M/S Rajendra Singh vs State Of U.P. Thru Secy. And 2 ...
2013 Latest Caselaw 6443 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 19.9.2013
 
Delivered on 11.10.2013
 

 

 
Case :- WRIT - C No. - 38982 of 2013
 

 
Petitioner :- M/S Rajendra Singh
 
Respondent :- State Of U.P. Thru Secy. And 2 Others
 
Counsel for Petitioner :- Vishesh Kumar
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashok Bhushan,J.

Hon'ble Vipin Sinha,J.

(DELIVERED BY HON'BLE ASHOK BHUSHAN, J.)

Heard Sri Vishesh Kumar, learned Counsel for the petitioner and Sri Alok Singh, learned Standing Counsel appearing for the State respondents.

The State having filed counter affidavit, with the consent of learned counsel for the parties, the writ petition is being finally decided.

Brief facts of the case which emerged from pleadings of the parties are; that the petitioner claims to be a small scale industry carrying on the business of stone crushing. The petitioner claims to have been granted no objection certificate by the U.P. Pollution Control Board with regard to air and water pollution. On 6.9.2012, the petitioner applied for grant of licence for storage of minerals in accordance with the U.P. Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2002. (hereinafter referred to as ''2002 Rules'). A show cause notice dated 29.9.2012 was issued to the petitioner asking him to show cause with regard to seven issues as mentioned in the notice. The petitioner claims to have filed a reply to the show cause on 4.12.2012. A joint inspection was held of the petitioner's stone crusher on 6.6.2013 by a team of officers consisting of Mining officer, Regional Officers, U.P. Pollution Control Board and two other officials. At the time of inspection 120 cubic meter minerals were found stored without petitioner having any storage licence. The inspection team also found several other illegalities. Direction was issued by the team to stop the operation of stone crusher and the minor minerals (Gitti/boulders) were directed to be taken into possession. A show cause notice dated 4.7.2013 was issued asking the petitioner to show cause within 30 days as to how the stone crusher was being run. The notice alleged violation of Rule 3/57/70 of U.P. Minor Mineral (Concession) Rules, 1963 and violation of Section 4/21 of the Mines and Minerals (Regulation and Development) Act, 1957 as well as violation of 2002 Rules. On 5.6.2013, the District Magistrate issued a notice to the petitioner pointing out certain deficiencies in the application dated 6.9.2012 submitted by the petitioner for grant of storage licence. The petitioner was asked to remove the deficiencies within seven days failing which the petitioner's application for storage of the licence would be rejected. The petitioner aggrieved by the action of the respondents dated 6.6.2013 by which operation of the petitioner's stone crusher was stopped has filed his writ petition praying for the following reliefs:

"i) to issue a writ, order or direction in the nature of certiorari quashing the order dated 06.06.2013 passed by the respondents by which the operation of the industry of the petitioner is prohibited and 120m3 of minor minerals has been seized. (Annexure no. 1).

ii) to issue a writ, order or direction in the nature of mandamus commanding the respondents to release the stone crusher machine and 120 M3 of minor minerals seized by them vide order dated 06.06.2013."

Sri Vishesh Kumar Learned Counsel for the petitioner in support of the writ petition submits that there is no obligation on the petitioner, who is only a stone crusher to obtain a licence under 2002 Rules. It is submitted that the petitioner crushes the stones/gitti/boulders brought by lease holders, which after crushing are handed over to the lease holders for transportation hence, there is no necessity of any storage licence by the petitioner. It is submitted that the petitioner can carry out his stone crushing operation without there being any storage licence and the action of the respondents in seizing the stone crusher as well as minerals found is wholly without jurisdiction. Learned Counsel for the petitioner submits that there is no power under the 2002 Rules, 1963 Rules as well as 1957 Act by which the stone crusher can be seized. He submits that at best the power could have been exercised by the respondents for seizing the minor minerals and the action of the respondents in seizing the plant and machinery of the stone crusher and stopping the stone crusher to carry out its operation is beyond the jurisdiction of the respondents. He submits that the petitioner having obtained no objection certificate from the U.P. Pollution Control Board is entitled to run its stone crushing operation without there being any hindrance by the officials of Mining Department. It is submitted that the stone crushing machine of the petitioner is neither a tool, equipment or vehicle, which was being used to illegally raise, transport or cause to be raised or transported any minerals without lawful authority hence, there was no jurisdiction in the authority in seizing the crushing machine. The petitioner was entitled for an opportunity before passing the prohibitory order. Due to closure of the industry, large number of persons have been made out of employment. The petitioner is neither a lease holder nor engaged in the business of purchase and sale of minerals excavated from the leased area therefore, It was not required to have any licence under the 2002 Rules.

Sri Alok Singh, learned Standing Counsel refuting the submissions of learned Counsel for the petitioner, contended that the petitioner being carrying on stone crushing activities, he is obliged to obtain licence under the 2002 Rules. He submits that without obtaining licence under the 2002 Rules, the petitioner cannot store any minerals. It is submitted that storage of minerals is a necessary consequence of carrying the stone crushing activity. He submits that all stone crusher including the petitioner carry on sale and purchase of the minor minerals. It is submitted that storage licence is necessary for the petitioner, which itself is evident from the fact that the petitioner has already made an application on 6.9.2012 for grant of storage licence, which application is still pending. The petitioner having not been granted storage licence, the petitioner could not have carried out any stone crushing activity. It is submitted that the petitioner having stored the minerals without there being any storage licence, have violated rule 11 of the 2002 Rules hence, no error has been committed by the respondents in seizing the minerals. It is submitted that the show cause notice dated 4.7.2012 has already been issued to the petitioner. It is submitted that the U.P. Pollution Control Board has already asked the petitioner to show cause as to why the no objection certificate granted by the U.P. Pollution Control Board be not cancelled since the petitioner stone crusher situate within 200 meters of the Forest area. It is submitted that the petitioner was operating the stone crushing plant illegally hence, it has rightly been stopped.

We have considered the submissions of learned counsel for the parties and have perused the record. From the submissions of learned counsel for the parties and pleadings on record, following are the issues which arise for consideration:

1.Whether a Firm/individual carrying on stone crushing activity is obliged to obtain storage licence under the 2002 Rules or the stone crushers can carry on their activity without any storage licence?

2.Whether the officials of the Mining Department have power to seize only the minor minerals found illegally stored or they can seize the plant and machinery in exercise of power under the 2002 Rules, 1963 Rules and 1957 Act?

3.Whether the action of the respondents seizing 120 cubic meters gitti/boulders and stopping the operation of crusher is in accordance with law?

4.to what reliefs, the petitioners are entitled in the present writ petition.

The first issue to be considered is as to whether the petitioner could have carried on stone crushing activities without obtaining a storage licence.

The Parliament has enacted the Mines and Minerals (Regulation and Development) Act, 1957 to provide for the development and regulation of Mines and Minerals. Section 4 (1)(1A) provides that no person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of the Act. Section 4 (1), (1A) are quoted below:

"4 (1) No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of reconnaissance permit or 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 this sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with the term 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 Atomic Minerals Directorate for Exploration and Research] of the Department of Atomic Energy of the Central Government, the Directorates 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.

Provided also that nothing in this sub-section shall apply to any mining lease (whether called mining lease, mining concession or by any other name) in force immediately before the commencement of this Act in the Union Territory of Goa, Daman and Diu.

(1A) 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 above section was inserted by by Act No. 38 of 1999, by the same Act No. 38 of 1999 section 23-C has also been inserted in 1957 Act. Sections 23-C(1), 23-C (2) (e), 23-C (2) (d) are quoted as below:

"23C (1) The State Government may, by notification in the Official Gazette, make rules for preventing illegal mining, transportation and storage of minerals and for the purposes connected therewith.

(2)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:-

(a)........

(b).....

(c). .........

(d) inspection, checking and search of minerals at the place of excavation or storage or during transit;

(e) maintenance of registers and forms for the purposes of these rules;"

In exercise of powers under section 23-C, the State Government has framed The Uttar Pradesh Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2002. Rule 4 contemplates supply of transit passes and fee, both for holder of a mining lease or a person holding licence for storage of minerals. Rule 5 provides for issue of Transit Pass which is quoted below:

"5. Issue of Transit Pass.-(1) The transit pass shall be issued by the holder of mining lease or mining permit or prospecting licence for major minerals in 'Form G' appended to these rules and for minor minerals in 'Form MM-11' appended to Rules 1963.

(2) The holder of licence for storage of minerals shall issue the transit pass in 'Form C' for lawful transportation of minerals from the store."

Rule 8 contemplates application for licence for storage of minerals. Rule 11 contains restriction on storage and transportation of minerals. Rule 11 is quoted as below:

"11. Restriction on storage and transportation of minerals.- No person shall,-

(a) store any mineral in any place without obtaining a licence,

(b) store any mineral within 50 meters from any public road, railway track or any public premises,

(c) use any land for storage of minerals, which do not belong to him or is not held by him/her under valid tenancy,

(d) transport the minerals from storage premises to any other place without issuing transit pass in ''Form C' appended to these rules."

Rule 13 provides for Inspection and checking of the storage of minerals. Rule 13 is quoted below:

"13. Inspection and checking of the storage of minerals-(1) For the purpose of checking of the stored minerals or for any purposes connected with the Act or rules made thereunder, the District Officer or the Officer authorised by the State Government may,

(a) enter, inspect any such storage premises,

(b) weigh, measure or take measurement of stock of mineral(s) lying in the store,

(c) examine any document, book, register or record in the possession,

(d) take extracts from or make copies of such document, book, register or records,

(e) summon on order the production of any such document, book, register or records as is referred to in clause (c),

(f) summon or examine any person having the control of or connected with any stock of the mineral,

(g) call for such information or return as may be considered necessary.

2. If any illegality is found in the stock of the minerals, the District Officer or the officer authorised by the State Government in this behalf may issue a notice to such licensee to explain his case within thirty days from the receipt of the notice and if no explanation is submitted within stipulated time or the explanation so submitted is not found satisfactory then the licence may be determined by the District Officer and if the stock so checked is found without any lawful authority, the same may be seized and confiscated."

Licence for storage of minerals is granted in 'Form B'. One of the columns in Form B is 'Purpose of the storage'. The holder of storage licence is required to give details of the stored material, details of the purchased mineral, dispatch particulars in 'Form D'.

The 2002 Rules thus, provide a complete mechanism of transportation and storage of minerals. The 2002 Rules have been framed with the object of "Prevention of Illegal Mining" which is the very heading of the Rules. The rule making power has been given under section 23-C of the 1957 Act with the object of preventing illegal mining, transportation and storage of minerals. Regulating the storage of minerals is with the object of preventing illegal mining. Permitting storage of minerals without there being any licence is bound to help illegal mining. A person storing minerals at any place, if is not required to disclose source of minerals and further if transportation of a minerals from a store to any place is not regulated, any one storing the minerals received from any source can with impunity send the minerals to different places. In the present case, we have to examine the 2002 Rules in context of a stone crusher. Rule 12 read with Form D mandatorily require a person having storage licence to maintain the correct and intelligible account of minerals, purchased, stored or dispatched and is also required to submit a copy of the correct account of minerals in the Form E. Rule 12 is quoted below:

"12. Maintenance of correct account of minerals.-(1) The holder of such licence shall keep all times a correct and intelligible account of mineral(s) purchased, stored or dispatched in Form D appended to these rules.

(2) The holder of the licence for storage of the minerals shall submit a copy of correct account of mineral, stored and transported by him every month to the District Officer, under whose jurisdiction the premises of storage is situate in ''Form E' appended to these rules."

Learned Counsel for the petitioner submitted that petitioner stone crusher after receiving the minerals from the lease holder crushes and return the same to lease holders hence, it does not require any storage licence. The stone crushing activity cannot be carried out without first storing the minerals near the stone crusher. Storage of minerals is necessary, both before the activity of stone crushing and after the minerals are crushed. The storage of minerals in a stone crushing activity is a necessary consequence. The petitioner in the writ petition has annexed a copy of the application dated 6.9.2012 submitted by the petitioner for grant of storage licence as Annexure-5 to the writ petition. Column No. 7 of the Form A provides "purpose of storage of minerals". In his application form in column No. 7, the petitioner has mentioned "Bikree" (sale). The application of the petitioner by which he sought storage licence dated 6.9.2012 itself makes it clear the purpose and object of petitioner's stone crusher is sale. The petitioner thus, has informed the District Magistrate his purpose for obtaining licence as sale of minerals. The petitioner's objective being sale of minerals, the submission of learned Counsel for the petitioner that petitioner's stone crusher does not store the minerals, has to be rejected.

In view of the foregoing discussions, we are of the view that a person carrying on stone crushing activity is obliged to obtain storage licence under 2002 Rules. As noted above, the petitioner has already applied for grant of storage licence on 6.9.2012 hence, it does not lie in the mouth of the petitioner to say that no storage licence is required for the petitioner stone crusher.

Issues No. 2 and 3 being interconnected are taken together. Learned Counsel for the petitioner has emphatically submitted that there is no power with the officials of the Mining Department to seize the plant and machinery of the stone crusher and at best they could have seized the minerals found on the stone crusher.

Before we answer the aforesaid issue, the scheme of 1957 Act, 1963 Rules and 2002 Rules have to be looked into. Section 21 of 1957 Act provides for penalties. Section 21(4) contemplates seizure of mineral tool equipment, vehicle. Sub sections (4) and (4A) of Section 21, which are relevant for the present case are quoted below:

"(4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf.

(4A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court."

Sub Section (4) of Section 21 contemplate seizure of any tool, equipment, vehicle or any other things which is used by any person for raising or transporting any minerals. The present is not a case of any allegation against raising of any minerals. The present is also not a case where any mineral is being transported.

2002 Rules also contemplates seizure and confiscation of stock of minerals with regard to which any illegality is found. Rule 13 relates to inspection and checking of the storage of minerals. Thus, under Rule 13 for any contravention in storage of minerals, the minerals can be seized or confiscated. It is thus, clear that in context of storage of minerals in contravention of 2002 Rules, the power is given for seizure and confiscation of only minerals.

The submission which has been pressed by learned Counsel for the petitioner is that apart from seizing the minerals, there is seizure of plant and machinery also. The word ''seizure' has been defined in The Oxford Dictionary of Difficult Words in following words:

" the action of capturing someone or something using force: the seizure of the Assembly building/ the Nazi seizure of power.

The action of confiscating or impounding property by warrant of legal right. 2. a sudden attach of illness, exp. A stroke or an epileptic fit: the patient had a seizure.

The seizing-up, jamming, or failure of a machine."...

The Law Lexicon P. Ramanatha Aiyer 3rd Edition defines ''seizure' in following words:

" In general "seizure" is a forcible taking possession

The legal definition of the word "seizure" is the taking possession of property by an officer under legal process.

The action of seizing.

"SEIZURE" is the act of taking possession of property of a person condemned by the judgment of a competent tribunal to pay a certain sum of money, by a sheriff or other officer lawfully authorized thereto by virtue of an execution, for the purpose of having such property sold according to law and to satisfy the judgment.

"SEIZURE" includes taking into possession or taking possession under a warrant or legal right. AIR 1943 Bom. 54. Merely holding books found lying in the premises for persuing them cannot properly be regarded as seizure because seizure implies doing something over and above holding an article in one's hand. Hazari Lal Vs. State of Bihar, AIR 1967 SC 170,173 [ Bihar Sales Tax Act (19of 1947), S. 17]

It has been said in America that a "capture" is a taking by military power, a "seizure" a taking by civil authority. (United States Vs. Athens Armory, 2 Abb. 137)."

The meaning of 'seizure' as commonly understood is taking into possession or taking possession under a warrant or a legal right. The seizure thus, include taking of possession. Without taking possession of an article, seizure is not complete. For ascertaining as to what action has been taken by the respondents against the petitioner, the inspection dated 6.6.2013 filed as Annexure-1 to the writ petition is to be looked into. After noticing the illegalities and irregularities in the stone crusher, the inspection note in the last stated as follows:

"vr% mDr LVksu dzs'[email protected] IykUV dk lapkyu ftykf/kdkjh egksn; ds vfxze vkns'kksa rd cUn j[kk tk; rFkk ekSds ij miyC/k mi[kfut [email protected] ,oa vU; leku viuh vfHkj{kk esa ysus dk d"V djsaA "

The Inspecting team directed for closing of the operation of the stone crusher until further orders of the District Magistrate and further directed that the minerals (gitti/boulders) available on stock be taken into possession. There was a direction in the inspection note to the S.H.O. Chunar that a watch be kept on the spot and the minerals be not permitted to be removed from the place. A perusal of the inspection note clearly indicates that plant and machinery have not been seized and the seizure was made only of the minerals (gitti/boulders) quantity of which was only 120 cubic meters. Thus, the submission of learned Counsel for the petitioner that plant and machinery have also been seized, cannot be accepted. It is however, true that direction was issued that operation of the plant and machinery be stopped until further orders of the District Magistrate. Now the related issue is as to whether in exercise of power under the 1957 Act and the 2002 Rules, any direction can be issued for closing of operation of the plant.

Section 23-C and the Rules framed under the said section is with the object of preventing the illegal mining. The stone crusher which is obliged to take storage licence before carrying on any operation whether can be directed to stop operation without obtaining the storage licence. Apparently under the 2002 Rules, there is no specific provision empowering the authorities to direct for closure of the plant. When the Rules have been framed with the object of preventing illegal mining, the interpretation of Rule has to be in a manner so as to advance the object of the Rules. When the Rules give power to do a particular thing, it by necessary implication also grants all such powers which are indispensable for the purpose of carrying out the purpose of the Act. This was laid down by the apex Court in (1996) 1 SCC 642 Reserve Bank of India and others Vs. Peerless General Investment and Finance Co. Ltd. in paragraph 27, which is to the following effect.

"27. In this context, it would also be relevant to mention that in Peerless II this Court has upheld the directions contained in Paragraphs 6 and 12 of the 1987 Directions. The directions which are contained in Paragraph 4A, introduced by way of amendment by notification dated April 19, 1993, seek to plug the loopholes by which the directions contained in Paragraphs 6 and 12 were sought to be evaded and circumvented. Paragraph 4A thus seeks to prevent evasion of the directions contained in Paragraphs 6 and 12 of the directions. If the Bank is competent to give the directions contained in Paragraphs 6 and 12 of the 1987 Directions, it stands to reason that the Bank should be competent to give directions which would prevent evasion- of those directions and secure their effective implementation. Section 45-K is in the nature of an enabling provision. In the matter of construction of enabling statutes the principle applicable is that if the Legislature enables something to be done, it gives power at the same time, by necessary implication, to do everything which is indispensable for the purpose of carrying out the purpose in view. [See : Craies on Statutes, 7th Edn. p. 258.] It has been held that the power to make a law with respect to any subject carries with it all the ancillary and incidental powers to make the law effective and workable and to prevent evasion. [See : Sodhi Transport Co. v. State of U.P. MANU/SC/0409/1986 : [1986]1SCR939 "

The 2002 Rules came for consideration before a Division Bench of this Court in Chandar Bhushan Misra Vs. State of U.P. 2013 (2) ALJ 107 of which one of us (Justice Ashok Bhushan) was a member. An argument was raised that Rule 13(2) which empowers seizure and confiscation refers to inspection and checking of storage of minerals of a licence holder. It was contended that with regard to a stone crusher where a person does not have any licence, power under Rule 13(2) of seizure and confiscation cannot be exercised. Repelling the said submissions following was laid down in paragraphs 17 and 20:

"17. The submission next pressed by the learned counsel for the petitioners is that Rule 13(2) of the 2002 Rules, which empowers seizure and confiscation, refers to inspection and checking of the storage of minerals of a licence holder. He submits that petitioners having not yet been granted licence, Rule 13 of the 2002 Rules is not attracted. The issue, thus to be considered, is as to whether Rule 13 of the 2002 Rules could have been invoked by the authorities for seizure of the sand illegally stored by the persons who have no storage licence.

20.When Rule 13(1) of the 2002 Rules cannot be restricted to mean empowering the authorised officer to inspect only stores of licence holder, the application of Rule 13(2) can also not be limited to licence holders only. Giving interpretation to Rule 13(2) that the said power can be exercised only against a person having storage licence, the whole purpose and object of the 2002 Rules shall be frustrated. If such interpretation is given the minerals of persons who have storage licence thus can only be seized and confiscated and the persons having no licence, no action can be taken against them under the 2002 Rules whereas the very object and purpose of framing 2002 Rules was to prevent illegal mining, transportation and storage. Thus Rule 13 of the 2002 Rules has to be interpreted in a manner that the power to be exercised by the authorised officer can be both against the persons having a licence and also against the persons having no licence and illegally storing the minerals. The persons having no licence cannot be put in a better footing than the persons having licence. The persons having no licence are clearly committing offence under the 1957 Act and the 2002 Rules and the action against the persons having licence can be taken only after proper inspection made by the authorities. Thus the power under Rule 13(2) of the 2002 Rules can be exercised by the District Officer also against the persons who did not possess any licence and all action which can be taken against the licence holder who commits offence under the 2002 Rules and the 1957 Act, can very well be taken against the persons who illegally stored the mineral without any licence."

We have already held that a stone crusher which is established with the object of selling the minerals, a storage licence is must. It is within the ancillary power of the authorities, who are entrusted with the duties to carry out the object of the Act and Rules to stop the operation of a stone crusher, which does not hold storage licence. In view of the foregoing discussions, we conclude that the plant and machinery have not been seized by the authority and only operation of the stone crusher has been stopped.

In the counter affidavit, copy of the notice dated 4.7.2013 has been brought on record by which the petitioner has been asked to show cause, which show cause notice was issued on the basis of the joint inspection dated 6.6.2013. The petitioner has already submitted an application for grant of storage licence as noted above. It is open for the petitioner to submit a reply to the said show cause notice and pray that the 120 cubic meters of minerals, which were confiscated be released in favour of the petitioner. We further observe that after obtaining the storage licence, for which the petitioner has already applied, it shall be open for the petitioner to make a prayer to the respondents to permit the operation of the stone crusher.

In the result, the writ petition is disposed of in the following manner:

1.Prayer of the petitioner for quashing the order dated 6.6.2013, by which operation of the industry has been prohibited and 120 cubic meter of minerals has been seized, is refused.

2.The order dated 6.6.2013 shall be read as only seizing the minerals and shall not amount to seizure of the stone crusher.

3.The petitioner may submit a reply to the show cause notice dated 4.7.2013, if not already submitted within two weeks from today, which may be considered and appropriate decision be taken by the District Magistrate in accordance with law.

4.The District Magistrate may take appropriate decision with regard to application of the storage licence given by the petitioner dated 6.9.2012 within four weeks from the date a copy of the order is produced.

5.In the event the storage licence is granted to the petitioner, it shall be open for the petitioner to make an application to the District Magistrate for withdrawing the prohibitory order stopping the operation of the stone crushers.

We make it clear that we are not expressing any opinion on the notice issued by the U.P. Pollution Control Board/Forest Department to the petitioner in view of the fact that no relief in this writ petition has been prayed for qua the said notice/issue. It shall be open for the authorities to take such action as permissible under law.

Order Date :- 11.10.2013

LA/-