Srikant Tripathi vs State Of U.P. And 5 Others
2015 Latest Caselaw 5165 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. 3
 

 
Civil Misc. Writ Petition No. 62660 of 2015
 

 
Srikant Tripathi			-------				Petitioner
 
					Versus
 
State of U.P. & Ors.		-------				Respondents
 

 
Hon'ble Krishna Murari, J.

Hon'ble Raghvendra Kumar, J.

Petitioner has approached this Court seeking a writ of certiorari to quash the advertisement dated 16.09.2015 issued by District Magistrate, Sonbhadra, respondent no. 2 inviting application for grant of mining lease in respect of plot nos. 4783, 4785, 4786, 4787, 4811, 4812 and 4813, area 3.40 acre situate at village Billi Markundi, Tehsil Robertsganj, District Sonbhadra (hereinafter referred to as the 'plots in dispute').

According to the pleadings set out in the writ petition, the plots in dispute were jointly owned by one Ramdev and one Ghoorahu, father of respondent nos. 5 and 6, each having half share in the plots in dispute. Ramdev is alleged to have transferred his half share in favour of the petitioner through registered sale deed dated 30th June, 2009 and thereafter his name also came to be mutated in the revenue record in pursuance of an order dated 29.08.2009 passed by Naib Tehsildar, Robertsganj, District Sonbhadra under Section 34 of the Land Revenue Act in Case No. 616 of 2009. The plots in dispute along with certain other plots were subject matter of advertisement inviting applications for grant of mining lease. Respondent nos. 5 and 6 in pursuance whereof made an application in respect of plots in dispute. A No Objection Certificate dated 08.09.2015 is alleged to have been issued by the Divisional Forest Officer, Obra, Van Prabhag, Obra, District Sonbhadra. The petitioner on attaining knowledge of the fact, made a representation/objection before the District Magistrate, Sonbhadra dated 18.10.2015 seeking cancellation of the proceedings for granting mining lease in respect of plots in dispute on the allegation that he was share holder to the extent of the half share in the said plots and the respondent nos. 5 and 6 have not taken any No Objection Certificate from him. However, when no action has been taken, he has approached this Court by filing instant writ petition seeking the abovequoted relief.

We have heard Shri Madan Lal Srivastava, learned counsel for the petitioner and learned Standing Counsel representing the State respondents.

The main grievance of the petitioner is that he is co-tenure holder of the plots in dispute to the extent of half share and the application made by respondent nos. 5 and 6 for grant of mining lease in respect of said plots is liable to be rejected for want of no objection from him.

The Uttar Pradesh Minor Minerals (Concession) Rules, 1963 (for short the 'Rules) framed by the State of U.P. provides for grant of a mining lease or mining permit. Rule 3 of the Rules clearly prohibits any mining operation by any person within the State of any minor mineral to which the Rules are applicable, except under and in accordance with the terms and conditions of a mining lease or mining permit granted under the Rules. Sub-rule (2) of Rule 3 of the Rules provides that no mining lease or mining permit shall be granted otherwise than in accordance with the provisions of the Rules.

The statutory Rules governing the procedure and the conditions for grant of a mining lease or permit, do not prescribe any requirement for the consent of a land owner for grant of a mining lease or permit. On the contrary, Rule 67 of the Rules disentitles a person having any right in any capacity over the land covered by a mining lease or mining permit, to impose any prohibition or restriction on a right of a person holding any lease or permit to carry out such operation and such a person is only entitled for annual compensation for use of the surface either under an agreement with such person and in case of dispute between them for such sum as may be determined by the District Officer in the manner prescribed under Rule 67. It may be relevant to quote Rule 67, which reads as under.

"67. No restriction etc., to be imposed by owner of land on mining operation except demand of compensation.-(1) No person, who has right in any capacity on the land covered by a mining lease or mining permit, shall be entitled to impose any prohibition or restriction on the mining operations by the holder or such lease or permit of such land or to demand any sum by way of premium of royalty for the removal of minor mineral.

Provided that such person shall be entitled to get annual compensation from the said holder of mining lease or permit for the use of surface of the land for mining operations, as may be agree upon between them.

(2) Where the holder of a mining lease or permit and the owner of the surface of the land could not agree upon the amount of annual compensation and a dispute arises in respect thereof, it shall be determined by the District Officer in such manner that-

(a) in the case or agricultural land, the amount of annual compensation shall be worked out on the basis of the average annual net income from the cultivation of similar land for the past three years, and

(b) in the case of non-agricultural land, the amount of annual compensation shall be worked out on the basis of average annual letting value of similar land for the previous three years."

In view of provisions of Rule 67 and the mandate of Rule 3, no mining operation can be undertaken, by any person, of any minor mineral within the State to which the Rules are applicable, except in accordance with the terms and conditions of a mining lease or mining permit granted under the Rules, and land holder has a right only to claim compensation from the holder of the lease or of the mining permit in accordance with the provisions and the procedure prescribed by Rule 67. The scheme of the Rules is such that even a land holder cannot carry on mining operations without obtaining a valid mining lease or permit. Consent by a land owner is not a condition precedent to carry on mining operations. If a person is granted mining lease or permit under the Rules, he becomes entitled to carry on mining operation and he cannot restrained to do so by the land owner simply because his consent was not obtained. There is no requirement for grant of a consent or No Objection by the land owner.

The aforesaid view taken by us finds support from the judgment of the Hon'ble Apex Court in the case of Bhagwan Dass Vs. State of U.P. & Ors., AIR 1976 SC 1393, wherein the Hon'ble Apex Court while considering the provisions of Rule 67, in paragraph 14 of the report, has observed as under.

"We would like before closing to invite especial attention to Rule 67 of the Rules of 1963 under which a "person having a right in any capacity in the land covered by a mining lease or mining permit ..... shall be entitled to get compensation" from the holder of a mining lease or mining permit of such land for the use of the surface, which may be agreed upon between the parties. In case of any dispute, the amount of compensation has to be determined by the District Officer whose order assumes finality. The counter-affidavit filed by the State Government in the High Court concedes expressly, as it ought, that considering the fact that the person entitled to the use of a land may be prevented from using it by reason of a mining lease or permit, Rule 67 provides for the payment of compensation to him for such deprivation. When the right to conduct a mining operation is auctioned by the Government the person who is otherwise entitled to the user of the land, say for agricultural purposes, is deprived of its user and the object of Rule 67 is to ensure that he should be compensated adequately for the deprivation of such user."

In view of the above facts and discussions, the petitioner cannot be held entitled to raise any objection either in respect of grant of mining permit/lease for mining operations for inclusion of his plots in the advertisement in accordance with law and the procedure prescribed by the Rules, for want of a No Objection from him.

This writ petition is, thus, devoid of any merit and, accordingly, stands dismissed in limine.

08.12.2015

VKS