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2015 DIGILAW 45 (UTT)

Bhagwan Singh v. State of Uttarakhand

2015-01-19

ALOK SINGH

body2015
JUDGMENT Alok Singh, J. 1. Petitioner has knocked door of this Court, while invoking Article 226 of the Constitution of India, assailing the order dated 12th November, 2013, annexure No. 6 to the writ petition, whereby mining leases were granted in favour of the respondent Nos. 5 to 18 to undertake mining activities in their nap bhumi (personal land). 2. Initially, ground to challenge the impugned order dated 12th November, 2013 was that no notice was ever published inviting applications from the general public as per the Rule 72 of the U.P. Minor Mineral (Concession) Rules 1963. Had there been any notification inviting the applications for the grant of the mining leases, petitioner would have applied and case of the petitioner could have also been considered. 3. After the counter affidavits were filed by the respondents pointing out that Rule 72 has been amended by the State Government vide Notification dated 30.04.2001 making provision that publication of notices inviting the applications for grant of mining leases shall be required except for the nap land (personal land), petitioner was permitted to carry out the amendment in the petition to challenge the amended Rule 72. 4. Learned counsel for the petitioner submits that mineral wealth / sub-soil rights vest in the State, therefore, mining lease is required from the State Government to carry out the mining activities even on the nap land (personal land). He further contents that since grant of lease is required before commencement of the mining activities on the nap land (personal land) too, therefore, State Government ought to have issued notices inviting applications from the general public so that all eligible would have applied and their cases would have been considered on their respective merit. He further contends that amended Rule 72 excluding the nap land (personal land) is arbitrary giving right to the Government to grant mining leases only to the owners of the nap land (personal land) depriving the general public in participating in the bid process for grant of lease, therefore, same should be declared ultra vires. 5. On the other hand, Mr. Shailendra Singh Chauhan, Deputy Advocate General assisted by Mr. Gajendra Tripathi, Brief Holder for respondents Nos. 1 to 4 has vehemently argued that vires of the Rules, Enactment or Act can be challenged mainly on the ground of Legislative incompetence. 5. On the other hand, Mr. Shailendra Singh Chauhan, Deputy Advocate General assisted by Mr. Gajendra Tripathi, Brief Holder for respondents Nos. 1 to 4 has vehemently argued that vires of the Rules, Enactment or Act can be challenged mainly on the ground of Legislative incompetence. Alleged arbitrariness, ordinarily, is not the ground to challenge the legality of any Enactment. 6. Mr. Parikshit Saini, Mr. P.K. Chauhan, Mr. Narendra Bali, learned Counsel, appearing for the private respondents vehemently contended that since private respondents are the owners of the land and sub-soil, therefore, no mining lease can be granted in favour of third party unless and until owners of the personal land are not interested in carrying out the mining activities and have given consent to carry out mining activities on their personal land, therefore, no publication inviting the applications from the general public is required. 7. Hon’ble Apex Court in the case of Thressiamma Jacob and Others vs. Geologist, Department of Mining and Geology and Others, 2013 (9) SCC 725 in paragraph No. 58 thereof has held as under:- “58. For the above-mentioned reasons, we are of the opinion that there is nothing in the law which declares that all mineral wealth sub-soil rights vest in the State, on the other hand, the ownership of sub-soil/mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process. In the instant appeals, no such deprivation is brought to our notice and therefore we hold that the Appellants are the proprietors of the minerals obtaining in their lands. We make it clear that we are not making any declaration regarding their liability to pay royalty to the State as that issue stands referred to a larger Bench.” 8. The bare perusal of paragraph No. 58 of the judgment of the Apex Court in the case of Thressiamma Jacob (Supra) would demonstrate that owner of the land shall be owner of the mineral wealth / sub-soil unless mineral wealth / sub-soil are vested in the State Government by way of Law. 9. The bare perusal of paragraph No. 58 of the judgment of the Apex Court in the case of Thressiamma Jacob (Supra) would demonstrate that owner of the land shall be owner of the mineral wealth / sub-soil unless mineral wealth / sub-soil are vested in the State Government by way of Law. 9. Since mineral wealth / sub-soil rights vest in the owner of the land, therefore, there is preferential rights in favour of the owner of the land to carry out mining lease over his nap land (personal land) after obtaining necessary permission and general public has no role to play in the matter of grant of mining lease in favour of the owner of the land. 10. Since owner of the nap land has preferential right to carry out the mining activities in his own nap land after obtaining approval from the State Government, no notice seems to be required to the general public prior to the grant of such mining lease in favour of the owner of the land. Therefore, Rules 72 as amended and applicable in the State of Uttarakhand cannot be said to be ultra vires or arbitrary. 11. Since, in the case in hand, mining leases were granted in favour of the owners of the nap land, therefore, no illegality or irregularity can be attributed to the impugned order. 12. Consequently, writ petition fails and is hereby dismissed. Interim order granted by this Court stands vacated. 13. All the applications also stand disposed of accordingly.