# Satya Deo Dikshit & another v. The State of U.P. & others

- **Citation:** (2007) 2 ILRA 579
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-05-21
- **Case number:** Civil Misc. Writ Petition No. 39234 of 2002
- **Bench:** R.P. Misra, Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satya-deo-dikshit-another-v-the-state-of-u-p-others-40962
- **Pages:** 8

## Headnote

S.C.

Uttar Pradesh Minerals (Prevention of
Illegal
Mining
Transportation
and
Storage) Rules 2002-Rule 11-petitioner
being traders of sand/morrum-stored for
purpose of selling to customers-prior to
the existence of Rule-whether liable to
pay any Royalty? Held-'No'-in rule no
such prohibition regarding disposal of
sand/morrum after the enforcement of
Rule.

Held: Para 15

In view of the aforesaid fact and
circumstances of the present case, we
are of the view that the minerals stored
by the petitioners prior to second of
September 2002 for the purposes of
selling it to customers will not be a n
offence or they are not liable to pay any
royalty.
Case law discussed:
AIR 1987 M.P. 74

## Text

2 All] Satya Deo Dikshit and another V. The State of U.P. and others
579

17. In view of forgoing discussions
it is held that the order dated 30.11.2006
passed by the Tribunal dismissing the
appeal of the petitioner filed against the
order
of
the
Recovery
Officer
is
appealable under Section 20 of the Act.
The petitioner having statutory remedy of
filing an appeal against the order dated
30.11.2006 the writ petition cannot be
entertained and is thus dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.05.2007

BEFORE
THE HON'BLE R.P. MISRA, J.
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 39234 of 2002

Satya Deo Dikshit & another ...Petitioners
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioners:
Sri V.B. Upadhyay
Sri M. Prasad

Counsel for the Respondents:
S.C.

Uttar Pradesh Minerals (Prevention of
Illegal
Mining
Transportation
and
Storage) Rules 2002-Rule 11-petitioner
being traders of sand/morrum-stored for
purpose of selling to customers-prior to
the existence of Rule-whether liable to
pay any Royalty? Held-'No'-in rule no
such prohibition regarding disposal of
sand/morrum after the enforcement of
Rule.

Held: Para 15

In view of the aforesaid fact and
circumstances of the present case, we
are of the view that the minerals stored
by the petitioners prior to second of
September 2002 for the purposes of
selling it to customers will not be a n
offence or they are not liable to pay any
royalty.
Case law discussed:
AIR 1987 M.P. 74

(Delivered by Hon'ble R.P. Misra, J.)

1. The present writ petition has been
filed in the nature of mandamus declaring
the Uttar Pradesh Minerals (Prevention of
Illegal
Mining
Transportation
and
Storage) Rules, 2002, as prospective in its
operation. Further a writ in the nature of
mandamus directing the respondents not
to interfere in the storage, selling and
transporting of morrum, stored by the
petitioners prior to coming into force of
new Rules.

2. The brief facts of the case are that
the petitioners are traders of sand/morrum
and gitti. Petitioner No.1 stored minor
minerals on plots No.105 and 106 in
village Badanpur, Tehsil and District
Hamirpur for the purposes of selling it in
the open market. Petitioner No.2 has
stored minerals on plots Nos. 76 and 77
belonging to one Sri Kamesh Chaurasiya
in village Shitalpur, plots Nos. 78 and 333
belonging to one Sri Laxmi Narain Singh
in Tehsil- Helapur and plot No.354/2
belonging to one Sri Ram Kishun in
village Kanauta in Tehsil & District
Hamirpur. The petitioners purchased the
above mentioned minerals from the open
market and also from various lease/permit
holders in the district Hamirpur and
Mahoba for selling to various customers
who take into for the purposes of private
consumption. The petitioners purchase the
said minerals from the lease holders and
transport it to the business places. On
22.2.2002, the petitioner No.1 received a
notice from the mines officer by which
580 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the petitioners were directed to clarify the
position of genuineness of the stock of
morrum. According to the notice under
Section 4(1-A) of the Act, no person can
stock or transport minerals without
permission, otherwise action will be taken
under Section 21 of the Act.

3. Since no rules were framed
regulating the storage of minor minerals,
petitioners filed a writ petition before this
Court and a Division Bench of this Court
passed the following orders:-

"Heard the learned counsel for the
parties.
It has been alleged in para 9 of the writ
petition that no rules have been framed
under section 4 (1-A) of the Mines and
Minerals (Regulation and Development)
Amendment Act, 1999 and hence there is
no ban to storage of sand.
In the circumstances, we direct that the
respondents shall not interfere with
petitioner's storage of sand unless some
rules have been made under Section 4(1A) of the Act prohibiting or regulating
such storage in which case those rules
have to be followed."

4. That subsequently on 23.8.2002,
further direction was issued to the
respondents not to interfere with the
transportation and selling morrum except
in accordance with law. Now the State
Government in purported exercise of
powers under Section 23-C of the Mines
and
Minerals
(Development
and
Regulation), 1957 (hereinafter referred to
as the Act), has framed the Uttar Pradesh
Minerals (Prevention of Illegal Mining
Transportation and Storage )Rules, 2002,
which has been published in the official
gazettee on 2.9.2002. After framing the
aforesaid rules, the respondent No.2 the
District Magistrate Hamirpur without
giving any show cause notice to the
petitioners had directed the mines officer,
Hamirpur not to permit the petitioners to
transport or sell the stock of minerals
stored by them, prior to coming into force
the new rules, since according to the
respondent No.2, the stock of minerals
stored by the petitioners have become
illegal in view of the provisions of Rule
11 of the new Rules, which provides for
obtaining a license prior to the storing of
any mineral. The petitioners have been
storing the minerals prior to the coming
into force the new rules and the new rules
does not provide for disposal of minerals
stored prior to coming into force of the
new rules, as such, the new rules are not
applicable on the stock of the minerals
already stored by the petitioners. Any
person who commits a breach of the new
rules and the provisions of Section 4(1-A)
of the Mines and Minerals (Regulation
and Development) Act, 1957, under
which the new rules have been framed,
shall be punished under Section 21 of the
Act with imprisonment for a term which
may extend for two years or with fine
which may extend to Rs.25,000/- or with
both . Section 4 (1-A) and Section 21 (1)
are being quoted below:-

"Section 4(1-A) - 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.

Section 21(1) - Whoever contravenes the
provisions of sub-section (1) or subsection (1-A) of Section 4 shall be
punished with imprisonment for a term
which may extend to two years, or with
2 All] Satya Deo Dikshit and another V. The State of U.P. and others
581
fine which may extend to twenty-five
thousand rupees, or with both."

5. Since storage of minerals without
obtaining
a
license
entails
penal
consonance under the provisions of the
Act and the rules framed thereunder, the
nature
of
new
rules
cannot
be
retrospective in operation and will not
apply on minerals already stored by the
petitioners, prior to the coming into force
of new rules that is on 2.9.2002. The
action of the respondents in preventing
the petitioners from disposing of stock of
morrum stored prior to the coming into
force of the new rules is wholly illegal,
arbitrary and without authority of law.
The intention of the legislature while
amending the aforesaid Section 4 was to
safeguard its royalty, which was being
evaded by the lease and permit holders by
storing minerals within the mining area
and removing them after expiry of mining
lease or permit, without any payment of
royalty.

6. The further submission has been
made
by
the
petitioners
that
the
respondent
No.2
District
Magistrate,
Hamirpur without giving any show cause
notice to the petitioners, has directed the
authority not to permit the petitioners to
transport or sell the stock of minor
minerals stored by them, prior to coming
into force of the new Rules. According to
the respondents the stock of minor
minerals stored by the petitioners is illegal
in view of the provisions of Rule 11 of the
new Rules, which provides for obtaining a
licence prior to storing of any mineral.
Moreover, the new rules does not brought
for disposal of minerals stored prior to
coming into force of new rules, therefore,
the new rules are not applicable on the
stock of the minerals already stored by the
petitioners. As the new rules, storage of
minerals without obtaining a licence
entails penal consequences, therefore, the
nature
of
new
rules
cannot
be
retrospective in operation. The intention
of the legislature while amending the
aforesaid Section 4 is for the purposes of
safeguarding its royalty which was being
evaded by the lease and permit holders by
storing minerals within the mining area.
The substantive law is only prospective in
its
operation
and
will
not
apply
retrospectively.
The
action
of
the
respondents are in clear violation of
principle of natural justice.

7. The writ petition was entertained
and by order dated 13.9.2002, the learned
Standing Counsel granted time to file
counter affidavit and the respondents
were
directed
not
to
interfere
in
transportation and sell of morrum by the
petitioners stored prior to coming into
force of the new rules.

8. The petitioners have placed
reliance upon a judgement in M.P.
Contractors Sangh, Indore and others
Vs. State of Madhya Pradesh and others
reported in AIR 1987, Madhya Pradesh
74. Taking support of the aforesaid
decision, the learned counsel for the
petitioners submits that admittedly, the
minor minerals removed from the quarries
is the property of the Government. There
is no dispute to this effect that minerals
excavated from the quarries cannot be
removed therefrom without payment of
royalty. It is the duty of the State
Government to protect its property and to
see that no theft of minor minerals is
committed nor such minor minerals are
removed therefrom without payment of
royalty. The Division Bench of the
Madhya Pradesh has held that in absence
582 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
of term in contract or rule framed
thereunder, the Government cannot insist
that contractor should produce royalty
paid receipts before his bills are cleared
for payment. It is the duty of the state
Government to engage adequate staff to
avoid thefts to minor minerals from the
quarries. Reliance has been placed upon
para 13 of the said judgement. The same
is being quoted below:-

"13. Admittedly the minor minerals
removed from the quarries is the property
of the Government. It is also not in
dispute
that
such
minor
minerals
excavated from the quarries cannot be
removed therefrom without payment of
royalty. The quarries also undisputedly
belong to the Government. Therefore, it is
the duty of the Government to protect its
property and see that no theft of minor
minerals is committed nor such minor
minerals are removed therefrom without
payment of royalty. It is the duty of the
State Government to keep adequate staff
at every quarry so that an effective
control and check could be put up and the
leakage could be avoided. We are
surprised at the argument advanced by
the learned Government Advocate that
because only one Chowkidar is posted at
the quarry to check the removal of the
minor minerals from the quarries and that
because at times he is not available on the
spot that such thefts are being committed.
Therefore, it is clear that the State
Government is aware of the fact and in
what circumstances minor minerals are
being
removed
without
payment
of
royalty. As a matter of fact the concerned
Department in order to have an effective
check should keep adequate staff and in
fact call upon the quarry holder to pay
royalty after the minor minerals are
excavated and before they are removed
from the place. But, in our opinion, this
cannot be a valid argument that because
the Government is not able to put up an
effective check or control, for which they
are alone responsible, the building
contractors should produce the royalty
paid receipts before their bills are cleared
for payment at least in those cases where
the minor minerals are supplied by such
contractors through petty contractors or
to her merchants. It is for the Government
to engage more staff and see that no such
thefts are committed, though it also
cannot be and was not disputed that it is
the duty of every citizen to help the
Government in its laudable efforts. But ,
in our opinion, merely because the
Government is not in a position to check
such thefts, a doubt cannot be cast on the
building contractors nor they could be
blamed for that. If the Government wants
to adopt such a measure so far as such
building contractors are concerned, then
the State Government ought to make such
a provision in the contract entered into
with such building contractors or they
should make rules to that effect under the
provisions of the said Act so that a
building contractor who is given such
Government contract will be duty bound
to obtain the royalty paid receipt and
submit the same or in such minor
minerals
from
the
quarry
holders
themselves directly. It is, therefore,
difficult to agree with the submission
made
by
the
learned
Government
Advocate that, vide Annexure R2 or
Annexures A and B the respondents have
taken administrative steps to implement
Annexure RI."

9. A counter affidavit has been filed
on behalf of the respondents. It has been
submitted that the petitioners are not able
to
produce
any
certificate
or
any
2 All] Satya Deo Dikshit and another V. The State of U.P. and others
583
document to this effect that from whom
this mineral has been purchased. Whether
the minerals which are stored by the
petitioners for the purposes of selling to
the customers is after payment of royalty
or not. Under the U.P. Minor Minerals
(Concession) Rules, 1963, according to
rule
70
there
is
a
restriction
of
transporting of minerals. The holder of
mining lease or permit or a person
authorised by him in this behalf may issue
a pass or Form MM-11 to every person
carrying a consignment of mineral by a
vehicle, animal or any other mode of
transport. Sub Clause 2 of Clause 70
clearly states that no person shall carry,
within the State, a minor mineral by a
vehicle, animal or any other mode of
transport, excepting railway, without
carrying a pass in Form MM-11 issued by
Sub Rule (1). It further provides that
every person carrying any minor minerals
shall,
on
demand
by
any
officer
authorised under Rule 66 or such officer
as may be authorised by the State
Government in this behalf, show the said
pass to such officer and allow him to
verify the correctness of the particulars
with reference to quantity of the minor
mineral. Further it provides that any
person found to have contravened any
provision of this rule is liable for
punishment.

10. The storage which has been done
by the petitioners is in contravention of
the provision of the Rules. The petitioners
have not disclosed any source that from
where they have purchased it, therefore,
there is a clear possibility that they are
selling the minerals without payment of
royalty. The petitioners without obtaining
any permission has stored the minerals
without payment of royalty which is not
permissible. As such, a notice was given
but the petitioners have not submitted any
reply to this effect specifying the reasons
what they are stating before this Court.
The petitioners were given notice under
Section 70 of the Rules and in case the
petitioners were aggrieved they should
have filed an appeal under Rule 77 of the
Rules. The petitioners have clearly
violated the provision of Uttar Pradesh
Minerals (Prevention of Illegal Mining
Transportation and Storage) Rules 2002.
If the stock which has been kept by the
petitioners is prior to 2.9.2002, the
liability of the petitioners is to specify the
authorities
regarding
the
stores
of
minerals that from whom they have
purchased. As the petitioners have not
submitted any document and has not
produced form MM-11 therefore, the
stock kept by the petitioners will be
treated to be unauthorised and they are
liable for payment of royalty. The
petitioners have also not submitted any
document to show that they have been
registered or have been permitted to stock
the minerals and they are registered
traders. The storing the minerals is
offence under Section 4 (1-A) of the Act.
The petitioners have not produced any
document to show that the storage of
minerals is prior to 2.9.2002. The
introduction of new rules of 2002 is not
only to safeguard its royalty which was
being evaded by lease and permit holders
by storing minerals within the mining
areas and removing them after expiry of
mining lease or permit without payment
of royalty. It has been introduced for that
purposes also to those persons who are
indulge in such business without any
permission from the State Government.

11. In view of the aforesaid fact, the
respondents submits that the petitioners
584 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
have got no case and the writ petition is
liable to be dismissed.

We have heard Sri Mukesh Prasad,
learned counsel for the petitioners and
learned Standing Counsel and have
perused the record.

12. From the record, it appears that
the petitioners are involved in purchase
and selling the minerals which are being
purchased by the petitioners from various
lease permit holders in the districts of
Hamirpur and Mahoba for selling it to the
various customers who take the minerals
for private consumption. It appears that in
spite of the restriction there was no check,
therefore, the State Government think it
proper to frame rules as Uttar Pradesh
Minerals (Prevention of Illegal Mining
Transportation and Storage) Rules 2002
which clearly provides that there will be a
restriction for transport, carry or cause to
be transported, carried any mineral by any
means from its raising place to any other
place without a valid transit pass issued
by the holder of mining lease or the
mining permit or prospecting license as
the case may be. Therefore it is clear that
after enforcement of the aforesaid rule,
which
was
published
in
gazettee
notification dated 2nd September, 2002
after the said date any person cannot
transport, carry or cause to be transported
minerals without obtaining any permit or
valid transit pass. But prior to that there
was a provision of Section 4 (1-A) of the
Mines and Minerals (Regulation and
Development) Act 1957, that no person
shall transport or store or cause to be
transported or stocked any mineral
otherwise than in accordance with the
provisions of this Act and the rules made
thereunder. Rule 70 of the U.P. Minor
Minerals (Concession) Rules, 1963 also
puts a restriction of transporting of
minerals which restricts that no person
shall carry, within the State, a minor
mineral without carrying a pass in Form
MM-11. The submission of the learned
counsel for the petitioners is that Section
4
(1-A)
of
the
Mines,
Minerals
(Regulation and Development) Act, 1957
has been inserted by Amendment Act
1999 provides that no person shall
transport or store or cause to be
transported or stocked any minerals
otherwise than in accordance with the
provisions of this Act and the rules made
thereunder. It was submitted by the
petitioners that Section 4 (1-A) is
enabling
provision
and
cannot
be
enforced unless rules are made making it
obligatory to obtain a license or permit to
store or cause to be transported or stored
any mineral by a person not being to lease
or permit holder. The contention of the
petitioners was that no such rules have
been framed under the Act either by the
Central Government or by the State
Government which prohibits the storing
and selling of the minerals by wholesale
or retail dealers who are not lessee or
permit holders and who are not carrying
on their business outside the mining areas.
The
expression
otherwise
than
in
accordance with the provisions of the Act
and rules made thereunder occurring in
Section 4 (1-A) of the Act is significant in
the sense that if both the Acts and Rules
are silent about the procedure for
transportation or storage etc. then Section
4 (1-A) of the Act may be challenged on
the ground of vagueness and arbitrariness.
From the perusal of the Act and Rules of
1957 and 1963, no rules have been framed
either by the Central Government or by
the State Government.
2 All] Satya Deo Dikshit and another V. The State of U.P. and others
585
13. Admittedly, the legislature has
framed rules which were notified in
September, 2002. Now the question is for
consideration by this Court is whether a
person involved in selling the minerals
after purchasing it from the lease holders
and stored it in his go-downs for selling it
to the customers whether it can be called
as an offence in view of the provision of
Section 4 (1-A) of Act, 1957 or in view of
the provision of Rule 70 of 1963 Rules,
because 63 rules clearly provides that
immediately after excavation of minerals
from the quarries, Form MM-11 is
necessary and it cannot be sent outside the
mining area unless and until the royalty is
paid and unless and until the requirement
given in Form MM-11 is complete. There
is also a criteria that two counter filed by
MM-11 form will be given to the person
in charge of consignment, one of which
will be removed by the Government
servant for checking the pass. It clearly
indicates that immediately when the
minerals is excavated and it is shifted to
other place the royalty has to be paid
because if a person who is like petitioner
in storing the minerals and selling it to the
customers they will get only a receipt of
purchase of the articles and they will not
be able to get any royalty receipt. As the
petitioners do not purchase these articles
or excavate in whose favour the auction is
knocked down by the government. As the
government has fixed the rate of royalty
which is to be paid before the goods are
taken out by the purchaser from the
quarries and the persons who purchase
these articles from the quarries in terms to
sale them to different persons. In this way
these goods were coming to the market
through several hands with the result that
obviously the subsequent purchaser do
not have and cannot have the royalty pay
receipt relating to these articles.
14. Admittedly, after September,
2002, after coming into force of the Uttar
Pradesh (Prevention of Illegal Mining
Transportation and Mining) 2002 there is
a requirement that no person will be
involved in transport, carrying or cause to
be transported any minerals without
obtaining any license and if they violates
the provisions of the aforesaid rules, they
are liable for punishment. Sub Clause 2 of
Clause 5 also provides that the holder of
license for storage of minerals shall issue
the transit pass in Form C for lawful
transportation of minerals from the
storage. The power has also been given in
the aforesaid rules for inspection and
seizure by him to the person from whose
possession or control, it is seized. A
procedure
to
this
effect
regarding
obtaining license has also been provided.
From the perusal of the aforesaid rules, it
is also clear that it will be effective from
the date of gazettee notification dated 2nd
September, 2002 not prior to that date.
Admittedly, the nature of the aforesaid
rules are not retrospective then whether
without framing any rules, whether the
respondents can charge royalty of storage
of minerals, cannot be sustained.

15. In view of the aforesaid fact and
circumstances of the present case, we are
of the view that the minerals stored by the
petitioners prior to second of September
2002 for the purposes of selling it to
customers will not be a n offence or they
are not liable to pay any royalty.

16. In view of the aforesaid fact, the
writ petition is allowed. The respondents
are
restrained
from
recovering
any
amount of the stock of minerals, stored by
the petitioners prior to 2nd of September,
2002. It is open to the respondents to
proceed according to the aforesaid rules in
586 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
case it is found that stock is subsequent to
2nd September, 2002.

No order as to costs.
Petition allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.01.2007

BEFORE
THE HON'BLE IMTIYAZ MURTAZA, J.
THE HON'BLE R.N. MISRA, J.

Criminal Misc. Contempt Petition No. 34 of
2005

Sri Pradeep Singh, Addl. Civil Judge
(S.D.), Allahabad

...Applicant
Versus.
Sri
Jyoti
Swaroop
Singh,
Advocate,
Allahabad.

...Respondent

Counsel for the Applicant:
A.G.A.

Counsel for the Respondent:
Sri B.K. Pandey
Sri Jyoti Swaroop Singh (In person)

Contempt of Court Act 1971-Section-12Criminal
Contempt-Contemnor
a
practicing
lawyer-being
annoyed
by
order passed under section 156 (3)
Cr.P.C.
treating
as
complaint
caseinstead of directing the S.O. concern to
register and investigate-intimidated the
court to get favorable order-lowering the
authority and interfering with due course
of justice-amounts to criminal contemptpunishment
for
one
month
simple
imprisonment
and
fine
Rs.5000/-
imposed.

Held: Para 16

The court cannot be intimidated to seek
favourable orders. This conduct amounts
to intimidating the court and lowering
the authority and to interfere with the
due course of judicial proceedings, which
were being conducted by the Presiding
Officer.
1991 (4) SCC-406
AIR 1988 SC-1395
1993 (1) SCC-529

(Delivered by Hon'ble R.N. Misra, J.)

1. Heard Sri Jyoti Swaroop Singh,
Advocate, (Contemnor) in person and
learned A.G.A. for the State at length and
perused the written argument filed by the
contemnor.

2. This reference for drawing
contempt proceeding against Sri Jyoti
Swaroop Singh, Advocate practicing in
District Courts, Allahabad had been
received on the report of Sri Pradip Singh,
Additional Civil Judge (Senior Division),
Allahabad, addressed to the Registrar
General of this Court and forwarded by
District
Judge,
Allahabad
vide
endorsement
No.
1514/XV
dated
24.9.2005. After receiving the letter of
officer concerned, the office of this Court
submitted a note dated 15.10.2005 for
initiating contempt proceeding against the
aforesaid contemnor and the above note
was endorsed by Hon'ble Administrative
Judge
concerned
on
26.10.2005
requesting Hon'ble the Chief Justice to
order
for
initiation
of
contempt
proceeding, who permitted so vide order
dated 27.10.2005 and consequently this
proceeding was initiated.

The letter of Sri Pradip Singh for
initiating contempt proceedings against
the contemnor reads as under:

From:
Pradip Singh
Addl.
Civil
Judge
(Senior
Division), Allahabad.