- (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 Sitalpur and Kalauli in District Hamirpur. THE petitioners purchased 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. 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 notices under Section 4 (1-A) of the Act, 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) Amendment Act, 1999 and a new 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. " 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 it 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 sub-section (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. "
(3.) 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. 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 From 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, animal or any other mode of transport, excepting railway, without carrying a pass in Form MM-11 issued by sub-rule (1 ). (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 hint 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 fad 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 are 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. ";