# Uma Stone Crushing Co. & others v. State of U.P. & others

- **Citation:** High Court of Judicature at Allahabad #39521
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uma-stone-crushing-co-others-v-state-of-u-p-others-39521
- **Pages:** 10

## Text

2ALL] Uma Stone Crushing Co. & others V State of U.P. & others 27
the opinion that upon merger, the Field
Supervisor got.
11. Moreover, changes in 1993 were
reflected in seniority list of 1993 and
petitioner admittedly did not challenge the
some before any court of low. Therefore,
when fresh seniority list was published in
1997, the petitioners can not be allowed to
challenge such seniority originally fixed in the
year 1993.
12. In view of aforesaid finding, we do not
find any irregularity in the matter of seniority
list complained against. The writ petition is
therefore dismissed.
Petition Dismissed.
---------

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By the Court

1. Undisputedly, policy decisions relating
to matters which involve betterment of the
polity and of the masses are within the
exclusive
jurisdiction
of
the
respective
Government, subject to judicial scrutiny if the
policy is challenged on the ground of
contravening fundamental rights or disturbing
the basis structure of the governance through
the Constitutional provisions, whether or not
the policy decision sought to be conveyed
through G.O. dated 16.3.1999 issued by the
State of U.P. conforms with the directive
principles and the fundamental rights of
citizens enumerated under the Constitution are
the two basis issued raised by the petitioners
in this bench of writ petitions. The Govt.
Order dated 16.3.99 which is under challenge,
has been issued by the State of U.P. in
exercise of power conferred by the provisions
of
the
Uttar
Pradesh
Minor
Minerals
(concession)
Rules,
1963
(in
short,
M.M.C.RULES) which have been framed in
pursuance of the provisions contained under
the Mines and Minerals (Regulation and
Development) Act, 1957.Section 15 of the
said Act authorises the State Government to
make Rules in respect of Minor and Minerals
vide Section 1-A.
28 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
Clause(E).

2. When the writ petition was filed the
arguments were advanced as a result of which
counter affidavit was called. In due course of
time the other petitions in the bunch came to
be filed and in some of them counter
affidavits were again called which have been
filed to which Rejoinder Affidavit have also
been filed.

3. As prayed by the learned counsel for
the parties this bunch of the writ petitions was
taken up on priority basis under the order of
the Chief Justice because practically whole
length and breadth of the State is covered by
the State Notification dated 16.3.1999 in so
far as the mode, method and procedure of
auctioning the mining rights with regard to
minor minerals is concerned.

4. Shri S.P. Singh, Shri Y.K. Saxena, Sri
C.L. Pandey, Shri Sanjay Kumar, Shri D.
Mukherjee, Shri Ramesh Upadhyaya, Shri
M.P. Yadav and several other counsels who
appeared on behalf of the petitioners. On
behalf of the Respondents Shri Vishnu Pratap
Standing Counsel has been heard. As jointly
requested all the petitions are being disposed
of finally at this stage under the Rules of the
Court.

5. Before adverting to the arguments
advanced relating to the validity of the
aforesaid Govt. Order a few provisions have
to be noted here in order to comprehend the
arguments
in
pith
and
substance
The
Parliament has brought the Minor and
Minerals (Regulation and Development) Act
1957, Act No.67 of 1957 with effect from 1st
June, 1958 in order that the Union should take
in its control the regulation of Mines and the
Development of Minerals to the extent
hereinafter provided (vide Section 2 thereof).
In so far as the Minor Minerals are concerned,
the Central Government has left the field open
for the State Government and Section 15
provides
that
State
Government

by
Notification in the Official Gazetter make rule
for regulating the grant of quarry leases and
Mining leases or other Mineral concession in
respect of Minor Minerals and for the
purposes connected therewith. State Rules
may provide for the procedure for obtaining
quarry leases, Mining leases or other mineral
concession and fixing of collection of rent
royalty fees, fine of other charges and the time
within which and the mining in which fees
shall be done and be payable (See 1-A sub
clause (e) and (g) respectively); Armed with
the aforesaid powers the State of U.P. came
out with a comprehensive set of rules known
as U.P. Minor and Minerals (concession)
Rules, 1963. (M.M.C. Rules) which make it
clear that those shall apply to all the Minor
Minerals available in the State vide sub-Rule
4 of Rule 1 of the M.M.C. Rules. By Rule 3
thereof it has been provided that no person
shall undertake any mining operations in any
area within the State, of any minor minerals to
which these rules are applicable except under
and in accordance with the terms and
conditions of mining leases or mining permit
granted under these rules;

6. Proviso provides that nothing shall
effect any mining operations undertaken in
accordance with the terms and condition of a
mining lease or permit duly granted before the
commencement of these rules. It further
provides that no mining lease or mining
permit shall be granted otherwise than in
accordance with the provisions of M.M.C.
Rules.

7.

For
the
purpose
of
effective
understanding in order to decide this bunch of
petition, it may be mentioned that the State of
U.P. through a Govt. Order dated 4.10.91
brought the entire area in the State under
Chapter IV of the M.M.C. Rules. It may be
pointed out that Chapter IV of the M.M.C.
Rules is captioned as "auction lease-17
amendment". It consists of provisions made in
Rules 23-30. Persons who were aggrieved
even by the aforesaid Government Order
2ALL] Uma Stone Crushing Co. & others V State of U.P. & others 29
dated 4.10.91 preferred several writ petitions
including the leading one being C.M. Writ
Petition No.28796 of 1991 M/s Bundelkhand
Minerals and Alkali Private Ltd. Vs. State of
U.P. and others. A Division Bench of this
Court considered all the phases of argument
and ultimately concluded that:-

8. "We have already held above that
against notice issued by the District Officers
amount to declaration under sub-Rule 1 of
Rule 23 of the Rules. We have also held that
the Government Order issued by the State
Government on November, 16, 1990 amounts
to declaration with regard to the entire area of
Minor minerals in the State of U.P. thus it
cannot be held that no declaration has been
made with regard to the two villages as
required by sub-rule 1 of Rule 23 and the
contention raised by the learned counsel for
the petitioner has no substance."

9. Then comes the G.O. dated 27.8.94
issued by the State Government declaring all
the areas which previously was covered
within rule 23 for the auction lease under
Chapter IV, to be covered thereafter by the
provisions contained in Chapter II. This
Chapter II of the M.M.C. Rules is captioned"
grant of mining lease". The said Govt. Order
dated 27th August, 1994 provides that District
Magistrate will be empowered to notify the
areas, call applications and grant lease to the
persons in accordance with the provisions
contained in the said Chapter II.

10. While issuing the aforesaid Govt.
Order dated 27.8.94, the State of U.P. came
out with procedural amendment in the
provisions contained in the entire M.M.C.
Rules wherever necessary in order to give
effect to its policy decision which may have
been formulated then. mention should be
made to new additional provisions brought
about after 20th amendment in the M.M.C.
Rules. Rules 9-A was added, Rule 23 was
amended and Rule 27-A and 27-B were
added, and likewise Rule 53-A was added in
Chapter IV of the M.M.C. Rules which is
captioned as 'Mining Permit'.

The State amendment, whether brought by
17th amendment or 20 amendment ensured
that: -

11. Whenever matter was to be dealt with
in Chapter II and the area in question called
for the applicability of the provisions in Rule
9 and 9-A or Rule 53 or 53-A of Chapter-6,
adherence shall be made to the provisions
contained in 9-A and 53-A of the Rules.

12. The declaration of an area deemed to
be covered thereafter under Chapter IV was
no more required to be published by
Notification in the Official Gazette, because
the State Government was, by the amendment
Rule 23 of M.M.C. Rules, empowered to issue
general or special order declaring the area of
areas which may be leased out by auction or
by tender or by auction-cum-tender.

13. The preferential rights conferred by
Rule 9-A was applicable to mining lease for
sand or morrum or Bajri or boulder or any of
these in mixed state exclusively found in the
river bed.

14. Rule 9-A further provides that the
preferential rights to persons "belonging to
socially and educationally backward and
citizens engaged in carrying on occupation of
excavation of sand or morrum as a provision
and/or residents of the same District in which
the lease is applied for, or have established or
intended to establish a minor mineral based
industry in the State" shall be followed and
the "explanation" mentioned some castes also.
Rule 10 provides that no person shall acquired
in respect of any minor minerals one or more
mining leases exceeding total at a of 30 acres.
But simultaneously it reserved the right of
State Government that in the interest of
mineral Development, it is necessary so to do
so, it may for reasons to be recorded, permit
any person to be allotted one or more mining
30 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
leases covering an area in excess of the
aforesaid maximum of 30 acres. Moreover
under Rule 68 of the M.M.C. Rules the State
Government may if it is of the opinion that in
excess of mining development it is necessary
so to do, by order in writing and for reasons to
be recorded authorises in any case the grant of
any mining lease or working of any mining
for the purposes of winning in mineral on
terms and conditions different from those laid
down in this rules." Chapter VI which is
captioned as "Mining Permit" contains the
provision in Rule 51 that no permit shall be
granted to a person who is not an Indian
National or for a period more than 5 months.
As stated above the newly added rule 53-A as
brought out by 20th amendment permitted
preference to be given in accordance with the
provisions contained in Rule 9-A and has laid
down that the explanation of Rule 9-A shall
apply for the purpose of granting permit under
Rule 53-A.

15. It would be relevant to note here that
even when Chapter IV i.e. the Chapter dealing
with "auction lease" is applied, a clear cut
distinction has been made under the M.M.C.
Rules with regard to river-bed-mineraldeposits. In this connection sub-rule 2 of Rule
23 should be mentioned here with provides
that subject to the direction issued by the State
Government from time to time in this behalf
no area or areas shall be leased out by auction
or by tender or by auction-cum-tender for
more than 5 years at a time provided that
period in respect of In Situ rock type mineral
deposit shall be 5 years and in respect of river
bed minerals deposit shall be one year at a
time.

(Emphasis by Court).

16. It is permissible for the State
Government
to
make
a
declaration
withdrawing any area or areas declared under
sub-rule 1 of Rule 23 and in that event, the
provisions of Chapter II, III and VI of these
rules shall be applicable to said area of areas.

(Emphasis by Court)

Likewise sub-rule 3 of Rule 23 says that on
the declaration of the area or areas under subrule 1, the provisions of Chapter II, III and VI
of these rules would not apply to the area of
areas in respect of which the declaration has
been issued and that-
"SUCH AREA OR AREAS MAY BE
LEASEDOUT
ACCORDING
TO
THE
PROCEDURE PRESCRIBED IN THIS
CHAPTER.

(Emphasis by Court)

17.

Having
noticed
the
aforesaid
provisions, the effect of Govt. Order dated
16.3.99 may now be examined. The subject of
this G.O. translated in English would read as
under: -

"Subject - In accordance with U.P.
Mineral Policy 1998 applying an auction lease
method granting lease of minor minerals in
the areas concerned."

18. The contents of G.O. start by
excluding limestone granite, morrum stone
and clay for making bricks and applies
Chapter IV to the entire area wherever minor
minerals are found in the State of U.P. except
the exceptions indicated above.

19. Before proceeding it should be noted
that the said G.O. was not to apply as per the
proviso in clause II of para 2, to the rivers
which were coming out of Forests areas and
made some exception to those areas. Clause 4
and 5 of paragraph 2 of the said G.O.
translated into English would read as under: -

(4) Rule 23(2) of Rules 1963 provides that
subject to directions of the State Govt. no area
under
auction/auction-cum-tender
system
shall be leased out for more than five years
and it has also been clarified in the proviso of
the same rule that, at a time lease period for in
situ rock type mineral deposit shall be five
years and in respect of river bed mineral the
period of lease shall be one year. Therefore
2ALL] Uma Stone Crushing Co. & others V State of U.P. & others 31
while making declaration for granting lease
under the auction/auction-cum-tender system
the insertion of the above mentioned proposed
period should be taken care of.

(5) Such area's on which already leases or
permits
are
granted shall continue till
expiration of their period but as soon as the
period of lease/permit expires, declaration
shall be issued under rule 23(1) of Rule 1963
for granting lease under auction/auction-cumtender system and the period of the lease shall
be fixed so far as it is possible, so that the
lease in respect of river bed minerals to expire
in the month of September, and for in situ
rock type mineral to expire according to
financial year."

20. Before proceeding further it may be
noted here that Clause 6 of paragraph 2
specifically provided that new areas or vacant
areas may be declared forthwith for settlement
of lease in accordance with the provisions of
Chapter IV. Likewise, Clause 9 of para 2
provides that 15% enhanced rent/royalty
should be ensured while making settlement.
Rest of the Clause 2 of paragraph 2 of
remaining paragraph and the said G.O. are not
relevant for the purpose of present discussion.

21. Learned counsel for the petitioner
objected to the aforesaid G.O. on three
grounds. First, the G.O. is ineffective as no
where does it refer to having been issued by
Secretary and shall not have the force of law.
In this connection provision of Article 166 of
Constitution of India read with the provision
of Chapter IV were read out, along with
reference of two decided case of the Hon'ble
Supreme Court. Second, by present policy
decision declared through the aforesaid G.O.
the State Government was not authorised to
interchange chapter II to Chapter IV and in
this connection it was emphasised that
because of the absence of objects and reasons,
and unless special reasons were disclosed as
provided in Rule 68, it was not permissible for
the State Government to issue the aforesaid
Government Order. The third criticism is that
the
aforesaid
Govt.
Order
contravenes
provisions of Article 37, 38 and 39 of the
Constitution of India read with Article 14 and
19 thereof particularly because the changes
brought out by Rules 9-A and 52-A are not
perhaps going to be adhered to by the
Government in view of this G.O. and
therefore it should be struck off.

22. During the course of argument Shri
Vishnu Pratap was afforded opportunity to
produce the record in order that first argument
of the learned counsel for the petitioner may
be met if possible. There is no denial of the
fact that the G.O. itself does not show that it is
issued in the name of the Governor whereas
Article 166 of the Constitution of India
provides that all Executive matters of the
Govt. of a state shall be expressed to be taken
in the name of Governor.

23. Shri Vishnu Pratap produced three
records. From the first record it appears that
the Chief Minister of U.P. passed an order for
keeping the consideration of the Industrial
policy as item of agenda in the Cabinet
meeting. The second record shows that the
policy decision was formulated as per
paragraph 6 of the recommendation of the
Secretariat. The Mineral policy 98 has been
published in the Form of book-let, copy of
which has been furnished to the Court which
will form part of the record. The third record
shows
that
principal
Secretary
of
the
Industrial Department has issued directions
along with copy of the cabinet decision taken
on the 1st December, 1998 and that letter of
the Joint Secretary (Cabinet) was issued on
behalf of the Chief Secretary which is dated
4th December, 1998. As to the examining the
controversy
whether
the
Constitutional
guidelines have been followed, by the court
making judicial scrutiny of the policy decision
challenged through these writ petitions, Shri
Vishnu Pratap relied upon the said three
records and then adverted to three rules
namely 1. U.P. Rules of Business 1975.
32 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

24. U.P. Business (Allocation) Rules,
1975. 3. U.P. Abhipramanikaran (Adesh
Abhilikhit Niyamawali) 1975, he also placed
reliance upon two decisions of the Supreme
Court in R. Chitralekha 1964 Supreme Court
page 1823 and also A. Sanjeev Naidu reported
in AIR 1970 Supreme Court Vol. I Supreme
Court page 443.

25. It was specifically pointed out by the
learned counsel for the petitioner that the
govt. Order was issued under the signature of
the Secretary and therefore at best it could be
said as emanating from the Secretary alone.
Apparently the order should have stated that it
was being issued in the name of the Governor
which is not existing in the order but in view
of the record produced by the Standing
Counsel
there
can
possible
no
doubt
whatsoever that G.O. has been issued after
Government decision has been taken on the
policy matter endorsing what is known as
Minerals Policy 1998.

26. It should be stated here that the
provisions contained in Sub-Article 1 of
Article 166 of the Constitution need not be
held mandatory from the point of view of the
publication of the notice or order in case it is
found that the record duly validates the
issuance of the order. The net result of the
discussion is that the first challenge to the
order fails and it is hereby held that G.O.
dated 16.3.99 is a validly issued G.O.

27. Coming now to the question as to
whether objects and reasons behind the policy
decision has been disclosed or not, it is
apparent that G.O. itself refers under the
heading "subject" to the policy decision
which was taken by the Government and
endorsed by the Cabinet in the meeting held
on 1st December, 1998, stood communicated
under the letter of the 4th December, 98 shown
from the three record produced by Vishnu
Pratap Standing Counsel. The copy of the
mineral policy 1998 has already been filed in
the court and is now a part of the record.
Therefore, there is full application of mind
and
objects
and
reasons
are
already
formulated and delineated in the mineral
policy 1998 therefore second argument also is
without any basis and is hereby rejected.

28. The State Government has, with
regard to entire mineral available in the State
a new policy shown in the booklet as Mineral
Policy 1998. The third argument is a mixed
question of fact and law and has to be
addressed as such. The policy applies to
minor mineral in river bed, for which several
provisions exist in M.M.C. Rules which have
been in vogue and are already saved by
paragraph 5 of the aforesaid Government
Order. The point to be reconsideration is that
the limited type and amount of minor mineral
found by the river bed was already included in
the earlier policy decisions and can it be said
that the present policy makes a departure or
deviates from the same?. Before discussion
further it should be at once stated here that by
and large mineral can be classified into two
heads, major and minor minerals. Again,
minor Minerals may be classified into further
several heads few of which will be "sand, or
morrum or Bajri or boulder or any of these in
mixed state exclusively found in the river
bed." One may see the special provisions of
these types of minor minerals formulated
under Rule 9-A and also see the proviso to
sub-rule 2 of Rule 23 of the M.M.C. Rules.

29. The most crucial aspect of the case
now emerges -what is the distinction between
Chapter II and Chapter IV ?. How is the
resent policy decision going to adversely
affect the special provisions enacted in 9-A of
the Rules which remain in the statute book.
What is going to be the effect of the G.O. with
regard to minor minerals found in the river
bed ?. How and in what manner the
declaration under Rule 23 does away with the
policy or need and necessity with regard to
the minor mineral and also the reserved
2ALL] Uma Stone Crushing Co. & others V State of U.P. & others 33
classes of persons recovered by the provisions
of Rule 9-A ?.

30. As noted above, through Rules 3 and 4
in Chapter II and Rules 23 and 24 in Chapter
IV the mining leases are brought about. In fact
the M.M.C. rules authorises the State
Government to part with the mining rights to
some person or firm or company only by two
major modes-1. Lease 2. Licence. Chapter VI
is a temporary measure for a permit for a very
short period which will never extended
beyond 6 months. Chapter VI which has been
considered while dealing with the provisions
regarding permits, allows applicability of the
principle behind 9-A. Whenever an area is
made available under Chapter II the District
Magistrate issues notice calling applications
when application are filed they have to be
dealt with in accordance with the provisions
contained in Chapter II, but ultimately it is
only "lease" which is going to be granted to
the person who applied in response to the
District Magistrate notice. Likewise, the
District Magistrate calls for tender or notifies
area or areas for tender auction or auctioncum-tender as the case may be, whenever the
District Magistrate has no settle the "lease of
the mining are in accordance with the
provisions of Chapter IV of the M.M.C.
Rules. Again, the District Magistrate, while
granting lease whether under Chapter II or
Chapter VI acts for the State Government and
on its behalf the lease deed is executed in
favour of the person found entitled to the
lease as compared to another applicant.

31. The Government policy 1998 as noted
above makes a long discussion of what the
State Government proposed to do regarding
mining industry. It says:-

1. To expedite investigation of new mineral
deposits for development by adopting modern
exploration techniques.

8. To ensure economic prosperity in the
distant and backward areas of the State
through mineral development.

11. To help the people traditionally engaged in
mining works with a view to encourage social
justice
and
increase
in
employment
opportunity in mineral sector.

12. To provide for safety and welfare of the
people engaged in mining activities.

In the said booklet, the following proposals
also exist:

SOCIAL
JUSTICE,
SAFETY
&
WELFARE:

32. For remote and backward areas of the
State, where mining is the main activity,
thrust will be given in the Policy to involve
local people, especially of socially and
economically backward community. Safety
and welfare of workers engaged in mining
activity will be constantly monitored.
33. For persons of Mallah community,
who are traditionally engaged in the mining of
sand and merrum, welfare schemes will be
initiated , such as training centre, school,
dispensary etc. whose expenses would be met
from the Khanij Vikas Nidhi. For considering
these
proposals
a
committee
will
be
constituted under the chairmanship of the
Commissioner
in
which
suitable
representation will be given to the people of
this community. The above committee would
also monitor, the implementation of these
welfare schemes. In addition employment to
the local persons of this community would
also be provided.

KHANIJ VIKAS NIDHI ( MINERAL
DEVELOPMENT FUND):

34. To achieve the twin objectives of
promoting
exploration
and
mineral
development, funds will be required for the
following:-
34 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
1.
For
procurement
of
modern
equipment for exploration and testing.
2.
For preparation of a computerised
data base and feasibility reports for the use of
entrepreneurs.
3.
For building/ strengthening of
infrastructure and creation of Mineral Estates.
4.
For
compensatory
afforestation
and reclamation of mined out lands.
5.
For operating the welfare schemes
for the Mallah Community.

35. To meet these requirements the State
Government will create a "Khanij Vikas
Nidhi" by providing five percent of the
revenue collection. For approval of the
utilisation of the money collected in the said
fund,
a
committee
will
be
constituted
consisting
of
Industrial
Development
Commissioner as its Chairman and Secretary,
Industrial Development, Principal Secretary/
Secretary
Finance,
Secretary
Planning,
Managing
Director,
PICUP,
Managing
Director,
UPSIDC,
Director-Geology
&
Mining and concerned officers will be its
members."

36. Inspite of hearing the learned counsel
for the petitioner at more than sufficient
length the court could not find any force in the
argument that the aforesaid Govt. Order takes
away the principle behind Rule 9-A by
bringing into new mineral policy 1998. It is
more than obvious that the State proposes to
raise revenue earning from major mining
activities in the State and at the same time
draw balance for the minor minerals and
protect these persons who are engaged in river
bed activities of mining as was envisaged
through the 20th amendment by incorporating
Rule 9-A.

37. The Court is thus called upon to make
a harmonious constructions so that the welfare
provisions are not lost in the search of
revenue procurement. In this connection one
may refer to the decision of the Supreme
Court in Pondicheri vs. Mohd. Hussain
reported in 1994 (6) S.C.C. page 121 wherein
it has been held: -

"We cannot lose sight of the fact that the
Act is itself a legislation enacted with a view
to achieve a more equitable distribution of
land so as to support the directive principle
contained in Article 59 of the Constitution of
India. The provisions of such a legislation
have to be so interpreted as to further the
object of the legislation and not defeat the
same."

38. The court finds enough support and
strength from the aforesaid observations of
the Supreme Court on the provisions of the
said Act as furthering the object of the act and
the court does not find any indirection in the
provision of the Act which justify placing
such an interpretation of the present Mining
Policy which will defeat the policy behind
Rule 9 (A) of the M.M.C. Rules.

39. It has already been noted above that
M.M.C. rules are similar to subordinate
legislation and therefore if an interpretation
put to it results beneficial for all sections of
the society and also ensures the economic
development of weaker class of society,
compulsorily such an interpretation must be
applied.

40. A reference has already been made to
Clause 5 of para 2 of G.O. dated 16.3.99. It
has saved the leases about which period has
not expired. It is specifically provided in the
aforesaid Clause that on expiry of period of
lease, those areas will be declared under
Chapter IV. Therefore, the G.O. dated 16.3.99
is not a declaration with regard to areas
covered by those lease deeds.

41. The aforesaid provisions in Clause V
left out of the para 2 of the G.O. mining area
wherever lease was existing and continuing
on 16.3.99. The District Magistrate are
required to declare by notification that these
areas are to be covered by Chapter IV by
2ALL] Uma Stone Crushing Co. & others V State of U.P. & others 35
issuing a declaration under Rule 23 of
M.M.C. Rules. A number of petitions have
been filed where the are was continuing to be
under lease executed in favour of lease under
Chapter II by applying 20th amendment of the
M.M.C. Rules. Consequently all those areas
are yet to be notified by the District
Magistrate of the concerned areas. In this
respect unless a lawful notification is issued
by the District Magistrate, the G.O. is not
going to cover those areas. To this extent
therefore it is hereby held that the instant G.O.
has not yet covered those areas where lease
was in continuation on 16.3.99 and unless a
declaration under Rule 23 is issued, Chapter
IV of M.M.C. Rules will not apply and
Chapter II continues to apply.

42. In order to extend preferential rights
under Rule 9-A the matter has to be
considered by the State Government. Shri
Vishnu Pratap learned Standing Counsel
argued that in view of the provisions
contained in Rule 23 and 24 respectively, the
declaration of an area for one chapter i.e. IV
excludes the provision of Chapter II and
where Chapter II provisions are attracted it
may exclude provisions of Chapter IV. With
these provisions in mind he argued that the
applicability of Rule 9-A will not be
permissible with regard to any of the area
which now falls under Chapter IV. On the
other hand the point conversed by some of the
counsel for the petitioner is that Rule 9-A is a
benevolent policy which is in no way
contradicted by the policy decision of 1998,
therefore, the distinction of the chapters
should be removed and the principle behind
Rule 9-A should be applied to lease deeds
which will be executed under Chapter IV
because, whether, it is Chapter II or it is
Chapter IV, it will always be a lease deed
which will have to be executed by Govt. for
settling mining right with citizens.

43. The propositions and the respective
contentions have been put to severe test. The
court does not find favour with the argument
of some of the learned counsel for the
petitioners that the present policy is designed
in any manner to undo the prospective
economic good which was brought into being
for certain section of the society. The
economically and educationally backward
classes of our society particularly those living
in River sides and earn through the river bed
minor minerals and also for the persons living
in the said District are designed to be
protected by those special provision. As
already discussed above, one of the objective
of any democratically elected Government
will be to uplift the down trodden.

44. It is hereby held that the principles and
the policy applicable through Rule 9-A of
M.M.C. Rules will be applied with regard to
settling of lease rights even if Chapter IV is
applied by the State Government. The Mineral
policy 1998 may not be affected at all if
settlement is done with regard to river bed
minerals by resorting to provision of Chapter
II while adhering to the auctioning method for
other minerals through Chapter IV. Thus this
is a matter which has to be considered by the
State Government and the court is not inclined
to force any decision on this issue except to
the extent noted above that even while
applying Chapter IV, the Rules in Chapter II
may be applied particularly the special
provisions
existing
for
socially
and
educationally backward citizens engaged in
carrying the occupation and excavation of
sand or morrum and are resident of same
district.

45. Since admittedly all area which are
notified under Chapter IV by the Govt. Order
would not cover are with regard to which
lease deeds were in existence on 16.3.99 and
the District Magistrate may not have made
separate notifications, those have to be
advertised by the District Magistrate in
accordance with the provisions of Chapter IV
in view of what has been contained in Clause
5 of para 2 of the G.O. dated 16.3.99.
36 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

46. It is after sufficient argument that the
court had granted and issued a complete stay
order with regard to auction to mining rights.
The stay order therefore will cease with the
writ petition being disposed of but the State
Government shall take decision at the earliest
convenience so that the policy decision
behind Rule 9-A and the decision which is
taken with regard to the Mineral in the State
as envisaged through the Mineral Policy 1998
are combined for all round development of the
State of Uttar Pradesh.

47. During the course of argument it was
pointed out that whether or not Rule 9-A is
intravires has been subject matter of a
reference by a Division Bench in the
Lucknow Bench and a Full Bench has been
constituted and perhaps arguments have been
heard. Be that as it may, in the instant case the
vires etc. was never touched by either side.
That apart, this Court has already expressed in
writ petition No.35895 of 1999 relying upon
the decision of another Division Bench in case
reported in 1997 2 A.W.C. page 618 that the
aforesaid rule 9-A is well protected by the
Constitution provision and is intravires.

48. In view of the aforesaid discussion,
the writ petitions partly succeed. They are
disposed of with the direction that each one of
the petitioner's claim shall be adjudged by the
official under the M.M.C. Rules in accordance
with the direction which may be issued by the
State Government in pursuance of this
judgement which preferably may be issued
within a period of 2 months from today. For
the reasons aforesaid the parties will bear their
own costs.

49. Before parting with the case the court
places on record appreciation for the sincere
assistance which came through the learned
counsel for the petitioners in deciding these
bunch of writ petitions and also for Shri
Vishnu Pratap, learned Standing Counsel who
argued the matter brilliantly.
Petition disposed of.
----------

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By the Court

1. "Separation of powers" amongst three
limbs of the State, the executive, the