DAYA SHANKAR TRIPATHI Vs. STATE OF U P

JUDGEMENT

(1.) THESE writ petitions have been filed for quashing the notices issued to the petitioners not to use the machines in the mining operations on the basis of the Government Orders issued by the State Government from time to time i. e. 30-11-2002 and 5-2-2003. As common questions are involved in all the writ petitions, as such, they are being decided by a common judgment.

(2.) THE submission raised on behalf of the petitioners is that neither under the terms and conditions of the lease deed nor under any statutory rule there is any restriction or prohibition against the use of machines for the purposes of excavation of sand. As the petitioners are using machines for carrying on mining operations from the river bed and no restrictions whatsoever were placed on the use of machines by the respondents. In view of Rule 40 (c) of the Rules, specifically mentions the use of machines for carrying on mining operations. THE condition of the lease deed provide for the removal of machines etc. after the expiry of the lease deed meaning thereby that using of machines are permitted. THE impugned orders mentioned that uses of machines are prohibited by the Government Order. It has further been submitted on behalf of the petitioners that that the Government Order dated 30-11-2002 stating therein that inclusion of the condition of prohibition against the use of machines in the lease deed is without any basis and is against the statutory Rule 40. Further the Government Order dated 5-2- 2003 has been issued on the basis of recommendations of Director, Geology and Mining, dated 16-1- 2003. Under Section 4 (1) of the Act no prospective license or mining lease can be granted otherwise than in accordance with the provisions of the Act and Rules made there under. Section 4 of the Act is being reproduced below:- "section 4. Prospecting or mining operations to be under licence or lease.- (1) No person shall undertake any prospecting or mining operation in any area, except under and in accordance with the terms and conditions of a prospecting licence or, as the case may be, a mining lease granted under this Act and the rules made thereunder: Provided that nothing in the sub-section shall effect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement. Provided further that nothing in this sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, the Automatic Minerals Division of the Department of Atomic Energy of the Central Government, the directorate of Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limited, a Government Company within the meaning of Section 617 of the Companies Act, 1956. (2) No prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder. (3) Any State Government may, after prior consultation with the Central Government and in accordance with the Rules made under Section 18, undertake prospecting or mining operations with respect to any minerals specified in the First Schedule in any area within that State which is not already held under any prospecting licence or mining lease. "

(3.) THE petitioners have placed reliance upon the judgments of this Court in State of Uttar Pradesh & Ors. v. K. P. Sui & Anr. , reported in AIR 1977 Allahabad 279. THE another judgment relied upon by the petitioners in Jawahar Lal Jaiswal v. State of Uttar Pradesh & Ors. , reported in AIR 1981 Allahabad 292 Full Bench and two other judgments in Charan Singh v. State of U. P. & Ors. , reported in 2005 (2) JCLR 975 (All) : 2005 (3) AWC 2302 (Para 13 and 14 are relevant) and in Inam v. State of U. P. & Ors. , reported in 2003 (2) JCLR 26 (All) : 2002 (3) AWC 1977 (Para 5 of the judgment)