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Satyendra Kumar Tripathi And Etc. vs State Of U.P. And Anr. Etc.

High Court Of Judicature at Allahabad|23 December, 2004

JUDGMENT / ORDER

JUDGMENT A.P. Sahi, J.
1. The challenge in the present writ petitions is to the 26th and 27th Amendment Rules introduced in the year 2004 in Uttar Pradesh Minor Mineral (Concession) Rules 1963, whereby preferential rights have been created under the said Rules in favour of the persons belonging to socially and educationally backward classes and traditionally engaged in the profession of excavating sand and morrum for their livelihood. Since all these writ petitions relate to the same subject matter, the same are being heard together and the present order shall govern all these connected writ, petitions.
2. For the sake of convenience and for appreciating the controversy, we find it appropriate to quote the 2 amendments namely the 26th and 27th amendments brought into by the State Government. These amendments which are presently under challenge, have been introduced in Rule 9 of the U. P. Minor Mineral (Concession) Rules 1963. By the 26th amendment, Rules 9-A and 53-A, as they then existed, were completely repealed and omitted. The 26th Amendment dated 22-6-2004 is as follows :-
4. It would not be out of place to mention at this juncture that rules 9-A and 53-A, as it then stood, were subject matter of challenge before this Court and the said Rules have been struck down as ultra vires in the case of Ram Chandra v. State of U. P. Civil Misc. Writ Petition No. 256 (M/B) of 1997 decided on 27-3-2001, which decision is reported in 2001 (3) HVD 223. The said Full Bench decision was challenged before the Apex Court where the State Government moved an affidavit along with an application dated 10-11-2001 stating that the deficiencies in rules 9-A and 53-A, as indicated in the Full Bench decision referred to hereinabove, shall be removed and it was also indicated therein that the Rules shall be further amended in the following manner :-
"(i)
(a) The Government decided that the first preference shall be given to various corporations, institutions of State, (excluding U.P. Forest Corporation Limited) for their own requirement in development work, with the condition that they will themselves or through Co-operative Societies of the persons as mentioned in clause (b), shall do the mining work,
(b) The Government further decided that the preferential field should be extended and in the preferential field which was limited to the socially and educationally backward classes (Such as Mallah, Kewat, Bind Nishad, Manjhi, Batham Dhiwar, Themor, Chai, Sorahiya, Turha, Raikwar, Kaiwrt, Khulwant, Tiyar, Gaudia, Godia and Kashyap and such other castes of society), as notified by the State Government from time to time, shall be extended with covering the scheduled castes/scheduled tribes who have obtained a certificate from the concerned District Officers or such other officer, authorized in this regard by the State Government, certifying that such person/ persons are traditionally engaged in the excavation of sand or morrum and their livelihood are depend upon it and are residents of the same district for which application for obtaining mining lease has been given, is situate. However, it was further decided that the preference of the aforesaid persons shall be limited to the extent of 50 per cent of the land available after allotment leases under clause (a) in every district.
(ii) The Government also decided that the preference will be determined between the aforesaid each categories of the applicants firstly on the basis of time and if applications have been received on the same day for the same land then in the matters referred in Sub-rule (2) of Rule 9 of the said Rules, 1983. The matters referred in Sub-rule (2) are quoted hereinbelow :-
(a) Any special knowledge or experience in mining operation possessed by the applicant;
(b) Financial resources of the applicant;
(c) The nature and quality of the technical staff employed or to be employed by the applicant;
(d) Conduct of the applicant in carrying out mining operations on the basis of previous lease or permit and in compliance of the conditions of such leases or permits or the provisions of any law in connection therewith; and
(e) Such other matters, as may be considered necessary by the State Government."
5. A request was made to the Apex Court to permit the withdrawal of the Special Leave to Appeal being Appeal No. 6370 of 2001 in order to enable the State Government to carry out the amendments as the State Government was suffering a lot of revenue loss on account of this. The said appeal was dismissed as withdrawn on 8-1-2002.
6. Thereafter the State Government brought about the 25th Amendment Rule 2002 whereby the right of preference was extended as indicated by the State Government in its Affidavit before the Apex Court referred to hereinabove. The said rules i.e. 25th Amendment rules become subject matter of challenge before this Court in Shiv Saran Singh v. State of U. P., in which a statement was made by the learned Chief standing Counsel that the said amendments are not being pressed and acted upon as the matter is engaging the attention of the Apex Court and therefore, the State Government has taken a decision to grant lease by open auction and public tender under Chapter IV of 1963 Rules. The said matter also travelled up to the Apex Court in the case of State of U.P. v. Uma Stone Crushing Company, wherein an affidavit was filed on behalf of the State of U.P. on 29-8-2002 that after the amendment in Rule 9-A (25th Amendment Rules) the mining lease under Chapter IV of the 1963 Rules will not be granted by way of public auction and there will be no preference granted in such auction. Upon the basis of the affidavit the judgment of the High Court in Uma Stone Crushing Company Ltd. was modified to the extent that preference will not apply to the auction made under Chapter IV.
7. Thereafter, a Government Order was issued on 2-11-2002 wherein it was stated that since the case of Shiv Saran Singh (supra) was still pending before the High Court and since there was a dispute with regard to the applicability of chapters II & VI of the 1963 Rules, therefore, in the interest of revenue, it has been decided by the State Government not to lease out any mining area on the basis of the preference and to resort to grant of lease only by way of auction. The said Government order was issued exercising powers under Rule 23 whereby the State Government decided to revert back to chapter IV and grant leases only by way of auction.
8. Up to this stage, there was no complaint from any quarter. It is (only when the 26th Amendment, quoted hereinabove, was introduced that the bona fide of the State Government were doubted. The 26th Amendment completely deleted and omitted Rule 9A and Rule 53-A, whereby any preferential rights under the said rules stood obliterated. However, clause (e) in Rule 9 (2) was reframed as quoted hereinabove.
9. By this amendment in Rule 9 preferential rights were created in favour of persons traditionally engaged in excavation of sand and morrum in respect of the items referred to therein "found in the river bed". The preference was to be exercised only when applications were received on the same day and only when all other things as referred to in sub-clauses (a) to (d) of clause 2 of Rule 9 was equal.
10. The matter did not rest there and the State Government came up with the 27th Amendment whereby Sub-rule (e) of Rule 9(2) was further amended and the following words were added "who belong to socially and educational backward classes (such as Mallah, Kewat, Bind, Nishad, Manjhi, Batham, Dhiwar, Themer, Chai, Sorahia, Turha, Raikwar, Kaiwrt, Khulwat, Tiyar, Gaudia, (Godia and Kashyap) and other such castes of citizens, as notified by the State Government from time to time."
11. In the aforesaid factual backdrop, the petitioners have challenged the vires of 26th and 27th Amendment Rules on various grounds as will be shortly stated hereinafter.
12. We have heard Shri S. P. Singh, learned counsel for the petitioner in Civil Misc. Writ Petition No. 46770 of 2004, Satyendra Kumar Tripathi v. State of U.P. and in Civil Misc. Writ Petition No. 50312 of 2004 Mangla Prasad Rai v. State of U. P., Shri Gaurab K. Banerji, learned Senior Advocate assisted by Shri Pankaj Mithal in Civil Misc. Writ petition No. 49799 of 2004, Vashishtha Kumar Jaiswal v. State of U. P., Shri Deo Prakash Singh in Civil Misc. Writ Petition No. 50606 of 2004, Rajesh Kumar Tripathi v. Union of India and Civil Misc. Writ Petition No. 50561 of 2004, Vinod Kumar v. The Union of India, Shri J. H. Khan in Civil Misc. Writ Petition No. 50418 of 2004, Shiva Ji Pathak v. State of U. P., on behalf of the petitioners and Shri S.M.A. Kazmi. learned Chief Standing Counsel assisted by Shri S. P. Keserwani on behalf of the respondent-State of Uttar Pradesh. An Impleadment Application has been filed by one Shri Ram Chandra in the case of Vashishtha Kumar Jaiswal, who has also been heard under Chapter XXII, Rule 5-A of the Allahabad High Court Rules and on whose behalf submissions have been advanced by Shri V. B. Upadhyay, learned Senior Counsel assisted by Shri Mukesh Prasad. A similar application has been filed by one Shri Sudhir Kumar through Shri Ram Kishore Gupta, Advocate, in the case of Vashishtha Kumar Jaiswal. Both these applicants seeking impleadment claim themselves to be the applicants for grant of mining lease seeking benefit under the impugned 27th Amendment Rules. We may now record the submissions made by the respective counsel for the parties in the order they have been placed before us.
13. Shri S. P. Singh has questioned the validity of the 26th Amendment as well as the 27th Amendment Rules referred to herein above on the following grounds :-
(i) that the impugned rules could not have been framed as the subject matter of amendment was completely beyond the powers of the State Government and hence has advanced the argument of "legislative incompetence".
(ii) that the impugned rules have been framed creating preference in favour of certain castes which amounts to nurturing "communalism" and "casteism" and, as such, it hits the basic "Secular" structure of Constitution of India;
(iii) that the impugned rules are ultra vires Article 15 and Article 19(1)(g) of the Constitution of India;
(iv) that the impugned rules are ultra vires Article 14 of the Constitution of India inasmuch as the grant of preferential rights under the impugned rules has no rational nexus with the object sought to be achieved under the Mines and Minerals (Regulation and Development) Act 1957;
(v) that the impugned rules are Ultra vires the provisions of Mines and Minerals (Regulation and Development) Act 1957 inasmuch as the impugned rules are contrary to the aims and objects of the said Act;
(vi) that the impugned rules are in clear teeth of the law laid down by the Full Bench in the case of Ram Chandra v. State of U.P. (2001(3) HVD 223) (supra) which stands affirmed by the Apex Court.
(vii) that the action of the State Government is a fraudulent exercise of power inasmuch as it has framed the Rules contrary to the intention disclosed and promise made on oath before the Apex Court in the case of Ram Chandra v. State of U. P. (supra); and
(viii) that the impugned rules are a colourable device to completely over come and defeat the affect of the ratio of the Full Bench decision in the case of Ram Chandra v. State of U. P.
14. On the basis of the aforesaid grounds, Shri S. P. Singh has further elaborated his argument which shall be dealt with hereinafter and has urged that the impugned rules will clearly result in the total exelusion and elimination of the petitioner inasmuch as the impugned rules are clearly designed to extend the monopoly of grant of lease in favour of the particular castes referred to in the impugned rules and the procedure shall be tailored in a manner that the entire benefit is concentrated and delivered in favour of such castes. He, therefore, submits that such a Rules should be struck down and declared ultra vires with a direction to the State Government to revert back to the policy of auction as intended by it earlier. He contends that the shift in policy from auctions under Chapter IV to grant of preferential rights in lease under Chapter II is not founded on any reasonable basis or rational criteria and, therefore, the Government Orders dated 28-2-2004 and 30-9-2004 should also be declared ultra vires.
15. Shri Gaurabh K. Banerji, learned Senior Counsel in Civil Misc. Writ Petition No. 49799 of 2004 has, apart from his oral argument, tendered written submissions. The arguments, which have been advanced by him in essence, are classified by him as follows in his written submissions :-
I. Any classification for the purposes of reservation on the basis of caste is not in conformity with the provisions of Article 15 of the Constitution of India. Further, impugned Rule 9(2) (3) embodies an unreasonable classification having no rationale relation or nexus with the objects of the Mines & Minerals (Regulation & Development) Act, 1957 and, hence, is violative of Article 14 of die Constitution of India.
II. The impugned Rules is in the nature of unauthorized subordinate legislation. The power to make rules to be framed by the State Government does not contemplate reservation/preference at all in favour of any class of person.
III. The impugned rule leads to 100 per cent reservation of Minor Minerals in favour of a set of castes against all norms of Reservation Policy and has an adverse bearing on the rights of other qualified persons engaged in the profession.
IV. The State Government has failed to remove the basis of the earlier Full Bench decision by the Twenty-seventh Amendment, which deserves to be struck down as a direct encroachment of the judicial power.
16. While advancing his submissions Shri Banerji has laid stress on the findings recorded by the Full Bench decision in Ram Chandra's case (2001(3) HVD 223) by this Court and has urged that looking from any angle the impugned Rules deserve to be struck down as ultra vires the constitution and the provisions of Mines and Minerals (Regulation and Development) Act 1957. He has urged that the preferential rights conferred in favour of particular caste clearly amounts to reservation and the State Government has re-introduced the very same preferential rights that have already been struck down by this Court in the Full Bench decision and the action of the State Government in framing the impugned rules is nothing else but "old wine in a new bottle". He has questioned the wisdom of the State Government in extending preferential rights to traditionally engaged people on the ground that such a reservation has absolutely no nexus with the object of development of mines and minerals indicated in the preamble of the Mines and Minerals (Regulation and Development) Act 1957. He further contends that the rules introduced do not conform to the aims and objects of the Mines and Minerals (Regulation & Development) Act 1957, which is not a piece of social legislation meant for advancing social justice and better distribution of wealth within the meaning of Article 39 of the Constitution of India.
17. Shri Deo Prakash Singh and Shri J. H. Khan, learned counsel for the petitioners in other writ petitions have also advanced their arguments on similar lines on behalf of the petitioners.
18. Shri S. M. A. Kazmi, learned Chief Standing Counsel assisted by Shri S. P. Keserwani, Advocate, has opened his submission by contending that all the petitioners, who have filed the writ petition, have an existing mining lease in their favour and, therefore, none of their rights are affected and, as such, they have no locus standi to maintain the petition. He has submitted that most of the petitioners are not even applicants for grant of mining lease and, therefore, they have no right to challenge the impugned rules, as they have no cause of action. It has been further submitted that a policy decision of the State Government by way of a legislative exercise does not deserve to be struck down unless it is manifestly unconstitutional. The petitioners, therefore, according to their submissions, are not entitled to any relief inasmuch as they have failed to make out any case for interference by this Court. It is urged on behalf of the State that framing of the Rules was well within the competence of the State Government and that the introduction of the preference in favour of certain castes is fully protected under Article 15(4) of the Constitution of India and is also saved under Article 19(6) of the Constitution. To substantiate his contention further, the learned Chief Standing Counsel has submitted that the impugned Rules have a direct nexus with the object sought to be achieved and the ratio of the Full Bench in the case of Ram Chandra v. State of U. P. (2001(3) HVD 223), can no longer be pressed into service in as much as Rule 9-A and Rule 53 already stand omitted and any deficiency which was pointed out in the Full Bench decision is absolutely non-existent in the present amended rules which are under challenge, He has urged that the action in framing the Rule by the State Government is a bona fide discharge of legislative function, which cannot be questioned by the petitioners. In order to further save the Rule, he has urged that the procedure provided under the Act and rules for identifying the traditionally engaged classes is a sufficient safeguard and the apprehensions expressed by the petitioners are totally unfounded. It is submitted on behalf of the State that the apprehension of the petitioners that they shall be completely excluded from the zone of consideration is a total misconception and, therefore, the writ petition founded on such basis cannot withstand the test and scrutiny of the constitutional provisions and hence the writ petitions are liable to be dismissed. While advancing his submissions, he has also submitted before us written submissions along with a compilation of the judgment sought to be relied upon in defence of the impugned rules.
19. Shri V. B. Upadhyay, learned Senior Advocate, appearing on behalf of the applicants in opposition to the writ petition, has urged that the State Government was fully empowered to frame the Rules inasmuch as Section 15 of 1957 Act does not prohibit the State Government from framing Rules with regard to preference. He further contends that Section 11 of the 1957 Act does not restrict the field of preference to be extended by the State Government in the manner in which it has been done by the present Rules. The object of these Rules in his submission is neither in conflict with the provisions of the 1957 Act nor does it infringe at all the fundamental rights guaranteed under the Constitution. The power given to the State Government to frame Rules, therefore, has been exercised in conformity with law and the Rules arc neither repugnant to nor violative of any of the provisions of the 1957 Act. The contentions advanced by him on behalf of applicants is that a right has been conferred under the new Rules in a very limited way and simultaneously the said rules do not elude the other socially and educationally backward classes including the Schedule Castes and Schedule Tribes from the zone of consideration. According to him, the Rules' only restrict the grant of preference in favour of such castes which are traditionally engaged in the profession of mining. He contends that the castes which have been referred to in the bracket in the impugned rules are only illustrative of the various castes which are considered to be traditionally engaged and the said illustration is not exhaustive. He has further urged that the said rules can even be read down by this Court to mean that it includes all socially and educationally backward classes including such schedule castes and schedule tribes as well who are traditionally engaged in the profession of mining. This, he contends, can be done in order to save the rule from being struck down and which will also further the aims and objects for which the rules have been framed. It is submitted by him that mere reference to certain castes does not Invalidate the Rule as being violative of Article 15(1) of the Constitution of India. To further substantiate his argument, he contends that reference may be had to the cases of P. Rajendran v. State of Madras reported in AIR 1968 SC 1012 (paras 7 & ' 8), and Kumari K. S. Jayasree v. The State of Kerala, AIR 1976 SC 2381 (paras 20 & 21). He further contends that in order to question of inclusion of such castes, there is no pleading or foundation in the writ petition nor is there any challenge to the inclusion of particular castes on. the ground that they are not traditionally engaged in the profession of mining and, therefore, not eligible for grant of preferential rights. His submission is, there is a presumption in favour of the constitutionality of the rules and since the petitioners have failed to point out any infirmity either constitutional or otherwise in the impugned rules, therefore, the writ petitions are liable to be dismissed and the validity of the Rules deserves to be upheld.
20. Before examining the rival contentions of the parties, the relevant provisions of law which are required to be examined for the purpose of adjudicating the present controversy are enumerated hereinbelow :
Article 15 of the Constitution of India as existing today is as follows :
"15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-- (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them be subject to any disability, liability, restriction or condition with regard to--
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to me use of the general public.
(3). Nothing in this article shall prevent the State from making any special provision for women and children.
((4). Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes)".
Article 19(1)(g) and Article 19(6) are also quoted hereinbelow :
"19. Protection of certain rights regarding freedom of speech, etc. - (1) All citizens shall have the right -
(g) to practise any profession, or to carry on any occupation, trade or business (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, (nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,-
(i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade 3 or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry, or service, whether to the exclusion, complete or partial, of citizens or otherwise".
Entry 54 of the List-I of the Union list is quoted hereinbelow :
"54. Regulation of mines and mineral 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."
Entry 23 of the List-II of the State list is quoted hereinbelow :
"23. Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union".
20A. The provisions of the Mines & Minerals (Regulation & Development) Act 1957 which have been referred to by either of the parties are detailed hereinafter: Preamble :
An Act to provide for the (development arid regulation of Mines and Minerals) under the control of the Union of India.
11. Preferential right of certain person.- (1) Where a reconnaissance permit or prospecting licence has been granted in respect of any land, the permit holder or the licensee shall have a preferential right for obtaining a prospecting licence or mining lease as the case may be, in respect of that land over any other person :
Provided that the State Government is satisfied that the permit holder or the licensee, as the case may be-
(a) has undertaken reconnaissance operations or prospecting operation, as the case may be, to establish mineral resources in such land;
(b) has not committed any breach of the terms and conditions of the reconnaissance permit or the prospecting licence;
(c) has not become ineligible under the provisions of this Act; and
(d) has not failed to apply for grand of prospecting licence or mining lease, as the case may be, within three months after the expiry of reconnaissance permit or prospecting licence, as the case may be, or within such further period, as may be extended by the said Government.
(2) Subject to the provisions of Sub-section (1), where the State Government has not notified in the Official Gazette the area for grant of reconnaissance permit or prospecting licence or mining lease, as the case may be, and two or more persons have applied for a reconnaissance permit, prospecting licence or a mining lease in respect of any land in such area, the applicant whose application was received earlier, shall have the preferential right to be considered for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, over the applicant whose application was received later;
Provided that where an area is available for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be and the State Government has invited applications by notification in the Official Gazette for grant of such permit, licence or lease, all the applications received during the period specified in such notification and the applications which had been received prior to the publication of such notification in respect of the lands within such area and had not been disposed of, shall be deemed to have been received on the same day for the purposes of assigning priority under this sub-section:
Provided further that where any such applications are received on the same day, the State Government, after taking into consideration the matter specified in Sub-section (3), may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be, to such one of the applicants as it may deem fit.
(3) The matters referred to in Sub-section (2) are the following-
(a) any special knowledge of, or experience in, reconnaissance operations, prospecting operations or mining operations, as the case may be, possessed by the applicant;
(b) the financial resources of the applicant;
(c) the nature and quality of the technical staff employed or to be employed by the applicant;
(d) the investment which the applicant proposes to make in the mines and in the industry based on the minerals;
(e) such other matters as may be prescribed.
(4) Subject to the provisions of Sub-section (1), where the State Government notifies in the Official Gazette an area for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, all the application received during the period as specified in such notification, which shall not be less than thirty days, shall be considered simultaneously as if all such applications have been received on the same day and the State Government after taking into consideration the matters specified in Sub-section (3), may grant the reconnaissance permit, prospecting, licence or mining lease as the case may be to such one of the applicants as it may deem fit, (5) Notwithstanding anything contained in Sub-section (2), but subject to the provisions of, Sub-section (1), the State Government may for any special reasons to be recorded, grant a reconnaissance permit, prospecting licence or mining lease as the case may be, to an applicant whose application was received later in preference to an application whose application was received earlier:
Provided that in respect of mineral specified in the First Schedule, prior approval of the Central Government shall be obtained before passing any order under this subsection.
13. Power of Central Government to make rules in respect of minerals.- (1) The Central Government may, by notification in the Official Gazette, make rules for regulating the grant of (reconnaissance permit, prospecting licence and mining leases), in respect of minerals and for purpose connected therewith.
(2) 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 by whom, and the manner in which, application for (reconnaissance permit, prospecting licences and mining leases), in respect of land in which the minerals vest in the Government may be made and the fees to be paid thereof;
(b) the time within which and the form in which acknowledgment of the receipt of any application may be sent;
(c) the matter which may be considered where applications in respect of the same land are received on the same day;
(d) [* * *]
(e) the authority by which (reconnaissance permit, prospecting licences or mining leases,} in respect of land in which the minerals vest in the Government may be granted;
(f) the procedure for obtaining (reconnaissance permit propspecting licence or mining lease) in respect of any land in which the minerals vest in a person other than the Government and the terms on which and the conditions subject to which, such a (permit licence or lease) may be granted or renewed;
(g) the terms on which, and the conditions subject to which, any other (reconnaissance .permit, prospecting licence or mining lease) may be granted or renewed;
(h) the facilities to be afforded by holders of mining leases to person deputed by the Government for the purpose of undertaking research or training in matters relating to mining operations;
(i) the fixing and collection of fees for (reconnaissance permit, prospecting licences or mining leases), surface rent, security deposit, fines, other fees or charges and the time within which and the matter in which the dead rent or royalty shall be payable;
(j) the manner in which rights of third parties may protected (whether by payment of compensation or otherwise) in case where any such party may be prejudicially affected by reason of any (reconnaissance, prospecting or mining operation).
(k) the grouping of associated minerals for the purposes of Section 6;
(l) the manner in which, and the conditions subject to which, a prospecting licence or a mining lease may be transferred;
(m) the construction, maintenance and use of road, power transmission lines, tramways, railways, aerial ropeways, pipelines and the making of passages for water for mining purposes on any land comprised in a mining lease;
(n) the form of register to be maintained under this Act;
(o) (* * * * *)
(p) the reports and statements to be submitted by holders of (reconnaissance permit or propspecting licences,) or owner of mines and the authority to which such reports and statements shall be submitted;
(q) the period within which application for revision of any order passed by a State Government or other authority in exercise of any power conferred by or under this Act, may be made (the fees to be paid therefor and the documents which shall accompany such applications) and the manner in which such applications shall be disposed of;
(qq) the manner in which rehabilitation of flora or other vegetation such as trees, shrubs and the like destroyed by reason of any prospecting or mining operations shall be made in the same area or in any other area selected by the Central Government (whether by way of reimbursement of the cost of rehabilitation or otherwise) by the person holding the prospecting licence on mining leases; and
(r) any other matter which is to be, or may be, prescribed under this Act.
15. Power of State Government to make rules in respect of minor minerals. - (1) The State Government may, by notification in the Official Gazette, make Rule for regulating the grant of (quarry leases and mining leases or other mineral concessions) in respect to minor minerals and for purposes connected therewith.
[(1-A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely-
(a) the person whom and the manner in which, applications for quarry leases and mining leases or other mineral concessions may be made and the fees to be paid therefor;
(b) the time within which, and the form in which, acknowledgment of the receipt of any such applications may be sent;
(c) the matters which may be considered where applications in respect of the same land are received within the same day;
(d) the terms on which, and the conditions subject to which and the authority by which quarry leases, mining leases or other mineral concession may be granted or renewed;
(e) the procedure for obtaining quarry leases, mining leases or other mineral concessions;
(f) the facilities to be afforded by holders of quarry leases, mining leases or other mineral concession to person deputed by the Government for the purpose of undertaking research or training in matters relating to mining operation;
(g) the fixing and collection of rent, royalty, fees dead rent, fines or other charges and the time within which and the manner in which these shall be payable;
(h) the manner in which rights of third parties may be protected (whether by way of payment of compensation or otherwise) in cases where any such party is prejudicially affected by reason of any prospecting or mining 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 area or in any other area selected by the State Government (whether by way of reimbrusement of the cost of rehabilitation or otherwise) by the person holding the quarrying or mining lease;
(k) the manner in which and the conditions subject to which, a quarry lease, mining lease or other mineral concession may be transferred;
(k) the construction, maintenance and use of roads, power transmission lines, tramways, aerial, ropeways, pipelines and the making of passage for water for mining purposes on any land comprised in a quarry or mining lease or other mineral concession;
(1) the form of registers to be maintained under this Act;
(m) the reports and statement to be submitted by holders of quarry or mining leases or other mineral concession and the authority to which such reports and statements shall be submitted;
(n) the period within which and the manner in which and the authority to which applications for revision of any order passed by any authority under these rules may be made, the fees to be paid therefor, and the powers of the revisional authority; and
(o) any other matter which is to be, or may be, prescribed.] (2) Until rules are made under Sub-section (1), any rules made by a State Government regulating the grant of (quarry leases, and mining leases or other mineral concessions) in respect of minor mineral which are in force immediately before the commencement of this Act, shall continue in force.
(3) The holder of a mining lease or any other mineral concessions granted under any rule made under Sub-section (1) shall pay (royalty or dead rent, whichever is more) in respect of minor mineral removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee at the rate prescribed for the time being in the rules framed by the State Government in respect of minor minerals:
Provided that the 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).
The Rules 6, 7, 8 and unamended Rule 9 of the U.P. Minor Minerals (Concession) Rules, 1963 are quoted hereinbelow :
"6. Application fee and deposit for grant of mining lease. - (1) Every application for grant of a mining lease shall be accompanied by-
(a) a fee one thousand rupees,
(b) a deposit of two thousand rupees for meeting the preliminary expenses, other than those specified in Rule 17, and
(c) four copies of the cadastral survey map on which the area applied for is clearly marked and in case such area is not covered by cadastral survey, four copies of topographical survey map on a scale at least 4" = 1 mile, on which the area applied for is accurate marked.
(d) a certificate, issued by the District Officer or by such officer as may be authorised by the District Officer in this behalf, showing that no mining dues are outstanding against the applicant;
Provided that further that such certificate shall not be required where the applicant has furnished an affidavit to the satisfaction of the State Government, stating that he does not hold or had not held any mining lease or other mineral concession in the territory of the State.
(e) A certificate of caste and residence of the applicant, where the application is for mining lease of sand or morrum or bajri or boulder or any of these in mixed state.
(f) A character certificate given by the District Officer of the District, where the applicant permanently resides.
(2) If the application is not complete in any respect or is not accompanied by the fee deposit or the documents mentioned in Sub-rule (1) the District Officer or the officer authorised by the State Government in this behalf, shall by fifteen days notice require the applicant to complete the application in all respect or, to deposit the fee or furnish the documents within such time as may be specified in the notice and if the applicant to do so within the specified time such application shall not be considered.
7. Enquiry and report. - The District Officer shall, unless he is authorised to grant or renew the mining lease, cause an enquiry to be made into all relevant matters and, within two months from the date of receipt of application of mining lease, forward two copies of the application along with his report to the State Government or to such other authority as the State Government may have authorised in this behalf.
8. Disposal of application. - (1) The State Government or the authority authorised by it in this behalf may subject to the provisions of these rules and after making such further enquiry as it may consider necessary -
(a) in case of application for grant of a mining lease refuse or grant the mining lease for the whole or part of the area applied for and for such period as it may consider proper.
(b) In the case of application for renewal of a mining lease, refuse or renew the mining lease for the whole or part of the area applied for and for such period, not exceeding the period of the original lease, as it may consider proper :
Provided that where an application for grant or renewal of a mining lease is refused or the area is reduced, reasons therefore, shall be recorded and communicated to the applicant.
9. Preferential right of certain persons.- (1) Where two or more persons have applied for a mining lease in respect of the same land the applicant whose application was received earlier shall have a preferential right for the grant of lease over the applicant whose application was received later :
Provided that where such applications are received on the same day, the State Government may after taking into consideration the matters specified in Sub-rule (2), grant the mining lease to such one of the applicant as it may deem fit.
(2) The matters referred to in Sub-rule (1) are-
(a) Any special knowledge or experience in mining operations possessed by the applicant;
(b) The financial resources for the applicant;
(c) The nature and quality of the technical staff employed or to be employed by the applicant;
(d) The conduct of the applicant in carrying out mining operations on the basis of any previous lease or permit and in complying with conditions of such lease or permit or the provisions of any law in connection therewith; and
(e) Such other matters as may be considered necessary by the State Government (3) Notwithstanding anything contained in Sub-rule s (1) and (2), the State Government may, for any special reasons to be recorded grant a mining lease to an applicant whose application was received later in preference to an applicant whose application was received earlier.
21. In order to appreciate the submissions, we take up the first issue advanced on the question of "legislative competence". Sri S.P. Singh has urged that since the Rules framed by the State Government are a piece of subordinate legislation framed under Section 15 of the 1957 Act, therefore, the Rules cannot be permitted to travel beyond the aims and objects of the 1957 Act. While examining the said question, he contends that a perusal of entry 23 of List II read with entry 54 of List I would leave no room for doubt that the power of the State Government to legislate on the subject is clearly limited to such matters with regard to which no law has been made by the Parliament. He contends that since the Parliament had already enacted the 1957 Act and since the said Act does not permit the State Government to frame Rules creating preferential rights in favour of particular castes, the State Government has totally travelled beyond its jurisdiction and powers in framing the impugned rules and, therefore, the same suffers from legislative incompetence. The said submission of Shri S.P. Singh cannot be appreciated inasmuch as Section 15 of the 1957 Act itself empowers the State Government to frame Rules for grant of lease and while doing so, it can regulate the said grant by providing "for the persons" in whose favour such a lease is to be granted. This expression "persons" in whose favour lease is to be granted finds clear reference in Section 15(1-A)(a), which has already been quoted hereinabove. In these circumstances, the question of legislative incompetence on this ground does not arise at all and, thus, we find that the State Government was empowered to frame Rules for grant of preferential rights. To further substantiate the same it would be appropriate to refer to Section 11 of the 1957 Act, which has also been quoted hereinabove, and which clearly envisages grant of preferential rights. Thus, it cannot be said that the legislature never intended to create preferential rights. The competence is possessed by the Parliament and the Parliament by specifically providing in Section 15 has clearly conferred such a power on the State Government. The contention of the learned counsel for the petitioner that the impugned Rule suffers from the vice of legislative incompetence is, therefore, liable to be rejected.
22. Shri Gaurab K. Banerji has urged that the impugned Rules clearly amount to unauthorised subordinate legislation, as the power to frame the Rule under Section 15 does not contemplate reservation or preference at all in favour of any class or persons. To advance his submission, Shri Banerji has relied on four decisions namely (2000) 5 SCC 451 : (AIR 2000 SC 2143); (1997) 4 SCC 552 : (AIR 1997 SC 2252); 1986 (Suppl) SCC 20 : (AIR 1986 SC 1323) and paras 30 to 34 of the Full Bench decision of Ram Chandra's case (2001 (3) HVD 223).
23. Judging the impugned Rules in the light of the aforesaid decisions, we are of the opinion that the impugned Rule does not travel beyond the scope of the enabling Act. A conjoint reading of Section 11 read with Section 13 of the 1957 Act and Rule 9 of the 1963 Rules as it stood prior to the amendment would clearly indicate that preferential rights were clearly contemplated to be given provided the person concerned fulfilled the eligibility condition as referred to in the said Rule. The said provisions do not prohibit the extension of any such benefit and as already held hereinabove, Section 15(1)(A)(a) in our opinion empowers the State Government to regulate the grant of mining lease in favour of persons in the manner in which the State Government directs the consideration of grant of such lease. There is no challenge to the provisions contained in Section 15 at all. The spirit of the Rule, which is sought to be impugned by the petitioners, is in the opinion of this Court not in derogation to object of advancement regulation and development of minerals. In the absence of any such foundation the argument on behalf of the petitioner, therefore, deserves to be rejected.
24. The State Government is not denuded of its power nor is the framing of such Rules ousted from the powers of the State Government. The State Government is not prohibited from framing such a Rule and as such a Rule cannot be said to be suffering from the vice of excessive delegation. The Apex Court considering the earlier decision in D.K. Trivedi's case 1986 (Suppl) SCC 20 : (AIR 1986 SC 1323), has held that no restrictive meaning can be given to the powers conferred on the State to frame such Rules. Reference may be had to paras 28 to 33 of the case of The Quarry Owners Association v. The State of Bihar, (2000) 8 JT (SC) 539 : (AIR 2000 SC 2870).
25. The next contention advanced by Shri S.P. Singh is with regard to the Rule being unconstitutional as it hits the basic structure and basic feature of the Constitution namely "Secularism" Shri Singh has advanced his submission drawing support from the observations made by the Full Bench in the case of Ram Chandra v. State of U.P. (2001 (3) HVD 223) (supra). He contends that since the preferential rights with which we are presently concerned are in favour of particular castes as such they are hit by Article 15(1) of the Constitution of India and since such a Rule promotes casteism and communalism, therefore, it also is against the secular character of our Constitution and are, thus, liable to be struck down. Upon the plain examination of the Rules it would be evident that the preferential rights are hedged by limitations. The preference cannot be claimed automatically and preference can be considered only if the conditions for consideration of such preference come into existence. The preference is not available merely on the ground of castes as shall be explained hereinafter. In order to appreciate the said submission it is necessary to refer to the words used in the Rule "is/are traditionally engaged" whereby the benefit of the Rules is clearly intended to be given to only such persons, who are traditionally engaged at present i.e. on the date of the commencement of (he Rules. The benefit, therefore is not extend to all the Members of the castes referred to in the Rule thus, the preference is not simply on the ground of caste only and, therefore, the contention of the learned counsel for the petitioners that the same tends to promote casteism and communalism cannot be accepted. In view of this, the argument that the said rule hits the basic structure of the Constitution is absolutely misplaced and is also, therefore, rejected.
26. The next argument advanced is that the impugned Rules are clearly hit by the provisions of Article 15(1) of the Constitution of India and the classification granting preference to particular castes is an absolutely unreasonable classification having no rational nexus with the objects sought to be achieved under the 1957 Act. This, according to the petitioner's counsel, violates Article 14 of the Constitution of India as well. The said argument has been advanced by all the learned counsel for the petitioner including Sri Gaurab K. Benerji, learned Senior Advocate, as such, the same is being answered by taking into account the aforesaid submissions of all the counsel collectively.
27. Taking up the question of Article 15(1) first, in our opinion , one will have to keep in mind the provisions of Article 15(4) of the Constitution. The Constitution provides that law can be made by parliament for making any special provision for the "advancement" of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes. The intention of the impugned Rules, as also contended by the learned Chief Standing Counsel, is clearly to provide preference to such castes who at present are traditionally engaged in the profession of mining and which is intended for the advancement of such castes. The provision of preference in favour of castes, however, is available only to such persons, who have applied on the same day and who fulfill the other conditions as referred in clauses (a) to (d) of Sub-rule (2) of Rule 9.
28. The contention of the learned Chief Standing Counsel to the effect that the preference to such castes will not be available unless and until the other things referred to in clauses (a) to (d) (supra) are equal also deserves to be accepted and that also appears to be the intention of the Rule. The preferential rights are not a blanket reservation in favour of such castes as suggested by the learned counsel for the petitioners. The preference extended is clearly saved under Article 15(4) of the Constitution inasmuch as neither the Parliament has intended to prohibit the extension of any such benefit under the 1957 Act nor is the State Government prohibited from making any such rule under Section 15 of the said Act. The same has a rational nexus also inasmuch as the preferential benefit is extendable only to minerals found in the riverbeds. The castes referred to in the impugned Rules are the castes which are referred to in Sathi Commission's report of 1977, the copy whereof was also produced before us. These castes are reported to be residing in areas adjoining such riverbeds where the minor minerals are to be found and such castes are also referred to be traditionally engaged in the profession of mining of such minerals. The petitioners have not pleaded any facts nor have they laid any foundation to challenge the traditional engagement of such castes in the profession of mining of minor minerals found in riverbeds. In the absence of any such pleading, the contention of the petitioners that the impugned Rules violate Article 15(1) of the Constitution of India cannot be accepted. Further as already indicated hereinabove, the benefit of Rule is clearly qualified to only such persons of the said castes who are traditionally engaged at present in the profession of mining of sand from riverbeds. The benefit is not extendable to all the Members of the said castes. It can, thus, be safely presumed that, the State Government has taken due care by not being oblivious of the object of 1957 Act, which is for the advancement of regulation and development of minerals. The learned Chief Standing Counsel has urged that persons who are traditionally engaged and are also of a particular caste shall with their vast experience in the profession of mining minerals from riverbeds be in a better position to continue the advancement of mining operations. There is no reason to disbelieve or disagree with the aforesaid proposition of the learned Chief Standing Counsel nor are there any facts pleaded to the contrary by the petitioners so as to arrive at another conclusion. The person, to whom the benefit of preference is to be extended, has also to possess the qualifications as referred to in clauses (a) to (d) of Sub-rule (2) of Rule 9. The question of getting the preference without possessing the aforesaid conditions of eligibility does not arise. This position is clearly admitted to the Chief Standing Counsel Shri S.M.A. Kazim during the course of his submissions on behalf of the State Government. The learned Chief Standing Counsel has further submitted that the consideration of preference is, one of the remote and last compulsive options to be exercised by the State Government, only in the event a possibility of more than one application being received on the same day, as contemplated under the proviso to Rule 9(1). He submits that such a possibility is a very remote possibility and in most of the cases may not arise at all and, therefore, such a. preference in order to enable the State Government to settle mining rights cannot be said to be violative of Article 15(1) of the Constitution of India. The impugned rule, in our opinion, is a special provision which does not put an end or negate the substantive rights of any other class of persons. The provision of preference is a very limited provision and available to the State Government only in the circumstances indicated herein-above and as suggested by the learned Chief Standing Counsel. Even otherwise these preferential rights fall within the category of protective discrimination or compensatory discrimination clearly intended to bring about the progress and advancement of mining operations to a limited area of minerals found in riverbeds only. The preference, in the opinion of the Court, applies horizontally in a limited field and is not a compulsory preference operating vertically.
29. Coining to the question as to whether the same is hit by Article 19(1)(g) or not it is clear that there is a rational nexus with the object which is sought to be achieved by the introduction of the impugned rules. The object sought to be achieved is to provide an option of preference to persons who are traditionally engaged in the profession of mining minerals found in river beds without shutting out or prohibiting the participation of the public in general under Rule 9(1). A perusal of Rule 9(1) would clearly indicate that the persons whose application is received prior in point of time shall be given preference irrespective of any caste and creed. During the course of argument a clarification was sought from the learned Chief Standing Counsel, who after receiving Instructions from the State Government, clearly stated that the question of preference by caste and did not arise at all in respect of applications received under Rule 9(1) on different dates. The question of consideration of preference under Rule 9(2)(e) would only arise, in the submission of the learned Chief Standing Counsel, if after all the conditions referred to in clauses (a) to (d) of Sub-rule (2) of Rule 9 are fulfilled and not otherwise. There appears to be a reasonable nexus with the objects sought to be achieved and, therefore, the rule impugned herein stands saved clearly under Article 19(6) of the Constitution of India. Apart from this the manner in which the Rule of preference has been limited and hedged by rigid conditions, the same in no manner tends to abrogate or negate the rights of any citizen/persons in general. In the opinion of this Court, the provision does not in any way infringe the right of freedom of carrying out of trade and business as guaranteed under Article 19(1)(g) of the Constitution of the public at large. There is no material even pleaded in the writ petition to substantiate that the impugned rules in any way infringe Article 19(1)(g) of the Constitution of India.
30. At this juncture it is pertinent to deal with the argument advanced by Shri Gaurab K. Banerji, that the Full Bench decision in Ram Chandra's case (2001 (3) HVD 223), relying on the earlier Supreme Court decision, struck down Rule 9(A) which had granted preference in the same way as in the present Rule and, as such, on a parity of the same reasoning the present Rule also deserves to be struck down as being viola-tive of Article 15(1) of the Constitution of India. The said argument of Shri Gaurab K. Banerji cannot be accepted inasmuch as there is a clear distinction between Rule 9(A) and the present amendment in the impugned Rule 9. While striking down Rule 9(A) the Full Bench has observed that the presumption that only those castes which were referred to in Rule 9(A) were eligible for preference was founded on no rational criteria. In the instant case, as already noticed above, there is a rational basis for extending preference to traditionally engaged persons of such castes as illustrated in the impugned Rules. The argument of Shri V.B. Upadhyay on behalf of the respondents in this regard also deserves to be accepted. In Rule 9(A), according to his submissions, the words used were "means" which clearly narrowed down the zone of consideration in favour of particular castes and preference therein was clearly in favour of particular castes. He, therefore, submits that in contradistinction to the said Rule 9(A), the present impugned Rule extends preference by qualifying the preference to castes by using the word "as" which is only illustrative and does not constrict or narrow down the zone of consideration as it was there in Rule 9(A). Shri Upadhyay has placed reliance on (1990) 3 SCC 682 (para 72) and AIR 1995 SC 1395 (para 19). The contention of Shri Upadhyay, in our opinion, appears to be correct and deserves to be accepted. The benefit extended under the Rule is not merely and only on caste basis founded on a rational basis which does not suffer from vice of unconstitutionality.
31. The contention on behalf of the petitioners that the 1957 Act is not a social piece of legislation and it has riot been framed with a view to facilitate redistribution of national wealth is an argument which also cannot be accepted. There is no basis or material brought on record to demonstrate that extending of such a preference in the circumstances as indicated hereinabove, would impede mineral development and would not subserve the cause of public interest. The burden of providing such an eventuality was clearly on the petitioners which the petitioners have failed to discharge and, as such, the contention that the Rules are not in accordance with the objects of 1957 Act cannot be accepted.
32. Another submission which has been raised is that since the present Rules do not ensure the selection of most deserving candidates and that the Rule favours particular castes is also an argument in futility. The learned Chief Standing Counsel has invited our attention to Rules 6 to 8 and thereafter to Rule 9(2)(a to d) and has urged that it is only after these conditions are fulfilled that the question of preference will arise in case the applications are received on the same day. A perusal of the aforesaid Rules would leave no room for doubt that the State Government has taken ample care and due caution for applying a fair procedure for consideration of applications. Apart from this, the State Government has clearly defined that the preference shall he extended only after a certificate is provided under the Rules to the effect that a person is traditionally engaged in the profession of mining sand from riverbeds at the time of moving of the application. The learned Chief Standing Counsel has, upon instructions from the State Government, submitted that the procedure for identifying a person as to whether he is traditionally engaged or not, a complete inquiry shall be made through the revenue officials and the officials of the mining department and, it is only after proper identification that a certificate shall be issued and not otherwise. It is submitted by him that the identification process shall be founded on objective factors and the certificate shall not be merely issued on the basis of caste or hearsay information. The aforesaid submissions of the learned Chief Standing Counsel is a clear admission on behalf of the State Government and there is no reason for the time being to disbelieve the submissions made by the learned Chief Standing Counsel Shri S.M.A. Kazmi on this score. It has time and again been vehemently stated by the learned Chief Standing Counsel that the State Government shall ensure the observance of all the Rules and such other procedure as indicated by him for identifying the traditionally engaged persons before consideration of their claim of preference. The argument of the petitioners, therefore cannot be comprehended and are hereby rejected.
33. Shri S.P. Singh has urged that course of events after the decision in the Full Bench case in Ram Chandra (2001 (3) HVD 223) clearly Indicates that there was a motivated shift in the policy of the Government with the sole intention of providing benefit to particular castes. Even though there is no factual foundation for advancing such a submission yet we proceed to consider the same in order to clarify the legal aspects on the matter. Shri Singh contends that the State Government firstly came with the 25th amendment in the Rules which did not. provide for any such reservation in favour of castes and was clearly intended to subserve public interest. He contends that the State Government itself framed the aforesaid 25th Amendment Rules in regard to promise made by it on oath in the shape of an application filed before the Apex Court dated 10-11-2001 which has been appended along with Civil Misc. Writ Petition No. 49799 of 2004 as Annexure 3. In order to circumvent the said promise, the respondent-State Government initially switched over to auctions but has again now reverted back to the same old position by granting mining lease by giving preference to particular castes. This policy to shift according to Shri S.P. Singh, is a clear mala fide act on the part of the State Government for no reason. Shri Gaurab K. Barierji also in his written submissions traced the history of the aforesaid shift in the stand of the State Government and has contended that the State Government has framed the impugned rules without successfully overcoming the deficiencies pointed out in the Full Bench decision and is even otherwise indicative of clear disregard to the law laid down in the Full Bench decision of Ram Chandra's case.
34. We have examined the aforesaid contention and it would be appropriate to refer to Rule 23 of the U.P. Minor Mineral (Concession) Rules, 1963 at this stage. A perusal of the said Rule and a bare reading of the relevant provision in this regard would leave no room for doubt that the State Government has the power to choose the manner in which it proposes to settle mining lease. The power can be clearly spelled out and, as such, the stand of the petitioner that the State Government cannot shift its policy from grant of mining leases by settlement of grant of mining lease by way of auction and vice versa cannot be accepted. The reasons for such shift is clearly visible in the Government Orders which have been filed on the record. The learned counsel for the petitioners have laid much emphasis on the Government Order dated 2-11-2002 to demonstrate that the State Government itself had found that the grant of lease could only be done by way of auction and not by giving any preference and, as such, the present impugned Rules are liable to be struck down as also the policies declared by the State Government in this regard vide Government Orders dated 28-2-2004 and 30-9-2004. A perusal of the Government Orders of the year 2004 referred to hereinabove would indicate that the State Government had spelled out clear reasons for reverting back to grant of mining leases under Chapter II. We do not find any reason to accept the contention of the petitioners that the shift in policy was without any reason or a mala fide act. The acceptance of a particular policy by the Slate Government is well within the powers of the State Government and is not contrary to the powers conferred on it. Even otherwise the same being in the nature of the policy decision it cannot be interfered with by this Court in the exercise of its power under Article 226 of the Constitution of India unless and until it is demonstrated that such an act is ultra vires the Constitution or the provisions of the Act under which such a policy decision was taken. In the instant case the said policy decision of reverting back to grant of lease under Chapter II is neither violative of any of the provisions of the 1957 Act or the 1963 Rules nor does it suffer from the vice of unconstitutionality. The contention of the petitioner, therefore, on this score is also liable to be rejected.
35. One of the contentions advanced by Shri Banerji is that the rule impugned herein creates 100% reservation in favour of a set of castes and, therefore, has an adverse bearing on the rights of other qualified person engaged in the profession. The said contention is devoid of merit inasmuch as the rights conferred by way of preference are very limited rights. In the normal and ordinary course (sic) means to place before; to stamp a Court of value, to like better, to bring forward, to promote; to give priority; to advance; and to discriminatory in favour. To prefer, thus, means to choose while determining priority. In the instant case, this, Rule of preference is to be applied firstly when it relates to a minor mineral found in a river bed. The preference has not to be exercised in respect of all minerals found anywhere. Secondly the preference has to be exercised only in favour of persons who are traditionally engaged for the time being in the profession of mining sand or morrum. Thirdly the castes referred to in the rule are illustrative and not exhaustive. Fourthly the question of preference would arise only when applications are received on the same day and not otherwise. This stand has been admitted by the learned Chief Standing Counsel during the course of his submissions. While considering the preference a person claiming such right will also have to fulfill the conditions laid down in Rule 6 read with clauses (a) to (d) of Rule 9 (2). A perusal of these provisions and the procedure provided for implementing such a preference would clearly indicate that people of the general category are not excluded from the zone of consideration. It is only in the contingency referred to in Rule 9(2) that the Rule of preference will be pressed into service and not otherwise. The argument, therefore, that there is 100% reservation in favour of particular castes is misplaced.
36. As already observed earlier, the Rules impugned herein does not bring about any vertical reservation to the extent of 100% on the contrary the Rule will only be pressed into service only if it is required to be done in the circumstances indicated in Rule 9 and not otherwise and moreover, only if the persons are found to be traditionally engaged in the profession. The reasoning of the Full Bench in this regard is not at all applicable herein inasmuch as, there the zone of consideration was confined to a particular set of castes. The present Rule does not confine the consideration of preference to a particular set of castes and is even otherwise applicable only when all other things are equal. In view of this, the reliance placed by the petitioners on the basis of (he reasoning given in the Full Bench, cannot be accepted.
37. Another limb of the same argument is that there cannot be any preference only to persons traditionally engaged as this would also amount to a reservation of the same nature. We have already dealt with this question that traditional engagement does not in any way impede the advancement, regulation and control of mineral development of minor minerals. There is no fact pleaded nor any substantial foundation laid in any of the writ petitions to demonstrate that grant of mining rights in favour of traditionally engaged persons would in any way defeat the purpose and intent of either the 1957 Act or the 1963 Rules. As already indicated hereinabove, there is no challenge to the fact that the castes referred to in the impugned rules are not traditionally engaged and there is no basis or any fact pleaded in this regard.
38. The next question is as to whether the Rules are unbridled and whether ample guidelines are not provided for the exercise of such power. The Rules clearly provide for determination of the persons entitled to preference of objective considerations and not only caste. A perusal of Rules 6 to 8 and Rule 9(1) read with Rule 9(2) clearly spells out the guidelines on the basis whereof the selection of preference has to be made. The inclusion of such other castes for giving preference, as indicated in the Rule, has to be done by way of notification by the State Government after identifying the such castes which are traditionally engaged in the profession of mining and are socially and economically backward. The guidelines provided under 1963 Rules are guidelines which are well within the power of the State Government which has been authorised to frame such Rules by way of subordinate legislation under Section 15 of the 1957 Act. Such a power conforms to Section 15(1A)(a) of the 1957 Act.
39. Another aspect of the matter is that the impugned Rule does not create any monopoly in favour of any particular caste or castes. The Rule is only an extension of availability of preferential rights in a very limited particular contingency, thus, the said Rule appears to be a very reasonable provision by way of a preference and which cannot be said to be impinging. The fundamental rights guaranteed under Article 19(1)(g) of the constitution of the public at large. The discrimination proposed by the said Rules, in our opinion, falls within the clear exception of Article 15(4) of the Constitution of India and does not in any way infringe the fundamental rights of any citizen guaranteed under Part III of the Constitution of India. It is a reasonable classification and there is a purpose behind the framing of such a rule which the petitioners have failed to dislodge by their contentions.
40. One more aspect requires to be taken note of that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him, who attacks it, to show that there has been a clear transgression of the constitutional principles (AIR 1951 SC 41, Charanjit Lal Chowdhary v. Union of India and AIR 1960 SC 554, Hamdard Dawakhana v. The Union of India). The burden of proving of such facts which are requisite to demonstrate the constitutional invalidity of the impugned law is upon the person who challenges the same. In the instant case, the petitioners have failed to dislodge the said presumption in favour of the law and in absence of any cogent pleading the impugned rule cannot be struck down. It is true that the Court cannot be restricted only to the pleadings and would otherwise be free to satisfy itself whether the impugned provision can be sustained under any provision of the Constitution. We have extensively dealt with the situation and have found that the impugned rule can be saved under the Constitution and by giving it an interpretation which has a rational nexus with the object sought to be achieved by the said Rule.
41. The last submission which has been the sheet-anchor of all the petitioners is that the State Government has failed to remove the basis of the Full Bench decision in Ram Chandra's case (2001 (3) HVD 223) (supra) and the action of the State in introducing the rule is a direct on-slaught on the judiciary. The State Government in the submission of the petitioners has fraudulently overruled the decision of Ram Chandra's case, rendering it ineffective and have further contended that the State's attempt to remove the deficiencies has utterly failed.
42. To examine the aforesaid contention it is necessary to keep in mind that the legislature can make new laws by changing the basis of any judgment. This principle of law was laid down way back in Shri Prithvi Cotton Mill's case, reported in AIR 1970 SC 192 and which has been explained in P. Kannadasan v. State of Tamil Nadu, AIR 1996 SC 2560 (para 13). The State Government has omitted Rule 9(A) and Rule 53-A entirely by repealing it under the 26th Amendment Rules. Thus, the entire dispute pertaining to the said Rules which was decided by the Full Bench in Ram Chandra's case (2001 (3) HVD 223) and the basis thereof has been omitted. The contention of the petitioners that even though the Rules have been omitted yet the ratio of the Full Bench decision of Ram Chandra's still applies with full force cannot be accepted in view of the following reasons :
43. The Full Bench decision proceeded on the basis that the presumption whereupon Rule 9A and Rule 53-A were framed was a imaginary presumption inasmuch as such presumption had no basis. The explanation which had been added to Rule 9A was found by the Full Bench to be based on a presumption that no person belonging to the castes referred to therein shall ever adopt any profession other than excavation of sand or morrum. The effect of the aforesaid ratio and the deficiency pointed out in the said rule now stands cured as in our opinion the present impugned rule provides preference only to persons who are traditionally engaged and the preference is not confined to particular castes as was done previously while adding the explanation to Rule 9A. Thus, in our opinion, the defects pointed out to that extent by the Full Bench has been removed by providing adequate safeguard in the present impugned Rule as discussed in the judgment hereinabove.
44. Further it is relevant to note that it is only such castes who are socially and economically backward and who are presently engaged in the profession of mining of sand and morrum are to be given preference. Thus, the other presumption which was the basis of the Full Bench decision, that the preference was irrespective of the fact as to whether the members of particular castes were or were not engaged in excavation of sand or morrum, has been clearly done away with by the State Government while framing the present impugned Rules. In view of this, the preferential rights now created under the impugned rules do not suffer from the vice of discrimination and arbitrariness. The Full Bench has further held relying on Prem Nath Sharma v. State of U.P., AIR 1997 SC 2252, that Rule 9A did not attach any significance to the guidelines of special knowledge of excavation or experience in mining operation and financial resources etc. The learned Chief Standing Counsel in this regard has clearly submitted that the rule of preference will only be pressed into service provided the other factors referred to in clauses (a) to (d) of Rule 9 (2) are fulfilled. There is no reason to dispute the same inasmuch as clauses (a) to (d) has to be appiled in order to sort out the best deserving candidate while enforcing the preferential clause. The deficiency pointed out by the Full Bench in this regard, therefore also stands cured and rectified.
45. One of the aspects dealt by the Full Bend) was that the preference amounted to a reservation on a caste basis and such a Rule confers the State Government with a blanket power which shall result in arbitrariness and may also lead to corruption. The Full Bench relied on the decision of the State of Rajasthan v. Thakur Pratap Singh, AIR 1960 SC 1208, which dealt with an exemption in favour of scheduled castes and Muslim residents from payment of a compulsory levy. The Supreme Court held the said levy to be violative of Article 15(4). The aforesaid proposition does not fall for consideration in the manner as suggested by the learned counsel for the petitioners while considering the validity of the Rules presently under challenge. We have already held and the same is reiterated that the preferential rights created under the impugned Rules is not founded purely on caste basis and is saved under Article 15(4) of the Constitution. The Rules provide for adequate safeguards to ensure experience, financial resources special knowledge and expertise to be considered while granting such preference in favour of the traditionally engaged persons. The argument, therefore, in this regard on behalf of the petitioners does not merit consideration.
46. Drawing support from the Full Bench, the petitioners further argued that 1957 Act and the 1963 Rules are not framed with a view to facilitate redistribution of national wealth nor the said enactments have been legislated for the furtherance of social justice in the Mandal Sense. Stress has been laid by the learned counsel that the main object for framing of such Rules should have been, in view of the decision of the Full Bench, to preserve the national wealth by prudent and discriminating exploitation of mineral. After considering the aforesaid submissions in detail, we are in vain to find out any demonstrable valid reason to invalidate the Rule on the aforesaid proposition. The impugned rule has been framed to extend preferential rights in a limited way of traditionally engaged persons. As already pointed out by us in this judgment, these traditionally engaged persons have been engaged in the profession of mining minerals from river beds and for the said purpose the State has relied on the Sathi Commission Report which has been placed before us through the written submissions of the learned Standing Counsel. The persons, who are already in the profession of mining by way of their traditional engagement cannot be said to be a imprudent choice by the State to extend the benefit of preference. Such persons are directly associated with the profession of mining and, as such, there is a presumption in favour of such persons to have better knowledge and expertise apart from the professional skills which they are required to possess in addition to the qualification referred to in Rule 6 and Rule 9(2) (a) to (d). Thus, the qualification of traditional engagement is over and above the qualification referred to hereinabove and not bereft of the same. The State Government, therefore, cannot be said to have framed the Rule in an imprudent manner. The preference if is to be exercised in favour of such persons would not in any way diminish the conservation of national wealth of minor minerals and exploitation thereof. There is no material or pleading on the record made by the petitioners to dislodge the aforesaid presumption. In view of this it can be safely assumed that the State Government has taken due care and caution to eliminate the aforesaid defects as suggested by the learned counsel for the petitioners to have been pointed out by the Full Bench in Ram Chandra's case (2001 (3) HVD 223).
47. Another facet which was emphasised in the Full Bench was the aspect of unauthorised subordinate legislation attempted by the State Government while framing Rules 9-A and 53-A. The Full Bench traversed through the ratio of D.K. Trivedi and Sons v. State of Gujarat, 1986 (Supp) SCC 20 : (AIR 1986 SC 1323) and held that the State Government cannot treat the provision of Sections 4 to 12 of the 1957 Act to be irrelevant and the State Government should frame Rules in order to regulate the mining operations which conformed the aforesaid provision. Since the Full Bench found Rules 9A and 53-A to be not in accordance with the principles laid down in D.K. Trivedi's case and also not in accordance with aims and objects and the basic principles of the 1957 Act, therefore, the said Rules were found to be unauthorised subordinate legislation. In the instant case, we have already held that the Rules are in conformity with the 1957 Act and the 1963 Rules and are in no way derogatory to the same. On the other hand, we have also found that the Rules subserve to the object of advancement of the socially and economically backward classes and also do not in any way diminish the development regulation and exploitation of the mineral wealth of minor minerals, therefore, there is no violation of any of the principle laid down either in D. K. Trivedi's, case or the provisions of the 1957 Act. Another fact which is very significant is that D. K. Trivedi's case was rendered with Section 15 on the statute book in its un-amended form. Sub-section (1A) of Section 15 was added by way of amendment through Act No. 37 of 1986 w.e.f. 10-2-1987. This aspect, was taken note of by the Supreme Court in the case of The Quarry Owners' Association v. The State of Bihar, (2000) 8 JT (SC) 539 : (AIR 2000 SC 2870). The Apex Court held that applying Heydon's principle no such restricted interpretation can be given after the amendment in Section 15 of the 1957 Act. The Apex Court found that the State Government enjoins very wide powers to frame Rules in respect of the exploitation regulation usage and other such factors pertaining to minor minerals. The Apex. Court has ruled that in fact the Parliament itself through various amendments has been strengthening the powers of the State Government by providing guidelines for effective exercise of such powers. This also helps in avoiding any incongruities that are likely to occur in the absence of any such power presumed in favour of the State. The Apex Court ruled that the courts must adopt the construction which suppresses the mischief and advances the remedy. The imposition of royalty by the State Government was, therefore, approved in the said decision in view of the powers introduced under the amended Section 15 of the 1957 Act. In view of the aforesaid principles laid down and in view of the clear provision in clause (a) of sub-clause (1-A) of Rule 15, it cannot be said that the Rule of preference impugned herein suffers from the vice of unauthorised subordinate legislation. The State has chosen such persons to be entitled to preference by applying such safeguard which cannot be said to be arbitrary and, therefore, in our opinion, the Rules stand saved in the light of the conclusion drawn by us in this judgment.
48. On the basis of the aforesaid findings and conclusions recorded by us, we find no justification to strike down the Rules as being unconstitutional and ultra vires the provisions of 1957 Act and the Rules framed therein. There is no repugnancy nor any discernible error so as to declare the Rules being contrary to law. There is no fact pleaded which may demonstrate in order to presume that the State Government has created a monopoly in favour of all castes and has also totally excluded the participation of persons of other castes who are not referred to in the impugned Rules. There is no basis tot-any such presumption. The learned Chief Standing Counsel has made if. clear during the course of his submissions that the State Government will grant preference only to those who are traditionally engaged irrespective of caste to which they belong and the preference will not. be narrowed down to the caste referred to in the impugned rule only. We do not see nor we do find any facts pleaded so as to disbelieve the aforesaid clear-cut stand taken by the learned Chief Standing Counsel on behalf of the Slate Government. The validity of the 26th Amendment. and the 27th Amendment Rules, 2004, in the Uttar Pradesh Minor Mineral (Concession) Rules, 1963 are upheld. The writ petitions, therefore, are devoid of merits and are hereby dismissed.
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Title

Satyendra Kumar Tripathi And Etc. vs State Of U.P. And Anr. Etc.

Court

High Court Of Judicature at Allahabad

JudgmentDate
23 December, 2004
Judges
  • R Misra
  • A Sahi