Madhya Pradesh High Court
Chiman Lal vs State Of M.P. And Ors. on 7 August, 2006
Equivalent citations: AIR 2007 MADHYA PRADESH 17, 2007 (2) AKAR (NOC) 146 (MP)
Author: Deepak Verma
Bench: Deepak Verma, Sushma Shrivastava
JUDGMENT Deepak Verma, J.
1. By filing this petition under Articles 226/227 of the Constitution of India, petitioner herein is challenging the constitutional validity of Sub-rules (14) & (15) of Rule 30 of the M.P. Minor Mineral Rules 1996 ("Rules" for short) as being violative of Article 14, 19(1)(g) and 21 of the Constitution of India and on variety of other grounds as mentioned in the petition.
2. Admittedly, petitioner was granted a quarry lease for extracting yellow clay from Compartment No. 109, Coupe No. 25 at Village Bagra Tawa, District Hoshangabad (MP) for a period of ten years, commencing from 12-1-1993 to 11-1 2003. The said lease has since come to an end. The petitioner applied for renewal of lease before the competent authority, but the same also came to be rejected as the area which was earlier leased out to the petitioner, was falling within the forest area. Against such refusal, petitioner also preferred an appeal but the appeal also came to be dismissed. Thus, it cannot be disputed as on date. I here is no lease in favour of the petitioner, which has since expired on 11-1-2003.
3. On notices being issued, respondents submitted their reply. According to them, the impugned provisions of Sub-rule (14) and 15 of Rule 30 of the Rules do not suffer from any illegality or constitutional infirmity and as such, call for no interference by this Court. The petitioner was sanctioned a quarry for extraction of yellow clay for manufacturing of roof tiles over an area of four hectares situated in Bagra forest land and the said lease has now come to an end on 11-1-2003. Ever since then, petitioner has no right to excavate or extract aforesaid minor mineral from the said quarry as admittedly he has no permission to do so. It has also been contended that the yellow clay which is being used by the petitioner for the purposes of manufacturing roof tiles has no other market as it can be used only for the aforesaid purpose. It is the further submission of the respondents that large number of persons are engaged in illegal excavation of yellow clay from the said forest area which is adversely affecting the environment and causing damage to vegetation. They have also contended that only after buying yellow clay from those persons, petitioner is able to run the factory as admittedly he has no lease in his favour after 2003. It is also mentioned that Sub-rules (14) and (15) of Rule 30 only require transit passes for transportation of minerals or its products which cannot be said to be violative of Articles 14 or 19(1)(g) of the Constitution of India. The said provisions have been enacted only with a view to ensure proper accounting of minerals thereby preventing any evasion of royalty payable on the said minor minerals. Reference to Section 15 of Mines and Minerals (Development and Regulation) Act 1957 (for brevity referred to as the Act) has been made which empowers the State Government to make rules for regulating grant of quarry lease, mining lease and other mineral concessions. In respect of mines and minerals, Sub-section (1)(a) of Section 15 of the Act specifies the matter in respect of which rules may be framed by the State Government. Special reference has been made to Clause (a) thereof which gives power and competence to the State Government to frame rules regulating terms on which and the conditions subject to which quarry lease, mining lease and other mineral concessions may be granted or renewed. Such powers also include power to regulate transportation of minerals and products made there-from. In the light of the aforesaid reply, it has been contended that aforesaid provisions cannot be said to be ultra vires the Constitution.
4. After having filed the said reply by the respondent, petitioner has filed rejoinder. Rejoinder is also taken on record.
5. During the course of hearing, specific question was asked from the petitioner as to how much yellow clay is still in possession of the petitioner, out of which manufacturing process is still going on. Petitioner only referred to the documents which have been filed along with the Rejoinder to contend that the various statements filed along with the same show the details of yellow clay available at the disposal of the petitioner. However, we were not satisfied with the paper statements as submitted by the petitioner We, therefore, made a suggestion to the learned Counsel for the petitioner to grant permission to a Senior Officer of the respondent State to visit the factory of the petitioner, so as to verify the actual quantity of the raw material still available, out of which the petitioner is continuing manufacturing process, even after expiry of lease in the year 2003. Apparently, petitioner was not ready and willing to such a suggestion. In fact, learned Counsel for the petitioner vehemently argued that respondent State would neither be entitled nor be justified in visiting the factory premises of the petitioner to verify with regard to the quantity of yellow clay available as on date and no such order can be passed in this regard.
6. In the light of the serious opposition to the suggestion made by the Court, by the learned Counsel for the petitioner, we had no choice but to hear the matter on merits and that is how we have heard learned Counsel for parties and perused the record. It is apposite to refer to the relevant Sub-rules, the constitutional validity of which is being challenged.
Sub-rule (14) and (15) of Rule 30 of the Rules read as under:
(14) The lessee shall issue a transit pass in Form IX to accompany every carrier for every trip carrying mineral, or product or products from leased area. The transit pass shall be prepared in duplicate in book form. Original shall be given to the driver of the carrier after making the necessary entries. The Mining Officer shall issue the transit pass book duly stamped and signed by him on an application in Form VIII made by the lessee. The lessee shall surrender all previous duplicates of used transit pass books together with unused transit pass books issued to him before the royalty is paid by him under Clause (b) of Sub-rule (1) and fresh transit passes are issued. The Mining Officer will keep proper accounts of issued and used duplicate transit pass books and unused transit pass books deposited back by the lessee.
(15) Whosoever transports minerals or their products like bricks, tiles, lime, dressed stone, blocks slabs, tiles, chips, stone dust and ballast etc. without a valid pass in form IX or if the transit pass is found to be incomplete distorted or tampered with, the Collector, Additional Collector, Chief Executive Officer of Zila/Janpad Panchayat and officer authorised by the Gram Sabha/Deputy Director, Mining Officer, Assistant Mining Officer or Mining Inspector may seize the minerals or its products together with all tools and equipment and the vehicle used for transport.
Provided that the provisions of this sub-rule shall not apply purposes of Clause (i) of Rule 3.
7. These rules have been framed by the State Government by virtue of powers conferred on the State under Section 15 of the Mines and Minerals (Regulation and Development) Act 1957. Relevant Sub-section (1) of Section 15 of the Act reads as under:
(1) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of quarry leases, mining lease or other mineral concessions in respect of minor minerals and for purposes connected therewith.
Section (1A) reads as under:
In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely Clause (a) and (o) of Sub-section (1A) which are relevant for deciding the petition are as under:
(a) the person by whom and the manner in which, applications for quarry leases, mining leases or other mineral concessions may be made and the fees to be paid herefor;
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(o) any other matter which is to be, or may be, prescribed.
8. Apparently, exercising the powers conferred on the State Government under the aforesaid provisions, the rules have been framed, which cannot be said to be ultra vires. After all, State Government has ample powers to regulate the mining operations so as to avoid evasion of payment of royalty. Essentially, transit passes are issued for that purpose only. Nothing could be pointed out to us that State Government lacks competence or jurisdiction for framing such rules.
9. After having gone through the aforesaid section it is crystal clear that State Government has been conferred with wide powers to regulate grant of lease pertaining to minor minerals from quarries. It could not be established that the State Government has overstepped in the powers so conferred on it. In determining the constitutionality of a provision alleged to be violative of the fundamental right the Court must weigh the substance. The real effect and impact thereof on the fundamental right. Critical examination of Sub rules (14) & (15) of Rule 30 does not show or reflect violation of any of the fundamental right of the petitioner. The presumption is always in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the Constitutional Principles. The petitioner has failed to discharge the burden lying on him and nothing could be pointed out to us in this regard as to how the sub-rules can be construed as unconstitutional.
10. Apart from the above, it is also to be noted that after having received a benefit under a statute, it does not lie in the mouth of the petitioner to challenge the same, more so when his quarry lease has already come to an end.
11. At least we are not convinced with the line of argument that petitioner has sought to advance. Even otherwise, as has been mentioned hereinabove, mining lease of the petitioner has already come to an end in the year 2003. Ever since then, petitioner has not been able to disclose it as to how and from where he is getting yellow clay for the purposes of manufacturing roof tiles. For this added reason, we are of the opinion that there is no merit and substance in the petition. In fact, the petition has been rendered infructuous. It is accordingly hereby dismissed, as such, without any orders as to cost.