Karnataka High Court
Ashok Kumar Lingala vs State Of Karnataka on 1 September, 2010
Equivalent citations: 2011 (1) AIR KAR R 749
Author: Manjula Chellur
Bench: Manjula Chellur
'. mg; II
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 137 DAY OF SEPTEMBER 2010
PRESENT
THE I-ION'BLE MR. J.S. KHEI-IAR, CHIEF
AND
THE HON'I3LE MRS. JUSTIOEZMCANJLILA OII.ELL_U_I§7~' In
WRIT PETITION No. 172812120 i'0_IGM§MIv1*S) = I
c/w W.P. 18043'/;.g,_I,)_1o (GIT/I--MMfs_;
WI' No. 17231/2010: I CC I
BETWEEN: C
ASI-IOK KUMAR LINGALA _ '
AGED ABOUT.,54«YEAI2s ' ' '
S/O M.L. UMAPATHI, RE)SID'ING_'AT"'N'E*LE'
PLOT No. 19," WARE-';--Nc.2_9_,_
1ST cRoss,'RA;IIIJ NAGAR',~."_' I '
HOSPET I'-FOAWN, f3'E;L«LARY«.DISTRICT.
PETITIONER
(BY DRE ;3,v~. AC1-.IARVYA," ADV. FOR
MR. L.M. CII:IIDVANAND.AYY"_A, ADV.)
KARNATAKA
__ I.RE1?REs\E'T;TED BY
* , IT'S 'SECRETARY TO THE DEPARTMENT OF
_ ' INDUSTRIES COMMERCE
{s.sI,-TEXTILES as MINES)
VIDHANA SOUDHA,
I BANGALORE--560001.
THE COMMISSIONER 81, DIRECTOR OF
MINES 86 GEOLOGY
DEPARTMENT OF MINES AND GEOLOGY
KHANIJA BI-IAVAN, RACE COURSE ROAD,
BAN GALORE--56000 1 .
pi
" _MD...AB:D,U L SALEE:vT*"
I\)
3. M /s SANDUR MANGANESE av,
IRON ORE CO. LTD.,
A COMPANY REGISTERED UNDER THE
COMPANIES ACT HAVING ITS
REGISTERED OFFICE AT :
LAXMIPURA SANDUR TOWN, "
SANDUR TALUK, BELLARY DISTRICT--583 1.1.9 I: "
REIE..I:3ON'DE1I\.TTS.--I _ V'
(BY SR1 R.G. KOLLE, AGA FCRR1 'Es.
SRI D.L.N. RAO, SR. COUNSEL ' _ A
MS. SR. ANURADHA, ADV. FOR C._/_R3) - =
THIS WRIT PETITION IS FILED UNDER.A'RTI'CLES 226
AND 227 OF THE CONSTITUTION OF INDIA RRATING TO
CALL FOR THE RECORDS WHICH _ULT~I.MATELT~RESULTED
IN PASSING ' TH'E._'j;-- ILVEPEJGNED NOTICE No.
DMG/MM/2622/O9~10/6940 'RRO.DUcED_ A-T ANNEXUREAA
PASSED BY THEQND RE3SPQ_N.DENI', ETC;
W.P. 18o4'3Ag".O.V-dI'*'\'1"fit'V\'£'V
BETWEEN ' '
M /s THE ISANDIJR 'If%2IIAN:GANESES,VIRON ORES LIMITED
REGISTER.ED.U'1x:iDE%R 'COMPANIES ACT, 1956,
REGISTERED OFFICjE AT;
LAXMIPUR,4_SP.ND'U_R--:583 L19,
BELLARY DI'ST_RICT--, KARNATAKA
RE1?RESENTED BY ITSCOIVIFANY SECRETARY
... PETITIONER
C"'(.SY5'.S%RI"D";'L.Nf7_RAO, SR. COUNSEL FOR
Ms._ SR. ANTJRADHA, ADV. )
7._AND : ~.
A J} THE STATE OF KARNATAKA
-VMINES, SSI 85 TEXTILES,
REPRESENTED BY SECRETARY
DEPARTMENT OF INDUSTRIES AND
COMMERCE, M.S. BUILDING,
BANGALO RE-- 1. .
Jaadmfi 5m3&
2. DIRECTOR OF MINES 85 GEOLOGY
DEPARTMENT OF' MINES AND GEOLOGY
FIFTH FLOOR, KHANIJA BI-IAVAN,
RACE COURSE ROAD, BANGALORE--1.
3. MR. L.V. ASHOK KUMAR LINGALA,
AGED ABOUT 54 YEARS
SON OF MR. L. UMAPATNI LINGALA,
RESIDING AT 'NELE'
PLOT No. 19, WARD No.29,
IS'? CROSS, RAJEEV NAGAR," "
HOSPE'I'--583201 I
BELLARY DISTRICT, KARNATAIQX.
(BY SRI R.G. KOLLE, AGA"i?O_f? R-»1_& 2," To
" A T DR. B.V. ACTIARYA,C'_ SE. CO_'oNSEL FOR
SRI L.M. CIIIDANAND-A.YIrAi; ADI2'S.;EOR R3}
Tms WRIT ;I9ETITI'ON;.Is FILED UNDER ARTICLES 226
AND 227 OF 'f_HE*"C.QN'SfE'.ITi}TION, OF INDIA PRAYING TO
QUASH THE.,G'O\1'jT. NOTIF*1CATI'ON}DATED 15.1.2010 VIDE
ANNEXUR'E=C;;.QUA;S--H MI'NING LEASE EXECUTED IN
RAVOCR OF "-THE' THIR,D~~.,REsPONDENT DATED 6.2.2010
VIDE ANNEX'ORE..D=.AI\ID"ETC;,
THE"SSE_"w,RIT._I5I::TITi~ONS COMING ON FOR ORDERS
THIS_D.,AY, CHIEF JUSTICE MADE THE FOLLOWING :
ORDER
the instant order we propose to dispose twozw-r;it petitions, i.e., WP Nos. 17281/2010 (Ashok Lingala Vs State of Karnataka and others) 85 WP 18043/2010 (M/s Sandur Manganese 81, Iron Ores A' Company Ltd. Vs State of Karnataka and others.) Aithough the iatter petition was filed later in point of .. --ROE_SIV5(V)41V\IV[')E4.'NTS O' "'ar°W"°,_..*""""i£"
time, but for purposes of narration of facts chronologicaiiy, it will be appropriate to narrate the facts in W? No. 18043/2010 first, and there'after:,i~.,_t0 ad"erE?°i&1}% f§%.¥tSdii'r a§§en§{=.2§i1{r%°1 Ltd. (hereinafter referred to as" »-'l\/I,/slut fe;ae.. granted an iron ore mining leaseias iibael{_,pias.,in The renewal thereof, was granitedhihonp iivith if 0 effect from 1. 1. 1984. {the ,..are~.?eeeid_ g_ renewal 'extended the 'M / s Simore', upto relevant to mention that the lease was granted to a1\/I/S area was to the extent of appxioitirnateljf sq, miles, the same Was reduced in the _renViewal..i:Vl'ease to 1816 sq. hectares. We are informed ithatftheiifaforevsaid area over which 'M/ s Simore' is presently "permitted to mine iron ore, extends to approximately 18.50 sq. miles.
0 . 3. Ashok Kumar Lingaia (the petitioner in W.P. No. "'-§ré7281/2010) flied an application for the grant of a mining lease, on 19.2.2005. Before the final mining q_ Smgfv lease could be granted to him, requisite permissions had to be sought from the Tahsildar, Sandur, the Land Tribunal Sandur, the Deputy Commissioner, Bellarsfiutas also the Director of Mines and Geoiogy. permissions were duly granted at the"
approved the grant of an iron-ore Ininin g leaiseéi to_V.VAs:hoi1i< Kurnar Lingala. The claim of Kuinaifilsiingala was then forwarded to Cileintrali "'Gpover_rzment, as the approva} of the Centraliv-€;.overninentvisaiialso an essential prerequisite"'befoie--':g;uc'1§1;...gi"lease"'is granted by the State Governanten-t_.x; 'jfI'hie31fr.;Central.i C~o'Ve1'nment having accepted and approved made by the State Governrnerit. a mining 'lease was eventually granted in ' of pAshok"-Kumar Lingala through a notification 1 As per the said notification the granted to Ashok Kumar Lingala extended an area of 4.42 hectares. Before the execution of a fuegistcred lease deed with Ashok Kumar Lingaia a xii'*-ii:hcoinmunication dated 31.1.2010 was issued for the demarcation of the boundaries over which the said 1ease_ would extend. After the demarcation of the boundaries 6 had been carried out, a registered mining lease deed was executed by the State Government with Ashok Kumar Lingala on 6.2.2010. The registered nfliliaring lease, enclosed therewith a site plan, as depiction of the boundaries (over which, Ashok Kumar Lingala would have iron ore). The only difference between thae"li'ino.itification dated 15.1.2010 and the registeredf; mining lease dated 6.2.2010 that; dated 6.2.2010 authorised Ast.iok._ 2 to": «carryout mining operations§'o'ver_ hectares only, as against 4.42 it iapprbved. The instant alteration the physical demarcation of boundaries which'.reVe'aied that only 3.36 hectares of v' v land' ayailable 'mining.
' case of Ashok Kumar Lingala, that the he had been ailowed mining rights by lathe $tateg_ Government (through the mining lease dated i '~It6;V2'i.2-oio) was under the ownership of Smt. Yallarnrna. i1ZifWOI.1ld be pertinent to notice, that during the course of consideration of his claim, Ashok Kumar Lingala had submitted permission as also authorisation given to him W U"
7
by the aforesaid land--lady, Smt. Yallamma. The controversy between the petitioner in WP. No. 17281/2010 as also the petitioner in W? in sum and substance is, about the right . mining, over the land leased __out__to Lingala (through the mining lease:4deie'd'~ _
4. On 5.3.2010, the Diife'c,tzor,liDvepar1;n:ei;i~t_:c£Mines and Geology, addressed ay_c_o1nrm,inicat'ion'A Ashok Kumar Lingala'.'inform'ing iiMining Lease granted to 6.2.2010 Was in respect _o_fii\'o.27, measuring 3.36 hectares, Village, Sandur Taluk, Bellary District. lll'Itiiwias.,ia%so pointed out, that in respect of a complaint had been received alleging that the land leased out lii{'i--i,;f;jl14:igiLease No. 2622 on 6.2.2010 overlapped Uypthevixirhich had already been leased out to 'NUS it ii..,ijSiiIhore'Vliiunder Mining Lease No. 2580. 'M/s Simore' hia.d,iiaccordingly, required the Director, Department of Mines and Geology to cancel the iron ore mining lease granted to Ashok Kurnar Lingala. The Director in his aforesaid communication dated 5.3.2010, informed
---_..,p ...-n-4..
8 Ashok Kumar Lingala, that the drawing section had confirmed the overlapping of the land, and had thereby acknowledged, the veracity of the complaint by 'M/s Simore'. Ashok Kurnar Lingala was to stop mining activity on the land for Lease No. 2622 was granted to tdtnpota. 6_,2e.'2of1'o,s.,:,'1t'...,i.$ir' the instant order dated 5.3,4201l0--,,.ithat pr-ornptedl'; filing of we No. 17281 /201olat.,,:i:;.shaods.yi"5
5. It also emerges in the writ petitions, that order dated
5.3.2010, addressed a represféntatidnpppp to the Director, Department in response to the atoasao representation dated 9.3.2010, and also a fdrfiler-,_ silbyslequent representation dated 13.4.2010, that Department of Mines and Geology passed a Ipfurther on 25.5.2010. It is essential to extract 2' lX_i3ere'under a relevant part of the aforesaid order :
" Copy of the explanation furnished by M/s SMIORE is enclosed herewith which is self explanatory. As averted in their letter, they are holding the lands under question in their Mining lease since 1954 for over almost 56 years for which Mafia, NOC is also obtained from the Revenue Department.
Further, it is stated that part of the leased area to you is covered with staff quarters built during 1970, children p1ayi~._f-«..,_'~V ground and plantation and thus impossible c. to carry out mining.
In view of the above,__you_r withdraw the letter dated O5_.03.2_O10' stop mining activities the'revvli_th'i be "
considered as it holds' good 's.i_n'ce the"-area' 2 executed under ML 2622 ovei'1aps.,to_ the ' ML 2580 area held by M"/Ls, 'sM1oRs., "
Accordingly, it is ' it _ the "Director, Department of Mines to accept the request made" bingaia, to withdraw the earlier.V,d-ated""S*.3.2O10, Vide which he had been d,irected'ft.o: operations on the land under refer"e.nc'e._ A " ~ , V 6», It,i's.,a1so apparent from the pieadings in the two ii»Vrit"'Vpetiii«bns,ViV.that 'M/s Simore' had filed 0s No. / i.OVi,in«:see.i<ing an injunction so as to restrain Ashok it iiingaia from carrying on mining activity over the i which had earlier been granted for mining it purposes to 'M / s Simore' by the State Government. It is not a matter of dispute, that Ashok Kumar Lingala was arrayed as a party--defendant therein. It is aiso not a mfiagawwfib 10 matter of dispute, that the aforesaid civil suit is still pending before the Civil Judge (Junior Division), Kudligi, wherein no temporary injunction has..Lb..een granted in favour of 'M / s Simore'.
7. The primary contention raised counsel for Ashok Kumar Lingala the right to carryout Inining activity overthe: private land of Smt. Yallamma, beciautse been authorised Yallamrna to carryout In this behalf it is also «the counsel appearing for Ashok did not have any such authorization 'from Smt;-"iiYa1lamma, and was as such, from iiiicarrying out mining activity over her "-"This contention at the hands of the leiarried V. .t5($}11:1Se1 for the petitioner in WP No. ii"=-'4.___"-t.17281"/2010 was the primary contention, for i"'iiestaiAi.1ishing his superiority, to carryout mining activity i _Mo_\§'er the land under reference.
8. In order to controvert the main contention advanced by the learned counsel for the petitioner in ll WP No. 17281/2010, learned counsel for 'M/s. Sirnore' relied on rules 59 and 60 of the Mineral Concession Rules 1960 (hereinafter referred to as the 'Mineral Rules'). Rules 59 and 60 aforementioned, V. extracted hereunder :
" 59. Availability of area ffor regrant-1'to_"'be.)V notified. W (1) No area- -- l .
(a) which was previously he-ldlvor whic.h"i's "
being held under a recoiriiiaissaizcewpeitrnitor... a prospecting licence or arnining lease;-lorlj
(b) which has been _f'res'erved "by_ the Government or' lolcaiiy authority for any purpose other thaji rniriri_ri;g;v or" f_ N (c) in rfespeet of -.whi'c'h the "order granting a perrnit on Ii-cef-nce«.:_o_rl' ~l.ea's'e{has» been revoked under._sLiibF_r1I1é'(1)'of rule 7§Aor sub--rule (1) i ofrul.e '"15 oi: Vsub.--1--'.ule '('1~)....o°r rule 31, as the . Cast' mé5*iib¢;"0r~«.(( s .
(cl) in respect o'f«--._yv1i'ich a notification has 'been"-i..ssued__ und'e.r7 sub--section (2) or sub- I7 V _; Section ('4.)V_ of section 17; or
(e) iivhich has been reserved by the State _ _Ci€3y.€I'4I'11':]f1C~'..1'1t or under section 17A of the Act, sha.l_Lbe::'aVailable for grant unless -
(i) {an'"entry to the effect that the area is available for grant is made in the register referred to in sub--rule (2) of rule 7D or sub- rule (2) of rule 21 or sub--rule (2) of ruie 40, it as the case may be; and
(ii) the availability of the area for grant is notified in the Officiai Gazette and specifying a date (being a date not earlier than thirty days from the date of the publication of such 1') gr notification in the Official Gazette) from which such area shall be available for grant :
Provided that nothing in this rule shallx", apply to the renewal of a lease in favour the original lessee or his legal , notwithstanding the fact that the lease:..ha's'--.'.',:'*-- i already expired :
Provided further that pp A reserved under rule 58 or Linderi section' A . ' i of the Act is proposed to be granteriltoi a Government company', .n"o._notification ~ufi.de'rl»» clause (ii) shall be required to issued, : Provided also: that V _ areal held under a V reconnaissance or a prospecting llicer;1'ce,'a,s tl1ei'--.case'i,rD.ay be, is grantedfin 't,ermsi~.ofisub--s'ectioh--~-(1) of section 11, nonotification--.,_un,de--r 'clause (ii) shall be requiied*ito;»'_be is'suie~ci_'.]., V V (2) in Government may, for reasons' to b'e..re,c_or.d'ed in writing, relax the provisions of s1;Ib_--r'u_le'{1) in any special case.
;60.. Premature "applications. ---Applications the a reconnaissance permit, _ i pr"o,spe"c.ting licence or mining lease in i '=respec"t of areas whose availability for grant " ._ gis"r.equired" to be notified under rule 59 shall, i 'if-
a), no notification has been issued, under ii = that rule; or ":[b) where any such notification has been issued, the period specified in the notification has not expired, shall be deemed to be premature and shall not be entertained."
13 A perusal of rule 59 of the Mineral Rules according to the learned counsel representing 'M / s Simore' leads to the inevitable conclusion, that an area which¥l"h.as already been allowed for mining purposes,_;'und'e.rj' existing mining lease, cannot be purposes to another party. In sp farajs .i Mineral Rules is concerned,.__. the._ COI'1te3.1tlQIJ__ of jthe learned counsel was, that the Government 'had no authority to entertain _ap_pli;cat'i*o_n., ior the grant of a mining lease, over anjarea~ which earlier mining lease had 1.-already-':7_Vb.ee:n___lgrariteld, __and that, such an app1icatio--n.,_xhas "t:o~. *--.considered as a "premature application? ' A .,':,.4'§"R'~?f'€1'$nceil"Was.«~'aiso made to section 19 of the Minerals (Development and Regulation) Act, 1.9S'7'li(hereiii:ifter referred to as 'Mines and Minerals lr.Act') byvvlthe learned counsel representing 'M / s Simore'. 19 aforesaid, is being extracted hereunder :
19. Prospecting licences and mining leases to be void if in contravention of Act ~--- Any reconnaissance permit, prospecting licence or mining lease granted, renewed, or acquired in contravention of the provisions of this Act \3«varw~9:.»_W*' } effect. , it 14 or any rules or orders made thereunder shall be void and of no effect.
Explanation -- Where a person has acquired more than one reconnaissance , permit, prospecting license or mining.x",:' _ _ lease and the aggregate area covered ' A such permits, licences or leases, as .ti'ie "
case may be, exceeds the maximurnarea' permissible under section.~6,»..,only V reconnaissance permit, ;:1rojspec'tir'ig ° licence or mining lease the"'.ac"quisitio--n'of _ "
which has resulted ,in__ such linaxirnumv , area being exceeded sh'a_1l"~~be deemedto, if void. i It was the contention of.;lthlle--.learne'dfcou__nsel, that the grant of any2_'leajse'vi_n"::ontI'aventi'onvoflthe provisions of the Mineral" he'i~tre'ated as void and of no effects: It _lils,5'._-th,e'i*efore;~«.._as_serted at the hands of the learned"counsel._forg'*'Nl'f«.sEimore' that the lease granted to Ashe}: Kurr1ar"Iling'ala on 6.2.2010 was Void and of no as to respond to the contention of Ashok Kuma1*...f;ingala, that only he could legitimately carryout if activity over the land leased out to hirn on
-»v.€)l.2.2010, as the owner thereof, had only authorised him (Ashok Kumar Lingala) to carryout the activity of extraction of iron ore from the said land. The instant I5 submission of the learned counsel for 'M/s Simore' was partly based on rule 72 of the Mineral Rules. Rule 72 is being extracted hereunder.
" 72. Payment of compensation?'itéljfiif --I~ owner of surface rights, etc. -~ (Ii)-._VThjae.. L" i holder of a reconnaissance or» prospecting license or mining lease. shall"b_e._ "
liable to pay to the occupier Aitheiiesurface of the land over which holds; . the 4 reconnaissance peiimi-ta or"~ pros'pect_ingV.V licence or mining lease",'<as» the ca~Se°rnVay be, such annual _compen.sation.._d as may _be determined by o£f?ice_ri 'appointed by the State Governmeriti-.b'y__ Vi;'.1Cv~tifi'cat.»ion_ in this behalf in the manner profvided' sub rules ' (2) t0 (4).-dd' " " ' ' "
(21 caseof agri'cul_tura1 land, the arnount._o_f ai3nuVal'i_'compensation shall be oi:;:::_. ..on_ the basis: of the average :._annualvi'._net'incorne from the cultivation of similar la_'nd~_for4th.e'previous three years. (3) In thei':;ase7"of non--agricultural land, 1"the am-0_uV.nt of annual compensation shall x_vorked».._.o.u't on the basis of average A annual letting value of similar land for the 3 _ 'prev_i'ou's~.three years.
3"
' a H (~?lé_)_ 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."
on rule 72 of the Mineral Rules, it was the
-assertion of the learned counsel for 'M/ s Simore', that even if 'M / s Simore' carried out mining activities over an 16 area which was owned by a private party, the afore- extracted Rule envisaged that the miner would be liable to pay compensation to the land owner, but owner could not prevent the lease holder . out mining activities even on private land,'"Whi_ch'"wVas as it"
part of the mining lease.
10. Learned counsel for-.__'M/ reliance on section 24A, of theii"lVii11.es Act, which is extracted hereiiiridper : g l' " 24.5. iliafjiiighis jiiailuliillifies of a h0ild8'_£'-ll: bf prstfy-s;i'ec_i';ing licence or ..1??i"*1¥1€1i":?'$°~.5" ' ' (1-3 oni"i,rhe'l ._ of a reconnaissance permit, license or mining lease underithi,s"'_Act and the rules made ,. _, thereunder, it shall be lawful for the l7 holder 'ofpvsucli permit, licence or lease, '4 i " " V' i..,"his'l'agentsVori his servants or workmen to _ e«nter"--the lands over which such permit, a,.:'1=ease"e-oVr.~ licence had been granted at all tiri*1es',:=during its currency and carry out _.ail,such reconnaissance, prospecting or a "'mining operations as may be vvprescribed :
Provided that no person shall enter into any building or upon an enclosed court or garden attached to a dwelling- house (except with the consent of the occupier thereof} without previously giving such occupier at least seven days' notice in writing of his intention to do 17 S0.
(2) The holder of a reconnaissance permit, prospecting licence or mining lease referred to in sub-section (1) shall.
be liable to pay compensation in manner as may be prescribed to_ft_he"»_'j"' occupier of the surface of the i"
granted under such permit, licencefor lease for any loss or darnag'e ..whi(:'h._is--_ likely to arise or has ar'iser:i"frorn*._o'r in it consequence of the recon.naissa'nce, A' mining or prospecting"'operations._ ' (3) The p_amoun_t...l:of, compiensatiqri payable unde'r"Vsub_¥seVcti'on,v(2}. shall be determined bylthe State Geimrriment in the manner pres_c'1'i.be-d_."u ' ' ' Based on 'Mir_1es_ and Mineral Act, it was th,Q- 'l*ea--rrl1ed counsel for 'M/s Simore',thatthe:4,'V1niz1in'g__lease having been granted to 'M / s Simolre', ovper-__thei 'area under reference, it had the ,.,righft_""to, .ent,er up'on...s.uch lands, and even the owners or could not interfere with such right.
Based ongallthe contentions noticed hereinabove it was ii'..,_l'V.,submitteid, that the right {if any) of Ashok Kumar being inferior to the right of the real owner, could not diminish, the superior right of 'M/s Simore', which was superior to the right of even the land owner. Supplemented with the contention based on Rule 72 of I8 the Mineral Rules, it was the contention of the learned counsel for 'M/s Simore', that liability if any, towards the private owner, could to be discharged in acce.rd«aii.ce with the procedure envisaged under the ~
11. At this juncture, it would,-Aaisoii'she-.re!evaf;1_t notice that the learned counsel for ll'l'»/I/s?;'SlAi'mo.reV'also placed reliance on a judgment: in Obli Grariites Vs. V ' 1980 _(2) Karnataka Law.V..Jvour1:»_.,al--v:h.3E?4.* was expressly placed on therein :
" 6."V~Ea:'i:Le.r, iioticevd that the State "Gio'ver'nme'nt has,,'granted a lease and has also exe.<':uted 'a.,,lease'deed specifying the '-area grantedltopiithe petitioner. When a lease is" _ granted and lease deed is exec:1_ted., .'--the licensee or the iessee is 'entitled-..to exploit the mineral found in A' Esther area onmthe terms and conditions of _ .,vthe._l"icense and lease granted thereto. lV.[in~es and Minerals (Regulation and Development) Act of 1957 or the Rules .frar{red under the said Act, do not a authorise the State Government or any
-of its officers to interfere with the working of the mines in the manner that has been done from time to time. An authority, however high it may he, must exercise its powers in conformity with the provisions of the Constitution and the Laws made and cannot exercise its powers in an arbitrary manner.
Whatever may be the dispute raised by Hind Nippon Rural Industries (P) Ltd., °""r'~5"%...t""a"
19
Government cannot exercise its power in an arbitrary manner. Sri Devadar has not been able to point out any provision of the Act or the Rules enabling the _ State Government to stop the quarrying operations from time to time. In my "
opinion, the criticism of Sri Achar that the powers excercised by the S*'L:ate_' Government besides being arbitrary',--...is-._i."~ é wholly unauthorised anc1~i»s..,l4iab.le tVo'=lj)e 4' ._ V interfered with by this]. Court. "is'gWeell',g.__g founded. I am pained to c_b"serve- _th.at_ ~ Government had exer.cised"'it_s"powerin Va 1 casual manner withoutvany regarclg to the "
rights of the petitioner and the 'injury "V; H' -.
that would be .~caused"ta it.
. Based on the.._aforeAs.ai.d:--i.observatiorisf it was the ] vehement conteiniti'o11yi:"of counsel for the petitioner-r.ep7:eseatingFM/s 'Simore', that there was no question in i11te1'ferirxg'ViV.riti? 'l the impugned orders dated LT 5.3.2010 end lng orderv-.to«'repudiate the submissions which the learned counsel for 'M / s Simore', for the petitioner in WP No. isv..,172a1~/@010, placed reliance on role 22 of the Mineral and more particularly to sub--rule (3)(i)(h) thereof. Rule relied upon by the learned counsel for Ashok Kurnar Lingala is being extracted hereunder : 20
" 22(3)(i) Every application for the grant of renewal of a mining lease shall be accompanied by --
(h) a statement in writing that applicant has, where the land is _not,"' owned by him, obtained surface rights' it over the area or has obtained consent of» I the owner for starting "
operations: vi "
Provided that no statenaenti' .
shall be necessar'y__where"-the. owned by the "Government-I V Provided fujrt-her_'tihat "1'l.(._)V consent of the owner ;for starti_r1,g _mining operations in 0--'r~.vpa_1'jt..--'thereof . may be 'furnished'~after..'Vte.g<ecu';i:)n of the lease"de}:d'b1it before 'entry'i--nto the said _ -------- also--._that"~novTurther consent wouidf-be required inthe case of renewal ....-----..
.i,_Vv'h4ere_ " __'nas already been obtained_ "grant of the lease."
.Vp_vehei1'ne-ntcontention of the learned counsel Lingala based on rule 22(3}(i}(h) iv a mining lease covering private land igowned Snit. Yaliaznma could under no circumstances "i::paj'c_cepted as Vaiid except with the express consent of land owner. it was submitted, that in the absence of permission from the private owner Srnt. Yallamma, the lease granted to 'M/s Simore', to the extent that it % '""t@'"*€h§*"'?re' 21 covered private land, owned by Smt. Yallamma, must be deemed to be invalid. It was, conversely submitted, that since the area over which lease had been Ashok Kumar Lingala is owned by Smt. . since, Smt. Yallamma had permitted V'K1,VJ'__"r{1c':I".','_V K' Lingala to carry on mining acti\r:'itie;§_"'ltlfiereongthe granted to Ashok Kumar iiiiigala dwasv Valid " V mining lease in respect of "Ac.c0rding1y it was contended, that "lease in respect of 3.36 hectares' .__of Village, Sandur Talui_k_,__V granted in fovour of Ashok consonance with the provisions' Minerals Act, as also, the Mining had -toi1bie"accepted as the only valid lease rfe5spe_ct of thVe=said land. Viewed accordingly, it is sulj'm.it'ted~ :tha't~«.Ashok Kumar Lingala has a superior right"ito out mining activities as compared to 'M / s 'V_Simore',:uir1 respect of 336 hectares of land comprised in A ":if1:l'i,eVi lease agreement dated 6.2.2010.
13. In order to draw any conclusions on the matter in respect of all the provisions referred to above, KT
--...., 22 we shall advert to the only submission advanced on behalf of Ashok Kumar Lingala, to over come the contentions advanced on behalf of 'M/ s Sirnore'. read along with learned counsel for the rival . effect of rule 22(3)(i)(h) of the Mineral Rtt:es,~'i1iwe"'eteV ofi 'at V the view, that the submission Ashok Kumar Lingala werehwithoiit :r'ef¢14?nt§¢"'t~to the r L' second proviso under.ruleVAV_.'li?;A(t%)(i~}.(h) 'loft/.theJ51\/Iineraj Rules, which leads todthe that it is possible to obtain___a respect of private real owner of such out mining operations' the consent of such owner would be liinfipverativerl '«..»Therefore, in our view, it is for the...State Government, to grant a mining 1ea.seeov'er"fj1*ivately owned land, even without the lessee n.ot'Vitob.tained the permission / consent of the real 4' _-- ' owner tlxereof.
'' " +.._l4'." On the basis of the deliberations recorded abioive, it is possible for us to record the following " "conclusions :-
Tmrwfifia 24
15. We have considered the submissions advanced by the learned counsel for the rival parties, as have been noticed in the foregoing paragraphs. We have also recorded some conclusions hereinabove. We shalbnow deal with the controversy in hand. From the issued by the Director, Department of 9 dated 5.3.2010 and 25.5.2010, wer'prhayetynr¢asE alternative or hesitation but-.___ to conc1udc',"l'l'tV'n.avt 'Eli/is Simore' had been anted a Iriiinina: leas'e,._in res ect of the same lanripiwyggll Lingala was awarded the" so, the claim of Ashok been considered for ' of' V over the area which comprisedlioflpart lease already granted to Siiifilovre', uas-.....tl<1e application of Ashok Kumar :'bound to be treated as a premature applicatior1li{'I._This inference is inevitable from a collective l'v.,readingV'lof rules 59 and 60 of the Mineral Rules, and 24A of the Mines and Minerals Act. On the issue whether 'M/s Simore' could carry out mining activities over the land owned by the private owner Smt. Yallarnrna, the provisions relied upon by the learned U'ai3aAA£:_&w»c3& 25 counsel representing 'M/ s Simore' leave no room for any doubt, that in case mining activity is carried out by 'M/ s Simore' over private land, compensation will have;"toi*.be paid by 'M/s Simore' to the private land rule 72 of the Mineral Rules. Butthe subm'i'ssi'on'"of_' ii"
learned counsel representing Ash-ok leave no room for any doubt.,_V."that 'M,/Vs Siri1.ore__';"in spite * V of the grant of a mining lea..seA""c_ov-ering"private owned land, would not be Lftogihunilaterally and' arbitrarily cond?L1c.t v't£'i,ereon Without the concent/ of:_the~._la;nd'_'ovvner Smt. Yallamma. The ins'tar3.t_concl:;.1esio~ng'is basedion the second proviso unde1~:~v«,_n'11Ae ' the Mining Rules which mandates,"-«.,that '._ui:le's.s: permission/ authorisation is theV'"ilan-downer, mining activity cannot be Even if it is assumed, that prior consent of ,o{i2;:Aér was not obtained by 'M/ s Simore' before "v..,obtaini,n;§g the lease deed from the State Government, second proviso under rule 22(3)(i)(h) of the Mining Rules extracted above, mandates that, prior to entering into private owned land for mining activities, %~%,_w 26 permission from the land owner is a necessary pre- requisite.
16. Having arrived at the aforesaid there is yet another issue which needs to V' The issue is a disputed questiongoifiifact. '.pTh.ei orders dated 5.3.2010 and 17281 / 2010), record a conc1"otei.findii2g. land it over which Ashok been" granted a mining iease is the leased to 'M/s Simore".'i':L.' by us hereinaboxiapipi that the factual positicyn order is correct. No materia1'jW'a.s placejd.befo1'«eV~"us, for our consideration by pp counselfirepresenting Ashok Kumar Lingala different finding. During the course of counsel for Ashok Kumar Lingala 'emphasised, that it was not Within his A to produce evidence so as to repudiate the 'aforesaid factual position. The aforesaid submission leads one to the inevitable inference that Ashok Kumar Lingaia has no material in his possession, on the basis of which the factual conclusion recorded in the orders S20 1 c (WP " .
'*"cMa_3"'2""
I7 27 dated 5.3.2010 and 25.5.2010 can be refuted. It would, however, be pertinent to mention, that this Court passed a motion bench order requiring the State ".".'I_-, Government to produce the original record. :'£'1;'e_>V"3._'1.'1tir_é original record was accordingly available during the hearing of this case.f__ W,e.i,pjer';ni'tte'd counsel for Ashok Kumar 1..=i'n-gala t'o,_e';«:ami,11'e',Vthe. sarne. Even therefrom, learned Ashok Kumar Lingala could finding of fact recorded in thegtwo viewed, it is not possible. finding on the factual We have noticed is pending between the parties. \lt.._iw.illViib_eopened to the rival parties to lead evi_denrj._e therein, iflthey are so advised, to determine the of the property over which mining leases haiveicilbeen granted to them. In case such evidence. leads to the conclusion, that the land over mining leases have been granted to the rival parties, do not overlap, then both of them would be entitled to carryout mining activities, under the lease agreements executed by the State Government in their 28 favour. In case the factual finding is to the contrary, then on account of the conclusions drawn hereinabove, the earlier licensee will have to be granted the su}3e1'i0r right to exclusively carry out mining activities?'Aé;js22ch._ _ 'M/s Simore' shall have a prefereptial right' W Kumar Lingala. In such an eventue'=1;1ity:', Ii0_ i~nterfe:re_n"c:ej will be called for with th.¢4«._.;mpugfied eo.rd..;.~s.....d..tea 5.3.2010 and 25.52010.
17. With the afo1~éssjd.%%obste£s<;;:{t¢1:2s, both the writ petitions are hereby diéjioetedv t t t' t M.."Cj:1ief Justice sdlé, Judge