Point of law: State Government have not so far issued any notification in terms of Section 17A, the Industrial Policy–2007 of the Kerala State Government does not have the effect of making a valid reservation within the comprehension of Section 17A. The High Court was, therefore, justified in holding that there is no valid reservation as at present no maer the government can make such a reservation if so advised in the manner prescribed by law. In other words, the dismissal of this appeal shall not prevent the State from invoking its right under Section 17(A)(2) of the Act by issuing notification in respect of the mineral deposits in question. There is, in that view, no reason for us to interfere with the judgment and order passed by the High Court

JUDGMENT :

Shri Devbrat Mukherjee appears for the petitioner. Learned standing counsel appears for the State respondents. The validity of clause (a) of sub rule (2) of Rule 23 of Uttar Pradesh Minor Minerals (Concession) Rules, 1963 is being questioned vide this petition under Article 226 of the Constitution of India. Ancillary relief sought by the petitioner is the quashment of notice dated 20.6.2020 inviting e-tender for grant of mineral lease. Petitioner also seeks mandamus to the extent that the respondents be directed to grant mining lease for five years.

The impugned clause (a) sub rule (2) of Rule 23 of 1963 Rules as brought in vogue vide 50th Amendment Rules 2020 w.e.f. 22.5.2020 is reproduced for ready reference:

“ (2) Subject to direction issued by the State Government from time to time in this behalf-

(a) The area or areas for mining leases in respect of sand or morrum or bajari or boulder or any of these in mixed state exclusively found in the riverbed shall be leased out only by e-tender or e-auction or e-tender-cum-e-auction for the fixed period of five years at a time:

Provided that, if for any reason, it is not possible to settle the river bed mining areas for the long term, the areas may be settled through short term mining permit. Short term permit will be granted for a maximum period of 6 months by e-tender/e-auction, under terms and conditions laid down by the State Government from time to time:

Provided further that in case of grant of mining permit, the permit holder shall make payment of all due amount in advance.”

Apparently the amendment is in exercise of the powers conferred under section 15 of the Mines and Minerals (Regulation and Development) Act, 1957, which provides that the State Government may by Notification in the official gazette make rule for regulating the grant of quality leases and mining leases or other mineral concessions in respect to minor minerals and for purpose connected therewith. Sub section (1-A) of Section 15 of 1957 Act further empowers the State Government to make Rules in respect of matters which find mention in clauses (a) to (o) thereof. That clause (a) stipulates that the Rule can be made in respect of 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 therefor. That clause (e) stipulates that rule can be framed in respect of the procedure for obtaining quarry leases, mining leases or other mineral concession.

Precise submissions on behalf of the petitioner is that the Rules of 1963 there are two provisions for grant of concession under Chapter II by way of mining lease and the other under Chapter IV by way of auction lease. It is urged that both these Chapters cannot operate simultaneously. In other words it is contended that under Chapter IV of the Rules of 1963 there being a legislation that once a mining area had been declared for grant of e-tender-cum-e-auction lease other Chapters for grant of concession are inoperative.

It is further contended that under declaration of Rule 23(3) of the Rules of 1963, the provisions of Chapter II, III and IV does not apply to such area. It is urged that Chapter II deals with grant of mining lease on the basis of certain preferential rights and Chapter VI deals with mining permit. It is contended that the impugned amendment which facilitates short term mining permit by way of e-tender-cum-e-auction is contrary to the entire scheme of Rules of 1963. As also it contravenes the provisions contained under sub section (3) of Section 15 and Section 19 of 1957 Act. It is also borne out from the pleadings that the petitioner is a prospective applicant for lease of mining area situated at village Manjh Sautarampur Tehsil Haraiya District Basti admeasuring 10.15 hectares having a preferential rights under Rule 9(2) of the Rules of 1963. Be that as it may the impugned amendment is challenged mainly on the ground of it being violative of Sect