Shyam Kishore Singh v. State Of Bihar — 1997 DIGILAW 745 (PAT)

Judgment 1. The petitioner in this writ petition claims to be a raiyat of plot No. 200 (part) under Khata No. 29 of Mouza Kishanpur having an area of about eight acres. He has challenged the legality and validity of Rule 11A of the Bihar Mines and Minerals Concession Rules, which was amended and came into effect from 14-1-1985. Rule 11A of the Rules provides that notwithstanding anything contained in the Rules, the settlement of sand as minor mineral will be done by public auction by the Collector to the highest bidder on annual basis. The petitioner is aggrieved only by this part of Rule 11-A, as according to him to the Rule defeats his raiyati interest without compensating him in any manner whatsoever. 2. The case of the petitioner is that he is the occupant of his aforesaid raiyati land which he has been cultivating for several years. However, at times the land is rendered incapable of cultivation due to floods and consequent deposit of sand. In the year 1977 such a situation arose but he was allowed to remove the sand by the State Government which granted him a lease for three years from 31-8-1977 to 31-8-1980 and thereby enabled him to make his raiyati land cultivable. The land was cultivated by the petitioner from the year 1980 till the year 1987 when the land was again covered with sand on account of flood. There was huge deposit of sand five to seven feet in depth over his land which made it virtually impossible for him to cultivate the land and utilised his raiyati land for agricultural purposes. In view of the amendment to Rule 11A which came into effect from 14th January, 1985 the State Government did not settle the land with the petitioner, but proposed to settle the sand deposited by public auction in accordance with Rule 11A. According to the petitioner, this was in violation of Arts. 14 and 300A of the Constitution of India, since it amounted to deprivation of the vested right of the petitioner to cultivate his raiyati land of which he was in occupation and possession. According to the petitioner, if Rule 11A is read de hors the other provisions of the Rules, particularly Rules 27 to 30, it would amount to appropriation of the vested right of the petitioner without compensation. According to the petitioner, if Rule 11A is read de hors the other provisions of the Rules, particularly Rules 27 to 30, it would amount to appropriation of the vested right of the petitioner without compensation. It is emphasised that under sub-rule (4) of a quarrying permit shall, if the lands from which the minor mineral is to be extracted are raiyati lands, be accompanied by a written consent letter from the occupant of such lands to the effect that he has no objection to the extraction of the mineral by the applicant. It is submitted that Rule 2 8 applies to application for quarrying in respect of minor minerals, and there is no reason why the same should not apply to sand. It is submitted that the requirement of the concerned applicant procuring the consent of the occupant sufficiently protects the interest of the occupant of the land over which sand is deposited by the river. 3. It is further stated that the auction which was to be held was postponed on different dates, but it is not disputed before us today that the auction was ultimately held and respondent No. 5, who was highest bidder obtained settlement of the sand on the plot in question. It also appears from the order of this Court dated 3-8-1990 that this fact was brought to the notice of this Court, and this Court after hearing the parties directed that neither the settlee (respondent No. 5) nor the petitioner shall remove sand from the raiyati land of the petitioner which is approximately eight acres bearing plot No. 200 (part) appertaining to Khata No. 29 of village Kishanpur. It was further directed that in the event the writ petition failed, the settlee can be compensated by an appropriate order by the Bench hearing this writ petition.It was submitted on behalf of the petitioner that despite the order of this Court dated 3-8-1990 the settlee did carry on quarrying operation and removed the sand from the land in question. Unfortunatley, no one has appeared on behalf of respondent No. 5 at the hearing of this writ petitionand, therefore, it is difficult for us to express any opinion in the matter. 3A. Unfortunatley, no one has appeared on behalf of respondent No. 5 at the hearing of this writ petitionand, therefore, it is difficult for us to express any opinion in the matter. 3A. In its counter-affidavit the State has averred that for reasons mentioned in the counter-affidavit it was considered necessary to amend Rule 11A of the Rules so as to avoid loss of revenue to the State. Large quantity of mineral sand was removed by the permit holders earlier or the lessees, but the account submitted by them showed removal of lessor quantity resulting in loss of revenue. It was with a view to protect the interest of the State revenue that Rule 11A was amended which authorises settlement of mineral sand by public auction to the highest bidder. Rule 11A lays down a rule which cannot be said to be arbitrary or discriminatory. It has further been emphasised that by application of Rule 11A the State has been able to realise much more revenue than what was being realised before the amendment came into force. Rule 11A has, therefore, been amended in public interest with a view to safeguard the revenue of the State and also for the development of the minerals. It is further asserted that so far as the mineral sand is concerned, it is a minor mineral and is, therefore, regulated by Bihar Minor Mineral Concession Rules. However, the State has not admitted that the petitioner is the raiyat of the land in question, and the learned Advocate General appearing on behalf of the State at the hearing of this writ petition also made it clear that he was not accepting the title of the petitioner to the land in question which he claimed as a raiyat of the State. 4. The question which arises for consideration is whether Rule 11A is discriminatory or arbitrary. Obviously, it is not so because everyone has an opportunity to bid at the auction held for the purpose. A settlement made on the basis of a public auction cannot be said to be unreasonable, because it fetches the highest price for the mineral which the State wishes to dispose of. It gives equal opportunity to everyone to bid at the auction and to take settlement of the mineral sand. A settlement made on the basis of a public auction cannot be said to be unreasonable, because it fetches the highest price for the mineral which the State wishes to dispose of. It gives equal opportunity to everyone to bid at the auction and to take settlement of the mineral sand. We are, therefore, satisfied that there is no substance in the submission that Rule 11A is either arbitrary or discriminatory.The second submission urged before us is that Rule 11-A, if read as it is, may not be illegal, but if it is understood to mean that the raiyati interest of the petitioner, over whose raiyati lands sand is deposited by river, is to be completely ignored, then Rule 11A becomes void as being expropriatory. It was submitted that Rule 11A should not be read as to nullify the effect of sub-rule (4) of Rule 28. 5. The learned Advocate General very fairly submitted that by amending Rule 11A of the Rule it was not the intention of the State to defeat the vested interest of a raiyat, and such an interest of a raiyat is protected in the case of other minor minerals, as would be evident from Rule 28 of the Rules, which requires that the applicant of a quarrying permit shall obtained consent of the occupant of the raiyati land from which minor minerals have to be extracted. He submits that Rule 11A deals with the method of settlement of minor and minerals sand and the use of the word notwithstanding in Rule 11A must only be read to mean "notwithstanding any other mode of settlement provided under the Rules". He submits that Rule 11A should be read with Rule 28 of the Rules and so read it must mean that person in whose favour the settlement is to be made under Rule 11A must obtain the consent from the occupant of the raiyati land from which the minor mineral sand is to be extracted. So read, it cannot be said that Rule 11A is bad as being expropriatory. Counsel for the petitioner also submitted that if in regard to settlement under Rule 11A, the provision of sub-rule (4) of Rule 28 is applicable, then the petitioner can have no grievance. So read, it cannot be said that Rule 11A is bad as being expropriatory. Counsel for the petitioner also submitted that if in regard to settlement under Rule 11A, the provision of sub-rule (4) of Rule 28 is applicable, then the petitioner can have no grievance. In view of the submission urged on behalf of the Advocate General that Rule 28(4) shall be applicable to settlement made under Rule 11A of the Bihar Minor Mineral Concession Rules, 1972, we hold that Rule 11A cannot be challenged on the ground of its being expropriatory in the sense that it defeats the raiyati interest of the occupant without adequately compensating him. We, therefore, hold that even the person in whose favour the settlement is to be made of sand as minor mineral under Rule 11A of the Rules shall be required to obtain the consent of the occupant of the mineral sand is to be extracted from the raiyati lands. The consent of the concerned raiyat obviously must be obtained before a settlement deed is formally executed in favour of settlee under Rule 11A of the Rules, as it would not be possible for a person to produce the consent of the raiyat before the auction is held, since it is not known whether ultimately the settlement will be made in his favour. In its application to settlement made under Rule 11A, Rule 28 shall be understood to mean that the settlee under Rule 11A shall produce the consent letter from the occupant of the land, if the land from which the minor mineral is to be extracted is raiyati land before the execution of formal deed of settlement in his favour. 6. Having disposed of the legal question involved in this writ petition we make it clear that we have not expressed any opinion on the claim of the petitioner that he is the raiyat of the land in question since it is disputed by the State. If such a dispute arises, obviously that question must be agitated before the appropriate forum. We hold that Rule 11A of the Bihar Minor Mineral Concession Rules is legal and valid, and that even to settlement made under Rule 11A the provision of sub-rule (4) of Rule 28 shall apply, where the mineral sand is to be extracted from the land over which the occupant has a raiyati interest. 7. We hold that Rule 11A of the Bihar Minor Mineral Concession Rules is legal and valid, and that even to settlement made under Rule 11A the provision of sub-rule (4) of Rule 28 shall apply, where the mineral sand is to be extracted from the land over which the occupant has a raiyati interest. 7. Since respondent No. 5 is not present before us, it is not possible for us to make any direction, as contemplated in the order of this Court dated 3-8-1990. However, this will not bar his remedy, if any, in accordance with law. 8. We may at this stage notice the other submission urged on behalf of the petitioner that he has a right to remove the mineral sand from his land. We do not wish to express any opinion on this question at this stage, but we may notice the opposition of the Advocate General who submits that since sand is minor mineral, it cannot be quarried or mined except in accordance with a settlement or licence granted under the provisions of Bihar Minor Mineral Concession Rules. 9. This writ petition is disposed of accordingly.Order accordingly.