# (2010) 2 ILRA 755

- **Citation:** (2010) 2 ILRA 755
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-07
- **Case number:** Civil Misc. Writ Petition No. 26810 of 2010
- **Bench:** V. M. Sahai, Mrs. Jayashree Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2010-2-ilra-755-41689
- **Pages:** 4

## Headnote

S.C.

U.P. Minerals (Prevention of illegal
mining Transportation
and
Storage)
Rules 2002-13(2)-Notice to seizer of
Bolder and other article-before expiring
of One month-as provided in statuary
enactment illegal direction issued-if
reply to Show Cause Notice filed-same
shall be considered and decided-in
between seized articles be released.

Held: Para 9

If the petitioner is required to obtain
any licence for storage of boulders
within the area for which he had been
leased then such an order should have
been passed by the respondents only
after one month from the date of
service of show cause notice, giving
detailed reasons but without expiry of
one month of show cause notice the
boulders could not be seized by the
respondents in view of clear provision
of Rule 13(2) of the Rules 2002.
Therefore, show cause notice dated
19.4.2010 and simultaneous seizure of
boulders is contrary to Rule 13(2) of the
Rules 2002.
756 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

## Text

2 All M/s Uma Stone Crushing Company and another V State of U.P. and others
755
the Northern India Ferries Act, 1978
approval
of
the
Commissioner
is
necessary. Since, admittedly, no approval
was granted by the Commissioner, no
auction has been settled in favour of the
petitioner and hence no right has accrued
in its favour. Hence, there is no question
of giving opportunity of hearing, because
opportunity of hearing has to be given
only in those cases where some right has
accrued and thereafter it is sought to be
cancelled. Since in this case no right has
accrued in favour of the petitioner, hence
there is no need to give opportunity of
hearing. There is no force in the writ
petition. It is, accordingly, dismissed."

14. In view of above, we are of the
view that the approval of bid is required
to be taken from the Commissioner. It is
relevant to note that the condition of
advertisement
Clause
4
clearly
contemplates
approval
of
the
Commissioner. Hence, we are satisfied
that approval of the Commissioner is
mandatory. The above bid having not yet
been approved by the Commissioner, we
are of the view that the Commissioner
may take an appropriate decision with
regard to the bid alleged to be held on
31.12.2009 after considering the objection
of the petitioner within four weeks from
the date a certified copy of this order is
produced before him. Learned counsel for
the Zila Panchayat submits that all the
papers have already been forwarded to the
Commissioner.

15. The writ petition is disposed of
with the aforesaid observations.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.07.2010

BEFORE
THE HON'BLE V. M. SAHAI, J.
THE HON'BLE MRS. JAYASHREE TIWARI, J.

Civil Misc. Writ Petition No. 26810 of 2010

M/s Uma Stone Crushing Company and
another

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.S. Chauhan
Sri Madan Lal Srivastava

Counsel for the Respondents:
S.C.

U.P. Minerals (Prevention of illegal
mining Transportation
and
Storage)
Rules 2002-13(2)-Notice to seizer of
Bolder and other article-before expiring
of One month-as provided in statuary
enactment illegal direction issued-if
reply to Show Cause Notice filed-same
shall be considered and decided-in
between seized articles be released.

Held: Para 9

If the petitioner is required to obtain
any licence for storage of boulders
within the area for which he had been
leased then such an order should have
been passed by the respondents only
after one month from the date of
service of show cause notice, giving
detailed reasons but without expiry of
one month of show cause notice the
boulders could not be seized by the
respondents in view of clear provision
of Rule 13(2) of the Rules 2002.
Therefore, show cause notice dated
19.4.2010 and simultaneous seizure of
boulders is contrary to Rule 13(2) of the
Rules 2002.
756 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
(Delivered by Hon'ble V.M. Sahai, J.)

1. The short question that arises for
consideration in this petition is whether
under Rule 13 of the U.P. Minerals
(Prevention
of
illegal
Mining,
Transportation and Storage) Rules, 2002
(in brief the Rules 2002) the stored
minerals (boulders) could be seized by the
respondents simultaneously while issuing
a show cause notice by the Mines Officer.

2. The petitioner was granted a
mining lease on 23.3.2006 on part of plot
no. 7347 Ka area 1.25 acre by the District
Magistrate, Sonebhadra under Form MM3
of the Uttar Pradesh Minor Minerals
(Concession ) Rules, 1963. The lease was
for a period of ten years from 23.3.2006
to 23.3.2016. Form MM11 was issued for
mining as well as for transportation of
boulder and gitti. According to the
petitioner he did not violate any terms of
the mining lease and his stone crusher
was installed on the boundary at a
distance of 70 meters from the mining
quarry within the mining area leased out
to the petitioner. The boulders were kept
on the mining area of the petitioner which
were being crushed by the petitioner and
gitti was manufactured.

3. It appears that on the basis of
some complaint dated 9.4.2010 by one
Anoop Tripathi the stone crusher was
inspected by the respondents and it was
found that boulders were lying near the
crushing machine which was being
crushed by the petitioner and Gitti was
manufactured
which
was
to
be
transported. The Mining Officer/District
Magistrate, Sonebhadra issued a show
cause notice to the petitioner on 19.4.2010
stating therein that the petitioner has
illegally stored 11500 sq.m. of gitti and
4500 sq. m. boulders. The petitioner had
no licence to store boulders and the
petitioner
was
asked
to
furnish
information that the boulders were
obtained by the petitioner from which
mining
lease
holders;
under
which
agreement
they
have
supplied
the
boulders to the petitioner; if gitti have
been transported by the petitioner then
copies of Form MM 11 be furnished; the
details of name and address of the mining
lease holders who have supplied boulders
to the petitioner be also furnished. In the
show cause notice it was also stated that
the petitioner has been carrying out illegal
mining operation and therefore stock of
boulders found near the crusher of the
petitioner as mentioned above was seized
by the mining officer while issuing show
cause notice on 19.4.2010.

4. The question is whether the
Mining Officer could seize the boulders
simultaneously while issuing notice under
Section 13(2) of the U.P. Minerals
(Prevention
of
illegal
Mining,
Transportation and Storage) Rules, 2002.
It is necessary to extract the Rule 13 of
the aforesaid Rules.

Rule 13. Inspection and checking of
the storage of minerals - (1) For the
purpose of checking of the stored
minerals or for any purposes connected
with the Act or rules made thereunder, the
District Officer or the Officer authorised
by the State Government may,

(a) enter, inspect any such storage
premises,

(b)
weigh,
measure
or
take
measurement of stock of mineral(s) lying
in the store,

c) examine any document, book,
register or record in the possession,
2 All M/s Uma Stone Crushing Company and another V State of U.P. and others
757

(d) take extracts from or make copies
of such document, book, register or
records,

(e) summon on order the production
of any such document, book, register or
records as is referred to in clause (c),

(f) summon or examine any person
having the control of or connected with
any stock of the mineral,

(g) call for such information or
return as may be considered necessary.

2. If any illegality is found in the
stock of the minerals, the District Officer
or the officer authorised by the State
Government in this behalf may issue a
notice to such licensee to explain his case
within thirty days from the receipt of the
notice and if no explanation is submitted
within stipulated time or the explanation
so submitted is not found satisfactory then
the licence may be determined by the
District Officer and if the stock so
checked is found without any lawful
authority, the same may be seized and
confiscated.

5. Rule13(1) gives power to the
Mining Officer to check and inspect the
stored minerals, take measurement and
inspect books etc. Rule 13(2) provides
that if any illegality is found by the
Mining Officer or the District Officer or
the officer authorised by the State
Government in the stock of the minerals
then show cause notice has to be issued to
the petitioner calling his explanation
within thirty days and if the explanation
submitted by the petitioner is not found
satisfactory then the authorities have the
power to come to the conclusion that the
stock of mineral checked by them were
stored without any lawful authority, and
the authority could direct for its seizure
and confiscation.

6. Learned Standing Counsel has
vehemently urged that since the petitioner
was not holding any licence for storage of
boulders, therefore after the mining
operation, the storage of boulders had
become illegal.

7. The petitioner had stated that the
stone crusher had been established on the
boundaries of the lease area and no
licence is required to store boulders as
after mining and excavation the boulders
are stored on the leased area. The distance
between stone crusher and the quarry is
only 70 meters whereas in the counter
affidavit the respondents have stated that
the distance is about 150 meters.
However, if after mining operation the
boulder coming out after excavation are
kept on the area which had been leased to
the petitioner then there is no occasion for
the petitioner for obtaining licence for the
storage of the boulders as provided by
Rule 11(a) of the Rules 2002.

8. From the reply given by the
Mines Officer under the Right to
Information Act filed as Annexure -3 to
the rejoinder affidavit it is clear that no
mining lease holder had obtained any
licence for storage of minerals on the area
which had been leased out to him. The
petitioner who is a mining lease holder is
not required to obtain any licence for
storage of boulders excavated by him
from his mines which were stored on the
mining area for which the petitioner was
holding a valid lease.

9. If the petitioner is required to
obtain any licence for storage of boulders
within the area for which he had been
leased then such an order should have
been passed by the respondents only after
one month from the date of service of
758 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
show cause notice, giving detailed reasons
but without expiry of one month of show
cause notice the boulders could not be
seized by the respondents in view of clear
provision of Rule 13(2) of the Rules 2002.
Therefore, show cause notice dated
19.4.2010 and simultaneous seizure of
boulders is contrary to Rule 13(2) of the
Rules 2002.

10. Therefore, we direct that the
seizure of boulders by the respondents
simultaneously alongwith show cause
notice dated 19.4.2010 is wholly illegal
and is liable to be quashed. However, if
the petitioner submits his reply to the
show cause notice within the period of
one month from today it shall be
considered by the respondents and the
respondents shall pass a detailed reasoned
order after considering each and every
point raised by the petitioner in his reply
to the show cause notice.

11. In the result, the writ petition
succeeds and is allowed. The show cause
notice dated 19.4.2010 so far as it directs
seizure of the petitioner's boulders is
quashed. The boulders which had been
seized by the respondents shall be
released to the petitioner forthwith.
However, the petitioner shall submit his
reply to the show cause notice within the
period of one month from today which
shall be considered by the respondents
and the respondents shall pass a detailed
reasoned order after considering each and
every point raised by the petitioner in his
reply to the show cause notice.

12. Parties shall bear their own
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2010

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE KASHI NATH PANDEY, J.

Civil Misc. Writ Petition No. 40033 of 1993

Sashi Bhushan Pandey
 ...Petitioner
Versus
U.P.P.S.C., Allahabad and another

 ...Respondents

Counsel for the Petitioner:
Sri B.D. Pandey
Sri Abhishek Rai
Sri Chandan Sharma
Sri Vinay Malviya
Sri V.K. Goel

Counsel for the Respondents:
Sri M.A. Qadeer
S.C.

Constitution
of
India,
Art-226-Writ
Petition-Challenging
the
selection
of
reserve category candidate in General
Category-effected/selected person not
impleded-selection made much prior to
18 years-can not be Questioned-most of
them
have
been
promoted-held-in
absence of necessary party-Petition not
maintainable.

Held: Para 9

In this case we further find that the
three candidates who belonged to O.B.C.
category and were selected in general
category, giving the cause of action for
filing the writ petition, have not been
impleaded. They were appointed in the
year 1992 and most of them would have
served for more than 18 years as District
Audit Officers and may have been
promoted to the higher posts in the
department. In the absence of necessary
parties, no relief can be granted to the
petitioner.