- (1.) THESE writ petitions have been filed for quashing the notices issued to the petitioners not to use the machines in the mining operations on the basis of the Government Orders issued by the State Government from time to time i. e. 30-11-2002 and 5-2-2003. As common questions are involved in all the writ petitions, as such, they are being decided by a common judgment.
(2.) THE submission raised on behalf of the petitioners is that neither under the terms and conditions of the lease deed nor under any statutory rule there is any restriction or prohibition against the use of machines for the purposes of excavation of sand. As the petitioners are using machines for carrying on mining operations from the river bed and no restrictions whatsoever were placed on the use of machines by the respondents. In view of Rule 40 (c) of the Rules, specifically mentions the use of machines for carrying on mining operations. THE condition of the lease deed provide for the removal of machines etc. after the expiry of the lease deed meaning thereby that using of machines are permitted. THE impugned orders mentioned that uses of machines are prohibited by the Government Order. It has further been submitted on behalf of the petitioners that that the Government Order dated 30-11-2002 stating therein that inclusion of the condition of prohibition against the use of machines in the lease deed is without any basis and is against the statutory Rule 40. Further the Government Order dated 5-2- 2003 has been issued on the basis of recommendations of Director, Geology and Mining, dated 16-1- 2003. Under Section 4 (1) of the Act no prospective license or mining lease can be granted otherwise than in accordance with the provisions of the Act and Rules made there under. Section 4 of the Act is being reproduced below:- "section 4. Prospecting or mining operations to be under licence or lease.- (1) No person shall undertake any prospecting or mining operation in any area, except under and in accordance with the terms and conditions of a prospecting licence or, as the case may be, a mining lease granted under this Act and the rules made thereunder: Provided that nothing in the sub-section shall effect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement. Provided further that nothing in this sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, the Automatic Minerals Division of the Department of Atomic Energy of the Central Government, the directorate of Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limited, a Government Company within the meaning of Section 617 of the Companies Act, 1956. (2) No prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder. (3) Any State Government may, after prior consultation with the Central Government and in accordance with the Rules made under Section 18, undertake prospecting or mining operations with respect to any minerals specified in the First Schedule in any area within that State which is not already held under any prospecting licence or mining lease. " That under Rule 3 (2) of 1963 Rules no mining lease or permit can be granted except in accordance with the provision of 1963 Rules. Rule 3 of the 1963 is being quoted below: "mining operations to be under a mining lease or mining permit.- (1) No person shall undertake any mining operations in any area within the State of any minor mineral to which these rules are applicable except under and in accordance with the terms and conditions of a mining lease or permit granted under these rules: Provided that nothing shall affect any mining operations undertaken in accordance with the terms and conditions of a mining lease or permit duly granted before the commencement of these rules. (2) No mining lease or permit shall be granted otherwise in accordance with the provisions of these rules. " No condition, which is not a statutory in nature can be imposed against the petitioners. The prohibition of the use of machine is a condition of lease deed and the Government Order, the same is not binding upon the petitioners. Under the statutory rules, there is no restriction or prohibition against the use of machines for the purposes of excavation of sand, as such, the impugned order is liable to be quashed. The issuance of Government Order dated 30-11-2002 will be against the statutory Rule 40 of the Rules. Rule 40 (C) is specifically mentioned the use of machine for carrying on mining operations. According to Rule 4 (1) of the Act no prospecting licence or mining lease can be granted, otherwise than in accordance with the provisions of Act and Rules made thereunder. The State Government has got no power under Rule 3 (2) of the U. P. Minor Minerals (Concession) Rules 1963 provides that no mining lease shall be granted except in accordance to the provisions of Rules or to impose any condition which is contrary to the provisions of the Act and Rules. As the mining operation also includes the use of machines, therefore, the State Government has got no jurisdiction to issue a Government Order restricting for use of machine, as such, it has been submitted that the State Government cannot impose any condition or restriction in exercise of powers under Section 15 of the Act. Rule 40 is being reproduced below: " (40) Liberties, Powers and privileges.- 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, drifts, levels waterways or other works; (c) to erect and construct on the lands and machinery, plant dressing, floors, furnances, brick-klins, workshops, store house and other buildings of the like nature; (d) to make any roads and other ways over the said lands and to use and pass over the same; (e) to quarry and get stone gravel and other building and road materials and clay and to use the same and to manufacture such clay into bricks or tiles and to use such bricks or tiles but not to sell any such material, bricks or tiles; (f) to use a sufficient part of the surface of the said lands for the purpose of storing or depositing any produce of the mines or materials and substance dug or raised, and, (g) subject to the existing rights of others and save as provided in clause (d) of Rule 41, to clear, undergrowth and brushwood and to fell, and utilize an trees or timber standing or found on the said lands, provided that the lessee may be asked by the District Officer to pay for any trees or timber felled and utilized by him at the rates to be determined, having regard to their market value by District Officer. "
(3.) THE petitioners have placed reliance upon the judgments of this Court in State of Uttar Pradesh & Ors. v. K. P. Sui & Anr. , reported in AIR 1977 Allahabad 279. THE another judgment relied upon by the petitioners in Jawahar Lal Jaiswal v. State of Uttar Pradesh & Ors. , reported in AIR 1981 Allahabad 292 Full Bench and two other judgments in Charan Singh v. State of U. P. & Ors. , reported in 2005 (2) JCLR 975 (All) : 2005 (3) AWC 2302 (Para 13 and 14 are relevant) and in Inam v. State of U. P. & Ors. , reported in 2003 (2) JCLR 26 (All) : 2002 (3) AWC 1977 (Para 5 of the judgment) In view of the aforesaid fact, the petitioners submit that the restriction is wholly arbitrary and against the provisions of act and rules. Though it has been stated on behalf of the petitioners that the Government Orders of 2003 and 2002 have already been superceded.;