# No. 46770 of 2004, Satyendra Kumar Tripathi v. State of U.P. and others

- **Citation:** (2008) 2 ILRA 476
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-04-29
- **Case number:** Civil Misc. Writ Petition No. 13317 of 2008
- **Bench:** Janardan Sahai, S.P. Mehrotra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/no-46770-of-2004-satyendra-kumar-tripathi-v-state-of-u-p-and-others-41124
- **Pages:** 8

## Headnote

U.P. Minor Minerals (Concession) Rules,
1963-Rule45-Restrictions-no
use
of
machine-a part of contract-petitioner
can not be allowed to resigned from that
and resist the stoppage of the user of
Machine.

Held: Para 19

Moreover, there is another important
aspect in respect of these cases. The
condition regarding the prohibition on
the use of machine is part of a contract
between the State of Uttar Pradesh and
the lease holder and if the lease holder
has accepted the imposition of the
condition
and
has
acted
upon
the
contract by taking the lease, it is not
open to the lease holder to turn back and
to retract from the condition. We find
that
there
is
no
illegality
in
the
imposition of the condition in the lease
deed and the condition is not in breach
of any Government Order nor in breach
of
any
Statute
or
constitutional
provision. In view of the condition that
the lessee has no right to carry on
mining
operations
without
the
permission of the District Magistrate in
writing contained in lease the petitioner
has no right to resist stoppage of user of
machine for mining.
Case law discussed:
AIR 1980 SC 1789 (1), Civil Misc. Writ Petition
No. 46770 of 2004, Satyendra Kumar Tripathi
Vs. State of U.P. and others

## Text

476 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
orders dated 29.11.1995 (Anenxure-5)
and 19.11.1998 (Annexure-7) are hereby
quashed and it is held that the petitioners
are not liable to pay any further stamp
duty on the instrument in question. No
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.04.2008

BEFORE
THE HON'BLE JANARDAN SAHAI, J.
THE HON'BLE S.P. MEHROTRA, J.

Civil Misc. Writ Petition No. 13317 of 2008
Connected with
Civil Misc. Writ Petition No. 13318 of 2008
Civil Misc. Writ Petition No. 13734 of 2008

Zunaid Ahmad

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

Counsel for the Petitioner:
Sri S.P. Singh
Sri Deo Prakash Singh

Counsel for the Respondents:
Sri Vishnu Pratap
Sri Alok Kumar Singh
S.C.

U.P. Minor Minerals (Concession) Rules,
1963-Rule45-Restrictions-no
use
of
machine-a part of contract-petitioner
can not be allowed to resigned from that
and resist the stoppage of the user of
Machine.

Held: Para 19

Moreover, there is another important
aspect in respect of these cases. The
condition regarding the prohibition on
the use of machine is part of a contract
between the State of Uttar Pradesh and
the lease holder and if the lease holder
has accepted the imposition of the
condition
and
has
acted
upon
the
contract by taking the lease, it is not
open to the lease holder to turn back and
to retract from the condition. We find
that
there
is
no
illegality
in
the
imposition of the condition in the lease
deed and the condition is not in breach
of any Government Order nor in breach
of
any
Statute
or
constitutional
provision. In view of the condition that
the lessee has no right to carry on
mining
operations
without
the
permission of the District Magistrate in
writing contained in lease the petitioner
has no right to resist stoppage of user of
machine for mining.
Case law discussed:
AIR 1980 SC 1789 (1), Civil Misc. Writ Petition
No. 46770 of 2004, Satyendra Kumar Tripathi
Vs. State of U.P. and others

(Delivered by Hon'ble Janardan Sahai, J.)

1. In these three Writ Petitions
identical controversy is involved and as
such all these Writ Petitions have been
heard together and are being disposed of
by a common order. Counter and
rejoinder affidavits have been exchanged
in these cases and the counsel for the
parties are agreed that the Petitions may
be disposed of finally.

2. The petitioners are mining lease
holders of Sand on the Yamuna River bed
in portions of District-Kaushambi. They
were granted mining leases in the year
2006 which are operative for a period of
three years i.e. till 2009. There is a
condition in the lease deed that they will
not conduct mining operations by use of
machines except with the permission of
the District Magistrate. It is not in dispute
that the petitioners have not obtained any
permission from the District Magistrate.
The petitioners are aggrieved by the
stoppage of mining operations on the
basis of oral orders of the District
2 All] Zunaid Ahmad V. State of U.P. and others
477
Magistrate. Other contentions have also
been advanced by Shri S.P. Singh, learned
Senior Counsel assisted by Shri Deo
Prakash Singh, counsel for the petitioners
challenging the condition in the lease
prohibiting them from using machines
without
permission
of
the
District
Magistrate.

3. Before examining the various
contentions advanced by Shri S.P. Singh
learned Senior Counsel appearing for the
petitioners, and the learned Standing
Counsel appearing for the respondents, it
is necessary to refer to the Government
Orders upon the point which have been
issued from time to time.

4. By the Government Order dated
30.12.2000, the Government of Uttar
Pradesh replaced the system of grant of
lease by auction under Chapter IV of the
U.P. Minor Minerals (Concession) Rules,
1963 by the system of grant of lease on
application
under
Chapter
II.
The
Government Order notices the fact that
use of machines by the Thekedars under
the auction system has an adverse effect
upon the environment and natural flow of
the river and also causes damage to the
river banks besides causing loss of job
opportunity to persons belonging to castes
traditionally engaged in the excavation of
sand and morrum for their livelihood. In
Rule 9(2)(e) of the U.P. Minor Minerals
(Concession) Rules, 1963 the names of
several castes traditionally engaged in
excavation of sand/morrum for their
livelihood, have been given in the context
of giving preference to them in the grant
of leases. This Government Order directs
the lease granting authority to incorporate
a condition in the lease deed prohibiting
use of machines in mining work. In the
subsequent Government Order dated
30.11.2002, which too is applicable to
grant of leases by auction system,
paragraph 3 contains a condition that use
of machines will be prohibited in
excavation work and this fact be intimated
to the bidders at time of auction and the
condition be incorporated in the lease
documents. It appears that the Directorate
of Geology had doubts about the validity
of incorporation of a blanket condition
prohibiting the use of machines in
excavation work. A letter dated 16.1.2003
was sent by the Director of Geology and
Mines to the State Government. This
letter was in reference to the condition in
paragraph 3 of the Government Order
dated
30.11.2002
relating
to
the
prohibition to the use of machines. The
letter states that a lease holder was free to
do all such things as were covered under
conditions (a) to (g) of Rule 40 and that
the nature of activity covered by these
clauses suggests that the lessee was free
to use machines in excavation work if
such use would cause no damage. It was
stated that the condition prohibiting the
use
of
machines
altogether
was
inconsistent
with
Rule
40
and
a
recommendation was made that the
blanket ban on the use of machines
directed to be imposed in the terms of the
lease is not proper and such condition be
not imposed unless it was felt that the use
of machine would cause damage to the
environment or would obstruct the natural
flow of the river. The Secretary to the
Government of Uttar Pradesh by a letter
dated 5.2.2003 addressed to the Director,
Geology and Mines informed him that the
proposal sent, had met the approval of the
State Government. The latest Government
Order upon the point is the Government
Order
dated
16.10.2004.
This
Government Order was issued in the wake
of auction system again being replaced by
478 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the system of settlement of leases under
Chapter II. Condition (xiii) of paragraph
(3) of this Government Order permits use
of machines in the mining operations but
provides that the lease deed would contain
a condition that if the authorities are
satisfied that the use of machines would
cause damage to the environment or to the
river bank or to the natural flow of the
river, it would be open to the authorities
to stop the use of machines. As regards
the letter of the Director, Geology and
Mines, which has been approved by the
State Government upon which Sri Singh
relied it is enough to say that the said
letter stands superseded by the new policy
of the Government comprehended in the
government order dated October 16,
2004.

5. Shri S.P. Singh learned Senior
Counsel for the petitioners submitted that
use of machine is not prohibited in the
Government Order and in fact it can be
prohibited only if the use of machine is
likely to adversely affect the environment
or the natural flow of the river or would
damage the banks. The learned Counsel
placed reliance upon Rule 40 of the U.P.
Minor
Minerals
(Concession)
Rules,
1963, particularly clauses (a), (b) and (c)
of that Rule. Referring to these clauses, it
was contended that the nature of the
activity contemplated in these clauses by
implication permits the use of machine as
the works, such as mining, boring,
digging, drilling etc. can only be
performed by the use of machines. Rule
40, Clauses (a), (b) and (c) are quoted
below:

"40. Liberties, powers and privileges
of the lessee.- Subject to the restrictions
and conditions mentioned in rule 41, a
person holding a mining lease under these
rules may have the liberty, power and
privilege:-
(a) to enter upon the lands mentioned in
the lease and to search for mine, bore,
dig, drill or win, work, dress, process,
convert, carry away and dispose of the
mineral for which the lease is held;
(b) to make in the said lands any pits,
shafts, inclines, levels, waterways or other
works;
(c) to erect and obstruct on the lands
any machinery, plant, dressing, floors,
furnaces,
brick-kilns,
workshops,
storehouses and other building of the like
nature;
(d) to (g).........."

6. It was, thus, contended that the
condition in the lease deed prohibiting
altogether the use of machines is
repugnant to the letter dated 16.1.2003 of
the Director and of the Secretary,
Government of Uttar Pradesh dated
5.2.2003 communicating the approval of
the State Government to the Director's
proposal and to the Government Order
dated 16.10.2004 as well as to Rule 40 of
the U.P. Minor Minerals (Concession)
Rules, 1963. Learned Standing Counsel
appearing for the State submitted that
Rule 40 of the U.P. Minor Minerals
(Concession) Rules, 1963 is subject to
Rule 41 of those Rules. He referred to
Rule 41 (g) of the U.P. Minor Minerals
(Concession) Rules, 1963, which is as
follows:

"41. Restrictions and conditions as
to exercise of the liberties, powers and
privileges of- The holder of a lease shall
exercise
the
liberties,
power
and
privileges mentioned in rule 40 subject to
the following restrictions and conditions:
"(a) to (f)...........
2 All] Zunaid Ahmad V. State of U.P. and others
479
(g) the lessee is bound to keep
vigilance
for
not
polluting
the
environment of the lease-hold area and
nearby area in connection with mining
operation and also maintain ecological
balance of the area. It at any time it is
found that the mining operation are
leading to environmental pollution or
imbalance of ecology, then after giving an
opportunity of being heard, the lease may
be prematurely terminated."

7. Clause (g) of Rule 41 permits
premature termination of lease if the
mining operations lead to environmental
pollution or imbalance of ecology. These
are words of wide meaning and effect
upon the natural flow of the stream or
damage to the banks would also be
covered under the expression. If the use of
machines has such an effect, it can be
stopped. If a lease can be prematurely
terminated if ecological imbalance or
environmental pollution is caused, it is
implicit that any condition which has the
effect of protecting the environment or
ecology including a condition prohibiting
the use of machines in mining operations
can be imposed.

8. The Standing Counsel also relied
upon Rule 68 of the U.P. Minor Minerals
(Concession) Rules, 1963 which provides
relaxation of Rules in special cases. The
said Rule is quoted below:

"68. Relaxation of rules in special
cases.- The State Government may, if it is
of opinion that in the interest of mineral
development it is necessary so to do, by
order in writing and for reasons to be
recorded authorise in any case the grant
of any mining lease or the working of any
mine for the purpose of winning any
mineral on terms and conditions different
from those laid down in these rules."

Sub-section 2 of Section 4A of the
Mines and Minerals (Development and
Regulation) Act, 1957 is also relevant and
is being quoted below:

"4A. Termination of prospecting
licences or mining leases - (1).............
(2) Where the State Government, is
of opinion that it is expedient in the
interest of regulation of mines and
mineral development; preservation of
natural environment, control of floods,
prevention of pollution or to avoid danger
to public health or communications or to
ensure safety of buildings, monuments or
other structures or for such other
purposes, as the State Government may
deem fit, it may, by an order, in respect of
any minor mineral, make premature
termination of a prospecting licence or
mining lease with respect to the area or
any part thereof covered by such licence
or lease.
(3) to (4).............."

9. This Section gives very wide
powers to the State Government to make
a premature termination of a mining lease
in the interest of regulation of mines and
minerals development, for preservation of
natural environment, control of floods,
prevention of pollution or to avoid danger
to public health or communications or to
ensure safety of buildings, monuments or
other structures or for such purposes as
the State Government may deem fit.

10. The words 'for such purposes as
the State Government may deem fit' have
a wide sweep. They would cover even the
Directive Principles of State policy under
Chapter IV of the Constitution which
480 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
though not enforceable by Court, are
nevertheless
fundamental
in
the
governance of the country and it is the
duty of the State to apply these principles
in making laws.

11. Thus, even though there may not
be any condition in the lease deed
prohibiting the use of machines, the State
Government may, in the circumstances
specified in sub-section (2) of Section 4A,
prematurely terminate the lease. If the
State
Government
has
powers
to
terminate a lease prematurely in the wide
range of circumstances specified in subsection (2) of Section 4A without there
being such a condition in the lease deed, it
is implicit that such a condition can be
imposed in the lease if such condition
relates to a matter specified in sub-section
(2) of Section 4A. The State Government
may also use the provisions under Rule 68
of the U.P. Minor Minerals (Concession)
Rules, 1963 and grant lease on terms and
conditions different from those provided
under the Rules. In view of the provisions
of Rule 41 and 68 and Section 4A of the
Mines & Mineral (Development and
Regulation) Act, 1957, a condition in the
lease prohibiting the use of machines can
be incorporated. It also appears that even
in the absence of any such condition
prohibiting the use of machines, the
Government
may
stop
the use of
machines if such use adversely affects the
environment or for any of the purposes
specified in Section 4A(2) of the Mines &
Mineral (Development and Regulation)
Act, 1957.

12. The learned Standing Counsel
relied upon the averments made in
paragraph 13 of the counter affidavit that
the use of machines also creates a social
problem of unemployment of mining
labourers who are traditionally engaged in
this profession, causing law and order
problem also. Various provisions from the
Constitution of India have been cited to
drive home the fact that the interest of
labour
belonging
to
the
castes
traditionally occupied in the mining work
has to be taken into account in regulating
the right of the lessees to carry on mining
activity with the use of machines. Special
reference was made by the Standing
Counsel to the Directive Principles of
State Policy including Article 38 of the
constitution of India which provides that
the State shall strive to secure a social
order for the welfare of its people; Article
39(a) of the Constitution of India which
provides that the State will provide
adequate means of livelihood to the
citizens; Article 41 of the Constitution of
India which provides that the State shall
make effective provision for securing the
right to work; Article 46 which provides
that the State shall promote with special
care
the
educational
and economic
interests of the weaker sections of the
people,
and,
in
particular,
of
the
Scheduled Castes and the Schedules
Tribes and shall protect them from social
injustice and all forms of exploitation;
Article 48-A of the Constitution of India
which provides that the State shall
endeavour to protect and improve the
environment.

13.

Article
19(1)(g)
of
the
Constitution of India gives right to every
citizen to carry on any occupation, trade
or business but the right is subject to
imposition
of
reasonable
restrictions
under Article 19(6) of the Constitution of
India in the interests of general public or
for providing professional or technical
qualifications necessary for practising any
profession or carrying on any occupation
2 All] Zunaid Ahmad V. State of U.P. and others
481
etc. or for creating monopoly in favour of
the State in respect of any trade etc.

14. In Minerva Mills Ltd. and
others Vs. Union of India and others,
AIR 1980 SC 1789 (1) (paragraphs 60,61
& 62), the Supreme Court has emphasised
that a balance be struck between the
fundamental rights given in Part -III of
the Constitution of India and the Directive
Principles contained in Part-IV of the
Constitution of India. Rule 40 of the U.P.
Minor Minerals (Concession) Rules, 1963
is a facet of the fundamental right given in
Article 19(1)(g) of the Constitution of
India while Rule 41 of the U.P. Minor
Minerals (Concession) Rules, 1963 as
well as Section 4A (2) of the Mines and
Minerals (Development and Regulation)
Act, 1957 are facets of the reasonable
restrictions contemplated in Clause (6) of
Article 19 of the Constitution of India as
also the Directive Principles pertaining to
the preservation of environment.

15. The term in the lease deed
regarding prior permission of the District
Magistrate before use of machines strikes
a balance between the right to carry on
mining operations with the preservation
of environment etc. Such a clause in the
lease deed is in consonance with the
principles laid down in the Minerva Mills
case (supra).

16. Under Section 4A (2) of the
Mines & Mineral (Development and
Regulation)
Act,
1957,
the
State
Government can prematurely terminate
the lease in the circumstances specified in
that Section and 'for such other purposes
as the State Government may deem fit'.
The words 'other purpose' are wide
enough to cover the Directive Principles
of State policy. It follows by implication
that
if
the
State
Government
can
permanently terminate the lease in order
to give effect or to secure the objects
given in Section 4A(2), it can also impose
conditions in lease which are different
from those express or implicit in Rule 40.
This can be done under Rule 68 and even
otherwise
under
Rule
41(g).
The
condition in the lease that the lessee shall
not use machines in mining work without
permission of the authorities is not
repugnant to the provisions of the
Government Order.

17. It appears that the prohibition on
the use of machines can be made not only
on account of the fact that the use of
machines will cause damage to the
environment or would affect the natural
flow of the river but also if it is found that
the use of the machines will displace the
persons of castes traditionally engaged in
mining. The importance of this aspect is
also clear from the provisions of Rule
9(2)(e)of
the
U.P.
Minor
Minerals
(Concession) Rules, 1963 which provides
that even leases can be granted on
preferential basis to such persons. The
validity of new Rule 9(2)(e) of the U.P.
Minor Minerals (Concession) Rules, 1963
was challenged but it has been upheld by
this Court in Civil Misc. Writ Petition No.
46770
of
2004,
Satyendra
Kumar
Tripathi Vs. State of U.P. and others,
decided
on
23.12.2004
in
certain
circumstances.

18. The contention of Shri S.P.
Singh, learned Senior Counsel appearing
for the petitioner that the condition is
violative of the Government Order or of
Rule 40 of the U.P. Minor Minerals
(Concession) Rules, 1963, in our view,
cannot be accepted in view of the fact that
Rule 40 is subject to Rule 41 and to the
482 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
relaxation power of the State Government
under Rule 68 of the U.P. Minor Minerals
(Concession) Rules, 1963 and also in
view of the provisions of Section 4A (2)
of the Mines and Minerals (Development
and Regulation) Act, 1957.

19. Moreover, there is another
important aspect in respect of these cases.
The condition regarding the prohibition
on the use of machine is part of a contract
between the State of Uttar Pradesh and
the lease holder and if the lease holder has
accepted the imposition of the condition
and has acted upon the contract by taking
the lease, it is not open to the lease holder
to turn back and to retract from the
condition. We find that there is no
illegality in the imposition of the
condition in the lease deed and the
condition is not in breach of any
Government Order nor in breach of any
Statute or constitutional provision. In
view of the condition that the lessee has
no right to carry on mining operations
without the permission of the District
Magistrate in writing contained in lease
the petitioner has no right to resist
stoppage of user of machine for mining.

20. Shri S.P. Singh, learned Senior
Counsel appearing for the petitioner also
drew our attention to the Newspaper
Report in the Amar Ujala of 29.02.2008
(Annexure-7 to the Writ Petition). This
Report says that about 5000 labour
traditionally engaged in excavation of
sand who were rendered unemployed on
account of use of machines launched an
agitation on the river bank of Yamuna in
the Kaushambi and Allahabad Districts
and
destroyed
machines
and
one
Thekedar had also fired to protect his
machines and had thereby severely
wounded a labourer. The Report goes on
to say that the unemployed labourers had
been agitating against the use of machines
by the Thekedars for a long time but the
district administration paid no heed. Even
a week before the incident the workers
had held a meeting warning the district
administration but even that had no
impact upon the administration. No doubt
a Newspaper Report is not admissible as
primary evidence, but it has also been
stated in paragraph 13 of the counter
affidavit of the State that use of machines
creates a social problem of unemployment
which in turn leads to a law and order
problem. In paragraph 14 of the counter
affidavit
the
incident
relating
to
destruction of machines has been referred
to. Although there may be different
versions about the incident but the
occurrence reported in the newspaper has
not been denied. The shape which the
agitation took takes time to ferment. It
appears that timely intervention of the
district administration stopping the use of
machines and response to the grievances
of the people could have averted the
incident referred to in the Newspaper. The
sentiment of the people in the situation of
this case may be expressed in the
following words:

For ages has the Yamuna brought
From Mountains high the golden sands
And we did make a living bare
From the bounty strewn on the submerged
lands
But now the minerals have been leased
To people who have better means
They use machines to suck the stream
And employment for us a wishful dream
While they get richer day by day
Our right to live has been snatched away
Oh injustice and thine serpent 'hisss'!
We wont bear thee but strike against this!
2 All] Awadhesh Singh V. State of U.P. and others
483
And it is stated in paragraph 26 of
the writ petition a fact not denied in the
counter affidavit that on 27.2.2008
thousands of persons of the Nishad
community marched in procession against
the use of loader machines and damaged
and burnt them. We part by saying that an
indifferent attitude of the administration
to peoples grievances can result in people
taking law into their own hands for
securing justice.

21. In view of the aforesaid
discussion we are of the opinion that the
Writ Petition lacks merits and is liable to
be dismissed. We do so accordingly.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.04.2008

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Application No. 6278 of
2008

Awadhesh Singh

...Applicant
Versus
State of U.P. and others...Opposite parties

Counsel for the Applicant:
Sri Jitendra Prasad Mishra

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure Section 156
(3)-Rejection of application for lodging
FIR-on
the
ground-the
basis
of
information given by the eyewitnessinvestigation going on-No second F.I.R.
for same occurrences can be lodgedheld-second FIR is not barred-but the
order passed by Magistrate require no
interference.

Held: Para 7
Therefore, having regard to the facts and
circumstances of this case, the learned
Chief Judicial Magistrate, Banda had not
committed any illegality in rejecting the
application under Section 156(3) Cr.P.C.
moved by the application Awadhesh
Singh for lodging second F.I.R. regarding
the murder of his brother Kamlesh Singh
against the opposite parties no. 2 to 5.
Although, as held by this Court in the
case of Vipin Chaudhary and others Vs.
State of U.P. and others 2005 (51) ACC
533, second F.I.R. regarding the same
incident is not barred, but for the
reasons
mentioned
herein-above,
in
instant case, second F.I.R. cannot be
permitted to be lodged, as the first F.I.R.
of case crime no. 206/2007 was lodged
by the eyewitnesses of the incident of
murder of deceased Kamlesh Singh. The
law laid down by Hon'ble Apex Court in
the case of Vikram Singh and others Vs.
State of Maharashtra (supra) is not
helpful in instant case for the reasons
mentioned above.
Case law discussed:
(2008) 1 Supreme Court Cases (Cri) 362, 2005
(51) ACC 533, (2008) 1 SCC (Cri) 440

(Delivered by Hon'ble Vijay Kumar Verma, J.)

Heard Sri Jitendra Prasad Mishra,
learned counsel for the applicant and
learned A.G.A. for the State and perused
the record.

2. By means of this application
under Section 482 of the Code of
Criminal Procedure (in short, the Cr.P.C.),
order dated 10.03.2008 passed by the
C.J.M., Banda on the application of the
applicant under Section 156(3) Cr.P.C.
has been challenged.

3. By the impugned order, the
application moved by the applicant under
Section 156(3) Cr.P.C. has been rejected.