Naryan Das Tapadia v. State of Bihar — 1990 DIGILAW 271 (PAT)

JUDGMENT S. B. Sinha, J. - All these writ applications involve common questions of fact and law and, therefore, they were taken up together for hearing and are being disposed of by this common judgment. 2. The fact of the matter lies in a very narrow compass. 3. All the petitioners and/or their predecessors in-interest were granted mining leases by the State of Bihar in terms of the provisions of Mines and Minerals (Regulation & Development) Act, 1957 (hereinafter to be called and referred to for the sake of brevity as 'the Act') and Bihar Minor Mineral Concession Rules, 1972 (hereinafter to be called and referred to for the sake of brevity as the said 'Rules'). The leasehold areas in all the cases arc situate on the bank of river Subarnarekha and/or river Kherkai. The said mining leases were renewed from time to time. 4. Admittedly, in terms of the provisions of section 38 of the Bihar Land Reforms Act, 1950, the right, title and interest of M/s. Tata Iron & Steel Co. Ltd. (hereinafter to be called and referred to for the sake of brevity as 'TISCO') vested in the State of Bihar. The said provision was given a retrospective effect and retroactive operation. 5. On or about 1.8.1985, a vast tract of land in and around the town of Jamshedpur were given on lease to TISCO for industrial purposes as also various other purposes with retrospective effect from 1.1.1956, on which date the aforementioned provision of section 38 of the Bihar Land Reforms Act came into force. Admittedly, the subject matter of all the mining leases fall within the leasehold areas of TISCO. 6. In the year 1987-88, the Petitioners filed an application for renewal of their mining leases and at that point of time, TISCO intervened and objected thereto. At that point of time, the Deputy Commissioner, Singbhum who is the competent authority to grant mining lease under the said Rules suggested to the TISCO to provide alternative sites to the petitioners. Pursuant to the aforementioned suggestion of the Deputy Commissioner, Singhbhum, TISCO agreed to provide for alternative site to the petitioners in Mouzas Bara, Baridih and Mahrada. It appears that a joint inspection was held and the Mining Inspector reported that most of the lands were unfit for brick-kiln. Pursuant to the aforementioned suggestion of the Deputy Commissioner, Singhbhum, TISCO agreed to provide for alternative site to the petitioners in Mouzas Bara, Baridih and Mahrada. It appears that a joint inspection was held and the Mining Inspector reported that most of the lands were unfit for brick-kiln. Allegedly, the Deputy Commissioner by an order dated 30.8.1987 (annexure-7 to C. W. J. C 2070/89R) directed renewal of the mining leases for the season 1987-88 and directed the petitioners to look out for fresh areas and come to an understanding and TISCO also agreed to provide with alternative sites at other places. 7. The matter was again put up before the Deputy Commissioner, Singhbhum on 20th January, 1988 and allegedly although TISCO did not provide alternative site in terms of the aforementioned order of the Deputy Commissioner, the Deputy Commissioner rejected the application for renewal of mining leases. The petitioners filed revision applications before the Commissioner of Mines, but, by an order dated 5.7.88, he rejected the said revision applications, but however directed that the alternative site be provided to the petitioners. 8. The petitioners being aggrieved by and dissatisfied with the aforementioned orders, filed writ applications in this Court being C. W. J. C. 1517/88(R) and other Cases. By an order dated 16.8.88, this Court by judgment passed in C W. J. C. 1517/88(R) dismissed the said writ applications holding inter alia as follows :- "In view of the reasons given by the Commissioner, Mines and Geology (respondent no. 1) exercising power of the revisional authority, we are not inclined to interfere with the order passed by it and the District authority, respondent no. 2. It was submitted on behalf of the petitioners that the respondents be directed to give effect to the order of revisional authority as contained in paragraph 6 of annexure-3. On a perusal of Annexure-3 it appears that the revisional authority advised the Deputy Commissioner to hasten the final selection of the alternative site for the brick-kilns and invite applications under the law for leasing out the selected area for manufacture of bricks. It was submitted on behalf of the petitioner that they have no interest with particular site, but they must be provided a suitable site so that they may carry on business. We direct respondent no. It was submitted on behalf of the petitioner that they have no interest with particular site, but they must be provided a suitable site so that they may carry on business. We direct respondent no. 2 to select suitable site where brick kilns can be shifted from the present location as observed by the revisional authority and after inviting applications give out those areas to the brick-kilns owners including the petitioners. On behalf of the petitioner, it was submitted that till appropriate site is selected by the Deputy Commissioner and given to those brick-kilns owners, they shall be allowed to have brick-kilns at the place in-question. If there be any delay in selecting the site, the Deputy Commissioner shall dispose of any application that may be filed by the petitioners for allowing him to continue in the present place till suitable site is selected." Similar orders were passed in other writ applications. 9. On or about 3.11.88, the District Mining Officer issued notices (annexure-2) to the different writ petitioners whereby and whereunder they were informed that new site may be made available to them for setting up brick-kilns in villages Bara, Baridih and Mahrada, wherefor applications should be filed before him. The petitioner, in reply to the aforementioned notices inter alia contended that as the areas suggested by TISCO in the aforementioned villages had already been found to be unsuitable, TISCO should be directed to provide for new alternative sites. 10. It appears that after the disposal of the aforementioned C. W. J. C. 1517/88R and other writ applications by this Court, the writ petitioners filed applications for grant of quarrying permit for a limited period in terms of the provisions of the said Rules and respondent no. 2 granted the said quarrying permit. 11. By an order dated 28.6.89, as contained in annexure-4 to the writ application, respondent no. 4 intimated to the petitioners that under no circumstances, the petitioners would be allowed to carryon milling operation of removing earth for manufacturing brick after 30.5.1990 at the site in-question. 12. The petitioners filed revision application before the Commissioner who by the impugned order dated 17.10.1989 as contained in annexure-5 dismissed the same. 13. Mr. 4 intimated to the petitioners that under no circumstances, the petitioners would be allowed to carryon milling operation of removing earth for manufacturing brick after 30.5.1990 at the site in-question. 12. The petitioners filed revision application before the Commissioner who by the impugned order dated 17.10.1989 as contained in annexure-5 dismissed the same. 13. Mr. G. C. Bharuka, learned counsel appearing on behalf of the petitioners submitted that the impugned orders as contained in annexures 4 and 5 of C. W. J. C. No. 2070/89R could not have been passed by the respondent nos. 2 and 3 respectively in view of the fact that it was not necessary to obtain the consent of TISCO for grant and/or renewal of mining lease. According to the learned counsel for the State, the owner of the minerals is competent to grant mining leases in favour of the petitioners and/or grant renewal of the mining leases already granted even without the consent of the person who is entitled to possess the same, in as much as the owner of the surface in terms of the provisions of section 24A (2) of the said Act and the rules as amended by S. O. No. 1063 which came into force with effect from 16.10.89, were only entitled to damages. Learned counsel in this connection has placed strong reliance upon a decision of the Supreme Court in the case of B. Dass v. State of U.P. reported in AIR 1976 S.C. 1393 . It was further contended by Mr. Bharuka that even in terms of the Rules 9 (8) of the said Rules which came into operation with effect from 16.10.89, the consent of respondent no. 4 was not necessary to be obtained inasmuch as the TISCO being a lessee under the State of Bihar was not the owner of the surface land within the meaning of the aforementioned provision. According to the learned counsel, the State of Bihar itself being the owner of the land in question, it was not necessary for the petitioner to obtain consent of respondent no. 4. In this connection, learned counsel has placed strong reliance upon a decision of the Calcutta High Court in Jiban Roy Choudhury vs. Smt. Taramoyee Debi reported in AIR 1979 Calcutta 339. 14. Learned counsel further submitted that in this view of the matter, respondent no. 4. In this connection, learned counsel has placed strong reliance upon a decision of the Calcutta High Court in Jiban Roy Choudhury vs. Smt. Taramoyee Debi reported in AIR 1979 Calcutta 339. 14. Learned counsel further submitted that in this view of the matter, respondent no. 3 was bound to take into consideration the amendments effected in the said Rules by S. O. 1063 dated 16.10.1989 aforementioned as he passed the impugned order as contained in annexure-5 to C. W. J. C. 2070/89R on 17.10.89. In this connection, learned counsel has further drawn our attention to section 24A (2) of the aforesaid Act as amended in the year 1986 which reads as follows:- "(2) : The holder of a prospecting licence or minig lease referred to in sub-section (1) shall be liable to pay compensation in such manner as may be prescribed to the occupier of the surface of the land granted under such licence or lease for any loss or damage which is likely to arise or has arisen from or in consequence of the mining or prospecting operation." 15. Learned counsel further submitted that although this Court by the aforementioned order dated 16.8.1908. (annexure-1) refused to interfere with the orders passed by respondent nos. 2 and 3 dated 20th January, 1988 and 5.7.1988, these writ applications will not be barred under the principles of res judicata inasmuch as the petitioner filed the applications for grant of quarrying permit pursuant to the aforementioned order of this Court and, thus, the concerned respondents were bound to take into consideration the amended Rules. 16. It was further submitted by Mr. Bharuka that the said amended Rules have further brought within its purview the necessity of taking of preventive measures as also curative measures for prevention opf water pollution etc. by reason of Rule 21 (3) (c) of the Rules as also condition no. 11C of the deed of mining lease as contained in schedule I of the aforementioned notification. Rule 21 (3) (c) and condition no. by reason of Rule 21 (3) (c) of the Rules as also condition no. 11C of the deed of mining lease as contained in schedule I of the aforementioned notification. Rule 21 (3) (c) and condition no. 11C of the conditions of mining lease as inserted by the aforementioned notification dated 16th October, 1989 read as follows:- "21 (3) (c): The lessee shall take such measures for planting in the same area or any other area selected by the Central or State Government not less than twice the number of trees destroyed by reason of any mining operation or to the extent possible, the restoration of flora and other vegetation destroyed by such operations." "11C : The lessee shall take measures at his own expense for the protection of the environment like planting of trees, reclamation of mined land, use of pollution control device and such other measures as may be prescribed by the Central or State Government from time to time." 17. It was further submitted that in any event in view of the earlier orders passed by the concerned respondents, the petitioner are entitled to be granted mining lessee in alternative suitable sites provided for by respondent no. 4. 18. Learned counsel for the respondents on the other hand submitted that it is true that the State of Bihar is the owner of the mining right, but consent of the owner of the surface is required to be obtained inasmuch is it will be for the owner of the surface to allow the mining lessee to enter in the leasehold area. 19. Mr. K. D. Chatterjee, learned senior counsel appearing for respondent no. 4, further submitted that this aspect of the matter has been affirmed by reason of the aforementioned notification dated 16th October, 1989 whereby and whereunder a new sub-rule being sub-rule (8) to rule 9 was inserted. The said sub-rule (8) of Rule 9 reads as follows:- "Every application shall be accompanied by a statement in writing that the applicant has, where the land is not owned by him obtained surface rights over the area or has obtained the consent of the owners for starting prospecting operation; provided that no such statement shall be necessary where the land is owned by the Government." 20. Leaned Counsel further submitted that right to receive compensation by the surface owner for damage caused to is not and cannot be an additional obligation and/or substituting for a consent nor does that entitle the mining lessee to go upon the land of the surface owner without his consent. It was further submitted that in terms of the provisions of the said Act and the Rules framed thereunder, the State is not obliged to grant mining lease in respect of minerals nor the petitioners can claim the same as a matter of right. According to the learned counsel, the right of the petitioner to claim right to win mineral from a particular area arises only when a mining lease is granted in accordance with law. Learned counsel submitted that in the instant case, the Commissioner of Mines had assigned reason for the purpose of coming to the conclusion as to why it will not be prudent to grant further renewal of mining leases in his order dated 5.7.1988 and this Court by order dated 16.8.88 in C. W. J. C.1517/88R (annexure-1) refused to interfere with that part of the order and thus these writ applications are barred under the principles of res judicata. 21. From the conspectus of facts as mentioned hereinbefore, it is evident that although the petitioners and/or their predecessors-in-interest had been carrying on mining operation of winning minor mineral-brick earth from the areas in question for a long time, but their applications for grant of renewal of the mining leases were rejected. 22. It is true that when the mining leases were granted to the petitioners, respondent no. 4 was not in picture inasmuch as the lease was granted in s favour by the State of Bihar only on l.8.85. However, the said lease was granted with retrospective effect from 1.1.1956. 23. Respondent no. 2 by its order dated 20th January, 1988 inter alia held that in view of the fact that the writ petitioners had been removing the brick earth from the leasehold areas for a long time, the same shall cause erosions to a large extent. Respondent no. 2 further took notice of the fact that a residential colony has been set lip in the neighbouring area and as such it would not be desirable to renew the mining lease any further. Respondent no. 2 further took notice of the fact that a residential colony has been set lip in the neighbouring area and as such it would not be desirable to renew the mining lease any further. Commissioner of Mines in his order dated 5.7.88 while rejecting the revision applications inter alia held as follows:- A. Denudation or erosion of the site has reached a serious stage and the same must be stopped. B. A residential colony has come into being near the site which may result in health hazard to the inhabitants from the atmospheric pollution; C. The term of the mining leases having already expired and the State having granted the lease to respondent no. 4 with effect fro 1.l.1956, it is no longer desirable to allow the site for brick-kiln. Shifting to an alternative site is desirable and feasible. 24. As noticed hereinbefore, this Court did not in err re with the said revisional order in the aforementioned writ application. 25. It is true that while respondent no. 3 considered the matter of grant of renewal of mining lease of the petitioners, the amendment in the said Rules as made on 16th October, 1989 have come into effect. Further, the said revision applications were not dismissed only on the ground that no consent was obtained from TISCO or by reason of the renewal, water pollution would be caused in the river as the brick kilns are situated near the river, but the same were rejected on other grounds also as mentioned hereinabove. 26. Renewal of the mining leases amounts to grant of a fresh lease. Before passing an order of renewal, the State is entitled to take into consideration the subsequent events and further is entitled to take into consideration the law as it stood at the time of grant of renewal. 27. The State is further entitled to not to grant any mining lease further and/or renew the existing mining lease in respect of a particular area taking into consideration the facts and circumstances of each case. In terms of rule 20 of the said Rules, the Collector may for reasons to be recorded in writing and communicated to the applicant, refuse to renew the mining lease over the whole or part of the area applied for. Such an order passed under rule 20 of the Rules is revisable under rule 45 of the said Rules. 28. In terms of rule 20 of the said Rules, the Collector may for reasons to be recorded in writing and communicated to the applicant, refuse to renew the mining lease over the whole or part of the area applied for. Such an order passed under rule 20 of the Rules is revisable under rule 45 of the said Rules. 28. As noticed hereinbefore, the respondent nos. 2 and 3 rejected the application for renewal of mining lease by the petitioner. That portion of the order passed by respondents 2 and 3 in each case was upheld by this Court in the aforementioned writ application. The petitioners, therefore, cannot be permitted to question the legality or otherwise of the orders nor these writ applications are directed against the same. 29. In these circumstances, it must be held that the petitioners cannot claim renewal of mining lease in terms of the provisions of the said Act and the Rules. 30. From a perusal of annexure-4 to the writ application, it is evident that the petitioners have filed an application for carrying on mining operation at the old site not by way of application for renewal of the milling leases, but by way of grant of quarrying permit in terms of rule 27 of the said Rules. It is also admitted in the writ application that such permission was granted only for a specified period and by reason of the impugned order, the concerned respondent had refused to grant further permits in favour of the petitioners. Evidently a grant of quarrying permits is to be made in form E for specified quantity of minerals. The matter relating to grant of quarrying permits occurs in Chapter IV, and thus the procedures for grant or renewal of mining lease in terms of the provisions of the said Rules are not applicable. In terms of rule 27, quarrying permits are to be granted for specified purposes and for specified period. There was thus no question of renewal of these permits. Such quarrying permits can be granted only for winning any mineral not exceeding 3000 cubic metres. Even such an application for grant of quarrying permits required the consent of raiyat if the lands are raiyati in nature. There was thus no question of renewal of these permits. Such quarrying permits can be granted only for winning any mineral not exceeding 3000 cubic metres. Even such an application for grant of quarrying permits required the consent of raiyat if the lands are raiyati in nature. In terms of the quarrying permits, the depth of the pit below the surface will not exceed three metres and before digging further, the permit holder is required to obtain permission of the competent officer. Other conditions for grant of quarrying permits are mentioned in rule 29 of the said Rules. It is, therefore, clear that the orders as contained in annexures 4 and 5 of the writ application have been passed rejecting the applications for grant of quarrying permits and not applications for renewal of lease. At the cost of repetition, it may be mentioned that in view of the earlier orders passed by respondent nos. 2 and 3 dated 20th January, 1988 and 5th July, 1988, the question of renewal of mining lease of the petitioners did not and could not arise. 31. In terms of rule 4 of the said Rules, a person is prohibited from winning any minor mineral except in accordance with the said Rule. This Court or any authority has, thus, no jurisdiction to allow the petitioners to carry on mining operations except in accordance with the provisions of the said Act and the Rules framed thereunder. In this view of the matter, in my opinion, it is not necessary to decide the question as to whether the consent of the owner of surface land is required to be obtained before filing of an application for grant and/or renewal of mining lease. 32. The petitioners, therefore, are not entitled to get any relief from this Court. 33. Before parting with this judgment, it may however, be mentioned that Commissioner of Mines himself in his impugned order as contained in annexure-5 to the writ application observed as follows: "I however, feel inclined to observe in accordance with the direction of the High Court in C. W. J C. 1585/88 that the Deputy Commissioner may be directed to find out in consultation with the parties concerned alternative sites where the brick kilns may be located. Send the case record back to the lower court." 34. Send the case record back to the lower court." 34. It is expected that the State of Bihar and TISCO shall fulfil their assurances given to the petitioners to provide with a suitable alternative site for carrying out their business in brick kilns at an early date. 35. In the facts and circumstances, these writ applications are dismissed. But having regard to the facts and circumstances of the cases, there will be no order as to costs. R. N. Sahay., J. - I agree.