Allahabad High Court
Northern Coal Fields Limited vs State Of U.P. And Others on 16 January, 2013
Bench: Ashok Bhushan, Abhinava Upadhya
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 11/10/2012 Delivered on 16/1/2013 Case :- WRIT - C No. - 50320 of 2010 Petitioner :- Northern Coal Fields Limited Respondent :- State Of U.P. And Others Petitioner Counsel :- P.N. Srivastava Respondent Counsel :- C.S.C. Hon'ble Ashok Bhushan,J Hon'ble Abhinava Upadhya,J
(Delivered by Hon'ble Ashok Bhushan,J) We have heard Shri A.K. Sinha, learned Senior Advocate, assisted by Shri P.N. Srivastava for the petitioner and Shri Yashwant Varma, learned Chief Standing Counsel for the respondents.
Counter and rejoinder affidavits in the writ petition having been exchanged, with the consent of the learned counsel for the parties, the writ petition is being finally decided.
The petitioner, which is carrying on two coal mine projects namely: "Krishnashila Project" and "Bina Project" in District Sonebhadra has come up in this writ petition praying for quashing the letters dated 23/3/2010 and 11/6/2010, by which letter the Divisional Forest Officer, Renukoot, (Sonebhadra), has written to the petitioner to deposit the lease rent for the year 2010-2011, of the forest land which has been transferred on lease to the petitioner respectively for 30 years and 23 years. A prayer has also been made for quashing the letter dated 31/7/2010, by which the Divisional Forest Officer, Renukoot, (Sonebhadra) wrote to the petitioner that since the petitioner has deposited the amount of lease rent for the period 2010-2011, under protest which is against the conditions on which the land was transferred, hence the matter is being referred to the higher level of the Government for cancelling the transfer.
Brief facts which emerge from the pleadings of the parties are: the petitioner a Government Company was incorporated with an object to carry on mining operation for extraction of coal and supply thereof to core sector and non-core sector. The Parliament has enacted an Act namely: The Coal Bearing Areas: (Acquisition and Development) Act, 1957 hereinafter called the " CBA Act, 1957". In accordance with the provisions of the CBA Act, 1957, the Central Government issued notification under sub-section (1) of Section 7 of the CBA Act, 1957, giving notice of its intention to acquire the lands specified in the Schedule and after consulting the Government of U.P., issued a declaration under sub-section (1) of Section 9 of the CBA Act, 1957, for acquisition of land mentioned in the schedule measuring 1657.16 hectares. By subsequent order dated 02/11/1982, in exercise of power under sub-section (1) of Section 11 of the CBA Act, 1957, it was directed the lands and rights so vested shall, w.e.f. 05/12/1981, instead of continuing to so vest in the Central Government, shall vest in the said Government Company namely: Central Coafields Limited, Ranchi (the petitioner). The petitioner submitted a proposal for its "Krishnashila Project" of 235.99 hectares land for obtaining approval of the Central Government for use of the land for mining purpose under the Forest (Conservation) Act, 1980 hereinafter called the "Act, 1980". Similarly, a proposal for 258 hectares forest land was submitted to the Central Government for "Bina Coal Project" for obtaining approval of the Central Government. In accordance with the provisions of the Act, 1980, Central Government vide its order dated 23/5/1996, granted approval for diversion of 258 hectares of forest land under the "Bina project" in accordance with the Act, 1980. The State Government consequently issued a letter dated 28/6/1998, communicating the approval granted by the Central Government. The State Government communicated its approval on certain conditions mentioned in the Government Order dated 28/6/1998. Similarly, with regard to the "Krishnashila Project", the Central Government vide its order dated 06/7/2006, granted prior approval for diversion of 235.99 hectares of forest land in accordance with the provisions of Section 2 of the Act, 1980. The Central Government while granting prior approval has laid down various conditions. The State Government, vide letter dated 27/7/2007, communicated approval of the Central Government. The State Government also vide letter dated 27/7/2007, communicated its decision for granting lease on certain conditions mentioned therein. The petitioner claims to carry on coal mining of open cast in consonance with the mining plan approved by the competent authority. The petitioner by virtue of Section 18-A of the CBA, Act, 1957, has been paying money equal to royalty as determined under Section 9 of the Mines and Minerals (Development and Regulation) Act, 1957, hereinafter referred to as "MMDR Act,1957". A letter dated 23/3/2010, was issued by the Divisional Forest Officer, asking the petitioner to deposit the lease rent for the year 2010-2011 for an amount of Rs 12423015/-. The petitioner was asked to deposit the said amount by Bank Draft within two weeks. Another letter was written on 11/6/2010, asking the petitioner that according to Condition No. 7 of "Krishnashila Project" and according to Condition No. 12 of "Bina Project" the lease rent is being taken from the petitioner. However, the lease rent for the year 2010-2011, has not been paid inspite of demand being made. The letter further states that unless the lease is not approved by the State Government, the dumping work in the area shall be stopped. After receiving the letter dated 11/6/2010, the petitioner sent a letter dated 23/7/2010, by which the payment of Rs. 1,43,35,608/- was made "Under Protest" reserving the right to challenge the same before the Appropriate Forum/Court. After receiving the letter dated 23/7/2010, the Divisional Forest Officer wrote to the petitioner on 31/7/2010, objecting the deposit made by the petitioner under protest. After receiving the letter dated 31/7/2010, petitioner sent his reply vide letter dated 6/8/2010, informing the Divisional Forest Officer that the petitioner is not violating any of the terms and conditions as imposed by the Ministry of Environment and forest or by the State Government. Petitioner stated that he has complied with all the conditions imposed by the Central Government and the State Government and has made payments towards compensatory afforestation, for demarcation of the land and other payments. After submitting the reply the petitioner has come to this Court by filing this writ petition in which following reliefs have been claimed:
"(I) Issue a writ, order or direction in the nature of certiorari quashing the letter dated 23.03.2010, 11.06.2010 and 31.07.2010 (annexure no.1,2 and 3 to this writ petition) has been issued by the respondent no.2, Divisional Forest Officer, Renukoot, forest Division, Sonebhadra U.P., being illegal and bad in law.
(II) Issue a writ, order or direction in the nature of mandamus directing the respondents through Officer, Agent and servants not to realize the least rent from the petitioner.
(III) Issue a writ, order or direction in the nature of mandamus directing the commanding respondent not to impose coercive act/action against the petitioner and further be pleased to direct the respondents not to stop and interfere in the petitioner's working at the above mention project i.e. krishnashila Project.
(IV) Issue a writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(V) Award the cost of the writ petition to the petitioner."
Counter affidavit as well as supplementary counter affidavit has been filed by the State to which rejoinder affidavit and supplementary rejoinder affidavit has also been filed by the petitioner.
Shri A.K. Sinha, learned counsel for the petitioner challenging the demand made by the respondents of lease rent contended that the demand is without jurisdiction. The land has been acquired under the CBA Act, 1957 in the year 1981 and thereafter on 02/11/1982, the same has been vested in the petitioner's company by the Central Government. It is submitted that the State Government has no legislative competence on the subject which is covered by MMDR Act, 1957, and the State Government is entitled only for royalty as per Section 18-A of the CBA Act, 1957 which is being paid by the petitioner. Imposition of lease rent is beyond the competence of the State Government. The petitioner had also obtained prior approval of the Central Government as required by Section 2 of the Act, 1980 and has complied with all the conditions imposed by the Central Government. The Divisional Forest Officer or the State Government cannot demand any lease rent. The payment made after the letter dated 11/6/2010 was for the lease rent for the year 2010-2011 and the same was under protest.
Shri Yashwant Verma, learned Chief Standing Counsel, replying the submission of the learned counsel for the petitioner contended that the petitioner has been throughout making the payment of lease rent for "Krishnashila project" for the year 2007-2008, 2008-09, 2009-2010 and 2010-2011. For "Bina project" it is submitted that the payment has been made of lease rent since the period 1998-99. Payment for the year 2010-11, has also been made, but under protest. It is submitted that under the Government Order dated 28/6/1998, with regard to "Bina Project", there was a condition of payment of 10% annual lease rent and similarly in the Government Order dated 27/7/2007, with regard to "Krishshila project" there was a similar condition of payment of lease rent and the petitioner having made the payment continuously are now estopped from challenging the demand of lease rent.
Referring to the supplementary counter affidavit filed by the State he submitted that the land comprising in "Krishashila project" and "Bina project" have been declared as "reserved forest" by issuance of notification under Section 20 of the Indian Forest Act, 1927 "hereinafter called the "Act, 1927". Copy of the notifications dated 15/5/1973, 10/5/1974 and 15/5/1974 have been annexed along with the supplementary counter affidavit as SCA-4, 5 and 6. It is submitted that the land is also recorded in the revenue records as "reserved forest". In so far as the notification issued under the Act, 1957 is concerned, Shri Yashwant Varma, submitted that while acquiring the land the State Government was never consulted, hence the acquisition is not in accordance with law. It is further submitted that the land having been declared as "reserved forest" by notification issued under Section 20 of the Act, 1927, the same could not have been diverted nor acquired under the CBA Act, 1957.
Learned counsel for the parties have placed reliance on the various judgments of the Apex Court which shall be hereinafter considered while considering the submissions in detail.
The main issue to be considered in this writ petition is as to whether the petitioner is under an obligation to make the payment of lease rent as demanded by the Divisional Forest Officer, Renukoot, (Senobhadra).
The CBA Act, 1957, was enacted by the Parliament. The preamble of the CBA Act, 1957, reads as under:
"An Act to establish in the economic interest of India greater public control over the coal mining industry and its development by providing for the acquisition by the State of unworked land containing or likely to contain coal deposits or of rights in or over such land, for the extinguishment or modification of such rights accruing by virtue of any agreement, lease, licence or otherwise, and for matters connected therewith."
Under Section 4 of the Act, 1957, Whenever it appears to the Central Government that coal is likely to be obtained from land in any locality, it may, by notification in the Official Gazette, give notice of its intention to prospect for coal therein.
Section 7 of the Act, 1957, contains power to acquire land or of any rights in or over such land notified under sub-section (1) of Section 4.
Sections 7 and 9 of the Act, 1957 are as follows:
"7.(1) If the Central Government is satisfied that coal is obtainable in the whole or any part of the land notified under sub- section (1) of Section 4, it may, within a period of two years from the date of the said notification or within such further period not exceeding one year in the aggregate as the Central Government may specify in this behalf, by notification in the Official Gazette, give notice of its intention to acquire the whole or any part of the land or of any rights in or over such land, as the case may be.
(2) If no notice to acquire the land or any rights in or over such land is given under sub- section (1) within the period allowed thereunder, the notification issued under sub- section (1) of section 4 shall cease to have effect on the expiration of three years from the date thereof.
9.(1) [Declaration of acquisition. When the Central Government is satisfied, after considering the report, if any, made under section 8 that any land or any rights in or over such land should be acquired, a declaration shall be made by it to that effect [and different declarations may be made from time to time in respect of different parcels of any land, or of rights in or over such land, covered by the same notification under sub- section (1) of section 7, irrespective of whether one report or different reports has or have been made (wherever required) under sub- section (2) of section 8]:
[Provided that no declaration in respect of any particular land, or rights in or over such land, covered by a notification under sub-section (1) of section 7, issued after the commencement of the Coal Bearing Areas (Acquisition and Development) Amendment and Validation Act, 1971 , shall be made after the expiry of three years from the date of the said notification:
Provided further that, where a declaration] relates to any land or to any rights in or over land belonging to a State Government which has or have not been leased out, no such declaration shall be made except after previous consultation with the State Government.
(2) [ Every declaration] shall be published in the Official Gazette and-
(a) in any case where land is to be acquired, shall state the district or other territorial division in which the land is situate and its approximate area; and, where a plan shall have been made of the land, the place where such plan may be inspected;
(b) in any case where rights in or over such land are to be acquired, shall state the nature and extent of the rights in addition to the matters relating to the land specified' in clause (a); and a copy of every such declaration shall be sent to the State Government concerned."
The notification under Section 7 was issued by the Central Government on 23/12/1980 and thereafter a declaration was issued under Section 9 of the Act, 1957. It is useful to quote the notification issued by the Central Government on 17/11/1981 which is to following effect:
" New Delhi, the 17.11.1981 NOTIFICATION
S.O.3303 WHEREAS by the notification of the Government of India in the Ministry of Steel, Mines and Coal (Department of Coal) No. S.O. 102 dated the 23rd December, 1980 under sub-section (1) of section 7 of the Coal Bearing Areas (Acquisition and Development) Act, 1957, (20 of 1957), the Central Government gave notice of its intention to acquire the lands specified in the Schedule appended to that notification;
AND WHEREAS the competent authority in pursuance of section 8 of the said Act has made his report to the Central Government;
AND WHEREAS the Central Government, after considering the report aforesaid and, after consulting the Government of Uttar Pradesh, is satisfied that the lands measuring 4095.00 acres (approximately) or 1657.16 hectares (approximately) described in the Schedule appended hereto should be acquired;
NOW THEREFORE, in exercise of the powers conferred by sub-section (1) of section 9 of the said Act, the Central Government hereby declares that the lands measuring 4095.00 acres (approximately) or 1657.16 hectares (approximately) described in the said Schedule are hereby acquired;
2. The plans of the area covered by this notification may be inspected in the Office of the Collector, Mirzapur (Uttar Pradesh) or in the Office of the Coal Controller, 1, Council House Street, Calcutta, or in the Office of Central Coalfields Limited (Revenue Section), Darbhanga House, Ranchi (Bihar).
Schedule Kakari Block (Singrauli Coalfield) District-Mirzapur.
Uttar- Pradesh..........."
Section 10 of the Act, 1957 provides for vesting the land or the rights in or over the land in the Central Government.
Section 11 of the Act, 1957 gives power to Central Government to direct vesting of right in a Government Company. Sections 10 and 11 of the Act, 1957 are quoted below:
"10.Vesting of land or rights in Central Government.
(1) On the publication in the Official Gazette of the declaration under section 9, the land or the rights in or over the land, as the case may be, shall vest absolutely in the Central Government [ free from all encumbrances].
(2) Where the rights under any mining lease [granted or deemed to have been granted by a State Government] to any person are acquired under this Act, the Central Government shall, on and from the date of such vesting, be deemed to have become the lessee of the State Government as if a mining lease under the Mineral Concession Rules had been granted by the State Government to the Central Government, the period thereof being the entire period for which such a lease could have been granted by the State Government under those rules.
11 (1)Power of Central Government to direct vesting of land or rights in a Government company.
Notwithstanding anything contained in Section 10, the Central Government may, if it is satisfied that a Government company is willing to comply, or has complied, with such terms and conditions as the Central Government may think fit to impose, direct, by order in writing, that the land or the rights in or over the land, as the case may be, shall, instead of vesting in the Central Government under section 10 or continuing to so vest, vest in the Government company either on the date of publication of the declaration or on such other date as may be specified in the direction.
(2) Where the rights under any mining lease acquired under this Act vest in a Government company under sub- section (1), the Government company shall, on and from the date of such vesting, be deemed to have become the lessee of the State Government as if a mining lease under the Mineral Concession Rules had been granted by the State Government to the Government company, the period thereof being the entire period for which such a lease could have been granted by the State Government under those rules; and all the rights and liabilities of the Central Government in relation to the lease or the land covered by it shall, on and from the date of such vesting, be deemed to have become the rights and liabilities of the Government company."
By order dated 02/11/1982, the Central Government in exercise of power under sub-section (1) of Section 11 of the Act,1957 directed that the lands and rights so vested by declaration dated 17/11/1981 shall w.e.f. 05/12/1981 instead of continuing to so vest in the Central Government, shall vest in the Government Company namely: Central Coal Field Ltd, Ranchi. Copy of the order of the Central Government dated 02/11/1982, has been filed as Annexure-6A to the writ petition.
In so far as the case of the petitioner regarding acquisition of land in question under the CBA Act, 1957 is concerned, the State Government has not disputed the issuance of notifications under the CBA Act, 1957.
Two submissions have been sought to be raised by the State Government which is also pleaded in the supplementary counter affidavit. First submission as stated in paragraph 11 is as under:
"11. That, the answering respondent further states that from a perusal of the records available in the concerned departments, there appears to be no record, which may establish or prove any prior consultation or concurrence of the State Government for the transfer or acquisition of the revenue plots comprising the two Blocks in question under the Coal Bearing Areas Acquisition & Development Act, 1957"
The submission raised by the learned counsel for the respondents in the supplementary counter affidavit is that there appears to be no record, which may establish or prove any prior consultation or concurrence of the State Government, suffice it to say that notification dated 17/11/1981 specifically records as following:
"AND WHEREAS the Central Government, after considering the report aforesaid, and, after consulting the Government of U.P., is satisfied".
It is not the case of the respondents at any point of time that the notification issued under the CBA Act, 1957, were ever challenged by the State. The plea that there is no record, which may establish or prove that any prior consultation or concurrence of the State Government is a plea which has no legs to stand. The notification having never been challenged by the State and the notification having clearly mentioned that the decision so taken was after consultation of the State of U.P., the said plea is unsustainable.
The second submission of learned Chief Standing Counsel is that land having been declared as Reserved Forest under Act, 1927 its status shall continue as Reserved Forest which shall always vest in the State Government.
Shri Yashwant Varma, learned Chief Standing Counsel has referred to the notification issued under Section 20 of the Act, 1927, in which the land is said to be declared as Reserved Forest. The Act, 1927, was enacted to consolidate the law relating to forests. Under the Act, 1927, the State Government has power to reserve forest. Section 3 of the Act, 1927 provides as follows:
"3. Power to reserve forests.-The State Government may constitute any forest-land or waste-land which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest-produce of which the Government is entitled, a reserved forest in the manner hereinafter provided."
Section 4 of the Act, 1927, empowers the State Government to issue a notification declaring that it has been decided to constitute such land as a reserve forest. The notification under Section 20 is contemplated declaring forest reserved. Section 20 of the Act, 1927 is quoted below:
"20.Notification declaring forest reserved.(1) When the following events have occurred, namely:
(a) the period fixed under section 6 for preferring claims have elapsed and all claims if any made under that section or Section 9 have been disposed of by the Forest Settlement-officer;
(b) if any such claims have been made, the period limited by Section 17 for appealing from the orders passed on such claims has elapsed, and all appeals (if any) presented within such period have been disposed of by the appellate officer or Court; and
(c) all lands (if any) to be included in the proposed forest, which the Forest Settlement-officer has, under Section 11, elected to acquire under the Land Acquisition Act, 1894 (1 of 1894), have become vested in the Government under section 16 of that Act, the State Government shall publish a notification in the Official Gazette, specifying definitely, according to boundary-marks erected or otherwise, the limits of the forest which is to be reserved, and declaring the same to be reserved from a date fixed by the notification.
(2) From the date so fixed such forest shall be deemed to be a reserved forest."
The notification issued under Section 20 of the Act, 1927 has not been disputed.
From the above notification it is clearly established that the aforesaid land was declared as a reserved forest in the year 1973-74 as has been claimed by the State. The enactment which is next to be noted is the Act, 1980 which has been enacted for the conservation of forests and for matters connected therewith. Section 2 of the Act, 1980 provides as follows:
"2. Restriction on the dereservation of forests or use of forest land for non-forest purpose. Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing-
(i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any non-forest purpose;
(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned,managed or controlled by Government;
(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.
Explanation - For the purposes of this section, "non-forest purpose" means the breaking up or clearing of any forest land or portion thereof for-
(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants;
(b) any purpose other than reafforestation;
but does not include any work relating or ancillary to conservation, development and management of forests and wildlife, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes."
There is material on the record that at the instance of the petitioner the State Government, itself has submitted proposal to the Central Government for granting prior approval by the Central Government as contemplated by Section 2 of the Act, 1980, and after considering the proposal of the petitioner and the report of the State Government, the Central Government has granted prior approval to both the projects "Krishnashila" and "Bina". Copy of the approval granted by the Central Government under Section 2 of the Act, 1980 has been brought on record by the State itself in its counter affidavit. Copy of the approval dated 23/5/1996, of the Central Government, regarding diversion of 258 hectares of forest land under the Bina Project is filed as Annexure CA-3B and the copy of the order of the Central Government dated 06/7/2006 for diversion of 235.99 hectares of forest land for "Krishnashila" project has been filed as Annexure CA-3. It is useful to note the contents of the letter by which the Central Government has granted approval. Para 2 of the letter is quoted as below:
"After careful consideration of the proposal of the State Government and on the basis of the recommendations of the above mentioned Advisory Committee, the Central Government granted in-principle approval vide letter of even no. dated 16.1.2005 subject to certain conditions. In compliance of these conditions was submitted vide Nodal Officer's letter No.1318/11-C/24 (Sonbhadra) dated 19.5.2006. After consideration of the proposal and compliance of various conditions by the State Government, the Central Government hereby conveys its approval under Section-2 of the Forest (Conservation) Act, 1980 for diversion of 235.99 ha of forest land for Krishnashila Open Cast Project in favour of M/s Northern Coalfields Limited in district Sonbhadra, U.P. subject to the fulfilment of following conditions:-
i Legal status of the forest land shall remain unchanged.
ii Compensatory Afforestation will be raised and maintained over degraded forest land double in extent at the cost of User Agency.
iii The State Government shall deposit all the funds received from the User Agency with the Ad-hoc Body of Compensatory Afforestation Fund Management ad Planning Authority (CAMPA) In Account No. CA 1574 of Corporation Bank (A Government of India Enterprises), Block 11, Ground Floor, C.G.O. Complex, Phase-1, Lodhi Road, New Delhi-110003, as per the instructions communicated vide letter No.5- 2/2006-FC dated 20.05.2006.
iv. The non-forest land identified for raising Compensatory Afforestation shall be notified by the State Government as R.F. under Section 4 or R.F. under Section-29 of the Indian Forest Act, 1927 or under the relevant Section(s) of the Local Forest Act, as the case may be, within a period of six months. The Nodal Officer (F.C.) shall report compliance.
v.Felling of trees shall be done only when necessary and that too under strict supervision of and with the prior permission of the State Forest Department.
vi.No labour camps shall be set up in the forest area nor any habitation shall be allowed to come up in the area.
vii.The forest land shall not be used for any purpose other than that specified in the proposal.
viii.The forest land thus diverted shall be non-transferable. Whenever and whatever extent of forest land is not required by the User Agency, it shall be surrendered to the State Forest Department after proper rehabilitation under intimation to this Ministry.
ix.Any, other condition that the C.C.F. (Central), Regional Office, Lucknow, may impose from time to time for protection and improvement of flora and fauna in the forest area, shall also be applicable.
(S.K. Chadha) Assistant Inspector General of Forests"
After the letter of the Central Government dated 06/7/2006, the State Government has also issued a letter dated 27/7/2007. One of the conditions in the letter dated 27/7/2007, Condition No. 7 on which reliance has been placed by Shri Yashwant Varma for the State is relevant which is to the following effect:
" iz'uxr ouHkwfe dk orZeku cktkj nj ij ftykf/kdkjh ls ewY; fuf'pr djkdj ewY; ds cjkcj izhfe;e ,oa izhfe;e dk nl izfr'kr okfZ"kZd yht js.V ysdj ;kpd foHkkx dks ou Hkwfe dk dCtk fn;k tk;sxk!"
From the facts as noted above, it is clear that the acquisition of land which comprised in the reserved forest was under the CBA Act, 1957 and was made by the Central Government in the year 1981 i.e. subsequent to the declaration of the area as reserved forest. The fact that the area was comprised in the reserved forest was no fetter on the right of the Central Government to acquire the coal bearing area under the Act, 1957 and after the acquisition of area under the Act, 1957, the consequence as contemplated by the Act, 1957 shall ensue, i.e. land or the rights in or over the land shall vest absolutely in the Central Government free from all encumbrances.
Learned counsel for the petitioner has placed reliance on the Constitution Bench judgment of the Apex Court in State of West Bengal Vs. Union of India & Ors, AIR 1963, SC 1241 in which case all aspects regarding the rights of the State qua the Act, 1957 have been considered. A suit was filed by the State of West Bengal against the Union of India for a declaration that Parliament is not competent to make a law authorizing the Union Government to acquire land and rights in or over land, which are vested in the State. All aspects of the matter were considered and the Apex Court held that in the provisions of the CBA Act, 1957 the words "any land" or "any rights in or over such land" would appear to cover every interest regardless of the person or authority who owns them, including those of a State Government. Following was laid down in paragraphs 15,16 and 19:
"15.The preamble, therefore, does not support the argument that the Act was intended to acquire only the rights of individuals, derived from prospecting licences or based on leases, and to exclude from the purview of the Act the rights of States in coal-bearing land. Section 4, relating to the issue of a preliminary notification of the intention to prospect for coal in any given area, makes reference to "lands", without any qualifications, and S.5, which is consequential' upon S. 4 lays down the effect of such..... notifications on prospecting licences and mining leases. S. 7 also speaks of giving notice to the Government's intention to acquire the whole or any part of the land, notified as aforesaid, or any rights in or over such land. S. 9, which provides for a declaration of acquisition has also used the same expression, "any land or any rights in or over such land." The proviso to S. 9, which is in these terms "Provided that, where the declaration relates to any land or to any rights in or over land belonging to a State Government which has or have not been leased out, no such declaration shall be made except after previous consultation with the State Government"
Is very important in this connection. This proviso for the first time makes specific reference to any land or to any rights in or over land "belonging to a State Government." S.9A authorises the Central Government to dispense with the necessity of complying with the provisions of S.8, which provides for hearing any objections raised to the proposal to acquire any land which is notified under S.7 as the subject-matter of acquisition. Ordinarily, if a notification is made by the Central Government of its intention to acquire of the whole or any part of the land or of any right in or over land, notified under S.4, it is open to any person interested in the land to object to the acquisition of the whole or any, part of the land or of any rights in or over such land. If any such objection is raised, an opportunity has to be given for hearing such an objection or objection, by the "competent authority." But under S. 9-A, the Central Government, if it is satisfied that it is necessary to acquire immediately the whole or any part of the land, or any rights in or over such land, may direct that S.8 shall not come into operation, and, therefore, no proceedings thereunder would be entertainable. Section 10 lays down the consequences of the notification of declaration of acquisition under S.9. On such a declaration the land, or the rights in or over the land, shall vest in the Central Government, free from all encumbrances, and under sub-section (2) where the rights acquired happen to have been granted under a mining lease by a State Government, the Central Government shall be deemed to have become the lessee of the State Government. A good deal of argument was addressed to us as to the significance of the provision, contained in S.19 (2) of the Act. They will be dealt with later in the course of this judgment. But it is open to Government to direct by an Order in writing that the land or the rights in or over the land, instead of vesting in the Central Government under S.10 shall vest in a Government Company, which has expressed its willingness to comply with the terms and conditions imposed by the Central Government. A 'Government Company means a company as defined in S.617 of the Companies Act, 1956. In the case where the land or the rights in or over the land become vested in a Government Company, under S.11 (1), that company shall be deemed to have become a lessee of the State Government, as if the Company had been granted the mining industry by the State Government. under the Mineral Concession Rules. Compensation under the Act on account of prospecting licences ceasing to have effect, or the rights under a mining lease having been acquired, or for any land acquired under S.9, has been provided for and the rules lay down the procedure for determining such compensation, in S.13. It is clear on a reading of the provisions for compensation in that section that no compensation has been provided for in respect of minerals lying unworked underground. Section 14 to 17 lay down the method of determining compensation and other cognate matters relating to payment of compensation. The rest of the provisions of the Act do not bear on the present controversy and, therefore, need not be adverted to.
16.On a bare reading of the provisions of the Act, the expression "any land" or "any rights in or over such land" would appear to cover every interest regardless of the person or authority who owns them, including those of a State Government. But it has been argued that on a close examination of the provisions aforesaid of the Act and keeping certain general principles of interpretation of Statutes in view, the conclusion follows that the Act does not cover any property or interest in or over land belonging to a State Government. We have already indicated that neither the statement of objects and reasons nor the preamble are of any help to the plaintiff or to States which have intervened and have claimed that any property belonging to a State Government is outside the scope and effect of the Act.
19. It will thus appear that on a proper interpretation of the relevant provisions of the Act, it cannot be said that either in express terms or by necessary implication the provisions of the Act are inapplicable to rights or interests of a State Government or that such lands are excluded. It is plain that the Act is intended to cover land or rights in or over land belonging either to an individual or to a juristic person. Such land may comprise not only surface rights but also mineral rights. The land to be acquired by the Central Govt. might be virgin soil unencumbered by any prospecting licences or mining leases granted by the State or by an intermediary, using the expression to mean all interests below the State. Such an interest as aforesaid may be vested in a State or different interests may be vested in different persons by virtue of leases or licences granted by proprietors in permanently settled States or by tenure-holders who have expressly obtained mining rights. The Act, therefore, had to use the compendious language "'land or any interest in or over land" to cover all those diverse rights and interests which the Central Government would be interested to acquire in order to have a free hand in developing the land for coal mining in the public sector, as it is called. The Act may have been more artistically drafted but construing it as it is, we have no doubt that Parliament intended to acquire all rights and interests in coal bearing land with a view to prospecting for coal and for exploiting coal-bearing mines. It must, therefore, be held that the supplementary issue as regards the interpretation of the Act joined between the parties as a result of the amendment of the plaint must be decided against the plaintiff."
The Constitution Bench also considered the question as to whether after the enactment of the CBA Act, 1957 and the MMDR Act, 1957 which contains the declaration by the Union, the State shall have any legislative competence with regard to mineral. The Apex Court also considered as to whether it is open for the Parliament to acquire coal bearing area which vested in the State. Holding that the Parliament has power to acquire land, following was laid down in paragraphs 41 and 68:
"41.The power to acquire land sought to be exercised by the Union, which is challenged by the State of West Bengal, is power to acquire in exercise of authority conferred by Sections. 6, 7 and 9 of the Coal Bearing Areas (Acquisition and Development) Act, 1957. The Act was enacted for establishing in the economic interest of India greater public control over the coal mining industry and its development by providing for the acquisition by the State of land containing or likely to contain coal deposits or of rights in or over such land for the extinguishment or modification of such rights accruing by virtue of any agreement, lease, licence or otherwise, and for matters connected therewith. By Entries 52 and 54 of List I the Parliament is given power to legislate in respect of :
(52) "Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest."
(54) "Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to the expedient in the public interest."
In exercise of powers under Entry 36 of the Government of India Act, 1935 which corresponds with Entry 52 of the Constitution the Central Legislature enacted the Minerals & Mining (Regulation &. Development) Act, 1948, LIII of 1948. By S. 2 of the Act it was declared that it was expedient in the public interest that the Central Government should take under its control the regulation of mines and oilfields and development of minerals in the extent specified in the Act. 'Mine' was defined under the Act as meaning any excavation for the purpose of searching for or obtaining minerals and includes an oil well. No mining lease could be given after the commencement of the Act, otherwise than in accordance with the rules made under the Act. By S. 13 the provisions of the Act were to be binding on the Government, whether in the right of the Dominion or of a State. By the declaration by S.2 the minerals became immobilized. The Act is on the Statute Book, and the declaration, in the future application of the Act since the Constitution must also remain in force, as if it were made under Art. 52 of the Constitution.
68. No provision in the Constitution suggesting a restricted meaning of the word 'property' in the context of legislative power has been brought to our notice. Regard being had to the extensive powers which the Union Parliament and Executive have for using State property, in the larger public interest, the restriction suggested that the power does not extend to the acquisition of property of the States does not seem to be contemplated. By making the requisite declarations under Entries 54 of List 1, the Union Parliament assumes power to regulate mines and minerals and thereby to deny to all agencies not under the control of the Union, authority to work the mines. It could scarcely be imagined that the Constitution makers while intending to confer an exclusive power to work mines and minerals under the control of the Union, still prevented effective exercise of that power by making it impossible compulsorily to acquire the land vested in the States containing minerals. The effective exercise of the power would depend if such an argument is accepted not upon the exercise of the power to undertake regulation and control by issuing a notification under Entry 54, but upon the will of the State in the territory of which mineral bearing land is situate. Power to legislate for regulation and development of mines and minerals under the control of the Union, would by necessary implication include the power to acquire mines and minerals. Power to legislate for acquisition of property vested in the State cannot therefore be denied to the Parliament if it be exercised consistently with the protection afforded by Art. 31."
The above Constitution Bench judgment of the Apex Court clearly lays down that the State Legislature has no legislative competence with regard to mines and minerals since the field is occupied by the declaration made by the Union and the field is covered by parliamentary legislation under List I Entry 54.
A Division Bench of the Patna High Court had occasion to consider similar submissions in Managing Director, National Coal Development Corporation Ltd and etc. Vs. State of Bihar, & Ors, AIR, 1984 Patna 280, which also supports the contention of the learned counsel for the petitioner. Following are the relevant observations made in paragraphs 7 and 9 of the said judgment which are quoted below:
"7. In the State counter affidavit in C. W. J. C. 2462 of 1979, it has been stated that a relationship of lessor and lessee exists between the State Government and the petitioner-company. This stand does not appear to be correct. As has been pointed out, the present cases do not attract Section 10 (2) of the Acquisition Act inasmuch as there were no mining leases. Admittedly, these cases relate to virgin mineral which continues to be unworked till now. The case is governed by Section 10 (1) and its language in no uncertain terms states that the entire interest of the State vests absolutely in the Central Government free from all encumbrances. The State is completely divested of all its rights and a relationship of lessor and lessee does not continue between the State and the Central Government (or for that matter the petitioner-company).
9. The State counter-affidavit in C. W. J. C. 2462 of 1979 suggests that Dead Rent is payable under the provisions of the Mineral Concession Rules, 1960. There is no merit in this plea either. The rules were framed under Section 13 of the Development Act. Clause (i) of Section 13 (2) authorises the Central Government to make rules for fixing and collection of Dead Rent etc. The liability to pay Dead Rent arises under Section 9A of the Development Act and not under the Rules. The Rules merely deal with several aspects of this liability already created. It is, therefore, not possible to accept the State's demand on this basis. So far as the liability under Section 9A of the Development Act is concerned, the same is confined to cases of a mining lease. Since there is no relationship of lessor and lessee between the State and the petitioner, no question of payment of Dead Rent can arise. Mr. Additional Advocate General, who represents the State of Bihar in all these three cases, therefore, very rightly has not relied on the counter-affidavit. For the reasons mentioned above, I hold that the demand for payment of Dead Rent as mentioned in the impugned annexure is illegal."
Much emphasis has been laid down by Shri Yashwant Verma, learned Chief Standing Counsel on the act of the petitioner having made the payment of lease rent throughout upto the year 2009-10 and protest was raised only when the demand was made for the payment of lease rent for the year 2010-11. He has placed reliance on the judgment of the Apex Court in Bharathidasan University & Anr Vs. All India Council for Technical Education & Ors, (2001) 8 SCC, 676. All India Council for Technical Education has made regulations under the All India Council for Technical Education Act, 1987. The Bhartidasan University was running technical courses. A Writ Petition No. 14558 of 1998 was filed by the All India Council for Technical Education in the Madras High Court seeking a mandamus to forebear the University authorities from running/conducting any courses and programmes in those technical courses. One of the question which was considered was as to whether the regulations framed by the All India Council for Technical Education were applicable and whether the University was obliged to take approval. In the said context an observation was made by the Apex Court that when the regulation has been made outside the scope, the Courts are bound to ignore them when the question of their enforcement arises. He submitted that since now the provisions of the CBA Act, 1957 are enforced it can be ignored by the State. Reliance has been placed on the observation of the Supreme Court in paragraphs 13 and 14 which are quoted below:
"13. The AICTE cannot, in our view, make any regulation in exercise of its powers under Section 23 of the Act, notwithstanding sub-section (1), which though no doubt enables such regulations being made generally to carry out the purposes of the Act, when such power is circumscribed by the specific limitation engrafted therein to ensure them to be "not inconsistent with the provisions of the Act, and the Rules....." So far as the question of granting approval, leave alone prior or post, Section 10(1)(k) specifically confines the limits of such power of AICTE only to be exercised vis-à-vis technical institutions, as defined in the Act and not generally. When the language is specific, unambiguous and positive, the same cannot be over-looked to give an expansive meaning under the pretext of a purposive construction to perpetuate an ideological object and aim, which also, having regard to the Statement of Objects and Reasons for the AICTE Act, are not warranted or justified. Therefore, the regulation insofar as it compels the universities to seek for and obtain prior approval and not to start any new department or course or programme in technical education (Regulation 4) and empower itself to withdraw such approval, in a given case of contravention of the regulations (Regulation 12) are directly opposed to and inconsistent with the provisions of Section 10(1)(k) of the Act and consequently void and unenforceable.
14. The fact that the regulations may have the force of law or when made have to be laid down before the legislature concerned do not confer any more sanctity or immunity as though they are statutory provisions themselves. Consequently, when the power to make regulations are confined to certain limits and made to flow in a well defined canal within stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the courts are bound to ignore them when the question of their enforcement arise and the mere fact that there was no specific relief sought for to strike down or declare them ultra vires, particularly when the party in sufferance is a respondent to the lis or proceedings cannot confer any further sanctity or authority and validity which it is shown and found to obviously and patently lack. It would, therefore, be a myth to state that regulations made under Section 23 of the Act have "constitutional" and legal status, even unmindful of the fact that anyone or more of them are found to be not consistent with specific provisions of the Act itself. Thus, the regulations in question, which the AICTE could not have made so as to bind universities/UGC within the confines of the powers conferred upon it, cannot be enforced against or bind an University in the matter of any necessity to seek prior approval to commence a new department or course and programme in technical education in any university or any of its departments and constituent institutions."
The Apex Court in the said case held that when the power to make regulations is confined to certain limits and made to flow in a well-defined canal within stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the courts are bound to ignore them when the question of their enforcement arises and the mere fact that there was no specific relief sought for to strike down or declare them ultra vires, particularly when the party in sufferance is a respondent. The said observation cannot help the State in the present case, since it has not been established that the acquisition by the Central Government under the CBA Act, 1957 is beyond the scope of Act, 1957 or the acquisition is void or unenforceable. The said observations were made by the Apex Court after recording a finding that regulations made by the All India Council for Technical Education were beyond its scope and could not have covered the University.
Much emphasis has been laid down by Shri Yashwant Verma, learned Chief Standing Counsel on the act of the petitioner that the petitioner has been making the payment of lease rent throughout up to the year 2009-10 under protest and for the first time the protest has been made in the year 2010-11.
Shri A.K. Sinha, learned counsel for the petitioner replying the aforesaid submissions contended that the payment of lease rent is a continuing cause of action and the mere fact that in the earlier years the petitioner did not object and made the payment, shall not precluded the petitioner from challenging the illegal demand of the respondents. It is not disputed that the protest has been made by the petitioner before the payment of lease rent in the year 2010-11. The petitioner having raised the objection to the payment from the year 2010-11 although he has made the payment in the earlier years, shall not preclude the petitioner from challenging the illegal demand of the respondents. However, the petitioner having paid the lease rent in the earlier years, at best it should be a reason for not permitting the petitioner to lay any challenge with regard to the payments which were made without any protest.
Shri Yashwant Varma, learned Chief Standing Counsel has sought to justify the aforesaid payment made by the petitioner on the basis of the condition which is included as Condition No. 7 in the State Government's order dated 27/7/2007 as noted above. In this context it is relevant to note that prior approval was granted by the Central Government under Section 2 of the Act, 1980. Copy of the prior approval granted by the Central Government dated 06/7/2006 has been brought on record as Anxexure-9 to the writ petition. The conditions under which the approval was granted were mentioned in paragraph 2 as quoted above. The further conditions which could have been imposed were with regard to protection and improvement of flora and fauna in the forest area that too by Chief Conservator of Forest, (Central). Apart from the aforesaid conditions no basis or foundation for claiming the lease rent has been laid by the State in its pleading or oral submissions.
As noted above, the area having been acquired under the CBA, Act, 1957, and the entire field being covered by the MMDR Act, 1957, the State has no legislative competence which pronouncement has already been made by the Apex Court in the Constitution Bench judgment of State of West Bengal (supra). The State shall be denuded of any power to legislate in the matter or to exercise any executive under Article 162 of the Constitution. No satisfactory basis has been disclosed by the State Government for claiming the lease rent from the petitioner. The Condition No.7 which has been put in the Government Order dated 27/7/2007, being not supported by any legal basis cannot be permitted to operate against the petitioner at least from the date when the protest has been raised by the petitioner against such illegal demand of the respondents. The proposition laid down by the Apex Court in paragraph 14 of the Bharathidasan University (supra) which has been relied on by Shri Yashwant Varma, learned Chief Standing Counsel clearly supports the petitioner's contention that such conditions which are not supported by any statute have to be ignored even though there was no specific relief sought for to strike down or declare them ultra vires.
In view of the foregoing discussion, we are of the view that the petitioner is entitled for relief in this writ petition. The orders dated 23/3/2010,11/6/2010 and 31/7/2010, issued by the respondent no.2 are set-aside. A direction is issued to the respondents not to realize further lease rent from the petitioner. The respondents shall refund/adjust the amount paid by the petitioner for the year 2010-2011.
The writ petition is allowed accordingly.
Parties shall bear their own costs.
16/1/2013 SB