimulate or maintain the working of mines. The test which he suggested was whether if under the power conferred by Section 18(1) of the Central Act, the Central Government had made rules providing for the amenities for which provision was made by the Orissa Act and if the Central Government had imposed a fee to defray the expenses of the provision of these amenities, would such rules be held to be ultra vires of the Central Government, and this particularly when taken in conjunction with the matters for which rules could be made u/s 18 to which reference has already been made. We consider there is considerable force in this submission of learned Counsel for the respondent, and this would require very detailed and careful scrutiny. We are, however, relieved from this task of detailed examination and discussion of this matter because we consider that it is concluded by a decision of this Court in
12. Before referring to the portion of the judgment dealing with the aspect of the matter, it would be convenient to refer to the Central Act of 1948 on the basis of which the constitutional validity of the Orissa Act was impugned. Central Act 53 of 1948 professes to be an Act to provide for the regulation of mines and oil fields and for the development of minerals. Section 2 of that Act contained a declaration as we have in Section 2 of the present Central Act 67 of 1957 and this read:
It is hereby declared that it is expedient in the public interest that the Central Government should take under its control the regulation of mines and oil fields and the development of minerals to the extent hereinafter provided.
It is a very short enactment consisting only of 14 sections of which it is only necessary to mention Section 6 which is headed "power to make Rules as respects mineral development" and this empowers the Central Government by notification to make rules for "the conservation and development of minerals." By amendments effected in Central Act 53 of 1948, by the later Act 67 of 1957, the provisions which related to "mines and minerals" and their development and the references to "mines and minerals" in provisions common to them and to oil fields in provisions common to them and to oil fields were excised, so that thereafter while the earlier Act of 1948 was limited to the development of oil-fields, the entire range of the law relating to mines and mineral development was taken over and covered by Central Act 67 of 1957. Now, it was the existence of this enactment of 1948 when it applied to mines and mineral development and before it was amended by Act 67 of 1957 by confining it to oilfields, with the declaration which is contained that it was expedient to "control mineral development to the extent provided" that was urged as having deprived the Orissa State Legislature of competence to enact the Orissa Act. Dealing with this ground of challenge Gajendragadkar, J. speaking for the Court observed:
Its validity (the demand of the fee under the Orissa Act) is still open to challenge because the legislative competence of the State Legislature under Entry 23 is subject to the provisions of List I with respect to regulation and development under the control of the Union; and (hat takes us to Entry 54 in List I.... The effect of reading the two Entries together is clear. The jurisdiction of the State Legislature under Entry 23 is subject to he limitation imposed by the latter part of the said Entry. If Parliament by its law has declared that regulation and development of mines should in public interest be under the control of the Union, to the extent of such declaration the jurisdiction of the State Legislature is excluded. In other words, if a Central Act has been passed which contains a declaration by Parliament as required by Entry 54, and if the said declaration covers the filed occupied by the impugned Act the impugned Act would be ultra vires, not because of any repugnance between the two statutes but because the State Legislature had no jurisdiction to pass the law. The limitation imposed by the latter part of Entry 23 is a limitation on the legislative competence of the State legislature itself. This position is not in dispute.
It is urged by Mr. Amin that the field covered by the impugned Act has already been covered by the Mines and Minerals (Regulations and Development) Act, 1948. (LIII of 1948) and he contends that in view of the declaration made by Section 2 of this Act the impugned Act is ultra vires... Section 2 of the Act contains a declaration as to the expediency and control by the Central Government. It reads thus....Section 4 of the Act provides that no mining lease shall be granted after the commencement of this Act otherwise than in accordance with the rules made under this Act. Section 5 empowers the Central Government to make rules by notification for regulating the grant of mining leases or for prohibiting the grant of such leases in respect of any mineral or in any area.... Section 6 of the Act, however empowers the Central Government to make rules by notification in the official gazette for the conservation and development of minerals. Section 6(2) lays down several matters in respect of which rules can be framed by the Central Government....it is true that no rules have in fact been framed by the Central Government in regard to the levy and collection of any fees, but in our opinion, that would not make any difference. If it is held that this Act contains the declaration referred to in Entry 23 there would be no difficulty in holding that the declaration covers the field of conservation and development of minerals, and the said filed is indistinguishable from the field covered by the impugned Act. What Entry 23 provides is that the legislative competence of the State Legislature is subject to the provisions of List 1 with respect to regulation and development under the Control of the Union, and Entry 54 in List I requires a declaration by Parliament by law that regulation and development of mines should be under the control of the Union in public interest. Therefore, if a Central Act has been passed for the purpose of providing for the conservation and development of minerals, and if it contains the requisite declaration, then it would not be competent to the State Legislature to pass an Act in respect of the subject matter covered by the said declaration. In order that the declaration should be effective it is not necessary that rules should be made or enforced; all that this required is a declaration by Parliament that it is expedient in the public interest to take the regulation and development of mines under the control of the Union. In such a case the test must be whether the Legislative declaration covers the filed or not. Judged by this test there can be no doubt that the field covered by impugned Act is covered by the Central Act LIII of 1948.
It is only necessary to add that the validity of this impost was affirmed, however, for the reason that whereas the Orissa Act was a post-Constitution enactment, the Central Act of 1948 was a pre-Constitution law and as in terms of Entry 54 "Parliament" had not made the requisite declaration, but only the previously existing Central legislature it was held not to be within the terms of Entry 54 and the State enactment was held to continue to be operative. Since the central Act 67 of 1957, contains the requisite declaration by the Union Parliament under Entry 54 and that Act covers the same filed as the Act of 1948 in regard to mines and mineral development, we consider that the decision of this Court concludes this matter unless there were any material differences between the scope and ambit of Central Act 54 of 1948 and that of the Act of 1957. Learned Counsel for the appellant was not able to point to any matter of substance in which there is any difference between the two enactments. It was suggested that whereas Section 6 of the Act of 1948 empowered rules to be made for taxes being levied there was no specific power to impose taxes under that of 1957. it is not necessary to discuss the materiality of this point because what we are concerned with is the power to levy a fee and there is express provision therefore in Section 18 of the Central Act of 1957 apart from the implication arising from Section 25 thereof, which runs:
25. Any rent, royalty, tax, fee or other sum due to the Government under this Act or the rules made thereunder or under the terms and conditions of any prospecting license or mining lease may, on a certificate of such officer as may be specified by the State Government in this behalf by general or special order, be recovered in the same manner as an arrear of land revenue.
We ought to add that besides we see considerable force in Mr. Setalvad''s submission that Sub-section (1) and 92) of Section 18 of the Central Act of 1957 are wider in scope and amplitude and confer larger powers on the Central Government than the corresponding provisions of the Act of 1948.
15. But even if the matter was res Integra, the argument cannot be accepted. Repugnancy arises when two enactments both within the competence of the two Legislatures collide and when the Constitution expressly or by necessary implication provides that the enactment of one Legislature has superiority over the other then to the extent of the repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying another. The test of two legislations contained is contradictory provisions is not, however, ...only criterion of repugnancy, for, if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole filed, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance. Where such is the position, the inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the more existence of the two pieces of legislation. In the present case having regard to the terms of Section 18(1) it appears clear to us that the intention of Parliament was to cover the entire filed and thus to leave no scope of the argument that until rules were framed, there was no inconsistency and no supersession, of the State Act.
14. Another reliance has been placed upon a judgment of the Supreme Court in
23. The next question which arises is, even if the cess is a fee and as such may be relatable to Entries 23 and 66 in List II its validity is still open to challenge because the legislative competence of the State Legislature under Entry 23 is subject to the provisions of List I with respect to regulation and development under the Control of the Union; and that takes us to Entry 54 in List I. This Entry reads thus: "Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest." The effect of reading the two Entries together is clear. The jurisdiction of the State Legislature under entry 23 is subject to the limitation imposed by the latter part of the said entry. If parliament by its law has declared that regulation and development of mines should in public interest be under the control of the Union, to the extent of such declaration the jurisdiction of the State legislature is excluded. In other words, if a Central Act has been passed which contains a declaration by Parliament as required by Entry 54, and if the said declaration covers the filed occupied by the impugned Act the impugned Act would be ultra vires, not because of any repugnance between the two statutes but because the State Legislature had no jurisdiction to pass the law. The limitation imposed by the latter part of Entry 23 is a limitation on the legislative competence of the State Legislature itself. This position is not in dispute.
33. There is another possible argument which may prima facie lead to the same conclusion. Let us assume that the result of reading Article 372 and Clause 16 of the Adaptation of Laws Order is that u/s 2 of Act LIII of 1948 there is a declaration by Parliament as suggested by the petitioners and the learned Additional Solicitor-General. Would that meet the requirements of Entry 54 in List I of the Seventh Schedule? It is difficult to answer this question in the affirmative because the relevant provisions of the Constitution are prospective and the declaration by Parliament specified by Entry 54 must be declaration made by Parliament subsequent to the date when the Constitution came into force. Unless a declaration is made by Parliament after the Constitution came into force it will not satisfy the requirements of entry 54, and that inevitably would mean-that the impugned Act is validly enacted under Entry 23 in List II of the Seventh Schedule. If that be the true position then it would follow that even on the assumption that clause 16 of the Adaptation of Laws order and Article 372 can be construed as suggested by the petitioners the impugned Act would be valid.
15. The creation of monopoly is a legislative object which is provided Entry 21 of list IIIrd of seventh schedule of Constitution of India, When the State legislature has been denuded by the declaration made by the Parliament u/s 2 of the Act of 1957, then State Government cannot create a monopoly by way of amended Rule, as such it clearly violates the Constitutional mandate. In making the Rules State Government is acting as delegate and nor as the owner of a minerals, as such, it is not open to the State Government to exercise it subordinate legislative function in the .manner to benefit itself as owner of minerals, nor it is open to the State Government to create a monopoly and monarchy by such means.
Section 15 of the Act, 1957 enabled the State Government to make rules to regulate the grant of leases and not to creation of monopoly. The public interest which induced Parliament to make declaration contained in Section 2 of the Act of 1957 has naturally to be the paramount consideration in all the matters, concerning the Regulation of Mines and Development of Minerals. Amending Rule 10 involved in major change in the policy which is legislative function and therefore beyond the competency of the subordinate legislation. u/s 15 of the Act of 1957, the power has been given to the State Government to make Rules in respect of mines and minerals. Section 15 of Mines and Minerals (Regulation and Development) Act, 1957 is being quoted below:
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 therefore;
(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 of otherwise) in cases where any such party is prejudicially affected by reason of any prospecting or mining operations;
(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 made in the same areas 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 to 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 hind 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 therefore, 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 91) 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 State 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.
17. The subordinate legislation may also be struck down as arbitrary if it fails take it be account very vital fact which either expressly or by necessary implication or required to be taken into consideration by the statute or by the Constitution. The petitioner has placed reliance upon a judgment in Indian Express Newspapers (Bombay) Private Ltd. and Ors. v. Union of India and Ors. reported in and reliance has been placed in Para 2 of the said judgment. The same is being quoted below:
2. The first set of writ petitions challenging the above levy was filed in May, 1981. At that time under the Customs Act, 1962 read with the Customs Tarriff Act, 1975 customs duty of 40% advalorem was payable on newsprint. Under the Finance Act, 1981 an auxiliary duty of 30% ad valorem was payable in addition to the customs duty. But by notifications issued u/s 25 of the Customs Act, 1962, the customs duty had been reduced to 10% ad valorem and auxiliary duty had been reduced to 5% ad valorem in the case of newsprint used for printing newspapers, books and periodicals.
18. The petitioner has placed reliance upon a judgment reported in AIR 1969 SC 1459. Para 3 is relevant.
19. Reliance has also been placed in
4. By virtue of the provisions of the U.P. Electricity (Duty) (Amendment) Ordinance, 1959 various amendments were carried out in the said Act. In Section 2 of the principal Act, a new clause, Clause (hh) describing a scheduled industry was inserted. By virtue of the aforesaid newly inserted clause, the expression ''scheduled industry'' meant any of the industries specified in the schedule. In the proviso to Section 3 of the principal Act, after Clause (d), a new Clause (e) was inserted which provided for non-levy or exemption from the payment of electricity duty on the energy consumed by a consumer in a scheduled industry. The expression which was added was "by a consumer in a scheduled industry ". By virtue of Section 8 of the Amending Act, a schedule was added to the principal Act. In the schedule, non-ferrous metals and alloys were placed at serial No. 1 in Part b of the Schedule under a broad heading ''Metallurgical industries''. It appears, therefore, that by virtue of the aforesaid provisions electricity duty on the energy consumed by Hindustan Aluminum Corporation Ltd., was exempted from 1st April, 1959, the date on which the Ordinance came into force. It was further stated that the U.P. Electricity (Duty) (Amendment) Ordinance, 1959 was repealed and the provisions were incorporated into an amending Act, viz., U.P. Act No. 12 of 1959 and termed as the U.P. Electricity (Duty) (Amendment) Act, 1959. By virtue of Sub-section (2) of Section 1, the Amendment Act provided that the Act would be deemed to have come into force with effect from 1st April, 1959. The Amendment Act repealed the provisions of the U.P. Electricity (Duty) (Amendment) Ordinance, 1-959. In Section 2, after Clause (d), the clause which was inserted as a new Clause (e) provided that electricity duty would not be leviable on the consumption of energy by a consumer in any industry engaged in the manufacture, production, processing, or repair of goods. Ordinance No. 14 of 1970 was promulgated on 5th August, 1970. The provisions contained in the Ordinance were subsequently incorporated in U.P. Act No. 2 of 1971. The amended provisions of U.P. Act No. 2 of 1971 came into force from 1st April, 1970. The Amendment Act was preceded by U.P. Ordinance No. 14 of 1970. The ordinance was descried as "the Uttar Pradesh Taxed and Fees Laws (Amendment) Ordinance, 1970." By virtue of Chapter HI of the said Ordinance, amendments were sought to be made to the Act. Section 3 of the principal Act was substituted by a new Section which provided that there would be levied and paid to the State Government a duty called electricity duty on the energy sold to a consumer by a licensee/Board/ the State Government/the Central Government; there would be a duty on the consumption of energy by a licensee or the Board in or upon the premises used for commercial or residential purposes, or in or upon any other premises except "in the construction, maintenance or operation of his or its works'', and there would be a duty upon the consumption of electricity by and other person from "his own source of generation.". It was provided that a duty was to be determined at such rate or rates as may, from time to time, be fixed by the State Government by notification in the official gazette. Sub-section (2) of Section 3 provided that in respect of certain classes of consumption the electricity duty would not exceed 25% of the rate charged.
20. Another reliance has been placed by the counsel for the petitioner upon a judgment in
100. Where the validity of a subordinate legislation (whether made directly under the Constitution or a statute) is in question, the court has to consider the nature, objects and scheme of the instrument as a whole, and, on the basis of that examination, it has to consider what exactly was the area over which, and the purpose for which, power has been delegated by the governing law.
101. Rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to an unauthorized end or violative of the general principles of the law of the land or so vague that it cannot be predicated with certainty as to what is prohibited by them or so unreasonable that they cannot be attributed to the power delegated or otherwise disclose bad faith. In the words of Lord Russel of Kilowen, C.J., in Kruse v. Johnson (1898) 2 QB 91 99:
If, for instance, they were found to be partial or enequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, ''Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.
102. In
neither the function or the forte of the court. We concern ourselves neither with the policy nor with the rates. But we do not totally deny ourselves the jurisdiction to enquire into the question, in appropriate proceedings, whether relevant considerations have zone in and irrelevant considerations kept out of the determination of the price.
103. In
Reasonableness, for purposes of judging whether there was an ''excess of power'' or an ''arbitrary'' exercise of it, is really the demonstration of a reasonable nexus between the matters which are taken into account in exercising a power and the purposes of exercise of that power.
In
...But this does not mean that Government can fix any arbitrary price or a price fixed on extraneous considerations or is such that it does not secure a reasonable return on the capital employed in the industry. Such a fixation would at once evoke a challenge, both on the ground of its being inconsistent with the guidelines built in the sub-section and its being in contravention of Articles. 19(1)(f) and (f)....
See also observation to the same effect in
104. Any arbitrary exercise of power by a public authority, whether or not it is in the nature of subordinate legislation, is liable to be condemned as violative of Article 14. As stated in
...equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch....
See also
105. An act is ultra vires either because the authority has acted in excess of its power in the narrow sense, or because it has abused its power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness: see the principle stated by Lord Greene M.R. in Associated provincial picture Houses Ltd. v. Wednesbury Corporation (1947) 2 All ER 680. Power is exercised in bad faith where its repository is motivated by personal animosity towards those who are directly affected by its exercise. Power is no less abused even when it is exercised in good faith, but for an unauthorized purpose or on irrelevant grounds, etc''''. As stated by Lord Macnaghten in Westminster Corporation v. London and North Western Railway (1905) ACJ 426:
.... It is well settled that a public body invested with statutory powers such as those conferred upon the Corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first...
This principle was restated by this Court in
...Even if (the statutory order) is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts.
21. Further it has been submitted by the counsel for the petitioner that the power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate or whom such a power is conferred has. to act within the limits of authority conferred by the Act. Reliance has been placed upon
22. The District Magistrate vide its order dated 5.12.2005 rejected the renewal application of the petitioner against which the petitioner filed an appeal and the same was allowed and the matter was remanded back for reconsideration as the petitioner was sole applicant of his plot but the District Magistrate in an arbitrary manner by superceding the finding of the Commissioner stating that there are more than one application of the plot concern although the petitioner has filed an affidavit of the person whose name has been mentioned in the order dated 8.11.2006, The further submission has been made that as the order dated 5.12.2005 passed by the District Magistrate was challenged before the Appellate Court and the appellate authority has given a finding after perusal of the entire record, that the petitioner is the sole applicant of his plot concern then the District Magistrate has got no power and jurisdiction to supercede the judicial finding of the appellate authority, as such, the order dated 8.11.2006 passed by the District Magistrate is beyond jurisdiction and liable to be quashed by this Court. There is no valid reason given by the District Magistrate while rejecting the notice dated 29.11.2005 which clearly shows the arbitrariness and the notice dated 26.12.2005 is liable to be quashed. Aggrieved by the aforesaid action of the respondents, the petitioner has approached this Court.
23. Notices were issued and during the pendency of the writ petition, an order was passed by the District Magistrate, as such, the petitioner has filed a supplementary affidavit and amendment application quashing the order dated 8.11.2006 passed by the District Magistrate, Sonebhadra i.e. respondent No. 2 rejecting the application of the petitioner. The amendment application was allowed and the petitioner was permitted to incorporate the necessary amendment. As the total plot was being recommended for granting the mining lease in favour of the respondent No. 4, therefore, the respondent No. 4 as well as the State Government was granted time to file the counter affidavit.
24. Counter and rejoinder affidavits have already been filed by the respective parties, as such, with the consent of the parties, the writ petition is being disposed of finally.
25. A counter affidavit on behalf of respondent No. 4 has been filed and it has been stated that the petitioner was granted mining lease in pursuance of notice dated 19.1.2001 only to persons belonging to reserve category under Rule 9-A (as then it was) which in effect amounted to 100% reservation and the lease was executed for a period of three years. As Rule 9-A has been declared ultra vires, therefore, no renewal has been granted. The petitioner applied for renewal on 1.9.2003 and 2/8.9.2003 when the renewal application was not decided he filed a writ petition before this Court and the Writ Petition No. 42200 of 2005 which was disposed of finally to decide the application for renewal within a period of six weeks. By order-dated 5.12.2005, the application was rejected. Again a Writ Petition No. 77005 of 2005 was filed which was also disposed of on 20.12.2005, directing the petitioner to file an appeal. The appeal was allowed and the matter was remanded back to the District Magistrate. As a decision was taken that no renewal will be granted to those person, who have been granted lease under Rule 9-A, as such, the application of the petitioner itself was not maintainable. As regards, the challenge of Rule 10 of the U.P. Minor Mineral (Concession) Rules, 1963 as amended by 26 of Amendment 2004 is concerned the same is also not tenable. Rule 10 has been amended by the State Government in exercise of power u/s 15 of the Mines and Minerals (Regulation and Development) Act, 1957. Under unamended Rule 10, there was also a proviso that if the State Government is of the opinion that in the interest of mineral development, it is necessary to do so, it may for reasons to be recorded, permit any person who acquire one or more mining leases covering area in excess of the aforesaid maximum of 30 acres. The power of the State Government has been delegated to the District Magistrate by the Government Orders dated 29.5.1985 and 23.3.1995. In the Government Order dated 16.10.2004, the Government has given cogent reasons for making the amendment. It was considered necessary for regulation of mines and development thereof that lot should be so prepared in a consolidated manner that no area lying in the vicinity be left vacant and the consolidated lot may be profitable. Even, the amendment Rule does not provide that leases cannot be granted of area lesser than 30 acres. However, considering the aforesaid situation at the spot the lots are to be so constituted that no area in the vicinity is left vacant. For example, if there are certain lots which are submerge in the water or otherwise not capable of doing mining they may be included in consolidated lot so that the revenue may also be done in proper manner and which may result in development of the mineral. This is a policy decision and is based on good reasons and is not subject to judicial review,
26. Further it has been submitted on behalf of the respondent No. 4 that challenge to the notice dated 26.12.2005 is also without substance. In the letter dated 24,12.2005 (Annexure 10 to the writ petition) it is clearly mentioned that on inspection of the site it was found that there is good quality of sand, only in 4-5 blocks for lots and remaining 8-9 lots the quality of the sand is not good and therefore, one lot of 130 acres was found to be more feasible and profitable and this is why the notice dated 26.12.2005 was issued inviting applications for plot No. 1 area 130 acres.
27. Further submission has been made on behalf of the respondent that there is no restriction for the petitioner to apply for the same. Every person who desires can make an application and it cannot be said that there is any discrimination or differential treatment given at any stage. About 34 persons have applied for grant of lease as is clear from Annexure 8 of the writ petition. It has further been submitted on behalf of the respondent No. 4 that the petitioner has not approached this Court with clean hands and has suppressed various materials as the petitioner has stated that he is the only applicant for allotment of plot No. 5 and the lease was granted to him not on preferential basis under Rule 9-A as it then existed. The petitioner has filed various writ petitions stating therein that petitioner was only the applicant. It is clear from the counter affidavit filed on behalf of the State that the application was not only sole applicant. The petitioner was granted lease by shelter under Rule 9-A (as it then was). The Apex Court in various cases has clearly held that if a person has not approached the Court with clean hands by suppressing material fact, no relief should be granted in equitable jurisdiction under Article 226 of the Constitution of India. The reliance has been placed upon the judgment in
21. The Patna High Court dealt with a similar issue in
6. By virtue of Section 53 of the Act, the provisions of the Code of Civil procedure, so far as they are not inconsistent with the Act, apply to the proceeding under the Act before the Court and therefore, it was competent to the Civil Court, when the dispute was referred to it to consider the claim of the respective parties who appeared before it. The claim of the plaintiff No. 1 was, therefore, fully adjudicated upon by the civil Court and the said adjudication under the Act is, in my opinion, as much subject to the principles of res judicata as adjudication by courts under the Civil Procedure Code. The scope of adjudication u/s 30 of the Act on a reference arises only when a dispute regarding apportionment of the compensation money arises between different claimants. It is only the question of the right and title of the respective claimants to the apportionment of the compensation money which is referred for determination by the civil court u/s 30 of the act and those parties are certainly bound by the adjudication of the Court and the same question cannot be tried and determined by any other Court in a subsequent suit as the right to apportionment necessarily involves the determination of the title of claimant or the objector in the properties which may be the subject-matter of the acquisition, because it is only on the determination of this condition precedent that the Court determines the question as to person entitled to the compensation or its apportionment.
28. Reliance has also been placed upon a judgment in
17. Writ jurisdiction is discretionary jurisdiction. One of the grounds for refusing to exercise jurisdiction under Article 226 is that the petitioner has not come with clean hands.
18. In
In our opinion, the salutary principle laid down in the cases quoted above should appropriately be applied by the Courts in our country when parties seek the aid of the extraordinary powers granted to the court under Article 226 of the constitution. A person obtaining an ex-parte order or a rule nisi by means of a petition for exercise of the extraordinary powers under Article 226 of the Constitution must come with clean hands, must not suppress any relevant facts from the court, must refrain from making misleading statements and from giving incorrect information to the court. Courts, for their own protection, should insist that persons invoking these extraordinary powers should not attempt, in any manner, to misuse this valuable right by obtaining exparte orders by suppression, misrepresentation or misstatement of facts. Applying this principle to the present case, we fell that, in this case, the petitioner company has disentitled itself to ask for a writ of prohibition by material suppressions, misrepresentations and misleading statements which have been found by us above.
19. In the present case the petitioner suppressed the concealed the material facts in this writ petition that possession of the land has been taken by the State and handed over to the auction purchasers (respondents 5 and 6), as is evident from the certificate of possession, copy of which is annexure C.A. 4 to the counter affidavit. He also suppressed the fact of the auction by the A.D.A. on 15.3.2000 and of its confirmation on 10.4.2000. The affidavit in support of the writ petition was sworn on 27.4.2000, and it is not possible for us to believe that the petitioner did not know of the above facts. Yet the petitioner has falsely stated in paragraphs 12 and 18 of the writ petition that they are in possession. There is no mention in the writ petition of the auction of the land in dispute. It is therefore evident to us (hat the petitioner suppressed all these material facts in order obtain the interim order of this Court dated 1.5.2000.
20. This practice of suppressing material facts to obtain interim orders from this Court has assumed colossal dimensions. This Court has been too indulgent to this malpractice, and the result has been that a large number of petitions are being filed in the court concealing and suppressing relevant and material facts only to obtain interim orders, and knowing that because of the heavy pendency of cases in the court stay vacation applications are not taken up for hearing for years. The only way to stop this malpractice is to dismiss such writ petitions on the ground that the petitioner has not come with clean hands, without going into the merits. Writ jurisdiction is equity jurisdiction, and he who seeks equity must come with clean hands.
21. Since in this case the petitioner has not come with clean hands as he has suppressed material and relevant facts we dismiss this writ petition on this ground without going into the merits. Interim order is vacated.
29. Further reliance has also been placed a judgment in
62. Writ jurisdiction is discretionary. It is not issued merely because it is lawful to do so. The purpose of the writ court is not only to protect a person from being subjected to violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter jurisdiction but leaves it to the discretion of the Court. However, the power being discretionary, the Court has to balance the competing interest, keeping in mind that interest of justice and public interest can coalesce in certain circumstances. The court must so act as to prevent perpetration of a legal fraud and to promote good faith and equity. (Vide
63. The contents of para 42 of the writ petition, which the petitioner rely and have been sworn on legal advice, reveal that the petitioner had full knowledge of what he was doing. Petitioner has clearly indulged in an activity, which is nothing but an abuse of the process of the Court and therefore he is not entitled to any equitable relief in extraordinary discretionary jurisdiction of the Court. He has not come with clean hands. He has in fact suppressed the material facts about filing of the appeal simultaneously.
30. The further argument has been made on behalf of the respondent No. 4 is that the petitioner has challenged the order dated 8.11.2006 which is an appealable order and the petitioner can file an appeal under Rule 77 of the U.P. Minor Mineral (Concession) Rules 1963. As the lease was granted to the petitioner under Rule 9-A as such, it cannot be renewed. In fact there were 25 applicants out of which the applications of 24 applicants were in order and the lease was granted by lottery in favour of the petitioner. As Rule 9-A has already been declared ultra virus therefore, the lease cannot be renewed which has been held in various cases by this Hon''ble Court. Admittedly, the petitioner has not made any application for grant of lease in pursuance of the notice dated 26.12.2005 nor the petitioner has disclosed any reason that why he has not made any application. The sole claim of the petitioner is that he is entitled for renewal of his lease in respect of 10 acres, of plot No. 1. The petitioner has made no claim in respect of 130 acres, which is a subject matter of notice dated 26.12.2005. The petitioner has got no locus standi to challenge the said notice. As the lease of the petitioner was granted under Rule 9-A there cannot be any renewal in view of the well settled principle of law. As regards the validity of Rule 10 regarding monopoly in favour of one single person, the challenge is unfounded. There is no prohibition for the petitioner or any person who wants to apply under the said notice. There is no whisper or averment made in the writ petition that the petitioner is not able to apply and what where the reasons under the Notice dated 26.12.2005. If he is not an applicant he cannot make any complaint regarding the unamended Rule. As regards, the submission made by the petitioner regarding powers of the State Government u/s 15, the State Government has been given power to make Rules for regulating the minerals. It is well recognized that the subordinate legislation can be challenged under any of the following grounds:
(a) When there is lack of legislative competence to make subordinate legislation.
(b) Violation of fundamental rights guaranteed under the Constitution of India.
(c) Violation of any provision of the Constitution of India,
(d) Failure to conform to statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules).
31. Reliance has been placed upon judgment of the Apex Court in
15. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that a subordinate legislation can be challenged under any of the following grounds:
(a) Lack of legislative competence to make the subordinate legislation.
(b) Violation of fundamental rights guaranteed under the Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules).
32. Rule 10 before its amendment provides that no person shall acquire in support of any minor and mineral one or more mining leases covering a total area of more than 30 acres but a proviso to that effect was there that if the State Government is of the opinion that in the interest of mineral development, it is necessary to do so, it may for reasons to be recorded, permit a person to acquire one or more mining leases covering area in excess of aforesaid maximum of 30 acres. Thus, even in unamended Rule, the power to the State Government was there. The only requirement was that it should be in the interest of mineral development and reason to that effect should be recorded. A policy by the Government in the order dated 16.10.20Q4 has been declared. In Para 2 of the said government order, it is clearly stated that by amending Rule 10 the earlier restriction imposed for granting lease more than 30 acres in respect of sand, morrum etc. has been removed. For regulation of mines and development thereof lots should be so prepared in an consolidated manner that no areas lying in vicinity is left vacant and the consolidated lot may be profitable that is fetching higher revenue. Even the amended Rule does not provide that the leases cannot be granted of area lesser than 30 Acres. However, where the spot situation is that bigger lots be prepared which may bring higher revenue and vacant areas be not left out in the vicinity, the lease can be granted of lots more than 30 acres of area. The contention of the petitioner to this effect that it will create a monopoly is without any basis or foundation. A perusal of amended Rule 9-A shows that it is not necessary that only one person may apply for a lease, a group of persons jointly may apply. In view of the notice dated 26.12.2005 any person can apply. There is no restriction to this effect. Relying by the petitioner upon Rule 9(2)(e) is not correct. Rule 9 is to be read as a whole. The proviso however says that if such applications are received on the same day, the State Government may after taking into consideration the matter specified in sub Rule 2 could grant the mining lease to such applicant as it may deem fit. Sub Rule 2(e) provides that in respect of mining lease for sand found in river bed if other things are equal preference shall be given to a person or a group of person whether incorporated or not who have obtained a certificate in Form MM-14 from the concerned District Officer certifying that such person or persons traditionally engaged in excavation of sand/morrum for their livelihood who are the resident of the said district.
33. Further submission has been made that Sub Rule 2(e) does not support the case of the petitioner regarding validity of Rule 10. The Power of State Government u/s 15 to make Rules in respect of minor minerals is very wide. The reliance has been placed upon a judgment of this Court reported in
34. The District Magistrate has recorded a finding that areas mentioned in the notice were inspected and surveyed and on the spot it was found that it was only 4-5 divisions the good quality sand is available and the rest of the khands are of low quality sand and are covered with mud layer. On the aforesaid basis, keeping in view of the direction given it the Government Order dated 16.10.2004, the District Magistrate has formed one lot of 130 acres only to get more revenue, as such, it would be said that the order of the District Magistrate is bad in law and there is no illegality. As regards, the submission made on behalf of the petitioner regarding monopoly, is also not sustainable as on the basis of notice dated 20.12.2005, 34 applications have been filed. It is wrong to say that the notice-dated 26.12.2005 has been issued only to benefit of respondent No. 4. The respondents has brought on record a public notice dated 29.8.2005 inviting the applications in respect of one plot No. 824 kha an areas 75 Hectare that is about 185.32 acres and it has been sumitted that lease has been granted as such it cannot be said to be that there is any illegality. In such situation the respondents submit that the writ petition is liable to be dismissed.
35. On the other hand, Sri Alok Kumar Singh, learned Standing Counsel has submitted by means of counter affidavit stating therein that the petitioner was granted mining lease on 27.2.2001 for a period of three years as the petitioner was granted mining lease under Rule 9-A of the U.P, Minor Minerals (Concession) Rules 1963. The aforesaid rule has. already been declared ultra vires as such, the lease, which was granted u/s 9-A, cannot be renewed, therefore, the renewal application filed by the petitioner was not maintainable and is liable to be dismissed. As regards the challenge to the amended Rule 10 is concerned, Sri Alok Kumar Singh submitted that a cogent reason has already been given in the Government Order dated 16.10.2004 for the purposes of mining. In the said provision as the State Government has been given power u/s 15 of the Mines and Minerals (Development and Regulation) Act, 1957, for development of the minerals it was necessary to prepare a lot in a consolidated manner that no area lying in the vicinity be left vacant and also if a part of the areas for some reason is not capable of doing mining work, the other part may be used for the same. In such situation the State Government thought it proper to leave the embargo of 30 acres in the case of sand and morrum. In unamended Rule 10, there is also a provision to that effect that lease can be granted covering an area excess to 30 acres, therefore, it is a policy decision based on cogent and valid reason hence there is no need for any interference by this Court and the contention of thy petitioner to this effect that amended Rule 10 may be declared as ultra virus is not sustainable in law and the aforesaid contention of the petitioner should be rejected. That the District Magistrate on the basis of the order passed by the Commissioner has decided the matter. Though by notice dated 29.11.2005, the disputing mining areas was advertised by dividing into 13 separate plots but after the spot inspection it was found that out of 13 plots, the availability of good quality of sand is only four or five plots, therefore, taking into consideration the aforesaid fact on spot the District Magistrate who is competent authority has published the said notice and consolidated the total area into one lot. It is incorrect to state that it was only to give favour to one person. In view of the aforesaid fact the learned Counsel for the respondent submits that the writ petition is liable to be dismissed.
36. We have heard Sri Dev Brat Mukherjee, learned Counsel for the petitioner and Sri Bajaj Hussam for the respondent No. 4 and Sri Alok Kumar Singh for respondent Nos. 1 to 3 and have perused the record.
37. From the record it is clear that the petitioner was granted mining lease on 12.3.2001 to 11.3.2004 for a period of three years and the petitioner well in time has made an application for renewal of the said mining lease. The application was not considered then the petitioner approached this Court and this Court vide its order dated 26.5.2005 has disposed of the writ petition directing the respondent No. 2 to consider the renewal application of the petitioner in accordance with law within a period of six weeks from the date of production of the certified copy of the order. The said application was refected by order-dated 5.12.2005 on the ground that as the lease was granted under Rule 9-A and the same has already been declared ultra vires, therefore, the application is hereby rejected. The petitioner filed an appeal before the Commissioner and the appeal of the petitioner was allowed on 16.6.2006 holding therein that on the basis of perusal of record which has been received from the office of the District Magistrate, it is clear that no efforts have been made for the purposes of obtaining the no dues certificate and the application has been rejected only on the ground that as the mining lease to the petitioner has been granted under Rule 9-A and it has been found that there are certain various contradictions in the order, therefore, the matter may be heard again and the order dated 15.12.2005 passed by the District Magistrate was set aside and the licensing authority was directed to verify regarding the ownership whether it was a forest land or not and after obtaining No Dues Certificate from the Forest Department the District Magistrate was directed to pass appropriate orders on an application filed by petitioner for renewal of his mining lease, but in spite of the aforesaid fact, when it was not considered then the Secretary of the State of U.P. has directed the District Magistrate to consider the application on the basis of the order passed by the Commissioner. The District Magistrate on 29.11.2005 issued a notification for various areas in which the area of the petitioner for which petitioner was granted lease was also included. But immediately reasons best known to the District Magistrate another advertisement dated 24.12.2005 has been published canceling the advertisement dated 29.11.2005 by which the total 13 lots have been clubbed into one lot of area 130 acres and it has been directed that the interested person may make an application within a period of seven days from 30.12.2005. The reasons mentioned in the said advertisement dated 24.12.2005 is that after inspection it has been found that khands four and five, only good quality of sand is available and rest of the khand, the good quality of sand is not available, therefore, canceling the earlier advertisement, only one lot has been framed for area 130 acres, From the perusal of the record, it is also clear that the lease which was also granted in favour of the petitioner dated 27.2.2001, the petitioner made an application for renewal of the lease but the same has been rejected only on the ground that it was granted under Rule 9-A and Rule 9-A has already been declared ultra vires, therefore, it cannot be renewed.
38. The District Magistrate, while making the notification dated 24.12.2005 has not recorded any reason that under what circumstances the advertisement dated 29.11.2005 by which the total area was divided in 13 lots and immediate within a period of 20 days why total 13 lots have been clubbed in one lot of total area of 130 acres. According to Rules, before notification for the purposes of inviting the application it is provided that an enquiry to this effect has to be made regarding availability of sand and the area has to be demarcated. Only after the demarcation of areas and availability of the minerals it is always notified. If the ground taken by the District Magistrate is correct in the advertisement dated 24.12.2005, why while issuing a notification dated 29.11.2005 he has not advertised the said area in one lot. From the perusal of the record, it is clear that the advertisement dated 29.11.2005 each and everything according to Rules have been mentioned and the availability of sand in the total area has also been mentioned, and the plots have also been bifurcated. Therefore, the reasons given in the advertisement dated 24.12.2005 appears to be wrong. Only one line has been mentioned that it has been found that only 4 and 5 khands are having good quality of sand, therefore, it will be appropriate that total area be clubbed and only one lot instead of 13 khands measuring about 130 acres be clubbed and it is to be given to one person.
39. As regards the amended Rule 10, there is no dispute to this effect that there was a restriction to this effect that no person shall acquire in respect of any mines and minerals, one or more mining lease covering a total area of more than 30 acres but a proviso to that effect was there that if in the opinion of the State Government and in the interest of mineral development it is necessary to do so then a reason to that effect has to be recorded for the said purposes and excess to that area of 30 acres may be awarded to a person. But the amendment of 2004 gives a blanket power to the District Magistrate to club the area above than 30 acres. Earlier Rule and prior to the amended proviso to that effect provides that the reason has to be recorded to this effect why the various leases have been included in one and what are the reasons to club the total areas in one lot because if the licensing authority wants to give the benefit to a certain class of person he cannot do this act without assigning any reason. From the record, it is also clear that earlier to this the same area was being allotted in 13 lots to different mining lease holders either under Rule 9 or Rule 9-A but if such type of Act by the licensing authority is permitted taking the shelter of amendment of 2004 in Rule 10 without a cogent reason then only a class of person having a capacity of making an application and with having solvency of crores can only get the mining lease, This is not the intention of the legislature because admittedly, in view of the Section 2 of the Mines Minerals (Regulation and Development) Act, 1957 the Central Government is a controlling authority and Regulation of mines and developments of minerals to the extent provided under the Act.
40. There is no dispute that Section 15 of the Act 1957 gives a power to the State Government in respect of mines and minerals but the State Government has got no authority to make a rule or amend the rule not in consonane of 1957 Act because the act itself states that the provisions of the rules framed by the State Government should not be arbitrary. Section 6 of the Mines and Minerals (Regulation and Development) Act, 1957 provides that no person shall acquire in respect of mineral or prescribed group of associated minerals in a State. Clause 6(a) clearly states that one or more prospecting licences covering a total area of more than 25 square kilometers Inclining thereby the Central Government while making the aforesaid act was of the opinion there should not be any monopoly. Section 6 of the Act is being reproduced below:
6. Maximum area for which a prospecting licence or mining lease may be granted-
(1)No person shall acquire in respect of mineral or prescribed group of associated minerals (in a State)-
(c) one or more prospecting licences covering a total area of more than twenty-five square kilometers; or
(aa)one or more reconnaissance permit coveting a total area of ten thousand square kilometers;
Provided that the area granted under a single reconnaissance permit shall not exceed five thousand square kilometers, or
(d) one or more mining leases covering a total area of more than ten square kilometers:
Provided that if the Central Government is of opinion that in the interest of the development of any mineral, it is necessary so to do, it may, for reasons to be recorded by it in writing, permit any person to acquire one or more prospecting licences or mining leases covering an area in excess of the aforesaid total area:
(c) any reconnaissance permit, mining lease or prospecting licence in respect of any area which is not compact or contiguous:
Provided that of the State Government is of opinion that in the interests of the development of any mineral, it in necessary so to do, it may, for reasons to be recorded in writing, permit any person to acquire a reconnaissance permit, prospecting licence or mining lease in relation to any area which is not compact or contiguous.
(2) For the purposes of this section, a person acquiring by, or in the name of, another person a (reconnaissance permit prospecting licence or mining lease) by a person as a member of a cooperative society, company or other corporation, or a Hindu undivided family or a partner of a firm shall be deducted from the area referred to in Sub-section (1) so that the sum total of the area held by such person, under a (reconnaissance permit prospecting licence or mining lease) whether as such member or partner, or individually, may not, in any case, exceed the total area specified in Sub-section (1).)
41. It is also to be noted that amendment of Rule 10 of 2004, the proviso, which was earlier in the original Rules of 1963 has not been amended. The State Government was given power to allot the mining lease beyond above 30 acres if in his opinion in the interest of mineral development and the reason to that effect has to be recorded. The amendment of Rule 10 does not take away the proviso of original Rule 10 of 1963 Rules. The State Government earlier was of the opinion that if in the interest of mineral development, after recording a reason the area can be beyond 30 acres the mining lease can be granted but in the present case, admittedly, the authority concerned has not taken into consideration the proviso clause and has not recorded any reason that clubbing the total lots into one lot measuring about 130 acres is in the interest of mineral development. Unless and until the aforesaid finding with reason is recorded it cannot be said that there is compliance of Rule 10 of the Rules. Meaning thereby amended Rule 10 does not give a blanket power to the relevant authority for giving mining lease without consideration the proviso clause of original Rule 10 of Rule 1963. If the proviso has not been taken into consideration in spite of the fact taking shelter of amended Rule 10, grant of mining lease in favour of any person will be illegal and against the provisions of the Rules. In our opinion, this is not permissible.
42. The contention of the respondents to the effect that earlier there was a proviso to the effect and in the previous orders, various leases have been granted to various persons according to the aforesaid Rule before the amendment. An example to that effect has been brought to the respondents of district Banda. This Court is not aware under what circumstances that lease was granted and it was clubbed to one lot or from various lots to three and four lost. But from the fact of the present case, admittedly, after rejecting the application of the petitioner only on the ground that as the lease was granted to the petitioner in 2001 under Rule 9-A and now this Court has held that the lease which has been granted under Rule 9-A, the lease holders are not entitled for renewal. That is the question to be considered by this Court whether the lease which was granted to the petitioner was under Rule 9-A or Rule 9 of the Rules 1963. But what is apparent before this Court is that the lots which were granted in 2001 to different persons making 13 lots of the total area which was advertised on 29.11.2005 giving the details of the lots making 13 lots of total area of 130 acres and the applications were invited but subsequently without assigning any reason which was necessary under Rule 10 to be recorded on the basis of relevant reports by the relevant authority, the advertisement dated 24.12.2005 has been published by the respondents making 13 lots into one lot of total area of 130 acres. From the perusal of the advertisement, it is also clear that the District Magistrate only on the basis of the aforesaid advertisement dated 29.11.2005 has mentioned in the advertisement dated 24.12.2005 that from 30.12.2005 within a seven working days the applications were invited. Meaning thereby the earlier advertisement dated 29.11.2005 is being taken into consideration for the purposes of making an application for mining lease. According to Rule 72, sub-clause 1(2) it is clear that the application can be filed immediately after expiry of 30 days from the date of notification within a period of seven working days thereafter. It appears that the District Magistrate was of the opinion that as the advertisement was made on 29.11.2005 according to Rule 72, and in spite of the Notification dated 24.12.2005, the same Rule will be applicable though in view of the Notification dated 24.12.2005 there is a lot of change, therefore, taking the benefit of that notification the District Magistrate cannot issue the notification dated 24.12.2005. Either it was open to him to cancel the earlier notification and issue subsequent notification according to Rule 72 of the Rules because in earlier notification dated 29.11.2005 there were 13 lots and a notification dated 24.12.2005 there was only one lot of the same area, therefore, in our view it cannot be said to be strict compliance of Rule 72 of the rules. In view of the aforesaid fact, the notification-dated 24.12.2005 is not sustainable.
43. The another important factor which is to be considered by this Court is that from the perusal of Prapatra I about 34 applicants have filed an application but only the respondent No. 4 whose name has been recommended for the purposes of granting lease has submitted a solvency of 31.84 crores and no other applicant was having any solvency more than three or four crores. The name of respondent No. 4 is at serial No. 7. It also appears to this Court that name of Serial No. 6 who is having also a solvency of 34.55 crores his name was not considered only on the ground that he was not having any experience and has not filed any experience certificate. Sri Sandeep Gupta, who is the applicant at Serial No. 6 appears to be son of applicant No. 7. This clearly goes to show that if the respondents takes shelter of amended Rule 10 and without any reason the different lots have been clubbed into one lot, the ordinary persons who are indulged in the said mining lease in the previous years will be deprived of obtaining any mining lease. This will be an act of arbitrariness and giving preference to a particular class of person.
44. The District Magistrate while making the notification dated 29.11.2005 has not recorded any cogent reason regarding issuance of notification dated 24.12.2005. Admittedly, prior to date of notification the site must have been inspected and according to that lots were bifurcated as it was in the earlier years.
45. The next question for consideration is by this Court is whether the petitioner was granted lease under Rule 9-A or Rule 9 of the Rules. Though from the perusal of the earlier notification dated 19th January, 2001 by which the same area was notified for the purposes of granting the mining lease, the petitioner has submitted an application and from the order dated 27.2.2001 by which the lease was granted in favour of the petitioner. There is no mention that the lease has been granted in favour of the petitioner under Rule 9-A because according to Rule 9 if there is one application or there are two applications in respect of same land the applications which have, been received earlier shall have a preferential right for the grant of lease over the applicant whose application was received later. Though the respondents have tome with a case that there were 24 applications and the petitioner was granted lease on the basis of preference as provided under Rule 9-A. The petitioner has filed various affidavits showing therein that names of those person as applicant mentioned by the respondents have submitted their affidavits that they have never made any applications for this lot of the petitioner. The District Magistrate has rejected the claim of the petitioner only on the ground that as the mining lease was granted to the petitioner under Rule 9-A and the same has been declared ultra vires, therefore, the renewal cannot be granted. But from the record and the affidavits filed on behalf of the parties, it is not clear that lease was granted in favour of the petitioner under Rule 9-A therefore, a presumption will be that the petitioner was granted mining lease under Rule 9 of the U.P. Mines and Minerals (Concession) Act, 1963. It is also to be noted that Rule 9-A which gives preference to certain class of community was considered by this Court and the Apex Court and that has been declared ultra vires taking into consideration that a particular class has been given benefit by this Rule. But if amended Rule 10 is also taken into consideration, the authorities can take the benefit of that and only a class of person can be granted mining lease. There may be a special circumstances that small lots of 30 acres is not feasible for the purposes of granting mining lease and there is less availability of minerals. Then in that case after obtaining the report from the relevant authorities the District Magistrate in very special circumstances, after reasons to be recorded in detailed according to proviso of Rule 10 can grant mining lease above than 30 acres. But in the present case, the action of the respondents that is District Magistrate appears to be arbitrary and the notification of advertisement has been done without assigning any reason, appears to be giving benefit to a class of person.
46. Though the vires of amended Rule 10 has been challenged by the petitioner, while deciding the issue the question regarding constitutional validity of a particular provision can be left undecided if the writ petition can be decided on some other points. The Division Bench of this Court in
47. In view of the aforesaid fact, the order dated 8.11.2006 passed by the District Magistrate Sonbhadra (Annexure 1 to the amendment application) and the advertisement dated 24.12.2005 (Annexure 10 to the writ petition ) are hereby quashed and the District Magistrate is directed to advertise as a fresh for the aforesaid area. It is also further directed that the District Magistrate will take into consideration the finding and observation made in the aforesaid judgment and will strictly comply according to Rules.
The writ petition is allowed.
There shall be no order as to costs.
48. The copy of this judgment may be send to the Registrar General for sending a copy to the Principal Secretary, Industrial Development Department, U.P. Government, Lucknow to direct all the District Magistrate of State for strict compliance.
