ORDER
1. Writ Petition No. 8827 of 1988 has been filed by Sugli, whereas Writ Petition No. 3745 of 1988 has been filed by Shri Nath. Both of these petitions raise common questions, hence they are being decided by a single Judgment.
2. Sugli has claimed certiorari for quashing the advertisement published in the newspaper AMRIT PRABHAT dated 6-5-1988, inviting offers for the settlement of mining permit for Yamuna River Zone II. The relevant portion of his advertisement is being quoted below : --
dk;kZy; ftykf/kdkjh] bykgkckn
loZ lk/kkj.k dks lwfpr fd;k tkrk gS fd tuinbykgkckn ds fuEu ckyw {ks= mRrj izns'k mi [kfut ifjgkj fu;ekoyh] 1963 dsv/;k;&5 mifo/kkuksa ds vuqlkj fuEu leLr ckyw {ks=ks dks ekg ds fy, [kuuijfeV fn;s tkus ds fy, mi[k.Mksa ,oa thu ftudk fooj.k fuEu gS] muds lEeq[k vafdrfrfFk;ksa ij ^vkQj* vf/kdre ckyw {ks= [kuu ds fy;s vkeaf=r fd;s tkrs gS A bllea/k es nSfud lekpkj i=ksa ^ve`r izHkkr* fnukad 17 vxLr] 1987 dh izdkf'krfoKfir esa leLr 'krksZ dk mYys[k gS] blds vfrfjDr ;g Hkh lwpuh; gS fd fuEu {ks=ksads fy;s ^vkQj* muds lEeq[k vafre frfFk dks le; 4&00 ls 5&00 cts lk;a dkyrd vIij ftykf/kdkjh xzkeh.k izHkkjh vf/kdkjh [knku bykgkckn ds i{k esa izkIrfd;s tk;saxs vkQj izkfIr dk LFkku U;k;ky; d{k ,- lh- ,e- fn~orh; bykgkckn A
ukywcky &[ksr{ks= vof/k /kjksgj dh jkf'kvkQj nsus dh frfFkteqyk unh tksu uEcj&2xzke tykyiqj HkrhZ ds if'pe esafdyugkbZ unh ds laxe rd {ks=
10&5&88 19999@5 6 ekg ds fy,9&5&88
3. The petitioner claimed that the power to charge any amount is within the powers of the State Government under Section 15 of the Mines and Minerals (Regulation and -Development) Act, 1957 hereinafter referred to as Act). Consequently, the District Magistrate could not issue the impugned advertisement, which runs contrary to the provisions of the Act and the U.P. Minor Minerals (Concession) Rules, 1963 (briefly stated as 'the Rules'), made by the State Government in exercise of the powers under Section 15 of the Act.
4. Two objections initially raised through the writ petition were (1) the Collector could not ask for security along with the application in Form MM-8 for considering the application for permits, and (2) he could not direct the mentioning of the area of sand which the applicant for permit could excavate. The petitioner urged that the action of the Collector was contrary to the Rules.
5. In the writ petition of Shri Nath, similar arguments have been raised. The petitioner has alleged that there being no provision in the U.P. Minor Minerals (Concession) Rules, 1963, for inviting offers and demanding security for granting of mining permits under Chapter VI of the Rules, the Collector had acted against the same, and, as such, the advertisement was liable to be quashed. In this connection, the petitioner also has alleged that the advertisement inviting offers for granting permit with regard to the whole sandy area of Zone I of Yamuna River from village Yamuna river towards west of Naini Bridge up to Jalalpur Bharti, except plots 702 and 703 of village Mohabbatpur, tehsil Karchhana, district Allahabad, was beyond the powers of the Collector, Allahabad.
6. During the course of hearing, the State of U.P. filed a copy of the Government Order dated December 18,1986, whereby the State Government being of the opinion that due to conflicting stay orders passed by this Court for awarding the lease in accordance with Rule 9(3) of Chapter II of the Rules, it had become necessary that Rule 9(3) be not implemented and be kept in abeyance for the time being. In that connection, the guidelines given by the State Government are :
^^volj dh lekurk rFkk jktLo dsfgr dks n`f'Vxr j[krs gq;s ijfeV nsus esa fuEu iz.kkyh dk iz;ksx ;Fkk lEHkofd;k tk; A fdlh Hkh {ks= dks ijfeV iz.kkyh ij fn;s tkus ls iwoZ yxHkx ,d lIrkgds lkoZtfudn uksfVl }kjk oS/k dh miyC/krk dh lwpuk fn;s tkus rFkk tulk/kkj.k dsfu/kkZfjr vof/k esa 16 ekg ls vukf/kd fudkys tkus okys ckyw dh ek=k dksLi'V djkrs gq, izkFkZuk i= fu/kkZfjr izi= ,oa Qhl ds lkFk vkeaf=r fd;k tk;sA lek;kUrjxr izkIr lHkh oS/k izkFkZuk i=ksa ij fopkj djds iwoZ fu/kkZfjr le; esavf/kdre ckyw fudkyus dk vkWQj nsus okys vkosnd dks ijfeV ij dk;Z djus dh vuqefrfu;ekuqlkj vfxze jk;YVh ns nh tk;s A
7. Upon the Government Order being produced, Sri Ashok Khare, counsel appearing for the petition in writ petition of Sugli has applied for amendment of the writ petition seeking to challenge the validity of the aforesaid Government Order.
8. We may, briefly, refer to the various provisions of the Act and the Rules. In the year 1957, the Parliament enacted the Mines and Minerals (Regulation and Development) Act, 1957, for Regulation of mines and development of minerals under the control of the Union. In Section 3 of the Act, 'minerals' has been defined to include all minerals except mineral oils. The provisions regarding prospective licences and mining leases are contained in Sections 4 to 12. Section 13 empowers the Central Government to make rules for regulating grant of prospective licences and mining leases. By Section 14, prospective licences and mining leases in respect of minor minerals have been excluded from the operation of Sections 4 to 13. Section 15(1), which is relevant, is in these words ;
'The State Government may, by notification in the official gazette, make rules for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith.'
9. The expression 'minor minerals' is defined in Section 3 of the Act in these words :
' 'minor minerals' means building,-- stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may by notification in the official gazette, declare to be a minor mineral'.
10. Exercising the power delegated under Section 15(1) of the Act, the Governor of U.P. promulgated the U.P. Minor Minerals (Concession) Rules, 1963. Rule 3 of the Rules permits mining operations to be under a mining lease or mining permit. Sub-clause (1) of R. 3, which is relevant for our purposes, is as under: --
'3.( 1) No person shall undertake any mining operations in any area within the State of any minor mineral to which these rules are applicable except under and in accordance with the terms and conditions of a mining lease or mining permit granted under these rules.
Provided that nothing shall affect .any mining operations undertaken in accordance with the terms and conditions of a mining lease or permit duly granted before the commencement of these rules'.
11. Sub-rule (2) of Rule 3 directs that no mining permit shall be granted otherwise than in accordance with the provisions of these Rules. Consequently, the prohibition is that the permit cannot be otherwise than in accordance with the provisions of the Rules. That will mean it cannot run contrary to or be opposed to the procedure provided for in Chapter VI of the Rules. Chapter VI is 'Mining Permit'. Rule 52 confers power on the District Officer to invite applications for grant of mining permit. Rule 53 lays down the manner of disposal of the applications for permit. The expression 'District Officer' has been defined in Rule 2(2). 'District Officer' means the Collector or Deputy Commissioner of the district in which the land is situate.
12. In the instant case, applications were invited for grant of permits requiring the applicants to mention the area of sand which could be excavated. On the area royalty is payable. Royalty has its basis in the contract between the guarantor and the holder of a mining lease and it is not a compulsory charge for holding such lease. The payment to the owner for extracting the minor minerals is computed on the basis of quantiy actually extracted and removed from the leased area. The requirement of giving the quantity of sand to be extracted is, therefore, an object which is in accordance with the Act and the Rules. No one can claim any right in the land belonging to the State Government, except in accordance with the Act and the Rules. Every applicant has to be clearly and equitably treated by the District Officer in the matter of grant of permit. There is, however, no question' of any fundamental right that the petitioner should be granted the permit.
13. Section 15(1), which has been extracted above by us, entitles the State to make the Rules laying down the methodology and all details pertaining to the same for excavating sand. A perusal of the provisions of the Constitution and, more particularly, Item 23 of List II of the Seventh Schedule, read with Article 294 of the Constitution, would show that the minerals situate in the State belong to the State Government. It is for this reason that a lease is executed in the name of the Governor in favour of those to whom these minerals are granted for being quarried.
14. Under Item 23, the State Legislature has been given the power to make rules to regulate mines and minerals development, but this legislative power contained in Item 23 is subject to Item 54 of List I of the Seventh Schedule, which gives the Parliament the right to make law regulating mines and minerals development to the extent to which such regulation and development under the control of the Union is decided by the Parliament. It is in exercise of this power that the Parliament enacted Mines and Minerals (Regulation and Development) Act, 1957. Section 2 of the Act says:
' It is hereby declared that it is expedient in the public interest that the Union should take under its control the regulation of Mines and the development of minerals to the extent hereinafter provided'.
15. It follows from the above that the power of the State Legislature and 'correspondingly powerof the State Executive cannot in any way be affected by the abovementioned Act. In the instant case, however, that is not the problem.
16. The argument raised in the writ petition was slightly different from that was submitted before us. Under Rule 3, the State Government was fully competent to decide whether the minerals may be extracted by means of mining permits or lease. The prohibition contained in Sub-rule (2) of Rule 3 is that no mining lease or mining permit shall granted otherwise than in accordance with the provisions of these Rules.
17. In order to effectuate Chapter VI, that the advertisement was made by the Collector inviting applications for giving of security and stating the area to be excavated. There is nothing wrong in such an advertisement of the Collector which could be considered against the provisions of the Rules. Asking what area to be executed is in the revenue interest and may also be with a view to keep a check on the person who obtains the same, demanding of security is also, therefore, with a view to put a check on the defaulters. All these provisions could not be objected to. Whether the area for which the permit is to be issued is a large one or should have been less is a matter for the Collector to decide and if he has not acted arbitrarily, capriciously or on irrelevant considerations, the Court has no power to interfere. Nothing could be shown to us by the counsel for the petitioners which could justifiably lead us to take the view that the areas announced were arbitrary and with a view to benefit some one and to deny others. No one is entitled to give the offer stating the sand to be excavated. On the quantity of the sand to be excavated, the royalty depends. It can be legitimately thought appropriate to give permits to those who indicate the largest quantity of sand to be excaveted. If sand remains unexcaveted, it is not available for the next year.
18. The petitioners' counsel next urged that the State Government by issuing the Government Order dated December 18, 1986, has interfered with the discretion of the District Officer which it has no power to do. We find no merit in this submission. Counsel stressed by relying on the decision in Mount; Corpn. v. Director of I and C, AIR 1965 Mys 148. Where the Mysore Court held that where an authority exercises his jurisdiction under a statute, he has to exercise his own individual judgment or discretion as the case may be. He cannot adopt the decision of any other body or his own. In Mannalal Jain v. State of Assam(AIR 1962 SC386) the Supreme Court. held that in the matter governed by the provisions of law, instructions not to contravene law.
19. In the Mysore case, the subject matter of regulation was included in List I and, therefore, was within the exclusive jurisdiction of the Union. In that connection, the Mysore Court held that the State Government could not by appointing a Committee encroach or trespass into a matter exclusively within the jurisdiction of the Union Government. On that basis, the State Government's order was found to be ultra vires. There can, however, be no dispute with the proposition that the executive directions cannot run contrary to the provisions of the Act and the Rules.
20. The point that arises for consideration in these writ petitions is whether the guidelines issued by the State Government by its Order dated December, 18, 1986, runs contrary to the rules or do they fetter the discretion of the District Officer whatever was given under the same for implementing it. Only with regard to implementation of Chapter VI, some guidelines have been given which may not be even considered to have been issued in exercise of executive power.
21. Under, Article 162 of the Constitution, the State is not competent to issue any order which runs contrary to the statutory rules or an Act. The executive must abide by that Act or the Rules. It cannot ignore or act contrary to the Rules or the Act. We need not elaborate this point, except, mentioning the decision of the Supreme Court in Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549. It was observed in this case :
'Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away.'
22. In this case, what was done was only giving of guidelines that the District Officer may keep by granting permits. Such guidelines have the benefit of being known to the concerned persons and are certaia and further they fulfil the requirment of being equal to every one by the State Government in the discharge of distribution of largess to the public, The guidelines laid down by the State Government are for augmentation of revenue and nothing else. With the guidelines given the Collector would serve public purpose of expanding the beneficial activities by the availability of larger funds. A welfare State exists for the largest good of the public.
23. The next argument was that by the guidelines the State Government interferes with the discretion of the Collector given by Chapter VI of the Rules. We do not find substance in it. It will be for the Collector or the District Officer to decide as to which one is entitled to get the permit on the basis of the guide-lines which will work equally with everybody. The Collector entrusted with the discretion has to direct himself properly in law. He must call his own attention to the matters which he is bound to consider. Hemust exclude from his consideration matterswhich are irrelevant. I
24. Another aspect of the matter which we wish to mention in Sugli's case is that he did not apply for the grant of permit within the time allowed by the advertisement. The application had to be made on or before 9th May, 1988. The petitioner's counsel submitted that as the petitioner had filed the writ petition on 9th May, 1988, and obtained a stay order on that date, he could not be held to be not entitled to get the relief prayed for in the writ. The High Court has only stayed the finalization of the tenders and, therefore, nothing could be read in that order which prevented the petitioner from applying for the grant of permit.
25. For what we have said above, we are unable to find merit in both these writ petitions and dismiss the same summarily. The stay orders granted by this Court in the two writ petitions are vacated.