Madhya Pradesh High Court
Laltadhar Dwivedi vs The State Of Madhya Pradesh on 16 August, 2017
Bench: Hemant Gupta, Vijay Kumar Shukla
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HIGH COURT OF MADHYA PRADESH, JABALPUR
WRIT PETITION NO.6163/2017
Laltadhar Dwivedi
-Versus-
State of M.P. and others
______________________________________________
CORAM:-
Hon'ble Shri Justice Hemant Gupta, Chief Justice,
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
Whether approved for reporting ? Yes/No
Whether approved for
reporting?
Law laid down The provision of Section 247(7) of M.P.Land
Revenue Code is applicable to private land also
for illegal mining. The law laid down in the case
of Pritam Singh Rawat by Single Judge is not a
correct law.
Significant paragraph Nos. 6, 7 and 8
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Shri S.P.Mishra, Advocate for the petitioner.
Shri Sanjay Dwivedi, Deputy Advocate General for the
respondents/State.
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ORDER
(16/08/2017) In the instant petition, the petitioner has challenged the legality and validity of the orders passed by the Revenue Authorities, in exercise of powers under Section 247(7) of Madhya Pradesh Land Revenue Code,1959 (hereinafter referred to as 'the Code") for illegal mining in the petitioner's land, Khasra No.508, 2 Village and Halka Bandogwa(Lodhi), Tehsil Hanumana, District Rewa.
2. The contention of the petitioner is that respondent no.4 passed an order ex-parte against him on 13-04-1998, whereby he has been held guilty for carrying out illegal mining and penalty of double of the market value of extracted/removed mineral. He preferred an appeal, which has also been dismissed by the respondent no.3, by order dated 02-08-2004. Being aggrieved by the said order, revision was preferred before the Board of Revenue, which has also remained unsuccessful and the orders passed by the Commissioner, Rewa Division and the Additional Collector, Rewa were affirmed.
3. The main contention of the petitioner that it was not a Government land and it was his own private land and therefore, his case could not have been dealt with by the Revenue Authorities under Section 247(7) of the Code but his case would be covered under the provisions of M.P. Minor Mineral Rules, 1996( in short referred as "Rules 1996"). He places reliance on a judgment passed by the Single Judge of this court in the case of Pritam Singh Rawat Vs. State of M.P. and others, 2014 SCC Online MP 4780.
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4. There is no challenge to the findings recorded by all the authorities , wherein it has been found that the petitioner has carried out illegal mining without following the provisions of Section 247 of the M.P. Land Revenue Code and also the Rules 1996. The issue raised by the petitioner that since it is a private land, therefore, the provisions of Section 247 could not have been invoked is no longer res integra and this issue has been examined by the Division Bench of this court in the case of Shyam Bihari Singh Vs. State of M.P. and others, 2008(4)MPLJ 255. The provisions of Sections 57 and 247 of the Code were considered by the Division Bench of this court in the case of Shyam Bihari Singh(Supra). Specific two questions were referred to the Division Bench as under :
(i) Whether under section 247 of the M.P. Land Revenue Code, 1959 for assignment of the right by the Government to any person in respect of land of which surface right vests in third person, the consent of land owner(Bhumiswami) is necessary?
Any grant by the Government without any consent of such Bhumiswami is sustainable under the law?.
(ii) Whether the Division Bench in
Premchand(supra), has rightly held that for
assignment of rights in respect of any minerals,
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mines and quarries by the Government to a third person under section 247 of the Code, an opportunity of hearing or consent of the Bhumiswami is not required.?
The said question was answered in the said case that the right over the minerals in respect of which a mining lease can be granted is vested in the State by virtue of section 57 read with section 247 of the Code. Accordingly, the State is owner of the minerals lying beneath even on a private land and as the owner of such minerals, the State can grant a lease in favour of a lessee by way of transfer or assignment. Neither Section10 of the 1957 Act nor Rule 22 of Mineral Concession Rules, 1960 lays down anywhere that a mining lease in respect of minerals vested in the Government where the surface land belongs to a private person cannot be granted without prior consent of the owner of such private land. In the absence of such clear statutory provisions, either in the 'Act 1957' or in the 1960 Rules, the State Government as the owner of the minerals can grant a mining lease in favour of a lessee without the consent of the owner of a private land , even where the minerals are embedded in such private land.
5. Learned counsel for the petitioner referred the judgment passed in the case of Trilokinath Agrawal Vs. State of M.P. 5 And others, I.L.R.(2013) MP 2331. However, in the case of Trilokinath Agrawal (supra), the Division Bench himself referred in para-8 that the issue regarding consent of Bhumiswami for grant of mining lease was not pleaded nor agitated. It is also mentioned that the grounds which were not raised before the writ court does not arise for consideration, as there is no foundation in the writ petition. In the said case the issue regarding consent of the Bhumiswai before grant of mining lease under section 247 was not directly in issue. However, in the case of Shyam Bihari Singh(supra) on a reference by the learned Single Bench, the Division Bench has specifically answered this question and held that no consent of the Bhumiswami is required before grant of the mining lease and no opportunity of hearing is required to be afforded to the Bhumiswami. It is further decided in the said case that the consent of the owner is required "for starting mining operations" and not for grant of mining lease as held in para-13 and therefore, before entering into the land and using the surface of the said land, the consent of the owner is required and the entry on the land for mining operations is subject to payment of the amount of compensation.
6. In the case of Pritam Singh Rawat(Supra), the learned Single Judge has failed to take into consideration the judgment passed by the Division Bench of this court in the case of Shyam 6 Bihari Singh(Supra), wherein it has been held that the state is owner of the minerals lying beneath even on a private land. Charging sections are section 247(7) and Section 247(8) of the Code which read as under :
"247(7) Any person who without lawful authority extracts or removes minerals from any mine or quarry, the right to which vests in, and has not been assigned by, the Government shall, without prejudice to any other action that may be taken against him be liable, on the order in writing of the Collector to pay penalty not exceeding a sum calculated at (four times) /2 (double) the market value of the minerals so extracted or removed. 247(8) Without prejudice to the provisions in sub section (7) the Collector may seize and confiscate any mineral extracted or removed from any mine or quarry the right to which vests in, an has not been assigned by the Government."
From a bare perusal of of the aforesaid sub section, it is clear that any person who extracts or removes minerals where from a private land or from the Government land without any lawful authority is liable to pay penalty not exceeding a sum calculated at four times market value of the minerals so extracted or 7 removed.
7. The same view has been reiterated by another Division Bench of this court in W.P.No.8896/2017 (Balmik and others Vs. State of M.P. and others) passed on 24-07-2017. In the case of Shyam Bihari Singh(Supra) and Balmik and others (supra), we hold that ratio laid down in the case of Pritam Singh Rawat (Supra) does not lay down the correct law.
8. In the facts of the present case, the finding has been recorded by the authorities that the petitioner has extracted minerals without lawful permission in accordance with law and therefore, he is liable to pay penalty as envisaged under Section 247(7) of the Code, we do not find any illegality in the orders passed by the Revenue Authorities and the Board of Revenue.
9. In view of the aforesaid factual matrix, we do not find any error in the orders passed by the Revenue Authorities and the Board of Revenue, hence the petition is dismissed. No order as to costs.
(HEMANT GUPTA) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
hsp.