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2004 Supreme(All) 2401
HIGH COURT OF ALLAHABAD
R.P. Misra and A.P. Sahi, JJ.
Satyendra Kumar Tripathi
Versus
State of U.P
C.M.W.P 50561 of 2004
Decided On : 23 December 2004
C. M. W. P 50561 Of 2004
Deo Prakash Singh, GAURAB BANERJEE, J.M.Khanna, MUKESH PRASAD, Pankaj Mithal, R.K.GUPTA, S.M.A.Kazmi, S.P.KESARWANI, Satya Prakash Singh, V.B.UPADHYA,
The Court held that the impugned rules were not unconstitutional or ultra vires the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the rules framed therein. The Court found that the Rules did not create a monopoly in favor of any particular caste or castes and that the preference was only an extension of availability of preferential rights in a very limited particular contingency. The Court also held that the Rules did not suffer from the vice of unauthorized subordinate legislation.
Headnote:
The Court upheld the validity of the 26th and 27th Amendment Rules, 2004, in the Uttar Pradesh Minor Mineral (Concession) Rules, 1963. The Court held that the Rules were not unconstitutional or ultra vires the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the rules framed therein. The Court found that the Rules did not create a monopoly in favor of any particular caste or castes and that the preference was only an extension of availability of preferential rights in a very limited particular contingency. The Court also held that the Rules did not suffer from the vice of unauthorized subordinate legislation.
Fact of the Case:
None
Finding of the Court:
The Court found that the Rules were not unconstitutional or ultra vires the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the rules framed therein. The Court found that the Rules did not create a monopoly in favor of any particular caste or castes and that the preference was only an extension of availability of preferential rights in a very limited particular contingency. The Court also held that the Rules did not suffer from the vice of unauthorized subordinate legislation.
Issues: 1. Whether the impugned rules could have been framed as the subject matter of amendment was completely beyond the powers of the State Government and hence has advanced the argument of "legislative incompetence". 2. Whether the impugned rules have been framed creating preference in favor of certain castes which amounts to nurturing "communalism" and "casteism" and, as such, it hits the basic "secular" structure of Constitution of India; 3. Whether the impugned rules are ultra vires Article 15 and article 19 (1) (g) of the Constitution of India; 4. Whether the impugned rules are ultra vires Article 14 of the constitution of India inasmuch as the grant of preferential rights under the impugned rules has no rational nexus with the object sought to be achieved under the Mines and Minerals (Regulation and Development) Act 1957; 5. Whether the impugned rules are Ultra vires the provisions of mines and Minerals (Regulation and Development) Act 1957 inasmuch as the impugned rules are contrary to the aims and objects of the said Act; 6. Whether the impugned rules are in clear teeth of the law laid down by the Full Bench in the case of Ram Chandra v. State of U. P. (2001 (3) HVD 223) (supra) which stands affirmed by the apex Court. 7. Whether the action of the State Government is a fraudulent exercise of power inasmuch as it has framed the Rules contrary to the intention disclosed and promise made on oath before the Apex Court in the case of Ram Chandra v. State of U. P. (supra); 8. Whether the impugned rules are a colourable device to completely over come and defeat the affect of the ratio of the full Bench decision in the case of Ram Chandra v. State of U. P.
Ratio Decidendi: 1. The Court held that the State Government was empowered to frame Rules for grant of preferential rights and that the Rules did not travel beyond the scope of the enabling Act. 2. The Court held that the impugned Rule does not suffer from the vice of excessive delegation and that the State Government is not denuded of its power nor is the framing of such Rules ousted from the powers of the State government. 3. The Court held that the impugned rules are saved under Article 15 (4) of the constitution inasmuch as neither the Parliament has intended to prohibit the extension of any such benefit under the 1957 Act nor is the State Government prohibited from making any such rule under section 15 of the said Act. 4. The Court held that the Rule of preference has a rational nexus with the object which is sought to be achieved by the introduction of the impugned rules and that the impugned rule is a special provision which does not put an end or negate the substantive rights of any other class of persons. 5. The Court held that the impugned rule is clearly saved under Article 19 (6) of the Constitution of India and that the provision does not in any way infringe the right of freedom of carrying out of trade and business as guaranteed under Article 19 (1) (g) of the Constitution of the public at large.
Final Decision: The Court dismissed the writ petitions.
( 1 ) THE challenge in the present writ petitions is to the 26th and 27th amendment Rules introduced in the year 2004 in Uttar Pradesh Minor mineral (Concession) Rules 1963, whereby preferential rights have been created under the said Rules in favour of the persons belonging to socially and educationally backward classes and traditionally engaged in the profession of excavating sand and morrum for their livelihood. Since all these writ petitions relate to the same subject matter, the same are being heard together and the present order shall govern all these connected writ, petitions.
( 2 ) FOR the sake of convenience and for appreciating the controversy, we find it appropriate to quote the 2 amendments namely the 26th and 27th amendments brought into by the State Government. These amendments which are presently under challenge, have been introduced in Rule 9 of the U. P. Minor Mineral (Concession) Rules 1963. By the 26th amendment, Rules 9-A and 53-A, as they then existed, were completely repealed and omitted. The 26th Amendment dated 22-6-2004 is as follows :-Column I Column II existing rule9. Preferential right of certain persons. Rule as hereby substit9. Preferential right o (1) Where two or more persons have appliedfor a mining lease in respect the sameland, the applicant whose applicationwas received earlier shall have a preferential right for the grant of leaseover the applicant, whose applicatio nwas received later:
(1) where two or more papplied for a mining leof the same land, the aapplication was receivehave a preferential rigof lease over the appliapplication was receive provided that where such applications arereceived on the same day, the Stategovenment may, after taking into consideration the matters specified in Sub-rule (2),grant the mining lease to such one of theapplicants it may deem fit. Provided that where sucreceived on the same daernment may, after takideration the matters sp (2), grant the mining lapplicants as it may (2) The matters referred to in Sub-rule (1) are - (2) The matters referre (1) are- (a) Any special knowledge or experiencein mining operations possessed by theapplicant; (a) Any special knowledin mining operations papplicant; (b) The financial resources of the applicant; (b) The financial resou (c) The nature and quality of the technicalstaff employed or to be employed bythe applicant; (c) The nature and qualstaff employed or tthe applicant; (d) The conduct of the applicant in carrying but mining operations on the basis of any previous lease or permitand in complying with the conditions ofsuch lease or permit or the provisionsof any law in connection therewith; and (d) The conduct of theing out mining operaof any previous leasin complying with thsuch lease or permitof any law in connec (e) Such other matters as may be considbred necessary by the State Government. (e) In respect of mininmorrum or bajari orthese in mixed state in the river bed, ifequal, preference shperson or group of pincorporated or nota certificate in For the concerned Disstrsuch other Officer a behalf by the Statecertifying that suchis/are traditionallyexcavation of sand/m their livelihood and of the District for which the applic (f) Such other matter necessary by the S (3) Notwithstanding anything contained (3) Notwithstanding ain Sub-rule s (1) and (2), the State Govern-in Sub-rule s (1) andment may for any special reasons to be re-ernment may for any scorded, grant a mining lease to an applicant recorded, grant a minwhose application was received later appllcant whose applipreference to an applicant whose appli-later in in preferenccation was received earlier. whose application was ( 3 ) THE 27th Amendment dated 16-10-2004 introduced is as follows :column-I COLLUM existing clause Clause as her (e) In respect of mining lease for sand or (e) In respect of minimorrum or bajri or boulder or any of these or morrum or bajri orin mixed state, exclusively found in the river these in mixed state, bed, if other th
