# Suresh Dwivedi & another v. The District Magistrate, Hamirpur and another

- **Citation:** (2007) 2 ILRA 388
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-05-21
- **Case number:** Civil Misc. Writ Petition No.35617 of 2002
- **Bench:** R.P. Misra, Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-dwivedi-another-v-the-district-magistrate-hamirpur-and-another-40920
- **Pages:** 5

## Headnote

Development Amendment Act, 1979Rule-4
(1-A)-Liability
of
royaltypetitioners doing business of purchase
and sale of morrum, gitt in their different
business premises-purchase of morrum
from open market from various leased
permit holder-whether liable to pay
royalty? Held-'No'.

Held: Para 17

From the record it is clear that no rules
were framed till the notice to the
petitioners have been given, therefore,
we are of the view that notice given by
the respondents to the petitioners itself
is bad in law and no action under Section
21 of the Act for contravention of Section
4(1-A) can be initiated against the
petitioners.
Case law discussed:
AIR 1987 M.P.-74
AIR 1995 SC-858
2004 (2) SCC-783

## Text

388 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
with a rider that in case of any doubt or in
absence of any valid age proof document,
persons concerned will be directed to go
for ossification being the valid scientific
test to determine the age and pass order
on such determination.

23. With the above view, the
reference is formally treated to be
disposed of. The matter is directed to be
sent back to the appropriate Division
Bench
for
the
purpose
of
final
adjudication.
 Reference decided.
---------
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.35617 of 2002

Suresh Dwivedi & another ...Petitioners
Versus
The District Magistrate, Hamirpur and
another

...Respondents

Counsel for the Petitioners:
Sri Mukesh Prasad

Counsel for the Respondents:
Sri Vishnu Pratap
S.C.

Mines and Minerals (Regulation and
Development Amendment Act, 1979Rule-4
(1-A)-Liability
of
royaltypetitioners doing business of purchase
and sale of morrum, gitt in their different
business premises-purchase of morrum
from open market from various leased
permit holder-whether liable to pay
royalty? Held-'No'.

Held: Para 17

From the record it is clear that no rules
were framed till the notice to the
petitioners have been given, therefore,
we are of the view that notice given by
the respondents to the petitioners itself
is bad in law and no action under Section
21 of the Act for contravention of Section
4(1-A) can be initiated against the
petitioners.
Case law discussed:
AIR 1987 M.P.-74
AIR 1995 SC-858
2004 (2) SCC-783

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

1. By means of the present writ
petition the petitioners have approached
this Court for quashing the impugned
notices dated 6.4.2002 and 22.2.2002
(Annexures 1 and 2 to the writ petition).

2. The petitioners who are traders of
sand/ morrum and gitti having their
business premises on different plots in
village Shitalpur and Kalauli in District
Hamirpur. The petitioners purchase the
minerals from open market and also from
various lease/permit holders from storing
and transporting for sale to various
customers to take the aforesaid minerals
for private consumption/use.

3. Notices dated 6.4.2002 and
22.2.2002 were received from the mines
officer by which the petitioners were
directed to clarify the position regarding
the genuineness of the stock of morrum.
According to the aforesaid notice, under
Section 4 (1-A) no person can stock or
transport minerals without permission,
otherwise action be taken under Section
21 of the Act. Section 4 of the Act under
the heading "Prospecting or mining
operations to be under license or lease"
has been amended by the Mines and
Minerals (Regulation and Development)
2 All] Suresh Dwivedi and another V. The D.M., Hamirpur and another
389
Amendment Act, 1999 and a new of
Section 4 (1-A) of the Act has been
inserted. Section 4(1-A) is being quoted
below:-

"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."

4. The aforesaid section is an
enabling provision and it enables the
Central Government to make rules in
exercise of powers under Section 13 and
the State Government has been conferred
power under Section 15 of the Act. It is
not in dispute that till date no rules have
been framed under the Act or the 1963
Rules either by the Central Government,
in exercise of powers under Section 13 or
13-A of the Act, or by the State
Government in exercise of powers under
Section 15 of the Act, which prohibits the
storing and selling of minerals by
wholesale and retail dealers, who are not
lease/permit holders and who are carrying
on their business outside the mining areas.
There is no provision in the Act nor under
Rules which prohibits the storing of minor
minerals outside any mining area for
being sold by retail or wholesale by any
person who is not a lease or permit
holder. The intention of the legislature
while amending Section 4 and inserting
Section 4 (1-A) 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 payment of
royalty. If the legislature was to apply
amended section to all the minerals then
the entire construction work and repair
work even by the private persons will
come to a standstill because even they
cannot transport or store sand even for the
construction purposes of their houses,
since they will be liable for prosecution
under the amended section 21(1) of the
Act. Section 21(1) is being reproduced
below:-

"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
fine which may extend to twenty-five
thousand rupees, or with both."

5. In case, the amended section are
applied even without framing any relevant
rules, then a person cannot have a
possession even a bagful of sand and will
be liable for prosecution under Section 21
of the Act.

6. Rule 70 of the U.P. Minor
Minerals (Concession) Rules 1963 is the
only
provision
in
respect
of
Transportation of Minerals. Rule 70 is
being reproduced below:-

"70. Restriction of transport of
minerals.-

1.
The holder of mining lease or permit
or a person authorised by him in this
behalf may issue a pass in Form MM-11
to every person carrying a consignment of
minor mineral by a vehicle, animal or any
other mode of transport. The State
Government may, through the District
Officer, make arrangements for the supply
of printed MM-11 Form books on
payment basis.

2. No person shall carry, within the
State, a minor mineral by a vehicle,
390 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
animal or any other mode of transport,
excepting railway, without carrying a
pass in Form MM-11 issued by sub-rule
91).

3. Every person carrying any minor
mineral 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
of the pass with reference to quantity of
the minor mineral.

4. The State Government may establish
a check post for any area included in any
mining lease or permit, and when a check
post is so established public notice shall
be given of this fact by publication in the
Gazettee and in such other manner as
may be considered suitable by the State
Government.

5. No person shall transport a minor
mineral for which these rules apply from
such area without first presenting the
mineral at the check post established for
that area, for verification of the weight or
measurement of the mineral.

6. Any
person
found
to
have
contravened any provision of this rule
shall, on convictions be punishable with
imprisonment of either description for a
term which may extend of six months or
with fine which may extend to one
thousand rupees or with both."

7. From the perusal of the aforesaid
rule, it is clear that lease or permit holders
will issue a pass in Form MM-11 to every
person carrying a consignment of minor
minerals by a vehicle, animal or any other
mode
of
transport. Admittedly, the
business premises of the petitioners are
outside the mining areas, as such, no
Form MM-11 is required for trading in
minor minerals and there cannot be any
restriction for the same. Form MM-11 is
issued by the lease/permit holder as proof
of payment of royalty. There is no
provision under the Act and rules under
which any permission is required for
storing any minerals. The amended
section is an enabling provision and it
enables the Central Government to make
rules in exercise of powers under Section
13 and the State Government under
Section 15 of the Act, but till date, no
rules have been framed under the Act or
under 1963 Rules either by the Central
Government or by the State Government.
There is no enabling provision under 1963
Rules, which prohibits the storing or
transporting the minor minerals outside
any mining area for being sold by retail or
wholesale by any person who is not a
lease or permit holder.

8. In view of the aforesaid fact, the
learned counsel for the petitioners submits
that the notice itself is bad and is liable to
be quashed.

9. Further submission has been
made that the Form MM-11 is issued for
transportation of minerals. It is not for the
purposes of storage of minerals. Rules 57,
58 and 59 of the U.P. Minor Minerals
(Concession)
Rules,
1963
are
not
applicable in the case of the petitioners.
Rule 57 provides regarding penalty for
unauthorised mining. Rule 58 is regarding
non-payment of royalty, rent or other dues
and Rule 59 is regarding consequences of
contravention
of
certain
conditions
mentioning thereby that if a lease holder
itself
commits
any
breach of
any
conditions, provided in Rules 44 and 46
2 All] Suresh Dwivedi and another V. The D.M., Hamirpur and another
391
shall on conviction be punished with
imprisonment or fine. Admittedly, the
petitioners are not the mining lease
holders. They purchased the minerals and
store it and sell it and there is no
restriction to this effect.

10. The reliance has been placed
upon a judgement in M.P. Contractors
Sangh, Indore and others Vs. State of
M.P. and others reported in AIR 1987
Madhya Pradesh 74, State of Tamil Nadu
Vs. M.P.P.Kavery Chetty reported in AIR
1995
Supreme
Court
858
and
in
Karnataka Rare Earth and another Vs.
Senior Geologist, Department of Mines
& Geology and another reported in
2004(2) Supreme Court Cases 783.
Further reliance has been placed in
Sharma & Co. and others Vs. The State
of U.P. and another reported in AIR
1975 Allahabad 386. The learned counsel
for the petitioners in support of the
aforesaid decisions stated that royalty
cannot be recovered in the facts and
circumstances of the case. It imposes a
liability only on holders of mining lease
granted under the Rules to pay royalty in
respect of minerals recovered at the rate
for the time being specified. As the
petitioners are not holder of mining lease,
no royalty can be charged from the
petitioners.

11. A counter affidavit has been
filed on behalf of the respondents. It has
been
submitted
on
behalf
of
the
respondents that in view of Section 4(1A) no person has a right of keeping stock
or can transport without permission and if
he violates he is liable for punishment as
provided under Section 21 of the Act of
1957. As the petitioners has not produced
any document neither has produced Form
MM-11, therefore, they are liable for
punishment for keeping unauthorisedly
the stock of minerals. As the petitioners
are keeping stock of minerals without
payment of any royalty to the State and
due to the aforesaid act, there is a loss of
the Government, therefore, notices dated
6.4.2002 and 22.2.2002 have been issued
to petitioners for payment of an amount.
Further it has been submitted that
petitioners have an alternative remedy by
way of filing an appeal under Rule 77 of
the Act. The writ petition is liable to be
dismissed.

12. We have heard Sri Mukesh
Prasad, learned counsel for the petitioners
and Sri Vishnu Pratap learned Standing
Counsel for the respondents.

13. Rule 4(1-A) of the Minor
Minerals (Regulation and Development)
Act 1957 provides that 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. Rule 70 of the U.P. Minor
Minerals (Concession), Rules, 1963 also
put a restriction of transport of minerals
which restricts that no person shall carry
within the State a minor minerals without
carrying a pass in Form MM-11. The
submission of the learned counsel for the
petitioners are that Section 4 (1-A) has
been inserted by an amendment in 1999
provides that no person shall transport or
store the mineral otherwise in accordance
with the provisions of this Act. It has been
submitted by the petitioners that the
aforesaid amended rule is an 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 a lease or permit
392 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
holder. It is not disputed that no rules
have been framed till date of notice issued
to
the
petitioners.
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, then it will be treated to be vague
and arbitrary.

14. From the perusal of the aforesaid
Act of 1957 Rules of 1963, no rules have
been framed either by the Central
Government or by the State Government.

15. Admittedly, now the legislature
only to prevent the illegal transportation,
mining and possession of minerals have
notified a Rule namely Uttar Pradesh
(Prevention
of
Illegal
Mining
Transportation and Storage) Rules 2002
but the nature of the aforesaid rules are
prospective
in
nature
it
is
not
retrospective.

16.

Now
the
question
for
consideration by this Court is whether the
person involved in selling the minerals
after purchasing it from the lease holder
and stores in his godown for selling to the
customers, whether it can be called an Act
in view of the provision of Section 4 (1A) of 1957 Act or in view of the provision
of Rule 70 of 1963 Rules because it
clearly says that Form MM-11 is
necessary and the minerals cannot be sent
outside the mining area unless and until
royalty is paid and the requirement given
in Form MM-11 is complete. It clearly
indicates that immediately when the
mineral is excavated and it is shifted to
other place royalty has to be paid. The
Government has fixed the rate of royalty
which is to be both before the goods are
taken out by the lease holder from the
quarries
and
the
person
who
has
purchased subsequently in terms of sale
either from the lease holder or from any
person then it will not be possible for the
person like petitioners to have any
document regarding payment of royalty.
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 the
articles.

17. From the record it is clear that
no rules were framed till the notice to the
petitioners have been given, therefore, we
are of the view that notice given by the
respondents to the petitioners itself is bad
in law and no action under Section 21 of
the Act for contravention of Section 4(1A) can be initiated against the petitioners.

18. In view of the aforesaid fact, the
writ petition is allowed and the impugned
notices dated 6.4.2002 and 22.2.2002
(Annexures 1 and 2 to the writ petition)
are hereby quashed.

No order as to costs.
Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2006

BEFORE
THE HON'BLE V.M.SAHAI, J.
THE HON'BLE SANJAY MISRA, J.

First Appeal From Order No.1226 of 2000s

Smt. Pratima Srivastava and another

...Appellants
Versus
Debi Prasad @ Beni Prasad and others

...Respondents