Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 3741 (ALL)

VIRENDRA v. STATE OF U. P.

2014-12-15

NARAYAN SHUKLA, TARUN AGARWALA

body2014
JUDGMENT Hon'ble Tarun Agarwala, J.—The petitioner is a bhumidhar of a land situate at Gata No. 593/36 in Village Khaira Khas, Pargana Sikandarpur Garvi, Tehsil Belthara Road, District Ballia. 2. In paragraph 13 of the writ petition, it is contended that on the land of the petitioner a lot of sand gets accumulated during the rainy season and that it becomes difficult for the petitioner to till the land after the rainy season. The petitioner contends that he is the absolute owner of the sand, which gets collected on his land and that he has the sole proprietary right on it and, consequently, a writ of mandamus should be issued to the respondents, especially to the District Magistrate to permit the petitioner to excavate the sand from his land, for which the respondents are directed to issue Form MM-11. It was further prayed that the petitioner is ready and willing to pay the royalty as per the Schedule 1 of the U.P. Minor Minerals (Concession) Rule, 1963 (hereinafter referred to as the Rules of 1963). 3. We have heard at length Sri Dev Brat Mukherjee, the learned counsel for the petitioner and Sri Vishnu Pratap Singh and Sri Alok Kumar Singh, the learned Standing Counsels for the State. 4. The learned counsel for the petitioner contended that Mines and Minerals Regulation and Development Act, 1957 (hereinafter referred to as the Act of 1957) and the Rules framed therein, namely, The Uttar Pradesh Minor Minerals (Concession) Rules, 1963 only provides for regulation of mining activity in the country and that the aforesaid legislation does not legislate that the minor minerals found in the sub-soil vests with the Central Government or the State Government. It was contended that the Act of 1957 or the Rules of 1963 does not declare proprietary rights of the minerals with the State nor does it contain any provision divesting the owner of minor minerals of his proprietary right. 5. In support of his contention, the learned counsel for the petitioner contended that with regard to specific minerals the Parliament has made laws divesting proprietary rights of such minerals upon the owner of the land where such minerals were found. 5. In support of his contention, the learned counsel for the petitioner contended that with regard to specific minerals the Parliament has made laws divesting proprietary rights of such minerals upon the owner of the land where such minerals were found. In this regard, the petitioner submitted that under the Mines (Nationalization) Act, 1972 and Coal Bearing Areas (Acquisition and Development) Act, 1957 an express declaration under Section 4 and 7 of the said Act has been made providing for acquisition of mines and rights in or over the land from where coal was obtained and that the proprietary rights in mines stood transferred and vested in the State. It was contended that under the Atomic Energy Act, 1962, Section 5 prohibits mining activity of uranium. Similar provisions of prohibiting excavation of oil has been passed by the Central Government under the Oil Fields (Regulation and Development) Act, 1948. 6. Arguments were made on the question that only the Central Government under Entry 54 of the Union list under the Constitution of India had the power to make laws for regulation of mines and minerals development and that the State Government had no such power to make laws under Entry 23 of the State list. In this regard, the learned counsel submitted that the Supreme Court in Mineral Area Development Authority and others v. Steel Authority of India and others, 2011 (4) SCC 450 , has referred the matter to a Bench of 9 Judges and that the matter is pending consideration. On this issue, the learned counsel has placed reliance in Baijnath Kedia v. State of Bihar, AIR 1970 SC 1436 , State of Orissa and another v. M/s M.A. Tulloch and Co., AIR 1964 SC 1284 and The Hingir-Rampur Coal Co. Ltd. and others v. The State of Orissa and others, AIR 1961 SC 459 , on the issue that the entire regulation has been taken over by the Union of India. 7. Ltd. and others v. The State of Orissa and others, AIR 1961 SC 459 , on the issue that the entire regulation has been taken over by the Union of India. 7. We are of the opinion that the question whether the Central Government has the exclusive power to regulate the mines and minerals development is not a issue to be decided in this petition as the pleadings are lacking and there is no challenge of the vires of the Rules of 1963 framed by the State Government in exercise of the powers conferred under Section 15 of the Act of 1957 and, therefore, it is not necessary to dwell on this subject, which has been raised by the petitioner. We are of the opinion that the issue lies in a narrow compass, which can be adjudicated accordingly. 8. The petitioner is taking a dual stand. At one place the petitioner contends that he is the owner of the sub-soil mineral, which are found on his land and, at another place, contends that sand is accumulated on his land after the rainy season. The petitioner has not indicated as to how the sand gets accumulated after the rainy season and presumably we could infer that this collection of sand is on account of the flooding of his land by the river during the rainy season. At the outset, we may clarify that the sand, which is accumulated during the rainy season is not a sub-soil. When the flood recedes, it normally leaves behind large quantity of sand, gravel, bajari, etc., which are deposited on the surface of the land. Presumably, it is this deposit, which the petitioner is laying claim which has been left behind by the fluvial action of the river by contending that since he is owner of the land, he is entitled to excavate the said sand and appropriate the deposits to the exclusion of all others with the condition that he is ready to pay the royalty as per Schedule 1 of the Rules of 1963. 9. The contention of the petitioner that he has proprietary right over the sand that has been accumulated because he is the owner of the land is patently erroneous. 10. 9. The contention of the petitioner that he has proprietary right over the sand that has been accumulated because he is the owner of the land is patently erroneous. 10. In Bhagwan Das v. State of U.P. and others, AIR 1976 SC 1393 , the Supreme Court had the occasion to consider the question of sand which was deposited on the land abutting the rivers as a result of the fluvial action of the river. For facility, paragraph 7, 8 and 9 of the said decision are extracted hereunder : “7. We are concerned in this appeal with the interpretation of the relevant provisions of the Mines and Minerals (Regulation and Development) Act, 67 of 1957 and the Uttar Pradesh Minor Minerals (Concession) Rules, 1963. We will refer to them respectively as the Act of 1957 and the Rules of 1963. Section 3(e) of the Act of 1957 defines (minor mineral” to mean “building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral”. Section 15 confers power on the State Government to make rules for regulating the grant of quarry leases, or other mineral concessions in respect of minor minerals and for purposes connected therewith. 8. The Government of Uttar Pradesh framed Rules of 1963 in exercise of the power conferred upon it by Section 15 of the Act of 1957. Rule 2(5) defines “Mining operations” as meaning any operations undertaken for the purpose of winning any minor mineral. Rule 2(7) defines “minor minerals” substantially in the same terms as Section 3(e) of the Act of 1957. By Rule 3, no person can within the State undertake any mining operation of any minor mineral except under and in accordance with the terms and conditions of a mining lease or mining permit granted under the Rules. 9. These provisions of the Act of 1957 and the Rules of 1963 are clear and explicit, admitting of no doubt or difficulty. 9. These provisions of the Act of 1957 and the Rules of 1963 are clear and explicit, admitting of no doubt or difficulty. If the deposits left by the receding waters of the river are of the description, mentioned in Section 3(e) of the Act or Rule 2(7) of the Rules, Rule 3 must come into full play with the result that no mining operation in respect of the deposits can be undertaken except under and in accordance with the terms and conditions of a lease or permit granted by the Government under the Rules of 1963. We are concerned in this appeal with deposits in the nature of ordinary sand other than sand used for prescribed purposes, gravel, building stones and bajris. These fall squarely within the above-quoted provisions of the Act of 1957 and the Rules of 1963 and are therefore minor minerals. Accordingly, the appellant cannot undertake any mining operation, even on the lands now belonging to him for the purpose of winning these minor minerals except under a lease or permit granted by the State Government. The right of the former Zamindars to mines and minerals was extinguished by the Act of 1951 and became vested in the State Government. So long as the proprietary right to the lands was vested in the Zamindar he was entitled to mines and minerals. With the abolition of Zamindari by the 1951 Act, that right has passed on not to the appellant but to the State Government. The appellant’s writ petition filed to restrain the State Government from auctioning the right to undertake mining operations must therefore fail.” 11. The Supreme Court after considering the provisions of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1947 (hereinafter referred to as the Act of 1947) held that in view of the consequences of vesting of the land pursuant to the notification under Section 4 of the Act of 1947 leaves no room for doubt that all sub-soil including mines and minerals shall vest with the State Government free from all encumbrances. The Supreme Court held that the right of the former zamindars to mines and minerals was extinguished by the Act of 1951 and became vested in the State Government. The Supreme Court held that the right of the former zamindars to mines and minerals was extinguished by the Act of 1951 and became vested in the State Government. So long as the proprietary right vested in the zamindar, he was entitled to the mines but by the abolition of zamindari of the 1951 Act that right has passed on not to the petitioner but to the State Government. Similar view was expressed by the Supreme Court in King Pal Singh v. State of U.P. and others, AIR 1997 SC 1758 . 12. For facility, Section 6(a)(ii) of the Act of 1947 is extracted hereunder : “6. Consequences of the vesting of an estate in the State.—When the notification under Section 4 has been published in the Gazette, then, notwithstanding anything contained in any contract or document or in any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafter set forth shall, from the beginning of the date of vesting, ensure in the area to which the notification relates, namely: (a) all rights, title and interest of all the intermediaries - (i) in every estate in such area including land (cultivable or barren), grove-land, forests whether within or outside village boundaries trees (other than tress in village abadi, holding or grove), fisheries, tanks, ponds, water channels, ferries, pathways, abadi sites, hats, bazars and melas (other than hats, bazars and melas held upon land to which Clauses (a) to (c) of sub-section (1) of Section 18 apply; and (ii) in all sub-soil in such estates including rights, if any, in mines and minerals, whether being worked or not; shall cease and be vested in the State of Uttar Pradesh free from all encumbrances.” 13. Admittedly, the petitioner is a bhumidhar under the Act of 1947. In Hakim Ji Brick Industries v. State of U.P. and others, 2002 (5) AWC 3713 , a Division Bench of this Court held that bhumidhari right is not a proprietary right but a tenancy right and even though bhumidhari right is heritable and transferable, nonetheless it is not a proprietary right. The Division Bench further held that the proprietor of the land is the State Government in whom the last vested under Section 4 of the Act of 1947. 14. The Division Bench further held that the proprietor of the land is the State Government in whom the last vested under Section 4 of the Act of 1947. 14. Proprietary right under the Hindu Law indicates that there are seven lawful modes of acquiring property, or proprietary rights -(viz.) inheritance, finding or friendly donation, purchase, conquest, lending at interest, the performance of work and the acceptance of gifts from virtuous men 15. In our opinion, in view of the Act of 1947, the petitioner, being a bhumidhar, has a tenancy right, and accordingly, he has a proprietary tenure meaning thereby a right to occupy but it does not mean that the petitioner has a right to excavate the minerals, which are found on the land. In view of the aforesaid decision of the Supreme Court in the case of Bhagwan Das (supra) and King Pal Singh (supra) and a Division Bench of this Court in Hakim Ji (supra) we have no hesitation in holding that the petitioner has only a tenancy right being a bhumidhar and does not have any proprietary right. Reliance by the petitioner of the decision of the Supreme Court in Thressiamma Jacob and others v. Geologist, Department of Mining and Geology and others, 2013 (9) SCC 725 , is totally misplaced in which it was held that the minerals does not belong to the crown. In our opinion, the said decision is distinguishable as the nature of the land in that case was different. The Supreme Court was not examining the nature of the land under the Act of 1947. 16. In the light of the aforesaid, the petitioner does not have any claim for excavating or removing the sand from his agricultural land merely because he has bhumidhari rights. Consequently, no writ of mandamus could be issued directing the Collector to issue Form MM-11 to the petitioner so that he could remove the sand from his land. 17. At this stage, we may state that the State Government has issued the U.P. Minor Minerals (Concession) (Thirty-Seventh Amendment) Rules, 2014 on 27th October, 2014 by which Rule 52A has been inserted. For facility, the said provision is extracted hereunder : “52-A(1). Notwithstanding anything contained in rule 72, the bhumidhar of agricultural land may apply for grant of mining permit for removal of Form MM-8, in triplicate, to the District Officer, accomapnied by a fee of Rs. For facility, the said provision is extracted hereunder : “52-A(1). Notwithstanding anything contained in rule 72, the bhumidhar of agricultural land may apply for grant of mining permit for removal of Form MM-8, in triplicate, to the District Officer, accomapnied by a fee of Rs. 2,000/- (Rupees two thousand) only, and two copies of a Cadastral Survey Map on which the area, applied for, is clearly marked. (2) The District Officer shall cause an enquiry, if deemed necessary, through concerned Tahsildar and Mines Officer/ Mines Inspector on the following points : (a) Whether the sand and morrum have been accumulated on the applied land due to floods; (b) Whether the name of the applicant/ applicants is/ are recorded as bhumidhars on the applied area; (c) Whether due to accumulation of sand and morrum, the applicant/ applicants is/ are suffering loss on account of non-utilization of such applied land; (d) Whether such land was utilized for agricultural purposes during the past years; (e) Whether the quantity of the minor mineral, applied by the applicant, is available on the applied area; (f) Whether the applied area for mining permit is suitable for mining. (3) In the light of aforementioned point-wise report submitted by the Tahsildar/ Mines Officer or Mines Inspector, as the case may be, the District Officer may grant the mining permit for a period not more than three months in a Fasli year in favour of the bhumidhar, after realizing the amount of royalty in advance. (4) Except above mentioned provisions, the other provisions of these rules will apply mutatis mutandis to the mining permits granted under this rule.” 18. From a perusal of the aforesaid provision, it is clear that a bhumidhar of an agricultural land may apply for grant of mining permit for removal of the sand, moram accumulated due to flood on his agricultural land in Form MM-8 upon deposit of Rs. 2,000/-. 19. In the light of the aforesaid, the writ petition is dismissed leaving it open to the petitioner to apply for mining permit under Rule 52A of the Rules of 1963. ——————