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2005 DIGILAW 1715 (ALL)

PHOOL CHAND v. STATE OF UTTAR PRADESH

2005-09-07

R.P.YADAV, U.K.DHAON

body2005
JUDGMENT By the Court—Heard Miss.Pushpila Bisht, learned counsel for the petitioner and Sri A.K. Verma, learned Additional Chief Standing Counsel, appearing on behalf of the opposite parties. 2. The petitioner has approached this Court against the notification dated 14.7.2005 and the notice dated 24.8.2005. The petitioner has alleged that as he is interested for the grant of lease in respect to Plot Nos. 204M and 205M situated in Village Dhaukhariya, Tehsil Ramnagar, District Barabanki, he submitted an application on 16.8.2005 before the District Magistrate, Barabanki, under the provisions of Mines and Minerals (Regulation and Development) Act, 1957. The petitioner thereafter received a notice dated 24.8.2005 issued by the Additional District Magistrate, Barabanki, a copy of which has been annexed as Annexure 1 to the writ petition. Learned counsel for the petitioner submits that by the notice dated 24.8.2005, the petitioner was required to obtain the consent of the tenure holder, which is legally not permissible. She further submits that Rule 9-A, which was introduced by the State Government by 25th amendment, was later on deleted from the statute by 26th amendment dated 22.6.2004 and there is no provision under the Mines and Minerals (Regulation and Development) Act, 1957 and the U.P. Minor Mineral (Concession) Rules, 1963 regarding the consent of the landholder before the grant of the lease by the competent authority. Learned counsel for the petitioner has relied upon the decisions of the Hon’ble Supreme Court reported in A.I.R. 1995 SC 858, State of Tamilnadu v. M.P.P. Kavery Shetty and 1995 All LJ page 872, Dinesh Pratap Dwivedi v. State of U.P. and others. 3. Sri A.K. Verma, learned Additional Chief Standing Counsel, appearing on behalf of the opposite parties submits that there is no illegality in Clause - 3 of the notice dated 24.8.2005 which only provides whether the petitioner has obtained the consent of the land holder or not in accordance with the Government Order. He has relied upon a decision of the Hon’ble Supreme Court reported in 1997 (4) SCC 559 , Pallava Granites Industrial India (P) Ltd. v. Government of Andhra Pradesh and others. He further submits that till date the petitioner has not completed the required formalities as mentioned in the notice dated 24.8.2005. 4. We have considered the arguments of the learned counsel for the parties and gone through the record. 5. He further submits that till date the petitioner has not completed the required formalities as mentioned in the notice dated 24.8.2005. 4. We have considered the arguments of the learned counsel for the parties and gone through the record. 5. The District Magistrate, Barabanki, through notification dated 14.7.2005 invited applications for the grant of mining lease in the areas mentioned in the notification and in response to the said notification the petitioner submitted his application on 18.8.2005 for the grant of mining lease in respect to Plot Nos. 204M and 205M situated at Village Dhaukhariya, Tehsil Ramnagar, District Barabanki. The application of the petitioner was processed in the office of the District Magistrate, Barabanki, and thereafter a notice dated 24.8.2005 was issued to the petitioner. The petitioner being aggrieved by the Condition No. 3 imposed in the notice dated 24.8.2005 has approached this Court. Section 13 of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as the Act) deals with the power of the Central Government to make rules in respect of minerals. Similarly Section 15 of the Act empowers the State Government to make rules in respect of minor minerals in exercise of the powers under Section 15 of the Act. The State Government had framed the U.P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as the Rules). Rule 6 of the Rules deals with ‘Application fee and deposit for grant of mining lease’. Rule 9 of the Rules deals with ‘Preferential right of certain persons’. Rule 67 which is relevant for the disposal of the instant writ petition is as under : “No restriction etc., to be imposed by owner of land on mining operation except demand of compensation.—(1) No person, who has right in any capacity on the land covered by a mining lease or mining permit, shall be entitled to impose any prohibition or restriction on the mining operations by the holder or such lease or permit of such land or to demand any sum by way of premium of royalty for the removal of minor mineral: Provided that such person shall be entitled to get annual compensation from the said holder of mining lease or permit for the use of surface of the land for mining operations, as may be agreed upon between them. (2) Where the holder of a mining lease or permit and the owner of the surface of the land could not agree upon the amount of annual compensation and a dispute arises in respect thereof, it shall be determined by the District Officer in such manner that— (a) in the case of agricultural land, the amount of annual compensation shall be worked out on the basis of the average annual net income from the cultivation of similar land for the past three years, and (b) in the case of non-agricultural land, the amount of annual compensation shall be worked out on the basis of average annual letting value of similar land for the previous three years.” 6. Under the Act and Rules, there are no provisions for obtaining consent from the land holder and the land holder is only entitled for the compensation as agreed or as determined by the District Officer in case of a dispute. Since Rule 9-A has been deleted from the statute by 26th amendment dated 22.6.2004, there is no requirement under the law for asking any permission from the landholder by the petitioner. The decision of the Hon’ble Supreme Court in the case of State of Tamilnadu v. M.P.P. Kaveru Shetty (supra) and the decision passed by this Court in the case of Dinesh Pratap Dwivedi v. State of U.P. and others (supra) are squarely applicable to the facts of the present case. The Hon’ble Supreme Court has held that the holder of mining lease under the said Act or rules made under it is empowered to enter the land on which the lease has been granted and carry out mining operations. He is obliged to compensate the landowner for any loss or damage that his operations may cause. Consent of the occupier is required only when the holder of the lease desires entry into any building or enclosed court or garden. 7. The case law cited by the learned Additional Chief Standing Counsel is not applicable to the facts of the present case and the earlier decision passed by the Hon’ble Supreme Court which is of larger bench was not considered by the Hon’ble Supreme Court in the case of Pallava Granites Industrial India (P) Ltd. v. Government of Andhra Pradesh and others (supra). The Hon’ble Supreme Court in the case reported in (1998) 2 S.C.C. 289 , Commissioner of Income Tax, Bihar v. Trilok Nath Mehrotra and others has held that the decision of larger Bench would prevail. Since there is no requirement under the Statutory Rules for the consent of a landowner being furnished the District Magistrate was not right in imposing Condition No. 3 in the notice. 8. In the result, the writ petition is partly allowed and a writ in the nature of certiorari is issued quashing the Condition No. 3 imposed in the notice dated 24.8.2005, a copy of which has been annexed as Annexure 1 to the writ petition and the opposite parties No. 2 and 3 are directed to consider the application of the petitioner, in accordance with the provisions of the Act and Rules at the earliest. The office is directed to issue a certified copy of this judgment to the counsel for the parties within a week on payment of necessary charges. Petition Partly Allowed. ———