# Abhishek Kukreti & Ors v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 518
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-09
- **Case number:** Criminal Misc. Writ Petition No. 11966 of 2023
- **Bench:** Vivek Kumar Birla, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhishek-kukreti-ors-v-state-of-u-p-ors-50688
- **Pages:** 9

## Headnote

Law
-
Constitution
of
Indian,1950 - Article 48(a) & 226, -
Criminal Procedure Code, 1973 - Sections
156(3), 173 & 190(1)(d) - Mines And
Minerals (Development And Regulation)
Act, 1957 - Sections 4, 21, 22, 23(A)(1) &
23(A)(2)
-
Mines
And
Minerals
Development And Regulation Rules,1957
- Rule 18 & 53 - Indian Penal Code, 1860 -
Sections 378, 379, 411 & 414 - Petition -
challenging the impugned proceedings of seizing
of the vehicles - as well as for quashing of the
FIR - Punishment for theft - Dishonestly
receiving stolen property - Court finds that,
everyday newspapers are flooded with the news
of illegal mining from every corners of the
country, raiding parties / officials / even officers
are attached and due to illegal mining - there
can be no dispute about the fact that the St.
Exchequers must be losing huge revenue apart
from damage to the public property as well -
held, (i) petitioner are the owners of the
vehicles which were found to be involved in the
present case, therefore a cognizable offence is
made out, and (ii) it is high time for
Government concern to take a call on larger
issue and do needful as Hon'ble Apex Court has
left in to wisdom of legislature to do needful and
concerned
St.
to
perform
its
public
duty/obligation being an elected Government -
accordingly, Writ petition, dismissed. (Para - 16,
17, 18)

Writ Petition Dismissed. (E-11)

List of Cases cited:

## Text

518 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Under the circumstances, therefore,
the submission, that the petitioners do not
fall within the definition of the word
"gang" as occurring in Section 2(b) of the
Act, cannot be accepted.

10. It is also not in dispute that the
provisions of the Gangsters Act can be
slapped against a person on the basis of a
single case.

11. The charge-sheet in the base case
against the petitioners had been filed on
29.04.2023 and the impugned FIR has been
lodged against them on 30.06.2023.

12. Under the circumstances, we do
not find any illegality in the manner in
which the first information report had been
lodged. Moreover, the allegations in the
first information report, in our considered
opinion, contain the ingredients of a
cognizable offence.

13. In view of the foregoing, we do
not find any ground to interfere in the
impugned first information report. The writ
petition is without merit and is dismissed.
----------
(2023) 8 ILRA 518
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Criminal Misc. Writ Petition No. 11966 of 2023

Abhishek Kukreti & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Mahipal Singh, Sri Kripa Shankar Singh
(Sr. Advocate)

Counsel for the Respondents:
G.A.

Criminal
Law
-
Constitution
of
Indian,1950 - Article 48(a) & 226, -
Criminal Procedure Code, 1973 - Sections
156(3), 173 & 190(1)(d) - Mines And
Minerals (Development And Regulation)
Act, 1957 - Sections 4, 21, 22, 23(A)(1) &
23(A)(2)
-
Mines
And
Minerals
Development And Regulation Rules,1957
- Rule 18 & 53 - Indian Penal Code, 1860 -
Sections 378, 379, 411 & 414 - Petition -
challenging the impugned proceedings of seizing
of the vehicles - as well as for quashing of the
FIR - Punishment for theft - Dishonestly
receiving stolen property - Court finds that,
everyday newspapers are flooded with the news
of illegal mining from every corners of the
country, raiding parties / officials / even officers
are attached and due to illegal mining - there
can be no dispute about the fact that the St.
Exchequers must be losing huge revenue apart
from damage to the public property as well -
held, (i) petitioner are the owners of the
vehicles which were found to be involved in the
present case, therefore a cognizable offence is
made out, and (ii) it is high time for
Government concern to take a call on larger
issue and do needful as Hon'ble Apex Court has
left in to wisdom of legislature to do needful and
concerned
St.
to
perform
its
public
duty/obligation being an elected Government -
accordingly, Writ petition, dismissed. (Para - 16,
17, 18)

Writ Petition Dismissed. (E-11)

List of Cases cited:

1. Jayant Vs St. of M.P., (2021) 2 SCC 670,

2. St. (NCT of Delhi) Vs. Sanjay, (2014) 9 SCC
772.

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Rajendra Kumar-IV, J.)
8 All. Abhishek Kukreti & Ors. Vs. State of U.P. & Ors.
519

1. Heard Sri Kripa Shankar Singh,
learned Senior Counsel assisted by Sri
Mahipal Singh, learned counsel for the
petitioners and Sri Ratan Singh alongwith
Sri Vibhav Ojha, learned AGA for the
State.

2. Present petition has been filed
seeking quashing of the first information
report dated 28.04.2023, arising out of case
crime no.85 of 2023, under sections 379,
411 IPC and Section 4/21 Mines and
Minerals (Development and Regulation)
Act, 1957, Police Station Nagina Dehat,
District Bijnor. Further, the petitioners
are seeking a direction in the nature of
mandamus commanding the respondents
to take appropriate action/departmental
inquiry
against
the
responsible
respondents, who were involved in the
proceeding of seizing of the vehicles
concern as well as false arresting of said
drivers in pursuance of the impugned first
information report.

3. Sole submission of the learned
counsel for the petitioners is that in view
of Section 22 of the Mines and Minerals
(Development and Regulation) Act, 1957
(hereinafter referred to 'MMDR Act') the
FIR could not have been registered as it
provides that only a complaint could
have been lodged by the authorized
person.

4. In support, it is submitted that a
Co-ordinate Bench of this Court on this
ground itself in the same case crime no.85
of 2023 has granted interim order vide
order dated 29.05.2023 passed in Criminal
Misc. Writ Petition No.7806 of 2023
(Kalyan Singh and 8 Others vs. State of
U.P. and 18 Others). The said interim order
reads as under:-

"1. Heard learned counsel for the
petitioners and learned A.G.A. for the
State.

2. This writ petition has been
preferred to quash the First Information
Report dated 28.4.2023 being Case Crime
No.85 of 2023, under Sections 379, 411 and
4/21 of Mines and Minerals (Development
and Regulations) Act, 1957, Police Station
Nagina, District Bijnor with a further
prayer not to arrest the petitioners.

3. Learned counsel for the
petitioners relying upon section 22 of the
Mines and Minerals (Development and
Regulations) Act, 1957 has stated that the
First Information Report itself could not
have been registered.

4. Matter requires consideration.

5. Learned Standing Counsel
appears for respondent nos.1, 2 and 3.
Issue
notice
to
respondent
no.4
by
registered post. Steps may be taken within
ten days. At this stage, we are not issuing
notices to respondent nos.5 to 19.

6. Respondent nos.1 to 4 may file
their counter affidavits within a period of
three weeks. Rejoinder affidavit, if any, may
be filed within two weeks thereafter.

7. List thereafter.

8.
Until
further
orders,
no
coercive action shall be taken against the
petitioners."
(Emphasis Supplied)

5. It is further submitted that no
cognizance can be taken by the Magistrate
as per Clause 21(4) of the paragraph 21 of
the judgment rendered in Jayant Vs. State
of Madhya Pradesh, (2021) 2 SCC 670.

6. Per contra, learned AGA opposed
the prayer for quashing of the first
information report and submits that the
present first information report is clearly
520 INDIAN LAW REPORTS ALLAHABAD SERIES
maintainable in view of the judgment of
Jayant (supra).

7. We have considered the rival
submissions and perused the records.
Interestingly, both sides have placed
reliance on law laid down in Jayant
(supra).

8. Shorn of details facts as contained
in the FIR are that on 28.04.2023 at 11:35
pm, the respondent No.4 lodged first
information
report
against
unknown
persons. It is alleged in the first information
report that the complainant came to Police
Station- Nagina Dehat for prevention of
illegal mining. He accompanied by the
Station House Officer of concerned Police
Station alongwith other police personnels
reached at Kho river on 28.04.2023 at 08:15
pm. The complainant found that continuous
illegal mining was being done. Some JCBs,
dumpers, and tractor were found on the spot,
drivers whereof ran away from the spot after
seeing the Police team. 11 dumpers were
found on the spot of which 8 dumpers were
full of minerals and 3 dumpers were empty
and 6 tractors trolley were standing for taking
minerals. The details of all the dumpers and
tractor trolley are also mentioned in the
impugned first information report. The FIR
was filed against unknown persons as alleged
accused ran away from the spot.

9. Admittedly, the petitioners are the
owners of the concerned vehicles/dumpers
found on the spot and seized by the police.
It is alleged that the petitioners on being
harassed by the police, moved applications
before the Court concern and wanted
reports were submitted by the police. It has
been stated in the petition that all the
petitioners
are
legally
involved
in
transportation of minerals, having valid
transit pass (Ravanna).

10. Before proceeding further it
would be appropriate to take note of
Section 22 and 23-A of the MMDR Act,
1952, which is quoted as under:-

"22. Cognizance of offences.-
No Court shall take cognizance of any
offence punishable under this Act or any
rules
made
thereunder
except
upon
complaint in writing made by a person
authorised in this behalf by the Central
Government or the State Government."

23-A.
Compounding
of
offences.-

Any offence punishable under this
Act or any rule made thereunder may,
either before or after the institution of the
prosecution, be compounded by the person
authorised under section 22 to make a
complaint to the court with respect to that
offence, on payment to that person, for
credit to the Government, of such sum as
that person may specify: Provided that in
the case of an offence punishable with fine
only, no such sum shall exceed the
maximum amount of fine which may be
imposed for that offence. (2) Where an
offence is compounded under sub-section
(1), no proceeding or further proceeding,
as the case may be, shall be taken against
the offender in respect of the offence so
compounded, and the offender, if in
custody, shall be released forthwith."

11. We find that the interim order that
is being relied on by the learned counsel for
the petitioners nowhere reflects that the
judgment of Jayant (supra) was placed
before the Co-ordinate Bench, therefore,
the sole argument, placing reliance on the
interim order dated 29.05.2023 quoted
above that FIR could not be registered in
the light of Section 22 of the MMDR Act,
has no force. Admittedly, the aforesaid
order of the Co-ordinate Bench is only an
8 All. Abhishek Kukreti & Ors. Vs. State of U.P. & Ors.
521
interim
order
and
is
not
a
final
decision/order.

12. We, therefore, proceed to consider
the argument of learned Senior Counsel
independently of the interim order passed
by the Co-ordinate Bench..

13. In State (NCT of Delhi) v.
Sanjay, (2014) 9 SCC 772 the Hon'ble
Apex Court in paragraphs 60, 69, 72 and 73
has held as under :-

"60. There cannot be any two
opinions that natural resources are the
assets of the nation and its citizens. It is the
obligation of all concerned, including the
Central and the State Governments, to
conserve and not waste such valuable
resources. Article 48-A of the Constitution
requires that the State shall endeavour to
protect and improve the environment and
safeguard the forests and wild life of the
country. Similarly, Article 51-A enjoins a
duty upon every citizen to protect and
improve the natural environment including
forests, lakes, rivers and wild life, and to
have
compassion
for
all
the
living
creatures. In view of the Constitutional
provisions, the Doctrine of Public Trust has
become the law of the land. The said
doctrine rests on the principle that certain
resources like air, sea, waters and forests
are of such great importance to the people
as a whole that it would be highly
unjustifiable to make them a subject of
private ownership.

69. Considering the principles of
interpretation and the wordings used in
Section 22, in our considered opinion, the
provision is not a complete and absolute
bar for taking action by the police for
illegal and dishonestly committing theft of
minerals including sand from the river bed.
The Court shall take judicial notice of the
fact that over the years rivers in India have
been affected by the alarming rate of
unrestricted
sand
mining
which
is
damaging the eco-system of the rivers and
safety of bridges. It also weakens river
beds, fish breeding and destroys the natural
habitat of many organisms. If these illegal
activities are not stopped by the State and
the police authorities of the State, it will
cause serious repercussions as mentioned
hereinabove. It will not only change the
river hydrology but also will deplete the
ground water levels.

72. From a close reading of the
provisions of MMDR Act and the offence
defined under Section 378, IPC, it is
manifest that the ingredients constituting
the offence are different. The contravention
of terms and conditions of mining lease or
doing mining activity in violation of Section
4 of the Act is an offence punishable under
Section 21 of the MMDR Act, whereas
dishonestly removing sand, gravels and
other minerals from the river, which is the
property of the State, out of State's
possession without the consent, constitute
an offence of theft. Hence, merely because
initiation of proceeding for commission of
an offence under the MMDR Act on the
basis of complaint cannot and shall not
debar the police from taking action against
persons for committing theft of sand and
minerals in the manner mentioned above by
exercising power under the Code of
Criminal Procedure and submit a report
before the Magistrate for taking cognizance
against such person. In other words, in a
case where there is a theft of sand and
gravels from the Government land, the
police can register a case, investigate the
same and submit a final report under
Section 173, Cr.P.C. before a Magistrate
having jurisdiction for the purpose of
taking cognizance as provided in Section
522 INDIAN LAW REPORTS ALLAHABAD SERIES
190 (1)(d) of the Code of Criminal
Procedure.

73. After giving our thoughtful
consideration in the matter, in the light of
relevant provisions of the Act vis-à-vis the
Code of Criminal Procedure and the Indian
Penal Code, we are of the definite opinion
that the ingredients constituting the offence
under the MMDR Act and the ingredients of
dishonestly removing sand and gravel from
the river beds without consent, which is the
property of the State, is a distinct offence
under the IPC. Hence, for the commission
of offence under Section 378 Cr.P.C., on
receipt of the police report, the Magistrate
having jurisdiction can take cognizance of
the said offence without awaiting the
receipt of complaint that may be filed by
the authorized officer for taking cognizance
in respect of violation of various provisions
of the MMRD Act. Consequently the
contrary view taken by the different High
Courts cannot be sustained in law and,
therefore, overruled. Consequently, these
criminal appeals are disposed of with a
direction to the concerned Magistrates to
proceed accordingly."
(Emphasis Supplied)

14. The offence of illegal mining was
clearly noticed by the Apex Court in the
case of Jayant (supra) as well and it is
only thereafter conclusion was drawn that
the first information report involving
offences
under
Indian
Penal
Code
alongwith offences under MMDR Act is
maintainable. Paragraphs 17, 18, 19, 20 and
21 of the said judgment reads as under:

17. Now so far as the submission
on behalf of the private appellantsviolators
that in view of the fact that violators were
permitted to compound the violation in
exercise of powers under Rule 53 of the
1996 Rules or Rule 18 of the 2006 Rules
and the violators accepted the decision and
deposited the amount of penalty determined
by
the
appropriate
authority
for
compounding the offences/violations, there
cannot be any further criminal proceedings
for the offences under Sections 379 and 414
IPC and Sections 4/21 of the MMDR Act
and the reliance placed on Section 23A of
the MMDR Act is concerned, it is true that
in the present case the appropriate
authority determined the penalty under
Rule 53 of the 1996 Rules/Rule 18 of the
2006 Rules, which the private appellantsviolators paid and therefore the bar
contained in subsection 2 of Section 23A of
the MMDR Act will be attracted.

17.1 Section 23A as it stands
today has been brought on the Statute in
the year 1972 on the recommendations of
the Mineral Advisory Board which provides
that any offence punishable under the
MMDR Act or any rule made thereunder
may, either before or after the institution of
the prosecution, be compounded by the
person authorised under section 22 to make
a complaint to the court with respect to that
offence, on payment to that person, for
credit to the Government, of such sum as
that person may specify. Subsection 2 of
Section 23A further provides that where an
offence is compounded under subsection
(1), no proceeding or further proceeding,
as the case may be, shall be taken against
the offender in respect of the offence so
compounded, and the offender, if in
custody, shall be released forthwith . Thus,
the bar under subsection 2 of Section 23A
shall be applicable with respect to offences
under the MMDR Act or any rule made
thereunder.

17.2 However, the bar contained
in subsection 2 of Section 23A shall not be
applicable for the offences under the IPC,
such as, Section 379 and 414 IPC. In the
present case, as observed and held
8 All. Abhishek Kukreti & Ors. Vs. State of U.P. & Ors.
523
hereinabove, the offences under the MMDR
Act or any rule made thereunder and the
offences under the IPC are different and
distinct offences.

17.3. Therefore, as in the present
case, the mining inspectors prepared the
cases under Rule 53 of the 1996 Rules and
submitted them before the mining officers
with the proposals of compounding the
same for the amount calculated according
to the concerned rules and the Collector
approved the said proposal and thereafter
the private appellants violators accepted
the decision and deposited the amount of
penalty determined by the Collector for
compounding the cases in view of subsection 2 of Section 23A of the MMDR Act
and the 1996 rules and even the 2006 rules
are framed in exercise of the powers under
Section 15 of the MMDR Act, criminal
complaints/proceedings for the offences
under Sections 4/21 of the MMDR Act are
not permissible and are not required to be
proceeded further in view of the bar
contained in subsection 2 of Section 23A of
the MMDR Act. At the same time, as
observed
hereinabove,
the
criminal
complaints/proceedings for the offences
under the IPC - Sections 379/414 IPC
which are held to be distinct and different
can be proceeded further, subject to the
observations made hereinabove.

18.
However,
our
above
conclusions are considering the provisions
of Section 23A of the MMDR Act, as it
stands today. It might be true that by
permitting the violators to compound the
offences under the MMDR Act or the rules
made thereunder, the State may get the
revenue and the same shall be on the
principle of person who causes the damage
shall have to compensate the damage and
shall have to pay the penalty like the
principle of polluters to pay in case of
damage to the environment. However, in
view of the large scale damages being
caused to the nature and as observed and
held by this Court in the case of Sanjay
(supra), the policy and object of MMDR
Act and Rules are the result of an
increasing awareness of the compelling
need to restore the serious ecological
imbalance and to stop the damages being
caused to the nature and considering the
observations made by this Court in the
aforesaid
decision,
reproduced
hereinabove, and when the violations like
this are increasing and the serious damage
is caused to the nature and the earth and it
also affects the ground water levels etc. and
it causes severe damage as observed by this
Court in the case of Sanjay (supra),
reproduced hereinabove, we are of the
opinion that the violators cannot be
permitted to go scot free on payment of
penalty only. There must be some stringent
provisions which may have deterrent effect
so that the violators may think twice before
committing such offences and before
causing damage to the earth and the
nature.

19. It is the duty cast upon the
State to restore the ecological imbalance
and to stop damages being caused to the
nature. As observed by this Court in the
case of Sanjay (supra), excessive in stream
sandandgravel mining from river beds and
like resources causes the degradation of
rivers. It is further observed that apart from
threatening
bridges,
sand
mining
transforms the riverbeds into large and
deep pits, as a result, the groundwater table
drops leaving the drinking water wells on
the embankments of these rivers dry. Even
otherwise, sand/mines is a public property
and the State is the custodian of the said
public property and therefore the State
should be more sensitive to protect the
environment and ecological balance and to
protect the public property the State should
524 INDIAN LAW REPORTS ALLAHABAD SERIES
always be in favour of taking very stern
action against the violators who are
creating serious ecological imbalance and
causing damages to the nature in any form.
As the provisions of Section 23A are not
under challenge and Section 23A of the
MMDR Act so long as it stands, we leave
the matter there and leave it to the wisdom
of the legislatures and the concerned
States.

20. Now so far as the appeal
preferred by the State on the premise that
the order passed by the learned Magistrate,
confirmed by the High Court, affects the
powers of the authorised person to
compound the offence, in exercise of
powers under Rule 53 of the 1996 Rules
and Rule 18 of the 2006 Rules is
concerned,
the
same
is
absolutely
misconceived. By the order passed by the
learned Magistrate, confirmed by the High
Court, by no stretch of imagination, it can
be said that directing to file the first
information report/crime case for the
offences under the IPC and even for the
offences under the MMDR Act and the
rules made thereunder, it affects any of the
powers of the authorised person to
compound the offence. In fact, in view of
the decision of this Court in the case of
Sanjay (supra), in which this Court has
specifically observed and held that so far
as the offence under the IPC is concerned,
there shall not be any bar under Section 22
of the MMDR Act and when before the
High Court the State supported the order
passed by the learned Magistrate and
rightly so and when the impugned judgment
and order passed by the High Court is in
favour of the State, as such, the State ought
not to have filed the special leave
petition/appeal.

"21. After giving our thoughtful
consideration in the matter, in the light of
the relevant provisions of the MMDR Act
and the Rules made thereunder visàvis the
Code of Criminal Procedure and the Penal
Code, and the law laid down by this Court
in the cases referred to hereinabove and for
the
reasons
stated
hereinabove,
our
conclusions are as under:

21.1. that the learned Magistrate
can in exercise of powers under Section
156(3) of the Code order/direct the
concerned In charge/SHO of the police
station to lodge/register crime case/FIR
even for the offences under the MMDR Act
and the Rules made thereunder and at this
stage the bar under Section 22 of the
MMDR Act shall not be attracted;

21.2. the bar under Section 22 of
the MMDR Act shall be attracted only
when
the
learned
Magistrate
takes
cognizance of the offences under the
MMDR Act and Rules made thereunder and
orders issuance of process/summons for the
offences under the MMDR Act and Rules
made thereunder;

21.3 for commission of the
offence under the IPC, on receipt of the
police report, the Magistrate having
jurisdiction can take cognizance of the said
offence without awaiting the receipt of
complaint that may be filed by the
authorised officer for taking cognizance in
respect of violation of various provisions of
the
MMDR
Act
and
Rules
made
thereunder; and

21.4 that in respect of violation of
various provisions of the MMDR Act and
the Rules made thereunder, when a
Magistrate passes an order under Section
156(3) of the Code and directs the
concerned Incharge/SHO of the police
station to register/lodge the crime case/FIR
in respect of the violation of various
provisions of the Act and Rules made
thereunder
and
thereafter
after
investigation the concerned Incharge of the
police station/investigating officer submits
8 All. Abhishek Kukreti & Ors. Vs. State of U.P. & Ors.
525
a report, the same can be sent to the
concerned Magistrate as well as to the
concerned authorised officer as mentioned
in Section 22 of the MMDR Act and
thereafter the concerned authorised officer
may file the complaint before the learned
Magistrate along with the report submitted
by the concerned investigating officer and
thereafter it will be open for the learned
Magistrate
to
take
cognizance
after
following
due
procedure,
issue
process/summons
in
respect
of
the
violations of the various provisions of the
MMDR Act and Rules made thereunder and
at that stage it can be said that cognizance
has been taken by the learned Magistrate.

21.5. in a case where the violator
is permitted to compound the offences on
payment of penalty as per subsection1 of
Section 23A, considering subsection 2 of
Section 23A of the MMDR Act, there shall
not
be
any
proceedings
or
further
proceedings against the offender in respect
of the offences punishable under the
MMDR Act or any rule made thereunder so
compounded. However, the bar under subsection 2 of Section 23A shall not affect any
proceedings for the offences under the IPC,
such as, Sections 379 and 414 IPC and the
same shall be proceeded with further."
(Emphasis Supplied)

15. In view of the decisions made
hereinabove it can be safely concluded that:

(i) bar under section 22 of the
MMDR Act is not attracted in case FIR is
lodged/registered for offences under IPC
and even for offences under the MMDR
Act and Rules made thereunder, the
competent magistrate in exercise of power
under
Section
156(3)
Cr.P.C.
can
order/direct registration of FIR;

(ii) bar under Section 22 of the
MMDR Act shall be attracted only when
the learned magistrate takes cognizance of
the offences under the MMDR Act and the
Rules framed thereunder;

(iii) for commission of an offence
under the IPC, on police report, the
competent magistrate can take cognizance
of the said offences WITHOUT awaiting
the receipt of complaint that may be filed
by the authorised officer regarding offences
under the MMDR Act and Rules framed
thereunder;

(iv) in a case where violator is
permitted to compound the offences on
payment of penalty as per Section 23A(1),
in view of Section 23A(2) of the MMDR
Act, there shall not be any proceeding or
further proceedings against the offender in
respect of offence under the MMDR Act or
Rules framed thereunder;

(v) however, importantly bar
under sub-section (2) of Section 23-A of
the MMDR Act shall not affect and
proceedings for the offences under the IPC
such as sections 379, 411, 414 and the same
shall be proceeded further;

(vi) the above decisions leave no
reason to doubt that as per the law settled
by the Hon'ble Apex Court, offences under
the
MMDR Act
and
Rules
framed
thereunder and offences under the IPC
stands on different footing and are
procedurely distinguishable and can be
differently initiated and proceeded with;

(vii) finally, it can be safely
concluded that FIR involving offences
under IPC alongwith offences under the
MMDR Act
and
the
Rules
framed
thereunder as in the present case, is clearly
maintainable and can be validly registered
and bar under section 22 of the MMDR Act
is not attracted.

16. In such view of the matter, we are
not inclined to place reliance upon the
interim order granted by this Court without
526 INDIAN LAW REPORTS ALLAHABAD SERIES
noticing the law laid down by Hon'ble
Apex Court in Sanjay (supra) and in
Jayant (supra). The petitioners are the
owners of the vehicles which were found to
be involved in the present case, therefore, a
cognizable offence is made out.

17. One can take judicial notice of the
fact that everyday newspapers are flooded
with news of illegal mining from every
corners
of
the
country,
raiding
parties/officials/even officers are attacked
and due to illegal mining, there can be no
dispute about the fact that State Exchequer
must be losing huge revenue apart from
damage to the public property as well. The
ecological part of such damage has already
been discussed and taken note of Hon'ble
Apex Court in the above noted judgments
in the case of Sanjay (Supra) and Jayant
(supra). Observations made by Hon'ble
Apex Court judgment in Jayant (supra)
also gives an impression that the existing
provisions of the MMDR Act are falling
short of expectations in view of the volume
of illegal mining. Therefore, before we
part,
we
express
our
concern
by
highlighting concern of the Hon'ble Apex
Court expressed specifically in para 18 and
19 of Jayant (supra) and observe that it is
high time for the Government concern to
take a call on the larger issue and do the
needful as Hon'ble Apex Court has left in
to the wisdom of the legislature to do the
needful and the concerned State to perform
its public duty/obligation being an elected
Government.

18. To attract the attention of the State
Government and for doing the needful in its
own wisdom, in larger public interest,
learned AGA is directed to forward a copy
of this order to the respondent no.1-State of
U.P.
through
its
Secretary,
Home
Department, U.P. Government, Lucknow as
well as to the Chief Secretary Government
of U.P. within a week.

19. For similar reasons, office is also
directed to serve a copy of this order on the
Additional Solicitor General of India
representing Union of India in this Court
for being forwarded to the Secretary of the
concerned Department/Ministry, Union of
India within a week.

20. From the discussions made
hereinabove, we find that the writ petition
is devoid of merit and is accordingly
dismissed, however, with the observations
as made above.
----------
(2023) 8 ILRA 526
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.07.2023

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Matters Under Article 227 No. 4923 of 2023

Chaudhary Chandra Veer Singh & Anr.
 ...Petitioners
Versus
President Ark City Residents Welfare
Association, Meerut & Anr.
 ...Respondents

Counsel for the Petitioners:
Sri Kunal Shah, Sri Suvansit Kumar Jaiswal,
Sri Vipul Raj Gautam, Sri Manish Goyal (Sr.
Advocate)

Counsel for the Respondents:
Sri Ajay Kumar Singh, Sri Ashish Kumar
Singh

Civil Law - Uttar Pradesh Apartment
(Promotion, Ownership and Maintenance)
Act, 2010 - Indian Easements Act, 1882 -
Easementary Rights - Temporary Injunction --