Madhya Pradesh High Court
Trilokinath Agrawal vs The State Of Madhya Pradesh Judgement ... on 26 September, 2013
HIGH COURT OF MADHYA PRADESH, JABALPUR
WRIT APPEAL NO.1393 OF 2006
Trilokinath Agrawal,
S/o Shri Shyam Sunder Agrawal,
Aged about 56 years,
R/o Civil Lines, Katni,
District Katni (M.P.)
.... Appellant
Versus
1. State of Madhya Pradesh
Mineral Resources Departmental
Through - its Principal Secretary,
Vallabh Bhavan,
Bhopal (M.P.)
2. Government of India,
Ministry of Mines,
Department of Mines,
Shastri Bhawan,
New Delhi
3 The Collector, Katni
District Katni (M.P.)
.... Respondents
Present : Hon. Shri Justice Krishn Kumar Lahoti, Acting C.J.
Hon. Shri Justice Rohit Arya
Shri Sankalp Kochar, learned counsel for appellant.
Shri Samdarshi Tiwari, G.A., for the respondents.
Shri Naman Nagrath, learned Senior Advocate with Shri Himanshu
Mishra, counsel for Shri R.N.Swami, intervener.
JUDGMENT
(26.9.2013) Per Krishn Kumar Lahoti, Acting Chief Justice :
This appeal is directed under section 2 of the M.P.Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, 2 W.A.No.1393/2006 Trilokinath Agrawal Vs. State of M.P. & others aggrieved by an order dated 3.12.2001 passed by Single Bench in Writ Petition No.2222/2001, in M.C.C.No.351/2002 dated 3.5.2002 and in M.C.C.No.1062/2003 dated 19.3.2004. By order dated 3.12.2001 the learned Single Judge after considering the matter at length decided the matter by an order, operative part of which reads thus :-
"It is submitted by Mr.Dhande that the Apex Court was dealing with the rights of a lessee to enter upon the land and carry on mining operation but it has nothing to do with grant of prospecting licence. In this batch of cases without delving into the said broader issue, the matter can be disposed of on the basis of the obtaining factual matrix. It is submitted by Mr.Jain that some of the lands belong to the petitioner and in respect of some the petitioner has obtained the consent. He has referred to the certain documents to highlight that he has obtained the consent in respect of certain khasra Nos. It was fairly admitted by the learned counsel appearing for the parties that the dispute arises with regard to consent in respect of 2.55 acres of land by the respondent No.4 in certain writ petitions and 3.80 of land by the applicant represented by Mr.Dhande. Thus as far as the remaining land is concerned there is no quarrel with regard to ownership or consent obtained from the 'Bumiswami'. As the respondent No.4 had no consent from the Bhumiswami, direction for consideration of his application is sans substance and infact, that would be an exercise in futility and, therefore, I conclude that grant of licence in respect of the remaining area (excluding the area of 2.55 and 3.80 acres) is final and the State Government is directed to do the needful in that regard. As far as the rest of the area is concerned the State Government shall scrutinise in detail with regard to genuineness of the consent obtained by the petitioner in respect of 2.55 hectares of land from the concerned Bhumiswami. The State Government shall address itself with regard to the consent given by the land holders in respect of 3.80 hectare and also with regard to findings whether the land holder could have withdrawn the consent at a later point of time. The State Government while dealing with this aspect shall keep in view the concept of priority and the concept of earlier consent. The State Government shall decide the matter after hearing necessary parties within a period of three months from the date of receipt of the order passed today. The order passed by the Central Government is modified to the extent indicated above."3
W.A.No.1393/2006 Trilokinath Agrawal Vs. State of M.P. & others Thereafter the appellant herein had filed a review petition which was registered as M.C.C.No.351/2002, but it was dismissed by an order dated 3.5.2002. Another review petition was filed against the order dated 3.5.2002, which was registered as M.C.C.No.1062/2002, but it was also dismissed by an order dated 19.3.2004. Against these orders this appeal has been preferred.
2. The short question involved in this case is whether the writ Court has not considered the matter in proper perspective or has not decided the matter in respect of lands of which area is 4.86 hectares. Though this case is having very chequered history since 1973, but it is not necessary to refer all those facts, as these find place in para 2 & 3 of the order passed by the writ Court. Before the writ Court orders dated 23.4.1997 Annexure A-2 passed by the State of Madhya Pradesh, Mineral Resource Department and Annexure A-3 dated 21.3.2001 by Government of India were under challenge.
3. The facts necessary for deciding this case are that the appellant herein had applied for allotment of/grant of mining lease for, 37.44 hectares of land, details of the land are appearing on page no.40 of the paper book. The lands can be categorized under three heads, namely land belonging to the appellant, the land belonging to others, for which the appellant had filed the consent by the Bhumiswami for the grant of mining lease to the appellant. The third category belongs to land of other Bhumiswamis and uncultivated land in respect of which no consent was filed of the Bhumiswamis. The State Government had referred the matter for a report from the Collector, Mining Branch, Katni, who had submitted his report Annexure A-1. Thereafter the decision Annexure A-2 was taken by the State, by 4 W.A.No.1393/2006 Trilokinath Agrawal Vs. State of M.P. & others which the State Government had decided to grant mining lease to the appellant for 32.48 hectares of land. These lands belong to the appellant including the land in respect of which the appellant had submitted consent of Bhumiswami for grant of mining lease to the appellant. The mining lease is of major mineral namely limestone and dolomite. In respect of remaining lands for which consent of Bhumiswamis was not filed, though applied by the appellant, the appellant was not granted mining lease. Against the order dated 23.4.1997 the appellant herein had preferred a revision before the Central Government, which was decided by the order Annexure A-3 and the whole matter was remanded back to the State Government for a fresh disposal as per the law and after affording due opportunity under Rule 26(1) of the Mineral Concession Rules, 1960. This order was challenged before the writ Court.
4. The contention of the appellant is that there was no question of remand to the State Government by the Central Government. The State Government had also erred in not granting 4.86 hectares of land merely on the ground that consent of the Bhumiswami was not filed by the appellant before the State Government. As per the provisions under the Act, there was no requirement of filing consent of the land owners. However such consent could have been required at the time of entering on the land for a mining purpose, but for grant of mining lease the consent was not required. It is also submitted by Shri Kochar, learned counsel for appellant, that in this regard the Central Government had specifically observed in the impugned order that no consent was required.
5. Learned counsel for State and Shri Naman Nagrath, learned 5 W.A.No.1393/2006 Trilokinath Agrawal Vs. State of M.P. & others Senior Advocate appearing on behalf of Shri R.N.Swami, intervener have supported the order, however it was submitted by them that the remand order dated 3.12.2001 has already been given effect to and the State Government has passed an order granting mining lease to the appellant in respect of part of the land and has rejected the application in respect of the part of land. It is also submitted by them that the subsequent order passed by the State Government, in compliance of the order passed by the writ Court and Central Government is sub judice in two writ petitions bearing W.P.No.6381/2005 and W.P.No.13528/2007, which are pending before this Court, so this appeal has been rendered infructuous and may be dismissed.
6. The aforesaid contention is vehemently opposed by Shri Sankalp Kochar, learned counsel for appellant who submitted that the moot question of filing consent of Bhumiswamis still remains to be decided and if that question is decided the consequence would be that the subsequent orders passed by the State Government may be ignored. The question which has been raised by Shri Kochar is that whether the consent of other Bhumiswamis in respect of which appellant had applied for mining lease was necessary at the time of filing of the application or not.
7. To consider the aforesaid contention it would be appropriate if ground no.6.1, of the present writ petition is referred, which reads thus :-
"6.1 Because the respondent no.2 failed to see that the petitioner is having consent of bhumiswami and as such entitled for the grant in preference to the others over the area of which he is owner and having consent of bhumiswami's. The Hon'ble Supreme Court in Pallav Granites matter reported in AIR 1997 SC 2098 very specifically held that without consent the area cannot be granted. Thus the order 6 W.A.No.1393/2006 Trilokinath Agrawal Vs. State of M.P. & others dt.23.4.97 is apparently illegal and is liable to be set aside."
In this case the appellant has not filed copy of the application, which was filed before the State Government for grant of mining lease and in absence of which the factual position that whether the consent in respect of lands area 4.86 hectares was filed or not or what were the content of the application cannot be ascertained. The case was decided by the State Government on the premises that the appellant had applied for his own land and in respect of land of other Bhumiswamis, for which consents were filed. In respect of these two types of lands, area of which was 32.84 hectares the lease was recommended. However in respect of land 4.86 hectares is concerned the application was not allowed on the ground that no consent of such Bhumiswamis were filed alongwith the application.
8. Now in the light of ground no.6.1 of the petition, we find that it was the case of appellant before the writ Court that he had filed consent of Bhumiswami's in respect of land for which the appellant had applied for grant of mining lease. No contention was raised before the writ Court that the consent of the Bhumiswamis were not required for the grant of mining lease. In absence of such contention before the writ Court, there was no occasion for the writ Court to consider the ground which was neither pleaded nor agitated before the writ Court. The matter was remanded back by the Central Government to the State Government for deciding the matter in accordance with the directions issued in this regard. It appears that the question which has been raised by the appellant, before this Court, does not arise for consideration as there is no foundation in the writ petition in this regard. Though the appellant has argued the matter for a considerable long period on the ground that the 7 W.A.No.1393/2006 Trilokinath Agrawal Vs. State of M.P. & others consent was not required of other Bhumiswamis in respect of the land to which appellant had applied for mining lease, but there is no foundation in this regard, in the writ petition. In view of aforesaid, we do not find any merit in argument, most pressed by the appellant.
9. So far as other contention of the appellant is concerned, as the matter has been remanded by the writ Court on the ground that when another bhumiswami had withdrawn the consent, which matter deserves to be enquired into by the State Government in respect of the remaining area and the State Government had been directed to scrutinise in detail with regard to the genuineness of the document filed by the appellant in respect of 2.55 hectares of land by the Bhumiswami. The State Government had been further directed to enquire into about the consent for 3.80 hectares of land including the question whether such consent could have been withdrawn at later point of time. As the State Government has already decided the matter against which two writ petitions are pending before this Court, it would not be appropriate for this Court to decide the matter at this juncture. The appellant herein and Shri R.N.Swami have preferred writ petitions before the writ Court, they shall be free to agitate their grievance before the writ Court.
10. Though the learned counsel for appellant has submitted that the consent of land owners was not required, but the Apex Court in Pallava Granites Industrial India (P) Ltd. Vs. Government of A.P. and others [(1997) 4 SCC 559] has considered this aspect in para 3, which reads thus :-
"3. We find no force in the contention. The right to excavate the mines from the land of private owner is based on the agreement; unless the lessor gives his consent, no lessee has a right to enter 8 W.A.No.1393/2006 Trilokinath Agrawal Vs. State of M.P. & others upon his land and carry on mining operations. The right to grant mining lease to excavate the mines beneath the surface is subject to the agreement of the landowners. Therefore, with a view to ensure that there will not be any obstruction in the working of the mining lease and also for the peaceful operation of the excavation of the mines, insistence on the consent of the landlord is necessary. Therefore, we do not find any illegality in the view taken by the High Court warranting interference."
Though it was submitted by the appellant that the aforesaid order has been passed in reference to the provision as applicable in the State of Andhra Pradesh, but from the reading of entire judgment we do not find any such direction in the judgment. In view of aforesaid, this contention of the appellant also has no force and is accordingly repelled.
11. In view of aforesaid, we do not find any merit in this writ appeal, which is filed against the order dated 3.12.2001. This appeal is dismissed. However the appellant shall be free to agitate all his other grievance before the writ Court in pending W.P.No.6381/2005 and W.P.No.13528/2007. There shall be no order as to costs.
(Krishn Kumar Lahoti) (Rohit Arya)
Acting Chief Justice Judge
.9.2013 .9.2013
M.