# M/S Nishant Traders, Basti v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 603
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-18
- **Case number:** Writ-C No. 595 of 2021
- **Bench:** Sanjay Yadav, Jayant Benerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-nishant-traders-basti-v-state-of-u-p-ors-46930
- **Pages:** 7

## Headnote

A. Civil Law - Uttar Pradesh Minor
Minerals
(Concession)
Rules,
1963
-
Clause (a) of sub rule (2) of Rule 23, 9(2);
Mines
and
Minerals
(Regulation
and
604 INDIAN LAW REPORTS ALLAHABAD SERIES
Development) Act, 1957: Section 15, 19 -
The State in exercise of its powers
conferred under Section 15(1) of 1957 Act
has
incorporated
Rule
23
through
instruction
which
being
within
its
competence
and
being
not
in
contravention to any other existing rule
cannot be faulted with. (Para 14)

1)
Impugned
amendment
does
not
violate Section 15(3) and Section 19 of
1957 Act- Fair reading of Section 15(3) and
the proviso indicates that it relates to
payment of royalty or dead rent by the holder
of a mining lease or any other mineral
concession granted under any rule made u/s
15(1) of 1957 Act. The impugned amendment
as apparent there from is in exercise of
powers u/s 15(1) of 1957 Act and is in the
domain of regulating the grant of mining
permit where if for any reason it is not
possible to settle the river bed mining areas
for the long term, the areas can be settled
through
short
term
mining
permit
not
exceeding 6 months by e-tender/e-auction.
Petitioner's case is not that the newly
substituted Rule 23(2)(a) abrogated the right
of the holders of lease on concession in
present, therefore, it cannot be said to be
violative of S. 15(3) of 1957 Act. Similarly it
does not violate S. 19 of 1957 Act, for the
reason that with the advent of Rule 23(2)(a),
the grant of mining permit for a short period
is in accordance with the Rules, therefore the
wrath of S. 19 is not attracted. (Para 9)

2)
Impugned
amendment
does
not
contravene sub-rule (3) of Rule 23 of
the Rules, 1963 - Evidently sub-rule (3)
stipulates that on the declaration of the area
under sub-rule (1) the provisions of Chapters
II, III, VI and IX except Rules 10, 12, 17 and
93 shall not apply to the area or areas in
respect of which the declaration has been
issued. Such area or areas may be leased out
according to the procedure described in this
Chapter. (Para 10)

It be noted that the applicability of Rule 10
and 12 of Chapter II which provides for
'extent of area for which a mining lease may
be granted' and the 'period of mining lease' is
not suspended. Therefore, the empowerment
of the State Government to settle river bed
mining area for short term mining permit
where for any reason it is not possible to
settle river bed mining for the longer term
does not violate the mandate as contained
under sub-rule (3) of Rule 23 of the Rules,

## Text

3 All. M/S Nishant Traders, Basti Vs. State of U.P. & Ors.
603
21 of the Act alone can decide the
complaint rather reference of Section 29
has been given to indicate that complaint
can be heard even in absence of the
Chairperson and, in any case, due to the
vacancy or any defect in the constitution of
Authority, the proceeding would not be
invalidated. This aspect was not brought to
the notice of Punjab and Haryana High
Court in the case of Janta Land
Promoters Private Limited (supra).

14. It is otherwise a fact that the
petitioner kept silence on the hearing of the
complaint by one Member and thereby he
cannot now be allowed and to seek
invalidation of the proceeding going
contrary to Section 30 of the Act of 2016
and his conduct. The first argument cannot
be addressed simply by referring to Section
21 of the Act of 2016 but has to be
reference
of
other
provisions,
more
specifically, Section 30 of the Act of 2016,
which was inserted by the legislature to
save the proceeding if the vacancy exist in
the Authority or other reason. It is
otherwise a fact that an order was issued to
delegate the power to a Member for hearing
of the complaint, which was considered by
this Court in earlier judgment. The
challenge to the resolution would not
otherwise sustain in the light of Section 30
and 81 of the Act of 2016. The resolution
to authorize one member is even saved by
Section 30 of the Act of 2016.

15. Accordingly, we are unable to
accept the argument raised by the counsel
for the petitioner. It would otherwise
frustrate the very object of the Act of 2016
and would give rise to the anarchy, existing
earlier, in the hands of Promoters.

16. So far as challenge to Rule 24 (a)
of U.P. Real Estate Regulatory Authority
(General) Regulation, 2019 is concerned,
the issue is kept open. It has not been
debated for the reason that an order of the
nature provided under Regulation 24 (a)
has not been passed in the case in hand.
Thus, there is no occasion for the petitioner
to challenge the vires of the said Regulation
in these proceedings However, as and when
the Authority invokes Regulation 24 (a) of
Regulation, 2019, the liberty is given to
challenge the validity. Thus, issue is kept
open for the aforesaid.

17. Thus, for all the reasons, we are
unable to accept any of the arguments
raised by the counsel for the petitioner. The
writ petition is accordingly dismissed,
however, with the liberty to avail the
remedy of appeal if other than the issue
decided by us remains, which may include
the issue towards interest.
----------
(2021)03ILR A603
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2021

BEFORE

THE HON'BLE SANJAY YADAV, J.
THE HON'BLE JAYANT BENERJI, J.

Writ-C No. 595 of 2021

M/S Nishant Traders, Basti ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Devbrat Mukherjee

Counsel for the Respondents:
C.S.C.

A. Civil Law - Uttar Pradesh Minor
Minerals
(Concession)
Rules,
1963
-
Clause (a) of sub rule (2) of Rule 23, 9(2);
Mines
and
Minerals
(Regulation
and
604 INDIAN LAW REPORTS ALLAHABAD SERIES
Development) Act, 1957: Section 15, 19 -
The State in exercise of its powers
conferred under Section 15(1) of 1957 Act
has
incorporated
Rule
23
through
instruction
which
being
within
its
competence
and
being
not
in
contravention to any other existing rule
cannot be faulted with. (Para 14)

1)
Impugned
amendment
does
not
violate Section 15(3) and Section 19 of
1957 Act- Fair reading of Section 15(3) and
the proviso indicates that it relates to
payment of royalty or dead rent by the holder
of a mining lease or any other mineral
concession granted under any rule made u/s
15(1) of 1957 Act. The impugned amendment
as apparent there from is in exercise of
powers u/s 15(1) of 1957 Act and is in the
domain of regulating the grant of mining
permit where if for any reason it is not
possible to settle the river bed mining areas
for the long term, the areas can be settled
through
short
term
mining
permit
not
exceeding 6 months by e-tender/e-auction.
Petitioner's case is not that the newly
substituted Rule 23(2)(a) abrogated the right
of the holders of lease on concession in
present, therefore, it cannot be said to be
violative of S. 15(3) of 1957 Act. Similarly it
does not violate S. 19 of 1957 Act, for the
reason that with the advent of Rule 23(2)(a),
the grant of mining permit for a short period
is in accordance with the Rules, therefore the
wrath of S. 19 is not attracted. (Para 9)

2)
Impugned
amendment
does
not
contravene sub-rule (3) of Rule 23 of
the Rules, 1963 - Evidently sub-rule (3)
stipulates that on the declaration of the area
under sub-rule (1) the provisions of Chapters
II, III, VI and IX except Rules 10, 12, 17 and
93 shall not apply to the area or areas in
respect of which the declaration has been
issued. Such area or areas may be leased out
according to the procedure described in this
Chapter. (Para 10)

It be noted that the applicability of Rule 10
and 12 of Chapter II which provides for
'extent of area for which a mining lease may
be granted' and the 'period of mining lease' is
not suspended. Therefore, the empowerment
of the State Government to settle river bed
mining area for short term mining permit
where for any reason it is not possible to
settle river bed mining for the longer term
does not violate the mandate as contained
under sub-rule (3) of Rule 23 of the Rules,
1963. (Para 11)

3) The proviso to clause (a) of sub-rule
(2) of Rules 23 does not violate the
provision contained under Rule 51 which
sets out the outer limit of six months for
grant of mining permit. (Para 11)

Writ petition dismissed. (E-3)

Precedent distinguished:

1. Sandhur Magnese & Iron Ores Ltd. Vs St. of
Karn. & ors., (2010) 13 SCC 1 (Para 13)

2. St. of Kerala & ors. Vs Kerala Rare Earth &
Minerals Ltd. & ors., (2016) 6 SCC 323 (Para 15,
16)

3. Shiv Charan Vs U.O.I., 1981 Alld. LJ 641
(Para 17)

Present petition challenges the validity of
clause (a) of sub-rule (2) of Rule 23 of
Uttar
Pradesh
Minor
Minerals
(Concession) Rules, 1963 and prays for
quashing of notice dated 20.6.2020.

(Delivered by Hon'ble Sanjay Yadav, J. &
Hon'ble Jayant Banerji, J.)

1. Shri Devbrat Mukherjee appears
for the petitioner.

2. Learned standing counsel appears
for the State respondents.

3. The validity of clause (a) of sub
rule (2) of Rule 23 of Uttar Pradesh Minor
Minerals (Concession) Rules, 1963 is being
questioned vide this petition under Article
226 of the Constitution of India. Ancillary
relief sought by the petitioner is the
quashment of notice dated 20.6.2020
3 All. M/S Nishant Traders, Basti Vs. State of U.P. & Ors.
605
inviting e-tender for grant of mineral lease.
Petitioner also seeks mandamus to the
extent that the respondents be directed to
grant mining lease for five years.

4. The impugned clause (a) sub rule
(2) of Rule 23 of 1963 Rules as brought in
vogue vide 50th Amendment Rules 2020
w.e.f. 22.5.2020 is reproduced for ready
reference:

" (2) Subject to direction issued by the
State Government from time to time in this
behalf-

(a) The area or areas for mining
leases in respect of sand or morrum or
bajari or boulder or any of these in mixed
state exclusively found in the riverbed shall
be leased out only by e-tender or e-auction
or e-tender-cum-e-auction for the fixed
period of five years at a time:

Provided that, if for any reason, it is
not possible to settle the river bed mining
areas for the long term, the areas may be
settled through short term mining permit.
Short term permit will be granted for a
maximum period of 6 months by e-tender/eauction, under terms and conditions laid
down by the State Government from time to
time:

Provided further that in case of grant
of mining permit, the permit holder shall
make payment of all due amount in
advance."

5. Apparently the amendment is in
exercise of the powers conferred under
section 15 of the Mines and Minerals
(Regulation and Development) Act, 1957,
which provides that the State Government
may by Notification in the official gazette
make rule for regulating the grant of quality
leases and mining leases or other mineral
concessions in respect to minor minerals
and for purpose connected therewith. Sub
section (1-A) of Section 15 of 1957 Act
further empowers the State Government to
make Rules in respect of matters which
find mention in clauses (a) to (o) thereof.
That clause (a) stipulates that the Rule can
be made in respect of the person by whom
and the manner in which, applications for
quarry leases, mining leases or other
mineral concessions may be made and the
fees to be paid therefor. That clause (e)
stipulates that rule can be framed in respect
of the procedure for obtaining quarry
leases, mining leases or other mineral
concession.

6. Precise submissions on behalf of
the petitioner is that the Rules of 1963 there
are two provisions for grant of concession
under Chapter II by way of mining lease
and the other under Chapter IV by way of
auction lease. It is urged that both these
Chapters cannot operate simultaneously. In
other words it is contended that under
Chapter IV of the Rules of 1963 there
being a legislation that once a mining area
had been declared for grant of e-tendercum-e-auction lease other Chapters for
grant of concession are inoperative.

7. It is further contended that under
declaration of Rule 23(3) of the Rules of
1963, the provisions of Chapter II, III and
IV does not apply to such area. It is urged
that Chapter II deals with grant of mining
lease on the basis of certain preferential
rights and Chapter VI deals with mining
permit. It is contended that the impugned
amendment which facilitates short term
mining permit by way of e-tender-cum-eauction is contrary to the entire scheme of
Rules of 1963. As also it contravenes the
provisions contained under sub section (3)
of Section 15 and Section 19 of 1957 Act.
It is also borne out from the pleadings that
the petitioner is a prospective applicant for
606 INDIAN LAW REPORTS ALLAHABAD SERIES
lease of mining area situated at village
Manjh Sautarampur Tehsil Haraiya District
Basti admeasuring 10.15 hectares having a
preferential rights under Rule 9(2) of the
Rules of 1963. Be that as it may the
impugned amendment is challenged mainly
on the ground of it being violative of
Section 15(3) and 19 of 1957 Act and is
contrary to the scheme of 1963 Rules.

8. As regard to contention that the
impugned rule contravenes Section 15(3)
and 19 of 1957 Act, it is observed that
Section 15 of 1957 Act empowers the State
Government may, by notification in the
official gazette, make rules for regulating
the grant of quality leases, mining leases
and other mineral concessions in respect of
minor minerals and for purposes connected
therewith. Sub section (3) of Section 15 of
1957 Act which stipulates that the holder of
a mining lease or any other mineral
concession granted under any rule made
under sub-section (1) shall pay royalty or
dead rent, whichever is more in respect of
minor minerals 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. Proviso to sub rule (3)
stipulates 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.

9. Fair reading of sub section (3) and
the proviso indicates that it relates to
payment of royalty or dead rent by the
holder of a mining lease or any other
mineral concession granted under any rule
made under sub section (1) of Section 15 of
1957 Act. The impugned amendment as
apparent therefrom is in exercise of powers
under Section 15(1) of 1957 Act and is in
the domain of regulating the grant of
mining permit where if for any reason it is
not possible to settle the river bed mining
areas for the long term, the areas can be
settled through short term mining permit
not exceeding 6 months by e-tender/eauction. It being not the case of the
petitioner that newly substituted Rule
23(2)(a) abrogated the right of the holders
of lease on concession in praesent, we
perceive no good reasons to accede to the
contention that it violates section 15(3) of
1957 Act. The contention to that effect
therefore fails. Similarly the contention that
the impugned amendment violates section
19 of 1957 also fails for the reason that
with the advent of Rule 23(2)(a) the grant
of mining permit for a short period being in
accordance with the Rules, the wrath of
Section 19 of 1957 is not attracted.

10. As to the contention that the
impugned amendment contravenes sub rule
(3) of Rule 23 of the Rules, 1963.
Evidently sub-rule (3) stipulates that on the
declaration of the area under sub-rule (1)
the provisions of Chapters II, III, VI and IX
except Rules 10, 12, 17 and 93 shall not
apply to the area or areas in respect of
which the declaration has been issued. Such
area or areas may be leased out according
to the procedure described in this Chapter.

11. Thus the application of the
provisions of Chapter II (which makes
provision regarding grant of mining lease
and includes provision as to preferential
right of certain persons) Chapter III (which
provides the payment of royalty and dead
rent) and Chapter VI (which deals with
mining permit) stand suspended once an
area is declared to be leased out by auctioncum-e-tender or e-auction. It be noted that
the applicability of Rule 10 and 12 of
Chapter II which provides for ''extent of
3 All. M/S Nishant Traders, Basti Vs. State of U.P. & Ors.
607
area for which a mining lease may be
granted' and the ''period of mining lease' is
not suspended. In our considered opinion
the empowerment of the State Government
to settle river bed mining area for short
term mining permit where for any reason it
is not possible to settle river bed mining for
the longer term does not violate the
mandate as contained under sub rule (3) of
Rule 23 of the Rules, 1963. Similarly the
proviso to clause (a) of sub rule (2) of
Rules 23 does not violate the provision
contained under Rule 51 which sets out the
outer limit of six months for grant of
mining permit.

12. During course of hearing on
admission learned counsel for the petitioner
relied on various judgments.

13. In Sandur Magnese and Iron
Ores Ltd. v. State of Karnataka and
Others (2010) 13 SCC 1 dwelling on
following issues, viz,

"
6.
(a)
Whether
the
State
government's recommendation dated 6-122004 and the proceedings of the Chief
Minister are contrary to the provisions of
Section 11 of the Act and rules 59 and 60 of
MC Rules and not valid in law.

(b). Whether the respondent Jindal's
application dated 24-10-2002 made prior
to notification dated 15-03-2003 is capable
of being entertained along with the
applications made in pursuant to the said
notification.

(c.) Whether the order of the high
court of Karnataka in Ziaulla Sharieff's
case permits the consideration of the
respondent Jindal's application dated 2410-2002 made prior to the notification
dated 15-3-2003.

(d.) Whether Rule 35 of the MC Rules
justifies the recommendation of the State
Government in favour of the respondents
Jindal and Kalyani.

(e.) Whether the criterion of "captive
consumption" referred to in TISCO Ltd. v.
Union of India (1996) 9 SCC 709, has any
application in this case despite the MMDR
Act and the MC Rules constituting a
complete code.

(f.) Whether factors such as the past
commitments by the State Government to
the applicants who have already set up
steel plants, matter for consideration for
grant of lease despite the MMDR Act and
the MC Rules constituting a complete code.

(g.) Whether the recommendation in
favour of respondents Jindal and Kalyani
saved by the operation of the law of equity.

(h.) Whether the learned Single Judge
as well as the Division Bench are justified
in arriving at such conclusion."

it was held by their Lordships as
under:

" 43. It is not open to the State
Government to justify grant based on
criteria that are dehors the MMDR Act and
the MC Rules. The exercise has to be done
strictly in accordance with the statutory
provisions and if there is any deviation the
same cannot be sustained. It is the normal
rule of construction that when an statute
vests certain power in an authority to be
exercised in a particular manner then the
said authority has to exercise it only in the
manner provided in the statute itself. This
principal has been reiterated in CIT v.
Anjum M.H. Ghaswala (2002) 1 SCC 633;
Captain Sube Singh v. Lt. Governor of
Delhi (2004) 6 SCC 440 and State of U.P.
v. Singhara Singh AIR 1964 SC 358"

14. Present is not a case where the
functionaries of the State Government
dehors the rules have issued instructions
608 INDIAN LAW REPORTS ALLAHABAD SERIES
rather the State in exercise of its powers
conferred under section 15(1) of 1957 Act
has
incorporated
Rule
23
through
instruction
which
being
within
its
competent and being not in contravention
to any other existing rule cannot be faulted
with.

15. As to decision in State of Kerala
and Others Vs. Kerala Rare Earth And
Minerals Limited And Others (2016) 6
SCC 323 the issue therein was whether the
ownership in the mineral resources in the
land owned by the State Government is
vested in the State Government and if it is,
whether the State Government has the right
to decline lease on the ground that the
minerals on the areas where the same are
found have been reserved for exploitation
by
Government
Companies
or
Corporations, it was held in paragraph 17
and 19 as under:

"17. It is well settled that if the law
requires a particular thing to be done in a
particular manner, then, in order to be
valid the act must be done in the prescribed
manner alone [See: Commissioner of
Income Tax, Mumbai v. Anjum M.H.
Ghaswala and ors. (2002) 1 SCC 633;
Captain Sube Singh and Ors. v. Lt.
Governor of Delhi and Ors. (2004) 6 SCC
440; State of U.P. v. Singhara Singh AIR
1964 SC 358; and Mohinder Singh Gill v.
Chief Election Commissioner (1978) 1 SCC
405]. Absence of the Central Government's
approval to reservation and a notification
as required by Section 17A, therefore,
renders the State Government's claim of
reservation untenable till such time a valid
reservation is made in accordance with
law. It is trite that the State Government's
general executive power cannot be invoked
to make a reservation dehors Section 17A.

18...

19.The
upshot
of
the
above
discussion then is that while the State
Government is the owner of the mineral
deposits in the lands which vest in the
Government as is the position in the case
at hand, the Parliament has by reason of
the declaration made in Section 2 of the
1957 Act acquired complete dominion
over the legislative field covered by the
said legislation. The Act does not denude
the State of the ownership of the minerals
situate within its territories but there is
no manner of doubt that it regulates to
the extent set out in the provisions of the
Act the development of mines and
minerals in the country. It follows that if
the State Government proposes to reserve
any area for exploitation by the State
owned corporation or company, it must
resort to making of such reservation in
terms of Section 17A with the approval of
the Central Government and by a
notification specifying boundaries of the
area and mineral or minerals in respect
of which such areas will be reserved.
Inasmuch as the State Government have
not so far issued any notification in terms
of Section 17A, the Industrial Policy -
2007 of the Kerala State Government
does not have the effect of making a valid
reservation within the comprehension of
Section 17A. The High Court was,
therefore, justified in holding that there is
no valid reservation as at present no
matter the government can make such a
reservation if so advised in the manner
prescribed by law. In other words, the
dismissal of this appeal shall not prevent
the State from invoking its right under
Section 17(A)(2) of the Act by issuing
notification in respect of the mineral
deposits in question. There is, in that
view, no reason for us to interfere with
the judgment and order passed by the
High Court."
3 All. Baroda UP Bank Erstwhile Purvanchal Bank, Gorakhpur & Anr. Vs. Chief Labour Commissioner & Ors.
609

16. Apparently the issue was not
whether the State in exercise of its
powers under section 15(1) of 1957 Act
can amend the rules relating to minor
mineral to regulate the mining lease and
other mineral concession. Therefore the
petitioner is not benefited from the
decision in State of Kerala and others
Vs. Kerala Rare Earth And Minerals
Limited And Others (supra)

17. Even the decision in Shiv
Charan vs. Union of India 1981 Alld.
LJ 641 wherein it is held that the
mining lease can be granted only in
accordance
with
the
procedure
in
Chapter II or IV and not in any way by
relaxing terms and condition under
section 68 of U.P. Minor Minerals
(Concession) Rules 1963 is of no
assistance.

18. Having this considered since
we do not perceive any merit in the
challenge
to
the
50th
amendment
whereby impugned Rule 23(2)(a) is
substituted in the Rules of 1963, the
indulgence is declined.

19. Petition fails and is dismissed.

20. No costs.
----------
(2021)03ILR A609
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2021

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Writ-C No. 2340 of 2021
Connected with
Writ C Nos. 3032 of 2021, 2727 of 2021, 2862
of 2021, 5508 of 2021, 5419 of 2021, 5352 of
2021, 5392 of 2021, 5170 of 2021, 5159 of
2021, 5079 of 2021,5478 of 2021 & 5080 of
2021

Baroda UP Bank Erstwhile Purvanchal
Bank, Gorakhpur & Anr. ...Petitioners
Versus
Chief Labour Commissioner & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Gyan Prakash Shrivastava, Sri Ashok Khare

Counsel for the Respondents:
A.S.G.I., Sri Amrendra Pratap Singh, Sri Rajesh
Tripathi

A. Civil Law - Service - Maintainability of
writ petition - Payment of Gratuity Act,
1972 - Section 7(4), 7(7), Rule 10(i);
Purvanchal
Gramin
Bank
(Officers
&
Employees) Service Regulations, 2010:
Regulation 72; Regional Rural Banks Act,
1976: Section 30 - The fact remains that
jurisdiction of the Controlling Authority
has not yet been settled and divergent
views of various High Courts are available
on the issue in hand. (Para 17)

While the powers the High Court may exercise
under its writ jurisdiction are not subject to
strict legal principles, two clear principles
emerge with respect to when a High Court's writ
jurisdiction may be engaged. First, the decision
of the High Court to entertain or not entertain a
particular action under its writ jurisdiction is
fundamentally
discretionary.
Secondly,
limitations placed on the court's decision to
exercise or refuse to exercise its writ jurisdiction
are
self-imposed.
It
is
a
well-settled
principle that the writ jurisdiction of a
High Court cannot be completely excluded
by statute. (Para 21)

Entertaining writ petition - Art. 226 is a
rule
of
discretion
and
not
one
of
compulsion and the Court may consider the
pros and cons of, the case and then may
interfere if it comes to the conclusion that where
the petitioner seeks enforcement of any of the
fundamental rights or where there is failure of
principles of natural justice or where the orders
or proceedings are wholly without jurisdiction or
the vires of an Act is challenged. Thus, law at