Shambhu Singh vs State Of Raj & Anr on 30 March, 2012

[Cites 13, Cited by 1]

Rajasthan High Court - Jaipur

Shambhu Singh vs State Of Raj & Anr on 30 March, 2012

In the writ petition, the petitioner has questioned the constitutional validity of Clause-12 of the Marble Policy, 2002 to the extent of condition of obtaining no objection certificate from the Khatedar/ land owner before sanction of mining lease.

It is averred in the petition that the petitioner has applied for obtaining mining lease for mineral marble situated near Village Nizarana, Tehsil and District Rajsamand. He filed application for grant of mining lease on 11.5.2009. The State Government in exercise of powers conferred under Rule 65A of the Rajasthan Minor Mineral Concession Rules, 1986 (hereinafter referred to as the Rules of 1986), has framed Marble Policy of 2002 which was made effective vide notification dated 1.3.2002. As per Clause-12 of the Marble Policy, in case of Khatedari or other private land mining lease/quarry licence shall be granted or renewed in favour of Khatedar or private land holder or such other person having acquired surface rights from the Khatedar or land owner on the basis of mutual legal agreement and subject to the conditions that the applicant agrees to undertake mining operations by deploying the mine machinery prescribed in Annexure-1. Proviso also makes it clear that where available area is less than 2 hectares and surrounded by two or more existing lease/quarry license as provided in Rule 11 of the Rules of 1986, it shall be granted to anyone adjoining lessee/quarry holder on the basis of NOC of the Khatedar/land holder to such person and the new area shall be added to the existing lease/quarry licence.

The petitioner has questioned legality of the aforesaid Clause-12 of the Marble Policy on the ground that under Section 24A of the Mines and Minerals (Development and Regulations) Act 1957 (hereinafter referred to as the Act of 1957), notice is required to be given to the occupier of seven days after lease has been granted before actual entry is made by the lease holder. Thus, it is submitted that Clause-12 of the Marble Policy runs contrary to the intent of Section 24A of the Act of 1957. Reliance has also been placed upon Section 24A(2) to contend that compensation is payable to the occupier of the land with respect to loss or damage which is likely to arise or has arisen in consequence of the reconnaissance mining of prospecting operations. Consequently, no NOC or consent should be required.

Reliance has also been placed upon Section 89(3) of the Rajasthan Land Revenue Act, 1956 (hereafter referred to as the Act of 1956) which provides that if the State Government has assigned to any person its right over any minerals, mines or quarries, notice has to be served upon all persons having rights in the land effected and their objections have to be heard and considered. It is further provided in Section 89(4) of the Act of 1956 that in exercise of the right herein referred to over any land, the rights of any persons are infringed by the occupation or disturbance of the surface of such land, the State Government or its assignee shall pay to such persons compensation for such infringement and the amount of such compensation shall be calculated by the Collector, or if his award is not accepted, by the civil court, as nearly as may be in accordance with the provisions of the Rajasthan Land Acquisition Act, 1953. Relying on Rule-18(29) of the Rules of 1986, the petitioner has submitted that Clause-12 of the Marble Policy, 2002 is ultra vires to the statutory provisions of the Act of 1957 and Rules of 1986.

In the return filed by the State Government it is contended that the Marble Policy has been framed under Rule-65A of the Rules of 1986. The Policy is not in contravention of the provisions of the Act. Petitioner has failed to furnish NOC from the Khatedar as per Clause-12 of the Policy. Even under the rules of 1986, consent of Khatedar is necessary before mining is undertaken. Policy has been framed to prevent illegal mining activities and to develop the minerals. No case for interference in the writ petition is made out.

Rejoinder has also been filed by the petitioner reiterating the submissions made in the writ petition. Reliance has been placed on the provisions of Sections 89(4) and 89(5) of the Act of 1956. It was further reiterated that the condition prescribed under the Marble Policy is contrary to the object of the Act of 1957 and the Rules of 1986.

Shri Kamlakar Sharma, learned senior counsel appearing on behalf of the petitioner with Shri Govind Rawat has submitted that Section 24A(2) of the Act of 1957 provides for liability to pay compensation that has to be determined as per Section 89(4) of the Act of 1956 and as per Section 89(5) of the Act of 1956, no assignee of the State Government shall enter on or occupy the surface of any land without previous sanction of the Collector, unless the compensation has been determined and tendered to the person whose rights are infringed. As such, Clause-12 of the Marble Policy contemplating consent to be obtained from Khatedar is repugnant to the spirit of the provisions of the Act of 1957 and Section 89 of the Act of 1956. He has also submitted that Rule 18(29) of the Rules of 1986 clearly provides that consent would be necessary at the stage of entering upon the surface after lease has been granted not before hand. The policy thus runs contrary to intent of Rule 18(29) of the Rules of 1986.

Learned senior counsel on behalf of petitioner has also relied upon Rule 22(3)(i)(h) of the Mineral Concession Rules, 1960 to contend that though statement in writing is required to be filed that applicant has obtained surface rights over the area or has obtained consent of the owner for starting mining operations provided that no such statement shall be necessary where the land is owned by the Government. It has been further provided that such consent of the owner for starting mining operations in the area or part thereof may be furnished after execution of the lease deed but before entering into the said area. Thus, Clause-12 of the Marble Policy providing obtaining consent of the Khatedar before grant of lease is illegal and ultra vires and impracticable provision as lease has to be granted of contiguous plots of the land and certain area may be falling in midst of the area which may be owned by the Khatedars. Thus, there is no rhyme or reason to obtain NOC/ consent before grant of lease of large area, it can be insisted at the stage before entry is made or, mining operation is undertaken.

Shri Zakir Hussain, learned Additional Advocate General appearing on behalf of the respondent State has submitted that the Marble Policy, 2002 has been framed under Rule-65A of the Rules of 1986. There is specific provision in Rule-65A for grant of mineral concession by adopting a different procedure then given in the Rules. Even otherwise, there is no departure made from the Rules of 1986 in the Marble Policy, 2002. Consent of Khatedar is necessary before entering into his land or to carry out mining operation. By making a provision in policy that consent should be obtained before area of Khatedar is leased is to prevent complications which may arise after grant of lease, it does not run against Rules. The stage of consent is a procedural aspect. The Policy of 2002 is not repugnant to the provisions of the Act of 1957, Rules of 1986 or the Act of 1956.

Before adverting to the rival submissions, it is necessary to take note of the provisions of Acts and Rules referred at bar. Provision of Section 24A of the Act of 1957 deals with rights and liabilities of a holder of prospecting licence or mining lease. Section 24A is quoted below:-

24A. Rights and liabilities of a holder of prospecting licence or mining lease.- (1) On the issue of a [reconnaissance permit, prospecting licence or mining lease] under this Act and the rules made thereunder, it shall be lawful for the [holder of such permit, licence or lease], his agents or his servants or workmen to enter the lands over which [such permit, lease or licence had been granted] at all times during its currency and carry out all such [reconnaissance, prospecting or mining operations] as may be prescribed:

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 so.

(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 such manner as may be prescribed to the occupier of the surface of the land granted under [such permit, licence or lease] for any loss or damage which is likely to arise or has arisen from or in consequence of the [reconnaissance, mining or prospecting operations].

(3) The amount of compensation payable under sub-section(2) shall be determined by the State Government in the manner prescribed.

Sections 89(3), 89(4) and 89(5) of the Act of 1956 have also been relied upon. Section 89 reads as under:-

"Section 89 : Right to minerals, mines, quarries and fisheries- The right to all minerals, mines and quarries and to all fisheries, navigation and irrigation in and from, a river shall vest in the State Government and the State Government shall, have all powers necessary for the enjoyment of such a right.

(2) The right to all mines and quarries includes the right of access to land for the purpose of mining and quarrying and the right to occupy such other land as may be necessary for purposes subsidiary thereto, including the erection of offices, workmen's dwellings and machinery, the staking of minerals and deposit of refuse, the construction of roads, railways or tram lines, and any other purposes which the State Govt. may declare to the subsidiary to mining and quarrying.

(3) If the State Govt. has assigned to any person its right over any minerals, mines or quarries, and if for the proper enjoyment of such right, it is necessary that all or any of the powers specified in Sub-sections (1) and (2) should be exercised by such person, the Collector may, by an order in writing, subject to such conditions and reservations as he may prescribe; delegate such powers to the person to whom the right has been assigned:

Provided that no such delegation shall be made until notice has been duly served on all persons having rights in the land effected and their objections have been heard and considered.

(4) If, in the exercise of the right herein referred to over any land, the rights of any persons are infringed by the occupation or disturbance of the surface of such land, the State Govt. or its assignee shall pay to such persons compensation for such infringement and the amount of such compensation shall be calculated by the Collector, or, if his award is not accepted by the Civil Court, as nearly as may be, in accordance with the provisions of the Rajasthan Land Acquisition Act, 1953, (5) No assignee of the State Govt. shall enter on or occupy the surface of any land without the previous sanction of the Collector, unless the compensation has been determined and tendered to the person whose rights are infringed.

(6) If any assignee of the Stale Govt. fails to pay compensation as provided in Sub-section (4), the Collector may recover such compensation from him on behalf of the person entitled to it, as if it were an arrear of land revenue.

(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 State Govt., 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 a penalty not exceeding a sum calculated at the rate of fifty rupees per ton, or a fraction thereof, of the minerals so extracted or removed :

Provided that if the sum so calculated is less than one thousand rupees the penalty may be such larger sum not exceeding one thousand rupees as the Collector may impose."

Rule-18(29) of the Rules of 1986 which deals with the consent of the Khatedar is also quoted below:-

18(29) The Lessee/Lessees shall abstain from entering upon the surface of any occupied Government land or of any private land comprised within the leased area without previously obtaining the consent of the occupant in writing.

Rule-65A of the Rules of 1986 under which the Marble Policy, 2002 has been framed reads as under:-

65A. Grant of mineral concessions by adopting procedure different from the given in the Rules.- Notwithstanding anything contained in these rules, Government may, by notification in Rajasthan Gazette or at least one daily newspaper having wide circulation in the State as well as one news paper having wide circulation in the locality nearest to the area in question adopt any method or procedure different from that provided in the rules for leasing out mineral deposit in the interest of mineral development.

A reading of Proviso to Section 24A(1) of the Act of 1957 makes it clear 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 so. Section 24A(1) does not dealt with proposition whether consent is necessary before grant of lease. However, it provides that before entry is made, consent is necessary and notice in writing of seven days has to be given. The fact remains that consent has been made imperative before entering into the building or upon an enclosed court or garden attached to a dwelling house.

Under Section 24A(2) of the Act of 1957, compensation is payable in such manner as may be prescribed to the occupier of surface of the land for damage or loss which is likely to arise or has arisen from or in consequence of the reconnaissance, mining or prospecting operations. Such compensation has to be determined as provided under Section 89 of the Act of 1956 which makes it clear that government may assign any person its right over any minerals, mines or quarries. Such right has to be exercised subject to such conditions and reservations as the State Government/Collector may prescribe. Section 89(4) provides obligation upon the State Government or its assignee to pay to such person compensation for such infringement by occupation or disturbance of surface of such land. The amount of such compensation as determined by the Collector and if awarded is not accepted it is to be determined by civil court as nearly as may be in accordance with the provisions of the Rajasthan Land Acquisition Act, 1953. Section 89(5) of the Act of 1956 provides that no assignee of the State Government shall enter on or occupy the surface of any land without the previous sanction of the Collector, unless the compensation has been determined and tendered to the person whose rights are infringed.

No doubt about it that Section 24A(2) of the Act of 1957 and Sections 89(4) and 89(5) of the Act of 1956 make it imperative to make the payment of compensation to an incumbent whose rights are infringed by occupation or disturbance of the surface of such land of which lease is granted. The essence of the provisions is that the person has to be adequately compensated whose surface rights are affected.

Rule-18(29) of the Rules of 1986 provides that no mining can be done without previously obtaining consent of the occupant in writing, the lessee/lessees cannot even enter upon the surface of any occupied government land or of any private land comprised within the leased area. Rule-18(29) of the Rules of 1986 clearly provides consent in writing of the occupier. Thus, in our opinion, as per Rule 18(29) of the Rules of 1986 also consent in writing is necessary to be obtained before entering upon the surface much less for mining. Thus, in our considered opinion, for any kind of mining or entering upon the surface, written consent is necessary in the Rules of 1986. The provisions contained in Policy of 2002 are in accordance with Rules.

The Marble Policy, 2002 has been framed under Rule-65A of the Rules of 1986. Rule-65A clearly permits departure with respect to procedural aspects given under the Rules. It is permissible to adopt any method or procedure different from that provided in the rules for leasing out mineral deposit in the interest of mineral development. Whereas, provisions of the Act of 1957 and the Rules of 1986 are silent with respect to obtaining consent before entry is made. In our opinion, provisions for stage of obtaining consent is a procedural aspect. The Clause-12 of Policy provides it before grant of lease is a procedural departure which has been made, same is permissible in view of specific provision and authority conferred to the State Government under Rule-65A of the Rules of 1986. Essence of the Rules of 1986 is that written permission is necessary before entering on land or undertaking mining. Vires of Rules-18(29) or 65A of the Rules of 1986 has not been questioned which makes such consent imperative and enables departure from procedure. Rule-65A authorizes the government to make departure in the procedure. Under the Clause-12 of Policy, consent has been made imperative before grant of lease. In our opinion, the provisions contained in Clause-12 of the Marble Policy framed under Rule-65A which has force of law, cannot be said to be repugnant to the provisions of Rules of 1986 or that of Act of 1957 or the Act of 1956.

It was also submitted by Shri Kamlakar Sharma, learned senior counsel appearing on behalf of the petitioner that it would be impracticable that NOC/consent to be obtained before grant of lease as sometime grant of lease may not be possible after exclusion of the area of Khatedar who may be holding small piece of land in the area to be leased. The submission cannot be accepted as in any case before entry on the surface or before undertaking any kind of mining, Rule 18(29) of the Rules of 1986 also provides to obtain the consent in writing. The same spirit has been engrafted in the Policy of 2002 with slight departure that such consent has to be obtained in the cases of grant of private land held on khatedari rights before grant of lease. In our opinion, when essence is that no entry or mining operation is permissible and mining cannot be done without consent. It is advisable to obtain consent of a Khatedar in the cases of grant of lease before hand as that would prevent several complications which may arise after lease is granted as entry/mining operations in an area are not permissible without such consent and as such, lease itself would become futile. Thus, while making provisions of obtaining consent before the lease is granted in Clause-12 of Policy of 2002, we find that no arbitrariness has been committed by the State Government.

The Apex Court in Pallava Granites Industries India (P) Ltd. Vs. Government of Andhra Pradesh & Ors., AIR 1997 SC 2098 : 1997(4) SCC 559 has laid down that 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 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 land owners. 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. Similar is the provision in the present case made in Clause-12 of the Marble Policy, 2002. The decision of the Andhra Pradesh High Court in Pallav Granites Industries India (P) Ltd. Vs. Government of Andhra Pradesh & Ors., 1997 AIHC 319 was affirmed by Their Lordships of the Supreme Court in the aforesaid case.

In Raja Veligoti Venkata Sesha Varada Raja Gopalkrishna Yachendra Vs. Union of India & Ors., AIR 2004 AP 179, consent was contemplated under Rule 22(3)(i)(h) of the Mineral Concession Rules, 1960. Thus, it was held that when consent was contemplated at the time of grant of lease, no further consent is required in case of renewal. The consent at the time of renewal was held not necessary. The decision laid down that consent of the Landlord is necessary as per aforesaid rule.

The Division Bench of this court in Purkha Ram Vs. State of Rajasthan & Ors., DB Civil Writ Petition No.12674/11 decided on 19.12.2011 has considered the condition mentioned in the circular dated 30.9.2010 where consent of Khatedar was made imperative before renewal in clause 4 of the Circular. Condition mentioned in Clause-3 of the Circular was questioned which provided that consent of the Khatedar by lease holder before any mining operation is started in the Khatedari land is necessary. The aforesaid provision has been held not to be suffering with any illegality or arbitrariness.

Shri Kamlakar Sharma learned senior counsel appearing on behalf of the petitioner has relied upon the decision of the Apex Court in State of Tamil Nadu Vs. M.P.P. Kavery Chetty, AIR 1995 SC 858 in which provisions contained in Rule-19A of the T.N. Minor Mineral Concession Rules, 1959 came up for consideration. Rule-19A did not provide for consent of the owner of the land to be a condition precedent. Section 24A of the Act of 1957 was noted by Their Lordships. There is obligation to compensate the land owner for any loss or damage that his operations may cause. Consent of the occupier is required only when the holder of the lease desires entry into any building or enclosed court or garden. Rule-19A of T.N. Minor Mineral Concession Rules, 1959 came up for consideration before the Apex Court which provision appears to be different then the provisions of Clause-12 of the Marble Policy, 2002 in question framed under Rule-65A of the Rules of 1986.

Reliance has also been placed on the decision of the Full Bench of this court in Mohd. Bux Vs. State of Rajasthan & Ors., 1993(1) RLR 11 in which Rule-4(3) of the Rajasthan Minor Mineral Concession Rules, 1977 came up for consideration where it required no objection certificate from Colonisation Commissioner for granting mining lease in colony under the Rajasthan Colonisation Act, 1954 and the conditions framed in the year 1966 was held to be invalid and ultra vires. The Full Bench of this court dealt with altogether a different provision and in different factual matrix. The condition of obtaining consent of colonisation commissioner was under different Act. Thus, decision on aforesaid condition does not carry the case of the petitioner to the logical end canvassed in the petition.

Reliance has also been placed on the decision of the High Court of Allahabad in Dinesh Pratap Dwivedi Vs. State of Uttar Pradesh & Ors., 1995 ALL.L.J. 872, wherein question came up for consideration that under U.P. Minor Minerals (Concession) Rules, 1963, consent of land owner was not necessary under statutory Rules. Government issued circular stating that consent of land owner should be considered for giving preferential treatment when two applications received for identical land. It was held that circular cannot override statutory Rules. The aforesaid decision has no application in the facts of the instant case in view of clear provisions made in the Rules of 1986 as well as in the Marble Policy, 2002 which has been framed under Rule 65A of the Rules of 1986. In our opinion also land owner cannot give consent to particular individual, in case he gives consent area has to be treated as available for mining to applicant/applicants; entitlement to be decided by competent authority under Rules or Acts as the case may be.

Reliance has also been placed by Shri Kamlakar Sharma, learned senior counsel, on the decision of the Single Bench in Kailash Chand Mangla Vs. State of Rajasthan & Anr., Civil Misc. Appeal No.216/97 decided on 1.7.1997 in which it has laid down while deciding appeal arising out of interim injunction order that consent is necessary under Rule-18(29) of the Rules of 1986 only when a lessee enters upon the land for which mining lease has been granted. However, in our opinion, in view of specific provision made in Clause-12 of the Marble Policy, 2002, which has been framed under Rule-65A of the Rules of 1986, we find that no assistance can be derived from the aforesaid decision of the Single Bench.

The Division Bench of this court in State of Rajasthan & Ors. Vs. National Limestone Co. (P) Ltd., 2008(5) WLC (Raj.) 681 has upheld the validity of the circular dated 15.11.1995 laying down that every application for grant of renewal of a mining lease shall be accompanied by a statement in writing that the applicant has, where the land is not owned by him, obtained surface rights over the area or has obtained the consent of the owner for starting mining operations. Similar is the provision made in Clause-12 of the Marble Policy, 2002.

Shri Kamlakar Sharma, learned senior counsel has also submitted that State Government cannot act in violation of statutory rules. For this, reliance has been placed on Punjab Water Supply and Sewerage Board Vs. Hari Har Yadav & Ors., AIR 2007 SC 1082, Union of India & Anr. Vs. Central Electrical and Mechanical Engineering Service Group A & Ors., AIR 2008 SC 3, M/s. Bharat Coking Coal Ltd. Vs. State of Bihar & Ors., JT 1990(3) SC 533, M/s. T.R. Chemicals Ltd. & Anr. Vs. State of Orissa & Anr., AIR 2008 ORISSA 126. He contended that the policy cannot override the statutory provisions. In our considered opinion, the Marble Policy, 2002 cannot be said to be in violation of the Rules of 1986. Rules of 1986 provide for consent before entry is made or mining is undertaken, stage of obtaining consent is not specifically dealt with even if it is taken that same is to be obtained after grant of lease as stage of consent is a procedural aspect and for this, any method or procedure which is different can be prescribed in Policy by State Government as provided under Rule-65A of the Rules of 1986. The Clause-12 of Policy is in terms of Rules of 1986. Thus, there is no statutory violation made in Policy, 2002 by making procedural provision to obtaining the consent imperative before lease is granted. There is no violation of provisions of the Act of 1956 or the Rules of 1986. As such, ratio of the aforesaid decisions is not attracted in the instant case.

It was also submitted that validity of Section 89 of the Rajasthan Land Revenue Act has also been upheld in Magh Singh Vs. State of Raj. & Ors., 1995(1) WLC 731 and Hasmat Tara & Ors. Vs. Board of Revenue, AIR 1999 Rajasthan 163. Provisions of Section 89 of the Act of 1956 have a different object to be achieved of payment of compensation as value of land of Khatedar or owner may diminish. Even in the rules obtaining of consent is made imperative before entry/mining operation. Thus, Clause-12 of the Marble Policy, 2002 cannot be said to be unconstitutional, illegal or arbitrary or repugnant to the provisions of the Act of 1957 and the Rules of 1986 in any manner whatsoever. Consequently, we find challenge to vires of Clause-12 of the Marble Policy, 2002 to be without substance.

Resultantly, the writ petition is liable to be dismissed and it is hereby dismissed. However, the parties are left to bear their own costs.

(NARENDRA KUMAR JAIN-I)J.	    	   (ARUN MISHRA)CJ.


	  GS

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Rajasthan High Court - Jaipur