Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 305 (CHH)

Jiwanlal Jain v. Union of India

2014-08-13

PRITINKER DIWAKER, YATINDRA SINGH

body2014
JUDGMENT 1. This writ appeal arises out of the order dated 08.03.2013 passed by the single judge dismissing Writ Petition (C) 1598 of 2012 filed by Jiwanlal Jain (the Appellant). The writ petition was essentially for the relief that he may be permitted to work and excavate the iron ore over 37.470 hectares of land situate in village Barbaspur, Tahsil Bhanupratappur, District Kanker instead of part of the same namely 17.930 hectares of land. THE FACTS 2. The erstwhile state of Madhya Pradesh issued a notification on 04.07.1969 under section 4 of the Indian Forest Act, 1927 (the Forest Act) reserving a large area as a reserved forest. It included 4969.46 hectares of land of forest division, Kanker, Tehsil Bhanupratappur. It comprises of land of many villages including of village Barbaspur, where the land in dispute is situate. 3. M/s. Nagpur Alloys Casting Limited (now M/s. Jayaswal Neco Ltd.) (the contesting-Respondent) (both are jointly referred to as the Parties) as well as the Appellant separately applied for prospecting licence under the Mines and Minerals (Development and Regulation) Act, 1957 (the Act). Their areas were within the reserve forest area of village Barbaspur as notified on 04.07.1969. 4. The contesting-Respondent and the State Government are both opposing this appeal and are jointly referred to as the Respondents. 5. The contesting-Respondent filed an application on 25.07.1990 for grant of prospecting licence for iron ore over 43.750 hectares of land in village Barbaspur. It was stated in the application that the land was in the forest area. 6. The Appellant filed an application on 09.09.1993 for grant of prospecting licence for 37.595 hectares in village Barbaspur. This area was within the area that was applied for by the contesting-Respondent on 25.07.1990. However, the Appellant applied stating that it was the revenue land. 7. The application of the Appellant was processed and reports were submitted. In these reports, it was not disputed that the land was a revenue land. After obtaining prior approval of the Central Government, the prospecting licence was granted to the Appellant over the area applied for by him on 07.10.1994 . 8. The mining lease was also granted to the Appellant over the same area (namely 37.595 hectares of land) on 04.03.1996, after obtaining the prior approval of the Central Government. Thereafter, a mining lease deed was also executed on 14.03.1996 for 20 years. 8. The mining lease was also granted to the Appellant over the same area (namely 37.595 hectares of land) on 04.03.1996, after obtaining the prior approval of the Central Government. Thereafter, a mining lease deed was also executed on 14.03.1996 for 20 years. This was done on the footing that the land was revenue land and not forest land. 9. The Appellant was also granted permit to enter upon the leased area on 27.03.1996 and he started working on the same. 10. The Appellant did some mining but at the end of 1996, it was realised that the land was within reserved forest area. The Divisional Forest Officer wrote a letter dated 21.01.1997 to the Collector, Bastar (the Collector) objecting that: (i) The area leased out to the Appellant was within the reserved area and this was illegal. (ii) Two criminal cases namely forest offence no.4151/17 dated 18.06.1996 and 4151/18 dated 20.09.1996 have been registered against the Appellant. (iii) The lease being illegal be cancelled. 11. In view of the recommendations of the Forest Department, the Collector by his letter no.461, dated 30.01.1997 recommended to the State Government that the lease in favour of the Appellant be cancelled. He also by separate letter no. 462 of the same date restrained the Appellant from mining. 12. The contesting-Respondent had filed an application for prospecting licence on 25.07.1990 for 43.750 hectares of land. At that time, the Act contained a provision that if no order was passed on the application for prospecting licence then application would be deemed to be rejected. 13. The application of the contesting-Respondent was deemed to be rejected as no order was passed on the same. Against this deemed rejection, the contesting-Respondent filed a revision before the Central Government under section 30 of the Act alongwith an application to condone delay. There is dispute whether it was filed on 19.08.1993 or on 19.09.1993 but in this revision, neither the Appellant was party nor was he heard before it was decided. 14. The revision of the contesting-Respondent was allowed by the Central Government on 22.10.1994 and the State Government was directed to dispose of the application of the contesting-Respondent for prospecting licence within 24 months. 15. The application of the contesting-Respondent for prospecting licence was referred to the Central Government for prior approval on 11.07.1996 and the same was granted on 18.07.1997. 16. 15. The application of the contesting-Respondent for prospecting licence was referred to the Central Government for prior approval on 11.07.1996 and the same was granted on 18.07.1997. 16. It is relevant to point out that it was not known that the application for prospecting licence of the contesting-Respondent was encompassing the entire area for which the mining lease was granted to the Appellant or that the area leased out to the Appellant was over the forest land. 17. After the application of the contesting-Respondent was referred to the Central Government for prior approval, it became clear that the land leased out to the Appellant was in the forest area and not revenue land. The forest department as well as the Collector raised objection to this effect and recommended to the State Government to cancel the lease of the Appellant (see paragraphs 9 and 10 of the judgment). 18. At this time, it also became clear that the area applied by the contesting-Respondent encompassed the entire area for which the mining lease was granted to the Appellant. In order to resolve the dispute, the State Government called for a meeting inviting both the sides on 11.12.1997. 19. There is a canal on the spot. The land could be bifurcated into two portions namely towards the north and south of the canal. An area of 13.50 hectares towards north of the canal and 29.10 hectares towards south of the canal could be considered for mining. 20. According to the Respondents there were two criminal cases against the Appellant; his lease was being cancelled considering these factors, the Appellant agreed that the land leased out to him be bifurcated and 13.50 hectares of land towards the north of the canal be given to the Appellant and 29.190 hectares of land towards south of the canal be given to the contesting-Respondent for prospecting licence. 21. In pursuance of the agreement, the State Government asked the Collector by letter dated 24.01.1998 if 13.30 hectare of land in north of the canal and 29.190 hectare of land was available for the parties. 22. After report from the Collector, the State Government passed an order on 17.12.1998 that 13.50 hectares of land towards north of the canal be allocated to the Appellant and 29.190 hectares of land towards south of the canal be allocated to the contesting-Respondent. 23. 22. After report from the Collector, the State Government passed an order on 17.12.1998 that 13.50 hectares of land towards north of the canal be allocated to the Appellant and 29.190 hectares of land towards south of the canal be allocated to the contesting-Respondent. 23. The Appellant also filed an application stating that there is a further land of 4.43 hectares available towards north of the canal. He also filed a mining map for 13.50 + 4.43 total 17.93 hectare land and this entire area was granted for mining to the Appellant on 22.06.1999 subject to the condition of his obtaining the forest clearance. 24. Subsequently, two supplementary lease deeds were executed on 16.05.2001 and 10.02.2003. By these deeds the order dated 22.06.1999 was implemented and the earlier lease deed dated 14.03.1996 was confined to 13.50 hectare and further 2.83 and 1.60 (total 4.43) hectares of land was leased out. 25. The Appellant was also given forest clearance on 02.02.2005 over an area of 17.930 hectares of land and is operating mining over this area. 26. In the meantime, the contesting-Respondent applied for grant of mining lease over 14.4 hectares of land out of the 29.190 hectares of land for which it was granted prospecting licence. This application was referred to the Central Government on 24.07.2004 for prior approval. 27. It is after the application of the contesting-Respondent for grant of prior approval for mining lease was referred to the Central Government that the Appellant filed an application before the State Government on 31.05.2005 that his mining lease was for 37.595 hectares; it was illegally reduced to 17.930 hectares; and he should be permitted to conduct mining over the entire area. He also filed an application before the Central Government on 20.06.2005 that he should be permitted to work over 37.595 hectares of land. 28. On the objection of the Appellant, the Central Government also asked for the reply of the State Government. It was submitted on 24.08.2006. After considering the same, the Central Government granted prior approval for grant of mining lease to the contesting-Respondent on 13.02.2007 over 14.40 hectares of land. 29. The contesting-Respondent also filed an application for grant of forest clearance over an area of 14.40 hectares. This was granted to it on 13.07.2009. It was submitted on 24.08.2006. After considering the same, the Central Government granted prior approval for grant of mining lease to the contesting-Respondent on 13.02.2007 over 14.40 hectares of land. 29. The contesting-Respondent also filed an application for grant of forest clearance over an area of 14.40 hectares. This was granted to it on 13.07.2009. However, no mining lease has yet been executed in favour of the contesting-Respondent as the Appellant filed Writ Petition (C) 1598 of 2012. It was dismissed on 08.03.2013. Hence, the present writ appeal. 30. We have heard counsel for the parties. The counsel for the Appellant submits: (i) In the revision filed by the contesting-Respondent before the Central Government, the Appellant was a necessary party under Rule 54 of the Mineral Concession Rules, 1960 (the Rules). He was neither impleaded as a party nor was he heard before the revision was allowed. The revisional order dated 22.10.1994 was void. On the basis of this order, no equity can arise in favour of the contesting-Respondent. (ii) The Appellant was granted mining lease over an area of 37.595 hectares of land after prior approval of the Central Government. This land could not be bifurcated or reduced unless proceedings under section 4(A) of the Act were taken and the land could not be granted to the contesting-Respondent unless it was published in the official gazette under Rule 59 of the Rules. (iii) The prior approval granted in favour of the contesting Respondent for mining lease is contrary to the Act. It is void under section 19 of the Act. 31. The submissions of the Appellant are interconnected and they will be discussed together. However before recording finding upon them, it is proper to decide: (i) Whether there was any agreement or not as alleged by the Respondents. (ii) Whether the agreement was challenged or not. (iii) Whether it was acted upon or not. 32. There is some doubt as to on which date the contesting-Respondent filed its revision before the Central Government: whether it was on 19.08.1993 or 19.09.1993: (i) The Appellant filed a certified copy of the revisional order by the Central Government. It shows that the revision was filed on 19.08.1993; (ii) Whereas, certain other documents filed by the contesting-Respondent, show that the revision was filed on 19.09.1993. It shows that the revision was filed on 19.08.1993; (ii) Whereas, certain other documents filed by the contesting-Respondent, show that the revision was filed on 19.09.1993. However, the fact remains that the revision of the contesting-Respondent was allowed on 22.10.1994 after prospecting licence was granted to the Appellant and he was not heard in the revision. But in the circumstances of this case, is it fatal? 33. The contesting-Respondent as well as the State Government have offered their explanations, as to why the Appellant was neither heard, nor could it be brought to the knowledge of the Central Government that he should be heard. 34. According to both of them, it was not clear that whether the applications of the parties were for the same land or not as the Appellant had applied treating it to be revenue land and the contesting-respondent had applied treating it to be forest land. According to them, had the same description been given, this fact would have been clear that they are for the same land and the Appellant would have been impleaded and heard. 35. The land admittedly was a forest land. There was already a notification under section 4 of the Forest Act declaring it to be reserved forest. The Appellant never disclosed this fact in his application though it was disclosed in the application of the contesting-Respondent. Had he done so, he would have been impleaded and heard in the revision. 36. In our opinion, the Appellant was neither impleaded nor heard due to his fault and misstatement of material fact in his application. 37. The aforesaid fact came to the knowledge of the State Government after an objection was raised by the forest department that the Appellant is doing mining over forest land without getting forest clearance and the application for prospecting licence of the contesting-Respondent was sent for prior approval to the Central Government. It is because of this that the Collector restrained the Appellant on 30.01.1997 from mining over the area and recommended that his lease be cancelled (see paragraphs 9 and 10 of the judgment). 38. It is about the same time that the State Government came to know that the area claimed by the parties was overlapping. It is because of this that the Collector restrained the Appellant on 30.01.1997 from mining over the area and recommended that his lease be cancelled (see paragraphs 9 and 10 of the judgment). 38. It is about the same time that the State Government came to know that the area claimed by the parties was overlapping. The Appellant was granted mining lease earlier but the application of the contesting-Respondent was not only earlier but had disclosed the correct facts; whereas, the Appellant obtained the prospecting licence and then mining licence by concealing the material fact regarding nature of the land. In the circumstances it became imperative to settle the issue and it was for this reason that the State Government called for the meeting of the parties. 39. It is not disputed that the meeting of the parties was held on 11.12.1997 and they were present. There is nothing on the record to show if any minutes of the meeting were prepared but according to the State Government as well as the contesting-Respondent, a settlement was reached between the parties to bifurcate the land lying north and south of the canal. 40. The State Government wrote a letter to the Collector on 24.01.1998 informing him about the agreement of the parties that the land towards the north of the canal be given to the Appellant and the land towards the south of the canal be given to the contesting-Respondent. He was asked to inform the State Government if 13.500 hectares and 29.190 hectares of land were available towards north and south of the canal or not. 41. The Collector sent his report and thereafter, the State Government passed an order on 17.12.1998 allocating 13.500 hectares of land towards north of the canal to the Appellant and 29.190 hectares of land towards south of the canal to the contesting-Respondent for prospecting licence in terms of the agreement. 42. Subsequently, when it was pointed out that further area of 4.43 hectares is available towards north of the canal, the Appellant submitted mining plan for 13.500 + 4.43 total 17.93 hectares of land. 43. 42. Subsequently, when it was pointed out that further area of 4.43 hectares is available towards north of the canal, the Appellant submitted mining plan for 13.500 + 4.43 total 17.93 hectares of land. 43. The State Government by order dated 20.06.1999 gave this area of 17.93 hectares of land for mining lease to the Appellant, subject to his obtaining clearance and by the same order 29.109 hectares of land towards south of the canal was recommended for grant of prospecting licence to the contesting-Respondent. 44. Thereafter, the Appellant and the Collector on behalf of the Governor executed two supplementary lease deeds on 16.05.2001 and 10.02.2003 by which the order dated 20.06.1999 was implemented and the earlier lease deed dated 14.03.1996 was confined to 13.50 hectares and further land 1.60 + 2.83 (total 4.43) hectares land was given in mining lease to the Appellant. 45. The facts indicate that everything was not clean. There was some kind of hanky-panky the land was forest land; the Appellant applied for grant of prospecting licence in the reports by the officials, this assertion was not disputed; and then mining lease was granted treating it to be revenue land the officials ought to have pointed out that it was forest land and the application of the Appellant ought to have been rejected as being filed by suppressing material fact. 46. Nonetheless, when the entire facts came to the knowledge of the State Government, it bifurcated the entire land into two portions giving the northern side of the canal to the Appellant and southern side of the canal to the contesting-Respondent subject to their obtaining forest clearance. This was done on the basis of the agreement between the parties in the meeting dated 11.12.1997. 47. There is nothing on the record to show if minutes of the meeting dated 11.12.1997 were recorded but the fact that there was agreement between the parties in the meeting is mentioned in the letter dated 24.01.1998, and the orders dated 17.12.1998 and 22.06.1999. The copies of these were also sent to the parties. 48. Apart from above, two supplementary deeds were executed by the Appellant and the Governor implementing the order dated 22.06.1999 confining the earlier lease deed to 13.50 hectares towards north of the canal. 49. The above mentioned facts clearly show that there was an agreement between the parties as alleged by the Respondents. 50. 48. Apart from above, two supplementary deeds were executed by the Appellant and the Governor implementing the order dated 22.06.1999 confining the earlier lease deed to 13.50 hectares towards north of the canal. 49. The above mentioned facts clearly show that there was an agreement between the parties as alleged by the Respondents. 50. There were two criminal cases namely forest offence number 4151/17 dated 18.06.1996 and 4151/18 dated 20.09.1996 against the Appellant; he had obtained lease by concealing material fact; his lease was recommended to be cancelled the agreement was to bifurcate the land between the two and end the dispute. Criminal cases were dropped and lease was not cancelled. This was in favour of the Appellant. It shows that the agreement was acted upon. 51. The Appellant neither challenged the factum of the settlement at that time nor when prospecting licence was granted to the contesting-Respondent on 22.06.1999. He only claimed that he may be permitted to work on the entire area of 37.895 hectares of land after the State Government sought prior approval for grant of mining lease to the contesting-Respondent on 24.07.2004. The claim was staked by the Appellant for the first time before the State Government on 31.05.2005 and before the Central Government on 20.06.2005. 52. The counsel for the Appellant has brought to our notice the letter dated 15.02.1999 and dated 02.09.2006 to show that he had raised objection against the agreement. 53. In the letter dated 15.02.1999, it is not mentioned that the Appellant had not given his consent for bifurcation of the land and the only thing mentioned is that once the permission was granted to him treating the land to be revenue land, then he cannot be stopped from working merely on the ground that it was the forest land. 54. In the letter dated 02.09.2006, the only thing mentioned is that the Appellant never gave any consent in writing. 55. It is not the case of the State or the contesting-Respondent that the Appellant gave any written consent on 11.12.1997. Their case is that in the meeting all the parties agreed that the land should be so bifurcated and thereafter the letter dated 24.01.1998 was written and order dated 17.12.1998 was passed. In any case the letter dated 02.09.2006 was much after when the agreement was reached and was acted upon. 56. Their case is that in the meeting all the parties agreed that the land should be so bifurcated and thereafter the letter dated 24.01.1998 was written and order dated 17.12.1998 was passed. In any case the letter dated 02.09.2006 was much after when the agreement was reached and was acted upon. 56. The Appellant acted upon the settlement between the parties and supplementary lease deeds dated 10.02.2003 and 16.05.2004 were executed subject to the Appellant obtaining forest clearance. The entire conduct shows that not only the consent for settlement was given, but it was also acted upon by the Appellant. This was also explained by the State Government in its explanation dated 24.08.2006 on the representation of the Appellant dated 20.06.2005. 57. Thereafter, the Appellant has worked on 17.93 hectares of land and taken benefit of the same. He ought to have challenged the bifurcation proposed by the State Government on 17.12.1998 by taking appropriate legal proceedings at that time. He is not only estopped from challenging the same but his writ petition filed in 2012 is barred by latches. 58. It is correct that before passing any order on the revision of the contesting-Respondent, the Appellant ought to have been heard. But fault was of the Appellant himself. It has already been explained that it was not clear that the Appellant had applied for grant of lease of the same land because he suppressed the material fact stating it to be revenue land, whereas, the contesting-Respondent had applied claiming it to be forest land (see sub-heading 'Reasons for Non-Impleadment in Revision'). 59. It was for the aforesaid reason that the Appellant was not heard in the revision. The fault was not of the contesting-Respondent or the State Government but was of the Appellant. 60. Nonetheless, the Appellant was subsequently heard on 11.02.1997 and thereafter the proposal on the mutual agreement was made. The Appellant's objection was also taken into account before prior approval for granting the mining lease to the Appellant was granted on 13.02.2007. There is no merit in the first submission of the Appellant. 61. The Appellant obtained mining lease by suppressing material facts and giving false information and his lease deed was liable to be cancelled. However, in view of mutual agreement, it was not done and the land was bifurcated. The mutual agreement has been acted upon and supplementary lease deeds have been executed. 61. The Appellant obtained mining lease by suppressing material facts and giving false information and his lease deed was liable to be cancelled. However, in view of mutual agreement, it was not done and the land was bifurcated. The mutual agreement has been acted upon and supplementary lease deeds have been executed. Now, it does not lie in his mouth to say that the proceedings under Section 4A of the Act ought to have been taken. There is no merit in the second submission of the Appellant. 62. The prior approval for granting the lease to the contesting-Respondent is not against the provisions of the Act. It had rightly applied for mining lease stating it to be forest land. Thereafter, prior approval has been granted after considering all objections. There is no illegality in granting prior approval for mining lease to the contesting-Respondent. 63. In any case, prior approval was granted on 13.2.2007 and the writ petition was filed in the year 2012. The Appellant has taken advantage and worked upon the area allocated to him. Now after passage of such a long period, he cannot raise the plea that the prior approval granted to the contesting-Respondent was illegal. 64. The counsel for the Appellant also brought to our notice the letter of the Regional Controller, Indian Bureau of Mines, Government of India (the IBM) dated 02.04.2008 addressed to the Under Secretary, Government of India, Ministry of Mines, New Delhi as well as the note sheet of the Ministry of Mines on the basis of the aforesaid letter. He submits that the grant of the prior approval of mining lease to the contesting-Respondent is illegal and this should be set aside. 65. It is not disputed that a notification was issued on 04.07.1969 under section 4 of the Forest Act declaring 4969.46 hectares of land as reserved forest in Kanker forest division of tahsil Bhanupratappur in which village Barbaspur was included. The land that was leased out to the Appellant or being sought to be leased out to the contesting-Respondent is within this area and was a forest land. 66. The contesting-Respondent had applied for grant of prospecting licence over an area on 25.07.1990 treating it to be a forest land. But, the Appellant applied for prospecting licence treating it to be the revenue land. He suppressed material fact and obtained reports in his favour. 66. The contesting-Respondent had applied for grant of prospecting licence over an area on 25.07.1990 treating it to be a forest land. But, the Appellant applied for prospecting licence treating it to be the revenue land. He suppressed material fact and obtained reports in his favour. We need not speculate as to how and why these wrong reports were given in his favour. 67. As the matter came to the knowledge of the authorities, the Collector restrained the Appellant from working over the lease area by order dated 30.01.1997 and also recommended to the State Government that his lease be cancelled (see paragraphs 9 and 10 of the judgment). 68. It is after agreement that the area was bifurcated and supplementary lease deeds were executed in favour of the Appellant. Initially, the Appellant never challenged the factum of agreement or the fact that the land is a forest land. He only claimed in 2005 (after seven years) that he should be permitted to work over the area of 37.595 hectares. 69. The Appellant had earlier sent representation dated 20.06.2005 and on this State Government gave explanations on 28.08.2006. After considering the same, prior approval for mining lease was granted to the contesting-Respondent on 13.02.2007. There is no justification to agitate this point again. 70. There is neither anything on the record nor the counsel for Respondents were able to point out that any direction or letter was ever issued on the basis of the notings in August, 2008. No advantage of the same can be taken especially when the points raised therein were already considered and then prior approval was granted to the contesting-Respondent. 71. In our opinion, there is no merit in third submission of the Appellant. 72. The facts of this case show that the Appellant suppressed the material fact before obtaining the lease. It is true that his suppression was not pointed out by the officials but it is not difficult to judge why it must have been done. The conduct of the Appellant was not fair. He cannot take advantage of his own fraud – See The settled legal maxim in latin is Nullus Commodum Capere Potest De Injuria Sua Propria (Co. Litt. 148 b.)?No man can take advantage of his own wrong. 73. The Appellant took advantage of the agreement and acted upon the same. He who seeks equity must do equity. He cannot take advantage of his own fraud – See The settled legal maxim in latin is Nullus Commodum Capere Potest De Injuria Sua Propria (Co. Litt. 148 b.)?No man can take advantage of his own wrong. 73. The Appellant took advantage of the agreement and acted upon the same. He who seeks equity must do equity. The writ jurisdiction is equitable jurisdiction. It cannot be exercised in favour of such person. The Appellant is not entitled to any relief. CONCLUSION 74. The writ appeal as well as writ petition filed by the Appellant have no merit. They are dismissed.