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2009 DIGILAW 1198 (JHR)

Arjun Lal Sinha v. State of Jharkhand

2009-08-26

AMARESHWAR SAHAY

body2009
Order Heard the parties. 2. In this writ application the petitioner has prayed for quashing of the order said to have been passed by the Deputy Commissioner, Ranchi and communicated to the petitioner vide a letter dated 5.12.2002, contained in Annexure-6 to the writ petition under the signature of the District Mining Officer. 3. The case of the petitioner is that initially one P.K. Sen acquired 2.75 acres of lands situated in Khata No. 95, Plot Nos. 625, 626 and 627 in Mauza Chutupalu, Ormanjhi, District-Ranchi on a lease from one Sudhub Bedia, the recorded raiyat and had applied for mining lease before the competent authority for mining stones, which, by order dated 23.7.1986, was granted in his favour for 5 years. After expiry of the period of five years, on an application made by P.K. Sen for renewal of the mining lease under Rule 22 of the Bihar Minor Mineral Concession Rules, the same was renewed for a further period of 10 years by order dated 23.7.1991. Thereafter, as it appears that the mining lease was transferred in the name of the petitioner on 14.10.1998. After expiry of the period of lease, the petitioner applied for renewal under Rule 22 of the Bihar Minor Mineral Concession Rules but the District Mining Officer rejected the application for renewal of mining lease. The petitioner, thereafter, moved before the Mining Commissioner but he directed the petitioner to file an application under Rule 45 of the said Rules before the Deputy Commissioner, Ranchi. Consequently, the petitioner filed a petition before the Deputy Commissioner under Rule 45 of the Bihar Minor Mineral Concession Rules, but the Deputy Commissioner also rejected the application, filed by the petitioner which was communicated vide letter dated 5.12.2002 as contained in Annexure-6. 4. Consequently, the petitioner filed a petition before the Deputy Commissioner under Rule 45 of the Bihar Minor Mineral Concession Rules, but the Deputy Commissioner also rejected the application, filed by the petitioner which was communicated vide letter dated 5.12.2002 as contained in Annexure-6. 4. According to the petitioner, under Rule 9(8) of the Bihar Minor Mineral Concession Rules, the application for grant of mining lease has to be made accompanied by a statement in writing that the applicant, has, where the land is not owned by him, obtained surface right over the area or has obtained the consent of the owners for starting prospecting operation and as per the aforesaid provision, the consent of the landlord, i.e. the recorded tenant has already been obtained and, therefore, in such a situation the respondents cannot refuse to renew the lease when it was already granted as far as back on 23.7.1986 and renewed from time to time. It is further submitted that the right over the land was not transferred by the raiyat, i.e. a member of Scheduled Tribes and, therefore, Section 46 of the Chhotanagpur Tenancy Act has got no application. 5. According to the respondents, since the land in question, belong to a member of Scheduled Tribes and, therefore, under the provisions of Section 46 of the Chhotanagpur Tenancy Act no member of Scheduled Tribes is empowered to transfer his land even by lease for a period beyond 5 years without permission of the Deputy Commissioner. 6. There is no dispute of the fact that the plot in question, over which prayer for renewal of mining lease has been made, belong to the member of Scheduled Tribes. 7. Section 46(3) of the Chhotanagpur Tenancy Act clearly provides that no transfer of land by a member of Scheduled Tribes in favour of non-tribal shall be registered and even if such transfer is made in contravention of Section 46(1) of the Act, the same shall be invalid in law. 8. There is complete restriction on transfer of their right by a raiyat by way of mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years or by sale, gift or any other contract or agreement without prior permission of the Deputy Commissioner. 8. There is complete restriction on transfer of their right by a raiyat by way of mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years or by sale, gift or any other contract or agreement without prior permission of the Deputy Commissioner. Prior permission of the Deputy Commissioner is mandatory in nature for transfer of the land by a member of Scheduled Tribes. 9. From perusal of Annexure-3, the agreement said to have been executed by the recorded tenant, i.e. the member of Scheduled Tribes in favour of the petitioner, it appears that by such an unregistered Sada agreement, the petitioner has taken the land in question on lease for a period of 10 years for doing mining operation. 10. It is common knowledge that the mining operation cannot be done without breaking the surface of the land and according to the petitioner, he has obtained surface right from the recorded tenant on a sada deed of lease for 10 years. 11. Even in a case where a member of Scheduled Tribes has given his land on lease for agricultural purpose for more than five years, it has been held by this Court that such transfer of right over a land by a lease for certain period amounts to transfer, which is not permissible without prior permission of the Deputy Commissioner and, therefore, it has been held to be a violation of Section 46 of the Chhotanagpur Tenancy Act. Reference in this regard may be made to the case of II Amin Mahto vs. Commissioner, reported in 1988 BLJR 115. 12. Applying the same analogy in the present case, it can very well be said that for doing mining operation over the land in question, the member of Scheduled Tribes has transferred his right by way of lease for a period of more than five years and which is not permissible under the law since it violates Section 46 of the Chhotanagpur Tenancy Act. 13. Therefore, in my view, the application, filed by the petitioner for renewal of the lease was rightly rejected by the authorities concerned and, as such, no relief can be granted to the petitioner in this writ petition. 14. Accordingly, having found no merit, this writ petition is dismissed.