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2021 DIGILAW 57 (UTT)

SANJAY MALL v. STATE OF UTTARAKHAND

2021-01-14

SHARAD KUMAR SHARMA

body2021
JUDGMENT The grievance as raised by the petitioner in the present writ petition is that, under the grant of a mining license to respondent No. 4, for which an indenture was executed on 10.02.2015, between the respondent No. 4, and the Governor of the State of Uttarakhand by virtue of G.O. No. 1334/VII-1/2014-148 kha/2008, over 4.184 hectare of land for a period of 20 years dated 29.09.2014. 2. The petitioner grievance is that, the respondent No. 4, in addition to the plot(s), which were already granted to him by way of lease 10.02.2015, for carrying out the mining activities, is rather barging over the land, which actually belongs to the petitioner, which is adjoining to the mining land which was leased to respondent No. 4 by the indenture, and hence his grievance in the present writ petition is that a writ of mandamus may be issued as against the respondent, to restrain the respondent No. 4, from carrying out any illegal mining activities on the petitioner's plots, which are lying in khata No. 26, 71, 73, 74, 46 and 114, at village Dungara, Tehsil and District Pithoragarh. 3. The learned counsel for the petitioner has argued that in relation to the damages which has been caused on account of the illegal mining activities carried by respondent no. 4, under the garb of indenture executed in his favour, it will entitle him to seek a relief of restraint by way of writ of mandamus as against respondent No. 4 by invoking writ jurisdiction under Article 226 of the Constitution of India and further, he has also sought a writ in the nature of mandamus that he may also be provided with the compensation for the losses which has been suffered by him due to the illegal act of private respondent No. 4, under the garb of the mining lease. 4. In order to substantiate his argument, he has strongly placed reliance on the indenture dated 10.02.2015, and its terms and particularly, he has drawn the attention of this Court to the two clauses i.e. Clause 2 and 4 of Part VII of the terms of indenture, as contained in it, as well as clauses 13 and 15 of Chapter VII of the indenture, which are referred hereunder:- “2. The lessees hall at his/their own expense erect and at all times maintain and keep in repair boundary marks and pillars according to the demarcation to be shown in the plan annexed to this lease. Such marks and pillars shall be sufficiently clear of the shrubs and other obstructions as to allow easy identification. 4. The lessee shall make and pay such reasonable satisfaction and compensation as may be assessed by lawful authority in accordance with the law in force on the subject for all damage, injury or disturbance which may be done by him in exercise of the powers granted by this lease and shall indemnity and keep indemnified fully and completely the State Government against all claims which may be made by any person or persons in respect of any such damages, injury or disturbance and all costs and expenses in connection therewith. 13. Unless specifically exempted by the State Government the lessee shall provide and at all times keep at or near the pit head or each of the pit heads at which the said minerals shall be brought to bank a property constructed and efficient weighing machine and shall weigh or cause to be weighed thereon all the said minerals, from time to time brought to bank, sold, exported and converted and also the converted products and shall at the close of each day cause the total weight ascertained by such means of the minerals ores products raised, sold, exported and converted during the previous twenty-four hours to be entered in the aforesaid books of accounts. The lessee shall permit the State Government at all times during the said terms to employ any person or persons to be present at the weighing of the said minerals as aforesaid and to keep accounts thereof and to check the accounts kept by the lessee/lessees. The lease shall give 7 days previous notice, in writing to the Deputy Commissioner/Collector, Pithoragarh of every such measuring or weighing in order that he or some officer on this behalf may be present threat. 15. The lease shall give 7 days previous notice, in writing to the Deputy Commissioner/Collector, Pithoragarh of every such measuring or weighing in order that he or some officer on this behalf may be present threat. 15. The lessee shall make and pay reasonable satisfaction and compensation for all damage, injury or disturbance or person or property which may be done by or on the part of lessee in exercise of the liberties and power granted by these presents and shall at all times save harmless and keep indemnified the State Government from and against all suits, claims and demands which may be brought or made by any person or persons in respect of any such damage, injury or disturbance." 5. What he intends to convey to the Court, during the course of the argument and logic of argument is based on the fact, that as if this indenture which has been executed between the two signatories to the contract, would itself constitute to be a statute or a law and would be a law to be enforced in a writ jurisdiction and will fall within the definition of law provided under Article 13(3) of the Constitution of India and since it contemplates the payment of damages, a writ would lie before this Court under Article 226 of the Constitution of India. 6. I am not in agreement with the tenacity of argument as it has been extended by the learned counsel for the petitioner, for the following the reason, being:- (i) The indenture which was executed between the two signatories to the contract would be having an interse binding effect between the signatories of the contract itself only and not the third party, the status, which the petitioner enjoys in the instant case, as he is not the signatory of the indenture dated 10.02.2015 hence its terms would not bind him by its conditions. (ii) The interpretation given by the petitioner to the aforesaid two clauses of his ,entitlement to receive the damages under the indenture obviously, he would be entitled to receive the damages for the losses if any, which are suffered by him, but the clauses of the indenture and the language used in it, is rather a precaution, which has been provided under the terms of contract, as against the lessee that in an eventuality, while undertaking the mining activity, as permitted to respondent No. 4, under the terms of indenture, if the lessee i.e. respondent No. 4 herein, causes damages to the property of any third person, then the scope of recovery of damages has been protected and saved by the State which could be made by the State, that it would be the state's liability and entitlement to recover it from the lessee it cannot be interpreted to be enforced by petitioner to claim damages. (iii) The indenture executed between the Governor and the private respondent No. 4, would be a contract falling in the regulation of rights in personal domain, and would not take shape of law as defined under Article 13(3) of the Constitution of India, as it doesn't fall to be the conditions which are enforceable in public domain. 7. The said clause cannot be interpreted in a manner as if it was an entitlement, which was granted to the third person also, in order to claim the damages from the State under the contract by invoking the writ jurisdiction under Article 226 of the Constitution of India, as it doesn't entail enforcement of any public rights which had been legally protected by the Constitution of India, he can avail his remedies by filing a regular civil suit for the grant of injunction and that too if at all he has suffered the damages, he could have also approached the state government in order to establish, the fact of damages caused and its extent? Its quantification of the extent of loss caused? And damages, which he would be entitled to receive? Which requires factual determination. All these aspects will not at all fall to be enforceable, in a writ jurisdiction under Article 226/227 of the Constitution of India. 8. Consequently, this Court is not inclined to interfere in the writ petition. Its quantification of the extent of loss caused? And damages, which he would be entitled to receive? Which requires factual determination. All these aspects will not at all fall to be enforceable, in a writ jurisdiction under Article 226/227 of the Constitution of India. 8. Consequently, this Court is not inclined to interfere in the writ petition. The same is dismissed subject to the liberty open to the petitioner to approach before an appropriate forum as available to him under law for the redressal of his grievances. 9. On conclusion of the judgment, the petitioner's counsel has requested the Court to record the finding with regard to the grounds taken by him in para 11 of the writ petition, which reads as under:- “11. That apart from that, rules 72 of the Minerals (Concession) Rules, 1960 provide that payment of compensation to owner of surface rights etc., the holder of a reconnaissance permit or prospecting licence or mining lease shall be liable to pay to the occupier of the surface of the land over which he holds the reconnaissance permit or prospective licence or mining lease as the case may be, such annual compensation as may be determined by an officer appointed by the State Government by notification in this behalf in the manner provided in sub-rule (2) to (4). (2) In the case of agriculture land, other than land referred to in sub-rule (4), 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 previous three years. (3) 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 and for the previous three years. (4) The annual compensation referred to in sub-rule (1) shall be payable on or before such date as may be specified by the State Government in this behalf." 10. What the petitioner's counsel intends to attract by referring to the Rule 72, are the implications contained under Rule 72, of the Mineral (Concession) Rules 1960. (4) The annual compensation referred to in sub-rule (1) shall be payable on or before such date as may be specified by the State Government in this behalf." 10. What the petitioner's counsel intends to attract by referring to the Rule 72, are the implications contained under Rule 72, of the Mineral (Concession) Rules 1960. If the Rules of 1960, itself is taken into consideration, it has been framed under Section 13 of the Mines and Minerals (Development and Regulation) Act, 1957, and it relates to the determination of a compensation for the losses caused to the surface of the land in relation to the ‘minerals', as defined under the Act itself. Its not for the purposes of determination of personnel damages as claimed by the petitioner. Its the damages which is payable under the terms of indenture to the state, by the lessee, and otherwise also as it has been argued by the learned counsel for the petitioner, the Rule 72 will not be applicable under the facts of the present case. 11. The learned counsel for the petitioner, particularly in the aforesaid paragraph, as referred above, had sought a finding from this Court with regard to the implications of Rule 72 of the Rules framed under the Act. The Minerals (Concession) Rules, 1960, had been formulated and notified by the Gazette of India on 11.11.1960, while exercising its power under Section 13 of the Mines and Minerals (Development and Regulation) Act, 1957. It goes without saying that the rule making power granted under a statute to the State may it be a central or the state government has had to be inconsistent with the provisions contained under the Act itself and particularly when the learned counsel for the petitioner had made reference to the Minerals (Concession) Rules, 1960, we cannot exclude the consideration of the definition of ‘mineral', as it has been described under the Act itself, particularly that as contained under Section 3(aa), which includes all minerals except the mineral oils, as independently defined under the Act. 12. 12. The Rules framed under Section 13 and particularly, the reference of Rule 72, as it has been made by the learned counsel for the petitioner, it would be relevant to extract the definition of mineral given under Section 3(aa) of the Mines and Minerals (Development and Regulation) Act of 1957, as well as Rule 72 itself, which constitutes to be the part of Chapter 10 of the Rules, which reads as under:- “3(aa) “minerals" includes all minerals except mineral oils;" 13. As per the opinion of this Court, the entitlement of the compensation to the owner of the surface rights has had to be rationally read in relation to the person in whose favour the licence for extracting the mining has been granted and the liability imposed thereupon is on the licence-holder, to whom the right of excavation of a mining lease has been granted and its relationship would be governed vis-a-vis the licensor and the licensee under the Act itself and it will not regulate the interse relationship between the licensee under the Act and the third party who is claiming a compensation for the alleged loss, which the petitioner contends he has suffered on account of the mining activity, which was carried by respondent No. 4, under the terms of the license granted in his favour. 14. At this stage, the entitlement of the compensation is vis-a-vis the petitioner and respondent No. 4. The State has got no role to play herein, because the liability of payment of compensation under Rule 72, would be with regard to the surface rights of the earth, which has been granted to the licensee under the terms of the license and not otherwise. Hence, the interpretation given to Rule 72, would not be applicable in the circumstances of the present case, hence this argument is not sustainable and is not accepted by this Court. 15. This provision of Rule 72, would not be applicable to the present set of circumstances of the case, hence this argument as has been raised by the learned counsel for the petitioner, is also not sustainable in the present case. 16. Accordingly, this Court is not inclined to accept the tenacity of arguments raised by the counsel for the petitioner in the light of the provisions contained under Rule 72 of the Rules 1960, itself. 17. 16. Accordingly, this Court is not inclined to accept the tenacity of arguments raised by the counsel for the petitioner in the light of the provisions contained under Rule 72 of the Rules 1960, itself. 17. Thus the writ petition lacks merit and same is accordingly dismissed.