Uttarakhand High Court
Chaman Pal vs State Of Uttarakhand & Others on 13 February, 2015
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No.423 of 2015 (M/S)
Chaman Pal ...Petitioner
Versus
State of Uttarakhand & others ... Respondents
Mr. Vikas Pandey, Advocate, for the petitioner.
Mr. T.P.S. Takuli, Brief Holder, for the State/respondent nos. 1 to 4.
Hon'ble Servesh Kumar Gupta, J.
On due consideration, the urgency application (IA No.939 of 2015) is hereby allowed.
Petitioner Chaman Pal has come up before this Court challenging the various orders (enclosed as annexure no.5 to the writ petition) granting lease to the respondent nos. 5 to 15 permitting them for mining on their private land.
Learned counsel for the petitioner has relied upon the judgment of the Full Bench of Hon'ble Apex Court in the case of "Bhagwan Dass Vs. State of U.P. & Others, (1976) 3 SCC 784", wherein the Hon'ble Apex Court has held that notwithstanding the ownership of the land of a private individual, any mines or minerals, which are under the sub-soil are vest in the State Government.
Hitherto, the matter had come up before this High Court as in the Writ Petition No. 1498 of 2009 (M/S), Maya Dixit Vs. State & another, wherein, this Court by its judgment dated 27th March, 2010 has held that in view of the Hon'ble Apex Court, Rule 72(1) is also applicable in case of the Chapter II and 30 days notice is mandatory and in view of the judgment rendered in Special Appeal, if the State Government does not choose to give the lease to the Corporation as per the policy and prefer to give to private individuals then the public notice contemplated under Rule 72(1) of the Act is to be given. The provisions be also complied with in case of short term permit/renewal of lease/fresh grant of lease.
Against the aforesaid judgment, the private lease holders namely Jeevan @ Putani & others filed SLP in the Hon,ble Apex Court and after hearing the learned counsel for the petitioner, the SLP was dismissed by the Hon'ble Apex Court being unsubstantial.
Likewise, another Writ Petition No.165 of 2011 (M/S) Rakesh Kumar Vs. State & Others alongwith connected petitions were also filed, this Court further affirmed the view laid down in Maya Dixit's case.
Learned counsel for the petitioner has argued that after formation of the State of Uttarakhand, U.P. Mines and Minerals (Concession) Rules, 1963 were adopted by the Uttarakhand Government by a notification dated 30th April, 2001 (annexure 2 to the writ petition) and thereafter, the said Rules were applicable in the State. As per Rule 72(1), it was mandatory for Collector/State Government to publish an advertisement giving one month's time to the public, enabling them to apply for granting of such lease. The lease policy of the Uttarakhand Government formulated in the year 2011 and promulgated on 18th November, 2011 was also in consonance of the Rule 72(1) of the said Rules but the Government in utter defiance of the law laid down by the Hon'ble Apex Court and this Court nay the policy formulated by the Government itself incorporated a little amendment in Rule 72(1) just after a month of such policy which envisages that the requirement of such Rules will except private land and at the strength of such amended Rule notified on 23rd December, 2011, the allotment of the lease have been made by the Additional Chief Secretary, Uttarakhand Government to the respondent nos. 5 to 15.
The petitioner has challenged the validity of the amended Rule 72(1) itself and has prayed quashing of such Rules.
Having considered the arguments of learned counsel for the petitioner, issue notice to the respondent nos. 5 to 15.
Meanwhile, it is hereby directed that the operation of the mining lease order issued by the Additional Chief Secretary, Uttarakhand Government shall remain stayed. No further mining will be done by the respondents pursuant of the allotment of the lease to them. Collector concern will ensure compliance.
Stay application (CLMA No.1637 of 2015) stands disposed of accordingly.
Counter affidavit be filed within four weeks. List after four weeks.
(Servesh Kumar Gupta, J.) (Vacation Judge) 13.02.2015 Nadim