Ranvir Singh vs State Of U.P. Thru. Prin. Secy. ...
2017 Latest Caselaw 5467 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 5
 

 
Case :- MISC. BENCH No. - 25055 of 2017
 

 
Petitioner :- Ranvir Singh
 
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Geology & Mines &
 
Counsel for Petitioner :- Shashank Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Rajesh Singh Chauhan,J.

(Delivered by Hon. Rajesh Singh Chauhan, J.)

Heard Sri J.N. Mathur, learned Senior Advocate assisted by Sri Shashank Singh learned counsel appearing for the petitioner and Sri Rahul Shukla learned Additional Chief Standing Counsel appearing for the State-respondents.

The petitioner is holding a mining lease. By instituting these proceedings under Article 226 of the Constitution of India he has assailed Government Order dated 16.2.2010 whereby the Assistant Geologists, Mining Officers and Mining Inspectors posted in the districts have been authorized to lodge criminal complaints in the competent court of law and first information reports in respect of offences under the U.P. Minor Mineral (Concession) Rules, 1963 and the U.P. Mineral (Prevention of Illegal Mining Transportation & Storage) Rules, 2002.

The primary submission of the learned counsel appearing for the petitioner Sri Mathur while impeaching the impugned Government Order dated 16.2.2010 is that no such authorization by the Satte Government could have been made except by way of notification to be published in the official gazette and further that such notification having been issued ought to have been placed before both the houses of the State Legislature as per the requirement of section 26 and 28 of the Mines and Mineral (Development & Regulation) Act, 1957. His submission, thus, is that neither the impugned Government Order dated 16.2.2010 was published in the official gazette nor the same was placed before both the houses of legislature, which would made the impugned Government Order inoperative being illegal. Sri Mathur has accordingly stated that any criminal complaint lodged by the officers mentioned in the Government Order dated 16.2.2010 would not be cognizable by the court concerned.

The Mines & Mineral (Development & Regulation) Act, 1957 is a Central enactment which provides for regulation of mines and development of minerals. Section 22 of the said Act provides that no court shall take cognizance of any offence punishable under the said Act or any rules made thereunder except on a complaint in writing which may be made by a person authorized to do so by the Central Government or the State Government. Section 22 of the Mines & Mineral (Development & Regulation) Act, 1957 is quoted here under :

''22. Cognizance of offences- No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government.'

The U.P. Minor Mineral (Concession) Rules, 1963 and the U.P. Mineral (Prevention of Illegal Mining, Transportation & Storage) Rules, 2002 have been framed under the relevant provisions of The Mines & Mineral (Development & Regulation) Act, 1957. According to the learned Senior Advocate, any offence committed under the aforesaid two sets of rules framed by the State of U.P. cannot be taken cognizance of except on a complaint which may be lodged by a person authorized by the State Government in that behalf. His further submission is that such authorization has to meet the requirement of section 26 and 28 of The Mines & Mineral (Development & Regulation) Act, 1957.

Our attention has also been drawn to Rule 74 of The U.P. Minor Mineral (Concession) Rules, 1963 according to which no court is empowered to take cognizance of an offence punishable under the said rules except on a complaint in writing of the facts constituting such offence by the district officer or by any officer authorized in this behalf. Rule 74 of The U.P. Minor Mineral (Concession) Rules, 1963 is reproduced here under :

''74. Cognizance of offencer.-(i) No court shall take cognizance of any offence punishable under these rules except on a complaint in writing of the facts constituting such offences by the District Officer or by any officer authorised by him in this behalf.

(ii) No court inferior to that of a Magistrate of the first class, shall try any offence under these rules.'

Section 26 and 28 of The U.P. Mines & Mineral (Development & Regulation) Act, 1957 are also relevant which are extracted here under:

26. Delegation of powers-(1) The Central Government may, by notification in the Official Gazette, direct that any power exercisable by it under this Act may, in relation to such matters and subject to such conditions, if any, as may be specified in the notification be exercisable also by-

(a) such officer or authority subordinate to the Central Government; or

(b) such State Government or such officer or authority subordinate to a State Government; as may be specified in the notification.

(2) The State Government may, by notification in the Official Gazette, direct that any power exercisable by it under this Act may, in relation to such matters and subject to such conditions, if any, as may be specified in the notification, be exercisable also by such officer or authority subordinate to the State as may be specified in the notification.

(3) Any rules made by the Central Government under this Act may confer powers and impose duties or authorise the conferring of powers and imposition of duties upon any State Government or any officer or authority subordinate thereto.

28. Rules and notifications to be laid before Parliament and certain rules to be approved by Parliament-(1) Every rule and every notification made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule or notification should not be made, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification.

(2) Without prejudice to the generality of the rule making power vested in the Central Government, no rules made with reference to clause (c) of sub-section (2) of section 16 shall come into force until they have been approved, whether with or without modifications, by each House of Parliament.

(3) Evey rule and every notification made by the State Government under this Act shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists one House, before that House.'

Section 26 of The Mines & Mineral (Development & Regulation) Act, 1957 speaks about delegation of power by the Central Government and also by the State Government. According to the provisions contained in section 26, the Central Government or the State Government, as the case may, be can direct that any power exercisable by the respective Governments may be exercisable also by the such officer and authority subordinate to the Central Government or the State Government to be specified in a notification to be issued by the government concerned. Section 28 requires that every rule and every notification made by the Central Government or the State Government as the case may be has to be laid before the legislature concerned i.e. before the Parliament in the case of Central Government and before the State legislature in the case of State Government. Section 26 would thus, apply in case the Central Government or the State Government intends to delegate its own powers to any other officers subordinate to it.

Section 22, however, does not speak of delegation of powers by the Central Government or the State Government rather it talks about authorization of an officer by the government concerned for the purposes of lodging criminal complaint by an officer. The provisions of section 22 thus, has nothing to do with delegation of power by the Central Government or the State Government. It is rather authorization of an officer for doing an act that is for lodging a criminal complaint before a competent court of law.

Delegation of power is made by an authority to do an act for which the authority himself is competent, by any other officer whereas authorization is made by the authority empowered to do so under a statute or any other lawful instrument. Delegation of power and authorization to do certain acts are two different situations. The ordinary dictionary meaning of the word ''Delegate' is to send or authorise a person as a representative or to depute (Oxford Concise English Dictionary). The word ''Delegate' in Black's Law Dictionary has been defined to mean to entrust another with the authority or empower another to act as an agent or a representative. The word ''Authorize' as defined in Oxford Concise English Dictionary means to give an authority to a person or a body or to sanction or commission a person to do some act.' The Black's Law Dictionary defines the word ''Authorize' to mean to give legal authority or to empower the authorized person to act for the person giving such an authority. '

Thus, from the aforesaid discussion it is clear that delegation is done by an authority to a person or a body or a subordinate to do an act which the delegatee is himself otherwise empowered or authorized to do under the statute or any other legal instrument. Whereas authorization would mean empowering an officer to do something for which the authority authorizing the person or body to do an act is empowered.

So far as the submission made by the learned Senior Advocate appearing for the petitioner in this case is concerned, it may be observed that an officer is empowered by an authorization to be made in this behalf by the Central Government or the State Government to lodge criminal complaint in respect of offences punishable under The Mines & Mineral (Development & Regulation) Act, 1957 or the rules framed thereunder. Authorization of an officer to lodge criminal complaint is not delegation of power for the reason that State Government or the Central Government under The Mines & Mineral (Development & Regulation) Act, 1957 has not been vested with the authority to lodge criminal complaint rather it is the person authorized by the State Government who has been empowered to lodge the criminal complaint. Accordingly, the impugned Government Order dated 16.2.2010 is not referable to delegation of power as set out in section 26 of The Mines & Mineral (Development & Regulation) Act, 1957 rather it is directly referable to section 22. A bare perusal of the language applied in Government Order dated 16.2.2010 makes it clear that the authorization of Assistant Geologists, Mining Officers and Mining Inspectors has been done by the State Government to lodge the criminal complaint in respect of the offences described in The U.P. Minor Mineral (Concession) Rules, 1963 and The U.P. Mineral (Prevention of Illegal Minin, Transportation & Storage) Rules, 2002. The Government Order does not, in-fact, delegates any of the powers of the State Government vested in it under the Act or the rules to any other officer. The question of delegation of powers arises only when the delegatee is vested with some power of doing an act and it intends to delegate the same to its subordinate officers. As already discussed above authorization and delegation of powers are two different situations. The Government Order dated 16.2.2010 makes an authorization and not a delegation.

Accordingly, the submission of the learned Senior Advocate appearing for the petitioner that Government Order was required to be published in the official gazette, thereafter it was to be placed before both the Houses of State Legislature is completely fallacious and merits rejection.

The word occurring in the Government Order dated 16.2.2010, ''Pratinidhanit' needs an explanation by this court. The Hindi word ''Pratinidhan' means delegation. However, the said word appears to have occurred in the Government Order dated 16.2.2010 inadvertently which can be attributed to draftsman's error. In place of the word ''Pratinidhanit', the correct word which ought to have been used by the State Government is ''Adhikrit'. However, such mistake occurring in the impugned Government Order dated 16.2.2010 does not make the order itself bad for want of its publication in the official gazette and placement before the two Houses of State Legislature as per the requirement of section 26 read with section 28 of The Mines & Mineral (Development & Regulation) Act, 1957 for the reason that the Government Order does not delegate any power of the State to any other subordinate officer rather it authorizes certain officers to do certain act in terms of the provisions contained in section 22 of The Mines & Mineral (Development & Regulation) Act, 1957.

For the aforesaid reasons we do not find any merit in the submissions advanced by the learned Senior Advocate appearing for the petitioner.

Writ petition, thus, is dismissed.

There will be no order as to costs.

Order Date :- 13.10.2017/Om.

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(Rajesh Singh Chauhan, J.)(Devendra Kumar Upadhyaya, J.)