# M/S Maa Vaishno Traders, Kaushambi v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 142
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-05
- **Case number:** Criminal Misc. Writ Petition No. 10716 of 2023
- **Bench:** Anjani Kumar Mishra, Vivek Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-maa-vaishno-traders-kaushambi-v-state-of-u-p-ors-50760
- **Pages:** 6

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 379 - The U.P. Minor
Mineral
(Concession)
Rules,
2021
-
Sections 3(1), 58, 72(1) & 76 - Mines and
Minerals (Regulation of Development) Act
1957 - Sections 4, 21 & 22 - The
Prevention of Damage to Public Property
Act, 1984 - Sections 3 & 4, - There is no
bar to the lodging of an FIR even where
cognizance
is
barred
except
on
a
complaint
in
writing
by
the
duly
authorized officer for contravention of the
provisions of the U.P. Minor Minerals
(Concession) Rules, 2021.(Para -7)

Surprise inspection carried out by S.D.M. -
allegation in FIR - mining carried out in an
area beyond lease granted to petitioner-
contains ingredients of cognizable offence -
contention - no offence disclosed from
allegations in FIR - offences alleged against
petitioner are under four enactments. (Para
- 3,9,10,11)

HELD:-Petitioner cannot derive any benefit
from Section 22 of the Act and an FIR with
regard to an offence under Section 4(1) or 4(1A) of the Act can be lodged, as they are
cognizable offences in view of Section 21(6).
FIR cannot be quashed because offences
alleged against the petitioner are such regarding
which an FIR could have been lodged as also
because
the
allegation
therein
constitute
offences. (Para -20,23 )

Writ Petition dismissed. (E-7)

List of Cases cited:

Jayant etc. Vs St. of M.P.

## Text

142 INDIAN LAW REPORTS ALLAHABAD SERIES
for eviction of an unauthorized occupant
can be passed under the Prevention of Damage
to Public Property Act. Therefore, in our
considered opinion, the two provisions, namely,
67 of the Revenue Code and Sections 2,3 and 5
of the Prevention of Damage to Public Property
Act operate in different fields. In case the
legislature in its wisdom, considered it fit to
declare any action to be also a criminal act, the
same, does not require to be read down or its
scope to be narrowed down. Since, the two
provisions operate in different spheres, it cannot
be accepted that there is any overlap. There is
no bar for the institution and prosecution of
Civil and Criminal proceedings regarding an
act, if both have the mandate of law. In any
case, an act can given rise to both criminal and
civil liability and therefore, both civil and
criminal proceedings can be resorted to
simultaneously.

Coming to the judgement in the case
of Munshi Lal (supra), we find that the learned
Single Judge, proceeded on the premise that
Prevention of Damage to Public Property Act,
1984 was enacted to curb vandalism and
damage to pubic property. The first sentence of
its Statement of Objects and Reasons reads as
follows -

"With a view to curb acts of
vandalism and damage to public property,
including destruction and damage caused
during riots and public commotion, a need was
felt to strengthen the law to enable the
authorities to deal effectively with cases of
damage to public property."

The use of the word "including" has
been given a restrictive interpretation in the
judgment cited. We are of the opinion that the
said word is illustrative bringing also within its
ambit, "destruction and damage caused during
riots and public commotion" as stated in the
Statement of Objects and Reasons. The use of
word "including" therefore, cannot be read to
mean that the Prevention of Damage to Public
Property Act can be invoked only where
damage to public property is occasioned by
vandalism, riots or public commotion.

In our considered opinion, the
learned Single Judge has taken a narrow view
of Section 3(1) of the Act and has primarily
relied upon Sections 3(2) of the Act as also
upon Section 4 of the Act for arriving at the
final conclusion, in the judgement cited.

However, we find that in view of
Section 425 of IPC and Section 3(1) of the
Prevention of Damage to Public Property Act,
1984, the action of the petitioner clearly falls
within the purview of these two sections,
especially when construction of a boundary
wall over public property is clearly admitted by
petitioner."

11. The afore-cited judgments is a
complete answer to the arguments raised by
learned counsel for the petitioners and,
therefore, no relief is liable to be granted in this
writ petition. It is also not established that plot
no.842 over which constructions are being
raised as per the allegations in the FIR, is not
enemy property.

12. Accordingly the writ petition fails and
is dismissed.
----------
(2023) 9 ILRA 142
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.09.2023

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE VIVEK KUMAR SINGH, J.

Criminal Misc. Writ Petition No. 10716 of 2023

M/S Maa Vaishno Traders, Kaushambi
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
9 All. M/S Maa Vaishno Traders, Kaushambi Vs. State of U.P. & Ors.
143
Sri Santosh Tripathi, Mandvi Tripathi

Counsel for the Respondents:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 379 - The U.P. Minor
Mineral
(Concession)
Rules,
2021
-
Sections 3(1), 58, 72(1) & 76 - Mines and
Minerals (Regulation of Development) Act
1957 - Sections 4, 21 & 22 - The
Prevention of Damage to Public Property
Act, 1984 - Sections 3 & 4, - There is no
bar to the lodging of an FIR even where
cognizance
is
barred
except
on
a
complaint
in
writing
by
the
duly
authorized officer for contravention of the
provisions of the U.P. Minor Minerals
(Concession) Rules, 2021.(Para -7)

Surprise inspection carried out by S.D.M. -
allegation in FIR - mining carried out in an
area beyond lease granted to petitioner-
contains ingredients of cognizable offence -
contention - no offence disclosed from
allegations in FIR - offences alleged against
petitioner are under four enactments. (Para
- 3,9,10,11)

HELD:-Petitioner cannot derive any benefit
from Section 22 of the Act and an FIR with
regard to an offence under Section 4(1) or 4(1A) of the Act can be lodged, as they are
cognizable offences in view of Section 21(6).
FIR cannot be quashed because offences
alleged against the petitioner are such regarding
which an FIR could have been lodged as also
because
the
allegation
therein
constitute
offences. (Para -20,23 )

Writ Petition dismissed. (E-7)

List of Cases cited:

Jayant etc. Vs St. of M.P.

(Delivered by Hon'ble Anjani Kumar
Mishra, J.
&
Hon'ble Vivek Kumar Singh, J.)

1. Heard learned counsel for the
petitioner and learned A.G.A. for the State.

2. The instant writ petition seeks
quashing of the FIR dated 21.05.2023
giving rise to Case Crime No.177 of 2023,
under Sections 379 I.P.C. & Sections 3(1),
58, 72(1) of the U.P. Minor Mineral
(Concession) Rules, 2021, Sections 4, 21 of
Mines
and
Minerals
(Regulation
of
Development) Act 1957 and Sections 3, 4
of the Prevention of Damage to Public
Property Act, 1984 at Police Station Sarai
Akil, District Kaushambi.

3. The contention of learned counsel
for the petitioner is that no offence is
disclosed from the allegations in the FIR.

4. It is next contended that no mining
was being carried out on the spot at the
time of the surprise inspection carried out
by the S.D.M., Chail, the Circle Officer,
Chail and the Mining Officer, Chail. In any
case, the offences are compoundable.
Moreover, Section 22 of the Mines and
Minerals (Development and Regulation)
Act, 1957 (hereinafter referred to as "the
Act, 1957") clearly provides that "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." Therefore, the first
information report could not be lodged.

5. It is next contended that Rule 72(1)
of the U.P. Minor Mineral (Concession)
Rules, 2021 (hereinafter referred to as "the
Rules, 2021") only provides that "a holder
of a mining lease or permit or his agent is
required to issue a pass in Form MM-1I or
Form e-MM-11 to any person carrying, a
144 INDIAN LAW REPORTS ALLAHABAD SERIES
consignment of minor mineral by a vehicle,
animal or any other mode of transport."

6. He has also referred to following
Rules to support this contention, namely:-

(i) Section 3(1) of the Rules
permits "mining operations in an area to
which which the rules apply only in
accordance with the terms and conditions
of a mining lease or mining permit"

(ii) Section 58 of the Rules
provides the "penalties or contravention of
the provisions of rule 3. It lays down that
on
conviction
for
contravention
of
provisions of Rule 3, imprisonment of
either description for a term which may
extend up to five years or with fine which
shall not be less than of 2 lacs rupees per
hectare and which may extend to five lacs
rupees per hectare of the area, or with
both."

and

(iii) Rule 76 of the Rules which
provides
that "No
court
shall
take
cognizance of any offence punishable under
these rules except on a complaint in writing
made by the District Officer or any officer
authorised by him in this behalf"

7. Learned AGA has opposed the writ
petition and has stated that the FIR also
alleges an offence under the Indian Penal
Code namely Section 379 IPC, which is a
cognizable offence. Therefore, the FIR
cannot be quashed. He has also relied upon
the decision of the Apex Court in Jayant
etc. Vs. State of Madhya Pradesh, to submit
that there is no bar to the lodging of an FIR
even where cognizance is barred except on
a complaint in writing by the duly
authorized officer for contravention of the
provisions of the U.P. Minor Minerals
(Concession)
Rules,
2021
(hereinafter
referred to as "the Rules, 2021").

8.

We
have
considered
the
submissions made by learned counsel for
the parties and perused the record.

9. The FIR alleges that during a
surprise inspection held on the intervening
night of 20/21.05.2023, it was discovered
that mining had been carried out in an area
of 40 m x 58 meters x .7 meter beyond the
area, which was subject matter of a lease in
favour of M/S Maa Vaishno Traders, whose
proprietor
was
Jagdish
Prasad,
the
petitioner and that the same amounted to
theft of a minor mineral. The mined
material had also been transported contrary
to law.

10. The offences alleged against the
petitioner or under four enactments, The
Indian Penal Code, The Prevention of
Damage to Public Property Act, 1984, The
Mines and Minerals (Development and
Regulation) Act, 1957 and the U.P. Minor
Minerals (Concession) Rules, 2021.

11. In so far as the offences under the
provisions of the IPC and provisions of
Prevention of Damage to Public Property
Act, 1984 are concerned, these offences are
cognizable offences and the FIR to that
extent could be lodged and it contains the
ingredients of a cognizable offence.

12. It is no doubt true that insofar as
the offences under the U.P. Minor Minerals
(Concession) Rules, 2021 are concerned,
the same, in view of Rule 76 are non
cognizable and cognizance thereof, can be
taken only on the basis of a complaint in
writing by an officer authorized to file such
complaint.

13. The position as far as the Mines
and
Minerals
(Development
and
Regulation) Act, 1957 (hereinafter referred
9 All. M/S Maa Vaishno Traders, Kaushambi Vs. State of U.P. & Ors.
145
to as "the Act, 1957") is concerned is
slightly different.

14. The allegation in the FIR is that
mining has been carried out in an area
beyond the lease granted to the petitioner. It
is therefore, an offence under Section 4(1)
of the Mines and Minerals (Development
and Regulation) Act, 1957 (hereinafter
referred to as "the Act, 1957"), which reads
as follows:-

"Section
4.
Prospecting
or
mining operations to be under licence or
lease.

(1) [No person shall undertake
any reconnaissance, prospecting or mining
operations in any area, except under and in
accordance with the terms and conditions
of a reconnaissance permit or of a
prospecting licence or, as the case may be,
of a mining lease, granted under this Act
and the rules made thereunder]:

Provided that nothing in this subsection shall affect any prospecting or
mining operations undertaken in any area
in accordance with 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 Atomic Minerals
Directorate for Explorations and Research of
the Department of Atomic Energy of the
Central Government, the Directorates 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 clause (45) of Section 2 of the
Companies Act, 2013 (18 of 2013) and any
such entity that may be notified for this
purpose by the Central Government."

(1A) No person shall transport or
store or cause to be transported or stored any
mineral otherwise than in accordance with
the provisions of this Act and the rules made
thereunder.
(2) No ["reconnaissance permit, 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
reconnaissance,
prospecting
or
mining
operations with respect to any mineral
specified in the First Schedule in any area
within that State which is not already held
under
any
reconnaissance
permit,
prospecting licence or mining lease."

15. The penalties for contravention of
Section 4(1) or 4(1-A) are provided in
Section 21 of the Act, 1957. Sub-section 1 of
Section 21 is relevant and reads as follows:-

Whoever
contravenes
the
provisions of sub-section (1) of sub-section
(1-A) of section 4 shall be punishable with
imprisonment for a term which may extend to
five years and with find may extend to five
lakh rupees per hectare of the area.

16. Even more importantly sub-section
6
of
Section
21
provides
that
"notwithstanding anything contained in the
Code of Criminal Procedure, 1973(2 of the
1974), an offence under sub-section 1 shall
be cognizable."

17. This subsection 6 has been
incorporated by Act No.37 of 1986 w.e.f.
10.02.1987.
146 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Section 22 of this Act of 1957
provides
that
no
Court
shall
take
cognizance of any offence punishable
under this Act or any Rule therein except
on a complaint in writing by a person
authorized in this behalf by the Central
Government or State Government.

19. It would be relevant to note that
Section 22 is a provision, which has existed
in the Act since its promulgation in the year
1957. Sub-section 6 of Section 21, noticed
above,
has
been
incorporated
w.e.f.
10.02.1987.

20.

Under
the
circumstances,
therefore, Section 22(6) is an exception to
the general provision mentioned Section
22, regarding offence under the Mines and
Minerals (Development and Regulation)
Act, 1957. The offences alleged under the
impugned FIR are under Section 4(1) and
4(1-A) of the Act 1957. The same
therefore, are cognizable offences in view
of Section 6 of Section 21. Therefore, the
petitioner cannot derive any benefit from
Section 22 of the Act and an FIR with
regard to an offence under Section 4(1) or
4(1-A) of the Act can be lodged, as they are
cognizable offences in view of Section
21(6).

21. Insofar as the offences under the
U.P. Minor Minerals (Concession) Rules,
2021 are concerned, the field would be
governed by the ratio in the case of Jayant
etc. (supra). In the concluding part of this
judgment, the Apex Court has summarized
its conclusions in 5 points. For the purposes
of the instant case, point (iv) is relevant and
reads as follows:-

"(iv) 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 In-charge/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 In-charge of
the
police
station/investigating
officer
submits 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."

22. The impugned FIR therefore,
could be lodged also as regards to offences
under
the
U.P.
Minor
Minerals
(Concession) Rules, 2021, which are
governed by Section 22 of the Act.

23. Under the circumstances, we are
constrained to hold that the submissions
made by learned counsel for the petitioner
lack substance. The FIR cannot be quashed
for the reasons given above because the
offences alleged against the petitioner are
such regarding which an FIR could have
been lodged as also because the allegation
therein constitute offences.

 24. The writ petition, therefore, fails
and is dismissed.
----------
9 All. Govardhan Vs. State of U.P.
147
(2023) 9 ILRA 147
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.08.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Misc. Writ Petition No. 12619 of 2023

Govardhan ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Sri
Akhilesh
Srivastava,
Sri
Saksham
Srivastava

Counsel for the Respondent:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 323, 504, 506, 354, 354B
& 452 -The Uttar Pradesh Control of
Goondas Act, 1970 - Section 2(b), 3 -
"Goonda"
-
habitually
commits
the
offences - on one stray incident only
petitioner could not be deemed to be
habitual offender on the basis of that
single incident - "one" cannot be treated
to be a 'habitual offender' unless and until
there is a tendency of recurrence of the
offence. (Para -12,13 )

Show cause notice issued by DM - against
petitioner - for purposes of bringing an
additional offence within four corners of
Goondas Act - quashing of - only one criminal
case - one beat report - solitary case -
"prescribed
printed
proforma"
-
without
application of mind by executive authorities -
general nature of material allegations against
petitioner
-
granted
anticipatory
bail
till
conclusion of trial - witnessing rampant misuse
of provisions Goondas Act. (Para - 2,4, 13,15)

HELD:-Notice is nothing, but a sheer abuse of
power vested in the executive authorities of the
district.
No
uniformity
in
the
executive
authorities of the districts of UP regarding
applicability of this deterrent enactment causing
unwarranted piling up of the cases, challenging
the notices under this Act etc.. Direction issued
to State Government to form a uniform guide
lines in light of judgment. Show cause notice
quashed. (Para - 20,21)

Writ Petition allowed. (E-7)

List of Cases cited:

1. Kailash Jaiswal Vs St. Of U.P. & ors. , Crl.
Misc. W. P. No. 10241 of 2019

2. Suresh Tewari Vs St. of U.P. & ors., 2018 (5)
ALJ 1

(Delivered by Hon'ble Rahul Chaturvedi, J.
&
Hon'ble Mohd. Azhar Husain Idrisi, J.)

1. Heard Sri Akhilesh Srivastava,
learned counsel for the petitioner and the
learned A.G.A. for the State and also
perused the record.

2. Present petition has been filed on
behalf of petitioner Govardhan seeking
following main prayer:

"Issue a writ, order or direction
in the nature of Certiorari quashing the
show cause notice dated 15.6.2023, issued
by the Additional District Magistrate
(Finance & Revenue), Aligarh, in Case No.
3400 of 2023 (State Vs. Govardhan), under
Section 3 of the Uttar Pradesh Control of
Goondas
Act,
1970,
Police
Station
Chharra, District Aligarh (Annexure No. 1
to the writ petition)."

3. Normally, we do not entertain such
type of petitions, where only show cause
notice is issued by the Additional District
Magistrate (Finance & Revenue), Aligarh